Wellbeats, Inc. Distributor Terms

Wellbeats, Inc.

Distributor Terms and Conditions

By using any of the WELLBEATS™ products, services or content, you agree to these Terms and Conditions, as well as any Exhibits to these Terms and Conditions (“Terms”).
CONTENT LICENSE. In connection with the services and products provided to you by EXOS Works, Inc. (the “Distributor”), Wellbeats, Inc. (“WELLBEATS”) grants to you a limited, non-exclusive, non-transferrable license to access its proprietary WELLBEATS™ software, fitness video content and any other content provided as described in your Order Form with Distributor (the “Content Services”). Additional fitness video packages, including content provided by third parties, may be available from WELLBEATS for additional license fees. If your Order Form includes user streaming to the Content Services through an application (“App”) or HTML5 portal (“Website”), you or your end users will be able to access Content Services via PC, tablet or other mobile device or smart phone, and if applicable, the kiosk (collectively “Mobile Access”). The Equipment together with the Content Services is referred to as the “System.” Only WELLBEATS-produced content or WELLBEATS-approved third-party content can be used with the System, unless otherwise approved in writing by WELLBEATS. Following the installation of the System, you will receive Content Services for the period specified on the Order Form following the installation date. If you enroll in Mobile Access to Content Services, Mobile Access may only be used by the specified end user (i.e., gym member, resident, or employee) (“User”), and may not be broadcast or otherwise used commercially.
ACCESSING CONTENT SERVICES. To access the Content Services, Equipment or mobile devices must be connected to the internet as specified by us and Equipment access to the Content Services requires an effective line bandwidth of at least 5 Mbps. Failure to maintain the specified internet connection requirements will result in your inability to access the Content Services. If you fail to maintain an internet connection, the quality and availability of the Content Services may be affected. Any suspension, interruption, or unavailability of your internet service will not reduce your fees for Content Services. You are responsible for all costs and any other charges or expenses charged by your internet service provider. WELLBEATS and Distributor reserve all rights to modify, remove or otherwise change any of the Content provided through the Content Services. Depending on the subscription level of Content Services purchased, WELLBEATS may, from time to time, update classes or packages available through the Content Services. WELLBEATS, in its sole discretion and at any time, may discontinue certain classes or third party providers of classes available through the Content Services.
PAYMENT TERMS. You must pay Distributor fees as set forth in your Order Form. You are responsible for all foreign, federal, provincial, state, municipal or other government-related taxes, unless otherwise specified in your Order Form. Upon 10 days’ written notice to you for failure to make a payment, WELLBEATS or Distributor may suspend all Content Services until payment is made. You will not be reimbursed or provided a pro-rated amount for any suspended time during the month for failure to pay for Content Services or any other lapse in Content Services. You may be charged a fee of up to $50 to reinstate Content Services after a suspension. If Distributor or WELLBEATS retains a collection agency or attorney to collect overdue payment, all reasonable collection costs, including attorney fees, are payable by you. After the initial term (as described in your invoice), WELLBEATS may increase fees for Content Services, maintenance, support services or administrative fees upon 30 days’ written notice to you. All deposits and payments for hardware are nonrefundable.
USAGE RESTRICTIONS. You shall not (and shall not authorize or permit your employees or third parties to) do any of the following: (a) translate, disassemble, decompile, decode, reverse engineer, or cause or allow discovery of the source code of the System; (b) remove, obscure, or alter the titles, copyright notices, trademarks, logos, trademark notices, patent notices or other proprietary or restricted rights, notices, affixed to or contained in the System; (c) make any claim or representation of ownership or deny or challenge its ownership of the Content Services; (d) use the System in any manner that violates any local, state, federal or international law, rule, regulation or ordinance; (e) use, copy, modify, or prepare derivative works of WELLBEATS’ software or content, or any part thereof, except as expressly authorized; or (f) disclose, demonstrate, distribute, sell, lease, sublicense, lend, give, share, transfer, assign or otherwise make all or any portion of WELLBEATS’ software or content available to any natural person, corporation, or other entity, except as expressly authorized.
CONTENT PROVIDED. WELLBEATS reserves all rights to modify, remove or otherwise change any of the Content provided through the Content Services. Depending on the level of Content Services purchased, WELLBEATS may, from time to time, update classes or packages available through the Content Services. WELLBEATS, in its sole discretion and at any time, may discontinue certain classes or third party providers of classes available through the Content Services.
TERM AND TERMINATION. After the initial license term specified on the Order Form, Content Services will automatically renew on a month-to-month basis or other term basis as agreed by the parties, unless you provide written notice of termination to Distributor 30 days in advance of the expiration of the then-current Content Services term (“Termination Date”). Upon termination, all Content Services will be removed from the Equipment and WELLBEATS will discontinue all support and other services for the System. Following termination, you may use the Equipment for non-WELLBEATS™ purposes, provided that the software and content is deleted completely and any of WELLBEATS’ trademarks are removed or obscured, as approved by WELLBEATS in writing. Content Services may be changed at anytime and will not affect the license term.
COLLECTION OF USER DATA. If you subscribe to Mobile Access for Users on your Order Form, WELLBEATS will collect certain information from the User to provide customized Content Services, including, but not limited to a User’s first name, last name, email address, user name and password (to set up a registered account for the Content Services), age, gender, fitness level, fitness goals, and through the continued use of the Mobile Access, WELLBEATS will collect information on Users’ use of Content, Services, User’s preferences, activities and log any additional information input by each User (collectively “User Data”). All information collected from Users will be collected in compliance with WELLBEATS’ Privacy Policy at www.wellbeats.com/privacy and these Terms.
TECHNOLOGY SECURITY AND BACKUP. If you subscribe to Mobile Access, all Mobile Access will be provided through a cloud-based server that has received certification at least as restrictive as ISO27001 Certification and generally monitors access and the ongoing integrity of the Mobile Access platform. All Mobile Access and collection of User Data will be transmitted with SSL encryption and all User Data will be encrypted within the Mobile Access database. When feasible, full backups of the Content Services and User Data through the Mobile Access are performed daily, with incremental backups throughout the day. Backups are transferred in real time to an offsite storage facility with SSL encryption to a third party storage provider.
USE OF USER DATA. By accessing the Content Services, each User provides to WELLBEATS and Distributor a limited license to all User Data for the sole and exclusive purpose of providing the Content Services, including a license to collect, process, store, generate, and display User Data. WELLBEATS will: (a) keep and maintain User Data in strict confidence, using such degree of care as is appropriate and consistent with its obligations as further described in these Terms and applicable law to avoid unauthorized access, use, disclosure, or loss; (b) use and disclose User Data solely and exclusively for the purpose of providing the Mobile Access and Privacy Policy, such use and disclosure being in accordance with this agreement, and applicable law; and, (c) not use, sell, rent, transfer, distribute, or otherwise disclose or make available User Data for our own purposes. The limited license extends to WELLBEATS’ use of the User Data in aggregate, non-identifiable form, to evaluate, improve, or otherwise modify the Mobile Access or Content Services. WELLBEATS uses a combination of databases to ensure that the data is not combined to constitute personal health information and that User Data cannot be extracted by a third party in its entirety.
All Equipment related to the Content Services can be purchased from our distributor or self-provided, as described on your Order Form. Delivery terms, installation and setup will be supplied by our third party providers. Installations performed by our third party providers have a 30-day warranty on the installation. All Equipment purchased from us (including the kiosk and audio / video components) is provided with the manufacturer’s warranty, if any, for repair and replacement. Once accepted by you (or its end user), any limited warranty provided with the Equipment will be non-transferrable and will be void upon transfer of ownership to a third party. Any equipment purchased through a third party will not be supported by WELLBEATS and you assume all risks associated with unapproved third party equipment. You are responsible for any and all costs associated with de-installation of the Equipment or the System.
PROPRIETARY RIGHTS. You acknowledge that WELLBEATS owns all proprietary rights and copyrights to the System and all artwork, graphics, advertising, trademarks, video feed, copyrights and names used in conjunction therewith. Nothing provided herein shall be construed as an assignment or grant by WELLBEATS of any of its proprietary rights or copyrights to you. All trademarks, trade names, designs and logos and all associated goodwill existing and arising in the future shall be and remain WELLBEATS’ property or the property of a third party WELLBEATS licensed with to provide it to you. WELLBEATS hereby grants to you a nonexclusive right to use such trademarks, trade names, designs and logos for the System used solely in connection with promotion of the System at your location(s). You shall not adopt or use any other marks that would be misleading or confusingly similar to WELLBEATS’ trademarks, trade names, designs, and logos. Your right to use these trademarks, trade names, designs and logos shall terminate immediately upon termination or expiration of the Content Services term. WELLBEATS may include advertising, including third-party advertising, in connection with the System. WELLBEATS retains all rights in data collected by and through the System.
WARRANT DISCLAIMERS. WELLBEATS AND DISTRIBUTOR DO NOT WARRANT THAT THE CONTENT SERVICES OR THE SYSTEM WILL MEET YOUR REQUIREMENTS, PROVIDE UNINTERRUPTED USE, OR OPERATE AS REQUIRED, WITHOUT DELAY, OR WITHOUT ERROR. OTHER THAN THE WARRANTIES EXPRESSLY SET FORTH IN THESE TERMS, WELLBEATS AND DISTRIBUTOR DISCLIAM ALL OTHER WARRANTIES, EXPRESS, IMPLED OR STATUTORY, INCLUDING WARRANTIES OF MERCHANTIABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
LIABILITY FOR SYSTEM. Except for gross negligence or willful misconduct by WELLBEATS or Distributor, neither WELLBEATS, Distributor, nor any of its respective affiliates or agents shall have any liability whatsoever for any damage, loss, or destruction to the System as a result of the installation, self-installation, use, inspection, maintenance, repair and removal. In the event of gross negligence or willful misconduct by WELLBEATS or Distributor, the negligent party shall pay for the repair or replacement of the damaged parts up to a maximum of the purchase price paid, as the sole remedy. When you use certain features of the System, such as online features, you may require special software, applications and/or access to the Internet. It is your sole responsibility to take appropriate precautions to protect any computer and other hardware of yours from damage to your software, files, and data as a result of any such virus or other harmful feature. You are responsible for any failure to properly update the System and Content Services. If WELLBEATS decides, in its sole discretion, to install or run virus check software on your computers, it makes no representation or warranty that the virus check software will detect or correct any or all viruses. Neither WELLBEATS nor Distributor represent, warrant, or covenant that the installation of special software or applications or access to its web portal will not cause the loss of files or disrupt the normal operations of any equipment, including but not limited to your computers. For these and other reasons, you acknowledge and understand the importance of backing up all files to another storage mechanism prior to such activities. You understand and accept the risks if you decide not to back up files.
WELLBEATS will indemnify and defend you from claims, losses or damages relating to or arising out of third-party claims that the Content Services infringe a third party’s intellectual property rights. You will indemnify and defend WELLBEATS and Distributor from claims, losses or damages relating to or arising out of your breach of these Terms, your use or misuse of the Content Services or System, the use of the System by your employees and the end users, and any misrepresentation made to end users regarding the Content Services or System.
LIMITATIONS OF LIABILITY. WELLBEATS AND DISTRIBUTOR SHALL HAVE NO LIABILITY WHATSOEVER FOR ANY DAMAGE TO OR LOSS OF ANY HARDWARE, SOFTWARE, FILES, OR DATA RESULTING FROM A VIRUS OR OTHER CAUSE. NEITHER WELLBEATS NOR DISTRIBUTOR SHALL UNDER ANY CIRCUMSTANCES OR UNDER ANY LEGAL THEORY (INCLUDING BUT NOT LIMITED TO TORT OR CONTRACT) HAVE ANY LIABILITY TO YOU OR TO ANY OTHER PERSON OR ENTITY FOR INDIRECT, INCIDENTAL, SPECIAL, TREBLE, PUNITTIVE, EXEMPLARY, OR CONSEQUENTIAL LOSSES OR DAMAGES (INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, LOSS OF EARNINGS, LOSS OF BUSINESS OPPORTUNITIES, PERSONAL INJURIES OR DEATH). WELLBEATS SHALL HAVE NO LIABILITY TO YOU OR ANY OTHER PERSON FOR DIRECT DAMAGES ARISING FROM OR RELATED TO YOUR INSTALLATION OR MAINTENANCE OF THE EQUIPMENT, DELAYS IN OPERATION OR TRANSMISSION OF THE CONTENT SERVICES, OR LOSS OF INFORMATION OR DATA. IN NO EVENT SHALL WELLBEATS AND DISTRIBUTOR (COLLECTIVELY) BE LIABLE TO YOU FOR ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT IN AN AGGREGATE AMOUNT EXCEEDING THE AMOUNTS ACTUALLY PAID TO DISTRIBUTOR BY YOU.
Sole Remedies. Your sole and exclusive remedies are as expressly set forth in these Terms or your Order Form. Certain of the above exclusions may not apply if your jurisdiction does not allow for the exclusion or limitation of implied warranties or does not allow for limitation or exclusion of incidental or consequential damages. In those jurisdictions, the liability of WELLBEATS, Distributor and their respective affiliates and agents is limited to the maximum extent permitted by law.
1. Relationship of the Parties. These Terms do not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.
2. By using the Content Services, you consent to WELLBEATS’ and Distributor’s use of your company’s name, trademark and logo to identify your company as one of WELLBEATS’ representative clients, on its website, social media pages and other electronic or printed promotional materials. You agree to only use approved WELLBEATS™ advertising materials to promote the Content Services and make no representations to end users regarding their use or access to the Content Services.
3. No Waiver. The failure or delay of WELLBEATS at any time to require performance of any provision of these Terms or to exercise any right provided for herein shall not be deemed a waiver of such provision or such right. All waivers must be in writing. Unless the written waiver contains an express statement to the contrary, no waiver by WELLBEATS of any breach of any provision of these terms or of any right provided for herein, shall be construed as a waiver of any continuing or succeeding breach of such provision, a waiver of the provision itself, or a waiver of any right under these Terms.
4. If any provision of these Terms is held by a court of competent jurisdiction from which no appeal can be or is taken to be contrary to law, or invalid for any other reason, the provision shall be modified by the court so as to accomplish the intent and objectives of the parties to the fullest extent permitted by law and the remaining provisions of these Terms shall remain in effect. If the court is not able to craft such an alternative provision, then the remainder of these Terms shall be construed in a way that most closely reflects the original intent of the parties.
5. You may not sell, assign, license or sublicense or otherwise convey in whole or in part, by operation of law or otherwise, to any third party this agreement or any rights granted under this Agreement. If you sell your System or any components, you must terminate all agreements with Distributor and may not transfer these Terms or any Order Form to a third party. Any third party using previously used components of the System must enter into a new agreement with Distributor.
6. Governing Law. These Terms as they apply to WELLBEATS shall be governed by and construed in accordance with the laws of the State of Minnesota and where applicable, the United States of America without regard to the principles of conflicts of law. In any dispute between you and WELLBEATS, you hereby consent to the jurisdiction of and venue in the Supreme Court of the State of Minnesota, State of Minnesota District Court, Hennepin County, or the United States District Court of the District of Minnesota. Any terms regarding governing law and venue with respect to Distributor are as set forth on your Order Form. Furthermore, both parties hereby consent to have any claim litigated in such court and waive any and all defenses as to jurisdiction and venue. You hereby irrevocably waive to the fullest extent permitted by law any and all rights to trial by jury in any legal proceeding arising out of or relating to these Terms or the transactions contemplated hereunder.
7. Force Majeure. WELLBEATS shall not be liable or deemed in default for any delay or failure in performance or interruption of service resulting directly or indirectly from acts of God, civil or military authority, acts of public enemy, war, riots, acts of terror, civil disturbances, insurrections, accidents, fire, explosions, earthquakes, floods, the elements or any other cause beyond its reasonable control.
8. Survival of Limitations. All representations, warranties, indemnifications, and limitations of liability shall survive termination; any other obligations or the parties hereunder shall also survive, if they relate to the period before termination or if, by their terms, they would be expected to survive such termination. All obligations to pay any amounts owned prior to the effective date of termination will survive termination.
9. The parties agree that in the event of a breach of these Terms by you, WELLBEATS and Distributor shall be entitled to injunctive relief to enforce these Terms in addition to any other remedy it might have. In the event that WELLBEATS must commence a legal action, it shall be entitled to recover from you all of its costs and expenses, including attorneys’ fees, incurred in such action.
10. Entire Agreement. These Terms, the Order Form, and any exhibits or addenda, contain the entire understanding and agreement between the parties with respect to the subject matter hereof and supersedes all previous communications, negotiations and agreements, whether oral or written between the parties with respect to such subject matter. No modification, amendment or wavier of any provision of this agreement shall be effective unless included in a written document signed by a representative duly authorized by both WELLBEATS and Distributor.

Wellbeats Distributor Terms and Conditions