Terms of Service

Introduction

Vivo Health LLC (“Vivo,” “we,” “us,” or “our”) owns and operates the website located at https://www.vivoclinic.org/ and its subdomains (collectively, the “Sites”). The Sites are intended to facilitate the provision of the Services to registered users.

The “Services” include: (i) providing individuals with information on health care and wellness (“Content”); (ii) administrative and technology support enabling individuals to access licensed clinicians and pharmacy services; (iii) the development, gathering, and retention of health care information for use in clinical evaluation, communications, and pharmacy services; (iv) administrative support in connection with payment for clinical services and pharmacy services; and (v) telecommunications support enabling communication, consultation, assessment, and treatment by Arora Health & Aesthetics, LLC and its affiliated clinicians.

These Terms of Service (“Terms”) describe your rights and responsibilities with regard to the Sites. Your access to and use of the Sites is subject to these Terms, our Privacy Policy, our Refund & Cancellation Policy, our Telehealth Informed Consent, and all applicable laws and regulations. In these Terms, “you” and “yours” refer to the person using the Services.

If you do not accept and agree to be bound by these Terms, you are not authorized to access or otherwise use the Sites, the Services, or any information or Content provided through them.

Changes. We may update these Terms. Material changes will be posted with a revised date of last revision and communicated by email at least 30 days before they take effect, where we have your email address. Continued use after the effective date constitutes acceptance. Changes do not apply retroactively to a dispute that arose before the change.

Availability

The Services are currently available to individuals located in all 50 U.S. states. Availability is subject to state regulation and may change from time to time. See our FAQ for current coverage.

Eligibility

In order to qualify to use the Services, all of the following must be true:

• You are 18 years of age or older (or the age of majority in your state, if higher). The Services are not available to minors under any circumstance, including with the consent of a parent or guardian.
• You are physically located in a state where the Medical Group and the Pharmacy are authorized to operate, at the time of your intake and at the time of each refill.
• You have the legal capacity to enter into a binding contract.
• You provide accurate, complete, and current information about your identity and health history.
• You are seeking the Services for yourself only.
• You agree to be legally bound by and comply with these Terms.

You represent that when you complete an intake or a reassessment, you are physically located in the same state as the shipping address on your account.

You may not use the Services on behalf of another person, obtain a prescription for anyone other than yourself, or resell, redistribute, share, or divert any medication obtained through the Services to any other person. Doing so may be a criminal offense and will result in immediate termination.

You understand and agree that satisfying the above requirements does not guarantee that you will receive Services, or that any medication will be prescribed to you. See “Your relationship with Vivo Health LLC” below.

Requirements for use

You are responsible for providing and maintaining, at your own expense, a compatible computing or mobile device, access to the Internet, and any necessary software in order to use the Sites. Fees and charges may apply to your use of mobile services and the Internet. You have a duty to provide truthful, accurate, and complete information in any form or communication you submit to or through the Services.

You acknowledge and agree that: (1) all or any part of the Sites may be inaccessible at any time, for any period, or for any reason; and (2) Vivo will not be liable if for any reason all or any part of the Sites are unavailable.

Special consent to telehealth services

Telehealth involves the delivery of health care services using electronic communications, information technology, or other means between a health care provider and a patient who are not in the same physical location. Telehealth may be used for evaluation, treatment, follow-up, and related patient education, and may include, but is not limited to:

• Electronic transmission of medical records, photographic images, personal health information, or other data between a patient and a health care provider;
• Interactions between a patient and a health care provider via audio, video, and/or data communications; and
• Secure messaging for follow-up questions and reassessment.

The electronic systems used in the Services incorporate network and software security protocols to protect the privacy and security of health information, and include measures to safeguard that data against intentional or unintentional corruption.

Please see our Telehealth Informed Consent for a description of the risks, benefits, and limitations of telehealth. The Telehealth Informed Consent is incorporated into these Terms by reference and constitutes a part of these Terms. You must review and agree to it before receiving clinical services.

Privacy policy and health information

Vivo understands the importance of confidentiality and privacy regarding your health information. Please see:

• Our Privacy Policy, available on the Sites, for a description of how we collect, use, and disclose your personal information; and
• The Notice of Privacy Practices adopted by Arora Health & Aesthetics, LLC, for a description of how that entity uses and discloses your medical information and how you may access it.

Both are incorporated into these Terms by reference and constitute a part of these Terms. By using the Services, you acknowledge receipt of the Notice of Privacy Practices.

Vivo is not a “covered entity” under HIPAA. The Medical Group and the Pharmacy are. The information you provide to register and administer your account — your name, email address, shipping address, phone number, and transactional information — is not protected health information, and is handled under our Privacy Policy. The clinical information you submit through an intake is protected health information; Vivo accesses it solely as a Business Associate of the Medical Group and the Pharmacy, under a written Business Associate Agreement, and only to perform administrative services on their behalf.

Requests concerning your medical record must be directed to the Medical Group’s Privacy Officer as described in the Notice of Privacy Practices. Vivo cannot fulfill a request for your medical record.

Where these Terms or the Privacy Policy conflict with the Notice of Privacy Practices as to protected health information, the Notice of Privacy Practices governs.

Your relationship with Vivo Health LLC

This section is the most important part of these Terms. Please read it before anything else.

Vivo does not provide any medical services, does not practice medicine, does not provide medical advice, and does not dispense medication. Vivo provides a technology and administrative platform through which you may access a health care provider, and obtain access to additional information which you may or may not choose to use in planning your health care and wellness.

The Services coordinate three independent parties:

You understand and agree that:

• You are not entering into a provider-patient relationship with Vivo. By consulting with a Clinician through the Services, you may establish a provider-patient relationship with the Medical Group and/or one or more Clinicians — but not with Vivo.
• Vivo does not control or intervene in the practice of medicine. Vivo has no authority over whether you are prescribed anything, what you are prescribed, or at what dose. The Clinicians are solely responsible for directing the care and treatment they provide and retain full and independent clinical autonomy.
• Vivo does not control or interfere with the professional services provided by the Pharmacy, which is solely responsible for its own professional services.
• A purchase is not a guarantee of a prescription. Submitting an intake and paying does not entitle you to medication. If a Clinician determines that a product is not clinically appropriate for you, no prescription will be issued. See the Refund & Cancellation Policy — in that circumstance you receive a full refund.
• Vivo is not an insurer and does not bill insurance. All services are self-pay.
• The health and wellness resources made available through the Services are not a substitute for in-person health care in all cases. The decision to pursue evaluation, treatment recommendations, or both rests with you and your Clinician.

Services you receive from the Medical Group, the Clinicians, or the Pharmacy through the Sites are also governed by these Terms, and those parties are third-party beneficiaries of these Terms. See “Third-party beneficiaries” below.

Medical Group contact: Arora Health & Aesthetics, LLC — contact information is provided in the Notice of Privacy Practices.

The intake and prescription process

• Intake. You complete a health questionnaire and provide your medical history, current medications, allergies, and other clinical information.
• Clinical review. A Clinician reviews your intake. The Clinician may request additional information, laboratory results, or a live visit before making a determination.
• Determination. The Clinician either issues a prescription, requests more information, or declines to prescribe. A decline is a clinical outcome, not a service failure.
• Fulfillment. If a prescription is issued, it is transmitted to the Pharmacy, which compounds and ships the medication to the address you provide.
• Ongoing care. Continued refills require periodic reassessment on a cadence determined by the Clinician and applicable law. Prescriptions expire. Refills are not automatic in perpetuity.

Accuracy of your information is a condition of service. Your Clinician does not have access to your complete medical records. Withholding or misstating health information may result in an unsafe clinical determination, an adverse drug interaction, or an allergic reaction. You accept sole responsibility for the accuracy of what you submit.

Compounded medications — required disclosure

Certain products offered through the Services are compounded preparations. You acknowledge and agree that:

• Compounded medications are prepared by a licensed 503A pharmacy pursuant to a patient-specific prescription.
• Compounded medications are not approved by the FDA. The FDA does not review compounded preparations for safety, effectiveness, or manufacturing quality prior to marketing.
• Compounded preparations may differ from any commercially available product.
• Compounded medications require a valid prescription from a licensed Clinician.
• Individual results vary, and no outcome is guaranteed.

Nothing on the Sites should be interpreted as a claim that any compounded product is approved, endorsed, or evaluated by the FDA.

Communications by text message and email

Consent to electronic communications. By accepting these Terms, you consent to Vivo, the Medical Group, the Clinicians, and the Pharmacy sending you disclosures, notices, messages, reports, and other communications electronically. You agree that all agreements, notices, disclosures, and other communications provided to you electronically satisfy any legal requirement that they be in writing, and are deemed given and received on the date transmitted. It is your responsibility to monitor these communications.

Text messages. Your consent to receive calls, SMS, and MMS — including messages placed using an automatic telephone dialing system or a pre-recorded or artificial voice — is described in the Telehealth Informed Consent. These messages may include order confirmations, shipping notifications, messages from your Clinician, and other transactional messages, as well as promotional and marketing notifications to the extent you have opted in.

With your enrollment, you represent and understand that: (1) you are the owner or authorized user of the mobile device used to enroll; (2) you are authorized to approve any applicable charges in connection with those messages; (3) you are responsible for all messaging and data charges that may apply; and (4) neither Vivo nor any mobile carrier will be liable for delayed or undelivered messages.

Access to the Services is not conditioned upon your consent to receive marketing or promotional text messages. You may opt out at any time by replying STOP from the mobile device subscribed to receive them; reply HELP for assistance. After you send STOP, we may send one final message confirming that you have been unsubscribed. If you have opted in to more than one type of message, you will need to opt out of each.

Email and text messages are not encrypted. Transmission of information over the internet and mobile networks is not 100% secure, which means messages may be intercepted by third parties. If you choose to send or receive information about your health or any other sensitive information by text message or email, you do so at your own risk. For anything sensitive, use the secure messaging function inside your account.

If you are experiencing issues with our text messaging or email services, or have concerns about sending or receiving sensitive information through them, contact us at care@vivoclinic.org. For questions about your text or data plan, contact your wireless provider.

Consultative service

A Clinician consulting with you through the Services may not have the benefit of information that would be obtained by examining you in person and observing your physical condition. Therefore, the Clinician may not be aware of facts or information that could affect their opinion regarding a potential evaluation or treatment recommendation. To reduce this risk, Vivo strongly encourages you to provide all relevant information and to discuss any and all evaluation and treatment options with your Clinician.

A Clinician may also be limited by state law in prescribing certain medications without first conducting an in-person physical examination.

By deciding to engage the Services, you acknowledge and agree that you are aware of these limitations and assume the risk of them. You further agree and accept that:

• Any evaluation you may receive is limited and, in some cases, provisional;
• The clinical services are not intended, in all cases, to replace a full medical evaluation or an in-person visit;
• A Clinician acting through the Services may not have important information usually obtained through a hands-on physical examination; and
• The absence of a physical examination may affect the Clinician’s ability to identify a potential condition, disease, or injury.

Your Clinician may determine that the Services are not appropriate for you and may decline to prescribe and refer you for in-person evaluation. This is a valid and expected outcome.

Site content

Except for specific communications you receive directly from the Medical Group or a Clinician, none of the Content you receive through the Sites should be considered medical advice. Content — including product pages, educational material, blog posts, footnoted citations, and FAQs — is for general informational purposes only. It is not a substitute for consultation with a qualified health care professional. Never disregard or delay seeking professional medical advice because of something you read on the Sites.

Users relying on Content do so at their own risk.

Registration and user accounts

Although certain parts of the Sites are accessible to any individual, you must register in order to access the Services. If you register, you agree to provide information that is accurate, complete, and correct, and to accurately maintain and update it. If you do not maintain such information, or if we have reasonable grounds to suspect as much, we have the right to suspend or terminate your account and your use of the Services.

You agree to immediately notify Vivo at care@vivoclinic.org of any unauthorized use of your username or password, or any other breach of security involving the Services. Vivo may take any actions it deems necessary or reasonable to maintain the security of the Sites, the Services, and your account.

You agree to keep your username and password confidential and to log out of your account at the end of each session. You are responsible for all activity that occurs under your account. You are responsible for changing your password promptly if you believe it has been compromised. You may not transfer or share your password with anyone, create more than one account, or use anyone else’s account at any time. Persons with access to your computer, phone, or other devices may be able to access the Services and information about you, including health information. It is your responsibility to secure your devices. Vivo explicitly disclaims liability for any losses and damages arising from your failure to comply with this section.

Access rights and prohibited use

Subject to your compliance with these Terms, we grant you a personal, limited, revocable, non-exclusive, and non-transferable right to view, access, and use the Sites in the United States, and to use the Services solely for your personal and non-commercial use, and only as permitted under these Terms, the Telehealth Informed Consent, and the Privacy Policy. No other right, title, or interest in or to the Sites is transferred to you, and all rights not expressly granted are reserved by Vivo or its licensors. We reserve the right, in our sole discretion, to deny or suspend use of the Sites or Services to anyone for any lawful reason.

You agree that you will not, and will not attempt to:

• (a) impersonate any person or entity or otherwise misrepresent your affiliation with a person or entity, or provide false, misleading, or another person’s information;
• (b) attempt to obtain a prescription for anyone other than yourself;
• (c) resell, distribute, share, or divert any medication obtained through the Services;
• (d) attempt to circumvent a clinical decline by submitting a new or altered intake;
• (e) use the Sites or Services to violate any local, state, national, or international law;
• (f) reverse engineer, disassemble, decompile, or translate any software or other component of the Sites;
• (g) distribute, upload, transmit, or propagate any virus, Trojan horse, or other harmful code;
• (h) access or use the Sites in any manner that infringes, misappropriates, or violates any intellectual property right or other right of any third party;
• (i) license, sublicense, sell, resell, transfer, assign, distribute, or otherwise commercially exploit the Sites, Services, or related materials;
• (j) use or access the Sites to create or develop competing products or services;
• (k) take any action that could damage, destroy, disrupt, disable, impair, overburden, or interfere with the Sites or any Content;
• (l) disrupt, interfere with, violate the security of, or attempt to gain unauthorized access to the Sites or any computer network;
• (m) bypass, breach, remove, deactivate, impair, or otherwise circumvent any security device or technological measure protecting the Sites;
• (n) probe, scan, or test the vulnerability of the Sites or any related network or system;
• (o) remove, delete, alter, or obscure any trademark, warranty, disclaimer, or copyright, patent, or other proprietary rights notice;
• (p) use any manual process or automated device — including any robot, spider, or scraper — to monitor or copy Content for any unauthorized purpose;
• (q) harvest or collect information about other users;
• (r) otherwise use the Sites in any manner that exceeds the scope of use granted above; or
• (s) encourage or enable any other individual to do any of the foregoing.

We reserve the right to take whatever lawful action we deem appropriate in response to actual or suspected violations, including suspension or termination of your account, and we may cooperate with legal authorities in the investigation of any suspected crime.

Right to monitor. We may monitor general use of the Sites and remove material that we reasonably believe is unlawful, exposes us to liability, or violates these Terms.

Ownership of information submitted via the sites

You retain ownership of the information you submit. Vivo does not claim ownership of your personal information, your health information, or your intake responses, and does not acquire any right to sell, license, publish, broadcast, or commercially exploit them. We do not require you to waive moral rights in anything you send us, and we do not claim the right to alter your submissions and attribute them to you.

• Health information you submit is protected health information, handled under HIPAA and the Notice of Privacy Practices. Vivo accesses it only as a Business Associate and uses it only to perform administrative services on behalf of the Medical Group and the Pharmacy.
• Non-health personal information you submit is handled under our Privacy Policy.

Content you voluntarily submit for publication is different. If you submit a review, testimonial, photograph, or other content for publication, you grant Vivo a non-exclusive, worldwide, royalty-free, perpetual, transferable license to use, reproduce, modify, and display that content in connection with the Sites and their marketing. You represent that you own or control the rights to what you submit and that it is truthful and based on your actual experience. Content submitted for publication is not confidential — please do not include health information you do not want made public.

We may decline to publish, or may remove, content that is false, misleading, makes unsupported medical claims, or violates applicable advertising law. We do not compensate anyone for a positive review.

Ownership of site content

As between Vivo and you, Vivo is the sole and exclusive owner of all right, title, and interest in and to the Sites and their content, features, and functionality — including all information, software, text, displays, images, video, audio, design, selection, arrangement, and look and feel — and all intellectual property rights therein.

You are not permitted to reproduce, publish, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store, transmit, sell, or exploit in any way, in whole or in part, any material on the Sites, except as generally and ordinarily permitted through the Sites in accordance with these Terms. Any copy, modification, revision, enhancement, adaptation, translation, or derivative work of the Sites or Content is owned solely and exclusively by Vivo or its licensors. You may not access or use any part of the Sites or Content for any commercial purpose.

Trademarks

Certain names, logos, and other materials displayed on the Sites constitute trademarks, trade names, service marks, or logos (“Marks”) of Vivo. You are not authorized to use any such Marks without the express written permission of Vivo. Ownership of all such Marks and the goodwill associated with them remains with us. Other trademarks, service marks, and trade names that may appear on the Sites are the property of their respective owners.

Links to third-party hyperlinks and websites

The Sites may contain hyperlinks or references to other websites (“Linked Sites”) operated by third parties. Linked Sites are not under our control, and we are not responsible for the information, products, or services described on them, for their content, or for any changes or updates to them. We provide Linked Sites only as a convenience, and the inclusion of any link does not imply endorsement of the Linked Site or any association with its operators. Your use of Linked Sites is at your own risk, and we are not liable to you, directly or indirectly, for any content, error, damage, or loss caused by or in connection with your use of or reliance on information contained in or provided to Linked Sites.

Pharmacy services

If a Clinician issues you a prescription through the Services, it will be transmitted to the Pharmacy, which will compound, dispense, and ship your medication.

You consent to Vivo sending and disclosing to the Pharmacy the information you have provided, your health care records, and other applicable health care and personal information — including your name, location, and demographic information — so that you may receive pharmacy services.

If you request that a prescription be filled by a pharmacy other than the Pharmacy, and the Clinician determines it is appropriate to do so, the prescription will be sent to your selected pharmacy. In that case, you will be responsible for obtaining the medication and paying that pharmacy directly, and the cost of the medication will not be included in the amount charged by Vivo.

Packaging and fulfillment

Medication ships from the Pharmacy in temperature-regulated packaging. Delivery dates and times shown during checkout are estimates only and are not guaranteed. Title and risk of loss pass upon delivery to the address you provide.

Medication is dispensed in child-resistant packaging unless you affirmatively request otherwise and the Pharmacy accepts that request as permitted by law. You are responsible for keeping all medication in a safe and secure location away from children and others.

You are responsible for the accuracy of your shipping address and for retrieving your package promptly. Temperature-sensitive medication left undelivered, refused, or unretrieved may be compromised and cannot be reshipped without an additional charge. Vivo is not responsible for carrier delays, weather events, or address errors.

Subscriptions, automatic renewal, and cancellation

Please read this section carefully. It describes a recurring charge.

• Enrollment. Certain products are offered on an automatically renewing subscription basis. When you enroll, you authorize Vivo (or its payment processor) to charge your payment method on a recurring basis at the price and interval disclosed at checkout, until you cancel.
• Billing interval and amount. For example, $149.00 per month, billed on the same calendar day each month, plus applicable taxes and shipping as disclosed at checkout. The exact amount and interval are disclosed to you at checkout before you are charged. Prices are subject to change on 30 days’ notice; changes apply to subsequent billing cycles.
• Acknowledgment. After enrollment, we send you an acknowledgment email containing the subscription terms, the recurring amount, the billing interval, and instructions for cancellation.
• Cancellation. You may cancel at any time, online, through your account dashboard, in the same number of steps and the same medium it took to enroll — no phone call, no chat, no retention gauntlet. You may also cancel by emailing care@vivoclinic.org.
• Effect of cancellation. Cancellation takes effect at the end of the then-current billing period, provided it is received before that period’s order has been transmitted to the Pharmacy. Once an order is transmitted and compounded, it cannot be recalled or refunded.
• Failed payments. If your payment method fails, we may retry, pause your subscription, and/or terminate it.
• Continuity is conditional on clinical eligibility. A subscription does not guarantee an ongoing prescription. If a Clinician determines that continued therapy is no longer appropriate, or if you fail to complete a required reassessment, your subscription will be paused or terminated regardless of billing status, and you will not be charged for any cycle not shipped.

Cancellation, refunds, returns, pausing, and our exceptions for damaged, wrong, lost, or misfilled orders are governed in full by the Refund & Cancellation Policy, which is incorporated into these Terms. Where these Terms and the Refund & Cancellation Policy address the same subject, the Refund & Cancellation Policy controls.

Payment

You agree to pay all fees due for the services you request. You will be prompted for your payment details, including your card information and any promotional codes. By entering your payment information and submitting your request, you authorize us or our third-party payment processor to charge the amount due.

You see a single total price. That total includes amounts charged by the Medical Group for the clinical evaluation and by the Pharmacy for the medication dispensed, which Vivo collects on their behalf and remits to them, as itemized at checkout. Any services not made available through the Services are not included, and you may be separately charged for them.

• All prices are in U.S. dollars.
• Payment method. You represent that you are authorized to use the payment method you provide.
• Card updater services. Your card issuer may automatically provide us and our payment processor with updated card information — such as a new card number or expiration date — when your card is reissued or expires. If that happens, we may update your account and use the new information for future charges, including subscription renewals. Your issuer may allow you to opt out of this service; contact your issuer to do so.
• Failed payments. If your card expires or your payment cannot be processed, you may receive notice asking you to provide an alternative payment method.
• Pricing errors. If a price or product detail is displayed in error, we may correct it and revise your order accordingly, or cancel the order and refund any amount charged, before fulfillment.
• Availability. Products are subject to availability. We may limit quantities or decline all or part of an order.
• Taxes. You are responsible for any applicable sales or use tax. We collect tax where we determine we have a duty to do so; the amount shown at checkout is an estimate and may be adjusted.
• Promotions. Promotional pricing, introductory offers, and discount codes are one-time unless expressly stated, may not be combined, and renew at the standard rate.
• Payment is processed by a third-party processor. Vivo does not store full payment card numbers.

Neither Vivo, the Medical Group, nor the Pharmacy has any obligation to provide services unless and until payment has been received and verified. However, payment does not guarantee a prescription — see “Your relationship with Vivo Health LLC” above and the Refund & Cancellation Policy.

Not health insurance

The Services are not health insurance, are not a substitute for health insurance, do not satisfy any individual health coverage requirement under federal or state law, and cannot replace your in-person provider relationships. You should keep your existing health insurance coverage while using the Services, or obtain coverage if you do not currently have it.

Special notice to Medicare and Medicaid beneficiaries

Federal and state health care programs, such as Medicare and Medicaid, do not pay for all health care costs — even for some services and products that you or your health care provider have good reason to think you need. If you are a beneficiary of a federal or state health care program and that program does not pay for certain services or products rendered to you, you may have to pay for them.

Vivo and the Medical Group are not enrolled in, and do not participate as providers in, any federal or state health care program for the provision of any health care service, product, or supply. Neither you nor Vivo, the Medical Group, the Clinicians, or the Pharmacy may receive payment from such a program for anything provided to you through the Services. To the extent the Pharmacy or any Clinician is enrolled in a federal or state health care program, the manner in which services and products are provided through the Services typically prevents them from being covered benefits under those programs.

By choosing to use the Services, you are specifically electing to obtain all services and items on a self-pay basis, outside of any federal or state health care program. By agreeing to use the Services, you acknowledge and agree that:

• You will pay directly for any services and products provided to you, and you are solely financially responsible for them; and
• Neither you nor Vivo, the Medical Group, the Clinicians, or the Pharmacy will submit any claim for reimbursement to any federal or state health care program for those services or products.

Modifications to the sites

Vivo reserves the right at any time to modify, or temporarily or permanently discontinue, the Sites or Services or any portion of them, with or without notice. You agree that Vivo shall not be liable to you or to any third party for any modification, suspension, or discontinuance of the Sites or Services. Where we discontinue the Services entirely, we will provide reasonable notice so that you may find a local provider with whom to continue treatment.

Termination

These Terms remain in full force and effect as long as you continue to access or use the Sites or Services. You may terminate at any time by discontinuing use of the Sites and cancelling any subscription. Your permission to use the Sites automatically terminates if you violate these Terms.

Vivo may terminate or suspend any of the rights granted by these Terms, and your access to and use of the Sites or Services, with or without prior notice, for any violation of these Terms, if our agreement with the Medical Group or the Pharmacy terminates, if we discontinue the Services, or for any lawful reason.

The following provisions survive termination: Your relationship with Vivo Health LLC; Compounded medications; Site content; Privacy policy and health information; Ownership of information submitted via the sites; Ownership of site content; Trademarks; Not health insurance; Special notice to Medicare and Medicaid beneficiaries; Disclaimer of warranties; Limitation of liability; Indemnification; Governing law, dispute resolution, arbitration, venue, severability of provisions; Third-party beneficiaries; No waiver; No agency relationship; Remedies; and Assignment.

Subject to applicable law, Vivo may maintain, delete, or destroy communications and materials posted or uploaded to the Sites pursuant to its internal record retention policies.

After termination, Vivo has no further obligation to provide the Services — except that the Medical Group and the Pharmacy remain independently obligated to provide you access to your health records and any continuing care required under their own legal, ethical, and professional obligations to you. Termination does not affect your medical record, which is retained by the Medical Group and the Pharmacy under their state-law retention schedules.

You agree that if your use of the Services is terminated pursuant to these Terms, you will not attempt to use the Services in any way, and that if you violate this restriction after termination, you will indemnify and hold Vivo harmless from any liability Vivo may incur as a result.

Disclaimer of warranties

YOU EXPRESSLY AGREE THAT USE OF THE SITES IS AT YOUR SOLE RISK. YOU ACKNOWLEDGE AND AGREE THAT THE SITES AND ANY SERVICES PROVIDED THROUGH THE SITES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS.

VIVO, THE MEDICAL GROUP, THE CLINICIANS, THE PHARMACY, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, MANAGERS, PARTNERS, MEMBERS, EMPLOYEES, AND AGENTS (COLLECTIVELY, “RELATED PERSONS”) MAKE NO REPRESENTATIONS OR WARRANTIES AND EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE SITES AND SERVICES — INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, NON-INFRINGEMENT, TITLE, AVAILABILITY, SECURITY, OPERABILITY, CONDITION, QUIET ENJOYMENT, VALUE, ACCURACY OF DATA, FREEDOM FROM VIRUSES OR MALWARE, COMPLETENESS, TIMELINESS, FUNCTIONALITY, RELIABILITY, OR SPEED OF DELIVERY.

VIVO MAKES NO WARRANTY REGARDING ANY HEALTH OUTCOME. INDIVIDUAL RESULTS VARY. NOTHING ON THE SITES IS A GUARANTEE, PROMISE, OR REPRESENTATION THAT ANY PRODUCT WILL DIAGNOSE, TREAT, CURE, OR PREVENT ANY CONDITION.

VIVO IS NOT RESPONSIBLE FOR THE ACTS OR OMISSIONS OF THE MEDICAL GROUP, ANY CLINICIAN, OR THE PHARMACY. THOSE PARTIES ARE INDEPENDENT AND SOLELY RESPONSIBLE FOR THEIR OWN CLINICAL AND PHARMACY SERVICES.

TO THE FULLEST EXTENT OF APPLICABLE LAW, NEITHER VIVO NOR ITS RELATED PERSONS WILL BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY YOUR RELIANCE ON INFORMATION OBTAINED THROUGH THE SITES. IT IS YOUR RESPONSIBILITY TO EVALUATE THE ACCURACY, COMPLETENESS, TIMELINESS, RELIABILITY, OR USEFULNESS OF THE SITES. VIVO DOES NOT GUARANTEE THAT THE SITES WILL BE UNINTERRUPTED OR FREE FROM ERROR, DEFECT, LOSS, DELAY, CORRUPTION, CYBER ATTACK, VIRUSES, INTERFERENCE, HACKING, MALWARE, OR OTHER SECURITY INTRUSION, AND DISCLAIMS ANY LIABILITY RELATING THERETO.

Some jurisdictions do not allow the exclusion of implied warranties; in those jurisdictions, the above exclusions apply to the maximum extent permitted.

Limitation of liability

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, VIVO AND ITS RELATED PERSONS AND LICENSORS WILL NOT BE LIABLE TO YOU OR TO ANY PARTY FOR ANY CLAIMS, LIABILITIES, LOSSES, COSTS, OR DAMAGES UNDER ANY LEGAL OR EQUITABLE THEORY — WHETHER IN TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), CONTRACT, WARRANTY, STATUTE, OR OTHERWISE — INCLUDING ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES, INCLUDING DAMAGES FOR LOSS OF REVENUES, PROFITS, GOODWILL, USE, OR DATA, SERVICE INTERRUPTION, COMPUTER OR MOBILE PHONE DAMAGE, SYSTEM FAILURE, OR THE COST OF SUBSTITUTE PRODUCTS OR SERVICES, ARISING OUT OF OR IN CONNECTION WITH ANY ACCESS TO OR USE OF (OR INABILITY TO USE) THE SITES OR ANY SERVICES PROVIDED THROUGH THE SITES. THIS IS TRUE EVEN IF VIVO OR ITS RELATED PERSONS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES.

VIVO’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THESE TERMS OR THE SERVICES WILL NOT EXCEED THE GREATER OF (A) THE AMOUNTS YOU PAID TO VIVO IN THE SIX (6) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM, OR (B) ONE HUNDRED U.S. DOLLARS ($100).

Nothing in these Terms limits or excludes liability that cannot be limited or excluded under applicable law, including liability for gross negligence, fraud, willful misconduct, or violation of law, and including any liability for personal injury or death to the extent applicable law prohibits its limitation. To the extent we may not, as a matter of applicable law, disclaim any implied warranty or limit liability, the scope and duration of such warranty and the extent of our liability will be the minimum permitted under that law.

Indemnification

You agree to indemnify, defend, and hold harmless Vivo, the Medical Group, the Clinicians, and the Pharmacy, and their respective members, directors, officers, employees, contractors, licensors, suppliers, representatives, partners, shareholders, principals, agents, successors, assigns, accountants, and attorneys, from and against any and all third-party suits, actions, claims, proceedings, damages, settlements, judgments, injuries, liabilities, obligations, losses, risks, costs, and expenses (including reasonable attorneys’ fees, litigation expenses, and accounting fees) relating to or arising from, or alleged to arise from:

• your use of the Sites or Services in an unauthorized manner;
• your fraud, violation of law, or willful misconduct;
• your provision of false or incomplete health information;
• your diversion or misuse of any medication obtained through the Services; or
• any breach by you of these Terms.

We reserve the right to control the defense of any claim for which we are entitled to indemnification, and you agree to cooperate reasonably with us.

Governing law; dispute resolution; arbitration; venue; severability of provisions

PLEASE READ THIS SECTION CAREFULLY. IT SIGNIFICANTLY AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.

Governing law. These Terms and your use of the Sites are governed by the laws of the State of California, without giving effect to principles of conflict of laws — except that the Federal Arbitration Act governs this dispute resolution section.

This section survives termination of these Terms and your relationship with Vivo.

What counts as a “Dispute”

“Dispute” means any dispute, claim, or controversy between you and Vivo, the Medical Group, any Clinician, or the Pharmacy arising out of or relating to these Terms, your access to or use of the Sites or Services, any product or service obtained through the Services, or your relationship with any of them — whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory. Dispute includes claims that arose before these Terms (including claims relating to advertising) and claims that may arise after termination.

Dispute does not include claims concerning patents, copyrights, trademarks, trade secrets, publicity rights, or piracy or unauthorized use of intellectual property.

The arbitrator shall decide all issues except: (a) issues reserved for a court in these Terms, and (b) issues relating to the validity and enforceability of this arbitration agreement, which are for a court of competent jurisdiction to decide.

Nothing in this section prevents you from bringing a Dispute to the attention of a government agency.

1. Mandatory informal dispute resolution — a condition precedent

Before submitting a demand for arbitration, you must first complete this process. It is mandatory and is a condition precedent to arbitration.

The party with a Dispute must first provide the other with a written Notice. You send your Notice to care@vivoclinic.org. We will send ours to the most recent contact information we have on file for you.

A Notice must include all of the following: (a) a detailed description of the Dispute; (b) the nature and basis of the claim(s); (c) the relief sought and a calculation of it; (d) information sufficient to identify any relevant transaction, account, or experience; and (e) the party’s mailing address, email address, and phone number.

Any Notice you submit must be personally signed by you, and any Notice Vivo submits must be signed by a Vivo representative. If you want us to speak with your representative, please also provide a signed authorization to do so.

During the informal process, if the receiving party requests it, both parties shall participate in an individualized telephonic settlement conference. You agree to personally attend (with counsel, if represented) if we request it, and we agree to have a representative personally attend (with counsel, if represented) if you request it. Both parties agree to negotiate in good faith.

If the Dispute is not resolved satisfactorily within sixty (60) days after receipt of a compliant Notice, either party may commence arbitration. Any applicable limitations period (including statutes of limitations) is tolled for 60 days from the time a fully compliant Notice is served, unless the parties mutually agree to extend that period.

A court of competent jurisdiction has the power to enforce this condition precedent, including the power to enjoin the filing or prosecution of an arbitration and the assessment and collection of arbitration fees. If the sufficiency of a Notice or compliance with this process is at issue and a party elects to have that issue decided by a court, any arbitration shall be automatically stayed pending resolution of that issue. Nothing in this paragraph limits the right of a party to seek damages for non-compliance with this process in arbitration.

2. Agreement to binding individual arbitration

Subject to the limited exceptions set forth below, the sole and exclusive forum for any and all Disputes shall be final and binding individual arbitration.

3. Exception — small claims court

Either party retains the right to have a Dispute heard in small claims court, provided the Dispute falls within that court’s jurisdictional limits, seeks individualized relief, and the action remains in that court and is not removed or appealed to a court of general jurisdiction. Whether a Dispute falls within the jurisdiction of small claims court is for the small claims court to decide in the first instance.

4. Arbitration procedures

You and Vivo acknowledge that this section affects interstate commerce and that the Federal Arbitration Act and federal arbitration law apply, despite any other choice of law provision.

Arbitration shall be administered by JAMS in accordance with its then-current consumer arbitration rules (including any applicable mass-filing or supplementary rules), as modified by these Terms. If JAMS is unavailable or unwilling to administer the arbitration consistent with these Terms, the parties shall agree on an administrator that will do so; if they cannot agree, they shall jointly petition a court of competent jurisdiction to appoint one.

• Fees. The applicable rules govern the payment of fees unless applicable law requires a different allocation in order for this provision to be enforceable. If you are unable to pay your share of the fees, we will consider a request to cover them, so long as your claim is not held to be frivolous or brought for an improper purpose. Either party may negotiate with the administrator regarding fees, and both agree to work together in good faith to ensure arbitration remains cost-effective.
• Certification. The arbitration demand must be signed by the claimant if unrepresented, or by the claimant’s attorney if represented. By signing, the signer certifies — to the best of their information, knowledge, and belief, formed after a reasonable inquiry — that: (a) the demand is not presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase cost; (b) the claims or legal contentions are warranted by existing law or by a non-frivolous argument for extending, modifying, or reversing existing law; and (c) the factual contentions have evidentiary support or will likely have evidentiary support after reasonable further investigation. The arbitrator is authorized to award any relief or impose any sanction available under Federal Rule of Civil Procedure 11 against all parties and counsel.
• Single arbitrator. Arbitration will be conducted before a sole neutral arbitrator located at or near the location where the arbitration takes place.
• Location. Any in-person hearing will be conducted in the county or city in which you reside, or at another location reasonably convenient for you. You may choose to have the arbitration conducted by telephone or video hearing, or solely through written submissions — except that any Dispute seeking $25,000 or more, or injunctive relief, shall have an in-person or video hearing unless the parties agree otherwise. Either party may request a hearing from the arbitrator.
• Relief. The arbitrator may award the same relief available in court, provided that such relief (including declaratory or injunctive relief) shall only be in favor of the individual party seeking relief and only to the extent necessary to provide the relief warranted by that party’s individual claim.
• Confidentiality. The parties agree the arbitration proceedings will be kept confidential and that the existence of the proceeding and any element of it will not be disclosed beyond the arbitration, except as lawfully required in judicial proceedings relating to the arbitration or as specifically permitted by law. Any facts, evidence, documents, or testimony introduced in one arbitration may be used only in that proceeding and may not be disclosed, introduced, or used in another, even involving the same or similar claims.
• No preclusive effect. The arbitrator will not be bound by rulings in prior arbitrations not involving the same parties. The award is binding only as to the parties and has no preclusive effect in any other proceeding to which you are not a named party.
• Reasoned decision. The arbitrator shall be bound by these Terms as a court would be and shall issue a reasoned, detailed decision explaining the essential findings and conclusions on which the award is based. The provisions of Fed. R. Civ. P. 68 shall be applied by the arbitrator after entry of an award. Judgment on any award may be entered in a court of competent jurisdiction, except that an award that has been satisfied may not be entered.

5. Additional procedures for mass arbitration filings

If twenty-five (25) or more claimants (including you) submit Notices or seek to initiate arbitrations raising similar claims against Vivo and are represented by the same or coordinated counsel, or are otherwise coordinated (a “Mass Arbitration”), these additional procedures apply. You agree that under these procedures, the resolution of your Dispute might be delayed and ultimately proceed in court. Counsel for the parties shall meet and confer in good faith in an effort to resolve the Disputes, streamline procedures, address the exchange of information, modify the number of Disputes to be adjudicated through arbitration, and conserve the parties’ and the administrator’s resources.

If you elect to bring your Dispute as part of a Mass Arbitration, any applicable limitations periods shall be tolled from the time your Dispute is first submitted to the administrator until it is selected to proceed as part of a staged process, settled, withdrawn, otherwise resolved, or opted out of arbitration pursuant to this provision.

Stage One. If at least 50 Disputes are submitted as part of the Mass Arbitration, counsel for the claimants and counsel for Vivo shall each select 25 Disputes to be filed and to proceed as individual arbitrations as part of this initial staged process. The number may be increased by agreement of counsel; if there are fewer than 50 Disputes, all shall proceed individually as part of Stage One. Each case shall be assigned to a different arbitrator and proceed individually. If a case is withdrawn before the issuance of an award, another shall be selected. The remaining Disputes shall not be filed or deemed filed in arbitration, nor shall any arbitration fees be assessed or collected in connection with them. After this initial set of staged proceedings, counsel for the parties shall participate in a global mediation session with a retired state or federal court judge jointly selected by counsel, in an effort to resolve all remaining Disputes. Vivo shall pay the mediator’s fee.

Stage Two. If the remaining Disputes have not been resolved at the conclusion of Stage One, counsel for the claimants and counsel for Vivo shall each select 50 Disputes to be filed and to proceed as individual arbitrations as part of this second staged process. The number may be increased by agreement of counsel; if there are fewer than 100 Disputes, all shall proceed individually as part of Stage Two. Each case shall be assigned to a different arbitrator unless counsel agree otherwise. If a case is withdrawn before the issuance of an award, another shall be selected. The remaining Disputes shall not be filed or deemed filed in arbitration, nor shall any fees be assessed or collected in connection with them. After this second set of staged proceedings, counsel shall participate in a second global mediation session with a retired judge jointly selected by counsel. Vivo shall again pay the mediator’s fee.

Upon completion of the Stage Two mediation, each remaining Dispute that is not settled or withdrawn shall be opted out of arbitration and may proceed in a court of competent jurisdiction consistent with the remainder of these Terms. Notwithstanding the foregoing, counsel for the parties may mutually agree in writing to proceed with the adjudication of some or all remaining Disputes in individual arbitrations consistent with the Stage Two process (except that Disputes shall be randomly selected and mediation shall be elective by agreement of counsel), or through another mutually agreeable process. A court of competent jurisdiction shall have the authority to enjoin the filing or prosecution of arbitrations and the assessment or collection of arbitration fees inconsistent with this provision.

This provision and each of its requirements are essential parts of this arbitration agreement. If, after exhaustion of all appeals, a court of competent jurisdiction decides that these procedures apply to your Dispute and are not enforceable, then your Dispute shall not proceed in arbitration and shall proceed in a court of competent jurisdiction consistent with the remainder of these Terms.

6. Future changes to this arbitration agreement

If we make any future change to this arbitration agreement (other than a change to our contact information), you may reject that change by sending your personally signed, written notice to care@vivoclinic.org. Such a notice does not constitute an opt-out of arbitration altogether. By rejecting a future change, you are agreeing that you will arbitrate any Dispute in accordance with this version of the arbitration agreement.

7. Class action waiver and jury trial waiver

YOU AND VIVO EACH AGREE THAT ANY PROCEEDING — WHETHER IN ARBITRATION OR IN LITIGATION IN COURT — WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, COLLECTIVE, CONSOLIDATED, PRIVATE ATTORNEY GENERAL, OR REPRESENTATIVE ACTION. YOU AND WE AGREE TO WAIVE ANY RIGHT TO BRING OR PARTICIPATE IN SUCH AN ACTION IN ARBITRATION OR IN COURT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW. UNLESS YOU AND WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE ANY PERSON’S CLAIMS WITH THOSE OF ANOTHER AND MAY NOT PRESIDE OVER ANY FORM OF CLASS, REPRESENTATIVE, COLLECTIVE, OR PRIVATE ATTORNEY GENERAL PROCEEDING.

TO THE FULLEST EXTENT PERMITTED BY LAW, YOU AND VIVO WAIVE THE RIGHT TO A JURY TRIAL.

Notwithstanding the foregoing, the parties retain the right to participate in a class-wide settlement.

IF, AFTER EXHAUSTION OF ALL APPEALS, ANY OF THESE PROHIBITIONS ON NON-INDIVIDUALIZED RELIEF, ON CLASS, REPRESENTATIVE, COLLECTIVE, OR PRIVATE ATTORNEY GENERAL CLAIMS, OR ON CONSOLIDATION IS FOUND TO BE UNENFORCEABLE AS TO A PARTICULAR CLAIM OR REQUEST FOR RELIEF, THEN THE PARTIES AGREE THAT SUCH CLAIM OR REQUEST SHALL BE DECIDED BY A COURT AFTER ALL OTHER CLAIMS AND REQUESTS FOR RELIEF ARE ARBITRATED. The remainder of this section remains in force.

8. Opt-out

YOU MAY OPT OUT OF THIS ARBITRATION AGREEMENT BY EMAILING care@vivoclinic.org WITHIN 30 DAYS OF FIRST ACCEPTING THESE TERMS, stating your name and your intent to opt out. Opting out does not affect any other part of these Terms, and we will not retaliate against you for opting out.

9. Severability

All parts of these Terms apply to the maximum extent permitted by law. Vivo and you both agree that if we cannot enforce a part of these Terms as written, then that part will be replaced with terms that most closely match the intent of the part we cannot enforce, to the extent permitted by law. The invalidity of part of these Terms will not affect the validity and enforceability of the remaining provisions. The section headings are for convenience only and do not have any force or effect.

Third-party beneficiaries

The Medical Group, the Clinicians, and the Pharmacy are intended third-party beneficiaries of these Terms — specifically of the sections titled “Your relationship with Vivo Health LLC,” “Disclaimer of warranties,” “Limitation of liability,” “Indemnification,” and “Governing law; dispute resolution; arbitration; venue; severability of provisions” — and each may enforce those provisions against you directly.

Except as expressly stated in these Terms, there is no intent to create or establish third-party beneficiary status or rights in any other individual, subcontractor, or third party, and no other person shall have any right to enforce any right or enjoy any benefit created under these Terms.

Any use of third-party software provided in connection with the Services will be governed by the applicable third party’s license or terms of use, if available. If no such license or terms exist, these Terms will apply.

No waiver

No waiver by Vivo of any term or condition set forth in these Terms shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure by Vivo to assert a right or provision under these Terms shall not constitute a waiver of such right or provision.

No agency relationship

Neither these Terms, nor any Content, materials, or features of the Services, create any partnership, joint venture, employment, or other agency relationship between you and Vivo, the Medical Group, the Clinicians, or the Pharmacy. You may not enter into any contract on our behalf or bind us in any way.

Remedies

You agree that any violation, or threatened violation, by you of these Terms may cause us irreparable harm for which monetary damages would be inadequate, and you consent to our seeking injunctive or equitable relief as appropriate. These remedies are in addition to any other remedies we may have at law or in equity.

Assignment

You may not assign any of your rights under these Terms, and any such attempt will be null and void. Vivo may, in its sole discretion, assign or transfer these Terms or any or all of the contractual rights and obligations under them, in whole or in part, without further consent or notification, in the event that some or all of the business of Vivo is transferred to another entity by way of merger, sale of its assets, or otherwise.

Entire agreement

These Terms, together with the Privacy Policy, the Refund & Cancellation Policy, the Telehealth Informed Consent, and the Notice of Privacy Practices, constitute the entire agreement between you and Vivo regarding your use of the Sites and Services, and supersede any prior agreements between you and Vivo regarding the Services, including prior versions of these Terms.

Contacting us

If you have any questions or concerns about these Terms, please contact us at:

Vivo Health LLC
721 East Broadway, Suite A
Glendale, CA 91205
United States
care@vivoclinic.org
+1 (762) 327-2774