Terms of Use

Published October 10, 2025
Last Modified: July 10, 2026

These GENERAL TERMS & CONDITIONS FOR WE ARE HERE SERVICES (these “Terms,” and together with the applicable Order(s), the "Agreement") set forth the terms and conditions pursuant to which We Are Here, Inc., a Delaware corporation with a principal office at 4810 Spicewood Springs Rd., Ste 207, Austin, TX 78759 ("Company"), shall provide the Services contemplated by the Order(s) to the customer listed thereon (“Customer”). Company and Customer are individually referred to as a “Party” and collectively as the “Parties”. Each Order is subject to these Terms. Capitalized terms used herein but not defined herein have the meanings ascribed to them in the Order. In consideration of the mutual promises contained herein, the Parties agree as follows:

1. DEFINITIONS

1.1. “Administrator” means a Representative of Customer (or the applicable Customer Location) who has been designated by Customer to be the single point of contact to manage the relationship with Company and We Are Here and the Services.

1.2. “Authorized Users” means the Healthcare Workers, Patients, and other users who have been authorized by Customer (or the applicable Customer Location) to access and use the Services.

1.3. “Business Day” means a day other than a Saturday, Sunday or any U.S. federal holidays.

1.4 “Consultative Services” means any hourly consultative, advisory, technical support, systems integration, additional training, or similar services provided by Company on a time-and-materials basis, as provided in the applicable Order.

1.5. “Customer Location” means a customer facility where any of the Services are used or accessed hereunder.

1.6. “Documentation” means text and/or graphical documentation related to the Services, in printed format, or otherwise that describes the features, functions and restrictions of the Services, which documentation is designed to facilitate the use of the Services, and which are made available by Company to the Customer.

1.7. “Healthcare Workers” includes nurses, nurse navigators, social workers, lay navigators and any other personnel designated by Customer to receive access to the We Are Here Platform.

1.8. “Implementation Services” means any software set-up and configuration, user set-up, and implementation to be provided by Company, as provided in the applicable Order.

1.9. “Intellectual Property Rights” means all (i) patents, patent disclosures and inventions (whether patentable or not), (ii) trademarks, service marks, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, (iii) copyrights and copyrightable works (including computer programs), and rights in data and databases, (iv) trade secrets, know-how and other confidential information, and (v) all other intellectual property rights, in each case whether registered or unregistered and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection in any part of the world.

1.10. “Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree or other requirement or rule of any federal, state, local or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction.

1.11. “Losses” means all claims, demands, losses, injuries (including personal injury, sickness, or death), damages (including property damage), liabilities, deficiencies, actions, judgements, interest, awards, penalties, fines, costs or expenses of whatever kind, and other liabilities of any kind or nature, whether sounding in contract, tort, strict liability or otherwise, including reasonable attorneys’ fees and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.

1.12. “Navigation Services” means any We Are Here-provided lay navigation services to be provided by Company, as provided in the applicable Order. 

1.13. “Order” means a separate order form or statement of work that is executed by the Parties that references these Terms and sets forth specific Services to be provided by Company to Customer, and any other relevant details related to such Services, including applicable Fees.

1.14. “Patients” means individuals who are receiving or seeking healthcare, wellness behavioral health, medical, dental care, treatment support, advocacy, education, navigation, care coordination, or other health-related services or program from Customer and who have been designated by Customer to receive access to the We Are Here Platform. 

1.15. “Privacy and Security Laws” means all applicable federal, state, and local laws relating to the collection, use, and processing of personal information, medical information under the California Confidentiality of Medical Information Act (Cal. Civ. Code §§ 56 et seq.) (“CMIA”)  or protected health information (“PHI”) under Health Insurance Portability and Accountability Act (“HIPAA”), health information, or other regulated data.  

1.16. “Representatives” means, with respect to a Party, that Party’s and its Affiliates’ employees, officers, directors, consultants, agents, independent contractors, service providers, sublicensees, subcontractors and legal advisors.

1.17. “Service(s)” means collectively the We Are Here Platform, the Implementation Services, the Navigation Services, and the Consultative Services.

1.18. “Third-Party Materials” means materials and information, in any form or medium, including any open-source software, documents, data, content, recipes, wellness suggestions, specifications, or components of or relating to the Services that are not proprietary to Company.

1.19. “We Are Here Platform” means Company’s software as a service patient navigation platform referred to as “We Are Here”.

2. SERVICES AND SUPPORT

 

2.1. Right to Use. Subject to the terms and conditions of this Agreement, including Customer’s payment of all applicable fees hereunder, Company grants to Customer and its Authorized Users a non-exclusive right to access and use the We Are Here Platform during the Term, solely in accordance with the terms of this Agreement, the applicable Order and the Documentation (collectively, the “Right to Use”).

 

2.2. Provision of the Services. Subject to and conditioned on Customer’s and its Authorized Users’ compliance with the terms and conditions of this Agreement, Company shall use commercially reasonable efforts to provide to Customer and the Authorized Users access and use of the Services during the Term.

 

2.3. Company Responsibilities. Company shall (i) ensure that the employees and contractors that provide the Services, including lay navigators (collectively, the “Services Providers”), have the necessary training and qualifications to provide the Services; (ii) provide training to Customer for the access and use of the We Are Here Platform, as mutually agreed by the Parties; (iii) use commercially reasonable efforts to ensure that the We Are Here Platform is available from 7:00 am to 7:00 pm Central Time during Business Days; (iv) generate the recommendations using the We Are Here Platform for Customer’s (or its Healthcare Workers’) use (collectively, the “Reports”) by Company or its Representatives in the performance of the Services; (v) use commercially reasonable efforts to ensure that all Reports comply with good industry practices; and (vi) ensure that all Services Providers comply with all applicable Privacy and Security Laws.

 

2.4. Administrator. Customer shall designate an Administrator who will serve as the single point of contact to manage the relationship with Company. Customer may change the Administrator by sending prior written notice at least five (5) Business Days in advance of the change.

 

2.5. Implementation Services. If Customer has engaged Company to provide any Implementation Services, such Implementation Services shall be provided subject to, and in accordance with the terms of the applicable Order and these Terms. If there is any conflict between the terms of the Order and these Terms regarding the Implementation Services, then the terms of the Order shall prevail.

 

2.6. Lay Navigation Services. If Customer has engaged Company to provide any Navigation Services, such Navigation Services shall be provided subject to, and in accordance with the terms of the applicable Order and these Terms. If there is any conflict between the terms of the Order and these Terms regarding the Navigation Services, then the terms of the Order shall prevail.

 

2.7. Technical Support. Company shall provide technical support via email at [email protected]. Support hours are 8:00 am to 5:00 pm CST during Business Days.

 

2.8. Not Medical Advice or Diagnosis. NOTHING IN THE SERVICES, INCLUDING THE REPORTS, RECOMMENDATIONS, OR REFERRALS SHOULD BE INTERPRETED AS MEDICAL ADVICE OR DIAGNOSIS OR SHOULD BE USED AS A SUBSTITUTE FOR MEDICAL ADVICE OR DIAGNOSIS. CUSTOMER ACKNOWLEDGES AND AGREES THAT COMPANY DOES NOT RENDER MEDICAL ADVICE OR DIAGNOSIS. THE HEALTHCARE WORKERS ARE SOLELY RESPONSIBLE FOR PROVIDING ANY MEDICAL ADVICE OR DIAGNOSIS BASED ON WE ARE HERE AND THE SERVICES, INCLUDING THE REPORTS.

2.9. Third-Party Resources; No Guarantee of Eligibility or Outcomes. The Services may identify, recommend, or provide access to third-party resources, programs, services, organizations, websites, or other Third-Party Materials (collectively, “Third-Party Resources”) for use by Healthcare Workers, Patients, and/or caregivers. Company makes no representation or warranty of any kind, express or implied, with respect to any Third-Party Materials, all of which are provided “AS IS” and “WITH ALL FAULTS.” Without limiting the foregoing, Company makes no representation, warranty, or guarantee that (i) any Healthcare Worker, Patient, or caregiver will be eligible for, accepted by, or approved to participate in any Third-Party Resource; (ii) any Third-Party Resource will be available, accurate, current, or suitable for any particular Patient’s needs or circumstances; or (iii) any Third-Party Resource will produce any particular outcome, result, or benefit for any Patient or caregiver. Customer and its Healthcare Workers are solely responsible for independently evaluating the appropriateness of any Third-Party Resource for a particular patient, and for informing Patients and caregivers that eligibility and outcomes are not guaranteed. To the extent Customer provides resources, links, or content for inclusion in the Services, Customer represents and warrants that such resources are accurate, appropriate, and lawful, and Company shall have no liability for any customer-provided resource. Company shall have no liability of any kind arising from a Healthcare Worker’s, Patient’s or caregiver’s inability to access, qualify for, or benefit from any Third-Party Resource.

 

2.11. Third-Party Website Security. Company uses commercially reasonable efforts to review Third-Party Resources accessible through the Services and to remove or flag websites that Company identifies as insecure or potentially harmful. However, Company does not control and cannot continuously monitor third-party websites, and makes no representation or warranty regarding the security, privacy practices, content accuracy, or reliability of any third-party website. Company shall have no liability of any kind for any loss, damage, or harm — including unauthorized access, data breach, malware, or exposure of personal information — arising from a user’s access to or interaction with any third-party website, regardless of whether that website was identified or recommended through the Services. Customer and its Authorized Users assume all risk associated with accessing third-party websites.

 

2.12 U.S. Patients Only. Customer acknowledges and agrees that all Services are intended for residents of the United States of America only. Customer shall not authorize any patient who Customer knows or reasonably should know to be a resident of any other country or territory to access or use the We Are Here Platform or otherwise use the Services, and Company reserves the right to suspend or terminate any Patient’s access to the We Are Here Platform or the other Services if Company reasonably believes that such Patient is not a resident of the United States of America or is otherwise subject to the Laws of any other jurisdiction, including any Patient who may be subject to the E.U. General Data Protection Regulation (GDRP), the E.U. AI Act, or any other like Law anywhere in the world outside of the United States of America. 

 

3. CUSTOMER ACKNOWLEDGEMENTS AND RESPONSIBILITIES

 

3.1. Customer Responsibilities. Customer shall:

(i)ensure that the Healthcare Workers who access and use the Services possess the professional training, certifications, and qualifications required for their clinical roles, and that they are appropriately authorized by Customer to use the Services in the course of performing those roles;

(ii) ensure that all Healthcare Workers comply with all applicable Privacy and Security Laws;

(iii) provide IT and other support necessary, in accordance with Customer’s capabilities, to facilitate the implementation and use of the We Are Here Platform; 

(iv) make all Authorized Users aware of and bound by the terms of Company’s privacy policy, available at https://wearehere.com/privacy-policy/; and

(iv) require all Authorized Users to be bound by an end user license agreement (“EULA”) in form and substance acceptable to Company governing such Authorized User’s access to or use of the We Are Here Platform, which EULA shall be no less protective to Company than the terms and conditions of this Agreement. Without limiting foregoing, Company’s form EULA is attached hereto as Exhibit A. Company may require execution of such form EULA as a condition to any Authorized User’s access to or use of the We Are Here Platform.

 

3.2. Compliance with Applicable Law. Customer shall, and shall ensure that all Authorized Users, comply with all applicable federal, state, and local Laws related to the Services and the Patient Data, including all Privacy and Security Laws. Company may also impose limits on the use or access to the Services as required by Law.

 

3.3. Use Restrictions. None of Customer or any Authorized User shall:

(i) translate, reverse engineer, de-compile or disassemble the We Are Here Platform or the Services, except to the extent that applicable Law explicitly prohibits this contractual restriction;

(ii) use or permit the use of the Services in violation of any Federal, state or local Law;

(iii) defeat, circumvent or disable any copy protection mechanism or mechanism the Services used to limit use duration or access to excluded functionality or capacity;

(iv) interfere with or disrupt the integrity or performance of the Services, or any data contained therein;

(v) use, access, display and run the Services except in accordance with the terms of this Agreement and the applicable Order;

(vi) except as specifically permitted under the terms of this Agreement, rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the Services to any third party, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud or other technology or service other than Authorized Users as permitted under this Agreement;

(vii) except as specifically provided under the terms of this Agreement, delete or in any manner alter the copyright, trademark, and other proprietary rights notices of Company appearing on the Services or any other Company services or products;

(viii) access or use the Services in any manner or for any purpose that infringes, misappropriates or otherwise violates any Intellectual Property Rights or other rights of any third party, or that violates any applicable Law;

(ix) use the Services for purposes of: (a) benchmarking or competitive analysis of the Services, (b) developing, using or providing a competing application or service, or (c) any other purpose that is to Company’s detriment or commercial disadvantage; or

(x) use the Services in any manner or for any purpose or application not expressly permitted by this Agreement.

4. INTELLECTUAL PROPERTY

 

4.1. Ownership. The We Are Here Platform, the Services, the Documentation and the associated copyrights and other Intellectual Property Rights are protected by Law and international treaties. All rights, title, and interest in and to the We Are Here Platform, the Services, and the Documentation, including all associated Intellectual Property Rights, are and will remain the exclusive property of the Company and, as applicable, the respective owners of any Third-Party Materials. Customer has no right, license, or authorization with respect to the We Are Here Platform, the Services or the Documentation (including Third-Party Materials) except as expressly set forth in Section 2.1, in each case subject to the restrictions in Section 3.3. All other rights in and to the We Are Here Platform, the Services and the Documentation (including Third-Party Materials) are expressly reserved by Company and the respective third-party licensors.

 

4.2. Feedback. Customer hereby grants to Company a non-exclusive, worldwide, fully paid-up, royalty-free, non-terminable, perpetual, irrevocable right and license to use, disclose, modify, reproduce, license, distribute, commercialize, and otherwise freely exploit any feedback, comments, or suggestions with respect to the Services and all related Intellectual Property Rights, that Customer or any Authorized User provides, without restriction of any kind and without any right of accounting.

5. FEES AND PAYMENT TERMS

 

5.1. Fees. Applicable fees and pricing for the right to access and use the We Are Here Platform (“Subscription Fees”), any additional fees for Implementation Services (“Implementation Fees”) and/or Navigation Services (“Navigation Services Fees”) 

and/or Consultative Services (“Consultative Services Fees”), ordered by Customer from time to time are set forth on the Order. Subscription Fees, Implementation Fees, Navigation Services Fees, and Consultative Services Fees are collectively referred to as “Fees.” The Fees for any Renewal Term shall be at Company’s then current standard subscription fees and rates at the time of renewal unless otherwise agreed in writing by the Parties. If Customer has engaged Company to provide any Consultative Services, such Consultative Services shall be provided subject to, and in accordance with the terms of the applicable Order and these Terms. If there is any conflict between the terms of the Order and these Terms regarding the Consultative Services, then the terms of the Order shall prevail. 

 

5.2. Payment Terms. Unless otherwise specified on an Order or herein, all invoices for Fees or Expenses shall be due Net-30 days. All Fees shall be paid by Customer as detailed on the invoice and/or Order. Except to the extent otherwise provided in the Order, required by Law, or agreed to in writing by Company in its sole discretion, all Fees are non-refundable, non-cancelable and non-creditable and are payable in U.S. dollars. Any Fees remaining unpaid past their due date shall accrue interest at a rate of the lesser of one and one-half (1.5%) percent per month or the highest rate allowed by Law, and Customer shall also be responsible for any of Company’s costs of collection of past due Fees, including reasonable legal fees and collection agency fees. Company may also (at its discretion, without notice and in addition to other remedies it may have) suspend any Services and Customer’s and its Authorized Users’ access to the Services if any invoice remains unpaid for more than fifteen (15) days past its due date.

 

5.3. Expenses. Customer shall reimburse Company for all out-of-pocket expenses and costs actually incurred by Company (“Expenses”) in providing the Services as mutually agreed by the Parties.

 

5.4. Taxes. The Fees set forth on the Order do not include local, state, or federal sales, use, value-added, transactional excise or personal property or other similar taxes or duties, and any such taxes shall be assumed and paid by the Customer except those taxes based on the net income of Company. Company shall have no liability for any taxes owed by Customer or its Authorized Users as a result of their use of the Services.

 

5.5. No Deductions or Setoffs. All amounts payable to Company under this Agreement and the applicable Order shall be paid by Customer to Company in full without any setoff, recoupment, counterclaim, deduction, debit or withholding for any reason (other than any deduction or withholding of tax as may be required by applicable Law).

6. WARRANTIES AND DISCLAIMER

 

6.1. Mutual Warranties. Each Party represents and warrants to the other Party that:

(i) it is duly organized, validly existing and in good standing as a corporation or other entity under the Laws of the jurisdiction of its incorporation or other organization;

(ii) it has the full right, power and authority to enter into and perform its obligations and grant the rights, licenses, consents and authorizations it grants or is required to grant under this Agreement;

(iii) the execution of this Agreement by its representative whose signature is set forth on the applicable Order has been duly authorized by all necessary corporate or organizational action of such Party; and

(iv) when executed and delivered by both Parties, this Agreement will constitute the legal, valid and binding obligation of such Party, enforceable against such Party in accordance with its terms.

 

6.2. Additional Company Representation and Warranty. Company represents and warrants to Customer that (i) to its knowledge, the Services do not infringe the U.S. Intellectual Property Rights of any third party, and (ii) it will perform any Navigation Services or Implementation Services in a professional manner consistent with industry standards.

 

6.3. Customer Warranty. Customer warrants that it has all necessary rights to provide Patient Data to Company.

 

6.4. Disclaimer.

EXCEPT AS SET FORTH IN THIS AGREEMENT, THE WE ARE HERE PLATFORM, THE SERVICES, THE DOCUMENTATION AND ANY OTHER PRODUCTS, INFORMATION, MATERIALS AND SERVICES PROVIDED BY COMPANY ARE PROVIDED “AS IS” AND “WITH ALL FAULTS.” EXCEPT AS SET FORTH IN THIS AGREEMENT, COMPANY HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER (INCLUDING ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE), AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, COMPANY EXPRESSLY DISCLAIMS ANY WARRANTY REGARDING THE ELIGIBILITY, QUALITY, ACCURACY, AVAILABILITY, SECURITY, OR FITNESS FOR ANY PURPOSE OF ANY THIRD-PARTY RESOURCES IDENTIFIED OR RECOMMENDED THROUGH THE SERVICES, AS FURTHER DESCRIBED IN SECTIONS 2.10 AND 2.11. WITHOUT LIMITING THE FOREGOING, AND EXCEPT AS SET FORTH IN THIS AGREEMENT, COMPANY MAKES NO WARRANTY OF ANY KIND THAT THE WE ARE HERE PLATFORM, THE SERVICES, OR ANY OTHER PRODUCTS, INFORMATION, MATERIALS AND SERVICES OR THE RESULTS OF THE USE OF ANY OF THEM, WILL MEET CUSTOMER’S, AN AUTHORIZED USER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, OR BE COMPATIBLE OR WORK WITH ANY OTHER SYSTEM, GOODS, MATERIALS OR SERVICES.

7. CONFIDENTIALITY; PATIENT DATA; PRIVACY AND BAA

 

7.1. Definition. “Confidential Information” means any proprietary information, customer information, product plans, inventions, technical data, trade secrets, know-how, or other business information, in each case disclosed by a disclosing Party hereunder. Except as otherwise provided for herein, Company’s Confidential Information includes, without limitation, The Services, and any Company software comprising the same (if applicable).

 

7.2. Exclusions. Notwithstanding Subsection 7.1, nothing received by a receiving Party shall be construed as Confidential Information which:

(i) is now available or becomes available to the public without breach of this Agreement;

(ii) is lawfully obtained from a third party without a duty of confidentiality;

(iii) is known to the receiving Party prior to such disclosure; or

(iv) is, at any time, developed by the receiving Party independent of any such disclosure(s).

 

7.3. Non-Use and Non-Disclosure. The receiving Party shall not disclose the disclosing Party’s Confidential Information to any third party (other than as set forth herein) and may only use the disclosing Party’s Confidential Information for the intended business purpose related to this Agreement and for the benefit of the disclosing Party, or as otherwise expressly set forth herein. Both Parties shall protect Confidential Information from disclosure or misuse by using the same degree of care as for their own confidential information of like importance, but shall at least use reasonable care. It is understood that said Confidential Information shall remain the sole property of the disclosing Party unless otherwise expressly set forth herein. A receiving Party shall not disclose the disclosing Party’s Confidential Information to its Representatives unless such Representatives:

(i) need to know such Confidential Information for purposes of the receiving Party’s exercise of its rights or performance of its obligations under and in accordance with this Agreement;

(ii) have been informed of the confidential nature of the Confidential Information and the receiving Party’s obligations under this Section 7; and

(iii) are bound by written confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section 7.

 

7.4. Disclosure Required by Law. Notwithstanding Subsection 7.3 above, a receiving Party may disclose the other Party’s Confidential Information if the information is required by Law to be disclosed in response to a valid order of a court of competent jurisdiction or authorized government agency, provided that the receiving Party must give the disclosing Party prompt written notice and obtain and allow for a reasonable effort by the disclosing Party to obtain a protective order prior to disclosure.

 

7.5. Patient Data. Each Party will employ security measures to protect any information and data, including all any PHI that is collected, downloaded or otherwise received, directly or indirectly from a Patient in connection with the use of the We Are Here Platform or the Services (collectively, the “Patient Data”) in accordance with commercially reasonable standards and all applicable Laws. To the maximum extent permitted by applicable Laws, Company shall have the right:

(i) to use the Patient Data

 (a) to provide the Services to Customer and Authorized Users; and

 (b) to develop, train (including the building of algorithms or for the purposes of machine learning or otherwise) and improve Company’s products and services and its business, and

(ii) to use aggregated and anonymized Patient Data (“Aggregated Data”): Patient Data is not “anonymized” for purposes of this definition unless it has been de-identified using the same standard applicable to De-Identified Data below, and Company will not use or disclose Aggregated Data unless it reflects a sufficient number of underlying data points that no individual Patient’s information can reasonably be identified from it.

 (a) to create new services and technologies,

 (b) to generate and disclose statistics and other data regarding the Services, and

 (c) build or train algorithms for the purposes of machine learning or otherwise;

Notwithstanding Section 7.5(i)(b), to the extent any Patient Data constitutes Protected Health Information as defined in the Business Associate Agreement between the parties (the “BAA”), Company’s rights to develop, train, and improve its products and services using such Patient Data are subject to, and limited by, the BAA, including Section 4.5 (Deidentified Data), Section 4.6 (Pseudonymized Patient Data), and Section 4.7 (Resource Status Data) thereof.

provided, that no Patient Data that is identifiable to Customer or any individual user, including any Patient, will be disclosed to third parties without Customer’s consent or in violation of any applicable Law or regulation. Aggregated Data may be aggregated with data from Company’s other customers and will be anonymized so that such data will not be identifiable to Customer or any individual user. If Company generates Aggregated Data, Customer agrees that Company may use such Aggregated Data, during and after the Term, for any lawful business purpose without restriction. In no event will the Aggregated Data disclose any substantive specific individual information of Customer or a Patient, including the performance of any institution, or any individual Authorized User.

(iii) For clarity, any Patient Data or other information that has been de-identified in accordance with the HIPAA Privacy Rule (45 C.F.R. § 164.514(a)–(b)) (“De-Identified Data”) shall not be considered Patient Data or Confidential Information. De-Identified Data is licensed to Company on a perpetual, irrevocable, worldwide, royalty-free basis, and, to the maximum extent permitted by applicable Law, Company may retain, use, analyze, combine, and disclose such De-Identified Data during and after the Term for any lawful business purpose, including analytics, research, benchmarking, publication, algorithm development, and product or service improvement, provided that no such use identifies or can reasonably be used to identify Customer, any institution, or any individual. Nothing in this Section constitutes a transfer of ownership of Patient Data or De-Identified Data to Company.

 

7.6. Privacy and BAA. Each Party shall comply with all Privacy and Security Laws. 

 

At the time of the first Order, Company and Customer (or the applicable Customer Location) shall enter into a Business Associate Agreement (a “BAA”), in form and substance reasonably acceptable to the Parties and shall thereafter comply with the terms of such BAA.

 

For clarity, the Parties acknowledge and agree that the that all Services are intended for residents of the United States of America only, and Company does not provide any representations or warranties to Customer that Company’s use or disclosure of any Patient Data, Aggregated Data, or other records or information will comply with Laws other than the state and federal Laws of the United States of America. 

 

7.7 Security Breach Notification and Remediation. During the Term, if Company becomes aware of any unauthorized access to or acquisition of systems, software, or platforms under its control that contain or have access to any Patient Data (a “Security Breach”), Company shall: 

(i) promptly, and in no event later than thirty (30) calendar days after discovery, notify Customer in writing of such Security Breach.

(ii) Company shall reasonably cooperate with Customer to facilitate fulfillment of any legal or regulatory obligations arising from the Security Breach, and shall promptly provide Customer with relevant information and properly redacted findings related to the Security Breach.

(iii) To the extent the Security Breach results from Company’s willful misconduct, Company shall bear all reasonable and documented costs incurred by Customer in connection with:
 (a) any required forensic investigation;
 (b) notifications to government agencies, industry self-regulatory bodies, the media (if required), and affected individuals;
 (c) credit-monitoring services for affected individuals for no less than twelve (12) months; and
 (d) call-center operations established to assist affected individuals.

8. LIMITATION OF LIABILITY

 

8.1. DISCLAIMER OF DAMAGES.

NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, COMPANY WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO CUSTOMER FOR LOST PROFITS OR LOSS OF BUSINESS NOR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THE SUBJECT MATTER OF THIS AGREEMENT, EVEN IF COMPANY IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.

 

WITHOUT LIMITING THE FOREGOING, UNDER NO CIRCUMSTANCES WILL COMPANY BE LIABLE FOR ANY LOSS OR CORRUPTION OF DATA OR OTHER INFORMATION OR CONTENT STORED IN, OR IN CONNECTION WITH, THE SERVICES NOR FOR ANY DAMAGES ARISING FROM ANY ERROR IN ANY DATA OR OTHER INFORMATION OR CONTENT PROVIDED BY OR THROUGH THE OPERATION OF ANY SERVICE.

 

8.2. MAXIMUM LIABILITY.

EXCEPT AS SET FORTH IN SECTION 8.3, UNDER NO CIRCUMSTANCES WILL COMPANY’S TOTAL LIABILITY OF ALL KINDS FOR ANY AND ALL CLAIMS ARISING OUT OF OR RELATED TO THE SUBJECT MATTER OF THIS AGREEMENT, REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER UNDER THE ORDER WITH RESPECT TO WHICH THE LIABILITY AROSE DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE APPLICABLE CLAIM (DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN AN ACTION AND SUCH AMOUNT BEING INTENDED AS A CUMULATIVE AGGREGATE CAP AND NOT PER INCIDENT). 

 

8.3. EXCLUSIONS FROM LIMITATIONS.

The limitations in this Section 8 shall not apply to:
(i) Company’s indemnification obligations under Section 9;
(ii) Company’s breach of its confidentiality obligations, but only to the extent of direct damages, reasonable mitigation costs, and expenses (including notification and remediation costs) actually incurred as a result of such breach;
(iii) any Security Breach resulting from Company’s negligence or willful misconduct; or
(iv) Company’s gross negligence, fraud, or willful misconduct.

 

8.4 FAILURE OF ESSENTIAL PURPOSE.

THE LIMITATIONS IN THIS SECTION 8 WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.

9. INDEMNIFICATION

 

9.1. By Company. Company shall hold harmless, defend and indemnify Customer and its affiliates and their respective officers, directors, employees and agents from and against direct Losses, brought by or resulting from claims by third parties which are based on or arising out of any actual or alleged infringement of any third party’s US Intellectual Property Rights as a result of using the Services in accordance with this Agreement  (an “Infringement Claim”); provided that Company shall not be obligated to indemnify Customer to the extent that any Infringement Claim arises out of or results from:

(i) any combination of the Services with any hardware, system or other software not provided or authorized in writing by Company, if such infringement would not have occurred but for such combination;

(ii) any modification of the Services not provided or authorized in writing by Company, or Customer’s negligence, abuse, misapplication, or misuse of the Services, if such infringement would not have occurred but for such modification;

(iii) use of the Services after Company’s notice to Customer of such activity’s alleged or actual infringement, misappropriation or other violation of a third party’s rights;

(iv) negligence, abuse, misapplication or misuse of use of the Services or Documentation by or on behalf of Customer or a third party;

(v) use of the Services by or on behalf of Customer that is outside the purpose, scope or manner of use authorized by this Agreement or in any manner contrary to Company’s instructions; or

(vi) any breach by Customer or its Authorized Users of the terms and conditions of this Agreement.

 

9.2. Rights Upon Infringement.

If an Infringement Claim is made by a third party against Customer or if Company believes that a likelihood of such an Infringement Claim exists, then Company, in a reasonable exercise of its discretion, shall use commercially reasonable efforts to either procure for Customer the right to continue using the affected part of the Services, modify the affected part of the Services to make it non-infringing while still able to meet the Services’ functionality, or replace it with a non-infringing software application or services of like functionality. If none of the foregoing is reasonably available to Company, as determined by Company in its sole discretion, Company may terminate this Agreement and/or the Right to Use granted herein, in which case Customer shall immediately cease use of the Services in accordance with Section 10.3 and Company shall refund to Customer a pro-rata portion of any pre-paid Subscription Fees for the remainder of the then current Term.  

 

9.3. By Customer.

Customer shall hold harmless, defend and indemnify Company and its affiliates and their respective officers, directors, employees and agents from and against direct Losses brought by or resulting from claims by third parties which are based on or arising out of any actual or alleged:

(i) negligence or willful misconduct of, or breach of this Agreement by, Customer or any of its Representatives or Authorized Users,

(ii) violation of any applicable Law by Customer or any of its Representatives or Authorized Users,

(iii) any breach of any Patient Data to the extent not caused by Company’s negligence or willful misconduct or

(iv) the use of the We Are Here Platform or any other Services in violation of this Agreement.

 

9.4. Indemnification Procedures.

Each Party shall promptly notify the other Party in writing of any claim for which such Party believes it is entitled to be indemnified pursuant to Section 9.1 or Section 9.3. The Party seeking indemnification (the “Indemnified Party”) shall cooperate with the other Party (the “Indemnifying Party”) at the Indemnifying Party’s sole cost and expense. The Indemnifying Party shall immediately take control of the defense and investigation of such claim and shall employ counsel reasonably acceptable to the Indemnified Party to handle and defend the same, at the Indemnifying Party’s sole cost and expense. The Indemnified Party’s failure to perform any obligations under this Section 9.4 will not relieve the Indemnifying Party of its obligations under this Section 9 except to the extent that the Indemnifying Party can demonstrate that it has been materially prejudiced as a result of such failure. The Indemnified Party may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.

 

9.5. Sole Remedy.

The provisions of this Section sets forth Company’s sole and exclusive obligations, and Customer's sole and exclusive remedies, with respect to infringement, misappropriation, or other violation of any proprietary or Intellectual Property Rights of any kind.

10. TERM AND TERMINATION

 

10.1. Term.

This Agreement shall become effective on the date the first Order hereunder has been executed by both Parties and shall continue for the initial subscription term set forth in such Order (the “Initial Subscription Term”), unless terminated earlier pursuant to this Section 10. Upon expiration of the Initial Subscription Term or any Renewal Term, as applicable, this Agreement shall automatically renew for an additional annual term (each a “Renewal Term”) unless a Party notifies the other Party at least sixty (60) days prior to the end of the then current term of termination (such Renewal Terms together with the Initial Subscription Term, the “Term”).

 

10.2. Termination.

This Agreement and the Right to Use may be terminated upon the occurrence of any of the following:

(i) by Company, upon thirty (30) days written notice to Customer; or

(ii) by a Party, effective on written notice to the other Party, if such other Party breaches any obligation or term under this Agreement and such breach:

 (a) is incapable of cure; or

 (b) being capable of cure, remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach; or

(iii) by a Party, effective immediately, if the other Party:

 (a) is dissolved or liquidated or takes any corporate action for such purpose;

 (b) becomes insolvent or is generally unable to pay its debts as they become due;

 (c) becomes the subject of any voluntary or involuntary bankruptcy proceeding under any domestic or foreign bankruptcy or insolvency Law;

 (d) makes or seeks to make a general assignment for the benefit of its creditors; or

 (e) applies for, or consents to, the appointment of a trustee, receiver or custodian for a substantial part of its property.

 

10.3. Effect of Expiration or Termination.

On the expiration or termination of this Agreement for any reason:

(i) all rights and authorizations granted to Customer and its Authorized Users hereunder, including the Right to Use will immediately terminate and Customer shall:

 (a) immediately cease all use of and other activities with respect to We Are Here, the Services and Documentation;

 (b) within fifteen (15) days, deliver to Company, or at Company’s written request securely destroy, and permanently erase from all devices and systems Customer directly or indirectly controls, the Documentation and Company’s Confidential Information, including all documents, files and tangible materials (and any partial and complete copies) containing, reflecting, incorporating or based on any of the foregoing, whether or not modified or merged into other materials; and

 (c) certify to Company in a written instrument signed by an executive officer that it has complied with the requirements of this Section 10.3(i);

(ii) Customer shall pay all amounts of any kind due to Company under this Agreement and the applicable Order no later than ten (10) days after the effective date of the expiration or termination of this Agreement; and

(iii) Company shall within fifteen (15) days, deliver to Customer, or at Customer’s written request destroy, and permanently erase from all devices and systems Company directly or indirectly controls, Customer’s Confidential Information and any identifiable Patient Data, including all documents, files and tangible materials (and any partial and complete copies) containing, reflecting, incorporating or based on Customer’s Confidential Information, except that Company may retain and continue to use De-Identified Data in accordance with Section 7.5(iii) and subsection (iv) below. Any retained data will remain subject to the confidentiality and security obligations of this Agreement until it has been properly de-identified or destroyed.

(iv) Patient and Caregiver Access. Upon expiration or termination of this Agreement, all Patient and caregiver accounts associated with Customer shall be deactivated, and such individuals shall immediately lose access to the We Are Here Platform and Services through Customer’s account or subscription. Company shall, within thirty (30) days of termination, ensure that all such accounts are rendered inactive and that no further logins, communications, or data submissions can occur under Customer’s configuration. To the extent required by applicable law, Company may provide Patients a limited window to download or request a copy of their personal information or to transfer such information to another provider, as directed by Customer. Notwithstanding the foregoing, Company may retain and continue to use any De-Identified Data derived from such accounts in accordance with this Agreement.

 

10.4. Survival.

In addition to those Sections of this Agreement which by their nature are intended to survive any expiration or termination of this Agreement, Sections 1, 3, 4.2, 5 (with respect to amounts accrued or payable prior to termination), 6.4, 7-9, 10.3, 10.4 and 11 shall survive any expiration or termination of this Agreement. All other rights and obligations shall cease and be of no further force or effect.

 

11. GENERAL

 

11.1. Entire Agreement.

This Agreement, including the Order(s) and any schedules and/or attachments referenced herein or issued hereunder constitute the entire agreement of the Parties with respect to the subject matter contemplated herein, and supersede any prior representations, agreements, negotiations, or understandings between them, whether written or oral, with respect to the subject matter hereof, provided that with respect to Confidential Information disclosed thereunder this Agreement shall not affect any surviving provision of any NDA or other agreement by and between the Parties.

 

11.2. Amendment.

From time to time, Company may modify the Terms or any portion thereof. Customer shall review the Terms regularly. Company shall post modifications to the Terms to its website. Modifications will not apply retroactively and will become effective upon the next Renewal Term.

 

11.3. Governing Law and Jurisdiction.

The Agreement will be governed by and construed in accordance with the Laws of the State of Texas. 

 

11.4. Arbitration.

Any dispute, controversy or claim arising out of this Agreement will be settled by binding arbitration pursuant to the Commercial Rules (or Consumer Rules, to the extent applicable) of the American Arbitration Association (“Rules”) then in effect. Notwithstanding those Rules, the following provisions will apply to such arbitration:

(i) Texas Law shall apply,

(ii) the arbitration will be conducted by a single arbitrator; however, at the request of either Party, a panel of three arbitrators will conduct the arbitration, with one arbitrator chosen by each of the Parties and the third appointed by the other two arbitrators,

(iii) the fees of the arbitrator(s) shall be equally borne (50/50) by the Parties, and

(iv) the proceedings shall be in the English language and shall take place in Texas, or another location reasonably convenient to both Parties.

 

The arbitrator(s) shall reach a binding decision regarding the issues presented as it deems fair, reasonable, and appropriate, and such decision shall have the full force and effect of a binding judgment, which may be entered in any court having proper jurisdiction. Notwithstanding this provision, each Party may seek injunctive relief in any court of competent jurisdiction.

The Parties agree to resolve any dispute in arbitration on an individual basis only, and not on a class or collective basis. The arbitrator shall have no authority to consider or resolve any claim or issue or issue any relief on any basis other than an individual basis. If at any point this provision is determined to be unenforceable, the Parties agree that this provision shall not be severable, unless it is determined that the arbitration may still proceed on an individual basis only.

 

11.5. Relationship of Parties.

The Parties are independent contractors and the Agreement will not establish any relationship of partnership, joint venture, employment, franchise, or agency between the Parties. Neither Party will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent. Company reserves the right to utilize subcontractors.

 

11.6. Attorneys’ Fees.

In any court action at law or equity which is brought by one of the Parties to enforce or interpret the provisions of this Agreement, the prevailing Party will be entitled to reasonable attorneys’ fees, in addition to any other relief to which that Party may be entitled.

 

11.7. Equitable Relief.

The Parties agree that a material breach by either Party of its confidentiality obligations or the use or access restrictions set forth in this Agreement would cause the non-breaching Party irreparable harm for which monetary damages alone would be an inadequate remedy. Accordingly, the non-breaching Party shall be entitled to seek equitable relief, including temporary or permanent injunctive relief or specific performance, in addition to any other remedies available at law or in equity, without the requirement of posting bond or proving actual damages

 

11.8. Force Majeure.

Company shall not be deemed to have breached any provision of the Agreement or be liable in any way for any delay, failure in performance, loss, damage or interruption of service resulting directly or indirectly from acts of God, network failures, acts of civil or military authorities, civil disturbances, wars, terrorism, energy crises, fires, transportation contingencies, interruption or failures of communication systems or Internet equipment or service, other catastrophes, equipment failure, acts or omissions of third-party application or service providers or any other occurrences which are beyond Company’s control.

 

11.9. Government Use.

The use, duplication, reproduction, release, modification, disclosure, or transfer (“Use”) of the Services, no matter how received by the United States Government, is restricted in accordance with the terms and conditions contained herein. All other Use is prohibited. Further, the Services were developed at Company’s private expense and are commercial in nature. By using or receiving the Services, any Government user agrees to the terms and conditions contained in this Agreement including the terms and conditions contained in this paragraph.

 

11.10. Assignment.

Neither Party may assign this Agreement, in whole or in part, without the other Party’s prior written consent, which consent shall not be unreasonably withheld or delayed, provided that no consent is required in connection with (a) any Company merger, reorganization, consolidation, amalgamation, sale of assets or similar transaction, or (b) an assignment by either Party to a wholly-owned subsidiary, affiliate, or successor entity of such Party. Any purported assignment in violation of this Section shall be null and void. The Agreement shall be binding on all permitted successors and assigns.

 

11.11. Severability.

The invalidity or unenforceability of any provision hereof, or any terms thereof, shall not affect the validity of the Agreement as a whole, which will at all times remain in full force and effect.

 

11.12. Waiver.

The failure of either Party to enforce at any time the provisions of the Agreement, or the failure to require at any time performance by the other Party of any of the provisions of the Agreement, shall in no way be construed to be a present or future waiver of such provisions, nor in any way affect the ability of either Party to enforce each and every such provision thereafter. The express waiver by either Party of any provision, condition or requirement of the Agreement shall not constitute a waiver of any future obligation to comply with such provision, condition or requirement.

 

11.13. Notices.

All notices required or permitted under the Agreement will be in writing and delivered by hand (with written confirmation of receipt), by courier or overnight delivery service, or by certified mail, and in each instance will be deemed given upon receipt. All communications will be sent to the addresses set forth in this Section or in the Order or to such other address as may be specified by either Party to the other in accordance with this Section. Notices to Company should be sent to We Are Here, Inc., 4810 Spicewood Springs Rd., Ste 207, Austin, TX 78759, Attn: Director of Operations.

 

11.14. Further Assurances.

Upon a Party’s reasonable request, the other Party shall, at the requesting Party’s sole cost and expense, execute and deliver all such documents and instruments, and take all such further actions, necessary to give full effect to this Agreement.

 

11.15. Public Announcements.

Customer agrees that Company may include Customer’s name and logo in its lists of current or former customers, without restriction in promotional and marketing materials. Upon request, Customer will consider in good faith providing testimonials, participating in case studies, and/or participating in video interviews as mutually agreed by the Parties.

 

11.16. Solicitation.

During the Term and for one (1) year following thereafter, neither Party shall, directly or indirectly, offer, or assist any other person to offer, employment to any then current employee or contractor of the other Party or attempt, directly or indirectly, to persuade any such employee or contractor to terminate his or her employment with the other Party.

 

11.17. No Third-party Beneficiaries.

This Agreement is for the sole benefit of the Parties hereto and their respective permitted successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Party any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.

 

11.18. Counterparts.

An Order may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of an Order delivered by e-mail or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of an Order.

EXHIBIT A: EULA 

The current form of EULA that Company requires each Authorized User to accept directly, as a condition of accessing the Platform, is available at https://wearehere.com/EULA/;  as may be updated from time to time in accordance with the terms of the EULA and the BAA’s provision addressing notice of material changes to the EULA or Company’s privacy policy, where applicable. Customer’s execution of this Agreement does not itself constitute execution of the EULA by, or on behalf of, any Authorized User.