END USER LICENSE AGREEMENT UPDATED – 12.19.2019
This End User License Agreement (this “Agreement”) is a legal agreement between you (as an individual) and Wellbeats, Inc. (“Wellbeats”). This Agreement governs your use of our mobile application and all training and video content accessed through the mobile application (the “App”). By downloading the App and continuing to use the App, you are assenting to this Agreement.
By downloading, installing or using the App, you agree to the terms and conditions of this Agreement. If you do not agree to these terms, do not download, install or use Wellbeats’ App. This Agreement is between you and Wellbeats only. Wellbeats is solely responsible for the App. Apple, Inc., Google, Inc. or Microsoft Corporation is not a party to this Agreement; however, Apple, Inc., Google, Inc. or Microsoft Corporation and its subsidiaries are third party beneficiaries of this Agreement. As such, once you accept this Agreement, Apple, Inc., Google, Inc. or Microsoft Corporation shall have the right (and will be deemed to have accepted the right) to enforce this Agreement against you.
1. License. Subject to the terms and conditions of this Agreement, Wellbeats grants to you a limited term, non-exclusive, non-transferable license to access and use the proprietary App. This Agreement applies to updates or supplements to the original version of the App provided by Wellbeats, unless we provide other terms along with the update or supplement. Upon termination of this Agreement by Wellbeats, for any reason, your access to the App may be terminated. The App is only licensed for your use for the purposes for which you are authorized and on the devices for which you are authorized to administer. You may uninstall the App at any time and with no limitations by using the standard uninstall procedures offered with your computer’s operating system or your internet browser.
2. Restrictions on Use. You may not: (a) modify the App or any portion thereof; (b) reverse engineer, disassemble, decompile the App (or any element thereof) or otherwise attempt to discover the source code or structure, sequence and organization of the App or any element thereof (except to the extent reverse engineering restrictions are expressly prohibited by applicable local law, and then only to the extent so prohibited or controlled; (c) make copies, redistribute or sell the App; (d) remove, alter or obscure any trademark, copyright, confidentiality, proprietary or other notices or legends contained on or within the App (or any copy or portion thereof); (e) access the App via any means other than through authorized distributor platforms; (f) transmit content that is, without limitation: unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, or fraudulent; invasive of another’s privacy; is tortious; (g) propagate software that contains viruses or any other computer code, files or programs that interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment, or otherwise permit the unauthorized use of a computer or computer network; (h) engage in any activity that otherwise interferes with the use and enjoyment of the App by others, including without limitation: using the App in any way that may damage, disable, overburden, or impair our servers or networks; or transmitting, directly or indirectly, any unsolicited bulk communications (including e-mails and instant messages). Use of the App for commercial streaming or any streaming of App content outside your personal use and use under the terms of this Agreement is strictly prohibited.
3. Ownership. Wellbeats is the exclusive owner of all right, title and interest to and in the App and all content and services offered through the App; including, without limitation, any and all patents, copyrights, trademarks, service marks, trade secrets and any other proprietary rights related to the App or its content. The license to use the App does not grant you any right to use the trademarks, service marks or logos of Wellbeats or its licensors.
4. Term. This Agreement shall continue unless terminated by you (by uninstalling the App and discontinuing all use of Wellbeats’ services) or by us. Wellbeats may terminate this Agreement if you breach any term in this Agreement or if Wellbeats no longer contracts with an entity providing you the App. All provisions in this Agreement relating to “Restrictions on Use,” “Ownership,” “Confidentiality,” “Warranty and Warranty Disclaimer,” and “Limitation of Liability” survive the termination of this Agreement.
6. Warranty and Warranty Disclaimer. THE APP IS PROVIDED “AS IS. ALL WARRANTIES, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, ARE EXPRESSLY DISCLAIMED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WELLBEATS EXPRESSLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES THAT (I) THE APP OR ITS CONTENT WILL OPERATE IN AN ERROR FREE OR UNINTERRUPTED MANNER; (II) THE APP WILL BE FREE OF VIRUSES OR OTHER HARMFUL ELEMENTS; (III) THE APP OR SERVICES WILL SATISFY THE END USER’S REQUIREMENTS; (IV) THE APP IS COMPATIBLE WITH SYSTEMS, PRODUCTS, OR SERVICES PROVIDED BY THIRD PARTY PERSONS OR ORGANIZATIONS; (V) THE RESULTS OBTAINED FROM THE USE OF THE APP OR SERVICES WILL BE EFFECTIVE, ACCURATE, OR RELIABLE; (VI) THE APP OR SERVICES WILL PREVENT THE UNAUTHORIZED DISCLOSURE OF, UNAUTHORIZED USE OF, UNAUTHORIZED ACCESS TO, MISAPPROPRIATION OF, LOSS OF, OR ALTERATION OF ANY DATA OR INFORMATION; OR (VII) ANY ERRORS OR DEFECTS IN THE APP OR SERVICES WILL BE CORRECTED. WELLBEATS is not responsible for any interruption in services or unavailability of the App resulting from internet failures, your inability to access the internet, or inadequate bandwidth in your internet connection. Certain state laws do not allow limitations on implied warranties or the exclusion or limitation of certain damages. If these laws apply to you, some or all of the disclaimers, exclusions, or limitations in this Agreement may not apply to you and you might have additional rights.
7. Limitation of Liability. THIS APP IS BEING PROVIDED TO YOU FREE OF CHARGE. ACCORDINGLY, YOU AGREE THAT WELLBEATS, ITS DISTRIBUTORS OR CLIENTS (AS APPLICABLE), WILL HAVE NO LIABILITY IN CONNECTION WITH OR ARISING FROM YOUR USE OF THE APP. YOUR ONLY RIGHT OR REMEDY WITH RESPECT TO ANY PROBLEMS OR DISSATISFACTION WITH THE APP IS TO UNINSTALL AND DISCONTINUE USE OF THE APP. IN NO EVENT WILL WELLBEATS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL OR CONTINGENT DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS. THIS NON-LIABILITY FOR DAMAGES APPLIES WHETHER IN AN ACTION BASED ON CONTRACT, TORT OR ANY OTHER SUCH THEORY, EVEN IF WELLBEATS HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8. Indemnification. You will indemnify and defend Wellbeats, its distributors and clients, as well as each of their respective directors, officers, employees, representatives and agents from and against, any and all claims, losses, damages and expenses, including attorney fees, arising from a third party claim against Wellbeats, its distributors and clients, as well as each of their respective representatives, to the extent that such third party claim is based on your breach of this Agreement or your negligence or other acts, or by your agents or representatives.
9. Infringement Claims. You acknowledge that, in the event of any third party claim that the App or your possession and use of the App infringes that third party’s intellectual property rights, Wellbeats, and not Apple, Inc., Google, Inc. or Microsoft Corporation, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
10. General. This Agreement contains the entire agreement and understanding of the parties concerning the subject matter of this Agreement. The waiver of any breach or default under this Agreement does not constitute the waiver of any subsequent breach or default. If any provision of this Agreement is held to be illegal or unenforceable, it shall be deemed amended to conform to applicable laws or regulations, or, if it cannot be so amended without materially altering the intention of the parties, it shall be stricken and the remainder of this Agreement shall continue in full force and effect. The parties agree that any legal action arising under or relating to this Agreement must be maintained in the state and federal courts located in Hennepin County, Minnesota. The laws of the State of Minnesota govern this Agreement, excluding the body of laws concerning conflict of laws.
11. Contact. For questions, complaints or claims regarding the App, you should contact Wellbeats as follows:
1660 South Hwy 100, Suite 590
St. Louis Park, MN 55416