Heads Up Health Terms and Conditions
B2B Heads Up Terms and Conditions
These Terms and Conditions (“Terms”), along with any Order Forms, SOWs, or documents incorporated by reference (collectively, the “Agreement”) are entered into between Customer (as defined below) and Phase2body, Inc., DBA Heads Up Health (“Heads Up”), and is made effective the date Customer consents to these Terms electronically or signs an Order Form incorporating these Terms, whichever occurs earlier (“Effective Date”). The Agreement governs Customer’s use of the Heads Up Services. Both Customer and Heads Up may be referred to as “Party” or collectively, the “Parties”.
1. Definitions.
“Affiliate” means any person or entity that controls, is controlled by, or is under common control with Heads Up or Customer, as applicable, where “control” means ownership of 50% or more of the outstanding equity interests, or the ability to appoint the officers or directors of, another entity.
“Agent” means a combination of one or more Models with available data source(s) (Inputs, APIs, and/or any other data or technology in or submitted to the Software) to automate a machine learning system.
“Agent Execution” means an Input submitted to an Agent that generates an Output.
“Heads Up Services” means all services provided by Heads Up to Customer, including Software, Documentation, Support Services, Professional Services, development tools, and any other services listed on an Order Form, SOW, or otherwise provided by Heads Up.
“API” means any integration, connector, or application programming interface allowing the exchange of data between the Software and Customer’s systems or Third-Party Services.
“BYOK” means any Customer provided API key (‘bring your own key’) for a Third-Party Services provider as allowed in the Documentation.
“Confidential Information” means any information marked or designated as confidential by a Party and any information that, under the circumstances of its disclosure or nature of the information, should reasonably be considered to be confidential, such as Customer Data, Documentation, pricing, software code, functionality, systems, and roadmaps, and any non-public technical, business, security, or financial information. Confidential Information may include a Party’s affiliate’s or Third-Party Service provider’s information.
“Customer” means: (i) in the case of an entity, the entity listed on an Order Form, or the entity being represented by its authorized personnel who accessed the Heads Up Services; or (ii) in the case of a person using the Heads Up Services for their personal use, the person listed on the Order Form or that has accessed the Heads Up Services.
“Customer Data” means all Input, Output, data, Patient-Generated Health Data, information, or content, including but not limited to personal information or protected health information as defined under the Health Insurance Portability and Accountability Act of 1996, as amended, submitted by or on behalf of Customer (including from a Participating Patient, User, or Guest and any data submitted via an Agent or Model) into the Software or otherwise provided to Heads Up. Usage Data is not Customer Data.
“Documentation” means any user guide and technical documentation relating to the Heads Up Services that may be provided by Heads Up from time to time.
“DPA” means the Data Processing Addendum (currently found here), as may be amended by Heads Up from time to time.
“Guest” means any third party associated with Customer that uses an Agent via Customer’s account. Guests do not include Users.
“Model” means an artificial intelligence model made available by Heads Up or Customer (BYOK) in the Software, as allowed under the Documentation.
“Order Form” means: (i) the signed ordering document between the Parties; or (ii) the selected Heads Up Services and billing cycle electronically accessed by Customer.
“Participating Patients” means those patients of Customer’s practice that are enrolled in the Software and that have agreed to the Heads Up Patient Terms of Use under Customer’s account.
“Participating Provider” means those practitioners, providers and staff of Customer’s practice that are enrolled in the Software and that have agreed to the Heads Up Provider Terms of Use under Customer’s account.
“Patient-Generated Health Data” means health-related data created, recorded, or gathered by or from Customer’s patients (or family members or other caregivers) to help address a health concern.
“Patient Mobile App” means the mobile software application that receives Patient-Generated Health Data and relays it to Heads Up servers for storage/processing and displays a portion of the data collected to Participating Patients.
“Professional Services” means any configuration, implementation, conversion of data, or other services relating to the Software that are provided by or on behalf of Heads Up as referenced on an Order Form or SOW.
“Provider-Facing Dashboard” means a web-based software platform from the Software that allows healthcare providers to view, track, and analyze their Participating Patients’ health data.
“Software” means the Heads Up software platform (including but not limited to APIs, Agents, Models, web and mobile applications, prompt libraries, AI Services, environment, Patient Mobile App, Provider-Facing Dashboard and Updates) listed on an Order Form, including the quantifiable limitations of Users, Participating Patients, devices, and sites.
“SOW” means a mutually agreed upon statement of work detailing the in-scope Professional Services.
“Support Services” means any applicable Heads Up support services listed on an Order Form as further detailed in any overview or documentation that may be provided by or on behalf of Heads Up from time to time.
“Subscription Term” means the term length listed on an Order Form.
“Third-Party Services” means a third-party’s products, services, websites, or materials that are used by Customer or its Users in or with the Software.
“Updates” means any addition or modification of functionality, features, patches, and fixes applied to the Software by Heads Up.
“Usage Data” means analytical data, including metadata, Customer Data, data relating to Customer’s use and configuration of the Software, its features, functionality, and performance that has been stripped of identifiable elements in accordance with applicable law so as to render such data de-identified so that it cannot be traced back to Customer, a User, Guest, or any individual.
“User” means the authorized Customer’s and Customer’s Affiliates’ employees, staff, physicians, contractors, and agents that have a user account under Customer’s account.
2. Overview of Heads Up Services.
2.1. Overview. The Heads Up Services provide a platform that allows Customer to gain intelligent insight to healthcare-related data, subject to the Agreement.
2.2. Customer Accounts and Responsibilities. Customer is required to provide accurate and up to date names and emails of individuals using the Heads Up Services to create User account(s). Only the assigned person may access their User account. Customer is responsible for: (i) the security and confidentiality of its User accounts and will immediately notify Heads Up of any unauthorized access; and (ii) all activity under its account (including from its Affiliates, all Users, Guests, and Participating Patients) and Customer Data. Heads Up shall not be liable for any prohibited use of Heads Up Services by Customer or its Users, Guests, or Participating Patients.
2.3. Changes and Monitoring. Heads Up may provide Updates from time to time. If Customer is on a monthly Subscription Term, Heads Up may amend this Agreement at any time, with or without notice. By accessing the Heads Up Services after a change is made to the Agreement, Customer agrees to the changes. Heads Up may monitor Customer’s use of Heads Up Services to ensure its compliance with this Agreement.
2.4. AI Services. Heads Up may provide AI Components, pre-configured Agents, and Models in certain Software modules (“AI Services”). If such a Software module is listed on an Order Form, this Section 2.4 shall apply.
a. Customer and its Users may use Agents and Models (and may allow Guests to interact with Agents and Models) made available by Heads Up pursuant to the Agreement, Documentation, and Acceptable Use Policy. If a Model or Agent is experiencing downtime or the Model’s or Agent’s API is temporarily overloaded, Heads Up reserves the right to replace the Model or Agent in use with a similar functioning Model or time-out Customer’s use of a Model or Agent if excessive use occurs.
b. Heads Up will not use Customer Data to train any Models or Agents.
c. Customer agrees to not exceed the Agent Execution and document ingestion limits described in the Documentation.
3. Access and Restrictions to Heads Up Services.
3.1. Grant. Subject to Customer’s compliance with the Agreement, Heads Up grants Customer a limited, non-exclusive, non-transferrable, non-sublicensable, and revocable right to use the Software listed on an Order Form solely for Customer’s or its Affiliates business purposes in accordance with the Documentation. Customer is prohibited from using the Software for any purpose that is not expressly permitted under this Agreement.
3.2. Restrictions. Customer agrees not to, and will not permit others to: (i) copy, modify, create derivative works of, reverse engineer, decompile, disassemble, web scrape, or otherwise attempt to discover the source code or intellectual property underlying the Heads Up Services; (ii) infringe, misappropriate, or otherwise violate Heads Up’s or any third party’s intellectual property rights or remove or alter any proprietary notices (e.g., copyrights) within the Heads Up Services; (iii) use the Heads Up Services in violation of the Agreement, Documentation, or any applicable laws or regulations, including data privacy or export control laws; (iv) knowingly transmit viruses, malware, or other harmful code to the Heads Up Services; (v) scan, probe, or test the security or vulnerability of the Heads Up Services without prior written consent from Heads Up or publicly distribute internal benchmarking relating to the Heads Up Services; (vi) use the Heads Up Services to develop or support a competing product or service; and (vii) reproduce, resell, market, or otherwise commercially distribute the Heads Up Services or provide Guests or an unauthorized third party direct access to the Software.
4. Healthcare Use.
4.1. Uses. Customer may use the Services for health and wellness related purposes, however, the Software is not intended to provide medical advice, diagnosis, or treatment.
4.2. No Certification. Heads Up and the Software do not operate under any licensing authority. Any information, Output, or other materials provided by or generated from Heads Up Services are not intended to be and should not be considered diagnostic or medical advice, or as providing any health or medical-related recommendation.
4.3. Seek Professional Advice. Heads Up encourages Customer to always obtain health and medical advice from a qualified healthcare professional for any health condition (whether physical or mental), including obtaining professional medical advice for information, Output, or materials provided by or generated from the Heads Up Services and reviewing the same before it is relied upon or used. Never disregard a healthcare professional’s advice, delay seeking or obtaining medical advice, or cancel an appointment with a patient or medical professional, as applicable, because of information or materials provided by the Heads Up Services.
4.4. MEDICAL EMERGENCY. In case of a medical emergency, immediately call a doctor or emergency services.
4.5. BAA. If Customer is located or conducts business in the United States or is otherwise subject to HIPAA, the Parties agree the Business Associate Agreement, applies to the Agreement and is deemed accepted and signed by accepting the Agreement. Customer is the Covered Entity and Heads Up is the Business Associate.
5. Professional and Support Services.
5.1. Warranty. Heads Up will provide the Professional Services and Support Services listed in an Order Form or SOW: (i) in a professional and workmanlike manner; and (ii) pursuant to the corresponding SOW or Support Services attached as Exhibit A, as applicable.
5.2. Assumptions and Customer Obligations. Customer agrees that: (i) any proposed timelines for completion of work listed in an SOW or Support Services are estimates; (ii) it must cooperate with Heads Up and provide reasonable access to its personnel, equipment, systems, and materials during normal business hours to enable the Professional or Support Services; (iii) it is ultimately responsible for all implementation, User training, data conversion, testing, configuration, workflow decisions, and other necessary services for using the Heads Up Services; (iv) any change in scope in an SOW or out of scope work requested by Customer must be mutually agreed upon in writing; and (v) if applicable, all travel-related expenses will be pre-approved by Customer, provided Customer will fully reimburse Heads Up for approved expenses. Any Professional Services that are requested by Customer to be changed in an SOW or are outside the scope of an SOW will be mutually agreed upon via a change order (“Change Order”).
6. Service Level Agreement.
Heads Up shall use commercially reasonable efforts to maintain the Software so that it’s available for access by Customer in accordance with the service levels set forth in Exhibit B, Service Level Agreement.
7. Applicable Law and Compliance.
Each Party agrees to comply with their respective obligations under applicable law. Nothing provided by Heads Up (including Output) shall be taken as professional advice (e.g., medical, legal, etc.).
8. Term.
The Agreement commences on the Effective Date and will continue for the Subscription Term listed on an Order Form. If no Subscription Term is listed, the default term will be month-to-month. The Agreement will automatically renew for the same time period as the expiring Subscription Term on Heads Up’s then-current pricing. Customer may opt-out of automatically renewing: (i) if on a month-to-month term, by cancelling the Heads Up Services via the Software at any time; or (ii) if on a fixed Subscription Term, by providing Heads Up with at least 30 days’ prior written notice from the end of the current Subscription Term (email is sufficient).
9. Termination.
Either Party shall have the right to terminate the Agreement if the other Party commits a material breach of the Agreement and fails to cure the breach within 30 days after notice of the breach was given. Upon termination or expiration of this Agreement, all rights granted by Heads Up will expire and Customer will destroy Heads Up’s Confidential Information within 30 days. Heads Up may securely destroy Customer Data within 30 days after expiration or termination of the Agreement. Otherwise, Heads Up will securely destroy Customer Data promptly after receiving a written request from Customer. Any outstanding Customer payment obligations will survive termination of the Agreement.
10. Suspension.
Heads Up may suspend Customer’s access to the Heads Up Services in whole or in part without incurring any liability upon Customer’s material breach of this Agreement or if the Minimum Balance is reached pursuant to the Payment for Heads Up Services Section.
11. Data Privacy.
Heads Up’s Privacy Policies is incorporated herein by reference. To the extent Customer Data contains personal information, the DPA shall apply and is incorporated herein by reference.
12. Payment for Heads Up Services.
12.1. Fees.
a. General Fees. All Software, Support Services, Professional Services, and third-party product fees listed on an Order Form will be due and payable as stated in the Order Form or SOW. Heads Up accepts electronic payments (ACH, wire, or Payment Services). If payment terms are not listed on the Order Form, the payment terms will be: (i) for month-to-month Subscription Terms, fees are due immediately and on a reoccurring monthly basis; and (ii) for fixed Subscription Terms, fees are due annually in advance within 30 days of receiving an invoice.
b. On-Going Fees. If Customer purchases AI Services where consumption fees are charged, such as fees that are not be listed on an Order Form (e.g., Model tokens, Third-Party Services, consumption-based fees) (“On-Going Fees”), these On-Going Fees are Customer’s responsibility and subject to the Third-Party Payment Services Section below. All On-Going Fees, if applicable, will be paid via the Payment Services. For the avoidance of doubt, On-Going Fees will only be charged if the applicable AI Services contemplate such charges during Customer’s procurement of the Software (and not mid-Subscription Term).
12.2. Final Payment. All fees are non-cancelable and non-refundable except as otherwise stated in the Agreement. All fees paid and expenses reimbursed under this Agreement will be paid in the currency listed on the Order Form.
12.3. Changes. If Customer is on a monthly Subscription Term, Heads Up reserves the right to modify the pricing and payment terms at any time by providing notice to Customer. Any changes made will go into effect the next month. Any Third-party product or Third-Party Services fees are subject to change or increase upon notice to Customer.
12.4. Third-Party Payment Services. The Software uses a Third-Party Service provider for payment processing (“Payment Services”) of On-Going Fees and, where applicable, Heads Up Services fees. By using Heads Up Services, Customer accepts all applicable Payment Services’ terms and authorizations for credit card and bank account charges. Heads Up is not liable for any monetary transactions occurring through Customer’s use of the Heads Up Services or for issues relating to the Payment Services. Customer authorizes Heads Up to charge Customer’s Payment Services account for all On-Going Fees, and for any Payment Services processing fee allowed under applicable law, without any further notice or consent. Customer acknowledges that to the extent On-Going Fees are displayed in the Heads Up Services, such fees are estimates, and Customer is responsible for confirming the correct amounts with the Third-Party Services provider and for paying the actual amount owed.
12.5. Taxes. All fees listed on an Order Form are exclusive of taxes. Heads Up will charge Customer taxes listed on an invoice as required by applicable law in connection with the Aria Services.
13. Right to Inspection.
Upon Heads Up providing Customer with at least 15 days’ notice, Heads Up may examine Customer’s books, records and accounts solely as they relate to this Agreement, during Customer’s normal business hours and not more than once per year, solely to verify Customer’s compliance with this Agreement. If any audit reveals that Customer has failed properly to account for and pay any amounts due and payable to Heads Up hereunder (an “Underpayment”), and the amount of any such Underpayment exceeds by five percent (5%) or more the amounts actually accounted for and paid to Heads Up, then Customer shall pay Heads Up all undisputed past due amounts and reimburse Heads Up for Heads Up’s reasonable expenses incurred in conducting the audit. Payment of such penalty shall not waive, limit or restrict any rights or remedies which Heads Up may have in law or equity.
14. Confidentiality.
14.1. Obligations. Each Party may disclose its Confidential Information (“Discloser”) to the other Party (“Recipient”). Recipient agrees to hold Discloser’s Confidential Information in confidence and not to copy, reproduce, publish, disclose, or transfer the Discloser’s Confidential Information to any third-party or utilize Confidential Information for any purpose other than as expressly contemplated in this Agreement, provided that a Recipient may disclose the Disclosing Party’s Confidential Information to the Recipient’s affiliates, agents, consultants, or suppliers (“Recipient Agent”): (i) as necessary to perform its rights and obligations under the Agreement; and (ii) so long as the Recipient Agent is bound to confidentiality obligations at least as stringent as the obligations herein. The Recipient is responsible for its Recipient Agent’s compliance with the confidentiality obligations in this Confidentiality Section. The obligations in this Confidentiality Section shall continue for the Subscription Term and for a period of two (2) years after the Agreement’s termination or expiration, provided the obligation for trade secrets will continue for as long as such information constitutes a trade secret under applicable law.
14.2. Exceptions. Confidential Information does not include information that: (i) is or becomes generally available to the public (except as a result of Recipient’s breach of this Agreement); (ii) is obtained by Recipient on a non-confidential basis from a third-party that was not legally or contractually restricted from disclosing such information; (iii) Recipient establishes by sufficient evidence that the Confidential Information was in its possession prior to the Discloser’s disclosure; or (iv) Recipient establishes by sufficient evidence that the Confidential Information was independently developed by Recipient without using any Discloser Confidential Information. The Recipient may disclose the Discloser’s Confidential Information if required by law, provided that the Recipient gives the Discloser prior written notice of the disclosure to the extent legally permissible.
15. Intellectual Property and Proprietary Rights.
15.1. Heads Up. Heads Up (or its licensors) retains exclusive ownership of all right, title, and interest in the Heads Up Services (including all intellectual property rights stemming from Usage Data, Professional or Support Services, even if paid for by Customer) and Heads Up Confidential Information, and all derivatives thereof. Heads Up does not perform any ‘work for hire’ services and does not grant Customer any other intellectual property rights other than those explicitly stated in the Agreement.
15.2. Customer. Customer (or its licensors) retains exclusive ownership of all Customer Data, including, if AI Services are listed on an Order Form, any queries, data, or prompts submitted to an Agent or Model by or on behalf of Customer (“Input”) and any Agent or Model-generated responses (“Output”). To the extent permitted by applicable law, Inputs and Outputs are deemed Customer Data (except to the extent Input or Output contains Heads Up’s intellectual property). Customer acknowledges that Input and Output may be similar to other Software users. In such cases, Heads Up does not grant any intellectual property rights for similar Input/Output, though Customer may pursue any intellectual property protections under applicable law. Customer grants Heads Up a non-exclusive, worldwide right to: (i) use Customer Data as necessary to provide the Heads Up Services during the Subscription Term pursuant to this Agreement; and (ii) use or modify Customer Data to create Usage Data (which is de-identified). Heads Up intends to use Usage Data, aggregated with the de-identified data of other Heads Up customers, to enable Heads Up to provide more targeted, accurate, and useful insights to its customers.
15.3. Feedback. Heads Up owns all right, title, and interest in and to any suggestion, enhancement, request, recommendation, or other feedback submitted by Customer or its Users that relates to the Heads Up Services (“Feedback”). Feedback is not Customer’s Confidential Information.
15.4. Usage Data. Heads Up may use, create, modify, aggregate, and disclose Usage Data to operate, improve, and develop the Heads Up Services or otherwise commercialize the Usage Data provided that such Usage Data is de-identified so that it is incapable of identifying Customer, its Users, Guests, or any individuals. Heads Up owns all right, title, and interest in Usage Data.
16. Liability.
THE LIMITATIONS AND EXCLUSIONS OF LIABILITY STATED BELOW WILL APPLY WHETHER AN ACTION OR CLAIM IS BASED ON TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE), CONTRACT, STRICT LIABILITY, BREACH OF STATUTORY DUTY, OR ANY OTHER THEORY.
16.1. EXCLUSIONS. NEITHER PARTY, ITS AFFILIATES, LICENSORS, OR SUPPLIERS, OR ANY OF THEIR OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, OR AGENTS WILL BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES IN ANY WAY RELATING TO THIS AGREEMENT OR RESULTING FROM THE USE OF OR INABILITY TO USE THE HEADS UP SERVICES, INCLUDING THE FAILURE OF ESSENTIAL PURPOSE, EVEN IF EITHER PARTY HAS BEEN NOTIFIED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES OCCURRING.
16.2. MUTUAL CAP. NEITHER PARTY’S LIABILITY FOR ANY DAMAGES ARISING FROM THE AGREEMENT WILL EXCEED THE SOFTWARE SUBSCRIPTION FEES PAID OR PAYABLE TO HEADS UP UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY BEFORE THE EVENTS GIVING RISE TO SUCH CLAIM. A PARTY HAVING MORE THAN ONE CLAIM SHALL NOT ENLARGE THIS LIMIT.
16.3. EXCEPTIONS. THE LIMITATIONS AND EXCLUSIONS LISTED IN THIS LIABILITY SECTION SHALL NOT APPLY TO DAMAGES RELATING TO: (I) A PARTY’S FRAUD OR WILLFUL MISCONDUCT; (II) INDEMNIFICATION OBLIGATIONS; (III) CUSTOMER’S PAYMENT OBLIGATIONS; AND (IV) A PARTY’S VIOLATION OF LICENSE RESTRICTIONS OR MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS.
17. WARRANTIES AND DISCLAIMERS.
17.1. Heads Up Limited Warranty. Heads Up represents and warrants that the Software will perform substantially in accordance with the Documentation (“Performance Warranty”). The Performance Warranty will not apply to the extent a non-conformity is caused by Customer’s breach of the Agreement or Documentation. For any breach of the Performance Warranty, Customer will promptly notify Heads Up and Customer’s sole and exclusive remedy and Heads Up’s sole liability shall be to perform its obligations pursuant to Exhibit A.
17.2. Customer Limited Warranty. Customer represents and warrants that it has all necessary consents, rights, and permissions under applicable law to: (i) provide Heads Up with and for Heads Up to use the Customer Data and any Third-Party Services (where applicable) in order to provide the Heads Up Services as described in the Agreement; and (ii) allow Heads Up to use, upload, process, and store Customer Data to provide the Heads Up Services to Participating Patients, Users, and Guests.
17.3. DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, HEADS UP, ITS AFFILIATES, AND ITS LICENSORS EXPRESSLY DISCLAIM ALL OTHER REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH REGARD TO HEADS UP SERVICES, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE, BEING AVAILABLE WITHOUT INTERRUPTION OR THAT THE HEADS UP SERVICES WILL WORK WITH ANY THIRD-PARTY SERVICES, WHICH SHALL BE PROVIDED AS-IS. HEADS UP IS NOT RESPONSIBLE FOR ANY ERRORS, DATA LOSS, DATA CORRUPTION, OR OTHER LOSSES RELATING TO CUSTOMER’S USE OF ANY THIRD-PARTY SERVICES AND TOOLS MADE AVAILABLE BY HEADS UP AND DISCLAIMS ALL LIABILITY TO CUSTOMER RELATING TO CLAIMS IN CONNECTION WITH CUSTOMER’S USE OF THIRD-PARTY SERVICES AND TOOLS.
17.4. AI DISCLAIMER. TO THE EXTENT CUSTOMER IS GRANTED A SOFTWARE LICENSE TO SOFTWARE WITH AI COMPONENTS (AS DEFINED HEREIN), THIS SECTION SHALL APPLY. HEADS UP SERVICES, INCLUDING ITS OR ITS THIRD-PARTY SERVICES PROVIDERS’ ARTIFICIAL INTELLIGENCE TECHNOLOGY, TOOLS, AND MODELS (“AI COMPONENTS”), ARE MADE AVAILABLE SOLELY FOR GENERAL INFORMATION PURPOSES. AI COMPONENTS AND THE HEADS UP SERVICES MAY NOT ACCOUNT FOR THE FULL COMPLEXITY OF INDIVIDUAL HEALTH SITUATIONS OR THE LATEST MEDICAL RESEARCH. OVERRELIANCE ON AI-GENERATED HEALTH INFORMATION MAY LEAD TO MISUNDERSTANDING OF HEALTH CONDITIONS, INAPPROPRIATE OR INACCURATE DIAGNOSIS, AND MENTAL OR PHYSICAL HARM. FOLLOWING THE HEADS UP SERVICES (INCLUDING ANY AI COMPONENT) RECOMMENDATIONS WITHOUT FIRST OBTAINING PROFESSIONAL MEDICAL CONSULTATION COULD POTENTIALLY WORSEN EXISTING HEALTH CONDITIONS OR DELAY NECESSARY MEDICAL TREATMENT AND AI COMPONENTS CANNOT REPLACE THE EXPERTISE, CLINICAL JUDGMENT, AND PERSONALIZED CARE PROVIDED BY A QUALIFIED HEALTHCARE PROFESSIONAL. HEADS UP MAKES NO GUARANTEES ABOUT THE ACCURACY OR QUALITY OF AI COMPONENTS OR OUTPUTS. THE USE OF AI COMPONENTS AND OUTPUTS ARE ENTIRELY AT CUSTOMER’S OWN RISK. CUSTOMER AGREES THAT: (I) THERE ARE INHERENT RISKS OF INACCURACY AND UNPREDICTABILITY WITH AI COMPONENTS; AND (II) HEADS UP IS NOT RESPONSIBLE FOR ANY INACCURATE, UNPREDICTED, OR UNDESIRABLE RESULTS OR OUTPUTS FROM CUSTOMER’S USE OF THE AI COMPONENTS. HEADS UP IS NOT LIABLE AND DISCLAIMS ALL LIABILITY FOR ANY CONSEQUENCES OR DAMAGES RELATING TO CUSTOMER, AND ANY OTHER THIRD-PARTY RELYING ON OR USING THE THIRD-PARTY SERVICES OR AI COMPONENTS IN THE SOFTWARE.
18. Indemnification.
18.1. Scope. The Parties will each indemnify, defend, and hold the other Party harmless (“Indemnifying Party”) against all alleged third party claims, damages (including attorney’s and filing fees), expenses, actions, or proceedings, arising out of or relating to:
a. Customer. If Customer is the Indemnifying Party, (i) Customer Data infringing a third-party’s intellectual property rights; and (ii) Heads Up’s use of any Third-Party Services provided by or used on behalf of Customer.
b. Heads Up. If Heads Up is the Indemnifying Party, the Documentation and Software provided by or on behalf of Heads Up infringing a third-party’s intellectual property rights.
18.2. Process. The indemnification obligations in this Indemnification Section are subject to the Indemnifying Party: (i) being promptly notified of the claim in writing by the other Party; (ii) the Indemnifying Party having sole control of the defense and any settlement negotiations with respect to the claim, provided it may not admit any fault or liability on behalf of the non-indemnifying Party; and (iii) being provided the assistance, authority, and any reasonably requested information from the other Party. The non-Indemnifying Party may not settle any claim stemming from this Indemnification Section without the Indemnifying Party’s prior written consent. This Indemnification Section states the Parties’ sole and exclusive remedy under the Agreement for any third-party claim covered by this Section.
18.3. Limitations. Heads Up will not have any obligation under this Indemnification Section to the extent that a claim is due to: (i) use of the Software in breach of the Agreement or Documentation; (ii) the combination, operation, or use of the Software with: (a) Third-Party Services; or (b) Customer Data to the extent that such combination, operation, or use of these caused the underlying infringement; or (iii) changes to the Software made by a party other than Heads Up, or if made by Heads Up pursuant to Customer’s request.
19. Third-Party Services.
Customer is: (i) responsible for any use of Third-Party Services, which includes use stemming from Agents or Models; and (ii) subject to the applicable terms and conditions of Third-Party Services providers. If Customer elects to use Third-Party Services with the Software, Customer consents to the transmission and exchange of Customer Data with the Third-Party Services. Heads Up makes no claims or representations regarding, and accepts no responsibility or liability for, Third-Party Services or their ability to work with the Software, or Customer’s use thereof. Customer’s use of Third-Party Services is at its own risk.
20. Trial Access.
If offered by Heads Up, Customer may access and use the Software on a trial basis. Customer agrees that it is responsible for all On-Going Fees during its trial access. Notwithstanding anything to the contrary in the Agreement, if Customer is granted trial access, the terms in this Trial Access Section supersede any conflicting terms in the Agreement. The trial’s term will be as stated in the applicable Order Form or as otherwise allowed by Heads Up and will expire the sooner of: (i) the expiration of the period on the Order Form; (ii) Heads Up ending the trial in its sole discretion; or (iii) Customer purchases a subscription to the Heads Up Services (“Trial Term”). Upon the Trial Term’s expiration, Customer’s right to use the Heads Up Services through the trial access immediately expires. CUSTOMER AGREES THAT THE HEADS UP SERVICES ARE PROVIDED “AS IS” AND MAY CONTAIN FORWARD LOOKING CODE. HEADS UP DISCLAIMS ALL WARRANTIES AND ITS INDEMNIFICATION OBLIGATION SHALL NOT APPLY TO FREE TRIAL USE. HEADS UP DISCLAIMS ALL LIABILITY RELATING TO ANY FREE TRIAL USE, AND IF A DISCLAIMER OF LIABILITY IS NOT ALLOWED UNDER APPLICABLE LAW, HEADS UP’S LIABILITY SHALL NOT EXCEED $100.00.
21. Marketing.
Customer grants Heads Up a limited right to use Customer’s trademarks, logos, and related materials in Heads Up’s sales and marketing materials and otherwise reference Customer’s use of the Heads Up Services in marketing publications.
22. General Terms.
22.1. Relationship. This Agreement does not create any partnership, joint venture, or agency relationship between the Parties.
22.2. Notice. Any notices related to this Agreement must be in writing. Notices to Customer will be sent to the administrative User’s email address associated with Customer’s account or to Customer’s contact information listed on the Order Form. Notices to Heads Up shall be sent to support@headsuphealth.com and the Heads Up address listed on the Order Form.
22.3. DMCA Notice. Pursuant to 17 U.S.C. § 512 (Digital Millenium Copyright Act of 1998, “DMCA”), Heads Up has implemented takedown procedures for infringing materials. If Customer has a good faith belief that copyrighted materials that Customer has authority to act on are being used in the Heads Up Services in an infringing manner, Customer may submit a notice of infringing material to Heads Up by emailing support@headsuphealth.com. Heads Up will promptly review any submissions and if all requirements in DMCA are met, Heads Up will act in accordance with its obligations in DMCA, and where necessary, remove the infringing content.
22.4. Governing Law. This Agreement shall be interpreted and governed by the laws of the State of Arizona without regard to its conflict of laws principles. For any disputes arising out of this Agreement, the Parties consent to the personal and exclusive jurisdiction of, and venue in, the competent state and federal courts within Maricopa County, Arizona.
22.5. Assignment. Customer may not assign its rights and duties under this Agreement without the prior written consent of Heads Up, except that Customer may assign this Agreement in whole as part of a merger, or sale of substantially all its assets. Heads Up may freely assign this Agreement. This Agreement shall be binding upon and inure to the benefit of the Parties and their successors and permitted assigns.
22.6. Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the Heads Up Services and supersedes all other agreements and understandings, whether oral or written, including any purchase order terms or other hyperlinked terms not referenced in this Agreement. This Agreement may only be modified by the Parties’ mutual written agreement. Any Order Form or the Agreement may be executed in any number of counterparts, with all signed documents together constituting the same document.
22.7. Waiver and Enforceability. A failure to enforce any provision of this Agreement shall not constitute a waiver of any future enforcement of that or any other provision of this Agreement. If any language in this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the at-issue language will be modified to the least extent necessary to make such language valid and enforceable.
22.8. Force Majeure. Neither Party shall be liable for delays or failures in performing any of its obligations hereunder (except for Customer’s payment obligations) due to causes beyond its reasonable control, including an act of nature, war, natural disaster, governmental regulations, terrorism, or communication or utility failures.
22.9. Order of Precedence. In the event of a conflict between the Agreement and any Order Form or SOW, the Order Form or SOW will control so long as the specific section being modified in the Agreement is referenced on the Order Form or SOW.
22.10. US Government Rights. If Customer is a United States Government entity, the Software covered by this Agreement is “commercial computer software” as defined by current Federal Acquisition Regulation (“FAR”), Department of Defense Federal Acquisition Regulation Supplement (“DFAR”), or other applicable agency regulation provisions. For “commercial computer software,” the license grant in this Agreement shall apply. If the Software is other than “commercial computer software,” then the United States Government Customer shall receive no greater than Restricted Rights, as defined in the currently applicable version of the FAR, DFAR, or other applicable Agency regulation. In the event that alternative regulatory rights allocation provisions are available to the Parties, the provision which provides Customer with the narrowest rights allocation permitted by law and regulation shall apply.
22.11. Survival. Termination or expiration of this Agreement, or any Order Form or SOW will not affect the provisions regarding Confidential Information, payments of amounts due, indemnification obligations, limiting or disclaiming each Party’s liability, or any other provision reasonably intended to survive the Agreement’s termination or expiration.
EXHIBIT A: Support Services
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