Supplemental terms may apply to Practitioners, and such supplemental terms will be disclosed to you in connection with the applicable Services. Supplemental terms are in addition to, and shall be deemed a part of, the Terms for the purposes of the applicable Services. Supplemental terms shall prevail over these Terms in the event of a conflict with respect to the applicable Services.
“Practitioner(s)” are defined as all wellness practitioners, instructors, or studios who use the Site and/or Services to list their wellness services and/or to offer classes. “Clients” are defined as Users who book Practitioner wellness services and/or classes through the Site.
1.1 Eligibility. To use the Site you must be, and represent and warrant that you are, of legal age (18 years of age or older) and competence. By using the Site on behalf of any third party, you are representing to us that you are an authorized representative of that third party and that your use of the Site constitutes that third party’s acceptance of these Terms. In addition, if you have been previously prohibited from accessing the Site or the website of any of our affiliates, you are not permitted to access the Site.
1.2 Permission to Use the Site. Subject to your compliance with these Terms, we grant you a personal, limited, non-exclusive, non-transferable, and revocable right to access the Site and use the Services for your use as we intend by these Terms. WellSet reserves the right to monitor the Site for the purpose of determining that your usage complies with these Terms.
1.3 Prohibited Conduct. You may not use the Site or Services other than as expressly permitted by Section 1.2 above. Without limitation, you will not, directly or indirectly: (a) copy, reproduce, modify, distribute, display, create derivative works of or transmit any content on the Site; (b) reverse engineer, decompile, tamper with or disassemble the technology used to provide the Service or Site (except as and only to the extent any foregoing restriction is prohibited by a non-waivable provision of applicable law); (c) interfere with or damage the Service, Site, or any underlying technology; (d) impersonate or misrepresent your identity or affiliation; (e) attempt to obtain unauthorized access to the Service or Site; (f) collect information about users of the Site or the Service without the users’ written approval except as provided herein; (g) violate, misappropriate or infringe a third party’s intellectual property or other right, or any social media platform terms; (h) violate any law, rule, or regulation, or (i) interfere with any third party’s ability to use or enjoy, or our ability to provide, the Service or Site.
2. ACCOUNT REGISTRATION; ACCOUNT USE
2.1 Account Registration. To access the Services through the Site, you must become a registered user of the Site (“Registered User”). To become a Registered User, you must provide us with complete and accurate information. You must promptly update such information to keep it complete and accurate. You are entirely responsible for maintaining the confidentiality of your password and account. You are entirely responsible for any and all activities that occur under your account. You may not use anyone else’s account at any time. We may remove or reclaim your username if we believe it is appropriate (such as in response to a trademark claim).
2.2 Security of Your Account. You agree to notify WellSet immediately of any unauthorized use of your account or any other breach of security. We will not be liable for any loss, damages, liability, expenses or attorneys’ fees that you may incur as a result of someone else using your password or account, either with or without your knowledge to the fullest extent permitted by applicable law. You will be liable for losses, damages, liability, expenses and attorneys’ fees incurred by WellSet or a third party due to someone else using your account.
2.3 No Obligation to Retain a Record of Your Account. WellSet has no obligation to retain a record of your account or any data or information that you may have stored for your convenience by means of your account or the Services.
2.4 Membership. WellSet provides Practitioners several different membership options. The features and availability of membership options and benefits are as listed on the Site and may change from time to time at the sole discretion of WellSet and upon reasonable notice posted in advance on the Site.
3.1 Between Client and Practitioner. The Practitioner Services to be performed by the Practitioner are between a Client and a Practitioner (the “Practitioner Services”). Upon booking confirmation, the Client agrees to purchase, and the Practitioner agrees to perform the Practitioner Services in accordance with the following agreements: (a) any agreement directly between Client and Practitioner, (b) these Terms, and (c) any other content uploaded to the Site by WellSet (collectively, the “Agreement”). You agree not to enter into any contractual provisions in conflict with these Terms. Any other provision of an Agreement in conflict with these Terms is void. Client is responsible for managing, inspecting, accepting and paying for satisfactory Services in accordance with the Agreement in a timely manner. Client and Practitioner each covenant and agrees to act with good faith and fair dealing in performance of the Agreement.
3.2 Between Registered Users and WellSet.
3.2.1 General. WellSet is not a party to the dealing, contracting and fulfillment of any Practitioner Services between a Client and a Practitioner. WellSet has no control over and does not guarantee the quality, safety or legality of any Practitioner Services performed, advertised, the truth or accuracy of Practitioner listings, the qualifications, background, or abilities of Registered Users, the ability of Practitioners to perform Services, the ability of Clients to pay for Practitioner Services, or that a Client or Practitioner can or will actually complete the Practitioner Services. WellSet is not responsible for and will not control the manner in which a Practitioner operates and is not involved in the hiring, firing, discipline or working conditions of the Practitioner. All rights and obligations for the purchase and sale of Practitioner Services are solely between a Client and a Practitioner. WellSet will not provide any Practitioner with any materials, equipment, or facility to complete any Services. Clients and Practitioner must look solely to the other for enforcement and performance of all the rights and obligations arising from Agreement and any other terms, conditions, representations, or warranties associated with such dealings. Client acknowledges and agrees that WellSet does not supervise, direct or control a Practitioner’s Services in any manner. Client and Practitioner each acknowledges and agrees that the value, reputation, and goodwill of the Site depend on their performance of their covenants and agreements as set forth in their Agreement. Clients and Practitioners further agree that WellSet has the right to take such actions with respect to the Agreement or their WellSet accounts, including without limitation, suspension, termination, or any other legal actions, as WellSet in its sole discretion deems necessary to protect the value, reputation, and goodwill of the Site. PRACTITIONER AND CLIENT ASSUME ALL RISK IN CONNECTION WITH THE PRACTITIONER SERVICES BETWEEN PRACTITIONER AND CLIENT, INCLUDING THE SAFETY AND CONDUCT OF ANY PRACTITIONER OR ANY CLIENT. WELLSET SHALL NOT BE RESPONSIBLE OR LIABLE FOR ANY ACTS OR OMISSIONS OF THE CLIENT OR PRACTITIONER OR BOTH, AS APPLICABLE.
3.2.2 Background, Certification and Reference Checks. WellSet does not employ, recommend or endorse any Practitioner or Client, nor is it responsible for the conduct of any Practitioner or Client. WellSet provides a tool to connect Practitioner and Clients. Client acknowledges and agrees that Client is responsible for determining if the Practitioner they hire is qualified to perform the Services at hand and for complying will all applicable laws in connection with the relationship the Services. Notwithstanding the foregoing, Practitioners who have registered as “WellSet Select” have completed a background, certifications and reference checks with WellSet. Please click here to learn more about the guidelines to become a “WellSet Select.” Nothing contained herein shall be construed as an obligation by WellSet to perform background checks, or verification checks on any Registered Users. To the extent WellSet performs such checks on certain Registered Users, the checks are limited and should not be taken as complete, accurate, up-to-date or conclusive evidence of the accuracy of any information those users have provided or of their eligibility to use the Services.
3.2.3 Agency. These Terms and any registration for or subsequent use of this Site by any user or Registered User will not be construed as creating or implying any relationship of agency, franchise, partnership or joint venture between you and WellSet, except and solely to the extent expressly stated.
4. FEES AND PAYMENTS
4.1.1 Services Fees. WellSet assesses one or more of the following fees (“Service Fees”), as applicable, on payments made by Clients to Practitioners through the Site:
(a) Booking Fee. WellSet charges to Client a Booking Fee on all scheduled sessions and classes in an amount as listed on the Site.
(b) Fee Adjustments. We reserve the right to change any fee that may be charged by WellSet at any time, at the sole discretion of WellSet and upon reasonable notice posted in advance on the Site. No refunds of fees already paid will be given. If we exercise our right to cancel a membership as provided under these Terms, at any time, we will not refund the membership fee already paid.
(a) Taxes. Registered Users are responsible for payment and reporting of any taxes. Practitioners are solely responsible for the timely and accurate entry and submission of charges for the Services they provide to Clients (including all applicable sales, use and other taxes, for which Practitioners or Clients are responsible to calculate, request payment of, collect and remit to the appropriate tax authorities) utilizing the Services. Such invoices shall reflect that the sums due are solely for the Services provided by Practitioners, and not for any Services of WellSet, and that WellSet is not considered to be an agent, reseller or co-vendor with Practitioner with respect to the Services. Each Practitioner shall indemnify and hold WellSet harmless from any and all claims by any tax authority that WellSet is liable for sales tax on any sums paid for Practitioner’s Services. Each Practitioner agrees that to the extent WellSet is assessed a tax for any Services to a Client, WellSet is entitled to immediate reimbursement from Practitioner or Client of any such assessments.
(b) Authorized Payments are Final. Your use of the Site constitutes your agreement to pay for any amounts which you authorize us to charge to your payment card. Such payments, once authorized, are final. Client hereby releases WellSet from any and all liability with respect to such Payment.
(c) Fraud and Error. WellSet reserves the right to seek reimbursement from you, and you will reimburse WellSet, if WellSet discovers a fraudulent transaction, erroneous or duplicate transaction, or if WellSet receives a charge back or reversal from any Payment Method for any reason. You agree to and acknowledge WellSet’s right to investigate any and all transactions for fraud. Further, you agree to cooperate with any reasonable requests made by WellSet in an effort to investigate fraud. You agree that WellSet has the right to obtain such reimbursement by charging the Payment Method associated with your WellSet account or obtaining reimbursement from you by any other lawful means, including using a third-party collection agency. Failure to pay for reimbursements of a charge back or a reversal of payment is cause for termination of your WellSet account, without limitation of any other available rights or remedies.
(d) Currency. All invoices and Payments operate in US Dollars.
(e) Payment terms for Practitioners
While using the WellSet Services as a Practitioner, you may offer and accept payment for services and classes through WellSet (each a “Practitioner Payment” and collectively the “Practitioner Payments”). To receive payments, you must provide us (through Stripe Connect) your direct deposit information (to receive payment electronically). By providing direct deposit information, you hereby authorize us and our service providers to issue payments by ACH or other electronic means to your bank account.
No later than 10 business days following completion of a class or service attended by Clients, the Practitioner must elect (by connecting your bank account to Stripe Connect), and choosing the option to be paid out in your dashboard to have electronic payment equal to (i) the total Practitioner Payments (excluding any credit card fees) received by the us for Clients who booked and paid for (and who did not cancel prior to the 24 hour refund period applicable to classes) such class or service.
5. TERMS OF SALE FOR CLASSES & SERVICES
5.2 Services Descriptions. We try to make the Site thorough, accurate, and helpful to our customers. Nonetheless, there may be times when certain information contained on the Site may be incorrect, incomplete, inaccurate, or appear inaccurate because of the browser, hardware, or other technology that you use. We apologize in advance for any such errors that may result in an incorrect price, inaccurate description, item unavailability or otherwise affect your order. We reserve the right to correct errors (whether by changing information on the Site or by informing you of the error and giving you an opportunity to cancel your order) or to update Services information at any time without notice.
5.3 Availability and Pricing. WellSet reserves the right to change the prices and available Services at any time. Quantities of some Services may be limited and availability cannot always be guaranteed. We may occasionally make errors in the stated prices on this Site. If a Service’s correct price is higher than the listed price, we will, in our discretion, either confirm the correct price with you or cancel your order and notify you of such cancellation.
5.4 Purchasing Services and Services. The display of Services on the Site invites you to make an offer to purchase the Services. Your order is an offer to buy the Services, which we accept only by providing the Services or confirming your request for Services. Any confirmation that you receive after placing an order does not constitute an acceptance of your offer and is subject to correction for any reason.
5.5 Orders. We have the right to refuse or limit any orders and limit quantities. We will not be liable if a Service is unavailable or if the date of Services need to be rescheduled. All orders are non-cancelable; we may grant or deny cancellation requests in our sole and absolute discretion. We reserve the right to provide substantially similar Services to fulfill your order.
5.6 Returns. We do not allow returns or substitutions of Services. All sales are final.
5.7 Personal Use Only. Services are for your personal use only. You agree not sell or resell or otherwise monetize in any way any Services you purchase, expressly including all contract templates that may be provided.
5.9 Class Policies. WellSet is not responsible for the policies or practices of any Practitioner. A Practitioner may decide in their own discretion to decline to allow you to participate in any class for any or no reason. If the reason for the denial of service is (i) that you have you have breached this Agreement or any other agreement with the Company or the Practitioner or (ii) your behavior or participation in the class could possibly endanger yourself or others, you will not be entitled to any refund. All other refunds for a denial of service will be handled on a case by case basis by contact to firstname.lastname@example.org.
You are responsible for your behavior both during and after classes. You agree to abide by all Practitioner rules.
As a Client, you understand and agree that as a condition of each class sign up, you may be required to sign a waiver form, waiving to the full extent of the law, the liability of the applicable Practitioner. If you refuse to execute any such waivers, you will be deemed to have cancelled your participation in the class and will not be entitled to a refund. Further, by participating in a class, you agree to all terms included in this waiver, linked here.
As a Practitioner, you agree that the Company will be a beneficiary and released party under any releases from liability contained in any waiver that you require Clients to sign, and you hereby agree that the Company is an express third party beneficiary of any such waiver, with full rights to enforce its terms.
5.10 Class Cancellation policies.
All cancellations must be made through the Site. A cancellation made by any other means will not be effective, and you will be charged as if you had attended the class. In the event you cancel your attendance at a class in your capacity as a Client: within 24 hours of the start time of the class (the “Class Start Time”), you will not receive any refund for any payment made for such class. More than 24 hours prior to the Class Start Time, you will receive a full refund for the payment made for such class.
Instructors or Studio Cancellations, No-Shows and Over-Bookings.
Cancellations. All cancellations must be made through the website or mobile Application. A cancellation made by any other means will not be effective, and you will be treated as a no-show. In the event you cancel your attendance at a class in your capacity as a Practitioner:
No-Shows. If you fail to hold a scheduled class or appear for any reason (including if the studio is unavailable), WellSet has the right to terminate your account on a case by case basis.
Client Refunds. In the event of a Practitioner cancellation, failure to appear or over-booking, a refund of the applicable Client payment will be credited to Client’s credit card no later than ten (10) days following the date of cancellation or non-appearance.
Disputes. In the event of any dispute over whether a cancellation, no-show or over-booking has occurred, the Company may resolve such dispute either in favor of the Client or in favor of the Practitioner in its sole and absolute discretion.
5.11 Class Waiver
By participating in a class offered on the WellSet platform, you agree to the following:
Assumption of Risk and Release of Liability: You voluntarily desire to participate in physical and rehabilitation and/or exercise or wellness training classes conducted by any of the Practitioners using WellSet.
You agree to the following: You assume full responsibility while voluntarily participating in any classes, on-line or in-person, at your sole risk and shall abide by any rules and regulations of any equipment you choose to use.
YOU are aware that there exists the possibility of certain conditions occurring during or following training and/or exercise or wellness. These include, but are not limited to: mild lightheadedness, fainting, abnormalities of blood pressure or heart rate, ineffective heart function and in rare instances, heart attack or stroke. The reaction of the cardiovascular system to such activity cannot be predicated with complete accuracy.
It is strongly recommended that you receive a medical clearance from your private physician prior to starting an exercise or wellness-training program. Classes are not designed for persons with known heart disease with or without functional impairment.
You expressly agree that you have been informed that the program involves possible risks and all exercise or wellness classes shall be undertaken at your sole risk and that neither Practitioner nor WellSet, nor the officers, directors, employees or agents of either shall be liable to you nor any other person, for any claims, demands, injuries, damages, actions or causes of action, whatsoever, to your person or property arising out of or connected your services, facilities, and exercise or wellness classes or the facility where the same is located, and you do hereby release and discharge the Practitioner and WellSet from all claim, demands, injuries, damages, action, or causes of actions and from all acts of active or passive negligence on the part of the Practitioner or the WellSet, their servants, agents or employees.
It is your responsibility to ensure you have doctor’s clearance to participate in movement-based classes, exercise or wellness and similar activities provided in this subscription. WellSet expects every participant to ensure to create a safe environment and space to workout in to avoid tripping, falling or any kind of injuries. Please keep your Practitioner informed about any changes in your current health, well-being and other physical, mental or emotional symptoms you might experience before or during the session that may influence your participation in the class. We highly recommend staying hydrated and allowing enough time for rest and recovery between challenging classes.
You understand and agree that it is your responsibility to ensure a safe space/environment to perform the activities.
Additional risks posed by participating in the activities online, as there is no in-person supervision or space provided for you, and you will therefore need to ensure the safety of the activities, using your judgment how to best practice them, not pushing yourself too far or attempting anything you feel unsure how to perform.
Release, Waiver and Indemnity. You hereby release, hold harmless, indemnify and waive any claims against WellSet, its members, instructors, directors, officers, contractors, employees, volunteers, agents, executors, administrators, successors, family members and assigns (the “Released Parties”) from any liability and damages arising from death or personal injuries or otherwise.
Media Release. We think you’re awesome and want to show you off! By being a user of WellSet, you agree to grant us the irrevocable right to use your image, likeness, photos, video content, audio recordings captured of you on the premises or participating in the activities or that you share with us online (via your own or others posting of you) as part of our online streaming, marketing and sales throughout the world and in perpetuity. You also release us from all claims you may have relating to such use. Please let us know If you ever want us to stop using an image of you.
Continued Agreement. Agreement to this waiver will act as your continued agreement to all ensuing classes, sessions and/or workshops whether in person, online, or via video conferencing tool.
General Legal Provisions.
Jurisdiction. This Waiver will be governed exclusively by the laws of the State of California.
Severability. If any provisions of this Waiver are invalid or unenforceable, the other provisions in the Waiver will remain in full force and effect. Entire Agreement. This Waiver constitutes the entire agreement between the parties and replaces any prior agreements.
Headings. The headings used in this Waiver are for stylistic purposes only and none of the content in the headings are intended to be legally binding.
Online Agreement. This Agreement may be signed electronically or agreed to by having you click “I Agree”, or by you engaging in the activities, classes, or services offered on the WellSet platform, the effect of which will be the same as signing by hand and the intention of which is that both parties desire to be bound by all the terms of the Agreement.
As part of wellness classes, you may be asked to provide information concerning your physical habits, medical history, moods, energy levels, likes and dislikes, lifestyle and diet. This information is collected to enable the Practitioner to: (i) assess your knowledge of health, (ii) educate you about the benefits of healthy practices and (iii) recommend changes to improve your general health, vitality and overall well-being.
Practitioner is in no way liable for your health or safety.
You hereby accept all risk to your health, including injury or death that may result from such participation and you hereby release the Practitioner and WellSet, on your behalf and on behalf of your personal representatives, estate, heirs, next of kin, and assigns from any and all costs, claims, causes of action and damages arising from any and all illness or injury to your person, including your death, that may result from or occur as a result of your participation in the wellness classes, whether caused by negligence or otherwise.
You understand that any classes you undertake with the WellSet classes are undertaken of your own free will. you accept that you are ultimately responsible for your health. you hereby agree to assume full responsibility for any manner of loss, injury, claim or damage whatsoever, known or unknown, incurred as a result of same and you, your heirs, executors, administrators or assigns for any loss, injury, claim or damage sustained as a result of your attendance and/or participation.
You have read the above release and waiver of liability, and fully understand its contents and voluntarily agree to the terms and conditions stated.
6. INTELLECTUAL PROPERTY; THIRD-PARTY CONTENT AND SERVICES
6.1 Intellectual Property Rights. All content on the Site, or otherwise made available via the Site, including the text, notes, graphics, photos, sounds, music, videos, interactivities and the like (“Content”), the trademarks, service marks and logos contained therein (“Marks”), the design of the Site and/or Services (“Site Design”), and all software and other technology used to provide the Site and/or Services (“Technology”), are owned by or licensed to WellSet and/or its affiliates. Content is provided to you “as is” for your information and personal use only and may not be used, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, or otherwise exploited for any other purposes whatsoever. We reserve all rights not expressly granted in and to the Site, Content, Marks, Site Design and Technology. Using the Site and/or Services does not give you any ownership of or right in or to any Content, Marks, Site Design or Technology.
6.2 Third-party Content. The Site may contain information and content provided by third parties. We have no obligation to monitor, we do not endorse, and we are not liable for any third-party content. In addition, the Site may contain links to third-party websites. WellSet is not responsible for the content on any linked site or any link contained in a linked site. We do not endorse or accept any responsibility for the content on such third-party sites.
7. CONTRIBUTIONS TO WELLSET
Any text, photographs, artwork, ideas, questions, reviews, comments, suggestions or other content that you submit or post to the Site or otherwise provide to us are referred to as “User Content”. The following terms apply to User Content:
7.1 License to WellSet. By sharing, submitting or uploading any User Content, you grant WellSet a worldwide, perpetual, irrevocable, non-exclusive, royalty-free, sublicensable and transferable license to use, copy, distribute, display, publish, perform, sell, transmit, adapt, translate, modify, reverse-engineer, disassemble and create derivative works from your User Content in any manner existing now or created in the future. Subject to the license above, you retain ownership of User Content.
7.2 Waiver of Moral Rights. You irrevocably waive and agree not to assert any rights, including any “moral rights,” that you have to prevent us from exploiting the rights granted in Section 7.1.
7.3 Your Responsibility for User Content. You acknowledge and agree that you are solely responsible for all the User Content that you make available through the Site. Accordingly, you represent and warrant that: (1) you have all rights, licenses, consents and releases necessary to grant WellSet the required rights to disseminate any User Content and (2) neither your User Content nor your posting, uploading, publication, submission or transmittal of this User Content or WellSet’s use of your uploaded User Content (or any portion thereof) on, through or by the means of the Site, will infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights or rights of publicity or privacy or result in the violation of any applicable law or regulation.
7.4 No Obligations Regarding User Content. We will not have any obligation to hold any User Content in confidence or compensate you or anyone else for its use. We have the right to remove or edit any User Content for any reason or no reason at all.
8.1 Infringement Notification. WellSet respects the rights of others and we expect users of our Site and Services to do the same. These Terms prohibit the infringement of the copyrights of others, and it is also our policy that we may remove, suspend, terminate access, or take other appropriate action against repeat offenders. We may also remove content that in our sole discretion appears to infringe the intellectual property rights of others.
8.2 How to File an Infringement Notification. If you have evidence, know, or have a good faith belief that content residing on or accessible through our Site infringes a copyright which you own or for which you are a designated agent, please send a notice of infringement by fax or regular mail to WellSet’s designated Copyright Agent to receive notifications of claimed infringement by one of the following means:
WellSet Copyright Agent.
1001 BRIDGEWAY SUITE 606
SAUSALITO CA 94965
Support@wellset.com and with the information that sets forth the items specified below:
Identify the copyrighted work claimed to have been infringed. If multiple copyrighted works are covered by a single notification, provide a representative list of such works.
- Identify the material that is claimed to be infringing or to be the subject of infringing activity. Include information reasonably sufficient to permit WellSet to locate the material. Please provide a URL and screenshots for each item. Include the specific asset(s) or page(s) that you claim to be infringing. Say “entire work” ONLY if all assets/pages in a collection/document are infringing.
- Include details of your claim to the material, or your relationship to the material’s copyright holder.
- Provide your full name, address, and telephone number should we need to clarify your claim.
- Provide a working email address where we can contact you to confirm your claim.
- If true, include the following statement: “I have a good faith belief that use of the copyrighted materials described above as the allegedly infringing web pages is not authorized by the copyright owner, its agent, or the law.”
- If true, include the following statement: “I swear, under penalty of perjury, that the information in the notification is accurate and that I am the copyright owner or am authorized to act on behalf of the copyright owner to make this complaint.”
- Sign the document, physically or electronically.
9. WARRANTIES; DISCLAIMER
9.1 NO WARRANTIES. THE SITE AND SERVICES ARE PROVIDED “AS AVAILABLE” AND “AS IS” TO THE FULLEST EXTENT PERMITTED BY LAW, WITH NO REPRESENTATIONS OR WARRANTIES OF ANY KIND. WELLSET DISCLAIMS TO THE FULLEST EXTENT PERMITTED BY LAW ALL WARRANTIES, EXPRESS, IMPLIED AND STATUTORY, INCLUDING ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. THIS PROVISION IS NOT INTENDED TO DISCLAIM LIABILITY THAT WE MAY NOT DISCLAIM UNDER APPLICABLE LAW. WELLSET DOES NOT REPRESENT OR WARRANT THAT THE SITE, SERVICES OR EMAILS SENT TO YOU WILL BE UNINTERRUPTED, ERROR-FREE, SECURE, FREE OF VIRUSES OR OTHER HARMFUL CODE, OR THAT ALL INFORMATION WILL BE ACCURATE OR COMPLETE. YOU AGREE THAT YOUR USE OF THE SITE SHALL BE AT YOUR SOLE RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR HARDWARE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF MATERIAL OR DATA. WELLSET MAKES NO REPRESENTATION, WARRANTY, GUARANTEE OR PROMISE THAT THE SITE OR SERVICES WILL MEET YOUR REQUIREMENTS OR ACHIEVE ANY PARTICULAR RESULTS.
9.2 USE OF SITE AND SERVICES ARE AT YOUR OWN RISK. IF YOU ARE EXPERIENCING A MEDICAL EMERGENCY, PLEASE CONTACT 9-1-1. WELLSET DOES NOT PROVIDE MEDICAL ADVICE, DIAGNOSIS OR TREATMENT OR ENGAGE IN ANY CONDUCT THAT REQUIRES A PROFESSIONAL LICENSE. NOTHING CONTAINED ON THE SITE OR SERVICES OFFERED BY WELLSET SHOULD BE CONSTRUED AS ANY FORM OF SUCH MEDICAL ADVICE, DIAGNOSIS, OR SUBSTITUTE FOR PROFESSIONAL CONSULTATION. YOU ARE URGED AND ADVISED TO SEEK THE ADVICE OF A HEALTHCARE PROFESSIONAL FOR ANY MEDICAL ADVICE, DIAGNOSIS, TREATMENT, AND ANSWERS TO YOUR PERSONAL QUESTIONS PRIOR TO ENGAGEMENT OF ANY PRACTITIONER’S SERVICES. PRACTITIONER’S SERVICES MAY NOT BE RIGHT FOR EVERY PERSON.
9.3 THIRD-PARTY CONTENT AND WEBSITES. WELLSET WILL NOT BE RESPONSIBLE FOR ANY THIRD-PARTY CONTENT OR SERVICES ON THE SITE, ANY LINKS TO THIRD-PARTY WEBSITES OR ANY THIRD-PARTY WEBSITES. WELLSET DOES NOT WARRANT, ENDORSE, GUARANTEE OR ASSUME RESPONSIBILITY FOR ANY SERVICE OR PRODUCT ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SITE OR ANY WEBSITE FEATURED OR LINKED TO THROUGH THE SITE, AND WELLSET WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND PRACTITIONERS OF PRODUCTS OR SERVICES. WELLSET WILL NOT BE LIABLE FOR THE OFFENSIVE, ILLEGAL, HARMFUL CONDUCT OF ANY THIRD PARTY. MATERIAL ON THE SITE MAY INCLUDE HYPERLINKS TO INFORMATION CREATED AND MAINTAINED BY OTHER PUBLIC AND PRIVATE ORGANIZATIONS AND PERSONS. WELLSET PROVIDES THESE LINKS SOLELY FOR OUR USERS’ INFORMATION AND CONVENIENCE. THESE REFERENCES ARE NOT INTENDED TO REFLECT THE OPINION OF WELLSET, OR ITS OFFICERS OR EMPLOYEES CONCERNING THE SIGNIFICANCE, PRIORITY, OR IMPORTANCE TO BE GIVEN THE REFERENCED ENTITY, PRODUCT, SERVICE, OR ORGANIZATION. SUCH REFERENCES ARE NOT AN OFFICIAL OR PERSONAL ENDORSEMENT OF ANY PRODUCT, PERSON, OR SERVICE, AND MAY NOT BE QUOTED OR REPRODUCED IN A WAY THAT IMPLIES WELLSET’S ENDORSEMENT OR APPROVAL OF ANY PRODUCT, PERSON, OR SERVICE. WHEN YOU SELECT A LINK TO AN OUTSIDE WEBSITE, YOU ARE LEAVING THE WELLSET DOMAIN AND ARE SUBJECT TO THE PRIVACY AND SECURITY POLICIES OF THE OWNERS/SPONSORS OF THE OUTSIDE WEBSITE. WELLSET DOES NOT CONTROL NOR GUARANTEE THE ACCURACY, RELEVANCE, TIMELINESS, OR COMPLETENESS OF INFORMATION CONTAINED ON AN EXTERNALLY LINKED WEBSITE.
9.4 YOUR RIGHTS MAY VARY. SOME STATES OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. YOU MAY HAVE OTHER RIGHTS WHICH MAY VARY FROM STATE TO STATE OR IN OTHER JURISDICTIONS.
10. LIMITATION OF LIABILITY
10.1 NO CONSEQUENTIAL DAMAGES. IN NO EVENT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, WELLSET, ITS AFFILIATES OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES OR REPRESENTATIVES (COLLECTIVELY “WELLSET” FOR PURPOSES OF THIS SECTION) BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES RESULTING FROM THE PERFORMANCE, USE OF OR THE INABILITY TO USE THE SITE OR THE SERVICES, EVEN IF WELLSET HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, VIOLATION OF STATUTE OR OTHERWISE. WELLSET WILL NOT BE LIABLE FOR THE COST OF SERVICES, LOSS OF REVENUE OR LOSS OF GOOD WILL.
10.2 OUR LIABILITY IS LIMITED. IN ANY EVENT, OUR AGGREGATE LIABILITY WILL NOT EXCEED THE AGGREGATE AMOUNT ACTUALLY COLLECTED BY US FROM YOU FOR THE SERVICES TO WHICH THE CLAIM RELATES OR, IF THE CLAIM DOES NOT RELATE TO A SERVICE, $100. THIS PROVISION IS NOT INTENDED TO EXCLUDE LIABILITY THAT WE MAY NOT EXCLUDE UNDER APPLICABLE LAW.
10.3 YOUR RIGHTS MAY VARY. BECAUSE SOME STATES OR JURISDICTIONS MAY NOT ALLOW LIMITATIONS ON THE DURATION OF IMPLIED WARRANTIES, OR LIMITATIONS ON OR EXCLUSIONS OF CONSEQUENTIAL OR INCIDENTAL DAMAGES, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU DEPENDING ON YOUR STATE OR NATION OF RESIDENCE.
10.4 Data. You are responsible for the creation, storage, and backup of your business records. These Terms and any registration for or subsequent use of this Site or the Services will not be construed as creating any responsibility on WellSet’s part to store, backup, retain, or grant access to any information or data for any period.
You agree to defend, indemnify and hold harmless WellSet, its affiliates and their respective directors, officers, employees and agents (the “Indemnified Parties”) from and against any and all claims, damages, losses, liabilities and expenses (including attorneys’ fees) incurred in connection with any third-party claim brought or asserted against any of the Indemnified Parties: (a) alleging facts or circumstances that would, if true, constitute a violation of any provision of these Terms by you; (b) alleging bodily injury, death, property damage or other damages arising from your or a third party’s use or misuse of any service purchased by you on this Site; (c) arising from or related to any other party’s access and use of the Services with your unique username, password or other appropriate security code (if such codes are required to access Services in the future); (d) arising from or related to our use of your User Content in the context of the Services; (e) arising from a claim that the Practitioner has been misclassified and is or may be an employee of Client or WellSet; (f) your failure to comply with applicable law; (g) defamation, libel, or infringement of any intellectual property right by you and/or violation of any other third party right; (f) arising from, related to, or connected with your use or misuse of the Site or Services, including any payment obligations incurred through your use of the Site; (g) your failure to comply with payments hereunder; or (h) any acts or omissions of the Practitioner and/or Client, as applicable. We may, in our sole and absolute discretion, control the disposition of any such claim at your sole cost and expense. You may not settle any such claim without our express written consent. This defense and indemnification obligation are intended to extend to the fullest extent permitted by law and will survive these Terms and your use of the Site.
12. TERMINATION; SURVIVAL
12.1Term. These Terms are effective unless and until terminated by you or us. We may, in our sole and absolute discretion and without any liability, modify, suspend or discontinue any aspect of the Site, temporarily or permanently, at any time and without prior notice.
12.2 Modification and Termination of Site and Services. We may terminate the Site or the Services, your access to the Services, in part or as a whole, at any time, for any or no reason, and without notice or liability to you. These terms were last revised on July 1, 2019. Click here to [SM6] see a prior version of the Terms.
12.3 Suspension or Termination. We may deny you access to all or part of the Site at any time for any reason (including if you violate these Terms, as determined in our sole and absolute discretion) or no reason at all.
12.4 Effect of Termination. If you terminate your account, you will remain liable under these Terms for any purchase made prior to termination. If we terminate your right to access the Site, these Terms will terminate and all rights you have to access the Site will immediately terminate. The provisions that by their nature should survive shall survive.
You and WellSet agree that any dispute that has arisen or may arise between us relating in any way to your use of or access to the Services or Site, any breach, enforcement, or termination of these Terms, or otherwise relating to WellSet in any way (collectively, “Covered Matters”) will be resolved in accordance with the provisions set forth in this Section 13.
13.1 Informal Resolution. If you have any dispute with us, you agree that before taking any formal action, you will contact us at email@example.com, provide a brief, written description of the dispute and your contact information (including your username, if your dispute relates to an account) and allow sixty (60) days to pass, during which we will attempt to reach an amicable resolution of any issue.
13.2 Applicable Law. United States federal law, and (to the extent not inconsistent with or pre-empted by federal law) the laws of California, without regard to conflict of laws principles, will govern all Covered Matters.
13.3 Arbitration. These Terms and each of its parts evidence a transaction involving interstate commerce, and the Federal Arbitration Act applies in all cases and governs the interpretation and enforcement of the arbitration rules and arbitration proceedings. Any claims arising out of, relating to, or connected with these Terms must be asserted individually in binding arbitration administered by JAMS in accordance with JAMS Streamlined Arbitration Rules and Procedures (including, without limitation, utilizing desk, phone, or video conference proceedings where appropriate and permitted to mitigate costs of travel) and the JAMS Policy on Consumer Arbitrations Pursuant to Pre-Dispute Clauses Minimum Standards of Procedural Fairness (which will prevail over any inconsistent terms in this Section 13.3). The arbitrator shall not conduct any form of class or collective arbitration nor join or consolidate claims by or for individuals. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or formation of these Terms, including, any claim that all or any part of these Terms is void or voidable or a particular claim is subject to arbitration. Judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
13.7 Future Amendments to the Agreement to Arbitrate. Notwithstanding any provision in the Terms to the contrary, you and we agree that if we make any amendment to this agreement to arbitrate in the future, that amendment shall not apply to any claim that was filed in a legal proceeding against WellSet prior to the effective date of the amendment. The amendment shall apply to all other disputes or claims governed by the agreement to arbitrate that have arisen or may arise between you and WellSet. If you do not agree to these amended terms, you may close your account within thirty (30) days of the posting or notification and you will not be bound by the amended terms.
13.8 Judicial Forum for Legal Disputes. Unless you and we agree otherwise, in the event that the agreement to arbitrate above is found not to apply to you or to a particular claim or dispute, either as a result of your decision to opt out of the agreement to arbitrate, as a result of a decision by the arbitrator or a court order or because you have chosen to file an eligible lawsuit in small claims court, you agree that any claim or dispute that has arisen or may arise between you and WellSet must be resolved exclusively by a state, federal, or small claims court located in Los Angeles County, California. You and WellSet agree to submit to the exclusive personal jurisdiction of the courts located within Los Angeles County, California for the purpose of litigating all such claims or disputes.
13.9 Opt-Out. IF YOU ARE A NEW WELLSET USER, YOU CAN CHOOSE TO REJECT THE AGREEMENT TO ARBITRATE PROVISION (“OPT-OUT”) BY EMAILING US AN OPT-OUT NOTICE TO ARBITRATIONOPTOUT@WELLSET.COM EMAIL ADDRESS (“OPT-OUT NOTICE”) OR VIA US MAIL TO: WellSet, Inc., 1001 BRIDGEWAY SUITE 606, SAUSALITO CA 94965. THE OPT-OUT NOTICE MUST BE RECEIVED NO LATER THAN THIRTY (30) DAYS AFTER THE DATE YOU ACCEPT THESE TERMS FOR THE FIRST TIME. IF YOU ARE NOT A NEW WELLSET USER, YOU HAVE UNTIL THIRTY (30) DAYS AFTER THE POSTING OF THE NEW TERMS TO SUBMIT AN ARBITRATION OPT-OUT NOTICE.
13.10 Procedure. In order to opt-out, you must email your name, address (including street address, city, state, and zip code), and email address(es) associated with your Account(s) to which the opt-out applies and an unaltered digital image of a valid driver’s license which matches the name on your account to: firstname.lastname@example.org. This procedure is the only way you can opt out of the agreement to arbitrate. If you opt out of the agreement to arbitrate, all other parts of these Terms and its Disputes Section will continue to apply to you. Opting out of this agreement to arbitrate has no effect on any previous, other, or future arbitration agreements that you may have with us.
13.11 WAIVER. BY AGREEING TO THESE TERMS, YOU HEREBY IRREVOCABLY WAIVE ANY RIGHT YOU MAY HAVE TO A COURT TRIAL (OTHER THAN SMALL CLAIMS COURT AS PROVIDED BELOW) OR TO SERVE AS A REPRESENTATIVE, AS A PRIVATE ATTORNEY GENERAL, OR IN ANY OTHER REPRESENTATIVE CAPACITY, OR TO PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS, IN ANY LAWSUIT, ARBITRATION OR OTHER PROCEEDING FILED AGAINST US AND/OR RELATED THIRD PARTIES.
13.12 STATUTE OF LIMITATIONS. REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO USE OF THE SITE, SERVICES, OR THE TERMS MUST BE FILED WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION ARISES OR IT WILL BE FOREVER BARRED.