Valera Health Terms and Conditions of Use
Last Updated: November 15, 2015
The terms and conditions provided below (the “Terms”) are applicable to the websites, mobile applications, online services and all other interactive features, services, and communications (individually, a “Site and collectively, the “Sites”), however accessed and/or used, that are operated, made available or produced and maintained by Ethosmart Health, LLC d/b/a Valera Health (“Valera Health,” “we” and “us”), unless otherwise indicated by a specific Site.
This is a legal agreement between you (“you” or “user”) and Valera Health that states the material terms and conditions that govern your use of the Sites. This agreement, together with all updates, supplements, additional terms, and all of Valera Health’s policies collectively constitute this “Agreement” between you and Valera Health. In addition to the Content on the Sites, the Sites may provide you with various opportunities to submit content, activity information and participate in various research, monitoring and testing activities (“Services”). Additional terms and conditions or other legal notice requirements may apply to the Services, such as any applicable consent agreements for use of medical data in research studies or Valera Health’s Business Associate Agreement for health care providers. In the event of a conflict between these Terms and another agreement between you and Valera Health, the terms of the other agreement will control.
No Medical Advice
INFORMATION PROVIDED ON THE SITES ABOUT TESTS, CONDITIONS, DIAGNOSES, TREATMENTS, OR ANY OTHER INFORMATION IS NOT MEDICAL ADVICE. THE SITES DO NOT PROVIDE MEDICAL OR DIAGNOSTIC SERVICES OR PRESCRIBE MEDICATION. INFORMATION PROVIDED DOES NOT CONSTITUTE A DIAGNOSIS, TREATMENT, OR PROTOCOL FOR ANY DISEASE OR CONDITION.
DO NOT USE THE SITES OR SERVICES FOR EMERGENCY MEDICAL NEEDS. IF YOU ARE EXPERIENCING A MEDICAL EMERGENCY, INCLUDING THOUGHTS OF HARM TO YOURSELF OR OTHERS, PLEASE IMMEDIATELY CONTACT 911 OR A CRISIS HOTLINE.
Not a Substitute for Professional Judgment
USE OF THE SITES OR SERVICES IS NOT A SUBSTITUTE FOR THE PROFESSIONAL JUDGMENT OF HEALTH CARE PROFESSIONALS IN DIAGNOSING AND TREATING PATIENTS. YOU ACKNOWLEDGE AND AGREE THAT INFORMATION PROVIDED VIA THE SITES OR SERVICES MAY BE INACCURATE THOUGH NO FAULT OF VALERA HEALTH. YOU ASSUME ALL RISKS ASSOCIATED WITH YOUR USE OF THE SITES AND SERVICES. VALERA HEALTH IS NOT RESPONSIBLE FOR INFORMATION THAT IS PROVIDED BY HEALTH CARE PROFESSIONALS THROUGH THE USE OF THE SITES OR SERVICES.
You agree that information obtained by Valera Health in conjunction with your use of the Sites or Services may be used by Valera Health for related research purposes, including publication of findings regarding the Sites’ functionality.
Download of Sites
Some of Valera Health’s Sites may be obtained via download through either the Apple iTunes App Store (“iTunes”) or the Google Play Store (“Google Play”), depending on the nature and compatibility of the devices from which you will use or access the Sites and Services. This paragraph applies to any application version of the Sites that you acquire from the iTunes or Google Play. You are solely responsible for ensuring that your devices are compatible with the iTunes or Google Play.
This Agreement is entered into between you and Valera Health. Apple, Inc. (“Apple”) and Google, Inc. (“Google”) (collectively, the “download service providers”) are not parties to this Agreement and shall have no obligations with respect to the Sites. Valera Health, not Apple or Google, is solely responsible for the Sites, including any maintenance and support, and the content thereof as set forth hereunder. However, the download service providers, along with their respective subsidiaries, are third-party beneficiaries of this Agreement. Upon your acceptance of this Agreement, the download service provider used to obtain the Sites shall have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third-party beneficiary. If our Sites fail to conform to any applicable warranty, you may notify the download service provider used to obtain the Sites and they will refund the purchase price (if any) of the Sites in accordance with their policies, and, to the maximum extent permitted by applicable law, the download service provider used to obtain the Sites will have no other warranty obligation whatsoever with respect to the application and, as between the download service provider used to obtain the Sites and Valera Health, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to confirm to any warranty is Valera Health’s responsibility. We both acknowledge that Valera Health, not the download service provider used to obtain the Sites, is responsible for addressing any end-user or third-party claims related to the Sites, including, but not limited to: (a) product liability claims, (b) any claim that the Sites fail to conform to any applicable legal or regulatory requirement, and (c) claims arising under consumer protection or similar law. Further, we both acknowledge that, in the event of any third-party claim that the Sites or your possession or use of the Sites infringes on that third party’s intellectual property rights, as between Valera Health and the download service provider used to obtain the Sites, Valera Health will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim. You represent and warrant that you are not located in a country that is subject to a US Government embargo, or that has been designated by the US Government as a “terrorist supporting” country, and you are not listed on any US Government list of prohibited or restricted parties.
You agree not to reproduce, publish, or distribute data or content in connection with the Sites that infringes any third party’s trademark, copyright, patent, trade secret, publicity, privacy, or other personal or proprietary right.
You agree not to copy or distribute in any medium any part of the Sites without Valera Health’s prior written authorization. You agree not to alter or modify, or attempt to alter or modify, any part of the Sites, including any of Valera Health’s related technologies, or create derivative works or other products or services based upon the Sites.
You agree not to use any robot, spider, scraper or other automated means to access the Sites for any purpose without our express written permission. You agree not to: (i) take any action that imposes or may impose, in our sole discretion, an unreasonable or disproportionately large load on our infrastructure; (ii) interfere or attempt to interfere with the proper working of the Sites or engage in any activity that disrupts, diminishes the quality of, interferes with the performance of, or impairs the functionality of, the Sites, or (iii) bypass, circumvent, disable or otherwise interfere with any measures we may use to prevent or restrict access to the Sites. Any unauthorized use of our computer systems is a violation of these Terms.
You acknowledge that your activities using the Sites may be tracked and are subject to audit.
You agree not to use the Sites in any way for unlawful purposes or that constitutes or encourages any unlawful activities or to take any action that would render the operation or use of the Sites by Valera Health or any other user unlawful.
Accounts, Passwords and Security
In order to access some features of the Sites, including the Services, you will have to register as a user and create an account with Valera Health. You may never use another’s account without permission. When creating your account, you must provide accurate and complete information, and you must maintain and promptly update your account information to keep it accurate, current and complete. You are solely responsible for the activity that occurs on your account, and you must keep your account password secure. You must notify Valera Health immediately of any breach of security or unauthorized use of your account. Although Valera Health will not be liable for your losses caused by any unauthorized use of your account, you may be liable for the losses of Valera Health or others due to such unauthorized use.
Accuracy of Information
We attempt to ensure that information on the Sites is complete, accurate and current. We may make changes to information on the Sites, including but not limited to the availability of any information, without notice. Despite our efforts, the information on the Sites may occasionally be inaccurate, incomplete or out of date. We make no representation as to the completeness, accuracy or currency of any information on the Sites. For example, data included on the Sites based in part on the information provided by a patient depends on the accuracy or truthfulness of the patient’s inputs. Additionally, malfunctions with or inaccuracies in the data collected by the accelerometer in the patient’s mobile device on which the Sites are installed may affect the accuracy of data available on the Sites.
We reserve the right to change, suspend or discontinue any aspect of the Sites at any time, without notice and at our sole discretion. We will not be liable to you or to any third party for any modification, suspension or discontinuance of the Sites or any portion thereof.
We are not responsible for maintaining any data for you or for any lost data resulting from the use, operation or discontinuation of any aspect of the Sites. Unless otherwise expressly agreed in writing, you are solely responsible for maintaining records of any information generated or stored through the use of the Sites.
Valera Health offers no assurance that the use of Valera Health’s Sites under these Terms will ensure your compliance with any applicable laws. You will be solely responsible for ensuring that your use of the Sites complies with all applicable laws. You shall be solely responsible for your use of the Sites and any use of your user credentials.
Copyright, Trademark, Ownership
All of the content displayed on the Sites, including without limitation text, graphics, photographs, images, moving images, sound, and illustrations (“Content”), is owned by Valera Health, its licensors, agents or its Content providers. All elements of the Sites, including, without limitation, the Sites’ general design, Valera Health’s trademarks, service marks, trade names (including Valera Health’s name, logos, the Sites’ name(s), and the Sites’ design), and other Content, are protected by trade dress, copyright, moral rights, trademark and other laws relating to intellectual property rights. The Sites may only be used for the intended purpose for which it is being made available. Except as may be otherwise indicated on the Sites, you are authorized to view, print and download documents, audio and video found on our Sites for personal, informational, and non-commercial purposes only. You may not use, copy, reproduce, republish, upload, post, transmit, distribute, or modify the Content or Valera Health’s trademarks in any way, including in advertising or publicity pertaining to distribution of materials on the Sites, without Valera Health’s prior written consent. The use of Valera Health’s trademarks on any other Sites is not allowed. Valera Health prohibits the use of Valera Health’s trademarks as a “hot” link on or to any other site unless establishment of such a link is approved in advance. The Site, its Content and all related rights shall remain the exclusive property of Valera Health or its licensors unless otherwise expressly agreed. You will not remove any copyright, trademark or other proprietary notices from material found on the Sites.
Running or displaying the Sites or any information or material displayed on the Sites in frames or through similar means on another site without our prior written permission is prohibited.
Disclaimers; Limitation on Liability
Your use of THE SITES is at your OWN risk. THE INFORMATION, MATERIALS, PRODUCTS AND SERVICES PROVIDED ON, THROUGH, OR IN CONNECTION WITH THE SITES OR SERVICES OR OTHERWISE PROVIDED BY US ARE PROVIDED “AS IS” WITHOUT ANY WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SECURITY, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY, FREEDOM FROM COMPUTER VIRUS, OR WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, WE HEREBY DISCLAIM ALL WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE SITES AND ANY PRODUCTS AND SERVICES LISTED OR DESCRIBED ON THE SITES. WE DO NOT REPRESENT OR WARRANT THAT THE SITES OR ANY INFORMATION OR PRODUCTS OR SERVICES WE PROVIDE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SITES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. WE DO NOT MAKE ANY WARRANTIES OR REPRESENTATIONS REGARDING THE COMPLETENESS, CORRECTNESS, ACCURACY, ADEQUACY, USEFULNESS, TIMELINESS OR RELIABILITY OF THE SITES OR ANY INFORMATION OR PRODUCTS OR SERVICES WE PROVIDE, OR ANY OTHER WARRANTY. THE INFORMATION, MATERIALS, PRODUCTS AND SERVICES PROVIDED ON OR THROUGH THE SITES MAY BE OUT OF DATE, AND NEITHER VALERA HEALTH NOR ANY OF ITS AFFILIATES MAKES ANY COMMITMENT OR ASSUMES ANY DUTY TO UPDATE SUCH INFORMATION, MATERIALS, PRODUCTS OR SERVICES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WE HEREBY EXPRESSLY DISCLAIM ALL LIABILITY FOR PRODUCT DEFECT OR FAILURE, INCLUDING TESTING AND TEST RESULT DEFECTS AND FAILURES, CLAIMS THAT ARE DUE TO NORMAL WEAR, PRODUCT MISUSE, ABUSE, PRODUCT MODIFICATION, IMPROPER PRODUCT SELECTION, NON-COMPLIANCE WITH ANY CODES, OR MISAPPROPRIATION. WE MAKE NO WARRANTIES TO THOSE DEFINED AS “CONSUMERS” IN THE MAGNUSON-MOSS WARRANTY-FEDERAL TRADE COMMISSION IMPROVEMENTS ACT. THE FOREGOING EXCLUSIONS OF IMPLIED WARRANTIES DO NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
THE INFORMATION PRESENTED ON THE SITES DOES NOT GUARANTEE ANY INSURANCE, INCENTIVE, OR OTHER BENEFITS WILL BE PAID.
NO ADVICE OR INFORMATION, UNLESS MADE AS PART OF ANOTHER BINDING AGREEMENT THAT SUPERCEDES THE TERMS OF THIS AGREEMENT, OBTAINED FROM VALERA HEALTH OR VALERA HEALTH’S SITE OR SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
VALERA HEALTH does not assume any responsibility FOR and will NOT be liable, for any damage to or any virus that may infect your computer, equipment, or other property caused by or arising from your access to, use of, or browsing thE SITES, or your downloading of OR ACCESSING any materials from thE SITES. IN NO EVENT WILL VALERA HEALTH, OR ANY OF ITS OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AFFILIATES, AGENTS, SUCCESSORS OR ASSIGNS, NOR ANY PARTY INVOLVED IN THE CREATION, PRODUCTION OR TRANSMISSION OF THE SITES, BE LIABLE TO YOU OR ANYONE ELSE FOR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM LOST PROFITS, LOST DATA OR BUSINESS INTERRUPTION) ARISING OUT OF THE USE, INABILITY TO USE, OR THE RESULTS OF USE OF THE SITES, ANY SITES LINKED TO THE SITES, OR THE MATERIALS, INFORMATION, PRODUCTS OR SERVICES CONTAINED ON OR PROVIDED IN CONNECTION WITH THE SITES OR SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT OR ANY OTHER LEGAL THEORY AND WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATIONS OF LIABILITY DO NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
IN THE EVENT OF ANY PROBLEM WITH THE SITES OR THE SERVICES, YOU AGREE THAT YOUR SOLE REMEDY IS TO CEASE USING THE SITES OR SERVICES.
Valera Health is not responsible for damages, delays, or failures in performance resulting from acts or occurrences beyond its reasonable control, including, without limitation: fire, lightning, explosion, power surge or failure, water, acts of God, war, revolution, civil commotion or acts of civil or military authorities or public enemies: any law, order, regulation, ordinance, or requirement of any government or legal body or any representative of any such government or legal body; or labor unrest, including without limitation, strikes, slowdowns, picketing, or boycotts; inability to secure raw materials, transportation facilities, fuel or energy shortages, or acts or omissions of other common carriers.
You agree to defend, indemnify and hold Valera Health, any parent companies, subsidiaries and affiliates and the successors of each of the foregoing, and the officers, directors, agents, and employees of each of the foregoing, harmless from any and all claims, actions, proceedings, losses, liabilities, damages, obligations, costs, debt, and expenses (including attorney’s fees, litigation expenses and settlement amounts) arising from or related to (i) your use of, or inability to use, the Sites or Services; (ii) your violation of any term or condition of these Terms, including without limitation, your breach of any of the representations and warranties; (iii) your violation of any third-party rights, including without limitation any right of privacy, publicity rights or intellectual property rights; (iv) your violation of any law, rule or regulation of the United States or any other country; (v) any claim or damages that arise as a result of any information or material that you provide to Valera Health; or (vi) any negligence or willful misconduct by you.
In the event that you have a dispute with another user or other party related to the Sites or Services, you release Valera Health (and our officers, directors, agents, subsidiaries, joint ventures and employees) from all claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes.
Valera Health may suspend or terminate your use of the Sites or Services at any time, for any reason or for no reason, without notice. We may also block your access to our Sites and Services in the event that (a) you breach these Terms; (b) we are unable to verify or authenticate any information you provide to us; (c) we believe that your actions may cause financial loss or legal liability for you, our users or us. We also reserve the right to terminate or deactivate accounts that are inactive for an extended period of time.
Valera Health reserves the right to change, suspend or discontinue any aspect of the Sites or Services at any time, without notice and at its sole discretion. Valera Health will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Sites or Service, or any portion thereof.
Upon any such termination, your rights to access and use the Sites and Services shall automatically terminate and Valera Health will have no obligation to display, store or otherwise maintain for you any test results or other information provided through the Sites and Services.
Representations and Warranties
You affirm, represent and warrant the following: (i) you are old enough in your location to enter into a binding contract with Valera Health and have the capacity, right and authority to enter into this Agreement, and are fully able and competent to satisfy the terms, conditions and obligations herein; (ii) if necessary you have obtained all authorizations and consents of each and every individual who is the subject matter of testing, patient care, or other Services offered through the Sites; (iii) you have read, understood, agree with, and will abide by these Terms; (iv) Valera Health’s or your use of any information submitted through the Sites or Services, or use of any information provided through Valera Health’s services or products will not infringe any rights of any third party, including but not limited to any intellectual property rights, privacy rights and rights of publicity and will not constitute, in whole or in part, any other act or omission that could give rise to civil and/or criminal liability.
You represent and warrant that (a) you have full power and authority to enter into and perform this Agreement; (b) the execution and delivery of this Agreement has been duly authorized by you; and (c) these Terms are valid and binding obligations of you, enforceable against you in accordance with its provisions.
These Terms will be governed by and construed in accordance with the laws of the state of New York (without regard to the principles thereof relating to conflicts of laws). Any action or proceeding arising out of or relating to these Terms shall be commenced and litigated to conclusion solely in the state or federal courts located in New York County, New York, and such courts shall have exclusive jurisdiction and venue over such action. Any and all disputes directly or indirectly arising out of or related to the Terms or the Sites or Services will be resolved individually, without resort to any form of class actions. Any and all claims, judgments and awards will be limited to actual out-of-pocket costs incurred, and in no event shall you be entitled to recovery of attorney’s fees. Under no circumstances will any claimant be permitted to obtain any award for, and you hereby waive all rights to claim punitive, special, incidental or consequential damages and any and all rights to have damages multiplied or otherwise increased and any other damages, other than for actual out-of-pocket expenses. Any cause of action or claim you may have directly or indirectly arising out of or related to the Terms or the Sites or Services must be commenced within one (1) year after the claim or cause of action arises. A printed version of these Terms will be admissible in judicial and administrative proceedings based upon or relating to these Terms to the same extent as other business documents originally generated and maintained in printed form. You shall comply with all applicable domestic and international laws, statutes, ordinances and regulations regarding your use of the Sites or Services.
If any provision of these Terms is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced. You agree that these Terms and all incorporated agreements may be assigned by Valera Health in our sole discretion, including upon any future sale of Ethosmart Health, LLC or any of its assets, in whole or in part, to another entity. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section. Whenever used in these Terms, unless otherwise specified the terms “includes”, “including”, “e.g.”, “for example”, “such as”, “for instance” and other similar terms are deemed to include the term “without limitation” immediately thereafter. In resolving any dispute or construing any provision hereunder, there will be no presumptions made or inferences drawn because one of the parties (or its representatives) drafted these Terms; and each party hereby waives application of, or any rights under, any law that would require the interpretation of any ambiguities in these Terms against the party that drafted it. Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches. These Terms are the entire agreement between you and Valera Health with respects to the subject matter hereof and supersede any prior understandings or agreements (written or oral). Any provision that must survive in order to give proper effect to its intent (e.g., indemnity, general, limitations on liability, disclaimers, representations and warranties, etc.) shall survive the expiration or termination of these Terms. Except as expressly stated herein, nothing in these Terms shall be deemed to confer any third-party rights or benefits.
All rights not granted herein are expressly reserved to Ethosmart Health, LLC d/b/a Valera Health.