Last Updated: March 15, 2017
Please read this Terms of Use Agreement (these "Terms" or this “Agreement”) carefully before using the www.instavital.com website (the "Site") and any mobile application, service, or functionality belonging to, provided by, created by, or operated by Instavital, Inc. ("Instavital", "Company", "us", "our", and "we")(collectively, the "Service").
Your access to and use of the Service is conditioned upon your acceptance of and compliance with these Terms. These Terms apply to all visitors, users, and others who wish to access or use the Service (each a “User” and collectively, “Users”).
By accessing or using the Service you agree to be bound by these Terms. If you disagree with any part of these Terms then you do not have permission to access the Service.
Certain features, functionalities, tools, and solutions of the Service may be subject to additional guidelines, terms, or rules, which may be posted on the Service from time to time. All such additional terms, guidelines, and rules are incorporated by reference into these Terms.
THESE TERMS SET FORTH THE LEGALLY BINDING TERMS AND CONDITIONS THAT GOVERN YOUR USE OF THE SERVICE. BY ACCESSING OR USING THE SERVICE, YOU ARE ACCEPTING THESE TERMS (ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT), AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THESE TERMS (ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT). YOU MAY NOT ACCESS OR USE THE SERVICE OR ACCEPT THE TERMS IF YOU ARE NOT AT LEAST 18 YEARS OLD. IF YOU DO NOT AGREE WITH ALL OF THE PROVISIONS OF THESE TERMS, DO NOT ACCESS AND/OR USE THE SERVICE.
THESE TERMS REQUIRE THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMIT THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
1. ABOUT INSTAVITAL
1.1Instavital provides, among other things, an online platform that enables people who use the Service (“Client Users”) to find, connect, and communicate with wellness and fitness professionals who use the Service (“Wellness Consultant Users”). The Service provides access to a virtual community of Client Users, Wellness Consultant Users; communication management tools; booking and reservation management tools; and secure payment and invoicing tools.
1.2Instavital is not intended to be a substitute for advice, diagnosis, or treatment from a medical, chiropractic, psychotherapeutic, optometric, dental, or pharmacological professional. Instavital is only intended to facilitate the licensed professional health care services listed in 1.2(a) (“Intended Health Services”). Users should always seek the advice of a physician, licensed therapist, or other qualified health provider with any questions regarding any mental, emotional, or medical symptoms or conditions. Instavital advises you to never disregard professional psychological, personal wellness and/or fitness, or medical advice or delay in seeking evaluation or treatment because of something you have read or seen on Instavital.
(a)Intended Health Services: massage therapists, acupuncturists, acupressurists, physical therapists, nutritionists, and dietitians.
1.3Instavital does not recommend or endorse any specific test; products; procedures; medical treatments; personal wellness treatments, services, or methods; fitness programs or products; therapy services, methodologies, or practices; wellness or fitness professionals; opinions; or any other information that may be mentioned, written, or featured on Instavital or linked to from Instavital. Your reliance on any information provided by Instavital; its employees; Wellness Consultant Users; or any third-party site, application, service provider, or other party that may be linked to or accessed through the Service; and any others parties featured or appearing on the Service is solely at your own risk.
1.4Instavital cannot and does not provide any warranties related to the information contained in or resulting services from any of the personal wellness and/or fitness care providers or any facilities that may be listed on or through the Instavital Service. Any and all information accessed through the Instavital Service is provided "AS IS" and without any warranty, either expressed or implied, including, but without limitation any implied warranty of merchantability or fitness.
1.5Instavital does not examine, determine, or warrant the competence of any personal wellness and/or fitness care provider, or any other type of service provider that may be listed on or through the Instavital Service. Instavital does not warrant that the personal wellness and/or fitness care providers, or any other type of service providers or facilities on the Instavital Service are currently or properly licensed. Under no circumstances should the Instavital Service be used to verify the credentials of personal wellness and/or fitness care providers, or any other type of service providers or facilities. Users should contact their respective State Professional Licensing Boards to verify the qualifications and licensure of any individual personal wellness and/or fitness provider or such other state or federal agency that can verify the licensure or certification of any wellness or fitness professional, physician, or facility. Instavital does not examine, determine, or warrant the competence of any personal wellness and/or fitness care provider, medical provider, or any other type of provider who may be listed on or through Instavital’s Service. Use of the Instavital Service to locate, contact, or receive services from a Wellness Consultant User, medical provider, personal wellness and/or fitness care provider, and/or any other type of provider is entirely voluntary and will not give rise to any liability against Instavital. In no event shall Instavital be liable for damages to any Client User of the Wellness Consultant Users on the Instavital Service.
1.6Instavital offers Users communication services to contact Members and/or Facilities they are interested in seeking personal wellness and/or fitness related services from. These communication services include 1) email messaging through Instavital, 2) telephone numbers, and 3) booking and reservations tools unless a Wellness Consultant User or elects to opt-out of such services, and 4) web links to Wellness Consultant User or websites.
1.7User emails will be read and moderated to check for spam or other inappropriate content. Emails may not be sent to Wellness Consultant Users without the authorization of Instavital. Inappropriate content may include without limitation solicitation and spam.
1.8Individual personal wellness and/or fitness providers, physicians, or other qualified professionals who register for Instavital’s Service must acknowledge and agree to this Terms of Service Agreement.
1.9This Agreement, which incorporates by reference other provisions applicable to User’s use of Instavital, sets forth the terms and conditions that apply to User’s use of Instavital. By using Instavital, User agrees to comply with all of the terms and conditions hereof. The right to use Instavital is personal to User and is not transferable to any person or entity.
1.10Instavital does not guarantee results. Users may submit reviews of Wellness Consultant Users; however, such reviews do not constitute a guarantee, warranty, or prediction regarding the outcome of any future health issues. Instavital will bear no responsibility or liability of any kind for any content that is generate or posted by any User or Wellness Consultant User (“User-Generated Content”) or any advice you encounter on or through the Service, and any use or reliance on User-Generated Content or wellness and fitness advice is solely at your own risk.
1.11Wellness Consultant Users are not Employees of Instavital. Instavital’s Service provides a platform for certain Wellness Consultant Users to offer and provide wellness and fitness services to Client Users on a consulting basis. Wellness Consultant Users are not employees of Instavital.
1.12User Responsibilities. Wellness Consultant Users are solely responsible for the accuracy and legality of any information, solicitations, advice, or advertisements that they choose to post or place on or through the Service, including without limitation any User-Generated Content and any communications with potential clients on or through the Site or the Service are fully compliant with all applicable regulations, laws, and rules of professional conduct.
1.13Payment of Wellness Consultant Users. The following terms shall govern the payment and Wellness Consultant Users:
(a)Instavital Is Not A Party To Contracts. Client Users may contract with Wellness Consultant Users on or through the Service. Such contracts are solely between the Wellness Consultant Users and the Client User. Instavital is not and will not be a party to any contracts between or among Client Users and Wellness Consultant Users that are submitted through our Service. Instavital simply facilitates these contracts by supplying a platform for Client Users to find Wellness Consultant Users, and offers communication management and payment tools.
(b)All Fees Are Paid To Wellness Consultant Users. Instavital does not provide wellness and/or fitness services and does not charge for such services. Payments made to Wellness Consultant Users via Instavital’s billing and payments platform are transferred directly to the Wellness Consultant User’s payment account, less any applicable service and processing fees.
(c)Wellness Consultant Users Receive Payment Through The Service For All User Transactions. Wellness Consultant Users who are hired by a Client User through the Service will receive payment through the Service for all transactions related to that Client User, including any subsequent transactions that may not necessarily be related to the initial project or job. If a Client User is either unwilling or unable to make payment via Instavital, Wellness Consultant User agrees to notify Instavital of any alternative payment arrangement.
(d)Promotional Codes and Credits. Instavital may, at its own election and in its sole discretion, create and offer promotional codes that Client Users and/or Wellness Consultant Users may redeem for account credit; complimentary or discounted wellness and/or fitness services; and/or other features or benefits relating to a Wellness Consultant User’s services, subject to the following terms and any additional terms that Instavital may from time to time establish for any particular promotional code (“Promo Codes”).
(e)Use of Promo Codes Does Not Imply an Patient or Client Relationship between the Wellness User Consultant and Instavital. Instavital may offer Users or potential Users access to discounts that are supplied by Instavital which may, in part, apply Instavital’s funds to pay a portion of the fees paid by Users to Wellness Consultant Users. Instavital’s payment or contribution of such funds to enable the use of such coupons does not imply any client-provider relationship between Instavital and the Wellness Consultant Users where a coupon is applied toward any paid billings from a User.
(f)Promo Codes must be used by their intended audience, for their intended purpose, and in a lawful manner.
(g)Promo codes may not be duplicated, sold, or transferred in any manner, or made available to the general public (whether posted to a public forum or otherwise), unless expressly permitted by Instavital. Promo Codes have no cash value and may expire or be disabled by Instavital at any time, for any reason, prior to your use. Instavital reserves the right to withhold or deduct credits or other features or benefits obtained through the use of Promo Codes by you or any other User in the event that Instavital determines or believes that the use or redemption of the Promo Code was in error, fraudulent, illegal, or in violation of the applicable Promo Code terms.
2. ACCOUNTS
2.1 Account Creation. In order to use the Services, you must register for an account ("Account") and provide certain information about yourself as prompted by the account registration form. You represent and warrant that: (a) all required registration information you submit is truthful and accurate; (b) you will maintain the accuracy of such information. You may delete your Account at any time, for any reason, by following the instructions on the Service. Company may suspend or terminate your Account in accordance with this Agreement.
2.2 Account Responsibilities. You are responsible for maintaining the confidentiality of your Account login information and are fully responsible for all activities that occur under your Account. You agree to immediately notify Company of any unauthorized use, or suspected unauthorized use of your Account or any other breach of security. Company cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements.
2.3 No Reliance on User-Generated Content. For the avoidance of doubt, User-Generated Content posted on or through the Service, such as blog posts, articles, or videos, is provided for informational purposes only, with no assurance that such User-Generated Content is true, correct, recommended, or accurate. User-Generated Content is not a substitute for medical advice or a solicitation to offer medical advice regarding specific facts or health conditions. You should not delay or forego seeking medical advice, nor disregard professional medical advice or assistance based on any User-Generated Content on the Service. Delay in seeking such medical assistance or advice could result in worsening of a condition, injury, or death. User-Generated Content is not regulated by any federal, state, or local medical regulatory or self-regulatory authority.
2.4 No Liability for User Interactions. Instavital may monitor communications and interactions on Service. Any liability, loss, or damage that results from any interactions among Users, Client Users, and/or Wellness Consultant Users, including, without limitation, any postings that you input or receive through your use of the Service is solely your responsibility. At our discretion, we may monitor and/or record your general interactions with the Service, though we will not monitor or record the specific details of such interactions.
3. ACCESS TO THE SERVICES
3.1 License. Subject to the terms and conditions of this Agreement, the Company grants you a limited, non-exclusive and non-transferable license to the extent necessary and required to access, explore, and otherwise use this Service.
3.2 Fees & Payment. Company reserves the right to charge fees and to require payment of such fees for any or all Services used by Users. You agree to pay all applicable fees in connection with Services selected or used by you. Company reserves the right to change its prices and to institute new fees and other charges at any time and may, at its discretion, provide notice via email or by posting on the Service. Your use of the Services following this notification constitutes your acceptance of any new or increased charges and/or fees. Any fees paid hereunder are nonrefundable.
3.3 Certain Restrictions. The rights granted to you in these Terms are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Service, whether in whole or in part, or any content displayed on the Service; (b) you shall not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Service; (c) you shall not access the Service in order to build a similar or competitive website, product, or service; and (d) except as expressly stated herein, no part of the Service may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means. Unless otherwise indicated, any future release, update, or other addition to functionality of the Service shall be subject to these Terms. All copyright and other proprietary notices on the Service (or on any content displayed on the Service) must be retained on all copies thereof.
3.4 Modification. Company reserves the right, at any time, to modify, suspend, or discontinue The Service (in whole or in part) with or without notice to you. You agree that Company will not be liable to you or to any third party for any modification, suspension, or discontinuation of the Service or any part thereof.
3.5 No Support or Maintenance. You acknowledge and agree that Company will have no obligation to provide you with any support or maintenance in connection with the Service, unless Company explicitly agrees to provide such support and maintenance services in a separate definitive written agreement between you and Company, which has been signed by you and Company.
3.6 Ownership. Excluding any User Content that you may provide (defined below), you acknowledge that all the intellectual property rights, including copyrights, patents, trademarks, and trade secrets, in the Service and its content are owned by Company or Company’s suppliers as the case may be. Neither these Terms, nor your access to the Service, shall be deemed to transfer to you or any third party any rights, title or interest in or to such intellectual property rights, except for the limited access rights expressly set forth in Section 2.1. Company and its suppliers reserve all rights not granted in these Terms. There are no implied licenses granted under these Terms.
3.7 Fees & Payment. Instavital reserves the right to charge fees and to require payment of such fees for any or all Services used by you. You agree to pay all applicable fees in connection with Services selected by you. Company reserves the right to change its prices and to institute new fees and other charges at any time and may, at its discretion, provide notice via email or posted on the Service. Your use of the Services following such notification constitutes your acceptance of any new or increased charges and or fees. Any fees paid hereunder are nonrefundable.
4. USER CONTENT
4.1 User Content. "User Content" means any and all information and content that a User submits to, or uses with, the Service (e.g., content in the User’s profile or postings). You are solely responsible for your User Content. You assume all risks associated with use of your User Content, including any reliance on its accuracy, completeness or usefulness by others, or any disclosure of your User Content that personally identifies you or any third party. You hereby represent and warrant that your User Content does not violate our Acceptable Use Policy (defined in Section 3.3). You may not represent or imply to others that your User Content is in any way provided, sponsored or endorsed by Company. Because you alone are responsible for your User Content, you may expose yourself to liability if, for example, your User Content violates the Acceptable Use Policy. Company is not obligated to backup any User Content, and your User Content may be deleted at any time without prior notice. You are solely responsible for creating and maintaining your own backup copies of your User Content if you desire.
4.2 License. You hereby grant (and you represent and warrant that you have the right to grant) to Company an irrevocable, nonexclusive, royalty-free and fully paid, worldwide license to reproduce, distribute, publicly display and perform, prepare derivative works of, incorporate into other works, and otherwise use and exploit your User Content, and to grant sublicenses of the foregoing rights, solely for the purposes of including your User Content in the Service. You hereby irrevocably waive (and agree to cause to be waived) any claims and assertions of moral rights or attribution with respect to your User Content.
4.3 Acceptable Use Policy. The following terms constitute our "Acceptable Use Policy":
(a) You agree not to use the Service to collect, upload, transmit, display, or distribute any User Content (i) that violates 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) that is unlawful, harassing, abusive, tortious, threatening, harmful, invasive of another’s privacy, vulgar, defamatory, false, intentionally misleading, trade libelous, pornographic, obscene, patently offensive, promotes racism, bigotry, hatred, or physical harm of any kind against any group or individual or is otherwise objectionable; (iii) that is harmful to minors in any way; or (iv) that is in violation of any law, regulation, or obligations or restrictions imposed by any third party.
(b) In addition, you agree not to: (i) upload, transmit, or distribute to or through the Service any computer viruses, worms, or any software intended to damage or alter a computer system or data; (ii) send through the Service unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (iii) use the Service to harvest, collect, gather or assemble information or data regarding other Users, including email addresses, without their consent; (iv) interfere with, disrupt, or create an undue burden on servers or networks connected to the Service, or violate the regulations, policies or procedures of such networks; (v) attempt to gain unauthorized access to the Service (or to other computer systems or networks connected to or used together with the Service), whether through password mining or any other means; (vi) harass or interfere with any other user’s use and enjoyment of the Service; or (vi) use software or automated agents or scripts to produce multiple accounts on the Service, or to generate automated searches, requests, or queries to (or to strip, scrape, or mine data from) the Service (provided, however, that we conditionally grant to the operators of public search engines revocable permission to use spiders to copy materials from the Service for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials, subject to the parameters set forth in our robots.txt file).
4.4 Enforcement. Company reserves the right (but has no obligation) to review any User Content, and to investigate and/or take appropriate action against you in our sole discretion if you violate the Acceptable Use Policy or any other provision of these Terms or otherwise create liability for us or any other person. Such action may include removing or modifying your User Content, terminating your Account in accordance with Section 8, and/or reporting you to law enforcement authorities.
4.5 Feedback. If you provide Company with any feedback or suggestions regarding the Service ("Feedback"), you hereby assign to Company all rights in such Feedback and agree that Company shall have the right to use and fully exploit such Feedback and related information in any manner it deems appropriate. Company will treat any Feedback you provide to Company as non-confidential and nonproprietary. You agree that you will not submit to Company any information or ideas that you consider to be confidential or proprietary.
5. INDEMNIFICATION
You agree to indemnify and hold Company (and its officers, employees, and agents) harmless, including costs and legal fees, from any claim or demand made by any third party due to or arising out of (a) your use of the Service, (b) your violation of these Terms, (c) your violation of applicable laws or regulations or (d) your User Content. Company reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate with our defense of these claims. You agree not to settle any matter without the prior written consent of Company. Company will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
6. THIRD-PARTY LINKS & ADS; OTHER USERS
6.1 Third-Party Links & Ads. the Service may contain links to third-party websites and services, and/or display advertisements for third parties (collectively, "Third-Party Links & Ads"). Such Third-Party Links & Ads are not under the control of Company, and Company is not responsible for any Third-Party Links & Ads. To the extent that Company may provide access to Third-Party Links & Ads, Company provides access to such Third-Party Links & Ads only as a convenience to you, and does not review, approve, monitor, endorse, warrant, or make any representations with respect to any such Third-Party Links & Ads. You use all Third-Party Links & Ads at your own risk, and should apply a suitable level of caution and discretion in doing so. When you click on any Third-Party Links & Ads, the applicable third party’s terms and policies apply to your use thereof, including such third party’s privacy, terms of use, and data gathering practices. You are solely responsible for conducting the research and investigation that you deem necessary and appropriate prior to using such Third-Party Links & Ads and prior to proceeding with any transaction in connection with such Third-Party Links & Ads.
6.2 Other Users. Each user of the Service is solely responsible for any and all of its own User Content. Because we do not control User Content, you acknowledge and agree that we are not responsible for any User Content, whether provided by you or by others. We make no guarantees regarding the accuracy, currency, suitability, or quality of any User Content. Your interactions with other users of the Service are solely between you and such users. You agree that Company will not be responsible for any loss or damage incurred as the result of any such interactions. If there is a dispute between you and any user of the Service, we are under no obligation to become involved.
6.3 Release. You hereby release and forever discharge the Company (and our officers, employees, agents, successors, and assigns) from, and hereby waive and relinquish, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or that relates directly or indirectly to, the Service (including any interactions with, or act or omission of, other users of the Service or any Third-Party Links & Ads). IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: "A GENERAL RELEASE DOES NOT EXTEND TO 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."
6.4 Privacy. You acknowledge and confirm that you have read Instavital’s Privacy Policy, the terms of which are incorporated by reference herein, and agree that the terms of Instavital’s Privacy Policy are reasonable. You consent to the use of your personal information by Instavital and/or its third party providers, partners, Wellness Consultant Users, and affiliates in accordance with the terms of and for the purposes set forth in the Privacy Policy
7. DISCLAIMERS.
7.1 MEDICAL DISCLAIMER. INSTAVITAL IS NOT A MEDICAL REFERRAL SERVICE OR MEDICAL SERVICE PROVIDER. WE DO NOT RECOMMEND OR ENDORSE ANY PARTICULAR MEDICAL, FITNESS, OR WELLNESS TREATMENT OF ANY KIND. INSTAVITAL DOES NOT OFFER ADVICE REGARDING THE SUITABILITY OR APPROPRIATENESS OF ANY MEDICAL, FITNESS, OR WELLNESS TREATMENT FOR ANY MEDICAL CONDITION. NEITHER THIS SERVICE NOR ANY OF THE DATA OR INFORMATION CONTAINED HEREIN IS INTENDED TO BE, AND SHOULD NOT BE CONSTRUED AS, A SUBSTITUTE FOR ADVICE OR TREATMENT BY LICENSED HEALTH OR MEDICAL PROFESSIONALS. INSTAVITAL AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES AND AFFILIATES, EXPRESSLY DISCLAIM ANY AND ALL RESPONSIBILITY AND LIABILITY ARISING FROM (A) YOUR USE OF OR RELIANCE UPON THE SERVICE OR THE INFORMATION THAT IS MADE AVAILABLE ON OR THROUGH THE SERVICE AS A MEDICAL REFERENCE SOURCE, (B) ANY AND ALL ADVICE, TREATMENTS, AND SERVICES RENDERED BY ANY THIRD-PARTY PROVIDER, PARTNER, WELLNESS CONSULTANT USER, OR AFFILIATE FEATURED ON THIS SERVICE, OR (C) ANY CLAIMS THAT MAY DIRECTLY OR INDIRECTLY RESULT FROM YOUR RELIANCE UPON OR USE THEREOF. THE COMPANY ADVISES YOU TO PROMPTLY SEEK APPROPRIATE MEDICAL ATTENTION AND CARE SHOULD YOU HAVE ANY MEDICAL OR HEALTH CARE RELATED QUESTIONS OR CONCERNS, OR IF YOU BELIEVE FOR ANY REASON THAT YOU MAY HAVE A CONDITION THAT MIGHT REQUIRE MEDICAL ATTENTION. YOU ARE ADVISED TO ALWAYS CONSULT WITH YOUR PHYSICIAN AND/OR QUALIFIED HEALTHCARE PROFESSIONAL PRIOR TO BEGINNING ANY TREATMENT, NUTRITION, FITNESS, OR WELLNESS PROGRAM.
7.2 SERVICE DISCLAIMERS THE SERVICE IS PROVIDED ON AN "AS-IS" AND "AS AVAILABLE" BASIS, AND COMPANY (AND OUR SUPPLIERS) EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ALL WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NONINFRINGEMENT. WE (AND OUR SUPPLIERS) MAKE NO WARRANTY THAT THE SERVICE WILL MEET YOUR REQUIREMENTS, WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS, OR WILL BE ACCURATE, RELIABLE, FREE OF VIRUSES OR OTHER HARMFUL CODE, COMPLETE, LEGAL, OR SAFE. IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE SERVICE, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO NINETY DAYS FROM THE DATE OF FIRST USE. THE FOREGOING DISCLAIMER MAY NOT APPLY TO YOU IF YOU RESIDE IN A STATE THAT DOES NOT ALLOW DISCLAIMERS OF IMPLIED WARRANTIES.
8. LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL COMPANY (OR OUR SUPPLIERS) BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFITS, LOST DATA, COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS, OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO THESE TERMS OR YOUR USE OF, OR INABILITY TO USE, THE SERVICE, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACCESS TO, AND USE OF, THE SERVICE IS AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR DEVICE OR COMPUTER SYSTEM, OR LOSS OF DATA RESULTING THEREFROM.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO A MAXIMUM OF FIFTY US DOLLARS (U.S. $50). THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT. YOU AGREE THAT OUR SUPPLIERS WILL HAVE NO LIABILITY OF ANY KIND ARISING FROM OR RELATING TO THIS AGREEMENT.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
9. TERM & TERMINATION
Subject to this Section, these Terms will remain in full force and effect while you use the Service. We may suspend or terminate your rights to use the Service (including your Account) at any time for any reason at our sole discretion, including for any use of the Service in violation of these Terms. Upon termination of your rights under these Terms, your Account and right to access and use the Service will terminate immediately. You understand that any termination of your Account may involve deletion of your User Content associated with your Account from our live databases. Company will not have any liability whatsoever to you for any termination of your rights under these Terms.
10. HIPAA COMPLIANCE
Instavital is committed to ensuring compliance with the Health Insurance Portability and Accountability Act (HIPAA). To that end, we wish to clarify and reaffirm certain aspects of how Instavital is compliant.
Personally identifiable health information is protected.
All personally identifiable health information about potential clients, clients, and other users must be kept off of any domain associated with Instavital. If a member, partner, Wellness Consultant User, or affiliate of Instavital obtains identifiable health information in connection with Instavital services, it must be kept in accordance with HIPAA mandates, and the member, partner, Wellness Consultant User, or affiliate of Instavital is solely responsible for ensuring this information is kept in compliance with HIPAA, including keeping that information encrypted or undertaking other security measures such as backups, disposal, storage, transmission, and integrity.
Since Instavital itself bans personally identifiable health information and does not provide any health care services itself, members, partners, Wellness Consultant Users, and affiliates of Instavital are not Business Associates under HIPAA and therefore any such agreements are not necessary. Instead, such parties must comply with the terms of service for such parties and this Agreement and must comply with the strictures of HIPAA, HITECH, the Omnibus HIPAA requirements, and any other applicable federal, state, or local law, rule, or regulation that applies to the storage, handling, transmission, or other aspects of personally identifiable health information, particularly in any medical, wellness, fitness, or treatment context. Instavital does not and will not verify that any partner, Wellness Consultant User, or affiliate of Instavital is or are in compliance with such rules and regulations because these parties are not employed or contracted by Instavital and operate outside of Company’s control.
Finally, members, partners, Wellness Consultant Users, and affiliates agree that they will not link Instavital with any personally identifiable health information, treatment information, or other data from potential or actual clients. Any information related to the provisioning of medical or personal wellness and/or fitness services shall be strictly kept off of the Service.
For the avoidance of doubt, partners, Wellness Consultant Users, and affiliates do not provide medical, wellness and/or fitness services on or through Instavital.
While Wellness Consultant Users advertise on Instavital and may discuss treatment, wellness, and fitness issues on Instavital, specific treatment through Instavital itself is prohibited. All Wellness Consultant Users may only provide such wellness and fitness treatment or services out of their own offices, on their digital platforms, in locations as agreed upon independently with each Client User, or through any other method that does not involve Instavital.
Wellness Consultant Users and partners may use Instavital to advertise and receive messages from potential clients. In such cases, the Wellness Consultant Users and partners must not provide information that can be correlated to personally identifiable information except by the provider of the services themselves. Each party must comply with HIPAA and other regulations and rules.
11. COPYRIGHT POLICY
Company respects the intellectual property of others and asks that users of our Service do the same. In connection with our Service, we have adopted and implemented a policy respecting copyright law that provides for the removal of any infringing materials and for the termination, in appropriate circumstances, of users of our online Service who are repeat infringers of intellectual property rights, including copyrights. If you believe that one of our users is, through the use of our Service, unlawfully infringing the copyright(s) in a work, and wish to have the allegedly infringing material removed, the following information in the form of a written notification (pursuant to 17 U.S.C. § 512(c)) must be provided to our designated Company:
1.your physical or electronic signature;
2.identification of the copyrighted work(s) that you claim to have been infringed;
3.identification of the material on our services that you claim is infringing and that you request us to remove;
4.sufficient information to permit us to locate such material;
5.your address, telephone number, and email address;
6.a statement that you have a good faith belief that use of the objectionable material is not authorized by the copyright owner, its agent, or under the law; and
7.a statement that the information in the notification is accurate, and under penalty of perjury, that you are either the owner of the copyright that has allegedly been infringed or that you are authorized to act on behalf of the copyright owner.
Please note that, pursuant to 17 U.S.C. § 512(f), any misrepresentation of material fact (falsities) in a written notification automatically subjects the complaining party to liability for any damages, costs and attorney’s fees incurred by us in connection with the written notification and allegation of copyright infringement.
12. GENERAL
12.1 Changes. These Terms are subject to occasional revision, and if we make any substantial changes, we may notify you by sending you an email to the last email address you provided to us (if any), and/or by prominently posting notice of the changes on our Service. You are responsible for providing us with your most current email address. In the event that the last email address that you have provided us is not valid, or for any reason is not capable of delivering to you the notice described above, our dispatch of the email containing such notice will nonetheless constitute effective notice of the changes described in the notice. Any changes to these Terms will be effective upon the earlier of thirty calendar days following our dispatch of an email notice to you (if applicable) or thirty calendar days following our posting of notice of the changes on our Service. These changes will be effective immediately for new users of our Service. Continued use of our Service following notice of such changes shall indicate your acknowledgement of such changes and agreement to be bound by the terms and conditions of such changes.
12.2 Dispute Resolution. Please read this Arbitration Agreement carefully. It is part of your contract with Company and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
(a) Applicability of Arbitration Agreement. All claims and disputes (excluding claims for injunctive or other equitable relief as set forth below) in connection with the Terms or the use of any product or service provided by the Company that cannot be resolved informally or in small claims court shall be resolved by binding arbitration on an individual basis under the terms of this Arbitration Agreement. Unless otherwise agreed to, all arbitration proceedings shall be held in English. This Arbitration Agreement applies to you and the Company, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or goods provided under the Terms.
(b) Notice Requirement and Informal Dispute Resolution. Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute ("Notice") describing the nature and basis of the claim or dispute, and the requested relief. A Notice to the Company should be sent to: 4821 E. Riverside Drive, Suite #117, Austin, Texas, 78741. After the Notice is received, you and the Company may attempt to resolve the claim or dispute informally. If you and the Company do not resolve the claim or dispute within thirty days after the Notice is received, either party may begin an arbitration proceeding. The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.
(c) Arbitration Rules. Arbitration shall be initiated through the American Arbitration Association ("AAA"), an established alternative dispute resolution provider ("ADR Provider") that offers arbitration as set forth in this section. If AAA is not available to arbitrate, the parties shall agree to select an alternative ADR Provider. The rules of the ADR Provider shall govern all aspects of the arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with the Terms. The AAA Consumer Arbitration Rules ("Arbitration Rules") governing the arbitration are available online at www.adr.org or by calling the AAA at 1-800-778-7879. The arbitration shall be conducted by a single, neutral arbitrator. Any claims or disputes where the total amount of the award sought is less than Ten Thousand U.S. Dollars (US $10,000.00) may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount of the award sought is Ten Thousand U.S. Dollars (US $10,000.00) or more, the right to a hearing will be determined by the Arbitration Rules. Any hearing will be held in a location within 100 miles of your residence, unless you reside outside of the United States, and unless the parties agree otherwise. If you reside outside of the U.S., the arbitrator shall give the parties reasonable notice of the date, time and place of any oral hearings. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. If the arbitrator grants you an award that is greater than the last settlement offer that the Company made to you prior to the initiation of arbitration, the Company will pay you the greater of the award or $2,500.00. Each party shall bear its own costs (including attorney’s fees) and disbursements arising out of the arbitration and shall pay an equal share of the fees and costs of the ADR Provider.
(d) Additional Rules for Non-Appearance Based Arbitration. If non-appearance based arbitration is elected, the arbitration shall be conducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise agreed by the parties.
(e) Time Limits. If you or the Company pursue arbitration, the arbitration action must be initiated and/or demanded within the statute of limitations (i.e., the legal deadline for filing a claim) and within any deadline imposed under the AAA Rules for the pertinent claim.
(f) Authority of Arbitrator. If arbitration is initiated, the arbitrator will decide the rights and liabilities, if any, of you and the Company, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages, and to grant any nonmonetary remedy or relief available to an individual under applicable law, the AAA Rules, and the Terms. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and the Company.
(g) Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in a court and are subject to very limited review by a court. In the event any litigation should arise between you and the Company in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND THE COMPANY WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.
(h) Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.
(i) Confidentiality. All aspects of the arbitration proceeding, including but not limited to the award of the arbitrator and compliance therewith, shall be strictly confidential. The parties agree to maintain confidentiality unless otherwise required by law. This paragraph shall not prevent a party from submitting to a court of law any information necessary to enforce this Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.
(j) Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Agreement shall continue in full force and effect.
(k) Right to Waive. Any or all of the rights and limitations set forth in this Arbitration Agreement may be waived by the party against whom the claim is asserted. Such waiver shall not waive or affect any other portion of this Arbitration Agreement.
(l) Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Company.
(m) Small Claims Court. Notwithstanding the foregoing, either you or the Company may bring an individual action in small claims court.
(n) Emergency Equitable Relief. Notwithstanding the foregoing, either party may seek emergency equitable relief before a state or federal court in order to maintain the status quo pending arbitration. A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Arbitration Agreement.
(o) Claims Not Subject to Arbitration. Notwithstanding the foregoing, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark or trade secrets shall not be subject to this Arbitration Agreement.
(p) Courts. In any circumstances where the foregoing Arbitration Agreement permits the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the courts located within Travis County, Texas, for such purpose
12.3 Export. the Service may be subject to U.S. export control laws and may be subject to export or import regulations in other countries. You agree not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from Company, or any products utilizing such data, in violation of the United States export laws or regulations.
12.4 Disclosures. Company is located at the address in Section 10.8. If you are a California resident, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Product of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
12.5 Electronic Communications. The communications between you and Company use electronic means, whether you use the Service or send us emails, or whether Company posts notices on the Service or communicates with you via email. For contractual purposes, you (a) consent to receive communications from Company in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Company provides to you electronically satisfy any legal requirement that such communications would satisfy if it were in a hard copy writing. The foregoing does not affect your non-waivable rights.
12.6 Third Party Rights. The provisions contained herein pertaining to medical disclaimers, exclusion of warranty,limitation of liability, and indemnification are for the benefit of Instavital and its officers, directors, employees, agents, representatives, affiliates, third party providers, and partners. Each of these parties shall have privity of contract with respect to such terms to the extent necessary to assert and enforce these provisions directly against you on its own behalf.
12.7 Entire Terms. These Terms constitute the entire agreement between you and us regarding the use of the Service. Our failure to exercise or enforce any right or provision of these Terms shall not operate as a waiver of such right or provision. The section titles in these Terms are for convenience only and have no legal or contractual effect. The word "including" means "including without limitation". If any provision of these Terms is, for any reason, held to be invalid or unenforceable, the other provisions of these Terms will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. For the avoidance of doubt, the relationship between any Wellness Consultant User and Company is that of an independent contractor, and neither party is an agent or partner of the other. The relationship between Instavital and each Wellness Consultant User will be that of independent contractor, and neither of us nor any of our respective officers, agents or employees will be deemed, held, or construed to be partners, joint venturers, fiduciaries, employees, or agents of the other. These Terms, and your rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by you without Company’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. Company may freely assign these Terms. The terms and conditions set forth in these Terms shall be binding upon assignees.
12.8 Headings. The headings used in this Agreement are included for convenience only and shall not limit or otherwise affect the terms and conditions herein, nor the shall they limit, influence, or otherwise affect the interpretation of the terms and conditions contained herein.
12.9 Severability. The terms and conditions contained herein shall be deemed severable. In the event that any provision is determined to be unenforceable or invalid, such provision shall nonetheless be enforced to the fullest extent permitted by applicable law, and such determination shall not affect the validity and enforceability of any other remaining provisions.
12.10 Copyright/Trademark Information. Copyright © 2017 Instavital, Inc. All rights reserved. All trademarks, logos and service marks ("Marks") displayed on the Service are our property or the property of other third parties. You are not permitted to use these Marks without our prior written consent or the consent of such third party which may own the Marks.
12.11 Taxes. You acknowledge and understand that Company’s prices, fees, and other charges do not include any taxes which may be applicable to your purchase and or use of the Service. For the avoidance of doubt, the term "Taxes" means all taxes, levies, imposts, duties, fines or similar governmental assessments imposed by any jurisdiction, country or any subdivision or authority thereof including, but not limited to federal, state or local sales, Value-Added Tax ("VAT"), Goods and Services Tax ("GST"), use, property, excise, service, transaction, privilege, occupation, gross receipts or similar taxes, in any way connected with this Agreement or agreement required hereunder, and all interest, penalties or similar liabilities with respect thereto, except such taxes imposed on or measured by a party’s net income. All prices, fees and other charges payable under this Agreement or agreement ancillary to or referenced by this Agreement, shall not include any Taxes. You agree to bear and be responsible for all such Taxes. You shall make all payments required without deduction of any Taxes, except as required by law, in which case the amount payable shall be increased as necessary so that after making any required deductions and withholdings, Company receives and retains (free from any liability for payment of Taxes) an amount equal to the amount it would have received had no such deductions or withholdings been made. If you are a tax-exempt entity or claims exemption from any Taxes under this Agreement, you shall provide a certificate of exemption upon execution of this Agreement and, after receipt of valid evidence of exemption, Company shall not charge you any Taxes from which it is exempt. Without limiting the foregoing, all references to payments made in this Agreement are exclusive of any VAT, GST or other consumption taxes (collectively, "VAT") chargeable and where required by law, VAT shall be itemized at the rate applicable, if any, and paid in addition thereto. You shall communicate to Company your VAT identification number(s) attributed by (i) the country where you have established your business, and/or (ii) any other country where you have established a fixed establishment, to which the Services under this Agreement are provided. Company shall consider the Services under this Agreement to be for your business use and provided to the location(s) of you in accordance with the provided VAT identification number(s). You shall comply with all applicable tax laws and regulations, and you shall provide Company all necessary assistance to facilitate the recovery or refund of any VAT paid by Company in relation to the Services to the respective government or authority. You hereby agree to indemnify Company for any Taxes and related costs paid or payable by Company attributable to Taxes that would have been your responsibility under this section if invoiced to you. You shall promptly pay or reimburse Company for all costs and damages related to any liability incurred by Company as a result of your noncompliance or delay with its responsibilities herein. Your obligation under this Section shall survive any termination or expiration of this Agreement.
13. Third Party Payment Service Provider
Users will be required to provide their credit card or bank account details to the Company and the PSP. As a condition of Instavital enabling payment processing services through the PSP, you agree to provide Instavital accurate and complete information about you and/or your business, and you authorize Instavital to share it and transaction information related to your use of the PSP services.
Users may be required to register with the PSP, agree to a PSP Account Agreement and the Terms of Service of the PSP and go through a vetting process at the request of the PSP to set up their account with the PSP. The PSP Account Agreement and Terms of Service retained by the Company are available at https://braintreepayments/ (collectively, the "PSP Agreement"), which may be modified by the PSP from time to time. By accepting these Terms of Use, each User agrees that they have downloaded or printed, and reviewed and agreed to the PSP Agreement. Please note t