EyecareLive Inc. // Last Updated May 26, 2020
EyecareLive is a company that facilitates doctor-patient interactions and the rendition of professional services through secure electronic means including real time video conferencing (synchronous communications), asynchronous store and forwarding of PHI, and secure messaging between you and patient. You provide optometric and/or ophthalmological medical services to your patients. You, as a Covered Entity under the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) are required to enter into a “Business Associate Agreement” as set forth in Exhibit A, to obtain satisfactory assurances that EyecareLive, a Business Associate as that term is defined under HIPAA, will appropriately safeguard all Protected Health Information (“PHI“) as defined herein, disclosed, created, maintained or received by EyecareLive on your behalf. For Canadian residents the terms of the Personal Information and Electronic Documents Act of 2000 is incorporated herein by reference.
PLEASE READ THESE TERMS CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. PLEASE NOTE THAT THESE TERMS CONTAIN A BINDING AND MANDATORY ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS AND LIMITS REMEDIES AVAILABLE TO YOU IN THE EVENT OF CERTAIN DISPUTES.
01. General Terms + Conditions
By accessing or using our Service, you agree to be bound by this Agreement, including Exhibit A “Business Associate Agreement,” and to use our Service in accordance with the terms and conditions of this Agreement. If you do not agree to these Terms of Service as set forth hereunder, you are not authorized to use our Service.
We reserve the right, at our sole discretion, to change or modify these Terms of Service at any time. If we need to change these Terms of Service, we will advise you and will post the revised Terms of Service through our Service and update the “Last Revised” date to reflect the date of the changes. You are responsible for being aware of any modifications or changes made to these Terms of Service. By continuing to use our Service after we post such modifications or changes, you agree to the terms of this Terms of Service, as modified or changed.
02. What service does EyecareLive provide?
Our Service is designed to enable you to provide telehealth consultations and treatment for common non-emergency medical conditions of or affecting the eye and its immediately surrounding tissues (eyelids, lashes, etc.) by facilitating the connection between you and your patients. We act only as a technology platform to connect you with your patients. We do not control or interfere with the practice of medicine or optometry by you. You are solely responsible for the health care services you provide. We do not practice medicine or optometry and we give no medical advice.
03. Territorial Restrictions
Our Service is available for use in the United States (“US”), Canada, and some other countries other than in the European Union, European Economic Union, and Switzerland (collectively “Europe”). Please be aware that information you provide to EyecareLive while accessing/using our Service in the US will be processed/stored in the US and will be subject to US laws. If you are using our Service in Canada your information will be processed/stored in Canada and will be subject to Canadian laws. Note that the privacy and data protection laws in the US and Canada may not be equivalent to such laws in your country of residence. If you are worried about that, do not register for or use our Services.
OUR SERVICE IS NOT CURRENTLY AVAILABLE OR AUTHORIZED FOR USE AND DOWNLOAD IN THE EUROPEAN UNION, EUROPEAN ECONOMIC AREA, AND SWITZERLAND. Please do not register for or use our Services if you live anywhere in the European Union, European Economic Area, or Switzerland. If you do, we will de-register you immediately when we find out.
04. Is the EyecareLive service right for you?
In some cases, our Service may not be the most appropriate way for you to provide medical eye care and treatment. For example, certain conditions may require an in-person procedure or very specialized equipment not available through our Service. You are in the best position to determine whether our Service is a fit for your practice. We provide training to you so that you understand the benefits and constraints of medical care delivered through our Service.
You are also responsible for obtaining “Informed Consent” from your patient to the use of telemedicine in the diagnosis and treatment in each instance where you are the attending doctor. Such consent is required to be in writing signed by the patient or the patients’ parent or guardian if the patient is a minor. You agree to indemnify and hold harmless EyecareLive, its parents, principals, subsidiaries, affiliates, licensors, and suppliers, and the officers, directors, employees, consultants, and agents of each, from and against any such patients’ claims, liabilities, damages, losses, costs, expenses and fees (including reasonable attorneys’ fees and court costs) that such parties may incur as a result of or arising from your failure to obtain Informed Consent from your patient.
In the event that you upload patient information when using our Services or otherwise provide patient information to EyecareLive, you represent and warrant that you have the patient’s Informed Consent to disclose such information to EyecareLive. You agree to indemnify and hold harmless EyecareLive, its parents, principals, subsidiaries, affiliates, licensors, and suppliers, and the officers, directors, employees, consultants, and agents of each, from and against any such patients’ claims, liabilities, damages, losses, costs, expenses and fees (including reasonable attorneys’ fees and court costs) that such parties may incur as a result of or arising from your failure to obtain Informed Consent from your patient or your breach of this representation and warranty.
To use our Service, you need to set up an account (“Account”). When you set up an Account, you will need to enter your name, certain information regarding your practice and payment method, and create a password (“Password”). You agree that all information you provide is true, accurate, current and complete, and you agree to maintain and promptly update such information to keep it current. You may not transfer or share your Password or Account (collectively, the “Account Information”) with anyone outside of your practice.
You are responsible for maintaining the confidentiality of your Account Information and for all activities that occur under your Password or Account. You agree to immediately notify us upon becoming aware of any unauthorized use of your Account Information. EyecareLive reserves the right to take any and all action, as it deems necessary, regarding the security of our Service and your Account Information. Under no circumstances shall EyecareLive be held liable to you for any claims or damages resulting from or arising out of your use of our Service, your use of the Account Information, or your release of the Account Information to a third party.
06. Access Rights
Subject to your compliance with the terms and conditions of this Agreement, we hereby grant you a limited, non-exclusive, nontransferable right to access our Service and use our Service on your office and home computers and mobile device(s) that you own or control, solely for providing diagnosis and treatment for your patients.
You agree that you will not, and will not attempt to: (a) interfere with or disrupt the functioning of the Service in any manner, including the functioning of any software, hardware, network or server connected to the Service; (b) distribute or transfer in any manner the Service or any part of the Service to any third party; (c) copy or modify the Service or any part of the Service for any purpose; (d) incorporate by any means any of the Service content into another application, website or service; (e) reverse-engineer or create derivative works based on any part of the Service for any purpose, commercial or otherwise; or (f) use the Service in any manner that is inconsistent with these Terms of Service. We reserve the right, in our sole discretion, to deny use of the Service to anyone if in our reasonable opinion any of the foregoing should occur.
07. Payment for Services
The current subscription fee for our Service is stated in your Sales Contract negotiated with EyecareLive. At the beginning of each month the subscription fee will be charged to the credit card of your choice or by bank transfer. EyecareLive reserves the right to change the fee structure and payment methods by providing 30 days written notice to you by email. You may cancel the Service at any time by providing 30 days advance email notice to us.
You are responsible for charging your patients your usual and customary fees and completing any insurance reimbursement forms the same as you do for in-office visits.
08. Term + Termination
The term of this Agreement will commence upon the day you create an Account and accept the terms and conditions of this Agreement and remain in full force and effect for an initial term of one (1) year (the “Initial Term”). The Initial Term will automatically renew and extend for additional one (1) year periods (each a “Renewal Term” and, collectively with the Initial Term, the “Term”), unless this Agreement is terminated according to this Section. If you are located in New York, we will provide notice to you that the Agreement with automatically renew at least forty-five (45) days before the end of the Term and no more than sixty (60) days previous to the end of the Term, calling your attention to the existence of the automatic renewal in this Agreement.
Termination for Convenience
You and EyecareLive may terminate this Agreement upon sixty (60) days’ prior written notice.
Termination by Mutual Consent
This Agreement may be terminated at any time upon mutual written consent of both you and EyecareLive. You will receive no refund of any subscription fees paid in advance unless otherwise agreed to in writing by EyecareLive.
We alone own all right, title and interest in and to our Service, including all intellectual property rights, and any suggestions, ideas or other feedback provided by you or any other party relating to our Service. Any copy, modification, revision, enhancement, adaptation, translation, or derivative work of or created from our Service shall be owned solely and exclusively by EyecareLive, as shall any and all patent rights, copyrights, trade secret rights, trademark rights, and all other proprietary rights. You shall not remove or permit any third party to remove any proprietary rights from our Service or its contents.
Certain names, logos, and other materials displayed in our Service may constitute trademarks, trade names, service marks or logos (“Marks”) of EyecareLive or other entities. You are not authorized to use any such Marks unless we expressly provide authorization for you to do so. Ownership of all such Marks and the goodwill associated therewith remains with us or those other entities.
We reserve the right to modify or discontinue, temporarily or permanently, our Service, or any portion thereof. We will not be liable to you or any third party should we exercise that right. We will not, however, interfere with the doctor-patient relationship between you and your patients. That relationship is independent of EyecareLive.
You may delete your Account at any time for any reason by sending us an email at [email protected]. You understand that termination of your Account may involve deletion of your Account Information from our live databases as well as any content that you uploaded to the Service using such Account. However, EyecareLive may retain your Account Information in accordance with applicable laws and professional standards. You agree that we will not be liable for any termination of your access to our Service or deletion of your Account or content uploaded by you.
OUR SERVICE IS PROVIDED ON AN “AS IS” BASIS. ANY ACCESS TO OR USE OF OUR SERVICE IS VOLUNTARY AND AT THE SOLE RISK OF THE USER. WE DO NOT MAKE ANY EXPRESS OR IMPLIED WARRANTIES, REPRESENTATIONS OR ENDORSEMENTS OF ANY KIND (INCLUDING, WITHOUT LIMITATION, WARRANTIES OF TITLE OR NON-INFRINGEMENT, OR ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE) WITH REGARD TO OUR SERVICE, OR WITH RESPECT TO ANY INFORMATION, PRODUCT, SERVICE, MERCHANDISE, OR OTHER MATERIAL PROVIDED ON OR THROUGH OUR SERVICE. WE DO NOT WARRANT OR GUARANTEE THE ACCURACY, COMPLETENESS, RELIABILITY, TIMELINESS, OR USEFULNESS OF OUR SERVICE. WE DO NOT WARRANT THAT THE SERVICE WILL FUNCTION WITHOUT DELAYS, DISRUPTIONS, INTERFERENCES, IMPERFECTIONS, OR ANY ADVERSE INCIDENT.
13. Copyright Infringement / DMCA Notice
If you believe that any content on our Website violates your copyright, and you wish to have the allegedly infringing material removed, the following information in the form of a written notification (pursuant to 17 U.S.C. § 512(c) (“DMCA Takedown Notice”) must be provided to our designated Copyright Agent. It is our policy to terminate the accounts of repeat infringers.
The EyecareLive’s Copyright Agent to receive the DMCA Takedown Notices is Raj Ramchandani, EyecareLive, Inc. Attn: DMCA Notice, 1010 W Fremont Avenue, Sunnyvale, California 94087. You acknowledge that for us to be authorized to take down any content, your DMCA takedown notice must comply with all the requirements of this Section. Please note that, pursuant to 17 U.S.C. § 512(f), any misrepresentation of material fact (falsities) in a written notification automatically subjects the complaining party to liability for any damages, costs and attorney’s fees incurred by us in connection with the written notification and allegation of copyright infringement.
14. Limitation of Liability
EXCEPT FOR FRAUD, GROSS NEGLIGENCE, WILLFUL MIDSCONDUCT, PERSONAL INJURY, DEATH, OR A PARTY’S INDEMNIFICATION OBLIGATIONS , IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, PUNITIVE, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE ARISING OUT OF THIS AGREEMENT, OR THE USE OF, OR THE INABILITY TO USE, OUR SERVICE, INCLUDING, WITHOUT LIMITATION, ANY INFORMATION MADE AVAILABLE THROUGH OUR SERVICE OR ANY SERVICES PERFORMED BY ANY HEALTHCARE PROVIDERS YOU CONNECT WITH VIA OUR SERVICE (INCLUDING CLAIMS OF MEDICAL MALPRACTICE), EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN THE EVENT THE FOREGOING LIMITATION OF LIABILITY IS DETERMINED BY A COURT OF COMPETENT JURISDICTION TO BE UNENFORCEABLE, THEN THE MAXIMUM LIABILITY FOR ALL CLAIMS OF EVERY KIND WILL NOT EXCEED ONE HUNDRED DOLLARS (U.S. $100.00). THE FOREGOING LIMITATION OF LIABILITY WILL COVER, WITHOUT LIMITATION, ANY TECHNICAL MALFUNCTION, COMPUTER ERROR OR LOSS OF DATA, AND ANY OTHER INJURY ARISING FROM THE USE OF OUR SERVICE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. TO THE EXTENT THAT WE MAY NOT DISCLAIM ANY IMPLIED WARRANTY OR LIMIT ITS LIABILITIES, THE SCOPE AND DURATION OF SUCH WARRANTY AND THE EXTENT OF OUR LIABILITY WILL BE THE MINIMUM PERMITTED UNDER APPLICABLE LAW.
You agree to indemnify and hold harmless EyecareLive, its parents, principals, subsidiaries, affiliates, licensors, and suppliers, and the officers, directors, employees, consultants, and agents of each, from and against any and all third-party claims, liabilities, damages, losses, costs, expenses and fees (including reasonable attorneys’ fees and court costs) that such parties may incur as a result of or arising from your use of our Service, your violation of this Terms of Service, your violation of any rights of any other person or entity, or any misdiagnosis or mistreatment by you of any patient, including any Referred Patient. We reserve the right to control the defense of any claim for which we are entitled to indemnification, and you agree to provide us with such cooperation as is reasonably requested by us.
16. Relationship of Parties
The parties hereto are independent contractors, and nothing contained herein shall be interpreted as creating any relationship other than that of independent contracting parties. The parties shall not be construed as being partners, joint ventures, shareholders, employer/employee, or agent/servant. You have no power or authority to bind EyecareLive to any obligation, agreement, debt or liability. You shall not hold itself out as an agent or representative of EyecareLive.
17. Governing Law
This Agreement shall be governed by the law of the State of Delaware, without respect to its conflict of laws principles. Each of the parties to this Agreement consents to the exclusive jurisdiction and venue of the state and federal courts located in Santa Clara County, California, for any actions not subject to Dispute Resolution and Arbitration provisions as set forth in Section 19.
18. Dispute Resolution + Arbitration
PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH EYECARELIVE AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.
Except for any disputes, claims, suits, actions, causes of action, demands or proceedings (collectively, “Disputes”) in which either party seeks to bring an individual action in small claims court or seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, including, without limitation, copyrights, trademarks, trade names, logos, trade secrets or patents, you and EyecareLive agree (a) to waive your and EyecareLive’s respective rights to have any and all Disputes arising from or related to this Agreement, use of our Services and Platform, resolved in a court, and (b) to waive your and EyecareLive’s respective rights to a jury trial. Instead, you and EyecareLive agree to arbitrate Disputes through binding arbitration (which is the referral of a Dispute to one or more persons charged with reviewing the Dispute and making a final and binding determination to resolve it instead of having the Dispute decided by a judge or jury in court).
No Class Arbitrations, Class Actions or Representative Actions
You and EyecareLive agree that any Dispute arising out of or related to this Terms of Service or the sites, content or products is personal to you and EyecareLive and that such Dispute will be resolved solely through individual arbitration and will not be brought as a class arbitration, class action or any other type of representative proceeding. You and EyecareLive agree that there will be no class arbitration or arbitration in which an individual attempts to resolve a Dispute as a representative of another individual or group of individuals. Further, you and EyecareLive agree that a Dispute cannot be brought as a class or other type of representative action, whether within or outside of arbitration, or on behalf of any other individual or group of individuals.
Federal Arbitration Act
You and EyecareLive agree that this Terms of Service affect interstate commerce and that the enforceability of this Section shall be both substantively and procedurally governed by and construed and enforced in accordance with the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (the “FAA”), to the maximum extent permitted by applicable law.
Notice; Informal Dispute Resolution
You and EyecareLive agree that each party will notify the other party in writing of any arbitrable or small claims Dispute within thirty (30) days of the date it arises, so that the parties can attempt in good faith to resolve the Dispute informally. Notice to EyecareLive shall be sent by certified mail or courier to EyecareLive, Inc., Attn: Legal, 1010 W Fremont Avenue, Sunnyvale, California, 94087. Your notice must include (a) your name, postal address, telephone number, the email address you use or used for your EyecareLive’s Account and, if different, an email address at which you can be contacted, (b) a description in reasonable detail of the nature or basis of the Dispute, and (c) the specific relief that you are seeking. Our notice to you will be sent electronically in accordance with this Agreement and will include (x) our name, postal address, telephone number and an email address at which we can be contacted with respect to the Dispute, (y) a description in reasonable detail of the nature or basis of the Dispute, and (z) the specific relief that we are seeking. If you and EyecareLive cannot agree on how to resolve the Dispute within thirty (30) days after the date notice is received by the applicable party, then either you or EyecareLive may, as appropriate and in accordance with this Section, commence an arbitration proceeding.
EXCEPT FOR DISPUTES IN WHICH EITHER PARTY SEEKS TO BRING AN INDIVIDUAL ACTION IN SMALL CLAIMS COURT OR SEEKS INJUNCTIVE OR OTHER EQUITABLE RELIEF FOR THE ALLEGED UNLAWFUL USE OF INTELLECTUAL PROPERTY, INCLUDING, WITHOUT LIMITATION, COPYRIGHTS, TRADEMARKS, TRADE NAMES, LOGOS, TRADE SECRETS OR PATENTS, YOU AND EYECARELIVE AGREE THAT ANY DISPUTE MUST BE COMMENCED OR FILED BY YOU OR EYECARELIVE WITHIN ONE (1) YEAR OF THE DATE THE DISPUTE AROSE, OTHERWISE THE UNDERLYING CLAIM IS PERMANENTLY BARRED (WHICH MEANS THAT YOU AND EYECARELIVE WILL NO LONGER HAVE THE RIGHT TO ASSERT SUCH CLAIM REGARDING THE DISPUTE). You and EyecareLive agree that (a) any arbitration will occur in Santa Clara County, California, (b) arbitration will be conducted confidentially by a single arbitrator in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this “Dispute Resolution” section, and (c) that the state or federal courts of the State of Illinois, have exclusive jurisdiction over any appeals and the enforcement of an arbitration award. You may also litigate a Dispute in the small claims court located in the county of your billing address if the Dispute meets the requirements to be heard in small claims court.
Authority of Arbitrator
As limited by the FAA, this Terms of Service and the applicable AAA rules, the arbitrator will have (a) the exclusive authority and jurisdiction to make all procedural and substantive decisions regarding a Dispute, including the determination of whether a Dispute is arbitral, and (b) the authority to grant any remedy that wfould otherwise be available in court; provided, however, that the arbitrator does not have the authority to conduct a class arbitration or a representative action, which is prohibited by this Terms of Service. The arbitrator may only conduct an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual. Notwithstanding anything to the contrary herein or the applicable AAA rules, discovery in the arbitration shall be limited to one set of interrogatories, one set of request for admissions, and one set of request for production of documents.
The arbitrator’s award of damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law. We will not seek, and hereby waive, all rights we may have under applicable law to recover, attorneys’ fees and expenses if it prevails in arbitration.
Rules of AAA
The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879. By agreeing to be bound by this Terms of Service, you either (a) acknowledge and agree that you have read and understand the rules of AAA, or (b) waive your opportunity to read the rules of AAA and any claim that the rules of AAA are unfair or should not apply for any reason.
If any term, clause or provision of this Section is held invalid or unenforceable, it will be so held to the minimum extent required by law, and all other terms, clauses and provisions of this Section will remain valid and enforceable. Further, the waivers set forth herein are severable from the other provisions of this Terms of Service and will remain valid and enforceable, except as prohibited by applicable law.
YOU HAVE THE RIGHT TO OPT OUT OF BINDING ARBITRATION WITHIN THIRTY (30) DAYS OF THE DATE YOU FIRST ACCEPTED THE TERMS OF THIS SECTION BY WRITING TO: EYECARELIVE, INC., RE: OPT-OUT, 1010 W FREMONT AVENUE, SUNNYVALE, CALIFORNIA 94087. IN ORDER TO BE EFFECTIVE, THE OPT OUT NOTICE MUST INCLUDE YOUR FULL NAME AND CLEARLY INDICATE YOUR INTENT TO OPT OUT OF BINDING ARBITRATION.
Any dispute arising under or relating to these Terms of Service will be resolved solely and exclusively by final and binding arbitration in Santa Clara County, California, under the rules of the American Arbitration Association, except that either party may bring a claim related to intellectual property rights, or seek specific performance and/or temporary and permanent injunctive relief without the posting of bond or other security.
The parties agree to the sole and exclusive personal and subject matter jurisdiction and sole and exclusive venue of the state and federal courts located in Santa Clara County, California, for any action related to these Terms of Service or the use of our service. You may only resolve disputes with us on an individual basis and not as part of any class, consolidated, multi-party, or representative action. Our failure to enforce any provision of these Terms of Service will not constitute a waiver of such right. If any provision is found to be invalid, the parties agree that the court or arbitrator should endeavor to give effect to the parties’ intentions as reflected in the provision, and that the other provisions of these Terms of Service remain in full force and effect. The parties agree that the provisions of this Agreement will be fairly interpreted without prejudice to either party, including without limitation any strict interpretation against the drafter.
You agree that regardless of any statute or law to the contrary, any claim or cause of action related to these Terms of Service or the use of our service must be filed within one (1) year after such claim arose or be forever barred. You have no authority to act on behalf of or bind EyecareLive in any way.
The parties agree to the use of electronic documents and records in connection with registration, future transactions and communications involving our Service and that all agreements, notices, disclosures and other communications provided by the parties electronically satisfy any legal requirement that such communications be in writing.
Any and all provisions of this Agreement that would reasonably be expected to be performed after the termination of this Agreement shall survive and be enforceable after such termination, including, without limitation, provisions relating to ownership, indemnification, limitation of liability and governing law.