Last Updated Date: February 10, 2021
1. Introduction and Eligibility
We have included several annotations in boxes to help explain the legal jargon and emphasize key sections. These annotations are for convenience only and have no legal or contractual effect.
Binding Agreement. This EULA constitutes a binding agreement between you and Vitals In View, Inc., DBA “VIV”, and its affiliates and subsidiaries (“VIV,” “we,” “us,” and “our”) governing your use of the App. “App” means our VIV mobile app (the “App”) and all Internet services under the control of VIV that are operated in connection with the App. “You” and “users” mean all users of the App. BY INSTALLING OR OTHERWISE ACCESSING OR USING THE APP, YOU AGREE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THIS EULA. IF YOU DO NOT AGREE, THEN YOU MAY NOT DOWNLOAD OR USE THE APP.
You may use the App only if you are of legal age to form a binding contract (or, if you are a minor, if you have your parent’s or legal guardian’s permission to use the App, and your parent or legal guardian has read and agrees to this EULA on your behalf) and are not a person barred from receiving services under the laws of the United States or other applicable jurisdiction. You affirm that you have not been previously suspended from or removed as a user of the App.
You accept this EULA each time you access the App. If you do not accept this EULA, you must not use the App.
Revisions to Terms. We may revise this EULA at any time by posting an updated version. You should visit this page periodically to review the most current EULA, because you are bound by it. Your continued use of the App after a change to this EULA constitutes your binding acceptance of this EULA. Notwithstanding the preceding sentences of this paragraph, no revisions to this EULA will apply to any dispute between you and VIV that arose prior to the date of that revision.
The terms “post” and “posting” as used in this EULA mean the act of submitting, uploading, publishing, displaying, or similar action on the App.
Material Terms. As provided in greater detail in this EULA (and without limiting the express language of this EULA below), you acknowledge the following:
2. The VIV App
The App provides a platform for logging and sharing certain activity information. The App may also allow you to communicate with other users by using messaging features. You may access the App for your personal informational purposes only and solely as intended through the provided functionality of the App and as permitted under this EULA.
You are responsible for all charges, including data fees, from your Carrier, that are incurred through access of the App through a mobile device.
Third-Party Services. The App may link to third-party websites or applications to facilitate its provision of services to you. You are responsible for evaluating whether you want to access or use them. If you use these links, you will leave the App. Some of these third-party websites may use VIV Content (defined below) under license from VIV. VIV is not responsible for and we do not endorse any features, content, advertising, products, or other materials on other websites or applications, whether or not VIV is affiliated with those third-party websites. Through our use, we do not endorse the organizations sponsoring those third-party websites or their products or services. You assume all risk and we disclaim all liability arising from your use of third-party websites or applications.
Social Sign-On. The App may allow or require you to register and log in using sign-on functionality provided by social networks, such as Facebook. You agree to abide by the social networks’ terms and conditions applicable to you.
App Security. You are prohibited from violating, or attempting to violate, the security of the App. Any violations may result in criminal or civil penalties against you, as well as the termination of your privilege to use the App, at VIV’s sole discretion. VIV reserves the right to investigate any alleged or suspected violations and, if a criminal violation is suspected, refer the suspected violation to the appropriate law enforcement agencies and cooperate fully with the investigations, including, but not limited to, the disclosure of any or all of your activities on or related to the App.
The App is licensed, not sold, to you for use only under this EULA. VIV reserves all rights not expressly granted to you. Subject to your complete and ongoing compliance with this EULA, VIV hereby grants you a personal, limited, revocable, non-transferable license to use the App solely for your personal, non-commercial use, and to use the App on any compatible device that you own or control. You may not modify, alter, reproduce, distribute, or make the App available over a network where it could be used by multiple devices or users at the same time. You may not rent, lease, lend, sell, redistribute, copy or sublicense the App. You may not copy, decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of any portion of the App, any updates, or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law or Third Party Terms (as defined below)), nor attempt to disable or circumvent any security or other technological measure designed to protect the App or any content available through the App. If you breach these license restrictions, or otherwise exceed the scope of the licenses granted in this EULA, then you may be subject to prosecution and damages, as well as liability for infringement of intellectual property rights. The terms of this EULA will govern any updates provided to you by VIV that replace or supplement the original App or any other portion of the App, unless that upgrade is accompanied by a separate license or revised EULA, in which case the terms of that license or revised EULA will govern.
4. Medical Information Disclaimer
The information in the App is for informational purposes only. This information is in no way meant to be a substitute for medical treatment and may not be construed as medical advice, diagnosis, or treatment. Nothing contained in the App is intended to replace the services of a licensed, trained physician or health professional or to be a substitute for medical advice of a physician or trained health professional licensed in your jurisdiction. No action or inaction should be taken based solely on the information made available through the App. Instead, patients should consult with appropriate health professionals on any matter relating to their health and well-being. If you have any questions or concerns about diabetes treatment or treatment for other medical issues, you should contact your healthcare provider. You should never delay seeking medical advice, disregard medical advice, or discontinue medical treatment because of information provided in the App.
5. Third Party Software
The software you download consists of a package of components, including certain third party software (“Third Party Software”) provided under separate license terms (the “Third Party Terms”), which can be found in the documentation for the App or the applicable help, notices, about, or source files. Your use of the Third Party Software in conjunction with the App in a manner consistent with the terms of this EULA is permitted, however, you may have broader rights under the applicable Third Party Terms and nothing in this EULA is intended to impose further restrictions on your use of the Third Party Software.
6. Financial Matters
Consideration. You understand and agree that this EULA is entered into in consideration of your use of the App and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged.
Fees. We may charge you a fee (the “Fee”) for use of certain features of the App. The price for utilizing these features will be displayed on the App. Payments of those Fees will be governed by your app store’s terms applicable to in-app purchases.
Taxes and Fees. You are responsible for determining and paying the appropriate government taxes, fees, and service charges resulting from a transaction occurring through the App. We are not responsible for collecting, reporting, paying, or remitting to you any of those taxes, fees, or service charges, except as may otherwise be required by law.
No Refunds. You may cancel your account at any time; however, there are no refunds for cancellation. In the event that we suspend or terminate your account or this EULA, you understand and agree that you will receive no refund or exchange for any unused time on paid features, any license or subscription fees for any portion of the App, any content or data associated with your account, or for anything else.
7. Your Account
Upon launching the App, if you do not already have an account, you will be prompted to create one. You may be allowed or required to create an account by using sign-on functionality provided by Facebook or other social networks. You represent and warrant that the information you provide to VIV or that is provided to VIV on your behalf by the social network you use to sign into the App will be true, accurate, current, and complete upon registration and will ensure that this information is kept accurate and up-to-date at all times.
Your Log-In Credentials. You are responsible for maintaining the confidentiality of your log-in credentials and are fully responsible for all activities that occur through the use of your credentials. You agree to notify us immediately if you believe the confidentiality of your log-in credentials has been compromised or if you suspect unauthorized use of your account. You agree that we will not be liable for any loss or damage arising from unauthorized use of your credentials.
Cancellation. As permitted under the terms of this EULA, we have the right at any time for any reason or no reason to suspend or terminate your account, terminate this EULA, or refuse any and all current or future use of the App without notice, refund, obligation, or liability to you.
8. Location-Based Services
Some of the features of the App may enable VIV to access your location in order to tailor your experience with the App based on your location (“Location-Based Services”). In order to use certain Location-Based Services, certain features of your mobile phone must be enabled, such as GPS, Wi-Fi, and Bluetooth, which enable VIV to identify your location through a variety of means, including GPS location, IP address, cell tower location, geo-fencing technology, or detection by physical on-location Wi-Fi or Bluetooth sensors, as available. To the extent your location is collected through Wi-Fi or Bluetooth sensors, those sensors, and the associated data services, may be provided by a third party, and you agree and acknowledge that the third party may access that information for the purpose of providing the data services to VIV. If you choose to disable any Location-Based Services on your device, you will not be able to utilize certain features of the App. By enabling Location-Based Services on your device, you agree and acknowledge that (a) device data we collect from you is directly relevant to your use of the App, (b) VIV may provide Location-Based Services related to and based on your then-current location, and (c) VIV may use any information collected in connection with the provision of Location-Based Services in connection with its provision of the App. PLEASE NOTE THAT LOCATION DATA MAY NOT ALWAYS BE ACCURATE, AND VIV DISCLAIMS ANY AND ALL WARRANTIES RELATED TO LOCATION-BASED SERVICES.
You consent for VIV to communicate with you through the methods outlined below. You understand that these communications may involve the use and disclosure of your personal information or protected health information (if provided by a HIPAA covered entity) to carry out operations related to the App and all services under the control of VIV that are operated in connection with the App. You further understand that you may change your communications preferences with VIV at any time by emailing email@example.com, or mailing a written request to the address below.
Email. You consent to receive email from VIV at the email address you provided, for customer service-related and promotional purposes and in connection with providing communications that are features of the App (e.g., information on new products or features, informational notifications, and motivational alerts). You may opt out of receiving promotional emails by clicking on the unsubscribe link in promotional emails you receive. We may also send you push notifications for those same purposes through the App itself. You consent for VIV to contact you via unencrypted email in reference to any items that assist VIV in providing services related to the App, such as reminders, shipment and delivery of supplies, health profile updates and any communications pertaining to your care, including information exchanged with VIV coaches and email message campaigns.
Electronic Notices. By using the App, you agree that we may communicate with you electronically regarding security, privacy, and administrative issues relating to your use of the App. If we learn of a security system’s breach, we may attempt to notify you electronically by posting a notice via the App or sending an email to you.
Text Messages. By providing us with your mobile telephone number and requesting that we communicate information to you by text message, you consent to receive unencrypted SMS text messages at that number as requested. The App may allow you to receive messages from other users or from VIV via SMS. You consent for VIV to contact you via unencrypted SMS text messages in reference to any items that assist VIV in providing services related to the App, such as reminders, shipment and delivery of supplies, health profile updates and any communications pertaining to your care, including information exchanged with VIV coaches and email message campaigns.
While we do not charge a fee for text messages, your wireless service carrier may charge standard messaging, data, and other fees. You are responsible for these charges. You may turn off or unsubscribe from these messages by texting “STOP” in reply to text messages from the App. You may also be able to change your text message preferences using the App. We may send and receive text messages through cellular telephone operators or other networks, and the level of reliability may vary. We are not responsible for the timeliness or final delivery of the message, as this is out of our control and is the responsibility of the cellular telephone operator or other networks.
Telephone. You consent for VIV to call your home number, mobile number or other alternative number and leave a message on voicemail in reference to any items that assist VIV in providing services related to the App, such as reminders, insurance items, shipment and delivery of supplies, health profile updates and any calls pertaining to my care, including, but not limited to, conversations with VIV coaches.
Sending Messages Through the App. The App may include functionality that allows you to send stickers or messages to other App users. You acknowledge that the App may include functionality that allows certain users to block you from sending them messages. You agree that you will not send messages to individuals who have requested that you not send them messages. We reserve the right to restrict the number of communications that you send to other users in any specified period to a number that VIV deems appropriate in its sole discretion. You agree that your use of the App will not include sending unsolicited marketing messages or broadcasts (i.e., spam).
10. VIV’s Content Ownership and Use
The contents of the App include: designs, text, graphics, images, video, information, logos, button icons, software, audio files, computer code, and VIV content (collectively, the “VIV Content”). All VIV Content and the compilation (meaning the collection, arrangement, and assembly) of all VIV Content are the property of VIV or its licensors and are protected under copyright, trademark, and other laws.
License to You. We authorize you, subject to this EULA, to access and use the App and VIV Content solely for the use of the services provided by VIV, at our discretion. Any other use is expressly prohibited. This license is revocable at any time without notice and with or without cause. Unauthorized use of VIV Content may violate copyright, trademark, and applicable communications regulations and statutes and is strictly prohibited. You must preserve all copyright, trademarks, service marks, and other proprietary notices contained in the original VIV Content on any copy you make of VIV Content.
You may not copy, reproduce, republish, upload, post, transmit, or distribute material made available on or through the App in any way without written permission of the copyright owner. You may not download or copy materials that we do not make expressly available for download without our prior written permission. Modification of materials obtained from the App, including, but not limited to, User Content (as defined below), for any other purpose, including, without limitation, any commercial purpose, is a violation of the copyrights and other proprietary rights of VIV or its licensors, unless you have obtained express written authorization to the contrary.
No Commercial Use. No materials obtained from the App, even if authorized for download from the App, may be redistributed, nor may they be used for any commercial purpose, without VIV’s prior written permission.
Additional Licenses. Certain materials made available for download from or through the App may be subject to additional or different license terms and conditions, such as terms and conditions set forth in a Creative Commons license. Any of those terms and conditions will be identified in advance for those materials, and by downloading any materials governed by any other license terms and conditions, you hereby agree to be bound by and comply with those terms and conditions.
No Implied Rights. There are no implied licenses granted in this EULA. All rights not granted in this EULA are expressly reserved by VIV, our licensors, or the copyright owner of any User Content.
VIV Marks. VIV, the VIV logo, and other VIV logos and product and App names are or may be trademarks of VIV or its licensors (the “VIV Marks”). Without our prior written permission, and except as solely enabled by any link as provided by us, you agree not to display or use in any manner the VIV Marks.
11. Intellectual Property Rights and Our License to Use
VIV Claims No Ownership. The App may include features that enable you to post certain materials from your device to the App. Except for VIV Content provided to you on or through the App, you agree that you, solely, are responsible for, and assume all liability and consequences regarding, the photos, video, audiovisual, audio, text, and any other media content that you post to or through the App along with all associated metadata (which may include, without limitation, your device type, applicable device identifier, IP address, phone state, as well as date, time, and application and location data associated with Internet and data services and the creation or submission or a particular piece of content) (collectively “Your User Content”).
You Acquire No Ownership of Others’ Content. You understand and agree that you will not obtain, through use of the App, any right, title, or interest (including intellectual property rights) in content delivered via the App.
You Must Have Rights to the Content You Post. You represent and warrant that: (a) you own the content posted by you on or through the App or otherwise have the right to grant the license set forth in this EULA; (b) the posting and use of Your User Content on or through the App does not violate the privacy rights, publicity rights, copyrights, contract rights, intellectual property rights, or any other rights of any person; (c) the posting of Your User Content on the App will not require VIV to obtain any further licenses from or pay any royalties, fees, compensation, or other amounts or provide any attribution to any third parties; and (d) the posting of Your User Content on the App does not result in a breach of contract between you and a third party. You agree to pay all monies owing to any person as a result of posting Your User Content on the App. You also acknowledge and agree that Your User Content is non-confidential.
The App contains content from users and other VIV licensors. Except as provided within this EULA, you may not copy, modify, translate, publish, broadcast, transmit, distribute, perform, display, or sell any content appearing on or through the App.
12. Intellectual Property Policy
VIV respects the intellectual property of others and takes the protection of copyrights and all other intellectual property very seriously, and we ask our users to do the same. Infringing activity will not be tolerated on or through the App.
VIV’s intellectual property policy is to (a) remove material that VIV believes in good faith, upon notice from an intellectual property owner or their agent, is infringing the intellectual property of a third party by being made available through the App, and (b) remove any User Content posted to the App by “repeat infringers.” VIV considers a “repeat infringer” to be any user that has posted User Content to the App and for whom VIV has received more than two takedown notices compliant with the provisions of 17 U.S.C. § 512(c) with respect to that User Content. VIV has discretion, however, to terminate the account of any User after receipt of a single notification of claimed infringement or upon VIV’s own determination.
The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for intellectual property owners who believe that material appearing on the Internet infringes their rights under U.S. law. If you believe in good faith that materials posted on the App infringe your intellectual property rights, you (or your agent) may send VIV a “Notification of Claimed Infringement” requesting that the material be removed or access to it blocked. The notice must include the following information:
If you believe in good faith that a notice of copyright infringement has been wrongly filed against you, the DMCA permits you to send VIV a counter-notice.
Notices and counter-notices must meet then-current statutory requirements imposed by the DMCA; see http://www.loc.gov/copyright/ for details. Notices and counter-notices with respect to the App should be sent to Copyright c/o VIV, Vitals In View, Inc., 300 W 145th Street, 2Q, New York, NY 10039 or firstname.lastname@example.org.
Consult your legal advisor and see 17 U.S.C. § 512 before filing a notice or counter-notice as there are penalties for false claims under the DMCA. The foregoing is not intended to provide you with legal advice.
13. Suggestions and Submissions
We appreciate hearing from our users and welcome your comments regarding the App. Please be advised, however, that if you send us creative ideas, suggestions, inventions, or materials (“Creative Ideas”), we will:
14. Content Disclaimers, Limitations, and Prohibitions
We do not represent or guarantee the truthfulness, accuracy, or reliability of content posted by users (“User Content”). You accept that any reliance on material posted by other users or third-party service providers will be at your own risk. By using the App you accept the risk that you might be exposed to content that is objectionable or otherwise inappropriate.
You are solely responsible for Your User Content on the App. VIV does not endorse any, nor is it responsible for, User Content on the App. You assume all risks associated with Your User Content, including anyone’s reliance on its quality, accuracy, or reliability. You may expose yourself to liability if, for example, Your User Content contains material that is false, intentionally misleading, or defamatory; violates third-party rights; or contains material that is unlawful or advocates the violation of any law or regulation.
You understand that by using the App, you may encounter data, information, applications, or materials from third parties, including other users of the App and other content, including VIV Content (as defined below) (collectively, “Content”), that may be deemed offensive, harmful, indecent, objectionable, inaccurate, deceptive, or otherwise inappropriate which Content may or may not be identified as having explicit or inappropriate language or other material. Nevertheless, you agree that your use of the App and reliance upon any Content accessible through the App is at your sole risk and that VIV will not have any liability to you for content that may be found to be offensive, indecent, or that is inaccurate, incomplete, untimely, invalid, illegal, indecent, of poor quality, or otherwise objectionable or inappropriate.
You agree to use the App only for its intended purpose. You must use the App in compliance with all privacy, data protection, intellectual property, and other applicable laws. The following uses of the App are prohibited. You may not:
15. Consequences of Violating this EULA
We reserve the right to suspend or terminate your account and prevent access to the App for any reason, including if you engage in activity that, in VIV’s sole judgment, violates this EULA, without notice and at our discretion. We reserve the right to refuse to provide the App or any portion thereof to you in the future and we may block or prevent your future access to and use of the App or any portion thereof.
VIV may review and remove any User Content at any time for any reason, including if you engage in activity which, in VIV’s sole judgment: violates this EULA; violates applicable laws, rules, or regulations; is abusive, disruptive, offensive, or illegal; or violates the rights of, or harms or threatens the safety of, users of the App.
You are responsible for any claims, fees, fines, penalties, and other liability incurred by us or others caused by or arising out of your breach of this EULA and your use of the App.
You are solely responsible for maintaining backup copies of any User Content you post to the App. We are not responsible for the deletion or unavailability of any User Content.
16. VIV’s Liability
Changes to the App. We may change, suspend, or discontinue any aspect of the App at any time, including hours of operation or availability of the App or any feature, without notice or liability.
User Disputes. We are not responsible for any disputes or disagreements between you and any third party you interact with using the App. You assume all risk associated with dealing with third parties. You agree to resolve disputes directly with the other party. You release VIV of all claims, demands, and damages in disputes among users of the App. You also agree not to involve us in those disputes. Use caution and common sense when using the App.
Content Accuracy. We make no representations about accuracy, reliability, completeness, or timeliness of any contents of the App. Similarly, we make no representations about accuracy, reliability, completeness, or timeliness of any data from a third-party service provider or the quality or nature of third-party products or services obtained through the App. Use the App at your own risk.
Use of the App. We make no promises and disclaim all liability of specific results from the use of the App.
Released Parties Defined. “Released Parties” include VIV and its affiliates, officers, employees, agents, service providers, partners, and licensors.
DISCLAIMER OF WARRANTIES
YOU EXPRESSLY UNDERSTAND AND AGREE THAT: (i) YOUR USE OF THE APP IS AT YOUR SOLE RISK, AND THE APP IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND THE RELEASED PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES AS TO PRODUCTS OR SERVICES OFFERED BY BUSINESSES LISTED ON THE APP OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT; (ii) THE RELEASED PARTIES MAKE NO WARRANTY THAT (1) THE APP WILL MEET YOUR REQUIREMENTS, (2) THE APP WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (3) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE APP WILL BE ACCURATE OR RELIABLE, (4) THE QUALITY OF ANY GOODS OR SERVICES AVAILABLE ON THE APP WILL MEET YOUR EXPECTATIONS, OR (5) ANY ERRORS IN THE APP WILL BE CORRECTED; AND (iii) ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE APP IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF THAT MATERIAL.
LIMITATION OF LIABILITY AND INDEMNIFICATION
YOU EXPRESSLY UNDERSTAND AND AGREE THAT THE RELEASED PARTIES WILL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, OR DATA OR OTHER INTANGIBLE LOSSES (EVEN IF VIV HAS BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES), RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE APP; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION, OR SERVICES OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH, FROM, OR AS A RESULT OF THE APP; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY USER OR THIRD PARTY ON THE APP; (v) YOUR RELIANCE ON CONTENT MADE AVAILABLE BY US; OR (vi) ANY OTHER MATTER RELATING TO THE APP. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS IN THIS PARAGRAPH MAY NOT APPLY TO YOU.
TO THE FULLEST EXTENT POSSIBLE BY LAW, OUR MAXIMUM LIABILITY ARISING OUT OF OR IN CONNECTION WITH THE APP OR YOUR USE OF VIV CONTENT, REGARDLESS OF THE CAUSE OF ACTION (WHETHER IN CONTRACT, TORT, BREACH OF WARRANTY, OR OTHERWISE), WILL NOT EXCEED $100.
You agree to defend, indemnify, and hold harmless the Released Parties from and against any claims, actions, or demands, including without limitation reasonable legal and accounting fees, alleging or resulting from (1) your access, use, or misuse of the App, (2) your use of or reliance on any third-party content, (3) your use of or reliance on any VIV Content, or (4) your breach of this EULA. VIV will use reasonable efforts to notify you of the claim, action, or proceeding for which it seeks an indemnification from you upon becoming aware of it, but if VIV is unable to communicate with you in a timely manner because of an inactive email address for you, your indemnification obligation will continue notwithstanding VIV’s inability to contact you in a timely manner.
17. General Terms
18. Arbitration, Class Waiver, and Waiver of Jury Trial
This EULA and the relationship between you and VIV is governed by the laws of the state of New York without regard to its conflict of law provisions that would result in the application of the laws of another jurisdiction. You and VIV agree to submit to the personal and exclusive arbitration of any disputes relating to your use of the App under the rules of the American Arbitration Association. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Please visit www.adr.org for more information about arbitration,
Any arbitration between you and VIV, to the extent necessary, will be conducted in New York, New York and you waive any right to claim that the location is an inconvenient forum. You covenant not to sue VIV in any other forum.
The arbitration will be conducted in the English language. A single independent and impartial arbitrator will be appointed pursuant to the rules of the American Arbitration Association, as modified by this EULA. You and VIV agree to comply with the following rules, which are intended to streamline the dispute resolution process and reduce the costs and burdens on the parties: (a) the arbitration will be conducted by telephone, online, or be solely based on written submissions, the specific manner to be chosen by the party initiating the arbitration; (b) the arbitration will not require any personal appearance by the parties or witnesses unless otherwise mutually agreed in writing by the parties; and (c) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
Barring extraordinary circumstances, the arbitrator will issue his or her decision within 120 days from the date the arbitrator is appointed. The arbitrator may extend this time limit for an additional 30 days in the interests of justice. All arbitration proceedings will be closed to the public and confidential and all records relating thereto will be permanently sealed, except as necessary to obtain court confirmation of the arbitration award. The award of the arbitrator will be in writing and will include a statement setting forth the reasons for the disposition of any claim.
You also acknowledge and understand that, with respect to any dispute with the Released Parties arising out of or relating to your use of the App or this EULA:
Only if this arbitration provision is deemed to be null and void, then all disputes arising between you and VIV under this EULA will be subject to the exclusive jurisdiction of the state and federal courts located in or having jurisdiction over New York, New York, and you and VIV hereby submit to the personal jurisdiction and venue of these courts.
19. Contact Information
VIV c/o Vitals In View, Inc.
300 W 145th Street, 2Q
New York, NY 10039
NOTICE REGARDING APPLE. You acknowledge that this EULA is between you and VIV only, not with Apple or your phone manufacturer, and Apple or your phone manufacturer, are not responsible for the App or the content thereof. Apple or your phone manufacturer have no obligation whatsoever to furnish any maintenance and support services with respect to the App. In the event of any failure of the App to conform to any applicable warranty, then you may notify Apple or Google and Apple or Google will refund the purchase price for the relevant App to you; and, to the maximum extent permitted by applicable law, Apple or Google have no other warranty obligation whatsoever with respect to the App. Apple or Google are not responsible for addressing any claims by you or any third party relating to the App or your possession and/or use of the App, including, but not limited to: (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. Apple or Google are not responsible for the investigation, defense, settlement, and discharge of any third party claim that the App or your possession and use of the App infringes that third party’s intellectual property rights. You agree to comply with any applicable third party terms, when using the App. Apple, Google and their subsidiaries, are third party beneficiaries of this EULA, and upon your acceptance of this EULA, Apple and Google will have the right (and will be deemed to have accepted the right) to enforce this EULA against you as a third party beneficiary of this EULA. You hereby represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. If VIV provides a translation of the English language version of this EULA, the translation is provided solely for convenience, and the English version will prevail.