These Terms of Use set forth the terms and conditions by which VitalFlo, Inc., a North Carolina corporation (“VitalFlo”, “us”, “our”, and “we”) makes available: (i) use of our website www.vitalflohealth.com and its associated webpages and subdomains, if any (collectively, the “Site”), (ii) download, access, or use of our mobile applications, including VitalFlo Mobile (each, an “App”), and/or (iii) any services, software, applications, plug-ins, components, functionality, or programs provided or offered now or in the future via the Site or Apps (collectively, the “Service” or “Services”). These Terms of Use apply to you, a user of the Service, and constitute a binding legal agreement between you, as an individual, or if you are using the Service on behalf of an entity, the legal entity that you represent (“you”) and us.
THESE TERMS OF USE (THESE “TERMS”) ALONG WITH OUR PRIVACY POLICY SET FORTH THE LEGALLY BINDING TERMS AND CONDITIONS THAT GOVERN YOUR USE OF THE SERVICE. BY DOWNLOADING THE APP OR REGISTERING FOR, ACCESSING OR USING THE APP OR SERVICE, YOU AGREE THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THESE TERMS OF USE, AS AMENDED FROM TIME TO TIME. IF YOU DO NOT AGREE TO THESE TERMS OF USE AND/OR THE VITALFLO PRIVACY POLICY, DO NOT ACCESS OR USE THE SERVICE. YOU FURTHER REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THESE TERMS. YOU MUST BE AT LEAST 18 YEARS OLD TO REGISTER FOR THE SERVICE. IF YOU ARE NOT AT LEAST 18 YEARS OLD, YOUR PARENT OR GUARDIAN MUST REGISTER AND AGREE TO THESE TERMS ON YOUR BEHALF AND SHALL BE RESPONSIBLE FOR YOUR USE UNDER THESE TERMS. IF YOU DO NOT AGREE WITH ALL OF THE PROVISIONS OF THESE TERMS, DO NOT ACCESS AND/OR USE THE SERVICE. VitalFlo may change these Terms of Use at any time by posting the amended Terms of Use on the App and/or and providing a notice to you through the Service. If you do not agree to the Terms of Use as amended, you must stop using the Service and cancel your account. Your continued use of the Service after the date the amended Terms of Use is effective will constitute your acceptance of the amended Terms of Use.
THESE TERMS REQUIRE THE USE OF ARBITRATION (SECTION 16) ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMIT THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
1. Not Medical Advice
You understand and agree that VitalFlo is not a medical professional or healthcare provider and nothing provided through the Service should be construed as medical advice and no doctor-patient relationship exists, or is created, between you and VitalFlo. Any content or data accessed or generated through use of the Service is for informational purposes only and is not a substitute for the professional judgment of your health care providers. The Service should be used in concert with your physician or healthcare provider. You agree that you have consulted with your own healthcare provider regarding use of the Service. Always seek the advice of your physician or other healthcare provider before following or changing any medication, treatment or regimen. Only your physician can provide you with advice on what is safe, appropriate and effective for you. If you have any questions regarding your condition, treatment, or healthcare or any alerts, warnings or information provided through use of the Service, please contact your physician or other healthcare provider. Do not disregard professional medical advice or delay in seeking it because of content on the Service. Use of the Service is solely at your own risk and VitalFlo is not responsible or liable for any loss or damage of any kind that may result from your use of the Service or reliance on any content made available to you through the Service. Certain information provided through the Service is based on publicly available data, such as environmental data and allergens, and we make no claims or warranties as to the accuracy, completeness, relevance or currentness of such data.
2. Definitions
(a) Authorized Individual-Representative. An Authorized Individual-Representative is an individual who has authority to create and manage a VitalFlo account on behalf of a Dependent and may include a parent, guardian, or other legal representative.
(b) Authorized Provider. A healthcare provider, healthcare practice, or hospital that has prescribed a Device and/or recommended use of the Service and/or that you authorize to provide and receive information about you and your personal medical needs and events, which may include personal health information, through the Application and Service.
(c) Dependent. A Dependent is a minor child or other individual for whom an Authorized Individual-Representative is the legal representative.
(d) Device. A third party device that collects certain personal or wellness information or environmental information and which works in conjunction with the third party intermediary software application (“Intermediary App”) or directly with the Service, including the third party spirometer prescribed to you by your Authorized Provider.
(e) Device Data. Information collected and transmitted to the Service through use of the Device and Intermediary App, including information regarding your lung health including air intake and exhalation and speed of breath and which may include local environmental conditions or information.
(f) Personal Information. personally-identifying information, including your name, mobile number, address and includes any User Health Data.
(g) User Health Data. Information regarding our lung health, asthma, symptoms, responses to follow-up questions through the Service and other personal information relating to your health which is collected and transmitted to the Service including Device Data.
3. Your Account; Authorized Individuals
You must provide accurate and complete registration information when you register to use the Service or if your account has been created by your Authorized Provider, you may need to provide an access code or other personal information to access such account. You represent and warrant that: (a) all required information you submit is truthful and accurate; (b) you will maintain the accuracy of such information; and (c) if certain medical records or other personal information is associated with an account, that you have the legal right to access and view the same. You may cease use of the Service at any time, for any reason, by following the instructions on the Service. VitalFlo may suspend or terminate your account in accordance with Section 11. If your account was created through a relationship between VitalFlo and your Authorized Provider, you understand that we will not be obligated to maintain your account or your use of the Service, including information associated with your account upon termination of the relationship between VitalFlo and the Authorized Provider.
You are responsible for the security of your account log-on information and passwords and for any use of your account using such log-on information or passwords. You agree to notify us promptly of any unauthorized access to or use of your account or loss or unauthorized use of your Device. We cannot and will not be responsible for any loss or damage caused by your failure to comply with these requirements. VitalFlo reserves the right in its sole discretion to determine who may qualify for an account and reserves the right to reject or revoke any account at any time without liability.
VitalFlo may enable you to create accounts for minors or other members of your family over whom you have legal authority. You may only do so if you are the Authorized Individual-Representative, and by doing so, you certify that you have such authority. You understand and agree that the Service will transmit User Health Data and Device Data to your Authorized Providers and may permit your Authorized Providers to communicate with you or your Authorized Individual Representatives about your health status through the Service.
4. Use of the Service
The Service is provided to you for your personal, noncommercial use. The Service is intended to help you manage your asthma and respiratory health. You understand and agree that the Service is intended only as a tool for use in conjunction with advice and recommendations from your healthcare provider. You may use the Service to provide information to your Authorized Provider regarding your asthma, asthma attacks and other information relating to your respiratory health and/or surrounding conditions. The Service may process, analyze and use your User Health Data to assess health, environmental and other situational conditions and to provide you or your Authorized Provider with information, notifications or alerts regarding reported symptoms or health, environmental data or your use of a Device, including compliance metrics, asthma or lung health. VitalFlo may also utilize the Service to send you notifications relating to your use of the Service, including reminders and customer service notifications, and notifications relating to any potential data breach and you hereby agree to receipt of such VitalFlo messages. You agree that we may contact you via email, notifications in the Service, telephone or cell phone or SMS/text messages in connection with or as part of the Service.
5. User Information
You may provide certain Personal Information directly including during the registration process and through use of the Service. When you provide Personal Information through the Service, you provide VitalFlo authorization to use and distribute it in connection with the Service, including forwarding such information and allowing access to such information to your Authorized Providers. VitalFlo will use Personal Information only as permitted by the VitalFlo Privacy Policy, these Terms of Use, and applicable law, or as otherwise expressly consented to by You. VitalFlo is committed to protecting your personal information and employs a variety of security technologies and procedures to help protect your information from unauthorized access, use, and disclosure. See below on disclosures regarding our compliance with applicable Health Privacy Laws.
You shall retain ownership of all information and data you provide to VitalFlo through the Service, including without limitation, any Personal Information and other text, graphics, audio, video, photographs and other materials you may store, post, distribute or provide through the Service (“User Content”). You are solely responsible for your User Content. You hereby grant to VitalFlo the right to use and access the User Content as necessary or appropriate for the provision of the Service, including the reproduction, display, modification and distribution of the User Content through the Service.
6. Providers.
You are being granted use of the Service in connection with your treatment by an Authorized Provider. VitalFlo has executed a separate written agreement for use of the Service with the Authorized Provider. VitalFlo is relying on you to review and assess the qualifications of your Authorized Providers and to make appropriate decisions with respect to your own healthcare, including use of the Service, and Authorized Providers. VitalFlo does not examine the credentials of, perform background checks on, or give its endorsement to any Authorized Provider or the Authorized Provider’s recommendations, advice or treatments.
As part of the Service, your Authorized Providers will be able to receive and provide Personal Information about you, which may include personal health information and questions and information regarding your health status, compliance, health-related events such as asthma attacks and treatment, all through use of the Service and a separate provider portal. You may use the Service to share Personal Information with such Authorized Providers. You understand that any decision to use the Service is entirely voluntary. You understand that if you authorize an Authorized Provider to access your Personal Information in the Service and communicate with you via the Service that Authorized Provider may permit its/his/her staff and other authorized users within its/his/her facility or office to use the Service to access your Personal Information and communicate with you as well. You acknowledge and agree that VitalFlo is not responsible for any Authorized Provider misidentifying itself or any misuse of the data by such Authorized Providers or their authorized personnel. VitalFlo’s sole liability and sole responsibility shall be to discontinue access to your account by any entity or individual which VitalFlo learns misidentified itself/himself/herself or is otherwise misusing your Personal Information or account.
Authorized Providers are “covered entities” as defined in and for the purposes of the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) and the Health Information Technology for Economic and Clinical Health of 2009 (“HITECH”) and the regulations adopted thereunder (collectively and as may be amended “Health Privacy Laws”). If we store, process or transmit individually identifiable health information (as defined under the Health Privacy Laws) on behalf of a covered entity, we may do so as “business associate” and as set forth in a separate business associate or provider agreement. In such cases, VitalFlo is obligated to treat the individually identifiable health information in accordance with the applicable Health Privacy Laws.
Upon termination of your patient relationship with an Authorized Provider, you will no longer have the right to use or access the Service. Further, you may discontinue use of the Service and revoke any Authorized Provider's permission to (a) communicate with you through the Service; (b) access your information or account through the Service; or (c) receive or provide Personal Information to your account through the Service. However, copies of all of your Personal Information previously disclosed to such Authorized Providers may be retained by such persons or entities. VitalFlo cannot, and has no obligation to, remove such information from the Providers.
7. Fees
There are no fees due or payable by you to VitalFlo for your use of the Service. All fees to VitalFlo are paid by the Authorized Providers pursuant to separate written agreements between VitalFlo and the Authorized Provider. You are solely responsible for any fees charged to you by your Authorized Provider for medical care or otherwise. You are also solely responsible for any internet and wireless access required to use the Service and for the cost of all carrier and data access charges imposed by your service provider.
8. VitalFlo Proprietary Rights
VitalFlo and its licensors own all proprietary rights to the App and the Service and all content and technology related thereto, except for your Personal Information or other User Content. VitalFlo grants you a personal, revocable, non-assignable, and non-exclusive license to download the App to your personal mobile device and to use the Service in accordance with these Terms of Use. You may use the App and Service solely for your own personal, noncommercial use. All rights in and to the App and Service other than as expressly granted herein are reserved by VitalFlo. If you provide us with any feedback or suggestions regarding the App or Service (“Feedback”), you assign to VitalFlo any rights in such Feedback and agree that we may use the Feedback in any manner we deem appropriate, without attribution or consideration to you.
9. Restrictions on Use
You shall not license, sublicense, copy, modify, create derivative works of, publicly display or perform, republish, store, transmit or distribute or commercially exploit any of the App, Service or any other proprietary content or material in the Service. You are not permitted to access or use the Service in order to monitor its availability, performance or functionality, for any benchmarking purposes or to build a competitive product or service. Except as expressly set forth herein, you have no right, title or license to any of VitalFlo’s or its licensors' intellectual property. You further agree that you will not: (i) use any device, software or routine that interferes with the proper working of the Service, (ii) attempt to interfere with the proper working of the Service, or (iii) take any action that imposes an unreasonable or disproportionately large load on VitalFlo’s infrastructure.
10. Maintenance and Support
VitalFlo may make available to you from time to time at no additional charge, updates, revisions and new versions of the App, and you agree to accept all such updates, revisions and versions. All updates, modification, revisions and new versions of the App will be subject to these Terms. VitalFlo will provide reasonable telephone or email support for use of the Service and use reasonable efforts to maintain availability of the Service. You understand and agree that VitalFlo’s support will be limited to technical support for use of the App and Service and that VitalFlo will not provide, and will not be responsible for providing, any medical, healthcare or other information or support. You must contact your Authorized Provider or other healthcare provider for any questions relating to your asthma, medical condition or health concerns. You understand and agree that from time to time the App and Service may be unavailable due to maintenance or technical issues.
11. Modification and Termination
VitalFlo may place limits on, modify, suspend or terminate all or any portion of the Service at any time without prior notice. Additionally, notwithstanding the rights you may have to your User Content, VitalFlo may cancel your account and delete all data associated with your account at any time, and without notice, if we deem that you have violated the terms of this agreement or if our relationship with your Authorized Provider terminates for any reason. Your use of the Service may be modified, suspended, or terminated by your Authorized Provider at any time and without notice. You are solely responsible for maintaining your own copies of any User Content maintained within the Service or of any communications received through the Service. VitalFlo assumes no liability for any information removed from the Service. VitalFlo also has the right to maintain and/or destroy all data associated with your account in accordance with its then current document retention and destruction policies. Upon any termination of your access to the Service, you must cease all use of the Service.
You also have the right to terminate your VitalFlo account. You may delete your VitalFlo account at any time by using the functions available through the Service and deleting the App from your mobile device.
12. Reliance on Devices and Intermediary Apps and User Content
The Service is dependent on the information provided by your Authorized Providers, the Devices and Intermediary Apps (if any), and your User Content. You understand and agree that VitalFlo shall not be responsible or liable for any inaccurate results or information or other loss or damage resulting from incomplete, inaccurate, untimely or delayed information provided by your Authorized Providers, the Devices or Intermediary Apps or in your User Content. If you are using a Device, you further understand that the Service is dependent on your use of the Device in compliance with the instructions provided by the Device Manufacturer and your Authorized Provider. VitalFlo does not control and shall not be responsible for any errors, nonconformities or other damages arising from use of the Devices.
13. Exclusion of Warranties
THE APPLICATION AND SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. VITALFLO DOES NOT WARRANT THAT THE APP OR SERVICE WILL OPERATE WITHOUT INTERRUPTION OR BE ERROR-FREE OR THAT THE APP OR SERVICE WILL BE TOTALLY SECURE. WE WILL NOT BE LIABLE FOR ANY LOSS OR THEFT OF PERSONAL INFORMATION OR DATA TO THE EXTENT SUCH INFORMATION OR DATA IS BEING TRANSMITTED OVER THE INTERNET OR OTHER MEDIUM BEYOND THE CONTROL OR JURISDICTION OF VITALFLO. YOU UNDERSTAND THAT WE WILL TRANSMIT, MONITOR, RETRIEVE, STORE, AND USE INFORMATION YOU SUBMIT IN CONNECTION WITH THE USE OF THE SERVICE. WE CANNOT AND DO NOT ASSUME ANY RESPONSIBILITY OR LIABILITY FOR THE TRANSMISSION OF ANY INFORMATION YOU SUBMIT, OR ANY THIRD PARTIES' USE OR MISUSE OF INFORMATION TRANSMITTED USING THE SERVICE.
NEITHER VITALFLO NOR ANY OF OUR LICENSORS OR SERVICE PROVIDERS MAKES ANY EXPRESS WARRANTIES, AND EACH OF THEM DISCLAIMS ALL IMPLIED WARRANTIES WITH RESPECT TO THE SERVICE, INCLUDING IMPLIED WARRANTIES OF ACCURACY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. NEITHER VITALFLO NOR ANY OF OUR LICENSORS OR SERVICE PROVIDERS MAKES ANY WARRANTY THAT THE CONTENT IN THE SERVICE SATISFIES GOVERNMENT REGULATIONS, ADDRESSES THE NEEDS OF YOUR PERSONAL SITUATION OR IS ACCURATE, COMPLETE OR UP-TO-DATE. THE SERVICE IS DEVELOPED FOR USE IN THE UNITED STATES, AND NEITHER COMPANY NOR ANY OF COMPANY' LICENSORS OR SERVICE PROVIDERS MAKES ANY REPRESENTATION CONCERNING THE SERVICEWHEN USED IN ANY OTHER COUNTRY.
14. Limitation of Liability
NEITHER VITALFO NOR ANY OF ITS LICENSORS, VENDORS OR SERVICE PROVIDERS MAY BE HELD LIABLE UNDER THIS AGREEMENT FOR ANY DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH USE OF, OR INABILITY TO USE, THE SERVICE, INCLUDING ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, PERSONAL INJURY, WRONGFUL DEATH, LOST PROFITS OR DAMAGES RESULTING FROM DELAY, INTERRUPTION IN SERVICE, VIRUSES, DELETION OF FILES OR ELECTRONIC COMMUNICATIONS, OR ERRORS, OMISSIONS OR OTHER INACCURACIES IN THE SERVICE, INCLUDING ANY CONTENT AVAILABLE ON THE SERVICE, WHETHER OR NOT THERE IS NEGLIGENCE BY VITALFLO AND WHETHER OR NOT VITALFLO HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH DAMAGES. NEITHER VITALFLO NOR ANY OF ITS VENDORS, LICENSORS OR SERVICE PROVIDERS MAY BE HELD LIABLE UNDER THIS AGREEMENT FOR MORE THAN $100. THE LIMITATIONS IN THIS SECTION APPLY TO YOU ONLY TO THE EXTENT THEY ARE LAWFUL IN YOUR JURISDICTION.
15. Beta, Evaluation or Trial Use
If you have acquired a beta, trial or evaluation subscription for use of the Service (a “Trial Use”), the following terms shall apply in connection with your Trial Use, notwithstanding anything to the contrary herein: (i) your Trial Use will be limited to the Trial period; provided however, that VitalFlo may terminate any Trial Use at any time, with or without prior notice; (ii) your Trial Use may include limitations on the use of the Service; and (iii) your account will automatically terminate at the end of the Trial Use. Trial Use may include beta or other features that may not yet be commercially available and in such case we make no assurances that such features will be included in the commercial version of the Service, or that such features will not be substantially modified. Notwithstanding anything to the contrary herein, VITALFLO DISCLAIMS ALL WARRANTIES, EXPRESS AND IMPLIED, REGARDING THE SERVICE UNDER ANY TRIAL USE AND WE SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT OR OTHER DAMAGES RESUTING FROM YOUR TRIAL USE. YOUR ONLY REMEDY FOR ANY BREACH OF THIS AGREEMENT BY US OR FAILURE OF THE SERVICE WITH RESPECT TO SUCH TRIAL USE IS TO TERMINATE YOUR USE OF THE SERVICE.
16. Governing Law; Arbitration Agreement
These Terms of Use are governed by North Carolina law.
Arbitration. Please read this Arbitration Agreement carefully. It is part of your contract with VitalFlo and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
Applicability of Arbitration Agreement. All claims and disputes (excluding claims for injunctive or other equitable relief as set forth below) in connection with the Terms or the use of any product or service provided by VitalFlo that cannot be resolved informally or in small claims court shall be resolved by binding arbitration on an individual basis under the terms of this Arbitration Agreement. Unless otherwise agreed to, all arbitration proceedings shall be held in English. This Arbitration Agreement applies to you and VitalFlo, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or goods provided under the Terms.
Notice Requirement and Informal Dispute Resolution. Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute (“Notice”) describing the nature and basis of the claim or dispute, and the requested relief. A Notice to VitalFlo should be sent to: 310 S. Harrington St., Raleigh NC 27603. After the Notice is received, you and VitalFlo may attempt to resolve the claim or dispute informally. If you and VitalFlo do not resolve the claim or dispute within 30 days after the Notice is received, either party may begin an arbitration proceeding. The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.
Arbitration Rules. Arbitration shall be initiated through the American Arbitration Association (“AAA”), an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section. If AAA is not available to arbitrate or if the parties agree not to use AAA, the parties shall agree to select an alternative ADR Provider. The rules of the ADR Provider shall govern all aspects of the arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with the Terms. The arbitration shall be conducted by a single, neutral arbitrator. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Each party shall bear its own costs (including attorney’s fees) and disbursements arising out of the arbitration and shall pay an equal share of the fees and costs of the ADR Provider.
Additional Rules for Non-Appearance Based Arbitration. If non-appearance based arbitration is elected, the arbitration shall be conducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise agreed by the parties.
Time Limits. If you or VitalFlo pursue arbitration, the arbitration action must be initiated and/or demanded within the statute of limitations (i.e., the legal deadline for filing a claim) and within any deadline imposed under the AAA Rules for the pertinent claim.
Authority of Arbitrator. If arbitration is initiated, the arbitrator will decide the rights and liabilities, if any, of you and VitalFlo, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages, and to grant any non-monetary remedy or relief available to an individual under applicable law, the AAA Rules, and the Terms. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and VitalFlo.
Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in a court and are subject to very limited review by a court. In the event any litigation should arise between you and VitalFlo in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND THE COMPANY WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.
Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.
Confidentiality. All aspects of the arbitration proceeding, including but not limited to the award of the arbitrator and compliance therewith, shall be strictly confidential. The parties agree to maintain confidentiality unless otherwise required by law. This paragraph shall not prevent a party from submitting to a court of law any information necessary to enforce this Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.
Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Agreement shall continue in full force and effect.
Right to Waive. Any or all of the rights and limitations set forth in this Arbitration Agreement may be waived by the party against whom the claim is asserted. Such waiver shall not waive or affect any other portion of this Arbitration Agreement.
Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Company.
Emergency Equitable Relief. Notwithstanding the foregoing, either party may seek emergency equitable relief before a state or federal court in order to maintain the status quo pending arbitration. A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Arbitration Agreement. Nothing in this agreement limits either party's ability to seek equitable relief.
17. General Legal Terms
For purposes of clarification, these Terms of Use are for end users of the Service. You may not transfer or assign your rights or obligations under these Terms. If VitalFlo and an Authorized Provider have entered into a separate business associate or services agreement, such other agreement shall control the relationship of VitalFlo and such Authorized Provider with respect to its subject matter. VitalFlo shall not be liable for any failure or delay in the Service due to causes beyond its reasonable control, including but not limited to war, sabotage, terrorist activities, riot or other acts of civil disobedience, act of any government affecting the terms or performance hereof, accident, fire, explosion, flood, hurricane, severe weather or other acts of God, failure of telecommunication or internet service provider and denial of service attacks or similar attacks. Failure to enforce any provision will not constitute a waiver of that provision. If any provision is found unenforceable, it and any related provisions will be interpreted to best accomplish the unenforceable provision's essential purpose. The other provisions of these Terms of Use shall remain in full force and effect.
19, Third Party Application Stores. If you are accessing the Service via an Application obtained through the Apple App Store or other third party application market (each an “App Market”), the following shall apply:
(a) Both you and VitalFlo acknowledge that these Terms are concluded between you and VitalFlo only, and not with the App Market, and that the App Market is not responsible for the Application or the content therein;
(b) You will only use the Application in connection with an the App Market device that You own or control and as permitted by the Usage Rules set forth in the App Store Terms of Use;
(c) Both you and VitalFlo acknowledge and agree that the App Market has no obligation whatsoever to furnish any maintenance and support services with respect to the Application;
(d) In the event of any failure of the Application to conform to any applicable warranty, including those implied by law, you may notify the App Market of such failure, and the App Market will refund the purchase price for the Application to you; and to the maximum extent permitted by applicable law, The App Market will have no other warranty obligation whatsoever with respect to the Application, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will, as between the App Market and VitalFlo, be VitalFlo’s sole responsibility;
(e) Both you and VitalFlo acknowledge that., as between VitalFlo and the App Market, VitalFlo, not the App Market, is responsible for addressing your claims or the claims of any third party relating to the Application or your possession and/or use of the Application, including, but not limited to: (i) product liability claims; (ii) any claim that the Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation;
(f) Both you and VitalFlo acknowledge and agree that, in the event of any third party claim that the Application or your possession and use of the Application infringes that third party’s intellectual property rights, VitalFlo, and not the App Market, will be responsible for the investigation, defense, settlement and discharge of any such infringement claim;
(g) You represent and warrant that you are not located in a country subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and that you are not listed on any U.S. Government list of prohibited or restricted parties;
(h) Both you and VitalFlo acknowledge and agree that the App Market and the App Market’s subsidiaries are third party beneficiaries of these Terms, and that upon your acceptance of these Terms of Use, the App Market will have the right (and will be deemed to have accepted the right) to enforce these Terms of Use against you as the third party beneficiary hereof.
(k) All logos, trademarks and service marks of the App Market, whether registered or unregistered, are the property of the applicable App Market and not VitalFlo.
If you have any questions regarding this Agreement or VitalFlo’s Privacy Policy, please contact us at support@vitalflohealth.com.
VitalFlo Terms of Use, Version No. 2
Last modified: May 3rd, 2021
VitalFlo, Inc., a North Carolina corporation (“VFlo”) provides this Privacy Policy to inform you of our policies and procedures regarding the collection, use, and disclosure of personal information we receive from users who (i) access or use the website www.vitalflohealth.com and its associated webpages and subdomains, if any (collectively, the “Site”), (ii) download, access, or use our mobile applications, including VitalFlo Mobile (each, an “App”), and/or (iii) who use the services, software, applications, plug-ins, components, functionality, or programs provided or offered now or in the future by VFlo, including via the Site or Apps (collectively, the “Services”).
Certain of VFlo’s Services, including the VitalFlo Mobile App, are designed to work in conjunction with certain third party products and services, including a third party spirometer (each a “Device”) and intermediary software application (“Intermediary App”). The Device and Intermediary App are made available by our third party partners and such third party partners are solely responsible for the Device and Intermediary App, including their privacy and data policies.
Throughout this Privacy Policy, “you” or “your” shall refer to any person or entity accessing or using the Site or the Services or downloading, accessing, or using any Apps, and, unless otherwise stated, “we,” “our” or “us” will refer collectively to VFlo and VFlo’s subsidiaries, affiliates, directors, officers, members, employees, agents, and contractors. Through our Services, we provide users with tools for monitoring their asthma, asthma symptoms, information relating to a user’s lung health, environmental data that may affect a user’s asthma, asthma symptoms or lung health and for sharing such data and information with their Providers (as defined below). All such activities, the Site, the Apps, your access or use of the Site, and/or your download, access, or use of any Apps, each constitute “Services” for purposes of this Privacy Policy. You are not required to provide any personal information in order to browse the Site and learn more about our company, technology, products and services. However, if you do provide information to us through our Site, this Privacy Statement applies to all such information that you may provide or we may collect from you through the website.
THIS PRIVACY POLICY AND OUR TERMS OF USE SET FORTH THE LEGALLY BINDING TERMS AND CONDITIONS THAT GOVERN YOUR ACCESS OR USE OF THE SERVICES. OUR TERMS OF USE (1) REQUIRE THE USE OF ARBITRATION (SECTION 16) ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND (2) LIMIT THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE. IF YOU DO NOT AGREE TO SUCH TERMS AND CONDITIONS, DO NOT ACCESS OR USE THE SERVICES. BY REGISTERING FOR OR ACCESSING OR USING THE SERVICES, YOU AGREE TO THE TERMS AND CONDITIONS IN THIS PRIVACY POLICY AND IN OUR TERMS OF USE. IF YOU ARE NOT AT LEAST 18 YEARS OLD, YOUR PARENT OR LEGAL GUARDIAN MUST REGISTER AND AGREE TO THIS PRIVACY POLICY AND OUR TERMS OF USE ON YOUR BEHALF.
This Privacy Policy may change from time to time. If we change this Privacy Policy, we will update the “Last modified” date above and provide a notice about the update on applicable Apps. Continued use of the Services after the effective date of a change to this Privacy Policy will be deemed to be your agreement to those changes.
Information that you provide. When you register for and access or use the Services, (as defined in our Terms of Use), we may collect (1) personal information, including: name, mailing address, email address, phone number, username, password, demographic information (such as your age, height, weight, gender, occupation); (2) your doctor’s name, practice name, address, and contact information (each, a “Provider”); (3) information about your asthma and lung health; (4) any other information you provide while accessing or using the Services; and (5) information that we automatically collect as described in this Privacy Policy. Some of this information will be retrieved and saved on our systems and may include a user token or other persistent identifier. In connection with your use of the Services, we may ask you additional questions regarding your symptoms and other health, situational or environmental conditions, and your responses may be stored, processed and shared with your Providers by us and through the App. Such information regarding your asthma and lung health, symptoms, Device Data (defined below), and responses to follow-up questions through the Services will be referred to herein as your “User Health Data”.
Device Data. If you are using a Device and Intermediary App in connection with your use of the Services, your Device collects data to measure and monitor airflow into and out of your lungs, including air intake and exhalation and the speed of your breath (“Device Data”). The data collected may vary depending on your Device and the settings you have chosen for your Device, the Intermediary App (such as iSpirometry®), or our App. You may share the Device Data from the Intermediary App to us through our App or our third party messaging provider. You control how you wish to share this Device Data with us and your Providers. This information may include date and time of usage from your Device and your responses to our follow up questions.
Information that your Providers provide. You understand and agree that the Providers may contact us or you, we may contact them or you, they may share with us or you, and we may share with them or you any information about you that is necessary or useful to enable us to provide the Services that you request of us. Such information may include, among other information, User Health Data and other information described in the Information you provide paragraph above.
Direct communications. When you or your Providers send email, post information on or through the Site or Apps, or communicate directly with us by some other method, we may collect information about you in such communications (and we may retain the communication) and use and share such information or communications as described in this Privacy Policy. You agree that we may communicate with you about the Services through the App or using your email address, phone number, mailing address, or any other means of communication that you authorize or that you use to communicate with us.
Information Automatically Collected; Cookies; Tags. When you access or use the Services, we may collect information about you and your computer or device, including through the use of both session and persistent “cookies,” “pixel tags,” or “web beacons” (collectively, “Tags”). “Cookies” are small data files stored on your hard drive, and “pixel tags” or “web beacons” are small graphic files placed on a website or within the body of an email for the purpose of tracking your internet activity and tracking when emails are opened or accessed. A “session” Tag will not collect information once you close the program used to access the Tag (e.g., a web browser), while a persistent Tag will collect information until it is deleted.
The type of information we automatically collect when you access or use the Services may include the IP (Internet Protocol) address of your computer or device; information about Tags on your computer or device; pages you viewed on the Site; how long you spent accessing each page; how long you used an App; times and dates that you accessed or used the Services; your computer or device type and operating system type; browser type and language; and other information about how you accessed or used the Services.
We also use Google Analytics to understand how the site is being used. Google Analytics uses permanent cookies on your web browser to identify you as a unique user. Please see Google’s privacy policy for more information on how such data is collected and shared by Google.
Administering the Services. We use information you and Providers provide, and information that we collect as described in this Privacy Policy, to administer the Services; including to send you follow-up questions, notices or alerts, to allow you and other users to access and use the Services; to diagnose problems with the Site, Services, and Apps; to provide information you request or to respond to communications by you, your Providers; and to improve the Site, Services, or Apps.
We also analyze your information and your access and use of the Services in order to improve and customize your experience, including remembering information so you will not have to reenter it. We may also use such information to contact you regarding changes, system maintenance and outage issues, account or membership issues, or otherwise troubleshoot problems related to the Site, Services, or Apps.
We may share with your Providers any information about you that is necessary or useful to enable us to provide the Services that you request of us.
Communications with your Providers. We may share your information with your Providers, including information collected from your Device (if applicable) and which you choose to share with us, including User Health Data, through our App or third party messaging partner. We cannot control how any Provider may use or disclose of the information you may make available through use of the Service.
Improving our Products and Services. We may use your data, including your User Health Data, to improve our algorithms, technology, products and services, including to train our software and to gain greater understanding of the factors involved in controlling and monitoring asthma and lung health. For these purposes, unless otherwise expressly permitted by you, we will anonymize or de-identify your User Health Data in a way that complies with HIPAA requirements so that such User Health Data is not identifiable or linkable to you. For example, we may request that you consent to use of zip code level data so that we may track applicable environmental factors and improve our algorithms.
Service providers. We will disclose your information to our service providers that assist with the Site, Services, or Apps. For example, we may use a third party messaging service to gather additional information about your symptoms based on information collected by the Device. We contractually require our service providers not to use or share your information for purposes other than as needed to provide the applicable services.
Marketing Communications. We may in the future distribute a newsletter or other marketing or promotional communications to inform our user about promotions, upcoming events, news about products and services offered by us and our selected partners or news and information relating to lung health, wellness or asthma conditions. Prior to sending you any such newsletter or other marketing communications, we will obtain your consent. Thereafter, our marketing emails will tell you how to “opt-out.” If you opt out, we may still send you non-marketing emails, including emails about purchase confirmations, invoices, technical notices, security alerts, and support and administrative messages.
Other disclosures. We may disclose your information if we have a good faith belief that access, use, preservation, or disclosure of such information is reasonably necessary to satisfy any applicable law, regulation, legal process or other governmental or law enforcement request; to enforce our Terms of Use, including investigation of potential violations; detect, prevent, or otherwise address fraud, security or technical issues; or protect against or mitigate harm to the rights, property or safety of us, you, other users, or the public as required or permitted by law. We may also use personal and health-related data, including geographic location and demographic data, to track overall symptom reporting, monitoring spread of CV19(or other disease)-like symptoms and reporting to public health databases and agencies.
Aggregate and non-personally identifiable information. We may use non-identifiable anonymous data that is based on users’ access or use of the Services, including the User Health Data, and combine it with other anonymous data to create what is referred to as “Aggregate Data” that may be used by us to improve the Services or disclosed to third parties. Aggregate Data is information that describes the habits, usage patterns and/or demographics of users as a group but does not reveal the identity of particular users. For example, Aggregate Data may provide information on the types of procedures for which you may require additional reminders or tasks, or how different features of the Services are accessed or used by different demographic groups. Aggregate Data may be used to determine such information as user demographics and access and usage patterns of the Services. We may use Aggregate Data to understand the needs of our users and to determine what kinds of products and services we can offer, including improvements and new products. We may also share Aggregate Data with third parties. Except as described in this Privacy Policy, we will not provide your personally identifiable information for marketing or other purposes without your consent.
Corporate events. If we become involved in a merger, acquisition, or any form of sale of some or all of our assets, your information may be included in the assets sold or transferred to the acquirer. You agree that we may transfer or assign the information we have collected about you in connection with any such event. In the event of a bankruptcy, insolvency, reorganization, receivership or assignment for the benefit of creditors, we may not be able to control how your personal information is treated, transferred, or used.
With permission. We may share your information for reasons not described in this Privacy Policy only with your permission.
You may request that we delete personal information we collect about you by sending an email to privacy@vitalflohealth.com. Upon your request or if you uninstall applicable Apps, we will take reasonable steps to remove your personal information from the active part of the Services. However, due to the nature of the Site, Services, and Apps, it is not feasible for us to delete or destroy all personal information that you provide to us. Even if you request that we delete your personal information, we will retain any information that we are required by law to retain. Information that we retain will be held in accordance with this Privacy Policy until such information is deleted or destroyed. Additionally, even after you request that we delete your personal information, copies of that information may remain viewable elsewhere to the extent it has been shared, copied, or stored by you, your Providers or third parties.
California requires operators of websites or similar services to make certain disclosures to users who reside in California regarding their rights, specifically:
Your Consumer Rights. California consumers have the right to request access to their personal data, additional details about our information practices and deletion of their personal information (subject to certain exceptions). California consumers also have the right to opt out of sales of personal information, if applicable. We describe how California consumers can exercise their rights under the CCPA below. Please note that you may designate an authorized agent to exercise these rights on your behalf by providing written materials demonstrating that you have granted the authorized agent power of attorney. Please note that if an authorized agent submits a request on your behalf, we may need to contact you to verify your identity and protect the security of your personal information. We will not fulfill your CCPA request unless you have provided sufficient information for us to reasonably verify you are the consumer about whom we collected personal information. We will not discriminate against you if you choose to exercise your rights under the CCPA.
Rights to Know. You may request, no more than twice in a 12-month period, access to the specific pieces of personal data we have collected about you in the last 12 months. You may also request additional details about our information practices, including the categories of personal information we have collected about you, the sources of such collection, the categories of personal information we share for a legitimate business or commercial purposes, and the categories of third parties with whom we share your personal information. You may make these requests by contacting using the contact information provided below in the “Contact Us” Section. After submitting your request, please monitor your email for a verification email. We are required by law to verify your identity prior to granting access to your data in order to protect your privacy and security.
Copies of Personal Information. You may request, no more than twice in a 12-month period, transportable copies of your personal information that we have collected about you in the last 12 months. You may make these requests by contacting using the contact information provided below in the “Contact Us” Section. After submitting your request, please monitor your email for a verification email. We are required by law to verify your identity prior to granting access to your data in order to protect your privacy and security.
Deletion. You may request that we delete the personal information we have collected about you. Please note that we may retain certain information as required or permitted by applicable law. You may make these requests by contacting us using the contact information provided below in the “Contact Us” Section. After submitting your request, please monitor your email for a verification email. We are required by law to verify your identity prior to granting access to your data in order to protect your privacy and security.
Do-Not-Track. Some browsers give individuals the ability to communicate that they wish not to be tracked while browsing on the Internet. California residents are entitled to know how we respond to “Do Not Track” browser settings. However, we do not currently take actions to respond to Do Not Track signals because a uniform technological standard has not yet been developed.
You may update, change, or correct your personal information through the App, the Services or by contacting us at support@vitalflohealth.com. We will update your account, membership, or information as requested, provided, that we may decline to update information if we determine the request to be impractical (for instance, requests concerning information residing on backup tapes or other historical data) or to be inconsistent with our data retention practices (described above). In any case where we provide information access and correction, we perform this service free of charge, except if doing so would require a disproportionate effort.
Social media sites. We may have pages or other presence on various social networking sites or services, such as Facebook, Twitter, and the like. Any information you post or provide through such sites and services will be subject to the policies of those sites and services.
Links to third-party sites. This Privacy Policy addresses only the collection, maintenance, use, transfer and disclosure of information collected by or through the Site, Services, and Apps. It does not apply to the practices of third parties, including any Device or Intermediary App providers that we do not own or control. We do not endorse or make any representations about third parties or third-party websites, devices or apps. We encourage you to review the privacy policy of any such third parties.
Disclaimer and release. We cannot control how any Providers, or third parties might use or disclose your information, so be sure that you trust them and that you are comfortable with the information that may be shared with them. You are responsible for designating your Providers and for keeping your list of Providers current, so please add, remove, or modify relevant information about Providers as such information changes.
Our servers are located in the United States of America and the access and use of Services are governed by U.S. law, this Privacy Policy, and our Terms of Use. By accessing or using the Services from outside the United States, you agree that you consent to the transfer of your personal information to the United States, and to the maintenance and processing of your information in the United States, which might not have protections that meet applicable requirements in the country in which you are located.
The Site, Services, and Apps are not intended for use by minors under the age of 13, unless through a parent or guardian. If we learn that a child under the age of 13 has provided us with personal information without parental consent, we will promptly take reasonable and appropriate actions to remove such user and delete any personal information from our servers.
In certain situations, we are a "Business Associate," as defined by HIPAA (the federal Health Insurance Portability and Accountability act) of certain “covered entities”, and have certain federal, state and contractual restrictions as to how we can use your "protected health information" (PHI), including with respect to the Providers. In other situations, we are required by federal and state data protection laws to protect the confidentiality of your Personally Identifiable Information (PII). When acting as a Business Associate, we may only use or disclose your PHI and PII as required by law or, in the case of PHI, as permitted by the Business Associate Agreements (BAAs) we have with our customers including Providers, and as otherwise expressly permitted by you. Please be aware that when you give others access to your data (including PHI and PII), they may be able to use, reproduce, distribute, display, transmit, and/or communicate that data to others and the public. Please consider carefully what you choose to share or make public. We shall not have any responsibility for access, use or disclosure of your data by people you authorized to have access to your user account. If you are using the Service in coordination with your Providers or as part of a research study, you are granting access to your health information (including PHI and PII) to the Providers and study personnel. You expressly consent to the access and disclosures outlined in this section.
In the absence of such business associate agreement or provider agreement, you understand and agree that your information is not protected under HIPAA. However, we will take reasonable security measures to protect against unauthorized access to or unauthorized alteration, disclosure, or destruction of your information. However, we cannot guarantee your information will be absolutely secure or that unauthorized persons will not access or use your personal information for improper purposes. In the event of a breach of security affecting the personal information that you or Providers have provided to us, or the personal information that we have collected, we will take remedial actions as required by applicable laws, which might include providing you notice of such breach. You agree that we may send you such notices via the Site, Services, Apps, email, or mail.
If you have any questions or suggestions regarding this Privacy Policy or the information described in this Privacy Policy, please contact us at: privacy@vitalflohealth.com.