These Terms and Conditions of Use (“Terms of Use” or “Terms”) govern your use of our online interfaces and properties (e.g., websites and mobile applications), which are owned and controlled by VivioMD Group LLC. (“VivioMD,”] “we,” or “us”), including the www.VivioMD .com website (collectively, the “Site”), as well as the services available to users. The non-clinical business support services we provide, and our Site, are collectively referred to herein as the “Platform”. The terms “you” and “your” mean you, the user.
Through the Site, we offer an online communication platform for health care professionals and users to connect using synchronous and asynchronous telecommunications technologies. We contract with OpenLoop Healthcare Partners P.C. (“OpenLoop”), and all members of OpenLoop’s affiliated professional entities (collectively, “Medical Groups”), which are independent medical groups with a network of United States based health care providers (each, a “Provider”) to provide online telehealth clinical consultations, services, and/or treatment. The professional medical services provided by the Medical Groups through the use of our Platform are collectively referred to in these Terms of Use as the “Services”.
Your acceptance of, and compliance with, these Terms of Use is a condition to your use of the Site and the Services. By clicking “Accept” you acknowledge you have read, understand, and accept all terms and conditions contained within these Terms of Use and our Privacy Policy. If you do not agree to be bound by these Terms of Use, you are not authorized to access or use this Site or the Services. If that is the case, promptly exit this Site. These Terms of Use provide that all disputes between you and VivioMD that in any way relate to these Terms of Use or your use of the Site or the Services will be resolved by binding arbitration. ACCORDINGLY, YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT, INCLUDING AS PART OF A CLASS ACTION PROCEEDING, TO ASSERT OR DEFEND YOUR RIGHTS UNDER THESE TERMS OF USE. Your rights will be determined by a neutral arbitrator and not by a judge or jury, and your claims cannot be brought as part of a class action. Please review the Section below entitled Dispute Resolution; Arbitration Agreement for the details regarding your agreement to arbitrate any disputes with VivioMD.
VivioMD reserves the right to modify these Terms of Use at any time, effective upon posting. Any use of this Site and the Services after such changes are effective will be deemed an acceptance of those changes. You agree to review the Terms of Use each time you access the Site so that you may be aware of any changes to these Terms.
The content of the Site, including without limitation, text, copy, audio, video, photographs, illustrations, graphics, and other visuals, is for informational purposes only and does not constitute professional medical advice, diagnoses, treatment, or recommendations of any kind by VivioMD.
YOU SHOULD ALWAYS SEEK THE ADVICE OF A QUALIFIED HEALTH CARE PROFESSIONAL WITH ANY QUESTIONS OR CONCERNS YOU MAY HAVE REGARDING YOUR INDIVIDUAL NEEDS AND ANY MEDICAL CONDITIONS.VivioMD ’s Site and the Services are not intended for use in the event of medical emergencies or other urgent situations. You should not disregard or delay seeking medical advice based on anything that appears or does not appear on the Site. You should seek emergency help or follow-up care when recommended by a Provider or when otherwise needed. You should continue to consult with your primary health care provider(s) and other health care professionals as recommended. Always seek the advice of a physician or other qualified health care provider concerning questions you have regarding a medical condition and before stopping, starting, or modifying any treatment or modification. If you believe you are experiencing any sort of a medical emergency, call 911 immediately.
AVAILABILITY OF SERVICESVivioMD currently offers services in all 50 U.S. states and the District of Columbia. However, VivioMD, the Medical Groups, and the Providers operate subject to federal, state, and local laws and other requirements, which may mean the Services will not be available in your state. You represent that you are not a person barred from enrolling for and/or receiving the Services under the laws of the United States or other applicable jurisdictions in which you may be located. Access to and use of the Site and/or the Services is limited exclusively to users located in States within the United States where the Services are available. The Services are not available to users located outside the United States. Accessing the Services from jurisdictions where content is illegal, or where we do not offer Services, is prohibited.
MEDICATION FULFILLMENT
VivioMD coordinates medication fulfillment through the following licensed pharmacies:
RedRock Pharmacy
https://www.redrockhomepharmacy.com1240 E 100 S #220, St. George, UT 84790
801-433-9500
Health Warehouse
https://www.healthwarehouse.com7107 Industrial Rd., Florence, KY 41042
800-748-7001
Precision Compounding Pharmacy
https://mypcphealth.com2657 Merrick Road, Bellmore, NY 11710
516-833-6262
Triad Rx
https://www.triadrx.us26258 Pollard Road, Daphne, AL 36526
251-380-7630
Prescription medications are only available if clinically appropriate and legally permissible, and only after consultation with a licensed provider. VivioMD does not guarantee that a prescription will be written.
PAYMENTS, SUBSCRIPTIONS, AND REFUNDS
Payment Authorization
By submitting payment information through the Platform, you authorize the Medical Groups, their affiliates, and their third-party payment processors to charge the payment method provided for all fees associated with the Services you select at checkout. This may include charges from Medical Groups, Providers, pharmacies, and laboratories. You agree to keep your payment information current and accurate at all times.
Responsibility for Fees
You understand and agree that you are responsible for all fees due for Services and Healthcare Services, including any fees charged by the Medical Groups, Providers, pharmacies, and laboratories that provide Healthcare Services to you in connection with the Services. Payments to the Medical Groups may include amounts collected on behalf of Providers, pharmacies, and laboratories. Any Healthcare Services not provided by a Provider, a Medical Group, or a participating pharmacy network, or otherwise made available through the Services, are not included in the payments collected by the Medical Groups and may be separately billed to you by the applicable health care organization or provider. In the event that your payment method expires or cannot be processed, you may be asked to provide an alternative payment method. The Medical Groups and/or Providers have no obligation to provide Healthcare Services or pharmacy services unless and until full payment has been received and/or verified.
Membership Subscriptions
Program membership fees are billed in advance for the subscription period you select (e.g., monthly, quarterly, annual). Unless cancelled prior to the renewal date, your membership will automatically renew for successive terms of equal length at the then-current rate. If you received a promotional rate or discount tied to a minimum commitment period and you cancel before completing that period, the discount will be forfeited and amounts for completed months will be recalculated at the full, undiscounted rate.
Medication Subscriptions
Medication orders are transmitted automatically once a Provider within the Medical Groups approves your prescription. Upon approval and submission to the dispensing pharmacy, the order is deemed final and cannot be cancelled, modified, returned, or refunded. Under federal and state law, medications cannot be returned once dispensed. You may cancel a medication subscription prior to provider approval or at least seventy-two (72) hours before the start of the next refill cycle, provided no order has been placed.
Refunds
If, after review by a Provider within the Medical Groups, you are determined not to be clinically eligible for the program or prescribed medication, you will receive a refund of amounts paid, less any non-refundable costs already incurred (such as provider consultations, laboratory services, or other third-party fees). Fees related to medications, consultations, or laboratories are non-refundable once services have been rendered or orders placed.
VivioMD may, at its sole discretion, issue refunds for the VivioMD Membership portion of your program (including any applicable Weight Loss Guarantee), but all such refunds will be processed by the Medical Groups and remain subject to their payment policies.
Weight Loss Guarantee
VivioMD may offer a Weight Loss Guarantee for eligible participants in its Weight Management Program. Under this Guarantee, if you have not lost at least ten percent (10%) of your baseline body weight by the end of twenty four (24) consecutive weeks of continuous participation in the program, and you meet all eligibility requirements listed below, the VivioMD Membership portion of your program fees may be refunded, less the cost of program services already incurred, including but not limited to provider consultations, laboratory services, and administrative processing. Medication costs are strictly non-refundable once dispensed. To qualify for this Guarantee, you must: (1) be a new VivioMD customer who completed the medical intake form and initial provider consultation with accurate, truthful health information, including medical history, BMI, and self-reported weight; (2) have continuously participated in the program for at least sixteen (16) consecutive weeks; (3) have taken weekly doses of your prescribed medication for sixteen (16) consecutive weeks as directed by your provider; (4) have followed medical recommendations for use of your prescribed medication, including any changes or adjustments directed by your provider; (5) have not been prescribed or taken any other weight loss medications within the twelve (12) months prior to and during the guarantee period; (6) have attended all required consultations, with no missed appointments without notice, and completed any required laboratory work; (7) have logged or updated your current weight in the VivioMD patient portal at least once per week during the guarantee period, with no gap longer than ten (10) days between updates; (8) at the end of the sixteen (16) weeks, have not lost at least ten percent (10%) of your baseline body weight; and (9) have an account in good standing at the time of your refund request, with no outstanding payments or balances. Refund requests under this Guarantee must be submitted within thirty (30) days after completion of the sixteen-week program period, and requests received after this window will not be eligible.fff
ELIGIBILITY; SITE ACCESS; SECURITYVivioMD’s Site and the Services are available only to individuals over the age of 18 years of age. Individuals under the age of 18 are considered “minors” and may not access the Site or the Services. You agree to fully, accurately, and truthfully create your VivioMD user account (“Account”) with information including but not limited to your name, mailing address, phone number, email address, and password, which become your login credentials. The login credentials are personal to you, and you are solely responsible for maintaining the confidentiality of your login credentials, and for all activities that occur under such login credentials. You agree to prohibit anyone else from using your login credentials and agree to immediately notify VivioMD at
info@viviomd.com in the event of any actual or suspected unauthorized use of your login credentials or other security concerns of which you become aware. Your access to the Site and the Services may be revoked by VivioMD at any time, with or without cause.
You are prohibited from violating or attempting to violate the security of the Site, including, without limitation: (a) accessing data not intended for such user or logging onto a server or an account which the user is not authorized to access; (b) attempting to probe, scan, or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization; or (c) accessing or using the Site or any portion thereof without authorization, in violation of these Terms of Use or in violation of applicable federal, state, or local law.
You may not use any scraper, crawler, spider, robot, or other automated tools or means of any kind to access or copy data on the Site, to deep-link to any feature or content on the Site, or to bypass our robot exclusion headers or other measures we may use to prevent or restrict access to the Site. Violations of system or network security may result in civil or criminal liability. VivioMD will investigate occurrences that may involve such violations and may involve, and cooperate with, law enforcement authorities in prosecuting users who are involved in such violations. You agree not to use any device, software, or routine to interfere or attempt to interfere with the proper working of this Site or any activity being conducted on this Site.
CONSENT TO COMMUNICATIONS AND THE USE OF TELEHEALTH SERVICESWhen you use the Site and/or the Services, or send emails, messages, and other communications from your desktop or mobile device to us, you are communicating with us electronically. You consent to receive communications from us electronically. You agree that: (a) all agreements and consents can be signed electronically; and (b) all notices, disclosures, and other communications we provide to you electronically satisfy any legal requirement(s) that such notices and other communications be in writing. VivioMD may contact you by telephone, mail, or email to verify your account information. VivioMD may request further information from you and you agree to provide such further information to ensure that you have not fraudulently created your Account. If you do not provide this information to VivioMD in the manner requested within fourteen (14) days of our request, we reserve the right to suspend, discontinue, or deny your access to and use of the Site and the Services until you provide the information to us as requested.
As mentioned above, medical and telehealth services accessed through the VivioMD platform are provided by OpenLoop. and other Medical Groups entities. Some States require documented informed consent for telehealth. All required patient consents for telehealth services, including informed consent, are collected and maintained by OpenLoop or its affiliated providers in accordance with applicable law.
You may review the current Telehealth Informed Consent Form here. Telehealth is a mode of delivering health care services via communication technologies to facilitate diagnosis, consultation, treatment, education, care management, and self-management of a patient’s health care. You should be aware that telehealth services may not be equivalent to in-person care. Technical problems may interrupt or stop your online visit before you are done. If you use the Internet for telehealth, use a network that is private and secure. There is a very small chance that someone could use technology to hear or see your telehealth visit. In some cases, Providers may determine that telehealth is not appropriate for your specific medical needs and may refer you to in-person care.
By providing your mobile number, you are agreeing to be contacted by telephone by or on behalf of VivioMD at the mobile number you have provided to receive informational, Service-related (e.g., progress tracking, reminders) communications relating to the Site and Services. VivioMD is committed to being compliant with the Controlling the Assault of Non-Solicited Pornography and Marketing Act (“CAN-SPAM Act”) and the Telephone Consumer Protection Act (“TCPA”). Emails, telephone calls, and newsletters received from us are intended to fully comply with the CAN-SPAM Act and the TCPA. In the event you receive an email or call from us which you do not believe is fully compliant with the CAN-SPAM Act or the TCPA, please contact us immediately at info@viviomd.com.
INTELLECTUAL PROPERTY RIGHTSAll pages within this Site and any material made available for download are the property of VivioMD, or its licensors or suppliers, as applicable, and may be protected by United States copyright and trademark laws.
With the exception of your electronic medical or treatment record, VivioMD retains all right, title, and interest in and to the Site, the Services, and any information, documentation, software, or other materials on the Site, and any patent, copyright, trade secret, trademark, service mark, or other intellectual property, or proprietary right in any of the foregoing, except for information on the Site licensed by VivioMD (in which case, the license provider retains all right, title, and interest therein).
You agree not to store, copy, modify, reproduce, retransmit, distribute, disseminate, rent, lease, loan, sell, publish, broadcast, display, or circulate such information to anyone. Use, reproduction, copying, or redistribution of VivioMD ’s trademarks, service marks, and logos are strictly prohibited without the prior written permission of VivioMD, as applicable. The immediately foregoing sentence also applies to any third-party trademarks, service marks, and logos posted on the Site. Nothing contained on the Site should be construed as granting, by implication, estoppel, waiver or otherwise, any license or right to use any trademarks, service marks, or logos displayed on the Site without the written grant thereof by VivioMD or the third-party owner of such trademarks, service marks, and/or logos. The Site may contain other proprietary notices and copyright information, the terms of which you agree to follow.
VivioMD may delete any information provided by you that it deems in its sole discretion fraudulent, abusive, defamatory, obscene, or in violation of copyright, trademark, or other intellectual property or ownership right of any other person or entity.
Subject to these Terms of Use, VivioMD grants you a revocable, nontransferable (except as provided below), personal, nonexclusive license to use the Site and the Services. VivioMD reserves the right, in its sole discretion, to terminate your access to all or part of this Site, with or without cause, and with or without notice. All rights not expressly granted to you in these Terms of Use are reserved and retained by VivioMD or its licensors, suppliers, publishers, rights holders, or other content providers.
You may provide suggestions, comments, or other feedback (collectively, “Feedback”) to VivioMD with respect to the Site or the Services. Feedback is voluntary. VivioMD may use Feedback for any purpose without obligation of any kind. To the extent a license is required under your intellectual property rights to make use of the Feedback, you grant VivioMD an irrevocable, non-exclusive, perpetual, fully-paid-up, royalty-free license to use the Feedback in connection with VivioMD ’s business, including the enhancement of the Site and/or the Services.
PROHIBITED USES
You may use the Site only for lawful purposes and in accordance with these Terms of Use. You agree not to use the Site:
(a) In any way that violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the United States or other countries).
(b) In any way that infringes or facilitates infringement on any copyright, patent, trademark, trade secret, or other proprietary, publicity, or privacy rights of any party, including such rights of third parties.
(c) To transmit, or procure the sending of, any advertising or promotional material, including any “junk mail,” “chain letter,” “spam,” or any other similar solicitation.
(d) To post or transmit: (a) a message under a false name; or (b) any data, materials, content, or information (including, without limitation, advice, and recommendations) which is: (1) libelous, defamatory, obscene, fraudulent, false, or contrary to the ownership or intellectual property rights of any other person, or (2) contains or promotes any virus, worm, Trojan horse, time bomb, malware, or other computer programing or code that is designed or intended to damage, destroy, intercept, download, interfere, manipulate, or otherwise interrupt or expropriate the Site or the Services, personal information, software, equipment, servers, or information or facilitate or promote hacking or similar conduct.
(e) To impersonate or misrepresent your identity or falsely state or misrepresent your affiliation with a person or entity.
(f) To engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Site or the Services, or which, as determined by us, may harm VivioMD or users of the Site and/or the Services, or expose them to liability.
Additionally, you agree not to:
(1) Use the Site in any manner that could disable, overburden, damage, or impair the Site or interfere with any other party’s use of the Site, including their ability to engage in real time activities through the Site.
(2) Use any robot, spider, or other automatic device, process, or means to access the Site for any purpose, including monitoring or copying any of the material on the Site.
(3) Use any device, software, or routine that interferes with the proper working of the Sites.
(4) Use any meta tags or any other “hidden text” utilizing VivioMD ’s name or trademarks without the express written consent of VivioMD.
(5) Harvest or collect personal information about any other individual who uses the Site or the Services.
(6) Introduce any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful.
(7) Attempt to reverse engine, reverse assemble, reverse compile, decompile, disassemble, translate, or otherwise alter, defraud, or create false results from any executable code, information on, or received by this Site.
(8) Attempt to gain unauthorized access to, interfere with, damage, or disrupt any parts of the Site, the server on which the Site is stored, or any server, computer, or database connected to the Site.
(9) Attack the Site via a denial-of-service attack or a distributed denial-of-service attack.
(10) Tamper, hack, spoof, copy, modify, or otherwise corrupt the administration, security, or proper function of the Site or the Services.
(11) Otherwise attempt to interfere with the proper working of the Site.
(12) Copy, distribute, modify, reproduce, publish, or use, in whole or in part, the Site or the Services except for purposes authorized or approved in writing by VivioMD.
ACCURACY OF INFORMATIONAlthough VivioMD attempts to ensure the integrity and accurateness of the Site and Service descriptions, it makes no representations, warranties or guarantees whatsoever as to the correctness or accuracy of the Site, Service descriptions, and other content on the Site. It is possible the Site could include typographical errors, inaccuracies, or other errors, and that unauthorized additions, deletions, and alterations could be made to the Site by third parties. In the event that an inaccuracy arises, please inform VivioMD at info@viviomd.com so it can be corrected.
Information contained on the Site may be changed or updated without notice. Additionally, VivioMD shall have no responsibility or liability for information or content posted to the Site from any non-VivioMD affiliated third party.
NO FUNCTIONALITY GUARANTEESVivioMD reserves complete and sole discretion with respect to the operation of the Site and the Services. We may withdraw, suspend, or discontinue any functionality or feature of the Site or the Services among other things. We are not responsible for transmission errors, corruption, or compromise of information carried over local or interchange telecommunications carrier. We are not responsible for maintaining information arising from use of the Site or with respect to the Services. We reserve the right to maintain, delete, or destroy all communications or information posted or uploaded to the Site or the Services in accordance with our internal record retention and/or destruction policies..
LINKS TO THIRD PARTY SITESVivioMD makes no representations whatsoever about any other website that you may access through this Site. When you access a third-party site, please understand it is independent from VivioMD and that VivioMD has no control over the content on that website. In addition, a link to a third-party website does not mean VivioMD endorses or accepts any responsibility for the content, or the use, of the linked website. It is up to you to take precautions to ensure that whatever you select for your use or download is free of such items as viruses, worms, Trojan horses, and other items of a destructive nature. If you decide to access any of the third-party sites linked to this Site, you do this entirely at your own risk.
USER INFORMATIONIf you submit, upload, post, or transmit any health information, medical history, conditions, problems, symptoms, personal information, consent forms, agreements, requests, comments, ideas, suggestions, information, files, videos, images or other materials to us or our Site (“User Information”), you agree not to provide any User Information that: (1) is false, inaccurate, defamatory, abusive, libelous, unlawful, obscene, threatening, harassing, fraudulent, pornographic, or harmful, or that could encourage criminal or unethical behavior; (2) violates or infringes the privacy, copyright, trademark, trade dress, trade secrets or intellectual property rights of any person or entity; or (3) contains or transmits a virus or any other harmful component. You agree not to contact other site users through unsolicited email, telephone calls, mailings, or any other method of communication. You represent and warrant to VivioMD, the Medical Groups, and the Providers that you have the legal right and authorization to provide all User Information to VivioMD, the Medical Groups, and the Providers for use as set forth herein and required by VivioMD, the Medical Groups, and the Providers.
You agree to defend, indemnify, and hold harmless VivioMD from and against all third-party claims, damages, and expenses (including reasonable attorneys’ fees) against or incurred by us arising out of any User Information you upload to or transmit through the Site.
You acknowledge that such information will be shared with and processed by the Medical Groups, and the Providers, including the fulfillment pharmacies and agree to allow VivioMD to transfer, as appropriate and in compliance with applicable laws, any User Information as may be necessary to third parties as may be useful to provide the Services or to transition our operation of the Site and/or the Services to new third-party partners with which we may choose to work.
CLAIMS OF COPYRIGHT INFRINGEMENTWe take claims of copyright infringement seriously. We will respond to notices of alleged copyright infringement that comply with applicable law. In accordance with the Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act (17 U.S.C. § 512) (“DMCA”), if you believe any material accessible on or from the Site infringes your copyright, you may request removal of or access to those materials by submitting written notification (a “DMCA Notice”) to our copyright agent designated below:
VivioMD Group LLC, Copyright Officer
If you fail to comply with all of the requirements of Section 512(c)(3) of the DMCA, your DMCA Notice may not be effective. Please be aware that if you knowingly and materially misrepresent that material or activity on the Site is infringing your copyright, you may be held liable for damages (including costs and attorneys’ fees) under Section 512(f) of the DMCA. It is our policy in appropriate circumstances to disable or terminate users who are repeat infringers.
DISCLAIMER OF WARRANTIESVivioMD DOES NOT WARRANT THAT ACCESS TO OR USE OF THE SITE WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT DEFECTS IN THE SITE WILL BE CORRECTED. THIS SITE, INCLUDING ANY CONTENT OR INFORMATION CONTAINED WITHIN IT OR ANY SITE-RELATED SERVICE, IS PROVIDED “AS IS,” WITH ALL FAULTS, WITH NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY OF INFORMATION, QUIET ENJOYMENT, AND TITLE/NON-INFRINGEMENT. VivioMD DOES NOT WARRANT THE ACCURACY, COMPLETENESS, OR TIMELINESS OF THE INFORMATION OBTAINED THROUGH THE SITE.
YOU ASSUME TOTAL RESPONSIBILITY AND RISK FOR YOUR USE OF THIS SITE, SITE-RELATED SERVICES, AND LINKED WEBSITES. VivioMD DOES NOT WARRANT THAT FILES AVAILABLE FOR DOWNLOAD WILL BE FREE OF VIRUSES, WORMS
, TROJAN HORSES, OR OTHER DESTRUCTIVE PROGRAMMING. YOU ARE RESPONSIBLE FOR IMPLEMENTING PROCEDURES SUFFICIENT TO SATISFY YOUR NEEDS FOR DATA BACK UP AND SECURITY.
WARRANTIES RELATING TO SERVICES OFFERED, SOLD, AND DISTRIBUTED BY VivioMD ARE SUBJECT TO SEPARATE WARRANTY TERMS AND CONDITIONS, IF ANY, PROVIDED BY VivioMD OR THIRD PARTIES WITH OR IN CONNECTION WITH THE APPLICABLE SERVICES. VivioMD DOES NOT ACCEPT ANY LIABILITY FOR THE CONSEQUENCES ARISING FROM THE APPLICATION, USE, OR MISUSE OF ANY SERVICES CONTAINED ON OR MADE AVAILABLE THROUGH THE SERVICE, INCLUDING ANY INJURY OR DAMAGE TO ANY PERSON OR PROPERTY AS A MATTER OF NEGLIGENCE, OR OTHERWISE.
INDEMNIFICATIONYou agree to defend, indemnify, and hold harmless VivioMD , the Medical Groups, and the Providers, and any affiliates, from and against any and all rights, demands, losses, liabilities, damages, claims, causes of action, actions, and suits (no matter whether at law or equity), fees, costs, and attorneys’ fees of any kind whatsoever arising directly or indirectly out of or in connection with: (i) your use or misuse of the Site, the Services or any information posted on the Site; (ii) your breach of the
Terms of Use or the
Privacy Policy; (iii) the content or subject matter of any information you provide to VivioMD , the Medical Groups, or any Provider or customer service agent; and/or (iv) any negligent or wrongful act or omission by you in your use or misuse of the Site, the Services, or any information on the Site, including without limitation, infringement of third party intellectual property rights, privacy rights, or negligent or wrongful conduct.
LIMITATION OF LIABILITY REGARDING USE OF THE SITEEXCEPT AS PROVIDED BY LAW, AND WITHOUT LIMITATION:
VivioMD AND ANY THIRD PARTIES MENTIONED ON THIS SITE ARE NEITHER RESPONSIBLE NOR LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE, OR OTHER DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM LOST PROFITS, LOST DATA, OR BUSINESS INTERRUPTION) ARISING OUT OF OR RELATING IN ANY WAY TO THE SITE, SITE-RELATED SERVICES, CONTENT OR INFORMATION CONTAINED WITHIN THE SITE, AND/OR ANY LINKED WEBSITE, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY AND WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOUR SOLE REMEDY FOR DISSATISFACTION WITH THE SITE, SITE-RELATED SERVICES, AND/OR LINKED WEBSITES IS TO STOP USING THE SITE AND/OR THOSE SERVICES. TO THE EXTENT ANY ASPECTS OF THE FOREGOING LIMITATIONS OF LIABILITY ARE NOT ENFORCEABLE, THE MAXIMUM LIABILITY OF VivioMD TO YOU WITH RESPECT TO YOUR USE OF THIS SITE IS $500 (FIVE HUNDRED DOLLARS). YOU HEREBY AGREE TO WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, ALL LAWS THAT LIMIT THE EFFICACY OF SUCH INDEMNIFICATIONS OR RELEASES.
ASSIGNMENTYou may not assign, transfer, or delegate the Terms of Use or any part thereof without VivioMD ’s prior written consent. VivioMD may freely transfer, assign, or delegate all or any part of the Terms of Use, and any rights or duties hereunder or thereunder. The Terms of Use will be binding upon and inure to the benefit of the heirs, successors, and permitted assignees of the parties.
FORCE MAJEUREWe will not be deemed to be in breach of these terms or liable for any breach of these Terms of Use or
Privacy Policy due to any event or occurrence beyond our reasonable control, including without limitation, acts of God, terrorism, war, invasion, failures of any public networks, electrical shortages, earthquakes or floods, civil disorder, strikes, fire or other disaster.
DISPUTE RESOLUTION; ARBITRATION AGREEMENTWe will try work in good faith to resolve any issue you have with Site, including Services ordered or purchased through the Site, if you bring that issue to the attention of our customer service department. Please contact us regarding such issues at info@viviomd.com However, we realize there may be rare cases where we may not be able to resolve an issue to a customer’s satisfaction.
You and VivioMD agree that any dispute, claim or controversy arising out of or relating in any way to these Terms of Use or your use of the Site, including Services ordered or purchased through the Site, shall be determined by binding arbitration instead of in courts of general jurisdiction. You agree that, by agreeing to these Terms of Use, the U.S. Federal Arbitration Act governs the interpretation and enforcement of this provision, and that you and VivioMD are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision shall survive termination of these Terms of Use and any other contractual relationship between you and VivioMD.
If you desire to assert a claim against VivioMD, and you therefore elect to seek arbitration, you must first send to VivioMD , by certified mail, a written notice of your claim (“Notice”). The Notice to VivioMD should be addressed to: Attn: VivioMD Group LLC, 16192 Coastal Highway, Lewes. Delaware 19958 (“Notice Address”). If VivioMD desires to assert a claim against you and therefore elects to seek arbitration, it will send, by certified mail, a written Notice to the most recent address we have on file or otherwise in our records for you. A Notice, whether sent by you or by VivioMD, must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”).
If VivioMD and you do not reach an agreement to resolve the claim within thirty (30) days after the Notice is received, you or VivioMD may commence an arbitration proceeding or file a claim in small claims court. During the arbitration, the amount of any settlement offer made by VivioMD or you shall not be disclosed to the arbitrator. You may download or copy a form Notice and a form to initiate arbitration from the American Arbitration Association at
http://www.adr.org. If you are required to pay a filing fee, after VivioMD receives notice at the Notice Address that you have commenced arbitration, it will promptly reimburse you for your payment of the filing fee, unless your claim is for more than U.S. $10,000.
The arbitration will be governed by the laws of the state of Delaware the Commercial Arbitration Rules, and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms of Use, and will be administered by the AAA. The AAA Rules and Forms are available online at
http://www.adr.org, by calling the AAA at 1-800-778-7879, or by requesting them from us by writing to us at the Notice Address. The arbitrator is bound by the terms of these Terms of Use. All issues are for the arbitrator to decide, including issues relating to the scope and enforceability of these Terms of Use, including this arbitration agreement. Unless VivioMD and you agree otherwise, any arbitration hearings will take place in Delaware. If your claim is for U.S. $10,000 or less, we agree you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds U.S. $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. If the arbitrator issues you an award that is greater than the value of VivioMD ’s last written settlement offer made before an arbitrator was selected (or if VivioMD did not make a settlement offer before an arbitrator was selected), then VivioMD will pay you the amount of the award or U.S. $1,000, whichever amount is greater. Except as expressly set forth herein, the payment of all filing, administration, and arbitrator fees will be governed by the AAA Rules. Each party shall pay for its own costs and attorneys’ fees, if any. However, if any party prevails on a statutory claim that affords the prevailing party attorneys’ fees, or if there is a written agreement providing for payment or recovery attorneys’ fees, the arbitrator may award reasonable fees to the prevailing party, under the standards for fee shifting provided by law.
YOU AND VivioMD 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 VivioMD agree otherwise, the arbitrator may not consolidate more than one person’s claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim.
If this Agreement to Arbitrate provision is found to be unenforceable, then: (a) the entirety of this arbitration provision shall be null and void, but the remaining provisions of these Terms of Use shall remain in full force and effect; and (b) exclusive jurisdiction and venue for any claims will be in state or federal courts located in Delaware.
MISCELLANEOUS TERMSIn the event any of the Terms of Use are held by a court or other tribunal of competent jurisdiction to be unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that these Terms of Use shall otherwise remain in full force and effect. These Terms of Use constitute the entire agreement between VivioMD and you pertaining to the subject matter hereof. From time to time, and in its sole discretion, VivioMD may revise these Terms of Use by updating this posting. You should, therefore, periodically visit this page to review the current Terms of Use, so you are aware of any such revisions to which you are bound. Certain provisions of these Terms of Use may be superseded by expressly designated legal notices or terms located on particular pages within this Site.
HOW TO CONTACT USVivioMD Group LLC
16192 Coastal HighwayLewes, DE 19958
(929) 822-5201
info@viviomd.com
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