Terms and Conditions
Effective March 24, 2019
Please read these Terms of Service carefully before accessing, using, or buying any products from the www.getwelly.com website or any other website owned or controlled by Welly (the “Site”). By accessing or using any part of the Site, you agree to be bound by these Terms of Service. By visiting our Site and/ or purchasing something from us, you agree to be bound by these terms and conditions (these “Terms of Service”), including any additional terms and conditions and policies referenced herein and/or available by hyperlink. These Terms of Service apply to all users of the Site. If you do not agree to all the terms and conditions set forth in these Terms of Service, then you may not access or use the Site.
PLEASE READ THESE TERMS OF SERVICE CAREFULLY, AS THEY CONTAIN AN AGREEMENT TO ARBITRATE AND OTHER IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES, AND OBLIGATIONS. THE AGREEMENT TO ARBITRATE REQUIRES (WITH LIMITED EXCEPTION) THAT YOU SUBMIT CLAIMS YOU HAVE AGAINST US TO BINDING AND FINAL ARBITRATION, AND FURTHER (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST WELLY ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, (2) YOU WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS, AND (3) YOU MAY NOT BE ABLE TO HAVE ANY CLAIMS YOU HAVE AGAINST US RESOLVED BY A JURY OR IN A COURT OF LAW.
Any new features or tools which are added to the Site will also be subject to the Terms of Service. You can review the most current version of the Terms of Service at any time on this page. We reserve the right to update, change or replace any part of these Terms of Service by posting updates and/or changes to our Site. If we do this, we will post the changes on this page and will indicate at the top of this page the date these Terms of Service were last revised. It is your responsibility to check this page periodically for changes. Your continued use of or access to the website following the posting of any changes constitutes acceptance of those changes.
SECTION 1 - ONLINE STORE TERMS
If you wish to purchase any product or service made available through the Site (“Purchase”), you may be asked to supply certain information relevant to your Purchase including, without limitation, your credit card number, the expiration date of your credit card, your billing address, and your shipping information. We use a third-party payment processor (the “Payment Processor”) to bill you through a payment account linked to your account on the Site . We reserve the right to change our Payment Processor at any time. The processing of payments will be subject to the terms, conditions and privacy policies of the Payment Processor, as they may be modified from time to time, in addition to these Terms of Service. We are not responsible for errors by the Payment Processor. By choosing to Purchase our products and/or services through the Site, you agree to pay us, through the Payment Processor, all charges at the prices then in effect for such products and services in accordance with the applicable payment terms and you authorize us, through the Payment Processor, to charge your chosen payment provider. You agree to pay for your Purchase using that selected payment method. We reserve the right to correct any errors or mistakes that it makes even if it has already requested or received payment. We assume no liability or responsibility for any payments you may make through the Site. If your payment fails, we (or the Payment Processor) may retain collection agencies and legal counsel to collect fees owed.
Prices for our products are subject to change without notice. We reserve the right to refuse or cancel your Purchase at any time for any reason, including but not limited to: product or service availability, errors in the description or price of the product or service, error in your order or other reasons. Our delivery to you of an email confirmation following your placement of an order does not constitute our acceptance of such order, and we reserve the right to reject such order or limit the quantity of product or service offerings under such order. We reserve the right to refuse or cancel your order if fraud or an unauthorized or illegal transaction is suspected.
[Returns/Exchanges: Only items purchased on the Welly Site can be returned to www.getwelly.com for refund or exchange. Items purchased elsewhere must be returned to their original point of purchase. Should you make an error when ordering online, Welly will gladly exchange your item for the item you intended to purchase. The returned item must be unopened and in its original saleable condition. You are responsible for the shipping and additional postage charges. Should an item be damaged while it is being shipped to you by Welly, we will provide you with a full refund or exchange. In all cases, original proof of purchase must be provided and products must be returned within 30 days of receipt for Welly to process any refund or exchange. Please telephone 1 833 BE WELLY, or email to firstname.lastname@example.org in advance of your intentions to return or exchange a product, so that a Welly staff can assist you with a smooth transaction.
You may use the Site only for your own personal and non-commercial use. Any other use is prohibited unless agreed to by us in writing in each instance. You may not use our products or services for any illegal or unauthorized purpose nor may you, in the use of the Site, violate any laws in your jurisdiction (including but not limited to copyright laws). Your right to use the Site does not include any resale or commercial use of the Site, or its contents; any collection and use of any product listings, descriptions, or prices; any derivative use of the Site or its contents; any downloading, copying, or other use of account information for the benefit of any third party; or any use of data mining, robots, or similar data gathering and extraction tools. All rights not expressly granted to you in these Terms of Service are reserved and retained by us or our licensors, suppliers, publishers, rightsholders, or other content providers. Neither the Site, nor any part thereof, may be reproduced, duplicated, copied, sold, resold, visited, or otherwise exploited for any commercial purpose without our express written consent. You may not frame or utilize framing techniques to enclose any of our trademarks, logos, or other proprietary information (including images, text, page layout, or form) without our express written consent. You may not use any meta tags or any other “hidden text” utilizing our name or trademarks without our express written consent.
SECTION 2 - GENERAL CONDITIONS
We reserve the right at any time to modify or discontinue the Site (or any part or content thereof) without notice at any time. You agree not to reproduce, duplicate, copy, sell, resell or exploit any portion of the Site, use of the Site, or access to the Site or any contact on the Site, without express written permission by us. The headings used in this agreement are included for convenience only and will not limit or otherwise affect these Terms.
SECTION 3 - ACCURACY, COMPLETENESS AND TIMELINESS OF INFORMATION
We are not responsible if information made available on this Site is not accurate, complete or current. The material on this Site is provided for general information only and should not be relied upon or used as the sole basis for making decisions without consulting primary, more accurate, more complete or more timely sources of information. Any reliance on the material on this Site is at your own risk.
This Site may contain certain historical information. Historical information, necessarily, is not current and is provided for your reference only. We reserve the right to modify the contents of this Site at any time, but we have no obligation to update any information on our Site. You agree that it is your responsibility to monitor changes to our Site.
SECTION 4 - PRODUCTS AND SERVICES
Certain products or services may be available exclusively online through the Site. These products or services may have limited quantities and are subject to return or exchange only according to our Return Policy.
We have made every effort to display as accurately as possible the colors and images of our products that appear at the store. We cannot guarantee that your computer monitor's display of any color will be accurate.
We reserve the right, but are not obligated, to limit the sales of our products or services to any person, geographic region or jurisdiction. We may exercise this right on a case-by-case basis. We reserve the right to limit the quantities of any products or services that we offer. All descriptions of products or product pricing are subject to change at any time without notice, at our sole discretion. We reserve the right to discontinue any product at any time. Any offer for any product or service made on this Site is void where prohibited.
SECTION 5 - ACCURACY OF BILLING AND ACCOUNT INFORMATION
We reserve the right to refuse any order you place with us. We may, in our sole discretion, limit or cancel quantities Purchased per person, per household or per order. These restrictions may include orders placed by or under the same customer account, the same credit card, and/or orders that use the same billing and/or shipping address. In the event that we make a change to or cancel an order, we may attempt to notify you by contacting the email and/or billing address/phone number provided at the time the order was made. We reserve the right to limit or prohibit orders that, in our sole judgment, appear to be placed by dealers, resellers or distributors.
You agree to provide current, complete and accurate purchase and account information for all purchases made at our store. You agree to promptly update your account and other information, including your email address and credit card numbers and expiration dates, so that we can complete your transactions and contact you as needed.
SECTION 6 - OPTIONAL TOOLS
We may provide you with access to third-party tools over which we neither monitor nor have any control or input. You acknowledge and agree that we provide access to such tools “as is” and “as available” without any warranties, representations or conditions of any kind and without any endorsement. We will have no liability whatsoever arising from or relating to your use of optional third-party tools. Any use by you of optional tools offered through the site is entirely at your own risk and discretion and you should ensure that you are familiar with and approve of the terms on which tools are provided by the relevant third-party provider(s).
SECTION 7 – INTELLECTUAL PROPERTY RIGHTS
Welly Content, Software and Trademarks: You acknowledge and agree that the Site may contain content or features (“Welly Content”) that are protected by copyright, patent, trademark, trade secret or other proprietary rights and laws. Except as expressly authorized by us, you agree not to modify, copy, frame, scrape, rent, lease, loan, sell, distribute or create derivative works based on the Site or the Welly Content, in whole or in part, except that the foregoing does not apply to your own User Content (as defined below) that you legally upload to the Site. In connection with your use of the Site you will not engage in or use any data mining, robots, scraping or similar data gathering or extraction methods. If you are blocked from accessing the Site (including by blocking your IP address), you agree not to implement any measures to circumvent such blocking (e.g., by masking your IP address or using a proxy IP address). Any use of the Site or the Welly Content other than as specifically authorized herein is strictly prohibited. The technology and software underlying the Site or distributed in connection therewith are the property of Welly, our affiliates and our partners (the “Software”). You agree not to copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, or otherwise transfer any right in the Software. Any rights not expressly granted herein are reserved by Welly.
The Welly name and logos are trademarks and service marks of Welly (collectively the “Welly Trademarks”). Other company, product, and service names and logos used and displayed via the Site may be trademarks or service marks of their respective owners who may or may not endorse or be affiliated with or connected to Welly. Nothing in these Terms of Service or the Site should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of Welly Trademarks displayed on the Site, without our prior written permission in each instance. All goodwill generated from the use of Welly Trademarks will inure to our exclusive benefit.
Third Party Materials: Under no circumstances will Welly be liable in any way for any content or materials of any third parties (including users), including, but not limited to, for any errors or omissions in any content, or for any loss or damage of any kind incurred as a result of the use of any such content. You acknowledge that Welly does not pre-screen content, but that Welly and its designees will have the right (but not the obligation) in their sole discretion to refuse or remove any content that is available via the Site. Without limiting the foregoing, Welly and its designees will have the right to remove any content that violates these Terms of Service or is deemed by Welly, in our sole discretion, to be otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any content, including any reliance on the accuracy, completeness, or usefulness of such content.
User Content Transmitted Through the Site: With respect to the content or other materials you upload through the Site or otherwise provide to Welly, by postal mail or otherwise, or share with other users or recipients (collectively, “User Content”), you represent and warrant that you own all right, title and interest in and to such User Content, including, without limitation, all copyrights and rights of publicity contained therein. By uploading any User Content you hereby grant and will grant Welly and its affiliated companies a nonexclusive, worldwide, royalty-free, fully paid up, transferable, sublicensable (through multiple tiers), perpetual, irrevocable license to copy, display, upload, perform, distribute, store, modify and otherwise use your User Content in connection with the operation of the Site or the promotion, advertising or marketing thereof or of any products or services in any form, medium or technology now known or later developed. You agree that your User Content will not violate any right of any third-party, including copyright, trademark, privacy, personality or other personal or proprietary right. You further agree that your User Content will not contain libelous or otherwise unlawful, abusive or obscene material, or contain any computer virus or other malware that could in any way affect the operation of the Site or any related website. You may not use a false email address, pretend to be someone other than yourself, or otherwise mislead us or third parties as to the origin of any User Content. You are solely responsible for any User Content you upload and their accuracy. We take no responsibility and assume no liability for any User Content posted by you or any third party.
We are and will be under no obligation (1) to maintain any User Content in confidence; (2) to pay compensation for any User Content; or (3) to respond to any User Content. You acknowledge and agree that Welly may preserve User Content and may also disclose User Content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process, applicable laws or government requests; (b) enforce these Terms of Service; (c) respond to claims that any content violates the rights of third parties; or (d) protect the rights, property, or personal safety of Welly, its users and the public. You understand that the technical processing and transmission of the Site, including your content, may involve (i) transmissions over various networks; and (ii) changes to conform and adapt to technical requirements of connecting networks or devices.
You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about the Site and/or Welly’s products or services (“Submissions”), provided by you to Welly are non-confidential and Welly will be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
Copyright Complaints: Welly respects the intellectual property of others, and we ask our users to do the same. If you believe that your work has been copied in a way that constitutes copyright infringement, or that your intellectual property rights have been otherwise violated, you should notify Welly of your infringement claim in accordance with the procedure set forth below.
Welly will process and investigate notices of alleged infringement and will take appropriate actions under the Digital Millennium Copyright Act (“DMCA”) and other applicable intellectual property laws with respect to any alleged or actual infringement. A notification of claimed copyright infringement should be emailed to Welly’s Copyright Agent at email@example.com (Subject line: “DMCA Takedown Request”). You may also contact us by mail or facsimile at:
Welly HQ, Suite 2800
60 S 6Th St
Minneapolis, MN 55402
To be effective, the notification must be in writing and contain the following information:
- an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
- a description of the copyrighted work or other intellectual property that you claim has been infringed;
- a description of where the material that you claim is infringing is located on the Site, with enough detail that we may find it on the Site; your address, telephone number, and email address;
- a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright or intellectual property owner, its agent, or the law;
- a statement by you, made under penalty of perjury, that the above information in your Notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
Counter-Notice: If you believe that your User Content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to upload and use the content in your User Content, you may send a written counter-notice containing the following information to the Copyright Agent:
- your physical or electronic signature;
- identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled;
- a statement that you have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content; and
- your name, address, telephone number, and email address, a statement that you consent to the jurisdiction of the federal court located within the District of Minnesota and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by the Copyright Agent, Welly will send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at our sole discretion.
Repeat Infringer Policy: In accordance with the DMCA and other applicable law, Welly has adopted a policy of terminating, in appropriate circumstances and at Welly’s sole discretion, users who are deemed to be repeat infringers. Welly may also at its sole discretion limit access to the Site and/or terminate the memberships of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
Third Party Websites: Certain content, products and services available via our Site may include materials from third parties. Third-party links on this Site may direct you to third-party websites that are not affiliated with us. We are not responsible for examining or evaluating the content or accuracy and we do not warrant and will not have any liability or responsibility for any third-party materials or websites, or for any other materials, products, or services of third-parties.
We are not liable for any harm or damages related to the purchase or use of goods, services, resources, content, or any other transactions made in connection with any third-party websites. Please review carefully the third-party's policies and practices and make sure you understand them before you engage in any transaction. Complaints, claims, concerns, or questions regarding third-party websites or products should be directed to the applicable third party.
SECTION 8 - PERSONAL INFORMATION
SECTION 9 - ERRORS, INACCURACIES AND OMISSIONS
Occasionally there may be information on our Site that contains typographical errors, inaccuracies or omissions that may relate to product descriptions, pricing, promotions, offers, product shipping charges, transit times and availability. We reserve the right to correct any errors, inaccuracies or omissions, and to change or update information or cancel orders if any information in the Site or on any related website is inaccurate at any time without prior notice (including after you have submitted your order).
We undertake no obligation to update, amend or clarify information in the Site or on any related website, including without limitation, pricing information, except as required by law. No specified update or refresh date applied in the Site or on any related website, should be taken to indicate that all information in the Site or on any related website has been modified or updated.
SECTION 10 - PROHIBITED USES
In addition to other prohibitions as set forth in the Terms of Service, you are prohibited from, directly or indirectly, using, or directing any third party to use, the Site or its content: (a) for any unlawful purpose; (b) to solicit others to perform or participate in any unlawful acts; (c) to violate any international, federal, provincial or state regulations, rules, laws, or local ordinances; (d) to infringe upon or violate our intellectual property rights or the intellectual property or privacy rights of others; (e) to harass, abuse, insult, harm, defame, slander, disparage, intimidate, or discriminate based on gender, sexual orientation, religion, ethnicity, race, age, national origin, or disability; (f) to submit false or misleading information; (g) to upload or transmit viruses or any other type of malicious code that will or may be used in any way that will affect the functionality or operation of the Site or of any related website, other websites, or the Internet; (h) to collect or track the personal information of others; (i) to spam, phish, pharm, pretext, spider, crawl, or scrape; (j) for any obscene or immoral purpose; (k) to interfere with or circumvent the security features of the Site, other websites, or the Internet; or (l) advertise or offer to sell or buy any goods or services for any business purpose that is not specifically authorized. We reserve the right to investigate and take appropriate legal action against anyone who, in our sole discretion, violates this provision, including without limitation terminating your use of the Site and/or suspending or terminating your account.
SECTION 11 - DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY
We do not guarantee, represent or warrant that your use of the SITE will be uninterrupted, timely, secure or error-free. We do not warrant that the results that may be obtained from the use of the SITE will be accurate or reliable. We do not warrant that the quality of any products, services, information, or other material purchased or obtained by you will meet your expectations, or that any errors in the SITE will be corrected.
You expressly agree that your use of, or inability to use, the SITE is at your sole risk. The SITE and all products and services delivered to you through the SITE are (except as expressly stated by us) provided “as is” and “as available” for your use, without any representation, warranties or conditions of any kind, either express or implied, including all implied warranties or conditions of merchantability, merchantable quality, fitness for a particular purpose, durability, title, and non-infringement.
In no case will Welly, our directors, officers, employees, affiliates, agents, contractors, interns, suppliers, service providers or licensors be liable for any injury, loss, claim, or any direct, indirect, incidental, punitive, special, or consequential damages of any kind, including, without limitation lost profits, lost revenue, lost savings, loss of data, replacement costs, or any similar damages, whether based in contract, tort (including negligence), strict liability or otherwise, arising from your use of the SITE or any products or services procured using the SITE, or for any other claim related in any way to your use of the SITE or any product or service, including, but not limited to, any errors or omissions in any content, or any loss or damage of any kind incurred as a result of the use of the SITE or any content (or product) posted, transmitted, or otherwise made available via the SITE, even if advised of their possibility.
SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OR EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU OR BE ENFORCEABLE WITH RESPECT TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SITE OR WITH THESE TERMS OF SERVICE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SITE.
IF YOU ARE A USER FROM NEW JERSEY, THIS SECTION 11 AND SECTION 12 BELOW IS INTENDED TO BE ONLY AS BROAD AS IS PERMITTED UNDER THE LAWS OF THE STATE OF NEW JERSEY. IF ANY PORTION OF THIS SECTION OR SECTION 12 BELOW IS HELD TO BE INVALID UNDER THE LAWS OF THE STATE OF NEW JERSEY, THE INVALIDITY OF SUCH PORTION SHALL NOT AFFECT THE VALIDITY OF THE REMAINING PORTIONS OF THIS SECTION, SECTION 12 OR ANY OTHER SECTION.
SECTION 12 - INDEMNIFICATION
You agree to indemnify, defend and hold harmless Welly and our parent, subsidiaries, affiliates, partners, officers, directors, agents, contractors, licensors, service providers, subcontractors, suppliers, interns and employees (collectively, “Indemnitees”), harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of your breach of these Terms of Service or the terms and policies incorporated by reference herein, or your violation of any law or the rights of a third party. Notwithstanding the foregoing, you will have no obligation to indemnify or hold harmless any Indemnitee from or against any liability, losses, damages or expenses incurred as a result of any action or inaction of such Indemnitee. If you are a California resident, you waive California Civil Code Section 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.” If you are a resident of another jurisdiction, you waive any comparable statute or doctrine.
SECTION 13 – DISPUTE RESOLUTION BY BINDING ARBITRATION
PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR RIGHTS.
a. Agreement to Arbitrate
This Dispute Resolution by Binding Arbitration section is referred to in this Terms of Service as the “Arbitration Agreement.” You agree that any and all disputes or claims that have arisen or may arise between you and Welly, whether arising out of or relating to this Terms of Service (including any alleged breach thereof), the Site, any advertising, any aspect of the relationship or transactions between us, shall be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement, except that you may assert individual claims in small claims court, if ya. our claims qualify. Further, this Arbitration Agreement does not preclude you from bringing issues to the attention of federal, state, or local agencies, and such agencies can, if the law allows, seek relief against us on your behalf. You agree that, by entering into this Terms of Service, you and Welly are each waiving the right to a trial by jury or to participate in a class action. Your rights will be determined by a neutral arbitrator, not a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.
b. Prohibition of Class and Representative Actions and Non-Individualized Relief
YOU AND WELLY AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND WELLY AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S), EXCEPT THAT YOU MAY PURSUE A CLAIM FOR AND THE ARBITRATOR MAY AWARD PUBLIC INJUNCTIVE RELIEF UNDER APPLICABLE LAW TO THE EXTENT REQUIRED FOR THE ENFORCEABILITY OF THIS PROVISION.
c. Pre-Arbitration Dispute Resolution
Welly is always interested in resolving disputes amicably and efficiently, and most customer concerns can be resolved quickly and to the customer’s satisfaction by emailing customer support at firstname.lastname@example.org. If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to Welly should be sent to Welly HQ, Suite 2800 60 S 6th St Minneapolis, MN 55402 (“Notice Address”). The Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If Welly and you do not resolve the claim within sixty (60) calendar days after the Notice is received, you or Welly may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Welly or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or Welly is entitled.
d. Arbitration Procedures
Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association’s (“AAA”) rules and procedures, including the AAA’s Consumer Arbitration Rules (collectively, the “AAA Rules”), as modified by this Arbitration Agreement. For information on the AAA, please visit its website, http://www.adr.org. Information about the AAA Rules and fees for consumer disputes can be found at the AAA’s consumer arbitration page, https://www.adr.org/consumer. If there is any inconsistency between any term of the AAA Rules and any term of this Arbitration Agreement, the applicable terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of these Terms of Service as a court would. All issues are for the arbitrator to decide, including, but not limited to, issues relating to the scope, enforceability, and arbitrability of this Arbitration Agreement. Although arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings, the arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under the Terms of Service and applicable law. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons.
Unless Welly and you agree otherwise, any arbitration hearings will take place in a reasonably convenient location for both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination shall be made by AAA. If your claim is for $10,000 or less, Welly agrees that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.
e. Costs of Arbitration
Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees”) will be governed by the AAA Rules, unless otherwise provided in this Arbitration Agreement. If the value of the relief sought is $75,000 or less, at your request, Welly will pay all Arbitration Fees. If the value of relief sought is more than $75,000 and you are able to demonstrate to the arbitrator that you are economically unable to pay your portion of the Arbitration Fees or if the arbitrator otherwise determines for any reason that you should not be required to pay your portion of the Arbitration Fees, Welly will pay your portion of such fees. In addition, if you demonstrate to the arbitrator that the costs of arbitration will be prohibitive as compared to the costs of litigation, Welly will pay as much of the Arbitration Fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. Any payment of attorneys’ fees will be governed by the AAA Rules.
All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.
If a court or the arbitrator decides that any term or provision of this Arbitration Agreement (other than the subsection (b) above titled “Prohibition of Class and Representative Actions and Non-Individualized Relief”) is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement shall be enforceable as so modified. If a court or the arbitrator decides that any of the provisions of subsection (b) above titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” are invalid or unenforceable, then the entirety of this Arbitration Agreement shall be null and void, unless such provisions are deemed to be invalid or unenforceable solely with respect to claims for public injunctive relief. The remainder of the Terms of Service will continue to apply.
h. Future Changes to Arbitration Agreement
Notwithstanding any provision in this Terms of Service to the contrary, Welly agrees that if it makes any future change to this Arbitration Agreement (other than a change to the Notice Address) while you are a user of the Site, you may reject any such change by sending Welly written notice within thirty (30) calendar days of the change to the Notice Address provided above. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this Arbitration Agreement as of the date you first accepted these Terms of Service (or accepted any subsequent changes to these Terms of Service).
SECTION 14 - SEVERABILITY
In the event that any provision of these Terms of Service is determined to be unlawful, void or unenforceable, such provision will nonetheless be enforceable to the fullest extent permitted by applicable law, and the unenforceable portion will be deemed to be severed from these Terms of Service, such determination will not affect the validity and enforceability of any other remaining provisions.
SECTION 15 - TERMINATION
The obligations and liabilities of the parties incurred prior to the termination date will survive the termination of this agreement for all purposes. You agree that Welly, in its sole discretion, may suspend or terminate your account (or any part thereof) or use of the Site and remove and discard any content within the Site, for any reason, including, without limitation, for lack of use or if Welly believes that you have violated or acted inconsistently with the letter or spirit of these Terms of Service. Any suspected fraudulent, abusive or illegal activity that may be grounds for termination of your use of the Site, may be referred to appropriate law enforcement authorities. Welly may also in its sole discretion and at any time discontinue providing the Site, or any part thereof, with or without notice. You agree that any termination of your access to the Site under any provision of these Terms of Service may be effected without prior notice, and acknowledge and agree that Welly may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or the Site. Further, you agree that Welly will not be liable to you or any third party for any termination of your access to the Site.
SECTION 16 - ENTIRE AGREEMENT
The failure of us to exercise or enforce any right or provision of these Terms of Service will not constitute a waiver of such right or provision. These Terms of Service and any policies or operating rules posted by us on the Site constitutes the entire agreement and understanding between you and us and govern your use of the Site, superseding any prior or contemporaneous agreements, communications and proposals, whether oral or written, between you and us (including, but not limited to, any prior versions of the Terms of Service). Any ambiguities in the interpretation of these Terms of Service will not be construed against the drafting party.
SECTION 17 - GOVERNING LAW; VENUE; DISPUTES
These Terms of Service will be governed by the laws of the State of Minnesota without regard to its conflict of law provisions. With respect to any disputes or claims not subject to arbitration, as set forth above, you and Welly agree to submit to the personal and exclusive jurisdiction of the state and federal courts located within Hennepin County, Minnesota.
You agree that you are solely responsible for your interactions with any other user in connection with the Site and Welly will have no liability or responsibility with respect thereto. Welly reserves the right, but has no obligation, to become involved in any way with disputes between you and any other user of the Site.
SECTION 18 – NOTICE FOR CALIFORNIA USERS
Under California Civil Code Section 1789.3, users of the Site from California are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210. You may contact us at Welly Health PBC, Suite 2800 60 S 6th St Minneapolis, MN 55402 or 1(833) BE-WELLY
SECTION 19 - CONTACT INFORMATION
Questions about these Terms of Service should be sent to us at email@example.com.