VOW Digital Health is a novel health screening platform, available through our mobile application (the “App”) and our website at vowdigitalhealth.com and its subdomains (“Website”) that helps employers and event organizers (“Hosts”) ensure that individuals, like you, attending an event or employment, entertainment, dining or other venue have taken necessary precautions to limit the spread of COVID-19, and enabling such individuals to be eligible to attend such event or enter such venue.

These Terms of Use apply to the App, Website and all services made available through the App and our Website (collectively, including the App and Website, “Services”). These Terms of Use are a legal agreement between you (“You” or “Your”) and VOW by Jennifer Brisman, Inc. (“VOW” or “we”, “us” or “our”), establishing terms and conditions under which You shall access and use the Services. The date You first agree to these Terms of Use is referred to herein as the “Effective Date.” Your use of the Services is also subject to our Privacy Policy available on our Website at vowdigitalhealth.com, as such Privacy Policy may be updated from time to time. You acknowledge and agree that features and functionality of the Services are expected to change frequently.

BEFORE YOU CLICK ON THE “I ACCEPT” BUTTON OR OTHERWISE ACCESS THE APP, THE WEBSITE OR USE THE SERVICES, CAREFULLY READ THESE TERMS OF USE. BY CLICKING ON THE “I ACCEPT” BUTTON, DOWNLOADING THE APP OR USING THE SERVICES, YOU ARE AGREEING TO BE BOUND BY AND ARE BECOMING A PARTY TO THESE TERMS OF USE. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THESE TERMS OF USE, THEN DO NOT CLICK “I ACCEPT”, DO NOT ACCESS OR USE OUR WEBSITE OR SERVICES, AND DO NOT DOWNLOAD THE APP.

FURTHER, THESE TERMS OF USE CONTAIN AN AGREEMENT TO ARBITRATE, WHICH REQUIRES THAT YOU AND VOW ARBITRATE CERTAIN CLAIMS BY BINDING, INDIVIDUAL ARBITRATION INSTEAD OF GOING TO COURT AND LIMITS CLASS ACTION CLAIMS UNLESS YOU OPT OUT AS PROVIDED IN SUCH AGREEMENT TO ARBITRATE (SEE SECTION 9 “AGREEMENT TO ARBITRATE”).

1. OUR APP AND OTHER SERVICES

1.1. Access and Use. Subject to the terms and conditions of these Terms of Use, VOW hereby grants to You, for a one (1) year period from the Effective Date or such other period set forth on our App or Website in connection with Your registration (the “Subscription Term”), a limited, non-exclusive, non-transferable right to access and use the Services, solely for Your personal use in connection with Your eligibility to attend certain events or venues of third party Hosts and not for the benefit of any other person or entity.

1.2. Restrictions. You shall not, directly or indirectly, and You shall not permit any third party to, (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the object code, source code or underlying ideas or algorithms of the Services; (ii) modify, translate, or create derivative works based on any element of the Services or any related documentation; (iii) rent, lease, distribute, sell, resell, assign, or otherwise transfer its rights to use the Services, including the App; (iv) use the Services for any purpose other than its intended purpose; (v) interfere with or disrupt the integrity or performance of the Services; or (vi) attempt to gain unauthorized access to the Services.

1.3. We Do Not Provide Medical Advice. The information, whether text, data, and other materials available through our Services, including any indication that You are authorized to attend a Host event, (“Your Content”) are for Your informational purposes only. VOW does not provide, and the App, Website and other Services do not include or provide, professional medical advice or diagnosis or treatment of any medical conditions. You must consult with your physician or other qualified health providers (each, “Your Clinician”) with any questions you may have regarding any medical condition, including but not limited to COVID-19. Your Clinician is solely responsible for providing You with professional medical advice, diagnosis or treatment of any medical conditions. Do not disregard professional medical advice due to any of Your Content available through our Services. Reliance on any of Your Content is solely at your own risk.

1.4. VOW Is Not Responsible for Hosts, Events or Venues. You acknowledge and agree that VOW is not responsible for any acts or omissions of any Host or for any events or venues. Your attendance at any event or venue is solely a matter between You and the applicable Host. Hosts may impose additional restrictions, and fees, as conditions of Your attendance at any event or venue.

2. SERVICES AND YOUR DATA

2.1. Generally. Our services are designed to allow Hosts to set up events and screen individual attendees to confirm that such individual, prior to attendance at a Host’s event: (a) has obtained a negative COVID-19 test result; (b) has obtained a vaccine for COVID-19; (c) does not have any COVID-19 symptoms; (d) has no knowledge of exposure to any other individual(s) with COVID-19 symptoms in the fourteen (14) days preceding the Host’s event; and/or (v) other information as may be enabled by VOW from time to time (“COVID Services”). You acknowledge and agree that VOW may receive fees from Hosts in connection with provision of the COVID Services. You hereby authorize VOW to receive Your Data (as defined herein) as necessary to provide the COVID Services to the Hosts you authorize in the App. You acknowledge that You may need to obtain other services from third parties to fully address any medical condition, including COVID-19. You acknowledge and agree that notwithstanding the provision of the COVID Services, the event or venue you attend is not guaranteed to be free of transmission of COVID-19 and that in attending such event or venue, you assume all risks related thereto.

2.2. Submission of Your Data; Use by Hosts. You will be required to provide certain information and/or upload certain data or documentation in connection with Your use of the App and registration for Host events, as requested from time to time (“Your Data”). You have sole discretion over whether to authorize a Host to access Your Data in connection with any COVID Services. You are responsible for the accuracy, quality, integrity, legality, reliability, appropriateness of all Your Data. By providing any of Your Data, You represent, warrant and covenant that You have the right to provide Your Data for the purposes set forth in these Terms of Use and that all Your Data is accurate, complete and up-to-date. You must not submit, upload, post, display or share any of Your Data that you do not have the right to copy, use or share for the purpose of Your use of the Services. You further agree that after your attendance at a Host event, we may request that you verify you do not have any COVID-19 symptoms within fourteen (14) days of such event and that we may contact you if any other attendee at such event has notified us or the applicable Host that such attendee reasonably believes that he or she contracted COVID-19 at or prior to such event. Your Data is subject to the license rights set forth in these Terms of Use. You agree to respond to all such requests accurately and completely. Additionally, by uploading Your Data to the Services, you agree that you are over the age of 18 or that you are a parent or guardian of a minor under the age of 18 and are uploading information on behalf of the minor. We do not collect any information directly from minors under the age of 18.

3. USE OF THE APP AND WEBSITE

3.1. Login Credentials. VOW will enable You to establish a username and password for access and use of the App and certain other Services during the Subscription Term. You are responsible for maintaining the confidentiality and security of all such login credentials. You are solely responsible for any and all access and use of the Services that occurs under Your login credentials. You agree to immediately notify VOW of any unauthorized use of, or access to, Your login credentials.

3.2. Host’s Access to Your Data. From time to time, through functionality made available through the App or Website from time to time, You may authorize certain Hosts to access Your Data for the purposes of Your attendance at a Host event. You agree that an authorized Host may copy and download Your Data from time to time, to the extent such Host has access to Your Data and such functionality is enabled by the App or Website from time to time. You agree and acknowledge that VOW is not responsible for any acts or omissions of any Host in connection with Your Data. VOW may enter into separate terms and conditions with Hosts in connection with their access to and use of the App and Website in connection with their access to Your Data or similar data for certain of their other event attendees.

4. DISCLAIMERS

4.1. Warranty Disclaimer. THE APP, WEBSITE AND OTHER SERVICES ARE PROVIDED TO YOU ON AN AS-IS BASIS. YOUR USE OF THE APP, WEBSITE AND OTHER SERVICES IS AT ITS OWN RISK. VOW DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS AND/OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. VOW DISCLAIMS ALL LIABILITY FOR THE LOSS OF DATA ENTERED INTO OR SAVED IN THE APP OR WEBSITE. YOU FURTHER AGREE AND ACKNOWLEDGE THAT VOW IS NOT RESPONSIBLE FOR HOW THE HOST USES YOUR CONTENT OR YOUR DATA.

4.2. Third Party Product Descriptions and Links.

(a) Third Party Products. We do not currently sell third-party products or Services through our Website or App, but may do so in the future. We may, however, provide certain information or descriptions about products (collectively “Product Descriptions”) that we prepare or that we obtain from independent third parties, such as from Hosts or other third party vendors. We do not warrant that Product Descriptions or any prices that are referenced are accurate, complete, reliable, current or error-free. You agree that VOW is not liable in any way for the accuracy, completeness, timeliness or correct sequencing of the Product Descriptions, or for any decision made or action taken by you relying upon the Product Descriptions.

(b) Links to Third Party Sites. External links on our Services may lead to other websites, including advertised products sold by outside vendors and companies. We are not liable for the content, goods, services, advertising, or other materials found on these external websites. Although we may display ads and have an affiliate referral relationship with third parties, we do not own or control outside companies selling products accessed through our Services, and are not responsible or liable for their company policies or the quality of their merchandise or services. Before buying anything, users are advised to carefully investigate the individual company policies of all online purchases that they intend to make. From time to time, VOW may be a participant in certain affiliate advertising programs designed to provide a means for websites to earn advertising fees by advertising and linking to certain third parties. Any logo of a third party used on the App, Website or other portion of our Services is a trademark of such third party or its affiliates.

(c) No Third Party Endorsements. In no event shall any reference to any third party or third party product or service be construed as an approval or endorsement by VOW of that third party or of any product or service provided by a third party. Likewise, a link (including without limitation external websites that are framed by the Services as well as any advertisements displayed in connection therewith) to any third party website does not imply that we endorse or accept any responsibility for the content or use of such a website. VOW does not warrant the performance of any third party.

5. PROPRIETARY RIGHTS

5.1. Ownership. We acknowledge that, as between You and VOW, You are the sole and exclusive owner of Your Data and Your Content. You acknowledge that the App, Website and other content available through our Services (other than Your Data and Your Content), and all intellectual property rights therein, are the sole and exclusive property of VOW and its licensors. The service marks and trademarks of VOW, including without limitation “VOW”, the VOW logo and “VOW Digital Health”, are service marks owned by VOW by Jennifer Brisman, Inc. Any other trademarks, service marks, logos and/or trade names appearing via the Services are the property of their respective owners. You may not copy or use any of these marks, logos or trade names without the express prior written consent of the owner.

5.2. License to Your Content and Your Data. You grant to VOW a royalty-free, nonexclusive, irrevocable, limited right and license to use Your Content and Your Data (a) in order to provide the COVID Services; (b) to analyze and improve the App, Website and any other portion of the Services; and/or (c) to compile, use and disclose aggregate or de-identified data, statistics, measurements or other metrics derived from Your Content and Your Data (including in combination with the aggregate or de-identified customer data of other VOW or Host customers) for its own purposes. Aggregate or de-identified data means data that does not identify You or any other individual.

5.3. Disclosure of Your Content or Your Data. VOW shall not disclose Your Content or Your Data to third parties, except as permitted under these Terms of Use or under the Privacy Policy.

5.4. Limited Feedback License. You hereby grant to VOW, at no charge, a non-exclusive, royalty-free, worldwide, transferable, sublicensable (through one or more tiers), perpetual, irrevocable license in and to suggestions, comments and other forms of feedback (“Feedback”) regarding the App, Website or other Services, including Feedback regarding features, usability and use, and bug reports, to reproduce, perform, display, create derivative works of the Feedback and distribute such Feedback and/or derivative works in the Services or any other products or services. Feedback is provided by You “as is” without warranty of any kind by You.

6. INDEMNIFICATION

You agree to indemnify, hold harmless and defend VOW and its officers, directors, employees and suppliers from any claims, damages, losses, liabilities, and all costs and expenses of defense, including but not limited to, attorneys’ fees, resulting directly or indirectly from a claim by a third party that arises in connection with Your use of the Services and/or Your Data or Your attendance at any event or venue in connection with Your use of the Services.

7. LIMITATION OF LIABILITY

7.1. No Consequential Damages. VOW SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR ANY DAMAGES FOR LOST DATA, REGARDLESS OF WHETHER VOW HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING WITHOUT LIMITATION, ANY SUCH DAMAGES ARISING OUT OF THE LICENSING, PROVISION OR USE OF THE VOW APP, WEBSITE OR OTHER SERVICES, OR RESULTS THEREOF.

7.2. Limits on Liability. VOW SHALL NOT BE LIABLE FOR CUMULATIVE, AGGREGATE DAMAGES GREATER THAN THE GREATER OF (I) THE SUM OF THE AMOUNTS HAVING THEN ACTUALLY BEEN PAID BY YOU TO VOW, IF ANY, FOR THE COVID SERVICES DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE THE CLAIM AROSE, AND (II) $10, MINUS, IN ALL CIRCUMSTANCES, ANY AMOUNTS PREVIOUSLY PAID (AS OF THE DATE OF SATISFACTION OF SUCH LIABILITY) BY VOW TO YOU IN SATISFACTION OF ANY LIABILITY FOR DAMAGES UNDER THESE TERMS OF USE.

7.3. Essential Purpose. You acknowledge that the terms in this Section 7 are an essential basis of the bargain described in these Terms of Use and that, were VOW to assume any further liability, the fees payable hereunder would out of necessity, be set much higher. THE LIMITATIONS IN THIS SECTION 7 SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND SHALL APPLY EVEN IF AN EXCLUSIVE OR LIMITED REMEDY STATED HEREIN FAILS OF ITS ESSENTIAL PURPOSE.

8. TERM AND TERMINATION

8.1. Term. The term of these Terms of Use shall commence on the Effective Date and continue until the expiration or termination of all Subscription Term(s) for Services, unless earlier terminated as provided in these Terms of Use.

8.2. Termination. VOW reserves the right to terminate these Terms of Use for no reason in its sole discretion at any time. Further, either party may terminate these Terms of Use upon written notice to the other party in the event the other party (a) becomes insolvent or bankrupt or admits its inability to pay its debts as they mature, makes an assignment for the benefit of its creditors or ceases to function as a going concern or to conduct its operations in the normal course of business and such termination shall occur immediately upon notice; or (b) commits a material breach of any provision of these Terms of Use and does not remedy such breach within thirty (30) days after receipt of notice from the non-defaulting party or such other period as the parties may agree.

8.3. Effects of Termination. Upon expiration or termination of these Terms of Use, Your use of and access to the App and other Services, and Your right to access and use the Website, shall cease and VOW shall have no obligation to maintain or provide any Your Content or Your Data and may in our discretion, unless legally prohibited, delete all Your Content and Your Data in our systems or otherwise in our possession or under its control.

9. AGREEMENT TO ARBITRATE

9.1. Arbitration. You agree that all disputes between You and VOW (whether or not such dispute involves a third party) arising out of or relating to these Terms of Use, the App, Website, other Services, and/or Privacy Policy shall be finally resolved by arbitration before a single arbitrator conducted in the English language via teleconference or, if requested by You, in New York, New York, U.S.A., in each case under the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) and You and VOW hereby expressly waive trial by jury. You and VOW shall appoint as sole arbitrator a person mutually agreed by You and VOW or, if You and VOW cannot agree within thirty (30) days of either party’s request for arbitration, such single arbitrator shall be selected by the AAA upon the request of either party. Each party shall equally bear the costs of the arbitration and their own counsel. All decisions of the arbitrator shall be final and binding on both parties and enforceable in any court of competent jurisdiction. Notwithstanding this, application may be made to any court for a judicial acceptance of the award or order of enforcement. Notwithstanding the foregoing, either You or VOW shall be entitled to seek injunctive relief, security or other equitable remedies from any court of competent jurisdiction. Under no circumstances shall the arbitrator be authorized to award damages, remedies or awards that conflict with these Terms of Use (including without limitation Section 7 above) or to award punitive damages, including but not limited to pursuant to federal or state statutes permitting multiple or punitive awards.

9.2. Term for Cause of Action; Waiver of Class Actions. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to the Services or these Terms of Use must be filed within one (1) year after such claim or cause of action arose or shall be forever barred. Any claims brought by You or VOW must be brought in the party’s individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding. Neither You nor VOW will participate in a class action or class-wide arbitration for any claims covered by these Terms of Use. You hereby waive any and all rights to bring any claims related to these Terms of Use and Privacy Policy as a plaintiff or class member in any purported class or representative proceeding. You may bring claims only on Your own behalf.

9.3. Opt Out. You may opt out of this agreement to arbitrate in this Section 9. If you do so, neither you nor we can require the other to participate in an arbitration proceeding. To opt out, you must notify us in writing within thirty (30) days of the date that you first became subject to this arbitration provision. The opt out notice must state that you do not agree to the Agreement to Arbitrate and must include your name, address, phone number, your login credentials to which the opt out applies and a clear statement that you want to opt out of this agreement to arbitrate. You must sign the opt out notice for it to be effective. This procedure is the only way you can opt out of the Agreement to Arbitrate. You must use this address to opt out: VOW by Jennifer Brisman, Inc., ATTN: Arbitration Opt-out, Box 221, 126 Hardenburgh Avenue, 07627-9998.

9.4. Survival. This Arbitration section will survive the termination of Your relationship with VOW.

10. MISCELLANEOUS

10.1 Entire Agreement. These Terms of Use, together with any supplemental terms expressly agreed by the parties through the App or Website concurrently herewith or subsequent hereto, constitutes the entire agreement between the parties relating to this subject matter and supersedes all prior or simultaneous understandings, representations, discussions, negotiations, and agreements, whether written or oral.

10.2. Changes to these Terms of Use; Waiver. These Terms of Use may be amended or supplemented only by a writing that is signed by duly authorized representatives of both parties or through a click through agreement accepted by You; provided that these Terms of Use as applicable to users of our Website may be unilaterally amended by VOW by posting of such update Terms of Use on the Website and shall be effective from and after such posting. No term or provision hereof shall be considered waived by either party, and no breach excused by either party, unless such waiver or consent is in writing signed on behalf of the party against whom the waiver is asserted. No consent by either party to, or waiver of, a breach by either party, whether express or implied, shall constitute consent to, waiver of, or excuse of any other, different, or subsequent breach by either party.

10.3. Severability. If any provision of these Terms of Use is held invalid or unenforceable for any reason, the remainder of the provision shall be amended to achieve as closely as possible the economic effect of the original term and all other provisions shall continue in full force and effect.

10.4. Governing Law. These Terms of Use and the rights and obligations of the parties to and under this agreement shall be governed by and construed under the laws of the New York as applied to agreements entered into and to be performed in such State without giving effect to conflicts of laws rules or principles which would apply the laws of any other state or country. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to these Terms of Use. Subject in all respects to Section 9 hereof, for any disputes arising out of these Terms of Use, the parties consent to exclusive jurisdiction and venue in the state and federal courts located in New York.

10.5. Force Majeure. Neither party shall be liable for any failure or delay in performance under these Terms of Use due to fire, explosion, earthquake, epidemic, storm, flood or other weather; unavailability of necessary utilities or raw materials; Internet service provider failures or delays, or denial of service attacks; war, civil unrest, acts of terror, insurrection, riot, acts of God or the public enemy; strikes or other labor problems; any law, act, order, proclamation, decree, regulation, ordinance, or instructions of government or other public authorities, or judgment or decree of a court of competent jurisdiction (not arising out of breach by such party of these Terms of Use); or any other event beyond the reasonable control of the party whose performance is to be excused.

10.6. Assignment. You shall not assign its rights or obligations under these Terms of Use, whether voluntarily or by operation of law or otherwise, without VOW’s prior written consent. VOW may assign its rights or obligations under these Terms of Use without Your prior written consent. Any purported assignment or transfer in violation of this section shall be void. Subject to the foregoing restrictions, these Terms of Use will bind and benefit the parties and their successors and permitted assigns.

10.7. Relationship of the Parties. VOW is an independent contractor to You. There is no relationship of agency, partnership, joint venture, employment, or franchise between the parties. Neither party has the authority to bind the other or to incur any obligation on its behalf.

10.8. Contact Us. Please contact us at support@vow.app if You have any questions about our App, Website or other Services.

These Terms of Use last updated on August 1st, 2021.
Copyright © 2021 VOW by Jennifer Brisman, Inc.