In this Agreement, the following definitions shall apply:
1.1. “Account” means a user account/user accounts that enables a User of Customer’s organisation to access and use the Platform in accordance with this Agreement.
1.2. “Admin User” means a User designated by Customer with administrative permissions for Customer’s Account, including the ability to add or remove Seats and to manage other Users.
1.3. “Affiliate” means, in relation to a party, any entity that directly or indirectly controls, is controlled by, or is under common control with that party, where “control” means the ownership of more than fifty percent (50%) of the voting securities of an entity or the power to direct or cause the direction of its management and policies.
1.4. “Agreement” means the terms of this Master Services Agreement, including any addenda or schedules, and any documents incorporated by reference, as amended from time to time. For clarity, each Order Form and each Statement of Work is a separate contract that incorporates this Agreement, and a reference to “this Agreement” does not include any Order Form or Statement of Work unless expressly stated.
1.5. “Applicable Data Protection Laws” means the data protection and privacy laws applicable to a party’s performance under this Agreement, as further specified in the applicable Data Processing Agreement identified in Section 6.3.
1.6. “Applicable Laws” means any local, state, national, or international law, treaties, and/or regulations applicable to a respective party.
1.7. “Business Day” or “Business Days” means any day other than a Saturday, a Sunday, or a public holiday in the Customer Location (or, where the Customer Location is a country with regional public holidays, in the state, province, or region within the Customer Location specified in the applicable Order Form or, if none is specified, the capital city of the Customer Location). Where a period expressed in Business Days applies to an act to be performed by a party, the Business Days are determined by reference to the Customer Location under the Order Form or Statement of Work to which the act relates.
1.8. “Confidential Information” means all non-public, proprietary, or confidential (or reasonably considered to be confidential) information disclosed by one party to the other, whether orally, in writing, or electronically, including but not limited to business operations information, technical data, trade secrets, financial information, and user data. Confidential Information does not include information that is publicly available (other than due to a breach of this Agreement).
1.9. “Content” means Input and Output collectively.
1.10. “Customer” means the entity identified as the customer on the signature page of this Agreement and, in relation to any Order Form or Statement of Work, the entity identified as the customer in that Order Form or Statement of Work, which may be that entity or an Affiliate of it in accordance with Section 2.5.
1.11. “Customer Data” means any data, content, or information: (a) provided, submitted, or uploaded by Customer or its Users to the Services, including Personal Information and Personal Health Information; or (b) generated by the Services in response to Customer’s or its Users’ use of the Services, including Output. Customer Data does not include Heidi Materials, Third-Party Information, De-Identified Data, or Usage Data (as described in Section 6.8).
1.12. “Customer Location” means the country specified as the Customer Location in the applicable Order Form or, if none is specified, the country in which Customer has its principal place of business. The Customer Location determines the Heidi contracting entity, the governing law and jurisdiction under Section 14.1, and the applicable Data Processing Agreement under Section 6.3.
1.13. “Data Breach” means any unauthorised access to, acquisition, use, disclosure, alteration, loss, or destruction of Customer Data that compromises the security, confidentiality, or integrity of such Customer Data.
1.14. “De-Identified Data” means Content that Heidi has processed to remove or transform: (a) any information that identifies or could reasonably be used to identify Customer, any individual, any third party, or any specific transaction or engagement; and (b) trade secrets, commercially sensitive information, and other confidential business information. De-Identified Data must be processed to a level of abstraction such that the resulting data reflects only generalised patterns, anonymised structural elements, or aggregated statistical insights that cannot be reverse-engineered to reveal the specific content, context, or substance of the underlying Content in a manner that would connect such Content to Customer or any individual.
1.15. “Documentation” means user guides, help articles, and other technical materials describing the features and functionality of the Platform that Heidi makes available through or in connection with the Platform, as may be updated by Heidi from time to time.
1.16. “Effective Date” means the date on which this Agreement is entered into, being the date stated on the signature page of this Agreement or, if no date is stated, the date of last signature of this Agreement. The Effective Date of this Agreement is separate from, and does not determine, the Order Form Start Date of any Order Form.
1.17. “Fees” means the fees and other charges payable by Customer for the Services, as specified in, or calculated in accordance with, the applicable Order Form or Statement of Work.
1.18. “Force Majeure Event” means any act, event, omission, or accident beyond a party’s reasonable control, including but not limited to acts of God, pandemics, epidemics, war, riot, civil commotion, government orders, failure of telecommunications or utilities, or natural disasters.
1.19. “Heidi” means the Heidi entity identified as the contracting entity in the applicable Order Form or Statement of Work or, where no such entity is identified, the Heidi entity identified for the Customer Location in the Governing Law and Jurisdiction table in Section 14.1 of this Agreement.
1.20. “Heidi Materials” means all elements of the Services, including: (a) all underlying and associated software, source code, object code, models, algorithms, data sets, training data, documentation, user interfaces, designs, workflows, processes, methods, know-how, and trade secrets; (b) all features, functionalities, and any improvements, modifications, enhancements, updates, upgrades, or derivative works thereof; (c) any licensed content from third parties; and (d) any and all other technology, inventions, works of authorship, or materials developed, used, or provided by Heidi (excluding Output) in connection with the Services. Heidi Materials does not include Output or Customer Data.
1.21. “Heidi Policies” means the Usage Policy, Privacy Policy, and any other policy published by Heidi from time to time governing access to or use of the Platform, each as updated and made available at the URLs specified in this Agreement or otherwise notified to Customer.
1.22. “Input” means Customer Data provided by Customer or its Users to the Services, including queries, audio recordings, documents, files, and other materials.
1.23. “Intellectual Property Rights” means all existing and future intellectual and industrial property rights, including patents, trademarks, copyrights, trade secrets, designs, know-how, and moral rights, whether registered or unregistered.
1.24. “Material Breach” means a substantial failure to perform or comply with a material obligation under this Agreement, an Order Form or a Statement of Work. The cure periods applicable to a Material Breach are set out in Section 11.4.
1.25. “Non-Heidi Applications” means third-party applications, tools, systems, or services not provided by Heidi.
1.26. “Order Form” means any ordering document referencing this Agreement, entered into in accordance with Section 2.2, that specifies the Customer Location, the Heidi contracting entity, the Order Form Start Date, the Subscription Term, the Fees, the number of Seats or the Prepaid Capacity purchased, the currency, and other commercial terms for the Services. The parties may enter into more than one Order Form under this Agreement, and each Order Form is independent of every other Order Form.
1.27. “Order Form Start Date” means, in respect of an Order Form, the date on which the Subscription Term under that Order Form commences, being the date specified as such in that Order Form or, if no date is specified, the date of last signature of that Order Form.
1.28. “Output” means data, information, or materials generated by the Services in response to Input, including transcriptions, clinical notes, referral letters, patient summaries, billing codes, and research results.
1.29. “Personal Health Information” means Personal Information that relates to the physical or mental health of an individual, the provision of healthcare to an individual, or payment for healthcare provided to an individual, including any such information that constitutes protected health information, personal health information, health information, or an equivalent category under Applicable Data Protection Laws.“
1.30. Personal Information” means any information relating to an identified or identifiable individual, and includes personal data, personally identifiable information, and any equivalent category under Applicable Data Protection Laws.
1.31. “Platform” means the digital software platform operated by Heidi and made available to the Customer under this Agreement, including its software interface, features, infrastructure, integrations, and all related tools and functionalities made available to the Customer, including any related tools, features, and content which are available through web portals, browser extensions, and mobile/desktop applications.
1.32. “Prepaid Capacity” means, where an Order Form specifies usage-based or consumption-based pricing, the committed volume of credits or units purchased under that Order Form for the applicable Subscription Term.
1.33. “Privacy Policy” means Heidi’s Privacy Policy (available at https://www.heidihealth.com/legal/privacy-policy), as amended from time to time.
1.34. “Private Preview” means products, features, or services not yet generally available, labelled “beta,” “alpha,” “preview,” “pre-release,” or “experimental.”
1.35. “Product Terms” means the product-specific terms located at https://www.heidihealth.com/legal/product-terms applicable to the Services supplied under this Agreement, as updated in accordance with this Agreement, including any required notice or acceptance. Heidi will not materially decrease Customer’s rights with respect to a product during Customer’s then-current Subscription Term. This commitment does not restrict credit-rate updates permitted under Section 5.4.
1.36. “Seats” means the Accounts licensed under an Order Form to access the Platform, as specified in that Order Form. Seats are non-transferable without Heidi’s prior written approval.
1.37.“Services” means the provision of the Platform to Customer under the applicable Order Form, including any additional services purchased thereunder, and any professional services provided under a Statement of Work. Such additional services may be subject to supplemental terms and conditions and may come at an additional cost.
1.38. “Statement of Work” or “SOW” means a statement of work referencing this Agreement and entered into in accordance with Section 2.3, setting out professional services to be provided by Heidi to Customer.
1.39. “Subscription Term” means, in respect of each Order Form, the initial period for Customer’s use of the Services as set out in that Order Form, commencing on the Order Form Start Date, and each renewal period that commences in accordance with Section 11.3, with each renewal period constituting a separate Subscription Term.
1.40. “Term” means the period commencing on the Effective Date and continuing until this Agreement is terminated in accordance with Section 11.
1.41. “Third-Party Information” means any content, data, or information that is publicly available or derived from external sources not controlled by Heidi (excluding licensed content within the scope of Heidi Materials), which the Services may access or reference in generating Output.
1.42. “Usage Policy” means Heidi’s Usage Policy governing access to and use of the Platform (available at https://www.heidihealth.com/legal/usage-policy), as amended from time to time.
1.43. “User” means an individual who is authorised by the Customer to access and use the Platform using a registered Account and for whom a subscription to the Services has been procured. Users may include, for example, Customer’s employed clinicians, healthcare providers, nurses, and administrators. For clarity, Users as used in this Agreement only acquire a right to use the Services via a subscription procured under an Order Form and as authorised by Customer, and the quantity of Users licensed to use the Platform and Services in an Order Form must be in accordance with the terms set forth in such Order Form.
2. Structure of this Agreement; Orders
2.1. Framework. This Agreement sets out the terms on which Heidi may supply, and Customer may purchase, the Services. It does not of itself commit either party to supply or purchase any Services. The parties may from time to time enter into one or more Order Forms and one or more Statements of Work referencing this Agreement. Each Order Form and each Statement of Work, once entered into, incorporates the terms of this Agreement and forms a separate contract between the parties on those terms, together with any additional or varied terms expressly set out in it in accordance with Section 2.7. Nothing in this Agreement obliges either party to enter into any Order Form or Statement of Work.
2.2. Order Forms. Each Order Form must identify Customer, the Customer Location, the Heidi contracting entity, the Order Form Start Date, the Subscription Term, the Services purchased, the number of Seats or the Prepaid Capacity purchased, the Fees, and the currency of payment. An Order Form takes effect when signed by an authorised representative of each party or, where Heidi makes an Order Form available for electronic acceptance, when accepted by a duly authorised representative of Customer through the mechanism Heidi provides in accordance with Section 15.11. An in-Platform ordering process may be used for this purpose if it records those particulars, the applicable terms and any expressly agreed changes to an existing purchase. The parties may enter into any number of Order Forms under this Agreement, and each Order Form is independent of every other Order Form.
2.3. Statements of Work. Where Customer wishes to purchase implementation, integration, configuration, training, migration, transition, or other professional services, the parties may enter into a statement of work referencing this Agreement. Each Statement of Work must specify the services to be performed, any deliverables to be produced (“Deliverables”), the timetable, the Fees and the basis on which they are charged, and any assumptions or Customer dependencies on which the services are premised. Unless a Statement of Work expressly states otherwise: (a) Fees are charged on a time and materials basis at Heidi’s then-current rates; (b) Heidi’s obligations as to any timetable are to use commercially reasonable efforts; and (c) Heidi and its licensors retain all Intellectual Property Rights in each Deliverable, and Heidi grants Customer a non-exclusive, non-transferable, non-sublicensable licence to use that Deliverable for Customer’s internal business purposes for the period specified in the applicable Statement of Work or, if no period is specified, for so long as any Order Form remains in effect under this Agreement.
2.4. Change Orders. Either party may request a change to a Statement of Work. No change is binding unless recorded in a written change order signed by an authorised representative of each party, specifying the change and any consequential adjustment to the Fees or timetable. Heidi is not obliged to commence work on a requested change before the change order is signed.
2.5. Affiliates. An Affiliate of Customer may purchase Services by entering into an Order Form or Statement of Work referencing this Agreement. In that case: (a) that Affiliate is the Customer for the purposes of that Order Form or Statement of Work and is solely responsible for performing the obligations under it, including payment of the Fees; (b) that Order Form or Statement of Work forms a separate contract between that Affiliate and the Heidi entity identified in it, on the terms of this Agreement; and (c) neither Customer nor any other Affiliate is liable for that Affiliate’s obligations unless it expressly agrees otherwise in writing. Seats and Prepaid Capacity purchased under an Order Form may be used only by Users of the entity identified as the Customer in that Order Form, unless that Order Form expressly permits use by named Affiliates. An Affiliate of Heidi may act as the contracting entity under an Order Form or Statement of Work, in which case references to Heidi in respect of that Order Form or Statement of Work are references to that Affiliate.
2.6. Resellers and Marketplaces. Customer may acquire the right to use the Services through an authorised reseller or distributor, or through a third-party marketplace (each a “Reseller”). Where it does: (a) the applicable reseller or marketplace order replaces the Order Form in respect of the commercial terms, and Customer’s payment obligations are owed to the Reseller and not to Heidi; (b) this Agreement continues to govern Customer’s access to and use of the Services; (c) Heidi has no obligation to provide the Services to the extent the Reseller has not paid Heidi the corresponding amounts; and (d) Heidi is not bound by any term agreed between Customer and the Reseller, or contained in any reseller or marketplace terms, that purports to impose on Heidi any obligation or liability beyond that set out in this Agreement, unless Heidi has agreed to that term in writing.
2.7. Variation by Order Form or Statement of Work. An Order Form or Statement of Work varies this Agreement only to the extent that it expressly states that it varies this Agreement and identifies the provision varied. Any such variation applies only to that Order Form or Statement of Work and does not affect this Agreement as it applies to any other Order Form or Statement of Work. Neither party’s standard purchase, procurement, invoicing, or vendor registration documentation varies this Agreement, whether or not signed or acknowledged.
3. Accounts and registration
3.1. Accounts. To access and use the Services, each individual authorised by Customer and allocated a Seat must register for and maintain a unique Account on the Platform. Customer acknowledges and agrees that all Users must comply with this Agreement and any applicable usage policies referenced herein, and Customer is responsible for Users’ compliance with the same.
3.2. Registration Process. As part of registering for, and activating, an Account, Users will need to provide Heidi with information, including personal information. This information may include, but is not limited to, their full name, specialty, and contact details (such as the contact email and phone number). Heidi will use and disclose this information only for the purposes of operating the Platform, and as otherwise described in the Privacy Policy.
3.3. Account Security. When Users register and activate their Accounts, they can choose their username and password. The Users are responsible for keeping the username and password secure and are responsible for all use and activity carried out on their Accounts with Heidi.
4. Services
4.1. Access to Heidi’s Services. Subject to the terms of this Agreement, and Customer paying all amounts owed under it, Heidi grants Customer a limited, revocable, non-exclusive, non-transferable, and non-sublicensable right for its Users to access and use the Platform in accordance with the Documentation and the applicable Product Terms. Customer is also bound by any further restrictions set forth in the Order Form. All rights not expressly granted to Customer herein are reserved by Heidi and its licensors or other providers.
4.2. Customer Cooperation. Customer shall (and shall cause each User to): (a) reasonably cooperate with Heidi in all matters relating to the Platform and (b) respond promptly to any Heidi request and provide the applicable information and documentation reasonably necessary for the provision of the Services and ensure such information and documentation are complete and accurate in all material respects.
4.3. Support and Service Levels. Heidi agrees to the support and service level commitments located at https://www.heidihealth.com/legal/support-and-sla (the “SLA”). Heidi may modify the SLA but agrees not to materially decrease the level of support or service level commitments stated in the SLA. The SLA sets out Heidi’s support hours, target response times, and the escalation path for urgent issues arising outside standard support hours.
5. Fees and payments
5.1. Services Fees. Customer shall pay all Fees for the Services through Heidi as set forth in the applicable Order Form or Statement of Work. All pricing terms under this Agreement are Heidi’s Confidential Information, and Customer shall not disclose such terms to any third party without Heidi’s prior written consent, except that Customer may disclose pricing terms: (a) to its legal, accounting, and other professional advisers and auditors who are bound by confidentiality obligations no less protective than those in Section 9; (b) to a regulator, government authority, or funding or accreditation body, to the extent required in connection with an audit, examination, or grant or funding requirement; and (c) as otherwise required by Applicable Laws, in each case subject to Section 9 (Confidential Information).
5.2. Taxes. All amounts due under this Agreement are non-cancellable, non-refundable, and exclusive of all sales, uses, excise, service, value added, or other taxes, duties, and charges of any kind. Customer is responsible for taxes arising out of the use of the Platform, which may be invoiced by Heidi from time to time.
5.3. Payment Method. All payments due under this Agreement shall be made via the payment method nominated by Heidi. Invoices are payable within fourteen (14) days of the invoice date (Net 14), unless otherwise specified in the Order Form. Heidi will issue invoices to the Billing Email specified in the applicable Order Form. Fees are invoiced in advance in accordance with the Billing Schedule specified in the Order Form or, if no Billing Schedule is specified, annually in advance, and each period covered by an invoice is a “billing period” (and “billing cycle” has the corresponding meaning) for the purposes of this Agreement.
5.4. Additional and Reduced Seats. Customer acknowledges that an Admin User may add or remove Seats during the applicable Subscription Term. Any additional Seats will be billed on a pro-rata basis from the date of activation through the end of the then-current billing period, and the updated number of Seats will be reflected in the next billing cycle. No separate or amended Order Form is required for such incremental additions. Fees paid for Seats are non-refundable, and no credits or refunds will be issued for removed or unused Seats. Where an Order Form specifies usage-based or consumption-based pricing, Customer purchases Prepaid Capacity for the applicable Subscription Term. Prepaid Capacity may be used by any User licensed under the Order Form under which it was purchased for the Services and usage authorised under that Order Form, and is not shared across Order Forms or with any Affiliate unless the applicable Order Forms expressly state otherwise. Activation or use of an additional product or feature under Section 15.1 does not itself authorise that product or feature to consume Prepaid Capacity or another existing allowance. Any such use must be expressly authorised by Customer in the applicable Order Form or through the Platform, identifying the affected allowance and scope. An authorisation under this Section 5.4 or the applicable Product Terms given through the Platform by an Admin User, or by another person Customer has designated for spending authorisations, is given on Customer’s behalf and binds Customer. That authorisation does not itself approve an additional purchase, automatic top-up, overage charge or subscription change; those require the applicable commercial terms to be disclosed and expressly accepted by Customer. Charges already expressly agreed for authorised Services under an Order Form remain payable in accordance with that Order Form. If Customer’s Prepaid Capacity is fully consumed during a Subscription Term, additional usage will be billed at the per-unit rate specified in the applicable Order Form only to the extent that Order Form expressly authorises such usage and charges. Otherwise, further chargeable usage requires Customer’s express authorisation. Unused Prepaid Capacity does not carry over to any subsequent Subscription Term and no credits or refunds will be issued for unused Prepaid Capacity. Customer may purchase additional Prepaid Capacity during a Subscription Term at the rates specified in the applicable Order Form or at Heidi’s then-current rates. Additional Prepaid Capacity purchased during a Subscription Term is added to the Prepaid Capacity under the Order Form identified in the purchase, may be used by the Users licensed under that Order Form, and expires at the end of that Order Form’s then-current Subscription Term, unless the parties expressly agree otherwise. For credit-based usage, the Product Terms are incorporated into this Agreement and govern how credits are consumed. Heidi may update such information during a Subscription Term as section 1.6 of the Product Terms permits, without a separate amendment, further acceptance or a minimum notice period, except as required by Applicable Laws. Any expressly agreed fixed credit rates prevail for their agreed period. Such updates do not change the Fees or quantity of credits included or purchased, or authorise any additional spending or use of a balance not already authorised.
5.5. No Continuity. The pricing and subscription terms set out in an Order Form apply only for the Subscription Term of that Order Form. Renewals are governed by Section 11.3. After an Order Form expires or terminates, any new purchase or continued paid access requires the applicable pricing and terms to be agreed in accordance with Sections 2.2 and 15.11; access alone does not authorise additional charges. Heidi is not required to maintain or extend the pricing or terms of any Order Form beyond its Subscription Term.
6. Security and Data Privacy
6.1. Information Security. Heidi shall maintain reasonable physical, technical, and organisational safeguards for Customer Data in Heidi’s possession or control and the security of Heidi’s information management system, materially consistent with industry standards. Heidi shall comply with Applicable Data Protection Laws applicable to its performance under this Agreement.
6.2. Certifications. Heidi maintains, and shall use commercially reasonable efforts to continue to maintain during the Subscription Term, the following certifications, together with such other industry-standard security and compliance certifications as Heidi may hold from time to time: (a) ISO/IEC 27001:2022 (information security management); (b) SOC 2 Type II; and (c) ISO/IEC 42001 (AI management systems). Current certificates and related compliance documentation are available to the Customer on reasonable written request, subject to Section 9 (Confidential Information), and via Heidi’s Trust Centre (available at https://trust.heidihealth.com). Heidi may, at its discretion, replace any of the foregoing with a certification or framework of substantially equivalent scope.
6.3. Data Privacy. Each party must, in the performance of this Agreement, comply with all Applicable Data Protection Laws in respect of any Personal Information and Personal Health Information. Data processing terms, breach notification obligations, consent requirements, and related data protection requirements are set forth in the applicable Data Processing Agreement identified in the table below. In the event of any conflict between the applicable Data Processing Agreement and this Agreement, the Data Processing Agreement will control with respect to the processing of Personal Information and Personal Health Information. A reference in this Agreement to a Data Processing Agreement includes any equivalent instrument required under Applicable Data Protection Laws in the Customer Location, including a business associate agreement, an information manager agreement, or any similar arrangement, however described. Customer will provide, or ensure the provision of, any privacy collection notices to Users and patients that are required under Applicable Data Protection Laws in connection with Customer’s use of the Services (including, in Australia, notices consistent with Australian Privacy Principle 5), including on Heidi’s behalf where required.
Customer Location
Applicable Data Processing Agreement
URL
United States
Heidi Global Data Processing Agreement (including its United States sections) and Business Associate Agreement
https://www.heidihealth.com/legal/data-processing-agreement and https://www.heidihealth.com/legal/business-associate-agreement
All other countries
Heidi Global Data Processing Agreement (including the jurisdiction-specific sections applicable to the Customer Location)
6.4. Data Breach. Heidi will notify Customer of a Data Breach in accordance with the notification trigger, timeline and procedures specified in the applicable Data Processing Agreement. This Section does not postpone or narrow a notification obligation under that instrument. Where all relevant information is not available at the time of initial notification, Heidi may provide information in phases as it becomes available. No notification under this Section is an admission of fault or liability. Customer will reasonably cooperate with Heidi in investigating, containing, and remediating any Data Breach.
6.5. No AI Model Training. No Customer Data will be used as an input to train, fine-tune, or otherwise improve any artificial intelligence model, including any generative artificial intelligence model or large language model, whether operated by Heidi or by any third party. This Section prevails over any inconsistent statement in the Privacy Policy or any other Heidi Policy.
6.6. AI Regulatory Compliance.
6.6.1. Intended Use. The Platform is designed to support qualified healthcare professionals, including through clinical administrative workflows and, where Heidi makes such functionality available, the performance of tasks and actions at a User’s direction. The Platform is not intended to replace independent clinical judgement, and responsibility for all clinical decisions remains with qualified healthcare professionals. Heidi may make available additional functionality, including functionality that performs actions autonomously or semi-autonomously at a User’s direction, subject to the Documentation and any applicable Product Terms or Supplemental Terms.
6.6.2. Heidi Responsibilities. To the extent AI-specific laws apply, Heidi, as provider, is responsible for: (i) designing the Platform with appropriate technical safeguards; (ii) maintaining required technical documentation and quality management systems; and (iii) making available to Customer information within Heidi’s reasonable control through the Documentation to assist Customer in fulfilling Customer’s compliance obligations as a deployer.
6.6.3. Customer Responsibilities. Customer, as deployer, is responsible for: (i) using the Platform consistent with Heidi’s intended use and the Documentation; (ii) implementing appropriate human oversight of Output, including independent review and validation of all Output before relying on it in clinical or operational contexts; (iii) conducting any required impact assessments for its deployment context; (iv) informing patients and obtaining consent from end users that they are interacting with an AI system when required by Applicable Laws; and (v) refraining from using the Platform for purposes that would render it a prohibited AI practice under Applicable Laws.
6.7. De-Identified Data. Heidi will have the right to use De-Identified Data to maintain, develop, improve and enhance the quality and functionality of the Services, including through the identification of general usage patterns, the development of aggregated insights, and the establishment of industry benchmarks. Heidi will process De-Identified Data in a manner that prevents attribution of any clinical or business information, workflows, or analyses to Customer or any other identifiable party. Heidi commits to employing industry-standard measures to ensure that De-Identified Data cannot be used to re-identify Customer, any individual, or any third party. For the avoidance of doubt, once Content is de-identified in accordance with the definition of De-Identified Data set forth in Section 1 so that it can no longer be associated with Customer, an individual, or Customer’s Confidential Information, such De-Identified Data is not Customer Data or Customer’s Confidential Information for purposes of Heidi’s data use rights and obligations under this Agreement. The creation and use of De-Identified Data remain subject to Applicable Data Protection Laws, the applicable Data Processing Agreement and any required Customer authorisation. This Section does not override a restriction in those instruments or authorise re-identification, and Heidi will require recipients of De-Identified Data to comply with the same prohibition on re-identification.
6.8. Usage Data. Subject to the applicable Data Processing Agreement and Business Associate Agreement, Heidi may process, use, and retain data related to Customer’s and its Users’ access to, use of, and interaction with the Platform and its features (“Usage Data”) for Heidi’s legitimate business purposes, including testing, security, troubleshooting, developing, and operating the Platform, and may share Usage Data with service providers acting on its behalf for those purposes. Usage Data does not include the content of Customer Data or any Personal Health Information. Usage Data is Heidi’s Confidential Information.
7. Use of Heidi
7.1. General Restrictions. Customer must, and must ensure that its Users:
7.1.1. comply with all Applicable Laws, regulations, and professional obligations in connection with the use of the Platform and the Services;
7.1.2. adhere to Heidi Policies, as updated and notified to Customer from time to time; and
7.1.3. notify Heidi promptly upon becoming aware of any actual or suspected defect, security vulnerability, or unauthorised access relating to the Platform or Services.
7.2. Prohibitions. Except as otherwise expressly permitted under this Agreement or required by Applicable Laws, the Customer must not, and must ensure that its Users do not:
7.2.1. distribute, sublicense, sell, resell, or otherwise transfer all or any part of the Services or access to the Platform to any third party;
7.2.2. attempt to disassemble, decompile, reverse engineer, or otherwise derive the source code, underlying algorithms, or data models of the Platform, except to the extent expressly permitted by Applicable Laws that cannot be excluded by agreement;
7.2.3. alter, customise, modify, or create derivative works of the Platform or any Heidi Materials;
7.2.4. remove, obscure, or alter any proprietary, copyright, trademark, or other intellectual property notices on or within the Platform;
7.2.5. use the Platform in any manner that could damage, disable, overburden, or impair its operation, or interfere with any other party’s use of the Platform;
7.2.6. introduce any virus, malware, or other harmful code to the Platform, or knowingly expose the Platform or any Customer Data to reasonably avoidable security risks;
7.2.7. use the Platform to store, transmit, or process any data that is knowingly inaccurate, misleading, or unlawful;
7.2.8. access or use the Platform in excess of the number of Seats or beyond the scope of the subscription specified in the Order Form;
7.2.9. use any automated means (including bots, scrapers, or scripts) to access the Platform, except through APIs expressly made available by Heidi for that purpose;
7.2.10. use the Platform to develop, train, or improve a competing product or service, or permit any third party to do so; or
7.2.11. engage in any conduct, or make any public statement, that the Customer knows or ought reasonably to know would materially harm Heidi’s reputation or goodwill. This does not restrict feedback or reviews made in good faith.
7.3. Integrations. Heidi may allow Customer to connect the Services with Non-Heidi Applications, including through APIs, webhooks, extensions, or other connection methods (collectively, “Integrations”). Customer is solely responsible for all Non-Heidi Applications, including their configuration, operation, security, availability, accuracy, legality, and compliance with Applicable Laws and applicable third-party terms. Customer represents that it has all rights, licenses, consents, and authority necessary to connect each Non-Heidi Application to the Services and to permit Heidi to access, receive, transmit, process, and store Customer Data as necessary to provide the Services through such Integrations. If Customer’s authority to allow Heidi access to a Non-Heidi Application lapses, Customer will immediately disable such Integration. Heidi disclaims all liability for Non-Heidi Applications and does not guarantee that any Integration will remain available, uninterrupted, error-free, secure, or interoperable with the Services.
7.4. Automated Actions. Where Heidi makes available functionality that enables the Services to interact with, navigate, or take actions within Non-Heidi Applications or a User’s device or systems on a User’s instruction, Customer is responsible for: (a) selecting and scoping the instructions given; (b) ensuring that such use complies with Applicable Laws, the applicable third-party terms (including the terms of any electronic health record or practice management system) and Customer’s professional obligations; and (c) reviewing and approving any action before it creates or alters a clinical record, a prescription, an order, a claim or a payment, sends external correspondence, shares information with another person, or creates or changes a file. Heidi is not liable for any action taken by the Services in accordance with a User’s instruction, or for any consequence of a User’s failure to review such an action. Additional terms may apply to such functionality under the applicable Product Terms or Supplemental Terms. This allocation does not exclude Heidi’s liability for its own breach of this Agreement or override this Agreement’s express warranties, remedies or non-excludable rights, subject to Section 13.
8. Intellectual Property
8.1. Heidi Materials. As between the parties, Heidi and its licensors own all right, title, and interest (including all Intellectual Property Rights) in and to the Heidi Materials. Except for the limited right to access and use the Platform granted under this Agreement, this Agreement does not convey to Customer any right, title, or interest in the Heidi Materials. No right or licence is granted to Customer under any of Heidi’s trademarks, service marks, trade names, or logos.
8.2. Feedback. Customer, from time to time, may submit comments, information, questions, data, ideas, descriptions of processes, or other information relating to the Platform to Heidi (“Feedback”). Customer agrees that Heidi may in connection with any of its products or services freely use, copy, disclose, license, distribute, and exploit any Feedback in any manner without any obligation, royalty, or restriction based on intellectual property rights or otherwise, provided Customer shall not be identified in connection with any such Feedback without Customer’s written consent in its sole discretion. This permission does not override Section 6.5, the applicable Data Processing Agreement or either party’s confidentiality obligations. It does not grant a right to publish Customer’s routines, templates or other Customer Data without separately agreed permission. Any permission to publish or share a community submission is limited to the permission expressly presented and accepted for that submission; private use of a routine or template does not itself grant publication rights.
8.3. Customer Data. As between the parties, Customer retains all right, title, and interest (including any and all Intellectual Property Rights) in and to Customer Data. Customer grants to Heidi a limited, non-exclusive, royalty-free right to use, process, and reproduce Content and Customer Data as necessary to: (a) provide, operate, and maintain the Services; (b) address, diagnose, or prevent technical problems; and (c) comply with Applicable Laws. Customer may delete Customer Data at any time from within the Platform. The accuracy, completeness, and lawfulness of Customer Data is Customer’s sole responsibility.
8.4. Output. Given the nature of the Services and artificial intelligence, Output may not always be unique or accurate, and other customers may receive similar or identical Output from the Platform. Customer acknowledges that Heidi does not manage or control Third-Party Information and assumes no responsibility for its accuracy, completeness, or continued availability. Customer’s rights to Output under this Agreement do not extend to any queries or data of third-party users.
9. Confidential Information
9.1. Each party (as “Receiving Party”) hereto acknowledges that the Confidential Information of the disclosing party (“Disclosing Party”) constitutes valuable confidential and proprietary information. The Receiving Party must not disclose Confidential Information of the Disclosing Party, except: (a) to such party’s personnel who have a need to know; (b) if the disclosure is required by law; or (c) if the recipient of the Confidential Information has independently obtained such information from a third party (other than via a breach of confidence).
9.2. Obligation. Each party agrees to maintain the confidentiality of Confidential Information during the Term and for a period of three (3) years following the expiry or termination of this Agreement, except that Confidential Information that constitutes Personal Information, Personal Health Information, or a trade secret remains confidential for so long as it retains that character. Each party shall take all reasonable steps to protect Confidential Information from unauthorised access, use, or disclosure, which shall include, but not be limited to, the steps that the party takes to protect its own proprietary and confidential information. In the event of a breach of confidentiality, the breaching party shall immediately notify the non-breaching party and take all necessary actions to remedy the breach.
9.3. Compelled Disclosure. If the Receiving Party is legally required by a court, regulatory body, or Applicable Laws to disclose the Disclosing Party’s Confidential Information, the Receiving Party must, unless prohibited by law: (i) promptly notify the Disclosing Party before disclosing, so the Disclosing Party can seek a protective order or other remedy; and (ii) provide reasonable assistance to the Disclosing Party in obtaining such protective order. If the Receiving Party is still required to disclose the Confidential Information, it will only share that portion of the Confidential Information that is legally necessary and use commercially reasonable efforts to obtain assurances that it remains confidential.
10. Limitations
10.1. Technical requirements. Customer acknowledges that they are responsible for ensuring that its information technology and other systems are able to work in conjunction with the system standards set forth by Heidi.
10.2. No professional medical or healthcare advice. The Customer agrees that the Platform, Output, and the Services are intended solely to support clinical administrative workflows and do not constitute medical or healthcare advice. All clinical decisions, including diagnosis, treatment, and patient care, remain the sole responsibility of qualified medical professionals. Users must not represent or rely on the Platform or Output as a source of clinical judgement, treatment recommendations, or medication guidance without independent professional assessment. Heidi makes no representations or warranties regarding any clinical actions taken based on Output and disclaims all liability for any resulting harm or damages. This disclaimer does not exclude Heidi’s liability for its own breach of this Agreement or override this Agreement’s express warranties, remedies or non-excludable rights, subject to Section 13.
10.3. Warranties. Heidi warrants that: (i) it will provide the Services in a professional and workmanlike manner in accordance with generally accepted industry practice; and (ii) during the Subscription Term, the Platform, in the form provided by Heidi, will materially perform in accordance with the Documentation. This warranty does not apply to (a) any Private Preview, (b) any use not in accordance with the Documentation or this Agreement, or (c) any defect attributable to software, hardware, or a product not supplied by Heidi.
10.4. Warranty Remedies. In the event of a breach of the warranties in the preceding subsection, Customer’s sole and exclusive remedy is limited to reperformance or correction of the non-conforming Services. If correction or reperformance is not commercially feasible within thirty (30) days of receipt of written notice from Customer, Customer may terminate the applicable Order Form upon written notice and Heidi will promptly refund to Customer all prepaid, unused Fees paid by Customer under such terminated Order Form.
10.5. Free Trials and Private Previews.
10.5.1. Free Trials. Heidi may provide free trials of the Services (“Trial”) from time to time as agreed by Heidi in writing, pursuant to an Order Form, or as made available through the Platform.
10.5.2. Private Previews. Heidi may provide Customer access to products, features, or services that are not yet generally available on a free or paid basis, including any Private Preview. Customer must comply with any additional terms posted or provided to Customer to access any Private Preview. Private Previews are not covered by customer support or the SLA unless otherwise stated. Any products, services, or features in a Private Preview may be inoperable, incomplete, or include functionality never released by Heidi. Customer should not rely on any Private Preview in any manner, and Customer’s use is at Customer’s own risk.
10.5.3. General. Trials and Private Previews are provided “as-is” without any warranties of any kind. By using a Trial or Private Preview, Customer acknowledges and agrees that the products, services, and features may contain errors, may not operate as intended, and that Customer’s use may result in data loss or other damages. Heidi will not be liable for any direct, indirect, incidental, special, consequential, or punitive damages arising out of or related to the use of a Trial or Private Preview, and Heidi’s aggregate liability for all claims arising from the use of a Trial or Private Preview will not exceed US $100.00. Subject to the express commitments and restrictions in the applicable Trial or Private Preview offer, Heidi reserves the right to modify, suspend, or discontinue a Trial or Private Preview at any time without notice and without liability to Customer. This Section applies only to the relevant Trial or Private Preview and is subject to Section 13.6 and the applicable Data Processing Agreement. Complimentary access to an additional feature does not change the liability terms or data-use protections applicable to Customer’s existing paid Services.
11. Term and Termination
11.1. Term. This Agreement commences on the Effective Date and continues for the Term, until it is terminated in accordance with Section 11.4, Section 11.5 or Section 11.6. This Agreement has no fixed expiry date. The expiry or termination of any Order Form or Statement of Work does not terminate or expire this Agreement.
11.2. Term of Order Forms and Statements of Work. Each Order Form commences on its Order Form Start Date and continues for the Subscription Term set out in it. Each Statement of Work commences on the date specified in it and continues until the services under it are completed or it is terminated in accordance with this Agreement. Order Forms and Statements of Work run independently of one another. Where an Order Form is entered into during the Subscription Term of an existing Order Form, the parties may specify in the later Order Form that its Subscription Term ends on the same date as that existing Order Form, in which case the Fees under the later Order Form will be pro-rated for the shortened period.
11.3. Renewal. Each Subscription Term under an Order Form will automatically renew for successive periods of the same duration unless either party provides written notice of non-renewal to the other at least thirty (30) days before the end of the then-current Subscription Term. Heidi will use commercially reasonable efforts to notify Customer at least sixty (60) days before the end of each Subscription Term that the Order Form is due to renew. The renewal of one Order Form does not renew any other Order Form. Any renewal will be at Heidi’s then-current pricing for the applicable Services, unless otherwise specified in the Order Form. Any pricing discounts, promotional rates, free trial periods, or other concessions applied to a prior Subscription Term do not carry over to any subsequent Subscription Term unless expressly agreed in writing by both parties.
11.4. Termination for Breach. Either party may terminate for Material Breach as follows:
11.4.1. Either party may terminate an affected Order Form or Statement of Work if the other party commits a Material Breach of that Order Form or Statement of Work, or a Material Breach of this Agreement that relates to that Order Form or Statement of Work, and does not cure the breach within thirty (30) days after receipt of written notice of the breach. Termination under this Section 11.4.1 does not terminate this Agreement or any other Order Form or Statement of Work.
11.4.2. Either party may terminate this Agreement, and every Order Form and Statement of Work then in effect, if the other party commits a Material Breach of this Agreement that is not specific to a single Order Form or Statement of Work and does not cure the breach within thirty (30) days after receipt of written notice of the breach.
11.4.3. A notice of breach under this Section must identify the breach in reasonable detail and, where the breach relates to a particular Order Form or Statement of Work, identify that Order Form or Statement of Work.
11.4.4. Heidi may terminate the affected Order Form or Statement of Work, or where the violation is not specific to a single Order Form or Statement of Work, this Agreement and every Order Form and Statement of Work then in effect, in each case on written notice, if Heidi has a good faith belief that Customer’s or any of its Users’ access to or use of the Platform violates any Applicable Law.
11.5. Termination for Insolvency. Either party may terminate this Agreement, and every Order Form and Statement of Work then in effect, immediately if a party becomes the subject of any voluntary or involuntary petition in bankruptcy or any voluntary or involuntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors, if such petition or proceeding is not dismissed within sixty (60) days of filing.
11.6. Termination for Convenience. Either party may terminate this Agreement for convenience by giving thirty (30) days’ written notice to the other party, provided that no Order Form or Statement of Work is then in effect. Where an Order Form or Statement of Work is in effect, neither party may terminate this Agreement for convenience, and this Agreement continues to govern that Order Form or Statement of Work in accordance with Section 11.8.
11.7. Suspension. Heidi may suspend Customer’s and its Users’ access to the Platform if Customer: (a) breaches Section 7 (Use of Heidi) and fails to cure such breach within ten (10) days of written notice from Heidi; or (b) fails to pay any undisputed Fees when due and does not cure such non-payment within fifteen (15) days of written notice from Heidi. Heidi may suspend access immediately where Heidi reasonably determines that immediate suspension is necessary to prevent harm to the Services, Heidi, Customer, any User, or any third party. Where the circumstances giving rise to a suspension relate only to a particular Order Form or to particular Users, Heidi will limit the suspension accordingly. Suspension is not termination, and a suspension does not of itself terminate this Agreement, any Order Form or any Statement of Work. No refunds or credits are available for suspension periods under this Section.
11.8. Relationship between this Agreement, Order Forms and Statements of Work on Termination. The following rules apply on any expiry or termination:
11.8.1. The expiry or termination of an Order Form or Statement of Work does not terminate or expire this Agreement, or any other Order Form or Statement of Work, unless this Agreement expressly provides otherwise or that Order Form or Statement of Work expressly states that its expiry or termination also terminates this Agreement.
11.8.2. Termination of this Agreement under Section 11.4.2, Section 11.4.4 or Section 11.5 also terminates every Order Form and Statement of Work then in effect, with effect from the same date.
11.8.3. Except as provided in Section 11.8.2, if this Agreement is terminated while any Order Form or Statement of Work remains in effect, the terms of this Agreement continue to apply to that Order Form or Statement of Work as if this Agreement had not been terminated, until that Order Form or Statement of Work expires or is terminated in accordance with its terms.
11.8.4. This Agreement is not terminated, suspended, or otherwise affected by the absence of any Order Form or Statement of Work. Where no Order Form or Statement of Work is in effect, this Agreement continues to govern any Order Form or Statement of Work subsequently entered into, until this Agreement is terminated in accordance with this Section 11.
11.9. Refunds. Except as expressly provided in this Agreement or as required by Applicable Laws, Heidi will not refund any Fees or other amounts previously paid by Customer. Where Customer terminates an Order Form under Section 11.4.1, or this Agreement and every Order Form under Section 11.4.2, in each case for Heidi’s uncured Material Breach, or where Customer terminates under Section 11.5 for Heidi’s insolvency, Heidi will refund to Customer the prepaid, unused Fees for the remainder of the then-current Subscription Term of each affected Order Form, calculated pro rata from the effective date of termination.
11.10. Effect of Expiry or Termination of an Order Form or Statement of Work. Upon the expiry or termination of an Order Form or Statement of Work:
11.10.1. Customer must pay all outstanding Fees and other amounts due under that Order Form or Statement of Work, including any amounts owed under an indemnity;
11.10.2. the rights granted to Customer and its Users under that Order Form or Statement of Work, including the right to access and use the Platform under it, will cease;
11.10.3. Heidi will, on Customer’s written request made within thirty (30) days after the expiry or termination, make the Customer Data associated with that Order Form available to Customer for export in a commonly used machine-readable format; and
11.10.4. this Agreement, and every other Order Form and Statement of Work, continue in full force and effect in accordance with Section 11.8.
11.11. Effect of Expiry or Termination of this Agreement. Upon the expiry or termination of this Agreement and of every Order Form and Statement of Work:
11.11.1. Customer must pay all outstanding Fees and other amounts due under this Agreement, including any amounts owed under an indemnity;
11.11.2. the licence granted by Heidi to Customer will cease, and each party will cease providing and using the Platform and related services;
11.11.3. Heidi will handle Customer Data in accordance with the applicable Data Processing Agreement, including its provisions on retention, return, export, and deletion, and will delete Customer Data within the period specified in that Data Processing Agreement; and
11.11.4. termination will not affect any accrued rights or liabilities of either party, and the provisions identified in Section 11.12 will survive.
11.12. Survival. The following provisions survive the expiry or termination of this Agreement, and of each Order Form and Statement of Work: Section 1 (Definitions); Section 2.1 (Framework); Section 5 (Fees and payments), in respect of amounts accrued before the effective date of termination; Section 6.5 (No AI Model Training); Section 6.7 (De-Identified Data) and Section 6.8 (Usage Data); Section 8 (Intellectual Property); Section 9 (Confidential Information); Section 10.2 (No professional medical or healthcare advice); this Section 11; Section 12 (Indemnity); Section 13 (Limitation of Liability, Exclusions, and Disclaimer); Section 14 (Jurisdiction and Dispute Resolution); and Section 15 (General). No other provision survives except to the extent necessary to give effect to those provisions or to any accrued right or liability.
12. Indemnity
12.1. Heidi Indemnification. Heidi shall defend, indemnify, and hold harmless Customer and its directors, officers, employees, and agents from and against any third party claims, actions, proceedings, demands, lawsuits, damages, liabilities, and expenses (including reasonable attorneys’ fees and court costs) (collectively, “Claims”) to the extent based on any claim that Customer or its Users’ authorised use of the Platform infringes or misappropriates a third party’s intellectual property rights.
12.2. Customer Indemnification. Customer must at all times indemnify and hold harmless Heidi and its shareholders, directors, officers, employees, and agents from and against any and all Claims arising out of or relating to (a) Customer’s or any User’s use of the Platform in violation of this Agreement or Applicable Laws or (b) any claim made by a patient in relation to any act or omission of Customer, except to the extent the Claims are attributable to the negligence, unlawful conduct, or wilful misconduct of Heidi or its related bodies corporate.
12.3. Exclusion. Heidi’s obligations in Section 12.1 above shall not apply to any Claim to the extent arising out of or relating to: (a) misuse of the Platform, (b) any modification or alteration of the Platform not created or approved in writing by Heidi, (c) any combination of the Platform with any computer, software, service, or anything else not provided by Heidi, but only to the extent such Claim would not have arisen but for such combination, or (d) Heidi’s compliance with specifications or other requirements of Customer.
12.4. Conditions. The obligations of the parties in this Section are conditioned upon the indemnified party (“Indemnitee”): (i) promptly notifying the indemnifying party (“Indemnitor”) in writing of any Claim for which indemnification is sought, provided that failure to provide such notice will only relieve Indemnitor of its obligations under this Section to the extent its ability to defend or settle the Claim is materially prejudiced by such failure; (ii) giving Indemnitor, at Indemnitor’s expense, reasonable assistance and information requested by Indemnitor in connection with the defence and settlement of the Claim; and (iii) tendering to Indemnitor sole control over the defence and settlement of the Claim. Indemnitee’s counsel may participate in the defence of the Claim at Indemnitee’s own expense. Neither party may impose any obligation on the other party or make any admission of liability or wrongdoing on behalf of the other party in connection with any Claim, and neither party may settle any Claim without the other party’s prior written consent.
12.5. If the Platform is or may be subject to a claim of infringement of third party’s intellectual property rights, Heidi may, at its cost and sole discretion: (i) obtain the right for Customer to continue using the Platform as contemplated herein, (ii) replace or modify the Platform so that it becomes non-infringing without substantially compromising its principal functions, or (iii) to the extent the foregoing are not commercially reasonable, terminate the affected Order Forms and Statements of Work and refund to Customer any prepaid, unused Fees under them, calculated pro rata from the effective date of termination. Heidi’s obligations in this Section are Heidi’s sole obligations, and Customer’s sole remedies, in the event of any infringement of intellectual property rights by or related to the Platform.
13. Limitation of Liability, Exclusions, and Disclaimer
13.1. Disclaimer of AI Usage. The Platform incorporates artificial intelligence and machine learning technologies. While Heidi strives to ensure the accuracy, reliability, and safety of the Platform and its Output, due to the probabilistic nature of such technologies, Output may at times be inaccurate, incomplete, or contextually inappropriate. Despite ongoing efforts to improve the Platform, it remains the User’s responsibility to assess the accuracy and appropriateness of any Output. Users should independently review and validate any Output before relying on it or using it further, particularly in clinical or operational contexts. Heidi does not guarantee that the Platform will be error-free or that errors will not occur beyond its reasonable control. Accordingly, Heidi makes no representations or warranties, express or implied, as to the accuracy, completeness, suitability, or applicability of any Output.
13.2. Disclaimer of Indirect Damages. TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL, OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION ANY LOSS OF REVENUE, SAVINGS, DATA, OR BUSINESS OPPORTUNITY) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OF THE PLATFORM, REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING EXCLUSION DOES NOT APPLY TO A PARTY’S REASONABLE, DOCUMENTED BREACH-RESPONSE COSTS OR COSTS OF NOTIFICATIONS REQUIRED BY APPLICABLE DATA PROTECTION LAWS (INCLUDING NOTIFICATIONS REQUIRED BY SUBPART D OF 45 CFR PART 164 UNDER AN APPLICABLE BUSINESS ASSOCIATE AGREEMENT), TO THE EXTENT CAUSED BY THE OTHER PARTY’S BREACH OF ITS CONFIDENTIALITY, SECURITY, OR PRIVACY OBLIGATIONS UNDER THIS AGREEMENT (INCLUDING ANY DATA PROCESSING AGREEMENT); SUCH COSTS ARE RECOVERABLE AS DIRECT DAMAGES AND WILL NOT BE EXCLUDED MERELY BECAUSE THEY ARE CHARACTERISED AS INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL. SUCH COSTS REMAIN SUBJECT TO THE LIMITATIONS OF LIABILITY IN THIS SECTION 13, INCLUDING THE ENHANCED CAP IN SECTION 13.5.
NOTHING IN THIS AGREEMENT LIMITS OR EXCLUDES ANY CONSUMER RIGHTS THAT CANNOT BE WAIVED OR LIMITED UNDER APPLICABLE LAW.
13.3. Platform Provided “As Is”. EXCEPT AS PROVIDED IN THIS AGREEMENT, CUSTOMER UNDERSTANDS AND AGREES THAT OUTPUT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IS PROVIDED “AS IS” AND HEIDI EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.
13.4. General Cap. To the extent permitted by law, and except for a party’s breach of its confidentiality, security, or privacy obligations under this Agreement (including any Data Processing Agreement), gross negligence, wilful misconduct, or a party’s indemnification obligations, the aggregate liability of either party arising out of or related to this Agreement will not exceed the amounts paid or payable by Customer for the Services during the twelve (12) month period immediately preceding the first event giving rise to the liability.
13.5. Enhanced Cap. SUBJECT TO SECTION 13.6 AND THE EXCLUSIONS FOR GROSS NEGLIGENCE, WILFUL MISCONDUCT AND INDEMNIFICATION OBLIGATIONS IN SECTION 13.4, A PARTY’S LIABILITY FOR A BREACH OF ITS CONFIDENTIALITY, SECURITY, OR PRIVACY OBLIGATIONS UNDER THIS AGREEMENT (INCLUDING ANY DATA PROCESSING AGREEMENT) WILL NOT EXCEED TWO TIMES (2X) THE AMOUNTS PAID OR PAYABLE BY CUSTOMER FOR THE SERVICES DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO THE LIABILITY.
13.6. Non-Excludable Liability. Nothing in this Agreement excludes or limits any liability that cannot lawfully be excluded or limited under the law governing the applicable Order Form, including any non-excludable consumer guarantees, statutory data subject rights, or liability for death or personal injury caused by negligence. Where liability under a non-excludable guarantee, warranty, or condition may lawfully be limited, Heidi’s liability for a breach of it is limited, at Heidi’s option, to re-supplying the affected Services or paying the cost of having them re-supplied.
13.7. Risk Allocation. BY ENTERING INTO THIS AGREEMENT, CUSTOMER ACKNOWLEDGES AND AGREES THAT HEIDI’S PRICING AND THE SERVICES ARE BASED UPON THE DISCLAIMERS OF WARRANTY AND THE LIMITATIONS OF LIABILITY IN THIS AGREEMENT. THESE TERMS ARE INTENDED TO FAIRLY ALLOCATE RISK BETWEEN THE PARTIES. THE DISCLAIMERS OF WARRANTY AND THE LIMITATIONS OF LIABILITY FORM THE ESSENTIAL BASIS OF THE BARGAIN BETWEEN CUSTOMER AND HEIDI.
14. Jurisdiction and Dispute Resolution
14.1. Governing Law and Jurisdiction. This Agreement is governed by, and interpreted in accordance with, the laws specified in the table below based on the Customer Location, without regard to conflicts of laws principles. The parties consent to the exclusive jurisdiction of the courts specified in the table below. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
Customer Location
Contracting Entity
Governing Law
Courts
United States
Heidi Health Corp.
Delaware
Federal and state courts of Delaware
United Kingdom
Heidi Health Ltd (registered in England and Wales, company number 15878893)
England and Wales
Courts of London
Australia
Heidi Health Trading Pty Limited
Victoria, Australia
Courts of Victoria and Federal Court of Australia
Canada
Heidi Health Canada Inc.
Ontario, Canada
Courts of Ontario
New Zealand
Heidi Health Trading Pty Limited
New Zealand
Courts of New Zealand
All other countries
Heidi Health Trading Pty Limited
Victoria, Australia
Courts of Victoria and Federal Court of Australia
14.2. Dispute Resolution. In the event of any dispute, controversy, or claim arising out of or in connection with this Agreement, the parties shall endeavour to resolve the matter through good faith negotiations. If a dispute cannot be resolved informally, either party may seek further resolution in accordance with the governing law provision.
15. General
15.1. Modifications/Supplemental Terms. The Platform may be modified and evolve over time, and new features or offerings may be added by Heidi. Heidi will use commercially reasonable efforts to notify Customer of material changes through the Platform, Heidi’s website, or other electronic means. Heidi may offer features or services subject to the applicable Product Terms or further supplemental terms and conditions (“Supplemental Terms”). The applicable Product Terms and Supplemental Terms are incorporated into this Agreement for the relevant products, features or services when validly agreed under this Agreement and Applicable Laws. Activation or use constitutes acceptance only to the extent permitted by this Agreement and Applicable Laws; where affirmative acceptance is required, Heidi will obtain it from a duly authorised representative of Customer. Any purchase or commercial change must be recorded under Section 2.2, subject to Section 5.4, and any variation to this Agreement or an Order Form must expressly identify the provision varied and its limited scope and be agreed in accordance with Section 15.11. This Agreement and Customer’s existing purchase otherwise remain unchanged; Section 15.4 governs precedence. If Customer does not agree to the applicable terms, Customer must not activate or use the relevant product, feature or service; its existing Services and agreed inclusions otherwise remain unaffected. Credit-rate updates permitted under Section 5.4 are governed by that Section and do not require the notice, ordering or variation process otherwise described in this Section.
15.2. Relationship of Parties. The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise, or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.
15.3. Force Majeure. Neither party will be liable for any delay or failure to perform any obligation under this Agreement (except for a failure to pay Fees) due to a Force Majeure Event. The affected party must give prompt notice to the other party and use reasonable efforts to resume performance. If a Force Majeure Event prevents a party from performing its material obligations under an Order Form or Statement of Work for thirty (30) or more consecutive days, either party may terminate the affected Order Form or Statement of Work upon written notice. Upon such termination, if Heidi’s ability to provide the Services was affected, Heidi will refund to Customer a pro-rata portion of any prepaid Fees for the remaining unused Subscription Term of the terminated Order Form.
15.4. Entire Agreement. This Agreement, together with each Order Form and each Statement of Work, constitutes the entire agreement between the parties relating to the subject matter hereof and supersedes any prior or contemporaneous agreements, understandings, or arrangements, whether written or oral. Notwithstanding the foregoing, this Agreement does not supersede any non-disclosure or confidentiality agreement, business associate agreement, data processing agreement, information manager agreement, or similar confidentiality or data protection instrument previously executed by the parties, each of which remains in full force and effect unless and until expressly superseded by a subsequent written agreement between the parties (including, in the case of a data protection instrument, the applicable Data Processing Agreement identified in Section 6.3). In the event of any conflict between such an instrument and this Agreement with respect to the processing of Personal Information or Personal Health Information, that instrument prevails to the extent of the conflict. Subject to any variation expressly identified and validly agreed under Section 2.7 or Section 15.1 in accordance with Section 15.11, the order of precedence in the event of any conflict is: (i) the applicable Order Form or Statement of Work, but only in respect of the transaction under it and only to the extent it complies with Section 2.7; (ii) the applicable Data Processing Agreement, in respect of the processing of Personal Information and Personal Health Information; (iii) this Agreement; (iv) the applicable Product Terms; and (v) any Supplemental Terms. Acceptance of Product Terms or Supplemental Terms does not by itself supersede a separately negotiated provision or an applicable confidentiality or data-protection instrument. A variation to such a provision or instrument must specifically identify the provision being varied and satisfy its applicable agreement requirements. In the event of any conflict between this Agreement and any Heidi Policy, including the Privacy Policy or the Usage Policy, this Agreement prevails. Any purchase order issued by Customer is for its internal, administrative use only and cannot modify this Agreement, an Order Form or a Statement of Work; any conflicting terms in such purchase order are void. Nothing in that order of precedence permits an Order Form, Statement of Work, Product Terms, Supplemental Terms or Heidi Policy to vary a Data Processing Agreement or Business Associate Agreement without satisfying that instrument’s amendment requirements. Mandatory transfer clauses prevail as specified in the applicable Data Processing Agreement. A Business Associate Agreement controls in relation to protected health information to the extent of any conflict with other data-processing terms, without displacing mandatory requirements of Applicable Data Protection Laws.
15.5. Severability. If any part or provision of the terms in this Agreement are invalid, unenforceable, or in conflict with Applicable Laws, the invalid or unenforceable part or provision will be replaced with a provision which, as far as possible, accomplishes the original purpose of the part or provision. The remainder of the terms will be binding on the parties.
15.6. Injunctive Relief. Each party acknowledges that its violation of any intellectual property rights or confidentiality obligations herein (including any limitations or restrictions on use of the Heidi Materials) will cause substantial harm to the other party that cannot be remedied by monetary damages. Accordingly, the harmed party shall be entitled to seek injunctive relief or other equitable relief, for any such breach, without a requirement to post bond, in any court of competent jurisdiction.
15.7. Marketing and Logo Use. Customer grants Heidi the right to identify Customer as a user of the Services, including by using Customer’s name and logo, on its website and in marketing and promotional materials. If the applicable Order Form designates that a Marketing Package applies and specifies the Package(s) elected, Schedule 1 (Marketing Package Terms) applies to those elected Packages for the applicable Subscription Term and prevails over this Section to the extent of any inconsistency. Subject to Schedule 1 where applicable, Customer may revoke its logo use consent at any time by providing written notice to Heidi.
15.8. Trade Compliance. Each party shall comply with all applicable trade sanctions, export control, and anti-boycott laws and regulations in connection with the performance of this Agreement. Customer represents that it is not located in, organised under the laws of, or a resident of any country or territory that is the target of comprehensive trade sanctions, and is not a person or entity with whom transactions are prohibited under applicable sanctions laws. Neither party shall, directly or indirectly, export, re-export, or make available the Platform or any related technology to any person, entity, or destination prohibited by applicable sanctions or export control laws.
15.9. Assignment. Neither party may assign or otherwise transfer this Agreement, or any Order Form or Statement of Work, in whole or in part, without the prior written consent of the other party, which may not be unreasonably withheld. Notwithstanding the foregoing, either party may assign this Agreement to a successor in connection with a merger, acquisition, or sale of all or substantially all of its business or assets to which this Agreement relates, provided that the assignee agrees in writing to assume all obligations under this Agreement. Subject to this Section, this Agreement will be binding on the parties and their respective successors and permitted assigns.
15.10. Notice. Either party may give notice under this Agreement by electronic mail. Notices to Heidi must be sent to compliance@heidihealth.com, and notices to Customer must be sent to the email address associated with Customer’s Account.
15.11. Amendments; Waivers. Except for the incorporation and application of Product Terms and Supplemental Terms under Section 15.1, no supplement, modification, or amendment of this Agreement shall be binding, unless executed in writing by a duly authorised representative of each party to this Agreement. Any variation to an existing provision of this Agreement or an Order Form must satisfy that execution requirement. The parties may satisfy that requirement electronically, including through an ordering process under Section 2.2, provided the retained record identifies the parties, the exact terms agreed, and each party’s authorised act of execution with the intention to be bound. Heidi may execute an offer before making it available for Customer’s electronic acceptance or apply an authorised electronic countersignature through that process. Heidi will retain the completed record and make it available to Customer. An individual’s access to or use of a feature alone does not constitute execution of an amendment on Customer’s behalf. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorised representative on behalf of the party claimed to have waived. No provision of any other communication or other business form employed by Customer, including any electronic invoicing portals and vendor registration processes, will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement shall be for administrative purposes only and shall have no legal effect. Credit-rate updates permitted under Section 5.4 do not require execution of a separate amendment under this Section.
15.12. Compliance with Laws. Each party shall comply with all Applicable Laws that apply to it in the performance of its obligations and the exercise of its rights under this Agreement. As between the parties, Heidi is responsible for compliance with Applicable Laws governing its provision of the Services, and Customer is responsible for compliance with Applicable Laws and professional obligations governing its and its Users’ access to and use of the Services and the provision of healthcare, including obtaining any patient or individual consents required in the Customer Location.
