For users For business owners
Business Terms and Conditions
1. Accepting the agreement
2. Software Service
WellnessLiving provides online business management software designed specifically for businesses in the wellness industry. WellnessLiving will make the Software Service to which you have subscribed indicated in the Software Licensing Agreement available to you, subject to the terms and conditions hereto.
In addition to our rights set forth in the Section titled “Termination” of this Agreement, we reserve the right to suspend the Software Service (a) during planned downtime (b) in connection with a Force Majeure event , or (c) if we believe any malicious software is being used in connection with your account. In addition, we reserve the right to change, suspend or discontinue any features, components or functions of the Software Service at any time. If we make any material changes to the Software Service, we’ll notify you within the Software Service or by sending you an email. Notwithstanding the above, we have no obligation to update or enhance any Software Services or to produce or release new versions of the Software Service.
3. License grant & restrictions
WellnessLiving hereby grants you, during the terms of this Agreement, the non-exclusive, non-transferable, worldwide right to use the Software Service, solely for the your own internal business purposes, subject to the terms and conditions of this Agreement. All rights not expressly granted to you are reserved by WellnessLiving and its third party licensors or suppliers (collectively, the “
You shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Software Service or the content provided by or on behalf of WellnessLiving through the Software Service (the content) in any way; (ii) modify or make derivative works based upon the Software Service or the content; (iii) create Internet “
to the Software Service or “
any content on any other server or wireless or Internet-based device; or (iv) reverse engineer or access the Software Service in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Software Service, or (c) copy any ideas, features, functions or graphics of the Software Service. You agree that WellnessLiving may publish, modify and amend any and all content appearing within WellnessLiving.com, the Software Service and all other internet domains or content feeds owned, managed, or controlled by WellnessLiving, including content consisting of promotions, advertisements and listings for non-competing local businesses, or products and services offered by WellnessLiving.
4. Ownership of intellectual property rights and Customer Data
You acknowledge and agree that, subject to the license grants contained in this Agreement, WellnessLiving, or its licensors, retains all right, title and interest, including all related intellectual property rights, in and to the WellnessLiving technology, the Content and the Software Service and any suggestions, ideas, enhancement requests, feedback, recommendations (collectively, “Feedback”) or other information provided by you or any other party relating to the Software Service. You retain all right, title and interest to any and all customer data, including client or consumer review data, captured by the WellnessLiving system (“Customer Data”) or provided to WellnessLiving, subject to WellnessLiving’s right to use such Customer Data to provide the Software Service to you. You grant WellnessLiving a royalty-free, irrevocable, non-exclusive, perpetual, worldwide license to use, modify, aggregate, prepare derivative works, publish, distribute and sublicense the client or consumer review data and any surveys WellnessLiving conducts on your behalf. This Agreement is not a sale and does not convey to you any rights of ownership in or related to the WellnessLiving Software Service, WellnessLiving technology, WellnessLiving Content, or WellnessLiving intellectual property except for the limited licenses granted to you under this Agreement. Any and all software, algorithms, applications, source codes, structures, sequences, routines, sub-routines and related programming, engineering or technological matter developed or created by WellnessLiving or its licensors (and all copyrights, patents, trademarks and other proprietary rights related thereto) shall remain the sole, exclusive and perpetual property of WellnessLiving or its licensors. WellnessLiving works with third parties to offer its customers additional products and services from time to time. WellnessLiving collects anonymized, aggregate data in order to provide such additional product and services to you and you agree to permit us to use such anonymized, aggregate data.
The trademarks, trade names, service names or logos associated with the Service (collectively, the “Marks”) are trademarks of WellnessLiving or its licensors, and no right or license is granted to use them. You hereby acknowledge WellnessLiving or its licensors’ perpetual and exclusive ownership of and title to the Marks and the goodwill attaching thereto. You agree not to use or attempt to register any Mark that is confusingly or deceptively similar to the Marks.
5. Customer responsibility and passwords
You are responsible for all activity occurring under your subscriber user accounts, and shall abide by all applicable local, state, provincial, national and foreign laws, treaties and regulations in connection with your use of the Software Service, including those related to data privacy, international communications and the transmission of technical or personal data. You also will choose a password and a user name. You are entirely responsible for maintaining the confidentiality of your password, username and account. Furthermore, you are entirely responsible for any and all activities that occur under your account. You agree to notify WellnessLiving immediately of any unauthorized use of your account or any other breach of security. WellnessLiving will not be liable for any loss that you may incur as a result of any act or omission by anyone other than WellnessLiving, either with or without your knowledge. You warrant and represent that: (i) the content to be transmitted by or on behalf of you does not constitute SPAM; (ii) the content to be transmitted by or on behalf of you is not illegal, threatening, hateful, vulgar, obscene, libelous or defamatory and does not and will not infringe upon any trademark, patent, copyright, trade secret or other proprietary, publicity or privacy right of any third party; and (iii) you have complied and will comply with all applicable laws respecting its execution and performance of this Agreement.
6. Customer Data and account information
WellnessLiving does not own any Customer Data, information or material that you submit to the Software Service in the course of using the Service Service. Except in accordance with this Agreement, if applicable, or as required by law, Customer Data in identifiable form will not be disclosed, sold, assigned, licensed or otherwise disposed of by WellnessLiving to any third party. You, not WellnessLiving, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data, and, except as provided in this Agreement or as required by law, WellnessLiving shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data, or for the improper or erroneous upload or extraction of any Customer Data. WellnessLiving reserves the right to withhold, remove and/or discard Customer Data without notice for any breach, including, without limitation, your non-payment as specified in this Agreement. Upon termination for cause, your right to access or use Customer Data immediately ceases, and, except as set forth in the Section titled “Listing services”, below, WellnessLiving shall have no obligation to maintain or forward any Customer Data. Notwithstanding the foregoing, if you are part of a franchise organization which has or later executes an agreement with WellnessLiving, and the franchisee has granted the franchisor access to their data, your Customer Data may be shared with your franchisor, and/or franchise association.
WellnessLiving may, but has no obligation to, monitor any content created by you using the Software Service. WellnessLiving may disclose any information necessary or appropriate to satisfy WellnessLiving’s legal obligations, protect WellnessLiving or its customers, or operate the Software Service properly. WellnessLiving, in its sole discretion, may refuse to post, remove, or require you to remove, any of your content, in whole or in part, alleged to be unacceptable, undesirable, inappropriate, or in violation of this Agreement. WellnessLiving may, in its discretion, also require you to place all or any portion of your content behind password protection. If WellnessLiving has requested you content be or have placed behind password protection, you may not publish the password or similar information in any way that limits the effectiveness of the password. If WellnessLiving requests that you place any of your content behind password protection and you fail to do so promptly, WellnessLiving may (a) place such content behind password protection itself, or (b) immediately terminate this Agreement.
7. Limited liability
IN NO EVENT SHALL WELLNESSLIVING, ITS SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, LICENSORS, PARTNERS OR AFFILIATES BE LIABLE FOR: (I) ANY INDIRECT, INCIDENTAL, UNFORESEEABLE, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES; (II) ANY DAMAGES FOR LOSS OF PROFITS, LOSS OF EARNINGS OR LOSS OF BUSINESS OPPORTUNITIES, EVEN IF WELLNESSLIVING HAS BEEN ADVISED OR WARNED BY YOU, CUSTOMER OR END USER OF THE POSSIBILITY OF SUCH DAMAGES; (III) COSTS OF PROCUREMENT OR SUBSTITUTE GOODS OR SERVICES; (IV) LOSS OF DATA OR OTHER CUSTOMER CONTENT, END USER DATA OR CARDHOLDER DATA, RESULTING FROM DELAYS, NON-DELIVERIES, MISDELIVERIES, SECURITY BREACHES TO, SERVICE INTERRUPTIONS TO, OR ERRORS OR OMISSIONS RESPECTING THE SOFTWARE SERVICE OR THE OPERATION OF WELLNESSLIVING OR ITS LICENSOR' NETWORKS; OR (V) LOSSES OR LIABILITIES DUE IN WHOLE OR IN PART TO INADVERTENT, PREMATURE OR UNAUTHORIZED RELEASE OR DISCLOSURE OF INFORMATION BY YOU, CUSTOMER VIA WELLNESSLIVING OR ITS LICENSORS' NETWORKS. THE TOTAL CUMULATIVE LIABILITY OF WELLNESSLIVING TOGETHER WITH ITS SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, LICENSORS, PARTNERS AND AFFILIATES TO CUSTOMER OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SOFTWARE SERVICE IS LIMITED TO THE AMOUNT OF FEES YOU PAY AS IT PERTAINS TO YOUR LOCATION ONLY, TO WELLNESSLIVING IN THE 12 MONTHS PRIOR TO THE ACTION GIVING RISE TO LIABILITY. The foregoing limitations will apply even if WellnessLiving has been notified of the possibility of such damages and notwithstanding the failure of the essential purpose of any limited remedy. No action or claim relating to this Agreement shall be made against WellnessLiving or its Licensors, subsidiaries, officers, directors, employees, partners or affiliates by You, or on Your behalf more than 2 years (24 months) after the event giving rise to such action or claim.
You agree to indemnify and hold WellnessLiving (including its parent, subsidiaries, affiliates, officers, directors, agents, and employees, contractors, sub-contractors, Licensors, partners and affiliates) harmless from any claim or demand, including reasonable attorney's fees, made by any third party due to or arising out of your breach or alleged breach of this Agreement or the documents it incorporates by reference, or your violation of any law or the rights of a third party (including without limitation any negligent, willful, tortious or illegal conduct by you affecting a third party).
This Agreement will be in force throughout the Term beginning on the Subscription Start Date. This Agreement will AUTOMATICALLY RENEW each year for a 12-month period on the anniversary of the Subscription Start Date (“
). If you choose not to renew, you must notify WellnessLiving in writing at least 30 days prior to the Renewal Date, in which case, you will continue to have access to the Software Service and be billed until the end of the then current term. All month-to-month Software Service plans require 30 days written notice to WellnessLiving prior to the date of cancellation, and you will continue to be billed for the Software Service until such time that is 30 days from the date that written notice is provided. All Software Service plans or subscriptions that are not on a month-to-month basis require 30 days written notice as well as a cancellation fee being the lower of the aggregate amount of the payments due as if the Software Service plan had continued until the end of the then current term or the aggregate of the discounted amount applied to the payments made or billed during the then current term. The discounted amount is the difference between the Subscription Fee billed or paid by you or paid by the licensee responsible for paying and the Regular Subscription Fee normally charged for your Software Service plan. Should your cancellation date fall during a subscription period or month the full monthly subscription fee will be charged or billed, no partial subscription fees will apply and no partial subscription credits will be granted for any cancellation fees or fees in lieu of cancellation notice. No cancellation fees will apply so long as written cancellation notice is provided within the first 30 days of the term for new subscription plans 12 months or greater (this does not apply to any renewal period). Otherwise our standard policies and conditions apply.
Any breach of your payment obligations or unauthorized use of the WellnessLiving Technology, Content or Software Service will be deemed a material breach of this Agreement. WellnessLiving, in its sole discretion, may terminate your password, account or use of the Software Service if you breach or otherwise fail to comply with this Agreement. In addition to any other rights granted to WellnessLiving herein, WellnessLiving reserves the right to suspend or terminate this Agreement and your access to the Software Service if your account becomes delinquent, or otherwise engage in fraudulent or unlawful activities. In addition, WellnessLiving may terminate a free account at any time in its sole discretion. You agree and acknowledge that WellnessLiving has no obligation to retain the Customer Data, and may delete such Customer Data on termination or if you have materially breached this Agreement, including but not limited to failure to pay Software Service fees, and such breach has not been cured within 15 days of notice of such breach. In addition, WellnessLiving may terminate this Agreement in the event that you request a refund pursuant to Section 11 in three consecutive months. WellnessLiving will have no liability for any suspension or termination of your account in accordance with this paragraph.
11. Billing & Pricing
Pricing for the subscribed Software Services (“Subscription Fees”) are set forth on our website at https://www.wellnessliving.com/home/price.html (or such other URL as specified by WellnessLiving), and may be updated by WellnessLiving from time to time, or as otherwise stated in the Software Licensing Agreement. You agree to pay WellnessLiving the Subscription Fees and any other applicable fees stated in your Software Licensing Agreement. All payment obligations under this Agreement are non-cancelable and all fees paid are non-refundable. Unless otherwise stated in a Software Licensing Agreement, fees must be paid in advance of each billing period. WellnessLiving charges and collects in advance for use of the Software Service. No refunds will be provided for fees billed to you or that have been paid unless you were billed or a payment was processed in error. You will be billed your monthly fee on the date you start or are given access to your Software Service for the first month of Software Service and the monthly Subscription Fee thereafter. WellnessLiving will automatically renew as per Section 8, and bill your credit card/bank account or other form of payment or issue an invoice to you every month for monthly fees. The renewal charge will be equal to the then-current license fee in effect at the time of renewal. These fees are subject to change from time to time, at any time, without notice. It is your responsibility to provide WellnessLiving with any changes in your payment details such as updating your credit card, or any changes to your banking information. Should your primary form of payment be returned as incomplete, rejected or cancelled we will immediately charge or debit your secondary form of payment (credit card/bank account or other) together with any fees or additional charges incurred because of the failure to complete the processing through your primary form of payment. Your secondary form of payment will be used thereafter on an going forward basis without notice to you, until you provide WellnessLiving with updated billing information regarding your primary form of payment.
Fees for other services will be charged on an as-quoted basis, including but not limited to:
Unless otherwise stated, our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “
). You are responsible for paying all Taxes associated with your purchases or use of WellnessLiving. If WellnessLiving has the legal obligation to pay or collect Taxes for which you are responsible under this paragraph, the appropriate amount shall be invoiced to and paid by you, unless you provide WellnessLiving with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, WellnessLiving is solely responsible for taxes assessable against it based on its income, property and employees.
11.2 SMS Text Messages
WellnessLiving is capable of sending SMS text messages to your clients and provides you with 500 (“Professional Edition”) and 1000 (“Enterprise Edition”) SMS text messages per month in Canada & United States. You will be subject to a fee of $.025 USD per additional SMS Text Message beyond those that are included with your Edition of the Software Service. Customers in Canada & United States will be subject to a fee of $.025 USD per SMS Text Message sent if your Edition does not include an SMS Text Message bundle. Customers outside of Canada & United States, do not have free SMS text messages included in the Professional or Enterprise Editions of the Software Service, and additional fees will apply at the rate of .09 cents USD per SMS Text Message.
11.3 Direct Mail
By opting in to use WellnessLiving’s Direct Mail feature, you will be subject to the service fees charged per printed postcard sent. You assume full responsibility that any custom content you submit is correct, and in the event that you submit incorrect information, misspellings, grammatical errors, or incorrect address information etc., you agree to pay the service fees associated with printing and sending the postcard.
You or your third party licensee responsible for paying will provide WellnessLiving with valid and updated credit card information or another form of payment acceptable to WellnessLiving. If you provide credit card information, you represent that you are authorized to use the card and you authorize WellnessLiving to charge the card for all payments hereunder. By submitting payment information, you authorize WellnessLiving to provide that information to third parties for purposes of facilitating payment. You agree to verify any information requested by WellnessLiving for purposes of acknowledging or completing any payment. If you think that there is an error on your account, including an incorrect amount or unauthorized transaction, you agree to contact WellnessLiving prior to the next billing cycle. Upon proper notification, WellnessLiving, in its sole discretion may issue a credit to your bank account, credit card, debit card or whichever other payment method WellnessLiving determines as acceptable.
13. Representations & warranties
Each party represents and warrants that it has the power and authority to enter into this Agreement. WellnessLiving represents and warrants that it will provide the Software Service in a manner consistent with generally accepted industry standards. You represent and warrant that You have not falsely identified itself or its corporate entity nor provided any false information to gain access to the Software Service and that all Bank Card and other billing information that you have provided is correct. THE SOFTWARE SERVICE IS PROVIDED “
. EXCEPT AS EXPLICITLY SET FORTH ABOVE, WELLNESSLIVING IS NOT PROVIDING ANY WARRANTIES AND REPRESENTATIONS REGARDING THE SOFTWARE SERVICE, CONTENT OR TECHNOLOGY, AND WELLNESSLIVING AND ITS LICENSORS, DISTRIBUTORS, AND PARTNERS DISCLAIM ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND WITH REGARD TO THE SOFTWARE SERVICE, CONTENT AND TECHNOLOGY, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, FREEDOM FROM VIRUSES OR OTHER HARMFUL CODE, OR FITNESS FOR ANY PARTICULAR PURPOSE. FURTHER, WELLNESSLIVING AND THE AFFILIATES WILL NOT BE LIABLE FOR ANY DELAY, DIFFICULTY IN USE, INACCURACY OF INFORMATION, COMPUTER VIRUSES, MALICIOUS CODE OR OTHER DEFECT IN THE SOFTWARE SERVICE, OR FOR ANY OTHER PROBLEMS EXPERIENCED BY THE CUSTOMER DUE TO CAUSES BEYOND WELLNESSLIVING'S OR THE AFFILIATES’ CONTROL.
14. Email compliance
WellnessLiving has worked to achieve email compliance. You agree to comply with all elements of CAN-SPAM and safe sender email practices. This includes but not limited to including unsubscribe links, your full contact information in all correspondence, and not releasing private and/or confidential information. You may only use email services for those clients with which you have an existing business relationship and which have indicated that they accept correspondence from you. You may not attempt to spoof sender domains, send spam or other offending email practices including those covered in Section titled “Customer responsibility and passwords” of this agreement. Because of carrier technologies, WellnessLiving makes no expressed or implied warranty of individual message receipt. WellnessLiving is not liable for any issues that arise associated with the content that you provide or unforeseen liabilities of it being delivered.
15. Text message compliance
The Telephone Consumer Protection Act (TCPA) is a federal law regulating the way consumers are contacted by telephone, fax, and text message. The TCPA regulations apply to the text and automated landline messages you are able to send through the WellnessLiving Software Service to communicate with your clients.
15.1. Prior Consent
TCPA regulations require that companies obtain consent from consumers prior to sending any sort of text or automated telephone messages. For HIPAA covered entities, requirements for how consent is obtained are different depending on whether the messaging only contains health-related information or if it includes marketing-focused content. The TCPA regulations are described below to help you understand the restrictions. WellnessLiving automates text message communications, but you are responsible for ensuring that the recipients of those communications have provided prior express written consent to receive them.
15.2. Consent for Informational Health Care Messages
For HIPAA covered entities sending informational only health-related messages, the client’s consent can be written, electronic or verbal. With these guidelines, you can send your clients informational messages about their health care. Such health-related informational messages include appointment reminders without marketing content.
15.3. Consent for Marketing-Focused Messages
The Software Service can also be used to send or automate marketing-focused messages, which are subject to more stringent TCPA regulations. Messages with any sort of marketing content require that your client provide you with “express written consent”, which may be obtained in an electronic format. The prior express written consent must identify that you may be sending text messages related to your goods and services using automated technology and that your client affirmatively agrees to receive such messages. The prior express consent must include your clients’ written or electronic acceptance. Specifically, by entering a cell phone number into your Software Service and not opting such cell phone out of the WellnessLiving text message feature, you are directing WellnessLiving to automatically send text message reminders and other communications to such cell phone and certifying that the user of such cell phone consents to the receipt of those messages.
TCPA regulations require you to honor client requests to opt-out of future telephone, fax, or text messages. The Software Service allows you to honor these requests on an individual basis. A client may also opt-out of text messages at any time by replying with the word STOP to any text message sent through the WellnessLiving. You are responsible for all liability for any failure to receive consent or failure to opt users out of the text message feature.
15.5. Identity Disclosure
TCPA regulations require you to identify your business by name and telephone number in all text messages you send to clients. The Software Service enables you to comply with this rule by requiring you to include identifying tokens in all text message templates. You will not be able to send any text messages that do not contain complete and proper identification. Additionally, you may not attempt to spoof sender domains, send spam or other offending text message practices including those covered in the Section titled “Customer responsibility and passwords” of this Agreement.
WellnessLiving makes no expressed or implied warranty of individual message receipt. WellnessLiving shall not be liable for any issues that arise associated with the content that you provide or unforeseen liabilities of it being delivered. You shall be solely liable to comply with applicable laws and regulations within your jurisdiction in connection with telecommunication (e.g., email and text) messages that you send to your clients.
16. For Canada-based businesses subject to commercial electronic message requirements
You must comply with CASL requirements including, but not limited to, providing identification, making available an unsubscribe (opt-out) mechanism, and obtaining consent from the message recipient. You are responsible for applying all consent, identification, and opt-out requirements. For text messages, you agree to adopt the double opt-in process wherein 1) you may only use text message services for those clients with whom you have an existing business relationship and which have indicated that they accept correspondence from you and 2) the clients must reply to an opt-in message from their handset. For reliable delivery, you must adhere to message limitations including length and delivery, including that portion of the message which indicates who is sending the message, along with a mailing address, plus either a contact phone number, email address or contact page URL. You may not attempt to spoof sender domains, send spam or other offending text message practices including those covered in the Section titled “Customer responsibility and passwords” of this Agreement. Because of carrier technologies, WellnessLiving makes no expressed or implied warranty of individual message receipt. WellnessLiving shall not be liable for any issues that arise associated with the content that you provide or unforeseen liabilities of it being delivered. You agree to make your internal practices, books, and records, including policies and procedures and information, relating to this Agreement, available to WellnessLiving for the purposes of WellnessLiving determining your compliance with the obligation to secure consent for your clients to receive marketing messages and other communications (email, text, or other). Such information shall be made available in a time and manner reasonably requested by WellnessLiving.
17. Listing Services; WellnessLiving Directory
WellnessLiving may offer a complimentary listing service (the “
) under which your business information and client reviews (collectively, the “
) are submitted to search engines, indexes and web sites, as well as to the WellnessLiving service referred to as the “
You agree to participate in the Listing Service, and allow WellnessLiving to make this data available and provide registration services to the WellnessLiving Directory and third party sites. It is up to third party sites to accept the submissions, and WellnessLiving makes no warranty as to such sites' willingness to do so. For so long as Customer continues to subscribe to the Software Service, WellnessLiving will make a good faith attempt to ensure accuracy and confidentiality of the information we provide to third party sites under the Listing Service. We have no control of third party websites or resources that are provided by companies or persons other than that of WellnessLiving. Additional tools may be available from the third parties to provide additional updates to your information, but if you use such services, WellnessLiving is not liable for any claim arising out of the combination of such services with the information provided by the Listing Service. WellnessLiving may terminate your participation in the Listing Service, or this Agreement, at any time in the event that WellnessLiving determines that you are not in compliance with this Agreement. Upon termination of this Agreement by either party, the Business Information and any consumer reviews may remain in any data feeds provided to third parties under the Listing Service but is subject to removal at any time as determined by WellnessLiving. You may request explicit removal of the Business Information from such data feeds in writing, however WellnessLiving takes no responsibility in obtaining the removal thereof. Upon request at any time up to 30 days following termination of this agreement, WellnessLiving will provide you with an electronic copy of your Business Information, including consumer reviews, for which it has control over.
18. Governing law; venue; waiver of class action
This Agreement will be interpreted, construed, and enforced in all respects in accordance with the laws of the Province of Ontario, without reference to its choice of law principles to the contrary. You will not commence or prosecute any action, suit, proceeding or claim arising under or by reason of this Agreement other than in the Provincial Courts located in Ontario, Canada. The Customer irrevocably consents to the jurisdiction and venue of the courts identified in the preceding sentence in connection with any action, suit, proceeding, or claim arising under or by reason of this Agreement. To the extent permitted by applicable law, each party agrees that it will not bring or participate in any class action against the other party or its partners or affiliates relating to this Agreement or the Software Services, and each party hereby waives any rights to bring such claims.
If any provision of this Agreement is found to be invalid or unenforceable, then the remainder of this Agreement will have full force and effect, and the invalid provision will be modified, or partially enforced, to the maximum extent permitted to effectuate the original objective. This Agreement will bind and inure to the transferee of a party's business, and will be enforceable in the event of a change in ownership or control. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and merges and supersedes all prior agreements, understandings, negotiations, and discussions. Neither of the parties will be bound by any conditions, definitions, warranties, understandings, or representations with respect to the subject matter hereof other than as expressly provided herein. Failure by either party to enforce any term of this Agreement will not be deemed a waiver of future enforcement of that or any other term in this Agreement or any other agreement that may be in place between the parties. The section headings contained in this Agreement are for reference purposes only and will not affect in any way the meaning or interpretation of this Agreement. This Agreement is not intended to confer any right or benefit on any third party, and no action may be commenced or prosecuted against a party by any third party claiming as a third-party beneficiary of this Agreement or any of the transactions contemplated by this Agreement. No oral explanation or oral information by either party hereto will alter the meaning or interpretation of this Agreement. No amendments or modifications will be effective unless in writing signed by authorized representatives of both parties.
20. Force Majeure
Neither party will be liable for any failure or delay in performance under this Agreement (other than for delay in the payment of fees due and payable hereunder) for causes beyond that Party’s reasonable control and occurring without that Party’s fault or negligence, including, but not limited to, acts of God, acts of government, flood, fire, civil unrest, acts of terror, strikes or other labor problems (other than those involving WellnessLiving’s or your employees, respectively), computer attacks (by government/nation entities or otherwise) or malicious acts, such as attacks on or through the Internet, any Internet service provider, telecommunications or hosting facility. Dates by which performance obligations are scheduled to be met will be extended for a period of time equal to the time lost due to any delay so caused.
The following sections apply only if you are subject to the HIPAA Security and Privacy Rule.
21. HIPAA and Laws
In accordance with the provisions of the Health Insurance Portability and Accountability Act of 1996, and the regulations promulgated thereunder, including the Privacy Rule and Security, as amended (“HIPAA”), you agree to follow and abide to the following:
21.1. Specially Protected Information
- Ensuring that your use of the Software Service complies with applicable law, including but not limited to laws relating to maintenance of privacy, security, and confidentiality of patient and other health information.
- Implement and maintain appropriate administrative, physical and technical safeguards to protect information within the Software Service.
- Such safeguards must comply with federal, state, and local requirements, including the Privacy Rule and the Security Rule.
- Maintain appropriate security with regard to all personnel, systems, and administrative processes used by you or members of your workforce to transmit, store and process electronic health information through the use of the Software Service.
- If you are subject to HIPAA, prior to accessing or using the Software Service you must notify WellnessLiving and enter into a Business Associate Agreement (“BAA”). You are solely responsible for determining whether you are subject to HIPAA. You may send notice and request a BAA by emailing email@example.com.
WellnessLiving applies the standards of the Privacy Rule in permitting access to the Service.
- You acknowledge that other federal and state laws impose additional restrictions on the use and disclosure of certain types of health information, or health information pertaining to certain classes of individuals.
- You agree that you are solely responsible for ensuring that personal health information is subject to the restrictions of the Privacy Rule and applicable law. In particular, you will:
- not make available to other users through the Service any information in violation of any restriction on use or disclosure (whether arising from your agreement with such users or under law);
- obtain all necessary consents, authorizations or releases from individuals required for making their personal health information available to WellnessLiving; and
include such statements (if any) in your notice of privacy practices as may be required.
WellnessLiving is committed to maintaining the confidentiality of information entrusted to us, especially individually identifiable personal and health information. WellnessLiving follows its HIPAA policies and procedures. You are responsible for determining if the Software Service meets your compliance standards.
21.2. WellnessLiving’s Use of Protected Health Information
The Software Service may include use of your client’s Protected Health Information that you or your personnel input or upload onto the Software Service or that WellnessLiving receives on your behalf from your authorized service providers or our third party partners (“Your Health Information”). You retain all rights with regard to Your Health Information, and WellnessLiving will only use such information as expressly permitted in this Agreement and our Business Associate Agreement. You authorize WellnessLiving, as your business associate, to use and disclose Your Health Information as follows:
21.3. De-Identified Information
- WellnessLiving will permit access to Your Health Information by business associates to whom you have consented to provide access to the Software Service. You acknowledge that once WellnessLiving has granted access rights
to another covered entity (or their respective business associates), WellnessLiving has no control over the uses and disclosures that the business associate makes of Your Health Information, and the recipient may be
subject to its own legal or regulatory obligations (including HIPAA) to retain such information and make such information available to patients, governmental authorities and others as required by applicable law or
- WellnessLiving may “De-Identify” (means health information that has been de-identified in accordance with the provisions of the Privacy Rule) Your Health Information and use and disclose de-identified information as
provided by Section the section titled “WellnessLiving’s Use of Protected Health Information” in this agreement.
- WellnessLiving may create limited data sets from Your Health Information, and disclose them for any purpose for which you may disclose a limited data set; and you hereby authorize WellnessLiving to enter into data use
agreements on your behalf for the use of limited data sets, in accordance with applicable law and regulation.
- WellnessLiving may use Your Health Information in order to prepare analyses and reports, such as activity or quality-metrics reports, or any other reports the Software Service makes available, in order to render these
reports to you. Preparation of such analyses and reports may include the use of data aggregation services, which WellnessLiving may perform using Your Health Information. Such reporting will be done in a manner that does
not make any disclosure of Your Health Information that you would not be permitted to make.
- WellnessLiving may use Your Health Information for the proper management and administration of the Service and our business, and to carry out its legal responsibilities. WellnessLiving may also disclose Your Health
Information for such purposes if the disclosure is required by law, or WellnessLiving obtains reasonable assurances from the recipient that it will be held confidentially and used or further disclosed only (a) as required
by law (as such term is defined in 45 CFR §164.103), or (b) for the purpose for which it was disclosed to the recipient, and the recipient notifies WellnessLiving of any instances of which it is aware in which the
confidentiality of the information has been breached. Without limiting the foregoing, WellnessLiving may permit access to the system by our contracted system developers under appropriate confidentiality agreements.
In consideration of WellnessLiving’s provision of the Service, you hereby transfer and assign to WellnessLiving all right, title and interest in and to all De-Identified Information that WellnessLiving makes from Your Health Information. You agree that WellnessLiving may use, disclose, market, license and sell such De-Identified Information for any purpose without restriction, and that you have no interest in such information, or in the proceeds of any sale, license, or other commercialization thereof. You acknowledge that the rights conferred by this Section are the principal consideration for the provision of the Service, without which WellnessLiving would not enter into this Agreement.
21.4. Individuals’ Rights
You are solely responsible for affording individuals their rights with respect to relevant portions of Your Health Information, such as the rights of access and amendment. You will not undertake to afford an individual any rights with respect to any information in the Service other than Your Health Information.
22. Uptime Commitment
WellnessLiving will make the Software Service available to you on a twenty-four hour, seven days a week (24x7) basis at a rate of 99.9% (“Guaranteed Uptime”). Calculation of the Guaranteed Uptime will begin on the date you first access the Software Service with a paid subscription (“Start Date”) and will be measured over each consecutive twelve (12) month period ending on the anniversary of the Start Date (each, a “Service Period”). The Guaranteed Uptime will be calculated excluding downtime or performance issues caused by any of the following:
- Scheduled maintenance for which we give you at least twenty four (24) hours’ prior notice
- Force majeure event (as described in the Agreement)
- Overall Internet congestion, slowdown, or unavailability
- Suspension or termination of Software Service by WellnessLiving pursuant to the Agreement
- Your equipment or third party telecommunications, computer hardware, software, or network infrastructure not within the sole control of WellnessLiving
If the Software Service fails to meet the Guaranteed Uptime during a Service Period, as your sole and exclusive remedy, you may receive up to One (1) free month of Software Service credit to your account. If you believe the Guaranteed Uptime has not been met in a Service Period, in order to receive an account credit you must send a request via email to firstname.lastname@example.org no later than thirty (30) days after the end of the applicable Service Period. The email must include dates, times and descriptions of each instance of downtime, and any supporting calculations.
If you have questions regarding this Agreement or wish to obtain additional information, please send an e-mail to email@example.com.