Terms and Conditions
IMPORTANT – PLEASE CAREFULLY READ AND UNDERSTAND THESE TERMS AND CONDITIONS OF USE & SALE (THESE “TERMS”) BEFORE ACCESSING, USING, OR SUBSCRIBING OR PLACING AN ORDER OVER WWW.WEAREWELLNEST.COM OR OTHER OF OUR SITES WHICH LINK TO THESE TERMS.
THESE TERMS CONTAIN DISCLAIMERS OF WARRANTIES AND LIMITATIONS OF LIABILITIES INCLUDING ARBITRATION AND CLASS ACTION WAIVER PROVISIONS THAT WAIVE YOUR RIGHT TO A COURT HEARING, RIGHT TO A JURY TRIAL, AND RIGHT TO PARTICIPATE IN A CLASS ACTION (SEE SECTIONS 11, 17, 18, AND 19). ARBITRATION IS MANDATORY AND IS THE EXCLUSIVE REMEDY FOR ANY AND ALL DISPUTES UNLESS SPECIFIED BELOW IN SECTION 19. THESE TERMS FORM AN ESSENTIAL BASIS OF OUR AGREEMENT.
The use of www.wearewellnest.com or other sites to which these Terms are linked (each, a “Website”), owned and maintained by S. Hosp., LLC d/b/a The WellNest Company (“WellNest,” “we,” “our,” “us”), are governed by these Terms. We offer the Website, including all information, tools, and services available from the Website to you, the user, conditioned upon your acceptance of all terms and conditions stated herein. By accessing, using, subscribing, or placing an order over the Website, you and your business (including any sub users you may have) agree to the terms and conditions set forth herein. If you do not agree to these Terms in their entirety, you are not authorized to use the Website in any manner or form whatsoever.
THIS IS A BINDING AGREEMENT. THESE TERMS TOGETHER WITH OUR PRIVACY STATEMENT AND DATA PROCESSING ADDENDUM FORM A LEGALLY BINDING AGREEMENT (THE “AGREEMENT”) BETWEEN YOU AND YOUR BUSINESS (“YOU”) AND WELLNEST. THIS AGREEMENT GOVERNS YOUR ACCESS TO AND USE OF THE WEBSITE AND THE SERVICES PROVIDED BY WELLNEST, ANY ORDER YOU PLACE THROUGH THE WEBSITE, BY TELEPHONE, OR OTHER ACCEPTED METHOD OF PURCHASE AND, AS APPLICABLE, YOUR USE OR ATTEMPTED USE OF THE PRODUCTS OR SERVICES OFFERED ON OR AVAILABLE THROUGH THE WEBSITE. PLEASE PRINT AND RETAIN A COPY OF THIS AGREEMENT FOR YOUR RECORDS.
NAVIGATING THROUGH THESE TERMS
You can use the links below to navigate to areas of these Terms that apply specifically to you, or which may otherwise be of interest:
SECTION 1 – WEBSITE USE
The Website is intended for businesses operated by adults. If you use the Website, you are affirming that you are at least 18 years old or the legal age of majority in your state or province of residence (whichever is greater), may operate a business, have the legal capacity to enter into a binding contract with us, and have read this Agreement and understand and agree to its terms.
We recognize in certain instances, the Website may be accessed by youth under the age of 18. In these instances, by accessing the Website, you are affirming that your parent or guardian, of at least 18 years old, has given requisite verifiable consent for you to do so and that they agree to these terms on your behalf.
SECTION 2 – WEBSITE USER CONDUCT AND RESTRICTIONS – LICENSE TERMS
All aspects of our Website are protected by U.S. and international copyright, trademark, and other intellectual property laws, including all content, information, design elements, text material, logos, taglines, metatags, hashtags, photographic images, testimonials, personal stories, icons, video and audio clips, and downloads. No material on the Website may be copied, reproduced, distributed, republished, uploaded, displayed, posted, or transmitted in any way whatsoever. The WellNest trademark and logo are proprietary marks of The WellNest Company, and the use of those marks is strictly prohibited. Nothing herein gives you the right to use, copy, register as a domain name, reproduce, or otherwise display any logo, tagline, trademark, trade name, copyrighted material, patent, trade dress, trade secret, or confidential information owned by WellNest.
Subject to your continued strict compliance with these Terms, WellNest provides to you a revocable, limited, non-exclusive, royalty-free, non-sublicensable, non-transferable license to use the Website. You acknowledge and agree that you do not acquire any ownership rights in any material protected by intellectual property laws.
You agree not to use or attempt to use the Website or any services provided by WellNest, whether alone, or in conjunction with other software or hardware, in any unlawful manner or a manner harmful to WellNest. You further agree not to commit any harmful or unlawful act or attempt to commit any harmful or unlawful act on or through the Website or through use of any software or hardware including, but not limited to, refraining from:
HARMFUL OR PROHIBITED ACTS. Any dishonest or unethical business practice; any violation of the law; infliction of harm to WellNest’s reputation; hacking and other digital or physical attacks on the Website; scraping, crawling, downloading, screen-grabbing, or otherwise copying content on the Website and/or transmitting it in any way we haven’t specifically permitted; introducing, transmitting, or storing viruses or other malicious code; interfering with the security or operation of the Website; framing or mirroring the Website; creating, benchmarking, or gathering intelligence for a competitive offering; infringing another party’s intellectual property rights, including failing to obtain permission to upload/transfer/display works of authorship; intercepting or expropriating data; deceptive manipulation of media; and the violation of the rights of WellNest or any third party;
“SPAMMING” AND UNSOLICITED COMMUNICATIONS. We have zero tolerance for spam and unsolicited communications. Any communications sent or authorized by you reasonably deemed “spamming,” or any other unsolicited solicitations (including without limitation postings on social media or third party blogs) will be deemed a material threat to WellNest’s reputation and to the rights of third parties. It is your obligation, exclusively, to ensure that all business communications comply with state and local anti-spamming or analogous laws.
OFFENSIVE COMMUNICATIONS. Any communication sent, posted, or authorized by you, including without limitation postings on any website operated by you, or social media or blog, which are: sexually explicit, obscene, vulgar, or pornographic; offensive, profane, hateful, threatening, harmful, inciting, defamatory, libelous, harassing, or discriminatory; misleading, false, or misinforming; graphically violent; or solicitous of unlawful behavior.
ILLEGAL BUSINESS ACTIVITY. Any promotion of illegal business activity, including without limitation multi-level marketing (except in compliance with the FTC’s Business Guidance Concerning Multi-Level Marketing, promoting the sale or use of illegal drugs (including but not limited to Marijuana-derived CBD Oil); or infringing or promoting the infringement of the intellectual property rights of another.
In addition to the foregoing, WellNest requires you to follow these best practices when sending electronic communications:
Use only permission-based marketing electronic communications lists (i.e., lists in which each recipient affirmatively opted-in to receiving those electronic communications).
Always include a working “unsubscribe” mechanism in each marketing electronic communication that allows the recipient to opt out from your mailing list (receipt/transactional messages that are exempt from “unsubscribe” requirements of applicable law are exempt from this requirement).
Comply with all requests from recipients to be removed from your mailing list within the earlier of ten (10) days of receipt of the request, or the deadline under applicable law.
Include in each electronic communication your valid physical mailing address or a link to that information.
Do not send electronic communications to addresses obtained from purchased or rented lists.
Do not use third party electronic addresses, domain names, or mail servers without proper permission from the third party.
Do not engage in spamming.
Do not disguise the origin, or subject matter of, any electronic communications or falsify or manipulate the originating message address, subject line, header, or transmission path information for any electronic communication.
Do not send offers to obtain or attempt to obtain personal information, or generate leads, for third parties.
Do not send “chain letters,” “pyramid schemes,” or other types of electronic messages that encourage the recipient to forward the content to strangers.
Do not send to lists of addresses that are programmatically generated or scraped from the Internet.
Do not employ sending practices, or have overall message delivery rates, which may cause harm to our services or other users of our services.
Do not send messages that may be considered junk mail. Some examples of these types of messages include, but are not limited to, messaging related to penny stocks, gambling, multi-level marketing (except in compliance with the FTC’s Business Guidance Concerning Multi-Level Marketing), direct to consumer pharmaceutical sales, and payday loans.
You further agree to conduct yourself and all of your businesses in full compliance with all applicable laws, whether through the use of WellNest or otherwise.
SECTION 3 – OUR PRIVACY STATEMENT AND YOUR PERSONAL INFORMATION
We respect your privacy and the use and protection of your non-public, personal information. Your submission of personal information through the Website is governed by our Privacy Statement. Our Privacy Statement may be viewed at https://www.wearewellnest.com/privacy-policy. WellNest reserves the right to modify its Privacy Statement in its reasonable discretion from time-to-time. Our Privacy Statement is incorporated into this Agreement by reference.
SECTION 4 – INFORMATION YOU PROVIDE; REGISTRATION; PASSWORDS; PROHIBITION AGAINST HOSTING THIRD-PARTY AGENCY ACCOUNTS
As a WellNest customer, you may be required to create an account with WellNest. You warrant that the information you provide us is truthful and accurate, and that you are not impersonating another person. You are responsible for maintaining the confidentiality of any password you may use to access your WellNest user account, and you agree not to transfer your password or user name, or lend or otherwise transfer your use of or access to your user account, to any third party. You are also responsible for maintaining the confidentiality of proprietary or non-public information we may share with you as a WellNest user, such as technical information, our pricing, our business strategy, and data about other past or current WellNest users or their customers.
You are fully responsible for all transactions with, and information conveyed to, WellNest under your user account. You agree to immediately notify WellNest of any unauthorized use of your password or user name or any other breach of security related to your user account. You agree that WellNest is not liable, and you will hold WellNest harmless, for any loss or damage arising from your failure to comply with any of the foregoing obligations. Please see Section 19 below for additional information.
SECTION 5 – ORDER PLACEMENT AND ACCEPTANCE
If you order a service or product, payment must be received by us before your order is accepted. We may require additional information regarding your order if any required information was missing or inaccurate, and may cancel or limit an order any time after it has been placed. Your electronic order confirmation, or any form of confirmation, does not signify our acceptance of your order. You must contact us immediately at firstname.lastname@example.org in order to modify or cancel your pending order. We cannot guarantee that we will be able to amend your order in accordance with your instructions.
All items are subject to availability. We will notify you if any item is not available, the expected availability date, and may offer you an alternative product or service. If the availability of any product or service is delayed and you do not wish to substitute the product or service, upon your request, we will cancel your order and if previously charged, your payment card will be fully refunded for that specific order. We reserve the right to limit the sales of our products and services to any person, geographic region, or jurisdiction. We may exercise this right on a case-by-case basis at our sole and exclusive discretion.
Your purchase order of products and other services is conditioned on you re-affirming your acceptance of this Agreement.
All advertised prices are in, and all payments shall be in, U.S. Dollars.
SECTION 6 – REFUNDS FOR HARD GOODS
If you have purchased a “hard good” (for example, a book or other tangible product) from WellNest or any related brands, you may receive a limited refund if you comply with the following conditions (unless otherwise specified):
You must request a refund in writing by contacting email@example.com;
Your request for a refund must be made within thirty (30) days of your purchase;
You must return the hard goods to WellNest immediately, according to the shipping and other instructions you will receive by email after requesting a refund;
The hard goods must be returned to WellNest in like-new, or re-sellable condition, as determined in WellNest’s sole, reasonable discretion.
SECTION 7 – SUBSCRIPTION TERMS AND AUTOMATIC PAYMENT
A WellNest customer is responsible for paying all sums due to WellNest in connection with their monthly subscription in accordance with these Terms. The first fee payable in accordance with these Terms is due when the user account is set up and payment of the monthly fee is a condition of access and you have not canceled the automatic subscription with us. Every calendar month, your account will be charged up to the subscription fee plus applicable tax for the following month’s subscription, together with any other fees for the following month’s subscription plus any accumulated charges for the past period (collectively, “Fees”). Failure by the WellNest customer to use any of the services available through the service provided by WellNest does not relieve the WellNest customer of their payment obligations under these Terms.
Potential users can pay by credit card or debit card. Payment details shall be collected by us through our secure financial data collection mechanism. You acknowledge and agree that we hold data relating to the transaction, including the last four digits and the expiration date of the card used to purchase the products or services together with details on when payment is due. You further acknowledge and agree that payments are due on a recurring basis in accordance with the payment terms for the specific service purchased (unless the subscription is cancelled in accordance with these Terms) and therefore authorize the automatic payment collection terms applicable to that specific service (e.g., on a monthly basis and for a specific amount). If for whatever reason, we are unable to process your monthly subscription payment, we may in our sole discretion, charge you a lesser amount to “pause” your account and retain your information as we attempt to contact you for updated payment information.
IF YOU ARE A WELLNEST CUSTOMER WITH A MONTHLY OR ANNUAL SUBSCRIPTION AND YOU HAVE PROVIDED US WITH A VALID CREDIT OR DEBIT CARD NUMBER OR AN ALTERNATE PAYMENT METHOD, EACH PAYMENT WILL BE AUTOMATICALLY PROCESSED AT THE TIME OF YOUR DESIGNATED PAYMENT DATE (MONTHLY OR ANNUALLY) AND WILL BE BILLED TO THE PAYMENT METHOD YOU PROVIDED TO US AT THE TIME OF YOUR ENROLLMENT. AS NOTED ABOVE, IF WE DO NOT RECEIVE SUFFICIENT FUNDS, WE MAY CHARGE YOU A LESSER AMOUNT TO PAUSE YOUR ACCOUNT. IF YOU WISH TO CANCEL YOUR SUBSCRIPTION TO WELLNEST, YOU MAY DO SO THROUGH YOUR ACCOUNT DASHBOARD OR BY EMAILING ADMIN@WEAREWELLNEST AT LEAST TEN (10) DAYS BEFORE THE FIRST DAY OF YOUR NEXT SUBSCRIPTION MONTH.
WellNest reserves the right to immediately terminate a user’s account and/or service for any unpaid (in whole or part) period of the subscription (with or without notice). Termination of service in no way relieves or excuses the user from any obligation to pay outstanding charges or expenses. In the event WellNest starts collection processes of any type, you will be liable for all collection costs, including legal fees and expenses, as provided in Section 18 below.
In addition to any Fees, WellNest may also charge applicable value added or other tax.
SECTION 8 – SHIPPING FEES
Unless otherwise stated on the Website at the time of purchase, if we ship you a physical product, we reserve the right to add applicable shipping and handling fees to your order. Unless otherwise stated, we will use commercially reasonable efforts to fulfill your order within a reasonable time after receipt of your properly completed and verified order. Accurate shipping address and phone number information is required. Although we may provide delivery or shipment timeframes or dates, such dates are good-faith estimates and are subject to change. If your order will be delayed, we will contact you at the email address you provided when placing your order. If we are unable to contact you or you would like to cancel your order, we will cancel the order and refund the full amount charged. We shall not be liable for any loss, damage, cost, or expense related to any delay in shipment or delivery caused by any third party carrier or other delivery service not owned or controlled by us. The risk of loss and title for such items pass to you upon our delivery to any third party carrier.
SECTION 9 – PRODUCTS, SERVICES, AND PRICES AVAILABLE ON THE WEBSITE
Products, services, and prices are generally posted at the following URL, but are subject to change: https://dominiclloyd.wixsite.com/wellnest/pricing. At times, WellNest may also offer additional products and services, which will be described when offered but nonetheless governed by this Agreement. WellNest may also offer additional products and services through other sites to which it owns or controls; such sites are also governed by the terms herein. WellNest reserves the right, without notice, to discontinue products or services or modify specifications and prices on products and services without incurring any obligation to you. Except as otherwise expressly provided for in these Terms, any price changes to your subscription or purchase of product(s) or services will take effect following email notice to you.
You acknowledge and agree that if you join the WellNest Training Club services do not include travel or lodging, any such travel or lodging expenses incurred by you shall be your responsibility and shall be in addition to any costs or fees associated with the program. You also acknowledge that the content of the WellNest Training Club services, including without limitation the materials and information provided to you as education, is confidential and proprietary to WellNest; accordingly, you agree that you shall not communicate the teachings, materials, or other information acquired or learned from the WellNest Training Club services to any other person.
Price changes are effective on the first day of the month after the price change is posted. By accessing, using, subscribing or placing an order over the Website, you authorize WellNest to charge your account in the amount indicated for the value of the services you select, including any future price changes. If you request a downgrade in services, the downgrade (and corresponding price reduction) will become effective on the first day of the month following your requested downgrade. By your continued use of WellNest services, and unless you terminate your subscription as provided herein, you agree that WellNest may charge your credit card monthly for the products and services you have selected, and you consent to any price changes for such services after email notice has been provided to you.
WellNest takes reasonable steps in an effort to ensure that the prices set forth on the Website are correct, and to accurately describe and display the items available on the Website. If the correct price of our product is higher than its stated price, we will, at our discretion, either contact you for instructions or cancel your order and notify you of such cancellation.
When ordering products or services, please note that WellNest does not warrant that product or service descriptions are accurate, complete, current, or error-free, or that packaging will match the actual product that you receive. All sales are deemed final except as provided in Section 6 of these Terms. WellNest’s descriptions of, or references to, products or services not owned by WellNest are not intended to imply endorsement of that product or service, or constitute a warranty by WellNest.
SECTION 10 – DISCLAIMER – YOUR BUSINESS’ INDIVIDUAL RESULTS WILL VARY
Every online business is different, employing different strategic approaches and organizational structures, and offering different products and services. Therefore, individual results will vary from user to user. YOUR BUSINESS’ INDIVIDUAL RESULTS WILL VARY DEPENDING UPON A VARIETY OF FACTORS UNIQUE TO YOUR BUSINESS, INCLUDING BUT NOT LIMITED TO YOUR CONTENT, BUSINESS MODEL, AND PRODUCT AND SERVICE OFFERINGS.
WellNest does not promise, guarantee, or warrant your business’ success, income, or sales. You understand and acknowledge that WellNest will not at any time provide sales leads or referrals to you or your business. Those businesses who purchase our products or services will receive access to software and tools to create Internet sales and otherwise assist with their respective online offerings. However, we do not guarantee your business’ success and based upon many market factors that we cannot control, the software and tools we provide may or may not be applicable to your specific business. Further, we do not make earnings claims, efforts claims, return on investment claims, or claims that our software, tools, or other offerings will make your business any specific amount of money, and it is possible that you will not earn your investment back. We do not sell a business opportunity, “get rich quick” program, guaranteed system, franchise system, or a business in a box. You should not purchase our products or services if that is your expectation. Instead, you should purchase with the understanding that using the information and software purchased will take time and effort and may be applicable in some situations but not others. Also, we do not offer any tax, accounting, financial, or legal advice. You should consult your business’ accountant, attorney, or financial advisor for advice on these topics.
SECTION 11 – YOUR RESPONSIBILITIES IN RUNNING YOUR BUSINESS
You represent and warrant that you operate a business in good standing and you agree that there are no prior or pending government investigations or prosecutions against you or your business. You also agree that you and your business will only use WellNest products and services for lawful purposes and that you shall not use such products or services, whether alone or in connection with other software, hardware, or services, for any unlawful or harmful purpose. You are solely and exclusively responsible for complying with any and all applicable laws and regulations in running your business, including, but not limited to, all laws governing advertising and marketing claims, subscriptions, refunds, premium offers, tax laws, and all additional laws applicable to your business. You agree to notify WellNest if any investigation or lawsuit is threatened or filed against you, whereupon WellNest shall have the right to terminate this Agreement without liability. WellNest shall have no liability for your violation of any laws. You are solely and exclusively responsible for collecting and reporting any and all sales and use tax, and any other taxes, which may apply to sales of products or services by your business. WellNest shall not be responsible to collect or report any taxes which may apply to your business or sales of products or services by your business. You agree to indemnify WellNest as set out in Section 19 below in the event that you and/or your business violates any law and a claim is threatened or asserted against WellNest as a result.
SECTION 12 – COMMISSIONS PROGRAM AND INDEPENDENT WELLNEST AFFILIATE PROGRAM
WellNest may offer you an opportunity to become an independent WellNest affiliate (“Affiliate”), wherein you have the opportunity to earn money for WellNest products and services that you sell to other customers subject to your acceptance of the terms of the WellNest Affiliate agreement (the “Affiliate Agreement”). WellNest reserves the sole and exclusive right to determine the amount of remuneration each Affiliate will receive in exchange for the Affiliate’s efforts. Affiliate commission is further discussed in the Affiliate Agreement. For avoidance of doubt, Affiliates are independent contractors and are not employees or agents of The WellNest Company. Affiliates have no authority to act on behalf of or bind WellNest. Affiliates shall be solely and exclusively responsible for all costs and other expenses incurred. Sections 16 and 18 below – in their entirety (as well as all other terms in this Agreement) – apply to Affiliates, and further govern the relationship between WellNest and each Affiliate.
You will need to register with our third-party payment provider to receive payment. This means you will be authorizing third party companies to contact you. Before you can be paid, you must provide certain information (such as, but not necessarily limited to a completed W-8 or W-9). If you do not complete the requisite information within one hundred and twenty (120) days of earning your Commission, you will be deemed to have permanently waived all rights to the Commission. If you are not a resident of the United States, taxes (including without limitation VAT) may be withheld where required by applicable law. You are solely responsible for complying with all tax laws in your respective jurisdiction(s) including, but not limited to, the payment of all required taxes to, and filing of all returns and other required documents with, the applicable governing body(ies).
To find out more information about the Affiliate program and the additional terms that apply, please click here. For avoidance of doubt, all Sections of these Terms apply to you in your role as an Affiliate, unless expressly provided otherwise.
SECTION 13 – TESTIMONIALS, REVIEWS, AND PICTURES/VIDEOS
WellNest is pleased to hear from users and customers and welcomes your comments regarding our services and products. WellNest may use testimonials and/or product reviews in whole or in part together with the name, city, and state of the person submitting it. Testimonials may be used for any form of activity relating to WellNest’s services or products, in printed and online media, as WellNest determines in its sole and exclusive discretion. Testimonials represent the unique experience of the participants and customers submitting the testimonial, and do not necessarily reflect the experience that you and/or your business may have using our services or products. As set forth above in Section 10, your business’ results will vary depending upon a variety of factors unique to your business and market forces beyond WellNest’s control. Note that testimonials, photographs, and other information that you provide to us will be treated as non-confidential and nonproprietary, and, by providing them, you grant WellNest a royalty-free, worldwide, perpetual, non-exclusive and irrevocable license to use them.
Additionally, WellNest reserves the right to correct grammatical and typing errors, to shorten testimonials prior to publication or use, and to review all testimonials prior to publication or use. WellNest shall be under no obligation to use any, or any part of, any testimonial or product review submitted.
SECTION 14 – COMPLIANCE WITH THE LAWS, INCLUDING COMMITMENT AGAINST HARASSMENT AND INTERFERENCE WITH OTHERS
As a WellNest customer and/or Affiliate, whether or not you display the WellNest logo, you must comply with all laws, both U.S. and foreign, including, but not limited to, laws prohibiting deceptive and misleading advertising and marketing, e-mail marketing laws (including the federal CAN-SPAM Act (15 U.S.C. § 7701)), data protection laws (including but not limited to the European Union General Data Protection Regulation, U.K. Data Protection Act, California Consumer Privacy Act, and Brazilian General Data Protection Regulation), telemarketing laws (including the federal Telephone Consumer Protection Act (47 U.S.C. § 227) and the Federal Trade Commission’s Telemarketing Sales Rule (16 C.F.R. § 310)), laws governing testimonials (including the Federal Trade Commission’s Revised Endorsements and Testimonials Guides (16 CFR Part 255)), and/or any similar laws, laws relating to intellectual property, privacy, security, terrorism, corruption, child protection, or import/export laws. You are solely responsible for ensuring their compliance with all applicable laws, rules, regulations, and court orders of any kind of any jurisdiction applicable to you and your business, and any recipient to whom you send digital messages using our products or services. You have the responsibility to be aware of, understand, and comply with all applicable laws and ensure that you and all users of your account comply with such applicable laws at all times.
If you use any messaging software, including any WellNest-provided messaging software now existing or which may in the future be created, or any other messaging system or other software or hardware provided by you or a third-party, you agree that you will follow all applicable laws with respect to sending messages, including without limitation the federal Telephone Consumer Protection Act. You further agree to indemnify and defend WellNest from any claims, damages, losses, and lawsuits of any kind or nature that may be made or brought against WellNest relating in any way to your violation of law or third-party rights by use or misuse of any messaging software or hardware, whether or not provided by WellNest. You further understand and agree that WellNest has no control over, and therefore cannot be responsible for, the functionality or failures of any third party software, including without limitation Facebook, Facebook Messenger, and internet browser notifications. WELLNEST DOES NOT WARRANT THAT ANY WELLNEST MESSAGING SOFTWARE WILL BE COMPATIBLE WITH ANY THIRD PARTY SOFTWARE. YOU ARE SOLELY AND EXCLUSIVELY RESPONSIBLE FOR YOUR USE OF ANY AND ALL MESSAGING SOFTWARE AND/OR HARDWARE.
SECTION 15 – DISCLAIMERS OF OTHER WARRANTIES
EXCEPT WHERE OTHERWISE INAPPLICABLE OR PROHIBITED BY LAW:
THE WEBSITE AND ALL CONTENT ARE PROVIDED ON AN “AS IS”, “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. WE MAKE NO, AND EXPRESSLY DISCLAIM ANY AND ALL, REPRESENTATIONS AND WARRANTIES AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, AVAILABILITY, ACCURACY, AND/OR COMPLETENESS OF ANY INFORMATION ON THIS WEBSITE. WE DO NOT REPRESENT OR WARRANT, AND EXPRESSLY DISCLAIM THAT: (A) THE USE OF THE WEBSITE OR ANY SOFTWARE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE, OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE WEBSITE, SOFTWARE, OR SERVICES WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, SOFTWARE, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE WEBSITE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS IN THE WEBSITE WILL BE CORRECTED, OR (F) THE WEBSITE OR THE SERVER(S) THAT MAKE THE WEBSITE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
SECTION 16 – LIMITATIONS OF LIABILITIES
EXCEPT WHERE OTHERWISE INAPPLICABLE OR PROHIBITED BY LAW, IN NO EVENT SHALL WELLNEST OR ANY OF ITS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, INDEPENDENT CONTRACTORS, TELECOMMUNICATIONS PROVIDERS, AND/OR AGENTS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL, PUNITIVE, OR ANY OTHER DAMAGES, FEES, COSTS OR CLAIMS ARISING FROM OR RELATED TO THIS AGREEMENT INCLUDING THE PRIVACY STATEMENT, THE SERVICES OR PRODUCTS, YOUR OR A THIRD PARTY’S USE OR ATTEMPTED USE OF THE WEBSITE OR ANY SOFTWARE, SERVICE, OR PRODUCT, REGARDLESS OF WHETHER WELLNEST HAS HAD NOTICE OF THE POSSIBILITY OF SUCH DAMAGES, FEES, COSTS, OR CLAIMS. THIS INCLUDES, WITHOUT LIMITATION, ANY LOSS OF USE, LOSS OF PROFITS, LOSS OF DATA, LOSS OF GOODWILL, COST OF PROCUREMENT OF SUBSTITUTE SERVICES OR PRODUCTS, OR ANY OTHER INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, OR OTHER DAMAGES. THIS APPLIES REGARDLESS OF THE MANNER IN WHICH DAMAGES ARE ALLEGEDLY CAUSED, AND ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), WARRANTY, OR OTHERWISE.
IN NO EVENT SHALL WELLNEST’S LIABILITY TO YOU OR YOUR BUSINESS EXCEED THE AMOUNT OF THREE (3) TIMES THE PAYMENTS PAID BY YOU TO WELLNEST FOR THE MONTH PRECEDING THE DATE IN WHICH THE FACTS GIVING RISE TO A CLAIM AGAINST WELLNEST OCCURRED OR TWO-THOUSAND DOLLARS ($2,000), WHICHEVER IS GREATER.
SECTION 17 – DISPUTE RESOLUTION BY MANDATORY BINDING ARBITRATION AND CLASS ACTION WAIVER
PLEASE READ THIS ARBITRATION PROVISION CAREFULLY TO UNDERSTAND YOUR AND YOUR BUSINESS’ RIGHTS. EXCEPT WHERE PROHIBITED BY LAW, YOU AND YOUR BUSINESS AGREE THAT ANY CLAIM THAT YOU OR YOUR BUSINESS MAY HAVE IN THE FUTURE MUST BE RESOLVED THROUGH FINAL AND BINDING CONFIDENTIAL ARBITRATION. YOU ACKNOWLEDGE AND AGREE THAT YOU AND YOUR BUSINESS ARE WAIVING THE RIGHT TO A TRIAL BY JURY. THE RIGHTS THAT YOU AND YOUR BUSINESS WOULD HAVE IF YOU WENT TO COURT, SUCH AS DISCOVERY OR THE RIGHT TO APPEAL, MAY BE MORE LIMITED OR MAY NOT EXIST. YOU AGREE THAT YOU AND YOUR BUSINESS MAY ONLY BRING A CLAIM IN AN INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF (LEAD OR OTHERWISE) OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. YOU FURTHER AGREE THAT THE ARBITRATOR MAY NOT CONSOLIDATE PROCEEDINGS OR CLAIMS OR OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING.
THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED. HOWEVER, AN ARBITRATOR CAN AWARD ON AN INDIVIDUAL BASIS THE SAME DAMAGES AND RELIEF AS A COURT (INCLUDING INJUNCTIVE AND DECLARATORY RELIEF OR STATUTORY DAMAGES), AND MUST FOLLOW THESE TERMS AS A COURT WOULD.
If you have a complaint, dispute, or controversy, you agree to first contact us at firstname.lastname@example.org to attempt to resolve the dispute or controversy informally. Any controversy or claim arising out of or related to the use of the Website, any product, service, or software, these Terms, the Privacy Statement, the Affiliate Agreement, or your relationship with us that cannot be resolved through such informal process or through negotiation within one hundred and twenty (120) days shall be resolved by binding, confidential arbitration administered by the American Arbitration Association (“AAA”), and judgment on the award rendered may be entered in any court having jurisdiction thereof. We agree that any claim we may have against you or your business will also be subject to this arbitration provision, except as provided in Sections 18 and 19 below. The arbitration will be conducted by a single neutral arbitrator in the English language in Alameda County, California, unless we both agree to conduct the arbitration by telephone or written submissions. The arbitrator shall be selected by agreement of the parties or, if the parties cannot agree, chosen in accordance with Rules of the AAA. The arbitration will be conducted in accordance with the provisions of the AAA’s Commercial Arbitration Rules and Procedures, in effect at the time of submission of the demand for arbitration. The AAA’s Rules are available at www.adr.org or by calling 1-800-778-7879. The arbitrator shall have the exclusive and sole authority to resolve any dispute relating to the interpretation, construction, validity, applicability, or enforceability of these Terms, the Privacy Statement, this arbitration provision, and any other terms incorporated by reference into these Terms. The arbitrator shall have the exclusive and sole authority to determine whether any dispute is arbitrable. The arbitrator shall have the exclusive and sole authority to determine whether this arbitration agreement can be enforced against a non-signatory to this agreement and whether a non-signatory to this agreement can enforce this provision against you or WellNest.
Payment of all filing, administration, and arbitrator fees will be governed by the AAA’s Rules. In all other respects, the parties shall each pay their own additional fees, costs, and expenses, including, but not limited to, those for any attorneys, experts, documents, and witnesses.
The arbitrator shall follow the substantive law of the State of California without regard to its conflicts of laws principles. Any award rendered shall include a confidential written opinion and shall be final, subject to appeal under the Federal Arbitration Act, 9 U.S.C. §§ 1-16, as amended. Judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
You and WellNest agree that disputes will only be arbitrated on an individual basis and shall not be consolidated, on a class wide, representative basis, or with any other arbitration(s) or other proceedings that involve any claim or controversy of any other party. You and WellNest expressly waive any right to pursue any class or other representative action against each other.
Failure or any delay in enforcing this arbitration provision in connection with any particular claim will not constitute a waiver of any rights to require arbitration at a later time or in connection with any other claims except that all claims must be brought within 1 year after the claim arises (the 1 year period includes the one hundred and twenty (120) day informal resolution procedures described above).
This arbitration provision sets forth the terms and conditions of our agreement to final and binding confidential arbitration and is governed by and enforceable under the Federal Arbitration Act, 9 U.S.C. §§ 1-16, as amended.
This provision survives termination of your account or relationship with WellNest, bankruptcy, assignment, or transfer. If the class action waiver is deemed unenforceable (i.e., unenforceability would allow arbitration to proceed as a class or representative action), then this entire arbitration provision shall be rendered null and void and shall not apply. If a portion of this arbitration provision (other than the class action waiver) is deemed unenforceable, the remaining portions of this arbitration provision shall remain in full force and effect.
YOU UNDERSTAND THAT YOU AND/OR YOUR BUSINESS WOULD HAVE HAD A RIGHT TO LITIGATE THROUGH A COURT, TO HAVE A JUDGE OR JURY DECIDE YOUR CASE, AND TO BE PARTY TO A CLASS OR REPRESENTATIVE ACTION. HOWEVER, YOU UNDERSTAND AND AGREE TO HAVE ANY CLAIMS DECIDED INDIVIDUALLY AND ONLY THROUGH BINDING, FINAL, AND CONFIDENTIAL ARBITRATION IN ACCORDANCE WITH THIS ARBITRATION PROVISION.
SECTION 18 – WELLNEST’S ADDITIONAL REMEDIES
In order to prevent or limit irreparable injury to WellNest, in the event of any breach or threatened breach by you of the provisions of this Agreement or any infringement or threatened infringement by you of the intellectual property of WellNest or a third-party, WellNest shall be entitled to seek a temporary restraining order and preliminary and permanent injunctions or other equitable relief from a court of competent jurisdiction located in Alameda County, California restraining such breach, threatened breach, infringement, or threatened infringement. Nothing in this Agreement shall be construed as prohibiting WellNest from pursuing in court any other remedies available to it for such breach, threatened breach, infringement, or threatened infringement, including the recovery of monetary damages from you and your business. You and/or your business hereby irrevocably consent to the exclusive personal jurisdiction of, and exclusive venue in, the courts of Alameda County, California for all such claims, and forever waive any challenge to said courts’ exclusive jurisdiction or venue.
SECTION 19 – INDEMNIFICATION
To the fullest extent permitted by law, you agree to defend, indemnify, and hold harmless WellNest, its directors, officers, employees, shareholders, licensors, independent contractors, subcontractors, suppliers, affiliates, parent companies, subsidiaries, and agents from and against any and all claims, actions, loss, liabilities, damages, expenses, demands, and costs of any kind, including, but not limited to attorneys’ fees and costs of any litigation or other dispute resolution, arising out of, resulting from, or in any way connected with or related to (1) your use, misuse, or attempt to use the Website, software, products, or services, (2) information you submit or transmit through the Website, (3) your breach of these Terms, the documents they incorporate by reference, the Agreement, or the representations and warranties provided by you in this Agreement, or (4) your violation of any law or the rights of a third-party.
SECTION 20 – NOTICE AND TAKEDOWN PROCEDURES; COPYRIGHT ACT
If you believe that materials or content available on the Website infringes any copyright you own, you or your agent may send WellNest a notice requesting that WellNest remove the materials or content from the Website. If you believe that someone has wrongly filed a notice of copyright infringement against you, you may send WellNest a counter-notice. Notices and counter-notices should be sent to The WellNest Company, Attention Legal Department, 3559 Mount Diablo Blvd, Lafayette, California 94549, or by e-mail to email@example.com. These Terms fully incorporate by reference the DMCA Policy.
SECTION 21 – THIRD-PARTY LINKS
The Website may contain links to other websites. WellNest assumes no responsibility for the content or functionality of any non-WellNest website to which we provide a link. Please see our Privacy Statement for more details.
SECTION 22 – TERMINATION
This Agreement will take effect (or shall re-take effect) at the time you click “ACTIVATE MY ACCOUNT NOW,” “PAY NOW,” “ORDER NOW”, “SUBMIT”, “BUY NOW”, “PURCHASE”, “I ACCEPT”, “I AGREE” or similar links or buttons, otherwise submit information through the Website, respond to a request for information, begin installing, accessing, or using the Website, complete a purchase, select a method of payment, and/or enter in payment method information, whichever is earliest. If, in our sole discretion, you fail, or we suspect that you have failed, to comply with any term or provision of the Agreement or violated any law, whether in connection with your use of WellNest products and services or otherwise, we may terminate the Agreement or suspend your access to the Website at any time without notice to you. Sections 11, 12, 13, 15 through 21, and 24 through 33 of this Agreement, as well as any representations, warranties, and other obligations made or undertaken by you, shall survive the termination of this Agreement and/or your account or relationship with WellNest. Upon termination, you remain responsible for any outstanding payments to WellNest.
SECTION 23 – NO WAIVER
No failure or delay on the part of WellNest in exercising any right, power or remedy under this Agreement may operate as a waiver, nor may any single or partial exercise of any such right, power, or remedy preclude any other or further exercise of such right, power, or remedy, or the exercise of any other rights, power, or remedy under this Agreement. A waiver of any right or obligation under this Agreement shall only be effective if in writing and signed by WellNest.
SECTION 24 – GOVERNING LAW AND VENUE
This Agreement and any issue or dispute arising out of or otherwise related to this Agreement or your access to or use of the Website, our Privacy Statement, or any matter concerning WellNest, including your purchase and use or attempted use of any service or product, shall be governed exclusively by the laws of State of California without regard to its conflicts of laws principles. To the extent that any claim or dispute is found by the arbitrator or (if proper) a court of competent jurisdiction to be excluded from the arbitration agreement in Section 17 above, the parties agree any such claim or dispute shall be exclusively brought in and decided by the state or federal courts located in Alameda County, California, and you hereby irrevocably consent to the exclusive personal jurisdiction of, and exclusive venue in, such courts, and forever waive any challenge to said courts’ exclusive jurisdiction or venue. All such claims must be brought on an individual and non-class, non-representative basis, and you forever waive any right to bring such claims on a class wide or representative basis.
SECTION 25 – FORCE MAJEURE
WellNest will not be responsible to you for any delay, damage, or failure caused or occasioned by any act of nature or other causes beyond our reasonable control.
SECTION 26 – ASSIGNMENT
WellNest may assign its rights under this Agreement at any time, without notice to you. Your rights arising under this Agreement cannot be assigned without WellNest’s (or its assigns’) express written consent.
SECTION 27 – ELECTRONIC SIGNATURE
All information communicated on the Website is considered an electronic communication. When you communicate with WellNest through or on the Website or via other forms of electronic media, such as e-mail, you are communicating with the company electronically. You agree that we may communicate electronically with you and that such communications, as well as notices, disclosures, agreements, and other communications that we provide to you electronically, are equivalent to communications in writing and shall have the same force and effect as if they were in writing and signed by the party sending the communication.
SECTION 28 – CHANGES TO THE AGREEMENT
You can review the most current version of the Terms at any time at https://www.wearewellnest.com/terms. We reserve the right, at our sole discretion, to update, change or replace any part of the Agreement, including the Privacy Statement by posting updates and changes to our Website. It is your responsibility to check our Website periodically for changes. Your continued use of or access to our Website following the posting of any changes to the Agreement constitutes acceptance of those changes.
SECTION 29 – YOUR ADDITIONAL REPRESENTATIONS AND WARRANTIES
You hereby further represent and warrant: (1) that you are at least eighteen (18) years of age, or the legal age of majority in your jurisdiction, whichever is greater; (2) that you own, operate, and/or have the right to bind the business for which you are using the Website; (3) have read this Agreement and thoroughly understand and agree to the terms contained in this Agreement; and (4) that you will not resell, re-distribute, or export any product or service that you order from the Website. You further represent that WellNest has the right to rely upon all information provided to WellNest by you, and WellNest may contact you, your business, and any sub-accounts you create by email, telephone, or postal mail for any purpose, including but not limited to (i) follow-up calls, (ii) satisfaction surveys, and (iii) inquiries about any orders you placed, or considered placing, on or through the Website.
You further represent and warrant that there are no prior or pending government investigations or inquiries of, or prosecutions against you, or any business related to you, by the Federal Trade Commission, any other federal or state governmental agency, or any industry regulatory authority, anywhere in the world, nor any prior or pending private lawsuits against you. If at any time during the life of the Agreement you, or any business related to you, becomes the subject of a government investigation, inquiry, or prosecution by the Federal Trade Commission, any other federal or state governmental agency, or any industry regulatory authority anywhere in the world, or the subject of any lawsuit, you will notify WellNest of the same within twenty-four (24) hours. WellNest, at its sole discretion, may terminate the Agreement based on any investigation, proceeding, or lawsuit identified pursuant to this paragraph or otherwise discovered by WellNest without incurring any obligation or liability to you.
SECTION 30 – SEVERABILITY
If any provision of this Agreement is found by the arbitrator or (if proper) a court of competent jurisdiction to be invalid or unenforceable, the remaining provisions shall not be affected thereby and shall continue in full force and effect and such provision may be modified or severed from this Agreement to the extent necessary to make such provision enforceable and consistent with the remainder of the Agreement.
SECTION 31 – ENTIRE AGREEMENT
These Terms, the Privacy Statement, and any policies or operating rules posted by us on the Website or in respect to the Website constitutes the entire agreement and understanding between you and your business and WellNest and governs your access to and use of the Website and your ordering, purchasing, and use and/or attempted use of any service or product, and supersedes and replaces any prior or contemporaneous agreements, representations, communications, and proposals, whether oral or written, between you and WellNest. We may also, in the future, offer new services and/or features through the Website. Such new features and/or services shall also be subject to this Agreement, and any policies or operating rules posted by us on the Website. Any ambiguities in the interpretation of these Terms or the Agreement shall not be construed against the drafting party.
SECTION 32 – CONTACTING US
We encourage our customers to contact us with questions or comments about our products and services. Please feel free to do so by sending an email to firstname.lastname@example.org
If you have any questions or inquiries concerning these Terms, you may contact WellNest by email at email@example.com, or by regular mail at 3559 Mount Diablo Blvd, Lafayette , California 94549.
For additional inquiries, please feel free to send an email to the relevant address listed below.
For General Support and Inquiries: firstname.lastname@example.org
Notices to you may be made by posting a notice (or a link to a notice) on https://www.wearewellnest.com/terms and such other sites we own and control, by email, or by regular mail, at WellNest’s discretion.