TERMS OF USE AND NOTICE
Effective Date: April 6, 2010
Material Modifications since April 6, 2010: NONE
PLEASE READ THESE TERMS OF USE CAREFULLY.
This website and the services offered through the website www.welphoria.com ("Site") are operated and maintained by WELLPHORIA, INC. and/or its affiliates (collectively, "WELLPHORIA"). By accessing or using this Site in any way, including, without limitation, browsing this Site, using any information, and/or submitting your personal information to WELLPHORIA you signify your understanding of and agreement to be bound by the terms, conditions, policies and notices contained on this page (these "Terms of Use"), including but not limited to, conducting this transaction electronically, disclaimers of warranties, damage and remedy exclusions and limitations, and a choice of MASSACHUSETTS law..
1. DISCLAIMERS
NO MEDICAL ADVICE. The contents of the Wellphoria web site (“Site” including all text, graphics, images and other material (“Content”) are for informational purposes only. THE CONTENT ON THIS SITE IS NOT INTENDED IN ANY WAY TO BE A SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE. ALWAYS SEEK THE ADVICE OF YOUR PHYSICIAN OR OTHER QUALIFIED HEALTH PROVIDER WITH ANY QUESTIONS YOU MAY HAVE REGARDING A MEDICAL CONDITION. NEITHER THE CONTENT NOR ANY OTHER SERVICE OFFERED BY OR THROUGH THIS SITE IS INTENDED TO BE RELIED ON FOR MEDICAL DIAGNOSIS OR TREATMENT. NEVER DISREGARD MEDICAL ADVICE OR DELAY IN SEEKING IT BECAUSE OF SOMETHING YOU HAVE READ ON THIS SITE! IN AN EMERGENCY, CALL 911 OR YOUR LOCAL EMERGENCY ASSISTANCE NUMBER.
2. Modification. We reserve the right to modify these Terms of Use at any time, and without prior notice, by posting an amended Terms of Use that is always accessible through the Terms of Use link on this site's home page. You should scroll to the bottom of this page periodically to review material modifications and their effective dates. YOUR CONTINUED USE OF THIS SITE FOLLOWING OUR POSTING OF A MODIFICATION NOTICE OR NEW TERMS OF USE ON THIS SITE WILL CONSTITUTE BINDING ACCEPTANCE OF THE MODIFICATION OR NEW TERMS OF USE.
3. Use And Restrictions. Subject to these Terms of Use and our Privacy Policy, you may use the public areas of this site, but only for your own internal purposes. You agree not to access (or attempt to access) this site by any means other than through the interface we provide, unless you have been specifically allowed to do so in a separate agreement. You agree not to access (or attempt to access) this site through any automated means (including use of scripts or web crawlers), and you agree to comply with the instructions set out in any robots.txt file present on this site. You are not authorized to (i) resell, sublicense, transfer, assign, or distribute the site, its services or content; (ii) modify or make derivative works based on the site, its services or content; or (iii) "frame" or "mirror" the site, its services or content on any other server or Internet-enabled device. All rights not expressly granted in this Agreement are reserved by us and our licensors.
4. How We Treat Postings To This Site. We will not treat information that you post to areas of this site that are viewable by others (for example, to a blog, forum or chat-room) as proprietary, private, or confidential. We have no obligation to monitor posts to this site or to exercise any editorial control over such posts; however, we reserve the right to review such posts and to remove any material that, in our judgment, is not appropriate. Posting, transmitting, promoting, using, distributing or storing content that could subject us to any legal liability, whether in tort or otherwise, or that is in violation of any applicable law or regulation, or otherwise contrary to commonly accepted community standards, is prohibited, including without limitation information and material protected by copyright, trademark, trade secret, nondisclosure or confidentiality agreements, or other intellectual property rights, and material that is obscene, defamatory, constitutes a threat, or violates export control laws.
5. Defamation; Communications Decency Act Notice. This site is a provider of Interactive computer services under the Communications Decency Act, 47 U.S.C. Section 230, and as such, our liability for defamation and other claims arising out of any postings to this site by third parties is limited as described therein. We are not responsible for content or any other information posted to this site by third parties. We neither warrant the accuracy of such postings or exercise any editorial control over such posts, nor do we assume any legal obligation for editorial control of content posted by third parties or liability in connection with such postings, including any responsibility or liability for investigating or verifying the accuracy of any content or any other information contained in such postings.
6. Monitoring. We reserve the right, but not the obligation, to monitor your access and use of this site without notification to you. We may record or log your use in a manner as set out in our Privacy Policy that is accessible though the Privacy Policy link on this Site’s home page.
7. Separate Agreements. You may enroll in the Wellphoria Discount Membership Program, which requires that you agree to a separate agreement in addition to these Terms of Us as a condition of your membership. This site and/or purchase of such products, services and/or content.
8. Ownership. The material provided on this site is protected by law, including, but not limited to, United States copyright law and international treaties. The copyright in the content of this site is owned by us or others. Except for the limited rights granted above, all other rights are reserved.
9. DMCA Notice.
It is our policy to expeditiously respond to clear notices of alleged copyright infringement that comply with the United States Digital Millennium Copyright Act (DMCA). This page describes the information that should be present in these notices. It is designed to make submitting notices of alleged infringement to Wellphoria, Inc (“Wellphoria”) as straightforward as possible while reducing the number of notices that we receive that are fraudulent or difficult to understand or verify. The form of notice specified below is consistent with the form suggested by the DMCA (the text of which can be found at the U.S. Copyright Office Web Site, http://www.copyright.gov), but we will respond to notices of this form from other jurisdictions as well.
It is expected that all users of any part of the WELLPHORIA site will comply with applicable copyright laws. If, however, we receive proper notification of claimed copyright infringement, our response to such notices will include removing or disabling access to material claimed to be the subject of infringing activity and/or terminating subscribers, regardless of whether we may be liable for such infringement under United States law or the laws of another jurisdiction.
If we remove or disable access in response to such a notice, we will make a good-faith attempt to contact the owner or administrator of the affected site or content so that they may make a counter notification pursuant to Sections 512(g)(2) and (3) of the DMCA. We may also document notices of alleged infringement on which we act.
INFRINGEMENT NOTIFICATION:
Upon receipt of proper notification of claimed infringement, WELLPHORIA will follow the procedures outlined herein and in the DMCA.
To file a notice of infringement with WELLPHORIA, you must provide a written communication (by fax or regular mail) that sets forth the information specified in the list below. Subject to prior written agreement you may not communicate the information specified below by email. Please note that you will be liable for damages (including costs and attorney’s fees) if you materially misrepresent that material is infringing your copyright(s). Accordingly, if you are not sure if you are the proper copyright holder or if copyright laws protect the material of yours, you may want to consult a lawyer.
To expedite our ability to process your request, please use the following format (including section numbers):
1. Identify with sufficient detail the copyrighted work that you believe has to been infringed. (For example, “The copyrighted work at issue is the “Name of the work” by “name of the author” and abstract number (http://Wellphoria.com/abstract=638801)
2. Identification of 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 permit the WELLPHORIA to locate the material;
3. Information reasonably sufficient to permit the WELLPHORIA to contact the complaining party, such as an address, telephone number, and, if available, an email address at which the complaining party may be contacted;
4. The following statement: "I have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law";
5. The following statement: "I swear, under penalty of perjury, that the information in the notification is accurate, and that I am the copyright owner or am authorized to act on behalf of the owner of an exclusive right that is allegedly infringed"; and
6. Sign the document.
7. Send the written communication to:
Wellphoria, Inc
Attn: WELLPHORIA DMCA Complaints
Wellphoria, 470 Atlantic Ave., 4Th Floor, Boston, MA 02210
COUNTER NOTIFICATION
The provider of the allegedly infringing content an may make a counter notification pursuant to sections 512(g)(2) and (3) of the Digital Millennium Copyright Act.
To file a counter notification with us, you must provide a written communication (by fax or regular mail) that sets forth the information specified in the list below. Subject to prior written agreement you may not communicate the information specified below by email. Please note that you will be liable for damages (including costs and attorney’s fees) if you materially misrepresent that material is infringing your copyright(s). Accordingly, if you are not sure if you are the proper copyright holder or if copyright laws protect the material of yours, you may want to consult a lawyer. Please note that you will be liable for damages (including costs and attorneys' fees) if you materially misrepresent that a product or activity is not infringing the copyrights of others. Accordingly, if you are not sure whether certain material infringes the copyrights of others, we suggest that you first contact an attorney.
To expedite our ability to process your request, please use the following format (including section numbers):
1. Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
2. Your name, address, and telephone number;
3. The following statement: "I consent to the jurisdiction of Federal District Court for the [insert the federal judicial district in which your address is located]";
4. The following statement: "I will accept service of process from [insert the name of the person who submitted the infringement notification] or his/her agent";
5. The following statement: "I swear, under penalty of perjury, that I have a good faith belief that the affected material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled"; and
6. Sign the document.
7. Send the written communication to:
Wellphoria, Inc
Attn: WELLPHORIA DMCA Complaints
Wellphoria, 470 Atlantic Ave., 4Th Floor, Boston, MA 02210
Upon receipt of such counter notification, the WELLPHORIA will promptly provide the person who provided the original infringement notification with a copy of the counter notification, and inform that person that the WELLPHORIA will replace the removed material or cease disabling access to it in 10 business days. WELLPHORIA will replace the removed material and cease disabling access to it not less than 10, nor more than 14, business days following receipt of the counter notice, unless our Designated Agent first receives notice from the person who submitted the original infringement notification that such person has filed an action seeking a court order to restrain the subscriber from engaging in infringing activity relating to the material on our system or network.
REPEAT INFRINGERS In accordance with Section 512(i)(1)(a) of the DMCA, the WELLPHORIA will, in appropriate circumstances, disable and/or terminate the accounts of users who are repeat infringers.
10. Warranty Disclaimers. EXCEPT AS MAY BE PROVIDED IN ANY SEPARATE WRITTEN AGREEMENTS SIGNED BY THE PARTIES, THE SERVICES, CONTENT, AND/OR PRODUCTS ON THIS SITE ARE PROVIDED AS-IS AND NEITHER WE NOR ANY OF OUR LICENSORS MAKE ANY REPRESENTATION OR WARRANTY WITH RESPECT TO SUCH PRODUCTS, SERVICES, AND/OR CONTENT. EXCEPT AS MAY BE PROVIDED IN ANY SEPARATE WRITTEN AGREEMENT SIGNED BY THE PARTIES OR SEPARATE AGREEMENT ORIGINATING FROM THIS SITE, THIS SITE AND ITS LICENSORS SPECIFICALLY DISCLAIM, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, RELATING TO THIS SITE OR PRODUCTS, SERVICES AND/OR CONTENT ACQUIRED FROM THIS SITE, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, COMPLETENESS, TIMELINESS, CORRECTNESS, NON-INFRINGEMENT, OR FITNESS FOR ANY PARTICULAR PURPOSE. THIS SITE AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT THIS SITE, ITS PRODUCTS, SERVICES, AND/OR CONTENT: (A) WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, OR (C) WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. DISCLAIMER: WE DO NOT PROVIDE MEDICAL ADVICE FOR ANY PURPOSE, INCLUDING ANY MEDICAL ADVICE REGARDING ANY ASPECT OF YOUR PARTICIPATION IN A FITNESS PROGRAM. ALL INFORMATION PROVIDED ON THIS SITE IS FOR INFORMATIONAL PURPOSES ONLY.. THESE DISCLAIMERS CONSTITUTE AN ESSENTIAL PART OF THIS AGREEMENT. NO PURCHASE OR USE OF THE ITEMS OFFERED BY THIS SITE IS AUTHORIZED HEREUNDER EXCEPT UNDER THESE DISCLAIMERS. IF IMPLIED WARRANTIES MAY NOT BE DISCLAIMED UNDER APPLICABLE LAW, THEN ANY IMPLIED WARRANTIES ARE LIMITED IN DURATION TO THE PERIOD REQUIRED BY APPLICABLE LAW. SOME STATES OR JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY MAY LAST, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
11. Limitation of Liability. IN NO EVENT SHALL THIS SITE AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY DIRECT, INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS SITE, ITS PRODUCTS, SERVICES, AND/OR CONTENT, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE, EVEN IF THIS SITE OR OUR LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
12. Links to This Site. We grant to you a limited, revocable, and nonexclusive right to create a hyperlink to this site provided that the link does not portray us or our products or services in a false, misleading, derogatory, or offensive matter. You may not use any logo, trademark, or tradename that may be displayed on this site or other proprietary graphic image in the link without our prior written consent.
13. Links to Third Party Websites. We do not review or control third party websites that link to or from this site, and we are not responsible for their content, and do not represent that their content is accurate or appropriate. Your use of any third party site is on your own initiative and at your own risk, and may be subject to the other sites í terms of use and privacy policy.
14. Participation In Promotions of Advertisers. You may enter into correspondence with or participate in promotions of advertisers promoting their products, services or content on this site. Any such correspondence or participation, including the delivery of and the payment for products, services or content, are solely between you and each such advertiser.
15. Consumer Rights Information; California Civil Code Section 1789.3. If this site charges for services, products, content, or information, pricing information will be posted as part of the ordering process for this site. We maintain specific contact information including an e-mail address for notifications of complaints and for inquiries regarding pricing policies in accordance with California Civil Code Section 1789.3. All correspondence should be addressed to our agent for notice at the following address:
Notification of Consumer Rights Complaint or Pricing Inquiry:
Wellphoria, Inc.
470 Atlantic Ave. 4th Floor Boston, MA 02210
Contact: compliance.officer-at wellphoria.com
Phone: 1-888-well-4ya (935-5492).
You may contact us with complaints and inquiries regarding pricing and we will investigate those matters and respond to the inquiries.
The Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs may be contacted in writing.
16. Jurisdiction And Venue. The courts of Suffolk County in the Commonwealth of Massachusetts, USA and the nearest U.S. District Court shall be the exclusive jurisdiction and venue for all legal proceedings arising under these Terms of Use.
17. Controlling Law. This Agreement shall be construed under the laws of the Commonwealth of Massachusetts, USA, excluding rules regarding conflicts of law. The application the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded.
18. Intended For Use Only Within The United States. This site is intended for use only from within the United States. We do not represent that this site is appropriate for use elsewhere. Access to this site from locations where its contents are illegal is not authorized.
19. Onward Transfer of Personal Information Outside Your Country of Residence. Any personal information which we may collect on this site will be stored and processed in our servers located only in the United States. If you reside outside the United States, you consent to the transfer of personal information outside your country of residence to the United States.
20. Force Majeure. We shall not be liable for damages for any delay or failure of delivery arising out of causes beyond our reasonable control and without our fault or negligence, including, but not limited to, Acts of God, acts of civil or military authority, fires, riots, wars, embargoes, Internet disruptions, hacker attacks, or communications failures.
21. Privacy. Please review this site's Privacy Policy, which also governs your visit to this site. Our Privacy Policy is always accessible on our site's home page.
