TERMS OF USE

These Terms of Use (the “Terms”), together with the other documents referenced and linked below (collectively, the “Agreement”), describe your rights and responsibilities as a user (“User”) of the apps.health site (“Site”) and the apps.health marketplace (“Marketplace”) (collectively, the “Services”) offered by WELL Health Technologies Inc., its subsidiaries and affiliates (collectively, “WELL”). In this Agreement, the terms “we”, “our” and “us” refer to WELL and the terms “you” and “your” refers to a User.

Your use of the Services, including through a visit of to the Site, constitutes your acceptance of the Agreement.  Therefore, please take the time to review them carefully.

If you do not agree with some or all of these terms, do not access or use the Marketplace.

 

  1. Using and Licensing Apps

The Marketplace is currently available to Canadian Users only. The Marketplace offers a digital forum to explore health related apps that may be stand-alone or may integrate with various electronic medical records programs or other software (“Apps”).  These Apps are developed and offered by third party developers and providers (“App Provider”) or may be offered by WELL directly.   If a User expresses interest in an App, the User will complete an intake form that WELL will provide to the App Provider.  Alternatively, the Marketplace may offer a link for Users to reach the App Provider directly.

Should a User decide to proceed with licensing the App, the User will enter into an agreement directly with the App Provider and not with WELL.  If WELL provides an App, the User may enter into a separate agreement with WELL.

WELL IS NOT AFFILIATED WITH OR RESPONSIBLE FOR THE CONTENT, FUNCTIONALITY OR PERFORMANCE OF ANY APP OFFERED BY AN APP PROVIDER OR THE INFORMATION REGARDING AN APP OR AN APP PROVIDER IN THE MARKETPLACE AND YOUR SELECTION AND USE OF ANY SUCH APP IS AND REMAINS AT YOUR OWN RISK. ALL APP PROVIDERS ARE INDEPENDENT PARTIES FROM WELL. WELL HAS NO CONTROL OVER AND SHALL THEREFORE ASSUME NO RESPONSIBILITY FOR ANY APP AND ITS CONTENT, FUNCTIONALITY, PRIVACY POLICY OR TERMS OF USE AND AVAILABLE OR RELATED PRODUCTS OR SERVICES UNLESS WELL OFFERS THE APP DIRECTLY UNDER SEPARATE TERMS.

You hereby acknowledge and agree that WELL is not responsible and does and will not have any liability for any App offered by an App Provider or any information provided by the App Provider that is located in the Marketplace.  While WELL has reviewed the Apps and the App Providers on a preliminary basis,  inclusion in the Marketplace, any other reference to an App offered by an App Provider and any reference to an App Provider is not an approval or endorsement by WELL of any App, any App Provider, or any product or service provided by any or App Provider or any third party on or through such App.

You should review the particulars for each App in order to determine whether the App is appropriate for you and whether the App Provider’s licensing terms are acceptable to you. WELL acts solely as an intermediary offering the opportunity for Users to access and use the Apps, and access to and use of the Marketplace shall not be construed as making WELL a publisher, provider, or licensor of any App unless WELL offers an App directly.

  1. Representations by Users

By downloading, accessing, or using the Marketplace, you represent and warrant that (i) you are in Canada; (ii) you are the legal age of majority in your province or territory of residence; (ii) you will at all times provide true, accurate, current, and complete information when submitting any registration forms or otherwise providing any information to WELL through the Marketplace; and (iii) if WELL collects payment for the use of the App, you will pay all required fees through any payment method prescribed by WELL, including, without limitation, through a credit card or any online payment processing service. Any breach of the foregoing representations and warranties entitles WELL to immediately terminate your access to the Marketplace and to seek all remedies available at law or equity.

  1. Registration for the Marketplace

Registration for access to and use of the Marketplace may require the creation of an account by setting up a username and a password, amongst other requirements designated by WELL in its sole discretion from time to time for User accounts.  You should keep your username and password confidential. You shall immediately notify WELL if you suspect or become aware of any loss or theft of your password or any unauthorized use of your user name and password. WELL will not be liable for any loss or damage arising from your failure (whether inadvertent or intentional) to comply with these obligations.

  1. Payment Terms

Some Apps may be offered without a fee.  For Apps where a fee is payable, payment by Users for the App will be made either directly to the App Provider or to WELL. Where payment is made to the App Provider, the App Provider’s terms of use will govern the payment process. Where WELL accepts payment for the App, WELL will provide the payment terms.  Pricing and availability of any and all Apps remains subject to change at any time in WELL’s or the App Provider’s sole discretion. If WELL collects the payment for the App, the Marketplace shall identify the then current fee(s) and related charge(s).  You are solely responsible for the payment of all fees and taxes (in each case, if any) for any App that you obtain from the Marketplace. If WELL collects payment, you hereby authorize WELL to charge your credit card, debit card or other payment method you have specified in your account for any and all fees and taxes payable for such App from time to time, as and when such payments become due.  While WELL may collect payment for an App,  WELL is not responsible for the App itself, unless WELL otherwise expressly agrees in writing.

When you license an App, WELL or the App Provider shall provide notice of the fee in effect at the time of download, request to license the App, or at a time specific to the selected App and then apply that fee. WELL and the App Provider reserve the right to change the fees owed for any App. If WELL or an App Provider later increases an on-going subscription or other periodic fee for an App, the increase may apply against the next payment due. For Apps requiring an on-going subscription or other periodic fee, if you do not wish to continue being assessed a fee for use of the App, review the terms of use of the App Provider for termination and cancellation provisions.

  1. Restrictions on Usage of Apps

WELL reserves the right in its sole discretion to review, monitor, and record any information relating to your use of the Marketplace (“User Information”) without any prior notice to or permission from you.   In addition, WELL hereby reserves the right in its sole direction to at any time and without notice modify, suspend, terminate, or interrupt operation of or access to the Marketplace, or any portion thereof, in order to protect the Marketplace, WELL.

WELL grants to Users a limited, non-exclusive, non-transferable, non-sublicensable and revocable license to access and use the Marketplace and the Materials (as defined in Section 8) for the sole purpose of browsing, locating, or purchasing a license to the offered Apps. All rights not expressly granted by WELL are hereby reserved. Accordingly, you are hereby prohibited from using the Services in any manner that is not expressly authorized by these Terms.

All rights not granted by WELL or an App Provider are reserved. In particular, you hereby agree not to directly or indirectly undertake the following: (a) sell, resell, lease, license, or sublicense the Marketplace or any App; (b) attempt to reverse engineer the Marketplace or any App (or any component of either); (c) attempt to create a substitute or similar marketplace or application through use of, or access to, the Marketplace or any App; or (d) use the Marketplace or any App to store or transfer any restricted or unlawful data, including, without limitation, any Marketplace data that is controlled for export under export control laws and re-export control laws and regulations.

All Apps are only available to you in the Marketplace for long as WELL has the right to make such App available. WELL therefore reserves the right to remove or suspend the availability of any App from the Marketplace for any reason and with no obligation to provide any explanation or notice. Please review the Marketplace from time to time to determine current App availability. In addition, if for some reason your account at WELL was disabled or accessed in an unauthorized manner, then you may be prevented from accessing the Marketplace or any files or any Apps that are associated with your WELL account. WELL does not provide any representation, warranty, or guarantee regarding its ability to store any data with or as a part of the Marketplace (or any App available therefrom). Users should keep a back-up of any data that may be stored within the Marketplace (or any App). WELL will not be responsible for any lost data for any reason.

  1. Use and Accuracy of Information

The Site and the Marketplace is provided for general information only.  Although WELL uses reasonable commercial efforts to ensure that the information contained on the Site and the Marketplace is accurate, WELL does not warrant or make any representation regarding the accuracy or completeness of any information or data provided on the Site or the Marketplace, including information regarding any aspect of the Apps.

  1. Other Terms

You understand and acknowledge that your use of the Services is also governed by the WELL Privacy Policy, which you have read and understand, and to which you agree. You consent to the collection, use and disclosure of your personal information by us and/or third parties in accordance with the terms of and for the purposes set forth in our Privacy Policy. In addition, you also agree that your use of the Services will also be subject to such other policies and procedures as may be conveyed to you by us from time to time, including via the Services.

  1. Ownership

Any use of any of the Materials (whether in whole or in part) is strictly prohibited, except only and to the limited extent expressly permitted above.

These Terms provide only a limited license to access and use the Marketplace. Accordingly, WELL does not transfer any ownership or intellectual property interest or title in and to the Marketplace to you or anyone else in connection with your use of the Marketplace. All text, graphics, user interfaces, visual interfaces, photographs, sounds, artwork, computer code (including html code), programs, software, products, information, and documentation as well as the design, structure, selection, coordination, expression, “look and feel,” and arrangement of any content contained on or available through the Marketplace (collectively, the “Materials”) are exclusively owned, controlled, or licensed by WELL. WELL, WELL Health, and all other names, logos, marks, and icons identifying WELL and its products, or services are owned exclusively by WELL, and any use of such marks without the prior express written permission of WELL is hereby expressly prohibited. Other trademarks or service marks identified on or through the Marketplace may be the trademarks or service marks of third parties, including App Providers.  No part of the Services will be construed as granting any license or right to use any trademarks (whether by implication or otherwise), including our trademarks, except with our express written permission or such other party that may be the owner thereof.  The Materials may be  protected under copyright, trademark and other laws of Canada and other countries, and WELL owns all copyright in the selection, co-ordination, arrangement and enhancement of the Materials.

  1. Submissions

For any content that you submit on the Site or through any social media platform, you grant WELL a, perpetual, irrevocable, royalty-free, transferable right and license to use, copy, modify, delete in its entirety, adapt, publish, translate, create derivative works from and/or sell and/or distribute such content and/or incorporate such content into any form, medium or technology throughout the world without compensation to you.

All content that you submit on or through the Site (or any social media platform) may be used at WELL’s sole discretion. WELL reserves the right to change, condense or delete any content on the Site (or any social media platform) that WELL deems, in its sole discretion, to violate any provision of these Terms. WELL reserves the right to remove or to refuse to post any submission for any reason. You acknowledge that you, not WELL, are responsible for the contents of your submission. None of the content that you submit shall be subject to any obligation of confidence on the part of WELL, its agents, subsidiaries, affiliates, partners, App Providers or third party service providers and their respective directors, officers and employees.

By submitting content to the Site or through social media, you represent and warrant that you are the sole author and owner of the intellectual property rights in the content and that you waive all moral rights in such content.  You must not submit, publish or otherwise disseminate to  WELL or through the Site (or a social media platform) anything which: (a) defames, libels or invades the privacy of any person; (b) is obscene, pornographic, abusive or threatening; (c) infringes on any intellectual property or other rights of any person or entity; (d) has contaminating or destructive properties (i.e. software viruses); (e) violates any law; (f) advocates or describes any illegal activity; or (g) advertises or solicits funds for goods or services. We will fully cooperate with any law enforcement authorities or court order requesting or directing us to disclose the identity of anyone posting any such information or materials.  We may enforce our rights to the fullest extent of the law should you breach any of these terms and conditions.

  1. Links

The Site and the Marketplace may contain links to other web sites.  These links are provided solely as a convenience to you and the inclusion of any link does not imply endorsement, investigation or verification by WELL of the linked web site or information contained therein.  Your use of such sites and your dealings with the owners or operators thereof, including the App Providers, are at your own risk.

  1. Errors and Inaccuracies; Corrections

The Site and the Marketplace may contain typographical errors or inaccuracies and may not be complete or current.  We therefore reserve the right to correct any errors, inaccuracies or omissions and to change or update information at any time without prior or any notice to you.

The Site, the Marketplace, the Materials and the Apps are provided “as is”, “where is”, “as available”, without representations or warranties of any kind by WELL.  TO THE FULL EXTENT PERMITTED BY LAW, WELL AND ALL DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS OF WELL DISCLAIM ANY AND ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS WITH RESPECT TO THE SITE, THE MARKETPLACE, THE MATERIALS AND THE APPS WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, OR ARISING BY COURSE OF DEALING OR USAGE OF TRADE, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE OR USE.  Without limiting the foregoing, we do not represent or warrant that the Site, the Marketplace, the Materials and the Apps are accurate, complete, reliable, useful, timely or current or that the Site, the Marketplace, or the Apps will operate without interruption or error.  We assume no responsibility, and are not liable for, any damages to your computer equipment, data or other property on account of your access to, use of, or browsing on the Site or the Marketplace or your use of any of the Apps, or inability to do any of the foregoing.

  1. Limitation of Liability

Your use of the Site, the Marketplace, the Materials and the Apps is undertaken at your own risk. Under no circumstances will WELL or any directors, officers, employees, agents, contractors and suppliers of WELL, be liable for any direct, incidental, consequential, indirect, or punitive damages arising out of your access to or use of the Site, the Marketplace, the Materials and the Apps, your reliance on the Site, the Marketplace, the Materials and the Apps, or any consequences flowing therefrom.  WELL is not responsible for late, lost, incomplete, illegible, misdirected or stolen messages, unavailable network connections, failed, incomplete, garbled or delayed computer transmissions, on-line failures, hardware, software or other technical malfunctions or disturbances or any other communications failures or circumstances affecting, disrupting or corrupting communications. THIS IS A COMPREHENSIVE LIMITATION OF LIABILITY THAT APPLIES TO ALL LOSSES AND DAMAGES OF ANY KIND (WHETHER GENERAL, SPECIAL, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, LOSS OF DATA, INCOME OR PROFITS OR FAILURE TO REALIZE ANTICIPATED BENEFITS), WHETHER BASED IN CONTRACT (INCLUDING FUNDAMENTAL BREACH), TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF WE HAVE BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.

If you are dissatisfied with the Site, the Marketplace, the Materials and the Apps or with this Agreement, your sole and exclusive remedy is to discontinue using the Site, the Marketplace, the Materials or the Apps, as applicable.

  1. Indemnification

You agree to indemnify and save harmless WELL and all directors, officers, employees, agents, contractors and suppliers of WELL (in this section, “we” and “us”) from and against any claim, cause of action, demand, cost, loss, expense or liability (including without limitation reasonable professional fees) brought against or suffered or incurred by us as a result of your use of the Site, the Marketplace, the Materials or the Apps or your breach of this Agreement. When we are threatened with suit or sued by a third party, we may seek written assurances from you concerning your promise to indemnify us; your failure to provide those assurances may be considered by us to be a material breach of this Agreement. In addition, in the event we are made a party to any claim, suit or action relating to or arising from any services offered by us that is: (a) initiated by you, which is unsuccessful; or (b) initiated by a third party, who is suing you; you will reimburse us at a reasonable rate for all personnel time and expenses expended by us in response to such claim, suit or action including without limitation, all attorney fees and expenses incurred by us with respect to such response. This defence and indemnification obligation will survive termination of this Agreement and your cessation of use of the Site, the Marketplace, or the Apps.

  1. Governing Law and Courts

This Agreement and your use of the Site and the Marketplace will be governed by and interpreted exclusively in accordance with the laws of the Province of British Columbia, and the federal laws of Canada applicable in British Columbia, excluding its conflict of laws rules and all private international laws. You further agree that despite being available from a variety of jurisdictions, the Site and the Marketplace will be deemed solely based in the Province of British Columbia, Canada; and that the Site and the Marketplace will be deemed to be passive in nature and not giving rise to personal jurisdiction over WELL in jurisdictions other than the Province of British Columbia. You consent and submit to the exclusive jurisdiction of the Courts located in the Province of British Columbia in all disputes arising out of or relating to your use of or inability to use the Site or the Marketplace and this Agreement. However, you agree that nothing herein precludes WELL’s application for injunctive remedies or other urgent legal relief in any jurisdiction.

  1. Severability; Waiver

The terms of this Agreement are severable. If any provision of this Agreement is determined to be unenforceable or invalid, then such provision will be enforced to the fullest extent permitted by applicable law, and such determination will not affect the validity and enforceability of any other remaining provisions.  No consent or waiver by either party to or of any breach or default by the other party in its performance of its obligations under this Agreement will be deemed or construed to be a consent to or waiver of a continuing breach or default or any other breach or default of those or any other obligations of that party. No consent or waiver will be effective unless in writing and signed by both parties.

  1. Survival

The provisions of Sections 1-6 and Sections 11-17 will survive termination of the Agreement, howsoever occasioned.

  1. Entire Agreement

This Agreement, together with those documents incorporated or referred to herein, constitute the entire agreement between you and us relating to your use of the Site, the Marketplace, the Materials and the Apps (other than Apps offered by WELL which may be subject to additional or separate terms), and supersedes any prior understandings or agreements (whether electronic, oral or written) regarding the subject matter, and cannot be amended or modified except by our express and explicit agreement to modify this Agreement in writing, or by us making such amendments or modifications available to you pursuant to a modification of this Agreement as permitted herein. In the event of a conflict between the provisions of the Terms and the provisions of any other document or agreement incorporated or referenced herein, these Terms will govern to the extent of the inconsistency. We reserve the right to unilaterally update or modify (collectively “change”) this Agreement at any time and from time to time. We will notify you of any changes to this Agreement by posting notice of such changes on the Site. You agree that we have this right, and that your continued use of the Site and the Marketplace following notice of such change means that you agree to and accept the amendments.

Questions about the Site or the Marketplace, or regarding your rights and responsibilities under this Agreement, can be directed privacy@well.company.

Last modified:  September 24, 2020