Vitals Consumer Services, LLC, together with our related, affiliated and/or subsidiary companies (“VCS”, “Vitals”, “We”, “Us”, or “Our”) welcomes you (“You”). We invite You to access and use our products and services (collectively, the “Products and Services”), which are made available to You through a variety of platforms, including, but not limited to, www.vitals.com (the “Website”) and our mobile app, which is accessible through tablets, cell phones, and other devices (the “App”). The Website and the App are collectively referred to as the “Platform.”
THE PLATFORM DOES NOT PROVIDE MEDICAL ADVICE. The Website, the App, the Products and Services, and the Content are provided for informational purposes only, and are not intended as a substitute for professional medical advice, diagnosis, or treatment. 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. The Website, the App, the Products and Services, or the Content is not 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 our Platform. Reliance on the Website, the App, the Products and Services, and the Content is solely at Your own risk.
We do not recommend or endorse any particular Healthcare Provider (defined below) whose information, reviews, or ratings appear on our Platform. Rather, Vitals is only a “conduit” or intermediary that provides the aforementioned content regarding Healthcare Providers. No Content or other information contained on the Platform should be construed as a recommendation or endorsement of a particular Healthcare Provider. The Content and other information on Platform include statements of opinion, which are not statements of fact or Our 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 Platform are those of Our Users and not Ours. We do 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 our Platform. You specifically acknowledge and agree that We are not responsible or liable for any advice, treatment or other services rendered by any Healthcare Provider, or for any claims (malpractice or otherwise) that may arise directly or indirectly from any such advice, treatment or other services
1. DESCRIPTION OF PLATFORM
Through the Platform, Vitals offers information on physicians, psychologists, healthcare providers, healthcare facilities, long-term care facilities, hospitals, insurers and other providers of healthcare services and persons working on their behalves (collectively, the “Healthcare Providers”). Vitals organizes key information to help You make informed choices in Your search to independently assess particular Healthcare Providers. 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 and proprietary algorithms and processes, and finally arranged in a non-complicated, simple-to-use and easy-to-view arrangement.
The Platform is currently provided to You for free. However, we reserve the right to begin charging fees at any time upon notice to You.
3. CONTINUED USE DEEMED ACCEPTANCE
We reserve the right, at our sole discretion, to change, alter, amend or otherwise modify this Agreement from time to time. We will post any changes on this page (with the effective date of the update near the top of this page). We encourage You to check back and review this Agreement for any updates or modifications. After any such modification becomes effective, We will deem Your continued use of our Platform to constitute Your acceptance of and agreement to such modification.
Subject to the terms and conditions of this Agreement, You are granted a non-exclusive, non-transferable, personal, revocable license to (i) access and use the Platform 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. There are no implied licenses under this Agreement. 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.
a. You acknowledge and agree that by submitting remarks, emails, complaints, suggestions, improvements, ideas, graphics, feedback, edits, concepts,
With respect to Your Submissions, You represent, warrant and covenant that:
- Your Submissions will be true and accurate, will be Your original work of authorship, and that You are not impersonating any other person;
- If You are a Healthcare Provider submitting or editing any content, 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.
- If You are a person authorized by a Healthcare Provider to submit or edit content specifically related to that Healthcare Provider, 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.
- 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, information (including personally identifiable information), or materials of any kind that relates or refers to any other person or entity;
- 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, disparage or invade the privacy of any third party, (ii) are obscene or pornographic, (iii) are 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, (viii) are deemed confidential by any contract or policy, or (ix) promote violence, firearms, ammunition, or weapons.
VCS retains the right to review and delete or remove from public view on the Platform and delete from any other media or server where Your Submissions may be stored or displayed by or on behalf of VCS, any Submissions, which VCS in its sole discretion considers illegal, offensive, obscene, abusive, harassing, commercial in nature, infringing, inappropriate or otherwise violates the terms and conditions of this Agreement.
If notified of an allegation that the Platform contains infringing information, materials or other content, VCS may investigate the allegation and determine in VCS’ sole discretion whether to remove or request the removal of the same from the Platform and from any other media or server where the infringing content may be stored or displayed by VCS. Notices to VCS regarding any alleged copyright infringement should be sent to Vitals, c/o Vitals Consumer Services, Attn: Senior Vice-President, Legal and Compliance, 160 Chubb Avenue, Lyndhurst, NJ 07071 or to [email protected].
With respect to Your Reviews, You represent, warrant and covenant that:
- Your Review will be true and accurate, will be Your original work of authorship, only concern or relate to the care or service that You, Your minor child or Your ward received from the Healthcare Provider(s) being reviewed, that You are not related to or employed by the Healthcare Provider(s) being reviewed and that You are not impersonating any other person;
- You have the right to submit Your Reviews without violating the copyright, trademark, patent or other intellectual property rights of any person or entity, and the Reviews will not contain any content, personally identifiable information (other than the name of the Healthcare Provider(s) 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;
- Your Reviews 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 Reviews 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, (viii) are deemed confidential by any contract or policy, or (ix) promote violence, firearms, ammunition, or weapons.
VCS retains the right to review and delete or remove from public view on the Platform and delete from any other media or server where Your Reviews may be stored or displayed by or on behalf of VCS any Reviews, which VCS in its sole discretion considers illegal, offensive, obscene, abusive, harassing, commercial in nature, infringing, inappropriate or otherwise violates the terms and conditions of this Agreement.
6. USER ACCOUNTS, IDS AND PASSWORDS
Access to certain areas of the Platform, 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 an account via the Website and/or the App (individually and collectively, the “Vitals account”). You may need separate User IDs and passwords to register a Vitals account both on the Website and via the 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.
Your account is for Your personal, non-commercial use only. You may not impersonate someone else. 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 Your Vitals account regardless of whether or not You are the individual who undertakes such activities. This includes any unauthorized access and/or use of Your Vitals account, Your computer or Your mobile device. Accordingly, You release and hold harmless VCS Parties 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.
VCS reserves the right to deny or revoke Your access to the Platform, Your Vitals account, or any part thereof, or delete or change Your Vitals account password at any time in its sole discretion, with or without cause. Your access to the Platform will terminate upon the termination of this Agreement for any reason at the sole discretion of VCS. If You wish to cancel Your Vitals account password, or if You become aware of any loss, theft or unauthorized use of Your Vitals account password, please notify VCS immediately by sending an e-mail to [email protected] or writing to Vitals, c/o Vitals Consumer Services, Attention: Senior Vice-President, Legal and Compliance, 160 Chubb Avenue, Lyndhurst, NJ 07071.
7. WEBSITE MONITORING
VCS reserves the right to view, monitor, and record activity on the Platform without notice or permission to You. VCS may monitor or review any areas on the Platform 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 Agreement. However, VCS has no obligation to monitor, moderate or review any or all Submissions, or every posting or communication, and VCS disclaims any liability related to the content of any such postings and communications, whether or not arising under the laws of copyright, trademarks, libel, defamation, privacy, obscenity, or otherwise.
VCS is not responsible for screening, policing, editing or monitoring the Submissions and other third party statements posted or displayed on the Platform, including, without limitation, all third party advertising posted or displayed on the Platform. While VCS, from time to time and in its discretion, may monitor the content of the Submissions and other third party communications posted or displayed on the Platform, VCS does not endorse, support, sanction, encourage, verify, or necessarily agree with the Submissions and other comments, opinions, or statements posted on the Platform by Users and other third parties. Any information or material placed on the Platform 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 VCS. VCS reserves all of its rights to discontinue in its sole discretion the Products and Services provided on the Platform in general or to any User or Healthcare Provider at any time.
9. INTELLECTUAL PROPERTY
The Platform contains materials, such as software, data, text, graphics, images, and other materials provided by or on behalf of VCS (collectively referred to as the “Content”). All right, title and interest in and to the Content, including without limitation the graphical display and arrangement of the Platform and the Content, and all intellectual property rights embodied therein, are the property of VCS or its licensors or suppliers, including any of the Content that may be stored or displayed by VCS on other media or servers. The Platform 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 Agreement or by VCS’ express authorization. Requests for permission to reproduce any of the Content may be made by sending an e-mail to [email protected], or writing to Vitals, c/o Vitals Consumer Services, Attention: Senior Vice President, Legal and Compliance, 160 Chubb Avenue, Lyndhurst, NJ 07071.
VITALS, VITALSCHOICE, VITALS SMART SHOPPER, VITALS WHERE DOCTORS ARE EXAMINED, PATIENTS’ CHOICE, UCOMPAREHEALTHCARE, and MED HELP are all trademarks or service marks (individually and collectively, the “Vitals Marks”) owned by Vitals. 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 Vitals or their respective owners.
Except as provided in this Agreement, VCS 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 Agreement, without the prior written authorization of VCS or the respective owners of the Other Marks as the case may be. Requests to use the Vitals Marks or other Vitals Marks for purposes other than stated in this Agreement may be made by sending an e-mail to [email protected], or writing to Vitals Consumer Services, LLC c/o WebMD LLC, Office of Privacy, 1201 Peachtree Street NE, 400 Colony Square, Suite 2100, Atlanta, GA 30361.
We own and will continue to own all right, title, and interest in and to (i) the Platform, including, without limitation, all source code, object code, rating system, methodology, operating instructions, and interfaces developed for or relating to the Platform; (ii) all modifications, enhancements, revisions, changes, copies, partial copies, translations, compilations, improvements, and derivative works of the foregoing, and all intellectual property rights therein; and (iii) any Content. Except as expressly permitted in this Agreement, You have no rights in or to any of the foregoing.
10. USE OF THE PLATFORM
- Without limiting anything else contained in this Agreement, You agree and acknowledge that:
- The Content, Submissions, databases used to store the Content (“Databases”), Submissions, Products and Services and any other information contained therein are valuable intellectual property owned by or licensed to VCS, and that no proprietary rights therein are being transferred to You by this Agreement.
- You will not, directly or indirectly:
- 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 and scheduling of appointments with Healthcare Providers,
- 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,
- 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,
- Use the Content, Submissions, Databases, Products and Services and any other information contained therein in violation of any applicable laws or regulations,
- 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,
- Attempt to access or access any other User’s account,
- Attempt to obtain or ascertain or obtain or ascertain any other User’s user name, password and/or personal information by any means whatsoever,
- Attempt to elude or elude Vitals’ security systems,
- Attempt to gain access or gain access to the Platform in an unauthorized or fraudulent manner,
- Write a fake review, trade reviews with other businesses, compensate someone or receive remuneration for writing a review,
- Attempt to manipulate the search results on the Platform,
- Use any robot, spider, site search/retrieval application, or other automated device, process or means to access, scrape, or index any portion of the Platform or any Content,
- Take any action that imposes, or may impose, in VCS’ sole discretion, an unreasonable or disproportionately large load on Our technology infrastructure or otherwise make excessive traffic demands on the Platform,
- Remove, circumvent, disable, damage, or otherwise interfere with any security-related features of the Platform, features that prevent or restrict the use or copying of the Content, or features that enforce limitations on the use of the Platform,
- Use any tools or software to mask, hide or distort the internet protocol address from which You are accessing the Platform,
- Use the Platform for any purposes other than those intended by VCS, as determined by VCS in its sole discretion, or
- 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.
- 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 VCS and that in such event money damages will not constitute sufficient compensation to VCS; 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 VCS obtaining injunctive relief against You in addition to any other legal or financial remedies to which VCS may be entitled.
VCS reserves the right to modify and/or discontinue the Platform at any time, for any reason and without notice, and to terminate Your Vitals’ account should You be in violation of this Agreement, including, but not limited to, the provisions of this section entitled “Use of the Platform”.
11. NOTICE OF ENFORCEMENT
VCS vigorously enforces its intellectual property rights to the fullest extent of the law. Accordingly, VCS 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, privacy and publicity.
12. EXTERNAL LINKS
VCS 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 VCS shall not be liable for any damages or injury resulting or arising from the content of or access to such other websites and applications. VCS 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 our Platform. Unless approved in writing in advance by VCS, You agree not to: (i) provide or create a link to our Platform, or (ii) create any frames at any other websites or mobile applications pertaining to any of the Content located on our Platform.
NONE OF VCS, ITS AFFILIATES, SUBSIDIARIES, OR ITS OR THEIR OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AGENTS, CONTENT PROVIDERS, CUSTOMERS OR SUPPLIERS (COLLECTIVELY, THE “VCS PARTIES”) ENDORSE ANY USER, HEALTHCARE PROVIDER OR ANY SUBMISSION POSTED BY ANY USER OR HEALTHCARE PROVIDER (INCLUDING, WITHOUT LIMITATION, ANY OPINION, RECOMMENDATION OR ADVISE EXPRESSED BY ANY USER OR HEALTHCARE PROVIDER).
YOU AGREE THAT YOUR USE OF THE PLATFORM AND THE CONTENT IS ENTIRELY AT YOUR OWN RISK. THE PLATFORM, AND THE CONTENT MAY INCLUDE TECHNICAL INACCURACIES AND/OR TYPOGRAPHICAL ERRORS. WE MAY MAKE CHANGES OR IMPROVEMENTS THERETO AT ANY TIME WITHOUT NOTICE. THE PLATFORM, AND ALL CONTENT, FUNCTIONS, AND MATERIALS MADE AVAILABLE TO YOU THROUGH THE PLATFORM ARE PROVIDED “AS IS”, “WITH ALL FAULTS” AND WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND EITHER EXPRESSED OR IMPLIED. VCS PARTIES DISCLAIM, TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, ALL WARRANTIES 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 WEBSITE, THE CONTENT, OR ANY PRODUCTS, SERVICES OR RESULTS OBTAINED ON OR THROUGH THE PLATFORM.
SOME OF THE CONTENT, INCLUDING BUT NOT LIMITED TO HEALTHCARE PROVIDER INFORMATION, DATA, RESEARCH, ANALYSIS, REVIEWS AND RATINGS ARE PROVIDED BY THIRD PARTY INFORMATION PROVIDERS. NONE OF THE VCS PARTIES MAKE ANY REPRESENTATION WITH RESPECT TO, OR GUARANTY OR ENDORSE THE AVAILABILITY, ACCURACY, RELIABILITY, COMPLETENESS, CURRENCY, QUALITY, PERFORMANCE OR SUITABILITY OF ANY INFORMATION, MATERIALS OR OTHER DATA PROVIDED BY ANY SUCH THIRD PARTY INFORMATION PROVIDERS.
VCS PARTIES DOES NOT REPRESENT OR WARRANT THE AVAILABILITY OF OR YOUR ACCESS TO THE PLATFORM, THAT THE PLATFORM AND YOUR USE OF THE PLATFORM WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE PLATFORM OR THE SERVER OR CODE THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. NONE OF THE VCS PARTIES WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OF OR THE RESULT OF THE USE OF THE PLATFORM AND/OR THE CONTENT IN TERMS OF THEIR CORRECTNESS, ACCURACY, TIMELINESS, RELIABILITY, APPLICABILITY OR OTHERWISE. YOU (AND NOT VCS) 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.
NONE OF THE VCS PARTIES MAKE ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, THAT THE PLATFORM OR ANY OF THE CONTENT WILL ASSIST YOU IN IDENTIFYING A SUITABLE HEALTHCARE PROVIDER OR FOR ANY OTHER PURPOSE. VCS PARTIES DISCLAIM 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 THE PLATFORM, 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.
14. LIMITATIONS ON LIABILITY
YOUR SOLE AND EXCLUSIVE RIGHT AND REMEDY IN CASE OF DISSATISFACTION WITH THE PLATFORM, THE PRODUCTS OR SERVICES SHALL BE YOUR TERMINATION AND DISCONTINUATION OF ACCESS TO, OR USE OF THE SAME. NONE OF THE VCS PARTIES WILL BE LIABLE FOR ANY DAMAGES OR INJURY FOR BREACH OF WARRANTY, BREACH OF CONTRACT, OR TORT (WHERE NEGLIGENCE IS THE STANDARD OF CULPABILITY) CAUSED BY YOUR USE OF THE PLATFORM, OR THE CONTENT OR THE PRODUCTS AND SERVICES MADE AVAILABLE TO YOU THROUGH THE PLATFORM, INCLUDING BUT NOT LIMITED TO, ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DEFECT, DELAY IN OPERATION OF TRANSMISSION, COMPUTER VIRUS, OR LINE FAILURE. NONE OF THE VCS PARTIES WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES THAT RESULT FROM THE USE OF, THE INABILITY TO USE, OR RELIANCE UPON, THE PLATFORM, AND THE CONTENT OR ANY PRODUCTS OR SERVICES OBTAINED ON OR THROUGH THE PLATFORM, EVEN IF A VCS PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE TOTAL CUMULATIVE LIABILITY OF THE VCS PARTIES TO YOU FOR DIRECT DAMAGES ARISING UNDER THIS AGREEMENT OR RELATING THERETO, EXCEED, ONE HUNDRED DOLLARS ($100). BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR NEGLIGENCE, CONSEQUENTIAL, INCIDENTAL OR OTHER DAMAGES, IN SUCH JURISDICTIONS THE VCS PARTIES’ LIABILITY IS LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW. THIS LIMITATION IS ENFORCABLE IN NEW JERSEY.
YOU AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS THE VCS PARTIES 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:
- YOUR MISUSE OF THE PLATFORM (INCLUDING YOUR DOWNLOAD OR INSTALLATION OF THE APP) AND ANY MISUSE OF THE CONTENT, OR ANY PRODUCTS OR SERVICES OBTAINED ON OR THROUGH THE PLATFORM,
- ANY PRODUCTS OR SERVICES YOU OBTAIN FROM THIRD PARTIES BASED, IN WHOLE OR IN PART, ON THE CONTENT AND OTHER INFORMATION VIEWED OR OBTAINED ON, FROM OR THROUGH THE PLATFORM,
- ANY BREACH BY YOU OF THIS AGREEMENT,
- ANY SUBMISSIONS YOU MAKE OR POST ON THE PLATFORM, AND
- ANY INFRINGEMENT OF THIRD PARTIES’ INTELLECTUAL PROPERTY RIGHTS OR ANY OTHER NEGLIGENT, ILLEGAL OR WRONGFUL CONDUCT BY YOU OR ANY OTHER PERSON ACCESSING THE PLATFORM USING YOUR VITALS ACCOUNT, YOUR COMPUTER OR YOUR MOBILE DEVICE.
16. RELEASE FOR EVENTS BEYOND OUR CONTROL
You absolve and release the VCS Parties from any claim of harm resulting from any cause(s) over which VCS Parties do not have 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.
17. TERM AND TERMINATION
This Agreement will take effect at the earlier of the time You click “I Agree” to this Agreement or that You access, browse or use the Platform or any of the Content, and continues in perpetuity unless terminated by You in accordance with this provision and/or by VCS. VCS reserves the right, at any time and for any reason, without notice to You, (i) to deny You access to the Platform and any of the Content, (ii) to change, remove or discontinue any of the Content or services available on or through the Platform, or (iii) to terminate this Agreement.
The warranty disclaimers, limitations and exclusions of liability, reservation and grant of property rights and other terms and conditions of this Agreement which by their nature are intended to survive and will survive the termination or expiration of this Agreement for any reason.
Any notice or other document or communication required or permitted hereunder to VCS will be deemed to have been duly given only if in writing and delivered by any of the following methods:
- Certified U.S. mail, return receipt requested, postage prepaid, to Vitals Consumer Services, LLC c/o WebMD LLC, Office of Privacy, 1201 Peachtree Street NE, 400 Colony Square, Suite 2100, Atlanta, GA 30361; or
- Email sent to [email protected].
Notices to VCS shall be deemed delivered when actually received by VCS.
Any notice or other document or communication from VCS 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 VCS, You represent and warrant to VCS that Your e-mail service has appropriate and adequate security systems necessary to prevent unauthorized access to outbound or inbound e-mail transmissions.
19. JURISDICTION; COMPLIANCE WITH LAWS
Except as set forth otherwise herein, VCS controls and operates the Platform from the United States of America and makes no representation that the Platform, the Content or the Products and Services made available to You through the Platform is appropriate or available for use outside the United States of America. 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 the Platform, the Content and this 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 WEBSITE OR THE APP SHALL BE INSTITUTED ONLY IN A STATE OR FEDERAL COURT LOCATED IN THE STATE OF NEW JERSEY, U.S.A., AND YOU AND VCS AGREE TO SUBMIT TO THE JURISDICTION OF, AND AGREE THAT VENUE IS PROPER IN, THESE COURTS IN ANY SUCH LEGAL ACTION OR PROCEEDING.
20. ARBITRATION AND CLASS ACTION WAIVER
Any controversy or dispute between You and VCS (the “parties”) concerning the Platform, the Content, this Agreement and/or all matters or issues collateral thereto (each, a “Dispute”) shall be submitted to final and binding arbitration as the sole and exclusive remedy for such Dispute. Neither of the parties shall have the right to litigate any claim in court or to have the claim decided by a judge or jury. Discovery rights, such as each party’s rights to the exchange of prehearing information or prehearing taking of sworn testimony may also be limited in arbitration. 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 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.
You agree that any arbitration or proceeding shall be limited to the Dispute between VCS and You individually. To the full extent permitted by law, (i) no arbitration or proceeding shall be joined with any other; (ii) there is no right or authority for any Dispute to be arbitrated or resolved on a class action-basis or to utilize class action procedures; and (iii) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons. YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST US ONLY IN YOUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
No delay or omission by VCS to exercise any right occurring upon any noncompliance on Your part with respect to any of the terms of this Agreement will impair any such right or power or be construed to be a waiver thereof. Any waiver by VCS 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.
If any portion of this 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.
23. INDEPENDENT CONTRACTOR
VCS is an independent contractor; nothing in this Agreement shall be construed to create a partnership, joint venture, or agency relationship between You and VCS.
24. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between You and VCS with respect to Your use of the Platform, the Content and the Products and Services, and supersedes any and all prior understandings or agreements between You and VCS, whether written or oral. You acknowledge that, in providing You access to and use of the Platform, the Content and the Products and Services, VCS has relied on Your acceptance of this Agreement. Failure to insist on strict performance of any provisions of this Agreement will not constitute a waiver of any breach or failure of performance.