Wellfit’s Terms of Service
THESE TERMS OF USE (THE “GENERAL TERMS”) INCLUDE A CLASS ACTION WAIVER AND A WAIVER OF JURY TRIALS, AND REQUIRE BINDING ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES RELATING IN ANY WAY TO YOUR USE OF THE WEBSITE OR SERVICES (EACH AS DEFINED BELOW). THE GENERAL TERMS LIMIT THE REMEDIES THAT MAY BE AVAILABLE TO YOU IN THE EVENT OF A DISPUTE. BY ENTERING INTO THESE GENERAL TERMS, YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW. PLEASE SEE SECTION 11(f) BELOW FOR MORE INFORMATION REGARDING ARBITRATION AND HOW IT DIFFERS FROM A PROCEEDING IN A COURT OF LAW.
ANY DISPUTE OR CLAIM RELATING IN ANY WAY TO YOUR USE OF THE WEBSITE OR SERVICES WILL BE GOVERNED AND INTERPRETED UNDER THE LAWS OF THE STATE OF CALIFORNIA, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS DOES NOT APPLY TO THESE TERMS.
THE GENERAL TERMS LIMIT THE REMEDIES THAT MAY BE AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
These General Terms are a legal agreement between you (“you, “your”) and Wellfit Technologies, Inc. (collectively, the “Company”, “we”, “our” or “us”) and governs your use of our online portal, online bill pay, and/or mobile applications (each, an “Application” and the services available therein the “Services”). The Services enable patients (each, a “Member”) and general users of our online bill pay (each, a “Bill Pay User”) to pay for dental services in accordance with the treatment summary determined by their provider of dental services (each, a “Dental Provider”) and approved by the Member or Bill Pay User. If applicable, the Member’s or Bill Pay User’s share of payment will be determined in accordance with the terms of their dental discount plan or a dental benefit plan offered by their employer (each, a “Plan”). Through the Services, the Dental Providers whose dental practices (“Sub-Merchants”) have been approved by a Plan, if applicable, and the Company, may submit treatment summaries and costs to Members. Members then pay the Sub-Merchant for the Dental Provider’s services through approved payment sources linked to the Member’s Account. Sub-Merchants and/or Dental Providers may also identify certain individuals to have administrative or other practice user responsibilities (“Practice Users”). Bill Pay Users, Dental Providers, Members, Practice Users and any other individuals who use the Services are each referred to as a “User” for the purposes of the General Terms. The following General Terms apply to all Users. By using any of the Services, you agree to these General Terms and any policies referenced within, including terms that limit our liability (see Section 8) and require arbitration (see Section 11.1). You also agree to any additional terms specific to the Services you use, such as those listed below, which become part of your agreement with us. You should read all of our terms carefully. YOU ACKNOWLEDGE THAT THE COMPANY DOES NOT PERFORM ANY DENTAL SERVICES OR FUNCTION AS A DENTAL OFFICE.
· Sub-Merchant Supplemental Terms. If you are the owner or officer of a Sub-Merchant, your use of the Services is also subject to the Sub-Merchant Supplemental Terms (“Sub-Merchant Supplemental Terms”).
· Dental Provider Supplemental Terms. If you are a Dental Provider, your use of the Services is also subject to the Dental Provider Supplemental Terms (“Dental Provider Supplemental Terms”).
· Member Supplemental Terms. If you are a Member, your use of the Services is also subject to the Member Terms (the “Member Terms”).
· Bill Pay User Supplemental Terms. If you are a Bill Pay User, your use of the Services is also subject to the Bill Pay User Terms (“Bill Pay User Terms”).
· Privacy Policy. You acknowledge and agree that the rights and obligations of all Users of and about the personal information of Users collected, used and disclosed by the Company in connection with the Services, is governed by the Company’s Privacy Policy.
If the General Terms are inconsistent with the Supplemental Terms, the Supplemental Terms shall control. The General Terms and any applicable Supplemental Terms are referred to herein as the “Terms.”
PLEASE READ THESE GENERAL TERMS CAREFULLY. BY CLICKING ON THE “I ACCEPT” BUTTON, COMPLETING THE REGISTRATION PROCESS, AND/OR DOWNLOADING OR USING THE COMPANY’S SERVICES AND/OR ANY APPLICATION, YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THE TERMS OF USE, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH THE COMPANY, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THE TERMS OF USE PERSONALLY OR ON BEHALF OF THE COMPANY YOU HAVE NAMED AS THE USER, AND TO BIND THAT COMPANY TO THE TERMS OF USE. THE TERM “YOU” REFERS TO THE INDIVIDUAL OR LEGAL ENTITY, AS APPLICABLE, IDENTIFIED AS THE USER WHEN YOU REGISTERED TO USE THE SERVICES. IF YOU DO NOT AGREE TO BE BOUND BY THE GENERAL TERMS, YOU MAY NOT ACCESS OR USE THE SERVICES. If you are an owner or officer of an employer offering an employer-sponsored Plan (“Employer”), any written and pen-signed agreement you have entered into with the Company regarding the subject matter hereof will supersede these Terms to the extent of any direct conflict.
PLEASE NOTE THAT The Terms are subject to change by THE Company in its sole discretion at any time. When changes are made, the Company will make a new copy of the General Terms available within the online portal or the online bill pay and any new Supplemental Terms will be made available from within, or through, the affected Service within the online portal or the online bill pay. We will also update the “Last Updated” date at the top of the General Terms. You acknowledge that the Company will not provide prior notice to the extent a change in terms or conditions is necessary to maintain or restore the security of an EFT or other system or account; provided, however, to the extent any change is permanent, notice will be given in accordance herewith. Any changes to the Terms will be effective immediately for new users of the Services and all Bill Pay Users and will be effective thirty (30) days after posting notice of such changes on the online portal for existing users, provided that any material changes shall be effective for users who have an Account with us upon the earlier of thirty (30) days after posting notice of such changes on the online portal or thirty (30) days after dispatch of an e-mail notice of such changes to Registered Users (defined in Section 1.1 below). The Company may require you to provide consent to the updated Terms in a specified manner before further use of the Services is permitted. If you do not agree to any change(s) after receiving a notice of such change(s), you shall stop using the Services. Otherwise, your continued use of the Services constitutes your acceptance of such change(s). PLEASE REGULARLY CHECK THE APPLICATION(S) TO VIEW THE THEN-CURRENT TERMS.
1. Accounts
1.1 Account Creation. In order to access certain features of the Services you are required to become a Registered User. For purposes of the Terms, a “Registered User” is a User who has registered an account (“Account”).
1.2 Registration Data. In registering for the Services, you agree to (1) provide true, accurate, current and complete information about yourself as prompted by the Service registration form (the “Registration Data”); and (2) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You represent that you are (i) at least eighteen years of age; and (ii) not a person barred from using the Services under the laws of the United States, your place of residence or any other applicable jurisdiction. You understand that the information you provide may be used by us to verify your identity as required by federal law. You are responsible for all activities that occur under your Account. If you provide any information that is untrue, inaccurate, not current or incomplete, or the Company has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, the Company has the right to suspend or terminate your Account and refuse any and all current or future use of the Services (or any portion thereof). You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself or your dependents under eighteen years of age. You agree that you shall not have more than one Account per platform at any given time. The Company reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third party that a username violates the third party’s rights. You agree not to create an Account or use the Services if you have been previously removed by the Company, or if you have been previously banned from any of the Services.
2. Use of the Applications. The Services are protected by copyright laws throughout the world.
2.1 Right to Use. Subject to your compliance with the Terms, the Company extends you the right to use the Services on a limited non-exclusive, non-transferable, revocable basis.
2.2 Certain Restrictions. The rights granted to you in the Terms are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the Services or any portion of the Services, (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other application, online portal or online bill pay (including images, text, page layout or form) of the Company; (c) you shall not use any metatags or other “hidden text” using the Company’s name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Services except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from the Services; (f) you shall not access the Services in order to build a similar or competitive website, application or service; (g) except as expressly stated herein, no part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (h) you shall not alter, remove or destroy any copyright notices or other proprietary markings contained on or in the Services. Any future release, update or other addition to the Services shall be subject to the Terms. The Company, its suppliers and service providers reserve all rights not granted in the Terms. Any unauthorized use of the Services terminates the rights granted by the Company pursuant to the Terms.
2.3 Data. You acknowledge that all personal information collected, used, processed and shared by the Company will be performed in accordance with the Company’s Privacy Policy. You further acknowledge and agree that the Company may use any data or other information uploaded or made available by you, for the purpose of providing the Services to you and other Users; provided, however, that the Company may use and disclose any such data or information on an aggregated and anonymized basis for any purpose whatsoever and without any further compensation to you.
2.4 Updates. You understand that the Services are evolving. As a result, the Company may require you to accept updates to the Services and any application that you have installed on your computer or mobile device. You acknowledge and agree that the Company may update the Services and any application with or without notifying you. You may need to update third-party software from time to time in order to use the Services.
3. Ownership
3.1 Services. You agree that the Company and its suppliers own all rights, title and interest in the Services. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services.
3.2 Your Account. Notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in your Account, and you further acknowledge and agree that all rights in and to your Account are and shall forever be owned by and inure to the benefit of the Company.
3.3 Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to the Company through its suggestion, feedback, wiki, forum or similar pages (“Feedback”) is at your own risk and that the Company has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to the Company a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of the Services.
4. User Conduct. You agree that you will not, under any circumstances:
4.1 Use cheats, exploits, automation software, bots, hacks, mods or any unauthorized software designed to modify or interfere with the Services;
4.2 Interfere with or damage the Services, including, without limitation, through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial-of-service attacks, packet or IP spoofing, forged routing or electronic mail address information, or similar methods or technology;
4.3 Modify or cause to be modified any files that are a part of the Services;
4.4 Disrupt, overburden, or aid or assist in the disruption or overburdening of: (i) any computer or server used to offer or support the Services; or (ii) the enjoyment of the Services by any other person;
4.5 Disrupt or interfere with the security of, or otherwise cause harm to, the Services, systems, resources, accounts, passwords, servers or networks connected to or accessible through the Services or any affiliated or linked sites;
4.6 Avoid, bypass, remove, deactivate, impair, descramble, or otherwise circumvent any technological measure implemented by the Company or any of the Company’s providers or any other third party (including another User) to protect the Services;
4.7 Transmit any information to Company or via the Services that: (i) you do not have the right to transmit, under any law or contract; (ii) infringe any copyright, trademark, patent or other intellectual property right of any third party; or (iii) constitute unsolicited or unauthorized promotional material, spam, chain letters or pyramid schemes;
4.8 Link to the Services from any pornographic, obscene, profane, defamatory, libelous, threatening, unlawful website, or any other website containing material which could be considered unlawful or might give rise to unlawful conduct; or
4.9 Otherwise use the Services in connection with any violation of law or contract.
5. Reserved.
6. Indemnification. You agree to indemnify and hold the Company, its parents, subsidiaries, affiliates, officers, employees, agents, partners and licensors (collectively, the “Company Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of: (a) your violation of the Terms; (b) your violation of any rights of another party, including any Users; (c) any disputes between you and your Dental Provider or other third parties in connection with your use of the Services, including but not limited to information you submit in the course of using the Services; or (d) your violation of any applicable laws, rules or regulations. The Company reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with the Company in asserting any available defenses. You agree that the provisions in this section will survive any termination of your Account, the Terms or your access to the Services. This provision does not require you to indemnify any of the Company Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Services.
7. Disclaimers
THE SERVICES ARE PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS, AND THE COMPANY (AND OUR SUPPLIERS) EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ALL WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT. WE (AND OUR SUPPLIERS) MAKE NO WARRANTY THAT THE APPLICATIONS (IF ANY) OR SERVICES WILL MEET YOUR REQUIREMENTS, WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS, OR WILL BE ACCURATE, RELIABLE, FREE OF VIRUSES OR OTHER HARMFUL CODE, COMPLETE, LEGAL, OR SAFE. IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE APPLICATIONS (IF ANY) AND SERVICES, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF FIRST USE.
8. Limitation on Liability
8.1 Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL THE COMPANY PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE APPLICATIONS (IF ANY) OR SERVICES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER OR NOT THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE TERMS, OR FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE APPLICATIONS (IF ANY) OR SERVICES, ON ANY THEORY OF LIABILITY, RESULTING FROM: (1) THE USE OR INABILITY TO USE THE APPLICATIONS (IF ANY) OR SERVICES; (2) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH THE APPLICATIONS (IF ANY) OR SERVICES; (3) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (4) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE APPLICATIONS (IF ANY) OR SERVICES; OR (5) ANY OTHER MATTER RELATED TO THE APPLICATIONS (IF ANY) OR SERVICES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY.
8.2 Cap on Liability. UNDER NO CIRCUMSTANCES WILL THE COMPANY PARTIES BE LIABLE TO YOU FOR MORE THAN FIFTY DOLLARS ($50).
8.3 Third Party Content. THE COMPANY PARTIES ASSUME NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY CONTENT (INCLUDING, BUT NOT LIMITED TO, THIRD PARTY CONTENT AVAILABLE VIA THE SERVICES).
8.4 Exclusions. NOTWITHSTANDING THE FOREGOING, THE COMPANY DOES NOT IN ANY WAY SEEK TO EXCLUDE OR LIMIT LIABILITY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY THE COMPANY PARTY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY A COMPANY PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
8.5 Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN THE COMPANY AND YOU.
9. Term. The Terms commence on the date when you accept them (as described in the preamble above) and remain in full force and effect while you use the Services, unless terminated earlier in accordance with the Terms.
9.1 Termination of Employer Agreement. As a User who is a Member of an employer-sponsored Plan, you acknowledge and agree that your access and use of the Services is provided pursuant to an agreement between the Company and the Employer (a “Employer Agreement”). In the event the Employer Agreement is terminated at any time, the Company may elect either that (i) these Terms immediately terminate, or (ii) the Member’s use of the Services is no longer subject to the Plan associated with the Member’s former Employer, and any discounts or other benefits provided in such Plan.
9.2 Termination of Plan Agreement. As a User who is a Member of a Plan, you acknowledge and agree that your access and use of the Services is provided pursuant to an agreement between the Company or a Sub-Merchant and the Plan (a “Plan Agreement”). In the event the Plan Agreement is terminated at any time, the Company may elect either that (i) these Terms immediately terminate, or (ii) the Member’s use of the Services is no longer subject to such Plan and any discounts or other benefits provided therein.
9.3 Termination of Terms by the Company. The Company may at any time and for any reason immediately and without notice, suspend or terminate these Terms, including if you have materially breached any provision of the Terms, or if the Company is required to do so by law (e.g., where the provision of the Services is, or becomes, unlawful), the Company has the right to. You agree that all terminations for cause shall be made in the Company’s sole discretion and that the Company shall not be liable to you or any third party for any termination of your Account.
9.4 Termination of Terms by You. If you want to terminate the Terms provided by the Company, you may do so by (a) notifying the Company at any time and (b) closing your Account that you use, if any. Your notice should be sent, in writing, to the Company’s address set forth below. The Company disclaims any responsibility as to the impact your termination of the Terms has on your Employer or Plan relationship or agreement.
9.5 Effect of Termination. Termination of these Terms includes removal of access to the Services and barring of further use of the Services. Termination of these Terms also includes deletion of your password and all related information, files and Content associated with or inside your Account (or any part thereof), if any. All provisions of the Terms which by their nature should survive, shall survive termination of the Terms, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
10. Remedies
10.1 Violations. If the Company becomes aware of any possible violations by you of the Terms, the Company reserves the right to investigate such violations. If, as a result of the investigation, the Company believes that criminal activity has occurred, the Company reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. The Company is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in the Services, in the Company’s possession in connection with your use of the Services, to (1) comply with applicable laws, legal process or governmental request; (2) enforce the Terms, (3) respond to your requests for customer service, or (4) protect the rights, property or personal safety of the Company, its Users or the public, and all enforcement or other government officials, as the Company in its sole discretion believes to be necessary or appropriate.
10.2 Breach. In the event that the Company determines, in its sole discretion, that you have breached any portion of the Terms, or have otherwise demonstrated conduct inappropriate for the Services, the Company reserves the right to:
(a) Warn you via e-mail (to any e-mail address you have provided to the Company) that you have violated the Terms;
(b) Notify and/or send content to and/or fully cooperate with the proper law enforcement authorities for further action; and/or
(c) Pursue any other action which the Company deems to be appropriate.
10.3 No Subsequent Registration. If your registration(s) with or ability to access the Services is discontinued by the Company due to your violation of any portion of the Terms or for conduct otherwise inappropriate for the community, then you agree that you shall not attempt to re-register with or access the Services or any Company community through use of a different member name or otherwise. In the event that you violate the immediately preceding sentence, the Company reserves the right, in its sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to you.
11. General
11.1 Dispute Resolution. Please read this Arbitration Agreement carefully. It is part of your contract with the Company and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
(a) Applicability of Arbitration Agreement. All claims and disputes (excluding claims for injunctive or other equitable relief as set forth below) in connection with the Terms or the use of any product or service provided by the Company that cannot be resolved informally or in small claims court shall be resolved by binding arbitration on an individual basis under the terms of this Arbitration Agreement. Notwithstanding the foregoing, however, you agree that you will not bring a class action claim in small claims court. Unless otherwise agreed to, all arbitration proceedings shall be held in English. This Arbitration Agreement applies to you and the Company, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or goods provided under the Terms.
(b) Notice Requirement and Informal Dispute Resolution. Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute (“Notice”) describing the nature and basis of the claim or dispute, and the requested relief. A Notice to the Company should be sent to: 433 E. Las Colinas Blvd., Suite 900, Irving TX 75039; Attention: Legal Department. After the Notice is received, you and the Company may attempt to resolve the claim or dispute informally. If you and the Company do not resolve the claim or dispute within thirty (30) days after the Notice is received, either party may begin an arbitration proceeding. The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.
(c) Arbitration Rules. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to our registered agent: National Registered Agents, Inc. of NV, 701 S. Carson Street, Suite 200, Carson City, NV 89701. Arbitration shall be initiated through the American Arbitration Association (“AAA”), an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section. If AAA is not available to arbitrate, the parties shall agree to select an alternative ADR Provider. The rules of the ADR Provider shall govern all aspects of the arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with the Terms. The AAA Consumer Arbitration Rules (“Arbitration Rules”) governing the arbitration are available online at www.adr.org or by calling the AAA at 1-800-778-7879. The arbitration shall be conducted by a single, neutral arbitrator. Any claims or disputes where the total amount of the award sought is less than Ten Thousand U.S. Dollars (US $10,000.00) may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount of the award sought is Ten Thousand U.S. Dollars (US $10,000.00) or more, the right to a hearing will be determined by the Arbitration Rules. Any hearing will be held in Orange County, California, and unless the parties agree otherwise. If you reside outside of the U.S., the arbitrator shall give the parties reasonable notice of the date, time and place of any oral hearings. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. If you initiate an arbitration in which you seek less than $500 in damages and comply with the Terms, including the Notice Requirement, the Company shall reimburse you for your AAA filing fee, and shall pay all administration and arbitrator fees up to a total amount of $500. If the Arbitrator grants you an award, the Company will reimburse your attorneys’ fees.
(d) Additional Rules for Non-Appearance Based Arbitration. If non-appearance based arbitration is elected, the arbitration shall be conducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise agreed by the parties.
(e) Authority of Arbitrator. If arbitration is initiated, the arbitrator will decide the rights and liabilities, if any, of you and the Company, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages, and to grant any non-monetary remedy or relief available to an individual under applicable law, the AAA Rules, and the Terms. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and the Company.
(f) Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in a court and are subject to very limited review by a court. In the event any litigation should arise between you and the Company in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND THE COMPANY WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.
(g) Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If, however, this waiver of class or consolidated actions is deemed invalid or unenforceable with respect to a particular claim or dispute, then notwithstanding anything to the contrary in this Arbitration Agreement or Terms, neither you or the Company is entitled to arbitration of such claim or dispute. Instead, all such claims and disputes will then be resolved in a court as set forth in Section 11(m).
(h) Confidentiality. All aspects of the arbitration proceeding, including but not limited to the award of the arbitrator and compliance therewith, shall be strictly confidential. The parties agree to maintain confidentiality unless otherwise required by law. This paragraph shall not prevent a party from submitting to a court of law any information necessary to enforce this Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.
(i) Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Agreement shall continue in full force and effect.
(j) Right to Waive. Any or all of the rights and limitations set forth in this Arbitration Agreement may be waived by the party against whom the claim is asserted. Such waiver shall not waive or affect any other portion of this Arbitration Agreement.
(k) Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with the Company.
(l) Small Claims Court. Notwithstanding the foregoing, either you or the Company may bring an individual action in small claims court.
(m) Courts. In any circumstances where the foregoing Arbitration Agreement permits the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the courts located within Orange County, California, for such purpose.
11.2 Consumer Complaints. In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
11.3 Electronic Communications; Phone Calls; Electronic Signature; Access.
(a) Electronic Communications; Phone Calls; Electronic Signature. The communications between you and the Company use electronic means, whether you use the Services/web portal or send us emails or text (SMS) messages, or whether the Company posts notices on the Services/web portal or communicates with you via email or text (SMS) messages. The communications between you and the Company may also be accomplished via phone calls. Communications include transactional information such as (1) agreements and policies required to use the Services, (e.g., these General Terms and the Privacy Policy), (2) payment and treatment summary authorizations and transaction receipts or confirmations and (3) account statements, history or feedback requests by the Company or its affiliates and customer service. For contractual purposes, you (a) consent to receive communications from the Company in an electronic form, including e-mails to the e-mail address you provided in your Account, or phone calls or text (SMS) messages to the wireless number you provided in your Account; (b) acknowledge that the Services will require the usage of a web browser, (c) understand and agree that you may be charged for such calls or text (SMS) messages by your wireless carrier, and that such calls may be generated by an automated dialing system; (d) consent to the use of electronic signatures in our relationship and communications with you, (e) agree that your electronic signature will be enforceable as and to the full extent of a hand-written signature as an original for enforcement/enforceability of the underlying communication or documentation containing the electronic signature(s), whether in court (state or federal), arbitration or otherwise, and (f) agree that all terms and conditions, agreements, notices, disclosures, and other communications that the Company provides to you electronically satisfy any legal requirement that such communications would satisfy if it were be in a hardcopy writing. The consent provided herein applies to all transactions, electronic signatures and communications from the Company and through the Services/web portal.
(b) Network Access and Devices. You are responsible for obtaining the data network access necessary to use the Services. Your mobile network’s data and messaging rates and fees may apply if you access or use the Services from a wireless-enabled device. You are responsible for acquiring and updating compatible hardware or devices necessary to access and use the Services and any updates thereto. The Company does not guarantee that the Services, or any portion thereof, will function on any particular hardware or devices. In addition, the Services may be subject to malfunctions and delays inherent in the use of the Internet and electronic communications.
(c) Retracting Consent. The foregoing does not affect your non-waivable rights. Your consent provided in Section 11.3(a) is not a condition to use of the Services. At any time, you may request from us a paper copy of any record provided or made available electronically to you by us. For such copies, as long as you are an authorized User, you will have the ability to download and print any documents we send to you through your Account for a limited period of time (usually 30 days) after such documents were first sent to you. After such time, if you wish for us to send you paper copies of any such documents to you, you will be charged a $1.00 per page fee. You may request delivery of such paper copies from us by contacting us at: support@wellfit.com or (855) 493-5534. If you decide to receive communications from us electronically or agree to the use of electronic signature, you may at any time change your mind and tell us that thereafter you want to receive required notices and disclosures only in paper format. If you elect to receive communications only in paper format, you acknowledge that it will slow the speed at which we can complete certain steps in transactions with you and delivering Services to you. Your consent to electronic e-mail communications and signature may be withdrawn by contacting us at: support@wellfit.com or (855) 493-5534. You may opt out of receiving communications via SMS text or phone by updating your Account preferences. You acknowledge that opting out of receiving text (SMS) messages may impact your use of the Services.
11.4 Release. You hereby release the Company Parties and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from your use of the Applications, including but not limited to, any interactions with or conduct of other Users or third-party websites of any kind arising in connection with or as a result of the Terms or your use of the Services. If you are a California resident, you hereby waive 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 favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.” The foregoing release does not apply to any claims, demands, or any losses, damages, rights and actions of any kind, including personal injuries, death or property damage for any unconscionable commercial practice by a Company Party or for such party’s fraud, deception, false, promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Services.
11.5 Assignment. The Terms, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without the Company’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. The Company may freely assign these Terms as needed.
11.6 Force Majeure. The Company shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
11.7 Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to the Services, please contact us at: support@wellfit.com or (855) 493-5534. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
11.8 Governing Law. The Terms and any action related thereto will be governed and interpreted by and under the laws of the State of California, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
11.9 Notice. Where the Company requires that you provide an e-mail address, you are responsible for providing the Company with your most current e-mail address. In the event that the last e-mail address you provided to the Company is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Terms, the Company’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to the Company at the following address: 433 E. Las Colinas Blvd., Suite 900, Irving TX 75039, Attention: Wellfit Technologies, Inc, with a copy to: Wellfit Legal Department, 433 E. Las Colinas Blvd., Suite 900, Irving TX 75039. Such notice shall be deemed given when received by the Company by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
11.10 Waiver. Any waiver or failure to enforce any provision of the Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
11.11 Severability. If any provision of the Terms is, for any reason, held to be invalid or unenforceable, the other provisions of the Terms will remain enforceable, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
11.12 Export Control. You may not use, export, import, or transfer the Services except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the Services, and any other applicable laws. In particular, but without limitation, the Services may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the Services, you 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 also will not use the Services for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by the Company are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer the Company products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
11.13 Entire Agreement. The Terms are the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.
