Very Special Hearts, LLC
End User License Agreement and Notice under the Health Insurance Portability and Accountability Act
REDISTRIBUTION NOT PERMITTED
IMPORTANT -- READ CAREFULLY BEFORE USING THIS PRODUCT
This License Agreement is a legal agreement between You (either an individual or an entity) and Very Special Hearts, LLC and its suppliers and licensors. By clicking on the "Accept" button, installing, copying or otherwise using the Software, Services or the Product, You agree to be bound by the terms of this License Agreement.
YOU AGREE THAT YOUR USE OF THE PRODUCT, INCLUDING THE SOFTWARE AND SERVICES, ACKNOWLEDGES THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS.
1. DEFINITIONS.
(a) Very Special Hearts refers to the legal entity Very Special Hearts LLC, and any and all related entities, officers, employees, affiliates, agents and licensors.
(b) Content refers to, without limitation, text, graphics, photos, illustrations, images, video and music or other audio clips that are transferred to or from or stored on the Product.
(c) Electronic Health Data or Health Data refers to, without limitation, digital data that includes Your Information. Electronic Health Data are individualized; that is, each person for whom You choose to maintain Electronic Health Data has distinct Electronic Health Data from each other person. The classification of data as Electronic Health Data for purposes of this Agreement shall bear no relevance as to whether such data is individually identifiable Protected Health Information (“PHI”) pursuant to the Health Information Portability and Accountability Act (“HIPAA”).
(d) Intellectual Property refers to, without limitation:
(i) all names and marks, including trademarks, service marks, trade names, corporate names, trade dress, slogans, logos and domain names, and registrations and applications for registration thereof including, all registered and unregistered trademarks, trade names, service marks and applications therefor and all goodwill associated therewith;
(ii) all patents, patent applications and inventions, including any provisional, utility, continuation, continuation in part or divisional applications filed in the United States or any other jurisdiction, and all reissues thereof and all reexamination certificates issuing therefrom;
(iii) all ownership rights to any copyrightable works or works in progress, including all related copyright registrations;
(iv) all know-how or other trade secrets, whether or not reduced to practice, whenever and however arising, including ideas, designs, models, industrial designs, concepts, techniques, inventions, discoveries or improvements, information, data, trade secrets or experience, whether patentable or not, including but not limited to, all design or manufacturing techniques, operating instructions, machinery designs, raw materials or product specifications, drawings, and any other technical and commercial information relating to research, design, development, manufacture, assembly, use or sale, confidential information, or proprietary information; all computer and electronic data processing programs and software programs and related documentation; existing research projects; products, processes and computer software presently under development; all product, process and software concepts owned; and all proprietary information, processes, formulae and algorithms used in the ownership, marketing, development, maintenance, support and delivery of such products, processes and software;
(v) all licenses, options to license, agreements, contracts and other contractual rights concerning any such intellectual property; and
(vi) goodwill associated with any of the foregoing.
(e) Plug-In refers to any computer program that interacts with the Software to provide a certain, usually very specific, function "on demand."
(f) Product refers to decorative jewelry made or sold by or on behalf of Very Special Hearts that contains media (such as a USB flash drive) that includes Software to allow You to create, edit, maintain and delete Your Information in Your Electronic Health Data.
(g) Services refer to any or all services offered in conjunction with the Product, including, without limitation, services offered by Very Special Hearts and/or services offered by third parties.
Exemplary Services provided by Very Special Hearts may include, for example, an automated phone-dialing Service, or “Autodialer Service,” through which you can select at least one phone number that Very Special Hearts will attempt to dial at approximately the times you indicate to give a generic message that may act as a reminder to you to do certain things related to your health care such as to take a prescribed dosage of a medication. Such a Service shall NOT replace medical advice or replace Your personal and primary responsibility in planning Your health care scheduling. Rather, such a Service is merely supplemental and provided for Your convenience only. You rely on such a Service at Your sole risk. Very Special Hearts accepts No liability if a message is not delivered to You via the Autodialer Service for any reason, including but not limited to time skew, the inability to complete a call, Your phone being lost or off or malfunctioning, a third party answering Your phone and failing to deliver a message to You, third-party telephone service interruptions, and/or interruptions of any system or Service of Very Special Hearts for any reason. Very Special Hearts further reserves the right, at its sole discretion, to meter the number of times that a Service is provided during any predetermined period of time (e.g., the number of reminders provided within a twenty-four hour period using the Autodialer Service).
Very Special Hearts may also offer an encrypted back-up Service for storing a back-up copy or copies of Your Electronic Health Data in an encrypted format. Very Special Hearts does NOT guarantee that such Electronic Health Data, including any PHI, cannot be de-coded or otherwise deciphered or disclosed, and Very Special Hearts shall bear no liability for any decoding, deciphering or disclosure.
Very Special Hearts may also offer a news-sharing Service. You may use this Service to allow Very Special Hearts to use Your Information to send you specific news and information and advertisements based upon Your Information or You may use this Service to receive only general health news and information and advertising by specifically requesting that Very Special Hearts NOT use Your Information to determine which general health news and information and advertising to provide to You. If You so request, any general health news and information and advertising that You receive that relates to any health condition that You may have is purely coincidental and such coincidence shall not form the basis for any theory of liability against Very Special Hearts.
If You choose to use any Service,You hereby waive any and all HIPAA rights that You may have when You affirmatively decide to communicate any of Your Electronic Health Data and/or PHI through the Service, including for example asking for a reminder with respect to some healthcare event, generally or specifically.
Very Special Hearts may, at its sole discretion, implement protocols that require a confirmation that a communication is intended for the specific recipient; however, under NO circumstances does Very Special Hearts guarantee protection of your Electronic Heath Data and/or PHI from third parties, and refers you generally to its Privacy Policy and its HIPAA Notice of Privacy Practices herein. Very Special Hearts bears no liability for any disclosure of any of Your Electronic Health Data and/or PHI arising out of Your use of any Service provided by Very Special Hearts.
To the extent You elect to contract with third parties for Services, You do so (i) directly with the third party and not through Very Special Hearts (Very Special Hearts may identify third parties to You merely as a convenience for You), and (ii) You do so at Your sole risk. With respect to Your contractual relations with third parties, whether or not Very Special Hearts introduced You to said third parties, Very Special Hearts shall NOT be liable to You or third parties for any reason, including the actions or inactions of You or third parties.
Exemplary Services provided by third parties may include, for example, a nurse advisory service. If You choose to use this or any other Service provided by a third party to whom You were introduced by Very Special Hearts, You hereby waive any and all HIPAA rights that You may have when You affirmatively decide to communicate any of Your Electronic Health Data and/or PHI through the proposed Service. Very Special Hearts does NOT guarantee protection of your Electronic Heath Data and/or PHI from third parties, and refers you generally to its Privacy Policy and its HIPAA Notice of Privacy Practices herein. Very Special Hearts bears no liability for any disclosure of any of Your Electronic Health Data and/or PHI arising out of Your use of any Service provided by Very Special Hearts or any third party.
Very Special Hearts or any third parties providing any Services reserve the right to cancel or suspend any Service at any time with or without notice.
(h) Your Information refers to, without limitation, any public information or confidential information about You or family members for whom You choose to maintain Electronic Health Data. This information may include, without limitation, past, present and/or future identity such as names and social security numbers. This information may also include, but is not limited to past, present and/or future mental and/or physical health information such as drug allergies, current diagnoses and treatments, current prescription and over-the-counter medications and dosages, scheduling information relating to doses of medications, Your insurance policy information, Your physician(s) names and contact information, and whatever additional information that You decide to record using the Software and/or Services. The classification of information as Your Information for purposes of this Agreement shall bear no relevance as to whether such information is PHI pursuant to HIPAA.
2. UPDATING YOUR INFORMATION. You are solely responsible for the substance, accuracy, currency, and completeness of Your Information. This includes Your Information that You use in connection with any Service, as well as Your Information that is stored or transferred to or from the media including the Software or stored on any other media via direct or indirect use of the Software. The utility of the Software is limited by the quality and frequency of Your input. Thus, when there is a change in Your medical situation or in the medical situation of a family member for whom You are maintaining Electronic Health Data, You should use the Software to update Your Information quickly and thoroughly. Very Special Hearts shall not be liable for any consequence resulting from or relating to Your Information being inaccurate, incomplete, or out-of-date. See also Section Nine (9).
3. MODIFICATIONS. Very Special Hearts may modify this Agreement and the Product, Services, and/or Software at its sole discretion at any time without notice or liability to You. A copy of the most current version of this Agreement, by which You are bound by virtue of Your continued use of the Software and Product and/or Services, will be made available on the Very Special Hearts Website.
4. GRANT OF LICENSE. Very Special Hearts hereby grants to You a limited, revocable, non-exclusive and non-transferable license, without the right to sublicense to use the Software and any related documentation ("Documentation") in association with the Product and/or Services subject to the following terms:
(a) You may: (i) use the Software on any single computer in association with the Product; (ii) use the Software in association with the Product on a second computer so long as the first and second computers are not used simultaneously; and (iii) copy the Software for back-up and archival purposes, provided any copy must contain all of the original Software's proprietary notices.
(b) You may not use the Software in association with any Plug-In that is not provided by Very Special Hearts unless such Plug-In is provided by a third party introduced to You by Very Special Hearts to provide a Service. Very Special Hearts shall bear no liability for any damage or inoperability whatsoever arising out of any Plug-In.
5. LICENSE RESTRICTIONS.
(a) You may not: (i) permit other individuals to use the Software except under the terms listed above; (ii) modify, translate, reverse engineer, decompile, disassemble (except to the extent that this restriction is expressly prohibited by law) or create derivative works based upon the Software or Documentation; (iii) copy the Software or Documentation (except for back-up or archival purposes); (iv) rent, lease, transfer, or otherwise transfer rights to the Software or Documentation; or (v) remove any proprietary notices or labels on the Product including the Software and Documentation.
(b) You agree that You shall only use the Product and/or Services, including the Software and Documentation in a manner that complies with all applicable laws in the jurisdictions in which You use the Product and/or Services, including, but not limited to, applicable restrictions concerning copyright and other Intellectual Property rights of Very Special Hearts or its suppliers and/or licensors and/or licensees.
(c) You may only use the Software for Your private, non-commercial use. You may not use the Software in any way to provide, or as part of, any commercial service or application or in connection with rendering professional or administrative services to another person or entity.
(d) You may not use the Software in an attempt to, or in conjunction with, any device, program or service designed to circumvent technological measures employed to control access to, or the rights in, a content file or other work protected by the copyright laws of any jurisdiction.
(e) The Software may embody one or more coding systems, including, but not limited a serial copying management system required by the laws of the United States. You may not circumvent or attempt to circumvent any such system by any means.
(f) To the extent that the Product includes Your Information and/or the Services use Your Information, You grant Very Special Hearts a non-cancelable global, non-exclusive right to use Your Information, including all intellectual property in Your Information, for any purpose including, but not limited to, any and all Services that are provided to You in association with using the Product.
(g) You warrant and represent that You own or have the right to license the rights granted above; that You have full power and authority to enter into this Agreement; and that Your Information and Electronic Health Data (a) do not violate or infringe the rights of any persons, including without limitation, rights in copyrights, patents, trademarks, service marks, trade secrets, privacy rights, publicity rights, and other proprietary rights; (b) are not libelous, threatening, defamatory, obscene, indecent, pornographic, or could give rise to any civil or criminal liability under U.S. or international law; and (c) include no harmful code or properties, including but not limited to bugs, viruses, worms, trap doors, or Trojan horses.
(h) Very Special Hearts retains ownership of all information collected or stored by or on behalf of Very Special Hearts during the Term of this Agreement, including transaction data, file-share requests, file transfers, search requests, other shared materials, customer geographic and demographic information.
(i) You specifically authorize Very Special Hearts, without prior notice and without incurring any liability to You, to release and/or disclose all or any portion of Your Information, including any and all PHI, in the following special situations:
(i) In connection with judicial process, in response to a subpoena or court order, by Very Special Hearts incident to any litigation against You or Your successors in interest, or in defense of any claim asserted against Very Special Hearts by You or any other person or entity that in any way arises from this Agreement;
(ii) In response to an inquiry by law enforcement in connection with their investigation of criminal activity;
(iii) Where the disclosure of Your Information is necessary (as is determined in Very Special Hearts’ sole discretion) to protect You or others, and/or is in the interest of public safety or health; and/or,
(iv) For any other reason Very Special Hearts in its sole discretion deems necessary to exercise and/or protect its rights hereunder.
6. COPIES OF SOFTWARE AND ENHANCEMENTS. If You receive the first copy of the Software electronically and a second copy on physical media (e.g., CD, diskette, etc.), the second copy may be used for archival purposes only and may not be transferred to or used by any other person.
7. AUTOMATIC COMMUNICATIONS FEATURES.
(a) The Software may include one or more interactive applications or Plug-Ins that may optionally facilitate communication over a computer network such as the Internet as part of their normal operation. You agree not to interfere with the normal operation of any such Plug-In, including, but not limited to their communication features. Thus, by installing and/or using the Software or any Plug-In, You consent to the implemented features including their communication features. For example, once You log into the Software, information, including software authorization information may be sent to a third party. That information may be used by Very Special Hearts for any reason whatsoever, including, but not limited to registration and software updates. You agree to assign all right, title and interest to any information transferred as well as any license so that the information may be used by Very Special Hearts. To the extent that ownership is not possible, You grant to Very Special Hearts a license to the information, including the right to grant sub-licenses. The Software may match identifiable information in order to be able to provide You with products, services, and software and to provide You with other relevant information. You are responsible for any telecommunications or other connectivity charges incurred through use of the Software.
(b) Auto Update: Using Auto Update may automatically connect You and one or more Servers on the Internet to check for updates to Very Special Hearts software, such as bug fixes, patches, enhanced functions, missing plug-ins and new versions.
8. TITLE. All ownership, including the complete right, title and interest, as well as all Intellectual Property rights in and to the Product and/or Services shall remain in Very Special Hearts or its suppliers and/or licensors and/or licensees. The Software and the Services are protected by various intellectual property laws including, not limited to patent, trademark and copyright laws of the United States and other jurisdictions. All ownership including right, title and interest and all Intellectual Property rights in and to the Content accessed through the Software shall be retained by the applicable content owner and may be protected by applicable copyright or other law. This Agreement gives You no rights to such Content except as expressly granted in Section Four (4). To the extent that there is a question of ownership, as between You and Very Special Hearts, Very Special Hearts shall have all ownership interests.
9. WARRANTIES AND LIABILITIES.
(a) LIMITED WARRANTY: Except to the extent that any aspect of the Product and/or Services was promotional, free, a trial, and/or a pre-release version, Very Special Hearts warrants that the media containing the Software, if provided by Very Special Hearts, is free from material defects in material and workmanship and will so remain for thirty (30) days from the date You acquire the Product and/or Services.
(b) DISCLAIMERS. EXCEPT AS OTHERWISE PROVIDED ABOVE, THE PRODUCT AND SERVICES, INCLUDING SOFTWARE, DOCUMENTATION, HARDWARE (INCLUDING THE DECORATIVE JEWELRY COMPONENTS, MEDICATION RECEPTACLES, AND USB CONNECTIVITY COMPONENTS) AS WELL AS ALL ASSOCIATED SERVICES AND CONTENT ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, VERY SPECIAL HEARTS FURTHER DISCLAIMS ALL WARRANTIES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. VERY SPECIAL HEARTS DOES NOT ENDORSE, WARRANT OR GUARANTEE ANY CONTENT PROVIDED BY OR THROUGH VERY SPECIAL HEARTS OR ANY OF ITS SUPPLIERS AND/OR LICENSORS AND/OR LICENSEES. THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF THE PRODUCT INCLUDING SOFTWARE, DOCUMENTATION AS WELL AS ANY ASSOCIATED SERVICES AND CONTENT REMAINS WITH YOU.
(i) Very Special Hearts DOES NOT WARRANT that Your use of the Product and/or Services will be uninterrupted or that the operation of the Software will be error-free or secure. This includes, but is not limited to the Autodialer Service. Very Special Hearts does not warrant that the Product and/or Services will be compatible with particular software or hardware. Very Special Hearts does not warrant that Your use of the Product and/or Services will not cause harm to Your computer or any hardware or software thereon. If any modifications are made to the Product and/or Services by You during the warranty period; if the Product and/or Services and/or media are subjected to accident abuse or improper use; or if You violate the terms of this License Agreement, this warranty shall immediately terminate. This warranty shall not apply if the Product or Services or Software is used on or in conjunction with hardware or software other than the unmodified version of hardware and Software with which the Software was designed to be used as described in the Documentation.
(ii) Very Special Hearts DOES NOT WARRANT the substance, accuracy, currency, and completeness of Your Information stored in Electronic Health Data in the media provided by Very Special Hearts. You are solely responsible for the accuracy, currency, and completeness of Your Information. This includes Your Information, including any PHI that is used in conjunction with any of the Services, stored or transferred to or from the media containing the Software or stored on any other media via direct or indirect use of the Software.
(iii) Very Special Hearts does not provide warranty coverage for any Product or Services or media containing or using Your Electronic Health Data that suffers damage as a result of abuse, misuse, improper storage, water damage, unauthorized access or decryption, fire, flood, earthquake, storm, or other natural disaster, war, embargo, lockout or interruption of failure of electricity or telephone service, or Your negligence.
(iv) Very Special Hearts does not provide medical diagnoses, advice or treatment of any kind and specifically DOES NOT WARRANT any medical diagnoses, advice or treatment provided by any Service.
(v) Mandatory FDA Disclaimer: The Product, Services and product statements in the Documentation have not been evaluated by the US Food and Drug Administration. These Products and Services are not intended to diagnose, treat, cure or prevent any disease. Those seeking treatment for a specific disease should consult a qualified physician prior to using the Products or Services.
(vi) By using the Product, Services or Software and/or any related products or software or websites, You warrant and specifically acknowledge that You are not a health care provider or other person or entity covered by the Federal Health Insurance Portability and Accountability Act of 1996 (or any similar laws or regulations of any jurisdiction).
(c) LIMITATIONS ON LIABILITY
(i) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO LEGAL THEORY AND IN NO EVENT SHALL VERY SPECIAL HEARTS OR ITS SUPPLIERS OR ITS LICENSORS OR ITS LICENSEES BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, OR OTHER DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, LOSS OF GOOD WILL, COMPUTER FAILURE, OR OTHER PECUNIARY AND/OR COMMERCIAL LOSS) ARISING OUT OF THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE PRODUCT SERVICES, AND/OR SOFTWARE. THIS LIMITATION ON LIABILITY AND DAMAGES INCLUDES ANY ACTION ARISING FROM OR RELATING TO THE CONTENT OF THE INFORMATION ENTERED, STORED, EDITED AND/OR DELETED USING THE SOFTWARE, INCLUDING BUT NOT LIMITED TO YOUR INFORMATION RELATING TO MEDICAL TREATMENTS BASED AT LEAST IN PART UPON YOUR INFORMATION THAT HAS BEEN ENTERED, STORED, UPDATED, EDITED, DELETED OR MANIPULATED IN ANY OTHER WAY VIA DIRECT OR INDIRECT USE OF THE SOFTWARE. THIS LIMITATION ON LIABILITY AND DAMAGES APPLIES EVEN IF VERY SPECIAL HEARTS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. VERY SPECIAL HEARTS’ TOTAL LIABLITY FOR ANY DIRECT DAMAGES SHALL NOT EXCEED TWENTY-FIVE DOLLARS ($25.00). IN NO EVENT SHALL VERY SPECIAL HEARTS’ LIABILITY UNDER ANY PROVISION OF THIS AGREEMENT EXCEED TWENTY-FIVE DOLLARS ($25.00). BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, AT LEAST SOME PORTIONS OF THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
(ii) Customer Remedies Under Warranty. Very Special Heart’s sole liability for a breach of this warranty shall be in Very Special Heart’s sole discretion to replace Your defective media. Only if You inform Very Special Hearts of the problem with the media during any applicable warranty period and provide evidence of the date You acquired the Software will Very Special Hearts be obligated to honor this warranty.
(iii) Very Special Hearts is not liable for any medical advice, diagnoses or treatment given that in any way refers or relates to Your Health Data, whether or not Your Health Data is accurate or complete. Your disclosure of Your Health Data to others, including medical professionals and medical staff, is solely at Your own risk.
(iv) Very Special Hearts is not liable for any damages resulting from any disclosure of Your Information, whether or not Your Information includes PHI.
(v) Very Special Hearts is not liable for any damage arising out of or in any way relating to Your use of the Product and/or Services, including any situation where Your use of the Product and/or Service is in any way connected with any negative health result, including death.
(vi) Very Special Hearts is not liable for any damages arising out of or in any way relating to Your contractual relationship with a third party, including any third party to whom You are introduced by Very Special Hearts for any reason, including the provision of Services in connection with the Product.
10. INDEMNIFICATION. You agree to indemnify, defend and hold harmless Very Special Hearts, its parent, subsidiaries, affiliates, and their respective officers, directors, shareholders, employees and agents from and against any and all claims, liabilities, expenses (including attorneys' fees) and damages arising out of claims in any way arising from this Agreement, or resulting from Your access or connection to, or use of the Product or Services or media, including without limitation claims arising out of any or all Your Information or Your Electronic Health Data, Your allowing third parties to access, use or modify Your Information, Your commercial use of the Product, Your violation of a third party’s Intellectual Property or other rights, or any claims alleging facts that if true would constitute a breach by You of the terms and conditions of this Agreement, including, but not limited to any and all warranties or representations. Very Special Hearts reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by You, and in such case, You agree to cooperate with Very Special Hearts in the defense or in asserting counterclaims to any such claims and You shall continue to pay all costs, expenses and attorneys fees following Very Special Hearts’ assumption of control (including, but not limited to the right to select counsel and to make all strategic decisions in any litigation or other proceeding related in any way to the foregoing) until the matter is resolved, as well as any resultant damages. If You are importing the Software from the United States, You shall indemnify and hold Very Special Hearts harmless from and against any import and export duties or other claims arising from such importation.
11. TERMINATION. This License Agreement will automatically terminate if You fail to comply with any term hereof. No notice shall be required from Very Special Hearts to effect such termination. You may also terminate this License Agreement at any time by notifying Very Special Hearts in writing of termination. Upon any termination of this License Agreement, You shall immediately discontinue use of the Software and shall within three (3) days return to Very Special Hearts, or certify destruction of, all full or partial copies of the Software, documentation and related materials provided by Very Special Hearts. Your obligation to pay accrued charges and fees shall survive any termination of this License Agreement.
12. PRIVACY POLICY AND HIPAA NOTICE. Very Special Hearts wants to you to know that we respect your privacy because we know that trust is the key to any successful business relationship. The following Privacy Policy describes Very Special Hearts’ efforts to protect your personal information. This Privacy Policy explains how Very Special Hearts collects, uses and discloses your personal information from your use of the Product and the Very Special Hearts Website (“the Site”). This Privacy Policy also explains the steps Very Special Hearts has taken to protect your personal information. This Privacy Policy additionally explains your choices regarding the online collection, use and disclosure of your personal information. In some circumstances, Very Special Hearts’ use of your information may also be subject to the requirements of the Health Information Portability and Accountability Act (frequently referred to as “HIPAA”). This may be the case when you submit individually identifiable Protected Health Information ("PHI") to Very Special Hearts in connection with Services provided by Very Special Hearts or third parties including, but not limited to a nurse advisory call service, in which case the terms of the HIPAA Notice of Privacy Practices will apply, the terms of which are identified at the end of this document.
(a) INFORMATION COLLECTION AND USE
I. Information Collection. Very Special Hearts collects information from you using the Site. Very Special Hearts’ primary goal in collecting personal information is to provide you with an efficient, meaningful and customized experience. For example, Very Special Hearts can use your personal information to:
● make the Site easier for you to use by not requiring you to enter information more than once.
● help you quickly find information and services.
● help Very Special Hearts provide content on the Site that is most relevant to you.
● alert you to updated information and services offered by Very Special Hearts.
(A) Registration. To use certain portions of the Site, you may be required to first complete an online registration form. During any such registration, you will be prompted to provide to Very Special Hearts certain personal information, and possibly credit reference information, including but not limited to your name, address, phone number and e-mail address, and credit card information. In addition, Very Special Hearts may also ask you for detailed residence information so Very Special Hearts can comply with applicable privacy laws and regulations.
(B) Children. Very Special Hearts does not knowingly accept personal information from anyone under the age of 13. Likewise, those under the age of 18 are prohibited from making purchases on the Site.
(C) Cookies and Other Technology. Very Special Hearts may collect site-visitation statistical information through “cookies,” Web beacons and other technology. The Site may employ cookies and other technology to speed your navigation of the Site by allowing the Site to recognize each user and his or her access privileges and to track the user's usage of the Site (“user data”).
(i) "Cookies" are small pieces of information that are stored by a user's Internet browser on a user's computer hard drive. Most Internet browsers are initially set to accept cookies. You can set your browser to refuse cookies, but upon doing so, you most likely will not be able to access or use portions of the Site.
(ii) “Web beacons” help Very Special Hearts determine whether a web page on the Site has been viewed and, if so, how many times.
(D) Log Files. The Site server automatically recognizes the Internet Uniform Resource Locator (“URL”) from which you access the Site. Very Special Hearts may also log your Internet protocol ("IP") address, which may be helpful, for example, for system administration and troubleshooting purposes. (An IP address indicates the location of your computer on the Internet.)
II. Information Use and Disclosure.
(A) Internal Use. Very Special Hearts may identify you in connection with your use of certain aspects of the Site. For example, Very Special Hearts may identify you by your viewing history, IP address, profile information, user data, and/or browser type. Very Special Hearts may also request other profile data including but not limited to: geographical information (such as zip code), personal interests, gender, education, occupation and income level. Very Special Hearts may internally use your personal and non-personal information for many purposes, including but not limited to tracking its users’ demographics, to improving Very Special Hearts’s marketing and promotional efforts, to improving the Site’s content and/or layout, and to determining general marketplace information about visitors to this Site.
(B) External Use. Very Special Hearts may disclose personal information about you to third parties when (1) Very Special Hearts uses such third parties to provide products or services on its behalf; (2) required or permitted by law; (3) Very Special Hearts seeks to protect its legal rights; and (4) in connection with any licensing, sale, merger, transfer or other disposition associated with all or a portion of the business..
III. Your Disclosure of Personal Information in Public Areas
Personal information that you disclose in a public area of the Site may be collected and used by third parties or Very Special Hearts. If you do decide to disclose personal information, you do so at your sole risk.
(b) STEPS TAKEN TO PROTECT PERSONAL INFORMATION
DATA SECURITY
This Site incorporates various procedures to safeguard the confidentiality of your personal information, and such procedures may include Secure Sockets Layer ("SSL") encryption for certain pages.
LIMITATIONS ON DATA SECURITY & PRIVACY PROTECTIONS
VERY SPECIAL HEARTS CANNOT GUARANTEE SECURITY. VERY SPECIAL HEARTS ASSUMES NO RESPONSIBILITY OR LIABILITY FOR DISCLOSURE OF YOUR PERSONAL INFORMATION THAT OCCURS BY NEGLIGENCE OF VERY SPECIAL HEARTS, ERRORS IN TRANSMISSION, UNAUTHORIZED OR ILLEGAL ACCESS, OR ANY OTHER VEHICLE FOR DISCLOSURE.
THE SITE MAY CONTAIN LINKS TO OTHER WEBSITES. VERY SPECIAL HEARTS IS NOT RESPONSIBLE FOR THE CONTENT OR PRIVACY POLICIES ON ANY THIRD-PARTY WEBSITES OR PRIVACY PRACTICES BY ANY THIRD PARTIES.
(c) YOUR CHOICES REGARDING INFORMATION COLLECTION AND USE
You can request that Very Special Hearts: (a) remove your personal information from Very Special Hearts database (which might cancel your subscription to the Site or a portion of the Site); or (b) correct or update your personal information. You can request that Very Special Hearts remove, correct or update your personal information at the customer information section of this Site or by contacting Very Special Hearts using the information on the contact page of the Site. Subject to the rules and regulations under which Very Special Hearts must operate as well as the nature of Very Special Hearts’ ongoing relationship with you (e.g., a pending transaction), Very Special Hearts will review your request and use reasonable business judgment with respect to complying.
(d) CHANGES TO THIS PRIVACY POLICY
If Very Special Hearts decides to change this Privacy Policy, Very Special Hearts may do so without notice. Very Special Hearts may post the changed Privacy Policy on the Site.
(e) CONTACT INFORMATION
If you have any questions about Very Special Hearts Privacy Policy, please contact us.
(f) HIPAA Notice of Privacy Practices
THIS NOTICE DESCRIBES HOW MEDICAL INFORMATION ABOUT YOU MAY BE USED AND DISCLOSED BY VERY SPECIAL HEARTS AND ITS SUBSIDIARIES AND AFFILIATES ("VERY SPECIAL HEARTS"), AND HOW YOU CAN GET ACCESS TO THIS INFORMATION. PLEASE REVIEW IT CAREFULLY.
Very Special Hearts recognizes that your health information is personal, and we are committed to protecting it. Very Special Hearts’ use and disclosure of your health information is also very important to our ability to provide you with quality care, and to comply with certain laws. This Notice applies to Very Special Hearts' uses and disclosures of individually identifiable Protected Health Information ("PHI") received or created by Very Special Hearts as a healthcare clearinghouse under the Standards for Privacy of Protected Health Information disseminated under the Health Insurance Portability and Accountability Act of 1996, subject to applicable state laws.
I. We Are Legally Required to Safeguard Your PHI. Very Special Hearts is required by law to:
A. Maintain the privacy of your PHI;
B. Provide you with this Notice; and
C. Comply with this Notice.
II. Future Changes to Our Privacy Practices and This Notice. Very Special Hearts reserves the right to change its privacy practices and to make any such change applicable to your PHI obtained before the change. If a change in our practices is material, we will revise this Notice to reflect the change. You may obtain a copy of any revised Notice by contacting Very Special Hearts' Customer Care at www.veryspecialhearts.com.
III. Our Uses and Disclosures of Your PHI. The law permits us to use and disclose your PHI for purposes of providing treatment, obtaining payment and for certain operations related to healthcare. This Section III provides some examples of each of these permitted uses and disclosures.
A. Permitted Uses and Disclosures for purposes of treatment, payment and healthcare operations.
We may use and disclose your PHI to provide treatment to you or for the treatment activities of another healthcare provider. Some examples include:
We may disclose your PHI to physicians, pharmacists, nurses, and other healthcare providers and suppliers who are involved in your care for purposes of your treatment.
We may also use and disclose your PHI to tell you and your physician or other healthcare provider about or recommend treatment options or alternatives, or to tell you and your physician or other healthcare provider about health-related benefits, products or services under your benefit plan. In addition, depending on your condition, we may use and disclose your PHI for purposes of contacting you regarding your prescription refills, compliance with dosage requirements, proper drug administration, drug precautions and side effects, and product storage.
For those participating in our disease management programs, your PHI may be used and disclosed by Very Special Hearts pharmacists, nurses and case managers to provide you with health education, reminders about upcoming appointments, to monitor your compliance with therapies and to assist in the coordination of your care with physicians and other healthcare providers and suppliers.
We may use and disclose your PHI for our various therapeutic intervention programs. We may review your PHI to help us identify potential issues related to your treatment, such as proper dosage or potential drug interactions. We may use and disclose your PHI for purposes of contacting your retail pharmacist and your physician or other healthcare provider prior to dispensing a prescribed drug in the event we have identified a potentially inappropriate therapy, such as potential drug to drug interactions, or if we have identified issues related to frequency or dosage, as well as other recommendations regarding your drug regimen.
We may also use and disclose your PHI to contact your physician for purposes of recommending alternative medications when appropriate, alerting your physician regarding potential drug interactions, potential dosing issues, potential side effects and issues related to your compliance with therapy.
We may also use and disclose your PHI to advise you or your physician or other healthcare provider that an alternative generic medication is available or that a specific medication is not preferred or approved by your health plan or third party payer.
We may also use or disclose your PHI in order to get paid for treatment provided to you by Very Special Hearts or for the payment activities of another entity. For example:
We may use your PHI to create the bills that we submit to the insurance company or health plan sponsor to receive payment for the services we provide to you.
We may use your PHI to determine if you are eligible for insurance coverage or benefits under a health plan or other program.
We may disclose certain portions of your PHI to your insurance or health plan sponsor for payment audit purposes or to our business associates who perform billing, adjudication, claims processing or other related services for us.
We may use your PHI during payment-related data processing.
We may also use or disclose your PHI for our operations related to healthcare. For example:
We may use your PHI to evaluate the quality of care you received from us, or to evaluate the performance of those involved with your care.
We may use and disclose your PHI to provide utilization reports and other data analyses to your plan sponsor for purposes of prescription benefits management.
We may also use and disclose your PHI to perform periodic quality assurance reviews and audits, to develop protocols, and for purposes of case management and care coordination.
PHI may be provided to our internal auditors, attorneys, accountants, and other consultants to make sure we are complying with the laws that affect us.
We may use and disclose your PHI in conducting data analysis for purposes of providing information and data to your plan sponsor, new program development and providing services to improve outcomes and effectively manage prescription drug costs.
In addition, we may also disclose your PHI to another healthcare provider, health insurance plan, or healthcare clearinghouse for purposes of their operations related to healthcare. However, we will only do so if they have or have had a relationship with you and if the PHI they request pertains to that relationship. In addition, we will disclose your PHI to these third parties for limited purposes only, such as conducting quality improvement activities, reviewing the performance of a healthcare provider, or training purposes.
B. Uses and Disclosures That Require Us to Give You the Opportunity to Object. Unless you object, we may provide relevant portions of your PHI to a family member, friend, or other person you indicate is involved in your healthcare or in helping you get payment for your healthcare. In an emergency or when you are not capable of agreeing or objecting to these disclosures, we will disclose PHI as we determine is in your best interest, but will advise you of such use and disclosure after the emergency, and give you the opportunity to object to future disclosures to family and friends. Unless you object, we may also disclose your PHI to persons performing disaster relief notification activities.
C. Certain Other Uses and Disclosures Which Do Not Require Your Authorization. The law allows us to use and disclose PHI without your authorization in the following circumstances:
1. When Required by Law. We use and disclose PHI when we are required to do so by federal, state or local law.
2. For Public Health Activities. We use and disclose PHI when we are so required to by public health and other government authorities. For example, we may be required to disclose information to the Federal Food and Drug Administration (FDA) relative to adverse events with respect to medications, products, product recalls, defects or replacements. We also use and disclose PHI as necessary to report suspected child abuse.
3. For Reports About Victims of Abuse, Neglect or Domestic Violence. We will use and disclose your PHI in reports about victims of abuse, neglect, or domestic violence only if we are required or authorized by law to do so, or if you otherwise agree.
4. To Health Oversight Agencies. We will use and disclose PHI as requested by government agencies who have authority to audit or investigate our operations.
5. For Lawsuits and Disputes. If you are involved in a lawsuit or dispute, we may use and disclose your PHI in response to a subpoena or other lawful request, but only if efforts have been made to tell you about the request or to obtain a court order that will protect the PHI requested.
6. To Law Enforcement. We may use and disclose PHI if asked to do so by a law enforcement official, in the following circumstances: (a) in response to a court order, subpoena, warrant, summons or similar process; (b) to identify or locate a suspect, fugitive, material witness or missing person; (c) to provide information about the victim of a crime if, under certain limited circumstances, we are unable to obtain the person's agreement; (d) about a death we believe may be due to criminal conduct; (e) about criminal conduct at our facility; and (f) in emergency circumstances, to report a crime, its location or victims, or the identity, description or location of the person who committed the crime.
7. To Coroners, Medical Examiners and Funeral Directors. We may use and disclose PHI to facilitate the duties of coroners, medical examiners and funeral directors.
8. To Organ Procurement Organizations. We may use and disclose PHI to facilitate organ donation and transplantation.
9. For Medical Research. We may use and disclose your PHI to medical researchers who request it for approved medical research projects; however, with very limited exceptions such uses and disclosures must be cleared through a special approval process before any PHI is used and disclosed to the researchers, who will be required to safeguard the PHI they receive.
10. To Avert a Serious Threat to Health or Safety. We may use and disclose your PHI to someone who can help prevent a serious threat to your health and safety or the health and safety of another person or the public.
11. For Specialized Government Functions. We may use and disclose your PHI for specialized government functions. For example, we may use and disclose your PHI to authorized federal officials for intelligence and national security activities that are authorized by law, or so that they may provide protective services to the President or foreign heads of state or conduct special investigations authorized by law.
12. To Workers' Compensation or Similar Programs. We may use and disclose your PHI to workers' compensation or similar programs in order for you to obtain benefits for work-related injuries or illness.
IV. Other Uses and Disclosures of Your Protected Health Information. Other uses and disclosures of your PHI that are not covered by this Notice or permitted by the laws that apply to us will be made only with your written authorization. If you give us written authorization for a use or disclosure of your PHI, you may revoke that authorization, in writing, at any time. If you revoke your authorization, we will no longer use or disclose your PHI for the purposes specified in the written authorization, except that we are unable to take back any disclosures we have already made with your permission. In addition, we can use or disclose your PHI after you have revoked your authorization for actions we have already taken in reliance upon your authorization. We are also required to retain certain records of the uses and disclosures made when the authorization was in effect.
V. Your Rights Related to Your Protected Health Information. You have the following rights:
A. The Right to Request Limits on Uses and Disclosures of Your PHI. You have the right to ask us to limit how we use and disclose your PHI, as long as you are not asking us to limit uses and disclosures that we are required or authorized to make by the Secretary of the Federal Department of Health and Human Services, related to any of the disclosures described in Section III above. Any such request must be submitted in writing to our Privacy Officer. We are not required to agree to your request. If we do agree, we will put it in writing and will abide by the agreement except when you require emergency treatment.
B. The Right to Choose How We Communicate With You. You have the right to ask that we send information to you at a specific address (for example, at work rather than at home) or in a specific manner (for example, by email rather than by regular mail, or never by telephone). We must agree to your request as long as it would not be disruptive to our operations to do so. You must make any such request in writing, addressed to our Privacy Officer.
C. The Right to See and Copy Your PHI. Except for limited circumstances, you may look at and copy your PHI if you ask in writing to do so. Any such request must be made via our website at www.veryspecialhearts.com. Very Special Hearts will respond to your request within 60 days. In certain situations we may deny your request, but if we do, we will tell you in writing of the reasons for the denial and explain your rights with regard to having the denial reviewed.
If you ask us to copy your PHI, we may charge you a reasonable amount as allowed by law. Alternatively, we may provide you with a summary or explanation of your PHI, as long as you agree to that and to the cost, in advance.
D. The Right to Correct or Update Your PHI. If you believe that the PHI we have about you is incomplete or incorrect, you may ask us to amend it. Any such request must be made in writing and must be made via our website at www.veryspecialhearts.com, and must tell us why you think the amendment is appropriate. We will not process your request if it is not in writing or does not tell us why you think the amendment is appropriate. We will act on your request within 90 days, and will inform you in writing as to whether the amendment will be made or denied. If we agree to make the amendment, we will ask you to tell us who else you would like us to notify of the amendment.
We may deny your request if you ask us to amend information that:
1. was not created by us, unless the person who created the information is no longer available to make the amendment;
2. is not part of the PHI we keep about you;
3. is not part of the PHI that you would be allowed to see or copy; or
4. is determined by us to be accurate and complete.
If we deny the requested amendment, we will tell you in writing how to submit a statement of disagreement or complaint, or to request inclusion of your original amendment request in your PHI.
E. The Right to Receive a List of the Disclosures We Have Made. You have the right to receive a list of instances in which we have disclosed your PHI. The list will not include disclosures we have made for treatment, payment, and healthcare operations purposes described in Section III, those made directly to you or your family or friends, for disaster notification purposes, or those that were made per an authorization from you. Neither will the list include disclosures we have made for national security purposes or to law enforcement personnel, or disclosures made before April 14, 2003.
Your request for a list of disclosures must be made in writing and be made via our website at www.veryspecialhearts.com. We will respond to your request within 90 days. The list we provide will include disclosures made within the last six years unless you specify a shorter period. The first list you request within a 12-month period will be free. You will be charged our costs for providing any additional lists within the 12-month period.
F. The Right to Receive a Paper Copy of This Notice. Even if you have agreed to receive the Notice by email, you have the right to request a paper copy as well. You may obtain a paper copy of this Notice by requesting one via our website at www.veryspecialhearts.com.
VI. Complaints. If you believe your privacy rights have been violated, you may file a complaint with us or with the Secretary of the Federal Department of Health and Human Services. To file a complaint with us, put your complaint in writing and address it to our Chief Privacy Officer at Very Special Hearts 660 Newport Center Drive, Suite 700, Newport Beach, CA 92660. We will not retaliate against you for filing a complaint. You may also contact our Privacy Officer if you have questions or comments about our privacy practices.
Please refer to the notice of privacy practices of your benefit plan or other healthcare provider with respect to the uses and disclosures of PHI received or created by Very Special Hearts in the course of performing services for or on behalf of such health plan or other healthcare provider.
13. IMPORTANT--MISCELLANEOUS.
(a) Arbitration & Jurisdiction. You and Very Special Hearts agree that the exclusive remedy for all disputes and claims relating in any way to, or arising out of, this Agreement, the Software or Services, or Your use of the Software or Services shall be final and binding arbitration. The arbitration shall be conducted under the Commercial Arbitration Rules of the American Arbitration Association ("AAA") and AAA's Supplementary Procedures for Consumer Related Disputes ("AAA Consumer Rules"). The arbitration shall take place in the State of California. To the fullest extent permitted by law: no arbitration under this License Agreement shall be joined to any other arbitration, including any arbitration involving any other current or former licensee of Very Special Hearts; no class arbitration proceedings shall be permitted; no finding or stipulation of fact in any other arbitration, judicial or similar proceeding may be given preclusive or collateral estoppel effect in any arbitration hereunder (unless determined in another proceeding between You and Very Special Hearts); and no conclusion of law in any other arbitration may be given any weight in any arbitration hereunder (unless determined in another proceeding between You and Very Special Hearts). Your arbitration fees and Your share of arbitrator compensation will be limited to those set forth in the AAA's Consumer Rules with the remainder paid by Very Special Hearts. If such costs are determined to be excessive, Very Special Hearts will pay all arbitration fees and arbitrator compensation. You and Very Special Hearts may litigate in court only to compel arbitration under this Agreement, stay proceedings pending arbitration, or to confirm, modify, vacate or enter judgment on the award rendered by the arbitrator(s). You and Very Special Hearts hereby consent to the exclusive jurisdiction of the state and federal courts sitting in the State of California to enforce the provisions of this Section and to resolve any disputes and claims cognizable in court relating in any way, or arising out of, this Agreement, the Software or Services or Your use of the Software or Services. The court, not the arbitrator, shall determine arbitrability and enforce the arbitration agreements contained herein, including the prohibition on consolidated arbitrations and class arbitration. This Agreement and all disputes and claims relating in any way to, or arising out of, this Agreement, the Software or Services or Your use of the Software or Services shall be governed by the laws of the State of California and the Federal Arbitration Act.
(b) Relationship of Parties. You acknowledge that no joint venture, partnership, employment, or agency relationship exists between You and Very Special Hearts as a result of this Agreement or any use of the Product. You agree not to hold Yourself out as a representative, agent, or employee of Very Special Hearts and Very Special Hearts shall not be liable for any representation, act or omission by You to the contrary.
(c) Assignment. Your rights are personal. You shall not assign or otherwise transfer this Agreement or assign, delegate or otherwise transfer any of Your rights, interests or obligations under this Agreement and any such assignment, delegation or other transfer shall be void. This Agreement shall inure to the benefit of Very Special Hearts’ successors, assigns and licensees.
(d) Injunctive Relief; Remedies.
(i) You agree that the remedy at law to Very Special Hearts for any actual or threatened breach of this Agreement would be inadequate and that Very Special Hearts shall be entitled to specific performance or injunctive relief, or both, in addition to any damages that Very Special Hearts may be legally entitled to recover, together with reasonable expenses of any form of dispute resolution, including attorneys’ fees.
(ii) All rights and remedies granted to Very Special Hearts under this Agreement are cumulative and not alternative, and are in addition to all other rights and remedies available to Very Special Hearts at law or in equity.
(e) Severability. If any provision of this Agreement is found by any tribunal of competent jurisdiction to be invalid or unenforceable, the invalidity of such provision shall not affect the other provisions of this Agreement, and all provisions not affected by such invalidity shall remain in full force and effect.
(f) Complete Agreement. This Agreement shall constitute the complete and exclusive agreement between us, notwithstanding any variance with any purchase order or other written instrument submitted by You, whether formally rejected by Very Special Hearts or not. The acceptance of any purchase order You place is expressly made conditional on Your consent to the terms set forth herein. The terms and conditions contained in this Agreement may not be modified by You except in a writing duly signed by You and an authorized representative of Very Special Hearts. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable, and such decision shall not affect the enforceability of such provision under other circumstances, or of the remaining provisions hereof under all circumstances.
(g) Reservation of Rights. Very Special Hearts reserves to itself any and all rights not expressly granted herein.