Terms of Service
Last updated: February 18, 2016
Please carefully read these terms of service (“Terms”). By accessing the EyeCare Prime service offering specified in your Order (the “Service Offering”) online or in any related software you may install on your computer, you agree to be bound by these Terms between you and EyeCare Prime (the “Agreement”). By clicking the “ACCEPT” button displayed as a part of the online service ordering process you are indicating that you expressly accept this Agreement and if you do not agree to this Agreement, you must not click the “ACCEPT” button and you must not access the Service Offering. “You” or “Customer” means you individually or the entity that you represent. If you are entering into this Agreement for an entity, you represent to us that you have legal authority to bind that entity. “EyeCare Prime,” “we” or “us” means EyeCare Prime LLC, a California limited liability company. Capitalized terms used in this Agreement are defined throughout this Agreement.
1. The Service Offering
This Agreement governs your access to and use of the Service Offering. We may deliver the Service Offering to you with the assistance of our affiliates, licensors and third party service providers. You will comply with all laws, rules and regulations applicable to your use of the Service Offering.
You may access and use the Service Offering solely for your own benefit and only in accordance with this Agreement. To access the Service Offering, you may be required to register for the Service Offering and set up an authorized account with login credentials. You must keep confidential your login credentials. If you set up an authorized account for an organization, you must require that all authorized users of that account keep confidential their login credentials. You must keep your registration information accurate, complete and current for as long as you use the Service Offering. You are responsible for any use that occurs under your customer account, including any activities by you or your employees, contractors or agents. If you believe an unauthorized person has gained access to your login credentials or to the Service Offering, you must notify us as soon as possible.
We have the right to verify your compliance with this Agreement. If we seek to verify that compliance, you will provide information or other materials reasonably requested by us to assist in the verification. We monitor the overall performance and stability of the infrastructure of the Service Offering. You may not block or interfere with that monitoring. If we reasonably believe a problem with the Service Offering may be attributable to Your Content or your use of the Service Offering, you will cooperate with us to identify the source of and resolve that problem.
If you access the Service Offering, or a feature or functionality of the Service Offering, on an evaluation or beta basis (either referred to as the “Evaluation Service”), then you may use the Evaluation Service only for evaluation purposes and for the period we specify (the “Evaluation Period”). Notwithstanding any other provision of this Agreement, we provide the Evaluation Service (a) without support; and (b) “AS IS” and without indemnification or warranty or condition of any kind. Also, certain features or services described in the Service Offering description may not be available for the Evaluation Service. You will not have access to Your Content or the Evaluation Service when it terminates, and the features and functionality of the Evaluation Service do not constitute an implied commitment to offer them to you or anyone as part of the Service Offering on a generally available basis.
The services provided shall depend on the Service Offering you specified in your Order, and the following provides a description of the different types of services offered by EyeCare Prime and covered by these Terms:
- WebSystem3 – a cloud-based patient relationship management system that streamlines email, text and voice communications (“Websystem3 Services“);
- WebSystem3 Unlimited – the Websystem3 Services with unlimited email, text and voice communications (“Websystem3 Unlimited Services“);
- Reach – business listing optimization, social media management and review monitoring services (“Reach Services“);
- Reach & Unlimited WS3 – the Reach Services and the Websystem3 Unlimited Services; and
- Premier – the Websystem3 Unlimited Services plus the Reach Services plus a dedicated consultant executing a turnkey marketing solution across all digital platforms.
You acknowledge and agree that your active cooperation and communication with us is critical to our ability to provide the contracted for Service Offering, and you agree to provide us with all necessary access and modification rights to enable us to provide the Service Offering.
2. Acceptable Use
You and any users accessing the Service Offering through you may not: (a) resell or sublicense the Service Offering; or (b) use or access the Service Offering: (i) in a way prohibited by law, regulation, governmental order or decree; (ii) to violate any rights of others; (iii) to try to gain unauthorized access to, test the vulnerability of, or disrupt the Service Offering or any other service, device, data, account or network; (iv) to spam or distribute malware; (v) in a way that could harm the Service Offering or impair anyone else’s use of it; (vi) in a way intended to work around the Service Offering’s technical limitations, recurring fees or usage limits; or (vii) in any application or situation where failure of the Service Offering could lead to the death or serious bodily injury of any person, or to severe physical or environmental damage. You must ensure that your users comply with the terms of this Agreement, and you agree that if you become aware of any violation by one of your users, you will immediately terminate that user’s access to the Service Offering. If we have reason to believe that you or your users have breached this Agreement, we or our designated representative may review your use of the Service Offering, including your account, Your Content, and your records, to verify your compliance with this Agreement.
You will take steps to ensure that any user does not use the Service Offering to publish or send content that: (a) may create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to anyone; (b) may create a risk of any other loss or damage to any person or property; (c) may constitute or contribute to a crime or tort; (d) contains any information or content that is inaccurate, illegal, unlawful, harmful, abusive, pornographic, racially or ethnically offensive, obscene, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, hateful, humiliating to other people (publicly or otherwise), libelous, threatening, or otherwise objectionable; or (e) contains any information or content that you do not have a right to make available under any law or under contractual or fiduciary relationships. You are responsible for any software, product or service that a third party licenses, sells or makes available to you that you install or use with the Service Offering. Your use of that software, product or service is governed by separate terms between you and that third party. We are not a party to and are not bound by any of those separate terms. You represent and warrant that Your Content does not and will not violate any third-party rights, including any intellectual property rights, and rights of publicity and privacy. You will ensure that your use of the Service Offering complies at all times with your privacy policies and all applicable laws and regulations, including any encryption requirements.
If you become aware that any of Your Content or any user’s access to or use of the Service Offering violates the requirements set forth in this Agreement, you will take immediate action to remove the applicable part of Your Content or suspend the user’s access. We may also ask you to take action within a certain time period, and if you fail to comply with the request, we may suspend or terminate your account as set forth in this Agreement.
3. Your Responsibility for Your Own Legal Compliance
In providing the Service Offering, we may supply certain software tools, applications, and educational and product related content to you. However, you shall remain responsible for any legal and/or regulatory compliance related to your use of the Service Offering, including but not limited to your on-line, social media, e-mail, text, marketing or other activities that you conduct using the Service Offering or the tools. This includes, but is not limited to, Facebook and/or Twitter accounts and the posting of promotional offers and any other content delivered through the Service Offering. We recommend that you seek appropriate legal counsel with regard to appropriate and/or legally mandated boundaries for communicating with or about patients in an interactive setting, because of the inherent potential for voluntary or inadvertent disclosure of patient health information in an interactive social media environment. You agree that you shall obtain any necessary third party consents for the use and disclosure of any third party information or content (i) to us to provide the Service Offering in accordance with the terms and conditions contained in this Agreement; (ii) on your social media or other on-line accounts; and (iii) in any e-mail, text, marketing or other activities.
With respect to e-mail communications sent on your behalf, we and/or our affiliates or third party service providers shall be an initiator but not a sender for purposes of the United States’ CAN-SPAM Act; however, you shall be deemed the sender of such messages, and you shall be solely responsible for complying with your obligations as a sender.
You acknowledge and agree that it is your responsibility to comply, and you shall comply, with all applicable laws and regulations relating to the sending of e-mails and/or text messages and the protection of patient health information. For users of the Service Offering in the United States, this includes but is not limited to compliance with the CAN-SPAM Act, the Telephone Consumer Protection Act (TCPA), the Health Insurance Portability and Accountability Act of 1996, as amended by the Health Information Technology for Economic and Clinical Health Act of 2009, and their implementing regulations, including the Privacy Standards adopted by the U.S. Department of Health and Human Services, the Security Standards adopted by the U.S. Department of Health and Human Services, the Breach Notification Standards adopted by the U.S. Department of Health and Human Services, as well as related state laws and/or regulations, as such laws and regulations may be updated and amended from time to time.
4. Your Responsibility for Social Media Administration
You agree that we will not have any obligation to monitor or remove third party comments or content posted on your Facebook, Twitter or other social media accounts. You agree that you have the exclusive responsibility to monitor the interactive content posted on your Facebook, Twitter or other social media accounts, and you agree that you shall comply with all rules, policies, terms and conditions of Facebook, Twitter and any other social media site, as applicable.
5. Intellectual Property Rights; License
We hereby grant to you, during the term of this Agreement, a non-exclusive, non-transferrable, limited right to use the Service Offering solely for your own business purposes, subject to the terms and conditions contained in this Agreement
We and our licensors and third party service providers own and retain all right, title and interest in and to the Service Offering, any related software and any content provided by us or on our behalf through the Service Offering, including all improvements, enhancements, modifications and derivative works thereof, and all intellectual property rights therein. This includes any information that we collect and analyze in connection with the Service Offering, such as usage patterns, user feedback and other information to improve and evolve our software products and services offerings. Your rights to use the Service Offering are limited to those expressly granted in this Agreement, and all rights not expressly granted to you are reserved by us and our licensors and third party service providers. No other rights with respect to the Service Offering, any related software, or any related intellectual property rights are implied. Certain of our service offerings incorporate and use technology, intellectual property and other information owned by third parties. While we have obtained certain licenses to offer these tools to you, you may be required to accept and agree to abide by the terms and conditions of use of the third-party service provider. Each third-party service provider shall maintain any and all ownership interests in its respective tool and nothing in this Agreement shall be deemed to grant you any ownership interest into any third-party’s intellectual property. We shall not be responsible for obtaining any further authorization or license for you to use any third-party product; you are solely responsible for ensuring that you comply with any such third-party’s licenses and conditions of use.
You and your authorized users retain all right, title and interest in and to any information and content developed by you or your authorized users and uploaded to or published or displayed through the Service Offering by you and your authorized users, including any and all patient or customer data, and all Intellectual Property Rights therein (“Your Content”). You shall have the sole responsibility for the accuracy, quality, integrity, legality, and intellectual property ownership or right to use of all of Your Content. Our rights to access and use Your Content are limited to those described in this Agreement.
We will be free to use for any purpose any feedback (such as comments or suggestions) that you provide to us regarding the Service Offering. You hereby grant to us a non-exclusive, perpetual, irrevocable, royalty-free, transferable, worldwide right and license, with the right to sublicense, to use, reproduce, perform, display, disclose, distribute, modify, prepare derivative works of and otherwise exploit the feedback without restriction in any manner now known or in the future conceived and to make, use, sell, offer to sell, import and export any product or service that incorporates the feedback.
The educational and/or product-related content supplied by us or our affiliates or third party service providers remains the property of the supplying party and is to be used by you pursuant to a limited license which may be revoked. You agree that your use of the Service Offering and all social media activities and email communications will be conducted and managed by you in compliance with our or our affiliate’s or third party service provider’s guidelines for using our and their respective trademarks and copyrights. You acknowledge that the materials and information supplied by us or our affiliates or third party service providers as content for social media sites are protected by copyright and/or trademark laws. You may use and reproduce such materials only as directed and authorized by us or our affiliates or third party service providers, as applicable.
You shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service Offering or the content provided by us or on our behalf through the Service Offering in any way; (ii) modify or make derivative works based upon the Service Offering or the content provided by us or on our behalf through the Service Offering; or (iii) reverse engineer or access the Service Offering in order to build a competitive product or service or copy any ideas, features, functions or graphics of the Service Offering.
If you are granted access to any of our, our affiliates’ or our third party service providers’ APIs (the “APIs”) as part of the Service Offering, you may not (i) use the APIs other than in connection with the Service Offering; (ii) attempt to cloak or conceal your identity or your application’s identity when requesting authorization to use the APIs; (iii) use the APIs to transmit inaccurate or unauthorized information, or for any application that constitutes, promotes or is used in connection with spyware, adware, or any other malicious programs or code; (iv) use the APIs in a manner that adversely impacts the stability of the API’s servers or adversely impacts the behavior of other applications using the APIs; (v) sell, lease, or sublicense the APIs or access thereto or derive revenues from the use or provision of the APIs, whether for direct commercial or monetary gain or otherwise; or (vi) give any third party access to the APIs without our prior written approval in each instance. We reserve the right to suspend or terminate your access to the APIs at any time if we reasonably believe the terms of this section have been breached.
7. Use of Information
You acknowledge that by providing the Service Offering, EyeCare Prime, our affiliates and our third party service providers may have access to information relating to you, Your Content and users of your internet platforms (collectively, “Customer Content”). You hereby consent to EyeCare Prime’s, our affiliates’ and our third party service providers’ access, collection, use and disclosure of all Customer Content, subject to the restrictions set forth in this section. Except in accordance with this Agreement, or as required by law or regulation, Customer Content in personally identifiable form will not be disclosed, sold, assigned or licensed by us to any third party. In providing the Service Offering, neither we, nor our affiliates nor our third party service providers shall knowingly collect personally identifiable information from or about children under the age of 13. You agree and consent that EyeCare Prime, our affiliates and our third party service providers may collect and use Customer Content to provide and improve the Service Offering provided to you, to customize the Service Offering to your preferences, to communicate information to you, for marketing and research purposes, and for any other purpose specified.
8. Orders; Payment; Taxes
All Orders issued to EyeCare Prime are subject to the terms of this Agreement and are not binding until accepted by EyeCare Prime. An “Order” means the internet order page, or other ordering document, that specified your purchase of the Service Offering. We are not required to provide any Service Offering to you until you provide all information we require for processing your Order. Your Order will be deemed accepted when we authorize your access to the purchased Service Offering.
Your Order will specify the service fees for the Service Offering which may change as described in this Agreement (“Service Fees”). Service Fees shall be due and payable by you on a monthly basis. EyeCare Prime or one of its affiliates will charge and bill your credit card or issue an invoice to you on a monthly basis for the applicable Service Fees and applicable Taxes, if any, for your Service Offering. If we or one of our affiliates issues you an invoice, you shall be obligated to pay the invoiced amount in the amount and currency specified in your invoice no later than 30 days after the date of the invoice. No refunds will be available for Service Fees you have paid unless you were billed in error. We may increase the Service Fees or add new fees for the Service Offering by notifying you at least thirty (30) days in advance, provided that if we increase the Service Fees or add new fees for the Service Offering you will have the right to terminate your use of the Service Offering by providing us with written notice of your intent to terminate within thirty (30) days of our notice to you of any such increase or new fees.
The Service Fees may include license fees for basic elements of third-party software and tools associated with the Service Offering. If you utilize additional software, tools or programs offered by us or one of our third-party service providers, such items may not be covered by the Service Fees paid under this Agreement and you may be required to pay additional fees for such items, as agreed between you and us or the applicable third-party provider.
By submitting your credit/debit card (“Payment Card“) data to EyeCare Prime, you authorize us to submit a financial transaction(s) to your issuing bank for settlement of amount(s) due and payable by you for the Service Offering. If you believe there is an error on your account, including an incorrect amount or unauthorized transaction, you agree to contact us prior to the next billing cycle. Upon proper notification, EyeCare Prime, in its sole discretion, may issue a credit to your Payment Card. You represent and warrant that all Payment Card and other billing information that you provide to us is accurate and correct.
Service Fees for the Service Offering fees are exclusive of Taxes. “Taxes” means any sales, VAT, GST (Goods and Services Tax), use, gross receipts, business and occupation, and other taxes (other than taxes on our income), export and import fees, customs duties and similar charges imposed by any government or other authority. Any and all Taxes associated with your purchase or use of the Service Offering are your responsibility and you are responsible for paying any and all such Taxes. If we have the legal obligation to pay or collect Taxes (or an amount in respect of Taxes) applicable to your purchase or use of the Service Offering, the appropriate amount shall be invoiced to and paid by you, unless you provide us with a valid tax exemption certificate authorized by the appropriate taxing or regulatory authority. You are responsible for providing us with a valid tax exemption certificate if applicable. You hereby confirm that we can rely on the name and address you provide to us when you agree to the Service Offering or in connection with your payment method as being the place of supply for sales tax and income tax purposes or as being the place of supply for VAT purposes where you have established your business.
9. Term and Termination
This Agreement shall commence on the day that you submit your order for the Service Offering (the “Service Start Date”) and shall continue for a period of twelve (12) months following the Service Start Date (the “Initial Term“). Upon completion of the Initial Term, this Agreement shall automatically renew for successive twelve month periods (each, a “Renewal Term“) until and unless you provide us with written notice of your intent not to renew at the end of the Initial Term or a Renewal Term no later than thirty (30) days before the end of the Initial Term or any Renewal Term.
We may immediately suspend or terminate this Agreement upon sending you an email notice if you (i) breach any provision of this Agreement and such breach has not been cured within 15 days of the date we provide notice of such breach; (ii) commit a breach of this Agreement that cannot be cured; (iii) become insolvent, admit in writing your inability to pay your debts as they mature, make an assignment for the benefit of creditors, or become subject to control of a trustee, receiver or similar authority or any bankruptcy or insolvency proceeding. In addition to the foregoing, we may terminate this Agreement at any time with or without cause upon 90 days prior written notice.
Upon the effective date of termination of this Agreement for any reason, (a) all rights granted to you under this Agreement, including your ability to access the Service Offering, will immediately terminate; (b) you must promptly discontinue all use of the Service Offering and delete or destroy any of our Confidential Information; and (c) you acknowledge and agree that we will have no obligation to retain any Customer Content and we may delete such Customer Content.
10. DISCLAIMER OF WARRANTIES
THE SERVICE OFFERING IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE AND OUR AFFILIATES, LICENSORS AND SERVICE PROVIDERS DISCLAIM ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, SATSIFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, SECURITY, ACCURACY, FREEDOM FROM VIRUSES OR OTHER HARMFUL CODE, AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE, RELATING TO THE SERVICE OFFERING OR ANY SOFTWARE, MATERIALS, CONTENT, TECHNOLOGY OR OTHER SERVICES PROVIDED TO YOU UNDER THIS AGREEMENT. WE AND OUR AFFILIATES, LICENSORS AND SERVICE PROVIDERS DO NOT WARRANT OR REPRESENT THAT ACCESS TO, CONTENT OF OR OPERATION OFTHE SERVICE OFFERING, SOFTWARE, TECHNOLOGY, WEB SITES AND OTHER APPLICATIONS WILL BE UNINTERRUPTED OR FREE FROM ERRORS OR DEFECTS, OR THAT THE SERVICE OFFERING WILL MEET (OR IS DESIGNED TO MEET) YOUR BUSINESS REQUIREMENTS. YOU ASSUME FULL RESPONSIBILITY AND RISK OF LOSS RESULTING FROM DOWNLOADING AND/OR USE OF FILES, INFORMATION, CONTENT OR OTHER MATERIAL OBTAINED AS PART OF THE SERVICE OFFERING.
You agree to indemnify and hold EyeCare Prime and its affiliates, licensors, third party service providers and partners, and its and their respective officers, directors, agents and employees, harmless from any third party claim or demand (including reasonable attorney’s fees) due to or arising from or relating to: (a) Your Content; (b) any infringement or misappropriation of any intellectual property rights by you, your users or your suppliers in connection with your use of the Service Offering; (c) any violation of law or the rights of any third party by you or your users; or (d) any breach by you or your users of your responsibilities or obligations under this Agreement. You may not settle or compromise any indemnified claim without our prior written consent.
12. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL WE OR OUR OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, LICENSORS OR THIRD PARTY SERVICE PROVIDERS BE LIABLE FOR ANY LOST PROFITS OR BUSINESS OPPORTUNITIES, LOSS OF USE OF THE SERVICE OFFERING OR YOUR CONTENT, LOSS OF REVENUE, LOSS OF GOODWILL, BUSINESS INTERRUPTION, LOSS OF DATA, OR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES UNDER ANY THEORY OF LIABILITY, WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, PRODUCT LIABILITY OR OTHERWISE. IN ANY EVENT, OUR LIABILITY UNDER THIS AGREEMENT WILL NOT, REGARDLESS OF WHETHER THE CLAIM IS BASED IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EXCEED THE GREATER OF: (A) THE AGGREGATE FEES PAID OR PAYABLE TO US FOR YOUR ACCESS TO AND USE OF THE SERVICE OFFERING IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM, OR (B) FIVE THOUSAND U.S. DOLLARS ($5,000 USD) (OR THE EQUIVALENT IN LOCAL CURRENCY), REGARDLESS OF WHETHER WE OR OUR AFFILIATES, LICENSORS OR THIRD PARTY SERVICE PROVIDERS HAVE BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES AND REGARDLESS OF WHETHER ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE. THE LIMITATIONS OF LIABILITY IN THIS PARAGRAPH WILL NOT APPLY TO (A) EYECARE PRIME’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT OR (B) ANY LIABILITY WHICH MAY NOT BE EXCLUDED BY APPLICABLE LAW.
Our affiliates, licensors and third party service providers will have no liability of any kind under this Agreement. You may not bring a claim under this Agreement more than twelve (12) months after the cause of action arises.
You acknowledge the proprietary and confidential nature of the Service Offerings and any and all of our, our affiliates’ and our third party service providers’ information provided to you through the Service Offerings, including but not limited to our, our affiliates’ and our third party service providers’ trade secrets, intellectual property and proprietary rights, business and financial information, technical information, processes and the terms of this Agreement (collectively, the “Confidential Information”). You agree: (i) not to use Confidential Information for any purpose other than use of the Service Offerings pursuant to this Agreement: and (ii) not to disclose our Confidential Information to any third party without our prior written consent. At a minimum, you agree to limit access to our Confidential Information to (A) legal or financial advisors; or (ii) pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that you give reasonable prior notice to us in order to give us an opportunity to contest such order or requirement.
14. Additional Terms for Reach Services Service Offering
The additional terms in this section apply solely to our Reach Services Service Offering which provides business listing optimization, social media management and review monitoring services. We engage a third party service provider to provide all or a portion of the Reach Services (our “Reach Partner”), and our Reach Partner is the source of record for your business listing information. You hereby grant to us and to our Reach Partner a license to use and distribute Your Content which has been provided by you in connection with the Reach Services Service Offering (“Your Reach Content”) in connection with the provision of products and services to you and to our Reach Partner’s other customers. You hereby grant our Reach Partner the right to grant to its publisher partners nonexclusive, perpetual, irrevocable, royalty-free use rights with respect to Your Reach Content, including, but not limited to, rights to publish and syndicate Your Reach Content.
The digital location management services (“Digital Location”) on third-party maps, apps, GPS systems, social networks, directories, and search engines provide Your Reach Content through third party publishers (“Publishers”). If a Publisher that is included in your Service Offering is dropped from our Reach Partner’s publisher network, or if that Publisher no longer accepts listings for you for any reason, then such Publisher shall no longer be included in your Reach Services Service Offering. Publishers may incorporate your location data within their databases and may make the location data available to their respective data customers both during and after the term of this Agreement. You may be required by certain Publishers (for example, Facebook) to agree to such Publisher’s terms and conditions or other policies regarding use of such Publisher sites. In such event, if you wish to be published with such Publisher’s site, you hereby agree to comply with (and to ensure that Your Reach Content complies with) all such terms. Upon any actual or alleged failure of you to comply, in addition to our other rights and remedies, we will have the right to immediately suspend access to that Publisher or suspend provision of the Reach Services until such failure is cured by you and/or, if directed by the Publisher, to terminate the Reach Services.
We or our Reach Partner may offer you access to an API (the “Reviews API”) that allows you the ability to pull reviews into third-party or in-house services. Use of this feature may require support from our engineering team to build the Reviews API. Any content provided via the Review API may not be used other than for your internal analysis of such reviews. In addition, (i) you may display the content of the reviews provided via the Review API on an internal dashboard that is accessible only by your employees for the purposes of performing such analysis; (ii) you will not disclose the content of any of the reviews to the public or to any third party without our prior written consent; (iii) the advice, opinions, offers, statements, or other information or other user content in the reviews are those of their respective authors, and said authors are solely responsible for such reviews; and (iv) we and our Reach Partner cannot and do not guarantee the accuracy, usefulness, or completeness of any reviews, or endorse, adopt, or accept responsibility for the reliability or accuracy of any reviews. Under no circumstances will we, our affiliates or our Reach Partner be responsible for any loss or damages resulting from any information or other user content made available in a review, or any reliance thereupon.
The Reach Services may provide you with assistance in working with Google to upload location data, claim listings and resolve issues going live, and if so, (A) you are responsible for obtaining and maintaining verification of your business(es) with Google; (B) neither we nor our Reach Partner is responsible for resolving any verification or ownership issues with Google, and cannot commence uploading of any data until your business is verified and any such issues are resolved; (C) our Reach Partner will use commercially reasonable efforts to help resolve conflicts and/or errors occurring during the upload process; (D) our Reach Partner will repeat this process after receiving each new major file from you, no more frequently than once per month; (E) neither we nor our Reach Partner makes any guarantees as to the final content that will be displayed on Google nor makes any guarantees as to the verification or rejection of any locations by Google; and (F) neither we nor our Reach Partner shall be under any obligation to provide any assistance in the event of an ownership conflict.
15. Governing Law; Venue; Dispute; Waiver of Class Action
This Agreement shall be governed by California state law without reference to conflict of laws principles. The United Nations Convention for the International Sale of Goods does not apply. This Agreement does not affect your statutory rights that cannot be waived or changed by contract. The prevailing party in any suit or proceeding shall have the right to recover its costs and reasonable fees of attorneys and other professionals incurred in connection with the action and any appeal.
You and EyeCare Prime each agree that any action, suit, proceeding or claim arising under or by reason of this Agreement shall be solely commenced or prosecuted in the state or federal courts located in San Francisco, California. You irrevocably consent to the jurisdiction and venue of the courts identified in the preceding sentence in connection with any action, suit, proceeding, or claim arising under or by reason of this Agreement. YOU AND EYECARE PRIME EACH AGREE TO WAIVE THE RIGHT TO A TRIAL BY JURY.
YOU AND EYECARE PRIME EACH AGREE THAT ANY AND ALL DISPUTES MUST BE BROUGHT IN THE PARTY’S INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. YOU AGREE TO WAIVE THE RIGHT TO PARTICIPATE IN A CLASS ACTION OR LITIGATE ON A CLASS-WIDE BASIS. YOU AGREE THAT YOU HAVE EXPRESSLY AND KNOWINGLY WAIVED THESE RIGHTS.
16. Severability; Waivers; Construction.
If any provision of this Agreement is held to be invalid, illegal or unenforceable, the validity and enforceability of the remaining provisions shall not be affected in any way, and the parties shall use their best efforts to substitute a valid and enforceable provision that most nearly affects the purposes of the provision.
The waiver of any breach of any provision of this Agreement will not constitute a waiver of any other provision or any later breach.
The headings of sections of this Agreement are for convenience and are not for use in interpreting this Agreement. As used in this Agreement, the word ‘including’ means “including but not limited to.”
You may not assign or transfer this Agreement, in whole or in part, by operation of law or otherwise, without our prior written consent. Any attempted assignment or transfer without that consent will be void. Subject to these limits, this Agreement will bind and inure to the benefit of the parties and their respective successors and assigns.
18. Third Party Rights.
Other than as expressly provided in this Agreement, this Agreement does not create any rights for any person who is not a party to it, and no person who is not a party to this Agreement may enforce any of its terms or rely on any exclusion or limitation contained in it.
Any notice delivered by us to you under this Agreement will be delivered by email to the email address associated with your account or by mail to the mail address associated with your account. You will direct legal notices or other correspondence to EyeCare Prime LLC, 6150 Stoneridge Mall Rd., Suite 370, Pleasanton, CA 94588, Attention: Legal Department.
20. Entire Agreement.
This Agreement, as it may be revised by us, is the entire agreement of the parties regarding its subject matter. This Agreement supersedes and replaces all prior or contemporaneous communications, understandings and agreements, whether written or oral, between the parties regarding its subject matter. The terms of this Agreement will supersede and control over any conflicting or additional terms and conditions of any other purchasing related document issued by you.
EyeCare Prime may change or modify the Service Offering or the terms of this Agreement from time to time, at its sole discretion, and your continued use of the Service Offering constitutes your acceptance of such changes or modifications. It is your responsibility to regularly check the Service Offering and this Agreement (which is posted on our website) for any updates, changes or modifications. You can determine when this Agreement was last revised by referring to the “Last Revised” legend at the top of this page. Any changes in this Agreement take effect upon posting and will only apply to use of the Service Offering after that date.
22. Government Regulations.
For purposes of sales to government entities in the U.S.: The Service Offering and its documentation are deemed to be “commercial computer software” and “commercial computer software documentation,” respectively, pursuant to DFARS Section 227.7202 and FAR Paragraph 12.212(b), as applicable. Any use, modification, reproduction, release, performing, displaying or disclosing of the Service Offering and documentation by or on behalf of the U.S. Government will be governed solely by the terms and conditions of this Agreement.
23. Compliance with Laws; Export Control.
Each party will comply with all laws applicable to the actions contemplated by this Agreement. You acknowledge that the Service Offering is of United States origin, is provided subject to the U.S. Export Administration Regulations (including “deemed export” and “deemed re-export” regulations), and may be subject to the export control laws of the applicable country. You represent and warrant that (a) you are not, and are not acting on behalf of, (1) any person who is a citizen, national, or resident of, or who is controlled by, the government of any country to which the United States has prohibited export transactions; (2) any person or entity listed on the U.S. Treasury Department list of Specially Designated Nationals and Blocked Persons, or the U.S. Commerce Department Denied Persons List or Entity List, or any similar designated persons list published for the jurisdiction in which the data center you choose for the Service Offering is located; (b) you will not permit the Service Offering to be used for any purposes prohibited by law, including any prohibited development, design, manufacture or production of missiles or nuclear, chemical or biological weapons; (c) Your Content will not be classified or listed on the United States Munitions list or similar list published for the jurisdiction in which the data center you choose for the Service Offering is located, or contain defense articles, defense services or ITAR-related data; (d) Your Content will not require an export license and is not restricted under applicable export control laws from export to any country where EyeCare Prime or Eye Care Prime’s affiliates or service providers maintain facilities or personnel; and (e) you are not subject, either directly or indirectly, to any order issued by any agency of the United States government, revoking or denying, in whole or in part, your United States export privileges. You will notify EyeCare Prime immediately if you become subject to any such order.
24. Nature of Agreement.
Nothing in this Agreement shall be construed to create (i) a partnership, joint venture or other joint business relationship between the parties or any of their affiliates or third party service providers; (ii) any fiduciary duty owed by one party to another party or any of its affiliates or third party service providers; or (iii) a relationship of employer and employee between the parties or any of their affiliates or third party service providers.
Sections 5, 6, 7, 9, 11, 12, 13, 14, 15, 16, 18, 25 and 27 of this Agreement shall survive the expiration or earlier termination of this Agreement, and any other provisions of this Agreement which by their nature should survive the expiration or earlier termination of this Agreement shall so survive.
26. Force Majeure.
EyeCare Prime shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control or unforeseen circumstances such as acts of nature or God, fire, flood, earthquake, accidents, strikes, war, terrorism, governmental act, failure of common carriers (including without limitation Internet service providers and web hosting providers), or shortages of transportation facilities, fuel, energy, labor or materials.
27. Business Associate Agreement.
The following provisions apply only if you are subject to the United States HIPAA Rules (as defined below):
To comply with the federal Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), as amended by the Health Information Technology for Economic and Clinical Health Act of 2009 (“HITECH”), and their implementing regulations, including the Privacy Standards adopted by the U.S. Department of Health and Human Services as they may be amended from time to time, 45 C.F.R. parts 160 and 164, subparts A and E (the “Privacy Rule”), the Security Standards adopted by the U.S. Department of Health and Human Services as they may be amended from time to time, 45 C.F.R. parts 160, 162 and 164, subpart C (the “Security Rule”), the Breach Notification Standards adopted by the U.S. Department of Health and Human Services, as they may be amended from time to time, at 45 C.F.R. part 164, subpart D (the “Breach Notification Rule”), as well as related state laws and/or regulations (collectively, the “HIPAA Rules”), you and we each hereby acknowledge and agree that, if subject to the HIPAA Rules, you are a covered entity (“Covered Entity”) and EyeCare Prime is a business associate (“Business Associate”).
WHEREAS, Business Associate provides the Service Offering to Covered Entity and in connection with the Service Offering, Covered Entity may disclose to Business Associate certain Protected Health Information (“PHI”) (as defined below) that is subject to protection under the HIPAA Rules;
WHEREAS, if Business Associate performs or assists in performing certain functions or activities for or on behalf of Covered Entity that involve the use or disclosure of PHI, the HIPAA Rules require that Covered Entity receive adequate assurances that Business Associate will comply with certain obligations with respect to the PHI received in the course of providing services to or on behalf of Covered Entity; and
WHEREAS, Business Associate and Covered Entity each agree that the terms in this Section 27 will have no effect unless and until Business Associate performs or assists in performing certain functions or activities for or on behalf of Covered Entity that involve the use or disclosure of PHI.
NOW THEREFORE, in consideration of the mutual promises and covenants herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Business Associate and Covered Entity each agree to the terms and conditions in this Section 27 (hereinafter referred to as the “BAA”).
- Unless otherwise provided, all capitalized terms in the BAA will have the same meaning as provided under the HIPAA Rules.
- Protected Health Information or PHI: Protected Health Information or PHI, as defined by the Privacy Rule, for this Agreement means PHI that is created, received, maintained, or transmitted on behalf of Covered Entity by Business Associate pursuant to this Agreement.
B. Purposes for which PHI May Be Disclosed to Business Associate.
In connection with the services provided by Business Associate as part of the Service Offering to or on behalf of Covered Entity, Covered Entity may disclose PHI to Business Associate during the performance of service and support activities in compliance with HIPAA.
C. Obligations of Business Associate.
- Compliance with Laws. Business Associate agrees to comply with the provisions of the HIPAA Rules that are applicable to Business Associate.
- Use and Disclosure of PHI. Business Associate may use or disclose PHI as Required by Law. Business Associate shall not use or further disclose PHI other than as permitted or required by this Agreement or as Required by Law. Business Associate shall not use or disclose PHI in a manner that would violate the HIPAA Rules if used or disclosed by Covered Entity, provided, however, that Business Associate may use and disclose PHI as necessary for the proper management and administration of Business Associate, for the specific uses and disclosures set forth in this Agreement, and to carry out its legal responsibilities. Business Associate agrees, to the extent that Business Associate is to carry out one or more of Covered Entity’s obligation(s) under Subpart E of 45 C.F.R. Part 164, to comply with the requirements of Subpart E of 45 C.F.R. Part 164 that apply to Covered Entity in the performance of such obligation(s).
- Safeguards. Business Associate shall maintain appropriate safeguards to ensure that PHI is not used or disclosed in violation of this Agreement or applicable law. Business Associate shall implement administrative, physical and technical safeguards that reasonably and appropriately protect the confidentiality, integrity, and availability of any electronic PHI it creates, receives, maintains, or transmits on behalf of Covered Entity and to comply with Subpart C of 45 C.F.R. Part 164 with respect to such electronic PHI to prevent use or disclosure of PHI other than as provided for by this Agreement.
- Disclosure to Agents and Subcontractors. If Business Associate discloses PHI received from Covered Entity, or created, received, maintained, or transmitted by Business Associate on behalf of Covered Entity, to agents, including a subcontractor, Business Associate shall, in accordance with 45 CFR 164.502(e)(1)(ii) and 164.308(b)(2), if applicable, ensure that any agents or subcontractors that create, receive, maintain, or transmit PHI on behalf of Business Associate agree to the same restrictions, conditions, and requirements that apply to Business Associate under this Agreement with respect to such information. Business Associate shall ensure that any such agent, including a subcontractor, agrees to implement reasonable and appropriate safeguards to protect the confidentiality, integrity, and availability of the electronic PHI that it creates, receives, maintains, or transmits on behalf of Covered Entity.
- Minimum Necessary. Business Associate agrees to make reasonable efforts to limit use and disclosure of PHI to the minimum necessary to accomplish the intended purposes, consistent with Business Associate’s policies and procedures.
- Individual Rights. Business Associate agrees as follows:
a. Individual Right to Copy or Inspection. To the extent Business Associate or its agents or subcontractors maintains PHI in a Designated Record Set, if an Individual makes a request for access directly to Business Associate, Business Associate will within fifteen (15) business days forward such request in writing to Covered Entity. Covered Entity will be responsible for making all determinations regarding the grant or denial of an Individual’s request for PHI and Business Associate will make no such determinations. Except as Required by Law, only Covered Entity will release and be responsible for releasing PHI to an Individual pursuant to such a request.
b. Amendment of an Individual’s PHI or Record. To the extent Business Associate or its agents or subcontractors maintains PHI in a Designated Record Set, if an Individual makes a request for an amendment of his or her PHI or record directly to Business Associate, Business Associate will within fifteen (15) business days forward such request in writing to Covered Entity, and Business Associate will incorporate any such amendment upon written request from Covered Entity. Covered Entity will be responsible for making all determinations regarding the grant or denial of an Individual’s request for an amendment, and except as Required by Law Business Associate will make no such determinations.
c. Accounting of Disclosures. Business Associate agrees to maintain documentation of the information required to provide an Accounting of Disclosures of PHI in accordance with 45 C.F.R. § 164.528, and to make this information available to Covered Entity upon Covered Entity’s request, in order to allow Covered Entity to respond to an Individual’s request for Accounting of Disclosures. Such accounting is limited to disclosures that were made in the six (6) years prior to the request (not including disclosures prior to the compliance date of the Privacy Rule) and shall be provided for as long as Business Associate maintains the PHI. If an Individual requests an Accounting of Disclosures directly from Business Associate, Business Associate will forward the request and its Disclosure record to Covered Entity within fifteen (15) business days of Business Associate’s receipt of the Individual’s request. Covered Entity will be responsible for preparing and delivering the Accounting to the Individual. Except as required by law, Business Associate will not provide an Accounting of its Disclosures directly to any Individual.
- Internal Practices, Policies and Procedures. Except as otherwise specified in this Agreement, Business Associate shall make available its internal practices, books, and records relating to the use and disclosure of PHI received from, or created or received on behalf of, Covered Entity to the Secretary or his or her agents or authorized designees for the purpose of determining Covered Entity’s compliance with the HIPAA Rules.
- Withdrawal of Authorization. If the use or disclosure of PHI in this Agreement is based upon an Individual’s specific authorization for the use or disclosure of his or her PHI, and the Individual revokes such authorization, the effective date of such authorization has expired, or such authorization is found to be defective in any manner that renders it invalid, Business Associate shall, if it has received notice from Covered Entity pursuant to Section E.1. of this BAA of such revocation, expiration, or invalidity, cease the use and disclosure of the Individual’s PHI except to the extent it has relied on such use or disclosure, or if an exception under the HIPAA Rules expressly applies.
- Security Incident. Business Associate agrees to report to Covered Entity any Security Incident of which Business Associate becomes aware.
- Use of Disclosure of PHI Not Provided for by this Agreement. Business Associate agrees to report to Covered Entity any use or disclosure of PHI not provided for by this Agreement of which Business Associate becomes aware.
- Breaches of Unsecured PHI: Business Associate will report in writing to Covered Entity any Breach of Unsecured Protected Health Information, as required at 45 C.F.R. § 164.410 of which it becomes aware, within fifteen (15) business days of the date Business Associate learns of the incident giving rise to the Breach.
D. Rights of Business Associate.
- Management and Administration. Except as otherwise limited in this Agreement, Business Associate may use and disclose PHI for the proper management and administration of Business Associate or to carry out the legal responsibilities of Business Associate.
- Data Aggregation. Business Associate is permitted, for Data Aggregation purposes to the extent permitted under the HIPAA Rules, to use, disclose, and combine PHI created or received on behalf of Covered Entity by Business Associate pursuant to the Agreement with Protected Health Information, as defined by 45 C.F.R. 160.103, received by Business Associate in its capacity as a business associate of other covered entities, to permit data analyses that relate to the Health Care Operations of the respective covered entities, where “business associate” and “covered entities” have the meanings given to them in 45 C.F.R. 160.103.
- De-identified Information. Business Associate may de-identify any and all PHI created or received by Business Associate under this Agreement at any location and use all such de-identified data in accordance with the de-identification requirements of the HIPAA Rules.
- Reporting Violations of Law. Business Associate may use PHI to report violations of law to appropriate Federal and State authorities, consistent with 45 C.F.R. 164.502(j)(1).
- Limited Data Set. Business Associate may create a Limited Data Set and use such Limited Data Set pursuant to a Data Use Agreement that meets the requirements of the Privacy Rule.
E. Obligations of Covered Entity.
- Changes in Authorization. Covered Entity shall inform Business Associate, in writing and in a timely manner, of any changes in, or withdrawal of, any authorization provided to Covered Entity by any Individual pursuant to 45 CFR § 164.508, to the extent that such changes or withdrawal may affect Business Associate’s use or disclosure of PHI. In addition, Covered Entity shall notify Business Associate, in writing and in a timely manner, of any restriction to the use or disclosure of PHI that Covered Entity has agreed to in accordance with 45 CFR § 164.522, to the extent that such restriction may affect Business Associate’s use or disclosure of PHI. Covered Entity shall provide Business Associate with its notice of privacy practices for PHI as identified in 45 CFR § 164.520, and Covered Entity shall notify Business Associate, in writing and in a timely manner, of any limitation(s) in its notice of privacy practices, to the extent that such limitation may affect Business Associate’s use or disclosure of PHI. Covered Entity shall promptly notify Business Associate of any breach by Covered Entity of any obligation under the HIPAA Rules as such breach relates to PHI as defined herein. Covered Entity shall not request Business Associate to use or disclose PHI in any manner that would not be permissible under the HIPAA Rules if done by Covered Entity, and Business Associate is not required to use or disclose PHI in any manner that would not be permissible under the HIPAA Rules if done by Covered Entity.
- Minimum Necessary. Covered Entity shall disclose to Business Associate only the “Minimum Necessary” amount of PHI for Business Associate to provide the Service Offering and to perform its rights and obligations under this Agreement, and only in compliance with the HIPAA Rules.
- Termination for Breach. Either party may terminate this Agreement upon written notice to the other party if the non-breaching party determines that the other party or its subcontractors or agents has breached a material term of the BAA, provided that the non-breaching party will first provide the other party with written notice of the breach of the BAA and afford the other party the opportunity to cure the breach within forty-five (45) days of the date of such notice. If the other party or any of its subcontractors or agents fails to timely cure the breach, the non-breaching party may terminate this Agreement.
- Effect of Termination. Upon termination of this Agreement for any reason, Business Associate agrees to return or destroy all PHI received from Covered Entity, or created or received by Business Associate on behalf of Covered Entity, maintained by Business Associate in any form and to retain no copies. If Business Associate determines that the return or destruction of PHI is not feasible, Business Associate shall inform Covered Entity in writing of the reason thereof, and the Parties shall agree to extend the protections of the BAA to such PHI and Business Associate shall limit further uses and disclosures of the PHI to those purposes that make the return or destruction of the PHI not feasible for so long as Business Associate retains the PHI.
G. Interpretation. Any ambiguity in the BAA shall be resolved in favor of a meaning that permits the parties to comply with the HIPAA Rules. The provisions of the BAA shall prevail over the provisions of any other prior agreement that exists between the parties that may conflict with, or appear inconsistent with, any provision of the BAA or the HIPAA Rules, unless otherwise explicitly set forth in such agreement.
H. Regulatory References. A citation in the BAA to the Code of Federal Regulations shall mean the cited section as that section may be amended from time to time.