Wheel Health, Inc. Terms of Use

Effective date: June 8, 2020

IF YOU HAVE A MEDICAL EMERGENCY, IMMEDIATELY CALL YOUR PRIMARY CARE PROVIDER OR DIAL 911.

Please read these Terms of Use (“Terms” or “Terms of Use”) carefully, as they constitute a binding contract between you, an individual user (“you”), and Wheel Health, Inc. and our corporate affiliates (collectively, “Wheel,” “We,” “Our”, or “Us”). Note that Section 15 of these Terms contains a mandatory arbitration provision that requires the use of arbitration on an individual basis and limits the remedies available to you in the event of certain disputes.

By clicking “I accept”, or by accessing or using the Services, you acknowledge that you have read, understood, and agreed to be legally bound by these Terms. You are not permitted to use the Services if you do not agree to these Terms, including the mandatory arbitration provision in Section 15.

1. Introduction

These Terms govern Your access to and use of the following, which are collectively referred to herein as the “Services”: (a) the website located at www.wheel.com (the “Website”); (b) Wheel’s application programming interface, access tokens, HTML scripts, code snippets, tools, instructions, documentation, and other materials made available by Wheel (collectively, the “Wheel API”); (c) the Wheel Dashboard located at app.wheel.com; and (d) any other services owned or operated by Wheel which link to these Terms.

These Terms describe your rights and responsibilities with regard to the Services that you may use for any reason. Your access to and use of the Services is subject to these Terms of Use and all applicable laws and regulations. Even though you may have arrived at the Services through a website or mobile application operated or controlled by a third party, you understand and agree that these Terms of Use are entered into between you and Wheel. The Services are continually under development, and Wheel reserves the right to change or modify these Terms at any time and in our sole discretion. If we make changes to these Terms, we will provide notice of such changes, such as by sending an email notification, providing notice through the Services or updating the “Last Updated” date at the beginning of these Terms. You should check the Terms from time to time when you use the Services to determine if any changes have been made. Any changes to these Terms of Use are effective upon posting to the Services. If you disagree with any of these Terms, your sole and exclusive remedy is to discontinue your use of the Services. Your continued use after a change has been posted constitutes your acceptance of the changes. If you do not agree to the revised Terms, you may not access or use the Services.

2. Requirements for Use

You must have compatible computing and/or mobile devices, access to the Internet, and certain necessary software in order to use the Services. Fees and data charges may apply to your use of the mobile services and the Internet.

3. Privacy Policy

Wheel understands the importance of confidentiality and privacy regarding your information. Please see our Privacy Policy for a description of how we collect, use, and disclose your personal information when you access or use the Services.

4. Your Relationship with Wheel

Wheel Health, Inc. does not provide any medical services, including via the Services. The health and wellness resources made available through our Services are not a substitute for direct in-person health care services in all cases. The decision to follow treatment recommendations rests with you and your health care provider. You understand that by accessing or using the Services, you are not entering into a provider-patient relationship with Wheel Health, Inc.

By accepting the Terms of Use, you agree and consent to Wheel sending you disclosures, notices, messages, reports, and other communications. It is your responsibility to monitor these communications. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including, but not limited to, that such communications be in writing. You should maintain copies of electronic communications from us by printing a paper copy or saving an electronic copy. You acknowledge and agree that you will not hold us or any Wheel affiliate liable for any loss, injury, or claim of any kind resulting from your failure to read these communications or for your failure to comply with any treatment recommendations contained in these communications.

5. Accounts and Security

To access and use certain features of the Services, you might need to register for an Account (“Account”) by creating a password and providing your name, email address, phone number and other information. If you register for an Account, you must provide accurate information and promptly update this information if it changes. You also must maintain the security of your Account and promptly notify us if you discover or suspect that someone has accessed your Account without your permission. If you permit others to use your Account credentials, you are responsible for the activities of such users that occur in connection with your Account.

6. Access Rights and Prohibited Use

Subject to your compliance with these Terms of Use, we hereby grant to you a personal, limited, revocable, non-exclusive, and nontransferable right to view, download, access, and use the Services in the United States solely for your personal and non-commercial use and only as permitted under these Terms of Use. No other right, title, or interest in or to the Services is transferred to you, and all rights not expressly granted are reserved by Wheel or its licensors. We reserve the right, in our sole discretion, to deny or suspend use of the Services to anyone for any reason. You agree that you will not, and will not attempt to: (a) impersonate any person or entity or otherwise misrepresent your affiliation with a person or entity; (b) use the Services to violate any local, state, national or international law; (c) reverse engineer, disassemble, decompile, or translate any software or other components of the Services; (d) distribute, input, upload, transmit, or otherwise run or propagate any virus, application, Trojan horse, or any other harmful computer code that could damage or alter a computer, portable device, computer network, communication network, data, our Services, or any other system, device, or property; (e) access or use the Services in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any third party; (f) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Services or related materials in any way; (g) use or access the Services to create or develop competing products or services or for any other purpose that is to Wheel’s detriment or commercial disadvantage; (h) take any action or use the Services in any manner which could damage, destroy, disrupt, disable, impair, overburden, interfere with, or otherwise impede or harm in any manner our Services or any content, in whole or in part; (i) disrupt, interfere with, violate the security of, or attempt to gain unauthorized access to our Services or any computer network; (j) bypass, breach, avoid, remove, deactivate, impair, descramble, or otherwise circumvent any security device, protection, or technological measure implemented by Wheel or any of our service providers to protect our Services; (k) remove, delete, alter, or obscure any trademarks, specifications, warranties, or disclaimers, or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from our Services or any content made available to you on or through our Services; (l) use any manual process or automated device to monitor or copy any content made available on or through our Services for any unauthorized purpose except as permitted by this section; (m) copy, duplicate, download, store in a retrieval system, publish, transmit or otherwise reproduce, transfer, distribute, store, disseminate, aggregate, use as a component of or as the basis for a database or otherwise use in any form or by any means any data, text, reports, or other materials related to Wheel or third-party content from the Services; (n) otherwise use the Services in any manner that exceeds the scope of use granted above; or (o) encourage or enable any other individual to do any of the foregoing.

7. Ownership of Site Content

As between Wheel and you, Wheel is the sole and exclusive owner of all right, title, and interest in and to the Services and their content, features and functionality (including, without limitation, all information, software, text, displays, images, video, audio, design, selection, arrangement, and look and feel), other content, and all intellectual property rights therein, and any suggestions, ideas or other feedback provided by you. You are not permitted to reproduce, publish, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store, transmit, sell or participate in any sale of, or exploit in any way, in whole or in part, any of the material on our Services except as generally and ordinarily permitted through the Services according to these Terms of Use. Any copy, modification, revision, enhancement, adaptation, translation, or derivative work of the Services shall be owned solely and exclusively by Wheel or its licensors, including all intellectual property rights therein. You may not access or use for any commercial purposes any part of the Services.

8. Trademarks

Certain names, logos, and other materials displayed in and through the Services may constitute trademarks, trade names, service marks or logos (“Marks”) of Wheel or its affiliates. You are not authorized to use any such Marks without the express written permission of Wheel. Ownership of all such Marks and the goodwill associated therewith remains with us or our affiliates.

9. Links to Third-Party Hyperlinks and Websites

The Services may contain hyperlinks or references to other websites and mobile applications (“Linked Sites”) operated by third parties. The Linked Sites may not be under our control, therefore, we are not responsible for the information, products or services described thereon, or for the content of any Linked Site, including, without limitation, any link contained in a Linked Site, or any changes or updates to a Linked Site. We are providing these Linked Sites to you only as a convenience, and the inclusion of any link does not necessarily imply endorsement, sponsorship, or recommendation of such Linked Site or the content, products, or services on or available from such of the Linked Site or any association with its operators. Your use of these Linked Sites is at your own risk, and we are not liable to you in any way, either directly or indirectly, for any content, errors, damage or loss caused by or in connection with use of or reliance on information contained in or provided to Linked Sites.

You may have arrived at the Services through a Linked Site, including a Linked Site controlled by a parent, subsidiary, or affiliate of Wheel. You understand and agree that we are not responsible for the information, products or services described on those Linked Sites and only these Terms of Use will apply to your use of or access to the Services.

10. Termination

The Terms of Use will remain in full force and effect as long as you continue to access or use the Services. You may terminate the Terms of Use at any time by discontinuing use of the Services. Your permission to use the Services automatically terminates if you violate these Terms of Use.

Wheel may terminate or suspend any of the rights granted by these Terms of Use and your access to and use of the Services with or without prior notice, for any reason, and at any time. The following provisions survive the expiration or termination of these Terms of Use for any reason whatsoever: Disclaimer of Warranties / Limitation of Liability; Indemnification; Governing Law, Dispute Resolution, Arbitration, Venue, Severability of Provisions; No Waiver; and Assignment.

Subject to applicable law, Wheel reserves the right to maintain, delete or destroy all communications and materials posted or uploaded to the Services pursuant to its internal record retention and/or content destruction policies. After such termination, Wheel will have no further obligation to provide the Services.

11. Disclaimer of Warranties / Limitation of Liability

YOU EXPRESSLY AGREE THAT USE OF THE SERVICES AND CONTENT IS AT YOUR SOLE RISK. YOU ACKNOWLEDGE AND AGREE THAT THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. WHEEL AND ITS AFFILIATES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, MANAGERS, PARTNERS, MEMBERS, EMPLOYEES, AND AGENTS (COLLECTIVELY “RELATED PERSONS”) MAKE NO REPRESENTATIONS OR WARRANTIES AND EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES INCLUDING, BUT NOT LIMITED TO, ANY REPRESENTATIONS OR WARRANTIES WITH RESPECT TO MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, NONINFRINGEMENT, TITLE, AVAILABILITY, SECURITY, OPERABILITY, CONDITION, QUIET ENJOYMENT, VALUE, ACCURACY OF DATA, FREEDOM FROM VIRUSES OR MALWARE, COMPLETENESS, TIMELINESS, FUNCTIONALITY, RELIABILITY, SEQUENCING OR SPEED OF DELIVERY OR SYSTEM INTEGRATION. WE MAKE NO WARRANTIES OR REPRESENTATIONS THAT YOUR USE OF THE SERVICES WILL NOT INFRINGE THE RIGHTS OF THIRD PARTIES.

TO THE FULLEST EXTENT OF APPLICABLE LAW, NEITHER WHEEL NOR ITS RELATED PERSONS WILL BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY YOUR RELIANCE ON CONTENT OBTAINED THROUGH THE SERVICES. IT IS YOUR RESPONSIBILITY TO EVALUATE THE ACCURACY, COMPLETENESS, TIMELINESS, RELIABILITY OR USEFULNESS OF THE SERVICES. FURTHERMORE, WHEEL DOES NOT GUARANTEE THAT THE SERVICES WILL BE UNINTERRUPTED, OR FREE FROM ERROR, DEFECT, LOSS, DELAY IN OPERATION, CORRUPTION, CYBER ATTACK, VIRUSES, INTERFERENCE, HACKING, MALWARE, OR OTHER SECURITY INTRUSION, AND WHEEL DISCLAIMS ANY LIABILITY RELATING THERETO.

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE MAXIMUM AGGREGATE LIABILITY OF WHEEL OR THE RELATED PERSONS (JOINTLY) ARISING OUT OF OR IN ANY WAY RELATED TO ACCESS OR USE OF THE SERVICES, EXCEED THE GREATER OF $50 OR THE AMOUNT YOU PAID TO US TO USE THE SERVICES IN THE ONE (1) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH YOUR CLAIM AROSE. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IN THE EVENT YOUR REMEDIES HEREUNDER FAIL OF THEIR ESSENTIAL PURPOSE, AND THE FOREGOING SHALL CONSTITUTE WHEEL AND ITS RELATED PERSONS’ SOLE LIABILITY AND OBLIGATION IN RESPECT HEREOF, REGARDLESS OF THE FORM OF ACTION, WHETHER BASED IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, SIMPLE NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), OR ANY OTHER LEGAL OR EQUITABLE THEORY

12. Indemnification

You agree to indemnify, defend, and hold harmless Wheel and its Related Persons from and against any and all third-party suits, actions, claims, proceedings, damages, settlements, judgments, injuries, liabilities, obligations, losses, risks, costs, and expenses (including, without limitation, reasonable attorneys’ fees, litigation expenses, and accounting fees), relating to or arising from, or alleged to arise from, your use of the Services in an unauthorized manner, fraud, violation of law, or willful misconduct, or any breach by you of these Terms of Use.

13. Modifications to the Services

Wheel reserves the right at any time and for any reason to modify, or temporarily or permanently discontinue, the Services or any portion thereof, with or without notice. You agree that Wheel shall not be liable to you or to any third party for any modification, suspension, or discontinuance of the Services.

14. Governing Law; Dispute Resolution; Arbitration; Venue; Severability of Provisions

PLEASE READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES YOU AND WHEEL TO RESOLVE ALL DISPUTES BETWEEN US THROUGH BINDING INDIVIDUAL ARBITRATION AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM WHEEL.

Except for any disputes, claims, suits, actions, causes of action, demands or proceedings (collectively, “Disputes”) in which either party seeks to bring an individual action in small claims court or seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, including, without limitation, copyrights, trademarks, trade names, logos, trade secrets or patents, YOU AND WHEEL AGREE (A) TO WAIVE YOUR AND WHEEL’S RESPECTIVE RIGHTS TO HAVE ANY AND ALL DISPUTES ARISING FROM OR RELATED TO THESE TERMS, OR THE SERVICES, RESOLVED IN A COURT, AND (B) TO WAIVE YOUR AND WHEEL’S RESPECTIVE RIGHTS TO A JURY TRIAL. Instead, you and Wheel agree to arbitrate Disputes through binding arbitration (which is the referral of a dispute to one or more persons charged with reviewing the dispute and making a final and binding determination to resolve it instead of having the dispute decided by a judge or jury in court) conducted by the American Arbitration Association (“AAA”) under the arbitration rules in effect at the time the arbitration is initiated (the “AAA Rules”) and under the rules set forth in these Terms. If there is a conflict between the AAA Rules and the rules set forth in these Terms, the rules set forth in these Terms will govern.

Unless the parties agree otherwise, the arbitration will be conducted in Travis County, Texas. Each party will be responsible for paying any filing, administrative and arbitrator fees in accordance with the AAA Rules. The award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. ARBITRATION MEANS THAT YOU WAIVE YOUR RIGHT TO A JURY TRIAL. YOU AGREE THAT, BY ENTERING INTO THESE TERMS, YOU ARE WAIVING THE RIGHT TO A TRIAL.

You and Wheel agree that these Terms affect interstate commerce and that the enforceability of this Section 14 shall be both substantively and procedurally governed by and construed and enforced in accordance with the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (the “FAA”), to the maximum extent permitted by applicable law.

YOU AND WHEEL EACH AGREE TO RESOLVE ANY DISPUTES ON AN INDIVIDUAL BASIS AND WAIVE ANY RIGHT TO PURSUE ANY DISPUTES ON A CLASS OR CONSOLIDATED BASIS OR IN A REPRESENTATIVE CAPACITY.

YOU AGREE THAT REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY DISPUTE ARISING OUT OF OR RELATED TO THE SERVICES OR ANY CONTENT MUST BE FILED WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE, OR SUCH DISPUTE WILL BE FOREVER BARRED.

These Terms, and your access to and use of the Services shall be governed by and construed and enforced in accordance with the laws of the State of Texas, without regard to conflict of law rules or principles (whether of the State of Texas or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. Any Dispute between the parties that is not subject to arbitration or cannot be heard in small claims court, shall be resolved on an individual basis in the state or federal courts of the State of Texas and the United States, respectively, sitting in Travis County, Texas.

All parts of these Terms of Use apply to the maximum extent permitted by law. Wheel and you both agree that if we cannot enforce a part of this contract as written, then that part will be replaced with terms that most closely match the intent of the part we cannot enforce, to the extent permitted by law. The invalidity of part of these Terms of Use will not affect the validity and enforceability of the remaining provisions. The section headings are for convenience only and do not have any force or effect.

15. No Waiver

No waiver by Wheel of any term or condition set forth in these Terms of Use shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure by Wheel to assert a right or provision under these Terms of Use shall not constitute a waiver of such right or provision.

16. No Agency Relationship

Neither these Terms of Use, nor any content, materials, or features of the Services create any partnership, joint venture, employment, or other agency relationship between us and you. You may not enter into any contract on our behalf or bind us in any way.

17. Remedies

You agree that any violation, or threatened violation, by you of these Terms of Use constitutes an unlawful and unfair business practice that will cause us irreparable and unquantifiable harm. You also agree that monetary damages would be inadequate for such harm and consent to our obtaining any injunctive or equitable relief that we deem necessary or appropriate. These remedies are in addition to any other remedies we may have at law or in equity.

18. Assignment

You may not assign any of your rights under these Terms of Use, and any such attempt will be null and void. Wheel-affiliated professional entities may, in their individual discretion, transfer, without further consent or notification, all contractual rights and obligations pursuant to these Terms of Use if some or all of the business of Wheel is transferred to another entity by way of merger, sale of its assets or otherwise.