Date of Last Revision: May 2, 2007
Terms of Service
These Terms of Use (these "Terms") state Vivacare, Inc.'s ("Vivacare") requirements for use of its web site (the "Vivacare Site"). By using the Vivacare Site or any of the software and services available through the Vivacare Site (the "Services"), you are agreeing to these Terms. If you do not agree to abide by all of the provisions contained in these Terms, you must not use or access the Site. Vivacare also may make changes to these Terms, which will be posted to this page and will become effective immediately upon posting. For this reason, we urge you to read these Terms each time you visit our Site.
VIVACARE RESERVES THE RIGHT TO MODIFY THE TERMS AT ANY TIME BY POSTING SUCH MODIFICATIONS ON THE VIVACARE SITE. CONTINUED ACCESS OR USE OF ANY OF THE SERVICES BY THE PROVIDER FOLLOWING SUCH POSTING SHALL BE DEEMED CONCLUSIVE ACCEPTANCE OF THE MODIFIED AGREEMENT.
Scope
Vivacare controls and operates this Site from the United States of America. This Site is intended for use by United States residents only and contains information regarding Vivacare Services available for sale or distribution within the United States. If you are a non-U.S. resident, you may access this Site solely at your own risk and are responsible for compliance with local laws and regulations, if applicable. Any references to products or services on the Site do not imply that Vivacare intends to announce or offer these Services in your country.
Registered Users
Visitors to the Vivacare Site may use the public areas of the Site for informational purposes and are subject to these Terms. In addition, certain areas of this Site, as well as the Service, are intended only for use by medical professionals. The Service is designed for use by medical professionals to deliver health-related information to individuals. Accordingly, Vivacare reserves the right to limit access to the Service to medical professionals who register and meet the qualifications imposed by Vivacare.
To register, a medical professional (the "Registrant") must provide Vivacare with certain personal information, including his or her name, Practice name, profession, email address, postal address, date of birth, and other contact information. The Registrant represents and warrants that he or she is an authorized representative of the medical practice that may use the service, and is a licensed healthcare provider in good standing in the state in which the Provider provides care, or is presently the employee of a licensed healthcare provider in good standing in the state in which the Provider provides care.
Accurate Information
The Registrant agrees to provide accurate and current information on all registration forms for the Vivacare Site and the Service. The Registrant agrees not to impersonate any person or entity, misrepresent its affiliation with a person or entity or its authority from such person or entity, or misrepresent the origin of any content posted on, or distributed through, the Vivacare Site or Service.
It is the Registrant's responsibility to inform Vivacare of any changes to that information by updating the information accessible in the Registrant's online account ("Practice Account") or by contacting customer support at support@vivacare.com.
Description of Service
The Practice may use the Service to:
- 1. Display a collection of patient education content for online access by the public ("Library"). This Library appears with the name of the Registrant's medical practice and resides on Internet servers hosted by Vivacare.
- 2. Create a Website that appears with basic information about the Registrant's medical practice. ("Practice Website")
- 3. Create customized messages that may be delivered via the Internet to individuals that opt-in to receive messages from the practice. ("eNewsletter");
Future enhancements to the Service may also be made from time to time by Vivacare.
Vivacare collects patient educational content from a variety of sources and makes it available for the Practice to print out and/or include in the Library. The content may be created by Vivacare, licensed by Vivacare, or may be in the control of other entities on their own Websites that is accessed through hyperlinks.
Operation and Modifications
The Registrant acknowledges that Vivacare has the right to terminate, suspend, and modify in any manner the features, capabilities, functions and other aspects of the Service at any time in its sole discretion. Vivacare reserves the right to modify or discontinue the Vivacare Site or Service, temporarily or permanently, with or without notice to the Registrant and is not obligated to support or update the Vivacare Site or Service. Vivacare shall not be liable to the Registrant, or any third party in the event that Vivacare exercises its right to modify or discontinue the Vivacare Site or Service. Unless explicitly stated otherwise, any new features that augment or enhance the current Vivacare Site shall be subject to these Terms.
Vivacare cannot guarantee the availability of the Service and reserves the right to change, withdraw, suspend or discontinue the Service, or any function or feature thereof, at any time. Vivacare also has the right to withdraw, suspend, discontinue or restrict access to any functionality or feature of the Service available to the Registrant and to suspend or terminate access by the Registrant or any designated representatives of the Registrant to the Service or any portion, function or feature thereof at any time.
Neither the Registrant will rely on Vivacare to preserve any medical information as part of a patient's medical record. The Registrant agrees to release and indemnify Vivacare from any liability that may arise from not preserving any medical information.
Vivacare will, at its own discretion, determine when to inform the Registrant of changes to the Service, and which changes to communicate. Vivacare may, at its own discretion, institute changes to the Service, including the content displayed in the Practice Library ("Content"), without the Registrant approving the changes or taking any action.
If Vivacare communicates a change to the Service, it will do so by sending a message to the primary mailing address of the practice or the email addresses of the Registrant and any designated representatives of the Registrant for which Vivacare has email addresses.
The Registrant acknowledges that it is the Registrant's responsibility to conduct regular reviews of the Content displayed on the Practice Website and Library to ensure that such Content is accurate.
License
Subject to the terms and conditions of this Agreement, Vivacare grants the Registrant a non-exclusive, non-transferable, limited license to use the Service and any software made available by Vivacare to the Registrant for using the Service for the term of this Agreement.
The Registrant's license to use the Service and the Content is limited to the internal use of the Registrant's Practice and its patients in connection with the provision of patient education. The Registrant agrees not to resell or make any commercial use of the Service without the express written consent of Vivacare.
Except as provided above, Registrant may not use, download, upload, copy, print, display, perform, reproduce, publish, license, post, transmit, frame, mirror on another Web service, use any meta tags, inline any graphics or distribute any Content or information from the Vivacare Site in whole or in part without the express permission of Vivacare. Requests for such permission should be made to support@vivacare.com. Any rights not expressly granted herein are reserved. Please be advised that Vivacare enforces its intellectual property rights to the fullest extent of the law.
Accounts
The Service is established and controlled by the Registrant through an account created and maintained with Vivacare (the "Practice Account") in accordance with the terms of this Service Agreement. A Practice Account is established by the completion of the online Practice Registration Form located on the Vivacare Site (www.vivacare.com).
Upon registering, the Registrant may provide medical professionals within the Registrant's Practice ("Staff Members") with access to the Practice Account so that they may use the Service and make changes to the Practice Account on behalf of the Registrant.
The Registrant is responsible for ensuring that all Staff Members accept and comply with these Terms.
All modifications made to the Practice Account are the responsibility of the Registrant, and Registrant is solely responsible for changes made to the Practice Account by Staff Members or other representatives of the Practice.
Email addresses for the Registrant and Staff Members may be provided to Vivacare so that they may receive service updates from Vivacare. Vivacare cannot guarantee the delivery of its messages to the Registrant or Staff Members. The Registrant is the only person with the right to transfer the use of the Practice Account to a different business entity.
Registrant Responsibilities
The Registrant agrees not to post, upload, email, transmit, distribute or otherwise publish or permit on or through the Service any of the following:
- Content that is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, harassing, abusive, threatening, harmful, negligent, invasive of privacy or publicity rights, inflammatory, fraudulent, or misleading or that impersonates any person or entity or otherwise misrepresents the status or affiliation of the individual with any other person or entity;
- Content that would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party, or that would otherwise create liability or violate any local, state, national, or international law
- Content that may infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party. By posting, or permitting the posting of, any Content on or through the Service, the Registrant represents and warrants that he or she has the lawful right to distribute and reproduce such Content;
- Private information of any third party, including without limitation addresses, phone numbers, email addresses, Social Security numbers and credit card numbers, without the express permission of such party and in full compliance with all applicable laws and Vivacare policies applicable to such information;
- Viruses, corrupted data or other harmful, disruptive or destructive files;
- Unsolicited promotions, advertising or solicitations for funds, goods or services, including junk mail, chain letters and spam; and
- Content that, in the sole judgment of Vivacare, is objectionable or which restricts or inhibits any other person from using or enjoying the Service, or which exposes Vivacare or its employees, site partners, contributors or other users of the Service to any harm or liability of any type.
Any use of the Service in violation of the foregoing is in violation of this Agreement and may result in, among other things, the termination of the Practice Account and the Service.
Proprietary Rights
All of the trademarks, service marks and logos displayed on the Vivacare Site, or through the Service on a Practice Account website, are registered or unregistered trademarks of Vivacare, its affiliates or subsidiaries, or third parties who have licensed their trademarks to Vivacare or one of its affiliates or subsidiaries. In addition, all Content, including but not limited to text, software, music, sound, photographs, video, graphics or other material contained on the Vivacare Site, a Practice Account Website the Service, is protected by copyright, patents or other proprietary agreements and laws and the Registrant is only permitted to use the Content as expressly authorized by Vivacare, its affiliates or its licensors. Nothing contained herein transfers any right, title, or interest in the Vivacare Site, any Practice Account website, the Service or the Content to the Registrant, the practice or any Staff Members.
No Medical Advice
The Vivacare Site and the Service may include certain information, reference guides and databases intended for use by licensed medical professionals. These tools are not intended to give professional medical advice. Physicians and other health care providers should always exercise their own clinical judgment for any given situation.
Monitoring of the Service By Vivacare The Registrant acknowledges that Vivacare has no obligation to screen or monitor any of the Content delivered through the Practice Account to individuals via the Service, including but not limited to the eNewsletter.
Vivacare does not exercise editorial control over any such Content and Vivacare shall have no responsibility or liability of any kind in connection with such Content or for any mistakes, omissions, defamation, slander, libel, falsehoods, obscenity, pornography or profanity contained therein or that may be encountered by the Registrant or Staff Members while using the Service.
The provision of the Service by Vivacare does not constitute or imply any endorsement or approval by Vivacare of the Registrant, the Practice or any of its Staff Members or their qualifications, or of any of the information or other Content provided by the Registrant or Staff Members.
Without limiting any of its available rights or remedies, and not withstanding anything herein to the contrary, Vivacare may, but is not obligated to terminate, restrict or suspend the Practice Account for any reason.
Privacy Policy
Please see our Privacy and Security Statement ("Vivacare Privacy Policy") for a detailed description of our information gathering and dissemination practices.
This policy shall apply to any use by the Registrant, the Vivacare Web Site and to any other information obtained by Vivacare in connection with the Service. The Registrant agrees that all use of any information obtained through any use of the Service shall comply with the Vivacare Privacy Policy and all applicable laws and regulations applicable to such information.
Disclaimer of Warranties
REGISTRANT EXPRESSLY AGREES THAT THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS AND THAT USE OF THE SERVICE (AND ANY INFORMATION CONTAINED THEREIN) IS AT THE REGISTRANT'S SOLE RISK. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, VIVACARE EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND WITH RESPECT TO THE SERVICE AND THE INFORMATION CONTAINED THEREIN, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO WARRANTIES OF TITLE AND NON-INFRINGEMENT AND IMPLIED WARRANTIES OF MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE.
WITHOUT LIMITING THE FOREGOING, VIVACARE MAKES NO WARRANTY THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE OR THAT DEFECTS IN THE SERVICE WILL BE CORRECTED. NOR DOES VIVACARE MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE OR AS TO THE ACCURACY, TIMELINESS, COMPLETENESS, ADEQUACY, SUITABILITY, USEFULNESS OR RELIABILITY OF THE SERVICE OR ANY INFORMATION OBTAINED THROUGH THE SERVICE. REGISTRANT MUST USE HIS OR HER DISCRETION AND INDEPENDENT JUDGEMENT WHILE VIEWING OR USING THE SERVICE. REGISTRANT AGREES THAT VIVACARE IS NOT LIABLE TO REGISTRANT, OR ANYONE ELSE FOR ANY DIAGNOSIS, TREATMENT OR DECISION MADE OR FOR ANY ACTION TAKEN IN RELIANCE ON THE INFORMATION PROVIDED THROUGH THE SERVICE. VIVACARE ASSUMES NO RESPONSIBILITY FOR THE DELETION OF OR FAILURE TO STORE OR TIMELY DELIVER, EMAIL OR OTHER MESSAGES.
VIVACARE CANNOT AND DOES NOT WARRANT AGAINST HUMAN AND MACHINE ERRORS, OMISSIONS, DELAYS, INTERRUPTIONS OR LOSSES, INCLUDING LOSS OF DATA. PROVIDER AGREES THAT ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT REGISTRANT'S OWN DISCRETION AND RISK AND THAT REGISTRANT WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO REGISTRANT'S COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOADING. VIVACARE CANNOT AND DOES NOT GUARANTEE OR WARRANT THAT FILES AVAILABLE FOR DOWNLOADING FROM THE SERVICE WILL BE FREE OF INFECTION BY VIRUSES, WORMS, TROJAN HORSES OR OTHER CODE THAT MANIFEST CONTAMINATING OR DESTRUCTIVE PROPERTIES.
Limitation of Liability
VIVACARE WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS, LOSS OF USE, INTERRUPTION OF BUSINESS), REGARDLESS OF THE FORM OF ACTION, ARISING FROM THE USE OF OR INABILITY TO USE THE SERVICE (OR ANY INFORMATION CONTAINED THEREIN). WITHOUT LIMITING THE FOREGOING, IN NO EVENT SHALL VIVACARE'S LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNT, IF ANY, ACTUALLY RECEIVED BY VIVACARE FROM THE REGISTRANT FOR THE USE OF THE SERVICE.
Repeat Infringer Policy
Vivacare may, in appropriate circumstances and at its discretion, terminate the Practice Account of the Registrant that infringes the intellectual property rights of others.
Indemnification
The Registrant, Registrant's Practice, Staff Members, Affiliates and Assigns (Collectively, "the Indemnifying Parties") agrees to defend, indemnify and hold harmless Vivacare, and its directors, affiliates, officers, employees, agents, licensors, suppliers, and any professional associations that may offer, promote or suggest the Service, from and against any claim, demand, liability, losses, expenses and costs (including, but not limited to, reasonable attorneys' fees) arising out of (a) the use of the Service by the Indemnifying Parties and patients, (b) any Content posted on or through the Service, (c) any activity related to the Practice Account (d) the violation or breach of this Agreement by the Indemnifying Parties , (e) the infringement by the Indemnifying Parties' computer or account, of any proprietary or intellectual property right of any third party, (f) the disclosure or handling of any information obtained by the Registrant on or through the Service, or (g) any dispute regarding the right to establish, modify, access or control the Indemnifying Parties' portion of the Service.
Termination Vivacare may terminate the Service with or without cause at any time and effective immediately by notice to the Registrant. Vivacare shall not be liable to the Registrant, or any third party for termination of the Service.
Should the Registrant object to any terms and conditions of this Agreement, or to any subsequent modifications hereto, or become dissatisfied with the Service in any way, the Registrant's only recourse is to immediately: (1) discontinue use of the Service; (2) terminate Service membership; and (3) notify Vivacare of termination.
If either party discontinues the Service, Vivacare retains the right to maintain data associated with the registrant, staff member and practice, with the exception of any individually identifiable health information regarding those individuals that sought medical care from the practice.
Notice
Except as otherwise provided herein, all notices to either party shall be made in writing by conventional certified mail, postage prepaid and return receipt requested or by email. The Registrant may give notice to Vivacare at any time via electronic mail to support@vivacare.com or by certified mail or overnight courier to the following address:
Vivacare
1810 6th St.
Berkeley, CA 94710
Attn: Provider Account
General
This Agreement shall for all purposes be governed by and interpreted in accordance with the laws of the state of California. Any suit or proceeding arising out of or relating to this Agreement shall be commenced in a court of competent jurisdiction sitting in Alameda County, California, and each party irrevocably submits to the jurisdiction and venue of such courts.
Vivacare's failure to insist upon or enforce strict performance of any provision of this Agreement shall not be construed as a waiver of any provision or right hereunder.
No right under this Agreement may be assigned, and no duty under this Agreement may be delegated by either party, except with the prior written consent of the other party. However, Vivacare shall be entitled to assign this Agreement, and all rights and obligations hereunder, to a successor to all or substantially all of its assets, whether by sale, merger or otherwise. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective representatives, heirs, administrators, successors and permitted assigns except as otherwise provided herein.
If any provision(s) of this Agreement is held by a court of competent jurisdiction to be contrary to law or to be otherwise invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the parties with the other provisions remaining in full force and effect, and the remaining provisions of this Agreement will remain in full force and effect.
The Registrant agrees that any claim or cause of action arising out of or related to the Service or this Agreement must be commenced within one (1) year after the claim or cause of action arises; otherwise, such claim or cause of action shall be permanently barred.