Virta Terms of Service
Welcome, and thank you for your interest in Virta Health Corp. (“Virta”, “we”, or “us”) and our Web site at http://www.virtahealth.com/ (the “Site”), our related web sites, networks, embeddable widgets, downloadable software, mobile applications (including tablet applications), and other services, information, materials, devices and products we provide to you, including without limitation access to the BodyTrace E Scale (together with the Site, our “Service”). These Terms of Service (these “Terms”) are a legally binding contract between you and Virta regarding your use of the Service.
OUR SERVICE IS NOT INTENDED FOR EMERGENCY SITUATIONS. IN THE EVENT OF A MEDICAL EMERGENCY, PLEASE CALL 911 OR APPROPRIATE EMERGENCY RESPONDERS.
PLEASE READ THESE TERMS CAREFULLY. BY CLICKING “I ACCEPT,” YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THESE TERMS, AS MODIFIED OR AMENDED BY VIRTA FROM TIME TO TIME. If you are not eligible to use the Service as described herein, or do not agree to these Terms, then you do not have our permission to use the Service.
These Terms provide that all disputes between you and Virta will be resolved by BINDING ARBITRATION. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract, except for matters that may be taken to small claims court. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury, and your claims cannot be brought as a class action. Please review the “Dispute Resolution and Arbitration” section below for the details regarding your agreement to arbitrate any disputes with Virta.
- Virta Service Overview. Our Service is designed to enable you to participate in Virta’s program and to obtain certain telehealth consultations and treatment in connection with such program by facilitating the connection between you and one or more licensed health care providers (each, a “Provider”). We act as a technology platform to connect you with Providers who may be available to provide you with certain non-emergency medical care, however Virta is not itself a healthcare provider, and the Providers are solely responsible for providing you with any medical care and treatment you receive via the Service. We do not control or interfere with the practice of medicine by Providers, each of whom is responsible for the professional medical services he or she provides. By accepting these Terms, you acknowledge and agree that Virta is not a health care provider and that by using the Service, you are entering into a doctor-patient or other health care provider-patient relationship solely with one or more Provider(s) and not with Virta.
- Accounts and Registration.Subject to your eligibility to use the Service and compliance with these Terms, you may access the Service. Some features of the Service may be available without registration. To access most features of the Service, you must register for an account. When you register for an account, you may be required to provide us with some information about yourself, such as your driver’s license or other identification, e-mail address or other contact information. You agree that the information you provide to us is accurate, current, and complete, and that you will keep it accurate and up-to-date at all times. When you register, you will be asked to provide a password. You are solely responsible for maintaining the confidentiality of your account and password. You agree to accept responsibility for all activities that occur under your account. If you have reason to believe that your account is no longer secure, then you must immediately notify us at email@example.com. Furthermore, Virta reserves the right to take any and all action, as it deems necessary, regarding the security of our Service and your account and password information. Under no circumstances shall any of Virta or its officers, directors, employees, consultants, subsidiaries, agents, and affiliated individuals or entities, including the Providers and/or any professional corporation that employs or contracts with any Providers (collectively, the "Virta Entities") be held liable to you for any liabilities or damages resulting from your failure to comply with these Terms, including any failure by you to keep your account and password or other information secure.
- Eligibility.Our Service is intended for access and use only by users located in the United States, and you are not permitted to use the Service outside of the United States. You must be at least eighteen (18) years of age to use the
Service. In some cases, the Service may not be the most appropriate way for you to seek medical care and treatment. To assist you in determining whether the Service is a fit for your needs, we ask a series of initial questions during registration.
Based on your responses to these questions, we may determine that you are not eligible to utilize the Service. In such a case, you will be notified that you that you will be unable to use the Service and providing additional information regarding
next steps. If this occurs, your registration will remain on file with the Service, but you will not be able to further utilize the Service. You can always return to the Service at a later time to determine whether your eligibility has changed.
In addition, even if you are determined to be eligible to utilize the Service, a Provider may, during the course of your use of the Service, determine that your medical condition and/or treatment require an in-person examination or procedure or are otherwise not appropriately addressed through use of the Service. In such a case, you may receive an alert from Virta on behalf of a Provider notifying that you should seek medical care or treatment outside of the Service and/or will be unable to continue using the Service and providing additional information regarding next steps.
By accepting these Terms, you represent and warrant to us that: (a) you are at least eighteen (18) years of age; (b) you have not previously been suspended or removed from the Service; (c) your registration and your use of the Service is in compliance with all applicable laws and regulations’; (d) you are physically located in the United States and within a jurisdiction in which we offer our Service when utilizing the Service to receive telehealth consultations from the providers; (e) you comply with all provisions of this policy regarding medical supplies providing by the Virta Entities; and (f) all information you provide or submit through the Service will be truthful, accurate and complete. If you are using the Service on behalf of an entity, organization, or company, you represent and warrant that you have the authority to bind that organization to these Terms and you agree to be bound by these Terms on behalf of that organization.
- Consent to Use of Telehealth Services.
Any medical care and treatment you receive from Providers using the Service will be provided via telehealth. Telehealth involves the delivery of health care services using electronic communications, information technology or other means between a health care provider and a patient who are not in the same physical location. While the provision of health care services using telehealth may offer certain potential benefits, there are also potential risks associated with the use of telehealth. In order to utilize all features of the Service, you will be required to review and agree to the Consent to Use of Telehealth Services. The Consent to Use of Telehealth Services is hereby incorporated into these Terms by reference and constitutes a part of these Terms.
The services you receive from Providers are not intended to replace a primary care physician relationship or be your permanent medical home. You may form an ongoing treatment relationship with some Providers. However, your initial visit with a Provider will begin as a consultation and will not necessarily give rise to an ongoing treatment relationship. You should seek emergency help or follow-up care when recommended by a Provider or when otherwise needed, and continue to consult with your primary care physician and other healthcare professionals as recommended. We may make arrangements for follow up care either through Virta affiliated Providers or other healthcare providers. Among the benefits of our Services are improved access to healthcare professionals and convenience. However, as with any health service, there are potential risks associated with the use of telehealth. These risks include, but may not be limited to:
- In rare cases, information transmitted may not be sufficient (e.g. poor resolution of images) to allow for appropriate health care decision making by the Provider;
- Delays in evaluation or treatment could occur due to failures of the electronic equipment. If this happens, you may be contacted by phone or other means of communication.
- In rare cases, a lack of access to all of your health records may result in adverse drug interactions, hypoglycemic events, allergic reactions or other judgment errors;
- Although the electronic systems we use will incorporate network and software security protocols to protect the privacy and security of health information, in rare instances, security protocols could fail, causing a breach of privacy of personal health information.
By accepting these Terms, you acknowledge that you understand and agree with the following:
- You understand that you may expect the anticipated benefits from the use of the Virta Program in your care, but that no results can be guaranteed or assured.
- You understand that the laws that protect the privacy and security of health information apply to telehealth, and have received Virta’s Notice of Privacy Practices, which describes these protections in more detail.
- Your Provider may determine that the Services are not appropriate for some or all of your treatment needs, and accordingly may elect not to provide telehealth services to you through the Site.
- Fees, Charges, and Payment.You agree to pay the fees specified by the Service. Fees are subject to change, and any changes will be posted. It is your responsibility to remain informed about the current rates. Virta, on behalf of the Providers, will charge you for medical services provided by the Providers, including any sales tax (if applicable), and you agree to pay for all medical services provided to you at the specified rates. When you pay by credit card, you hereby authorize Virta or a third party appointed by Virta to bill and charge the credit card indicated in your registration for any fees and other amounts that may become due and payable. If your health plan or employer has arranged with Virta to pay the fees or charges or any portion of the fees or charges, that fee adjustment will be reflected in the fees or charges that you are ultimately charged. Please check with your health plan or employer to determine the level of coverage your health plan or employer will provide, if any, and if additional fees apply to you. If you do not have insurance coverage for the Service, or if payment or coverage is denied by your health plan or employer, you acknowledge and agree that you will be personally responsible for all fees or charges mutually agreed upon between you and Virta. Virta offers no guarantee that your health plan or employer will be responsible for such fees or charges.
- Access and Connectivity. You are responsible for providing and maintaining, at your own risk, option and expense, appropriate software and hardware capabilities (consistent with any technical, quality or other requirements described in the Service) to enable use of the Service. Virta reserves the right to change the access configuration, including any software, hardware or other requirements of the Service at any time without prior notice.
- Medical Equipment. The Virta Entities may provide users certain diabetic test supplies, including blood sugar and blood ketone strips. The timing and amounts of all such supplies shall be at the Virta Entities sole discretion. Refusal by the Virta Entities to provide additional diabetic test supplies shall not relieve users of their obligation to pay the fees specified by the Service. By accepting these Terms, you agree that all items provided to you by the Virta Entities are for your personal use only and not for resale. If you dispense products to others, including for resale, you acknowledge and agree that you shall be breaching these Terms and that Virta is likely to suffer irreparable harm as a result of its contracts with suppliers under which Virta is obligated to make reasonable efforts to prevent resale. Further, by accepting these terms, you acknowledge that any diabetic test supplies provided are not being provided pursuant to schemes eligible for reimbursement and you hereby agree not to seek reimbursement for any supplies provided to you by the Virta Entities from any patient or third party payer, including Medicaid, Medicare, commercial payers, any state or federal health care programs.
- User Content Generally. Certain features of the Service may permit users to upload content to the Service, including messages, reviews, photos, video, images, folders, data, text, and other types of works (“User Content”) and to publish User Content on the Service.
- Limited License Grant to Virta. By posting or publishing User Content, you grant Virta a worldwide, non-exclusive, royalty-free right and license (with the right to sublicense) to host, store, transfer, display, perform, reproduce, modify for the purpose of formatting for display, and distribute your User Content, in whole or in part, in any media formats and through any media channels (now known or hereafter developed). Virta’s use of your User Content will be without any compensation paid to you.
- Limited License Grant to Other Users. By posting and sharing User Content with another user of the Service, you grant that user a non-exclusive license to access and use that User Content as permitted by these Terms and the functionality of the Service.
- User Content Representations and Warranties. You are solely responsible for your User Content and the consequences of posting or publishing User Content. By posting or publishing User Content, you affirm, represent, and warrant
- you are the creator and owner of, or have the necessary licenses, rights, consents, and permissions, to use and to authorize Virta and users of the Service to use and distribute your User Content as necessary to exercise the licenses granted by you in this Section 5 and in the manner contemplated by Virta, the Service, and these Terms; and
- your User Content, and the use of your User Content as contemplated by these Terms, does not and will not: (i) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (iii) cause Virta to violate any law or regulation.
- User Content Disclaimer. We are under no obligation to edit or control User Content that you or other users post or publish, and will not be in any way responsible or liable for User Content. Virta may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment violates these Terms or is otherwise objectionable. You understand that when using the Service you will be exposed to User Content from a variety of sources and acknowledge that User Content may be inaccurate, offensive, indecent, or objectionable. You agree to waive, and do waive, any legal or equitable right or remedy you have or may have against Virta with respect to User Content. We expressly disclaim any and all liability in connection with User Content. If notified by a user or content owner that User Content allegedly does not conform to these Terms, we may investigate the allegation and determine in our sole discretion whether to remove the User Content, which we reserve the right to do at any time and without notice. For clarity, Virta does not permit copyright-infringing activities on the Service.
- Digital Millennium Copyright Act
- DMCA Notification. We comply with the provisions of the Digital Millennium Copyright Act applicable to Internet service providers (17 U.S.C. §512, as amended). If you have an intellectual property rights-related complaint about
material posted on the Service, you may contact our Designated Agent at the following address:
Virta Health Corp.
535 Mission Street 20th Floor, San Francisco, CA 94105
Any notice alleging that materials hosted by or distributed through the Service infringe intellectual property rights must include the following information:
- an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;
- a description of the copyright-protected work or other intellectual property right that you claim has been infringed;
- a description of the material that you claim is infringing and where it is located on the Service;
- your address, telephone number, and email address;
- a statement by you that you have a good faith belief that the use of those materials on the Service is not authorized by the copyright owner, its agent, or the law; and
- a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf.
- Repeat Infringers. Virta will promptly terminate without notice the accounts of users that are determined by Virta to be “repeat infringers." A repeat infringer is a user who has been notified of infringing activity or has had User Content removed from the Service at least twice.
- DMCA Notification. We comply with the provisions of the Digital Millennium Copyright Act applicable to Internet service providers (17 U.S.C. §512, as amended). If you have an intellectual property rights-related complaint about material posted on the Service, you may contact our Designated Agent at the following address:
- Prohibited Conduct. BY USING THE SERVICE YOU AGREE NOT TO:
- use the Service to compete with Virta’s business;
- use the Service for any illegal purpose or in violation of any local, state, national, or international law;
- violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third party intellectual property right;
- post, upload, or distribute any User Content or other content that is unlawful, defamatory, libelous, inaccurate, or that a reasonable person could deem to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate;
- interfere with security-related features of the Service, including by: (a) disabling or circumventing features that prevent or limit use or copying of any content; or (b) reverse engineering or otherwise attempting to discover the source code of any portion of the Service except to the extent that the activity is expressly permitted by applicable law;
- interfere with the operation of the Service or any user’s enjoyment of the Service, including by: (a) uploading or otherwise any disseminating virus, adware, spyware, worm, or other malicious code; (b) making any unsolicited offer or advertisement to another user of the Service; (c) attempting to collect personal information about another user or third party without consent; (d) interfering with or disrupting any network, equipment, or server connected to or used to provide the Service; (e) violating any regulation, policy, or procedure of any network, equipment, or server; or (f) manipulating or otherwise displaying the Service by using framing, mirroring or similar navigational technology;
- perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation, accessing any other Service account without permission, or falsifying your age or date of birth or any other information provided or submitted to the Service;
- sell or otherwise transfer the access granted under these Terms or any Materials (as defined in Section 16) or any right or ability to view, access, or use any Material; or
- attempt to do any of the acts described in this Section 11, or assist or permit any person in engaging in any of the acts described in this Section 11.
- Termination of Use; Discontinuation and Modification of the Service. If you violate any provision of these Terms, your permission from us to use the Service will terminate automatically. In addition, Virta may in its sole discretion terminate your user account on the Service or suspend or terminate your access to the Service at any time, with or without notice. We also reserve the right to modify or discontinue the Service at any time (including by limiting or discontinuing certain features of the Service) without notice to you. We will have no liability whatsoever on account of any change to the Service or any suspension or termination of your access to or use of the Service. You may terminate your account at any time by contacting customer service at firstname.lastname@example.org. If you terminate your account, you remain obligated to pay all outstanding fees, if any, relating to your use of the Service incurred prior to termination.
- Additional Terms. Your use of the Service is subject to all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to from the Service (the "Additional Terms"), such as end-user license agreements for any downloadable software applications, or rules that are applicable to a particular feature or content on the Service, subject to Section 15 below. All Additional Terms are incorporated by this reference into, and made a part of, these Terms.
- Modification of these Terms. We reserve the right, at our discretion, to change these Terms on a going-forward basis at any time. Please check these Terms periodically for changes. If a change to these Terms materially modifies your rights or obligations, you will be required to accept the modified Terms in order to continue to use the Service. Immaterial modifications are effective upon publication. Disputes arising under these Terms will be resolved in accordance with the version of these Terms that was in effect at the time the dispute arose.
- Ownership; Proprietary Rights. The Service is owned and operated by Virta. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services,
and all other elements of the Service (“Materials”) provided by Virta are protected by intellectual property and other laws. All Materials contained in the Service are the property of Virta or our third-party licensors. Except as
expressly authorized by Virta, you may not make use of the Materials. Virta reserves all rights to the Materials not granted expressly in these Terms.
- Certain of the names, logos, and other materials displayed on the Site or in the Services may constitute trademarks, trade names, service marks or logos (“Marks“) of Virta or other entities. You are not authorized to use any such Marks without the express written permission of Virta. Ownership of all such Marks and the goodwill associated therewith remains with us or those other entities.
- Indemnity. You agree that you will be responsible for your use of the Service, and you agree to defend and indemnify the Virta Entities from and against every claim, liability, damage, loss, and expense, including reasonable attorneys' fees and costs, arising out of or in any way connected with: (a) your access to, use of, or alleged use of, the Service; (b) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, including but not limited to a violation of Section 8 hereof, or any applicable law or regulation; (c) your violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (d) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of that claim.
- Disclaimers; No Warranties
WHILE THE SERVICE PROVIDES ACCESS TO CERTAIN PROVIDERS FOR NON-EMERGENCY MEDICAL CARE, VIRTA IS NOT A HEALTH CARE PROVIDER AND CANNOT AND DOES NOT DIAGNOSE OR TREAT YOUR HEALTH CONDITIONS. VIRTA PROVIDES NO ENDORSEMENT, REPRESENTATION OR WARRANTY THAT ANY PARTICULAR MEDICATION OR TREATMENT USED BY THE PROVIDERS IS OR WILL BE SAFE, EFFECTIVE OR APPROPRIATE FOR YOU. DO NOT USE THE SERVICES FOR MEDICAL EMERGENCIES. IF YOU THINK YOU MAY HAVE A MEDICAL EMERGENCY, CALL 911 (OR THE EQUIVALENT CONTACT NUMBER FOR EMERGENCY SERVICES IN YOUR REGION) IMMEDIATELY.
THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED "AS IS" AND ON AN "AS AVAILABLE" BASIS, WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED. TO THE EXTENT ALLOWED BY LAW, THE VIRTA ENTITIES DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. THE VIRTA ENTITIES DO NOT WARRANT THAT THE SERVICE OR ANY PORTION OF THE SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND DO NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF THE VIRTA ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. YOU ASSUME ALL RISK FOR ANY DAMAGE THAT MAY RESULT FROM YOUR ACCESS TO, USE OR MISUSE OF, OR INABILITY TO USE THE SERVICE, YOUR DEALING WITH ANY OTHER SERVICE USER, AND ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE. YOU UNDERSTAND AND AGREE THAT YOU USE THE SERVICE, AND USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN MATERIALS OR CONTENT THROUGH THE SERVICE AND ANY ASSOCIATED SITES OR SERVICES, AT YOUR OWN DISCRETION AND RISK, AND THAT YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE), OR THE LOSS OF DATA THAT RESULTS FROM THE USE OF THE SERVICE OR THE DOWNLOAD OR USE OF THAT MATERIAL OR CONTENT.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF THE VIRTA ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. YOU ASSUME ALL RISK FOR ANY DAMAGE THAT MAY RESULT FROM YOUR USE OF OR ACCESS TO THE SERVICE, YOUR DEALING WITH ANY OTHER SERVICE USER, AND ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE. YOU UNDERSTAND AND AGREE THAT YOU USE THE SERVICE, AND USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN MATERIALS OR CONTENT THROUGH THE SERVICE AND ANY ASSOCIATED SITES OR SERVICES, AT YOUR OWN DISCRETION AND RISK, AND THAT YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE), OR THE LOSS OF DATA THAT RESULTS FROM THE USE OF THE SERVICE OR THE DOWNLOAD OR USE OF THAT MATERIAL OR CONTENT.
SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION. TO THE EXTENT THAT WE MAY NOT DISCLAIM ANY IMPLIED WARRANTY, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED BY LAW.
- Limitation of Liability
IN NO EVENT WILL THE VIRTA ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY VIRTA ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
YOU AGREE THAT THE AGGREGATE LIABILITY OF THE VIRTA ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICE OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (A) THE AMOUNT YOU HAVE PAID TO VIRTA FOR ACCESS TO AND USE OF THE SERVICE IN THE 12 MONTHS PRIOR TO THE CLAIM; OR (B) $1,000.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. TO THE EXTENT THAT WE MAY NOT LIMIT OUR LIABILITIES, THE EXTENT OF SUCH LIABILITIES WILL BE THE MINIMUM PERMITTED BY LAW.
EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 20 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
- Disagreements between Users.
You alone are responsible for your communications, interactions, agreements, representations, promises or any other involvement with other users of the Service (“Users”). Virta reserves the right, but has no obligation, to monitor disagreements between you and other Users. If you have a dispute with one or more Users, you irrevocably and forever release the Virta Entities from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes.
IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”
- Governing Law. These Terms are governed by the laws of the State of California without regard to conflict of law principles. If a lawsuit or court proceeding is permitted under these Terms, you and Virta agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within San Francisco, California for the purpose of litigating any dispute. We operate the Service from our offices in California, and we make no representation that Materials included in the Service are appropriate or available for use in other locations.
- General. These Terms, the Consent to Use of Telehealth and any other agreements expressly incorporated by reference into these Terms, are the entire and exclusive understanding and agreement between you and Virta regarding your use of the Service. You may not assign or transfer these Terms or your rights under these Terms, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign these Terms at any time without notice or consent. The failure to require performance of any provision will not affect our right to require performance at any other time after that, nor will a waiver by us of any breach or default of these Terms, or any provision of these Terms, be a waiver of any subsequent breach or default or a waiver of the provision itself. Use of section headers in these Terms is for convenience only and will not have any impact on the interpretation of any provision. If any part of these Terms is held to be invalid or unenforceable, the unenforceable part will be given effect to the greatest extent possible, and the remaining parts will remain in full force and effect. Upon termination of these Terms, any provision that by its nature or express terms should survive, will survive, including Sections 3 through 6, and 10 through 25.
- Dispute Resolution and Arbitration
- Generally. In the interest of resolving disputes between you and any Virta Entity in the most expedient and cost effective manner, you and each Virta Entity agree that every dispute arising in connection with these Terms will be resolved by binding arbitration. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Our agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND EACH VIRTA ENTITY ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
- Exceptions. Despite the provisions of Section 24.1, we both agree that nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either of us to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law; or (d) to file suit in a court of law to address an intellectual property infringement claim.
- Arbitrator. Any arbitration between you and any Virta Entity will be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, "AAA Rules") of the American Arbitration Association ("AAA"), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Virta.
- Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail or Federal Express (signature required), or if we do not have a physical address on file for you, by electronic mail ("Notice"). The address for Notice to any Virta Entity is: Virta Health Corp. 535 Mission Street 14th Floor, San Francisco, CA 94105. The Notice must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought ("Demand"). We agree to use good faith efforts to resolve the claim directly, but if we do not reach an agreement to do so within 30 days after the Notice is received, you or any Virta Entity may commence an arbitration proceeding. The parties shall have the ability to take discovery on and exchange relevant information, on a confidential basis, about the dispute. During the arbitration, the amount of any settlement offer made by you or any Virta Entity must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If our dispute is finally resolved through arbitration in your favor, the applicable Virta Entity will pay you the highest of the following: (i) the amount awarded by the arbitrator, if any; (ii) the last written settlement amount offered by the applicable Virta Entity in settlement of the dispute prior to the arbitrator’s award; or (iii) $1,000. Except as required to comply with law or other requirements, the arbitration proceedings, filings and outcome shall be confidential.
- Fees. If you commence arbitration in accordance with these Terms, Virta will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in San Francisco, California, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse Virta for all monies previously disbursed by any Virta Entity that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
- No Class Actions. YOU AND EACH VIRTA ENTITY AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and each applicable Virta Entity agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
- Modifications. If Virta makes any future change to this arbitration provision (other than a change to Virta's address for Notice), you may reject the change by sending us written notice within 30 days of the change to Virta's address for Notice, in which case your account with Virta will be immediately terminated and this arbitration provision, as in effect immediately prior to the amendments you reject will survive.
- Enforceability. If Section 24.6 is found to be unenforceable or if the entirety of this Section 24 is found to be unenforceable, then the entirety of this Section 24 will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 22 will govern any action arising out of or related to these Terms.
- Contact Information. The Service is offered by Virta Health Corp., located at 535 Mission Street 14th Floor, San Francisco, CA 94015. You may contact us by sending correspondence to that address or by emailing us at email@example.com.
- Notice to California Residents. If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Service or to receive further information regarding use of the Service.