END-USER SOFTWARE SUBSCRIPTION & HIPAA
Business Associate AGREEMENT
This
Master Solution Services Agreement (“Agreement”), effective as of the date of
online acceptance of this Agreement (“Effective Date”) entered into between FREECHIRO.com
[, Inc, a Delaware Corporation DBA as "FREECHIRO.COM" herein
referred to as "FREECHIRO" and the User accepting this Agreement on
behalf of this online Registered Practice herein referred to as “CLIENT”. This
Agreement sets forth the terms and conditions whereby FREECHIRO shall provide
its proprietary Solution (as defined below) and related services to CLIENT on
the terms set forth below. Now, therefore, in consideration of the mutual
covenants contained in this Agreement and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties agree as follows:
1. Definitions.
(a) “Solution” means
the turnkey healthcare computing solution that includes: (i) the hosted FREECHIRO
and third party software applications and (ii) CLIENT care, support,
maintenance and other services as further described in Section 2 and Section 6
and 7 hereto (“Services”). The parties may amend this Agreement to include
additional Hardware, Software or Services from time to time by attaching
mutually agreed upon addendums.
(b) For purposes of this
Agreement, an “Authorized User” is an employee or consultant of CLIENT and,
with respect to the practice portal component of the Solution only, a patient
of CLIENT that has accepted the terms relating to the use of the Solution.
(c) Updates.
For purposes of this Agreement, an “update” means a release or version of the
Software containing minor functional enhancements, error corrections or fixes that
is indicated by a change in the numeric identifier for the Software in the
digit to the right of the decimal. FREECHIRO shall change, update, modify, or
upgrade Solution on a frequent basis to include new features, to meet legal and
compliance requirements and to correct anomalies.
(d) Software subscription
shall mean hosted programs provided by FREECHIRO.
(a)
General:
Subject to the terms of this Agreement, FREECHIRO hereby grants CLIENT a non exclusive,
non transferable FREE subscription to use the Solution as provided by FREECHIRO
solely to be used for purpose for CLIENT’s internal business operations of the
CLIENT, including use by CLIENT’s Authorized Users (as defined above).
(b)
Hosted Services: FREECHIRO will provide CLIENT with access to the online hosted
software subscription, data storage and data access for software and services of
CLIENT's patient, financial and clinical data and its secured electronic
communication with third parties.
(c)
Opt-in Third Party and Add-on services: FreeCHIRO shall provide upgrade
editions or other additional Opt-in Third Party and Add-on services that CLIENT
can subscribe to at will, and Opt out of at any time.
(a) Support. During the term of
this Agreement, FREECHIRO will use commercially reasonable effort to provide
support services; such support shall be remote support only, (UNLESS EXPLICITLY
STATED OTHERWISE) from the FREECHIRO’s Service facilities and could be in the
form of phone, email or online chat or such support services can provided by FREECHIRO's
LOCAL SERVICE PROVIDER. The terms and conditions of such LOCAL SERVICE PROVIDER
based support services, if any, is beyond the scope of this Agreement. In the
case of such LOCAL SERVICE PROVIDER based relationship FREECHIRO has no
contractual obligations to provide direct support services to the CLIENT under
this Agreement. In the event, if the Third Party Software is incapable of
functioning to the satisfaction of CLIENT, FREECHIRO shall be responsible to
provide replacement Third Party Software and its failure to do so shall
constitute a basis for the CLIENT to terminate this Agreement without ANY
liability to FREECHIRO.
4.
Third
Party Software. FREECHIRO program
uses third party software and agrees to use reasonable efforts to document and
escalate Software errors to the Software manufacturer for resolution; provided,
however, FREECHIRO is not responsible for correcting any errors in the third
party Software.
5.
CLIENT
Responsibilities.
(a) General. CLIENT shall be
responsible for: (i) providing sufficient information regarding errors or
nonconformities in the Solution to FREECHIRO; (ii) providing all
reasonable cooperation to FREECHIRO with respect to the Software; (iii)
assuming all risk related to use or misuse by CLIENT’s Authorized Users,
contractors, agents or other third parties; including unauthorized use or
misuse of access passwords; (iv)CLIENT agrees to maintain UserID and password
as private and confidential information and shall not allow sharing of
password; (v) CLIENT agrees to immediately deactivate accounts of employees,
restrict remote access, limit daily access hours or any other authorized users,
that do not or need not have access to the system or notify OR
ITS LOCAL FREECHIRO SERVICE PROVIDER for assistance; (vi) FREECHIRO strongly
recommends CLIENT should secure a backup internet connection from a different
service provider to be able to connect to FREECHIRO in the event of the failure
of the primary internet connection.
(b) CLIENT is
responsible for necessary internet connection, compatible operating system
software and hardware that meets the minimum system and security requirements
as published in the FREECHIRO website under FAQs.
(c) CLIENT understands and agrees that each CLIENT
is allowed 5 GB of total data storage per practice.
FREECHIRO can be configured to connect to the CLIENT’s local server or machine for the purpose of document
storage only. As an option available at no additional cost to CLIENT, FREECHIRO shall provide configuration
assistance to CLIENT to set up storage on a local machine within the CLIENT’s office to store scanned paper charts.
The security and safety and HIPAA and HITECH compliance of such storage on client’s local machine is beyond the
scope of the services provided by FREECHIRO and therefore is beyond the scope of this Agreement. CLIENT
understand and agrees to maintain such storage as required by Law. Storage use over 5GB shall be
charged at $10 per month per additional 1 GB overage.
(d) In connection with
EHR, FREECHIRO shall provide general clinical contents (encounter sheets,
canned sheets, flow-sheets, progress monitor and others), configurations and
related data as it pertains to the CLIENT specialty. CLIENT agrees to review
this data, make changes as need to suit CLIENT's needs.
(e) FREECHIRO shall
create connectivity with CLIENT's external entities such as labs, radiology
center, hospitals pharmacies and others, CLIENT shall be responsible for the
privacy and related HIPAA and HITECH Regulations requirements with these
entities.
(f) FREECHIRO provides
an optional online secured Online Practice Portal module that provides patient
messaging. All patient messages within the Portal are HIPAA compliant. For
messages directly sent to the patient's email address and patient's cell phone
(SMS messaging or text messaging) without the use of the Portal, CLIENT shall
be responsible to maintain HIPAA compliance of these messages such that these
messages shall not include any PHI, private and confidential information of the
patients. CLIENT shall also be responsible for managing the access of the
patient to the portal.
6.
FREECHIRO
Responsibilities.
(a) To
insure that FREECHIRO and FREECHIRO’s employees abide by all applicable federal
and state statutes, regulations, and rules relating to all applicable services hereunder,
and (ii) maintaining the privacy and confidentiality of patient medical
information in its possession as set forth in Section 16 and Section 17.
(b) FREECHIRO
understands and agrees that CLIENT is the OWNER of all CLIENT data and that
PRACTICSUITE is storing the data on behalf of the CLIENT.
(c) During
the term of this Agreement, at the sole discretion of the CLIENT, in writing, FREECHIRO
may send CLIENT’s records in an encrypted electronic format (CD, zip file) to
the CLIENT in a readable format with necessary documentation on the
interpretation of the file. Upon termination or expiration of this Agreement, FREECHIRO
will not be
responsible for these records after delivery to the CLIENT. Additional reasonable
usual an customary charges may be applied at FREECHIRO’s discretion for this
service upon termination of this Agreement.
(d) Maintenance And Upgrade: FREECHIRO agrees not to perform maintenance
or upgrades that would materially and adversely affect the Services except (i)
when maintenance or upgrades are performed during the hours of 10:00 p.m. to 7:00
a.m., Eastern Time (the "Routine Window"), (ii) when the deferral of
such maintenance or upgrades to a routine window would materially and adversely
affect the security or performance of FREECHIRO’s data centers. FREECHIRO shall
perform maintenance or upgrades in such a manner as to utilize the redundancy
of any Services, to minimize the adverse impact on the Services and notify
CLIENT as far in advance as practicable of any maintenance, downtimes or
upgrades.
(e) External
Connectivity: FREECHIRO provides connectivity services to external lab,
radiology, hospital and other medical devices as part of its hosted software
subscription to enable CLIENT to share data between these systems and FREECHIRO.
THE monthly software subscription paid under this agreement shall include the
connectivity interface. Additional development and support work is involved for
the development of the connectivity and maintenance of the connectivity
services. FREECHIRO will work with the external entities to develop such
interfaces by directly charging the external entities and there will be NO COST
to the CLIENT. Such external connectivity availability is dependent upon the
approval of the project and related cost from the external entities.
7.
Proprietary
Rights. All right, title,
and interest in CLIENT’s data will remain the property of CLIENT. FREECHIRO
and its licensors shall respectively retain sole and exclusive ownership of all
right, title and interest in and to the Solution, and any updates, upgrades or
modifications thereof, or in any ideas, know-how, changes, improvements,
enhancements, development and additions or modification to programs and data (encounter
sheets, canned sheets, lookup values and other data) and programs during the
course of this Agreement.
8.
Confidential
Information. CLIENT agrees that
any information regarding the Solution that is marked “confidential” or
“proprietary,” or which by its nature would be confidential, is proprietary to FREECHIRO
and disclosure or use of such nonpublic information would cause substantial
detriment to FREECHIRO. Neither CLIENT nor any of its employees or any
Authorized Users will use for their own account or for the account of any third
party or disclose to any third party any nonpublic information regarding the
Solution. Further, CLIENT agrees that FREECHIRO does not wish to receive any
information that may be considered confidential to CLIENT. Notwithstanding the
foregoing, all CLIENT data accessible to FREECHIRO shall be treated
confidentially in accordance with this Section.
9. Term and Termination.
(a) Term. This Agreement
shall commence on the Effective Date and can be terminated as set forth below.
Either party may terminate this Agreement or the use of FREE version any time
for no cause or breach.
(i) FREECHIRO shall provide
to CLIENT all of CLIENT’s data in a commercially reasonable format. Patient
demographics shall be provided at no cost. For transactional data, FREECHIRO
shall be entitled to usual and customary data extraction charges. For the purpose of
EHR, transactional data shall mean data that is not part of the patient
encounter notes and for the purposes of scheduling and billing module,
transactional data shall mean everything excluding patient demographics data.
(iii) FREECHIRO shall maintain a
copy of the DATA in accordance with and for the period of time as required and
applicable by law.
(a) Warranty. FREECHIRO
warrants to CLIENT that it has the right and authority to grant the rights
described in this Agreement and it will perform its obligations hereunder in a
professional and workman like manner.
(b) Disclaimer. Except for the
limited warranty set forth in Section 12(a) above, the Solution services and all other
services provided as set forth in Sections 6 and 7 are provided to CLIENT on an “AS IS” basis
and without any additional warranty of any kind. NEITHER FREECHIRO NOR ITS
LICENSORS MAKE ANY OTHER WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED,
STATUTORY OR OTHERWISE WITH RESPECT TO THE Solution,
ANY DELAY OR FAILURE OF THE INTERNET, AND FREECHIRO EXPRESSLY DISCLAIMS ALL
IMPLIED WARRANTIES OF NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE. Further, CLIENT expressly recognizes that FREECHIRO does
not warrant that the Software will meet all of CLIENT’s requirements, that the
use of the Software will be uninterrupted or error-free, that patches, updates,
or workarounds will be provided, or that errors will be corrected in Software
updates, according to this schedule, or in every case. FREECHIRO shall use
commercially reasonable efforts to ensure that the Solution services are
available to CLIENT at all times (excluding during scheduled & emergency
maintenance downtime). CLIENT agrees that access to the Internet cannot be
guaranteed and is outside the direct control of FREECHIRO and that CLIENT’s
inability to access the Internet, though no fault of FREECHIRO, shall in no
event relieve CLIENT of its payment obligations hereunder. CLIENT agrees that
its sole remedy with respect to any claims in connection with CLIENT’s or its
Authorized Users’ use of the Solution, including use of the Hardware and
Software, shall be with FREECHIRO and not its licensors. CLIENT further agrees
that unless expressly agreed in writing, there are no intended third party
beneficiaries to this Agreement.
(c) Clinical and
Non-Clinical Contents: Clinical and Non Clinical information contained
on FREECHIRO’s web-based solutions and website are general in nature and MUST NOT
BE substituted for, or be used instead of, the independent judgment of a
licensed health care professional and is ONLY designed to support, not replace,
the relationship that exists between a patient and his/her health care
practitioner, and any and all information does not constitute the practice of
medicine or any other health care profession. Nothing in the FREECHIRO’s web
based solutions and website is intended as a recommendation or endorsement of
any specific tests, drugs, products, procedures, health care providers,
opinions, or other information that may be mentioned therein. Any reliance on
any information appearing on FREECHIRO’s web-based solutions and website or
provided by FREECHIRO’s personnel, others appearing on the site at the
invitation of the “Website,” and/or other visitors to the site or any
third-party link from the site is solely at CLIENT’s own risk.
(d) Intellectual
Property:
FREECHIRO
will indemnify and hold END-USER harmless from and against any claim by third
parties pertaining to the infringement of U.S. copyrights, trademarks or
patents arising out of END-USER’s use of any of the FREECHIRO’s Products as
authorized hereunder, provided that the Products have not been altered, revised
or modified by END-USER in a manner that causes the alleged infringement, and
further provided that:
(i)
END-USER
promptly notifies FREECHIRO in writing of such claim;
(ii)
FREECHIRO
will have sole control of the defense of any action on such claim and of all
negotiations for its settlement or compromise;
(iii)
END-USER
agrees to cooperate with FREECHIRO in every reasonable way to facilitate the
settlement or defense of such claim; and
(iv)
should
such FREECHIRO’s Products become or, in FREECHIRO’s opinion, be likely to
become, the subject of an infringement claim, END-USER will permit FREECHIRO,
at FREECHIRO’s expense, to:
1.
procure
for END-USER the right to continue using such FREECHIRO’s Products, or
2.
replace
or modify the same to become functionally equivalent yet non-infringing, or
3.
upon
the failure of (1) and (2) above, terminate, without penalty, END-USER’s use of
the affected FREECHIRO’s Products, in which event FREECHIRO will refund to END-USER
on a pro-rata basis any prepaid amounts related thereto.
(e) Data Conversion: AS
AN OPTIONAL SERVICE, FREECHIRO PROVIDE DATA EXTRACTION SERVICE TO CONVERT
DATA FROM END-USER LEGACY SYSTEM INTO FREECHIRO. DATA EXTRACTION FROM OTHER
SYSTEM OFTEN TIMES IS VERY DIFFUCLT AND IS ERROR PRONE. FREECHIRO AGREES TO
MAKE BUSINESS LIKE ATTEMPT TO EXTRACT AND CONVERT THE DATA INTO FREECHIRO. FREECHIRO
DOES NOT MAKE ANY OTHER WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED,
STATUTORY OR OTHERWISE WITH RESPECT TO THE COMPLETENESS AND ACCURACY OF THIS
DATA EXTRACTION AND CONVERSION. FREECHIRO EXPRESSLY DISCLAIMS ALL IMPLIED
WARRANTIES OF NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE. IN NO EVENT FREECHIRO BE LIABLE FOR ANY SPECIAL, INCIDENTAL,
CONSEQUENTIAL, INDIRECT OR PUNITIVE DAMAGES OF ANY KIND, INCLUDING LOSS OF
PROFITS, LOST BUSINESS AND LOSS OF DATA OR COMINGLING OR CORRUPTION OF DATA OR
LOSS OR GOODWILL ARISING OUT OF OR RELATED TO THIS DATA EXTRACTION CONVERSION.
CLIENT AGREES TO PERFORM RECONCILATION OF THE DATA
CONVERSION FOR ACCURACY AND COMPLETENESS AND FREECHIRO AGREES TO CORRECT ANY
CONVERSION RELATED ISSUES REPORTED WITHIN 30 DAYS OF THE CONVERSION.
(f) Other Disclaimers: CLIENT understands
& CLIENT expressly recognizes that:
(i)
Electronic
claims, Electronic Remittance Advice and Eligibility Verification are processed
by third parties- Emdeon or other Clearing houses; FREECHIRO may represent
CLIENT with such third parties as part of the Electronic Claim services. FREECHIRO
relies on these third parties for applicable compliance requirements, accuracy
and completeness of the services provided by these third parties.
(ii)
FREECHIRO
provides drug database, interaction and formularies and bidirectional
connectivity to pharmacies through partnership with NewCrop LLC. NewCrop LLC
requires CLIENT to accept online agreement for their portion of the service in
accordance with the Newcrop Subscription Agreement. The usage of NewCrop service
is subject to CLIENT acceptance of Newcrop eRx Subscription Agreement.
(iii)
FREECHIRO
encourages CLIENT to configure email account to download emails &
electronic fax onto a secure machine and delete it from the email server.
FREECHIRO discourages use of FREE email services such as yahoo, google, msn or
hotmail or any other email services that scans through email contents for
targeted marketing purposes which could potentially expose patient's PHI,
private and confidential information.
(iv)
As
part of providing services to the CLIENT, FREECHIRO may be required to login to
the CLIENT’s account for the sole purpose of CLIENT service. FREECHIRO as set
forth in Section 18 uses reasonable efforts to ensure patient privacy and
confidentiality.
(v)
The
optional electronic fax service & email services and other services are provided
by third party service providers.
(vi)
FREECHIRO
partners with reputed class data centers to host and places reliance on their
internal controls for the security of data communication and data storage.
Exclusive
Remedies:
For any breach of the warranties contained in Section 12, Client's exclusive
remedy, and FREECHIRO entire liability, shall be the correction of the cause of
the breach of such warranty. Any error not reported to PRACTICSUITE by Client
within 30 days of its discovery will be deemed waived and accepted by the
Client.
11.
Limitation
of Liability. IN NO EVENT WILL FREECHIRO
OR ITS LICENSORS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT
OR PUNITIVE DAMAGES OF ANY KIND, INCLUDING LOSS OF PROFITS, LOST BUSINESS AND
LOSS OF DATA OR COMINGLING OR CORRUPTION OF DATA OR LOSS OF GOODWILL ARISING
OUT OF OR RELATED TO THIS AGREEMENT, THE USE OF THE Solution, or ACCOMPANYING MATERIALS AND/OR SERVICES, ACCESS
TO OR FAILURE TO ACCESS THE INTERNET OR OTHER INTERRUPTIONS OR OTHER PROGRAM
RELATED ANAMOLY, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY WHETHER IN
ACTION, IN CONTRACT OR TORT. THIS LIMITATION WILL APPLY EVEN IF FREECHIRO OR
ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. FURTHER, IN
NO EVENT WILL FREECHIRO’S OR ITS LICENSORS’ LIABILITY ARISING OUT OF OR RELATED
TO THIS AGREEMENT EXCEED THE SUM OF FEES PAID BY THE CLIENT FOR THE Solution GIVING RISE TO THE LIABILITY
DURING THE 3-MONTH PERIOD IMMEDIATELY PRIOR TO THE DATE THE CAUSE OF ACTION
AROSE. UNDER THE PRICING AND OTHER TERMS AND CONDITIONS, THE PARTIES AGREE
THAT THIS LIMITATION OF LIABILITY SPECIFIED HEREIN SECTION 13 REPRESENTS A
REASONABLE ALLOCATION OF RISK.
12.
Limitation
of Liability of Interface Connectivity with Third Parties. Notwithstanding any
other provisions of this Agreement, FREECHIRO has no liability under this
Agreement including the Business Associate Agreement for any disclosure of
Protected Health Information ("PHI") made by means of access through FREECHIRO
interfaces by or on behalf of the CLIENT or by means of access by any third
party to the extend such third party obtained access to the interface as a
result of intentional disclosure by the CLIENT. All interface requests made by
the CLIENT or by a third party on behalf of the CLIENT shall be considered
intentional disclosure.
13.
Limitation
of Liability on Online Portal and Patient Messaging: FREECHIRO provides
an online secured online portal module that provides patient messaging. All
patient messages within the portal are HIPAA compliant. Notwithstanding any
other provisions of this Agreement, FREECHIRO has no liability under this
Agreement including the Business Associate Agreement for any disclosure of
Protected Health Information ("PHI") made by means of access or transmission
of PHI information patient's email address and phone.
14.
Force
Majuro.
Either party shall not be liable for, and is excused from, any failure to
perform or delay in the performance of its obligations under this Agreement due
to causes beyond its control, including without limitation, interruptions of
power or telecommunications services, failure or its suppliers or
subcontractors, acts of nature, governmental actions, fire, flood, natural
& other disaster or labor dispute.
15.
Indemnity. CLIENT shall
indemnify, defend and hold FREECHIRO, its officers, directors, employees, and
licensees harmless from and against any and all liability, damage, loss, or
expense, including reasonable attorneys’ fees arising from any third party
claim, demand, action or proceeding based upon CLIENT’s or an Authorized User’s
use of the Solution in a manner not expressly authorized by this Agreement or
in a manner contrary to applicable laws, or incurred in the settlement or
avoidance of any such claim; provided, however, that FREECHIRO shall give
prompt written notice to CLIENT of the assertion of any such claims and
provided further that CLIENT shall have the right to select counsel and control
the defense thereof, subject to the right of FREECHIRO to participate therein.
16.
COMPLIANCE
WITH APPLICABLE LAW. “CLIENT” agrees to comply with all such applicable
international, federal, state and local laws, and to indemnify and hold FREECHIRO
and its officers, directors, shareholders, supervisors, employees, affiliates,
agents, and attorneys: including, without limitation, all persons acting by,
through, under or in concert with any of them, harmless from any and all
claims, losses, liabilities, damages, fines, penalties, costs and expenses
(including attorneys’ fees) arising from or relating to any acts or omissions
of “CLIENT” which breach such laws.
FREECHIRO agrees to comply with all such applicable
international, federal, state and local laws, and to indemnify and hold Client
and its officers, directors, shareholders, supervisors, employees, affiliates,
agents, and attorneys: including, without limitation, all persons acting by,
through, under or in concert with any of them, harmless from any and all
claims, losses, liabilities, damages, fines, penalties, costs and expenses
(including attorneys’ fees) arising from or relating to any acts or omissions
of FREECHIRO which breach such laws.
17.
COMPLIANCE
WITH APPLICABLE PRIVACY AND SECURITY RULES. FREECHIRO (“FREECHIRO”) uses reasonable efforts to
enable its technology & SERVICES to meet all applicable privacy and
security HIPAA AND HITECh ACT REQUIREMENTS. accordingLY, FREECHIRO WILL ENTER
INTO a business associate agreemenT AS A SUPPLMENT TO THIS AGREEMENT.
18.
General. FREECHIRO may
issue a press release announcing the relationship contemplated by this
Agreement. FREECHIRO may include quotes from CLIENT in FREECHIRO press
releases upon CLIENT’s prior approval of such quotes, such approval not to be
unreasonably withheld or delayed. Further, FREECHIRO may use CLIENT’s name and
logo in press releases, marketing materials, financial reports and prospectuses
indicating that CLIENT is a CLIENT of FREECHIRO. The terms, provisions or
conditions of any purchase order or other business form or written
authorization used by CLIENT will have no effect on the rights, duties or
obligations of the parties under, or otherwise modify, this Agreement,
regardless of any failure of FREECHIRO to object to those terms, provisions or
conditions.
19.
Waiver. The waiver of a
breach of any term hereof shall in no way be construed as a waiver of any other
term or breach hereof. No failure of either party to pursue any remedy
resulting from a breach in this agreement by the other party shall be construed
as a waiver of that breach, nor as a waiver of any subsequent or other breach
unless such waiver is signed and in writing.
20.
Severability:
If
any provision of this Agreement shall be held by a court of competent
jurisdiction to be unenforceable or invalid, the remaining provisions of this
Agreement shall remain in full force and effect. This Agreement shall inure to
the benefit of and be binding upon each party’s successors and assigns. Both
parties agree to notify the other party of any assignment or delegation of this
Agreement. Any attempted assignment in violation of this Section 20 shall
be null and void.
21.
Governing
Laws.
The Agreement, and all matters arising out of or relating to the Agreement shall
be governed by the laws of the state of California, without giving effect to
the principles regarding conflicts of laws.
22.
Dispute
Resolution.
It is the intention of all parties that no dispute under this Agreement or with
respect to relationship between parties will be the subject of any court
action or litigation in the local, state, or federal judicial system. Any
controversy, claim or dispute arising out of or relating to the performance,
construction, interpretation or enforcement of this Agreement, including
disputes as to the scope of this section shall, if not resolved through good
faith negotiations between the parties will be subject to mediation and
arbitration.
The parties recognize
that the problem resolution processes of mediation and arbitration are
appropriate and preferable to resolve issues between the parties. If any party
hereto wishes to resolve an issue under or relating to this Agreement, then
such party must give notice of a request for mediation to the other parties,
which notice shall set forth the names of not less than three (3) mediators
from the panel of the American Arbitration Association or other mutually agreed
upon alternative dispute resolution service. The place of such mediation shall
be in the Alameda County, California or in the county of the primary business
address of FREECHIRO. The party receiving such notice shall agree upon one or
more such mediators with ten (10) days of receipt of such notice and a
mediation will be scheduled as soon as feasible between the parties and their
respective advisors, and the parties and their advisors will cooperate fully
with respect to sharing of information and attendance at meetings in order to
seek resolution. If resolution of the matters between the parties cannot be
resolved in mediation within twenty (20) days of the selection of a mediator by
the party receiving such notice, then the matter shall be presented to formal
arbitration pursuant to the rules utilized by the alternative dispute
resolution service selected by an arbitrator from such service’s panel agreed
upon by the parties or, if the parties are unable to agree upon an arbitrator
within ten (10) days of the completion of mediation, by a panel of three (3)
arbitrators from such panel selected by such service’s administrator.
Arbitration shall take place in the venue in which the mediation shall have
occurred as soon as possible and the decision of the arbitrator panel shall be
binding upon the parties for all purposes. Each party shall bear for all their
expenses in connection with the arbitration and mediation. It is the intention
of the parties that this Agreement shall be construed and interpreted in a fair
and equitable manner based upon the facts and circumstances of the parties
taking into account the present intention of the parties to have a fair and
equitable agreement under the terms and conditions set forth in this Agreement.
23.
No
Construction Against Drafter. This Agreement is not to be construed against the
drafting party.
24.
Notices. Any notice required
or permitted to be given shall be delivered by hand, email, by overnight
courier, by fax with confirming letter mailed under the conditions
described herein, or by registered or certified mail, postage prepaid, return
receipt requested, to the address of the other party first set forth above.
Notice so given shall be deemed effective when received, or if not received by
reason of fault of addressee, when delivered.
25.
Nothing
contained herein shall constitute a partnership between or joint venture by
CLIENT and FREECHIRO, or constitute CLIENT or FREECHIRO the agent of the
other.
26.
The
parties agree that this Agreement constitutes the complete and exclusive
understanding and agreement of the parties relating to the subject matter
hereof and supersedes all prior understandings, proposals, agreements,
negotiations, and discussions between the parties, whether written or oral.
By
clicking on "Accept" button CLIENT acknowledges its acceptance and agreement
with the terms contained in this Agreement, including all exhibits attached
hereto which exhibits are made a part hereof and incorporated by reference.
Exhibit A
Business Associate
Agreement
Whereas,
Client referred herein as "Covered Entity" and ,
INC (dba FREECHIRO.com), together
with their designees, employees, associates, affiliates, successors, and
assigns "Business
Associate",
intend to protect the privacy and provide for the security of certain Protected
Health Information (PHI) to which Business Associate may have access in order
to provide goods or services to or on behalf of Covered Entity under the
"Underlying Agreement".
WHEREAS,
both
parties are subject to Health Insurance Portability and Accountability Act of
1996, Public Law 104-191 (HIPAA), the HIPAA Privacy rule (Privacy rule), 45 CFR
Parts 160 and 164, and the HIPAA Security Rule (Security Rule), 45 CFR Parts
160, 162 and 164 issued by the U.S. Department of Health and Human Services, as
either have been amended by Subtitle D of the Health Information Technology for
Economic and Clinical Health Act (the “HITECH Act”), as Title XIII of Division
A and Title IV of Division B of the American Recovery and Reinvestment Act of
2009 (Pub. L. 111–5).
WHEREAS, both parties desire
to comply with HIPAA and HITECH Act requirements relating to the obligations of
each in connection with the privacy and security of individually identifiable
health information that is subject to protection under HIPAA; and desire to
comply with HIPAA standards for the privacy of PHI of patients of Covered
Entity.
WHEREAS, Business Associate
may receive PHI from Covered Entity, or may create or obtain PHI from other
parties for use on behalf of Covered Entity, that is in electronic form, which
PHI must be handled in accordance with this Agreement and the standards established
by HIPAA and Security Rule upon the effective date of the Underlying Agreement.
WHEREAS, Business Associate
may receive PHI from Covered Entity, or may create or obtain PHI from other
parties for use on behalf of Covered Entity, which PHI can be used or disclosed
only in accordance with this Agreement and the standards established by HIPAA
and the Privacy rule.
NOW,
THEREFORE, Covered
Entity and Business Associate agree as follows:
1.
Definitions.
A. "Underlying
Agreement" shall include Channel Partner Agreement or Value Added Reseller
Agreement and/or End-User Agreement and/or Non-Disclosure Agreement entered
between Business Associate and Covered Entity and/or clients of Covered Entity.
B. "Business
Associate" shall have the meaning given to such term under the Privacy and
Security Rules, including but not limited to, 45 CFR §160.103.
C. "Covered
Entity" shall have the meaning given to such term under the Privacy and
Security Rules, including, but not limited to, 45 CFR §160.103.
D. "HIPAA"
shall mean the Health Insurance Portability and Accountability Act of 1996,
Public Law 104-191.
E. "Privacy
rule" shall mean the Standards for Privacy of Individually Identifiable
Health Information at 45 CFR Parts 160 and 164, Subparts A and E, as amended by
the HITECH Act and as may otherwise be amended from time to time.
F. “Individual” shall
have the same meaning as the term “individual” in 45 CFR §164.501 and shall
include a person who qualifies as a personal representative in accordance with
45 CFR §164.502(g).
G. "Protected
Health Information" or "PHI" means any information, transmitted
or recorded in any form or medium; (i) that relates to the past, present or
future physical or mental condition of an individual; the provision of health
care to an individual; or the past, present or future for the provision of
health care to an individual, and (ii) that identifies the individual or with
respect to which there is a reasonable basis to believe the information can be
used to identify the individual, and shall have the meaning given to such term
under HIPAA and the HIPAA Regulations at 45 CFR Parts 160, 162 and 164,
including, but not limited to 45 CFR §164.501.
H. "Security
Rule" shall mean the Security Standards at 45 CFR Parts 160, 162 and 164.
I. Terms used, but not
otherwise defined, in this Agreement shall have the same meaning as those terms
in 45 CFR Parts 160, 162 and 164.
J. “Required By Law”
shall have the same meaning as the term “required by law” in 45 CFR §164.501.
K. “Unsecured Protected
Health Information” or “Unsecured PHI” shall mean PHI that is not secured
through the use of a technology or methodology that renders protected health
information unusable, unreadable, or indecipherable to unauthorized
individuals, as specified in guidance issued by the Secretary.
L. “Breach” shall have
the same meaning as the term “breach” in §13400 of the HITECH Act and shall
include the unauthorized acquisition, access, use, or disclosure of PHI that
compromises the security or privacy of such information.
2. Stated Purposes
For Which Business Associate May Use or Disclose PHI. The Parties hereby
agree that Business Associate shall be permitted to use and/or disclose PHI
provided by or obtained on behalf of Covered Entity for the purpose of
installation, setup, implementation, support, electronic claims management,
follow-up with Insurance companies and patients and day-to-day operational
purpose for data maintenance and support.
Stated
Purposes For Which Business Associate May Use Or Disclose PHI. Except as otherwise
limited in this Agreement, Business Associate shall be permitted to use or
disclose PHI provided by or obtained on behalf of Covered Entity to perform
those functions, activities, or services for, or on behalf of, Covered Entity
that are specified in the underlying Agreement, provided that such use or
disclosure would not violate the Privacy rule if done by Covered Entity or the
minimum necessary policies and procedures of the Covered Entity.
3.
Additional Purposes For Which Business Associate May Use Or Disclose
Information.
In addition to the Stated Purposes, Business Associate may use or disclose PHI
provided by, created or obtained on behalf of Covered Entity for the following
additional purposes(s) (optional section):
A. Use of Information
For Management, Administration And Legal Responsibilities. Business Associate
is permitted to use PHI if necessary for the proper management and
administration of Business Associate or to carry out legal responsibilities of
the Business Associate, except as otherwise limited in this Agreement.
B. Disclosure of
Information For Management, Administration And Legal Responsibilities. Business Associate
is permitted to disclose PHI provided by, or created or obtained on behalf of
Covered Entity for the proper management and administration of Business
Associate or to carry out legal responsibilities of Business Associate, except
as otherwise limited in this Agreement, provided:
1. The disclosure is
required by law: or
2. The Business
Associate obtains reasonable assurances in writing from any third party to whom
the information is disclosed that it will be held confidentially and used or
further disclosed only as required by law or for the purposes for which it was
disclosed to the third party, the third party will use appropriate safeguards
to prevent other use or disclosure of the information, and the third party
agrees to immediately notify the Business Associate of any instance of which it
is aware in which the confidentiality of the information has been breached.
C. Data Aggregation Services. Business Associate
may also be permitted to use or disclose PHI to provide data aggregation
services, as that term is defined by 45 CFR §164.501, if specific authorization
is received from the Covered Entity.
4.
BUSINESS ASSOCIATE OBLIGATIONS:
A. Limits on Use and
Further Disclosure Established By This Agreement Or Required By Law. Business Associate
hereby agrees that the PHI provided by, or created or obtained on behalf of
Covered Entity shall not be further used or disclosed other than as permitted
or required by this Agreement or as required by law.
B. Appropriate
Safeguards.
Beginning as soon as practicable but in no event later than the effective date
of the Security Rule, Business Associate shall establish and maintain
appropriate safeguards to prevent any use or disclosure of PHI other than as
provided for by this Agreement. Appropriate safeguards shall include
implementing administrative, physical, and technical safeguards that reasonably
and appropriately protect the confidentiality, integrity, and availability of
the electronic PHI that is created, received, maintained, or transmitted on
behalf of the Covered Entity.
C. Reports of improper
Use or Disclosure.
Business Associate hereby agrees that it shall report to the Covered Entity
within two (2) days of discovery any use or disclosure of PHI not provided for
or allowed by this Agreement.
D. Reports of Security
Incidents.
Beginning as soon as practicable but in no event later than the effective date
of the Security Rule, Business Associate shall report to the Covered Entity
within two (2) days of discovery any security incident of which it becomes
aware.
E. Subcontractors and
Agents.
Business Associate hereby agrees that any time PHI is provided or made
available to any subcontractors or agents, Business Associate shall provide
only the minimum necessary PHI for the purpose of the covered transaction and
shall first enter into a subcontract or contract with the subcontractor or
agent that contains the same terms, conditions and restrictions on the use and
disclosure of PHI as contained in this Agreement.
F. Right of Access to
PHI.
Business Associate hereby agrees to allow an individual who is the subject of
PHI maintained in a designated record set, to have access to and copy that
individual’s PHI within 10 business days of receiving a written request from
the Covered Entity. Business Associate shall provide PHI in the format
requested, unless it cannot readily be produced in such format, in which case
it shall be provided in standard hard copy. If any individual requests from
Business Associate or its agents or subcontractors access to PHI, Business
Associate shall notify Covered Entity of same within 5 business days. Business
Associate shall further conform with and meet all of the requirements of 45 CFR
§164.524.
G. Amendment and
Incorporation of Amendments. Within 10 business days of receiving a request from
Covered Entity for an amendment of PHI maintained in a designated record set,
Business Associate shall make the PHI available and incorporate the amendment
to enable Covered Entity to comply with 45 CFR §164.526. If any individual
requests an amendment from Business Associate or its agents or subcontractors,
Business Associate shall notify Covered Entity of same within 10 business days.
H. Provide Accounting
of Disclosures.
Business Associate agrees to maintain a record of all disclosures of PHI in
accordance with 45 CFR §164.528. Such records shall include, for each
disclosure, the date of the disclosure, the name and address of the recipient
of the PHI, a description of the PHI disclosed, the name of the individual who
is the subject of the PHI disclosed, the purpose of the disclosure, and shall
include disclosures made on or after the date which is 6 years prior to the
request or April 14, 2003, whichever is later. Business Associate shall make
such record available to the individual or the Covered Entity within 10
business days of a request for an accounting of disclosures.
I. Access to Books and
Records.
Business Associate hereby agrees to make its internal practices, books, and
records relating to the use or disclosure of PHI received from, or created or
received by Business Associate on behalf of the Covered Entity, available to
the Secretary of Health and Human Services or designee for purposes of determining
compliance with the HIPAA Privacy Regulations.
J. Return or
Destruction of PHI.
At termination of this Agreement, Business Associate hereby agrees to return or
destroy all PHI provided by or obtained on behalf of Covered Entity. Business
Associate agrees not to retain any copies of the PHI after termination of this
Agreement. If return or destruction of the PHI is not feasible due to other
Legal or other requirements or reasons, Business Associate agrees to extend the
protections of this Agreement to limit any further use or disclosure until such
time as the PHI may be returned or destroyed.
K. Maintenance of PHI. Notwithstanding
Section 4(j) of this Agreement, Business Associate and its subcontractors or
agents shall retain all PHI throughout the term of the Agreement and shall
continue to maintain the information required under §4(h) of this Agreement for
a period of six (6) years after termination of the Agreement, unless Covered
Entity and Business Associate agree otherwise.
L. Mitigation
Procedures.
Business Associate agrees to establish and to provide to Covered Entity upon
request, procedures for mitigating, to the maximum extent practicable, any
harmful effect from the use or disclosure of PHI in a manner contrary to this
Agreement or the Privacy Rule. 45 CFR §164.530(f). Business Associate further
agrees to mitigate any harmful effect that is known to Business Associate of a
use or disclosure of PHI by Business Associate in violation of this Agreement
or the Privacy rule.
M. Sanction Procedures.
Business
Associate agrees that it shall develop and implement a system of sanctions for
any employee, subcontractor or agent who violates this Agreement or the Privacy
rule.
N. Termination by
Covered Entity.
Business Associate authorizes termination of this Agreement by the Covered
Entity if the Covered Entity determines, in its sole discretion that the
Business Associate has violated a material term of this Agreement.
O. Failure to Perform
Obligations. In
the event Business Associate fails to perform its obligations under this
Agreement, Covered Entity may immediately discontinue providing PHI to Business
Associate. Covered Entity may also, at its option, require Business Associate
to submit to a plan of compliance, including monitoring by Covered Entity and reporting
by Business Associate, as Covered Entity in its sole discretion determines to
be necessary to maintain compliance with this Agreement and applicable law.
P. Permitted Disclosure. Except as
otherwise limited in this Agreement, Business Associate may disclose PHI for
the proper management and administration of Business Associate, provided that
disclosures are Required By Law, or Business Associate obtains reasonable
assurances from the person to whom the information is disclosed that it will
remain confidential and used or further disclosed only as Required By Law or
for the purpose for which it was disclosed to the person, and the person
notifies Business Associate of any instances of which it is aware in which the
confidentiality of the information has been breached. Business Associate may
use PHI to report violations of law to appropriate Federal and State
authorities, consistent with 42 CFR §164.502(j)(1).
5.
OBLIGATIONS OF COVERED ENTITY:
A. Provision of Notice
of Privacy Practices.
Covered Entity shall provide Business Associate with the notice of privacy
practices that the Covered Entity produces in accordance with 45 CFR §164.520,
as well as changes to such notice.
B. Permissions. Covered Entity
shall provide Business Associate with any changes in, or revocation of,
permission by individual to use or disclose PHI of which Covered Entity is
aware, if such changes affect Business Associate’s permitted or required uses
and disclosures.
C. Restrictions. Covered Entity
shall notify Business Associate of any restriction to the use or disclosure of
PHI that the Covered Entity has agreed to in accordance with 45 CFR §164.522,
to the extent that such restriction may affect Business Associate’s use or
disclosure of PHI.
D. Safeguards for
Protection of PHI.
Covered
Entity shall: (a) implement administrative, physical, and technical safeguards
that reasonably and appropriately protect the confidentiality, integrity,
privacy and security of PHI that it creates, receives, maintains, or transmits
to Business Associate; (b) protect and safeguard from any oral or written
disclosure all PHI, in accordance with applicable statutes and regulations,
including, but not limited to, HIPAA and the HITECH Act; (c) implement and
maintain appropriate policies and procedures to protect and safeguard PHI; (d)
use appropriate safeguards to prevent use or disclosure of PHI other than as
permitted or Required by Law; and (e) otherwise comply with the standards and
requirements of HIPAA and the HITECH Act. Covered Entity shall notify Business
Associate of any material change to any aspect of its security safeguards.
6.
TERM AND TERMINATION:
A. Term and Termination. This Agreement
shall become effective on the Effective Date and remain in effect for the
entire term of the Underlying Agreement, or until otherwise terminated as set
forth herein.
B. Termination for
Cause. Upon the occurrence of a material breach of this Agreement by one of
the parties (the “Breaching Party”), the other party shall: (a) provide an
opportunity for the Breaching Party to cure the breach or end the violation
and, if the Breaching Party does not cure the breach or end the violation
within the time specified, terminate this Agreement; (b) immediately terminate
this Agreement if the Breaching Party has breached a material term of this
Agreement and cure is not possible; or (c) if neither termination nor cure is
feasible, report the violation to the Secretary.
C. No Feasible
Return/Destruction of PHI. Due to the nature of the services provided by
Business Associate to or on behalf of COVERED ENTITY and/or COVERED ENTITY’s
Client pursuant to the Underlying Agreement, Business Associate may be required
to retain copies of information used by Business Associate on behalf of COVERED
ENTITY and/or COVERED ENTITY’s Clients. Consequently, if the return or
destruction of PHI held or received by Business Associate is not feasible;
Business Associate shall extend the protections of this Agreement to such PHI
and limit further uses and disclosures of such PHI. Business Associate shall
remain bound by the provisions of this Agreement, even after termination of
this Agreement and/or the Underlying Agreement, until such time as all PHI has
been returned or otherwise destroyed as provided in this section.
D. Effect of Termination.
All rights, duties and obligations established in this Agreement shall survive
termination of this Agreement.
7.
INDEMNIFICATION:
A. Indemnification. Each party shall
indemnify, hold harmless and defend the other party to this Agreement from and
against any and all claims, losses, liabilities, costs and other expenses
incurred as a result of, or arising directly or indirectly out of or in
connection with: (i) any misrepresentation, breach of warranty or
non-fulfillment of any undertaking on the part of the breaching party under
this Agreement; and (ii) any claims, demands, awards, judgments, actions and
proceedings made by any person or organization arising out of or in any way
connected with the breaching party’s performance or non-performance, as applicable,
of its obligations under this Agreement.
8.
OTHER PROVISIONS:
A. Construction. This Agreement
shall be construed as broadly as necessary to implement and comply with HIPAA
and the HIPAA regulations. The parties agree that any ambiguity in this Agreement
shall be resolved in favor of a meaning that complies and is consistent with
HIPAA and the HIPAA regulations.
B. Notice. All notices and
other communications required or permitted pursuant to this Agreement shall be
in writing, addressed to the party at the address set forth in the Underlying
Agreement, or to such other address as either party may designate from time to
time. All notices and other communications shall be mailed by registered or
certified mail, return receipt requested, postage pre‑paid, or
transmitted by hand delivery or telegram. All notices shall be effective as of
the date of delivery of personal notice or on the date of receipt, whichever is
applicable.
C. Amendment. This Agreement
may only be amended through a writing signed by the parties and, thus, no oral
modification hereof shall be permitted. The parties agree to take such action
as is necessary to amend this Agreement from time to time to ensure consistency
with amendments to and changes in applicable federal and state laws and
regulations, including, but not limited to, HIPAA. This Agreement constitutes
the entire agreement between the parties. No oral statement or prior written
material not specifically mentioned herein shall be of any force or effect and
no change in or addition to this Agreement shall be recognized unless evidenced
by a writing executed by FREECHIRO and Business Associate, such amendment(s) to
become effective on the date stipulated therein.
D. Assignment. BUSINESS
ASSOCIATE has entered into this Agreement in specific reliance on the expertise
and qualifications of FREECHIRO. Consequently, Business Associate’s interest
under this Agreement is entitled to terminate this Agreement if the Business
Associate is not satisfied with the transferred or assigned or assumed entity.
E. Governing Law and
Venue.
This Agreement has been executed and delivered in, and shall be interpreted,
construed, and enforced pursuant to and in accordance with the laws of the
State of California, without giving effect to the application of conflicts of
laws. To the fullest extent permitted by law, the parties hereto hereby (i)
submit to the jurisdiction of the California and United States courts of the
California judicial circuit and the federal district, respectively, wherein
lies Alameda County, California for the purposes of any legal action or
proceeding brought under or involving this Agreement; (ii) agree that exclusive
venue for any such action or proceeding shall be in Alameda County, California
or the County of FREECHIRO primary business address; and (iii) waive any claim
that the same is an inconvenient forum.
F. Headings. Headings
contained in this Agreement are for reference purposes only and shall not
affect in any way the meaning or interpretation of this Agreement.
G. Binding Effect. This Agreement
shall be binding upon, and shall inure to the benefit of, the parties hereto
and their respective permitted successors and assigns.
H. Counterparts. This Agreement
may be executed in multiple counterparts, each of which shall constitute an
original and all of which shall constitute but one Agreement.
I. Gender and Number. The use of the
masculine, feminine or neuter genders, and the use of the singular and plural,
shall not be given an effect of any exclusion or limitation herein. The use of
the word “person” or “party” shall mean and include any individual, trust,
corporation, partnership or other entity.
J. Priority of
Agreement.
If
any portion of this Agreement is inconsistent with the terms of the Underlying
Agreement, the terms of this Agreement shall prevail. Except as set forth
above, the remaining provisions of the Underlying Agreement are to be ratified
in their entirety.
K. No Construction
Against Drafter.
This Agreement is not to be construed against the drafting party.
L. Authority to
Contract.
Each party represents and warrants that said party is authorized to enter into
this Agreement and to be bound by the terms of it.