Terms and Conditions
Please read this Better Up Agreement (“Agreement”) carefully. By accessing, downloading and/or using all or any part of the BetterUp Services, you (“You” and, where applicable, “Your”) indicate Your acceptance of the following terms from BetterUp, Inc. (“BetterUp”). You agree to be bound by all the terms and conditions of this Agreement. You agree that it is enforceable as if it were a written negotiated agreement signed by You. If You do not agree to the terms of this Agreement, You may not access, download and/or use the BetterUp Services. If You are entering into this Agreement on behalf of a company or other legal entity, You hereby represent that You have the authority to bind such entity to this Agreement, in which case the term “You” shall be construed to refer to such entity. In consideration of the mutual covenants contained in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, You and BetterUp agree as follows:
1. BetterUp Offerings. BetterUp offers leadership, development and performance coaching which includes the right to access and use BetterUp’s mobile applications and online platform (the “BetterUp Platform”), and the right to allow Your employees for whom a subscription is purchased (each, a “User” and collectively, “Users”) to download and use BetterUp’s mobile applications for specified periods (each, a “Subscription Period”), and standard BetterUp support (collectively, the “BetterUp Services”). BetterUp will provide the BetterUp Services pursuant to orders that You will submit through an order form (once accepted by BetterUp, each, an “Order”). Each Order will include a description of the BetterUp Services, the schedule for the delivery of the BetterUp Services, the applicable Subscription Period, and the associated fees and payment terms for the BetterUp Services. Each Order must be accepted by BetterUp to become valid. Each Order will be deemed incorporated into this Agreement by reference and made an integral part of this Agreement. To the extent that a conflict arises between the terms and conditions of an Order and the terms and conditions of this Agreement, the terms of this Agreement will govern.
2. User Relations, Restrictions, Reports and Reporting. User Relationships and Restrictions. User interactions with BetterUp in connection with the BetterUp Services are subject to BetterUp’s standard end-user terms. BetterUp may use any data, information or materials collected or received from Users through these interactions, in accordance with such end-user terms. You are responsible for establishing Your own policies (if any) with Users as to what information is appropriate to share as part of the BetterUp Services. Users will use the BetterUp Platform subject to terms set forth in this provision, and You will not have Your own entity-wide account or direct access to the BetterUp Platform. Any passwords for the BetterUp Platform are BetterUp’s confidential information. You will not (and will not allow anyone else to) (a) rent, lease, copy, disclose, provide access to or sublicense the BetterUp Platform, (b) use the BetterUp Platform for the benefit of, or to provide any service to, a third party, or (c) publicly disseminate information regarding the performance of the BetterUp Platform. BetterUp Reporting. If set forth in the description of services for the applicable Order, BetterUp will, during the term of this Agreement, provide You with reporting outlining certain statistics regarding the BetterUp Services the Users received (“BetterUp Reporting”). You may only use the BetterUp Reporting for Your internal business purposes, in compliance with all applicable laws. Consistent with BetterUp’s standard end-user terms and its confidentiality policies, BetterUp will not disclose User-specific coaching content or results to You.
3. Fees and Payment Terms. The fees and payment terms applicable to the BetterUp Services and related support are set forth in the applicable Order. Interest on any late payments will accrue at the rate of 1.5% per month, or the highest rate permitted by law, whichever is lower, from the date such amount is due until the date such amount is finally paid in full.
4. Term, Termination and Effects of Termination. Unless earlier terminated as set forth in this Agreement, this Agreement commences upon the date You first access, download or use the BetterUp Services (“Effective Date”) and continues to the end of the last effective Subscription Period. Unless otherwise set forth in an Order, BetterUp Services shall have a term of 12 months and shall automatically renew for additional one-year terms unless either party provides notice of non-renewal to the other party no later than 30 days prior to the renewal date. BetterUp may change the pricing for Subscription Terms subsequent to the initial Term (each a “Renewal Term”), in its sole discretion. Either party may terminate this Agreement (including all related Orders) for cause if the other party fails to cure any material breach of this Agreement (including a failure to pay fees) within 10 days after written notice. Upon any expiration or termination of this Agreement, (a) BetterUp will cease providing the BetterUp Services, (b) You and the Users will cease any access to the BetterUp Platform, except Users may contract individually with BetterUp for coaching separately from BetterUp’s client relationship with You, and (c) You may retain and continue use of all BetterUp Reporting provided by BetterUp prior to the effective date of termination or expiration of this Agreement, except if BetterUp terminates this Agreement for cause. Notwithstanding any terms to the contrary in this Agreement, (i) in addition to this sentence, Sections 2, 3, 6, 7, and 8 will survive any termination or expiration of this Agreement, and (ii) no refunds will be issued.
5.Representations and Warranties. Each party represents and warrants that (a) this Agreement is valid, binding and enforceable against it in accordance with its terms, and (b) it will fulfil its obligations under this Agreement in accordance with all applicable laws.
6. Disclaimer. EXCEPT AS SET FORTH IN SECTION 5, BETTERUP MAKES NO WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. COACHING DOES NOT CONSTITUTE MEDICAL ADVICE OR THERAPY. BETTERUP WILL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF BETTERUP.<><>
7.Limitation of Liability. EXCEPT FOR YOUR BREACH OF THE RESTRICTIONS IN SECTION 2 OR YOUR OTHER MISAPPROPRIATION OF BETTERUP’S INTELLECTUAL PROPERTY, TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL (A) EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT; AND (B) EITHER PARTY’S ENTIRE LIABILITY TO THE OTHER PARTY WILL NOT EXCEED THE AMOUNT ACTUALLY PAID BY YOU TO BETTERUP DURING THE PRIOR 12 MONTHS UNDER THIS AGREEMENT.
8. General Provisions. Governing Law and Venue. This Agreement will be governed by and construed in accordance with the laws of the State of California applicable to agreements made and to be entirely performed within the State of California, without resort to its conflict of law provisions. The state or federal court in San Francisco County, California will be the jurisdiction in which any suits should be filed if they relate to this Agreement. Ownership. As between the parties and subject to the grants expressly set forth in this Agreement, BetterUp owns all right, title and interest in and to the BetterUp Services and anonymous/aggregate data, feedback and any and all patent rights, copyrights, trademark rights, trade secret rights and other intellectual property rights embodied in or related to the foregoing. Publicity. You consent to (a) BetterUp’s use of Your name and logo on the BetterUp websites and publicly-available printed materials, identifying You as a customer of BetterUp and describing Your use of BetterUp’s products and services, and (b) a press release with respect to Your use of BetterUp’s products and services. Subcontractors. BetterUp may use the services of third-party coaches and other subcontractors and permit them to provide the BetterUp Services. Third-Party Tools. You acknowledge and agree that the BetterUp Services utilize certain third-party videoconferencing, communications tools and other services used by Users in connection with BetterUp Services, e.g., Skype or FaceTime (“Third-Party Tools”). While user data provided to BetterUp through Third-Party Tools remains subject to BetterUp’s standard end-user terms, use of Third-Party Tools themselves is subject to the terms and conditions of the Third-Party Tool providers. BetterUp is not responsible for the operation of or any changes to the Third-Party Tools or the acts or omissions of Third-Party Tool providers. Assignment. Neither this Agreement nor any right or duty under this Agreement may be transferred, assigned or delegated by You, by operation of law or otherwise, without the prior written consent of BetterUp, and any attempted transfer, assignment or delegation without such consent will be void and without effect. BetterUp may freely transfer, assign or delegate this Agreement or its rights and duties under this Agreement. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties and their respective representatives, heirs, administrators, successors and permitted assigns. Notices. Notices will be deemed given as of the day they are received by email, messenger, delivery service, or U.S. mail (postage prepaid, certified or registered, return receipt requested), and addressed as set forth below, or to such other address as the party to receive the notice so designates by notice. Waiver and Severability. A party’s delay or failure to exercise a right or remedy will not result in a waiver of that right or remedy. If a court of competent jurisdiction holds any provision of this Agreement to be illegal, invalid or unenforceable under the governing law, the remaining provisions will remain in full force and effect, and will be construed so as to most nearly reflect the parties’ intent with respect to such provision. Miscellaneous. This Agreement, including all Orders, constitutes the entire agreement between the parties and supersedes all previous or contemporaneous agreements between the parties, relating to its subject matter, and any change to its terms must be in writing and agreed by each of the parties.