PeakPath - Terms of Service

PeakPath Terms of Service

1 Services

1.1 General

1.1.1 PeakPath provides a service offering that combines tech-enabled coaching with biometric data intended to help employees, leaders and organizations turn statistical insights into actions to improve and sustain high performance among employees. PeakPath's service offering consists of the following elements:

a license for the Customer and its Members to use PeakPath's digital app that supports the Member in interpreting digital wearable data, creating habits and communicating with their coach (the "App");
a right for the Customer and its employees to use the digital wearable devices that collect biometric data ("Wearables");
and a right for employees to receive one-to-one coaching sessions with Coaches from PeakPath ("Coaching Sessions"),

where the elements set out in items (a)-(c) above are jointly referred to as the " Services ".

1.1.2 The Services are provided to such a number of activated Members as are set out in a Service Agreement (the “Agreement”) with the customer. The Customer may not exceed said limit. However, the Customer may at any time deactivate a Member and replace the deactivated Member with a replacing Member. Reference is made to Sections 1.3.1-1.3.3.

1.1.3 Nothing in the Agreement shall be interpreted as that PeakPath has any exclusive right to provide the services or products covered by the Agreement to the Customer.PeakPath may engage subcontractors for the performance of the Services and other obligations under the Agreement. PeakPath will be responsible for the performance of its personnel (including employees and contractors) and their compliance with the Agreement.

1.2 App

1.2.1 The App constitutes the Customer's and each Member's main interface for the Services and enables each Member to, among other things, review data collected by the Wearables. Only Members are able to access the App and the Customer will not make the App available to anyone else.

1.2.2 PeakPath reserves the right to, from time to time, conduct maintenance work, changes and upgrading of the App and the Customer acknowledges and accepts that such work may temporarily disrupt or disturb the access to the App. PeakPath undertakes to perform such work and upgrades at points in time when as few Members as possible are using the App, such as during night time or otherwise outside normal business hours unless any maintenance work or upgrade is immediately required.

1.2.3 The Customer acknowledges and agrees that complex software is never wholly free from defects, errors and bugs or security vulnerabilities and PeakPath gives no warranty or representation that the App, including its functions, will be wholly free from defects, errors and bugs. Except as otherwise expressly set out in the Agreement, PeakPath shall not be liable for any damage or loss incurred by the Customer or other person as a result of any disruptions or disturbances affecting the availability or functionality of the App or from any defects, errors or bugs. Without limiting the generality of the foregoing, the Customer understands that the availability of the App is based on a connection to the Internet as well as communication over operator networks, connection disruptions or delays will not result in any liability whatsoever for PeakPath. If PeakPath is the cause of a prolonged inability (>48 hours) for the group of Members being able to use the App, then the Customer and their Members will get the equivalent extra number of days of App access for free after the termination of the agreement.

1.2.4 The Customer undertakes to take, and shall ensure that its Members undertake, all commercially reasonable actions to prevent unauthorised use of the App and, if such unauthorised use occurs, promptly inform PeakPath thereof and immediately stop, or take reasonable action in order to stop, any such use.

1.2.5 Without the written consent of PeakPath, or to the extent permitted under mandatory law, the Customer may not, and shall cause its Member not to, directly or indirectly provide any third party that is not an intended Member with access to the App.

1.2.6 The Customer undertakes, and shall cause its Members to undertake, to store log-in details to the App in a secure manner that, to the extent commercially reasonable, seeks to avoid any unauthorised use.

1.3 Wearables

1.3.1 Unless otherwise agreed, all Wearables will remain PeakPath's property and nothing in the Agreement will be construed as any transfer of ownership to the Wearables from PeakPath's to the Customer

1.3.2 Unless otherwise agreed, PeakPath will supply a number of Wearables that corresponds to the number of activated Members purchased by the Customer as set out in the Agreement. When receiving an invitation to use the Services, PeakPath will supply each Member with a Wearable. Each Wearable so supplied will be dedicated to the relevant Member that receives the Services.

1.3.3 Unless otherwise agreed, when deactivating a Member, PeakPath is entitled to retrieve the Wearable that the relevant Member has used, and the Customer will provide reasonable assistance in this regard. Further, where a deactivated Member is to be replaced by another Member, PeakPath will be entitled to access the Wearable that the deactivated Member has used. When retrieving a Wearable, or when transferring a Wearable from one Member to another, PeakPath will ensure, or instruct the relevant Member to ensure, that all Service Data that is stored on the Wearable is permanently deleted from the Wearable and that the Wearable is reset to its factory settings.

1.4 Coaching Sessions

1.4.1 During a Coaching Session, a Member will be given the opportunity to the data collected from the Wearables and questionnaires. For this purpose, PeakPath will provide each Member with a Coach

1.4.2 Coaches may be employees of PeakPath or consultants engaged by PeakPath. All Coaches PeakPath provides will have at least an Associate Certified Coach certificate from the International Coaching Federation (ICF) or equivalent. PeakPath will ensure that each Coach maintains the ethics and standards of the International Coaching Federation.

1.4.3 Each Member is solely responsible for creating and implementing his/her own physical, mental and emotional well-being, decisions, choices, actions and results arising out of or resulting from each Coaching Session. As such, the Customer agrees that neither PeakPath nor any Coach will be liable or responsible for any actions or inaction taken or not taken by a Member following a Coaching Session. The Coaching Sessions are not therapy and does not substitute for therapy if needed, and does not prevent, cure, or treat any mental disorder or medical disease.

1.4.4 The Customer acknowledges, and will ensure that each Member acknowledges, that the Coaching Sessions do not involve the diagnosis or treatment of mental disorders and that the Coaching Sessions is not to be used as a substitute for counselling, psychotherapy, psychoanalysis, mental health care, substance abuse treatment, or other professional advice by legal, medical or other qualified professionals and that it is the Customer’s or each Member's responsibility to seek such independent professional guidance as needed.

1.4.5 Results of the Services vary from person to person. For this reason, performance, progress and success are reliant on theCustomer and each Member meeting their own commitments. The Coach cannot and does not guarantee any particular or any results and each Member will be solely responsible for his or her improvements.

2 Customer's obligation

2.1 Responsibilities

In order for PeakPath to be able to perform its obligations under the Agreement, the Customer is responsible for the following:

taking overall responsibility for internal marketing and ensuring that a sufficient number of Members sign up to the Services;
setting up a slot for a meeting with all its Members for launching the Services;
setting up a slot for management team meeting or similar senior level steering groups on a quarterly basis to discuss insights from the Services;
updating PeakPath about any other performance and health solutions or initiatives existing in the organization so that PeakPath can help Members navigate to these solutions and support/reinforce the initiatives;
not interfering with or disrupting the integrity or performance of the Services or any third party technology contained therein;
not permitting direct or indirect access to or use the Services in a way that circumvents the Member limit of the Services or use the Services to access or use any of PeakPath's intellectual property except as permitted under the Agreement;
not selling, reselling, licensing, sublicensing, distributing, redistributing, renting, or leasing the Services except as integrated with its own offerings that provide additional functionality to its Members;
except as permitted by applicable laws or governmental regulations, not reverse engineering, decompiling, translating, disassembling or otherwise attempting to extract any or all of the source code of the Services; and
not using the Services to develop a competitive product or service.

2.2 Customer's use of the Services

When using the Services, the Customer is responsible for the following:

specifying the Members that are authorized to use the Services by inviting them to the Service. If a Member is no longer authorized to use the Services, the Customer shall immediately remove their access
following any written instructions from time to time provided by PeakPath for use of the Services

2.3 Service Notices

If PeakPath becomes aware that the Customer has violated the Customer’s obligations under this Section 2 (Customer’s Obligations), PeakPath will notify the Customer by email (the " Service Notice ") and request the Customer to take reasonably appropriate action. If the Customer fails to comply with a Service Notice within the time period set forth in the Service Notice, PeakPath may block the Customer’s access to the Services until the requested action is taken. If the Customer fails to take the required action within ten (10) working days or fails to comply with the Customer’s obligations under this Section 2 (Customer’s Obligations) on two or more occasions during any rolling twelve (12) month period, PeakPath may terminate the Agreement immediately for cause. PeakPath also responds to notices of alleged copyright infringement and may block access to the applicable Service or terminate accounts of repeat infringers. PeakPath shall not be liable to the Customer or any third party for any termination of the Customer’s account or access to the Services.

3 Term and termination

3.1 Term

3.1.1 The term of the Agreement is set out in a Service Agreement with the customers. Any termination shall be made in writing.

3.1.2 However, and for the avoidance of doubt, any individual Member may select to discontinue its participation in and its receipt of the Services through the Customer at any point in time, in which case PeakPath will deactivate the relevant Member. Reference is made to Sections 1.3.1-1.3.3.

3.2 Termination for Cause

In addition to PeakPath's right to terminate the entire Agreement under Section 2.3 (Service Notices), the Customer or PeakPath may terminate the entire Agreement for cause (a) upon thirty (30) days written notice to the other of a material breach if the breach remains uncured at the expiration of the notice period, (b) if the other Party (i) becomes the subject of a proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors to the extent permitted by applicable laws or governmental regulations, (ii) goes out of business, or (iii) ceases its operations; or (c) for regulatory or professional standard concerns if its continuance could result in the Customer’s non-compliance with any law, rule, regulation, regulatory guidance, independence rule, professional standard, or self-regulatory rule or policy.

3.3 Consequences of a Termination

3.3.1 If the Agreement terminates, PeakPath is entitled to discontinue the Customer's and its Members' access to the App at the effective date of the termination. Further, following the effective date of termination, the Members will no longer be entitled to Coaching Sessions.

3.3.2 Further, if wearables have been rented by the Customer, PeakPath will collect all the Wearables from the Customer, and the Customer will provide reasonable assistance to facilitate this collection.

3.4 Survival

Any term or condition that by its nature is clearly intended to survive the expiration or termination of the Agreement, shall survive any expiration or termination of the Agreement, including Section 4.1 (Fees), Section 4.5 (Refund or Payment upon Termination), Section 5 (Confidentiality), Section 6 (Intellectual Property Rights), Section 8 (Limitations of Liability), and Section 10 (Indemnification).

4 Confidentiality

4.1 Confidential Information

“ Confidential Information ” means all information disclosed by a Party (" Disclosing Party ") to the other Party (" Receiving Party "), whether orally or in writing, that is designated as confidential or, given the nature of the information and the circumstances of disclosure, should be understood to be confidential. The Confidential Information includes Contact Data, Onboarding Data and Service Data and any terms and conditions specified in the Service Agreement between the Customer and PeaktPath. Confidential Information does not include information that: (a) is at the time of disclosure, or later becomes, generally known to the public through no fault of Receiving Party; (b) was known to the Receiving Party with no obligation of confidentiality prior to disclosure by Disclosing Party, as proven by records of Receiving Party; (c) is disclosed to Receiving Party by a third party who did not directly or indirectly obtain the information subject to any confidentiality obligation, or (d) is at any time independently developed by Receiving Party without the use of Disclosing Party’s Confidential Information as proven by records of Receiving Party.

4.2 Protection of Confidential Information

Except as provided in Section 5.3 (Compelled Disclosure) Receiving Party shall not disclose or otherwise make available any Confidential Information of Disclosing Party to anyone except those of its Members/employees, directors, attorneys, agents, sub-contractors, and consultants who: (a) need to know the Confidential Information in connection with the purpose of the Agreement and (b) who have previously agreed to be bound by confidentiality obligations no less stringent than those in the Agreement. Each Party shall (x) safeguard all Confidential Information of the other Party with at least the same degree of care (but no less than reasonable care) as it uses to safeguard its own confidential information and (y) not use any Confidential Information of the other Party for any purpose outside the scope of the Agreement.

4.3 Compelled Disclosure

If Receiving Party is compelled by law to disclose Confidential Information of Disclosing Party, then to the extent legally permitted, Receiving Party shall provide Disclosing Party with prior notice of the compelled disclosure and reasonable assistance, at Disclosing Party’s cost, if Disclosing Party wishes to contest the compelled disclosure. Any compelled disclosure shall be limited to the extent required and shall be subject to confidentiality protections to the extent practicable. If Receiving Party is compelled by law to disclose Disclosing Party’s Confidential Information as part of a civil proceeding to which Disclosing Party is a party, and Disclosing Party is not contesting the disclosure, Disclosing Party will reimburse Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.

5 Intellectual Property Rights

5.1 Intellectual Property Rights Ownership

The Services are the proprietary information of PeakPath. Subject to the limited rights expressly granted in the Agreement, PeakPath and PeakPath's licensors reserve all rights, title, and interest in and to the Services including all related intellectual property rights. No rights are granted to the Customer except as expressly set forth in the Agreement.The Customer may not copy, change or in any other way handle software belonging to the Services, and neither transfer nor make available the rights to such software or material to a third party unless agreed in writing with PeakPath.

5.2 License to Data

PeakPath is responsible for obtaining from each Member a non-exclusive, revocable, and limited license for the term of the Agreement to store, copy, transmit, and display Contact Data, Onboarding Data and Service Data as necessary in order for PeakPath to provide the Services in accordance with the Agreement.

PeakPath grants the Customer a limited non-exclusive, non-transferable, non-sublicensable license to use the App solely in connection with the subscribed Services in accordance with the Agreement. PeakPath shall retain all ownership rights, title, and interest to the App, including but not limited to pre-existing know-how, ideas, techniques, concepts, trademarks, and patents.

5.3 Feedback

The Customer grants to PeakPath a worldwide, perpetual, irrevocable, royalty-free permission to use and incorporate into the Services any suggestion, enhancement request, recommendation, correction, or other feedback provided by the Customer or its Members.

5.4 Other Content

The Services may contain links to websites or resources of others (“ External Links ”). PeakPath does not endorse and are not responsible or liable for the accuracy, availability, content, products, services or anything else as it pertains to External Links. The Member is solely responsible for the use of any such websites or resources.

6 Anti-Corruption

The Customer has not received or been offered any bribe, kickback, illegal or improper payment, gift, or thing of value from any PeakPath personnel or agents in connection with the Agreement, other than reasonable gifts and entertainment provided in the ordinary course of business.

7 Limitations of Liability

7.1 In no event will a Party be liable for any lost profits, lost opportunities, or indirect, special, incidental, or consequential damages or any other indirect damage or loss.

7.2 In no event will either Party’s aggregate liability arising out of or related to the Agreement (regardless of the number of individual incidents giving rise to liability) exceed the total amount actually paid by the Customer hereunder for the Services giving rise to the liability in the twelve (12) months preceding the first incident out of which the liability arose.

7.3 The above limitations will not limit the Customer’s payment obligations under Section 4 (Fees and Payment), PeakPath liability under Section 10 (Indemnification) and Section 5 (Confidentiality), or in the event of a Party’s gross negligence or wilful misconduct.

7.4 Any claims for damages shall be submitted no later than six (6) months from the time the damage occurred, however, never later than three (3) months from the expiration or termination of the Agreement.

8 Warranties

8.1 App Warranty

8.1.1 PeakPath's warrants that during the term of the Agreement that the App will perform materially in accordance with the Agreement

8.1.2 The Customer's exclusive remedies for a breach of a warranty (App Warranty) shall be to exercise the express rights described in Sections 3.2 (Termination for Cause) and 4.5 (Refund or Payment upon Termination).

8.2 Coaching Sessions

PeakPath warrants that the Coaching Sessions will be performed in a professional and workmanlike manner. The Coaching Sessions will be performed using suitable, qualified, skilled and experienced Coaches.

8.3 Disclaimers

Except as expressly provided in this Section 9, neither Party makes any warranty or guarantee of any kind, whether express, implied, statutory, or otherwise, and each Party specifically disclaims all warranties, whether implied, express, or statutory, including any implied warranty of title, merchantability, fitness for a particular purpose, or non-infringement, to the maximum extent permitted by applicable laws or governmental regulations. PeakPath disclaims any warranty that the operation of the Services will be error-free or uninterrupted.

9 Processing of Personal Data

9.1 The terms "data subjects", "personal data", "processing", "controller" as used in this Section 11 (Processing of Personal Data) will have the meaning generally ascribed to such terms in the General Data Protection Regulation (Regulation (EU) 2016/679) (the "GDPR").

9.2 The Parties acknowledge and understand that they when performing their obligations under this Agreement will be processing certain personal data, including:

contact information, such as names, e-mail address and phone numbers, to certain Members appointed by the Customer and certain of employees as appointed by PeakPath as necessary to enable said Members/employees to manage the Parties' relationship under the Agreement ("Contact Data");
contact information, such as names, e-mail address and phone numbers, to each Member as necessary to invite and onboard each Member to the Services ("Onboarding Data");
and statistics, information and insights, such as stress data, sleep data, meeting data, transcriptions and documentation created as part of the Coaching Sessions collected by PeakPath when performing the Services, including as may be collected by the Wearables, gathered through the App or otherwise created when holding Coaching Sessions ("Service Data").
9.3 The Parties consider themselves as acting as independent controllers of the personal data for the Contact Data, Onboarding Data and Service Data. For this purpose, each Party will be responsible for its compliance with the GDPR in respect of its processing of the Contact Data, Onboarding Data and Service Data, respectively. The foregoing will include that each Party will be individually responsible for ensuring that it has a legal ground to its processing, that data subjects are appropriately informed about the processing and for the implementation of adequate technical and organizational security measures.
9.4 Without limiting the generality of the foregoing, each Party undertakes as follows:
the Customer will ensure that it has legal grounds necessary to provide PeakPath with the Contact Data and Onboarding Data;
PeakPath will ensure that if has the legal grounds necessary to receive the Contact Data and Onboarding Data from the Customer;
PeakPath will ensure that it has the legal grounds necessary to process the Service Data. Further, PeakPath will hold the Service Data in strict confidence, and will not share Service Data relating to any specific Member with anyone other than the relevant Member and those individuals within PeakPath's organization, including Coaches, that need to have access to the Service Data in order to perform the Services. However, PeakPath may share certain Service Data with the Customer in an aggregate and anonymized format (i.e. such that no individual Member can be identified);
PeakPath will maintain administrative, physical, and technical safeguards for the security and integrity of the Services consistent with industry-standard practices. PeakPath will store, process, transmit and disclose electronic data and configurations submitted to the Services at the direction of or on behalf of Customer only according to the Agreement;
andPeakPath will use Contact Data, Onboarding Data and Service Data only for the purpose of supplying and improving the Services and not for any other purpose (such as for the purpose of sending marketing messages or "spam" to any Member).
9.5 Notwithstanding anything to the contrary herein, PeakPath shall always be free to make use of any general know-how acquired, general principles learned, and general experience gained in connection with providing the Services.

10 Assignment

Neither Party may assign any of its rights or obligations under the Agreement, whether by operation of law or otherwise, without the other Party’s prior written consent (not to be unreasonably withheld) provided, however, either Party may assign the Agreement in its entirety, without the other Party’s consent (a) to any of its affiliates or (b) in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets.

11 Notices

11.1 Except as otherwise specified in the Agreement, all notices, permissions and approvals shall be in writing and shall be deemed to have been given upon (a) personal delivery; (b) the second business day after mailing; or (c) the day of sending by email.

11.2 Notices of termination of the Agreement shall be addressed to PeakPath's account manager. All other notices under the Agreement shall be provided to the Parties’ respective contact person as specified in the Agreement.

12 Force Majeure

12.1 Except for payment obligations under a Service Agreement between the Customer and PeakPath, neither Party will be liable for failure to perform or inadequate performance under the Agreement to the extent caused by a condition that was beyond the Party’s reasonable control and which substantially affects the Party’s or its sub-suppliers’ or sub-contractors’ performance, including, for example, an act of God, natural disaster, epidemic or pandemic, act of war or terrorism, riot or civil arrest, labor conditions such as boycott, strike, lock-out, governmental action, disruption of telecommunications, failure or delay of internet services providers or internet disturbance, disruption of power or other essential services.

12.2 If the performance of the Services in substantial respects is prevented for a period exceeding two (2) months due to a circumstance stated herein, either Party shall have the right to terminate the Agreement in writing, without incurring any liability for compensation.

13 Governing Law and Dispute Resolution

This Agreement shall be governed by the substantive law of Sweden.

Any dispute, controversy or claim arising out of or in connection with this Agreement, or the breach, termination or invalidity thereof shall be subject to the exclusive jurisdiction of the Swedish Courts.