EYEMED PROCESSING SYSTEM
TERMS AND CONDITIONS

Welcome to the EyeMed Online Claims System (“System”) provided by EyeMed Vision Care LLC (“EyeMed,” “we,” “us,” or “our”).

The System is intended to benefit the EyeMed network providers and authorized agents (“Providers”) by providing access to review information related EyeMed members (“Members”) and Providers for use which includes addressing inquires, facilitating claim submissions, facilitating lab material submissions, and reviewing disbursement information.

These Terms and Conditions (“Terms”), and the other documents referenced in these Terms, together form a binding legal agreement (“Agreement”) between you (“you” and “your”) and EyeMed as of the date you first access the System or accept these Terms, including electronically (the “Effective Date”). You and EyeMed are each a “party” to the Agreement and together are the “parties” to this Agreement.

PLEASE READ THIS AGREEMENT CAREFULLY. ALL USE OF THE SYSTEM AND ALL DATA AND INFORMATION AVAILABLE THROUGH THE SYSTEM ARE SUBJECT TO YOUR COMPLIANCE WITH THIS AGREEMENT. BY ACCESSING OR USING THE SYSTEM, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY THE AGREEMENT, YOU MAY NOT ACCESS OR USE THE SYSTEM.

1. DEFINITIONS. Any capitalized term used but not defined in this Agreement shall have the meaning given to it in your Provider Agreement. All other capitalized terms shall have the meanings given to them herein.

2. ELIGIBILITY. The System is for use only by EyeMed Providers. You represent and warrant to EyeMed that you are and will remain a Provider in good standing with EyeMed and have entered into and will maintain a valid Eye Care Professional Agreement in place with EyeMed (“Provider Agreement”). If at any time your Provider Agreement with EyeMed is terminated or expires, this Agreement will automatically terminate and you are no longer permitted to access or use the System.

3. RELATION TO PROVIDER AGREEMENT. Under your Provider Agreement, you are permitted to access certain services relating to the electronic submission of claims for processing and reimbursement by EyeMed (“Services”). EyeMed provides the System as a means to access certain of the Services under your Provider Agreement (“System Services”). This Agreement applies to the System and your access to and use of the System Services through the System. This Agreement does not affect the relationship of the parties under your Provider Agreement, and your Provider Agreement remains in effect and applicable to the Services accessed and received outside of the System. If the terms of this Agreement conflict with the terms of your Provider Agreement with respect to the System or your use of the System, the terms of this Agreement shall prevail. If the terms of this Agreement conflict with the terms of your Provider Agreement with respect to the System Services or any other Services covered by your Provider Agreement, the terms of your Provider Agreement shall continue to prevail.

4. TERM. The term of this Agreement will begin on the Effective Date and will continue until terminated as set forth herein.

5. System ACCESS. During the term of this Agreement, and provided that you remain in compliance with this Agreement and your Provider Agreement, EyeMed will permit you to access and use the System and the System Services solely for your own professional use in accordance with the terms of this Agreement and your Provider Agreement. Your right to access and use the System is non-exclusive, non-transferrable, and non-sublicensable. Except as expressly stated in this Section, EyeMed grants you no rights or licenses to access or use the System or any System Services, whether by implication, estoppel, or otherwise.

6. System ACCOUNT. Before you can access the System or any System Services, you will be required to establish an account for the System (your “Account”). All Accounts are issued at the sole discretion of EyeMed. Your Account and the user credentials for your Account (“Account Credentials”) are unique to you. Your Account is for your own use and your Account Credentials may be used only by you alone. You may not transfer your Account to someone else. You also may not provide your Account Credentials to anyone else or give a third party access your Account. You will ensure the security and confidentiality of your Account Credentials and will notify EyeMed immediately if your Account Credentials are lost, stolen or otherwise compromised. You are solely responsible for your Account and all use of the System through your Account. You are fully responsible for all actions taken through your Account (or using your Account Credentials) and for any liabilities and damages incurred through the use of your Account (or your Account Credentials), whether lawful or unlawful. In connection with establishing your Account and accessing the System, you will be asked to submit certain information (“Account Information”). You agree that (a) all Account Information you provide will be true and complete, and (b) you will promptly update your Account Information to keep it accurate and current. You may not (i) select or use Account Credentials of another person or entity with the intent to impersonate that person or entity; and (ii) use Account Credentials that EyeMed, in its sole discretion, deems offensive or misleading.

7. RESTRICTIONS. All access to and use of the System must be solely as expressly permitted herein. You acknowledge that the System and the software, hardware, and other technology used to provide the System and the System Services (collectively, the “System Technology”), constitute the valuable IPR (as defined below) of EyeMed. As an express condition to the rights granted to you under this Agreement, you will not and you will not permit any third party to: (1) use or access the System Technology or any portion thereof for any purpose except as expressly provided in this Agreement; (2) modify, adapt, alter, translate, or create derivative works from the System Technology; (3) distribute, lend, loan, lease, license, sublicense, transfer, or make available the System Technology or any rights in or to the System Technology to any third party; (4) access or use the System Technology in violation of your Provider Agreement or in any unlawful, illegal, or unauthorized manner; (5) access or use the System Technology in any manner that could damage, disable, overburden or impair the System Technology; (6) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code, structure, design, or method of operation for the System Technology; (7) circumvent or overcome (or attempt to circumvent or overcome) any technological protection measures intended to restrict access to the System Technology; (8) interfere in any manner with the operation of the System Technology or attempt to gain unauthorized access to the System Technology; (9) use automated scripts or processes to collect information from or otherwise interact with the System Technology, including screen scrapping, bots, and other automated scripts; (10) use the System, System Services, or System Data for patient recalls, Customer Relationship Management or associated systems, or other marketing activities; or (11) alter, obscure or remove any copyright notice, copyright management information or proprietary legend contained in or on any System Technology.

8. MODIFICATIONS. EyeMed reserves the right to modify or release new versions of System and the System Services at any time by making those modifications or new versions available to you as part of System or the System Services.

9. SUPPORT. You are solely responsible for all support relating to your use of System and the System Services. Unless stated in your Provider Agreement or a separate support agreement between EyeMed and you, EyeMed is under no obligation to provide you with any support relating to System or any System Services, provided that EyeMed may provide support to you if deemed necessary or appropriate by EyeMed.

10. NO ADDITIONAL CONSIDERATION. There are no separate fees payable for access to System or the System Services under this Agreement in addition to those amounts payable under your Provider Agreement, the receipt and sufficiency of which you acknowledge and agree serve as adequate consideration under this Agreement

11. OWNERSHIP. EyeMed retains all right, title, and interest in and to the System Technology and all System Services, any updates, upgrades, enhancements, modifications and improvements thereto, created by either party, either alone or with the other party or any third party (“Improvements”), and all intellectual property and proprietary rights therein or relating thereto throughout the world, including all copyrights, trademarks, trade secrets, patents (and patent applications), moral rights, rights in data and databases, and other intellectual property and proprietary rights throughout the world (“IPR”). You receive no ownership interest in or to any of the foregoing, and no rights or licenses are granted to you to access or use any of the foregoing, except for the rights expressly granted to you under this Agreement. You agree to and hereby do assign to EyeMed any and all right, title or interest in or to any Improvements, and all IPR therein or relating thereto, that you may acquire at any time. The names and logos of EyeMed and those of its affiliates, providers, and licensors are trademarks of EyeMed or such affiliates, providers, or licensors, as applicable, and no right or license is granted to you to use them.

12. TERMINATION AND SUSPENSION. This Agreement will terminate upon any termination or expiration of your Provider Agreement. This Agreement will also terminate as specified below. Termination of this Agreement will not affect your Provider Agreement, unless the grounds for termination of this Agreement are also grounds for termination of your Provider Agreement. Either party may terminate this Agreement if the other party materially breaches this Agreement and fails to remedy such breach within thirty [30] days after receiving notice of the breach from the other party. In addition to any termination of this Agreement, EyeMed may suspend your access to any part of System (or any System Services through the System) at any time if EyeMed in its sole discretion deems such suspension reasonable to prevent any breach of this Agreement or applicable law or any damage, injury, or harm to EyeMed, the System Technology, any other EyeMed Provider, or any third party. EyeMed may also terminate this Agreement upon notice if EyeMed ceases offering the System or replaces the System with any new system or platform. Upon any termination or expiration of this Agreement: (a) all rights granted to you hereunder will immediately terminate; (b) EyeMed may cease providing you with access to the System (and any System Services through the System); (c) you will cease all use of the System (and all System Services through the System); and (d) you will return to EyeMed or (if so notified by EyeMed) destroy, all Confidential Information in your possession or control. Upon the request of EyeMed, you will certify in writing to your compliance with this Section. The relevant portions of Sections 1, 7, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, and 26 will survive termination of this Agreement for any reason.

13. REPRESENTATIONS AND WARRANTIES. You represent, warrant, and covenant to EyeMed that: (1) You will maintain all rights, power, and authority necessary to enter into this Agreement and perform all of your obligations under this Agreement; (2) Your use of the System and the System Services through the System will be at all times in compliance with this Agreement and applicable law; (3) Your use of the System Services will be at all times in compliance with your Provider Agreement; (4) Your use of the System and the System Services will not violate, and will not cause EyeMed to violate, any federal, state, or local laws, rules, or regulations or the rights of any third party; and (5) except as set forth herein, you will obtain all rights, licenses, permits, and other approvals required for your use of and access to the System (and the System Services through the System) and your performance under this Agreement.

14. DISCLAIMER.
14.1 NO PROFESSIONAL ADVICE.THE SYSTEM AND THE ONLINE CLAIM SYSTEM SERVICES DO NOT PROVIDE VISION OR OTHER MEDICAL OR PROFESSIONAL ADVICE AND ARE NOT INTENDED TO BE A SUBSTITUTE FOR VISION OR OTHER MEDICAL OR PROFESSIONAL ADVICE, DIAGNOSIS, TREATMENT OR RECOMMENDATIONS. ALL DATA, INFORMATION, AND CONTENT MADE AVAILABLE THROUGH THE SYSTEM AND THE ONLINE CLAIM SYSTEM SERVICES IS FOR INFORMATIONAL PURPOSES OR GENERAL GUIDANCE ONLY. YOUR USE OF THE SYSTEM AND THE SYSTEM SERVICES DOES NOT CREATE A PROFESSIONAL RELATIONSHIP WITH EYEMED AND DOES NOT CREATE ANY PRIVACY INTERESTS OTHER THAN THOSE DESCRIBED HEREIN OR IN YOUR PROVIDER AGREEMENT. EYEMED DOES NOT RECOMMEND OR ENDORSE ANY SPECIFIC PHYSICIANS, PRODUCTS, PROCEDURES, OPINIONS OR OTHER CONTENT THAT MAY BE AVAILABLE THROUGH THE SYSTEM OR SYSTEM SERVICES. YOUR RELIANCE ON ANY CONTENT APPEARING ON THE SITE IS SOLELY AT YOUR OWN RISK.

14.2 NO ADDITIONAL WARRANTIES. ALL SYSTEM TECHNOLOGY (INCLUDING THE SYSTEM AND ALL SYSTEM SERVICES) IS PROVIDED BY EYEMED AND ITS LICENSORS AND PROVIDERS ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY REPRESENTATIONS, WARRANTIES OR COVENANTS OF ANY KIND. EYEMED EXPRESSLY DISCLAIMS, AND YOU DISCLAIM ANY RELIANCE ON, ALL REPRESENTATIONS, WARRANTIES AND COVENANTS, WHETHER EXPRESS OR IMPLIED, REGARDING THIS AGREEMENT AND THE SYSTEM OR ANY SYSTEM TECHNOLOGY, INCLUDING ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY EYEMED OR ITS AGENTS OR REPRESENTATIVES WILL CREATE ANY REPRESENTATIONS, WARRANTIES OR COVENANTS UNLESS CONFIRMED IN WRITING BY EYEMED AS AN AMENDMENT TO THIS AGREEMENT.

15. CERTAIN LIABILITIES. You will indemnify, hold harmless, and defend EyeMed, its affiliates and subsidiaries, and each of their respective officers, directors, employees, contractors, and agents from and against any damages, liabilities, losses, costs and expenses (including reasonable attorneys’ fees) incurred in connection with or as a result of: (1) your use of or access to the System and the System Services; (2) your breach of any provision of this Agreement; or (3) damage to property or injury to or death of any person directly or indirectly caused by you. EyeMed agrees to give you prompt notice of any claim subject to this Section.

16. LIMITATION OF LIABILITY. IN NO EVENT WILL EYEMED BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL LOSSES OR DAMAGES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THE SYSTEM, ANY SYSTEM SERVICES, OR THIS AGREEMENT, INCLUDING ANY LOST, CORRUPTED OR ALTERED DATA OR INFORMATION, LOSS OF USE OF DATA OR INFORMATION, RECOVERY OF DATA OR INFORMATION, OR LOSS OR INTERRUPTION OF BUSINESS OR REVENUE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES AND WHETHER OR NOT SUCH LOSSES OR DAMAGES ARE FORESEEABLE. THE MAXIMUM CUMULATIVE LIABILITY OF EYEMED RELATING TO THE SYSTEM, ANY SYSTEM SERVICES, OR THIS AGREEMENT WILL UNDER NO CIRCUMSTANCES EXCEED THE COMPENSATION PAID TO EYEMED UNDER THIS AGREEMENT IN THE THREE [3] MONTHS PRIOR TO THE EVENTS GIVING RISE TO SUCH LIABILITY. IN JURISDICTIONS WHERE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES IS NOT PERMITTED, EACH PARTY’S LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.

17. DATA.
17.1 Your Data. The data and information you provide or make available through the System or when accessing the System Services through the System, including all claims data (“Your Data”), is subject to your Provider Agreement. This Agreement does not limit the obligations or responsibilities of either party under your Provider Agreement regarding Your Data and each party remains responsible for its use and processing of Your Data as specified in your Provider Agreement. Without limiting the foregoing, EyeMed may rely upon the accuracy and completeness of Your Data and is not responsible if any of Your Data is inaccurate and incomplete. You will obtain all rights, authorizations, consents, and permissions necessary to provide Your Data to EyeMed through the System and to permit the processing of Your Data through the System and the System Services under this Agreement. You will notify EyeMed promptly of any unauthorized submission of Your Data through the System. Except as may be specified in your Provider Agreement, EyeMed is not responsible or liable for any deletion, correction, destruction, damage, loss, or failure with respect to Your Data. Subject to your Provider Agreement, EyeMed may take remedial action if Your Data violates this Agreement, provided that EyeMed is under no obligation to review Your Data for accuracy, completeness, or potential liability.

17.2 System Data. As between the parties, any data and information provided or made available to You through the System or the System Services, excluding only Your Data (“System Data”), is the property of EyeMed and its data providers. You will request and obtain System Data through the System only as permitted under the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) for treatment, payment, and healthcare operations purposes related to the End User to which such System Data relates and you will access, use, disclose, and process System Data solely for such purpose, at all times only as permitted by the Provider Agreement. Except as may be expressly provided in your Provider Agreement, all System Data is provided for informational purposes only and you are solely responsible for verifying the accuracy, completeness, and applicability of all System Data before using or relying rely upon any System Data. Except as may be expressly permitted in this Agreement or your Provider Agreement, You will not, and will not permit any third party to: (a) alter, modify, reproduce, or create derivative works of any System Data; (b) distribute, sell, resell, lend, loan, lease, license, sublicense, or transfer any System Data; (c) store or retain any System Data, including for purposes of assembling a database or dataset based on or containing System Data; or (d) otherwise access, use, disclose, or process System Data. You will not alter, obscure or remove any copyright, trademark or any other notices that are provided on or in connection with any System Data. You will implement reasonable and appropriate information security safeguards to prevent access, use, disclosure, or processing of System Data other than as permitted under this Agreement. As part of the foregoing, You will maintain a written information security program, including administrative, physical, and technical safeguards designed to protect the confidentiality, security, and integrity of System Data and to prevent any unlawful, unauthorized, or improper access, use, disclosure, or processing thereof or any breach or compromise of Your information security safeguards (“Data Incident”). You will promptly, but in no case less than two [2] business days, notify EyeMed of any suspected or actual Data Incident. You will maintain policies and procedures for remedying and mitigating the effects of any Data Incident. You will fully cooperate with EyeMed in the investigation, mitigation, and remediation of any Data Incident. You will comply with any request and follow any instruction received from EyeMed as necessary for EyeMed or you to comply with applicable law or regulation with respect to any System Data or the access, use, disclosure, or processing thereof, including any valid request by any Member or other third party to restrict or limit access to, delete, provide access to, amend, or provide an accounting with respect to System Data. Notwithstanding the foregoing, nothing in this Section is intended to limit the rights of any End User to utilize any System Data regarding that End User as allowed under applicable law.

18. CONFIDENTIALITY. For purposes of this Agreement, “Confidential Information” means the System Data and all other System Technology, and all other documentation, information, data, and materials made available by EyeMed regarding the System Technology and the existence and availability thereof, regardless of form, including all copies thereof. You will use the Confidential Information only if expressly permitted to do so by EyeMed herein or in writing and, if not permitted to do so, will not use such Confidential Information. You may disclose the Confidential Information only to those of your employees who have a need to know the Confidential Information for purposes of the use of the System and the System Services hereunder and who are bound by a legal obligation of confidentiality at least as protective of the Confidential Information as this Agreement. You will not otherwise disclose the Confidential Information without EyeMed’s prior written consent. You will treat all Confidential Information with the same degree of care as you treats your own confidential information which, in no event, will be less than reasonable care.

19. FEEDBACK. Any information, content, or materials you provide to us regarding the System, including any feedback, comments, or suggestions relating to the use, operation, performance, functionality, or features of the System or any System Services (“Feedback”) is entirely voluntary. We will be free to use any Feedback as we see fit for any purpose and without any without notice, payment, or other obligation to you. All use of any Feedback will be at our sole discretion.

20. PUBLICITY. All media releases or other public announcements by your that reference this Agreement or the System or the System Services, whether generally or by name, shall be coordinated with and approved in advance and in writing by EyeMed prior to the release thereof; provided, however, that nothing in this Section shall be construed to limit your right to issue such disclosures as are reasonably believed by your legal counsel to be required by law. You shall not, without EyeMed’s prior written consent, use or display EyeMed’s logos, trademarks, service marks, or any variations thereof, including in any of its promotional, advertising, or other materials.

21. NOTICES. Any notice or other communication required or permitted under this Agreement shall be made as specified by your Provider Agreement, provided that EyeMed may provide notices to you regarding the System and the System Services either through your Account or by electronic mail transmission, any such electronic mail deemed to be received when confirmed by Provider.

22. GOVERNING LAW AND VENUE. This Agreement will be governed by the laws of the state specified in your Provider Agreement. If no such state is specified in your Provider Agreement, this Agreement will be governed by the laws of the State of Ohio (USA), without regard to conflicts of law principles thereof. The parties acknowledge and agree that the federal and state courts specified in your Provider Agreement will have sole and exclusive jurisdiction over any disputes arising hereunder. If no such courts are specified in your Provider Agreement, the parties acknowledge and agree that the federal and state courts located in Hamilton County, Ohio (USA) will have sole and exclusive jurisdiction over any disputes arising hereunder. The parties irrevocably submit to the personal jurisdiction of such courts.

23. ASSIGNMENT You may not assign this Agreement in whole or in part, or transfer or delegate any of your rights or obligations under this Agreement, to any third party, whether by assignment, sale, merger, reorganization, operation of law, or otherwise, without the prior written consent of EyeMed. Notwithstanding the foregoing, in the case you validly assign your Provider Agreement to a third party, this Agreement will be deemed automatically assigned to the same third party receiving such assignment of your Provider Agreement. For the purposes of this Agreement, any change of control of your organization will be deemed an assignment. EyeMed may assign this Agreement, with or without notice to you, to any affiliates, successors, or assigns. Any assignment in violation of the foregoing will be null and void, and will be considered a breach of this Agreement.

24. INJUNCTIVE RELIEF. You acknowledge and agree that due to the unique nature of the System Technology, there may be no adequate remedy at law for any breach of its obligations hereunder, that any such breach, including, in particular, any unauthorized use or release of the System Technology or any System Data or Confidential Information may allow you or third parties to unfairly compete with EyeMed, resulting in irreparable harm to EyeMed. Therefore, upon any such breach of this Agreement or any threat thereof, EyeMed, in addition to whatever remedies that EyeMed might have at law, will be entitled to obtain injunctive or other appropriate equitable relief against you in any court of competent jurisdiction without the need to post a bond.

25. ENTIRE AGREEMENT This Agreement is the complete and exclusive agreement between you and EyeMed regarding, and supersedes all oral or written agreements or understandings between the parties with respect to, the System and the System Technology and the use of and access to the System and the System Services through the System. EyeMed may, in its sole discretion, modify this Agreement from time to time. EyeMed will use commercially reasonable efforts to provide notice of any material modifications to this Agreement. Notice may be provided to you directly through the System or through any other form of notice permitted hereunder or under your Provider Agreement. Your continued access to the System or the System Services following such modification constitutes your acceptance of, and agreement to be bound by, any modified Agreement. Except for the foregoing, this Agreement may be amended or modified only by a writing signed by both parties.

26. GENERAL. The waiver of a breach of any provision of this Agreement will not operate or be interpreted as a waiver of any other or subsequent breach. If any provision of this Agreement is held by an arbitrator or a court of competent jurisdiction to be unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions of this Agreement will continue in full force and effect. EyeMed will not be held responsible for failure or delay in the performance of any obligation under this Agreement if such failure or delay is beyond its reasonable control. The parties are independent contractors, and nothing in this Agreement will be construed as creating an employer-employee relationship, a partnership, or a joint venture between the parties. Neither party is an agent of the other and neither party is authorized to make any representation, contract, or commitment on behalf of the other party. No term of this Agreement will be construed to confer any third-party beneficiary rights on any non-party. Each and every right and remedy hereunder is cumulative with each and every other right and remedy herein or in any other agreement between the parties or under applicable law. The System and other System Technology are subject to U.S. export control laws and may be subject to export or import regulations in other countries. You will strictly comply with all such laws and acknowledges that it has the responsibility to obtain such licenses to export, re-export or import as may be required. The words “include,” “includes” and “including” means “include,” “includes” or “including,” in each case, “without limitation.” You expressly waive any applications of the U.N. Convention on Contracts for the International Sale of Goods with respect to the performance or interpretations of this Agreement.

April 8th, 2021