Vital Dynamix Software User Terms

Last Revised: September 26, 2023

YOU AGREE TO BE BOUND BY THESE TERMS UPON THE EARLIER OF: (A) CLICKING THE “ACCEPT” OR “AGREE” SELECTOR ACCOMPANYING THESE TERMS; OR (B) ACCESSING OUR PLATFORM VIA THE INTERFACE THAT DISPLAYS THESE TERMS. 

1. Introduction

1.1 Software User Terms. The Platform (defined below) is operated and managed by Vital Dynamix LLC, a New York limited liability company (“our,” “us,” or “we”). These Software User Terms (“Terms”) apply to the use of our Platform.

1.2 Platform; Apps. Among other software-based solutions and services, we operate a cloud-based platform based on a combination of software and hardware (including one or more servers, databases and utilities) which are operable to generate the interface that displays these Terms and to deploy one or more web portals (collectively, our “Platform”). As described by such interface, our Platform may include our Vital EVV™ Platform, our Vital ACS™ Platform or another type of Platform described by such interface. Parts of our Platform may include one or more of our web-based mobile apps (which are usable through our web interface) and our other mobile apps, which are downloadable from an online marketplace, such as the Apple App Store or the Google Play Store (collectively, our “Apps”).

1.3 Binding on You. In these Terms, we use “you” or “your” to refer to you, personally. By registering with, accessing or otherwise using our Platform, you hereby agree to be bound by these Terms as set forth below.

1.4 Non-Limiting Words. In these Terms, we use the words “including,” “includes,” and “such as” in a non-limiting fashion. 

1.5 Updates. We reserve the right to change these Terms at any time without notice. You acknowledge and agree that it is your responsibility to review these Terms periodically and familiarize yourself with any changes. Your continued use of our Platform after any such changes will constitute your acknowledgment of and agreement to the changed Terms. 

2. Obligations, Disclosures and Consent

2.1 Documentation; Software Manual. When using the Apps, you will comply with the requirements described in the applicable documentation that we provide or make available to you, including the EVV-related software manual that is accessible at https://www.vitaldynamix.com/support/, which we may update from time to time (“Manual”).

2.2 Use in New York. Except to the extent the Manual expressly states otherwise, (a) our Platform is intended to support your provision of healthcare services only in New York, and (b) you will not use our Platform or Apps when you are located outside of New York. 

2.3 Only Use Your Organization’s Devices. You may only use our Platform as authorized by the employer, company or organization (“Organization”) that hired you to perform healthcare services for your Organization. You will not use any smartphone, iPad, tablet, laptop or other mobile device to use any App other than a mobile device that is: (a) owned by or leased to your Organization; (b) managed and secured by your Organization; and (c) specifically issued by your Organization to you (“Organization Device”). For clarity, you will not use any personal device to access our Platform or Apps other than your Organization Device.

2.4 Our Platform Handles Protected Health Information. You understand that our Platform enables you to access protected health information (“PHI”) of your Organization and to also input and transfer PHI to your Organization. You also understand that PHI is regulated by the Health Information Portability and Accountability Act (HIPAA), as amended, and the Health Information Technology for Economic and Clinical Health Act (HITECH) (collectively, the “HIPAA Rules”).

2.5 You Must Maintain Security. When certain events occur, such as your Organization Device having a weak cellular signal, some or all of our Apps may be designed to temporarily store PHI on the memory hardware of your Organization Device. Also, for your convenience, our Platform may keep you logged in to our Apps for a designated number of days unless you actively log out. At least for these reasons, it is important for you to keep your Organization Device secure at all times. For as long as you possess or control your Organization Device that is connectable to our Platform, you will:

• (a) use reasonable steps and measures to maintain the confidentiality and security of the PHI in accordance with the HIPAA Rules and your Organization’s information security program and policies;
• (b) Log out of each App upon the completion of your App-related work shift as specified by your Organization’s scheduler or supervisory personnel;
• (c) not allow any other person to use your Organization Device unless your Organization has expressly authorized you to do so otherwise;
• (d) not leave your Organization Device in any room or area that is insecure or otherwise accessible to the public;
• (e) use reasonable security safeguards to guard against unauthorized usage of your Organization Device, including the use of your passcodes, login credentials (e.g., a username and password), biometric codes, security codes, security authentication data or access credentials (collectively, the “Credentials”); and
• (f) not share or disclose your Credentials to any other person.

2.6 Immediately Notify Us of Loss or Theft. For as long as you possess or control your Organization Device that is connectable to our Platform, you will immediately notify us, by emailing us at legal@vitaldynamix.com, if you learn or suspect that: (a) your Organization Device has been lost, stolen or misplaced; or (b) someone other than you has learned of your Credentials.

2.7 We Do Not Collect Your Biometric Information. Each of our Apps is designed so that, when you first use the App, you are required to create Credentials, which may include a biometric Credential based on your biometric information, such as your fingerprint or a scan of your face, retina, iris or hand. If you use a biometric Credential for any App, your biometric information will be locally stored on the hardware of your Organization Device. We will not collect, capture, receive or obtain this biometric information. For clarity, your biometric information will not be sent to our Platform.

2.8 EVV Apps Are Designed to Track Your Location. Our Vital EVV™ Platform is designed and intended to electronically verify your visits to the homes of individuals receiving home healthcare services. Apps related to the Vital EVV™ Platform are designed to track the varying location of your Organization Device, which, in effect, will track your location as you travel with your Organization Device.

2.9 You May Consent to Location Tracking. When your Organization Device is connected to an App related to the Vital EVV™ Platform, the location tracking feature of the App will be turned on (activated) only after you input your consent for the App to use your current location data.

2.10 Turn Off Location Tracking When Not Using Apps. When you have finished your home healthcare services on any given day, you agree to close and log out of the App, turn off the location tracking feature using the settings in your Organization Device, or entirely shut off your Organization Device. That way, our Platform will not track your location when you are not performing home healthcare services.

2.11 Contact Us Regarding Location Tracking Concerns. You understand and agree that if you do not consent to the tracking of your location (as described above) for your home healthcare services, the Apps related to our Vital EVV™ Platform will not function for their intended purpose. Please review our Privacy Policy to learn how we may use your location data and other personal information. If you have any questions, please feel free to contact us.  

2.12 Help. You understand that your Organization is responsible for providing you with training on the requirements, mandates, rules and guidelines promulgated or published by the State of New York in relation to implementing requirements of the Cures Act with respect to EVV (“NY EVV Requirements”), including providing you with training regarding the proper use of our Platform and Apps. You must contact your Organization with respect to any questions relating to NY EVV Requirements. If, after reviewing our documentation (including the Manual), you have questions regarding the use of any App, you must first contact your Organization for assistance. We may provide your Organization with support related to the implementation of our Platform and Apps.

3. Registration and Credentials.

To access our Platform after registering, you will be required to use Credentials. Access to and use of password-protected or secure areas of our Platform are restricted to authorized users only. You will not share your Credentials, account information, or secured access to our Platform with any third party, nor will you allow any third party to use your Credentials. You will maintain the confidentiality of your Credentials and Platform account information. You will be responsible for all activities that occur in relation to any Platform user accounts provided to you, your Credentials, your use of our Platform or your Organization Device. You will notify us immediately if you discover any use of your Credentials, Platform accounts or Organization Device that you did not authorize or that violates these Terms. 

4. Intellectual Property.

We or our licensors, lessors or suppliers (collectively, our “Suppliers”) own, control or have a license to all of the trademarks, service marks, marks, domain names, logos, slogans, symbols, designs, trade dress, works of authorship, data, software, graphical user interfaces, content, text, images, photos, audio recordings, videos, information and resources displayed by or accessible within our Platform (the foregoing items and our Platform and Apps being collectively referred to as our “Platform Resources”). Our Platform Resources are protected by United States and international copyright laws and other intellectual property laws. We reserve all rights in and to all Platform Resources.

5. Platform Usage Restrictions.

You will not directly or indirectly (by causing or permitting others to): (a) license, sublicense, sell, rent, lease, sublease, transfer, assign, distribute, display, host, outsource, disclose, permit timesharing or service bureau use of, or otherwise commercially exploit any Platform Resources; (b) modify, adapt, create derivative works of, disassemble, decompile, decrypt, reduce to human-readable form, port, translate, localize, reverse engineer or hack any Platform Resources; (c) disrupt, interfere with, interrupt, disable or encumber the operation of any Platform Resources; (d) perform any automated, semi-automated, server-based, or software-driven testing of any Platform Resources without our prior written consent, including functional evaluation, benchmark, vulnerability, performance, load, stress, and security testing; (e) cause or enable any robot, bot, spider, scraper, wanderer, gatherer, harvester, site search/retrieval application or other automatic device, data processor, software module or process to: (i) penetrate, interact with or operate with any Platform Resources; (ii) conduct any step of any process managed by any Platform Resources; or (iii) extract, data mine, pull or retrieve any information or data from any Platform Resources; (f) bypass or circumvent any Credentials or any other security controls of us or our Suppliers; (g) remove, alter or modify any program markings or any notice on any Platform Resources, including, attribution, copyright, proprietary and other legal notices; (h) access or use any Platform Resources after the applicable Usage Period (defined in Section 8.1); or (i) violate any other usage restrictions displayed within our Platform or within any documentation accessible within our Platform, including terms provided in pop-ups and screens containing frequently asked questions. Your violation of any of the restrictions in this Section may subject you to penalties and liabilities under copyright laws, trademark laws, intellectual property laws, and civil and criminal statutes.

6. Acceptable Use and Conduct

6.1 You agree to use our Platform Resources only for the purposes intended and as permitted by these Terms, the terms of our Suppliers, and applicable laws, regulations, and generally accepted online practices and industry guidelines, including the applicable NY EVV Requirements. 

6.2 To access our Platform Resources, you may be required to provide certain information about yourself (such as your identification, contact details, etc.) as part of the registration process, or as part of your ability to use our Platform Resources. You agree that any information you provide will always be accurate, correct, and up to date. 

6.3 You will not engage in any inappropriate conduct in connection with your use of any Platform Resources, including (a) uploading, posting, submitting, sharing or otherwise distributing any content that infringes upon any intellectual property right of any party or contains any type of unauthorized or unsolicited advertising; and (b) violating applicable law, violating the rights of any person, engaging in behavior that is illegal, threatening, defamatory, abusive, harassing, intimidating, fraudulent, deceptive, invasive, racist, sexist, hateful or offensive, and distributing content that contains any type of suggestive, inappropriate, or explicit language or images. 

7. Idea Submission.

If you have any intellectual property (including concepts, ideas, inventions, works of authorship, information, suggestions, and proposed product improvements) that you would like to present to us, you will not submit such intellectual property to us unless we have first signed a written agreement with you regarding the disclosure of such intellectual property to us. If you disclose any such intellectual property to us absent such written agreement, we will have a perpetual, irrevocable, worldwide, transferrable, sublicensable, royalty-free, paid-up, non-exclusive license to use, reproduce, distribute, perform, display, create derivatives of, modify, make, use, monetize, market, sell, offer for sale, import, export and commercialize such intellectual property. Such license will automatically become effective when you make such disclosure to us absent such written agreement.

8. Usage Period and Termination of Use

8.1 You may use our Platform for the designated period of time that we have specified for you under a separate, written Platform Services Agreement with you or the Organization (“Usage Period”). Your right to use our Platform Resources will automatically terminate upon the expiration of the Usage Period except to the extent we have provided you with our written consent to extend the Usage Period. 

8.2 Before the Usage Period ends, we may immediately suspend, limit or terminate your access to, or use of, our Platform or any Platform Resources if we suspect that you have infringed upon the rights of a third party, violated these Terms, or engaged in any wrongdoing. 

9. Warranty Waiver and Limitation of Liability

9.1 TO THE EXTENT PERMITTED BY APPLICABLE LAW, (A) ALL PLATFORM RESOURCES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, (B) WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT RELATING TO THE PLATFORM RESOURCES, AND (C) WE MAKE NO WARRANTY THAT ANY PLATFORM RESOURCES WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY OR ERROR-FREE BASIS. 

9.2 TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL WE BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING ANY DAMAGES FOR LOSS OF PROFITS OR REVENUE, LOSS OF DATA, OR LOSS OF OR HARM TO PROPERTY OR DATA) INCURRED BY YOU OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT, ARISING FROM YOUR ACCESS TO, OR USE OF, ANY PLATFORM RESOURCES. 

10. Indemnification.

You hereby indemnify and will defend and hold us and our affiliates harmless from, against, and in respect of any and all losses, claims, damages, costs, expenses, reasonable attorneys’ fees, and other liabilities incurred, experienced or owed by or asserted against us by reason of or arising, directly or indirectly, from your breach of these Terms, your violation of applicable law, your negligence, fraud or other intentional wrongdoing, or any unauthorized access to any Platform Resources, Credentials, or Organization Devices arising from your act or omission. 

11. Privacy Policy.

We take your privacy seriously and have developed a policy to address privacy concerns. For more information, please see our Privacy Policy.

12. Export Restrictions/Legal Compliance.

You may not access, download, use, or export any Platform Resources, or any content provided on or through our Platform, in violation of U.S. export laws or regulations, or in violation of any other applicable laws or regulations. You agree to comply with all export laws, restrictions, and regulations of any United States or applicable agency or authority, and to not directly or indirectly provide or otherwise make available any Platform Resources in violation of any such restrictions, laws, or regulations, including laws, restrictions or regulations pertaining to the development, design, manufacture or production of nuclear, chemical or biological weapons or missile technology. As applicable, you will obtain and bear all expenses related to any necessary licenses, authorizations, and/or exemptions with respect to your own use of our Platform Resources outside the U.S. Neither our Platform Resources nor the underlying information or technology may be downloaded or otherwise provided or made available, either directly or indirectly, into any country subject to U.S. trade sanctions, to individuals or entities controlled by such countries, or to nationals or residents of such countries other than nationals who are lawfully admitted permanent residents of countries not subject to such sanctions. By agreeing to these Terms, you agree to the foregoing and represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list.

13. Miscellaneous

13.1 This Agreement will be governed by and construed in accordance with the laws of the State of New York without giving effect to any conflict of laws principles. In the event of any dispute, claim, controversy or difference arising from, under, out of, relating to, or in connection with these Terms, their interpretation, or the breach, applicability or validity of these Terms (collectively, “Disputes”), each of the parties hereto (you and us) will have the right to submit the applicable Dispute to JAMS for binding resolution if the parties are unable to resolve the Dispute in writing within ten (10) business days of discussion and consultation. The arbitration will be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures. The Dispute will be resolved exclusively and finally by JAMS. The parties will agree upon another arbitration forum if JAMS ceases all of its operations. The arbitration will be conducted by and before three (3) neutral arbitrators. The parties will confer to mutually select the arbitrators. If the parties are unable to agree upon the arbitrators within thirty (30) days after the Dispute is submitted to JAMS, JAMS will independently assign the arbitrators. The arbitrators will apply the laws of the State of New York and no other state, excluding its conflict of law principles. The arbitrators will not have the right to award treble damages, punitive damages or attorneys’ fees to either party. The location of the arbitration will be exclusively within Onondaga County of the State of New York. The decision or award rendered in the arbitration will be final and binding on the parties, and judgment may be entered thereon in any federal or state court having jurisdiction. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ALL RIGHT TO TRIAL BY JURY FOR ANY AND ALL DISPUTES AS WELL AS ALL RIGHT TO FILE ANY LAWSUIT OR INITIATE ANY LEGAL PROCEEDING OTHER THAN ARBITRATION UNDER THIS SECTION. THIS WAIVER WILL BE IRREVOCABLE AND PERPETUAL. EACH PARTY UNDERSTANDS AND ACKNOWLEDGES THAT: (A) IN THE ABSENCE OF THIS SECTION, IT WOULD HAVE HAD A RIGHT TO LITIGATE DISPUTES THROUGH A JURY TRIAL; AND (B) THIS WAIVER IS A SUBSTANTIVE TERM BARGAINED BY EACH PARTY AS CONSIDERATION FOR ENTERING INTO THESE TERMS. This Section will be governed by the Federal Arbitration Act (Title 9 U.S. Code Section 1 et. seq.).  

13.2 Notwithstanding anything in these Terms to the contrary, in the event your breach or threatened breach of Article 3, 4, 5, or 12 of these Terms, you acknowledge that our remedies at law would be inadequate and that we would suffer continuing and irreparable injury to our businesses and opportunities, and therefore, in the event of any such violation or threatened violation, we will be entitled, in addition to any other remedies available, to seek a temporary restraining order and other injunctive relief without any requirement to prove actual damages or to post a bond, and we will be entitled to any other appropriate equitable relief that the court deems proper.

13.3 You will not assign these Terms, in whole or in part, to any third party. Any purported assignment in violation of this Section will be null and void. Our delay or failure to exercise or enforce any right or provision in these Terms will not prejudice or operate to waive such right or provision. If any part or provision of these Terms is found to be unenforceable under applicable law, such part or provision will be modified to make these Terms, as modified, legal, and enforceable. The balance of these Terms will not be affected. If arbitrators or any court deems any provision of these Terms unenforceable because of its scope regarding disclaimer, waiver, limitation, time, restrictions, ownership, or other matters, the arbitrators or such court will have the power to modify such provision, through reductions or limitations thereon or to delete specific words or phrases. In its reduced form, such provision will then be enforceable and will be enforced under applicable law.  

14. Contact Information.

You may contact us regarding these Terms through our contact page or by writing or emailing us at the following address:

Vital Dynamix LLC
91 Main Street
Canton, New York 13617
legal@vitaldynamix.com

15. Updates of these Terms.

As noted above, we may update these Terms from time to time. The date provided at the beginning of these Terms is the latest revision date of these Terms. To request a prior version of these Terms, please contact us.

16. Electronic Signature.

As noted above, you will be bound by these Terms upon the earlier of earlier of: (a) clicking the “accept” or “agree” selector accompanying these Terms; or (b) accessing our Platform via the interface that displays these Terms. To demonstrate your assent to these Terms, we may require you to perform such clicking or input of your Credentials into our Platform. Such clicking or input of your Credentials, whichever occurs first, will constitute your electronic signature, and you acknowledge that such electronic signature is equivalent to your handwritten signature.

© 2023 Vital Dynamix LLC