TERMS OF SERVICE
Last updated: September 1, 2022
Welcome to the Vitalant Donor App! Vitalant (“Vitalant,” “we,” “our,” or “us”) makes its donor mobile application and/or extensions, application programming interfaces, scheduling features and functionalities, geo-location targeting, social media sharing functionality, and content sharing capabilities (collectively, herein the “Services”) available to you (“you,” or “your”) for your use subject to the terms and conditions in these Terms of Service (the “Agreement”).
If you do not accept any of the terms of this Agreement and/or you do not meet or comply with its provisions, you may not use the Services. The disclaimers, terms, and conditions in this Agreement are of general application and may be supplemented by additional policies, procedures, disclaimers, guidelines, rules, terms, and conditions of specific application that we disclose.
IMPORTANT NOTICE: YOUR USE OF THE SERVICES IS SUBJECT TO AN ARBITRATION PROVISION IN SECTION 8 OF THIS AGREEMENT, REQUIRING ALL CLAIMS TO BE RESOLVED BY WAY OF BINDING ARBITRATION. PLEASE CAREFULLY REVIEW SECTION 8 OF THIS AGREEMENT FOR MORE INFORMATION.
1. SERVICES
1.1. Vitalant’s Rights in and to Vitalant Materials. Our Services, our systems, and any and all other information, data, documents, materials, works and other content, devices, methods, processes, hardware, software and other technologies and inventions, including any technical or functional descriptions, requirements, plans, specifications, or reports, that are provided or used by Vitalant or any subcontractor engaged by Vitalant in connection with the Services or otherwise comprise or relate to the Services, the designs of each of the foregoing, and any and all intellectual property rights in the foregoing (collectively, the “Vitalant Materials”) shall at all times remain the exclusive property of Vitalant and its third-party licensors. Any third party software included in the Services is licensed subject to the additional terms of the applicable third party license.
1.2. Grant of License. On the condition that you comply with all your obligations under this Agreement, and subject to additional terms of any third-party licenses applicable to third-party software included in the Services, we hereby grant to you a limited, revocable, non-exclusive, non-transferable, right to access and use the Services solely for your own personal purposes. We reserve all rights not otherwise expressly granted by this Agreement. If you do not comply with this Agreement, we reserve the right to revoke any license granted in this Agreement and limit your access to the Services. Any use of the Services that exceeds the rights expressly granted in this Agreement is strictly prohibited and constitutes a violation of this Agreement, which may result in the termination of your right to access and use the Services. You are not acquiring any rights in or to the Vitalant Materials other than a non-exclusive right to access and use the Services solely in accordance with the terms of this Agreement.
1.3. Modification. We may discontinue or alter any aspect of the Services, restrict the time the Services are available, and restrict the amount of use permitted at our sole discretion and without prior notice or liability to you. We may also install bug fixes, updates, patches, and other upgrades to the Services without prior notice or liability to you. Your only remedy is to discontinue using the Services if you do not want a modification we make to the Services.
1.4. Removal of Access. Your access to the Services is provided with no guarantee for future availability or continued right of access. You agree that we may immediately suspend or terminate your access to the Services or any part thereof. Cause for such measures include, without limitation: (1) your breach or violation of this Agreement, or other incorporated agreements or guidelines; (2) discontinuance or material modification to the Services; (3) unexpected technical or security issues or problems; (4) extended periods of inactivity; or (5) your engagement in fraudulent or illegal activities. You further agree that such measures may be taken in our sole discretion and without liability to you or any third party.
1.5. Defects and Availability. We use commercially reasonable efforts to maintain the Services, but we are not responsible for any defects or failures associated with the Services, any Feedback you provide, or any damages (such as lost profits or any other consequential or indirect damages) that may result from any such defects or failures. The Services may be inaccessible or inoperable for any reason, including, without limitation: (1) equipment malfunctions; (2) periodic maintenance procedures or repairs which we may undertake from time to time; or (3) causes beyond our reasonable control or which we could not reasonably foresee. You understand that the Services are provided over the Internet, so the quality and availability of the Services may be affected by factors outside of our control. The Services are not intended to be available 100% of the time and we do not make any representations, warranties, or guarantees regarding the reliability or availability of the Services. We do not represent, warrant, or guarantee that the Services will always be completely free of human or technological errors. We will not be liable to you or any third party for damages or losses related to the Services being unavailable.
1.6. Restrictions. You may not: (1) license, sublicense, sell, resell, transfer, assign, distribute, or otherwise commercially exploit or make available to any third party any portion of the Services in any way; (2) copy, modify, adapt, alter, translate, create derivative works, reverse engineer, decompile, disassemble, or otherwise attempt to learn the source code, structure, or ideas upon which the Services are based; (3) use the Services or Vitalant Content (defined below) to develop a competing service or product; (4) use any device, software, or routine intended to damage or otherwise interfere with the proper functioning of the Services, servers, or networks connected to the Services or take any other action that interferes with any other person’s use of the Services; (5) decrypt, transfer, create Internet links to the Services, or “frame” or “mirror” the Services on any other server or wireless or Internet-based device; (6) use or merge the Services or any component thereof with other software, databases, or services not provided or approved by us; (7) circumvent or attempt to circumvent any electronic protection measures in place to regulate or control access to the Services; (8) use the Services for unlawful purposes; (9) develop, distribute, or sell any software or other functionality capable of launching, being launched from, or otherwise integrated with the Services; (10) use any bot, spider, or other automatic or manual device or process for the purpose of harvesting or compiling information on the Services for any reason; (11) access or attempt to access any other user’s account; (12) use any Vitalant Content made available through the Services in any manner that misappropriates any trade secret or infringes any copyright, trademark, patent, rights of publicity, or other proprietary right of any party; (13) introduce into the Services any virus, rogue program, Trojan horse, worm or other malicious or intentionally destructive code, software routines, or equipment components designed to permit unauthorized access to or disable, erase, or otherwise harm the Services, or perform any such actions; (14) introduce into the Services any back door, time bomb, drop dead device, or other software routine designed to disable a computer program automatically with the passage of time or under the positive control of an unauthorized person; (15) delete, modify, hack, or attempt to change or alter the Services, Vitalant Content, or notices on the Services; (16) connect to or access any Vitalant computer system or network other than the Services; or (17) impersonate any other person or entity to use or gain access to the Services.
1.7. Prosecution. We reserve the right to investigate and prosecute violations of any of the restrictions described in Section 1.6 to the fullest extent of the law. We may involve and cooperate with law enforcement authorities in prosecuting users who violate this Agreement.
2. CONTENT AND MATERIALS ON THE SERVICES
2.1. Vitalant Content. The Services may include or provide access to information, software, photos, videos, text, graphics, music, sounds, and other material or information provided by us or third parties, and may allow you to access data, documents, works, methods, processes, assessments, surveys, or reports that are provided or used by Vitalant in connection with the Services, or otherwise comprise or relate to the Services (collectively, the “Vitalant Content”) that are protected by copyrights, patents, trademarks, trade secrets, or other intellectual property laws. You are not acquiring any rights in or to the Vitalant Content other than a non-exclusive right to access and use the Vitalant Content solely in accordance with the terms of this Agreement and solely in connection with your use of the Services. You understand and agree that Vitalant’s rights in any Vitalant Content are valid and protected in all forms, media, and technologies existing now or developed in the future. You may not obscure or remove any proprietary rights notices contained in or on the Vitalant Content.
2.2. User Content License. The Services include features that may allow you to upload, submit, store, or send data, information or content through the Services (collectively, “User Content”). User Content may include any form of content including, without limitation, image, video, text, or audio. By submitting User Content to the Services, you grant Vitalant a transferable, nonexclusive, worldwide, perpetual, irrevocable, royalty-free right and license to use, reproduce, modify, edit, adapt, publish, translate, display, distribute, sublicense through multiple tiers, dispose of, assign, create derivative works of, and compilations incorporating User Content for the purposes of: (i) providing the Services, and (ii) carrying out other lawful business purposes. We reserve the right to remove User Content from the Services at any time and for any reason without notification to you. YOU AGREE THAT YOU WILL EVALUATE AND BEAR ALL RISK RELATED TO THE USE OF, OR ANY ACTIVITIES ASSOCIATED WITH, USER CONTENT THAT YOU POST OR PROVIDE THROUGH THE SERVICE. THE RESULTS OF ANY ACTIONS YOU TAKE BASED ON USER CONTENT, VITALANT CONTENT, OR OTHER CONTENT YOU FIND ON THE SERVICE ARE SOLELY YOUR RESPONSIBILITY. UNDER NO CIRCUMSTANCES WILL WE BE LIABLE IN ANY WAY FOR USER CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF ANY USER CONTENT PROCESSED THROUGH THE SERVICES.
2.3. User Content Restrictions. You may not upload, post, or transmit any User Content that: (1) would violate or infringe the proprietary, privacy, publicity, or intellectual property rights of Vitalant, or any third party; (2) is obscene, defamatory, threatening, harassing, abusive, libelous, hateful, or harmful to any other person or entity; (3) violates any applicable law, statute, ordinance, or regulation; (4) puts in jeopardy the security of your account, Vitalant, or the Services; (5) promotes or displays any of the following content: (a) pornography; (b) violence; (c) racial intolerance or advocacy against any individual, group, or organization; (d) profanity; or (e) illicit drugs and drug paraphernalia; or (6) may otherwise be objectionable or offensive to a reasonable person. We reserve the right, but have no obligation, to pre-screen, review, flag, filter, modify, refuse, and remove any and all User Content from the Services. The restrictions set forth in the preceding sentence may be referred to collectively as the “Acceptable Use Terms.” You understand and expressly acknowledge that by using the Services you may be exposed to content that you find offensive, indecent, or objectionable and that we will not be liable to you or any other person or entity for your consumption of any content on the Services.
2.4. NO MEDICAL ADVICE. YOU ACKNOWLEDGE AND AGREE THAT VITALANT DOES NOT PROVIDE ANY FORM OF MEDICAL OR PSYCHIATRIC CARE, OPINION, ADVICE, DIAGNOSIS, OR TREATMENT, AND THAT VITALANT DOES NOT EVALUATE THE NEED TO SEEK MEDICAL OR PSYCHIATRIC ATTENTION THROUGH THE SERVICES OR VITALANT CONTENT. THE SERVICES AND VITALANT CONTENT ARE FOR INFORMATIONAL PURPOSES ONLY. ALTHOUGH THE SERVICES AND VITALANT CONTENT MAY BE PROVIDED BY INDIVIDUALS IN THE MEDICAL OR PSYCHIATRIC PROFESSIONS, THE PROVISION OF THE SERVICES AND VITALANT CONTENT DOES NOT CREATE A DOCTOR-PATIENT RELATIONSHIP, AND DOES NOT CONSTITUTE A MEDICAL OR PSYCHIATRIC OPINION, ADVICE, DIAGNOSIS, OR TREATMENT OF ANY PARTICULAR CONDITION. THE SERVICES AND THE VITALANT CONTENT ARE NOT INTENDED TO BE A SUBSTITUTE FOR PROFESSIONAL MEDICAL OR PSYCHIATRIC ADVICE, DIAGNOSIS, OR TREATMENT. YOU SHOULD ALWAYS SEEK THE ADVICE OF YOUR PHYSICIAN OR OTHER QUALIFIED HEALTHCARE PROVIDER WITH ANY QUESTIONS YOU MAY HAVE REGARDING A MEDICAL OR MENTAL CONDITION.
2.5. Feedback. We welcome your comments, feedback, information, or materials regarding the Services or any of our other products or services (collectively, “Feedback”). Your Feedback will become our property upon your submission to us. By submitting your Feedback to us, you agree to assign, and hereby irrevocably assign to us, all right, title, and interest in and to the Feedback and all copyrights and other intellectual property rights embodied in such Feedback on a worldwide basis. We will be free to use, copy, distribute, publish and modify your Feedback on an unrestricted basis, without compensation to you. Moreover, you hereby assign or waive, as the case may be, any moral rights that you may have in or to the Feedback.
2.6. Links; Third Party Materials. The Services may include content provided by third parties and/or links to other websites or resources on the Internet (collectively, “Third Party Materials”). Because we have no control over Third Party Materials, you acknowledge and agree that we are not responsible for the availability of such materials, and we do not endorse and are not responsible or liable for any content, advertising, products, or other materials on or available from such Third Party Materials or for any privacy or other practices of the third parties operating those websites or providing such materials. You further acknowledge and agree that we will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by, in connection with, resulting from your use of or reliance on any such Third Party Materials available on or through any such website or resource. We strongly encourage you to review any separate terms of use and privacy policies governing use of these third party websites and Third Party Materials.
2.7. Ownership of Intellectual Property. Vitalant or its licensors exclusively own all right, title and interest in and to the Services, the Vitalant Materials, the Vitalant Content, and Feedback, including but not limited to, all ideas, inventions, inferences, discoveries, source and object software code, developments, derivative works, enhancements, upgrades, fixes and patches, formats and processes, and all images, trademarks, service marks, logos and icons displayed or related therein or thereto (collectively, “Vitalant IP”). Except as expressly provided herein, you have no right, license, or authorization with respect to any of the Vitalant IP. You shall not assert any claims to the contrary or otherwise do anything inconsistent with the allocation of ownership herein, including, but not limited to, challenging the validity of the authorizations or any intellectual property rights granted herein. In the event you are ever deemed to be the owner of any of the Vitalant IP, you shall immediately take all necessary steps to evidence, transfer, perfect, vest, or confirm Vitalant’s right, title and interest in the Vitalant IP. Vitalant is not transferring or granting to you any right, title, or interest in or to (or granting you any license or other permissions in or to) any Vitalant IP. The sole exception of the foregoing reservation of rights is the limited, non-exclusive, and non-transferable authorization explicitly granted in Section 1.2, and which shall automatically terminate upon expiration or termination of this Agreement. Any unauthorized use of any Vitalant IP, whether owned by us or other parties, may violate copyright laws, trademark laws, privacy and publicity laws and communications regulations and statutes. Trademarks owned by third parties are the property of those respective third parties.
3. ACCOUNTS
3.1. Registration. Access to the Services requires you to be registered with us and to create a username and password. You are responsible for keeping your username and password secure, confidential, and up to date. For more information about our collection of personal information in connection with account registration on the Services, please review our Privacy Policy which notwithstanding any provision therein to the contrary, will also apply to any personal information collected about or from in connection with the Services. You are responsible for any damages to Vitalant or the Services resulting from unauthorized access to the Services from your account and we will have no liability to you or any third party for damages or loss related to such unauthorized access or use.
3.2. Eligibility. YOU MUST BE AT LEAST AGE THIRTEEN (13) TO USE THE SERVICES. BY ACCESSING, USING AND/OR SUBMITTING INFORMATION TO OR THROUGH THE SERVICES, YOU REPRESENT THAT YOU ARE NOT YOUNGER THAN AGE 13. IF YOU ARE BETWEEN AGE THIRTEEN (13) AND THE AGE OF MAJORITY IN YOUR PLACE OF RESIDENCE, YOU MAY USE THE SERVICES ONLY UNDER THE SUPERVISION OF YOUR PARENT OR LEGAL GUARDIAN. IF YOU ARE THE PARENT OR LEGAL GUARDIAN AND CONSENT TO YOUR MINOR CHILD’S ACCESS TO AND USE OF THE SERVICES, YOU AGREE TO BE BOUND BY THIS AGREEMENT ON BEHALF OF YOURSELF AND YOUR MINOR CHILD. WE ENCOURAGE YOU TO INVESTIGATE COMMERCIALLY-AVAILABLE PARENTAL CONTROL PROTECTIONS (SUCH AS COMPUTER HARDWARE, SOFTWARE OR FILTERING SERVICES) THAT MAY ASSIST YOU IN LIMITING ACCESS TO MATERIAL CONSIDERED HARMFUL TO MINORS.
3.3. Unauthorized Use and Information Changes. You must immediately notify us if your registration information changes or you learn of or have reason to suspect any unauthorized use of your account or any other breach of security. You are responsible for maintaining the security and confidentiality of your username and password (both to your Vitalant account and any other third party login) and are fully responsible for all activities that occur under your account. You also agree that you will provide truthful and accurate information during the registration process. We may refuse to grant you a particular username for any reason, including, without limitation, if we have reason to believe that such username impersonates another person or entity, is protected by trademark or other proprietary rights, or is vulgar or otherwise offensive.
3.4. Storing Credentials. The Services may allow you to store your login credentials so that you can be automatically logged in each time you access the Services. In that event, if someone else has access to your computer or web browser, the automatic login feature will allow that person to have access to your account. You are responsible for any damages to Vitalant or the Services resulting from unauthorized access to the Services from your account and we will have no liability to you or any third party for damages or loss related to such unauthorized access or use.
3.5. Deletion of Account and Personal Information. The Services allow you to request deletion of your mobile application account, and upon request we will delete your mobile application account and associated personal information. However, we have legal and regulatory requirements to maintain certain personal information (for example, information related to blood donations), and such personal information will be retained in accordance with our regulatory and legal requirements.
4. ACCESS THROUGH MOBILE DEVICES
4.1. Mobile Use. Your contract with your mobile network provider (“Mobile Provider”) will continue to apply when accessing or using the Services on your mobile, handheld device (“Mobile Device”). You understand that your Mobile Provider may charge you fees for your use of its network connection services while accessing or using the Services, for data downloading, e-mail, text messages, for roaming, and other Mobile Provider or third party charges. YOU ACCEPT RESPONSIBILITY FOR ALL MOBILE PROVIDER FEES.
4.2. Additional Terms Applicable on the Android Market/Google Play. Vitalant and you both agree and acknowledge that neither Google Inc., nor any of its subsidiaries or affiliates (“Google”), are a party to this Agreement, and you will look to Vitalant for any recourse, and not Google. You agree to be bound by the then-current Android Market Terms of Services as found on Google’s website: http://www.google.com/mobile/android/market-tos.html) and the Google Play Terms of Services (located at https://play.google.com/about/play-terms.html). You acknowledge that Google has no obligation whatsoever to furnish any maintenance and support services with respect to the Services. To the extent there is a conflict between any of the terms contained herein and those set forth in either the Android Market Terms of Services or Google Play Terms of Service, the Android Market Terms of Services or Google Play Terms of Services, whichever is applicable, will prevail and govern.
4.3. Additional Terms Applicable to iOS Devices. Vitalant and you both agree and acknowledge that neither Apple Inc., nor any of its subsidiaries or affiliates (“Apple”), are a party to this Agreement, and you will look to Vitalant for any recourse, and not Apple. You agree to be bound by the then-current Apple Media Services Terms and Conditions as found on Apple’s website: https://www.apple.com/ca/legal/internet-services/itunes/ca/terms.html. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Services. To the extent there is a conflict between any of the terms contained herein and those set forth in the Apple Media Services Terms and Conditions, the Apple Media Services Terms and Conditions will prevail and govern.
4.4. Mobile App Authentication. When using the Services on a mobile device, you may have the ability to use functionality available on your device that utilizes biometric data for purposes of authentication (i.e., Face ID or fingerprint scan). This biometric data is stored on your device; Vitalant does not collect, obtain, or otherwise have access to such biometric data.
5. REPRESENTATIONS
5.1. General Representations. You hereby represent and warrant that: (1) you (a) are at least the age of 13; and (b) have the power and authority to enter into and perform your obligations under this Agreement; (2) all information provided by you to us is truthful, accurate and complete; (3) you will comply with the terms and conditions of this Agreement and any other agreement to which you are subject that is related to your use of the Services, your Feedback, or any part thereof; (4) if applicable, you have provided and will maintain accurate and complete information with us, including, without limitation, your legal name, email address, and any other information we may reasonably require; (5) your access to and use of the Services or any part thereof will not constitute a breach or violation of any other agreement, contract, terms of use or any law or regulation to which you are subject; (6) you will immediately notify us in the event that you learn or suspect that the contact information you provided to us has been disclosed or otherwise made known to any other person; (7) you will not use the Services in order to gain competitive intelligence about us, the Services, or any product or service offered via the Services or to otherwise compete with us; and (8) your User Content does not violate the Acceptable Use Terms described in Section 2.3 herein.
5.2. Systems Representations. You represent that you shall, at all times during the term, procure, set up, maintain, and operate in good repair, at your sole cost and expense, all equipment, resources, technology, or systems, including computer hardware and equipment, any Internet access, third party software, and telecommunications service, necessary for you to access and use the Services (collectively, the “User Systems”). You further represent that in connection with your User Systems, you shall employ all physical, administrative, and technical controls, screening and security procedures, and other safeguards necessary to securely administer the distribution and use of the Services and Vitalant Content, and protect against any unauthorized access to or use of the Services.
5.3. Feedback Representations. In the event you provide any Feedback via the Services, you hereby make the following additional representations and warranties to us: (1) you are owner of such Feedback or otherwise have the right to grant us the licenses or assignments granted pursuant to this Agreement; (2) you have secured any and all consents necessary to provide the Feedback and to grant the foregoing licenses or assignments; (3) the Feedback does not violate the rights of any third party, including, without limitation, the intellectual property, privacy or publicity rights of any third party, and such Feedback does not contain any personally identifiable information about third parties in violation of such parties’ rights; (4) the use of any Feedback will not result in harm or personal injury to any third party; and (5) all factual information contained in the Feedback is true and accurate.
6. DISCLAIMERS OF WARRANTY TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE,” AND AT YOUR SOLE RISK. TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, TITLE, AND NON-INFRINGEMENT. WITHOUT LIMITATION, WE MAKE NO WARRANTY THAT THE SERVICES OR ANY VITALANT CONTENT WILL MEET YOUR REQUIREMENTS, THAT USE OF THE FOREGOING WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, THAT THE RESULTS OBTAINED FROM THE USE OF THE FOREGOING OR ANY INFORMATION OR CONTENT FOUND ON THE SERVICES WILL BE ACCURATE OR RELIABLE, THAT DEFECTS IN THE OPERATION OR FUNCTIONALITY OF THE SERVICES WILL BE CORRECTED, THAT THE SERVICES AND ANY CONTENT OR INFORMATION FOUND ON THE SERVICES WILL BE VIRUS-FREE, OR FREE FROM UNINTENDED ACCESS OR DISCLOSURE, OR THAT THE QUALITY OF ANY INFORMATION, CONTENT, OR OTHER MATERIALS OBTAINED THROUGH THE SERVICES WILL MEET YOUR EXPECTATIONS. VITALANT WILL HAVE NO LIABILITY REGARDING ANY UNINTENDED ACCESS TO, DISCLOSURE OF, OR LOSS OF DATA, OR FOR ANY DEFECTS IN THE OPERATION OR FUNCTIONALITY OF THE SERVICES. ANY CONTENT OR OTHER MATERIALS DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DONE AT YOUR SOLE RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. FURTHER, PLEASE NOTE THAT NO ADVICE OR INFORMATION, OBTAINED BY YOU THROUGH THE SERVICES OR ANY PRODUCT WILL CREATE ANY WARRANTY NOT EXPRESSLY PROVIDED FOR IN THIS AGREEMENT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
7. INDEMNITY; LIMITATION OF LIABILITY
7.1. Indemnity. YOU AGREE TO DEFEND, INDEMNIFY, AND HOLD HARMLESS VITALANT, OUR OFFICERS, MEMBERS, MANAGERS, EMPLOYEES, PARTNERS, AND AGENTS (COLLECTIVELY, “RELEASED PARTIES”) FROM AND AGAINST ANY AND ALL CLAIMS, LIABILITIES, DAMAGES, LOSSES, DEMANDS, OR EXPENSES, INCLUDING ATTORNEY’S FEES AND COSTS AND EXPENSES, ARISING OUT OF OR IN ANY WAY CONNECTED WITH: (A) YOUR USE OR MISUSE OF THE SERVICES, (B) YOUR VIOLATION OF THIS AGREEMENT, (C) YOUR VIOLATION OF ANY LAW OR THE RIGHTS OF ANY THIRD PARTY, (D) YOUR NEGLIGENCE OR WILLFUL MISCONDUCT; (E) ANY USER CONTENT YOU PROVIDE THROUGH THE SERVICES; OR (F) ANY OTHER CLAIM, PENALTY, VIOLATION, FINE, FEE (INCLUDING ATTORNEYS FEES), OR OCCURENCE ARISING FROM YOUR USE OR MISUSE OF THE SERVICES.
7.2. Limitation of Liability. UNDER NO CIRCUMSTANCES SHALL RELEASED PARTIES BE LIABLE DIRECT OR INDIRECT LOSSES OR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE OR INABILITY TO USE THE SERVICES, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IF YOU ARE DISSATISFIED WITH THE SERVICES, OR WITH THIS AGREEMENT, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SERVICES. IN ANY EVENT, THE TOTAL MAXIMUM AGGREGATE LIABILITY UNDER THIS AGREEMENT FOR THE USE OF ANY OR ALL PARTS OF THE SERVICES IN ANY MANNER WHATSOEVER SHALL BE LIMITED TO ONE HUNDRED DOLLARS ($100.00 USD).
7.3. For California Residents. IF YOU ARE A CALIFORNIA RESIDENT OR COULD OTHERWISE CLAIM THE PROTECTIONS OF CALIFORNIA LAW, YOU FURTHER EXPRESSLY WAIVE THE PROVISIONS OF SECTION 1542 OF THE CALIFORNIA CIVIL CODE, WHICH READS AS FOLLOWS: "A GENERAL RELEASE DOES NOT EXTEND TO THE CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE WHICH, IF KNOWN BY HIM OR HER, MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR." YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND SECTION 1542 OF THE CALIFORNIA CIVIL CODE, AND YOU HEREBY EXPRESSLY WAIVE AND RELINQUISH ALL RIGHTS AND BENEFITS UNDER THAT SECTION AND ANY LAW OF ANY JURISDICTION OF SIMILAR EFFECT WITH RESPECT TO YOUR RELEASE OF ANY CLAIMS YOU MAY HAVE AGAINST RELEASED PARTIES.
8. DISPUTE RESOLUTION AND GOVERNING LAW, JURISDICTION AND COSTS
8.1. Governing Law. This Agreement will be governed by and construed, interpreted, and enforced in accordance with the laws of the State of Arizona without reference to its conflicts or choice of law principles. Any arbitration or court proceeding will take place in Maricopa County, Arizona, and you hereby consent to the exclusive jurisdiction and venue of the state or federal courts in Maricopa County, Arizona. You irrevocably submit and consent to the personal jurisdiction of such courts.
8.2. Dispute Resolution. To the extent feasible, the parties desire to resolve any dispute, claim or controversy arising out of or relating to your use of or access to the Services, Vitalant Content, or Vitalant Materials, this Agreement or the breach, termination, enforcement, interpretation, or validity of this Agreement, including the determination of the scope or applicability of this agreement to arbitration (a “Dispute”) through discussions and negotiations between each other. The parties agree to attempt to resolve any Disputes by negotiation with the other party (by phone, electronic correspondence, or written correspondence). If we are not able to resolve any Dispute ourselves, you and Vitalant agree to resolve such Dispute through confidential binding arbitration as set forth below.
8.3. Binding Arbitration. If you and Vitalant are unable to resolve a Dispute through informal negotiations, either you or Vitalant may elect to have the Dispute (except those Disputes expressly excluded below) finally and exclusively resolved by binding arbitration. Any election to arbitrate by one party shall be final and binding on the other. The arbitration shall be commenced and conducted under the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) and, where appropriate, the AAA’s Supplementary Procedures for Consumer Related Disputes (“AAA Consumer Rules”) both of which are available at the AAA website www.adr.org. The determination of whether a Dispute is subject to arbitration shall be governed by the Federal Arbitration Act and determined by a court rather than an arbitrator. Your arbitration fees and your share of arbitrator compensation shall be governed by the AAA rules and, where appropriate, limited by the AAA Consumer Rules. The arbitration may be conducted in person, through the submission of documents, by phone or online. The arbitrator will make a decision in writing, but need not provide a statement of reasons unless requested by a party. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. Except as otherwise provided in this Agreement you and Vitalant may litigate in court to compel arbitration, stay proceeding pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator.
8.4. Waiver of Rights. You hereby agree that you understand the consequences of agreeing to binding arbitration under this Section, including giving up any constitutional rights to have the Dispute determined by a court of law or by a jury and any right that you may have under Article 13 of the State Bar Act to have a trial de novo by a court after nonbinding arbitration of a dispute concerning fees or costs; that discovery of information in arbitration may be limited; and that the arbitration decision will be final and binding, except to the limited extent that judicial review might be available. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS OR THROUGH PARTICIPATION IN A CLASS ACTION OR REPRESENTATIVE ACTION. CLAIMS OR DISPUTES OF MORE THAN ONE USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER USER.
9. MISCELLANEOUS
9.1. Term. This Agreement is effective upon your acceptance and will continue in full force until terminated by you or us. You may terminate this Agreement at any time by immediately discontinuing all access to the Services. Termination or cancellation of this Agreement will not affect any right or relief to which we may be entitled at law or in equity. We reserve the right to terminate this Agreement at any time and for any reason without prior notice to you. Further, you agree that we will not be liable to you or any third-party for any termination or suspension of your access to the Services or any part thereof.
9.2. Independent Contractors. You understand and expressly agree that you and Vitalant are independent contractors and not agents or employees of the other party. Neither you nor Vitalant has any right, power, or authority to act or create any obligation, express or implied, on behalf of the other party.
9.3. Consent to Do Business Electronically. We use and rely upon electronic records and electronic signatures for the execution and delivery of this Agreement and any other agreements, undertakings, notices, disclosures or other documents, communications or information of any type sent or received in accordance with this Agreement and in performing our obligations and exercising our rights under this Agreement. Neither you nor Vitalant will prevent or inhibit in any way the other party from printing, saving, or otherwise storing electronic records sent or otherwise made available to the other party. You agree not to contest the authorization for, or validity or enforceability of, electronic records and electronic signatures, or the admissibility of copies thereof, under any applicable law relating to whether certain agreements, files, or electronic records are to be in writing or signed by you to be bound thereby. You will bear your own costs and expenses in conducting business electronically, and will undertake all steps necessary, including software, hardware, and other equipment upgrades and purchases, in order to be able to conduct business electronically.
9.4. Equitable Relief. You agree that breach of the provisions of this Agreement would cause irreparable harm and significant injury to us which would be both difficult to ascertain and which would not be compensable by damages alone. As such, you agree that we have the right to enforce the provisions of this Agreement by injunction (without necessity of posting bond), specific performance, or other equitable relief without prejudice to any other rights and remedies we may have for your breach of this Agreement.
9.5. Privacy. We collect, store, and use data collected from you (including, without limitation, geolocation data) in accordance with our Privacy Policy. The terms and conditions of our Privacy Policy are hereby expressly incorporated into this Agreement.
9.6. DMCA Notice. Vitalant values and respects the intellectual property rights of others and requires that users of the Services do the same. Those using the Services cannot infringe upon or violate the intellectual property rights of another person or entity. In accordance with the Digital Millennium Copyright Act (see 17 U.S.C. §512(c)(3) for additional details), we will respond to and address any allegations of copyright infringement occurring as part of the Services. If you feel your intellectual property rights have been infringed upon, please contact Vitalant at https://www.vitalant.org/resources/contact-us with the following information: (1) a physical or electronic signature of the person permitted to act on behalf of the copyright owner; (2) the specific copyrighted information or a description of the copyrighted information; (3) a description of where the alleged copyright infringement has occurred as part of the Services; (4) contact information such as name, address, email address, phone number, or other means by which Vitalant can contact you; (5) a statement articulating you have a good faith belief that the use of materials on the Services is not authorized by the owner of the copyrighted material, its agent, or the law; and (6) a statement by you that the information you present is, under perjury of law, accurate and that you are permitted to act on behalf of the individual alleging the copyright infringement.
9.7. Entire Agreement. This Agreement and any hyperlinked policies and procedures constitute the entire agreement between you and Vitalant with respect to the Services and supersede all prior agreements, both oral and written, with respect to the Services. We may revise and update this Agreement from time to time and will post the updated Agreement to the Services. UNLESS OTHERWISE STATED IN THE AMENDED VERSION OF THIS AGREEMENT, ANY CHANGES TO THIS AGREEMENT WILL APPLY IMMEDIATELY UPON POSTING. Although we are not obligated to provide you with notice of any changes, any changes to this Agreement will not apply retroactively to events that occurred prior to such changes. Your continued use of the Services will constitute your agreement to any new provisions within the revised Agreement.
9.8. Waiver; Severability. Our failure to enforce any provision of this Agreement will not be deemed to be a waiver of our right to enforce them. If any term or provision of this Agreement will be held to be invalid, illegal, or unenforceable, the remaining terms and provisions of this Agreement will remain in full force and effect, and such invalid, illegal, or unenforceable term or provision will be deemed not to be part of this Agreement.
9.9. Assignment. You may not assign, transfer, or sell (voluntarily or by operation of law) your rights or obligations under this Agreement, nor delegate your duties hereunder to any other person, without our prior written consent. Any purported assignment without our consent will be void and will constitute a breach of this Agreement. We may assign this Agreement or delegate or subcontract our obligations under this Agreement at any time.
9.10. Survival. The provisions of this Agreement that by their content are intended to survive the expiration or termination of this Agreement, including, without limitation, provisions governing ownership and use of intellectual property, representations, disclaimers, warranties, liability, indemnification, governing law, jurisdiction, venue, remedies, rights after termination, and interpretation of this Agreement, will survive the expiration or termination of this Agreement for their full statutory period.
9.11. Contact Us. With questions, email support@vitalant.com or submit your question through our support services at support@vitalant.com.