RELEASE AND WAIVER OF LIABILITY
In consideration of the health and wellness coaching (“Coaching”) provided to you by Evolve Personal Health, Inc. its successors and assigns (hereinafter collectively referred to as “Evolve”, you on your own behalf and on behalf of your heirs, successors, assigns, parents, next-of-kin, personal representatives and estate (hereinafter collectively referred to as “your heirs”), agree as follows:
1. Risks. You desire to receive services to help better manage your chronic medical condition (hereinafter “the Coaching”) provided by Evolve, commencing on the date indicated below. You understand that Evolve does not diagnose, prevent or treat illness, disease or any other physical or mental condition you may have. While Evolve takes great care in the provision of the Coaching, Evolve cannot guarantee any outcomes. The information provided during the Coaching is for educational and informational purpose use only, and does not constitute the rendering of medical advice or treatment by Evolve. You understand that you do not have a physician-patient relationship with Evolve or any of its employees or principals. You have been encouraged to consult with your physician or a qualified health care practitioner for diagnosis and treatment before, during and after participation in the Coaching.
2. Assumption of Risk. You are participating in the Coaching by your own choice because you want to receive them. You agree to act with great care for your safety and well-being, and that of all other people around you during the Coaching. You understand that you have the right to decline to participate in any portion of the Coaching. You are participating voluntarily in the Coaching at your own risk, and you expressly accept full responsibility for all of the risks, known or unknown.
3. Release. In consideration of being able to participate in the Coaching, you and your heirs release and discharge Evolve from all present and future liability to you or to your heirs for any claim, demands or causes of action arising from, or relating to my participation in the Coaching, including, without limitation, all claims for physical or mental injury, death, disability, any property damage, including any claims alleging negligence or negligent acts or omissions.
4. Certification of Health, Physical Condition and Safety Rules. You certify that you have no medical, physical, mental or emotional conditions that you know, or reasonably suspect, could interfere with your ability to participate in the Coaching. If you have any such condition, you assume and bear all risks and costs of any injury or damage that may result from participation in the Coaching. You have or will consult with your treating physician during the course of receiving Coaching. You also acknowledge that you have been instructed in the basic principles for safe participating in the Coaching prior to such participation, and that all of your questions have been answered in a satisfactory manner. You are not under the influence of any drugs or alcohol, or any other substance that would impair your health, balance or judgment and will not participate in any the Coaching activities if that is ever the case, nor if you feel that you are not physically, mentally, or emotionally fit to participate at any time during the Coaching.
5. Nature of Release/Severability. This release and waiver is intended to be as broad and inclusive as permitted by the laws of the State of Florida. If any portion of this agreement is held invalid, the remaining provisions shall still continue in full force and effect.
6. Venue and Waiver of Jury Trial. You agree that any legal proceedings you institute against Evolve must be brought only in Hillsborough County, Florida, and that the law of Florida will govern any such proceedings. Furthermore, you knowingly, intentionally, voluntarily, and irrevocably WAIVE THE RIGHT TO A TRIAL BY JURY for any action relating to this agreement or to your participation in the Coaching. This waiver is a material inducement for entering into this agreement.
7. Agreement Controlling. This agreement contains the entire agreement between Evolve and you, and supersedes any and all other agreements or representations, written or oral.
YOU UNDERSTAND THAT BY AGREEING TO THIS RELEASE AND WAIVER OF LIABILITY, YOU ARE GIVING UP CERTAIN VALUABLE LEGAL RIGHTS AGAINST EVOLVE. You have fully read this document and understand the legal consequences of this document, including your waiver of a right to a jury trial. You acknowledge that you have had an opportunity to ask questions regarding this Release and Waiver, and that you have the ability to refuse to participate in the Coaching without financial penalty if you do not agree to the conditions of this Release and Waiver.
Effective Date: May 1, 2018
EVOLVE MAY, AND RESERVES THE RIGHT TO, FROM TIME TO TIME, MODIFY, LIMIT, CHANGE, DISCONTINUE, OR REPLACE THE WEBSITE. EVEN AFTER YOU AGREE, IT IS YOUR RESPONSIBILITY TO REVIEW THIS AGREEMENT ON A REGULAR BASIS TO KEEP YOURSELF INFORMED OF ANY MODIFICATIONS. IN THE EVENT EVOLVE MODIFIES, LIMITS, CHANGES, OR REPLACES THE WEBSITE, YOUR USE OF THE WEBSITE AFTER SAID MODIFICATION, LIMITATION, CHANGE, OR REPLACEMENT CONSTITUTES YOUR MANIFESTATION OF ASSENT TO THE MODIFICATION, LIMITATION, CHANGE, OR REPLACEMENT.
1. Provider. The Website provides an electronic platform that enables users (“Participants”) to enroll and participate in a proprietary program designed to educate Participants on evidence-based lifestyle modifications. The material on this website includes general non-proprietary information from associations such as the American Heart Association and American College of Cardiology, and research institutions such as National Institutes of Health.
Evolve also provide coaching services to Participants through methods outside of the Website, such as phone and video.
2. Warranties and Representations. You warrant and agree that you have the right and legal capacity to enter into this Agreement and to adhere to its terms and conditions. In order to become a member, you warrant that you are a human individual that is twenty-one (21) years of age or older and are not prohibited from assenting to this Agreement by any preexisting agreement. You agree that your use of the Website is for your own personal, non-commercial purposes only. You may not use the Website on behalf of any third party.
Your reliance upon any information on the Website is at your sole and absolute risk.
You understand that Evolve does not diagnose, prevent or treat illness, disease or any other physical or mental condition. The information provided on the Website is for educational and informational purpose use only, and does not constitute the rendering of medical advice or treatment by Evolve. You understand that you do not have a physician-patient relationship with Evolve or any of its employees or principals. You have been encouraged to consult with your physician or a qualified health care practitioner for diagnosis and treatment before, during, and after participation in the program.
You acknowledge and agree that the above and following warnings and disclaimers shall apply to all such information, instruction, and services displayed on and/or offered through the Website.
The Website may only work with certain browsers.
Evolve does not warrant or guarantee that compliance with this Agreement will be sufficient to comply with your obligations hereunder, under applicable law or with third party rights. Given the global nature of the Internet, you agree to comply with all laws and rules where you reside or where you use Website. Website is operated in the United States and Evolve makes no representation that its Website or services are appropriate, lawful, or available for use in other locations. Evolve does not offer Website where prohibited by law.
You agree that you will not use the Website to violate any law, statute, ordinance, regulation, or treaty, to violate the rights of third parties, or for a use outside of the customary and intended purposes of the Website.
You warrant and agree that you will not use the Evolve platform to provide services to others. You are expressly prohibited from using the Website for any purposes not explicitly stated in this Agreement.
You may only use your Member account and you are expressly prohibited from providing additional parties with access your Member account. You are solely responsible for maintaining the security and confidentiality of your username and password and for any access to your Member account, whether authorized or unauthorized. In the event your Member account is accessed without your authorization, you agree to immediately provide notice to Evolve. By creating a Member account, you agree that Evolve, and Evolve’s designees and agents, may contact you by any available means, including, but not limited to, by email.
Membership is concluded upon completion of the program associated with the Member account.
Your violation of any term or condition of this Agreement may result in the immediate termination of your Member account and the disabling of your access to the Website.
4. Payments. All payments to Evolve for purchasing of a program must be made using credit card. All payments are non-refundable after fourteen (14) days. Payment options are a full one-time payment or monthly payments. Monthly payments will be charged on the same date each month (“Billing Date”). You agree to notify Evolve in the event of a new credit card number to prevent payment failure. If the credit card payment is not able to settled, Evolve will notify you to request a new number. You must respond within seven (7) days of Billing Date to maintain your Member account.
You agree to pay Evolve all reasonable attorney’s fees and costs incurred by Evolve to collect any past due amounts. Your Member account will be deactivated until further notice if payment is past due, regardless of the dollar amount. You agree to pay any outstanding balance in full within thirty (30) days of cancellation or termination of the Services. Evolve may change the fee structure at any time with thirty (30) days notice.
You agree that Evolve will not be liable for any loss caused by any unauthorized use of your credit card or any other method of payment by a third party in connection with the Site. You waive your right to dispute any payment made into your account and you will bear all costs.
Any attempt to defraud the Site through the use of credit cards, or any failure by you to honor charges or request for payment will result in immediate termination of Your Account and civil and/or criminal prosecution.
In the case of suspected or fraudulent payment, including use of stolen credentials, by anyone, or any other fraudulent activity, Evolve reserves the right to block your Member account. Evolve shall be entitled to inform any relevant authorities or entities (including credit reference agencies) of any payment fraud or other unlawful activity, and may employ collection services to recover payments.
5. Refunds. Full refunds are allowed within fourteen (14) days from the date of enrollment. Refunds will be issued by the same payment means through which the program was purchased. No full or partial refunds will be issued after this period for any reason.
6. Prohibited Uses of Website. You agree that you will not use the Website to violate any law, statute, ordinance, regulation, or treaty, to violate the rights of third parties, or for a use outside of the customary and intended purposes of the Website.
7. Ownership of Website Content. You understand and agree that Evolve is the owner, or licensee, of all rights in and to the Website and its associated content, including but not limited to all intellectual property and any other property or proprietary rights. The Website is protected by all applicable laws, intellectual property or otherwise, and you are expressly prohibited from using the Website for any purposes not explicitly stated in this Agreement. Specifically, and except where otherwise allowed under this Agreement, you are prohibited from framing, scraping, aggregating, hacking, reverse engineering, crawling, reproducing, preparing derivative works of, distributing, performing publicly, or displaying publicly the Website, whether in whole or in part, without the prior written consent of Evolve. The foregoing prohibition on crawling and aggregation will not apply to search engines or non-commercial and publicly available archives that appropriately comply with the robots.txt file.
Evolve hereby grants you a limited, non-exclusive, non-sublicensable, non-assignable, and revocable license to use the Website for its customary and intended purposes. Use of the Website for a use outside of its customary and intended purposes or in violation of the terms of this Agreement will result in the termination of this license. This license is revocable at any time, and any rights not expressly granted herein are reserved to Evolve.
8. User Generated Content. Evolve may provide you with the ability to submit user generated content to or through the Website, which may include, but is not limited to discussions and comments (collectively “User Generated Content”). You agree that you are the owner of, or have rights to, any and all User Generated Content submitted. You further warrant that any User Generated Content that you submit to the Website will is truthful and will not violate or infringe upon the rights of third parties, including, but not limited to, trademark rights, copyright rights, patent rights, rights of publicity and privacy, and any other intellectual property right, personal right, or proprietary or violate any applicable law, statute, ordinance, treaty, or regulation, whether local, state, provincial, national, or international.
By submitting information to the Website, you grant Evolve a non-exclusive, irrevocable, royalty free, worldwide, and perpetual license to use your information for the customary and intended purposes of the Website and any advertising thereof. These purposes may include, but are not limited to, providing you or third parties with the Website or its associated products, including services and archiving or making backups of the Website. By submitting information to the Website, you further agree to waive all rights of publicity or privacy with respect to the information submitted. You agree to execute any and all documents requested by Evolve and shall cooperate in any endeavor Evolve makes to obtain the necessary rights to display your information.
This provision shall survive any termination of this Agreement for the maximum period permitted under applicable law.
9. Third Party Links and Advertisers Promotions. You understand that the Website may contain links to third party websites, applications, or services that Evolve does not own or control. You agree that Evolve will not be held responsible or liable for the content of third party websites, applications, or services as well as Advertisers’ advertisements and that Evolve’s inclusion of those websites, applications, or services as well as Advertisers’ advertisements within its Website does not constitute Evolve’s endorsement of, recommendation of, or affiliation with any of those websites, applications, or services and/or Advertisers.
10. Section 230 of Communications Decency Act. You acknowledge and agree that Evolve is an interactive computer service provider under Section 230 of the Communications Decency Act. Though Evolve may edit, remove, or control the content displayed through the Website, you agree that Evolve will not be considered an information content provider and will not be held liable for the republication of defamatory or tortious content created by third parties, whether through the Website or otherwise. Evolve may, within its sole and absolute discretion, remove any User Generated Content, for any reason and for no reason at all.
12. Copyright Policy. Evolve hereby incorporates its Copyright Policy into this Agreement.
All rights not expressly granted herein are reserved to Evolve.
13. Disclaimer of Warranties. EVOLVE DISCLAIMS ANY RESPONSIBILITY FOR ANY HARM OR LIABLITY ARISING OUT OF OR RELATED TO YOUR USE OF THE WEBSITE OR ANY GOODS OR SERVICES LINKED TO OR THROUGH THE WEBSITE, EVOLVE PROVIDES THE WEBSITE ON AN AS-IS BASIS AND WITH NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, ACCURACY, NON-INFRINGEMENT, OR QUALITY. SOME JURISDICTIONS DO NOT ALLOW AN EXCLUSION OF IMPLIED WARRANTIES. IF YOU ARE LOCATED IN SUCH A JURISDICTION, THIS EXCLUSION MAY NOT APPLY.
EVOLVE WILL NOT BE HELD RESPONSIBLE OR LIABLE FOR ANY CONTENT POSTED ON THE WEBSITE, ANY THIRD PARTY LINKS POSTED ON THE WEBSITE, OR ANY CONTENT TRANSMITTED THROUGH THE WEBSITE. EVOLVE DOES NOT ASSUME RESPONSIBILITY FOR ANY ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DESTRUCTION OF IDENTITY, UNAUTHORIZED ACCESS, OR ALTERATION OF OR TO THE WEBSITE. EVOLVE RESERVES THE RIGHT TO DISCONTINUE THE WEBSITE AT ANY TIME.
EVOLVE IS NOT RESPONSIBLE FOR THE REPRESENTATION OR CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY MEMBER, USER OR ADVERTISER OF WEBSITE.
14. Limitation of Liability. YOU ACKNOWLEDGE AND AGREE THAT EVOLVE WILL NOT BE LIABLE TO YOU UNDER ANY LEGAL THEORY FOR DAMAGES, CLAIMS, INJURIES, JUDGMENTS, OR LIABILITIES ARISING OUT OF OR RELATED TO YOUR USE OR MISUSE OF THE WEBSITE OR SERVICES LINKED TO THROUGH THE WEBSITE, INCLUDING BUT NOT LIMITED TO PERSONAL INJURY, LOSS OF BUSINESS, LOSS OF INCOME, SPECIAL DAMAGES, INCIDENTAL DAMAGES, CONSEQUENTIAL DAMAGES, PUNATIVE DAMAGES, OR EXEMPLARY DAMAGES. YOU UNDERSTAND AND AGREE THAT THE MAXIMUM AMOUNT THAT EVOLVE CAN BE HELD LIABLE TO YOU UNDER ANY CIRCUMSTANCES IS THE AMOUNT THAT YOU PAID FOR ANY SERVICE PROVIDED THROUGH THE WEBSITE. IF NO AMOUNT IS PAID BY YOU TO EVOLVE FOR THE WEBSITE AND/OR MEMBER ACCOUNT, YOU AGREE THAT YOU WILL BE LIMITED TO INJUNCTIVE RELIEF ONLY UNLESS OTHERWISE PERMITTED BY LAW.
15. Indemnification. You agree to hold harmless, indemnify, and defend Evolve, its officers, employees, agents, successors, and assigns, from any and all claims, demands, losses, damages, rights, and actions of any kind, including without limitation property damage, infringement, personal injury, and death, that either directly or indirectly arises out of or is related to your use of the Website, your violation of any term or condition of this Agreement, your violation of any applicable law, statute, ordinance, regulation, or treaty, whether local, state, national, or international, or your violation of the rights of a third party. Your obligation to defend Evolve under the terms of this Agreement will not provide you with the right to control Evolve’s defense, and Evolve reserves the right to control its defense regardless of your contractual requirement to defend Evolve.
17. Resolution of Disputes. This Agreement will be interpreted under and governed by the laws of the State of Florida without giving effect to any conflicts of laws principles. You agree that any claim or dispute that you may have against Evolve will be exclusively resolved through arbitration.
YOU AND EVOLVE AGREE THAT ARBITRATION WILL BE THE EXCLUSIVE FORUM AND REMEDY AT LAW FOR ANY DISPUTES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR YOUR USE OF THE WEBSITE, INCLUDING ANY DISPUTES CONCERNING THE VALIDITY, INTERPRETATION, VIOLATION, BREACH, OR TERMINATION OF THIS AGREEMENT. ARBITRATION UNDER THIS AGREEMENT WILL BE HELD IN FLORIDA AND IN ACCORDANCE WITH THE MOST RECENTLY EFFECTIVE COMMERCIAL ARBITRATION RULES OF THE AMERICAN ARBITRATION ASSOCIATION. THE ARBITRATION PROCEEDING WILL BE DECIDED BY A SINGLE ARBITRATOR AND THE ARBITRATOR WILL DECIDE THE ARBITRATION PROCEEDING BY APPLYING THE LAWS AND LEGAL PRINCIPLES OF THE STATE OF FLORIDA AND THE FEDERAL LAWS OF THE UNITED STATES. THE LOSING PARTY WILL BE REQUIRED TO PAY THE PREVAILING PARTY’S REASONABLE ATTORNEYS’ FEES. YOU AND EVOLVE AGREE THAT BOTH PARTIES WILL BE REQUIRED TO BE PRESENT WITHIN THE STATE OF FLORIDA IN ORDER TO PERFORM THEIR OBLIGATIONS UNDER THIS AGREEMENT. YOU AND EVOLVE AGREE TO SUBMIT TO THE PERSONAL JURISDICTION OF ANY SUCH ARBITRATOR OR ARBITRATION PROCEEDING.
18. COPPA Compliance. The Website is not directed to persons under the age of eighteen (18) and Evolve will not knowingly collect personally identifiable information from children under the age of eighteen (18). If Evolve inadvertently collects personally identifiable information, Evolve will delete the personally identifiable information in accordance with its security protocols, upon notice.
19. Miscellaneous Provisions. A finding that any term or provision of this Agreement is invalid or unenforceable will not affect the validity or enforceability of this Agreement. Any term or provision of this Agreement that is found to be invalid or unenforceable will be reformed to the extent necessary to make it valid and enforceable.
You understand and agree that no term or provision of this Agreement will be deemed to have been waived and no breach will be deemed to have been consented to unless said waiver or consent is in writing and signed by the party to be charged.
20. Term. This Agreement remains in full force and effect, unless stated otherwise elsewhere in this Agreement, as long as you use the Website. Notwithstanding the above, Evolve may, with or without notice, remove content, suspend a Member’s account privileges, or delete a Member account.
21. Notice. Any notice required under this Agreement must be made in writing, with a copy via email, to Evolve Personal Health, Inc, 4221 W El Prado Blvd, Tampa, FL 33629; email@example.com.
Effective Date: May 1, 2018
1. EvolvePersonalHealth.com may collect the following personally identifiable information from you:
- Any information that you voluntarily submit to the Website, for example, without limitation, health issues that concern you and whether you have addressed certain behaviors and/or habits;
- EvolvePersonalHealth.com preferences;
- First and last name;
- Date of birth;
- Email address;
- Payment information, including, without limitation, credit/debit card, merchant account, or other payment information; and
- Other required account or other information to utilize the service.
2. EvolvePersonalHealth.com may also collect the following additional information from you:
- Your IP address;
- Your browser and search engine information;
- Your visitor history;
- Your geolocation;
- Your usage of the Website, including, without limitation, any links or items clicked or pages viewed and statistics;
- Information stored in cookies, pixel tags, or web beacons, but not for tracking of users;
- Analytic data from Google Analytics; and
- Any other additional analytic data that you voluntarily submit to the Website.
3. EvolvePersonalHealth.com uses this personal or personally identifiable information to: Provide you with the Website, communicate with you, identify and fix problems with the Website, update you on changes to the Website, communicate with you concerning your account, to complete a transaction you initiated, and to update you on EvolvePersonalHealth.com’s services offered through the Website or the services of third parties.
4. EvolvePersonalHealth.com stores your personal or personally identifiable information in the following manner: Your personal or personally identifiable information is stored and processed on computers in the United States and, through your use of the Website, you unequivocally consent to the processing and storage of your personal and personally identifiable information within the United States. You understand and agree that EvolvePersonalHealth.com may continue to store your information after you cease use of the service or disable your Member account.
EvolvePersonalHealth.com uses commercially reasonable and standard technology to help prevent against the unauthorized disclosure of your personal or personally identifiable information. Though it undertakes commercially reasonable efforts to protect your personal and personally identifiable information, no Website is completely safe. Accordingly, you provide all such personal or personally identifiable information at your own risk.
5. Evolve may share your personal or personally identifiable information with third parties in the following circumstances: Where Evolve has obtained your consent, where sharing or disclosure of your personal or personally identifiable information is necessary to provide you with the Website and/or services associated therewith, where sharing or disclosure of your personal or personally identifiable information is necessary to share personal or personally identifiable information with Evolve’s parents, subsidiaries, successors, assigns, licensees, affiliates, or business partners, where EvolvePersonalHealth.com has been purchased by a third party, where sharing or disclosure of your personal or personally identifiable information is necessary to respond to requests by government authorities, where your personal or personally identifiable information is demanded by a court order or subpoena, where sharing or disclosure of your personal or personally identifiable information is needed to protect the employees, independent contractors, officers, directors, members, users, or shareholders of Evolve, and where sharing or disclosure of your personal or personally identifiable information is needed to help prevent against fraud or the violation of any applicable law, statute, regulation, ordinance, or treaty.
You understand and agree that Evolve may specifically share some of your information with mobile service providers and payment processors in order to complete the services offered through the Website.
Evolve may sell your information to third parties.
7. You may stop EvolvePersonalHealth.com from collecting your personal or personally identifiable information by: Adjusting your web browser settings, limiting cookies or other tracking techniques, deleting your Account, or by ceasing your use of the Website. You may contact Evolve with any requests regarding your information, but Evolve reserves the right to act or not act upon such requests.
You may also opt out of receiving certain email communications after you register as a Member.
8. When using the Website, you are obligated to: Inform Evolve of any changes to your personal or personally identifiable information, and protect the security of your username, password, and personal or personally identifiable information.
9. California Residents. California residents have the right to receive information that identifies any third party companies or individuals that Evolve Personal Health, Inc. has shared your Personal Information with in the previous calendar year, as well as a description of the categories of Personal Information disclosed to that third party. You may obtain this information once a year and free of charge by contacting Evolve Personal Health, Inc. at the address below.
10. Children’s Online Privacy Protection Policy. The Website are not intended for or directed to users under the age of 21, and EvolvePersonalHealth.com does not knowingly or intentionally collect personally identifiable information from children under the age of 13 or other minors. Where appropriate, Evolve takes reasonable measures to determine that users are adults of legal age and to inform minors not to submit such information to the Website or in response to advertisements. If you are concerned that personal information may have been inadvertently provided to or collected by EvolvePersonalHealth.com, please contact us immediately so appropriate steps may be taken to remove such information from EvolvePersonalHealth.com’s database.