This Platform Subscription Agreement (“Agreement”) is entered into by and between you
(“Customer”) and AZOVA, Inc. (“AZOVA”) and is effective as of the date of the signature of an
applicable Service Order (Order) or the date of the digital signature for this Agreement, whichever
comes later (“Effective Date”). Customer’s use of the Services is also subject to AZOVA’s Customer
Terms of Use which may be amended at any time in AZOVA’s sole discretion. Your continued use of
the Services will represent your consent to any revisions to the Terms of Use. In the event of a
conflict between this Agreement and the Terms of Use, the terms of this Agreement shall prevail.
1. Services
AZOVA provides a cloud based platform to enable healthcare professionals to connect with
consumers seeking healthcare services (together with any additional services that Customer may
order, the “Services”). AZOVA does not provide consultation, advice, diagnostic or treatment
recommendations. During the Term and subject to Customer’s payment of all relevant fees, AZOVA
grants Customer a non-exclusive, non-transferable revocable right to access and use the Services
pursuant to and in accordance with the provisions of this Agreement. Customer may not transfer or
offer access to the Services for any affiliates, subsidiaries, parent corporations, or affiliate entities. If
Customer is required to install and download software from AZOVA in connection with the Services,
AZOVA provides Customer with a limited, personal, non-exclusive, non-transferable,
non-sublicensable, revocable license to use the software in accordance with the provisions of this
Agreement. Services ordered by customer are set forth in the applicable Order document, which
shall be amended only in writing upon addition or termination of any particular service.
2. Term
The term of this Agreement will begin on the Effective Date (and include the Trial Period if any) and
will continue thereafter unless either party gives notice to the other of its intent to terminate this
Agreement in accordance with Section 22 (Termination) and with the applicable Order (“Term”).
3. Restrictions
Customer and its employees and contractors, and the consumers receiving consultations
(collectively, the “Users”) may only use the Services for the purpose of providing and receiving
telehealth consultations by Customer. Customer is responsible for ensuring its Users comply with all
relevant terms of this Agreement and any failure to comply will constitute a breach by Customer.
Except as expressly authorized by this Agreement, Customer will not, and will not allow any User or
other third party to, engage in or use the Services: (i) to permit any third party to access or use the
Services other than a User, (ii) to decompile, disassemble, reverse engineer, or otherwise attempt to
derive the trade secrets embodied in the Services, (iii) to use the Services or any AZOVA
confidential information to develop a competing product or service, (iv) to use any Service in
violation of any export control laws or regulations administered by the U.S. Commerce Department
or any other government agency, (v) to remove any copyright, trademark, proprietary rights,
disclaimer, or warning notice included on or embedded in any part of the Service, including any
screen displays, etc., or any other products or materials provided by AZOVA hereunder, (vi) to use
the Service in a manner that violates privacy rights or that constitutes infringement of the intellectual
property or other proprietary rights, (vii) for fraudulent or illegal purposes, and/or (v) to use the Service that otherwise violates AZOVA policies, applicable laws, ordinances or regulations. Under
no circumstances will AZOVA be liable or responsible for any use, or any results obtained by the
use, of the Services in conjunction with any services, software, or hardware that are not provided by
AZOVA. All such use will be at Customer’s sole risk and liability.
4. Customer Branded Solution
Subject to the applicable fees, AZOVA may offer to Customer a Customer branded portal access
enabling Users to access the Services via a Customer branded webpage and/or mobile application
(“Branded Solution”). The Branded Solution will include such attribution as AZOVA may prescribe in
AZOVA’s sole discretion. The attribution will be placed in a location satisfactory to AZOVA in
AZOVA’s sole discretion. Customer is responsible for all Customer Content (as defined in this
Agreement) placed on the Branded Solution and elsewhere. Customer agrees that it is the
information content provider for all Customer Content posted on the Branded Solution, and that
pursuant to Section 230 of the Communications Decency Act, AZOVA shall not be treated as the
publisher or speaker of any Customer Content. AZOVA does not endorse, approve, or vet any
Customer Content placed on the Branded Solution or made available through AZOVA in any way. All
Customer Content is Customer’s responsibility, and AZOVA shall not be liable for any reason for
anything posted by Customer. To the extent that Customer stores, processes, accesses or transmits
payment card “Account Data,” “Cardholder Data,” or “Sensitive Authentication Data” (as defined by
the Payment Card Industry Data Security Standard, hereafter “PCI DSS”), Customer represents and
warrants that it stores, transmits and processes such data in compliance with PCI DSS requirements
as well as any other applicable payment standards, or applicable laws and regulations. Customer
further represents and warrants that it shall continue to be fully compliant with all such standards,
laws and regulations for all times that it stores, processes, accesses, or transmits payment card
“Account Data.” Customer further acknowledges that it is Customer’s ongoing responsibility
hereunder for securing Cardholder Data and Sensitive Authentication Data in accordance with the
PCI DSS. Should Customer fail to maintain compliant practices in accordance with this section, such
failure shall be deemed a material breach of this Agreement.
5. Availability
AZOVA shall undertake commercially reasonable measures to ensure that the Services shall be
available for access and use by Customer 99% of the time throughout the Term, except during
pre-scheduled maintenance or in accordance with Section 24.3 (Force Majeure). In the event the
Services are not available for use, AZOVA shall use commercially reasonable efforts to correct the
interruption as promptly as practicable. In the event AZOVA is unable to correct the availability of the
Services within seven days, customer may terminate this Agreement. Such termination shall
constitute Customer’s sole and exclusive remedy and AZOVA’s sole and exclusive liability for failure
to make the Services available for use. Customer and AZOVA specifically agree that AZOVA is not
liable for any consequential or incidental damages associated with use of the Services, including, but
not limited to, damages associated with lost profits or the unavailability of the Services.
6. Connectivity
Customer and Users are solely responsible for all telecommunication or Internet connections
required to access the Services, and pay for all telecommunications costs, fees and services
required for Customer’s and Users’ access to the Services.
7. No Provision of Advice or Services
As part of the Services, AZOVA provides a platform for Customer to communicate with consumers,
potential consumers, patients, and potential patients. AZOVA does not provide any medical advice,
legal advice, or representations in any way regarding any legal or medical issues associated with
Customer, goods or services offered by the Customer, including, but not limited to, any compliance
obligations or steps necessary to comply with any state or federal laws and regulations. Customer
should seek legal counsel regarding any legal and compliance issues, and should not rely on any
materials or content associated with the Services in determining Customer’s compliance obligations
under law. Customer and AZOVA agree that AZOVA is not providing, to Customer or anyone else,
medical advice or legal advice.
8. Compliance
Each party agrees to comply with all applicable federal, state and local laws in performing its
obligations hereunder, and Customer agrees that Customer is solely responsible for ensuring
compliance with all Customer Content and Customer’s business practices (including, but not limited
to, any offerings made via the Branded Solution), which include, but are not limited to, the federal
and state anti-kickback and self-referral laws and regulations at all times during the term of this
Agreement. The parties acknowledge that although AZOVA is obligated to provide the Services as
specified in this Agreement, there is no obligation of AZOVA to refer patients to Customer or any
affiliate of Customer, and there is no obligation of Customer to refer patients to any person or
business entity. Notwithstanding the unanticipated effect of any of the provisions herein, the parties
intend to comply with 42 U.S.C. § 1320a-7b(b) (commonly known as the Anti-Kickback Statute), 42
U.S.C. § 1395nn (commonly known as the Stark Law) and any other federal or state law provision
governing fraud and abuse or self-referrals, as such provisions may be amended from time to time.
This Agreement will be construed in a manner consistent with compliance with such statutes and
regulations, and the parties hereto agree to take such actions necessary to construe and administer
this Agreement accordingly. The parties hereto represent, covenant and agree that the
compensation due to AZOVA under this Agreement and the Order has been determined through
good faith and arm’s length bargaining to be commercially reasonable. The sole purpose of the
payments to AZOVA hereunder is to pay fair market value for Services actually rendered by AZOVA
to Customer hereunder. These Services strictly and solely provide a cloud-based platform to enable
healthcare professionals to connect with consumers, and do not involve any provision of any
Services by AZOVA to any customer or client of Customer. No amount paid hereunder is intended to
be, nor shall be construed as, an inducement or payment for referral of, or recommending referral of,
patients by AZOVA (or its employees and agents) to Customer (or its employees or agents) or by
Customer (or its employees and agents) to AZOVA (or its employees and agents). In addition, fees
charged hereunder do not include any discount, rebate, kickback, or other reduction in charge. This
Agreement shall be interpreted and construed at all times in a manner consistent with applicable
laws and regulations governing the financial relationships among individuals and entities that provide or arrange for the provision of items or services that are reimbursable by governmental health care
programs or other third party payors.
9. No Referrals
The parties acknowledge that none of the benefits granted hereunder, and none of the Services
offered or the compensation due to AZOVA pursuant to the Agreement and the Order, are
conditioned on any requirement that either party make referrals to, be in a position to make or
influence referrals to, or otherwise generate business for the other party. Customer shall be solely
responsible for any and all billing, coding and collections associated with the services Customer
provides its patients, including the determination of whether or not such services are covered by
health plans, governmental agencies, third party payers or other financially-responsible parties. In no
event shall AZOVA be responsible for Customer’s billing or billing practices.
10. Business Associate Agreement
The parties agree to the terms and conditions contained in the Business Associate Agreement
(“BAA”) set forth in Exhibit A to this Agreement.
11. Proprietary Rights
Customer acknowledges and agrees that (i) the Services are protected by intellectual property
rights, as applicable, of AZOVA and its vendors/licensors and that Customer has no right to transfer
or reproduce the Services, in whole or in part, or prepare any derivative works with respect to, or
disclose confidential information pertaining to, any Services or any part of them, and (ii) that AZOVA
owns all right, title, and interest in and to the Services, including any changes or modifications made
to the Services whether or not performed subject to an Order, together with all ideas, architecture,
algorithms, models, processes, techniques, user interfaces, database design and architecture, and
“know-how” embodying the Services. Under no circumstances will Customer be deemed to receive
title to any portion of the Services, title to which at all times will vest exclusively in AZOVA. Customer
will not use any confidential information disclosed by AZOVA to Customer to contest the validity of
any intellectual property rights of AZOVA or its licensors. Any such use of AZOVA’s confidential
information and data will constitute a material, non-curable breach of this Agreement.
12. Customer Consent
Customer grants AZOVA a non-exclusive, world-wide, royalty-free license to use the data and other
information input by Customer into the Services (the “Customer Content”) for purposes of performing
this Agreement, as directed or instructed by Customer and its Users (e.g., in the context of support
requests), AZOVA policies, and/or applicable law. Customer will be responsible for obtaining all
rights, permissions, and authorizations to with respect to the Customer Content for use as
contemplated under this Agreement. Except for the license granted in this Section, nothing
contained in this Agreement will be construed as granting AZOVA any right, title, or interest in the
Customer Content. Customer shall retain a copy of Customer Content outside the Services.
Customer shall comply with all intellectual property, marketing laws, advertising laws, privacy laws,
and all other laws and regulations related to the Customer Content and shall comply with all legal
duties applicable to Customer. Specifically, Customer shall provide the relevant Users with all
information or notices Customer is required by applicable privacy and data protection law to provide and, if necessary, obtain the consent of or provide choices to such Users as required by such laws.
AZOVA and Customer shall apply reasonable technical, organizational and administrative security
measures to keep Customer Content protected in accordance with industry standards. Customer is
solely responsible for the configuration of its Service account and configuration, operation,
performance and security of its equipment, networks and other computing resources, including its
gateways or other devices and networks used to connect to the Services. This Section states
AZOVA’s exclusive obligations with respect to Customer Content.
13. Aggregated Data
Customer grants AZOVA a non-exclusive, perpetual, irrevocable, fully-paid-up, royalty free license to
use, copy, distribute, and otherwise exploit statistical and other aggregated data derived from
Customer’s use of Services (the “Aggregated Data”) for AZOVA’s business purposes, including the
provision of products and services to AZOVA’s customers. Aggregated Data does not include
information identifying Customer or any identifiable individual. The Aggregated Data will not be
considered Customer’s confidential information.
14. Feedback
Customer may provide suggestions, comments or other feedback (collectively, “Feedback”) to
AZOVA with respect to its products and services, including the Services. Feedback is voluntary.
AZOVA may use Feedback for any purpose without obligation of any kind. To the extent a license is
required under Customer’s intellectual property rights to make use of the Feedback, Customer
grants AZOVA an irrevocable, non-exclusive, perpetual, fully-paid-up, royalty-free license to use the
Feedback in connection with AZOVA’s business, including the enhancement of the Services.
15. Support and Maintenance
AZOVA will provide technical support through secure messaging, telephone or online screenshare.
Customer may access customer support through the help feature on customer’s dashboard.
Technical support is available Monday through Friday, 7:30 a.m. to 5 p.m. MST, except for state and
federal holidays or any downtimes associated with operational or logistical issues. Additional support
may be available in AZOVA’s sole discretion, and may be subject to additional fees and the terms
and conditions of the Order.
16. Fees
16.1 Payment for Services
Customer, or the signatory of the applicable Order, will pay AZOVA the fees set forth in the
Order under the Payment for Services section of the Order.
16.2 Taxes
In addition to any other payments due under the Order, Customer agrees to pay, indemnify and
hold AZOVA harmless from any sales, use, transfer, privilege, tariffs, excise, and all other taxes
and all duties, whether international, national, state, or local, however designated, which are
levied or imposed by reason of the performance of the Services under this Agreement;
excluding, however, income taxes on profits which may be levied against AZOVA.
16.3 Data Transfer Fee
If, upon termination of this Agreement or closing of Customer’s account, AZOVA will upon
request transfer Customer’s stored data to the storage service of Customer’s choice at a data
transfer fee of $275.00 per healthcare professional. Once the account has been closed and the
Customer data has been transferred, AZOVA will no longer retain a copy of Customer’s data.
17. Customer Obligations
Customer will perform its obligations in accordance with the requirements of this Agreement in a
commercially reasonable manner. Customer’s failure to perform its obligations may adversely affect
AZOVA’s ability to meet its performance obligations and the parties agree that if Customer fails to
perform its material obligations, AZOVA will promptly notify Customer of the failure and the
reasonably anticipated consequences of the failure, and the parties will negotiate in good faith to
arrive at an equitable adjustment to the terms of this Agreement to compensate AZOVA for any
additional effort and costs directly caused by Customer’s delay or failure to perform. Further,
Customer’s failure to perform certain tasks may prevent or disrupt Customer from having access to
Services. Customer is responsible for preserving and making adequate backups of its data.
18. Warranties
18.1 Customer Warranty
Customer represents and warrants that (a) it has full power, capacity, and authority to enter into
this Agreement and to grant the license set forth in Section 12 (Customer Content); (b) any
Customer Content provided by Customer for use in connection with the Services does not and
will not infringe the intellectual property, publicity, or privacy rights of any person and is not
defamatory, obscene, or in violation of applicable foreign, federal, state and local laws, rules
and regulations (including, but not limited to, applicable policies and laws related to spamming,
such as CAN-SPAM, privacy, and consumer protection) (collectively, “Applicable Law”); (c) its
use of the Services will be in compliance with all Applicable Law; and (d) neither Customer nor
any Users shall make any representations with respect to AZOVA, the Services or this
Agreement (including, without limitation, that AZOVA is a warrantor or co-seller or provider of
any of Customer’s products and/or services).
18.2 AZOVA Warranty
During the Term, AZOVA represents and warrants the Services will substantially comply with
the specifications, if any, and as otherwise described in the then current documentation made
generally available by AZOVA to its customers regarding the Services. In the event of a breach
of the warranty, AZOVA’s sole and exclusive liability and Customer’s sole and exclusive remedy
will be to provide restored or replacement service which conforms to this warranty.
18.3 Disclaimer of Warranties
EXCEPT AS PROVIDED IN SECTION 18.2, THE SERVICES ARE PROVIDED “AS IS” AND
“AS-AVAILABLE,” WITH ALL FAULTS, AND WITHOUT WARRANTIES OF ANY KIND. AZOVA
AND ITS VENDORS AND LICENSORS DISCLAIM ALL OTHER WARRANTIES, EXPRESS
AND IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT,
QUALITY OF INFORMATION, TITLE, AND NON-INFRINGEMENT. NO ORAL OR WRITTEN
INFORMATION OR ADVICE GIVEN BY AZOVA OR ITS AUTHORIZED REPRESENTATIVES
WILL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF AZOVA’S
OBLIGATIONS HEREUNDER. THE SERVICES MAY BE USED TO ACCESS AND
TRANSFER INFORMATION OVER THE INTERNET. CUSTOMER ACKNOWLEDGES AND
AGREES THAT AZOVA AND ITS VENDORS AND LICENSORS DO NOT OPERATE OR
CONTROL THE INTERNET AND THAT: (I) VIRUSES, WORMS, TROJAN HORSES, OR
OTHER UNDESIRABLE DATA OR SOFTWARE; OR (II) UNAUTHORIZED USERS MAY
ATTEMPT TO OBTAIN ACCESS TO AND DAMAGE CUSTOMER’S DATA, WEBSITES,
COMPUTERS, OR NETWORKS. AZOVA WILL NOT BE RESPONSIBLE FOR SUCH
ACTIVITIES.
19. Indemnity
Customer will defend and indemnify AZOVA and hold it harmless from any and all claims, losses,
deficiencies, damages, liabilities, costs, and expenses (including, but not limited to, reasonable
attorneys’ fees) incurred by AZOVA as a result of any claim by a third party arising from or related to
any (i) Customer breach of this Agreement, (ii) Customer’s use of the Services in breach of this
Agreement, or (iii) Customer Content. Customer’s indemnification obligations also include
Customer’s noncompliance with any and all insurance contracts or coverage, payment or
reimbursement laws, rules and regulations, and AZOVA makes no guarantee the use of the Services
comply with government or third party payor reimbursement rules. Customer additionally indemnifies
and holds AZOVA harmless for any and all losses, liabilities, damages, claims, costs, penalties,
expenses, and fees (including, but not limited to, reasonable attorneys’ fees, disbursements of
counsel, and costs of investigation, litigation, third party discovery, and settlement) arising out of or
in connection with the introduction by Customer (whether inadvertent or purposeful) of any computer
virus or malicious computer program into AZOVA’s computing systems, website code, or the
unauthorized access of Customer or User data as result of unauthorized access to any of AZOVA’s
computing systems or data
20. Data Security and Confidentiality
In conjunction with the Services, from time to Customer and AZOVA may exchange Personally
Identifiable Information (“PII”), as well as Protected Health Information (“PHI”). PII means any
information identified as PII by law or regulation, or information relating to an identified or identifiable
person and that, either by itself or in combination with other pieces of information, identifies, or can
be used to identify, an individual. Examples of Personal Information include, but are not limited to,
names, phone numbers, addresses, credit card information, social security numbers, as well as
account or financial information. PHI means any information identified as PHI by law or regulation,
such as individually identifiable health information. Customer and AZOVA agree to take such
measures as required by law or regulation regarding the handling of PII, PHI, and any confidential
data protected by law or regulation, and to adhere to the terms of the BAA attached hereto as Exhibit
A. Customer further understands and agrees that AZOVA may use system message logging, which
may cache and store a copy of all conversations on our servers or secure messaging platforms to
make them available across multiple devices or platforms to both parties to the conversation.
AZOVA may automatically scan the content of messages sent or received on secure messagingplat forms to enable or facilitate the performance of the Services or to improve features and
functionality. For example, AZOVA may follow the links transmitted in messages in order to discern
the format of those links and enable AZOVA to locate and retrieve the content.
21. Limitation of Liability and Damages
NEITHER AZOVA NOR ITS VENDORS AND LICENSORS WILL HAVE ANY LIABILITY TO
CUSTOMER OR ANY THIRD PARTY FOR ANY LOSS OF PROFITS, SALES, TRADING LOSSES,
BUSINESS, DATA, OR OTHER INCIDENTAL, CONSEQUENTIAL, OR SPECIAL LOSS OR
DAMAGE, INCLUDING EXEMPLARY AND PUNITIVE, OF ANY KIND OR NATURE RESULTING
FROM OR ARISING OUT OF THIS AGREEMENT, INCLUDING USE OF OR INABILITY TO USE
THE SERVICES. THE TOTAL LIABILITY OF AZOVA AND ITS VENDORS AND LICENSORS TO
CUSTOMER OR ANY THIRD PARTY ARISING OUT OF THIS AGREEMENT OR USE OF THE
SERVICES IN CONNECTION WITH ANY CLAIM OR TYPE OF DAMAGE (WHETHER IN
CONTRACT OR TORT, INCLUDING NEGLIGENCE) WILL NOT EXCEED THE TOTAL FEES PAID
HEREUNDER BY CUSTOMER DURING THE THREE (3) MONTHS IMMEDIATELY PRECEDING
THE EVENT GIVING RISE TO THE LIABILITY. THIS LIMITATION OF LIABILITY WILL APPLY
EVEN IF THE EXPRESS WARRANTIES SET FORTH ABOVE FAIL OF THEIR ESSENTIAL
PURPOSE.
22. Termination
22.1 Termination
Customer may terminate this Agreement or terminate a particular Service according to the
Continuance and Termination clause in the applicable Order.
22.2 Suspension of Services
AZOVA may, in its sole discretion, immediately suspend Customer’s access to the Services for
any of the following reasons: (a) to prevent damages or risk to, or degradation of, the Services;
(b) to comply with any law, regulation, court order, or other governmental request; (c) to
otherwise protect AZOVA from potential legal liability; or (d) in the event any fees due to
AZOVA remain unpaid. AZOVA will use reasonable efforts to provide Customer with notice prior
to or promptly following any suspension of the Services. AZOVA will promptly restore access to
the Services as soon as the event giving rise to suspension has been resolved. This Section
will not be construed as imposing any obligation or duty on AZOVA to monitor use of the
Services.
22.3 Effect of Termination
Upon termination of this Agreement or termination of a particular Service for any reason: (a)
Customer’s and all Users’ access to and use of the terminated Services will cease as of the
effective date of termination; (b) AZOVA will cease to provide the Services, and Customer will
pay to AZOVA all undisputed sums due to AZOVA for Services and authorized expenses
incurred through the effective date of such expiration or termination (prorated as appropriate);
and (c) AZOVA, at its sole discretion, may take reasonable steps to assist Customer in making
an orderly transition of data related to the Services back to Customer or its designees and may
notify all affected Users of the termination of this Agreement and either provide the Users with any applicable data or direct Users to Customer to obtain a copy of any User data provided to
Customer utilizing the Services. Subsequent to the termination of this Agreement, the parties
agree that AZOVA bears no responsibility for maintaining or preserving any Customer Content,
User data, or data related to any Services provided to Customer or Users, including, but not
limited to, User data provided to Customer utilizing such Services, but that AZOVA may in its
discretion retain any such data for any period of time.
23. General Provisions
23.1 Affiliates, Subcontractors and Vendors
Some or all of the Services, including support, may be provided by AZOVA’s affiliates, agents,
subcontractors and information system vendors. The rights and obligations of AZOVA may be,
in whole or in part, exercised or fulfilled by the foregoing entities. AZOVA shall ensure such
entities comply with all relevant terms of this Agreement and any failure to do so shall constitute
a breach by AZOVA.
U.S. Government Rights
This product includes CPT which is commercial technical data, which was developed
exclusively at private expense by the American Medical Association (AMA), 330 North Wabash
Avenue, Chicago, Illinois 60611. The AMA does not agree to license CPT to the Federal
Government based on the license in FAR 52.227-14 (Data Rights - General) and
DFARS252.227-7015 (Technical Data - Commercial Items) or any other license provision. The
AMA reserves all rights to approve any license with any Federal agency.
23.2 Publicity
AZOVA may identify Customer as a customer in its customer listings, websites, and other
promotional materials. In addition, AZOVA may issue a press release regarding the parties’
relationship under this Agreement.
23.3 Force Majeure
Except for the payment of money as described in Section 16 (Fees) of this Agreement, neither
party will be liable for any failure or delay in performance under this Agreement which is due to
any event beyond the reasonable control of such party, including, without limitation, fire,
explosion, unavailability of utilities or raw materials, internet delays and failures,
telecommunications failures, unavailability of components, labor difficulties, war, riot, act of
God, export control regulation, laws, judgments or government instructions.
23.4 Entire Agreement; Amendment
This Agreement sets forth the entire agreement between the parties with regard to the subject
matter hereof. No other agreements, representations, or warranties have been made by either
party to the other with respect to the subject matter of this Agreement, except as referenced
herein. To the extent that this Agreement conflicts with any click-wrap, browse-wrap, or online
agreements (such as website terms of service or Notice of Privacy Practices), the language in this
Agreement shall control.
23.5 Governing Law, Venue, Limitations of Actions
This Agreement will be construed according to, and the rights of the parties will be governed by,
the law of the State of Utah, without reference to its conflict of laws rules or provisions, and the
exclusive forum and venue for any dispute regarding or related to this Agreement shall be
arbitration as set forth below.
23.6 Binding Arbitration
THIS IS A FULL WAIVER OF JURY TRIAL RIGHTS AND BINDING ARBITRATION. All
disputes under, concerning or relating to this Agreement shall be resolved by mandatory
binding arbitration. The arbitration proceeding shall be administered by the American Arbitration
Association (“AAA”) or such other administrator, as the parties shall mutually agree upon.
Arbitration shall be conducted in accordance with the AAA Commercial Arbitration Rules. If
there is any inconsistency between the terms hereof and any such rules, the terms and
procedures set forth herein shall control. A single arbitrator will resolve the dispute and shall be
selected by mutual agreement of the parties. If the parties are unable to agree to an arbitrator,
the AAA shall select and appoint the arbitrator. The arbitration shall be conducted in Utah
County, Utah or such other location as may be mutually agreed upon by the parties. All statutes
of limitation applicable to any dispute shall apply to any arbitration proceeding. All discovery
activities shall be expressly limited to matters directly relevant to the dispute being arbitrated
and subject to limitation by the arbitrator to a level commensurate with the amount in
controversy and complexity of the issues involved. Judgment upon any award rendered in
arbitration may be entered in any court having jurisdiction.
23.7 Compliance with Laws
Both parties agree to comply with all applicable local, state, national and foreign laws, rules,
and regulations, including, but not limited to, all applicable data protection, privacy, anti-spam,
export and import laws and regulations, in connection with their performance, access and/or
use of the Services under this Agreement. AZOVA does not guarantee the Services are
appropriate and/or available for use in any particular context or location and Customer is
responsible for compliance with local laws to the extent applicable. AZOVA reserves the right to
modify the Services for any reason, without notice and without liability to Customer or any User,
to comply with applicable law.
23.8 No Third Party Beneficiaries
There are no third party beneficiaries to this agreement.
23.9 Relationship of the Parties
The parties agree that AZOVA will perform its duties under this Agreement as an independent
contractor. Nothing contained in this Agreement will be deemed to establish a partnership, joint
venture, association, or employment relationship between the parties. Personnel employed or
retained by AZOVA who perform duties related to this Agreement will remain under the
supervision, management, and control of AZOVA.
23.10 Assignment
Customer may not assign this Agreement without the prior written consent of AZOVA. AZOVA
may assign this Agreement without the prior written consent of Customer.
23.11 Severability
If any of the provisions of this Agreement are found or deemed by a court to be invalid or
unenforceable, they will be severable from the remainder of this Agreement and will not cause
the invalidity or unenforceability of the remainder of this Agreement.
23.12 Waiver
Neither party will by mere lapse of time without giving notice or taking other action hereunder be
deemed to have waived any breach by the other party of any of the provisions of this
Agreement. Further, the waiver by either party of a particular breach of this Agreement by the
other party will not be construed as, or constitute, a continuing waiver of such breach.
23.13 Survival
The following provisions will survive termination or expiration of this Agreement: 11 (Proprietary
Rights), 18.3 (Disclaimer of Warranties), 19 (Indemnity), 20 (Data Security and Confidentiality),
22 (Limitation of Liability and Damages), 23 (Termination), and 24 (General Provisions).
23.14 Notices
Any written notice or demand required by this Agreement will be sent by electronic mail
(delivery receipt requested) to the email address provided in this Agreement. The notice will be
effective as of the date of delivery. Any party may change the email address at which it receives
notices by giving written notice to the other party in the manner prescribed by this Section.
BUSINESS ASSOCIATE AGREEMENT
This Business Associate Agreement (“BAA”) is entered into and effective date of the Agreement
(“Effective Date”) by and between you (“Customer” or “Covered Entity” or “Entity”) and AZOVA, Inc.
(“AZOVA” or “Business Associate”) (each a “Party” and collectively, the “Parties”). Entity may be a
“Covered Entity” as that term is defined under the Health Insurance Portability and Accountability Act
of 1996 (Public Law 104-91), as amended, (“HIPAA”), and the regulations promulgated thereunder
by the Secretary of the U.S. Department of Health and Human Services (“Secretary”), including,
without limitation, the regulations codified at 45 C.F.R. Parts 160 and 164 (“HIPAA Regulations”).
AZOVA performs Services for or on behalf of Entity, and in performing said Services, AZOVA
creates, receives, maintains, or transmits individually identifiable health information. The Parties
intend to protect the privacy and provide for the security of the individually identifiable health
information Disclosed by Entity to AZOVA, or accessed, received, created, or transmitted by
AZOVA, when providing Services. Such individually identifiable health information or Protected
Health Information (“PHI”) will be protected in compliance with HIPAA, the Health Information
Technology for Economic and Clinical Health Act (Public Law 111-005) (the “HITECH Act”) and its
implementing regulations and guidance issued by the Secretary, and other applicable state and
federal laws, all as amended from time to time. Covered Entities are required under HIPAA to enter
into a Business Associate Agreements that meet certain requirements with respect to the Use and
Disclosure of PHI, which are met by this BAA. Accordingly, to the extent required by HIPAA, AZOVA
agrees to comply with this BAA. In consideration of the Recitals and for other good and valuable
consideration, the receipt and adequacy of which is hereby acknowledged, the Parties agree as
follows:
ARTICLE I
DEFINITIONS
The following terms shall have the meaning set forth below. Capitalized terms used in this BAA and
not otherwise defined shall have the meanings ascribed to them in HIPAA, the HIPAA Regulations,
or the HITECH Act, as applicable.
1.1.
“Breach” shall have the meaning given such term under 45 C.F.R. § 164.402.
1.2.
“Designated Record Set” shall have the meaning given such term under 45 C.F.R. § 164.501.
1.3.
“Disclose” and “Disclosure” mean, with respect to PHI, the release, transfer, provision of access
to, or divulging in any other manner of PHI outside of Business Associate or to other than members
of its Workforce, as set forth in 45 C.F.R. § 160.103.
1.4.
“Electronic PHI” or “e-PHI” means PHI that is transmitted or maintained in electronic media, as
set forth in 45 C.F.R. § 160.103.
1.5.
“Protected Health Information” and “PHI” mean any information, whether oral or recorded in any
form or medium, that: (a) relates to the past, present or future physical or mental health or condition
of an individual; the provision of health care to an individual, or the past, present or future payment
for the provision of health care to an individual; (b) identifies the individual (or for which there is a
reasonable basis for believing that the information can be used to identify the individual); and (c)
shall have the meaning given to such term under the Privacy Rule, including, but not limited to, 45
C.F.R. § 160.103. Protected Health Information includes e-PHI.
1.6.
“Security Incident” shall have the meaning given to such term under 45 C.F.R. § 164.304.
1.7.
“Services” shall mean the services for or functions on behalf of Covered Entity performed by
Business Associate pursuant to any service agreement(s) between Covered Entity and Business
Associates which may be in effect now or from time to time (“Underlying Agreement”), or, if no such
agreement is in effect, the services or functions performed by Business Associate that constitute a
Business Associate relationship, as set forth in 45 C.F.R. § 160.103.
1.8.
“Subcontractor” shall have the meaning given to such term under 45 C.F.R. § 160.103.
1.9.
“Unsecured PHI” shall have the meaning given to such term under 45 C.F.R. § 164.402.
1.10.
“Use” or “Uses” mean, with respect to PHI, the sharing, employment, application, utilization,
examination or analysis of such PHI within Business Associate’s internal operations, as set forth in
45 C.F.R. § 160.103.
1.11.
“Workforce” shall have the meaning given to such term under 45 C.F.R. § 160.103.
ARTICLE II
OBLIGATIONS OF BUSINESS ASSOCIATE
2.1.
Permitted Uses and Disclosures of Protected Health Information. Business Associate shall not
Use or Disclose PHI other than for the purposes of performing the Services, as permitted or required
by this BAA, or as Required by Law. Business Associate shall not Use or Disclose PHI in any
manner that would constitute a violation of Subpart E of 45 C.F.R. Part 164 if so Used or Disclosed
by Covered Entity. Without limiting the generality of the foregoing, Business Associate is permitted to
(i) Use PHI for the proper management and administration of Business Associate; (ii) Use and
Disclose PHI to carry out the legal responsibilities of Business Associate, provided that with respect
to any such Disclosure either: (a) the Disclosure is Required by Law or (b) Business Associate
obtains an agreement from the person to whom the PHI is to be Disclosed that such person will hold
the PHI in confidence and will not Use and further Disclose such PHI except as Required by Law
and for the purpose(s) for which it was Disclosed by Business Associate to such person, and that
such person will notify Business Associate of any instances of which it is aware in which the
confidentiality of the PHI has been breached; (iii) Use PHI for Data Aggregation purposes in connection with the Health Care Operations of Covered Entity; and (iv) Use PHI for purposes of
de-identification of the PHI.
2.2.
Adequate Safeguards of PHI. Business Associate shall implement and maintain appropriate
safeguards and shall comply with the applicable requirements of Subpart C of 45 C.F.R. Part 164 to
prevent Use or Disclosure of PHI other than as provided for by this BAA.
2.3.
Reporting Security Incidents and Non-Permitted Uses or Disclosures of PHI. Business
Associate shall notify Covered Entity of any Use or Disclosure by Business Associate or its
Subcontractors that is not specifically permitted by this BAA and each Security Incident, including
Breaches of Unsecured PHI, within five (5) business days of becoming aware. Notwithstanding the
foregoing, Business Associate and Covered Entity acknowledge the ongoing existence and
occurrence of attempted but ineffective Security Incidents that are trivial in nature, such as pings and
other broadcast service attacks, and Covered Entity acknowledges and agrees that no additional
notification to Covered Entity of such ineffective Security Incidents is required, as long as no such
incident results in unauthorized access, Use or Disclosure of PHI. If Business Associate determines
that a Breach of Unsecured PHI has occurred, Business Associate shall provide a written report to
Covered Entity without unreasonable delay but no later than thirty (30) calendar days after discovery
of the Breach. To the extent that information is available to Business Associate, Business
Associate’s written report to Covered Entity shall be in accordance with 45 C.F.R. §164.410(c).
2.4.
Use of Subcontractors. Business Associate shall require each of its Subcontractors that creates,
maintains, receives, or transmits PHI on behalf of Business Associate, to execute a Business
Associate Agreement that imposes on such Subcontractors substantially the same restrictions,
conditions, and requirements that apply to Business Associate under this BAA with respect to PHI.
2.5.
Access to Protected Health Information. To the extent that Business Associate maintains a
Designated Record Set on behalf of Covered Entity, Business Associate shall make the PHI it
maintains (or which is maintained by its Subcontractors) in such Designated Record Sets available
to Covered Entity for inspection and copying to enable Covered Entity to fulfill its obligations under
45 C.F.R. § 164.524 within fifteen (15) business days of a request by Covered Entity.
2.6.
Amendment of Protected Health Information. To the extent that Business Associate maintains a
Designated Record Set on behalf of Covered Entity, Business Associate shall amend the PHI it
maintains (or which is maintained by its Subcontractors) in Designated Record Sets to enable the
Covered Entity to fulfill its obligations under 45 C.F.R. § 164.526 within fifteen (15) business days of
a request by Covered Entity.
2.7.
To the extent that Business Associate maintains a Designated Record Set on behalf of Covered
Entity, within thirty (30) days of receipt of a request from Covered Entity or an individual for an
accounting of disclosures of PHI, Business Associate and its Subcontractors shall make available to
Covered Entity the information required to provide an accounting of disclosures to enable Covered
Entity to fulfill its obligations under 45 C.F.R. § 164.528 and 42 U.S.C. § 17935(c).
2.8.
Delegated Responsibilities. To the extent that Business Associate carries out one or more of
Covered Entity’s obligations under Subpart E of 45 C.F.R. Part 164, Business Associate must comply with the requirements of Subpart E that apply to the Covered Entity in the performance of
such obligations.
2.9.
Availability of Internal Practices, Books, and Records to Government. Business Associate
agrees to make its internal practices, books and records relating to the Use and Disclosure of
Covered Entity’s PHI available to the Secretary for purposes of determining Covered Entity’s
compliance with HIPAA, the HIPAA Regulations, and the HITECH Act.
ARTICLE III
OBLIGATIONS OF COVERED ENTITY
3.1.
Covered Entity shall notify Business Associate of any limitation(s) in the Notice of Privacy
Practices of Covered Entity under 45 C.F.R. § 164.520, to the extent that such limitation may affect
Business Associate’s Use or Disclosure of PHI.
3.2.
Covered Entity shall notify Business Associate of any changes in, or revocation of, the
permission by an individual to Use or Disclose his or her PHI, to the extent that such changes may
affect Business Associate’s Use or Disclosure of PHI.
3.3.
Covered Entity shall notify Business Associate of any restriction on the Use or Disclosure of PHI
that covered entity has agreed to or is required to abide by under 45 C.F.R. § 164.522, to the extent
that such restriction may affect Business Associate’s Use or Disclosure of PHI.
3.4.
Covered Entity agrees to obtain any consent or authorization that may be required under HIPAA
or any other applicable law and/or regulation prior to furnishing Business Associate with PHI.
3.5.
Covered Entity shall not request Business Associate to make any Use or Disclosure of PHI that
would not be permitted under HIPAA if made by Covered Entity.
3.6.
Covered Entity agrees to fulfill its obligations under this BAA in a timely manner.
ARTICLE IV
TERM AND TERMINATION
4.1. Term
The term of this BAA shall be effective as of the Effective Date and shall terminate as of the date
that all of the PHI provided by Covered Entity to Business Associate, or created or received by
Business Associate on behalf of Covered Entity, is destroyed or returned to Covered Entity, or, if it is
infeasible to return or destroy the PHI, protections are extended to such information.
4.2. Termination for Cause
Upon Covered Entity’s or Business Associate’s knowledge of a material breach or violation of this
BAA by the other Party, the non-breaching Party shall either:
A.
Notify breaching Party of the breach in writing, and provide an opportunity for breaching
Party to cure the breach or end the violation within thirty (30) business days of such notification;
provided that if breaching Party fails to cure the breach or end the violation within such time
period to the satisfaction of non-breaching Party, non-breaching Party may immediately
terminate this BAA upon written notice to Business Associate; or
B.
Upon thirty (30) business days written notice to Business Associate, immediately terminate
this BAA if Covered Entity determines that such breach cannot be cured.
4.3. Disposition of Protected Health Information Upon Termination or Expiration.
A.
Upon termination or expiration of this BAA, Business Associate shall either return or destroy
all PHI received from, or created or received by Business Associate on behalf of Covered
Entity, that Business Associate still maintains in any form and retain no copies of such PHI.
B.
If return or destruction is not feasible, Business Associate shall continue to extend the
protections of this BAA to the PHI for as long as Business Associate retains the PHI and limit
further Uses and Disclosures of such PHI to those purposes that make the return or destruction
of the PHI infeasible.
ARTICLE V
MISCELLANEOUS
5.1. Relationship to Underlying Agreement Provisions.
In the event that a provision of this BAA is contrary to a provision of an Underlying Agreement, the
provision of this BAA shall control. Otherwise, this BAA shall be construed under, and in accordance
with, the terms of such Underlying Agreement, and shall be considered an amendment of and
supplement to such Underlying Agreement, subject to Section 5.2 below.
5.2. Notices.
Any notices required or permitted to be given hereunder by either Party to the other shall be given in
writing: (1) by personal delivery; (2) by electronic mail or facsimile with confirmation sent by United
States first class registered or certified mail, postage prepaid, return receipt requested; (3) by
bonded courier or by a nationally recognized overnight delivery service; or (4) by United States first
class registered or certified mail, postage prepaid, return receipt, in each case, if addressed to
AZOVA at 144 S. Main St., Alpine, Utah, 84004, and if to Covered Entity, to the address it provides
to Customer. Notices shall be deemed received on the earliest of personal delivery; upon delivery by
electronic facsimile with confirmation from the transmitting machine that the transmission was
completed; twenty-four (24) hours following deposit with a bonded courier or overnight delivery
service; or seventy-two (72) hours following deposit in the U.S. mail as required herein.
5.3. No Third Party Beneficiaries.
Nothing expressed or implied in this BAA or the Underlying Agreement is intended to confer, nor will
it confer, upon any person any rights, remedies, obligations or liabilities other than those explicitly
detailed in this BAA or in the Underlying Agreement.
5.4. Relationship of Parties.
Notwithstanding anything to the contrary in any Underlying Agreement, Business Associate is an
independent contractor and not an agent of Covered Entity under this BAA. Business Associate has
the sole right and obligation to supervise, manage, contract, direct, procure, perform or cause to be
performed all Business Associate obligations under this BAA.
5.5. Amendment.
To the extent applicable, amendments or modification to HIPAA or the HITECH Act may require
amendments to certain provisions of this BAA. Amendments shall only be effective if executed in
writing and signed by a duly authorized representative of each party.
5.6. Interpretation.
To the extent that the terms of this BAA are not clear in satisfying the parties’ intention to comply
with the applicable requirements of HIPAA, the HIPAA Regulations, and the HITECH Act, these BAA
terms shall be construed so as to allow for compliance by both parties with the applicable
requirements of HIPAA, the HIPAA Regulations, and the HITECH Act.
The Parties hereto have executed this BAA as of the Effective Date.
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