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Terms & Conditions

Last Updated: August 3, 2023

Welcome, and thank you for your interest in Vital Software Inc. (“Vital Software,” “we,” or “us”) and our website at vital.io, along with our related websites, hosted applications, and other services provided by us (collectively, the “Service”). These Terms & Conditions are a legally binding contract between you and Vital Software regarding your use of the Service.

PLEASE READ THE FOLLOWING TERMS CAREFULLY:

BY CLICKING “I ACCEPT” OR “GET STARTED,” SUBMITTING A QUERY, OR BY DOWNLOADING, INSTALLING, OR OTHERWISE ACCESSING OR USING THE SERVICE, YOU AGREE THAT YOU HAVE READ AND UNDERSTOOD, AND, AS A CONDITION TO YOUR USE OF THE SERVICE, YOU AGREE TO BE BOUND BY, THE FOLLOWING TERMS AND CONDITIONS, INCLUDING VITAL SOFTWARE’S PRIVACY POLICY AND COPYRIGHT POLICY (TOGETHER, THESE “TERMS”). IF YOU ARE NOT ELIGIBLE, OR DO NOT AGREE TO THE TERMS, THEN YOU DO NOT HAVE OUR PERMISSION TO USE THE SERVICE. YOUR USE OF THE SERVICE, AND VITAL SOFTWARE’S PROVISION OF THE SERVICE TO YOU, CONSTITUTES AN AGREEMENT BY VITAL SOFTWARE AND BY YOU TO BE BOUND BY THESE TERMS.

YOU AGREE TO RECEIVE TEXTS FROM OR ON BEHALF OF VITAL SOFTWARE AT THE PHONE NUMBER YOU PROVIDE TO US OR YOUR PROVIDER. THESE TEXTS WILL INCLUDE SINGLE SIGN ON LINKS TO SIGN INTO THE SERVICES AND INFORMATION ABOUT YOUR HEALTH CARE, INCLUDING PRIVATE HEALTH INFORMATION.

ARBITRATION NOTICE. Except for certain kinds of disputes described in Section 17 (Dispute Resolution and Arbitration), you agree that disputes arising under these Terms will be resolved by binding, individual arbitration, and BY ACCEPTING THESE TERMS, YOU AND VITAL SOFTWARE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING.

  1. Vital Software Service Overview. Vital Software provides AI-powered software solutions that help support physicians and their patients by providing real-time patient updates and messaging services, aftercare alerts and reminders, and a doctor-to-patient translation system that makes clinical notes easier to read by translating for example, terms like “cerebral infarction” into the more common language “stroke”.
  2. Eligibility. You must be at least 18 years old to use the Service. By agreeing to these Terms, you represent and warrant to us that: (a) you are at least 18 years old; (b) you have not previously been suspended or removed from the Service; and (c) your registration and your use of the Service is in compliance with any and all applicable laws and regulations. If you are an entity, organization, or company, the individual accepting these Terms on your behalf represents and warrants that they have authority to bind you to these Terms and you agree to be bound by these Terms.
  3. Artificial Intelligence Disclaimer. Vital Software uses artificial intelligence and machine learning to provide the Service. You acknowledge and agree that the AI technology used by Vital Software to provide the Services, including to make clinical notes more understandable, is experimental and the AI tools may provide Outputs (as defined below) that contain errors, omissions, or not accurately reflect the medical information contained in documents you submit to the Service. Your care team’s instructions are the ultimate source of truth. You should evaluate the accuracy of any Output as appropriate for your use case, including by using human review of the Output. Vital Software will not be liable for any mistakes, inaccuracies, omissions, or offensive material in the Outputs or any other content generated by the AI tools or your reliance on the Outputs.
  4. Registration. To access most features of the Service, you must provide some information about yourself, including your name and birthdate. Vital Software may request additional information from you, such as your email address, after you have used the Service a few times. You agree that the information you provide to us is accurate, complete, and not misleading.
  5. Licenses
    1. Limited License. Subject to your complete and ongoing compliance with these Terms, Vital Software grants you, solely for your personal, non-commercial use, a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to access and use the Service.
    2. License Restrictions. Except and solely to the extent such a restriction is impermissible under applicable law, you may not: (a) reproduce, distribute, publicly display, publicly perform, or create derivative works of the Service; (b) make modifications to the Service; or (c) interfere with or circumvent any feature of the Service, including any security or access control mechanism. If you are prohibited under applicable law from using the Service, then you may not use it.
    3. Feedback. We respect and appreciate the thoughts and comments from our users. If you choose to provide input and suggestions regarding existing functionalities, problems with or proposed modifications or improvements to the Service (“Feedback”), then you hereby grant Vital Software an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right and license to exploit the Feedback in any manner and for any purpose, including to improve the Service and create other products and services. We will have no obligation to provide you with attribution for any Feedback you provide to us.
    4. Surveys. Feedback may include your responses to surveys that we send you. Responses to surveys can be used anywhere, if deidentified. We need this right because sometimes your feedback regarding staff may be escalated to a manager. Other feedback, like what you wish you had known before going into a surgery, or what techniques helped you best recover post-surgery may be shared as “tips” for other patients. For example, we may share something that says “50-60 year old male from North Carolina, shoulder joint repair says: Surgery went smoothly with almost no scarring. I wish I had been more consistent with my rehab…” or “patients like you typically rate this procedure a 4/10 on the pain score” based on the Feedback you provide.
  6. Ownership; Proprietary Rights. The Service is owned and operated by Vital Software. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Service provided by Vital Software (“Materials”) are protected by intellectual property and other laws. All Materials included in the Service are the property of Vital Software or its third-party licensors. Except as expressly authorized by Vital Software, you may not make use of the Materials. There are no implied licenses in these Terms and Vital Software reserves all rights to the Materials not granted expressly in these Terms.
  7. Third-Party Terms
    1. Third-Party Services and Linked Websites. Vital Software may provide tools through the Service that enable you to export information, including User Content, to third-party services. By using one of these tools, you hereby authorize that Vital Software to transfer that information to the applicable third-party service. Third-party services are not under Vital Software’s control, and, to the fullest extent permitted by law, Vital Software is not responsible for any third-party service’s use of your exported information. The Service may also contain links to third-party websites. Linked websites are not under Vital Software’s control, and Vital Software is not responsible for their content. Please be sure to review the terms and conditions and privacy policy of any third-party services before you share any User Content or information with such third-party services. Once sharing occurs, Vital Software will have no control over the information that has been shared.
    2. Third-Party Software. The Service may include or incorporate third-party software components that are generally available free of charge under licenses granting recipients broad rights to copy, modify, and distribute those components (“Third-Party Components”). Although the Service is provided to you subject to these Terms, nothing in these Terms prevents, restricts, or is intended to prevent or restrict you from obtaining Third-Party Components under the applicable third-party licenses or to limit your use of Third-Party Components under those third-party licenses.
  8. User Content
    1. User Content Generally. Certain features of the Service may permit users to submit, upload, publish, or otherwise transmit (“Post”) content to the Service, including medical documents, messages, photos, images, folders, data, text, and any other works of authorship or other works (“User Content”). You retain any copyright and other proprietary rights that you may hold in the User Content that you Post to the Service, subject to the licenses granted in these Terms.
    2. License Grant to Vital Software. By Posting User Content to or via the Service, you grant Vital Software a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully paid right and license (with the right to sublicense through multiple tiers) to use your User Content to provide the Services and to improve Vital Software’s products and services. We may also need to use some of your User Content, like data on how long you’ve been waiting, how many tests are ordered, and other clinical information, in order to make the predictions and aggregated statistics necessary to provide the Services, and you understand that we may use your User Content to train our algorithms through machine learning techniques.
    3. You agree to pay all monies owing to any person or entity resulting from Posting your User Content and from Vital Software’s exercise of the license set forth in this Section.
    4. You Must Have Rights to the Content You Post; User Content Representations and Warranties. You must not Post User Content if you are not the owner of or are not fully authorized to grant rights in all of the elements of that User Content. Vital Software disclaims any and all liability in connection with User Content. You are solely responsible for your User Content and the consequences of providing User Content via the Service. By providing User Content via the Service, you affirm, represent, and warrant to us that:
      1. you are the creator and owner of the User Content, or have the necessary licenses, rights, consents, and permissions to authorize Vital Software and users of the Service to use and distribute your User Content as necessary to exercise the licenses granted by you in this Section, in the manner contemplated by Vital Software, the Service, and these Terms;
      2. your User Content, and the Posting or other use of your User Content as contemplated by these Terms, does not and will not: (i) infringe, violate, misappropriate, or otherwise breach any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property, contract, or proprietary right; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (iii) cause Vital Software to violate any law or regulation or require us to obtain any further licenses from or pay any royalties, fees, compensation or other amounts or provide any attribution to any third parties; and
      3. your User Content could not be deemed by a reasonable person to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate.
    5. User Content Disclaimer. We are under no obligation to edit or control User Content that you or other users Post and will not be in any way responsible or liable for User Content. Vital Software 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, is alleged to violate the rights of third parties, 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 Vital Software with respect to 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, Vital Software does not permit infringing activities on the Service.
    6. Monitoring Content. Vital Software does not control and does not have any obligation to monitor: (a) User Content; (b) any content made available by third parties; or (c) the use of the Service by its users. You acknowledge and agree that Vital Software reserves the right to, and may from time to time, monitor any and all information transmitted or received through the Service for operational and other purposes. If at any time Vital Software chooses to monitor the content, then Vital Software still assumes no responsibility or liability for content or any loss or damage incurred as a result of the use of content. During monitoring, information may be examined, recorded, copied, and used in accordance with our Privacy Policy (defined below). Vital Software may block, filter, mute, remove or disable access to any User Content uploaded to or transmitted through the Service without any liability to the user who Posted such User Content to the Service or to any other users of the Service.
    7. Output. Certain features of the Services may generate and return AI-generated output based on the User Content (“Output”). Vital Software owns all Output generated by the Services. Subject your compliance with these Terms, Vital Software grants you a non-exclusive, non-transferable, perpetual right to use the Outputs for your personal, non-commercial purposes.
    1. Communications
      1. Text Messaging. You agree that Vital Software and those acting on our behalf may send you text (SMS) messages at the phone number you provide us. These messages may include operational messages about your use of the Service. Standard data and message rates may apply whenever you send or receive such messages, as specified by your carrier. IF YOU WISH TO OPT OUT OF ALL TEXT MESSAGES FROM VITAL SOFTWARE, YOU CAN DO SO THROUGH THE SERVICE OR BY TEXTING THE WORD “STOPALL” TO THE NUMBER FROM WHICH YOU ARE RECEIVING THE MESSAGES, HOWEVER YOU ACKNOWLEDGE THAT OPTING OUT OF RECEIVING ALL MESSAGES MAY IMPACT YOUR USE OF THE SERVICE. You may continue to receive text messages for a short period while we process your request, including a message confirming the receipt of your opt-out request.
      2. Email. We may send you emails concerning our products and services, as well as those of third parties. You may opt out of promotional emails by following the unsubscribe instructions in the promotional email itself.
      3. Content of Messages. Some of the messages we send you may contain PHI (protected health information). We do this because we believe sending a message that says, for example, "Your X-Ray: Left Ankle shows no fracture" is more helpful than a message that says "You have a new lab result. Click to find out what.” While most modern email services are encrypted, neither text messages nor email are guaranteed to be encrypted.
    2. Prohibited Conduct. BY USING THE SERVICE, YOU AGREE NOT TO:
      1. use the Service for any illegal purpose or in violation of any local, state, national, or international law;
      2. violate, encourage others to violate, or provide instructions on how to violate, any right of a third party, including by infringing or misappropriating any third-party intellectual property right;
      3. access, search, or otherwise use any portion of the Service through the use of any engine, software, tool, agent, device, or mechanism (including spiders, robots, crawlers, and data mining tools) other than the software or search agents provided by Vital Software;
      4. interfere with security-related features of the Service, including by: (i) disabling or circumventing features that prevent or limit use, printing or copying of any content; or (ii) 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;
      5. interfere with the operation of the Service or any user’s enjoyment of the Service, including by: (i) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (ii) making any unsolicited offer or advertisement to another user of the Service; (iii) collecting personal information about another user or third party without consent; or (iv) interfering with or disrupting any network, equipment, or server connected to or used to provide the Service;
      6. perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation or identity, accessing any other Service account without permission;
      7. sell or otherwise transfer the access granted under these Terms or any Materials (as defined in Section 6 (Ownership; Proprietary Rights)) or any right or ability to view, access, or use any Materials; or
      8. attempt to do any of the acts described in this Section 10 (Prohibited Conduct) or assist or permit any person in engaging in any of the acts described in this Section 10 (Prohibited Conduct).
    3. Intellectual Property Rights Protection. Vital Software respects the intellectual property rights of others, takes the protection of intellectual property rights very seriously, and asks users of the Service to do the same. Infringing activity will not be tolerated on or through the Service. Please review our Copyright Policy before using the Service and follow the procedures found in the policy if you believe any user is infringing on your intellectual property rights. 
    4. Modification of Terms. We may, from time to time, change these Terms. Please check these Terms periodically for changes. Revisions will be effective immediately except that, for existing users, material revisions will be effective 30 days after posting or notice to you of the revisions unless otherwise stated. We may require that you accept modified Terms in order to continue to use the Service. If you do not agree to the modified Terms, then you should discontinue your use of the Service. Except as expressly permitted in this Section 12 (Modification of Terms), these Terms may be amended only by a written agreement signed by authorized representatives of the parties to these Terms. 
    5. Term, Termination, and Modification of the Service
      1. Term. These Terms are effective beginning when you accept the Terms or first download, install, access, or use the Service, and ending when terminated as described in Section 13.2 (Termination).
      2. Termination. If you violate any provision of these Terms, then your authorization to access the Service and these Terms automatically terminate. In addition, Vital Software may, at its sole discretion, terminate these Terms or your account on the Service, or suspend or terminate your access to the Service, at any time for any reason or no reason, with or without notice, and without any liability to you arising from such termination.
      3. Effect of Termination. Upon termination of these Terms: (a) your license rights will terminate and you must immediately cease all use of the Service; (b) you will no longer be authorized to access the Service; and (c) Sections 5.3 (Feedback), 6 (Ownership; Proprietary Rights), 8.2 (License Grant to Vital Software), 8.7 (Output), 13.3 (Effect of Termination), 14 (Indemnity), 15 (Disclaimers; No Warranties by Vital Software), 16 (Limitation of Liability), 17 (Dispute Resolution and Arbitration), and 18 (Miscellaneous) will survive. You are solely responsible for retaining copies of any User Content you Post to the Service since upon termination of your account, you may lose access rights to any User Content you Posted to the Service.
      4. Modification of the Service. Vital Software reserves the right to modify or discontinue all or any portion of the Service at any time (including by limiting or discontinuing certain features of the Service), temporarily or permanently, without notice to you. Vital Software will have no liability for any change to the Service or any suspension or termination of your access to or use of the Service. You should retain copies of any User Content you Post to the Service so that you have permanent copies in the event the Service is modified in such a way that you lose access to User Content you Posted to the Service.
    6. Indemnity. To the fullest extent permitted by law, you are responsible for your use of the Service and your User Content, and you will defend and indemnify Vital Software, its affiliates and their respective shareholders, directors, managers, members, officers, employees, consultants, and agents (together, the “Vital Software Entities”) from and against every claim brought by a third party, and any related liability, damage, loss, and expense, including attorneys’ fees and costs, arising out of or connected with: (1) your unauthorized use of, or misuse of, the Service; (2) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (3) your violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (4) 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 those claims.
    7. Disclaimers; No Warranties by Vital Software
      1. THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING THE OUTPUTS, ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. VITAL SOFTWARE DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE, THE OUTPUTS, AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. VITAL SOFTWARE DOES NOT WARRANT THAT THE SERVICE OR ANY PORTION OF THE SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND VITAL SOFTWARE DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.
      2. THE OUTPUTS DO NOT CONSTITUTE MEDICAL ADVICE. SHOULD YOU HAVE ANY HEALTHCARE RELATED QUESTIONS, PLEASE CALL OR SEE YOUR PHYSICIAN OR OTHER HEALTHCARE PROVIDER PROMPTLY. YOU SHOULD NEVER DISREGARD MEDICAL ADVICE OR DELAY IN SEEKING MEDICAL ADVICE BECAUSE OF ANY INFORMATION IN THE OUTPUTS OR CONTENT PRESENTED THROUGH THE SERVICES, AND YOU SHOULD NOT USE THE OUTPUTS FOR DIAGNOSING OR TREATING A HEALTH PROBLEM. THE SERVICE DOES NOT CREATE A DOCTOR-PATIENT, THERAPIST-PATIENT OR OTHER HEALTHCARE PROFESSIONAL RELATIONSHIP BETWEEN YOU AND US. VITAL SOFTWARE IS NOT A HEALTHCARE PROVIDER OR BUSINESS ASSOCIATE OF A HEALTHCARE PROVIDER.
      3. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR VITAL SOFTWARE ENTITIES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF THE VITAL SOFTWARE ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. WE ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM THE SERVICE AND YOUR DEALING WITH ANY OTHER SERVICE USER. YOU UNDERSTAND AND AGREE THAT (A) YOU USE ANY PORTION OF THE SERVICE AT YOUR OWN DISCRETION AND RISK, AND THAT WE ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE) OR ANY LOSS OF DATA, INCLUDING USER CONTENT AND (B) PORTIONS OF THE SERVICE RELY ON MACHINE LEARNING WHICH, BY NATURE, PRODUCES OUTPUTS THAT ARE BASED ON PROBABILISTIC REASONING AND THEREFORE MAY NOT ALWAYS BE ACCURATE, COMPLETE, RELEVANT, USEFUL, OR ERROR FREE.
      4. THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION 15 APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. Vital Software does not disclaim any warranty or other right that Vital Software is prohibited from disclaiming under applicable law.
    8. Limitation of Liability
      1. TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE VITAL SOFTWARE ENTITIES 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, THE OUTPUTS, OR ANY 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 VITAL SOFTWARE ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
      2. EXCEPT AS PROVIDED IN SECTIONS 17.5 (COMMENCING ARBITRATION) AND 17.7 (ARBITRATION RELIEF) AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE VITAL SOFTWARE ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICE, THE OUTPUTS OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO US$100.
      3. EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. 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 16 (LIMITATION OF LIABILITY) WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
    9. Dispute Resolution and Arbitration
      1. Generally. Except as described in Section 17.2 (Exceptions) and 17.3 (Opt-Out), you and Vital Software agree that every dispute arising in connection with these Terms, the Service, or communications from us will be resolved through binding arbitration. Arbitration uses a neutral arbitrator instead of a judge or jury, is less formal than a court proceeding, may allow for more limited discovery than in court, and is subject to very limited review by courts. This agreement to arbitrate disputes includes all claims 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. Any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement will be resolved by the arbitrator.

        YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND VITAL SOFTWARE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.

      2. Exceptions. Although we are agreeing to arbitrate most disputes between us, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law in aid of arbitration; or (d) to file suit in a court of law to address an intellectual property infringement claim.
      3. Opt-Out. If you do not wish to resolve disputes by binding arbitration, you may opt out of the provisions of this Section 17 (Dispute Resolution and Arbitration) within 30 days after the date that you agree to these Terms by sending a letter to Vital Software Inc., Attention: Legal Department - Arbitration Opt-Out, 2803 Philadelphia Pike, Suite B, PMB 7017, Claymont, Delaware, 19703 that specifies: your full legal name and a statement that you wish to opt out of arbitration (“Opt-Out Notice”). Once Vital Software receives your Opt-Out Notice, this Section 17 (Dispute Resolution and Arbitration) will be void and any action arising out of these Terms will be resolved as set forth in Section 18.2 (Governing Law). The remaining provisions of these Terms will not be affected by your Opt-Out Notice.
      4. Arbitrator. This arbitration agreement, and any arbitration between us, is subject the Federal Arbitration Act and will be administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (collectively, “AAA Rules”) as modified by these Terms. 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 Vital Software.
      5. Commencing Arbitration. Before initiating arbitration, a party must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice of Arbitration”). Vital Software's address for Notice is: Vital Software Inc., 2803 Philadelphia Pike, Suite B, PMB 7017, Claymont, Delaware, 19703. The Notice of Arbitration must: (a) identify the name of the party making the claim; (b) describe the nature and basis of the claim or dispute; and (c) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, you or Vital Software may commence an arbitration proceeding. If you commence arbitration in accordance with these Terms, Vital Software will reimburse you for your payment of the filing fee, unless your claim is for more than US$10,000 or if the Company has received 25 or more similar demands for arbitration, in which case the payment of any fees will be decided by the AAA Rules. If the arbitrator finds that either the substance of the 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 and the other party may seek reimbursement for any fees paid to AAA.
      6. Arbitration Proceedings. Any arbitration hearing will take place in the county and state of your residence unless we agree otherwise or, if the claim is for US$10,000 or less (and does not seek injunctive relief), you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a telephonic or video hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your residence. During the arbitration, the amount of any settlement offer made by you or Vital Software must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. 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.
      7. Arbitration Relief. Except as provided in Section 17.8 (No Class Actions), the arbitrator can award any relief that would be available if the claims had been brought in a court of competent jurisdiction. If the arbitrator awards you an amount higher than the last written settlement amount offered by Vital Software before an arbitrator was selected, Vital Software will pay to you the higher of: (a) the amount awarded by the arbitrator and (b) US$10,000. The arbitrator's award shall be final and binding on all parties, except (1) for judicial review expressly permitted by law or (2) if the arbitrator's award includes an award of injunctive relief against a party, in which case that party shall have the right to seek judicial review of the injunctive relief in a court of competent jurisdiction that shall not be bound by the arbitrator's application or conclusions of law. Judgment on the award may be entered in any court having jurisdiction.
      8. No Class Actions. YOU AND VITAL SOFTWARE 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 Vital Software 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.
      9. Modifications to this Arbitration Provision. If Vital Software makes any substantive change to this arbitration provision, you may reject the change by sending us written notice within 30 days of the change to Vital Software's address for Notice of Arbitration, in which case your account with Vital Software will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
      10. Enforceability. If Section 17.8 (No Class Actions) or the entirety of this Section 17 (Dispute Resolution and Arbitration) is found to be unenforceable, or if Vital Software receives an Opt-Out Notice from you, then the entirety of this Section 17 (Dispute Resolution and Arbitration) will be null and void and, in that case, the exclusive jurisdiction and venue described in Section 18.2 (Governing Law) will govern any action arising out of or related to these Terms.
    10. Miscellaneous
      1. General Terms. These Terms, including the Privacy Policy, Copyright Policy and any other agreements expressly incorporated by reference into these Terms, are the entire and exclusive understanding and agreement between you and Vital Software 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 and all rights granted under these Terms, including with respect to your User Content, 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. Throughout these Terms the use of the word “including” means “including but not limited to.” If any part of these Terms is held to be invalid or unenforceable, then the unenforceable part will be given effect to the greatest extent possible, and the remaining parts will remain in full force and effect.
      2. Governing Law. These Terms are governed by the laws of the State of Delaware without regard to conflict of law principles. You and Vital Software submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Washington, D.C. for resolution of any lawsuit or court proceeding permitted under these Terms. We operate the Service from our offices in Washington, D.C., and we make no representation that Materials included in the Service are appropriate or available for use in other locations.
      3. Privacy Policy. Please read the Vital Software PRIVACY POLICY (the “PRIVACY POLICY”) carefully for information relating to our collection, use, storage, and disclosure of your personal information. The Vital Software Privacy Policy is incorporated by this reference into, and made a part of, these Terms.
      4. 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”). All Additional Terms are incorporated by this reference into, and made a part of, these Terms.
      5. Consent to Electronic Communications. By using the Service, you consent to receiving certain electronic communications from us as further described in our Privacy Policy. Please read our Privacy Policy to learn more about our electronic communications practices. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that those communications be in writing.
      6. Contact Information. The Service is offered by Vital Software Inc., located at 2803 Philadelphia Pike, Suite B, PMB 7017, Claymont, Delaware, 19703. You may contact us by sending correspondence to that address or by emailing us at support@vitaler.com.
      7. Notice to California Residents. If you are a California resident, then 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 +1-800-952-5210 in order to resolve a complaint regarding the Service or to receive further information regarding use of the Service.
      8. No Support. We are under no obligation to provide support for the Service. In instances where we may offer support, the support will be subject to published policies.
      9. International Use. The Service is intended for visitors located within the United States. We make no representation that the Service is appropriate or available for use outside of the United States. Access to the Service from countries or territories or by individuals where such access is illegal is prohibited.