Wellbeats Terms and Conditions

Last Updated:  October 6th, 2020

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

Wellbeats Terms and Conditions

 

  1. DEFINITIONS
    1. Change of Control” means (i) the sale of all or substantially all of either parties assets; or (ii) a merger, consolidation or similar transaction providing for the acquisition of the direct or indirect ownership of more than fifty percent (50%) of either parties shares or similar equity interests.
    2. “Content” means those products, software, online platforms, streaming content, content, subscription services and any other related products or services offered by Wellbeats and purchased by you. Wellbeats may at any time and in our sole discretion: (i) add or delete Content; (ii) discontinue the sale or offer of Content, or otherwise render or treat as obsolete any of the Content and (iii) modify the design, features or provision of any of the Content in any manner that we deem necessary or desirable.  Should any Content be discontinued, it will be replaced by a similar or updated Content Service.
    3. Initial Term” is defined as twelve months from the time the products are available for use by authorized individuals.
    4. Members” means individuals granted access to our Content and have who has also agreed to the Wellbeats End User License Agreement and Wellbeats Privacy Policy.
  1. TERM AND TERMINATION
    1. After the Initial Term, this contract will automatically renew on an annual basis unless you provide written notice of termination to us at least 30 days in advance of the renewal date.
    2. Upon termination, your access to any Content will be removed and we will discontinue providing any support or other services to you.
    3. This contract will remain in force should Wellbeats or you undergo a change of control event.
  1. PROPRIETARY RIGHTS.
    1. You acknowledge that Wellbeats owns all proprietary rights and copyrights to the Content and all artwork, graphics, advertising, trademarks, video feed, copyrights and names used in conjunction with our Content.
    2. Nothing provided herein shall be construed as an assignment or grant by Wellbeats of any of our proprietary rights or copyrights to you.
    3. All trademarks, trade names, designs and logos and all associated goodwill existing and arising in the future shall be and remain our property or the property of any third party we licensed with to provide it to you.
  1. CONTENT LICENSE.
    1. In connection with the Content provided to you by us, we grant to you a limited, non-exclusive, non-transferrable, non-perpetual, license to access the Content.
    2. Content is accessible through an application (“App”) or HTML5 portal (“Website”). With a streaming license your Members will be able to access the Content via PC, tablet or other mobile devices or smart phones for personal use.
    3. With a Wellbeats facility license the content may be made accessible on a Wellbeats kiosk device or on your own equipment.
    4. Content may only be used by the Members of your group, company or organization that you authorize (i.e., employees, dependents and/or any other designated users).
    5. You may not broadcast or otherwise use the Content commercially without a Wellbeats facility license.
    6. Wellbeats reserves all rights to modify, remove or otherwise change any of the content provided through the Content.  Depending on the subscription level of Content purchased, we may, from time to time, update classes or packages.  We, in our sole discretion and at any time, may discontinue certain classes or third-party providers of classes available to the Members.
    7. Additional fitness and other video packages, including content provided by third parties, may be made available by Wellbeats for additional license fees. This additional content will not be provided to your Members and you will not be charged for this content without your prior written agreement.
    8. We develop and provide various materials to assist you and Members. These materials may be updated at any time and are available to you free of charge.  The materials can be found at the following link:  https://wellbeats.com/customer-resources/
  1. USAGE RESTRICTIONS.  You shall not (and you shall not authorize or permit your Members or third parties associated with you to do any of the following:  (a) translate, disassemble, decompile, decode, reverse engineer, or cause or allow discovery of the source code of the System; (b) remove, obscure, or alter the titles, copyright notices, trademarks, logos, trademark notices, patent notices or other proprietary or restricted rights, notices, affixed to or contained in the System; (c) make any claim or representation of ownership or deny or challenge our ownership of the Content; (d) use the Content in any manner that violates any local, state, federal or international law, rule, regulation or ordinance; (e) use, copy, modify, or prepare derivative works of our Content; or (f) disclose, demonstrate, distribute, sell, lease, sublicense, lend, give, share, transfer, assign or otherwise make all or any portion of our Content available to any natural person, corporation, or other entity.
  2. ACCESSING CONTENT SERVICES.
    1. All Members must accept Wellbeats’ End User License Agreement (EULA) at www.wellbeats.com/eula/ prior to accessing the Content. To access the Content, Members must be connected to the Internet and require an effective bandwidth of at least 5 Mbps. Failure to maintain the specified Internet connection requirements may result in your Member’s inability to access the Content. For Members who fail to maintain an adequate Internet connection, the quality and availability of the Content will be affected.
    2. Any suspension, interruption, or unavailability of your Member’s or your commercial facility’s (if applicable) Internet service will not reduce your fee(s) for Content.
    3. You or your Member’s are responsible for all costs and any other charges or expenses charged by your Internet service provider.
  1. PAYMENT TERMS AND CONTENT SUSPENSION.
    1. Pricing is based on the total number of Members and/or your facility license(s).
    2. Billing and Payments may be made on a monthly or annual basis.
    3. Payment is due Net 30 days from the date on the invoice.
    4. Billing questions can be sent to the Wellbeats billing team at: billing@wellbeats.com
    5. Overdue payments may be charged interest at the lesser of 1.5% per month or the maximum interest allowed by law.
    6. If you are outside the U.S., you must use a credit card for all payments and are responsible for all changes in exchange rates.  Upon 10 days’ written notice to you for failure to make a payment, we may suspend all Content until payment is made.  We will not reimburse or provide a pro-rated amount for any suspended time during the month for failure to pay for Content or any other lapse in Content.
    7. You may be charged a fee of up to $100 to reinstate Content after a suspension.
    8. If we are required to retain a collection agency or attorney to collect overdue payment, all reasonable collection costs, including attorney fees, are payable by you.
    9. After the initial twelve-month term we may increase fees for Content upon 30 days’ written notice to you. You will be able to terminate the contract if you do not agree with increase. Any annual increase will not exceed 3%.
    10. As applicable, all deposits and payments made for hardware are nonrefundable.
    11. Updates to your contact information due to a change in ownership can be made securely at the following URL: https://analytics.clickdimensions.com/wellbeatscom-acccm/pages/czjhwjoeeeqoeqanok2t4w.html
    12. Updates to your payment information can be made securely at the following URL:

https://wellbeats.formstack.com/forms/billing_payment_authorization

  1. TAXES AND OTHER CHARGES.
    1. You are responsible to pay any and all foreign, federal, state, municipal, or other government excise, duty, sales, use or occupational taxes or charges now in force or enacted in the future that we may be required to collect or pay for access to the Content provided, not including taxes based on our income.
    2. If applicable, we may invoice appropriate amounts for any taxes related to the Content we provide to you, unless you provide a valid tax exemption certificate authorized by the appropriate taxing authority.
  1. COLLECTION AND USE OF MEMBER DATA.
    1. Wellbeats will collect certain information from Members to provide customized Content, including, but not limited to a Member’s first name, last name, email address, user name and password (to set up a registered account for the Content), age, gender, fitness level, fitness goals, and through the continued use of the Content, Wellbeats will collect information on Members’ use of Content, Member’s preferences, activities and log any additional information input by each Member (collectively “Member Data”).
    2. Wellbeats will process and use the Member Data for the sole and exclusive purpose of providing the Content.  We will: (a) keep and maintain Member information in strict confidence, using such degree of care as is appropriate and consistent with its obligations under applicable law to avoid unauthorized access, use, disclosure, or loss; (b) use and disclose Member Data solely and exclusively for the purpose of providing the Content, such use and disclosure being in accordance with this agreement, and applicable law; and, (c) not use, sell, rent, transfer, distribute, or otherwise disclose or make available Member Data for our own purposes. Wellbeats may use Member Data in aggregate, non-identifiable form, to evaluate, improve, or otherwise modify the Content.  We use a combination of databases to ensure that the data is not combined to constitute protected health information and that Member Data cannot be extracted by a third party in its entirety.
    3. All information collected from Members will be collected in compliance with Wellbeats’ Privacy Policy at wellbeats.com/privacyand these Terms and Conditions.
  1. TECHNOLOGY SECURITY AND BACKUP.
    1. All Content will be provided through a cloud-based server that has received a recognized independent certification or equivalent independent audit to help ensure the confidentiality, integrity and availability of the Content.
    2. All access and collection of Member Data will be transmitted using approved and recognized encryption methods and all Member Data will be encrypted when in transit and at rest.
    3. Full backups of the Content and Member Data are performed daily, with incremental backups throughout the day. Backups are encrypted and then transferred and stored in real time to an offsite storage facility within the United States.
    4. No Member Data will be stored outside of the United States.
    5. Wellbeats uses commercially reasonable best practices to prevent the insertion of any viruses or similar types of malware into our Content.
  1. WARRANTIES AND WARRANTY DISCLAIMERS.  We represent and warrant that (a) we will comply with all applicable state or federal laws and regulations regarding the use of the Content; and (b) the Content will not knowingly contain any viruses, worms, Trojan horses, or other malicious code specifically designed to permit unauthorized access to devices or equipment. WE DO NOT WARRANT THAT THE CONTENT WILL MEET YOUR REQUIREMENTS, PROVIDE UNINTERRUPTED USE, OR OPERATE AS REQUIRED, WITHOUT DELAY, OR WITHOUT ERROR.  OTHER THAN THE WARRANTIES EXPRESSLY SET FORTH IN THESE TERMS, WE DISCLIAM ALL OTHER WARRANTIES, EXPRESS, IMPLED OR STATUTORY, INCLUDING WARRANTIES OF MERCHANTIABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
  2. LIABILITY.  Except for gross negligence or willful misconduct by Wellbeats, neither we nor any of our affiliates or agents shall have any liability whatsoever for any damage, loss, or destruction to any of your systems as a result of the use of the Content.  When you or your Members use certain features of the Content, such as online features, you may require special software, anti-malware or similar applications to protect your equipment and software or to access the Internet.  It is your sole responsibility to take appropriate precautions to protect any computer and other hardware of yours from damage to your software, files, and data as a result of any such virus or other harmful feature. Wellbeats does not represent, warrant, or covenant that access to our Content will not cause the loss of files or disrupt the normal operations of any equipment, including but not limited to your computers.  For these and other reasons, you acknowledge and understand the importance of backing up all files to another storage mechanism prior to such activities.  You understand and accept the risks if you decide not to back up your files.
  3. LIMITATIONS OF LIABILITY.  WELLBEATS SHALL HAVE NO LIABILITY WHATSOEVER FOR ANY DAMAGE TO OR LOSS OF ANY HARDWARE, SOFTWARE, FILES, OR DATA RESULTING FROM A VIRUS OR OTHER CAUSE.  EACH PARTY SHALL NOT HAVE ANY LIABILITY TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL, SPECIAL, TREBLE, PUNITTIVE, EXEMPLARY, OR CONSEQUENTIAL LOSSES OR DAMAGES (INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, LOSS OF EARNINGS, LOSS OF BUSINESS OPPORTUNITIES, PERSONAL INJURIES OR DEATH).  WELLBEATS SHALL HAVE NO LIABILITY TO YOU OR ANY OTHER PERSON FOR DIRECT DAMAGES ARISING FROM OR RELATED TO YOUR USE OF THE CONTENT SERVICES, OR LOSS OF INFORMATION OR DATA.  IN NO EVENT SHALL WELLBEATS BE LIABLE TO YOU FOR ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT IN AN AGGREGATE AMOUNT EXCEEDING THE AMOUNTS ACTUALLY PAID TO US BY YOU.
  1. INDEMNIFICATION.  We will indemnify and defend you from claims, losses or damages relating to or arising out of third-party claims that the Content infringe a third party’s intellectual property rights and from our breach of these Terms and Conditions.  You will indemnify and defend us from third-party claims, losses or damages relating to or arising out of your breach of these Terms and Conditions, the use or misuse of the Content by you, and any misrepresentation made to Members regarding the Content, or the violation of any applicable law.
  2. SOLE REMEDIES.  Your sole and exclusive remedies are as expressly set forth in these Terms and Conditions.  Certain of the exclusions may not apply if your state does not allow for the exclusion or limitation of implied warranties or does not allow for limitation or exclusion of incidental or consequential damages.  In those states, the liability of Wellbeats and our affiliates and agents is limited to the maximum extent such limitations are permitted by law.
  3. MISCELLANEOUS
    1. Relationship of the Parties.  These Terms and Conditions do not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between you, your Members and us.
    2. Promotion. By using the Content, you consent to our use of your name, trademark and logo to identify you as one of our representative Customers on our website, social media pages and other electronic or printed promotional materials. You agree to only use approved WELLBEATS™ advertising materials to promote the Content and make no representations to Members regarding their use or access to the Content.
    3. No Waiver.  The failure or delay of Wellbeats at any time to require performance of any provision of these Terms and Conditions or to exercise any right provided for herein shall not be deemed a waiver of such provision or such right.  All waivers must be in writing.  Unless the written waiver contains an express statement to the contrary, no waiver by Wellbeats of any breach of any provision of these terms or of any right provided for herein, shall be construed as a waiver of any continuing or succeeding breach of such provision, a waiver of the provision itself, or a waiver of any right under these Terms and Conditions.
    4. Severability.  If any provision of these Terms and Conditions is held by a court of competent jurisdiction from which no appeal can be or is taken to be contrary to law, or invalid for any other reason, the provision shall be modified by the court so as to accomplish the intent and objectives of the parties to the fullest extent permitted by law and the remaining provisions of these Terms shall remain in effect.  If the court is not able to craft such an alternative provision, then the remainder of these Terms and Conditions shall be construed in a way that most closely reflects the original intent of the parties.
    5. Assignment.  You may not sell, assign, license or sublicense or otherwise convey in whole or in part, by operation of law or otherwise, to any third party this agreement or any rights granted under this Agreement.
    6. Governing Law.  These Terms and Conditions shall be governed by and construed in accordance with the laws of the State of Minnesota and where applicable, the United States of America without regard to the principles of conflicts of law.  The parties hereby consent to the jurisdiction of and venue in the Supreme Court of the State of Minnesota, State of Minnesota District Court, Hennepin County, or the United States District Court of the District of Minnesota.  Furthermore, both parties hereby consent to have any claim litigated in such court and waive any and all defenses as to jurisdiction and venue.  You hereby irrevocably waive to the fullest extent permitted by law any and all rights to trial by jury in any legal proceeding arising out of or relating to these Terms and Conditions or the transactions contemplated hereunder.
    7. Force Majeure.  Neither party shall be liable or deemed in default for any delay or failure in performance or interruption of service resulting directly or indirectly from acts of God, civil or military authority, acts of public enemy, war, riots, acts of terror, civil disturbances, insurrections, accidents, fire, explosions, earthquakes, floods, the elements or any other cause beyond our reasonable control.
    8. Survival of Limitations.  All representations, warranties, indemnifications, and limitations of liability shall survive termination; any other obligations or the parties hereunder shall also survive, if they relate to the period before termination or if, by their terms, they would be expected to survive such termination.  All obligations to pay any amounts owned prior to the effective date of termination will survive termination.
    9. Entire Agreement.  These Terms and Conditions contain the entire understanding and agreement between you and us with respect to the subject matter hereof and supersedes all previous communications, negotiations and agreements, whether oral or written between the parties with respect to such subject matter.  No modification, amendment or wavier of any provision of this agreement shall be effective unless included in a written document signed by a representative of both parties.
    10. Notices. For questions concerning these Wellbeats Terms and Conditions, please contact Wellbeats via postal letter or email as noted below.

Wellbeats, Inc.

1660 South Highway 100

Suite 590

St. Louis Park MN, 55416

Attention: Legal

legal@wellbeats.com

HARDWARE PURCHASERS ONLY (When applicable)

  1. DISTRIBUTORS (Hardware Purchasers Only)
    1. We hereby grant to you a nonexclusive right to use such trademarks, trade names, designs and logos for the System use solely in connection with promotion of the Content at your location(s).
    2. You shall not adopt or use any other marks that would be misleading or confusingly similar to our trademarks, trade names, designs, and logos.  Your right to use these trademarks, trade names, designs and logos shall terminate immediately upon termination or expiration of this agreement.
    3. Wellbeats may include advertising, including third-party advertising, in connection with the Content.
    4. We retain all rights in data collected by and through the use of the Content as permitted by applicable law.
  1. EQUIPMENT PURCHASES
    1. All Equipment related to the Content can be purchased from our distributor or self-provided.
    2. Delivery terms, installation and setup will be supplied by our third-party providers. Installations performed by our third-party providers have a 30-day warranty on the installation.
    3. All Equipment purchased from us (including the kiosk and audio / video components) is provided with the manufacturer’s warranty, if any, for repair and replacement.  Once accepted by you (or its end user), any limited warranty provided with the Equipment will be non-transferrable and will be void upon transfer of ownership to a third party.
    4. Any equipment purchased through a third party will not be supported by Wellbeats and you assume all risks associated with unapproved third-party equipment.
    5. You are responsible for any and all costs associated with de-installation of the Equipment.
    6. Payment Terms for equipment purchases are 30 days net Freight On Board (FOB). For clarity, FOB is the date the equipment is shipped to the desired location.
  1. LIABILITY FOR SYSTEM (Hardware Purchasers Only).  Except for gross negligence or willful misconduct by Wellbeats, neither we nor any of our affiliates or agents shall have any liability whatsoever for any damage, loss, or destruction to any system as a result of the installation, self-installation, use, inspection, maintenance, repair and removal of any equipment purchased through Wellbeats. In the event of gross negligence or willful misconduct by Wellbeats, we shall pay for the repair or replacement of the damaged parts up to a maximum of the purchase price paid, as the sole remedy.  It is your sole responsibility to take appropriate precautions to protect any computer and other hardware of yours from damage to your software, files, and data as a result of any such virus or other harmful feature.  You are responsible for any failure to properly update the Content.  We do not represent, warrant, or covenant that access to our Content will not cause the loss of files or disrupt the normal operations of any equipment purchase through Wellbeats, including but not limited to your computers.  For these and other reasons, you acknowledge and understand the importance of backing up all files to another storage mechanism prior to such activities.  You understand and accept the risks if you decide not to back up your files.