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. 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.
(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 Devices 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 AuthorizedIndividual-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 delete your account 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 theAuthorized 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
TheService 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 your use of the 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 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 (“UserContent”). 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.
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.
Aspart 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 sharePersonal 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 theService 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.
AuthorizedProviders are “covered entities” as defined in and for the purposes of the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) and theHealth 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.
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
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 andService 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 theService.
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 yourAuthorized Providers, the Devices and Intermediary Apps 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 AuthorizedProviders, the Devices or Intermediary Apps or in your User Content. 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 yourAuthorized 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 WILLBE 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, ANDUSE 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 TOTHE 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 FORUSE IN THE UNITED STATES, AND NEITHER COMPANY NOR ANY OF COMPANY' LICENSORS OR SERVICE PROVIDERS MAKES ANY REPRESENTATION CONCERNING THE SERVICE WHEN USED INANY OTHER COUNTRY.
14. Limitation ofLiability
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 ANYOF 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 theService (a “Trial Use”), the following terms shall apply in connection with your Trial Use, notwithstanding anything to the contrary herein: (i) yourTrial 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. TrialUse 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 OFTHIS AGREEMENT BY US OR FAILURE OF THE SERVICE WITH RESPECT TO SUCH TRIAL USEIS TO TERMINATE YOUR USE OF THE SERVICE.
16. Governing Law;Arbitration Agreement
Arbitration. Please read thisArbitration 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 thisArbitration 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 ofDispute (“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 (“ADRProvider”) 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 ADRProvider 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 ArbitrationAgreement. 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 ArbitrationAgreement may be waived by the party against whom the claim is asserted. Such waiver shall not waive or affect any other portion of this ArbitrationAgreement.
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. GeneralLegal Terms
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 AppMarket, and that the App Market is not responsible for the Application or the content therein;
(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 theApplication to conform to any applicable warranty, including those implied bylaw, 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;
(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.