Version Date: November 1, 2018
The Company Services are hosted in the United States. The Company Services are offered to you subject to your acceptance without modification of the terms, conditions, and notices contained herein.
This Application is intended for use by dental professionals (dentists, dental hygienists, dental lab technicians, and members of the dental support team) and their representatives to communicate with their patients as well as other dental professionals.
YOU ACCEPT AND AGREE TO BE BOUND BY THIS AGREEMENT BY ACKNOWLEDGING SUCH ACCEPTANCE DURING THE REGISTRATION PROCESS (IF APPLICABLE) AND ALSO BY CONTINUING TO USE THE APPLICATION. IF YOU DO NOT AGREE TO ABIDE BY THIS AGREEMENT, OR TO MODIFICATIONS THAT COMPANY MAY MAKE TO THIS AGREEMENT IN THE FUTURE, DO NOT USE OR ACCESS OR CONTINUE TO USE OR ACCESS THE COMPANY SERVICES OR THE APPLICATION.
Regarding Your Registration
By using the Company Services, you represent and warrant that:
a. all registration information you submit is truthful and accurate;
b. you will maintain the accuracy of such information;
c. you will keep your password confidential and will be responsible for all use of your password and account;
d. you are a dental professional or represent a dental professional and you have received permission to use this Application and member account;
e. your use of the Company Services does not violate any applicable law or regulation; and
f. you will not allow direct access to your account to a non-member in order for them to use site functionality.
You also agree to: (a) provide true, accurate, current and complete information about yourself as prompted by the Application’s registration form and (b) maintain and promptly update registration data to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or Company has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Company has the right to suspend or terminate your account and refuse any and all current or future use of the Application (or any portion thereof).
We reserve the right to remove or reclaim a user name you select if we determine appropriate to do so in our sole discretion, such as when the user name is obscene or otherwise objectionable or when a trademark owner complains about a username that does not closely relate to a user's actual name.
Regarding Content You Provide
You are entirely responsible for the content of, and any harm resulting from, your postings to the Application (“User Content”). Without limiting the foregoing obligation, you agree that under no circumstances may any User Content be disseminated in any manner or in any medium, including without limitation the internet, without the informed written consent of the applicable patient in compliance with all relevant patient privacy laws. When you create or make available User Content, you thereby represent and warrant that:
a. the creation, distribution, transmission, public display and performance, accessing, downloading and copying of your User Content does not and will not infringe the proprietary rights, including but not limited to the copyright, patent, trademark, trade secret or moral rights of any third party;
b. you have the written consent, release, and/or permission of each and every identifiable individual person in the User Content to use the name or likeness of each and every such identifiable individual person to enable inclusion and use of the User Content in the manner contemplated by the Application and this Agreement;
c. your User Content will not contain any adult content or sexually explicit material;
d. you are the creator and owner of or have the necessary licenses, rights, consents, releases and permissions to use and to authorize Company and its representatives (e.g. customer service) and anyone whom with content is shared to use your User Content as necessary to exercise the licenses granted by you under this Agreement;
e. your User Content does not contain any viruses, worms, Trojan horses, malicious code or other harmful or destructive content;
f. your User Content is not violent, harassing or otherwise objectionable (as determined by Company), libelous or slanderous, does not advocate the violent overthrow of the government of the United States, does not incite, encourage or threaten immediate physical harm against another, does not violate any applicable law, regulation, or rule, and does not violate the privacy or publicity rights of any third party;
g. your User Content does not contain material that solicits personal information from anyone or exploits anyone in a sexual or violent manner, and does not violate any federal or state law concerning pornography or child pornography or otherwise intended to protect the health or wellbeing of minors;
h. if your employer has rights to intellectual property you create, you have either (i) received permission from your employer to make available the User Content, or (ii) secured from your employer a waiver as to all rights in or to your User Content;
i. your User Content does not violate any state or federal law designed to regulate electronic advertising;
j. your User Content does not amount to trolling, or the making of controversial statements for the sole purpose of generating responses by others;
k. your User Content does not constitute, contain, install or attempt to install or promote spyware, malware or other computer code, whether on Company’s or others’ computers or equipment, designed to enable you or others to gather information about or monitor the online or other activities of another party;
l. your User Content does not inundate the Application with communications or other traffic suggesting no serious intent to use the Application for its stated purpose;
m. your User Content does not otherwise violate, or link to material that violates, any provision of this Agreement or any applicable law or regulation; and
n. your User Content does not contain pictures that are excessive in size, as determined by Company in its sole discretion. And the Application may automatically compress your file size for use in the Application.
USER CONTENT LICENSE
By posting User Content to any part of the Application, you automatically grant, and you represent and warrant that you have the right to grant, to the Company a non-exclusive, transferable, sub-licensable, royalty-free, fully-paid, worldwide license to use, copy, reformat, translate, excerpt (in whole or in part) and distribute such User Content for the sole purpose of performing the Company Services in accordance with any settings you may select. You may remove User Content from the Application at any time, at which time the license granted herein for such User Content shall terminate. Company may retain archived copies of your User Content as part of Company’s standard backup procedures.
Company does not assert any ownership over your User Content; rather, as between us and you, subject to the rights granted to us in this Agreement, you retain full ownership of all of your User Content and any intellectual property rights or other proprietary rights associated with your User Content. Notwithstanding the foregoing, distribution and sharing of your User Content will be subject to the settings you select.
Company has the right, in our sole and absolute discretion, to pre-screen or delete any User Content that is determined to be inappropriate or otherwise in violation of this Agreement.
By uploading your User Content to the Application, you hereby authorize Company to grant to each end user, as indicated by settings that you select, a personal, limited, non-transferable, perpetual, non-exclusive, royalty-free, fully-paid license to access your User Content for their internal purposes and not for distribution, transfer, sale or commercial exploitation of any kind.
DISCLOSURE OF INFORMATION
You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about the Application or the Company Services ("Submissions") provided by you to Company are non-confidential and Company (as well as any designee of Company) shall be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
Company charges membership fees for users to upload User Content. Company bills membership and related fees through an online billing account. You agree to pay Company all charges at the prices then in effect for purchases made by you or other persons using your billing account, and you authorize Company to charge your chosen payment provider for any such purchases. You agree to make payment using that selected payment method. Company reserves the right to correct any errors or mistakes in pricing that it makes even if it has already requested or received payment. Sales tax will be added to the sales price of purchases as deemed required by Company.
Memberships are billed on a recurring basis and charges will accordingly accrue on a recurring basis. Such recurring orders will be automatically extended for successive renewal periods of the same duration as the original membership term selected, at the then-current non-promotional fee. Therefore, Company will submit periodic charges (e.g., monthly, quarterly, annually, etc.) without further authorization from you, until you provide prior notice that you have terminated this authorization or wish to change your payment method. Such notice will not affect charges submitted before Company reasonably could act.
DATES OF PAYMENTS
When initial manual payment is made on 31st: the following automatic payment is made on the last day of month: 30th. And the consequent automatic payments will be made on 30th of each month as well. This applies to payment periods: monthly and 3-month; this does not apply to packages of 6-month or 12-month.
When initial manual payment is made on January 29, 30, 31 then the following automatic payment is made on the last day of February: 28 (leap year – 29). And the consequent payments will be made on 28 (29 respectively) of each month as well. This applies to monthly plans only.
PACKAGE DURATION AND ADDITIONAL USERS
A longer Payment Period may have possible advantages: A) Discount of monthly price to be determined at the time of purchase; B) Lower cost for additional Users.
Each package includes a specific number of Users that can access that account. Additional users can be added or removed from the account at any time. User amount in excess of the number included per license gets charged 1 time per package period of time. For example, if you are on a monthly plan and you add an additional user license you will pay a fee each month for that user for a total of twelve additional user payments over the twelve months; but it you are on an annual plan you will pay for that user only once during the twelve month period.
PACKAGE PRICING AND DISCOUNTS
1. Compensation Amount is calculated from Actual Paid Amount (Package and Users - respectively); Actual Paid Amount = (Amount to be charged) - (Discount Amount).
2. When Discount amount is larger than Payment amount to which it applies: Payment amount becomes "0" (zero), and remainder of the Discount does not get accumulated
3. When downgrading a Package or downgrading Payment Period: only those Payment Periods are available which cost more than the Compensation Amount (on current date). See Return and Refund Policy.
You may terminate your authorization (membership) at any time. To change your payment method, go to your account settings. To terminate your authorization contact PreVu customer support at least one full business day prior to upcoming payment date, as shown in your account settings. The termination will take effect upon expiration of the paid-up membership. Company will not provide refunds for periodic charges already charged to you prior to termination of your authorization taking effect. User agrees not to initiate any charge-back on said credit card account for past services or pre-paid accounts.
You must provide current, complete and accurate information for your billing account. You must promptly update all information to keep your billing account current, complete and accurate (such as a change in billing address, credit card number, or credit card expiration date), and you must promptly notify Company if your payment method is canceled (e.g., for loss or theft). Changes to such information can be made at your account settings.
The Company reserves the right to deny access to User content when packages expires and the renewal payment was not successful received by the Company. In this event, the account will be considered inactive and automatically downgrade to a demo account. Users can upgrade at any time to access their user content by providing current billing information and purchasing a package. The Company reserves the right to permanently delete User Content on inactive accounts after 6 months of inactivity.
One purchased license covers only one practice location. In order to use the software on multiple locations you have to purchase multiple licenses. Please contact customer support to see if you are eligible for multi-location discounts. Company reserves the right to cancel, without refund, any account that is using one license at multiple locations.
RETURN AND REFUND POLICY
There are no returns or refunds for purchases of services from Company.
When upgrading/downgrading a Package or Payment Period in the middle of billing cycle: only those Payment Periods are available which cost more than the Compensation Amount as of the current date.
You may not access or use the Application for any other purpose other than that for which Company makes it available. Prohibited activity includes, but is not limited to:
a. criminal or tortious activity, including child pornography, fraud, trafficking in obscene material, drug dealing, gambling, harassment, stalking, spamming, copyright infringement, patent infringement, or theft of trade secrets;
b. advertising to, or solicitation of, any user to buy or sell any products or services, unless authorized by Company;
c. systematic retrieval of data or other content from the Application to create or compile, directly or indirectly, a collection, compilation, database or directory without written permission from Company;
d. making any unauthorized use of the Company Services, including collecting usernames and/or email addresses of users by electronic or other means for the purpose of sending unsolicited email;
e. disguising the origin of any information or inquiry transmitted through the Application;
f. engaging in multi-level marketing (such as a pyramid scheme);
g. offering any contest, giveaway or sweepstakes without Company’s prior written consent;
h. posting anyone’s identification documents or sensitive financial information;
i. engaging in unauthorized framing of or linking to the Application;
j. transmitting chain letters or junk email to other users;
k. using any information obtained from the Application in order to contact, advertise to, solicit, or sell to any user without their prior explicit consent;
l. engaging in any automated use of the system, such as using scripts to add Contacts or send comments or messages, or using any data mining, robots or similar data gathering and extraction tools;
m. interfering with, disrupting, or creating an undue burden on the Application or the networks or services connected to the Application;
n. attempting to impersonate another user or person;
o. using the username of another user;
p. selling or otherwise transferring your profile;
q. using any information obtained from the Application in order to harass, abuse, or harm another person;
r. using the Company Service as part of any effort to compete with Company or to provide services as a service bureau;
s. deciphering, decompiling, disassembling or reverse engineering any of the software comprising or in any way making up a part of the Application;
t. attempting to bypass any measures of the Application designed to prevent or restrict access to the Application, or any portion of the Application;
u. harassing, annoying, intimidating or threatening any Company employees or agents engaged in providing any portion of the Company Services to you;
v. displaying an advertisement, or accepting payment or anything of value from a third person in exchange for your performing any commercial activity on or through the Application on behalf of that person, such as posting blogs or bulletins with a commercial purpose;
w. deleting the copyright or other proprietary rights notice from any User Content or Company Content; and
x. using the Application in a manner inconsistent with any and all applicable laws and regulations.
INTELLECTUAL PROPERTY RIGHTS
The content on the Application (“Company Content”) and the trademarks, service marks and logos contained therein (“Marks”) are owned by or licensed to Company, and are subject to copyright and other intellectual property rights under United States and foreign laws and international conventions. Company Content, includes, without limitation, all source code, databases, functionality, software, Application designs, audio, video, text, photographs and graphics. All Company graphics, logos, designs, page headers, button icons, scripts and service names are registered trademarks, common law trademarks or trade dress of Company in the U.S. and/or other countries. Company's trademarks and trade dress may not be used, including as part of trademarks and/or as part of domain names, in connection with any product or service in any manner that is likely to cause confusion and may not be copied, imitated, or used, in whole or in part, without the prior written permission of the Company.
Company Content on the Application is provided to you “AS IS” for your information and personal use only and may not be used, copied, reproduced, aggregated, distributed, transmitted, broadcast, displayed, sold, licensed, or otherwise exploited for any other purposes whatsoever without the prior written consent of the respective owners. Systematic retrieval of data or other content from the Application to create or compile, directly or indirectly, a collection, compilation, database or directory without written permission from Company is prohibited. Provided that you are eligible to use the Application, you are granted a limited license to access and use the Application and the Company Content and to download or print a copy of any portion of the Company Content to which you have properly gained access solely for your personal, non-commercial use. Company reserves all rights not expressly granted to you in and to the Application and Company Content and Marks. If you download or print a copy of the Company Content for personal use, you must retain all copyright and other proprietary notices contained therein. You agree not to circumvent, disable or otherwise interfere with security related features of the Application or features that prevent or restrict use or copying of any Company Content or enforce limitations on use of the Application or the Company Content therein. The use and access rights granted herein do not include any right to use of data mining, robots, spiders or similar data gathering and extraction tools without our prior written permission.
THIRD PARTY APPLICATIONS AND CONTENT
The Application contains (or you may be sent through the Application or the Company Service) links to other Applications ("Third Party Applications") as well as articles, photographs, text, graphics, pictures, designs, music, sound, video, information, applications, software and other content or items belonging to or originating from third parties (the "Third Party Content"). Such Third Party Applications and Third Party Content are not investigated, monitored or checked for accuracy, appropriateness, or completeness by us, and we are not responsible for any Third Party Applications accessed through the Application or any Third Party Content posted on, available through or installed from the Application, including the content, accuracy, offensiveness, opinions, reliability, privacy practices or other policies of or contained in the Third Party Applications or the Third Party Content. Inclusion of, linking to or permitting the use or installation of any Third Party Application or any Third Party Content does not imply approval or endorsement thereof by us. If you decide to leave the Application and access the Third Party Applications or to use or install any Third Party Content, you do so at your own risk and you should be aware that our terms and policies no longer govern. You should review the applicable terms and policies, including privacy and data gathering practices, of any Application to which you navigate from the Application or relating to any applications you use or install from the Application. Any purchases you make through Third Party Applications will be through other Applications and from other companies and Company takes no responsibility whatsoever in relation to such purchases which are exclusively between you and the applicable third party.
SITE & SOFTWARE MANAGEMENT
Company reserves the right but does not have the obligation to:
a. monitor the Application for violations of this Agreement;
b. take appropriate legal action against anyone who, in Company’s sole discretion, violates this Agreement, including without limitation, reporting such user to law enforcement authorities;
c. in Company’s sole discretion and without limitation, refuse, restrict access to or availability of, or disable (to the extent technologically feasible) any user’s User Content or any portion thereof that may violate this Agreement or any Company policy;
d. in Company’s sole discretion and without limitation, notice or liability to remove from the Application or otherwise disable all files and content that are excessive in size or are in any way burdensome to Company’s systems;
e. terminate users who are deemed to be inactive;
f. terminate the accounts of repeat infringers; and
g. otherwise manage the Application in a manner designed to protect the rights and property of Company and others and to facilitate the proper functioning of the Application;
h. Periodically, PreVu software will force automatic updates to the most recent version of PreVu to be installed on user computer. This will only be when the newest version is no longer compatible with the version detected on the user computer. In all other cases user will have the option to skip the updates. Typically periodic PreVu update takes less than 1 minute to download.
i. PreVu will conduct regularly scheduled maintenance hours within which the Application may stop working for short period of time. The maintenance hours will typically be Monday-Tuesday, 4:00 – 5:00 AM EST, although a different time may be scheduled based on need.
Company sends email notification about main changes of account. These notifications contain useful information in order to help you use PreVu.
For your reference Company sends email notifications upon each successful or failed payment. You reserve the right to unsubscribe from such notifications at any time.
TERM AND TERMINATION
This Agreement shall remain in full force and effect while you use the Application or are otherwise a user or member of the Application, as applicable. You may terminate your use or participation at any time, for any reason, by following the instructions for terminating user accounts in your account settings.
WITHOUT LIMITING ANY OTHER PROVISION OF THIS AGREEMENT, COMPANY RESERVES THE RIGHT TO, IN COMPANY’S SOLE DISCRETION AND WITHOUT NOTICE OR LIABILITY, DENY ACCESS TO AND USE OF THE APPLICATION AND THE COMPANY SERVICES, TO ANY PERSON FOR ANY REASON OR FOR NO REASON AT ALL, INCLUDING WITHOUT LIMITATION FOR BREACH OF ANY REPRESENTATION, WARRANTY OR COVENANT CONTAINED IN THIS AGREEMENT, OR OF ANY APPLICABLE LAW OR REGULATION, AND COMPANY MAY TERMINATE YOUR USE OR PARTICIPATION IN THE APPLICATION AND THE COMPANY SERVICES, DELETE YOUR PROFILE AND ANY CONTENT OR INFORMATION THAT YOU HAVE POSTED AT ANY TIME, WITHOUT WARNING, IN COMPANY’S SOLE DISCRETION.
In order to protect the integrity of the Application and Company Services, Company reserves the right at any time in its sole discretion to block certain IP addresses from accessing the Application Company Services.
Any provisions of this Agreement that, in order to fulfill the purposes of such provisions, need to survive the termination or expiration of this Agreement, shall be deemed to survive for as long as necessary to fulfill such purposes.
YOU UNDERSTAND THAT CERTAIN STATES ALLOW YOU TO CANCEL THIS AGREEMENT, WITHOUT ANY PENALTY OR OBLIGATION, AT ANY TIME PRIOR TO MIDNIGHT OF COMPANY’S THIRD BUSINESS DAY FOLLOWING THE DATE OF THIS AGREEMENT, EXCLUDING SUNDAYS AND HOLIDAYS. TO CANCEL, USE THE CONTACT INFORMATION LISTING BELOW IN THIS AGREEMENT OR BY ACCESSING YOUR ACCOUNT SETTINGS. THIS SECTION APPLIES ONLY TO INDIVIDUALS RESIDING IN STATES WITH SUCH LAWS.
Company may modify this Agreement from time to time. Any and all changes to this Agreement will be posted on the Application and revisions will be indicated by date. You agree to be bound to any changes to this Agreement when you use the Company Services after any such modification becomes effective. Company may also, in its discretion, choose to alert all users with whom it maintains email information of such modifications by means of an email to their most recently provided email address. It is therefore important that you regularly review this Agreement and keep your contact information current in your account settings to ensure you are informed of changes. Modifications to this Agreement shall be effective five (5) business days after posting. Additionally, modifications made to this Agreement applicable to dispute resolution shall not apply to disputes arising prior to the effective date of the modification.
Company reserves the right at any time to modify or discontinue, temporarily or permanently, the Company Services (or any part thereof) with or without notice. You agree that Company shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Company Services, including deletion of all User Content.
A user can be defined as the party that generates the cosmetic simulation or anyone that the simulation is shared with either directly or indirectly. If there is a dispute between users of the Application, or between users and any third party, you understand and agree that Company is under no obligation to become involved. In the event that you have a dispute with one or more other users, you hereby release Company, its officers, employees, agents and successors in rights from claims, demands and damages (actual and consequential) of every kind or nature, known or unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way related to such disputes and/or the Company Services.
All questions of law, rights, and remedies regarding any act, event or occurrence undertaken pursuant or relating to this Application or the Company Services shall be governed and construed by the law of the State of Florida, excluding such state’s conflicts of law rules. Any legal action of whatever nature by or against Company arising out of or related in any respect to this Application and the Company Services shall be brought solely in either the applicable federal or state courts located in or with jurisdiction over Broward County, Florida; subject, however, to the right of Company, at the Company's sole discretion, to bring an action to seek injunctive relief to enforce this Agreement or to stop or prevent an infringement of proprietary or other third party rights (or any similar cause of action) in any applicable court in any jurisdiction where jurisdiction exists with regard to a user. You hereby consent to (and waive any challenge or objection to) personal jurisdiction and venue in the above-referenced courts. Application of the United Nations Convention on Contracts for the International Sale of Goods is excluded from this Agreement. Additionally, application of the Uniform Computer Information Transaction Act (UCITA) is excluded from this Agreement. In no event shall any claim, action or proceeding by you related in any way to the Application and/or the Company Service (including your visit to or use of the Application and/or the Company Service) be instituted more than two (2) years after the cause of action arose.
Occasionally there may be information on the Application that contains typographical errors, inaccuracies or omissions that may relate to service descriptions, pricing, availability, and various other information. Company reserves the right to correct any errors, inaccuracies or omissions and to change or update the information at any time, without prior notice.
Company cannot control the nature of all of the content available on the Application. By operating the Application, Company does not represent or imply that Company endorses any blogs, User Content or other content available on or linked to by the Application, including without limitation content hosted on third party Applications or provided by third party applications, or that Company believes User Content, blogs or other content to be accurate, useful or non-harmful. We do not control and are not responsible for unlawful or otherwise objectionable content you may encounter on the Application or in connection with any User Content. Company is not responsible for the conduct, whether online or offline, of any user of the Application or Company Services.
The Company offers the ability to create treatment simulations through the graphic manipulation of a person’s photograph. By definition, a simulation is an imitation or representation of the anticipated treatment outcome and not the actual result. The Company has no control over the simulation or treatment process and has no responsibility for the performance or the outcome of the treatment and does not guarantee that the simulation will reflect the final treatment outcome. Patients and other third parties receiving simulations must be given all necessary information so that they have accurate expectations for the final treatment outcome. Users agree to include appropriate disclaimer on each simulated photo.
The Company does not guarantee the Service will be operable at all times or during any down time (1) caused by outages to any public Internet backbones, networks or servers, (2) caused by any failures of Your equipment, systems or local access services, (3) for previously scheduled maintenance or (4) relating to events beyond the Company’s control such as strikes, riots, insurrection, fires, floods, explosions, war, governmental action, labor conditions, earthquakes, natural disasters, or interruptions in Internet services to an area where the Company or Your servers are located or co-located. Company does not guarantee a specific response time to resolve technical issues. Users that are having trouble accessing or using the Application should contact Company via email at firstname.lastname@example.org
YOU AGREE THAT YOUR USE OF THE APPLICATION AND COMPANY SERVICES WILL BE AT YOUR SOLE RISK. WHILE COMPANY HAS PROVIDED VARIOUS FEATURES REASONABLY DESIGNED TO PROTECT USER CONTENT, COMPANY DOES NOT WARRANT THAT SUCH FEATURES CANNOT BE CIRCUMVENTED OR THAT THEY DO NOT OR WILL NOT CONTAIN ANY SECURITY OR OTHER FLAWS.
TO THE FULLEST EXTENT PERMITTED BY LAW, COMPANY, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE APPLICATION AND THE COMPANY SERVICES AND YOUR USE THEREOF, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. COMPANY MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE APPLICATION’S CONTENT OR THE CONTENT OF ANY APPLICATIONS LINKED TO THIS APPLICATION AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (A) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT AND MATERIALS, (B) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF OUR APPLICATION, (C) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (D) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE APPLICATION, (E) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE APPLICATION BY ANY THIRD PARTY, AND/OR (F) ANY ERRORS OR OMISSIONS IN ANY CONTENT AND MATERIALS OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE APPLICATION. COMPANY DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE APPLICATION OR ANY HYPERLINKED APPLICATION OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND COMPANY WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. AS WITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE.
The Company reserves the right to change any and all content, software and other items used or contained in the Application and any Company Services offered through the Application at any time without notice.
LIMITATIONS OF LIABILITY
IN NO EVENT SHALL COMPANY OR ITS DIRECTORS, EMPLOYEES, OR AGENTS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING DAMAGE TO REPUTATION AND LOST PROFIT DAMAGES ARISING FROM YOUR USE OF THE APPLICATION OR COMPANY SERVICES, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, COMPANY’S LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE GREATER OF THE AMOUNT PAID, IF ANY, BY YOU TO COMPANY FOR THE COMPANY SERVICES DURING THE PERIOD OF 3 MONTHS PRIOR TO ANY CAUSE OF ACTION ARISING AND $50.
CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR."
You agree to defend, indemnify and hold Company, its subsidiaries, and affiliates, and their respective officers, agents, partners and employees, harmless from and against, any loss, damage, liability, claim, or demand, including reasonable attorneys’ fees and expenses, made by any third party due to or arising out of your User Content, use of the Company Services, and/or arising from a breach of this Agreement and/or any breach of your representations and warranties set forth above. Notwithstanding the foregoing, Company reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Company, and you agree to cooperate, at your expense, with Company’s defense of such claims. Company will use reasonable efforts to notify you of any such claim, action, or proceeding which is subject to this indemnification upon becoming aware of it.
From time to time, Company may conduct sweepstakes that entitle the winners to prizes. Each sweepstakes has its own terms and conditions, set forth in the official rules for that sweepstakes.
Except as explicitly stated otherwise, any notices given to Company shall be given by email to email@example.com. Any notices given to you shall be given to the email address you provided during the registration process, or such other address as each party may specify. Notice shall be deemed to be given 24 hours after the email is sent, unless the sending party is notified that the email address is invalid. We may also choose to send notices by regular mail to the mailing address on file for the admin user on the account.
U.S. EXPORT CONTROLS
Software from this Application is further subject to United States export controls. No software may be downloaded from the Application or otherwise exported or re-exported (i) into (or to a national or resident of) Cuba, Iraq, Libya, North Korea, Iran, Syria, or any other Country to which the U.S. has embargoed goods; or (ii) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Deny Orders. By downloading or using software, you represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list.
This Agreement constitutes the entire agreement between you and Company regarding the use of the Company Services. The failure of Company to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. The section titles in this Agreement are for convenience only and have no legal or contractual effect. This Agreement operates to the fullest extent permissible by law. This Agreement and your account may not be assigned by you without our express written consent. Company may assign any or all of its rights and obligations to others at any time. Company shall not be responsible or liable for any loss, damage, delay or failure to act caused by any cause beyond Company's reasonable control. If any provision or part of a provision of this Agreement is unlawful, void or unenforceable, that provision or part of the provision is deemed severable from this Agreement and does not affect the validity and enforceability of any remaining provisions.
BUSINESS ASSOCIATE ADDENDUM
The following terms shall have the meaning set forth below. Capitalized terms used in this BAA and not otherwise defined shall have the meanings ascribed to them in HIPAA, the HIPAA Regulations, or the HITECH Act, as applicable.
“BAA” means this Business Associate Addendum.
“Breach” shall have the meaning given under 45 C.F.R. § 164.402.
“Business Associate” means PREVU to the extent that it receives PHI from Covered Entity in connection with the Underlying Agreement.
“Covered entity” means Members
“Designated Record Set” shall have the meaning given such term under 45 C.F.R. § 164.501.
“Disclose” and “Disclosure” mean, with respect to PHI, the release, transfer, provision of access to, or divulging in any other manner of PHI outside of Business Associate or to other than members of its Workforce, as set forth in 45 C.F.R. § 160.103.
“Electronic PHI” or “e-PHI” means PHI that is transmitted or maintained in electronic media, as set forth in 45 C.F.R. § 160.103.
“Protected Health Information” and “PHI” mean any information, whether oral or recorded in any form or medium, that: (a) relates to the past, present or future physical or mental health or condition of an individual; the provision of health care to an individual, or the past, present or future payment for the provision of health care to an individual; (b) identifies the individual (or for which there is a reasonable basis for believing that the information can be used to identify the individual); and (c) shall have the meaning given to such term under the Privacy Rule, including, but not limited to, 45 C.F.R. § 160.103. Protected Health Information includes e-PHI.
“Security Incident” shall have the meaning given to such term under 45 C.F.R. § 164.304.
“Services” shall mean the services for or functions on behalf of Members performed by PREVU pursuant to the Terms of Service Agreement (“Underlying Agreement”).
“Unsecured PHI” shall have the meaning given to such term under 42 U.S.C. § 17932(h), 45 C.F.R. § 164.402, and guidance issued pursuant to the HITECH Act including, but not limited to the guidance issued on April 17, 2009 and published in 74 Federal Register 19006 (April 27, 2009) by the Secretary.
“Use” or “Uses” mean, with respect to PHI, the sharing, employment, application, utilization, examination or analysis of such PHI within Business Associate’s internal operations, as set forth in 45 C.F.R. § 160.103.
Obligations of Business Associate
Permitted Uses and Disclosures of Protected Health Information. Business Associate shall not Use or Disclose PHI other than as permitted or required by any Underlying Agreement, this BAA, or as Required by Law. Business Associate shall not Use or Disclose PHI in any manner that would constitute a violation of Subpart E of 45 C.F.R. Part 164 if so Used or Disclosed by Covered Entity, except that Business Associate may Use or Disclose PHI (i) for the proper management and administration of Business Associate; or (ii) to carry out the legal responsibilities of Business Associate, provided that with respect to any such Disclosure either: (a) the Disclosure is Required by Law; or (b) Business Associate obtains a written agreement from the person to whom the PHI is to be Disclosed that such person will hold the PHI in confidence and shall not Use and further Disclose such PHI except as Required by Law and for the purpose(s) for which it was Disclosed by Business Associate to such person, and that such person will notify Business Associate of any instances of which it is aware in which the confidentiality of the PHI has been breached. Business Associate is not authorized to aggregate the data or to Use the PHI to create de-identified information. To the extent that Business Associate carries out one or more of Covered Entity’s obligations under Subpart E of 45 C.F.R. Part 164, Business Associate must comply with the requirements of Subpart E that apply to the Covered Entity in the performance of such obligations.
Adequate Safeguards of PHI. Business Associate shall implement and maintain appropriate safeguards to prevent Use or Disclosure of PHI other than as provided for by this BAA. Business Associate shall reasonably and appropriately protect the confidentially, integrity, and availability of e-PHI that it creates, receives, maintains or transmits on behalf of Covered Entity in compliance with Subpart C of 45 C.F.R. Part 164 to prevent Use or Disclosure of PHI other than as provided for by this BAA.
Mitigation. Business Associate agrees to mitigate, to the extent practicable, any harmful effect that is known to Business Associate of a Use or Disclosure of PHI by Business Associate in violation of the requirements of this BAA.
Reporting Security Incidents and Non-Permitted Use or Disclosure. Business Associate shall report to Covered Entity in writing each Security Incident or Use or Disclosure that is made by Business Associate, members of its Workforce, or agents or subcontractors that is not specifically permitted by this BAA no later than three (3) business days after becoming aware of such Security Incident or non-permitted Use or Disclosure, in accordance with the notice provisions set forth herein. Business Associate shall investigate each Security Incident or non-permitted Use or Disclosure of Covered Entity’s PHI that it discovers to determine whether such Security Incident or non-permitted Use or Disclosure constitutes a reportable Breach of Unsecured PHI. Business Associate shall document and retain records of its investigation of any Breach, including its reports to Covered Entity under this Section 3.(d)(i). Upon request of Covered Entity, Business Associate shall furnish to Covered Entity the documentation of its investigation and an assessment of whether such Security Incident or non-permitted Use or Disclosure constitutes a reportable Breach. If such Security Incident or non-permitted Use or Disclosure constitutes a reportable Breach of Unsecured PHI, then Business Associate shall comply with the additional requirements of Section 2.(d)(ii) below.
Breach of Unsecured PHI. If Business Associate determines that a reportable Breach of Unsecured PHI has occurred, Business Associate shall provide a written report to Covered Entity without unreasonable delay but no later than thirty (30) calendar days after discovery of the Breach. To the extent that information is available to Business Associate, Business Associate’s written report to Covered Entity shall be in accordance with 45 C.F.R. §164.410(c). Business Associate shall notify individuals, the Secretary, and the media, as applicable, of any Breach of Unsecured PHI, and shall take steps to mitigate the Breach, in accordance with Subpart D of Part 164. Business Associate shall be responsible for the costs and expenses in providing the notification, including, but not limited to, any administrative costs associated with providing notice, printing and mailing costs, and costs of mitigating the harm (which may include the costs of obtaining credit monitoring services and identity theft insurance) for affected individuals whose PHI has or may have been compromised as a result of the Breach.
Availability of Internal Practices, Books, and Records to Government. Business Associate agrees to make its internal practices, books and records relating to the Use and Disclosure of PHI received from, or created or received by the Business Associate on behalf of Covered Entity available to the Secretary for purposes of determining Covered Entity’s compliance with HIPAA, the HIPAA Regulations, and the HITECH Act.
Access to Protected Health Information. Business Associate shall make the PHI it maintains promptly available to an individual, as required by 45 C.F.R. § 164.524. If Business Associate maintains an Electronic Health Record, Business Associate shall provide such information in the electronic form and format requested by the individual if it is readily reproducible in such form and format, and, if not, in such other form and format agreed in accordance with 45 C.F.R. § 164.524(c)(2).
Accounting. Business Associate shall make available to Covered Entity the information required to provide an accounting of disclosures to enable Covered Entity to fulfill its obligations under 45 C.F.R. § 164.528.
Use of Subcontractors and Agents. Business Associate shall require each of its agents and subcontractors that creates, maintains, receives, or transmits PHI on behalf of Business Associate, to execute a Business Associate Agreement that imposes on such agents and subcontractors the same restrictions, conditions, and requirements that apply to Business Associate under this BAA with respect to PHI.
Minimum Necessary. Business Associate (and its agents or subcontractors) shall, to the extent practicable, limits its request, Use, or Disclosure of PHI to the minimum amount of PHI necessary to accomplish the purpose of the request, Use or Disclosure, in accordance with 42 U.S.C. § 17935(b) and 45 C.F.R. § 164.502(b)(1) or any other guidance issued thereunder and the Covered Entity’s minimum necessary policies.
Term and Termination
Term. Subject to the provisions of Section 3.(b), the term of this BAA shall be the term of any Underlying Agreement.
Termination for Cause. In addition to and notwithstanding the termination provisions set forth in any Underlying Agreement, upon Covered Entity’s knowledge of a material breach or violation of this BAA by Business Associate, Covered Entity shall either:
(i) Notify Business Associate of the breach in writing, and provide an opportunity for Business Associate to cure the breach or end the violation within ten (10) business days of such notification; provided that if Business Associate fails to cure the breach or end the violation within such time period to the satisfaction of Covered Entity, Covered Entity may immediately terminate this BAA and any Underlying Agreement upon written notice to Business Associate; or
(ii) Upon written notice to Business Associate, immediately terminate this BAA and any Underlying Agreement if Covered Entity determines that such breach cannot be cured
Disposition of Protected Health Information Upon Termination or Expiration.
(i) Upon termination or expiration of this BAA, Business Associate shall destroy all PHI received from, or created or received by Business Associate on behalf of Covered Entity, that Business Associate still maintains in any form and retain no copies of such PHI, provided that Business Associate shall have the right to copy any of the Medical Records then in their custody, at their own expense to the extent permitted by law and the terms of the Underlying Agreement, or if this BAA is terminated earlier for any reason, return to Covered Entity the physical custody of the PHI in accordance with the terms of the Underlying Agreement
Amendment to Comply with Law. This BAA shall be deemed amended to incorporate any mandatory obligations of Covered Entity or Business Associate under the HITECH Act and its implementing HIPAA Regulations. Additionally, the Parties agree to take such action as is necessary to amend this BAA from time to time as necessary for Covered Entity to implement its obligations pursuant to HIPAA, the HIPAA Regulations, or the HITECH Act.
Relationship to Underlying Agreement Provisions. In the event that a provision of this BAA is contrary to a provision of an Underlying Agreement, the provision of this BAA shall control. Otherwise, this BAA shall be construed under, and in accordance with, the terms of such Underlying Agreement, and shall be considered an amendment of and supplement to such Underlying Agreement, subject to Section 4(c) below.
Relationship of Parties. Notwithstanding anything to the contrary in any Underlying Agreement, Business Associate is an independent contractor and not an agent of Covered Entity under this BAA. Business Associate has the sole right and obligation to supervise, manage, contract, direct, procure, perform or cause to be performed all Business Associate obligations under this BAA.
Survival. The obligations of Business Associate under Section 3 shall survive termination of this BAA or the Underlying Agreement.
In order to resolve a complaint regarding the Company Services or to receive further information regarding use of the Company Services, please contact Company as set forth below or, if any complaint with us is not satisfactorily resolved, and you are a California resident, you can contact the Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs in writing at 400 "R" Street, Sacramento, California 95814 or by telephone at 1-916-445-1254.
PreVu Software LLC
3500 Galt Ocean Drive, Suite 101
Ft. Lauderdale, FL 33308