WELLEST INC
Terms of Service & Privacy Policy
(Last Updated: February 25, 2019)
1. Introduction
Welcome to the Wellest.
The services offered on our Wellest mobile application (the “App”) are owned and operated by Wellest, Inc. (“Wellest”, “we”, “us”, “our”, or the “Company”). Please read these Terms of Service and Privacy Policy (this “Agreement”) carefully, as you are agreeing to be bound by these terms by using our Service.
This Agreement applies to all Users of the Service. If you do not agree with any part of this Agreement, you must not use the Service. Your continued use of the Service will constitute your acceptance of this Agreement. Any new features or tools which are added to the current Service shall also be subject to this Agreement. You can review the most recent version of this Agreement at any time here. We reserve the right to update, change, or replace any part of this Agreement by posting updates and/or changes. It is your responsibility to check the Service periodically for changes. Your continued use of the Service following the posting of any changes constitutes acceptance of those changes.
PLEASE NOTE: BY USING THE APP, YOU WILL BE PROVIDING US WITH CERTAIN INFORMATION RELEVANT TO YOUR PERSONAL HEALTH AND FITNESS INCLUDING, WITHOUT LIMITATION, BIOLOGICAL SEX, RACIAL PHENOTYPE, HEIGHT, WEIGHT, PHYSIOLOGICAL MEASUREMENTS, AND CERTAIN MEDICAL HISTORY. OUR USE AND SHARING OF SUCH INFORMATION IS DISCLOSED IN AND GOVERNED BY THIS AGREEMENT (SEE THE PRIVACY SECTION BELOW) WHICH YOU ACKNOWLEDGE YOU HAVE READ AND WITH WHICH YOU AGREE AS PART OF USING THE APP.
PLEASE NOTE FURTHER: THIS AGREEMENT CONTAINS A MANDATORY ARBITRATION CLAUSE. BY BINDING YOURSELF TO THIS AGREEMENT AND USING OUR SERVICES HEREUNDER, YOU EXPRESSLY WAIVE YOUR RIGHT TO BRING CLAIMS OUTSIDE OF ARBITRATION.
General Terms
2. Definitions
Throughout this Agreement, we may use certain words or phrases, and it is important that you understand the meaning of them. The list is not all-encompassing, and no definition should be considered binding to the point that it renders this Agreement nonsensical:
“Agreement” means these Terms of Service.
“Wellest”, “we”, “us”, “our”, or the “Company” refers to our company, App, Service, or a combination of all or some of the preceding definitions, depending on the context of the word.
“Registered User” means a User who has created a User Account, as described in Section 7.
“Service” refers to our App, and any other products, websites, applications, and services offered by us.
“User” refers but is not limited to all users of the Service.
“User Content” refers to any content, including text, communications, images, photos, links, and other material submitted by a User to any section of the Service where Users are allowed to submit content.
“You” refers to you, the person who is entering into this Agreement with Wellest.
3. Eligibility
In order to use our Service, you must meet a number of conditions, including but not limited to:
• You must not be in violation of any embargoes, export controls, or other laws of the United States or other countries having jurisdiction over this Agreement, us, and you. For example, if the Office of Foreign Assets Control prohibits conducting financial transactions with nationals, residents, or banks of your country, you must not use our Service.
• You must be over the age of eighteen (18) or at least thirteen (13) having the written consent of your parent or guardian.
• You must not sign up or use the Services on behalf of a natural person or entity other than (i) yourself, (ii) a person to whom you are a legal guardian, and/or (iii) a person on whose behalf you are legally authorized to act (e.g., a spouse or family member under certain medical protocols).
• You must provide us with personal information, payment information, and other information that we deem necessary to provide you with our Service.
4. Rules of Use
All of the content in the Service is made available only for your personal, lawful, non-commercial use. Use of the Service by a competitor company or other non-consumer third party is prohibited.
You may not use our Service for any unlawful purpose and agree that it is solely your responsibility to ensure that the use of the Service is lawful in the jurisdiction in which you are located. In addition to other prohibitions as set forth in the Agreement, you must not:
• Use the Service to solicit others to perform or participate in any unlawful acts.
• Use the Service to violate any international, federal, provincial, or state regulations, rules, laws, or local ordinances.
• Use the Service to infringe upon or violate our intellectual property rights or the intellectual property rights of others.
• Use the Service to harass, abuse, insult, harm, defame, slander, disparage, intimidate, bully, or discriminate, or threaten any of the above, based on gender, sexual orientation, religion, ethnicity, race, age, national origin, or disability; or to use hateful speech against any other person or User for any reason.
• Use the Service to submit false or misleading information.
• Use the Service to collect, track, and/or publish the personal information of others.
• Use the Service to spam, phish, pharm, pretext, spider, crawl, or scrape.
• Use the Service to interfere with or circumvent the security features of the Service or any related website, other websites, or the Internet.
We reserve the right to terminate your use of the Service or any related website for violating any of the prohibited uses.
We reserve the right to limit functionality of your account (temporarily or permanently) due to technical, security, legal, or other reasons, including, but not limited to:
• ability to log into your account;
• ability to edit existing content.
5. Acknowledgment
You acknowledge and agree that the Service is intended solely for tracking information, educational tips, and progress related to your wellness and fitness goals. While we do provide general wellness and educational tips, the Service is not a medical service provider and does not provide any medical advice. Please consult with your physician prior to engaging in any sort of medical therapy, purchasing and/or using any medication or medical products.
6. Modifications to the Services
We reserve the right at any time to modify or discontinue the Service (or any part or content thereof) in its entirety as well as with regard to any individual User without notice at any time. We reserve the right to reclaim and repurpose any username or URL on the Service.
We shall not be liable to you or to any third-party for any modification, suspension, or discontinuance of the Service in accordance with this Section.
7. Account Creation
In order to access certain features of the Service, you must become a Registered User by creating an account (“User Account”). You agree to provide accurate, current, and complete information during the registration process and to update such information to keep it accurate, current, and complete.
You should not reveal your login credentials to any other person. We will never ask you to reveal your credentials. If you misplace your credentials, you can request to have your access to the Service restored. You agree to indemnify Wellest and its employees, contractors, officers, directors, shareholders, agents, representatives, vendors, and content providers harmless for any improper or illegal use of any of your User Account. This includes illegal or improper use by someone to whom you have given permission to use your User Account or whom you have negligently allowed to access your User Account.
You may only possess one (1) User Account. Wellest reserves the right to suspend or terminate your User Account and your access to the Service if you create more than one (1) User Account, if any information provided during the registration process or thereafter proves to be inaccurate, fraudulent, not current, incomplete, or otherwise in violation of this Agreement, or if any activity that occurs with respect to your User Account violates this Agreement.
8. User Content
You are solely responsible for any User Content submitted by you. You understand that unless expressly provided otherwise, all your communications via any component of the Service are public, and you have no expectation of privacy regarding such communications. With respect to private communications, we shall only share such communications upon your prior consent unless we are required to share such communication by operation of the law (e.g., subpoena, investigation, court order, etc…). You are responsible for complying with all laws applicable to your User Content. You agree not to submit to the Service, or transmit to other users of the Service, any defamatory, inaccurate, abusive, obscene, profane, offensive, sexually oriented, threatening, harassing, racially offensive, or illegal material, or any material that infringes or violates another party's rights (including, but not limited to, intellectual property rights, or rights of privacy or publicity). You will not provide inaccurate, misleading or false information to us or to any other User of the Service. If information provided to us, or another user of the Service, subsequently becomes inaccurate, misleading or false, you will promptly notify us of such change.
We may, in our sole discretion and without notice, review and delete any User Content, but are under no obligation to do so. We have no responsibility for the conduct of any user in the Service, including any User Content submitted in the Service. We assume no responsibility for monitoring the Service for inappropriate content or conduct. Your use of the Service is at your own risk.
You represent and warrant that you have all necessary rights in and to any User Content that you submit within the Service, that such User Content does not infringe any proprietary or other rights of third parties, that all such content is accurate and will not cause injury to any person or entity, and that you will indemnify Wellest and its employees, contractors, officers, directors, shareholders, agents, representatives, vendors, and content providers for all claims resulting from your submitted and posted content. If any such materials incorporate the name, voice, likeness and/or image of any individual, you represent and warrant that you have the right to grant Wellest permission to use any such name, voice, likeness and/or image of such individual appearing in the materials you post throughout the world in perpetuity.
You hereby grant us the sole and exclusive, irrevocable, sub-licensable, transferable, worldwide, royalty-free license to reproduce, modify, create derivative works from, publish, distribute, sell, transfer, transmit, publicly display, and use any User Content and to incorporate the same in other works in any form, media, or technology now known or later developed.
You further hereby grant to us the unconditional, irrevocable right to use and exploit your name, likeness and any other information or material included in any User Content and in connection with any User Content or your User Account, without any obligation to you. Except as prohibited by law, you waive any rights of attribution and/or any moral rights you may have in your User Content, regardless of whether your User Content is altered or changed in any manner.
You acknowledge and agree that all User Content whether publicly posted or privately transmitted to the Service is at your sole responsibility and risk. We disclaim any responsibility for the backup and/or retention of any User Content transmitted to the Service.
9. Your Interactions with Other Users
You are solely responsible for your interactions with other Users. You understand that we do not conduct criminal background checks or other screenings of our Users. We also do not verify the statements of our Users and make no representations or warranties as to the conduct of Users or their compatibility with any current or future User. We reserve the right to conduct any criminal background check or other screenings, at any time and using available public records.
We are not responsible for the conduct of any User. In no event shall we, our agents, affiliates, or partners be liable (directly or indirectly) for any losses or damages, whatsoever, whether direct, indirect, general, special, compensatory, consequential, and/or incidental, arising out of or relating to conduct of you or anyone else in connection with the use of the Service including, without limitation, death, bodily injury, emotional distress, and/or any other damages resulting from communications or meetings with other Users or persons you meet through the Service.
You agree to take all necessary precautions in all interactions with other Users in both online and in person settings. You understand that we make no guarantees, either express or implied, regarding your compatibility with Users or other persons you encounter while in use of the Service or as a result of using the Service.
You may not use any portion of the Service to collect information, including login credentials, about other users, and use of such information to send unsolicited communications or for any other purpose is strictly prohibited. You may not advertise any goods or services on any component of the Service, or otherwise exploit your participation on or through the Service for any commercial purpose.
10. Your Personal Information
Your submission of personal information through the Service is governed by this Agreement.
11. In Service Purchases
Certain features of the Service may be subject to a fee. These features may include the possibility to purchase certain products from various suppliers directly via the Service. Applicable fees are displayed in the Service in connection with the respective feature of the Service. We reserve the right to change the pricing for the goods and services offered through the Service at any time.
You are responsible for all charges and usage on your User Account or using your user credentials and all purchases made by you or anyone that uses your User Account or user credentials, including applicable taxes. You may pay using the methods available in the Service from time to time, and you agree to the terms and conditions applicable to each payment method you choose, including any additional payment processing fees which may be applicable. We are not responsible or liable for any issues related to the services provided by the payment provider to you in connection with the purchase.
You (i) represent that you are authorized to use the payment method you use and that any payment information you provide is true and accurate; and (ii) authorize us and/or the applicable payment provider to charge you for the Service using your payment method. You must promptly update all billing information to keep it current, complete, and accurate (such as a change in billing address, credit card number, or credit card expiration date), and you must promptly notify the us and the applicable payment provider if your credit card is canceled, lost or stolen or if the security of your payment method has otherwise become compromised.
You are solely responsible for any costs you incur to access the Service through any Internet, wireless or other communication service, such as any fees for web browsing, messaging, and data usage on an Internet provider’s or wireless carrier’s network. Check with your carrier to determine the fees that apply.
12. License Restrictions
You agree that by using our Service, you are receiving a license to access, download, and use the Service in compliance with this Agreement, applicable laws, and any additional terms located within our Service which are hereby incorporated into this Agreement by reference. This license may be used by you only, and you are solely responsible and liable, and agree to indemnify us to the fullest extent, including attorneys’ fees and court costs, for any legal action or dispute that arises from the use of your license by someone other than you. You must not attempt to reverse engineer, redistribute, resell, or otherwise copy or manipulate our Service.
We may revoke our license to you at any time for any reason without notice or explanation, and we shall not, in any event, be liable to you for any losses suffered as a result of any unanticipated cancellation of our Service. We will generally attempt to notify you prior to cancelling your access to our Service unless you have breached this Agreement or any applicable law, though we are not obligated to do so.
13. Usage Information
You acknowledge and agree that we may use, track, store, copy, distribute, broadcast, transmit, publicly display and perform, reproduce, digitally perform, modify, create derivative works of, and otherwise use and commercially exploit any feedback or other information that you provide to us via the Services in accordance with the privacy policy hereunder. If you are deemed to have retained, under applicable law, any right, title or interest in or to any portion of such information or materials, you agree to and hereby do assign solely and exclusively to us all of your right, title and interest in and to such information or materials, without additional consideration, under applicable patent, copyright, trade secret, trademark and other similar laws or rights, in perpetuity. If such assignment is ineffective under applicable law, you hereby grant us the sole and exclusive, irrevocable, sub-licensable, transferable, worldwide, royalty-free license to reproduce, modify, create derivative works from, publish, distribute, sell, transfer, transmit, publicly display, use, and practice such information or materials, and to incorporate the same in other works in any form, media, or technology now known or later developed. To the extent permitted by applicable laws, you hereby waive any moral rights or rights of publicity or privacy you may have in such information or materials.
14. Errors and Inaccuracies
We make every effort to provide complete, accurate, and up-to-date information on our Service. Unfortunately, it is not possible to ensure that any service is completely free of human or technological errors. Occasionally, our Services may contain typographical mistakes, inaccuracies, or omissions, some of which may relate to pricing and availability, and some information may not be complete or current. We reserve the right to correct any errors, inaccuracies, or omissions at any time and to change or update information at any time without prior notice.
We assume no obligation to update, amend, or clarify information in the Service or any Third-Party Service (as defined below), including without limitation, pricing information, except as required by law. No specified update or refresh date applied in the Service or on any Third-Party Service, should be taken to indicate that all information in the Service or on any Third-Party Service has been modified or updated.
15. Third-Party Services
At times, the Service may allow you to connect to or communicate with other apps, websites, or services owned, operated, or controlled by third-parties, including those linked to by other Users (“Third-Party Services”). Links to Third-Party Services are offered strictly for informational and convenience purposes and should not be construed as referrals or endorsements by us of the Third-Party Services. The Third-Party Services are developed and maintained by the respective third parties and are governed by their own terms of service and privacy policies. You should read the privacy policies and terms of service agreements of all Third-Party Services. We are not responsible for the content of Third-Party Services, nor do we make any warranties or representations with regard to the content, accuracy, opinions, warranties, products or services, privacy or security, intellectual property compliance, or links of such Third-Party Services.
16. Server Downtime
Our Service may become unavailable from time to time due to security reasons, legal reasons, technical updates, or other reasons. You agree that we are not obligated to inform you of such downtime — even if we are aware that it may occur — or to provide a reason for it, and that you release us from all liability relating to the unavailability of our Service.
17. Our Copyright
We rely on the uniqueness of its Service and content to distinguish itself from third-party competitors. You agree not to copy, distribute, display, disseminate, or otherwise reproduce any of the information on the Service, including content licensed to us by third parties, without receiving our prior written permission.
18. Trademarks
Wellest and its various image marks (as found on the Service) are trademarks used by us to uniquely identify our Service and business. You agree not to use these phrases anywhere without our prior written consent. Additionally, you agree not to use our trade dress, or copy the look and feel of our Service or its design, without our prior written consent. You agree that this paragraph goes beyond the governing law on intellectual property law and includes prohibitions on any competition that violates the provisions of this paragraph, including starting your own service, whether or not it competes directly or indirectly with us or our Service.
19. Revocation of Consent
We may revoke our consent for your use of our intellectual property, or any other permission granted to you under this Agreement, at any time. You agree that if we so request, you must take immediate action to remove any usage of our intellectual property that you may have engaged in, even if it would cause a loss to you.
20. Copyright & Trademark Infringement
We take copyright infringement very seriously, and we have registered a Copyright Agent with the United States Copyright Office, which limits our liability under the Digital Millennium Copyright Act (DMCA). If you believe that your copyright has been infringed, please send us a message which contains:
• Your name.
• The name of the party whose copyright has been infringed, if different from your name.
• The name and description of the work that is being infringed.
• The location on our App of the infringing copy.
• A statement that you have a good faith belief that use of the copyrighted work described above is not authorized by the copyright owner (or by a third party who is legally entitled to do so on behalf of the copyright owner) and is not otherwise permitted by law.
• A statement that you swear, under penalty of perjury, that the information contained in this notification is accurate and that you are the copyright owner or have an exclusive right in law to bring infringement proceedings with respect to its use.
You must sign this notification electronically and send it to our Copyright Agent at legal@wellest.com.
Letters containing the foregoing may be mailed to:
Copyright Agent
Wellest Inc.
60 29th St
Suite 112
San Francisco, CA 94110
Although U.S. law does not provide for a similar procedure for trademark infringement, we recommend that you send us similar information to that above in regard to any allegation of trademark infringement, and we will address it as soon as practicable.
21. Communications Decency Act & Constitutional Protection
Similar to the DMCA provisions above, United States law include Section 230 of the Communications Decency Act and the First Amendment to the Constitution of the United States, create a defense for us for the actions of third parties in regard to any defamatory content posted on our Service. Although we are not liable for defamatory words posted on our Service by our Users even if given notice, we do prohibit defamation under this Agreement and we may, if we believe the situation warrants it, take action against the offending User. Please notify us at legal@wellest.com if any of our Users have posted anything that you believe is defamatory. Note that administrators and management should, ideally, be the first party you contact in response to any defamation by another User.
22. Representations & Warranties
WE MAKE NO REPRESENTATIONS OR WARRANTIES AS TO THE MERCHANTABILITY OF OUR SERVICE OR FITNESS FOR ANY PARTICULAR PURPOSE. YOU AGREE THAT YOU ARE RELEASING US FROM ANY LIABILITY THAT WE MAY OTHERWISE HAVE TO YOU IN RELATION TO OR ARISING FROM THIS AGREEMENT OR OUR SERVICES, FOR REASONS INCLUDING, BUT NOT LIMITED TO, FAILURE OF OUR SERVICE, NEGLIGENCE, OR ANY OTHER TORT. TO THE EXTENT THAT APPLICABLE LAW RESTRICTS THIS RELEASE OF LIABILITY, YOU AGREE THAT WE ARE ONLY LIABLE TO YOU FOR THE MINIMUM AMOUNT OF DAMAGES THAT THE LAW RESTRICTS OUR LIABILITY TO, IF SUCH A MINIMUM EXISTS.
YOU AGREE THAT WE ARE NOT RESPONSIBLE IN ANY WAY FOR DAMAGES CAUSED BY THIRD PARTIES WHO MAY USE OUR SERVICES, INCLUDING BUT NOT LIMITED TO PEOPLE WHO COMMIT INTELLECTUAL PROPERTY INFRINGEMENT, DEFAMATION, TORTIOUS INTERFERENCE WITH ECONOMIC RELATIONS, OR ANY OTHER ACTIONABLE CONDUCT TOWARDS YOU.
WE ARE NOT RESPONSIBLE FOR ANY ACTIONS BY AN ADMINISTRATOR, MANAGER, EMPLOYEE, OR OTHER USER WHICH MAY CAUSE HARM TO YOU, EVEN IF WE BECOME AWARE IN ADVANCE THAT SUCH ACTIONS MAY OR WILL OCCUR AND DO NOT NOTIFY YOU.
WE ARE NOT RESPONSIBLE FOR ANY ERRORS IN INFORMATION PROVIDED THROUGH OUR SERVICE OR ANY OTHER DAMAGE THAT MAY ARISE FROM SUCH CONTENT.
WE ARE NOT LIABLE FOR ANY FAILURE OF THE SERVICES PROVIDED BY OUR SERVICE OR A THIRD PARTY, INCLUDING ANY FAILURES OR DISRUPTIONS WHICH PREVENT ACCESS TO OUR SERVICE TEMPORARILY OR PERMANENTLY.
THE PROVISION OF OUR SERVICE TO YOU IS CONTINGENT ON YOUR AGREEMENT WITH THIS AND ALL OTHER SECTIONS OF THIS AGREEMENT. NOTHING IN THE PROVISIONS OF THIS “REPRESENTATIONS & WARRANTIES” SECTION SHALL BE CONSTRUED TO LIMIT THE GENERALITY OF THE FIRST PARAGRAPH OF THIS SECTION.
For Jurisdictions that Do Not Allow Us to Limit Our Liability
Notwithstanding any provision of these Terms, if your jurisdiction has provisions specific to waiver or liability that conflict with the above then our liability is limited to the smallest extent possible by law. Specifically, in those jurisdictions not allowed, we do not disclaim liability for: (a) death or personal injury caused by its negligence or that of any of its officers, employees or agents; or (b) fraudulent misrepresentation; or (c) any liability which it is not lawful to exclude either now or in the future.
IF YOU ARE A RESIDENT OF A JURISDICTION THAT REQUIRES A SPECIFIC STATEMENT REGARDING RELEASE THEN THE FOLLOWING APPLIES. FOR EXAMPLE, CALIFORNIA RESIDENTS MUST, AS A CONDITION OF THIS AGREEMENT, WAIVE THE APPLICABILITY OF CALIFORNIA CIVIL CODE SECTION 1542, WHICH STATES, “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.” YOU HEREBY WAIVE THIS SECTION OF THE CALIFORNIA CIVIL CODE. YOU HEREBY WAIVE ANY SIMILAR PROVISION IN LAW, REGULATION, OR CODE THAT HAS THE SAME INTENT OR EFFECT AS THE AFOREMENTIONED RELEASE.
Those who access or use the Service from other jurisdictions not in the United States do so at their own volition and are entirely responsible for compliance with all applicable United States, foreign, and local laws and regulations, including but not limited to export and import regulations. Your promise and agree to use the Service in strict compliance with any local, domestic, national, and/or territorial laws, rules, and regulation that are or may be applicable.
23. Indemnification
You agree to indemnify and hold harmless us and any of our affiliates, employees, officers, directors, agents, successors, and assigns for any claims by you or any third party which may arise from or relate to this Agreement or the provision of our Service to you, including any damages caused by your use of our Service, or the permitted use by others of your license and User Account. You also agree that you have a duty to defend us against such claims and we may require you to pay for an attorney(s) of our choice in such cases. You agree that this indemnity extends to requiring you to pay for our reasonable attorneys’ fees, court costs, and disbursements. In the event of a claim such as one described in this paragraph, we may elect to settle with the party/parties making the claim, and you shall be liable for the damages as though we had proceeded with a trial.
24. Assignment
We may assign or delegate this Agreement, in whole or in part, to any person or entity at any time with or without your consent. You may not assign or delegate any rights or obligations under these Terms without our prior written consent, and any unauthorized assignment and delegation by you is ineffective.
25. Choice of Law
This Agreement shall be governed by the laws in force in the State of California. The offer and acceptance of this contract are deemed to have occurred in the State of California.
26. Forum of Dispute
Where the subject matter of a dispute arising out of, or relating in any way to, this Agreement, the Service or your use of the Service, or any products or services offered or distributed through the Service (“Disputes”) is eligible for it, you agree that any disputes shall be heard solely within the Civil Court of the City of San Francisco – Small Claims (“Small Claims Court”). If a dispute claims multiple claims and one or more of those claims would be eligible to be heard by the Small Claims Court, you agree not to bring the other claims against us and to instead proceed within the Small Claims Court. If you would be entitled in a dispute to an amount exceeding the monetary jurisdiction of the Small Claims Court, you agree to waive your right to collect any damages in excess of the monetary jurisdiction and instead still bring your claim within the Small Claims Court. At the time of drafting this Agreement, the monetary jurisdiction of the Small Claims Court is $10,000. You agree that if a dispute is eligible to be heard in Small Claims Court but you would be entitled to an additional or alternative remedy in a higher court, such as injunctive relief, you will waive your right to that remedy and still bring the dispute within the Small Claims Court.
Except as specifically stated herein, all other Disputes not eligible for resolution in Small Claims Court shall be resolved exclusively by final, binding arbitration. You hereby waive your right to have any future Dispute heard by a judge or jury (except as otherwise set forth in this Section 26). The provisions of this Section 26 shall constitute your and Wellest’s written agreement to arbitrate Disputes under the Federal Arbitration Act. Any modification to this Agreement shall be in writing and signed by you and Wellest. The arbitration will be administered by the American Arbitration Association and conducted before a single arbitrator pursuant to its rules.
You agree that you may bring claims against us only in your individual capacity and not as a plaintiff or class member in any purported class or representative proceeding. In addition, you agree that disputes shall be arbitrated only on an individual basis and not in a class, consolidated, or representative action. The arbitrator does not have the power to vary these provisions.
Notwithstanding anything to the contrary in this Agreement, either party may bring suit in court of competent jurisdiction in the State of California, seeking an injunction or other equitable relief arising out of or relating to the infringement of a party’s or a third party’s intellectual property rights.
You agree that any cause of action arising out of or related to the service must commence within one (1) year after the cause of action accrues. Otherwise, such cause of action shall be permanently barred.
If you bring a dispute in a manner other than in accordance with this section, you agree that we may move to have it dismissed, and that you will be responsible for our reasonable attorneys’ fees, court costs, and disbursements in doing so.
You agree that any Dispute that, for whatever reason, is deemed not subject to the jurisdiction requirements set forth above shall be subject to exclusive jurisdiction in the state or federal courts in San Francisco, California.
27. Force Majeure
You agree that we are not responsible to you for anything that we may otherwise be responsible for, if it is the result of events beyond our control, including, but not limited to, acts of God, war, insurrection, riots, terrorism, crime, labor shortages (including lawful and unlawful strikes), embargoes, postal disruption, communication disruption, unavailability of payment processors, failure or shortage of infrastructure, shortage of materials, or any other event beyond our control.
28. Severability
In the event that a provision of this Agreement is found to be unlawful, conflicting with another provision of the Agreement, or otherwise unenforceable, the Agreement will remain in force as though it had been entered into without that unenforceable provision being included in it.
If two or more provisions of this Agreement are deemed to conflict with each other’s operation, we shall have the sole right to elect which provision remains in force.
29. Non-Waiver
We reserve all rights afforded to us under this Agreement as well as under the provisions of any applicable law. Our non-enforcement of any particular provision or provisions of this Agreement or any applicable law should not be construed as our waiver of the right to enforce that same provision under the same or different circumstances at any time in the future.
30. Termination & Cancellation
We may terminate your access to our Service at our discretion without explanation, though we will strive to provide a timely explanation in most cases. Under no circumstances, including termination or cancellation of our Service to you, will we be liable for any losses related to actions of other Users.
31. Assignment of Rights
You may not assign your rights and/or obligations under this Agreement to any other party without our prior written consent. We may assign our rights and/or obligations under this Agreement to any other party at our discretion.
32. Corporate Information
Wellest Inc. is a corporation formed lawfully in the State of Delaware.
33. California Users & Residents
Pursuant to California Civil Code Section 1789.3, any questions about pricing, complaints, or inquiries about the Company must be addressed to our agent for notice and sent via certified mail to that agent. For our agent’s most current contact information, please send a request to legal@wellest.com.
Lastly, California Users are also entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
User Privacy Terms
34. Glossary & Data Privacy Manager Contact
In addition to the definitions outlined in Section 2, please also use this Glossary to understand the meaning of the terms used in these User Privacy Terms.
Lawful Basis
“Legitimate Interest” means the interest of our business in conducting and managing our business to enable us to give you the best Service and the best and most secure experience. We make sure we consider and balance any potential impact on you (both positive and negative) and your rights before we process your personal data for our Legitimate Interests. We do not use your personal data for activities where our interests are overridden by the impact on you (unless we have your consent or are otherwise required or permitted to by law).
“Performance of Contract” means processing your data where it is necessary for the performance of a contract to which you are a party or to take steps at your request before entering into such a contract.
“Comply with a legal or regulatory obligation” means processing your personal data where it is necessary for compliance with a legal or regulatory obligation that we are subject to.
Third Parties
“Internal Third Parties” means other companies controlled by us acting as joint controllers or processors and who are based in the US.
“External Third Parties” means (i) service providers who provide IT and system administration services; and/or (ii) professional advisers, including lawyers, bankers, auditors and insurers based in the US who provide consultancy, banking, legal, insurance and accounting services.
Controller
“Controller” means us, Wellest, who controls and is responsible for your personal data. We have appointed a data privacy manager (DPM) who is responsible for overseeing questions in relation to these User Privacy Terms. If you have any questions about these User Privacy Terms, including any requests to exercise your legal rights, please contact the DPM using the details set out below.
DPM Contact Details
Data Privacy Manager
Attn: Dave Sekowski
Wellest Inc.
60 29th St
Suite 112
San Francisco, CA 94110
35. Information Collected
We use different methods to collect data from and about you including through:
• Direct interactions: You may give us your personal data by filling in forms or by corresponding with us by post, phone, email or otherwise. This includes personal data you provide when you enquire about our products or services.
• Automated technologies or interactions: As you interact with our website, we may automatically collect Mobile Info (see below) about your equipment, browsing actions and patterns. We collect this personal data by using cookies and other similar technologies.
• Third parties or publicly available sources: We may receive personal data about you from various third parties and public sources.
Identifying Information
We may collect certain personal information (“ID Info”) from you when you sign up to our Service that can be used to identify you, such as your name, address, e-mail address, billing information, and/or other information that we deem relevant for the purpose of providing you with our Service, and any information that you provide to us voluntarily. The information we collect from you, to the extent that it is private, is disclosed only in accordance with this Agreement.
Non-Identifying Information
Whenever you use our Service, we may collect non-identifying information (“Non-ID Info”) from you, such as your IP address, referring URL, operating system, cookie information, and Internet Service Provider. Without a subpoena, voluntary compliance on the part of your Internet Service Provider, or additional records from a third party, this information alone cannot usually be used to identify you.
Mobile
When you download or access the Services via a mobile device, we may receive information about your location (based on your IP address) and your mobile device, including various unique identifiers associated with your device, hardware type, and the version of your operating system (“Mobile Info”). We and may use this information to provide you with personalized advertising and other content, including advertising and content based on your location.
Personal Health Information
As part of this Service, you may transmit to us certain information relating to sensitive medical conditions and medical history, your personal health information (“PHI”). By using our Service you agree that we may disclose PHI in order to (i) perform administrative, management, or legal activities as set forth in this Agreement; (ii) comply with any legal obligations, federal and state laws, and/or health and human service requirements; (iii) conduct or perform research and satisfy research objectives and goals to improve our Service; (iv) provide the Service to you; and (v) remove identifiers from PHI and use or disclose such de-identified information as permitted by law and this Agreement.
36. Use of Your Information
We may use your information to:
• Enhance or improve User experience or our Service.
• Send communications about our Service or respond to inquiries.
• Send communications and updates about the Company, including newsletters and notifications of amendments to legal documents such as this Agreement.
• Perform any other function that we believe in good faith is necessary to protect the security or proper functioning of our Service.
• As consented by you in Section 35 above.
Additionally, we have set out below, in a table format, a description of all the ways we plan to use your personal data, and which of the legal bases we rely on to do so. We have also identified what our legitimate interests are where appropriate.
Note that we may process your personal data for more than one lawful ground depending on the specific purpose for which we are using your data.
37. Accessing, Editing & Removing Your Information
Users may in some cases be able to review and edit the personal information they have provided to us by logging into their account and editing their information. Although most changes may occur immediately, information may still be stored in your web browser’s cache or app’s local memory. We take no responsibility for stored information in your cache, or in other devices that may store information, and disclaim all liability of such. In addition, we may, from time to time, retain residual information about you in our backup and/or database.
38. Cookies, Web Beacons, Browser Local Storage & Similar Technologies
Cookies are small data files that are placed on your computer or other devices by websites that you visit.
We may use cookies for various purposes including, but not limited to, remembering your preferences, maintaining user sessions, improving security of our services, collecting usage information, and targeting ads.
Since cookies are used to maintain user sessions, it is necessary that you enable cookies in your browser to be able to log into the Service, and you hereby acknowledge that we have informed you of our use of cookies and that you consent to our use of cookies in relation to the platform by which you are accessing our Service.
We may use the Web Storage API (a.k.a, local or session storage) provided by your browser or app to cache information related to your account, including your personal data.
We may use various third-party services that may use cookies, web beacons, and similar technologies to collect information. Such services include, but not limited to, web analytics services, advertisement services, and social media services.
This Agreement does not cover cookies practices used by third-party service providers. We will do our best to maintain links to privacy policies of the third-party service providers that we use in this document.
39. Third-Party Websites
We may post links to third-party websites on our Service. Additionally, other materials made available through our Service may contain third-party website links or files. We do not screen third-party websites or files for privacy or security issues, and you release us from any liability for the conduct or content of these third parties.
Please be aware that this Agreement, and any other policies in place, in addition to any amendments, does not create rights enforceable by third parties or require disclosure of any personal information relating to members of the Service. We bear no responsibility for the information collected or used by any advertiser or third-party website. Please review the privacy policy and terms of service for each site you visit.
40. Third-Party Access to Your Information
Although you are entering into an agreement with us to disclose your information to us, we do use third-party individuals and organizations to assist us, including contractors, advertising partners, web hosting companies, and others.
Throughout the course of our provision of our Service to you, we may delegate our authority to collect, access, use, and disseminate your information. For example, our web host stores the information that you provide us, and we may hire outside contractors to perform maintenance or assist us in securing our Service.
It is therefore necessary that you grant the third parties we may use in the course of our business the same rights that you afford us under this Agreement. For this reason, you hereby agree that for every authorization which you grant to us in this Agreement, you also grant to any third party that we may hire, contract, or otherwise retain the services of for the purpose of operating, maintaining, repairing, or otherwise improving or preserving our Service or its underlying files or systems. You agree not to hold us liable for the actions of any of these third parties, even if we would normally be held vicariously liable for their actions, and that you must take legal action against them directly should they commit any tort or other actionable wrong against you.
Without limiting the generality of the foregoing, you authorize us to collect, share, store, exchange, and otherwise use your information in conjunction with the Service.
This Section 40 shall not apply to your PHI held by us which shall only be used in accordance with the consent set forth in Section 34 above.
41. Release of Your Information for Legal Purposes
At times, it may become necessary or desirable, for legal purposes, to release your information in response to a request from a government agency or a private litigant. You agree that we may disclose your information to a third party where we believe, in good faith, that it is desirable to do so for the purposes of a civil action, criminal investigation, or other legal matter. In the event that we receive a subpoena affecting your privacy, we may elect to notify you to give you an opportunity to file a motion to quash the subpoena, or we may attempt to quash it ourselves, but we are not obligated to do either. We may also proactively report you, and release your information to, third parties where we believe that it is prudent to do so for legal reasons, such as our belief that you have engaged in fraudulent activities. You release us from any damages that may arise from or relate to the release of your information to a request from law enforcement agencies or private litigants.
42. Commercial & Non-Commercial Communications
By providing information to the Service that forms the basis of communication with you, such as contact information, you waive all rights to file complaints concerning unsolicited email from us since, by providing such information, you agree to receive communication from us or anyone else covered under this Agreement. However, you may unsubscribe from certain communications by notifying us that you no longer wish to receive solicitations or information and we will endeavor to remove you from the database.
43. Security Measures
We take certain measures to enhance the security of our Service, specifically: (i) the Service is protected by multiple firewalls including AWS Web application Firewall (WAF) for secure access; (ii) WAF also functions as IDS/IPS capable of detecting and thwarting cyber-attacks such as DDoS, SQL Injection, Cross Site Scripting, etc.; (iii) the Service is protected by SSL certificates that encrypts all ingress and egress traffic; (iv) Network Security Groups (NSG) allow only the intended traffic to traverse between the servers hosting the application; (v) no PHI is stored within our mobile application; and (vi) periodic vulnerability assessment and penetration testing is carried out on the Service. We have put in place appropriate security measures to prevent your personal data from being accidentally lost, used or accessed in an unauthorized way, altered or disclosed. In addition, we limit access to your personal data to those employees, agents, contractors and other third parties who have a business need to know. They will only process your personal data on our instructions and they are subject to a duty of confidentiality. We have put in place procedures to deal with any suspected personal data breach and will notify you and any applicable regulator of a breach where we are legally required to do so.
44. Data Retention
We will only retain your personal data for as long as necessary to fulfill the purposes we collected it for, including for the purposes of satisfying any legal, accounting, or reporting requirements.
To determine the appropriate retention period for personal data, we consider the amount, nature, and sensitivity of the personal data, the potential risk of harm from unauthorized use or disclosure of your personal data, the purposes for which we process your personal data and whether we can achieve those purposes through other means, and the applicable legal requirements.
In some circumstances you can ask us to delete your data: see Request erasure below for further information.
In some circumstances we may anonymize your personal data (so that it can no longer be associated with you) for research or statistical purposes in which case we may use this information indefinitely without further notice to you.
45. Your Legal Rights
You have the right to:
Request access to your personal data (commonly known as a "data subject access request"). This enables you to receive a copy of the personal data we hold about you and to check that we are lawfully processing it.
Request correction of the personal data that we hold about you. This enables you to have any incomplete or inaccurate data we hold about you corrected, though we may need to verify the accuracy of the new data you provide to us.
Request erasure of your personal data. This enables you to ask us to delete or remove personal data where there is no good reason for us continuing to process it. You also have the right to ask us to delete or remove your personal data where you have successfully exercised your right to object to processing (see below), where we may have processed your information unlawfully or where we are required to erase your personal data to comply with local law. Note, however, that we may not always be able to comply with your request of erasure for specific legal reasons which will be notified to you, if applicable, at the time of your request.
Object to processing of your personal data where we are relying on a legitimate interest (or those of a third party) and there is something about your particular situation which makes you want to object to processing on this ground as you feel it impacts on your fundamental rights and freedoms. In some cases, we may demonstrate that we have compelling legitimate grounds to process your information which override your rights and freedoms.
Request restriction of processing of your personal data. This enables you to ask us to suspend the processing of your personal data in the following scenarios: (i) if you want us to establish the data's accuracy; (ii) where our use of the data is unlawful but you do not want us to erase it; (iii) where you need us to hold the data even if we no longer require it as you need it to establish, exercise or defend legal claims; or (iv) you have objected to our use of your data but we need to verify whether we have overriding legitimate grounds to use it.
Request the transfer of your personal data to you or to a third party. We will provide to you, or a third party you have chosen, your personal data in a structured, commonly used, machine-readable format.
Withdraw consent at any time where we are relying on consent to process your personal data. However, this will not affect the lawfulness of any processing carried out before you withdraw your consent. If you withdraw your consent, we may not be able to provide our Service to you. We will advise you if this is the case at the time you withdraw your consent.
No fee usually required so that you will not have to pay a fee to access your personal data (or to exercise any of the other rights). However, we may charge a reasonable fee if your request is clearly unfounded, repetitive or excessive. Alternatively, we may refuse to comply with your request in these circumstances.
Time limit to respond to your legitimate requests will be one (1) month. Occasionally it may take us longer than a month if your request is particularly complex or you have made a number of requests. In this case, we will notify you and keep you updated.
If you wish to exercise any of the rights set out above, please contact our DPM (see above).
46. Your California Online Privacy Rights
We permit residents of California to use our Service. Therefore, it is our intent to comply with the California Business and Professions Code §§ 22575-22579. If you are a California resident you may request certain information regarding our disclosure of personal information to any third parties for their direct marketing purposes. Various provisions throughout this Agreement address requirements of the Californian privacy statutes. In summary, you must presume that we collect electronic information from all visitors. You may contact us at legal@wellest.com with any questions.
47. International Transfer
We share your personal data within the company group. If you are located in the European Union, this will involve transferring your data outside the European Economic Area (EEA) because we are a US-based company. We ensure your personal data is protected by requiring all our group companies to follow the same rules when processing your personal data. These rules are called "binding corporate rules". Some of our external third parties are based outside the European Economic Area (EEA) so their processing of your personal data will involve a transfer of data outside the EEA.
Whenever we transfer your personal data out of the EEA, we ensure a similar degree of protection is afforded to it by ensuring at least one of the following safeguards is implemented:
• We will only transfer your personal data to countries that have been deemed to provide an adequate level of protection for personal data by the European Commission.
• Where we use certain service providers, we may use specific contracts approved by the European Commission which give personal data the same protection it has in Europe.
• Where we use providers based in the US, we may transfer data to them if they are part of the Privacy Shield which requires them to provide similar protection to personal data shared between the Europe and the US.
Please contact our DPM (see Section 34) if you want further information on the specific mechanism used by us when transferring your personal data out of the EEA.
48. Amendments
We may amend this Agreement from time to time. When we amend this Agreement, we will post the changes here. Your continued use of our Service shall constitute your acceptance of such changes. Historic versions can be obtained by contacting our DPM (see Section 34).
