Adviise's mission is to bring efficiency to industries by creating a user-driven platform for purchasing, rating, and scheduling services.
Scope and Intent
If you are using Adviise on behalf of a company, medical practice or other legal entity, you are nevertheless individually bound by this Agreement even if your company has a separate agreement with us. If you do not want to register an account and become a Adviise User, do not conclude the Agreement, do NOT click join Adviise and do not access, view, download or otherwise use any Adviise webpage, information or services. By joining Adviise you acknowledge that you have read and understood the terms and conditions of this Agreement and that you agree to be bound by all of its provisions. By joining Adviise you also consent to use electronic signatures and acknowledge your registration as one.
Applicable laws and this Agreement
DOs and DON'Ts;
Complaints Regarding Content Posted on the Adviise website or mobile app; and
License and warranty for your submissions to Adviise
You must comply with all applicable laws, the Agreement, as may be amended from time to time with or without advance notice, and the policies and processes explained in the following sections:
You have control over the information you provide Adviise under this Agreement, and may request its deletion at any time, unless you have shared information or content with others and they have not deleted it, or it was copied or stored by other users. Additionally, you grant Adviise and its registered users a nonexclusive, irrevocable, worldwide, perpetual, unlimited, assignable, sublicensable, fully paid up and royalty-free right to copy, prepare derivative works of, improve, distribute, publish, remove, retain, add, process, analyze, use and commercialize, in any way now known or in the future discovered, any information you provide, directly or indirectly to Adviise, including, but not limited to, any registration data, user generated content, ideas, concepts, techniques or data to the services, you submit to Adviise, without any further consent, notice and/or compensation to you or to any third parties. Any information you submit to us is at your own risk of loss as noted in Sections 2 and 3 of this Agreement.
By providing information to us, you represent and warrant that you are entitled to and have the requisite rights to submit the information and that the information is accurate, not confidential, and not in violation of any contractual restrictions or other third party rights. Except as otherwise provided in this Agreement, Adviise will have no obligations with respect to the information you submit to us. Adviise hereby grants you a non-exclusive, non-transferable license to re-use or republish your own contributions made to the Adviise site in its original or derivative form for republication elsewhere, such as in journals or other professional publications. This license is restricted to your own contributions and does not grant you rights to republish the contributions or postings of other Adviise members. Adviise shall be free to use any ideas, concepts, know-how or techniques contained in such information for any purpose whatsoever including, but not limited to, developing, manufacturing, and marketing products and services incorporating such information. It is your responsibility to keep your Adviise profile information accurate and updated.
To be eligible to use the Service, you must meet the following criteria and represent and warrant that you: (1) are 18 years of age or older; (2) a certified provider within the National Plan and Provider Enumeration System (3) are not currently restricted from the Services, or not otherwise prohibited from having a Adviise account, (4) are not a competitor of Adviise or are not using the Services for reasons that are in competition with Adviise; (5) will only maintain one Adviise account at any given time; (6) have full power and authority to enter into this Agreement and doing so will not violate any other agreement to which you are a party; (7) will not violate any rights of Adviise, including intellectual property rights such as copyright or trademark rights; and (8) agree to provide at your cost all equipment, software, and internet access necessary to use the Services.
You agree to: (1) Keep your password secure and confidential; (2) not permit others to use your login credentials to access your account; (3) refrain from using other Users' accounts; (4) refrain from selling, trading, or otherwise transferring your Adviise account or any information and content of another Adviise user to another party; and (5) refrain from charging anyone for access to any portion of Adviise, or any information therein. Further, you are responsible for anything that happens through your account until you close down your account or prove that your account security was compromised due to no fault of your own.
To close your account, please contact How@Adviise.com.
You indemnify us and hold us harmless for all damages, losses and costs (including, but not limited to, reasonable attorneys' fees and costs) related to all third party claims, charges, and investigations, caused by (1) your failure to comply with this Agreement, including, without limitation, your submission of content that violates third party rights or applicable laws, (2) any content you submit to the Services, and (3) any activity in which you engage on or through Adviise.
Notify Us of Acts Contrary to the Agreement
If you believe that you are entitled or obligated to act contrary to this Agreement under any mandatory law, you agree to provide us with detailed and substantiated explanation of your reasons in writing at least 30 days before you act contrary to this Agreement, to allow us to assess whether we may, at our sole discretion, provide an alternative remedy for the situation, though we are under no obligation to do so.
Notifications and Service Messages
For purposes of service messages and notices about the Services to you, Adviise may place a banner notice across its pages to alert you to certain changes such as modifications to this Agreement. Alternatively, notice may consist of an email from Adviise to an email address associated with your account, even if we have other contact information. You also agree that Adviise may communicate with you through your Adviise account or through other means including email, mobile number, telephone, or delivery services including the postal service about your Adviise account or services associated with Adviise. You acknowledge and agree that we shall have no liability associated with or arising from your failure to maintain accurate contact or other information, including, but not limited to, your failure to receive critical information about the Service.
User-To-User Communication and Sharing
Please note that ideas and information you share may be seen and used by other Users, and Adviise cannot guarantee that other Users will not use the ideas and information that you share on Adviise. Therefore, if you have an idea or information that you would like to keep confidential and/or don't want others to use, or that is subject to third party rights that may be infringed by your sharing it, do not share it on Adviise. ADVIISE IS NOT RESPONSIBLE FOR A USER'S MISUSE OR MISAPPROPRIATION OF ANY CONTENT OR INFORMATION YOU POST, UPLOAD, OR TRANSMIT WITHIN ADVIISE.
Contributions to Adviise
By submitting ideas, suggestions, documents, and/or proposals ("Contributions") to Adviise through its suggestion or feedback webpages, you acknowledge and agree that: (a) your Contributions do not contain confidential proprietary or protected health information; (b) Adviise is not under any obligation of confidentiality, express or implied, with respect to the Contributions; Adviise shall be entitled to use or disclose (or choose not to use or disclose) such Contributions for any purpose, in any way, in any media worldwide; (d) Adviise may have something similar to the Contributions already under consideration or in development; (e) you irrevocably assign to Adviise all rights to your Contributions; and (f) you are not entitled to any compensation or reimbursement of any kind from Adviise under any circumstances.
The information and content posted on Adviise is gathered from publicly available data or submitted by Users, and Adviise cannot guarantee the accuracy of such information. Use of Adviise by you is conditioned upon your agreement that all of the information and content, including profile and insurance data, is for informational purposes only and should not be relied upon, and that as User, you agree to hold harmless Adviise and other Users and data suppliers for your use or reliance on such data.
On the condition that you comply with all your obligations under this Agreement, including, but not limited to, the Do's and Don'ts listed in Section 12, we grant you a limited, revocable, nonexclusive, non-assignable, non-sublicensable license and right to access the Services, through a generally available web browser, mobile device or application (but not through scraping, spidering, crawling or other technology or software used to access data without the express written consent of Adviise or its Users), view information and use the Services that we provide on Adviise webpages and in accordance with this Agreement. Any other use of Adviise contrary to our mission and purpose (such as seeking to connect to someone you do not know or to use information gathered from Adviise commercially in each case unless expressly authorized by Adviise) is strictly prohibited and a violation of this Agreement. We reserve all rights not expressly granted in this Agreement, including, without limitation, title, ownership, intellectual property rights, and all other rights and interest in Adviise and all related items, including any and all copies made of the Adviise website.
OUR RIGHTS AND OBLIGATIONS
For as long as Adviise continues to offer the Services, Adviise shall provide and seek to update, improve and expand the Services. As a result, we allow you to access Adviise as it may exist and be available on any given day and have no other obligations, except as expressly stated in this Agreement. We may modify, replace, refuse access to, suspend or discontinue Adviise, partially or entirely, or change and modify prices for all or part of the Services for you or for all our users in our sole discretion. All of these changes shall be effective upon their posting on our site or by direct communication to you unless otherwise noted. Adviise further reserves the right to withhold, remove and or discard any content available as part of your account, with or without notice if deemed by Adviise to be contrary to this Agreement. For avoidance of doubt, Adviise has no obligation to store, maintain or provide you a copy of any content that you or other Users provide when using the Services.
Third Party Sites
Adviise is not responsible for and does not endorse any features, content, advertising, products or other materials on or available from Third Party Sites. Accordingly, if you decide to access Third Party Sites, you do so at your own risk.
Disclosure of User Information
You acknowledge, consent and agree that we may access, preserve, and disclose your registration and any other information you provide if required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary in our opinion to: (1) comply with legal process, including, but not limited to, civil and criminal subpoenas, court orders or other compulsory disclosures; (2) enforce this Agreement; (3) respond to claims of a violation of the rights of third parties, whether or not the third party is a User, individual, or government agency; (4) respond to customer service inquiries; or (5) protect the rights, property, or personal safety of Adviise, our Users or the public.
Connections and Interactions with Other Users
You are solely responsible for your interactions with other Users. Adviise reserves the right, but has no obligation, to monitor disputes between you and other users and to restrict, suspend, or close your account if Adviise determines, in our sole discretion, that doing so is necessary to enforce this Agreement.
You agree that from time to time Adviise may invite or otherwise make you aware of certain educational, promotional or financial opportunities relating to Your Communications and profile.
Do not rely on Adviise, any information therein, or its continuation. We provide the platform for Adviise and all information and services on an "as is" and "as available" basis. Adviise does not control or vet User generated content for accuracy. We do not provide any express warranties or representations.
To the fullest extent permissible under applicable law, we disclaim any and all implied warranties and representations, including, without limitation, any warranties of merchantability, fitness for a particular purpose, title, accuracy of data, and noninfringement. If you are dissatisfied or harmed by Adviise or anything related to Adviise, you may close your Adviise account and terminate this agreement in accordance with section 7 ("termination") and such termination shall be your sole and exclusive remedy.
We neither warrant nor represent that your use of our service will not infringe the rights of third parties. Any material, service, or technology described or used on the website may be subject to intellectual property rights owned by third parties who have licensed such material, service, or technology to us.
Adviise does not guarantee that the services it provides will function without interruption or errors in functioning. In particular, the operation of the services may be interrupted due to maintenance, updates, or system or network failures. Adviise disclaims all liability for damages caused by any such interruption or errors in functioning. Furthermore, Adviise disclaims all liability for any malfunctioning, impossibility of access, or poor use conditions of the Adviise site due to inappropriate equipment, disturbances related to internet service providers, to the saturation of the internet network, and for any other reason.
Adviise reminds you that the Service is not meant to serve as a substitute for your own professional medical judgment. You should always exercise your professional judgment in evaluating your patients, and should carefully consider any treatment plan. Adviise encourages you to confirm the information made available or otherwise obtained through the Service with other reliable sources before undertaking any treatment. We also encourage you to review from time to time the American Medical Association's Policy for Professionalism in the Use of Social Media at http://www.ama-assn.org/ama/pub/meeting/professionalism-social-media.shtml.
BUSINESS ASSOCIATE AGREEMENT
The Health Insurance Portability and Accountability Act of 1996 generally requires that covered entities and business associates enter into contracts to ensure that the business associates will appropriately safeguard protected health information. A business associate contract serves to clarify and limit, as appropriate, the permissible uses and disclosures of protected health information by the business associate, based on the relationship between the parties and the activities or services being performed by the business associate. You and Adviise agree to the terms of the business associates agreement provided in Exhibit A relating to any communications of electronic protected health information.
LIMITATION OF LIABILITY
Neither Adviise nor any employees, shareholders, representatives or directors ("Adviise Affiliates") shall be cumulatively liable for (a) any damages in excess of U.S. $10, or (b) any special, incidental, indirect, punitive or consequential damages or loss of use, profit, revenue or data to you or any third person arising from your use of the Service, any platform applications or any of the content or other materials on, accessed through or downloaded from Adviise. This limitation of liability is part of the basis of the bargain between the parties and without it the terms and prices charged would be different. This limitation of liability shall:
Apply regardless of whether (1) you base your claim on contract, tort, statute or any other legal theory, (2) we knew or should have known about the possibility of such damages, or (3) the limited remedies provided in this section fail of their essential purpose; and
Not apply to any damage that Adviise may cause you intentionally or knowingly in violation of this Agreement or applicable law, or as otherwise mandated by applicable law that cannot be disclaimed from in this Agreement.
Not apply if you have entered into a separate agreement to purchase Premium Services with a separate Limitation of Liability provision that supersedes this section in relation to those Premium Services.
Mutual Rights of Termination
You may terminate this Agreement, for any or no reason, at any time, with notice to Adviise pursuant to Section 11.B. This notice will be effective upon Adviise processing your notice. Adviise may terminate the Agreement and your account for any reason or no reason, at any time, with or without notice. This cancellation shall be effective immediately or as may be specified in the notice. Termination of your Adviise account includes disabling your access to Adviise and may also bar you from any future use of Adviise.
Misuse of the Services
Adviise may restrict, suspend or terminate the account of any User who abuses or misuses the Services or offers competitive services. Misuse of the Services commercially without Adviise's authorization, infringing any intellectual property rights, violating any of the Do's and Don'ts listed in Section 12, or any other behavior that Adviise, in its sole discretion, deems contrary to its purpose. In addition, and without limiting the foregoing, Adviise has adopted a policy of terminating accounts of Users who, in Adviise's sole discretion, are deemed to be repeat infringers under the United States Copyright Act.
Effect of Termination
Upon the termination of your Adviise account, you lose access to the Services. The terms of this Agreement shall survive any termination, except Sections 3 ("Your Rights") and 4.a-b, and d ("Our Rights and Obligations") hereof.
Law and Forum for Legal Disputes
This Agreement or any claim, cause of action or dispute ("claim") arising out of or related to this Agreement shall be governed by the laws of the State of Texas regardless of your country of origin or where you access Adviise, and notwithstanding of any conflicts of law principles and the United Nations Convention for the International Sale of Goods. You and Adviise agree that all claims arising out of or related to this Agreement must be resolved exclusively by a state or federal court located in Texas, except as otherwise agreed by the parties or as described in the Arbitration Option paragraph below. You and Adviise agree to submit to the personal jurisdiction of the courts located within Texas for the purpose of litigating all such claims. Notwithstanding the above, you agree that Adviise shall still be allowed to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.
For any claim (excluding claims for injunctive or other equitable relief) where the total amount of the award sought is less than $10,000, the party requesting relief may elect to resolve the dispute in a cost effective manner through binding non-appearance-based arbitration. In the event a party elects arbitration, they shall initiate such arbitration through an established alternative dispute resolution ("ADR") provider mutually agreed upon by the parties. The ADR provider and the parties must comply with the following rules: (a) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration; (b) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and any judgment on the award rendered by the arbitrator shall be final and may be entered in any court of competent jurisdiction.
If any provision of this Agreement is found by a court of competent jurisdiction or arbitrator to be illegal, void, or unenforceable, the unenforceable provision will be modified so as to render it enforceable and effective to the maximum extent possible in order to effect the intention of the provision; and if a court or arbitrator finds the modified provision invalid, illegal, void or unenforceable, the validity, legality and enforceability of the remaining provisions of this Agreement will not be affected in any way.
Notices and Service of Process
Additionally, Adviise accepts service of process at this address. Any notices that you provide without compliance with this section on Notices shall have no legal effect.
You agree that this Agreement constitutes the entire, complete and exclusive agreement between you and us regarding the Services and supersedes all prior agreements and understandings, whether written or oral, or whether established by custom, practice, policy or precedent, with respect to the subject matter of this Agreement. You also may be subject to additional terms and conditions that may apply when you use or purchase certain other Adviise services, third-party content or third party software.
Initial Posting and Amendments to This Agreement
No Informal Waivers, Agreements or Representations
Our failure to act with respect to a breach of this Agreement by you or others does not waive our right to act with respect to that breach or subsequent similar or other breaches. Except as expressly and specifically contemplated by the Agreement, no representations, statements, consents, waivers or other acts or omissions by any Adviise Affiliate shall be deemed legally binding on any Adviise Affiliate, unless documented in a physical writing hand signed by a duly appointed officer of Adviise.
No Injunctive Relief
In no event shall you seek or be entitled to rescission, injunctive or other equitable relief, or to enjoin or restrain the operation of the Service, exploitation of any advertising or other materials issued in connection therewith, or exploitation of the Services or any content or other material used or displayed through the Services.
Assignment and Delegation
You may not assign or delegate any rights or obligations under the Agreement. Any purported assignment and delegation shall be ineffective. We may freely assign or delegate all rights and obligations under the Agreement, fully or partially without notice to you. We may also substitute, by way of unilateral novation, effective upon notice to you, Adviise for any third party that assumes our rights and obligations under this Agreement.
Potential Other Rights and Obligations
You may have rights or obligations under local law other than those enumerated here if you are located outside the United States.
ADVIISE USER "DOS" and "DON'TS"
As a condition to access Adviise, you agree to this User Agreement and to strictly observe the following DOs and DON'Ts:
Do Undertake the Following:
Comply with all applicable laws, including, without limitation, state and federal patient privacy laws, intellectual property laws, export control laws, tax laws, and regulatory requirements;
Provide accurate information to us and update it as necessary;
Review and comply with notices sent by Adviise concerning the Services; and
Disclose any potential conflicts-of-interest, such as consultant fees (e.g. promoting "off-label" use) as appropriate; and
Use the Services in a professional manner.
Don't Undertake the Following:
Act dishonestly or unprofessionally by engaging in unprofessional behavior by posting inappropriate, inaccurate, or objectionable content to Adviise;
Publish inaccurate information in the designated fields on the profile form (e.g., do not include a link or an email address in the specialty field). Please also protect sensitive personal information such as your email address, phone number, street address, or other information that is confidential in nature;
Harass, abuse or harm another person, including sending unwelcomed or unauthorized communications to others using Adviise;
Upload a profile image that is not your likeness or a head-shot photo;
Use or attempt to use another's account without authorization from the user, or create a false identity on Adviise;
Upload, post, email, transmit or otherwise make available or initiate any content that:
Falsely states, impersonates or otherwise misrepresents your identity, including but not limited to misrepresenting your current or previous positions and qualifications, or your affiliations with a person or entity, past or present;
Is unlawful, libelous, abusive, obscene, discriminatory or otherwise objectionable;
Adds to a content field content that is not intended for such field (i.e. submitting a telephone number in the specialty field);
Includes information that you do not have the right to disclose or make available under any law or under contractual or fiduciary relationships (such as private patient information, insider information, or proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
Infringes upon patents, trademarks, trade secrets, copyrights or other proprietary rights;
Includes any unauthorized advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of unauthorized communication. This prohibition includes but is not limited to (a) using Adviise invitations to send messages to people who don't know you or who are unlikely to recognize you as a known contact; (b) using Adviise to connect to people who don't know you and then sending unsolicited promotional messages to those direct connections without their permission; and (c) sending messages to distribution lists, newsgroup aliases, or group aliases;
Contains software viruses, worms, or any other computer code, files or programs that interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment of Adviise or any User of Adviise;
Forges headers or otherwise manipulate identifiers in order to disguise the origin of any communication transmitted through the Services; and/or
Duplicate, license, sublicense, publish, broadcast, transmit, distribute, perform, display, sell, rebrand, or otherwise transfer information found on Adviise (excluding content posted by you) except as permitted in this Agreement or as expressly authorized by Adviise;
Reverse engineer, decompile, disassemble, decipher or otherwise attempt to derive the source code for any underlying intellectual property used to provide the Services, or any part thereof
Utilize or copy information, content or any data you view on and/or obtain from Adviise to provide any service that is competitive, in Adviise's sole discretion, with Adviise;
Imply or state, directly or indirectly, that you are affiliated with or endorsed by Adviise unless you have entered into a written agreement with Adviise;
Adapt, modify or create derivative works based on Adviise or technology underlying the Services, or other Users' content, in whole or part;
Rent, lease, loan, trade, sell/re-sell access to Adviise or any information therein, or the equivalent, in whole or part;
Sell, sponsor, or otherwise monetize content, phone lists, or any other service or functionality of Adviise, without the express written permission of Adviise;
Deep-link to the Site for any purpose, (i.e. including a link to a Adviise web page other than Adviise's home page) unless expressly authorized in writing by Adviise or for the purpose of promoting your profile or a Group on Adviise;
Remove any copyright, trademark or other proprietary rights notices contained in or on Adviise, including those of both Adviise and any of its licensors;
Collect, use, copy, or transfer any information, including, but not limited to, personally identifiable information obtained from Adviise except as expressly permitted in this Agreement or as the owner of such information may expressly permit;
Share information of non-Users without their express consent;
Infringe or use Adviise's brand, logos and/or trademarks, including, without limitation, using the word "Adviise" in any business name, email, or URL or including Adviise's trademarks and logos or as expressly permitted by Adviise;
Use manual or automated software, devices, scripts robots, other means or processes to access, "scrape," "crawl" or "spider" any web pages or other services contained in the site, unless explicitly permitted by Adviise;
Use bots or other automated methods to access Adviise, add or download contacts, send or redirect messages, or perform other activities through Adviise, unless explicitly permitted by Adviise;
Access, via automated or manual means or processes, Adviise for purposes of monitoring Adviise's availability, performance or functionality for any competitive purpose;
Engage in "framing," "mirroring," or otherwise simulating the appearance or function of Adviise's website;
Attempt to or actually access Adviise by any means other than through the interfaces provided by Adviise such as its mobile application or by navigating to http://www.Adviise.nyc using a web browser. This prohibition includes accessing or attempting to access Adviise using any third-party service, including software-as-a-service platforms that aggregate access to multiple services, including Adviise;
Attempt to or actually override any security component included in or underlying Adviise;
Engage in any action that directly or indirectly interferes with the proper working of or places an unreasonable load on Adviise's infrastructure, including, but not limited to, sending unsolicited communications to other Users or Adviise personnel, attempting to gain unauthorized access to Adviise, or transmitting or activating computer viruses through or on Adviise;
Interfere with or disrupt or game Adviise or the Services, including, but not limited to, any servers or networks connected to Adviise, in particular Adviise's search algorithms.
Any attempt to obtain unauthorized access, interfere with or to exceed authorized access to Adviise shall be considered a trespass and computer fraud and abuse, punishable under state and federal laws. Adviise hereby notifies you that any or all communications with this website can and will be monitored, captured, recorded, and transmitted to the authorities as deemed necessary by Adviise in its sole discretion and without further notice.
COMPLAINTS REGARDING CONTENT POSTED ON THE ADVIISE WEBSITE
If you believe any materials accessible on or from the Services infringe your copyright, you may request removal of those materials (or access thereto) from the Services by contacting Adviise at the following email address:
email@example.com and providing the following information:
Identification of the copyrighted work that you believe to be infringed. Please describe the work, and where possible include a copy or the location (e.g., URL) of an authorized version of the work.
Identification of the material that you believe to be infringing and its location. Please describe the material, and provide us with its URL or any other pertinent information that will allow us to locate the material.
Your name, address, telephone number and (if available) e-mail address.
A statement that you have a good faith belief that the complained of use of the materials is not authorized by the copyright owner, its agent, or the law.
A statement that the information that you have supplied is accurate, and indicating that "under penalty of perjury," you are the copyright owner or are authorized to act on the copyright owner's behalf.
A signature or the electronic equivalent from the copyright holder or authorized representative.
In an effort to protect the rights of copyright owners, we maintain a policy for the termination, in appropriate circumstances, of subscribers and account holders who are repeat infringers.
EXHIBIT A: HIPAA BUSINESS ASSOCIATE AGREEMENT BETWEEN ADVIISE AND PROVIDER
THIS HIPAA BUSINESS ASSOCIATE AGREEMENT (the "BA Agreement") is entered into as of the date that the Adviise User (referred to in this BA Agreement as “Provider” electronically agrees to the Online Terms and Conditions of Use governing the Adviise service. This BA Agreement is entered into between the Provider ("Covered Entity") and Adviise, Inc. ("Business Associate").
WHEREAS, Congress enacted the Health Insurance Portability and Accountability Act of 1996 ("HIPAA"), which protects the confidentiality of health information;
WHEREAS, pursuant to HIPAA, the United States Department of Health and Human Services ("HHS") promulgated Privacy Standards and Security Standards, each as defined below, governing confidential health information;
WHEREAS, Business Associate performs services through its provision of the Adviise Services (the "Service") on behalf of Covered Entity;
WHEREAS, Business Associate's provision of the Service requires Covered Entity to provide Business Associate with access to confidential health information; and
WHEREAS, in order to comply with the business associate requirements of HIPAA and its implementing regulations, Business Associate and Covered Entity must enter into an agreement that governs the uses and disclosures of such confidential health information by the Business Associate.
NOW, THEREFORE, in consideration of the foregoing recitals, the mutual promises and covenants set forth herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
The following terms used in this BA Agreement shall have the same meaning as those terms in the HIPAA Rules: Data Aggregation, Designated Record Set, Disclosure, Health Care Operations, Minimum Necessary, Notice of Privacy Practices, Security Incident, Subcontractor, and Use.
For purposes of this BA Agreement, the following terms shall have the following meanings:
"Breach" when capitalized, "Breach" shall have the meaning set forth in 45 C.F.R. 164.402 (including all of its subsections); with respect to all other uses of the word "breach" in this BA Agreement, the word shall have its ordinary contract meaning.
“Business Associate” shall generally have the same meaning as the term “business associate” at 45 C.F.R. § 160.103.
“Covered Entity” shall generally have the same meaning as the term “covered entity” at 45 C.F.R. § 160.103.
"Electronic Media" shall have the meaning set forth in 45 C.F.R. 160.103, which is defined as electronic storage media (including memory devices in computers, hard drives, any removable or transportable digital memory medium, such as magnetic tape or disk, optical disk or digital memory card) or transmission media used to exchange information already in electronic storage media (including the Internet, extranet (using Internet technology to link a business with information only accessible to collaborating parties), leased lines, dial-up lines, private networks, and those transmissions that are physically moved from one location to another using magnetic tape, disk, or compact disk media). Certain transmissions, including of paper, via facsimile, and of voice, via telephone, are not considered to be transmissions via electronic media, because the information being exchanged does not exist in electronic form before the transmission.
"Electronic Protected Health Information" or "EPHI" shall mean Individually Identifiable Health Information that is (i) transmitted by Electronic Media or (ii) maintained in any medium constituting Electronic Media. For instance, EPHI includes information contained in a patient's electronic medical records and billing records. "EPHI" shall not include (i) education records covered by the Family Educational Right and Privacy Act, as amended, 20 U.S.C. 1232g; (ii) records described in 20 U.S.C. 1232g(a)(4)(B)(iv); and (iii) employment records held by a Covered Entity in its role as employer.
“HIPAA Rules” shall mean the Privacy, Security, Breach Notification, and Enforcement Rules at 45 C.F.R. Part 160 and Part 164.
"HITECH Act" shall mean the Health Information Technology for Economic and Clinical Health Act, found in Title XIII of the American Recovery and Reinvestment Act of 2009, effective February 17, 2009.
"Individual" shall have the same meaning as set forth in 45 C.F.R. 160.103, defined as the person who is the subject of PHI, and shall include a personal representative in accordance with 45 C.F.R. 164.502(g).
"Individually Identifiable Health Information" shall mean information that is a subset of health information, including demographic information collected from an individual, and
is created or received by a health care provider, health plan, employer, or health care clearinghouse; and
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; and (a) identifies the individual, or (b) with respect to which there is a reasonable basis to believe the information can be used to identify the individual.
"Privacy Standards" shall mean the Standards for Privacy of Individually Identifiable Health Information, 45 C.F.R. Parts 160 and 164, Subparts A, D, and E, as currently in effect.
"Protected Health Information" or "PHI" shall mean Individually Identifiable Health Information that is (i) transmitted by Electronic Media, (ii) maintained in any medium constituting Electronic Media; or (iii) transmitted or maintained in any other form or medium. For instance, PHI includes information contained in a patient's medical records and billing records. "Protected Health Information" shall not include (i) education records covered by the Family Educational Right and Privacy Act, as amended, 20 U.S.C. 1232g; (ii) records described in 20 U.S.C. 1232g(a)(4)(B)(iv); and (iii) employment records held by a Covered Entity in its role as employer.
"Required by Law" shall have the same meaning as the term "Required by law" in 45 C.F.R. 164.103.
"Secretary" shall mean the Secretary of the U.S. Department of Health and Human Services or any office or person within the U.S. Department of Health and Human Services to which/whom the Secretary has delegated his or her authority to administer the Privacy Standards and the Security Standards, such as the Director of the Office for Civil Rights.
"Security Standards" shall mean Security Standards for the Protection of Electronic Protected Health Information, 45 C.F.R. Part 160 and Part 164, Subparts A and C.
"Subsequent Business Associate" shall mean any agent, including subcontractors, of Business Associate to whom Business Associate discloses Protected Health Information or Electronic Protected Health Information.
"Unsecured Protected Health Information" shall have the same meaning as the term "unsecured protected health information" in 45 C.F.R. 164.402, limited to the information created or received by Business Associate from or on behalf of Covered Entity.
All references to "days" in this BA Agreement shall mean calendar days. Capitalized terms used not defined herein shall have the meanings ascribed to them in the Privacy Standards or the Security Standards.
2. Business Associate Obligations. Business Associate acknowledges and agrees that it is considered a "business associate" as defined by HIPAA and by regulations promulgated thereunder. As a business associate of Covered Entity, Business Associate shall comply with the following terms of this BA Agreement, as required pursuant to 45 C.F.R. § 164.504.
2.1 Permitted Uses and Disclosures. Business Associate agrees that it shall use and disclose Protected Health Information received from Covered Entity for the purposes of providing the Service services, as otherwise permitted under this BA Agreement, or as Required by Law. Business Associate is authorized to use Protected Health Information to deidentify the information in accordance with 45 C.F.R. § 164.514(a)-(c). Business Associate agrees to follow guidance issued by the Secretary regarding what constitutes "minimum necessary" with respect to the use or disclosure of PHI and EPHI. Until such time that such guidance is issued, Business Associate shall limit its use or disclosure of PHI and EPHI, to the extent practicable, to the limited data set (as defined in 45 C.F.R. 164.514(e)(2)), or to the minimum necessary to accomplish the intended purpose of such use, disclosure or request, respectively.
2.2 Disclosures to Subsequent Business Associates. Business Associate shall not disclose any PHI to any Subsequent Business Associate, unless and until Business Associate and the Subsequent Business Associate have entered into an agreement containing the same terms and conditions as set forth in this BA Agreement.
2.2.1 Business Associate, in accordance with 45 C.F.R. § 164.502(e)(1)(ii) and § 164.308(b)(2), if applicable, shall ensure that any subcontractors that create, receive, maintain, or transmit Protected Health Information on behalf of Business Associate agree to the same restrictions, conditions, and requirements that apply to Business Associate with respect to such information.
2.3 Reporting Violations of Law. Consistent with the requirements of 45 C.F.R. 164.502(j)(1), Business Associate may disclose Protected Health Information to report violations of law to appropriate Federal and State authorities.
2.4 Appropriate Safeguards. Business Associate shall implement appropriate administrative, technical, and physical safeguards to prevent any use or disclosure of Protected Health Information not authorized by this BA Agreement. Specifically, Business Associate agrees to comply with the requirements of 45 C.F.R. 164.308, 164.310,164.312 and 164.316 to the same extent such requirements apply to Covered Entity.
2.5 Reporting of Illegal, Unauthorized or Improper Uses or Disclosures and Remedial Actions. Business Associate shall report to Covered Entity any illegal, unauthorized, or improper use or disclosure of Protected Health Information, Security Incident or any Breach (collectively, "Known Misuse") by it or a Subsequent Business Associate without unreasonable delay and within ten (10) business days of obtaining knowledge of such Known Misuse. Additionally, if the Known Misuse is a Breach of Unsecured Protected Health Information, Business Associate shall comply with the requirements of 45 C.F.R. 164.410. Business Associate shall take, or, in the event that the acts or omissions of a Subsequent Business Associate gave rise to the Known Misuse, shall require a Subsequent Business Associate to take, commercially reasonable actions to mitigate the negative impact of any Known Misuse and adopt additional or improve existing safeguards to prevent recurrence.
2.6 Internal Practices, Books and Records. Business Associate shall make its internal practices, books and records relating to the use and disclosure of Protected Health Information received from, or created or received by Business Associate on behalf of Covered Entity available to the Secretary, or their designees, for purposes of determining and facilitating Business Associate's and Covered Entity's compliance with the Privacy Standards and Security Standards.
2.7 Access to Protected Health Information.
2.7.1 Within ten (10) days of a request by Covered Entity, Business Associate shall provide Protected Health Information in its possession or in the possession of a Subsequent Business Associate to Covered Entity in order for Covered Entity to comply with its obligations under 45 C.F.R. 164.524 to provide Individuals with access to their Protected Health Information.
2.7.2 Business Associate shall notify Covered Entity within five (5) days of receiving a request from an Individual to access Protected Health Information. Following receipt of such notice from Business Associate, Covered Entity shall handle such request from the Individual.
2.8 Amendments to Protected Health Information.
2.8.1 Within ten (10) days of a request by Covered Entity, Business Associate shall provide Protected Health Information in its possession or in the possession of a Subsequent Business Associate to Covered Entity in order for Covered Entity to comply with its obligations under 45 C.F.R. 164.526 to provide Individuals the right to amend their Protected Health Information.
2.8.2 Business Associate shall notify Covered Entity within five (5) days of receiving a request from an Individual to amend Protected Health Information. Following receipt of such notice from Business Associate, Covered Entity shall handle such request from the Individual.
2.9 Accounting of Disclosures.
2.9.1 Within twenty (20) days of a request by Covered Entity, Business Associate shall provide Covered Entity with an accounting of all disclosures of Protected Health Information, other than disclosures excepted from the Privacy Standards accounting requirement under 45 C.F.R. 164.528(a)(1)(i)-(ix), made by Business Associate or by a Subsequent Business Associate in the previous six (6) years (but in no event prior to April 14, 2003) in order for Covered Entity to comply with its obligations under 45 C.F.R. 164.528 to provide Individuals with an accounting of disclosures of their Protected Health Information.
2.9.2 Such accounting shall include, with respect to each disclosure: the date of the disclosure; the name (and address, if known) of the entity or person receiving the Protected Health Information; a description of the Protected Health Information disclosed; a statement of the purpose of the disclosure; and any other information the Secretary may require under 45 C.F.R. 164.528 (collectively, "Disclosure Information").
2.9.3 Notwithstanding Section 2.11.2, for repetitive disclosures of Protected Health Information that Business Associate makes for a single purpose to the same person or entity, Business Associate may record: (a) the Disclosure Information for the first of these repetitive disclosures; (b) the frequency, periodicity or number of these repetitive disclosures made during the accounting period; and the date of the last of these repetitive disclosures.
2.9.4 Business Associate shall notify Covered Entity within ten (10) days of receiving a request from an Individual for an accounting of disclosures of Protected Health Information. Following receipt of such notice from Business Associate, Covered Entity shall handle such request from the Individual.
2.9.5 In accordance with the HITECH Act, the parties acknowledge that the Secretary shall promulgate regulations regarding the right of Individuals to receive an accounting of disclosures made for treatment, payment and healthcare operations during the previous three (3) years if such disclosures are made through the use of an electronic health record. The parties agree to comply with such regulations promulgated by the Secretary as of the effective date of those regulations.
2.10 Subpoenas, Court Orders, and Governmental Requests. If Business Associate receives a court order, subpoena, or governmental request for documents or other information containing Protected Health Information, Business Associate will use reasonable efforts to notify Covered Entity of the receipt of the request within ten (10) business days to provide Covered Entity an opportunity to respond. Business Associate may comply with such order, subpoena, or request as Required by Law or permitted by law.
2.11 Remuneration in Exchange for PHI. Except as permitted by the HITECH Act or regulations promulgated by the Secretary in accordance with the HITECH Act, and as of the effective date of such regulations, Business Associate shall not directly or indirectly receive remuneration in exchange for PHI unless Covered Entity notifies Business Associate that it obtained a valid authorization from the Individual specifying that the Individual's PHI may be exchanged for remuneration by the entity receiving such Individual's PHI.
3. Covered Entity Obligations.
3.1 Notice of Privacy Practices. Covered Entity shall notify Business Associate of limitation(s) in its notice of privacy practices, to the extent such limitation affects Business Associate's permitted Uses or Disclosures.
3.2 Individual Permission. Covered Entity shall notify Business Associate of changes in, revocation of, permission by an Individual to use or disclose PHI, to the extent such changes affect Business Associate's permitted Uses or Disclosures.
3.3 Restrictions. Covered Entity shall notify Business Associate of restriction(s) in the Use or Disclosure of PHI that Covered Entity has agreed to, to the extent such restriction affects Business Associate's permitted Uses or Disclosures.
3.4 Consents and Authorizations. Covered Entity represents and warrants that any and all consents, authorizations, or other permissions necessary under the Privacy Standards or other applicable law (including state law) to transmit information through the Service and/or under this BA Agreement have been properly secured.
3.5 Marketing. Covered Entity represents and warrants that it has obtained any and all authorizations from Individual for any use or disclosure of PHI for marketing, unless the marketing communication is made without any form of remuneration (i) to describe medical services or products provided by either party; (ii) for treatment of the Individual; or (iii) for case management or care coordination for the Individual or to direct or recommend alternate treatments, therapies, providers or settings.
3.6 Permissible Requests by Covered Entity. Covered Entity shall not request Business Associate to use or disclose Protected Health Information in any manner that would not be permissible under Subpart E of 45 C.F.R. Part 164.
4. Term and Termination.
4.1 Term. The Term of this BA Agreement shall commence on and this BA Agreement shall be effective as of the date on which Covered Entity electronically registers for the Service, and shall continue in effect for as long as Covered Entity is registered for the Service.
4.2 Termination for Cause. In the event either party determines that the other has engaged in a pattern of activity or practice that constitutes a material breach of a term of this BA Agreement and such violation continues for thirty (30) days after written notice of such breach has been provided, the party claiming a breach shall have the right to terminate Covered Entity's participation on the Service or, if termination is not feasible, to report the breach to the Secretary.
4.3 Effect of Termination.
4.3.1 Return or Destruction of Protected Health Information; Disposition When Return or Destruction Not Feasible. Upon termination of this Agreement, the parties hereby acknowledge that the return or destruction of PHI received by the Business Associate from Covered Entity is not feasible, and that, therefore, Business Associate may retain a copy of such Protected Health Information provided that: (i) the provisions of this Agreement shall continue to apply to any such information retained following cancellation, termination, expiration, or other conclusion of Covered Entity's participation on the Service; and (ii) Business Associate shall limit Uses and Disclosures of such PHI to those purposes that make the return or destruction thereof not feasible, for as long as Business Associate maintains such PHI.
4.3.2 Reasonable Fees. All reasonable fees incurred to cause the return, destruction, or storage of Protected Health Information under this Section 4.3 shall be borne by the Covered Entity.
5.1 Regulatory References. A reference in this BA Agreement to a section in HIPAA, the HITECH Act, the Privacy Standards, or the Security Standards means the section as in effect or as amended at the time.
5.2 Survival. The respective rights and obligations of the parties under Section 4.3 of this BA Agreement shall survive the termination of this BA Agreement.
5.3 Interpretation. Any ambiguity in this BA Agreement shall be resolved in favor of a meaning that permits the parties to comply with the Privacy Standards and Security Standards. Except to the extent specified by this BA Agreement, all of the terms and conditions governing Covered Entity's participation on the Service shall be and remain in full force and effect. In the event of any inconsistency or conflict between this BA Agreement and the terms and conditions governing Covered Entity's participation on the Service, the terms and provisions and conditions of this BA Agreement shall govern and control.
5.4 Amendment. The parties shall work together through reasonable negotiations to amend this BA Agreement as necessary to comply with any changes in law, including, but not limited to, the promulgation of amendments to the Privacy Standards or Security Standards required by the HITECH Act or any other future laws, applicable to or affecting the rights, duties, and obligations of the parties under this BA Agreement or the terms and conditions governing Covered Entity's participation on the Service.
5.5 Independent Relationship. None of the provisions of this BA Agreement are intended to create, nor will they be deemed to create, any relationship between the parties other than that of independent parties contracting with each other as independent contractors solely for the purposes of effecting the provisions of this BA Agreement and the terms and conditions governing Covered Entity's participation on the Service.
5.6 Notices. In addition to Section 2.h. ("Notifications and Service Messages") and 11.b (“Notices and Service of Process”), we may notify you via postings on www.Adviise.nyc. You may contact us at support@Adviise.nyc.
All notices and notifications under this BA Agreement shall be sent in writing by traceable carrier to the listed persons on behalf of Business Associate and Covered Entity at the addresses indicated at the address below, or as set forth in the online registration process or such other address as a party may indicate by at least ten (10) days' prior written notice to the other party. Notices will be effective upon receipt. Any notices provided without compliance with this section on Notices shall have no legal effect.
5.7 Construction and Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of the State of Texas (excepting any conflict of laws provisions which would serve to defeat application of Texas law). Each of the parties hereto submits to the exclusive jurisdiction of the state and/or federal courts located within the State of Texas for any suit, hearing or other legal proceeding of every nature, kind and description whatsoever in the event of any dispute or controversy arising hereunder or relating hereto, or in the event any ruling, finding or other legal determination is required or desired hereunder.