Terms of Use Agreement


Effective October 12, 2020

PLEASE READ THIS TERMS OF USE AGREEMENT (THE “TERMS OF USE”) CAREFULLY. THE VIVANTE WEBSITE LOCATED AT WWW.VIVANTEHEALTH.COM (THE “WEBSITE”), THE GITHRIVE PLATFORM (THE “PLATFORM”) AND GITHRIVE MOBILE APPLICATION (THE “APPLICATION” AND, TOGETHER WITH THE WEBSITE AND PLATFORM, THE “OFFERING”) AND THE INFORMATION ON THE OFFERING ARE PROVIDED BY VIVANTE HEALTH, INC. (“VIVANTE,” “WE”, “OUR”). THESE TERMS OF USE TOGETHER WITH OUR PRIVACY POLICY (THE “PRIVACY POLICY,” LOCATED AT [URL]) GOVERN THE USE OF THE OFFERING AND APPLY TO ALL USERS VISITING THE OFFERING OR USING THE OFFERING IN ANY WAY, INCLUDING USING THE SERVICES AND RESOURCES AVAILABLE OR ENABLED VIA THE OFFERING (THE “RESOURCES” AND, TOGETHER WITH THE OFFERING, THE “SERVICES”). BY CLICKING ON THE “I ACCEPT” BUTTON, COMPLETING THE REGISTRATION PROCESS, AND/OR BROWSING THE WEBSITE OR DOWNLOADING THE APPLICATION, YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THE TERMS OF USE AND (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH VIVANTE. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS OF USE, YOU MAY NOT ACCESS OR USE THE SERVICES.

THE SERVICES ARE NOT INTENDED FOR EMERGENCY USE. IF YOU ARE EXPERIENCING A MEDICAL OR MENTAL HEALTH EMERGENCY, YOU SHOULD IMMEDIATELY CALL “911” OR GO TO THE NEAREST OPEN CLINIC OR EMERGENCY ROOM.

Your use of, and participation in, certain Services may be subject to additional terms (“Supplemental Terms”) and such Supplemental Terms will either be listed in the Terms of Use or will be presented to you for your acceptance when you sign up to use the supplemental Service. The Terms of Use, Privacy Policy, and any applicable Supplemental Terms are referred to herein as the “Agreement.”

PLEASE NOTE THAT The Agreement IS subject to change by Vivante in its sole discretion at any time. When changes are made, Vivante will make a new copy of the Terms of Use Agreement or, as applicable, Supplemental Terms available at the Website and/or within the Application, although the new Supplemental Terms may instead be made available from within, or through, the affected Service on the Website or Application.

Any changes to the Agreement will be effective immediately for new users of the Services and will be effective thirty (30) days after posting notice of such changes on the Website or Application for existing Registered Users, provided that any material changes shall be effective for Registered Users who have an Account with us upon the earlier of thirty (30) days after posting notice of such changes on the Website or Application or thirty (30) days after dispatch of a notice via e-mail or the Offering of such changes to Registered Users (as defined below). If you do not agree to any change(s) after receiving a notice of such change(s), you shall stop using the Services. Otherwise, your continued use of the Services constitutes your acceptance of such change(s). PLEASE REGULARLY CHECK THE WEBSITE AND APPLICATION TO VIEW THE THEN-CURRENT TERMS.

1. OUR SERVICES

1.1 Digestive Health Services

Our Services include resources and services to assist in improving digestive health, including providing lifestyle and nutrition advice, monitoring and individualized rapid assistance from coaches (“GIThive Services”). Our GIThrive Services include interactions between you and our coaches and dieticians (“Our Team”) through different means, including the Remote Platform (defined below). Your interactions with Our Team are not intended to offer or serve as a substitute for professional medical or mental health services, except with regard to the nutritional advice provided by our certified dietitians. While our GIThrive Services will provide access to certain digestive health information and help you communicate with Our Team, we make no representation or warranty whatsoever as to (1) the accuracy of the information provided pursuant to the Services; or (2) whether you will find the GIThrive Services, including coaching, relevant, useful, correct, satisfactory or suitable to your needs. Please consult your physician or other qualified health care provider before using the Services. Use of the Services should not replace your good judgment and common sense.

1.2 Disclaimer

YOU ACKNOWLEDGE THAT SOME OF THE CONTENT THAT IS PROVIDED THROUGH THE GITHRIVE SERVICES MAY BE PROVIDED BY INDIVIDUALS IN THE MEDICAL OR LICENSED MENTAL HEALTH PROFESSIONS, HOWEVER, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE PROVISION OF SUCH INFORMATION DOES NOT CREATE A PROFESSIONAL/PATIENT RELATIONSHIP, AND, EXCEPT WITH RESPECT TO MEDICAL NUTRITIONAL THERAPY, DOES NOT CONSTITUTE AN OPINION, PROFESSIONAL ADVICE OR DIAGNOSIS OR TREATMENT OF ANY PARTICULAR CONDITION, BUT IS PROVIDED TO ASSIST YOU IN IMPROVING YOUR RECOVERY MANAGEMENT. YOUR INTERACTIONS WITH OUR TEAM THROUGH THE OFFERINGS ARE NOT INTENDED TO BE A SUBSTITUTE FOR ANY OTHER HEALTH CARE PROVIDER ADVICE, DIAGNOSIS, OR TREATMENT.

1.3 User’s Sole Responsibility for Health & Healthcare Providers

It is your responsibility to seek the advice of a physician or other qualified health care provider or professional for your medical and mental health needs. You should never rely on, or make health or well-being decisions based on your use of the GIThrive Services, under no circumstances can the GIThrive Services replace medical or mental health services rendered by your health care provider. You should not change your treatment or plan of care, medication or therapy based on information you received through the GIThrive Services. Conversations with Our Team are not a substitute for care provided by your health care provider. Never disregard, avoid, or delay obtaining medical advice from a qualified health care provider because of information from our GIThrive Services. If you receive advice from a qualified health care provider which conflicts with anything contained in our GIThrive Services, you should adhere to the advice from the qualified health care provider and consult them before continuing use of our GIThrive Services.

The GIThrive Services, Remote Platform (as defined below) and related personnel may give you access to or recommend outside health care providers (collectively, “Partner Providers”), including registered nurses who are able to provide advice directly or through the Remote Platform (as defined below). Such Partner Providers are not employees, representatives or agents of Vivante, and it is your responsibility to determine the right Partner Provider for you. You are responsible for selecting and agreeing to the Partner Providers that you see fit. If you decide to engage with such independent health care providers, you will have a direct relationship with them and Vivante is not responsible for, and shall not be held liable for, their advice, any aspect of their treatment or payment for services the Partner Providers provide you and you are responsible for any payments that may be required.


2. REMOTE CONNECTIVITY FEATURES

2.1 Remote Platform

Our Services may include interactive audio and video technology that allows you to connect with independent third-party Partner Providers or Our Team, where you and such individuals are not in the same physical location (the “Remote Platform”).

Regarding your interaction with PartnerProviders, Vivante’s role is limited to offering you the convenience of interacting with such health care providers using the Remote Platform. In any event, such relationships are not intended to replace a primary care physician relationship, primary outpatient therapist, or be your permanent health care home. You should seek emergency help or follow-up care when recommended by Our Team, your Partner Provider or when otherwise needed.

2.2 Remote Platform Disclosures

Please note that while the Remote Platform can improve the convenience and accessibility of communicating with Partner Providers or Our Team, there are potential risks associated with its use. These risks include, but may not be limited to:

  • (a) Internet connectivity may not be sufficient to allow for appropriate communication with the Partner Provider or Our Team;
  • (b) Individuals not in the session may view and/or hear your session information by eavesdropping, leading to breaches in confidentiality; and
  • (c) Failures of the electronic equipment or video conferencing could cause delays in the session, evaluation or treatment.

Although we incorporate network and software security protocols that are designed to protect the privacy and security of health information, in some instances, security protocols could fail, causing a breach of privacy of personal health information.

By accepting this Agreement and deciding to engage the Remote Platform, you acknowledge and agree that you are aware of these limitations and agree to assume the risk of these limitations. Furthermore, you agree and accept that:

  • (a) Any diagnosis you may receive from Our Team or a Partner Provider is limited and, in some cases, provisional;
  • (b) The health care services are not intended, in all cases, to replace a full medical evaluation or an in-person visit with a health care provider;
  • (c) Our Team and/or Partner Providers, acting through the Remote Platform, may not have important information that is usually obtained through a “hands-on” physical examination;
  • (d) The absence of a physical or in-person examination may affect Our Team’s or a Partner Provider’s ability to diagnose any potential condition, disease or injury;
  • (e) You understand that you may expect the anticipated benefits from the use of telehealth in your care, but that no results can be guaranteed or assured;
  • (f) Our Team or a Partner Provider may determine that the Remote Platform is not appropriate for some or all of your treatment needs, and accordingly may elect not to provide health care services to you through the Remote Platform.

If you do not accept and agree to be bound by this consent to the Remote Platform, you are not authorized to access or otherwise use the Remote Platform.


3. YOUR RELATIONSHIP WITH VIVANTE

The resources made available through our Services are not a substitute for direct in-person health care services. The decision to focus on diagnosis, treatment recommendations, or both, rests with you and your health care providers. You understand that by coordinating and in certain cases consulting with Our Team and Partner Providers through the Remote Platform, you are not entering into a provider-patient relationship with Vivante.

By accepting this Agreement, you agree and consent to Vivante, Vivante’s employees, including our coaches and dietitians (i) accessing and using your insurance plan, which may include health information, to render the Services; (ii) sending insurance claims to your health plan or referrals to health care providers (including facilitating your information to health care providers to obtain health plan pre-authorizations), as applicable; and (iii) using, processing and disclosing your personal information as described in the Privacy Policy at https://vivantehealth.com/privacy-policy/.


4. PRIVACY

Information regarding our use of health and other personal information is provided in our Vivante Privacy Policy located at https://vivantehealth.com/privacy-policy/

You consent to all actions we take with respect to your information consistent with the Vivante Privacy Policy.


5. USE OF THE SERVICES AND VIVANTE OFFERINGS

The Services, and the information and content available through them (as these terms are defined herein) (each, a “Vivante Offering” and collectively, the “Vivante Offerings”) are protected by copyright laws and other intellectual property rights throughout the world. Subject to the Agreement, Vivante grants you a limited license to reproduce portions of Vivante Offerings for the sole purpose of using the Services for your internal personal purposes. Unless otherwise specified by Vivante in a separate license, your right to use any and all Vivante Offerings is subject to the Agreement.

5.1 Application License

Subject to your compliance with the Agreement, Vivante grants you a limited non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use a copy of the Application on a single mobile device or computer that you own or control and to run such copy of the Application solely for your own internal personal purposes. Furthermore, with respect to any Application accessed through or downloaded from the Apple App Store (an “App Store Sourced Application”), you will only use the App Store Sourced Application (a) on an Apple-branded product that runs the iOS (Apple’s proprietary operating system) and (b) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service. Notwithstanding the first sentence in this section, with respect to any Application access through or downloaded from the Google Play store (a “Google Play Sourced Application”), you may have additional license rights with respect to use of the Application on a shared basis within your designated family group.

5.2 Updates

You understand that Vivante Offerings are evolving. As a result, Vivante may require you to accept updates to Vivante Offerings that you have installed on your computer or mobile device. You acknowledge and agree that Vivante may update Vivante Offerings with or without notifying you. You may need to update third-party software from time to time in order to use Vivante Offerings.

5.3 Certain Restrictions

The rights granted to you in the Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit Vivante Offerings or any portion of Vivante Offerings, (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other Vivante Offerings (including images, text, page layout or form); (c) you shall not use any metatags or other “hidden text” using Vivante’s name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of Vivante Offerings except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Website (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Website for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) you shall not access Vivante Offerings in order to build a similar or competitive website, application or service; (g) except as expressly stated herein, no part of Vivante Offerings may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (h) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in Vivante Offerings. Any future release, update or other addition to Vivante Offerings shall be subject to the Agreement. Vivante, its suppliers and service providers reserve all rights not granted in the Agreement. Any unauthorized use of any Vivante Offering terminates the licenses granted by Vivante pursuant to the Agreement.

5.4 Vivante Communications

By entering into this Agreement or using the Vivante Offerings, you agree to receive communications from us, including via e-mail, text message, calls, and push notifications. You agree that texts, calls or prerecorded messages may be generated by automatic telephone dialing systems. Communications from us may include but are not limited to (a) operational communications concerning your Account, or disclosures, notices, messages, reports, and other communications regarding our GIThrive Services (“Care Communications”). Standard text messaging charges applied by your cell phone carrier will apply to text messages that we send. IF YOU WISH TO OPT OUT OF EMAILS, CALLS OR TEXTS, WE WILL PROVIDE YOU WITH THE MEANS TO DO SO, PLEASE CONTACT US AT [email protected] YOU ACKNOWLEDGE THAT YOU ARE NOT REQUIRED TO CONSENT TO RECEIVE TEXTS OR CALLS AS A CONDITION OF USING THE VIVANTE OFFERINGS OR RELATED SERVICES. HOWEVER, YOU ACKNOWLEDGE THAT OPTING OUT OF RECEIVING ALL TEXTS MAY IMPACT YOUR USE OF THE VIVANTE OFFERINGS OR RELATED SERVICES.

It is your responsibility to monitor Care Communications. You acknowledge and agree that you will not hold Vivante liable for any loss, injury, or claim of any kind resulting from your failure to read these Care Communications or for your failure to follow any recommendations contained in these Care Communications.


6. Registration

6.1 Registering Your Account

In order to access certain features of Vivante Offerings you may be required to become a Registered User. For purposes of the Agreement, a “Registered User” is a user who has registered an account on the Website or Application (“Account”).

6.2 Registration Data

In registering an account, you agree to (a) provide true, accurate, current and complete information about yourself as prompted by the registration form (the “Registration Data”); and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You represent that you are (l) at least eighteen (18) years old (or are at least thirteen (13) years old and have your parent or legal guardian’s consent); (m) of legal age to form a binding contract; and (n) not a person barred from using Vivante Offerings under the laws of the United States, your place of residence or any other applicable jurisdiction. You are responsible for all activities that occur under your Account. You agree that you shall monitor your Account to restrict use by minors, and you will accept full responsibility for any unauthorized use of Vivante Offerings by minors. You may not share your Account or password with anyone, and you agree to (y) notify Vivante immediately of any unauthorized use of your password or any other breach of security; and (z) exit from your Account at the end of each session. If you provide any information that is untrue, inaccurate, not current or incomplete, or Vivante has reasonable grounds to suspect that any information you provide is untrue, inaccurate, not current or incomplete, Vivante has the right to suspend or terminate your Account and refuse any and all current or future use of Vivante Offerings (or any portion thereof). You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. You agree that you shall not have more than one Account at any given time. Vivante reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third party that a username violates the third party’s rights. You agree not to create an Account or use Vivante Offerings if you have been previously removed by Vivante, or if you have been previously banned from any of Vivante Offerings.

6.3 Your Account

Notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in your Account, and you further acknowledge and agree that all rights in and to your Account are and shall forever be owned by and inure to the benefit of Vivante.

6.4 Necessary Equipment and Software

You must provide all equipment and software necessary to connect to Vivante Offerings, including but not limited to, a mobile device that is suitable to connect with and use Vivante Offerings, in cases where the Services offer a mobile component. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing Vivante Offerings.


7. RESPONSIBILITY FOR CONTENT; YOUR CONTENT

You acknowledge that all information, data, text, photographs, graphics, video, messages, tags and/or other materials accessible through Vivante Offerings (collectively, “Content”), including Vivante Offerings, is the sole responsibility of the party from whom such Content originated. This means that you, and not Vivante, are entirely responsible for all Content that you provide to Vivante on or through the Services, whether by direct entry, submission, email or otherwise (“Your Content”), including, but not limited to, data, questions, comments, or suggestions.


8. OWNERSHIP

8.1 Vivante Offerings

You agree that Vivante and its suppliers own all rights, title and interest in Vivante Offerings (including but not limited to, any videos, titles, computer code, themes, objects, dialogue, artwork, animations, sounds, audiovisual effects, methods of operation, chat transcripts, documentation, and software). You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying any Vivante Offerings.

8.2 Trademarks

Vivante, GIThrive, and all related graphics, logos, service marks and trade names used on or in connection with any Vivante Offerings or in connection with the Services are the trademarks of Vivante or its licensors and may not be used without permission in connection with your or any third-party products or services. Other trademarks, service marks and trade names that may appear on or in Vivante Offerings are the property of their respective owners.

8.3 Other Content

You agree that you have no right, title, or interest in or to any Content that appears on or in Vivante Offerings.

8.4 Feedback

You agree that submission of any ideas, suggestions, documents, and/or proposals to Vivante through its suggestion, feedback, wiki, forum or similar pages (“Feedback”) is at your own risk and that Vivante has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Vivante a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of Vivante Offerings and/or Vivante’s business. Vivante Health will not use your name or likeness in association with any Feedback for any promotional purposes without additional consent.


9. USER CONDUCT

9.1 Prohibited Actions

As a condition of use, you agree not to use Vivante Offerings for any purpose that is prohibited by this Agreement or by applicable law. You shall not (and shall not permit any third party) either take any action that: (i) infringes any other party’s rights; (ii) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, or profane; (iii) impersonates any person or entity, including any employee or representative of Vivante; (iv) interferes with or attempt to interfere with the proper functioning of Vivante Offerings or uses Vivante Offerings in any way not expressly permitted by this Agreement; or (v) attempts to engage in or engage in, any potentially harmful acts that are directed against Vivante Offerings.

9.2 Monitoring and Enforcement

Vivante reserves the right to: (a) take any action with respect to any of your Content that we deem necessary or appropriate in our sole discretion, including if we believe that such Content violates this Agreement, infringes any property right or other right of any person or entity, threatens the personal safety of users of the Vivante Offerings or the public, or could create liability for Vivante; (b) take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Vivante Offerings; and/or (c) terminate or suspend your access to all or part of the Vivante Offerings for any or no reason, including without limitation, any violation of this Agreement. If Vivante becomes aware of any possible violations by you of the Agreement, Vivante reserves the right to investigate such violations. If, as a result of the investigation, Vivante believes that criminal activity has occurred, Vivante reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. Vivante is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in Vivante Offerings to (a) comply with applicable laws, legal process or governmental request; (b) enforce this Agreement, (c) respond to any claims that Your Content violates the rights of third parties, (d) respond to your requests for customer service, or (e) protect the rights, property or personal safety of Vivante, its Registered Users or the public, and all enforcement or other government officials, as Vivante in its sole discretion believes to be necessary or appropriate.


10. THIRD-PARTY SERVICES

10.1 Third-Party Websites and Applications

Vivante Offerings may contain links to third-party websites (“Third-Party Websites”) and applications (“Third-Party Applications”). When you click on a link to a Third-Party Website or Third-Party Application, we will not warn you that you have left Vivante Offerings and are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Websites and Third-Party Applications are not under the control of Vivante. Vivante is not responsible for any Third-Party Websites or Third-Party Applications. Vivante provides these Third-Party Websites and Third-Party Applications only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Websites or Third-Party Applications, or any product or service provided in connection therewith. You use all links in Third-Party Websites and Third-Party Applications at your own risk. When you leave our Website, the Agreement and policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Websites or Third-Party Applications, and make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.

10.2 App Stores

You acknowledge and agree that the availability of the Application and the Services is dependent on the third party from whom you received the Application license, e.g., the Apple App Store or Google Play (each, an “App Store”). You acknowledge that the Agreement is between you and Vivante and not with the App Store. As between Vivante, and the App Store, Vivante, not the App Store, is solely responsible for Vivante Offerings, including the Application, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use the Application, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with Vivante Offerings, including the Application. You agree to comply with, and your license to use the Application is conditioned upon your compliance with all terms of agreement imposed by the applicable App Store when using any Vivante Offering, including the Application. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of the Agreement and will have the right to enforce it.


11. Fees

11.1 Fees

  • (a) Access Through Employers or Insurance Companies. Our Services may be available to you through your employer, as an employer sponsored benefit, or through your health care insurance, as a health care policy benefit (collectively “Benefits”). If that is the case, your employers or health insurance may be paying our Services’ fees for making the Services available to you. If our health insurance is paying our Service’s fees, you may be subject to costs or fees, including copay obligations. If you lose your Benefits we may terminate the Services as set forth in Section 15 or we may choose to offer you the ability to enroll in Direct Access to the Services as described in Section 11.(b). If you elect to access or use Services or features subject to fees, you agree to pay all applicable fees as described in those Services.
  • (b) Direct Access. We may decide to make our Services available to individuals outside the scope of Benefits (“Direct Access”), in which case you will be directly responsible for paying the fees for our Services, and agree to do so. We may not offer our Services via Direct Access, in which case all Services shall terminate when the agreement between Vivante and your employer, with respect to the Services, is terminated.
  • (c) Changes in Fees. We reserve the right to change our price lists in the future and to institute new charges going forward at any time by providing prior notice to you. We may provide this notice by email or by positing it in the Services. You acknowledge that if you access or use Services subject to fees following that notification, you accept the new or increased charges.

12. INDEMNIFICATION

You agree to indemnify and hold Vivante and each of their parents, subsidiaries, affiliates, officers, employees, agents, partners, suppliers, and licensors (each, a “Vivante Party” and collectively, the “Vivante Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of any and all of the following: (a) Your Content; (b) your use of, or inability to use, any Vivante Offering ; (c) your violation of the Agreement; or (d) your violation of any applicable laws, rules or regulations. Vivante reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with the Vivante Parties in asserting any available defenses. This provision does not require you to indemnify any of the Vivante Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Website or any Services provided hereunder. You agree that the provisions in this section will survive any termination of your Account, the Agreement and/or your access to Vivante Offerings.


13. DISCLAIMER OF WARRANTIES AND CONDITIONS

13.1 As Is

YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF VIVANTE OFFERINGS IS AT YOUR SOLE RISK, AND VIVANTE OFFERINGS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. VIVANTE PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARISING FROM USE OF THE SERVICES.

  • (a) TO THE FULLEST EXTENT PERMITTED BY LAW, VIVANTE PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) VIVANTE OFFERINGS WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF VIVANTE OFFERINGS WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (3) THE INFORMATION THAT MAY BE OBTAINED FROM USE OF VIVANTE OFFERINGS WILL BE ACCURATE OR RELIABLE.
  • (b) THE CONTENT AND INFORMATION PROVIDED ON THE VIVANTE OFFERINGS ARE DESIGNED FOR INFORMATIONAL PURPOSES ONLY. WITH THE EXCEPTION OF NUTRITIONAL ADVICE GIVEN BY OUR LICENSED OR CERTIFIED DIETICIANS, VIVANTE DOES NOT PROVIDE MEDICAL OR MENTAL HEALTH ADVICE. NOTHING STATED OR POSTED ON THE VIVANTE OFFERINGS OR AVAILABLE THROUGH THE GITHRIVE SERVICES, WITH THE EXCEPTION OF NUTRITIONAL ADVICE GIVEN BY OUR LICENSED OR CERTIFIED DIETICIANS, IS INTENDED TO BE, AND MUST NOT BE TAKEN TO BE, INSTRUCTIONAL FOR MEDICAL DIAGNOSIS OR TREATMENT OR A SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT. IF YOU RELY ON ANY CONTENT OBTAINED THROUGH THE VIVANTE OFFERINGS, YOU DO SO AT YOUR OWN RISK.
  • (c) THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. VIVANTE MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES.
  • (d) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM VIVANTE OR THROUGH VIVANTE OFFERINGS WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
  • (e) From time to time, Vivante may offer new “beta” features or tools with which its users may experiment. Such features or tools are offered solely for experimental purposes and without any warranty of any kind, and may be modified or discontinued at Vivante’s sole discretion. The provisions of this section apply with full force to such features or tools.

13.2 No Liability for Conduct of Third Parties

YOU ACKNOWLEDGE AND AGREE THAT VIVANTE PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD VIVANTE PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING THIRD PARTY NURSES OR OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF BODILY HARM OR ECONOMIC DAMAGES FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.


14. LIMITATION OF LIABILITY

14.1 Disclaimer of Certain Damages

YOU UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT SHALL VIVANTE PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, IN EACH CASE WHETHER OR NOT VIVANTE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT, ON ANY THEORY OF LIABILITY, RESULTING FROM: (1) THE USE OR INABILITY TO USE VIVANTE OFFERINGS; (2) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH VIVANTE OFFERINGS; (3) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (4) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON VIVANTE OFFERINGS; OR (5) ANY OTHER MATTER RELATED TO VIVANTE OFFERINGS, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A VIVANTE PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A VIVANTE PARTY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY A VIVANTE PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION. VIVANTE IS NOT RESPONSIBLE OR LIABLE FOR ANY ADVICE, COURSE OF TREATMENT, DIAGNOSIS OR ANY OTHER INFORMATION, SERVICES OR PRODUCTS THAT YOU MAY OBTAIN THROUGH THE SERVICES.

14.2 Cap on Liability

TO THE FULLEST EXTENT PROVIDED BY LAW, UNDER NO CIRCUMSTANCES WILL VIVANTE PARTIES BE LIABLE TO YOU FOR MORE THAN THE TOTAL AMOUNT PAID TO Vivante BY YOU OR on your behalf (BY YOUR EMPLOYER OR HEALTH INSURANCE PLAN) for the services provided to you during the one-month period prior to the act, omission or occurrence giving rise to such liability.

14.3 Exclusion of Damages

CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.

14.4 Basis of the Bargain

THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN VIVANTE AND YOU.


15. TERM AND TERMINATION

15.1 Term

The Agreement commences on the date when you accept them (as described in the preamble above) and remain in full force and effect while you use Vivante Offerings, unless terminated earlier in accordance with the Agreement.

15.2 Prior Use

Notwithstanding the foregoing, you hereby acknowledge and agree that the Agreement commenced on the earlier to occur of (a) the date you first used Vivante Offerings or (b) the date you accepted the Agreement and will remain in full force and effect while you use any Vivante Offerings, unless earlier terminated in accordance with the Agreement.

15.3 Termination of Services by Vivante

We may terminate your access to all or any part of the Services at any time, with or without cause, including but not limited to failure of you, your health insurance plan or your employer to make timely payments for the Services. If you have materially breached any provision of the Agreement, or if Vivante is required to do so by law (e.g., where the provision of the Website, the Application, or the Services is, or becomes, unlawful), Vivante has the right to, immediately and without notice, suspend or terminate any Services provided to you. You agree that all terminations for cause shall be made in Vivante’s sole discretion and that Vivante shall not be liable to you or any third party for any termination of your Account.

15.4 Termination of Services by You

If you want to terminate the Services provided by Vivante, you may do so by (a) notifying Vivante at any time and (b) closing your Account for all of the Services that you use. Your notice should be sent, in writing, to Vivante’s address set forth below.

15.5 Effect of Termination

Termination of any Service includes removal of access to such Service and barring of further use of the Service. Termination of all Services may also include deletion of your password and all related information, files and Content associated with or inside your Account (or any part thereof), including Your Content. Upon termination of any Service, your right to use such Service will automatically terminate immediately. You understand that any termination of Services may involve deletion of Your Content associated therewith from our live databases, subject to the terms of our [Privacy Policy]. Vivante will not have any liability whatsoever to you for any suspension or termination, including for deletion of Your Content. All provisions of the Agreement which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability. As noted in our Privacy Policy, we may keep and maintain aggregated and de-identified data regarding our users, including your use of the Services.

15.6 No Subsequent Registration

f your registration(s) with or ability to access Vivante Offerings is discontinued by Vivante due to your violation of any portion of the Agreement or for conduct otherwise inappropriate, then you agree that you shall not attempt to re-register with or access Vivante Offerings through use of a different member name or otherwise, and you acknowledge that you will not be entitled to receive a refund for fees related to those Vivante Offerings to which your access has been terminated. In the event that you violate the immediately preceding sentence, Vivante reserves the right, in its sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to you.


16. INTENDED FOR USE IN THE UNITED STATES

Vivante Offerings are controlled and offered by Vivante from its facilities in the United States of America and are intended for use only in the United States. Vivante makes no representations that Vivante Offerings are appropriate or available for use in other locations. Those who access or use Vivante Offerings from other countries do so at their own volition and are responsible for compliance with local law.


17. GENERAL PROVISIONS

17.1 Electronic Communications

The communications between you and Vivante may take place via electronic means, whether you visit Vivante Offerings or send Vivante e-mails, or whether Vivante posts notices on Vivante Offerings or communicates with you via e-mail. For contractual purposes, you (a) consent to receive communications from Vivante in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Vivante provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights, including but not limited to the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. §7001 et seq. (“E-Sign”).

17.2 Release

You hereby release Vivante Parties and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from your use of Vivante Offerings, including but not limited to, any interactions with or conduct of third-party websites of any kind arising in connection with or as a result of the Agreement or your use of Vivante Offerings. If you are a California resident or a resident of any jurisdiction with a similar requirement, you hereby waive California Civil Code Section 1542 or any similar law, rule, or regulation, which states in substance, “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.” The foregoing release does not apply to any claims, demands, or any losses, damages, rights and actions of any kind, including personal injuries, death or property damage for any unconscionable commercial practice by a Vivante Party or for such party’s fraud, deception, false, promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Website or any Services provided hereunder.

17.3 Assignment

The Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Vivante’s prior written consent, and any attempted assignment, subcontract, delegation, or transsfer in violation of the foregoing will be null and void. Vivante may assign or transfer any rights or obligations under this Agreement without your prior written consent as part of a corporate reorganization, or upon a change of control, consolidation, merger, sale of all or substantially all of its business or assets.

17.4 Force Majeure

Vivante shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, pandemic, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.

17.5 Questions, Complaints, Claims

If you have any questions, complaints or claims with respect to Vivante Offerings, please contact us at: [email protected] We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.

17.6 Exclusive Venue

Both you and Vivante agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in Houston, Texas.

17.7 Governing Law and Jurisdiction

The Terms, PRIVACY POLICY, and any action related thereto will be governed and interpreted by and under the laws of the State of NEW YORK without giving effect to any principles that provide for the application of the law of another jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to the AGREEMENT.

17.8 Notice

Where Vivante requires that you provide an e-mail address, you are responsible for providing Vivante with your most current e-mail address. In the event that the last e-mail address you provided to Vivante is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Agreement, Vivante’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Vivante at the following address: Johnson & Johnson Innovation Center [email protected], 2450 Holcombe Blvd., Houston, TX 77021. Such notice shall be deemed given when received by Vivante by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.

17.9 Waiver

Any waiver or failure to enforce any provision of the Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

17.10 Severability

f any portion of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect the maximum extent permitted by the law.

17.11 Export Control

You may not use, export, import, or transfer Vivante Offerings except as authorized by U.S. law, the laws of the jurisdiction in which you obtained Vivante Offerings, and any other applicable laws. In particular, but without limitation, Vivante Offerings may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using Vivante Offerings, you represent and warrant that (y) 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 (z) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use Vivante Offerings for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by Vivante are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer Vivante products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.

17.12 Accessing and Downloading the Application from iTunes

The following applies to any App Store Sourced Application accessed through or downloaded from the Apple App Store:

  • (a) You acknowledge and agree that (i) the Agreement is concluded between you and Vivante only, and not Apple, and (ii) Vivante, not Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the App Store Terms of Service.
  • (b) You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
  • (c) In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Application to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between Vivante and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Vivante.
  • (d) You and Vivante acknowledge that, as between Vivante and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
  • (e) You and Vivante acknowledge that, in the event of any third-party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between Vivante and Apple, Vivante, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by the Agreement.
  • (f) You and Vivante acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of the Agreement as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of the Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce the Agreement as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof.
  • (g) Without limiting any other terms of the Agreement, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.

17.13 Consumer Complaints

In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (800) 952-5210.

17.14 Entire Agreement

The Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.