These Terms of Service (“Terms”) govern your use of the Vital platform, including the mobile application Vital Health App, any connected Vital Health MOD devices and any other website or service that links to or refers to these Terms (collectively, the “Services”). These terms are a legal contract between you and Vital USA, Inc. and its affiliates (collectively, “we” or “us”), so it is important that you review them carefully before using the Services. By accessing or using the Services, you acknowledge that you have read, understood, and agree to be bound by the Terms. If you do not agree to the Terms, do not access or use the Services.
THESE TERMS CONTAIN DISCLAIMERS OF WARRANTIES, DISCLAIMERS OF LIABILITY, AND A BINDING ARBITRATION CLAUSE AND CLASS ACTION WAIVER. PLEASE READ THEM CAREFULLY.
We may change the Terms or modify or withdraw any features of the Services at any time at our sole discretion. We will notify you of changes by posting the updated Terms within our mobile application or by other appropriate means. If you continue to use the Services after changes are posted, you will be deemed to have accepted the change.
You must be at least 18 years of age to use the Services.
2. We Do Not Provide Medical Advice; Other Important Disclaimers
The Services enable you to connect Vital Health MOD and compatible third-party devices to the Vital platform so that you can access the outputs of device sensors (“Sensor Data”). Such Sensor Data may include, for example, heart rate and respiratory rate. The Services and Sensor Data are not intended as medical devices or to be used for any medical, diagnostic, or health care uses. They are intended for fitness and wellness uses only. You are responsible for seeking professional medical diagnosis and treatment and for discussing any information available through the Services with your healthcare provider. The Services and Sensor Data are not a substitute for, nor do they replace, professional medical advice, diagnosis or treatment.
We make no representations or warranties of any kind as to the accuracy or completeness of any Sensor Data or other content or material made available through the Services (collectively, the “Content”). IF YOU RELY ON THE SERVICES OR CONTENT, YOU DO SO AT YOUR OWN RISK. DO NOT USE OR RELY ON THE SERVICES OR CONTENT TO DIAGNOSE OR TREAT A MEDICAL CONDITION OR TO DELAY OR DECLINE TO SEEK MEDICAL ADVICE. WE ARE NOT RESPONSIBLE OR LIABLE FOR ANY DECISIONS YOU MAY MAKE IN RELIANCE ON THE SERVICES AND CONTENT. THE SERVICES ARE NOT INTENDED TO BE, AND SHOULD NOT BE TAKEN TO BE, THE PRACTICE OF MEDICINE OR THE PROVISION OF MEDICAL CARE.
The Vital Health app may not be available on all mobile operating systems. We may change, withdraw, or discontinue the Services at any time and at our sole discretion.
The Services store and transmit information on your behalf, and are not subject to the Health Insurance Portability and Accountability Act (“HIPAA”). Accordingly, the Services may not meet HIPAA’s requirements regarding the security of protected health information, and we make no representations or warranties with respect to the security of the Services.
As a courtesy, we may, but have no obligation, to enable you to connect third-party devices and applications to the Services. For example, you may be able to authorize third-party devices or applications to access, store, and/or use the Sensor Data, such as in connection with providing you with wellness or other services. We are not responsible for the privacy, confidentiality, data security, availability, accuracy or any other practices of these third parties, and we disclaim any and all responsibility for them and their practices. You use such third-party devices and applications at your sole risk and expense.
Vital Health MOD devices should not be used by individuals with known circulatory problems that affect their fingers; individuals without a left index finger or with only a partial left index finger; individuals with known bleeding/bruising disorders; or individuals who cannot remain still for several minutes during measurements. This device is for spot-checking physiological parameters and should not be used for continuous measurements.
3. Registration; Electronic Communications
The Services include a feature that enables you to transmit your Sensor Data and other Content via e-mail to the primary e-mail address on your account. We are not responsible for the confidentiality and security of your Content once you have initiated transmission via e-mail. In particular, emails sent through the Services are not encrypted, and therefore there remains some level of risk that the information may be read by a third party.
You are solely responsible for maintaining the confidentiality of your account and password, and you agree to accept responsibility for all activities that occur under your account. We are not liable for any loss or damage caused by your failure to maintain the confidentiality of your account credentials. If you have reason to believe that your account is no longer secure, then you should promptly change your login information and notify us at email@example.com.
You agree that the information you provide to us is accurate and that you will keep it accurate and up-to-date. You must notify us immediately if you change your e-mail address.
You consent to transact with us electronically and receive all legal notices, warranty notices, product releases, and other communications electronically, either by e-mail or by notices posted on the Services. For this and other purposes, you agree to provide us with a valid, working email address and to notify us of any changes to your e-mail address. You are responsible for maintaining an Internet browser and computing equipment capable of accessing the Services.
4. Copyright; Other Intellectual Property Rights
You acknowledge that all copyrights and other intellectual property rights related to the Services and Content are owned by us or our third-party licensors to the full extent permitted under the United States Copyright Act and international copyright laws. You may download Content for your own personal, non-commercial use, and by downloading the Content, you agree to abide by any copyright notice or other restrictions contained in or pertaining to such Content in addition to these terms. You must keep intact any author attribution and copyright or trademark notice in any such Content that you download.
Except as expressly authorized in these Terms or in writing by us, you are prohibited from publishing, reproducing, distributing, entering into a database, displaying, performing, modifying, creating derivative works, transmitting, or in any way exploiting any part of the Services or Content. Without limitation to the foregoing, you may not use Content for any commercial purpose.
To the extent the Vital Health app enables you to upload, store, share, or display images, data, text, and other information and content to or via the Services (“User Content”), you represent and warrant that you have the requisite rights to do so and to grant us the licenses contemplated herein. By making your User Content available on or through the Services you hereby grant us a non-exclusive, transferable, royalty-free license to use, copy, modify, publicly display, and distribute your User Content, in whole or in part, in any media, in connection with offering and improving our products and services.
If you provide information, opinions or other feedback concerning your testing, evaluation, or use of the website to us (for example, suggestions for enhancements or bug reports) (“Feedback”), you agree that we shall be the sole owner of that Feedback and have the right to use such Feedback without any compensation to you.
5. Trade and Service Mark Rights
All rights in the product names, company names, trade names, logos, service marks, trade dress, slogans, product packaging, and designs of the Services, whether or not appearing in large print or with the trademark symbol, belong exclusively to us or our licensors and are protected from reproduction, imitation, dilution, or confusing or misleading uses under national and international trademark and copyright laws. The use or misuse of these trademarks or any materials, except as authorized herein, is expressly prohibited, and nothing stated or implied on the Services confers on you any license or right under any patent or trademark of us, our affiliates, or any third party.
6. Prohibited Conduct
You may not access or use, or attempt to access or use, the Services to take any action that could harm us or any third party, interfere with the operation of the Services, or use the Services in a manner that violates any laws. For example, and without limitation, you may not:
• Take any action that violates or threatens our system or network security, including but not limited to testing the vulnerability of any our system or breaching any security or authentication measures.
• Use the Services or Content in any manner that constitutes an infringement of our rights or the rights of other users or third parties, including copyrights, or attempt to decipher, decompile, disassemble, or reverse-engineer any of the software comprising or in any way making up a part of the Services.
• Access parts of the Services to which you are not authorized, or attempt to circumvent any restrictions imposed on your use or access of the Services.
• Take any action that imposes an unreasonable or disproportionately large load on our network or infrastructure or involves use of automated means to compile information.
• Use any device, software, or routine to interfere or attempt to interfere with the proper working of the Services or any activity conducted on the Services.
Engage in any other conduct that restricts or inhibits any other person from using or enjoying the Services.
Engage in any other use or activity that violates any applicable law or regulation or would give rise to liability.
Violations of these Terms may result in civil or criminal liability. We may investigate violations of these Terms and we may also work with law enforcement authorities to prosecute users who violate the Terms.
7. Jurisdictional Issues
We make no representations that the Services are appropriate for users in countries other than the United States, which countries may have different legal or regulatory requirements or restrictions. Those who choose to access the Services from locations outside the United States do so on their own initiative and are responsible for compliance with national and local laws, if and to the extent national and local laws are applicable. Nothing herein should be considered a solicitation, promotion, or indication for any product that is not permitted by the laws or regulations of the country where you reside.
8. Discontinuation of Use; Termination
You may cease using the Services at any time. Please consult your device settings for information about how to permanently remove or uninstall the Vital Health mobile application from your device.
We also reserve the right, in our sole discretion, immediately and without notice to suspend or terminate your ability to access the Services and/or the Terms, without limitation to any other remedy we may have to enforce any violation of these Terms. Otherwise applicable sections of the Terms shall survive termination.
9. Arbitration; Class Action Waiver
With respect to any and all disputes arising out of or relating to the Services or these Terms, both Vital USA, Inc. and you agree to negotiate in good faith and undertake reasonable efforts to cooperate with one another in order to achieve a mutually satisfactory resolution. If the Parties do not resolve any dispute by informal negotiation, any other effort to resolve the dispute will be conducted exclusively by binding individual arbitration as described in this section. You are giving up the right to litigate (or participate in as a party or class member) all such disputes in court before a judge or jury.
YOU FURTHER AGREE THAT ANY PROCEEDINGS TO ARBITRATE OR LITIGATE ANY DISPUTE IN ANY FORUM WILL BE CONDUCTED SOLELY ON AN INDIVIDUAL BASIS. NEITHER OF THE PARTIES WILL SEEK TO HAVE ANY DISPUTE HEARD AS A CLASS ACTION OR IN ANY OTHER PROCEEDING IN WHICH EITHER PARTY ACTS OR PROPOSES TO ACT IN A REPRESENTATIVE CAPACITY. No arbitration or other proceeding will be combined with another without the prior written consent of all parties to all affected arbitrations or proceedings.
The Parties agree that all disputes subject to arbitration that cannot be settled through informal negotiation will be resolved exclusively and individually through confidential binding arbitration in accordance with the Consumer Arbitration Rules of the American Arbitration Association. The arbitrator’s award shall be final, subject only to right of appeal under the Federal Arbitration Act, and may be entered and enforced as a judgment in any court of competent jurisdiction. You agree that we may seek any interim or preliminary relief from a court of competent jurisdiction in Florida, necessary to protect its rights or property pending the completion of arbitration.
Any claim not subject to arbitration by this section shall be subject to the exclusive jurisdiction of state or federal courts in Palm Beach County, Florida. The Parties hereby waive any argument that any such court does not have personal jurisdiction or that the forum is not appropriate or convenient.
To the maximum extent permitted by law, you permanently and irrevocably waive the right to bring any claim in any forum unless you provide us with written notice of the event or facts giving rise to the claim within one (1) year of their occurrence.
10. Disclaimer of Warranties
THE SERVICES ARE PROVIDED “AS IS.” WE MAKE NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED (A) THAT THE SERVICES OR CONTENT WILL BE FREE FROM ERROR, OMISSION, INACCURACIES, INTERRUPTION, DEFECT, OR DELAY IN OPERATION; (B) THAT THE SERVICES OR CONTENT OR YOUR ACCOUNT WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; (C) THAT DEFECTS OR ERRORS IN THE SERVICES WILL BE CORRECTED; OR (D) THAT THE CONTENT IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. We are not obligated to correct errors, correct the effects of errors, or provide technical support.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WE DISCLAIM TO THE MAXIMUM EXTENT PERMITTED BY LAW ANY AND ALL (A) WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, (B) WARRANTIES AGAINST INFRINGEMENT OF ANY THIRD-PARTY INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS, (C) WARRANTIES RELATING TO THE TRANSMISSION OR DELIVERY OF THE SERVICES, (D) WARRANTIES RELATING TO THE ACCURACY, RELIABILITY, SECURITY, CORRECTNESS, TIMELINESS, OR COMPLETENESS OF THE SERVICES, CONTENT, OR OTHER MATERIAL MADE AVAILABLE BY US, AND WARRANTIES OTHERWISE RELATING TO PERFORMANCE, NONPERFORMANCE, OR OTHER ACTS OR OMISSIONS BY US OR ANY THIRD PARTY. THE CONTENT AND SERVICES ARE SUBJECT TO CHANGE WITHOUT NOTICE.
11. Limitation of Liability
IN NO EVENT WILL WE OR OUR AFFILIATES OR ANY PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICES BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT FOR THE SERVICES, OR IN CONNECTION WITH ANY FAILURE OF PERFORMANCE, ERROR, TRANSMISSION, COMPUTER VIRUS, OR LINE OR SYSTEM FAILURE. THESE LIMITATIONS APPLY WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL, CONSEQUENTIAL, OR OTHER DAMAGES, OUR LIABILITY IN SUCH JURISDICTIONS SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
WITHOUT LIMITATION, OUR MAXIMUM LIABILITY IN RELATION TO ANY EVENT OR SERIES OF RELATED EVENTS SHALL BE LIMITED TO THE GREATER OF (A) AMOUNTS YOU HAVE PAID US OVER THE PRIOR 12 MONTHS OR (B) $500.
You agree to indemnify and hold harmless us and our parent, VVV Holdings Limited; subsidiaries, VVV Limited, VVV IP Holdings Limited; and affiliates, Arc Devices Limited, Arc Devices USA, Inc; and their owners, directors, officers, managers, employees, shareholders, agents, and licensors, from and against all losses, expenses, damages, and costs, including reasonable attorneys’ fees, resulting from any violation of the Terms or your use of the Services. We reserve the right to take over the exclusive defense of any claim for which we are entitled to indemnification under this Section. In such event, you shall provide us with such cooperation as is reasonably requested by us.
Supplemental Terms. When using the Services, you agree to comply with and are subject to any posted guidelines, rules, or supplemental terms applicable to such services or features, as may be posted from time to time. All such guidelines, rules, or terms are hereby incorporated by reference into the Terms. To the extent that you are asked to review and accept any supplemental terms that expressly conflict with these Terms, the supplemental terms associated with the Services govern with respect to your use of such Service to the extent of the conflict.
No Waiver. Our failure to enforce any provisions of the Terms or to respond to a breach by you or other parties shall not in any way waive its rights to enforce subsequently any terms or conditions of the Terms or to act with respect to similar breaches.
No Partnership. You agree that no joint venture, partnership, employment, or agency relationship exists between the Parties as a result of these Terms or your access to and use of the Services.
Governing Law. This Agreement shall be governed by the laws of the United States and the State of Florida. By using the Services, you waive any claims that may arise under the laws of other states, countries, territories, or jurisdictions.
Entire Agreement. Unless otherwise specified herein, the Terms constitute the entire agreement between the Parties and govern your use of the Services. If any portion of the Terms is held invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intention of the Parties, and the remaining portions shall remain in full force and effect.
14. Contact Us
If you have any questions or comments about the Terms, or if you would like to report any violations of the Terms, please contact us. You may contact us by calling (561) 282-6074 or by e-mailing us at firstname.lastname@example.org, (please put “Terms of Service” in the subject line).
Updated July 15, 2018