Terms of service - Enterprise

BEFORE YOU PARTICIPATE IN THE PROGRAM(S) OPERATED BY HEALNOW, INC. (“HEALNOW”) THAT ARE COVERED BY THESE HEALNOW PARTNER TERMS (THE “TERMS”), PLEASE READ THESE TERMS CAREFULLY. BY REGISTERING AN ACCOUNT WITH HEALNOW, (I) YOU OR THE ENTITY THAT YOU REPRESENT (“PARTNER”) AGREE TO BE BOUND BY THESE TERMS TO THE EXCLUSION OF ALL OTHER TERMS, AND (II) YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO BIND PARTNER.

1. HealNow Responsibilities

   HealNow will: (i) accept orders for all products sold (“Partner Products”) at Partner stores through HealNow's proprietary platform (the “Platform”) from Partner customers (“Orders”), and (ii) forward each Order to the Partner Store. If HealNow determines, upon documented evidence, that continuing to support Orders of a particular Partner Product or Partner Store could subject HealNow to liability, then HealNow may, upon ninety (90) days notice, remove such Partner Product and/or Partner Store from the Platform. As part of the registration process, Partner will identify an administrative user name and password for Partner’s Company account. HealNow reserves the right to refuse registration of, or cancel passwords it deems inappropriate.

2. Partner Responsibilities

   Partner will: (i) create all Orders for their customers, (ii) prepare each Partner Product(s) based on all orders received, (ii) deliver Orders to Partner customers, and (iii) promptly notify HealNow of any changes to the pricing, availability, description, or other characteristics of the Partner Products. Partner will install any equipment reasonably required by HealNow for Partner to create and receive Orders (including, without limitation, a computer, iPad, or other automated, electronic means of receiving Orders. Partner represents, covenants, and warrants that Partner will use the Services only in compliance with HealNow’s standard published policies then in effect (the “Policy”) and all applicable laws and regulations. [Partner hereby agrees to indemnify and hold harmless HealNow against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) as a direct result of the gross negligent acts or intentional misconduct from Partner’s use of Services.

3. Payment & Fees

   Partners will pay HealNow the then applicable fees described in the Order Form for the Services, Additional Order Fees and Implementation Services in accordance with the terms therein (the “Fees”). HealNow one (1) month subscription fee payment must be made prior to initiation of services which begins with the Welcome Call. If the partner is paying the subscription fee annually in advance, payment in full is due prior to the welcome call. HealNow will invoice partner on a monthly basis for all applicable fees accrued during the preceding month, and the amounts due under each invoice shall be payable within thirty (30) days. Subject to Partner’s written consent, HealNow reserves the right to modify or replace this Agreement or change the Fees or applicable charges no more than once annually, by no more than 3% upon ninety (90) days prior notice to Partner (which may be sent by email) by providing Partner with an amendment or other replacement to this Agreement that will expressly supersede this Agreement and be mutually agreed upon by both parties. If Partner believes that HealNow has billed Partner incorrectly, Partner must contact HealNow no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to HealNow’s customer support department. Partners will receive payment within 48 hours of Order(s) completed by their customer(s). Each payment will be sent to the Partner’s bank account that was submitted during the registration process.

4. Termination

   This Agreement shall commence on the Effective Date and continue for the Initial Service Term set forth on the Order Form, whereupon it will automatically renew for successive periods of one (1) year each absent notice of non-renewal at least thirty (30) days prior to the expiration of the then-current term, in each case unless earlier terminated in accordance with Section 4. Partner can terminate this Agreement for any reason at any time after giving at least ninety (90) days prior notice. Either party may terminate this Agreement if the other party materially breaches a provision of this Agreement and fails to cure such breach within thirty (30) days after receiving written notice of such breach from the non-breaching party. Partner will pay in full for the Services up to and including the last day on which the Services are provided. Neither Partner nor HealNow will be required to pay any fee in connection with any termination by either party, or be liable to the other as a result of termination of this Agreement for any damages, for the loss of goodwill, prospective profits or anticipated income, or on account of any expenditures, investments, leases or commitments made by either Partner or HealNow. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.

5. Representations and Warranties

   Each party represents and warrants that it has the full right, power and authority to enter into and perform its obligations under this Agreement without breaching any obligation to any third party. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN, THE PLATFORM, HEALNOW SERVICES, AND MARKETING MATERIALS ARE PROVIDED “AS IS” AND WITHOUT WARRANTY OF ANY KIND, AND EACH PARTY HEREBY DISCLAIMS ANY AND ALL EXPRESS, IMPLIED OR STATUTORY WARRANTIES. HealNow shall (a) use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services, (b) implement industry standard methods to prevent the introduction of viruses and other harmful code in the Services, and shall (c) perform the Implementation Services in a professional and workmanlike manner. HealNow will undertake commercially reasonable efforts to make the Services available 99.9% of the time (“Uptime Target”). The Uptime Target will be measured on a monthly basis, with all hours weighted equally, but will exclude any time referred to in the next sentence . Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by HealNow or by third-party providers, or because of other causes beyond HealNow’s reasonable control, but HealNow shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. No maintenance shall exceed more than 3 hours per month. If Healnow fails to meet the Uptime Target in any month during the term of this Agreement, then, as Partner’s sole and exclusive remedy (and HealNow’s sole liability), HealNow will provide Partner a credit for the following month’s invoice as follows:

   Availability	Credit
   97.5% – 99.8%	5%
   95% – 97.5%	10%
   < 95%	15%

   In order to receive downtime credit, Partner must notify Healnow within seventy-two (72) hours from the time of downtime, and failure to provide such notice will forfeit the right to receive downtime credit. All credits provided hereunder are nonrefundable. Partner acknowledges that the operation of the Platform may from time to time encounter technical or other problems and may not necessarily continue uninterrupted or without technical or other errors and HealNow shall not be responsible to Partner or others for any such interruptions, errors or problems or an outright discontinuance of the Platform. Both parties acknowledge that neither party has any expectation or has received any assurances for future business or that any investment by a party will be recovered or recouped or that such party will obtain any anticipated amount of profits by virtue of this Agreement.

6. Indemnification

   HealNow will defend, indemnify, pay and hold harmless Partner its subsidiaries and affiliates, and their respective officers, directors, shareholders, employees and agents from and against any third-party claims arising from: (i) any bodily injury (including death) or damage to tangible or real property to the extent caused by HealNow’s personnel or products; or (ii) the violation of the intellectual property of the third party by HealNow’s Materials; provided that the Partner provides HealNow with (a) prompt notice of any claims, (b) the option to assume sole control over defense and settlement of any claim, and (c) reasonable assistance in connection with such defense and settlement (at the HealNow’s expense). The Partner will defend, indemnify, pay and hold harmless HealNow, its subsidiaries and affiliates, and their respective officers, directors, shareholders, employees and agents from and against any third-party claims arising from: the violation of the intellectual property of the third party by the Partner’s Materials; provided that HealNow provides the Partner with (a) prompt notice of any claims, (b) the option to assume sole control over defense and settlement of any claim, and (c) reasonable assistance in connection with such defense and settlement (at the Partner’s expense).

7. Limitation of Liability

   Except with respect to amounts payable to third parties under Section 7 (Indemnification), (i) neither party will be liable to the other under this Agreement, for indirect, special, punitive or consequential damages, and (ii) each party’s maximum aggregate liabilities related to or in connection with this Agreement shall not exceed the total amount paid or payable by one party to the other party in the twelve (12) month period immediately preceding any claim.

8. General Provisions

   Subject to Partner’s prior written consent, HealNow may from time to time use Partner’s name and logo as required to perform its responsibilities under this Agreement, and in marketing material and promotions. The terms and conditions of this Agreement shall be considered confidential information of HealNow, and Partner will not disclose such terms and conditions to any third party. Nothing in this Agreement is to be construed as creating an agency, partnership, or joint venture relationship between HealNow and Partner, and except as expressly set forth herein, each party shall be responsible for its own costs of performance hereunder. This Agreement represents the entire agreement between the parties with and supersedes all prior agreements and communications of the parties, oral or written, with respect to the subject matter hereof. Except as set forth herein, no amendment to, or waiver of, any provision of this Agreement will be effective unless in writing and signed by both parties. The waiver by any party of any breach or default will not constitute a waiver of any different or subsequent breach or default. This Agreement is governed by and interpreted in accordance with the laws of the State of New York without regard to the conflicts of laws principles thereof. The parties hereby consent to exclusive jurisdiction in the courts of New York County, New York. Neither party may assign this Agreement in whole or in part without the other party’s prior written consent except in connection with any merger, acquisition, reorganization or sale of all or substantially all of such assigning party’s assets or business to which this Agreement relates. This Agreement will be binding upon, and inure to the benefit of, the permitted successors and assigns of each party, but shall not confer any rights or remedies upon any other third party. If any provision of this Agreement is held to be invalid, illegal or unenforceable for any reason, such invalidity, illegality or unenforceability will not affect any other provisions of this Agreement, and this Agreement will be construed as if such invalid, illegal or unenforceable provision had never been contained herein.