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Terms of Service

Last Updated: December 7, 2020

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Client Terms of Service

Revised as of September 1, 2023

IMMEDIATELY BELOW ARE THE CLIENT TERMS OF SERVICE APPLICABLE TO EMPLOYERS OFFERING THE WONDR HEALTH PROGRAM TO THEIR EMPLOYEES. IF YOU ARE A PARTICIPANT, CLICK HERE [RR1] FOR THE PARTICIPANT TERMS OF USE APPLICABLE TO USERS ENROLLED IN THE WONDR HEALTH PROGRAM.

Wondr Health

Client Terms of Service

  1. Right of Client to Use Wondr Health Information. 
  1. Subject to Client’s strict compliance with all terms, conditions, and restrictions of these Terms of Service (“Terms”), Wondr Health hereby grants to Client:
  1. a non-exclusive, non-transferable right to use the eM Life program (“Program”) set forth on that certain Letter of Understanding by and between Wondr Health and Client (“LOU”), including (A) certain video presentations, student manuals, food sheets, instructor manuals, website content, reports, emails and other materials developed by Wondr Health for the Program (the “Curriculum”); (B) a website established and maintained by Wondr Health that permits Participants to access, display, perform and use the Program’s web-based services (the “Program Website”); and (C) all iOS and Android applications of Wondr Health that permit Participants to access, display, perform and use the Program (the “Program App”, and collectively, with the Program, Curriculum, and Program Website, the “Wondr Health Information”) to promote, advertise, market, identify and describe the Program to the Program Participants set forth in the LOU (the “Participants”), subject to those standards of quality and appearance relating to the Wondr Health Information and the Wondr Health trademarks and may be amended from time to time (“Standards”); and
  1. a non-exclusive, non-transferable right to grant Participants the right to access and use the Program for the intended purpose of the Program.

Participants shall not make copies of the Curriculum available to non-Participants at any time or for any purpose.

Except for Client’s use of the Wondr Health Information as expressly authorized in these Terms or as otherwise expressly authorized in writing by Wondr Health, Client has no right or license to use or license the use of any of Wondr Health’s names, trademarks, service marks, logos, emblems and other indicia of origin for any purpose whatsoever. Client agrees to permit Wondr Health to reference Client’s name and logo for legitimate business purposes including, but not limited to, on Wondr Health website and within collateral materials.  Client agrees to consider reasonable requests for (a) serving as a reference, (b) collaborating on press releases regarding services, and (c) collaborating on case studies or other marketing collateral showcasing the outcomes of agreed upon services.

a.         Client shall promptly furnish the information needed by Wondr Health to perform its functions under these Terms, including necessary information in connection with determining the eligibility of individuals to participate in the Program and benefit from the Services. Wondr Health shall refer to Client for determination and consideration of any question of eligibility of an individual for coverage under the Program.

b.         Client is solely responsible for determining whether the Program is offered to Participants as part of an employee welfare benefit plan, as defined under the Employee Retirement Income Security Act of 1974 (“ERISA”), and whether the Program is otherwise offered as part of a health plan, as defined under the Health Insurance Portability and Accountability Act (“HIPAA”). Wondr Health relies on such representation and determination by Client for purposes of determining Wondr Health’s HIPAA compliance with respect to Client.

  1. Wondr Health is solely responsible for presenting and implementing the Program in such manner as it deems appropriate, subject to mutually accepted guidelines, to ensure satisfactory delivery. Wondr Health will not be responsible for any delay in presenting or implementing the Program that results from Client’s delay or failure in providing necessary information to Wondr Health or otherwise performing under this Agreement. In addition to the Curriculum, and except as otherwise expressly agreed herein, Wondr Health will present the Program by video presentation of lecture material by professionally produced video accessed by Participants directly via the Program Website and/or Program App.
  1. Wondr Health will submit an invoice to Client (or to its insurance carrier or designated payor, as directed by Client) in accordance with the pricing terms set forth in the LOU. Notwithstanding any payment direction provided by Client to Wondr Health, Client shall ultimately be responsible for the payment of all Program Fees due under the LOU and in the event payment is denied or refused by Client’s insurance carrier (or other designated payor), Client shall be liable for payment of all Program Fees owed to Wondr Health under the LOU and will promptly remit all such amounts to Wondr Health within thirty (30) days of the date of Wondr Health’s invoice to Client.  Wondr Health may annually modify the Program Fees upon sixty (60) days’ notice to Client prior to each anniversary of the effective date of the LOU.
  1. Term.  The term of the LOU shall commence on the effective date of the LOU and end on December 31 of the year that is two years following such effective date(“Initial Term”), and thereafter, shall automatically renew for successive twelve (12) month periods (each a “Renewal Term” and together with the Initial Term, the “Term”) unless either party provides written notice of its intent not to renew such LOU at least thirty (30) days prior to the commencement of the next Renewal Term.

The Parties acknowledge that in connection with the LOU and these Terms either Party may provide, and the other Party may acquire and make use of, certain Confidential Information of the disclosing Party.

  1. Confidential Information. Confidential Information shall include any non-public proprietary information (whether oral, written, electronic or otherwise) disclosed by a Party (“Disclosing Party”) to other Party (“Receiving Party”) including, without limitation, all financial information, personnel information, customer information and business, product, marketing, operating and strategic information, software, data, prototypes, algorithms, reporting tools, heat mapping clinical risk score and its constituent elements, technology, patentable and unpatentable discoveries, know-how, ideas, concepts, logos, trademarks, drawings or renderings, and any other strategies pertaining to Disclosing Party.  Confidential Information shall not include information that, as demonstrated by competent evidence, (i) was in Receiving Party’s possession, or was generally known to the public, prior to the disclosure of such information to Receiving Party; or (ii) becomes generally known to the public through no fault of Receiving Party; or (iii) becomes known by Receiving Party from a third party who is not in any breach of any known confidentiality obligations to Disclosing Party with respect to the disclosed information; or (iv) was or is independently developed by Receiving Party without reference to the disclosed information. 

Client understands and agrees that, while certain aspects of the Program may facilitate Participants’ receipt of healthcare services from independently contracted healthcare providers, Wondr Health’s presentation of the Wondr Health Information is not the provision of medical care or advice to Client, Client’s officers, directors, employees or Participants of the Program.  The Wondr Health Information are informational in scope and are not a substitute for the sound independent medical judgment of a physician or any other health care provider.  Client, Client’s officers, directors, employees or Participants of the Program and recipients of the Curriculum or any other Wondr Health Information are instructed to consult with a physician or health care provider if Client, or any of the other individuals identified in this Section, have any questions or concerns regarding a medical condition.

  1. Indemnification for Third-Party Claims.
  1. Wondr Health will indemnify, defend and hold harmless Client and its officers, directors, fiduciaries, employees, agents, successors and assigns from any direct loss, damage or cost (including reasonable attorneys’ fees) arising out of any third-party allegations, claims or lawsuits alleging that the Program infringes any copyright, trademark, patent, or incorporates any misappropriated trade secret (a “Claim”).  Wondr Health shall have the right, at its sole discretion, to negotiate a commercially reasonable settlement of any such Claim and may, at its option, (i) obtain the right from third parties to continue using the Program; (ii) replace or modify the Program so that it becomes non-infringing without substantially compromising its capabilities or functionalities; or (iii) terminate the LOU and these Terms and refund any pro rata portion of prepaid fees based upon the percentage of the term that has transpired. However, Wondr Health has no obligation to indemnify Client to the extent any Claim arises in connection with: (1) any use of the Wondr Health Information or Services in combination with software, products or services not provided by Wondr Health to the extent that the Wondr Health Information or Services would not be infringing but for such combination or modification; (2) Client’s failure to use the Wondr Health Information or Services in accordance with these Terms; or (3) for any claims related to Client Data. THIS SECTION STATES THE ENTIRE LIABILITY OF WONDR HELATH, AND THE EXCLUSIVE REMEDY OF CLIENT, WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS BY WONDR HEALTH OR ANY WONDR HEALTH INFORMATION.
  1. Limitation of Liability.

TO THE MAXIMUM EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCE SHALL WONDR HEALTH, NOR ANY OF ITS SUBSIDIARIES, AFFILIATES, AGENTS, OR EMPLOYEES, BE LIABLE FOR ANY LOSS OF USE, REVENUE, OR PROFIT OR LOSS OF DATA OR DIMINUTION OF VALUE, OR FOR ANY INCIDENTAL, CONSEQUENTIAL, NON-DIRECT, EXEMPLARY, PUNITIVE, OR OTHER SPECIAL CATEGORY OF DAMAGES ARISING IN ANY WAY OUT OF THESE TERMS OR THE LOU, HOWEVER CAUSED, WHETHER ARISING UNDER A THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE OR OTHERWISE), INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, OR LOSS OF DATA, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT WONDR HEALTH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.  TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL WONDR HEALTH’S NOR ANY OF ITS SUBSIDIARIES’, AFFILIATES’, AGENTS’ OR EMPLOYEES LIABILITY FOR DAMAGES ARISING OUT OF OR RELATING TO THESE TERMS (INCLUDING ANY APPLICABLE BAA) OR THE LOU, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE FEES PAID BY CLIENT TO WONDR HEALTH FOR THE SPECIFIC SERVICE OR PROGRAM GIVING RISE TO THE ACTION IN THE TWELVE (12) MONTHS PRIOR TO THE DATE THE CAUSE OF ACTION FIRST AROSE. THE LIMITATIONS ON LIABILITY SET FORTH HEREIN SHALL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY OF THE LIMITED REMEDIES SET FORTH ABOVE.

  1. Disclaimer.

EXCEPT AS SPECIFICALLY SET FORTH IN THESE TERMS, WONDR HEALTH SPECIFICALLY DISCLAIMS ALL WARRANTIES OF ANY KIND, ARISING OUT OF OR RELATED TO THESE TERMS OR THE LOU, INCLUDING WITHOUT LIMITATION, (i) ANY WARRANTY THAT THE SERVICES OR PROGRAM PROVIDED HEREUNDER ARE FREE OF ERRORS, OR WILL OPERATE WITHOUT INTERRUPTION OR THAT ALL ERRORS WILL BE CORRECTED, (ii) ANY WARRANTIES WITH RESPECT TO THE ACCURACY OR COMPLETENESS OF THE SERVICES OR PROGRAM PROVIDED HEREUNDER, (iii) ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND FREEDOM FROM ERRORS, VIRUSES OR ANY OTHER MALICIOUS CODE.  CLIENT acknowledges that use of or connection to the Internet provides the opportunity for unauthorized third parties to circumvent security precautions and illegally gain access to the Services, PROGRAM AND PARTICIPANT DATA.  Accordingly, WONDR HEALTH cannot and does not guarantEE the privacy, security or authenticity of any information so transmitted over or stored in any system to the Internet.

  1. Remedies. 

Client recognizes that the breach or threatened breach of its obligations under these Terms would likely cause irreparable and continuing injury to the Wondr Health.  Accordingly, Client understands and agrees that any breach or threatened breach by Client of these Terms will cause the Wondr Health irreparable injury and damage for which money damages may not be adequate.  In addition to all other remedies that are available to it, the Wondr Health shall be entitled to preliminary and permanent injunctive relief or other equitable relief without posting a bond to prevent or remedy such a breach by Client.

  1. Independent Contractors. 

The Parties shall perform activities under these Terms only as independent contractors and nothing contained herein shall be construed to be inconsistent with this relationship or status. None of the provisions of these Terms is intended to create or shall be deemed or construed to create any relationship between Wondr Health, Client or any third party provider, other than that of independent entities contracting with each other solely for the purpose of effecting the provisions of these Terms.  None of Wondr Health, Client or any third party provider, nor any of their respective agents, employees, or representatives shall be construed to be the agent, employee, or representative of the other.

  1. Notices.

Notices will be deemed given either (a) upon delivery if delivered in person; (b) by e-mail upon confirmation of receipt (with “read receipts” not constituting such confirmation of receipt); (c) sent by courier or other messenger upon confirmation of delivery by such courier or messenger service; or (d) sent by a type of first-class mail, postage prepaid, upon a signed receipt of confirm delivery. Any notice or request to Client shall be delivered to the address set forth in the LOU. Any notice or request to Wondr Health shall be addressed as follows:

Wondr Health:                        NS412, LLC

12790 Merit Drive

Suite 700

Dallas, TX 75251

Attn: Contracts Manager

Email: notices@wondrhealth.com

  1. Assignment.

Client may not assign, transfer or otherwise convey these Terms or any rights granted hereunder except with the written consent of the Wondr Health.  Subject to such restrictions, these Terms shall be binding upon, and inure to the benefit of, the successors in interest and permitted assignees of the Parties.

  1. Arbitration.

The Parties agree to resolve all disputes arising under or in connection with this Agreement through binding arbitration. A Party who intends to seek arbitration must first send a written notice of the dispute to the other party. The Parties will use good faith efforts to resolve the dispute directly, but if the parties do not reach an agreement to do so within 30 days after the notice is received, either party may commence an arbitration proceeding. The arbitration will be conducted in accordance with the applicable rules of the American Arbitration Association (“AAA”). The arbitration will be conducted in English in the state of Texas. If the Parties do not agree on an arbitrator, the arbitrator will be selected in accordance with the applicable rules of the AAA for the appointment of an arbitrator. The selection of an arbitrator under the rules of the AAA will be final and binding on the parties. The arbitrator must be independent of the Parties. The arbitrator’s decision will be final and binding on both Parties, and the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The costs and expenses of the arbitration will be shared equally by both Parties; however, if the arbitrator finds that either the substance of the claim or the relief sought in arbitration is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. Notwithstanding the foregoing, this section will not prohibit either Party from: (i) bringing an individual action in small claims court; (ii) seeking injunctive or other equitable relief in a court of competent jurisdiction; (iii) pursuing an enforcement action through the applicable federal, state, or local agency if that action is available; or (iv) filing suit in a court of law to address an intellectual property infringement or misappropriation claim. If this section is found to be unenforceable, the parties agree that the exclusive jurisdiction and venue described in Section 18 will govern any action arising out of or related to these Terms.

  1. Miscellaneous.

No provisions of these Terms will be waived by any Party except in writing and no waiver by any Party of a breach shall be construed as a waiver of any subsequent breach by the same Party. If any provision of these Terms is held invalid or unenforceable, the remaining provisions and applications of these Terms shall remain valid and enforceable. These Terms may be amended or modified only by a written amendment duly signed by each of the Parties. These Terms shall be construed with the substantive laws of the State of Texas, without giving effect to any conflict of laws principles that would cause the laws of any other jurisdiction to apply. Any controversy or claim arising out of or relating to these Terms, or any breach hereof, must be brought in the appropriate state or federal courts located in Dallas County, Texas. The Parties hereby irrevocably submit to the exclusive jurisdiction of these courts and waive the defense of inconvenient forum to the maintenance of any action or proceeding in such venue. SUBJECT TO SECTION 17, EACH PARTY HEREBY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THESE TERMS IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING HERETO. These Terms, together with the LOU and any Business Associate Agreement executed herewith, constitute the complete and exclusive statement of the agreement of the Parties with respect to the subject matter hereof, and supersedes all prior written and oral statements with respect to the subject matter hereof. If any term or provision of these Terms is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of these Terms or invalidate or render unenforceable such term or provision in any other jurisdiction. The Parties agree that these Terms shall be construed as drafted by both of them, as parties of equivalent bargaining power, and not for or against either of them as the drafter. These Terms may be executed in any number of counterparts (including by facsimile, pdf or other electronic means) each of which shall be deemed an original and which together shall constitute one agreement.

Appendix 1 – Business Associate Addendum

The purpose of this Business Associate Addendum (“BAA”) is to help facilitate your compliance with the requirements of HIPAA and our compliance with HIPAA to the extent you disclose Protected Health Information (as defined below) to us in connection with Client’s use of the Wondr Health Information.

This BAA applies to the extent Client is acting as a Covered Entity or a Business Associate and, as a result, Wondr Health is deemed under HIPAA to be acting as Client’s Business Associate or Subcontractor. To the extent of any conflict or inconsistency between this BAA and the Terms, this BAA will govern with respect to Protected Health Information. Client may be referred to herein as “you”, and Wondr Health may be referred to herein as “we”, “us”, or “our”.

    1. . Except as otherwise stated in this BAA, we may use and disclose PHI only (a) as permitted or required by the Terms or this BAA, or (b) as Required by Law, and we will not otherwise use or disclose PHI. Except as set forth in Sections 2.2, 2.3, and 2.5 of this BAA, we will not use or disclose PHI in any manner that would constitute a violation of HIPAA if so used or disclosed by you.
    1. . We may use PHI for our proper management and administration and to carry out our legal responsibilities.
    1. . We may disclose PHI to a third party for our proper management and administration, provided that the disclosure is Required by Law or we obtain reasonable assurances from the third party to whom PHI will be disclosed that (a) it will be held confidentially, (b) used or further disclosed only for the purpose for which it was disclosed to the third party, and (c) the third party will notify us of any instances of which it is aware in which the confidentiality of the PHI has been breached.
    1. . We may use PHI to report violations of law to appropriate federal and state authorities, consistent with 45 C.F.R. 164.502(j)(1).
DM_US 197543301-7.108751.0012  

 [RR1]Insert link to Participants Terms of Service