Terms and Conditions
DIGITAL BALANCE TERMS AND CONDITIONS OF USE
Last updated: March 13, 2021
Please read this “Terms and Conditions of Use Agreement” (the “Agreement”, as defined below) carefully before using the website at:
https://mydigitalbalance.com, (the “Service”, also as defined below).
Your access to and use of this website and Service is conditioned on your acceptance of and compliance with this Agreement. This Agreement applies to all visitors, users and others who access or use this Service.
By accessing or using the Service you agree to be bound by this Agreement. If you disagree with any part of this Agreement then you do not have permission to access this Service.
“Agreement” shall mean this Digital Balance Terms and Conditions of Use Agreement.
“Confidential Information” shall mean any information disclosed by one party to the other which is or should be reasonably understood to be confidential or proprietary to the disclosing party or any information which has been identified as Confidential Information by the disclosing party and includes, but is not limited to the terms and provisions of this Agreement and any information about the unpublished financial information, product and business plans, projections, marketing data and plans, and legal information of either party. “Confidential Information” shall not include information that the receiving party can document:
(a) is or becomes generally available to the public other than as a result of the receiving party’s breach of this Agreement;
(b) is obtained by the receiving party on a non-confidential basis from a third-party that was not legally or contractually restricted from disclosing such information;
(c) was in the receiving party’s possession prior to disclosure by the disclosing party hereunder; or
(d) was or is independently developed by the receiving party without any Confidential Information.
“Customers” shall mean the ultimate users of the System, also referred to as “End Users”.
“Customer Information” shall mean any information the Service receives from the Customers using the Service.
“DB” shall mean Wellness Driven, LLC doing business as “Digital Balance”.
“Developed Information” shall mean any data, concepts, plans, designs, ideas, innovations, inventions, conceived or developed during the Term of this Agreement.
“Grace Period” shall mean a 30-day period after the Customer is determined to be behind on any payments, to make full payment.
“Intellectual Property” shall mean any text, source code, object code, routines, libraries, software, data, images, sketches, graphs, drawings, other copyrightable works, Copyrights, names, house marks, ‘Good Will’, Trademarks, ‘Know-How’, innovations, configurations, settings, Trade Secrets relating to the Service.
“Proprietary Customer Information” shall mean any Confidential Information that the Customer inputs into the Service.
“Proprietary DB Information” shall mean any Confidential Information DB has owned or acquired prior to the execution of this Agreement that it has kept confidential and all confidential information created or developed during the term of this Agreement.
“Service” shall mean the website and all Software, data and hardware allowing it to function.
“Software” shall mean any and all executable code developed for use with the Service under this Agreement.
“Territory” shall mean within the United States, its territories, and Canada.
“Term” shall mean a period commencing on the date of execution of the final signature on this Agreement and ending twelve (12) months from its date of execution and all renewal periods.
For the term of this Agreement and for five (5) years thereafter, neither party shall disclose to any third-party (other than its employees and directors, in their capacity as such, and the employees and directors of any affiliate on a need to know basis so long as they are bound by the confidentiality obligations at least as strict as the obligations in this Agreement) any Confidential Information that a party has received, in whatever form or media, nor use such Confidential Information for any purpose not permitted under this Agreement.
If a party is required to disclose Confidential Information pursuant to an order of a court, administrative agency, or other governmental or regulatory body, the receiving party shall provide prompt notice to other party of such order or requirement and, if so requested by the other party, shall use commercially reasonable efforts to obtain a protective order or otherwise prevent or limit public disclosure of such Confidential Information. Upon termination or expiration of this Agreement, or at any time either party shall so request, the other party will deliver promptly to the requesting party, or, at the requesting party’s option, will destroy, all Confidential Information obtained hereunder (and all copies thereof) belonging to the requesting party that the other party may then possess or have under its control.
- Customer Information.
Customer grants to DB a nonexclusive, royalty-free, worldwide right and license to use, reproduce any Customer Information in connection with the Services provided to Customer.
Customer also grants to DB a nonexclusive, royalty-free, worldwide right and license to display, distribute and publicly perform any Customer Information which is not considered Confidential Information in connection with the Services provided to Customer.
DB will continue to own all right, title and interest in Proprietary DB Information and its associated Intellectual Property.
DB will continue to own all right, title and interest in the Software and its underlying Intellectual Property.
DB will continue to own all right, title and interest in the Service and its underlying Intellectual Property.
DB will also own all right, title and interest in ideas, concepts, innovations, inventions, improvements, and their underlying Intellectual Property developed during the Term of this Agreement relating to the subject matter of the Service.
The Customer agrees to assist DB, even after termination of this Agreement, to sign papers, provide information and otherwise act to perfect any of DB’s Intellectual Property or ownership rights in the Developed Information.
- Domain Name.
If DB is the authorized registrant of Customer’s domain name, then Customer agrees that DB shall be entitled to withhold the release of Customer’s domain name until all fees due under this Agreement are paid in full. Customer waives all claims, including, but not limited to, trademark claims and conversion claims, for DB’s refusal to release Customer’s domain name until all fees due under this Agreement are paid in full. Customer also waives all claims pursuant to ICANN’s Uniform Domain-Name Dispute Resolution Policy until all fees due under this Agreement are paid in full.
- Links To Other Websites.
The Service may contain links to third-party websites or services that are not owned or controlled by DB. DB has no control over, and assumes no responsibility for, the content, privacy policies, or practices of any third-party websites or services. You further acknowledge and agree that DB shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such websites or services. We strongly advise you to read the terms and conditions and privacy policies of any third-party websites or services that you visit.
The term of this Agreement commences upon execution of this Agreement and continues for twelve (12) months (“Initial Term”). Thereafter, this Agreement will automatically renew for successive terms of twelve (12) months each (each a “Renewal Term”), unless either party provides written notice of its intent not to renew at least thirty (30) days prior to the end of the then-current term. The Initial Term and all Renewal Terms are all considered part of the Term of this Agreement.
This Agreement may be terminated in writing at least thirty (30) days prior to its renewal date. Notice of such termination must be provided in writing at least thirty (30) days prior to the next billing date.
If a Customer’s account has an unpaid balance, the Customer is given a 30-day grace period (the “Grade Period”, as defined above) to make full payment. If the Customer does not make payment by the end of the Grace Period, then DB may rightfully terminate Customer’s License and this Agreement.
- License Grant.
DB grants to the Customer a non-exclusive License under the Intellectual Property to use the Licensed System in the Territory for the Term unless such License is otherwise terminated or limited as provided herein or as mutually agreed upon by the Parties.
- Intended for Use with North American Clients.
Since the Service has not yet been approved for use in other countries, the Service is only intended for Customers residing within the Territory.
Your use of the Service is at your sole risk. The Service is provided on an “AS IS” and “AS AVAILABLE” basis. The Service is provided without warranties of any kind, whether express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, non-infringement or course of performance.
The Customer shall be prohibited from modifying the System.
The Customer shall be prohibited from modifying any Software of the System.
The Customer shall be prohibited from distributing or sharing any Software of the System with any other entity without prior written consent.
The Customer shall be prohibited from copying any Software of the System.
The Customer shall be prohibited from making derivative works from any Software of the System.
The Customer is prohibited from attempting to reverse engineer any software, routines, Apps, configurations, settings, data or designs relating to the Service.
The Customer shall be prohibited from using the Software on any other computing device except for the System.
The Customer shall be prohibited from assigning any of his/her rights to any third parties.
The Customer agrees that it will not enter into any sub-licensing agreement with any third-party without the prior written approval of DB.
The Customer agrees that it will not remove any Intellectual Property markings, such as the Digital Balance logo displayed in the website footer.
- Ability to Enter a Binding Agreement.
The Customer warrants that he/she is a competent adult and has the authority to enter into this Agreement.
Customer will indemnify, defend and hold DB harmless from and against any and all third-party liabilities, damages, losses and claims, that are based, at least in part, upon any actions or inactions of the Customer. This will include breach of this Agreement by the Customer. If any third-party claim is brought against DB, DB will:
(i) promptly notify Customer of any such claim of which it becomes aware,
(ii) provide reasonable cooperation to Customer at Customer’s expense in connection with the defense or settlement of any such claim, and
(iii) be entitled to participate at its own expense in the defense of any such claim. If DB participates in an adverse matter, Customer agrees that DB will have sole and exclusive control over the defense and settlement of any such claim.
- Limitation of Liability.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL DB BE LIABLE TO ANY CUSTOMER FOR ANY:
(I) INDIRECT, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR INCIDENTAL DAMAGES, INCLUDING LOST OR ANTICIPATED REVENUES OR PROFITS, OR
(II) AMOUNTS IN THE AGGREGATE IN EXCESS OF THE AMOUNTS PAID HEREUNDER DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO ANY CLAIM, IN EACH CASE ARISING FROM ANY CLAIM RELATING TO THIS AGREEMENT OR THE SUBJECT MATTER HEREOF, WHETHER SUCH CLAIM IS BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EVEN IF DB HAS BEEN ADVISED OR SHOULD BE AWARE OF THE POSSIBILITY OF SUCH DAMAGES.
- Dispute Resolution.
Negotiation: In the event of a dispute between the Parties, both agree to first meet and work towards a resolution through good faith negotiation.
Mediation/Arbitration: Any and all conflicts or disagreements between the Parties must be first negotiated as indicated in the paragraph above. Any issues not resolved by negotiation must then be handled by mediation in Lackawanna County, Pennsylvania. Any issues not resolved by mediation will then be settled by AAA Binding Arbitration in Lackawanna County, Pennsylvania.
Expenses: Reasonable expenses relating to Mediation and Arbitration, including Court costs and Attorneys’ fees, will be paid for entirely by the Party to be found in breach of this Agreement.
Litigation: The Parties can only bring a lawsuit after exhausting the Mediation and Binding Arbitration options . For all adverse proceedings, this Agreement will be interpreted based on the conflict of laws of the Commonwealth of Pennsylvania. Venue is proper in Lackawanna County, Pennsylvania.
If any section of this Agreement is found to be invalid, illegal, or unenforceable, the rest of the Agreement will still be enforceable.
All notices under this Agreement must be sent by either email with return confirmation of receipt.
Notices to DB should be emailed to:
sent by U.S. First Class Mail to:
Wellness Driven, LLC
210 Lackawanna Avenue
Scranton, PA 18503
Notices to the Customer will be emailed to the current email address on file for the Customer. Upon request of the Customer, notices can be mailed by U.S. First Class Mail to the address indicated in the request.
The headings in this Agreement are inserted for convenience only and shall not constitute a part hereof.
Our failure to enforce any right or provision of this Agreement will not be considered a waiver of those rights. If any provision of this Agreement is held to be invalid or unenforceable by a court, the remaining provisions of this Agreement will remain in effect. This Agreement constitutes the entire agreement between the Parties regarding this Service and supersedes and replaces any prior agreements we might have between us regarding the Service.
We reserve the right, at our sole discretion, to modify or replace the terms of this Agreement at any time without prior notice. Please review this Agreement periodically when using the Service. By continuing to access or use our Service after those revisions become effective, you agree to be bound by the revised terms. If you do not agree to the new terms, please stop using the Service.
WELLNESS DRIVEN, LLC d/b/a Digital Balance
By continuing to use this Service, the Customer agrees with and accepts the terms of this Agreement and thereby executes this Agreement on the date of the acceptance. This verifies that the Agreement is a legal and binding agreement between DB and the Customer.
* * *