Wellbeats Terms and Conditions

Last Updated:  September 1st, 2021

By using any of the Wellbeats™ (“we,” “us” “our” or “Wellbeats”) Content you agree to these Terms & Conditions.

Wellbeats Terms and Conditions

 

  1. DEFINITIONS
    1. Actual Launch Date: Is the date when access to the Content is turned on and when billing will begin.
    2. Affiliates: Affiliates means any entity controlling, controlled by, or under common control with, Customer, where “control” means direct or indirect ownership or control of at least fifty percent (50%) of the equity or beneficial interest of such entity, or possession, directly or indirectly, of the power to otherwise direct or cause the direction of the management and policies of the subject entity.
    3. Change of Control. “Change of Control” means (i) the sale of all or substantially all of assets; or (ii) a merger, consolidation or similar transaction providing for the acquisition of the direct or indirect ownership of more than fifty percent (50%) of all shares or similar equity interests.
    4. Content: Wellbeats designs, creates, produces and delivers a wide range of health and wellness related videos and other related content.  Wellbeats also provides a range of services including, but not limited to, support, reporting and communications connected with the delivery of the Content.
    5. Eligibility File. This file contains the list of Members that you desire to have access to the Content. If you purchased Wellbeats Member Streaming, you will need to provide Wellbeats an Eligibility File.  If you purchased Wellbeats Onsite, you may or may not need to provide us an Eligibility File.  Details will be mutually agreed to during the implementation process.
    6. Eligibility File Periodicity: If you provide us an Eligibility File, you will need to tell us how often you will send one. Your options include monthly, quarterly or annually.
    7. Initial Term: The Initial Term of this agreement is for twelve (12) months and begins on the Actual Launch Date.
    8. Members: Members are those individuals you include on your Eligibility File who will be provided access to the Content.  Members may also be other individuals who are invited by an existing Member to join Wellbeats.
    9. Renewal Term. Each extension of the Agreement will be a Renewal Term.

 

  1. SERVICES AND SUPPORT.
    1. Wellbeats designs, creates, produces and delivers a wide range of content. Wellbeats also provides a range of related services including, but not limited to, support, reporting and communications connected with the delivery of the content described in the Order.
    2. Wellbeats will provide reasonable support for the Content to you and your Members at no additional charge.
    3. Wellbeats will make the Content available to the Members twenty-four (24) hours a day, seven (7) days a week, except for: (i) planned downtimes that may occur on Wednesdays beginning at 10 P.M. central standard time that can last up to four hours and (ii) any unavailability caused by circumstances beyond the reasonable control of Wellbeats.

 

  1. TERM AND TERMINATION
    1. After the Initial Term, these Terms and Conditions will automatically renew for a twelve (12) month Renewal Term unless you provide written notice of termination to us 30 days in advance of the expiration.
    2. These Terms and Conditions will remain in effect should Wellbeats or you undergo a Change of Control event.

 

  1. PROPRIETARY RIGHTS.
    1. You acknowledge that Wellbeats owns all proprietary rights and copyrights to the Content Services and all artwork, graphics, trademarks, video feed, copyrights and names used in conjunction therewith.  During the term of the Agreement, Wellbeats hereby grants to Customer a worldwide, non-exclusive, royalty-free license to use and display all marketing and communication resources and materials provided by Wellbeats, whether such materials are custom or provided through Wellbeats library of communication materials, including any all artwork, graphics, trademarks, video feed, email templates, banners, copy examples, posters, flyers, trademarks, trade names, designs and logos, copyrights and names contained or used in conjunction therewith (the “Marketing Materials”), solely for internal use in connection with Customer’s marketing of the Content to the Members.
    2. Nothing provided herein shall be construed as an assignment or grant by Wellbeats of any of our rights to you or your Members.
    3. All trademarks, trade names, designs and logos and all associated goodwill existing and arising in the future shall be and remain our property or the property of any third party we licensed with to provide it to you.

 

  1. CONTENT LICENSE.
    1. During the term of the Agreement, Wellbeats grants to you a limited, non-exclusive, non-transferrable, non-perpetual, license to access the Content.
    2. This includes streaming of the Content through an application (“App”) or HTML5 portal (“Website”). During the term of the Agreement, your Members will be able to access the Content via PC, tablet or other mobile device or smart phone.
    3. You may be required to deliver an eligibility file to Wellbeats prior to the Actual Launch Date. Each eligibility file will include the Member details necessary in order for Wellbeats to provide access to the Content. The specific file format will be mutually agreed to by you and us during the implementation process prior to the Actual Launch Date. You may amend the eligible Members at any time by delivering a revised Eligibility File to Wellbeats.
    4. Content may only be used by eligible Members.
    5. You may not broadcast or otherwise use the Content commercially.
    6. Wellbeats reserves all rights to modify, remove or otherwise change any of the content provided through the Content.  Depending on the subscription level of Content purchased, we may, from time to time, update classes or packages available through the Content.  We, in our sole discretion and at any time, may discontinue certain classes or third-party providers of classes available through the Content. Notwithstanding anything to the contrary in this Section 4.e, Wellbeats shall not make any changes or updates to the Content that result in a material degradation or material reduction of the quality, quantity, functionality, performance, availability, or security of the Content.
    7. Additional fitness and other video packages, including content provided by third parties, may be made available by Wellbeats for additional license fees. This additional content will not be provided to your Members and you will not be charged for this content without your prior written agreement.

 

  1. USAGE RESTRICTIONS.  You shall not (and you shall not authorize or permit your Members or third parties associated with you) do any of the following.
    1. Translate, disassemble, decompile, decode, reverse engineer, or cause or allow discovery of the source code of the System.
    2. Remove, obscure, or alter the titles, copyright notices, trademarks, logos, trademark notices, patent notices or other proprietary or restricted rights, notices, affixed to or contained in the System.
    3. Make any claim or representation of ownership or deny or challenge our ownership of the Content.
    4. Use the Content in any manner that violates any local, state, federal or international law, rule, regulation or ordinance.
    5. Use, copy, modify, or prepare derivative works of our Content.
    6. Disclose, demonstrate, distribute, sell, lease, sublicense, lend, give, share, transfer, assign or otherwise make all or any portion of our Content available to any natural person, corporation, or other entity.

 

  1. PAYMENT TERMS.
    1. You will be billed based on the Content you have purchased under one of two methods. Threshold or Per Eligibility Per Month (PEPM) billing.
      1. Threshold billing is based on a fixed monthly fee for a maximum number Members. When the number of Members accessing the Content exceed the maximum number allowed, you will automatically be switched over to the PEPM billing method.
      2. With the Per Eligible Per Month (PEPM) billing method you are charged a set fee for each Member you include in the Eligibility File you send to Wellbeats.
    2. Billing will begin on the Actual Launch Date and payment can be made using Automated Clearing House (ACH) or electronic funds transfer. Contact billing@wellbeats.com for details, required forms or any additional billing related questions.
    3. Fees may be paid either monthly or annually in advance using Automated Clearing House (ACH) or Credit Cards.
      1. If paid annually, you may be subject to an annualized true-up.
      2. True-ups will be invoiced when annualized variances are +/- 5% or $500 whichever is greater. True-Ups are at the sole discretion of Wellbeats and, when applicable, will be based on the Eligibility Files received by Wellbeats.
      3. Payment is due Net 30 days from the date the invoice to you.
      4. Overdue payments on undisputed invoices may be charged interest at the lesser of 1.5% per month or the maximum interest allowed by law.
      5. If you are outside the United States, you must pay in U.S. Dollars either using a credit card or by an Automated Clearing House (ACH) payment. You are responsible for any charges related to exchange rates.
      6. Upon 10 days’ written notice to you for failure to make a payment, we may suspend all Content until payment is made.
      7. If we are required to retain a collection agency or attorney to collect overdue payment, all reasonable collection costs, including attorney fees, are payable by you.
      8. Upon 30 days advance written notice to you and no more than once per calendar year at time of renewal, Wellbeats may increase our fees.
      9. Any suspension, interruption, or unavailability of your Member’s Internet service will not reduce your monthly fee for Content.
      10. You or your Members are responsible for all costs and any other charges or expenses charged by your Internet service provider.
      11. Updates to your contact information due to a Change of Control can be made securely at the following URL: http://bit.ly/Change-of-Ownership
      12. Updates to your payment information can be made securely at the following URL: https://wellbeats.formstack.com/forms/billing_payment_authorization

 

  1. TAXES.
    1. You are responsible to pay any and all foreign, federal, state, municipal, or other government excise, duty, sales, use or occupational taxes or charges now in force or enacted in the future that we may be required to collect or pay for access to the Content provided. This does include any taxes Wellbeats owes based on our own income.
    2. If applicable, we may invoice appropriate amounts for any taxes related to the Content we provide to you, unless you can provide a valid tax exemption certificate authorized by the appropriate taxing authority.

 

  1. COLLECTION AND USE OF MEMBER DATA.
    1. Members will be required to accept the Wellbeats Terms of Service before being allowed to access the Content. The Terms of Service can be found on our web site here: wellbeats.com/Terms-Of-Service
    2. Wellbeats will collect certain information from Members to provide customized Content, including, but not limited to a Member’s first name, last name, email address, user name and password (to set up a registered account for the Content), age, gender, fitness level, fitness goals, and through the continued use of the Content, Wellbeats will collect information on Members’ use of Content, Member’s preferences, activities and log any additional information input by each Member (collectively “Member Data”).
    3. Wellbeats will process and use the Member’s Data for the sole and exclusive purpose of providing the Content and improving the Members experience.  We will: (a) keep and maintain Member information in strict confidence, using such degree of care as is appropriate and consistent with its obligations under applicable law to avoid unauthorized access, use, disclosure, or loss; (b) use and disclose Member Data solely and exclusively for the purpose of providing the Content, such use and disclosure being in accordance with this agreement, and applicable law; and, (c) not use, sell, rent, transfer, distribute, or otherwise disclose or make available Member Data for our own purposes.
    4. Wellbeats may use Member Data in aggregate, non-identifiable form, to evaluate, improve, or otherwise modify the Content.
    5. All information collected from Members will be collected in compliance with Wellbeats’ Privacy Policy at wellbeats.com/privacy and these Terms and Conditions.

 

  1. TECHNOLOGY SECURITY AND BACKUP.
    1. Wellbeats shall implement and maintain appropriate administrative, physical, organizational, and technical safeguards to ensure the protection, confidentiality, security, and integrity of the Content and Member Data.
    2. Wellbeats shall take all reasonable steps to ensure that Member Data is not disclosed, accessed, used, modified, or distributed except to provide the Content to you and your Members.
    3. All Content will be provided through a cloud-based service that has received a recognized independent certification or equivalent independent audit to help ensure the confidentiality, integrity and availability of the Content.
    4. All access and collection of Member Data will be transmitted using approved and recognized encryption methods and all Member Data will be encrypted when in transit and at rest.
    5. Full backups of the Content and Member Data are performed daily, with incremental backups throughout the day. Backups are encrypted and then transferred and stored in real time to an offsite storage facility located within the United States.
    6. No Member Data will be stored outside of the United States.

 

  1. WARRANTIES AND WARRANTY DISCLAIMERS.  We represent and warrant that (a) we will comply with all applicable state or federal laws and regulations regarding the use of the Content Services; (b) we use commercially reasonable best practices to ensure that the Content Services will not contain any viruses, worms, Trojan horses, or other malicious code that permits unauthorized access to devices or equipment; and (c) all professional services performed by Wellbeats shall be performed (i) continuously in a professional, diligent and workmanlike manner, (ii) in accordance with all applicable laws and regulations (including, without limitation, ensuring that Wellbeats personnel have the proper working permits and immigration status), and (iii) in accordance with all reasonable standards of professionalism and best practices as current for the industry, including security practices as deemed practicable and acceptable for prudent security, including those provided by Customer. Wellbeats covenants to Customer that all work provided under the agreement, including the Marketing Materials and any other deliverables (x) is free and clear of all encumbrances, including security interests, liens, charges or other restrictions and (y) does not and will not infringe upon or violate any intellectual property rights of third parties and does not contain confidential or proprietary material misappropriated by Wellbeats from any third party. WE DO NOT WARRANT THAT THE CONTENT SERVICES OR THE SYSTEM WILL MEET YOUR REQUIREMENTS, PROVIDE UNINTERRUPTED USE, OR OPERATE AS REQUIRED, WITHOUT DELAY, OR WITHOUT ERROR.  OTHER THAN THE WARRANTIES EXPRESSLY SET FORTH INTHE AGREEMENT, EACH PARTY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLED OR STATUTORY, INCLUDING WARRANTIES OF MERCHANTIABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

 

  1. LIABILITY.  Except for gross negligence or willful misconduct by Wellbeats, neither we nor any of our affiliates or agents shall have any liability whatsoever for any damage, loss, or destruction to any of your systems as a result of the use of the Content.   It is your sole responsibility to take appropriate precautions to protect any computer and other hardware of yours from damage to your software, files, and data as a result of any such virus or other harmful feature. Wellbeats does not represent, warrant, or covenant that access to our Content will not cause the loss of files or disrupt the normal operations of any equipment, including but not limited to your computers.  For these and other reasons, you acknowledge and understand the importance of backing up all files to another storage mechanism prior to such activities.  You understand and accept the risks if you decide not to back up your files.

 

  1. LIMITATIONS OF LIABILITY.  WELLBEATS SHALL HAVE NO LIABILITY WHATSOEVER FOR ANY DAMAGE TO OR LOSS OF ANY HARDWARE, SOFTWARE, FILES, OR DATA RESULTING FROM A VIRUS OR OTHER CAUSE.  EACH PARTY SHALL NOT HAVE ANY LIABILITY TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL, SPECIAL, TREBLE, PUNITTIVE, EXEMPLARY, OR CONSEQUENTIAL LOSSES OR DAMAGES (INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, LOSS OF EARNINGS, LOSS OF BUSINESS OPPORTUNITIES, PERSONAL INJURIES OR DEATH).  WELLBEATS SHALL HAVE NO LIABILITY TO YOU OR ANY OTHER PERSON FOR DIRECT DAMAGES ARISING FROM OR RELATED TO YOUR USE OF THE CONTENT, OR LOSS OF INFORMATION OR DATA.  IN NO EVENT SHALL WELLBEATS BE LIABLE TO YOU FOR ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT IN AN AGGREGATE AMOUNT EXCEEDING THE AMOUNTS ACTUALLY PAID TO US BY YOU.

 

  1. INDEMNIFICATION.  We will indemnify and defend you from claims, losses or damages relating to or arising out of third-party claims that the Content infringe a third party’s intellectual property rights and from our breach of these Terms and Conditions.  You will indemnify and defend us from third-party claims, losses or damages relating to or arising out of your breach of these Terms and Conditions, the use or misuse of the Content by you, and any misrepresentation made to Members regarding the Content, or the violation of any applicable law.

 

  1. SOLE REMEDIES.  Your sole and exclusive remedies are as expressly set forth in these Terms and Conditions.  Certain of the exclusions may not apply if your state does not allow for the exclusion or limitation of implied warranties or does not allow for limitation or exclusion of incidental or consequential damages.  In those states, the liability of Wellbeats and our affiliates and agents is limited to the maximum extent such limitations are permitted by law.

 

  1. MISCELLANEOUS
    1. Relationship of the Parties.  These Terms and Conditions do not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between you, your Members and us.
    2. Promotion. By using the Content, you consent to our use of your name, trademark and logo to identify you as one of our representative Customers on our website, social media pages and other electronic or printed promotional materials. You agree to only use approved Wellbeats™ advertising materials to promote the Content and make no representations to Members regarding their use or access to the Content.
    3. No Waiver.  The failure or delay of Wellbeats at any time to require performance of any provision of these Terms and Conditions or to exercise any right provided for herein shall not be deemed a waiver of such provision or such right.  All waivers must be in writing.  Unless the written waiver contains an express statement to the contrary, no waiver by Wellbeats of any breach of any provision of these terms or of any right provided for herein, shall be construed as a waiver of any continuing or succeeding breach of such provision, a waiver of the provision itself, or a waiver of any right under these Terms and Conditions.
    4. Severability.  If any provision of these Terms and Conditions is held by a court of competent jurisdiction from which no appeal can be or is taken to be contrary to law, or invalid for any other reason, the provision shall be modified by the court so as to accomplish the intent and objectives of the parties to the fullest extent permitted by law and the remaining provisions of these Terms and Conditions shall remain in effect.  If the court is not able to craft such an alternative provision, then the remainder of these Terms and Conditions shall be construed in a way that most closely reflects the original intent of the parties.
    5. Assignment.  Neither party may not sell, assign, license or sublicense or otherwise convey in whole or in part, by operation of law or otherwise, to any third party the Agreement or any rights granted under this Agreement; provided however that either party may do so to a successor-in-interest pursuant to a merger, acquisition, or sale of all or substantially all of its business and/or assets.
    6. Governing Law.  These Terms and Conditions shall be governed by and construed in accordance with the laws of the State of Minnesota and where applicable, the United States of America without regard to the principles of conflicts of law.  The parties hereby consent to the jurisdiction of and venue in the Supreme Court of the State of Minnesota, State of Minnesota District Court, Hennepin County, or the United States District Court of the District of Minnesota.  Furthermore, both parties hereby consent to have any claim litigated in such court and waive any and all defenses as to jurisdiction and venue.  You hereby irrevocably waive to the fullest extent permitted by law any and all rights to trial by jury in any legal proceeding arising out of or relating to these Terms and Conditions or the transactions contemplated hereunder.
    7. Force Majeure.  Neither party shall be liable or deemed in default for any delay or failure in performance or interruption of service resulting directly or indirectly from acts of God, civil or military authority, acts of public enemy, war, riots, acts of terror, civil disturbances, insurrections, accidents, fire, explosions, earthquakes, floods, the elements or any other cause beyond our reasonable control.
    8. Survival of Limitations.  All representations, warranties, indemnifications, and limitations of liability shall survive termination; any other obligations or the parties hereunder shall also survive, if they relate to the period before termination or if, by their terms, they would be expected to survive such termination.  All obligations to pay any amounts owed prior to the effective date of termination will survive termination.
    9. Notices. For questions concerning these Wellbeats Terms and Conditions, please contact Wellbeats via postal letter or email as noted below.

Wellbeats, Inc.

1660 South Highway 100

Suite 590

St. Louis Park MN, 55416

Attention: Legal

legal@wellbeats.com

  1. Entire Agreement.  These Terms and Conditions contain the entire understanding and agreement between you and us with respect to the subject matter hereof and supersedes all previous communications, negotiations and agreements, whether oral or written between the parties with respect to such subject matter.  No modification, amendment or wavier of any provision of this agreement shall be effective unless included in a written document signed by a representative of both parties.