Connected Wellness End User Terms of Use

(last updated: January 2016)

1. What the Contract Covers

IMPORTANT: READ THIS CONTRACT CAREFULLY.

THIS CONTRACT APPLIES TO YOUR ACCESS AND USE OF NexJ CONNECTED WELLNESS (“NCW”) (formerly the Connected Wellness Platform) BY the NexJ Health AND YOUR ACCESS AND USE OF PROGRAMS AND SERVICES PROVIDED BY NexJ Health (Collectively with the NCW, referred to as the “Service”) ON NCW. BY ACCESSING OR USING THE SERVICE YOU CONFIRM THAT YOU AGREE TO THESE TERMS. IF YOU DO NOT AGREE TO THE TERMS OF THIS CONTRACT, DO NOT USE THE SERVICE. BY GRANTING YOU ACCESS TO THE SERVICE, NexJ Health ACCEPTS THESE TERMS AS A LEGALLY BINDING CONTRACT BETWEEN YOU AND NexJ Health.

PLEASE NOTE THAT NexJ Health DOES NOT PROVIDE WARRANTIES FOR THE SERVICE. THIS CONTRACT LIMITS NexJ Health’S LIABILITY TO YOU. SEE SECTIONS 6 AND 7 FOR DETAILS.

YOU ACKNOWLEDGE AND AGREE THAT THE SERVICE SHALL NOT BE USED TO PROVIDE EMERGENCY MEDICAL CARE, TIME SENSITIVE TREATMENT, MAKE MEDICAL DIAGNOSES OR DETERMINATIONS OR AS A DIAGNOSTIC TOOL.

2. Using the Service

The Service is intended to proactively help you and your authorized healthcare providers manage your health and wellness by allowing you to conveniently store your personal health related information. “Healthcare Providers” means those Physicians, Nurses, Nurse Practitioners, Physician Assistants, Audiologists, Optometrists, Physical Therapists, Music Therapists, Speech Therapists, Massage Therapists, Psychologists, Dentists, Hygienists, Licensed Social Workers, Midwives, Dieticians, Counselors, Mental Health Practitioners, Physiologists and other licensed medical and lay practitioners credentialed or authorized to provide medical or other health advisory services to you.

Using the Service, you may authorize others including Healthcare Providers to provide a copy of your healthcare information to the Service from their systems and authorize others including Healthcare Providers to view and use your health related information stored in the Service including copying it from the Service to systems controlled by such other parties. Healthcare Providers remain the responsible custodians for any of your healthcare information stored in their systems.

Your health related information stored on the Service, including healthcare information copied from a Healthcare Provider’s systems to the Service, is not intended to be used for diagnosis or treatment. Such information may not always be accurate or up-to-date and should be viewed by any Healthcare Provider as informational only.

You may use the Service to proactively manage your health and wellness by using the programs and services available on the Service and by sharing your health related information with your friends, family, Healthcare Providers and other allies (collectively, “Circle of Care”) including health coaches authorized to provide health coaching on the Service.

To use certain programs and services you may need to agree to additional terms of use including payment terms for use of such programs or services. The base level of Service may be limited in terms of resources like storage, bandwidth or premium content available to you, and you may be required to pay additional user fees for additional resources. Certain programs and services on the Service are provided by third parties. NexJ Health does not operate, control or supply any information, product or service that is not clearly identified as supplied by NexJ Health. Your use of such third party programs is solely between you and the third party and is governed by those programs and services’ separate terms of use. Your use of them does not alter your legal relationship with NexJ Health or increase our liability to you.

When using the Service you must comply with this contract, all applicable laws, the code of conduct set out below and other rules or policies that NexJ Health establishes from time to time.

3. Code of Conduct

The Service is not intended for use by children under the age of 13 and NexJ Health specifically requests that persons under the age of 13 not submit any information to the Service. NexJ Health does not knowingly collect any personal information from persons under the age of 13. If you have reason to believe that NexJ Health may have accidentally received personal information from an individual under age 13, please contact NexJ Health immediately at privacy@nexjhealth.com. As a user of the Service you are liable for all activities and content you post. You are responsible for adhering to all applicable laws. You must not use the Service to harm, threaten or harass others. You must not damage, disable, overburden or impair the Service. You must not resell or redistribute the Service or any part of it; use unauthorized means to modify, reroute, or gain access to the Service or attempt to carry out these activities or use any automated process or service (such as a bot, a spider, periodic caching or metasearching) to access or use the Service. You may be able to access third-party websites or information using the Service. NexJ Health is not responsible for such websites or information.

You will not upload, post, transmit, transfer, disseminate, distribute or facilitate the distribution of any content, including text, images, video, sound, data, information, or software, that:

In addition to upholding the terms of the code of conduct set out in this section 3, you are responsible for adhering to all applicable local and national laws.

You shall not use the Service or otherwise access the Service if you or any member of your Circle of Care are a direct competitor of NexJ Health or are employed by a direct competitor of NexJ Health, without the express written consent of NexJ Health which consent may be withheld or withdrawn by NexJ Health in its sole discretion. In addition, you may not access the Services for purposes of performing any form of benchmarking or other competitive analysis or if you intend to develop a product or service that is in any way similar to the Service and/or the Service. You shall not, nor shall you permit others to translate, reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code from all or any part of the Service except to the extent applicable law expressly prohibits the foregoing restriction.

You will not use any form of automated device or computer program that enables the submission of postings without the express written consent of NexJ Health.

NexJ Health reserves the right, at its sole discretion, acting reasonably, and without any obligation to do so, to review and remove user-created services and content at will and without notice, and delete content and accounts. NexJ Health reserves the right, at its sole discretion, acting reasonably, to ban participants or terminate access to services.

NexJ Health is not responsible for user-contributed information stored in the Service. The decision to view and/or share information or engage with Healthcare Providers or others is yours. NexJ Health advises you to use your judgment.

You are responsible for protecting your computer and other devices against interference, spyware or viruses that may be encountered for downloaded items from the Service. NexJ Health recommends you install a virus protection program on your computer and keep it up to date.

4. What you are Responsible For

Only you may use your username and password to access the Service. You must keep your username and password private and confidential. You may not authorize any third party to access or use the Service on your behalf. You may only use approved mechanisms to allow members of your Circle of Care including Healthcare Providers and authorized health coaches to have access to your information stored on the Service. You must contact NexJ Health customer support immediately if you suspect misuse of your username or any security breach of the Service. You are responsible for all activity or information associated with your username.

NexJ Health does not claim ownership of the information you provide on the Service. NexJ Health also does not control, verify, or endorse the information that you or others make available on the Service. You control who may access your information on the Service. If you share information with others then you agree that others may use that information. When you give others access to your information, they can use, reproduce, distribute, display, transmit and communicate the information to the public. If you don’t want others to have that ability you need to contractually restrict their use of your information or not allow them access.

If you share information on the Service in a way that infringes others’ rights, including privacy rights, you’re breaching this contract. You represent and warrant that you have all the rights necessary for you to grant the rights in this section and the use of the information doesn’t violate any law. NexJ Health may remove your information from the Service at any time if you breach this contract.

You are responsible for backing up the data that you store on the Service. If your access to the Service is cancelled, NexJ Health may permanently delete your data from our servers. NexJ Health has no obligation to return data to you after the Service is cancelled. If data is stored with an expiration date, NexJ Health may also delete the data as of that date. Data that is deleted may be irretrievable.

This Service is intended for personal health records. It does not hold records for Healthcare Providers or other medical or case management purposes. If a Healthcare Provider decides to include any data that you make available from the Service in its records, it should store a copy in its own systems.

5. Privacy

You explicitly consent to NexJ Health’s use of the personal health information you provide via the Service. You confirm that you have the legal authority to consent to NexJ Health processing all health information you provide, including by obtaining the explicit consent of all other persons whose health data you provide. That includes storing, using and disclosing the data in accordance with the Connected Wellness Privacy Policy.

NexJ Health considers your use of the Service to be private. However, NexJ Health may access or disclose information about you, your account and/or the content of your communications, in order to: (1) comply with the law or respond to lawful requests or legal process served on us; (2) protect the rights or property of NexJ Health or our customers, including the enforcement of our agreements or policies governing your use of the Service; or (3) act on a good faith belief that such access or disclosure is necessary to protect the personal safety of NexJ Health employees, customers, or the public. By your use of the Service and agreement to these Terms of Use, You consent to the access and disclosures outlined in this section.

The Service is a private computer network that NexJ Health operates for the benefit of itself and its customers. NexJ Health retains the right to block or otherwise prevent delivery of any type of email or other communication to or from the Service as part of our efforts to protect the Service, protect our customers, or stop you from breaching this contract. The technology or other means NexJ Health uses may hinder or break your use of the Service.

In order to provide you the Service, NexJ Health may collect certain information about service performance, your machine and your service use. NexJ Health may automatically upload this information from your machine. This data will not personally identify you. NexJ Health confirms that personal health information collected by NexJ Health through NCW will not be shared without your explicit consent. You may read about this information collection in more detail in Connected Wellness Privacy Policy.

6. No Warranty

NexJ Health provides the Service “AS-IS,” “WITH ALL FAULTS” and “AS AVAILABLE.” NexJ Health does not guarantee the accuracy or timeliness of information available from the Service. You acknowledge that computer and telecommunications systems are not fault-free and occasional periods of downtime occur. NexJ Health does not guarantee the Service will be uninterrupted, timely, secure, or error-free, or that data loss will not occur. NexJ Health and our affiliates and third party providers of programs or services give no express warranties, guarantees, or conditions. NexJ Health and its affiliates and third party providers of programs and services exclude any implied warranties or conditions, including for merchantability, satisfactory quality, fitness for a particular purpose, workmanlike effort, and noninfringement.

THE SERVICE DOES NOT PROVIDE MEDICAL OR ANY OTHER HEALTH CARE ADVICE, DIAGNOSIS OR TREATMENT. ALWAYS SEEK THE ADVICE OF YOUR PHYSICIAN OR OTHER QUALIFIED HEALTHCARE PROVIDER WITH ANY QUESTIONS YOU MAY HAVE REGARDING A MEDICAL CONDITION, DIET, FITNESS OR WELLNESS PROGRAM. NEVER DISREGARD PROFESSIONAL MEDICAL ADVICE OR DELAY IN SEEKING IT BECAUSE OF INFORMATION YOU ACCESSED ON OR THROUGH THE SERVICE.

7. Limitation of Liability

You can recover from NexJ Health and our affiliates and third party providers of programs and services only direct damages up to an amount you pay NexJ Health for the Service. You cannot recover any other damages, including consequential, lost profits, special, indirect, incidental or punitive damages.

The limitations and exclusions apply to anything related to this contract, for example:

The limitations and exclusions also apply if this remedy does not fully compensate you for any losses or fails of its essential purpose or if NexJ Health knew or should have known about the possibility of the damages. No action or proceeding relating to this contract may be commenced by you more than one year after the cause of action arises.

Nothing in these terms shall affect the statutory rights of any consumer or exclude or restrict liability for death or personal injury arising from NexJ Health’s negligence, fraud, or NexJ Health’s gross negligence or wilful intent. Nothing in these terms limits NexJ Health’s liability to you beyond what is permitted by applicable law.

8. Amendments to the Service or Terms of Use

NexJ Health may change the Service or delete features at any time and for any reason. NexJ Health may cancel or suspend your use of the Service and your access to the Service at any time. If your Service is cancelled, your right to use the Service stops immediately. Your ability to access and use some third party programs or services may also stop right away. Upon termination of your use of the Service your data will be destroyed. You may read more about this in Connected Wellness Privacy Policy.

NexJ Health reserves the right to amend or change these terms of use at any time and will notify you by posting new terms. If you do not agree to the changes, you must cancel and stop using the Service. If you do not stop using the Service, the new terms apply to you. NexJ Health encourages you to periodically review these terms of use to ensure you are in compliance.

9. Healthcare Providers

If you are a Healthcare Provider, in additional to all other terms in this Contract, you agree:

10. General Legal Terms

Any provision of this contract which is invalid or unenforceable in any jurisdiction shall be ineffective only to the extent of such invalidity or unenforceability and shall be severed from the balance of this contract and the remaining provisions of this contract shall continue in full force and effect.

NexJ Health may assign, transfer, or otherwise dispose our rights and obligations under this contract, in whole or in part, at any time without notice. You may not assign this contract or transfer any rights to use the Service.

Any notices required under this contract will be sent either using the Service or to your email address stored in your NCW account profile. You may send NexJ Health notices via our customer support as set out on the Service.

If you reside in Canada, this contract shall be governed by and construed in accordance with the laws in force in the Province of Ontario, otherwise, it is to be governed by and construed under the laws of the State of New York except its choice of law rules. The parties hereby expressly exclude the application of the United Nations Convention on Contracts for the International Sale of Goods. Except as expressly set out herein or prohibited by law, any dispute arising out of or in connection with this contract, including any question regarding the existence, validity or termination thereof, shall be submitted to final, binding and confidential arbitration. If you reside in Canada, the arbitration shall be conducted in Toronto, Ontario, in accordance with the rules of arbitration of the Arbitration Act, 1991 (Ontario) (“Ontario Rules”) and shall be heard by one arbitrator appointed in accordance with the Ontario Rules and to be mutually agreed to by the Parties within thirty (30) days of the appointment of the arbitrator, failing which a neutral third party shall appoint the arbitrator. If the provisions of the foregoing are prohibited by law in your jurisdiction, the arbitration shall be: (i) held in your jurisdiction; (ii) settled by arbitration in accordance with the Ontario Rules; and (iii) heard by one arbitrator appointed in accordance with the Ontario Rules and to be mutually agreed to by the Parties within thirty (30) days of the appointment of the arbitrator, failing which a neutral third party shall appoint the arbitrator. If you reside in the United States the arbitration shall be conducted in New York, New York in accordance with the Commercial Rules of the American Arbitration Association (the “AAA Rules”) and shall be heard by one arbitrator appointed in accordance with the AAA Rules and to be mutually agreed to by the Parties within thirty (30) days of the appointment of the arbitrator, failing which a neutral third party shall appoint the arbitrator. If the provisions of the foregoing are prohibited by law in your jurisdiction, the arbitration shall be: (i) held in your jurisdiction; (ii) settled by arbitration in accordance with the AAA Rules; and (iii) heard by one arbitrator appointed in accordance with the AAA Rules and to be mutually agreed to by the parties within thirty (30) days of the appointment of the arbitrator, failing which a neutral third party shall appoint the arbitrator. Each party shall bear one half of the costs associated with the arbitration proceedings. No dispute between the parties, or involving any person but you, may be joined or combined together, without the prior written consent of NexJ Health. The Arbitrator shall set strict deadlines for delivering pleadings and conducting any hearings in order to ensure the prompt and cost-effective resolution of the dispute. The party making the arbitration claim shall provide the arbitrator and the other party with a detailed summary of all of the oral and documentary evidence to which it has access that it intends to rely on to bring its claim at the time of making its initial claim. The sole arbitrator shall conduct a brief hearing promptly to consider the merits of the claim with a view to encouraging settlement and discouraging claims without merit. The sole arbitrator shall have the discretion to proceed without any discovery processes or to limit the scope of any discovery processes in order to ensure the prompt and cost effective resolution of any claims. The parties agree that any arbitration award may be enforced in any jurisdiction. The parties agree to accept service in accordance with the notice provisions hereof and not contest the authority of the Sole Arbitrator to resolve disputes hereunder. Notwithstanding the foregoing, NexJ Health may bring an action for injunctive relief in connection with a breach of this contract or an action for non-payment hereunder in any court rightfully having jurisdiction over such matters. The parties hereto have required that this Contract and all documents relating hereto be in English. Les parties ont demandé que cette convention ainsi que tous les documents qui s’y rattachent soient rédigés en anglais.

11. Additional Terms for Smartphone Application Use and the iOS Application

The Service may be accessed from a web browser or using native applications (“Smartphone Applications”) that run on Android or Apple iOS devices. Smartphone Applications are owned by NexJ Health and licensed to you on a non-exclusive, non-transferable basis solely for the purpose of using the Smartphone Application to access and use the Service. The terms of this section 10 only apply to users of the Service using an iOS Smartphone Application to access the Service. You agree that your license to use the iOS Smartphone Application is limited to a non-transferable license to use the iOS application on an iOS product that you own or control and as permitted by the Usage Rules set forth in the App Store Terms of Service. You and NexJ Health agree that these terms of use are between you and NexJ Health, not Apple, and that NexJ Health is solely responsible for the iOS Smartphone Application and the content thereof. NexJ Health is solely responsible for providing maintenance and support with respect to the iOS Smartphone Application. You and NexJ Health acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the iOS Smartphone Application. These terms of use provide no warranties with respect to the iOS Smartphone Application and to the maximum extent permitted by law disclaim any warranties implied by law. To the extent that the disclaimer is ineffective at disclaiming any applicable warranty, you may notify Apple, and Apple will refund the purchase price of the iOS Smartphone Application (if any) to you; and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the iOS Smartphone Application and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be NexJ Health’s sole responsibility. You and NexJ Health acknowledge that NexJ Health, not Apple, is responsible for addressing any claims relating to the iOS Smartphone Application or your possession of the iOS Smartphone Application including but not limited to: (i) product liability claims; (ii) any claim that the iOS Smartphone Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. Nothing in these terms limits NexJ Health’s liability to you beyond what is permitted by applicable law. You and NexJ Health acknowledge that in the event of any third party claim that the iOS Smartphone Application or your possession and use of the iOS Smartphone Application infringes any third party’s intellectual property rights, NexJ Health, and not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim. You represent and warrant that you are not located in a country that is subject to a U.S. government embargo, or that has been designated by the U.S. government as a “terrorist supporting” country; and you are not listed on any U.S. government list of prohibited or restricted parties. You must comply with any applicable third party terms of agreement when using the iOS Smartphone Application, i.e., any terms of service of a data carrier for the wireless device you are using. You and NexJ Health acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these additional terms related to use of the iOS Smartphone Application contained in this section 11 (the “Additional Terms”), and that, upon your acceptance of these terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Additional Terms against you as a third party beneficiary thereof.