Recently updated: Sep 15, 2019
This Master Service Agreement (the “Agreement”) is made and entered as of the date the Customer clicked its agreement to this Agreement (“Effective Date”), by and between Reaction Wellness Ltd. a company organized under the laws of Israel with its principal place of business at 14b Tidhar St., Zichron Yaaqov, Israel and its affiliates (“Reaction”), and the Customer (as set forth in its Platform account) (the “Customer”). Customer and Reaction shall each be referred individually to as a “Party” and collectively as the “Parties”.
By clicking the “I Agree” button, Customer hereby represents and warrants that it has read and agrees to be bound by the terms and conditions of this Agreement as set forth hereunder:
WHEREAS, Reaction is providing services in the field of wellness, in connection with its platform and application (collectively the “Platform”);
WHEREAS, the Customer wishes to provide wellness programs to its employees, consultants, agents or representatives (collectively, the “End Users”), and
WHEREAS, the Company desires to retain the services or products of Reaction to provide its End Users with certain wellness program via the Platform, in accordance with the terms and conditions hereinafter set forth, and Reaction is willing to provide such services and products.
NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Reaction and the Customer agree as follows:
1. Scope of Agreement
This Agreement sets forth the terms under which Customer will purchase and license services or products from Reaction. Reaction’s services or products shall include the services and products as set forth in the Platform (the “Services”).
2. Statement of Work
If at any time during the term of this Agreement, Customer through the Platform or through one or more written statement of works or other written instruments, requests Reaction to supply or perform the Services, and Reaction agrees to supply or perform those Services, each such request shall be deemed as a statement of work governed by and subject to the terms and conditions of this Agreement (the “SOW”), and shall be considered as an integral part of this Agreement.
3. Payment Terms
3.1 For Reaction’s performance of the Services, Customer will pay Reaction fees calculated per user in accordance with the terms set forth in the Platform or as set forth in the relevant SOW (the “Service Fee”). Once Reaction receives the Service Fee, Reaction will provide Customer with a tax invoice for such Service Fee.
3.2 Without derogating from the foregoing, the Parties agree that they can agree that the Service Fee shall not fully cover the amounts required to provide the Services to End Users and that in accordance with the agreement between Reaction and the Customer, the End User shall be required to pay a certain amount of fees in order to use the Services, as shall be indicated to the End User within the Platform (“Participation Service Fee”). If Customer wishes to use the option of requiring End User to pay Participation Service Fee for any Service, then Customer shall notify Reaction in advance and provide it with all the relevant details to set such Participation Service Fee. It is hereby clarified that only after full payment of the Service Fee and/or Participation Service Fee shall the End Users be entitled to use the Services.
3.3 Except as expressly provided for herein, each Party shall bear its own costs in connection with this Agreement and its subject matter, whether such costs were incurred before or after the date of this Agreement. Notwithstanding the foregoing, if any party should institute any action or proceeding to enforce or interpret any term or provision hereof, then the party prevailing in such action or proceeding shall be entitled to its reasonable attorneys' fees and out-of-pocket disbursements from the non-prevailing party or parties.
4. End Users
4.2 Customer represents and warrants that it shall: (i) notify End Users on the general interaction with Reaction and provide the Access Details solely to its End Users in accordance with the information provided to it by Reaction; (ii) shall provide the Access Details only to eligible End Users, who are at least 18 years old, legally able to enter an agreement with Reaction, and are not known to be at risk of using such Service; (ii) not misrepresent the Services or promise any results, benefits or other representations or warranties, unless explicitly authorized in written to do so by Reaction; (iii) not sale, rent, transfer or otherwise provide the Access Details to unrelated third parties, except for its End Users; (iv) not compel any End User to use the Services, and shall notify them that the Services are provided on a voluntary basis; (v) shall inform its End Users that Reaction is an independent contractor and that it is not an affiliated company of Customer; and (vi) to the extent applicable, notify in advance End Users that they will be required to pay Participation Service Fee as will be indicated in the Platform.
4.3 Customer shall update Reaction on any change to the status of employment of its End Users which might impact continued use of the Services, and it shall do so promptly in writing, but no later than 30 days as of the date an End User has ceased being an employee of Customer. It is clarified that no refunds shall be given for any cancelation of Services once they have commenced.
Reaction warrants that it will provide the Services: (a) in a timely and professional manner, consistent with applicable industry standards; (b) in conformance with that level of care and skill exercised by other professionals in similar circumstances but in any event no less than reasonable care and skill; and (c) in compliance with all applicable laws and regulations.
6. Intellectual Property Rights
6.1 The Intellectual Property Rights and all other rights, title and interest of any nature in and to Platform or Services and any related documentation made available by or on behalf of Reaction hereunder (including all modifications, enhancements, upgrades, customizations and derivative works thereof) (whether or not permitted under this Agreement), are and shall remain the exclusive property of Reaction and its licensors. For the purpose of this Agreement “Intellectual Property Rights” shall mean all intellectual property rights of every kind and description, including without limitation all U.S. and non-U.S. (a) rights in or to trademarks and service marks (whether or not registered), trade names and other designations of source of origin, together with all goodwill related to the foregoing, (b) patents and patent applications, (c) rights in or to copyrights, whether or not registered, (d) rights in or to trade secrets and confidential information, including without limitation know-how, technology methods, ideas and inventions, (e) rights in software and computer code (whether in source code, object code or any other form) and (f) all applications and registrations of any of the foregoing.
6.2 Subject to the terms and conditions of this Agreement, Reaction hereby grants Customer a non-exclusive, non-transferable, limited license to use the Access Details for internal business purposes during the Term in connection with the Services. Unless otherwise set out in a specific SOW, Reaction may terminate this license in accordance with the terms and conditions hereunder.
6.3 Nothing in this Agreement shall be construed as transferring any right, title or interest to Customer or any third party, unless explicitly stated hereunder. Reaction and its licensors reserve any and all rights not expressly granted in this Agreement. The provisions of this Section shall remain in full force and effect after termination or expiration of this Agreement for whatever reason.
7.1 Customer (“Indemnifying Party”) shall indemnify, defend and hold harmless, Reaction and its respective affiliates, officers, directors, shareholders, or representatives (“Indemnified Parties”) from any and all demands, judgments, awards, losses, damages, expenses, claims and liabilities, and all related costs, including reasonable legal fees (“Liabilities”) incurred by Indemnified Party as a result of or arising out of a third party claim arising from: (a) a breach of any representations or warranties made by Indemnifying Party hereunder; (b) a breach by an Indemnifying Party of any of its confidentiality or data protection obligations hereunder; (c) the gross negligence, willful misconduct or fraud of an Indemnifying Party, its employees, agents, or subcontractors; and (d) any breach or violation of applicable law by an Indemnifying Party.
7.2 Should the Indemnified Party intend to claim indemnification hereunder from the Indemnifying Party, the Indemnified Party shall promptly notify the Indemnifying Party in writing of any Liabilities in respect of which the Indemnified Party intends to claim such indemnification and the Indemnifying Party shall be entitled, but not obligated, to assume the defense of any third party claim thereof with counsel selected by it. The Indemnified Party, including its affiliates, directors, officers and employees, shall co-operate fully, at Indemnifying Party’s expense, with Indemnifying Party and its legal representatives in the investigation and defense of any Liabilities covered by this indemnification. The Indemnified Party shall not settle any claim or Liability for which it seeks indemnification hereunder without the prior written consent of the Indemnifying Party. The indemnification shall not apply to amounts paid in settlement of any Liability if such settlement is affected without the prior written consent of Indemnifying Party, not to be unreasonably withheld or delayed.
8. Limitation of Liability and Disclaimer
8.1 In no event shall Reaction be liable to Customer for any damages whatsoever including, without limitation, indirect, consequential, special, punitive or incidental damages, or damages for loss of business profits, business interruption, loss of business information, or other pecuniary loss, arising out of the Services or this Agreement, even if Reaction has been advised of the possibility of such damages.
8.2 Notwithstanding anything to the contrary in this Agreement, and to the extent not prohibited by applicable law, in no event shall Reaction’s maximum aggregate liability for damages in connection with this Agreement exceed the lower of: (i) the amount of Service Fee and/or Participation Service Fee actually paid to Reaction under this Agreement in the 6 months preceding such liability, or (ii) USD 2,500.
8.3 Except as otherwise expressly stated hereunder, AND TO the maximum extent permitted by applicable law, the Services, PLATFORM and/or any related documentation are provided on an “as is” and “as available” basis without warranty of any kind. Reaction disclaims all warranties, either express or implied, and MAKES NO REPRESENTATION NOR DOES IT EXTENDS ANY WARRANTY OF ANY KIND, WITH RESPECT TO THE SERVICES OR THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTY ARISING OUT OF PRIOR COURSE OF DEALING AND USAGE OF TRADE.
9.1 Confidentiality Obligations. Receiving Party agrees not to use any confidential or non-public information disclosed by disclosing Party in connection with the Services or this Agreement, (“Confidential Information”) for any purposes, except as necessary to fulfill its obligations under this Agreement. The receiving Party agrees not to disclose the Confidential Information, except to those of its employees or agents who have a need to know the Confidential Information in order to fulfill the receiving Party’s obligations under this Agreement (such recipients, collectively, the “Authorized Recipients”). Without limiting the foregoing, receiving Party is liable hereunder for any disclosure or use by an Authorized Recipient that is not in conformance with this Agreement.
9.2 Should the receiving Party be required by law, court or other competent state authority to disclose any Confidential Information obtained from the disclosing Party, the receiving Party will provide the disclosing Party with prompt prior written notice of such request or requirement so that the disclosing Party can seek appropriate lawful protective measures.
9.3 Upon written request by the disclosing Party, or upon expiry or termination of the Agreement, the receiving Party will return to the disclosing Party, within 7 days following receipt of such request (or such other timeframe as agreed to by the Parties in writing), any designated Confidential Information of the disclosing Party. The receiving Party may, subject to the obligations of confidentiality in this Section 9, keep any Confidential Information of the disclosing Party that the receiving Party has a license to continue using. At the disclosing Party’s request, the receiving Party will certify in writing that it has returned or destroyed all copies of the disclosing Party’s Confidential Information in the receiving Party’s (or its affiliates’ or contractors’) possession or control.
9.4 The obligations of confidentiality do not apply to an information that: (a) is or becomes a part of the public domain through no act or omission of the receiving Party; (b) was in the receiving Party’s lawful possession prior to the disclosure and had not been obtained by the receiving Party either directly or indirectly from the disclosing Party; (c) is lawfully disclosed to the receiving Party by a third party that is not bound by restriction on the disclosure; or (d) is independently developed by the receiving Party, without reliance on the disclosing Party’s Confidential Information.
9.5 The Parties acknowledge that unauthorized disclosure or use of Confidential Information may give rise to irreparable injury, which may not be adequately compensated by damages. The Parties agree and acknowledge that money damages may not be a sufficient remedy for any breach or threatened breach of the provisions of this Section by receiving Party and that the disclosing Party shall be entitled to seek specific performance or injunctive relief (as appropriate) as a remedy for any breach or threatened breach thereof, in addition to any other remedies available at law or in equity.
9.6 The Parties acknowledge and confirm that the confidentiality obligations under this Section shall survive the Term and continue to be in full force and effect after the termination of this Agreement for a period of 5 years thereafter.
10. Privacy and Data Protection
10.1 The Parties shall comply with all applicable privacy and data protection laws and regulations, as applicable to each Party under this Agreement. The Parties hereby acknowledge and agree that no personal data of the End Users is supposed to be shared or processed under this Agreement between Customer and Reaction, however, in case processing of such personal data will be required in the future, then the Parties agree to executed a Data Protection Addendum prior to such processing being carried out.
10.2 Reaction shall take reasonable administrative, physical, technical and other safeguards for information security management in connection with the Services and in accordance with applicable laws.
11. Relationship of the Parties
In connection with this Agreement, each Party is an independent contractor and as such will not have any authority to bind or commit the other Party. Nothing herein shall be deemed or construed to create a joint venture, fiduciary or agency relationship between the Parties for any purpose. Nothing in the Agreement shall be interpreted or construed as creating or establishing the relationship of employer and employee between Customer and Reaction.
12. Term and Termination
12.1 This Agreement will commence on the Effective Date and, unless terminated earlier in accordance with the terms of this Agreement, will remain in force and effect for as long as Reaction is performing Services pursuant to this Agreement or any SOW (“Term”).
12.2.1 Either Party may terminate this Agreement (and/or any SOW issued hereunder) for any reason or no reason upon 30 days’ prior written notice to the other Party.
12.2.2 Either Party may terminate this Agreement and/or any SOW as follows: (a) if a Party sends the other Party notice of such other Party’s breach of any material obligation under this Agreement and if reasonably capable of being cured, such breach is uncured within 14 days after the notice of the breach is provided; or (b) without notice to the other Party if such other Party files a petition for bankruptcy, is adjudicated bankrupt, is insolvent, makes an assignment for the benefit of creditors, or enters into an agreement with its creditors pursuant to other bankruptcy law. In the event of termination (except for termination due to actual breach by Reaction) of this Agreement, including any SOW, Customer will be liable for payment for Services completed, as provided for hereunder or in any SOW, on or prior to the effective date of termination.
12.2.3 Upon the expiration or termination of this Agreement: (i) Each Party will promptly return to the other Party all Confidential Information of the other Party in its possession or control, except that either Party may keep one copy of the Confidential Information for archival purposes or as required by applicable law; (ii) Customer will, within 30 days after receipt of Reaction’s undisputed invoice, pay all accrued and unpaid fees and expenses; (iii) all license and rights granted by Reaction to Customer hereunder shall immediately terminate.
13. Governing Law and Jurisdiction
This Agreement and any claim, controversy, or dispute arising under, related to, or otherwise in connection with this Agreement, including the nature of the relationship of the Parties and/or the interpretation and enforcement of their respective rights and obligations under this Agreement, shall be interpreted, construed, and enforced in accordance with the laws of the State of Israel, applied without giving effect to any conflicts of law principles that would result in the application of the laws of any other jurisdiction. The Parties agree that any lawsuit that may be brought with respect to this Agreement shall be brought and tried exclusively in competent courts located in Tel-Aviv, Israel.
14.1 Additional Acts. Each Party agrees to perform such additional acts and to execute and deliver such documents as may be necessary to carry out the terms and conditions of this Agreement.
14.2 Amendments. Only a writing signed by both Parties may amend this Agreement. Such amendment shall become binding as of the date indicated in the amendment or, if not otherwise provided for, the date of last signature by the Parties.
14.3 Assignment. This Agreement may not be assigned or transferred by either Party without the prior written consent of the other Party. Any purported assignment of this Agreement made without such other Party’s prior written consent shall be void and without legal effect. The Party seeking assignment shall provide such information about the proposed assignee as the other Party may reasonably request. Notwithstanding the foregoing, Reaction shall be permitted to assign this Agreement without the prior written consent of Customer, in connection with any transfer or sale of all or substantial part of the assets of Reaction as part of a merger, consolidation or sale.
14.4 Authority to Execute. Those executing this Agreement represent and warrant that they are duly authorized to execute this Agreement on behalf of the Party that they purport to represent.
14.5 Binding Effect. This Agreement and all its terms and conditions shall be binding upon and shall inure to the benefit of and be enforceable by the Parties, their successors, and permitted assignees.
14.6 Construction. The captions or headings in this Agreement are made for convenience and general reference only, and shall not be construed to describe, define, or limit the scope or intent of any of the terms and conditions of this Agreement. The words “hereof,” “herein,” and “hereunder,” and words of a similar import, when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement.
14.7 Force Majeure. Neither Party shall be liable for any delay or failure to perform if and to the extent that such delay or failure to perform is caused or otherwise brought about by circumstances beyond the non-performing Party’s reasonable control, including strikes, lockouts, labor troubles, restrictive government or judicial orders or decrees, riots, insurrection, war, terrorism, Acts of God, and/or inclement weather, which the non-performing Party is unable to prevent by the exercise of reasonable due diligence, and provided that the non-performing party uses its best efforts to overcome any such circumstances and the resultant delays or failures to perform.
14.8 Entire Agreement. This Agreement, including all attachments and exhibits, contains the entire agreement of the Parties, and there are no other promises or conditions, whether oral or written, applicable with respect to the subject matter of this Agreement. This Agreement supersedes any prior oral or written agreements or understanding between the Parties.
14.9 Notices. The Parties shall give notice under this Agreement (i) by hand delivery, (ii) by postal service certified mail, return receipt requested, postage prepaid, (iii) by nationally recognized overnight express delivery service, charges prepaid; or (iv) by email. Notices shall be addressed to the contact details provided by the Parties through the Platform or Services, as applicable.
All notices, requests, demands, and other communications with respect to this Agreement shall be in writing and shall be deemed to have been given (i) when delivered personally and signed for by or on behalf of the recipient; (ii) when delivered by the postal service and signed for by the Party for whom intended at his, her, or its address; (iii) one (1) business day after dispatch by a nationally recognized overnight express delivery service; or (iv) on the same day if sent by email, provided that if the date of receipt is not a business day then the notice shall be deemed given, received, and effective on the next business day.
14.10 Severability. Should any one or more of the provisions of this Agreement be determined to be invalid, unlawful, or unenforceable in any respect, the validity, legality, and enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired by such determination and will remain in full force and effect, and the provision affected will be construed so as to be enforceable to the maximum extent permissible by law.
14.11 Third Party Beneficiary. Nothing contained in this Agreement shall give rise to any third party being considered a third-party beneficiary of this Agreement or having or being entitled to any rights whatsoever with respect to this Agreement, including the right to enforce any of the terms and/or conditions of this Agreement.
14.12 Waiver. A delay or omission by either Party to exercise any right under this Agreement shall not be construed to be a waiver of such right. A waiver by either Party of any of the performance provisions of this Agreement or any breach with respect to such performance shall not be construed to be a waiver of any succeeding performance or breach.
14.13 Electronic Signature. The Parties agree that the electronic signature of a Party to this Agreement shall be as valid as an original signature of such Party and shall be effective to bind such party to this Agreement. The Parties agree that any electronically signed document (including this Agreement) shall be deemed (i) to be “written” or “in writing”; (ii) to have been signed and (iii) to constitute a record established and maintained in the ordinary course of business and an original written record when printed from electronic files. Such paper copies or “printouts”, if introduced as evidence in any judicial, arbitral, mediation or administrative proceeding, will be admissible as between the Parties to the same extent and under the same conditions as other original business records created and maintained in documentary form. Neither party shall contest the admissibility of true and accurate copies of electronically signed documents on the basis of the best evidence rule or as not satisfying the business records exception to the hearsay rule.
14.14 Electronic Communications. You agree to the use of electronic communication in order to enter into agreements and place orders, and to the electronic delivery of notices, policies and records of transactions initiated or completed through the Platform or Services. Furthermore, you hereby waive any rights or requirements under any applicable laws or regulations in any jurisdiction that require an original (non-electronic) signature or delivery or retention of non-electronic records, to the extent permitted under applicable law.