SECTION 1: TERMS

This Terms of Service Agreement (“Agreement”) is entered into by and between WebPT, Inc. and its wholly owned subsidiaries (“WebPT”) and the party accepting this Agreement (“SUBSCRIBER”), and is effective as of the date this Agreement is accepted (“Effective Date”). By accepting this Agreement, or by accessing or using the Services (as defined below), or authorizing or permitting any end user to access or use the Services, SUBSCRIBER agrees to be bound by this Agreement. If the accepting person is entering into the Agreement on behalf of a company, organization or another legal entity (an “Entity”), such person is agreeing to this Agreement for that Entity and representing to WebPT that such person has the authority to bind such Entity to this Agreement, in which case the term “SUBSCRIBER” shall refer to such Entity. If the person accepting this Agreement does not have such authority, or if such person does not agree with this Agreement, that person must not accept this Agreement and may not use the Services. WebPT may make changes to the Services (as defined below) at any time. In addition, WebPT may make changes to this Agreement at any time by posting the modified Agreement on WebPT’s website. SUBSCRIBER’s continued use of the Services after such changes have been posted is deemed acceptance of any such changes. In consideration of the exchange of promises and covenants contained in this Agreement and other good and valuable consideration, the adequacy and sufficiency of such consideration the parties acknowledge, the parties agree as follows:

SECTION 2: SERVICES

SUBSCRIBER will receive from WebPT, and WebPT will provide to SUBSCRIBER, physical therapy documentation services, home exercise programs, billing software, patient reminder calls, patient relationship management programs, such as WebPT Reach, and/or WebPT Prescribe, and any other products and/or services offered by WebPT (collectively, the “Services”). WebPT, from time to time, may modify, upgrade or otherwise change the manner in which the Services are provided, including but not limited to, the hardware, software, features or environment, so long as such Services are substantially comparable or superior as such Services relate to functionality and reliability as compared to the prior Services being otherwise changed.

Subject to SUBSCRIBER’s compliance with the terms and conditions contained in this Agreement, WebPT hereby grants to SUBSCRIBER, during the term of this Agreement, a limited, revocable, non-transferable, non-sublicensable, non-exclusive right for its authorized users to access and use the Services in accordance with WebPT’s applicable documentation solely for SUBSCRIBER’s internal business purposes and not for the benefit of any other person or entity. 

As part of the Services provided under this Agreement, WebPT may submit information to the Centers for Medicare & Medicaid Services (“CMS”) on behalf of SUBSCRIBER. WebPT shall guarantee the accuracy of the information submitted to CMS on SUBSCRIBER’s behalf under the following terms:

(a) If SUBSCRIBER suffers a financial loss due to WebPT’s failure to accurately submit information to CMS on SUBSCRIBER’s behalf, WebPT will pay SUBSCRIBER the lesser of either (i) the amount of the penalties, interest, and any other fees incurred by SUBSCRIBER due to such failure, or (ii) the amount of fees paid by SUBSCRIBER to WebPT under this Agreement during the preceding 12-month period. WebPT shall make the applicable guarantee payment to SUBSCRIBER within thirty (30) days of the date that all available administrative appeals have been exhausted. This accuracy guarantee only applies to information provided by SUBSCRIBER for submission to CMS after January 1, 2016. SUBSCRIBER must be in good standing to be eligible to receive any payment under this guarantee.

(b) The following limitations apply to this guarantee:

(i) SUBSCRIBER must have properly set up, configured and maintained its profile on the WebPT system. To the extent the failure of WebPT to submit accurate information to CMS was caused by SUBSCRIBER’s failure to properly set up, configure or maintain its profile on the WebPT system, WebPT shall not be responsible for any inaccurate submission of information to CMS.

(ii) WebPT shall not be not be responsible for the failure of CMS to accept any submitted information to the extent such failure was caused by the SUBSCRIBER’s failure to provide WebPT, on the WebPT System, with complete and accurate information.

(iii) SUBSCRIBER must provide notice to WebPT of CMS’ rejection of any submission within three (3) business days of SUBSCRIBER’s receipt of such notice from CMS.

(iv) SUBSCRIBER must provide full and timely assistance to WebPT in confirming the nature and occurrence of the error that resulted in CMS’ failure to accept the submitted information, including providing access to WebPT with access to SUBSCRIBER’s records and all other relevant information related to the submission error.

(v) SUBSCRIBER must provide full and timely assistance to WebPT in challenging any CMS determination that WebPT determines is incorrect. To the extent an audit assessment involves other issues in addition to the alleged incorrect submission by WebPT, SUBSCRIBER shall work together with WebPT to ensure a collaborative response.

(vi) SUBSCRIBER must take reasonable steps to mitigate any losses upon receiving the first notification by CMS that WebPT submitted inaccurate information.

SECTION 3: PAYMENT FOR SERVICES

SUBSCRIBER shall pay the fees for the particular tier of WebPT Reach for which SUBSCRIBER has enrolled (the “Subscription Tier”). Additional fees will apply if SUBSCRIBER exceeds the limits applicable to its Subscription Tier and/or purchases additional services, features or functionality from WebPT. During the Term, SUBSCRIBER may add additional Permitted Locations by changing its Subscription Tier and paying the additional Fees applicable to such new Subscription Tier. WebPT reserves the right to change the fees for each Renewal Term upon ninety (90) Days prior written notice to SUBSCRIBER.

For all other Services, SUBSCRIBER will pay WebPT based on the SUBSCRIPTION Tier of services, number of users, and types of products selected by the SUBSCRIBER for each Service. 

All monthly charges due to WebPT from SUBSCRIBER shall be paid via credit card auto payment. Acceptance of this form by SUBSCRIBER authorizes WebPT to charge the credit card of SUBSCRIBER on a monthly basis for Services rendered as well as for an initial login setup cost. If a credit card charge is attempted and does not go through, SUBSCRIBER will have three (3) calendar days to resolve the situation. If the situation is not resolved within three (3) calendar days of notification that the credit card charge has failed, SUBSCRIBER agrees and understands that a $50 credit card failure fee will be charged to SUBSCRIBER’s account and service will be terminated following thirty (30) calendar days of non-payment. Service may be re-activated by SUBSCRIBER within sixty (60) calendar days of termination with a payment of all due funds. All payments will be made in U.S. dollars and are non-refundable. SUBSCRIBER will pay WebPT all costs and expenses, including reasonable attorneys’ fees, incurred by WebPT in enforcing any of the terms, conditions and provisions in this Agreement, including any of WebPT’s rights and remedies set forth in this Agreement. In the event SUBSCRIBER wishes to add providers, SUBSCRIBER shall upgrade to the appropriate Subscription Tier based on the number of providers for each Service in which SUBSCRIBER is enrolled. In the event SUBSCRIBER upgrades to a particular Subscription Tier within the first fifteen (15) days of the billing cycle for SUBSCRIBER, SUBSCRIBER will be charged the full applicable monthly cost. If SUBSCRIBER upgrades to a new Subscription Tier within the last fifteen (15) days of the billing cycle for SUBSCRIBER, the Subscription Tier will be charged half the applicable monthly cost. WebPT reserves the right to modify its fees and charges and to introduce new charges at any time, upon at least thirty (30) days prior notice to SUBSCRIBER, which notice may be provided by e-mail. 

WebPT shall invoice SUBSCRIBER for applicable sales, use and similar taxes on services fees and charges sourced to states where WebPT has nexus, as determined by WebPT in its sole discretion. SUBSCRIBER agrees to promptly pay such taxes when invoiced by WebPT. Notwithstanding the foregoing, SUBSCRIBER shall be solely responsible for the timely payment of all sales, use and similar taxes not invoiced by WebPT that are attributable to WebPT’s service fees and charges, including any interest, penalties and other costs incurred as a result of SUBSCRIBER’S non-compliance or delay with the performance of SUBSCRIBER’s obligations described in this sentence.

WebPT may at its discretion pass on any third-party fees, including, but not limited to royalty fees associated with CPT Editorial Content as further described in Section 18 below, to SUBSCRIBER.

SECTION 4: TERM AND TERMINATION

This Agreement shall be valid as of the Effective Date for a one-month period that shall be automatically renewed thereafter for successive monthly periods (the “Monthly Subscription Term”), unless either party gives written notice to the other party of non-renewal at least thirty (30) days prior to expiration of the then current Monthly Subscription Term. SUBSCRIBER may elect a one-year agreement at a discounted rate that shall be automatically renewed thereafter for a one-year period (the “Discounted Annual Subscription Term”), unless either party gives written notice to the other party of non-renewal at least thirty (30) days prior to expiration of the then-current Discounted Applicable Subscription Term.

SUBSCRIBER may order additional modules of the Services offered by WebPT under this Agreement (each, an “Optional Module”) on either an annual or monthly basis. Access to each annual Optional Module shall commence on the date such annual Optional Module is activated and continue until termination of the then-current Annual Subscription Term. Thereafter, access to each annual Optional Module shall renew for successive one-year terms and be co-terminus with the then-current Annual Subscription Term. Access to each monthly Optional Module shall be valid for a one-month period that shall be automatically renewed thereafter for successive monthly terms unless either party gives written notice to the other party of non-renewal at least thirty (30) days prior to expiration.

WebPT may, without prior notice, suspend or terminate SUBSCRIBER’s or any other user’s password, account or use of any of the Services, and/or remove and discard, alter or prevent access to any content within the Services, if WebPT in its sole discretion determines or discovers that SUBSCRIBER violated any provision of this Agreement. Upon suspension or termination of this Agreement, SUBSCRIBER must pay all fees to the date of termination as provided herein. WebPT may retain any content provided by SUBSCRIBER following termination or suspension provided that WebPT shall continue to treat such content in accordance with the Confidentiality terms below and consistent with any requirements under the Health Insurance Portability and Accountability Act and its implementing regulations (collectively, “HIPAA”). Following termination, the provisions of the following sections shall survive: Term and Termination, Conduct of Users, WebPT’s Limited Warranty, Confidentiality, Security, Proprietary Rights, Third Party Dealings, Disclaimers and Limitations, Ownership of Data, Unlawful Use, Defamatory or Abusive Material, Unauthorized Access, Other Activities, Editorial Content, Indemnification, Arbitration, Governing Law and General Provisions.

SECTION 5: CONDUCT OF USERS

The Services may be used only by SUBSCRIBER, its authorized users and its authorized agents, including affiliates, joint venture partners, licensees and subsidiaries. As more fully discussed in the Security section of this Agreement, SUBSCRIBER is solely responsible for maintaining the security of its user name(s) and password(s). Any use of SUBSCRIBER’s user name(s) and/or password(s) shall be deemed as authorized by SUBSCRIBER, unless SUBSCRIBER provides advance written notice to WebPT that its user name(s) and/or password(s) have been compromised. SUBSCRIBER acknowledges and agrees that any act or omission of its users in connection with, use of, or access to the Services, which act or omission would constitute a breach of this Agreement if undertaken by SUBSCRIBER, shall be considered a breach by SUBSCRIBER hereunder. SUBSCRIBER and its authorized users of the services may use the Services only as long as SUBSCRIBER and SUBSCRIBER’s authorized users comply with the terms of this Agreement. WebPT may amend or supplement this Agreement from time to time, and any amended or supplemented terms shall be posted by hyperlink to WebPT’s homepage, which posting shall be deemed reasonable and adequate notice to SUBSCRIBER and SUBSCRIBER’s authorized users of the amended or supplemented terms.

WebPT may offer one or more forums for the exchange of information among our users. SUBSCRIBER acknowledges that any text, data, graphics, images, video or other content (“Content”) that it submits in any of WebPT’s forums (including discussion groups, blogs, surveys, ratings, comment forms, or message boards, collectively, “Public Forums”) is available to the public. Notwithstanding the foregoing, WebPT is under no obligation to display any of SUBSCRIBER’s Content that it submits, and WebPT reserves the right to remove or edit SUBSCRIBER’s Content at any time, for any or no reason.

It is important that SUBSCRIBER acts responsibly when submitting Content to a Public Forum. SUBSCRIBER acknowledges that any Content that it submits in a Public Forum is available to the public. SUBSCRIBER is solely responsible for any Content that it posts on the Public Forums or transmits to other users of WebPT’s Services. SUBSCRIBER acknowledges that any information it posts in a Public Forum may be available to the public, and may result in SUBSCRIBER receiving communications from others outside WebPT’s Services.

SUBSCRIBER’s participation in WebPT’s Public Forums is contingent on SUBSCRIBER’s acknowledgment and agreement with the following:

  • SUBSCRIBER will only disclose information about itself on a Public Forum that it considers suitable for public disclosure. SUBSCRIBER will not disclose information that personally identifies SUBSCRIBER unless it intends for that information to be disclosed publicly. WebPT strongly recommends that SUBSCRIBER refrain from disclosing any sensitive information about itself on a Public Forum, including information about any medical condition.
  • SUBSCRIBER will not violate the privacy rights of others, including disclosing information about anyone else’s medical or financial condition or any other sensitive subjects.
  • SUBSCRIBER will ensure that any Content that it submits to Public Forums is accurate.
  • SUBSCRIBER will not post any Content tha tit do not have the right to post; SUBSCRIBER will not violate any person’s or entity’s intellectual property or proprietary rights, including copyrights, trademarks or trade secret rights.
  • WebPT will not be liable to SUBSCRIBER for any Content SUBSCRIBER submits to any Public Forum.

Without limiting the generality of the foregoing, when SUBSCRIBER uses any of our Services (including the Public Forums), SUBSCRIBER will adhere to the following "Community Standards":

  • SUBSCRIBER will not threaten, harass, defame, disparage, menace, stalk or abuse any user, individual or entity.
  • SUBSCRIBER will not use any language that is racist, sexist or degrading to any religion, ethnicity, sexual orientation, gender or nationality.
  • SUBSCRIBER will not engage in, or advocate engaging in, any fraudulent, violent or other illegal conduct.
  • SUBSCRIBER will not submit pornographic, obscene or sexually suggestive Content.
  • SUBSCRIBER will not impersonate any person or entity, including any of WebPT’s employees. SUBSCRIBER will only submit Content that it believes to be true and SUBSCRIBER will not purposely provide false or misleading information.
  • SUBSCRIBER will not submit any unauthorized or unsolicited advertising, including website links not authorized by WebPT.
  • SUBSCRIBER will not submit spam or mass-emails to any of WebPT’s Services nor any other user or any individual or entity identified on WebPT’s Services.
  • SUBSCRIBER may not state or imply that any product, service, individual, or entity is sponsored or endorsed by WebPT.
  • SUBSCRIBER will not infringe, misappropriate or otherwise violate any copyright, trademark or other proprietary right of any individual or entity.
  • SUBSCRIBER understands and agrees that WebPT may, but are not obligated to, monitor, edit or remove any Content for any or no reason at any time. WebPT is not responsible, however, for any delay or failure in removing any Content.

SECTION 6: WebPT’s LIMITED WARRANTY

WebPT represents and warrants to SUBSCRIBER that the Services will be performed in a manner consistent with industry standards and in compliance with any specifications and requirements set forth in this Agreement. SUBSCRIBER shall notify WebPT in writing within thirty (30) calendar days after performance of any Services if such Services do not conform to the foregoing warranties. If SUBSCRIBER fails to provide timely written notice to WebPT, the Services will be deemed to be in compliance with the foregoing warranties. SUBSCRIBER’s exclusive remedy for breach of the foregoing warranties shall be for WebPT, at its option, to re-perform the Services at no cost to SUBSCRIBER, or, in the event of interruption of the Services, issue SUBSCRIBER a credit in an amount equal to the prorated charges for the interrupted period.

The foregoing warranties shall not apply to performance issues or defects in the Services that resulted from: (a) factors outside of WebPT’s reasonable control; (b) any actions or inactions of SUBSCRIBER or its authorized users; or (c) SUBSCRIBER’s equipment or any third parties’ equipment not within the control of WebPT.

SECTION 7: CONFIDENTIALITY

SUBSCRIBER agrees to provide true, accurate and complete information about itself and its authorized users of the Services. All proprietary and confidential information and materials (“Confidential Information”) of either party will be held in confidence by the other party. Confidential Information will include, without limitation, information relating to a party’s business and marketing plans and processes, rates, fees and other terms of pricing of the Services, customers, software, hardware and technology, or quality of performance of the Services. Confidential Information will not include information (a) already known or independently developed by the recipient, (b) in the public domain through no wrongful act of the recipient, or (c) received by the recipient from a third party who was authorized to disclose it. SUBSCRIBER’s Confidential Information will include “Personally Identifiable Information” about SUBSCRIBER and its authorized users. Personally Identifiable Information is information that personally identifies a person or entity. WebPT will not knowingly, nor knowingly permit others to, release Personally Identifiable Information without the written consent of SUBSCRIBER. Neither party will use (for itself or for any third party) or disclose, nor permit any other person or entity under its control to use or disclose any Confidential Information, except (i) to employees, agents, third party contractors, or representatives of the recipient who have a “need to know” the information and are subject to an obligation of confidentiality at least as restrictive as the restrictions contained in this Confidentiality section, (ii) if required by law, legal process, or to comply with an issued subpoena, (iii) to enforce this Agreement, (iv) to respond to claims that any content violates the rights of third parties, or (v) to protect the rights, property, or personal safety of WebPT, users of the Services or members of the public. Each party will promptly notify the other party if it receives a request for the other party’s Confidential Information (unless notice is prohibited by law), and will reasonably cooperate with the other party’s efforts to seek protection from disclosure. Upon termination of this Agreement, the provisions of this Confidentiality section will survive for a period of three (3) years from the termination date, and each party will either return to the other party all Confidential Information of the other party in its possession or control, or, at the other party’s request, destroy any such Confidential Information.

SUBSCRIBER and/or its end users may provide suggestions, comments or other feedback to WebPT with respect to the products and services, including the Services. Feedback is voluntary and WebPT is not required to hold it in confidence. Feedback may be used by WebPT for any purpose without obligation of any kind.

SECTION 8: SECURITY

SUBSCRIBER agrees to keep secure and confidential any user name WebPT issues to SUBSCRIBER, and any password (whether issued by WebPT to SUBSCRIBER or created by SUBSCRIBER). SUBSCRIBER will be fully responsible for all activity that occurs under the use of SUBSCRIBER’s user name or password. SUBSCRIBER agrees to immediately notify WebPT in writing of any unauthorized use of SUBSCRIBER’s user name or password. WebPT will use commercially reasonable efforts to protect the security of the Services; however, WebPT does not warrant or guarantee the integrity or the security of the Services or of the content, information or data transmitted through or contained within any portion of the Services.

To further protect the confidentiality, integrity and availability of the information housed and shared on WebPT Services, as well as the stability of WebPT Services, SUBSCRIBER agrees to the following additional safeguards. Accordingly, SUBSCRIBER agrees that SUBSCRIBER will not, nor will SUBSCRIBER attempt to:

  • access, use or disseminate WebPT Services, nor any information or files accessible via WebPT Services, in a manner that violates any applicable law or regulation or the rights of any individual or entity;
  • sell or transfer any information included in WebPT Services or use such information to market any product or service — including by sending, or facilitating the sending of, unsolicited emails or SPAM;
  • probe, scan or test the vulnerability of WebPT Services, or of the system or network supporting WebPT Services, or circumvent any security or authentication measures;
  • disable, bypass, defeat, avoid, remove, deactivate or otherwise circumvent any technical measures WebPT has implemented to safeguard the stability of WebPT Services, or the confidentiality, integrity or availability of any information, content or data hosted or housed on WebPT Services;
  • introduce to WebPT Services any software, code or other device that in any way (i) permits unauthorized access to WebPT systems or any software, hardware, files or data located thereon, (ii) disables or damages or otherwise interferes with or adversely affects the operation of WebPT systems or any software, hardware, files or data located thereon, or (iii) overburdens or interferes with the proper functioning of WebPT Services;
  • disassemble, decompile or reverse engineer WebPT Services;
  • harvest, retrieve, index or publish any portion of WebPT Services unless SUBSCRIBER is a Public Search Engine engaging in Public Search Services;
  • remove any copyright, trademark or other proprietary rights notices contained in or on WebPT Services; or engage in any activity other than those expressly permitted in this Agreement.

SECTION 9: PROPRIETARY RIGHTS

WebPT owns or has authority to use any and all rights pertaining to: (a) the content contained in or presented through the Services by WebPT or by third parties engaged by WebPT (including but not limited to, text, music, sound, photographs, graphics, video, page layout, Editorial Content (defined below), and design), (b) the software, hardware, files, processes, systems, databases and tools used or provided to SUBSCRIBER by WebPT or by third parties engaged by WebPT to provide the Services, (c) other tangible and intangible personal property relating to the Services, and (d) the trade names, trademarks, service marks, copyrights, patents, inventions, trade secrets, know-how and other intellectual property rights relating to the foregoing (subsections (a), (b), (c), and (d) in this Proprietary Rights section shall collectively be referred to as “WebPT Property”).

SUBSCRIBER is prohibited from publishing, distributing via the Internet or any other public computer based information system, creating derivative works of (including translating), transferring, selling, leasing, licensing, or otherwise making available to any unauthorized party any WebPT Property.

SUBSCRIBER is granted the right to use that portion, and only that portion, of WebPT Property that is contemplated in this Agreement. SUBSCRIBER will not copy, revise, alter, modify, decompile, reverse engineer, assemble, or attempt to discover, nor sell, assign, sublicense, encumber, or otherwise transfer any interest in any WebPT Property, including but not limited to, any object code, source code, underlying processes or algorithms contained therein, other than as is permitted by WebPT in writing, and SUBSCRIBER will not permit any person or entity to commit or engage in such activities or conduct. SUBSCRIBER acknowledges that any violation of this Proprietary Rights section imposes a serious threat to WebPT’s business and its ability to exist.

SUBSCRIBER hereby grants to WebPT a limited, non-transferable, non-sublicensable, non-exclusive license, during the Term, to use, reproduce, display, and distribute the SUBSCRIBER trademarks solely in connection with and solely as necessary to provide the Subscription Service to SUBSCRIBER and its end users (including creating SUBSCRIBER-branded emails and SUBSCRIBER-specific subdomains), subject to the terms of this Agreement. WebPT shall comply with SUBSCRIBER’s then-current policies regarding the use of SUBSCRIBER’s trademarks. WebPT acknowledges and agrees that all intellectual property rights in the SUBSCRIBER’s trademarks belong to and shall continue to belong to SUBSCRIBER (or its licensors or other third-party owners), and WebPT shall have no rights in or to the SUBSCRIBER trademarks other than as specifically set forth in this Agreement.

WebPT will respond to notices of alleged copyright infringement that comply with applicable law and are properly provided to WebPT. If SUBSCRIBER believes its content has been copied in a way that constitutes copyright infringement, please provide WebPT with the following information:

  • A physical or electronic signature of the copyright owner or a person authorized to act on behalf of the owner, if someone other than SUBSCRIBER, of an exclusive right that is allegedly infringed;
  • Identification of the copyrighted work claimed to have been infringed;
  • Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material;
  • A statement by SUBSCRIBER that it has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law;
  • A statement that the information in the notification is accurate, and, under penalty of perjury, that SUBSCRIBER has authorized to act on behalf of the copyright owner; and
  • SUBSCRIBER’s contact information, including address, telephone number, and email address.

WebPT reserves the right to remove content alleged to be infringing without prior notice, at its sole discretion, and without liability to SUBSCRIBER. In appropriate circumstances, WebPT will also terminate a user’s account if the user is determined to be a repeat infringer.

SECTION 10: THIRD PARTY DEALINGS

If SUBSCRIBER acquires goods or services from a third party, whether or not the goods or services are used as part of the Services, SUBSCRIBER agrees that its business dealings with that third party are solely between SUBSCRIBER and the third party. WebPT has no liability for any reason in any way arising from SUBSCRIBER’s relationship with such third parties or the goods or services acquired, including but not limited to, complaints or claims concerning failure to perform, defects in goods or services or otherwise. SUBSCRIBER may give a third party the authority to act on SUBSCRIBER’s behalf as an agent of SUBSCRIBER with respect to the Services and/or this Agreement; however, any such third party acting as an agent of SUBSCRIBER shall not interfere with, nor obstruct, SUBSCRIBER’s access to the Services or any content or information submitted by SUBSCRIBER under this Agreement.

Links to other websites or resources may be provided by WebPT or third parties as part of the Services. SUBSCRIBER agrees that WebPT has no control over such other websites or resources, and is not responsible in any way for those other websites or resources including but not limited to, any content, advertising, products or material on or available from such other websites or resources.

In the event SUBSCRIBER is acquired by a third party, SUBSCRIBER must provide WebPT with written notification of such acquisition within five (5) days of the completion of the underlying transaction. WebPT reserves the right, but does not assume any obligation, to request additional information from the SUBSCRIBER and/or the acquiring third party entity before providing the acquiring third party entity with access to the Services under this Agreement and/or other information related to this Agreement or the Services.

SECTION 11: DISCLAIMERS AND LIMITATIONS

SUBJECT TO THE LIMITED WARRANTIES SET FORTH IN WEBPT’S LIMITED WARRANTY SECTION, SUBSCRIBER’S USE OF THE SERVICES AND ANY EQUIPMENT, SOFTWARE AND HARDWARE PROVIDED IN CONNECTION WITH THE SERVICES, IS ON AN “AS IS” BASIS. WHILE WEBPT WILL EXERCISE COMMERCIALLY REASONABLE BEST EFFORTS TO PROVIDE THE SERVICES, WEBPT DOES NOT MAKE, AND HEREBY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, OF ANY KIND OR NATURE WITH RESPECT TO THE SERVICES OR SUCH PROPERTY, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NEITHER WEBPT NOR ANY OTHER PERSON OR ENTITY INVOLVED IN CREATING, PRODUCING OR DELIVERING ANY OF THE SERVICES PROMISES, REPRESENTS OR WARRANTS THAT THE SERVICES WILL BE TIMELY, UNINTERRUPTED OR ERROR FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SERVICES OR THE SERVERS OR OTHER PROPERTY THAT ARE USED IN PROVIDING THE SERVICES WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. WEBPT HEREBY SHALL NOT BE LIABLE OR RESPONSIBLE IN ANY WAY FOR ANY INACCURACY, ILLEGALITY, AND/OR INAPPROPRIATENESS OF ANY CONTENT PROVIDED TO ANY WEBSITE OR ANY PUBLIC AREA, ANY DAMAGE, DESTRUCTION OR CORRUPTION OF ANY CONTENT OR OTHER DATA, OR ANY USE OR MISUSE OF, OR INABILITY TO USE, THE SERVICES BY ANY PERSON OR ENTITY.

WEBPT ASSUMES NO LIABILITY, WARRANTY, OR RESPONSIBILITY WHATSOEVER WITH RESPECT TO THE USE OF THE SUBSCRIPTION SERVICES, OR ANY ANALYSIS FROM SUCH USE, BY SUBSCRIBER OR ANY OF ITS END USERS IN CONNECTION WITH DIAGNOSIS OR TREATMENT OF ANY PATIENT WITH RESPECT TO HIS OR HER MEDICAL CONDITION. IN PROVIDING THE SUBSCRIPTION SERVICES, NO RECOMMENDATIONS ARE GIVEN OR IMPLIED BY WEBPT AS TO DIAGNOSIS OR TREATMENT OF A PATIENT WITH RESPECT TO HIS OR HER MEDICAL CONDITION. THE SERVICES DO NOT PROVIDE A PLAN FOR THE TREATMENT OF A PATIENT AND DO NOT CONSTITUTE MEDICAL ADVICE. THE SUBSCRIPTION SERVICES ARE NOT MEANT TO SERVE AS A SUBSTITUTE FOR SUBSCRIBER’S OR ITS END USERS’ PROFESSIONAL MEDICAL JUDGMENT, AND SUBSCRIBER AND ITS END USERS SHOULD ALWAYS EXERCISE THEIR PROFESSIONAL JUDGMENT IN EVALUATING THEIR PATIENTS, AND SHOULD CAREFULLY CONSIDER ANY TREATMENT PLAN.

IN NO EVENT WILL WEBPT NOR ANY OTHER PERSON OR ENTITY INVOLVED IN CREATING, PRODUCING OR DELIVERING ANY OF THE SERVICES BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES (EVEN IF WEBPT HAS BEEN NOTIFIED OF THE POSSIBILITY OF SUCH LOSSES) ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SERVICES. WEBPT’s MAXIMUM LIABILITY FOR ANY CLAIM ARISING OUT OF THIS AGREEMENT OR THE SERVICES WILL BE LIMITED TO THE AMOUNT OF FEES PAID BY SUBSCRIBER TO WEBPT UNDER THIS AGREEMENT FOR THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRIOR TO WHEN ANY CLAIM OR CAUSE OF ACTION AROSE.

SUBSCRIBER agrees that any claim or cause of action which SUBSCRIBER may have related to this Agreement or the Services must be filed within one (1) year after such claim or cause of action arises, or the claim or cause of action will forever be barred.

Each party must provide written notice to the other party at least thirty (30) calendar days prior to filing or otherwise initiating any action, charge or lawsuit against the other. The written notice must describe the factual basis for the dispute, and provide at least thirty (30) calendar days for the receiving party to remedy, cure or otherwise resolve the matters stated in the notice.

WebPT will not be liable for failure or delay in performing the Services or other obligations under this Agreement if the failure or delay is due to circumstances beyond WebPT’s control including but not limited to, acts of any governmental body, war, insurrection, sabotage, embargo, fire, flood, strike or other labor disturbance, interruption of or delay in transportation, unavailability of, interruption or delay in telecommunication or third party services (including DNS propagation), failure of third party software or hardware, or inability to obtain raw materials, supplies, or power used in equipment needed for the provision of the Services.

SECTION 12: OWNERSHIP OF DATA

WebPT agrees that SUBSCRIBER’s documents (“SUBSCRIBER Content” which shall also be known and treated by WebPT as Confidential Information) are the exclusive property of SUBSCRIBER. SUBSCRIBER Content shall include, but not be limited to (a) SUBSCRIBER’s data collected, used, processed, stored, or generated as the result of the use of the Services; (b) protected health information; (c) personally identifiable information (“PII”) collected, used, processed, stored, or generated as the result of the use of the Services, including, without limitation, any information that identifies an individual, such as an individual’s social security number or other government-issued identification number, date of birth, address, telephone number, biometric data, email address, or an individual’s name in combination with any of the elements listed herein. Upon the request of SUBSCRIBER at termination of this Agreement, WebPT shall transmit to SUBSCRIBER a copy of SUBSCRIBER’s documents, subject to reasonable reproduction and distribution fees to be determined by WebPT and paid by SUBSCRIBER to WebPT. SUBSCRIBER grants to WebPT a non-exclusive, perpetual, irrevocable, royalty-free right and license to use, process, and store any documents, material, data or other content submitted by SUBSCRIBER in accordance with the terms of this Agreement. SUBSCRIBER represents and warrants that SUBSCRIBER has all necessary rights, approvals, and consents to provide such content to WebPT and grant the rights set forth above.

Notwithstanding anything else in this Agreement or otherwise, WebPT may monitor SUBSCRIBER’s use of the Services, use data and information related to such use, and SUBSCRIBER’s content in an aggregate manner, including to compile statistical and performance information related to the provision and operation of the Services (“Aggregated Statistics”). As between WebPT and SUBSCRIBER, all right, title, and interest in the Aggregated Statistics and all intellectual property rights therein, belong to and are retained solely by WebPT. SUBSCRIBER acknowledges that WebPT will be compiling Aggregated Statistics based on SUBSCRIBER’s input into the Services and SUBSCRIBER agrees that WebPT may (a) make such Aggregated Statistics available to third parties in an anonymous manner, and (b) use such information to the extent and manner required by applicable law or regulation and for purposes of data gathering, analysis and service enhancement, provided that such data and information will be used in accordance with WebPT’s privacy policies and confidentiality terms of this Agreement. Aggregated Statistics will be used for such purposes as to improve SUBSCRIBER’s clinical outcomes and to establish the efficacy of SUBSCRIBER’s Services. WebPT will never sell SUBSCRIBER’s Content to third parties for marketing purposes.

SECTION 13: Unlawful Use

SUBSCRIBER nor any of its users shall not upload, transmit or post any content, or engage in any other use of the Services that violates any law, rule or regulation, defames or libels any other person or entity, infringes any other person’s or entity’s rights, including but not limited to, any intellectual property or privacy rights, or any other rights for which the violation of such rights could result in civil or criminal liability. WebPT reserves the right to notify any governmental entity, law enforcement authority, or any other party that it deems appropriate in its sole discretion, of any such activity. Uploading, posting or transmitting any content that infringes any patent, trademark, trade secret, copyright, publicity or proprietary right of any person or entity will be grounds for immediate termination of the Services or other corrective action.

SECTION 14: Defamatory or Abusive Material

SUBSCRIBER nor any of its users shall not upload defamatory, obscene, profane, vulgar, threatening, offensive, abusive, inaccurate or illegal material. WebPT reserves the right, to the fullest extent permitted under law, to cooperate with any governmental authority or third party investigating conduct that may be illegal or harm any individual or entity or violates their respective rights.

SECTION 15: Unauthorized Access

SUBSCRIBER or any of its users shall not access, or attempt to access, another person’s or entity’s accounts without proper authorization to do so, or attempt to disrupt or interfere with the Services in any manner. Each of SUBSCRIBER and any of its users, must register and maintain a valid email address with WebPT in order to receive system notifications.

SECTION 16: Use and Data Storage

WebPT may establish and change from time to time general practices and limits on the use of the Services, the amount of central processing unit (CPU) processing, bandwidth and disk usage, and levels of activity.WebPT will use commercially reasonable efforts to provide SUBSCRIBER with advance notice of these practices and limits. Violation of these practices and limits will be considered a violation of this Agreement.

SECTION 17: Other Activities

SUBSCRIBER or any of its users shall not engage in any other activity that WebPT determines in its sole discretion may be harmful to other users or the Services.

WebPT does not in the ordinary course pre-screen or monitor content of the database or any other communications. However, WebPT reserves the right, but does not assume any obligation, to determine in its sole discretion what is and is not acceptable content in connection with the Services, to limit placement of any content in a database or on any other area provided in connection with the Services, to use commercially reasonable efforts to remove, alter or block access to any offensive, objectionable, or unacceptable content immediately and without prior notice, to determine in its sole discretion what is and is not an appropriate conduct and use of any of the Services, and to cease providing or bar access to any or all of the Services to any user at any time, for any reason or for no reason, without prior notice. WebPT reserves the right, but does not assume any obligation, to monitor and investigate complaints regarding any of the foregoing, and SUBSCRIBER agrees to grant WebPT access to SUBSCRIBER’s account at any time without notice, and to cooperate fully with WebPT in providing access and information as may be requested at any time and from time to time. SUBSCRIBER agrees that any reservation of rights by WebPT imposes no obligation of any kind on WebPT to take any of the foregoing actions.

SECTION 18: CPT; Editorial Content

The Services provided under this Agreement includes current procedural technology (“CPT”), which is commercial technical data and/or computer data bases and/or commercial computer software and/or commercial computer software documentation, as applicable, which were developed exclusively at private expense by the American Medical Association (“AMA”). CPT is copyrighted by the AMA and is a registered trademark of the AMA. Any use not authorized herein is prohibited, including but not limited to, making copies of CPT for resale and/or license, transferring copies of CPT to any party not bound by this Agreement, creating any modified or derivative work of CPT, or making any commercial use of CPT. License to use CPT for any use not authorized herein must be obtained through the AMA, CPT Intellectual Property Services, 515 N. State Street, Chicago, IL 60610. Applications are available at the AMA Web site, http://www.ama-assn.org/go/cpt.

U.S. Government rights to use, modify, reproduce, release, perform, display, or disclose CPT are subject to the limited rights restrictions of DFARS 252.227-7015(b)(2) (November 1995) and/or subject to the restrictions of DFARS 227.7202-1(a) (June 1995) and DFARS 227.7202-3(a) (June 1995), as applicable for U.S. Department of Defense procurements and the limited rights restrictions of FAR 52.227-14 (December 2007) and/or subject to the restricted rights provisions of FAR 52.227-14 (December 2007) and FAR 52.227-19 (December 2007), as applicable, and any applicable agency FAR Supplements, for non-Department of Defense Federal procurements.

CPT is provided “as is” without warranty of any kind, either expressed or implied, including but not limited to, the implied warranties of merchantability and fitness for a particular purpose. No fee schedules, basic unit, relative values or related listings are included in CPT. The AMA does not directly or indirectly practice medicine or dispense medical services. The responsibility for the content of this file/product is with the CMS and no endorsement by the AMA is intended or implied. The AMA disclaims responsibility for any consequences or liability attributable to or related to any use, non-use, or interpretation of information contained or not contained in this file/product. This Agreement will terminate upon notice if you violate its terms. The AMA is a third party beneficiary to this Agreement.

The scope of this license is determined by the AMA, the copyright holder. Any questions pertaining to the license or use of the CPT should be addressed to the AMA. End users do not act for or on behalf of the CMS. CMS DISCLAIMS RESPONSIBILITY FOR ANY LIABILITY ATTRIBUTABLE TO END USER USE OF THE CPT. CMS WILL NOT BE LIABLE FOR ANY CLAIMS ATTRIBUTABLE TO ANY ERRORS, OMISSIONS, OR OTHER INACCURACIES IN THE INFORMATION OR MATERIAL CONTAINED ON THIS PAGE. In no event shall CMS be liable for direct, indirect, special, incidental, or consequential damages arising out of the use of such information or material.

WebPT also licenses from the AMA certain editorial content (“Editorial Content”) and the license granted by the AMA to WebPT is a nontransferable, nonexclusive license for the sole purpose of internal use by SUBSCRIBER. Continued use of the Editorial Content and any such update to such Editorial Content is dependent on the continued contractual relationship by and between WebPT and the AMA.

SECTION 19: INDEMNIFICATION

SUBSCRIBER agrees to indemnify and hold WebPT (as well as its parents, subsidiaries, affiliates, officers, members, shareholders, employees, agents and representatives) harmless, to the fullest extent allowed by law, from any and all claims, liability and expenses (including but not limited to, reasonable attorneys’ fees) arising out of or related to (a) SUBSCRIBER’s use of the Services (unless the claim directly relates to WebPT’s misconduct), (b) SUBSCRIBER’s breach of any provision of this Agreement, or (c) any claim arising out of content posted or transmitted by any person or entity associated with or authorized by SUBSCRIBER (other than WebPT) through the use of the Services. WebPT reserves the right to select counsel of its own choosing for, and otherwise to control its own defense, at SUBSCRIBER’s expense, of any matter subject to indemnification by SUBSCRIBER, which shall not excuse SUBSCRIBER’s indemnity obligations.

SECTION 20: NOTICES and STATEMENTS

Except as otherwise specifically provided in this Agreement, all notices and statements may be sent by electronic mail, facsimile or overnight delivery to the electronic mail address, fax number or delivery address most recently provided in writing or via online submission to the other party. For overnight deliveries, notices and statements will be deemed to be received upon personal delivery. For facsimile and electronic mail deliveries, notices and statements will be deemed to be upon transmission.

SUBSCRIBER EXPRESSLY CONSENTS TO RECEIVE TELEPHONE CALLS, FAXES AND EMAILS OR ANY OTHER TYPE OF CORRESPONDENCE FROM WEBPT OR ANY OF WEBPT’s EMPLOYEES, AGENTS OR OTHER REPRESENTATIVES RELATING TO THIS AGREEMENT OR THE SERVICES DESCRIBED IN THIS AGREEMENT.

Evidence of successful transmission shall be retained. As of the date of execution, the addresses for SUBSCRIBER is as entered in the address portion of this form and the address for WebPT is:

WebPT, Inc.
625 S. 5th Street, Bldg. A
Phoenix, AZ 85004
Phone: (866) 221-1870
Fax: (866) 225-0057
Email for Notices and Billing Questions: Legal@WebPT.com

SECTION 21: ARBITRATION

Any controversy or claim arising out of this Agreement or any alleged breach of this Agreement shall be resolved by means of binding arbitration before the American Arbitration Association (“AAA”) in Phoenix, Arizona. The arbitrator is not authorized to award punitive or other damages not measured by the prevailing party’s actual damages. 

WebPT may apply to arbitrator seeking injunctive relief until an arbitration award is rendered or the dispute is otherwise resolved. WebPT also may, without waiving any other remedy, seek from any court having jurisdiction any interim or provisional relief that is necessary to protect the rights or property of WebPT pending the arbitrator’s appointment or decision on the merits of the dispute.

The arbitrator shall issue a reasoned award. Judgment upon the arbitrator’s award may be entered in any court having jurisdiction. The arbitration proceeding and arbitrator’s award shall be maintained as strictly confidential, except as otherwise required by court order or as necessary to confirm, vacate or enforce the award and for disclosure in confidence to the parties’ respective attorneys. 

Each party shall bear their own fees and costs related to the arbitration. However, the parties shall pay an equal share of the arbitrator’s fees and costs. 

SECTION 22: GOVERNING LAW

This Agreement is entered into in the state of Arizona. This Agreement and any rights, remedies, or obligations provided for in this Agreement shall be construed and enforced in accordance with the laws of the state of Arizona without regard to the conflicts provisions thereof. Each Party irrevocably consents to the exclusive jurisdiction and venue of any state or federal court located within Maricopa County, State of Arizona in connection with any matter arising out of this Agreement or the transactions contemplated under this Agreement. 

SECTION 23: GENERAL PROVISIONS

This Agreement and set forth the entire agreement of the parties with respect to the subject matter hereof and supersedes all previous communications, representations, understandings and agreements, either oral or written, between the parties with respect to said subject matter. If any portion, provision, or part of this Agreement is held, determined, or adjudicated to be invalid, unenforceable or void for any reason whatsoever, each such portion, provision or part shall be severed from the remaining portions, provisions or parts of this Agreement and shall not affect the validity or enforceability of any remaining portions, provisions or parts. No waiver of any breach or failure or delay in exercising any right, power or remedy of any provision of this Agreement shall constitute a waiver of the same or any other provision hereof with respect to prior, concurrent or subsequent occurrences. No waiver shall be effective unless made in writing and signed by an authorized representative of the party against whom such waiver is sought. Titles and headings are included solely for convenient reference and are not part of this Agreement. SUBSCRIBER may not assign any of its rights or obligations (in whole or in part) without the prior written consent of WebPT, which shall not be unreasonably withheld. WebPT may assign this Agreement, without SUBSCRIBER’s consent, in connection with a merger, sale, transfer or other disposition of all or substantially all of its stock or assets. Subject to the express exclusions and limitations set forth in this Agreement, all remedies set forth in this Agreement are cumulative and in addition to and not in lieu of any other remedies of any party at law or in equity. Unless otherwise provided in this Agreement, no person or entity is intended to be a third party beneficiary of any provision of this Agreement. The parties represent and warrant that they have full authority to execute and deliver this Agreement and to perform their obligations under this Agreement, and that the person whose signature appears below is duly authorized to enter into this Agreement on behalf of the party whom they represent.

WebPT Business Associate Agreement

This Business Associate Agreement (hereinafter referred to as "BAA"), is hereby entered into between COVERED ENTITY ("Covered Entity") and WebPT, Inc., a Delaware corporation and its wholly owned subsidiaries ("Business Associate").

Whereas Business Associate performs functions, activities, or services for or on behalf of Covered Entity, and Business Associate creates, receives, maintains, or transmits Protected Health Information ("PHI"), including Electronic Protected Health Information ("EPHI"), in order to perform such functions, activities, or services (referred to collectively as the "Services");

Whereas the purpose of this BAA is to set forth the terms and conditions of PHI disclosure by Covered Entity to Business Associate; to set forth the terms and conditions of Business Associate's use and disclosure of PHI; and to ensure the confidentiality, integrity, and availability of EPHI that Business Associate creates, receives, maintains, or transmits on behalf of Covered Entity;

Whereas it is the intent of Covered Entity and Business Associate that this BAA will meet the requirements of the Health Insurance Portability and Accountability Act of 1996 ("HIPAA"), the American Recovery and Reinvestment Act of 2009, Public Law 111-5 ("ARRA"), the Privacy Rule, the Security Rule, 45 C.F.R. Parts 160 and 164, and the Final HIPAA Omnibus Rule.

Now, therefore, in consideration of the mutual promises set forth in this BAA and other good and valuable consideration (the sufficiency and receipt of which are hereby severally acknowledged), the parties agree as follows:

1. Definitions. Unless otherwise specified in this BAA, all capitalized terms not otherwise defined shall have the meanings established in Title 45, Parts 160 and 164, of the United States Code of Federal Regulations, as amended from time to time, and/or in the American Recovery and Reinvestment Act of 2009 ("ARRA"). For purposes of clarification, the following terms shall have the definitions set forth below:

1.1 "Privacy Standards" shall mean the Standards for Privacy of Individually Identifiable Health Information as set forth in 45 C.F.R. Parts 160 and 164.

1.2 "Security Standards" shall mean the Security Standards for the Protection of Electronic Protected Health Information as set forth in 45 C.F.R. Parts 160 and 164.

2. Business Associate Obligations. Business Associate may create, receive, maintain, or transmit from or on behalf of Covered Entity health information that is protected under applicable state and/or federal law, including, without limitation, PHI. Business Associate shall not Use or Disclose the PHI other than as permitted or required by this BAA or as Required by Law. Business Associate agrees not to Use or Disclose (or permit the Use or Disclosure of) PHI in a manner that would violate the requirements of the Privacy Standards or the Security Standards if the PHI were Used or Disclosed by Covered Entity in the same manner, except as provided in Sections 3 and 4 of this BAA. Business Associate agrees to mitigate, to the extent practicable, any harmful effect that is known to Business Associate of a use or disclosure of PHI by Business Associate in violation of the requirements of this BAA.

3. Use of PHI.

3.1 Administrative and Other Duties. Business Associate may Use PHI as necessary (i) for performing Services on behalf of Covered Entity, (ii) for the proper management and administration of the Business Associate, and (iii) for carrying out Business Associate's legal responsibilities, provided in each case that such Uses are permitted under federal and state law.

3.2 Data Aggregation. Business Associate may provide Data Aggregation services to Covered Entity as permitted by 45 CFR § 164.504(e)(2)(i)(B) and to use, disclose, and combine PHI created or received on behalf of Covered Entity by Business Associate pursuant to this Agreement with PHI received by Business Associate in its capacity as a business associate of other covered entities, to permit data analyses that relate to the Health Care Operations of the respective covered entities and/or Covered Entity.

3.3. De-Identified PHI. Business Associate may de-identify any and all PHI created or received by Business Associate under this Agreement. PHI that has been de-identified within the meaning of 45 CFR § 164.514(b) is no longer PHI and may be used or disclosed by Business Associate for any lawful purpose.

4. Disclosure of PHI. Business Associate may Disclose PHI as necessary to perform Services on behalf of Covered Entity. Additionally, Business Associate may Disclose PHI (i) for the proper management and administration of the Business Associate and (ii) to carry out Business Associate's legal responsibilities, provided that either (a) the Disclosure is Required by Law or (b) the Business Associate obtains reasonable assurances from the person to whom the information is Disclosed that the information will be held confidential and further Used and Disclosed only as Required by Law or for the purpose for which it was Disclosed to the person and such person agrees to immediately notify the Business Associate of any instances of which he or she is aware that the confidentiality of the information has been breached. Business Associate will determine the amount of PHI necessary to accomplish the intended purpose of disclosure and will make reasonable efforts to limit the receipt, use, and disclosure of PHI to the minimum necessary as required by the Privacy Laws.

5. Reports. Business Associate agrees to report to Covered Entity:

5.1 Any Breach of Unsecured PHI. Each report of a Breach of Unsecured PHI Discovered by Business Associate, unless delayed for law enforcement purposes, shall be made without delay and in no case later than thirty (30) calendar days after Discovery of the Breach. Such report shall include the identification of each Individual whose Unsecured PHI has been, or is reasonably believed by Business Associate to have been, accessed, acquired, Used, or Disclosed during such Breach and any other available information Covered Entity is required to include in notification to the affected Individual(s) under 45 C.F.R. § 164.404(c);

5.2 Any Security Incident within thirty (30) calendar days of the Business Associate becoming aware of such unauthorized Use or Disclosure.

6. Safeguards. Business Associate will use appropriate safeguards and comply, where applicable, with 45 C.F.R 164 Subpart C with respect to EPHI to prevent use or disclosure of the information other than as provided for by this BAA.

7. Subcontractors. Business Associate shall require Subcontractors that create, receive, maintain, or transmit PHI on behalf of Business Associate to agree in writing to the same restrictions and conditions that apply to the Business Associate under this BAA, including but not limited to, compliance with the applicable requirements of 45 C.F.R. Parts 160 and 164. Such agreement between Business Associate and the Subcontractor must be made in writing and must comply with the terms of this BAA and the requirements outlined in 45 C.F.R. § 164.504(e) and 164.314.

8. Individual Rights to Access and Amend.

8.1 Access. If Business Associate maintains a Designated Record Set on behalf of Covered Entity, Business Associate shall permit an Individual to inspect or copy PHI contained in that Designated Record Set about the Individual in accordance with the Privacy Standards set forth in 45 C.F.R. § 164.524, as it may be amended from time to time unless excepted or a basis for denial exists under 45 C.F.R. § 164.524, as determined by the Covered Entity. In the event that a Business Associate uses or maintains an Electronic Health Record on behalf of Covered Entity, then an Individual's right of access under 45 C.F.R. § 164.524 shall include the right to obtain a copy of the PHI in an electronic format—if the Individual chooses in a clear, conspicuous, and specific manner to direct the Business Associate to transmit such copy to any person designated by the Individual. Business Associate shall respond to any request from Covered Entity for access by an Individual within five (5) days of such request unless otherwise agreed to by Covered Entity. The information shall be provided in the form or format requested (if it is readily producible in such form or format) or in summary if the Individual has agreed in advance to accept the information in summary form. A reasonable, cost-based fee may be charged for copying PHI or providing a summary of PHI in accordance with 45 C.F.R. § 164.524(c)(4), provided that any such fee relating to a copy or summary of PHI is not greater than the labor, supplies, and postage costs incurred in response to the request for the copy or summary.

8.2 Amendment. Business Associate shall accommodate an Individual's right to amend PHI about the Individual in a Designated Record Set in accordance with the Privacy Standards set forth at 45 C.F.R. § 164.526, as it may be amended from time to time unless excepted or a basis for denial exists under 45 C.F.R. § 164.526, as determined by the Covered Entity. Covered Entity shall determine whether a denial of an amendment request is appropriate or an exception applies. Business Associate shall notify Covered Entity within five (5) days of receipt of any request for amendment by an Individual and shall make any amendment requested by Covered Entity within ten (10) days of such request. Business Associate shall have a process in place for handling requests for amendments and for appending such requests to the Designated Record Set when required by 45 C.F.R. § 164.526.

9. Accounting of Disclosures.

9.1 General Accounting Provisions. Business Associate shall make available to Covered Entity, in response to a request from an Individual, information required for an accounting of Disclosures of PHI with respect to the Individual, in accordance with 45 C.F.R. § 164.528, as it may be amended from time to time, unless an exception to such accounting exists under 45 C.F.R. § 164.528. Business Associate shall provide such information necessary to provide an accounting within thirty (30) days of Covered Entity's request.

9.2 Fees for an Accounting. Any accounting provided under Section 9.1 must be provided without cost to the Individual or to Covered Entity if it is the first accounting requested by an Individual within any twelve (12) month period. However, a reasonable, cost-based fee may be charged for subsequent accountings if Business Associate informs the Covered Entity and the Covered Entity informs the Individual in advance of the fee. At this time, the Individual must be afforded an opportunity to withdraw or modify the request.

10. Withdrawal of Consent or Authorization. If the Use or Disclosure of PHI in this BAA is based upon an Individual's specific consent or authorization for the Use or Disclosure of his or her PHI and (i) the Individual revokes such consent or authorization in writing, (ii) the effective date of such authorization has expired, or (iii) the consent or authorization is found to be defective in any manner that renders it invalid, Business Associate agrees, as long as it has notice of such revocation or invalidity, to cease the Use and Disclosure of any such Individual's PHI except to the extent it has relied on such Use or Disclosure or where an exception under the Privacy Standards expressly applies.

11. Records and Audit. Business Associate shall make available to Covered Entity and to the Secretary or her agents, its internal practices, books, and records relating to the Use and Disclosure of PHI received from, or created or received by, Business Associate on behalf of Covered Entity for the purpose of determining Covered Entity's compliance with the Privacy Standards and the Security

Standards in a timely manner designated by Covered Entity or the Secretary. Except to the extent prohibited by law, Business Associate agrees to notify Covered Entity immediately upon receipt of any and all requests served upon Business Associate by or on behalf of any and all government authorities relating to PHI received from, or created or received by, Business Associate on behalf of Covered Entity.

12. Notice of Privacy Practices. Covered Entity shall provide to Business Associate its Notice of Privacy Practices ("Notice"), including any amendments to the Notice. Business Associate agrees that it will abide by any limitations set forth in the Notice, as it may be amended from time to time, of which it has knowledge. An amended Notice shall not affect permitted Uses and Disclosures on which Business Associate has relied prior to receipt of such Notice.

13. Compliance with Law. To the extent Business Associate is to carry out Covered Entity's obligation under the Privacy Standards, Business Associate shall comply with the requirements of the Privacy Standards that apply to Covered Entity in the performance of such obligation.

14. Prohibition of Sale of PHI and use of PHI for Marketing. Business Associate will not directly or indirectly receive remuneration in exchange for any PHI, nor will it use or disclose PHI for fundraising and/or marketing purposes, except with the Covered Entity’s prior written consent and in accordance with applicable Privacy Laws.

15. Term and Termination.

15.1 This BAA shall remain in effect until all PHI received from, or created or received by, Business Associate on behalf of Covered Entity is returned to Covered Entity or destroyed in accordance with Section 15.4.

15.2 Upon either Party's knowledge of a material breach of this BAA by the other Party, the non-breaching Party must (i) 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 by the non-breaching Party, the non-breaching Party shall terminate this BAA and any underlying agreements that give rise to the business associate relationship described in this BAA ("Underlying Agreements"); or (ii) immediately terminate this BAA and any Underlying Agreements.

15.3 This BAA shall terminate simultaneously without additional notice upon the termination of any Underlying Agreement related to the Services or, if there is no Underlying Agreement, upon termination of the Services.

15.4 Upon termination of this BAA for any reason, Business Associate agrees either to return to Covered Entity or to destroy all PHI received from or created or received by Business Associate on behalf of Covered Entity that is in the possession or control of Business Associate or its Subcontractors. If it is not feasible to return or destroy the information, Business Associate shall continue to comply with the terms in this BAA with respect to such PHI and shall comply with other applicable state or federal law.

16. Miscellaneous

16.1 Notice. All notices, requests, demands, and other communications required or permitted to be given or made under this BAA shall be in writing, effective upon receipt or attempted delivery, and sent by (i) personal delivery; (ii) certified or registered United States mail, return receipt requested; or (iii) overnight delivery service with proof of delivery.

16.2 Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement. Business Associate’s obligations are to the Covered Entity only.

16.3 Successors and Assigns. This Agreement will inure to the benefit of, and be binding upon, the successors and assigns of the parties. However, this Agreement is not assignable by any party without the prior written consent of the other parties.

16.4 Counterparts. This Agreement may be executed in counterparts, by manual, electronic, or facsimile signature, each of which will be deemed an original and all of which together will constitute one and the same instrument.

16.5 Interpretation. Any ambiguity herein must be resolved in favor of a meaning that permits both Covered Entity and Business Associate to comply with Applicable Privacy Laws, consistent with the Terms of Services.

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