Provider Terms of Service

Last updated January 2, 2024

These terms of service (“Terms”), as may be amended from time to time, are between you, on behalf of yourself or on behalf of a healthcare provider legal entity (in either case, “Covered Provider”), and Vim, Inc. (“Vim”) and govern your access to and use of the Services and Vim Connect. These Terms, together with the Provider Business Associate Agreement, unless you and Vim signed a separate Business Associate Agreement, in which case such Business Associate Agreement will apply (the “BAA”), Vim’s Privacy Policy, the Documentation (as defined below), the Vim Applications Description, any enrollment or order form to the extent signed between you and Vim, and all appendices attached hereto and incorporated herein by reference, are collectively referred to as the “Agreement.”  If you enter into these Terms on behalf of a legal entity, you represent that you are a duly authorized representative with the authority to bind that legal entity to this Agreement. All references to “you” and “your” in this Agreement mean the person accepting this Agreement as an individual or the legal entity for which the representative is acting.

PLEASE READ THESE TERMS CAREFULLY, AS THESE TERMS CONTAIN RIGHTS AND RESTRICTIONS ASSOCIATED WITH YOUR USE OF VIM’S SERVICES AND ANY DOCUMENTATION PROVIDED TO YOU BY VIM A OR ITS AFFILIATES. THESE TERMS CONTAIN AN ARBITRATION CLAUSE AND LIMITATION ON LIABILITY. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT INSTALL, ACCESS, OR USE VIM CONNECT OR THE SERVICES IN ANY MANNER WHATSOEVER.

1. 1. Definitions.
   1. “Application(s)” means any of the Vim applications set forth and described in the Vim Applications Description or the applicable Documentation.
   2. “Authorized User(s)” means any individual or entity who is authorized by Covered Provider to access Vim Connect and the Services under this Agreement.
   3. “Covered Provider Content” means any content, individually identified health information, and other 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.
   4. “Data Source” means any healthcare stakeholders engaging with Vim in order to surface content to Covered Providers through Vim Connect and the Applications. In return, as part of their engagement with Vim, Data Sources receive engagement and utilization data from Covered Provider through Vim Connect.
   5. “Data Source Content” means the content provided by the Data Source to Vim for the purpose of surfacing it to Covered Providers.
   6. “Documentation” means any materials provided by Vim to Covered Provider describing the use and operation of Vim Connect or the Online Scheduling Services.
   7. “EHR” means any Electronic Health Record application or equivalent system.
   8. “Services” means any services provided by Vim to Covered Provider under this Agreement including, but not limited to, the provision of Vim Connect.
   9. “Vim Connect” means the point-of-care bidirectional connection platform provided by Vim that connects Data Source Content with existing Covered Providers’ EHR workflows. Vim Connect includes the Applications, the Tools (as defined below), and the Vim Console.
   10. “Vim Console” means the self-service portal that enables the Admin (as defined below) to manage Authorized Users and Covered Provider’s access to and use of the Applications available on Vim Connect.
2. 2. Access to Vim Connect and the Services.
   1. Access and License. During the term of the Agreement, Vim shall provide Covered Provider and Authorized Users with a limited, revocable, non-exclusive, non-transferable, non-sublicensable license to use Vim Connect and the Services. Vim Connect may only be used by Authorized Users approved by Covered Provider and, where applicable, only on the AU Equipment (defined below) assigned to an applicable Authorized User. Vim Connect may only be used for Covered Provider’s internal business purposes and as permitted by the 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. 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. Vim or its designees may have access to computer hardware and media assigned to Authorized Users (the “AU Equipment”), by direct or remote access, to verify Covered Provider’s compliance with this Agreement.
   2. Access to Data Source Content. Vim Connect detects patients’ data presented on your EHR and matches it with Data Source Content. If a match is successful, Data Source Content is presented on your EHR. Data Source Content is not automatically incorporated into your EHR and Authorized Users are responsible for incorporating the Data Source Content into the EHR. Covered Provider acknowledges and undertakes to, and shall ensure that all Authorized Users, access Data Source Content within the United States only.
   3. Applications. The complete list of Applications and Data Sources applicable to Covered Provider can be found within the Vim Console. Applications will only be available to Covered Provider and its Authorized Users if (i) patient’s Data Source has enabled such Application; and (ii) Covered Provider has not disabled the Application or Data Source. You may opt out of any or part of the Services or any Data Source at any time through the Vim Console. Additional terms and conditions may apply to certain Applications as set forth in the Vim Applications Description. Vim may modify, discontinue, or replace any Application at any time.
   4. United Healthcare POCA. solely to the extent that Covered Provider is using United Healthcare Point of Care Assist in connection with a patient insured by United Healthcare, then the United Healthcare Point of Care Assist Product-Specific Terms (“POCA Terms”) apply in addition to these Terms.
   5. CPT Codes. Vim Connect and the Services may include the Current Procedural Terminology (“CPT”) code set, maintained by the American Medical Association (the “AMA”). The use of the CPT code is subject to the AMA CPT End User Agreement Terms.
3. 3. Covered Provider Obligations.
   1. Third-party Obligations and Licenses. It is Covered Provider’s sole responsibility to ensure that its use of Vim Connect and the Services do not infringe or breach any of its obligations to third parties, including, but not limited to, its EHR provider. Covered Provider is solely responsible for obtaining all consents, licenses, and authorizations necessary in connection with Covered Provider’s provision of medical care and its use of Vim Connect, including, but not limited to, maintaining a valid EHR license. Covered Provider shall promptly notify Vim if it has reason to believe that using Vim Connect and/or the Services may infringe or breach the EHR license or any AU Equipment terms, and its continued use of Vim Connect and the Services is at Covered Provider’s sole discretion and responsibility.
   2. Access to Covered Provider’s Systems. Covered Provider shall on an ongoing basis provide Vim access, and obtain any required approvals, to use relevant facilities, systems, applications, 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.
   3. System requirements. Covered Provider is solely responsible for maintaining all relevant IT resources required for its access and use of Vim Connect and the Services. Covered Provider shall reasonably adhere to Vim’s guidance for configuration, testing, and other recommended resources as necessary for Covered Provider’s use of Vim Services. Vim may, in its sole discretion, discontinue the availability or compatibility of the Services or Vim Connect, on a particular operating system, browser, device, or EHR.
4. 4. Authorized Users, Accounts, and Usage Requirements.
   1. Admins. Covered Provider will identify one or more Authorized Users as the administrator for Covered Provider’s use of Vim Connect (the “Admin”). The Admin is responsible for (a) identifying and enabling Covered Provider’s employees or contractors who should be Authorized Users; (b) establishing the specific rights and permissions and scope of access to Vim Connect and the Services for each Authorized User; (c) deactivating or otherwise terminating Authorized Users whose employment or engagement with Covered Provider terminates; (d) selecting the method by which Authorized Users will authenticate their Vim Connect accounts; (e) acting upon any suspected or unauthorized access to and use of Vim Connect; and (f) 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 additional terms.  Covered Provider represents and warrants that the Admin is authorized to perform the tasks set forth herein and act on behalf of Covered Provider. If Admin is acting on behalf of several Covered Providers, Covered Provider represents that the Admin is authorized to act on behalf of each Covered Provider managed in the Vim Console. Vim may rely upon actions taken, information provided or instructions given by the Admin to Vim with respect to all Covered Providers managed by the Admin.
   2. Responsibilities. Covered Provider is responsible for (a) performing all required screening processes to ensure that the Authorized Users are eligible to receive access to, and data provided through, Vim Connect and the Services; (b) ensuring that Admin and Authorized Users comply with this Agreement; (c) providing Vim with accurate, complete and up-to-date information for all Authorized User and their accounts and updating Vim with any changes thereto; (d) maintaining the confidentiality of Authorized Users login credentials; and (e) 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’ login credentials, whether or not Covered Provider knows about them and Vim assumes no responsibility for any fraudulent or unauthorized use Vim Connect under Covered Provider’s or its Authorized Users’ accounts or by use of their login credentials. Covered Provider will be liable for any and all acts and omissions of Admin and/or its Authorized Users including, but not limited to, any acts or omissions that conflict with or breach this Agreement. Covered Provider shall immediately notify Vim through [email protected] of any Admin and/or Authorized User breach of the Agreement and Covered Provider will be liable for any damage caused to Vim as a result of Admin and/or Authorized User’s activities or the Covered Provider’s failure to provide such notice. Vim may suspend or terminate an Authorized User’s access to Vim Connect or any Applications at any time, without notice or explanation to the Authorized User or Covered Provider.
   3. Authentication. Covered Provider is responsible for ensuring that Authorized Users individually authenticate their sessions directly with Vim, whether such authentication is done by the Covered Provider or by an external identity management solution. Covered Provider: (1) consents to install and implement an automated verification process, 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 (defined below) including consenting to automated account creation, verification or authentication processes. Vim may notify Admin if it detects 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.
   4. Access to Account Information. 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 Vim shall provide only the minimum amount of account information as necessary to comply with the same.
5. 5. Compliance with Laws.
   1. General. You 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.
   2. HIPAA Compliance. Notwithstanding the parties’ obligation to comply with the BAA, as the covered entity, it is your responsibility to protect the privacy and security of individually identified health information transmitted through Vim Connect or the Services. It is also your responsibility to obtain all required 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”). You represent and warrant that you: (a) obtained all patient consents and authorizations necessary for the use of such patient information or materials in connection with Vim Connect and as otherwise contemplated by the Agreement; (b) have and will retain records sufficient to demonstrate compliance with this patient consent and authorization requirement; and (c) will notify your patients that they must contact their insurer if they do not wish for their patient information to be processed through Vim Connect.
6. 6. Ownership.
   1. Software Ownership. You understand and acknowledge that Vim owns all rights, titles, and interests in and to Vim Connect, the Services and all Tools, software (in source code or object code), processes, algorithms, techniques, architecture, designs, interfaces, and items of a similar nature, whether 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”), and Covered Provider shall have no rights or interests therein. None of the Services, Vim Connect, or Tools, or any component thereof, is or shall be deemed to be a “work made for hire,” as that term is defined in 17 U.S.C. § 101.
   2. Covered Provider Content. As between Vim and Covered Provider, Covered Provider shall retain all rights, titles, and interests in and to Covered Provider Content. 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 (i) as necessary in connection with Vim Connect and to provide the Services and related technical support, including improvement of Vim Connect and the Services, (ii) in connection with any Application-specific functionality, (iii) to verify compliance with this Agreement; (iv) as may be required by applicable law, court order, or governmental authority, and (v) for de-identification purposes in accordance with applicable laws..
   3. Covered Provider IP. Covered Provider grants Vim a limited, worldwide, royalty-free, fully paid-up, 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.
   4. System Usage Data. Vim owns all rights, titles, and interests in and to any data that Vim collects or generates in connection with your use of Vim Connect or the Services, including but not limited to, product usage data, user input data, data that has been de-identified, and similar data.
7. 7. Use Restrictions. Covered Provider will not, and will ensure that its Authorized Users do not:
   1. copy Vim Connect, except as absolutely necessary for backup purposes. In no event shall Vim Connect, or any copy thereof, be removed from Covered Provider’s facilities, except for reasonable off-site storage backup copies and third-party hosting of Vim Connect. Upon request, Covered Provider shall provide Vim with an accurate accounting of all copies made by Covered Provider;
   2. use Vim Connect, the Services or the Tools in any way that violates any applicable local, national or international laws or regulations;
   3. use Vim Connect, the Services or the Tools in any way that may breach Covered Provider’s agreements with third parties;
   4. use Vim Connect, the Services, the Tools, including but not limited to accessing Data Source Content, from locations outside the U.S. territory;
   5. use Vim Connect, the Services or the Tools in any way that is unlawful or fraudulent, or has any unlawful or fraudulent purpose or effect;
   6. doing anything, purposefully, which may impair or overburdens Vim Connect, the Services or the Tools or interferes with or disrupt the integrity or performance of Vim Connect, 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;
   7. access without authority, interfere with, damage or disrupt any part of Vim Connect, the Services or the Tools, any equipment or network on which they are stored or any software used in connection therewith;
   8. upload any abusive, infringing or otherwise illegal content;
   9. 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;
   10. attempting to circumvent any content filtering techniques that we may employ now or in the future;
   11. including links or deep links to any website without authorization;
   12. falsifying the origin or source of any content or other material;
   13. 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 Vim Connect, the Services or the Tools, or which may expose Vim Connect, the Services or the Tools or an Authorized User to harm or liability of any kind howsoever;
   14. misusing Vim Connect, 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;
   15. transmitting or sharing any content, data, or other materials on or through Vim Connect, the Services or the Tools that violate or infringe upon the rights of any third party, including, without limitation, copyright, trademark, right to privacy, publicity or other personal or proprietary rights or contain inflammatory, offensive, insulting or abusive, libelous, or defamatory;
   16. selling, reselling, renting, or leasing the Vim Connect, the Services or the Tools, or allowing access to anyone who is not an Authorized User hereunder;
   17. modifying, altering, reverse engineering, decompiling, reverse compiling or disassemble Vim Connect, the Tools or the Services;
   18. creating any derivative work or any adaptation of Vim Connect, the Tools or the Services;
   19. displaying 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 in order to operate 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 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.

8. 8. Term; Termination.
   1. Term. This Agreement shall continue until terminated in accordance with the terms hereof.
   2. Termination by Vim. Vim may terminate the Agreement (i) immediately, without notice, if the relevant Data Sources cease to provide the Data Source Content to Vim as stipulated in Section 2.2 above, (ii) following a material breach by Covered Provider, which breach is uncured within thirty (30) days of Vim’s written notice to Covered Provider, or (iii) immediately, if Covered Provider’s breach is incapable of being cured.
   3. Termination by Covered Provider. Covered Provider may terminate this Agreement at any time by removing the Vim Connect application from Covered Provider’s computer systems.
   4. Termination due to 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.
   5. Post-termination provisions. In the event of any expiration or termination of this Agreement (i) all of Covered Provider’s rights to access and use 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) Vim will wind up its work in a commercially reasonable manner; and (iii) Covered Provider shall uninstall and destroy any copies of Vim Connect 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.
9. 9. Confidentiality.
   1. Confidential Information. Each party acknowledges access to the other party’s confidential and proprietary information which may include without limitation, information regarding products, operations, business plans, strategies, processes, customers, pricing, product roadmaps, procedures, billing, and collection procedures (the “Confidential Information”).
   2. Confidentiality obligation. 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.
   3. Non-Confidential Information. Confidential Information will not include information that 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. The provisions of this section hereby supersede any prior written or oral agreements between the parties regarding confidentiality or nondisclosure.
   4. Disclosure of Confidential Information under a court order. 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.
10. 10. Representations; Warranties; Disclaimers.
    1. General. Each party hereby represents and warrants 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.
    2. No Warranties. Except for any warranties expressly made herein or in Application-specific terms, 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 MAKES NO GUARANTEE, WARRANTY, OR REPRESENTATION (i) REGARDING THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF VIM CONNECT OR THE SERVICES, (ii) REGARDING THE ACCURACY OR RELIABILITY OF ANY DATA SOURCE CONTENT OR ANY OTHER INFORMATION PROVIDED  THROUGH VIM CONNECT OR THE SERVICES OR INFORMATION SUBMITTED TO A COVERED PROVIDER’S EHR THROUGH VIM CONNECT, (III) THAT THE INFORMATION PRESENTED ON COVERED PROVIDER’S EHR CORRECTLY MATCHES THE DATA SOURCE CONTENT PRESENTED ON VIM CONNECT, OR (IV) THAT VIM CONNECT OR THE SERVICES WILL MEET ANY USER’S REQUIREMENTS, OR BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE. ANY INFORMATION OBTAINED THROUGH THE USE OF VIM CONNECT OR THE SERVICES IS AT YOUR OWN DISCRETION AND RISK. YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES ARISING FROM THE USE OF VIM CONNECT OR THE SERVICES. THE ENTIRE RISK ARISING OUT OF YOUR USE OF VIM CONNECT OR THE SERVICES REMAINS WITH YOU.
    3. No Medical Advice or treatment. ANY INFORMATION FURNISHED BY VIM CONNECT OR THE SERVICES DOES NOT REPLACE OR ALTER ANY PROCESS IN COVERED PROVIDERS’ EXISTING WORKFLOWS THAT CONTEMPLATES AND REQUIRES THE INVOLVEMENT OF TRAINED INDIVIDUALS. MEDICAL CODING 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 JUDGMENT OF A CERTIFIED CODER OR THE AUTHORIZED USER PERFORMING A PROCEDURE, WHO REMAINS RESPONSIBLE FOR CORRECT CODING AND ALL SUPPORTING DOCUMENTATION. AUTHORIZED USERS SHOULD ALWAYS USE DISCRETION AND PROFESSIONAL JUDGMENT IN ACCORDANCE WITH APPLICABLE LAWS, RULES AND REGULATIONS WHEN USING VIM CONNECT AND THE SERVICES. VIM CONNECT AND THE SERVICES ARE NOT INTENDED TO AND DO NOT HAVE THE ABILITY TO DIAGNOSE DISEASE, PRESCRIBE TREATMENT, OR PERFORM ANY OTHER TASKS THAT CONSTITUTE THE PRACTICE OF MEDICINE. 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 OR FOR DECISIONS MADE OR ACTIONS TAKEN OR NOT TAKEN IN MEDICAL RECORD DOCUMENTATION IN COVERED PROVIDER’S EHR OR FOR INFORMATION PROVIDED TO INSURANCE COMPANIES, GOVERNMENTAL AGENCIES, OR OTHER DATA SOURCES.
    4. Data Retention. VIM CONNECT AND THE SERVICES ARE NOT AN EHR OR DATA REPOSITORY AND DO NOT STORE OR MAINTAIN ANY DATA ON BEHALF OF COVERED PROVIDER. YOU ARE SOLELY RESPONSIBLE FOR ENSURING THAT ALL RECORDS OF MEDICAL CARE MAINTAINED BY COVERED PROVIDER ARE ACCURATE AND COMPLETE. VIM DOES NOT ASSUME ANY RESPONSIBILITY FOR RETENTION OF ANY DATA, INCLUDING DATA STORED ON THE EHR, USER INFORMATION, OR COMMUNICATIONS BETWEEN USERS. USE OF VIM CONNECT AND THE SERVICES IS AT YOUR SOLE RISK.
    5. Third-party Links. THIRD-PARTY WEBSITES OR RESOURCES LINKED FROM VIM CONNECT ARE PROVIDED FOR CONVENIENCE ONLY AND VIM IS NOT RESPONSIBLE FOR THE CONTENT, PRODUCTS OR SERVICES ON OR AVAILABLE FROM SUCH WEBSITES AND RESOURCES. YOU ARE SOLELY RESPONSIBLE FOR AND ASSUME ALL RISK ARISING FROM, YOUR USE OF ANY THIRD-PARTY WEBSITES OR RESOURCES.
11. 11. Limitation of Liability; Indemnification.
    1. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES WILL EITHER PARTY 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. UNDER NO CIRCUMSTANCES WILL VIM BE HELD LIABLE FOR TERMINATION, SUSPENSION, DISCONTINUANCE, OR DISCONNECTION OF VIM CONNECT OR THE SERVICES. EXCEPT FOR GROSS NEGLIGENCE, WILLFUL OR UNLAWFUL MISCONDUCT OR IN CONNECTION WITH A ITS INDEMNIFICATION OBLIGATIONS, OR AS EXPRESSLY AGREED IN WRITING BETWEEN THE PARTIES, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, 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.
    2. Indemnification by Vim. 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.
    3. Indemnification by you. You will 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 you or Authorized Users of this Agreement, any agreement between you or Authorized Users and a third-party for any application or service needed in order to access or use the Applications (e.g., the EHR license) or a representation or warranty hereunder; (ii) any unauthorized access or use of Vim Connect or the Services by you, Authorized Users or their accounts; (iii) any Covered Provider Content, materials, or information shared, utilized, or provided by you on Vim Connect or in connection with the Services or otherwise made available by you to Vim; (iv) your or an Authorized User’s provision of medical services of any kind; or (v) any and all of your or Authorized Users’ actions in conjunction with Vim Connect and the Services.
    4. Indemnification Procedure. A party seeking indemnification shall promptly notify the other party of any such claim, action, or proceeding upon becoming aware of it. The indemnifying party hereunder may select counsel of its choosing. However, in the event that the indemnifying 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, such consent shall not be commercially unreasonably withheld, conditioned, or delayed.
12. 12. Miscellaneous.
    1. Governing Law. 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.
    2. Arbitration. Any and all disputes arising under or otherwise concerning this Agreement shall be submitted 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. 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. 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 arbitrator’s authority will include, without limitation, the authority to grant interim and permanent injunctive relief. The arbitrator will be bound by the limitation of liability provisions set forth in Section 11.1 of these Terms (or, for United Healthcare Point of Care Assist, by the limitation of liability provisions set forth in the POCA Terms). 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. Confidential Arbitration Information may only be disclosed 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. Notwithstanding the foregoing, a party may disclose Confidential Arbitration Information: (i) in compliance with a lawful order or process of a court of competent jurisdiction or governmental agency (provided, however, that the disclosing 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. 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.
    3. Class Action Waiver. 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.
    4. Headings. Section headings are for convenience only and shall not affect the meaning or interpretation of this Agreement.
    5. Severability. 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.
    6. Changes to Terms. Vim reserves the right to update these Terms at any time by providing you with notice of the changes in accordance with Section 12.13. The updated Terms will become effective thirty (30) days following Vim’s notice. Your or your Authorized Users’ continued use of Vim Connect or the Services following such notice period constitutes your acceptance of the updated Terms. If you do not agree to the updated Terms, you and any Authorized Users must discontinue using Vim Connect and the Services immediately.
    7. Assignment. You may not assign this Agreement without Vim’s prior written consent.
    8. Independent Relationship. The parties hereto are independent contractors, and neither Vim nor Covered Provider is an agent, representative, employer, employee, or partner of the other.
    9. No agency. 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.
    10. No third-party beneficiary rights. 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 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.
    11. Entire Agreement. The Agreement constitutes 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 any enrollment form signed between the parties: (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.  A mutually signed written agreement between the parties may be used to amend any specific provisions of these Terms 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.
    12. No waivers. 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.
    13. Notices. 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 Vim Console 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.
    14. Survival. Any provisions of this Agreement that by their nature are intended to survive any termination or expiration of the Agreement shall survive.
    15. Force majeure. 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.
    16. Counterparts; Electronic Signatures. Any and all documentation to be delivered in connection with this Agreement may be electronically signed and any such electronic signatures are the same as handwritten signatures for 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.