Avive Solutions, Inc.
Terms and Conditions
Last Updated: December 4, 2022
Welcome, and thank you for your interest in Avive Solutions, Inc. (“Avive”, “we”, “us”, or “our”) and our website at https://avive.life, including subdomains of such website (collectively, the “Site”). These Terms (as defined below) are a legally binding contract between you and Avive regarding your use of the Site.
PLEASE READ THE FOLLOWING TERMS CAREFULLY.
ARBITRATION NOTICE. Except for certain kinds of disputes described in Section 15 (Dispute Resolution and Arbitration), you agree that disputes arising under these Terms will be resolved by binding, individual arbitration, and BY ACCEPTING THESE TERMS, YOU AND AVIVE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING.
1. Overview: The Site provides information about Avive and our products and services, including the Avive Automated External Defibrillator (AED), our approved accessories, and related software systems. The Avive AED has been approved by the U.S. Food and Drug Administration (FDA) for prescription use only and is indicated for adult and pediatric patients over 1 years of age.
2. No Medical Advice
2.1 Information Only. WE DO NOT PROVIDE MEDICAL ADVICE. The information made available on or through the Site is not a substitute for any professional medical advice. All information or content provided on our Site, including information about our company, subsidiaries, products, technology, and solutions, is for general informational purposes only. You should always seek the advice of a qualified healthcare professional with any questions you may have regarding your health or use of any medical products. Healthcare professionals should exercise their own professional judgment when using our content on our Site. While we attempt to keep all the information on the Site up-to-date, information can change quickly, and the information and content that you find on our Site should not be considered error-free or as a comprehensive source of all information on a particular topic. We do not warrant that any information or content provided on or through our Site is accurate, complete or useful to you. Any reliance you place on such information is strictly at your own risk. We assume no responsibility for any consequences relating directly or indirectly to any action or inaction you may take based upon the information and materials on our Site.
2.2 No Doctor-Patient Relationship. USE OF OUR SITE DOES NOT CREATE A DOCTOR-PATIENT RELATIONSHIP. No information contained on the Site is intended to be used for medical diagnosis or treatment. You acknowledge and agree that none of the information or content provided through or on any Site has the ability to diagnose, prescribe, or perform any tasks that constitute the practice of medicine.
IN THE CASE OF A HEALTH EMERGENCY, SEEK IMMEDIATE ASSISTANCE FROM A HEALTHCARE PROFESSIONAL. YOU SHOULD NEVER DELAY OBTAINING MEDICAL ADVICE OR DISREGARD ANY MEDICAL ADVICE BECAUSE OF SOMETHING YOU HAVE OR HAVE NOT READ ON ANY OF OUR SITE.
To access or use some features of our Site, you may be required to register as a user. If you are under the age of eighteen (18), you are not permitted to register as a user. By registering as a user, you represent and warrant that: (a) you are at least eighteen (18) years old; (b) you have not previously been suspended or removed from the Site or any other service provided by Avive; and (c) your use of the Site is in compliance with any and all applicable laws and regulations and you are legally qualified to enter and form contracts under applicable law.
If you are agreeing to these Terms on behalf of an organization or entity, you represent and warrant that you are authorized to agree to these Terms on that organization or entity’s behalf and bind them to these Terms.
4. YOUR USE OF THE SITE
4.1 Limited License. Subject to your complete and ongoing compliance with these Terms, Avive grants you, soley for your personal use, a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to access and use the Site.
4.2 License Restrictions. Except and solely to the extent such a restriction is impermissible under applicable law, you may not: (a) reproduce, distribute, publicly display, or publicly perform the Site; (b) make modifications to the Site; or (c) interfere with or circumvent any feature of the Site, including any security or access control mechanism. If you are prohibited under applicable law from using the Site, you may not use it.
4.3 Information You Submit. Do not submit any information or other materials that you consider confidential or proprietary through the Site. If you choose to provide input and suggestions regarding problems with or proposed modifications or improvements to the Site (“Feedback”), then you do so on a non-confidential basis (regardless of any designation or indication to the contrary in the submitted information or any accompanying correspondence) and you hereby grant Avive an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free transferable, sublicensable right to exploit the Feedback in any manner and for any purpose, including to improve the Site and create other products and services.
5. OWNERSHIP; PROPRIETARY RIGHTS. The Site is owned and operated by Avive. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Site (“Materials”) provided by Avive are protected by intellectual property and other laws. All Materials included in the Site are the property of Avive or its third-party licensors. Except as expressly authorized by Avive, you may not make use of the Materials. Avive reserves all rights to the Materials not granted expressly in these Terms.
6. LINKED WEBSITES. The Site may contain links to third party websites. Linked websites are not under Avive’s control, and Avive is not responsible for any third-party content.
6.1 Third Party Content. Opinions, advice, statements, or other information made available through the Site by third parties, such as other users, are those of their respective authors, and should not necessarily be relied upon. Those authors are solely responsible for their content. Avive does not guarantee the accuracy, completeness, or usefulness of any third-party information in any company or otherwise accessible on or through the Site and will not be responsible for any loss or damage resulting from your reliance on third-party information.
7. PROHIBITED CONDUCT. BY USING THE SITE YOU AGREE NOT TO:
- use the Site for any illegal purpose or in violation of any local, state, national, or international law;
- violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third-party intellectual property right;
- interfere with security-related features of the Site, including by: (i) disabling or circumventing features that prevent or limit use or copying of any content; or (ii) reverse engineering or otherwise attempting to discover the source code of any portion of the Site except to the extent that the activity is expressly permitted by applicable law;
- interfere with the operation of the Site or any user’s enjoyment of the Site, including by uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code or interfering with or disrupting any network, equipment, or server connected to or used to provide the Site;
- perform any fraudulent activity including impersonating any person or entity, or claiming a false affiliation;
- sell or otherwise transfer the access granted under these Terms or any Materials or any right or ability to view, access, or use any Materials; or
- attempt to do any of the acts described in this Section 7 or assist or permit any person in engaging in any of the acts described in this Section 7.
8. E-COMMERCE The Site may allow you to purchase Avive’s products. Any products purchased through the Site will be subject to a separate purchase and sale agreement. Before you purchase any products from the Site, you will have an opportunity to review and accept the fees that you will be charged. Avive (or its third-party payment processor) will charge the method you specify at the time of purchase. You authorize Avive (or its third-party payment processor) to charge all fees for the product(s) you select to your payment method. If you pay any fees with a credit card, Avive (or its third-party payment processor) may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase.
9. MODIFICATION OF THE SITE. Avive reserves the right to modify or discontinue the Site at any time (including by limiting or discontinuing certain features of the Site), temporarily or permanently, without notice to you. Avive will have no liability for any change to the Site or any suspension or termination of your access to or use of the Site.
10. MODIFICATION OF THESE TERMS. We reserve the right to change these Terms on a going-forward basis at any time. Please check these Terms periodically for changes. Except as expressly permitted in this Section 10, these Terms may be amended only by a written agreement signed by authorized representatives of the parties to these Terms. Disputes arising under these Terms will be resolved in accordance with the version of these Terms that was in effect at the time the dispute arose.
11. TERM. These Terms are effective beginning when you accept the Terms or first access, or use the Site, and ending when terminated as described in this Section 11. If you violate any provision of these Terms, your authorization to access the Site and these Terms automatically terminate. In addition, Avive may, at its sole discretion, terminate these Terms, or suspend or terminate your access to the Site, at any time for any reason or no reason, with or without notice. Upon termination of these Terms: (a) your license rights will terminate and you must immediately cease all use of the Site; (b) you will no longer be authorized to access the Site; and (c) Sections 2, 4.3, 5, 11, 12, 13, 14, 15 and 16 will survive.
12. INDEMNIFICATION. To the fullest extent permitted by law, you are responsible for your use of the Site, and you will defend and indemnify Avive and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (together, the “Avive Entities”) from and against every claim brought by a third party, and any related liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or connected with: (a) your unauthorized use of, or misuse of, the Site; (b) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (c) your violation of any third party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (d) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of those claims.
13. NO WARRANTIES
13.1 THE SITE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SITE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. AVIVE DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SITE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SITE, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. AVIVE DOES NOT WARRANT THAT THE SITE OR ANY PORTION OF THE SITE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SITE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND AVIVE DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.
13.2 NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SITE OR AVIVE ENTITIES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SITE WILL CREATE ANY WARRANTY REGARDING ANY OF THE AVIVE ENTITIES OR THE SITE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. WE ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM THE SITE OR YOUR USE OF THE SITE. YOU UNDERSTAND AND AGREE THAT YOU USE ANY PORTION OF THE SITE AT YOUR OWN DISCRETION AND RISK, AND THAT WE ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SITE) OR ANY LOSS OF DATA.
13.3 THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. Avive does not disclaim any warranty or other right that Avive is prohibited from disclaiming under applicable law.
14. LIMITATION OF LIABILTIY
14.1 TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE AVIVE ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SITE OR ANY MATERIALS OR CONTENT ON THE SITE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY AVIVE ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
14.2 TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE AVIVE ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SITE OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO $100.
14.3 EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 14 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
15. DISPUTE RESOLUTION AND ARBITRATION
15.1 Generally. Except as described in Section 15.2 (Exceptions) and 15.3 (Opt-Out), you and Avive agree that every dispute arising in connection with these Terms will be resolved through binding arbitration. Arbitration uses a neutral arbitrator instead of a judge or jury, is less formal than a court proceeding, may allow for more limited discovery than in court, and is subject to very limited review by courts. This agreement to arbitrate disputes includes all claims whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. Any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement will be resolved by the arbitrator.
15.2 Exceptions. Although we are agreeing to arbitrate most disputes between us, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law in aid of arbitration; or (d) to file suit in a court of law to address an intellectual property infringement claim.
15.3 Opt-Out. If you do not wish to resolve disputes by binding arbitration, you may opt out of the provisions of this Section 15 (Dispute Resolution and Arbitration) within 30 days after the date that you agree to these Terms by sending a letter to Avive Solutions, Inc. Attention: Legal Department – Arbitration Opt-Out, 185 Valley Drive, Brisbane, CA 94005 that specifies: your full legal name, the email address associated with your account on the Site, and a statement that you wish to opt out of arbitration (“Opt-Out Notice”). Once we receive your Opt-Out Notice, this Section 15(Dispute Resolution and Arbitration) will be void and any action arising out of these Terms will be resolved as set forth in Section 16.2 (Governing Law). The remaining provisions of these Terms will not be affected by your Opt-Out Notice.
15.4 Arbitrator. This arbitration agreement, and any arbitration between us, is subject the Federal Arbitration Act and will be administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (collectively, “AAA Rules”) as modified by these Terms. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at +1-800-778-7879, or by contacting Avive.
15.5 Commencing Arbitration. Before initiating arbitration, a party must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice of Arbitration”). Avive’s address for Notice is: Avive Solutions, Inc., 185 Valley Drive, Brisbane, CA 94005. The Notice of Arbitration must: (a) identify the name or account number of the party making the claim; (b) describe the nature and basis of the claim or dispute; and (c) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, you or Avive may commence an arbitration proceeding. If you commence arbitration in accordance with these Terms, Avive will reimburse you for your payment of the filing fee, unless your claim is for more than US$10,000 or if Avive has received 25 or more similar demands for arbitration, in which case the payment of any fees will be decided by the AAA Rules. If the arbitrator finds that either the substance of the claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules and the other party may seek reimbursement for any fees paid to AAA.
15.6 Arbitration Proceedings. Any arbitration hearing will take place in the county and state of your residence/billing address unless we agree otherwise or, if the claim is for US$10,000 or less (and does not seek injunctive relief), you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a telephonic or video hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your residence/billing address. During the arbitration, the amount of any settlement offer made by you or Avive must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based.
15.7 Arbitration Relief. Except as provided in Section 15.8 (No Class Actions), the arbitrator can award any relief that would be available if the claims had been brough in a court of competent jurisdiction. If the arbitrator awards you an amount higher than the last written settlement amount offered by Avive before an arbitrator was selected, Avive will pay to you the higher of: (a) the amount awarded by the arbitrator and (b) US$10,000. The arbitrator’s award shall be final and binding on all parties. Judgment on the award may be entered in any court having jurisdiction.
15.8 No Class Actions. YOU AND AVIVE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Avive agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
15.9 Modifications to this Arbitration Provision. If Avive makes any substantive change to this arbitration provision, you may reject the change by sending us written notice within 30 days of the change to Avive’s address for Notice of Arbitration, in which case your account with Avive will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
15.10 Enforceability. If Section 15.8 (No Class Actions) or the entirety of this Section 15 (Dispute Resolution and Arbitration) is found to be unenforceable, or if Avive receives an Opt-Out Notice from you, then the entirety of this Section 15 (Dispute Resolution and Arbitration) will be null and void and, in that case, the exclusive jurisdiction and venue described in Section 16.2 (Governing Law) will govern any action arising out of or related to these Terms.
16.2 Governing Law. These Terms shall be governed by the laws of the State of California without excluding its conflicts-of-law provisions. Any dispute between the parties regarding this Agreement will be subject to the exclusive venue of the state and federal courts in San Mateo County, California. The parties hereby consent to the exclusive jurisdiction and venue of such courts.
16.4 Additional Terms. Your use of the Site is subject to all additional terms, policies, rules, or guidelines applicable to the Site or certain features of the Site that we may post on or link to from the Site or that you agree to in connection with certain technology or services made available to you by or on behalf of Avive (the “Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, these Terms.
16.5 Consent to Electronic Communications. By using the Site, you consent to receiving certain electronic communications from us. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that those communications be in writing.
16.6 Contact Information. The Site is offered by Avive Solutions Inc., located at 185 Valley Drive, Brisbane, CA 94005. You may contact us by sending correspondence to that address or by emailing us at firstname.lastname@example.org.
16.7 Notice to California Residents. If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Site or to receive further information regarding use of the Site.
16.8 No Support. We are under no obligation to provide support for the Site. In instances where we may offer support, the support will be subject to published policies.
16.9 International Use. The Site is intended for visitors located within the United States. We make no representation that the Site is appropriate or available for use outside of the United States. Access to the Site from countries or territories or by individuals where such access is illegal is prohibited.