Terms & Conditions

Equipment and Software Terms and Conditions

1. License of Software

Virtual Field has rights to a proprietary software as a services (SaaS) solution related to visual field testing (“Software”), which you wish to license for your use. Subject to the terms and conditions of this Agreement and in consideration for the Fees, Virtual Field grants you a non-transferable, sublicensable, and non-exclusive license to use the Software during the Term of this Agreement.

1. 1.1 Technical Support. Virtual Field will provide technical support to you through calls placed to 1 (858) 208-0074 (press 2) from 9AM–5PM EST, Monday–Friday. Where appropriate, Virtual Field may, in its sole discretion, utilize subcontractors to perform its services, provided they are subject to a written confidentiality requirement and represent that they have the relevant skills and know-how to perform such services.
2. 1.2 Reservations. All rights under this Agreement not expressly granted to you are reserved to Virtual Field. You shall not use the Software or the documentation in any way not expressly authorized in this Agreement.
3. 1.3 Your Obligations. In order to ensure Virtual Field can provide you with access to the Software, you shall (i) cooperate with Virtual Field in all matters relating to the Software and Equipment; (ii) respond promptly to any Virtual Field request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for Virtual Field to perform services related to the Software and Equipment in accordance with the requirements of this Agreement; (iii) provide such customer materials or information as Virtual Field may reasonably request to provide the Software and Equipment; and (iv) obtain and maintain all necessary licenses and consents and comply with all applicable laws in relation to the Software and Equipment.

2. Use Restrictions

2.1 Prohibited Uses

You may use the Software and Equipment only for lawful purposes and in accordance with this Agreement. You agree not to:

1. 2.1.1. Remove any proprietary notices or labels on the Software or Equipment;
2. 2.1.2. Circumvent any technological measure that controls access to the Software;
3. 2.1.3. Replicate, or have third parties replicate, the methodologies or structures of the Software;
4. 2.1.4. Use the Software and Equipment or any data, results, or insights gained through your use of the Software and Equipment, to develop a competing software product, or share with competitors or potential competitors of Virtual Field;
5. 2.1.5. Violate any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the US or other countries);
6. 2.1.6. Make the Software and Equipment publicly available, create derivative works (including translating), reverse engineer, decompile, transfer, sell, resell, lease, license, or otherwise make available to any unauthorized party the Software and Equipment, or a copy or portion of the Software and Equipment to any unauthorized party, including a subsidiary, affiliate, or other legal entity, however designated, for any purpose whatsoever except as expressly permitted under this Agreement;
7. 2.1.7. Engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Software and Equipment, or which, as determined by us, may harm Virtual Field or users of the Software and Equipment, or expose them to liability; and
8. 2.1.8. Use the Software and Equipment or the results produced by the Software and Equipment as the sole or primary basis for medical treatment or as a substitute for the medical judgment of a physician or qualified health care provider.

We have the right to take appropriate legal action, including without limitation, referral to law enforcement for any illegal or unauthorized use of the Software and Equipment and/or terminate or suspend your access to all or part of the Software and Equipment for any violation of this Agreement. Your use of the Software and Equipment in violation of this Agreement shall void any warranty and/or access to technical support from Virtual Field.

2.2 Disclosure of Findings

You agree not to disclose or publish your findings, listings, or information derived from your use of the Software and Equipment (collectively, “Findings”) without Virtual Field’s prior written approval. You shall provide Virtual Field with a copy of any proposed publication or other disclosure of your Findings at least thirty (30) days prior to the earlier of proposed publication or submission to a third party for possible publication for our approval, which approval we may withhold in its sole discretion. Virtual Field may condition its approval on the inclusion of a credit line in a form determined by us or restrictions on references to Virtual Field. You hereby grant to Virtual Field a perpetual, worldwide, royalty-free, paid-up non-exclusive license in all fields of use to your Findings for our internal research purposes. Your obligations under this Section shall survive the termination of this Agreement.

3. Equipment

Subject to the terms and conditions of this Agreement, Virtual Field agrees to transfer to you the Equipment described more fully in your Order.

3.1 Delivery of Equipment

Virtual Field shall deliver any Equipment within a reasonable time after accepting your Order. Virtual Field shall not be liable for any delays, loss, or damage in transit.

1. 3.1.1 Shipping Agreement. Delivery of Equipment shall be made UCC F.O.B. Delivery Point.
2. 3.1.2 Title and Risk of Loss. Title and risk of loss passes to you upon delivery of the Equipment at the Delivery Point.
3. 3.1.3 Delivery Point. Unless otherwise agreed in writing by the parties, Virtual Field shall deliver the Equipment to the address listed on your Order (the “Delivery Point”) consistent with Virtual Field’s standard methods for packaging and shipping such Equipment, noted in Section 3.1.1.
4. 3.1.4 Partial Shipments. Virtual Field may, in its sole discretion, without liability or penalty, make partial shipments of Equipment to you. Each shipment will constitute a separate sale, and you shall pay for the units shipped whether such shipment is in whole or partial fulfillment of your Order.
5. 3.1.5 Non-Delivery. If for any reason you fail to accept delivery of any of the Equipment on the date fixed pursuant to Virtual Field’s notice that the Equipment has been delivered at the Delivery Point, or if Virtual Field is unable to deliver the Equipment at the Delivery Point on such date because you have not provided appropriate instructions, documents, licenses or authorizations: (i) risk of loss to the Equipment shall pass to you; (ii) the Equipment shall be deemed to have been delivered; and (iii) Virtual Field, at its option, may store the Equipment until you pick them up, whereupon you shall be liable for all related costs and expenses (including, without limitation, storage and insurance). The quantity of any installment of Equipment as recorded by Virtual Field on dispatch from Virtual Field’s place of business is conclusive evidence of the quantity received by you on delivery unless you can provide conclusive evidence proving the contrary. Virtual Field shall not be liable for any non-delivery of Equipment (even if caused by Virtual Field’s negligence) unless you give written notice to Virtual Field of the non-delivery within three (3) days of the date when the Equipment would in the ordinary course of events have been received. Any liability of Virtual Field for non-delivery of the Equipment shall be limited to replacing the Equipment within a reasonable time or adjusting the invoice respecting such Equipment to reflect the actual quantity delivered. You acknowledge and agree that the remedies set forth in this Section are your exclusive remedies for any non-delivery of Equipment.

3.2 Inspection and Rejection of Nonconforming Equipment

You shall inspect the Equipment within five (5) days of receipt (“Inspection Period”). You will be deemed to have accepted the Equipment unless you notify Virtual Field in writing of any Nonconforming Equipment during the Inspection Period and furnish such written evidence or other documentation as required by Virtual Field. “Nonconforming Equipment” means only that either: (i) the Equipment shipped is different than identified in the Order; or (ii) the Equipment does not perform in material accordance with the associated documentation provided by Virtual Field.

If timely notification to Virtual Field of any Nonconforming Equipment is provided, Virtual Field shall, in its sole discretion: (i) replace such Nonconforming Equipment with conforming Equipment, or (ii) credit or refund the Fees (for such Nonconforming Equipment), together with any reasonable shipping and handling expenses incurred by you in connection therewith. You shall ship the Nonconforming Equipment to Virtual Field. Virtual Field shall reimburse you for reasonable and documented shipping and handling fees incurred by you in shipping the Nonconforming Equipment to Virtual Field within thirty (30) days of its receipt of the Nonconforming Equipment and supporting expense documentation. If Virtual Field exercises its option to replace Nonconforming Equipment, Virtual Field shall, after receiving your shipment of Nonconforming Equipment, ship to you, at Virtual Field’s expense, the replaced Equipment to the Delivery Point.

YOU ACKNOWLEDGE AND AGREE THAT THE REMEDIES SET FORTH IN THIS SECTION ARE YOUR EXCLUSIVE REMEDIES FOR THE DELIVERY OF NONCONFORMING EQUIPMENT.

4. Your Acts or Omissions

If Virtual Field’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of you or your agents, subcontractors, consultants, or employees, Virtual Field shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges, or losses sustained or incurred by you, in each case, to the extent arising directly or indirectly from such prevention or delay.

5. Terms of 30-Day Free Trial

The 30-Day Free Trial (“Trial Period”) is completely free. Nothing is due to begin the Trial Period, and the Equipment and Software are free during this 30-day period, commencing five (5) days after the Equipment has shipped (“Trial Start Date”). During the thirty (30) days following the Trial Start Date, you may return that Equipment to Virtual Field in the same condition it was provided to you, normal wear and tear excepted, with no further payment obligations. You must provide a credit card or other payment method at sign-up to ensure uninterrupted access to the Software at the end of the Trial Period when your subscription to Virtual Field’s Services automatically converts to a paid subscription.

1. 5.1 Canceling During Trial Period. If you do not cancel and return the Equipment consistent with this Section, we will charge your payment method the Fees at the end of the Trial Period and on a recurring basis until cancelled as described herein. You may initiate your cancellation and return any time during the Trial Period by first contacting info@virtualfield.com and then mailing the Equipment back to Virtual Field using the included return shipping label.
2. 5.2 Equipment Purchase Fee for Failing to Return Equipment. If you cancel during the Trial Period and fail to return the Equipment to Virtual Field within thirty (30) days of cancelling, or there are missing or damaged components to the Equipment, we reserve the right to charge your payment method seven hundred dollars ($700) as an Equipment purchase fee.
3. 5.3 Limitations of Trial Period. Virtual Field offers this Trial Period as a convenience to our customers and reserves the right to deny returns under the Trial Period program if we have a reasonable belief that you are abusing the program. You are only permitted one (1) Trial Period or discounted price offer. If either you or Virtual Field terminates your license to the Software under this Agreement for any reason, and you later purchase Equipment and Services, you shall not be eligible for an additional Trial Period. For combinations with other offers, restrictions may apply.

6. Fees

In consideration for providing you with the Equipment and licensing the Software, you shall pay Virtual Field the fees set forth in your Order (“Fees”), subject to the terms of the Trial Period. You agree to reimburse Virtual Field for all reasonable travel and out-of-pocket expenses incurred by Virtual Field in connection with providing the Equipment and Software. All Fees are exclusive of all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any Governmental Authority on any amounts payable by you. You shall be responsible for all such charges, costs and taxes; provided that you shall not be responsible for any taxes imposed on, or with respect to, Virtual Field’s income, revenues, gross receipts, personal or real property, or other assets.

7. Payment Agreement

1. 7.1. The Term and Fees for your subscription to our Software are disclosed prior to purchase and confirmed via email following purchase.
2. 7.2. Your subscription to Virtual Field’s Software automatically renews until cancelled. You may cancel any time by contacting info@virtualfield.com.
3. 7.3. Cancellation will cease auto-renewal but Fees paid are non-refundable, except where required by law. You must pay the Fees through the end of your Term.
4. 7.4. You shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law. You shall reimburse Virtual Field for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees and court costs. In addition to all other remedies available under this Agreement or at law (which Virtual Field does not waive by the exercise of any rights hereunder), Virtual Field shall be entitled to suspend the delivery of any Equipment or access to any Software if you fail to pay any amounts when due hereunder.
5. 7.5. You shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Virtual Field, whether relating to Virtual Field’s breach, bankruptcy or otherwise.

8. Change to Software

Notwithstanding anything to the contrary contained in this Agreement, Virtual Field may, from time to time change the Software without your consent provided that such changes do not materially affect the nature or scope of the Software, or the Fees or Term set forth in your Order.

9. Indemnity and Release

To the extent permitted by applicable law, you agree to defend, indemnify and hold harmless Virtual Field, its affiliates, their respective officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (i) your access to or use of the Software and the Equipment; (ii) your violation of any of this Agreement; (iii) your actual or alleged infringement, misappropriation or violation of Virtual Field’s or any of its licensors’ intellectual property or proprietary rights; or (iv) your violation of any applicable laws. This defense and indemnification obligation will survive the term of this Agreement.

10. Waiver of Implied Warranties

1. 10.1. The content presented on or through the Software and Equipment is made available solely for general information purposes. We do not warrant the accuracy, completeness, or usefulness of this content. Any reliance you place on such information is strictly at your own risk. We disclaim all liability and responsibility arising from any reliance placed on such materials by you or any other user of the Software and Equipment, or by anyone who may be informed of any of its content.
2. 10.2. This Software and Equipment may include content provided by third parties. All statements and/or opinions expressed in these materials, and all articles and responses to questions and other content, other than the content provided by Virtual Field, are solely the opinions and the responsibility of the person or entity providing those materials. These materials do not necessarily reflect the opinion of Virtual Field. We are not responsible, or liable to you or any third party, for the content or accuracy of any materials provided by any third parties.
3. 10.3. YOUR USE OF THE EQUIPMENT AND SERVICES AND ITS CONTENT IS AT YOUR OWN RISK. THE EQUIPMENT AND SERVICES AND ITS CONTENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. VIRTUAL FIELD MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE EQUIPMENT OR SOFTWARE, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF TITLE; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.

11. Limitation of Liability

1. 11.1. IN NO EVENT SHALL VIRTUAL FIELD BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT VIRTUAL FIELD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
2. 11.2. IN NO EVENT SHALL VIRTUAL FIELD’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS YOU PAID TO VIRTUAL FIELD FOR THE EQUIPMENT AND SERVICES SOLD HEREUNDER DURING THE PRECEDING TWELVE (12) MONTHS.
3. 11.3. The limitation of liability set forth in Section 11.2 shall not apply to (i) liability resulting from Virtual Field’s gross negligence or willful misconduct and (ii) death or bodily injury resulting from Virtual Field’s acts or omissions.

12. Intellectual Property

“Intellectual Property Rights” means all (a) patents, patent disclosures, and inventions (whether patentable or not), (b) trademarks, service marks, trade dress, trade names, logos, corporate names, and domain names, together with all of the goodwill associated therewith, (c) copyrights and copyrightable works (including computer programs), and rights in data and databases, (d) trade secrets, know-how, methods, processes, and other proprietary or confidential information, and (e) all other intellectual property rights of any kind or nature whatsoever, in each case whether registered or unregistered and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection in any part of the world.

You acknowledge that Virtual Field™, and all related names, logos, product and service names, designs, and slogans are trademarks of Virtual Field or its affiliates or licensors. You must not use such marks without the prior written permission of Virtual Field. All other names, logos, product and service names, designs, and slogans on our Software and Equipment are the trademarks of their respective owners.

The Software and Equipment and their entire contents, features, and functionality (including but not limited to all information, software, text, displays, images, video, and audio, and the design, selection, and arrangement thereof) are owned by Virtual Field, its licensors, or other providers of such material and are protected by copyright, trademark, patent, trade secret, and other intellectual property or proprietary rights laws. If you print, copy, modify, download, or otherwise use or provide any other person with access to any part of the Software and Equipment in breach of this Agreement, your right to use the Software and Equipment will stop immediately and you must, at our option, return or destroy any copies of the materials you have made. No right, title, or interest in or to the Software and Equipment or any content on the Software and Equipment is transferred to you, and all rights not expressly granted are reserved by us. Any use of the Software and Equipment not expressly permitted by this Agreement is a breach of this Agreement and may violate the law.

13. Compliance with Law

You shall comply with all applicable laws, regulations, and ordinances. You shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that you need to carry out your obligations under this Agreement.

14. Term & Termination

This Agreement shall be effective from the date Virtual Field accepts your Order and shall continue thereafter for the period stated in your Order (either an annual term of one year or a monthly term of one month), unless sooner terminated pursuant to this section. In addition to any remedies that may be provided under this Agreement, Virtual Field may terminate this Agreement with immediate effect upon written notice to You, if You: (a) fail to pay any amount when due under this Agreement; (b) have not otherwise performed or complied with any of this Agreement, in whole or in part; or (c) become insolvent, file a petition for bankruptcy. Upon expiration or termination of this Agreement, Virtual Field shall cease providing the Software to you. In no event will Virtual Field refund any Fees you have paid, including in the event you terminate or cancel this Agreement prior to the end of its term.

15. Protected Health Information

The parties acknowledge that, in the course of you accessing the Software, Virtual Field may obtain access to “Protected Health Information” and thereby become your “Business Associate”, as defined in the Health Insurance Portability and Accountability Act of 1996 and the regulations issued thereunder. The parties represent and warrant that they have executed or will execute a Business Associate Agreement (“BAA”), consistent with the attached Annex 1, prior to processing its Protected Health Information. The BAA will prevail in the event of any conflict between such terms and the terms of this Agreement.

16. Confidential Information

You acknowledge the proprietary and confidential nature of the Software and Equipment and any and all of our information provided to you through the Software and Equipment, including but not limited to our trade secrets, intellectual property and proprietary rights, business and financial information, technical information, and processes (collectively, the “Confidential Information”). Confidential Information shall not include information that: (a) you already knew about without restriction on use or disclosure prior to receipt of such information from Virtual Field; (b) is or becomes generally known by the public other than by your breach of this Agreement, or your other wrongful act; (c) you developed independently of, and without reference to, any Virtual Field Confidential Information; or (d) you receive from a third party who is not under any obligation to Virtual Field to maintain the confidentiality of such information.

You agree not to: (y) use Confidential Information for any purpose other than use of the Software and Equipment pursuant to this Agreement, and (z) disclose our Confidential Information to any third party without our prior written consent. At a minimum, you agree to limit access to our Confidential Information to those advisors, attorneys, contractors, consultants and employees having a need to know our Confidential Information for that party either to exercise its rights or fulfill its obligations, as applicable, under this Agreement. Upon termination or expiration of this Agreement for any reason, you shall return or destroy all Virtual Field Confidential Information. This Section shall apply to Confidential Information that is in the possession of your subcontractors or agents or affiliates. You shall retain no copies of the Software and Equipment or Virtual Field Confidential Information.

17. Force Majeure

No party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations of you to make payments to Virtual Field hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party’s (“Impacted Party”) reasonable control, including, without limitation, the following force majeure events (“Force Majeure Event(s)”): (a) acts of God; (b) flood, fire, earthquake, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or actions; (e) embargoes or blockades in effect on or after the date of this Agreement; (f) pandemic; and (g) national or regional emergency.

Notwithstanding the foregoing, each Party hereby expressly waives its rights to rely on this Section 17 in any way as a result of the ongoing COVID-19 pandemic. The Impacted Party shall give notice within five (5) days of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party’s failure or delay remains uncured for a period of thirty (30) consecutive days following written notice given by it under this Section 17, either party may thereafter terminate this Agreement upon thirty (30) days’ written notice.

18. Assignment

You shall not assign any of your rights or delegate any of your obligations under this Agreement without the prior written consent of Virtual Field. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves you of any of your obligations under this Agreement. Virtual Field may assign, transfer, or otherwise dispose of any or all of its rights and/or obligations under this Agreement without your prior consent.

19. Relationship of the Parties

The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.

20. No Third-Party Beneficiaries

This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.

21. Governing Law and Jurisdiction

All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule that would cause the application of the laws of any jurisdiction other than those of the State of New York. Any legal suit, action, or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of New York in each case located in New York, New York, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.

22. Notices

All notices shall be in writing and shall be deemed received when delivered either: (i) at the time when it was delivered personally, addressed to the proper party with confirmation receipt, or sent by electronic transmission; (ii) one business day after deposited for next day delivery with a reputable commercial overnight courier; or (iii) 3 days after mailing by certified mail return receipt requested, to the party at the address listed below. Each party is responsible to update its contact information.

23. Miscellaneous

If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. No waiver by Virtual Field of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Virtual Field. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

Provisions of this Agreement which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement. The Agreement, or any portion thereof, may only be amended or modified by you in a writing stating specifically that it amends this Agreement and is signed by an authorized representative of each party. The Agreement, or any portion thereof, may be amended or modified by Virtual Field by providing you with an updated version of the Agreement at least thirty (30) days prior to effect.

This Business Associate Agreement (“Agreement”) is made between Virtual Field, Inc. (“Business Associate”) and your practice (“Covered Entity”) (individually a “party” and collectively “the parties”) and is effective as of the signed order date.

Recitals

Definitions

“Designated Record Set”

Shall have the meaning given to such term in 45 CFR § 164.501.

“Electronic PHI”

Shall have the meaning given to such term under the Privacy Rule and the Security Rule, including, but not limited to, 45 CFR § 160.103, as applied to the information that Business Associate creates, receives, maintains or transmits from or on behalf of Covered Entity.

“HIPAA Rules”

Shall mean the Privacy, Security, Breach Notification and Enforcement Rules at 45 CFR Parts 160 and 164.

“Individual”

Shall have the same meaning given to such term in 45 CFR § 160.103 and shall include a person who qualifies as the individual’s personal representative in accordance with 45 CFR § 164.502(g).

“Privacy Rule”

Shall mean the Privacy Standards at 45 CFR Part 164, Subpart E.

“Protected Health Information” (“PHI”)

Shall have the meaning given to such term in 45 CFR § 160.103.

“Required By Law”

Shall have the same meaning given to such term in 45 CFR § 164.103.

“Secretary”

Shall mean the Secretary of Health and Human Services (“HHS”) or his or her designee as provided in 45 CFR § 160.103.

“Security Incident”

Shall have the same meaning given to such term under the Security Rule, including, but not limited to, 45 CFR § 164.304.

“Security Rule”

Shall mean the Security Standards at 45 CFR Part 164, Subparts A and C.

Terms and Conditions

Business Associate agrees to:

1. Not use or disclose PHI other than as permitted or required by the Agreement or as required by law;
2. Use appropriate safeguards, and comply with Subpart C of 45 CFR Part 164 with respect to Electronic PHI, to prevent use or disclosure of PHI other than as provided for by the Agreement;
3. Report to Covered Entity via security@carrot.io any use or disclosure of PHI not provided for by the Agreement of which it becomes aware, including breaches of unsecured PHI as required at 45 CFR 164.410, and any security incident of which it becomes aware;
4. In accordance with 45 CFR 164.502(e)(1)(ii) and 164.308(b)(2), if applicable, ensure that any subcontractors that create, receive, maintain, or transmit PHI on behalf of the Business Associate agree to the same restrictions, conditions, and requirements that apply to the Business Associate with respect to such information;
5. Make available PHI in a Designated Record Set to the Covered Entity as necessary to satisfy Covered Entity’s obligations under 45 CFR 164.524;
6. Make any amendment(s) to PHI in a designated record set as directed or agreed to by the covered entity pursuant to 45 CFR 164.526, or take other measures as necessary to satisfy covered entity’s obligations under 45 CFR 164.526;
7. Maintain and make available the information required to provide an accounting of disclosures to the Covered Entity as necessary to satisfy Covered Entity’s obligations under 45 CFR 164.528;
8. To the extent Business Associate is to carry out one or more of Covered Entity’s obligation(s) under Subpart E of 45 CFR Part 164, comply with the requirements of Subpart E that apply to the Covered Entity in the performance of such obligation(s); and
9. Make its internal practices, books, and records available to the Secretary for purposes of determining compliance with the HIPAA Rules.

Permitted Uses and Disclosures by Business Associate

1. Business Associate may only use or disclose PHI as necessary to perform the services set forth in the Services Agreement. Further, Business Associate is authorized to use PHI to de-identify the information in accordance with 45 CFR 164.514(a)-(c) and to subsequently use the de-identified information.
2. Business Associate may use or disclose PHI as required by law.
3. Business Associate agrees to make uses and disclosures and requests for PHI consistent with Covered Entity’s minimum necessary policies and procedures.
4. Business Associate may not use or disclose PHI in a manner that would violate Subpart E of 45 CFR Part 164 if done by Covered Entity, except for the specific uses and disclosures set forth below.
5. Business Associate may use PHI for the proper management and administration of the Business Associate or to carry out the legal responsibilities of the Business Associate.
6. Business Associate may disclose PHI for the proper management and administration of Business Associate or to carry out the legal responsibilities of the Business Associate, provided the disclosures are required by law, or Business Associate obtains reasonable assurances from the person to whom the information is disclosed that the information will remain confidential and used or further disclosed only as required by law or for the purposes for which it was disclosed to the person, and the person notifies Business Associate of any instances of which it is aware in which the confidentiality of the information has been breached.
7. Business Associate may provide data aggregation services relating to the health care operations of the Covered Entity.

Provisions for Covered Entity to Inform Business Associate of Privacy Practices and Restrictions

1. Covered Entity shall notify Business Associate of any limitation(s) in the notice of privacy practices of Covered Entity under 45 CFR 164.520, to the extent that such limitation may affect Business Associate’s use or disclosure of PHI.
2. Covered Entity shall notify Business Associate of any changes in, or revocation of, the permission by an individual to use or disclose his or her PHI, to the extent that such changes may affect Business Associate’s use or disclosure of PHI.
3. Covered Entity shall notify Business Associate of any restriction on the use or disclosure of PHI that Covered Entity has agreed to or is required to abide by under 45 CFR 164.522, to the extent that such restriction may affect Business Associate’s use or disclosure of PHI.

Permissible Requests by Covered Entity

Covered Entity shall not request Business Associate to use or disclose PHI in any manner that would not be permissible under Subpart E of 45 CFR Part 164 if done by Covered Entity, except as otherwise provided for in this Agreement, except where Business Associate will use or disclose PHI for data aggregation or management and administration and legal responsibilities of the Business Associate.

Term and Termination

1. Term. The Term of this Agreement shall be effective as of the date set forth above, and shall terminate at the termination of the maintenance and operations obligations set forth in the Services Agreement or on the date Covered Entity terminates for cause as authorized in paragraph (b) of this Section, whichever is sooner.
2. Termination for Cause. Business Associate authorizes termination of this Agreement by Covered Entity, if Covered Entity determines Business Associate has violated a material term of the Agreement and Business Associate has not cured the breach or ended the violation within thirty (30) days of Covered Entity’s written notice to Business Associate of the breach or violation.
3. Obligations of Business Associate Upon Termination. Upon termination of this Agreement for any reason, Business Associate, with respect to PHI received from Covered Entity, or created, maintained, or received by Business Associate on behalf of Covered Entity, shall:
   1. Retain only that PHI which is necessary for Business Associate to continue its proper management and administration or to carry out its legal responsibilities;
   2. Retain de-identified PHI;
   3. Return to Covered Entity or destroy the remaining PHI that the Business Associate still maintains in any form;
   4. Continue to use appropriate safeguards and comply with Subpart C of 45 CFR Part 164 with respect to electronic PHI to prevent use or disclosure of the PHI, other than as provided for in this Section, for as long as Business Associate retains the PHI;
   5. Not use or disclose the PHI retained by Business Associate other than for the purposes for which such PHI was retained and subject to the same conditions set out at paragraphs (e) and (f) above under “Permitted Uses and Disclosures By Business Associate” which applied prior to termination; and
   6. Destroy the PHI retained by Business Associate when it is no longer needed by Business Associate for its proper management and administration or to carry out its legal responsibilities.
4. Survival. The obligations of Business Associate under this Section shall survive the termination of this Agreement.
5. Regulatory References. A reference in this Agreement to a section in the HIPAA Rules means the section as in effect or as amended.
6. Amendment. The Parties agree to take such action as is necessary to amend this Agreement from time to time as is necessary for compliance with the requirements of the HIPAA Rules and any other applicable law.
7. Interpretation. Any ambiguity in this Agreement shall be interpreted to permit compliance with the HIPAA Rules.