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Verimos, Inc., a Delaware corporation (the “Verimos“) provides a proprietary platform-as-a-service (the “Platform”) that, among other things, is designed to help Verimos’s subscribers assess and support health and well-being among their workforce (“End Users”). The Platform includes a mobile application (the “Mobile App”) to be downloaded and used by End Users. The Platform also includes a customer management dashboard and reporting features (the “Customer Dashboard”). This Service Agreement (this “Agreement”), entered into the date this form is submitted (the “Effective Date”), is by and between Verimos and the customer set forth in the form above (“Customer”), and sets forth the terms and conditions pursuant to which Verimos will provide a subscription to the Platform. The parties hereby agree as follows.
- Provision of the Services. Subject to the terms and conditions of this Agreement, including without limitation Customer’s payment of all of the Fees (defined below) due hereunder, Verimos will (i) provide Customer and its Authorized Users with access to the Customer Dashboard, and (ii) enable Customer to offer End Users content, including text, pictures, videos, links and personalized information or instructions (“Content”), through the Mobile App for personal use by each End User.
- Customer’s Representations. Customer represents and warrants to Verimos that it has the power and authority to enter into this Agreement, and that the information that it provides to Verimos will be current, true, accurate, supportable and complete.
- Customer’s Acknowledgements. The utility of the Platform and Customer’s ability to track and manage End Users depends in large part upon End Users’ adoption and use of the Mobile App and other End User features. Customer acknowledges that it is solely responsible hereunder for driving adoption of these elements and features within its End User base, and that Verimos cannot and does not guarantee adoption or End User use. In addition, Customer acknowledges that Verimos is not a health care provider. Customer is solely responsible for any and all communications and Content transmitted to End Users via the Platform specifically any and all medical or health-related advice or content created by Customer and dispensed via the Platform, and shall defend and indemnify Verimos for any claim, loss, damage and liability arising as a result of any End User claim.
- Limitations on Availability. The Platform or some aspects thereof may require a working internet connection and certain other minimum requirements including Chrome or Chrome-based browsers. Mobile devices accessing the Platform must be running the latest major version of iOS or Android or the version immediately prior thereto. Verimos makes no representation that the Platform is available or permitted in any particular location. Use of the Platform is void where prohibited. Customer and its Authorized Users’ use the Platform at their own initiative and Customer is responsible for compliance with any applicable laws in connection with its and its Authorized Users’ use thereof. Verimos may also impose limits on the use or access to the Platform as required by law.
- Fees and Payment Terms. Applicable pricing, fees and payment terms for and related to Customer’s subscription to the Platform (“Fees”) are for each Authorized User listed in the Customer Dashboard during the monthly billing period. Customer hereby authorizes Verimos to charge the credit card (or other electronic payment method) on file with its account for all Fees on an as-incurred basis. Fees shall accrue each monthly billing period during the Term. All Fees are due and payable in U.S. dollars, non-refundable (except to the extent set forth herein) and are exclusive of applicable sales, excise, use or similar taxes. Customer shall pay all such taxes directly or to Verimos, as required by applicable law. If payment is not made on the respective due date, Verimos may, at its discretion and in addition to other remedies it may have, (i) charge a late fee on the unpaid balance at the lesser of one and one-half percent (1.5%) per month or the maximum lawful rate permitted by applicable law, rounded to the next highest whole month and compounded monthly, and (ii) suspend Customer’s and its Authorized Users’ and/or End Users’ access to the Platform. Customer shall not charge Active Users for access to any application module. In the event of price adjustments, Company shall give Customer ninety (90) days notice.
- Marketing. During the Term, the parties will cooperate to include the name, logo of, and success stories pertaining to Customer on Verimos’s website, promotional and sales literature, and lists of Customers, in each case in accordance with the parties’ respective trademark usage guidelines. In advertising and marketing the Platform and otherwise performing under this Agreement, Customer will (i) not engage in any deceptive, misleading, illegal, or unethical practices, (ii) not make any representations, warranties, or guarantees concerning the Platform that are inconsistent with or in addition to those made by Verimos, and (iii) comply with all applicable federal, state, and local laws and regulations.
- Service Levels. During the Term, the Platform will be available for use by End Users 99.9% of the time, outside of regularly scheduled system maintenance, Force Majeure Events, or failures of third parties.
- Customer’s subscription to the Platform will commence on the Effective Date and will continue for an initial term of one (1) month (the “Term”). This Agreement shall automatically renew for successive terms of one (1) month, unless one party provides thirty (30) day notice of its intent not to renew.
- In the event that any party is in material breach of this Agreement, and the breaching party does not cure such breach within thirty (30) days following notice of such breach, Verimos (if Customer is the breaching party) or Customer (if Verimos is the breaching party) may immediately terminate this Agreement by sending written notice to the breaching party.
- Effect of Termination. Upon termination of the Agreement, Customer and its Authorized Users shall immediately cease all use of and all access to the Platform. Sections 3-5, 6 (as to amounts due at termination or expiration), 11-15 and 18-24 shall survive any termination or expiration. All other rights and obligations shall be of no further force or effect.
- Reservation of Rights With Respect To the Services. Subject to the express rights granted herein, Verimos reserves all rights in and to (a) the Services, including all modifications, improvements, upgrades, derivatives works and feedback related thereto, (b) any software, applications, inventions or other technology developed in connection with the Production Services or support, and (c) all related intellectual property rights therein. Customer hereby assigns to Verimos all right, title and interest it has or may obtain in the foregoing. Except for the express rights granted herein, Verimos does not grant any other licenses, whether express or implied, to any Verimos software, services or intellectual property. If Customer or any Authorized User, submits comments, suggestions, or other feedback regarding the Services (“Feedback”), Customer hereby assigns to Verimos all right, title and interest in and to all Feedback and all intellectual property therein and agrees that Verimos will be free to use such Feedback for any purpose without accounting or obligation.
- Restrictions On Use. Customer and its Authorized Users may internally use the Services solely for their respective intended purposes in accordance with this Agreement. Customer may not rent, lease, lend, sell, redistribute, reproduce or sublicense the Services, or make them available to any third party, other than as expressly set forth herein. Customer and its Authorized Users may not copy, decompile, reverse-engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Services, or any part thereof. If for some reason these restrictions are prohibited by applicable law or by an agreement with a licensor, then the activities are permitted only to the extent necessary to comply with such law or license. Customer shall not exploit the Services in any unauthorized way whatsoever, including, but not limited to, using the Services in a manner not expressly contemplated hereby or following the termination or expiration of this Agreement.
- Confidentiality. Customer acknowledges that the Services, the terms of this Agreement, and any other proprietary or confidential information provided by Verimos constitutes Verimos’s valuable proprietary information and trade secrets (“Confidential Information”). Customer Data shall constitute Customer’s Confidential Information. Each party agrees to preserve the confidential nature of the other’s Confidential Information by retaining and using it in trust and confidence, solely for its internal use except as provided herein, and by using the same degree of protection that such party uses to protect similar proprietary and confidential information, but in no event less than reasonable care. Each party shall have the right to seek an injunction (without having to post a bond) to prevent any breach or continued breach of this section.
- Data Security. Verimos will maintain administrative, physical, and technical safeguards designed to protect the security and confidentiality of Customer’s Confidential Information.
- Limited Warranty. Each party represents and warrants that such party possesses all the rights necessary to enter into this Agreement, and Customer represents and warrants that it has all rights in data and permissions required to provide the data and information provided to Verimos hereunder for use as described herein. Verimos represents and warrants that its Production Services and support shall be performed in a professional and workmanlike manner consistent with industry standards.
- Disclaimer of Warranties and Acknowledgements. EXCEPT AS PROVIDED IN SECTION 17, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES AND ANY CONTENT PROVIDED BY VERIMOS ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND VERIMOS HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT THERETO, EITHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, QUIET ENJOYMENT, AND NONINFRINGEMENT. VERIMOS DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS, THAT THE OPERATION THEREOF OR ANY SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SERVICES WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE THAT VERIMOS GIVES SHALL CREATE A WARRANTY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY.
THE PLATFORM IS NOT DESIGNED FOR THE DELIVERY OF TIME SENSITIVE OR LIFE CRITICAL MEDICAL OR HEALTH RELATED COMMUNICATIONS. CUSTOMER SPECIFICALLY ACKNOWLEDGES THAT OUTAGE AND DOWNTIME MAY OCCUR, AS MAY END USER AND/OR AUTHORIZED USER ERROR IN COMMUNICATING VIA THE PLATFORM, INCLUDING VIA THE MOBILE APP. CUSTOMER ACKNOWLEDGES THE LIMITATIONS INHERENT IN COMMUNICATIONS TECHNOLOGY AND THAT IT IS NOT ENTITLED TO ASSUME THAT ANY COMMUNICATION OR CONTENT DISTRIBUTED THROUGH THE PLATFORM WAS OR WILL BE RECEIVED BY ANY END USER, OR THAT THE END USER INTERACTING WITH THE MOBILE APP NECESSARILY IS THE END USER. Customer specifically acknowledges that verimos shall not be liable for any end user communication or content distributed through the platform or the DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY in connection therewith.
- By Verimos. Verimos shall defend Customer against third party claims that the Platform infringes any United States registered patent or any copyright or misappropriates any trade secret, provided Verimos is promptly notified thereof and given reasonable assistance and the opportunity to assume sole control over defense and settlement. Verimos shall also indemnify and hold Customer harmless from and against any damages and fees (including reasonable attorneys fees) finally awarded in connection with any such claim or agreed in any settlement thereof, provided that Verimos will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Platform (i) not supplied by Verimos, (ii) that are modified after delivery by Verimos, (iii) combined with other products, processes or materials where the alleged infringement relates to such combination, (iv) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (v) where Customer’s use of the Platform is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Platform is held by a court of competent jurisdiction to be or is believed by Verimos to be infringing, Verimos may, at its option and expense (a) replace or modify the Platform to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a license to continue using the Platform, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees. This Section states Customer’s sole and exclusive remedies for claims of infringement.
- By Customer. Customer will defend Verimos against any claim made or brought against Verimos by a third party (i) alleging that Customer’s or any Authorized User’s use of the Platform in violation of this Agreement infringes or misappropriates the intellectual property rights of a third party, (ii) relating to the Customer Data (other than to the extent caused by Verimos’s unauthorized use thereof), or (iii) relating to any violation of law by Customer or any Authorized User, and will indemnify and hold harmless Verimos from any damages and fees (including reasonable attorney’s fees) finally awarded against Verimos in connection with any such claim.
- Limitation of Liability. IN NO EVENT SHALL VERIMOS OR ITS AFFILIATES BE LIABLE FOR ANY INCIDENTAL, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, OR BUSINESS INTERRUPTION, ARISING OUT OF OR RELATED TO THIS AGREEMENT, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, OR OTHERWISE) AND EVEN IF VERIMOS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. In no event shall VERIMOS OR ITS AFFILIATES HAVE AGGREGATE liability HEREUNDER for damages IN EXCESS OF THE FEES CUSTOMER PAID TO VERIMOS FOR ACCESS TO THE PLATFORM IN THE six (6) MONTHS PRECEDING THE CLAIM. The foregoing limitations WILL apply even if the above stated remedy fails of its essential purpose. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY OR EXCLUSION OF CERTAIN DAMAGES, SO THIS LIMITATION MAY NOT APPLY.
- Export and Other Restrictions. Customer may not use or otherwise export or re-export the Platform or elements thereof except as authorized by United States law and the laws of the jurisdiction in which the Platform was accessed or obtained. In particular, but without limitation, the Platform may not be exported or re-exported (a) into any U.S.-embargoed countries or (b) to anyone on the U.S. Treasury Department’s Specially Designated Nationals List or the U.S. Department of Commerce Denied Persons List or Entity List. Customer also agrees that it will not use the Platform for any purposes prohibited by applicable law. The Platform and related documentation are “Commercial Items”, as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. The Commercial Computer Software and Commercial Computer Software Documentation are being licensed to any U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein.
- Any amendments to and waivers under this Agreement shall only be valid if in writing and signed by an executive of Verimos and Customer.
- Force Majeure. Neither party shall be in default for failing to perform any obligation hereunder, other than the payment of monies, to the extent such failure is caused by supervening conditions beyond the parties’ respective control, including without limitation acts of God, civil commotion, strikes, terrorism, failure of third party networking equipment, illegal acts of third parties, failure of the public Internet or changes in the accessibility of third party websites, power outages, labor disputes or governmental demands or restrictions (“Force Majeure Event”).
- The laws of the State of Texas, excluding its conflicts of law rules, govern this Agreement and the provision of the Services. Provision of the Services may also be subject to other local, state, national, or international laws. Venue and jurisdiction of any lawsuit involving this Agreement exists exclusively in the state and federal courts in Travis County, Texas. This Agreement, including all Schedules attached hereto, constitutes the entire agreement between the parties regarding the Services. The section titles in this Agreement are for convenience only and have no legal or contractual effect. Except as expressly stated herein, all rights and remedies of the parties, under this Agreement, in law or at equity, are cumulative and may be exercised concurrently or separately. The exercise of one remedy will not be an election of that remedy to the exclusion of other remedies. Notwithstanding the foregoing, the remedies contained in the SLA shall be the sole and exclusive remedies for any failure to meet the specifications thereof. “Verimos” and all associated logos displayed within the Platform are Verimos’s trademarks (unless otherwise noted). This Agreement operates to the fullest extent permissible by law. Customer may not transfer or assign this Agreement or any of its rights or obligations hereunder without Verimos’s prior written consent, and any attempt to do so shall be null and void. If any provision of this Agreement is unlawful, void or unenforceable, that provision is deemed severable from this Agreement and does not affect the validity and enforceability of any remaining provisions. This Agreement may be executed in two counterparts and electronic signatures shall be binding.