Vitalant (“Vitalant,” “we,” “our,” or “us”) makes its services, mobile applications and/or extensions, and application programming interfaces (collectively, herein the “Services”) available to you (“you,” or “your”) for your use subject to the terms and conditions in these Terms of Service (the “Agreement”).
By accessing or using the Services in any way, you agree to be bound by this Agreement. If you are using this Service on behalf of an organization you work for, you agree that your use is as permitted by that organization. If you do not accept any of the terms of this Agreement and/or you do not meet or comply with its provisions, you may not use the Services. The disclaimers, terms, and conditions in this Agreement are of general application and may be supplemented by additional policies, procedures, disclaimers, guidelines, rules, terms, and conditions of specific application that we disclose.
IMPORTANT NOTICE: Your use of the Services is subject to an arbitration provision in Section 8 of this Agreement, requiring all claims to be resolved by way of binding arbitration. Please carefully review Section 8 of this Agreement for more information.
Vitalant’s Rights in and to Vitalant Materials
Our Services, our systems, and any and all other information, data, documents, materials, works and other content, devices, methods, processes, hardware, software and other technologies and inventions, including any technical or functional descriptions, requirements, plans, specifications, or reports, that are provided or used by Vitalant or any subcontractor engaged by Vitalant in connection with the Services or otherwise comprise or relate to the Services, the designs of each of the foregoing, and any and all intellectual property rights in the foregoing (collectively, the “Vitalant Materials”) shall at all times remain the exclusive property of Vitalant and its third-party licensors.
Grant of License
On the condition that you comply with all your obligations under this Agreement, and subject to additional terms of any third-party licenses applicable to third-party software included in the Services, we hereby grant to you a limited, revocable, non-exclusive, non-transferable, right to access and use the Services solely for your own personal purposes or the purposes of the organization you work for (as approved by your organization and Vitalant and in accordance with these Terms of Service). We reserve all rights not otherwise expressly granted by this Agreement. If you do not comply with this Agreement, we reserve the right to revoke any license granted in this Agreement and limit your access to the Services. Any use of the Services that exceeds the rights expressly granted in this Agreement is strictly prohibited and constitutes a violation of this Agreement, which may result in the termination of your right to access and use the Services. You are not acquiring any rights in or to the Vitalant Materials other than a non-exclusive right to access and use the Services solely in accordance with the terms of this Agreement.
We may discontinue or alter any aspect of the Services, restrict the time the Services are available, and restrict the amount of use permitted at our sole discretion and without prior notice or liability to you. We may also install bug fixes, updates, patches, and other upgrades to the Services without prior notice or liability to you. Your only remedy is to discontinue using the Services if you do not want a modification we make to the Services.
Removal of Access
Your access to the Services is provided on a temporary basis with no guarantee for future availability. You agree that we may immediately suspend or terminate your access to the Services or any part thereof. Cause for such measures include, without limitation: (1) breach or violation of this Agreement or other incorporated agreements or guidelines; (2) discontinuance or material modification to the Services; (3) unexpected technical or security issues or problems; (4) extended periods of inactivity; or (5) your engagement in fraudulent or illegal activities. You further agree that such measures may be taken in our sole discretion and without liability to you or any third party.
Defects and Availability
We use commercially reasonable efforts to maintain the Services, but we are not responsible for any defects or failures associated with the Services, any part thereof, any Feedback you provide, or any damages (such as lost profits or any other consequential or indirect damages) that may result from any such defects or failures. The Services may be inaccessible or inoperable for any reason, including, without limitation: (1) equipment malfunctions; (2) periodic maintenance procedures or repairs which we may undertake from time to time; or (3) causes beyond our reasonable control or which we could not reasonably foresee. You understand that the Services are provided over the internet, so the quality and availability of the Services may be affected by factors outside of our control. The Services are not intended to be available 100% of the time, and we do not make any representations, warranties, or guarantees regarding the reliability or availability of the Services. We do not represent, warrant, or guarantee that the Services will always be completely free of human or technological errors. We will not be liable to you or any third party for damages or losses related to the Services being unavailable.
You may not: (1) license, sublicense, sell, resell, transfer, assign, distribute, or otherwise commercially exploit or make available to any third party any portion of the Services in any way; (2) copy, modify, adapt, alter, translate, create derivative works, reverse engineer, decompile, disassemble, or otherwise attempt to learn the source code, structure, or ideas upon which the Services are based; (3) use the Services or Vitalant Content (defined below) to develop a competing service or product; (4) use any device, software, or routine intended to damage or otherwise interfere with the proper functioning of the Services, servers, or networks connected to the Services or take any other action that interferes with any other person’s use of the Services; (5) decrypt, transfer, create internet links to the Services, or “frame” or “mirror” the Services on any other server or wireless or internet-based device; (6) use or merge the Services or any component thereof with other software, databases, or services not provided or approved by us; (7) analyze, disable, circumvent, or attempt to circumvent any electronic protection measures in place to regulate or control access to the Services; (8) use the Services for unlawful purposes; (9) develop, distribute, or sell any software or other functionality capable of launching, being launched from, or otherwise integrated with the Services; (10) use any bot, spider, or other automatic or manual device or process for the purpose of harvesting or compiling information on the Services for any reason; (11) access or attempt to access any other user’s account; (12) use any Vitalant Content made available through the Services in any manner that misappropriates any trade secret or infringes any copyright, trademark, patent, rights of publicity, or other proprietary right of any party; (13) introduce into the Services any virus, rogue program, Trojan horse, worm or other malicious or intentionally destructive code, software routines, or equipment components designed to permit unauthorized access to or disable, erase, or otherwise harm the Services, or perform any such actions; (14) introduce into the Services any back door, time bomb, drop dead device, or other software routine designed to disable a computer program automatically with the passage of time or under the positive control of an unauthorized person; (15) delete, modify, hack, or attempt to change or alter the Services, Vitalant Content, or notices on the Services; (16) connect to or access any Vitalant computer system or network other than the Services; or (17) impersonate any other person or entity to use or gain access to the Services. We reserve the right to investigate and prosecute violations of any of the above to the fullest extent of the law. We may involve and cooperate with law enforcement authorities in prosecuting users who violate this Agreement.
Content and Materials on the Services
The Services may include or provide access to information, software, photos, videos, text, graphics, music, sounds, and other material or information provided by us or third parties (collectively, the “Vitalant Content”) that are protected by copyrights, patents, trademarks, trade secrets, or other intellectual property laws. You understand and agree that these rights in any Vitalant Content are valid and protected in all forms, media, and technologies existing now or developed in the future. You may not obscure or remove any proprietary rights notices contained in or on the Vitalant Content.
We welcome your comments, feedback, information, or materials regarding the Services or any of our other products or services (collectively, “Feedback”). Your Feedback will become our property upon your submission to us. By submitting your Feedback to us, you agree to assign, and hereby irrevocably assign to us, all right, title, and interest in and to the Feedback and all copyrights and other intellectual property rights embodied in such Feedback on a worldwide basis. We will be free to use, copy, distribute, publish and modify your Feedback on an unrestricted basis, without compensation to you. Moreover, you hereby assign or waive, as the case may be, any moral rights that you may have in or to the Feedback.
Links; Third Party Materials
Ownership of Intellectual Property
Vitalant or its licensors exclusively own all right, title and interest in and to the Services, the Vitalant Materials, the Vitalant Content, and Feedback, including but not limited to, all ideas, inventions, inferences, discoveries, source and object software code, developments, derivative works, enhancements, upgrades, fixes and patches, formats and processes, and all images, trademarks, service marks, logos and icons displayed or related therein or thereto (collectively, “Vitalant IP”). Except as expressly provided herein, you have no right, license, or authorization with respect to any of the Vitalant IP. You shall not assert any claims to the contrary or otherwise do anything inconsistent with the allocation of ownership herein, including, but not limited to, challenging the validity of the authorizations or any intellectual property rights granted herein. In the event you are ever deemed to be the owner of any of the Vitalant IP, you shall immediately take all necessary steps to evidence, transfer, perfect, vest, or confirm Vitalant’s right, title and interest in the Vitalant IP. Vitalant is not transferring or granting to you any right, title, or interest in or to (or granting you any license or other permissions in or to) any Vitalant IP. The sole exception of the foregoing reservation of rights is the limited, non-exclusive, and non-transferable authorization explicitly granted in Section 1.2, and which shall automatically terminate upon expiration or termination of this Agreement. Any unauthorized use of any Vitalant IP, whether owned by us or other parties, may violate copyright laws, trademark laws, privacy and publicity laws and communications regulations and statutes. Trademarks owned by third parties are the property of those respective third parties.
You must immediately notify us if you learn of or have reason to suspect any unauthorized use of your account or any other breach of security. You are responsible for maintaining the security and confidentiality of your username and password or other login credentials (both to your Vitalant account and any other third-party login) and are fully responsible for all activities that occur under your account. You also agree that you will provide truthful and accurate information during the registration process. We may refuse to grant you a particular username for any reason, including, without limitation, if we have reason to believe that such username impersonates another person or entity, is protected by trademark or other proprietary rights, or is vulgar or otherwise offensive.
Access Through Mobile Devices
Your contract with your mobile network provider (“Mobile Provider”) will continue to apply when accessing or using the Services on your mobile, handheld device (“Mobile Device”). You understand that your Mobile Provider may charge you fees for your use of its network connection services while accessing or using the Services, for data downloading, email, text messages, for roaming, and other Mobile Provider or third-party charges. YOU ACCEPT RESPONSIBILITY FOR ALL MOBILE PROVIDER FEES.
Additional Terms Applicable on the Android Market/Google Play
Vitalant and you both agree and acknowledge that neither Google Inc., nor any of its subsidiaries or affiliates (“Google”), are a party to this Agreement, and you will look to Vitalant for any recourse, and not Google. You agree to be bound by the then-current Android Market Terms of Services as found on Google’s website: http://www.google.com/mobile/android/market-tos.html ) and the Google Play Terms of Services (located at https://play.google.com/about/play-terms.html). You acknowledge that Google has no obligation whatsoever to furnish any maintenance and support services with respect to our Services. To the extent there is a conflict between any of the terms contained herein and those set forth in either the Android Market Terms of Services or Google Play Terms of Service, the Android Market Terms of Services or Google Play Terms of Services, whichever is applicable, will prevail and govern.
Additional Terms Applicable to iOS Devices
Vitalant and you both agree and acknowledge that neither Apple Inc., nor any of its subsidiaries or affiliates (“Apple”), are a party to this Agreement, and you will look to Vitalant for any recourse, and not Apple. You agree to be bound by the then-current Apple Media Services Terms and Conditions as found on Apple’s website: https://www.apple.com/ca/legal/internet-services/itunes/ca/terms.html . You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to our Services. To the extent there is a conflict between any of the terms contained herein and those set forth in the Apple Media Services Terms and Conditions, the Apple Media Services Terms and Conditions will prevail and govern.
In the event you provide any Feedback via the Services, you hereby make the following additional representations and warranties to us: (1) you are owner of such Feedback or otherwise have the right to grant us the licenses or assignments granted pursuant to this Agreement; (2) you have secured any and all consents necessary to provide the Feedback and to grant the foregoing licenses or assignments; (3) the Feedback does not violate the rights of any third party, including, without limitation, the intellectual property, privacy or publicity rights of any third party, and such Feedback does not contain any personally identifiable information about third parties in violation of such parties’ rights; (4) the use of any Feedback will not result in harm or personal injury to any third party; and (5) all factual information contained in the Feedback is true and accurate.
Disclaimers of Warranty
To the maximum extent permitted by law, the services are provided “as is” and “as available,” and at your sole risk. To the maximum extent permitted by law, we expressly disclaim all warranties of any kind, whether express or implied, including, without limitation, the implied warranties of merchantability, fitness for a particular use or purpose, title, and non-infringement. Without limitation, we make no warranty that the services will meet your requirements, that use of the foregoing will be uninterrupted, timely, secure, or error-free, that the results obtained from the use of the foregoing or any information or content found on the services will be accurate or reliable, that defects in the operation or functionality of the services will be corrected, that the services and any content or information found on the services will be virus-free, or that the quality of any information, content, or other materials obtained through the services will meet your expectations.
Indemnity; Limitation of Liability
You agree to defend, indemnify, and hold harmless Vitalant, our officers, members, managers, employees, partners, and agents from and against any and all claims, liabilities, damages, losses, demands, or expenses, including attorney’s fees and costs and expenses, arising out of or in any way connected with: (a) your use OR MISUSE of our SERVICES, (d) your violation of this Agreement, (c) your violation of any law or the rights of any third party, (D) your negligence or willful misconduct; or (e) any other claim, penalty, violation, fine, fee (including attorney's fees), or occurrence arising from your use or misuse of the services.
Limitation of Liability
Under no circumstances shall Vitalant be liable for any direct or indirect losses or damages arising out of or in connection with the use of or inability to use our services. If you are dissatisfied with our services, or with this agreement, your sole and exclusive remedy is to discontinue using our services. In any event, the total maximum aggregate liability under this agreement for the use of any or all parts of our services in any manner whatsoever shall be limited to one hundred dollars ($100.00).
For California Residents
If you are a California resident or could otherwise claim the protections of California law, you further expressly waive the provisions of Section 1542 of the California civil code, which reads as follows: "a general release does not extend to the claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release which, if known by him or her, must have materially affected his or her settlement with the debtor." You acknowledge that you have read and understand Section 1542 of the California civil code, and you hereby expressly waive and relinquish all rights and benefits under that section and any law of any jurisdiction of similar effect with respect to your release of any claims you may have against Vitalant.
Dispute Resolution and Governing Law, Jurisdiction and Costs
This Agreement will be governed by and construed, interpreted, and enforced in accordance with the laws of the State of Arizona without reference to its conflicts or choice of law principles. Any arbitration or court proceeding will take place in Maricopa County, Arizona, and you hereby consent to the exclusive jurisdiction and venue of the state or federal courts in Maricopa County, Arizona. You irrevocably submit and consent to the personal jurisdiction of such courts.
To the extent feasible, the parties desire to resolve any dispute, claim or controversy arising out of or relating to your use of or access to the Services or Vitalant Materials, this Agreement or the breach, termination, enforcement, interpretation, or validity of this Agreement, including the determination of the scope or applicability of this agreement to arbitration (a “Dispute”) through discussions and negotiations between each other. The parties agree to attempt to resolve any Disputes by negotiation with the other party (by phone, electronic correspondence, or written correspondence). If we are not able to resolve any Dispute ourselves, you and Vitalant agree to resolve such Dispute through confidential binding arbitration as set forth below.
If you and Vitalant are unable to resolve a Dispute through informal negotiations, either you or Vitalant may elect to have the Dispute (except those Disputes expressly excluded below) finally and exclusively resolved by binding arbitration. Any election to arbitrate by one party shall be final and binding on the other. The arbitration shall be commenced and conducted under the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) and, where appropriate, the AAA’s Supplementary Procedures for Consumer Related Disputes (“AAA Consumer Rules”), both of which are available at the AAA website www.adr.org. The determination of whether a Dispute is subject to arbitration shall be governed by the Federal Arbitration Act and determined by a court rather than an arbitrator. Your arbitration fees and your share of arbitrator compensation shall be governed by the AAA rules and, where appropriate, limited by the AAA Consumer Rules. The arbitration may be conducted in person, through the submission of documents, by phone or online. The arbitrator will make a decision in writing, but need not provide a statement of reasons unless requested by a party. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. Except as otherwise provided in this Agreement, you and Vitalant may litigate in court to compel arbitration, stay proceeding pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator.
Waiver of Rights
You hereby agree that you understand the consequences of agreeing to binding arbitration under this Section, including giving up any constitutional rights to have the Dispute determined by a court of law or by a jury and any right that you may have under Article 13 of the State Bar Act to have a trial de novo by a court after nonbinding arbitration of a dispute concerning fees or costs; that discovery of information in arbitration may be limited; and that the arbitration decision will be final and binding, except to the limited extent that judicial review might be available. All claims and disputes within the scope of this agreement must be arbitrated or litigated on an individual basis and not on a class basis. Claims of more than one user cannot be arbitrated or litigated jointly or consolidated with those of any other user.
This Agreement is effective upon your acceptance and will continue in full force until terminated by you or us. You may terminate this Agreement at any time by immediately discontinuing all access to the Services. Termination or cancellation of this Agreement will not affect any right or relief to which we may be entitled at law or in equity. We reserve the right to terminate this Agreement at any time and for any reason without prior notice to you. Further, you agree that we will not be liable to you or any third party for any termination or suspension of your access to the Services or any part thereof.
You understand and expressly agree that you and Vitalant are independent contractors and not agents or employees of the other party. Neither you nor Vitalant has any right, power, or authority to act or create any obligation, express or implied, on behalf of the other party.
Consent to Do Business Electronically
We use and rely upon electronic records and electronic signatures for the execution and delivery of this Agreement and any other agreements, undertakings, notices, disclosures or other documents, communications or information of any type sent or received in accordance with this Agreement and in performing our obligations and exercising our rights under this Agreement. Neither you nor Vitalant will prevent or inhibit in any way the other party from printing, saving, or otherwise storing electronic records sent or otherwise made available to the other party. You agree not to contest the authorization for, or validity or enforceability of, electronic records and electronic signatures, or the admissibility of copies thereof, under any applicable law relating to whether certain agreements, files, or electronic records are to be in writing or signed by you to be bound thereby. You will bear your own costs and expenses in conducting business electronically, and will undertake all steps necessary, including software, hardware, and other equipment upgrades and purchases, in order to be able to conduct business electronically.
You agree that breach of the provisions of this Agreement would cause irreparable harm and significant injury to us which would be both difficult to ascertain and which would not be compensable by damages alone. As such, you agree that we have the right to enforce the provisions of this Agreement by injunction (without necessity of posting bond), specific performance, or other equitable relief without prejudice to any other rights and remedies we may have for your breach of this Agreement.
This Agreement and any hyperlinked policies and procedures constitute the entire agreement between you and Vitalant with respect to the Services and supersede all prior agreements, both oral and written, with respect to the Services. We may revise and update this Agreement from time to time, and will post the updated Agreement to the portal. Unless otherwise stated in the amended version of this agreement, any changes to this agreement will apply immediately upon posting. Although we are not obligated to provide you with notice of any changes, any changes to this Agreement will not apply retroactively to events that occurred prior to such changes. Your continued use of the Services will constitute your agreement to any new provisions within the revised Agreement.
Our failure to enforce any provision of this Agreement will not be deemed to be a waiver of our right to enforce them. If any term or provision of this Agreement will be held to be invalid, illegal, or unenforceable, the remaining terms and provisions of this Agreement will remain in full force and effect, and such invalid, illegal, or unenforceable term or provision will be deemed not to be part of this Agreement.
You may not assign, transfer, or sell (voluntarily or by operation of law) your rights or obligations under this Agreement, nor delegate your duties hereunder to any other person, without our prior written consent. Any purported assignment without our consent will be void and will constitute a breach of this Agreement. We may assign this Agreement or delegate or subcontract our obligations under this Agreement at any time.
The provisions of this Agreement that by their content are intended to survive the expiration or termination of this Agreement, including, without limitation, provisions governing ownership and use of intellectual property, representations, disclaimers, warranties, liability, indemnification, governing law, jurisdiction, venue, remedies, rights after termination, and interpretation of this Agreement, will survive the expiration or termination of this Agreement for their full statutory period.
Reference: This policy was last modified on Jan. 11, 2021.