AC WELLNESS NETWORK LLC
AC WELLNESS FOR iOS SOFTWARE LICENSE AGREEMENT
Last Updated: February 2023
PLEASE READ THIS SOFTWARE LICENSE AGREEMENT ("LICENSE" OR “TERMS”) CAREFULLY BEFORE USING THE AC WELLNESS SOFTWARE (AS DEFINED BELOW). BY USING THE AC WELLNESS SOFTWARE, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS LICENSE. IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENSE, DO NOT INSTALL AND/OR USE THE SOFTWARE.
AC Wellness Network LLC is licensing the AC Wellness Software (as defined below) to you for your use as a patient or client of one or more professional corporations or other medical service providers affiliated with AC Wellness Network LLC (the “Medical groups,” and together with AC Wellness Network LLC, “AC Wellness”). The AC Wellness Software is provided AS-IS and AC Wellness does not guarantee that the AC Wellness Software will function properly at all times.
IN THE EVENT OF A MEDICAL EMERGENCY, PLEASE CALL EMERGENCY SERVICES.
1. General.
A. These Terms govern your access to and use of the following, which are collectively referred to herein as the “Services”: (a) the health care services accessed through the AC Wellness Software and provided by licensed health care providers employed by or contracted with the Medical Group(s) (“ACW Healthcare Professionals”); (b) the health and wellness coaching services provided through the AC Wellness Software and offered by AC Wellness health coaches (collectively, the “AC Wellness Coaches”); (c) the AC Wellness Software; and (d) any other services owned or operated by AC Wellness which link to these Terms.
B. The AC Wellness for iOS software, and any third party software, documentation, interfaces, content, fonts and any data accompanying this License whether in read only memory, on any other media or in any other form (collectively the "AC Wellness Software") are licensed, not sold, to you by AC Wellness Network LLC, a subsidiary of Apple Inc. (“Apple”), for use only under the terms of this License. AC Wellness and/or AC Wellness’s licensors retain ownership of the AC Wellness Software itself and reserve all rights not expressly granted to you.
C. AC Wellness, at its discretion, may make available future upgrades or updates to the AC Wellness Software for your compatible Apple-branded iOS device. The AC Wellness Software upgrades and updates, if any, may not necessarily include all existing software features or new features that AC Wellness releases for newer or other models of iOS devices. The terms of this License will govern any software upgrades or updates provided by AC Wellness to the original AC Wellness Software product, unless such upgrade or update is accompanied by a separate license in which case you agree that the terms of that license will govern such upgrade or update.
D. The Services are continually under development, and AC Wellness reserves the right to change or modify these Terms at any time in its sole discretion. If AC Wellness makes changes to these Terms, it will provide notice through the Services or by updating the “Last Updated” date at the beginning of these Terms. You should check the Terms prior to using the Services to determine whether any changes have been made. Any changes to these Terms will be effective upon posting. 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. Permitted License Uses and Restrictions.
A. License. Subject to the terms and conditions of this License and as permitted in the “Services and Content Usage Rules” set forth in the Apple Media Services Terms and Conditions (http://www.apple.com/legal/internet-services/itunes/us/terms.html) (“Usage Rules”), you are granted a limited, non-transferable, non-exclusive license to install and use the AC Wellness Software on any compatible Apple-branded iOS device that you own or control. You may not distribute or make the AC Wellness Software available over a network where it could be used by multiple devices at the same time. You may not rent, lease, lend, sell, redistribute or sublicense the AC Wellness Software.
B. System Requirements; Other Limitations. AC Wellness Software is supported only on Apple-branded hardware that meets specified system requirements as indicated by AC Wellness. The AC Wellness Software is not available in all languages, and it is only intended for use in the United States.
C. Content and Digital Materials. Title and intellectual property rights in and to any content displayed by or accessed through the AC Wellness Software belong to the respective content owner. Such content may be protected by copyright or other intellectual property laws and treaties, and may be subject to terms of use of the third party providing such content. Except as otherwise provided in this License, (i) this License does not grant you any rights to use such content nor does it guarantee that such content will continue to be available to you and (ii) you may not use, extract or distribute, commercially or otherwise, on a standalone basis, any photographs, images, graphics, artwork, audio, video or similar assets (“Digital Materials”) contained within, or provided as a part of, the AC Wellness Software, or otherwise use the Digital Materials outside the context of its intended use as part of the AC Wellness Software.
D. No Reverse Engineering. You may not, and you agree not to or enable others to, copy (except as expressly permitted by this License or by the Usage Rules if they are applicable to you), decompile, reverse engineer, disassemble, attempt to derive the source code of, decrypt, modify, or create derivative works of the AC Wellness Software or any services provided by the AC Wellness Software, or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of open-sourced components included with the AC Wellness Software).
E. Compliance with Laws. You agree to use the Services in compliance with all applicable laws, including local laws of the country or region in which you reside or in which you download or use the AC Wellness Software.
F. Third Party Software. AC Wellness may provide access through the AC Wellness Software to certain third-party software or services as a convenience. To the extent that the AC Wellness Software contains or provides access to any third-party software or services, AC Wellness has no express or implied obligation to provide any technical or other support for such third party software or services. Please contact the appropriate software vendor, manufacturer or service provider directly for technical support and customer service related to its software, service and/or products.
G. Automatic Updates. If you choose to allow automatic app updates, your device will periodically check with Apple for updates and upgrades to the AC Wellness Software and, if an update or upgrade is available, the update or upgrade will automatically download and install onto your device and, if applicable, your peripheral devices. You can turn off the automatic app updates altogether at any time by changing the automatic app updates settings found within Settings.
H. No Substitution for Medical Advice. The AC Wellness Software is not a medical device and should not be used as a substitute for qualified medical advice or treatment or advice from any other qualified health care provider. It is not designed or intended for use in the diagnosis of disease or other conditions, or in the cure, mitigation, treatment, or prevention of any condition or disease. Please consult your healthcare provider prior to making any decisions related to your health, including decisions regarding the safety or advisability of activity-related challenges recommended or otherwise made available by the AC Wellness Software.
3. Consent to Use of Data. At all times your information will be treated in accordance with the applicable AC Wellness consents and notices provided to you through the AC Wellness Software, which you must sign or otherwise acknowledge before receiving the Services, and the Medical Group’s Privacy Policy, which can be viewed at: acwellness.com/privacy-policy.
4. Telehealth Services. You understand that you are under no obligation to use the AC Wellness Software to obtain medical care. By accessing or using the Software for such purposes, you represent and warrant that: (A) you are age 18 or over; and (b) you are located in a state where AC Wellness operates. You further acknowledge and agree to the following terms and conditions:
A. Risks. You understand that use of the AC Wellness Software has risks associated with it, such as: (a) information that you transmit through the AC Wellness Software may be insufficient to allow for appropriate medical decision-making (e.g., poor resolution of transmitted images); (b) failures of equipment (e.g., servers, devices) or infrastructure (e.g., communications lines, power supply) may cause delays in medical evaluation and treatment, or loss of information; and (c) unauthorized access to your medical information. You acknowledge that, although AC Wellness strives to prevent unauthorized access to information about you through encryption of information transmitted by the AC Wellness Software and other security measures, AC Wellness cannot guarantee that your use of the AC Wellness Software and the information will be private or secure, and you consent to this risk. You understand and consent to the risks associated with your use of the AC Wellness Software.
You acknowledge and agree that you are solely responsible for ensuring that the information submitted by you through the AC Wellness Software is accurate, complete and current. You understand that the ACW Healthcare Professional will rely on this information, which may be used to diagnose and prepare a treatment plan for your medical condition and your failure to provide accurate, complete and current information may lead to a delay in your treatment or a misdiagnosis.
You understand that your ACW Healthcare Professional will not be actively monitoring the information transmitted through the AC Wellness Software; if you record an abnormal health result or otherwise receive an alert to seek care, you should contact your health care provider or go to an urgent care clinic or emergency room as appropriate.
B. Communications. By accepting these Terms, you agree and consent to AC Wellness 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 AC Wellness sends to you electronically will satisfy any legal communication requirements, including, but not limited to, that such communications be in writing. You acknowledge and agree that you will not hold AC Wellness 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 the treatment recommendations contained in these communications.
C. Limited Use. You represent and acknowledge that: (i) you may use the AC Wellness Software only as set forth in this License, and (ii) you may not provide access to the AC Wellness Software to any other person.
D. Healthcare Professionals. All ACW Healthcare Professionals providing licensed professional services through the Medical Group(s) hold the necessary professional licenses issued by the professional licensing boards or agencies in the states where they provide care. You can report a complaint relating to the care provided by an ACW Healthcare Professional by contacting the professional licensing board in the state where the care was received.
5. Services and Third Party Materials
A. General. The AC Wellness Software may enable access to AC Wellness and third party services and web sites. Use of these Services requires Internet access, and may require your existing Apple or AC Wellness credentials or the creation of a new user account with a third party, which may require you to accept additional terms and may be subject to additional fees.
B. Content. You understand that by using any of the Services, you may encounter content that may be deemed offensive, indecent, or objectionable, which content may or may not be identified as having explicit language. Nevertheless, you agree to use the Services at your sole risk and that AC Wellness shall have no liability to you for content that may be found to be offensive, indecent, or objectionable.
C. Third Party Materials. Certain Services may display, include or make available content, data, information, applications or materials from third parties (“Third Party Materials”) or provide links to certain third party web sites. By using the Services, you acknowledge and agree that AC Wellness is not responsible for examining or evaluating the content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of such Third Party Materials or web sites. Neither Apple nor AC Wellness, their respective officers, affiliates and subsidiaries warrant or endorse and do not assume and will not have any liability or responsibility to you or any other person for any third-party Services, Third Party Materials or web sites, or for any other materials, products, or services of third parties. Third Party Materials and links to other web sites are provided solely as a convenience to you.
D. Credentials and Account Information. You understand that when using any of the Services, you are solely responsible for maintaining the confidentiality and security of your account credentials and are responsible for all use of your account. You agree to immediately notify AC Wellness if you suspect any unauthorized use of, or access to, your account or password. You further acknowledge and agree that the Services are designed and intended for personal use on an individual basis and that you should not share your account and/or password details with anyone. Provided AC Wellness has exercised reasonable skill and due care, AC Wellness shall not be responsible for any losses arising out of the unauthorized use of your account resulting from your failure to keep your account information secure and confidential.
E. User-Provided Content. To the extent that you upload any content through the use of the Services, you represent that you own all rights in, or have authorization or are otherwise legally permitted to upload, such content and that such content does not violate any terms of service applicable to the Services.
F. Proprietary Content and License Restrictions. You agree that the Services contain proprietary content, information and material, including but not limited to any Digital Materials, that is owned by AC Wellness, the site owner and/or their licensors, and is protected by applicable intellectual property and other laws, including but not limited to copyright. You agree that you will not use such proprietary content, information or materials other than for permitted use of the Services or in any manner that is inconsistent with the terms of this License or that infringes any intellectual property rights of a third party, Apple or AC Wellness. No portion of the Services may be reproduced in any form or by any means. You agree not to modify, rent, lease, loan, sell, distribute, or create derivative works based on the Services, in any manner, and you shall not exploit the Services in any unauthorized way whatsoever, including but not limited to, using the Services to transmit any computer viruses, worms, trojan horses or other malware, or by trespass or burdening network capacity. You further agree not to use the Services in any manner to harass, abuse, stalk, threaten, defame or otherwise infringe or violate the rights of any other party, and that AC Wellness is not in any way responsible for any such use by you, nor for any harassing, threatening, defamatory, offensive, infringing or illegal messages or transmissions that you may receive as a result of using any of the Services.
G. No Representation and Reservation of Rights. In addition, Services and Third Party Materials that may be accessed, linked to or displayed through the AC Wellness Software are not available in all languages or in all countries or regions. AC Wellness makes no representation that such Services and Third Party Materials are appropriate or available for use in any particular location. To the extent you choose to use or access such Services and Third Party Materials, you do so at your own initiative and are responsible for compliance with any applicable laws, including but not limited to applicable local laws and privacy and data collection laws. AC Wellness and its licensors reserve the right to change, suspend, remove, or disable access to any Services at any time without notice. In no event will AC Wellness be liable for the removal of or disabling of access to any such Services. AC Wellness may also impose limits on the use of or access to certain Services, in any case and without notice or liability.
H. iCloud Services. If you choose to use the iCloud services through the AC Wellness Software (if available), such use is subject to the iCloud Terms and Conditions available at https://www.apple.com/legal/internet-services/icloud/.
6. Termination. These Terms will remain in full force and effect as long as you continue to access or use the Services. You may terminate the License at any time by discontinuing use of the Services. Your permission to use the Services automatically terminates if you violate these Terms. AC Wellness may terminate or suspend any rights granted by these Terms and your access to and use of the Services with or without prior notice, for any reason, and at any time. Upon the termination of this License, you shall cease all use of the AC Wellness Software and destroy all copies, full or partial, of the AC Wellness Software. Sections 2C, 2D, 2E, 2F, 3, 4, 5, 6, 7, 8, 9, 10 and 11 of this License shall survive any such termination.
7. Disclaimer of Warranties.
A. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, USE OF THE AC WELLNESS SOFTWARE AND ANY SERVICES PERFORMED BY OR ACCESSED THROUGH THE AC WELLNESS SOFTWARE IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU.
B. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE AC WELLNESS SOFTWARE AND SERVICES ARE PROVIDED "AS IS" AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND AC WELLNESS, APPLE INC., AND AC WELLNESS'S LICENSORS (COLLECTIVELY REFERRED TO AS "AC WELLNESS" FOR THE PURPOSES OF SECTIONS 7 AND 8) HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE AC WELLNESS SOFTWARE AND SERVICES, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS.
C. AC WELLNESS DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE AC WELLNESS SOFTWARE AND SERVICES, THAT THE FUNCTIONS CONTAINED IN, OR SERVICES PERFORMED OR PROVIDED BY, THE AC WELLNESS SOFTWARE WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE AC WELLNESS SOFTWARE OR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT ANY SERVICES WILL CONTINUE TO BE MADE AVAILABLE, THAT THE AC WELLNESS SOFTWARE OR SERVICES WILL BE CORRECTED, OR THAT THE AC WELLNESS SOFTWARE WILL BE COMPATIBLE OR WORK WITH ANY THIRD PARTY SOFTWARE, APPLICATIONS OR THIRD PARTY SERVICES. INSTALLATION OF THIS AC WELLNESS SOFTWARE MAY AFFECT THE AVAILABILITY AND USABILITY OF THIRD PARTY SOFTWARE, APPLICATIONS OR THIRD PARTY SERVICES, AS WELL AS APPLE PRODUCTS AND SERVICES.
D. YOU FURTHER ACKNOWLEDGE THAT THE AC WELLNESS SOFTWARE AND SERVICES ARE NOT INTENDED OR SUITABLE FOR USE IN SITUATIONS OR ENVIRONMENTS WHERE THE FAILURE OR TIME DELAYS OF, OR ERRORS OR INACCURACIES IN THE CONTENT, DATA OR INFORMATION PROVIDED BY, THE AC WELLNESS SOFTWARE OR SERVICES COULD LEAD TO DEATH, PERSONAL INJURY, OR PHYSICAL OR ENVIRONMENTAL DAMAGE, INCLUDING WITHOUT LIMITATION THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, LIFE SUPPORT OR WEAPONS SYSTEMS.
E. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY AC WELLNESS OR AN AC WELLNESS AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE AC WELLNESS SOFTWARE OR SERVICES PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU.
8. Indemnification and Limitation of Liability.
A. Indemnification. You agree to indemnify and hold AC Wellness, its officers, directors, employees, shareholders, affiliates, third-party contractors, agents, licensors and suppliers harmless from and against any claims, actions or demands, losses, liabilities, damages, costs, expenses and settlements (including without limitation reasonable attorney fees), resulting from or alleged to result from, directly or indirectly, your: (a) violation of these Terms; (b) access to or use of the Services in an unauthorized manner; or (c) willful misconduct, fraud, or violation of law.
B. Limitation of Liability. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, IN NO EVENT SHALL AC WELLNESS BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, CORRUPTION OR LOSS OF DATA, FAILURE TO TRANSMIT OR RECEIVE ANY DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE AC WELLNESS SOFTWARE AND SERVICES OR ANY THIRD PARTY SOFTWARE OR APPLICATIONS IN CONJUNCTION WITH THE AC WELLNESS SOFTWARE, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF AC WELLNESS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. In no event shall AC Wellness's total liability to you for all damages (other than as may be required by applicable law in cases involving personal injury) exceed the amount of fifty dollars ($50.00). The foregoing limitations will apply even if the above stated remedy fails of its essential purpose.
9. Export Control. You may not use or otherwise export or re-export the AC Wellness Software except as authorized by United States law and the laws of the jurisdiction(s) in which the AC Wellness Software was obtained. In particular, but without limitation, the AC Wellness Software may not be exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List or any other restricted party lists. By using the AC Wellness Software, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use the AC Wellness Software for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons.
10. Controlling Law and Severability. This License will be governed by and construed in accordance with the laws of the State of California, excluding its conflict of law principles. This License shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. If for any reason a court of competent jurisdiction finds any provision, or portion thereof, to be unenforceable, the remainder of this License shall continue in full force and effect.
11. Complete Agreement; Governing Language. This License constitutes the entire agreement between you and AC Wellness relating to the AC Wellness Software, and supersedes all prior or contemporaneous understandings regarding such subject matter. No amendment to or modification of this License will be binding unless in writing and signed by AC Wellness. Any translation of this License is done for local requirements and in the event of a dispute between the English and any non-English versions, the English version of this License shall govern, to the extent not prohibited by local law in your jurisdiction.
12. No Waiver. No waiver by AC Wellness of any term or condition set forth in these Terms 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 AC Wellness to assert a right or provision under these Terms shall not constitute a waiver of such right or provision.
13. Assignment. You may not assign any of your rights under these Terms, and any such attempt will be null and void. AC Wellness may, in its individual discretion, transfer, without further consent or notification, all contractual rights and obligations pursuant to these Terms if some or all of the business is transferred to another entity by way of merger, sale of its assets, or otherwise.
EA1832
Rev. 2/28/2023