Scope of The Terms and Conditions.
No Provision of Medical Advice
The services available on the Platform may change from time to time at our sole discretion and without prior notice. We will not be liable if, for any reason, all or any part of the Platform is unavailable at any time or for any period of time. To access the Platform or any of the resources it offers, you will be asked to provide certain registration details and additional information. You affirm that all you provide on the Platform is true, current, and complete.
- Your user name, password, and all other pieces of information utilized as part of our security procedures, must be treated as confidential, and you may not disclose it to any other person or entity. You shall notify us immediately if you become aware of the potential for or any actual unauthorized access to or use of your user name or password or any other breach of security.
- We have the right to disable any user name, password, or other identifier, at any time in our sole discretion for any or no reason, including if, in our opinion, you have violated any provision of these Terms.
- Intellectual Property.
Copyright, trademark, patent, and other applicable laws protect the services and materials appearing on the Platform. The Berry name and all related names, logos, product and service names, designs, and slogans are trademarks of Berry or its affiliates or licensors. You must not use such marks without first obtaining Berry’s written permission. All other names, logos, product and service names, designs, and slogans on this Platform are the trademarks of their respective owners.
Berry shall retain all ownership rights in the Platform, the technology, software, hardware, products, processes, algorithms, user interfaces and know-how related to the Platform and all work developed or created by Berry during the course of providing support or the Platform to you ("Work Product").
Contact and Account Information
Use of the Platform
You represent and warrant that when using the Platform you will comply with all applicable laws and regulations, including, but not limited to, the Health Insurance Portability and Accountability Act and its implementing regulations and other federal and state privacy and data security laws, and you will not provide any information, including protected health information, to us for which you do not have the required authorizations or consents.
Furthermore you agree not to use the Platform:
- For the purpose of exploiting, harming, or attempting to exploit or harm minors in any way.
- To send, knowingly receive, upload, download, use, or re-use any material that is deceptive, untrue, misrepresentative, or illegal.
- To impersonate or attempt to impersonate Berry, a Berry employee, another user, or any other person or entity.
- To engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Platform, or which, as determined by us, may harm Berry or users of the Platform, or expose them to liability.
- To use the Platform to intentionally send or store infringing or unlawful material or material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs.
- To attempt to gain unauthorized access to any portion or feature of the Platform, to any other systems or networks connected to the Platform, to any of our servers, or to any of the services offered on or through the Platform, including but not limited to by hacking, password “mining”, or any other unauthorized means;
- To probe, scan, or test the vulnerability of the Platform or any network connected to the Platform or bypass the authentication measures on the Platform or any network connected to the Platform;
- To use any automated means to collect information or content from or otherwise access the Platform, including but not limited to through the use of technical tools known as robots, spiders, or scrapers, without our prior permission;
- To harvest or otherwise collect and store information about other users of the Platform, including email addresses;
- To install any software, file, or code that is not authorized by the user of a computer or mobile device or that assumes control of all or any part of the processing performed by a computer or mobile device without the authorization of the user of the computer or mobile device; or
- To attempt to interfere in any way with the proper working of the Platform.
Products on the Platform
Product descriptions are provided by the laboratories or manufacturers of the tests available through the Platform. We work with the manufacturers to confirm that the test descriptions are accurate, but we cannot guarantee that they are accurate, complete, or up-to-date. Including a product description on the Platform does not mean that product is or will be available at any given time or at any specific location.
Prices and Payment Terms
All prices, discounts, and promotions posted on this Platform are subject to change without notice. The price charged for a product or service will be the price in effect at the time the order is placed and will be set out in your order confirmation. We strive to display accurate price information, however we may, on occasion, make inadvertent typographical errors, inaccuracies or omissions related to pricing and availability. We reserve the right to correct any errors, inaccuracies, or omissions at any time and to cancel any orders arising from such occurrences.
We may offer from time to time promotions on the Platform that may affect pricing and that are governed by separate terms and conditions. If there is a conflict between the terms for a promotion and these Terms, the promotion terms will govern.
Terms of payment are within our sole discretion and, unless otherwise agreed by us in writing in advance, payment must be received by us before our acceptance of an order. We accept credit and debit cards for all purchases and HSA and FSA payment methods for eligible purchases. You may also apply for an extended payment plan. You represent and warrant that
- the credit card or other payment information you supply to us is true, correct and complete,
- you are duly authorized to use such credit card or payment method for the purchase,
- charges incurred by you will be honored by your credit card company, and
- you will pay charges incurred by you at the posted prices, including shipping and handling charges and all applicable taxes, if any, regardless of the amount quoted on the Platform at the time of your order.
Registration and Passwords
The Platform may require you to register or obtain a password prior to permitting you to access certain portions of the Platform. You acknowledge and agree that you are responsible for maintaining the confidentiality of your login ID and password, and for all uses of your login ID, password, and/or Account. You agree to notify us immediately of any unauthorized use of your login ID, password, or Account, or any other breach of security involving access to the Platform through your Account. You acknowledge that you may be held liable for any loss or harm incurred by us or any other person or entity due to someone else using your login ID, password, or Account as a result of your failing to keep your Account information secure and confidential.
Operation of the Platform
We reserve the right to do any of the following, at any time, at our sole discretion, with or without notice: (i) modify, suspend, or terminate operation of or your access to the Platform, or any portion of the Platform, including but not limited to for your violation of these Terms and Conditions; (ii) modify, change, suspend or terminate the Platform, or any portion of the Platform; and (iii) interrupt the regular operation of the Platform, or any portion of the Platform, as necessary to perform routine or non-routine maintenance, to correct errors, or to make other changes as we deem necessary to the Platform.
Disclaimer of Warranty; Limitation of Liability THE PLATFORM AND ALL MATERIALS, INFORMATION, SOFTWARE, PRODUCTS, TOOLS, AND SERVICES INCLUDED IN OR AVAILABLE THROUGH THE PLATFORM ARE PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. BERRY AND ITS SUPPLIERS DISCLAIM ALL EXPRESS AND IMPLIED WARRANTIES WITH REGARD TO THE PLATFORM AND ALL MATERIALS, INFORMATION, SOFTWARE, PRODUCTS, TOOLS, AND SERVICES INCLUDED IN OR AVAILABLE THROUGH THE PLATFORM, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. YOUR USE OF THE PLATFORM IS AT YOUR OWN RISK. ACCESS TO THE PLATFORM MAY BE INTERRUPTED AND THE MATERIALS, INFORMATION, SOFTWARE, PRODUCTS, TOOLS, AND SERVICES INCLUDED IN OR AVAILABLE THROUGH THE PLATFORM MAY NOT BE ERROR-FREE. NONE OF BERRY, ITS SUPPLIERS, OR ANYONE ELSE INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE PLATFORM OR THE MATERIALS, INFORMATION, SOFTWARE, PRODUCTS, TOOLS, AND SERVICES INCLUDED IN OR AVAILABLE THROUGH THE PLATFORM WARRANTS THAT THE MATERIALS, INFORMATION, SOFTWARE, PRODUCTS, TOOLS, AND SERVICES INCLUDED IN OR AVAILABLE THROUGH THE PLATFORM ARE ACCURATE, RELIABLE, COMPLETE, USEFUL, OR CORRECT; THAT THE PLATFORM WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE PLATFORM ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. PLEASE NOTE THAT SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. CHECK YOUR LOCAL LAWS FOR ANY RESTRICTIONS OR LIMITATIONS REGARDING THE EXCLUSION OF IMPLIED WARRANTIES.UNDER NO CIRCUMSTANCES SHALL BERRY, ITS SUPPLIERS, OR ANYONE ELSE INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE PLATFORM OR THE MATERIALS, INFORMATION, SOFTWARE, PRODUCTS, TOOLS, AND SERVICES INCLUDED IN OR AVAILABLE THROUGH THE PLATFORM BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING LOSS OF DATA, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF, OR INABILITY TO USE, THE PLATFORM. THIS LIMITATION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR OTHER LEGAL THEORY, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN THE EVENT SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF DAMAGES TO THE EXTENT INDICATED ABOVE, OUR LIABILITY IN SUCH JURISDICTIONS SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW.YOU ACKNOWLEDGE AND AGREE THAT THE LIMITATIONS SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THIS AGREEMENT AND THE PLATFORM WOULD NOT BE PROVIDED TO YOU ABSENT SUCH LIMITATIONS.
You agree to indemnify, defend, and hold harmless Berry and its suppliers, and their respective affiliates, subsidiaries, employees, officers, directors, agents, contractors, servants, insurers, and representatives from any liability, loss, claim, suit, damage, judgment and expense (including reasonable attorneys´ fees and expenses) that arise out of or are related to your violation of these Terms and Conditions, your use or misuse of the Platform, or your violation of any third-party rights.
We will not be liable or responsible to you, nor be deemed to have defaulted or breached these Terms, for any failure or delay in our performance under these Terms when and to the extent such failure or delay is caused by or results from acts or circumstances beyond our reasonable control, including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest, national emergency, revolution, insurrection, epidemic, pandemic, lockouts, strikes or other labor disputes (whether or not relating to our workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
If any provision of these Terms is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of these Terms shall remain in full force and effect. Any provision of these Terms held invalid or unenforceable only in part or degree will remain in full force and effect to the extent not held invalid or unenforceable. The parties further agree to replace such invalid or unenforceable provision of these Terms with a valid and enforceable provision that will achieve, to the extent possible, the economic, business, and other purposes of such invalid or unenforceable provision.
These Terms and the resolution of any dispute related to these Terms shall be construed in accordance with the laws of the State of California. Any dispute between Berry and you related to these Terms shall be resolved exclusively by the state and federal courts located in the State of California, County of Los Angeles. The Platform can be accessed only from the United States. Since the laws of each State may differ, you agree that the statutes and laws of the State of California, without regard to any principles of conflicts of law, will apply to all matters relating to your access to or use of the Platform. The information available on this website is subject to U.S. export control laws. The Platform may not be accessed from Cuba, the Crimea region, Iran, North Korea, Syria, or from any other destination embargoed by the United States.
These Terms and Conditions are effective unless and until modified as noted above, or terminated, at any time, by Berry
You will not assign any of your rights or delegate any of your obligations under these Terms without our prior written consent. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves you of any of your obligations under these Terms.
The failure by us to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision. The waiver of any right or provision will be effective only if in writing and signed by a duly authorized representative of Berry.
No Third-Party Beneficiaries
These Terms do not and are not intended to confer any rights or remedies upon any person other than you.
We may provide any notice to you under these Terms by: (i) sending a message to the email address you provide or (ii) by posting to the Platform. Notices sent by email will be effective when we send the email and notices we provide by posting will be effective upon posting. It is your responsibility to keep your email address current and check the Terms prior to using the Platform.
To give us notice under these Terms, you must contact us by personal delivery, overnight courier, or registered or certified mail to Berry, Inc., XXXXXXXXX XXXXXX, Los Angeles, CA XXXXX. We may update the address for notices to us by posting a notice on the Platform. Notices provided by personal delivery will be effective immediately. Notices provided by overnight courier will be effective one business day after they are sent. Notices provided by registered or certified mail will be effective three business days after they are sent.
The order confirmation and these Terms will be deemed the final and integrated agreement between you and us on the matters contained in these Terms.
Healthcare Practitioner Terms of Service
Compliance, Ethics & Credentialing
You are responsible for complying with all applicable requirements and ethical standards for making recommendations to patients and attest that you have the appropriate license to offer any such recommendation. You shall make any necessary disclosures to patients related to your ability to charge patients more than the manufacturer’s suggested retail price (MSRP) for products, including products you order from the Platform. By proceeding with any order you affirm that you are acting in accordance with all licensing and ethical standards applicable to you as a health professional.
Berry is not responsible for notifying you of any of your compliance obligations. Berry will not offer any advice regarding compliance with potentially applicable laws or regulations, or express any opinion regarding whether products are appropriate for your patients.
By using the Platform to place product or service orders for patients, you affirm that you have appropriate authorization or license as applicable to you and your practice of medicine. By placing any order through the Platform, you certify that you are licensed to practice and order lab testing in the location where the care is being provided. We reserve the right to ask you for information needed to verify your identity and qualifications to provide healthcare services (or order lab testing). This may include requirements for you to provide us with your National Provider Identifier (NPI), state license number, or other information as we deem necessary in our sole discretion.
On placing your first order for a patient, you will be required to provide Berry with an e-signature. Berry will then use this e-signature for the specific purposes of generating requisitions for orders you place, having lab companies bill Berry for orders placed by you, registering you under Berry’s account with our partner labs, and receiving your patients’ results for your review. By providing Berry with your e-signature, you consent to these uses of your signature by Berry for all orders placed under your account. You may withdraw your consent at any time by providing notice to Berry at legal@__________.com, and that withdrawal will become effective within ten (10) business days. Upon the processing of the withdrawal of your consent, your account will be deactivated and you will no longer be permitted to place orders through the Platform.
Fees for Products & Statements About Products
For products and services that you obtain via the Platform, you confirm that you will not charge patients more than is permitted under the laws and regulations applicable to you and your practice and/or where the patient resides.
You shall not make any representations, warranties, guarantees, indemnities, commitments, or other similar claims actually, apparently, or seemingly on behalf of Berry, any laboratory or product manufacturer or distributor that are inconsistent with these Terms.
You shall not make any claims regarding the use any Products which do not explicitly appear on the label of products or the product listing on the Platform.
You are exclusively responsible for any statements that you may make regarding the products to patients, including any claims that a product diagnoses or treats specific diseases or conditions that do not explicitly appear on the product label. Berry and its lab, supplier and distributor partners, disclaim any and all liability for any statements that you make that do not appear on the product label.
Business Associate Terms.
If you are a practitioner that is a Covered Entity under HIPAA (or you are an employee or other workforce member of a medical practice or other entity that is a Covered Entity), then
- the Business Associate Terms attached to these Terms (“BA Terms”) apply to you, and
- you hereby agree to the BA Terms, which are incorporated by reference.
- Applicability of these Business Associate Terms
If you are a practitioner that is a Covered Entity or you are an employee or other member of a physician practice or other entity that is a Covered Entity (“Covered Entity”) under the Administrative Simplification section of the Health Insurance Portability and Accountability Act of 1996, the Health Information Technology for Economic and Clinical Health Act and their implementing regulations as amended from time to time (collectively, “HIPAA”), then these Business Associate Terms for Practitioners (these “BA Terms”) are part of the Terms between you and Berry. These BA Terms apply when Berry creates, receives, maintains, transmits, uses or discloses Protected Health Information on behalf of the Covered Entity (“PHI”) as a Business Associate.
If you are a member of the Covered Entity, then you represent and warrant that you are authorized by the Covered Entity to enter into these BA Terms.
To the extent that Berry receives PHI in order to perform activities as a Business Associate, the terms and provisions of these BA Terms shall supersede any conflicting or inconsistent terms and provisions in the Terms to the extent of such conflict or inconsistency.
- Defined Terms
Capitalized terms used in these BA Terms without definition shall have the respective meanings assigned to such terms by HIPAA.
Obligations and Activities of Berry.
Berry agrees to:
- Not Use or Disclose Protected Health Information other than as permitted or required by the Terms or as Required by Law;
- Use appropriate safeguards, and comply with Subpart C of 45 C.F.R. Part 164 with respect to Electronic Protected Health Information, to prevent Use or Disclosure of Protected Health Information other than as provided for by the Agreement;
- Report to Covered Entity any Use or Disclosure of Protected Health Information not provided for by the Agreement of which it becomes aware, including Breaches of Unsecured Protected Health Information as required at 45 C.F.R. § 164.410, and any Security Incident of which it becomes aware;
- In accordance with 45 C.F.R. §§ 164.502(e)(1)(ii) and 164.308(b)(2), if applicable, ensure that any Subcontractors that create, receive, maintain, or transmit Protected Health Information on behalf of the Berry agree to the same restrictions, conditions, and requirements that apply to the Berry with respect to such information;
- Make available Protected Health Information in a Designated Record Set to Covered Entity as necessary to satisfy Covered Entity’s obligations under 45 C.F.R. § 164.524, including furnishing upon Covered Entity’s request or direction an electronic copy of Protected Health Information that is maintained in a Designated Record Set;
- Make any amendment(s) to Protected Health Information in a Designated Record Set as directed or agreed to by the Covered Entity pursuant to 45 C.F.R. § 164.526, or take other measures as necessary to satisfy Covered Entity’s obligations under 45 C.F.R. § 164.526;
- Maintain and make available the information required to provide an accounting of Disclosures to Covered Entity as necessary to satisfy Covered Entity’s obligations under 45 C.F.R. § 164.528;
- To the extent the Berry is to carry out one or more of Covered Entity's obligation(s) under Subpart E of 45 C.F.R. Part 164 (“Privacy of Individually Identifiable Health Information”), comply with the requirements of such Subpart E that apply to the Covered Entity in the performance of such obligation(s);
- Make its internal practices, books, and records available to the Secretary for purposes of determining compliance with the HIPAA Rules;
- Not participate in any Sale of Protected Health Information;
- Not Use or Disclose Genetic Information for underwriting purposes in violation of the HIPAA Rules;
- Comply with the Electronic Transaction Rule and any applicable corresponding requirements adopted by HHS with respect to any Electronic Transactions conducted by Berry on behalf of Covered Entity in connection with the services provided under this Agreement.
Permitted Uses and Disclosures by Berry
- Berry shall not Use or Disclose Protected Health Information relating to Covered Entity, except as expressly permitted under and consistent with this Section 3.
- Berry may Use or Disclose Protected Health Information for the following permissible purposes:
- Berry may use PHI internally for Berry’s proper management and administration or to carry out Berry’s legal responsibilities;
- Berry may disclose PHI to a third party for Berry’s proper management and administration or to carry out Berry’s legal responsibilities, provided that the disclosure is Required by Law or Berry obtains reasonable assurances from the third party to whom the PHI is to be disclosed that the third party will (1) protect the confidentiality of the PHI, (2) only use or further disclose the PHI as Required by Law or for the purpose for which the PHI was disclosed to the third party and (3) notify Your Covered Entity of any instances of which the third party is aware in which the confidentiality of the PHI has been breached;
- Berry may use PHI to provide Data Aggregation services;
- Berry may use PHI to create de-identified health information in accordance with the HIPAA de-identification requirements. Berry may disclose de-identified health information for any purpose permitted by law;
- Berry may use and disclose PHI to request an authorization, consent or other form of permission from an Individual and may use and disclose PHI in accordance with any such permission obtained from an Individual; and
- Berry may use and disclose PHI (including, without limitation, a Limited Data Set) for Research as permitted by HIPAA and other applicable law.
- Berry may Use or Disclose Protected Health Information as Required by Law.
- Berry agrees to make Uses and Disclosures and requests for Protected Health Information consistent with Covered Entity’s Minimum Necessary policies and procedures, a copy of which has been furnished to Berry.
- Berry may not Use or Disclose Protected Health Information in a manner that would violate Subpart E of 45 C.F.R. Part 164 if done by Covered Entity.
Notification of Breach
- If Berry becomes aware of a use or disclosure of PHI in violation of these BA Terms by Berry or a third party to which Berry disclosed PHI, Berry shall report the use or disclosure to the Covered Entity without unreasonable delay.
- Berry shall report any Security Incident involving EPHI of which it becomes aware in the following manner: (1) any actual, successful Security Incident will be reported to the Covered Entity in writing without unreasonable delay and in no case later than 60 days after discovery of the Security Incident, and (2) all attempted, unsuccessful Security Incidents (e.g., unsuccessful log-in attempts) are hereby deemed reported to the Covered Entity.
- Berry shall, following the discovery of a Breach of Unsecured PHI, notify the Covered Entity of the Breach in accordance with 45 C.F.R. § 164.410 without unreasonable delay and in no case later than 60 days after discovery of the Breach.
Term and Termination
The Term of these BA Terms shall be effective as of the Effective Date and shall terminate on the earlier of when the Covered Entity ceases to obtain services on the Platform or the date Covered Entity terminates for cause as authorized in paragraph 5.2 of this Section, whichever is sooner.
- Termination for Cause
Berry authorizes termination of this Agreement by Covered Entity if Covered Entity reasonably determines in good faith that Berry has violated a material term of the Agreement. Upon termination Covered Entity shall immediately cease using the Platform and Berry shall deactivate Covered Entity’s account.
- Obligations of Berry Upon Termination
Except as set forth in Section 5.4, upon termination of this Agreement for any reason, Berry shall return to Covered Entity (or, if agreed to by Covered Entity, destroy) all Protected Health Information received from Covered Entity, or created, maintained, or received by Berry on behalf of Covered Entity, that the Berry still maintains in any form. Berry shall retain no copies of the Protected Health Information.
- Transmission of PHI
If so directed by Covered Entity, Berry will transmit any Protected Health Information received from Covered Entity, or created, maintained, or received by Berry on behalf of Covered Entity, to another Berry of Covered Entity at termination.
- Berry Responsibility for Subcontractors
Berry shall be responsible for compliance with the obligations regarding Covered Entity’s Protected Health Information described in this Section 5 with respect to any applicable Protected Health Information created, received, or maintained by Subcontractors retained by Berry.
The obligations of Berry under this Section shall survive the termination of this Agreement.
- Regulatory References
A reference in this Agreement to a section in the HIPAA Rules means the section as in effect or as amended.
The parties agree to take such action as is necessary to amend this Agreement from time to time as is necessary for compliance with the requirements of the HIPAA Rules and any other applicable law. Any amendment to this Agreement must be in writing and signed by both parties.
Any ambiguity in this Agreement shall be interpreted to permit compliance with the HIPAA Rules.
- Governing Law
This Agreement shall be governed by the laws of California, except to the extent preempted by federal law.
The provisions of this Agreement shall be severable, and the invalidity of any provision shall not affect the validity of other provisions.
- Entire Agreement
This Agreement contains the entire agreement between the parties. This Agreement supersedes all prior agreements, understandings or writings, whether oral or written with regard to this subject matter.
Any notice required under this Agreement shall be in writing and shall be given by
- delivery in person,
- by a nationally recognized next day courier service,
- by first class, registered or certified mail, postage prepaid, or such other address as either party may specify in writing.