AGR-7427 - WELLABLE LLC - CUSTOMER AGREEMENT - WELLNESS PLATFORM PROVIDING WELLABLE SERVICESST
AG R-7427
CUSTOMER AGREEMENT
THIS CUSTOMER AGREEMENT (the "Agreement') is entered into as of October 31 , 2022
(the "Effective Date") by and between Wellable, LLC, with principal offices located at 38 Chauncy St, l 1'
Floor, Boston, MA 02111 ("Wellable'), and City of Orange, with principal offices located at 300 E.
Chapman Ave, Orange, CA 92866 ("Customer" ). Wellable and Customer are referred to individually as a
" Rqq ' and together as the "Parties."
WHEREAS, Wellable has developed certain proprietary technology (the "Wellable Technology"),
including software programs that enable Wellable to capture certain information from third -party software
applications ("Third -Party A ads');
WHEREAS, employees or members, as applicable, of Customer (the "Members") have agreed and,
to the extent hired by Customer after the date hereof, will agree, to permit Wellable to capture certain
information in connection with their use of Third -Party Apps and provide such information to Customer
(the "Member Data");
WHEREAS, Customer desires to obtain, and Wellable desires to provide Customer, the Member
Data, on the terms and conditions set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the Parties agree as follows:
1. Wellable Obligations.
1.1. License from Wellable. Wellable hereby grants to Customer a non-exclusive, non-
sublicensable, non -transferable right and license during the Term (as defined on Schedule A) to
access and use the Wellable Technology for the purposes set forth on Schedule A.
1.2. Wellable Solutions. During the Term, Wellable will provide the Wellable Solutions (as defined
on Schedule A) to Customer. Wellable shall have no responsibility to any party (including
Customer) for the accuracy, quality, integrity, legality, reliability, appropriateness, and
intellectual property ownership or right to use of all Member Data and Wellable shall not be
responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any
Member Data. Wellable makes no guarantees as to the continuous availability of the Wellable
Technology or of any specific feature(s) of the Wellable Technology. The Wellable Technology
may be subject to limitations, delays, and other problems inherent in the use of the internet and
electronic communications. Wellable is not responsible for any delays, delivery failures, or
other damage resulting from such problems. In the event this Agreement is terminated or
expires, Customer agrees and acknowledges that Wellable has no obligation to retain the
Member Data and may delete such Member Data as of the date of such termination or expiration.
Wellable reserves the right to withhold, remove, and/or discard Member Data, without notice,
for any breach, including, without limitation, Customer's non-payment.
2. Customer Obligations.
2.1. Payment for License and Wellable Services. In consideration for the License to the Wellable
Technology and Wellable's provision of the Wellable Services, Customer shall make payment
of the Implementation Fee and the Subscription Fee in the amounts and at the time(s) set forth
on Schedule A. Invoices will be sent electronically to the following designated email address:
_ shaedtlerC@citvoforancje.org
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2.2. Use of License from Wellable. Customer is responsible for all activity occurring under
Customer's license of the Wellable Technology and shall abide by all applicable local, state,
national and foreign laws, treaties and regulations in connection with Customer's use of the
Wellable Technology, including those related to data privacy, international communications and
the transmission of technical or personal data. Customer shall notify Wellable immediately of
any unauthorized use of any password or account or any other known or suspected breach of
security and report to Wellable immediately and use reasonable efforts to stop immediately, any
copying or impermissible distribution of the Wellable Technology or Member Data that is
known or suspected by Customer.
2.3. Licenses to Wellable. To the extent necessary or useful, Customer hereby grants to Wellable a
non-exclusive, non-sublicensable, non -transferable right and license during the Term to access,
collect, and host the Member Data in connection with Wellable's performance of the Wellable
Services.
2.4. Customer Services. During the Term, Customer will provide the Customer Services (as defined
on Schedule A) to Wellable.
2.5. Customer Use of Member Data. Customer shall be responsible for the actions of its employees
and representatives with respect to the use and/or misuse of the Wellable Technology or Member
Data and will take customary and reasonable steps, which shall in no event be less than
customary industry standard safeguards, to protect the Wellable Technology and Member Data
from misuse.
3. Confidential Information. Each Party's Confidential Information (as defined below) made available to
the other Party pursuant to this Agreement shall remain exclusively its own. Neither Party shall (a)
license, sublicense, sell, resell, transfer, assign, distribute, or otherwise commercially exploit or make
available to any third party, (b) modify or make derivative works based upon, or (c) reverse engineer
or access the Confidential Information of the other Party, in each case other than as expressly permitted
by this Agreement. Customer acknowledges that Wellable has not, by this Agreement or otherwise,
prior to the date of this Agreement, transferred any property rights in or to the Wellable Confidential
Information and Customer covenants and agrees not to take any action that would adversely affect in
any manner Wellable's exclusive ownership of the Wellable Confidential Information. For purposes
of this Agreement, "Confidential Information" means the terms of this Agreement and all other non-
public information and know-how of the other Party disclosed to or acquired by the receiving Party
pursuant to or in connection with this Agreement that is either designated as proprietary and/or
confidential or by the nature of the circumstances surrounding disclosure, ought in good faith to be
treated as proprietary and/or confidential and, with respect to Wellable, includes the Wellable
Technology.
4. Representations and Warranties.
4.1. Warranty of Authority. Each Party represents and warrants to the other that (a) such Party is
duly organized and validly existing under the laws of the state/country of its incorporation or
organization, and has full corporate power and authority to enter into this Agreement and to
carry out the provisions hereof, (b) this Agreement is a legal and valid obligation binding on
such Party; and (c) the execution, delivery, and performance of this Agreement by each Party
does not conflict with any agreement, instrument, or understanding, oral or written, to which it
is a Party or by which it may be bound, and it does not violate any law or regulation of any court,
governmental body, administrative agency, or other agency having jurisdiction over it.
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4.2. Wellable's Representations and Warranties. Wellable represents and warrants that its
obligations under this Agreement will be provided without violating or infringing upon any
patent, copyright, trade secret, or other property or contract right of any other person or entity
and in compliance with applicable laws, ordinances, rules and regulations (in each case other
than with respect to the collection of Member Data as contemplated by Section 4.3} and
Wellable will, in accordance with the terms of this Agreement, indemnify Customer for all direct
losses actually incurred thereby as a result of inaccuracies in Wellable's statement in this Section
4.2.
4.3. Customer's Representations and Warranties. Customer represents and warrants that its
obligations under this Agreement and the collection and provision of Member Data by Wellable
as contemplated by this Agreement will not violate (a) any agreement between any third party
and Customer, including the Members; (b) applicable law; or (c) any intellectual property rights
of any other person or entity and Customer will, in accordance with the terms of this Agreement,
indemnify Wellable for all direct losses actually incurred thereby as a result of inaccuracies in
Customer's statement in this Section 4.3.
DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, WELLABLE
MAKES NO REPRESENTATIONS, GUARANTEES, OR WARRANTIES OF ANY KIND,
EXPRESS OR IMPLIED, WHETHER ARISING BY LAW, CUSTOM, ORAL OR WRITTEN
STATEMENTS OF WELLABLE, ITS AGENTS OR EMPLOYEES OR OTHERWISE, AND
SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE AND NON -INFRINGEMENT OF THIRD PARTY
RIGHTS, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. WITHOUT
LIMITING THE FOREGOING, WELLABLE EXPRESSLY DISCLAIMS ANY WARRANTY OR
LIABILITY WITH RESPECT TO DESIGN, LATENT DEFECTS, RELIABILITY OR ACCURACY
OF THE MEMBER DATA.
6. LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY
PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES IN ANY ACTION ARISING
FROM OR RELATED TO THIS AGREEMENT, WHETHER BASED IN CONTRACT, TORT
(INCLUDING NEGLIGENCE), INTENDED CONDUCT OR OTHERWISE, INCLUDING
WITHOUT LIMITATION, DAMAGES RELATING TO THE LOSS OF PROFITS, INCOME OR
GOODWILL, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR INDEMNITY OR CONFIDENTIALITY
OBLIGATIONS ARISING UNDER THIS AGREEMENT, IN NO EVENT WILL EITHER PARTY'S
LIABILITY FOR MONETARY DAMAGES UNDER THIS AGREEMENT EXCEED THE TOTAL
AMOUNT PAYABLE UNDER THIS AGREEMENT IN THE TWELVE MONTHS PRIOR TO THE
DATE SUCH ALLEGED CLAIM AROSE.
7. Survival. Section 3, the indemnification provisions of Section 4, and Section 5-8 shall survive the
termination of this Agreement, along with any payment obligations that have accrued as of the date of
such termination.
8. General. This Agreement contains the entire agreement between the Parties and supersedes and
replaces any and all prior or contemporaneous agreements or understandings (whether written or oral)
concerning the subject matter hereof. No term or condition of this Agreement may be amended or
waived except by a writing signed by both Parties. This Agreement shall be construed in accordance
with and governed by the laws of the Commonwealth of Massachusetts, without regard to principles of
conflicts of law. The Parties hereby consent to the exclusive jurisdiction of the state and federal courts
located in Boston, Massachusetts. Neither Party shall have the right to assign or sublicense (except as
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otherwise set forth in this Agreement) the rights or obligations set forth in this Agreement without the
other Parry's prior written consent. This Agreement shall be fully binding upon, inure to the benefit of
and be enforceable by the parties hereto and their respective successors and assigns. This Agreement
shall not be construed to create a joint venture, partnership or the relationship of principal and agent
between the Parties. This Agreement may be executed in multiple counterparts, each of which shall be
deemed to be an original, but all of which together shall constitute one and the same instrument. Any
notice, approval, request, authorization, direction or other communication under this Agreement shall
be given in writing and shall be deemed to have been delivered and given for all purposes: (a) on the
delivery date if delivered personally; (b) one business day after deposit with a commercial overnight
carrier, with written verification of receipt, or (c) five business days after the mailing date, whether or
not actually received, if sent by U.S. certified mail, return receipt requested, postage prepaid, or any
other means of rapid mail delivery for which a receipt is available, to the address of the Party to whom
the same is directed as first set forth above. If any provision of this Agreement is determined by a court
or other authority having competent jurisdiction to be void, illegal or otherwise unenforceable, that
provision shall be enforced to the maximum extent allowed so as to effect the intent of the Parties and
all other provisions of this Agreement shall remain in full force and effect and shall not thereby be
affected or impaired. Failure by either Party to enforce any provision of this Agreement will not be
deemed a waiver of future enforcement of that or any other provision. Any waiver, amendment or other
modification of any provision of this Agreement will be effective only if in writing and signed by the
parties. Neither Party may issue any such public announcement regarding the subject matter of this
Agreement without the other Parry's prior written consent, which consent shall not be unreasonably
withheld.
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IN WITNESS WHEREOF, the undersigned have caused their duly authorized representatives to
execute this Agreement as of the Effective Date.
WELLABLE, LLC
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By • Ke` a8tlb-aeye
Name. Geoff Geredien
Title:
Chief Growth Officer
City of Orange
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By. (-0 a&I5
N,inie: Susan Gaivan
Title:
Assistant City Manager
APPROVED AS TO FORM:
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Nathalie Adourian
Senior Assistant City Attorney
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SCHEDULE A
Term:
Two (2) years from November 1, 2022 (the "Initial Term');
provided, however, the Initial Term shall automatically extend for
additional two-year periods (each, a "Subsetluent Term" and with
the Initial Term, the "Term') unless written notice of termination
is provided by one Party to the other not later than 60 days prior
to the expiration of any then -current Term.
Wellable Solutions:
® Wellness Platform
® Health Content
® On -Demand
El Wellness Services
El Lifestyle Spending Account
Support Level
❑ Full -Service
M Self -Directed
Implementation Fee:
Waived
Subscription Fee:
• Wellness Platform: $1.50 per user account per month
• Health Content: $0.35 per user account per month
• On -Demand: $0.75 per user account per month
• Minimum of 200 user accounts
• Invoices sent the first of every month and due upon receipt
Customer Services:
Promptly provide Wellable information as necessary to enable
Wellable to add and remove Members, send communications, and
effectively provide Wellable Services.
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