BY EXECUTING AN ORDER FORM OR STATEMENT OF WORK (EACH AN “ORDER FORM”) THAT REFERENCES THESE MASTER TERMS AND CONDITIONS (COLLECTIVELY, THIS “AGREEMENT”) TWIC, INC. dba FORMA (“FORMA”) AND THE PARTNER IDENTIFIED IN THE ORDER FORM (“PARTNER”) AGREE TO BE BOUND BY THESE MASTER TERMS AND CONDITIONS IN CONNECTION WITH THE PROVISION, MARKETING AND SALE OF PARTNER’S PRODUCTS TO CUSTOMERS THROUGH THE FORMA SERVICES PURSUANT TO THIS AGREEMENT.
This Agreement, by and between Forma and Partner, is effective as of the Effective Date set forth in the Order Form. Capitalized terms not defined herein shall have the meaning set forth in the Order Form. Forma and Partner
In addition to terms defined in the body of the Agreement, as used in this Agreement:
- “Customer” means a third party person or entity located in the Territory who licenses or purchases a Product through Forma Services.
- “Forma Services” means Forma’s proprietary platform an online marketplace for providing benefits products to its Customers.
- “Intellectual Property Rights” means any and all now known or hereafter existing (a) rights associated with works of authorship, including copyrights, mask work rights, and moral rights; (b) trademark, service mark, trade dress and similar rights; (c) trade secret rights; (d) patents, patent rights, and industrial property rights; (e) layout design rights, design rights, and other proprietary rights of every kind and nature; and (f) all registrations, applications, renewals, extensions, or reissues of the foregoing, in each case in any jurisdiction throughout the world.
- “Partner Marks” means the trademarks and trade names of Partner that are provided to Forma by Partner for use in connection with the marketing and sale of the Products in the Territory through Forma Services.
- “Product” means a benefits product provided by Partner for marketing and sale through the Forma Services, and may include any of a Digital Product, Physical Goods, or a Subscription Service, as set forth in the Order Form or otherwise agreed by the parties to be offered through the Forma Services.
- “Subscription Service” means a membership or subscriber enrollment-based service, where a fulfillment channel is maintained between Forma and Partner to maintain a list of subscribing Customers.
- “Digital Product” means a software product such as a mobile app or website, delivered to a Customer via a code, custom URL, login credentials, or other means for accessing a digital product.
- “Physical Goods” means tangible products, for example products for maintaining or improving an individual’s health and wellness, generally delivered to a Customer via drop shipment from Partner or their agent or third party provider, unless otherwise specified in an applicable Order Form.
- "Territory” means worldwide, unless otherwise specified in the Order Form.
2. Forma Services; Licenses
Forma will use commercially reasonable efforts to market and promote the Products through the Forma Services in the Territory. When a Customer places an order for a Product on the Forma Services, Forma will process and collect the initial payment for such order from Customer and then pass the transaction and Customer details to Partner, who will then be solely responsible for entering into any and all end user licenses and other applicable agreements with such Customer. Except to the extent Forma has agreed to deliver applicable access codes or URLs provided by Partner (e.g., for Digital Products), Partner shall be solely responsible for providing access to, or otherwise delivering and distributing, the Product to such Customer, along with all support and maintenance obligations agreed to between Partner and the Customer. Subject to the terms and conditions of this Agreement, Partner hereby grants to Forma a non-exclusive, non-transferable (except as permitted in Section 10.4 below), right and license to market, promote and facilitate the sale of the Products to Customers through Forma Services in the Territory and collect payments for the sale of such Products as provided in Section 3. Forma will not be liable to Partner: (i) if it does not proceed with a transaction that would exceed any limit established by Forma for a security reason, or (ii) if Forma permits a Customer to withdraw from a transaction because Forma Services or the Products are unavailable following the commencement of a transaction.
Marketing Collateral; Trademark License.
Partner may deliver to Forma general information and marketing materials related to the Products, including electronic brochures, marketing publications or other electronic media (collectively, “Marketing Collateral”). Subject to the terms and conditions of this Agreement and any marketing guidelines provided by Partner to Forma from time to time, Partner grants to Forma, during the term of this Agreement, a limited, nonexclusive, nontransferable (except as permitted in Section 10.4 below) license to use the Marketing Collateral and Partner Marks on and in connection with Forma Services for the sole purpose of promoting, marketing, and supporting the sale of the Products to Customers in the Territory as permitted under this Agreement. Forma acknowledges that Partner may, in its sole discretion, amend or modify any of the Marketing Collateral from time to time to supplement, remove, or correct information or as necessary for formatting and layout purposes. To the extent Partner delivers Marketing Collateral to Forma Partner is solely responsible for the accuracy and content of such Marketing Collateral. Forma acknowledges Partner’s exclusive ownership of the Partner Marks. At Partner’s request, Forma will modify or discontinue any use of the Partner Marks if Partner determines that such use does not comply with Partner’s then-current trademark usage policies and guidelines.
Forma’s Customers and users of Forma Services will not automatically be deemed Partner’s customers, and any and all data and information collected by Forma through the Forma Services from Customers (“Customer Data”) shall be, as between Partner and Forma, owned by Forma.
As between Partner and Forma, the Products and the Partner Marks, and all worldwide Intellectual Property Rights in each of the foregoing, are the property of Partner. As between Partner and Forma, the Forma Services and all related technology and all worldwide Intellectual Property Rights in the foregoing are the property of Forma.
Warranty Claims / Customer Complaints.
If Forma receives a warranty claim with respect to Physical Goods or complaint with respect to any Products, it will promptly provide the relevant details to Partner, who will then be solely responsible for handling such warranty claim or complaint with the Customer, including providing all applicable support services to such Customer.
3. Partner Restrictions and Obligations
In connection with using or accessing the Forma Services, Partner will not: (a) fail to provide, deliver or support Products sold through the Forma Services; (b) intentionally provide false, inaccurate, misleading, deceptive, defamatory, or libelous content; (c) use any robot, spider, scraper, data mining tools, data gathering and extraction tools, or other automated means to access Forma Services for any purpose; (d) disassemble, de-compile or otherwise reverse engineer the Forma Services or otherwise attempt to learn the source code or algorithms underlying the Forma Services; (e) circumvent any technical measures Forma uses to provide the Forma Services; (f) infringe or misappropriate any Intellectual Property Rights that belong to third parties or provide content that is not owned by Partner; or (g) develop or directly or indirectly commercialize any products or services that compete with any Forma Services.
For each type of Product to be offered to and purchased by Customers pursuant to this Agreement, Partner will be responsible for delivering or fulfilling such purchases, or providing Forma with the necessary codes or other data or information necessary for Forma to facilitate fulfillment of such purchases, as applicable. For example:
- For Digital Products (e.g., digital health apps, online wellness or mental health services, etc.), Partner will provide Forma with applicable promotional codes, URLs, login credentials, or other data or information that will be delivered by Forma to fulfill each purchase and allow a corresponding Customers to access the applicable Digital Product.
- For Physical Goods (e.g., exercise equipment, smart watches, office equipment, or other products related to an individual’s health and wellness), Partner shall be responsible for fulfillment and delivery of purchased Products, via drop shipment to the purchasing Customer unless otherwise specified in an applicable Order Form.
- For Subscription Services (e.g., gym memberships, grocery delivery services, or other membership or non-digital subscription services) Forma will provide a list of Customers who purchase a membership or subscription to such Subscription Service, and Partner shall be responsible for enrolling the Customers as applicable and delivering the corresponding Subscription Services.
Partner will maintain a staff of customer service personnel sufficient to meet the needs of and support the Customers and Products. Partner will ensure that such personnel are properly trained with regard to the Products.
Compliance with Laws.
Partner will at all times comply with applicable laws and regulations and refrain from any unethical or other conduct that damages the reputation of Forma or the Forma Services.
4. Fees and Payment
Unless otherwise set forth in an appliable Order Form, (a) Forma shall directly collect from and process Customers’ payments (through a third party payment processor) for Products sold at the Forma list price or other price agreed-upon by the Parties; (b) Partner will invoice Forma monthly the applicable Forma invoice price or other applicable fees set forth in the Order Form (collectively, the “Fees”) for all Products purchased through the Forma Services in the corresponding month; (c) and Forma shall pay Partner the invoiced Fees within thirty (30) days of receipt of each undisputed invoice. Unless otherwise set forth in an applicable Order Form, the difference between the list/sales price of a Product ordered through the Forma Services and the invoiced Fees due from Forma to Partner for such Product shall be retained by Forma (the “Forma Share”). The Forma Share is nonrefundable and Partner will be solely responsible and liable for any refunds due to any Customer.
Each party will be responsible for its own tax liability and the payment of all taxes, and any related penalties and interest, arising from the payments to such party under this Agreement.
“Confidential Information” means, whether or not labeled “confidential” and whether in written, oral, visual, electronic or other form, any and all non-public technical, proprietary, financial, strategic, commercial or business information, development and marketing plans, strategies, financial information, Customer Data, and all information of third parties that the disclosing Party has an obligation to keep confidential. The Party receiving information (the “Recipient”) will use any Confidential Information of the other Party (the “Disclosing Party”) solely to exercise its rights or perform its obligations under this Agreement and will treat the Disclosing Party’s Confidential Information with the same degree of care it uses to protect its own confidential information, but in no event with less than a reasonable degree of care. The Recipient will not disclose or make available to any third party, any of the Disclosing Party’s Confidential Information, without the prior written consent of the Disclosing Party. Confidential Information shall not include any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law. In the event that the Recipient is required by law, regulation or court order to disclose any Confidential Information, the Recipient will give the Disclosing Party prompt notice thereof so that the Disclosing Party may seek an appropriate protective order to obtain confidential treatment for such disclosed information. In addition, the Recipient will (x) take all reasonable actions to obtain confidential treatment for any disclosed Confidential Information; (y) reasonably cooperate with the Disclosing Party in its efforts to seek such a protective order; and (z) limit such disclosure of the Disclosing Party’s Confidential Information to the fullest extent permitted under applicable laws. Upon written request by the Disclosing Party, the Recipient will promptly return to the Disclosing Party and/or destroy, at the Disclosing Party’s option, all Confidential Information of the Disclosing Party in the possession or control of the Recipient.
6. Representations and Warranties
By Both Parties.
Each party warrants that it has full power and authority to enter into and perform this Agreement, and the person signing this Agreement on such party’s behalf has been duly authorized and empowered to enter into this Agreement.
Partner represents and warrants that, to the extent a Product offered for sale through the Forma Services has an applicable product warranty when sold or offered for sale directly from Partner or through other channels, Partner agrees to honor such warranty when a corresponding Product is purchased by a Customer through the Forma Services pursuant to this Agreement.
- Partner shall defend and indemnify Forma and its parent, subsidiaries and affiliates, and successors and assigns, and each of their officers, directors, employees, contractors and agents (“Forma Indemnified Parties”) from and against any third party suit, claim, or proceeding brought against any Forma Indemnified Party based on (i) a breach of Partner’s obligations under this Agreement or (ii) an allegation that the Products or any part thereof infringe, misappropriate, or otherwise violate any third party’s rights, including any Intellectual Property Rights (each of (i) and (ii), an “Indemnified Claim”).
- Forma shall notify Partner of an Indemnified Claim as soon as practicable. Partner shall not settle any Indemnified Claim or consent to the entry of any judgment regarding which indemnification is being sought hereunder unless such settlement, compromise, or consent: (i) includes an unconditional release of all Forma Indemnified Parties from all liability arising out of such Indemnified Claim; (ii) does not contain any admission or statement suggesting any wrongdoing or liability on behalf of any Forma Indemnified Parties; and (iii) does not contain any equitable order, judgment or term that in any manner affects, restrains, or interferes with the business of any Forma Indemnified Parties. Forma reserves the right to participate in the defense of any Indemnified Claim with counsel of its own choosing.
8. Limitation of Liability
EXCEPT FOR EITHER PARTY’S BREACH OF CONFIDENTIALITY UNDER SECTION 5 OR PARTNER’S LIABILITY FOR ITS INDEMNIFICATION OBLIGATIONS UNDER SECTION 7, NEITHER PARTY SHALL BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR ENHANCED DAMAGES, ARISING OUT OF OR RELATING TO THIS AGREEMENT, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE BY THE OTHER PARTY OR COULD HAVE BEEN REASONABLY FORESEEN BY SUCH PARTY, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, IN NO EVENT SHALL THE MAXIMUM AGGREGATE LIABILITY OF EITHER PARTY ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT EXCEED THE LESSER OF (A) $500 OR (B) THE FORMA SHARE RECEIVED BY FORMA FOR THE FACILITATION OF THE SALE OF THE PRODUCTS THAT ARE THE SUBJECT OF THE CLAIM.
9. Term and Termination
Unless earlier terminated pursuant to this Section 9, the term of this Agreement will begin on the Effective Date and will expire at the end of the Term set forth in the Order Form.
Termination for Material Breach.
This Agreement may be terminated at any time by mutual Agreement of the parties. Further, either party may terminate this Agreement, effective immediately upon written notice to the other party, if such other party materially breaches any provision of this Agreement and does not cure such breach within thirty (30) days after receiving written notice thereof from the non-breaching Party.
Effects of Termination.
- Payment; Products. Upon termination or expiration of this Agreement for any reason, any amounts owed to the parties under this Agreement before such termination or expiration will be immediately due and payable, all license rights granted in this Agreement will immediately terminate, and each party shall continue to maintain the confidentiality of the other party’s Confidential Information and shall return or destroy all tangible embodiments of the same.
- Survival. Sections 1, 2.4, 3, 5, 7, 8, 9.3 and 10 will survive expiration or termination of this Agreement for any reason.
Governing Law; Jurisdiction.
This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of California, without giving effect to any conflicts of laws principles that require the application of the law of a different state. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Both parties hereby consent to the exclusive jurisdiction of the state and federal courts located in Santa Clara County, CA.
If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will be remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
Partner will not assign, subcontract, delegate, or otherwise transfer this Agreement, or its rights and obligations herein, without obtaining the prior written consent of Forma, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. The terms of this Agreement will be binding upon the parties and their respective successors and permitted assigns.
The parties to this Agreement are independent contractors, and nothing contained in this Agreement shall be construed as creating or implying a joint venture, partnership, agency, or employment relationship between the Parties or their respective employees and contractors. Neither Party will have, and will not represent to any third party that it has, any authority to act on behalf of the other Party.
Each party must deliver all notices or other communications required or permitted under this Agreement in writing to the other party at the address listed on the Order Form by courier, by certified or registered mail (postage prepaid and return receipt requested), or by a nationally-recognized express mail service. Notice will be effective upon receipt or refusal of delivery. If delivered by certified or registered mail, any such notice will be considered to have been given five (5) business days after it was mailed, as evidenced by the postmark. If delivered by courier or express mail service, any such notice will be considered to have been given on the delivery date reflected by the courier or express mail service receipt. Each party may change its address for receipt of notice by giving notice of such change to the other party.
Entire Agreement; Precedence.
This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matters. No modification of or amendment to this Agreement, or any waiver of any rights under this Agreement, will be effective unless in writing and signed by each party. In the event of a conflict between the body of this Agreement and the terms of an Order Form to this Agreement, the terms of the Order Form will control.