Through the MOAI Health web app, organisations are able to design, schedule and deploy wellbeing assessments to its employees and other staff members for the purposes of having a better understanding of, and promoting greater wellbeing.
Once completed, organisations and their users may then access certain outputs via the web app dashboard, whether it be summary reports for the organisation to view (from which personal data has been removed) or for the users themselves, the results of the assessments taken by them.
1. These terms and conditions
1.1 These terms (“Terms”) will apply to all software services and related content provided via the MOAI Health platform, a web app operated by us, MOAI Health Limited (company number: 12924603), (“MOAI”, “we” or us”) to which you, the Subscriber (“you” or “Subscriber”) have specifically subscribed (“Service”). Accordingly, if you do not agree with any of the provisions set out in these Terms, you should not register an account with us.
1.2 These Terms should be read in conjunction with any Schedules attached which together, comprise the contract between you and us for use of the Service (the “Agreement”). Separate end user terms will also apply between us and the individual staff member or employee of the Subscriber who accesses and uses the Service.
1.3 Without prejudice to the other provisions in these Terms, please note these Terms may be amended from time to time. Notification of any changes will be made by posting new terms onto the MOAI health platform. In continuing to use the Service, you confirm that you accept the then current Terms in full at the time you use the Service.
2. Definitions
2.1 In this Agreement the following expressions have the meanings stated, unless the context otherwise requires:
“Administrator”: means an individual employee of yours who is entitled to administer the Service on your behalf and receive information in relation to the End Users;
“Subscriber’s Group”: shall be the Subscriber, Subscriber’s parent company holding a majority interest in the Subscriber, any such parent company’s majority owned subsidiaries, and the Subscriber’s majority owned subsidiaries;
“End User”: means any staff or employee who is authorised by you to access the Service whether as a user or Administrator;
“Fees”: means the fees payable in order to access and use the Service, including the relevant Subscription Fees;
“Initial Subscription Term”: has the meaning set out in clause 11.1;
“Intellectual Property Rights”: means patents, utility models, rights to inventions, copyright and related rights, trademarks and service marks, trade names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to preserve the confidentiality of information (including know-how and trade secrets) and any other intellectual property rights, including all applications for (and rights to apply for and be granted), renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist, now or in the future, in any part of the world;
“Renewal Date”: means either: the last day of the Initial Subscription Term; or an anniversary of the last day of the Initial Subscription Term.
“Renewal Period”: has the meaning set out in clause 11.1;
“Service”: means the software service and related content to which you have subscribed via the Moai Health platform and which includes access for End Users;
“Start Date”: the date on which access to the Service commences;
"Software": refers to the software integral to the operation of the Service and any background software which we use in providing the Service;
“Subscriber”: refers to the subscriber who has registered with the MOAI Health platform and subscribed to our Service. To “subscribe” is to be interpreted accordingly;
"Subscription Fee": the fee for the Service subscription, as may be varied in accordance with clause 5 below;
“Subscription Term”: means the term of your subscription to the Service;
“Use”: the use, copying or transmission of the Service in any manner whatsoever.
2.2 In addition to the terms referred to above, defined words and phrases are also embedded within the text of this Agreement.
3. The Service
3.1 The Service is an enterprise web application made accessible to the Subscriber via API and may only be used by a user to the extent such an individual is an End User of the Subscriber. In order to subscribe to our Service and for your staff or employees to have use of the Service, you must be a “Subscriber” as defined above and comply with the terms herein. You accept sole responsibility for obtaining appropriate local or national accreditations, memberships, affiliations, insurances (or other relevant requirements) for conducting your business as a Subscriber.
3.2 Notwithstanding anything to the contrary, this Agreement does not in any circumstances permit you to sign up to or otherwise use the Service, (i) in order to supply similar services to any third party, whether as a reseller or authorise, or (ii) to the extent you are a healthcare organisation and are seeking to use the Service for any reason or purpose other than for genuinely seeking to understand the organisation’s own internal staff members’ wellbeing.
3.3 You will be required to register an administration account with us in order for your Administrator(s) to access the Service. Such an administration account is strictly for the Subscriber’s use and you are not authorised to share or otherwise permit any other individual outside of the organisation to have access to or use your administration account, including members of the Subscriber’s Group (unless authorised by us in writing). For the avoidance of doubt, End Users (other than the Administrator(s)) are not permitted to have access to your administration account with us but may otherwise access the Service (including without limitation reviewing and completing wellbeing assessments) provided they have agreed to comply with the end user terms. End Users may also register a separate account with us, for instance if they wish to review the results from their assessments, however they are not obliged in any way to do so.
3.4 We may offer differing levels of subscription with access to different levels of functionality, modules or services. Accordingly, access to certain features may be restricted or limited, depending on your subscription type and if you would like to upgrade your subscription type, additional fees may apply.
3.5 We reserve the right to add or remove services and functionality from any subscription type or to add or remove subscription types.
3.6 End Users may be subject to differing permission or access levels depending on the subscription you have taken out and which we will specify. We reserve the right to change the level of access or permissions applicable.
3.7 You agree to use commercially reasonable efforts to prevent unauthorised access to, or use of, the Service and will notify us as soon as possible if you become aware of any unauthorised access or use. You agree to only use the Service for lawful purposes and not to violate any law of any country or the intellectual property rights of any third party.
3.8 We will provide you with our customer support services in accordance with the provisions in Schedule 1. Notwithstanding this, we may from time to time and at our discretion, vary our support services. If you require enhanced support please contact us at support@moaihealth.app.
4. Restrictions
4.1 In relation to the End Users, you undertake:
4.1.1 that the number shall not exceed the agreed maximum;
4.1.2 not to allow any individual End User licence to be used by more than one individual End User; and
4.1.3 to procure that each End User shall access the Service using their unique login details.
4.2 You agree that you will not, except as i) expressly set out in this Agreement, ii) may be agreed in writing between the Parties, or iii) permitted by applicable law which is incapable of exclusion by this Agreement:
4.2.1 attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Service or Software in any form or media or by any means;
4.2.2 attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Service or Software;
4.2.3 access all or any part of the Service, Software in order to build a product or service which competes with the Service;
4.2.4 license, sell, rent, lease, transfer, assign, distribute, display, disclose, commercially exploit, or otherwise make the Service available to any third party except the End Users in accordance with this Agreement;
4.2.5 make available in any way for the use or benefit of any unauthorised party, any information, materials, software, or other proprietary information received from us, in whole or in part, unless we agree in writing;
4.2.6 remove, deface, obscure, or alter our or any third party's copyright notices, trademarks or other proprietary rights notices affixed to or provided as part of the Service;
4.2.7 input, upload or otherwise store any documentation, materials, information or other content to the Service which is false, inaccurate or otherwise misleading, illegal, defamatory, fraudulent, offensive or infringing on any party;
4.2.8 upload any files or content that contain viruses, corrupted files, or malicious code or any other similar software or programs that may damage the operation of the Software or Service;
4.2.9 modify, incorporate into or use the Service or Software with other software, or create a derivative work;
4.2.10 use any robot, spider, scraper, or other automated means to access the Service, Software for any purpose without our written consent; or
4.2.11 attempt to obtain, or assist third parties in obtaining, access to the Service other than in accordance with this Agreement.
4.3 We will not be responsible for your integration of the Service within your systems and are not liable for any loss, damage or liability that may arise as a result of this.
5. Fees & Payment
5.1 You agree to pay all applicable Fees (including the Subscription Fees) in accordance with these Terms. The Subscription Fee shall be payable in advance of the Start Date, and no less than 30 days from the invoice date. In the event the Subscriber purchases additional Administrator or other End User licences following the Start Date, the relevant additional fees shall be invoiced to you and shall be payable no less than 30 days from the relevant invoice date.
5.2 We reserve the right to charge you interest in respect of the late payment of any sum due under this Agreement (after as well as before judgment) at the rate of 4 per cent per annum above the base rate from time to time of the Bank of England from the due date until payment.
5.3 Notwithstanding clause 5.1 above, to the extent we have provided access to the Service but there remains Fees due from you which are outstanding for 30 days or more from the payment due date, we may at our discretion suspend access to the Service immediately and, we may delete your and the End Users’ accounts with MOAI including any data or content uploaded or otherwise inputted.
5.4 We may offer differing levels of subscription with access to different levels of functionality, modules or services. Accordingly, access to certain features may be restricted or limited, depending on your subscription type and if you would like to upgrade your subscription type, additional fees may apply.
5.5 We may at our sole discretion offer a free trial to certain modules or features of the Service to help you determine whether our Service is right for you. At the end this period, you will automatically roll-over onto the payment plan for the agreed Subscription Term unless you tell us in writing at least 30 days before the trial end date that you do not wish to continue using our Service. If you do not wish to continue using our Service, we recommend that you terminate your account before or upon completion of the free trial period in order to avoid automatically rolling-over onto the payment plan for the agreed Subscription Term. Please contact support@moaihealth.app should you require assistance terminating your account.
5.6 We reserve the right to change or amend our Subscription Fees at any time. You will receive notice of these changes no less than 30 days before any changes take effect. In the event the Subscription Fees are increased and you do not wish to continue your Subscription at the increased revised fees, you must terminate your account prior to these changes taking effect and in such event, we will refund a pro rata proportion of any Subscription Fees paid in advance by you. Failure to terminate your account in time will result in you being billed in full for the relevant subscription you signed up to, in agreement with these terms and such Fees will be non-refundable.
6. Data Protection
6.1 MOAI and the Subscriber agree to comply with their respective obligations under applicable data protection legislation in force from time to time including without limitation the General Data Protection Regulation ((EU) 2016/679) (GDPR), the retained EU law version of the GDPR (“UK GDPR”) and the Data Protection Act 2018.
6.2 MOAI agrees to process the personal data for which it is a controller in accordance with its Privacy Notice.
6.3 If and to the extent that MOAI processes personal data on behalf of the Subscriber for which the Subscriber is the controller, the provisions set out in Schedule 2 will apply and the Parties agree to comply with the provisions accordingly.
7. Intellectual Property and Third Party Licence
7.1 You acknowledge that all Intellectual Property Rights in the Software and Service belong and shall belong to us or our licensors (as the case may be), and neither you nor the End Users shall have any rights in or to the Software or Service other than the right to access the Service in accordance with the terms of this Agreement.
7.2 To the extent we incorporate third party elements into the Service, you agree to comply with the terms of such third party end-user licence agreement to the extent that and communicate these terms to you prior to the commencement of your subscription.
7.3 You acknowledge and agree the Service may include links to other external websites or materials. We are not responsible for content on any site outside the Service so if you do follow a link to any of these websites, you acknowledge you do so at your own risk and we will not be liable or otherwise be responsible in any way in relation to this.
8. Warranty
8.1 Subject to the exceptions set out below and the limitations on our liability, we warrant that we have the right power and authority to authorise access to the Service upon the terms and conditions of this Agreement and that the Service will comply in material respects with the functionality described (whether as part of the Confirmation Form or our other marketing materials) when you register for the Service.
8.2 The Service is provided “as is” and we do not warrant that the use of or Service will be uninterrupted, error-free or 100% accurate.
8.3 The Service may be unavailable during our planned maintenance windows (in which case we will give you reasonable prior written notice) as well as, in certain limited circumstances, for unscheduled maintenance purposes.
8.4 We will have no liability to remedy a breach of warranty where such breach arises as a result of any breach by you of the terms of this Agreement.
8.5 All other conditions, warranties or other terms which might have effect between the Parties or be implied or incorporated into this Agreement or any collateral contract, whether by statute, common law or otherwise, are hereby excluded, including the implied conditions, warranties or other terms as to including but not limited to the warranties of satisfactory quality, merchantability, fitness for a particular purpose and non-infringement.
8.6 We may, at our discretion, remedy any breach of warranty by the provision of technical support free of charge.
9. Limitation of Liability
9.1 Except as expressly stated in this clause 9:
9.1.1 We shall not in any circumstances have any liability for any losses or damages which may be suffered by you (or any person claiming under or through you), whether the same are suffered directly or indirectly and whether the same arise in contract, tort (including negligence) or otherwise howsoever, and which fall within any of the following categories: loss of profits; loss of revenue; loss of anticipated savings; loss of business opportunity; loss of goodwill; loss or corruption of data; indirect or consequential losses.
9.2 We are not responsible for verifying or authenticating your End Users and cannot guarantee that each user is the person they purport to be. We will therefore not be liable for fraudulent use of the Service by third parties (including supposed End Users) save in circumstances arising directly from our negligence.
9.3 You accept responsibility for the selection of the Service to achieve your intended results and acknowledge that the Service has not been developed to your specific requirements and we do not guarantee any particular level of engagement or outcome. In addition, you further acknowledge there is a risk (albeit a low one) of psychological distress to End Users arising in connection with undertaking assessments as part of the Service and/or encountering negative appraisals of various components of their wellbeing, and that we shall not be liable or otherwise responsible in such circumstances.
9.4 We are not in a position to evaluate risks associated with your use of the Service for regulatory compliance. Accordingly if you propose to use the Service to comply with your regulatory obligations, it is your responsibility to ensure that the Service meets such requirements.
9.5 We will not be liable for any losses arising from the integration of the Service with any other software or systems used by you.
9.6 Our total liability, whether in contract, tort (including negligence) or otherwise and whether in connection with this Agreement or any collateral contract, shall in no circumstances exceed a sum equal to 100% of the Fees paid by you in the 12 month period leading up to the claim.
9.7 The exclusions in this clause 9 shall apply to the fullest extent permissible at law, but we do not limit or exclude liability for:
9.7.1 death or personal injury caused by our negligence, or the negligence of our officers, employees, contractors or agents;
9.7.2 fraud or fraudulent misrepresentation;
9.7.3 any other liability which may not be limited or excluded by law.
9.8 All dates supplied by us for the commencement of the Service shall be treated as approximate only. We shall not in any circumstances be liable for any loss or damage arising from any delay in delivery beyond such approximate dates.
10. Confidentiality
10.1 The Parties will keep confidential all information (written or oral) concerning the business and affairs of the other that it shall have obtained or received as a result of the discussions leading up to or the entering into of this Agreement save that which is:
10.1.1 trivial or obvious;
10.1.2 already in its possession other than as a result of a breach of this clause; or
10.1.3 already in or subsequently enters the public domain other than as a result of a breach of this clause.
10.2 You acknowledge and hereby grant consent to MOAI to disclose such confidential information to its employees/staff, professional advisers, insurers, agents and subcontractors, as required by (i) law, regulation, judicial or administrative process, (ii) in accordance with applicable professional standards, or (iii) as necessary in the performance of the services pursuant to this Agreement, as deemed appropriate.
10.3 Each of the Parties will take all such steps as shall from time to time be necessary to ensure compliance with the provisions of this clause by its employees/staff, agents and subcontractors.
10.4 For the avoidance of doubt, these terms apply throughout the Subscription Term and shall continue following termination of this Agreement. In addition, any information relating to the running of MOAI, such as processes relating to technology, methodologies, machine learning and/or other items relating to our Service will also remain confidential beyond the Subscription Term.
11. Term, Renewals & Termination
11.1 The Agreement shall, unless otherwise terminated as provided in this clause, commence on the Start Date and continue for the minimum subscription term specified in the Confirmation Form (“Initial Subscription Term”). Thereafter this Agreement shall be automatically renewed on the Renewal Date for successive periods equivalent to the Initial Subscription Term (each a “Renewal Period”).
11.2 Notwithstanding the above or anything to the contrary in these terms, you are free to cancel your subscription to the Service at any time. Upon cancelling your subscription, you will have access to our Service for the remainder of the Subscription Term however all Fees will still be due and payable by the Subscriber for the full Initial Subscription Term or Renewal Period as the case may be and no refunds will be made. At the end of the applicable Subscription Term or upon an End User ceasing to be engaged (as the case may be), you and/or the End User will no longer be permitted to access the Service, save that an End User will still be permitted to access assessment results or other outputs that relate to them and that were generated prior to the effective termination date, for a period of up to 5 years.
11.3 Should you not wish to renew your subscription you must provide at least 30 days’ notice in writing by contacting customer service at support@moaihealth.app prior to the relevant Renewal Date, in which case this Agreement shall terminate upon the expiry of the relevant period. If the Subscriber does not cancel their subscription in time and they enter a new billing period, the Fees in respect of that new period will still be payable by the Subscriber and will not be refunded for any such Fees paid.
11.4 Without affecting any other rights or remedies available to it and to the extent permitted by law, either Party may terminate this Agreement with immediate effect by giving written notice to the other Party if:
11.4.1 the other Party fails to pay any amount due under this Agreement on the due date for payment and remains in default for 30 days or more after being notified in writing to make such payment;
11.4.2 the other Party commits a material breach of any other term of this Agreement whereby such breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so; or
11.4.3 either Party enters into insolvency.
11.5 For the purposes of clause 11.4, a Party shall be regarded as entering into insolvency if:
11.5.1 it suspends or ceases or threatens to suspend or cease all or a substantial part of its operations;
11.5.2 a meeting is convened, an order made or a resolution passed for its winding-up (except for the purposes of a reconstruction or amalgamation whilst solvent);
11.5.3 a petition is presented for its winding up and not stayed, dismissed or withdrawn within 10 days (unless it is demonstrated to the other party’s satisfaction that the petition is frivolous or vexatious and it is dismissed before the petition is advertised and in any event within 14 days of presentation);
11.5.4 a petition is presented for the appointment of an administrator in relation to it and is not dismissed within two days or in the case of a petition presented by a creditor, within two days of actual service by that creditor on it;
11.5.5 a distress, execution or other legal process is levied against any of its assets and is not discharged or paid out in full within three days;
11.5.6 an encumbrancer takes possession of or a receiver or an administrator or similar official is appointed in respect of the whole or any part of its assets or undertaking;
11.5.7 it ceases or suspends generally the payment of its debts or is unable to pay its debts or is deemed unable to pay its debts within the meaning of s123 Insolvency Act 1986; or
11.5.8 if any event occurs which, under the applicable law of any relevant jurisdiction, has an analogous or equivalent effect to any of the events mentioned above.
12. User Generated Content
12.1 You acknowledge and agree that in using the Service, certain outputs and other content will be generated (such as responses to MOAI assessments carried out by End Users) and we accordingly reserve the right to use such content in the following ways:
12.1.1 In order to provide the Subscriber with summary/statistical reports;
12.1.2 Data may be published in peer-reviewed journals as part of our ongoing research purposes; and/or
12.1.3 Summary statistics may form part of our marketing literature and other promotional materials
however in each case, we adhere to strict and rigorous standards to anonymise such data before it is shared with a third party (including the Subscriber) with a view to ensuring that an individual End User cannot be personally identified.
13. General
13.1 Entire Agreement: This Agreement constitutes the whole agreement and understanding of the Parties and supersedes any previous arrangement, understanding or agreement between them relating to the subject matter of this agreement. Each Party acknowledges that, in entering into this Agreement, it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently) other than as expressly set out in this Agreement, provided always that nothing in this clause shall limit or exclude any liability for fraud.
13.2 No Waiver: The Parties agree that a failure by either Party to enforce the performance of any provision in this Agreement shall not constitute a waiver of the right to subsequently enforce that provision or any other provision of this Agreement. Such failure shall not be deemed to be a waiver of any preceding or subsequent breach and shall not constitute a continuing waiver.
13.3 Severance: If any provision of this Agreement (or part of a provision) is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
13.4 Variation: Unless otherwise expressly provided elsewhere in this Agreement, this Agreement may be only varied in writing by both of the Parties.
13.5 Notices: All notices or communication given under this Agreement shall be in writing (a reference to “writing” or “written” includes email). Notices shall be deemed to have been duly given:
13.5.1 when delivered, if delivered by courier or other messenger (including registered mail);
13.5.2 when sent, if transmitted by email (provided a postmaster email delivery failure notification has not been received);
13.5.3 on the fifth business day following mailing, if mailed by national ordinary mail, postage prepaid.
If deemed receipt as set out above would occur outside business hours in the place of receipt, it shall be deferred until business hours resume. In this clause, business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt. In each case notices should be addressed to the address or e-mail address given in this Agreement or as otherwise notified to the other Party in writing and in the case of MOAI, the email address for serving notices is legal@moaihealth.app.
13.6 Assignment: You are not entitled to assign or otherwise transfer this Agreement or any of your rights or obligations, nor are you permitted to sublicense the use (whether in whole or in part) of the Service without our prior written consent.
13.7 Force Majeure: Neither Party will be liable to the other for any delay in performing or failure to perform any of its obligations (other than a payment obligation) under this Agreement as a result of any cause outside its reasonable control. Subject to the affected Party promptly notifying the other Party in writing of the cause and the likely duration of the delay or non-performance and provided that the affected Party shall use reasonable endeavours to limit the effect of such event on such other Party, such delay or failure, to the extent affected by the cause will not constitute a breach of the Agreement.
13.8 Rights & Remedies: Except as otherwise expressly provided in this Agreement, all rights contained in this Agreement and all remedies available to either Party for breach of this Agreement are cumulative and may be exercised separately or concurrently. The exercise of any one right or remedy shall not be deemed an election of such right or remedy to the exclusion of other rights and remedies. No single or partial exercise of such right or remedy will prevent or restrict the further exercise of that or any other right or remedy.
13.9 Contracts (Rights of Third Parties) Act 1999: Except as otherwise expressly provided in this Agreement, a person who is not a Party to this Agreement or a permitted assignee has no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Agreement but this does not affect any right or remedy of a third party which exists, or is available, apart from that Act.
13.10 Governing Law and Jurisdiction: This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales and the Parties irrevocably submit to the exclusive jurisdiction of the English courts in respect thereof.