SaaS Terms of Service
Last Updated. 15 September 2018
Vivaliti DNA, LLC (“Vivaliti” or “Company”) provides its health optimization dashboard and client portal (the “Applications”), its program documents and supporting materials as intellectual property (“IP”) and its services accessed through the Applications (“Services”) to You and Your patients, clients, members, employees and/or customers (collectively, “Customers”) through You, subject to the following Terms of Service along with any additional terms or conditions that are referenced here or that otherwise may apply to specific portions of the Services or Applications. By accessing the Applications and using the Services, You agree to be legally bound by these Terms of Service.
1. The Service
Access and Use – On the terms and conditions provided by these Terms, You may access and use the Service through the Applications during the Service Term (as defined below) only for Your internal business purposes, including in connection with providing health and wellness services to Your Customers, subject to the terms and conditions of this Agreement and all applicable local, state, national and international laws, rules and regulations. Vivaliti will use reasonable commercial efforts to ensure that the Services are available at all times, however, You acknowledge and agree that the Services may not be available at certain times due to scheduled or unscheduled maintenance and/or updates or other reasons beyond the control of Vivaliti. Since You will receive the Services via third party telecommunications networks, You acknowledge that Vivaliti cannot guarantee that the availability of the Services will be uninterrupted or error free. Similarly, although we take Your privacy seriously and have put privacy measures in place, Vivaliti cannot guarantee that the transmission of any information over such telecommunications networks will be secure or that You will be able to access the Services at all times.
Restrictions and Limitations – If You comply with the terms and conditions of this Agreement, Vivaliti grants to You a non-exclusive, non-transferable, non-sublicenseable, fully revocable right to access and use the Applications, the Services and the Service Content, subject to the restrictions stated in this Section. You shall have no right to, and shall not, reverse engineer, decompile, copy, modify or create derivative works of or based on, sell, resell, display, distribute, disseminate, rent or lease, the Vivaliti Service, IP or Applications or any part thereof. Notwithstanding the foregoing, You may copy, print and use reports generated by the Vivaliti Service in accordance with the standard functionality of the Vivaliti Service.
Reservation of Rights – Proprietary Rights. You acknowledge and agree that a) the Services contain proprietary and confidential information that is protected by applicable intellectual property and other laws, b) content contained in information presented to You through the Services is protected by copyrights, trade secrets, trademarks, service marks, patents or other proprietary rights and laws and c) except as expressly provided herein, nothing contained in these Terms is intended or shall be construed as granting to You any rights in or to any such content.
User Accounts – You agree that Your account information will always be complete, accurate, and up-to-date. It is Your responsibility to keep Your account password or log-in credentials confidential at all times and You are solely responsible to Vivaliti for all activity that occurs via Your account. If You become aware of any unauthorized use of Your account or account Information, or any other breach of security, You agree to notify Vivaliti by contacting us at firstname.lastname@example.org. Vivaliti may require that You change Your account information or certain parts of Your account information at any time for any reason. Unless Vivaliti expressly allows You the right to create and manage multiple Vivaliti IDs as an account administrator for a company or unless expressly permitted in the Additional Terms, You may not use another person’s account information.
Communication and Privacy – By using the Services, You consent to receiving electronic communications from us. These electronic communications may include information concerning or related to the Services. These electronic communications are part of Your relationship with us. You agree that any notices, agreements, disclosures or other communications that we send You electronically will satisfy any legal communication requirements, including that such communications be in writing.
Medical Disclaimer – NO MEDICAL ADVICE: All information provided to You by Vivaliti is of a general nature and is furnished for Your knowledge and understanding only. Vivaliti’s SERVICES DO NOT PROVIDE PROFESSIONAL MEDICAL ADVICE. CONTENT ASSOCIATED WITH THE SERVICES, INCLUDING ANY PROGRAM MATERIALS, PROCESSES, EDUCATIONAL CONTENT, SHOULD NOT BE CONSTRUED AS OR USED AS A SUBSTITUTE OR REPLACEMENT FOR A PHYSICIAN’S MEDICAL OR HEALTH CARE ADVICE, PROFESSIONAL SERVICES, OR RECOMMENDATIONS. THIS SERVICE IS NOT INTENDED TO CONSTITUTE (I) THE PRACTICE OF MEDICINE OR THE PROVISION OF HEALTHCARE DIAGNOSIS OR TREATMENT, (II) THE CREATION OF A DOCTOR-PATIENT RELATIONSHIP, OR (III) AN ENDORSEMENT, RECOMMENDATION, OR SPONSORSHIP OF ANY PRODUCT OR SERVICE. THE DETERMINATION OF THE NEED FOR MEDICAL SERVICES AND THE TYPES OF HEALTHCARE TO PROVIDE A PATIENT ARE DECISIONS THAT SHOULD BE MADE ONLY BY A LICENSED HEALTHCARE PROVIDER. You acknowledge and agree that: a) You, and specifically not Vivaliti, are solely responsible for verifying the accuracy of all patient information and determining the data necessary for You to make medical and diagnostic decisions, as well as for complying with all laws, regulations and licensing requirements applicable to Your delivery of healthcare services and b) the Service does not make any medical, clinical or other conclusions and is not a substitute for competent, properly trained and knowledgeable staff who bring professional judgment and analysis to the information presented by the Services.
2. User Data
Protection and Privacy of Your User Data – Password. When You sign up for an account via our website You will either be asked to choose a password or a password will be provided to You. You are entirely responsible for maintaining the confidentiality of Your password. You agree not to use the account, username, email address or password of another Member at any time or to disclose Your password to any third party. You agree to notify us immediately if You suspect any unauthorized use of Your account or access to Your password. You are solely responsible for any and all use of Your account.
License to Customer Data – Please refer to the Business Associate Agreement between you and Vivaliti, available on our website at www.Vivaliti.com, for information about our use and disclosure obligations and the permitted uses and disclosures of Customers’ protected health information.
3. Fees and Payment Terms
Service Fees – All service fees, training fees, and any other agreed upon fees will be outlined on the master subscription terms agreement signed between You and Vivaliti.
Monthly Subscription: If you are a monthly subscriber of the Services, You will be charged a monthly fee each month for unlimited use of the Services. You agree and acknowledge that your subscription has an initial and recurring payment charge at the then-current subscription rate and you accept responsibility for all recurring charges prior to cancellation. Your subscription will be automatically renewed for successive monthly periods and your payment method will automatically be charged for each successive monthly period at the then-current subscription rate until you cancel your subscription.
Yearly Subscription: If you are a yearly subscriber of the Services, You will be charged a once per year fee at the then-current yearly subscription rate for unlimited use of the Services for 365 days from the date of your initial payment. Your subscription will be automatically renewed at the end of the year that was previously paid. Your payment method will automatically be charged for each successive yearly period at the then-current subscription rate unless you notify us at least eight (8) days prior to the renewal date of your intention to cancel your subscription.
Billing – You agree to provide a current, valid form of payment that will be kept on file and will be billed for usage of the Services from Your account periodically (i.e. monthly). All sales are final and all payments are non-refundable after payment has been processed. If we are unable to successfully charge Your credit or debit card for fees due, Vivaliti reserves the right to revoke or restrict access to Your account.
Cancellation At Any Time – You may terminate Your account with us at any time by providing us with written termination notice sent to email@example.com. Any payments already made to Vivaliti for use of the Service, set-up fees, training fees, certification fees, etc. are non-refundable. You will not be eligible for a prorated refund of any portion of fees paid for any unused days of the then-current term. Cancellation requests may take up to seven (7) days to process, thus cancellation requests must be received at least eight (8) days prior to your regular billing date to avoid being charged for another month in the case of monthly subscriptions, or for another year in the case of yearly subscriptions, of the Services.
4. Term, Termination and Modification of Service and Agreement
Term of Service and Termination – The Term of the Services (the “Service Term”) commences on the date You register and remains in effect for so long as You continue utilizing the Service. In the event that Your account becomes dormant (i.e. more than 60 days without using the Service) You agree that Vivaliti may terminate its Agreement with You and deactivate Your account. In that event, the effective Termination Date is the day that You last used the Services. Alternatively, You may terminate Your account with us at any time by providing us with written termination notice. After receipt of Your termination notice, Vivaliti will terminate Your Service account as soon as reasonably possible.
Termination by Company – Vivaliti may terminate Your account and access to the Services in the event that (a) You breach or violate these Terms and You fail to cure such breach within 10 days following written notice from Vivaliti, (b) Your account becomes inactive or (c) You engage in any fraudulent or illegal activities in connection with Your use of and/or access to the Services or (d) for any legal reason. Termination of Your Vivaliti account includes: removal of access to all offerings within the Services and deletion of Your password and all related user information, but not necessarily any User Data, files or content associated with or inside Your account (or any part thereof).
Effect of Termination – Upon any termination of the Service by You or Vivaliti, You understand and acknowledge that Vivaliti will have no further obligation to provide any Service or access thereto nor any obligation to refund, return or credit any amounts paid or payable to Vivaliti. Vivaliti is not liable to You or any third party for termination of any Service or termination of Your use of the Service or the Applications. Customer Data – Please refer to the Business Associate Agreement between you and Vivaliti, available on our website at www.Vivaliti.com, for information about our use and disclosure obligations and the permitted uses and disclosures of Customers’ protected health information and how it all relates to termination of the Services. Survival – Upon any termination of the Service, sections 1 (related to Reservation of Rights), section 2 (related to License to User Data), section 3 (Fees and Payment Terms), section 4 (related to Term, Termination and Effect of Termination) and sections 6 through 9 of this Agreement shall survive and remain in full force and effect. To reiterate, any of Your obligations to Vivaliti under this Agreement which have accrued prior to such termination shall survive such termination and remain in full force and effect. All other provisions of this agreement shall terminate upon such termination of the Service and shall thereupon be of no force or effect.
5. Modifying the Vivaliti Service or Terms
6. Warranty Disclaimer and Member Responsibility
You are Solely Responsible for Your Customers – Vivaliti disclaims any responsibility or liability as it relates to Your Customers and their use of the Vivaliti Service with respect thereto. You are responsible for any support, training and communication with and for Your Customers with respect to the Vivaliti Service. You are also responsible for ensuring Your Customers comply with these Terms with respect to their use of the Vivaliti Service and any breach by such Customers of such terms and conditions shall be deemed a breach by You hereof.
Services Provided are “As Is”; Assumption of Risk – Your use of the Services serves as acknowledgment of Your assumption of the risks from the use of any research studies, data, publications, reports or other information provided through the Vivaliti Service, whether or not it originated from third party sources (collectively, the “Vivaliti Service Content”). You agree that Vivaliti will not be liable or responsible for any damages, liabilities, costs, harms, business disruptions or expenditures of any kind that may arise from or in connection with Your use or application of any Vivaliti Service Content. All Vivaliti Service Content is provided for Your convenience only on an “as is” basis without warranty or guarantee of any kind and Your use of or reliance upon it is solely Your responsibility and at Your sole risk. Moreover, no analyses, reports or other information provided by the Vivaliti Service is intended to be medical advice, medical diagnosis or instructions for treatment.
Disclaimer of Warranties – THIS SECTION WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. Vivaliti PROVIDES THE SERVICES ON AN “AS IS” AND “AS AVAILABLE” BASIS AND GRANTS NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO THE SERVICES OR THE APPLICATIONS (INCLUDING ALL INFORMATION CONTAINED THEREIN), INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. Vivaliti DOES NOT WARRANT THAT YOUR USE OF THE SERVICES WILL BE SECURE, UNINTERRUPTED, ALWAYS AVAILABLE, ERROR OR OMISSION-FREE, ACCURATE OR WILL MEET YOUR REQUIREMENTS, OR THAT ANY DEFECTS IN THE SERVICES WILL BE CORRECTED. Vivaliti DISCLAIMS LIABILITY FOR, AND NO WARRANTY IS MADE WITH RESPECT TO, THE CONNECTIVITY AND AVAILABILITY OF THE SERVICES.
You agree to defend, indemnify, and hold Vivaliti, its officers, directors, employees and agents, harmless from and against any and all claims, liabilities, damages, losses, and expenses (including reasonable attorney’s fees and costs), arising out of or in any way connected with (i) Your access to or use of the Vivaliti Service, Applications, Vivaliti Service Content and User Data; (ii) Your violation of any term of this Agreement; (iii) Your violation of any applicable laws, rules or regulations in connection with Your use of the Vivaliti Service or Vivaliti Service Content or User Data; (iv) any User Data submitted, posted, uploaded or provided by You; (v) any claim, action or proceeding brought by or for any Members; or (vi) Your violation of any third party right, including without limitation any intellectual property, publicity, confidentiality, property or privacy right in connection with Your use of the Vivaliti Service or any Vivaliti Service Content or User Data.
8. Limitation of Liability
Your use of the Services is at Your own risk. The Services and information included therein are provided on an “as is” basis. WE AND OUR LICENSORS, INCLUDING VIVALITI WELLNESS, GM PARTNERS, HEALTHY LIFE ENTERPRISES INC, AND SUPPLIERS, TO THE FULLEST EXTENT PERMITTED BY LAW, DISCLAIM ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY, NON-INFRINGEMENT OF THIRD PARTIES’ RIGHTS, FITNESS FOR PARTICULAR PURPOSE AND THAT THE SERVICES WILL MEET YOUR REQUIREMENTS. UNDER NO CIRCUMSTANCES SHALL VIVALITI OR ITS SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS AND LICENSORS BE HELD LIABLE FOR ANY DELAY OR FAILURE IN PERFORMANCE RESULTING DIRECTLY OR INDIRECTLY FROM ACTS OF NATURE, FORCES, OR CAUSES BEYOND ITS REASONABLE CONTROL, INCLUDING, WITHOUT LIMITATION, INTERNET FAILURES, COMPUTER EQUIPMENT FAILURES, TELECOMMUNICATION EQUIPMENT FAILURES, OTHER EQUIPMENT FAILURES, ELECTRICAL POWER FAILURES, STRIKES, LABOR DISPUTES, RIOTS, INSURRECTIONS, CIVIL DISTURBANCES, SHORTAGES OF LABOR OR MATERIALS, FIRES, FLOODS, STORMS, EXPLOSIONS, ACTS OF GOD, WAR, GOVERNMENTAL ACTIONS, ORDERS OF DOMESTIC OR FOREIGN COURTS OR TRIBUNALS, OR NON-PERFORMANCE OF THIRD PARTIES. Without limiting the foregoing, we, our licensors, and our suppliers make no representations or warranties about the following: (1) The accuracy, reliability, completeness, currentness, or timeliness of the Services or information contained therein. (2) The satisfaction of any government regulations requiring disclosure of information on prescription drug products or the approval or compliance of any software tools available through the Services. In no event will we, our licensors, our suppliers, or any third parties mentioned on our website(s) be liable for any damages (including, without limitation, incidental, consequential and special damages, personal injury/wrongful death, lost profits for sequence, accuracy or completeness of information included in the Services, or damages resulting from lost data or business interruption) resulting from the use of, misuse of, inability to use or interpretation of the information contained in the Services or information contained therein, whether based on warranty, contract, tort, or any other legal theory, and whether or not we, our licensors, our suppliers, or any third parties mentioned within the Services are advised of the possibility of such damages. We, our licensors, our suppliers, or any third parties mentioned within the Services shall be liable only to the extent of actual damages incurred by You, not to exceed $100USD. We, our licensors, our suppliers, or any third parties mentioned within the Services are not liable for any personal injury, including death, caused by Your or Your patients’ use or misuse of the Services or any information contained therein. Any claims arising in connection with Your use of the Services must be brought within one (1) year of the date of the event giving rise to such action occurred. Remedies under these Terms of Service are exclusive and are limited to those expressly provided for in these Terms of Service.
9. General Provisions
In the event it becomes necessary to retain the services of legal counsel to enforce these Terms of Service or Your Service Agreement, the prevailing party shall be entitled to recover reasonable attorneys’ fees, including appellate and post-judgment, from the non-prevailing party.
You agree not to assign any rights or delegate any obligations hereunder, without the prior written consent of Company. Any purported assignment or delegation by You without the appropriate prior written consent of Company will be null and void. Company may assign the Agreement or any rights hereunder without Your consent.
These Terms and the relationship between You and Company shall be governed by the laws of the State of Florida, without regard to its conflict of law provisions, rules and principles. You hereby agree that the state and federal courts of Miami Dade or Broward Counties, Florida shall have jurisdiction and venue to resolve disputes under or with respect to these Terms and You hereby consent to such jurisdiction and venue. You agree that regardless of any statute or law to the contrary, any claim or cause of action brought by You arising out of or related to use of the Vivaliti Services or the Terms must be filed within one (1) year after such claim arose or be forever barred. EACH OF THE PARTIES HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION (INCLUDING, BUT NOT LIMITED TO, ANY CLAIMS, COUNTERCLAIMS, CROSS-CLAIMS, OR THIRD PARTY CLAIMS) ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT. EACH OF THE PARTIES ACKNOWLEDGES THAT THIS SECTION IS A MATERIAL INDUCEMENT FOR THE OTHER PARTY ENTERING INTO THIS AGREEMENT.
The failure of Company to exercise or enforce any right, remedy or provision of the Terms shall not constitute a waiver of such right, remedy or provision. If any provision of these Terms are found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision to the full extent consistent with applicable law, and the other provisions of these Terms shall remain in full force and effect.
You may refer to yourself and business as a Vivaliti or Vivaliti DNA approved provider while your account balance is paid in full and no outstanding conditions or fees are active. However, You and Company are independent contractors and no agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by these Terms.
The section titles throughout these Terms are for convenience only and have no legal or contractual effect.
The Vivaliti Service may be subject to United States export laws and regulations, and foreign equivalents (which may include restrictions on destinations, end users and end use), and You agree to comply with all such applicable laws and regulations.
Company may provide notices to You with respect to the Terms or the Vivaliti Service by posting such notices on the Vivaliti Applications, to Your Vivaliti Service account or by sending them to the e-mail address or other contact address You provide upon sign-up, registration or setting up Your account. Any such notices shall be deemed properly and timely given to You hereunder. You consent to the use of: (a) electronic means to provide You with any notices given pursuant to this Agreement; and (b) electronic records to store information related to these Terms or Your use of the Vivaliti Service and the Applications.
For questions about these Terms of Service, please send an email to firstname.lastname@example.org
Copyright © 2015-2018 Vivaliti DNA, LLC. All Rights Reserved. VIVALITI and certain other marks, colors, and images are common law trademarks of Vivaliti DNA, LLC.