Effective as of March 30, 2018
- USER REPRESENTATIONS AND WARRANTIES
This Platform is intended for, offered, and available to users who are 18 years of age or older and reside in the United States of America (“United States”) or any of its territories or possessions. This Platform is not directed to persons under the age of 18. If you are a child under 13 years of age, you must not access or use the Platform under any circumstances or for any reason and must exit from the Platform immediately.
By using the Platform, you represent and warrant that you are of legal age to form a binding contract with Wellvyl and meet all of the foregoing eligibility requirements. If you do not meet all of these requirements, you must not access or use the Platform.
- 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. Any changes to Section 18, entitled “Governing Law and Jurisdiction,” and Section 21, entitled “Dispute Resolution and Binding Arbitration,” will not apply to any disputes for which the parties have actual notice on or prior to the date the change is posted on the Platform.
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.
- SCOPE OF WELLVYL SERVICES
Wellvyl’s Platform is an online marketplace that enables registered Members to make a Booking of Activities listed on the Platform (“Listings”) and provided by Activity Providers. Members and Activity Providers can use the Platform to communicate and transact directly with one another.
As the provider of the Platform, Wellvyl does not own, create, sell, resell, provide, control, manage, offer, deliver, or supply any listings or activities. Activity Providers alone are responsible for their Listings and Activities. When Members schedule an Activity with Activity Providers, the Member and Activity Provider are entering into a contract directly with each other. Wellvyl is not and does not become a party to, or other participant in, any contractual relationship between a Member and Activity Provider, nor is Wellvyl an insurer. Wellvyl is not acting as an agent in any capacity for any Member, except as specified in the Payment Terms of Service.
While we may help facilitate the resolution of disputes, Wellvyl has no control over and does not guarantee the existence, quality, safety, suitability, or legality of any Listings, or the truth or accuracy of any listing descriptions, ratings, reviews, or other Member Content (as defined below), or the performance or conduct of any Member, Activity Provider, or third party. Wellvyl does not endorse any Listing, Member, or Activity Provider. Any references to a Member or Activity Provider being “registered” (or similar language) only indicate that the user has completed the requirements necessary to register or create a Member or Activity Provider account with Wellvyl (“Account”). Any such description is not an endorsement, certification, or guarantee by Wellvyl about any Member or Activity Provider, including of the Member’s or Activity Provider’s identity or background or whether the Member or Activity Provider is trustworthy, safe, or suitable. You should always exercise due diligence and care when deciding whether to schedule an Activity, use an Activity Provider’s services, accept a booking request from a Member, or communicate and interact with other Members and Activity Providers, whether through the Platform, online, or in person.
To assist Members and Activity Providers who speak different languages, Activity Provider listings and Member and Activity Provider Content (defined below) may be translated, in whole or in part, into other languages. Wellvyl cannot guarantee the accuracy or quality of such translations and Members and Activity Providers are responsible for reviewing and verifying the accuracy of such translations. The Wellvyl Platform may contain translations powered by Google, of which Wellvyl disclaims all warranties related to the translations, express or implied, including any warranties of accuracy, reliability, and any implied warranties for merchantability, fitness for a particular purpose, and noninfringement.
The Wellvyl Platform may contain links to third party websites or resources (“Third Party Services”). Such Third Party Services may be subject to different terms and conditions and privacy practices. Wellvyl is not responsible or liable for the availability or accuracy of such Third Party Services, or the content, products, or services available from such Third Party Services. Links to such Third Party Services are not an endorsement by Wellvyl of such Third Party Services.
- ACCESSING THE PLATFORM AND ACCOUNT SECURITY
If you’re an individual who wants to book Activities through the Platform, or if you are an Activity Provider providing Activities through our Platform, you will be required to register and create an Account with Wellvyl in order to access and use certain features of the Platform, such as publishing a Listing and scheduling and/or purchasing an Activity.
When you create a Member Account, we will require that you provide certain identifiable information (“Personally Identifiable Information”), including but not limited to, your full name and email address.
When you create an Activity Provider Account, we will ask you for business identifiable information. This refers to information that can be used to contact or identify the business (“Activity Provider Information”). Activity Provider Information includes, but is not limited to, the business name, the “doing-business-as” name of the business, phone number, email address, corporate tax identification information (“EIN”), owner name and contact information, representative name and contact information, business postal address, bank account information, and bank routing number. We will also asking you for information on the Activities you provide, including but not limited to, price, description, name, associated images, type, and attendee requirements and age ranges.
If you coose, or are provided with, a user name, password or any other piece of information as part of our security procedures, you must treat such information as confidential, and you must not disclose it to any other person or entity. You will be held solely responsible for any disclosures of your password or use thereof by any person who you may authorize or any unauthorized third party. You may not register more than one Account unless Wellvyl authorizes you to do so. You also acknowledge that your account is personal to you and agree not to provide any other person or entity with access to this Platform or portions of it using your user name, password, or other Account security information. You agree to notify us immediately of any unauthorized access to or use of your user name, password, Account, or any other breach of security. We reserve the right to close your Account at any time.
You also agree to ensure that you exit from your Account at the end of each session. You should use particular caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other information. No third party is authorized by Wellvyl to ask for your credentials, and you shall not request the credentials of another Member or Activity Provider. Identity theft and the practice currently known as “phishing” are of great concern to us. We do not and will not, at any time, request your credit card information, your login information, or national identification numbers in a non-secure or unsolicited e-mail or telephone communication. For more information about phishing, visit the Federal Trade Commission’s website.
You are responsible for making all arrangements necessary for you to have access to the Platform.
- TERM AND TERMINATION
Activity Providers. 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 enter the Activity Provider Agreement. Please see the Activity Provider Agreement made available at https://wellvyl.com/activity-provider-agreement/ for all other applicable terms and conditions.
After any Account termination by a Member, Activity Provider, 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.
- MEMBER AND ACTIVITY PROVIDER CONTENT
Any Member and Activity Provider Content you Post to the Platform will be considered non-confidential and non-proprietary. By providing any Member and Activity Provider Content on the Platform, you grant us and our affiliates and service providers, and each of their and our respective licensees, successors, and assigns the right to use, reproduce, modify, perform, display, distribute, and otherwise disclose to third parties any such material. You represent and warrant that you own or control all rights in and to the Member and Activity Provider Content and that you have the right to grant the license granted above to us and our affiliates and service providers, and each of their and our respective licensees, successors, and assigns. You acknowledge and agree that you are responsible for any Member and Activity Provider Content you submit or contribute, and you, not Wellvyl, have full responsibility for such content, including its legality, reliability, accuracy, and appropriateness.
We are not responsible or liable to any third party for the content or accuracy of any Member and Activity Provider Content posted by you or any other user of the Platform. We do not undertake to review all material before it is Posted on the Platform, and cannot ensure prompt removal of objectionable material after it has been Posted. Accordingly, we assume no liability for any action or inaction regarding transmissions, communications, or content provided by any user or third party. We have no liability or responsibility to anyone for performance or nonperformance of the activities described in this section.
- COPYRIGHT INFRINGEMENT
If you believe that any Member or Activity Provider Content (as defined below) violates your copyright, please submit your complaint by email to the following address: firstname.lastname@example.org. It is our goal to respond quickly to the concerns of owners and any alleged infringement. Please contact our copyright agent (as identified below) and provide us with the following information:
- A physical signature or the electronic equivalent of the person authorized to act on behalf of the owner of the copyright interest;
- An identification, description, and where possible include a copy or the location or URL of an authorized version of the copyrighted work that you claim has been infringed upon;
- An identification, description, URL, or any other pertinent information that will allow us to determine where the material that you claim is infringing is located on our Platform;
- Your address, telephone number, and email address;
- A statement by you that you have a good-faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
- A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.
Our Copyright Agent for notice of claims of copyright infringement relating to our Site is as follows:
Attn: Copyright Agent – Legal Department
Address: 255 Clawson Street, Staten Island, NY 10306
Please note that this procedure is exclusively for notifying Wellvyl that your copyrighted material has been infringed.
- INTELLECTUAL PROPERTY AND WELLVYL CONTENT
All software used on the Platform is the property of Wellvyl or its software suppliers, and is 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 Member and Activity Content or 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. Wellvyl may, at its sole discretion, enable Members and Activity Providers to access and view any content that Wellvyl itself makes available on or through the Platform, including proprietary Wellvyl Content and any content licensed or authorized for use by or through Wellvyl for a third party.
In connection with your use of the Platform, you represent and warrant that you will not and will not assist or enable others to 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, display, 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. You further represent and warrant that you will not and will not assist or enable others to dilute, tarnish or otherwise harm the Wellvyl brand in any way, registering and/or using Wellvyl’s or derivative terms in domain names, trade names, trademarks or other source identifiers, or registering and/or using domains names, trade names, trademarks, or other source identifiers that closely imitate or are confusingly similar to Wellvyl domains, trademarks, taglines, promotional campaigns, or content, nor attempt to decipher, decompile, disassemble, or reverse engineer any of the software used to provide the Platform.
- USE OF WELLVYL PLATFORM
When you use apps or other software created by Wellvyl, you may grant certain permissions to us for your device. Most mobile devices provide you with information about these permissions. Our services may be accessible from mobile for free, however, you may also be using the services of one or more third parties, such as a wireless carrier or a mobile platform provider. Your use of these Third Party Services may be subject to separate policies including but not limited to privacy policies, terms and conditions of use, and fees of these third parties, such as your carrier’s normal rates and fees, including but not limited to text messaging and data charges, which will still apply. In the event you change or deactivate your mobile telephone number, you will update your account information through Wellvyl’s services within 48 hours to ensure that your messages are not sent to the person who acquires your old number. You provide consent and all rights necessary to enable us to sync (including through any application) your devices with any information that is visible to you through the applicable services.
If you access or download the Wellvyl Application from the Apple App Store, you agree to Apple’s Licensed Application End User License Agreement.
- RELIANCE ON INFORMATION POSTED
The information presented on or through the Platform is made available solely for general information purposes. We do not warrant the accuracy, completeness, or usefulness of this information. Any reliance you place on such information, including Member and Activity Provider Content, is strictly at your own risk. We disclaim all liability and responsibility arising from any reliance placed on such materials by you or any other visitor to the Platform, or by anyone who may be informed of any of its contents.
This Platform may include content provided by third parties, including materials provided by other users, bloggers, and third-party licensors, syndicators, service providers, aggregators and/or reporting services. All statements and/or opinions expressed in these materials, and all articles and responses to questions and other content, other than the content provided by Wellvyl, are solely the opinions and the responsibility of the person or entity providing those materials. These materials do not necessarily reflect the opinion of Wellvyl. We are not responsible or liable to you or any third party for the content or accuracy of any materials provided by any third parties.
- PROHIBITED USES
If you feel that any Member or Activity Provider you interact with, whether online or in person, is acting or has acted inappropriately, including but not limited to anyone who engages in offensive, violent, or sexually inappropriate behavior, you suspect of stealing from you, or engages in any other disturbing conduct, you should immediately report such person to the appropriate authorities and then to Wellvyl by contacting us with your police station and report number (if available), provided that your report will not obligate us to take any action beyond that required by law (if any) or cause us to incur any liability to you.
Without limiting the foregoing, we have the right to fully cooperate with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone posting any materials on or through the Platform. YOU WAIVE AND HOLD HARMLESS WELLVYL AND ITS AFFILIATES, LICENSEES, AND SERVICE PROVIDERS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY WELLVYL/ANY OF THE FOREGOING PARTIES DURING OR AS A RESULT OF ITS INVESTIGATIONS AND FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OF INVESTIGATIONS BY EITHER WELLVYL/SUCH PARTIES OR LAW ENFORCEMENT AUTHORITIES.
- LISTINGS AND BOOKINGS
Activity Providers. When creating a Listing to be Posted on the Wellvyl Platform, Activity Providers must fully educate and inform Members of any inherent risks of participating in the Activity, location, any requirements for participation, such as the minimum age, related skills, level of fitness or other requirements, and anything else a Member may need to know to participate in the Activity (including dress codes, materials, or equipment). You represent and warrant that you understand and comply with all laws, rules, and regulations that may apply to your Activity, and will obtain any required licenses, permits, or registrations prior to providing your Activity. You must provide the Activity and may not allow any third party to provide the Activity.
Members. Subject to meeting any requirements or restrictions on participation as provided in a Listing by an Activity Provider, you may book any Listing available on the Platform. Upon receipt of Booking confirmation from Wellvyl, a legally binding agreement is formed between you and the Activity Provider, subject to any additional terms and conditions of the Activity Provider that apply. When making a Booking, you represent and warrant that you are legally authorized to act. You should carefully review the description of any Activity and Activity Provider you intend to make a Booking of and with to ensure you meet any minimum age, proficiency, fitness, or other requirements which the Activity Provider has specified in their Listing. You are required to inform the Activity Provider of any medical or physical conditions or other circumstances that may impact your ability to safely participate in any Activity. In addition, certain laws may apply. You are responsible for identifying, understanding, and complying with all laws, rules, and regulations that apply to your participation in an activity. You must at all times adhere to the Activity Provider’s instructions.
When Members schedule an Activity with Activity Providers, the Member and Activity Provider are entering into a contract directly with each other. Wellvyl is not and does not become a party to, or other participant in, any contractual relationship between a Member and Activity Provider, nor is Wellvyl an insurer. Wellvyl is not acting as an agent in any capacity for any Member, except as specified in the Payment Terms of Service.
- CANCELLATIONS AND REFUNDS
Wellvyl offers Purchasers a standard cancellation and refund policy for all Activities offered on the Platform (“Cancellation and Refund Policy”) as set out in this section:
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 amount 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 (as defined in the Payment Terms of Service). “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 amount 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. “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.
Where extenuating circumstances exist (such as a force majeure or if inclement weather creates an unsafe or uncomfortable scenario for the Purchaser(s) enrolled in an Activity), Activity Providers may modify or cancel an Activity, including Drop-In Activities, Events, or Activities (“Extenuating Circumstances Policy”) . 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 an Activity Providers chooses to cancel or is unable to provide a confirmed Booking of an Activity, the Purchaser will receive a full refund of or credits for the amount paid for such Booking from Wellvyl. The Activity Provider is solely responsible for contacting each Purchaser who is enrolled for such Booking to inform the Purchaser of the cancellation.
Activity Providers. Please see the Activity Provider Agreement for all other applicable terms and conditions.
- RATINGS AND REVIEWS
- INFORMATION ABOUT YOU AND YOUR VISITS TO THE PLATFORM
- LINKING TO THE PLATFORM AND SOCIAL MEDIA FEATURES
This Platform may provide certain social media features that enable you to link from your own or certain third-party websites to certain content on this Platform, send e-mails or other communications with certain content, links to certain content on this Platform, or cause limited portions of content on this Platform to be displayed or appear to be displayed on your own or certain third-party websites.
- GEOGRAPHIC RESTRICTIONS
We provide this Platform for use only by persons located in the United States of America. We make no claims that the Platform or any of its content is accessible or appropriate outside of the United States of America. Access to the Platform may not be legal by certain persons or in certain countries. If you access the Platform from outside the United States of America, you do so on your own initiative and are responsible for compliance with local laws.
- GOVERNING LAW AND JURISDICTION
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.
- INDEMNIFICATION AND RELEASE
In the event that you have a dispute with a Purchaser or Activity Provider, you release Wellvyl and its officers, directors, members, agents, parent, subsidiaries, affiliates, any related companies, joint ventures, and partners, and the officers, directors, members, employees, agents, and representatives of each of them harmless 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.”
- 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, AGENTS, PARENT, SUBSIDIARIES, AFFILIATES, ANY RELATED COMPANIES, JOINT VENTURES, AND PARTNERS, AND THE OFFICERS, DIRECTORS, MEMBERS, EMPLOYEES, AGENTS, AND REPRESENTATIVES OF EACH OF THEM 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 AND ITS OFFICERS, DIRECTORS, MEMBERS, AGENTS, PARENT, SUBSIDIARIES, AFFILIATES, ANY RELATED COMPANIES, JOINT VENTURES, AND PARTNERS, AND THE OFFICERS, DIRECTORS, MEMBERS, EMPLOYEES, AGENTS, AND REPRESENTATIVES OF EACH OF THEM 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 AND ITS OFFICERS, DIRECTORS, MEMBERS, AGENTS, PARENT, SUBSIDIARIES, AFFILIATES, ANY RELATED COMPANIES, JOINT VENTURES, AND PARTNERS, AND THE OFFICERS, DIRECTORS, MEMBERS, EMPLOYEES, AGENTS, AND REPRESENTATIVES, OF EACH OF THEM, 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.
- 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 (INCLUDING NEGLIGENCE), 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.
For Members, the arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Consumer Arbitration Rules then in effect, except as modified by this Section 21. For Activity Providers, the arbitration will be administered by the AAA in accordance with the Commercial Arbitration Rules then in effect, except as modified by this Section 21. (The Consumer Arbitration Rules and Commercial Arbitration 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 21 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 21 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.
- LIMITATION ON TIME TO FILES A CLAIM
- CALIFORNIA RESIDENTS; CONSUMER COMPLAINTS
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 email@example.com. 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 by email 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.
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.
If you have any questions about this Agreement, please contact us at firstname.lastname@example.org with “Agreement – Question” as the subject line of the email or you may contact us at: