Wellbeats Terms and Conditions

Last Updated:  May 18th, 2021

By using any of the Wellbeats™ (“we,” “us” or “our”) Content you agree to these Terms & Conditions, as well as any additional terms listed on your Order Form(s).

Wellbeats Terms and Conditions

 

  1. DEFINITIONS
    • Actual Launch Date: Is the date when access to the Content is turned on and when billing will begin.
    • 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.
    • 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.
    • Eligibility File. This file contains the list of Members that you desire to have access to the Content.
    • Eligibility File Periodicity: You will need to tell us how often you will send us an Eligibility File. Your options include monthly, quarterly or annually.
    • Initial Term: The Initial Term of this agreement is for twelve (12) months and begins on the Actual Launch Date.
    • Members: Members are those individuals you include on your Eligibility File who will be provided access to the Content.
    • Renewal Term. Each extension of the Agreement will be a Renewal Term.

 

  1. TERM AND TERMINATION
    • 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.
    • These Terms and Conditions will remain in effect should Wellbeats or you undergo a Change of Control event.

 

  1. PROPRIETARY RIGHTS.
    • You acknowledge that Wellbeats owns and retains all intellectual and/or proprietary and/or copyrights to the Content and all artwork, graphics, advertising, trademarks, video feed, copyrights and names used in conjunction with the Content.
    • Nothing provided herein shall be construed as an assignment or grant by Wellbeats of any of our rights to you or your Members.
    • 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 it from to provide it to you.

 

  1. CONTENT LICENSE.
    • In connection with the Content provided to you by us, we grant to you a limited, non-exclusive, non-transferrable, non-perpetual, license to access the Content.
    • Content is accessible through various means. Your Members will be able to access the Content via PCs, tablets, mobile devices or smart phones for their personal use.
    • Content may only be used by the Members that you authorize by including them in the Eligibility File you provide us.
    • You may not broadcast or otherwise use the Content commercially without prior written approval from Wellbeats.
    • Wellbeats reserves all rights to modify, remove or otherwise change any of the content provided to you.  We may, from time to time, update classes, features or packages.  Wellbeats, in our sole discretion and at any time, may discontinue certain classes or third-party providers of classes available to the Members. You will receive, without additional charges, any updates or replacement Content for any Content you have already licensed.
    • Some additional fitness, nutrition and mental wellbeing video packages, including content provided by third parties, may be made available by Wellbeats for additional license fees. Any additional Content that requires additional fees will not be provided to you and 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 to do any of the following:
    • translate, disassemble, decompile, decode, reverse engineer, or cause or allow discovery of the source code of the System;
    • 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;
    • make any claim or representation of ownership or deny or challenge our ownership of the Content;
    • use the Content in any manner that violates any local, state, federal or international law, rule, regulation or ordinance;
    • use, copy, modify, or prepare derivative works of our Content; or
    • 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.
    • You will be billed based on the actual number of Members you include on the Eligibility File that you provide us.
    • If the number of eligible Members included in your Eligibility File exceeds the maximum number allowed under a monthly fixed fee, your monthly fees will be increased using a Per Eligible Per Month rate structure to match the number of Members eligible to use the Content.
    • Billing will begin on the Actual Launch Date.
    • Fees may be paid either monthly or annually in advance using Automated Clearing House (ACH) or Credit Cards.
      • If paid annually, you may be subject to an annualized true-up.
      • 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 will be based on the Eligibility Files received by Wellbeats.
    • Payment is due Net 30 days from the date the invoice to you.
    • Overdue payments on undisputed invoices may be charged interest at the lesser of 1.5% per month or the maximum interest allowed by law.
    • If you are outside the U.S., 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.
    • Upon 10 days’ written notice to you for failure to make a payment, we may suspend all Content until payment is made.
    • 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.
    • Upon 30 days advance written notice to you and no more than once per calendar year at time of renewal, fees may be increased.
    • Maintenance, support services or administrative fees are charged at a flat rate. These are typically one-time fees and will be changed at time of renewal to the then current fee.
    • Any suspension, interruption, or unavailability of your Member’s Internet service will not reduce your monthly fee for Content.
    • You or your Members are responsible for all costs and any other charges or expenses charged by your Internet service provider.
    • 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
    • Updates to your payment information can be made securely at the following URL: https://wellbeats.formstack.com/forms/billing_payment_authorization
    • Billing questions can be sent to the Wellbeats billing team at: billing@wellbeats.com

 

  1. TAXES.
    • 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.
    • 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.
    • 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 the Wellbeats corporate web site here: wellbeats.com/Terms-Of-Service
    • 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”).
    • 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.
    • Wellbeats may use Member Data in aggregate, non-identifiable form, to evaluate, improve, or otherwise modify the Content.
    • 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.
    • 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.
    • 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.
    • 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.
    • No Member Data will be stored outside of the United States.
    • Wellbeats uses commercially reasonable best practices to prevent the insertion of any viruses or similar types of malware into our Content.

 

  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; and (b) the Content will not knowingly contain any viruses, worms, Trojan horses, or other malicious code specifically designed to permit unauthorized access to devices or equipment. WE DO NOT WARRANT THAT THE CONTENT WILL MEET YOUR REQUIREMENTS, PROVIDE UNINTERRUPTED USE, OR OPERATE AS REQUIRED, WITHOUT DELAY, OR WITHOUT ERROR.  OTHER THAN THE WARRANTIES EXPRESSLY SET FORTH IN THESE TERMS, WE DISCLIAM 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
    • 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.
    • 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.
    • 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.
    • 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.
    • Assignment.  You 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 this agreement or any rights granted under this Agreement.
    • 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.
    • 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.
    • 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.
    • 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

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.