Hello. Welcome to Vibrant Wellness, LLC. (“we” “us” “our” or “Vibrant”)!

“You” or ““your” applies to healthcare provider or practitioner as applicable.

The Vibrant website (the “Site”,” Provider portal”, “patient portal”), its applications (the “Apps”), and content available on the Site and Apps (the “Content”) are copyrighted work belonging to Vibrant. Vibrant services allow health care providers or practitioners (“Providers” or “Provider”) order lab testing through its website, personalize reports for their patients and make food choices through diet plans, vary nutrition using diet or third-party manufactured supplements (collectively referred to as “Products” OR “Product”) and set goals through protocols. Such services may be accessed through the Site, Apps, Content, APIs, and data feeds (collectively the “Services”).

THIS TERMS OF SERVICE AGREEMENT (“AGREEMENT”) SETS FORTH THE LEGALLY BINDING TERMS FOR YOUR USE OF THE SERVICES. THIS AGREEMENT IS ACCEPTED BY YOUR ACCESSING AND/OR USE OF THE SERVICES. YOU MAY NOT ACCESS AND/OR USE THE SERVICES OR ACCEPT THE AGREEMENT IF YOU ARE NOT AT LEAST 18 YEARS OLD. BY ACCESSING AND/OR USING THE SERVICES, YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THE AGREEMENT AND TO ABIDE BY ALL OF THE TERMS AND CONDITIONS SET FORTH HEREIN. IF YOU DO NOT AGREE WITH ALL PROVISIONS OF THIS AGREEMENT, PLEASE DO NOT ACCESS AND/OR USE THE SERVICES.

THE FOLLOWING DISCLAIMERS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWS. IF YOU ARE A USER RESIDING IN A JURISDICTION THAT DOES NOT PERMIT SUCH DISCLAIMERS, INCLUDING QUEBEC, SUCH DISCLAIMERS SHALL NOT APPLY TO YOU.

ALL INFORMATION CONTAINED ON THE SERVICES (INCLUDING THE SITE, APPS, AND ALL CONTENT- NUTRIENT INFORMATION, REPORT CONTENT, FOOD INGREDIENTS, FOOD ALLERGENS, AND INFORMATION RELATING TO MEDICAL AND HEALTH CONDITIONS LIKE DESCRIPTION OF TEST, MARKERS MEASURED, SYMPTOMS ASSOCIATED WITH THE TEST AND RESOURCES ARE FOR INFORMATIONAL PURPOSES ONLY AND NOT PROVIDED AS MEDICAL ADVICE.

VIBRANT DOES NOT ASSUME ANY LIABILITY FOR ANY HARM ARISING OUT OF PRODUCTS RECOMMENDED ALONG WITH ITS SERVICES, INACCURACIES OR MISSTATEMENTS ABOUT PRODUCTS, WHETHER BASED ON MANUFACTURER INFORMATION, THIRD PARTY INFORMATION, VIBRANT USERS’ INFORMATION OR ON RATINGS AND ASSESMENTS GENERATED BY VIBRANT. YOU SHOULD CAREFULLY READ ALL INFORMATION PROVIDED BY THE MANUFACTURERS OF THE PRODUCTS, WHETHER ONLINE OR ON THE ACTUAL PRODUCT PACKAGING AND LABELS, INCLUDING NUTRIENT CONTENT, INGREDIENTS, FOOD ALLERGEN AND CONTACT INFORMATION, AND HEALTH CLAIMS, BEFORE USING OR CONSUMING A PRODUCT. FOR ADDITIONAL INFORMATION ABOUT A PRODUCT, PLEASE CONTACT THE MANUFACTURER DIRECTLY.

INFORMATION ON THE SERVICES IS NOT INTENDED AS A SUBSTITUTE FOR THE ADVICE PROVIDED BY A QUALIFIED AND LICENSED HEALTHCARE PROFESSIONAL. YOU SHOULD NOT USE INFORMATION ON THE SERVICES FOR THE DIAGNOSIS OR TREATMENT OF A HEALTH PROBLEM OR DISEASES. YOU SHOULD ALWAYS CONSULT YOUR HEALTHCARE PROVIDER BEFORE MAKING ANY DIETARY OR NUTRITIONAL CHANGES.

Vibrant testing does not demonstrate absolute positive and negative predictive values for any disease state or condition. Its clinical utility has not been fully established.

Vibrant validates the accuracy and precision of the testing but not of its clinical or diagnostic value. So these tests are for wellness and informational purpose only. Vibrant is actively doing clinical research on these samples, deidentified from patientsunder an IRB and will make research publications towards the same as and when the clinical utility is well established.

These tests have been laboratory developed and their performance characteristics determined by Vibrant America LLC, a CLIA-certified laboratory performing the test CLIA#:05D2078809. The test has not been cleared or approved by the U.S. Food and Drug Administration (FDA). Although FDA does not currently clear or approve laboratory-developed tests in the U.S., certification of the laboratory is required under CLIA to ensure the quality and validity of the tests.

IN ADDITION TO ALL OTHER LIMITATIONS AND DISCLAIMERS IN THIS AGREEMENT, VIBRANT DISCLAIMS ANY LIABILITY OR LOSS IN CONNECTION WITH THE CONTENT PROVIDED ON THE SERVICES.

Account Creation. In order to use certain features of the Services, you must register for an account with Vibrant (“Vibrant Account”) and provide certain information about yourself as prompted by the registration form. You represent and warrant that: (a) all required registration information you submit is truthful and accurate; (b) you will maintain the accuracy of such information; and (c) your use of the Services does not violate any applicable law or regulation or the terms of this Agreement.

Account Responsibilities. You are responsible for maintaining the confidentiality of your Vibrant Account login information and are fully responsible for all activities that occur under your Vibrant Account. You agree to immediately notify Vibrant of any unauthorized use, or suspected unauthorized use of your Vibrant Account or any other breach of security. Vibrant cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements. We will protect your Vibrant Account information in accordance with the Privacy Policy.

You take responsibility for any medical necessity, applicable state licensures for ordering and follows all applicablerules and regulations including but not limited to:

 a. 

The Health Insurance Portability and Accountability Act of 1996 (HIPAA) and subsequentrevisions including the Health Information Technology for Economic and Clinical Health(HITECH) Act, and implementing regulations;

 b. 

The federal Anti-Kickback Statute (42 U.S.C. § 1320a-7b(b)) and the related safe harborregulations at 42 C.F.R. § 1001.952, and any applicable state provisions;

 c. 

The Limitation on Certain Physician Referrals, also referred to as the “Stark Law” (42 U.S.C.§ 1395nn) and implementing regulations at 42 C.F.R. §§ 411.350 et seq. and anyapplicable state provisions;

 d. 

The Civil Monetary Penalties Law, 42 U.S.C. § 1320a-7a and implementing regulations at42 C.F.R. Part 1003, and any applicable state provisions.

You have access to ordering Vibrant tests on this Web Site by using the practitioner account you created. YOU ACKNOWLDGE AND AGREE THAT THE ORDERING OF THE TESTS IS THE PRACTITIONER-YOURSELF, AND NOT VIBRANT. The ordering of tests on this Web Site is subject to availability.

VIBRANT AND ITS AFFILIATES SHALL HAVE NO RESPONSIBILITY OR LIABILITY TO YOU WHATSOEVER IN RESPECT OF SUCH TESTS WHICH YOU ORDER FROM THIS WEBSITE OTHER THAN PERFORMING TESTS AS PER VIBRANT TESTING POLICIES LISTED ON THIS WEBSITE.

Vibrant allows providers to order tests for their patients on the website. VIBRANT shall perform the Services at the pricing as set forth in the Test Price Calculator inside the Provider portal. All Vibrant services are provided on a pre-paid purchase only. The patient or provider is required to pay using their credit card at the time of ordering the tests. No returns or refunds are eligible for the orders once the sample has been received by the Lab. Only the provider can cancel the order if the specimen has still not been received by the lab. A cancellation fee of $25 will apply if the order has been paid for and the kit has been shipped.Vibrant reserves the right to withhold results for any payment related issues associated with the test order.

Vibrant provides suggested tests as a convenience only feature based on ordering patterns of other providers/published literature. This feature does not intend to make you order medically unnecessary or additional testing. It is your responsibility to use your medical discretion to order the relevant testing for your patients.

A reference range is a set of values that includes upper and lower limits of a lab test based on a group of otherwise healthy people. The values in between those limits may depend on such factors as age, sex, and specimen type (blood, urine, spinal fluid, etc.) and can also be influenced by circumstantial situations such as fasting and exercise. These intervals are thought of as “normal ranges or limits.”. Vibrant validation reports details how these ranges have been established for each of its test.

A normal result in one lab may be abnormal in another: While accuracy of laboratory testing has significantly evolved over the past few decades, some lab-to-lab variability can occur due to differences in testing equipment, chemical reagents used, and analysis techniques. Consequently, for most lab tests, there is no universally applicable reference value.

A normal result does not promise health: While having all test results within normal limits is certainly a good sign, it’s not a guarantee. For many tests, there is a lot of overlap among results from healthy people and those with diseases, so there is still a chance that there could be an undetected problem. Lab test results in some people with disease fall within the reference range, especially in the early stages of a disease.

An abnormal result does not mean you are sick: A test result outside the reference range may or may not indicate a problem. Since many reference values are based on statistical ranges in healthy people, you may be one of the healthy people outside the statistical range, especially if your value is close to the expected reference range. However, the abnormal value does alert your healthcare provider to a possible problem, especially if your test result is far outside the expected values.

Vibrant offers service to providers to set their own reference ranges based on their professional experience and discretion. By setting such reference ranges, provider assumes full liability for any actions taken upon these providers’ recommended reference ranges.

Vibrant provides only 1 option to deliver results securely through MyVibranthealthportal access to both patients and physicians. Vibrant does not provide reports through fax or mail outpaper reports as an option.

Vibrant allows providers to create their own personalized report based on provider recommended reference range, nutritional support protocols and activities for their patients.

Providers have access to making recommendations to their patients based on the patients’ test results. Vibrant provides a service to let you view, create and/or choose diet plans and protocols that have been used by several providers across the US. These diet, nutrient protocols are intended for sole use by qualified healthcare practitioners when considering nutritional support protocols for their patients and clients. The use of brand names, protocols and other suggestions are solely for educational purposes only. These products or protocols are not endorsed by the respective companies for any disease conditions. FDA requirements prohibit disease claims from being associated with dietary supplements. In order to protect both Customers, Supplements brands and Vibrant itself from potential legal liability, Vibrant suggestion to dietary supplements and non-medical foods may not be displayed or mentioned in association with disease claims. For dietary supplements and non-medical foods, product reviews and testimonials must be monitored and must not include disease claims.

The statements and such protocols have not been evaluated by the Food and Drug Administration. The products listed in such protocols are not intended to diagnose, treat, cure or prevent any disease. The information, comments, and opinions are for educational purposes only. At no time should it take the place of individualized evaluation and treatment recommendations provided by a qualified and licensed health care practitioner in the context of a clinical relationship. Practitioners should evaluate the above information using their expertise coupled with each patient’s individualized assessment.

You hereby consent to and authorize Us to delegate the authorizations and share the information You provide to Us with the Payment Processor(s) to the extent required to provide the Services to You.

Vibrant offers Provider Consults for the following with a team of functionally trained registered dietitians:

Patient Lab Interpretation

Dietary and Supplement Recommendations

Provide the Latest Education

Consult on Advanced Cases

Discuss Protocols

Support Patient Compliance

The Vibrant America Clinical Support team can only provide basic and generalized interpretation of Vibrant lab results. It is the ordering provider’s responsibility to provide comprehensive clinical interpretation and individualized treatment recommendations for lab test results.

THE FOLLOWING LIMITATIONS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWS. IF YOU ARE A USER RESIDING IN A JURISDICTION THAT DOES NOT PERMIT SUCH LIMITATION, SUCH LIMITATIONS SHALL NOT APPLY TO YOU.

IN NO EVENT SHALL VIBRANT AND ITS AFFILIATES BE LIABLE TO YOU OR TO ANY OTHER PERSON OR ENTITY FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE), STRICT LIABILITY, PRODUCT LIABILITY OR OTHERWISE, EVEN IF VIBRANT OR ANY OF ITS AFFILIATES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

Ownership. You acknowledge that all the intellectual property rights, including copyrights, patents, trademarks, and trade secrets, in the Services (including the Site, Apps, and Content, but excluding any User Content as defined herein) are owned by Vibrant or Vibrant’s suppliers. The provision of the Services does not transfer to you or any third party any rights, title or interest in or to such intellectual property rights. Vibrant and its suppliers reserve all rights not granted in this Agreement.

License. Subject to the terms of this Agreement, Vibrant grants you a non-transferable, non-exclusive, license (without the right to sublicense) to (a) use the Services solely for your personal, non-commercial purposes, and (b) install and use the Apps, solely on your own handheld mobile device (e.g., iPhone, Android, etc. as applicable) and solely for your personal, non-commercial purposes

Certain Restrictions. The rights granted to you in this Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Services; (b) you shall not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Services; (c) you shall not access the Services in order to build a similar or competitive service; (d) except as expressly stated herein, no part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; (e) You may not copy or modify the code used to provide the Services; and (f) You may not use the Site, Apps, Content, or Services on or in connection with any other website, for any purpose. Any future release, update, or other addition to functionality of the Services shall be subject to the terms of this Agreement. All copyright and other proprietary notices on the Site must be retained on any copies.

Use of Services at Your Own Risk. Your access to and use of the Site, Content, Apps, and Services is at your own risk. Vibrant will have no responsibility for any harm to your computing system, loss of data, or other harm to you or any third party, including, without limitation, any bodily harm, that results from your access to or use of the Site, Apps, Content, or Services, or reliance on any information or advice with respect to any food products.

Customer Support. Vibrant has no obligation to provide you with customer support of any kind. However, Vibrant may provide you with customer support from time to time, at Vibrant’s sole discretion.

Modification Of Services. Vibrant reserves the right, at any time, to modify, suspend, or discontinue the Services (including the Site, Apps, and APIs) or any part thereof with or without notice. Vibrant reserves the right to integrate into a different web service, migrate to a different URL, modify or discontinue, restrict or block access to, the Services without notice to you. Vibrant may modify or remove any Content from the Services at any time without notice to you. Vibrant is not liable for any such modification, suspension, discontinuance or removal. You agree that Vibrant will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Services or any part thereof.

User Content. “User Content” of a user means any photographs, pictures, content, text, artwork, files, programs, sound, graphics, video, data, product ratings, product comments, or forum post and other similar materials that a user submits, emails or otherwise uses with the Services. “Your User Content” means User Content that you provide to Vibrant. “Media” means any means of conveying information, whether now known or hereafter devised. You are solely responsible for your User Content.

You assume all risks associated with use of User Content, including any reliance on its accuracy, completeness or usefulness by others, or any disclosure of Your User Content that makes you or any third party personally identifiable.

License. By using Your User Content with the Services, you automatically grant, and you represent and warrant that you have the right to grant, to Vibrant an irrevocable, nonexclusive, royalty-free and fully paid, worldwide license to reproduce, distribute, publicly display and perform, prepare derivative works of, incorporate into other works, and otherwise use Your User Content, and to grant sublicenses of the foregoing, solely for the purposes of including Your User Content in the Services. You agree to irrevocably waive (and cause to be waived) any claims and assertions of moral rights or attribution with respect to Your User Content.

Feedback. Vibrant will treat any feedback or suggestions you provide to Vibrant as non-confidential and non-proprietary. Thus, in the absence of a written agreement with Vibrant to the contrary, you agree that you will not submit to Vibrant any information or ideas that you consider to be confidential or proprietary.

User Content License Grants. You hereby grant to Vibrant a worldwide, perpetual, irrevocable, nonexclusive, royalty-free, fully-paid up, transferable right and license, with the right to sublicense through multiple levels of sublicensees, under all of your intellectual property and other rights in Your User Content, to (a) reproduce, distribute, transmit, publicly perform and publicly display Your User Content, in whole or in part, in any manner and Media, (b) modify, adapt, translate and create derivative works from Your User Content, in whole or in part, in any manner and Media, (c) sublicense the foregoing rights, in whole or in part, to any third party, with or without a fee and (d) exercise any and all other present or future rights in Your User Content.

Name, Trademarks and Likenesses License Grants. You hereby grant to Vibrant a worldwide, perpetual, irrevocable, nonexclusive, royalty-free, fully-paid up, transferable right and license, with the right to sublicense through multiple levels of sublicensees, under all of your intellectual property and other rights in Your User Content, to use all trademarks, trade names and the names and likenesses of any individuals that appear in Your User Content. You grant Vibrant the right to use the name that you submit in connection with Your User Content.

Moral Rights. You hereby waive and agree never to assert any claim of Moral Rights in Your User Content against Vibrant or any of Vibrant’s licensees. “Moral Rights” means any right to (a) divulge Your User Content to the public; (b) retract Your User Content from the public; (c) claim authorship of Your User Content; (d) object to any distortion, mutilation or other modification of Your User Content; or (e) any and all similar rights, existing under judicial or statutory law of any country or jurisdiction in the world, or under any treaty regardless of whether or not such right is called or generally referred to as a moral right.

Restrictions. You agree that you will not submit User Content that is unlawful, pornographic, libelous, defamatory, tortious, obscene, or racially, ethnically or otherwise objectionable or that otherwise violates general Vibrant community standards. We expressly reserve the right to remove or not make available any User Content that we deem to be in violation of this Agreement, applicable laws or our community standards in our sole discretion. You agree that you will not upload, post, e-mail or otherwise transmit User Content to us that contain software viruses or any other computer code, files, or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment.

No Obligation. Although we have the right to include Your User Content in the Service or in any Media, we do not have the obligation to do so. We may, in our sole discretion and for any reason, refuse Your User Content or remove it from our Service at any time. We reserve the right to remove, screen, edit, or reinstate User Content from time to time at our sole discretion and without notice to you. We have no obligation to retain or provide you with copies of Your User Content, nor do we guarantee any confidentiality with respect to Your User Content.

Advertising. Vibrant and its licensees may publicly display advertisements and other information adjacent to or included with Your User Content. You are not entitled to any compensation for such advertisements. The manner, mode and extent of such advertising are subject to change without specific notice to you.

Representations and Warranties. You hereby affirm, represent, and warrant that (a) you own, or have the necessary licenses, rights, and/or consents to use Your User Content with the Services as described herein; (b) Your User Content does not infringe any copyright or any other intellectual property right of any third party; (c) Your User Content, and Vibrant’s exercise of its rights hereunder, do not and will not violate, misappropriate or infringe any intellectual property right, including but not limited to trademark rights, copyrights, moral rights and publicity rights of any third party; (d) you possess all rights necessary for the reproduction, distribution, transmission, public performance, public display, and other exploitation of Your User Content by Vibrant as permitted hereunder; (e) Your User Content is not pornographic, obscene, libelous, defamatory, tortious, or otherwise unlawful; (f) all factual statements submitted by you are accurate and not misleading; and (g) Your User Content does not in any other way violate the Acceptable Use Policy (defined below).

You may not state or imply that Your User Content is in any way provided, sponsored or endorsed by Vibrant. Because you alone are responsible for Your User Content (and not Vibrant), you may expose yourself to liability if, for example, Your User Content violates the Acceptable Use Policy. Vibrant is not obligated to backup any User Content and Your User Content may be deleted at anytime. You are solely responsible for creating backup copies of Your User Content if you desire. We will protect User Content in accordance with Vibrant’s Privacy Policy.

You agree to indemnify and hold harmless Vibrant and its affiliates and their respective directors, officers, employees, agents, mandataries or other representatives from and against all claims, liability, damages and expenses, including without limitation all legal fees and costs arising from or relating to (a) your breach of these Terms of Use; and (b) your use of this Site; and (c) any claim or allegation that any content provided by you to Vibrant, including testimonials, infringe the intellectual property or other rights of any third party or applicable laws.

Under the General Data Protection Regulation (GDPR) issued by the European Commission, Vibrant is a third-party processor of your patient’s Personal Data; you, the Practitioner/Clinician, are the controller and/or processor, as applicable, of that Personal Data under the European Data Protection Legislation; and each party will comply with the obligations applicable to it under GDPR Legislation with respect to the processing of that Customer Personal Data.

These Terms of Use and any disputes arising under or related to these Terms of Use will be governed by the laws of California, without reference to any conflicts of law principles that would result in the application of the laws of another jurisdiction. The parties irrevocably attorn to the jurisdictions of the courts of California in respect of all disputes, proceedings or actions relating to these Terms of Use. The parties hereby expressly agree to exclude the application of the United Nations Convention on Contracts for the International Sale of Goods as amended, replaced or re-enacted from time to time.

If any provision of these Terms of Use are found to be illegal, invalid or unenforceable for any reason, then that provision shall be deemed severable from these Terms of Use and shall not affect the legality, validity and enforceability of any remaining provisions. No failure on the part of Vibrant to enforce any part of these Terms of Use shall constitute a waiver of any of Vibrant’ rights under these Terms of Use. All waivers by Vibrant must be in writing and signed. You may not assign these Terms of Use or assign any rights or delegate any obligations hereunder and thereunder, in whole or in part, without the prior written consent of Vibrant. Any such purported assignment or delegation by you without the prior written consent of Vibrant will be null and void and of no force and effect. Vibrant may assign these Terms of Use or any rights hereunder without your consent and without notice.

Vibrant may at any time modify these Terms of Use.

If you have an account on this Web Site, Vibrant will provide you notice of such modification via e-mail or mail to the e-mail address or the mailing address associated with your account. Your use of this Web Site following such notice shall be deemed to be acceptance of such modified Terms of Use. If you do not agree to any such modifications, you must immediately contact Vibrant to cancel your account and cease using this Web Site.

For users of this Web Site that have not set up an account, Vibrant will make available the updated Terms of Use on this Web Site. Your access or use of this Web Site following such posting will be deemed to be acceptance of such modified Terms of Use. If you do not agree to any such modifications, you must immediately cease accessing and using this Web Site. You acknowledge and agree that it is your responsibility to review the Terms of Use each time you access this Web Site.

Vibrant may at any time terminate your right to access this Web Site without notice to you.

Provisions of these Terms of Use relating to Geographic Scope; Reliance on Information; Purchases on this Website; Changes to this Web Site; Age of Majority; Accounts; Links; Testimonials; Intellectual Property (provided that your license will terminate upon termination); Disclaimers of Warranties; Limitation of Liability; Indemnity; Applicable Law and Jurisdiction; Severability, Waiver and Assignment; Termination; Language; and Entire Agreement will survive the termination of your right to use this Web Site.

These Terms of Use and the Testimonial Terms and Conditions constitute the entire agreement between you and Vibrant with respect to your use of this Web Site and will supersede all previous agreements, understandings and representations relating thereto.

To the extent Vibrant functions as a “business associate” to Provider, as such term is defined in the Health Insurance Portability and Accountability Act and its implementing regulations (“HIPAA”), this Section applies and is referred to as the Business Associate Agreement or “BAA”. Vibrant shall not use or disclose protected health information (“PHI”) created, received, maintained, or transmitted for or on behalf of Provider except to perform the services, or as permitted by this BAA or required by law. Vibrant shall not use or disclose PHI in any manner that would constitute a violation of the HIPAA if so used or disclosed by Provider. Without limiting the generality of the foregoing, Vibrant is permitted to (i) use and disclose PHI for the proper management and administration of Vibrant or to carry out the legal responsibilities of Vibrant, provided that with respect to any such disclosure either: (a) the disclosure is required by law; or (b) Vibrant obtains agreement from the person to whom the PHI is to be disclosed that such person will hold the PHI in confidence and will not use or further disclose such PHI except as required by law and for the purpose(s) for which it was disclosed by Vibrant to such person, and that such person will notify Vibrant of any instances of which it is aware in which the confidentiality of the PHI has been breached; (ii) use PHI for data aggregation purposes in connection with the health care operations of Provider; and (iii) use PHI to create de-identified information in accordance with the requirements outlined in HIPAA. Data that have been de-identified will no longer be subject to the terms of this BAA. Vibrant agrees to use appropriate safeguards and comply, where applicable, with Subpart C of 45 C.F.R. Part 164 with respect to electronic PHI, to prevent use or disclosure of the information other than as provided for by this BAA. Vibrant shall notify Provider of any use or disclosure by Vibrant that is not permitted by this BAA and each Security Incident, including Breaches of Unsecured PHI, as such terms are defined in HIPAA. Notwithstanding the foregoing, Vibrant and Provider acknowledge the ongoing existence and occurrence of attempted but ineffective Security Incidents that are trivial in nature, such as pings and other broadcast service attacks, and Provider acknowledges and agrees that no additional notification to Provider of such ineffective Security Incidents is required, as long as no such incident results in unauthorized access, use or disclosure of PHI. To the extent that Vibrant agrees to carry out one or more of Provider’s obligations under Subpart E of 45 C.F.R. Part 164, Vibrant will comply with the requirements of Subpart E that apply to Provider in the performance of such obligations. Vibrant agrees to make its internal practices, books and records relating to the use and disclosure of Provider’s PHI available to the Secretary of the Department of Health and Human Services for purposes of determining Provider’s compliance with HIPAA. To the extent that Vibrant maintains a designated record set on behalf of Provider, Vibrant shall (i) make the PHI it maintains (or which is maintained by its subcontractors) in such designated record set available to Provider for inspection and copying to enable Provider to fulfill its obligations under 45 C.F.R. § 164.524; and (ii) amend the PHI it maintains (or which is maintained by its subcontractors) in such designated record set to enable the Provider to fulfill its obligations under 45 C.F.R. § 164.526. Vibrant agrees to document such disclosures of PHI and information related to such disclosures as would be required for Provider to respond to a request by an individual for an accounting of disclosures of PHI in accordance with 45 C.F.R. § 164.528 and provide such information to Provider upon request. Vibrant shall require each of its subcontractors that creates, receives, maintains, or transmits PHI on behalf of Vibrant, to execute a written agreement that includes substantially the same restrictions and conditions that apply to Vibrant under this BAA with respect to PHI. Upon Provider’s or Vibrant’s knowledge of a material breach or violation of this BAA by the other Party, the non-breaching Party shall notify the breaching Party of the breach in writing, and provide an opportunity for the breaching Party to cure the breach or end the violation within thirty (30) days of such notification; provided that if the breaching Party fails to cure the breach or end the violation within such time period to the satisfaction of the non-breaching Party, the non-breaching Party may immediately terminate this BAA upon written notice to the breaching Party. Upon termination or expiration of this BAA, Vibrant shall either return or destroy all PHI received from, or created or received by Vibrant on behalf of Provider, that Vibrant still maintains in any form and retain no copies of such PHI. If return or destruction is not feasible, Vibrant shall continue to extend the protections of this BAA to the PHI for as long as Vibrant retains the PHI and limit further uses and disclosures of such PHI to those purposes that make the return or destruction of the PHI infeasible. Provider shall notify Vibrant in writing of any of the following, to the extent that such limitation, change, revocation, or restriction may affect Vibrant’s use or disclosure of PHI: (i) any limitation(s) in Provider’s notice of privacy practices; (ii) any changes in, or revocation of, permission by an individual to use or disclose PHI; or (iii) any restriction to the use or disclosure of PHI that Provider has agreed to in accordance with 45 C.F.R. § 164.522. Provider will obtain any consent or authorization that may be required by HIPAA, or applicable state law, prior to furnishing Vibrant with PHI.