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PROGRAM AGREEMENT

This Program Agreement (the “Agreement”) describes the terms and conditions for American Healthways Services, LLC, a Delaware limited liability company, (“We” or “Healthways”) to provide you (“You”, “Your” or “Member”) with access to the Program provided by Healthways (the “Program”). You and Healthways may be referred to below, individually, as a “Party” and, collectively, as the “Parties”.

1)      Your Agreement to Purchase the Program By clicking the “I accept” button at the end of this Agreement You agree to purchase from Healthways a basic fitness membership in the Program pursuant to the terms of this Agreement and to fully perform Your responsibilities under this Agreement.

 

2)   What We will do.

a)      We have arranged the “Program,” which consists of 1) a national network of fitness centers and gyms that participate in the Program, and 2) a network of participating providers who offer discounted complementary and alternative medicine (CAM) services, including but not limited to chiropractic, acupuncture, massage/body work, holistic physicians, exercise/movement specialists, acupuncture, yoga therapists, mind-body specialties, nutritionists, dieticians, and relaxation techniques.

 

b)      Upon Your payment of the fees for the Program You will have access to a basic membership at one or more of the fitness centers and gyms available through the Program for no additional charge, as well as access to the discounted CAM services.  Fitness centers and gyms available through the Program may charge you directly for services not covered under a basic fitness membership. For example, You may be charged for personal training, group training and classes, towels, beverages, and other products and services not covered by the basic fitness membership.

 

c)       We will give You a Program membership card for You to access the available fitness centers and gyms as well as participating CAM providers.  Upon completion of the on-line enrollment process, You may print a temporary membership card.  A permanent card will be mailed to You.  Replacement membership cards will be available, but there may be an additional fee for replacement cards.

 

d)      We will provide customer service for the Program. Customer service will be available by calling a toll-free telephone number.  Program information will also be available in printed materials and on the website for the Program.

 

e)   Healthways reserves the right to, and control of, the use of its name, symbols, trademarks and service marks presently existing or later established.  You shall not use the Healthways’ name, symbols, trademarks or service marks without the prior written consent of Healthways, and shall cease any such usage immediately upon request.

 

f)    Except as expressly set forth in this Agreement, Healthways does not warrant that the any website or any services provided under this Agreement will meet Your requirements or that the operation of the websites prepared by or for Healthways will be uninterrupted or error free.

 

g)   Healthways and its affiliates shall have the right to use any data (in a manner that does not identify You) from the services under this Agreement.

 

3)   What You will do.

 

a)      You will purchase from Healthways a membership in the Program for a minimum of three (3) months’ participation in the Program.  You or Healthways may terminate Your membership in the Program at any time after the first three (3) month period.  A termination will be effective up to sixty (60) days after we receive Your termination request.

 

b)      You will complete the on-line enrollment process and pay the current fees for membership in the Program.  You acknowledge that the current fees for membership in the Program are a $25 enrollment fee and monthly access fees of $25.  Healthways may change the fees for the Program from time to time.  We will not change Your fees without giving you at least thirty (30) days prior notice of the change.  You will directly pay fitness centers and gyms available through the Program for products and services that You purchase that are not covered by a basic fitness membership.

 

c)       You agree that Your enrollment fee and monthly access fees will be paid by pre-approved credit card or by "automatic" withdrawals from an account You maintain in a financial institution pursuant to this Agreement.  You authorize Healthways or its designee to make such automatic withdrawals from your account.  Subject to change, drafts (payments) are made on or about the day of the month that you enrolled.  If You change financial institutions, You will provide Healthways in writing all information needed for the replacement automatic withdrawal at least ten (10) days before the effective date of the change.

 

d)      Any payment that remains unpaid for twenty one (21) days shall entitle Healthways to terminate Your membership.  If You pay Your fees by an electronic funds transfer arrangement, the closing of your account, insufficient funds, or any other action which prevents the automatic charge for Your fees will be a material breach of this Agreement. You agree to pay reasonable attorney fees, legal expenses, and other lawful collection costs and expenses of collection incurred after a breach of this Agreement.

 

e)      YOUR RIGHT TO CANCEL WITHIN THREE BUSINESS DAYS: YOU MAY CANCEL THIS AGREEMENT WITHIN THREE BUSINESS DAYS OF ENROLLMENT BY DELIVERING OR MAILING BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED, WRITTEN NOTICE OF TERMINATION TO HEALTHWAYS. THIS NOTICE MUST SAY THAT YOU DO NOT WISH TO BE BOUND BY THIS AGREEMENT, MUST BE DELIVERED OR MAILED TO HEALTHWAYS AT 701 COOL SPRINGS BLVD., FRANKLIN, TN 37067, AND MUST BE DELIVERED OR MAILED BEFORE 12:00 MIDNIGHT OF THE THIRD BUSINESS DAY AFTER YOUR ENROLLMENT IN THE PROGRAM.  WE WILL PROVIDE A FULL REFUND FOR CANCELLATIONS RECEIVED WITHIN THREE BUSINESS DAYS OF ENROLLMENT.

 

f)        You acknowledge the strenuous nature of the fitness aspect of the Program and the risks associated with Your participation in the Program, including, but not limited to, risks of physical injury, abnormal blood pressure, heart attack and death; and risks associated with the negligence of a participating fitness center or gym or any other organization participating or involved in providing or promoting any classes, functions, programs, testing, or other activities that You participate in at a participating fitness center or gym (including the owners, officers, directors, employees, and representatives of any of the foregoing).

 

g)      You expressly assume all risk for Your health and well-being and expressly assume the risks associated with participating in the Program, including, but not limited to, the negligence of Healthways and its subsidiaries, a participating fitness center or gym, a participating provider, and any other organization participating or involved in providing or promoting any classes, functions, programs, testing, or other activities that You participate in as part of the Program (including the owners, officers, directors, employees, and representatives of the foregoing). You hereby release, waive, discharge and covenant not to sue a participating fitness center or gym Healthways and its subsidiaries, and any other organization providing or promoting classes, functions, programs, testing, or other activities that You participate in at a participating fitness center or gym or as part of the Program (including the owners, officers, directors, employees, and representatives of any of the foregoing) at any time hereafter, from any and all demands, liabilities, losses, or damages (including death or damage to property) caused or alleged to be caused in whole or in part by the negligence of any of the foregoing people or entities.

 

h)      You acknowledge and agree that each of the fitness centers and gyms participating in the Program operate under rules and regulations established for the safety, comfort and protection of members or other patrons, and that You will abide by and be bound by all posted rules and regulations, as well as by rules and regulations subsequently approved and posted or published by the fitness centers and gyms participating in the Program, and that the regulations of the fitness centers and gyms participating in the Program, in effect from time-to-time, are incorporated into this Agreement by reference and made a part hereof. Facilities, equipment, amenities, hours, service, regulations, and policies are subject to change, without prior notice, at the sole discretion of the fitness centers and gyms participating in the Program, and You accept such reasonable changes as a condition of membership.

 

4)   Assignment. Member may not assign this Agreement to a third party without the express written approval of a duly authorized representative of Healthways, and any such attempted assignment shall be void.

 

5)   Amendment. This Agreement may be amended at any time during the term of the Agreement by mutual consent in writing of duly authorized representatives of the Parties. In addition, Healthways may amend this Agreement by providing You sixty (60) days advance written notice of the change.
 

6)   Applicable Law. The validity of this Agreement and of any of its terms and provisions, as well as the rights and duties of the Parties hereunder, shall be interpreted and enforced pursuant to and in accordance with the laws of the State of Tennessee.

 

7)   Disclaimer of Warranties. EXCEPT AS EXPRESSLY PROVIDED ABOVE, HEALTHWAYS PROVIDES THE PROGRAM ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND. HEALTHWAYS EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE AND ANY IMPLIED WARRANTIES ARISING OUT OF COURSE OF PERFORMANCE OR COURSE OF DEALING. MOREOVER, HEALTHWAYS MAKES NO WARRANTY OF ANY KIND AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE PROGRAM, OR AS TO THE ACCURACY, COMPLETENESS OR RELIABILITY OF ANY INFORMATION OR MATERIAL PROVIDED BY OR THROUGH THE PROGRAM.

 
 
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