Terms and Conditions – Canada

Effective: August 1, 2018

1   OUR TERMS

1.1   IMPORTANT — THIS AGREEMENT (“AGREEMENT”) IS A LEGAL AGREEMENT BETWEEN YOU (EITHER AN INDIVIDUAL OR ENTITY) (“YOU” OR “YOUR”) AND BLU WELLBEING, INC. (HEREINAFTER “BLU WELLBEING,” “WE”, “US” OR “OUR”) THAT SETS FORTH THE LEGAL TERMS AND CONDITIONS FOR YOUR ACCESS TO AND USE OF WWW.BLUWELLBEING.COM AND ANY OTHER WEBSITE OWNED AND OPERATED BY BLU WELLBEING (THE “WEBSITE(S)” OR “SITE(S)”) AND ANY BLU WELLBEING SOFTWARE, INCLUDING ANY BLU WELLBEING MOBILE APPLICATIONS (THE “APP(S)”) OR OTHER SERVICES OFFERED BY BLU WELLBEING, ITS SUBSIDIARIES AND/OR AFFILIATES, FROM TIME TO TIME A (COLLECTIVELY, THE WEBSITE(S), APP(S) AND SERVICES ARE REFERRED TO AS “SERVICE(S)”).

1.2   Why should you read these Terms? These terms create a legally binding agreement between you and us. By accessing or using the Site, you are accepting this Agreement and agreeing to use the Services in accordance with the terms and conditions in this Agreement. Some of our Services may have additional rules, policies, and procedures. Where such additional terms apply, we will make them available for you. A copy of these Terms and Conditions may be downloaded, saved and printed for your reference.

1.3   You confirm that you can enter the Agreement. As a condition of your use of the Services, you confirm and warrant to us that you meet the eligibility requirements set out in Section 4.3 and have the right, authority, and capacity to enter into these terms or, if you are under the age of majority in your jurisdiction of residence, you have obtained the consent of your parent or legal guardian to this Agreement.

1.4   Which provisions of the terms should you pay particular attention to? The key terms that you should consider in particular detail are: 3. Changes to the Site and these Terms; 8. Purchases, Payments, Cancellation, and Rescheduling; 10. Our responsibility for loss or damage; and 12. Account Suspension or Termination…

1.5   What to do if you don’t want to accept these terms? If you do not agree with all of the provisions of these terms, do not access and/or use the Services.

2   Information about Blu Wellbeing and contact details

2.1   Who we are. Blu Wellbeing Quebec, Inc. is a Montreal based company.

2.3   How to contact us. You can contact us by calling us on 1 (833) 276 6843.

2.4   How we may contact you. If we have to contact you we may do so by telephone, text or by email to the number and/or address you provided when you registered for an Account.

2.5   Email counts as “in writing”. When we use the words “writing” or “written” in these Terms, this includes emails. For contractual purposes, you consent to receiving communications from Blu Wellbeing by email.

3   Changes to the Site and these Terms

3.1   Small changes.We reserve the right to change the terms and conditions of this Agreement or to modify or discontinue the Services offered by Blu Wellbeing at any time. Those changes will go into effect on the effective date shown in the revised agreement. If we change this Agreement, we will give you notice by posting the revised agreement on the applicable website(s) and sending an email notice to you using the contact information provided by you. Therefore, you agree to keep your contact information up-to-date and that notice sent to the last email address you provided shall be considered effective. We also encourage you to check this Agreement from time to time to see if it has been updated.

3.2   More significant changes. In addition, we may make more significant changes to the Site and/or these Terms, but if we do so and these changes materially or adversely impact your rights or use of the Site, we will notify you by email of such changes using the contact information provided by you. We may require you to provide consent to the updated agreement before further use of the Services is permitted. By continuing to use any Services after the new effective date, you agree to be bound by such changes. If the modified terms are not acceptable to you, please cease using the Services.

4   Service Description and Participation/Account Creation/Eligibility/Referrals and Promotions

4.1   Service Description and Participation. Blu Wellbeing provides an online platform that allows individuals to make purchases of Blu Wellbeing-branded merchandise, and connects massage therapists (“Therapists”) with individuals (“Individual Customers”) or businesses (“Corporate Customers”) that want to purchase and/or receive massage therapy, together herein referred to as (“Customers”). As a user of the Services (including a Therapist or a Customer), you agree to provide us with complete and accurate information (if requested) and to update such information to keep it accurate, current and complete, including with regard to payment information. By purchasing such Services and providing payment information, you represent that you are authorized to utilize the payment method presented and agree to pay the specified fee for Services, including any method offered or used through a mobile application. Furthermore, you agree and authorize us to, from time to time, and to the maximum extent permitted by law: (i) submit a transaction using the card information provided, (ii) in the case of automatic recurring transactions, submit a transaction on a recurring basis (e.g., monthly or yearly basis) for membership renewals, (iii) if necessary, obtain updates from card issuers for cards provided to us, (iv) if necessary, bill you, in a prorated manner (including with regard to cancellation of Services, for which you may not be entitled to a full or complete refund), in accordance with the particular fee terms for the Service you are purchasing when a recurring basis transaction is at issue, (v) if necessary (and applicable) bill your mobile carrier or others via a mobile application if you authorize us to do so; (vi) communicate with you about your account and/or subscription via email, text message, push notification or other means, including to confirm that your appointment has been booked. You understand that any personal information you provide will be treated in accordance with Blu Wellbeing’s Privacy Policy available at https://www.bluwellbeing.com/legal/privacy/. YOU UNDERSTAND AND AGREE THAT BLU WELLBEING HAS NO CONTROL OVER THE CONDUCT OF THE THERAPISTS OR CUSTOMERS.

4.2   Account Creation. In order to access certain features of the Website and to use certain Services, you may be required to register to create an account (“Account”). In connection with setting up your Account with Blu Wellbeing, we may supply you with a user identification and/or password. In connection with any future use, you may be asked to input your user identification and/or password from time to time. You agree to be responsible for all activity that occurs under your Account and agree to be responsible for maintaining the security of your password and user identification. You agree to immediately notify Blu Wellbeing of any unauthorized use of your user identification or password or any other breach of security. You can delete your Account at any time, for any reason, by calling Blu Wellbeing at 1-866-238-5709.

4.3   Eligibility. Persons under 18 are prohibited from providing personal information on our Websites or via our Apps. If you are under the age of majority in your jurisdiction of residence, you may use the Services only with the involvement of your parent or guardian. Make sure that you review these terms with your parent or guardian so that you both understand all your rights and responsibilities. If you are under the age of majority in your jurisdiction of residence, you represent and warrant that you have obtained the consent of your parent or legal guardian to this Agreement.

4.4   Referral Credits. We offer credits for referring new users. To qualify for a referral credit, you must refer a new user who establishes a Blu Wellbeing Account and reserves and completes a service within [ninety (90)] days of signing up for an account. Please note that referral credits are given for the purpose of attracting brand new users to Blu Wellbeing. You may earn only one referral bonus per new user referred, and the value of your referral bonuses may not exceed one thousand five hundred dollars CDN ($1,500). Please ensure that you only provide us with email addresses of individuals with whom you have a personal or family relationship and who would want to receive the referral. We will send one email to the email recipients on your behalf.

4.5   Promotional Codes. We may, in our sole discretion, create promotional codes that may be redeemed for credit in your Account, or other features or benefits related to the Services, subject to any additional terms that we establish on a per promotional code basis (“Promo Codes”). Promo Codes may only be used once per person. [Each Promo Code may only be redeemed once per account. Promo Codes for duplicate benefits will be voided.] Only Promo Codes sent to you through official Blu Wellbeing communications channels are valid. You agree that Promo Codes: (i) must be used for the intended audience and purpose, and in a lawful manner; (ii) may not be duplicated, sold, or transferred in any manner, or made available to the general public (whether posted to a public forum or otherwise), unless expressly permitted by us; (iii) may be disabled by us at any time for any reason without liability to us; (iv) may only be used pursuant to the specific terms that we establish for such Promo Code; (v) are not valid for cash; and (vi) may expire prior to your use.

4.6   Reservation of Rights. We reserve the right to withhold or deduct credits or other features or benefits obtained through the use of Promo Codes by you or any other user in the event we determine or form a suspicion that the use or redemption of the Promo Code or the provision of any referral credit was in error, fraudulent, illegal, or in violation of the applicable Promo Code terms or the terms of this Agreement. Once you have redeemed a Promo Code or used any credit in your Account to purchase Services, no further promotional value adjustments or credits will be issued for any reason, including but not limited to, dissatisfaction with the Services.

4.7   Promotional Discounts. From time to time, Blu Wellbeing may offer promotional discounts in the form of massage credits when you purchase a massage series. Such promotional discounts may only be available in certain jurisdictions. You must purchase the promotional discount before the expiration of the promotional discount period, but your credits may be used at any time. A limited quantity of promotional discounts may be available during any single promotional period. Promotional discounts are nontransferable, nonrefundable, not for resale, and not redeemable for cash or gift cards. Promotional discounts are good only for massage credits. Additional terms and conditions may apply and will be made available to you during any promotional discount period.

5   Gift Cards – for specific terms relating to Blu Wellbeing gift cards, please click here https://www.bluwellbeing.com/giftcardterms/.

6   Acceptable Use

6.1   You are responsible for your use of the Services, and for any use of the Services made using your Account. Our goal is to create a positive experience in connection with our Services. To promote this goal, we prohibit certain kinds of conduct that may be harmful to other users or to Blu Wellbeing.

6.2   If you are a Therapist or Customer, you agree not to attempt to contact each other directly about the Services outside of the Services for a period of 6 months after the date of your last visit to the Services, except as may be permitted by these Terms or Blu Wellbeing, or otherwise circumvent your relationship with Blu Wellbeing

6.3   When you use the Services, you agree that you will not:

(a)   violate this Agreement or any Blu Wellbeing rules regarding use of the Services;

(b)   violate any law or regulation;

(c)   breach any agreements you enter into with any third parties;

(d)   violate, infringe, or misappropriate other people’s intellectual property, privacy, publicity, or other legal rights;

(e)   engage in any behavior that is abusive, harassing, indecent, profane, obscene, hateful or otherwise objectionable, including sexual misconduct;

(f)   stalk, harass, or harm another individual;

(g)   for the purpose of misleading others, create a false identity of the sender or the origin of a message, forge headers or otherwise manipulate identifiers in order to disguise the origin of any material transmitted through the Services or in connection with Blu Wellbeing;

(h)   impersonate any person or entity or perform any other similar fraudulent activity;

(i)   harvest or otherwise collect or store any information (including personally identifiable information) about other users of the Services, including e-mail addresses, without the express consent of such users or alter transmission data;

(j)   collect, distribute or gather personal or aggregate information, including Internet, e-mail or other electronic addresses, about Blu Wellbeing’s customers or other users;

(k)   upload, post, e-mail or otherwise transmit any material that constitutes unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation or commercial electronic message;

(l)   use any means to scrape or crawl any Web pages or Content contained in the Websites (although Blu Wellbeing may allow operators of public search engines to use spiders to index materials from the Websites for the sole purpose of creating publicly available searchable indices of the materials, and Blu Wellbeing reserves the right to revoke these exceptions either generally or in specific cases);

(m)   attempt to circumvent any technological measure implemented by Blu Wellbeing or any of Blu Wellbeing’s providers or any other third party (including another user) to protect the Websites; to the extent permitted by applicable law, attempt to decipher, decompile, disassemble, or reverse engineer any of the software used to provide the Websites; or

(n)   advocate, encourage, or assist any third party in doing any of the foregoing.

8   Purchases, Payments, Cancellation and Rescheduling

8.1   Pricing and Fees. If you wish to purchase any services through the Website (“Services”), you will be required to supply certain information applicable to your purchase, including payment, billing, contact, and other information. Any such information will be treated as described in our Privacy Policy. All information that you provide to us or our third party payment processor must be accurate, current and complete. YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL RIGHT TO USE ANY CREDIT CARDS OR OTHER PAYMENT MEANS USED TO INITIATE ANY TRANSACTION. You agree to pay all charges incurred by you or any users of your account and credit card (or other applicable payment mechanism) at the prices in effect when such charges are incurred. You will also be responsible for paying any applicable taxes relating to your purchases. Verification of information applicable to a purchase may be required prior to our acceptance of any order. The price of the product or service will be the price indicated on the order pages when you placed your order. We use our best efforts to ensure that the price and payment terms advised to you is correct. However please see Section 8.2 for what happens if we discover an error in the price of your order. All payments, including with respect to cancelled Services or returned Products, shall be subject to the terms set forth in Section 4.1 above. Further, as a Customer, you may elect to tip your Therapist. You acknowledge that Blu Wellbeing does not determine or mandate any such tip or gratuity amount and you hereby agree to pay the amount you authorize as a tip for your Therapist.

8.3   When you must pay and how you must pay. You agree to pay all charges incurred by you or any users of your Account and payment card (or other applicable payment mechanism) at the amounts in effect when such charges are incurred. Customers must provide Blu Wellbeing with a valid credit or debit card (Visa, MasterCard, or any other accepted issuer) or use Apple Pay or any other payment or financial mechanism specified by Blu Wellbeing (“Payment Provider”) as a condition to making any payments. Therapists must support the use of the Payment Providers and provide Blu Wellbeing with valid bank account information (e.g. account and routing number) as a condition to receiving any payments. The Customer’s Payment Provider agreement governs its use of the designated credit or debit card or other mechanism, and the Customer should refer to that agreement and not this Agreement to determine its rights and liabilities. Blu Wellbeing uses Stripe as the third-party service provider for payment services (e.g., card acceptance, merchant settlement, and related services). By paying for the Services, you agree to be bound by Stripe’s Privacy Policy: https://stripe.com/ca/privacy/ and hereby consent and authorize us and Stripe to share any information and payment instructions you provide with Payment Provider(s) to the minimum extent required to complete your transactions. All information that you provide to us or our third party payment processors must be accurate, current and complete. You will also be responsible for paying any applicable taxes relating to payments that you make or that you receive. While you may cancel your Service at any time, you may not be eligible for a full refund (or for a prorated refund) depending upon the terms relating to your Service found in the applicable order pages, to the maximum extent permitted by law.

8.4   Shipments. Blu Wellbeing currently only ships products to addresses within the 48 contiguous United States. When you place an order, we will confirm your address by sending an email to the email address you provided when you placed your order. Your placement of an order through our Website is an offer to purchase the products and/or services ordered and we may accept your order by processing your payment and shipping the products or making available your purchased services. Your receipt of an electronic or other form of order confirmation does not signify our acceptance of your order, nor does it constitute confirmation of our offer to sell. For any reason, we may decline to accept your order or any part of your order. No order will be considered accepted by Blu Wellbeing until the product(s) has been shipped or service(s) made available. If some of products in your order are temporarily out of stock, we will ship the available products only and notify you of any products that cannot be fulfilled. If we decline to accept your order, we will attempt to notify you at the email address you provided. We further reserve the right any time after receipt of your order, without prior notice to you, to supply less than the quantity you ordered of any item. We may require additional verifications or information before accepting any order.

8.5   Returns. A Product is deemed irrevocably accepted upon your use of the Product. You may return purchased products that have not been opened or used within thirty (30) days for a refund of the purchase price for such returned product. You will be responsible for all shipping and handling charges in connection with any return.

8.6   What happens if we got the price wrong?. It is always possible that, despite our best efforts, some of the Services may be incorrectly priced. We will normally check prices before accepting your order so that, where the correct price at your order date is less than our stated price at your order date, we will charge the lower amount. If the correct price at your order date is higher than the price stated to you, we will contact you for your instructions before we accept your order.

8.7   What if I think I was charged incorrectly. You must notify us in writing within seven (7) days after receiving your credit card statement, if you dispute any of our charges on that statement or such dispute will be deemed waived. Billing disputes should be notified to the following address: info@bluwellbeing.com.

8.8   For Therapists. Each Therapist hereby appoints Blu Wellbeing as the Therapist’s limited payment collection agent solely for the purpose of accepting applicable payment from Customers. Each Therapist agrees that payment made by a Customer through Blu Wellbeing shall be considered the same as a payment made directly to the Therapist, and the Therapist will provide its services to the Customer in the agreed-upon manner as if the Therapist has received the payment. Blu Wellbeing reserves the right to charge the Therapist a commission on the fees paid by a Customer to the Therapist for the provision of Therapist’s services (“Blu Wellbeing Commission”). Each Therapist understands that Blu Wellbeing accepts payments from Customers as the Therapist’s limited payment collection agent and that Blu Wellbeing’s obligation to pay the Therapist is subject to and conditional upon successful receipt of the associated payments from Customers. Blu Wellbeing does not guarantee payments to Therapists for amounts that have not been successfully received by Blu Wellbeing from Customers. In accepting appointment as the limited payment collection agent of the Therapist, Blu Wellbeing assumes no liability for any acts or omissions of the Customers. Each Customer acknowledges and agrees that Blu Wellbeing reserves the right, in its sole discretion, to charge Customer for and collect fees from the Customer. In the event a Customer elects to tip the Therapist for the provision of services, the Customer will be charged for such tip amount designated by Customer. Tips will not be subject to any Blu Wellbeing Commission. Blu Wellbeing reserves the right at its discretion to cancel or reverse any payment, even if it has been previously confirmed by Blu Wellbeing, as a result of any mistake or error, including any mistaken pricing or service description or other error.

8.9   What if I need to reschedule or cancel my appointment. If you are a Therapist or Customer, you agree to Blu Wellbeing’s cancellation and rescheduling policy and the associated charges and payments, the terms of which are located here https://www.bluwellbeing.com/cancellation and are incorporated herein by reference.

9   Ownership & Copyright

9.1   Ownership. The parties agree that all proprietary rights in the Services are and will remain the property of Blu Wellbeing. This includes non-personally identifiable aggregate data collected by Blu Wellbeing in connection with providing the Services, including usage statistics and traffic patterns, any and all rights, title and interest to which are hereby assigned to Blu Wellbeing by you.

9.2   Copyright Restrictions.

9.3   Copyright Permission. Permission is granted for viewing the Website pages and Content on the Internet and via the Apps for your own informational purposes, subject to the terms and conditions of this Agreement. In the event that information is downloaded from the Websites or Apps, the information, including any Content, data or files incorporated in or generated by the Websites or Apps are owned by Blu Wellbeing and Blu Wellbeing retains complete title to the information and all property rights therein. All other rights are reserved. Reproduction of multiple copies of the Content, in whole or in part, for resale or distribution, is strictly prohibited except with the prior written permission of Blu Wellbeing. To obtain written consent for such reproduction, please contact us at info@bluwellbeing.com.

9.4   Content License. As part of the Services, we may, if our sole discretion, permit you to post, upload, publish, submit or transmit certain content (“Your Materials”). We may also post a photograph or other visual likeness of you (“Your Image”). By making available any of Your Materials on or through the Services or if we make available Your Image on or through the Services, you (i) hereby grant to Blu Wellbeing the right to use Your Materials and Your Image as necessary to provide the Services, promote the Services and improve the Services, and (ii) waive any and all moral rights that you may have in and to Your Materials and Your Image with respect to these uses. Blu Wellbeing does not claim any ownership rights in any of Your Materials and nothing in this Agreement will be deemed to restrict any rights that you may have to use and exploit any of Your Materials. If you do not want to grant us permission to use Your Material or Your Image in accordance with this Agreement, please do not post, upload, publish, submit or transmit Your Materials or Your Image.

9.5   Copyright Policy. You acknowledge and agree that you are solely responsible for all of Your Materials that you make available through the Services. You represent and warrant that: (1) you either are the sole and exclusive owner of all of Your Materials that you make available through the Services or you have all rights, licenses, consents and releases that are necessary to grant to Blu Wellbeing (or, the Therapist or Customer as applicable) the rights in Your Materials, as contemplated under this Agreement; and (2) neither Your Materials nor your posting, uploading, publication, submission or transmittal of Your Materials or Blu Wellbeing’s (or, the Therapist’s or Customer’s as applicable) use of Your Materials or Your Image (or any portion thereof) on, through or by means of the Services will infringe, misappropriate or violate any patent, copyright, trademark, trade secret, moral rights or other proprietary or intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.

9.6   Trademarks/Use of Name or Brand. All Content, product names, trademarks, service marks and logos appearing as part of the Services, unless otherwise noted, are wholly owned or validly licensed by Blu Wellbeing. Trademarks, service marks and logos owned by third parties remain the property of such third parties.

9.7   Feedback. If you submit any ideas, suggestions or testimonials “Feedback” to Blu Wellbeing, you hereby transfer to us all rights in such Feedback without charge. You also agree that you have the right and authority to, and hereby grant to Blu Wellbeing an irrevocable non-exclusive, royalty-free world-wide license in perpetuity to reproduce, store, broadcast, distribute, edit, alter, combine with other material, publish, post, commercialize and/or otherwise use without limitation all or any part of the Feedback in any manner that we consider appropriate, including posting on the Internet. You also agree to waive any moral rights in connection with the Feedback. Please note that the Feedback you provide to us will not be treated as confidential information – accordingly, you agree not to submit to us any information or ideas that you consider to be confidential or proprietary. You may only submit ideas and material if you have obtained appropriate copyright and other permission to submit such materials and to permit Blu Wellbeing to use such material without restriction. You agree that you will not violate or infringe the rights of third parties, including privacy, publicity and intellectual and proprietary rights, such as copyright or trademark rights.

10

Our Responsibility for Loss or Damage

 

TO INDIVIDUAL CUSTOMERS

 

THE LAWS OF CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LEGAL WARRANTIES, CONDITIONS, LIABILITY OR CERTAIN DAMAGES OR LIMITATIONS OF REPRESENTATIONS MADE CONCERNING GOODS OR SERVICES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE BELOW EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU.

10.1   DISCLAIMER. BLU WELLBEING DOES NOT MAKE ANY REPRESENTATIONS, CONDITIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, COMPATIBILITY, SECURITY, ACCURACY, OR USEFULNESS WITH RESPECT TO THE PRODUCTS OR SERVICES. YOU AGREE THAT ANY CLAIMS OR CAUSES OF ACTION ARISING OUT OF ANY ACTION OR INACTION OF ANY THERAPISTS OR CUSTOMERS, SHALL BE EXCLUSIVELY BETWEEN YOU AND THE THERAPIST OR CUSTOMER (AS APPLICABLE) AND NOT BLU WELLBEING. THE PRODUCTS AND SERVICES ARE PROVIDED “AS IS.” YOU AGREE TO USE THE PRODUCTS AND SERVICES SOLELY AT YOUR OWN RISK. YOU ASSUME FULL RESPONSIBILITY AND RISK OF LOSS RESULTING FROM YOUR USE OF THE SERVICES. ALTHOUGH WE INTEND TO TAKE REASONABLE STEPS TO PREVENT ANY DAMAGES TO YOU, WE ARE NOT LIABLE FOR ANY DAMAGES OR HARM ATTRIBUTABLE TO THE FOREGOING. YOU UNDERSTAND AND ACKNOWLEDGE THAT BLU WELLBEING ONLY PROVIDES A PLATFORM FOR COMMUNICATION BETWEEN THERAPISTS AND CUSTOMERS, AND AS SUCH BLU WELLBEING DISCLAIMS ANY AND ALL LIABILITY RELATING TO YOUR INTERACTIONS WITH ANY THERAPIST(S) OR OTHER CUSTOMER(S). ANY REPRESENTATIONS MADE TO YOU BY ANY THERAPIST(S) ARE MADE SOLELY AT THE DISCRETION OF THE THERAPIST AND BLU WELLBEING HAS NO WAY TO MONITOR OR VALIDATE, AND SHALL NOT BE RESPONSIBLE OR LIABLE IN ANY WAY FOR, ANY REPRESENTATIONS OR STATEMENTS MADE TO YOU BY THE THERAPIST(S). YOU UNDERSTAND AND ACKNOWLEDGE THAT BLU WELLBEING SHALL HAVE NO LIABILITY TO YOU FOR ANY STATEMENTS OR REPRESENTATIONS MADE BY THE THERAPIST TO YOU AS A RESULT OF YOUR USE OF THE SERVICE(S).

10.2   THE SITE IS NOT BESPOKE TO YOU. YOU ACKNOWLEDGE THAT THE SITE HAS NOT BEEN DEVELOPED TO MEET YOUR INDIVIDUAL REQUIREMENTS, AND THAT IT IS THEREFORE YOUR RESPONSIBILITY TO ENSURE THAT THE FACILITIES AND FUNCTIONS OF THE SITE MEET YOUR REQUIREMENTS.

10.3   WE ARE RESPONSIBLE TO YOU ONLY FOR FORESEEABLE LOSS AND DAMAGE CAUSED BY US. IF WE FAIL TO COMPLY WITH THESE TERMS, WE ARE RESPONSIBLE FOR LOSS OR DAMAGE YOU SUFFER THAT IS A FORESEEABLE RESULT OF OUR BREAKING THESE TERMS OR OUR FAILURE TO USE REASONABLE CARE AND SKILL, BUT WE ARE NOT RESPONSIBLE FOR ANY LOSS OR DAMAGE THAT IS NOT FORESEEABLE. LOSS OR DAMAGE IS FORESEEABLE IF EITHER IT IS OBVIOUS THAT IT WILL HAPPEN OR IF, AT THE TIME THESE TERMS ARE ENTERED INTO AND BOTH WE AND YOU KNEW IT MIGHT HAPPEN.

10.4   WE ARE NOT LIABLE FOR BUSINESS LOSSES. IF YOU ARE AN INDIVIDUAL CUSTOMER, WE ONLY MAKE THE SITE AVAILABLE FOR YOUR DOMESTIC AND PRIVATE USE. IF YOU ARE A THERAPIST AND USE THE SITE FOR ANY COMMERCIAL, BUSINESS OR RE-SALE PURPOSE WE WILL HAVE NO LIABILITY TO YOU FOR ANY LOSS OF PROFIT, LOSS OF BUSINESS, BUSINESS INTERRUPTION, OR LOSS OF BUSINESS OPPORTUNITY

10.5

NO LIABILITY FOR DAMAGE CAUSED BY UNAUTHORISED ACCESS. WE WILL NOT BE RESPONSIBLE FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF UNAUTHORISED ACCESS TO YOUR ACCOUNT WHICH IS NOT WITHIN OUR REASONABLE CONTROL.

 

TO CORPORATE CUSTOMERS AND THERAPISTS

10.6   DISCLAIMER. BLU WELLBEING DOES NOT MAKE ANY REPRESENTATIONS, CONDITIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, COMPATIBILITY, SECURITY, ACCURACY, OR USEFULNESS WITH RESPECT TO THE SERVICES. YOU AGREE THAT ANY CLAIMS OR CAUSES OF ACTION ARISING OUT OF ANY ACTION OR INACTION OF ANY THERAPISTS OR CUSTOMERS, SHALL BE EXCLUSIVELY BETWEEN YOU AND THE THERAPIST OR CUSTOMER (AS APPLICABLE) AND NOT BLU WELLBEING. THE SERVICES ARE PROVIDED “AS IS.” YOU AGREE TO USE THE SERVICES SOLELY AT YOUR OWN RISK. YOU ASSUME FULL RESPONSIBILITY AND RISK OF LOSS RESULTING FROM YOUR USE OF THE SERVICES. ALTHOUGH WE INTEND TO TAKE REASONABLE STEPS TO PREVENT ANY DAMAGES TO YOU, WE ARE NOT LIABLE FOR ANY DAMAGES OR HARM ATTRIBUTABLE TO THE FOREGOING. YOU UNDERSTAND AND ACKNOWLEDGE THAT BLU WELLBEING ONLY PROVIDES A PLATFORM FOR COMMUNICATION BETWEEN THERAPISTS AND CUSTOMERS, AND AS SUCH BLU WELLBEING DISCLAIMS ANY AND ALL LIABILITY RELATING TO YOUR INTERACTIONS WITH ANY THERAPIST(S) OR OTHER CUSTOMER(S). ANY REPRESENTATIONS MADE TO YOU BY ANY THERAPIST(S) ARE MADE SOLELY AT THE DISCRETION OF THE THERAPIST AND BLU WELLBEING HAS NO WAY TO MONITOR OR VALIDATE, AND SHALL NOT BE RESPONSIBLE OR LIABLE IN ANY WAY FOR, ANY REPRESENTATIONS OR STATEMENTS MADE TO YOU BY THE THERAPIST(S). YOU UNDERSTAND AND ACKNOWLEDGE THAT BLU WELLBEING SHALL HAVE NO LIABILITY TO YOU FOR ANY STATEMENTS OR REPRESENTATIONS MADE BY THE THERAPIST TO YOU AS A RESULT OF YOUR USE OF THE SERVICE(S).

10.7   LIMITED LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWS, YOU AGREE THAT BLU WELLBEING, ITS AFFILIATES, AGENTS AND THEIR RESPECTIVE OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, CONTRACTORS, REPRESENTATIVES AND AGENTS WILL NOT BE LIABLE WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), FOR BREACH OF STATUTORY DUTY, OR OTHERWISE, ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT FOR: (A) ANY LOSS OF PROFITS; (B) ANY INDIRECT OR CONSEQUENTIAL LOSS; OR (C) TO THE EXTENT THAT YOU EXPERIENCE ANY LOSS OR DAMAGES RESULTING FROM YOUR USE OF THE SERVICES, INTERACTIONS WITH THERAPIST(S) OR OTHER CUSTOMERS.

10.8

INDEMNIFICATION. YOU AGREE TO INDEMNIFY AND HOLD HARMLESS BLU WELLBEING, ITS AFFILIATES, AGENTS, CONTRACTORS, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, CONTRACTORS, REPRESENTATIVES AND AGENTS, FROM ANY AND ALL LIABILITIES, CLAIMS, EXPENSES AND DAMAGES, INCLUDING REASONABLE ATTORNEYS’ FEES AND COSTS, ARISING OUT OF OR IN ANY WAY RELATED TO YOUR BREACH OF THIS AGREEMENT.

 

TO INDIVIDUAL CUSTOMERS, CORPORATE CUSTOMERS AND THERAPISTS

10.9   LIABILITY CAP. EXCEPT WHERE PROHIBITED BY APPLICABLE LAW, THE AGGREGATE LIABILITY OF BLU WELLBEING, ITS AFFILIATES, AGENTS AND THEIR RESPECTIVE OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, CONTRACTORS, REPRESENTATIVES AND AGENTS TO YOU FOR ALL CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT OR YOUR USE OF THE SERVICES, INCLUDING, WITHOUT LIMITATION, YOUR INTERACTION WITH ANY THERAPIST(S) OR OTHER CUSTOMER(S), ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT, OR STRICT LIABILITY, WILL NOT EXCEED THE GREATER OF: (A) THE TOTAL AMOUNT RECEIVED BY BLU WELLBEING FROM YOU DURING THE SIX-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY, OR (B) $100 CDN.

10.10   THIS LIMITATION OF LIABILITY IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE OR IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW FOR LIMITED LIABILITY OR EXCLUSION OF CERTAIN WARRANTIES, CONDITIONS OR REPRESENTATIONS SO NOT ALL OF THE ABOVE LIMITATIONS MAY APPLY TO YOU. YOU ACKNOWLEDGE AND UNDERSTAND THAT THE DISCLAIMERS, EXCLUSIONS AND LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE AGREEMENT BETWEEN THE PARTIES HERETO, THAT THE PARTIES HAVE RELIED UPON SUCH DISCLAIMERS, EXCLUSIONS AND LIMITATIONS OF LIABILITY, AND THAT ABSENT SUCH DISCLAIMERS, EXCLUSIONS AND LIMITATIONS OF LIABILITY, THE TERMS AND CONDITIONS OF THIS AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT.

10.11   WHAT WE DO NOT EXCLUDE. EXCEPT WHERE PROHIBITED BY APPLICABLE LAW, NOTHING IN THESE TERMS SHALL LIMIT OR EXCLUDE OUR LIABILITY FOR:

11   Third Party Links & App Store

11.1   Third-Party Links & Ads. The Site may contain links to third-party websites and services, and/or display advertisements for third parties (collectively, “Third-Party Links & Ads”). Where the Site contains links to Third-Party Links & Ads, these links are provided for your information and convenience only. We have no control over the contents of those sites or resources. Blu Wellbeing does not review, approve, endorse or make any promises with respect to Third-Party Links & Ads. You use Third-Party Links & Ads at your own risk. You use all Third-Party Links & Ads at your own risk, and should apply a suitable level of caution and discretion in doing so. When you click on any of the Third-Party Links & Ads, the applicable third party’s terms and policies apply, not these Terms.

12   Account Suspension or Termination

12.1   When we might suspend or terminate your Account or Site access. We may, subject to applicable law, in our discretion and without liability to you, with or without cause, with or without prior notice and at any time: (a) terminate this Agreement and/or your access to the Services, and (b) deactivate or cancel your Account.

12.2   What happens when these Terms terminate? Upon termination we will promptly pay you any amounts that we reasonably determine we owe you (if any) in our discretion. In the event Blu Wellbeing terminates this Agreement or your access to the Services or deactivates or cancels your Account, you will remain liable for all amounts due hereunder.

12.3   Your right to cancel your Account. You may cancel your Account at any time by contacting us at the contact information set out in Section 2. Please note that if your Account is cancelled, we do not have any obligation to delete or return to you any of Your Materials that you have posted to the Services, including, but not limited to, any reviews or Feedback, nor, to the maximum extent permitted by applicable law, are we obligated to refund you any prepaid payments for the Services you have made on your Account.

12.4   Our right to cancel. If we terminate this Agreement and/or your access to the Services as a result of your violation of any applicable law or regulation, we may also, at our sole discretion, inform law enforcement or regulatory authorities of the circumstances surrounding such termination.

13   Reporting Complaints or Concerns

13.1   Contacting Blu Wellbeing. To the extent you have any complaints or concerns that arise relating to your Services, including those relating to a Therapist or Customer, immediately contact Blu Wellbeing at info@bluwellbeing.com. For emergencies, including with regard to personal safety, please dial 911 and/or contact your local law enforcement.

13.2   Investigating Complaints. During the course of investigating complaints and concerns, we may suspend your Account or Site access, consistent with Section 12 above. Upon completion of the investigation, Blu Wellbeing may terminate your Account subject to the terms set forth in Section 12 above.

14   Other Important Terms

14.1   Privacy Policy. Please refer to our Privacy Policy https://www.bluwellbeing.com/legal/privacy/ for more information on the manner in which Blu Wellbeing collects, uses, discloses and otherwise treats your personal information. The Privacy Policy is fully incorporated herein by reference

14.2   Anti-Spam. Blu Wellbeing prohibits the sending of unsolicited email or text messages (spam) or other communications that violate applicable privacy and anti-spam legislation. Spam is defined for this purpose as sending any message that encourages participation in a commercial activity or multiple messages similar in content to any person(s), entity(ies), newsgroup(s), forum(s), email list(s), or other group(s), individual(s) or list(s) unless prior authorization has been obtained from the recipient or unless a business or personal relationship has already been established with the recipient in accordance with the requirements under applicable law. Blu Wellbeing also prohibits using false headers in emails or falsifying, forging or altering the origin of any email or text message in connection with Blu Wellbeing, and/or any products and Services. Blu Wellbeing prohibits engaging in any of the foregoing activities by using the service of another provider, remailer service, or otherwise. IF YOU OR ANYONE YOU KNOW IS “SPAMMED” BY SOMEONE IN RELATION TO BLU WELLBEING’S SERVICES, PLEASE CONTACT US PROMPTLY VIA THE CONTACT MECHANISM MADE AVAILABLE VIA THE WEBSITE SO THAT WE MAY TAKE APPROPRIATE ACTION.

14.3   Governing Law and Jurisdiction. The validity, interpretation, construction, and performance of these Terms shall be governed by the laws of the province or territory in which you reside.

14.4   Even if we delay in enforcing these Terms, we can still enforce it later. If we do not insist immediately that you do anything you are required to do under these Terms, or if we delay in taking steps against you in respect of your breaking these Terms, that will not mean that you do not have to do those things and it will not prevent us taking steps against you at a later date.

14.5   Rights and Remedies. Unless stated otherwise, all remedies provided for in this Agreement shall be cumulative and in addition to and not in lieu of any other remedies available to either party at law, in equity, or otherwise.

(a)   The Websites, including but not limited to software, content, text, photographs, images, graphics, video, audio and the compilation as a whole (“Content”), are copyrighted under U.S. and Canadian copyright, trademark and other laws by Blu Wellbeing or its licensors, unless otherwise noted. You must abide by all additional copyright notices or restrictions contained in the Websites or elsewhere. You may not delete any legal or proprietary notices in the Websites or elsewhere.

(b)   Except as noted in Section 7 above: (1) the Websites may not be used, displayed, copied, reproduced, distributed, republished, uploaded, downloaded, posted, transmitted, mirrored or modified; and (2) except to the extent permitted by applicable law, you may not redistribute, sell, translate, modify, reverse-engineer or reverse-compile or decompile, disassemble or make derivative works of the Websites or any Content or components that are available on the Websites.

(c)   You agree not to interfere or take action that results in interference with or disruption of the Websites or Apps or servers or networks connected to the Websites or Apps. You agree not to attempt to gain unauthorized access to other computer systems or networks connected to the Websites or Apps. Blu Wellbeing reserves all other rights. Except as expressly provided herein, nothing on the Websites or as part of the Services will be construed as conferring any license under Blu Wellbeing’s and/or any third party’s intellectual property rights. Notwithstanding anything herein to the contrary, Blu Wellbeing may revoke any of the foregoing rights and/or your access to the Services, including the App, or any part thereof, at any time without prior notice.

(a)   DEATH OR PERSONAL INJURY RESULTING SOLELY FROM OUR NEGLIGENCE OR THE NEGLIGENCE OF OUR EMPLOYEES, AGENTS OR SUBCONTRACTORS;

(b)   FRAUD OR FRAUDULENT MISREPRESENTATION;

(c)   ANY OTHER LIABILITY THAT CANNOT BE EXCLUDED BY APPLICABLE LAW.

14.6   Arbitration. Except where prohibited by law, any controversy, claim or dispute arising out of, relating to, or in respect of these Terms, including their negotiation, validity, existence, breach, termination, construction or application, or the rights, duties or obligations of any party, or the rights, duties or obligations of any party derived from or associated with these Terms (a “Dispute”), shall be referred to and determined by a single arbitrator in a final and binding arbitration administered under the rules of ADR Institute of Canada, Inc.’s Arbitration Rules. If the parties have not agreed upon an arbitrator within 14 days, unless otherwise agreed by the parties in writing, the parties shall ask the ADR Institute of Canada, Inc. to appoint a single arbitrator.

14.7   If a court finds part of these Terms illegal, the rest will continue in force. Each of the Sections of these Terms operates separately. If any court or relevant authority decides that any of them are unlawful, the remaining Sections will remain in full force and effect.

14.8   We may transfer these Terms to someone else. We may transfer our rights and obligations under these Terms to another organization – for example, this could include another member of our group of companies or someone who buys our business. We will always tell you in writing if this happens and we will ensure that the transfer will not affect your rights under these Terms. You may not assign, delegate, or transfer any rights under this Agreement without the prior express written consent of Blu Wellbeing, which may be withheld in Blu Wellbeing’s sole discretion.

14.9   Nobody else has any rights under these Terms. These Terms are between you and us. No other person shall have any rights to enforce any of its terms.

14.1.0   Entire Agreement. You hereby agree that (a) this Agreement operates in addition to any terms of use imposed or required by Apple Inc., Google, Inc., Microsoft, Inc. This Agreement, Blu Wellbeing’s Privacy Policy available at https://www.bluwellbeing.com/legal/privacy/ and any other legal notices or statements posted on the Services represent the entire agreement between you and Blu Wellbeing with respect to use of the Services, and hereby supersede all prior and/or contemporaneous communications and proposals, whether electronic, oral, or written between you and Blu Wellbeing.

(a)   The seat of the arbitration shall be the same as the provincial or territorial law governing these Terms. The arbitration shall be heard in the capital of the seat, unless the parties agree otherwise. The costs and expenses of the arbitrator shall be shared equally between the parties. A party to the arbitration has no right of appeal from any award of the Arbitrator, whether characterized as final, interim, interlocutory or partial.

(b)   All Disputes referred to arbitration (including the scope of the agreement to arbitrate, the law relating to the enforcement of the agreement to arbitrate, any relevant limitation periods, the law governing the procedure of the arbitration, the law relating to available remedies, set-off claims and conflict of laws rules) shall be governed by the law of the seat. Each party hereby irrevocably consents to venue in the capital of the seat, and to the jurisdiction of competent courts in the capital of the seat for all litigation that may be brought, however it is agreed and acknowledged that the intention of the parties is to arbitrate the Dispute without recourse to the courts.

(c)   A party to these Terms may take such steps as are permitted or required to enforce an award made by an Arbitrator. Except as required by law, and only to the extent that such disclosure is reasonably necessary, or for the purposes of obtaining professional advice, the existence of the arbitration and any element of the arbitration, including any award, shall be confidential and shall not be disclosed to any non-party to the arbitration. No document or other evidence or information prepared for or produced by or on behalf of any party to the arbitration shall be disclosed to any non-party to the arbitration.