Welcome, and thank you for your interest in VitalFlo Inc. (“VitalFlo”, “we”, “our,” or “us”) and our website at https://www.vitalflohealth.com (the “Site”), our mobile application (the “App”), and any and all related websites, networks, embeddable widgets, downloadable software, mobile applications (including tablet applications), and other services, information, materials, devices and products we provide to you (collectively, our “Service”).
You acknowledge and agree that, as provided in greater detail in these Terms:
OUR SERVICE IS NOT INTENDED FOR EMERGENCY SITUATIONS. IN THE EVENT OF A MEDICAL EMERGENCY, PLEASE CALL 911 OR APPROPRIATE EMERGENCY RESPONDERS.
- VitalFlo may make unilateral modifications to these Terms.
- The App is licensed, not sold to you, and you may use the Service only as set forth in these Terms.
- Your use of the Service may be subject to separate third-party terms of service and fees, including, without limitation, the terms of service and data, SMS, MMS, and other fees of your mobile network operator (the “Carrier”), which are your sole responsibility.
- VitalFlo is not your healthcare provider and does not provide you any medical advice through the Service, however VitalFlo through the Service may connect you with a Provider (as defined below).
- The Service is provided “as is” without warranties of any kind and VitalFlo’s liability to you is limited.
- These Terms provide that all disputes between you and VitalFlo will be resolved by BINDING ARBITRATION. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract, except for matters that may be taken to small claims court. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury, and your claims cannot be brought as a class action. Please review the “Dispute Resolution and Arbitration” section for the details regarding your agreement to arbitrate any disputes with VitalFlo.
- Use of Our Service.
- Eligibility. This is a contract between you and VitalFlo. By accepting these Terms, you represent and warrant to us that: (a) you are at least eighteen (18) years of age; (b) you have not previously been suspended or removed from the Service; (c) your registration and your use of the Service is in compliance with all applicable laws and regulations; and (d) you are physically located in the United States and within a jurisdiction in which we offer our Service, including, without limitation, when utilizing the Service to receive telehealth consultations from a Provider (as defined below). If you are using the Service on behalf of an entity, organization, or company, you represent and warrant that you are an authorized representative of the entity and that you have the authority to bind that organization to these Terms and you agree to be bound by these Terms on behalf of that organization.
- Fitness for Treatment. In some cases, the Service may not be the most appropriate way for you to seek medical care and treatment. To assist you in determining whether the Service is a fit for your needs, we may ask a series of initial questions during registration. Based on your responses to these questions, we may determine that you are not eligible to utilize the Service. In such a case, you will be notified that you will be unable to use the Service. If this occurs, your registration will remain on file with the Service, but you will not be able to further utilize the Service. You can always return to the Service at a later time to determine whether your eligibility has changed. In addition, even if you are determined to be eligible to utilize the Service, a Provider may, during the course of your use of the Service, determine that your medical condition and/or treatment require an in-person examination or procedure and/or that the Service is otherwise not appropriate for you. In such a case, you may receive a notice from VitalFlo on behalf of a Provider notifying you that you should seek medical care or treatment outside of the Service and/or that you may be unable to continue using the Service and such notice may provide you with additional information regarding next steps.
- VitalFlo Service. Subject to the terms and conditions of these Terms, you are hereby granted a non-exclusive, limited, non-transferable, freely revocable license to access and use the Service and the VitalFlo Materials (as defined in Section 14) solely for your personal, noncommercial use. VitalFlo reserves all rights not expressly granted herein in the Service and the VitalFlo Materials. VitalFlo may terminate this license at any time for any or no reason. Even after your license to access and use the Service and the VitalFlo Materials is terminated, these Terms, including all of your obligations under these Terms prior to such termination, will remain in full force and effect and will govern any and all disputes arising out of your access and use of the Service and the VitalFlo Materials.
- Accounts and Registration. Subject to your eligibility to use the Service and compliance with these Terms, you may access the Service. Some features of the Service may be available without registration; however, to access most features of the Service, you must register for an account. If you open an account on behalf of a company, organization, or other entity, then “you” includes you and that entity. When you register, you will be asked to provide a password. You are solely responsible for maintaining the confidentiality of your account and password. You agree to accept responsibility for all activities that occur under your account. If you have reason to believe that your account is no longer secure, then you must immediately notify us at firstname.lastname@example.org. Furthermore, VitalFlo reserves the right to take any and all action, as it deems necessary, regarding the security of our Service and your account and password information. Under no circumstances shall any of VitalFlo or its officers, directors, employees, consultants, subsidiaries, agents, and affiliated individuals or entities, including the Providers and/or any professional corporation that employs or contracts with any Providers (collectively, the “VitalFlo Entities”) be held liable to you for any liabilities or damages resulting from your failure to comply with these Terms, including any failure by you to keep your account and password or other information secure.
- Prohibited Conduct. BY USING THE SERVICE YOU AGREE NOT TO:
- use the Service to compete with VitalFlo’s business;
- use the Service for any illegal purpose or in violation of any applicable law or regulation, including, without limitation, any local, state, national, or international law;
- violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third-party intellectual property or privacy right;
- post, upload, or distribute any User Content as defined in Section 8 (User Content) or other content that is unlawful, defamatory, libelous, inaccurate, or that a reasonable person could deem to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate;
- interfere with security-related features of the Service, including by: (i) disabling or circumventing features that prevent or limit use or copying of any content; or (ii) reverse engineering or otherwise attempting to discover the source code of any portion of the Service except to the extent that the activity is expressly permitted by applicable law;
- interfere with the operation of the Service or any user’s enjoyment of the Service, including by: (i) uploading or otherwise any disseminating virus, adware, spyware, worm, or other malicious code; (ii) making any unsolicited offer or advertisement to another user of the Service; (iii) attempting to collect personal information about another user or third party without consent; (iv) interfering with or disrupting any network, equipment, or server connected to or used to provide the Service; (v) violating any regulation, policy, or procedure of any network, equipment, or server; or (vi) manipulating or otherwise displaying the Service by using framing, mirroring or similar navigational technology;
- perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation, accessing any other Service account without permission, or falsifying your age or date of birth or any other information provided or submitted to the Service;
- sell or otherwise transfer the access granted under these Terms or any VitalFlo Materials; or
- attempt to do any of the acts described in this Section 1.5, or assist or permit any person in engaging in any of the acts described in this Section 1.5
- Mobile Software. You must be at least (18) years of age to use the Site. By accepting these Terms, you represent and warrant to us that: (a) you are at least (18) years of age; (b) you have not previously been suspended or removed from the Site; (c) your use of the Site is in compliance with all applicable laws and regulations; and (d) all information you provide or submit through the Site will be truthful, accurate and complete. If you are using the Site on behalf of an entity, organization, or company, you represent and warrant that you have the authority to bind that organization to these Terms and you agree to be bound by these Terms on behalf of that organization.
- Mobile Software and Equipment. We may make available software to access the Service via a mobile device (“Mobile Software”). To use the Mobile Software you must have a mobile device that is compatible with the Mobile Software. VitalFlo does not provide you with equipment to use the App and does not warrant that the Mobile Software will be compatible with your mobile device. You may use mobile data in connection with the Mobile Software and may incur additional charges from your wireless provider for these services. You are responsible for complying with any third-party terms of service and paying all fees charged by third parties to access and use the App, including, without limitation, the payment of all applicable fees associated with any Carrier service plan you use in connection with your use of the Service (such as data, SMS, MMS, roaming, and other applicable fees charged by the Carrier). You agree that you are solely responsible for any such charges. VitalFlo hereby grants you a non-exclusive, non-transferable, revocable license to use a compiled code copy of the Mobile Software on mobile devices owned or leased solely by you, and in accordance with the features made available to you. You may not: (a) modify, disassemble, decompile or reverse engineer the Mobile Software, except to the extent that such restriction is expressly prohibited by law; (b) rent, lease, loan, resell, sublicense, distribute or otherwise transfer the Mobile Software to any third party or use the Mobile Software to provide time sharing or similar services for any third party; (c) make any copies of the Mobile Software; (d) remove, circumvent, disable, damage or otherwise interfere with security-related features of the Mobile Software, features that prevent or restrict use or copying of any content accessible through the Mobile Software, or features that enforce limitations on use of the Mobile Software; or (e) delete the copyright and other proprietary rights notices on the Mobile Software. You acknowledge that VitalFlo may from time to time issue upgraded versions of the Mobile Software, and may automatically electronically upgrade the version of the Mobile Software that you are using on your mobile device. You consent to such automatic upgrading on your mobile device, and agree that the terms and conditions of these Terms will apply to all such upgrades. Any third-party code that may be incorporated in the Mobile Software is covered by the applicable open source or third-party license, if any, authorizing use of such code. The foregoing license grant is not a sale of the Mobile Software or any copy thereof, and VitalFlo or its third-party partners or suppliers retain all right, title, and interest in the Mobile Software (and any copy thereof). Any attempt by you to transfer any of the rights, duties or obligations hereunder, except as expressly provided for in these Terms, is void. VitalFlo reserves all rights not expressly granted under these Terms. If the Mobile Software is being acquired on behalf of the United States Government, then the following provision applies. The Mobile Software will be deemed to be “commercial computer software” and “commercial computer software documentation,” respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. Any use, reproduction, release, performance, display or disclosure of the Service and any accompanying documentation by the U.S. Government will be governed solely by these Terms and is prohibited except to the extent expressly permitted by these Terms. The Mobile Software originates in the United States, and is subject to United States export laws and regulations. The Mobile Software may not be exported or re-exported to certain countries or those persons or entities prohibited from receiving exports from the United States. In addition, the Mobile Software may be subject to the import and export laws of other countries. You agree to comply with all United States and foreign laws related to use of the Mobile Software and the Service.
- Enrollment in VitalFlo’s SMS or Text Messaging Services. We offer you the chance to enroll to receive SMS/text messages from VitalFlo regarding account-related news and alerts and/or offers for VitalFlo products and services. By enrolling in VitalFlo’s SMS/text messaging service, you agree to receive text messages from VitalFlo to your mobile phone number provided, and you certify that your mobile number provided is true and accurate and that you are authorized to enroll the designated mobile number to receive such text messages. You acknowledge and agree that the text messages may be sent using an automatic telephone dialing system and that standard message and data rates apply. Consent is not required as a condition of purchase. To unsubscribe from text messages at any time, reply to the message you received with the text STOP. You consent that following such a request to unsubscribe, you may receive one final text message from VitalFlo confirming your request. For help under this section, contact us at email@example.com.
- Mobile Software provided from App Store by Apple. The following applies to any Mobile Software you acquire from the App Store (“App Store-Sourced Software”): You acknowledge and agree that these Terms are solely between you and VitalFlo, not Apple, and that Apple has no responsibility for the App Store-Sourced Software or content thereof. Your use of the App Store-Sourced Software must comply with the App Store Terms of Service. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store-Sourced Software. In the event of any failure of the App Store-Sourced Software to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store-Sourced Software to you; to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store-Sourced Software, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be solely governed by these Terms and any law applicable to VitalFlo as provider of the software. You acknowledge that Apple is not responsible for addressing any claims of you or any third party relating to the App Store-Sourced Software or your possession and/or use of the App Store-Sourced Software, including, but not limited to: (a) product liability claims; (b) any claim that the App Store-Sourced Software fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation; and all such claims are governed solely by these Terms and any law applicable to VitalFlo as provider of the software. You acknowledge that, in the event of any third-party claim that the App Store-Sourced Software or your possession and use of that App Store-Sourced Software infringes that third-party’s intellectual property rights, VitalFlo, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms. You and VitalFlo acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries to these Terms as relates to your license of the App Store-Sourced Software, and that, upon your acceptance of the terms and conditions of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms as they relate to your license of the App Store-Sourced Software against you as a third-party beneficiary thereof.
- Mobile Software provided from Google Play Store. The following applies to any Mobile Software you acquire from the Google Play Store (“Google-Sourced Software”): (a) you acknowledge that these Terms are between you and VitalFlo only, and not with Google, Inc. (“Google”); (b) your use of Google-Sourced Software must comply with Google’s then-current Google Play Store Terms of Service; (c) Google is only a provider of the Google Play Store where you obtained the Google-Sourced Software; (d) VitalFlo, and not Google, is solely responsible for its Google-Sourced Software; (e) Google has no obligation or liability to you with respect to Google-Sourced Software or these Terms; and (f) you acknowledge and agree that Google is a third-party beneficiary to these Terms as it relates to VitalFlo’s Google-Sourced Software.
- Consent to Use of Telehealth Services. As part of the Service, VitalFlo may enable you to obtain certain telehealth consultations and treatment in connection with such program by facilitating the connection between you and one or more licensed healthcare providers (each, a “Provider”). Telehealth involves the delivery of healthcare services using electronic communications, information technology or other means between a Provider and a patient who are not in the same physical location. While the provision of healthcare services using telehealth may offer certain potential benefits, there are also potential risks associated with the use of telehealth. In order to utilize all features of the Service, you will be required to review and agree to the consent to use of telehealth services. The consent to use of telehealth services is hereby incorporated into these Terms by reference and constitutes a part of these Terms. The services you receive from Providers are not intended to replace a primary care physician relationship or be your permanent medical home. You may form an ongoing treatment relationship with some Providers. However, your initial visit with a Provider will begin as a consultation and will not necessarily give rise to an ongoing treatment relationship. You should seek emergency help or follow-up care when recommended by a Provider or when otherwise needed, and continue to consult with your primary care physician and other healthcare professionals as recommended. We may make arrangements for follow-up care either through VitalFlo affiliated Providers or other healthcare providers. Among the benefits of our Services are improved access to healthcare professionals and convenience. However, as with any health service, there are potential risks associated with the use of telehealth. These risks include, but may not be limited to:
- In rare cases, information transmitted may not be sufficient (e.g., poor resolution of images) to allow for appropriate healthcare decision making by the Provider;
- Delays in evaluation or treatment could occur due to failures of the electronic equipment. If this happens, you may be contacted by phone or other means of communication;
- In rare cases, a lack of access to all of your health records may result in adverse drug interactions, hypoglycemic events, allergic reactions or other judgment errors;
- Although the electronic systems we use will incorporate network and software security protocols to protect the privacy and security of health information, in rare instances, security protocols could fail, causing a breach of privacy of personal health information.
By accepting these Terms, you acknowledge that you understand and agree with the following:
- You understand that you may expect the anticipated benefits from the use of the VitalFlo Services in your care, but that no results can be guaranteed or assured.
- You understand that the laws that protect the privacy and security of health information apply to telehealth, and you have received VitalFlo’s Notice of Privacy Practices, which describes these protections in more detail.
- Your Provider may determine that the Services are not appropriate for some or all of your treatment needs, and accordingly may elect not to provide telehealth services to you through the Service.
- Pricing, Charges, and Payment Terms.
- Individual Pricing and Payment Terms. If you are not accessing or using the Service under your health plan or employer provider, then you are accessing or using the Service on an individual basis. If you elect to use paid aspects of the Service, you agree to the pricing and payment terms as set forth in your account or made available to you online. VitalFlo may add new services for additional fees and charges and to add or amend fees and charges for existing services. Any change to our pricing or payment terms shall become effective in the billing cycle following notice of such change to you as provided in these Terms.
- Optional Continued Coverage. If your health plan or employer provider has arranged with VitalFlo to pay the fees or charges, or any portion of the fees or charges, then such fees or charges are Covered Fees and will be subject to a separate agreement between VitalFlo and the health plan or employer provider. In the event that you are no longer eligible for such coverage under a health plan or from an employer provider (e.g., if the health plan is cancelled, the employer no longer offers such benefit or you are no longer employed by the employer provider) then you will have the option to (i) assume any and all unpaid fees and continue use of the Service or (ii) terminate the Services. Please check with your health plan or employer provider to determine the level of coverage and/or Covered Fees that your health plan or employer provider will provide, if any, and if any additional fees apply to you. If you do not have insurance coverage for the Service, or if payment or coverage is denied by your health plan or employer provider, and you have used the Service, you acknowledge and agree that you will be personally responsible for all fees or charges. VitalFlo offers no guarantee that your health plan or employer provider will be responsible for such fees or charges.
- If you pay for any part of the Service by credit card, you hereby authorize VitalFlo, or a third party appointed by VitalFlo, to bill and charge the credit card indicated in your registration information for any fees and other amounts that may become due and payable.
- Automatic Renewal. IF YOU HAVE SELECTED TO PAY FOR THE SERVICE ON A MONTHLY BASIS, UNLESS YOU NOTIFY US IN WRITING BY EMAILING firstname.lastname@example.org BEFORE A CHARGE THAT YOU WANT TO CANCEL OR THAT DO NOT WANT THE SERVICE TO AUTO RENEW, YOU UNDERSTAND AND AGREE THAT YOUR MONTHLY CHARGES, AT THE FEES SET FORTH IN YOUR ACCOUNT OR MADE AVAILABLE TO YOU ONLINE, WILL AUTOMATICALLY RENEW ON A CONTINUOUS MONTHLY BASIS AND YOU AUTHORIZE US (WITHOUT NOTICE TO YOU, UNLESS REQUIRED BY APPLICABLE LAW) TO CHARGE YOU THE MONTHLY FEE AND ANY TAXES, USING ANY ELIGIBLE PAYMENT METHOD WE HAVE ON RECORD FOR YOU.
- Refunds. You may cancel your request for Service or account within fourteen (14) calendar days after registering for the Service and you may receive a refund for the Services for which you paid (the “Refund Period”). All refunds will be sent by check and will be processed within four to six (4 – 6) weeks of your request. To request a refund within the Refund Period, you must email email@example.com and include a mailing address where a refund check can be mailed. If you received any medical equipment (as described below), you will be refunded the amount you paid for Service, less three hundred U.S. Dollars (USD $300) for such equipment. You may cancel your account as set forth in these Terms, however there are no refunds for cancellation besides those described herein under the Refund Period. In the event that we suspend or terminate your account or these Terms, you understand and agree that you shall receive no refund.
- Access and Connectivity. You are responsible for providing and maintaining, at your own risk, option and expense, appropriate software and hardware capabilities (consistent with any technical, quality or other requirements described in the Service) to enable use of the Service. VitalFlo reserves the right to change the access configuration, including any software, hardware or other requirements of the Service at any time without prior notice.
- Medical Equipment. The VitalFlo Entities may provide users certain pulmonary function test supplies, including peak flow meters, heart rate monitors, and pulse oximetry monitors. The timing, fees, quantity and terms of all such supplies shall be at the VitalFlo Entities sole discretion. Refusal by the VitalFlo Entities to provide additional pulmonary function test supplies shall not relieve users of their obligation to pay the fees specified by the Service. By accepting these Terms, you agree that all items provided to you by the VitalFlo Entities are for your personal use only and not for resale. If you dispense products to others, including for resale, you acknowledge and agree that you shall be breaching these Terms and that VitalFlo is likely to suffer irreparable harm as a result of its contracts with suppliers under which VitalFlo is obligated to make reasonable efforts to prevent resale. Further, by accepting these Terms, you acknowledge that any pulmonary function test supplies provided are not being provided pursuant to schemes eligible for reimbursement and you hereby agree not to seek reimbursement for any supplies provided to you by the VitalFlo Entities from any patient or third-party payer, including Medicaid, Medicare, commercial payers, any state or federal healthcare programs.
- User Content.
- User Content Generally. Certain features of the Service may permit users to upload content to the Service (including without limitation the patient portal), including messages, reviews, photos, video, images, folders, data, text, and other types of works (“User Content”) and to publish User Content on the Service.
- Limited License Grant to VitalFlo. By posting or publishing User Content, you hereby grant VitalFlo a worldwide, non-exclusive, royalty-free right and license (with the right to sublicense) to use, host, store, transfer, display, perform, reproduce, modify for the purpose of formatting for display, and distribute your User Content, in whole or in part, in any media formats and through any media channels (now known or hereafter developed). VitalFlo’s use of your User Content will be without any compensation paid to you.
- Limited License Grant to Other Users. By posting and sharing User Content with another user of the Service, you grant that user a non-exclusive license to access and use that User Content as permitted by these Terms and the functionality of the Service.
- User Content Representations and Warranties. You are solely responsible for your User
Content and the consequences of posting or publishing User Content. By
posting or publishing User Content, you affirm, represent, and warrant
- you are the creator and owner of, or have the necessary licenses, rights, consents, and permissions, to use and to authorize VitalFlo and users of the Service to use and distribute your User Content as necessary to exercise the licenses granted by you in this Section 8 and in the manner contemplated by VitalFlo, the Service, and these Terms; and
- your User Content, and the use of your User Content as contemplated by these Terms, does not and will not: (i) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (iii) cause VitalFlo to violate any law or regulation.
- User Content Disclaimer. We are under no obligation to edit or control User Content that you or other users post or publish, and will not be in any way responsible or liable for User Content. VitalFlo may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment violates these Terms or is otherwise objectionable. You understand that when using the Service you will be exposed to User Content from a variety of sources and acknowledge that User Content may be inaccurate, offensive, indecent, or objectionable. You agree to waive, and do waive, any legal or equitable right or remedy you have or may have against VitalFlo with respect to User Content. We expressly disclaim any and all liability in connection with User Content. If notified by a user or content owner that User Content allegedly does not conform to these Terms, we may investigate the allegation and determine in our sole discretion whether to remove the User Content, which we reserve the right to do at any time and without notice. For clarity, VitalFlo does not permit copyright-infringing activities on the Service.
- Digital Millennium Copyright Act.
- DMCA Notification. We comply with the provisions of the Digital Millennium Copyright Act applicable to Internet service providers (17 U.S.C. §512, as amended). If you have an intellectual property rights-related complaint about material posted on the Service, you may contact our Designated Agent at the following address:
16 W Martin St., Ste. 910
Raleigh, NC 27601
notice alleging that materials hosted by or distributed through the Service
infringe intellectual property rights must include the following information:
- an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;
- a description of the copyright-protected work or other intellectual property right that you claim has been infringed;
- a description of the material that you claim is infringing and where it is located on the Service;
- your address, telephone number, and email address;
- a statement by you that you have a good-faith belief that the use of those materials on the Service is not authorized by the copyright owner, its agent, or the law; and
- a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
- Repeat Infringers. VitalFlo will promptly terminate without notice the accounts of users that are determined by VitalFlo to be “repeat infringers.” A repeat infringer is a user who has been notified of infringing activity or has had User Content removed from the Service at least twice.
- Termination of Use; Discontinuation and Modification of the Service. If you violate any provision of these Terms, your permission from us to use the Service will terminate automatically. In addition, VitalFlo may in its sole discretion terminate your user account on the Service or suspend or terminate your access to the Service at any time, with or without notice. We also reserve the right to modify or discontinue the Service at any time (including by limiting or discontinuing certain features of the Service) without notice to you. We will have no liability whatsoever on account of any change to the Service or any suspension or termination of your access to or use of the Service. You may terminate your account at any time by contacting customer service at firstname.lastname@example.org. If you terminate your account, you remain obligated to pay all outstanding fees, if any, relating to your use of the Service incurred prior to termination.
- Additional Terms. Your use of the Service is subject to all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to from the Service (the “Additional Terms”), such as end-user license agreements for any downloadable software applications, or rules that are applicable to a particular feature or content on the Service. All Additional Terms are incorporated by this reference into, and made a part of, these Terms.
- Modification of these Terms. We reserve the right, at our sole discretion, to change or update these Terms from time to time. Please check these Terms periodically for changes or updates. Immaterial modifications are effective upon publication. If a change or update to these Terms materially modifies your rights or obligations, we will update the “last updated” date at the top of this page and make reasonable efforts to notify you that material changes have been made to the Terms. Your continued use of the Service after any such change or update constitutes your acceptance of the new Terms. If you do not agree to any of these Terms or any future Terms, do not use or access (or continue to access) the Service.
- Ownership; Proprietary Rights. The Service is owned and operated by VitalFlo. The visual interfaces, graphics, names, logos, marks, content (other than User Content), design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Service (“VitalFlo Materials”) provided by VitalFlo are protected by intellectual property and other laws. All VitalFlo Materials contained in the Service and all trademarks, service marks, copyrights and any and all other intellectual property rights and proprietary material related thereto are, and will remain, the exclusive property of VitalFlo or our third-party licensors. Except as expressly authorized by VitalFlo, you may not make use of the VitalFlo Materials. VitalFlo reserves all rights to the VitalFlo Materials not granted expressly in these Terms.
- No Medical Advice. We act as a technology platform to connect you with Providers who may be available to provide you with certain non-emergency medical care, however VitalFlo is not itself a healthcare provider, and the Providers are solely responsible for providing you with any medical care and treatment you receive via the Service. We do not control or interfere with the practice of medicine by Providers, each of whom is responsible for the professional medical services he or she provides. By accepting these Terms and by using the Service, you are entering into a doctor-patient or other health care provider-patient relationship solely with one or more Provider(s) and not with VitalFlo. The information provided by VitalFlo as part of the VitalFlo Materials and through the Service is for general informational purposes only. None of the VitalFlo Materials should be considered medical advice or an endorsement, representation or warranty that any particular medication or treatment is safe, appropriate, or effective for you.
- Indemnity. You agree that you will be responsible for your use of the Service, and you agree to defend and indemnify the VitalFlo Entities from and against every claim, liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or in any way connected with: (a) your access to, use of, or alleged use of, the Service; (b) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms or any applicable law or regulation; (c) your violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (d) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of that claim.
- Disclaimers; No Warranties.
WHILE THE SERVICE PROVIDES ACCESS TO CERTAIN PROVIDERS FOR NON-EMERGENCY MEDICAL CARE, VITALFLO IS NOT A HEALTHCARE PROVIDER AND CANNOT AND DOES NOT DIAGNOSE OR TREAT YOUR HEALTH CONDITIONS. VITALFLO PROVIDES NO ENDORSEMENT, REPRESENTATION OR WARRANTY THAT ANY PARTICULAR MEDICATION OR TREATMENT USED BY THE PROVIDERS IS OR WILL BE SAFE, EFFECTIVE OR APPROPRIATE FOR YOU. DO NOT USE THE SERVICES FOR MEDICAL EMERGENCIES. IF YOU THINK YOU MAY HAVE A MEDICAL EMERGENCY, CALL 911 (OR THE EQUIVALENT CONTACT NUMBER FOR EMERGENCY SERVICES IN YOUR REGION) IMMEDIATELY.
THE SERVICE AND ALL VITALFLO MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS, WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED. TO THE EXTENT ALLOWED BY LAW, THE VITALFLO ENTITIES DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE AND ALL VITALFLO MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. THE VITALFLO ENTITIES DO NOT WARRANT THAT THE SERVICE OR ANY PORTION OF THE SERVICE, OR ANY VITALFLO MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND DO NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR ANY VITALFLO MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF THE VITALFLO ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. YOU ASSUME ALL RISK FOR ANY DAMAGE THAT MAY RESULT FROM YOUR ACCESS TO, USE OR MISUSE OF, OR INABILITY TO USE THE SERVICE, YOUR DEALING WITH ANY OTHER SERVICE USER, AND ANY VITALFLO MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE. YOU UNDERSTAND AND AGREE THAT YOU USE THE SERVICE, AND ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN VITALFLO MATERIALS OR CONTENT THROUGH THE SERVICE AND ANY ASSOCIATED SITES OR SERVICES, AT YOUR OWN DISCRETION AND RISK, AND THAT YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE), OR THE LOSS OF DATA THAT RESULTS FROM THE USE OF THE SERVICE OR THE DOWNLOAD OR USE OF THAT MATERIAL OR CONTENT.
SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION. TO THE EXTENT THAT WE MAY NOT DISCLAIM ANY IMPLIED WARRANTY, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED BY LAW.
- Limitation of Liability.
IN NO EVENT WILL THE VITALFLO ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY VITALFLO MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY VITALFLO ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
YOU AGREE THAT THE AGGREGATE LIABILITY OF THE VITALFLO ENTITIES TO YOU, FOR ALL CLAIMS ARISING OUT OF, OR RELATING TO, THE USE OF OR ANY INABILITY TO USE, ANY PORTION OF THE SERVICE OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (A) THE AMOUNT YOU HAVE PAID TO VITALFLO FOR ACCESS TO AND USE OF THE SERVICE IN THE TWELVE (12) MONTHS PRIOR TO THE CLAIM; OR (B) ONE THOUSAND U.S. DOLLARS (USD $1,000.00).
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. TO THE EXTENT THAT WE MAY NOT LIMIT OUR LIABILITIES, THE EXTENT OF SUCH LIABILITIES WILL BE THE MINIMUM PERMITTED BY LAW.
EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 19 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
- Disagreements between Users.
You alone are responsible for your communications, interactions, agreements, representations, promises or any other involvement with other users of the Service (“Users”). VitalFlo reserves the right, but has no obligation, to monitor disagreements between you and other Users. If you have a dispute with one or more Users, you irrevocably and forever release the VitalFlo Entities from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes.
IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”
- Governing Law. These Terms are governed by the laws of the State of California without regard to conflict of law principles. If a lawsuit or court proceeding is permitted under these Terms, you and VitalFlo agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within San Francisco, California for the purpose of litigating any dispute. We operate the Service from our offices in California, and we make no representation that VitalFlo Materials included in the Service are appropriate or available for use in other locations.
- General. These Terms, the consent to use of telehealth and any other agreements expressly incorporated by reference into these Terms, are the entire and exclusive understanding and agreement between you and VitalFlo regarding your use of the Service. You may not assign or transfer these Terms or your rights under these Terms, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign these Terms at any time without notice or consent. The failure to require performance of any provision will not affect our right to require performance at any other time after that, nor will a waiver by us of any breach or default of these Terms, or any provision of these Terms, be a waiver of any subsequent breach or default or a waiver of the provision itself. Use of section headers in these Terms is for convenience only and will not have any impact on the interpretation of any provision. If any part of these Terms is held to be invalid or unenforceable, the unenforceable part will be given effect to the greatest extent possible, and the remaining parts will remain in full force and effect. Upon termination of these Terms, any provision that by its nature or express terms should survive, will survive.
- Dispute Resolution and Arbitration.
- Generally. In the interest of resolving disputes between you and any VitalFlo Entity in the most expedient and cost effective manner, you and each VitalFlo Entity agree that every dispute arising in connection with these Terms will be resolved by binding arbitration. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Our agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND EACH VITALFLO ENTITY ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
- Exceptions. Despite the provisions of Section 23.1, we both agree that nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either of us to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law; or (d) to file suit in a court of law to address an intellectual property infringement claim.
- Arbitrator. Any arbitration between you and any VitalFlo Entity will be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting VitalFlo.
- Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail or Federal Express (signature required), or if we do not have a physical address on file for you, by electronic mail (“Notice”). The address for Notice to any VitalFlo Entity is: VitalFlo Inc. 16 W Martin St., Ste. 910, Raleigh, NC 27601. The Notice must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). We agree to use good faith efforts to resolve the claim directly, but if we do not reach an agreement to do so within 30 days after the Notice is received, you or any VitalFlo Entity may commence an arbitration proceeding. The parties shall have the ability to take discovery on and exchange relevant information, on a confidential basis, about the dispute. During the arbitration, the amount of any settlement offer made by you or any VitalFlo Entity must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If our dispute is finally resolved through arbitration in your favor, the applicable VitalFlo Entity will pay you the highest of the following: (i) the amount awarded by the arbitrator, if any; (ii) the last written settlement amount offered by the applicable VitalFlo Entity in settlement of the dispute prior to the arbitrator’s award; or (iii) one thousand U.S. Dollars (USD $1,000). Except as required to comply with law or other requirements, the arbitration proceedings, filings and outcome shall be confidential.
- Fees. If you commence arbitration in accordance with these Terms, VitalFlo will reimburse you for your payment of the filing fee, unless your claim is for more than ten thousand U.S. Dollars (USD $10,000), in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in Raleigh, North Carolina, but if the claim is for ten thousand U.S. Dollars (USD $10,000) or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a nonappearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse VitalFlo for all monies previously disbursed by any VitalFlo Entity that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
- No Class Actions. YOU AND EACH VITALFLO ENTITY AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and each applicable VitalFlo Entity agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
- Modifications. If VitalFlo makes any future change to this arbitration provision (other than a change to VitalFlo’s address for Notice), you may reject the change by sending us written notice within 30 days of the change to VitalFlo’s address for Notice, in which case your account with VitalFlo will be immediately terminated and this arbitration provision, as in effect immediately prior to the amendments you reject will survive.
- Enforceability. If Section 23.6 is found to be unenforceable or if the entirety of this Section 23 is found to be unenforceable, then the entirety of this Section 23 will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 21 will govern any action arising out of or related to these Terms.
- Contact Information. The Service is offered by VitalFl Inc., located at 16 W Martin St., Ste. 910, Raleigh, NC 27601. You may contact us by sending correspondence to that address or by emailing us at email@example.com.