Terms & Conditions

Last updated: February 14, 2022

Please read these terms and conditions carefully before using Our Services.

THIS AGREEMENT CONTAINS A PROVISION THAT GENERALLY

REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO

RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS

ACTIONS, AND ALSO LIMITS THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE. SEE THE DISPUTE RESOLUTION SECTION FOR MORE INFORMATION.

Acknowledgment

These Terms and Conditions (the “Terms”) govern your access to and use of

Our products, Websites (sites accessible from https://vibrantgastro.com/monitoring), Application (the software program provided by the Company downloaded by You on any electronic device, named Vibrant), and other associated online services (collectively, the “Services”) that are owned or operated by Vibrant Ltd (“Vibrant,” “Company,” “We,” “Our,” or “Us”) or one of our Affiliates and that link to or incorporate these Terms. The Terms form the entire agreement between You and the Company regarding the use of the Services.

Your access to and use of the Service is conditioned on Your acceptance of and compliance with these Terms and Conditions. These Terms and Conditions apply to all visitors, users and others who access or use the Service.

BY CLICKING THE “I AGREE” BUTTON OR BY USING THE SERVICES, YOU AGREE TO BE BOUND BY THE TERMS. PLEASE READ THEM CAREFULLY.

IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT CLICK ON THE “I AGREE” BUTTON, AND DO NOT USE THE SERVICES.

These Terms are a legal document between You and the Company and it governs your use of the Services made available to You by the Company. These Terms are not an agreement with an Application Store (the digital distribution service operated and developed by Apple Inc. (Apple App Store) or Google Inc. (Google Play Store) by which the Application has been downloaded to your Device). Therefore, the Company is solely responsible for the Services. Although an Application Store is not a party to this agreement, it has the right to enforce it against You as a third party beneficiary relating to your use of the Services, including the Application.

The use of the Services by users accessing the Services through Family Sharing/Family Group or volume purchasing is expressly subject to these Terms.

The Services are licensed, not sold, to You by the Company for use strictly in accordance with the terms of these Terms.

If You are using the Services as a patient, You represent that you are over the age of 22. The Company does not permit patients under 22 to use the Services.  If You are using the Services in the course of providing care to a patient, you represent that you are over the age of 18.

Our Privacy Policy is incorporated into this agreement by this reference. Our Privacy Policy describes Our policies and practices regarding the collection, use and disclosure of Your personal information and provides you with information about the rights you may have with respect to your personal information.  Please read Our Privacy Policy carefully before using Our Services (https://vibrantgastro.com/PrivacyPolicy).

User Accounts

When You create a unique account to access or use our Services (“Account”), You must provide Us information that is accurate, complete, and current at all times. Failure to do so constitutes a breach of the Terms, which may result in immediate termination of Your Account on Our Services.

You are responsible for safeguarding the password that You use to access the Services and for any activities or actions under Your password, whether Your password is with Our Services or a Third-Party Social Media service (any services or content (including data, information, products or services) provided by a third-party that may be displayed, included, or made available by the Services).

You agree not to disclose Your password to any third party. You must notify Us immediately upon becoming aware of any breach of security or unauthorized use of Your Account.

You may not use as a username the name of another person or entity or that is not lawfully available for use, a name or trademark that is subject to any rights of another person or entity other than You without appropriate authorization, or a name that is otherwise offensive, vulgar or obscene.

Content

Our Services may allow You to enter notes (“Content”). You are responsible for the Content that You post to the Services, including its legality, reliability, and appropriateness.

By posting Content to the Services, You grant Us the right and license to use, modify, reproduce, and distribute such Content on and through the Services, consistent with our Privacy Policy, our agreements with Providers, and for purposes of providing the Services. You retain any and all of Your rights to any Content You submit, post or display on or through the Services and You are responsible for protecting those rights.

You represent and warrant that: (i) the Content is Yours (You own it) or You have the right to use it and grant Us the rights and license as provided in these Terms, and (ii) the posting of Your Content on or through the Services does not violate the privacy rights, publicity rights, copyrights, contract rights or any other rights of any person.

License

Scope of License

The Company grants You a revocable, non-exclusive, non-transferable, limited license to download, install and use the Services, including but not limited to the Application, strictly in accordance with these Terms.

You may only use the Application on any device that can access the Services such as a computer, a cellphone or a digital tablet (“Device”) that You own or control and as permitted by the Application Store’s terms and conditions.

The license that is granted to You by the Company is limited to the extent expressly set forth in these Terms.

License Restrictions

You agree not to, and You will not permit others to:

  • Copy or use the Application or any part of the Services for any purpose other than as permitted under the above section ‘License’.
  • Modify, make derivative works of, disassemble, decrypt, reverse compile or reverse engineer any part of the Services.
  • Use the Services for any purpose that is unlawful or prohibited by these Terms.
  • Reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Services or any part thereof.
  • Remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Services, including any copy thereof.
  • Misrepresent your identity or provide Us with any false information in any information-collection portion of our Services, such as a registration, enrollment, or Application page.
  • Access or attempt to access any portion of our Services to which you have not been explicitly granted access.
  • Rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services, or any features or functionality of the Services, to any third party for any reason, including by making the Application available on a network where it is capable of being accessed by more than one device at any time;
  • Use the Services in any manner that would compete with any product or service of the Company or any of our Affiliates.
  • Take any action or use the Services in any way that could, in our sole judgment, interfere with any other party’s use or enjoyment of the Services, or in a manner that could overburden, impair, damage or disable our networks or servers, or expose us or our licensors, users, customers or suppliers to any claims or liability whatsoever.
  • Use manual or automated software, devices, scripts, robots, backdoors or other means or processes to access, “scrape,” “crawl” or “spider” any web pages or other services contained in the Services. If you are blocked from the Services (including by blocking your IP address), you agree not to implement any measures to circumvent such blocking (e.g. by masking your IP address or using a proxy IP address).
  • Introduce any viruses or any other computer code, files, or programs that interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment.

Terms for Providers

This section establishes additional obligations for providers that treat patients using the Services.

You understand and agree that prior to using the Services to provide treatment to a specific patient, including, without limitation, creating a patient account via the Application or collecting information from a patient’s device, you must obtain a written consent from the patient, or the patient’s legal guardian if the patient has not reached the age of majority or as otherwise applicable, using the then-current Consent Form, validly signed by the patient or the patient’s legal guardian. You must promptly provide a copy of that signed Patient Consent Form to US via Email. Under no circumstances may you provide US with information about a patient, create a patient account, or allow a patient to use the Services if the patient or the patient’s legal guardian has not signed a Consent Form.

You also understand and agree that prior to using the Services to provide treatment to a specific patient who is under the age of eighteen (18) years old, you must obtain a written consent from the patient’s parent or guardian, using the then-current Parent Acknowledgment form, validly signed by the patient’s legal guardian. You must promptly provide a copy of that signed Parent Acknowledgement form to Us via Email. Under no circumstances may you provide Us with information about a patient who is under the age of eighteen (18), or allow such a patient to use the Services if the patient’s parent or legal guardian has not signed a Parent Acknowledgment form. You agree that you will not use the Services to provide treatment to a patient if the patient or legal guardian has not signed the Acknowledgement form.

You agree that you will comply with all applicable laws, including privacy and data security laws, when using the Services and when collecting, using or sharing data associated with the use of the Services.

Intellectual Property

The Services and its original content (excluding Content provided by You or other users), features and functionality are and will remain the exclusive property of the Company and its licensors.

The Service is protected by copyright, trademark, and other laws of both the United States and foreign countries.

Our trademarks and trade dress may not be used in connection with any product or service without the prior written consent of the Company.

You and We acknowledge that in the event of any third party claim that the Application or Your possession and use of the Application infringes that third party’s intellectual property rights, We, not any Application Store, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.

Your Feedback to Us

You assign all rights, title and interest in any Feedback (feedback, innovations or suggestions sent by You regarding the attributes, performance or features of our Services) You provide the Company. If for any reason such assignment is ineffective, You agree to grant the Company a non-exclusive, perpetual, irrevocable, royalty free, worldwide right and license to use, reproduce, disclose, sub-license, distribute, modify and exploit such Feedback without restriction. The Company shall be free to use, copy, modify, publish, or redistribute the Suggestions for any purpose and in any way without any credit or any compensation to You.

Links to Other Websites

Our Services may display, include or make available third-party content (including data, information, applications and other products services) or contain links to third-party websites or services that are not owned or controlled by the Company.

The Company has no control over, and assumes no responsibility for, the content, privacy policies, or practices of any third party web sites or services. You further acknowledge and agree that the Company shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such content, goods or services available on or through any such web sites or services.

You must comply with applicable third-parties’ Terms of agreement when using the Services. Third-party services and links thereto are provided solely as a convenience to You and You access and use them entirely at your own risk and subject to such third-parties’ Terms and conditions. We strongly advise You to read the terms and conditions and privacy policies of any thirdparty web sites or services that You visit.

Claims

The Company does not make any warranties concerning the Services, including the Application. To the extent You have any claim arising from or relating to your use of the Application, the Company, not the Application Store, is responsible for addressing any such claims, which may include, but not limited to: (i) any product liability claims; (ii) any claim that the Application fails to conform to any applicable legal or regulatory requirement; and (iii) any claim arising under consumer protection, or similar legislation.

Term and Termination

These Terms shall remain in effect until terminated by You or the Company. The Company may, in its sole discretion, at any time and for any or no reason, suspend or terminate our agreement with you pursuant to these terms with or without prior notice.

Our agreement with you pursuant to these Terms will terminate immediately, without prior notice from the Company, in the event that you fail to comply with any provision of these Terms. You may terminate the agreement by ceasing to use the Services, but the Terms will remain effective with regard to you use of the Services prior to such termination.

Upon termination, You shall cease all use of Services and delete all copies of the Application from your Device.

Termination of these Terms will not limit any of the Company’s rights or remedies at law or in equity in case of breach by You (during the term of this agreement) of any of your obligations under the Terms.

Upon termination, Your right to use the Services will cease immediately.

Limitation of Liability

Notwithstanding any damages that You might incur, the entire liability of the Company and any of its suppliers under any provision of this Terms and Your exclusive remedy for all of the foregoing shall be limited to the amount actually paid by You through or for the Services or 100 USD if You haven’t purchased any aspect of the Services.

To the maximum extent permitted by applicable law, in no event shall the Company or its suppliers be liable for any special, incidental, indirect, or consequential damages whatsoever (including, but not limited to, damages for loss of profits, loss of data or other information, for business interruption, for personal injury, loss of privacy arising out of or in any way related to the use of or inability to use the Services, third-party software and/or third-party hardware used with the Services, or otherwise in connection with any provision of this Terms), even if the Company or any supplier has been advised of the possibility of such damages and even if the remedy fails of its essential purpose.

Some jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply. In these jurisdictions, each party’s liability will be limited to the greatest extent permitted by law.

Indemnification

You agree to indemnify and hold the Company and its parents, subsidiaries, affiliates, officers, employees, agents, partners and licensors (if any) harmless from any claim or demand, including reasonable attorneys’ fees, due to or arising out of your: (a) use of the Services; (b) violation of these Terms or any law or regulation; or (c) violation of any right of a third party.

“AS IS” and “AS AVAILABLE” Disclaimer

The Services are provided to You “AS IS” and “AS AVAILABLE” and with all faults and defects without warranty of any kind. To the maximum extent permitted under applicable law, the Company, on its own behalf and on behalf of its Affiliates and its and their respective licensors and service providers, expressly disclaims all warranties, whether express, implied, statutory or otherwise, with respect to the Service, including all implied warranties of merchantability, fitness for a particular purpose, title and non-infringement, and warranties that may arise out of course of dealing, course of performance, usage or trade practice. Without limitation to the foregoing, the Company provides no warranty or undertaking, and makes no representation of any kind that the Services will meet Your requirements, achieve any intended results, be compatible or work with any other software, applications, systems or services, operate without interruption, meet any performance or reliability standards or be error free or that any errors or defects can or will be corrected.

Without limiting the foregoing, neither the Company nor any of the company’s provider makes any representation or warranty of any kind, express or implied: (i) as to the operation or availability of the Services, or the information, content, and materials or products included thereon; (ii) that the Services will be uninterrupted or error-free; (iii) as to the accuracy, reliability, or currency of any information or content provided through the Services; or (iv) that the Services, its servers, the content, or e-mails sent from or on behalf of the Company are free of viruses, scripts, trojan horses, worms, malware, timebombs or other harmful components.

Some jurisdictions do not allow the exclusion of certain types of warranties or limitations on applicable statutory rights of a consumer, so some or all of the above exclusions and limitations may not apply to You. But in such a case the exclusions and limitations set forth in this section shall be applied to the greatest extent enforceable under applicable law.

Governing Law

The laws of the State of New York, excluding its conflicts of law rules, shall govern this Terms and Your use of the Service. Your use of the Application may also be subject to other local, state, national, or international laws.

Dispute Resolution

If You have any concern or dispute about the Services, You agree to first try to resolve the dispute informally by contacting the Company.

Any dispute or claim relating in any way to your use the Services will, to the extent permitted by law, be resolved by binding arbitration, rather than in court, except that you may assert claims in small claims court if your claims qualify.

There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the terms of these Terms as a court would. 

ANY CLAIM THAT EITHER OF US MAY HAVE ARISING OUT OF OR

RELATING TO THESE TERMS (INCLUDING FORMATION,

PERFORMANCE, OR BREACH OF THEM), OUR RELATIONSHIP WITH

EACH OTHER, OR USE OF THE SERVICES MUST BE RESOLVED

THROUGH BINDING INDIVIDUAL ARBITRATION IN ACCORDANCE WITH

THE AAA’S CONSUMER ARBITRATION RULES, AVAILABLE

WWW.ADR.ORG. ARBITRATION HEARINGS WILL BE HELD IN NEW

YORK CITY, NY. IF THIS LOCATION IS NOT CONVENIENT FOR YOU,

PLEASE LET US KNOW AND WE WILL WORK TO DETERMINE A

MUTUALLY CONVENIENT LOCATION.  ANY DISAGREEMENTS REGARDING THE FORUM FOR ARBITRATION WILL BE SETTLED BY THE ARBITRATOR.

AS AN EXCEPTION TO THIS ARBITRATION PROVISION, EITHER YOU OR

VIBRANT MAY PURSUE IN SMALL CLAIMS COURT ANY CLAIM THAT IS WITHIN THAT COURT’S JURISDICTION SO LONG AS SUCH CLAIMS ARE BROUGHT ONLY ON AN INDIVIDUAL BASIS.

NOTHING HEREIN SHALL BE CONSTRUED TO PRECLUDE ANY PARTY

FROM SEEKING INJUNCTIVE RELIEF IN THE STATE AND FEDERAL COURTS LOCATED IN NEW YORK, IN ORDER TO PROTECT ITS RIGHTS PENDING AN OUTCOME IN ARBITRATION.

YOU AND VIBRANT ALSO AGREE TO ARBITRATE IN EACH OF YOUR

AND OUR INDIVIDUAL CAPACITIES ONLY, NOT AS A REPRESENTATIVE OR MEMBER OF A CLASS, AND YOU AND WE EXPRESSLY WAIVE ANY

RIGHT TO FILE A CLASS ACTION OR SEEK RELIEF ON A CLASS BASIS.

IF YOU INITIATE ARBITRATION, YOUR ARBITRATION FEES WILL BE

LIMITED TO THE FILING FEE SET FORTH IN AAA’S CONSUMER

ARBITRATION RULES. REGARDLESS OF WHO INITIATES ARBITRATION, VIBRANT WILL PAY YOUR SHARE OF ARBITRATION FEES (NOT INCLUDING YOUR ATTORNEYS’ FEES) UP TO A MAXIMUM OF $2,500.  IF THE ARBITRATOR RULES AGAINST VIBRANT, IN ADDITION TO

ACCEPTING WHATEVER RESPONSIBILITY IS ORDERED BY THE

ARBITRATOR, VIBRANT WILL REIMBURSE YOUR REASONABLE

ATTORNEYS’ FEES AND COSTS UP TO A MAXIMUM OF $5,000,

REGARDLESS OF WHO INITIATED THE ARBITRATION, UNLESS THE

ARBITRATOR FINDS SOME OR ALL OF YOUR CLAIMS TO BE

FRIVOLOUS OR TO HAVE BEEN BROUGHT IN BAD FAITH.  IN ADDITION,

IF THE ARBITRATOR RULES IN VIBRANT’S FAVOR, IT WILL NOT SEEK

REIMBURSEMENT OF OUR ATTORNEYS’ FEES AND COSTS,

REGARDLESS OF WHO INITIATED THE ARBITRATION, UNLESS THE ARBITRATOR FINDS SOME OR ALL OF YOUR CLAIMS TO BE FRIVOLOUS OR TO HAVE BEEN BROUGHT IN BAD FAITH.

To help resolve any issues between us promptly and directly, you and Vibrant agree to begin any arbitration within one year after a claim arises; otherwise, the claim is waived.

It is important that you understand that by entering into this agreement, we are each waiving the right to a trial by jury or to participate in a class action against the other party for claims that are covered by this section. The arbitrator’s decision will be conclusive and binding and may be entered as a judgment in any court of competent jurisdiction.

United States Legal Compliance

You represent and warrant that (i) You are not located in a country that is subject to the United States government embargo, or that has been designated by the United States government as a “terrorist supporting” country, and (ii) You are not listed on any United States government list of prohibited or restricted parties.

Severability and Waiver

Severability

If any provision of these Terms is held to be unenforceable or invalid, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.

Waiver

Except as provided herein, the failure to exercise a right or to require performance of an obligation under this Terms shall not affect a party’s ability to exercise such right or require such performance at any time thereafter nor shall be the waiver of a breach constitute a waiver of any subsequent breach.

Changes to These Terms and Conditions

We reserve the right, at Our sole discretion, to modify or replace these Terms at any time. If a revision is material We will make reasonable efforts to provide at least 30 days’ notice prior to any new terms taking effect.

By continuing to access or use Our Services after those revisions become effective, You agree to be bound by the revised terms. If You do not agree to the new terms, in whole or in part, please stop using the website and the Services.

Modifications to our Services

The Company reserves the right to modify, suspend or discontinue, temporarily or permanently, the Services or any service to which it connects, with or without notice and without liability to You.

Updates to the Services

The Company may from time to time provide enhancements or improvements to the features/functionality of the Services, including the Application, which may include patches, bug fixes, updates, upgrades and other modifications.

Updates may modify or delete certain features and/or functionalities of the

Services. You agree that the Company has no obligation to (i) provide any Updates, or (ii) continue to provide or enable any particular features and/or functionalities of the Services to You.

You further agree that all updates or any other modifications will be (i) deemed to constitute an integral part of the Services, and (ii) subject to these Terms.

Maintenance and Support

The Application Store does not provide any maintenance or support for the download and use of the Services, including the Application. To the extent that any maintenance or support is required by applicable law, the Company, not the Application Store, shall be obligated to furnish any such maintenance or support.

Electronic Communications

When you use the Services or send email to us, you are communicating with us electronically. You agree that We may contact you by telephone, email or text messages (including an automatic telephone dialing system) at any of the phone numbers provided by you or on your behalf in connection with a Vibrant Account, including for marketing purposes. Message and data rates may apply. You consent to receive communications from us electronically. You may opt out of receiving text messages from Us at any time, either by replying “STOP” to messages sent via a short code (i.e., a 5- or 6-digit phone number), by following the instructions in the communications you receive using the mobile device that is receiving the messages, or by updating your preferences in your Account. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.

Contact Us

If you have any questions about these Terms and Conditions, You can contact us: