TERMS AND CONDITIONS
These TERMS AND CONDITIONS are applicable to any SUBSCRIPTION AGREEMENT between any PRACTICE and ILLUMA, LLC (“ILLUMA”):
CARE COORDINATION CENTER: means any one or more internal personnel, or third-party entities, hired by ILLUMA, which employ and manage the CALLERS.
CALLERS: means the individual employees of any CARE COORDIANTION CENTER who call PATIENTS to schedule, and assist them with scheduling, appointments to have their eyes examined by PROVIDERS.
ILLUMA: means Illuma, LLC.
PATIENT: means an individual who is insured under an insurance policy provided by a PAYER or Health plan.
PAYER: means a provider of health insurance that has engaged ILLUMA to provide the SERVICES.
PLATFORM: means the software platform that ILLUMA makes available to facilitate the providing of the SERVICES.
PRACTICE: means any company that employs and manages one or more PROVIDERS.
IMAGING CENTER: means a facility with the equipment to produce various types of radiologic and electromagnetic images and a professional staff to interpret the images obtained.
PROVIDERS: mean the Providers (Optometrists, Ophthalmologists and any related healthcare professional) associated with the PRACTICE or IMAGING CENTER.
SERVICES: means with regard to the PRACTICE, the services selected by the PRACTICE which may include, but are not limited to, scheduling appointments with PROVIDERS and direct or indirect actions in support of such goals such as permitting PRACTICE to upload its schedules, and allowing CALLERS to have access to such schedules and providing telephone support to employees of PRACTICE in connection with using the PLATFORM.
The PRACTICE hereby subscribes to the SERVICES on behalf of its PROVIDERS.
PRACTICE will be given (and permitted to select) a password and will be permitted to access and use the illuma PLATFORM. Such license to use the PLATFORM and the related software will be nonexclusive, nontransferable and restricted and will terminate upon the end of the TERM.
If the credit card number, the Practice provides is or becomes no longer valid during the TERM then PRACTICE will immediately provide a credit card number that is valid.
- Term, Suspension and Termination
If there is a cause, ILLUMA may suspend or terminate the TERM immediately. Suspension or Termination shall be deemed to be for cause if any of the following apply:
(a) There is a material breach by the PRACTICE of this SUBSCRIPTION AGREEMENT;
(b) If the PRACTICE or its PROVIDERS, employees, contractors, owners or directors take any action that creates a reasonable concern of harm to ILLUMA or any of the PAYERS or PATIENTS;
(c) If the PRACTICE or its PROVIDERS, employees, contractors, owners or directors take any action that creates a reasonable concern of damage to ILLUMA’s relationship with any PAYER or PATIENT; and
(d) If the PRACTICE or its PROVIDERS, employees, contractors, owners or directors take any action that creates a reasonable concern of a violation of any applicable law.
No refunds apply to any suspension or termination.
- Ownership, Including Right to Possession
PRACTICE acknowledges that the SERVICES and the PLATFORM are the exclusive property of ILLUMA and that ILLUMA retains the exclusive control over the right to possess original or copies of the PLATFORM and all related software and materials and all such rights to possession. PRACTICE shall return all copies of materials and software received from ILLUMA upon termination of the AGREEMENT.
- Intellectual Property Rights
The intellectual property rights relating to the PLATFORM are acknowledged to be owned by ILLUMA.
- HIPAA Compliance
Each of the parties agrees to comply with all requirements of the Health Insurance Portability and Accountability Act, including the privacy rules and the information security rules. Minimum requirements include taking steps to prevent the unlawful disclosure of medical information and the immediate reporting of a data breach or event as required by law.
- Acceptable Use
PRACTICE shall ensure that its users must not under any circumstances whatsoever commit, or attempt to commit, aid or abet any action that may threaten the SERVICES, whether deliberately, negligently or innocently, which shall include but is not limited to: (i) “denial of service” attacks, or “flooding” attacks against the host or network; (ii) any attempt to circumvent the user authentication or security of the host or network; (iii) the creation, transmission, storage, or publication of any kind of virus or corrupting program or corrupted data; or (iv) any other action that may adversely affect the SERVICES. ILLUMA shall have the right to suspend or terminate the SERVICES or PLATFORM, and to take such defensive action as may at ILLUMA’S sole discretion be deemed necessary in the event of any attack upon the SERVICES or network.
- Warranty Disclaimers
except as otherwise provided in this section or as otherwise required by the health information privacy and accountability act, the services and the platform are being provided “as is” without warranty of any kind. illuma does not warrant that the services (or the platform) will meet professional practice’s requirements or that the service, or the platform, will find and correctly categorize and protect against all malware and adware. illuma hereby disclaims all warranties, express, implied, or statutory, including, without limitation, all implied warranties of merchantability and fitness for a particular purpose, and any warranties as to non-infringement, related to the services and the platform supplied hereunder. some states and countries, including some restrictions that apply under hipaa in the united states, do not allow the exclusion of some warranties, so the above exclusions may not all apply to the professional practice.
- Limitation of Liability
ILLUMA and its suppliers’ entire liability under, for breach of, or arising out of, this AGREEMENT, is limited to the amount charged for the SERVICES during the one (1) calendar month just prior to the date of the event giving rise to any liability. Under no circumstances and under no legal theory, tort, contract, or otherwise, shall ILLUMA or its suppliers be liable to PRACTICE or any other person for any indirect, special, incidental, exemplary, punitive or consequential damages of any kind, including without limitation, lost profits, losses or expenses relating to interruption of business activities, loss of data or the costs of procuring substitute goods, whether or not ILLUMA was advised in advance of the possibility of such loss or damage.
- Export Controls
PRACTICE agrees to comply with all applicable U.S. export control laws and regulations as from time to time amended, including without limitation, the laws and regulations administered by the United States Department of Commerce and the United States Department of State. PRACTICE shall not export, import or transfer any of the PLATFORM contrary to U.S. or other applicable laws, whether directly or indirectly, and will not cause, approve or otherwise facilitate others such as agents or any third parties in doing so. PRACTICE represents that neither the United States Department of Commerce nor any other federal agency has suspended, revoked or denied its export privileges. PRACTICE agrees not to use or transfer the SERVICES for end use relating to any nuclear, chemical or biological weapons, or missile technology unless authorized by the U.S. Government by regulation or specific license.
- Choice of Law
This SUBSCRIPTION AGREEMENT shall be governed and construed in accordance with the laws of the State of Georgia, excluding that state’s choice of law principles, and of the United States, and all claims related to or arising out of this SUBSCRIPTION AGREEMENT, or the breach thereof, whether sounding in contract, tort or otherwise, shall likewise be governed by the laws of the State of Georgia, excluding that state’s choice of law principles, and of the United States.
Each of the parties do hereby agree that any dispute relating to this SUBSCRIPTION AGREEMENT and any other agreement or other dispute between the parties, will be decided by the state and federal courts located in Fulton County, Georgia, or if such jurisdiction cannot apply, any other federal, district or state court in the State of Georgia.
- Choice of Provider
The parties agree that any appointment scheduled by ILLUMA, or as a result of a referral from ILLUMA, with a PROVIDER shall be filled either with such PROVIDER or another PROVIDER also credentialed by the PAYER.
- Passwords: Any PRACTICE must maintain the confidentiality of its usernames and passwords for the PLATFORM.
- Restricted Use
Any PRACTICE shall not use the PLATFORM for any purpose other than providing the SERVICES. In this regard, PRACTICE, its employees, contractors, owners and directors shall not use the PLATFORM to develop a competing PLATFORM or for any other purpose not expressly permitted hereunder
- Confidential Information
“Confidential Information” means information which (i) derives actual or potential economic value from not being generally known to, and not available through proper means, by other persons who could obtain economic value from receipt or use of such information, (ii) is the subject of reasonable efforts by its owner to maintain its confidentiality or secrecy, or (iii) is by its nature confidential, or constitutes trade secrets of its owner. CONFIDENTIAL INFORMATION of OURS includes the terms and conditions of this SUBSCRIPTION AGREEMENT, software source and object code relating to the PLATFORM, inventions, know-how, data, patterns, compilations, programs, devices, methods, techniques, drawings, processes, financial and business plans, names of actual or potential PRACTICES or suppliers, data center configuration and ILLUMA Software and other technology. PRACTICE’S “CONFIDENTIAL INFORMATION” includes the results of diagnoses based on the eye examinations provided by its PROVIDERS. CONFIDENTIAL INFORMATION does not include information which (i) is or becomes generally known to the public through no act or omission of the receiving party, (ii) was in the receiving party’s possession prior to the disclosure hereunder without an obligation of confidentiality, (iii) is disclosed to the receiving party by a third party not under an obligation of confidentiality, or (iv) was independently developed by the receiving party. PRACTICE acknowledges and agrees that PRACTICE Data does not constitute “CONFIDENTIAL INFORMATION” within the meaning of this AGREEMENT to the extent such PRACTICE Data has been aggregated, de-identified or otherwise rendered incapable of personally identifying individual patients whose records were included in PRACTICE Data.
Each party agrees that, except as reasonably required for purposes of this SUBSCRIPTION AGREEMENT, it will not use in any way, nor disclose to any third party, the other party’s CONFIDENTIAL INFORMATION, and will take reasonable precautions to protect the confidentiality of such information. With respect to information disclosed in connection with the negotiation and administration of SERVICES, PRACTICE lists of either party, and technical information relating to ILLUMA’S systems, each party will take precautions to protect such information at least as stringently as it takes to protect its own CONFIDENTIAL INFORMATION. Without limiting the foregoing, in no case will the degree of care be less than reasonable care.
The restrictions of this section shall apply to any CONFIDENTIAL INFORMATION that constitutes a trade secret so long as such information does not become public through legitimate means. Health related information trackable to any individual shall remain confidential indefinitely. Information which is not health related or is not traceable to an individual and does not constitute a trade secret, shall remain confidential subject to the provisions of this AGREEMENT for so long as such information is not disclosed through legitimate means, but not longer than two (2) years from the date such information is first obtained.
- Data Privacy.
Each party is responsible for complying with the privacy and information security laws applicable to its business, including but not limited to the Health Insurance Privacy and Accountability Act Privacy Rule and Security Rule (“HIPAA”). As part of the regular use of the SERVICES, ILLUMA and PRACTICE will enter Protected Health Information into ILLUMA database(s). Notwithstanding anything to the contrary in this Section 18, ILLUMA is hereby granted the right to use PRACTICE Data (a) during the Term as follows: (i) in connection with performance of ILLUMA’S duties as described in this AGREEMENT, including all Exhibits, attachments and TERMS AND CONDITIONS; (ii) to create backup copies of data for recovery in case of catastrophic system failure or routine file repair; (iii) for billing and collecting sums owed (iv) to confirm or aid in proper operation of the PLATFORM; (iv) to troubleshoot the relevant system, isolate problems and resolve them within the system itself; and (b) during and after the TERM as follows for use by ILLUMA or its third-party PRACTICES and licensees: (i) to generate aggregate statistical and analytical reports; and (ii) to de-identify PRACTICES’ Data in accordance with accepted standards of de-identification as described in the HIPAA Privacy Rule and use such de-identified data for purposes of health informatics.
- Data Backup.
Except as set forth in the TERMS AND CONDITIONS or as otherwise agreed to in writing by the parties, PRACTICE is responsible for maintaining its own backup for all of its Data. PRACTICE represents and warrants that it uses commercially reasonable measures to back-up the PRACTICE Data and agrees that it is not relying on ILLUMA data recovery in the event of a loss of data or use of data by PRACTICE.
- Class Action Waiver; Jury Trial Waiver.
WHETHER IN COURT, SMALL CLAIMS COURT, OR OTHERWISE, ILLUMA AND PRACTICE MAY ONLY BRING DISPUTES AGAINST EACH OTHER IN AN INDIVIDUAL CAPACITY AND NOT AS A CLASS REPRESENTATIVE OR A CLASS MEMBER IN A CLASS OR REPRESENTATIVE ACTION. ILLUMA AND PROFESSIONAL PRACTICE WAIVE ANY RIGHT TO A JURY TRIAL INVOLVING ANY DISPUTES UNDER THIS AGREEMENT. PRACTICE may reject this Section 20 by mailing a written rejection notice to ILLUMA specifying: (a) the name, address, and phone number of PRACTICE, (b) the date of this Agreement, and (c) a statement that PRACTICE rejects this Section 20. This notice must be post-marked on or before 15 days after the commencement of SERVICES.
Any party entering into this SUBSCRIPTION AGREEMENT on behalf of another party does hereby represent and warrant that such action was and is being taken with full authority. The waiver by either party of any breach of any provision contained in this SUBSCRIPTION AGREEMENT shall not be deemed to be a waiver of such provision or of any subsequent breach of the same or any other provision contained in this SUBSCRIPTION AGREEMENT. Any such waiver must be in writing in order to be effective, and no such waiver or waivers shall serve to establish a course of performance between the parties contradictory to the terms hereof. All provisions of this SUBSCRIPTION AGREEMENT are severable, and the unenforceability or invalidity of any of the provisions will not affect the enforceability or validity of the remaining provisions. This SUBSCRIPTION AGREEMENT and the materials incorporated by reference herein, constitute the complete agreement between PRACTICE and ILLUMA concerning the subject matter hereof and supersede any prior proposal, agreement, or communication, oral or written, pertaining to such subject matter. This SUBSCRIPTION AGREEMENT may be signed in multiple counterparts and copies of signed copies shall be deemed to have the same evidentiary value as originals. There are no inducements to enter into this SUBSCRIPTION AGREEMENT which are not set forth herein. PRACTICE may not assign this SUBSCRIPTION AGREEMENT or any associated transactions without the written consent of ILLUMA. In the event of a breach by a party of its obligations hereunder, the non-breaching party may seek injunctive or other equitable relief without the necessity of posting bond.