By accessing or using the Welbean Properties, you represent that (1) you have read, understand and accept the Terms; (2) you are of legal age to form a binding contract with Welbean; and (3) you have the right, authority, and capacity to enter into these Terms (on behalf of yourself or the entity that you represent). If you do not agree with all of the provisions of these Terms, do not access and/or use the Welbean Properties.
ARBITRATION NOTICE: UNLESS YOU OPT OUT OF ARBITRATION WITHIN 30 DAYS OF THE DATE YOU FIRST AGREE TO THESE TERMS BY FOLLOWING THE OPT-OUT PROCEDURE SPECIFIED IN SECTION 12 (DISPUTE RESOLUTION) BELOW, AND EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN SECTION 12, YOU AGREE THAT DISPUTES BETWEEN YOU AND WELBEAN WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU ARE WAIVING YOUR RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING.
We may modify these Terms at any time, in our sole discretion. If we do so, we’ll let you know either by posting the modified Terms on the Website or Application, or through other communications. It’s important that you review the Terms whenever we modify them because if you continue to use the Welbean Properties after we have posted modified Terms on the Website or Application, you are indicating to us that you agree to be bound by the modified Terms. If you don’t agree to be bound by the modified Terms, then you may not use the Welbean Properties anymore. Because our services are evolving over time we may change or discontinue all or any part of the Welbean Properties (including any instructions, policies or guidelines referenced herein), at any time and without notice, at our sole discretion.
If you want to use certain features of the Welbean Properties, you must be a registered user with Welbean. You may register and create an account (“Account”) through the Application. It’s important that you provide us with accurate, complete and up-to-date information for your Account and you agree to update such information, as needed, to keep it accurate, complete and up-to-date. If you don’t, we might have to suspend or terminate your Account. You agree that you won’t disclose your Account password to anyone and you’ll notify us immediately of any unauthorized use of your Account. You’re responsible for all activities that occur under your Account, whether or not you know about them.
The term of your registration will begin on the date you complete your online registration form and, unless earlier terminated in accordance with these Terms, will continue in perpetuity. Notwithstanding the foregoing, your registration may automatically expire following any period of inactivity associated with your account in excess of twelve (12) consecutive months.
For purposes of these Terms: (i) “Content” means text, graphics, images, music, software, audio, video, works of authorship of any kind, and information or other materials that are posted, generated, provided or otherwise made available through the Welbean Properties; and (ii) “User Content” means any Content that Account holders (including you) provide to be made available through the Welbean Properties. Content includes without limitation User Content.
Welbean does not claim any ownership rights in any User Content and nothing in these Terms will be deemed to restrict any rights that you may have to use and exploit your User Content. Subject to the foregoing, Welbean and its licensors exclusively own and will retain ownership of all rights, title and interest in and to the Welbean Properties and all Content displayed on the Welbean Properties, including any intellectual property or other proprietary rights comprising any of the foregoing (collectively, “Welbean IP”). You acknowledge that the Welbean IP are protected by patent, copyright, trademark, and other laws of the United States and foreign countries. You agree not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Welbean Properties.
By making any User Content available through Welbean Properties you hereby grant to Welbean a non-exclusive, perpetual, irrevocable, transferable, sublicensable, worldwide, royalty-free license to use, copy, modify, create derivative works based upon, publicly display, publicly perform and distribute your User Content in connection with operating and providing the Welbean Properties and Content to you and to other Account holders. We may also create anonymized data and images from your User Content, and such data and images will no longer be your User Content. You waive any rights you may have regarding Your User Content being altered or manipulated in any way that may be objectionable to you.
You are solely responsible for all your User Content. You represent and warrant that: (a) you own the User Content posted by you on or through the Website or Application or otherwise have the right to grant the license set forth in these Terms, (b) the posting and use of your User Content on or through the Welbean Properties does not (i) misappropriate or violate the privacy rights, publicity rights, copyrights, contract rights, intellectual property rights, or any other rights of any person, (ii) result in the violation of any applicable law or regulation; and (iii) result in a breach of contract between you and a third party. You agree to pay for all royalties, fees, and any other monies owing any person by reason of content you post on or through the Website or Application. You also acknowledge and agree that Your User Content is non-confidential and non-proprietary.
Welbean reserves the right to refuse to accept, post, display, or transmit any of your User Content in its sole discretion. Welbean may review and remove your User Content at any time for any reason, including for activity which, in its sole judgment: (i) violates these Terms; (ii) violates applicable laws, rules, or regulations (collectively, “Laws”); (iii) is abusive, disruptive, offensive or illegal; or (iv) violates the rights of, or harms or threatens the safety of, users of the Welbean Properties. You can remove your User Content by specifically deleting it. However, in certain instances, some of your User Content (such as posts or comments you make or data that you have shared with a third party) may not be completely removed and copies of your User Content may continue to exist on the Welbean Properties. We are not responsible or liable for the removal or deletion of (or the failure to remove or delete) any of your User Content.
Subject to your compliance with these Terms, Welbean grants you a limited, non-exclusive, non-transferable, non-sublicensable license to download, view, copy, display and print the Content solely in connection with your permitted use of the Welbean Properties and solely for your personal and non-commercial purposes. You shall not use the Application, the Website or any of the data presented on or by the Application or Website, or otherwise hosted or stored by Welbean, for any commercial purpose other than as expressly permitted herein. This license is revocable at any time without notice and with or without cause.
You will use the Website and Application in strict compliance with (1) these Terms; (2) any additional instructions, guidelines or policies issued by Welbean, including those posted on the Website or within the Application; and (3) all applicable Laws.
You agree to use the Website and Application only for their intended purpose. You must use the Website and Application in compliance with all privacy, data protection, intellectual property, and other applicable Laws. You agree not to do any of the following:
The Welbean Properties may contain links to third-party websites or resources . We provide these links only as a convenience and are not responsible for the content, products or services on or available from those websites or resources or links displayed on such websites. You acknowledge sole responsibility for and assume all risk arising from your use of any third-party websites or resources.
The Welbean Properties may enable you to communicate with, share data with or import data from certain third-party services, including, without limitation, telemedicine services (each, a “Third-Party Service”). If you decide to use such Third-Party Services, the Third-Party Service may import, view and interpret your data associated with the Welbean Properties and you may export data hosted by the Third-Party Services into the Welbean Properties. Any such imported data will be available to you on the Website and/or within the Application. Welbean reserves the right to change or discontinue any Third-Party Services accessible via the Welbean Properties, in its sole discretion.
You acknowledge sole responsibility for and assume all risk arising from your use of any Third-Party Service. You acknowledge that these Terms and the Welbean Privacy Notice do not apply to any such Third-Party Service. You are responsible for reading and understanding the terms and conditions and privacy notice that applies to your use of such Third-Party Service. Any data received from a Third-Party Service is intended for informational purposes only. Welbean and such Third-Party Service make no guarantees of the accuracy or clinical significance of such data or any interpretation of such data. It is your responsibility to present such data received from the Third-Party Service to your physician for proper analysis and diagnosis.
The Welbean Properties may enable you to communicate with or share data with your healthcare provider (“Healthcare Provider”). If you decide to do so, your Healthcare Provider may import, view and interpret your data associated with the Welbean Properties. You acknowledge sole responsibility for and assume all risk arising from sharing data with your Healthcare Provider.
The Welbean Properties may enable you to communicate with or share data with other Account holders, such as family members. If you decide to do so, such Account holders may import and view your data associated with the Welbean Properties. You acknowledge sole responsibility for and assume all risk arising from sharing data with other Account holders.
Welbean may engage a third party (including Welbean’s affiliates) to perform, or support the performance of, all or any portion of the Welbean Properties. Any engagement with any third party will be conducted in accordance with the Welbean Privacy Notice described in Section "PRIVACY NOTICE".
Please refer to our Privacy Notice (www.welbean.com/privacy) for information on how we collect, use and disclose information from our users. You acknowledge and agree that your use of the Welbean Properties is subject to our Privacy Notice.
We may terminate, suspend or limit your access to the Welbean Properties, at our sole discretion, at any time and without notice to you, including, without limitation, if we suspect that you are in violation of, or reasonably likely to be in violation of, these Terms or any additional instructions, guidelines or policies issued by us, including those posted on the Website or in the Application. You may cancel your Account at any time in accordance with the procedures described on the Website or in the Application.
Upon the expiration or earlier termination of your Account or rights to use the Website, Application or Services, for any reason (i) You will no longer be authorized to access or use the Website, Application or Services; (ii) Welbean may delete any data associated with you or your Account; and (iii) all rights and obligations of the parties under these Terms shall expire, except those rights and obligations under those sections specifically designated in Section 8.3.
Notwithstanding the expiration or earlier termination of your Account or rights to use the Website, Application or Services, the following provisions will survive: Sections 4 (Intellectual Property Rights; Restrictions on Use); 6.1 (Links to Third Party Websites or Resource); 6.2 (Third-Party Services); 6.3 (Healthcare Providers); 6.4 (Other Account Holders); 8.2 (Effect of Termination); 8.3 (Survival); 9 (Warranty Disclaimer); 10 (Indemnity); 11 (Liability); 12 (Dispute Resolution); 13 (General).
YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE Welbean PROPERTIES AND CONTENT IS AT YOUR SOLE RISK, AND THE FOREGOING ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THESE TERMS, WE MAKE NO REPRESENTATIONS, COVENANTS OR WARRANTIES AND OFFER NO OTHER CONDITIONS, EXPRESS OR IMPLIED, REGARDING ANY MATTER. WITHOUT LIMITING THE FOREGOING, WE EXPLICITLY DISCLAIM ANY WARRANTIES OF MERCHANTABILITY, SUITABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. We make no warranty that the Welbean Properties will meet your requirements or be available on an uninterrupted, secure, or error-free basis. We make no warranty regarding the quality, accuracy, timeliness, truthfulness, completeness or reliability of any Content . You acknowledge and agree that there are risks inherent to transmitting information over and storing information on the internet and that we are not responsible for any losses of your data, confidentiality or privacy in connection therewith.
IN ADDITION, YOU UNDERSTAND AND AGREE THAT WE DO NOT OFFER MEDICAL ADVICE OR DIAGNOSES OR ENGAGE IN THE PRACTICE OF MEDICINE. THE WELBEAN PROPERTIES ARE NOT INTENDED TO BE, AND DO NOT CONSTITUTE, A SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS OR TREATMENT AND ARE OFFERED FOR INFORMATIONAL PURPOSES ONLY. YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT WE ARE NOT RESPONSIBLE FOR ANY HEALTHCARE OR RELATED DECISIONS MADE BY YOU OR YOUR HEALTHCARE PROFESSIONAL BASED UPON DATA COLLECTED, TRANSMITTED OR DISPLAYED BY OR ON THE Welbean PROPERTIES, WHETHER SUCH DATA IS ACCURATE OR INACCURATE.
You will indemnify and hold harmless Welbean, its affiliates and their respective current, future or former officers, directors, partners, equity holders, employees, agents, contractors, and their successor or assigns (collectively, the “Welbean Group”), from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable legal and accounting fees arising out of or in any way connected with (i) your access to or use of the Welbean Properties or Content, (ii) your User Content, or (iii) your violation of these Terms or any additional instructions, guidelines or policies issued by Welbean, including those posted in the Application or on the Website .
NEITHER Welbean NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE WELBEAN PROPERTIES OR CONTENT WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF LIFE OR HEALTH, LOSS OF USE, LOSS OF SAVINGS OR REVENUE, LOST PROFITS, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE Welbean PROPERTIES OR CONTENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT WELBEAN HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
IN NO EVENT WILL WELBEAN’S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE WELBEAN PROPERTIES OR CONTENT EXCEED THE AMOUNTS YOU HAVE PAID TO WELBEAN FOR USE OF THE WELBEAN PROPERTIES OR CONTENT OR ONE HUNDRED DOLLARS ($100), IF YOU HAVE NOT HAD ANY PAYMENT OBLIGATIONS TO WELBEAN, AS APPLICABLE.
THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN Welbean AND YOU.
At its option, any member of the Welbean Group may seek all remedies available to it under law and in equity, including injunctive relief in the form of specific performance to enforce these Terms, including any additional instructions, guidelines or policies issued by Welbean, including those posted in the Application or on the Website, and/or actions for damages.
No action arising out of, in connection with, or relating to these Terms or the subject of these Terms shall be brought by you more than one (1) year after the accrual of the cause of action. This period shall not be extended for any reason, except by the written consent of both parties. All statutes or provisions of law which would toll or otherwise affect the running of the period of limitation are hereby waived, and no such statute or provision of law shall operate to extend the period limited in this paragraph.
These Terms and any action related thereto will be governed by the laws of the State of California without regard to its conflict of laws provisions.
You and Welbean agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Welbean Properties or Content (collectively, “Disputes”) will be settled by binding arbitration, except that each party retains the right: (i) to bring an individual action in small claims court and (ii) to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights (the action described in the foregoing clause (ii), an “IP Protection Action”). Without limiting the preceding sentence, you will also have the right to litigate any other Dispute if you provide Welbean with written notice of your desire to do so by email or regular mail at 350 Townsend #758, San Francisco, CA 94107, USA, within thirty (30) days following the date you first agree to these Terms (such notice, an “Arbitration Opt-out Notice”). If you don’t provide Welbean with an Arbitration Opt-out Notice within the thirty (30) day period, you will be deemed to have knowingly and intentionally waived your right to litigate any Dispute except as expressly set forth in clauses (i) and (ii) above. The exclusive jurisdiction and venue of any IP Protection Action or, if you timely provide Welbean with an Arbitration Opt-out Notice, will be the state and federal courts located in the Northern District of California and each of the parties hereto waives any objection to jurisdiction and venue in such courts. Unless you timely provide Welbean with an Arbitration Opt-out Notice, you acknowledge and agree that you and Welbean are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both you and Welbean otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this Section 12 will be deemed void. Except as provided in the preceding sentence, this Section 12 will survive any termination of these Terms.
The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this Section 12. (The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this Section.
A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a general Demand for Arbitration and a separate Demand for Arbitration for California residents .) The arbitrator will be either a retired judge or an attorney licensed to practice law and will be selected by the parties from the AAA’s roster of arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.
Unless you and Welbean otherwise agree, the arbitration will be conducted in the county where you reside. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of the documents that you and Welbean submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award of damages must be consistent with the terms of Section 11.1 (Limitation of Liability) above as to the types and amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law. Welbean will not seek, and hereby waives all rights it may have under applicable law to recover, attorneys’ fees and expenses if it prevails in arbitration.
Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules. However, if your claim for damages does not exceed $75,000, Welbean will pay all such fees unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).
Notwithstanding the provisions of the Section 2 (Changes to Terms or Welbean Properties) above, if Welbean changes this Section 12 after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us written notice (including by email to firstname.lastname@example.org) within 30 days of the date such change became effective, as indicated in the “Last Updated” date above or in the date of Welbean’s email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Welbean in accordance with the provisions of this Section 12 as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).
These Terms and any additional instructions, guidelines or policies issued by Welbean, including those posted in the Application or on the Website constitute the entire agreement of the parties with regard to your use of the Application and the Website, and all matters addressed herein, and all prior agreements, letters, proposals, discussions and other documents regarding the Application or the Website and the matters herein are superseded and merged into these Terms.
Welbean will be excused from performance under these Terms for any period that it is prevented from or delayed in performing any obligations pursuant to these Terms, in whole or in part, as a result of a Force Majeure Event. For purposes of this Section 13.2, “Force Majeure Event” means an event or series of events caused by or resulting from any of the following: (1) weather conditions or other elements of nature or acts of God; (2) acts of war, acts of terrorism, insurrection, riots, civil disorders or rebellion; (3) quarantines or embargoes, (4) labor strikes; (4) telecommunications, network, computer, server or Internet downtime; (5) unauthorized access to Welbean’s information technology systems by third parties; or (6) other causes beyond the reasonable control of Welbean.
If any provision of these Terms shall be held to be invalid, illegal or unenforceable (either by an arbitrator appointed pursuant to the terms of the Section 12 (Dispute Resolution) above or by court of competent jurisdiction, but only if you timely opt out of arbitration by sending us an Arbitration Opt-out Notice in accordance with the terms set forth above), the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby, and such provision shall be deemed to be restated to reflect the Parties’ original intentions as nearly as possible in accordance with applicable Law(s).
You may not assign these Terms (or any rights, benefits or obligations hereunder) by operation of law or otherwise without the prior written consent of Welbean, which may be withheld at Welbean’s sole discretion. Any attempted assignment by you that does not comply with the terms of this Section 13.4 shall be null and void. Welbean may assign these Terms, in whole or in part, to any third party in its sole discretion. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
All notices from Welbean intended for receipt by you shall be deemed delivered and effective when sent to the email address provided by you during the registration process or when posted to and made available to you on the Application or Website. If you change the email address provided in connection with your registration to access and use the Application, You must update your address in accordance with the procedures set forth on the Website.
Welbean’s failure to enforce any right or provision of these Terms will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Welbean. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.