Last updated: August 1, 2022
You acknowledge and agree that, as provided in greater detail in these Terms:
- OUR SERVICE IS NOT INTENDED FOR EMERGENCY SITUATIONS. IN THE EVENT OF A MEDICAL EMERGENCY, PLEASE CALL 911 OR APPROPRIATE EMERGENCY RESPONDERS.
- Virta may make unilateral modifications to these Terms.
- The Mobile Software is licensed, not sold to you, and you may use the Service only as set forth in these Terms.
- Your use of the Service may be subject to separate third-party terms of service and fees, including, without limitation, the terms of service and data, SMS, MMS, and other fees of your mobile network operator (the “Carrier”), which are your sole responsibility.
- The Service is provided “as is” without warranties of any kind and Virta’s liability to you is limited.
- Binding Arbitration: 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” in Section 22 for the details regarding your agreement to arbitrate any disputes with Virta.
1. Use of Our Service.
- Eligibility. This is a contract between you and Virta. By accepting these Terms, you represent and warrant to us that: (i) you are at least eighteen (18) years of age; (ii) you have not previously been suspended or removed from the Service; (iii) your registration and your use of the Service is in compliance with all applicable laws and regulations; and (iv) you are physically located in the United States and within a jurisdiction in which we offer our Service, including, without limitation, when utilizing the Service to receive telehealth consultations from a Provider (as defined below). If you are using the Service on behalf of an entity, organization, or company, you represent and warrant that you are an authorized representative of the entity and 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.
- Fitness for Treatment. 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 may 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 will be unable to use the Service. If this occurs, your registration will remain on file with Virta, but you will not be able to further utilize the Service. You can always return to Virta at a later time to determine whether your eligibility has changed.
- In Person Treatment. 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 and/or that the Service is otherwise not appropriate for you. In such a case, you may receive a notice from Virta on behalf of a Provider notifying you that you should seek medical care or treatment outside of the Service and/or that you may be unable to continue using the Service. Such notice may provide you with additional information regarding next steps.
- Virta Service. Subject to the terms and conditions of these Terms, you are hereby granted a non-exclusive, limited, non-transferable, freely revocable license to access and use the Service and the Virta Materials (as defined in Section 13) solely for your personal, noncommercial use. Virta reserves all rights not expressly granted herein in the Service and the Virta Materials. Virta may terminate this license at any time for any or no reason. Even after your license to access and use the Service and the Virta Materials is terminated, these Terms, including all of your obligations under these Terms prior to such termination, will remain in full force and effect and will govern any and all disputes arising out of your access and use of the Service and the Virta Materials.
- 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; however, to access most features of the Service, you must register for an account. If you open an account on behalf of a company, organization, or other entity, then “you” includes you and that entity. 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 firstname.lastname@example.org. 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 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.
- Rights and Responsibilities. WHEN USING THE SERVICE YOU HAVE THE RIGHT:
- to have your property and person treated with respect, consideration, and recognition of client/member dignity and individuality;
- to receive considerate, respectful and compassionate service regardless of your age, gender, race, national origin, religion, sexual orientation, gender identity, or disabilities; to be free from mistreatment, neglect, or verbal, mental, sexual, and physical abuse, including injuries of unknown source, and misappropriation of client/member property;
- to appoint a designee, if you so desire, to speak on your behalf and to make decisions on your behalf as it pertains to participation in the Services;
- to make informed decisions about your care, including receive information about the Services, staff qualifications, any changes to the Virta Program and any potential risks for discontinuing the Virta Program;
- to voice grievances/complaints, via the contact information listed below, regarding treatment or care or lack of respect of property, or recommend changes in policy, personnel, or care/service without restraint, interference, coercion, discrimination, or reprisal and without fear of termination of Services;
- to have grievances/complaints regarding treatment or care that is (or fails to be) furnished, or lack of respect of property investigated; and
- to be notified of contact information: for Virta Member Support at email@example.com;
- Prohibited Conduct. BY USING THE SERVICE YOU AGREE NOT TO:
- use the Service for any illegal purpose or in violation of any applicable law or regulation, including, without limitation, 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 or privacy right;
- post, upload, or distribute any User Content as defined in Section 7 (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 Virta Materials; or
- attempt to do any of the acts described in this Section 1(f) or assist or permit any person in engaging in any of the acts described in this Section 1(f).
2. Mobile Software
- Mobile Software and Equipment. We may make our Mobile Software available to access the Service via a mobile device. To use the Mobile Software you must have a mobile device that is compatible with the Mobile Software. Virta does not provide you with equipment to use the Mobile Software and does not warrant that the Mobile Software will be compatible with your mobile device. You may use mobile data in connection with the Mobile Software and may incur additional charges from your Carrier for these services. You are responsible for complying with any third-party terms of service and paying all fees charged by third parties to access and use the Mobile Software, including, without limitation, the payment of all applicable fees associated with any Carrier service plan you use in connection with your use of the Service (such as data, SMS, MMS, roaming, and other applicable fees charged by the Carrier). Virta hereby grants you a non-exclusive, non-transferable, revocable license to use a compiled code copy of the Mobile Software on mobile devices owned or leased solely by you, and in accordance with the features made available to you. You may not: (a) modify, disassemble, decompile or reverse engineer the Mobile Software, except to the extent that such restriction is expressly prohibited by law; (b) rent, lease, loan, resell, sublicense, distribute or otherwise transfer the Mobile Software to any third party or use the Mobile Software to provide time sharing or similar services for any third party; (c) make any copies of the Mobile Software; (d) remove, circumvent, disable, damage or otherwise interfere with security-related features of the Mobile Software, features that prevent or restrict use or copying of any content accessible through the Mobile Software, or features that enforce limitations on use of the Mobile Software; or (e) delete the copyright and other proprietary rights notices on the Mobile Software. You acknowledge that Virta may from time to time issue upgraded versions of the Mobile Software, and may automatically electronically upgrade the version of the Mobile Software that you are using on your mobile device. You consent to such automatic upgrading on your mobile device, and agree that the terms and conditions of these Terms will apply to all such upgrades. Any third-party code that may be incorporated in the Mobile Software is covered by the applicable open source or third-party license, if any, authorizing use of such code. The foregoing license grant is not a sale of the Mobile Software or any copy thereof, and Virta or its third-party partners or suppliers retain all right, title, and interest in the Mobile Software (and any copy thereof). Any attempt by you to transfer any of the rights, duties or obligations hereunder, except as expressly provided for in these Terms, is void and unenforceable. Virta reserves all rights not expressly granted under these Terms. If the Mobile Software is being acquired on behalf of the United States Government, then the following provision applies. The Mobile Software will be deemed to be “commercial computer software” and “commercial computer software documentation,” respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. Any use, reproduction, release, performance, display or disclosure of the Service and any accompanying documentation by the U.S. Government will be governed solely by these Terms and is prohibited except to the extent expressly permitted by these Terms. The Mobile Software originates in the United States, and is subject to United States export laws and regulations. The Mobile Software may not be exported or re-exported to certain countries or those persons or entities prohibited from receiving exports from the United States. In addition, the Mobile Software may be subject to the import and export laws of other countries. You agree to comply with all United States and foreign laws related to use of the Mobile Software and the Service.
- Mobile Software provided from the App Store by Apple. The following applies to any Mobile Software you acquire from the App Store (“App Store-Sourced Software”): You acknowledge and agree that these Terms are solely between you and Virta, not Apple, and that Apple has no responsibility for the App Store-Sourced Software or content thereof. Your use of the App Store- Sourced Software must comply with the App Store Terms of Service. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store-Sourced Software. In the event of any failure of the App Store-Sourced Software to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store-Sourced Software to you; to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store-Sourced Software, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be solely governed by these Terms and any law applicable to Virta as provider of the software. You acknowledge that Apple is not responsible for addressing any claims of you or any third party relating to the App Store-Sourced Software or your possession and/or use of the App Store-Sourced Software, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store- Sourced Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation; and all such claims are governed solely by these Terms and any law applicable to Virta as provider of the software. You acknowledge that, in the event of any third-party claim that the App Store-Sourced Software or your possession and use of that App Store-Sourced Software infringes that third-party’s intellectual property rights, Virta, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms. You and Virta acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries to these Terms as relates to your license of the App Store-Sourced Software, and that, upon your acceptance of the terms and conditions of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms as they relate to your license of the App Store-Sourced Software against you as a third- party beneficiary thereof.
- Mobile Software provided from Google Play Store. The following applies to any Mobile Software you acquire from the Google Play Store (“Google-Sourced Software”): (i) you acknowledge that these Terms are between you and Virta only, and not with Google, Inc. ( “Google”); (ii) your use of Google- Sourced Software must comply with Google’s then-current Google Play Store Terms of Service; (iii) Google is only a provider of the Google Play Store where you obtained the Google-Sourced Software; (iv) Virta, and not Google, is solely responsible for its Google-Sourced Software; (v) Google has no obligation or liability to you with respect to Google-Sourced Software or these Terms; and (vi) you acknowledge and agree that Google is a third-party beneficiary to these Terms as it relates to Virta’s Google-Sourced Software.
- WE DISCLAIM ALL WARRANTIES RELATED TO ANY MOBILE SOFTWARE. However, in the event that the Mobile Software fails to conform to any applicable warranty that we cannot disclaim according to applicable law, you may have the right to notify the App Store by Apple, or Google Play Store as relevant, which may refund the purchase price for the Mobile Software. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER THE APP STORE BY APPLE, OR THE GOOGLE PLAY STORE WILL HAVE ANY OTHER WARRANTY OBLIGATION WHATSOEVER WITH RESPECT TO THE MOBILE SOFTWARE, AND ANY OTHER CLAIMS, LOSSES, LIABILITIES, DAMAGES, COSTS OR EXPENSES ATTRIBUTABLE TO ANY FAILURE TO CONFORM TO ANY WARRANTY IS OUR RESPONSIBILITY.
4. Pricing, Charges, and Payment Terms.
- Health Plan and Employer Provider Pricing and Payment Terms. If you are a health plan or employer provider, or if you are an individual using the Service under a health plan or employer provider, the pricing and payment terms are between the health plan or employer provider and Virta and such terms are set forth in a separate agreement between the health plan or employer provider and Virta (“Covered Fees”).
- Individual Pricing and Payment Terms. If you are not accessing or using the Service under your health plan or employer, then you are accessing or using the Service on an individual basis. If you elect to use paid aspects of the Service, you agree to the pricing and payment terms as set forth in your account or made available to you online. Virta may add new services for additional fees and charges and add or amend fees and charges for existing services. Any change to our pricing or payment terms shall become effective in the billing cycle following notice of such change to you as provided in these Terms.
- Optional Continued Coverage. In the event that you are no longer eligible for coverage under a health plan or from an employer (e.g., if the health plan is canceled, the employer no longer offers such benefit or you are no longer employed by the employer) then you will have the option to (i) assume any and all fees and continue use of the Service or (ii) terminate your use of the Services. Virta will work with you and your health plan provider or employer to determine the level of coverage and/or Covered Fees that your health plan or employer provider will provide, if any, and if any additional fees apply to you. However, Virta makes no guarantees regarding the amount of coverage your employer or health plan will provide and you are responsible for charges incurred if you continue to use the Service after your health plan or employer coverage ends.
- If you pay for any part of the Service 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 information for any fees and other amounts that may become due and payable. Stripe is currently our third-party service provider for payment services. Stripe processes your payments and by using our Service you agree to be bound by Stripe’s Services Terms available at https://stripe.com/us/legal.
- Automatic Renewal. IF YOU HAVE SELECTED TO PAY FOR THE SERVICE ON A MONTHLY BASIS, UNLESS YOU NOTIFY US IN WRITING BY EMAILING firstname.lastname@example.org BEFORE A CHARGE THAT YOU WANT TO CANCEL OR THAT YOU DO NOT WANT THE SERVICE TO AUTOMATICALLY RENEW, YOU UNDERSTAND AND AGREE THAT YOUR MONTHLY CHARGES, AT THE FEES SET FORTH IN YOUR ACCOUNT OR MADE AVAILABLE TO YOU ONLINE, WILL AUTOMATICALLY RENEW ON A CONTINUOUS MONTHLY BASIS AND YOU AUTHORIZE US (WITHOUT NOTICE TO YOU, UNLESS REQUIRED BY APPLICABLE LAW) TO CHARGE YOU THE MONTHLY FEE AND ANY TAXES, USING ANY ELIGIBLE PAYMENT METHOD WE HAVE ON RECORD FOR YOU.
- Refunds. You may cancel your request for Service or account within fourteen (14) calendar days after registering for the Service and you may receive a refund for the Services for which you paid (the “Refund Period”). All refunds will be sent by check and will be processed within four to six (4 – 6) weeks of your request. To request a refund within the Refund Period, you must email email@example.com and include a mailing address where a refund check can be mailed. If you received any Medical Equipment (as described below), you will be refunded the amount you paid for the Service, less three hundred U.S. Dollars (USD $300) for such equipment. You may cancel your account as set forth in these Terms, however there are no refunds for cancellation besides those described herein under the Refund Period. In the event that we suspend or terminate your account or these Terms, you understand and agree that you shall receive no refund.
5. 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.
6. Medical Equipment.
Virta may provide users certain diabetic test supplies, including a scale, blood sugar and blood ketone meter and strips. The timing, fees, quantity and terms of all such supplies shall be at the Virta’s sole discretion. Refusal by Virta 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 Virta 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 Virta from any patient or third-party payer, including Medicaid, Medicare, commercial payers, any state or federal healthcare programs.
7. User Content.
- User Content Generally. Certain features of the Service may permit users to upload content to the Service (including without limitation the patient portal), 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 hereby grant Virta a worldwide, non-exclusive, royalty-free right and license (with the right to sublicense) to use, 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 that:
- 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 7 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: (a) 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; (b) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (c) 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.
8. 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.
501 Folsom Street, 1st Fl
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.
9. Third-Party Services and Linked Websites.
10. 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.
11. 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. All Additional Terms are incorporated by this reference into, and made a part of, these Terms.
12. Modification of these Terms.
We reserve the right, at our sole discretion, to change or update these Terms from time to time. Please check these Terms periodically for changes or updates. Modifications are effective upon publication. Your continued use of the Service after any such change or update constitutes your acceptance of the new Terms. If you do not agree to any of these Terms or any future Terms, do not use or access (or continue to access) the Service.
13. Ownership; Proprietary Rights.
The Service is owned and operated by Virta. The visual interfaces, graphics, names, logos, marks, content (other than User Content), design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Service (“Virta Materials”) provided by Virta are protected by intellectual property and other laws. All Virta Materials contained in the Service and all trademarks, service marks, copyrights and any and all other intellectual property rights and proprietary material related thereto are, and will remain, the exclusive property of Virta or our third-party licensors. Except as expressly authorized by Virta, you may not make use of the Virta Materials. Virta reserves all rights to the Virta Materials not granted expressly in these Terms.
14. Materials on Site Not Professional Advice.
Materials available on this Site including all data, information, text, graphics, links, and other material made available to you on this Site are provided as a convenience to our Site visitors. The information provided on this Site is for general informational and educational purposes only. Other than the personalized content sent to you by a health care provider in a message within the App or Website or the personalized advice a health care provider gives you during a video visit, you should not consider content on the Site to be the provision or practice of medical or professional health care advice or services. The materials provided on our Site are not intended to serve as medical or other professional advice and is not to be used for diagnosis or treatment of any condition or symptom.
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 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.
16. Non-Secure Communications.
17. Disclaimers; No Warranties.
- WHILE THE SERVICE PROVIDES ACCESS TO CERTAIN PROVIDERS THAT PROVIDE NON-EMERGENCY MEDICAL CARE, THE SERVICES CANNOT BE RELIED UPON 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 VIRTA 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 VIRTA MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING: (i) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON- INFRINGEMENT; AND (ii) 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 VIRTA 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 VIRTA 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 VIRTA MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE. YOU UNDERSTAND AND AGREE THAT YOU USE THE SERVICE, AND ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN VIRTA 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.
18. Limitation of Liability.
- IN NO EVENT WILL VIRTA 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 VIRTA 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 VIRTA 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, 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 18 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
19. 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 THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”
20. 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 Virta Materials included in the Service are appropriate or available for use in other locations.
These Terms, 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.
22. 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 22(a), we both agree that nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either of us to: (i) bring an individual action in small claims court; (ii) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (iii) seek injunctive relief in a court of law; or (iv) 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, 501 Folsom Street, San Francisco, CA 94105. The Notice must: (i) describe the nature and basis of the claim or dispute; and (ii) 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 Virta 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 Virta 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, Virta will pay you the highest of the following: (i) the amount awarded by the arbitrator, if any; or (ii) the last written settlement amount offered by Virta in settlement of the dispute prior to the arbitrator’s award. 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 ten thousand U.S. Dollars (USD $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 ten thousand U.S. Dollars (USD $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 nonappearance 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 VIRTA 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 Virta 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 22(f) is found to be unenforceable or if the entirety of this Section 22 is found to be unenforceable, then the entirety of this Section 22 will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 21 will govern any action arising out of or related to these Terms.
- Contact Information. The Service is offered by Virta Health, located at 501 Folsom Street, San Francisco, CA 94015. You may contact us by sending correspondence to that address or by emailing us at email@example.com.
23. 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.