Whil Concepts, Inc. Master Services Agreement

1. Scope.

These Terms and Conditions shall apply to Customer's use of Whil's subscription services, packaged professional services, all linked pages, content, products and offline components ("Service" or "Services") identified in one or more ordering documents signed by the parties, including any exhibits thereto ("Order" or "Orders"). These Terms and Conditions and all Orders (collectively referred to as the "Agreement") represent the parties' entire understanding regarding the Services and shall control over any different or additional terms of any purchase order or other non-Whil ordering document, and no terms included in any such purchase order or other non-Whil ordering document shall apply to the Services. In the event of a conflict between these Terms and Conditions and an Order, the terms of the Order shall control. All capitalized terms not defined herein shall have the meanings attributed in the Order.

2. Definitions

"Accrued User Fees" means the subscription fees for Premium Coverage plans paid by Authorized Users directly to Whil. Accrued User Fees does not include subscription fees for Basic Coverage plans paid by Authorized Users directly to Whil.

"Authorized Users" means Customer and any individuals authorized to use the Services by Customer as specified in an Order Form. Authorized Users may be employees, contractors or customers of Customer and their respective family members or friends.

"Customer Content" means any materials or other information which is made available to Whil by Customer (or on Customer's behalf), including but not limited to trade names, trademarks and service marks for any customization of the Services for the Customer.

"Customer Data" means the information obtained through Customer's use and its Authorized User's use of the Services, including any information provided by Customer about Authorized Users.

"Equipment" means the tools by which Customer and its Authorized Users will access the Whil Technology, including Internet access, computers, computer operating systems, mobile devices, and web browsers. Whil has no responsibility for providing Equipment.

"Intellectual Property Rights" means copyrights, trademarks, patents, service marks, trade secrets and other intellectual property rights (registered or unregistered).

"Malicious Code" means viruses, worms, Trojan horses, time bombs, and other harmful or malicious code, files, scripts, agents or programs.

"Order Form(s)" means any document used to place an order hereunder, including addenda and supplements thereto, the terms of which are agreed to by Whil and Customer in writing. Order Forms shall be deemed incorporated herein by reference.

"Services" means Whil's mindfulness meditation, yoga and leadership training services developed, operated and maintained by Whil and accessible via https://www.whil.com (or other designated websites) and mobile devices, to which Customer and Authorized Users are being granted access under this Agreement. The Services include the Whil Technology.

"Usage Rights" means the number of Authorized Users for which a Customer has paid to provide access to use to the Whil Technology.

"Whil Technology" means all of Whil's proprietary technology (including video, audio, animations, data, text, photos, software, processes, algorithms, API's, user interfaces, know-how, techniques, designs and other tangible or intangible materials or information) made available to Customer and Authorized Users by Whil through the Services.

3. Services

3.1. Right to use the Services. During the Subscription Term set forth in an Order, Whil grants to Customer a non-exclusive, non-transferable, non-assignable, worldwide right to permit those individuals authorized by Customer or on Customer's behalf, and who are Customer's employees, agents, contractors or customers ("Users"), to access and use the Services subject to the terms of the Agreement. All rights not expressly granted to Customer are reserved by Whil. Whil reserves the right to make changes, modifications and enhancements to the Services from time to time.

Each Order defines specific usage rights ("Usage Rights"), and Customer shall at all times ensure that its use does not exceed its Usage Rights.

Customer and Authorized Users shall be solely responsible for obtaining and maintaining appropriate equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, internet access, computers, computer operating systems, mobile devices, and web browsers (collectively, "Equipment"). Customer shall ensure that Equipment complies with all configurations and specifications set forth in Whil's published documentation and FAQs.

Customer shall be responsible for maintaining the security of the Equipment and Customer's account access passwords. Customer and Whil agree to make every reasonable effort to prevent unauthorized third parties from accessing the Services.

3.2. Authorized User Accounts. In order to use the Services, each Authorized User will need to create an account through the Services and accept the Whil Terms & Conditions located at https://www.whil.com/terms (the "Terms & Conditions"). Any Authorized User violating the User Terms & Conditions may have the Authorized User's account and access to the Services suspended or terminated as provided therein.

3.3. Professional Services. From time to time during the term of this Agreement, Whil may provide Customer with certain professional services as described in a written statement of work executed by both parties ("Professional Services"). Whil shall retain all ownership rights to any and all work product provided to Customer as part of the Professional Services with the exception of any technology, materials or ideas supplied by Customer for incorporation into such work product. Whil grants Customer a royalty-free, non-exclusive, non-transferable worldwide license to use such work product in connection with the Services. Customer acknowledges that nothing in this Agreement shall restrict or limit Whil from providing similar services for any third party.

3.4. Whil Responsibilities. Whil will: (i) use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, except for (a) planned downtime, or (b) any unavailability caused by circumstances beyond Whil's reasonable control, including without limitation, acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Whil employees), Internet service provider failures or delays, or denial of service attacks; (ii) provide the Services only in accordance with applicable laws and government regulations; and (iii) ensure that the servers and other hardware related to the Services are maintained in a secure environment, exercising a standard of care customary in the industry.

3.5. Customer Responsibilities. Customer shall: (i) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify Whil promptly should Customer become aware of any such unauthorized access or use; and (ii) use the Services only in accordance with its intended purpose and applicable laws and government regulations, and (iii) be responsible for the accuracy, quality and legality of any Customer Content provided to Whil. Customer shall not: (a) make the Services available to anyone other than its Authorized Users; (b) sell, resell, rent or lease the Services; (c) knowingly use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortuous material, or to store or transmit material in violation of third-party privacy rights; (d) knowingly use the Services to store or transmit Malicious Code; (e) knowingly interfere with or disrupt the integrity or performance of the Services or third-party data contained therein; or (f) attempt to gain unauthorized access to the Services or its related systems or networks.

3.6. License to Customer Content. Customer hereby grants Whil a limited, non-exclusive, non-transferable, worldwide, royalty-free license during the term of this Agreement solely to use and distribute the Customer Content as part of the Services.

3.7. Customer Data. All Customer Data shall be owned by Customer and may only be used by Whil in order (i) to deliver and optimize the Services and (ii) to develop behavioral insights about use of the Services in such a way that does not identify the Customer or any Authorized User. Whil is not a medical device and does not offer medical advice. Whil will take steps to provide Authorized Users with sharing controls to ensure Authorized Users remain in control of their personal data. Whil will maintain all Customer Data in confidence, including without limitation any personal identifiable information regarding Authorized Users.

Customer shall be solely responsible for the accuracy, quality, content and legality of Customer Data, the means by which Customer Data is acquired and the transfer of Customer Data by Customer outside of the Whil Services.

3.8. Future Functionality. Customer agrees that purchase of Services are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Whil regarding future functionality or features.

4. Billing and Payment

4.1. Fees. Customer shall pay all fees set forth in an Order. Except as otherwise specified herein or in an Order Form (i) fees are based on services purchased and not actual usage; (ii) payment obligations are non-cancelable; and (iii) fees paid are non-refundable. All fees are exclusive of taxes, levies, or duties imposed by taxing authorities, and Customer shall be responsible for payment of all such taxes, levies, or duties (excluding taxes based on Whil's income), even if such amounts are not listed on an Order. Customer shall pay all fees in U.S. Dollars or in such other currency as agreed to in writing by the parties.

4.2. Invoicing and Payment. All amounts invoiced hereunder are due and payable as specified in the Order. Unpaid invoices that are not the subject of a written good faith dispute are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all reasonable expenses of collection. Customer is responsible for providing complete and accurate billing and contact information to Whil and notifying Whil of any changes to such information.

If at any time Whil determines that Customer is exceeding the Usage Rights, Whil shall notify Customer and Customer shall bring its usage within the limits of such Usage Rights. If Customer fails to do so within 30 days of receipt of Whil's notice, Whil reserves the right to charge and Customer agrees to pay Whil's then-current usage fees for such overage.

Whil may immediately suspend Customer's password, account, and access to the Services if (i) Customer fails to make payment due within ten business days after Whil has provided Customer with notice of such failure; or (ii) Customer violates Section 3, or 7 of these Terms and Conditions. Any suspension by Whil of the Services under the preceding sentence shall not relieve Customer of its payment obligations under the Agreement.

4.3. Renewal. Whil is an on-going membership subscription service. If not otherwise stated in the Order Form, subscriptions to the Services will be automatically renewed at the end of the initial term and each subsequent term until cancelled and any associated annual fees will increase at a rate of 5% per annum.

4.4. Suspension and Collection Fees. If Customer fails to make payment within the terms of the Order Form, Whil may, upon 15 days' notice and provided non-payment is not cured within such period, suspend its provision of the Services and any other services under this Agreement until payment is made. Customer agrees to pay all reasonable legal fees and other costs of collection incurred by Whil in connection with Customer's breach of its payment obligations hereunder.

4.5. Accrued User Fees. Where specified in the Order Form, Authorized Users may be required to pay a monthly fee for their individual Premium Coverage subscription, or a proportion thereof, and their financial contributions accrued by Whil until the end of the term ("Accrued User Fees"). Upon Customer renewal at the end of the term, and where reflected on the Order From, Customer may use the Accrued User Fees as a credit when renewing Premium Coverage plans to effectively lower the cost of the following year's program. Should the Agreement be cancelled, Customer will forfeit any remaining Accrued User Fees.

5. Term and Termination

5.1. Term of Agreement. The Agreement shall commence as of the date set forth in the first Order and, unless earlier terminated as set forth below, shall remain in effect through the end of the Subscription Term in any current Order. All sections of the Agreement which by their nature should survive termination will survive, including without limitation, accrued rights to payment, use restrictions and indemnity obligations, confidentiality obligations, warranty disclaimers, and limitations of liability.

5.2. Termination for Cause. This Agreement may be terminated by either party: (i) if the other party is in material breach of this Agreement and the breach is not cured within 30 days after written notice of the breach; or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.

5.3. Refund or Payment upon Termination. Upon any termination for cause by Customer, Whil shall refund Customer any prepaid fees covering the remainder of the term of all Order Forms after the effective date of termination. Upon any termination for cause by Whil, Customer shall pay any unpaid fees covering the remainder of the term of all Order Forms after the effective date of termination. In no event shall any termination relieve Customer of the obligation to pay any fees payable to Whil for the period prior to the effective date of termination or entitle Customer to a refund of any Accrued User Fees specified in the Order Form.

5.4. Surviving Provisions. The following Sections shall survive termination of this Agreement, together with any payment obligations accrued prior to termination and any other provisions which by their plain meaning are intended to survive: Scope, Definitions, Term and Termination, Proprietary Rights, Confidential Information, Warranties and Disclaimers, Mutual Indemnification, Limitation of Liability and General.

6. Proprietary Rights

6.1. Reservation of Rights. Subject to the limited rights expressly granted hereunder, Whil and its licensors reserve all right, title and interest in and to the Services and Software (including all derivatives or improvements thereof), including the Whil Technology and all related Intellectual Property Rights. No rights are granted to Customer hereunder other than as expressly set forth herein. Customer shall not: (i) permit any third party to access the Services except as permitted hereunder; (ii) create derivate works based on the Services; (iii) copy, frame or mirror any part or content of the Services; (iv) reverse engineer the Services; or (v) access the Services in order to (a) build a competitive product or service or (b) copy any features, functions or graphics of the Services.

6.2. Suggestions. Customer hereby grants Whil a royalty-free, worldwide, irrevocable, transferable, perpetual license to use and incorporate into the Services or other Whil services or products any suggestions, enhancement requests, recommendations or other feedback provided by Customer or any other party relating to the Services. Any rights not expressly granted herein are reserved by Whil.

6.3. Statistical Information. Notwithstanding anything else in the Agreement or otherwise, Whil may monitor Customer's use of the Services and use Customer Data in an aggregate and anonymous manner, compile statistical and performance information related to the provision and operation of the Services, and may make such information publicly available, provided that such information does not identify Customer's Confidential Information. Whil retains all intellectual property rights in such information.

7. Confidential Information.

Each party may have access to the other party's information, which shall be deemed confidential information if identified as such by the disclosing party or if the information by its nature is normally and reasonably considered confidential, such as information regarding products, methodology, research, customers, business partners, business plans and any information which provides a competitive advantage. The receiving party shall protect the disclosing party's confidential information with the same degree of care it uses for the receiving party's own confidential information (and at least a reasonable degree of care), shall use the information only to carry out this Agreement, and shall disclose the information only to the receiving party's employees (or agents bound by similar confidentiality obligations) with a need to know for that purpose. Confidential information shall remain the property of the disclosing party and shall be destroyed upon request. Notwithstanding the above, the receiving party shall be required to accelerate the destruction of any archival back-up tapes created in the ordinary course of business, even if such archival back-up tapes contain confidential information. Information shall not be deemed confidential information if it: (i) is disclosed by the disclosing party to others without restriction on use and disclosure; (ii) becomes known to the receiving party without restriction from a third party who is not in breach of a confidentiality agreement with the disclosing party; (iii) is already known by the receiving party at the time of disclosure; or (iv) is independently developed by the receiving party without any reliance on the confidential information of the disclosing party. Confidential information may be disclosed to the extent required by applicable law, provided the disclosing party is given reasonable advance notice of such disclosure. The terms of this Agreement shall be considered the confidential information of each party, but the parties may disclose their working relationship in the normal course of doing business.

8. Warranties and Disclaimers

8.1. Warranties. Each party represents and warrants to the other party that it has the power and authority to enter into the Agreement. Whil warrants to Customer that it will use best efforts to (a) perform the Services substantially in accordance with its documentation under normal use; and (b) provide the Services in a manner consistent with generally accepted industry standards. Customer must notify Whil of any warranty deficiencies within 30 days from performance of the relevant Services in order to receive warranty remedies.

8.2. Remedy. For breach of the express warranty set forth above, Customer's exclusive remedy shall be the re-performance of the deficient Services. If Whil cannot re-perform such deficient Services as warranted, Customer shall be entitled to recover a pro-rata portion of the fees paid to Whil for such deficient Services, and such refund shall be Whil's entire liability.

8.3. Maintenance. The Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, or because of other causes beyond Whil's reasonable control, but Whil shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled unavailability of the Services.

8.4. DISCLAIMER. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN, WHIL AND ITS THIRD PARTY PROVIDERS HEREBY DISCLAIM ALL EXPRESS OR IMPLIED WARRANTIES WITH REGARD TO THE SERVICES, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT AND QUALITY. WHIL AND ITS THIRD PARTY PROVIDERS MAKE NO REPRESENTATIONS OR WARRANTIES REGARDING THE RELIABILITY, AVAILABILITY, TIMELINESS, SUITABILITY, ACCURACY OR COMPLETENESS OF THE SERVICES OR THE RESULTS CUSTOMER MAY OBTAIN BY USING THE SERVICES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WHIL AND ITS THIRD PARTY PROVIDERS DO NOT REPRESENT OR WARRANT THAT (A) THE OPERATION OR USE OF THE SERVICES WILL BE TIMELY, UNINTERRUPTED OR ERROR-FREE; OR (B) THE QUALITY OF THE, SERVICES WILL MEET CUSTOMER'S REQUIREMENTS. CUSTOMER ACKNOWLEDGES THAT NEITHER WHIL NOR ITS THIRD PARTY PROVIDERS CONTROLS THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. WHIL IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. EXCEPT WHERE EXPRESSLY PROVIDED OTHERWISE BY WHIL, THE SERVICES ARE PROVIDED TO CUSTOMER ON AN "AS IS" BASIS.

9. Mutual Indemnification

9.1. Indemnification by Whil. Whil shall indemnify and hold harmless Customer and its officers, directors, employees and agents from and against all claims, damages, losses and expenses (including reasonable attorneys' fees) arising out of any claim by a third party to the extent such claim alleges that the use of the Services by Customer and its Authorized Users in accordance with its intended purpose or any material created, prepared, or developed by Whil and delivered through the Services infringes any patent, copyright, trademark, service mark or trade secret rights. If Whil believes the Services are or may become the subject of a claim of infringement, Whil may, at its option and expense, procure for itself and/or Customer and its Authorized Users the right to continue to use the Services, or modify or replace the Services to make the Services non-infringing and functionally equivalent. If Whil concludes that neither of these alternatives is reasonably available, it may terminate this Agreement upon thirty (30) days written notice and refund any pre-paid fees covering the remainder of the term of this Agreement after such termination.

9.2. Indemnification by Customer. Customer shall indemnify and hold harmless Whil and its officers, directors, employees and agents from and against all claims, damages, losses and expenses (including reasonable attorneys' fees), arising out of any claim by a third party to the extent such claim is based on the Customer Content (including but not limited to use of the Customer Content as permitted hereunder) or on Customer's use of the Services other than in accordance with this Agreement.

9.3. Procedures. The party seeking indemnification shall provide detailed written notice to the indemnifying party promptly after learning of the claim, and the indemnifying party shall not be obligated to indemnify to the extent it is materially prejudiced by any delay in such notice. The indemnifying party shall have the right to assume control of the defense and settlement of the claim, and the indemnified party shall provide reasonable assistance at the indemnifying party's reasonable expense, provided that the indemnified party shall not be obligated to participate in any settlement pursuant to which the indemnified party is required to admit liability or pay any amount other than amounts concurrently reimbursed by the indemnifying party.

10. Limitation of Liability.

NEITHER PARTY SHALL BE LIABLE UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE, INACCURACY OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICE OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND IT'S REASONABLE CONTROL, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE LESSER OF $500,000 OR THE FEES PAID BY CUSTOMER IN THE PRECEDING 12 MONTHS. THE FOREGOING LIMITATIONS SHALL NOT APPLY TO CUSTOMER'S PAYMENT OBLIGATIONS UNDER SECTIONS 3 OR 4.

11. General

11.1. Independent Contractor. Nothing in this Agreement shall create a joint venture, partnership, employment or agency relationship between Customer and Whil or Whil's employees or contractors. Neither party is authorized by this Agreement to represent, bind, obligate or contract on behalf of the other.

11.2. Notices. Whil may give notice applicable to Whil's general Services customer base by means of a general notice on the Services portal, and notices specific to Customer by electronic mail to Customer's e-mail address on record in Whil's account information or by written communication sent by first class mail or pre-paid post to Customer's address on record in Whil's account information. If Customer has a dispute with Whil, wishes to provide a notice under the Agreement, or becomes subject to insolvency or other similar legal proceedings, Customer shall promptly send written notice to Whil Concepts, Inc. (attention: Customer Success Team) at 1656 California Avenue, San Francisco CA 94109, U.S.A. Either party may change its notice address by notice in accordance with this paragraph.

11.3. Force Majeure. Neither party shall be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions (including the denial or cancellation of any export or other license); or other event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event. If such event continues for more than 30 days, either party may cancel unperformed Services upon written notice. This section does not excuse either party of its obligations to take reasonable steps to follow its normal disaster recovery procedures or Customer's obligation to pay for the Services provided.

11.4. Entire Agreement; Amendment; Waiver. With respect to its subject matter, this Agreement and the Order Form(s) represents the parties' entire agreement and supersedes all prior agreements, understandings and representations, written or oral, between the parties. This Agreement may be executed and delivered in two or more counterparts or with electronic or facsimile signatures, and may not be amended except by a writing signed by the party to be bound. The failure of a party to require performance of any provision of this Agreement shall in no manner affect its right to enforce the provision. If any provision of the Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect.

11.5. Injunctive Relief. Either party may seek to enforce its rights hereunder with respect to the protection of its confidential information or intellectual property through temporary or permanent injunctive relief, which shall be in addition to any other available relief and which shall not require a bond or security.

11.6. Severability. Any provision of this Agreement which is held invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective only to the extent of such invalidity or unenforceability and without rendering invalid or unenforceable the remainder of this Agreement or affecting the validity or enforceability of any of the provisions of this Agreement in any other jurisdiction, and the court or tribunal so holding shall be empowered to substitute, to the extent enforceable, provisions similar to said provision, or other provisions, so as to provide to the parties the benefits intended by said provision to the fullest extent permitted by applicable law.

11.7. Assignment; No Third Party Beneficiaries. Except as expressly stated otherwise herein, neither party may assign or transfer (including by operation of law) any rights or obligations under this Agreement without the written consent of the other party, except that either party may, without such consent, assign or transfer this Agreement to a successor to the business of such party by merger, sale of assets or otherwise. Any assignment or transfer, or attempted assignment or transfer, in violation of this Agreement is void ab initio. This Agreement is not intended to confer any rights or remedies upon anyone other than the parties hereto.

11.8. Governing Law; Jurisdiction. This Agreement shall be construed in accordance with California law, without regard to that state's conflict of law principles. Any proceeding relating to this Agreement or the subject matter hereof shall be brought only in federal or state courts located in San Francisco, California and each party hereby generally and unconditionally submits to and accepts the jurisdiction of such courts. The Uniform Computer Information Transactions Act will not apply to the Agreement. In any action or proceeding to enforce rights under the Agreement, the prevailing party will be entitled to recover costs and attorney's fees. The failure of either party to enforce any right or provision in the Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by such party in writing. Except for actions for nonpayment or breach of either party's proprietary rights, no action, regardless of form, arising out of or relating to the Agreement may be brought by either party more than two years after the cause of action has accrued.