COVID Hawaii and VAXCheck Terms of Use
Last Revised: March 3, 2021
Terms of Use
This User Agreement (the “Agreement”) set forth the terms and conditions upon which
FirstVitals Health and Wellness Inc (“our” “we” or “VAXCheck”) offers you ( “you” “your” or
“End-User”), access to use VAXCheck’s mobile application (the “App”) or website
vaxcheck.us (including any successor site). By clicking “I Agree”, by
accessing the VAXCheck personal immunization record (the “Service”), using the App, using the
Website or otherwise indicating your assent, you agree to be bound by this Agreement.
Additionally, by accessing the Website, you agree to be bound by VAXCheck’s Privacy Policy and
all applicable laws. In the event of an inconsistency between this Agreement and the Privacy
Policy, the terms of this Agreement shall control. Any reference to the singular in this
Agreement includes the plural and vice versa and reference to a gender includes the other
gender unless the context requires otherwise. Any reference to a “person” in these this
Agreement includes any individual, firm, unincorporated association or body corporate. IF YOU
DO NOT AGREE TO THIS AGREEMENT, DO NOT ACCESS OR USE THE SERVICE, APP OR WEBSITE.
THIS IS A LEGALLY ENFORCEABLE CONTRACT.
1. DESCRIPTION OF SERVICE
The Service is a personal health information retrieval and management service that allows users
of the Service (“Users”) to consolidate certain immunization health information (“Immunization
Information”) through the Service and share information with others (including family
members, doctors, travel authorities, public venues and other third-party providers). The
Service is provided to you by VAXCheck as an aid to assist you in organizing and managing your
immunization health information.
2. YOUR USE OF THE SERVICE
VAXCheck may review the Immunization Information that you maintain through the Service to
normalize and label data for display, but VAXCheck is not responsible for any errors in the
Immunization Information resulting from such review process. VAXCheck makes no effort to
review the Immunization Information for any other purpose, including, but not limited to,
accuracy, legality or non-infringement. VAXCheck is not responsible for any Immunization
Information provided by third-party providers or their Immunization portal sites. VAXCheck
cannot guarantee or assume responsibility for the completeness, timeliness, accuracy,
relevance, deletion or non-delivery of any Immunization Information.
Your right to access and use the Service is personal to you and is not transferable by you to any
other person or entity. You are only entitled to access and use the Service for lawful purposes.
Accurate information enables VAXCheck to provide the Service to you. You must provide true,
accurate, current and complete information and may not misrepresent information (a) in your
registration information, (b) third-party providers, or (c) about your Immunization Information.
In order for the Service to function effectively, you must also keep such information listed
above up-to-date and accurate. If you do not do this, the accuracy and effectiveness of the
Service will be affected.
Your access and use of the Service may be interrupted from time to time for any of several
reasons, including, without limitation, unanticipated system failures, the malfunction of
equipment, periodic updating, maintenance or repair of the App or other actions beyond the
control of VAXCheck or that VAXCheck, in its sole discretion, may elect to take. VAXCheck
cannot always foresee or anticipate technical or other difficulties which may result in, and
VAXCheck shall therefore not be responsible or liable for, any (a) failure to obtain Immunization
Information, (b) loss of Immunization Information or personalization settings, or (c) other
service interruptions.
3. LICENSE; RESERVATION OF RIGHTS
3.1 Limited License to Use the Service.
Subject to End-User’s compliance with the terms and conditions of this Agreement, VAXCheck
hereby grants to End-User a limited, personal, non-exclusive, non-transferable, license to use
the App to access the Service solely for the End-User’s own personal purposes. Except for the
licenses and rights expressly granted under this Agreement, no licenses or rights are granted by
VAXCheck to End-User hereunder, by implication, estoppel or otherwise. All such other licenses
and rights are reserved unto VAXCheck.
3.2 Other License Restrictions.
End-User shall not (a) copy or modify the Service or App for any purpose; (b) reverse-engineer,
decompile, modify, translate, disassemble or discover the source code for all or any portion of
the Service or the App; (c) distribute, disclose, market, rent, lease or otherwise transfer the
Service or the App to any other person or entity; or (d) use the App or the Service or permit,
enable or assist a third party to create competing products or services.
3.3 Intellectual Property Rights.
VAXCheck retains all intellectual property rights in and to the Service and the App and all
related documentation interest (including all copyrights, patents, service marks, trademarks
and other intellectual property rights), including, but not limited to, any and all updates,
enhancements, customizations, revisions, modifications, future releases and any other changes
thereto, and all related information, material and documentation. Except for rights specifically
provided in this Agreement, End-User hereby assigns to VAXCheck all other intellectual
property rights it may now or hereafter possess in the Service or the App and related
documentation, and all derivative works and improvements thereof, and agrees to execute all
documents, and take all actions, that may be necessary to confirm such rights. End-User also
agrees to retain all proprietary marks, legends and patent and copyright notices that appear on
the Service or the App and any related documentation delivered to End-User by VAXCheck and
all whole or partial copies thereof.
3.4 Proprietary Rights in Website Content.
VAXCheck retains all copyright and other exclusive rights in the contents of the Website (the
“Content”). Elements of the Content are protected by copyright, trade dress and other laws,
and may not be copied or imitated in whole or in part. Nothing shall be understood to be
granting you any license under any patent, trademark or copyright of VAXCheck or of any third-
party. Even though the Website may display certain third-party trademarks or brand names,
that does not mean that VAXCheck owns or is connected with those third-parties. Those third-
party trademarks are used only to identify the products and services of their respective owners.
Do not assume that VAXCheck sponsors or endorses those brands, products or services. You are
not permitted to use the trademarks displayed on the Website without VAXCheck’s prior
written consent or the consent of the third-party that may own the trademarks. No Content
may be modified, copied, distributed, framed, reproduced, republished, downloaded,
displayed, posted, transmitted or sold in any form or by any means, in whole or in part, without
VAXCheck’s prior written permission. You may download or print a copy of any portion of the
Content solely for your personal, noncommercial use, provided that you keep all copyright or
other exclusive notices intact. You may not republish Content contained on the Website or
include the information in any other database or collection. Any other use of the Content is
strictly prohibited.
4. WARRANTIES AND LIMITATIONS OF LIABILITY.
4.1 Warranties.
VAXCheck warrants that VAXCheck will use commercially reasonable efforts to cause the
Service and the App to operate in substantial conformance with its published documentation.
VAXCheck’s sole obligation and End-User’s sole remedy with respect to any failure of the
Service or the App to substantially conform to the documentation therefore is for VAXCheck to
use commercially reasonable efforts to remedy any such failure as soon as is reasonably
practicable, and if such failure is not remedied in a reasonable time, for End-User to terminate
its access to the Service pursuant to Section 6.2.
4.2 No Specific Results.
Specifically, VAXCheck does not represent, warrant or otherwise guarantee: (a) the reliability
and suitability of the App; (b) the effectiveness, suitability or reliability of communicated
information (including any data provided through the Service); (c) that the App will work
without interruption or that it will be free of errors, viruses or other harmful components; (d)
outcomes resulting from your use of the App; (e) that the information available on the App or
through the Service is comprehensive or exhaustive, or that it addresses all relevant symptoms,
medicines, and treatments for various diseases or medical conditions; or (f) any outcome with
respect to health and well-being as a result of the application of this information.
4.3 No Practice of Medicine.
The Website, Service and/or the App are not intended to be, and must not be taken to be, the
practice of medicine or other healthcare services by VAXCheck. Use of the Website, Service
and/or the App do not create a physician/Immunization or provider/Immunization relationship
with VAXCheck. VAXCheck is not recommending or endorsing any specific treatment, physician,
healthcare provider or medication.
4.4 Data Collection; Privacy Policy.
Any personal data (for example, your name, address, telephone number or e-mail address) that
you transmit to the Service or through the App will be used by VAXCheck in accordance with
the Privacy Policy. Any other communication or material you transmit to the Service or through
the App, such as questions, comments, suggestions or the like, will be treated as non-
confidential and non-proprietary.
4.5 Ability to Contract; Legal Age.
The Website, Service and the App are offered and available to users who are 18 years of age or
older. By using the Website, Services and/or the App, you represent and warrant that you are
of legal age to form a binding contract with VAXCheck and meet all of the foregoing eligibility
requirements. If you are under the age of 18, make sure that your parent or legal guardian
reads and agrees with this Agreement on your behalf, as your parent or legal guardian shall be
fully responsible for your compliance with this Agreement. If you do not meet all of these
requirements, you must not access or use the Website, Service or the App.
4.6 Warranty Disclaimer.
EXCEPT AS SET FORTH IN SECTION 4.1, YOU UNDERSTAND AND AGREE THAT THE WEBSITE,
SERVICE AND APP IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND THAT
VAXCHECK DISCLAIMS ANY AND ALL WARRANTIES RELATING TO THE WEBSITE, SERVICE, APP OR
ANY OTHER MATTER COVERED BY THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY
IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
VAXCHECK DOES NOT WARRANT THAT THE WEBSITE, SERVICE AND/OR APP WILL MEET YOUR
REQUIREMENTS, WILL OPERATE WITHOUT INTERRUPTION OR DELAY AND/OR BE ERROR-FREE,
OR THAT ALL FAILURES OF THE WEBSITE, SERVICE OR APP TO CONFORM TO THE
DOCUMENTATION PROVIDED CAN OR WILL BE CORRECTED. VAXCHECK MAKES NO
WARRANTIES OR REPRESENTATIONS AS TO THE ACCURACY OF ANY CONTENT PROCESSED BY
THE WEBSITE, SERVICE AND/OR APP. MATERIAL DOWNLOADED OR OTHERWISE OBTAINED
THROUGH THE USE OF THE WEBSITE, SERVICE AND/OR APP IS DONE AT YOUR OWN CHOOSING
AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER
SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES.
ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
4.7 Limitations of Liability.
IN NO EVENT SHALL VAXCheck, or our directors, officers, employees or agents BE LIABLE FOR
LOST PROFITS OR BUSINESS, LOSS OF GOODWILL, LOSS OF DATA, INTERRUPTION OF BUSINESS,
OR FOR ANY EXEMPLARY, PUNITIVE, SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL
DAMAGES, REGARDLESS OF WHETHER SUCH DAMAGES ARISE UNDER ANY THEORY OF TORT,
CONTRACT, STRICT LIABILITY OR OTHERWISE AND REGARDLESS OF WHETHER SUCH PARTY IS
ADVISED OF THE POSSIBILITY OF ANY SUCH DAMAGES. The aggregate liability of VAXCheck for
any and all claims arising under or in connection with this Agreement or its subject matter shall
not exceed $100.
The above limitation, or exclusion, may not apply to you to the extent that applicable law
prohibits the limitation or exclusion of liability for incidental or consequential damages.
4.8 Essential Part of the Bargain.
The parties acknowledge that the disclaimers and limitations set forth in this Section 4 are an
essential element of this Agreement between the parties and the parties would not have
entered into this Agreement without such disclaimers and limitations.
4.9 Telecommunication Services.
Use of the Website and Service may be available through a compatible mobile device, Internet
and/or network access and may require software. You agree that you are solely responsible for
these requirements, including any applicable changes, updates and fees as well as the terms of
your agreement with your mobile device and telecommunications providers. VAXCHECK MAKES
NO WARRANTIES OR REPRESENTATIONS OF ANY KIND, EXPRESS, STATUTORY OR IMPLIED AS
TO: (a) THE AVAILABILITY OF TELECOMMUNICATION SERVICES FROM YOUR PROVIDER AND
ACCESS TO THE SERVICE AT ANY TIME OR FROM ANY LOCATION; (b) ANY LOSS, DAMAGE, OR
OTHER SECURITY INTRUSION OF THE TELECOMMUNICATION SERVICES; AND (c) ANY
DISCLOSURE OF INFORMATION TO THIRD PARTIES OR FAILURE TO TRANSMIT ANY DATA,
COMMUNICATIONS OR SETTINGS CONNECTED WITH THE SERVICE.
5. INDEMNIFICATION; UNAUTHORIZED USE
5.1 Indemnification.
End-User hereby agrees to indemnify and hold harmless VAXCheck, our officers, employees,
agents, subsidiaries, affiliates, licensors, suppliers and other partners from any and all damages,
costs and expenses (including, without limitation, reasonable attorneys’ fees) suffered or
incurred by VAXCheck in connection with any claims that VAXCheck is required to pay to third
parties to the extent such damages, settlement amounts, costs and expenses are attributable
to End-User’s (a) use of the Website, or (b) provision of content by the End-User Content
through the Service or the App (“End-User Content”), including any actual or alleged volitions of
third party intellectual property by such End-User Content.
5.2 Notification of Unauthorized Use.
End-User shall promptly notify VAXCheck in writing upon its discovery of any unauthorized use
or infringement of the Website, Service, the App, or the related documentation, or VAXCheck's
intellectual property rights with respect thereto. VAXCheck shall have the sole and exclusive
right to bring an infringement action or proceeding against any infringing third party and, in the
event that VAXCheck brings such an action or proceeding, End-User shall cooperate and provide
full information and assistance to VAXCheck and its counsel in connection with any such action
or proceeding.
6. TERM AND TERMINATION
6.1 Term.
End-User’s access to the App and Service shall begin on the date End-User registers for the
Service and shall continue until terminated earlier under the provisions of this Section 6.
6.2 Termination for Convenience.
VAXCheck may terminate End-User’s access to all or part of the Website and/or use of the
Service and the App at any time with or without notifying you. End-User may terminate access
to the Service at any time by cancelling its account for the Service and uninstalling the App.
6.3 Effect of Termination.
Upon the termination of the Service, all license rights of End-User under this Agreement
regarding the Service shall automatically and immediately cease and End-User shall promptly
cease all uses of the Service and shall uninstall the App. Sections 4.6, 4.7, 5, 6.3 and 7 shall
survive the expiration or sooner termination of this Agreement.
7. GENERAL
7.1 Export Compliance.
The Service and the App may be subject to U.S. and other national export controls and
economic sanctions. Individuals or entities owned or controlled, registered in, or related to
Cuba, Iran, Sudan, Syria, or North Korea are not permitted to use the App or access the Service
without prior written permission from VAXCheck once granted by the appropriate jurisdiction.
The rights and obligations of End-User shall be subject to such United States laws and
regulations as shall from time to time govern the license and delivery of technology abroad by
persons subject to the jurisdiction of the United States, including the Export Administration Act
of 1979, as amended, any successor legislation to the Export Administration Act of 1979, and
the Export Administration regulations issued by the Department of Commerce, International
Trade Administration, Office of Export Administration. End-User shall certify that it shall not,
directly or indirectly, export, re-export or transship the Service in such manner as to violate
such laws and regulations in effect from time to time. End-User shall indemnify and hold
harmless VAXCheck from and against any and all losses, claims and expenses incurred by
VAXCheck as a result of the breach of End-User's obligations under this Section.
7.2 Independent Contractors.
In making and performing this Agreement, the parties are acting and shall act as independent
contractors. Neither party is, nor will be deemed to be, an agent, legal representative, joint
venturer or partner of the other party for any purpose.
7.3 Force Majeure.
In the event that VAXCheck is unable to perform its obligations under this Agreement because
of acts of God, strikes, equipment or transmission failure, unavailability or poor performance of
the Internet, or other causes reasonably beyond its control, VAXCheck shall not be liable to the
End-User for any damages resulting from such failure to perform or otherwise from such
causes.
7.4 Governing Law.
This Agreement are governed by the laws of the State of Hawaii, without regard to its choice of
law provisions. The courts of general jurisdiction located within Honolulu, Hawaii, will have
exclusive jurisdiction over any and all disputes arising out of, relating to or concerning this
Agreement or in which this Agreement are a material fact. VAXCheck makes no representation
that materials contained on the Website are appropriate or available for use in other locations,
and accessing them from territories where their contents are illegal is prohibited. If you choose
to access the Website from other locations you do so by your own choice, and are responsible
for obeying local laws.
7.5 Dispute Resolution.
Any controversy or claim between the parties or arising out of this Agreement or any use of the
Service, the App, or the Website shall be determined by one disinterested arbitrator in binding
arbitration pursuant to the Commercial Arbitration Rules and the Supplementary Procedures
for Online Arbitration of the American Arbitration Association (the “AAA”). The arbitrator shall
be experienced in agreements for information technology services, either as an attorney or as
an information technology professional. If the parties fail to appoint an arbitrator within forty-
five (45) days of the institution of the arbitration, the AAA shall select the arbitrator promptly
thereafter. Any requests for accelerated, emergency or preliminary relief shall be submitted
pursuant to the AAA’s Optional Rules for Emergency Measures of Protection. If any such
requests are made before an arbitration panel is empaneled, then the AAA shall appoint one
disinterested arbitrator as an arbitration panel to immediately hear and decide such request.
The arbitration panel shall have the right to grant interim awards. Testimony shall be permitted
by telephone, video conference and other forms of real-time telecommunications. If the
arbitrator requires in-person hearings, the hearings shall be held in Honolulu, Hawaii. The
arbitral award will be final and binding, and may be entered and enforced in any court of
competent jurisdiction.
7.6 Waiver of Jury Trial and Class Actions.
BY ENTERING INTO THIS AGREEMENT, YOU AND VAXCHECK ACKNOWLEDGE AND AGREE TO
WAIVE CERTAIN RIGHTS TO LITIGATE DISPUTES IN COURT, TO RECEIVE A JURY TRIAL OR TO
PARTICIPATE AS A PLAINTIFF OR AS A CLASS MEMBER IN ANY CLAIM ON A CLASS OR
CONSOLIDATED BASIS OR IN A REPRESENTATIVE CAPACITY. YOU AND VAXCHECK BOTH AGREE
THAT ANY ARBITRATION WILL BE CONDUCTED ON AN INDIVIDUAL BASIS AND NOT A
CONSOLIDATED, CLASS-WIDE OR REPRESENTATIVE BASIS AND THE ARBITRATOR SHALL HAVE
NO AUTHORITY TO PROCEED WITH AN ARBITRATION ON A CLASS OR REPRESENTATIVE BASIS.
THE ARBITRATOR MAY AWARD INJUNCTIVE RELIEF ONLY IN FAVOR OF THE INDIVIDUAL PARTY
SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF WARRANTED BY
THAT PARTY’S INDIVIDUAL CLAIM. IF FOR ANY REASON THE ARBITRATION CLAUSE SET FORTH
IN THIS AGREEMENT IS DEEMED INAPPLICABLE OR INVALID, OR TO THE EXTENT THE
ARBITRATION CLAUSE ALLOWS FOR LITIGATION OF DISPUTES IN COURT, YOU AND VAXCHECK
BOTH WAIVE, TO THE FULLEST EXTENT ALLOWED BY LAW, ANY RIGHT TO PURSUE OR TO
PARTICIPATE AS A PLAINTIFF OR AS A CLASS MEMBER IN ANY CLAIM ON A CLASS OR
CONSOLIDATED BASIS OR IN A REPRESENTATIVE CAPACITY.
7.7 Third-Party Sites.
The Website may contain links to third-party websites. VAXCheck is not responsible for the
content, accuracy or opinions expressed on those third-party websites, and those third-party
websites are not investigated, monitored or checked for accuracy or completeness by us.
Inclusion of any linked third-party website on or through the Website does not imply approval
or endorsement of the linked third-party website by VAXCheck. If you decide to leave the
Website and access these third-party websites, you do so at your own risk.
7.8 Public Statements.
Either party may disclose the existence of this Agreement but may not represent to any third
party any positions, statements, intentions or other actions on behalf of the other.
7.9 Assignment.
End-User may not assign any of its rights or privileges, or delegate any of its duties or
obligations hereunder to any third party without the prior written consent of VAXCheck. Any
purported assignment in contravention of this Section shall be null and void. Subject to the
foregoing, this Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective permitted successors and assigns.
7.10 Notices.
All notices and other communications hereunder shall be in writing and shall be deemed
effective when delivered by hand, facsimile transmission, reputable overnight delivery service,
or certified mail (return receipt requested), postage prepaid to: (a) in the case of End-User, to
the address set forth in its account information, and (b) in the case of VAXCheck:
VAXCheck
c/o FirstVitals Health and Wellness Inc
521 Ala Moana Blvd. Suite 261
Honolulu, HI 96813
Email: legal@firstvitals.com
Telephone: (808) 589-0100
7.11 Entire Agreement; Amendment.
This Agreement, including VAXCheck’s Privacy Policy, constitutes the entire agreement between
the parties concerning the subject matter hereof and supersedes all prior understandings and
agreements between the parties, whether written or oral, regarding the subject matter hereof.
VAXCheck may modify this Agreement upon providing written notice to you either via the e-
mail registered under your account or by posting such changes through the App or the Website.
Any use of the Website, App or the Service following any such modification constitutes an
acceptance of the modification. If you do not accept any modification, you must immediately
cease all usage of the App or Website.
7.12 Waivers.
A waiver by either party of a breach or violation of any provision of this Agreement will not
constitute or be construed as a waiver of any subsequent breach or violation of that provision
or as a waiver of any breach or violation of any other provision of this Agreement.
7.13 Severability.
If any provision of this Agreement is held to be unenforceable, it shall be severed and the
remaining provisions will remain enforceable. The severed provision will be replaced by an
enforceable provision most nearly reflecting the intention of the parties.
7.14 Admissibility.
A printed version of this Agreement shall be admissible in judicial or administrative proceedings
based upon or relating to use of our website to the same extent and subject to the same
conditions as other business documents and records originally made and kept in printed form.
7.15 Headings.
The section titles of this Agreement are displayed for convenience only and have no legal effect.
7.16 Third-Party Beneficiaries.
Nothing in this Agreement shall be deemed to give any third-party rights or benefits.