Vitally Terms of Service

1. Introduction

Welcome to Vitally!

The services offered on our website, vitally.io (the “Site”) are owned and operated by Vitally, Inc. (the “Company” or “Vitally”). Please read this Agreement of Service (this “Agreement”) and our Privacy Policy available at vitally.io/legal/privacy carefully because they govern your use of the Services.

By using our Services, you agree to be bound by this Agreement. If you don’t agree to be bound by this Agreement, do not use the Services. If you are accessing and using the Services on behalf of a company (such as your employer) or other legal entity, you represent and warrant that you have the authority to bind that entity to this Agreement. In that case, “you” and “your” will refer to that entity. We may update this Agreement from time to time. When we update this Agreement, we’ll let you know by posting the updated Agreement on the Site and/or may also send other communications. It’s important that you review this Agreement whenever we update it, or you use the Services. Your continued use of or access to the Services following the posting of any changes constitutes acceptance of those changes. If you don’t agree to be bound by the changes, you may not use the Services anymore.

Any rights not expressly granted herein are reserved by Vitally.

2. Definitions

Throughout this Agreement, we may use certain words or phrases, and it is important that you understand the meaning of them. The list is not all-encompassing, and no definition should be considered binding to the point that it renders this Agreement nonsensical:

“Services” refers to the services that we provide through our Site and any component of the Site.

“User” refers but is not limited to customers, browsers, vendors, and/or merchants of our Site and, without limiting the generality of the foregoing, includes general visitors to our Site.

“You” refers to you, the person who is entering into this Agreement with Vitally.

3. Feedback

We appreciate feedback, comments, ideas, proposals, and suggestions for improvements to the Services (“Feedback”). If you choose to submit Feedback, you agree that we are free to use it without any restriction or compensation to you.

4. Eligibility, Errors, Inaccuracies, and Links to Third Party Websites or Resources

Vitally makes every effort to provide complete, accurate, and up-to-date information on our Site. Unfortunately, it is not possible to ensure that any website is completely free of human or technological errors. Occasionally, our Services may contain typographical mistakes, inaccuracies, or omissions, some of which may relate to pricing and availability, and some information may not be complete or current. Were serve the right to correct any errors, inaccuracies, or omissions—including after an order has been submitted—and to change or update information at any time without prior notice.

We assume no obligation to update, amend, or clarify information in the Service or on any related website, including without limitation, pricing information, except as required by law. No specified update or refresh date applied in the Service or on any related website, should be taken to indicate that all information in the Service or on any related website has been modified or updated.

The Services may allow you to access third-party websites or other resources. We provide access only as a convenience and are not responsible for the content, products, or services on or available from those resources or links displayed on such websites. You acknowledge sole responsibility for and assume all risk arising from, your use of any third-party resources.

5. Modifications to the Service and Prices

Availability and prices for our Service are subject to change. We reserve the right at any time to modify or discontinue the Service (or any part or content thereof) without notice at any time. We will not be liable to you or to any third-party for any modification, price change, suspension, or discontinuance of the Service, except as provided for in this Section.

6. Acceptable Use Policy

In order to use our Service, you must meet a number of conditions, including but not limited to:

• You must not be in violation of any embargoes, export controls, or other laws of the United States or other countries having jurisdiction over this Agreement, Vitally, and yourself. For example, if the Office of Foreign Assets Control prohibits conducting financial transactions with nationals, residents, or banks of your country, you must not use our Service.
• You must be 18 years or older and capable of forming a binding contract with Vitally, and not otherwise barred from using the Services under applicable law.
• You must not sign up or use the Services on behalf of a natural person other than yourself.
• You must provide us with personal information, payment information, and other information that we deem necessary to provide you with our Service.
• For certain features of the Services you’ll need an account. To protect your account, keep the account details and password confidential, and notify us right away of any unauthorized use. You’re responsible for all activities that occur under your account.

You may not use our products for any unlawful purpose, nor may you, in the use of the Service, violate any such laws (including but not limited to copyright laws). In addition, you must not:

• Use the Service for any unlawful purpose;
• Use the Service to solicit others to perform or participate in any unlawful acts;
• Use the Service to violate any international, federal, provincial, or state regulations, rules, laws, or local ordinances;
• Use the Service to infringe upon or violate our intellectual property rights or the intellectual property rights or rights of publicity or privacy of others;
• Use the Service to harass, abuse, insult, harm, defame, slander, disparage, intimidate, or discriminate based on gender, sexual orientation, religion, ethnicity, race, age, national origin, or disability;
• Use the Service to submit false or misleading information;
• Interfere with, or attempt to interfere with, the access of any User, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Services;
• Use the Service to collect or track the personal information of others without their express permission;
• Attempt to access or search the Services or download content from the Services using any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by Vitally or other generally available third-party web browsers;
• Use the Service for any obscene or immoral purpose;
• Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Vitally or any of Vitally’s providers or any other third party (including another User) to protect the Services;
• Access, tamper with, or use non-public areas of the Services, Vitally’s computer systems, or the technical delivery systems of Vitally’s providers;
• Attempt to probe, scan or test the vulnerability of any Vitally system or network or breach any security or authentication measures; or
• Encourage or enable any other individual to do any of the foregoing.

Vitally is not obligated to monitor access to or use of the Services or to review or edit any content. However, we have the right to do so for the purpose of operating the Services, to ensure compliance with thisAgreement and to comply with applicable law or other legal requirements. We reserve the right to terminate your use of the Services for violating any of the prohibited uses. We may also consult and cooperate with law enforcement authorities to prosecute Users who violate the law.

7. License Restrictions

You agree that by using our Service, you are receiving a license to use one copy of our web-based software(commonly referred to as “software as a service” or “SaaS”) in compliance with this Agreement, applicable laws, and any additional terms located on our Service which are hereby incorporated into this Agreement by reference. You must not attempt to decipher, decompile, disassemble, or reverse engineer, redistribute, or resell, or otherwise copy or manipulate our Service. You must not download the media created by otherUsers on our Site, even if it is for your own private use.

Vitally may revoke its license to you at any time for any reason without notice or explanation, and we will not, in any event, be liable to you for any losses suffered as a result of any unanticipated cancellation of our Service. We will generally attempt to notify you prior to cancelling your access to our Service unless you have breached this Agreement or any applicable law, though we are not obligated to do so.

8. Server Downtime

Our Service may become unavailable from time to time for security reasons, legal reasons, technical updates, or other reasons. While we will inform you of such downtime as soon as possible, you agree to release us from all liability relating to the unavailability of our Service.

9. Our Copyright

Vitally relies on the uniqueness of its Site and content to distinguish itself from third party competitors.You agree not to copy, distribute, display, disseminate, or otherwise reproduce any of the information on the Site, including content licensed to the Company by third parties, without receiving our prior written permission.

All right, title and interest in and to the materials provided on this Site, including but not limited to information, documents, logos, graphics, sounds, and images are owned or licensed either by Vitally or by the respective partners of Vitally.

10. Your Content

(a) Posting Content. Our Services may allow you to store content such as text (in posts or communications with others), files, documents, graphics, images, music, software, audio, and video. Anything (other than Feedback) that you post or otherwise make available through the Services is referred to as “User Content”. Vitally does not claim any ownership rights in any User Content and nothing in this Agreement will be deemed to restrict any rights that you may have to your User Content.

(b) Permissions to Your User Content. By making any User Content available through theServices you hereby grant to Vitally a non-exclusive, transferable, worldwide, royalty-free license, with the right to sublicense, to use, copy, modify, create derivative works based upon, distribute, publicly display, and publicly perform your User Content in connection with operating and providing the Services.

(c) Your Responsibility for User Content. You are solely responsible for all your User Content. You represent and warrant that you have (and will have) all rights that are necessary to grant us the license rights in your User Content under this Agreement. You represent and warrant that neither your UserContent, nor your use and provision of your User Content to be made available through the Services, nor any use of your User Content by Vitally on or through the Services will infringe, misappropriate or violate a third party’s intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.

(d) Removal of User Content. You can remove your User Content by specifically deleting it. You should know that in certain instances, some of your User Content (such as posts or comments you make) may not be completely removed and copies of your User Content may continue to exist on the Services. To the maximum extent permitted by law, we are not responsible or liable for the removal or deletion of (or the failure to remove or delete) any of your User Content.

11. Your Personal Information

Please review our Privacy Policy, which also governs your use of the Services, for information on how we collect, use and share your information.

12. Trademarks

Vitally and vitally.io are trademarks used by Vitally to uniquely identify our Site, Service, and business. You agree not to use this phrase anywhere without our prior written consent. Additionally, you agree not to use our trade dress, or copy the look and feel of our Site or its design, without our prior written consent. You agree that this paragraph goes beyond the governing law on intellectual property law and includes prohibitions on any competition that violates the provisions of this paragraph, including starting your own service, whether or not it competes directly or indirectly with Vitally.

13. Copyright Policy

Vitally respects copyright law and expects its users to do the same. Please contact us at legal@vitally.io if you see suspected copyright infringement on our Services.

14. Representations & Warranties

UNLESS CERTAIN LEVELS OF PERFORMANCE OR AVAILABILITY HAVE BEEN AGREED TO IN A SERVICE LEVEL AGREEMENT, THE SERVICES ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, WE EXPLICITLY DISCLAIM ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY
PARTICULAR PURPOSE, QUIET ENJOYMENT AND NON-INFRINGMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. We make no warranty that the Services will meet your requirements or be available on an uninterrupted, secure, or error-free basis. We make no warranty regarding the quality, accuracy, timeliness, truthfulness, completeness or reliability of any information or content on the Services.

15. Indemnity

You will indemnify and hold us and our officers, directors, employees and agents harmless from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable legal and accounting fees arising out of or in any way connected with this with (a) your access to or use of the Services, (b) your User Content, or (c) your violation of this Agreement. You also agree that you have a duty to defend us against such claims and we may require you to pay for an attorney(s) of our choice in such cases.

16. Limitation of Liability

(a) TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER VITALLY NOR ITS SERVICE PROVIDERS INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICES WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOST PROFITS, LOST REVENUES, LOST SAVINGS, LOST BUSINESS OPPORTUNITY, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR FROM THE USE OF OR INABILITY TO USE THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT VITALLY OR ITS SERVICE PROVIDERS
HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

(b) TO THE MAXIMUM EXTENT PERMITTED BY THE LAW OF THE APPLICABLE JURISDICTION, IN NO EVENT WILL VITALLY’S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR FROM THE USE OF OR INABILITY TO USE THE SERVICES EXCEED THE AMOUNTS YOU HAVE PAID OR ARE PAYABLE BY YOU TO VITALLY FOR USE OF THE SERVICES OR ONE HUNDRED DOLLARS ($100), IF YOU HAVE NOT HAD ANY PAYMENT OBLIGATIONS TO VITALLY, AS APPLICABLE.

(c) THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN VITALLY AND YOU.

17. Governing Law and Forum Choice

(a) The laws of the State of New York, excluding its conflicts of law rules, will govern this Agreement, the performance of it, and all matters arising out of, concerning, or relating thereto. Except as provided in Section 17(b), any dispute that arises out of, relates to, or concerns this Agreement (a “Dispute”) will be resolved by arbitration administered by the American Arbitration Association under its commercial arbitration rules (except that discovery will be permitted in accordance with the Federal Rules of Civil Procedure), and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. All arbitration hearings will be conducted in New York, New York in the English language. Any other legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in the New York, New York and the parties irrevocably consent to the personal jurisdiction and venue therein. If any action is necessary to enforce the terms of this Agreement, the prevailing party will be entitled to reasonable attorneys’ fees, costs and expenses in addition to any other relief to which such prevailing party may be entitled.

(b) We both may seek to resolve a Dispute in small claims court if it qualifies, and we each retain the right to seek injunctive or other equitable relief from a court to prevent (or enjoin) the infringement or misappropriation of our intellectual property rights.

18. Force Majeure

You agree that we are not responsible to you for anything that we may otherwise be responsible for, if it is the result of events beyond our control, including, but not limited to, acts of God, war, insurrection, riots, terrorism, crime, labor shortages (including lawful and unlawful strikes), embargoes, postal disruption, communication disruption, unavailability of payment processors, failure or shortage of infrastructure, shortage of materials, or any other event beyond our control.

19. Severability

In the event that a provision of this Agreement is found to be unlawful, conflicting with another provision of the Agreement, or otherwise unenforceable, the Agreement will remain in force as though it had been entered into without that unenforceable provision being included in it.

If two or more provisions of this Agreement are deemed to conflict with each other’s operation, Vitally will have the sole right to elect which provision remains in force.

20. Non-Waiver

Vitally reserves all rights afforded to us under this Agreement as well as under the provisions of any applicable law. Our non-enforcement of any particular provision or provisions of this Agreement or any applicable law should not be construed as our waiver of the right to enforce that same provision under the same or different circumstances at any time in the future.

21. Termination & Cancellation

We may suspend or terminate your access to and use of our Site and Service at our discretion without explanation, though we will strive to provide a timely explanation in most cases. Our liability for refunding you, if you have paid anything to us, will be limited to the amount you paid for goods or services which have not yet been and will not be delivered, except in cases where the termination or cancellation was due to your breach of this Agreement, in which case you agree that we are not required to provide any refund or other compensation whatsoever.

Under no circumstances, including termination or cancellation of our Service to you, will we be liable for any losses related to actions of other Users. Upon any termination, discontinuation or cancellation of the Services or your account, the following Sections will survive: 3, 6, 7, 9, 10(b), 10(c), 12 and 14 through 25.

22. Assignment of Rights

You may not assign your rights and/or obligations under this Agreement to any other party without our prior written consent. We may assign our rights and/or obligations under this Agreement to any other party at our discretion.

23. Notices

Any notices or other communications provided by Vitally under this Agreement will be given: (i) via email; or (ii) by posting to the Services. For notices made by email, the date of receipt will be deemed the date on which such notice is transmitted.

24. Entire Agreement

This Agreement constitutes the entire and exclusive understanding and agreement between Vitally and you regarding the Services, and this Agreement supersedes and replaces all prior oral or written understandings or agreements between Vitally and you regarding the Services.

25. Reservation of Rights

Vitally and its licensors exclusively own all right, title and interest in and to the Services, including all associated intellectual property rights. You acknowledge that the Services are protected by copyright, trademark, and other laws of the United States and foreign countries. You agree not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services.

26. Google API Usage

Vitally’s use and transfer to any other app of information received from Google APIs will adhere to Google API Services User Data Policy, including the Limited Use requirements. The Google API Services User Data Policy is available at developers.google.com/terms/api-services-user-data-policy.

27. Corporate Information

Vitally, Inc. is a corporation formed lawfully in the state of Delaware. If you have any questions about this
Agreement or the Services, please contact Vitally at:

Vitally

attn. Jamie Davidson

109 South 5th Street

Suite 4113

Brooklyn, NY 11249

legal@vitally.io