Headspace Health

Services Agreement

This Services Agreement (“Agreement”) is effective as of the last date of signature on the Order Form (the “Effective Date”) and is between Headspace, Inc., located at 2415 Michigan Avenue, Santa Monica, CA 90404 and its affiliates (“Headspace Health”, “us”, or “we”), and the customer identified on the Order Form. Spoiler alert: the customer is you. In this Agreement we’ll refer to you as “Customer”, “you”, or “your”. This Agreement includes the terms that apply the services you’ve selected on the Order Form. Speaking of parties, we like them around here, so let’s call Headspace Health and Customer each a “Party”, and we’ll refer to both as “Parties”.

Part 1: Definitions- Setting the table.

“Applicable Law” means any United States and international laws and regulations that apply to a Party in its performance of this Agreement.

“Customer Content” means any materials or other information which is made available to us by you (or on your behalf), including but not limited to trademarks, trade names and service marks for any customization of the Customer Services for you.

“Customer Services” means the Headspace Customer Services, the Ginger Customer Services, or both, depending on your product selections on the applicable Order Form. Each of these are defined in Section 2.

“Eligible Members” means individual employees or members and their dependents, as specified by Customer.

“Headspace Health IP” means the Headspace IP and the Ginger IP, each as defined in Section 2.

“Intellectual Property Rights” means all copyrights, patent rights, trade secret rights, trademark rights, mask work rights, and all other intellectual property rights.

“Member Services” means the Headspace Member Services, the Ginger Member Services, or both, depending on your product selections on the applicable Order Form. Each of these are defined in Section 2.

“Order Form” means the document used to place an order for the Customer Services, including any addenda and supplements. Order Forms are mutually agreed to by the Parties and are incorporated into the Agreement by reference.

“Registered Members” means Eligible Members who have registered and created an account to receive the Member Services.

Part 2: Products and Services- Why we’re here.

Headspace Health offers Headspace For Work, the Ginger on demand mental health platform, and additional services (together, the “Headspace Health Products”). Below are descriptions of each. One or both may apply to you depending on what you select on the Order Form.

Part 3: Term, Termination and Payments: The nuts and bolts.

This section covers the length of the Agreement, how it may come to an end, and payment obligations.

3.1 Term & Termination.

(a) Term of the Agreement. This Agreement begins on the Effective Date and will continue for the Initial Term listed on the Order Form. This Agreement will automatically renew for the time periods listed on the Order Form (we’ll call these additional periods “Renewal Terms”), unless either Party gives the other notice of non-renewal at least sixty (60) days before the end of the Initial Term or the then-current Renewal Term. The entire period of effective Agreement is called the “Term” and includes both the Initial Term and any Renewal Terms.

(b) Termination for Cause. We sincerely hope that this won’t be relevant, but just in case, if either Party materially breaches this Agreement the other Party may terminate the Agreement by providing written notice thirty (30) days in advance. That said, if the breaching Party responds to a notice of termination by curing the breach to the reasonable satisfaction of the other Party within the thirty (30) day period, the Agreement will remain effective. Either Party may also terminate the Agreement if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.

(c) Termination Effects. If we do part ways and the Agreement terminates or expires, we’ll dry our eyes and keep our promises- neither Party will be relieved of its obligations agreed upon prior to the termination. We will return or destroy all Customer Data, other than Aggregated Data, in the manner and on the schedule as required by Applicable Law, and if you terminate the Agreement for cause as outlined in 3.1(b), we’ll reimburse the pro rata portion of any Fees covering the unused Customer Services following the date of termination. Any provisions that by their nature are intended to survive, shall survive the termination or expiration of this Agreement, including without limitation Parts 3-5.

3.2 Payment Terms.

(a) Fees. You agree to pay all fees listed in the Order Form (we’ll call fees the “Fees”- go figure). Unless the Order Form says otherwise, Fees are based on services purchased, regardless of whether they are used. Payment obligations can't be canceled and Fees paid aren't refundable.

(b) Timing. Unless the Order Form says otherwise, Fees are due thirty (30) days from the date of the invoice. You’re responsible for providing us with complete and accurate billing and contact information and notifying us of any changes.

(c) Overdue Payments. If you don't make payment on time, we may, upon 15 days’ notice, suspend the Headspace Health Products under this Agreement until payment is made. As an alternative, we may accrue late interest at the rate of 1.5% of the outstanding balance per month (or the maximum rate permitted by Applicable Law, whichever is lower). You also agree to pay all reasonable legal fees and other costs of collection we may incur arising from the breach of your payment obligations.

(d) Taxes. You are responsible for any federal, state or local sales, use or value-added taxes based on the services performed or payments made under this Agreement.

Part 4: IP and Confidentiality Terms: Who owns what.

This section covers the ownership of intellectual property related to the Agreement and the confidentiality of the information exchanged between us.

4.1 Intellectual Property, Data Ownership and License Grants.

(a) Ownership. Please see Section 2 for ownership rights concerning the product offerings you have selected.

(b) Restrictions. You agree not to: (i) create derivative works based on the Headspace Health IP; (ii) copy, frame or mirror any part or content of the Headspace Health IP; (iii) reverse engineer the Headspace Health IP; or (iv) access the Headspace Health IP in order to (a) build a competitive product or service or (b) copy any features, functions or graphics of the Headspace Health IP.

(c) Registered Member Data. “Registered Member Data” means, as relevant to your selected product offerings, (i) all data and results collected through the Headspace App or Ginger Platform by us from Registered Members, and (ii) all data and results collected through the Ginger App or Ginger Platform by us from Registered Members, or from Providers or Coaches in providing the Member Services to Registered Members. Ownership of Registered Member Data is described in the Member Terms. Communications between Registered Members and Providers are considered protected health information under HIPAA and are subject to protection under patient-clinician privilege. For clarity, Customer has no right to end user protected health information or Registered Member Data under this Agreement or the Member Terms.

(d) “Customer Data” means data that is not Registered Member Data and that is contained in: (i) eligibility files provided to us by you and (ii) reports specific to Customer generated by Headspace Health and provided to you regarding the use of the Ginger App or Headspace App by Registered Members on an aggregated, de-identified basis, such as reports regarding the percentage of Registered Members who use the Headspace App or Ginger App each month or quarter. You own all Customer Data.

(e) License Grants.

(i) Customer Data. You grant us the non-exclusive, worldwide, royalty-free license (the “License”) to use Customer Data to perform the Customer Services for your benefit and to make the Member Services available. You also grant us the License to aggregate, anonymize or otherwise de-identify the Customer Data, and to use this de-identified to develop or improve our Customer Services and Member Services; this includes creating derivative works from such data.

(ii) Customer Content. You grant us the License to use the Customer Content to deliver the Customer Services, such as creating custom landing pages and engagement materials. We do this for all of our Customers.

(iii) Feedback. If you or your employees provide us with the gift of feedback, you grant us the License to incorporate such feedback into our products, Customer Services or Member Services without any payment or other consideration owed to you.

4.2 Confidential Information.

(a) What is it? “Confidential Information” is any proprietary information provided by a Party to the other Party that is (a) is marked or declared “Confidential” or “Proprietary” or in some other manner to indicate its confidential nature or (b) by its nature is normally and reasonably considered confidential. Examples of Confidential Information include, but are not limited to, information regarding products, pricing, methodology, research, customers, business partners, business plans, any information which provides a competitive advantage, and the terms of this Agreement.

(b) What isn’t it? Information isn’t Confidential Information if (i) it was already made publicly known and generally available by the disclosing Party; (ii) after it’s disclosed to the receiving Party, it becomes publicly known and generally available, not through action or inaction of the receiving Party; (iii) is already known lawfully and without restriction by the receiving Party at the time of disclosure; or (iv) is independently developed by the receiving Party without any reliance on the confidential information of the disclosing Party.

(c) How we’ll treat it. Each Party will (a) treat all Confidential Information of the other Party as it treats its own Confidential Information (assuming at least a reasonable degree of care), (b) not disclose the other Party’s Confidential Information to any third Party, except on a “need to know” basis to third parties that have signed a non-disclosure agreement containing similar confidentiality obligations as those in this Agreement, and (c) will not, and will not permit any third Party to, use such Confidential Information except in connection with performing its obligations or exercising its rights under this Agreement. Each Party may disclose the other Party’s Confidential Information if required by Applicable Law so long as the disclosing Party, if legally permitted, is given prompt written notice of such requirement prior to disclosure.

Part 5: Warranty & Disclaimers, Liability and Indemnification.

5.1 Warranties & Disclaimers.

(a) Warranties. Each Party represents and warrants to the other that it has full power and authority to enter into this Agreement and to contract with the other as contemplated by this Agreement, and that nothing contained in this Agreement or in the performance of this Agreement will place the Party in breach of any other material contract or obligation. Each Party also warrants to the other that the person signing this Agreement on its behalf has the authority to do so. We represent and warrant that the Customer Services will be provided in accordance with all Applicable Laws and government regulations and conform to or exceed the standards generally observed in the industry for similar services. We’ll keep trying to improve our products, but the parties agree that no purchase is contingent on the delivery of any future functionality, features or content, nor is it dependent on any oral or written public comments made by Headspace Health regarding future functionality or features. We also promise to make commercially reasonable efforts to ensure that the Services are available 24/7/365. You represent and warrant that you have complied with Applicable Law in connection with the Customer Data and have obtained all rights and permissions necessary to use the Customer Data as contemplated by this Agreement, and that you will not resell, rent or lease the Customer Services or Member Services.

(b) Disclaimers. The Headspace Health IP, the Customer Services, and the Member Services, along with any professional services or Supplemental Services are provided “as is” without warranty of any kind and we make no additional representation or warranty of any kind whether express, implied (either in fact or by operation of law), or statutory, as to any matter whatsoever. We expressly disclaim all implied warranties of merchantability, fitness for a particular purpose, quality, accuracy, title and non-infringement. We do not warrant against interference with the enjoyment of Headspace Health IP or Member Services. We do not warrant that the Headspace Health IP, the Member Services, the Customer services or any professional services are or will be error-free or that their provision will be secure or uninterrupted or make any other representations regarding the use of, results of the use of, the Headspace Health IP, Customer Services, the Member Services or any professional services. Customer will have no right to make or pass on any representation or warranty on behalf of Headspace Health to any third party. These disclaimers will apply despite the failure of the essential purpose of any limited remedy provided herein.

5.2 Liability of the Parties.

(a) Exclusion of Consequential and Related Damages. Neither Party will, under any circumstances, be liable to the other Party for consequential, incidental, special, punitive, or exemplary damages, whether foreseeable or unforeseeable, including but not limited to instances of loss of data, lost profits or loss of business, regardless of the theory of liability or whether such Party has been advised of the likelihood of such damages occurring.

(b) Limitation of Liability. Except for a Party’s gross negligence or willful misconduct, breach of Section 4.2 (Confidential Information), or amounts awarded to third parties or agreed in settlement of civil litigation in connection with the indemnification obligations in Section 5.3, under no circumstances will a Party’s total liability of any kind arising out of or related to this Agreement (including but not limited to warranty claims), regardless of the theory of liability, exceed the amount paid (or with respect to fees due, payable) by Customer under this Agreement in the twelve months preceding the event giving rise to liability.

(c) Independent Allocations of Risk. Each provision of this Agreement that provides for a limitation of liability, disclaimer of warranties, or exclusion of damages is to allocate the risks of this Agreement between the Parties. This allocation is reflected in the agreed upon compensation and is an essential element of the basis of the bargain between the Parties. Each of these provisions is severable and independent of all other provisions of this Agreement, and each of these provisions will apply even if the warranties in this Agreement have failed of their essential purpose.

5.3 Indemnification.

(a) By Us. We will indemnify, hold harmless and defend you from and against, and will pay any damages and costs finally awarded against you or agreed in settlement by us (including reasonable attorneys’ fees) resulting from, any third-party claim (a) arising out of our breach of a warranty in Part 5.1(a) , or (b) that the use of the Headspace Health IP contemplated in this Agreement infringes the U.S. patent, copyright or trademark rights of a third-party. If use of the Headspace Health IP is (or in our opinion is likely to be) enjoined, we may: (a) substitute for the Headspace Health IP substantially functionally similar programs and documentation; (b) procure the right to continue using the Headspace Health IP; or if (a) and (b) are not possible after reasonable commercial efforts from us, (c) we may terminate the Agreement and will refund you the unused Fees paid by you. Exclusive Remedy. The rights and remedies granted to you under this section state our entire liability, and your sole and exclusive remedy, with respect to actual or alleged infringement of third-party Intellectual Property Rights by the Headspace Health IP.

(b) Process. As conditions to indemnification, the Party seeking indemnification must provide detailed written notice to the indemnifying Party promptly after learning of the claim, and the indemnifying Party shall not be obligated to indemnify to the extent it is materially prejudiced by any delay in such notice. The indemnifying Party must have the right to assume control of the defense and settlement of the claim, and the indemnified Party must provide reasonable assistance at the indemnifying Party’s reasonable expense, provided that the indemnified Party shall not be obligated to participate in any settlement pursuant to which the indemnified Party is required to admit liability or pay any amount other than amounts concurrently reimbursed by the indemnifying Party. Where a Party has an obligation to defend in this Agreement, the other Party may retain its own counsel at its own expense to participate in its defense, but that expense shall not be included in the defending party’s payment obligation.

Part 6: General Legal Terms.

Stick with us, this is the homestretch. It includes the remaining legal terms that are standard in a commercial contract.

6.1 Compliance: Let’s do the right thing.

Each Party agrees to materially comply with any Applicable Laws.

6.2 Insurance: Peace of mind.

Each Party shall carry insurance in customary and appropriate coverage amounts during the Term.

6.3 Independent Contractors: We’re together, just in spirit.

This Agreement doesn’t create a joint venture, partnership, employment or agency relationship between either Party or its employees or contractors. We can’t represent, bind, obligate or contract on behalf of the other just by virtue of entering into this contract.

6.4 Notices: Don’t be a stranger.

Any notice required or permitted to be given under this Agreement will be effective if it is in writing and sent by (a) postal mail to the address listed in the most recent Order Form, “Attn: Legal”, or (b) by electronic mail to legal@headspace.com in the case of Headspace Health, and the email address listed on the Order Form in the case of Customer. Either Party may change its address for receipt of notice by written notice to the other Party in accordance with this Section. Notices are deemed given two (2) business days following the date of sending.

6.5 Assignment.

Neither Party may assign its rights and obligations under this Agreement without the written consent of the other Party, except that a Party may, without the consent of the other Party, assign this Agreement to a successor to all or substantially all of its business that pertains to this Agreement, whether by merger, acquisition, operation of law, sale, or otherwise. Non-permitted assignments are void. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the Parties and their successors and permitted assigns.

6.6 Force Majeure: It’s a crazy world, stuff happens.

If performing under this Agreement is impossible for any of the reasons listed below, the nonperforming Party will be excused. These reasons are: strike of a Party’s employees, fire, flood, governmental acts, civil unrest, acts of terrorism, epidemic, or any other instance where failure to perform is beyond reasonable control of the Party that does not perform. If the period continues for sixty (60) or more days, then the Party that is able to perform is entitled to terminate this Agreement by giving notice to the nonperforming Party. The relief offered by this Section is the exclusive remedy available with respect to the delays described in this Section.

6.7 Governing Law: California Love.

This Agreement will be interpreted using California law, but we agree to disregard provisions related to choice of laws or conflict of laws. Any proceeding relating to this Agreement or the subject matter in it shall be brought in federal or state courts located in Los Angeles, California and each party hereby generally and unconditionally submits to and accepts the jurisdiction of such courts. The provisions of the United Nations Convention on the International Sale of Goods shall not apply to this Agreement.

6.8 Dispute Resolution: Let’s play nicely.

The Parties agree that any dispute relating to this Agreement or your use of the Customer Services may be resolved by arbitration at our sole discretion, in which case you waive any right to participate in a class-action lawsuit or class-wide arbitration. Arbitration will be initiated through the American Arbitration Association ("AAA"). If the AAA is not available to arbitrate, the Parties will select an alternative arbitral forum. All costs associated with arbitration are to be split evenly between the Parties. The arbitrator will decide the jurisdiction of the arbitrator and the rights and liabilities, if any, of Customer and Headspace Health. The arbitrator will have the authority to award all remedies available under Applicable Law, the arbitral forums rules, and the terms of arbitration. The award of the arbitrator is final and binding upon the Parties. Notwithstanding the above, either Party may bring a claim related to Intellectual Property Rights, or seek temporary and preliminary specific performance and injunctive relief, in any court of competent jurisdiction, without the posting of bond or other security. The prevailing Party in any lawsuit arising from or relating to this Agreement is entitled to recover reasonable attorneys’ fees.

6.9 Severability: don’t throw the baby out with the bathwater.

If a tribunal or court of law decides that any provision of this Agreement is illegal, invalid or unenforceable, the remaining provisions of the Agreement will not be affected. In addition, the court or tribunal shall be empowered to substitute, to the extent enforceable, provisions similar to the unenforceable provision, or other provisions, so as to provide to the Parties the benefits intended by the unenforceable provision to the fullest extent permitted by applicable law.

6.10 Third Party Beneficiaries.

Neither Party intends that this Agreement be read to confer any rights or remedies upon any person or entity that is not a Party to this Agreement.

6.11 Publicity.

With your prior written consent, we may use your name and logo in listings of our customers on our websites and in other public statements or disclosures to market the Customer Services and the Member Services. You may externally publish and promote the existence or nature of your working relationship with us with our prior written consent. Notwithstanding the foregoing, you have the right to display and reference our name, logo, or trademarks with respect to internal communications.

6.12 Amendment & Waiver: Let’s get it in writing.

For any changes to the Agreement to be effective, the we’ll agree in a signed writing which will be incorporated into the Agreement. If a Party does not enforce a portion of the Agreement, that does not affect the Party’s ability to enforce it in the future.

6.13 Entire Agreement: The whole shebang.

Unless the Agreement is changed through a signed amendment (see above), the Agreement represents the entire understanding between the Parties as it relates to the subject matter. Unless they are incorporated into the Agreement, no statements, emails, text messages, proposals, notes on a cocktail napkin or elevator conversations are included in the Agreement.

v.20220629