Wellby User Agreement

This Wellby User Agreement (the “Agreement”) is a legal agreement between you (including your heirs, assigns, and successors) (collectively, “you,” “your”) and Wellby, Inc. and its affiliates (collectively, “Wellby,” “we,” “our,” or “us”) governing your use of Wellby’s consumer web-based application and/or mobile applications (collectively, the “Wellby Service”). Please read this Agreement carefully. By completing the registration process, clicking on the “I Accept” button, and/or downloading, and/or using the Wellby Service, you represent that (1) you have read, understand, and agree to be bound by this Agreement, (2) you are of legal age to form a binding contract with Wellby, and (3) you have the authority to enter into this Agreement personally or on behalf of the company you have named as the user, and to bind that company to the Agreement. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, OR IF YOU LACK THE CAPACITY OR AUTHORITY TO AGREE TO THESE TERMS AND CONDITIONS, YOU MAY NOT ACCESS OR USE THE WELLBY SERVICE.

1. Use of the Wellby Service

Through the Wellby Service, Wellby allows you to search, schedule, and pay for wellness services. The information and content provided via the Wellby Service is for general educational and informational purposes only. Wellby does not provide medical or wellness services, and the Wellby Service is not a substitute for professional medical advice, diagnosis, or treatment. Wellness service providers are independent contractors, and Wellby is not responsible for the type or quality of services rendered by the wellness service providers. You are responsible for your own health and safety at all times. For any medical needs, seek medical attention from your regular provider. If you think you have a medical emergency, call your doctor or emergency services immediately. Do not rely on electronic communications or communication through the Wellby Service for any medical needs including immediate, urgent medical needs.

We grant you permission to use the Wellby Service subject to the restrictions in this Agreement. In using the Wellby Service, you may be exposed to content that is offensive, indecent, untruthful, inaccurate, objectionable, defamatory or otherwise inappropriate. Wellby Service does not endorse such content and, as part and parcel of this Agreement, specifically precludes all users from submitting or posting such to the Wellby Service.

Use of the Wellby Service is available on mobile devices. Do not use the Wellby Service in a way that distracts you and prevents you from obeying traffic or safety laws.

2. Conditions of Use and User Conduct

As a condition of use, you agree to the following:

  • You must not use the Wellby Service to threaten, stalk, defraud, harass, impersonate, or intimidate any person or business.
  • You must not use the Wellby Service to post fraudulent, inaccurate, or misleading ratings or reviews of any person or business.
  • You must not upload, post, email, transmit, or otherwise make available any unsolicited or unauthorized advertising, promotional materials, surveys, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” “affiliate links,” or any other form of solicitation.
  • You must not transmit any bugs or viruses or any code of a destructive nature.
  • You must not use the Wellby Service in a manner that may create a conflict of interest, such as trading reviews with other business owners, compensating someone or being compensated to write or remove a review, or by writing a fake or defamatory review.
  • You must comply with all applicable laws in your jurisdiction (including but not limited to intellectual property laws).
  • You must not use the Wellby Service for any illegal or unauthorized purpose. You agree to comply with all local laws regarding online conduct and acceptable content.
  • You acknowledge that your use of the Wellby Service may involve the transmission of private information, including potentially personal health information, via unsecure means such as email.
  • You are responsible for the strength and confidentiality of your password.
  • You acknowledge that any and all of your User Content must comply with Section 3 of this Agreement.
  • You acknowledge that Wellby will not be liable to you for compensation, reimbursement, or damages in connection with your use of the Wellby Service.

We are under no obligation to enforce the Agreement on your behalf against another user. While we encourage you to let us know if you believe another user has violated the user Agreement, we reserve the right to investigate and take appropriate action at our sole discretion.

3. User Generated Content

The Wellby Service allows you to author, upload, transmit, publish, disseminate, and/or otherwise make available content in the form of user-generated media, such as videos, images, commentary, and business reviews, and user-identifying information, such as a user’s name and email address (collectively, “User Content”). You alone are responsible for your User Content. You assume all risks associated with your User Content, including, but not limited to, anyone’s reliance on its accuracy, quality, reliability, completeness or usefulness, or any disclosure by you of information in your User Content that makes you personally identifiable. You agree not to upload to the Wellby Service or otherwise post, transmit, distribute, or disseminate through the Wellby Service any content that: (a) is false, misleading, unlawful, obscene, indecent, lewd, pornographic, defamatory, libelous, threatening, harassing, hateful, abusive, or inflammatory; (b) encourages conduct that would be considered a criminal offense or gives rise to civil liability; (c) breaches any duty toward or rights of any person or entity, including rights of publicity or privacy; (d) contains corrupted data or any other harmful, disruptive, or destructive files; (e) advertises products or services competitive with Wellby’s or its partners’ products and services, as determined by Wellby in its sole discretion; or (f) in Wellby’s sole judgment, is objectionable, restricts, or inhibits any person or entity from using or enjoying any portion of the Wellby Service, or which may expose Wellby, its affiliates, or users to harm or liability of any nature. You may not imply that your User Content is in any way sponsored or endorsed by Wellby.

When you make User Content available on or through the Wellby Service, you represent and warrant that – with respect to all User Content that you upload, transmit, publish, disseminate, and/or otherwise make available through the Wellby Service – (a) you have all the rights and licenses necessary to use, reproduce, publish, display publicly, perform publicly (including by means of digital audio transmission), distribute, and/or otherwise exploit such User Content in connection with the Wellby Service (and to grant to Wellby the licenses set forth in this Agreement), and (b) the User Content will not infringe or otherwise violate the rights of any third party including, but not limited to, the copyright, trademark, privacy, and/or publicity rights of any third party.

By submitting User Content as set forth above, you hereby do and shall assign to Wellby (and its successors, assigns, partners, affiliates, and third party service providers) all rights to use, reproduce, modify, create derivative works from, distribute, publicly display, publicly perform (including by means of digital audio transmission), derive revenue or other remuneration from, and otherwise exploit the User Content for any purpose and in any medium, by any means currently existing or yet to be devised. You also hereby do and shall grant to each user of the Wellby Service a non-exclusive license to access and view the User Content through the Wellby Service as permitted through the functionality of the Wellby Service.

By using the Wellby Service, you acknowledge and agree that Wellby publishes User Content at its sole discretion, and that Wellby does not guarantee access to or hosting of User Content that is shared via the Wellby Service. For example, if User Content violates this Agreement, access to it may be disabled. Also, if a particular piece of content creates too large a demand on the Wellby Service, it may result in access to the content being temporarily or permanently disabled.

Wellby has no obligation to retain or provide you with copies of your User Content, nor does Wellby make any guarantees or representations concerning any confidentiality with respect to your User Content. Wellby and its licensees or affiliates may display advertisements and other information adjacent to or included with your User Content. You are not entitled to any compensation for such advertisements. The manner, mode, and extent of such advertising are subject to change without specific notice to you.

4. Your Privacy

Audio Transmission: You understand and agree that, to the extent permitted by law, Wellby may, without further notice or warning and in its sole discretion, monitor and/or record audio transmissions, including telephone conversations and Voice over Internet Protocol conversations, you or anyone acting on your behalf has with Wellby or while otherwise involving the Wellby Service. You acknowledge and understand that, while your audio transmissions may be overheard, monitored, and/or recorded by Wellby, not all audio transmissions may be recorded by Wellby, and Wellby does not guarantee that recordings of any particular audio transmission will be retained or retrievable.

Video Transmissions: You understand and agree that, to the extent permitted by law, Wellby may, without further notice or warning and in its sole discretion, monitor and/or record video transmissions sent or received by you or anyone acting on your behalf to Wellby or otherwise involving the Wellby Service. You acknowledge and understand that, while the video transmissions may be overheard, monitored, and/or recorded by Wellby, not all video transmissions may be recorded by Wellby, and Wellby does not guarantee that recordings of any particular video transmissions will be retained or retrievable.

Text-Based Transmissions: You understand and agree that, to the extent permitted by law, Wellby may, without further notice or warning and in its sole discretion, monitor and/or save text-based transmissions, including email messages, chat messages, and forum messages, sent or received by you or anyone acting on your behalf to Wellby or otherwise involving the Wellby Service. You acknowledge and understand that, while the text-based transmissions may be monitored and/or saved by Wellby, not all text-based transmissions may be saved by Wellby, and Wellby does not guarantee that any particular text-based transmissions will be retained or retrievable.

Your Personal Information: Our Privacy Policy governs how we collect and use personal information that is submitted through the Wellby Service. Upon agreeing to be bound by this Agreement you confirm that you have read, understood and accepted Wellby’s Privacy Policy located at https://wellby.net/privacypolicy.

5. Appointment Policy

As part of the Wellby Service, Wellby permits you to schedule appointments with certain third-party individuals and businesses (“Service Providers”) that provide services. In the event that you elect to schedule an appointment with a Service Provider via the Wellby Service, you agree that you will adhere to the Service Provider’s stated appointment policy. In the event that you do not intend to or are unable to make the appointment after scheduling such, you agree to cancel such appointment in accordance with the Service Provider’s stated cancelation policy. If no cancelation policy is stated by the Service Provider, you agree to cancel such appointment not less than twenty-four (24) hours in advance of the scheduled appointment time. You further agree to adhere to the Service Provider’s stated terms and conditions, and agree that you are subject to any cancelation fees or other cancelation effects provided by the Service Provider’s terms and conditions. You acknowledge and agree that Wellby may suspend or terminate your account in the event that you fail to appear at any scheduled appointment. You further agree that you will not make any appointments at which you do not intend to appear and you agree further to refrain from any and all conduct which may be adverse to the interest of each of the businesses featured on the Wellby Service. You agree to defend, indemnify and hold harmless Wellby and any and its associated parties from and against any and all conduct which may be adverse to any of the businesses soliciting appointments through the Wellby Service.

6. Wellby Intellectual Property

All text, graphics, user interfaces, visual interfaces, photographs, trademarks, logos, sounds, music, artwork, content, and computer code (collectively, “Wellby Content”), including but not limited to the design, structure, selection, coordination, expression, “look and feel,” and arrangement of such Wellby Content, contained on the Wellby Service is owned, controlled, or licensed by or to Wellby, and is protected by trade dress, copyright, and trademark laws, and various other intellectual property rights. Except as expressly provided in this Agreement or otherwise permitted by law, no Wellby Content may be used, copied, reproduced, modified, republished, uploaded, posted, publicly displayed, publicly performed (including by means of a digital audio transmission), encoded, translated, transmitted, or distributed in any way to any other person, computer, server, website, or any other medium for any purpose, without regard to whether that purpose is commercial or noncommercial in nature, without Wellby’s express prior written consent.

7. Third-Party Services and Links

Through the Wellby Service, you may be offered and/or given access to services, products and promotions provided by third parties and not by Wellby (“Third Party Services”). If you decide to access or use these Third Party Services, you will be responsible for reviewing and understanding the terms and conditions associated with these Third Party Services. You agree that Wellby is not responsible for the performance of these Third Party Services or the acts or omissions of the entities that provide them. The Wellby Service may contain links to third-party websites as a convenience to you. The inclusion of any website link does not imply an approval, endorsement, or recommendation by Wellby. The inclusion of any Wellby name, logo, or similar mark on or associated with Third Party Services does not imply an approval, endorsement, or recommendation by Wellby. You agree that you access any such website at your own risk, and that the site is not governed by the terms and conditions contained in this Agreement.

Wellby expressly disclaims any liability for these websites and the acts and omissions of the entities that provide them. Please remember that when you use a link to go from our website to another website, our Privacy Policy is no longer in effect. Your browsing and interaction on any other website, including those that have a link in the Wellby Service, is subject to that digital property’s own rules and policies.

8. Suspension and Termination

You may terminate this Agreement at any time by closing your account and discontinuing your use of any and all parts of the Wellby Service.

Wellby may suspend or terminate your account or ability to use the Wellby Service, in whole or in part, at Wellby’s sole discretion, for any or no reason, and without notice or liability of any kind. For example, Wellby may terminate or suspend your account or ability to use the Wellby Service if you (a) have violated the terms of this Agreement or any other agreement you have with Wellby or Wellby’s policies, (b) pose an unacceptable credit or fraud risk to Wellby, and/or (c) provide any false, incomplete, inaccurate, or misleading information or otherwise engage in fraudulent or illegal conduct via the Wellby Service. Any such termination or suspension could prevent you from accessing your account, the Wellby Service, your User Content, or any other related information.

In the event of any termination, you agree: (a) to continue to be bound by this Agreement, (b) to immediately stop using the Wellby Service, (c) that the license provided to you under this Agreement shall end, (d) that Wellby reserves the right (but have no obligation) to delete all of your information and account data stored on our servers, (e) that Wellby may continue to use and display your User Content, and (f) that Wellby shall not be liable to you or any third party for termination of access to the Wellby Service, or for deletion of your information or account data.

Wellby will not be liable to you for compensation, reimbursement, or damages in connection with your use of the Wellby Service, or in connection with any termination or suspension of the Wellby Service. Any termination of this Agreement does not relieve you of any obligations to pay any fees or costs accrued prior to the termination and any other amounts owed by you as provided in this Agreement.

9. Anti-Spam Policy

United States: Wellby is committed to compliance with the Controlling the Assault of Non-Solicited Pornography And Marketing (CAN-SPAM) Act and its relevant rules and regulations. You may not use any of our services or network to send unsolicited bulk or unsolicited commercial email. In addition, e-mail sent, or caused to be sent, to or through our network or services may not:

  1. Use or contain invalid or forged headers;
  2. Use or contain invalid or non-existent domain names;
  3. Employ any technique to otherwise misrepresent, hide or obscure any information in identifying the point of origin or the transmission path;
  4. Use other means of deceptive addressing;
  5. Use a third party's Internet domain name, or be relayed from or through a third party’s equipment, without permission of the third party;
  6. Contain false or misleading information in the subject line or otherwise contain false or misleading content
  7. Otherwise violate Wellby’s User Agreement;
  8. Fail to comply with the U.S. CAN-SPAM Act of 2003; or
  9. Fail to comply with any applicable state, federal, or international laws.

Canada: Wellby is committed to compliance with Canada’s Anti-Spam Legislation (“CASL”) and its relevant rules and regulations. CASL regulates each commercial electronic message (a “CEM”), which is an electronic message sent to an electronic address that, among its purposes, encourages participation in a commercial activity. All CEMs originating from Wellby computers or devices will: (a) only be sent after receiving your consent; (b) identify on whose behalf the message is being sent (i.e. Wellby or Wellby on behalf of a third party); and (c) and shall contain an unsubscribe mechanism. Express consent will be required prior to all electronic communication unless implied consent is obtained due to a pre-existing relationship. Furthermore, Wellby will not install any computer programs without your consent.

10. Indemnification

You agree to release, indemnify, defend, and hold harmless Wellby and its members, managers, subsidiaries, affiliates, any related companies, suppliers, licensors and partners, and their respective employees, officers, agents, directors, representatives, contractors, licensors, suppliers, and service providers from and against any and all third-party claims asserted against and of them, and all related costs, liabilities, legal fees, losses, damages, judgments, tax assessments, penalties, interest, and expenses (including without limitation reasonable attorneys’ fees) from any claim or demand made by any third party arising out of or relating to: (a) your access to or use of the Wellby Service; (b) any actual or alleged breach by you of this Agreement; or (c) any actual or alleged violation by you, or any third party using your account, of the intellectual property, privacy, or other third party rights.

Wellby reserves the right, at your expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Wellby in asserting any available defense. You agree not to settle any matter without the prior written consent of Wellby. Wellby will use reasonable efforts to notify you of any such claim, action, or proceeding upon becoming aware of it.

11. Representation and Warranties

You represent and warrant to us that: (a) you are at least eighteen (18) years of age or are above the age of consent in your geographic jurisdiction where you operate; (b) you are eligible to register and use the Wellby Service and have the right, power, and ability to enter into and perform under this Agreement on behalf of yourself or your business; (c) the name identified by you when you registered is your name or business name; (d) you and all transactions initiated by you will comply with all federal, state/provincial, and local laws, rules, and regulations applicable to you and/or your business, including any applicable tax laws and regulations; (e) you will not use the Wellby Service, directly or indirectly, for any fraudulent undertaking or in any manner so as to interfere with the operation of the Wellby Service; and (f) your use of the Wellby Service will be in compliance with this Agreement.

12. Disclaimer of Warranties and Conditions

YOU EXPRESSLY UNDERSTAND AND AGREE THAT THE WELLBY SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND YOUR USE OF THE WELLBY SERVICE IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE WELLBY SERVICE IS PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM WELLBY OR THROUGH THE WELLBY SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. WITHOUT LIMITING THE FOREGOING, WELLBY, ITS PROCESSORS, ITS PROVIDERS, ITS LICENSORS (AND THEIR RESPECTIVE SUBSIDIARIES, AFFILIATES, AGENTS, DIRECTORS, AND EMPLOYEES) DO NOT WARRANT THAT ANY CONTENT OR INFORMATION PROVIDED THROUGH THE WELLBY SERVICE, INCLUDING, WITHOUT LIMITATION, ANY BUSINESS LISTINGS, OR RATINGS, REVIEWS, OR METRICS FOUND ON, USED ON, OR MADE AVAILABLE THROUGH THE WELLBY SERVICE, IS ACCURATE, RELIABLE, OR CORRECT; THAT THE WELLBY SERVICE WILL MEET YOUR REQUIREMENTS; THAT THE WELLBY SERVICE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE WELLBY SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU ACKNOWLEDGE AND AGREE THAT WELLBY IS NOT LIABLE TO YOU FOR ANY LOSS OR DAMAGE THAT MIGHT ARISE, FOR EXAMPLE, FROM THE WELLBY SERVICE’S INOPERABILITY, UNAVAILABILITY OR SECURITY VULNERABILITIES, OR FROM YOUR RELIANCE ON THE QUALITY, ACCURACY, OR RELIABILITY OF ANY CONTENT DOWNLOADED OR OTHERWISE MADE AVAILABLE THROUGH USE OF THE WELLBY SERVICE, INCLUDING, WITHOUT LIMITATION, ANY BUSINESS LISTINGS, RATINGS, REVIEWS OR METRICS FOUND ON, USED ON, OR MADE AVAILABLE THROUGH THE WELLBY SERVICE. YOUR SOLE AND EXCLUSIVE RIGHT AND REMEDY IN CASE OF DISSATISFACTION WITH THE WELLBY SERVICE, OR THE CONTENT OR SERVICES MADE AVAILABLE THROUGH THE WELLBY SERVICE SHALL BE YOUR TERMINATION AND DISCONTINUATION OF ACCESS TO, OR USE OF THE WELLBY SERVICE.

WELLBY DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE WELLBY SERVICE OR ANY HYPERLINKED WEBSITE OR SERVICE, OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND WELLBY WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.

13. Limitation of Liability and Damages

YOU UNDERSTAND AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL WELLBY, ITS PROCESSORS, ITS SUPPLIERS, OR ITS LICENSORS (OR THEIR RESPECTIVE AFFILIATES, AGENTS, DIRECTORS, AND EMPLOYEES) BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, INABILITY TO USE, OR UNAVAILABILITY OF THE WELLBY SERVICE. UNDER NO CIRCUMSTANCES WILL WELLBY BE RESPONSIBLE FOR ANY DAMAGE, LOSS, OR INJURY RESULTING FROM AUTHORIZED OR UNAUTHORIZED ACCESS OR USE OF THE WELLBY SERVICE, YOUR WELLBY SERVICE ACCOUNT, OR THE INFORMATION CONTAINED THEREIN, INCLUDING ANY HACKING, TAMPERING, OR OTHER UNAUTHORIZED ACCESS OR USE OF THE WELLBY SERVICE, YOUR WELLBY SERVICE ACCOUNT, OR THE INFORMATION CONTAINED THEREIN.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WELLBY, ITS PROCESSORS, ITS SUPPLIERS, AND ITS LICENSORS (AND THEIR RESPECTIVE AFFILIATES, AGENTS, DIRECTORS, AND EMPLOYEES) ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF THE WELLBY SERVICE; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE WELLBY SERVICE; (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH THE WELLBY SERVICE BY ANY THIRD PARTY; (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE WELLBY SERVICE; AND/OR (VII) USER CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY. IN NO EVENT SHALL WELLBY, ITS PROCESSORS, AGENTS, SUPPLIERS, OR LICENSORS (OR THEIR RESPECTIVE AFFILIATES, AGENTS, DIRECTORS, AND EMPLOYEES) BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING $25.

THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF WELLBY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.

14. Dispute Resolution

In the event of any controversy or dispute between Wellby and you arising out of or relating to Wellby, the Wellby Service, or this Agreement, the Parties agree first to try in good faith to settle the dispute by mediation administered by the Canadian Arbitration Association before resorting to arbitration, litigation, or some other dispute resolution procedure.

If mediation fails to settle the dispute, you and Wellby agree the dispute shall be finally settled by arbitration administered by the Canadian Arbitration Association, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.

YOU HEREBY KNOWINGLY AND VOLUNTARILY AND IRREVOCABLY WAIVE YOUR RIGHT TO A TRIAL BY JURY and agree that if the foregoing binding arbitration provision is determined for any reason to be unenforceable or inapplicable to a particular dispute, then such dispute shall be decided solely by a judge, without the use of a jury, sitting in a court of competent jurisdiction.

In any action to enforce any right or remedy under this Agreement or to interpret any provision of this Agreement, the prevailing party shall be entitled to recover its costs, including reasonable attorneys’ fees.

15. Exclusive Venue

To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Wellby agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the provincial or federal courts located in Ontario, Canada.

16. Governing Law

This Agreement shall be governed by the laws of the Province of Ontario and the laws of Canada applicable therein. The courts of the Province of Ontario shall have jurisdiction to entertain any action arising under this Agreement and the parties hereby accept and irrevocably submit to the jurisdiction of the said courts and acknowledge their competence and agree to be bound by any judgment thereof.

17. Limitation on Time to Initiate a Dispute

Unless otherwise required by law, an action or proceeding by you relating to any dispute must commence within one (1) year after the cause of action accrues, or such claim or cause of action is forever barred.

18. Right to Amend

Wellby may, in our sole discretion, change or add to the terms of this Agreement at any time, and change, delete, discontinue, or impose conditions on any feature or aspect of the Wellby Service. Any use of the Wellby Service after publication of any such changes shall constitute your acceptance of this Agreement as modified. If you do not agree to any changes, you must stop using the Wellby Service, and you can terminate your Wellby Service account. It is your obligation to ensure that you read, understand, and agree to the latest version of this Agreement.

19. Force Majeure

In the event Wellby is unable to perform its obligations or current modifications of obligations under the terms of this Agreement because of war, terrorism, earthquake, hurricane, plague, epidemic, pandemic, acts of government, acts of God, National Emergency, or other causes reasonably beyond its control, Wellby shall not be liable for damages to the other for any such failure to perform or otherwise from such causes.

20. Assignment

This Agreement, and any rights and licenses granted hereunder, may not be transferred, delegated, or assigned by you, but may be assigned, transferred or delegated by Wellby without restriction. This Agreement is binding on the parties and their successors and permitted assigns.

21. Severability of Terms

If any portion of this Agreement is held to be invalid or unenforceable, such provision shall be stricken and the remainder of the Agreement enforced as written. If Wellby does not exercise or enforce any legal right or remedy including those contained in the Agreement or arising under applicable law, this will not be taken to be a formal waiver of our rights.

22. Entire Agreement

This Agreement is the whole legal agreement between you and Wellby. It governs your use of the Wellby Service and completely replaces any prior agreements between you and Wellby with respect to the Wellby Service.