The Terms of Service (“Terms”) govern your access and use of the software-as-a-service application (the “Wellsmith App”) that is owned or otherwise provided by Wellsmith, Inc. (hereinafter, “Wellsmith” or “we” of “us”), as well as the Wellsmith website (the “Site”) and any products, services, features or content enabled by the Wellsmith App or the Site (collectively, the “Services”). The Wellsmith App is designed to assist users, including health seeking consumers, patients and their healthcare providers, with monitoring patient progress with care plans using data collected by patient monitoring devices. Throughout these Terms, “you” or “your” refers to the end user of the Wellsmith App, Site and/or Services.
- License and Use. Subject to your compliance with these Terms, Wellsmith grants to you a limited, non-exclusive, non-transferable license to download and install a copy of the Wellsmith App on a mobile device that you own or control and to run such copy of the Wellsmith App solely for your personal and non-commercial uses. The Wellsmith App is licensed and not sold, and Wellsmith and its third party licensors, if any, reserve all rights not expressly granted to you, including any and all worldwide rights in or to all intellectual property rights in and to the Wellsmith App. Wellsmith and its third party licensors, if any, shall at all times retain all title to and ownership of the Wellsmith App and all copies, improvements, enhancements or modifications thereto.
- Modifications to these Terms. Wellsmith may modify these Terms from time to time, and any such modifications shall be effective upon posting by Wellsmith on the Wellsmith App. You agree to be bound to any changes to these Terms when you use the Wellsmith App after any such modification is posted. It is therefore important that you review these Terms each time before accessing the Wellsmith App to ensure that you are updated as to any changes. If you do not want to be bound by a modification to these Terms, you will need to terminate your account, if any, and refrain from using the Wellsmith App after that date. No other amendments will be valid unless they are in a paper writing signed by Wellsmith and by you.
- Modifications to the Wellsmith App. You understand and agree that Wellsmith may discontinue, modify or change, temporarily or permanently, the Wellsmith App or Services, or any portion thereof, at any time, without notice to you. Wellsmith makes no commitment to update the information and content on the Wellsmith App.
- Registration and Password. In consideration of your use of the Wellsmith App, you agree to provide true, accurate, and complete information about yourself as prompted by the Wellsmith App account registration. In addition, you agree to update that information in order to maintain its truth, accuracy, and completeness.
ALL CONTENT OR INSTRUCTIONS TRANSMITTED BY OR RECEIVED FROM ANYONE PRESENTING YOUR PASSWORD ON THE WELLSMITH APP WILL BE DEEMED BINDING ON YOU. You agree that you are solely liable for all actions taken via your password, whether or not made with your knowledge or authority. You agree to guard your password carefully, with the full awareness that a failure to keep it secure will enable others to engage in transactions through the Wellsmith App for which you will be legally responsible. If you suspect that someone may have obtained access to your password who is not intended to have authority to act on your behalf, please contact Wellsmith immediately to authorize Wellsmith to deny access to the Wellsmith App to anyone else presenting your password. Wellsmith reserves the right to disable any user name, password or other identifier, whether chose by you or provided by us, at any time if, in our sole opinion, you have violated these Terms.
- Termination. You understand and agree that Wellsmith, in its sole discretion, may terminate your account, direct you to cease using the Wellsmith App, and discontinue or restrict your access to the Wellsmith App, all without notice to you and for any reason. You agree that Wellsmith shall not be liable to you or to any third party for any modification, suspension, or discontinuance of the Wellsmith App, your status as an account holder, or any parts thereof.
- Intellectual Property Protection. The Wellsmith App and its entire contents, features, and functionality including but not limited to all information, software, text, artwork, designs, graphics, page headers, logos, button icons, images, audio clips, video clips, digital downloads, prices, product descriptions, data compilations, scripts, trade names, service names, trade dress, and the design, selection, and arrangement thereof (collectively, “Content”), is the property of Wellsmith, its licensors, or other third party providers, and is protected by U.S. and international trademark, copyright, and other intellectual property laws. You shall not copy, reproduce, distribute, alter, display, perform, publish, license, broadcast, transmit, create derivative works from, download, disassemble, decompile, or store such Content without the prior written consent of Wellsmith; provided, however, you may print or download one copy of a reasonable number of pages of the Wellsmith App for your own personal, non-commercial use and not for further reproduction, publication, or distribution. Systematic retrieval of data or other Content from the Wellsmith App to prepare any collection, compilation, database, or directory is strictly prohibited. The trademarks in the Content shall not be used, including as part of trademarks and/or as part of domain names, in connection with any product or service in any manner that is likely to cause confusion and may not be copied, imitated, or used, in whole or in part, without the prior written permission of Wellsmith or the respective trademark owners. EXCEPT AS EXPRESSLY PROVIDED HEREIN BY THESE TERMS, NEITHER WELLSMITH NOR ANY THIRD PARTY HAS CONFERRED UPON YOU BY IMPLICATION, ESTOPPEL, OR OTHERWISE, ANY LICENSE OR RIGHT UNDER ANY PATENT, TRADEMARK, COPYRIGHT, OR OTHER PROPRIETARY RIGHTS TO USE THE WELLSMITH APP. NO OWNERSHIP RIGHTS ARE OR WILL BE ASSIGNED TO YOU.
You grant Wellsmith a royalty-free, worldwide, transferable, sub-licenseable, irrevocable, perpetual license to use or incorporate into the Wellsmith App, Site and/or the Services any suggestions, enhancement requests, recommendations, correction or other feedback provided by you relating to the functionality and/or operation of the Wellsmith App, Site and/or the Services.
- Prohibited Uses. You may use the Wellsmith App only for lawful purposes and in accordance with these Terms Use. You agree not to use the Wellsmith App: in any way that violates any applicable federal, state, local or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the US or other countries); for the purpose of exploiting, harming or attempting to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information or otherwise; to send, knowingly receive, upload, download, use or re-use any material which does not comply with the Contribution Standards set out in these Terms; to transmit, or procure the sending of, any advertising or promotional material without Wellsmith’s prior written consent, including any “junk mail”, “chain letter” or “spam” or any other similar solicitation; to impersonate or attempt to impersonate Wellsmith, a Wellsmith employee, another user or any other person or entity (including, without limitation, by using e-mail addresses or screen names associated with any of the foregoing); or to engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Wellsmith App, or which, as determined by us, may harm the Wellsmith App or users of the Wellsmith App or expose them to liability.
Additionally, you agree not to: use the Wellsmith App in any manner that could disable, overburden, damage, or impair the Wellsmith App or interfere with any other party’s use of the Wellsmith App, including their ability to engage in real time activities through the Wellsmith App; use any robot, spider or other automatic device, process or means to access the Wellsmith App for any purpose, including monitoring or copying any of the material on the Wellsmith App; use any manual process to monitor or copy any of the material on the Wellsmith App or for any other unauthorized purpose without our prior written consent; use any device, software or routine that interferes with the proper working of the Wellsmith App; introduce any viruses, trojan horses, worms, logic bombs or other material which is malicious or technologically harmful; attempt to gain unauthorized access to, interfere with, damage or disrupt any parts of the Wellsmith App, the server on which the Wellsmith App is stored, or any server, computer or database connected to the Wellsmith App; attack the Wellsmith App via a denial-of-service attack or a distributed denial-of-service attack; or otherwise attempt to interfere with the proper working of the Wellsmith App.
- User Contributions. The Wellsmith App may contain features that allow users to post, submit, publish, display or transmit to other users or other persons (hereinafter, “post”) information or materials (collectively, “User Contributions”) on or through the Wellsmith App. Any User Contribution you post to the Wellsmith App will be considered non-confidential and non-proprietary. By providing any User Contribution on the Wellsmith App, you grant us 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: (A) You own or control all rights in and to the User Contributions and have the right to grant the license granted above to us; and (B) All of your User Contributions do and will comply with these Terms, including the Contribution Standards below.You understand and acknowledge that you are responsible for any User Contributions you submit or contribute, and you, not Wellsmith, have full responsibility for such information, including its legality, reliability, accuracy and appropriateness. We are not responsible, or liable to any third party, for the substance or accuracy of any User Contributions posted by you or any other user of the Wellsmith App.
- Contribution Standards. These contribution standards apply to any and all User Contributions. User Contributions must in their entirety comply with all applicable federal, state, local and international laws and regulations. Without limiting the foregoing, User Contributions must not: contain any material which is defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory or otherwise objectionable; promote sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation or age; infringe any patent, trademark, trade secret, copyright or other intellectual property or other rights of any other person; violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with these Terms; be likely to deceive any person; promote any illegal activity, or advocate, promote or assist any unlawful act; cause annoyance, inconvenience or needless anxiety or be likely to upset, embarrass, alarm or annoy any other person; impersonate any person, or misrepresent your identity or affiliation with any person or organization; involve commercial activities or sales, such as contests, sweepstakes and other sales promotions, barter or advertising; or give the impression that they emanate from or are endorsed by us or any other person or entity, if this is not the case.
- Monitoring and Enforcement. Wellsmith reserves the right to: remove or refuse to post any User Contributions for any or no reason in our sole discretion; take any action with respect to any User Contribution that we deem necessary or appropriate in our sole discretion, including if we believe that such User Contribution violates these Terms, including the Contribution Standards, infringes any intellectual property right or other right of any person or entity, threatens the personal safety of users of the Wellsmith App or the public or could create liability for Wellsmith; take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Wellsmith App; and terminate or suspend your access to all or part of the Wellsmith App for any or no reason, including without limitation, any violation of these Terms.
We do not undertake to review all User Contributions before they are posted on the Wellsmith App, 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 information 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 User Contributions violate your copyright, please send us a notice of the copyright infringement at email@example.com. It is the policy of Wellsmith to terminate the user accounts of repeat infringers.
Please include the following information in your written notice: (1) a detailed description of the copyrighted work that is allegedly infringed upon; (2) a description of the location of the allegedly infringing material on the Services; (3) your contact information, including your address, telephone number, and, if available, email address or other electronic address; (4) a statement by you indicating that you have a good-faith belief that the allegedly infringing use is not authorized by the copyright owner, its agent, or the law; (5) a statement by you, made under penalty of perjury, affirming that the information in your notice is accurate and that you are authorized to act on the copyright owner’s behalf; and (6) an electronic or physical signature of the copyright owner or someone authorized on the owner’s behalf to assert infringement of copyright and to submit the statement.
- Reliance on Information Posted. The information presented on or through the Wellsmith App 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 is strictly at your own risk. The information presented in the Wellsmith App is not intended to be a substitute for professional medical advice, diagnosis, or treatment. Always seek the advice of your physician or other qualified health provider with any questions you may have regarding a medical condition. Never disregard professional medical advice or delay in seeking it because of something you have read on the Wellsmith App. If you think you may have a medical emergency, call your doctor, go to the emergency department, or call 911 immediately. Wellsmith does not recommend or endorse any specific tests, physicians, products, procedures, opinions, or other information that may be mentioned on the Wellsmith App. We disclaim all liability and responsibility arising from any reliance placed on such materials by you or any other visitor to the Wellsmith App, or by anyone who may be informed of any of its contents.
- Online Purchases and Other Terms and Conditions. To the extent applicable, all purchases through the Wellsmith App are subject to our additional terms of sale as provided and posted on the Wellsmith App.
- Links to Other Sites. The Wellsmith App or Site may contain hyperlinks to third party websites that are not under the control of Wellsmith. Wellsmith is not responsible for any content in any advertisement or hyperlink on the Wellsmith App or Site or for any content in any hyperlinked website. If you access a third party website from the Wellsmith App or Site, then you do so at your own risk. A hyperlink to a third party website does not imply that Wellsmith endorses the content on or the business of the hyperlinked website. You are solely responsible for determining the integrity and reliability of the information in the advertisement or hyperlink on the Wellsmith App or Site as well as the information on the hyperlinked website. Wellsmith provides hyperlinks only as a convenience. Additionally, your dealings with or participation in promotions of advertisers found on the Wellsmith App or Site, including payment for and delivery of goods and services, and any other terms (such as warranties) are solely between you and such advertisers. You agree that Wellsmith shall not be responsible for any loss or damage of any sort relating to your dealings with such advertisers.
- Territorial Use and Export Control. You acknowledge that the Wellsmith App and Site are controlled in and originate from the United States. We provide the Wellsmith App and Site for use only by persons located in the United States. We make no claims that the Wellsmith App or any of its content is accessible or appropriate outside of the United States. Access to the Wellsmith App and Site may not be legal by certain persons or in certain countries. If you choose to access the Wellsmith App or Site from outside the United States, you do so on your own initiative, at your own risk, and you are responsible for compliance with applicable local laws.
- Disclaimer of Warranties. Wellsmith uses reasonable efforts to provide accurate, complete, and current information on the Wellsmith App and Site. However, Wellsmith does not guarantee or warrant that the Content therein is accurate, complete, timely, or free of technical or typographical errors. It is your responsibility to verify any information provided.
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE CONTENT ON THE WELLSMITH APP OR SITE IS AT YOUR SOLE RISK. THE CONTENT IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. WELLSMITH EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. WELLSMITH MAKES NO WARRANTY THAT THE CONTENT WILL MEET YOUR REQUIREMENTS, OR THAT ACCESS TO THE WELLSMITH APP OR SITE AND THE CONTENT WILL BE UNINTERRUPTED, TIMELY, SECURE, ACCURATE, VIRUS-FREE OR ERROR FREE; NOR DOES WELLSMITH MAKE ANY WARRANTY AS TO THE INFORMATION AND RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE WELLSMITH APP, SITE OR ANY SERVICES PROVIDED OR AS TO THE ACCURACY OR RELIABILITY OF ANY CONTENT. WELLSMITH MAKES NO WARRANTY REGARDING ANY INFORMATION OBTAINED FROM ANY HYPERLINKED THIRD PARTY SITE. NO INFORMATION OBTAINED BY YOU FROM THE WELLSMITH APP OR SITE SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
- Limitation of Liability. YOU AGREE THAT NEITHER WELLSMITH NOR ANY PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE WELLSMITH APP OR SITE SHALL BE RESPONSIBLE OR LIABLE FOR ANY DIRECT, INCIDENTAL, CONSEQUENTIAL, OR INDIRECT DAMAGES OR ANY DAMAGES WHATSOEVER ARISING OUT OF YOUR ACCESS, USE OR INABILITY TO USE THE WELLSMITH APP OR SITE, ANY PRODUCTS, SERVICES, OR CONTENT OFFERED OR PROVIDED ON THE WELLSMITH APP OR SITE, OR ANY HYPERLINKED THIRD PARTY WEBSITE OR ANY ERRORS OR OMISSIONS IN THE CONTENT THEREOF, ANY PERSON’S RELIANCE ON ANY INFORMATION OR CONTENT PROVIDED IN THE WELLSMITH APP OR SITE, WHETHER OR NOT THE INFORMATION IS CORRECT, CURRENT, OR COMPLETE, THE CONSEQUENCES OF ANY ACTION YOU OR ANY OTHER PERSON TAKE OR FAIL TO TAKE BASED ON CONTENT PROVIDED BY OR AS A RESULT OF THE USE OF THE WELLSMITH APP OR SITE.
YOU SPECIFICALLY AGREE THAT WELLSMITH IS NOT LIABLE FOR ANY CONDUCT BY YOU ASSOCIATED WITH THE WELLSMITH APP OR SITE , INCLUDING, BUT NOT LIMITED TO, ACTIVITIES RELATING TO ACCOUNT HOLDER’S ACCOUNT. WELLSMITH IS ALSO NOT RESPONSIBLE FOR ANY PROBLEMS OR TECHNICAL MALFUNCTION OF ANY TELEPHONE NETWORK OR LINES, COMPUTER ONLINE SYSTEMS, SERVERS OR PROVIDERS, COMPUTER EQUIPMENT, SOFTWARE, OR FAILURE OF ANY EMAIL DUE TO TECHNICAL PROBLEMS OR TRAFFIC CONGESTION ON THE INTERNET OR ON THE WELLSMITH APP, INCLUDING ANY INJURY OR DAMAGE TO ANY YOU, OR ANY OTHER PERSON’S COMPUTER RELATED TO OR RESULTING FROM USE OF THE WELLSMITH APP OR SITE.
IN NO EVENT SHALL WELLSMITH, ITS AGENTS, AND PROVIDERS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES RESULTING FROM THE USE OR THE INABILITY TO USE THE WELLSMITH APP OR SITE, OR FROM ANY INFORMATION, PRODUCTS OR SERVICES PURCHASED, OBTAINED, OR ACCESSED, OR FROM ANY MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH THE WELLSMITH APP OR SITE OR RESULTING FROM UNAUTHORIZED ACCESS TO OR ALTERATION OF TRANSMISSIONS OR DATA, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, USE, DATA, OR OTHER INTANGIBLE PROPERTY, WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF WELLSMITH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, WELLSMITH’S LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO WELLSMITH FOR THE ACCESS TO AND USE OF THE WELLSMITH APP.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
- Indemnity. You agree to indemnify and hold harmless Wellsmith, and its subsidiaries, affiliates, officers, employees, agents, and other partners against any and all claims and expenses, including attorneys’ fees, arising from your use of the Wellsmith App, Site or Services, any breach of these Terms, or breach of any third party’s rights. This indemnification shall survive any termination of your status as an account holder or use of the Wellsmith App. We reserve the right to control the defense of any claim for which we are entitled to indemnification under this section. In such event, you agree to provide us with such cooperation as is reasonably requested by us.
- Governing Law and Jurisdiction. Any claim relating to the use of the Wellsmith App and any Content shall be governed by the internal substantive laws of the State of Texas, without regard to its conflicts of laws rules. You expressly consent to the jurisdiction of the Texas state courts and U.S. federal courts located in Travis County, Texas for any such claim.
- Limitation on Time to File Claims. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THESE TERMS OR THE WELLSMITH APP MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
- Waiver and Severability. No waiver of by Wellsmith of any term or condition set forth in these Terms shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of Wellsmith to assert a right or provision under these Terms shall not constitute a waiver of such right or provision. If any provision of these Terms is held by a court or other tribunal of competent jurisdiction to be invalid, illegal or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of these Terms will continue in full force and effect.
- Comments and Concerns. All feedback, comments, requests for technical support and other communications relating to the Wellsmith App should be directed to firstname.lastname@example.org. You may also call us at 1-866-266-7795, Monday – Friday, 9 AM-5 PM, Eastern Standard Time (Closed weekends and holidays).