WEGO Health Terms of Service
Last updated May 31, 2019
WG Health Enterprises, LLC (d/b/a WEGO Health), a Massachusetts corporation (the “Company”) is delighted that you have decided to become involved with WEGO Health. Before creating a Patient Leader profile, participating in any WEGO Health Program (as defined below), or using the WEGO Health Website located at www.wegohealth.com and related software and services (collectively, the “Platform”), you must read and agree to these Terms of Service (this “Agreement”).
By interacting with the Platform, you accept, and agree to be bound by, this Agreement. The Company may revise this Agreement at any time. If any such amendment results in a material change to the Agreement, as determined by the Company in its sole discretion, you will be informed of such changes via a notice on the Platform or email to the address you have registered with the Company. Any such changes shall be effective immediately, provided however, for existing account holders, such changes shall, unless otherwise stated, be effective thirty (30) days after posting. Continued use of the Platform after the effective date of any revisions to this Agreement constitutes your acceptance of the revised Agreement.
YOU UNDERSTAND THAT BY SIGNING UP FOR OR USING THE PLATFORM, YOU ARE AGREEING TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT ACCEPT THIS AGREEMENT IN ITS ENTIRETY, YOU MAY NOT ACCESS OR USE THE PLATFORM. IF YOU AGREE TO THIS AGREEMENTON BEHALF OF A LEGAL ENTITY: (A) YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY AND ANY REPRESENTATIVES IT ALLOWS TO ACCESS THE PLATFORM OR TO PROVIDE SERVICES VIA THE PLATFORM TO THIS AGREEMENT; (B) SUCH ENTITY IS RESPONSIBLE FOR ANY BREACH OF THIS AGREEMENT BY ANY OF ITS REPRESENTATIVES; AND (C) “YOU” AND “YOUR” AS USED HEREIN WILL REFER AND APPLY TO THAT ENTITY.
1. THE PLATFORM
1.1 Services. The Platform provides a venue for you, a Patient Leader, to meet and offer your advocacy, marketing and consulting services (“Services”) to individuals or businesses who are in the market for such Services (“Clients”) for one or more projects (“Projects”). Under this Agreement, the Company provides services to you in your capacity as a Patient Leader, including operating and providing the Platform, curating Projects with Client, managing Projects and Client relationships, and facilitating any payments owed to you for your Services.
1.3 No Conflict. You represent and warrant that you are not prohibited or limited in any way from acting as a Patient Leader on the Platform or providing Services to Clients to by (a) any contract (e.g., employment, consulting, confidentiality, or nondisclosure agreements), (b) your current employer’s policies or codes of conduct if you are employed, (c) any similar policies or obligations that limit your conduct in any way or (d) any rules of conduct applicable to your profession or industry or any similar laws, rules or regulations. Further, to the extent your ability to consult is limited in any way, you confirm that you have obtained all necessary consents or waivers to offer your Services on the Platform. Notwithstanding the foregoing, the Company may determine your eligibility to create an account on the Platform in its sole discretion.
1.4 Your Account. The Company reserves the right to validate your identity and account information at any time. When you create an account, you are applying to be reviewed by the Company for inclusion on the Platform. The Company has the sole right to determine whether to review your application and has the sole right to decide whether to include you on the Platform.
You are responsible for ensuring and maintaining the secrecy and security of your account password, and are responsible for any activities that occur on the Platform under your account. You must promptly notify the Company support at firstname.lastname@example.org immediately if you suspect that your password has been lost or stolen or if any unauthorized access or use of the Platform has occurred.
2. FEES AND PAYMENT
2.1 Fees. There is no cost to join or use the Platform. For certain Projects, the Company will collect fees from Clients and disburse payment to you for your Services pursuant to the applicable contract for aforesaid Project (“Service Contract”).
2.2 Disbursements. The Company functions as the payment processor for amounts Clients pay for your Services on the Platform, and the Company will automatically disburse funds to you in accordance with the payment terms under the applicable Service Contract. In cases of fraud, abuse or violation of this Agreement, the Company reserves the right to set off against any amounts due to you via the Platform any damages or costs the Company incurs as a result of such fraud, abuse or violation.
2.3 Disintermediation. You are required to receive all payments relating to, or in any way connected with, a Project through the Platform. During the Term, you shall not encourage, solicit or accept complete or partial payment for Services outside of the Platform, or otherwise circumvent the Company’s role as payment processor or the Platform’s payment methods, and any violation of the foregoing restrictions is a material breach of this Agreement. By way of illustration and not in limitation of the foregoing, within the Term you will not: (a) submit proposals to, deliver services to, invoice or receive payments or other consideration from any Clients for whom you have performed services or been introduced to through the Platform except via the Platform; (b) contact a Client outside of the Platform in order to secure a Project that the Client has posted on the Platform; or (c) invoice or report on the Platform an invoice amount lower than that actually agreed upon between you and a Client through the Platform. YOU WILL NOTIFY THE COMPANY IMMEDIATELY IF A CLIENT CONTACTS YOU OR SUGGESTS MAKING PAYMENTS OUTSIDE OF THE PLATFORM. If you become aware of a breach or a potential breach of the disintermediation policy in this Section 2.3, please report the issue to the Company by sending an email message to email@example.com.
2.4 Tax Reporting. You acknowledge that the Company will provide the necessary and appropriate IRS Form 1099 applicable to your requirement and responsibility to file the proper tax forms or remit to the appropriate authorities any taxes or similar charges applicable to the amounts the Company remits to you for Services. Otherwise, you shall be fully responsible for all federal, state and local tax filings and payments.
3. TERM AND TERMINATION
3.1 Term of the Agreement. This Agreement commences upon your initial interaction with the Platform, including any interaction that occurred before the date on which this Agreement was posted on the Platform, and continues until all Services expire or this Agreement is terminated by either party (the “Term”) pursuant to this Section 3 of this Agreement.
3.2 Termination of the Agreement. This Agreement and any Services may be terminated by either party for cause: (a) upon thirty (30) days written notice of a material breach to the other party if such breach remains uncured at the expiration of such period; or (b) if either party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
3.3 Early Termination. Subject to your obligation to complete Services for which you are engaged, you have the right to cancel your account at any time upon notice to the Company. The Company has the unlimited right to terminate or limit your account and/or access to the Platform at any time and for any reason, including, without limitation, (a) for violation of this Agreement, (b) requests by law enforcement or other government agencies, (2) discontinuance or material modification of the Platform or any Service offered on or through the Platform, or (b) unexpected technical issues. For the avoidance of doubt, canceling your account does not relieve you of your obligations with respect to the Confidentiality and Restrictive Covenant obligations set forth in Sections 7 and 8.
4. LICENSE AND RESTRICTIONS; OWNERSHIP
4.1 License Grant. Subject to your compliance with this Agreement, the Company hereby grants you a personal, non-exclusive, non-transferable, revocable, limited license to access and use the Platform to provide Services to Clients only, and subject to the limitations set forth below. The limited rights granted to you to access and use the Platform prohibit your right to sublicense. The grant of this license does not constitute the sale of any software program or other intellectual property.
4.2 Reservation of Rights. Subject to the limited rights expressly granted hereunder, the Company reserves all rights, title and interest in and to the Platform and the Services, including all related intellectual property rights. No rights are granted to you hereunder other than as expressly set forth herein.
4.3 Restrictions. You agree that you shall not:
- access or use the Platform if you are not fully able and legally competent to agree to this Agreement;
- use the Platform for fraudulent purposes or to engage in any libelous, malicious, offensive, indecent or objectionable conduct;
- license, sublicense, lease, rent, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Platform or the Services;
- copy, reproduce, adapt, create derivative works of, translate, localize, port or otherwise modify the Platform or any part thereof in any form or manner or by any means;
- harvest or scrape any content or data from the Platform;
- remove or alter any copyright or other proprietary rights notice or restrictive rights legend contained or included in the Platform;
- decompile, disassemble, reverse compile, reverse assemble, reverse translate or otherwise reverse engineer any part of the Platform or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law) ;
- utilize the Platform to (A) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws or (B) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs;
- circumvent any functionality that controls access to or otherwise protects the Platform; or
- permit any third party to engage in any of the foregoing.
Any attempt to do any of the foregoing is a material breach of this Agreement and a violation of the rights of the Company and its licensors. If you breach these restrictions, you may be subject to prosecution and damages.
4.4 Platform Ownership. The Platform’s “look and feel” (e.g., text, graphics, images, logos), proprietary content and software code, information and other materials are protected under intellectual property laws. You acknowledge and agree that the Company and/or its licensors own all rights, title and interest in and to the Platform (including all intellectual property rights therein or related thereto) and you agree not to take any action(s) inconsistent with such ownership interests. Any and all: (a) suggestions for correction, change and modification to the Platform and other feedback, information and reports you provide to the Company (collectively “Feedback”) ; and all (b) improvements, updates, modifications or enhancements, whether made, created or developed by the Company or otherwise relating to the Platform (collectively, “Revisions”), are and will remain the property of the Company. All Feedback and Revisions become the sole and exclusive property of the Company and the Company may use and disclose Feedback and Revisions in any manner and for any purpose whatsoever without further notice or compensation to you and without retention by you of any proprietary or other right or claim. You hereby assign to the Company any and all rights, title and interest that you may have in and to any and all Feedback and Revisions.
5. CONTENT POLICY
5.1 Company and Sponsor Content. The contents, advertisements, information and other materials of the Company and the Platform, and of all other websites under the Company’s control, whether partial or otherwise, such as text, graphics, images, logos, trademarks, copyrighted material, button icons, software and other content (collectively, “WEGO Health Content”) and the compilation (meaning the collection, arrangement and assembly) of all WEGO Health Content, are protected under copyright, trademark and other laws. As between you and the Company, all WEGO Health Content is the Company’s exclusive property. Unauthorized use of WEGO Health Content may violate copyright, trademark, and other laws. You must retain all copyright, trademark, service mark and other proprietary notices contained in WEGO Health Content on any permitted copy you make of WEGO Health Content. You shall not copy or adapt the code that the Company creates to generate any WEGO Health Content or the pages making up any Website, which is also protected by the Company’s copyright.
The contents, advertisements, information and other materials of any Company sponsor (“Sponsor”) or on any Sponsor’s website, and on all other websites under any Sponsor’s control, whether partial or otherwise, such as text, graphics, images, logos, trademarks, copyrighted material, button icons, software and other content (collectively, “Sponsor Content”) and the compilation (meaning the collection, arrangement and assembly) of all Sponsor Content, are protected by copyright, trademark and other laws. As between you and any Sponsor, all Sponsor Content is Sponsor’s exclusive property. Unauthorized use of Sponsor Content may violate copyright, trademark, and other laws. You must retain all copyright, trademark, service mark and other proprietary notices contained in Sponsor Content on any permitted copy you make of Sponsor Content. You may not sell or modify WEGO Health Content or Sponsor Content or reproduce, display, publicly perform, distribute, or otherwise use WEGO Health Content or Sponsor Content in any way for any public or commercial purpose, unless previously approved in writing by the Company or Sponsor (as applicable). The use of WEGO Health Content or Sponsor Content on any other website for any purpose is prohibited. For sake of clarity, you are not permitted to use any WEGO Health Content or Sponsor Content unless you are given express permission to do so by the Company or Sponsor (as applicable). By using the Website, you agree not to copy, distribute, modify or make derivative works of any materials without the prior written consent of the owner of such materials. Except as expressly set forth in this Agreement, no license is granted to you and no rights are conveyed by virtue of accessing or using the Website. All rights not granted under this Agreement are reserved by the Company.
5.3 Dashboard, Messaging and Work Product. During the course of your Projects, the Company will provide you a dashboard and messaging system on the Platform for the exchange of messages, documents and other information related to your Projects between you and the applicable Client. You agree that unless otherwise agreed in writing, the Platform’s dashboard and messaging system will be the exclusive means by which you communicate with and provide Work Product (as defined below) to Clients; all communications should be documented on the Platform. The Company reserves the right to delete all of your messaging and data related to a Project thirty (30) days after the end of that Project.
The Company is and will be the sole and exclusive owner of all right, title, and interest in and to all the results and proceeds of the Services performed under this Agreement and all other writings, technology, discoveries, processes, techniques, methods, ideas, concepts, research, proposals, and materials, and all other work product of any nature whatsoever, that are created, prepared, produced, authored, edited, modified, conceived, or reduced to practice in the course of performing the Services (collectively “Work Product”) including all patents, copyrights, trademarks (together with the goodwill symbolized thereby), trade secrets, know-how, and other confidential or proprietary information, and other intellectual property rights (collectively “Intellectual Property Rights”) associated therewith.
You agree that the Work Product is hereby deemed “work made for hire” as defined in 17 U.S.C. § 101 for the Company and all copyrights therein automatically and immediately vest in the Company. If, for any reason, any Work Product does not constitute “work made for hire,” you hereby irrevocably assign to the Company, for no additional consideration, your entire right, title, and interest in and to such Work Product, including all Intellectual Property Rights therein, including the right to sue for past, present, and future infringement, misappropriation, or dilution thereof.
5.4 Disclosure of Your Content. You acknowledge and agree that the Company may preserve and/or disclose your Content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to:
- comply with legal process, applicable laws or government requests;
- enforce this Agreement ;
- respond to claims that any of your Patient Leader Content violates the rights of third parties; or
- protect the rights, property, or personal safety of the Company, its affiliates, officers, employees, representatives and agents, as well as Platform users and the general public.
5.5 Prohibited Content. You are solely responsible for all of your Content, and agree not to upload any Content prohibited by applicable law or the restrictions in this Section. The Company reserves the right to investigate and take appropriate legal action against any Patient Leader who violates this Section. Specifically, you represent and warrant that none of your Content:
- includes non-public personal identifiable information or personal data that may be considered sensitive or privileged, such as financial information
- infringes any intellectual property, proprietary, contractual or privacy rights of any party;
- constitutes material, nonpublic information the disclosure of which would be in violation of securities laws;
- contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
- constitutes unsolicited or unauthorized advertising, promotional materials, commercial activities and/or sales, “junk mail”, “spam”, “chain letters”, “pyramid schemes”, “contests”, “sweepstakes”, or any other form of solicitation;
- is unlawful, harmful, threatening, abusive, harassing, tortious, violent, defamatory, vulgar, obscene, pornographic, libelous, or otherwise objectionable; or
- in the sole judgment of the Company, is objectionable or which restricts or inhibits any other person from using or enjoying the Platform, or which may expose the Company or its users to any harm or liability of any kind (collectively, “Prohibited Content”).
The Company has the right, but not the obligation, to monitor your use of the Platform, your Content and the Services you perform to determine your compliance with this Agreement. Notwithstanding the above, in the event that you upload Prohibited Content to the Platform in violation of this Agreement, you agree to remove such information immediately, or at its reasonable discretion and without prior written notice, the Company may purge such data from the Platform and its systems.
5.6 Destruction of Content. Upon written request by you made within 30 days after the effective date of termination of this Agreement, the Company will provide you with temporary access to the Platform so that you can retrieve your Content. After such 30-day period, the Company shall have no obligation to maintain or provide any Content and shall reasonably thereafter, unless legally prohibited, delete all Content from the Platform and in the Company’s systems or otherwise in its possession or control.
6. Photo, Video and Audio Release
In connection with your interaction with the Platform, provision of Services, and participation in any Projects, you may be required or requested to provide photos, videos and statements, participate in photo shoots, and participate in audio and video taping. Accordingly, you agree as follows:
(a) All statements, photographs, audio recordings or video recordings taken of you by the Company, its contractors or Clients, or submitted by you to the Company, its contractors or Clients, may be used by the Company, its contractors or Clients, for promotional, commercial or other purposes as determined by the Company anywhere in the world in its sole discretion. You shall not have any right to control the use or publication by the Company, its contractors or Clients, of the statements, photographs, audio recordings or video recordings.
(b) All statements, photographs, audio recordings or video recordings taken of you by the Company or its contractors, or submitted by you to the Company, shall be the sole property of the Company or its designee. You are not entitled to any compensation in connection with use of these statements, photographs, audio recordings or video recordings for promotional, commercial or other purposes.
(c) You hereby release, waive and discharge any claims of any kind or nature arising out of or relating to the use of the statements, photographs, audio recordings or video recordings which you may have against the Company or any person or firm authorized by the Company to publish said materials (“Publisher”). Such release, waiver and discharge shall also extend to all affiliated companies, shareholders, directors, officers, employees, agents and assigns of the Company and any Publisher.
(d) The releases of rights described above shall be binding on your successors, heirs, assigns, executors, administrators, spouse and next of kin.
YOU HAVE READ THIS SECTION 6 CAREFULLY AND YOU UNDERSTAND THAT YOU GIVE UP SUBSTANTIAL RIGHTS (INCLUDING RIGHTS RELATING TO PUBLICITY AND PRIVACY WITH RESPECT TO THE COMMERCIAL USE OF ANY STATEMENTS, PHOTOGRAPHS, AUDIO RECORDINGS OR VIDEO RECORDINGS) AND YOU AGREE TO THIS RELEASE FREELY AND VOLUNTARILY.
7.1. Definition of Confidential Information. As used herein, “Confidential Information” shall include (a) the identity of Clients, (b) information concerning any and all Projects, (c) information about any actual or potential business, investment, or transaction of any Client, (d) any Content exchanged through the Platform, (e) the terms and conditions of this Agreement and any Service Contract, and (d) any business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by the Company or Client. Confidential Information shall not include any information that (i) is or becomes generally known to the public other than as result of any disclosure in violation of this Agreement; (ii) was in your possession prior to it being furnished to you through the Platform without any disclosure; provided that the source of such information was not bound by a confidentiality agreement with the Company or the Clients; (iii) is or becomes available to you on a non-confidential basis from a source other than the Company or the Clients, provided that such source is not bound by a confidentiality agreement with the Company or applicable Clients; or (iv) was independently developed by you without use of, or reference to, the Confidential Information.
7.2 Protection of Confidential Information. You not to disclose or to attempt to use or personally benefit from (financially or otherwise) any Confidential Information that is disclosed to or known by you because of your activities on the Platform. Except as otherwise permitted in writing by the Company or an applicable Client: (i) you shall use the same degree of care that you use to protect the confidentiality of your own confidential information of like kind (but in no event less than reasonable care); (ii) you shall not disclose or use any Confidential Information for any purpose outside the scope of this Agreement; and (iii) you shall limit access to Confidential Information to those of your employees, contractors and agents who need such access for purposes consistent with this Agreement and who have agreed to abide by the terms herein as if they were a party hereto.
7.3. Compelled Disclosure. If you are compelled by order of a court or other governmental or legal body (or have notice that such an order is being sought) to divulge any Confidential Information to anyone, you will promptly notify the Company, unless prohibited from doing so by the express terms of a government subpoena or court order, and will cooperate fully with the Company in protecting such information to the extent possible under applicable law. Upon request by the Company or the applicable Client, you agree to return or destroy all Confidential Information in your possession. Notwithstanding the foregoing, if and only to the extent necessary, you may disclose the general topic and Client description to secure any required third-party consent to your activities on the Platform or in a Project prior to submitting a bid for that Project.
8. RESTRICTIVE COVENANTS
8.1 Non-Competition. In consideration of your license to use the Platform, you agree that, during the Term of this Agreement, you will use the Platform as your exclusive means of (i) communicating with and providing Services to the Clients ; and (ii) receiving all payments for Services provided to the Clients. Furthermore, you agree that during the Term and for a period of two (2) years following the termination of this Agreement, you shall neither, directly or indirectly, (a) interfere in any material respect with the business relationships between the Company and the Clients; or (b) solicit or entice any Clients or potential clients of the Company for purposes of diverting their business from the Company. This Section 8.1 applies only to those Clients who you were first introduced to by the Company through your Services, interactions with the Platform, or participation in any Projects.
8.2. Remedies. You acknowledge that a breach of this Section 8 would give rise to irreparable harm to the Company, for which monetary damages would not be an adequate remedy, and hereby agrees that in the event of a breach or a threatened breach by you of any such obligations, the Company shall, in addition to any and all other rights and remedies that may be available to it in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction
9. WARRANTY DISCLAIMER
THE COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES WITH REGARD TO THE SERVICES, WORK PRODUCT, PLATFORM OR ANY ACTIVITIES OR ITEMS RELATED TO THESE TERMS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE COMPANY DISCLAIMS ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS AND WARRANTIES INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON INFRINGEMENT.
10. LIMITATION OF LIABILITY
IN NO EVENT WILL THE COMPANY BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY OR INDIRECT COSTS OR DAMAGES, LITIGATION COSTS, INSTALLATION AND REMOVAL COSTS OR LOSS OF DATA, PRODUCTION OR PROFIT. THE TOTAL AGGREGATE LIABILITY OF THE COMPANY TO YOU FOR ANY CLAIM ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR USE YOUR OF THE PLATFORM WILL NOT EXCEED THE AMOUNTS REMITTED TO YOU BY THE COMPANY DURING THE SIX (6) MONTH PERIOD PRECEDING THE EVENT THAT GAVE RISE TO LIABILITY. THESE LIMITATIONS WILL APPLY TO ANY LIABILITY, ARISING FROM ANY CAUSE OF ACTION WHATSOEVER, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF THE COMPANY IS ADVISED OF THE POSSIBILITY OF SUCH COSTS OR DAMAGES AND EVEN IF THE LIMITED REMEDIES PROVIDED HEREIN FAIL OF THEIR ESSENTIAL PURPOSE.
You agree to indemnify and hold harmless the Company and its subsidiaries, Sponsors, affiliates, officers, employees, representatives and agents, and their respective successors and assigns (each, an “Indemnified Party”) from any and all claims, actions, damages, liabilities, costs, and expenses (including, but not limited to, reasonable attorneys’ fees and all related costs and expenses) arising from or relating to:
- your use of the Platform;
- any Services you provide;
- your Content;
- your violation of this Agreement;
- your violation of any law, rule, regulation or authority in connection with your performance of this Agreement, your use of the Platform, the Services you provide, or your involvement with any Project; and
- any negligent, reckless or intentional acts or omissions committed by you in connection with the entry into or performance of this Agreement, your use of the Platform, or your involvement with any Project.
12. CODE OF CONDUCT
The Company requires that you abide by the Federal Trade Commission’s Guides Concerning the Use of Endorsements and Testimonials in Advertising (http://www.ftc.gov/os/2009/10/091005revisedendorsementguides.pdf) (“FTC Endorsement Guides”). The Company believes in full transparency and in full, fair and effective disclosures of material facts relating to your relationship with the Company and its Sponsors. Per the FTC’s Endorsement Guides, if you are receiving free products, services, payment or other in-kind compensation in exchange for your participation in a Project or in return for promoting a Sponsor or its products/services, you must disclose your connection to the Company and/or its Sponsor. This disclosure should appear in close proximity to any statements you make about Sponsor’s products or services or the Sponsor in general.
13. DISPUTE RESOLUTION
13.1 Informal Process First. You agree that in the event of any dispute between you and the Company, you will first contact us and make a good faith sustained effort to resolve the dispute before resorting to arbitration under this Agreement.
13.2 Binding Arbitration. Any dispute or claim that remains unresolved after the informal dispute resolution described in Section 13.1, except for disputes relating to the infringement of the Company’s intellectual property rights or the access or use of the Platform in violation of this Agreement (a “Claim”), will be resolved by binding arbitration, rather than in court, provided that you may assert Claims in small claims court located in Suffolk County, Massachusetts if your Claims qualify.
13.3 No Judge or Jury. There is no judge or jury in arbitration, and court review of an arbitration award is limited; however, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the terms of this Agreement as a court would.
13.4 Arbitrator and Rules. The arbitration will be conducted before a neutral single arbitrator, whose decision will be final and binding, and the arbitral proceedings will be governed by the American Arbitration Association (“AAA”) Commercial Arbitration Rules, Consumer Due Process Protocol, and Supplementary Procedures for Resolution of Consumer Related Disputes. These rules can be found on the AAA website at www.adr.org.
13.5 Starting an Arbitration. To begin an arbitration proceeding, you must send us a notice of dispute, in writing, setting forth your name, address and contact information, the facts of the dispute and relief requested. You must send your notice of legal dispute to us at the following address: firstname.lastname@example.org. The Company will send any notice of dispute to you at the contact information we have for you.
13.6 Format of Proceedings. The arbitration will be conducted, at the option of the party seeking relief, by telephone, online, or based solely on written submissions.
13.7 Fees. If you initiate arbitration, your arbitration fees will be limited to the filing fee set forth in the AAA’s Consumer Arbitration Rules. Unless the arbitrator finds the arbitration was frivolous or brought for an improper purpose, the Company will pay all other AAA and arbitrator’s fees and expenses.
13.8 Individual Basis; Jury Trial Waiver. To the fullest extent permitted by applicable law, you and the Company each agree that any proceeding to resolve a Claim will be conducted only in the respective party’s individual capacity and not as a plaintiff or class member in any purported class, consolidated, multiple plaintiff or representative action (“Class Action”). If for any reason a Claim proceeds in court rather than in arbitration, you and the Company each waive any right to a jury trial. You and the Company expressly waive any ability to maintain any Class Action in any forum. If the Claim is subject to arbitration, the arbitrator will not have authority to combine or aggregate similar claims or conduct any Class Action nor make an award to any person or entity not a party to the arbitration. Any claim that all or part of this Class Action Waiver is unenforceable, unconscionable, void, or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator.
13.9 Limitation Period. In no event will any Claim, or any other action or proceeding by you (including arbitration under this Section 13) be instituted more than one (1) year after the cause of action arose.
13.10 Enforcement. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. The United Nations Conventions on Contracts for the International Sale of Goods will have no applicability.
13.11 Invalidity. If a court of competent jurisdiction finds the foregoing arbitration provisions invalid or inapplicable, you and the Company each agree to the exclusive jurisdiction of the Federal and State courts located in Boston, Massachusetts, and you and the Company each agree to submit to the exercise of personal jurisdiction of such courts for the purposes of litigating any applicable dispute or claim.
13.12 Opting Out. If you do not want to arbitrate disputes with the Company and you are an individual, you may opt out of this arbitration agreement by sending an email to email@example.com within thirty (30) days of the first of the date you access or use the Platform.
14.2 Assignability. You may not assign this Agreement or any of your rights or obligations hereunder without the Company’s prior written consent. The Company may freely assign this Agreement. Any attempted assignment or transfer in violation of this Section 14.2 will be null and void. Subject to the foregoing restrictions, this Agreement will inure to the benefit of the successors and permitted assigns of the parties.
14.3 Governing Law. This Agreement and any controversy, dispute or claim arising out of or relating to this Agreement will be governed by and construed in accordance with the laws of the jurisdiction in which you reside.
14.4 Notices; Consent to Electronic Notice. You consent to the use of electronic means to deliver any notices pursuant to this Agreement. Notices will be given:
- by the Company via email (in each case to the email address that you provide when registering your account) ;
- a reasonably prominent posting on the Platform; or
- by you via email to firstname.lastname@example.org.
14.5 No Waiver. The failure or delay of either party to exercise or enforce any right or claim does not constitute a waiver of such right or claim and will in no way affect that party’s right to later enforce or exercise it, unless such party issues an express written waiver, signed by a duly authorized representative of each party.
14.6 Severability. If and to the extent any provision of this Agreement is held illegal, invalid, or unenforceable in whole or in part under applicable law, such provision or such portion thereof will be ineffective as to the jurisdiction in which it is illegal, invalid, or unenforceable to the extent of its illegality, invalidity, or unenforceability,
14.7 Survival. Sections 1.3, 5, 6, 7, 8, 9, 10, 13 and 14.7 shall survive the termination of this Agreement.
ACCEPTANCE OF TERMS
Your registration, use of, and access to, the WEGO Health Platform constitutes your agreement to be bound by this Agreement. IF YOU DO NOT AGREE TO THESE TERMS OF SERVICE YOU MAY NOT CREATE AN ACCOUNT, ACCESS OR OTHERWISE USE THE SITE.