Last Revised Date: March , 2017
USE OF THE SITES AND SERVICES IS NOT FOR MEDICAL EMERGENCIES. IF YOU THINK YOU HAVE A MEDICAL EMERGENCY, CALL 911 IMMEDIATELY.
1. Applicability of These Terms.
In order to receive our Services, you must register as more fully described below in the section entitled “Registration.” The Services are available only to individuals who are at least 18 years old. You represent and warrant that if you are an individual, you are of legal age to form a binding contract and are at least 18 years old, and that all registration information you submit is accurate and truthful. Company may, in its sole discretion, refuse to offer the Services to any person or entity and change our eligibility criteria at any time. This provision is void where prohibited by law and the right to access the Services is revoked in such jurisdictions.
2. Our Services.
We offer mobile-based programs for changing behaviors that can lead to health problems, including health coaching, peer mentoring, and data logging, to individuals who may benefit from the use of such services. Our platform includes, without limitation, the following services (collectively, the “Services”):
- The ability to access health information related to your health goals.
- The provision of other information about the Company and our products and services through the various websites we own and operate, including, without limitation, the Welkin mobile App, www.welkinhealth.com, website and domain name (collectively, the “Services”), and any other features, content, or applications offered from time to time by the Company in connection therewith.
THE SERVICES DO NOT INCLUDE THE PROVISION OF MEDICAL CARE BY THE COMPANY. RATHER, THE SERVICES ENABLE REGISTERED USERS TO ACCESS REMOTE HEALTH COACHING TOOLS AND RESOURCES, INCLUDING A HEALTH COACH, WHO MAY PROVIDE YOU WITH LIMITED WEB-, TELEPHONE-, OR EMAIL-BASED SUPPORT.
THE COMPANY DOES NOT EMPLOY OR CONTRACT WITH PHYSICIANS TO PROVIDE MEDICAL CARE TO YOU. TO THE EXTENT YOU RECEIVE MEDICAL CARE CONSEQUENT TO THE SERVICES, YOUR TREATING MEDICAL PROFESSIONAL IS RESPONSIBLE FOR OBTAINING YOUR INFORMED CONSENT TO ANY MEDICAL DIAGNOSIS OR TREATMENT, INCLUDING WITHOUT LIMITATION, YOUR CONSENT TO USE TELEMEDICINE IN THE COURSE OF YOUR TREATMENT TO THE EXTENT SUCH CONSENT IS REQUIRED BY APPLICABLE STATE LAW.
3. Modification of Terms.
Company reserves the right, at its sole discretion, to modify or replace any of these Terms, or change, suspend, or discontinue the Services (including without limitation, the availability of any feature, database, or content) at any time by posting a notice on the Sites or by sending you an email. Company may also impose limits on certain features and services or restrict your access to parts or all of the Services without notice or liability. It is your responsibility to check these Terms periodically for changes. Your continued use of the Services following the posting of any changes to these Terms constitutes acceptance of those changes.
4. No Medical Advice.
COMPANY DOES NOT OFFER MEDICAL ADVICE OR DIAGNOSES OR ENGAGE IN THE PRACTICE OF MEDICINE. OUR SERVICES ARE NOT INTENDED TO BE, AND DO NOT CONSTITUTE, A SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT AND ARE OFFERED FOR INFORMATIONAL PURPOSES ONLY. ALWAYS SEEK THE ADVICE OF YOUR PHYSICIAN OR OTHER QUALIFIED HEALTH PROVIDER WITH ANY QUESTIONS REGARDING YOUR MEDICAL CONDITION OR THE USE (OR FREQUENCY) OF ANY MEDICATION OR MEDICAL DEVICE. NEVER DISREGARD PROFESSIONAL MEDICAL ADVICE OR DELAY IN SEEKING IT BECAUSE OF SOMETHING YOU HAVE READ IN CONNECTION WITH OUR SERVICES. NONE OF THE INFORMATION ON THE SITES REPRESENTS OR WARRANTS THAT ANY PARTICULAR DRUG OR TREATMENT IS SAFE, APPROPRIATE, OR EFFECTIVE FOR YOU.
5. No Emergency Services.
THE SITES AND SERVICES ARE FOR NON-EMERGENCY PURPOSES ONLY. DO NOT ATTEMPT TO ACCESS EMERGENCY CARE THROUGH THE SITES OR THE SERVICES. IF AT ANY TIME YOU ARE CONCERNED ABOUT YOUR CARE OR TREATMENT, OR IF YOU THINK YOU HAVE A MEDICAL EMERGENCY, CALL 911 OR GO TO THE NEAREST OPEN EMERGENCY ROOM.
THE SERVICES ARE NOT INTENDED TO SUPPORT OR CARRY EMERGENCY OR TIME-CRITICAL CALLS OR COMMUNICATIONS TO ANY TYPE OF HOSPITAL, LAW ENFORCEMENT AGENCY, MEDICAL CARE UNIT, OR ANY OTHER KIND OF EMERGENCY OR TIME-CRITICAL SERVICE (COLLECTIVELY, “EMERGENCY SERVICES”).
Company, its affiliates or staff are in no way liable for such emergency calls or communications. By agreeing to these Terms, you understand that additional arrangements must be made to access Emergency Services. To access Emergency Services, you acknowledge and accept your responsibility to purchase, separately from the Services, traditional wireless or wireline telephone service and other means of communication intended for access to Emergency Services. You recognize and agree that Company is not required to offer Emergency Services or access thereto pursuant to any applicable local and or national rules, regulation or law. You further acknowledge that Company is not a replacement for your primary telephone service or any other means of communication.
6. Privacy and Your Personal Information.
7. Rules and Conduct.
As a condition of use, you promise not to use the Services for any purpose that is prohibited by these Terms. The Sites and Services (including, without limitation, any Content or User Submissions (both as defined below)) are provided only for your own personal, non-commercial use. You are responsible for all of your activity in connection with the Services. For purposes of these Terms, the term “Content” includes, without limitation, any advertisements, advice, suggestions, videos, audio clips, written forum comments, information, data, text, photographs, software, scripts, graphics, and interactive features generated, provided, or otherwise made accessible by Company or its partners on or through the Services.
By way of example, and not limitation, you shall not (and shall not permit any third party to) either (a) take any action or (b) upload, download, post, submit or otherwise distribute or facilitate distribution of any content on or through the Services, that:
- infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any other person or entity;
- is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, or profane;
- constitutes unauthorized or unsolicited advertising, junk or bulk e-mail (“spamming”);
- involves commercial activities and/or sales without Company’s prior written consent such as contests, sweepstakes, barter, advertising, or pyramid schemes;
- contains software viruses or any other computer codes, files, or programs that are designed or intended to disrupt, damage, limit or interfere with the proper function of any software, hardware, or telecommunications equipment or to damage or obtain unauthorized access to any system, data, password or other information of Company or any third party;
- impersonates any person or entity, including any employee or representative of Company; or
- supplies our Site and Services with false or inaccurate information.
Additionally, you shall not: (a) take any action that imposes or may impose (as determined by Company in its sole discretion) an unreasonable or disproportionately large load on Company’s (or its third party providers’) infrastructure; (b) interfere or attempt to interfere with the proper working of the Services or any activities conducted on the Services; (c) bypass any measures Company may use to prevent or restrict access to the Services (or other accounts, computer systems or networks connected to the Services); (d) run Maillist, Listserv, any form of auto-responder or “spam” on the Services; or (e) use manual or automated software, devices, or other processes to “crawl” or “spider” any page of the Sites.
You shall not (directly or indirectly): (a) decipher, decompile, disassemble, reverse engineer or otherwise attempt to derive any source code or underlying ideas or algorithms of any part of the Service, except to the limited extent applicable laws specifically prohibit such restriction; (b) modify, translate, or otherwise create derivative works of any part of the Services; or (c) copy, rent, lease, distribute, or otherwise transfer any or all of the rights that you receive hereunder. You shall abide by all applicable local, state, national and international laws and regulations.
Company reserves the right to remove any Content from the Sites or the Services at any time, for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such Content or if Company is concerned that you may have violated these Terms), or for no reason at all. The Company has the right to alter, monitor and filter Content (e.g., blocking or replacing certain language), disclose any Content to any third party in order to operate the Site for any reason, including to protect the Company and its employees, officers, directors, agents, representatives, etc. or to comply with legal obligations or governmental requests. You are responsible for providing the mobile device, wireless service plan, software, Internet connections and/or other equipment or services that you need to download, install and use the Services. WE DO NOT GUARANTEE THAT THE SERVICES CAN BE ACCESSED AND USED ON ANY PARTICULAR DEVICE OR WITH ANY PARTICULAR SERVICE PLAN. WE DO NOT GUARANTEE THAT THE SERVICES WILL BE AVAILABLE IN ANY PARTICULAR GEOGRAPHIC LOCATION. As part of the Services you may receive push notifications, local client notifications, text messages, picture messages, alerts, emails or other types of messages directly sent to you (“Push Messages”), You acknowledge that, when you use the Services, your wireless service provider may charge you fees for data, text messaging and/or other wireless access, including in connection with Push Messages. You have control over the Push Messages settings, and can opt in or out of these Push Messages through the Services or through your mobile device’s operating system (with the possible exception of infrequent, important service announcements and administrative messages). Please check with your wireless service provider to determine what fees apply to your access to and use of the Services, including your receipt of Push Messages from the Company. YOU ARE SOLELY RESPONSIBLE FOR ANY FEE, COST OR EXPENSE THAT YOU INCUR TO DOWNLOAD, INSTALL AND/OR USE THE SERVICES ON YOUR MOBILE DEVICE, INCLUDING FOR YOUR RECEIPT OF PUSH MESSAGES FROM THE COMPANY.
As a condition to using certain aspects of the Services, you will be required to register with Company and select a password and screen name (“Company User ID”). You shall provide Company with accurate, complete, and updated registration information. Failure to do so shall constitute a breach of these Terms, which may result in immediate termination of your Company account. You shall not (a) select or use as a Company User ID a name of another person with the intent to impersonate that person; (b) use as a Company User ID a name subject to any rights of a person other than you without appropriate authorization; or (c) use as a Company User ID a name that is otherwise offensive, vulgar or obscene. Company reserves the right to refuse registration of, or cancel a Company User ID in its sole discretion. You are solely responsible for activity that occurs on your account and shall be responsible for maintaining the confidentiality of your Company password. You shall never use another user’s account without such other user’s express permission. You will immediately notify Company in writing of any unauthorized use of your account, or other account related security breach of which you are aware.
9. Fees and Payment.
Company reserves the right to require payment of fees for certain features of the Services. Should you elect to subscribe to such features, you shall pay all applicable fees, as described on the Sites in connection with such features. Company reserves the right to change its price list and to institute new charges at any time, upon ten (10) days prior notice to you, which may be sent by email or posted on the Sites. Use of the Services by you following such notification constitutes your acceptance of any new or increased charges.
10. Third Party Sites.
The Services may permit you to link to other websites or resources on the Internet, and other websites or resources may contain links to the Sites. When you access third party websites, you do so at your own risk. These other websites are not under Company’s control, and you acknowledge that Company is not responsible or liable for the content, functions, accuracy, legality, appropriateness or any other aspect of such websites or resources. The inclusion of any such link does not imply endorsement by Company or any association with its operators. You further acknowledge and agree that Company shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such Content, goods or services available on or through any such website or resource, or the accuracy, offensiveness, opinions, reliability, privacy practices or other policies of or contained in any third party websites or third party Content. Inclusion of, linking to or permitting the use of any third party site or any third party Content does not imply approval or endorsement thereof by the Company. If you decide to leave the Site and access the third party sites or to access or use any third party Content, you do so at your own risk and you should be aware that our terms and policies no longer govern. You should review the applicable terms and policies, including privacy and data gathering practices, of any site to which you navigate from the Site or relating to any applications you use or install from the third party site.
11. Company and Site Content.
You agree that the Services contain Content specifically provided by Company or its partners and that such Content is protected by copyrights, trademarks, service marks, patents, trade secrets or other proprietary rights and laws. You shall abide by all copyright notices, information, and restrictions contained in any Content accessed through the Services. Except as specifically permitted herein or expressly authorized in writing by the Company, you agree that you will not directly or indirectly: (a) distribute, sell, transfer, rent, lease, sublicense or otherwise exploit the Services, any Content or third party submissions or other proprietary rights not owned by you (i) without the consent of the respective owners or other valid right, and (ii) in any way that violates any third party right; or (b) copy, reproduce, adapt, create derivative works of, translate, localize, port or otherwise modify the Services, any updates, or any part thereof in any form or manner or by any means. You understand and agree that you are not permitted to: (x) remove or alter any copyright or other proprietary rights’ notice or restrictive rights legend contained or included in the Services; (y) use any means to discover the trade secrets in the Services; or (z) otherwise circumvent any functionality that controls access to or otherwise protects the Services. Any attempt to do any of the foregoing is a violation of the rights of the Company and its affiliates and licensors. If you breach these restrictions, you may be subject to prosecution and damages.
You may, to the extent the Sites expressly authorize you to do so, download or copy the Content, and other items displayed on the Sites for download, for personal use only, provided that you maintain all copyright and other notices contained in such Content. You shall not store any significant portion of any Content in any form. Copying or storing of any Content for other than personal, noncommercial use is expressly prohibited without prior written permission from Company, or from the copyright holder identified in such Content’s copyright notice.
12. User Submissions.
The Services may provide you with the ability to upload, submit, disclose, distribute or otherwise post (hereafter, “posting”) content, videos, audio clips, written forum comments, data, text, photographs, software, scripts, graphics, works of authorship or other information related to the Site and Services, including without limitation any feedback or suggestions for improvements, enhancements, or error corrections (collectively, “User Submissions”). You represent and warrant to us that you have the legal right to post such User Submissions and that doing so will not violate any law or infringe upon or violate the rights of any person or entity.
By posting User Submissions on or at any of the Sites or otherwise through the Services, except for any individually identifiable health information you submit to us, you hereby irrevocably and unconditionally assign to us all right, title, and interest in and to any such User Submissions (including, without limitation, any modifications, reproductions, or derivative works thereof), and all User Submissions you supply to us through the Sites or the Services shall be deemed and shall remain our property.
You understand that Company shall have the right to reformat, excerpt, translate, filter and modify any materials, content or information submitted by you; and that all information publicly posted or privately transmitted through the Sites is the sole responsibility of the person from which such content originated and that Company will not be liable for any errors or omissions in any content; and that Company cannot guarantee the identity of any other users with whom you may interact in the course of using the Site and Services.
Company does not endorse and has no control over any User Submissions. Company cannot guarantee the authenticity of any data which users may provide about themselves. You acknowledge that all Content accessed by you using the Services is at your own risk and you will be solely responsible for any damage or loss to any party resulting therefrom.
Company has no obligation to monitor the Sites, Services, Content, or User Submissions. Company may remove any User Submission at any time for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such User Submission), or for no reason at all. You understand that the Company shall have the right, but not the obligation, to record or monitor for quality assurance and training purposes all telephonic, e-mail and other forms of communication. By accepting these Terms, you consent to any such recording or saving.
Under no circumstances will Company be liable in any way for any Content, including, but not limited to, any errors or omissions in any Content, or any loss or damage of any kind incurred in connection with use of or exposure to any Content posted, emailed, accessed, transmitted or otherwise made available via the Services.
Company may terminate your access to all or any part of the Services at any time, with or without cause, with or without notice, effective immediately, which may result in the forfeiture and destruction of all information associated with your membership. Upon termination of your right to use our Services or Sites or our termination of the Services or Sites, all licenses and other rights granted to you by these Terms will immediately terminate.
If you wish to terminate your account, you may do so by following the instructions on the Sites. Any fees paid hereunder are non-refundable. All provisions of these Terms which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability.
14. Warranty Disclaimer.
Company has no special relationship with or fiduciary duty to you. You acknowledge that Company has no control over, and no duty to take any action regarding: which users gains access to the Sites; what Content you access via the Sites; what effects the Content may have on you; how you may interpret or use the Content; or what actions you may take as a result of having been exposed to the Content. You release Company from all liability for you having acquired or not acquired Content through the Sites. The Sites may contain, or direct you to websites containing, information that some people may find offensive or inappropriate. Company makes no representations concerning any content contained in or accessed through the Sites, and Company will not be responsible or liable for the accuracy, copyright compliance, legality or decency of material contained in or accessed through the Sites.
THE SERVICES (INCLUDING, WITHOUT LIMITATION, ANY CONTENT) ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND ARE WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE OR USAGE OF TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. COMPANY, AND ITS DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS, PARTNERS AND CONTENT PROVIDERS DO NOT WARRANT THAT: (A) THE SERVICES WILL BE SECURE OR AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; (B) ANY DEFECTS OR ERRORS WILL BE CORRECTED; (C) ANY CONTENT OR SOFTWARE AVAILABLE AT OR THROUGH THE SERVICES IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR (D) THE RESULTS OF USING THE SERVICES WILL MEET YOUR REQUIREMENTS. COMPANY DOES NOT WARRANT, ENDORSE, GUARANTEE OR ASSUME RESPONSIBILITY FOR ANY SERVICE OR PRODUCT ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICES OR ANY HYPERLINKED WEBSITE OR FEATURED IN ANY BANNER OR OTHER ADVERTISING AND COMPANY WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES, OTHER THAN AS EXPRESSLY PROVIDED HEREIN. NEITHER COMPANY NOR ITS AFFILIATES OR LICENSORS IS RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF YOU OR ANY USER. YOUR USE OF THE SERVICES IS SOLELY AT YOUR OWN RISK. THE CONTENT PROVIDED BY OR THROUGH THE SERVICES IS FOR INFORMATIONAL PURPOSES ONLY, AND SHOULD NOT BE RELIED UPON. COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES CONCERNING THE APPROPRIATENESS, ACCURACY, RELIABILITY, USEFULNESS, COMPLETENESS, OR TIMELINESS OF SUCH CONTENT. NO CONTENT IS INTENDED TO SUBSTITUTE FOR PERSONAL ADVICE FROM A QUALIFIED PROFESSIONAL. WHEN APPLICABLE, ALWAYS SEEK THE ADVICE OF A QUALIFIED PROFESSIONAL, AND NEVER DISREGARD PROFESSIONAL ADVICE OR DELAY IN SEEKING IT BECAUSE OF ANY CONTENT.
BY USING THE SERVICES, YOU AGREE THAT COMPANY SHALL NOT BE RESPONSIBLE FOR: (A) ANY CONTENT; (B) ANY PERSON’S RELIANCE ON ANY SUCH CONTENT, WHETHER OR NOT CORRECT, CURRENT AND COMPLETE; OR (C) THE CONSEQUENCES OF ANY ACTION THAT YOU OR ANY OTHER PERSON TAKES OR FAILS TO TAKE BASED ON ANY CONTENT OR OTHERWISE AS A RESULT OF YOUR USE OF THE SERVICE.
SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
ELECTRONIC COMMUNICATIONS PRIVACY ACT NOTICE (18 U.S.C. §§ 2701-2711): COMPANY MAKES NO GUARANTY OF CONFIDENTIALITY OR PRIVACY OF ANY COMMUNICATION OR INFORMATION TRANSMITTED ON THE SITES OR ANY WEBSITE LINKED TO THE SITES. Company will not be liable for the privacy of email addresses, registration and identification information, disk space, communications, confidential or trade-secret information, or any other Content stored on Company’s equipment, transmitted over networks accessed by the Sites, or otherwise connected with your use of the Services.
You shall defend, indemnify, and hold harmless Company, its affiliates and each of its, and its affiliates employees, contractors, directors, suppliers and representatives from all liabilities, claims, and expenses, including reasonable attorneys’ fees, that arise from or relate to: (a) your use or misuse of, or access to, the Sites, Services, Content or otherwise from your User Submissions; (b) your violation of these Terms; or (c) infringement by you, or any third party using the your account, of any intellectual property or other right of any person or entity. Company reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will assist and cooperate with Company in asserting any available defenses.
16. Limitation of Liability.
If you have a dispute with one or more users or any other third party resulting from or arising out of or in connection with your use of the Service or Site, you release us (and our officers, directors, agents, subsidiaries, joint ventures and employees) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. If you are a California resident, you waive California Civil Code §1542, which says: “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.”
NOTHING HEREIN SHALL LIMIT THE POTENTIAL PROFESSIONAL LIABILITY OF A PHYSICIAN OR OTHER LICENSED HEALTH CARE PROVIDER ARISING FROM OR RELATED TO MEDICAL SERVICES YOU MAY RECEIVE CONSEQUENT TO THE USE OF THE SITES OR SERVICES. WE ARE NOT LIABLE TO ANY PERSON OR USER FOR ANY HARM CAUSED BY THE NEGLIGENCE OR MISCONDUCT OF ANY LICENSED MEDICAL PROFESSIONAL OR ANY OTHER PARTY.
17. International/Non-California Use.
Company makes no representation that the Content is appropriate or available for use in locations outside of California, and accessing the Services is prohibited from territories where such Content is illegal. If you access the Services from other locations, you do so at your own initiative and are responsible for compliance with local laws.
18. Dispute Arbitration; No Class Actions.
A printed version of these Terms and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to these Terms to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. You and Company agree that any cause of action arising out of or related to the Services must commence within one (1) year after the cause of action arose; otherwise, such cause of action is permanently barred.
These Terms shall be governed by and construed in accordance with the laws of the State of California, excluding its conflicts of law rules, and the United States of America.
THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED. HOWEVER, AN ARBITRATOR CAN AWARD ON AN INDIVIDUAL BASIS THE SAME DAMAGES AND RELIEF AS A COURT (INCLUDING INJUNCTIVE AND DECLARATORY RELIEF OR STATUTORY DAMAGES), AND MUST FOLLOW THE TERMS OF THESE TERMS AS A COURT WOULD.
If you intend to seek arbitration you must first send written notice to Company’s Customer Service Center of your intent to arbitrate (“Notice”). The Notice to Company should be sent by any of the following means: (i) electronic mail to [email address]; or (ii) sending the Notice by U.S. Postal Service certified mail to [address]. The Notice must (x) describe the nature and basis of the claim or dispute; and (y) set forth the specific relief sought. The arbitration will be conducted by the American Arbitration Association (“AAA”) under its rules, including the AAA’s Supplementary Procedures for Consumer-Related Disputes. The AAA’s rules are available at www.adr.org or by calling 1-800-778-7879.
Except as otherwise provided for herein, Company will pay all AAA filing, administration and arbitrator fees. If, however, the arbitrator finds that either the substance of your claim or the relief sought is improper or not warranted, as measured by the standards set forth in Federal Rule of Civil Procedure 11(b), then the payment of all such fees shall be governed by the AAA Rules. In such case, you agree to reimburse Company for all monies previously disbursed by us that are otherwise your obligation to pay under the AAA Rules. If the arbitrator grants relief to you that is equal to or greater than the value of your demand, Company shall reimburse you for your reasonable attorneys’ fees and expenses incurred for the arbitration.
WE EACH AGREE THAT ANY DISPUTE RESOLUTION PROCEEDINGS WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION. If for any reason a claim proceeds in court rather than in arbitration we EACH WAIVE ANY RIGHT TO A JURY TRIAL. We also both agree that you or we may bring suit in court for injunctive relief, including to enjoin infringement or other misuse of intellectual property rights.
19. Integration and Severability.
These Terms and any applicable Benefit Agreement are the entire agreement between you and Company with respect to the Services and use of the Sites, and supersede all prior or contemporaneous communications and proposals (whether oral, written or electronic) between you and Company with respect to the Services and the Sites. If any provision of these Terms is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that these Terms will otherwise remain in full force and effect and enforceable. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder.
20. Certain Terms
The following terms apply to you only if you are using the Services through an app from the Apple App Store. To the extent the other terms and conditions of these Terms are less restrictive than, or otherwise conflict with, the terms and conditions of this paragraph or the App Store Terms of Service, the more restrictive or conflicting terms and conditions in this paragraph or the App Store Terms of Service apply, but solely with respect to the Welkin mobile App from the Apple App Store. You acknowledge and agree that these Terms are solely between you and the Company, not Apple, Inc. (“Apple”), and that Apple has no responsibility for the Welkin mobile App or content thereof. You acknowledge that your use of the Welkin mobile App is non-transferable and allows Your use of the Welkin mobile App solely on any iPhone or iPod touch that You own or control and as permitted by the Usage Rules set forth in the App Store Terms of Service. Your use of the Welkin mobile App must comply with the App Store Terms of Service. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Welkin mobile App. In the event of any failure of the Welkin mobile App to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price, if any, for the Welkin mobile App to you; to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Welkin mobile App, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be solely governed by these Terms. You and the Company acknowledge that Apple is not responsible for addressing any claims of you or any third party relating to the Welkin mobile App or your possession and/or use of the Welkin mobile App, including, but not limited to: (i) product liability claims; (ii) any claim that the app fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. You and the Company acknowledge that, in the event of any third party claim that the Welkin mobile App or your possession and use of that app infringes that third party’s intellectual property rights, the Company, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms. You must comply with applicable third party terms of agreement when using the Welkin mobile App. You and the Company acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms as they relate to your use of the Welkin mobile App, and that, upon your acceptance of the Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third party beneficiary thereof. You hereby represent and warrant that (i) You are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) You are not listed on any U.S. Government list of prohibited or restricted parties. You acknowledge that you have reviewed the App Store Terms of Service (located online at apple terms). Capitalized terms not defined herein shall have the meanings set forth in the App Store Terms of Service.
Company shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond Company’s reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation (including “line-noise” interference). These Terms are personal to you, and are not assignable, transferable or sublicensable by you except with Company’s prior written consent. Company may assign, transfer or delegate any of its rights and obligations hereunder without consent. Our licensors may be entitled to enforce this agreement as third-party beneficiaries. there are no other third-party beneficiaries to these terms except as expressly stated in these Terms or, if applicable, a party to an applicable Benefit Agreement. No agency, partnership, joint venture, or employment relationship is created as a result of these Terms and neither party has any authority of any kind to bind the other in any respect. In any action or proceeding to enforce rights under these Terms, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under these Terms will be in writing and will be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service.
No delay or omission by Company to exercise any right or power occurring upon any noncompliance or default by you with respect to any of the terms of these Terms shall impair any such right or power or be construed to be a waiver thereof. Any waiver by Company of any covenant, condition, or agreement to be performed by you shall not be deemed to be a waiver of any prior or subsequent breach of the same, or of any other covenant, condition, or agreement hereunder. Unless stated otherwise, all remedies provided for these Terms shall be cumulative and in addition to and not in lieu of any other remedies available to either party at law, in equity, or otherwise.
While accessing the Site via your mobile device, please be aware that your carrier’s normal rates and fees will apply.
22. Copyright and Trademark Notices.
Unless otherwise indicated, these Terms and all Content provided by Company are copyright © 2013 Welkin Health, Inc. All rights reserved.
Welkin Health is a trademark of Company. Welkin Health graphics, logos, designs, page headers, button icons, scripts and service names are the trademarks, service marks or trade dress of Company in the U.S. and other countries. You may not reproduce or use Company’s trademarks, service marks or trade dress without the prior written permission of Company. The names of actual companies and products mentioned at the Sites may be the trademarks of their respective owners.
23. Digital Millennium Copyright Act Notice.
Company has adopted the following general policy toward copyright infringement in accordance with the Digital Millennium Copyright Act (see 17 U.S.C. 512). The address of Company’s Designated Agent to Receive Notification of Claimed Infringement (“Designated Agent”) is listed at the end of these Terms.
It is Company’s policy to: (a) block access to or remove Content that it believes in good faith to be copyrighted material that has been illegally copied and distributed by any of our advertisers, affiliates, content providers, members or users; and (b) remove and discontinue service to participants or users who are found repeatedly to provide or post protected third party content without necessary rights and permissions.
A. Procedure for Reporting Copyright Infringements:
If you believe that Content residing on or accessible through the Company Sites or Services infringes a copyright, please send a written notice of copyright infringement containing the following information to the Designated Agent listed below:
- A physical or electronic signature of a person authorized to act on behalf of the owner of the copyright that has been allegedly infringed;
- Identification of works or materials being infringed;
- Identification of the Content that is claimed to be infringing including information regarding the location of the Content that the copyright owner seeks to have removed, with sufficient detail so that Company is capable of finding and verifying its existence;
- Contact information about the notifier including address, telephone number and, if available, e-mail address;
- A statement that the notifier has a good faith belief that the Content is not authorized by the copyright owner, its agent, or the law;
- A statement made under penalty of perjury that the information provided is accurate and the notifying party is authorized to make the complaint on behalf of the copyright owner; and
- the date of the notification.
B. Once Proper Bona Fide Infringement Notification is Received by the Designated Agent:
It is Company’s policy:
- to remove or disable access to the infringing Content;
- to notify the Content provider, member or user that it has removed or disabled access to the Content; and
- that repeat offenders will have the infringing Content removed from the system and that Company will terminate such content provider’s, member’s or user’s access to the Services.
C. Procedure to Supply a Counter-Notice to the Designated Agent:
If the Content provider, member or user believes that the Content that was removed or to which access was disabled is either not infringing, or the Content provider, member or user believes that it has the right to post and use such Content from the copyright owner, the copyright owner’s agent, or pursuant to the law, the content provider, member or user must send a counter-notice containing the following information to the Designated Agent listed below:
- A physical or electronic signature of the Content provider, member or user;
- Identification of the Content that has been removed or to which access has been disabled and the location at which the Content appeared before it was removed or disabled;
- A statement that the Content provider, member or user has a good faith belief that the Content was removed or disabled as a result of mistake or a misidentification of the Content; and
- Content provider’s, member’s or user’s name, address, telephone number, and, if available, e-mail address and a statement that such person or entity consents to the jurisdiction of the Federal Court for the judicial district in which the content provider’s, member’s or user’s address is located, or if the Content provider’s, member’s or user’s address is located outside the United States, for any judicial district in which Company is located, and that such person or entity will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by the Designated Agent, Company’s may send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed Content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the Content provider, member or user, the removed Content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at Company’s discretion.
Please contact Company’s Designated Agent to Receive Notification of Claimed Infringement at the following address:
Designated Agent to Receive Notification of Claimed Infringement:
Chase Hensel, 3265 17th Street #304, San Francisco, CA 94110 firstname.lastname@example.org (415) 967-2483
You may contact Company at the following address: Welkin Health, Inc. 3265 17th Street #304, San Francisco, CA 94110 email@example.com