Terms of Service
- “Vitalistics” means Vitalistics, LLC, whose principal place of business is at 222 South 15th Street, Suite 1005N, Omaha, NE 68102.
- “Vitalistics Research” means scientific and other health research that Vitalistics performs with the intent to publish in scientific journals and other health publications. Vitalistics Research only uses Sleep Assessment and Home Sleep Test Kit Information from users who have given informed consent according to the applicable Consent Document. Vitalistics Research activities do not include R&D.
- “Product Development” means research performed for the purpose of new product development and new product development activities performed by Vitalistics on anonymized or aggregated user data. These activities may include, among other things, performing quality control activities; offering new products or services to you; improving our Services; conducting data analysis that may lead to and/or include commercialization with a third party. You acknowledge and agree that your Home Sleep Test Kit Information and user data that has been anonymized or aggregated with other third party user data cannot be removed or deleted from the Services, and you hereby grant to Vitalistics, and Vitalistics shall have, an irrevocable, perpetual, world-wide, sublicensable, non‑exclusive, royalty-free, fully paid-up right and license to use, reproduce, display, publish, copy, modify, adapt, adopt, enhance, distribute, perform and prepare derivative works based upon this anonymized or aggregated user data.
- “Service” or “Services” means Vitalistics service, testing kits, analysis, information, brochures, accounts, software, products, and website (including but not limited to text, images, graphics, and other information and material) as accessed from time to time by the user, regardless of whether or not the use is in connection with an account.
- “Personal Information” is information that can be used to identify you specifically, either alone or in combination with other information. Vitalistics collects and stores the following types of Personal Information:
- “Registration Information” is the information you provide about yourself when registering for and/or purchasing our Services (e.g., name, email, address, user ID and password, and payment information).
- “Home Sleep Test Kit Information” is information regarding your health, generated through processing of your Home Sleep Test Kit by Vitalistics or by its contractors, successors, and assignees; or otherwise processed by and/or contributed to Vitalistics.
- “Sleep Assessment” is all information about yourself, including your sleep conditions, personal traits, lifestyle information, ethnicity, family history, other health-related information, and other information that you enter into surveys, forms, or features while signed in to your Vitalistics account. Sleep Assessment is included in Vitalistics Research only if it has been indicated for Vitalistics Research use on the website and if you have given consent according to the applicable Consent Document.
- “User Content” is all information, data, text, software, audio, photographs, graphics, video, messages, or other materials – other than Home Sleep Test Kit Information and Sleep Assessment-generated by users of Vitalistics Services and transmitted, whether publicly or privately, to or through Vitalistics.
- “Web Behavior Information” is information on how you use the Vitalistics website (e.g., browser type, domains, page views) collected through log files, cookies, and web beacon technology.
- “Aggregated Sleep Assessment and Home Sleep Test Kit Information” is Sleep Assessment and Home Sleep Test Kit Information that has been combined with that of other users and analyzed or evaluated as a whole, such that no specific individual may reasonably be identified.
2. Acceptance of Terms
Your use of Vitalistics Services (excluding any services provided by Vitalistics under a separate agreement) is subject to the terms of the legal agreement between you and Vitalistics set forth in these Terms of Service (“TOS”). Except as specified herein, these TOS apply to any use of the Services, including but not limited to a) submitting Sleep Assessment for processing, b) submitting your Home Sleep Test Kit Information for processing, c) interacting with your Sleep Assessment and/or Home Sleep Test Kit Information on the Vitalistics website, and/or d) creating and using a free Vitalistics account without providing your Sleep Assessment or Home Sleep Test Kit Information. To use the Services, you must first agree to the TOS. You may not use the Services if you do not accept the TOS. You can accept the TOS by (1) clicking to accept or agree to the TOS, where this option is made available to you by Vitalistics for any Service; or by (2) actually using the Services. In this case, you acknowledge and agree that Vitalistics will treat your use of the Services as acceptance of the TOS from that point onwards. In addition, when using particular Vitalistics Services, you shall be subject to any guidelines or rules applicable to such services that may be posted from time to time. All such guidelines or rules are hereby incorporated by reference into the TOS. Vitalistics also may offer other services from time to time that are governed by different terms of service.
- Whether you submit your own Sleep Assessment and/or Home Sleep Test Kit Information, or submit Sleep Assessment and/or Home Sleep Test Kit Information for anyone for whom you have legal authority to agree, or otherwise provide your own Sleep Assessment and/or Home Sleep Test Kit Information, you may not use the Services and may not accept the TOS if (1) you are not of legal age to form a binding contract with Vitalistics, or (2) you are a person barred from receiving the Services under the laws of the jurisdiction in which you are resident or from which you use the Services.
- In addition to the conditions above, if you contribute or otherwise provide your own Sleep Assessment and/or Home Sleep Test Kit Information, you must be eighteen (18) years of age or older to agree to these TOS on behalf of yourself or those for whom you have the legal authority to agree.
- If your use of the Services includes creating a Vitalistics account, without submitting Sleep Assessment and/or Home Sleep Test Kit Information or otherwise providing Sleep Assessment and/or Home Sleep Test Kit Information, you must be eighteen (18) years of age or older to use the Services and accept the TOS.
4. Description of the Services
The Services include access to the Vitalistics public website and personal sleep information services, including the collection and analysis of your Sleep Assessment and/or Home Sleep Test Kit Information. Each new feature that augments or enhances the current Service shall be subject to the TOS unless explicitly stated otherwise. You acknowledge and agree that the Services are provided “AS-IS” and are based on the current state of the art of sleep research and technology in use by Vitalistics at the time of the purchase or viewing. As research progresses and scientific, and other health knowledge and technology evolve, Vitalistics is continuously innovating in order to provide the best possible experience for its users. You acknowledge and agree that the form and nature of the Services which Vitalistics provides may change from time to time without prior notice to you. As part of this continuing innovation, you acknowledge and agree that Vitalistics may stop (permanently or temporarily) providing some Services (or any features within the Services) to you or to users generally at Vitalistics sole discretion, without prior notice to you. You may stop using the Services at any time. You do not need to specifically inform Vitalistics when you stop using the Services unless you are requesting closure of your account. Vitalistics assumes no responsibility for the use of Services outside the terms of this TOS or other applicable terms. Upon closure of your Vitalistics account, you acknowledge and agree that Vitalistics may retain a copy of your Personal Information for backup, archival, and/or regulatory purposes, as reasonably determined by Vitalistics.
In order to use the Services, you must obtain Internet access, either directly or through devices that access web-based content, and pay any service fees associated with such access. You are solely responsible for paying such fees. In addition, you must provide all equipment necessary to make such Internet connection, including a computer and modem or another access device. You are solely responsible for providing such equipment. You acknowledge and agree that while Vitalistics may not currently have set a fixed upper limit on the number of transmissions you may send or receive through the Services or on the amount of storage space used for the provision of any Service, such fixed upper limits may be set by Vitalistics at any time, at Vitalistics discretion.
5. Risks and Considerations Regarding Vitalistics Services
Once you obtain your Sleep Assessment and Home Sleep Test Kit Information, the knowledge is irrevocable. You should not assume that any information we may be able to provide to you, whether now or as sleep research advances, will be welcome or positive. You should also understand that as research advances, in order for you to assess the meaning of your sleep in the context of such advances, you may need to obtain further services from Vitalistics, your physician, a Board Certified Sleep Physician, or other healthcare providers.
We encourage you to talk to a Board Certified Sleep Physician, a health professional with specialized training in sleep conditions, before collecting your sleep test data for processing to learn more so you can make an informed decision about whether having a home sleep test is right for you. A Board Certified Sleep Physician also can help you understand your results and options.
The Independent Diagnostic Testing Facility may not be able to process your Home Sleep Test Kit, and the Independent Diagnostic Testing Facility process may result in errors. The Independent Diagnostic Testing Facility may not be able to process your device data if your sleep data set does not contain a sufficient quantity of sleep data, you do not provide enough Sleep Assessment, or the results from processing do not meet our standards for accuracy.* If the initial processing fails for any of these reasons, Vitalistics will reprocess the same sleep dataset at no charge to the user. If the second attempt to process the sleep data set fails, Vitalistics will offer to send another kit to the user to collect a second set of sleep data at no charge. If the user sends another set of sleep data and Vitalistics attempts to process the second sleep data set are unsuccessful, Vitalistics will not send additional Sleep Data Collection kits and the user will be entitled solely and exclusively to a complete refund of the amount paid to Vitalistics provided the user shall not resubmit another sleep data set through a future purchase of the service. If the user breaches this policy agreement and resubmits another sleep data set through a future purchase of the service and processing is not successful, Vitalistics will not offer to reprocess the sleep dataset or provide the user a refund. Even for processing that meets our high standards, a small, unknown fraction of the data generated during the Independent Diagnostic Testing Facility process may be un-interpretable or incorrect (referred to as “Errors”). As this possibility is known in advance, users are not entitled to refunds where these Errors occur.
You should not change your health behaviors solely on the basis of information from Vitalistics. Make sure to discuss your Sleep Assessment and Home Sleep Test Kit Information with a physician or other healthcare provider before you act upon the Sleep Assessment and Home Sleep Test Kit Information resulting from Vitalistics Services. For most common sleep disorders, the indicators we know about are only responsible for a small fraction of the risk. There may be unknown environmental factors, lifestyle choices, or biological factors that are far more important predictors. If your data indicates that you are not at elevated risk for a particular sleep condition, you should not feel that you are protected. The opposite is also true; if your data indicates you are at an elevated risk for a particular sleep condition, it does not mean you definitively have the sleep condition. In either case, if you have concerns or questions about what you learn through Vitalistics, you should contact your physician, a Board Certified Sleep Physician, or another healthcare provider.
Sleep research is not comprehensive. While we measure many data points from your Sleep Assessment and Home Sleep Test Kit Information, only a small percentage of them are known to be related to a particular sleep health condition. The research community is rapidly learning more about sleep, and an important mission of Vitalistics is to conduct and contribute to this research. In addition, many ethnic groups are not included in sleep studies. Because interpretations provided in our service rely on these published studies, some interpretations may not apply to you. Future scientific and other health research may change the interpretation of your sleep. In the future, the scientific and health community may show previous research to be incomplete or inaccurate.
Sleep Assessment and Home Sleep Test Kit Information you share with others could be used against your interests. You should be careful about sharing your Sleep Assessment and Home Sleep Test Kit Information with others. Currently, very few businesses or insurance companies request sleep information, but this could change in the future. You may want to consult a lawyer to understand the extent of legal protection of your Sleep Assessment and Home Sleep Test Kit Information before you share them with anybody.
Furthermore, Sleep Assessment Information that you choose to share with your physician or other health care providers may become part of your medical record and through that route be accessible to other healthcare providers and/or insurance companies in the future. Sleep Assessments information that you share with family, friends or employers may be used against your interests. Even if you share Sleep Assessment Information that has no or limited meaning today, that information could have more significant meaning in the future as discoveries are made. If you are asked by an insurance company whether you have learned information about sleep and other health conditions and you do not disclose this to them, this may be considered to be fraud.
Vitalistics Services are for research, informational, and educational use only. We do not provide medical advice. The Sleep Information provided by Vitalistics is for research, informational, and educational use only. This means two things. First, many of the sleep discoveries that we report have not been clinically validated, and the technology we use, which is the same technology used by the research and health community, to date may or may not have been widely used for clinical testing. Second, in order to expand and accelerate the understanding and practical application of sleep knowledge in health care, we invite all users to participate in Vitalistics Research. Participation in Vitalistics research is voluntary and based upon a consent document. As a result of the current state of sleep knowledge and understanding, our Services are for informational, educational, and research purposes only. The Sleep Assessment Information is not intended to be used by the customer for any diagnostic purpose and are not a substitute for professional medical advice. You should always seek the advice of your physician or another healthcare provider with any questions you may have regarding diagnosis, cure, treatment, mitigation, or prevention of any disease or other medical condition or impairment or the status of your health.
Vitalistics does not endorse, warranty or guarantee the effectiveness of any specific course of action, resources, tests, physician or other healthcare providers, drugs, biologics, medical devices or other products, procedures, opinions, or other information that may be mentioned on our website. If we provide to you on our website any recommendations that identify for you, based on your Sleep Assessment and Home Sleep Test Kit Information, and scientific literature or research or other health information, potentially actionable information, this information is intended for informational purposes only and discussion with your physician or other healthcare providers. As explained on our website, Vitalistics believes that (a) sleep is only part of the picture of any individual’s state of being, (b) the state of the understanding of sleep is rapidly evolving and at any given time we only comprehend part of the picture of the role of sleep, and (c) only a trained physician or other health care provider can assess your current state of health or disease, taking into account many factors, including in some cases your sleep as well as your present symptoms, if any. Reliance on any information provided by Vitalistics, Vitalistics employees, others appearing on our website at the invitation of Vitalistics, or other visitors to our website is solely at your own risk.
We are not universally licensed by all state, federal, or international authorities for sleep testing conducted for health and disease-related purposes. In addition, there are certain jurisdictions in which we do not offer our Services because we do not have a Physician Boarded in Sleep with the required licenses.
6. User Representations
By accessing Vitalistics Services, you agree to, acknowledge, and represent as follows:
- You understand that information you learn from Vitalistics is not designed to independently diagnose, prevent, or treat any condition or disease or to ascertain the state of your health in the absence of medical and clinical information. You understand that the Vitalistics services are intended for research, informational, and educational purposes only and that while Vitalistics data and insights might point to a diagnosis or a possible treatment, it should always be confirmed and supplemented by additional medical and clinical testing and information. You acknowledge that Vitalistics urges you to seek the advice of your physician or another healthcare provider if you have questions or concerns arising from your Sleep Assessment and/or Home Sleep Test Kit Information.
- You give permission to Vitalistics, its contractors, successors, and assignees to perform sleep testing services on the sleep data extracted from your device data sample and you specifically request Vitalistics to disclose the results of analyses performed on your sleep device data to you and to others you specifically authorize.
- You represent that you are eighteen (18) years of age or older if you are providing a sleep device data sample or accessing your Sleep Assessment and Home Sleep Test Kit Information.
- You are guaranteeing that any sleep data and information you provide is your Sleep Assessment and Home Sleep Test Kit Information; if you are agreeing to these TOS on behalf of a person for whom you have legal authorization, you are confirming that the sleep data and information provided will be the sleep data and information of that person.
- You agree that any Sleep Assessment and Home Sleep Test Kit Information you provide and all resulting data may be transferred and/or processed outside the country in which you reside.
- You are warranting that you are not an insurance company or an employer attempting to obtain information about an insured person or an employee.
- You are aware that some of the information you receive may provoke strong emotion.
- You take responsibility for all possible consequences resulting from your sharing access with others to your Sleep Assessment and Home Sleep Test Kit Information.
- You understand that all your Personal Information will be stored in Vitalistics databases and will be processed in accordance with the Vitalistics Privacy Statement.
- Waiver of Property Rights:
- You understand that by providing any Sleep Assessment and Home Sleep Test Kit Information, having your Sleep Assessment and Home Sleep Test Kit Information processed, accessing your Sleep Assessment and Home Sleep Test Kit Information, or providing Sleep Assessment, you acquire no rights in any research, derivative works, or commercial products that may be developed by Vitalistics or its collaborating partners. You specifically understand that you will not receive compensation for any research, derivative works, or commercial products that include or result from your Home Sleep Test Kit Information or Sleep Assessment.
You agree that you have the authority, under the laws of the state or jurisdiction in which you reside, to provide these representations. In case of breach of any one of these representations Vitalistics has the right to suspend or terminate your account and refuse any and all current or future use of the Services (or any portion thereof) and you will defend, indemnify and hold Vitalistics and its affiliates harmless against any liability, costs, or damages arising out of the breach of the representation.
7. Account Creation, Customer Account, Password, Security Obligations, and Purchase Terms and Conditions
In consideration of your use of the Services, you agree to (a) provide true, accurate, current, and complete Registration Information about yourself as prompted by the Service; and (b) maintain and promptly update the Registration Information to keep it true, accurate, current, and complete. If you provide any Registration Information that is untrue, inaccurate, not current, or incomplete, or if Vitalistics has a reasonable ground to suspect that such information is untrue, inaccurate, not current, or incomplete, Vitalistics has the right to suspend or terminate your account and refuse any and all current or future use of the Service (or any portion thereof). The Services are for use only in the country to which your Home Sleep Test Kit was shipped from Vitalistics.
You will be required to create a password and account username (designation) before purchasing our Service. You are responsible for maintaining the confidentiality of the password and account and are fully responsible for all activities that occur under your password or account. If you allow third parties to access Vitalistics’s website through your username and password, you will defend, indemnify and hold Vitalistics and its affiliates harmless against any liability, costs, or damages, including attorney fees, arising out of claims or suits by such third parties based upon or relating to such access and use. You agree to (a) immediately notify Vitalistics of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session. Vitalistics cannot and will not be liable for any loss or damage arising from your failure to comply with this Section.
All billing information provided must be truthful and accurate. Providing any untruthful or inaccurate information constitutes a breach of these Terms of Service and may result in order cancellation. Prior to accepting an order, we may also request additional information from you. We reserve the right to refuse or cancel an order for any reason including limitations on quantities available for purchase, inaccuracies, or errors in product or pricing information, or problems identified by our credit and fraud checks. If your order is canceled after your credit card (or other payment account) has been charged, we will issue a credit to your credit card (or other applicable payment account) in the amount of the charge. We will contact you if all or any portion of your order is canceled or if additional information is required to accept your order. We may request a pre-authorization for some orders placed online with a credit or debit card. This pre-authorization will not be billed to you; however, your card issuer may hold this amount for a short period. Your card issuer determines the length of time the pre-authorization is held. We do this to ensure that the card details are still valid and that you have sufficient funds to complete the transaction.
By confirming your purchase at the end of the checkout process, you agree to accept and pay for the item(s).
We reserve the right to limit the quantity of items purchased per person, per household or per order for any reason. These restrictions may apply to orders placed by the same account, the same credit card, and also to orders that use the same billing and/or shipping address. We will notify you should such limits be applied.
We cannot confirm the price of an item until after your order is placed. Pricing errors may occur on the Vitalistics site. We reserve the right to cancel any orders containing pricing errors, with no further obligations to you, even after your receipt of an order confirmation or shipping notice from us. We may, at our discretion, either contact you for instructions or cancel your order and notify you of such cancellation. All items purchased through Vitalistics are made pursuant to a shipment contract. The risk of loss and title for such items pass to you upon Vitalistics’s tender of the item to the carrier.
8. Vitalistics Privacy Statement and Disclosure of Information
In order to use the Services, you must first acknowledge and agree to the Privacy Statement. You may not use the Services if you do not accept the Privacy Statement. You can acknowledge and agree to the Privacy Statement by (1) clicking to accept or agree to the Privacy Statement, where this option is made available to you by Vitalistics for any Service; or by (2) actually using the Services.
You acknowledge and agree that Vitalistics has the right to monitor any use of its systems by its personnel at any time and maintain copies documenting such monitoring. Our Privacy Statement sets forth the only expectations of privacy any individual should have regarding usage of the Vitalistics Services, website, or other systems. If you have given consent for your Home Sleep Test Kit Information and Sleep Assessment to be used in Vitalistics Research as described in the applicable Consent Document, we may include your information in the Aggregated Home Sleep Test Kit Information and Sleep Assessment we disclose to third parties for the purpose of publication in scientific journals and other health publications. Vitalistics may also include your information in Aggregated Home Sleep Test Kit, and Sleep Assessment disclosed to third-party non-profit and/or commercial research partners who will not publish that information in scientific journals and other health publications. Vitalistics Research may be sponsored by, conducted on behalf of, or in collaboration with third parties, such as non-profit foundations, academic institutions or pharmaceutical companies. Vitalistics Research may study a specific group or population, identify potential areas or targets for therapeutics development, conduct or support the development of drugs, diagnostics or devices to diagnose, predict or treat medical or other health conditions, work with public, private and/or non-profit entities on sleep research initiatives, or otherwise create, commercialize, and apply this new knowledge to improve health care. Vitalistics will never release your individual-level Home Sleep Test Kit Information and/or Sleep Assessment to any third party without asking for and receiving your explicit consent to do so unless required by law.
Further, you acknowledge and agree that Vitalistics is free to preserve and disclose any and all Personal Information to law enforcement agencies or others if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to (a) comply with legal process (such as a judicial proceeding, court order, or government inquiry) or obligations that Vitalistics may owe pursuant to ethical and other professional rules, laws, and regulations; (b) enforce the Vitalistics TOS; (c) respond to claims that any content violates the rights of third parties; or (d) protect the rights, property, or personal safety of Vitalistics, its employees, its users, its clients, and the public. In such an event, we will notify you through the contact information you have provided to us in advance unless doing so would violate the law or a court order. You understand that the technical processing and transmission of the Services, including your Personal Information, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks, or devices. Finally, Vitalistics may, in its sole discretion, restrict access to the website for any reason.
Please refer to our Privacy Statement to read about data protection related to your information. See our complete Privacy Statement here.
9. Limited License
You acknowledge that all User Content, whether publicly posted or privately transmitted, is the sole responsibility of the person from which such User Content originated. This means that you, and not Vitalistics, are entirely responsible for all User Content that you upload, post, email, or otherwise transmit via the Service.
You acknowledge that the Services content presented to you as part of the Services, whether original Vitalistics Services content or sponsored content within the Services, is protected by copyright and/or other intellectual property rights that are owned by Vitalistics and/or the sponsors who provide that content to Vitalistics (or by other persons or companies on their behalf). Vitalistics grants you a Limited License to copy and distribute free of charge, for non-commercial purposes only, any of the Services content with the exception of content marked as not subject to this Limited License on the website, provided you: (i) provide the Services content as it appears on the Vitalistics website with no changes including but not limited to presenting selections which might tend to misrepresent the substance of the Services content; (ii) include the following attribution on the first page of any materials you distribute: © Vitalistics, LLC 2018. All rights reserved; distributed pursuant to a Limited License from Vitalistics; and (iii) agree you have no right to offer anyone else any further right with respect to this Services content. Aside from the Limited License provided in this paragraph, you may not modify, rent, lease, loan, sell, distribute, or create derivative works based on this Services content (either in whole or in part) unless you have been specifically told that you may do so by Vitalistics or by the owners of that content, in a separate agreement.
10. Customer Conduct – Unlawful and Prohibited Use
As a condition of your use of the Services, you warrant to Vitalistics that you will not use the Services for any purpose that is unlawful or prohibited by these terms, conditions, or notices. You may not use the Services in any manner that could damage, disable, overburden, or impair the Services or interfere with any other party’s use and enjoyment of the Services. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available or provided for through the Services. You may not use the Services outside of the country to which your Home Sleep Test Kit was shipped from Vitalistics. Furthermore you agree not to use the Services to: (1) upload, post, email, or otherwise transmit any material that is derogatory, defamatory, obscene, or offensive, such as slurs, epithets, or anything that might reasonably be construed as harassment or disparagement based on race, color, national origin, sex, sexual orientation, age, disability, religious or political beliefs, or other statutorily protected status; (2) impersonate any person or entity, including, but not limited to, anyone affiliated with Vitalistics, or falsely state or otherwise misrepresent your affiliation with a person or entity; (3) add your own headers, forge headers, or otherwise manipulate identifiers in order to disguise the origin of any content transmitted through the Service; (4) “stalk” or otherwise harass another; (5) upload, post, email, or otherwise transmit any content that you do not have a right to transmit under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements); (6) use any information received through the Services to attempt to identify other customers, to contact other customers , or for any forensic use; (7) download any file posted by another user of the Service that you know, or reasonably should know, cannot legally be distributed in such manner; (8) upload, post, email or otherwise transmit any content that infringes any patent, trademark, trade secret, copyright, or other proprietary rights (“Rights”) of Vitalistics or any other party; (9) harm minors in any way; (10) advertise or offer to sell or buy any goods or services for any business purpose, unless such area specifically allows such messages; (11) upload, post, email, or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation, except in those areas that are designated for such purpose and only to the extent such content is authorized by law; (12) upload, post, email, or otherwise transmit any material that contains software viruses or any other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment; (13) use manual or automated software, devices, scripts robots, other means or processes to access, “scrape,” “crawl” or “spider” any web pages or other services contained in the site, unless explicitly permitted by Vitalistics; (14) engage in “framing,” “mirroring,” or otherwise simulating the appearance or function of Vitalistics website; (15) attempt to or actually override any security component of Vitalistics web services; (16) interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies, or regulations of networks connected to the Service; (17) violate these Terms of Service, any code of conduct or other guidelines which may be applicable for any particular area of the Service or have been communicated to you by anyone affiliated with Vitalistics; or (18) intentionally or unintentionally violate any applicable local, state, national, or international law, or any regulations having the force of law.
You acknowledge and agree that you are solely responsible for (and that Vitalistics has no responsibility to you or any third party for) any breach of your obligations under the TOS and for the consequences (including any loss or damage which Vitalistics may suffer) of any such breach. In case of breach of any one of these agreements Vitalistics has the right to suspend or terminate your account and refuse any and all current or future use of the Services (or any portion thereof) and you will defend, indemnify and hold Vitalistics and its affiliates harmless against any liability, costs, or damages arising out of the breach of the representation.
If you violate the terms of this Section and/or Vitalistics has a reasonable ground to suspect that you have violated the terms of this Section, Vitalistics has the right to suspend or terminate your account and refuse any and all current or future use of the Service (or any portion thereof).
11. Export Control and Applicable Laws and Regulations
Recognizing the global nature of the Internet, you agree to comply with all local rules regarding online conduct and acceptable content. Specifically, you agree 1) that providing your Sleep Assessment and Home Sleep Test Kit information is not subject to any export ban or restriction in the country in which you reside, 2) that your sample and data may be transferred and/or processed outside the country in which you reside, and 3) that you will comply with all applicable laws regarding the transmission of technical data exported from the United States or the country from which you access Vitalistics Services online.
12. Material Posted Through The Service
Vitalistics will not, at all times, control any of the User Content posted via the Service and, as such, does not guarantee the accuracy, integrity, or quality of such non-Vitalistics content. You understand that by using the Services, you may be exposed to content that is offensive, indecent, or objectionable. Under no circumstances will Vitalistics be liable in any way for any non-Vitalistics content, including, but not limited to, any errors or omissions in any such content, or for any loss or damage of any kind incurred as a result of the use of any such content posted, emailed, or otherwise transmitted via the Services.
You acknowledge that Vitalistics and its designees shall have the right (but not the obligation) in their sole discretion to pre-screen, review, filter, modify, refuse, or move any content that is available via the Services. Without limiting the foregoing, Vitalistics
and its designees shall have the right to remove any content that violates the TOS or is deemed by Vitalistics, in its sole discretion, to be otherwise objectionable. You acknowledge and agree that you must evaluate, and bear all risks associated with, the use of any content, including any reliance on the accuracy, completeness, or usefulness of such content.
13. Material Provided to Vitalistics – Your Proprietary Rights
User Content. Vitalistics does not claim ownership of the User Content you provide to Vitalistics (including feedback and suggestions) or post, upload, input, or submit to the Service. Unless otherwise specified, you retain copyright and any other rights you already hold over User Content that you create and submit, post, or display on or through the Services. However, for content that is covered by intellectual property rights, by submitting, posting, or displaying User Content, you specifically give Vitalistics, its affiliated companies, sublicensees (including but not limited to sublicensees who avail themselves of the Limited License granted in Section 9 above) and successors and assigns a perpetual, irrevocable, worldwide, royalty-free, transferrable, sublicensable, royalty-free, worldwide, and non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display, distribute, reproduce, edit, reformat, create derivative works, and otherwise use any IP Content from any User Content that you submit, post, or display on or through the Services (IP License). You acknowledge and agree that this license includes a right for Vitalistics to make such User Content available to other companies, organizations, or individuals with whom Vitalistics has relationships, and to use such User Content in connection with the provision of those services. This IP License ends when you delete your IP content or your account unless your content has been shared with others, and they have not deleted it.
You understand that Vitalistics may (a) transmit or distribute your User Content over various public networks and in various media; and (b) make such changes to your content as are necessary to conform and adapt that content to the technical requirements of connecting networks, devices, services, or media in performing the required technical steps to provide the Services to our users. You acknowledge and agree that this license shall permit Vitalistics to take these actions. You represent and warrant to Vitalistics that you have all the rights, power, and authority necessary to grant the above license.
Sleep Assessment and Home Sleep Test Kit Information. Disclosure of individual-level Sleep Assessment and Home Sleep Test Kit Information to third parties will not occur without explicit consent unless required by law. Note that Vitalistics cannot control any further distribution of Sleep Assessment and Home Sleep Test Kit Information that you share publicly on the Vitalistics website. You acknowledge and agree that you are responsible for protecting and enforcing those rights and that Vitalistics has no obligation to do so on your behalf.
Your Home Sleep Test Kit and/or Sleep Assessment, once submitted to and analyzed by us, is processed in an irreversible manner and cannot be returned to you. Any Sleep Assessment and Home Sleep Test Kit Information derived from you remains your information, subject to rights we retain as set forth in these TOS. You understand that you should not expect any financial benefit from Vitalistics as a result of having your Home Sleep Test Kit and/or Sleep Assessment processed; made available to you; or, as provided in our Privacy Statement and Terms of Service, shared with or included in Aggregated Sleep Assessment and Home Sleep Test Kit Information shared with research partners, including commercial partners.
Waiver of Property Rights. As stated above, you understand that by providing any sample, having your Home Sleep Test Kit and/or Sleep Assessment processed, accessing your Sleep Assessment and Home Sleep Test Kit Information, or providing Home Sleep Test Kit and/or Sleep Assessment, you acquire no rights in any research or commercial products that may be developed by Vitalistics or its collaborating partners. You specifically understand that you will not receive compensation for any research or commercial products that include or result from your Sleep Assessment and Home Sleep Test Kit Information. Further, subject to the consents required by applicable law, you hereby grant to Vitalistics and Vitalistics shall have, an irrevocable, perpetual, worldwide, non‑exclusive, royalty-free, fully paid-up right and license to use, reproduce, display, publish, copy, modify, adapt, adopt, enhance, distribute, perform and prepare derivative works based upon your Sleep Assessment and Home Sleep Test Kit Information, and Vitalistics shall own all right, title and interest to any derivative works created from such Sleep Assessment or Home Sleep Test Kit Information.
You agree to defend, indemnify and hold Vitalistics, and its subsidiaries, affiliates, officers, agents, contractors, partners, employees, successors, and assigns harmless from any claim, or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of User Content you submit, post to, or transmit through the Service; your use of the Service; your connection to the Service; your violation of the TOS; or your violation of any rights of another.
If you have submitted a Home Sleep Test Kit and/or Sleep Assessment or otherwise provided your own Home Sleep Test Kit and/or Sleep Assessment, you will defend, indemnify and hold harmless Vitalistics, its employees, contractors, successors, and assigns from any liability arising out of the use or disclosure of any information obtained from processing your Home Sleep Test Kit and/or Sleep Assessment and/or analyzing your Home Sleep Test Kit and/or Sleep Assessment, which is disclosed to you consistent with our Privacy Statement or results from any third-party add-ons to tools we provide. In addition, if you choose to provide your Sleep Assessment and Home Sleep Test Kit Information to third parties – whether individuals to whom you facilitate access, intentionally or inadvertently, or to third parties for diagnostic or other purposes – you agree to defend and hold harmless Vitalistics, its employees, contractors, successors, and assigns from any and all liability arising from such disclosure or use of your Sleep Assessment and Home Sleep Test Kit Information.
15. No Resale of Service
Other than pursuant to the terms of the Limited License in Section 9 of this TOS or unless otherwise agreed in a separate agreement between you and Vitalistics, you agree not to display, distribute, license, perform, publish, reproduce, duplicate, copy, create derivative works from, modify, sell, resell, exploit, transfer, or transmit for any commercial purposes, all or any portion of the Service, use of the Service, or access to the Service.
16. General Practices Regarding Use and Storage
You acknowledge that Vitalistics may establish general practices and limits concerning use of the Services, including without limitation the maximum number of days that Personal Information and Services content will be retained by the Service, the maximum disk space that will be allotted on Vitalistics servers on your behalf, and the maximum number of times (and the maximum duration for which) you may access the Services in a given period of time. You acknowledge and agree that Vitalistics has no responsibility or liability for the deletion of or failure to store any messages, other communications, or other content maintained or transmitted by the Services; or for the loss of Sleep Assessment and Home Sleep Test Kit Information due to malfunction or destruction of data servers or other catastrophic events. You further acknowledge that Vitalistics reserves the right to change these general practices and limits in its sole discretion.
17. Modifications to Service
Vitalistics reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Services (or any part thereof) with or without notice. You acknowledge and agree that (i) modifications may result in a delay in computations for some of the Vitalistics features or Services, and (ii) Vitalistics shall not be liable to you or to any third party for any modification, suspension, or discontinuance of the Services.
The Software that you use may from time to time automatically download and install updates from Vitalistics. These updates are designed to improve, enhance, and further develop the Services and may take the form of bug fixes, enhanced functions, new software modules, and completely new versions. You agree to receive such updates (and permit Vitalistics to deliver these to you) as part of your use of the Services.
You acknowledge that Vitalistics may offer different or additional technologies or features to collect and/or interpret Home Sleep Test Kit and/or Sleep Assessment in the future and that your initial purchase of the Service does not entitle you to any different or additional technologies or features for collection or interpretation of your Home Sleep Test Kit and/or Sleep Assessment without fee, and that you will have to pay additional fees in order to have your Home Sleep Test Kit and/or Sleep Assessment collected, processed, and/or interpreted using any future or additional technologies or features.
The TOS will continue to apply until terminated by either you or Vitalistics as set out in this Section.
If you want to terminate your legal agreement with Vitalistics, you may do so by notifying Vitalistics at any time in writing, which will entail closing your accounts for all of the Services that you use. Your notice should be sent, in writing, to Vitalistics address, which is set out at the beginning of the TOS, or online via Customer Care. If you provide notice online, Vitalistics will send you an email asking you to confirm your request, and your notice will be effective following receipt of a second email confirmation from you.
Vitalistics may at any time, terminate its legal agreement with you (and in conjunction therewith, your password and account(s)) if: (1) you have breached any provision of the TOS (or have acted in manner which shows that you do not intend to, or are unable to comply with, the provisions of the TOS); (2) Vitalistics is required to do so by law (for example, where the provision of the Services to you is, or becomes, unlawful); (3) the partner with whom Vitalistics offered the Services to you has terminated its relationship with Vitalistics or ceased to offer the Services to you; (4) Vitalistics is transitioning to no longer providing the Services to users in the country or state in which you reside or from which you use the Services; or (5) the provision of the Services to you by Vitalistics is, in Vitalistics opinion, no longer commercially viable.
Any suspected fraudulent, abusive, or illegal activity that may be grounds for termination of your use of the Services may be referred to appropriate law enforcement authorities. You acknowledge and agree that Vitalistics shall not be liable to you or any third party for any termination of your access to the Services.
19. Survival of Terms
When the TOS come to an end, all of the legal rights, obligations, and liabilities that you and Vitalistics have benefited from, been subject to (or which have accrued over time while the TOS have been in force) or which are expressed to continue indefinitely, shall be unaffected by this cessation, and the provisions of sections 1.(Definitions); 2.(Acceptance of Terms); 3.(Prerequisites); 4.(Description of the Services); 5.(Risks and Considerations Regarding Vitalistics Services); 6.(User Representations); 7.(Account Creation, Customer Account, Password and Security Obligations); 8.(Vitalistics Privacy Statement and Disclosure of Information); 10.(Customer Conduct – Unlawful and Prohibited Use); 11.(Export Control and Applicable Laws and Regulations); 12.(Material Posted through the Service); 13.(Material Provided to Vitalistics- Your Proprietary Rights); 14.(Indemnity); 15.(No Resale of Services); 18.(Termination); 19.(Survival of Terms); 20. (Dealings with Information Providers and Listed Resources); 21.(Hyperlinks and Vitalistics Website); 22. (Advertisements and Other Commercial Content Served or Enhanced by Vitalistics); 23. (Vitalistics Proprietary Rights);24.(Geographic Restrictions); 25.(DISCLAIMER OF WARRANTIES); 26.(LIMITATION OF LIABILITY); 27. (Notice); 29. (Violation or Suspected Violation of Terms of Service); and 30.(Miscellaneous) shall continue to apply to such rights, obligations, and liabilities indefinitely.
20. Dealings with Information Providers and Listed Resources
Your correspondence or business dealings with or participation in promotions of information providers, vendors, and/or resources found on or through the Service, including payment and delivery of related goods or services, and any other terms, conditions, warranties, or representations associated with such dealings, are solely between you and such information provider or resource. You acknowledge and agree that Vitalistics shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such information provider or resources on the Service.
21. Hyperlinks and the Vitalistics Website
The Service provides, and third parties may provide, links to other sites and resources on the Internet which are provided for your convenience only. This included links contained in advertisements, including banner advertisements and sponsored links. Because Vitalistics has no control over such sites and resources, you acknowledge and agree that Vitalistics is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any content, advertising, products, or other materials on or available from such sites or resources. You further acknowledge and agree that Vitalistics shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such content, goods, or services available on or through any such hyperlinked site or resource.
22. Advertisements and Other Commercial Content Served or Enhanced by Vitalistics
Our goal is to deliver advertising and other commercial or sponsored content that is valuable to our users and advertisers. In order to help us do that, you agree to the following:
- You give us permission to use your name, Sleep Assessment, content, and information in connection with commercial, sponsored, or related content served or enhanced by us. This means, for example, that you permit a business or other entity to pay us to display your name and/or sleep problem with your content or information, without any compensation to you.
- We do not give your content or information to advertisers without your consent.
- You understand that we may not always identify paid services and communications as such.
23. Vitalistics Proprietary Rights
You acknowledge and agree that Vitalistics (or Vitalistics licensors, as applicable) own all legal right, title, and interest in and to the Services, including any intellectual property rights (including but not limited to patents) which subsist in the Services (whether those rights happen to be registered or not, and wherever in the world those rights may exist). You further acknowledge that the Services may contain information which is designated confidential by Vitalistics and that you shall not disclose such information without Vitalistics prior written consent.
You further acknowledge and agree that the Services and any necessary software used in connection with the Services (“Software”) contain proprietary and confidential information that is protected by applicable intellectual property and other laws. You further acknowledge and agree that information presented to you through the Services or sponsors is protected by copyrights, trademarks, service marks, patents, or other proprietary rights and laws. Except as expressly authorized by Vitalistics, you agree not to and not to permit anyone else to modify, rent, lease, loan, sell, distribute, or create derivative works of, reverse engineer, decompile, or otherwise attempt to extract the source code of the Services or Software or any part thereof, in whole or in part. Software, if any, that is made available to download from the Services, excluding software that may be made available by end-users through the Services, is the copyrighted work of Vitalistics and/or its suppliers. Your use of the Software is governed by the terms of the end user license agreement, if any, which accompanies or is included with the Software (“License Agreement”). You may not install or use any Software that is accompanied by or includes a License Agreement unless you first agree to the License Agreement terms.
Vitalistics, LLC, Vitalistics, and other Vitalistics logos and product and service names are trademarks of Vitalistics and these marks together with any other Vitalistics trade names, service marks, logos, domain names, and other distinctive brand features are the “Vitalistics Marks.” Unless you have agreed otherwise in writing with Vitalistics, other than through the Limited License in Section 9, nothing in the TOS gives you a right to use any Vitalistics Marks, and you agree not to display, or use in any manner, Vitalistics Marks.
You agree that you shall not remove, obscure, or alter any proprietary rights notices (including copyright and trademark notices) that may be affixed to or contained within the Services.
Unless you have been expressly authorized to do so in writing by Vitalistics, you agree that in using the Services, you will not use any trademark, service mark, trade name, logo of any company or organization in a way that is likely or intended to cause confusion about the owner or authorized user of such marks, names, or logos.
For any Software not accompanied by a License Agreement, Vitalistics grants you a personal, non-transferable, and non-exclusive right and license to use the object code of its Software on a single computer. You may not (and may not allow any third party to) copy, modify, create a derivative work of, reverse engineer, reverse assemble, or otherwise attempt to discover any source code, sell, assign, sublicense, grant a security interest in, or otherwise transfer any right in the Software unless this is expressly permitted or required by law, or unless you have been specifically told that you may do so by Vitalistics, in writing. This license is for the sole purpose of enabling you to use and enjoy the benefit of the Services as provided by Vitalistics, in the manner permitted by the TOS. Unless Vitalistics has given you specific written permission to do so, you may not assign (or grant a sublicense of) your rights to use the Software, grant a security interest in or over your rights to use the Software, or otherwise transfer any part of your rights to use the Software. You agree not to modify the Software in any manner or form, or to use modified versions of the Software, including (without limitation) for the purpose of obtaining unauthorized access to the Service. You agree not to access the Service by any means other than through the interface that is provided by Vitalistics for use in accessing the Service. Any rights not expressly granted herein are reserved.
24. Geographic Restrictions
The owner of the site is based in the United States. We provide this Site for use only by persons located in the United States. We make no claims or representations that the Site or any of its content is accessible or appropriate outside of the United States. Access to the Site may not be legal by certain persons or in certain countries. If you access the site from outside of the United States, you do so on your own initiative and are responsible for compliance with local laws.
25. Disclaimer of Warranties
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT (1) YOUR USE OF THE SERVICES ARE AT YOUR SOLE RISK. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. VITALISTICS EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. (2) VITALISTICS MAKES NO WARRANTY THAT (a) THE SERVICES WILL MEET YOUR REQUIREMENTS; (b) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, UNFAILINGLY SECURE, OR ERROR-FREE; (c) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE; (d) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICES WILL MEET YOUR EXPECTATIONS AND (e) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED. (3) ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. (4) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM VITALISTICS OR FROM THE SERVICES PROVIDED SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TOS. (5) YOU SHOULD ALWAYS USE CAUTION WHEN GIVING OUT ANY PERSONALLY IDENTIFYING INFORMATION ABOUT YOURSELF OR THOSE FOR WHOM YOU HAVE LEGAL AUTHORITY. VITALISTICS DOES NOT CONTROL OR ENDORSE ANY ACTIONS RESULTING FROM YOUR PARTICIPATION IN THE SERVICES AND, THEREFORE, VITALISTICS SPECIFICALLY DISCLAIMS ANY LIABILITY WITH REGARD TO ANY ACTIONS RESULTING FROM YOUR PARTICIPATION IN THE SERVICES.
26. Limitation of Liability
WITHIN THE LIMITS ALLOWED BY APPLICABLE LAWS, VITALISTICS SHALL NOT BE LIABLE TO YOU FOR ANY AMOUNTS REPRESENTING YOUR LOSS OF PROFITS, LOSS OF BUSINESS, OR INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL, OR PUNITIVE DAMAGES (EVEN IF PREVIOUSLY APPRISED OF THE POSSIBILITY THEREOF) ARISING FROM (a) ANY ACTS OR OMISSIONS ASSOCIATED THEREWITH OR RELATED TO THE USE OF ANY SERVICES FURNISHED HEREUNDER, (b) THE USE OR THE INABILITY TO USE THE SERVICES; (c) ANY ACTION YOU TAKE BASED ON THE INFORMATION YOU RECEIVE IN THROUGH OR FROM THE SERVICES, (d) YOUR FAILURE TO KEEP YOUR PASSWORD OR ACCOUNT DETAILS SECURE AND CONFIDENTIAL, (e) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION, OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICES; (f) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (g) THE IMPROPER AUTHORIZATION FOR THE SERVICES BY SOMEONE CLAIMING SUCH AUTHORITY; or (h) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICES.
IN NO EVENT SHALL VITALISTICS AGGREGATE LIABILITY TO YOU OR ANY THIRD PARTY FOR ANY CLAIMS, LOSSES, INJURIES, SUITS, DEMANDS, JUDGMENTS, LIABILITIES, COSTS, EXPENSES OR DAMAGES FOR ANY CAUSE WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, THOSE ARISING OUT OF OR RELATED TO THESE TOS) AND REGARDLESS OF THE FORM OF ACTION OR LEGAL THEORY, EXCEED THE TOTAL FEES PAID BY YOU TO VITALISTICS IN THE SIX (6) MONTHS PRIOR TO THE DATE THE EVENT THAT GAVE RISE TO CAUSE OF ACTION OCCURRED. THESE LIMITATIONS OF LIABILITY REFLECT THE ALLOCATION OF RISK BETWEEN THE PARTIES. THE LIMITATIONS SPECIFIED IN THIS SECTION 26 WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THESE TOS IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. THE PARTIES AGREE THAT THE TERMS OF THIS SECTION 26 ARE CONTINUING AND SHALL SURVIVE THE TERMINATION OR EXPIRATION OF THESE TOS.
Notices to you may be made via either email, regular mail, or through your Vitalistics My Account Dashboard. Vitalistics may also provide notices of changes to the TOS or other matters by displaying notices or links to notices to you generally on or through the Services.
Official notices related to this TOS must be sent to us at:
ATTN: Privacy Officer
222 South 15th Street, Suite 1005N
Omaha, NE 68102
Additionally, Vitalistics accepts service of process at this address. Any notices that you provide without compliance with this section on Notices shall have no legal effect.
28. Changes to the Terms of Service
Vitalistics may make changes to the TOS from time to time. When these changes are made, Vitalistics will make a new copy of the TOS available on its website and any new additional terms will be made available to you from within, or through, the affected Services.
You acknowledge and agree that if you use the Services after the date on which the TOS have changed, Vitalistics will treat your use as acceptance of the updated TOS.
29. Violation or Suspected Violation of Terms of Service
If you violate the terms of these TOS and/or Vitalistics has a reasonable ground to suspect that you have violated the terms of these TOS, Vitalistics has the right to suspend or terminate your account and refuse any and all current or future use of the Services (or any portion thereof).
- Entire Agreement.The TOS constitute the entire agreement between you and Vitalistics and govern your use of the Services, superseding any prior agreements between you and Vitalistics on this subject. You also may be subject to additional terms and conditions that may apply when you use affiliate services, third-party content, or third-party software
- Applicable law and arbitration.Except for any disputes relating to intellectual property rights, obligations, or any infringement claims, any disputes with Vitalistics arising out of or relating to the Agreement (“Disputes”) shall be governed by Nebraska law regardless of your country of origin or where you access Vitalistics, and notwithstanding of any conflicts of law principles and the United Nations Convention for the International Sale of Goods. Any Disputes shall be resolved by final and binding arbitration under the rules and auspices of the American Arbitration Association, to be held in Omaha, Nebraska, in English, with a written decision stating legal reasoning issued by the arbitrator(s) at either party’s request, and with arbitration costs and reasonable documented attorneys’ costs of both parties to be borne by the party that ultimately loses. Either party may obtain injunctive relief (preliminary or permanent) and orders to compel arbitration or enforce arbitral awards in any court of competent jurisdiction.
- The failure of Vitalistics to exercise or enforce any right or provision of the TOS shall not constitute a waiver of such right or provision. If any provision of the TOS is 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, and the other provisions of the TOS remain in full force and effect.
- Term for cause of action. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Services or the TOS must be filed within one (1) year after such claim or cause of action arose or be forever barred.
- Admissibility of a printed version. A printed version of this agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
- Section titles. The section titles in the TOS are for convenience only and have no legal or contractual effect.
- Severability Clause. If any portion of these TOS is found to be unenforceable, the remaining portion will remain in full force and effect. Parties will replace the invalid parts with conditions that are indeed valid, and which, in view of the content and intent of these Terms and Conditions, conform to the judicial effects of the invalid part as closely as possible.
- We reserve the right to modify, supplement or replace the terms of the Agreement, effective upon posting at www.Vitalistics.com or notifying you otherwise. If you do not want to agree to changes to the Agreement, you can terminate the Agreement at any time per Section 18 (Termination).
- Assignment: You may not assign or delegate any rights or obligations under the Agreement. Any purported assignment and delegation shall be ineffective. We may freely assign or delegate all rights and obligations under the Agreement, fully or partially without notice to you. We may also substitute, by way of unilateral novation, effective upon notice to you, Vitalistics for any third party that assumes our rights and obligations under this Agreement.
*Vitalistics data on file.