Terms of Use
Welcome to gWell!
gWell is a novel wellness and health platform, available through our mobile application (the “gWell App”) and our website at www.gwellhealth.com and its subdomains (“Website”) that helps individuals achieve their personal best in wellness and musculoskeletal health in connection with their genomic data.
These Terms of Use apply to the gWell App, Website and all services made available through the gWell App and our Website (collectively, including the gWell App and Website, “Services”). These Terms of Use are a legal agreement between you (“You” or “Your”) and gWell, Inc. (“gWell” or “we”, “us” or “our”), establishing terms and conditions under which You shall access and use the Services. The date You first agree to these Terms of Use is referred to herein as the “Effective Date.” Your use of the Services is also subject to our Privacy Policy available on our Website at www.gwellhealth.com/privacy-policy as such Privacy Policy may be updated from time to time. You acknowledge and agree that features and functionality of the Services are expected to change frequently.
Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms, and that, upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you. Please note that these Terms are between gWell and you, not Apple. gWell is solely responsible for the gWell App and any content produced on it.
If there are any conflicts between these Terms and the Apple Store Terms of Service, the Apple Store Terms of Service will apply.
BEFORE YOU CLICK ON THE “I ACCEPT” BUTTON OR OTHERWISE ACCESS THE WEBSITE OF GWELL APP OR USE THE SERVICES, CAREFULLY READ THESE TERMS OF USE. BY CLICKING ON THE “I ACCEPT” BUTTON, DOWNLOADING THE GWELL APP OR USING THE SERVICES, YOU ARE AGREEING TO BE BOUND BY AND ARE BECOMING A PARTY TO THESE TERMS OF USE. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THESE TERMS OF USE, THEN DO NOT CLICK “I ACCEPT”, DO NOT ACCESS OR USE OUR WEBSITE OR SERVICES, AND DO NOT DOWNLOAD THE GWELL APP.
FURTHER, THESE TERMS OF USE CONTAIN AN AGREEMENT TO ARBITRATE, WHICH REQUIRES THAT YOU AND GWELL ARBITRATE CERTAIN CLAIMS BY BINDING, INDIVIDUAL ARBITRATION INSTEAD OF GOING TO COURT AND LIMITS CLASS ACTION CLAIMS UNLESS YOU OPT OUT AS PROVIDED IN SUCH AGREEMENT TO ARBITRATE (SEE SECTION 10 “AGREEMENT TO ARBITRATE”).
1. OUR GWELL APP AND OTHER SERVICES.
1.1 Access and Use. Subject to the terms and conditions of these Terms of Use, gWell hereby grants to You, for a one (1) year period from the Effective Date or such other period set forth on our gWell App or Website in connection with Your registration (the “Subscription Term”), a limited, non-exclusive, non-transferable right to use the gWell App and Services, on any product(s) that you own or control solely for Your personal use and not for the benefit of any other person or entity.
1.2 Restrictions. You shall not, directly or indirectly, and You shall not permit any third party to, (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the object code, source code or underlying ideas or algorithms of the Services; (ii) modify, translate, or create derivative works based on any element of the Services or any related documentation; (iii) rent, lease, distribute, sell, resell, assign, or otherwise transfer its rights to use the Services, including the gWell App; (iv) use the Services for any purpose other than its intended purpose; (v) interfere with or disrupt the integrity or performance of the Services; or (vi) attempt to gain unauthorized access to the Services.
1.3 We Do Not Provide Medical Advice or Genetic Counseling. The information, whether text, data, charts, and other materials available through our Services (“Content”) are for your informational purposes only. gWell does not provide, and the gWell App, Website and other Services do not include or provide, professional medical advice, genetic counseling or diagnosis or treatment of any medical or genetic conditions. You must consult with your physician, genetics counselor, physical therapist, chiropractor or other qualified health providers (each, “Your Clinician”) with any questions you may have regarding a medical or genetic condition. Your Clinician is solely responsible for providing You with professional medical advice, genetic counseling or diagnosis or treatment of any medical or genetic conditions, whether communicated to You outside our Services or in communications from Your Clinician to You through our Services. Do not disregard professional medical advice due to any of the other Content available through our Services. Reliance on any of the Content is solely at your own risk.
2. GENOMICS SERVICES, DATA AND YOUR CONTENT.
2.1 Integration with Third Party Genomics Services. Our Services are designed to interact with certain DNA and genomics services (“Genomics Services”) available from our third party partners identified on our gWell App and Website from time to time (“Genomics Service Providers”). All such Genomics Services, and any terms and conditions governing such services, are between You and such Genomics Service Providers, except that fees for such Genomics Services will be charged by gWell through the Services. If You do not obtain such Genomics Services from our Genomics Service Providers, substantial functionality of our Services will not be available to You. gWell does not provide Genomics Services. You acknowledge and agree that gWell may receive commissions from Genomics Service Providers in connection with Your subscription to their Genomics Services.
2.2 Sharing of Genomics Data with gWell. You hereby authorize gWell to receive all genomics data that result from your Genomics Services (“Your Genomics Data”) and you further authorize gWell to direct your Genomics Service Provider to provide Your Genomics Data to gWell as requested by gWell from time to time, notwithstanding anything to the contrary in your agreements with such Genomics Service Providers. You agree to assist gWell in obtaining Your Genomics Data from the applicable Genomics Service Provider(s) upon our request from time to time.
2.3 Decision to Access Genomics Services. You have sole discretion over whether to subscribe to any Genomics Services. You acknowledge that the results of any Genomics Services may provide negative or inconclusive information regarding your health or genetics. You may wish to consult with a genetic counselor regarding whether Genomics Services are right for you. In addition to the Genomics Service Provider, you may need to obtain other services from third parties to fully understand or address Your Genomics Data.
2.4 Submission of Your Content. You will be required to provide certain information in connection with your registration for our Services and may provide additional information from time to time (“Your Content”). You are responsible for the accuracy, quality, integrity, legality, reliability, appropriateness of all Your Content. By providing any of Your Content, You represent, warrant and covenant that You have the right to provide Your Content for the purposes set forth in these Terms of Use. You are solely responsible for Your Content that you submit, use, display or share on or via the Services. You must not submit, upload, post, display or share any of Your Content that you do not have the right to copy, use or share for the purpose of your use of the Services. If you choose to provide Your Content to use, register for or participate in a service, event, or promotion on our Services, you agree that you will provide accurate, complete, and up to date information as requested on the screens that collect information from you. Your Content and Your Genomics Data are subject to the license rights set forth in these Terms of Use.
3. USE OF THE gWELL APP AND WEBSITE.
3.1 Login Credentials. gWell will enable You to establish a username and password for access and use of the gWell App and certain other Services during the Subscription Term. You are responsible for maintaining the confidentiality and security of all such login credentials. You are solely responsible for any and all access and use of the Services that occurs under Your login credentials. You agree to immediately notify gWell of any unauthorized use of, or access to, Your login credentials.
3.2 Your Clinician’s Access to Your Content and Your Genomics Data. From time to time, through functionality made available through the gWell App or Website from time to time, You may authorize certain of Your Clinicians to access Your Content and Your Genomics Data for the purposes of their provision of medical advice and health care to You, subject to functionality in the Services which enables certain limitations of Your Content for certain of Your Clinicians. Such access may involve Your Clinicians’ uploading or entry, to Your account on the gWell App or Website, of medical records or other information about You or Your health, which shall be deemed Your Content upon such uploading or entry. You agree that Your Clinician may copy and download Your Content from time to time, to the extent Your Clinician has access to Your Content and such functionality is enabled by the gWell App or Website from time to time. You agree and acknowledge that gWell is not responsible for any acts or omissions of Your Clinicians. gWell may enter into separate terms and conditions with Your Clinicians in connection with their access to and use of the gWell App and Website in connection with their access to Your Content, Your Genomics Data or similar data for certain of their other patients.
3.3 Your Standards of Conduct. By accessing our Services or any chat room, online discussion forum, or other service provided through our Services, you agree to abide by the following standards of conduct. You agree that you will not, and will not authorize or facilitate any attempt by another person to use our Services or any related chat room or online discussion forum to:
a) Transmit any content that is unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, offensive, obscene, pornographic, lewd, lascivious, or otherwise objectionable, as determined by gWell;
b) Submit Your Content you know is false, misleading, untruthful, or inaccurate;
c) Engage in commercial activities on our Services or using our Services;
d) Promote a business or other commercial venture or event, or otherwise use the Services for commercial purposes, except as expressly permitted by gWell;
e) Use a name or language that gWell, in its sole discretion, deems offensive;
f) Post defamatory statements;
g) Post Your Content that is hateful or racially or ethnically objectionable;
h) Post Your Content which infringes another’s copyright, trademark or trade secret;
i) Post unsolicited advertising or unlawfully promote products or services;
j) Harass, threaten or intentionally embarrass or cause distress to another person or entity;
k) Impersonate another person;
l) Promote, solicit, or participate in any multi-level marketing or pyramid schemes;
m) Exploit children under 18 years of age;
n) Engage in disruptive activity such as sending multiple messages in an effort to monopolize the forum, if any;
o) Introduce viruses, worms, Trojan horses and/or harmful code to the Website;
p) Obtain unauthorized access to any computer system through the Website;
q) Invade the privacy of any person, including but not limited to posting personally identifying or otherwise private information about a person without their consent (or their parent’s consent in the case of a child under 13 years of age);
r) Solicit personal information from children under 13 years of age;
s) Violate any federal, state, local, or international law or regulation; or
t) Encourage conduct that would constitute a criminal or civil offense.
3.4 Disclaimer; Remedies for Violations of Your Standards of Conduct. gWell is not responsible for any content posted by any other user or third party to a public forum on our gWell App, Website or other Services. In the event gWell makes available any public forum through our Website, gWell App or other Services, gWell reserves the right to (i) record all communications in such forum, (ii) investigate any allegation of violations of the standards set forth in these Terms of Use, (iii) monitor, edit or remove any communications as contemplated in Section 3.3 above, or (iv) terminate a user’s access to such forum.
3.5 Security. You shall not circumvent or otherwise interfere with any user authentication or security of our Services. gWell will deploy commercially reasonable security precautions intended to protect against unauthorized access to any Your Content and Genomics Data on the gWell App or otherwise stored by gWell in connection with Your use of our Services. gWell will exercise reasonable efforts to deploy corrections within the gWell App for security breaches made known to gWell. You acknowledge that, notwithstanding the security precautions deployed by gWell, the use of, or connection to, the Internet provides the opportunity for unauthorized third parties to circumvent such precautions and illegally gain access to the gWell App, Website and Your Content. gWell cannot and does not guarantee the privacy, security, integrity or authenticity of any information transmitted over or stored in any system connected to or accessible via the Internet or otherwise or that any such security precautions will be adequate or sufficient.
4. FEES AND PAYMENT.
4.1 Subscription Fees. Use of certain of our Services may be subject to fees (“Subscription Fees”), as set forth from time to time on our Website or on the gWell App. We may also provide these Services to You at no charge in some instances, including where your employer has paid for subscriptions for certain of their employees. gWell may invoice You directly for fees for Genomics Services or may direct You to pay the Genomics Service Provider, as set forth on our Website or gWell App from time to time. Unless otherwise expressly agreed by gWell, You will be billed in advance on a monthly basis for the applicable Subscription Fees for such Services. Except as otherwise agreed by gWell from time to time, subscriptions and Subscription Fees are non-cancelable during the Subscription Term. gWell may commence charging fees for the Services at any time by delivery of at least thirty (30) days’ prior notice to You; provided that You will not be obligated to subscribe to any such Services. gWell may, in its sole discretion, change the Subscription Fees in its sole discretion at any time; provided that Subscription Fees for Your then-current Subscription Term will not change until the expiration of such then-current Subscription Term.
4.2 Payment Terms. You shall pay gWell the amount due under any invoice within thirty (30) days of the date of invoice by such payment methods as are supported by gWell at the time of payment. Past due amounts will be subject to an interest charge equal to the lesser of one and one-half percent (1.5%) per month or the highest rate allowed by applicable law. If Your account is past due for thirty (30) days or more, then gWell reserves the right to discontinue access to the gWell App and any other Services until all past due invoices are paid in full. All amounts payable under these Terms of Use will be made without setoff or counterclaim, and without any deduction.
4.3 Taxes. You shall pay all applicable sales, use and value-added taxes (except for taxes imposed on gWell’s net income) with respect to Services purchased by You. All payments under these Terms of Use shall be made free and clear of (and without deduction for or grossed up for, as applicable) any withholding or other taxes levied by any country or jurisdiction on payments to be made pursuant to these Terms of Use that applicable law requires You to withhold.
5. DISCLAIMERS.
5.1 Warranty Disclaimer. THE GWELL APP, WEBSITE AND OTHER SERVICES ARE PROVIDED TO YOU ON AN AS-IS BASIS. YOUR USE OF THE GWELL APP, WEBSITE AND OTHER SERVICES IS AT ITS OWN RISK. GWELL DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS AND/OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. GWELL DISCLAIMS ALL LIABILITY FOR THE LOSS OF DATA ENTERED INTO OR SAVED IN THE GWELL APP OR WEBSITE.
In the event of any failure of the gWell App to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the gWell App to you; and that, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the gWell App, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be our sole responsibility.
5.2 Third Party Product Descriptions and Links.
a) Third Party Products. We do not currently sell third-party products or Services through our Website or gWell App, but may do so in the future. We may, however, provide certain information or descriptions about products (collectively “Product Descriptions”) that we prepare or that we obtain from independent third parties, such as from Genomics Service Providers or other third party vendors. We do not warrant that Product Descriptions or any prices that are referenced are accurate, complete, reliable, current or error-free. You agree that gWell is not liable in any way for the accuracy, completeness, timeliness or correct sequencing of the Product Descriptions or other gWell Content, or for any decision made or action taken by you relying upon the Product Descriptions or other gWell Content.
b) Links to Third Party Sites. External links on our Services may lead to other websites, including advertised products sold by outside vendors and companies. We are not liable for the content, goods, services, advertising, or other materials found on these external websites. Although we may display ads and have an affiliate referral relationship with third parties, we do not own or control outside companies selling products accessed through our Services, and are not responsible or liable for their company policies or the quality of their merchandise or services. Before buying anything, users are advised to carefully investigate the individual company policies of all online purchases that they intend to make. From time to time, gWell may be a participant in certain affiliate advertising programs designed to provide a means for websites to earn advertising fees by advertising and linking to certain third parties. Any logo of a third party used on the gWell App, Website or other portion of our Services is a trademark of such third party or its affiliates.
c) No Third Party Endorsements. In no event shall any reference to any third party or third party product or service be construed as an approval or endorsement by gWell of that third party or of any product or service provided by a third party. Likewise, a link (including without limitation external websites that are framed by the Services as well as any advertisements displayed in connection therewith) to any third party website does not imply that we endorse or accept any responsibility for the content or use of such a website. gWell does not warrant the performance of any third party.
d) External Services. gWell services may enable access to gWell’s and/or third-party services and websites (collectively and individually, "External Services"). You agree to use the External Services at your sole risk. gWell is not responsible for examining or evaluating the content or accuracy of any third-party External Services, and shall not be liable for any such third-party External Services. Data displayed by gWell or External Services, including but not limited to financial, medical and location information, is for general informational purposes only and is not guaranteed by gWell or its agents. You will not use the External Services in any manner that is inconsistent with these Terms of Use or that infringes the intellectual property rights of gWell or any third party. You agree not to use the External Services to harass, abuse, stalk, threaten or defame any person or entity, and that gWell is not responsible for any such use. External Services may not be available in all languages or in your Home Country, and may not be appropriate or available for use in any particular location. To the extent you choose to use such External Services, you are solely responsible for compliance with any applicable laws. gWell reserves the right to change, suspend, remove, disable or impose access restrictions or limits on any External Services at any time without notice or liability to you. You must comply with applicable third party terms of agreement when using the gWell App.
6. PROPRIETARY RIGHTS.
6.1 Ownership. We acknowledge that, as between You and gWell, You are the sole and exclusive owner of Your Genomics Data and Your Content. You acknowledge that the gWell App, Website and other content available through our Services (other than Your Content and Your Genomics Data), and all intellectual property rights therein, are the sole and exclusive property of gWell and its licensors. The service marks and trademarks of gWell, including without limitation “gWell” and the gWell logo, are service marks owned by gWell, Inc. Any other trademarks, service marks, logos and/or trade names appearing via the Services are the property of their respective owners. You may not copy or use any of these marks, logos or trade names without the express prior written consent of the owner.
6.2 License to Your Content and Your Genomics Data. You grant to gWell a royalty-free, nonexclusive, irrevocable, limited right and license to use Your Content and Your Genomics Data (a) in order to provide the Services; (b) to analyze and improve the gWell App, Website and any other portion of the Services; and/or (c) to compile, use and disclose aggregate or de-identified data, statistics, measurements or other metrics derived from Your Content and Your Genomics Data (including in combination with the aggregate or de-identified customer data of other gWell customers) for its own purposes. Aggregate or de-identified data means data that does not identify You or any other individual.
6.3 Disclosure of Your Content. gWell shall not disclose Your Content to third parties, except as permitted under these Terms of Use or under the Privacy Policy.
6.4 Limited Feedback License. You hereby grant to gWell, at no charge, a non-exclusive, royalty-free, worldwide, transferable, sublicensable (through one or more tiers), perpetual, irrevocable license in and to suggestions, comments and other forms of feedback (“Feedback”) regarding the gWell App, Website or other Services, including Feedback regarding features, usability and use, and bug reports, to reproduce, perform, display, create derivative works of the Feedback and distribute such Feedback and/or derivative works in the Services or any other products or services. Feedback is provided by You “as is” without warranty of any kind by You.
6.5 Copyright Infringement; Notice and Take Down Procedures. If you believe that any content on our Services infringes your copyright, you may request that such content be removed. This request must bear a signature (or electronic equivalent) of the copyright holder or an authorized representative and must include the following information:
a) identification of the copyrighted work that you believe to be infringed, including a description of the work and, where possible, a copy or the location of an authorized version of the work;
b) identification of the content that you believe to be infringing and its location, including a description of the content, and its Website location or other pertinent information that will help gWell to locate such content;
c) your name, address, telephone number and email address;
d) a statement that you have a good faith belief that the complained of use of the material is not authorized by the copyright owner, its agent, or the law;
e) statement that the information in your claim is accurate; and
f) a statement that “under penalty of perjury,” You declare that You are the lawful copyright owner or are authorized to act on the owner’s behalf.
In an effort to protect the rights of copyright owners, gWell maintains a policy for the termination, in appropriate circumstances, of users of our Services who are repeat infringers. In the event of any third party claim that the gWell App or your possession and use of the the gWell App infringes that third party’s intellectual property rights, gWell, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
7. INDEMNIFICATION
By using our Services, you agree to indemnify, hold harmless and defend gWell and its officers, directors, employees and suppliers from any claims, damages, losses, liabilities, and all costs and expenses of defense, including but not limited to, attorneys’ fees, resulting directly or indirectly from a claim by a third party that arises in connection with your use of the Services and/or Your Content or Your Genomics Data.
8. LIMITATION OF LIABILITY
8.1 No Consequential Damages. GWELL SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR ANY DAMAGES FOR LOST DATA, REGARDLESS OF WHETHER GWELL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING WITHOUT LIMITATION, ANY SUCH DAMAGES ARISING OUT OF THE LICENSING, PROVISION OR USE OF THE GWELL APP, WEBSITE OR OTHER SERVICES, OR RESULTS THEREOF. GWELL WILL NOT BE LIABLE FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES.
8.2 Limits on Liability. GWELL SHALL NOT BE LIABLE FOR CUMULATIVE, AGGREGATE DAMAGES GREATER THAN THE SUM OF THE AMOUNTS HAVING THEN ACTUALLY BEEN PAID BY YOU TO GWELL UNDER THESE TERMS OF USE DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE THE CLAIM AROSE, MINUS, IN ALL CIRCUMSTANCES, ANY AMOUNTS PREVIOUSLY PAID (AS OF THE DATE OF SATISFACTION OF SUCH LIABILITY) BY GWELL TO YOU IN SATISFACTION OF ANY LIABILITY FOR DAMAGES UNDER THESE TERMS OF USE.
8.3 Essential Purpose. You acknowledge that the terms in this Section 8.3 are an essential basis of the bargain described in these Terms of Use and that, were gWell to assume any further liability, the fees payable hereunder would out of necessity, be set much higher. THE LIMITATIONS IN THIS SECTION 8.3 SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND SHALL APPLY EVEN IF AN EXCLUSIVE OR LIMITED REMEDY STATED HEREIN FAILS OF ITS ESSENTIAL PURPOSE.
9. TERM AND TERMINATION.
9.1 Term. The term of these Terms of Use shall commence on the Effective Date and continue until the expiration or termination of all Subscription Term(s) for Services, unless earlier terminated as provided in these Terms of Use.
9.2 Termination. gWell reserves the right to terminate these Terms of Use for no reason in its sole discretion at any time; provided that, in the event such termination of fee-bearing Services without cause, gWell will provide a pro-rata refund to You of any pre-paid fees for the then-current Subscription Term. Further, either party may terminate these Terms of Use (and all Subscription Term(s)) upon written notice to the other party in the event the other party (a) becomes insolvent or bankrupt or admits its inability to pay its debts as they mature, makes an assignment for the benefit of its creditors or ceases to function as a going concern or to conduct its operations in the normal course of business and such termination shall occur immediately upon notice; or (b) commits a material breach of any provision of these Terms of Use and does not remedy such breach within thirty (30) days after receipt of notice from the non-defaulting party or such other period as the parties may agree.
9.3 Effects of Termination. Upon expiration or termination of these Terms of Use, Your use of and access to the gWell App and other Services, and Your right to access and use the Website, shall cease and gWell shall have no obligation to maintain or provide any Your Content or Your Genomics Data and may in our discretion, unless legally prohibited, delete all Your Content and Your Genomics Data in our systems or otherwise in our possession or under its control.
10. AGREEMENT TO ARBITRATE.
10.1 Arbitration. You agree that all disputes between You and gWell (whether or not such dispute involves a third party) arising out of or relating to these Terms of Use, the gWell App, Website, other Services, and/or Privacy Policy shall be finally resolved by arbitration before a single arbitrator conducted in the English language via teleconference or, if requested by You, in Boston, Massachusetts, U.S.A., in each case under the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) and You and gWell hereby expressly waive trial by jury. You and gWell shall appoint as sole arbitrator a person mutually agreed by You and gWell or, if You and gWell cannot agree within thirty (30) days of either party’s request for arbitration, such single arbitrator shall be selected by the AAA upon the request of either party. Each party shall equally bear the costs of the arbitration, except that, if you are an individual Policyholder (not a corporate or similar entity), gWell will bear the reasonable cost of the arbitrator and the AAA; in any event, each party will bear the cost of their own counsel. All decisions of the arbitrator shall be final and binding on both parties and enforceable in any court of competent jurisdiction. Notwithstanding this, application may be made to any court for a judicial acceptance of the award or order of enforcement. Notwithstanding the foregoing, either You or gWell shall be entitled to seek injunctive relief, security or other equitable remedies from any court of competent jurisdiction. Under no circumstances shall the arbitrator be authorized to award damages, remedies or awards that conflict with these Terms of Use (including without limitation Section 8 above) or to award punitive damages, including but not limited to pursuant to federal or state statutes permitting multiple or punitive awards.
10.2 Term for Cause of Action; Waiver of Class Actions. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to the Services or these Terms of Use must be filed within one (1) year after such claim or cause of action arose or shall be forever barred. Any claims brought by You or gWell must be brought in the party’s individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding. Neither You nor gWell will participate in a class action or class-wide arbitration for any claims covered by these Terms of Use. You hereby waive any and all rights to bring any claims related to these Terms of Use and Privacy Policy as a plaintiff or class member in any purported class or representative proceeding. You may bring claims only on Your own behalf.
10.3 Opt Out. You may opt out of this agreement to arbitrate in this Section 10. If you do so, neither you nor we can require the other to participate in an arbitration proceeding. To opt out, you must notify us in writing within thirty (30) days of the date that you first became subject to this arbitration provision. The opt out notice must state that you do not agree to the Agreement to Arbitrate and must include your name, address, phone number, your login credentials to which the opt out applies and a clear statement that you want to opt out of this agreement to arbitrate. You must sign the opt out notice for it to be effective. This procedure is the only way you can opt out of the Agreement to Arbitrate. You must use this address to opt out: gWell, Inc., ATTN: Arbitration Opt-out, 288 Grove Street, #372, Braintree, MA 02184.
10.4 Survival. This Arbitration section will survive the termination of Your relationship with gWell.
11. MISCELLANEOUS
11.1 Entire Agreement. These Terms of Use, together with any supplemental terms expressly agreed by the parties through the gWell App or Website concurrently herewith or subsequent hereto, constitutes the entire agreement between the parties relating to this subject matter and supersedes all prior or simultaneous understandings, representations, discussions, negotiations, and agreements, whether written or oral.
11.2 Changes to these Terms of Use; Waiver. These Terms of Use may be amended or supplemented only by a writing that is signed by duly authorized representatives of both parties or through a click through agreement accepted by You; provided that these Terms of Use as applicable to users of our Website may be unilaterally amended by gWell by posting of such update Terms of Use on the Website and shall be effective from and after such posting. No term or provision hereof shall be considered waived by either party, and no breach excused by either party, unless such waiver or consent is in writing signed on behalf of the party against whom the waiver is asserted. No consent by either party to, or waiver of, a breach by either party, whether express or implied, shall constitute consent to, waiver of, or excuse of any other, different, or subsequent breach by either party.
11.3 Severability. If any provision of these Terms of Use is held invalid or unenforceable for any reason, the remainder of the provision shall be amended to achieve as closely as possible the economic effect of the original term and all other provisions shall continue in full force and effect.
11.4 Governing Law. These Terms of Use and the rights and obligations of the parties to and under this agreement shall be governed by and construed under the laws of the Commonwealth of Massachusetts as applied to agreements entered into and to be performed in such State without giving effect to conflicts of laws rules or principles which would apply the laws of any other state or country. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to these Terms of Use. Subject in all respects to Section 10 hereof, for any disputes arising out of these Terms of Use, the parties consent to exclusive jurisdiction and venue in the state and federal courts located in the Commonwealth of Massachusetts.
11.5 Force Majeure. Neither party shall be liable for any failure or delay in performance under these Terms of Use due to fire, explosion, earthquake, epidemic, storm, flood or other weather; unavailability of necessary utilities or raw materials; Internet service provider failures or delays, or denial of service attacks; war, civil unrest, acts of terror, insurrection, riot, acts of God or the public enemy; strikes or other labor problems; any law, act, order, proclamation, decree, regulation, ordinance, or instructions of government or other public authorities, or judgment or decree of a court of competent jurisdiction (not arising out of breach by such party of these Terms of Use); or any other event beyond the reasonable control of the party whose performance is to be excused.
11.6 Assignment. You shall not assign its rights or obligations under these Terms of Use, whether voluntarily or by operation of law or otherwise, without gWell’s prior written consent. gWell may assign its rights or obligations under these Terms of Use without Your prior written consent. Any purported assignment or transfer in violation of this section shall be void. Subject to the foregoing restrictions, these Terms of Use will bind and benefit the parties and their successors and permitted assigns.
11.7 Relationship of the Parties. gWell is an independent contractor to You. There is no relationship of agency, partnership, joint venture, employment, or franchise between the parties. Neither party has the authority to bind the other or to incur any obligation on its behalf.
11.8 Export. The gWell App and Website utilize software and technology that may be subject to United States and foreign export controls. You acknowledge and agree that the Services shall not be used, and none of the underlying information, software, or technology may be transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. By using the Subscription Services, You represent and warrant that You are not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. The gWell App may use encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations, 15 C.F.R. Parts 730-774 and Council Regulation (EC) No. 1334/2000. You agree to comply strictly with all applicable export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required. You also agree that you will not use these products for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture, or production of nuclear, missile, or chemical or biological weapons. gWell and its licensors make no representation that the Services are appropriate or available for use in other locations.
11.9 Contact Us. Please contact gWell support at support@gwellhealth.com if You have any questions, complaints or claims with respect to the gWell App, Website or other Services.
These Terms of Use last updated on April 14, 2022.
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