Awell Terms of Service
The following terms of service (hereinafter collectively referred to as the “Agreement”) are made and effective as of the date of the acceptance of the quote (hereinafter referred to as the “Effective Date”).
Awell Health BVBA, a company having its registered offices at 1180 Ukkel (Belgium), Alsembergsesteenweg 837, registered with the Belgian trade register no. BE 0696.819.789, represented by its Managing Director, Thomas Vande Casteele (hereinafter referred to as “Awell”)
Client, as defined in the quote or on the invoice referring to this document (hereinafter referred to as the “Client”)
- a) Awell has developed a cloud-based software platform to support healthcare providers with data collection, patient information, surveys and decision support for patient treatment; in particular, this platform allows healthcare providers to develop and share automated pathways for patient treatment and follow-up;
- b) Client is a healthcare provider that wants to use the platform above mentioned to support its professionals with their patients’ treatment;
- c) at the terms and conditions herein, Awell is available to provide Client with access to the above-mentioned software platform, provided that any different Client’s purchase term or condition is not applicable and expressly waived by the latter.
NOW THEREFORE, in consideration of the mutual covenants and conditions herein contained,
HEREBY IT IS AGREED AS FOLLOWS
SECT. 1 – DEFINITION The following definitions apply to the following capitalized terms in this Agreement, provided that a word defined in or importing the singular number has the same meaning when used in the plural number, and vice versa: 1.1. “Admin Account” means the account connected to the Client to manage User Accounts and billing in the Platform. 1.2. “Anonymized Data” means, singularly and collectively, all the Data that are not Personal Data and that, therefore, does not include personal identifiers of the Patient (such as his or her name, e-mail address, address, etc.).
1.3. “Confidential Information” means, collectively and indistinctly, all data, materials, technology, know-how, patents information, discoveries, ideas, methods, software, product designs, product descriptions, product concepts, prototypes, models, parts, components list, manufacturing processes, quality control sheet, testing information, research studies, improvements, developments, plans for research and development, present or future projects or products, technical drawings, specifications, techniques, processes, trade secrets, business plans or opportunities, business strategies, marketing plans, sales data, procedures, information relating to prices, finances, costs, clients, suppliers, service providers, customers and employees, and all record-bearing media containing or disclosing such information; this definition shall not limit any definition of “confidential information” or “trade secrets” or any equivalent term under the applicable Laws. 1.4. “Data” means, singularly and collectively, any information in electronic form submitted to the Platform by Users or by Patients. 1.5. “Intellectual Property Rights” means, singularly and collectively, all intellectual property and other similar proprietary rights in any jurisdiction, whether owned or held for use under license, whether registered or unregistered, including without limitation trademarks, trade dresses, logos, patents, utility models, design registrations, writings and other works of authorship, trade secrets, know-how, software, advertising and promotional materials, as well as all rights to sue for passing off or unfair competition, and all rights of similar nature existing anywhere in the world. 1.6. “Laws” means, collectively, any and all applicable local, state, national, and international laws, rules and regulations. 1.7. “Patient” means an individual to whom healthcare services (i.e. services to improve, diagnose, maintain, remedy or improve the health condition of the individual) are provided by the Client. 1.8. “Patient Record” means a Platform entry comprising Data in relation to a Patient that was created by a User. 1.9. “Platform” means the cloud-based software platform and all the related services developed and commercialized by Awell to support healthcare providers with data collection, patient information, surveys and decision support for patient treatment. 1.10. “Pathway” means a sequence of modules in the Platform that correspond to a sequence of steps that are or should be performed by caregivers during the treatment of a Patient. Such steps include, without limitation, surveys to be completed by a Patient before, during and after treatment, information provided to Patients in relation to his or her condition or treatment and forms, checklists and reports to be completed by physicians or staff. 1.11. “Pathway Library” means a library of standardized Pathways that were submitted to the Platform by users of the Platform and that were not labelled ‘private’ by the individual or organization having first submitted the Pathway. 1.12. “Personal Data” means, singularly and collectively, any Data relating to a natural person who is identified or who can be identified, either directly or indirectly. 1.13. “Term” means a period of 2 (two) year as from the Effective Date for the initial contractual term. For subsequent contractual terms, “Term” means a period of 1 (one) year as from the first day following the expiration of the preceding Term. If the Effective Date is February 29th, the first day of the subsequent Term will be March 1st 1.14. “Updates” means, singularly and collectively, additional tools, utilities, improvements, third party applications, features or functions, programming fixes, updates and upgrades to the Platform.
1.15. “User” means an individual within the organization of the Client, typically either a physician or nursing staff, who has received adequate training regarding the use of the Platform from the Client. 1.16. “User Account” means an individual account created under Client’s Admin Account according to the terms and conditions of this Agreement, allowing a User to login to the Platform with a username and a password.
SECT. 2 – ACCESS AND USE OF THE PLATFORM 2.1. Rights granted. Subject to Client’s payment obligations, Awell grants Client the restricted, non-exclusive, non-transferable, non-sublicensable and revocable right to access and use the Platform with the Admin Account to support its healthcare services to Patients for the Term. In particular, the Platform will be available to Client and its Users as a web service and can be accessed with updated web browser software. Specific Platform functions may also be accessed by means of an application developed for smartphones and tablet computers. Accordingly, Platform requires a working internet connection. 2.2. Client responsibilities. Client is entirely responsible for the use of the Platform and, to such purpose, Client shall not use, or encourage, promote, facilitate, or instruct, or induce others to use the Platform for any activity that violates any Laws, or for any other illegal, fraudulent, harmful, or offensive purpose, or to transmit, store, display, distribute or otherwise make available in the Platform any Data that is illegal, harmful, offensive, libelous, defamatory, obscene, pornographic, profane, threatening, abusive, hateful, harassing, inappropriate or that would encourage or constitute a criminal or civil liability under the applicable Laws. Examples of prohibited uses of the Platform include:
2.2.a. using the Platform without following the documentation and instructions provided by Awell; 2.2.b. creating, uploading and/or modifying any Data, or take any action on the Platform, that is illegal, fraudulent, harmful, or violates any applicable Laws; 2.2.c. creating, uploading and/or modifying any Data, or take any action on the Platform, that violates the rights of any third party (including, without limitations, privacy, property rights, etc.); 2.2.d. creating, uploading and/or modifying any Data, or take any action on the Platform, that infringes or violates the Intellectual Property Rights of another person, entity, service, product, or website; 2.2.e. uploading viruses or malicious codes, or take any other action on the Platform that could anyway compromise any functionality thereof; 2.2.f. accessing any account belonging to someone else, or otherwise access the Platform using any robot, spider, scraper, or other automated means to access the Platform for any purpose (e.g., Data extraction, Data scraping, Data mining, Data harvesting, etc.); 2.2.g. using the Platform to provide services to third parties other than its Patients; 2.2.h. facilitating or encouraging any violations of this Agreement.
2.3. Account and Data security. Client will be assigned a username and a password per Admin Account and User Account, of which Client is entirely responsible for safeguarding and maintaining the security and confidentiality thereof. Client acknowledges and accepts that Awell will assume that any person using the Platform with the User’s username and password, either is the User or is authorized to act for the latter. Client undertakes not to share the account password to any third party or to let anyone else access the Platform or do anything else that might jeopardize the security thereof. Client agrees to make every reasonable effort to prevent unauthorized third parties from accessing the User Accounts, Patient Records and Data, and agrees to immediately notify Awell in writing if it has reasons to believe that unauthorized access to Data or Patient Records has occurred by means of its Admin Account or User Accounts. Upon the discovery of such access, the Client will also notify affected Patients and authorities as required by the Laws. 2.4. Authorized access by Users. Client is entitled to allow Users to use the Platform and, to such purpose, Client:
2.4.a. shall be responsible for such authorized Users’ compliance with this Agreement as well as for all the activities that will occur under their User Accounts and as a result of their access to the Platform; 2.4.b. shall identify these Users, approve their access to the Platform, control against unauthorized access by them, and maintain the confidentiality of usernames, passwords and User Account information; 2.4.c. warrants and represents that Users will use the Platform only at the purpose to support their healthcare services to Patients within the Client’s organisation, in accordance with the terms of this Agreement; 2.4.d. shall inform Users, before granting access to User Accounts, that the Platform cannot be used as the only or main basis for therapeutic decision making and, if therapeutic decision making is partly based on information obtained from the Platform, the Client shall ensure that the User will verify the accuracy of that information with the Patient by means of standard diagnostic methods prior to any therapeutic intervention.. 2.5. Further Client representations. Client expressly undertakes, warrants and represents that the Platform:
2.5.a. shall not be relied upon as the only tool and record for the Client’s recordkeeping obligations; 2.5.b. shall be used only as a tool to support or facilitate Patient care, but not as the only or main basis for therapeutic decision making 2.5.c. shall not be used if Client is in breach of this Agreement.
SECT. 3 – PLATFORM AVAILABILITY, SUPPORT AND UPDATES. 3.1. Availability. Awell will use commercially reasonable efforts to make available the Platform 24 (twenty-four) hours a day, 7 (seven) days a week. Notwithstanding the preceding, Client acknowledges and agrees that Awell has no control or liability over the availability of the Platform on a continuous or uninterrupted basis, so that from time to time the Platform may be inaccessible or inoperable for several reasons, including, without limitation:
3.1.a. errors, failure or unavailability of third party services and products (including web hosting, telecommunications networks, etc.);
3.1.b. errors related to the Client’s hardware (including but not limited to computers, tablets, networks, etc.) or software (including but not limited to incompatibility of the Platform with specific web browsers or other Client software, viruses on the Client’s computer systems, etc.); 3.1.c. downtime of the Platform for maintenance, error/bug correction or updates; 3.1.d. errors or failure resulting from Client’s or Users’ use of the Platform not in accordance with Awell’s documentation or instructions; 3.1.e. events of force majeure or in any way beyond Awell’s reasonable control (including, without limitation, interruption or failure of telecommunication or digital transmission links, hostile third-party attacks, network congestion, downtime resulting from denial-of-service, etc.). 3.2. Access suspension. Awell may temporarily suspend either the Admin Account or a User Account in case of substantive violations of any provision of this Agreement (including, without limitation, payment terms), as well as in case the Platform or any component thereof are about to suffer a significant threat to security or functionality, in Awell’s reasonable judgment. To such purpose, Awell will notice the Client in advance, based on the nature of the circumstances giving rise to the suspension. Awell will use reasonable efforts to re-establish the Platform promptly, after Awell determines, in its reasonable discretion, that the situation giving rise to the suspension has been cured; however, during any suspension period, Awell will make available to Client, User and Patients the Data as existing in the Platform on the date of suspension. Any suspension by Awell under this Sect. 3.2 shall not excuse Client from its obligation to make payments as per this Agreement. 3.3. Support. Upon Client’s or a User’s request, support will be provided by Awell 9 am to 5 pm CET (Central European Time) Monday to Friday, Belgian holidays excluded. Awell may use a variety of methods (e.g., in-product, internet, chat, e-mail, remote control and phone) to provide technical support and customer service. Support may be temporarily limited, interrupted or curtailed due to maintenance, repair, modifications, upgrades or relocation. In any case, the support service shall be considered as part of the Platform for all the purposes of the Agreement. 3.4. Updates. In its sole discretion or to comply with applicable laws or regulations, as well as to address a data protection or security issue, Awell reserves the right to provide Updates in order to improve and enhance the features and performance of the Platform. Client expressly acknowledges and agrees that Awell has no obligation to make available and/or provide any Updates. In case that Awell provides any Updates, this Agreement shall automatically apply thereto, unless Awell provides other applicable terms and conditions.
SECT. 4 – PATHWAYS AND PATHWAY LIBRARY 4.1. Pathway creation. The Client and/or the User that created a Pathway in the Platform will be the proprietor of any right, including Intellectual Property Rights, thereto. The Client or its Users may choose to keep Pathways created by Users ‘private’, so that such Pathways will not be listed or credited in the Pathway Library. 4.2. Pathways library creation. The Client and/or its Users may publish Pathways in the Pathway Library. The Client shall obtain all and any right required, including but not limited to Intellectual Property Rights, in Pathways published in the Pathway Library by its Users. 4.3. Pathway access. The Users and the Client may access, use and modify the Pathways published in the Pathway Library in the Platform. Modified Pathways may be published in the Pathway Library, crediting the author of the modified Pathway and the author of the modifications.
4.4. Intellectual Property Rights on the Pathways. Awell does not verify whether Pathways submitted by Clients or Users contain or otherwise use proprietary content. In case the Client or a User believes a Pathway infringes the rights of the Client, a User or third parties, they will immediately notify Awell in writing. Awell will undertake appropriate action to follow-up on such notifications. If a Pathway comprises content such as proprietary clinical surveys for which a licence is required, the User and the Client will obtain a licence to use that content prior to incorporating or using such content in the Pathway. 4.5. Awell’s right on Pathways Library. The Client grants Awell, or undertakes to obtain for Awell, an irrevocable, worldwide and sublicensable licence to use, copy, publish, modify and distribute Pathways that its Users have published in the Pathway Library. The rights granted by Client under this provision include the right to adapt, modify and otherwise change the Pathways published by its Users on the Platform. Pathways published in the Pathway Library will be credited to the User and/or organization having first published the Pathway in the Pathway Library. Once published, Pathways may not be removed from the Pathway Library by Users or Clients. The license granted or procured by the Client in accordance with this provision will survive the termination of this Agreement.
SECT. 5 – DATA SUBMITTED TO THE PLATFORM 5.1. Data lawfulness. Client shall have the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of the Data uploaded to the Platform by means of its User Accounts. In no way whatsoever Awell will be responsible for any Data uploaded to the Platform. 5.2. Personal Data. Without limiting the foregoing, Client warrants and represents that all the Data submitted to the Platform shall be fully compliant with the applicable Laws regarding the protection of the Personal Data, including but not limited to the European General Data Protection Regulation no. 2016/679. To such purpose, Client expressly warrants and represents that:
5.2.a. the same Client will act as the sole “controller” of the Personal Data submitted to the Platform, as Awell is a mere “processor” of such data; 5.2.b. if consent is not collected by Aweel, any Patient whose Personal Data are contained in the Platform has previously expressed his freely given, specific, informed and explicit consent to the processing of his Personal Data through the Platform and for all the purposes consistent with this Agreement; 5.2.c. the processing of any Data by Awell on Client’s behalf will not breach any applicable Laws (including, without limitation, data protection Laws, privacy Laws, etc.); 5.2.d. it has provided third parties or authorities with all required information about the Awell’s processing of Personal Data, and these third parties or authorities have given their consent or approval to such processing; 5.2.e. in case of unauthorized access to its Admin or User Accounts, it will notify Awell, the affected Patients and authorities as required by the Laws; 5.2.f. it will provide Awell – at the latter’s simple request – with written evidences of the warranties and representations above.
SECT. 6 – FEES AND PAYMENT TERMS.
6.1. Fees. The Client will pay an annual, pre-paid and non-reimbursable fee for the use of the Platform, as specified in the applicable order, based on the number of User Accounts available to the Client in the Admin Account and regardless of whether these User Accounts are actually assigned to and used by a User. In addition to these fees, the Parties may agree professional services costs for activities requested by Client to Awell (such as, Pathways customization, integration with electronic medical records (EMRs), training, etc.), according to a price quote sent to, and accepted by, the Client. Upon agreement, such services will be invoiced as specified below. Furthermore, Client agrees and acknowledges that the information regarding the amount of available User Accounts is essential for Awell to proceed with the activation of the Platform on behalf of the Client and related invoicing for the initial Term. 6.2. Invoicing terms. Upon written agreement of the price quote, 50% (fifty percent) of the setup costs and 50% (fifty percent) of the first year license costs based on the number of requested User Accounts will be invoiced. The remaining 50% (fifty percent) of both setup cost and first year license costs will be invoiced upon completion of the implementation. Awell will issue the invoice for subsequent Terms in the first month of each Term. 6.3. Fees recalculation due to Users addition. If the Client requires more User Accounts than covered by the fee paid by the Client at the beginning of a Term, the Client may submit a written request (via email) for additional User Accounts at any time during that Term. A request for additional User Accounts in accordance with this provision will trigger a recalculation of the license cost based on the plan grid in the applicable offer. Additional User Accounts will be invoiced at the time the request is submitted by the Client.. The fee due for additional User Accounts in the ongoing Term will be calculated on a pro rata basis based on the number of remaining months in the Term, including the month in which the request was submitted. After pro rata invoicing for the remaining months in the ongoing Term, the additional User Accounts will be added to the total number of User Accounts for the invoice for the next Term (e.g. if the Client requested and paid for 20 User Accounts in the first month and requested an additional 10 User Accounts in the third month of a running Term, Awell will issue an invoice for 10/12 of the fees due for 10 users in month 3. The invoice for the next Term will be for 30 users and it will be issued in month 13, i.e. the first month of the next Term). If the total number of User Accounts of the Client after the request for additional User Accounts exceeds the maximum of the rate applied to the Client at the beginning of the Term, the reduced rate per User Account will first be applied to the Term following the request for additional User Accounts. 6.4. Fees recalculation due to Users reduction. If the Client wants to reduce the amount of User Accounts, the Client will submit a request in the Admin Account at the latest 45 (forty-five) calendar days prior to the expiration of the ongoing Term. The Client will not be entitled to reimbursement of the fees for the Term in which the request was submitted. The possible increase of the applicable rate resulting from the total amount of available User Accounts dropping below the minimum, will first be applied in the Term following the request for reduction in User Accounts. 6.5. Payment terms. Invoices will be paid by the Client within 30 (thirty) calendar days of the invoice date on the account number indicated on the invoice. Invoices will be in EUR and VAT applies. The Client is not entitled to set off or withhold any claims against any amount payable to Awell.
6.6. Late payments. In case of late payment of invoices, Awell is entitled to charge interest on the overdue amount in accordance with the Belgian Act of 2 August 2002 (“Wet betreffende de bestrijding van de betalingsachterstand bij handelstransacties”) as well as a fixed administrative fee of EUR 100,00 (one hundred/00) per reminder sent to the Client. Awell will have the right to suspend the Client’s Admin and User Accounts in case the Client fails to perform timely and complete payment of open invoices. Such suspension will not affect Awell’s right to full payment of the open invoice. Failure to perform payment of an invoice within 30 (thirty) calendar days of the suspension of an account or written notice by Awell will be considered a material breach of this agreement by the Client in accordance with Sect. 8.2 of this Agreement.
SECT. 7 – PROPRIETARY RIGHTS 7.1. Awell ownership. Awell holds and retains all and any title and interest in and to the Platform, as well as in all trade names, trademarks and service marks associated or displayed with the Platform. Nothing in this Agreement will be interpreted as a transfer, in whole or in part, of rights in the Platform to the Client, the Users or any other third party. 7.2. Client obligation for Awell ownership preservation. Client must not, and must not cause or permit others to:
7.2.a. remove or modify any program markings or any notice of Awell’s or its licensors’ proprietary rights; 7.2.b. make the programs or materials resulting from the Platform (excluding the Data for which it has an express authorization) available in any manner to any third party for use in such third party’s business operations; 7.2.c. modify, make derivative works of, disassemble, decompile, reverse engineer, reproduce, distribute, republish or download any part of the Platform, or access or use the Platform in order to build or support, and/or assist a third party in building or supporting, products or services competitive to Awell; 7.2.d. perform or disclose any benchmark or performance tests of the Platform or any associated infrastructure (such as, without limitation, network discovery, port and service identification, vulnerability scanning, password cracking, remote access testing, penetration testing, etc.); and 7.2.e. license, sell, rent, lease, transfer, assign, distribute, host, outsource, permit timesharing or service bureau use, or otherwise commercially exploit or make available the Platform to any third party. 7.3. Use of Client’s name, trademarks or logos. Client agrees to Awell the right to mention the Client’s name, trademarks or logos as reference or case-study in the Awell’s websites, presentations, marketing activities or materials, or in proposals to be sent by Awell to its clients.
SECT. 8 – TERM AND TERMINATION. 8.1. Initial Term and renewal. The initial Term of this Agreement is 2 (two) years as from the Effective Date. This Agreement will be automatically renewed for additional terms of 1 (one) year each, unless either Party provides written notice at the latest 1 (one) month before the end of the Term, original or renewed.
8.2. Termination in case of breach. This Agreement may be immediately terminated by a Party if the other Party breaches any material obligation of this Agreement and fails to remedy such breach within 10 (ten) days after receiving a written notice from the non-defaulting Party requiring it to remedy the breach. 8.3. Other cases of termination. The User’s right to use the Platform terminates upon the termination of the Client’s license and/or upon the termination of the User’s employment or contract with the Client. In such case, Client shall revoke that User’s access to the User Account in the Admin Account. 8.4. Payments after termination. Any termination by Awell under this Section shall not excuse Client from its obligation to make payment(s) under this Agreement. 8.5. No access after termination. The termination of this Agreement will automatically terminate all licences and rights of use granted by Awell under this Agreement. Following termination by either Party for whatever reason, the access to the Admin Account and the User Accounts will be revoked by Awell as from the effective date of the termination. The Client will be entitled to export a copy of the Anonymized Data as it exists on the date of termination, in accordance with previous Sect. 5.6. 8.6. Obligations surviving termination. Provisions that survive termination or expiration of this Agreement are those relating to limitation of liability, indemnification, payment and others which by their nature are intended to survive.
SECT. 9 – DISCLAIMER OF WARRANTY – LIMITATION OF LIABILITY 9.1. Disclaimer of warranty. The Platform is made accessible to the Client on an ‘as is’ basis. To the maximum extent permitted by the applicable Laws, Awell expressly disclaims all warranties of any kind, express or implied, including without limitation any warranty of merchantability, fitness for a particular purpose or non-infringement. In particular, without limiting the foregoing, Awell makes no warranties:
9.1.a. that the Platform will meet Client’s requirements; 9.1.b. that the Platform will be uninterrupted, timely, secure, or error-free; 9.1.c. that the quality of the Platform and/or any services, products or information purchased or obtained by Client or User through the Platform will meet any Client’s expectations; and 9.1.d. that any errors in the Platform will be corrected. 9.2. Limitation of liability. To the maximum extent permitted by applicable Laws, Awell’s entire liability under this Agreement will in any case be limited to the total amount paid and payable by the Client in the Term in which the event or action giving rise to such liability occurred. Notwithstanding the preceding, in no event Awell will be liable or responsible, under any circumstance at any time, to Client, Users, Patients and/or any third party for:
9.2.a. any loss or corruption of Data and/or software stored on Client’s, User’s or Patient’s smartphone, computer, hardware (including, without limitations, hard drives, memory modules, or external USB devices, etc.), use of system(s) or networks arising out of the Platform; 9.2.b. any act or omission, including negligence, by Awell and/or its employees, affiliates and representatives; 9.2.c. any harm caused by any third-party authorized user, including individuals who were not authorized to have access to the Platform but who were able to gain access because usernames, passwords or accounts were not terminated on a timely basis in Client or User local identity management infrastructure, or Client/User local computers;
9.2.d. any special, consequential. indirect or similar damages, including any lost profits or lost Data arising out of the access of the Platform even if Awell has been advised of the possibility of such damages.
SECT. 10 – INDEMNIFICATION 10.1. Indemnification. Client shall indemnify and hold Awell harmless from and against all damages, losses, and expenses of any kind (including reasonable legal fees and costs) arose by any claim made by any third party (including, without limitation, any agency, public administrations, entities, etc.) against Awell in connection with any Client’s and/or User’s: 10.1.a. violation or breach of any term of this Agreement; or 10.1.b. violation of any applicable Laws, whether or not referenced herein; or 10.1.c. violation of any rights of any third party; or 10.1.d. use or misuse of the Platform. 10.2. Remedies. Client expressly agree and acknowledge that any violation of its obligations pursuant to this Agreement may cause Awell irreparable harm and damage, which may not be recovered at law. Therefore, Client agree that Awell’s remedies for breach of this Agreement may be in equity by way of injunctive relief, as well and any other relief available, whether in law or in equity.
SECT. 11 – MISCELLANEOUS 11.1. Confidentiality. During the term of this Agreement and following the termination thereof, the Client shall hold the Awell’s Confidential Information in the strictest confidence and shall not, directly or indirectly, except to Users who need to have access to such information for the purpose of this agreement: (i) transmit or disclose any Awell’s Confidential Information to any person, concern, or entity; (ii) make use of any such Confidential Information, directly or indirectly, for its benefit or for others; or (iii) copy, reproduce, modify, decompile, or reverse engineer any Awell’s Confidential Information. 11.2. Assignment. Client shall not transfer or assign this Agreement or any right granted by it without the prior written consent of Awell. Awell may transfer or assign its rights and obligations under this Agreement by providing written notice to the Client, and the transfer will be effective 2 (two) weeks after the date of such notice. 11.3. Independent entities. Awell is an independent contractor, so no partnership, joint venture, or agency relationship exists between Awell and Client. Awell and Client are each responsible for paying their own employees, including employment related taxes and insurance. 11.4. Force majeure. Awell shall not be responsible for any failure to perform due to unforeseen circumstances or to causes beyond Awell’s reasonable control, including but not limited to acts of God, war, riot, embargoes, acts of civil or military authorities, fire, floods, accidents, strikes, lockouts, or shortages of transportation, facilities, fuel, energy, labor or materials. In the event of any such delay, Awell will be excused from such performance to the extent it is delayed or prevented by such cause. 11.5. No implied waiver. Any tolerance or silence by Awell, even if on a continuous and reiterated basis, in relation to any breach or default by Client or User of any provision of this Agreement shall not be considered as a consent to such breaches and defaults and shall not affect the validity of the clause breached nor shall be construed as a waiver to any of the rights pertaining to Awell pursuant to this Agreement.
11.6. Governing law and exclusive jurisdiction. This Agreement is governed by the substantive and procedural Laws of the State of Kingdom of Belgium. Any dispute in relation to this agreement will be subject to the jurisdiction of the Dutch language section of the Brussels commercial court (“Nederlandstalige rechtbank van koophandel Brussel”). This provision is without prejudice to Awell’s right to seek injunctive relief against the Client before any court having jurisdiction to grant such relief. 11.7. Modification / Amendments. No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, will be effective unless in a writing signed by the parties. 11.8. Severability. Should any part of this Agreement be declared illegal or unenforceable, the remaining portion will remain in full force and effects. The Parties will replace the invalid or unenforceable clause by a provision that is valid and enforceable and that produces the effect of the affected clause to the maximum extent permitted by Laws. 11.9. Entire agreement. This Agreement constitutes the entire agreement between the Parties with respect to its subject matter and it supersedes all prior or contemporaneous agreements concerning such matter.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by and through their duly authorized representatives, as of the Effective Date.