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This Platform Subscription Agreement (“Agreement”) is entered into and effective as of the submission date of the digital signature in the account signup (“Effective Date”) by and between you (“Customer”) and AZOVA, Inc. (“AZOVA”). Customer’s use of the Services is also subject to AZOVA’s Customer Terms of Use available here, which may be amended at any time in AZOVA’s sole discretion. Your continued use of the Services will represent your consent to any revisions to the Terms of Use. In the event of a conflict between this Agreement and the Terms of Use, the terms of this Agreement shall prevail.
1. Services
AZOVA provides a cloud based platform to enable healthcare professionals to connect with consumers seeking telehealth services (together with any additional services that Customer may order, the “Services”). AZOVA does not provide consultation, advice, diagnostic or treatment recommendations. AZOVA is solely a platform by which consumers can connect with Customer. During the Term and subject to Customer’s payment of all relevant fees, AZOVA grants Customer a non-exclusive, non-transferable revocable right to access and use the Services pursuant to and in accordance with the provisions of this Agreement. Customer may not transfer or offer access to the Services for any affiliates, subsidiaries, parent corporations, or affiliate entities. If Customer is required to install and download software from AZOVA in connection with the Services, AZOVA provides Customer with a limited, personal, non-exclusive, non-transferable, non-sublicensable, revocable license to use the software in accordance with the provisions of this Agreement. Services ordered by customer are set forth in the applicable order document, substantially the form of Exhibit A (Services) ("Order"), which shall be amended only in writing upon addition or termination of any particular service..
2. Term
The term of this Agreement will begin on the Effective Date (and include the Trial Period) and will continue thereafter unless either party gives notice to the other of its intent terminate this Agreement in accordance with Section 22.1 (Termination) (“Term”).
3. Restrictions
Customer and its employees and contractors, and the consumers receiving consultations (collectively, the “Users”) may only use the Services for the purpose of providing and receiving telehealth consultations by Customer. Customer is responsible for ensuring its Users comply with all relevant terms of this Agreement and any failure to comply will constitute a breach by Customer. Except as expressly authorized by this Agreement, Customer will not, and will not allow any User or other third party to, engage in or use the Services: (i) to permit any third party to access or use the Services other than a User, (ii) to decompile, disassemble, reverse engineer, or otherwise attempt to derive the trade secrets embodied in the Services, (iii) to use the Services or any AZOVA confidential information to develop a competing product or service, (iv) to use any Service in violation of any export control laws or regulations administered by the U.S. Commerce Department or any other government agency, (v) to remove any copyright, trademark, proprietary rights, disclaimer, or warning notice included on or embedded in any part of the Service, including any screen displays, etc., or any other products or materials provided by AZOVA hereunder, (vi) to use the Service in a manner that violates privacy rights or that constitutes infringement of the intellectual property or other proprietary rights, (vii) for fraudulent or illegal purposes, and/or (v) to use the Service that otherwise violates AZOVA policies, applicable laws, ordinances or regulations. Under no circumstances will AZOVA be liable or responsible for any use, or any results obtained by the use, of the Services in conjunction with any services, software, or hardware that are not provided by AZOVA. All such use will be at Customer’s sole risk and liability.
4. Customer Branded Solution
Subject to the applicable fees, AZOVA may offer to Customer a Customer branded portal access enabling Users to access the Services via a Customer branded webpage and/or mobile application (“Branded Solution”). The Branded Solution will include such attribution as AZOVA may prescribe in AZOVA’s sole discretion. The attribution will be placed in a location satisfactory to AZOVA in AZOVA’s sole discretion. Customer is responsible for all Customer Content (as defined in this Agreement) placed on the Branded Solution and elsewhere. Customer agrees that it is the information content provider for all Customer Content posted on the Branded Solution, and that pursuant to Section 230 of the Communications Decency Act, AZOVA shall not be treated as the publisher or speaker of any Customer Content. AZOVA does not endorse, approve, or vet any Customer Content placed on the Branded Solution or made available through AZOVA in any way. All Customer Content is Customer’s responsibility, and AZOVA shall not be liable for any reason for anything posted by Customer. To the extent that Customer stores, processes, accesses or transmits payment card “Account Data,” “Cardholder Data,” or “Sensitive Authentication Data” (as defined by the Payment Card Industry Data Security Standard, hereafter “PCI DSS”), Customer represents and warrants that it stores, transmits and processes such data in compliance with PCI DSS requirements as well as any other applicable payment standards, or applicable laws and regulations. Customer further represents and warrants that it shall continue to be fully compliant with all such standards, laws and regulations for all times that it stores, processes, accesses, or transmits payment card “Account Data.” Customer further acknowledges that it is Customer’s ongoing responsibility hereunder for securing Cardholder Data and Sensitive Authentication Data in accordance with the PCI DSS. Should Customer fail to maintain compliant practices in accordance with this section, such failure shall be deemed a material breach of this Agreement.
5. Availability
AZOVA shall undertake commercially reasonably measures to ensure that the Services shall be available for access and use by Customer, except during pre-scheduled maintenance or in accordance with Section 24.3 (Force Majeure). In the event the Services are not available for use, AZOVA shall use commercially reasonable efforts to correct the interruption as promptly as practicable. In the event AZOVA is unable to correct the availability of the Services to Customer’s satisfaction, Customer may terminate this Agreement and receive a prorated refund of any pre-paid, unused recurring fees. Such refund shall constitute Customer’s sole and exclusive remedy and AZOVA’s sole and exclusive liability for failure to make the Services available for use. Customer and AZOVA specifically agree that AZOVA is not liable for any consequential or incidental damages associated with use of the Services, including, but not limited to, damages associated with lost profits or the unavailability of the Services.
6. Connectivity
Customer and Users are solely responsible for all telecommunication or Internet connections required to access the Services, and pay for all telecommunications costs, fees and services required for Customer’s and Users’ access to the Services.
7. No Provision of Advice or Services
As part of the Services, AZOVA provides a platform for Customer to communicate with consumers, potential consumers, patients, and potential patients. AZOVA does not provide any medical advice, legal advice, or representations in any way regarding any legal or medical issues associated with Customer, goods or services offered by the Customer, including, but not limited to, any compliance obligations or steps necessary to comply with any state or federal laws and regulations. Customer should seek legal counsel regarding any legal and compliance issues, and should not rely on any materials or content associated with the Services in determining Customer’s compliance obligations under law. Customer and AZOVA agree that AZOVA is not providing, to Customer or anyone else, medical advice or legal advice.
8. Compliance
Each party agrees to comply with all applicable federal, state and local laws in performing its obligations hereunder, and Customer agrees that Customer is solely responsible for ensuring compliance with all Customer Content and Customer’s business practices (including, but not limited to, any offerings made via the Branded Solution), which include, but are not limited to, the federal and state anti-kickback and self-referral laws and regulations at all times during the term of this Agreement. The parties acknowledge that although AZOVA is obligated to provide the Services as specified in this Agreement, there is no obligation of AZOVA to refer patients to Customer or any affiliate of Customer, and there is no obligation of Customer to refer patients to any person or business entity. Notwithstanding the unanticipated effect of any of the provisions herein, the parties intend to comply with 42 U.S.C. § 1320a-7b(b) (commonly known as the Anti-Kickback Statute), 42 U.S.C. § 1395nn (commonly known as the Stark Law) and any other federal or state law provision governing fraud and abuse or self-referrals, as such provisions may be amended from time to time. This Agreement will be construed in a manner consistent with compliance with such statutes and regulations, and the parties hereto agree to take such actions necessary to construe and administer this Agreement accordingly. The parties hereto represent, covenant and agree that the compensation due to AZOVA under this Agreement and the Order has been determined through good faith and arm’s length bargaining to be commercially reasonable. The sole purpose of the payments to AZOVA hereunder is to pay fair market value for Services actually rendered by AZOVA to Customer hereunder. These Services strictly and solely provide a cloud-based platform to enable healthcare professionals to connect with consumers, and do not involve any provision of any Services by AZOVA to any customer or client of Customer. No amount paid hereunder is intended to be, nor shall be construed as, an inducement or payment for referral of, or recommending referral of, patients by AZOVA (or its employees and agents) to Customer (or its employees or agents) or by Customer (or its employees and agents) to AZOVA (or its employees and agents). In addition, fees charged hereunder do not include any discount, rebate, kickback, or other reduction in charge. This Agreement shall be interpreted and construed at all times in a manner consistent with applicable laws and regulations governing the financial relationships among individuals and entities that provide or arrange for the provision of items or services that are reimbursable by governmental health care programs or other third party payors.
9. No Referrals
The parties acknowledge that none of the benefits granted hereunder, and none of the Services offered or the compensation due to AZOVA pursuant to the Agreement and the Order, are conditioned on any requirement that either party make referrals to, be in a position to make or influence referrals to, or otherwise generate business for the other party. Customer shall be solely responsible for any and all billing, coding and collections associated with the services Customer provides its patients, including the determination of whether or not such services are covered by health plans, governmental agencies, third party payers or other financially-responsible parties. In no event shall AZOVA be responsible for Customer’s billing or billing practices.
10. Business Associate Agreement
The parties agree to the terms and conditions contained in the Business Associate Agreement (“BAA”) set forth in Exhibit B to this Agreement.
11. Proprietary Rights
Customer acknowledges and agrees that (i) the Services are protected by intellectual property rights, as applicable, of AZOVA and its vendors/licensors and that Customer has no right to transfer or reproduce the Services, in whole or in part, or prepare any derivative works with respect to, or disclose confidential information pertaining to, any Services or any part of them, and (ii) that AZOVA owns all right, title, and interest in and to the Services, including any changes or modifications made to the Services whether or not performed subject to an Order, together with all ideas, architecture, algorithms, models, processes, techniques, user interfaces, database design and architecture, and “know-how” embodying the Services. Under no circumstances will Customer be deemed to receive title to any portion of the Services, title to which at all times will vest exclusively in AZOVA. Customer will not use any confidential information disclosed by AZOVA to Customer to contest the validity of any intellectual property rights of AZOVA or its licensors. Any such use of AZOVA’s confidential information and data will constitute a material, non-curable breach of this Agreement.
12. Customer Consent
Customer grants AZOVA a non-exclusive, world-wide, royalty-free license to use the data and other information input by Customer into the Services (the “Customer Content”) for purposes of performing this Agreement, as directed or instructed by Customer and its Users (e.g., in the context of support requests), AZOVA policies, and/or applicable law. Customer will be responsible for obtaining all rights, permissions, and authorizations to with respect to the Customer Content for use as contemplated under this Agreement. Except for the license granted in this Section, nothing contained in this Agreement will be construed as granting AZOVA any right, title, or interest in the Customer Content. Customer shall retain a copy of Customer Content outside the Services. Customer shall comply with all intellectual property, marketing laws, advertising laws, privacy laws, and all other laws and regulations related to the Customer Content and shall comply with all legal duties applicable to Customer. Specifically, Customer shall provide the relevant Users with all information or notices Customer is required by applicable privacy and data protection law to provide and, if necessary, obtain the consent of or provide choices to such Users as required by such laws. AZOVA and Customer shall apply reasonable technical, organizational and administrative security measures to keep Customer Content protected in accordance with industry standards. Customer is solely responsible for the configuration of its Service account and configuration, operation, performance and security of its equipment, networks and other computing resources, including its gateways or other devices and networks used to connect to the Services. This Section states AZOVA’s exclusive obligations with respect to Customer Content.
13. Aggregated Data
Customer grants AZOVA a non-exclusive, perpetual, irrevocable, fully-paid-up, royalty free license to use, copy, distribute, and otherwise exploit statistical and other aggregated data derived from Customer’s use of Services (the “Aggregated Data”) for AZOVA’s business purposes, including the provision of products and services to AZOVA’s customers. Aggregated Data does not include information identifying Customer or any identifiable individual. The Aggregated Data will not be considered Customer’s confidential information.
14. Feedback
Customer may provide suggestions, comments or other feedback (collectively, “Feedback”) to AZOVA with respect to its products and services, including the Services. Feedback is voluntary. AZOVA may use Feedback for any purpose without obligation of any kind. To the extent a license is required under Customer’s intellectual property rights to make use of the Feedback, Customer grants AZOVA an irrevocable, non-exclusive, perpetual, fully-paid-up, royalty-free license to use the Feedback in connection with AZOVA’s business, including the enhancement of the Services.
15. Support and Maintenance
If Customer purchases support and maintenance as part of the Service pursuant to the Order, then AZOVA will provide Customer with reasonable telephone assistance for Customer’s technical support contact with setting up new user accounts, demonstrations, training, and technical support. AZOVA’s telephone support is available Monday through Friday, 9 a.m. to 5 p.m. EST, except for state and federal holidays or any downtimes associated with operational or logistical issues. Additional support may be available in AZOVA’s sole discretion, and may be subject to additional fees and the terms and conditions of the Order.
16. Fees
16.1 Payment of Invoices
Customer will pay AZOVA the fees set forth in the Orders, and all fees must be paid within thirty (30) days of the order date or invoice date where appropriate. Payments not made within that time period will be subject to late charges equal to the lesser of (a) one and one-half percent (1.5%) per month of the overdue amount or (b) the maximum amount permitted under applicable law. On notice of not less than ninety (90) days, AZOVA may, at its discretion, adjust any or all fees by providing notice to Customer in writing.
16.2 Taxes
In addition to any other payments due under this Agreement, Customer agrees to pay, indemnify and hold AZOVA harmless from any sales, use, transfer, privilege, tariffs, excise, and all other taxes and all duties, whether international, national, state, or local, however designated, which are levied or imposed by reason of the performance of the Services under this Agreement; excluding, however, income taxes on profits which may be levied against AZOVA.
16.3 Data Transfer Fee
If, upon termination of this Agreement or closing of Customer’s account, AZOVA will upon request transfer Customer’s stored data to the storage service of Customer’s choice at a data transfer fee of $275.00 per healthcare professional on Customer’s account. Once the account has been closed and the Customer data has been transferred, AZOVA will no longer retain a copy of Customer’s data.
17. Customer Obligations
Customer will perform its obligations in accordance with the requirements of this Agreement in a commercially reasonable manner. Customer’s failure to perform its obligations may adversely affect AZOVA’s ability to meet its performance obligations and the parties agree that if Customer fails to perform its material obligations, AZOVA will promptly notify Customer of the failure and the reasonably anticipated consequences of the failure, and the parties will negotiate in good faith to arrive at an equitable adjustment to the terms of this Agreement to compensate AZOVA for any additional effort and costs directly caused by Customer’s delay or failure to perform. Further, Customer’s failure to perform certain tasks may prevent or disrupt Customer from having access to Services. Customer is responsible for preserving and making adequate backups of its data.
18. Warranties
18.1 Customer Warranty
Customer represents and warrants that (a) it has full power, capacity, and authority to enter into this Agreement and to grant the license set forth in Section 12 (Customer Content); (b) any Customer Content provided by Customer for use in connection with the Services does not and will not infringe the intellectual property, publicity, or privacy rights of any person and is not defamatory, obscene, or in violation of applicable foreign, federal, state and local laws, rules and regulations (including, but not limited to, applicable policies and laws related to spamming, such as CAN-SPAM, privacy, and consumer protection) (collectively, “Applicable Law”); (c) its use of the Services will be in compliance with all Applicable Law; and (d) neither Customer nor any Users shall make any representations with respect to AZOVA, the Services or this Agreement (including, without limitation, that AZOVA is a warrantor or co-seller or provider of any of Customer’s products and/or services).
18.2 AZOVA Warranty
During the Term, AZOVA represents and warrants the Services will substantially comply with the specifications, if any, and as otherwise described in the then current documentation made generally available by AZOVA to its customers regarding the Services. In the event of a breach of the warranty, AZOVA’s sole and exclusive liability and Customer’s sole and exclusive remedy will be to provide restored or replacement service which conforms to this warranty.
18.3 Disclaimer of Warranties
EXCEPT AS PROVIDED IN SECTION 18.2, THE SERVICES ARE PROVIDED “AS IS” AND “AS-AVAILABLE,” WITH ALL FAULTS, AND WITHOUT WARRANTIES OF ANY KIND. AZOVA AND ITS VENDORS AND LICENSORS DISCLAIM ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, QUALITY OF INFORMATION, TITLE, AND NON-INFRINGEMENT. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY AZOVA OR ITS AUTHORIZED REPRESENTATIVES WILL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF AZOVA’S OBLIGATIONS HEREUNDER. THE SERVICES MAY BE USED TO ACCESS AND TRANSFER INFORMATION OVER THE INTERNET. CUSTOMER ACKNOWLEDGES AND AGREES THAT AZOVA AND ITS VENDORS AND LICENSORS DO NOT OPERATE OR CONTROL THE INTERNET AND THAT: (I) VIRUSES, WORMS, TROJAN HORSES, OR OTHER UNDESIRABLE DATA OR SOFTWARE; OR (II) UNAUTHORIZED USERS MAY ATTEMPT TO OBTAIN ACCESS TO AND DAMAGE CUSTOMER’S DATA, WEB SITES, COMPUTERS, OR NETWORKS. AZOVA WILL NOT BE RESPONSIBLE FOR SUCH ACTIVITIES.
19. Indemnity
Customer will defend and indemnify AZOVA and hold it harmless from any and all claims, losses, deficiencies, damages, liabilities, costs, and expenses (including, but not limited to, reasonable attorneys’ fees) incurred by AZOVA as a result of any claim by a third party arising from or related to any (i) Customer breach of this Agreement, (ii) Customer’s use of the Services in breach of this Agreement, or (iii) Customer Content. Customer’s indemnification obligations also include Customer’s noncompliance with any and all insurance contracts or coverage, payment or reimbursement laws, rules and regulations, and AZOVA makes no guarantee the use of the Services comply with government or third party payor reimbursement rules. Customer additionally indemnifies and holds AZOVA harmless for any and all losses, liabilities, damages, claims, costs, penalties, expenses, and fees (including, but not limited to, reasonable attorneys’ fees, disbursements of counsel, and costs of investigation, litigation, third party discovery, and settlement) arising out of or in connection with the introduction by Customer (whether inadvertent or purposeful) of any computer virus or malicious computer program into AZOVA’s computing systems, website code, or the unauthorized access of Customer or User data as result of unauthorized access to any of AZOVA’s computing systems or data.
20. Data Security and Confidentiality
In conjunction with the Services, from time to Customer and AZOVA may exchange Personally Identifiable Information (“PII”), as well as Protected Health Information (“PHI”). PII means any information identified as PII by law or regulation, or information relating to an identified or identifiable person and that, either by itself or in combination with other pieces of information, identifies, or can be used to identify, an individual. Examples of Personal Information include, but are not limited to, names, phone numbers, addresses, credit card information, social security numbers, as well as account or financial information. PHI means any information identified as PHI by law or regulation, such as individually identifiable health information. Customer and AZOVA agree to take such measures as required by law or regulation regarding the handling of PII, PHI, and any confidential data protected by law or regulation, and to adhere to the terms of the BAA attached hereto as Exhibit B. Customer further understands and agree that AZOVA may use system message logging, which may cache and store a copy of all conversations on our servers or secure messaging platforms to make them available across multiple devices or platforms to both parties to the conversation. AZOVA may automatically scan the content of messages sent or received on secure messaging platforms to enable or facilitate the performance of the Services or to improve features and functionality. For example, AZOVA may follow the links transmitted in messages in order to discern the format of those links and enable AZOVA to locate and retrieve the content.
21. Limitation of Liability and Damages
NEITHER AZOVA NOR ITS VENDORS AND LICENSORS WILL HAVE ANY LIABILITY TO CUSTOMER OR ANY THIRD PARTY FOR ANY LOSS OF PROFITS, SALES, TRADING LOSSES, BUSINESS, DATA, OR OTHER INCIDENTAL, CONSEQUENTIAL, OR SPECIAL LOSS OR DAMAGE, INCLUDING EXEMPLARY AND PUNITIVE, OF ANY KIND OR NATURE RESULTING FROM OR ARISING OUT OF THIS AGREEMENT, INCLUDING USE OF OR INABILITY TO USE THE SERVICES. THE TOTAL LIABILITY OF AZOVA AND ITS VENDORS AND LICENSORS TO CUSTOMER OR ANY THIRD PARTY ARISING OUT OF THIS AGREEMENT OR USE OF THE SERVICES IN CONNECTION WITH ANY CLAIM OR TYPE OF DAMAGE (WHETHER IN CONTRACT OR TORT, INCLUDING NEGLIGENCE) WILL NOT EXCEED THE TOTAL FEES PAID HEREUNDER BY CUSTOMER DURING THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY. THIS LIMITATION OF LIABILITY WILL APPLY EVEN IF THE EXPRESS WARRANTIES SET FORTH ABOVE FAIL OF THEIR ESSENTIAL PURPOSE.
22. Termination
22.1 Termination
Either party may terminate this Agreement or terminate a particular Service, with or without cause, upon written notice. The effective date of termination will be the end of the billing cycle during which termination is requested.
22.2 Suspension of Services
AZOVA may, in its sole discretion, immediately suspend Customer’s access to the Services for any of the following reasons: (a) to prevent damages or risk to, or degradation of, the Services; (b) to comply with any law, regulation, court order, or other governmental request; (c) to otherwise protect AZOVA from potential legal liability; or (d) in the event an invoice remains unpaid for more than thirty (30) days from the invoice date. AZOVA will use reasonable efforts to provide Customer with notice prior to or promptly following any suspension of the Services. AZOVA will promptly restore access to the Services as soon as the event giving rise to suspension has been resolved. This Section will not be construed as imposing any obligation or duty on AZOVA to monitor use of the Services.
22.3 Effect of Termination
Upon termination of this Agreement or termination of a particular Service for any reason: (a) Customer’s and all Users’ access to and use of the terminated Services will cease as of the effective date of termination; (b) AZOVA will cease to provide the Services, and Customer will pay to AZOVA all undisputed sums due to AZOVA for Services and authorized expenses incurred through the effective date of such expiration or termination (prorated as appropriate); and (c) AZOVA, at its sole discretion, may take reasonable steps to assist Customer in making an orderly transition of data related to the Services back to Customer or its designees and may notify all affected Users of the termination of this Agreement and either provide the Users with any applicable data or direct Users to Customer to obtain a copy of any User data provided to Customer utilizing the Services. Subsequent to the termination of this Agreement, the parties agree that AZOVA bears no responsibility for maintaining or preserving any Customer Content, User data, or data related to any Services provided to Customer or Users, including, but not limited to, User data provided to Customer utilizing such Services, but that AZOVA may in its discretion retain any such data for any period of time.
23. General Provisions
23.1 Affiliates, Subcontractors and Vendors
Some or all of the Services, including support, may be provided by AZOVA’s affiliates, agents, subcontractors and information system vendors. The rights and obligations of AZOVA may be, in whole or in part, exercised or fulfilled by the foregoing entities. AZOVA shall ensure such entities comply with all relevant terms of this Agreement and any failure to do so shall constitute a breach by AZOVA.
23.2 Publicity
AZOVA may identify Customer as a customer in its customer listings, websites, and other promotional materials. In addition, AZOVA may issue a press release regarding the parties’ relationship under this Agreement.
23.3 Force Majeure
Except for the payment of money as described in Section 16 (Fees) of this Agreement, neither party will be liable for any failure or delay in performance under this Agreement which is due to any event beyond the reasonable control of such party, including, without limitation, fire, explosion, unavailability of utilities or raw materials, Internet delays and failures, telecommunications failures, unavailability of components, labor difficulties, war, riot, act of God, export control regulation, laws, judgments or government instructions.
23.4 Entire Agreement; Amendment
This Agreement sets forth the entire agreement between the parties with regard to the subject matter hereof. No other agreements, representations, or warranties have been made by either party to the other with respect to the subject matter of this Agreement, except as referenced herein. To the extent that this Agreement conflicts with any click-wrap, browse-wrap, or online agreements (such as website terms of service or Notice of Privacy Practices), the language in this Agreement shall control.
23.5 Governing Law, Venue, Limitations of Actions
This Agreement will be construed according to, and the rights of the parties will be governed by, the law of the State of Utah, without reference to its conflict of laws rules or provisions, and the exclusive forum and venue for any dispute regarding or related to this Agreement shall be arbitration as set forth below.
23.6 Binding Arbitration
THIS IS A FULL WAIVER OF JURY TRIAL RIGHTS AND BINDING ARBITRATION. All disputes under, concerning or relating to this Agreement shall be resolved by mandatory binding arbitration. The arbitration proceeding shall be administered by the American Arbitration Association (“AAA”) or such other administrator, as the parties shall mutually agree upon. Arbitration shall be conducted in accordance with the AAA Commercial Arbitration Rules. If there is any inconsistency between the terms hereof and any such rules, the terms and procedures set forth herein shall control. A single arbitrator will resolve the dispute and shall be selected by mutual agreement of the parties. If the parties are unable to agree to an arbitrator, the AAA shall select and appoint the arbitrator. The arbitration shall be conducted in Utah County, Utah or such other location as may be mutually agreed upon by the parties. All statutes of limitation applicable to any dispute shall apply to any arbitration proceeding. All discovery activities shall be expressly limited to matters directly relevant to the dispute being arbitrated and subject to limitation by the arbitrator to a level commensurate with the amount in controversy and complexity of the issues involved. Judgment upon any award rendered in arbitration may be entered in any court having jurisdiction.
23.7 Compliance with Laws
Both parties agree to comply with all applicable local, state, national and foreign laws, rules, and regulations, including, but not limited to, all applicable data protection, privacy, anti-spam, export and import laws and regulations, in connection with their performance, access and/or use of the Services under this Agreement. AZOVA does not guarantee the Services are appropriate and/or available for use in any particular context or location and Customer is responsible for compliance with local laws to the extent applicable. AZOVA reserves the right to modify the Services for any reason, without notice and without liability to Customer or any User, to comply with applicable law.
23.8 No Third Party Beneficiaries
There are no third party beneficiaries to this agreement.
23.9 Relationship of the Parties
The parties agree that AZOVA will perform its duties under this Agreement as an independent contractor. Nothing contained in this Agreement will be deemed to establish a partnership, joint venture, association, or employment relationship between the parties. Personnel employed or retained by AZOVA who perform duties related to this Agreement will remain under the supervision, management, and control of AZOVA.
23.10 Assignment
Customer may not assign this Agreement without the prior written consent of AZOVA. AZOVA may assign this Agreement without the prior written consent of Customer.
23.11 Severability
If any of the provisions of this Agreement are found or deemed by a court to be invalid or unenforceable, they will be severable from the remainder of this Agreement and will not cause the invalidity or unenforceability of the remainder of this Agreement.
23.12 Waiver
Neither party will by mere lapse of time without giving notice or taking other action hereunder be deemed to have waived any breach by the other party of any of the provisions of this Agreement. Further, the waiver by either party of a particular breach of this Agreement by the other party will not be construed as, or constitute, a continuing waiver of such breach.
23.13 Survivial
The following provisions will survive termination or expiration of this Agreement: 11 (Proprietary Rights), 18.3 (Disclaimer of Warranties), 19 (Indemnity), 20 (Data Security and Confidentiality), 22 (Limitation of Liability and Damages), 23 (Termination), and 24 (General Provisions).
23.14 Notices
Any written notice or demand required by this Agreement will be sent by electronic mail (delivery receipt requested) to the email address provided in this Agreement. The notice will be effective as of the date of delivery. Any party may change the email address at which it receives notices by giving written notice to the other party in the manner prescribed by this Section.
1.1. “Breach” shall have the meaning given such term under 45 C.F.R. § 164.402.
1.2. “Designated Record Set” shall have the meaning given such term under 45 C.F.R. § 164.501.
1.3. “Disclose” and “Disclosure” mean, with respect to PHI, the release, transfer, provision of access to, or divulging in any other manner of PHI outside of Business Associate or to other than members of its Workforce, as set forth in 45 C.F.R. § 160.103.
1.4. “Electronic PHI” or “e-PHI” means PHI that is transmitted or maintained in electronic media, as set forth in 45 C.F.R. § 160.103.
1.5. “Protected Health Information” and “PHI” mean any information, whether oral or recorded in any form or medium, that: (a) relates to the past, present or future physical or mental health or condition of an individual; the provision of health care to an individual, or the past, present or future payment for the provision of health care to an individual; (b) identifies the individual (or for which there is a reasonable basis for believing that the information can be used to identify the individual); and (c) shall have the meaning given to such term under the Privacy Rule, including, but not limited to, 45 C.F.R. § 160.103. Protected Health Information includes e-PHI.
1.6. “Security Incident” shall have the meaning given to such term under 45 C.F.R. § 164.304.
1.7. “Services” shall mean the services for or functions on behalf of Covered Entity performed by Business Associate pursuant to any service agreement(s) between Covered Entity and Business Associates which may be in effect now or from time to time (“Underlying Agreement”), or, if no such agreement is in effect, the services or functions performed by Business Associate that constitute a Business Associate relationship, as set forth in 45 C.F.R. § 160.103.
1.8. “Subcontractor” shall have the meaning given to such term under 45 C.F.R. § 160.103.
1.9. “Unsecured PHI” shall have the meaning given to such term under 45 C.F.R. § 164.402.
1.10. “Use” or “Uses” mean, with respect to PHI, the sharing, employment, application, utilization, examination or analysis of such PHI within Business Associate’s internal operations, as set forth in 45 C.F.R. § 160.103.
1.11. “Workforce” shall have the meaning given to such term under 45 C.F.R. § 160.103.
2.1. Permitted Uses and Disclosures of Protected Health Information. Business Associate shall not Use or Disclose PHI other than for the purposes of performing the Services, as permitted or required by this BAA, or as Required by Law. Business Associate shall not Use or Disclose PHI in any manner that would constitute a violation of Subpart E of 45 C.F.R. Part 164 if so Used or Disclosed by Covered Entity. Without limiting the generality of the foregoing, Business Associate is permitted to (i) Use PHI for the proper management and administration of Business Associate; (ii) Use and Disclose PHI to carry out the legal responsibilities of Business Associate, provided that with respect to any such Disclosure either: (a) the Disclosure is Required by Law or (b) Business Associate obtains an agreement from the person to whom the PHI is to be Disclosed that such person will hold the PHI in confidence and will not Use and further Disclose such PHI except as Required by Law and for the purpose(s) for which it was Disclosed by Business Associate to such person, and that such person will notify Business Associate of any instances of which it is aware in which the confidentiality of the PHI has been breached; (iii) Use PHI for Data Aggregation purposes in connection with the Health Care Operations of Covered Entity; and (iv) Use PHI for purposes of de-identification of the PHI.
2.2. Adequate Safeguards of PHI. Business Associate shall implement and maintain appropriate safeguards and shall comply with the applicable requirements of Subpart C of 45 C.F.R. Part 164 to prevent Use or Disclosure of PHI other than as provided for by this BAA.
2.3. Reporting Security Incidents and Non-Permitted Uses or Disclosures of PHI. Business Associate shall notify Covered Entity of any Use or Disclosure by Business Associate or its Subcontractors that is not specifically permitted by this BAA and each Security Incident, including Breaches of Unsecured PHI, within five (5) business days of becoming aware. Notwithstanding the foregoing, Business Associate and Covered Entity acknowledge the ongoing existence and occurrence of attempted but ineffective Security Incidents that are trivial in nature, such as pings and other broadcast service attacks, and Covered Entity acknowledges and agrees that no additional notification to Covered Entity of such ineffective Security Incidents is required, as long as no such incident results in unauthorized access, Use or Disclosure of PHI. If Business Associate determines that a Breach of Unsecured PHI has occurred, Business Associate shall provide a written report to Covered Entity without unreasonable delay but no later than thirty (30) calendar days after discovery of the Breach. To the extent that information is available to Business Associate, Business Associate’s written report to Covered Entity shall be in accordance with 45 C.F.R. §164.410(c).
2.4. Use of Subcontractors. Business Associate shall require each of its Subcontractors that creates, maintains, receives, or transmits PHI on behalf of Business Associate, to execute a Business Associate Agreement that imposes on such Subcontractors substantially the same restrictions, conditions, and requirements that apply to Business Associate under this BAA with respect to PHI.
2.5. Access to Protected Health Information. To the extent that Business Associate maintains a Designated Record Set on behalf of Covered Entity, Business Associate shall make the PHI it maintains (or which is maintained by its Subcontractors) in such Designated Record Sets available to Covered Entity for inspection and copying to enable Covered Entity to fulfill its obligations under 45 C.F.R. § 164.524 within fifteen (15) business days of a request by Covered Entity.
2.6. Amendment of Protected Health Information. To the extent that Business Associate maintains a Designated Record Set on behalf of Covered Entity, Business Associate shall amend the PHI it maintains (or which is maintained by its Subcontractors) in Designated Record Sets to enable the Covered Entity to fulfill its obligations under 45 C.F.R. § 164.526 within fifteen (15) business days of a request by Covered Entity.
2.7. To the extent that Business Associate maintains a Designated Record Set on behalf of Covered Entity, within thirty (30) days of receipt of a request from Covered Entity or an individual for an accounting of disclosures of PHI, Business Associate and its Subcontractors shall make available to Covered Entity the information required to provide an accounting of disclosures to enable Covered Entity to fulfill its obligations under 45 C.F.R. § 164.528 and 42 U.S.C. § 17935(c).
2.8. Delegated Responsibilities. To the extent that Business Associate carries out one or more of Covered Entity’s obligations under Subpart E of 45 C.F.R. Part 164, Business Associate must comply with the requirements of Subpart E that apply to the Covered Entity in the performance of such obligations.
2.9. Availability of Internal Practices, Books, and Records to Government. Business Associate agrees to make its internal practices, books and records relating to the Use and Disclosure of Covered Entity’s PHI available to the Secretary for purposes of determining Covered Entity’s compliance with HIPAA, the HIPAA Regulations, and the HITECH Act.
3.1. Covered Entity shall notify Business Associate of any limitation(s) in the Notice of Privacy Practices of Covered Entity under 45 C.F.R. § 164.520, to the extent that such limitation may affect Business Associate’s Use or Disclosure of PHI.
3.2. Covered Entity shall notify Business Associate of any changes in, or revocation of, the permission by an individual to Use or Disclose his or her PHI, to the extent that such changes may affect Business Associate’s Use or Disclosure of PHI.
3.3. Covered Entity shall notify Business Associate of any restriction on the Use or Disclosure of PHI that covered entity has agreed to or is required to abide by under 45 C.F.R. § 164.522, to the extent that such restriction may affect Business Associate’s Use or Disclosure of PHI.
3.4. Covered Entity agrees to obtain any consent or authorization that may be required under HIPAA or any other applicable law and/or regulation prior to furnishing Business Associate with PHI.
3.5. Covered Entity shall not request Business Associate to make any Use or Disclosure of PHI that would not be permitted under HIPAA if made by Covered Entity.
3.6. Covered Entity agrees to fulfill its obligations under this BAA in a timely manner.
4.1. Term
The term of this BAA shall be effective as of the Effective Date and shall terminate as of the date that all of the PHI provided by Covered Entity to Business Associate, or created or received by Business Associate on behalf of Covered Entity, is destroyed or returned to Covered Entity, or, if it is infeasible to return or destroy the PHI, protections are extended to such information.
4.2. Termination for Cause
Upon Covered Entity’s or Business Associate’s knowledge of a material breach or violation of this BAA by the other Party, the non-breaching Party shall either:
A. Notify breaching Party of the breach in writing, and provide an opportunity for breaching Party to cure the breach or end the violation within thirty (30) business days of such notification; provided that if breaching Party fails to cure the breach or end the violation within such time period to the satisfaction of non-breaching Party, non-breaching Party may immediately terminate this BAA upon written notice to Business Associate; or
B. Upon thirty (30) business days written notice to Business Associate, immediately terminate this BAA if Covered Entity determines that such breach cannot be cured.
4.3. Disposition of Protected Health Information Upon Termination or Expiration.
A. Upon termination or expiration of this BAA, Business Associate shall either return or destroy all PHI received from, or created or received by Business Associate on behalf of Covered Entity, that Business Associate still maintains in any form and retain no copies of such PHI.
B. If return or destruction is not feasible, Business Associate shall continue to extend the protections of this BAA to the PHI for as long as Business Associate retains the PHI and limit further Uses and Disclosures of such PHI to those purposes that make the return or destruction of the PHI infeasible.
5.1. Relationship to Underlying Agreement Provisions.
In the event that a provision of this BAA is contrary to a provision of an Underlying Agreement, the provision of this BAA shall control. Otherwise, this BAA shall be construed under, and in accordance with, the terms of such Underlying Agreement, and shall be considered an amendment of and supplement to such Underlying Agreement, subject to Section 5.2 below.
5.2. Notices.
Any notices required or permitted to be given hereunder by either Party to the other shall be given in writing: (1) by personal delivery; (2) by electronic mail or facsimile with confirmation sent by United States first class registered or certified mail, postage prepaid, return receipt requested; (3) by bonded courier or by a nationally recognized overnight delivery service; or (4) by United States first class registered or certified mail, postage prepaid, return receipt, in each case, if addressed to AZOVA at 144 S. Main St., Alpine, Utah, 84004, and if to Covered Entity, to the address it provides to Customer. Notices shall be deemed received on the earliest of personal delivery; upon delivery by electronic facsimile with confirmation from the transmitting machine that the transmission was completed; twenty-four (24) hours following deposit with a bonded courier or overnight delivery service; or seventy-two (72) hours following deposit in the U.S. mail as required herein.
5.3. No Third Party Beneficiaries.
Nothing expressed or implied in this BAA or the Underlying Agreement is intended to confer, nor will it confer, upon any person any rights, remedies, obligations or liabilities other than those explicitly detailed in this BAA or in the Underlying Agreement.
5.4. Relationship of Parties.
Notwithstanding anything to the contrary in any Underlying Agreement, Business Associate is an independent contractor and not an agent of Covered Entity under this BAA. Business Associate has the sole right and obligation to supervise, manage, contract, direct, procure, perform or cause to be performed all Business Associate obligations under this BAA.
5.5. Amendment.
To the extent applicable, amendments or modification to HIPAA or the HITECH Act may require amendments to certain provisions of this BAA. Amendments shall only be effective if executed in writing and signed by a duly authorized representative of each party.
5.6. Interpretation.
To the extent that the terms of this BAA are not clear in satisfying the parties’ intention to comply with the applicable requirements of HIPAA, the HIPAA Regulations, and the HITECH Act, these BAA terms shall be construed so as to allow for compliance by both parties with the applicable requirements of HIPAA, the HIPAA Regulations, and the HITECH Act.
