health.network Startup Terms of Service

This Startup Terms of Service (this “Agreement”) is made between b.well Connected Health, Inc., a Delaware corporation (“b.well,” “we,” “us”), and any entity (“Customer,” “you”) that attests to meeting b.well’s Startup eligibility criteria and executes the applicable Order Form. b.well and Customer may each be referred to as a “Party” and collectively as the “Parties.”

This Agreement consists of: (a) the applicable Order Form; (b) these General Terms; (c) the b.well Acceptable Use Policy (AUP), published at icanbwell.com/legal/health-network-startup-acceptable-use-policy/; and (d) the Data Processing Addendum (DPA), published at icanbwell.com/legal/health-network-startup-data-processing-addendum/. Where b.well is required to serve as Customer’s business associate, and as specified in the Order Form, b.well will provide a Business Associate Addendum (BAA) to incorporate into the Agreement instead of a DPA. Together, these documents constitute the complete agreement between the Parties and supersede all prior agreements relating to the same subject matter.

By executing the Order Form or accessing any b.well Product or Service, you agree to be bound by this Agreement. If you do not agree, do not sign the Order Form or access the Products or Services.

b.well may update this Agreement from time to time. Updates are effective upon posting at icanbwell.com/health-network-startup-terms-of-service. Your continued use of the Products and Services constitutes acceptance. If any revision materially and adversely affects your use, you may terminate upon thirty (30) days’ written notice to b.well. After termination, you will have no right to use the Products or Services.

b.well grants you a personal, non-exclusive, non-transferable, non-sublicensable, limited, and revocable license to access and use the b.well Platform and Products identified in the applicable Order Form solely in accordance with this Agreement and b.well’s Documentation. This license commences on the earlier of your execution of the Order Form or your access to any b.well Product or Service that references this Agreement (as applicable, the “Effective Date”), and remains in force until terminated or expired in accordance with this Agreement.

You may not:

• sublicense, resell, or allow any third party (other than your Consumer End Users as part of normal product operation) to access or use the Products or Services;
• use the Products or Services to develop or market a health data intermediary, record locator or network connectivity service, whether or not as part of a Customer-developed or Customer-marketed consumer-facing health application, that competes with the Products or Services purchased under this Agreement;
• modify, reverse engineer, decompile, or derive source code from any Company Software;
• use b.well’s Marks except as expressly permitted herein; 
• use the Products or Services in a manner that interferes with the use of Company Software or Services by Company or its other customers; or
• claim any ownership of or license to the Products, Services, Company Software or b.well’s Marks.

A violation of this Section is a material breach, and b.well may immediately suspend or terminate your access in addition to all other available remedies.

b.well represents and warrants to Customer that: (a) it has the full power, capacity and authority to enter into and perform this Agreement; (b) it owns all right, title and interest in and to and/or has the right to license access to the Products and Services purchased under this Agreement and such Products and Services do not infringe upon or violate the Intellectual Property Rights of any Third Party; (c) it will comply in all material respects with all Applicable Laws as they concern the Products and Services, except where noncompliance arises out of or relates to any acts, errors, omissions, negligence or misconduct of Customer; (d) the Products and Services do not contain any harmful code, time bombs, viruses, worms, backdoors or similar software which may cause damage to any product or data, nor any time-sensitive code or other disabling devices, key lock or code; and (e) its infrastructure and technology sub-processors are subject to obligations no less stringent than its own obligations under this Agreement, and b.well  remains liable for its obligations under this Agreement.

Customer represents and warrants to b.well that: (i) it has the full power, capacity and authority to enter into and perform this Agreement; (ii) its own products and services do not infringe upon or violate the Intellectual Property Rights of any Third Party; (iii) it will comply in all material respects with all Applicable Laws as they concern its access and use of the Products and Services, except where noncompliance arises out of or relates to any acts, errors, omissions, negligence or misconduct of b.well; (iv) the products and services it uses to integrate the Products and Services do not contain any harmful code, time bombs, viruses, worms, backdoors or similar software which may cause damage to the Products or Services; and (v) its infrastructure and technology sub-processors are subject to obligations no less stringent than its own obligations under this Agreement, and Customer remains liable for its obligations under this Agreement.

b.well is further entitled to rely on the information you provide in forms submitted as part of your enrollment in b.well’s Startup program and in the Order Form. Material inaccuracies are grounds for immediate termination.

b.well reserves the right to audit your ongoing compliance with the Startup eligibility criteria. You agree to maintain records sufficient to validate eligibility and to notify b.well within five (5) business days of any Sentinel Event, as defined in the Order Form.

If your eligibility status changes, this Agreement terminates at b.well’s option upon 30 days’ written notice. You may enter into a separate commercial agreement at that time. 

Either Party may terminate upon notice if: (a) the other Party materially breaches and fails to cure within 30 days after notice; (b) the other Party infringes or misappropriates the terminating Party’s Intellectual Property Rights and does not cure within ten (10) business days after notice; (c) the other Party materially breaches in a way that cannot be cured; or (d) the other Party commences dissolution or bankruptcy proceedings, becomes insolvent, or ceases to operate in the ordinary course of business.

Upon termination or expiration of the Agreement, b.well will facilitate the orderly transfer of Customer Data within five (5) business days of Customer’s written request, consistent with the HL7 FHIR content and transport standards implemented by b.well, for so long as reasonably required by Customer but not to exceed thirty (30) days from the date of termination, or as required by law, whichever is shorter (the “wind down period”). All costs associated with transfer or ongoing storage after the wind down period will be paid by Customer at the rate in effect at the time of termination. At the end of the wind down period, b.well will (i) return or destroy Customer Data, other than copies retained for regulatory requirements, disaster recovery or archival purposes, and (ii) certify in writing to Customer that b.well has complied. Notwithstanding the foregoing, nothing in this paragraph shall prevent b.well from conditioning, delaying or withholding the transfer of Customer Data in good faith to protect the confidentiality of personal information from unauthorized disclosure.

You agree to:

• implement, deploy, and maintain the latest supported releases of Company Software as identified in applicable Documentation (for clarity, you agree to implement all Updates within a reasonable time, and acknowledge that b.well is only required to support backwards compatibility for the most recent version of Company Software minus the two most recent releases);
• provide first-tier support, education, and training to your Consumer End Users, in a manner that fairly represents the Documentation;
• supply Company, in the format reasonably specified in the Documentation, with all complete and accurate data necessary for Company to deliver the Products and Services, and maintain all records necessary to validate the data Customer provides to Company; 
• display b.well’s name and Marks in accordance with AUP Section 2;
• Not implement or utilize any online tracking technologies (including, but not limited to, Meta/Facebook pixel and Google Analytics) that could result in the unauthorized disclosure of a Consumer End User’s health information in violation of applicable law, such as HIPAA or the FTC Health Breach Notification Law; and
• for embeddable deployments only, permit the display and capture of Consumer End User consents to b.well’s use of online tracking technologies; provided that such use is limited to essential internal purposes of delivering the Products and Services purchased hereunder.

b.well will invoice you for Billable Users of the Products and Services, in accordance with the Order Form. All fees are payable in U.S. dollars, net thirty (30) days from the invoice date, by wire or ACH transfer. The Annual Platform Fee is billed in advance and is non-refundable. Additional user fees above those included in the Annual Platform Fee are billed monthly in arrears, and every twelve (12) months thereafter. 

If you fail to pay any undisputed amount within ten (10) days after b.well provides written notice of an overdue balance, b.well may suspend your access. Overdue balances accrue interest at 1.5% per month. Pricing does not include applicable taxes and duties, which will be invoiced separately.

Each Party will protect the other’s Confidential Information with at least the same care it uses for its own, but no less than reasonable care. Neither Party will use the other’s Confidential Information for any purpose other than performing its obligations under this Agreement, or disclose it except to employees, contractors, or advisors who have a need to know and are bound by confidentiality obligations at least as restrictive as this Agreement, or as required by law. This Agreement—including its terms and pricing—is the Confidential Information of b.well and may not be shared with third parties without b.well’s prior written consent. With respect to Confidential Information that constitutes a trade secret under the laws of any jurisdiction, each Party shall continue to comply with this Section until the Confidential Information loses its trade secret status other than due to an act or omission of the receiving Party.

The receiving Party shall promptly notify the disclosing Party of any breach or compromise of Confidential Information. Upon termination or request, the receiving Party shall destroy all Confidential Information and certify such destruction in writing. An actual or threatened breach of this Section may cause immediate irreparable harm without adequate remedy at law. If a receiving Party breaches or threatens to breach this Section, the disclosing Party may seek equitable relief to prevent the breach. The Party seeking relief is not required to post a bond or other security or prove the inadequacy of other available remedies.

Notwithstanding the foregoing, the receiving Party may retain a single copy of any Confidential Information to the extent required by Applicable Law or to enforce its legal rights under this Agreement, or to the extent Confidential Information has been electronically archived consistent with the receiving Party’s document-retention policy and cannot be extracted.

Confidentiality obligations survive termination of this Agreement.

6.1  Data Aggregation and Analysis

Subject to compliance with Applicable Law, and on the basis set out in each clause below, b.well may:

• use Customer Data and combine it with data from other customers to conduct internal analyses that enhance the performance of the Products and Services purchased hereunder;
• de-identify Customer Data so that it meets the definition of De-Identified Data in Exhibit A and in accordance with Applicable Law; and
• use De-Identified Data to operate, improve, and develop its Products and Services, provided that b.well will not include De-Identified Data in product or service offerings that it makes available to any third party, or attempt or knowingly enable others to attempt to re-identify De-Identified Data, except as required by Applicable Law or with a valid authorization from the affected individual.

6.2  No Sale/No Transfer Commitment

Notwithstanding any other provision, b.well will not sell, license, transfer, or otherwise make available Consented End User Data to any third party for the purpose of that third party training its own commercial AI or machine learning models, without Customer’s prior written consent. b.well will not use Consented End User Data to train AI models that are offered to third parties as standalone commercial products or services. Consumer End User health information is not shared with third-party AI companies or used to train their algorithms except as specifically authorized under this Section 6.2 with proper consent in place.

6.3  Beta Releases

b.well may provide Customer with access to “alpha,” “beta,” or early stage functionality, integrations, or features, including Bailey AI Assistant™ or AI Health Assistant (each, a “Beta Release”). b.well makes no commitment to release or support any Beta Release generally under the same commercial or other terms. b.well may terminate Customer’s right to use Beta Releases at any time in b.well’s sole discretion, without liability. BETA RELEASES MAY BE INCOMPLETE, MAY NOT FUNCTION AS INTENDED, AND MAY CONTAIN BUGS, ERRORS, OR OTHER PROBLEMS; THEY ARE PROVIDED “AS IS,” AND B.WELL WILL HAVE NO LIABILITY ARISING FROM THEIR USE. 

For Beta Releases that use artificial intelligence, and subject to each end user’s affirmative opt-in consent under b.well’s consumer-facing AI consent notice (as updated from time to time) that has not been withdrawn, Customer authorizes b.well to collect, retain, de-identify, and use end user interactions to operate and improve the Beta Release, train b.well’s consumer-facing AI models, and develop related functionality across its product suite. This authorization is in addition to, and does not replace, each Consumer End User’s consent to b.well under that notice. b.well agrees that it will only use De-Identified Data from Consumer End Users that have consented to use for model training. b.well will not sell or transfer end user data to third parties and will honor consent withdrawals within a commercially reasonable time, without obligation to retrain models or destroy weights already trained on De-Identified Data.

b.well will respond to support requests submitted through b.well’s service desk ticket system within one (1) week. Support is available via b.well’s designated service desk only; b.well does not offer phone support or dedicated account management under the Startup package. Support does not include pre-implementation planning, custom integrations, or corrections to improperly implemented Customer integrations.

b.well owns all right, title, and interest in and to the Products, Services, Company Software, and Marks. All rights not expressly granted to you are reserved. Any improvements, modifications, or enhancements to the Products or Services—even if made at Customer’s request or with Customer’s input—are owned exclusively by b.well. You may voluntarily provide feedback or suggestions to b.well, and hereby grant b.well an irrevocable, royalty-free right to use any feedback for any purpose without obligation to you.

Customer hereby agrees to indemnify, defend, and hold harmless b.well and its agents, employees, and contractors harmless from and against any third-party claim or demand, and any resulting costs, liabilities, damages, and legal fees, made by any third party arising out of or relating to: (i) Customer’s access to or use of the Products or Services in violation of this Agreement; (ii) Customer’s violation of the AUP; or (iii) infringement by Customer of any intellectual property or other right of any person or entity. Customer agrees not to settle any such matter without b.well’s prior written consent. b.well will promptly notify Customer in writing of any such claim, and Customer’s obligations are reduced to the extent b.well’s delay materially prejudices Customer’s defense. Customer may assume and control the defense with counsel reasonably acceptable to b.well, and b.well will provide reasonable cooperation at Customer’s expense and may participate at its own expense with counsel of its choosing. Customer will not settle any claim in a way that admits fault by b.well, imposes any non-monetary obligation on b.well, or fails to release b.well unconditionally, without b.well’s prior written consent, not to be unreasonably withheld. Where Customer does not assume the defense within thirty (30) days of notice, b.well may defend the claim at Customer’s expense and settle it with Customer’s consent, not to be unreasonably withheld.

b.well will defend Customer against any third-party claim alleging that the Products or Services, as provided by b.well and used by Customer in accordance with this Agreement and the Documentation, infringe a United States patent, copyright, or trademark, or misappropriate a trade secret, and b.well will pay the damages and costs finally awarded against Customer by a court of competent jurisdiction, or agreed by b.well in settlement, in respect of such claim. As conditions to b.well’s obligations under this Section, Customer will give b.well prompt written notice of the claim, give b.well sole control of the defense and settlement of the claim, and provide reasonable cooperation at b.well’s expense, provided that Customer’s delay in providing notice reduces b.well’s obligations under this Section to the extent the delay materially prejudices the defense. b.well will not settle any claim in a way that admits fault by Customer, imposes any non-monetary obligation on Customer, or fails to release Customer unconditionally, without Customer’s prior written consent, not to be unreasonably withheld, and Customer may participate in the defense at its own expense with counsel of its own choosing. Any indemnity claims arising in relation to Customer Data are limited by the terms of the DPA or BAA, as applicable.

b.well has no obligation under this Section to the extent a claim arises from: (i) any content, materials, or specifications supplied by Customer; (ii) modification of the Products or Services by anyone other than b.well; (iii) combination or use of the Products or Services with products, services, or data not supplied or approved in writing by b.well, where the claim would have been avoided but for that combination; (iv) use of the Products or Services other than in accordance with the Documentation or in breach of this Agreement; or (v) Customer’s continued use of an allegedly infringing version after b.well has made a non-infringing version available at no additional cost. 

If the Products or Services become, or in b.well’s reasonable opinion are likely to become, the subject of a claim under this Section, b.well may at its option and expense: (i) procure for Customer the right to continue using them; (ii) modify or replace them so that they are non-infringing while retaining materially equivalent functionality; or (iii) if neither (i) nor (ii) is commercially reasonable, terminate the affected Order Form on written notice and Customer shall promptly receive a refund of all prepaid fees for unused Products or Services. This Section states b.well’s entire liability, and Customer’s sole and exclusive remedy, for any claim of infringement or misappropriation.

ACCESS TO AND USE OF B.WELL PRODUCTS AND SERVICES IS PROVIDED TO CUSTOMER “AS IS” AND “AS AVAILABLE.” ALL RISKS PERTAINING TO THE USE OF B.WELL’S PRODUCTS AND SERVICES, AS A PLATFORM SERVICE, ARE ASSUMED BY CUSTOMER. B.WELL MAKES NO WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE, EXCEPT THOSE EXPRESSLY SET FORTH IN THIS AGREEMENT, INCLUDING B.WELL’S OBLIGATIONS UNDER SECTION 8.

b.well may modify, update, interrupt, suspend, or discontinue any Product or Service at any time without notice or liability. b.well may modify the Agreement, Documentation, or related policies from time to time, and will provide Customer with at least thirty (30) days’ prior notice of any material change to the DPA or BAA, as applicable. Customer may terminate the affected Order Form upon thirty (30) days’ written notice following any such modification if it can reasonably demonstrate that the modification is material and detrimental to Customer, and is not required in good faith by b.well for the effective deployment and use of the Products and Services to conform with Applicable Law, a governing trust framework or a recognized interoperability standard for health information exchange. Only in that case shall Customer be entitled to a pro-rated refund of any unused fees. Customer’s continued use of the Products and Services following the effective date of any update constitutes acceptance. 

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER B.WELL, ITS AGENTS, EMPLOYEES, CONTRACTORS, NOR ANY OTHERS INVOLVED IN MAKING PRODUCTS OR SERVICES AVAILABLE WILL BE LIABLE TO CUSTOMER OR ANY OTHER PARTY FOR DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES OR LOSSES RESULTING FROM LOST PROFITS (WHETHER DIRECT OR INDIRECT), LOST DATA, OR BUSINESS INTERRUPTION IN CONNECTION WITH B.WELL PRODUCTS OR SERVICES, EVEN IF B.WELL IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES, EXCEPT AS SET FORTH IN THE DPA OR BAA, AS SPECIFIED IN THE ORDER FORM. THESE LIMITATIONS APPLY TO ALL CLAIMS, INCLUDING CLAIMS IN CONTRACT AND TORT. 

NOTHING IN THIS SECTION LIMITS OR EXCLUDES EITHER PARTY’S LIABILITY FOR GROSS NEGLIGENCE, WILLFUL MISCONDUCT, FRAUD OR FRAUDULENT MISREPRESENTATION, OR FOR ANY LIABILITY THAT CANNOT BE LIMITED OR EXCLUDED UNDER APPLICABLE LAW. NO CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT MAY BE BROUGHT MORE THAN TWELVE (12) MONTHS AFTER THE CLAIMING PARTY FIRST KNEW OR SHOULD HAVE KNOWN OF THE FACTS GIVING RISE TO IT.

Governing Law

This Agreement is governed by the laws of the State of Delaware, without regard to its conflict of laws rules. All disputes will be resolved exclusively in the federal or state courts of New Castle County, Delaware, and the Parties consent to personal jurisdiction therein.

No Assignment; Change of Control 

Neither Party may assign any part of this Agreement without the other Party’s written consent, which may not be unreasonably conditioned, delayed or withheld; provided, that b.well may assign this Agreement without Customer’s express prior written consent in connection with a b.well Change of Control. The assignment or transfer of this Agreement in contravention of this provision shall be null and void.

Relationship of Parties

The Parties are independent contractors. This Agreement does not create any agency, partnership, joint venture, or employment relationship. There are no third-party beneficiaries under this Agreement.

Notices

All notices of breach or termination must be in writing and delivered to the addresses provided in the Order Form. Notice by nationally recognized overnight courier is effective upon receipt; notice by U.S. first class mail is effective on the third (3rd) day after mailing; and notice by email to the email addresses provided in the Order Form is effective upon written confirmation of receipt.

Force Majeure

Neither Party is liable for delays or failures caused by events beyond its reasonable control, including pandemics, acts of government, natural disasters, or labor disputes.

Severability and Waiver

If any provision of this Agreement is held invalid or unenforceable, it will be enforced to the maximum extent permissible and the remaining provisions will remain in effect. No waiver of any right on one occasion constitutes a waiver on any other occasion.

Electronic Signatures

This Agreement may be executed by electronic signature (e.g., DocuSign or equivalent) and delivered electronically, which shall be as effective as an original signed agreement.

Integration

In the event of inconsistency among components of this Agreement, priority is given in the following order: (a) Order Forms; (b) these General Terms and Exhibits; and (c) Documentation and other incorporated materials.

Contact

Legal notices and compliance questions: [email protected] | b.well Connected Health, Inc., 145 West Ostend Street, Suite 300, Baltimore MD 21230.

The following defined terms apply throughout this Agreement:

“Applicable Law” means any statute, law, ordinance, regulation, rule, judgment, order, or other requirement of any federal, state, or local government or court of competent jurisdiction that applies to a Party, including all laws applicable to the processing of personal data.

“Billable User” is a Consumer End User for whom a data connection has been successfully established through health.network’s available pathways for consumer-mediated data access and who has not directed that their ePHR Information be deleted from Customer’s consumer-facing application. Each Individual shall be counted as one (1) Billable User for a trailing 12-month period, regardless of the number of qualifying activities that occurred during that period. Each Consumer End User who directs deletion and later reconnects within the same twelve (12)-month window is counted as a new Billable User.

“Company Software” means any software, applications, code, programs, algorithms, data, databases, and related materials developed or deployed by b.well, including Source Code and software upgrades, made available through Products or Services.

“Confidential Information” means any non-public information of a Party or its Affiliates that is marked confidential or that a reasonable person would understand to be confidential. Confidential Information includes pricing, financial terms, roadmaps, technical specifications, and trade secrets. It does not include information that: (a) is independently developed by the receiving Party; (b) enters the public domain without breach; (c) is lawfully obtained from a third party; or (d) constitutes Customer Data, to the extent that information is covered by the DPA or BAA, as specified in the Order Form.

“Consented End User Data” means health records data and b.well’s AI Health Assistant interaction data attributable to Consumer End Users who have provided valid, specific, and informed opt-in consent to b.well for AI training, and have not subsequently withdrawn consent.

“Consumer End User” means any individual who accesses b.well’s Products and Services through Customer’s platform.

“Customer Data” means any data, content, or information uploaded, submitted, or otherwise provided by Customer, its Permitted Users, or Consumer End Users for Processing by or through the Products or Services.

“De-Identified Data” means Customer Data that has been de-identified such that it cannot reasonably be used to infer information about, or otherwise be linked to, an identified or identifiable individual, in accordance with the de-identification requirements of Applicable Law and prevalent industry standards.

“Documentation” means written materials in electronic or physical form that apply to or describe the Products and Services, including implementation guides, support guides, and other b.well-provided materials, which may be updated by b.well from time to time.

“Force Majeure Event” means any event beyond a Party’s reasonable control, including pandemics, power outages, acts of government, natural disasters, labor disputes, acts of war, or terrorism.

“Intellectual Property Rights” means all registered and unregistered rights granted, applied for, or otherwise in existence under any intellectual property or proprietary rights laws, including patents, copyrights, trademarks, trade secrets, and database rights, in any jurisdiction.

“Marks” means the names, trademarks, service marks, trade names, trade dress, designs, and logos of either Party.

“Order Form” means b.well’s order form that references this Agreement and is used to effectuate Customer’s license or purchase of Products and Services.

“Permitted User” means any individual authorized by Customer to use the Products and Services, including Customer’s employees, contractors, and Consumer End Users, subject to the restrictions in this Agreement.

“Products” means the b.well platform components, development tools, and Documentation described in the applicable Order Form..

“Sentinel Event” has the meaning set forth in the Order Form.

“Services” means any Company Software and related computing, processing, hosting, software-as-a-service, maintenance, or other services that b.well provides under an Order Form.

“Update” means any new version, release, patch, or enhancement to the Company Software or Documentation that b.well makes generally available to Customer during the Term.