These Provider Master Terms of Service (these “Terms” or this “Agreement”) are entered into between Vim, Inc. and Provider (each, a “Party” and, together, the “Parties”) with the effective date hereof being the date of last signature of a Statement of Work referencing and governed by these Terms (each, an “SOW” or “Order”). In the event of any conflict or inconsistency between this Agreement and any SOW or Order: (i) with respect to the use of or access to the Hosted Services, this Agreement shall govern; and (ii) with respect to the specific engagement (including the Professional Services and Deliverables to be delivered thereunder) set forth it the applicable SOW only and not any other matter covered by this Agreement, the applicable SOW shall govern. An SOW may also be used to amend any specific terms of this Agreement upon mutual agreement among the parties to the SOW and when the terms to be amended are specifically so documented thereon. No verbal agreement or representation between persons involved in any project described in an SOW will be binding on either Vim or Provider. In consideration of the mutual covenants contained herein, the Parties agree as follows:
1. Hosted Services
Vim shall provide Provider (including all active Provider employees during the applicable SOW Term) with remote, non-exclusive, non-assignable access to the Hosted Services as described in the applicable SOW (the “Hosted Services”, collectively with the Professional Services as defined below, the “Services”). Provider agrees to use the Hosted Services solely for purposes set forth in the applicable SOW, in accordance with the terms of the applicable SOW and this Agreement, including the terms of any applicable Product-Specific Terms Addendum hereto, as modified by Vim from time to time, the terms of which are hereby incorporated by reference and made a part of this Agreement.
2. Provider’s Eligibility
A User may use the Hosted Services only if such use is supervised by one or more Provider(s) who is/are registered and in good standing with the national register of the applicable medical licensing board in the Provider’s jurisdiction. The Provider will provide notice to Vim at [email protected] within twenty-four hours if the Provider does not maintain all required authorizations and licenses to conduct Provider’s operations and practice as conducted.
3. Users, Accounts, Requirements
Provider is required to have an account for each of its authorized users (each, a “User”) that will access the Services (“Account”). Provider will identify a single administrative User in the Order that is responsible for identifying users that are eligible to access the Services on behalf of the Provider (the “Administrative User”). The Administrative User represents the Provider and is responsible for establishing the specific rights and permissions (e.g., read/write permissions) and scope of access to the Services for each User, and submitting all information on Users that is requested during the Account creation process. Provider acknowledges and agrees that the Administrative User must be an owner or employee of the Provider. The Administrative User and all Users are required to comply with this Agreement. Provider will ensure that only Users who are authorized by Provider in accordance with these Terms may access or use the Services under Provider’s Account. Provider acknowledges that Vim may reject permission for Users to access to the Services, and Vim may revoke access of any User at any time, without notice or explanation to the User or the Provider.
The Provider shall provide Vim with accurate, complete and up-to-date information for all such Users and Accounts and update such information to keep it accurate, complete and up-to-date. It is the Provider’s sole responsibility to ensure that all User contact information is accurate, complete and up to date. Violations of this Section 3 may lead to suspension or termination of Users’ Accounts. Provider and Users understand that failure to protect any and all information provided by Provider or any User to establish secure transmissions through the use of the Service, including but not limited to personal information, information used to identify account names or account numbers, routing information, usernames, passwords, access codes, and prompts (“Security Data”) may allow an unauthorized person or entity to access the Services and data available on the Services. Provider acknowledges and agrees that: (i) the Provider is solely responsible for collecting, inputting and updating, and ensuring that Users input and update, all Security Data; (ii) Vim has no responsibility for the supervision, management or control of Provider’s or Users’ Security Data; (iii) Provider is responsible for all activities that occur under Provider’s and its Users’ Accounts, whether or not Provider knows about them; and (iv) Vim assumes no responsibility for any fraudulent or unauthorized use of any portion of the Services under Provider’s Account.
Provider and its Users shall keep confidential all Security Data, not share Security Data with any third party and keep the same safe and secure, and immediately inform Vim if any Security Data for Services is compromised. Provider acknowledges, consents and agrees that Vim may access, preserve, and disclose any User’s account information to: (i) comply with any legal process; (ii) enforce this Agreement; (iii) respond to claims that any content posted by Provider or any User violates the rights of any third party; (iv) respond to Provider’s requests for assistance; and (v) protect the rights or property of Vim and its affiliates and other users of the Services; provided that, in all instances of the foregoing, Vim shall provide only the minimum amount of the User’s account information as necessary to comply with the same. Provider acknowledges that Vim generally does not have access to and cannot retrieve lost Security Data. Provider will use best efforts to meet Vim’s applicable minimum system requirements for use of the Services that Vim informs Provider of from time to time.
It is the Provider’s sole responsibility to perform all required background checks and screening processes to ensure that the Users authorized by the Provider are eligible to receive access to and data provided through the Services. Provider shall provide, at Provider’s own cost, training sessions (at least annually) to educate Users: (i) on the requirements under this Agreement to access and use the Services and the obligation to maintain confidentiality of the information displayed on the Services, (ii) on security measures that should be employed when using the Services, including password security, and (iii) on HIPAA compliance.
Provider shall immediately notify Vim at the following e-mail: [email protected] of any User: (i) who has ceased to be a part of the Provider’s workforce or the Provider or if whose access to the Services should otherwise be terminated or reduced; (ii) who has been subject to any regulatory, professional or licensing body audit, inspection, investigation, fine or any other proceedings; or (iii) of whom the Provider has a reason to suspect has breached this Agreement or abused his or her access to the Services. Provider acknowledges it shall be fully liable for any damage caused to Vim as a result of such User’s activities and the Provider’s failure to provide such notice. Additionally, Provider is required to, and will, remove permissions to access the Services for any such Users when Vim makes the User management functionality directly available to Provider. Users shall and Provider will ensure that Users shall comply with this Agreement and Provider will be liable hereunder for all acts and omissions of its Users (whether or not authorized by Provider), including but not limited to those that conflict with or breach this Agreement.
The Provider shall ensure that it has a legal license given by the EHR vendor, in order to enable the Hosted Services provided by Vim. It is the Provider’s sole responsibility to ensure that its use of the Hosted Services do not infringe any of its obligations, contractual or others, with third parties, including, but not limited to the EHR vendor used by the Provider. To the extent that the Provider has a reason to believe that using the Hosted Services may cause such an infringement, it shall promptly notify Vim of such concern, and the continuation of using the Hosted Services is up to the Provider’s sole discretion and at its sole responsibility.
4. Compliance with Laws
Both parties agree to comply with all aspects of laws and regulations governing the use and disclosure of “individually identifiable health information” Provider creates, receives, submits, or discloses, including the Health Insurance Portability and Accountability Act of 1996, as amended from time to time, together with the associated regulations adopted (“HIPAA”), and Provider represents and warrants that Provider: (a) obtained all patient consents and authorizations necessary in connection with the use of such patients’ information or materials on the Hosted Services; (b) has and will retain records sufficient to demonstrate compliance with this patient consent and authorization requirement; and (c) will immediately inform Vim by emailing all relevant contact information of the patient to [email protected] if a patient has informed Provider or any of the Provider’s workforce that he or she does not wish for his or her information to be processed using or otherwise wishes to opt- out from the Hosted Services.
Without limiting the foregoing: (i) Provider will use the Hosted Services only in accordance with applicable law and shall ensure that User shall comply with all applicable laws and regulations with respect to use of the Hosted Services and all of their activities under this Agreement; and (ii) Provider is solely responsible for receiving, and hereby represents and warrants that it will receive, prior to sharing any patient information with Vim, all consents, opt-ins, and authorizations under applicable federal and state laws for Vim to perform the Services, including without limitation, the provisions of HIPAA, the CAN-SPAM Act of 2003, 16 C.F.R. Part 310 – the Telemarketing Sales Rule, and the Telephone Consumer Protection Act codified as 47 U.S.C. 227 together with all associated regulations adopted (“TCPA”). Provider will also comply with any applicable laws and regulations of the United States and other applicable jurisdictions. Provider is solely responsible for and shall ensure the accuracy and completeness of advice provided by Provider, including such information recorded in Provider’s patient files and patient reviews. Provider is solely responsible for obtaining any and all patient consents and authorizations necessary in connection with Provider’s provision of medical care to others. Provider represents and warrants that it shall keep records of all such consents and authorizations, as well as all consents and authorizations required hereunder for Vim to provide the Hosted Services, and will make such consents and authorizations available to Vim at Vim’s request.
Provider shall maintain any and all professional indemnity insurance as required by applicable law.
5. Use Restrictions
Provider will not engage in any of the following with respect to the Hosted Services:
i. use of the Hosted Services in any way that breaches any applicable local, national or international laws
ii. use of the Hosted Services in any way that is unlawful or fraudulent, or has any unlawful or fraudulent
purpose or effect;
iii. doing anything which may impair or overburdens the Hosted Services or interferes with or disrupt the integrity or performance of the Hosted Services, or any third-party data contained therein, including without limitation by attacking the Hosted Services via a denial-of-service attack or a distributed denial of service attack;
iv. accessing without authority, interfering with, damaging or disrupting any part of the Hosted Services, any equipment or network on which the Hosted Services is stored, any software used in the provision of the Hosted Services, or any equipment or network or software owned or used by any third party in connection with the Hosted Services.
v. receiving, uploading, downloading, using or re-using any material which could be deemed to defame, abuse, harass, stalk, threaten, which contains swearing or is sexually explicit, pornographic or obscene or which is racially, ethnically, or sexually offensive or abusive, or acting fraudulently or creating any groups to communicate any of the foregoing; uploading, posting, transmitting, sharing, storing or otherwise making available any content that would constitute, encourage or provide instructions for a criminal offense or violation of law;
vi. advertising, promoting or offering to sell any goods or services, or conducting or forwarding surveys, contests or chain letters or creating groups to discuss commercial purposes;
vii. attempting to circumvent any content filtering techniques that we may employ now or in the future;
viii. including links or deep links to any website without authorization;
ix. falsifying the origin or source of any content or other material;
x. uploading, posting, transmitting, sharing, storing or otherwise making available any content which, in the sole judgement of Vim, is objectionable or restricts or inhibits any person or User from using or enjoying the Hosted Services, or which may expose the Hosted Services or User to harm or liability of any kind howsoever;
xi. misusing the Hosted Services, including without limitation by introducing or transmitting viruses, trojans, worms, time bombs, logic bombs, Trojan horses or other code, files, scripts, agents, programs or material which is malicious or technologically harmful;
xii. transmitting or sharing any content, data, or other materials on or through the Hosted Services that
(a) violate or infringe upon the rights of any third party, including but not limited to copyright, trademark, right to privacy, publicity or other personal or proprietary rights or (b) contain inflammatory, offensive, insulting or abusive, libelous, defamatory or otherwise unlawful material;
xiii. selling, reselling, renting, or leasing the Services, or allowing access to anyone who is not a User
xiv. modifying, creating any derivative work, or any adaptation of the Hosted Services;
xv. showing in public any part of the Hosted Services or use any illustrations, photographs, video, or audio sequences, or any graphics forming part of the Hosted Services separately from any accompanying text without Vim’s prior written consent.
xvi. Although Vim is not obligated to monitor access to or use of the Hosted Services or information or materials therein or to review or edit any such information or materials, Vim has the right to do so for the purpose of operating the Hosted Services, to ensure compliance with this Agreement and to comply with applicable law or other legal requirements. Vim reserves the right, but is not obligated, to remove or disable access to any information or materials, at any time and without notice, including, but not limited to any information or material considered by Vim in its sole discretion to be objectionable or in violation of this Agreement. Vim has the right to investigate violations of this Agreement or conduct that affects the Hosted Services. Vim may also consult and cooperate with law enforcement authorities to prosecute Users who violate the law.
xvii. Provider is solely responsible for Users’ interactions with the Hosted Services and preventing unauthorized access to the Services via its Accounts. If Provider has reason to believe that any User of the Services has violated this Agreement or infringed Provider’s or any other User’s or patients’ rights, please contact Vim immediately by sending an email to [email protected] Additionally, if Provider discovers any unauthorized use of the Hosted Services or any content on the Hosted Services which it considers breaches this Agreement, it will notify Vim by emailing Vim at [email protected] Vim’s response, if any, shall be at Vim’s absolute discretion. Whenever Provider makes contact with a User or patient through the Hosted Services, it must comply with the provisions regarding User conduct set out herein.
xviii. Except as expressly agreed in writing between the Parties or set forth in an applicable Product-Specific Addendum hereto to the contrary, Vim may terminate Provider’s or any User’s access to and use of the Hosted Services or any portion, aspect or feature of the Hosted Services, or delete Provider’s or any User’s profile and any materials or information that are posted on the Hosted Services for any reason, or no reason, at any time in its sole discretion, with or without notice.
Where applicable, Provider shall pay Vim the applicable fees as set forth in an applicable SOW. Unless indicated otherwise, applicable fees are stated in US dollars. Unless expressly set forth in an applicable SOW, fees are non-cancelable and non- refundable. Vim reserves the right to change the applicable fees at any time upon notice to Provider if such change may affect Provider’s continued access to the Hosted Services. In the event of failure by Vim to collect fees owed by Provider, Vim may, in its sole discretion, retry to collect at a later time, and/or suspend or terminate the Agreement, without notice. To the extent there are any applicable fees payable by Provider to any third parties in respect of Provider’s access to and receipt of the Hosted Services and/or Professional Services/Deliverables under an applicable SOW, such fees shall be the sole and exclusive responsibility of Provider.
7. Professional Services
7.1 Professional Services. Vim shall provide Provider with the professional services to implement the functionality of the Hosted Services as set out in an SOW (“Professional Services”, collectively with the Hosted Services, the “Services”). All material changes to any SOW shall be effective only if set forth in a fully executed Amended SOW or Change Order.
7.2 Deliverables. Vim shall provide to Provider the Deliverables described in the applicable SOW. No schematics or source code shall be furnished, unless specified in the SOW.
7.3 License. Except as mutually agreed between Vim and a Vim Contracted Payer, as between Vim and Provider, as between the Parties, Vim shall retain all rights, title, and interests to any copyright, patent, trademark, trade secret, or other proprietary or intangible rights, that arise from Vim’s performance of the Professional Services, including any such rights embodied in the Deliverables, except for the following license to Provider: upon full payment by Provider to Vim of all applicable fees (where applicable), Vim grants to Provider a limited, non-exclusive, non-transferable license to use the Deliverables for its internal business purposes, which license shall be perpetual and royalty-free unless otherwise stated in the applicable SOW, provided that Provider may not reproduce or use any portion of the Deliverables the right, title and interest in which is owned by Vim other than as components of the Deliverables.
8. Provider Responsibilities
8.1 Provider shall on an ongoing basis provide Vim access to and use of access to relevant functional, technical and business Provider resources and personnel with adequate skills and knowledge as reasonably required by Vim for purposes of performing its obligations hereunder, including, but not limiting to the Provider EHR system and services.
8.2 Provider shall reasonably adhere to Vim’s guidance with respect to configuration, testing, and other recommended resources as necessary for Vim to perform its obligations hereunder.
8.3 If Professional Services will be performed onsite at Provider’s premises, Provider shall provide access to Provider’s premises in a clean, lighted and safe condition with adequate power sources, networks, telephone, and data lines, and other utilities. Furthermore, Provider is responsible for obtaining any required permits, approvals, authorizations, or the like to permit Vim to perform Professional Services at its site(s).
8.4 Provider hereby grants to Vim a license to use and access the relevant technology, documentation, information, materials and data made available to Vim by Provider solely to the extent necessary to deliver the Services and Provider hereby represents and warrants that it has all consents required under applicable laws and regulations for Vim to use such technology, documentation, information, materials and data therefor.
9.1 Provider Data. Provider shall retain all right, title and interest in and to all information/data transmitted by Provider to Vim in connection with the Hosted Services or Professional Services (collectively, “Provider Data”); provided, however, that Provider hereby grants to Vim a limited, worldwide, royalty-free, fully paid-up, non-exclusive license to use the Provider Data solely for the purpose of fulfilling Vim’s obligations hereunder. Provider Data does not include non-identifiable aggregate data compiled by Vim utilized to improve user experience when accessing the Hosted Services.
9.2 Vim Intellectual Property. Except as mutually agreed between Vim and any applicable third parties including but not limited to a Vim Contracted Payer, as between the Parties, Vim shall own and retain all right, title, and interest in and to the Hosted Services and Deliverables, including all documentation, modifications, improvements, upgrades, derivative works, and all other intellectual property rights thereto and therein, including Vim’s name, logos and trademarks reproduced through them. Provider agrees not to copy, alter, modify, reverse engineer or create derivative works of the Hosted Services or Deliverables, or otherwise use the Hosted Services or Deliverables in any way that violates the terms of this Agreement.
9.3 Name Logos. Without charge to Vim, Provider grants to Vim a non-exclusive right to use Provider’s name and logo for purposes of fulfilling Vim’s obligations hereunder, as well as on Vim’s website for promotional and/or publicity purposes.
9.4 Work for Hire; Joint Development. Vim does not provide any services which result in work for hire, work product or joint development. Professional Services and Deliverables provided to Provider do not include any development rights or intellectual property rights related to the Hosted Services except for the limited right to access and use the Hosted Services as permitted hereunder.
9.5 Feedback. If Provider provides to Vim any ideas, suggestions, improvements, reviews and other information related to the Services provided by Vim (“Feedback”), Provider expressly agrees and hereby irrevocably grants to Vim, without any compensation, a world-wide, perpetual, non- exclusive, royalty-free, assignable, sublicensable, transferable rights to use such Feedback for any purpose, and Provider irrevocably waives, and cause to be waived, against Vim and its users any claims and assertions of moral rights with respect to such Feedback. Provider represents, warrants and agrees that its Feedback does not contain the confidential or proprietary information of Provider or any third party. Vim is under no obligation of confidentiality, express or implied, with respect to the Feedback.
10. Term; Termination
This Agreement shall continue until terminated in accordance with the terms hereof; provided that, the terms of this Agreement shall continue to govern any active SOW notwithstanding that no further SOWs may be entered into after termination of this Agreement. An SOW may only be terminated without cause or for convenience if expressly provided in the applicable SOW.
10.1 Termination for Convenience. Either Party may terminate this Agreement without cause or for convenience upon thirty (30) days written notice from one Party to the other Party.
10.2 For Breach. Either Party may terminate this Agreement, or any SOW, for a material breach by the other Party, which breach is not cured within thirty (30) days of written notice provided to the breaching Party, or which breach is incapable of being cured.
10.3 For Insolvency. Either Party may terminate this Agreement upon notice to the other Party if the other Party becomes insolvent, makes an assignment for the benefit of creditors, has a receiver or trustee appointed, or is the subject of a proceeding under bankruptcy or insolvency law that is not dismissed within thirty (30) days of the filing date thereof.
10.4 Effect of Termination. In the event of any expiration or termination of this Agreement or any SOW:
(i) all of Provider’s rights to access and use the Hosted Services and Vim’s obligations to provide Professional Services and deliver Deliverables hereunder shall cease, except as otherwise provided in the Agreement or the applicable SOW or agreed in writing between the Parties; (ii) Provider will remain liable for any amount due under any SOW entered into hereunder (adjusted on a pro rata basis, if provided for under the terms of any such SOW); and (iii) Vim will wind up its work in a commercially reasonable manner, return all Provider Data in its possession to Provider, and refund to Provider any monies prepaid by Provider but not applied to the SOW as of the effective date of termination. Upon termination of this Agreement, those clauses which by their nature are intended to survive shall survive.
11. Confidentiality. (i) Each Party acknowledges that each of them may have access to confidential and proprietary information related to the other Party’s business (the “Confidential Information”) including, but not limited to, information regarding products, operations, business plans, business strategies, business processes, customers, pricing, product roadmaps, procedures, and billing and collection procedures, and any other information, that, at the time of its disclosure, can reasonably be considered proprietary and/or confidential information regarding such Party’s business. Confidential Information may include information designated as confidential at the time of disclosure or which a reasonable person in same or similar circumstances would understand to be confidential. Each Party agrees to use such Confidential Information only as contemplated by this Agreement and further agrees not to disclose any Confidential Information without the prior written consent of the disclosing Party. (ii) Confidential Information will not include any information that the receiving Party can establish by convincing written evidence: was independently developed by the receiving Party without use of or reference to any Confidential Information belonging to the disclosing Party; or was acquired by the receiving Party from a third party having the legal right to furnish same to the receiving Party without disclosure restrictions; or was generally known by or available to the public through no fault of the receiving Party. A receiving Party’s obligations of confidentiality hereunder shall continue in perpetuity with respect to the disclosing Party’s Confidential Information that Recipient has previously received until the obligations no longer apply pursuant to the exclusions set forth herein. For the avoidance of doubt, the Parties agree that the provisions of this section hereby supersede any prior written or oral agreements between the Parties regarding confidentiality or nondisclosure. (iii) These confidentiality obligations will not restrict any disclosure required by order of a court or any government agency. The receiving Party will give prompt notice to the disclosing Party of any such order, if so permitted thereunder, and will reasonably cooperate with the disclosing Party at the disclosing Party’s request and expense to obtain a protective order.
12. Privacy & Security
Provider agrees that it will not: (i) disclose any information or other data on individuals or patients (including but not limited to PHI or other health information) that is accessed via the Services to any third-party other than the patient to which such data pertains; or (ii) use such information or other data for any purpose other than to provide the medical care requested by the applicable patient. Provider acknowledges that no product, hardware, software or service can provide a completely secure mechanism of electronic transmission or communication and that there are persons and entities, including enterprises, governments and quasi-governmental actors, as well as technologies, that may attempt to breach any electronic security measure. EXCEPT AS EXPRESSLY AGREED IN WRITING BETWEEN THE PARTIES OR SET FORTH IN AN APPLICABLE PRODUCT-SPECIFIC ADDENDUM HERETO TO THE CONTRARY, VIM IS NOT RESPONSIBLE FOR AND DISCLAIMS ALL LIABILITY FOR THE INTEGRITY, RETENTION (OR LOSS) OF PROVIDER DATA OR CONTENT. IF PROVIDER INCLUDES OR OTHERWISE MAKES AVAILABLE ANY DATA ON THE HOSTED SERVICES, IT SHOULD ALSO STORE A COPY IN ITS OWN SYSTEM.
13. Links to Third Party Websites or Resources
The Hosted Services may contain links to third-party websites or resources. Vim provides these links only
as a convenience and is not responsible for the content, products or services on or available from those websites or resources or links displayed on such websites. Provider and Users acknowledge sole responsibility for and assume all risk arising from, their use of any third-party websites or resources.
14. Representations; Warranties; Disclaimers.
The representations and warranties made in this Section are in addition to and do not limit any other representations and warranties made elsewhere in this Agreement. Each Party hereby represents and warrants to the other Party that: (i) it has the full right, power and authority to enter into this Agreement; and (ii) this Agreement is a valid and binding obligation of such Party. Except for the preceding warranties, and any warranties expressly made in an applicable Product-Specific Terms Addendum, VIM MAKES NO WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO ANY MATTER, AND EXPRESSLY DISCLAIMS THE WARRANTIES OR CONDITIONS OF NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE, IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE HEREUNDER. VIM DOES NOT WARRANT THE RESULTS OF USE OF THE HOSTED SERVICES, AND PROVIDER ASSUMES ALL RISK AND RESPONSIBILITY WITH RESPECT THERETO. PROVIDER HEREBY ACKNOWLEDGES AND AGREES THAT IN USING THE HOSTED SERVICES, INFORMATION PROVIDED BY PROVIDER MAY TRAVEL THROUGH THIRD PARTY INFRASTRUCTURE. EXCEPT AS EXPRESSLY AGREED IN WRITING BETWEEN THE PARTIES OR SET FORTH IN AN APPLICABLE PRODUCT-SPECIFIC ADDENDUM HERETO TO THE CONTRARY, UNLESS OTHERWISE REQUIRED BY APPLICABLE LAW, VIM MAKES NO WARRANTY WITH RESPECT TO THE SECURITY OF SUCH THIRD-PARTY INFRASTRUCTURE.
15. Limitation of Liability. UNDER NO CIRCUMSTANCES WILL EITHER PARTY TO THIS AGREEMENT BE LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES THAT RESULT FROM THIS AGREEMENT OR ANY SOW ENTERED HEREUNDER, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT AS EXPRESSLY AGREED IN WRITING BETWEEN THE PARTIES OR SET FORTH IN AN APPLICABLE PRODUCT-SPECIFIC ADDENDUM HERETO TO THE CONTRARY, IN NO EVENT WILL VIM’S LIABILITY FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR AN SOW EXCEED $100.00. IN THE EVENT THAT APPLICABLE LAW DOES NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES EACH PARTY’S LIABILITY SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY SUCH APPLICABLE LAW. THE FOREGOING LIMITATION OF LIABILITY SHALL NOT APPLY TO CLAIMS FOR GROSS NEGLIGENCE, WILLFUL OR UNLAWFUL MISCONDUCT, INDEMNITY AND/OR BREACH OF CONFIDENTIALITY HEREUNDER. TO THE FULLEST EXTENT PERMITTED BY LAW, VIM WILL NOT BE LIABLE FOR ANY MATERIAL POSTED BY PROVIDER OR ANY THIRD-PARTY INCLUDING MATERIALS POSTED BY USERS OF OTHER HEALTHCARE PROVIDERS, PATIENTS, INSURANCE COMPANIES AND OTHER HEALTHCARE PROVIDERS. VIM DOES NOT PROVIDE MEDICAL OR HEALTHCARE SERVICES OR MEDICAL ADVICE TO INDIVIDUALS. PROVIDER UNDERSTANDS THAT THE INFORMATION CONTAINED ON THE SERVICES IS NOT A SUBSTITUTE FOR THE EXERCISE OF THEIR OWN PROFESSIONAL JUDGEMENT. VIM DOES NOT CONTROL AND IS NOT RESPONSIBLE FOR MATERIALS SUBMITTED ON THE SERVICES OR ANY BREACHES OF VIM’S AGREEMENTS WITH THIRD PARTIES. VIM DISCLAIMS ALL LIABILITY FOR PROVIDER’S RELIANCE OF ANY INFORMATION AND CONTENT ON THE SERVICES OR MADE AVAILABLE THROUGH THE SERVICES AND ALL LIABILITY FOR ANY LOSS OR DAMAGE ARISING FROM THE USE THE SERVICES BY PROVIDER. IF PROVIDER OR USERS USE THE SERVICES IN ANY APPLICATION OR ENVIRONMENT WHERE FAILURE COULD CAUSE PERSONAL INJURY, LOSS OF LIFE, OR OTHER SUBSTANTIAL HARM, PROVIDER ASSUMES ANY ASSOCIATED RISKS AND SHALL INDEMNIFY VIM AND HOLD IT HARMLESS AGAINST THOSE RISKS IN ACCORDANCE WITH SECTION 16 OF THESE TERMS.
16.1 UPON WRITTEN REQUEST BY PROVIDER, VIM AGREES TO DEFEND, INDEMNIFY, AND HOLD HARMLESS PROVIDER AGAINST ANY AND ALL LIABILITIES, CLAIMS, DEMANDS, LOSSES, COSTS AND EXPENSES, INCLUDING REASONABLE ATTORNEY’S FEES AND LITIGATION EXPENSES, ARISING OUT OF A THIRD PARTY CLAIM THAT: (i) THE HOSTED SERVICES INFRINGE A THIRD PARTY UNITED STATES PATENT OR UNITED STATES COPYRIGHT; OR (II) THAT THE PROVIDER MAY SUFFER OR INCUR ARISING OUT OF OR IN CONNECTION WITH ANY AND ALL OF VIM’S ACTIONS WHICH CONSTITUTE A FAILURE TO COMPLY WITH THE TCPA IN CONJUNCTION WITH THE SERVICES PROVIDED UNDER THIS AGREEMENT OR ANY SOW. The foregoing indemnification obligations does not apply to any liabilities, claims and expenses arising out of Provider Data or a breach of warranty by Provider.
16.2 UPON A REQUEST BY VIM, PROVIDER AGREES TO DEFEND, INDEMNIFY, AND HOLD HARMLESS VIM AGAINST ANY AND ALL LIABILITIES, CLAIMS, DEMANDS, LOSSES, COSTS AND EXPENSES, INCLUDING REASONABLE ATTORNEY’S FEES AND LITIGATION EXPENSES, ARISING OUT OF OR RELATING TO: (I) ANY BREACH BY PROVIDER OR PROVIDER’S DESIGNEES OF THIS AGREEMENT OR A REPRESENTATION OR WARRANTY HEREUNDER; (II) ANY UNAUTHORIZED ACCESS OR USE OF THE HOSTED SERVICES BY PROVIDER, USERS OR OTHERWISE UNDER THE ACCOUNTS; (III) ANY MATERIALS OR INFORMATION POSTED BY PROVIDER ON THE HOSTED SERVICES OR OTHERWISE MADE AVAILABLE BY PROVIDER TO VIM; (IV) PROVIDER’S PROVISION OF MEDICAL SERVICES OF ANY KIND; OR (V) THAT VIM MAY SUFFER OR INCUR ARISING OUT OF OR IN CONNECTION WITH ANY AND ALL OF PROVIDER’S ACTIONS WHICH CONSTITUTE A FAILURE TO COMPLY WITH THE TCPA IN CONJUNCTION WITH THE SERVICES PROVIDED UNDER THIS AGREEMENT OR ANY SOW.
16.3 A Party seeking indemnification shall promptly notify the other Party of any such claim, action or proceeding upon becoming aware of it. The Party obligated to indemnify the other Party hereunder may select counsel of its choosing. However, in the event that such Party does not timely act, then the indemnified Party reserves the right at the indemnifying Party’s expense to retain counsel and commence such defense. Each Party agrees not to settle any matter involving an indemnity claim without the prior written consent of the other Party which consent shall not be commercially unreasonably withheld.
(i) This Agreement shall be governed by and construed in accordance with the laws of the State of California, without giving effect to principles of conflicts of law. (ii) Either Party may bring suit in court to enjoin any violation of this Agreement without the posting of a bond or security, in addition to whatever remedies the Party might have at law. (iii) Section headings are for convenience only and shall not affect the meaning or interpretation of this Agreement. (iv) If any provision contained in this Agreement is determined to be unenforceable, then such provision will be severed and replaced with a provision which closely follows the intent of such provision which may be enforced and the remaining provisions of this Agreement will remain in full force and effect. (v) Any modification of this Agreement shall be in writing signed by the Parties. (vi) This Agreement may not be assigned by either Party without the other Party’s prior written consent. (vii) Vim and Provider are independent contractors, and neither Vim nor Provider is an agent, representative, employer, employee, or partner of the other. (viii) Neither Party shall have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other Party, whether express or implied, or to bind the other Party in any respect whatsoever. (ix) The Agreement controls the relationship between the Parties and does not create any third-party beneficiary rights. (x) This Agreement, including any SOWs, constitutes the entire agreement between the Parties with respect to the subject matter herein. (xi) Failure to insist on strict performance of any provisions of this Agreement will not constitute a waiver of any breach or failure of performance and no waiver of any provision of the Agreement will be valid unless in writing and acknowledged in writing or electronically by both Parties. (xii) Any notices under this Agreement shall be sent to the addresses set forth above by nationally recognized express delivery service and deemed given upon receipt. (xiii) This Agreement merges all prior negotiations and drafts of the Parties with regard to the transactions contemplated herein. (xiv) Any provisions of this Agreement that by their nature are intended to survive any termination or expiration of this Agreement shall so survive. (xv) Vim will not be liable for any delay to perform under this Agreement to the extent such delay or failure results from circumstances or causes beyond the reasonable control of Vim.