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EB EMPLOYEE SOLUTIONS, LLC

TERMS OF USE

Welcome to www.wellintune.com. This website is owned and operated by EB Employee Solutions, LLC (“EBES”). These Website Terms and Conditions of Use (the “Terms”) contain the terms and conditions upon which EBES is willing to provide you access to and use of www.wellintune.com and all related pages, information, databases, materials, and services (collectively, the “Site”), and governs your use and purchase of any products and services available through the Site (collectively, the “Services”). These Terms form an agreement between you and EBES. If you do not agree to be bound by these Terms, you may not access or use the Site or the Services. Use of the Site or purchase or use of the Services indicates your acceptance of these Terms and EBES’s Website Privacy Policy. Please scroll down through these Terms to review important provisions regarding arbitration, limitation of liability, waivers, indemnities, and other important topics. 

If you have questions regarding these Terms, please contact EBES at please email or write to us at: 

Email: privacy@wellintune.com 

Address: EB Employee Solutions, LLC
245 Main Street Suite 605
White Plains, NY 10601   

EBES Services 

EBES is primarily provider of tools for business owners and their employees to manage their health reimbursement arrangements and associated activities through the Internet. EBES does not provide financial, legal, tax, or medical advice regarding any employee benefit programs or otherwise. Content regarding various financial, legal, tax, or medical concerns is provided for informational purposes only, and is not intended to be personalized or professional advice. Please consult with your financial, investment, legal, tax, and medical professionals regarding the applicability of such content to you and its impact on your choice of benefit plans. Unless otherwise prohibited by applicable law or contract, you release EBES from and waive any and all claims, demands, and causes of action of every kind and nature, known and unknown, which exist or hereafter arise against EBES related in any way to your health reimbursement arrangements or the associated Services we provide to you. 

Account Registration and Services: Unauthorized Use 

To use the Services, you must register through the Site and have an existing relationship with EBES (the “Account”). By opening an Account, you have a limited license to use the Site and Services subject to any other terms and conditions of use and/or payment in these Terms or on the Site. These Terms cannot be waived or modified by any oral communications between you and EBES. 

Account Information: Identity and Password 

Accounts may not be transferred, sold, or used by any other party without the express permission of EBES. You agree that any information you provide to EBES, whether through the Account registration process or otherwise, including, without limitation, passwords, usernames, login ID’s, business profiles, credit card information, any information regarding a business or its employees, personal medical information, and any other personally identifiable information whether through questionnaires, registration forms, or other information requests (“Account Information”), will be true, accurate, current, and complete. You agree not to provide Account Information that is false, inaccurate, misleading, or fraudulent. You agree to provide EBES with any information reasonably requested by EBES related to the provision of the Services and necessary for administration of the Account. 

You are solely responsible for all transactions and transmissions that occur through the use of your Account Information, and it is your responsibility to maintain and promptly update your Account Information. You agree that EBES is not liable to you or any third party for damages or losses related to the accuracy or disclosure to EBES of your Account Information. It is your responsibility to maintain the confidentiality of your Account Information. EBES requires that you agree not to share your Account Information with another person, nor allow another person to use your Account Information. If you believe that someone has used your Account Information to access any EBES services without your authorization, please contact EBES immediately. 

Please review EBES’s Website Privacy Policy for more information regarding EBES’s policies and procedures for disclosing and using your Account Information. Subject to the Website Privacy Policy, EBES retains a perpetual, irrevocable, non-exclusive, royalty-free, worldwide license to use and store your Account Information (in any media, currently known or unknown) related to these Terms or EBES’s provision of the Services. 

You agree not to impersonate any person or entity, misrepresent any affiliation with another person, entity, or association, use false email or other headers, or otherwise conceal your identity from EBES for any purpose. If you believe that someone has used your Account Information to access the Site or use or purchase the Services without your authorization, please contact us immediately at (914) 220-0903 or privacy@wellintune.com. 

Updating Terms 

EBES reserves the right to change, delete, or update the Terms or other policies that govern use of the Site or the Account at its discretion, at any time, for any reason, without notice. Any amendments and modifications by EBES will be prospective only, and unless otherwise provided in this Agreement, will be effective upon being posted on the Site. EBES encourages you to review these Terms periodically for updates and changes. Your continued access or use of the Site or your Account will be deemed acceptance of all changes. 

If you have another relationship with EBES, that relationship is governed by the agreement specific to that particular relationship. The terms of these other agreements are not altered by these Terms or by any content on the Site, provided that nothing in these other agreements will diminish the protections and rights provided to EBES under these Terms. Except as may be expressly provided in additional terms of use for specific areas of the Site or the above-referenced agreements, these Terms constitute the entire agreement between you and EBES with respect to the use of the Site or the Account. 

Restrictions on Use of EBES Materials and the Site 

EBES or its content providers own all of the content, materials, and other intellectual property related to the Site and the Services, including without limit all text, graphics, photographs, music, data, images, audio and video clips, software, names, button icons, logos, images, designs, titles, words or phrases, page headers, service names, trademarks, patents, and copyrights (collectively, “Materials”). You have no rights to the Materials, except as expressly set forth in these Terms. Any use of the Materials, except as permitted by these Terms, is expressly prohibited. 

The contents and use of the Site (including EBES’s name and the logos and software used in the Site) are registered and/or protected by U.S. and international copyright, trademark, and other laws. 

You agree to retain all copyright and other proprietary notices contained in the Site or the Services. You may not delete or change any copyright or trademark notices, and cannot alter or modify the content in any manner without the express written permission of EBES. 

You further agree that you may not: 
  • use the Site to transmit, copy, reproduce, republish, upload, post, transmit, email, or distribute in any way material or content that infringes any copyright, trademark, proprietary, or other right of any party or that violates these Terms; 
  • copy (except as set forth above for noncommercial personal use), modify, distribute, create any derivative or compilation work from, or display EBES’s name or logo, or any text, graphic images, or other content from the Site or redeliver such content using framing or similar technology; 
  • use any device designed to provide repeated automated access to any Site other than those made generally available by EBES; 
  • include any EBES trademarked materials, the name of any EBES personnel, or any variation of these items as a metatag or hidden textual element, or in any other fashion that may create a false or misleading impression of affiliation, sponsorship, or endorsement between EBES and you, any other party, or any other website, or otherwise use these items without EBES’s express written permission; 
  • collect, harvest, or store personal data about other users of the Site or the Services; 
  • upload, email or otherwise transmit to EBES or through the Site or any EBES computer network any of the following: sexually-explicit images or statements; advertising, promotional, or other unauthorized communication, including without limitation, “junk mail,” surveys, unsolicited email, “spam,” “chain letters,” “pyramid schemes,” or other inappropriate or prohibited materials; and any material that contains viruses, Trojan horses, worms, or any other computer code, files, or programs that might interrupt, limit, or interfere with, damage, surreptitiously intercept, or expropriate any system, data, or information related to the Site or any computer software, hardware, or communications equipment that is owned, leased, or used by EBES; 
  • create a link to the Site without EBES’s prior written permission; 
  • use the Site or Services to post or transmit any threatening, false, misleading, abusive, harassing, libelous, defamatory, vulgar, obscene, scandalous, inflammatory, or profane material or any material that could constitute or encourage conduct that would be considered a criminal offense, give rise to civil liability, or otherwise violate any applicable local, state, national, or international law;
  • use any robot, spider, scraper, or any other automated means to access the Site or the Services for any purpose without EBES’s express written permission;  
  • forge any TCP/IP packet header or any part of the header information in any email or posting; or 
  • take any action that imposes, or may impose, in EBES’s sole discretion, an unreasonable or disproportionately large load on EBES’s infrastructure; 
  • interfere or attempt to interfere with the proper working of the Site, the Services, or any activities conducted on the Site; or 
  • bypass measures used by EBES to prevent or restrict access to the Site or the Services, violate, or attempt to violate the security or authentication measures of the system, or attempt to prove, scan, or test the vulnerability of a system or network without proper written authorization from EBES. 

EBES reserves the right to disclose the identity of anyone posting or transmitting any information or materials violating the above prohibitions to law enforcement authorities or pursuant to any court order requesting or directing EBES to disclose such information. 

Termination, Removal of Materials, and Monitoring 

These Terms are effective until terminated by either party. If you no longer agree to be bound by these Terms, you must cease use of the Site, the Services and the Account. You agree that EBES may terminate, restrict, or suspend part or all of your license to access the Site and your Account, or delete any content transmitted to or through the Site and to your Account, at any time, at its sole discretion, without prior notice to you and without any liability to you. EBES also reserves the right to take any action relating to user-submitted information that it deems necessary or appropriate if such information, as determined in EBES’s sole discretion, may create liability for EBES, its agents, or its contractors, or may affect EBES’s business relationships or contracts with its agents or its contractors. EBES further reserves the right to remove any materials that are defamatory, abusive, illegal, harassing, immoral, disruptive, or do not conform to these Terms, though EBES will be under no affirmative obligation to monitor any of the foregoing or to otherwise screen or monitor any communications or information prior to its posting. You agree EBES has the right, but is not obligated, to monitor your use of the Site and Account and any communications made by you related to such use in any manner, and you agree to release EBES from any liability related to its monitoring activities. If EBES denies you access to the Site or your Account, you agree to destroy all materials obtained from the Site and all copies of those materials with the exception of your Account Information. You acknowledge that, upon termination, EBES may immediately deactivate or delete your Account and all related information and files in the account and bar you from further access to the files, the Site, the Services, and your Account. 

Website Linking and Third-Party Information Included in Site 

For your general informational use only, EBES may provide access to third party websites. These links will allow you to leave the Site. The linked sites are not under the control of EBES and EBES is not responsible for the contents of any linked site. By providing access to other websites, EBES is not recommending or supporting any third party, is not recommending the purchase or sale of any products or services of a third party, and is not endorsing or acknowledging that it is affiliated with any website’s sponsoring organization. EBES is not obligated to maintain, verify, update, or post any corrections to such third party information for any reason. Nothing in the Site referencing any third parties with whom EBES conducts business, and nothing in these Terms, will be deemed to create any agency relationship, affiliation, or sponsorship among EBES and such third parties or you, or make the third parties or you partners or joint venturers with EBES, or otherwise provide you or any third parties with any rights to act on EBES’s behalf. EBES does not represent or guarantee the truthfulness, accuracy, completeness, timeliness, authorship, suitability of content, or reliability of communications posted by third parties, nor does EBES endorse any opinions expressed by users or any third parties using the Site. Consequently, you agree that EBES does not guarantee, and is not liable to you for any third party content.   

Disclaimers and Limitations of Liability 

In using this Site you acknowledge and accept that there are risks, including, without limitation, the risk of harm of people acting under false pretenses. You assume all risks associated with dealing with other users with whom you come in contact through the Site and other parties that use the Site or your Account Information for unauthorized or illegal purposes. 

TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOU AGREE THAT ALL INFORMATION, SERVICES, SOFTWARE AND CONTENT AVAILABLE THROUGH THE SITE, AND THE SITE ITSELF, ARE FURNISHED FOR GENERAL INFORMATIONAL PURPOSES ONLY, AND ARE FURNISHED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY IMPLIED OR EXPRESSED WARRANTY OF ANY KIND (INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SUITABILITY, SECURITY, CORRECTNESS, AND NON-INFRINGEMENT).  EBES AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, AGENTS, AND SUPPLIERS (COLLECTIVELY THE “ EBES PARTIES”) MAKE NO REPRESENTATION OR WARRANTY REGARDING, ARE NOT RESPONSIBLE FOR, AND DISCLAIM ALL LIABILITY FOR, THE CONTINUED AVAILABILITY, RELIABILITY, ACCURACY, RESULTS, OR PERFORMANCE OF THE SITE OR ANY MATERIAL ON THE SITE, THE PERFORMANCE OF THE INTERNET, THE DOWNLOADING COMPATIBILITY OF ANY MATERIALS OR SOFTWARE WITH YOUR COMPUTER SYSTEM, THE EXISTENCE OF ANY VIRUS, WORM, MALICIOUS CODE, OR OTHER DISABLING DEVICE FROM ANY SOURCE, THE UNAUTHORIZED ACCESS TO OR USE OF YOUR INFORMATION BY A PARTY OTHER THAN EBES, ANY TECHNICAL FAILURES (INCLUDING HARDWARE OR SOFTWARE FAILURES), INCOMPLETE, SCRAMBLED, OR DELAYED COMPUTER TRANSMISSIONS, AND/OR TECHNICAL INACCURACIES, OR LOSS OR USE OF DATA, AS WELL AS UNAUTHORIZED ACCESS OF USER TRANSMISSIONS BY THIRD PARTIES ARISING OUT OF OR RELATED TO THESE TERMS. NO ONE IS AUTHORIZED TO MAKE ANY WARRANTY ON EBES’S BEHALF, AND YOU CANNOT RELY ON ANY OTHER STATEMENT OF WARRANTY. YOU ASSUME RESPONSIBILITY FOR THE ACCURACY, APPROPRIATENESS, AND LEGALITY OF ANY INFORMATION YOU SUPPLY TO EBES. 

YOU AGREE THAT THE EBES PARTIES ARE NOT LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY, OR PUNITIVE DAMAGES. IN NO EVENT WILL THE EBES PARTIES’ TOTAL LIABILITY TO YOU FOR ANY DAMAGES, LOSSES, FEES, AND EXPENSES (INCLUDING ATTORNEYS’ FEES), WHETHER IN CONTRACT, TORT, TRESPASS, OR OTHERWISE EXCEED THE AMOUNT (IF ANY) PAID BY YOU TO EBES TO PURCHASE THE PARTICULAR PRODUCTS OR SERVICES WHICH FORM THE BASIS OF YOUR CLAIM, THE AMOUNTS PAID BY YOU TO EBES TO PURCHASE PRODUCTS OR SERVICES IN THE THREE MONTHS PRECEDING ANY CLAIM WHERE YOUR CLAIM DOES NOT RELATE TO PRODUCTS OR SERVICES PURCHASED, OR $100 IF YOU HAVE NOT PAID ANY AMOUNTS TO EBES. IF YOU LIVE IN A STATE THAT DOES NOT ALLOW THE WAIVER OF CERTAIN WARRANTIES, OR LIMITATIONS OR DAMAGES WAIVERS DESCRIBED IN THIS SECTION, SOME OF THESE WAIVERS AND LIMITATIONS MAY NOT APPLY TO YOU. YOU AGREE TO PROMPTLY NOTIFY EBES IN WRITING IF YOU BELIEVE YOU HAVE ANY CLAIM AGAINST THE EBES PARTIES, AND, IN ANY EVENT, YOU AGREE THAT ANY CLAIM NOT BROUGHT WITHIN ONE YEAR OF YOUR DISCOVERY WILL BE DEEMED WAIVED AND RELEASED. 

Indemnification 

In consideration of your use of the Site, you hereby agree to indemnify the EBES Parties and any third party information or service providers from and against any and all claims, losses, liabilities, damages, costs, and expenses (including, without limitation, reasonable attorneys’ fees and costs) arising out of or related to your: (i) breach of these Terms, (ii) violation of any person’s or entity’s legal rights (including, without limitation, copyright, patent, trade secret, trademark, or other proprietary rights, or publicity, contract, moral, or privacy rights) (iii) violation of any applicable law, rule, or regulation, (iv) negligence, recklessness, or misconduct, or (v) unauthorized use of your Account Information by a party other than EBES. 

Applicable Law 

EBES controls and operates the Site from its offices within the State of New York in the United States. If you choose to access the Site from other locations, you do so at your own risk and initiative and are responsible for compliance with any applicable local laws and regulations. You agree that the laws of the State of New York (excluding any choice of law rules) govern your rights and obligations relating to EBES and your use of the Site. 

Exports 

You agree to comply with all United States export laws and regulations. You assume sole responsibility for any required export approval and/or licenses and all related costs and for the violation of any United States export law or regulation. You acknowledge that export of the products or services and any related documentation, in whole or part, contrary to United States law is prohibited. 

You agree that no part of the products or services available through the Site, either in whole or part, is being acquired for shipment, transfer, or re-export, directly or indirectly, to proscribed, embargoed, or prohibited countries or their nationals, denied destinations, or for prohibited activities or for weapons. 

Severability and Waiver 
If any provision of these Terms is found to be invalid by any court having competent jurisdiction, the invalidity of such provision will not affect the validity of the remaining provisions of these Terms, which will remain in full force and effect. EBES’s failure to exercise or delay in exercising any right, power, or privilege hereunder will not operate as a waiver hereof, except as expressly provided herein. Any waiver by EBES of a breach of any provision of these Terms will not be deemed to be a waiver of any other or subsequent breach and will not be construed to be a modification of the Terms unless and until agreed to in writing by EBES. 

Additional Terms 

Certain areas of this Site may be subject to additional terms of use. By using such areas or any part thereof, you agree to be bound by the additional terms of use applicable to such areas. 

Copyright Agent for Claims of Copyright Infringement 

EBES adheres to the Pursuant to the Digital Millennium Copyright Act (“DMCA”) and does not tolerate content that appears to infringe any copyright or other intellectual property rights or otherwise violates these Terms and will respond to notices of alleged copyright infringement that comply with the law and are properly provided to us. We reserve the right to delete or disable content alleged to violate these Terms and to terminate repeat infringers. Our designated agent for notice of alleged copyright infringement is: 

Attn: Wendy Brighton
EB Employee Solutions, LLC
245 Main Street Suite 605
White Plains, NY 10601 

Phone: (914) 220-0903 
Email: wbrighton@differencecard.com 
fax: (914) 220-0901 

Federal law requires your DMCA Notice to include the following information: 
  • Identification of the copyrighted work that you claim has been infringed; 
  • Identification of the material, including URL, that you claim is infringing, with enough detail so that we may locate it; 
  • Your address, telephone number, and email address; 
  • A statement declaring under penalty of perjury that (a) you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; (b) the above information in your notice is accurate, and (c) you are the owner of the copyright interest involved or you are authorized to act on behalf of that owner; and 
  • Your physical or electronic signature. 

Dispute Resolution 

If a dispute arises between you and any of the EBES Parties, it is the goal of EBES to work in good faith with you to quickly and amicably resolve the dispute. All disputes, claims, or controversies (“Claims”) arising under or relating to these Terms, the Site, or the Services that cannot be resolved informally, will be finally resolved by binding arbitration as described herein. 

Any dispute arising under or related to these Terms, the Site, or the Services (including the arbitrability of such a dispute and the existence, validity, interpretation, performance, termination, or breach thereof) will be finally settled by binding arbitration by a single arbitrator in accordance with the thencurrent Commercial Arbitration Rules of the American Arbitration Association (“AAA”), with the arbitration to be commenced no later than one year after such Claim accrues (in absence of which it will be deemed forever waived). A judgment upon an arbitrator’s award may be entered by any court of competent jurisdiction. To the extent permitted by applicable law, you agree that there will be no class action arbitration related to this Agreement or the Services. All parties will bear their own expenses, except that the parties will equally share the expenses of the arbitrator (except for the required nonrefundable filing fees which will be paid solely by the party asserting the related Claim). 

The above obligations to arbitrate will not prevent a party from seeking a preliminary injunction, temporary restraining order, specific performance, or other procedural actions in a court of competent jurisdiction to obtain interim relief when deemed necessary by such court to preserve the status quo or prevent irreparable injury pending resolution by arbitration of the actual dispute. 

Exclusive jurisdiction and venue for arbitration or any other legal action or proceeding in any way related to the Site, the Services, or this Agreement will be in White Plains, New York. Any matter brought before a court will be brought solely in the state or federal courts located in White Plains, New York. 

Independent Parties 

EBES and you are not legal partners or agents; instead, our relationship is that of independent contractors. This contract is solely for your and our benefit. It is not for the benefit of any other person, except for permitted successors.  

Entire Agreement 

These Terms, and any policies referenced and attached hereto, constitute the entire agreement between you and EBES related to the Site and services. All prior agreements, representations, statements, negotiations, and undertakings with respect to the subject matter herein are superseded by these Terms. These Terms may not be amended, altered, or added to in any manner except as set forth by a document in writing and signed by an authorized representative of each party. If there is a conflict between these Terms and any terms appearing on the Site, or in any policies, those terms that are more favorable to EBES will govern. 

Headings 

The headings of the sections in these Terms are strictly for convenience and will not in any way be construed as amplifying or limiting any of these Terms. 

Survival of Obligations 

The terms that by their nature are intended to survive beyond the termination, cancellation, or expiration of these Terms will survive. 

Copyright © 2014 EB Employee Solutions, LLC. All rights reserved.