Please therefore take the time to read this Agreement carefully before agreeing or submitting your information to us as this Agreement contains important information regarding Your legal rights, remedies and obligations, and include various limitations and exclusions.
IF YOU DO NOT AGREE WITH ANY PART OF THIS AGREEMENT, YOU SHOULD NOT AGREE TO THE COVER SHEET AND IMMEDIATELY STOP ACCESSING, BROWSING OR USING THE PLATFORM AND SERVICES.
(a) The BAA shall exclusively govern the treatment of any data, content or patient information (including without limitation, clinical notes and images, health care records, referral and medical appointment details or provider details comprising “Protected Health Information”, as defined under the Health Insurance Portability and Accountability Act of 1996, and the Health Information Technology for Economic and Clinical Health Act, and the final regulations to such Acts that the U.S. Department of Health and Human Services has promulgated and set forth in 45 CFR Parts 160 and 164, in respect of its subject matter.
(b) Any conflict between the terms of the documents comprising this Agreement must be resolved by reading the documents in the following order of precedence:
(i) the BAA;
(iii) the Subscriber Terms; and
2 GRANT OF LICENSE
2.1 We grant to You and each of Your Authorized Users a personal, non-exclusive, non-transferable, non-assignable, non-sublicensable license to access and use the Oculo Platform (Platform), and all applications, tools, information, content, materials, data, products and services made available to You on the Platform from time to time (Services) at Your Location on the following terms and conditions for the Term (defined below). In this Agreement, a reference to an “Authorized User” means individuals (including Your employees, consultants and contractors and Your wholly-owned subsidiaries) who are permitted to access the Platform or use the Services through an account linked to Your Subscription in accordance with written roles and responsibilities issued by You.
3 TERM AND RENEWAL
This Agreement will commence on the day on which Oculo sends Your Location Account Manager an email containing the unique subscriber account username and password for Your Subscription and continue until terminated in accordance with its terms (Term).
4 YOUR OBLIGATIONS
4.1 You will pay the Subscription Fee in accordance with this Agreement, or as otherwise notified to You in writing by iViews.
4.2 You warrant that You will use Your reasonable endeavours to ensure that each Authorized User will, access and use the Platform and Services, and any data, content or patient information (including without limitation, clinical notes and images, health care records, referral and medical appointment details or provider details which are made available to You on the Platform) (Data and Content) with all due care and diligence, in a professional manner, in good faith and for a proper purpose, and in accordance with:
(a) all applicable state or federal laws, regulations and rules which are applicable to You or Your Location, including those pertaining to privacy and the collection, use, storage, disclosure and disposal of Protected Health Information (together, Applicable Laws); and
(b) applicable standards, guidelines, policies and codes of conduct relevant to You or Your Location, Your professional obligations or Your use of the Platform and Services (together, Standards, Policies and Codes).
4.3 As soon as practicable following Your entry into this Agreement, You must provide iViews or Us with details of the designated person at the Location who will be responsible for administering Your Subscription and any account linked to Your Subscription (Location Account Manager). We will, upon commencement of this Agreement, send the Location Account Manager an email containing the unique subscriber account username and password for Your Subscription in order to enable You to access the Platform and the Services, which will constitute Our delivery of the Platform to You. If You are the owner or operator of an ophthalmic practice, the Location Account Manager may then (using the subscriber account) create such ophthalmologist accounts as subscribed for (but no more than the amount subscribed for), and such clinical support personnel and practice administrator accounts as Your Location may require, from time to time. If You are the owner or operator of an optometric practice, the Location Account Manager may then (using the subscriber account) create such optometrist, clinical support person and practice administrator accounts as Your Location may require, from time to time. We may not be able to provide You with access to the Platform and the Services if You have not provided us with the details of Your Location Account Manager. If You wish to query a delivery, please contact us by email addressed to firstname.lastname@example.org.
4.4 You must ensure that, after any Authorized User ceases to be employed or engaged by You, You or the Location Account Manager immediately terminate that user’s access to the Platform and notifies Us. Oculo shall have no responsibility for monitoring or managing access credentials for Authorized Users.
4.5 You acknowledge and agree as follows:
(a) You remain fully responsible for all acts and communications and for any liabilities incurred through use of Your Subscription or any account linked to Your Subscription (whether lawful or unlawful).
(b) You remain liable to Oculo for all acts and omissions of Your Location Account Manager and Authorized Users (including any activity that occurs using any account linked to Your Subscription (whether lawful or unlawful), including for any Content and Data posted, transmitted using, or uploaded to the Platform or made available through the Services, and that such acts will be deemed to have been completed by You.
(c) You and Your Authorized Users may only use the Platform and Services for Your own internal business purposes or as otherwise expressly permitted under this Agreement;
(d) the Platform and Services are provided only for Your benefit and the benefit of Your Authorized Users;
(e) You must not, and You must ensure that Your Authorized Users do not:
(i) use or attempt to use another user's account, service or system, or create or use a false identity or Account on the Platform;
(ii) sublicense, transfer, sell, rent or otherwise provide access to the Platform or Services to any third party other than as expressly permitted under this Agreement;
(iii) access or attempt to access any Data and Content on the Platform or Services which has not been provided by You, Your Authorized User or any third party in connection with Your Subscription, or to a third party to facilitate a referral for the clinical care of that Patient, except as expressly permitted under this Agreement;
(iv) use, copy, store, access or otherwise handle any information, Data and Content including Personally Identifiable Information and Protected Health Information in any way that is inconsistent with this Agreement or that is contrary to or violates the privacy rights of any individual, including Patients;
(v) reproduce, disclose, decompile, disassemble, reverse engineer or modify the Platform or Services, or any aspect of any of the foregoing, or be involved in development or commercialization of any product or service which competes with the Platform or Services (or any aspect thereof);
(vi) engage in any conduct or activity or allow any activity or conduct that will harm or is likely to harm Oculo's name, reputation or goodwill;
(vii) disrupt, modify or interfere with the security of, or otherwise abuse, the Platform, Services, any Data and Content, system resources, software (including source code and object code), accounts, servers or networks connected to or accessible through the Platform, or any other user’s enjoyment of the Platform or Services;
(viii) infringe a third party’s patent, copyright, trademark, trade secret, moral rights or other Intellectual Property Rights, whether by uploading Data and Content or otherwise;
(ix) upload, post, disseminate or otherwise transmit on or through the Platform or Services (including when submitting any Data and Content to the Platform in any format) any:
(A) unlawful, defamatory, harassing, libellous, tortious, abusive, offensive, threatening, or obscene material of any kind;
(B) Data and Content in respect of a Patient without the authorization of such Patient, to the extent any such authorization is required by Applicable Laws or Standards, Policies and Codes;
(C) any virus, worm, Trojan horse, Easter egg, time bomb, spyware, or other computer code, file or program that is potentially harmful or invasive, or may or is intended to damage or hijack the operation of, or to monitor the use of, any hardware, software or equipment; or
(D) spam, chain letters, junk mail or any other type of unsolicited mass email to Patients or entities who have not agreed to be part of such mailings; or
(x) permit, encourage or take any action to facilitate any person to do any of the foregoing.
(f) Oculo also reserves the right to audit or monitor Your Subscription or any account linked to Your Subscription for any legal purpose, including inspecting records of Your, Your Location Account Manager or any Authorized Users use of the Platform and the Services, at any time and without notice to You. However, You acknowledge that Oculo has no obligation to monitor, or otherwise audit Your Subscription or any account linked to Your Subscription, or to edit or screen any Data and Content uploaded by You or any other person.
5 OCULO OBLIGATIONS
5.1 In respect of the provision of the Platform and Services under this Agreement, Oculo will:
(a) ensure that any data limit imposed on Your subscriber account will not be less than 500 MB of Data and Content per day (Minimum Daily Upload Quota), and, in the event that We cannot support such Minimum Daily Upload Quota, We will advise You as soon as is reasonably practicable;
(b) use its reasonable endeavours to ensure that:
(i) the Platform and Services (including any Data and Content) is maintained in accordance with Applicable Laws (as amended from time to time); and
(ii) Oculo provides a level of security in respect of the Platform and Services which is in accordance with best practice in the eye care industry, and which meets any specific security threats and prevents unauthorized access to the Platform and Services; and
(iii) all Data and Content uploaded by You, on Your behalf (including by an Authorized User), or in connection with Your Subscription is kept confidential, safe and secure at all times while hosted on the Platform.
In addition to and without limiting any other term or warranty set out in this Agreement, in respect of Your Data and Content including Patient Data and Content that You contribute to the Platform, You warrant that:
(a) You have all necessary rights and authorizations to contribute Your Data and Content to the Platform and to allow any of Your Data and Content to be used by Oculo in accordance with this Agreement and for the purpose of providing the Services;
(b) Your Data and Content:
(i) has been collected by You in a diligent and professional manner and in accordance with all Applicable Laws and Standards, Policies and Codes, and in such a manner that the use of such Data and Content for the purposes of providing the Platform and Services and otherwise in accordance with this Agreement will not breach such Applicable Laws or Standards, Policies and Codes; and
(ii) is accurate, relevant, up to date, complete, and comprises legitimate and original content; and
(iii) neither Your Data and Content nor Your posting, uploading, publication, submission or transmission of Your Data and Content or Our use of Your Data and Content (or any portion thereof):
(A) infringes or will infringe, misappropriate or violate any third party Intellectual Property Rights or rights of publicity or privacy when used on, or in connection with, the Platform or the Services, or;
(B) results in the violation of any Applicable Laws or Standards, Policies and Codes; and
(C) no proceedings have been instituted by any third party against You in connection with any of Your Data and Content for the infringement of that party’s Intellectual Property Rights or rights of publicity or privacy of any kind.
7 THIRD PARTY LINKS AND WEBSITES
7.2 Oculo may use third party software, hardware or services (including hosting services) in providing the Platform and the Services and may change its providers from time to time. Oculo will use reasonable efforts to ensure use of such third party software, hardware or services does not result in diminution of the quality of the Platform, but will not have any responsibility for any such diminution arising from a defect or failure of such third party software, hardware or services.
8 FEES, PAYMENT AND TAXES
8.1 You must pay the subscription fees to iViews as notified to you in writing by iViews prior to entry into this Agreement (Subscription Fee). Subject to any trial period agreed in writing between You and iViews prior to the commencement of this Agreement during which you are not required to pay fees, or the fees payable by you are reduced, the Subscription Fee will be invoiced to You monthly in advance, or otherwise as expressly agreed between You and Us in writing.
8.2 All payments of the Subscription Fee, whether payable on an annual basis or by monthly instalments, must be made within fourteen (14) days from Your receipt of a duly rendered invoice from Us, or by direct debit if agreed between Us.
8.3 Oculo reserves the right to set a maximum amount of network bandwidth, memory, or other computer storage that You may use, and a maximum amount of data that You may store, upload, post, disseminate or otherwise transmit, on or through the Platform, under this Agreement, and to charge additional fees for any use which Oculo determines, acting reasonably, is excessive. Oculo also reserves the right to charge fees in respect of eFax transmissions and administering payment transactions.
8.4 Unless otherwise indicated, the Subscription Fee payable to iViews excludes all applicable sales, goods and services, use and other taxes, and You will be responsible for payment of all such taxes (other than taxes based on iViews’ revenue), fees, duties and charges, and any related penalties and interest, arising from the payment of such fees, or the delivery or use of the Platform and Services.
8.5 You must pay all amounts payable under this Agreement without deduction, except deductions You are required by law to make from any amounts due under this Agreement for or on account of any tax, duty, levy or charge (Deduction). If any deduction or withholding is required by law to be made from any payment under this Agreement, the amount of the payment shall be increased by such additional amount as is necessary to ensure that the net amount received and retained by the recipient (after taking account of all Deductions and withholdings or tax) is equal to the amount which it would have received and retained had the payment in question not been subject to any deductions or withholdings or tax.
9 SUSPENSION AND TERMINATION
(a) We may temporarily limit or suspend the availability of the Platform and Services to You, Your Location Account Manager and Your Authorized Users if limitation or suspension is necessary, in Our reasonable opinion, for reasons of public safety, security or maintenance of the Platform or Services, interoperability, data protection or to perform other work that We deem necessary for operational or technical reasons.
9.3 Termination by You
(a) You may terminate this Agreement for any reason by providing no less than three (3) month’s prior written notice to iViews.
(b) You may immediately terminate this Agreement upon written notice to iViews if iViews or Oculo:
(i) breache a material term of this Agreement and does not remedy such breach within thirty (30) days;
(iii) provides you with notice of a change to this Agreement under section 17.2 of this Agreement and you notify iViews in writing within the 30 day period following receipt of such notice; or
(iv) becomes insolvent, appoints an administrator or liquidator or goes into receivership.
(c) If You exercise any such termination right You must send an e-mail to iViews, and termination will be effective on the expiry of the notice periods set forth in this paragraph.
9.4 Termination by iViews or Oculo
(a) iViews or Oculo may immediately terminate Your Subscription or the access to the Platform or Services of Your subscriber account and Authorized User accounts without liability to You or any third party if:
(i) You breach this Agreement and do not remedy such breach within thirty (30) days;
(iii) any payment of the applicable Subscription Fee (whether payable on an annual basis or by monthly instalments) remains unpaid for more than 90 days after it becomes due and payable;
(iv) You become insolvent, appoints an administrator or liquidator or enter into receivership; or
(v) for any reason on not less than three (3) months’ prior written notice to You.
(b) We will confirm such termination by e-mail to the e‑mail address recorded in connection with Your subscriber account.
9.5 Effects of Termination
(a) If Your Subscription is terminated or expires:
(i) any amounts owed to iViews under this Agreement before such termination or expiry will be immediately due and payable;
(ii) save for in the instance of a material breach of this Agreement by Us, in which case you will be entitled to a pro-rata portion of any Subscription Fee paid for the period following termination, You will not be entitled to any refund of any prepaid portion of the Subscription Fee and We may recover any amounts owing to Us; and
(iii) Your subscription account and all Authorized User accounts will terminate and all rights, including Your right to access and use the Platform and Services will immediately cease and You must immediately discontinue all use of the Platform and Services and procure that Your Authorized Users do the same.
(b) Subject to section 4.5(d), Oculo will, if requested by You in writing within thirty (30) days after termination or expiry, provide You with a copy of all Data and Content held on the Platform provided by You on Your behalf (including by an Authorized User) or in connection with Your Subscription in portable document format (pdf).
(c) Oculo reserves the right, in its sole discretion, to:
(i) delete Your Data and Content if You have not requested a copy of that Data and Content in accordance with section 4.5(c) within such thirty (30) day period; or
(ii) delay the return of such Data and Content until receipt of all outstanding amounts under this Agreement,
except where doing so would result in a breach of Applicable Laws. The rights conferred on Oculo under this section do not apply to any Data and Content comprised of Protected Health Information, and Oculo will deal with such Data and Content comprising Protected Health Information in accordance with the BAA.
(d) Sections 4.5 (Restrictions on Use), 9.5 (Effects of Termination), 10 (Disclaimer, Limitation of Liability and Indemnity), 11 (Confidentiality), 12 (Proprietary Rights, De-identified Data and Moral Rights), and 17 (General Provisions) will survive expiration or termination of this Agreement for any reason.
10 DISCLAIMER, LIMITATION OF LIABILITY AND INDEMNITY
10.1 Medical Disclaimer
DATA AND CONTENT AVAILABLE ON THE PLATFORM AND THROUGH THE SERVICES IS PROVIDED BY HEALTH CARE PROVIDERS FOR USE BY HEALTH CARE PROVIDERS. OCULO DOES NOT GUARANTEE ITS ACCURACY AND ASSUMES NO LEGAL LIABILITY OR RESPONSIBILITY FOR THE ACCURACY, CURRENCY OR COMPLETENESS OF ANY SUCH DATA AND CONTENT. YOU MUST MAKE YOUR OWN INDEPENDENT ASSESSMENT OF THE CURRENCY, RELEVANCE AND ACCURACY OF ANY DATA AND CONTENT RELATING TO A PATIENT BEFORE ACCESSING OR USING THAT DATA AND CONTENT, MAKING ANY AUTHORIZED REFERRALS OR SUGGESTING A DIAGNOSIS OR RECOMMENDING OR INSTITUTING A COURSE OF TREATMENT FOR THAT PATIENT.
10.2 General Disclaimer
(b) YOUR USE OF THE PLATFORM, SERVICES AND DATA AND CONTENT IS AT YOUR SOLE RISK AND WE RELY ON YOU AND YOUR PROFESSIONAL SKILL AND JUDGEMENT IN YOUR ACCESS TO AND USE OF THE FOREGOING. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWS, YOU EXPRESSLY AGREE THAT, EXCEPT AS OTHERWISE EXPRESSLY AGREED IN WRITING, OCULO EXPRESSLY DISCLAIMS ANY IMPLIED OR EXPRESS REPRESENTATIONS OR WARRANTIES OF ANY KIND RELATING TO THE USE OF THE PLATFORM. WITHOUT LIMITING THE FOREGOING, OCULO ASSUMES NO RESPONSIBILITY FOR, AND MAKE NO WARRANTY OR REPRESENTATION:
(i) AS TO THE ACCURACY, CURRENCY, COMPLETENESS, RELIABILITY OR USEFULNESS OF, ANY INFORMATION OBTAINED THROUGH USE OF THE PLATFORM OR SERVICES (INCLUDING ANY ADVICE, OPINION, STATEMENT OR OTHER CONTENT OR ANY PRODUCTS OR SERVICES DISTRIBUTED OR MADE AVAILABLE BY THIRD PARTIES THROUGH THE PLATFORM);
(ii) THAT YOUR USE OF THE PLATFORM OR SERVICES WILL BE SECURE, TIMELY, AVAILABLE OR UNINTERRUPTED OR THAT ERRORS IN THE PLATFORM OR THE SERVICES WILL BE CORRECTED;
(iii) THAT THE PLATFORM OR SERVICES WILL BE OF MERCHANTABLE QUALITY, FIT FOR A PARTICULAR PURPOSE OR MEET YOUR REQUIREMENTS;
(iv) THAT ANY ACCESS TO, OR USE OF, THE PLATFORM OR SERVICES WILL:
(A) NOT INFRINGE ANY RIGHTS (INCLUDING INTELLECTUAL PROPERTY RIGHTS) OF ANY THIRD PARTY;
(B) BE FREE OF DEFECTS, VIRUSES, OR ANYTHING ELSE (SUCH AS WORMS OR TROJAN HORSES) THAT MAY INTERFERE WITH OR DAMAGE THE OPERATIONS OF A COMPUTER SYSTEM; OR
(C) BE UNINTERRUPTED, BUG FREE OR ERROR FREE.
(c) NEITHER IVIEWS NOR OCULO, ITS ASSOCIATES, NOR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS WILL BE LIABLE TO YOU OR ANYONE ELSE FOR ANY:
(i) INTERFERENCE WITH OR DAMAGE TO YOUR COMPUTER SYSTEM THAT MAY OCCUR IN CONNECTION WITH YOUR USE OF THE PLATFORM, SERVICES OR DATA AND CONTENT;
(ii) TECHNICAL MALFUNCTIONS OF THE UNDERLYING SOFTWARE, EQUIPMENT, SERVICES OR INFRASTRUCTURE, OR ACTS OR OMISSIONS OF YOUR INTERNET SERVICE PROVIDER OR ANY PUBLIC OR PRIVATE TELECOMMUNICATIONS NETWORKS, INCLUDING ANY SYSTEM ERROR, SERVICE OUTAGE, SLOW PERFORMANCE, BANDWIDTH CAPACITY PROBLEMS, UNAUTHORIZED ACCESS, MALWARE OR VIRUSES; OR
(iii) COMBINATION OF THE PLATFORM OR SERVICES WITH ANY GOODS, SERVICES OR OTHER ITEMS PROVIDED BY YOU OR ANY THIRD PARTY, INCLUDING INTEROPERABILITY ISSUES; OR
(iv) DATA, CONTENT, INFORMATION, PRODUCTS OR SERVICES OFFERED BY ANY THIRD PARTY (INCLUDING DATA AND CONTENT SHARED BY ANY OTHER USER) THROUGH THE PLATFORM AND SERVICES.
(d) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM OR THROUGH YOUR USE OF THE PLATFORM OR SERVICES, OR OTHERWISE FROM OCULO, CREATES ANY WARRANTY NOT EXPRESSLY MADE IN THESE SUBSCRIBER TERMS.
10.3 Limitation of liability
(a) TO THE MAXIMUM EXTENT PERMITTED BY LAW, IVIEWS AND OCULO AND THEIR ASSOCIATES EXCLUDE ALL LIABILITY FOR ANY PUNITIVE, SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES OF ANY TYPE OR KIND ARISING FROM, OUT OF OR IN CONNECTION WITH THIS AGREEMENT (INCLUDING, DAMAGES FOR PERSONAL INJURY (INCLUDING VISION IMPAIRMENT OR LOSS), DEATH, MISDIAGNOSIS, DEFAMATION, LOSS OF PROFITS OR REVENUES, BUSINESS INTERRUPTION, LOSS OF PROGRAMS OR OTHER DATA OR COSTS OF REPLACEMENT GOODS, OR OTHERWISE), WHETHER FROM BREACH OF AGREEMENT, NEGLIGENCE, TORT OR ANY OTHER LEGAL CAUSE OF ACTION AND WHETHER OR NOT IVIEWS OR OCULO OR ANY OF THEIR ASSOCIATES HAVE BEEN EXPRESSLY ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES.
(b) SUBJECT TO SECTION 10.3(c), IN NO EVENT WILL THE AGGREGATE LIABILITY OF IVIEWS AND OCULO AND THEIR ASSOCIATES TO YOU IN CONNECTION WITH THIS AGREEMENT, WHETHER SUCH LIABILITY ARISES FROM BREACH OF AGREEMENT, NEGLIGENCE, TORT OR ANY OTHER LEGAL CAUSE OF ACTION, EXCEED THE AMOUNT OF FEES ACTUALLY PAID BY YOU TO IVIEWS UNDER THIS AGREEMENT DURING THE PERIOD OF TWELVE MONTHS PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY.
(c) Nothing in this Subscription Agreement excludes or limits either party's liability for loss in relation to death or personal injury caused by that party's negligence, wilful or reckless misconduct, fraud or fraudulent misrepresentation, in which case, that party's liability will be limited to the greatest extent permitted by Applicable Laws.
You must defend, indemnify, and hold harmless iViews and Oculo and their associates, and each of their respective directors, officers, employees and agents, from and against any claims, losses, liabilities, costs, expenses (including investigative costs, court costs, legal fees, penalties, fines and interest) and damages of any kind whatsoever (including those which are prospective, contingent, indirect or consequential) (Loss) arising out of or in connection with Your Subscription, or Your or Your Authorized User’s use of the Platform, Services and any Data and Content, including in connection with any breach of this Agreement by You or an Authorized User, or any claim that the Data and Content (or any use thereof) uploaded by You or on Your behalf (including by an Authorized User) infringes the Intellectual Property Rights or other rights of a third party or has otherwise caused harm to a third party.
You agree to maintain in confidence all Confidential Information of iViews and Oculo and their associates and not to use or disclose the Confidential Information without the express written consent of iViews and Oculo. You will protect iViews’ and Oculo’s Confidential Information with the same standard of care that You use to protect Your own confidential information, but in no event less than a reasonable degree of care. As used herein, “Confidential Information” means all information (including the existence and subject matter of this Agreement) of a confidential nature in any form or medium that is not publicly available, including without limitation business and technical information relating to iViews and Oculo, their associates, or their customers which is incorporated into or made available through the Platform and Services or any software or other technology contained therein.
12 PROPRIETARY RIGHTS, DE-IDENTIFIED DATA AND MORAL RIGHTS
12.1 Intellectual Property Rights
(a) As between You and iViews and Oculo, You acknowledge and agree that all right, title and interest in and to all Intellectual Property Rights in the Platform and the Services are owned exclusively by iViews and Oculo. You shall not in any way, directly or indirectly, challenge or impair the validity or exclusivity of that ownership of such Intellectual Property Rights or represent that You have any right, title or interest in such Intellectual Property Rights (other than rights to use such Intellectual Property Rights as expressly conferred under this Agreement). All rights not expressly granted to You in this Agreement are reserved by iViews and Oculo.
(b) Nothing in this Agreement shall grant iViews or Oculo any proprietary rights in the trademarks or service marks used by You in connection with Your business and developed independently of Your use of the Platform and Services, or in Data and Content uploaded by You, on Your behalf (including by an Authorized User) or in connection with Your Subscription, other than the rights expressly granted under this Agreement to use the trademarks and service marks as permitted under this Agreement, or otherwise as required to perform iViews’ and Oculo’s obligations under this Agreement.
(c) You grant to iViews and Oculo a non-exclusive, royalty-free, worldwide license during the Term to use the Data and Content uploaded by You or on Your behalf (including by an Authorized User) in any way solely on or in conjunction with the provision of the Platform and the Services to You as contemplated under this Agreement in order to share your Data and Content with other Health Care Practitioners through the Platform and Services as authorized and directed by You.
12.2 De-identified Data
(a) We may generate sets of de-identified, anonymized, and/or aggregated data, as such terms are defined under Applicable Law (including but not limited to “De-identified” as defined under HIPAA), from the Data that You provide to us (De-identified Data).
(b) You acknowledge that Oculo owns all right, title and interest in and to any Intellectual Property Rights that may subsist in any De-identified Data and You acknowledge that We may use such De-identified Data for marketing, research and other commercial purposes including:
(i) aggregating the De-identified Data across all customers for the purpose of analysing the De-identified Data in respect of territories, demographics and conditions, and benchmarking; and
(ii) where permitted by all Applicable Laws, artificial intelligence and machine learning purposes.
(c) To the extent such Intellectual Property Rights are not automatically owned by Oculo, You hereby assign all right, title and interest in such Intellectual Property Rights to Oculo and shall upon request do all things necessary to give effect to such assignment (including execution of appropriate documentation at Oculo’s cost).
12.3 Moral Rights
Upon request by iViews or Oculo, You agree to procure from any author, free from duress or coercion, an absolute and irrevocable waiver of that author’s moral rights in any Data and Content to the extent necessary to allow iViews and Oculo, their licensees, successors and assigns, to incorporate that Data and Content into any De-identified Data in a manner that would otherwise infringe any non-assignable personal moral rights that may subsist in that Data and Content.
13 PUBLICITY AND BRANDING
With Your written permission in each instance (not to be unreasonably withheld) iViews and Oculo may promote its relationship with You in its marketing and promotional activities and otherwise on the Platform or through the Services and You in turn agree to promote iViews and/or Oculo as one of Your key partners. Each party hereby grants to the other a limited, revocable license to undertake such co-branding on terms consistent with a party’s branding guidelines provided to the other party from time to time for the purposes of such co-branding activities.
14 NOTICE OF INAPPROPRIATE USE OR DATA BREACH
(a) If You believe that any Data and Content has been improperly used on the Platform or Services, or that any other person has engaged in any conduct on the Platform or when using the Services which is contrary to this Agreement, including if You have knowledge of or suspect any security incident, potential or actual data breach, or any issue of any kind that may potentially jeopardize Data and Content or the Platform and Services in any way (including in respect of Your Subscription or any account linked to Your Subscription), You must promptly take all steps as are reasonable in the circumstances (including terminating access to the affected account), and notify Us by email addressed to: email@example.com.
(b) The email must set out full details of the incident, issue, claim or conduct and the scope of remedial measures proposed or being undertaken to resolve an incident or issue.
16 FORCE MAJEURE
iViews and Oculo will not be liable for any failure to perform, or any delay in performance of, any act required under this Agreement by reason of: (i) any act of God; (ii) act of nature or other event of whatever nature or whatever reason beyond the reasonable control of the party, including any epidemic or outbreak of pandemic disease, fire, act, decree, legislation, regulations or restrictions of government or state, war, civil commotion, insurrection, embargo, prevention from or hindrance in obtaining raw material, energy or other supplies, impossibility of the use of public or private telecommunications networks, or labor disputes, and performance of such acts shall be excused for the period of such event.
17 GENERAL PROVISIONS
17.1 Governing Law
This Agreement, and any disputes arising out of or in connection with this Agreement, shall be governed by and construed in accordance with the laws of State of Delaware, without reference to its choice of law principles. The parties unconditionally submit to the non-exclusive jurisdiction and venue of the State and Federal courts located in State of Delaware to adjudicate any disputes arising out of or in connection with this Agreement.
17.2 Amendment; Severability
(a) Except as otherwise set forth in this Agreement, iViews or Oculo may modify the terms of this Agreement by notice in writing to You. You will be deemed to have accepted the modified terms of this Agreement unless You give iViews or Oculo written notice of non-acceptance within 30 days of such notice. Your continued use of the Services following the expiration of such thirty (30) day period will constitute Your acceptance of the variation to this Agreement.
(b) In the event that any provision of this Agreement conflicts with Applicable Laws or if any provision is held to be null, void or otherwise ineffective or invalid by a court of competent jurisdiction, such provision shall be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law, and the remaining terms, provisions, covenants and restrictions of this Agreement shall remain in full force and effect.
17.3 Entire Agreement
This Agreement contains the entire understanding and agreement between You and iViews and Oculo regarding the Platform and Services, and supersedes all prior and contemporaneous agreements and understandings between the parties regarding such subject matter.
17.4 Independent Contractors
The parties are independent contractors with respect to each other, and nothing in this Agreement shall be construed as creating an employer-employee relationship, a partnership, agency relationship or a joint venture between the parties.
A notice, demand, consent, approval or communication under this Agreement (Notice) must be:
(a) in writing, in English and signed by a person duly authorized by the sender; and
(b) hand delivered or sent by prepaid post or email to the recipient’s address for Notices provided by the relevant party during the account signup process, as varied by any Notice given by the recipient to the sender.
17.6 Execution; Adoption
This Agreement may be executed or adopted online, or in one or more counterparts which, taken together, shall be regarded as one and the same instrument.
BUSINESS ASSOCIATE AGREEMENT
This Business Associate Agreement (the “BAA”) is entered into by and between You (“Covered Entity”) and CT Operations International USA Inc. of 1209 N Orange St, Wilmington, DE 19801, United States of America (“Business Associate”). Business Associate and Covered Entity are sometimes referred to individually as a “Party” and collectively as the “Parties.” This BAA is effective for the Term of the Subscription Agreement to which it is attached.
WHEREAS, Business Associate has agreed to perform certain data analytics and other Health Care Operations services involving Protected Health Information (“PHI”) on behalf of Covered Entity as further described in the Agreement (the “Services”).
WHEREAS, in connection with performing the Services, Business Associate may be required to access, use, create, receive, maintain, transmit, and/or disclose Covered Entity’s Protected Health Information (“PHI”), as defined under the Health Insurance Portability and Accountability Act of 1996, (“HIPAA”) and the Health Information Technology for Economic and Clinical Health Act (“HITECH Act”), and the final regulations to such Acts that the U.S. Department of Health and Human Services (“HHS”) has promulgated and set forth in 45 CFR Parts 160 and 164 (collectively, the “HIPAA Rules”); and
WHEREAS, to comply with the requirements of the HIPAA Rules, the Parties wish to enter into this BAA.
NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter contained, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, the Parties hereto agree as follows:
1. Definitions. Capitalized terms used but not otherwise defined in this BAA shall have the same meaning as those terms in the HIPAA Rules. A regulatory reference in this BAA means the section as in effect or as amended, and for which compliance is required.
2. Business Associate Obligations.
2.1 Permitted Uses and Disclosures. Business Associate agrees to not use and/or disclose PHI other than as permitted or required by this BAA or as Required by Law. To the extent that Business Associate is to carry out one or more of Covered Entity's obligation(s) under the HIPAA Rules, Business Associate shall comply with the provisions in the HIPAA Rules that would apply to Covered Entity in the performance of such obligation(s). Business Associate may use and disclose PHI created or received pursuant to this BAA as follows:
2.1.1 To perform functions, activities, or services for, or on behalf of, Covered Entity as permitted in this BAA (including to perform the Services), provided that such use or disclosure would not violate 45 C.F.R. Part 164, Subpart E if done by Covered Entity;
2.1.2 For the Business Associate’s proper management and administration or to carry out the Business Associate’s legal responsibilities, provided that, with respect to disclosure of the Covered Entity’s PHI, either:
(i) The disclosure is Required by Law; or
(ii) The Business Associate obtains reasonable assurance from any person or entity to which the Business Associate will disclose the Covered Entity’s Protected Health Information that the person or entity will:
(1) Hold the Covered Entity’s Protected Health Information in confidence and use or further disclose the Covered Entity’s Protected Health Information only for the purpose for which the Business Associate disclosed the Covered Entity’s Protected Health Information to the person or entity or as Required by Law; and
(2) Promptly notify the Business Associate (who will in turn notify the Covered Entity) of any instance of which the person or entity becomes aware in which the confidentiality of the Covered Entity’s Protected Health Information was breached.
2.1.3 To provide Data Aggregation services to Covered Entity as permitted by 45 CFR § 164.504(e)(2)(i)(B), to the extent requested by Covered Entity.
2.1.4 To report violations of law to appropriate Federal authorities consistent with 45 C.F.R 164.502(j)(1), or as otherwise Required By Law.
2.1.5 To create de-identified data consistent with 45 C.F.R 164.514.
2.2 Minimum Necessary. Each party will make reasonable efforts to use, disclose, or request only the minimum necessary PHI to accomplish the intended purpose.
2.3 Safeguards. Business Associate will use reasonable and appropriate safeguards (and, if applicable, comply with 45 CFR subpart C with respect to Electronic Protected Health Information) to prevent the unauthorized use or disclosure of PHI.
2.4 Reporting Requirements. Business Associate shall, without unreasonable delay but in no event later than sixty (60) days, notify Covered Entity of any Breach of Unsecured Protected Health Information, or other use or disclosure not permitted under this BAA, of which Business Associate becomes aware. Business Associate shall report Security Incidents (which may include periodic aggregate reporting of Security Incidents) to Covered Entity within a reasonable amount of time after such Security Incident occurs. Notwithstanding the foregoing, the Parties agree that this BAA serves as notification, and that no further notification is required, of the ongoing existence of Unsuccessful Security Incidents. For purposes of this BAA, an “Unsuccessful Security Incident” shall include, without limitation, activity such as pings and other broadcast attacks on Business Associate’s firewall, port scans, unsuccessful log-on attempts, denial of service, and any combination of the above, so long as such activity does not result in unauthorized access, use, acquisition, or disclosure of PHI.
2.5 Agents and Subcontractors. Business Associate will ensure that any agent or Subcontractor to whom it provides PHI agrees in writing to the same restrictions and conditions that HIPAA requires to apply to Business Associate through this BAA.
2.6 Inspection of Books and Records. Business Associate will make its internal books and records relating to the use and disclosure of PHI available to the Secretary of the U.S. Department of Health of Human Services for the purpose of determining Covered Entity’s compliance with the HIPAA Rules.
2.7 Access. In the event that Business Associate maintains PHI in a Designated Record Set, Business Associate will provide access to PHI to Covered Entity in order to allow Covered Entity to satisfy its obligations under 45 C.F.R. § 164.524.
2.8 Amendment. In the event that Business Associate maintains PHI in a Designated Record Set, Business Associate will make amendments to PHI as directed by Covered Entity in order to allow Covered Entity to satisfy its obligations under 45 CFR § 164.526.
2.9 Accounting of Disclosures. Business Associate will make available to Covered Entity the information required to provide an accounting of disclosures in accordance with 45 C.F.R. § 164.528.
3. Covered Entity Obligations.
3.1 Privacy Notice. Covered Entity will notify Business Associate of any limitations in its Notice of Privacy Practices or other limitations Covered Entity has agreed to the extent that such limitations may affect Business Associate’s use or disclosure of PHI.
3.2 Permissible Requests. Covered Entity shall not request Business Associate to use or disclose PHI in any manner that would not be permissible under the HIPAA Rules if done by Covered Entity.
3.3 Restrictions. Covered Entity shall notify Business Associate of any restrictions in the use or disclosure of PHI from an Individual that Covered Entity has agreed to in accordance with 45 C.F.R 164.522.
4. Term and Termination.
4.1 Term. Upon termination of the BAA, Business Associate shall return or destroy all PHI received from, or created or received by Business Associate on behalf of, Covered Entity that the Business Associate still maintains in any form and retain no copies of such information. If return or destruction of the PHI is not feasible, Business Associate will extend the protections of this BAA to the PHI for so long as Business Associate maintains the PHI and will limit further uses and disclosures of such PHI to the purpose that renders return or destruction infeasible.
4.2 Termination for Cause. In the event that either Party violates a material term of this BAA, the other Party may terminate the BAA provided that non-breaching Party notifies the breaching Party of such breach and provides the breaching Party with an opportunity to cure the breach or end the violation. If such violation is not cured within thirty (30) days, the non-breaching Party may terminate this BAA.
5. Amendment. The Parties agree to take reasonable actions to amend this BAA if amendment is necessary to comply with the HIPAA Rules.
6. Interpretation. Any ambiguity in this BAA shall be resolved in favor of a meaning that permits the Parties to comply with the HIPAA Rules. This BAA shall supersede any previous agreement between the Parties that was entered into for the purpose of protecting PHI.