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Wellian™ @home Terms of Use

Last revised on: January 13, 2021

THE PLATFORM (DEFINED BELOW) IS MERELY A COMMUNICATION AND EDUCATIONAL TOOL AND WELLIAN DOES NOT PROVIDE MEDICAL OR PROFESSIONAL ADVICE OR DIAGNOSES. IN THE CASE OF AN EMERGENCY, CONTACT 911 IMMEDIATELY.

PLEASE CONSULT YOUR HEALTH CARE PROVIDER BEFORE MAKING ANY HEALTHCARE DECISIONS OR FOR GUIDANCE ABOUT A SPECIFIC MEDICAL CONDITION. WELLIAN EXPRESSLY DISCLAIMS RESPONSIBILITY, AND SHALL HAVE NO LIABILITY FOR ANY DAMAGES, LOSS, INJURY, OR LIABILITY WHATSOEVER SUFFERED AS A RESULT OF YOUR RELIANCE ON THE INFORMATION CONTAINED IN THE PLATFORM. WELLIAN DOES NOT ENDORSE ANY TEST, TREATMENT, PHYSICIAN, PRODUCT, PROCEDURE, OPINION, OR OTHER INFORMATION MENTIONED ON THE PLATFORM. DO NOT DISREGARD MEDICAL ADVICE OR DELAY IN SEEKING IT BECAUSE OF SOMETHING YOU HAVE READ ON THE PLATFORM.

Wellian Home Solution (the “Platform”) is an Alexa Skill made available to users within Amazon’s cloud-based voice service Alexa (“Alexa”). The Platform and the information contained therein are copyrighted works belonging to Wellian, Inc. (“Wellian”, “us”, “our”, and “we”). Certain features of the Platform may be subject to additional guidelines, terms, or rules, which will be presented within Alexa as applicable in connection with such features. All such additional terms, guidelines, and rules are incorporated by reference into these Terms.

These Terms of Use (these “Terms”) set forth the legally binding terms and conditions that govern your use of the Platform. By accessing or using the Platform, you are accepting these Terms (on behalf of yourself or the entity that you represent), and you represent and warrant that you have the right, authority, and capacity to enter into these Terms (on behalf of yourself or the entity that you represent). If you do not agree with all of the provisions of these Terms, do not access and/or use the Platform.

THESE TERMS REQUIRE THE USE OF ARBITRATION (SECTION 8.2) ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMIT THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.

RELIANCE ON ANY INFORMATION PROVIDED BY WELLIAN, WELLIAN EMPLOYEES, WELLIAN PARTNERS, OTHERS APPEARING ON THE PLATFORM IS SOLELY AT YOUR OWN RISK.

1. ACCOUNTS

1.1 Account Creation. In order to use certain features of the Platform, you must accept our Terms of Service and Privacy Policy, which is presented upon enabling the Platform skill in your Amazon account or Alexa application. Once, the Platform is enabled, your account (“Account”) will be setup. You represent and warrant that: (a) all required account information you submit is truthful and accurate; and (b) you will maintain the accuracy of such information. By utilizing the Platform, you consent to share your email address with Wellian for any Platform related notices we send. You may control your email addresses in your Amazon account or the Alexa application. You may delete your Account at any time, for any reason, by following the instructions on the Platform. Wellian may suspend or terminate your Account in accordance with Section 7.

You may not create an account, access or use the Platform, or accept the Terms if you are 13 years old or younger. We do not knowingly allow children under the age of 13 to create accounts that allow access to secure features and functionality of the Platform. The platform is not intended or designed to attract children under the age of 13. We do not collect personally identifiable information from any person we know to be under the age of 13. If you have reason to believe that information has been collected on children under the age of 13, please contact us at privacy@wellian.com.

1.2 Account Responsibilities. You are responsible for maintaining the confidentiality of your Account login information and are fully responsible for all activities that occur under your Account. You agree to immediately notify Wellian of any unauthorized use, or suspected unauthorized use of your Account or any other breach of security via support@wellian.com. Wellian cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements.

During the subscription process, you must provide your email address associated with your Amazon Alexa Account, otherwise the invite link you receive from Wellian for the Platform will not work. We are not responsible for any delay in your access to the Platform because you failed to provide the correct email address.

1.3 Account Security. We use commercially reasonable security measures to provide a safe and secure Platform. Our collection, use and sharing of your personal information is governed by our Privacy Policy and relevant regulations. The Platform uses industry standard security measures to ensure that your personal information is secure. Even with our safety measures, we cannot guarantee unauthorized third-party use of information will not occur and you acknowledge that you enter your information with this inherent risk.

2. ACCESS TO THE PLATFORM

2.1 License. Subject to these Terms, Wellian grants you a non-transferable, non-exclusive, revocable, limited license to use and access the Platform solely for your own personal, noncommercial use.

2.2 Certain Restrictions. The rights granted to you in these Terms are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Platform, audio, or scripts, whether in whole or in part, or any content delivered on the Platform; (b) you shall not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Platform, audio, or scripts; (c) you shall not access the Platform, audio, or scripts in order to build a similar or competitive website, application, product, or service; and (d) except as expressly stated herein, no part of the Platform, audio, or scripts may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means. Unless otherwise indicated, any future release, update, or other addition to functionality of the Platform, audio, or scripts shall be subject to these Terms. All copyright and other proprietary notices on the Platform (or on any content displayed on the Platform) must be retained on all copies thereof.

2.3 Modification. Wellian reserves the right, at any time, to modify, suspend, or discontinue the Platform (in whole or in part) with or without notice to you. You agree that Wellian will not be liable to you or to any third-party for any modification, suspension, or discontinuation of the Platform or any part thereof.

2.4 No Support or Maintenance. You acknowledge and agree that Wellian will have no obligation to provide you with any support or maintenance in connection with the Platform.

2.5 Ownership. You acknowledge that all the intellectual property rights, including copyrights, patents, trademarks, and trade secrets, on the Platform and its content are owned by Wellian or Wellian’s suppliers. Wellian owns all comments, suggestions, ideas and other feedback that you provide. You also agree that Wellian owes no duty or obligation to you should you submit any comment, suggestion, idea, or other feedback and that Wellian may use any submission without attribution or compensation to you. Neither these Terms (nor your access to the Platform) transfers to you or any third party any rights, title or interest in or to such intellectual property rights, except for the limited access rights expressly set forth in Section 2.1. Wellian and its suppliers reserve all rights not granted in these Terms. There are no implied licenses granted under these Terms.

2.6 User Questions / Communication. The Platform includes features by which users can submit questions to the Platform or communicate with the user’s healthcare provider through the Platform (collectively, “User Content”). Your User Content includes any information or content provided to us by a third-party service, such as your healthcare provider. You represent that you have all rights and permissions necessary to submit User Content to us, that your User Content is accurate, and that your User Content is not subject to any confidentiality obligations or in violation of the Code of Conduct. In addition, you represent and warrant that any User Content submitted by you does not violate or infringe upon any copyright, right of privacy, trademark, patent, trade-name, performing right or any literary, dramatic, musical, athletic, personal, private, civil, contract, or property right or any other right of any person, firm, or corporation, or contain any libelous, slanderous material, or material that violates any local, state, or federal law, rule, or regulation.

2.7 Third-Parties. As mentioned above, the Platform uses Alexa to communicate with you. Wellian does not have any control over your use of Alexa or the quality or accuracy of your communication with Alexa. You agree and understand that Wellian is not responsible for any malfunctions, failures, or other technical problems with Alexa, regardless of what caused such issue. Wellian also uses the services of third-parties to permit you to subscribe to the Platform. Your interactions with those third-parties are subject to the Terms of Use and Privacy Policies of those third-parties and not Wellian. Any issues you have with any third-party must be raised directly with them.

2.8 Code of Conduct. You agree to comply with the following requirements (our “Code of Conduct”) when you use the Platform:

(a) You will comply with your obligations to third-party platform providers, such as Amazon, from whom you access the Platform;

(b) You will not attempt to obtain Login Information or access another person’s account, collect or harvest personal information from other users;

(d) You will not use the Platform for any unauthorized commercial purpose, including but not limited to commercial advertisement or solicitation;

(e) You will only use the Platform on your own behalf;

(f) You will not use or design exploits, automation software, bots, hacks, mods or any unauthorized software designed to modify or interfere with the Platform;

(g) You will not to disrupt or attempt to disrupt the Platform or any other person’s use or enjoyment of the Platform;

(h) You will not attempt to gain unauthorized access to the Platform, to accounts registered to others, or to networks from which portions of the Platform are provided, including by circumventing or bypassing robot exclusion headers or security mechanisms for the Platform;

(i) You will not use any service or software that accesses, intercepts, “mines,” or otherwise collects information from the Platform or that is in transit from or to the Platform;

(j) You will not make any automated use of the Platform or take any action that imposes an unreasonable burden on our infrastructure;

(k) You will not use any software, technology, or device to send content or messages, scrape, spider, or crawl the Platform, or harvest or manipulate data from the Platform;

(l) You will not override any security feature or restrictions on use of the Platform that we may implement;

(m) You will not improperly use our support services, including by submitting false reports;

(n) Except where permitted by law or relevant open source licenses, you will not modify, reverse engineer, decompile, disassemble, decipher or otherwise try to derive the source code for the Platform; and

(o) Except where permitted by law, you will not copy, record, modify or distribute content from the Platform except as specifically authorized by us.

Failure to comply with this Code of Conduct may result in the suspension or termination of your account.

3. INDEMNIFICATION. You agree to indemnify and hold Wellian (and its officers, employees, and agents) harmless, including costs and attorneys’ fees, from any claim or demand made by any third party due to or arising out of (a) your use of the Platform, (b) your violation of these Terms or (c) your violation of applicable laws or regulations. Wellian reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate with our defense of these claims. You agree not to settle any matter without the prior written consent of Wellian. Wellian will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.

4. THIRD-PARTY LINKS & ADS; OTHER USERS

4.1 Third-Party Links & Ads. The Platform may contain command opportunities to link users to third-party websites and services, and/or present advertisements for third-parties (collectively, “Third-Party Opportunities & Ads”). Such Third-Party Opportunities & Ads are not under the control of Wellian, and Wellian is not responsible for any Third-Party Opportunities & Ads. Wellian provides access to these Third-Party Opportunities & Ads only as a convenience to you, and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Opportunities & Ads. You use all Third-Party Opportunities & Ads at your own risk and should apply a suitable level of caution and discretion in doing so. When you use any of the Third-Party Opportunities & Ads, the applicable third-party’s terms and policies apply, including the third-party’s privacy and data gathering practices. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction in connection with such Third-Party Opportunities & Ads.

4.2 Third-Party Users. Your interactions with other Platform users (i.e., your healthcare provider) are solely between you and such users. You agree that Wellian will not be responsible for any loss or damage incurred as the result of any such interactions. If there is a dispute between you and any Platform user, we are under no obligation to become involved.

5. WARRANTY DISCLAIMERS

THE PLATFORM IS PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS, AND WELLIAN (AND OUR SUPPLIERS) EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ALL WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT. WE MAKE NO WARRANTY THAT THE PLATFORM WILL MEET YOUR REQUIREMENTS, WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS, OR WILL BE ACCURATE, RELIABLE, FREE OF VIRUSES OR OTHER HARMFUL CODE, COMPLETE, LEGAL, OR SAFE. IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE PLATFORM, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF FIRST USE.

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.

6. LIMITATION ON LIABILITY

TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL WELLIAN BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFITS, LOST DATA, OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO THESE TERMS OR YOUR USE OF your use of, OR INABILITY TO USE, THE PLATFORM, EVEN IF WELLIAN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACCESS TO, AND USE OF, THE PLATFORM IS AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR DEVICE OR COMPUTER SYSTEM, OR LOSS OF DATA RESULTING THEREFROM.

TO THE MAXIMUM EXTENT PERMITTED BY LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO THE AMOUNTS YOU HAVE PAID TO WELLIAN IN THE SIX (6) MONTHS PRECEDING THE DATE THE EVENTS GIVING RISE TO THE CLAIM OCCURRED. IF YOU HAVE NOT PAID AY AMOUNTS TO WELLIAN IN THE SIX (6) MONTHS PRECEDING THE ACCRUAL OF SUCH CLAIM, YOUR SOLE REMEDY SHALL BE TO STOP USING THE PLATFORM. THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT. YOU AGREE THAT OUR SUPPLIERS WILL HAVE NO LIABILITY OF ANY KIND ARISING FROM OR RELATING TO THIS AGREEMENT.

SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.

Where our liability cannot be limited or excluded by applicable law, our liability to you is limited, to the extent permitted by applicable law, to:

1. in the case of goods supplied to you, the replacement of the goods or the supply of equivalent goods (or the payment of the cost to you of the replacement or supply), or the repair of the goods (or the payment of the cost to you of the repair); and

2. in the case of services supplied to you, the supply of the services again or the payment of the cost to you of having the services supplied again,

3. and you agree it is fair and reasonable, in all the circumstances, for our liability to be limited in this way.

7. TERM AND TERMINATION. Subject to this Section, these Terms will remain in full force and effect while you use the Platform. We may suspend or terminate your rights to use the Platform (including your Account) at any time for any use of the Platform in violation of these Terms. Upon termination of your rights under these Terms, your Account and right to access and use the Platform will terminate immediately. Wellian will not have any liability whatsoever to you for any termination of your rights under these Terms, including for termination of your Account, or any obligation to refund to you any fee you may have paid Wellian.

You may terminate your Account with Wellian by sending us an email to support@wellian.com. Should you terminate your Account before the expiration of your current subscription period, you will not be entitled to any refund for any unused portion of your subscription.

Even after your rights under these Terms are terminated, the following provisions of these Terms will remain in effect: Sections 2.2 through 2.5 and Sections 3, and 5 through 8.

8. GENERAL

8.1 Changes. These Terms are subject to occasional revision, and if we make any substantial changes, we may notify you by sending you an e-mail to the last e-mail address you provided to us (if any), and/or by prominently presenting notice of the changes on our Platform, within your Amazon account, or within the Amazon Alexa application. You are responsible for providing us with your most current e-mail address. In the event that the last e-mail address that you have provided us is not valid, or for any reason is not capable of delivering to you the notice described above, our dispatch of the e-mail containing such notice will nonetheless constitute effective notice of the changes described in the notice. Any changes to these Terms will be effective upon the earlier of thirty (30) calendar days following our dispatch of an e-mail notice to you (if applicable) or thirty (30) calendar days following our posting of notice of the changes on our Platform. Continued use of our Platform following notice of such changes shall indicate your acknowledgement of such changes and agreement to be bound by the terms and conditions of such changes.

8.2 Dispute Resolution. Please read this Arbitration Agreement carefully. It is part of your contract with Wellian and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.

(a) YOU AND WELLIAN AGREE EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS AND YOU MAY NOT CONSOLIDATE YOUR CLAIM WITH ANY OTHER PERSON’S AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING.

(b) ANY SUCH CONTROVERSY OR CLAIM WILL BE SETTLED UPON BINDING ARBITRATION IN ACCORDANCE WITH THE CONSUMER ARBITRATION RULES OF THE AMERICAN ARBITRATION ASSOCIATION. To start an arbitration proceeding, use the form on AAA’s website (www.adr.org) or call the AAA at 1-800-778-7879.

(c) ANY SUCH CONTROVERSY OR CLAIM SHALL BE ARBITRATED ON AN INDIVIDUAL BASIS. THE ARBITRATION WILL BE CONDUCTED IN DENVER COUNTY, COLORADO, AND JUDGMENT ON THE ARBITRATION MAY BE ENTERED INTO ANY COURT HAVING JURISDICTION THEREOF. THE AWARD OF THE ARBITRATION SHALL BE FINAL AND BINDING UPON THE PARTIES WITHOUT REVIEW EXCEPT AS PERMITTED BY COLORADO LAW. NOTWITHSTANDING THE ABOVE, EITHER PARTY MAY SEEK ANY INTERIM OR PRELIMINARY INJUNCTIVE RELIEF FROM ANY COURT OF COMPETENT JURISDICTION, AS NECESSARY TO PROTECT THE PARTY’S RIGHT OR PROPERTY PENDING COMPLETION OF ARBITRATION.

(d) To initiate arbitration or any legal proceeding against Wellian, you must serve initiating documents on Wellian’s registered agent for service of process at: 2060 Broadway Suite B1, Boulder, Colorado 80302.

8.3 Applicable Law. You agree that these Terms of Use shall be deemed to have been made and executed in the State of Colorado, U.S.A. and that any dispute arising under the Terms of Use, as well as any other dispute or claim that may arise between you and us, shall be governed by and resolved in accordance with the laws of the State of Colorado, without regard to conflict of law provisions or principals.

For claims not required to be arbitrated or in the event the arbitration provision is deemed unenforceable or voided, you agree that any claim asserted in any legal proceeding by you against us shall be commenced and maintained exclusively in any state or federal court located in Boulder County, Colorado having subject matter jurisdiction with respect to the dispute between the parties and you hereby consent to the exclusive jurisdiction of such courts. In any dispute arising between us, the prevailing party will be entitled to attorneys’ fees and expenses.

8.4 Export. The Platform may be subject to U.S. export control laws and may be subject to export or import regulations in other countries. You agree not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from Wellian, or any products utilizing such data, in violation of the United States export laws or regulations.

8.5 Electronic Communications. The communications between you and Wellian use electronic means, whether you use the Platform or send us emails, or whether Wellian posts notices on the Platform or communicates with you via email. For contractual purposes, you (a) consent to receive communications from Wellian in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Wellian provides to you electronically satisfy any legal requirement that such communications would satisfy if it were be in a hardcopy writing. The foregoing does not affect your non-waivable rights.

8.6 Entire Terms. These Terms constitute the entire agreement between you and us regarding the use of the Platform. Our failure to exercise or enforce any right or provision of these Terms shall not operate as a waiver of such right or provision. The section titles in these Terms are for convenience only and have no legal or contractual effect. The word “including” means “including without limitation”. If any provision of these Terms is, for any reason, held to be invalid or unenforceable, the other provisions of these Terms will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Wellian may freely assign these Terms. The terms and conditions set forth in these Terms shall be binding upon assignees.

8.7 Copyright/Trademark Information. All trademarks, logos and service marks (“Marks”) displayed on the Platform are our property or the property of other third parties. You are not permitted to use these Marks without our prior written consent or the consent of such third party which may own the Marks.

8.8 Contact Information. To contact us, email support@wellian.com or send mail to 2060 Broadway Street, Suite B-1; Boulder, CO 80302.

Terms