Vivacare Privacy & Security Policy

Date of Last Revision: April 30, 2007

IMPORTANT -- PLEASE READ THIS AGREEMENT CAREFULLY. IT GOVERNS YOUR ACCESS TO AND USE OF THE SERVICES (AS DEFINED BELOW). YOUR USE OF THE SERVICES IS CONDITIONED UPON YOUR ACCEPTANCE OF THESE TERMS OF SERVICE.

The Vivacare service is owned and operated by Vivacare. This Agreement is between you ("Users") and Vivacare. This Terms of Service Agreement for Users ("Service Agreement") applies to your use of any content, applications or services made available to you on the Internet produced by Vivacare, Inc. (the "Service"), or its subsidiaries, which shall collectively be referred to as ("Vivacare").

This site is not intended for or designed to attract Users under the age of 13. Vivacare does not collect individually identifiable information from a User we have identified as under the age of 13.

Vivacare reserves the right to amend at any time this Service Agreement by posting the amended terms on our Website. You will be able to tell that a revision has been made by the date of the last revision indicated at the top of the document. The amended terms shall be effective immediately after they are initially posted on this Website. If you do not accept the amended terms, you should cease using Vivacare Services.

1. DISCLAIMER

YOU ACKNOWLEDGE THAT USE OF THE SERVICE IS STRICTLY VOLUNTARY AND USE OF SERVICE DOES NOT ESTABLISH A PROFESSIONAL RELATIONSHIP BETWEEN YOU AND VIVACARE.

A PHYSICIAN OR OTHER HEALTHCARE PROVIDER MAY SUGGEST YOU USE THIS SERVICE FOR INFORMATIONAL PURPOSES ONLY.

RELIANCE ON ANY INFORMATION PROVIDED BY THIS SERVICE IS SOLELY AT YOUR OWN RISK.

YOU ARE ENCOURAGED TO CONFER WITH YOUR HEALTHCARE PROVIDER WITH REGARD TO INFORMATION CONTAINED ON OR THROUGH THIS SERVICE. AFTER READING ARTICLES OR OTHER CONTENT FROM THIS SERVICE, YOU ARE ENCOURAGED TO REVIEW THE INFORMATION CAREFEFULLY WITH YOUR HEALTHCARE PROVIDER.

THE SERVICE SHOULD NOT BE USED IN PLACE OF A VISIT, CALL, CONSULTATION WITH OR THE ADVICE OF YOUR HEALTHCARE PROVIDER. COMMUNICATE PROMPTLY WITH YOUR PROVIDER WITH ANY HEALTH RELATED QUESTIONS. ALWAYS CONSULT WITH YOUR PROVIDER BEFORE EMBARKING ON ANY NEW TREATMENT, DIET OR FITNESS PROGRAM. YOU SHOULD NEVER DISREGARD MEDICAL ADVICE OR DELAY IN SEEKING IT BECAUSE OF SOMETHING YOU READ AS PART OF THE SERVICE.

THE INFORMATION CONTAINED IN THE SERVICE IS COMPILED FROM A VARIETY OF INFORMATION SOURCES, INCLUDING WITHOUT LIMITATION, HEALTHCARE PROFESSIONALS, MEDICAL ASSOCIATIONS, PATIENT ADVOCACY GROUPS, THE FEDERAL GOVERNMENT, PHARMACEUTICAL MANUFACTURERS, MEDICAL PUBLISHERS, OR OTHER HEALTHCARE ENTITIES ("INFORMATION SOURCES"). NEITHER VIVACARE NOR ANY INFORMATION PROVIDER DIRECTLY OR INDIRECTLY PRACTICES MEDICINE OR DISPENSES MEDICAL SERVICES AS PART OF THIS SERVICE.

NOTHING CONTAINED IN THE SERVICE IS INTENDED TO BE INSTRUCTIONAL FOR MEDICAL DIAGNOSIS OR TREATMENT OR TO BE THE PRACTICE OF MEDICINE OR THE PROVISION OF MEDICAL SERVICES BY VIVACARE OR THE THIRD PARTIES WHO AUTHORED ANY EDUCATIONAL MATERIALS DELIVERED TO YOU VIA THE SERVICE.

VIVACARE IS NOT RESPONSIBLE OR LIABLE FOR ANY ADVICE, COURSE OF TREATMENT, DIAGNSOSIS OR ANY OTHER INFORMATION, SERVICES OR PRODUCTS THAT YOU OBTAIN THROUGH THIS SITE.

VIVACARE DOES NOT RECOMMEND OR ENDORSE ANY SPECIFIC TESTS, PRODUCTS, PROCEDURES, OPINION, PHYSICIAN, MEDICAL PRACTICE, OR OTHER INFORMATION THAT MAY BE MENTIONED OR REFERENCED AS PART OF THIS SERVICE.

THE SERVICE PROVIDES INFORMATION TO YOU BASED ON THE INFORMATION YOU PROVIDE TO THE SERVICE. INFORMATION PROVIDED TO YOU MAY BE BASED UPON DATA THAT IS ENTERED BY YOU OR ON YOUR BEHALF BY ANOTHER INDIVIDUAL SUCH AS YOUR LEGAL REPRESENTATIVE OR GUARDIAN. IF THE DATA YOU OR ANOTHER INDIVIDUAL PROVIDED VIVACARE IS INACCURATE OR OUTDATED, DISREGARD ALL INFORMATION SENT TO YOU BY THE SERVICE.

YOU ACKNOWLEDGE THAT IN NO EVENT SHOULD THE SERVICE BE USED IN EMERGENCY. IF YOU THINK YOU MAY HAVE A MEDICAL EMERGENCY CALL YOUR PHYSICIAN OR 911.

THIS SERVICE DOES NOT PROVIDE A MEANS FOR YOU TO COMMUNICATE DIRECTLY WITH A HEALTHCARE PROVIDER.

THE DATA COLLECTED BY THIS SERVICE DOES NOT BECOME PART OF YOUR MEDICAL RECORD, WHICH IS CONTROLLED SEPARATELY BY YOUR HEALTHCARE PROVIDER.

ALL SERVICES AND INFORMATION ARE PROVIDED ON AN "AS IS" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. VIVACARE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. VIVACARE DOES NOT REPRESENT OR WARRANT THAT MATERIALS IN THE SERVICE ARE ACCURATE, COMPLETE, RELIABLE, CURRENT, OR ERROR-FREE. VIVACARE DOES NOT REPRESENT OR WARRANT THAT THE SERVICE OR ITS SERVERS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.

2. YOUR ACCOUNT

Users may record and store limited amounts of personal health information on a voluntary basis on servers maintained by Vivacare by establishing an account with the Service. Information stored within a User's Account may only be accessed by Users who have registered for an account and provide a valid username and password. You are responsible for taking all reasonable steps to ensure that no unauthorized person shall have access to your passwords or accounts. It is your sole responsibility to (1) control the dissemination and use of activation codes and passwords; (2) authorize, monitor, and control access to and use of your account and password; (3) promptly inform Vivacare of any need to deactivate a password. You grant Vivacare and all other persons or entities involved in the operation of the Service the right to transmit, monitor, retrieve, store, and use your information in connection with the operation of the Service. Vivacare cannot and does not assume any responsibility or liability for any information you submit, or your or any third parties' use or misuse of information transmitted or received using the Service.

What Content You Will Receive. Vivacare Content includes but is not limited to: 1) customized health education content regarding medical conditions, medications, diagnostic tests, and medical procedures; 2) prescription refill reminders; 3) appointment reminders; 4) medication rebate coupons; 5) self-care advice; 6) newsletters from your Providers and; 7) invitations to fill out surveys or other forms.

How You Will Receive Content. Vivacare may deliver content to Users in the following ways: 1) to the User’s personal email address; 2) on the Internet through a secure Webpage that requires a username and password to access; 3) through U.S. postal mail or a similar postal delivery service; 4) or via the User’s home or cellular telephone, either through the use of voice or text messaging.

3 ENDORSEMENTS

Hosting of the Service by Vivacare does not constitute or imply any endorsement or approval by Vivacare of any third party, including but not limited to Information sources or medical practices, the qualifications of its physicians and other personnel, or of any of the information or other content, applications or services provided by a medical practice or its physicians. Information obtained through the Service is not exhaustive and does not cover all diseases, ailments, physical conditions or their treatment, nor should it take the place of a consultation with a physician or competent healthcare professional for medical diagnosis and/or treatment; or serve as an endorsement for any medical practice, physician, pharmaceutical product, medical device or software.

4. THIRD-PARTY SITES AND SOURCES

You are encouraged to use discretion while browsing the Internet on searches initiated through the use of the Service. Vivacare does not monitor nor does it have any control over links to Web pages and content of third parties ("Third Party Content"). Vivacare does not represent or warrant the accuracy of any information contained therein, and undertakes no responsibility to update or review any Third Party Content. Users use these links to Third Party Content at their own risk.

5. LIMITED LICENSE

By this Service Agreement, Vivacare grants, subject to the terms of this Service Agreement, only a limited, non-transferable and non-exclusive license to the Service and the software and documentation necessary to access, explore and otherwise use the Service in real time and to use the materials in the Service in a manner consistent with paragraph 14 (Proprietary Rights) below and all of the other terms and conditions set forth in this Service Agreement.

6. COPYRIGHT

Unless otherwise indicated, all Website materials, including, without limitation all designs, text, graphics, other files, and the selection and arrangement thereof, are the proprietary and copyrighted property of Vivacare, or their respective licensors. You may electronically copy and print to hard copy portions of the Site for the sole purpose of using materials it contains for informational, non-commercial, personal use only. Any other use of the materials in this Website-including any commercial use, reproduction for purposes other than described above, modification, distribution, republication, display, or performance-without the prior written permission of Vivacare or the Information Provider who owns the content is strictly prohibited.

7. TRADEMARKS

Vivacare and any product or service names, slogans, page headers, custom graphics, button icons, and scripts contained in the Vivacare Site are either trademarks or registered trademarks of Vivacare or its licensors. Such trademarks may not be copied, imitated or used, in whole or in part, without the prior written permission of Vivacare. All other trademarks, registered trademarks, product names and company names or logos mentioned herein are the property of their respective owners.

8. REPEAT INFRINGER POLICY

Vivacare respects the intellectual property of others, and we ask our users to do the same. Vivacare may, in appropriate circumstances and at its own discretion, limit access to this Website and/or terminate the accounts of any users who infringe the intellectual property rights of others.

9. CLAIMS OF COPYRIGHT INFRINGEMENT; DESIGNATED AGENT

If you believe that any material on this Website infringes upon any copyright which you own or control, or that any link on this Website directs users to another Website that contains material that infringes upon any copyright which you own or control, you may file a notification of such infringement with our Designated Agent.

WRITTEN NOTIFICATION MUST BE SUBMITTED TO THE FOLLOWING:

Vivacare Attn: Ombudsman 1810 6th St. Berkeley, CA 94710 E-Mail: ombudsman@vivacare.com

To be effective, the notice must include the following:

a. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed ("Complaining Party");

b. Identification of the copyrighted work claimed to have been infringed, or if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;

c. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider ("Service Provider") to locate the material;

d. Information reasonably sufficient to permit the Service Provider to contact the Complaining Party, such as an address, telephone number, and if available, an electronic mail address at which the complaining party may be contacted;

e. A statement that the Complaining Party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and

f. A statement that the information in the notification is accurate, and under penalty of perjury, that the Complaining Party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

10. SUBMISSIONS

This Service Agreement governs submissions made by Users in connection with the use of the Service (such as email). Other submissions, including but not limited to questions, comments, suggestions, ideas, plans, notes, drawings, original or creative materials or other information, provided by you in the form of e-mail or submissions to Vivacare, are non-confidential and shall become the sole property of Vivacare. Please note, specific health information provided to the Service related to Users and their use of this Service is confidential. Vivacare shall own exclusive rights, including all intellectual property rights, and shall be entitled to the unrestricted use of these materials for any purpose, commercial or otherwise, without acknowledgment or compensation to you. The submission of any such materials to Vivacare irrevocably waives any and all "moral rights" in such materials, including the rights of paternity and integrity.

11. USER'S AGREEMENT

You agree that you, and not Vivacare, are responsible for all activities that occur with respect to your use of your Account including sole responsibility for maintaining the confidentiality of your Username, Password and all other confidential information. In addition you agree to: (a) maintain all equipment required for your access to and use of the Service; (b) maintain a means external to the site and the Service for the reconstruction of any lost data (c) be responsible for all charges resulting from use of your Account, including unauthorized use prior to your notifying Vivacare of such use and taking steps to prevent its further occurrence by changing your password; (d) not use simultaneous, unattended or continuous connections to the Site with one account; (e) use the Site in a manner that adversely affects the availability of its resources to other Users; or (f) use, download or otherwise copy, or provide (whether or not for a fee) to a person or entity that is not a registered user of the Service, or any portion thereof other than for personal, noncommercial purposes (except as otherwise expressly permitted by Vivacare). You agree to defend, indemnify and hold harmless Vivacare from any liability or expense arising from any use or misuse of your Account. You further agree to immediately notify Vivacare of any unauthorized use of your Account or any other breach of security known to you.

12. PRIVACY POLICY

Vivacare believes in protecting user privacy. Please refer to our Privacy & Security Statement (the "Vivacare Privacy Policy") for information on how Vivacare uses and collects information and protects your privacy.

13. USER REPRESENTATIONS

You represent and warrant that you are at least 18 years of age and that you possess the legal right and ability to enter into this Service Agreement and to use the Service in accordance with this Service Agreement. You agree to be financially responsible for your use of the Service (as well as for use of your account by others, including minors living with you) and to comply with your responsibilities and obligations as stated in this Service Agreement.

14. PROPRIETARY RIGHTS

You acknowledge that all text, information, software, music, sound, photographs, video, graphics or other material contained in the Service are provided to you through the Service by either Vivacare or Information Sources ("Vivacare Content"), is owned by Vivacare or the Information Sources and is protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws. You are hereby granted a limited license to use, reproduce and distribute such Vivacare Content solely in connection with your authorized use of the Service as contemplated by, and on the terms and conditions set forth in, this Service Agreement. Except as a necessary part of using the Service, you may not reproduce, distribute, or create derivative works from the Vivacare Content without expressly being authorized to do so by Vivacare. Except as expressly permitted by law, you agree not to decompile, disassemble or otherwise reverse engineer any of the software of the Service for any reason, or permit any third party to do so.

15. INDEMNIFICATION

You agree to indemnify, defend and hold harmless Vivacare, its officers, directors, employees, agents, information sources, licensors and suppliers from and against all losses, expenses, damages and costs, including reasonable attorney's fees, arising out of your use of the Service, any content posted on the site or through use of the Service, any activity related to your Account including without limitation any actual or threatened suit, demand, or claim made against Vivacare and/or its independent contractors, service providers, or consultants, arising out of or relating to your conduct, your violation of these terms and conditions, or your violation of the rights of any third party.

16. LIMITATION OF LIABILITY

IN NO EVENT SHALL VIVACARE, OR ITS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, NOR ANY OF ITS MEMBER PHYSICANS OR OTHER HEALTHCARE PROFESSIONALS THAT OFFER THE SERVICE TO USERS, OR OTHER REPRESENTATIVES BE LIABLE FOR ANY DIRECT, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, OR ANY OTHER DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO PERSONAL INJURY, WRONGFUL DEATH, LOSS OF USE, LOSS OF PROFITS, OR LOSS OF DATA, WHETHER IN AN ACTION IN CONTRACT, WARRANTY, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE OR FUNDAMENTAL BREACH), OR OTHERWISE, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE SERVICE OR THE MATERIALS CONTAINED IN, OR ACCESSED THROUGH THE SERVICE, INCLUDING WITHOUT LIMITATION ANY DAMAGES CAUSED BY OR RESULTING FROM RELIANCE BY USER ON ANY INFORMATION OBTAINED THROUGH THE SERVICE, OR THAT RESULTS FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR E-MAIL, ERROR, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO VIVACARE'S RECORDS, PROGRAMS, OR SERVICES.

YOU ACKNOWLEDGE AND AGREE THAT PAYMENT BY VIVACARE OR RETENTION BY YOU OF DIRECT DAMAGES, AS LIMITED BY THE FOREGOING SENTENCES, IS YOUR SOLE AND EXCLUSIVE REMEDY IN EXHAUSTION OF ALL OTHER REMEDIES UNDER THESE TERMS OF SERVICE, AT LAW OR IN EQUITY, AND THAT SUCH REMEDY IS NOT DEEMED OR ALLEGED BY YOU TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

IN NO EVENT IS VIVACARE LIABLE FOR ANY DAMAGES CAUSED BY YOUR OR ANY THIRD PARTY’S ACTS OR OMISSIONS.

ANY CLAIMS ARISING IN CONNECTION WITH YOUR USE OF THIS WEBSITE OR ANY SERVICE, PRODUCT OR INFORMATION OFFERED OR PURCHASED THROUGH THIS WEBSITE MUST BE BROUGHT WITHIN ONE (1) YEAR OF THE DATE OF THE EVENT GIVING RISE TO SUCH ACTION.

Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, the above disclaimers and limitations may not apply to you if you reside in such a jurisdiction. You may also have other legal rights that vary from state to state.

17. THIRD PARTY RIGHTS

The provisions of paragraphs 15 (Indemnification) and 16 (Limitation of Liability) are for the benefit of Vivacare and its officers, directors, employees, agents, licensors, suppliers, Member Physicians who offer the Service to Users, and Information Sources. Each of these individuals or entities shall have the right to assert and enforce those provisions directly against you on its own behalf.

18. EMAIL MESSAGE STORAGE AND OTHER LIMITATIONS

Vivacare at its discretion may preserve any and all email (including any and all files attached to or otherwise associated with any email), user forms, or any other submitted communications, records, information and materials. Notwithstanding the foregoing, you will not rely on Vivacare to preserve any of the foregoing and you agree to release and indemnify Vivacare from any liability that may arise from not preserving any such information. Vivacare assumes no responsibility for the deletion of or failure to store or timely deliver, email messages. Vivacare reserves the rights to set limits on number of messages or their storage requirements.

Messages sent to Vivacare in reply to outbound messages with health information that are delivered routinely as part of the Service may be destroyed and may not be viewed by any party, including Vivacare.

19. TERMINATION

Notwithstanding any of these terms and conditions, Vivacare reserves the right, without notice and in its sole discretion, to terminate your license to use the Service, and to block or prevent future access to and use of the Service. Upon termination by Vivacare for any reason, you agree not to access or use the Service.

20. APPLICABLE LAW

This Service Agreement shall be governed by and construed in accordance with the laws of the State of California, without resort to its conflict of law provisions. You agree that any action at law or in equity arising out of or relating to this Service Agreement or your use of the Service shall be filed only in the state and federal courts located in Alameda County, California and you hereby irrevocably and unconditionally consent and submit to the exclusive jurisdiction of such courts over any suit, action or proceeding arising out of or relating to this Service Agreement or your use of the Service.

21. NOTICE

Vivacare may deliver notice to you under this Service Agreement by means of electronic mail, a general notice on the Site, or by written communication delivered by first class U.S. mail to your address on record in your Account information. You may give notice to Vivacare at any time via electronic mail to Vivacare or by letter delivered by first class postage prepaid U.S. mail or overnight courier to the following address:

Vivacare Attn: Ombudsman 1810 6th St. Berkeley, CA 94710 E-Mail: ombudsman@vivacare.com

22. SEVERABILITY

If any provision of these terms and conditions shall be deemed unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these terms and conditions and shall not affect the validity and enforceability of any remaining provisions.

I ACKNOWLEDGE THAT I HAVE READ AND ACCEPT THIS VIVACARE, INC. TERMS OF SERVICE AGREEMENT AND AGREE TO BE LEGALLY BOUND BY ALL OF THE TERMS AND CONDITIONS SET FORTH HEREIN.