Last Updated: June 21, 2019
BY ACCEPTING THESE TERMS OF SERVICE, ORDERING OUR SERVICES OR USING OUR SERVICES, YOU UNDERSTAND THAT THIS IS A LEGALLY BINDING AGREEMENT BETWEEN YOU AND VISUAL TELECOMMUNICATION NETWORK, LLC. (d/b/a ViTel Net) AND ITS AFFILIATES AND AGREE TO BE BOUND BY THE TERMS AND CONDITIONS HEREIN. PLEASE READ THESE TERMS OF SERVICE IN THEIR ENTIRETY. IF YOU DO NOT AGREE TO THESE TERMS OF SERVICE, DO NOT ACCESS OR USE OUR SERVICES.
THESE TERMS OF SERVICE CONTAIN IMPORTANT TERMS AND CONDITIONS THAT AFFECT YOU AND YOUR USE OF THE SERVICES, INCLUDING, UNLESS YOU CHOOSE TO OPT OUT, A PROVISION REGARDING BINDING ARBITRATION OF DISPUTES (OTHER THAN CERTAIN SPECIFIED INTELLECTUAL PROPERTY CLAIMS AND SMALL CLAIMS) AND A WAIVER OF CERTAIN RIGHTS TO JURY TRIALS AND/OR CLASS ACTIONS. PLEASE READ THE “DISPUTE RESOLUTION” SECTION (SECTION 17) IN ITS ENTIRETY.
Visual Telecommunication Network, LLC d/b/a ViTel Net (“ViTel Net,” “we,” “us” or “our”) are pleased to provide you access to, and use of certain hardware, platform services, software, websites, documentation, mobile applications, and content, including, without limitation, vCareCommand Platform, vCareNet point of care applications (collectively, the “Services”). The Services are more fully described at www.vitelnet.com. These Terms of Service (“Terms”) apply to your purchase, access to, and use of, any Services. These Terms do not alter in any way the terms or conditions of any other agreement you may have with ViTel Net for products, services or otherwise. If you are using the Services on behalf of any entity, as used herein “you” and “your” shall refer to you and any entity on whose behalf you are using the Services (the “Entity”).
ViTel Net reserves the right to change or modify these Terms on a going forward basis at any time and in our sole discretion. If ViTel Net makes changes to these Terms, we will provide notice of such changes as appropriate, such as by sending an email notification to the address you have provided, providing notice through the Services and/or updating the “Last Updated” date at the top of these Terms. Your or your Entities continued use of the Services will confirm your acceptance of the revised Terms. If you do not agree to the revised Terms, you must stop using the Services. We encourage you to review the Terms from time to time to ensure you understand the terms and conditions that apply to your access to, and use of, the Services.
1 Eligibility; Registration and Account
1.1 The Services are intended solely for use by adult clinicians who are appropriately licensed and adult patients that are permissioned by the Entity (each an “Eligible User”). Any registration for, or use of, the Services by anyone who is not an Eligible User is unauthorized, unlicensed and in violation of these Terms.
1.2 Registration by Individual Users
1.2.1 You represent and warrant that you (a) are not identified on the Office of Foreign Assets Control’s Specially Designated Nationals List (“SDN List”), (b) are not placed on the U.S. Department of Commerce’s Denied Persons List or Entity List or any other U.S. export control list, (c) will not use IP proxying or other methods to disguise the place of your usage of the Services, (d) will not use the Services if any applicable laws prohibit you from doing so in accordance with these Terms and (e) have not previously had your right to use the Services suspended or terminated.
1.2.2 To access and use certain features of the Services, you will be required to register for an account (the “Account”). By creating an account, you agree to: (i) provide accurate, current and complete account information; (ii) maintain the security of your password, not share your password with any other person and accept all risks of unauthorized access to your account; and (iii) promptly provide notice to ViTel Net support (firstname.lastname@example.org) and your local system administrator if you discover or otherwise suspect any security breaches related to the Services.
1.2.3 If you wish to either change your user name, phone, email address, or password to log-in to the Services, or cancel and remove your Account, you may request such change through your system administrator. Your Account will terminate within reasonable time following your administrator’s request to ViTel Net to terminate such Account.
1.3 Registration by Entity Representatives
1.3.1 You represent and warrant that (a) you are authorized to accept these Terms on behalf of the Entity in whose name you are setting up an account and that such Entity agrees to be responsible to us if you or that Entity violates these Terms, (b) the Entity is not placed on the U.S. Department of Commerce’s Denied Persons List or Entity List or any other U.S. export control list, (c) the Entity will not use IP proxying or other methods to disguise the place of usage of the Services, (d) you and the Entity will not use the Services if any applicable laws prohibit you or the Entity from doing so in accordance with these Terms and (e) you or the Entity have not previously had your right to use the Services suspended or terminated.
1.3.2 To access and use certain features of the Services, the Entity will be required to register for an Account. By creating an account, the Entity agrees to: (i) provide accurate, current and complete account information; (ii) maintain the security of all passwords used to access the Services, not allow password sharing and accept all risks of unauthorized access to the Account; and (iii) promptly provide notice to ViTel Net support (email@example.com) if the Entity discovers or otherwise suspects any security breaches related to the Services.
1.3.3 All requests to change user names, phone, email address, or passwords to log-in to the Services, or cancel and remove your Account must be made through your system administrator. Your Account will terminate within a reasonable time following your administrator’s request to ViTel Net to terminate such Account.
1.4 CANCELLING A HEALTH SYSTEM ACCOUNT MAY CAUSE INABILITY TO ACCESS THE ACCOUNT AND/OR THE LOSS OF CERTAIN INFORMATION (INCLUDING, WITHOUT LIMITATION, USER SESSIONS AND/OR CLINICAL IMAGES OR ANY PERSONAL INFORMATION). UNLESS BY APPLICABLE LAW WE ARE REQUIRED TO RETAIN INFORMATION FOR A LONGER PERIOD, YOU AND/OR THE ENTITY WILL HAVE A THIRTY (30) DAY PERIOD FROM THE CANCELLATION DATE TO COPY OR EXTRACT ANY INFORMATION WHICH WAS UPLOADED BY YOU OR THE ENTITY TO OUR SERVICES. THE INFORMATION MAY NOT BE RETAINED AFTER THIS THIRTY (30) DAY PERIOD. IT IS YOUR SOLE RESPONSIBILITY AND LIABILITY TO DOCUMENT YOUR AND, IF APPLICABLE, YOUR PATIENTS’ INFORMATION AS REQUIRED BY LAW (INCLUDING WITHOUT LIMITATION, UNDER APPLICABLE PRIVACY AND/OR HEALTH-RELATED-INFORMATION-LAW OR REGULATION).
1.5 If an Account is cancelled before the end of a Subscription Period (as such term is defined below), any prepaid Subscription Fee will be non-refundable.
2 Equipment; Software; Updates and Modifications
2.1 Certain equipment and software is required to access and use the Services. In addition, we may need to automatically update some of the software you obtain through the Services or provide you with new software to keep the Services functioning properly, which could include bug fixes, patches, enhanced features, missing plug-ins and new versions. By using the Services, you agree to such automatic updating.
2.2 We reserve the right to change the method of connecting to the Services at any time.
2.3 We reserve the right, in our sole discretion and where technically feasible, to disable your access to or ability to use Services that we believe present a health and safety risk or violate our community standards, agreements, laws, regulations or policies. We will not incur any liability or responsibility if we choose to remove, disable, or delete such access or ability to use any or all portion(s) of the Services.
3 Your Use of the Services and Content
3.1 Content and Software License. Except as otherwise agreed upon, if we enable the use of software, content, or other materials owned or licensed by us (“Software and Content”), we hereby grant you a limited, nonexclusive, non-sublicensable license to access, install, and use the Software and Content solely in connection with the Services and conditioned on your compliance with these Terms.
3.3 Printed Matter. Except as specifically set forth herein, no software or documentation which is provided by us pursuant to this Agreement in human readable form, such as written or printed documents, shall be copied in whole or in part by you without our prior written agreement. Additional copies of printed materials may be obtained from us at the charges then in effect.
3.4 Third-Party Content. Your use of services, applications, or content provided by third-parties (“Third-Party Content”) made available through the Services may be subject to additional end user agreements. In the event that these agreements conflict with the provisions of these Terms, the terms of those Agreements will govern. ViTel Net has no responsibility or liability with respect to your access to or use of the Third-Party Content, or any content or functionality contained in such Third-Party Content, your rights to which are solely provided pursuant to a license between you and the provider of such Third-Party Content. In no event shall ViTel Net be considered the licensor of the Third-Party Content, to have granted any rights to use the Third-Party Content, to have assumed any obligations with respect to the Third-Party Content, or to have made any representations or warranties with respect to the Third-Party Content.
3.5 Subscription Services. If you are obtaining the Services on a subscription basis, you will pay the fees specified in the quote provided by ViTel Net (the “Quote”). In case you are provided with multiple Quotes with respect to a given order, the Quote with the latest date shall govern. During the subscription period (the “Subscription Period”) you will receive access to the Services and any updates or upgrades thereto. Unless otherwise specified on the Quote, the Subscription Period will commence on the first use of the Services, but no later than 60 days from the purchase date and end 3 years later with annual billing in advance. Your ability to access the Services will terminate at the end of the Subscription Period and you shall not use the Services after the end of the Subscription Period.
3.6 Availability of Services after Purchase. Some Services may rely on services provided by third-parties for some or all of its functionality. Such Services may not function properly or may become inoperable if these third-parties discontinue their services. ViTel Net shall have no liability with respect to such discontinuance.
3.7 Availability. The Services may not be available in all territories and jurisdictions, and we may restrict or prohibit use of all or a portion of the Services in territories and jurisdictions where such use is prohibited.
3.8 Network Costs. You are responsible for providing network connectivity as required to access the Services and the payment of all fees related thereto.
4 Patient Information
4.1 Applicable national, state, regional and/or local laws, as well as applicable professional ethical obligations, may impose obligations with respect to patient confidentiality that may limit your ability to transmit certain information through the Services. It is your sole responsibility to comply with applicable laws, as well as institutional and professional guidelines with respect to patient confidentiality.
4.2 You are, at all times, solely responsible for obtaining and maintaining all patient consents, if applicable, and all other legally necessary consents or permissions required or advisable to disclose, process, retrieve, transmit, and view patient data. To the extent local laws oblige you to comply with privacy or health-related-information requirements, you should inform us regarding such requirements and to the extent we are able to assist we will address these requirements. Such assistance may incur a separately billed charge or a recurring charge.
4.3 EXCEPT FOR ITS OBLIGATIONS UNDER APPLICABLE LAW, VITEL NET DOES NOT ASSUME ANY RESPONSIBILITY FOR THE USE OR MISUSE OF PATIENT DATA, PROTECTED HEALTH INFORMATION OR ANY OTHER INFORMATION TRANSMITTED, MONITORED, STORED, OR RECEIVED BY YOU WHILE USING THE SERVICES. YOU MUST COMPLY WITH ALL APPLICABLE PRIVACY LAWS AND REGULATIONS. YOU MUST REFRAIN FROM UPLOADING OR SUBMITTING PERSONAL MEDICAL DATA WHICH MIGHT BE CONSIDERED AS PROTECTED HEALTH INFORMATION UNLESS YOU HAVE OBTAINED THE NECESSARY AUTHORIZATIONS AND CONSENTS TO ALLOW SUCH UPLOADING OR SUBMISSION. OBTAINING SUCH AUTHORIZATION AND CONSENT IS YOUR SOLE RESPONSIBILITY. BY UPLOADING OR SUBMITTING INFORMATION TO THE SERVICES, YOU REPRESENT AND WARRANT THAT YOU CAN UPLOAD OR SUBMIT SUCH INFORMATION IN FULL COMPLIANCE WITH ANY APPLICABLE PRIVACY LAWS AND REGULATIONS. YOU WILL RETAIN ALL DOCUMENTATION EVIDENCING ANY REQUIRED CONSENT FOR THE DURATION OF ANY APPLICABLE STATUTE OF LIMITATION PERIOD.
5 Purchasing Services
5.1 Purchasing Services from ViTel Net. When placing an order or making a purchase, you will be required to provide us with information, such as your address and billing information. You represent and warrant that all such information is accurate, and you will ensure that such information is kept current. ViTel Net will have no responsibility or liability for inaccurate information or information that later becomes outdated, and ViTel Net will have no obligation to make efforts to determine the correct contact or shipping information.
5.2 Order Acceptance. We will confirm our acceptance of your order by sending you a communication that confirms that the order has been processed or the goods have been shipped (“Order Acceptance”). The contract between us in relation to the applicable Services will be formed when we send you the Order Acceptance.
5.3 Shipping Dates. Any shipping dates or times provided by us (or a courier) are estimates only and are not guaranteed. The risk of loss in physical goods you purchase and the responsibility to insure the goods, as well as title to the goods, passes to you upon delivery of the goods to you.
5.4 Our Right to Reject Your Order. At any time prior to Order Acceptance, we reserve the right to decline or reject your order at our sole discretion.
5.5 Pricing and Payment. We may accept various forms of payment, including credit and debit cards. Additional terms with your payment provider may apply. By submitting an order, you acknowledge that you are authorized to use the designated payment method and you authorize us to charge your order to that payment method. When you provide your payment information, you authorize us (or a third-party payment processor) to process and store your payment and related information. Depending on where you are located or ask to have hardware shipped or delivered, ViTel Net may utilize an agent, subsidiary, or affiliate to process payment and shipping. In the event the payment method you designate cannot be verified, is invalid, or is not otherwise acceptable, we may suspend or cancel your order. You are responsible for resolving any problems we encounter in order to proceed with your order. Prices are subject to change without notice after the expiration date for the price quote set forth in your Quote. We reserve the right to refuse or cancel orders at any time and in our sole discretion.
5.6 Taxes. You are responsible for any type of use or sales tax, duty, value added or other governmental tax or fee due with respect to your use of the Services.
5.7 Shipping and Insurance. You will be responsible for all shipping and insurance charges incurred in the shipping of any goods required for the use of the Services as set forth in your Quote.
5.8 Subscription Fees. The Services may be sold to you on a subscription fee basis, subject to the payment of a fee set forth in your Quote (the “Subscription Fee”). Such payment will be made before the first date of the relevant service period.
5.9 Payments. Except for recurring payments, all amounts payable by you hereunder will be paid within 30 days of your receipt of an invoice from us.
5.10 Final Sale. All purchases of Services are final, except as required by law.
6 ViTel Net Content
6.1 The Services provide you with additional content and media, including, without limitation text, files, logos, button icons, images, data compilations, links, other specialized content, technical data, documentation, interactive features related graphics, illustrations, drawings, and animations (collectively, the “ViTel Net Content”).
6.2 All rights in and to the ViTel Net Content available in connection with the Services are reserved to ViTel Net or its licensors.
6.3 To the extent you provide any feedback, comments or suggestions to ViTel Net (“Feedback”), ViTel Net shall have an exclusive, royalty-free, fully paid up, worldwide, perpetual and irrevocable license to incorporate the Feedback into any ViTel Net current or future product, technology or service and use same for any purpose, all without further compensation to you and without your approval. You agree that all such Feedback shall be deemed non-confidential. Furthermore, you warrant that your Feedback is not subject to any license terms that would require ViTel Net to comply with any additional obligations with respect to any of ViTel Net’s current or future products, technologies or services that incorporate any Feedback.
7 User Content
7.1 Rights to Content. You represent and warrant that you have (and will continue to have) all the necessary licenses, rights, consents, and permissions with respect to the clinical images and any other information or content you transmit or make available via the Services (“User Content”).
7.2 License. You hereby grant ViTel Net a non-exclusive, royalty-free, fully paid up, worldwide, perpetual, sublicenseable, assignable and irrevocable license to use User Content that is not Personal Information. ViTel Net will only use such information on an anonymized basis for the purpose of improving the Services and data analytics. You have the right to export for your own records all User Content uploaded by you to the Services at any time.
7.3 Retention. You hereby agree that we may retain copies of certain information you transmit or make available via our Services, as necessary for us to comply with regulatory requirements, including without limitation, HIPAA requirements and HITECH guidelines, for archival or backup purposes and to enforce these Terms, including investigation of potential violations thereof. Accordingly, we will retain such information for a period of 3 years from the date they are uploaded to any platform we provide, or such other duration as mutually agreed to in writing between you and ViTel Net.
7.4 User Content Warranty. You are solely responsible for the User Content you make available through the Services and you represent and warrant that (a) you either are the sole and exclusive rights owner of all User Content that you provide, or you have obtained all rights, licenses, permissions, consents and releases that are necessary to grant to ViTel Net the rights specified in this section; and (b) the provision of your User Content, will not infringe, misappropriate or violate any third-party’s patent, copyright, trademark, trade secret, moral rights or other proprietary or intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable laws or regulations.
8 LIMITED WARRANTY
8.1 Warranty. ViTel Net warrants that any hardware we provide you as part of the Services (the “Hardware”) shall be free from defects in materials and workmanship under normal use for the period set forth in your Quote (collectively, the “Warranty Period”). If such a defect arises and a return authorization request is received by ViTel Net within the applicable Warranty Period, ViTel Net will, at its option and to the extent permitted by law, either (1) repair the Hardware at no charge, using new or refurbished replacement parts or (2) replace the Hardware with new or refurbished Hardware. The foregoing shall be your sole remedy with respect to any breach by ViTel Net of the foregoing warranty.
8.2 Warranty Limitations. The foregoing warranty does not apply to Hardware that has been serviced, altered, refurbished, or modified by anyone who is not authorized by ViTel Net, nor does it apply to any cosmetic damage such as scratches and dents. In addition, this Limited Warranty does not apply to damage or defects caused by (a) use with non-ViTel Net hardware; (b) accident, abuse, misuse, mishandling or other external causes; (c) normal wear and tear or aging of the Hardware such as discoloration or stretching; or (d) operating the Hardware (i) outside the permitted or intended uses described by ViTel Net, (ii) not in accordance with instructions provided by ViTel Net, or (iii) with improper voltage or power supply.
8.3 Professional Services Warranty. We may provide you with one or more professional services in connection with the planning, installation, configuration and/or use of the Services (the “Professional Services”). Such Services shall be governed by the terms of a Statement of Work (the “SOW”) to be agreed to between us. To the extent of a conflict between the terms of the SOW and the terms of this Agreement, the terms of the SOW shall govern. All Professional Services shall be performed in a professional and workmanlike manner and in accordance with relevant industry practices. If a Professional Service is not performed in accordance with foregoing warranty during the Warranty Period or the warranty period set forth in the SOW, we may elect to either (1) reperform the Professional Service(s) in question; or (2) refund the amount paid by you for such Professional Service(s). The foregoing shall be your sole remedy with respect to any breach by ViTel Net of the foregoing warranty. Any completion dates or times provided by us in an SOW are estimates only and are not guaranteed.
9.1 During the period set forth in the Quote, ViTel Net shall provide you with phone and/or email support for your use of the Services as more fully described in the ViTel Net Service Plans Handbook. Support shall not include repair of defective hardware, which shall be governed by the terms of Section 8.
11 Ownership and Intellectual Property
11.1 Intellectual Property Rights. Unless otherwise indicated, the Services are the property of ViTel Net or our licensors and are protected by the patent, copyright, trademark and other laws of the United States and foreign countries (the “Intellectual Property Rights”). Except as expressly set forth herein, these Terms grant you no rights in and to the Services and the Intellectual Property Rights. You will not remove, alter or obscure any patent, copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services.
11.2 Trademarks. The ViTel Net marks and logos and all other proprietary identifiers used by the ViTel Net in connection with the Services (the “ViTel Net Marks”) are trademarks or registered trademarks of ViTel Net. The ViTel Net Marks and those of its affiliates may not be copied, imitated or used, in whole or in part, without prior written permission, including as authorized by any applicable brand guidelines. All other trademarks, service marks, logos, trade names and any other proprietary designations are the trademarks or registered trademarks of their respective owners and may not be used without permission of the applicable trademark holder.
12 Export Compliance and U.S. Government Rights
You will comply with all applicable export control laws of the United States and the export laws of any other applicable nation, including without limitation, the U.S. Export Administration Regulations (“Export Laws”). You will not, directly or indirectly, export, re-export or download Services or any component thereof: (a) to any individual, entity or country prohibited by Export Laws, including by any U.S. sanctions program; (b) to anyone on the SDN List, the Denied Persons List or Entity List or other export control lists; or (c) for any purpose prohibited by Export Laws, including nuclear, chemical or biological weapons proliferation or development of missile technology. You further represent and warrant that no U.S. federal agency has suspended, revoked or denied your export privileges and you are not listed on the SDN List. You will also not use the Devices outside the country to which they are delivered. Any such use, will void the warranties set forth herein
The Services, including all related software, technical data and documentation, are “Commercial Items” as that term is defined in 48 C.F.R. §2.101. We provide the Services for U.S. Government end use solely in accordance with the following: (a) the Services are licensed only as Commercial Items; and (b) the U.S. Government will have the same rights as all other end users pursuant to these Terms. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for U.S. Department of Defense transactions, DFARS 252.227-7015 (Technical Data – Commercial Items) and DFARS 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a U.S. Government agency has a need for any additional rights, it must negotiate directly with ViTel Net to determine if the parties can negotiate an acceptable license amendment that must be included in any applicable contract or agreement.
13.1 You hereby acknowledge and agree that the Software and Content constitute and contain valuable proprietary products and trade secrets of ViTel Net, embodying substantial creative efforts and confidential information, ideas, and expressions. Accordingly, you agree to treat (and take precautions to ensure that your employees treat) the Software and ViTel Net Content as confidential in accordance with the confidentiality requirements and conditions set forth below.
13.2 ViTel Net hereby acknowledges and agrees that all of your information, including, but not limited to patient diagnoses or courses of treatment, physician or other professional activities procedures, or financial and operating statistics, is confidential. Accordingly, we agree to treat, and take precautions to ensure that our employees treat, all such information as confidential in accordance with the confidentiality requirements set forth below and as required by applicable law.
13.3 Maintenance of Confidential Information. Each party agrees to keep confidential all confidential information disclosed to it by the other party in accordance herewith, and to protect the confidentiality thereof in the same manner it protects the confidentiality of similar information and data of its own (at all times exercising at least a reasonable degree of care in the protection of confidential information); provided, however, that neither party shall have any such obligation with respect to such information as can be established to: (a) have been known publicly; (b) have been known generally in the industry before communication by the disclosing party to the recipient; (c) have become known publicly, without fault on the part of the recipient, subsequent to disclosure by the disclosing party; (d) have been known otherwise by the recipient before communication by the disclosing party; or (e) have been received by the recipient without any obligation of confidentiality from a source (other than the disclosing party) lawfully having possession of such information.
13.4 Injunctive Relief. If either party breaches any of its confidentiality obligations hereunder, the non-breaching party shall be entitled to seek equitable relief to protect its interests therein, including, but not limited to, preliminary and permanent injunctive relief.
14.1 THE SERVICES DO NOT AND CANNOT REPLACE YOUR PROFESSIONAL MEDICAL JUDGMENT. ANY DECISION MADE OR ACTION TAKEN BY YOU BASED ON THE SERVICES OR ITS OUTPUTS ARE AT YOUR SOLE RESPONSIBILITY AND LIABILITY.
14.2 YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOUR ACCESS TO AND USE OF THE SERVICES IS AT YOUR SOLE RISK. AS BETWEEN YOU AND VITEL NET, EXCEPT AS PROVIDED IN SECTION 8, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND VITEL NET EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN), INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IN ADDITION, VITEL NET DOES NOT REPRESENT OR WARRANT THAT (A) THE FUNCTIONS CONTAINED IN THE SERVICES WILL BE ACCURATE OR MEET YOUR REQUIREMENTS; OR (B) THE OPERATION OF THE SERVICES WILL BE SECURE, UNINTERRUPTED, ERROR-FREE OR VIRUS-FREE. NO ORAL OR WRITTEN INFORMATION, GUIDELINES OR ADVICE GIVEN BY VITEL NET WILL CREATE A WARRANTY. THE FOREGOING DISCLAIMER OF WARRANTIES WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. THE LAWS OF SOME STATES OR JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES, SO SOME OR ALL OF THE DISCLAIMERS IN THIS SECTION MAY NOT APPLY TO YOU.
You agree to defend, indemnify and hold harmless ViTel Net and our affiliates, independent contractors and service providers, and each of our respective directors, officers, employees and agents (collectively, “ViTel Net Parties”) from and against all third-party claims, damages, costs, liabilities and expenses (including, but not limited to, reasonable attorneys’ fees) caused by, arising out of or related to (a) your purchase or use of, or inability to use, the Services; (b) your violation of these Terms or any other applicable terms, policies, warnings or instructions provided by ViTel Net or a third-party in relation to the Services, (c) your violation of any applicable law or any rights of any third-party; or (d) any User Content or Feedback you provide.
16 Limitation of Liability
THE VITEL NET PARTIES SHALL HAVE NO LIABILITY FOR ANY LOST PROFITS OR OTHER CONSEQUENTIAL, SPECIAL, PUNITIVE, INDIRECT, OR INCIDENTAL DAMAGES, ARISING FROM OR RELATED TO YOUR USE OR INABILITY TO USE THE SERVICES, EVEN IF VITEL NET HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF THE VITEL NET PARTIES ARISING OUT OF OR RELATING TO THE USE OF OR INABILITY TO USE THE SERVICES EXCEED THE AMOUNT YOU PAID US TO USE OUR SERVICES DURING THE TWELVE (12) MONTHS BEFORE THE RELATED CLAIM WAS MADE. THE FOREGOING DISCLAIMER OF CERTAIN DAMAGES AND LIMITATION OF LIABILITY WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. THE LAWS OF SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, SO SOME OR ALL OF THE EXCLUSIONS AND LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TERMS, NOTHING IN THESE TERMS EXCLUDES OR LIMITS OUR LIABILITY FOR FRAUD OR FOR DEATH OR PERSONAL INJURY CAUSED BY OUR NEGLIGENCE.
17 Dispute Resolution
PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO SUBMIT TO BINDING ARBITRATION (JURY TRIAL WAIVER) OF ANY AND ALL DISPUTES (OTHER THAN SPECIFIED INTELLECTUAL PROPERTY CLAIMS) WITH VITEL NET AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM VITEL NET (NO CLASS ARBITRATIONS, CLASS ACTIONS OR REPRESENTATIVE ACTIONS OR ARBITRATIONS).
17.1 Binding Arbitration; Disputes; Small Claims. You and ViTel Net agree to waive any right to a jury trial, or the right to have any Dispute resolved in any court, and instead accept the use of binding arbitration (which is the referral of a Dispute (as such term is defined below) to one or more impartial persons for a final and binding determination). “Dispute” as used in this Section 17 means any dispute, cause of action, claim, or controversy arising out of or in any way related to ViTel Net, these Terms, the subject matter of these Terms, or access to and use of the Services, including but not limited to contract, personal injury, tort, warranty, statute or regulation, or other legal or equitable basis and disputes that involve third-parties (such as developers of Third-Party Content), except any dispute, cause of action, claim, or controversy relating to ViTel Net’s intellectual property (such as patents, trademarks, trade dress, domain names, trade secrets, copyrights, and/or patents). You and ViTel Net empower the arbitrator with the exclusive authority to resolve any dispute relating to the interpretation, applicability or enforceability of these Terms or formation of this contract, including the arbitrability of any dispute and any claim that all or any part of these terms are void or voidable.
17.2 No Class Arbitrations, Class Actions or Representative Actions. You and ViTel Net agree that any Dispute is personal to you and ViTel Net, and that any Dispute shall only be resolved by an individual arbitration and shall not be brought as a class arbitration, a class action, or any other representative proceeding. Neither party agrees to class arbitration, or an arbitration where a person brings a Dispute as a representative of any other person or persons. Neither you nor ViTel Net agrees that a Dispute can be brought as a class or representative action whether inside or outside of arbitration, or on behalf of any other person or persons.
17.3 Federal Arbitration Act. You and ViTel Net agree that these Terms affect interstate commerce and that the enforceability of Section 17 shall be governed by, construed, and enforced, both substantively and procedurally, by the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (“FAA”) to the maximum extent permitted by applicable law.
17.4 Confidentiality. The arbitrator, ViTel Net, and you shall maintain the confidentiality of any proceedings, including but not limited to, any and all information gathered, prepared, and presented for purposes of the arbitration or related to the Dispute(s) therein. The arbitrator shall have the authority to make appropriate rulings to safeguard that confidentiality, unless the law provides to the contrary.
17.5 Process. Our goal is to resolve claims fairly and quickly. Accordingly, for any Dispute that you have against ViTel Net, you agree to first contact ViTel Net and attempt to resolve the claim informally by sending a written notice of your claim (“Notice”) to ViTel Net. The Notice to ViTel Net must be sent by certified mail addressed to: Chief Operating Officer, ViTel Net, 8201 Greensboro Dr., Suite 820 McLean, VA 22102. The Notice must (a) include your name, residence address, and the email address and/or mobile telephone number associated with your account; (b) describe the nature and basis of the claim; and (c) set forth the specific relief sought. If you and ViTel Net cannot reach an agreement to resolve the claim within 30 days after such Notice is received, then either party may, as appropriate in accordance with this Section 17, commence an arbitration proceeding or file a claim in court. You and ViTel Net agree that any Dispute must be commenced or filed within one year after such claim arose; otherwise, the Dispute is permanently barred.
17.6 AAA Arbitration. In the event that you and ViTel Net cannot resolve a Dispute, you or ViTel Net shall promptly submit the Dispute to binding arbitration at the office of the American Arbitration Association (“AAA”). In the event AAA declines or is unable to administer the arbitration, you and ViTel Net agree to use an arbitration forum or arbitrator that you and ViTel Net mutually agree upon. If, after making a reasonable effort, you and ViTel Net are not able to agree upon an arbitration forum or arbitrator, AAA or a court having proper jurisdiction will appoint an arbitration forum or arbitrator. The arbitration will be conducted in accordance with the applicable AAA Arbitration Rules (“AAA Rules”) then in effect. The AAA Rules and other information about AAA and arbitration are readily available at http://www.adr.org, by calling 1-800-778-7879, or by mail at 120 Broadway, Floor 21, New York, NY 10271. By entering into these Terms, you either (1) acknowledge that you have read and understand the AAA Rules or (2) waive reading the AAA Rules and waive any claim that the AAA Rules are unfair in any way. You and ViTel Net agree that these Terms govern the arbitration, and that the applicable AAA Rules shall be subject to changes in procedures that AAA may make from time to time.
17.7 Individual Arbitration. As limited by the FAA, these Terms, and the applicable AAA Rules, the arbitrator will have the exclusive power and jurisdiction to make all procedural and substantive decisions concerning the Dispute; provided, however, that this power does not include the power to conduct a class arbitration or a representative action, which is prohibited by these Terms (as stated above). The arbitrator may only conduct an individual arbitration and may not consolidate more than one person’s claims and may not preside over any form of representative or class proceeding, or any proceeding on behalf of or involving more than one person or persons.
18.1 Term. These Terms shall remain in effect until the earlier of the end of any relevant Subscription Period or as terminated as set forth herein. Your failure to comply with the Terms or failure to make any payment in a timely manner shall terminate the licenses granted herein and these Terms. In connection with such a termination, we may immediately (temporarily or permanently) limit, suspend or otherwise terminate, your Account, your password and your access to the Services without notice. Without limiting the generality of the foregoing, we may terminate or suspend your Account if we believe in our sole discretion that any of the following events occurred: (a) there is a threat to the security or integrity of your Account, our network or our servers; (b) suspension or termination is needed to protect the rights (including without limitation, privacy rights), property or safety of ViTel Net, its customers, patients or the public; (c) we have reasonable grounds to suspect that you do not meet the eligibility requirements specified in Section 1.1 above; (d) you have violated any of these Terms; and/or (e) we are required to do so by applicable law.
18.2 Rejecting Terms. If these Terms are materially modified during the Subscription Period, you may terminate these Terms by closing your Account within five (5) business days of such modifications, uninstalling our App and stopping your use of our Services and this will be your sole remedy in such circumstances. Refunds will be issued with respect to any unutilized Subscription Period.
18.3 Effect of Termination. Upon termination of these Terms: (i) the license and all other rights granted to you hereunder will automatically terminate; (ii) you must immediately cease all use of the Services, delete and destroy all copies of any Software and Content in your possession or control (and to certify such action to ViTel Net, if required by it), and (ii) the provisions of these Terms that, by their nature and content must survive the termination of these Terms in order to achieve the fundamental purposes of these Terms shall so survive. Without limiting the generality of the forgoing, Sections 6, 7, 10, 11, 13,15, 16, 17, 18, 19, 20, 21, 22 and 23 will survive the termination of these Terms.
18.4 Notice. We may, but are not obligated to, provide you a notice in the event of termination or suspension of your Account. During the suspension period, you will not have the ability to use or access your Account. In the event that we determine, in our sole discretion, that the reason for suspension of access to your Account has been resolved, we will restore access to your Account.
19 Governing Law: Jurisdiction and Venue
The laws of the Commonwealth of Virginia shall govern the validity, interpretation, construction and performance of this Agreement. To the extent the provisions in Section 17 do not apply, any dispute arising out of this Agreement shall be resolved only in the state courts having jurisdiction in Virginia. If any provision of this Agreement is held to be illegal or unenforceable for any reason, then such provisions shall be deemed to be restated so as to be enforceable to the maximum extent possible under law; the remainder of this Agreement shall remain in full force and effect.
20 Modifications to the Services; Amendments
ViTel Net reserves the right to change, suspend, remove, discontinue or disable access to the Services or particular portions thereof, at any time and without notice. In no event will ViTel Net be liable for the removal of or disabling of access to any portion or feature of the Services. No amendment hereof will be binding unless in writing and signed by ViTel Net.
Any heading, caption or section title contained herein is inserted only as a matter of convenience, and in no way defines or explains any section or provision hereof.
If any provision of these Terms shall be deemed unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions.
You may not assign these Terms or any of the rights granted hereunder without the prior written consent of ViTel Net, and any attempted assignment without such consent shall be void. Subject to the foregoing restriction, these Terms will be fully binding upon, inure to the benefit of, and be enforceable by us and our respective successors and assigns.
Any failure by ViTel Net to insist upon or enforce performance by you of any of the provisions of these Terms or to exercise any rights or remedies under these Terms or otherwise by law will not be construed as a waiver or relinquishment of any right to assert or rely upon the provision, right or remedy in that or any other instance; rather, the provision, right or remedy will be and remain in full force and effect.
25 No Joint Venture
These Terms do not, and shall not be construed to create any relationship, partnership, joint venture, employer-employee, agency, or franchisor-franchisee relationship between the parties hereto.
26 Force Majeure
ViTel Net will not liable for any delay or failure to provide the Services resulting from circumstances or causes beyond the reasonable control or anticipation of ViTel Net.
27 Contact Us
If you have any questions or concerns regarding these Terms or our Services, please contact us at Chief Operating Officer, ViTel Net, 8201 Greensboro Dr., Suite 820 McLean, VA 22102, firstname.lastname@example.org or call (703) 762-9992.