B.WELL TERMS OF SERVICE
Published Date: January 1, 2021
Effective Date: January 31, 2021 Short on time? Read these takeaways
IF YOU LIVE IN THE UNITED STATES, PLEASE READ THE BINDING ARBITRATION CLAUSE AND CLASS ACTION WAIVER IN SECTION 13. IT AFFECTS HOW DISPUTES ARE RESOLVED.
To help you understand the Terms better, we’ve broken them down into Sections, each with its own title and easy-to-read takeaways. Please take care not to rely on the headings and takeaways alone. They are intended for reference and convenience purposes only. They are not considered in how the Terms are to be interpreted.
These terms (“Terms”) cover your use of the b.well mobile or web application (“b.well application” or the “application”), and related consumer products, websites, and services (collectively with b.well, the “Services”) from b.well Connected Health, Inc. or any of its affiliated entities (“b.well”, “we”, “us”, or “our”). You accept these Terms by creating a b.well account and each time you use the Services. If we update the Terms, you will be provided with a summary of changes and a request to accept the updated Terms. If you do not accept the Terms, you cannot use the b.well application and may not be able to access all of the services covered by the Terms. These Terms survive any termination of your access to any one or more of the Services.
1. YOUR PRIVACY
a) From you,
b) From others on your behalf, or
c) From the services, applications and devices that you link to your b.well account.
Finally, it describes data which comes from Personal Data but does not include identifiers that could be reasonably linked back to you (“Non-Personal Data”).
2. DATA AND SERVICE CONNECTIONS
Takeaway: b.well helps you make secure data connections to collect your Health Data from multiple sources. We also help you make secure service connections with authorized partners. You may be asked to accept “service-specific terms” before connecting with these partners. It’s important to understand these additional terms before accessing and using these other services.
Services covered by these Terms include the services and secure system connections that streamline your access to Health Data from multiple sources, and to aggregate your Health Data. More information about data connections is described under Connected Health Apps and Devices and Medical Record Connections.
Services also include connections to suppliers of digitally enabled services that b.well offers through the b.well application (each, an “authorized partner”). When you first connect to these additional services, you may be asked to read, acknowledge or consent to additional disclosures or service terms (“service-specific terms”). All service-specific terms require authorized partners to:
● adhere to their own terms of service and privacy policies,
● notify b.well and you in advance of any changes, and
● provide you with minimum rights concerning your Personal Data.
You accept service-specific terms by accessing the services to which they apply, and by continuing to use an authorized partner’s service after being notified of changes to its applicable service-specific terms. If you do not accept the service-specific terms, please do not use the related services through b.well.
b.well or its licensors may, from time to time, remove services of authorized partners from the Services without notice. In all circumstances, you understand and acknowledge that your rights with respect to services from authorized partners are limited by these Terms, and by the intellectual property rights reserved by them.
3. DIGITAL GOODS
Takeaway: We offer digital text, video, images, and more to deliver an immersive user experience. This content is for your personal use only. You agree not to use it for any other purpose. When this content comes from a third party, you may be asked to agree to additional terms.
b.well may enable you to obtain, listen to, view, play or read (as the case may be) text, audio, images, video, games or other material in digital form, including derivative works thereof (“Digital Goods”). You may also receive Services that are enhanced by b.well’s use of Digital Goods.
Digital Goods are only for your personal, noncommercial use. You agree not to redistribute, broadcast, publicly perform or publicly display or transfer any copies of Digital Goods. You agree that you will not attempt to modify any Digital Goods obtained through any of the Services for any reason whatsoever, including for the purpose of disguising or changing ownership or the source of the Digital Goods.
Digital Goods are licensed, not sold by b.well or its third party licensors, which reserve all intellectual property rights, including marks and copyright in the Digital Goods that they license or sublicense under these Terms. b.well or its licensors may, from time to time, remove Digital Goods from the Services without notice. In all circumstances, you understand and acknowledge that your rights with respect to Digital Goods are limited by these Terms, trademark, patent, trade secret and copyright law, and other applicable service-specific terms located under Service-Specific Terms.
4. CONNECTED HEALTH APPS AND DEVICES
Takeaway: You can connect other health-related consumer apps to your b.well account. This lets you share data between b.well and these apps. If the app is from an authorized b.well partner, these developers agree to safeguard your data to b.well’s standards. For all other app developers, b.well isn’t liable for their privacy and security practices, which may not meet b.well’s standards.
b.well allows you to connect your b.well account with accounts that you have created in consumer health, wellness and fitness apps (“consumer apps”) available to you through third party mobile app distribution platforms (like the Apple App Store or Google Play Store). These connections may allow you to share Health Data between your b.well account and the accounts you have created in your consumer apps.
Takeaway: The app offers challenges that may let you earn points. These points may be redeemable for rewards.
b.well challenges are an optional feature in the Service that may let you earn points for completing specific tasks and challenges. The points you earn may or may not be redeemable for monetary rewards, as permitted by the entity that sponsors your b.well account. Points are not offered for every task, and cannot be transferred to others. For more information, see the Challenges, Points & Rewards section in the application’s Knowledge Center, under FAQs.
6. SERVICE-SPECIFIC TERMS
Takeaway: Certain services and digital offerings have their own terms of service that are important to understand. We collect them, or link to them, from this heading of the Terms.
This Section contains service-specific terms for certain services or Digital Goods available through your b.well account that are in addition to the general terms. These service-specific terms govern if they conflict with the general terms.
Lab Tests Online. Descriptions of clinical laboratory tests were originally prepared for use on Lab Tests Online, an award-winning patient education website on clinical laboratory testing. Lab Tests Online is produced by the American Association for Clinical Chemistry (AACC), a global scientific and medical professional organization dedicated to clinical laboratory science and its application to healthcare. The Lab Tests Online web site (https://labtestsonline.org) is developed in collaboration with other laboratory professional societies and is funded in part through corporate sponsorships.
CPT Codes. Your Health Data and some Digital Goods may use or contain content from the American Medical Association (AMA)’s Current Procedural Terminology (CPT®) Data File, which means content from the print publication Current Procedural Terminology, Fourth Edition, and CPT Standard data file published by the AMA. The CPT Data File (“CPT Content”) is copyrighted by the American Medical Association (CPT© 2019 and all future years. All rights reserved), and CPT is a registered trademark of the AMA. You are authorized to use the CPT Content in the Services for your personal, noncommercial use, “as is” and at your sole risk without any warranties, expressed or implied. You expressly acknowledge and agree to the extent permitted by applicable law that AMA does not directly or indirectly practice medicine or dispense medical services. You further acknowledge that your right to continued access to the CPT Content is conditioned upon a continuing contractual relationship between AMA and b.well. Your right to access CPT Content may terminate unless prior written consent is obtained from AMA, or a separate licensing arrangement is made with AMA by which your end user license is granted.
Healthwise. The Services may use or contain Digital Goods that are copyrighted by Healthwise, Incorporated or licensed by Healthwise and sublicensed to b.well. b.well is authorized to grant you a limited, non-exclusive, non-transferable, non-sublicensable license to use the licensed and sublicensed Healthwise content in the Services for your personal, noncommercial use, “as is” without any warranties, expressed or implied. The Healthwise content offers general information and not specific medical advice. You agree that your access and use of Healthwise content is at your own risk. You should contact your physician for medical advice specific to your cases.
KidsHealth Licensed Content. The KidsHealth content licensed hereunder is licensed from the Nemours Foundation “as is” without any warranties, express or implied. KidsHealth content offers general information and not specific medical advice. You agree that your access and use of KidsHealth content is at your own risk. You should contact your physician for medical advice specific to your cases.
The Nemours Foundation retains all rights in and to KidsHealth content, including, without limitation, all copyright and other intellectual property rights in and to KidsHealth content. By accepting the Terms, you acknowledge The Nemours Foundation’s rights in KidsHealth content, and agree not to construe the Terms to grant you any right, title or interest in or to any derivative work that includes any portion of KidsHealth content.
7. USING THE SERVICES; SUPPORT
About your responsibilities:
● You agree not to use any false, inaccurate or misleading information when you use our services, and to keep your information up-to-date.
● Please keep your login credentials private. You are responsible for all activity that occurs under your account. If you become aware of any suspicious conduct, please contact us.
● Children under age 13 years old may not create a b.well account without the clear and verifiable consent of their parent or legal guardian.
● b.well may allow parents or other personal representatives or legal guardians to create a “proxy” account for their minor children (or others) under their own account, as permitted by applicable state laws and the organization that sponsors your access to b.well.
Managing your Health Data in the app
● If you receive your b.well account through your employer, we do not share your Health Data with them.
● If you decide to share Health Data in your account with others, be sure to do so only with people you trust, because you are responsible for what you decide to share.
● We also help you establish read-only recurring medical record connections, consistent with your right of access to your medical record information under HIPAA. These data connections are provided as-is, without warranty, and may be delayed. If any data is wrong, you may need to contact the source to request corrections.
● You can close your account and securely download your Health Data at any time.
● We reserve the right to terminate services or suspend your account. User support is available through Knowledge Center in the application. For live support, contact us within the application, by calling us toll-free at (855) 972-9355 or by emailing us at firstname.lastname@example.org.
A. b.well Account. You’ll need a b.well account to access many of the Services.
i) Creating an Account. You can create a b.well account by signing up online. You agree not to use any false, inaccurate or misleading information when signing up for your b.well account.
ii) Account Credentials. To protect your account, keep your account details and password confidential. You are responsible for all activity that occurs under your b.well account.
iii) Identity Authentication. For your protection, you must provide b.well with current, complete, and accurate information about yourself as prompted by our registration processes. You must also regularly update this information to maintain its completeness and accuracy.
iv) Employees and Dependents. If you are an employee or dependent that receives health benefits from a plan that your Enterprise Sponsor administers, your b.well account may be pre-populated with Health Data from a third party plan administrator. Among other things, the role of a third party plan administrator is to maintain technical, physical and administrative measures to safeguard that your Health Data is not disclosed or used by the Enterprise Sponsor in medical underwriting, employment-related decisions or other actions regulated by applicable employment laws and regulations (“restricted purposes”). If you consent to the sharing of your Health Data with the Enterprise Sponsor, b.well does not knowingly perform services or help your Enterprise Sponsor use your PHI for restricted purposes. We also implement reasonable technical, physician, and administrative measures to safeguard against access and use of your Health Data for these restricted purposes.
v) Kids and Accounts. By creating a b.well account or using the Services, you accept and agree to be bound by these Terms, and represent that you have either reached the age of “majority” where you live or your parent or legal guardian agrees to be bound by these Terms on your behalf. If you do not know whether you have reached the age of majority where you live, or do not understand this section, please ask your parent or legal guardian for help. If you are the parent or legal guardian of a minor, you and the minor accept and agree to be bound by these Terms and are responsible for all use of the b.well account or Services, whether the minor’s account is now open or created later.
vi) Personal Representatives, Legal Guardians and “Proxy” Account Access. b.well may allow users that are recognized as another user’s “personal representative’ or “legal guardian” under applicable state law to create and manage the other user’s account. This form of account access is known as “proxy” account access. A user with proxy account access can view and edit account settings, including data sharing permissions. By way of example, proxy account privileges may be granted to the parents of children under the age of majority in the state where they live, or to the holder of a medical power of attorney for another user. Proxy account privileges may not be an available option for all b.well users, and are subject to the data practices of the Enterprise Sponsor for your account. b.well reserves the right to deny or suspend “proxy” privileges at any time in its sole discretion.
vii) Health Circle. b.well gives you the ability to share Health Data with other b.well accountholders that you identify in your circle of support (your “Health Circle”). b.well also allows other b.well users to bring you into their Health Circle. You should only add b.well users that you trust to your Health Circle. b.well lets you decide which pieces of Health Data to share with individual members of your Health Circle. In making this selection, be mindful that some of your Health Data can contain genetic or family history information that concerns other individuals. You should always take care to protect the privacy of individuals whose Health Data you can access and share. You accept all responsibility for the actions you take when sharing Health Data through the Health Circle feature of the application. Conversely, you accept full responsibility for the subsequent use and redisclosure of your Health Data by other b.well users after you’ve added them to your Health Circle. You can remove other b.well users from your Health Circle at any time, but we disclaim responsibility for re-use or re-disclosure of Health Data that they accessed while they are in your Health Circle.
viii) Medical Record Connections. As part of the Service, we streamline access to your Health Data from your Enterprise Sponsor. We can also help you establish recurring medical record connections that help you build a complete personal health record in your b.well account, consistent with your HIPAA right of access to your medical record information. Through the Medical Records Connection feature of the b.well application, you can request access to your health data from (A) your other health care providers or health plans, and (B) third-party sites, including BlueButton API 2.0 from the U.S. Centers for Medicare and Medicaid Services and the VA Lighthouse API from the U.S. Department of Veterans Affairs (collectively, “data holders”). When requesting access, you represent and warrant that you have the necessary rights, title and interest in and to the account credentials requested to establish the medical records connection and to access the Health Data received from data holders. You acknowledge there may be delays in record request processing from health providers and health plans. Despite our reasonable efforts, we may not be able to obtain some or all of your Health Data and we do not guarantee or assume any responsibility or liability for the completeness, timeliness, accuracy, deletion or non-delivery of any Health Data. We are not responsible for the way in which this Health Data is displayed in your b.well account, as this may be impacted by the nature and form of the Health Data that we receive from data holders. Health Data that comes from data holders accessed through your HIPAA “right of access” will be “read only” and cannot be altered. If you believe any Health Data coming from the records of data holders is inaccurate, it is your responsibility to address this issue with the relevant health care provider(s) or health plan(s). Disclaimers. b.well’s data connections using Blue Button 2.0 APIs or the VA Lighthouse API are not endorsed or certified by the Centers for Medicare & Medicaid Services, the U.S. Department of Health and Human Services or the U.S. Department of Veterans Affairs, as applicable.
ix) Account Use. You agree to use b.well to access only those accounts on which you are authorized to act. If you become aware of any suspicious or unauthorized conduct concerning your b.well account, user name, login, password, or security questions and answers, you agree to contact b.well support through the application. If we reasonably suspect that your b.well account is at risk of being used by a third party fraudulently (for example, as a result of an account compromise), we may suspend your account until you can reclaim ownership. Based on the nature of the compromise, we may be required to disable access to some or all of your Personal Data. If you are having trouble accessing your b.well account, please contact us through the b.well application under Support.
B. Devices, Internet Access and Data Plans. To access our Services, you will need access to the internet, an Apple iOS-compatible or Google Android-compatible mobile device (tablet or smartphone) and a b.well account. You understand that you must, at your own expense, provide all internet, telephone and other equipment and services necessary to access and use our services. We are not responsible for the fees that you incur from unrelated third parties, including internet or cellular service providers or consumer app developers that operate websites or applications that link to our Services. You agree that the phone number you provide for receiving text messages is registered in your name. You agree that b.well is not responsible for the security of transmissions of text messages to mobile phones or other devices that do not support password protection or encryption, or which you share with others. b.well will not be liable for any loss or damage arising from your failure to comply with this paragraph.
C. Service Notifications. When there’s something we need to tell you about the Services, we’ll send you Service notifications to the email address we have for you. If you indicate your preference to receive notifications by SMS text message and through in-product messages, we may also send Service notifications to you via SMS (text message) or through the application. Data or messaging rates may apply when receiving notifications via SMS.
D. Service Availability. The services, data and features offered through the Services may be unavailable from time to time, may be offered for a limited time, or may vary depending on your region or device. We strive to keep the Services up and running; however, all online services suffer occasional disruptions and outages, and b.well is not liable for any disruption or loss you may suffer as a result. In the event of an outage, we maintain system backups to protect your Health Data, but you may experience delays in your ability to access your Health Data.
E. Support. User support is available through our Knowledge Center, which can be accessed through the b.well application. You can also email us, schedule a call or conduct a live chat through the application. Otherwise, you can call us toll-free at (855) 972-9355, or email us at email@example.com.
8. CONDITIONS OF USE
Takeaway: You agree to play nice. We can remove or disable your account if you engage in activities that are harmful to b.well or others, and may cooperate with law enforcement authorities if warranted.
By agreeing to these Terms, you agree not to:
● Use the Services for anything but your personal, noncommercial use;
● Impersonate or misrepresent your authority to act on behalf of any other person or entity;
● Violate the privacy of others;
● Violate any applicable law or regulation;
● Probe, scan, or test the vulnerability of any system or network, or breach any security or authentication measures that are implemented to deliver the services;
● Access, tamper with, or use non-public areas of the services, or the computer systems, or the technical delivery systems of b.well service providers;
● Decipher, decompile, disassemble or reverse engineer any of the software used to provide b.well applications or services;
● Interfere with, or attempt to interfere with, the access of any user, host or network, including sending a virus, overloading, flooding, spamming, or mail-bombing the Services;
● Access or search the systems or services or download any intellectual property from the systems or services used to deliver the services through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than our publicly supported interfaces;
● Plant malware or use any of the services or products to distribute malware;
● Send any unsolicited communications, promotions, advertisements or spam;
● Send altered, deceptive or false source-identifying information, including “spoofing” or “phishing”;
● Post or transmit anything that is fraudulent or misleading, or that infringes on others’ rights; or
● Encourage or enable any other individual to do any of the above.
We reserve the right to monitor your use of the Services and your access to and use of Health Data associated with your account, to ensure compliance with these Terms, and applicable law or other legal requirements. We may remove or disable your b.well account or access to any of your Personal Data, at any time, without notice, and at our sole discretion, if we reasonably believe your use of the Services violates the Terms. We may investigate violations of the Terms or conduct that negatively affects the Services or any of our other products or services. We may consult and cooperate with law enforcement authorities to prosecute users who violate the law.
9. SOFTWARE LICENSES AND RESERVATION OF INTELLECTUAL PROPERTY RIGHTS
Takeaway: If you agree with these Terms, you’re allowed to use the app and its services for your own personal use. We welcome feedback that improves our services, without obligation to incorporate the feedback or compensate you for it.
A. Software License. Subject to your compliance with these Terms, we hereby grant you a personal, worldwide, royalty-free, non-assignable, non-sublicensable, non-transferrable, and non-exclusive license to use the software provided to you to access and use the Services for your personal, non-commercial use. This software license has the sole purpose of enabling you to use and enjoy the benefit of the Services, in the manner permitted or restricted by these Terms.
B. Reservation of Intellectual Property Rights. You acknowledge that the Services are licensed, not owned, and that b.well, its suppliers and its licensors, including its authorized partners and Digital Goods, reserve all right, title and interest in and to the copyrights, trademarks, patents, trade secrets and any other intellectual property rights and proprietary rights used in or accessible through the Services that have not been expressly granted. You acknowledge that b.well are protected by copyright, trademark, and other laws of the United States and other foreign countries. You agree not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights or notices incorporated in or accompanying the marks, or to create derivative works.
Without limiting the foregoing, you acknowledge and agree that the reserved intellectual property rights include the Services’ “look and feel”, meaning its structure, sequence and layout of its digital, audiovisual components as perceived by you, including, but not limited to, the color combinations, button shapes, and all other graphical and navigational elements, the design for which was dictated by artistic and aesthetic considerations and not by utilitarian or mechanical ones. You further acknowledge and agree that the reserved intellectual property rights include the work products of de-identifying, aggregating and summarizing data that derives from Personal Data, including the objects, algorithms, data models and processes used to use, maintain and display these work products.
Takeaway: We’ll make our best effort to obtain your Health Data, but there may be delays. There is no guarantee the information will be complete or error-free. Based on how we receive the data, it may not look exactly like it does when you receive it directly from the source. We are dependent on how others give us your Health Data.
No one at b.well or from your clinical team is reviewing your Health Data or expected to take action on it. If you need medical care, call 911 or your regular health care provider, or go to an emergency department near you. The app and its services are not a substitute for professional medical advice.
A. Data Disclaimers. You acknowledge there may be delays in record request processing from your health providers and health plans. Despite our reasonable efforts, we may not be able to obtain some or all of your Health Data. We do not guarantee or assume any responsibility or liability for the reliability, completeness, timeliness, accuracy, usefulness, deletion or non-delivery of your Health Data, or of any other material, content or information appearing in the Services. We are not responsible for the way in which Health Data is displayed in your b.well account, as this may be impacted by the nature and form of the Health Data that we receive from the originating sources of your Health Data. Health Data that comes from b.well’s systems or the records of other data holders accessed through your HIPAA “right of access” will be “read only” and cannot be altered. If you believe any Health Data coming from the records of data holders is inaccurate, it is your responsibility to address this issue through the processes outlined in the respective privacy practice notices of the relevant health care provider(s) or health plan(s).
B. Medical Disclaimers.
IMPORTANT. Your use of b.well does not create a patient-provider relationship with any health care professional.
Unless otherwise specified in service-specific terms, your health condition is not being monitored by b.well or any other service provider.
No representation is made that any member of your clinical team (if applicable) will access, use or take action on Health Data that is included with your b.well account.
If you have an urgent or specific health care need, call 911 or your regular health care provider, or go to an emergency department near you.
Unless otherwise specified in applicable service-specific terms, we do not recommend or endorse any specific tests, physicians, products, procedures, opinions, or other information that may be mentioned on the Services. The Services, including all of the material, content and information made available through the Services, are for informational purposes only and do not constitute professional medical advice or treatment. Always seek the advice of your physician or other qualified health provider with any questions you may have regarding your health. You should never disregard medical advice or delay seeking it because of something you read when accessing the services. The services are not a substitute for professional medical advice.
C. Warranty Disclaimers. Other than expressly stated herein or required by law, all products and services offered through b.well are provided “as is” and “as available” without any warranty whatsoever, including, without limitation, any (1) warranty of merchantability, (2) warranty of fitness for a particular purpose, or (3) warranty against infringement of intellectual property rights of a third party; whether implied by law, course of dealing, course of performance, usage of trade, or otherwise.
Without limiting the foregoing, we expressly disclaim, and you acknowledge, that the health data collected, received or maintained in your b.well account is not guaranteed to be exact, complete, accurate or free from errors. access to health data through b.well is provided for information purposes only, and should not be relied upon for decisions that could result in harm to yourself or third parties. you are solely responsible for relying upon the information you receive from our products or services.
Some jurisdictions limit or do not allow the disclaimer of implied or other warranties so the above disclaimer may not apply to you.
Takeaway: You agree not to hold b.well responsible if you violate any of these terms. You also accept responsibility if we experience losses that result from your negligence, willful misconduct, or other actions that violate these terms or applicable law.
By entering into the terms and using the Services, you agree to indemnify and hold b.well, its Enterprise Sponsors and their respective officers, employees, directors, licensors and agents (collectively, “Indemnitees”) harmless from any and all losses, damages, liability and expenses (including reasonable attorneys’ fees), rights, claims, costs, actions of any kind and injury arising out of or in connection with: (a) your violation or breach of any term of the terms or any applicable law or regulation; (b) your violation of any rights of any third party; (c) any unauthorized use of the services; (d) your content, or (e) your negligence or willful misconduct.
12. LIMITATION OF LIABILITY
Takeaway: If you violate these terms, you agree b.well is not responsible for any damages that happen to you.
In summary: You further agree that the Indemnitees will not be liable for any consequential, indirect, incidental, special, exemplary, punitive or enhanced damages, including lost profits or revenues, diminution in value arising out of, or relating to, and/or in connection with any breach of these Terms, loss of data, privacy or goodwill, service interruption, computer damage or system failure, or the cost of substitute services arising out of or in connection with these terms or from the use of or inability to use our or our licensors’ intellectual property, whether based on warranty, contract, tort (including negligence), product liability or any other legal theory, and whether or not we have informed of the possibility of such damage, even if a limited remedy set forth herein is found to have failed of its essential purpose. Some jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, so the above limitation may not apply to you.
In no event will the Indemnitees’ total liability arising out of or in connection with these terms or from the use of or inability to use the services or to access your Personal Data exceed the amounts you have paid to b.well for use of the services, or twenty dollars ($20), if you have not had any payment obligations to us or our licensors, as applicable. The limitations of damages set forth above are fundamental elements of the basis of the bargain for granting you a license to access and use the services.
The limitation of liability set forth above shall only apply to the extent permitted by applicable law.
13. DISPUTE RESOLUTION BY BINDING ARBITRATION
Takeaway: Please read this section carefully. It includes important information that limits your legal rights.
You agree that any disputes with b.well will be resolved through arbitration, not in a court. In doing so, you and b.well agree to waive the right to trial by jury, and you agree not to participate in a class action. This agreement does not prevent you from bringing an individual claim in a small claims court, or raising an issue with federal, state, or local agencies.
If you disagree with these terms for resolving disputes, you can opt out in writing within 30 days after you first accept the Terms and following the steps for Opting Out. By doing so, b.well would not be prevented from resolving disputes in court or in a jury trial.
A. Agreement to Arbitrate
This Dispute Resolution by Binding Arbitration section is referred to in these terms as the “Arbitration Agreement.” You agree that any and all disputes or claims that have arisen or may arise between you and b.well, whether arising out of or relating to the terms (including any alleged breach thereof), the services, any advertising, any aspect of the relationship or transactions between us, shall be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement, except that you may assert individual claims in small claims court, if your claims qualify. Further, this Arbitration Agreement does not preclude you from bringing issues to the attention of federal, state, or local agencies, and such agencies can, if the law allows, seek relief against us on your behalf. You agree that, by entering into the terms, you and b.well are each waiving the right to a trial by jury or to participate in a class action. Your rights will be determined by a neutral arbitrator, not a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.
B. Prohibition of Class and Representative Actions and Non-Individualized Relief
You agree that each of us may bring claims against the other only on an individual basis and not as a plaintiff or class member in any purported class or representative action or proceeding. unless both you and b.well agree otherwise, the arbitrator may not consolidate or join more than one person’s or party’s claims and may not otherwise preside over any form of a consolidated, representative, or class proceeding. also, the arbitrator may award relief (including monetary, injunctive, and declaratory relief) only in favor of the individual party seeking relief and only to the extent necessary to provide relief necessitated by that party’s individual claim(s), except that you may pursue a claim for and the arbitrator may award public injunctive relief under applicable law to the extent required for the enforceability of this provision.
C. Pre-Arbitration Dispute Resolution
You agree that in the event of any dispute between you and b.well, you will first contact the b.well support team and make a good faith sustained effort to resolve the dispute before resorting to more formal means of resolution, including without limitation, any legal or administrative proceeding. b.well is always interested in resolving disputes amicably and efficiently, and most user concerns can be resolved quickly and to the user’s satisfaction by emailing b.well support. If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“notice”). Please contact firstname.lastname@example.org for b.well’s mailing address (“notice address”). The notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If b.well and you do not resolve the claim within sixty (60) calendar days after the Notice is received, you or b.well may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by b.well or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or b.well is entitled.
D. Arbitration Procedures
After the informal dispute resolution process, any remaining dispute, controversy, or claim (collectively, “claim”) relating in any way to your use of b.well’s services and/or products, including the services, will be resolved by arbitration. You and b.well agree that any claim will be settled by final and binding arbitration, using the English language, administered by JAMS under its Comprehensive Arbitration Rules and Procedures (the “JAMS Rules”) then in effect (those rules are deemed to be incorporated by reference into this section, and as of the date of these terms). Arbitration will be handled by a sole arbitrator in accordance with the JAMS Rules. Judgment on the arbitration award may be entered in any court that has jurisdiction. Any arbitration under the terms will take place on an individual basis – class arbitrations and class actions are not permitted. You understand that by agreeing to the terms, you and b.well are each waiving the right to trial by jury or to participate in a class action or class arbitration. Notwithstanding the foregoing, you and b.well will have the right to bring an action in a court of proper jurisdiction for injunctive or other equitable or conservatory relief, pending a final decision by the arbitrator. You may instead assert your claim in “small claims” court, but only if your claim qualifies, your claim remains in such court and your claim remains on an individual, non-representative and non-class basis. An arbitrator shall not be bound by rulings in prior arbitrations involving different users, but is bound by rulings in prior arbitrations involving the same user to the extent required by applicable law.
E. Costs of Arbitration
Payment for any and all reasonable JAMS filing, administrative and arbitrator fees will be in accordance with the JAMS Rules. If the value of your claim does not exceed $75,000, b.well will pay for the reasonable filing, administrative and arbitrator fees associated with the arbitration, unless the arbitrator finds that either the substance of your claim or the relief sought was frivolous or brought for an improper purpose.
All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.
If a court or the arbitrator decides that any term or provision of this Arbitration Agreement (other than the section under the heading “Prohibition of Class and Representative Actions and Non-Individualized Relief”, above) is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement shall be enforceable as so modified. If a court or the arbitrator decides that any of the provisions under the heading “Prohibition of Class and Representative Actions and Non-Individualized Relief” are invalid or unenforceable, then the entirety of this Arbitration Agreement shall be null and void, unless such provisions are deemed to be invalid or unenforceable solely with respect to claims for public injunctive relief. The remainder of these terms will continue to apply.
You have the right to opt-out and not be bound by the arbitration provisions set forth in these terms by sending written notice of your decision to opt-out to the b.well Privacy Office at the Notice Address. The notice must be received by the b.well Privacy Office within thirty (30) days of your registering to use the services or agreeing to these terms, otherwise you shall be bound to arbitrate disputes in accordance with these terms. If you opt-out of these arbitration provisions, b.well also will not be bound by them.
I. Future Changes to Arbitration Agreement
Notwithstanding any provision in these terms to the contrary, b.well agrees that if it makes any future change to this Arbitration Agreement (other than a change to the Notice Address) while you are a user of the services, you may reject any such change by sending written notice to that effect in accordance with the procedures described under the heading “Opt Out” above. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this Arbitration Agreement as of the date you first accepted these terms (or accepted any subsequent changes to these terms).
14. GOVERNING LAW
These Terms and any action related thereto will be governed by and construed in accordance with the laws of the State of Maryland, without giving effect to any of its conflicts of laws principles.
Takeaway: If any clause in these terms is found unenforceable or invalid, that doesn’t affect any other part of the terms.
The unenforceability or invalidity of any clause in these terms shall not have an impact on the enforceability or validity of any other clause. Any unenforceable or invalid clause shall be regarded as removed from these terms to the extent of its unenforceability and invalidity. Under such circumstances, the terms shall be interpreted and enforced as if they did not contain the removed clause to the extent of its unenforceability and invalidity.
16. UPDATES TO THE TERMS
Takeaway: We may update these terms anytime and will specify an “Effective Date”. If the changes are material, the Effective Date will not be immediate, to give you time to consider the changes. If you decide not to accept the new terms, you must close your b.well account before the terms take effect.
We reserve the right to change these Terms. When we change terms, we will notify you in the application and by email, using the email address provided in your b.well account. These notifications will include a link to the updated Terms of Service, as posted on https://www.icanbwell.com/legal/terms-of-service. The updated Terms will indicate their effective date, and include links (i) to the terms of service it is replacing and (ii) a summary of changes.
To continue using the application, you will be required to accept the updated Terms. If we make material changes, we will give you a reasonable amount of time to consider the changes before they become effective. If you do not accept the Terms, you will be blocked from accessing your b.well account. If you are blocked from your b.well account, please contact email@example.com for assistance with closing your b.well account and receiving a machine-readable copy of your Health Data.
17. NO WAIVER
Takeaway: If we don’t enforce a part of these terms, that doesn’t mean we waive our rights to enforce them at a later time or in other contexts. A waiver will only occur through the proper channels.
Our failure to enforce any right or provision of these terms will not be considered a waiver of those rights. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of b.well and, if applicable, by the licensor for the relevant service. Except as expressly set forth in these terms, the exercise by either party of any of its remedies under these terms will be without prejudice to its other remedies under these terms or otherwise.
18. FORCE MAJEURE
Takeaway: We won’t be held responsible if we don’t deliver services due to forces out of our control.
Neither b.well nor its licensors shall be liable for any failure to deliver the services as a result of its compliance with any applicable law, ruling, regulation, ordinance, order or other governmental action or arising out of acts of God, fire, flood, war, sabotage, accidents, labor disputes, shortages, or interruptions in service by telecommunications suppliers or their respective third party service providers, or any other circumstance beyond their control.
19. ENTIRE AGREEMENT
Takeaway: These terms override any understandings you may have had with b.well before these terms. And remember, the policies of any third-party services or partners still apply.
These terms constitute the entire and exclusive understanding and agreement between b.well and you regarding the services. These terms supersede and replace any and all prior oral or written understandings or agreements between b.well and you regarding b.well. Your right to access and use the services of b.well authorized partners or providers of digital goods shall be governed by such third parties’ terms and conditions and, as applicable by service-specific terms. The terms and conditions of consumer app developers that are not subject to service-specific terms between b.well and you are not incorporated into these terms.
If you have any support needs or questions about these terms, please contact us at:
b.well Support Team
© b.well 2016.
b.well™ Connected Health | Terms of Service and Corporate Responsibility