Date of Last Revision: August 18, 2015.
These Terms of Service (these “Terms”) state the requirements of Vivacare, Inc. (“Vivacare”) for the use of its Service and any of the content it makes available through its Service.
By using the Vivacare Service, 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 Services.
VIVACARE RESERVES THE RIGHT TO MODIFY THE TERMS AT ANY TIME BY POSTING SUCH MODIFICATIONS ON THIS PAGE. CONTINUED ACCESS OR USE OF ANY OF THE SERVICES BY FOLLOWING SUCH POSTING SHALL BE DEEMED CONCLUSIVE ACCEPTANCE OF THE MODIFIED AGREEMENT.
Medical Professional Users
The Service is designed for use by medical professionals. 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 must provide Vivacare with certain personal information, including his or her name, profession, a valid and functioning email address, postal address, and other contact information. Additional information may be requested by Vivacare, if necessary, to confirm the identity of the User and his or her qualifications as a medical professional or role in support of a medical professional.
The User also represents and warrants he or she is a licensed healthcare professional in good standing in the state in which the User provides care, or is presently employed by a licensed healthcare professional in good standing in the state in which the professional provides care.
The Vivacare Service is available for Users to do the following:
- Access Vivacare patient education content. The User is provided a Health Library (“Library”) that displays copyright protected health information. The User’s Library is found at a unique URL on one or more website domains controlled by Vivacare. Each user is provided a limited license to print content found within the User’s Library and display that content on a mobile device. The User may not under any circumstances display, transfer, publish or upload Vivacare patient education content to another server or domain name.
- Link to Vivacare patient education content. The User may add links from his or her own website(s) to the health information found on the User’s Library.
- Personalize the patient education content with a personal or organization’s name. Some of the content within the User’s Library may display the name of the User or the name of the medical organization with which the User is affiliated if that organization explicitly approves the use of its name on the Library.
- Publish custom patient education content online. The User may publish his or her own content, including text documents, photographs, images, and other multimedia content for display on the User’s Library.
- Publish professional information online. The User may publish his or her biography and photograph on the Library.
- Publish practice information online. The User may publish information about the organization in which he or she provides care, such as practice locations and office hours, within the Library.
Vivacare may also make future enhancements to the Service from time to time.
Use by Residents of the United States of America
Vivacare controls and operates this Service from the United States of America. This Service is intended for use by medical professionals within the United States only. If you are a non-U.S. resident, you may use this service solely at your own risk and are responsible for compliance with local laws and regulations, if applicable. Any reference to products or services does not imply that Vivacare intends to announce or offer them in your country.
Accurate User Information
The User agrees to provide accurate and current information to Vivacare. The User 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 Service.
The User must not use the services under the auspices of an organization if he or she is not an authorized representative of that organization.
It is the User’s responsibility to inform Vivacare of any changes to that information by updating the information accessible in the User’s online account (“User Account”) or by contacting customer support at email@example.com .
Operation and Modifications
The User 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 Service, temporarily or permanently, with or without notice to the User and is not obligated to support or update the Vivacare Service. Vivacare shall not be liable to the User, or any third party in the event that Vivacare exercises its right to modify or discontinue the Vivacare Service. Unless explicitly stated otherwise, any new features that augments or enhances the current Vivacare Service 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 User and to suspend or terminate access by the User or any designated representatives of the User to the Service or any portion, function or feature thereof at any time.
The User will not rely on Vivacare to preserve any medical information as part of a patient’s medical record. The User 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 User 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 Library without the User 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 email addresses of the User.
The User acknowledges that it is the User’s responsibility to conduct regular reviews of the Content displayed on the Library to ensure that such Content is accurate and acceptable to the User.
Subject to the terms and conditions of this Agreement, Vivacare grants the User a non-exclusive, non-transferable, limited license to use the Service and any software made available by Vivacare to the User for using the Service for the term of this Agreement.
The User’s license to use the Service and its associated content is limited to the internal use by the User.
The User agrees not to resell or make any commercial use of the Service without the express written consent of Vivacare.
Except as provided above, the User 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 Service in whole or in part without the express permission of Vivacare.
Requests for such permission should be made to firstname.lastname@example.org.
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.
The Service is established and controlled by the User through an account (“User Account”) created and maintained with Vivacare in accordance with the terms of this Service Agreement. A User Account is established by the completion of the online Registration form located on websites controlled by Vivacare, including but not limited to vivacare.com and informationrx.com.
Email addresses for the User are provided to Vivacare for the delivery of service updates and other announcements though Vivacare cannot guarantee the delivery of its messages to the User.
Upon registering, the User may provide others with the capability (“Administrative Privileges”) that enable them to make changes to the User Account on behalf of the User, including but not limited to the ability to assign similar administrative privileges to others. The User and those with appropriate Administrative Privileges may delete the User’s account at any time.
The User is responsible for ensuring that all others who are given Administrative Privileges accept and comply with these Terms and manage the User Account in a manner consistent with the User’s wishes.
All modifications made to the User Account are the responsibility of the User and those assigned Administrative Privileges of that User Account.
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 User Account for any reason.
The provision of the Service by Vivacare does not constitute or imply any endorsement or approval by Vivacare of the User, his or her medical organization, or any of its employees or their qualifications, or of any of the information or other Content provided by the User.
Users of the Vivacare service agree to maintain the security of their User Accounts.
- The User will not provide any false personal information on Vivacare, or create an account for anyone else without that other person’s permission.
- The User will not create more than one User account.
- If Vivacare disables the User Account, that individual will not create another User Account without Vivacare’s permission.
- The User will keep contact information accurate and up-to-date.
- If the User selects a name, URL for the Library or other identifier, Vivacare reserves the right to remove or reclaim the name if it believes it is appropriate (such as when a trademark owner complains about the name being displayed on the Library that does not closely relate to a User’s actual name or the User does not have explicit permission to use an organization’s name).
The User 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 User 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 User Account and access to the Service.
All of the trademarks, service marks and logos displayed through the Service or on websites controlled by Vivacare 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, videos, graphics or other material distributed through the Vivacare service or displayed on websites controlled by Vivacare is protected by copyright, patents or other proprietary agreements and laws and the User 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 Service, Content or Websites to the User, his or her medical organization, nor others within the User’s organization.
No Medical Advice
The Vivacare Service may include health information, references, and medical content. This content is not intended to give professional medical advice, nor used in place of a visit, call, consultant with or the advice of a licensed health care provider.
Physicians and other medical professionals should always exercise their own clinical judgment in the provision and communication of medical care.
Optional Service Fees
Vivacare may make additional services available that require payment of an optional fee. These additional services may be made available as a feature enhancement of the User’s Vivacare Health Library and/or the User’s Vivacare Account.
These optional services may include, but are not limited to, additional patient education content licensed from medical publishers and alternative means of distributing patient education content to individuals.
It is the discretion of the User whether to make use of these optional services and to pay the required fee.
User Submission of Media
The User may use the Service to publish content to websites controlled by Vivacare. The User must agree to the following conditions regarding to the provision (uploading) of such content.
- The User must have the rights to the content prior to uploading it. The User agrees to only post or upload media, such as text that has been authored by the User or photographs that have been taken by the User for which they User has all rights to post, to transmit and license, and which do not violate copyright, trademark, privacy or other rights of any other person.
- By uploading any content onto the Vivacare service, you are representing and warranting that you have permission from all persons appearing in your media for you to use the media in this way, and to grant the rights described in these Terms. The User agrees to never post a picture of someone else, or which includes someone else, unless they have that person’s explicit permission.
- The User grants Vivacare the right to display content that the User uploads to the Vivacare service. By uploading any media, like a photo, (a) you grant to Vivacare a perpetual, non-exclusive, worldwide, royalty-free license to use, copy, print, display, reproduce, modify, publish, post, transmit and distribute the media and any material included in the media; and (b) you certify that any person pictured in the submitted media (or, if a minor, his/her parent/legal guardian) authorizes Vivacare to use, copy, print, display, reproduce, modify, publish, post, transmit and distribute the media and any material included in such media; and (c) you agree to indemnify Vivacare and its affiliates, directors, officers and employees and hold them harmless from any and all claims and expenses, including attorneys’ fees, arising from the media and/or your failure to comply with these the terms described in this document.
- The User understands that Vivacare can review and reject any content submission. Vivacare reserves the right to review all media or any other submission prior to or after submission to any of its websites and to remove any media or any submission for any reason, at any time, without prior notice, at our sole discretion.
Monitoring of the Content By Vivacare
The User acknowledges that Vivacare has no obligation to screen or monitor any of the Content delivered through the Service, including but not limited to Vivacare content displayed within the Library.
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 User while using the Service.
This policy shall apply to any use of Vivacare Services by the User and any visitors to websites controlled by Vivacare.
Disclaimer of Warranties
THE USER 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 USER’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. THE USER MUST USE HIS OR HER DISCRETION AND INDEPENDENT JUDGEMENT WHILE VIEWING OR USING THE SERVICE. USER AGREES THAT VIVACARE IS NOT LIABLE TO USER, 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. USER AGREES THAT ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT USER’S OWN DISCRETION AND RISK AND THAT USER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO USER’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 USER FOR THE USE OF THE SERVICE.
Repeat Infringer Policy
Vivacare may, in appropriate circumstances and at its discretion, terminate the Account of the User that infringes the intellectual property rights of others.
The User 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 User and the User’s patients, (b) any Content posted on or through the Service, (c) any activity related to the Account (d) the violation or breach of this Agreement by the User, (e) the infringement by the User’s 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 User on or through the Service, or (g) any dispute regarding the right to establish, modify, access or control the User’s portion of the Service.
Vivacare may terminate the Service with or without cause at any time and effective immediately by notice to the User. Vivacare shall not be liable to the User, or any third party for termination of the Service.
Should the User 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 User’s only recourse is to immediately: (1) discontinue use of the Service; (2) terminate the User Account; and (3) notify Vivacare of termination.
If either party discontinues the Service, Vivacare retains the right to maintain data associated with the User.
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 User may give notice to Vivacare at any time via electronic mail to email@example.com or by certified mail or overnight courier to the following address:
2560 Ninth St., Suite 123B
Berkeley, CA 94710
Attn: Professional Account
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 User 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.