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This mVT™ Vision Monitoring Program Agreement (“Agreement”) is made between the customer (“Customer”) prescribed the mVT™ Vision Monitor Test (“Test”) by a licensed physician or optometrist (“Practice”) and Vital Art and Science, LLC, having its principal place of business at 2725 N. Spring Dr., Richardson, TX 75082 (“VAS”).
This Agreement describes the services that VAS will provide in connection with the Test, and sets forth the applicable Fees (as described and defined herein).
Before the Customer is allowed to use the Test the Customer will be asked to acknowledge on the Test that he or she has read, understood, and agreed to the terms and conditions contained in this Agreement. A copy of this agreement is a available for review online at http://myvisiontrack.com/agreement.
The Customer’s acknowledgment of this Agreement on the Device will serve as Customer’s signature which signifies that Customer agrees to be legally bound by the terms and conditions contained in this Agreement.
Questions related to this Agreement may be directed to VAS via e-mail at firstname.lastname@example.org or by phone at 1-844-267-8020 from 8:00am-5:00pm (CST), Mon-Fri.
Customer acknowledges understanding of the FDA cleared labeling for the Device. The mVT™ is intended for the detection and characterization of central 3 degrees metamorphopsia (visual distortion) in patients with maculopathy, including age-related macular degeneration and diabetic retinopathy, and as an aid in monitoring progression of disease factors causing metamorphopsia. It is intended to be used by patients who have the capability to regularly perform a simple self-test at home. The mVT™ is not intended to diagnose; diagnosis is the responsibility of the prescribing eye-care professional. The Test has been cleared for use for monitoring eyes that do not have any other existing pathology which could compromise testing data.
The Customer’s credit card information will be collected either at the Practice when the customer receives the prescription or online at the VAS website (http://myvisiontrack.com).. Providing credit card information will serve as Customer’s authorization for VAS to bill the credit card provided for the monthly Monitoring Subscription Fees (described below). Authorization for VAS to automatically bill the credit card for the monthly Monitoring Subscription Fees is a recurring authorization and will remain in effect as long as Customer receives the services (“Services”) provided by VAS (described below), unless Customer cancels this authorization. Customer further authorizes VAS to make refunds, if any, directly to the credit card provided. Total charges will appear on Customer’s monthly credit card statement. Customer may cancel this automatic billing authorization at any time by contacting VAS.
The Customer shall be charged a recurring Monitoring Subscription Fee. Specific costs for different time periods is detailed on our website. The Customer will be charged at the specified intervals irregardless of how often they test during that interval. This fee includes the Services provided hereunder by VAS and any fees which may be paid to the Practice. Customer agrees to pay the recurring Monitoring Subscription Fee on the first day of each interval during the Cumulative Period. Customer is responsible for the recurring Monitoring Subscription Fee and any applicable taxes during the entire Cumulative Rental Period, whether or not Customer uses the Test.
The Services provided by VAS to the Customer shall include: (a) electronic transmission of mVT™ vision monitor test data (“Test Results”) from Customer’s device to the database located on VAS’s secured server; (b) maintenance, during the Cumulative Rental Period and such additional period thereafter as required by law, of a proprietary database on which Customer’s data is electr onically catalogued and stored; (c) technical support through a toll free customer support helpline (“Helpline”) between the hours of 8 AM and 8 PM Eastern Time, Monday through Friday. Customer may call the Helpline at 1-888-910-2020 to receive technical support for the Test, which shall include, without limitation, troubleshooting and device use assistance; and (d) provision to the Practice of access to Customer’s Test Results stored on VAS’s secured server. In addition to these Services, VAS may, but shall not be obligated to, periodically remind Customer by telephone or email if Test Results are not received in VAS's database for more than seven (7) consecutive days. Upon request, and by providing a medical information release from the practice, VAS will provide access to the Customer to view Customer’s Test Results stored on VAS’s secured server, or email or mail Customer a report on Customer’s Test Results. (e) In the case of a statistically significant change in test scores, VAS will inform the practice immediately.
VAS grants, for the duration of the Cumulative Rental Period, a limited, non-exclusive, non-transferable, and revocable license to use the software embedded in the Test and in those areas of VAS's website designated for the Customer (“VAS Software”) and accompanying Documentation, each of which is deemed, for the purposes of this Agreement, to be an integral part of the Test . Customer acknowledges that all VAS Software is proprietary to VAS, title thereto shall at all times be vested in VAS, and except as provided herein, no right, title or interest therein shall pass to Customer. Customer shall not modify, reverse-assemble or decompile any VAS Software in whole or in part, or sell, transfer or otherwise make available any VAS Software.
During the Cumulative Rental Period, Customer shall promptly notify VAS when Customer becomes aware of or reasonably should have become aware of: (a) any change or deterioration in Customer’s eye condition; (b) any amendment to the prescription for monitoring one eye instead of two eyes; (c) any other change or deterioration in Customer’s health that could reasonably restrict Customer’s use of the Device; (d) any change in the Customer’s contact information, in which case Customer shall also provide VAS with the new contact information; (e) the termination of her/his relationship with the Practice (collectively, the “Update Notice”). Customer’s failure to provide VAS with an Update Notice, as required under this Section, is a material breach of this Agreement that gives VAS the right to terminate this Agreement, keep all Fees previously paid by Customer, and collect all Fees due from Customer as of the date VAS notifies Customer of the termination.
Customer acknowledges that a portion of Customer’s monthly Monitoring Subscription Fee may be paid to the Practice by VAS for review of Customer’s test data, as instructed by the Practice.
The following limited warranty is made available solely to the Customer identified in this Agreement for the duration of the Cumulative Rental Period. Customer shall telephone the Helpline at 1-888-910-2020 to resolve any technical difficulty, failure, or malfunction of the Test. This limited warranty gives Customer specific legal rights, and Customer may also have other rights which vary from state to state. Notwithstanding the foregoing, if any replacements or services are required in whole or in part attributable to (i) the negligence, wrongful acts or omissions of Customer, (ii) failure to use the Test in accordance with the Documentation, (iii) any failure by Customer to comply with its obligations hereunder, (iv) accident or disaster, including effect of water, wind, lightning, or (v) vandalism or burglary; support, maintenance (if available), and/or replacement of a Faulty Device will be performed at Customer's expense, up to an amount of Three Hundred Dollars (US $300.00).
EXCEPT AS EXPRESSLY SET FORTH HEREIN AND EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, VAS DISCLAIMS ALL WARRANTIES WHETHER WRITTEN, ORAL OR STATUTORY, APPLICABLE OR RELATING TO THE DEVICE, SERVICES, AND RELATED TECHNICAL OR OTHER ADVICE OR REPRESENTATIONS, INCLUDING WITHOUT LIMITATION, THEIR ACCURACY OR RELIABILITY, THE IMPLIED WARRANTY OF MERCHANTABILITY, THE IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, AND THE WARRANTY AGAINST INTERFERENCE AND INFRINGEMENT. EXCEPT AS SPECIFICALLY PROVIDED HEREIN, THE SERVICES (INCLUDING THE VAS DATABASE AND THE ABILITY TO TRANSMIT, STORE, AND ACCESS TEST RESULTS) ARE PROVIDED “AS IS” AND “AS AVAILABLE,” WITHOUT WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED. TRANSMISSION OF TEST RESULTS MAY VARY BASED UPON THE EQUIPMENT AND SERVICE PROVIDER USED. TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, VAS DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF PERFORMANCE, SERVICE, ACCURACY, OMISSIONS, COMPLETENESS, CURRENTNESS AND DELAYS. VAS DOES NOT WARRANT THAT ABILITY TO TRANSMIT TEST RESULTS OR ANY ACCESS TO THE VAS DATABASE WILL BE UNINTERRUPTED, SECURE, COMPLETE OR ERROR FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SERVER(S) THAT MAKE THE SERVICES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. CUSTOMER ACKNOWLEDGES THAT USE OF THE DEVICE AND RELATED SERVICES ARE NOT ERROR-FREE, AND THAT CUSTOMER MAY ENCOUNTER HUMAN AND MACHINE ERRORS, DELAYS, INTERRUPTIONS AND LOSSES, INCLUDING THE INADVERTENT LOSS OF TEST RESULTS. THEREFORE, CUSTOMER HEREBY RELEASES, FOREVER DISCHARGES AND HOLDS VAS HARMLESS FROM AND AGAINST ANY DAMAGES, LIABILITIES, COSTS OR EXPENSES, INCLUDING, WITHOUT LIMITATION, LOSS TO OR CORRUPTION OF TEST RESULTS, OR LOSS OR DAMAGE TO ANY OTHER PROPERTY OF CUSTOMER THAT ARISES IN WHOLE OR IN PART FROM CUSTOMER’S USE OF THE DEVICE AND SERVICES AND WHICH COULD NOT HAVE BEEN AVOIDED BY VAS BY EXERCISING REASONABLE CARE IN THE PERFORMANCE OF ITS OBLIGATIONS UNDER THIS AGREEMENT.
EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, IN NO EVENT WILL VAS BE LIABLE FOR ANY ADVERSE CONSEQUENCES, LIABILITY, CLAIM, LOSS, INJURY, DAMAGE OR EXPENSE OF ANY KIND (INCLUDING LOST PROFITS AND SAVINGS AND LOSS OF, DAMAGE TO OR CORRUPTION OF DATA) WHETHER DIRECT, INDIRECT, SPECIAL OR CONSEQUENTIAL, ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT, ORDER FORM, AND/OR THE USE, PERFORMANCE OR MAINTENANCE OF THE DEVICE AND/OR THE SERVICES OR THE FAILURE OF THE DEVICE TO OPERATE CORRECTLY OR AT ALL OR DELAY, FAULTINESS OR FAILURE OF THE SERVICES, OR MISUSE, FAILURE TO USE, OR DISCONTINUATION OF USE OF THE DEVICE. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, VAS’S ENTIRE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDY FOR DAMAGES FROM ANY CAUSE WHATSOEVER, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR TORT, ARISING UNDER THE AGREEMENT OR RELATED TO THE DEVICE AND/OR THE SERVICES, SHALL NOT EXCEED AN AMOUNT EQUAL TO THE FEES PAID BY CUSTOMER PURSUANT TO THIS AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO CUSTOMER.
TO THE FULLEST EXTENT PERMITTED BY LAW, AND AS SEPARATELY BARGAINED-FOR CONSIDERATION TO VAS, CUSTOMER HEREBY WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, PROCEEDING OR COUNTERCLAIM OF ANY KIND ARISING OUT OF OR RELATING TO THIS AGREEMENT OR VAS’S CONDUCT IN RESPECT OF THIS AGREEMENT.
Unless specifically provided otherwise, all notices hereunder will be in writing and shall be given by and be deemed received by the receiving party (i) if sent by a delivery service, on the date confirmed as the actual date of delivery by such service; (ii) if sent by registered mail within five (5) days of mailing; or (iii) if sent by e-mail or fax with an electronic written confirmation of receipt, on the next business day after transmission, if not transmitted on a business day, or on the day of transmission, if transmitted on a business day.
This Agreement or any part hereof cannot be assigned or transferred by Customer and shall be binding upon and inure to the benefit of the parties hereto, their legal representatives, permitted successors and assigns. Except as prohibited by applicable law, no action, regardless of form, arising out of the Agreement may be brought by Customer more than two (2) years after the cause of action has arisen. The obligations of Customer under the Agreement shall survive the termination of the Agreement to the extent required for their full observance and performance. The captions in the Agreement are for convenience only and shall not define or limit any of the terms hereof. THE AGREEMENT SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS WITHOUT GIVING EFFECT TO THE PRINCIPLES OF CONFLICTS OF LAWS THEREOF.