WELLUP TECHNOLOGIES, INC. 

TERMS OF SERVICE 

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Last Updated August 7, 2023

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These Terms of Service (these “Terms”), together with any documents expressly incorporated herein, governs the relationship and interaction between you (the “User”, who is either a “Navigator” or “Admin”, as the case may be, “you”, or “your”) and Wellup Technologies, Inc., together with its parents, subsidiaries and affiliates (collectively, the “Company”, “we”, “us” or “our”), and your use of the Wellup Platform, a mobile application (the “Wellup Platform”)” and/or the Wellup Administrative Portal, located at admin.wellup.io (the “Administrative Portal”), in your provision of services for or on behalf of us, together with any associated services, features, and functionality, or Content (as defined below) (collectively, the “Services”) provided by or contained within the Wellup Platform and the Administrative Platform. If you are entering into these Terms on behalf of a company or other legal entity, you represent that you have the authority to bind such entity and its affiliates to the terms and conditions contained in these Terms, in which case the terms “you” or “your” shall refer to such entity and its affiliates. Throughout these Terms, the Company and the User may each be referred to, individually, as a “Party”, or collectively, as the “Parties”.

*IMPORTANT:  PLEASE READ CAREFULLY*

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BY CHECKING THE BOX TO AGREE OR CLICKING AN “I AGREE” BUTTON, WHENEVER PRESENTED, TO AGREE TO THESE TERMS, OR BY SIGNING UP, ACCESSING, OR USING THE SERVICES, YOU:

I. ACCEPT THESE TERMS AS VALID AND AGREE TO BE LEGALLY BOUND BY THE TERMS AND CONDITIONS SET FORTH HEREIN;

II. REPRESENT AND WARRANT THAT YOU ARE AT LEAST EIGHTEEN (18) YEARS OF AGE; AND 

III. IF YOU ARE ENTERING INTO THE TERMS ON BEHALF OF A CORPORATION, ORGANIZATION OR OTHER LEGAL ENTITY, YOU HAVE THE RIGHT, POWER AND AUTHORITY TO ENTER INTO THE TERMS ON BEHALF OF THE CORPORATION, ORGANIZATION OR LEGAL ENTITY AND BIND IT TO THE TERMS SET FORTH HEREIN.

THESE TERMS MAY BE AMENDED BY THE COMPANY, IN WHOLE OR IN PART, AT ANY TIME AND IN THE COMPANY’S SOLE DISCRETION, WITH OR WITHOUT ANY NOTICE TO YOU. THE LATEST VERSION OF THESE TERMS, AS POSTED ON THE COMPANY’S SERVICES, SHALL BE THE VERSION APPLICABLE TO YOU, ON A GOING-FORWARD BASIS, EACH TIME YOU USE THE SERVICES.

THESE TERMS CONTAIN DISCLAIMERS OF WARRANTIES AND LIMITATIONS OF LIABILITY. THE PROVISIONS BELOW FORM THE ESSENTIAL BASIS OF OUR AGREEMENT.

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IF YOU DO NOT AGREE TO THESE TERMS, THEN DO NOT CHECK ANY “I AGREE” BOX OR CLICK ANY “I AGREE” BUTTON TO AGREE TO THESE TERMS, OR SIGN UP, ACCESS OR USE THE SERVICES. 

ARBITRATION NOTICE FOR USERS IN THE UNITED STATES OF AMERICA:  THESE TERMS CONTAIN AN ARBITRATION CLAUSE AND A WAIVER OF RIGHTS TO BRING A CLASS ACTION SUIT AGAINST US. EXCEPT FOR CERTAIN TYPES OF DISPUTES MENTIONED IN THAT ARBITRATION CLAUSE, YOU AND THE COMPANY AGREE THAT DISPUTES BETWEEN US WILL BE RESOLVED BY MANDATORY BINDING ARBITRATION, AND YOU AND THE COMPANY WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS-ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.

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CHANGES TO THESE TERMS 

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We reserve the exclusive right to make changes to these Terms, at any time and from time to time.  Your continued access to and use of the Services constitutes your agreement to be bound by, and your acceptance of, these Terms, as they are posted at such time. You acknowledge and agree that you accept these Terms (and any amendments thereto) each time you visit the Services. Therefore, we encourage you to review these Terms regularly. 

If, within thirty (30) days of us posting changes or amendments to these Terms, you decide that you do not agree to the updated terms, you may withdraw your acceptance to the amended terms by providing us with written notice of withdrawal of your acceptance via the methods set forth in the “Contact Us” Section herein. Upon providing us with notice of your acceptance withdrawal, you are no longer authorized to access or use the Services, and you must not do so.

1. Overview of Company Services. 

(a) The Wellup Platform focuses on the social determinants of health (“SDOH”), which allows for and/or assists with the provision of associated social and healthcare services and solutions as it relates to a multitude of use-cases, including, but not limited to, social services and minimizing medical care needed by high-risk patients. Users, who are “Navigators”, are provided access to the Wellup Platform by a Wellup Administrator, termed “Admin”, whereby the Navigator provides certain social and healthcare services to assigned persons, subjects, or patients (collectively, the “Subjects”) and inputs such associated data and information collected from or provided by the Subjects into the Wellup Platform. 

(b) The Administrative Portal is used by the Admins in order to perform certain back-end management functions and contains certain administrative management tools, in order to assign Navigators to certain Subjects for such Navigator’s performance of certain services with respect to such assigned Subjects as well as to ensure that such services are performed and completed by the Navigator as required. 

2. Your Use of the Website.  

(a) The Company provides you with access to and use of the Services subject to your compliance with these Terms. No materials from the Services may be copied, reproduced, republished, uploaded, posted, transmitted or distributed in any way, except as specifically permitted via the Services. The Services, including all of its information and contents, such as text, data fields, forms, data (including Subject’s data), files (including Subject’s files), wallpaper, icons, characters, images, photographs (including photographs related to a certain Subject), graphics, messages, object code, source code, and HTML code used to generate the pages (collectively, the “Content”), is the Company’s property and is protected by trademark and/or copyright under the laws of the United States of America and/or foreign laws. 

(b) We grant you a personal, revocable, non-exclusive, non-transferable, limited license to access the Services and to use the information and services contained therein, which you have been formally granted access to, solely for the purposes of your performance, as either a Navigator or Admin, of such services and duties and privileges assigned to you in connection with such role. We may also impose rules for and limits on your use of the Services or restrict your access to part, or all, of the Services, without notice. We have the right to change such rules and/or limitations at any time and from time to time, in our sole discretion. 

3. Account.

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3.1 Account Registration. 

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(a) To obtain access to the Administrative Portal, Admins must provide all information we reasonably request to establish, register and confirm their Admin account (an “Admin Account”). We may offer to you the ability to create and manage your Admin Account online, via the Administrative Portal; in which case you will:  (i) create a unique password; (ii) provide complete and accurate information; (iii) promptly update any information you have provided to us so that the information is complete and accurate at all times; (iv) maintain the security of your Admin Account by protecting your password from unauthorized access or use; (v) promptly notify us if you discover or suspect any unauthorized access or use of your Admin Account or any security breaches related to your Admin Account; and (vi) be responsible for all activities that occur under your Admin Account.

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(b) To obtain access to the Wellup Platform, Navigators will be invited to gain access by an Admin and must provide all information we reasonably request to establish, register and confirm their Navigator account (a “Navigator Account”). We may offer to you the ability to create and manage your Navigator Account online, via the Wellup Platform; in which case you will:  (i) create a unique password; (ii) provide complete and accurate information; (iii) promptly update any information you have provided to us so that the information is complete and accurate at all times; (iv) maintain the security of your Navigator Account by protecting your password from unauthorized access or use; (v) promptly notify us if you discover or suspect any unauthorized access or use of your Navigator Account or any security breaches related to your Navigator Account; and (vi) be responsible for all activities that occur under your Navigator Account.

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(c) Any Admin Account and any Navigator Account are collectively referred to herein as an “Account”.

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3.2 Account Information. As part of your registration, in order to gain access to or be provided with access to either the Wellup Platform or Administrative Portal, as the case may be, we may require you to provide us with your full name, phone number, physical address, e-mail address, photo, and a copy of your driver’s license or equivalent photo identification card. In addition, we may require you to provide or validate other information about yourself in the future, if we have a reasonable need for the information in order to allow for your continued access to the Services. We have the right to refuse your registration or suspend or terminate your use of the Services if you fail to provide the requested information and to keep it current, complete, truthful and accurate at all times, or if we deem such information provided not to be acceptable for your access to or continued access to the Services, in our sole discretion.  

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3.3 Account Responsibility. You are responsible for keeping your Account and your password secure. You agree to notify us immediately if you become aware of any unauthorized access to or use of your Account, username, or password or any other breach of security. Except to the extent that we are at fault, you are responsible for all activity occurring under your Account. You should use particular caution when accessing your Account so as not to provide third-parties with your Account credentials. We will not be liable for any loss that you incur as a result of someone else accessing and using your Account, either with or without your knowledge, except to the extent of our wrongful acts.

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3.4 Number of Accounts. You agree that you will not create more than one Account or create an Account for anyone other than yourself.

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3.5 Access and Devices. You are responsible for obtaining the access necessary to use the Services, which may include network access. Your mobile network’s data and messaging rates and fees may apply if you access or use the Services from your device. You are responsible for acquiring and updating compatible hardware or devices necessary to access and use the Services and any updates thereto. We do not guarantee that the Services, or any portion thereof, will function on any particular hardware or devices. In addition, the Services may be subject to malfunctions and delays inherent in the use of the Internet and electronic communications.

4. Prohibited Uses of the Services.   

(a) You agree that you will not upload to, distribute, or otherwise publish through the Services any content, information, or other material that (i) violates or infringes the copyrights, patents, trademarks, service marks, trade secrets, or other proprietary rights of any person; (ii) is libelous, threatening, defamatory, obscene, indecent, pornographic, or could give rise to any civil or criminal liability under U.S. or international law; or (iii) includes any bugs, viruses, worms, trap doors, trojan horses or other harmful code or properties.

(b) You agree not to access or use the Services in an unlawful way or for an unlawful or illegitimate purpose or in any manner that contravenes these Terms. For avoidance of doubt, you should only utilize the Services in order to perform or provide the requisite services with respect to a Subject or as instructed by the Company, from time to time, such as the case for an Admin in performing such administrative duties assigned by the Company. You further agree that you are solely responsible for your conduct while accessing or using the Services, and you agree that you will not do any of the following in connection with the Services or its other users:

(i) Use our Services other than for its intended purposes and for such purposes as are attendant to the performance of your duties, or in any manner that could interfere with, disrupt, negatively affect or inhibit other users from accessing or using the services or that could damage, disable, overburden or impair the functioning of our Services in any manner;

(ii) Share any information, data, photographs, materials, documents, or the like, which is inputted into the Services or found on the Services with any third-party, unless specifically authorized by the Company; 

(iii) Violate, in any way, any applicable Federal, State, local, or international law or regulation;

(iv) Impersonate any person or entity, or otherwise misrepresent your affiliation with a person or entity;

(v) Copy, reproduce, distribute, publicly perform or publicly display all or portions of our Services, except as expressly permitted by us or our licensors;

(vi) Modify our Services, remove any proprietary rights notices or markings, or otherwise make any derivative works based on our Website;

(vii) Reverse engineer any aspect of our Services or do anything that might discover source code or bypass or circumvent measures employed to prevent or limit access to any part of our Ser vices;

(viii) Use any data mining, robots, or similar data gathering or extraction methods designed to scrape or extract data from our Services;

(ix) Develop or use any applications that interact with our Services without our prior written consent;

(x) Use our Services for any illegal or unauthorized purpose, or engage in, encourage or promote any illegal activity that violates these Terms; 

(xi) Introduce any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful;

(xii) Attempt to gain unauthorized access to, interfere with, damage, or disrupt any parts of the Services, the server on which the Services are stored, or any server, computer, or database connected to the Services;

(xiii) Attack the Services via a denial-of-service attack or a distributed denial-of-service attack; or

(xiv) Circumvent or attempt to circumvent any filtering, security measures or other features that we may, from time to time, adopt to protect our Services, other users or third-parties.

(c) We reserve the right, at all times, to monitor such use, and to review, retain, and disclose any information as necessary to ensure compliance with these Terms, and to satisfy or cooperate with any applicable law, regulation, legal process, or governmental request.

5. Intellectual Property. 

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5.1 Generally. You agree that, as between you and us, we (and our licensors and partners, where applicable) own all right, title and interest, including all related Intellectual Property (as defined below) rights, in and to the Services, all proprietary technology owned or used by us, or made available to you by us, and all modifications, enhancements and improvements to any of the foregoing. We hereby reserve all rights, worldwide, which are not specifically granted to you in these Terms, and you agree that you will not make any use of any of the foregoing in any manner or for any purpose whatsoever except as expressly permitted by these Terms. All names, logos, other product and service names, trademarks, service marks and logos associated with us or the Services are trademarks or service marks of ours or of third-parties, and no right or license is granted to you to use them for any purpose whatsoever. This Section does not limit any rights or remedies we may have under any applicable laws, rules and regulations. As used in these Terms, “Intellectual Property” means any and all of the following arising pursuant to the laws of any jurisdiction throughout the World:  (a) trademarks, service marks, trade names, and similar indicia of source of origin, all registrations and applications for registration thereof, and the goodwill connected with the use of and symbolized by the foregoing; (b) copyrights and all registrations and applications for registration thereof; (c) trade secrets and know-how; (d) patents and patent applications; (e) internet domain name registrations; and (f) other intellectual property and related proprietary rights.

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5.2 Feedback. You may voluntarily post, submit or otherwise communicate to us any questions, inquiries, comments, suggestions, ideas, or other information or materials regarding our Services (collectively, the “Feedback”). You understand that we may use such Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you, including, without limitation, to develop, copy, publish or improve the Feedback in our sole discretion. You understand that we may treat Feedback as non-confidential.

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5.3 Copyright Policy. 

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(a) We honor copyright laws, including the Digital Millennium Copyright Act (17 U.S.C. § 512) (the “DMCA”). We therefore take reasonable steps to expeditiously remove from our Services any infringing material that it becomes aware of.

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(b) We make it easy for you to report suspected copyright infringement. If you believe that anything on the Services infringes a copyright that you own or control, please report it by filing a notice with our designated agent:

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Wellup Technologies, Inc.
Attn: Copyright Agent
12300 SW 130^th Street, #7 

Miami, Florida 33186
e-mail: hi@wellup.io

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(c) If you file a notice with our designated agent, the notice must comply with the requirements set forth at 17 U.S.C. § 512(c)(3). That means the notice must:

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(i) Contain the physical or electronic signature of a person authorized to act on behalf of the copyright owner;

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(ii) Identify the copyrighted work claimed to have been infringed;

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(iii) Identify the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed, or access to which is to be disabled, and information reasonably sufficient to let us locate the material;

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(iv) Provide your contact information, including your address, telephone number, and an e-mail address;

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(v) Provide a personal statement that you have a good-faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and

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(vi) Provide a statement that the information in the notification is accurate and, under penalty of perjury, that you are authorized to act on behalf of the copyright owner.

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6. Third-Party Websites or Resources. The Services may include or provide links to third-party websites or resources (“Third-Party Websites”), or otherwise display, include, or make available content, data, information, services, applications, or materials from third-parties (“Third-Party Materials”). When you click on a link to, or access and use, a Third-Party Website, though we may not warn you that you have left our Services, please be aware that you are subject to the terms and conditions (including privacy policy(ies)) of another website or destination. Such Third-Party Websites and Third-Party Materials are not under the control of the Company. 

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7. Electronic Communications. When you are provided access to the Services and establish either a Navigator Account or Admin Account, you are agreeing to, and thus consent to, receive electronic communication from the Company, whether or not you are prompted to explicitly elect to receive such electronic communication. The Company will communicate with you in a variety of ways such as e-mail, messaging through the Services, push notifications, text or by posting notices and messages on the Services. 

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8. User Interactions. Our Services may allow for Users, whether Navigators or Admins, to interact with one another. You are solely responsible for your interactions with other Users of the Services. The Company makes no representations or warranties as to the conduct of Users and shall not be, in any way, liable for any conduct of any User. You agree to take reasonable precautions in all interactions with other Users. You should not provide your financial information (for example, your credit card or bank account information) to other Users. As such, you hereby release the Company, its affiliates, officers, managers, owners, employees, agents, contractors, representatives, our third-party partners or suppliers, and successor or assigns from any and all claims, demands, damages (actual, consequential, nominal, punitive, or otherwise), equitable relief, and any other legal, equitable, and administrative remedy, of every kind and nature, whether known or unknown, suspected or unsuspected, disclosed or undisclosed, past, present, or future, arising out of or in any way connected with your interaction with other Users.

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8.1 User Content. You are solely responsible for User Content (as defined below) that you transmit, publish or display via the Services, including to other Users through any media form. “User Content” means any text, information, messages, photos, comments, profiles, data, materials, links, files, images, or other content you provide to other Users while using the Services 

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8.2 Moderating User Content. You understand and agree that the Company has the right to moderate, review and delete any User Content, in each case in whole or in part, that in the sole judgment of the Company, violates these Terms, might be offensive or illegal, or that might violate the rights or safety of other Users or Subjects.

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8.3 Prohibited User Content. The following is a partial list of the kind of User Content that is illegal or prohibited on, via, or through the Services. The Company reserves the right to investigate and take appropriate legal action, in its sole discretion, against anyone who violates this provision, including, without limitation, removing the offending communication from the Services and terminating the User’s access to the Services. It includes, but is not limited to, User Content that: 

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(i) Is patently offensive, such as content that promotes racism, bigotry, hatred or physical harm of any kind against any group or individual or which harasses or advocates harassment of another person; 

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(ii) Involves the transmission of “junk mail”, “chain letters,” or unsolicited mass mailing or “spamming”; 

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(iii) Promotes information that you know is false, misleading or promotes illegal activities or conduct that is abusive, threatening, obscene, profane, offensive, sexually-oriented, racially offensive, defamatory or libelous; 

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(iv) Promotes an illegal or unauthorized copy of another person’s copyrighted work, such as providing pirated computer programs or links to them, providing information to circumvent manufacture-installed copy-protect devices, or providing pirated images, audio or video, or links to pirated images, audio or video files; 

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(v) Contains restricted or password-only access pages, or hidden pages or images (those not linked to or from another accessible page) which are not associated with the User’s provision of such User’s assigned duties; 

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(vi) Provides material that exploits people under the age of eighteen (18) in a sexual or violent manner, or solicits personal information from anyone under the age of 18; 

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(vii) Provides instructional information about illegal activities such as making or buying illegal weapons, violating someone’s privacy, or providing or creating computer viruses; 

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(viii) Solicits passwords or personal identifying information for commercial or unlawful purposes from other Users; or

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(ix) Engages in commercial activities and/or sales without our prior written consent such as contests, sweepstakes, barter, advertising, and pyramid schemes. 

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9. Confidentiality. You agree to keep all information related to the Subjects, whether provided to you by a Subject themselves and/or accessible via the Services, confidential and will not disclose, divulge, or use such confidential information unless specifically authorized under these Terms or otherwise by the Company, in writing. 

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10. Termination. We may immediately, without prior notice, suspend or terminate your use of and access to the Services or terminate these Terms as they apply to you, at our sole discretion, for any reason, whether with or without cause or warning, and without liability.

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11. DISCLAIMER OR WARRANTIES. YOU UNDERSTAND AND AGREE THAT THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND THAT THE COMPANY EXPRESSLY DISCLAIMS ANY WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED. IN ADDITION, THE COMPANY MAKES NO WARRANTY OR REPRESENTATION AND DISCLAIMS ALL RESPONSIBILITY FOR WHETHER THE SERVICES:  (I) WILL MEET YOUR REQUIREMENTS; (II) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; OR (III) WILL BE ACCURATE, RELIABLE, COMPLETE, LEGAL, OR SAFE. THE COMPANY DISCLAIMS ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. THE COMPANY WILL NOT BE LIABLE FOR ANY LOSS OF ANY KIND FROM ANY ACTION TAKEN IN RELIANCE ON THE CONTENT CONTAINED ON THE SERVICES. WHILE THE COMPANY ATTEMPTS TO MAKE YOUR ACCESS TO AND USE OF THE SERVICES SAFE, THE COMPANY CANNOT AND DOES NOT REPRESENT OR WARRANT THAT THE SERVICES, CONTENT, ANY THIRD-PARTY WEBSITE, OR ANY OTHER INTERACTIONS YOU MAY HAVE WITH THE SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. WE CANNOT GUARANTEE THE SECURITY OF ANY DATA THAT YOU DISCLOSE ONLINE. NO ADVICE OR INFORMATION, WHETHER ORAL OR OBTAINED FROM THE COMPANY OR THROUGH THE SERVICES, WILL CREATE ANY WARRANTY OR REPRESENTATION NOT EXPRESSLY MADE HEREIN. YOU ACCEPT THE INHERENT SECURITY RISKS OF PROVIDING INFORMATION OVER THE INTERNET AND WILL NOT HOLD THE COMPANY RESPONSIBLE FOR ANY BREACH OF SECURITY.

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12. LIMITATION OF LIABILITY. YOU ACKNOWLEDGE AND AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE SERVICES REMAINS WITH YOU. NEITHER THE COMPANY NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICES SHALL BE LIABLE TO YOU FOR ANY COMPENSATORY, CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS, ARISING OUT OF OR IN CONNECTION WITH:  (I) THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES; (II) THE CONDUCT OF YOU OR ANYONE ELSE IN CONNECTION WITH THE USE OF THE SERVICES; (III) DELAYS OR DISRUPTIONS TO THE SERVICES; (IV) VIRUSES OR OTHER MALICIOUS SOFTWARE OBTAINED BY ACCESSING THE SERVICES OR THOSE OF ANY THIRD-PARTY WEBSITE, MATERIALS, SERVICES, OR TOOLS LINKED TO THE SERVICES; (V) GLITCHES, BUGS, ERRORS, OR INACCURACIES OF ANY KIND ON THE SERVICES; OR (VI) DAMAGE TO YOUR HARDWARE DEVICE FROM THE USE OF THE SERVICES, IN EACH CASE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT COMPANY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. YOU SPECIFICALLY ACKNOWLEDGE THAT THE COMPANY SHALL NOT BE LIABLE TO YOU FOR YOUR ACTIONS OR COMMUNICATIONS TRANSMITTED THROUGH THE SERVICES. THE COMPANY SHALL NOT BE LIABLE FOR ANY BREACH OF SECURITY ASSOCIATED WITH THE TRANSMISSION OF INFORMATION THROUGH THE SERVICES OR ANY LINKED THIRD-PARTY WEBSITES.

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SOME JURISDICTIONS DO NOT ALLOW CERTAIN EXCLUSIONS OF WARRANTIES OR LIMITATIONS ON DAMAGES, SO SOME OF THESE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU; IN SUCH JURISDICTIONS, THE AGGREGATE LIABILITY OF THE COMPANY SHALL BE LIMITED IN ACCORDANCE WITH THESE TERMS TO THE FULLEST EXTENT PERMITTED BY LAW.

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WITHOUT LIMITING ANY OF THE FOREGOING, IN NO EVENT SHALL THE COMPANY’S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS EXCEED ONE HUNDRED DOLLARS ($100.00). THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN YOU AND THE COMPANY.

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13. Indemnity. You agree to defend, indemnify, and hold harmless the Company and its officers, managers, employees agents, representatives, licensors, suppliers, third-party partners, and service providers from and against all claims, losses, liabilities, damages, costs, and expenses (including reasonable attorneys’ fees) arising out of or in any way connected with any violation of these Terms by you. We reserve the right to assume all or any part of the defense of any such claims and negotiations for settlement, and you agree to fully cooperate with us in doing so.

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14. Arbitration, Class-Action Waiver, and Jury Waiver. PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT. This Section is intended to be interpreted broadly and governs any and all disputes between us, including, but not limited to, claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory; claims that arose before these Terms became applicable or any prior agreement; and claims that may arise after the expiration or other termination of these Terms. The only disputes excluded from this broad prohibition are the litigation of certain intellectual property and small claims court matters, as provided below. By agreeing to these Terms, you agree to resolve any and all disputes with us as follows.

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14.1 Initial Dispute Resolution. Most disputes can be resolved without resort to litigation. You can reach our support department at hi@wellup.io, and except for intellectual property and small claims court matters, the Parties agree to use their best efforts to settle any dispute, claim, question, or disagreement directly through consultation with our support department, and good faith negotiations shall be a condition to either Party initiating a lawsuit or arbitration.

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14.2 Binding Arbitration. If the Parties do not reach an agreed-upon solution within a period of thirty (30) days from the time informal dispute resolution is initiated under the Initial Dispute Resolution provision above, then either Party may initiate binding arbitration as the sole means to resolve claims, subject to the terms set forth below. Specifically, all claims arising out of or relating to these Terms or previous versions of these Terms (including the Terms’ or the Privacy Policy’s formation, performance, and breach), the Parties’ relationship with each other, and/or your use of the Services shall be finally settled by binding arbitration, as described below.

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Where the relief sought is Ten Thousand Dollars ($10,000), or less, and you do not wish to bring the claim in small claims court, then the arbitration will be conducted online by an online arbitration provider of our choosing in accordance with their applicable commercial arbitration rules and procedures effective at the time a claim is made. Currently, to start, you may initiate arbitration proceedings on the Fair Claims website. You are responsible for your own attorneys’ fees, unless the arbitration rules and/or applicable law provide otherwise.

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Any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of these Terms to arbitrate, shall be determined by arbitration in Miami, Florida. Where the relief sought is between $10,001 and $250,000, the arbitration shall be before a single arbitrator in accordance with the JAMS Streamlined Arbitration Procedure Rules. Where the relief sought exceeds $250,000, arbitration shall be before a panel of three (3) arbitrators in accordance with the JAMS Comprehensive Arbitration Rules and Procedures. To start an arbitration with JAMS, you must do the following:  (a) write a Demand for Arbitration that includes a description of the claim and the amount of damages you seek to recover (you may find a copy of a Demand for Arbitration at www.jamsadr.com; (b) send three copies of the Demand for Arbitration, plus the appropriate filing fee, to JAMS, 600 Brickell Avenue, Unit 2600, Miami, Florida 33131; and (c) send one copy of the Demand for Arbitration to us at 12300 SW 130^th Street, #7, Miami, Florida 33186, ATTN: Legal. You will be required to pay $250.00 to initiate an arbitration against us. If the arbitrator finds the arbitration to be non-frivolous, we will pay all other fees invoiced by JAMS, including filing fees and arbitrator and hearing expenses. You are responsible for your own attorneys’ fees unless the arbitration rules and/or applicable law provide otherwise.

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The arbitrator(s), and not any Federal, State, or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability, or formation of an agreement under the Terms or the Privacy Policy, including, but not limited to, any claim that all or any part of the Terms or the Privacy Policy is void or voidable, whether a claim is subject to arbitration, or the question of waiver by litigation conduct. The arbitrator(s) shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitral award shall be written and shall be binding on the Parties and may be entered as a judgment in any court of competent jurisdiction.

The Parties understand that, absent this mandatory arbitration provision, they would have the right to sue in court and have a jury trial. The Parties further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court.

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The Parties further agree to submit to the personal jurisdiction of any Federal or State court sitting in Miami-Dade County, Florida in order to compel arbitration, to stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.

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14.3 Small Claims. As an alternative, you may bring your Claim in your local “small claims” court, if permitted by that small claims court’s rules and if within such court’s jurisdiction, unless such action is transferred, removed or appealed to a different court. You may bring Claims only on your own behalf. Neither you nor Company will participate in a class action or class-wide arbitration for any Claims covered by these Terms to arbitrate.

14.4 Class Action Waiver. YOU AGREE THAT YOU ARE HEREBY GIVING UP YOUR RIGHT TO PARTICIPATE AS A CLASS REPRESENTATIVE OR CLASS MEMBER ON ANY CLASS CLAIM YOU MAY HAVE AGAINST THE COMPANY INCLUDING ANY RIGHT TO CLASS ARBITRATION OR ANY CONSOLIDATION OF INDIVIDUAL ARBITRATIONS. 

14.5 Arbitration Opt-Out. You have the right to opt out and not be bound by the arbitration and class action waiver provisions set forth above by sending a written notice of your decision to opt-out to at hi@wellup.io with the subject line, “ARBITRATION AND CLASS ACTION WAIVER OPT-OUT”. The notice must be sent within thirty (30) days of your first use of or access to the Services; otherwise, you shall be bound to arbitrate disputes in accordance with the terms of those paragraphs. If you opt-out of these arbitration provisions, we also will not be bound by them.

15. Privacy Policy. Please refer to our Privacy Policy, as updated from time to time, for information about how we collect, use, and share your information, which is incorporated herein by reference. By using and providing information to or through the Services, you consent to all actions taken by us with respect to your information in compliance with the Privacy Policy.

16. Contact Us. All notices, feedback, comments, requests for technical support and other communications relating to the Services should be directed to: hi@wellup.io.

17. Miscellaneous.

17.1 Entire Agreement. The Terms constitute the entire agreement of the Parties and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral. 

17.2 Governing Law. The interpretation and enforcement of these Terms, and any dispute related to these Terms or the Website, shall be governed by and construed and enforced in accordance with the laws of State of Florida (US), without regard to conflict of law rules or principles (whether of Florida or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. You agree that we may initiate a proceeding related to the enforcement or validity of our intellectual property rights in any court having jurisdiction. With respect to any other proceeding that is not subject to arbitration under these Terms, the Federal and State courts sitting in Miami-Dade County, Florida will have exclusive jurisdiction. You waive any objection to venue in any such courts.

17.3 No Waiver. No waiver under the Terms is effective unless it is in writing, identified as a waiver to the Terms and signed by an authorized representative of the Party waiving its rights. Any waiver authorized on one occasion is effective only in that instance and only for the purpose stated and does not operate as a waiver on any future occasion.

17.4 Severability. If any term or provision of the Terms is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability does not affect any other term or provision of the Terms. 

17.5 Successors and Assigns. The Terms are binding on and inures to the benefit of the Parties and their respective permitted successors and permitted assigns.

17.6 Assignment and Delegation.  You may not assign any of your rights or delegate any of your obligations under the Terms without the prior written consent of Company. The Company may assign its obligations under the Terms, in whole or in part, to one or more of its subsidiaries engaged in the business.  

17.7 No Third-Party Beneficiaries. The Terms do not and are not intended to confer any rights or remedies upon any person or entity other than you.

17.8 Headings. The headings in the Terms are for reference only and do not affect the interpretation of the Terms.

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[End of Terms of Service]

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