Activity Provider Agreement
Welcome to Wellvyl!
This Activity Provider Agreement (this “Agreement
”) and the policies referred to herein constitute a legally binding agreement between you and Wellvyl, operating through STRVYN, Inc. (hereinafter, “Wellvyl
” or “us
”) and contains the terms and conditions that govern your access to and use of Wellvyl’s proprietary ordering system/advertising website at or referenced in URL: https://wellvyl.com, including any subdomains thereof, and any other websites through which Wellvyl makes the Services available (collectively, the “Site
”), our mobile, tablet and other smart device applications, and application program interfaces (collectively, the “App
”) and all associated services (collectively, the “Services
”). The Site, App and Services together and hereinafter collectively referred to as the “Platform
The Agreement applies to all visitors, users, and others who access the Platform in order to list programs, such as classes, activities, and other groups and events (“Activities
”) on the Platform (each an “Activity Provider
”). The Activities listed on the Platform will then be made available to all visitors, users, and others who access the Platform in order to purchase and register for such Activities (each a “Purchaser
- ACCEPTANCE OF AGREEMENT AND CHANGES TO AGREEMENT
This Agreement may be modified, in our sole discretion, from time to time. Any modifications will be effective immediately upon posting by Wellvyl on the Platform and you hereby agree to any modifications. You affirm that you will review this Agreement periodically so you are aware of any and all modifications made to this Agreement. If the modified terms of this Agreement are not acceptable to you, your only recourse is to cease using the Platform and the Services.
- ACTIVITY PROVIDER ACCOUNT AND ACTIVITY LISTINGS ON THE WELLVYL PLATFORM
You must create an account with Wellvyl in order to represent your business on the Platform and to have the ability to upload, review, and update your Content (as defined below) on the Platform. In connection with such account, you will create a password to access your account and you will hold such password in confidence and be solely responsible for any disclosures of your password or use thereof by any person who you may authorize or any unauthorized third party. We reserve the right to disable any password upon our reasonable belief that the security with respect to such password has been or will be compromised. You are also responsible for all activities that occur in connection with your account. You agree to notify us immediately of any unauthorized use of your account. We reserve the right to close your account at any time.
In creating or modifying your account, you must be an authorized representative of the business subject to such account, and you must provide truthful, complete, and accurate information about your business and any material information necessary to enroll in your Activities posted on the Platform including, without limitation, with respect to each Activity listed on the Platform, a description of the activity, the price, the location, the duration, photographs, trademarks, logos, and any risks, restrictions or policies which might apply. All fees for classes listed on the Platform must be posted in U.S. dollars.
Activities that are likely to be rejected include but are not limited to those that: (i) promote products or services unrelated to activities; (ii) promote dangerous, illegal, harmful, or offensive activities; or (iii) fail to conform to any formatting or other technical specifications provided to you by us.
We may evaluate your listing in good faith and will, at our sole discretion, accept or reject your request and notify you accordingly.
- RIGHTS AND OBLIGATIONS OF THE ACTIVITY PROVIDER
Activity Provider agrees to accommodate Activities booked by a Purchaser via the Platform (“Bookings
”). Changes to the specifications and prices of any Activities you list on the Platform require reasonable advance notice to Wellvyl. You hereby agree to promptly respond (in no event to exceed twenty-four (24) hours from the time of a request or an inquiry) to our or a Purchaser’s request or inquiry with respect to the availability of an Activity or its schedule. You acknowledge that your failure to timely respond to our or a Purchaser’s request or inquiry will be adverse to Wellvyl and the Platform and, accordingly, Wellvyl shall be able to take any and all action as it deems appropriate, in its sole discretion, to address your continued failure to respond to any request or inquiry, with such actions including, without limitation, Wellvyl’s ability to remove you from the Platform and your providing monetary or other reimbursement or compensation to a Purchaser.
Wellvyl provides a Platform where you may list Activities offered by you and where Purchasers can register and pay for such Activities. You shall be fully and solely responsible for any and all damages, injuries, illnesses, liabilities, claims, and costs and expenses suffered by or in respect of any person or entity, caused in whole or in part by you or your Activities and services. You agree that Wellvyl has no control over and does not guarantee the quality, safety or legality of Activities listed on the Platform, the truth or accuracy of your listings or Content, or your ability to offer classes or activities.
You further agree not to list your classes on the Platform at a price that is higher than the price for the same Activity offered to the general public (excluding discounts and special promotions).
- ACTIVITY PROVIDER CONTENT
We, in our sole discretion, permit Activity Providers such as you to submit, post, upload, publish, or transmit any text, images, photos, video, audio, location data, graphics, logos, information, and all other forms of communication or data, including any of your copyrighted materials, on the Platform (“Content
”). By making available any Content through the Platform, you automatically grant (and represent and warrant that you have the right to grant) to Wellvyl and its affiliates and successors, a worldwide, irrevocable, perpetual, non-exclusive, fully paid, transferable, royalty-free license, with the right to sublicense, publicly display, reproduce, reformat, use, copy, adapt, distribute, license, sell, transfer, publicly perform, transmit, stream, broadcast, access, view, and otherwise exploit such Content on or by means of the Platform. Wellvyl does not claim any ownership rights in any such Content and nothing in this Agreement will be deemed to restrict any rights that you may have to use and exploit any such Content. You also irrevocably grant the users of the Platform the right to access, display, view, and store your Content in connection with their use of the Platform. You irrevocably waive, and cause to be waived, any claims and assertions of moral rights or attribution against Wellvyl and the users of the Platform with respect to your Content.
You represent and warrant that you own, or have the necessary consents and releases to use and authorize the use of, your Content and that the public posting and use of your Content by Wellvyl will not infringe or violate the rights of any third party or, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
You further acknowledge and agree that you are solely responsible for, and we assume no liability for, the truthfulness, accuracy, and completeness of your Content you make available or post on the Platform. You assume any and all risks associated with all Content you make available on or by means of the Platform, including, without limitation, any Purchaser’s reliance on its accuracy, completeness, quality, usefulness, or reliability. You may correct any untruthful, inaccurate, or incomplete content in your Content through the functionality of the Platform.
Wellvyl does not guarantee that your Content will be made available on the Platform. Wellvyl does not have any obligation to monitor the Platform; however, we reserve the right (but not the obligation) to correct or edit any Content you post in relation to your Activities, in our sole discretion, if we believe it to be untruthful, inaccurate, or incomplete. You also agree that you may not state or imply that your Content is in any way sponsored or endorsed by Wellvyl.
- REVIEWS AND PURCHASER FEEDBACK
Wellvyl will solicit feedback and reviews from Purchasers who use the Platform. A Purchaser’s feedback with respect to, and review of, you, your Activities, your services, your staff or any other matter (a “Review
”) may be made available to the general public through a posting on the Platform and, in our sole discretion, such feedback and reviews may be made available directly to you. We monitor all reviews prior to their posting on the Platform in order to assess their relevance and appropriateness. In our sole and absolute discretion, we may remove any Purchaser feedback or review. If you would like to report an irrelevant or inappropriate Review about you or your Activity, please notify us at email@example.com.
You further acknowledge and agree that you or we have no control over any Content posted about you or your Activities in Reviews posted by Purchasers on the Platform. Wellvyl shall have no liability to you and you hereby release Wellvyl, its subsidiaries, affiliates, any related companies, joint ventures, and partners, and the officers, directors, members, employees, agents, and representatives of each of them from any and all claims, damages, and liabilities in respect of any feedback or review posted by Purchasers.
- PAYMENT OF FEES AND TAXES
We are a service through which a Purchaser may find and enroll in Activities listed on the Platform. You hereby agree to pay Wellvyl the fees and commissions set forth in the [Package Option] section of your account registration page or as agreed upon from time to time in writing between the parties (the “Commission Payment
”). Such Commission Payment may be amended, modified, or supplemented from time to time in writing between the parties.
You authorize Wellvyl to collect the total amount of any registration or other fees and expenses paid by the Purchaser related to the Activities you list on the Platform (the “Gross Payment
”). Wellvyl will charge the Purchaser’s credit card in accordance with the Payment Terms of Service (available at: https://wellvyl.com/payments-terms-of-service/) and will remit payment to you at least once a month by wire transfer or by mailing you a check for the Gross Payment collected on your behalf, plus any credit card processing fees and minus our Commission Payment (the “Vendor Payment
”). All Vendor Payments will be made in U.S. dollars.
You are solely responsible for and will pay any and all sales, use, or excise taxes, assessments, or other liabilities chargeable by a governmental authority as a result of any service provided under this Agreement other than taxes on Wellvyl’s income.
- CANCELLATIONS, REFUNDS, AND CREDITS
Wellvyl offers Purchasers a standard cancellation and refund policy for all Activities offered on the Platform.
For any Events offered on the Platform, Purchasers may cancel a confirmed Booking thereof at any time at least seven (7) full days prior to the start date of such Event to be eligible for a refund of or credits for the total sum of the Gross Payment already paid to us for such Booking. Any cancellation request from a Purchaser which is received seven (7) full days or less from the start date of such Event will not receive a refund of the Gross Payment and you will nevertheless receive your Vendor Payment pursuant to Section 6 of this Agreement. “Events” are defined as.
For all Drop-In Activities offered on the Platform, Purchasers may cancel a confirmed Booking thereof at any time at least twenty-four (24) hours prior to the start time of the Drop-in Activity to be eligible for a refund of or credits for the total sum of the Gross Payment already paid to us for such Booking. Any cancellation request from a Purchaser which is received twenty-four (24) hours or less from the start time of a Drop-in Activity will not receive any refund for the Gross Payment and you will receive your Vendor Payment pursuant to Section 6 of this Agreement. “Drop-In Activities” are defined as any Activity offered on a spot or hourly basis, such as a single class, activity or sporting event not offered as a series.
You hereby acknowledge and agree that your cancellation policy, as it relates to Purchasers through the Platform, will comply with the aforementioned cancellation and refund policy for all Activities, Events and Drop-In Activities you offer on our Platform.
Where extenuating circumstances exist (such as a force majeure or if inclement weather creates an unsafe or uncomfortable scenario for Purchasers), Activity Providers may modify or cancel an Activity, including Drop-In Activities or Events. If there is a substantial change in the itinerary or the Activity needs to be cancelled, Wellvyl will be under no obligation to but will work with the Activity Provider to provide Purchaser an alternative date for the activity, an appropriate refund, or rebooking.
In the event that you choose to cancel or are unable to provide a confirmed Booking of an Activity, the Purchaser will receive a full refund of or credits for the Gross Payment for such Booking from Wellvyl. You will be solely responsible for contacting each Purchaser who is enrolled for such Booking to inform him/her of the cancellation. You will also remain liable for Wellvyl’s Commission Payment (which we will deduct from any future payments to you). Any fees charged by Wellvyl to you are non-refundable, even in the case of a cancellation.
- TERM AND TERMINATION
This Agreement will be effective and in full force as of the earliest of the date on which you begin using the Platform or the Services, the date on which you create an account on the Platform or the date on which you accept the terms of conditions of this Agreement by signing the Commission Schedule or by electronically accepting this Agreement.
Either party may terminate this Agreement without cause upon providing three (3) days notice in writing or by email to the other party. In the event of such termination by Wellvyl, Wellvyl shall pay you any Fee Payments then already due and payable to you up to and including the date of such termination. In the event of such termination by you, you shall continue to provide those Activities to any Purchaser having already made such purchase up to and including the date of such termination.
Wellvyl may, in its sole discretion, revoke your access to the Platform or your use of the Platform and the Services at any time, with cause, effective immediately upon Wellvyl providing notice by email to you, in the event that you breach this Agreement, and such breach is incapable of cure, or with respect to a breach capable of cure, you do not cure such breach within three (3) days after receipt of notice by email of such breach. Wellvyl shall have no liability to you for any discontinuance described above.
Any suspension, termination or cancellation of this Agreement will not affect your obligations to Wellvyl under this Agreement (including, without limitation, liability obligations, indemnification, and limitation of liability), which are intended to survive such suspension, termination, or cancellation.
After any termination by you or Wellvyl, you acknowledge and agree that Wellvyl shall have no further obligation to provide access to you of the Platform or the Services. Upon termination, all licenses and other rights granted to you by Wellvyl will immediately cease and Wellvyl will not be liable to you or any third party for termination of the Platform or the Services or of your use of the Platform. You shall also within five (5) days after the termination of this Agreement: (i) deliver to Wellvyl all hardware, software, tools, equipment, or other materials provided for your use by the Wellvyl; (ii) deliver to Wellvyl all tangible documents and materials (and any copies) containing, reflecting, incorporating, or based on the Confidential Information (as defined in Section 9); and (iii) permanently erase all of the Confidential Information (as defined in Section 9) from its computer systems.
- INTELLECTUAL PROPERTY
All software used on the Platform is the property of Wellvyl or its software suppliers and protected by United States and international copyright laws and other applicable laws. We also own the Platform, the trademarks, service marks and domain names displayed on the Platform (unless otherwise noted), whether registered or unregistered, and all text, logos, photographs, graphics, images, music, software, audio, video, location data, information or other materials, and all other forms of data or communication (other than your Content and any other Content supplied to us by third parties) (collectively, the “Wellvyl Content
”) and the Wellvyl Content is protected by copyright, trademark, and other laws of the United States and foreign countries. Except as expressly provided in this Agreement, Wellvyl and its licensors exclusively own all right, title, and interest in and to the Platform and in the Wellvyl Content, including all associated intellectual property rights. You represent and warrant that you will not remove, alter, conceal, or obscure any copyright, trademark, service mark, or other proprietary rights notices incorporated in or accompanying the Platform, nor shall you use, sell, transfer, reproduce, download, distribute, publicly display, edit, publish, copy, print, license or create derivative works from any of the Wellvyl Content without the prior written consent of Wellvyl. Wellvyl will also maintain sole editorial control over the Platform and the Services, including the presentation style and method of your Content.
The terms and conditions of this Agreement shall be kept in strict confidentiality by the parties hereto and shall not be disclosed to third parties except as may be required by any court order or governmental agency, or as mutually agreed upon in writing by the parties, or made to a party’s accountants, auditors, and legal counsel. The parties acknowledge that, in the context of this Agreement, they may receive valuable and important proprietary and other business information belonging to the other party – such as trade secrets, intellectual property rights, pricing and use policies, compensation structures, proprietary information, marketing methods and strategies, various processes or procedures, and other confidential information which unless previously made public shall be considered as confidential (“Confidential Information
”). The parties undertake to hold in strictest confidence, and not to use or disclose to any third party such Confidential Information, with the exception of the disclosure of such information to employees, associates of the parties, or affiliates thereof to the extent necessary for the execution of the obligations mentioned herein. The parties shall ensure that all aforementioned persons shall be bound by a secrecy obligation. Because a remedy at law for any breach of the provisions of this section will be inadequate, in addition to any and all other remedies available to Wellvyl, we shall have the remedies of a restraining order, injunction, or other equitable relief to enforce the provisions hereof. You agree that the issues in any action brought under this section will be limited to claims under this section and all other claims or counterclaims under other provisions of this Agreement will be excluded.
During the course of your relationship with Wellvyl, you will be introduced to, perform services for, and host Activities for certain Purchasers or other existing clients or prospects of Wellvyl via the Platform (hereinafter collectively referred to as “Wellvyl Targets
”). You hereby agree that you (or any of your affiliates, subsidiaries, partners, agents, and subcontractors) shall not circumvent, avoid, bypass, or obviate, directly or indirectly, Wellvyl in any project or business transaction between you and the Wellvyl Targets (excluding any Wellvyl Targets with whom you had a previous relationship) without our prior written approval. You further agree that you shall not directly market to or solicit any Purchaser obtained through the Platform or via the Services for the purpose of soliciting that customer to book directly from you rather than through the Platform. The provisions of this Section 10 shall survive the termination of this Agreement for any reason for two (2) years.
- DISCLAIMERS AND LIMITATIONS OF LIABILITY
THE PLATFORM, SERVICES, AND THE WELLVYL CONTENT ARE PROVIDED “AS IS”, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, WELLVYL AND ITS OFFICERS, DIRECTORS, MEMBERS, EMPLOYEES, AGENTS OR REPRESENTATIVES EXPLICITLY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.
WELLVYL DOES NOT REPRESENT OR WARRANT AS TO THE QUALITY OF ANY PRODUCTS OR SERVICES RECEIVED IN CONNECTION WITH YOUR USE OF THE PLATFORM AND THE SERVICES, INFORMATION OR CONTENT PROVIDED BY OR OBTAINED THROUGH THE PLATFORM OR THE SERVICES, OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY WELLVYL CONTENT, OR INFORMATION OBTAINED THROUGH THE PLATFORM OR THE SERVICES, INCLUDING INFORMATION PROVIDED BY A PURCHASER. WELLVYL DOES NOT REPRESENT OR WARRANT THAT THE FUNCTIONS CONTAINED ON THE PLATFORM AND IN THE WELLVYL CONTENT WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE PLATFORM OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. WELLVYL ALSO MAKES NO WARRANTY THAT THE PLATFORM, SERVICES OR WELLVYL CONTENT WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON A SECURE BASIS. WELLVYL DOES NOT GUARANTEE THAT YOU WILL BE ABLE ACCESS OR USE THE PLATFORM OR THE SERVICES AT THE TIMES OR LOCATIONS OF YOUR CHOOSING. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM WELLVYL OR THROUGH THE PLATFORM, SERVICES, OR WELLVYL CONTENT, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. WELLVYL SHALL FURTHER HAVE NO RESPONSIBILITY OR LIABILITY FOR THE CANCELLATION OR RESCHEDULING OF ANY CLASS OR ACTIVITY BOOKED THROUGH THE PLATFORM BY ANY PURCHASER.
YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE PLATFORM, SERVICES, AND WELLVYL CONTENT REMAINS WITH YOU. UNDER NO CIRCUMSTANCES WILL WELLVYL, ITS AFFILIATES, OR ITS SUBSIDIARIES OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, MEMBERS, EMPLOYEES, AGENTS, OR REPRESENTATIVES BE LIABLE TO YOU OR ANY THIRD-PARTY FOR ANY SPECIAL, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, DIRECT, INDIRECT, OR PUNITIVE DAMAGES OR ANY OTHER LOSS OR INJURY THAT RESULTS FROM, ARISING OUT OF OR IN CONNECTION WITH THE USE, OR THE ABILITY TO USE, THE PLATFORM, SERVICES, OR WELLVYL CONTENT, EVEN IF WELLVYL OR ANY AUTHORIZED REPRESENTATIVE OF WELLVYL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL WELLVYL OR ITS AFFILIATES OR ITS SUBSIDIARIES OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, MEMBERS, EMPLOYEES, AGENTS, OR REPRESENTATIVES OR ANY THIRD-PARTY PARTNERS OR SUPPLIERS HAVE ANY LIABILITY TO YOU FOR DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR YOUR USE OF THE PLATFORM (WHETHER IN CONTRACT, TORT INCLUDING NEGLIGENCE, OR OTHERWISE).
THIS PROVISION SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT.
- INDEMNIFICATION AND RELEASE
You hereby acknowledge and agree that you will defend, release, indemnify, and hold Wellvyl, its subsidiaries, affiliates, any related companies, joint ventures, and partners, and the officers, directors, members, employees, agents, and representatives of each of them harmless from and against any and all claims, liabilities, damages, losses and expenses, including, without limitation, all legal fees and expenses, arising out of or resulting from (i) your access to or use of the Platform and the Services; (ii) your Content; (iii) your interaction and relationship with a Purchaser in a class provided by you; (iv) your breach or violation of this Agreement; (v) any services, classes or activities provided by you to a Purchaser resulting from your use or Purchaser’s use of the Platform or the Services; or (vi) the infringement by you, or any third party using your account, of any intellectual property or other right of any person or entity. This provision shall survive the termination of this Agreement.
In the event that you have a dispute with a Purchaser, you release Wellvyl (and our officers, directors, members, agents, parent, subsidiaries, joint ventures, related companies, agents, representatives, and employees) from claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes. If you are a California resident, you hereby waive California Civil Code §1542, which provides that: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
- NATURE OF RELATIONSHIP BETWEEN THE PARTIES
Nothing in this Agreement shall be interpreted or construed as creating or establishing any partnership, joint venture, employment relationship, franchise, agency or any other similar relationship between the parties.
- GOVERNING LAW
All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule (whether of the State of New York or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of New York.
- DISPUTE RESOLUTION AND BINDING ARBITRATION
YOU AND WELLVYL ARE AGREEING TO GIVE UP ANY RIGHTS TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY, OR TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION WITH RESPECT TO A CLAIM. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT MAY ALSO BE UNAVAILABLE OR MAY BE LIMITED IN ARBITRATION.
ANY CLAIM, DISPUTE OR CONTROVERSY (WHETHER IN CONTRACT, TORT OR OTHERWISE, WHETHER PRE-EXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT, INJUNCTIVE AND EQUITABLE CLAIMS) BETWEEN YOU AND US ARISING FROM OR RELATING IN ANY WAY TO THIS AGREEMENT TO THE SERVICES OR YOUR USE OF THE PLATFORM (EACH A “CLAIM
”), WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION.
The arbitration will be administered by the American Arbitration Association (“AAA
”) in accordance with the Consumer Arbitration Rules (the “AAA Rules
”) then in effect, except as modified by this Section 16. (The AAA Rules are available at www.adr.org/ or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this section.
The arbitrator’s decision in any such arbitration will be final and binding upon the parties and may be enforced in any court of competent jurisdiction. The parties agree that the arbitration will be kept confidential and that the existence of the proceeding and any element of it (including, without limitation, any pleadings, briefs, or other documents submitted or exchanged and any testimony or other oral submissions and awards) will not be disclosed beyond the arbitration proceedings, except as may lawfully be required in judicial proceedings relating to the arbitration or by applicable disclosure rules and regulations of securities regulatory authorities or other governmental agencies.
If you demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, we will pay as much of the administrative costs and arbitrator’s fees required for the arbitration as the arbitrator deems necessary to prevent the cost of the arbitration from being prohibitive. In the final award, the arbitrator may apportion the costs of arbitration and the compensation of the arbitrator among the parties in such amounts as the arbitrator deems appropriate.
This arbitration agreement does not preclude you or us from seeking action by federal, state, or local government agencies. You and we also have the right to bring qualifying claims in small claims court. In addition, you and we retain the right to apply to any court of competent jurisdiction for provisional relief, including pre-arbitral attachments or preliminary injunctions, and any such request shall not be deemed incompatible with this Agreement, nor a waiver of the right to have disputes submitted to arbitration as provided in this Agreement.
Neither you nor we may act as a class representative or private attorney general, nor participate as a member of a class of claimants, with respect to any Claim. Claims may not be arbitrated on a class or representative basis. The arbitrator can decide only your and/or our individual Claims. The arbitrator may not consolidate or join the claims of other persons or parties who may be similarly situated.
If any provision of this Section 16 is found to be invalid or unenforceable, then that specific provision shall be of no force and effect and shall be severed, but the remainder of this Section shall continue in full force and effect. No waiver of any provision of this Section 16 of this Agreement will be effective or enforceable unless recorded in a writing signed by the party waiving such a right or requirement. Such a waiver shall not waive or affect any other portion of this Agreement. This Section of the Agreement will survive the termination of your relationship with us.
THIS SECTION LIMITS CERTAIN RIGHTS, INCLUDING THE RIGHT TO MAINTAIN A COURT ACTION, THE RIGHT TO A JURY TRIAL, THE RIGHT TO PARTICIPATE IN ANY FORM OF CLASS OR REPRESENTATIVE CLAIM, THE RIGHT TO ENGAGE IN DISCOVERY EXCEPT AS PROVIDED IN AAA RULES, AND THE RIGHT TO CERTAIN REMEDIES AND FORMS OF RELIEF. OTHER RIGHTS THAT YOU OR WE WOULD HAVE IN COURT ALSO MAY NOT BE AVAILABLE IN ARBITRATION.
- CALIFORNIA RESIDENTS; CONSUMER COMPLAINTS
The provider of services is set forth herein. If you are a California resident, in accordance with Cal. Civ. 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 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210 or (916) 445-1254.
Any notices or other communications permitted or required under this Agreement or otherwise will be made in writing via email. All notices and communications sent to Wellvyl shall be sent to firstname.lastname@example.org. All notices and communications sent to you shall be sent to your email address set forth in your account set up on the Platform. You hereby agree to provide immediate written notice to Wellvyl of any change in your email address. For notices and communications sent by email, the date of receipt of such notice or communication shall be deemed the date on which such notice or communication is transmitted, or if such date is a non-business day, on the immediately succeeding business day. At no time shall you opt-out of receiving any email or other electronic communications from Wellvyl.
This Agreement and all rights and duties hereunder are personal to the parties and will not, without the prior written consent of the other party, be assigned, sub-licensed, delegated, or otherwise encumbered by the other party or by operation of law. Any assignment in violation of this section shall be void. Wellvyl shall have the right to assign or transfer this Agreement without restriction. This Agreement shall be binding on and inure to the benefit of the parties and their respective successors and permitted assigns.
If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
No failure to exercise and no delay in exercising, on the part of the Wellvyl, any right, remedy, power or privilege hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. The rights, remedies, powers, and privileges herein provided are cumulative and not exclusive of any rights, remedies, powers, and privileges provided by law.
To the extent you have any questions or would like to contact Wellvyl regarding this Agreement, please contact Wellvyl at email@example.com using the subject line “Activity Provider Agreement – Question”.