Terms of Use

These Terms of Use are effective June 6th, 2012 and replace all prior Terms of Use

Welcome to Vitals, an online and mobile service provided by MDx Medical, Inc. offering information about healthcare providers.

PLEASE READ THESE TERMS OF USE CAREFULLY BEFORE YOU DOWNLOAD, INSTALL OR USE THE VITALS MOBILE APPLICATION OR USE, BROWSE OR ACCESS THE VITALS.COM WEBSITE: BY USING, BROWSING OR ACCESSING THE WEBSITE OR THE MOBILE APPLICATION, YOU ARE CREATING A BINDING CONTRACT BETWEEN YOU AND MDx MEDICAL, INC. AND AGREEING THAT YOU HAVE READ AND UNDERSTOOD THESE TERMS OF USE AND ARE BOUND BY THESE TERMS.

If you do NOT agree with any of the terms, conditions or requirements of these Terms of Use, please do NOT download, install or use the mobile application or use, browse or access the website.

The Vitals.com website and the Vitals mobile application (the “Mobile App”) (collectively, “Vitals”) is provided to You by MDx Medical, Inc., including any of its related, affiliated and/or subsidiary companies (individually and collectively, “MDx,”We” or “Us”). Vitals does not provide medical or health advice but offers information on practicing physicians and other healthcare providers. Vitals organizes key information to help patients make informed choices in their search to independently assess particular physicians, long-term care facilities, hospitals, insurers and other providers of healthcare services and persons working on their behalves (collectively, “Healthcare Providers”). The information is free of charge and is offered to the public for its non-commercial use.

To enable such assessment, Vitals includes profiles, objective and subjective ratings, feedback, comments, indexes, scorecards, materials and other informative details about the Healthcare Providers. The information used to drive Vitals is compiled from a variety of sources, including independent surveys, publicly available records, Vitals account registrants and third-party providers, then processed using various empirical algorithms, and finally arranged in a non-complicated, simple-to-use and easy-to-view arrangement.

The following Terms of Use are a User Agreement that governs Your access to and use of Vitals, including the profiles, objective and subjective ratings, feedback, comments, indexes, scorecards, materials and other informative details about the Healthcare Providers and any other content (collectively, the “Content”) and all of the products and services (collectively, the “Products and Services”) offered by MDx available on or through Vitals. The words “User,” “You” and “Your” as used in this agreement refer to users of Vitals, including, without limitation, Healthcare Providers who access Vitals to edit any Content related to them and users who post ratings, reviews and/or comments about Healthcare Providers.

USER AGREEMENT

PLEASE READ THIS AGREEMENT CAREFULLY BEFORE SELECTING THE “I AGREE” BUTTON ASSOCIATED WITH THIS USER AGREEMENT OR BEFORE DOWNLOADING THE MOBILE APP OR ACCESSING, USING OR BROWSING VITALS OR ANY OF THE CONTENT OR THE PRODUCTS AND SERVICES.

BY CLICKING ON “I AGREE,” OR BY ACCESSING, BROWSING OR USING VITALS OR ANY OF THE CONTENT OR THE PRODUCTS AND SERVICES, YOU, ON BEHALF OF YOURSELF OR YOUR ENTITY, AS APPLICABLE, ACKNOWLEDGE THAT:

  1. YOU ARE AT LEAST 18 YEARS OLD AND HAVE READ AND UNDERSTAND ALL OF THE TERMS AND CONDITIONS OF THIS USER AGREEMENT;
  2. YOU AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS USER AGREEMENT;
  3. THIS USER AGREEMENT IS THE LEGAL EQUIVALENT OF A SIGNED, WRITTEN CONTRACT BETWEEN YOU AND MDx; AND
  4. IF ACCESSING, BROWSING OR USING VITALS OR ANY OF THE CONTENT ON BEHALF OF AN ENTITY, YOU HAVE FULL AUTHORITY TO BIND YOUR ENTITY TO ALL OF THE TERMS AND CONDITIONS OF THIS USER AGREEMENT.

IF YOU ARE NOT WILLING TO BE OR CANNOT BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION THE ACKNOWLEDGEMENT SET FORTH IN PARAGRAPHS 1-4 ABOVE, THEN DO NOT SELECT THE “I AGREE” BUTTON ASSOCIATED WITH THIS USER AGREEMENT OR DOWNLOAD THE MOBILE APP OR ACCESS, BROWSE OR USE VITALS OR ANY OF THE CONTENT OR THE PRODUCTS AND SERVICES. MOREOVER, MDx DOES NOT AND WILL NOT GRANT YOU ANY RIGHT OR LICENSE TO ACCESS, BROWSE OR USE VITALS, THE CONTENT OR THE PRODUCTS AND SERVICES WITHOUT YOUR WILLINGNESS AND ABILITY TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, THE PRECEDING ACKNOWLEDGEMENT.

LICENSE

You agree by accessing, browsing or otherwise using Vitals, including the Products and Services, Vitals and the Content are and remain the sole property of MDx or third-party providers, as applicable. Except as expressly permitted by MDx in writing, You agree that Your license to access, browse and/or use the Content and Products and Services is limited solely to a personal, revocable, nonexclusive, non-transferable license to (i) access and view Vitals and the Content, and (ii) copy, download and store the Content (e.g., in a temporary cache) to enable printing and/or offline viewing of any such Content solely for Your non-commercial use and not for resale or distribution to anyone else. You also agree that, with respect to any copy of the Content that You download, create, generate, store and/or print, You will reproduce and include all copyright and other proprietary notices included in any such Content.

Except as expressly permitted by MDx in this User Agreement or otherwise in writing, You will not copy, reproduce, modify, adapt, translate, distribute, transmit, download, upload, post, sell, rent, license, transfer, publicly perform, publicly display, mirror, frame, scrape, extract, wrap, create derivative works of, reverse engineer, decompile or disassemble any aspect of Vitals or any of the Content, in whole or in part, in any form or by any means, whether manual or automatic. Further, You may not use any metatags, meta elements, “hidden text” or other equivalents using the names “MDx Medical, Inc.,” “MDx”, www.vitals.com, “Vitals,” “Vitals health information exchange,” “Vitals account,” “Vitals mobile application,” “Vitals privacy policy” or any other colorable equivalent without the prior written authorization of MDx.

SUBMISSIONS

You acknowledge and agree that by submitting remarks, suggestions, ideas, graphics, feedback, edits, concepts, comments, reviews, ratings, illustrations and other materials (other than information given in connection with registration) to MDx through Vitals (individually and collectively, the “Submissions”), you (i) grant MDx a nonexclusive, royalty-free, perpetual, transferable, irrevocable and fully sublicensable right to use, reproduce, modify, adapt, translate, distribute, publish, create derivative works from and publicly display and perform the Submissions throughout the world in any media, now known or hereafter created without attribution, (ii) grant MDx the right to pursue at law any person or entity that violates Your and/or MDx’s rights in Your Submissions, and (iii) forever waive any and all of Your rights, including but not limited to moral rights, if any, in and to Your Submissions, including, without limitation, any all rights or requirements of attribution or identification of You as the author of the Submissions or any derivative thereof. You further acknowledge and agree that Your Submissions are non-confidential and do not contain proprietary information.

Except as described in MDx’s Privacy Policy (the “Privacy Policy”), MDx will not be required to treat any of Your Submissions as confidential, and you acknowledge and agree MDx may use in connection with its business any of the concepts and ideas contained in Your Submissions (including without limitation, product or advertising ideas) without compensation to You and MDx will not incur any liability to You as a result of any similarities between concepts and ideas contained in Your Submissions and future MDx operations and business. Except as otherwise set forth in this User Agreement, MDx will be entitled to use the Submissions for any commercial or other purpose whatsoever without compensation to You or any other person.

Your Submissions, including personally identifiable information contained therein, are made voluntarily and are subject to the Privacy Policy (see below). You are responsible for the content of Your Submissions and agree to defend (at MDx’s option and at Your sole expense), indemnify and hold MDx harmless from any damages, losses, costs, or expenses, including reasonable attorneys’ fees, which MDx may incur as a result of Your Submissions.

With respect to Your Submissions, You acknowledge, warrant and agree that:

  1. If your Submissions concern Healthcare Providers, Your Submissions will be true and accurate, are the original work of Your authorship, only concern or relate to the care or service that You, Your minor child or Your ward received from the Healthcare Providers being reviewed, that You are not related to or employed by the Healthcare Providers being reviewed and that You are not impersonating any other person;
  2. If You are a Healthcare Provider submitting or editing any Content, Your Submissions will be true and accurate, are the original work of Your authorship, You are the Healthcare Provider specifically identified in the Content being submitted or edited, and Your Submissions will only concern You and the services that You provide.
  3. If You are a person authorized by a Healthcare Provider to submit or edit Content specifically related to that Healthcare Provider, Your Submissions will be true and accurate, are the original work of Your authorship, You are authorized by the Healthcare Provider identified in the Content being submitted or edited to make such edits and Submissions and Your Submissions will only concern that Healthcare Provider and the services provided by that Healthcare Provider.
  4. You have the right to make Your Submissions without violating the copyright, trademark, patent or other intellectual property rights of any person or entity, and the Submissions will not contain any content, personally identifiable information (other than the name of the Healthcare Providers being reviewed), information, or materials of any kind that relates or refers to any other person or entity other than the person or entity being reviewed;
  5. Your Submissions will not violate any law, or in any manner infringe or interfere with the rights of others, including but not limited to the use of names, information, or materials that (i) libel, defame, or invade the privacy of any third party, (ii) are obscene or pornographic, (iii) harmful, threatening, offensive, abusive, harassing, vulgar, false or inaccurate, racially, sexually, ethnically or are otherwise objectionable or otherwise contrary to the laws of any place where such Submissions may be accessed, (iv) constitute personal attacks on other individuals, (v) infringe the intellectual property, trade secret or proprietary rights of any third party, (vi) promote criminal or other illegal activity, (vii) promote or advertise any person, product or service or solicit funds, or (viii) are deemed confidential by any contract or policy.

Users, other than Healthcare Providers and persons acting on their behalves who are submitting Content in accordance with these terms and conditions, are permitted to post only one (1) Submissions regarding the same Healthcare Provider, entity, procedure or subject during any thirty (30) day period.

MDx retains the right to review and delete or remove from public view on Vitals and delete from any other media or server where Your Submissions may be stored or displayed by or on behalf of MDx, any Submissions, which MDx in its sole discretion considers illegal, offensive, obscene, abusive, harassing, commercial in nature, infringing, inappropriate or otherwise violates the terms and conditions of this User Agreement. If notified of an allegation that Vitals contains infringing information, materials or other content, MDx may investigate the allegation and determine in MDx’s sole discretion whether to remove or request the removal of the same from Vitals and from any other media or server where the infringing content may be stored or displayed by MDx. Notices to MDx regarding any alleged copyright infringement should be sent to Vitals, Attn: Head of Legal Department, 210 Clay Avenue, Suite 140, Lyndhurst, NJ 07071 or to support@vitals.com.

USER IDS AND PASSWORDS

Access to certain areas of Vitals, the Content and the Products and Services are limited by a user identifier (“User ID”) and password, which are selected and/or supplied by You as part of registering for a service account via the Vitals.com website and/or the Mobile App (individually and collectively, the “Vitals account”). You may need separate User IDs and passwords to register a Vitals account both on the Vitals.com website and via the Mobile App. By registering a Vitals account, You represent, warrant and agree that: (i) You are at least 18 years of age, (ii) You are using Your actual identity, (iii) You have provided only true, accurate, current and complete information about You during the registration process, and (iv) You will maintain and promptly update the information that You provide to keep it true, accurate, current and complete.

By logging onto a Vitals account using a password, You represent, warrant and agree that You are authorized to use such password and to engage in the activities that You conduct thereunder. You further agree that You will be solely responsible for the maintenance and security of Your User ID and password. You also agree that You will be solely responsible for any activities conducted on or through Vitals in connection with Your User ID and password regardless of whether or not You are the individual who undertakes such activities. This includes any unauthorized access and/or use of Your account, Your computer or Your mobile device. Accordingly, You release and hold harmless MDx from any and all claims and causes of action arising out of or resulting from a third party’s unauthorized use of Your Vitals’ account. Your User ID and password are unique to You, and You agree not to disclose or share Your User ID and password to or with any third party.

MDx reserves the right to deny or revoke access to Vitals, or any part thereof, at any time in its sole discretion, with or without cause. Your access to Vitals will terminate upon the termination of this User Agreement for any reason at the sole discretion of MDx. If You wish to cancel a password, or if You become aware of any loss, theft or unauthorized use of a password, please notify MDx immediately by sending an e-mail to support@vitals.com or writing to Vitals, 210 Clay Avenue, Suite 140, Lyndhurst, NJ 07071.

SITE MONITORING

MDx may monitor or review any areas on Vitals where Users transmit or post communications or communicate solely with each other, for the purpose of promoting its efficiency, usefulness, appropriateness of use and compliance with this User Agreement. However, MDx does not undertake to monitor or review any or all Submissions, or every posting or communication, and MDx disclaims any liability related to the content of any such postings and communications, whether or not arising under the laws of copyright, trademarks, libel, privacy, obscenity, or otherwise.

MDx is not responsible for screening, policing, editing or monitoring the Submissions and other third party statements posted or displayed on Vitals, including, without limitation, all third party advertising posted or displayed on Vitals. While MDx, from time to time and in its discretion, may monitor the content of the Submissions and other third party communications posted or displayed on Vitals, MDx does not endorse, support, sanction, encourage, verify, or necessarily agree with the Submissions and other comments, opinions, or statements posted on Vitals by Users and other third parties. Any information or material placed on Vitals by Users or other third parties, including advice and opinions, are solely the views and responsibility of those posting such information or material, and do not necessarily represent the views of MDx. MDx reserves all of its rights to discontinue in its sole discretion the Products and Services provided on Vitals in general or to any User or Healthcare Provider at any time.

Subject to the terms of the Privacy Policy, which is incorporated and made part of this User Agreement, MDx may disclose to third parties any records, electronic communications, information, materials or other content of any kind (i) if MDx believes in good faith that the law or legal process requires it, (ii) if such disclosure is necessary or appropriate to operate Vitals, or (iii) to protect MDx’s rights and property or the rights and property of MDx’s users and business partners.

PRIVACY POLICY

MDx recognizes the importance of protecting the privacy of Users and visitors to Vitals. The Vitals Privacy Policy is incorporated and made part of this User Agreement. To view the most current version of the Privacy Policy, please visit the Privacy Policy page on the Vitals.com website or click here, if you are reading this on the Vitals.com website. Any changes to the Privacy Policy will be communicated on the Privacy Policy page on the Vitals.com website and Users with an account on the Mobile App, will also be sent an update notice to their mobile device.

INTELLECTUAL PROPERTY

All right, title and interest in and to the Content, including without limitation the graphical display and arrangement of Vitals and the Content, and all intellectual property rights embodied therein, are the property of MDx or its licensors or suppliers, including any of the Content that may be stored or displayed by MDx on other media or servers. Vitals and the Content contained and referenced therein are for informational purposes only. Any reproduction, retransmission or other use is strictly prohibited, except as otherwise provided by this User Agreement or by MDx’s express authorization. Requests for permission to reproduce any of the Content may be made by sending an e-mail to support@vitals.com, or writing to Vitals, 210 Clay Avenue, Suite 140, Lyndhurst, NJ 07071.

VITALS, VITALS WHERE DOCTORS ARE EXAMINED and PATIENTS’ CHOICE are all trademarks or service marks (individually and collectively, the “Vitals Marks”) owned by MDx. All other trademarks, service marks, domain names, logos, and company names (collectively “Other Marks”) displayed or referred to on Vitals are trademarks, registered trademarks, service marks, domain names, logos, company names of or are otherwise the property of MDx or their respective owners.

Except as provided in this User Agreement, MDx does not grant You any rights in or to the Vitals Marks or the Other Marks. You agree that You shall not use the Vitals Marks or the Other Marks in any manner inconsistent with the provisions of this User Agreement, without the prior written authorization of MDx or the respective owners of the Other Marks as the case may be. Requests to use the Vitals Marks or other MDx Marks for purposes other than stated in this User Agreement may be made by sending an e-mail to support@vitals.com, or writing to Vitals, 210 Clay Avenue, Suite 140, Lyndhurst, NJ 07071.

The rating system used on Vitals, methodology therefore and the Vitals’ ratings of Healthcare Providers are the property of MDx and may not be reproduced in any manner without the prior written permission of MDx.

USE OF VITALS

Without limiting anything else contained in this User Agreement, You agree and acknowledge that:

  1. The Content, Submissions, databases used to store the Content, Submissions, Products and Services (“Databases”) and any other information contained therein are valuable intellectual property owned by or licensed to MDx, and that no proprietary rights therein are being transferred to You by this User Agreement.
  2. You will not, directly or indirectly:

    1. Use any of the Content, Submissions, Databases and any other information contained therein for any purposes other than Your personal, non-commercial evaluation of Healthcare Providers,
    2. Use the Content, Submissions, Databases, Products and Services and any other information contained therein to compile mailing lists or other lists of Healthcare Providers for commercial purposes,
    3. Use the Content, Submissions, Databases, Products and Services and any other information contained therein to establish independent data files or otherwise amass statistical information thereof or therefrom,
    4. Use the Content, Submissions, Databases, Products and Services and any other information contained therein in violation of any applicable laws or regulations,
    5. Publish or distribute in any medium Content, Submissions, Databases, any other information contained therein, and/or summaries or subsets thereof to any person or entity,
    6. Attempt to access or access any other User’s account,
    7. Attempt to obtain or ascertain or obtain or ascertain any other User’s user name, password and/or personal information by any means whatsoever,
    8. Attempt to elude or elude Vitals’ or MDx’s security systems,
    9. Attempt to gain access or gain access to Vitals in a fraudulent manner,
    10. Use Vitals for any purposes other than those intended by MDx, as determined by MDx in its sole discretion, or
    11. Upload or submit any data or information containing viruses or any computer code, corrupt files or programs engineered or intended to disrupt or destroy the functionality of any software, hardware, telecommunications, networks, servers, or other equipment.
  3. You specifically acknowledge and agree that any and all misappropriation or misuse of the Content, Submissions, Databases, Products and Services and any other information contained therein will cause irreparable harm to MDx and that in such event money damages will not constitute sufficient compensation to MDx; consequently, in the event that You, directly or indirectly, misappropriate or misuse any of the Content, Submissions, Databases, Products and Services and/or any other information contained therein, You specifically consent to MDx obtaining injunctive relief against You in addition to any other legal or financial remedies to which MDx may be entitled.

MDx reserves the right to modify and/or discontinue Vitals at any time, for any reason and without notice, and to terminate Your password and account should you be in violation of this User Agreement, including, but not limited to, the provisions of this section entitled “Use of Vitals”.

NOTICE OF ENFORCEMENT

MDx vigorously enforces its intellectual property rights to the fullest extent of the law. Accordingly, MDx will not hesitate to prosecute any unauthorized use or reproduction of any of the Content, Submissions, Databases, Products and Services and any other information contained therein that violate the protection afforded by the United States and international copyright law and trademark law, and/or other state, federal, and international laws and regulations, including laws pertaining to contracts, and privacy and publicity.

NO MEDICAL ADVICE

Vitals is not a provider of medical advice and no Content or other information contained on Vitals should be construed as medical and/or health advice. Always seek the advice of Your physician or other qualified Healthcare Provider for answers to any questions You may have regarding a medical or health related condition. Neither the Content, other information contained on Vitals, nor any other service offered by or through Vitals is intended to be relied upon for medical diagnosis or treatment. Never disregard medical advice or delay in seeking it because of something You have read on Vitals.

MDx does not recommend or endorse any particular Healthcare Provider whose information or ratings appear on Vitals. Rather, Vitals is only a “conduit” or intermediary that provides the aforementioned Content regarding Healthcare Providers. No Content or other information contained on Vitals should be construed as an endorsement of a particular Healthcare Provider. The Content and other information on Vitals include statements of opinion, which are not statements of fact or MDx’s recommendations to utilize the services of any specific Healthcare Provider. You should obtain any additional information necessary to make an informed decision prior to selecting and using any specific Healthcare Provider.

The opinions expressed on Vitals are those of its Users and not MDx. The Content is presented in summary form, is general in nature, and is provided for informational purposes only. MDx does not offer advice regarding the quality or suitability of any particular Healthcare Provider for any condition, including specific treatments or health conditions.

You agree to assume all responsibility in connection with choosing any Healthcare Provider, whether or not You obtained information about such Healthcare Provider on or through Vitals. You specifically acknowledge and agree that MDx is not responsible or liable for any advice, treatment or other services rendered by any Healthcare Provider, or for any malpractice claims and other claims that may arise directly or indirectly from any such advice, treatment or other services.

LINKS

Internet websites and mobile applications that are not owned, operated or controlled by MDx (“other websites and applications”) may link to or from Vitals or allow You to download or launch the Mobile App. Such other websites and applications contain information created, published, maintained, or otherwise posted by organizations not related to and otherwise independent of MDx. MDx does not endorse, approve, certify, maintain, or control these other websites and applications and does not guarantee the accuracy, completeness, efficacy, timeliness, or correct sequencing of information located at such addresses or on such applications. MDx provides the links only as a convenience. Use of any information obtained from such other websites and applications is voluntary, and reliance on it should only be undertaken after an independent review of its accuracy, completeness, efficacy, and timeliness as well as those other websites’ and applications’ respective terms of use and privacy policies. Neither the inclusion of the link on Vitals nor reference on the other websites and applications to any Healthcare Provider, product, process, or service by name, trade name, trademarks, service mark, manufacturer, or otherwise constitutes or implies endorsement, recommendation, or referral by MDx. You acknowledge and agree that MDx shall not be liable for any damages or injury resulting or arising from the content of or access to such other websites and applications.

MDx does not make any representations or give any warranties or conditions with respect to any information contained in or at such other websites and applications and You acknowledge and agree that MDx shall not be liable for any damages or injury resulting or arising from the content of or access to such other websites and applications. MDx does not endorse the individuals, companies or other similar entities, or any products or materials associated with such individuals, companies or other similar entities, which provide a link to Vitals. Unless approved in writing in advance by MDx, You agree not to: (i) provide or create a link to Vitals, or (ii) create any frames at any other websites or mobile applications pertaining to any of the Content located at Vitals.

DISCLAIMERS

YOU ACKNOWLEDGE, AGREE AND UNDERSTAND THAT:

VITALS AND THE CONTENT MAY INCLUDE TECHNICAL INACCURACIES AND/OR TYPOGRAPHICAL ERRORS. MDx MAY MAKE CHANGES OR IMPROVEMENTS THERETO AT ANY TIME WITHOUT NOTICE. VITALS AND THE CONTENT ARE PROVIDED “AS IS” AND WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND EITHER EXPRESSED OR IMPLIED. MDx DISCLAIMS, TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, ALL WARRANTIES AND CONDITIONS EXPRESSED OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ANY WARRANTIES CONCERNING THE AVAILABILITY, ACCURACY, RELIABILITY, COMPLETENESS, CURRENCY, QUALITY, PERFORMANCE OR SUITABILITY OF THE SITE, THE CONTENT, OR ANY PRODUCTS, SERVICES OR RESULTS OBTAINED ON OR THROUGH VITALS.

MDx DOES NOT REPRESENT OR WARRANT THE AVAILABILITY OF OR YOUR ACCESS TO THE VITALS.COM WEBSITE OR THE MOBILE APP, THAT VITALS AND YOUR USE OF VITALS WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT VITALS OR THE SERVER OR CODE THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. MDx DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OF OR THE RESULT OF THE USE OF VITALS AND/OR THE CONTENT IN TERMS OF THEIR CORRECTNESS, ACCURACY, TIMELINESS, RELIABILITY, APPLICABILITY OR OTHERWISE. YOU (AND NOT MDx) ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. THE ABOVE EXCLUSION MAY NOT APPLY TO YOU, TO THE EXTENT THAT APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES. IN ADDITION TO THE FOREGOING, YOU AGREE THAT YOUR USE OF VITALS AND THE CONTENT IS ENTIRELY AT YOUR OWN RISK.

MDx MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, THAT VITALS OR ANY OF THE CONTENT WILL ASSIST YOU IN IDENTIFYING A SUITABLE HEALTHCARE PROVIDER OR FOR ANY OTHER PURPOSE. MDx DISCLAIMS ANY AND ALL RESPONSIBILITY AND LIABILITY WITH RESPECT TO ANY AGREEMENTS YOU MAY MAKE WITH OR PRODUCTS OR SERVICES YOU OBTAIN FROM HEALTHCARE PROVIDERS OR THIRD PARTIES WHO OFFER PRODUCTS OR SERVICES ON OR THROUGH VITALS, AND YOU AGREE TO LOOK SOLELY TO SUCH HEALTHCARE PROVIDERS AND THIRD PARTIES WITH RESPECT TO ANY AND ALL CLAIMS ARISING OUT OF SUCH AGREEMENTS AND/OR SUCH PRODUCTS OR SERVICES.

LIMITATIONS ON LIABILITY

MDx WILL NOT BE LIABLE FOR ANY DAMAGES OR INJURY CAUSED BY YOUR USE OF VITALS AND THE CONTENT, INCLUDING BUT NOT LIMITED TO, ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DEFECT, DELAY IN OPERATION OF TRANSMISSION, COMPUTER VIRUS, OR LINE FAILURE. MDx WILL NOT BE LIABLE FOR ANY DAMAGES OR INJURY, INCLUDING BUT NOT LIMITED TO, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOST PROFITS AND DAMAGES THAT RESULT FROM INCONVENIENCE, DELAY, OR LOSS OF USE) THAT RESULT FROM THE USE OF, THE INABILITY TO USE, OR RELIANCE UPON, VITALS AND THE CONTENT OR ANY PRODUCTS OR SERVICES OBTAINED ON OR THROUGH VITALS, EVEN IF THERE IS NEGLIGENCE BY MDx OR BY AN AUTHORIZED MDx REPRESENTATIVE, OR AN AUTHORIZED MDx REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR ANY OF THE ABOVE. THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU TO THE EXTENT THAT APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR SUCH DAMAGES. MDx’S TOTAL LIABILITY TO YOU FOR LOSSES, DAMAGES AND CAUSES OF ACTION WILL NOT BE GREATER THAN THE AMOUNT YOU PAID TO MDx, IF ANY, TO ACCESS OR USE VITALS.

INDEMNITY

YOU AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS MDx AND ITS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AGENTS, CONTENT PROVIDERS, CUSTOMERS AND SUPPLIERS FROM AND AGAINST ANY AND ALL CLAIMS, PROCEEDINGS, DAMAGES, INJURIES, LIABILITIES, LOSSES, COSTS AND EXPENSES (INCLUDING REASONABLE ATTORNEYS’ FEES AND LITIGATION EXPENSES), RELATING TO OR ARISING FROM:

  1. YOUR USE OF VITALS (INCLUDING YOUR DOWNLOAD OR INSTALLATION OF THE MOBILE APP) AND ANY OF THE CONTENT, OR ANY PRODUCTS OR SERVICES OBTAINED ON OR THROUGH VITALS,
  2. ANY PRODUCTS OR SERVICES YOU OBTAIN BASED, IN WHOLE OR IN PART, ON THE CONTENT AND OTHER INFORMATION VIEWED OR OBTAINED ON, FROM OR THROUGH VITALS,
  3. ANY BREACH BY YOU OF THIS USER AGREEMENT,
  4. ANY SUBMISSIONS YOU MAKE OR POST ON VITALS, AND
  5. ANY OTHER ACTIVITY BY YOU ON OR IN CONNECTION WITH VITALS (INCLUDING, WITHOUT LIMITATION, INFRINGEMENT OF THIRD PARTIES’ INTELLECTUAL PROPERTY RIGHTS OR ANY OTHER NEGLIGENT, ILLEGAL OR WRONGFUL CONDUCT) BY YOU OR ANY OTHER PERSON ACCESSING VITALS USING YOUR VITALS ACCOUNT, YOUR COMPUTER OR YOUR MOBILE DEVICE.

RELEASE FOR FORCE MAJEURE

You absolve and release MDx and its officers, directors, shareholders, employees, agents, content providers, customers and suppliers from any claim of harm resulting from any cause(s) over which MDx or they do not have direct control, including, but not limited to, failure of electronic or mechanical equipment or communication lines, telephone or other interconnect problems, computer viruses or other damaging code or data, unauthorized access, theft, operator errors, severe weather, earthquakes, natural disasters, strikes or other labor problems, wars, or governmental restrictions.

TERM AND TERMINATION

This User Agreement will take effect at the earlier of the time You click “I Agree” to this User Agreement or that You access, browse or use Vitals or any of the Content, and continues in perpetuity unless terminated by You in accordance with this provision and/or by MDx. MDx reserves the right, at any time and for any reason, without notice to You, (i) to deny You access to Vitals and any of the Content, (ii) to change, remove or discontinue any of the Content or services available on or through Vitals, or (iii) to terminate this User Agreement.

You may terminate this agreement at any time by destroying: (a) all of the Content obtained from Vitals, including, without limitation, permanently deleting all of the Content you have copied or stored on any computer, mobile device and any media; and (b) all related documentation; and (c) if You have installed the Mobile App, also deleting the Mobile App from any existing mobile device upon which you installed it. In addition, and upon MDx’s request, You agree to certify in writing that all of the Content has been destroyed. The warranty disclaimers, limitations and exclusions of liability, reservation and grant of property rights and other terms and conditions of this User Agreement which by their nature are intended to survive and will survive the termination or expiration of this User Agreement for any reason.

NOTICES

Any notice or other document or communication required or permitted hereunder to MDx will be deemed to have been duly given only if in writing and delivered by any of the following methods:

  1. Certified U.S. mail, return receipt requested, postage prepaid, to MDx Medical Inc. at 210 Clay Avenue, Suite 140, Lyndhurst, NJ 07071; or
  2. Email sent to support@vitals.com.

Notices to MDx shall be deemed delivered when actually received by MDx.

Any notice or other document or communication from MDx required or permitted hereunder will be sent to the e-mail address that You provide when You register with Vitals (or any updated e-mail address that You may provide after registering). Such notice will be deemed received by You the business day after the e-mail is sent, whether or not You provided an accurate or current e-mail address.

Should You elect to send or receive e-mail communications of any kind to or from MDx, You represent and warrant to MDx that Your e-mail service has appropriate and adequate security systems necessary to prevent unauthorized access to outbound or inbound e-mail transmissions.

JURISDICTION; COMPLIANCE WITH LAWS

Except as set forth otherwise herein, MDx controls and operates Vitals from the United States of America and makes no representation that the Content is appropriate or available for use in other locations. You are responsible for compliance with applicable local laws including, without limitation, all export and import laws. Some of the Content may be subject to export controls imposed by the United States and may not be downloaded or otherwise exported or re-exported: (i) into (or to a national or resident of) any country to which the U.S. has placed an embargo; (ii) to anyone in the US Treasury Department’s Specially Designated national list, or (iii) to anyone on the US Commerce Department’s Table of Denial Orders. If You download or use the Content, You represent and warrant that You are not located in, or under the control of, or a national or resident of any such country or on any such list.

Access, browsing and use of Vitals, the Content and this User Agreement, and all matters or issues collateral thereto are all governed by United States federal law and/or the laws of the State of New Jersey, without regard to any conflict of laws provisions that would refer to and/or apply the substantive laws of another jurisdiction.

SUBJECT TO THE MANDATORY ARBITRATION PROVISION BELOW, ANY LEGAL ACTION OR PROCEEDING RELATING TO YOUR ACCESS TO, OR DOWNLOADING, INSTALLATION OR USE OF, THE VITALS WEBSITE OR THE MOBILE APP SHALL BE INSTITUTED ONLY IN A STATE OR FEDERAL COURT LOCATED IN THE STATE OF NEW JERSEY, U.S.A., AND YOU AND MDx AGREE TO SUBMIT TO THE JURISDICTION OF, AND AGREE THAT VENUE IS PROPER IN, THESE COURTS IN ANY SUCH LEGAL ACTION OR PROCEEDING.

ARBITRATION

Any controversy or dispute between You and MDx (the “parties”) concerning Vitals, the Content, this User Agreement and/or all matters or issues collateral thereto shall be submitted to final and binding arbitration as the sole and exclusive remedy for such controversy or dispute. Any claim shall be made by filing a demand for arbitration within one (1) year following the occurrence first giving rise to the claim. The right and duty of the parties to resolve disputes by arbitration shall be governed exclusively by the Federal Arbitration Act, and arbitration shall take place according to the Commercial Rules of the American Arbitration Association. The arbitration will be held in Lyndhurst, New Jersey. Each of the parties shall bear all of its own costs of arbitration, except that the fees of the arbitrator shall be divided equally between the parties. The arbitrator shall have no authority to amend or modify the terms of this User Agreement or to award punitive or exemplary damages, and the award may be enforced by judgment. Before, during, or after arbitration each party shall have the right, without awaiting the outcome of the arbitration, to seek interim injunctive relief from an appropriate court including but not limited to temporary restraining orders or preliminary injunctions. Seeking any such remedies shall not be deemed a waiver of either party’s right to compel arbitration.

WAIVER

No delay or omission by MDx to exercise any right occurring upon any noncompliance on Your part with respect to any of the terms of this User Agreement will impair any such right or power or be construed to be a waiver thereof. Any waiver by MDx of any of the covenants, conditions or agreements to be performed by You will not be construed to be a waiver of any succeeding breach thereof or of any covenant, condition or agreement herein contained.

SEVERABILITY

If any portion of this User Agreement is adjudged invalid or unenforceable by an arbitrator or a court of competent jurisdiction, the remaining portions will remain valid, enforceable, and in effect.

INDEPENDENT CONTRACTOR

MDx is an independent contractor; nothing in this User Agreement shall be construed to create a partnership, joint venture, or agency relationship between You and MDx.

CONTINUED USE DEEMED ACCEPTANCE

MDx reserves the right, at its sole discretion, to change, alter, amend or otherwise modify this User Agreement from time to time. MDx will post any changes on this page (with the effective date of the update near the top of this page) and if You have an account on the Mobile App, You will be sent an update notice to Your mobile device. Vitals encourages You to check back and review this agreement for any updates or modifications. After any such modification becomes effective, MDx will deem Your continued use of Vitals or any of the Content to constitute Your acceptance of and agreement to such modification.

ENTIRE AGREEMENT

This User Agreement constitutes the entire agreement between You and MDx with respect to Your use of Vitals, the Content and the Products and Services, and supersedes any and all prior understandings or agreements between You and MDx, whether written or oral. You acknowledge that, in providing You access to and use of Vitals and the Content, MDx has relied on Your acceptance of this User Agreement.