Calvient Technologies, LLC, an Oklahoma limited liability company ("Calvient," "we," or "us"), owns and operates the Allora marketplace, which enables consumers to search for, compare, and connect with independent healthcare providers offering transparent, up-front pricing (the "Program") through Calvient's web and mobile application and related services (the "Platform," as defined below). This Referral Service Program Agreement (this "Agreement") governs your participation as a healthcare provider in the Program. You ("you" or "your") accept this Agreement by creating an account, clicking to accept, participating in the Program, using the Platform, and/or by offering or providing any services to consumers via the Platform.
As used herein, the following terms have the following meanings:
1.1 "Participating Members" 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.
1.2 "Platform" 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.
1.3 "Government Program" means Medicare, Medicaid, TRICARE, CHAMPVA, VA, FEHBP, state or local equivalents, and any other federal or state health care program where billing is required or reimbursement is available.
1.4 "Non-Government Program Services" means services not covered, reimbursable, or otherwise billable to any Government Program.
By accepting this Agreement, You agree as follows:
2.1.1 Account. 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. Unless otherwise indicated, you must be at least 18 to use the Platform.
2.1.2 Our License to You. All rights in and to the Program and the Platform (including, without limitation, the technology, content, trademarks, look & feel, etc.) are owned by Us (or our licensors). 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 in any manner whatsoever that is not expressly authorized in this Agreement. Additionally, You're not allowed to access, monitor, copy, scrape/crawl, download, reproduce, or otherwise use anything on the Platform using any robot, spider, scraper, other automated means, or automated assistants (including, but not limited to, those that operate by interacting with or otherwise making use of your browser, such as AI-powered assistants) for any purpose whatsoever. We reserve all rights, title, and interest (including the right to enforce any such rights) not expressly granted in this paragraph.
2.1.3 Your License to Us. Subject to Section 2.6, You grant us a non-exclusive, transferable, sublicensable, royalty-free, worldwide license to use, host, store, reproduce, modify, distribute, publicly display, perform, translate, and create derivative works of any information, data, and other content made available by you or on your behalf in connection with your use of the Platform ("Your Content"), solely as reasonably necessary to operate, maintain, improve, and market the Platform and related services. This license remains in effect even if you stop using the Platform.
2.1.4 Using Third-Party Apps and Third-Party Services. 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.
2.1.5 Service Availability. 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.
2.1.6 Government Program Exclusion. The Program is not available for services covered by any Government Program. Orders placed and fulfilled through the Platform must be for Non-Government Program Services only. You shall not submit claims to, or seek reimbursement from, any Government Program for services ordered or paid for through the Platform.
Participating Members will use our Platform to search for and submit electronic requests for medical services ("Professional Services") to the healthcare providers listing their respective Professional Services for a fee on the Platform (each an "Order"). 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 for the fee set forth in the Order. 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. All Orders must be for Non-Government Program Services
2.3.1 Best Efforts; Professional Conduct. You shall devote your best efforts to the performance of the Professional Services. You shall discharge all duties in a professional and competent manner.
2.3.2 Professional Independence. 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.
2.3.3 Licenses/Permits. 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 Professional 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.
2.3.4 Compliance with Laws, Regulations and Standards. 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:
2.4.1 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.
2.4.2 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.
2.4.3 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.
2.4.4 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.
2.4.5 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.
2.4.6 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 the Eliminating Kickbacks in Recovery Act.
2.4.7 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 from or on behalf of persons who are not participating in the Program, except where a different rate is required or permitted under an applicable payer contract or by law (including Medicare, Medicaid, or other government health programs). 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 and our assigns permission to request and 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. You shall comply with Our reasonable requests for information.
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.
3.1 HOW WE SELECT HEALTHCARE PROVIDERS. THE PLATFORM IS AN OPEN MARKETPLACE. ANY INDEPENDENT HEALTHCARE PROVIDER MAY PARTICIPATE IF SUCH PROVIDER: (I) AGREES TO THE TERMS OF THIS AGREEMENT; (II) ACTS INDEPENDENTLY AND MAINTAINS PROFESSIONAL ACCOUNTABILITY FOR ALL CARE; (III) HOLDS AND MAINTAINS ALL LICENSES, PERMITS, REGISTRATIONS, AND, WHERE APPLICABLE, CONTROLLED-SUBSTANCE AUTHORIZATIONS REQUIRED TO TREAT PATIENTS IN THE RELEVANT STATE(S); (IV) COMPLIES 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) IS NOT EXCLUDED, SUSPENDED, OR DEBARRED FROM ANY FEDERAL OR STATE HEALTH CARE PROGRAM AND MEETS ALL OTHER REPRESENTATIONS MADE IN THIS AGREEMENT; AND (VI) OTHERWISE COMPLIES WITH THE PROGRAM'S LAWFUL TERMS AND POLICIES. THERE IS NO EXCLUSIVITY, NOR IS THERE ANY PROMISED REFERRAL VOLUME WHETHER MINIMUM, MAXIMUM, OR OTHERWISE.
3.2 NO FEES. 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.
3.3 HOW WE PRESENT HEALTHCARE PROVIDERS TO PARTICIPATING MEMBERS. 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., RATES/FEES, 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.
3.4 OUR RELATIONSHIP WITH PARTICIPATING MEMBERS AND HEALTHCARE PROVIDERS. WE OPERATE A MARKETPLACE THAT ALLOWS CONSUMERS TO SEARCH FOR, COMPARE, AND CONNECT WITH INDEPENDENT PROVIDERS AND TO PURCHASE SERVICES DIRECTLY FROM THOSE PROVIDERS. WHEN A PARTICIPATING MEMBER SUBMITS AN ORDER, IT'S DIRECTLY TO THE PARTICIPATING HEALTHCARE PROVIDER, AND WHEN THE PARTICIPATING HEALTHCARE PROVIDER ACCEPTS THAT ORDER, SUCH HEALTHCARE PROVIDER ENTERS INTO AN AGREEMENT WITH THE PARTICIPATING MEMBER TO PROVIDE THE REQUESTED PROFESSIONAL SERVICES IN EXCHANGE FOR THE RATE OR FEE SET FORTH IN THE ORDER. WE ARE NOT A "CONTRACTUAL PARTY," AND WE DO NOT FURNISH MEDICAL SERVICES, DO NOT PRACTICE MEDICINE, ARE NOT AN INSURER, AND ARE NOT THE AGENT OF ANY HEALTHCARE PROVIDER OR PARTICIPATING MEMBER. YOU AND OTHER HEALTHCARE PROVIDERS PARTICIPATING IN THE PROGRAM ARE INDEPENDENT CONTRACTORS AND ARE SOLELY RESPONSIBLE FOR THE CARE PROVIDED.
3.5 RESTRICTIONS. A HEALTHCARE PROVIDER WILL BE SUSPENDED OR REMOVED IF SUCH PROVIDER FAILS 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 PARTICIPATION IN THE PROGRAM BEYOND ABIDING BY THE LAWFUL TERMS AND CONDITIONS OF THE PROGRAM AND THE HEALTHCARE PROVIDER'S EXERCISING THEIR INDEPENDENT CLINICAL JUDGMENT IN A COMPETENT AND TIMELY MANNER.
If You accept an Order, then the following terms apply:
4.1 Approved Charge. 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. You must honor it.
4.2 Participating Member's Obligation. Participating Members shall be responsible for paying the Approved Charge at or before the time Professional Services are rendered by You. We (or our affiliate) will take the Participating Member's payment method details via the Platform and forward them to You via the Platform so that You may charge the Participating Member. You may utilize that information to charge the Participating Member directly in advance of You providing the Professional Services, or You may wait to charge the Participating Member directly at your place of business at the time Professional Services are rendered. In our terms of service with the Participating Members, we advise them that You are legally permitted to charge them in advance. You represent to Us that you will safeguard all Participating Member's payment method details in accordance with the Payment Card Industry Data Security Standard. You shall not submit any claim or encounter related to an Order to a Government Program, and You will obtain any self-pay acknowledgments required by applicable law.
4.3.1. While We make good faith efforts to ensure the accuracy of our Platform, we can't guarantee that everything on it is accurate given that (i) the Orders, payment method details, and all other information relating to the Participating Members are provided by such Participating Members, and (ii) all information relating to the Professional Services offered for sale on the Platform are provided by You and the other healthcare providers using the Platform. To the fullest extent permitted by applicable law, we shall not be held responsible for any errors, interruptions, or missing bits of information, although we will make good faith efforts to correct/fix them as soon as We can.
4.3.2 Our Platform is not a recommendation or endorsement of any Participating Member or healthcare provider utilizing the Platform.
4.3.3 As stated throughout this Agreement, We're not a party to the terms between You and the Participating Members. You are solely responsible for competently providing Professional Services, and the Participating Members are solely responsible for paying You the Approved Charge.
4.3.4 We make no promises that any Participating Members will show up to their appointments or otherwise permit you to provide the Professional Services, nor do we make any promises that the Participating Members will comply with your instructions or honor their obligations to You. Subject to the dispute resolutions set forth in this Agreement, any claims that You may have relating to any Professional Services provided in connection with the Program or Platform shall be pursued against only the Participating Member from whom You accepted an Order, and no such claim shall be pursued against Us. You promise not to sue Us for any such claims.
4.3.5 We do not have any say regarding cancellations or no-shows. If a Participating Member cancels an Order or doesn't show up for an appointment, any cancellation/no-show fee and any refund will depend on your cancellation/no-show policy ("Cancellation Policy"). Such Cancellation Policy shall be included in your listing on the Platform. If no Cancelation Policy is posted, then applicable law shall determine whether or not a cancellation/no-show fee and/or a refund must be paid.
4.3.6 We take the Participating Member's payment method details and forward them to You merely as a convenience to You and the Participating Member. We are not a financial institution, trustee, escrow agent, fiduciary, bailee, insurer, or agent for You or any Participating Member (and no special deposit, trust, escrow, bailment, constructive trust, or other relationship is created), nor are We undertaking any duty.
4.3.7 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 or have any responsibility relating to collection, settlement, or timing of any payment; (iii) We have no duty (fiduciary or otherwise) to You; and (iv) We have no obligation to collect, advance or front funds.
4.3.8 You agree to defend, indemnify, and hold us harmless from any claims, demand, liabilities, expenses (including attorney's fees and litigation costs), and any other amounts paid by Us relating to your breach of this Agreement or to any Professional Services provided by You, including, without limitation, any amounts or refunds We pay to resolve bona fide (as determined in good faith by Us) claims or contentions by Participating Members that You failed to provide competent Professional Services in a timely manner or otherwise failed to fulfill your obligations to them. You hereby authorize Us to charge You for reimbursement of such amounts or refunds We pay to resolve bona fide (as determined in good faith by Us) claims or contentions by Participating Members by charging the payment method given to Us (each a "Charge-Back"). This paragraph shall survive the termination of this Agreement.
4.4 Payment Information. Participating Members shall, at all times, maintain with Us the most-current and accurate payment information needed to allow Us to facilitate the sharing of their payment information to healthcare providers accepting their Orders on the Platform, and You shall, at all times, maintain with Us the most-current and accurate payment information needed to allow Us to process Charge-Backs. By providing Us with payment information, You (i) authorize Us to use any updated account information regarding your selected payment method provided by your issuing bank or the applicable payment network; (ii) represent that You are authorized to use the payment method You provided and that any payment information You provide is true and accurate; and (iii) authorize Us to use such information to charge You for Charge-Backs.
This Agreement shall remain in effect on a month-to-month basis 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 at the expiration of the month in which You or we cancel, 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.
6.1. Disclaimer. WE MAKE NO WARRANTIES, EXPRESS OR IMPLIED, GUARANTEES, OR REPRESENTATIONS WITH RESPECT TO ANY ASPECT OF THE PROGRAM, PLATFORM, OR PROFESSIONAL SERVICES, INCLUDING, WITHOUT LIMITATION, ACCURACY OF INFORMATION PRESENTED ON THE PLATFORM, FUNCTIONALITY OF THE PROGRAM OR PLATFORM, QUALITY OR TIMELINESS OF PROFESSIONAL SERVICES, AND LIKELIHOOD OF PAYMENT. 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 AND PLATFORM 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. WE DO NOT GUARANTEE THE ACCURACY, APPROPRIATENESS, QUALITY, TIMELINESS, SUCCESS, OR ANY OTHER ASPECT WHATSOEVER OF THE PROGRAM OR PLATFORM. 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, AND COVENANT NOT TO SUE US FOR THE SAME.
6.2 Limitation of Damages. IF YOU HAVE ANY BASIS FOR RECOVERING DAMAGES (INCLUDING, WITHOUT LIMITATION, FOR BREACH OF THIS AGREEMENT) AGAINST US, YOUR EXCLUSIVE REMEDY AGAINST US AND OUR AFFILIATES IS TO RECOVER DIRECT DAMAGES IN AN AGGREGATE AMOUNT NOT TO EXCEED THE FEES, IF ANY, THAT WE CHARGED YOU TO PARTICIPATE IN THE PROGRAM OR USE THE PLATFORM DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. EXCEPT FOR DIRECT DAMAGES UP TO THAT CAP, YOU CANNOT RECOVER—AND EXPRESSLY WAIVE, RELEASE, AND COVENANT NOT TO SUE FOR—ANY OTHER DAMAGES OR LOSSES, INCLUDING, WITHOUT LIMITATION, CONSEQUENTIAL, SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, OR PUNITIVE DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, REVENUE, DATA, BUSINESS OPPORTUNITIES, GOODWILL, OR USE, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF WE KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
6.3 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. The costs of the mediator shall be split evenly among the parties to the mediation, and each party shall bear its own legal fees and expenses. 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.
6.4 Survival. 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 +1 (888) 615-3001 and hello@allora.health. 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, EXCEPT AS OTHERWISE PROVIDED IN THE BUSINESS ASSOCIATE ADDENDUM ATTACHED HERETO AS ADDENDUM A.
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 Us or You 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 JURISIDICTION 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. Any assignment or delegation in violation of this Section 12 shall be deemed void ab initio. We are not subject to any similar restriction and may freely assign, delegate, and transfer Our rights and obligations to any person or entity.
This Agreement, the Business Associate Addendum attached hereto as Addendum A, and Our Privacy Policy set 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 addenda and 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 SUPERSEDE 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 limited protected health information ("PHI") with Us from time to time in connection with this Agreement. In such cases, 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 Addendum attached hereto as Addendum A, which is incorporated herein by this reference. For clarity, Our role as a Business Associate is limited solely to handling the minimum necessary PHI required to facilitate payments or administrative transactions through the Platform, and We do not act as a custodian or processor of clinical or medical records.
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. EXCEPT AS EXPRESSLY STATED OTHERWISE IN THE BUSINESS ASSOCIATE ADDENDUM ATTACHED HERETO AS ADDENDUM A, 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.
You and We agree that except for the Business Associate Addendum attached hereto as Addendum A, (a) this Agreement is entered into by Us for the express, intended benefit of Participating Members, (b) each of the Participating Members shall be and constitute an intended third-party beneficiary of Your representations, warranties, covenants and agreements contained herein, and (c) each of the Participating Members shall be entitled to enforce the terms and provisions of this Agreement.
Upon our request, You shall give Us and our representatives access to your books and records for the sole purpose of determining your compliance with the terms of this Agreement. We shall be entitled to no more than one (1) such audit per year, all non-public, proprietary information shared by You shall be kept strictly confidential, and our audit shall be conducted during normal business hours in a manner that does not unreasonably interfere with your operations. This Section 20 shall survive termination of this Agreement.
[Addendum A follows]
THIS BUSINESS ASSOCIATE ADDENDUM (this "Addendum" or "BAA") is made a part of the Referral Service Program Agreement ("Agreement") between Us and You. All capitalized terms that are not specifically defined in this Addendum shall have the meaning ascribed to them in the Agreement.
A. You wish to disclose certain information to Us in connection with your participation in the Program and use of the Platform in accordance with the terms of the Agreement (the "Covered Services"), some of which may constitute 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 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) "Business Associate" has the definition given to it under HIPAA.
(b) "Breach" has the definition given to it under HIPAA.
(c) "Covered Entity" has the definition given to it under HIPAA.
(d) "Designated Record Set" has the definition give to it under HIPAA.
(e) "Protected Health Information" or "PHI" has the definition given to it under HIPAA and for purposes of this BAA is limited to the minimum necessary PHI within Your data to which We have access solely for purposes of payment facilitation, transaction processing, or related administrative functions in connection with Your permitted use of the Covered Services.
(f) "Required by Law" has the definition given to it under HIPAA.
(g) "Security Incident" has the definition given to it under HIPAA.
(h) "Services Agreement(s)" means the written agreement(s) entered into between You and Us for provision of the Covered Services, including, without limitation, the Agreement, which agreement(s) may be in the form of online terms of service.
This BAA applies to the extent You are acting as a Covered Entity or a Business Associate to create, receive, maintain, or transmit PHI via a Covered Service and to the extent We, as a result, is deemed under HIPAA to be acting as a Business Associate or Subcontractor of You. You acknowledge that this BAA does not apply to (a) any product, service, or feature offered by Us that is not a Covered Service; or (b) any PHI that You create, receive, maintain, or transmit outside of the Covered Services (including Your use of its offline or on-premise storage tools or third-party applications). For avoidance of doubt, this BAA does not apply to clinical or medical records, diagnostic information, or any other PHI not required for payment or administrative facilitation.
(a) Except as otherwise stated in this BAA or the Agreement, We may use and disclose PHI only (i) as permitted or required by the Services Agreements, this BAA, and/or applicable law, provided that Our use or disclosure of PHI shall be limited to the minimum necessary to perform payment facilitation or related administrative services under the Agreement. or (ii) as Required by Law.
(b) We may use and disclose PHI for Our proper management and administration and to carry out Our legal responsibilities, provided that any disclosure of PHI for such purposes may only occur if (i) Required by Law; or (ii) We obtain written reasonable assurances from the person to whom PHI will be disclosed that it will be held in confidence, used only for the purpose for which it was disclosed, and that We will be notified of any Breach or Security Incident.
(a) You will not request that We or the Covered Services use or disclose PHI in any manner that would not be permissible under HIPAA if done by You (if You are a Covered Entity) or by the Covered Entity to which You are a Business Associate (unless expressly permitted under HIPAA for a Business Associate).
(b) For end users that use the Covered Services in connection with PHI, You will implement and use controls, including those available within the Covered Services, if any, to ensure your use of PHI is limited to the Covered Services. You acknowledge and agree that You are solely responsible for ensuring that Yours and Your end users' use of the Covered Services complies with HIPAA and HITECH.
You and We will each use appropriate safeguards designed to prevent against unauthorized use or disclosure of PHI, and as otherwise required under HIPAA, with respect to the Covered Services. Our safeguard obligations apply only to PHI actually received or maintained by Us for payment facilitation or administrative purposes under the Agreement.
(a) We will promptly notify You of (i) any Security Incident of which We become aware, subject to Section 6(c); and (ii) any Breach that We discover, provided that any notice for Breach will be made promptly and without unreasonable delay, and in no case later than sixty (60) calendar days after discovery. Notifications made under this section will describe, to the extent possible, details of a Breach, including steps taken to mitigate the potential risks and steps We recommend You take to address the Breach.
(b) We will send any applicable notifications to the notification email associated with your use of the Platform or via direct communication with You.
(c) Notwithstanding Section 6(a), this Section 6(c) will be deemed as notice to You that We periodically receive unsuccessful attempts for unauthorized access, use, disclosure, modification, or destruction of information, or interference with the general operation of Our systems and the Covered Services. You acknowledge and agree that even if such events constitute a Security Incident, We will not be required to provide any notice under this BAA regarding such unsuccessful attempts other than this Section 6(c).
We will take appropriate measures to ensure that any Subcontractors used by Us to perform Our obligations under the Services Agreements that require access to PHI are bound by written obligations that provide the same material level of protection for PHI as this BAA. To the extent We use Subcontractors in Our performance of obligations hereunder or under the Agreement, We will remain responsible for their performance as if performed by Us.
You acknowledge and agree that You are solely responsible for the form and content of PHI maintained by You within the Covered Services, including whether You maintain such PHI in a Designated Record Set within the Covered Services. We will provide You with access to Your PHI via the Covered Services so that You may fulfill your obligations under HIPAA with respect to individuals' rights of access and amendment, but will have no other obligations to You or any individual with respect to the rights afforded to individuals by HIPAA with respect to Designated Record Sets, including rights of access or amendment of PHI. You are responsible for managing your use of the Covered Services to appropriately respond to such individual requests.
We will document disclosures of PHI by Us to persons or entities other than You and provide an accounting of such disclosures to You as and to the extent required of a Business Associate under HIPAA and in accordance with the requirements applicable to a Business Associate under HIPAA.
To the extent required by law, and subject to all applicable legal privileges, We will make Our internal practices, books, and records concerning the use and disclosure of PHI received from You, or created or received by Us on behalf of You, available to the Secretary of the U.S. Department of Health and Human Services (the "Secretary") for the purpose of the Secretary determining compliance with this BAA.
(a) This BAA will terminate on the earlier of (i) a permitted termination in accordance with Section 11(b), or (ii) the expiration or termination of all Services Agreements under which You had access to the Covered Service.
(b) If either party materially breaches this BAA, the non-breaching party may terminate this BAA on 30 days' written notice to the breaching party unless the breach is cured within the 30-day period. If a cure under this Section 11(b) is not reasonably possible, the non-breaching party may immediately terminate this BAA, or if neither termination nor cure is reasonably possible under this Section 11(b), the non-breaching party may report the violation to the Secretary, subject to all applicable legal privileges.
(c) If this BAA is terminated earlier than the Services Agreements, You may continue to use the Covered Services in accordance with the Services Agreements, but must delete any PHI You maintains in the Covered Services and cease to further create, receive, maintain, or transmit such PHI to Us.
On termination of the Services Agreements, We will return or destroy all PHI received from You, or created or received by Us on behalf of You; provided, however, that if such return or destruction is not feasible, We will extend the protections of this BAA to the PHI not returned or destroyed and limit further uses and disclosures to those purposes that make the return or destruction of the PHI infeasible.
(a) Survival. Sections 12 (Return/Destruction of Information) and 13 (Miscellaneous) will survive termination or expiration of this BAA.
(b) No Third-Party Beneficiaries. Notwithstanding anything stated to the contrary in the Agreement, nothing express or implied this Addendum is intended to confer, nor shall anything herein confer upon any person, other than You and Us and each of yours and our respective successors or assigns, any rights, remedies, obligations or liabilities whatsoever.