TERMS OF SERVICE
Updated: September 23, 2019
Welcome to Vitals Aware Services, Inc. (“Vitals”). By using the Vitals mobile application (“VITALS APP”), and its related internet-based services (including subscription services), websites, and software (collectively, the “Service”), you agree to be bound by these terms and conditions (“Terms“). We may make changes to the Service and the Terms. It is your responsibility to review the Terms for updates or changes. If you do not agree with the Terms, you should not use the Service.
You may not access the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.
1. The Service.
These Terms govern and describe the Service we will provide you under the VITALS APP and associated Service. We will provide the Service to the person who downloaded the VITALS APP and registered as the caregiver (the “User”). The words “we”, “us”, “our”, “Vitals” and “Vitals Aware Services” refer to Vitals Aware Services, Inc., its affiliates and its or their employees or third-party service providers. “You” or “your” refers to the User.
This is a legal agreement and by using the Service you are agreeing to these Terms. The following items are just some of the provisions described within these Terms. If you do not agree, you should not use the Service:
- The Service has critical limitations and is not appropriate for critical uses and life safety applications
- You are consenting to the use of arbitration to resolve disputes rather than jury trials or class actions
- You are consenting to automatic software updates of both the VITALS APP and any related internet-based services
2. What is Included in the Service?
The Service primarily consists of the VITALS APP and/or a web interface to view and update profile information (a “Vitals Profile”) and view a vulnerable individual’s activity. The VITALS APP allows caregivers to create and manage a Vitals Profile that contains information about a vulnerable person’s conditions, medications, triggers, de-escalation techniques, video or images they respond to, medical information and caregiver contact information. Each active Vitals Profile is assigned to a Vitals beacon, which is carried with the vulnerable person via a Vitals card, button or phone. Caregivers are able to set up multiple profiles when multiple vulnerable persons are being cared for. The Service consists of a free service and one or more paid premium subscription services.
3. What is Not Included?
The Service does not include, among other things, the following: (a) installation and setup of the VITALS APP (the VITALS APP is designed to be installed and setup by the User); (b) the Vitals First Responder App (i.e., the App available to authorized police and first responders that receives an alert and access to any Vitals Profile when the responder is within 80 feet of a Vitals Beacon); (c) training or education; or (d) internet service to the User’s premises or services relating to resolution of issues arising from the internet service provider, or any home network support. You are responsible for all third-party products and services that are not included as part of the Service.
4. Obtaining, Modifying and Terminating the Service and an Account.
- As a condition to membership in this Service, the User must establish and/or maintain Vitals account login credentials.
You are responsible for maintaining the confidentiality of your account login credentials and for all activities that occur under your account. You agree to immediately notify us of any unauthorized use, or suspected unauthorized use, of your account or any other breach of security. You agree to not share your account credentials with others. You may use the Service only for lawful purposes. We are not liable for any loss or damage arising from your failure to comply with the above requirements.
- Modification. We reserve the right, at any time, to modify, suspend, or discontinue all or part of the Service with or without notice. You agree that we will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Service or any part thereof.
- Term. These Terms, as may be modified by us from time to time upon written notice to you, will remain in full force and effect so long as you continue to access or use the Service, or until terminated in accordance with the provisions of these Terms (the “Service Term”).
- Termination. At any time, we may terminate the Service if we in good faith believe that you have used the Service in violation of these Terms.
- No Service Transfer. You are prohibited from transferring the Service to a new user under your account. A new user will need to register for a separate account with us and re-register any Vitals Profiles.
5. Access to and Use of the Service.
- Rights. Subject to these Terms, we grant you a non-transferable, non-sub licensable, non-exclusive right to access and use the Service during the Service Term by (i) installing and using the VITALS APP on your mobile device, or (ii) using the internet-based services associated with the VITALS APP. You agree that your agreement hereunder is neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by us regarding future functionality or features.
- Your Responsibilities. You agree that any updates and additional features of the Service shall be subject to these Terms. You shall (i) be responsible for compliance with these Terms for any person accessing your account, (ii) be responsible for the accuracy, quality and legality of User Content (defined below) and of the means by which you acquired your content, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Service, and notify us promptly of any such unauthorized access or use, and (iv) use the Service only in accordance with applicable laws and government regulations.
- Restrictions. You shall not (a) make the Service available to anyone other than the User, (b) sell, resell, rent or lease the Service or the Content (defined below) (c) use the Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use the Service to store or transmit malicious code, (e) interfere with or disrupt the integrity or performance of the Service or third-party data contained therein, or (f) attempt to gain unauthorized access to the Service or its related systems or networks. Additionally, you shall not (i) modify, copy or create derivate works based on the Service or the Content, (ii) copy, frame or mirror any part or content of the Service, other than copying or framing on your own intranets or otherwise for your own purposes, (iii) reverse engineer the Service, or (iv) access the Service in order to (a) build a competitive product or service, (b) build a product or service using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Service.
- Images, Video and Audio. You give us the right, without any compensation or obligation to you, to access and use your images, video and audio recordings for the limited purposes of providing the Service, protecting the vulnerable person, improving our products and services, and developing new products and services.
- Automatic Software Updates. In most cases, we will release new upgraded versions of the VITALS APP and you will choose to upgrade or not. In certain cases, we may have a forced upgrade that requires you to download the new version and the previous versions will no longer be supported. For updates to backend systems associated with the VITALS APP, you consent to us automatically providing updates to the software included within the Service. These updates may be installed without providing any additional notice. Your continued use of the Service following updates is your agreement to these Terms.
- Notifications. We may provide notifications to the User as required by law or for marketing or other purposes via email, hard copy, or posting of such notice within the VITALS APP or on our website.
6. Service Plans.
- The functionality offered through the Service will be offered through purchased or free service plans (“Service Plans“) with different features, time periods and fees. Information and fees regarding Service Plans will be provided at the time of installation and through materials posted on our web pages. Taxes may apply. We reserve the right to change, cancel, or add Service Plans at any time. We sometimes offer certain customers various promotional plans, which are subject to these Terms, except as otherwise stated in the promotional offers.
The Service Plan begins on the date it is initially purchased and ends as explained below depending on what type of Service Plan was purchased (the “Service Period”). The User’s payment receipt or the email we will send to him/her confirming purchase will identify which type of plan was purchased.
1. Fees and Pricing. Premium Service Plans are structured as time-based subscription agreements where fees are charged on the first day of the applicable subscription period and then monthly or annually thereafter. If any credit card transaction is declined, we reserve the right to cancel your Service Plan and collect any applicable transaction fee and to process any such payment by the payment method you have submitted to us.
2. Changes to Service Plan. Prices for our Service Plans are subject to change at any time. If you are in an active Service Plan, we reserve the right to change these Terms or the price of the Service Plan at any time upon 30 days’ notice to you. After receiving this notice, you will be deemed to have accepted the change in pricing, unless you cancel your Service Plan as set forth below.
3. Renewal of Subscription. When you purchase any of our Premium Service Plans, you expressly acknowledge and agree that (1) we are authorized to charge you a monthly or annual subscription service fee (in addition to any applicable taxes) for as long as your subscription continues, and (2) your subscription is continuous until you cancel it, or such Premium Service Plan is terminated because your credit card was declined. YOUR CONTINUOUS MONTHLY OR ANNUAL PREMIUM SERVICE PLAN WILL CONTINUE INDEFINITELY ON A MONTH-TO-MONTH OR YEAR-TO-YEAR BASIS, UNTIL CANCELLED OR NOT RENEWED BY YOU OR US IN ACCORDANCE WITH THESE TERMS. At our discretion, we may discontinue the renewal of your Premium Service Plans on at least 30 days’ prior written notice or offer you a new service contract.
4. Cancellations by You. You may cancel your Premium Service Plan at any time from within the Subscription settings on your device. The User may also cancel the Premium Service Plan at any time by calling 1-612-599-7595. Upon cancellation, your monthly or annual subscription will be canceled at the end of the current billing cycle and there will be no refunds.
5. Cancellation or Suspension of Service by Us. The Service Plan you purchased may be cancelled by us due to the failure to comply with or fulfill any material obligation under these Terms, your fraud or material misrepresentation, or your nonpayment of the monthly fee (“Non-Payment Event“). If a Non-Payment Event occurs, we will provide the User written notice (e.g., email) of the Non-Payment Event. If you do not cure the Non-Payment Event within 30 days after delivery of our notice of such Non-Payment Event, your Service Plan will be cancelled retroactively to midnight on the last day of the month for which you made the last monthly payment. We also may suspend performance of our obligations while a Non-Payment Event exists or any other situation where you failed to pay us an amount that is due or where you failed to comply with or fulfill any other material obligation under these Terms.
6. Billing Errors. If we charge less than the correct amount on a transaction, we have the right for thirty (30) days after the original transaction date, to complete subsequent transaction attempts in order to rectify the incorrect payment. Should this occur, you have the right to reject such charge and cancel your original transaction for a full refund in accordance with our Cancellation Policy (defined above).
7. Disclosure to Law Enforcement. You acknowledge and agree that we may access, use, preserve and/or disclose your Vitals Profiles to law enforcement authorities, government officials, and/or third parties, if legally required to do so or if we have a good faith belief that such access, use, preservation or disclosure is reasonably necessary to: (a) comply with legal process or request; (b) enforce these Terms, including investigation of any potential violation thereof; (c) detect, prevent or otherwise address security, fraud or technical issues; or (d) protect the rights, property or safety of Vitals, its users, a third party, or the public as required or permitted by law. We also reserve the right, but shall not be obligated, to remove any User Content from our servers at any time in our sole and absolute discretion.
7. Proprietary Rights.
a. The Service is licensed to you, not sold, under these Terms. You acknowledge that all intellectual property rights contained in the Service are owned by us or our affiliates or our licensors. Your possession, access, and use of the Service do not transfer to you or any third party any rights, title, or interest in or to such intellectual property rights. We and our affiliates and licensors and suppliers reserve all rights not expressly granted in these Terms.
b. All content included on or comprising the Service, including information, data, software, photographs, graphs, videos, typefaces, graphics, music, sounds and other material (collectively “Content“) is protected by copyright, trademark, patent or other proprietary rights, and these rights are valid and protected in all forms, media and technologies existing now or developed in the future. All Content is protected as a collective work under U.S. and international copyright laws, and we own, to the fullest extent allowed by such laws, the copyright in the selection, coordination, arrangement, and enhancement of all Content. You shall abide by all copyright notices, trademark rules, information, and restrictions contained in any Content accessed through the Service, and shall not use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell or otherwise exploit for any purposes whatsoever any Content or third party submissions or other proprietary rights not owned by you: (i) without the express prior written consent of the respective owners, and (ii) in any way that violates any third party right. You may not remove or modify any copyright, trademark or other proprietary notice contained in any Content. The Vitals’ logos and other trademarks on the Service are the property of their respective owners and are owned by, licensed to, or, where required, used with permission by Vitals and may not be reproduced, copied, or manipulated in any manner without the express, written approval of the trademark owner.
c. We shall have, and you agree to grant and do hereby grant to us, a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Service any suggestions, enhancement requests, recommendations or other feedback provided by you relating to the functionality and operation of the Service.
8. Open Source Software.
Certain items of software included with the Service are subject to open source licenses (“Open Source Software”). Some of the Open Source Software is owned by third parties. Each item of Open Source Software is licensed under the end user license that accompanies such Open Source Software and is not subject to the terms and conditions of these Terms. Nothing in these Terms limits your rights under, or grants you rights that supersede, the terms and conditions of any applicable end user license for the Open Source Software. If required by any license for particular Open Source Software, we will make such Open Source Software, and our modifications to that Open Source Software, available by calling us at 1-612-599-7595
9. User Content.
- You are solely responsible for all content (including, without limitation, video, images, and audio) that you upload, post, email, transmit, or otherwise disseminate using, or in connection with, the Service, or that you contribute in any manner to the Service (“User Content”); you represent and warrant that you have all rights necessary to do so, in the manner in which you contribute it; and you license to us all proprietary rights in and to such User Content for publication on the Service pursuant to these Terms.
- We reserve the right to remove any User Content from the Service at any time, for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such User Content or if we are concerned that you may have breached the immediately preceding sentence), or for no reason at all.
- You acknowledge that all Content and User Content accessed by you using the Service is at your own risk and you will be solely responsible for any damage or loss to any party resulting therefrom.
10. Limitations of Service and Intended Use.
- You are responsible for providing a mobile device capable of installing and operating the VITALS APP for the Service to operate.
- YOU AGREE THAT YOU WILL NOT RELY ON THE SERVICE FOR ANY LIFE SAFETY OR CRITICAL PURPOSES. You acknowledge and agree that the Service is not certified for emergency response. We make no warranty or representation that use of the Service will affect or increase any level of safety. We do not guarantee that the Service, including any notifications or alerts, are accurate, reliable, always available, timely, or complete. The Service is provided for informational purposes only. You agree that Vitals is not responsible for any damages caused by the failure or delay of the Service, regardless of whether such failure or delay is within our control. All life safety and emergency events should be directed to the appropriate response services.
- The Service may be suspended temporarily without notice for security reasons, system failure, maintenance and repair, or other circumstances. You agree that you will not be entitled to any refund or rebate for such suspensions.
- You warrant, represent and agree that you will not contribute any User Content or otherwise use the Service in a manner that (i) infringes or violates the intellectual property rights or proprietary rights, rights of publicity or privacy, or other rights of any third party; (ii) violates any law, statute, ordinance or regulation; or (iii) is harmful, fraudulent, deceptive, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, or otherwise objectionable.
11. Notification of Copyright Infringement Under the Digital Millennium Copyright Act (DMCA).
If you believe that your copyrighted material may have been infringed, please provide our Copyright Agent with the following information in writing:
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed
- Identification of the copyrighted work claimed to have been infringed, or if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material
- Information reasonably sufficient to permit us to contact you, such as an address, telephone number, and if available, your e-mail address
- A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law
- A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed
Our designated agent to receive notifications of claimed infringement can be reached by:
Mail: DMCA Agent, Vitals Aware Services, Inc., Legal Dept., 16110 Crosby Cove, Suite 201, Wayzata, MN 55391.
For additional information regarding this procedure, please reference 17 USC 512.
12. Data Collection and Privacy.
- Data protection and privacy laws where you live may impose certain responsibilities on you and your use of the Service. You agree that you are responsible for ensuring that you comply with any applicable laws when you use the Service.
13. DISCLAIMER OF WARRANTIES; SUBROGATION WAIVER.
THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. WE MAKE NO WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WE MAKE NO WARRANTY THAT THE SERVICE WILL MEET YOUR REQUIREMENTS, OR THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE; NOR DO WE MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE OR AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE SERVICE. YOUR USE OF THE SERVICE AND ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR MOBILE DEVICE/HOME NETWORK/COMPUTER/SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR DATA. WE DO NOT REPRESENT OR WARRANT THAT THE SERVICE WILL ALWAYS OPERATE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. YOU WAIVE ALL SUBROGATION AND OTHER RIGHTS OF RECOVERY AGAINST US THAT ANY INSURER OR OTHER PERSON MAY HAVE. YOU AGREE THIS SUBROGATION WAIVER IS NOT AN EXCULPATORY PROVISION BUT INSTEAD A RISK-SHIFTING PROVISION.
14. LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY LAW:
- WE WILL UNDER NO CIRCUMSTANCES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO COSTS OF RECOVERING, OR REPRODUCING ANY DATA OR THE FAILURE TO MAINTAIN THE CONFIDENTIALITY OF DATA, ANY LOSS OF BUSINESS, PROFITS, REVENUE OR ANTICIPATED SAVINGS, RESULTING FROM OUR OBLIGATIONS UNDER THESE TERMS; AND
- OUR TOTAL LIABILITY UNDER THESE TERMS SHALL NOT EXCEED THE ORIGINAL PURCHASE PRICE OF THE APPLICABLE SERVICE PLAN, IF ANY, INCLUDING TAXES.
THE LIMITATIONS IN THIS SECTION WILL NOT LIMIT OR EXCLUDE LIABILITY CAUSED BY OUR GROSS NEGLIGENCE, INTENTIONAL MISCONDUCT OR FRAUD.
15. Dispute Resolution.
You and Vitals each agree that, except as otherwise noted below, any dispute or claim arising out of or relating in any way to these Terms, or to any services provided by Vitals, including, but not limited to, the advertising of or sales practices relating to such services, delivery, installation, and any communication, by whatever means, between you and Vitals, will be resolved by binding, individual arbitration, rather than in court. Disputes and claims that are within the scope of a small claims court’s authority are exempt from this dispute resolution provision, so long as they are brought individually.
BY AGREEING TO ARBITRATION, YOU AND VITALS UNDERSTAND THAT EACH IS AGREEING TO WAIVE ITS RIGHT TO SUE OR GO TO COURT TO ASSERT OR DEFEND ITS RIGHTS UNDER THIS CONTRACT. THE RULES IN ARBITRATION ARE DIFFERENT. THERE IS NO JUDGE OR JURY. ALTHOUGH REVIEW IS LIMITED, AN ARBITRATOR CAN AWARD ON AN INDIVIDUAL BASIS THE SAME DAMAGES AND RELIEF AS WOULD BE AVAILABLE IN COURT, AND MUST ENFORCE THE SAME LIMITATIONS STATED IN THESE TERMS AS A COURT WOULD.
To begin an arbitration proceeding, you must send a demand to the American Arbitration Association (AAA) describing your claim and serve a copy of the demand on our registered agent, Cogency Global Inc., 850 New Burton Road, Suite 201, Dover, county of Kent, Delaware 19904. The arbitration will be conducted by the AAA under its rules. The AAA’s rules and the form for filing an arbitration claim are available at www.adr.org. Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the county where you live or at another mutually agreed upon location.
We each agree that any dispute resolution proceedings of any nature or in any forum will be conducted only on an individual basis and not in a class, consolidated or representative action. This means that you may not purport to act on behalf of a class or any other person. Likewise, an arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of a representative or class proceeding. Any claim that all or part of this class action waiver provision is invalid or unenforceable may be determined only by a court and not by an arbitrator. If a court decides that the limitations of this paragraph are deemed invalid or unenforceable, any putative class or representative action must be brought in a court of proper jurisdiction and not in arbitration. If for any reason a claim proceeds in court rather than in arbitration, we each waive any right to a jury trial, unless such waiver is unenforceable. This means that any claim would be decided by a judge, not a jury.
THE FEDERAL ARBITRATION ACT AND APPLICABLE FEDERAL LAW (OR IN THE ABSENCE OF APPLICABLE FEDERAL LAW, THEN THE LAWS OF THE STATE OF MINNESOTA), WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS, WILL GOVERN THESE TERMS AND APPLY TO ANY DISPUTES OR CLAIMS BETWEEN YOU AND VITALS.
17. Electronic Delivery; Notices.
You agree to receive electronic delivery of the Terms, which shall be deemed to have been delivered to you, (a) when you use the VITALS APP by their availability via a link in the mobile application, and (b) when you purchase a Service Plan by its availability at thevitalsapp.com. Further, you also agree that we may send you any notice contemplated under the Plan by email to the email address you have provided to us or to the postal address we have on file for you or via messaging within the VITALS APP.
18. Entire Agreement.
These Terms constitute the entire agreement between you and us with respect to the services and benefits provided to you under the Service and will prevail over any conflicting, additional, or other terms of any marketing collateral or other document or expression. Employees and agents of Vitals have NO AUTHORITY (apparent, express, implied, or otherwise) to alter or modify the terms and conditions of the Service – either orally or in writing