This BetterHelp Services Agreement (the "Agreement") is between Customer, an organization or employer on
behalf of itself, and BetterHelp, Inc. ("BetterHelp"), 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:
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
WHEREAS, Customer desires to provide access to BetterHelp'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 BetterHelp agree to as follows:
- "Customer" means any group, organization, or employer to whom Services are being provided.
- "Intellectual Property" means all of the following: (a) all inventions (whether patentable or un-patentable and whether or not reduced to practice), all improvements thereto,; (b) all trademarks, service marks, trade dress, logos, slogans, trade names, corporate names, web domain names, other source identifiers, and telephone numbers, together with all translations, adaptations, derivations, and combinations thereof and including all goodwill associated therewith,; (c) all copyrightable works,; (d) all mask works; (e) all trade secrets and confidential, technical, and business information (including ideas, research and development, know-how, formulas, compositions, manufacturing and production processes and techniques, technical data, designs, drawings, specifications, pricing and cost information, and plans and proposals); (f) all computer software (including source code, executable code, data, databases, and related documentation); (g) all advertising and promotional materials; (h) all other proprietary materials and information; and (i) all copies and tangible embodiments thereof (in whatever form or medium).
- "Intellectual Property Rights" mean all rights, title and interest in and to Intellectual Property in any jurisdiction throughout the world including, as applicable: (a) all patents, patent applications, and patent disclosures, together with all reissuances, continuations, divisions, continuations-in-part, revisions, extensions, and reexaminations thereof; (b) all copyrights, and all applications, registrations, and renewals in connection therewith; (c) all mask work applications, registrations, and renewals in connection therewith; and (d) all other proprietary rights.
- "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.
- The BetterHelp Platform.
- 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).
- 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).
- It is understood by the parties that BetterHelp 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.
- Platform services shall be provided and conducted in English, with services provided in other languages on an as-available basis.
- 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 BetterHelp. BetterHelp's provision of the Platform services and all rights, obligations and liabilities therefor, shall be subject at all times to the Terms and Conditions.
- BetterHelp agrees to provide Participants access to the Platform in exchange for the fees agreed to between BetterHelp and Customer.
- Customer agrees to the above fee to be paid to BetterHelp via one of the following two options:
- Credit card through BetterHelp's website(s) and/or mobile app(s); or
- BetterHelp will invoice Customer on monthly basis for the applicable fees. For this Section 22.214.171.124 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 BetterHelp's invoice, BetterHelp shall have the right to cancel the Program memberships associated with the Customer.
- Customer will submit email addresses of members Customer wishes for BetterHelp to provide Services for through the Platform. Customer is solely responsible for updating the eligible list of members.
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.
- It is the responsibility of the Customer to obtain all legally required consents/provide all legally required disclosures to Customer’s members in order to obtain the email addresses of the Customer's members and provide these to BetterHelp or to upload these to the self-service BetterHelp landing page (whichever is applicable), for the purpose of BetterHelp administering the eligibility of its members to use the Services contemplated herein.
- 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).
- Either Party may terminate this Agreement for cause or convenience at anytime with thirty (30) days notice.
- Notwithstanding Section 2.5, In the event of termination, BetterHelp will continue to provide Services for Participants who Customer has already paid for until prepaid period ends.
Marketing, sales and promotion
Intellectual Property Rights.
- Subject to the terms of this Agreement, BetterHelp may use promotional or marketing material to disclose its partnership with Customer hereto.
- Customer may promote its partnership with BetterHelp, provided that, at all times, Customer will clearly, conspicuously, and accurately disclose its material connection with BetterHelp as required under applicable FTC regulations. See 16 CFR 255.5.
- BetterHelp shall own all right, title and interest, including all related Intellectual Property Rights, in and to the Services and Platform. The transactions and other matters set forth in this Agreement are not intended to constitute, and are not, a sale of any tangible or intangible property, and this Agreement is not intended to, and does not, convey to Customer any right of ownership in or related to the Platform, Services or the Intellectual Property Rights now or hereinafter owned by BetterHelp.
- Except as expressly permitted in this Agreement, Customer shall not, directly or indirectly: (a) use any BetterHelp Confidential Information to create any software or documentation that contains features or functionality that is similar to the Platform; (b) disassemble, decompile, reverse engineer or use any other means to attempt to discover any source code or underlying ideas, algorithms or organization of the Platform (except and only to the extent these restrictions are expressly prohibited by applicable law); (c) encumber, sublicense, transfer, sell, export, re-export, distribute or otherwise commercially exploit the Platform for the benefit of any third party (e.g., any time-sharing or service bureau arrangement); (d) copy, create derivative works of or otherwise modify the Platform; (e) use the Platform in a manner that unreasonably interferes with BetterHelp’s other customer’s use thereof; or (f) permit any third party to do any of the foregoing. Customer will promptly notify BetterHelp in writing of any unauthorized use, reproduction or distribution of the Platform that it becomes aware of.
- 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.
- 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 identifiable information “PII” and employee health information “Health Information”, 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.
- 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.
- 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.
- 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.
- 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.
- 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.
Data Transmission Security
- 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 BetterHelp will utilize Secure File Transport Protocol (SFTP).
Relationship of the Parties
- Customer and BetterHelp are and shall at all times function as independent contractors under this Agreement. Neither BetterHelp 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 BetterHelp 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.
- Customer acknowledges and agrees that except as may be explicitly set forth in this Agreement, BetterHelp 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.
Compliance with Laws. Each party is responsible for compliance with all applicable federal, state and local laws, rules and regulations (Applicable Law) related to the performance of its rights and obligations under the Agreement. Each party shall take all measures necessary to promptly remedy any violation(s) of Applicable Law for which it is responsible, and shall promptly notify the other party of any violation(s) thereof. Customer shall obtain at its own cost any and all necessary consents, licenses, approvals and permits required for the provision of the Services via the Platform.
Indemnification, Limitations of Liability and Insurance
- 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.
- 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 BetterHelp in the twelve (12) month time period preceding the claim.
- 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.
- 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.
- Entire Agreement; Amendment; Severability.This Agreement (including any Exhibits or attachments hereto) constitutes the entire agreement by and between BetterHelp 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 be modified by the BetterHelp at any time in its sole discretion. 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.
- 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.
- 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.
- 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.
- Other. Customer acknowledges and agrees that except as may be explicitly set forth in this Agreement, BetterHelp has made no representations, and has expressly disclaimed certain warranties or representations implied or statutory, as to the Services, including any implied warranties of merchantability or title, fitness for a particular purpose. BetterHelp does not warrant that the Services or Platform will be uninterrupted, timely or error free. Customer acknowledges that BetterHelp does not give any advice on the taxation treatment of this Agreement or the provision of services hereto. BetterHelp does not provide any representations or warranties regarding how activities under this Agreement impact ERISA or high deductible health plans.