MDx Medical, Inc., together with our related, affiliated and/or subsidiary companies (“MDx,” “Vitals,” “We,” “Us,” or “Our”) welcomes you. We invite you to access and use our products and services (collectively, the “Products and Services”), which are made available to you through a variety of platforms, including, but not limited to, www.vitalssmartshopper.com and www.smartshopper.com (the “Website”) and our mobile app, which is accessible through tablets, cell phones, and other devices (the “App”). The Website and the App and all services associated with the Smart Shopper Program are collectively referred to as the “Platform.”
THE PLATFORM DOES NOT PROVIDE MEDICAL ADVICE. THE PLATFORM IS NOT A PHYSICIAN RANKING SYSTEM AND THE INFORMATION CONTAINED WITHIN HAS NO BEARING ON THE QUALITY OF CARE PROVIDED BY ANY REFERENCED ENTITY OR PHYSICIAN. THE PLATFORM AND THE INFORMATION CONTAINED WITHIN SHOULD NOT BE CONSIDERED AN ENDORSEMENT OF ANY MEDICAL PROVIDER OR PROCEDURE. The Platform, the Products and Services, and the Content (defined below) are provided for informational purposes only, and are not intended as a substitute for professional medical advice, diagnosis, or treatment. Always seek the advice of Your physician or other qualified healthcare provider for answers to any questions You may have regarding a medical or health related condition. The Platform, the Products and Services, or the Content is not intended to be relied upon for medical diagnosis or treatment. Never disregard medical advice or delay in seeking it because of information you have obtained on our Platform. Reliance on the Platform, the Products and Services, and the Content is solely at your own risk.
We, and your associated Health Plan, do not recommend or endorse any particular Healthcare Provider whose information, cost information, reviews, or ratings appear on our Platform. Rather, Vitals is only a “conduit” or intermediary that provides the aforementioned content regarding Healthcare Providers. No Content or other information contained on the Platform should be construed as a recommendation or endorsement of a particular Healthcare Provider. The Content and other information on Platform include statements of opinion, which are not statements of fact or Our recommendations to utilize the services of any specific Healthcare Provider. You should obtain any additional information necessary to make an informed decision prior to selecting and using any specific Healthcare Provider. The opinions expressed on Platform are those of Our Users and not Ours. We do not offer advice regarding the quality or suitability of any particular Healthcare Provider for any condition, including specific treatments or health conditions.
You agree to assume all responsibility in connection with choosing any Healthcare Provider, whether or not You obtained information about such Healthcare Provider on or through our Platform. You specifically acknowledge and agree that We are not responsible or liable for any advice, treatment or other services rendered by any Healthcare Provider, or for any claims (malpractice or otherwise) that may arise directly or indirectly from any such advice, treatment or other services.
The cost estimates displayed on the Platform are only good faith estimates based on the information provided to Vitals by Your health plan, employer, or the third party administrator of your self-insured employer (as applicable) (collectively the “Health Plan”) (or its subsidiary) at the time your request was submitted. The data provided to Vitals by the Health Plan includes, but is not limited to identify proposed services, the list of network providers, member eligibility, enrollment status, dollar amounts accumulated towards deductibles, and out of pocket maximums, and contract arrangements in place between the Health Plan, you and the Health Plan network healthcare providers. If the proposed cost estimates provided through this Platform do not accurately reflect the costs of the services that are ultimately billed, or if any other information has changed between the time of the request and the time of service, the cost estimates shown on this Platform will no longer be valid. The cost estimates only reflect those services listed on the Platform, and assume that you have obtained the appropriate referral or authorization that may be required by your Health Plan. The cost estimates do not take into account any unforeseen costs that may be related to the proposed services. Your financial responsibility may vary from the cost estimates should unforeseen services be received and billed. All estimates for inpatient services, assume you will be discharged home. Please be advised that for many types of services, there are typically separate charges from multiple providers and facilities. For example, there may be separate charges from facilities, anesthesiologists, surgeons or radiologists.
Any statements by Us will not alter or amend the terms of Your Health Plan or provide you with a guarantee of benefits or coverage under the Health Plan. Your Health Plan’s participation with the Platform is not intended to, nor shall it, change the scope and type of benefits offered by the Health Plan or alter Your or any other respective contribution or any other obligations in connection with the Health Plan. The Platform will not affect or alter in any manner the copay, coinsurance, deductibles, benefit limits or any aspect of the Health Plan affecting the cost of benefits to You under the Plan. We have no responsibility or authority of any kind to determine whether claims for healthcare services to You are to be covered.
1. DESCRIPTION OF PLATFORM
Through the Platform, Vitals offers information on physicians, psychologists, healthcare providers, healthcare facilities, long-term care facilities, hospitals, insurers and other providers of healthcare services and persons working on their behalves (collectively, the “Healthcare Providers”). Vitals organizes information to help you independently assess particular Healthcare Providers. To enable such assessment, Vitals may include profiles, ratings, cost information, feedback, comments, indexes, scorecards, materials and other informative details about the Healthcare Providers. The information used to drive Vitals is compiled from a variety of sources, including the Health Plan, independent surveys, publicly available records, Vitals account registrants and third-party providers, then processed using various empirical and proprietary algorithms and processes, and finally arranged in a non-complicated, simple-to-use and easy-to-view arrangement. Depending on the search criteria used by You when performing a search for a Healthcare Provider on the Platform, the Healthcare Providers may be sorted based on a variety of factors, including their cost.
Your Health Plan has licensed the Platform from Vitals for an agreed upon fee and the Platform is currently provided to You for free. However, we reserve the right to begin charging fees at any time upon notice to You.
3. CONTINUED USE DEEMED ACCEPTANCE
We reserve the right, at our sole discretion, to change, alter, amend or otherwise modify this Agreement from time to time. We will post any changes on this page (with the effective date of the update near the top of this page). We encourage You to check back and review this Agreement for any updates or modifications. After any such modification becomes effective, We will deem Your continued use of our Platform to constitute Your acceptance of and agreement to such modification.
Subject to the terms and conditions of this Agreement, You are granted a non-exclusive, non-transferable, personal, revocable license to (i) access and use the Platform and the Content, and (ii) copy, download and store the Content (e.g., in a temporary cache) to enable printing and/or offline viewing of any such Content solely for Your non-commercial use and not for resale or distribution to anyone else. There are no implied licenses under this Agreement. You also agree that, with respect to any copy of the Content that You download, create, generate, store and/or print, You will reproduce and include all copyright and other proprietary notices included in any such Content.
With respect to Your Submissions, You represent, warrant and covenant that:
Vitals retains the right to review and delete or remove from public view on the Platform and delete from any other media or server where Your Submissions may be stored or displayed by or on behalf of Vitals, any Submissions, which Vitals in its sole discretion considers illegal, offensive, obscene, abusive, harassing, commercial in nature, infringing, inappropriate or otherwise violates the terms and conditions of this Agreement. If notified of an allegation that the Platform contains infringing information, materials or other content, Vitals may investigate the allegation and determine in Vitals sole discretion whether to remove or request the removal of the same from the Platform and from any other media or server where the infringing content may be stored or displayed by Vitals. Notices to Vitals regarding any alleged copyright infringement should be sent to Vitals, Attn: Senior Vice-President, Legal and Compliance, 160 Chubb Avenue, Lyndhurst, NJ 07071 or to email@example.com.
6. USER ACCOUNTS, IDS AND PASSWORDS
Access to the Platform, the Content and the Products and Services are limited by a user identifier (“User ID”) and password, which are selected and/or supplied by You as part of registering for an account via the Website and/or the App (individually and collectively, the “Smartshopper account”). You may need separate User IDs and passwords to register a Smartshopper Account both on the Platform. By registering a Smartshopper account, You represent, warrant and agree that: (i) You are at least 18 years of age, (ii) You are using Your actual identity, (iii) You have provided only true, accurate, current and complete information about You during the registration process, and (iv) You will maintain and promptly update the information that You provide to keep it true, accurate, current and complete.
Your account is for your personal, non-commercial use only. You may not impersonate someone else. By logging onto a Smartshopper account using a password, You represent, warrant and agree that You are authorized to use such password and to engage in the activities that You conduct thereunder. You further agree that You will be solely responsible for the maintenance and security of Your User ID and password. You also agree that You will be solely responsible for any activities conducted on or through Your Smartshopper Account regardless of whether or not You are the individual who undertakes such activities. This includes any unauthorized access and/or use of Your Smartshopper Account, Your computer or Your mobile device. Accordingly, You release and hold harmless MDx Parties from any and all claims and causes of action arising out of or resulting from a third party’s unauthorized use of Your Smartshopper Account. Your User ID and password are unique to You, and You agree not to disclose or share Your User ID and password to or with any third party.
Vitals reserves the right to deny or revoke Your access to the Platform, Your Smartshopper Account, or any part thereof, or delete or change Your Smartshopper Account password at any time in its sole discretion, with or without cause. Your access to the Platform will terminate upon the termination of this Agreement for any reason at the sole discretion of Vitals. If You wish to cancel Your Smartshopper Account password, or if You become aware of any loss, theft or unauthorized use of Your Smartshopper Account password, please notify Vitals immediately by sending an e-mail to firstname.lastname@example.org or writing to Vitals, Attention: Senior Vice-President, Legal and Compliance, 160 Chubb Avenue, Lyndhurst, NJ 07071.
7. WEBSITE MONITORING
Vitals reserves the right to view, monitor, and record activity on the Platform without notice or permission to You. Vitals may monitor or review any areas on the Platform where Users transmit or post communications or communicate solely with each other, for the purpose of promoting its efficiency, usefulness, appropriateness of use and compliance with this Agreement. However, Vitals does not undertake to monitor, moderate or review any or all Submissions, or every posting or communication, and Vitals disclaims any liability related to the content of any such postings and communications, whether or not arising under the laws of copyright, trademarks, libel, defamation, privacy, obscenity, or otherwise.
Vitals is not responsible for screening, policing, editing or monitoring the Submissions and other third party statements posted or displayed on the Platform, including, without limitation, all third party advertising posted or displayed on the Platform. While Vitals, from time to time and in its discretion, may monitor the content of the Submissions and other third party communications posted or displayed on the Platform, Vitals does not endorse, support, sanction, encourage, verify, or necessarily agree with the Submissions and other comments, opinions, or statements posted on the Platform by Users and other third parties. Any information or material placed on the Platform by Users or other third parties, including advice and opinions, are solely the views and responsibility of those posting such information or material, and do not necessarily represent the views of Vitals. Vitals reserves all of its rights to discontinue in its sole discretion the Products and Services provided on the Platform in general or to any User or Healthcare Provider at any time.
9. INTELLECTUAL PROPERTY
The Platform contains materials, such as software, data, cost information, contract arrangements between Healthcare Providers and the Health Plan, text, graphics, images, and other materials provided by or on behalf of Vitals (collectively referred to as the “Content”). All right, title and interest in and to the Content, including without limitation the graphical display and arrangement of the Platform and the Content, and all intellectual property rights embodied therein, are the property of Vitals or its licensors or suppliers, including any of the Content that may be stored or displayed by Vitals on other media or servers. The Platform and the Content contained and referenced therein are for informational purposes only. Any reproduction, retransmission or other use is strictly prohibited, except as otherwise provided by this Agreement or by Vitals’ express authorization. Requests for permission to reproduce any of the Content may be made by sending an e-mail to email@example.com, or writing to Vitals, 160 Chubb Avenue, Lyndhurst, NJ 07071.
VITALSSMARTSHOPPER, SMARTSHOPPER AND VITALS are all trademarks or service marks (individually and collectively, the “Vitals Marks”) owned by Vitals. All other trademarks, service marks, domain names, logos, and company names (collectively “Other Marks”) displayed or referred to on Vitals are trademarks, registered trademarks, service marks, domain names, logos, company names of or are otherwise the property of Vitals or their respective owners.
Except as provided in this Agreement, Vitals does not grant You any rights in or to the Vitals Marks or the Other Marks. You agree that You shall not use the Vitals Marks or the Other Marks in any manner inconsistent with the provisions of this Agreement, without the prior written authorization of Vitals or the respective owners of the Other Marks as the case may be. Requests to use the Vitals Marks or other Vitals Marks for purposes other than stated in this Agreement may be made by sending an e-mail to firstname.lastname@example.org, or writing to Vitals, 160 Chubb Avenue, Lyndhurst, New Jersey 07071.
We own and will continue to own all right, title, and interest in and to (i) the Platform, including, without limitation, all source code, object code, rating system, methodology, operating instructions, and interfaces developed for or relating to the Platform; (ii) all modifications, enhancements, revisions, changes, copies, partial copies, translations, compilations, improvements, and derivative works of the foregoing, and all intellectual property rights therein; and (iii) any Content. Except as expressly permitted in this Agreement, You have no rights in or to any of the foregoing.
10. USE OF THE PLATFORM
Without limiting anything else contained in this Agreement, You agree and acknowledge that:
Vitals reserves the right to modify and/or discontinue the Platform at any time, for any reason and without notice, and to terminate Your Vital’s account should you be in violation of this Agreement, including, but not limited to, the provisions of this section entitled “Use of the Platform”.
11. NOTICE OF ENFORCEMENT
Vitals vigorously enforces its intellectual property rights to the fullest extent of the law. Accordingly, Vitals will not hesitate to prosecute any unauthorized use or reproduction of any of the Content, Submissions, Databases, Products and Services and any other information contained therein that violate the protection afforded by the United States and international copyright law and trademark law, and/or other state, federal, and international laws and regulations, including laws pertaining to contracts, privacy and publicity.
12. EXTERNAL LINKS
Vitals does not make any representations or give any warranties or conditions with respect to any information contained in or at such other websites and applications and You acknowledge and agree that Vitals shall not be liable for any damages or injury resulting or arising from the content of or access to such other websites and applications. Vitals does not endorse the individuals, companies or other similar entities, or any products or materials associated with such individuals, companies or other similar entities, which provide a link to our Platform. Unless approved in writing in advance by Vitals, You agree not to: (i) provide or create a link to our Platform, or (ii) create any frames at any other websites or mobile applications pertaining to any of the Content located on our Platform.
NONE OF VITALS, ITS AFFILIATES, SUBSIDIARIES, OR ITS OR THEIR OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AGENTS, CONTENT PROVIDERS, CUSTOMERS, THE HEALTH PLAN, (AS DEFINED ABOVE) OR SUPPLIERS (COLLECTIVELY, THE “MDx PARTIES”) ENDORSE ANY USER, HEALTHCARE PROVIDER OR ANY SUBMISSION POSTED BY ANY USER OR HEALTHCARE PROVIDER (INCLUDING, WITHOUT LIMITATION, ANY OPINION, RECOMMENDATION OR ADVISE EXPRESSED BY ANY USER OR HEALTHCARE PROVIDER).
YOU AGREE THAT YOUR USE OF THE PLATFORM AND THE CONTENT IS ENTIRELY AT YOUR OWN RISK. THE PLATFORM, AND THE CONTENT, INCLUDING COST ESTIMATES AND COST INFORMATION, DOLLAR AMOUNTS TOWARD DEDUCTIBLES OUT OF POCKET MAXIMUMS, CONTRACTS AGREEMENTS BETWEEN HEALTHCARE PROVIDERS AND THE HEALTH PLAN MAY INCLUDE TECHNICAL INACCURACIES AND/OR TYPOGRAPHICAL ERRORS. WE MAY MAKE CHANGES OR IMPROVEMENTS THERETO AT ANY TIME WITHOUT NOTICE. THE PLATFORM, AND ALL CONTENT, FUNCTIONS, AND MATERIALS MADE AVAILABLE TO YOU THROUGH THE PLATFORM ARE PROVIDED “AS IS”, “WITH ALL FAULTS” AND WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND EITHER EXPRESSED OR IMPLIED. MDx PARTIES DISCLAIM, TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, ALL WARRANTIES AND CONDITIONS EXPRESSED OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ANY WARRANTIES CONCERNING THE AVAILABILITY, ACCURACY, RELIABILITY, COMPLETENESS, CURRENCY, QUALITY, PERFORMANCE OR SUITABILITY OF THE WEBSITE, THE CONTENT, OR ANY PRODUCTS, SERVICES OR RESULTS OBTAINED ON OR THROUGH THE PLATFORM.
SOME OF THE CONTENT, INCLUDING BUT NOT LIMITED TO HEALTHCARE PROVIDER INFORMATION, COST DATA, COST INFORMATION, DOLLAR AMOUNTS TOWARD DECUCTABLES, OUT OF POCKET MAXIMUMS, CONTRACT ARRANGMENTS BETWEEN HEALTHCARE PROVERS AND THE HEALTH PLAN, DATA, RESEARCH, ANALYSIS, REVIEWS AND RATINGS ARE PROVIDED BY THIRD PARTY INFORMATION PROVIDERS. NONE OF THE MDX PARTIES MAKE ANY REPRESENTATION WITH RESPECT TO, OR GUARANTY OR ENDORSE THE AVAILABILITY, ACCURACY, RELIABILITY, COMPLETENESS, CURRENCY, QUALITY, PERFORMANCE OR SUITABILITY OF ANY INFORMATION, MATERIALS OR OTHER DATA PROVIDED BY ANY SUCH THIRD PARTY INFORMATION PROVIDERS.
MDx PARTIES DOES NOT REPRESENT OR WARRANT THE AVAILABILITY OF OR YOUR ACCESS TO THE PLATFORM, THAT THE PLATFORM AND YOUR USE OF THE PLATFORM WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE PLATFORM OR THE SERVER OR CODE THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. NONE OF THE MDx PARTIES WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OF OR THE RESULT OF THE USE OF THE PLATFORM AND/OR THE CONTENT IN TERMS OF THEIR CORRECTNESS, ACCURACY, TIMELINESS, RELIABILITY, APPLICABILITY OR OTHERWISE. YOU (AND NOT VITALS) ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. THE ABOVE EXCLUSION MAY NOT APPLY TO YOU, TO THE EXTENT THAT APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES.
NONE OF THE MDx PARTIES MAKE ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, THAT THE PLATFORM OR ANY OF THE CONTENT WILL ASSIST YOU IN IDENTIFYING A SUITABLE HEALTHCARE PROVIDER OR FOR ANY OTHER PURPOSE. MDx PARTIES DISCLAIM ANY AND ALL RESPONSIBILITY AND LIABILITY WITH RESPECT TO ANY AGREEMENTS YOU MAY MAKE WITH OR PRODUCTS OR SERVICES YOU OBTAIN FROM HEALTHCARE PROVIDERS OR THIRD PARTIES WHO OFFER PRODUCTS OR SERVICES ON OR THROUGH THE PLATFORM, AND YOU AGREE TO LOOK SOLELY TO SUCH HEALTHCARE PROVIDERS AND THIRD PARTIES WITH RESPECT TO ANY AND ALL CLAIMS ARISING OUT OF SUCH AGREEMENTS AND/OR SUCH PRODUCTS OR SERVICES.
14. LIMITATIONS ON LIABILITY
YOUR SOLE AND EXCLUSIVE RIGHT AND REMEDY IN CASE OF DISSATISFACTION WITH THE PLATFORM, THE PRODUCTS OR SERVICES SHALL BE YOUR TERMINATION AND DISCONTINUATION OF ACCESS TO, OR USE OF THE SAME. NONE OF THE MDx PARTIES WILL BE LIABLE FOR ANY DAMAGES OR INJURY FOR BREACH OF WARRANTY, BREACH OF CONTRACT, OR TORT (WHERE NEGLIGENCE IS THE STANDARD OF CULPABILITY) CAUSED BY YOUR USE OF THE PLATFORM, OR THE CONTENT OR THE PRODUCTS AND SERVICES MADE AVAILABLE TO YOU THROUGH THE PLATFORM, INCLUDING BUT NOT LIMITED TO, ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DEFECT, DELAY IN OPERATION OF TRANSMISSION, COMPUTER VIRUS, OR LINE FAILURE. NONE OF THE MDx PARTIES WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES THAT RESULT FROM THE USE OF, THE INABILITY TO USE, OR RELIANCE UPON, THE PLATFORM, AND THE CONTENT OR ANY PRODUCTS OR SERVICES OBTAINED ON OR THROUGH THE PLATFORM, EVEN IF A MDx PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE TOTAL CUMULATIVE LIABILITY OF THE MDx PARTIES TO YOU FOR DIRECT DAMAGES ARISING UNDER THIS AGREEMENT OR RELATING THERETO, EXCEED, ONE HUNDRED DOLLARS ($100). BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR NEGLIGENCE, CONSEQUENTIAL, INCIDENTAL OR OTHER DAMAGES, IN SUCH JURISDICTIONS THE MDx PARTIES’ LIABILITY IS LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW. THIS LIMITATION IS ENFORCABLE IN NEW JERSEY.
YOU AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS THE MDx PARTIES FROM AND AGAINST ANY AND ALL CLAIMS, PROCEEDINGS, DAMAGES, INJURIES, LIABILITIES, LOSSES, COSTS AND EXPENSES (INCLUDING REASONABLE ATTORNEYS’ FEES AND LITIGATION EXPENSES), RELATING TO OR ARISING FROM:
16. RELEASE FOR EVENTS BEYOND OUR CONTROL
You absolve and release the MDx Parties from any claim of harm resulting from any cause(s) over which MDx Parties do not have control, including, but not limited to, failure of electronic or mechanical equipment or communication lines, telephone or other interconnect problems, computer viruses or other damaging code or data, unauthorized access, theft, operator errors, severe weather, earthquakes, natural disasters, strikes or other labor problems, wars, or governmental restrictions.
17. TERM AND TERMINATION
This Agreement will take effect at the earlier of the time You click “I Agree” to this Agreement or that You access, browse or use the Platform or any of the Content, and continues in perpetuity unless terminated by You in accordance with this provision and/or by Vitals. Vitals reserves the right, at any time and for any reason, without notice to You, (i) to deny You access to the Platform and any of the Content, (ii) to change, remove or discontinue any of the Content or services available on or through the Platform, or (iii) to terminate this Agreement.
The warranty disclaimers, limitations and exclusions of liability, reservation and grant of property rights and other terms and conditions of this Agreement which by their nature are intended to survive and will survive the termination or expiration of this Agreement for any reason.
Any notice or other document or communication required or permitted hereunder to Vitals will be deemed to have been duly given only if in writing and delivered by any of the following methods:
Notices to Vitals shall be deemed delivered when actually received by Vitals.
Any notice or other document or communication from Vitals required or permitted hereunder will be sent to the e-mail address that You provide when You register with Vitals (or any updated e-mail address that You may provide after registering). Such notice will be deemed received by You the business day after the e-mail is sent, whether or not You provided an accurate or current e-mail address.
Should You elect to send or receive e-mail communications of any kind to or from Vitals, You represent and warrant to Vitals that Your e-mail service has appropriate and adequate security systems necessary to prevent unauthorized access to outbound or inbound e-mail transmissions.
19. JURISDICTION; COMPLIANCE WITH LAWS
Except as set forth otherwise herein, Vitals controls and operates the Platform from the United States of America and makes no representation that the Platform, the Content or the Products and Services made available to you through the Platform is appropriate or available for use outside the United States of America. You are responsible for compliance with applicable local laws including, without limitation, all export and import laws. Some of the Content may be subject to export controls imposed by the United States and may not be downloaded or otherwise exported or re-exported: (i) into (or to a national or resident of) any country to which the U.S. has placed an embargo; (ii) to anyone in the US Treasury Department’s Specially Designated national list, or (iii) to anyone on the US Commerce Department’s Table of Denial Orders. If You download or use the Content, You represent and warrant that You are not located in, or under the control of, or a national or resident of any such country or on any such list.
Access, browsing and use of the Platform, the Content and this Agreement, and all matters or issues collateral thereto are all governed by United States federal law and/or the laws of the State of New Jersey, without regard to any conflict of laws provisions that would refer to and/or apply the substantive laws of another jurisdiction.
SUBJECT TO THE MANDATORY ARBITRATION PROVISION BELOW, ANY LEGAL ACTION OR PROCEEDING RELATING TO YOUR ACCESS TO, OR DOWNLOADING, INSTALLATION OR USE OF, THE WEBSITE OR THE APP SHALL BE INSTITUTED ONLY IN A STATE OR FEDERAL COURT LOCATED IN THE STATE OF NEW JERSEY, U.S.A., AND YOU AND VITALS AGREE TO SUBMIT TO THE JURISDICTION OF, AND AGREE THAT VENUE IS PROPER IN, THESE COURTS IN ANY SUCH LEGAL ACTION OR PROCEEDING.
20. ARBITRATION AND CLASS ACTION WAIVER
Any controversy or dispute between You and Vitals (the “parties”) concerning the Platform, the Content, this Agreement and/or all matters or issues collateral thereto (each, a "Dispute”) shall be submitted to final and binding arbitration as the sole and exclusive remedy for such Dispute. Neither of the parties shall have the right to litigate any claim in court or to have the claim decided by a judge or jury. Discovery rights, such as each party’s rights to the exchange of prehearing information or prehearing taking of sworn testimony may also be limited in arbitration. Any claim shall be made by filing a demand for arbitration within one (1) year following the occurrence first giving rise to the claim. The right and duty of the parties to resolve disputes by arbitration shall be governed exclusively by the Federal Arbitration Act, and arbitration shall take place according to the Commercial Rules of the American Arbitration Association. The arbitration will be held in Lyndhurst, New Jersey. Each of the parties shall bear all of its own costs of arbitration, except that the fees of the arbitrator shall be divided equally between the parties. The arbitrator shall have no authority to amend or modify the terms of this Agreement or to award punitive or exemplary damages, and the award may be enforced by judgment. Before, during, or after arbitration each party shall have the right, without awaiting the outcome of the arbitration, to seek interim injunctive relief from an appropriate court including but not limited to temporary restraining orders or preliminary injunctions. Seeking any such remedies shall not be deemed a waiver of either party’s right to compel arbitration.
You agree that any arbitration or proceeding shall be limited to the Dispute between Vitals and You individually. To the full extent permitted by law, (i) no arbitration or proceeding shall be joined with any other; (ii) there is no right or authority for any Dispute to be arbitrated or resolved on a class action-basis or to utilize class action procedures; and (iii) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons. YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST US ONLY IN YOUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
No delay or omission by Vitals to exercise any right occurring upon any noncompliance on Your part with respect to any of the terms of this Agreement will impair any such right or power or be construed to be a waiver thereof. Any waiver by Vitals of any of the covenants, conditions or agreements to be performed by You will not be construed to be a waiver of any succeeding breach thereof or of any covenant, condition or agreement herein contained.
If any portion of this Agreement is adjudged invalid or unenforceable by an arbitrator or a court of competent jurisdiction, the remaining portions will remain valid, enforceable, and in effect.
23. INDEPENDENT CONTRACTOR
Vitals is an independent contractor; nothing in this Agreement shall be construed to create a partnership, joint venture, or agency relationship between You and Vitals.
24. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between You and Vitals with respect to Your use of the Platform, the Content and the Products and Services, and supersedes any and all prior understandings or agreements between You and Vitals, whether written or oral. You acknowledge that, in providing You access to and use of the Platform, the Content and the Products and Services, Vitals has relied on Your acceptance of this Agreement. Failure to insist on strict performance of any provisions of this Agreement will not constitute a waiver of any breach or failure of performance.