Allora, LLC, an Oklahoma limited liability company ("We" or "Us"), provides consumers of medical services with a marketplace of physicians offering transparent and affordable prices to reduce the cost of, and improve access to, high-quality medical care (the "Program") through its Platform (as defined below). This Referral Service Program Agreement (the "Agreement") guides your participation as a physician in the Program. You ("You" or "Your") accept this Agreement by creating an account, participating in the Program, using the Platform, and/or otherwise offering or providing any treatment to any consumers of medical services using the Platform.
As used herein, the following terms have the following meanings:
means any consumers of medical services who are participating in the Program and/or using the Platform and, in the case of self-funded health plans, such consumers' employers.
means Our web-based and/or mobile application marketplace that enables consumers to search for, compare, and connect with independent healthcare providers and to purchase services directly from such providers, together with such other applications, products, services and other offerings that We may offer to Participating Members from time to time. The Platform facilitates listings, scheduling, messaging, telehealth, and payment processing between consumers and medical professionals but does not itself furnish medical services, practice medicine, or act as a healthcare provider, insurer, or agent of any consumer or provider.
By accepting this Agreement, You agree as follows:
You'll need an account to use the Platform. You can create an account by signing up online. You agree not to use any false, inaccurate or misleading information when signing up for your account. IF YOU CREATE AN ACCOUNT ON BEHALF OF ANOTHER PERSON OR ENTITY, SUCH AS YOUR BUSINESS, OR EMPLOYEE, YOU REPRESENT THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THAT PERSON OR ENTITY TO THESE TERMS, AND YOU AGREE TO BE BOUND BY THESE TERMS AND SHALL BE RESPONSIBLE FOR ALL USE OF THE PLATFORM. You cannot transfer your account credentials to another user or entity. To protect your account, keep your account details and password confidential. You are responsible for all activity that occurs under your account.
So long as this Agreement is in effect, We grant you a limited, non-exclusive, non-sublicensable, non-transferable, non-assignable license to use the Platform. You will not sell, transfer, or sublicense the Platform to anyone. You will not use, access, integrate with, modify, translate, create derivative works of, reverse engineer, or otherwise exploit the Platform or any aspect thereof. We reserve all rights, title, and interest (including the right to enforce any such rights) not expressly granted in this paragraph.
You grant us a non-exclusive, transferable, sublicensable, royalty-free, worldwide license to: host, use, distribute, modify, run, copy, publicly perform or display, translate, and create derivative works of any information, data, and other content made available by you or on your behalf in connection with Platform ("Your Content") for any business purpose in connection with operating, providing, or improving Platform. This license remains in effect even if you stop using Platform.
The Platform may allow You to access or acquire products, services, websites, links, content, material, games, skills, integrations, bots or applications from independent third parties (i.e., companies or people who aren't Us) ("Third-Party Apps and Services"). The Third-Party Apps and Services may allow you to share and/or store Your Content with the publisher, provider or operator of the Third-Party Apps and Services. YOU AGREE THAT WE ARE NOT RESPONSIBLE FOR THE PRIVACY OR SECURITY OF ANY OF YOUR CONTENT OR OTHER INFORMATION THAT YOU SHARE AND/OR STORE WITH THE PUBLISHER, PROVIDER OR OPERATOR OF THE THIRD-PARTY APPS AND SERVICES. The Third-Party Apps and Services may present you with a privacy policy or require you to accept additional terms before you can install or use the Third-Party App or Service. You should review any additional terms and privacy policies before acquiring, using, requesting, or linking your account to any Third-Party Apps and Services. Any additional terms do not modify any of this Agreement. You are responsible for your dealings with third parties.
We strive to keep the Platform up and running; however, all online services suffer occasional disruptions and outages. YOU AGREE THAT WE ARE NOT LIABLE FOR ANY DISRUPTION OR LOSS YOU MAY SUFFER AS A RESULT.
You shall offer medical services ("Professional Services") for purchase by Participating Members through the Platform. Participating Members will use our Platform to submit electronic requests for such Professional Services (each an "Order") via our Platform. Subject to Your written acceptance of an Order from a Participating Member, You shall fulfill each Order in accordance with the terms of this Agreement. All Orders submitted by a Participating Member shall be subject to the terms of this Agreement and shall not in any way expand or otherwise modify the terms of this Agreement.
You shall devote your best efforts to the performance of the Professional Services. You shall discharge all duties in a professional and competent manner.
You shall act independently in the observation, assessment, diagnosis, intervention, evaluation, rehabilitation, care and counsel, and health teachings relating to Participating Members within your education and experience, and You shall retain professional accountability for all care provided to such Participating Members.
So long as you are participating in the Program, using the Platform, and/or otherwise offering or providing any treatment to Participating Members, You shall (1) possess all licenses required to provide the Services and maintain them in good standing in the state in which the patient is located; and where applicable, (2) possess active, unrestricted federal and state narcotics, controlled substances, and dispensing permits, licenses, and registrations required to provide the Professional Services to Participating Members.
You shall comply with the standards and requirements of all applicable federal, state, local and other laws, rules and regulations governing the Professional Services, as well as all applicable professional standards, including, without limitation, all federal and state healthcare fraud and abuse and patient privacy laws and regulations such as 31 U.S.C. §§ 3729-3733; 42 U.S.C. §§ 1395nn and 1396; 42 U.S.C. § 1320a-7; 42 U.S.C. § 1320a-7a; 42 U.S.C. § 1320a-7b; the Health Insurance Portability and Accountability Act of 1996; and the Health Information Technology for Economic and Clinical Health Act.
You make the following representations, which shall remain true for so long as you are participating in the Program, using the Platform, and/or otherwise offering or providing any treatment to Participating Members:
You are duly licensed and in good standing to provide the Professional Services in the states in which the Participating Members you are treating are located.
You have never had your license in any state, or your clinical privileges at any hospital or health care facility, suspended, revoked, or limited in any way, nor have You ever surrendered your license or clinical privileges under threat of any such suspension, revocation or limitation.
You have never had any federal or state narcotics, controlled substances, or dispensing permits, licenses, or registrations suspended, revoked, or limited in any way, nor have You ever surrendered the same under threat of any such suspension, revocation or limitation.
You are not currently and have not ever been suspended from participation in or subject to any type of criminal or civil sanction, fine, civil money penalty, exclusion or other liability by any private or public health insurance program, including Medicare, Medicaid or any other federal or state health insurance program.
There are no proceedings pending or threatened against You relating to (i) your license or right to practice in any state, (ii) your clinical privileges at any hospital or other health care facility, or (iii) any medical treatment provided by You.
You are not currently and have not been in violation of any federal or state fraud and abuse laws, including, without limitation, the Federal Anti-Kickback Statute, Stark Law, and EKRA.
You are not subject to any non-competition agreements or other restrictive covenants, whether oral or written, that prevent, or would be violated by, You participating in the Program.
You shall not charge any Participating Members a rate or fee that is more than the rate or fee that you customarily accept form or on behalf of persons who are not participating in the Program. Otherwise, there shall be no requirements on the manner in which You provide Professional Services to Participating Members. Except for Orders accepted by You, You may increase or decrease the rates and fees published by You on the Platform at any time.
So long as you are participating in the Program, using the Platform, and/or otherwise offering or providing any treatment to Participating Members, You give Us permission to use Your name, image, likeness, logo(s), pricing, credentials, and other information that We need to effectively implement the Program. We may do so in any lawful manner throughout the world without compensation to You of any kind. We must stop doing so once you are no longer participating in the Program, using the Platform, and/or otherwise offering or providing any treatment to Participating Members.
The relationship of the parties established by this Agreement is that of independent contractors, and nothing contained herein shall be construed to: (i) give either party the power to direct and control the day-to-day activities of the other, (ii) constitute the parties as partners, joint ventures, co-owners or otherwise as participants in a joint or common undertaking, or (iii) allow the parties to create or assume any obligation on behalf of each other.
THE PLATFORM IS AN OPEN MARKETPLACE. ANY INDEPENDENT HEALTHCARE PROVIDER MAY PARTICIPATE IF THEY: (I) AGREE TO THE TERMS OF THIS AGREEMENT; (II) ACT INDEPENDENTLY AND MAINTAIN PROFESSIONAL ACCOUNTABILITY FOR ALL CARE; (III) HOLD AND MAINTAIN ALL LICENSES, PERMITS, REGISTRATIONS, AND, WHERE APPLICABLE, CONTROLLED-SUBSTANCE AUTHORIZATIONS REQUIRED TO TREAT PATIENTS IN THE RELEVANT STATE(S); (IV) COMPLY WITH ALL APPLICABLE FEDERAL, STATE, AND LOCAL LAWS, RULES, AND PROFESSIONAL STANDARDS (INCLUDING, WITHOUT LIMITATION, FEDERAL AND STATE HEALTHCARE FRAUD AND ABUSE AND PATIENT PRIVACY LAWS); (V) ARE NOT EXCLUDED, SUSPENDED, OR DEBARRED FROM ANY FEDERAL OR STATE HEALTH CARE PROGRAM AND MEET OTHER REPRESENTATIONS RELATED TO GOOD STANDING; AND (VI) OTHERWISE COMPLY WITH THE PROGRAM'S TERMS AND POLICIES. THERE IS NO EXCLUSIVITY AND NO MINIMUM OR MAXIMUM REFERRAL VOLUME.
NEITHER HEALTHCARE PROVIDERS NOR PATIENTS PARTICIPATING IN THE PROGRAM OR USING THE PLATFORM SHALL PAY ANY FEE TO US FOR PARTICIPATION, INCLUSION, OR REFERRALS. WE DO NOT RECEIVE COMPENSATION FROM HEALTHCARE PROVIDERS FOR REFERRALS, PLACEMENT, RANKING, OR PREFERRED STATUS.
BY DEFAULT, THE PLATFORM DISPLAYS HEALTHCARE PROVIDERS BASED SOLELY ON OBJECTIVE PROXIMITY TO THE PARTICIPATING MEMBER. PARTICIPATING MEMBERS MAY SORT OR FILTER RESULTS BY OBJECTIVE CRITERIA (E.G., PRICE, AVAILABILITY, SPECIALTY, LANGUAGE), BUT WE DO NOT GIVE ANY HEALTHCARE PROVIDERS PREFERRED PLACEMENT, PAID BOOSTS, OR PRIORITY BASED ON COMPENSATION, REFERRAL VOLUME, ANTICIPATED REVENUE, OR ANY OTHER CRITERIA.
WE OPERATE A MARKETPLACE THAT ALLOWS CONSUMERS TO SEARCH FOR, COMPARE, AND CONNECT WITH INDEPENDENT PROVIDERS AND TO PURCHASE SERVICES DIRECTLY FROM THOSE PROVIDERS. WE DO NOT FURNISH MEDICAL SERVICES, DO NOT PRACTICE MEDICINE, ARE NOT AN INSURER, AND ARE NOT THE AGENT OF ANY HEALTHCARE PROVIDER OR PATIENT. YOU AND OTHER HEALTHCARE PROVIDERS PARTICIPATING IN THE PROGRAM ARE INDEPENDENT CONTRACTORS AND ARE SOLELY RESPONSIBLE FOR THE CARE THEY PROVIDE.
A PROVIDER WILL BE SUSPENDED OR REMOVED IF THEY FAIL TO MEET OR MAINTAIN THE PARTICIPATION CRITERIA DESCRIBED IN SECTION 3.1, INCLUDING: LOSS OR LAPSE OF REQUIRED LICENSES OR PERMITS; FAILURE TO COMPLY WITH APPLICABLE LAWS OR PROFESSIONAL STANDARDS; EXCLUSION, SUSPENSION, DEBARMENT, OR OTHER ENFORCEMENT ACTION; MATERIAL MISREPRESENTATION; OR MATERIAL BREACH OF THE PROGRAM AGREEMENT OR POLICIES. THERE ARE NO RESTRICTIONS ON WHICH PATIENTS MAY RECEIVE REFERRALS VIA THE PLATFORM BEYOND LAWFUL ELIGIBILITY AND THE HEALTHCARE PROVIDER'S INDEPENDENT CLINICAL JUDGMENT.
If You accept an Order, then the following terms apply:
The rate or fee payable by a Participating Member for each Order that You accept shall be the rate or fee that You published on the Platform (the "Approved Charge"). Once the Order has been accepted by You, You may not increase or decrease the Approved Charge.
Participating Members shall be responsible for paying the Approved Charge after You have provided Us with reasonable assurance that the Professional Services have been provided by You.
To facilitate timely payment of the Approved Charge relating to an Order, We will collect it in advance from the Participating Member when the Order is placed on the Platform and then forward it to You via ACH transfer after receiving reasonable assurance that the Professional Services have been provided by You. We have the right to pass on to You without markup any transaction expenses incurred by Us in connection with facilitating payment and may divide those fees equally between You and the Participating Member.
We facilitate payment merely as a convenience to You and the Participating Member. We are not a bank, trustee, escrow, fiduciary, bailee, insurer, or agent for You or any Participating Member (and no special deposit, trust, escrow, bailment, or constructive trust is created), nor are We undertaking any duty. Funds received by Us may be commingled and are not required to be segregated.
You acknowledge and agree that (i) the Participating Members—not Us—are solely responsible for paying You the Approved Charge for Professional Services provided by You; (ii) We do not guarantee collection, settlement, or timing of any payment; (iii) We have no duty (fiduciary or otherwise) to You and owe no obligations other than, if and when We actually receive cleared, final funds from a Participating Member for the applicable Order ("Cleared Funds"), to remit such funds to You net of applicable adjustments, reversals, chargebacks, offsets, holds, fees, or refunds required by law; (iv) We will not advance or front funds if a Participating Member fails to pay or if a payment is reversed or disputed; and (v) if a Participating Member reverses the payment of an Approved Charge, then we may charge/claw back that amount from You by initiating a ACH debit transfer. This paragraph shall survive the termination of this Agreement.
Participating Members shall, at all times, maintain with Us the most-current and accurate payment information needed to allow Us to collect and return Approved Charges from/to them, and You shall, at all times, maintain with Us the most-current and accurate payment information needed to allow Us to transfer and charge/claw back Approved Charges to/from You. By providing Us with payment information, You (i) represent that You are authorized to use the payment method You provided and that any payment information You provide is true and accurate; and (ii) authorize Us to transfer and charge/claw back Approved Charges to/from You as permitted in this Agreement.
This Agreement shall remain in effect until canceled by either You or Us. You and We may cancel this Agreement at any time, with or without cause. In such event, Your access to the Program and use of the Platform will end, and notwithstanding anything stated to the contrary in this Agreement, We shall have no further obligation to You and Your account will be closed. If your account is closed (whether by You or Us), a couple things happen. First, your right to use Platform stops immediately. Second, we'll delete all Your Content associated with your account or will otherwise disassociate it from You and your account. We will not be able to retrieve any of Your Content once your account is closed.
WE MAKE NO WARRANTIES, EXPRESS OR IMPLIED, GUARANTEES, OR REPRESENTATIONS WITH RESPECT TO ANY ASPECT OF THE PROGRAM OR PLATFORM, INCLUDING, WITHOUT LIMITATION, OUR ROLE AS PAYMENT FACILITATOR. YOU UNDERSTAND THAT YOUR PARTICIPATION IN THE PROGRAM AND USE OF THE PLATFORM IS AT YOUR OWN RISK AND THAT WE ARE PROVIDING THE PROGRAM, PLATFORM, AND PAYMENT FACILITATION ON AN "AS IS" BASIS "WITH ALL FAULTS" AND "AS AVAILABLE." YOU BEAR THE ENTIRE RISK OF PARTICIPATING IN THE PROGRAM AND USING THE PLATFORM, INCLUDING, WITHOUT LIMITATION, USING US AS A PAYMENT FACILITATOR. WE DO NOT GUARANTEE THE ACCURACY, APPROPRIATENESS, QUALITY, TIMELINESS, SUCCESS, OR ANY OTHER ASPECT WHATSOEVER OF THE PROGRAM, PLATFORM, OR PAYMENT FACILITATION. WE EXCLUDE ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, TITLE, MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, WORKMANLIKE EFFORT, AND NON-INFRINGEMENT. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU HEREBY EXPRESSLY RELEASE AND AGREE TO HOLD HARMLESS US AND OUR AFFILIATES FROM AND AGAINST ANY AND ALL DIRECT AND INDIRECT LIABILITY AND CLAIMS (INCLUDING THIRD PARTY CLAIMS) RELATING TO THE PLATFORM AND/OR PARTICIPATION IN THE PROGRAM, INCLUDING, WITHOUT LIMITATION, USING US AS A PAYMENT FACILITATOR, AND COVENANT NOT TO SUE US FOR THE SAME.
IF YOU HAVE ANY BASIS FOR RECOVERING DAMAGES (INCLUDING, WITHOUT LIMITATION, BREACH OF THIS AGREEMENT) AGAINST US, YOU AGREE THAT YOUR EXCLUSIVE REMEDY AGAINST US AND OUR AFFILIATES IS TO RECOVER DIRECT DAMAGES UP TO A MAXIMUM, AGGREGATE AMOUNT EQUAL TO THE TOTAL AMOUNT OF CLEARED FUNDS RECEIVED BY US AND NOT FORWARDED TO YOU DURING THE MOST RECENT PRIOR TWELVE-MONTH PERIOD. YOU CANNOT RECOVER, AND EXPRESSLY WAIVE AND RELEASE YOUR RIGHT TO, AND COVENANT NOT TO SUE FOR, ANY OTHER DAMAGES OR LOSSES, INCLUDING, WITHOUT LIMITATION DIRECT DAMAGES, CONSEQUENTIAL DAMAGES, LOST PROFITS, SPECIAL DAMAGES, INDIRECT DAMAGES, INCIDENTAL DAMAGES, AND PUNITIVE DAMAGES. THESE LIMITATIONS AND EXCLUSIONS APPLY EVEN IF THIS REMEDY DOES NOT FULLY COMPENSATE YOU FOR ANY LOSSES OR FAILS OF ITS ESSENTIAL PURPOSE OR IF WE KNEW OR SHOULD HAVE KNOWN ABOUT THE POSSIBILITY OF THE DAMAGES.
If a legal dispute of any kind whatsoever arises between Us and You or You and any Participating Member (a "Dispute"), the parties to the Dispute shall make a good faith attempt to settle the Dispute by mediation in the following venue: (i) in the case of a Dispute between Us and You, Oklahoma County, Oklahoma; and (ii) in the case of a Dispute between You and a Participating Member, in the county (or equivalent) in which the Participating Member received Professional Services. If the Dispute cannot be settled by mediation, either party may give the other party and the mediator a written notice terminating the mediation process, and the Dispute may then be resolved by litigation in the venue set forth in Section 11.
This Section 6 shall survive the termination of this Agreement.
By creating an account, participating in the Program, using the Platform, and/or otherwise offering or providing any treatment to Participating Members, YOU AGREE AND EXPRESSLY CONSENT THAT WE AND OUR AUTHORIZED ENTITIES (AS DEFINED BELOW) MAY, FROM TIME TO TIME, MAKE CALLS, SEND TEXT MESSAGES, AND SEND EMAILS TO YOU FOR ANY REASON AT ANY TELEPHONE NUMBER (INCLUDING WIRELESS TELEPHONE NUMBERS) OR EMAIL ADDRESSES THAT YOU PROVIDE. The manner in which these calls, text messages, or emails are made to you may include, without limitation, the use of pre-recorded/artificial voice messages, automatic telephone dialing system, bulk email platforms, and artificial intelligence platforms, and these calls, texts, or emails could result in charges to you depending upon your service plan. Unless you opt out, you also agree that we and our Authorized Entities may, to the extent permitted by law, use any other electronic means of communication. THIS CONSENT MAY BE REVOKED AT ANY TIME AND BY ANY REASONABLE MEANS, AND IT IS NOT A CONDITION OF PURCHASING ANY OF OUR PRODUCTS OR USING OUR WEBSITE OR ANY SERVICES WE PROVIDE. Reasonable means of revocation may include texting the words "STOP," "QUIT," "END," "REVOKE," "OPT-OUT," "CANCEL," or "UNSUBSCRIBE" in response to a robotext, or you may revoke consent using an automated, interactive key press-activated mechanism on an automated call or through a website or telephone number if such a mechanism is provided by us. You may also call or email us at **___** and **__**. For purposes of this disclosure, "Authorized Entities" means our employees, agents and independent contractors, together with each of their respective principals, agents, affiliates, successors and assigns.
We may use any information that You or any third party provides to Us as set forth in our Privacy Policy, which is found on our Website and incorporated by reference herein. WHILE WE WILL USE YOUR INFORMATION AS DESCRIBED IN OUR PRIVACY POLICY, NONE OF THE INFORMATION THAT YOU PROVIDE TO US SHALL BE TREATED AS CONFIDENTIAL OR PROPRIETARY. YOU AGREE THAT WE UNDERTAKE NO OBLIGATION TO REVIEW, SECURE OR RETURN SUCH INFORMATION TO YOU.
If any part of this Agreement shall be determined to be invalid, illegal or unenforceable by any valid Act of Congress or act of any legislature or by any regulation duly promulgated by the United States or a state acting in accordance with the law, or declared null and void by any court or other tribunal of competent jurisdiction, then such part shall be reformed, if possible, to conform to the law and, in any event, the remaining parts of this Agreement shall be fully effective and operative insofar as reasonably possible.
Upon the written request of the Secretary of Health and Human Services or the Comptroller General or any of their duly authorized representatives, We and You will make available those contracts, books, documents, and records necessary to verify the nature and extent of the costs of providing services under this Agreement. If You or We carry out any of the duties of this Agreement through a subcontract with a value of $10,000 or more over a twelve (12) month period with a related individual organization, this requirement will be included in any such subcontract. This Section is included pursuant to and is governed by the requirements of 42 U.S.C. § 1395x(v)(l) and the regulations promulgated thereunder. No attorney-client, accountant-client, or other legal privilege will be deemed to have been waived by Practice or Provider by virtue of this Agreement. This paragraph shall survive the termination of this Agreement.
ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO A DISPUTE BETWEEN US AND YOU SHALL BE BROUGHT EXCLUSIVELY IN THE DISTRICT COURT OF OKLAHOMA COUNTY, OKLAHOMA, OR IF SUBJECT MATTER JURSIDICTION REQUIRES, IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA. ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO A DISPUTE BETWEEN YOU AND A PARTICIPATING MEMBER SHALL BE BROUGHT EXCLUSIVELY IN THE STATE AND FEDERAL COURTS SITUATED IN THE COUNTY (OR EQUIVALENT) IN WHICH THE PARTICIPATING MEMBER RECEIVED PROFESSIONAL SERVICES. BY EXECUTION AND DELIVERY OF THIS AGREEMENT, YOU AND WE IRREVOCABLY ACCEPT THE JURISDICTION AND VENUE OF SUCH COURTS. EACH PARTY UNDERSTANDS THE CONSTITUTIONAL RIGHT OF DUE PROCESS THAT GUARANTEES THAT A PARTY MUST HAVE MINIMUM CONTACTS WITH THE STATE BEFORE THE COURT'S EXERCISE OF IN PERSONAM JURISDICTION OVER ANY PARTY, AND EACH PARTY SPECIFICALLY WAIVES THIS CONSTITUTIONAL RIGHT. This paragraph shall survive the termination of this Agreement.
You may not assign or delegate this Agreement or any of Your rights or duties set forth herein without Our prior written consent, which may be withheld for any reason or for no reason at all.
This Agreement and Our Privacy Policy sets forth the entire agreement and understanding of the parties hereto in respect of the transactions contemplated hereby, and supersedes all prior agreements, arrangements and understandings relating to the subject matter hereof. No party hereto has relied upon any oral or written statement, representation, warranty, covenant, condition, understanding or agreement made by any other party or any representative, agent or employee thereof, except for those expressly set forth in this Agreement or in the exhibits hereto, if any. WE MAY CHANGE THE TERMS OF THIS AGREEMENT AT ANY TIME, AND WE WILL TELL YOU WHEN WE DO. PARTICIPATING IN THE PROGRAM, USING THE PLATFORM, AND/OR OTHERWISE OFFERING OR PROVIDING ANY TREATMENT TO ANY PARTICIPATING MEMBERS AFTER THE CHANGES BECOME EFFECTIVE MEANS YOU AGREE TO THE NEW TERMS. TO THE EXTENT THERE IS ANY INCONSISTENCY OR OTHER CONFLICT, THE TERMS OF THIS AGREEMENT SHALL SUPERCEDE AND PREVAIL OVER THE TERMS OF ANY ORDER; ANY COMMUNICATIONS BETWEEN YOU AND US AND YOU AND PARTICIPATING MEMBERS; AND ANY OTHER MATERIALS THAT MAY BE PUBLISHED BY US FROM TIME TO TIME.
No waiver by Us of any right under this Agreement, nor any failure by Us to exercise any right under this Agreement, shall be deemed a waiver of any of Our present or future rights under this Agreement.
You may share protected health information with Us from time to time in connection with this Agreement. In such case, we agree to abide by all applicable federal and state patient confidentiality laws. To that end, We agree to be bound by the terms of the Business Associate Agreement attached hereto as Addendum A, which are hereby incorporated herein by this reference.
WE DO NOT PROVIDE MEDICAL OR ANY OTHER HEALTH CARE ADVICE, DIAGNOSIS, OR TREATMENT. ALWAYS SEEK THE ADVICE OF YOUR PHYSICIAN OR OTHER QUALIFIED HEALTH CARE PROVIDER WITH ANY QUESTIONS YOU MAY HAVE REGARDING A MEDICAL CONDITION, DIET, FITNESS, OR WELLNESS PROGRAM. NEVER DISREGARD PROFESSIONAL MEDICAL ADVICE OR DELAY IN SEEKING IT BECAUSE OF INFORMATION YOU ACCESSED ON OR THROUGH THE PLATFORM.
We do not hold records for healthcare providers or other medical or case management purposes. WE HAVE NO OBLIGATION TO YOU OR PARTICIPATING MEMBERS TO KEEP RECORDS SECURE OR CONFIDENTIAL.
You must comply with all domestic and international export laws and regulations that apply to the Platform, which include restrictions on destinations, end users, and end use.
[Addendum A follows]
This Business Associate Agreement (this "Addendum") is made a part of the Referral Service Program Agreement ("Agreement") between Us ("Business Associate") and You ("Covered Entity").
A. Covered Entity wishes to disclose certain information to Business Associate in connection with Business Associate's duties under the Agreement, some of which may constitute Protected Health Information ("PHI").
B. Covered Entity and Business Associate intend to protect the privacy and provide for the security of PHI disclosed to Business Associate in connection with the Agreement in compliance with the Health Insurance Portability and Accountability Act of 1996, Public Law 104-191 ("HIPAA"), the Health Information Technology for Economic and Clinical Health Act, Public Law 111-005 (the "HITECH Act"), and regulations promulgated thereunder by the U.S. Department of Health and Human Services (the "HIPAA Regulations") and other applicable laws, including without limitation, California's patient privacy laws, as such laws may be amended from time to time.
C. As part of the HIPAA Regulations, the Privacy Rule and the Security Rule require Covered Entity to enter into a contract containing specific requirements with Business Associate prior to the disclosure of PHI, as set forth in, but not limited to, Title 45, Sections 164.314(a), 164.502(e) and 164.504(e) of the Code of Federal Regulations ("CFR") and contained in this Addendum.
In consideration of the foregoing Recitals, which shall be deemed substantive provisions of this Agreement, and the mutual promises below and the exchange of information pursuant to this Addendum, the Parties agree as follows:
A. Catch-all definition: The following terms used in this Addendum shall have the same meaning as those terms in the HIPAA Rules: Breach, Data Aggregation, Designated Record Set, Disclosure, Health Care Operations, Individual, Minimum Necessary, Notice of Privacy Practices, Protected Health Information, Required By Law, Secretary, Security Incident, Business Associate, Unsecured Protected Health Information, and Use.
B. Specific definitions: "HIPAA Rules" shall mean the Privacy, Security, Breach Notification, and Enforcement Rules at 45 CFR Part 160 and Part 164.
Business Associate agrees to:
A. Use or Disclosure. Not use or disclose protected health information other than as permitted or required by law.
B. Appropriate Safeguards. Use appropriate safeguards, and comply with Subpart C of 45 CFR Part 164 with respect to electronic protected health information, to prevent use or disclosure of protected health information.
C. Reporting of Improper Access, Use or Disclosure. 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 CFR 164.410, and any security incident of which it becomes aware. Business Associate shall notify Covered Entity in writing within three (3) business days of any security incident, as defined in the Security Rule, suspected or actual breach of security, intrusion or unauthorized access, use, or disclosure of PHI of which Business Associate becomes aware and/or any actual or suspected access, use, or disclosure of data in violation of the Agreement, this Addendum, or any applicable federal or state laws or regulations. Business Associate shall take (i) prompt corrective action to cure any such deficiencies and (ii) any action pertaining to such security incident, unauthorized access, use, or disclosure required by applicable federal and state laws and regulations. Business Associate also shall, following the discovery of any Breach of Unsecured PHI, notify Covered Entity in writing of such Breach without unreasonable delay and in no case later than three (3) business days after discovery. The notice shall include the following information if known (or can be reasonably obtained) by Covered Entity: (i) contact information for the individuals who were or who may have been impacted by the Breach (e.g., first and last name, mailing address, street address, phone number, email address); (ii) a brief description of the circumstances of the Breach, including the date of the Breach and date of discovery (as defined in 42 U.S.C. § 17932(c)); (iii) a description of the types of Unsecured PHI involved in the Breach (e.g., names, social security numbers, date of birth, addresses, account numbers of any type, disability codes, diagnostic and/or billing codes and similar information); (iv) a brief description of what the Business Associate has done or is doing to investigate the Breach, mitigate harm to the individuals impacted by the Breach.
D. Mitigation. Business Associate agrees to mitigate, to the extent practicable, any harmful effect that is known to Business Associate of a use or disclosure of PHI in violation of this Addendum.
E. Business Associate's Subcontractors and Agents. In accordance with 45 CFR 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 business associate agree in writing to the same restrictions, conditions, and requirements that apply to the business associate with respect to such information.
F. Access to PHI. To the extent Business Associate maintains a Designated Record Set on behalf of the Covered Entity, Business Associate shall make PHI maintained by Business Associate or its agents or subcontractors in Designated Record Sets available to Covered Entity for inspection and copying within fifteen (15) days of a request by Covered Entity to enable Covered Entity to fulfill its obligations under the Privacy Rule, including, but not limited to, 45 C.F.R. § 164.524. If Business Associate maintains PHI in an electronic format, Business Associate shall provide such information in electronic format to enable Covered Entity to fulfill its obligations under the HITECH Act, including, but not limited to, 42 U.S.C. § 17935(e).
G. Amendment of PHI. To the extent Business Associate maintains a Designated Record Set on behalf of Covered Entity, within thirty (30) days of receipt of a request from the Covered Entity or an individual for an amendment of PHI or a record about an individual contained in a Designated Record Set, Business Associate or its agents or subcontractors shall make any amendments that Covered Entity directs or agrees to in accordance with the Privacy Rule.
H. Accounting Rights. Within thirty (30) days of notice by Covered Entity of a request for an accounting of disclosures of PHI, Business Associate and its agents or subcontractors shall make available to Covered Entity the information required to provide an accounting of disclosures to enable Covered Entity to fulfill its obligations under the Privacy Rule, including, but not limited to, 45 C.F.R. § 164.528, and its obligations under the HITECH Act, including but not limited to 42 U.S.C. § 17935(c), as determined by Covered Entity. The provisions of this subparagraph II.H shall survive the termination of the Agreement and this Addendum.
I. Obligations. To the extent the business associate is to carry out one or more of covered entity's obligation(s) under Subpart E of 45 CFR Part 164, comply with the requirements of Subpart E that apply to the covered entity in the performance of such obligation(s).
J. Governmental Access to Records. Make its internal practices, books, and records available to the Secretary, as well as to Covered Entity, for purposes of determining compliance with the HIPAA Rules.
K. Minimum Necessary. Business Associate (and its agents or subcontractors) shall request, use and disclose only the minimum amount of Protected Information necessary to accomplish the purpose of the request, use or disclosure. Business Associate understands and agrees that the definition of "minimum necessary" is in flux and shall keep itself informed of guidance issued by the Secretary with respect to what constitutes "minimum necessary."
A. Permitted Uses. Business Associate shall not use PHI in any manner that would constitute a violation of the Privacy Rule or the HITECH Act. However, Business Associate may use PHI (i) for the proper management and administration of Covered Entity, (ii) to carry out the legal responsibilities of Covered Entity, or (iii) for Data Aggregation purposes for the Health Care Operations of Covered Entity.
B. Permitted Disclosures. Business Associate shall not disclose PHI in any manner that would constitute a violation of the Privacy Rule or the HITECH Act if so disclosed by Covered Entity. However, Business Associate may disclose PHI (i) for the proper management and administration of Covered Entity; (ii) to carry out the legal responsibilities of Covered Entity; (iii) as required by law; or (iv) for Data Aggregation purposes for the Health Care Operations of Covered Entity. If Business Associate discloses PHI to a third party, Business Associate must obtain, prior to making any such disclosure, (i) reasonable written assurances from such third party that such PHI will be held confidential as provided pursuant to this Addendum and only disclosed as required by law or for the purposes for which it was disclosed to such third party, and (ii) a written agreement from such third party to immediately notify Business Associate of any breaches of confidentiality of the PHI, to the extent it has obtained knowledge of such breach.
C. Prohibited Uses and Disclosures under HITECH. Notwithstanding any other provision in this Addendum, Business Associate shall comply with the following requirements: (i) Business Associate shall not use or disclose PHI for fundraising or marketing purposes, except as consistent with the requirements of 42 U.S.C. § 17936; (ii) Business Associate shall not disclose PHI to a health plan for payment or health care operations purposes if the patient has requested this special restriction, and has paid out of pocket in full for the health care item or service to which the PHI solely relates, 42 U.S.C. § 17935(a), 45 C.F.R. § 164.22(a); (iii) Business Associate shall not directly or indirectly receive remuneration in exchange for PHI, except with the prior written consent of Covered Entity and as permitted by the HITECH Act, 42 U.S.C. § 17935(d)(2), 45 C.F.R. § 164.502(a); however, this prohibition shall not affect payment by Covered Entity to Business Associate for services provided pursuant to the Agreement.
A. Material Breach by Business Associate. A breach by Business Associate of any provision of this Addendum, as determined by Covered Entity, shall constitute a material breach of the Agreement and shall provide grounds for termination of the Agreement, any provision in the Agreement to the contrary notwithstanding, with or without an opportunity to cure the breach.
B. Effect of Termination. Upon termination of the Agreement or this Addendum for any reason, business associate, with respect to protected health information received from covered entity, or created, maintained, or received by business associate on behalf of covered entity, shall:
C. Survival. The obligations of business associate under this Section shall survive the termination of the Agreement and this Addendum.
A. Indemnification; Limitation of Liability. To the extent permitted by law, Business Associate shall indemnify, defend and hold harmless Covered Entity from any and all liability, claim, lawsuit, injury, loss, expense or damage resulting from or relating to the acts or omissions of Business Associate in connection with the representations, duties and obligations of Business Associate under this Addendum. Any limitation of liability contained in the Agreement shall not apply to the indemnification requirement of this provision. This provision shall survive the termination of the Agreement and this Addendum.
B. Assistance in Litigation. Business Associate shall make itself and any subcontractors, consultants or agents assisting Business Associate in the performance of its obligations under the Agreement or Addendum available to Covered Entity, at no cost to Covered Entity, to testify as witnesses, or otherwise, in the event of litigation or administrative proceedings being commenced against Covered Entity, its directors, officers or consultants based upon a claim of violation of HIPAA, the HITECH Act, or other laws related to security and privacy, except where Business Associate or its subcontractor, consultant or agent is named as an adverse party.
C. Regulatory References. A reference in this Addendum to a section in the HIPAA Rules means the section as in effect or as amended.
D. Amendment. The Parties agree to take such action as is necessary to amend this Addendum from time to time as is necessary for compliance with the requirements of the HIPAA Rules and any other applicable law.
E. Interpretation. Any ambiguity in this Addendum shall be interpreted to permit compliance with the HIPAA Rules.
F. No Third-Party Beneficiaries. Nothing express or implied in the Agreement or this Addendum is intended to confer, nor shall anything herein confer upon any person other than Covered Entity, Business Associate and their respective successors or assigns, any rights, remedies, obligations or liabilities whatsoever.