BetterHelp Organizational Service Agreement

This BetterHelp Services Agreement (the "Agreement") is between Customer, an organization or employer on behalf of itself, and Compile, Inc., dba BetterHelp ("Vendor"), with an effective date of when Customer accepts this Agreement through BetterHelp's website(s) and mobile app(s), with reference to the following facts:

RECITALS:

WHEREAS, BetterHelp provides an online platform through which members may connect with licensed therapists for ongoing professional counseling via asynchronous messaging, real-time chat, phone sessions, and video sessions ("Services").

WHEREAS, Customer desires to provide access to Vendor's Services for designated eligible individuals affiliated with Customer, as hereinafter described, to some or all its members.

NOW, THEREFORE, in exchange for the promises made hereunder and for other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Customer and Vendor agree to as follows:

  1. Definitions
    1. "Customer" means any group, organization, or employer to who Services are being provided.
    2. "Participant" means any member of Customer who is eligible to use the Services and who has registered (as outlined in Section 2.5) for Services on the Platform using a unique link provided to members of Customer.

  2. The BetterHelp Platform.
    1. BetterHelp provides an online platform through which counseling may be provided (the Platform). The Platform is available via BetterHelp's website(s) and mobile app(s).
    2. Access to the Platform allows subscribers or other users to connect with licensed therapists for ongoing professional counseling via asynchronous messaging, real-time chat, phone sessions, and video sessions (collectively, Services).
    3. It is understood by the parties that Vendor does not exercise control or direction over the means, methods, or manner by which the licensed therapists exercise professional judgment in the provision of services provided via the Platform and in accordance with this Agreement. The licensed therapists provide services based on their sole professional judgment. It is further understood that the licensed therapists will not prescribe any prescription medication and operate subject to state regulations.
    4. Platform services shall be provided and conducted in English, with services provided in other languages on an as-available basis.
    5. Each Participant's access to the Platform shall be subject to his or her completing enrollment through the online Platform located at https://betterhelp.com and agreeing to the terms and conditions set forth therein (the "Terms and Conditions") as may be amended from time to time at the sole discretion of Vendor.  Vendor's provision of the Platform services and all rights, obligations and liabilities therefor, shall be subject at all times to the Terms and Conditions.

  3. Fees
    1. Vendor agrees to provide Participants access to the Platform in exchange the fees agreed to between Vendor and Customer.
      1. Customer agrees to the above fee to be paid to BetterHelp via one of the following two options:
        1. Credit card through BetterHelp's website(s) and/or mobile app(s); or
        2. Vendor will invoice Customer on monthly basis for the applicable fees. For this Section 3.1.1.2 only, a one thousand dollar ($1,000) minimum will apply for each monthly invoice. If Customer fails to make any payment within 30 days of the date of Vendor's invoice, Vendor shall have the right to cancel the Program memberships associated with the Customer.
      2. Customer will submit email addresses of members Customer wishes for Vendor to provide Services for through the Platform. Customer is solely responsible for updating the eligible list of members.

  4. Customer Obligations. Customer represents and warrants it has the full right, power, and authority to enter into this Agreement and perform its obligations hereunder for the duration of the Term of the Agreement.

  5. Term
    1. This Agreement shall continue on an ongoing basis until terminated by Customer in accordance with the payment terms as set up with account creation on the BetterHelp website(s) and/or mobile app(s).

  6. Termination
    1. Either Party may terminate this Agreement for cause or convenience at anytime with thirty (30) days notice.
    2. Notwithstanding Section 2.5, In the event of termination, Vendor will continue to provide Services for Participants who Customer has already paid for until prepaid period ends.

  7. Confidentiality
    1. For purposes of this Agreement, "Disclosing Party" shall mean the Party that discloses any Confidential Information, as defined below, to the other Party to this Agreement, and the "Receiving Party" shall mean the Party that receives any Confidential Information, as defined below, from the other Party to this Agreement.
    2. For purposes of this Agreement, "Confidential Information" shall include information: (i) that is not known by actual or potential competitors of the Disclosing Party or is generally unavailable to the public; (ii) that has been created, discovered or developed by, or otherwise become known to, the Disclosing Party or in which property rights have been assigned or otherwise conveyed to the Disclosing Party; and (iii) that has material economic value or potential material economic value to the Disclosing Party's present or future business. Confidential Information shall include trade secrets which include all discoveries, developments, designs, improvements, inventions, formulas, software programs, processes, techniques, know-how, negative know-how, data, research, technical data (whether or not patentable or registerable under patent, copyright or similar statutes, and including all rights to obtain, register, perfect, and enforce those proprietary interests) and any other Intellectual Property, customer and supplier lists, price lists, business plans, and any modifications or enhancements of any of the foregoing, and all program, marketing, sales, or other financial or business information disclosed to the Receiving Party by the Disclosing Party, either directly or indirectly, in writing or orally or by drawings or observation, which has actual or potential economic value to the Disclosing Party, any other information that is treated as confidential, regardless of whether it is marked as such, and any other information that a reasonable party would conclude is confidential or proprietary in nature. Confidential Information shall also include, without limitation, employee information not otherwise defined as Protected Health Information by 45 C.F.R. § 160.103, analyses, forecasts, studies, summaries, marketing plans, financial data, business statistics, property, contracts, methods, transactions, affairs, concepts, ideas, services, products, images, graphics, text, audio, video, software and other data, knowledge, content or information in written, oral, visual and/or physical/sample form.
    3. Notwithstanding the foregoing, Confidential Information shall not include any information to the extent it: (i) is or becomes a part of the public domain through no act or omission on the part of the Receiving Party; (ii) is disclosed to third parties by the Disclosing Party without restriction on such third parties; (iii) is in the Receiving Party's possession, without actual or constructive knowledge of an obligation of confidentiality with respect thereto, at or prior to the time of disclosure under this Agreement; (iv) is disclosed to the Receiving Party by a third party having no obligation of confidentiality with respect thereto; (v) is independently developed by the Receiving Party without reference to the Disclosing Party's Confidential Information; or (vi) is released from confidential treatment by written consent of the Disclosing Party.
    4. Notwithstanding the foregoing, portions of Confidential Information may be disclosed pursuant to the request of a governmental agency or third party if such disclosure is required by operation of law, regulation or court order, provided the Receiving Party gives the Disclosing Party prompt written notice of such proposed disclosure in order to enable the Disclosing Party to obtain an appropriate protective order, if it so desires.
    5. The Receiving Party shall hold and maintain the Confidential Information of the Disclosing Party in strictest confidence and in trust for the sole and exclusive benefit of the Disclosing Party. The Receiving Party shall not, without the prior written approval of the Disclosing Party, use for its own benefit, publish or otherwise disclose to others, or permit the use by others for their benefit or to the detriment of the Disclosing Party, any of the Confidential Information of the Disclosing Party.
    6. The Receiving Party understands and acknowledges that any disclosure or misappropriation of any of the Confidential Information of the Disclosing Party in violation of this Agreement may cause the Disclosing Party irreparable harm, and that monetary damages may not be a sufficient remedy. Thus, the Receiving Party agrees that the Disclosing Party shall have the right to apply to a court of competent jurisdiction for an order restraining any such disclosure or misappropriation and for such other relief as the Disclosing Party shall deem appropriate, and the Receiving Party expressly agrees that the Disclosing Party shall be entitled, in addition to any other remedy provided by law, to seek an injunction or other equitable remedy respecting such violation or continued violation. Such right is to be in addition to the remedies otherwise available to the Disclosing Party at law or in equity. If any action at law or in equity is brought to enforce or interpret the provisions of this Section, the prevailing Party in such action shall be entitled to reasonable attorneys' fees.
    7. Upon request, the Receiving Party shall promptly return to the Disclosing Party any and all records, notes and other written, printed or tangible materials pertaining to the Confidential Information of the Disclosing Party.

  8. Data Transmission Security
    1. Data transmission security is the process of sending data from one computer system to another in a secure manner so that only the intended recipient of the data receives the data and the data sent is identical to the data received.  When ePHI (Electronic Protected Health Information) is transmitted over an electronic communications network i.e. "the internet", transmissions of ePHI to and from Vendor will utilize Secure File Transport Protocol (SFTP).

  9. Relationship of the Parties
    1. Customer and Vendor are and shall at all times function as independent contractors under this Agreement. Neither Vendor nor the Customer is an employee, joint venturer, principal, agent (except to the extent otherwise specifically contemplated herein), or partner of the other Party. Neither Vendor or Customer is authorized to assume or create any obligations or liabilities, express or implied, on behalf of or in the name of the other Party, except to the extent otherwise specifically contemplated herein. The employees, agents, representatives, providers, methods, facilities and equipment of a Party shall at all times be under the exclusive direction and control of that Party.

  10. Disclaimer
    1. Customer acknowledges and agrees that except as may be explicitly set forth in this Agreement, Vendor has made no representations, and has expressly disclaimed to the maximum extent permitted by law, all warranties or representations of every kind or nature, either implied or statutory, as to the Services, including without limitation, any implied warranties of merchantability, fitness for a particular purpose, or title.

  11. Indemnification, Limitations of Liability and Insurance
    1. Each Party agrees that it is solely liable for any breach, misrepresentation, error or omission by its employees, agents and representatives concerning the Services or otherwise made by such Party in fulfilling its obligations under this Agreement. Each Party agrees to indemnify and hold harmless the other Party and its affiliates, and their directors, officers, employees, agents, representatives, successors and assigns, from and against any loss, cost, damage or expense, including reasonable attorneys' fees and court costs, arising out of any error, omission or malfeasance of such breaching Party.
    2. Each Party's total liability (including the liability of any of its officers, employees, or agents) relating to claims for damages arising from or relating to the performance of this Agreement shall be limited to direct (reasonably foreseeable) damages and shall in no event exceed the amounts paid by Customer to Vendor in the twelve (12) month time period preceding the claim.
    3. Each Party expressly waives any right to seek consequential, indirect, punitive, or special damages for claimed losses arising from or relating to the performance of this Agreement from the other Party including, without limitation, claims for loss of business, data, revenue, profits, or goodwill, even if the Parties have knowledge of the possibility of such damages and whether or not such damages are foreseeable.
    4. Each Party will maintain such insurance coverage as is reasonably necessary to support its respective indemnification obligations. Upon written request, each Party shall provide evidence of such coverage to the other Party.

  12. Miscellaneous
    1. Entire Agreement; Amendment; Severability.This Agreement (including any Exhibits or attachments hereto) constitutes the entire agreement by and between Vendor and Customer relating in any manner of its subject matter, and any representation, warranty, covenant, understanding or agreement not contained or incorporated in it by reference shall be of no force or effect. This Agreement supersedes all prior proposals, discussions, writings, and agreements between the Parties relating to the subject matter hereof. This Agreement may only be modified in writing, signed by an authorized representative of each Party. In the event any provision of this Agreement shall be determined to be invalid or unenforceable, such invalidity or unenforceability shall not invalidate or render unenforceable the entire Agreement, but rather this Agreement shall be construed as if not containing the particular invalid or unenforceable provision or provisions, and the rights and obligations of the Parties shall be construed and enforced accordingly.
    2. Waiver. Any failure on the part of a Party to comply with any of its obligations, agreements, or responsibilities under this Agreement may be waived by the other Party to whom such compliance is owed. No waiver of any provision of such agreements shall be deemed a waiver of any other provision, nor shall any waiver constitute a waiver of any failure other than that waived.
    3. Force Majeure. Neither Party shall have liability to the other as a result of a Force Majeure Event; provided, however, that the non-performing Party uses commercially reasonable efforts to avoid or remove such causes of nonperformance and restores performance as soon as such causes are removed. For purposes of this Agreement, "Force Majeure Event" means an event not reasonably foreseeable, beyond a Party's reasonable control, and occurring without its fault or negligence, including, without limitation (a) an act of nature, such as fire, flood, earthquake, storm, tornado, lightning, landslide, sink hole, or outbreak of disease, (b) a service failure caused by third parties, such as a power or utility outage or a labor dispute affecting suppliers or subcontractors, (c) a civil disruption such as war, invasion, insurrection, trade embargo, or activities by terrorists or public enemies, or (d) action by a governmental body that enjoins or prevents performance by a Party.
    4. Governing Law; Jurisdiction; Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of California, without regard to the conflict of laws principles of such State. Jurisdiction and venue for any and all disputes under this Agreement shall be the state and/or federal courts of California.

Last Updated: May 22, 2019