Provider Master Terms of Service – Effective as of May 30, 2023
Provider Master Terms of Service – Effective as of May 30, 2023
2. Definitions.
2.1 “Application(s)” means any of the Vim applications set forth and described in Appendix I or the applicable Documentation.
2.2 “Authorized User or AU” means any individual or entity who is authorized by Covered Provider to access Vim Connect and the Services under this Agreement.
2.3 “Covered Provider” means the healthcare provider legal entity set forth on the Enrollment Form.
2.4 “Covered Provider Content” means any content and information provided or submitted by, or on behalf of, Covered Provider or Authorized Users, or content or information extracted from Covered Provider’s EHR system, for use with Vim Connect and/or the Services.
2.5 “Documentation” means the materials provided by Vim to Covered Provider, if any, in hard copy or electronic form describing the use and operation of the Vim Connect or the Online Scheduling Services.
2.6 “Data Source” means a third party that engaged Vim in a commercial agreement to surface Data Source Content for Covered Providers.
2.7 “Data Source Content” means the content provided by the Data Source to Vim for the purpose of surfacing it to Covered Providers.
2.8 “EHR” means any Electronic Health Record application or equivalent system, including but not limited to Practice Management Solutions, or any other digital tool or software, utilized by the Covered Providers for the purpose of maintaining, managing, accessing, or exchanging patient health information. This system may encompass a wide array of health-related data, including patient demographics, medical histories, medication and allergies, immunization status, laboratory test results, radiology images, vital signs, personal statistics, billing information, and other relevant health information in a digital format.
2.9 “Vim Console” means the self-service portal which enables Covered Provider’s Admin (as defined below) to manage Authorized Users and Covered Provider’s access to and use of the Applications available on Vim Connect.
2.10 “Services” means any services provided by Vim to Covered Provider under this Agreement including, but not limited to, provision of Vim Connect
2.11 “Vim Connect” or “Vim Connect Software” means the point-of-care connection platform provided by Vim that connects external data to existing Covered Providers’ EHR workflows. Vim Connect includes the Applications, the Tools (as defined below), and the Vim Console. Vim Connect may be provided via a desktop application or a browser extension.
3. Access to Vim Connect and the Services.
3.1 By signing the Enrollment Form, or by using the Vim Connect and/or the Services after any updates to the Agreement have been made, Covered Provider is granted access to Vim Connect and any applicable Services. During the term of the Agreement, Vim shall provide Covered Provider’s Authorized Users with a limited, revocable, non-exclusive, non-transferable, non-sublicensable license to use Vim Connect and the applicable Services. Vim Connect may only be used by Authorized Users approved by Covered Provider and, where applicable, only on the AU Equipment (as defined below) assigned to an applicable Authorized User. Vim Connect may only be used for Covered Provider’s internal business purposes including delivery of patient care to patients of Covered Provider and as permitted by the Agreement and the Documentation, including any applicable product specific terms herein, as modified by Vim from time to time, which are hereby incorporated by reference and made a part of this Agreement. Under no circumstances shall this Agreement be construed to grant any license to the United States Government or any governmental agency or political subdivision thereof; additional terms shall apply with respect to any such transaction. Nothing in this Agreement shall be read to grant a license of any kind whatsoever with respect to any Vim software or services that are not explicitly covered by these Terms.
3.2 Covered Provider may copy the Vim Connect Software only as absolutely necessary for back-up purposes, but only consistent with prevailing practices for backup of application software similar to the Vim Connect Software. In no event shall the Vim Connect Software, or any copy thereof, be removed from the premises and facilities under the reasonable control of Covered Provider, except for reasonable off-site storage backup copies and third-party hosting of the Vim Connect Software. Covered Provider agrees to keep an accurate accounting of all copies of the Vim Connect Software made and to provide Vim with such accounting upon request. Covered Provider agrees that Vim or its designees may have access to computer hardware and media assigned to Covered Provider’s Authorized Users (the “AU Equipment”), by direct or remote access, to verify Covered Provider’s compliance with this Agreement.
3.3 Vim Connect detects patients’ data presented on Covered Provider’s Electronic Health Records application and matches it with patient data provided to Vim by the Data Source. When Data Source Content is available for a patient whose record is being displayed by an Authorized User in Covered Provider’s EHR (“Patient Matching”) and the Data Source has elected to an Application, the Data Source Content for the Application is presented on top of Covered Provider’s EHR system. Covered Provider agrees and acknowledges that Patient Matching is not error-free and it is the responsibility of the Covered Provider’s Authorized Users to confirm that any Data Source Content presented is for the correct patient and accurate. Data Source Content is not automatically incorporated into Covered Provider’s EHR system. Authorized Users are responsible for incorporating into Covered Provider’s EHR system, either manually or using the Tools available in Vim Connect, any Data Source Content relied upon by such Authorized User in connection with the treatment of a patient.
3.4 The complete list of Applications and Data Sources applicable to Covered Provider can be found within the Vim Console. Covered Provider, specifically, Covered Provider’s Admin (as defined below) shall have the option to opt out of any or part of the Services or any Data Source at any time by following the instructions provided within the Vim Console. A description of the Applications within Vim Connect is included in Appendix I.
3.5 If Covered Provider is using United Healthcare Point of Care Assist, then, in addition to the Terms, the provisions in Appendix II apply when Covered Provider is using such Application in connection with a patient insured by United Healthcare.
3.6 Vim Connect and the Services may include the Current Procedural Terminology (“CPT”) code set, maintained by the American Medical Association (the “AMA”) through the CPT Editorial Panel, describing medical, surgical, and diagnostic services and designed to communicate uniform information about medical services and procedures among physicians, coders, patients, accreditation organizations, and Data Sources for administrative, financial, and analytical purposes. Covered Provider and Authorized Users may only use the CPT code set consistent with the terms and conditions set forth in Appendix III.
3.7 If the Services will be performed onsite at Covered Provider’s premises, Covered Provider shall provide access to Covered Provider’s premises in a clean, lighted and safe condition with adequate power sources, networks, telephone, and data lines, and other utilities. Furthermore, Covered Provider is responsible for obtaining any required permits, approvals, authorizations, or the like to permit Vim to perform the Services at its site(s).
3.8 Vim Connect and the Services are not intended to diagnose disease, prescribe treatment, or perform any other tasks that constitute or may constitute the practice of medicine or of other professional or academic disciplines. Vim Connect and the Services are not an electronic health record or data repository and do not store or maintain any data on behalf of Covered Provider. Vim Connect and the Services are information management tools only, many of which contemplate and require the involvement of professional medical personnel and professional billers and coders. Information provided is not intended to be a substitute for the advice and professional judgment of a physician or other professional medical personnel or professional biller or coder, as applicable. Users shall use their best clinical/professional judgment when acting upon the information provided through Vim Connect or the Services. Covered Provider is solely responsible for ensuring that all records of medical care maintained by Covered Provider are accurate and complete and that all billing information delivered by Covered Provider to any insurance companies, governmental agency, or other Data Sources is accurate and complete. Vim shall have no responsibility as a result of this Agreement for
3.9 decisions made or actions taken or not taken in medical record documentation in Covered Provider’s EHR system, rendering medical care or for information provided to insurance companies, governmental agencies, or other Data Sources.
4. Covered Provider Obligations.
4.1 Covered Provider shall ensure that it has a lawful and active license given by the EHR vendor, in order to utilize Vim Connect and the Services. It is Covered Provider’s sole responsibility to ensure that its use of the Vim Connect and the Services do not infringe any of its obligations, contractual or otherwise, with third parties, including, but not limited to the EHR vendor used by Covered Provider or any of Covered Provider’s obligations under any of the third party agreements relating to or pertaining to the AU Equipment (the “AU Terms”). To the extent that Covered Provider has a reason to believe that using Vim Connect and/or the Services may cause such an infringement or breach of the license with its EHR provider or the AU Terms, it shall promptly notify Vim of such concern, and the continuation of using Vim Connect and the Services is at the Covered Provider’s sole discretion and sole responsibility.
4.2 Covered Provider is solely responsible for and shall ensure the accuracy and completeness of medical care provided by Covered Provider’s Authorized Users, including the documentation of such medical care in Covered Provider’s EHR system. Covered Provider is solely responsible for obtaining any and all patient consents and authorizations necessary in connection with Covered Provider’s provision of medical care and use of Vim Connect. Covered Provider shall keep records of all such consents and authorizations, as well as all consents and authorizations required hereunder for Vim to provide Vim Connect and the Services and will make such consents and authorizations available to Vim, at Vim’s request.
4.3 Covered Provider shall on an ongoing basis provide Vim access to and use of relevant functional, technical and business resources and personnel with adequate skills and knowledge as reasonably required by Vim for purposes of performing its obligations hereunder, including, but not limited to the Covered Provider’s EHR system and services.
4.4 Covered Provider is solely responsible for timely and properly providing, obtaining, managing, implementing and maintaining any and all information technology (IT) items (services and equipment) that are required for Covered Provider and Authorized Users to access and use Vim Connect and the Services including, without limitation, hardware, software, and internet connectivity. Covered Provider shall reasonably adhere to Vim’s guidance with respect to configuration, testing, and other recommended resources as necessary for Covered Provider’s use of Vim Services. Covered Provider will use best efforts to meet Vim’s applicable minimum system requirements for use of Vim Connect and the Services that Vim informs Covered Provider of from time to time.
5. Authorized Users, Accounts, and Usage Requirements.
5.1 Covered Provider will identify one Authorized User, or more, to serve as the administrator for Covered Provider’s use of Vim Connect (the “Admin”). The Admin is responsible for identifying and enabling Covered Provider’s individual employees or contractors who should be Authorized Users; establishing the specific rights and permissions (e.g., read/write permissions) and scope of access to Vim Connect and the Services for each Authorized User; deactivating or otherwise terminating Authorized Users whose employment or engagement with Covered Provider terminates; selecting the method by which Authorized Users will authenticate their Vim Connect accounts; acting upon any suspected or unauthorized access to and use of Vim Connect; and deselecting any access to any Applications or Data Sources as determined by Covered Provider. In addition, the Admin may approve certain add-ons, new functionalities and features, updates, and approval of additional terms either via the Vim Console or other electronic means. Covered Provider represents and warrants that the Admin has all the necessary authorities and permissions to perform the tasks set forth herein and act on behalf of and as an agent of Covered Provider. Covered Provider agrees that Vim may rely upon actions taken, information provided or instructions given by the Admin to Vim.
5.2 Covered Provider is required to have an account for each of its Authorized Users who will access Vim Connect (“Account”). Covered Provider shall provide Vim with accurate, complete and up-to-date information for all such Authorized Users and Accounts and update such information to keep it accurate, complete and up to date. Covered Provider and its Authorized Users will each be provided with a username, password, access code or other unique information that enables access to Vim Connect (“Access Credentials”). Covered Provider shall ensure that it and its Authorized Users maintain the confidentiality of such Access Credentials. Covered Provider acknowledges that Vim generally does not have access to and cannot retrieve lost Access Credentials. Covered Provider is responsible for all activities that occur under Covered Provider’s and its Authorized Users’ Accounts or through the use of Covered Provider’s or its Authorized Users’ Access Credentials, whether or not Covered Provider knows about them; and Vim assumes no responsibility for any fraudulent or unauthorized use of any portion of the Vim Connect under Covered Provider’s or its Authorized Users’ Accounts or by use of their Access Credentials. Notwithstanding anything herein to the contrary, Covered Provider acknowledges that Vim may suspend or terminate an Authorized User’s access to Vim Connect or any Applications therein at any time, without notice or explanation to the Authorized User or Covered Provider.
5.3 Vim necessitates user authentication and authorization to facilitate access to Vim Connect. Vim equips the Covered Providers with the requisite tools to function as an identity management solution, administering and maintaining Authorized Users’ Access Credentials for Vim Connect. Users are obliged to individually authenticate and authorize their sessions directly with Vim. Alternatively, Covered Providers may choose to assign an external identity management solution. In this case, Vim Connect can be configured to delegate the authentication and authorization process to the Covered Provider’s chosen identity manager, which will be responsible for authentication and login procedures on Vim Connect. Covered Provider: (1) consents to install and implement the automated verification processes, as detailed in the Documentation; and (2) represents that the Admin is authorized to act on the Covered Provider’s behalf with regards to installing and implementing Vim Connect and the Tools including consenting to automated Account creation, verification or authentication processes.
5.4 Covered Provider agrees that Vim Connect may detect Covered Provider workforce members who have not created an Account with Vim Connect or Authorized Users who have not logged into Vim Connect yet installed Vim Connect on their workstation. Vim may notify the Admin of such individuals provided, however, only Covered Provider can approve new Authorized Users for Vim Connect. Vim may also suggest additional missing information for each Authorized User Account, which Covered Provider will provide in accordance with Section 5.2.
5.5 Vim may allow Covered Providers’ Admin to manage several covered provider organizations under the same Admin Account. Covered Provider hereby confirms that if Admin is acting on behalf of several Covered Providers, the Admin is authorized to act as the Admin on behalf of each Covered Provider managed in the Vim Console.
5.6 Covered Provider will ensure that only Authorized Users who are authorized by Covered Provider in accordance with this Agreement may access or use Vim Connect. Covered Provider will ensure that Admin and Authorized Users comply with this Agreement. Covered Provider will be liable hereunder for all acts and omissions of Admin and its Authorized Users including, but not limited to, any acts or omissions that conflict with or breach this Agreement.
5.7 Covered Provider acknowledges, consents, and agrees that Vim may access, preserve, and disclose any Authorized User’s Account information to: (i) comply with any legal process; (ii) enforce this Agreement; (iii) respond to claims that acts or omissions by Covered Provider or any Authorized User violate the rights of any third party; (iv) respond to Covered Provider’s requests for assistance; or (v) protect the rights or property of Vim and its affiliates and other users of Vim Connect and the Services; provided that, in all instances of the foregoing, Vim shall provide only the minimum amount of the Authorized User’s Account information as necessary to comply with the same.
5.8 It is the Covered Provider’s sole responsibility to perform all required background checks and screening processes to ensure that the Authorized Users authorized by the Covered Provider are eligible to receive access to and data provided through Vim Connect and the Services. Covered Provider shall provide, at Covered Provider’s own cost, training sessions (at least annually) to educate Authorized Users: (i) on the requirements under this Agreement related to access and use of Vim Connect and the obligation to maintain confidentiality of the information displayed through Vim Connect and/or the Services, (ii) on security measures that should be employed when using the Services, including Access Credential confidentiality, and (iii) on HIPAA compliance.
5.9 Covered Provider shall immediately notify Vim at the following e-mail: [email protected] of any Authorized User: (i) who Covered Provider failed to deactivate immediately after such Covered Provider ceased to be a part of the Covered Provider’s workforce or if whose access to Vim Connect and the Services should have otherwise been terminated or reduced by Covered Provider but were not; or (ii) of whom Covered Provider has a reason to suspect has breached this Agreement or abused his or her access to Vim Connect and/or the Services. Covered Provider acknowledges it shall be fully liable for any damage caused to Vim as a result of such Authorized User’s activities or the Covered Provider’s failure to provide such notice. Additionally, Covered Provider is required to, and will, remove permissions to access Vim Connect and the Services for any such Authorized Users.
6. Compliance with Laws.
6.1 Covered Provider shall use Vim Connect and the Services only in accordance with applicable law and shall ensure that Authorized Users shall comply with all applicable laws and regulations with respect to use of Vim Connect and the Services and all of their activities under this Agreement.
6.2 The Parties agree to comply with the Business Associate Agreement available at https://getvim.com/legal/provider-business-associate-agreement/, documenting the assurances and other requirements respecting the use and disclosure of Protected Health Information. Notwithstanding the foregoing, as the covered entity, it is Covered Provider’s responsibility to protect the privacy and security of individually identified health information transmitted through Vim Connect or the Services. It is also Covered Provider’s responsibility to ensure that it obtains all appropriate and necessary authorizations and consents to use or disclose any individually identifiable health information in compliance with all federal and state privacy laws, rules and regulations, including but not limited to the Health Insurance Portability and Accountability Act of 1996, as amended from time to time, together with the associated regulations adopted (“HIPAA”). Covered Provider represents and warrants that Covered Provider: (a) obtained all patient consents and authorizations necessary in connection with the use of such patients’ information or materials in connection with Vim Connect and as otherwise contemplated by the Agreement; (b) has and will retain records sufficient to demonstrate compliance with this patient consent and authorization requirement; and (c) will notify the patient that the patient must contact the patient’s insurer if the patient informs Covered Provider or any of the Covered Provider’s workforce that patient does not wish for patient’s information to be processed using or otherwise wishes to opt-out from Vim Connect.
6.3 Covered Provider shall maintain professional liability insurance coverage for Covered Provider and each licensed Authorized User with limits of at least $1,000,000 per occurrence and $3,000,000 in the aggregate.
7. Ownership.
7.1 Covered Provider understands and agrees that Vim Connect, the Services and all tools, software (in source code or object code), bots, robotic process automation, algorithms, calculators, spreadsheets, architecture, modules, components, designs, utilities, objects, program listings, models, templates, methodologies, frameworks, routines, interfaces, instructions, configurations, and items of a similar nature, owned, licensed, or developed by Vim (directly and/or through its affiliates, consultants, and/or subcontractors), whether in connection with or independently of Vim’s provision of Vim Connect and/or the Services to Covered Provider, and modifications, enhancements, and/or derivative works to all of the above, whether pre-existing or developed during Vim’s provision of Vim Connect and/or the Services to Covered Provider, including, without limitation, any modifications based on Covered Provider’s feedback or based on Vim Connect or the Services provided to Covered Provider, and any copies or Documentation relating to the foregoing (collectively, the “Tools”), are and shall at all times remain the property of Vim or its licensors, and Covered Provider shall have no rights or interests therein.
7.2 Covered Provider agrees and acknowledges that (i) Vim Connect includes the Tools and the use of robotic process automation, which may analyze, copy, extract and/or create Covered Provider Content from or in Covered Provider’s EHR application and other computer software (Covered Provider’s EHR application and other computer software shall jointly be referred to as “Covered Provider’s System”); (ii) if and to the extent Covered Provider elects to use the Tools to create, update or input Data Source Content into Covered Provider’s System, Covered Provider will provide needed access to such Covered Provider’s System for computer automation to perform these tasks; and (iii) Covered Provider is responsible for obtaining and maintaining all rights (including with respect to any third parties) to Covered Provider’s Systems and Covered Provider Content necessary for Covered Provider to use the Tools and for Vim to otherwise perform Services as described in the Agreement.
7.3 As between Vim and Covered Provider, Covered Provider shall retain all rights, titles,s and interest in and to Covered Provider Content; provided, however, that Covered Provider hereby grants to Vim a limited, worldwide, royalty-free, fully paid-up, non-exclusive license to access, view, use and disclose the Covered Provider Content as necessary in connection with Vim Connect and to provide the Services; to respond to Covered Provider’s specific support requests or inquiries; to transmit Covered Provider Content back to Data Sources when indicated by an Authorized User or in connection with Application functionality as described in Appendix I; for the business operations of Vim related to the provision of Vim Connect and Services, including improvement of Vim Connect and the Services; to verify compliance with this Agreement; as may be required by applicable law, court order, or governmental authority; and as otherwise permitted by the Agreement. Covered Provider agrees that Vim may use or extract Covered Provider Content manually or through automated mechanisms to create data sets that have been de-identified in accordance with HIPAA such that it is no longer considered PHI or Covered Provider Content (“De-Identified Data Set”). Vim shall own all such De-Identified Data Sets and all products, solutions, and services that it creates using the De-Identified Data Sets, as well as all of the intellectual property rights embodied in and related to the De-Identified Data Sets and such products, solutions, and services, provided that Vim does not re-identify any De-Identified Data Sets.
7.4 Without charge to Vim, Covered Provider grants to Vim a non-exclusive right to use Covered Provider’s name and logo for purposes of fulfilling Vim’s obligations hereunder, notifying Data Sources and any Covered Provider customers’ usage of Vim and on Vim’s website for promotional and/or publicity purposes.
7.5 Vim does not provide any services which result in work for hire, work product or joint development. The Services provided to Covered Provider do not include any development rights or intellectual property rights related to the Vim Connect or the Services except for the limited right to access and use Vim Connect and the Services as permitted hereunder.
8. Use Restrictions. Covered Provider will not, and will ensure that its Authorized Users do not, engage in any of the following with respect to Vim Connect and the Services:
8.1 use of Vim Connect or the Services or the Tools in any way that violates any applicable local, national or international laws or regulations;
8.2 use of Vim Connect or the Services or the Tools in any way that breaches Covered Provider’s agreements with third parties that are required or necessary for use in connection with Vim Connect or the Services or the Tools;
8.3 use of Vim Connect or the Services or the Tools in any way that is unlawful or fraudulent, or has any unlawful or fraudulent purpose or effect;
8.4 doing anything, purposefully, which may impair or overburdens Vim Connect or the Services or the Tools or interferes with or disrupt the integrity or performance of the Vim Connect or the Services or the Tools, or any third-party data contained therein, including without limitation by attacking the Vim Connect or the Services via a denial-of-service attack or a distributed denial of service attack;
8.5 accessing without authority, interfering with, damaging or disrupting any part of Vim Connect or the Services or the Tools, any equipment or network on which Vim Connect or the Services or the Tools are stored, any software used in the provision of Vim Connect or the Services or the Tools, or any equipment or network or software owned or used by any third party in connection with Vim Connect or the Services;
8.6 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;
8.7 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;
8.8 attempting to circumvent any content filtering techniques that we may employ now or in the future;
8.9 including links or deep links to any website without authorization;
8.10 falsifying the origin or source of any content or other material;
8.11 uploading, posting, transmitting, sharing, storing or otherwise making available any content which, in the sole judgment of Vim, is objectionable or restricts or inhibits any person or Authorized User from using or enjoying the Vim Connect or the Services or the Tools, or which may expose Vim Connect or the Services or the Tools or Authorized User to harm or liability of any kind howsoever;
8.12 misusing Vim Connect or the Services or the Tools, including without limitation by introducing or transmitting viruses, worms, time bombs, logic bombs, Trojan horses or other code, files, scripts, agents, programs or material which is malicious or technologically harmful;
8.13 transmitting or sharing any content, data, or other materials on or through Vim Connect or the Services or the Tools that 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 contain inflammatory, offensive, insulting or abusive, libelous, defamatory or otherwise unlawful material;
8.14 selling, reselling, renting, or leasing the Vim Connect or the Services or the Tools, or allowing access to anyone who is not an Authorized User hereunder;
8.15 modifying, altering, reverse engineering, decompiling, reverse compiling or disassemble Vim Connect, the Tools or the Services;
8.16 creating any derivative work or any adaptation of Vim Connect, the Tools or the Services;
8.17 showing in public any part of Vim Connect, the Tools or the Services or use any illustrations, photographs, video, or audio sequences, or any graphics forming part of the Vim Connect, the Tools or the Services separately from any accompanying text without Vim’s prior written consent. Although Vim is not obligated to monitor information or materials available through Vim Connect or the Services or to review or edit any such information or materials, Vim has the right to do so for the purpose of operating Vim Connect and the 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 Vim Connect or the Services. Vim may also consult and cooperate with law enforcement authorities to prosecute Authorized Users who violate the law.Except as expressly agreed in writing between the Parties or set forth in an applicable Enrollment Form hereto to the contrary, Vim may terminate Covered Provider’s or any Authorized User’s access to and use of the Applications or any portion, aspect, or feature of the Applications, or delete Covered Provider’s or any Authorized User’s profile for any reason, or no reason, at any time in its sole discretion, with or without notice.
9. Payments. Where applicable, Covered Provider shall pay Vim the fees as set forth in an applicable Enrollment Form (the “Applicable Fees”). Unless indicated otherwise, the Applicable Fees are stated and shall be paid in US dollars. Unless expressly set forth in an applicable Enrollment Form, the Applicable Fees are non-cancelable and non-refundable. Vim reserves the right to change the Applicable Fees at any time upon notice to Covered Provider. Notwithstanding the foregoing, in the event Covered Provider has not been paying for access to Vim Connect and/or the Services, and Vim wishes to charge Covered Provider Applicable Fees in connection therewith, the Parties must agree to such initial Applicable Fees in writing. Vim shall have the right to collect the Applicable Fees owed by Covered Provider at any time. If Covered Provider has failed to pay the Applicable Fees, Vim may suspend or terminate the Agreement and Covered Provider’s and its Authorized Users’ access to Vim Connect, without notice. To the extent there are any applicable fees payable by Covered Provider to any third parties in respect of Covered Provider’s access to and receipt of Vim Connect and the applicable Services under an applicable Enrollment Form, such fees shall be the sole and exclusive responsibility of Covered Provider.
10. Term; Termination.
10.1 his Agreement shall continue until terminated in accordance with the terms hereof; provided that, the terms of this Agreement shall continue to govern any active Enrollment Form notwithstanding that no further Enrollment Form may be entered into after termination of this Agreement. An Enrollment Form may only be terminated without cause or for convenience if expressly provided in the applicable Enrollment Form.
10.2 Either Party may terminate this Agreement, or any Enrollment Form, for a material breach by the other Party, which breach is not cured within thirty (30) days of the written notice provided to the breaching Party, or which breach is incapable of being cured.
10.3 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 In the event of any expiration or termination of this Agreement or any Enrollment Form, (i) all of Covered Provider’s rights to access and use of Vim Connect and the Services and Vim’s obligations to provide Vim Connect and the Services hereunder shall cease, except as otherwise provided in the Agreement or agreed in writing between the Parties; (ii) Covered Provider will remain liable for any amount due under any Enrollment Form entered into hereunder (adjusted on a pro-rata basis, if provided for under the terms of any such Enrollment Form); (iii) Vim will wind up its work in a commercially reasonable manner; and (iv) uninstall and destroy any copies of the Vim Connect Software in the possession of Covered Provider or its Authorized Users.. Upon termination of this Agreement, those clauses which by their nature are intended to survive shall survive.
11. Confidentiality.
11.1 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 the same or similar circumstances would understand to be confidential.
11.2 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.
11.3 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.
11.4 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. In addition to the foregoing, the Parties shall also comply with the terms of the BAA.
12. Representations; Warranties; Disclaimers.
12.1 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.
12.2 Each Party acknowledges that the liability limitations and warranty disclaimers in the Agreement are independent of any remedies hereunder and shall apply regardless of whether any remedy fails of its essential purpose. Covered Provider acknowledges that the limitations of liability set forth in this Agreement are integral to the amount of consideration offered and charged in connection with Vim Connect and the Services provided by Vim and that, were Vim to assume any further liability other than as provided in the Agreement, such consideration would of necessity be set substantially higher.
12.3 Except for the preceding warranties, and any warranties expressly made in an applicable product-specific terms hereto, VIM CONNECT AND THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT ANY WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, AND VIM 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 VIM CONNECT OR THE SERVICES, AND COVERED PROVIDER ASSUMES ALL RISK AND RESPONSIBILITY WITH RESPECT THERETO.
12.4 COVERED PROVIDER ACKNOWLEDGES AND AGREES THAT (I) THE INFORMATION AVAILABLE THROUGH VIM CONNECT AND THE SERVICES IS DRAWN FROM NUMEROUS SOURCES, (II) VIM HAS NOT AND WILL NOT CONFIRM THE ACCURACY OF ANY DATA SOURCE CONTENT OR OTHER INFORMATION AVAILABLE THROUGH VIM CONNECT OR THE SERVICES, (III) THE INFORMATION PROVIDED THROUGH VIM CONNECT OR THE SERVICES MAY NOT INCLUDE THE INDIVIDUAL’S FULL AND COMPLETE MEDICAL RECORD OR HISTORY; AND (IV) VIM CONNECT OR THE SERVICES REVEALS THE SOURCE OF THE INFORMATION SO THAT COVERED PROVIDER AND AUTHORIZED USERS WILL BE ABLE TO MAKE APPROPRIATE DECISIONS ABOUT THEIR USE. COVERED PROVIDER AGREES THAT VIM MERELY PROVIDES THE INFRASTRUCTURE FOR DATA SOURCE CONTENT TO BE SHARED WITH COVERED PROVIDER AND COVERED PROVIDER TO SHARE COVERED PROVIDER CONTENT WITH DATA SOURCES AND THEREFORE VIM SHALL NOT BE HELD RESPONSIBLE BY COVERED PROVIDER FOR ANY DATA QUALITY ISSUES, INCLUDING NEGLIGENCE, DETRIMENTAL RELIANCE OR ANY OTHER THEORY.
12.5 VIM DISCLAIMS ANY RESPONSIBILITY FOR INACCURATE INFORMATION SUBMITTED TO A COVERED PROVIDER’S EHR APPLICATION THROUGH VIM CONNECT’S ROBOTIC PROCESS AUTOMATION. COVERED PROVIDER SHALL BE SOLELY RESPONSIBLE TO ENSURE THE ACCURACY AND CORRECTNESS OF ANY INFORMATION SUBMITTED THROUGH VIM CONNECT TO THE EHR APPLICATION. VIM SHALL NOT BE HELD RESPONSIBLE BY COVERED PROVIDER FOR ANY DAMAGES THAT ARISE FROM INACCURATE OR WRONG INFORMATION SUBMITTED TO COVERED PROVIDER’S EHR APPLICATION BY VIM CONNECT.
12.6 COVERED PROVIDERS ACKNOWLEDGE AND AGREE THAT SYSTEM BUGS ARE INEVITABLE AND THE PROCESS OF MATCHING THE COVERED PROVIDER CONTENT WITH THE DATA SOURCE CONTENT MAY MALFUNCTION FROM TIME TO TIME (HEREINAFTER: “DATA MISMATCH”) THEREFORE, COVERED PROVIDER SHALL BE SOLELY RESPONSIBLE TO ENSURE AND VERIFY THAT THE INFORMATION PRESENTED ON THE COVERED PROVIDER’S EHR APPLICATION CORRECTLY MATCHES WITH THE DATA SOURCE CONTENT PRESENTED ON VIM CONNECT. VIM SHALL NOT BE HELD RESPONSIBLE BY COVERED PROVIDER FOR ANY DAMAGES THAT ARISE FROM INSTANCES OF DATA MISMATCH.
12.7 DATA SOURCE CONTENT MAY INCLUDE A LIST OF PROVIDERS RECOMMENDED FOR REFERRALS (HEREINAFTER: “RECOMMENDED PROVIDERS”). VIM HAS NO CONTROL OR DISCRETION OVER THE LIST OF RECOMMENDED PROVIDERS AND THEREFORE VIM SHALL NOT BE HELD RESPONSIBLE BY COVERED PROVIDERS FOR ANY DAMAGES THAT ARISE FROM REFERRALS MADE BY COVERED PROVIDERS THROUGH VIM CONNECT.
12.8 COVERED PROVIDER ACKNOWLEDGES THAT VIM: (A) HAS NO CONTROL OF OR RESPONSIBILITY FOR THE COVERED PROVIDER’S USE OF VIM CONNECT OR THE SERVICES, AND (B) HAS NO KNOWLEDGE OF THE SPECIFIC OR UNIQUE CIRCUMSTANCES UNDER WHICH THE INFORMATION FROM VIM CONNECT OR THE SERVICES PROVIDED MAY BE USED BY COVERED PROVIDER. COVERED PROVIDER ACKNOWLEDGES AND AGREES THAT ANY INFORMATION FURNISHED BY VIM CONNECT OR THE SERVICES HEREUNDER (WHETHER SEPARATELY OR INCLUDED WITHIN AN APPLICATION) SHOULD NOT AND DO NOT REPLACE OR ALTER ANY PROCESS IN COVERED PROVIDERS’ EXISTING WORKFLOWS AND THAT ITS USE CONTEMPLATES AND REQUIRES THE INVOLVEMENT OF TRAINED INDIVIDUALS. AUTHORIZED USERS SHOULD ALWAYS USE DISCRETION AND PROFESSIONAL JUDGMENT IN ACCORDANCE WITH APPLICABLE LAWS, RULES, ORDINANCES AND REGULATIONS WHEN USING VIM CONNECT AND THE SERVICES.
12.9 COVERED PROVIDER FURTHER ACKNOWLEDGES AND AGREES THAT VIM CONNECT AND THE SERVICES DO NOT HAVE THE ABILITY TO DIAGNOSE DISEASE, PRESCRIBE TREATMENT, OR PERFORM ANY OTHER TASKS THAT CONSTITUTE THE PRACTICE OF MEDICINE. COVERED PROVIDER ACKNOWLEDGES THAT THE PROFESSIONAL DUTY TO THE PATIENT IN PROVIDING HEALTHCARE SERVICES LIES SOLELY WITH THE HEALTHCARE PROFESSIONAL PROVIDING THE SERVICES. VIM SHALL NOT BE RESPONSIBLE OR LIABLE FOR ANY CLINICAL CARE PROVIDED OR NOT PROVIDED BY COVERED ENTITY OR ITS AUTHORIZED USERS.
12.10 COVERED PROVIDER FURTHER ACKNOWLEDGES AND AGREES THAT ANY INFORMATION REGARDING MEDICAL CODING THAT MAY BE PRESENTED IN VIM CONNECT OR THE SERVICES IS FOR INFORMATIONAL PURPOSES ONLY AND DOES NOT CONSTITUTE MEDICAL ADVICE, DOES NOT DICTATE DATA SOURCE REIMBURSEMENT POLICY, AND DOES NOT SUBSTITUTE FOR THE PROFESSIONAL JUDGEMENT OF A CERTIFIED CODER OR THE AUTHORIZED USER PERFORMING A PROCEDURE, WHO REMAINS RESPONSIBLE FOR CORRECT CODING AND ALL SUPPORTING DOCUMENTATION. INFORMATION OBTAINED FROM VIM CONNECT AND THE SERVICES DOES NOT REPLACE THE COVERED PROVIDER’S CURRENT PROCEDURAL TERMINOLOGY AND OTHER APPROPRIATE CODING AUTHORITY. VIM SHALL NOT BE RESPONSIBLE OR LIABLE FOR ANY CODING SUBMITTED BY COVERED PROVIDER TO A DATA SOURCE IN CONNECTION WITH REIMBURSEMENT.
12.11 COVERED PROVIDER UNDERSTANDS AND ACKNOWLEDGES THAT PRIOR AUTHORIZATION IS NOT A GUARANTEE OF PAYMENT. ONLY THE APPLICABLE DATA SOURCE CAN DETERMINE PAYMENT BASED ON THE SUBMISSION OF A CLAIM BY PROVIDER TO SUCH DATA SOURCE. VIM HAS NO RESPONSIBILITY OR LIABILITY REGARDING SUCH DATA SOURCE’S PAYMENT PROCESSES OR DECISIONS.
12. 12 EXCEPT AS EXPRESSLY AGREED IN WRITING BETWEEN THE PARTIES, VIM IS NOT RESPONSIBLE FOR AND DISCLAIMS ALL LIABILITY FOR THE INTEGRITY, RETENTION (OR LOSS) OF COVERED PROVIDER CONTENT OR DATA SOURCE CONTENT. IF COVERED PROVIDER RELIES ON ANY DATA SOURCE CONTENT OR INCLUDES OR OTHERWISE MAKES AVAILABLE ANY DATA IN VIM CONNECT OR THE SERVICES, IT MUST ALSO STORE A COPY IN ITS OWN EHR SYSTEM.
12.13 CERTAIN PRODUCTS AND SERVICES PROVIDED BY VIM UTILIZE THE INTERNET. VIM DOES NOT WARRANT THAT SUCH SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. VIM DOES NOT AND CANNOT CONTROL THE FLOW OF DATA TO OR FROM VIM OR COVERED PROVIDER’S SYSTEMS AND OTHER PORTIONS OF THE INTERNET. SUCH FLOW DEPENDS IN LARGE PART ON THE INTERNET SERVICES PROVIDED OR CONTROLLED BY THIRD PARTIES. ACTIONS OR INACTIONS OF SUCH THIRD PARTIES CAN IMPAIR OR DISRUPT CUSTOMER’S CONNECTIONS TO THE INTERNET (OR PORTIONS THEREOF). ACCORDINGLY, VIM DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO SUCH EVENTS.
12.14 VIM CONNECT MAY CONTAIN LINKS TO THIRD-PARTY WEBSITES OR RESOURCES INCLUDING REFERRED PROVIDERS WHO MAY BE AVAILABLE TO PROVIDE SERVICES IN CONNECTION WITH A REFERRAL. VIM PROVIDES THESE LINKS AND RESOURCES ONLY AS A CONVENIENCE AND IS NOT RESPONSIBLE FOR THE CONTENT, PRODUCTS OR SERVICES ON OR AVAILABLE FROM THOSE WEBSITES, RESOURCES OR LINKS DISPLAYED ON SUCH WEBSITES, OR SERVICES PROVIDED BY ANY REFERRED PROVIDERS. COVERED PROVIDER AND AUTHORIZED USERS ACKNOWLEDGE SOLE RESPONSIBILITY FOR AND ASSUME ALL RISK ARISING FROM, THEIR USE OF ANY THIRD-PARTY WEBSITES OR RESOURCES INCLUDING REFERRED PROVIDERS.
12.15 ANY ACTION RELATING TO THIS AGREEMENT, OTHER THAN COLLECTION OF OUTSTANDING PAYMENTS, MUST BE COMMENCED WITHIN ONE YEAR AFTER THE DATE UPON WHICH THE CAUSE OF ACTION ACCRUED OTHERWISE SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED. COVERED PROVIDER AGREES THAT ANY CLAIM COVERED PROVIDER MAY HAVE AGAINST VIM, INCLUDING VIM’S PAST OR PRESENT EMPLOYEES OR AGENTS, SHALL BE BROUGHT INDIVIDUALLY AND COVERED PROVIDER SHALL NOT JOIN SUCH CLAIM WITH CLAIMS OF ANY OTHER PERSON OR ENTITY OR BRING, JOIN OR PARTICIPATE IN A CLASS ACTION AGAINST VIM.
13. Limitation of Liability.
13.1 EXCEPT GROSS NEGLIGENCE, WILLFUL OR UNLAWFUL MISCONDUCT OR IN CONNECTION WITH A PARTY’S INDEMNIFICATION OBLIGATIONS, 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, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 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.
13.2 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 EXCEED $100.00 WHETHER A CLAIM FOR ANY SUCH CAUSES OF ACTION, LIABILITY, LOSSES OR DAMAGES IS PREMISED UPON BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER THEORIES OF LIABILITY, EVEN IF VIM HAS BEEN APPRISED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES OCCURRING.
14. Indemnity.
14.1 Vim will defend, indemnify, and hold Covered Provider harmless from and against third party claims, liabilities, obligations, judgments, causes of action, costs and expenses (including reasonable attorneys’ fees) to the extent arising out of a claim filed in a court of competent jurisdiction alleging that Vim Connect, the Services (except for Data Sources, Data Source Content, Covered Provider Content and other information or data provided by third parties (the “Third-Party Content”)), OR Documentation infringe a third party’s patent or copyrights (“Infringement Action”). Vim’s indemnification obligation will not apply to the extent that the Infringement Action is based upon: (i) the use of any item of Vim Connect, the Documentation or Services in combination with any product, service or activity (or any part thereof) not furnished, performed, recommended in writing, or approved in writing by Vim; (ii) the use of the Vim Connect, the Documentation or Services in violation of this Agreement; (iii) the use of Vim Connect or any part of the Services not updated to the latest version offered by Vim (unless Vim allows using an older version of Vim Connect), where the latest version incorporates modifications that, in Vim’s opinion, avoid the infringement claim; or (iv) third party content supplied or transmitted by a Data Source, Covered Provider or an Authorized User. If there is an Infringement Action relating to Covered Provider’s use of Vim Connect, the Documentation or Services, or if, in Vim’s opinion, any Application or element of Vim Connect, the Documentation or Services are likely to become the subject of an Infringement Action, Vim may, at its discretion, (i) procure the right for Covered Provider to use Vim Connect, the Documentation or Services that are the subject of the Infringement Action, (ii) replace or modify Vim Connect, the Documentation or Services so that they become non-infringing, or (iii) terminate the Agreement. The indemnification provided for in this paragraph shall constitute the entire liability of Vim and all providers of Third-Party Content with respect to an Infringement Action. The foregoing indemnification obligations do not apply to any liabilities, claims or expenses arising out of Covered Provider Content or a breach of warranty by Covered Provider.
14.2 COVERED PROVIDER AGREES TO DEFEND, INDEMNIFY, AND HOLD HARMLESS VIM AND VIM’S AFFILIATES, LICENSORS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS AND CONTRACTORS 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 AUTHORIZED USERS OF THIS AGREEMENT, ANY AGREEMENT BETWEEN PROVIDER OR PROVIDER’S USERS AND A THIRD-PARTY FOR ANY APPLICATION OR SERVICE NEEDED IN ORDER TO ACCESS OR USE THE APPLICATIONS (E.G., THE AGREEMENT BETWEEN PROVIDER AND ITS EHR PROVIDER FOR EHR LICENSURE) OR A REPRESENTATION OR WARRANTY HEREUNDER; (II) ANY UNAUTHORIZED ACCESS OR USE OF VIM CONNECT OR THE SERVICES BY PROVIDER, USERS OR OTHERWISE UNDER THE ACCOUNTS; (III) ANY COVERED PROVIDER CONTENT, MATERIALS OR INFORMATION SHARED, UTILIZED OR PROVIDED BY COVERED PROVIDER ON VIM CONNECT OR IN CONNECTION WITH THE SERVICES OR OTHERWISE MADE AVAILABLE BY COVERED PROVIDER TO VIM; (IV) COVERED PROVIDER OR AN AUTHORIZED USER’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 COVERED PROVIDER’S OR ITS AUTHORIZED USER(S)’ ACTIONS IN CONJUNCTION WITH VIM CONNECT AND THE SERVICES PROVIDED UNDER THIS AGREEMENT.
14.3 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.
15. Miscellaneous
15.1 This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to principles of conflicts of law.
15.1.1 The Parties to this Agreement will submit any and all disputes arising under or otherwise concerning this Agreement exclusively to arbitration administered by the American Arbitration Association (“AAA”), and not to any other venue or forum including without limitation a court of law. The Parties agree that no type of dispute and no legal or fact issues, including without limitation any and all issues related to fraudulent inducement, are excluded from the scope of the foregoing arbitration requirement. The Parties agree that any such arbitration shall take place exclusively in Manhattan in New York City, New York before a single AAA arbitrator, who shall be selected pursuant to the AAA rules or by mutual agreement of the Parties; provided, however, that in any event the arbitrator must be an attorney who is admitted to practice law in the State of New York. The Parties agree that the arbitrator’s authority will include, without limitation, the authority to grant interim and permanent injunctive relief. The Parties agree that the arbitrator will be bound by the limitation of liability provisions set forth in Section 13 of this Agreement (or, if Covered Provider is using United Healthcare Point of Care Assist, then by the limitation of liability provisions set forth in Appendix II hereto). The Parties agree that the arbitration and oral and written communications precedent or ancillary thereto, along with the information therein (including without limitation, the allegations made by the parties thereto, evidence, discovery, technical reports, expert reports, interim dispute resolution measures taken with respect thereto, and any and all other statements given or information provided by third parties, along with any documentation submitted or exchanged in the course of the arbitration proceedings or related dispute resolution) (together “Confidential Arbitration Information”), shall be kept strictly confidential. The Parties may only disclose Confidential Arbitration Information to the AAA, the arbitrator, the parties to the arbitration, their respective attorneys, and any person working under the direction of the arbitration parties’ respective counsel and who is essential to the prosecution or defense of the arbitration proceedings, provided, however, that such person first agrees in writing to be bound by the confidentiality requirements. Anything herein to the contrary notwithstanding, a Party may disclose Confidential Information: (i) in compliance with a lawful order or process of a court of competent jurisdiction or governmental agency (provided, however, that the Party provides immediate, advanced notice the other Party so that it can seek relief from such order or process, at its sole discretion); (ii) to its attorneys, accountants, or advisors who have a need to know and are informed of and agree not to further disseminate such information or materials; or (iii) with the other Party’s written consent.
15.2 Section headings are for convenience only and shall not affect the meaning or interpretation of this Agreement.
15.3 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.
15.4 Except as otherwise provided herein, Vim reserves the right to update these Terms of Service at any time by providing Covered Provider with notice of the changes in accordance with Section 15.12. The updated Terms will become effective five (5) business days following Vim’s provision of such notice. By Covered Provider or any Authorized User continuing to use the Application after Covered Provider is notified of any changes to these Terms, Covered Provider acknowledges and agrees to be bound by the updated Terms. If Covered Provider does not agree to the updated Terms, Covered Provider and its Authorized Users must discontinue use of Vim Connect and the Services immediately.
15.5 This Agreement may not be assigned by Covered Provider without Vim’s prior written consent.
15.6 Vim and Covered Provider are independent contractors, and neither Vim nor Covered Provider is an agent, representative, employer, employee, or partner of the other.
15.7 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.
15.8 The Agreement controls the relationship between the Parties and does not create any third-party beneficiary rights except with respect to the AMA. The AMA shall be a third party beneficiary to this Agreement made hereunder between Vim and Covered Provider and shall have the right to enforce this Agreement directly to the extent they may deem such enforcement necessary or advisable to protect its rights or the rights of the AMA hereunder.
15.9 These Terms, together with the BAA, Privacy Policy and Enrollment Form(s) incorporated herein by reference, constitute the entire agreement between the Parties with respect to the subject matter herein. In the event of any conflict or inconsistency between these Terms, the BAA, the Privacy Policy, and the Enrollment Form: (i) the Terms shall govern with respect to the use of or access to Vim Connect; and (ii) for any other conflicts, the BAA shall govern, followed by the Privacy Policy. An Enrollment Form may be used to amend any specific provisions of these Terms upon mutual written agreement between the Parties to the Enrollment Form and when the provisions to be amended are specifically so documented thereon. No verbal agreement, representation, or amendment will be binding on either Vim or Covered Provider.
15.10 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 the waiving Party.
15.11 Any notice to be given pursuant to the Agreement must be in writing sent by electronic transmission to Covered Provider at the electronic mail address included in the Enrollment Form or to Vim at [email protected]. Any notice given by electronic mail shall be deemed given when sent to the correct electronic mail address if sent before 5:00 pm EST on a business day or, if sent after 5:00 EST, the next business day.
15.12 Any provisions of this Agreement that by their nature are intended to survive any termination or expiration of the Agreement shall so survive. This includes, without limitation, Section 15.2.
15.13 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.
15.14 Each Party agrees that any and all documentation to be delivered in connection with this Agreement, including, without limitation, the Enrollment Form, Privacy Policy and/or BAA, may be electronically signed and that any such electronic signatures are the same as handwritten signatures for the purposes of validity, enforceability, and admissibility. Any and all documentation to be delivered in connection with this Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
Appendix I
Vim Connect Applications
This Appendix contains a description of the Vim Connect Applications. Vim may modify, change, upgrade, downgrade, discontinue or replace any Application at any time. Applications will only be available to Covered Provider and its Authorized Users if (i) the patient’s third-party payer is a Data Source that has enabled such Application; and (ii) Covered Provider has not elected to discontinue use of the Application or Data Source. This Appendix may be updated without notice to Covered Provider; therefore, Covered Provider is encouraged to check it frequently.
1. Potential Conditions Application (f/k/a Diagnosis Gaps). The Potential Conditions Application allows Covered Provider to view data from the Data Source pertaining to suspected chronic conditions. Covered Provider may, under their sole discretion, respond to the information presented in the Potential Conditions Application, and Vim will then share these responses back to the Data Source. In supported EHR applications, the Potential Conditions Application may allow Covered Provider to use the Tools to add the chronic conditions codes to the EHR application.
2. Order Assist (f/k/a Referral Guidance or Referral Navigations). The Order Assist Application may allow Covered Providers to access certain lists of Referred Providers (the “Order Assist Application”) which Data Sources recommended for referrals (“Referred Providers”). In addition, Covered Providers may request Vim to present its own physicians at the top of the search results list in the Order Assist Application. On supported EHRs Covered Providers may use the Order Assit Application to write Data Source recommended referrals back into the EHR application. The Data Source provides Vim with the Covered Providers search results logic. Vim is unaware of, nor responsible for, the factors and considerations under which these search results are generated.
3. Eligibility Application. The Eligibility Application may present Covered Provider with patients’ insurance eligibility information, the name of their insurance company and other information which may be relevant for the patient and Covered Provider (the “Eligibility Application”). This data is provided by a Data Source. Vim has no discretion or influence over patients’ insurance information, including eligibility for treatment.
4. Quality Gaps Application. Vim may present Covered Provider with Patients’ Quality Gap data (the “Quality Gaps Application”) provided to Vim by a Data Sources.
5. Patient Health History Application. Vim may present Covered Provider with patients’ health history data (the “Patient Health History Application”). Health history data is provided to Vim by Data Sources. For the purpose of these Terms, the term “Health History” shall mean a record, or a portion thereof, of the patient’s health, including, without limitation to, past visits with medical providers, past illnesses, chronic illnesses, allergies, prescribed medications, surgeries, injuries, mental health condition, blood tests results, administered vaccines and imaging results. Subject to Vim’s or the Data Source’s sole discretion, some types of Health History data may not be presented. Health History will not be recorded in the Covered Provider’s EHR system unless incorporated by an Authorized User.
6. Pre-Authorization Application. Vim may present Covered Provider with information pertaining to any pre-authorizations required by the patient’s insurance company for certain medical treatments (the “Pre-Authorization Application”). Information entered into the Pre-Authorization Application is provided by Data Sources. Vim has no discretion or influence over patient’s insurance information, including any required such information required by the Pre- Authorization Application for services.
7. Case Submission Application. For certain patients, Vim Connect may allow submitting a pre-authorization case by allowing providers to access the Data Source’s submission portal directly from the Provider’s EHR system (the “Case Submission Application”). The Data Source, and not Vim, has full and sole discretion to either approve or reject submitted cases.
8. Online Scheduling. Vim’s online scheduling application allows patients to book appointments with Covered Providers (the “Online Scheduling Service”). Covered Provider can deploy the Online Scheduling Service under one of the following configurations:
8.1 An Authorized User may grant Vim, via the Online Scheduling Service, with direct access to their EHR calendar and allow potential patients to book appointments with the Authorized User through the Online Scheduling Service. Under this configuration, appointments are booked instantly on the Authorized User’s EHR calendar.
8.2 An Authorized User may provide Vim with viewing permissions to their EHR calendar to allow Vim to present patients the open slots on the Providers’ EHR calendar. Once a patient has booked a meeting through Vim, an automatic email is sent to Authorized User to approve or propose alternative time slots for the patient.
8.3 If Vim has no access to an Authorized User’s EHR calendar, patients may choose any time slot on the Online Scheduling Service. The chosen time slot is then sent to the Authorized User to approve the appointment or to propose alternative time slots.
8.4 Vim can integrate with patients-facing platforms through an Application Programming Interface (“API”) or a Software Development Kit (“SDK”).
8.5 When integrating with Vim through an API the following provisions shall apply:
8.5.1 Vim shall receive access to any required testing or production environment.
8.5.2 Vim shall not be responsible or liable for any errors, bugs, or delays caused by the patient-facing platform or Data Source’s API.
8.5.3 Vim has no access to user interfaces (“UI”) when the integration with patients-facing platforms is done through APIs. As a result, Vim has no capabilities, nor any legal obligation, to present any statutory or requested disclaimers or to collect any statutory consent from patients.
8.6 When integrating with Vim through an SDK, the following provisions shall apply:
8.6.1 Owners of patients-facing platforms shall adhere to any written or oral guidelines provided by Vim with regard to Vim’s SDK implementation.
8.6.2 Vim shall not be responsible and liable for any errors, bugs, or delays caused by a faulty implementation of Vim’s SDK.
8.6.3 Vim shall include on top of the UI, its terms of service, privacy policies, and any other required disclaimers. Patient consent documentation may include the patient’s name and the date the patient has requested to book the appointment.
8.6.4 Vim does not guarantee that potential patients using the Online Scheduling Service will attend scheduled appointments. Therefore, owners of patients-facing platforms hereby release Vim from any liability related to appointments scheduled via the Online Scheduling Service, including without limitation, any form of damages caused by canceled appointments.
8.6.5 Covered 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 necessary for Covered Provider’s use of Vim Connect and the Services, including without limitation, to the extent applicable, 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.
Revision Date: 4/1/2023
Appendix II
United Healthcare Point of Care Assist (“POCA”) Product-Specific Terms
1. United Healthcare Point of Care Assist (“POCA”) Product-Specific Terms. This Appendix contains the specific terms and conditions applicable to POCA, meaning those terms and conditions that are different or additional to the Terms that apply to Covered Provider’s access to and use of POCA in connection with Vim Connect and the Services, as applicable.
2. Definitions
2.1 The “Vim Contracted Payer” means United Healthcare.
2.2 The “Hosted Service” means Vim Connect.
2.3 “Authorized User” means each health care provider with a unique NPI number (or their delegate(s)) who is authorized to access and utilize POCA.
3. POCA Product-Specific Terms. In consideration of the mutual covenants contained herein, the Parties agree as follows:
3.1 Covered Provider acknowledges and agrees that to the extent that the Hosted Services include information provided by the Vim Contracted Payer (including but not limited to prior authorization, cost transparency and gaps in care information), such information is made exclusively available by the Vim Contracted Payer, and that Vim has no liability for the content or accuracy of such information.
3.2 Vim hereby warrants and represents (the “Warranty”) that the Hosted Services provided hereunder will perform in substantial conformity with the applicable specifications (including but not limited to any applicable security requirements) as agreed between Vim and the applicable Vim Contracted Payer, a copy of which will be provided upon request (the “Specifications”). In the event of a breach of the Warranty, Vim will use commercially reasonable efforts to repair or replace all or any component of the Hosted Services at no charge. Vim shall have no Warranty obligations, however, if the Hosted Services were changed or modified by Covered Provider or any third party (unless such modifications were approved by Vim) or if the Hosted Services are not operating on equipment or a system as specified in the Specifications or approved by Vim.
3.3 Vim may deprecate any portion, aspect or feature of the Hosted Services for any reason, or no reason, at any time upon thirty (30) days’ notice to Covered Provider. Vim may immediately suspend or terminate Covered Provider’s or any Authorized User’s access to and use of the Hosted Services or any portion, aspect or feature of the Hosted Services, or delete Covered Provider’s or any Authorized User’s profile and any materials or information that are posted on the Hosted Services for reasons related to an actual, threatened or suspected security incident and/or violation of the applicable Terms without notice to Covered Provider.
3.4 LIMITATION OF LIABILITY. EXCLUDING CLAIMS FOR GROSS NEGLIGENCE, WILLFUL OR UNLAWFUL MISCONDUCT, BREACH OF ITS THIRD-PARTY INDEMNITY OBLIGATIONS AND/OR BREACH OF ITS CONFIDENTIALITY OBLIGATIONS HEREUNDER, 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. IN NO EVENT WILL VIM’S LIABILITY FOR ANY AND ALL DAMAGES, LOSSES, CLAIMS AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR AN ENROLLMENT FORM EXCEED THE FOLLOWING AMOUNTS:PROVIDER GROUP SIZELIMITATION OF LIABILITY
0-50 Users $5,000
51 – 500 Users $50,000
500 Users $100,000
Appendix III
AMA CPT End User Agreement Terms
1. AMA CPT-Specific Terms. This Appendix contains the specific terms and conditions applicable to CPT, meaning those terms and conditions that are different or additional to the Terms that apply to Covered Provider’s access to and use of CPT in connection with Vim Connect and the Services, as applicable.
2. Definitions
2.1 “End User” means Covered Provider and Covered Provider’s Authorized Users.
2.2 “Licensed Content” means Current Procedural Terminology (CPT®) Data File, which means content from the print publication Current Procedural Terminology, Fourth Edition and CPT Standard data file published by the AMA.
2.3 “Licensed Product(s)” means Vim Referral Guidance and Analytics.
2.4 “Territory” means is defined as the following: Algeria, Argentina, Australia, Bahamas, Bahrain, Belgium, Bermuda, Brazil, British Virgin Islands, Canada, Cayman Islands, Chile, China, Colombia, Costa Rica, Cyprus, Denmark, Dominican Republic, Ecuador, El Salvador, Finland, France, Germany, Guatemala, Hong Kong, India, Ireland, Israel, Italy, Jamaica, Japan, Jordan, Republic of Korea (South Korea), Kuwait, Lebanon, Mexico, New Zealand, Norway, Panama, Peru, Philippines, Portugal, Qatar, Saudi Arabia, Singapore, South Africa, Spain, Sweden, Switzerland, Thailand, Tunisia, Turkey, United Arab Emirates, United Kingdom, United States and its territories, and Venezuela.
3. Terms
3.1 Licensed Content is copyrighted by the AMA and CPT is a registered trademark of the AMA.
3.2 Vim, as a party to a license agreement with the AMA, is authorized to grant End User a limited, non-exclusive, non-transferable, non-sublicensable license for End User to use Licensed Content in Vim’s Licensed Product(s), for the sole purpose of internal use by End User within the Territory. The sublicense granted hereunder shall automatically terminate upon termination of the Agreement between Vim and AMA, unless prior written consent of AMA is obtained by Vim or a direct license between End User and AMA is entered.
3.3 The provision of updated Licensed Content in the Licensed Product(s) is dependent on a continuing contractual relationship between Vim and the AMA.
3.4 End User is prohibited from making Licensed Content publicly available, creating derivative works (including translating), transferring, selling, leasing, licensing, or otherwise making available to any unauthorized party the Licensed Product(s), or a copy or portion of Licensed Content.
3.5 End User expressly acknowledges and agrees to the extent permitted by applicable law, use of the Licensed Content is at End User’s sole risk and the Licensed Content is provided “as is” without warranty of any kind. The AMA does not directly or indirectly practice medicine or dispense medical services. Fee schedules, relative value units, conversion factors and/or related components are not assigned by the AMA, are not part of CPT, and the AMA is not recommending their use. The Licensed Content does not replace the AMA’s Current Procedural Terminology book or other appropriate coding authority. The coding information contained in the Licensed Content should be used only as a guide.
3.6 End User is required to keep records and submit reports including information necessary for the calculation of royalties payable to the AMA as specified by Vim and/or AMA from time to time, including, without limitation, the number of Authorized Users. as follows: All records and reports required under this Section 3.6 shall be subject to audit by AMA.
3.7 The following U.S. Government End Users notice shall be included: U.S. Government End Users. CPT is commercial technical data, which was developed exclusively at private expense by the American Medical Association (AMA), 330 North Wabash Avenue, Chicago, Illinois 60611. This agreement does not grant the Federal Government a direct license to use CPT based on FAR 52.227-14 (Data Rights – General) and DFARS 252.227-7015 (Technical Data – Commercial Items).
3.8 End User expressly consents to the release of its name to the AMA.
