VITALPATCH® BIOSENSOR, VISTATABLET/VISTAPHONE AND VISTA SOLUTION PLATFORM
IF YOU HAVE A MEDICAL EMERGENCY, CALL 911 IMMEDIATELY.
About These Terms and the Services. These Terms apply to and govern Your use of the VitalPatch® Biosensor Product, VistaTablet or VistaPhone (the “Products”) and access to and use of Vista Solution Platform Services (“Services”) provided by VitalConnect. VitalConnect provides the Products and Services to enable automatic and continuous physiological measurements: data is sent wirelessly to a relay device (VistaTablet or VistaPhone) and then to the cloud where it can be viewed by a caregiver or healthcare professional via VistaCenter centralized monitors, which support the Services. The Products and Services aid diagnosis and treatment of certain medical conditions, but VitalConnect does not provide healthcare, medical or treatment services or advice, nor are the Products or Services intended for use on critical care patients. The Services are a secondary, adjunct patient monitor and are not intended to replace existing standard-of-care patient monitoring practices. You also acknowledge that, depending on wireless connectivity, a temporary interruption of data transmission is possible, which may impact continuous or real-time monitoring. You agree, by using the Products and Services, to hold VitalConnect harmless from any medical decision, judgment or error made by or with Your qualified healthcare professional(s). You acknowledge that You are responsible for timely making all co-pays and payments associated with Your use of the Products or Services, and that VitalConnect assumes no such responsibility whatsoever.
The Services also include, more specifically: (a) Your use of the Products and Services in connection with the health care services provided by Your qualified healthcare professionals and physicians; (b) the website located at https://vitalconnect.com/ (the “Website”) and electronic messages or alerts that may pertain to the Services; (c) VitalConnect’s application programming interface, access tokens, HTML scripts, code snippets, tools, instructions, documentation and other materials made available by VitalConnect; and (d) any other services provided by VitalConnect that link to or are incorporated into these Terms.
Modifications to the Services. VitalConnect reserves the right at any time and for any reason to modify, or temporarily or permanently discontinue, some or all of the Services, with or without notice. You agree that VitalConnect shall not be liable to You or to any third party for any modification, suspension, or discontinuance of the Services. Furthermore, You may at any time opt-out of using or continuing to use the Services.
By accepting the Terms, You agree and consent to VitalConnect sending You disclosures, notices, messages, alerts, reports and other communications (“Communications”). Electronic Communications may include text messages, phone calls and emails, and may be sent by human operators or by automated processes. You are responsible for monitoring these Communications. You agree that any Communications that we send to You electronically will satisfy any legal communication requirements, including that such communications be in writing. You acknowledge and agree that You will not hold VitalConnect or any VitalConnect affiliate liable for any loss, injury or claim of any kind resulting from Your failure to read these Communications or for Your failure to comply with any treatment recommendations contained in these Communications.
VitalConnect is also in no way responsible for the use, performance or functioning of any third party devices used in connection with the Services that are provided by a third party, which is the sole party that would be liable for breach of warranty or any other issues involving the performance of any such third party device.
Federal and State law govern the confidentiality of medical information. This includes the Health Insurance Portability and Accountability Act of 1996, and associated regulations as amended from time to time (“HIPAA”). VitalConnect is a “HIPAA Covered Entity” as such term is defined under HIPAA and VitalConnect follows the HIPAA Privacy Rule to protect the exchange of medical records and other personal health information with Your qualified healthcare provider. You give VitalConnect Your consent and permission to communicate with other members of Your household, if necessary, with regard to Your use of the Services. You acknowledge and understand that the Services offered by VitalConnect require the use and disclosure of protected health information (“PHI”) as defined under HIPAA. The Services collect user health data that VitalConnect may de-identify and aggregate with other data to help VitalConnect offer or improve its Services (including through partnerships with third parties) and potentially for other commercial or research purposes. To this end, You hereby grant a perpetual non-exclusive, transferable, sublicensable, royalty free, world-wide license to VitalConnect to use PHI on an anonymized and de-identified basis consistent with 45 CFR 164.514(b) to the fullest extent allowed under law, including sublicensing or otherwise making such information available (in de-identified and anonymized form) to VitalConnect’s partners who provide support for the Services. You also authorize VitalConnect to provide Your monitoring data to Your qualified healthcare professional and his or her staff.
VitalConnect’s processing of PHI collected through the use of the Services is done at the direction of our customers (which may include Your qualified healthcare professional). As such, we are usually unable to process PHI access or deletion requests. All such requests should be directed to the applicable customer of VitalConnect. To the extent we receive PHI access or deletion requests, we will investigate whether we can take action on those requests, and if not, will promptly forward those requests to the appropriate customer of VitalConnect for processing.
VitalConnect understands the importance of keeping Your health information (including PHI) private. We are required by law to maintain the privacy of health information that identifies You or can be used to identify You. We are also required to provide You with this notice of Our privacy practices, our legal duties and Your rights concerning Your health information. We are required to abide by the terms of this notice currently in effect. We may modify or change Our privacy practices described in this notice from time to time, particularly as new laws and regulations come into effect. Any changes will be effective for all the health information that we maintain, even information that existed or was collected before the change. Should We make material modifications or changes to Our privacy practices, We will make updated copies of this notice and Our policies available on our Website, or You may request them by contacting Us via the contact information listed at the end of this notice.
4. Uses and Disclosures of Your Health Information.
Uses and Disclosures That May Be Made Without Your Authorization or Opportunity to Object. We may use and disclose Your health information, without your authorization, in the following ways:
Treatment: We may use and disclose Your health information to provide, coordinate or manage Your treatment, including the coordination or management of Your health care with a third party. For example, We may disclose Your health information to a qualified healthcare provider as part of his or her treatment of You.
Payment: We may use and disclose Your health information to bill and get payment for health services we provide to You. For example, We may disclose Your health information to Your health insurance plan to obtain payment for services provided to You.
Health Care Operations: We may use and disclose Your health information, in deidentified or anonymized form, to support Our business activities. For example, We may use Your health information to conduct quality improvement activities, as part of agreements with VitalConnect’s third party partners who provide functions, activities or services that assist in VitalConnect providing the Services and other similar activities.
Health & Wellness Information: We may use Your health information to contact You with information about health related services or appointment reminders. If You do not wish to receive this type of information, You may opt-out by calling VitalConnect at 1-800-219-3000 or by contacting VitalConnect at firstname.lastname@example.org.
Research; Death; Organ Donation: We may use or disclose Your health information for research purposes in limited circumstances with protocols in place to protect Your information. We may disclose Your health information to a coroner, medical examiner, funeral director or organ procurement organization for certain purposes if requested.
Health and Safety: We may use and disclose Your health information to the extent necessary and permitted by law to avert a serious and imminent threat to Your health or safety or the health or safety of others.
Required by Law: We will use or disclose Your health information when required under applicable law, including to health oversight agency for activities authorized by law such as audits, investigations or inspections. Oversight agencies include government agencies that oversee the health system, government benefit programs or other government regulatory programs and civil rights laws.
Process and Proceedings: We may disclose Your health information in response to a court or administrative order, subpoena, discovery request or other lawful process.
Law Enforcement: We may disclose Your health information, provided that applicable legal requirements are satisfied, to a law enforcement official.
Workers’ Compensation: We may disclose Your health information as authorized by and to the extent necessary to comply workers’ compensation laws or other similar programs that provide benefits for work-related injuries or illness without regard to fault under the law.
Business Associates: We may disclose Your health information to persons or third parties who perform functions, activities or services to Us or on Our behalf that require the use or disclosure of Your health information. To protect Your health information, we require the business associate to appropriately safeguard Your information.
To You: We will disclose Your health information to You, as described in the Access Rights section of this notice.
Uses and Disclosures That May Be Made With Your Agreement or the Opportunity to Object. Unless You object, We may disclose to a member of Your family, a relative, a close friend or any other person You identify, orally or in writing, Your health information that directly relates to that person’s involvement in Your health care. If You are unable to agree or object to such disclosure, we may disclose such information as necessary if We determine that it is in Your best interest based on our professional judgment. We may use or disclose your health information to notify or assist in notifying a family member, personal representative or any other person that is responsible for Your care of Your location or general condition.
Uses and Disclosures Based on Your Written Authorization.
Marketing: We must obtain Your written authorization to use and disclose Your health information for most marketing purposes.
Other Uses: Other uses and disclosures of Your health information will be made only with Your written authorization, except as described in this notice or as otherwise required or allowed by applicable law. In the event that We ask for Your authorization to use or disclose Your health information, We will provide You with an appropriate authorization form. Once you’ve given Us a written authorization, You can revoke that authorization at any time, except to the extent that We have taken action in reliance on your authorization.
5. Access Rights.
Access. Subject to Your compliance with these Terms, We grant to You a personal, limited, revocable, non-exclusive and nontransferable right to use the Products and to view, access and use the Services in the United States solely for Your personal and non-commercial use and only as permitted under these Terms. No other right, title, or interest in or to the Products and Services is transferred to you, and all rights not expressly granted are reserved by VitalConnect. There are no implied licenses granted by VitalConnect under this Agreement. We reserve the right, in Our sole discretion, to deny or suspend use of the Services to anyone for any reason.
Disclosure Accounting. You have the right to an accounting of disclosures of Your health information made by Us by submitting a request to Us in writing using the information listed at the end of this notice. This right only applies to instances when We or Our business associates disclosed Your health information for purposes other than treatment, payment, health care operations, upon Your written authorization and certain other activities. The right to receive this information is subject to certain exceptions, restrictions and limitations. You must specify a time period, which may not be longer than 6 years. You may request a shorter timeframe. You have the right to one free request within any 12-month period, but We may charge You for any additional requests in the same 12-month period. We will notify You about any such charges, and You are free to withdraw or modify Your request in writing before any charges are incurred.
Restriction Requests. You have the right to request restrictions on the use and disclosure of Your health information by submitting a request to Us in writing using the information listed at the end of this notice. Your request must state the specific restriction requested and to whom You want the restriction to apply. We are not required to agree to these additional restrictions, except We must agree not to disclose Your health information to Your health plan if the disclosure (1) is for payment or health care operations and is not otherwise required by law, and (2) relates to a health care item or service which You paid for in full out of pocket. If We agree to a restriction, we will abide by our agreement (except in an emergency).
Confidential Communication. You have the right to receive certain communications confidentially. That means You can request that We communicate with You by alternative means or to an alternative location by submitting a request to us in writing using the information listed at the end of this notice. We will accommodate Your request if it is reasonable and specifies the alternative means or location. We may also condition this accommodation by asking You for information as to how payment will be handled.
Amendment. You have the right to amend Your health information in Our records for as long as We maintain the information. You must make a request in writing, using the information listed at the end of this notice, to obtain an amendment. Your written request must explain why the information should be amended. If We agree to amend Your health information, We will make reasonable efforts to inform others of the amendment and to include the changes in any future disclosures of that information. We may deny your request if, for example, We determine that Your health information is accurate and complete. If We deny Your request, We will send You a written explanation and allow You to submit a written statement of disagreement to be appended to the information You want amended.
Paper Notice. If you receive this notice electronically You are entitled to receive this notice in written form. Please contact Us using the information listed at the end of this notice to obtain this notice in written form.
Breach. You have the right to be notified if You are affected by a breach of unsecured health information.
6. Use and Prohibited Use.
You are prohibited from violating or attempting to violate the security of the Services, Website, data, or information, including, without limitation, (a) accessing data not intended for Your use or logging onto a server or an account which You are not authorized to access; or (b) attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization; or (c) accessing or using the Services, Website, data, or information or any portion thereof without authorization, in violation of these Terms or violation of applicable law. You agree to protect the confidentiality of Your user ID and password. You also agree to use Your best efforts to prevent the unauthorized use of the Products and Services.
7. Term and Termination.
Subject to applicable law, upon termination, VitalConnect reserves the right to maintain, delete or destroy all communications and materials posted or uploaded to the Services pursuant to its internal record retention and/or content destruction policies. After such termination, VitalConnect will have no further obligation to provide the Services.
8. Disclaimer of Warranties.
YOU AGREE THAT THE PRODUCTS AND SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND THAT, TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, VITALCONNECT MAKES NO OTHER WARRANTY AS TO THE PRODUCTS OR SERVICES, INCLUDING WITHOUT LIMITATION, UNINTERRUPTED USE, CORRECTNESS OR ACCURACY AND DATA LOSS. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, VITALCONNECT DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE (EVEN IF VITALCONNECT KNOWS OR SHOULD HAVE KNOW OF SUCH PURPOSE), RELATED TO THE PRODUCTS AND SERVICES, THEIR USE OR ANY INABILITY TO USE THEM, THE RESULTS OF THEIR USE AND THIS AGREEMENT, AS WELL AS ANY IMPLIED WARRANTIES OTHERWISE ARISING OUT OF COURSE OF DEAILNG, COURSE OF PERFORMANCE, OR TRADE USAGE. VITALCONNECT DOES NOT WARRANT THAT THE PRODUCTS AND SERVICES OR ANY RESULTS OF USE THEREOF WILL BE FREE OF DEFECTS, ERRORS OR VIRUSES, RELIABLE OR ABLE TO OPERATE ON AN UNINTERRUPTED BASIS OR IN A PARTICULAR ENVIRONMENT OR THAT ERRORS THEREIN, IF ANY, WILL BE CORRECTED. YOU FURTHER ACKNOWLEDGE AND AGREE THAT VITALCONNECT SHALL NEITHER BE RESPONSIBLE NOR LIABLE FOR YOUR OR YOUR QUALIFIED HEALTHCARE PROFESSIONAL’S INABILITY TO ACCESS OR USE THE SERVICES AS A RESULT OF ANY DEFICIENCY IN THE INTERNET, TELEPHONE SERVICE, OR OTHER CONNECTION BETWEEN VITALCONNECT AND YOU. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT NEITHER THE PRODUCTS NOR SERVICES ARE INTENDED TO PROVIDE MEDICAL ADVICE, A DIAGNOSIS, OR TREATMENT AND THAT YOU MUST ALWAYS SEEK THE ADVICE OF YOUR PHYSICIAN OR A QUALIFIED HEALTHCARE PROFESSIONAL.
9. Limitation of Liability.
TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, VITALCONNECT SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGES, WHETHER IN CONTRACT OR TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL OR EQUITABLE THEORY, ARISING FROM OR RELATING TO THIS AGREEMENT OR CAUSED BY YOUR RELIANCE ON CONTENT OBTAINED THROUGH THE SERVICES, INCLUDING WITHOUT LIMITATION ANY INDIRECT, CONSEQUENTIAL, SPECIAL, EXEMPLARY, INCIDENTAL DAMAGES, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA, UNAUTHORIZED DISCLOSURE TO OR ACCESS OF DATA, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY PERSONAL INJURY OR PROPERTY DAMAGE CLAIM OR ANY OTHER TYPE OF CLAIM, EVEN IF VITALCONNECT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NONE OF THE SERVICES ARE MEDICAL OR TREATMENT SERVICES. IT IS YOUR RESPONSIBILITY TO EVALUATE THE ACCURACY, COMPLETENESS, TIMELINESS, RELIABILITY, OR USEFULNESS OF THE SERVICES AND THOSE RECEIVED BY YOUR QUALIFIED HEALTHCARE PROFESSIONAL.
TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT SHALL THE MAXIMUM AGGREGATE LIABILITY OF VITALCONNECT ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT OR ACCESS OR USE OF THE SERVICES EXCEED $1000.00 USD. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF YOUR REMEDIES HEREUNDER FAIL OF THEIR ESSENTIAL PURPOSE AND THE FOREGOING SHALL CONSTITUTE VITALCONNECT’S SOLE LIABILITY AND OBLIGATION IN RESPECT HEREOF, REGARDLESS OF THE FORM OF ACTION.
You agree to indemnify, defend and hold harmless VitalConnect from and against any and all third-party suits, actions, claims, proceedings, damages, settlements, judgments, injuries, liabilities, obligations, losses, risks, costs and expenses (including, without limitation, reasonable attorneys’ fees, litigation expenses and accounting fees), relating to or arising from, or alleged to arise from, Your use of the Products and Services in an unauthorized manner, fraud, violation of law, or willful misconduct, or any breach by You of these Terms.
To the fullest extent permitted by applicable law, You release VitalConnect from responsibility, liability, claims, demands, and/or damages (actual and consequential) of every kind and nature, known and unknown (including, but not limited to, claims of negligence), arising out of or related to disputes between You and the acts or omissions of third parties, including without limitation qualified healthcare professionals. If you are a California resident, You hereby waive any rights You may have under California Civil Code § 1542 as well as any other statute or common law principles that would otherwise limit the coverage of this release to include only those claims which You may know or suspect to exist in Your favor at the time of agreeing to this release.
12. Injunctive Relief.
You acknowledge and agree that your breach or threatened breach of this Agreement shall cause VitalConnect irreparable damage for which recovery of money damages would be inadequate and that VitalConnect therefore may obtain timely injunctive relief to protect its rights under this Agreement in addition to any and all other remedies available at law or in equity.
13. Dispute Resolution and Arbitration.
PLEASE READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES YOU AND VITALCONNECT TO RESOLVE ALL DISPUTES BETWEEN US THROUGH BINDING INDIVIDUAL ARBITRATION AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM VITALCONNECT.
Generally. In the interest of resolving disputes between You and VitalConnect in the most expedient and cost effective manner, You and VitalConnect agree that every dispute arising in connection with these Terms will be resolved by binding arbitration. Our agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND VITALCONNECT ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
Exceptions. Nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either of party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law; or (d) to file suit in a court of law to address an intellectual property infringement claim.
Arbitrator. Any arbitration between You and VitalConnect will be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes of the American Arbitration Association (“AAA”), as modified by these Terms, and will be administered by the AAA.
Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail or Federal Express (signature required), or if we do not have a physical address on file for you, by electronic mail (“Notice”). The address for Notice to VitalConnect is: 2870 Zanker Road, Suite 100, San Jose, CA 95134. We agree to use good faith efforts to resolve the claim directly, but if we do not reach an agreement to do so within thirty (30) days after the Notice is received, You or VitalConnect may commence an arbitration proceeding. If our dispute is finally resolved through arbitration in Your favor, VitalConnect will pay you the highest of the following: (i) the amount awarded by the arbitrator, if any; (ii) the last written settlement amount offered by VitalConnect in settlement of the dispute prior to the arbitrator’s award; or (iii) one thousand U.S. Dollars (USD $1,000.00 USD). Except as required to comply with law or other requirements, the arbitration proceedings, filings and outcome shall be confidential.
Governing Law. These Terms, and Your access to and use of the Services shall be governed by and construed and enforced in accordance with the laws of the State of California, without regard to conflict of law rules or principles (whether of the State of California or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. Any dispute between the parties that is not subject to arbitration or cannot be heard in small claims court, shall be resolved on an individual basis in the state or federal courts of the State of California and the United States, respectively, sitting in Santa Clara County, California.
MKT-191 Rev. B