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This APPLICATION LICENCE AGREEMENT (the “Agreement”) shall set forth the terms and conditions pursuant to which Continuwell, LLC (“CW”) shall license certain CW mobile, desktop and web applications (each an “Application”). Each person that has agreed to license the Application shall be referred to as the “User”.

 

The Application is owned and/or operated by CW. CW has entered into an agreement with the company that you work for or the organization that you are a member regarding your access to and use of the Application. BY DOWNLOADING THE APPLICATION, CLICKING ON THE “I ACCEPT” BUTTON OR USING THE APPLICATION YOU AGREE TO TERMS AND CONDITIONS OF THIS AGREEMENT.  CW reserves the right to change, modify, add or remove portions of the Agreement at any time. Please check this Agreement periodically for changes. User’s continued use of the Application following the posting of changes to the Agreement will mean User has accepted those changes.

 

THE APPLICATION WILL PROVIDE THE USER WITH INFORMATION REGARDING THE COMPANY THAT THEY WORK FOR OR THE ORGANIZATION THAT THEY ARE A MEMBER OF (E.G. INFORMATION REGARDING HEALTH CARE BENEFITS). THE COMPANY OR ORGANIZATION INFORMATION PROVIDED THROUGH THE APPLICATION WAS NOT CREATED BY CW, HAS NOT BEEN REVIEWED BY CW AND SHOULD NOT BE VIEWED AS A RECOMMENDATION OR APPROVAL OF SUCH INFORMATION BY CW. USE OF THE APPLICATION AND RELATED INFORMATION WILL BE AT USER’S SOLE RISK AND RESPONSIBILTY. THE APPLICATION MAY INCLUDE CERTAIN INFORMATION OR SERVICES PROVIDED BY CW; THE USER’S USE OF SUCH INFORMATION IS SUBJECT TO THE TERMS AND CONDITIONS OF THIS AGREEMENT AND OTHER CW TERMS AND CONDITIONS.

 

Use of the MOBILE VERSION OF THE Application is also subject to the terms and conditions of the mobile Application’s distributor (E.G. APPLE OR GOOGLE) or the terms and conditions required by the mobile network operator

 

TERMS AND CONDITIONS

  1. Term; Termination; Survival of Provisions. This Agreement may be terminated by CW for any or no reason on five days’ notice; such notice shall be provided when you access the Application or visit the CW website. The following sections of this Agreement shall continue in full force and effect upon termination of this Agreement or expiration of the Term: 2.2, 5, 6, and 10. In the event of termination, CW reserves the right to delete or save a User’s User Data (as defined below) at CW’s sole discretion.
  2. License

2.1   Subject to the provisions of this Agreement, CW grants to the User a non-exclusive,
non-transferable, revocable, limited license to download, access and use the Application until that time that this Agreement is terminated by CW.   Use of the Application shall be solely in a manner consistent with the terms of this Agreement.  Except for the license granted in this Section 2.1, the User acknowledges that it acquires no other rights to the Application and that all right, title and interest in and to the Application shall remain with CW and its licensors.  The User shall not decompile, copy, disassemble, modify, decrypt, translate, extract or otherwise reverse engineer the Application.

2.2   User shall not (a) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Application; (b) modify or make derivative works based upon the Application; (c) create Internet “links” to the Application or “frame” or “mirror” the Application on any other server or wireless or Internet-based device; (d) interfere with or disrupt the integrity or performance of the Application or the data contained therein; or (e) attempt to gain unauthorized access to the Application or its related systems or networks.

  1. Use of Application

3.1       CW shall provide User with a user ID and password to access and use the Application. User is solely responsible for the security and use of each user ID and password. User agrees not to share or transfer User ID and password with any other person or entity. If the security of the User ID and/or password is compromised, User shall promptly contact CW by email at support@continuwell.com.

3.2       CW does not own any data, information, or material that User submits to CW in the course of using the Application (the “User Data”). User, not CW, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all User Data, and CW shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any User Data. The User grants CW the royalty-free, world-wide, perpetual, non-exclusive, transferable license to use, reproduce, modify, edit, publish, distribute and display such User Data through the Application. User represents and warrants to CW that User Data: (a) is original to User or that User has secured the rights to provide and use such User Data; (b) does not contain any content that is unlawful or invasive of another’s privacy or publicity rights; or (c) does not contain a virus or other harmful component.

3.3       CW shall have the right (but not the obligation) in its sole discretion to refuse or delete any User Data that it considers to violate this Agreement or be otherwise illegal. CW, in its sole and absolute discretion, may preserve User Data and may also disclose User Data if required to do so by law, judicial or governmental mandate or, to protect the rights, property, or personal safety of Application users and the public.

3.4       CW’s use of the User Data is subject to CW’s privacy policy (https://continuwell.com/resources/website-privacy/). Except as set forth in such privacy policy or this Agreement, CW shall not (a) disclose, provide or make available the User Data to a third party without User’s prior written approval; or (b) make any other use of the User Data. User acknowledges that CW may compile certain general information related to the use of the Application. Notwithstanding the restrictions set forth in this Section 3, User agrees that CW is authorized to use, reproduce and generally make User Data available to third parties in the aggregate, provided that such User Data shall not include personally identifiable information or identify User as the source of such aggregated data. In addition to the CW privacy policy, additional terms and conditions regarding your personally identifiable information may apply to your use of certain services provided by CW.

3.5       THE APPLICATION IS NOT INTENDED FOR USE BY THOSE UNDER THE AGE OF 18.

  1. License Fees. The fee or charge for the license to use the Application shall be paid by the company you work for or the organization that you are a member of.
  2. Limitation of Liability. IN NO EVENT SHALL CW BE LIABLE TO THE USER FOR ANY DIRECT, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES. Without in any way limiting or restricting the other types of damages or liabilities excluded pursuant to this section, the User agrees that CW shall in no event be liable for any bodily or mental injury (including any and all related costs, damages and expenses) related to the CW’s use or inability to use the Application. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS (OR THE WARRANTY LIMITATIONS SET FORTH BELOW IN SECTION 9.1) MAY NOT APPLY.
  3. User shall indemnify and hold CW and its parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with: (a) a claim, which if true, would constitute a violation by the User of the representations and warranties set forth in Section 9.2 below; (b) User’s breach of Sections 2 or 3.2 above; (c) User’s use of the Application; or (d) CW’s use of the User Data.
  4. CW Nurse Triage. CW may provide the User with access to and use of certain CW nurse triage services as part of the Application (the “Triage Services”). A User must be at least eighteen (18) years old to use the Triage Services. THE TRIAGE SERVICES DO NOT PROVIDE MEDICAL ADVICE. The Triage Services are for informational purposes only. THE TRIAGE SERVCES ARE NOT INTENDED TO BE A SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT. THE USER SHOULD ALWAYS SEEK THE ADVICE OF A PHYSICIAN OR OTHER QUALIFIED HEALTH PROVIDER WITH ANY QUESTIONS USER MAY HAVE REGARDING A MEDICAL CONDITION. A USER SHOULD NEVER DISREGARD PROFESSIONAL MEDICAL ADVICE OR DELAY IN SEEKING ADVICE BECAUSE OF SOMETHING USER HAS READ ON THIS APPLICATION OR AS PART OF THE TRIAGE SERVICES. CW does not recommend or endorse any specific tests, products, procedures, opinions, or other information that may be mentioned on the Application. The Application, including the Triage Services, do not constitute the practice of any medical or other professional health care advice, diagnosis or treatment. IF USER HAS OR SUSPECTS THAT THEY HAVE A MEDICAL PROBLEM OR CONDITION, THEY SHOULD CONTACT A QUALIFIED HEALTH CARE PROFESSIONAL IMMEDIATELY. IF USER IS IN THE UNITED STATES AND IS EXPERIENCING A MEDICAL EMERGENCY, THE USER SHOULD CALL 911 OR CALL FOR EMERGENCY MEDICAL HELP ON THE NEAREST TELEPHONE. Use of the Application neither constitutes a patient visit with any health care provider nor obligates CW in treatment for any condition in any way.
  5. CW respects the intellectual property rights of others, and requires that the people who use the Application do the same. It is our policy to respond promptly to claims of intellectual property misuse. If User believes that its work has been copied and is accessible on this Application in a way that constitutes copyright infringement, User may notify CW by providing our copyright agent with the following information in writing: (a) the electronic or physical signature of the owner of the copyright or the person authorized to act on the owner’s behalf; (b) identification of the copyrighted work that User claims has been infringed; (c) identification of the material that is claimed to be infringing and information reasonably sufficient to permit CW to locate the material, including, if applicable the full URL; (d) the User’s name, address, telephone number, and email address; (e) a statement by the User that User has a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and (f) a statement, made under penalty of perjury, that the above information in the User’s notice is accurate and that the User is the copyright owner or are authorized to act on the copyright owner’s behalf.

Our designated agent to receive notification of claimed infringement under the Digital Millennium Copyright Act of 1998 is:

John Roberts

New Counsel, PLC

233 Park Avenue, Suite 203

Minneapolis, Minnesota 55415

612-659-8443

jroberts@newcounsel.com

  1. Representations and Warranties.

9.1   THE APP IS PROVIDED TO USER BY CW ON “AS-IS” AND “AS AVAILABLE” BASIS. CW DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

9.2     The User represents and warrants that: (a) it has the power and authority to enter into this Agreement and to perform all of its obligations; (b) the performance of such obligations will not conflict with or result in a breach of any agreement to which the User is a party or is otherwise bound; and (c) its performance under this Agreement, and its use of the Application, shall comply with all applicable laws, rules, regulations and policies.

10.General Terms.

10.1     User may not assign this Agreement to any person or entity without the prior written permission of CW.

10.2     This Agreement, and the above described CW privacy policy and any additional terms related to the Triage Services, constitutes the entire understanding of the parties and supersedes all prior discussions and agreements with respect to its subject matter. This Agreement may be amended by CW at any time by providing notice to User; such notice shall be made when User accesses the Application or visits the CW website.

10.3     If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. The failure of CW to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by CW in writing.

10.4     Except as set forth above, either party may give notice by personal delivery or by nationally recognized expedited carrier (e.g. FedEx or DHL). Personal delivery shall be effective upon delivery; delivery by expedited carrier shall be deemed delivered forty-eight (48) hours after the notice is sent by such expedited carrier.

10.5     The Agreement shall be controlled by and interpreted under the laws of the state of Florida, excluding that state’s conflict of laws’ provisions. The exclusive jurisdiction for any dispute regarding this Agreement shall be the state or federal courts in Duval County, Florida. It is agreed that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. CW and User each waive any right to a jury trial. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement.

10.6     The Application may provide links to websites or other applications. CW exercises no control whatsoever over such other websites or applications and is not responsible or liable for the availability, data, advertising, products or other materials on such websites. User’s access and use of such linked websites or applications, including information, material, products and services therein, is solely at User’s own risk.