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USER AGREEMENT AND AUTHORIZATION FOR USE OF MY INFORMATION BY WELLNESSFX, INC.
IMPORTANT: PLEASE READ THIS AGREEMENT CAREFULLY BEFORE ACCEPTING.
By accepting, you are indicating that you have read and understand this User Agreement (this "Agreement") , and are agreeing to the following terms as an agreement between you as a subscriber of the online services of WellnessFX, Inc. ("WellnessFX") and WellnessFX, and your acceptance is your indication that you assent to be bound by this Agreement. You are referred to in the following agreement as "I" or "me."
As a condition to my subscription to and my right to use WellnessFX Services defined below, WellnessFX and I agree as follows:
1. Access to WellnessFX Services. WellnessFX operates an online wellness service and manages a network system facilitating and enabling its subscribers ("Subscribers") to identify, engage, communicate with, and pay healthcare providers ("Health Advisors") to obtain laboratory diagnostic testing and medical advice regarding the results of such diagnostic tests and other wellness-oriented advice (the "WellnessFX Services"). The network system is a service intended to assist Subscribers by connecting them to Health Advisors, it is not a medical device and WellnessFX does not directly or indirectly practice medicine, nor does it dispense medical advice, diagnosis, treatment or any other medical service as part of the WellnessFX Services. Subject to the terms of this Agreement and my payment of the Services Fees (defined below), during the term of my subscription, WellnessFX grants me a non-sublicensable, non-transferable, non-exclusive subscription to access and use WellnessFX Services solely for my personal wellness, and not for resale or to provide services to third parties.
I agree that I will not, and will not attempt to: (a) interfere in any manner with the operation of WellnessFX Services, or the hardware and network used to operate WellnessFX Services; (b) sublicense or transfer any of my rights under this Agreement or otherwise use WellnessFX Services for the benefit of a third party or to operate a service bureau; (c) modify, copy or make derivative works based on any part of WellnessFX Services; (d) create Internet "links" to or from WellnessFX Services, or "frame" or "mirror" any of WellnessFX content which forms part of WellnessFX Services; or (e) otherwise use WellnessFX Services in any manner that exceeds the scope of use granted above. I agree to comply with the WellnessFX Services System Rules posted from time to time at www.WellnessFX.com or any web page accessed through that site.
I understand that there are risks presented by participating in using WellnessFX Services including receipt by me of information about my health (such as genetic or metabolic characteristics) that I would prefer not to know, and which may indicate conditions or problems that may be upsetting to me or even incurable, and I assume those risks.
2. Primary Care Physician. I represent and warrant that I am in good health, have had a recent health checkup, and have and will maintain a primary care physician, and I understand and agree that use of WellnessFX and Health Advisors is not a substitute for seeking the advice of my primary care physician or other qualified health care professionals. I agree that I will never delay seeking advice from my primary care physician or other health professionals due to information provided through WellnessFX or Health Advisors. I will seek emergency help when needed, and continue to consult with my primary care physician as recommended by Health Advisors and by my primary care physician.
3. Changes . WellnessFX Services, and the business, development and activities of WellnessFX, are subject to change during my subscription as determined from time to time by WellnessFX in its discretion. WellnessFX has no obligations to create or include additional features or functionality for WellnessFX Services or correct any errors. WellnessFX may modify the terms of this Agreement on at least 30 days notice, and if I do not accept such modified terms I agree that I may cancel my subscription, but if I do not cancel my subscription, I agree that I am bound to such modification.
4. Registration and Health Information . I have provided or will provide to WellnessFX personal information that may include my name, address, telephone number, fax number, email address, insurance information, and other information required by WellnessFX to register me as a Subscriber ("Registration Information "), and medical history, behavioral information, nutritional information and other health, family and personal background information (" Health Information"). Health Information that does not include any personally identifying information such as my name, the names of my health care providers and relatives, is my "De-Identified Information." I understand that I can update or revise my Registration Information and Health Information through a process available on WellnessFX website. I represent and warrant that (i) my Registration Information and Health Information will at all times be true, accurate and complete, and (ii) I am the person whose name and information I have provided and (iii) I am an adult 18 years of age or older residing in the United States.
5. Use of Services . Genetic, metabolic and other diagnostic testing by clinical laboratories ("Testing Laboratories") will be performed independent of WellnessFX Services and ordered by Subscribers in accordance with applicable state laws. I will submit samples to Testing Laboratories through a process established by Testing Laboratories and coordinated by WellnessFX from time to time, and I agree to execute waivers and authorizations that may be provided to me at the time my samples are collected. The samples I submit to Testing Laboratories may include blood, saliva, hair and other biological samples and are referred to as my"Laboratory Samples." I will not submit my Laboratory Samples directly to WellnessFX. I understand that diagnostic testing on my Laboratory Samples may be ordered by my Health Advisor at their discretion and the results will be received by my Health Advisor. Upon my execution of the proper consent and HIPAA Authorization, the results from such testing ("Testing Results") will also be sent to WellnessFX by Testing Laboratories to provide certain WellnessFX Services. I may also purchase other goods and services from third parties made available to me by WellnessFX (" Goods and Services").
6. Third Party Programs . I may subscribe for certain WellnessFX Services and Goods and Services through a program sponsored by a third party such as my employer, a group to which I belong or other third party. I understand that my subscription and participation through such program will be subject to the terms of such program, which may include provision to a third party administrator, your employer or other group information about me, including whether and to what extent I have participated. WellnessFX will not provide information regarding my health in a form that can be identified to me, without my specific approval through a click through or other “opt-in” mechanism.
7. Feedback . I may in my discretion choose to provide written or verbal feedback, comments, or input to WellnessFX relating to current or future WellnessFX Services or other opportunities for WellnessFX ("Feedback"). I hereby assign to WellnessFX all right, title and interest in any Feedback, including any Intellectual Property Rights (defined below) therein.
8. Costs and Payments . I acknowledge and agree that I will be responsible for all applicable fees for WellnessFX Services and the Goods and Services I purchase (the fees for WellnessFX Services are the "Services Fees") and for any applicable cancelation fees for cancelation of appointments without the required advance notice. Services Fees are established and subject to modification by WellnessFX from time to time as determined by WellnessFX. I understand that WellnessFX will bill me for all Services Fees and for all Goods and Services, and I will pay such invoices when they are due. WellnessFX may bill me in advance and may provide WellnessFX Services and Goods and Services only after I pay my outstanding bills. I acknowledge that the Services Fees do not include and I will be fully responsible for all charges for goods and services provided by Health Advisors to be established by Health Advisors (“Other Fees”) which will be invoiced to me and paid through the network system managed by WellnessFX. WellnessFX may provide a single invoice for all WellnessFX, Health Advisors and Testing Laboratories services, and I understand that such fees are separate and collected by WellnessFX as an agent or conduit for such Health Advisors and Testing Laboratories. By providing my credit card account information for payment of Services Fees and Other Charges, I represent and warrant that the credit card for which I provide account information is my credit card and I authorize WellnessFX to charge to such credit card all applicable charges for the WellnessFX Services, services of Health Advisors, and Goods and Services I have ordered.
10. No Medical or Health Services . I understand that WellnessFX is not a Health Advisor or a Testing Laboratory, and WellnessFX does not provide medical, health or other professional services or advice, nor does WellnessFX itself perform any testing on my samples to provide Testing Results. WellnessFX brings together Health Advisors and Subscribers while facilitating data gathering and conducting data analyses that may help Health Advisors and Subscribers work together to help Subscribers take a more active role in their well-being. I understand and agree that Health Advisors are not the employees, agents or subcontractors of WellnessFX and not providing services on behalf of WellnessFX, but instead are independent professionals solely responsible for the services each provides to me. WellnessFX does not practice medicine or any other licensed profession, and does not interfere with the practice of medicine or any other licensed profession by Health Advisors, each of whom is responsible for his or her services and compliance with the requirements applicable to his or her profession and license.
11. HIPAA Acknowledgment . I agree to provide a separate HIPAA AUTHORIZATION available at https://wwws.wellnessfx.com/hipaa_authorization before accessing WellnessFX Services, which WellnessFX is authorized to provide to my Health Advisors and Testing Laboratories but I understand that my Health Advisors and Testing Laboratories may require my execution of additional documents authorizing their disclosure of My Information. My Health Advisors and others I authorize will have access to My Information, and WellnessFX may use My Information as provided in this Agreement and my applicable HIPAA Authorization.
12. Limitations . NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, OR FOR DIRECT DAMAGES IN AN AMOUNT GREATER THAN $10,000, EXCEPT FOR A VIOLATION OF SECTION 15. NEITHER WELLNESSFX NOR ITS OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS ARE LIABLE FOR THE ACTIONS OR OMISSIONS OF TESTING LABORATORIES OR HEALTH ADVISORS, AND I HEREBY AGREE THAT I WAIVE ANY AND ALL CLAIMS AGAINST ANY OF THEM ARISING FROM OR RELATING TO THE SERVICES PROVIDED TO ME BY TESTING LABORATORIES OR HEALTH ADVISORS.
13. Termination . Unless earlier terminated pursuant to this Agreement, the term of this Agreement ("Term") will commence upon my checking the "Accept" box and will continue for the period of time I am a subscriber to WellnessFX Services. Either party may terminate this Agreement at any time on written notice with or without any reason. Upon termination:
a. WellnessFX will not thereafter share Registration Information with any other party.
c. My access rights to WellnessFX Services shall terminate.
d. All outstanding fees owed to WellnessFX and/or Health Advisors shall become due and payable.
e. All Sections which by their nature survive termination of this Agreement shall survive.
I understand that, upon termination, I will not receive any refund or partial refund for any charges already billed to my account. I understand and agree that termination of this Agreement is my sole right and remedy with respect to any dispute with WellnessFX. This includes, but is not limited to, any dispute related to, or arising out of: (1) any term of this Agreement or WellnessFX's enforcement or application of this Agreement; (2) any policy or practice of WellnessFX or WellnessFX's enforcement or application of these policies; (3) my ability to access and/or use WellnessFX Services; (4) any WellnessFX software or services provided by or through WellnessFX; or (5) the amount or type of fees, applicable taxes, billing methods, or any change to the fees, applicable taxes, or billing methods.
14. Notices . If there is an actual or suspected breach of the security of My Information, or any unpermitted disclosure or use of My Information, and WellnessFX is required to provide notice of such actual or suspected breach or unpermitted disclosure or use to me under applicable federal or state law I hereby agree that, if allowed by law, such notice may be provided by WellnessFX by email to the email address provided by me during my member registration, or as updated by me thereafter by written notice to WellnessFX.
15. No Warranties . ALL SERVICES AND PRODUCTS PROVIDED BY WELLNESSFX ARE PROVIDED "AS-IS" WITHOUT ANY WARRANTY EXPRESS OR IMPLIED, AND WELLNESSFX DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A SPECIFIC PURPOSE. Without limiting the preceding sentence, I acknowledge and agree that WellnessFX is not responsible for the actions or omissions of my Health Advisors or Testing Laboratories.
16. Ownership. WellnessFX owns all right, title and interest to its software, processes, methodologies, documents and other materials, and all patent, copyright, trademark, and other rights of any nature arising from or relating in any way thereto ("Intellectual Property Rights"). No right to the Intellectual Property Rights of WellnessFX is granted to me except to permit me to use WellnessFX Services as a Subscriber.
17. Severability. Any provision of this Agreement determined to be void, invalid or unenforceable will be deemed modified to the minimum extent necessary to be effective, valid and enforceable, and the other provisions of this Agreement will in full force and effect and enforceable according to their terms.
19. Binding Arbitration and Equitable Relief . Any dispute arising under or relating in any way to this Agreement will be resolved exclusively by final and binding arbitration in San Francisco, California under the rules of the American Arbitration Association, except as set forth in the next sentence. Pending resolution by such final and binding arbitration, either party is entitled to seek temporary and preliminary specific performance and injunctive relief in any court of competent jurisdiction, without the posting of bond or other security, and the parties agree to the personal and subject matter jurisdiction and venue of the courts located in San Francisco, California, for any such action.
HIPAA Privacy Authorization Form
Authorization for Use or Disclosure of Protected Health Information (Required by the Health Insurance Portability and Accountability Act – 45 CFR Parts 160 and 164 and California Civ. Code § 56.11)
I hereby authorize all health care providers (“Health Advisors”) and testing laboratories (“Testing Labs”) that provide services to me in connection with my subscription to services provided by WellnessFX, Inc. (“WellnessFX”) to use and/or disclose the protected health information described below to WellnessFX as follows.
Authorization for Release of Information. I hereby authorize the release of my complete health record contained in my account with WellnessFX (including without limitation all Health Advisor notes and diagnoses and Testing Labs results and the information I have contributed to my health record contained within my account), covering all past, present and future periods,
This health information may be used by WellnessFX in order to provide the WellnessFX services that I subscribed to and for any other uses that I consent to from time to time pursuant to the policies and agreements applicable to my subscription to services provided by WellnessFX.
This authorization shall be in force and effect until I revoke it in accordance with the terms below.
I understand that I have the right to revoke this authorization at any time by providing written notice to email@example.com. I understand that a revocation is not effective to the extent that any person or entity has already acted in reliance on my authorization or if my authorization was obtained as a condition of obtaining insurance coverage and the insurer has a legal right to contest a claim. I further understand that, upon my revocation, my Health Advisors and Testing Labs will no longer be able to disclose my health information to WellnessFX, and that the WellnessFX services therefore will no longer be available to me.
I understand that my treatment, payment, enrollment or eligibility for benefits will not be conditioned on whether I sign this authorization. However, I understand that failure to provide this authorization will prevent my Health Advisors and Testing Labs from disclosing my health information to WellnessFX, and that the WellnessFX services therefore will not be available to me.
I understand that information used or disclosed pursuant to this authorization may be disclosed by the recipient and may no longer be protected by federal or state law.
I understand I have the right to receive a copy of this authorization by sending a written request to firstname.lastname@example.org.
Administrative Data Sharing Agreement
I understand that in accordance with my employer/union sponsored health plan in connection with which I am joining, WellnessFX, the administrators of that program Delta Fund Administrators (DFA), and Delta Health Systems (DHS), are a covered entity under HIPAA, and I agree that information I submit to WellnessFX or that is provided to WellnessFX for me such as laboratory tests is intended both for WellnessFX as part of my account with WellnessFX and for DFA and DHS in connection with that program and may be shared by WellnessFX with DFA and DHS for their purposes relating to administration of my employer/union sponsored health plan. No data regarding test results are being shared with any employer or local union.
NOTICE REGARDING WELLNESS PROGRAM
WellnessFX, in conjunction with your employer, is administering a voluntary wellness program available to all employees. The program is administered according to federal rules permitting employer-sponsored wellness programs that seek to improve employee health or prevent disease, including the Americans with Disabilities Act of 1990, the Genetic Information Nondiscrimination Act of 2008, and the Health Insurance Portability and Accountability Act, as applicable, among others. If you choose to participate in the wellness program you will be asked to complete a voluntary health risk assessment or "HRA" that asks a series of questions about your health-related activities and behaviors and whether you have or had certain medical conditions (e.g., cancer, diabetes, or heart disease). You will also be asked to complete a biometric screening, which will include a blood test for common indicators of risk including, but not limited to, LDL and HDL Cholesterol, Glucose, Insulin, and White and Red blood cell profiles.You are not required to complete the HRA or to participate in the blood test or other medical examinations.
However, employees who choose to participate in the wellness program may receive an incentive at the discretion of and determined by your employer. Although you are not required to complete the HRA or participate in the biometric screening, only employees who do so may receive the incentive.
Additional incentives may be available for employees who participate in certain health-related activities or achieve certain health outcomes determined by your employer. If you are unable to participate in any of the health-related activities or achieve any of the health outcomes required to earn an incentive, you may be entitled to a reasonable accommodation or an alternative standard. You may request a reasonable accommodation or an alternative standard by contacting your HR department.
The information from your HRA and the results from your biometric screening will be used to provide you with information to help you understand your current health and potential risks, and may also be used to offer you services through the wellness program, such as tele-medicine consultations with practitioners from the WellnessFX network. You also are encouraged to share your results or concerns with your own doctor.
Protections from Disclosure of Medical Information
We are required by law to maintain the privacy and security of your personally identifiable health information. Although the wellness program and your employer may use aggregate information it collects to design a program based on identified health risks in the workplace, WellnessFX will never disclose any of your personal information either publicly or to the employer, except as necessary to respond to a request from you for a reasonable accommodation needed to participate in the wellness program, or as expressly permitted by law. Medical information that personally identifies you that is provided in connection with the wellness program will not be provided to your supervisors or managers and may never be used to make decisions regarding your employment.
Your health information will not be sold, exchanged, transferred, or otherwise disclosed except to the extent permitted by law to carry out specific activities related to the wellness program, and you will not be asked or required to waive the confidentiality of your health information as a condition of participating in the wellness program or receiving an incentive. Anyone who receives your information for purposes of providing you services as part of the wellness program will abide by the same confidentiality requirements. The only individual(s) who will receive your personally identifiable health information is (are) physicians, licensed healthcare practitioners or health coaches, in order to provide you with services under the wellness program.
In addition, all medical information obtained through the wellness program will be maintained separate from your personnel records, information stored electronically will be encrypted, and no information you provide as part of the wellness program will be used in making any employment decision.Appropriate precautions will be taken to avoid any data breach, and in the event a data breach occurs involving information you provide in connection with the wellness program, we will notify you immediately.
You may not be discriminated against in employment because of the medical information you provide as part of participating in the wellness program, nor may you be subjected to retaliation if you choose not to participate.
If you have questions or concerns regarding this notice, or about protections against discrimination and retaliation, please contact your HR Department.
THORNE NETWORK PROVIDER AGREEMENT
IMPORTANT: PLEASE READ THIS AGREEMENT CAREFULLY BEFORE CHECKING THE BOX.
By checking the box, you are indicating that you have read and understand this Thorne Network Provider Agreement (this "Agreement"), and are agreeing to the following terms as an agreement between you as a provider of wellness-oriented healthcare advice and WellnessFX, Inc. ("WellnessFX"), and your checking the box is your indication that you assent to be bound by this Agreement. You are referred to in this Agreement as "Provider." This Agreement shall be effective as of the date upon which you check the box (the "Effective Date").
A. WellnessFX operates an online wellness service enabling its members ("Members") to purchase laboratory diagnostics, report their health history and engage healthcare providers to obtain advice regarding the results of such diagnostics and other wellness-oriented healthcare advice.
B. Provider is a healthcare services provider and a member of the Thorne Network who desires to use the WellnessFX Wellness and Patient Engagement Platform for his or her patients.
NOW THEREFORE, in consideration of the foregoing, and the following provisions, the parties agree as follows:
Rules. WellnessFX will during the Term promulgate rules applicable to Authorized Providers ("Provider Rules") by posting Provider Rules on the Authorized Provider portion of the WellnessFX website or by delivery by email to Provider, which are incorporated and made part of this Agreement to the extent applicable to Thorne Network providers. Provider Rules, including changes to Provider Rules, are effective thirty (30) days after posting or delivery, except that Provider Rules and changes to Provider Rules required in the determination of WellnessFX for compliance with applicable laws, regulations, codes, ordinances and other binding government requirements of any nature ("Laws"), security or other exigencies will be effective as of the date designated by WellnessFX. Provider will comply with all Provider Rules applicable to Thorne Network providers. Provider acknowledges that Provider will only be able to use the WellnessFX System for Provider Patients.
Relationship. Provider is an independent healthcare provider using the WellnessFX System, and is not an employee, contractor, partner, joint venturer or agent of or with WellnessFX, and has no authority to act on behalf of or bind WellnessFX in any way. WellnessFX is not licensed to provide, and does not provide, any healthcare services. WellnessFX operates the WellnessFX System as a proprietary platform and community through which Members can become educated about themselves and their health and obtain advice from healthcare providers regarding their wellness issues. Provider will maintain a direct patient relationship with each Provider Patient, and Provider is solely responsible for his or her relationship with each Provider Patient. This Agreement is a contract between WellnessFX and Provider personally. Provider will not assign or delegate any of his or her rights or obligations under this Agreement, and any attempted assignment or delegation is void and a breach of Provider's obligations under this Agreement.
Professional Services. Provider is solely responsible for determining the requirements of applicable Laws regarding the healthcare profession in which Provider is engaged, for determining what licenses and permits are required for Provider's provision of healthcare services, and for complying with all Laws applicable to the provision of services by healthcare professionals in such profession ("Healthcare Services") in all jurisdictions where Provider provides Healthcare Services, as determined by applicable Laws. These Laws may include restrictions on the scope of Healthcare Services, prohibitions on fee splitting or other requirements regarding fees for Healthcare Services, prohibitions on ownership in WellnessFX or the laboratories used by WellnessFX, requirements relating to or prohibitions on the provision of telemedicine or online Healthcare Services, the privacy and security of patient information, and many other Laws. Provider will notify WellnessFX in writing immediately if any applicable Laws conflict with the provisions of this Agreement or require additional provisions or changes to Provider Rules or the WellnessFX website or other items, and upon such notice the parties will discuss the matter. If the parties are unable otherwise to address any such matter for which Provider has provided notice to WellnessFX, either party may immediately terminate this Agreement under Section 15.
Scope of Services. Services provided through the WellnessFX System are not intended to replace primary care physician ("PCP") relationship with Provider Patients. If Provider is not the Provider Patient's PCP, Provider will augment the healthcare services obtained by the Provider Patient from his or her PCP or other healthcare providers by providing wellness-oriented Healthcare Services (the "Wellness Healthcare Services").
a. Laboratory Testing. Provider may recommend laboratory testing for his or her Provider Patients from the tests made available through the WellnessFX System, as set forth in the Provider Rules. Provider understands that all laboratory testing is ordered by an ordering physician engaged by WellnessFX and the results of such testing is released by a physician engaged by WellnessFX.
b. Supplements. Provider may provide recommendations for the use of vitamins and other supplements when appropriate, some or all of which may be available for ordering through the WellnessFX System, but Provider will make his or her own professional judgment in making such recommendations without regard to the WellnessFX System or WellnessFX practices or procedures.
c. Emergencies. Provider will immediately refer the Provider Patient to an emergency room or ambulance where Provider determines that the situation requires immediate attention; Wellness Healthcare Services do not include any emergency or urgent care.
Licensing and Certification. Provider will at all times during the Term hold in full force and effect a valid license to provide Healthcare Services if required, and satisfy all requirements imposed by applicable Laws for each such license. Provider will immediately notify WellnessFX in writing if there is any change in such license status. Provider will maintain in good standing any certifications Provider lists on his or her description in the WellnessFX System. If requested by WellnessFX, Provider will provide WellnessFX with documents demonstrating the then current validity of his or her professional license(s) and other information required by WellnessFX. Provider agrees that WellnessFX may use and disclose personal information about Provider as it determines for its business purposes, including making inquiry of third parties concerning Provider's identity and professional and practice credentials and submitting reports to applicable regulatory authorities if WellnessFX determines to do so.
Use of WellnessFX System. Provider will use the WellnessFX System solely to provide WellnessFX Healthcare Services in accordance with this Agreement and the WellnessFX System rules ("WellnessFX System Rules"), which are incorporated into and made part of this Agreement. WellnessFX may modify the WellnessFX System Rules during the Term by posting the revised WellnessFX System Rules on the WellnessFX website or by delivery by email to Provider. Any changes to the WellnessFX System Rules are effective thirty (30) days after posting or delivery, except that changes to the WellnessFX System Rules required in the determination of WellnessFX for compliance with Laws or security or other exigencies will be effective as of the date designated by WellnessFX.
Fees and Payment. The WellnessFX System is provided to facilitate interactions between Provider Patients and Provider. The Provider Patient will pay for laboratory testing pursuant to the rules and requirements of WellnessFX. Provider is solely responsible for billing and collecting fees from Provider Patients for all services rendered by Provider, and will do so outside of the WellnessFX System and in accordance with all applicable Laws and Provider's standard practices.
Taxes, Business Licenses and Registrations. WellnessFX provides a platform to facilitate Members' engagement with their health data; WellnessFX does not provide Wellness Health Services. Consequently, Provider is responsible for maintaining all licenses and registrations relating to Provider's provision of Wellness Health Services in each applicable state and local jurisdiction, and for the payment of any sales, use, value add or other taxes and fees assessed by any government agency on the provision of Wellness Health Services by Provider, or the payment by Provider Patients for such Wellness Health Services or the receipt of such payment by Provider. Provider is also responsible for any franchise, business, occupation or other taxes or government fees of any nature based on the provision by Provider of Wellness Health Services. All taxes and government fees based on or relating in any way to the provision by Provider of Wellness Health Services, or the payment by Provider Patients for Wellness Health Services (including payment by WellnessFX to Provider after receipt of such payment from Provider Patients) are collectively "Services Taxes." Provider will timely and accurately pay all Services Taxes.
Representations and Warranties. Provider represents and warrants during the Term that (a) Provider will maintain valid licensure in such profession(s) and jurisdiction(s) as necessary to provide Wellness Healthcare Services to Provider Patients and will fully comply with the provisions of Section 6 at all times, (b) Provider will comply with all Laws applicable to Provider and Provider's provision of Wellness Healthcare Services and will comply fully with the security provisions of Section 11, (c) Provider will promptly notify WellnessFX of any disciplinary or legal action brought against Provider by any licensing agency, any organization granting Provider any certification or credential of any nature, or any hospital or other entity providing Provider with the right to perform Healthcare Services at any location or in any manner, of any claim brought against Provider by a Provider Patient or another Authorized Provider, or of any violation of the Member Rules, Provider Rules or WellnessFX System Rules of which Provider becomes aware, (d) Provider will provide all Provider information requested by WellnessFX, and will ensure that all Provider information provided to WellnessFX is at all times true, complete and not misleading, (e) any information or advice provided as part of the Wellness Healthcare Services to Provider Patients will be accurate and in accordance with the applicable professional standard of care, and will not contain any information, advice or instructions which, if relied upon, would cause harm, personal injury or property damage; (f) Provider will perform all obligations under this Agreement in a professional manner and in accordance with the standards applicable to healthcare professionals in Provider's profession, and (g) compliance by Provider with the terms of this Agreement will not violate any duty which Provider has under Law or to any other person or entity, and Provider will not do anything that would violate any such duty. ALL SERVICES AND PRODUCTS PROVIDED BY WELLNESSFX ARE PROVIDED "AS-IS" WITHOUT ANY WARRANTY EXPRESS OR IMPLIED, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WELLNESSFX DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, NON-INTERFERENCE AND/OR QUIET ENJOYMENT, SYSTEM INTEGRATION, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND DATA ACCURACY. WELLNESSFX AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (i) THE USE OF THE WELLNESSFX SYSTEM WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (ii) THE WELLNESSFX SYSTEM WILL MEET PROVIDER OR PATIENT REQUIREMENTS OR EXPECTATIONS, (iii) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED THROUGH THE WELLNESSFX SYSTEM WILL MEET PROVIDER OR PATIENT REQUIREMENTS OR EXPECTATIONS, (v) ERRORS OR DEFECTS WILL BE CORRECTED, OR (vi) THE WELLNESSFX SYSTEM OR THE SERVER(S) THAT MAKE THE SYSTEM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. WITHOUT LIMITING THE PRECEDING TWO SENTENCES, PROVIDER ACKNOWLEDGES AND AGREES THAT WELLNESSFX IS NOT RESPONSIBLE FOR THE ACTIONS OR OMISSIONS OF THE LABORATORIES USED TO PROVIDE TESTING, OTHER AUTHORIZED PROVIDERS, PROVIDER PATIENTS OR ANY OTHERS USING THE WELLNESSFX SYSTEM.
PROVIDER ACKNOWLEDGES THAT WELLNESSFX MAKES NO WARRANTIES UNDER THIS AGREEMENT FOR THE BENEFIT OF ANY USER OR PATIENT, AND THAT ANY WELLNESSFX OBLIGATIONS UNDER THIS AGREEMENT ARE FOR THE BENEFIT OF PROVIDER ONLY.
THE WELLNESSFX SYSTEM IS A SERVICE INTENDED TO ASSIST MEMBERS BY CONNECTING THEM TO HEALTHCARE PROVIDERS; IT IS NOT A MEDICAL DEVICE. THE INFORMATION PROVIDED THROUGH THE WELLNESSFX SYSTEM MAY NOT BE COMPLETE OR COMPREHENSIVE. THE WELLNESSFX SYSTEM SHOULD AT ALL TIMES BE USED IN ASSOCIATION WITH OTHER TOOLS, PROCEDURES AND COMMUNICATION, AND PROVIDERS SHOULD NOT RELY SOLELY ON THE INFORMATION OBTAINED THROUGH THE WELLNESSFX SYSTEM IN GIVING ADVICE, REFERRALS OR INFORMATION. PROVIDERS SHOULD NOT RELY ON THE INFORMATION PROVIDED THROUGH THE WELLNESSFX SYSTEM WITHOUT FIRST VERIFYING THE ACCURACY AND COMPLETENESS OF SUCH INFORMATION BOTH WITH THE PROVIDER PATIENT AND AGAINST THE ORIGINAL RECORD OF SUCH INFORMATION, WHERE APPROPRIATE. THE USE OF ANY INFORMATION PROVIDED THROUGH THE WELLNESSFX SYSTEM IS SOLELY AT THE USER'S OWN RISK. ACCESS OR USE OF THE WELLNESSFX SYSTEM DOES NOT CREATE IN ANY WAY A PHYSICIAN/PATIENT, CONFIDENTIAL, OR PRIVILEGED RELATIONSHIP BETWEEN WELLNESSFX AND ANY USER, PROVIDER OR PATIENT, OR ANY OTHER RELATIONSHIP THAT WOULD GIVE RISE TO ANY DUTIES ON WELLNESSFX'S PART.
Security. Provider will implement, maintain and operate appropriate physical, technical and operational safeguards to ensure the confidentiality and security of Confidential Information and all personnel, systems, and administrative processes used by Provider to transmit, store and process information through the use of the WellnessFX System, including those required by this Agreement, HIPAA (defined below) and other applicable Laws. Provider will be responsible for the security of all passwords and other access protocols required in order to access the WellnessFX System ("Access Protocols") and will notify WellnessFX immediately of any unauthorized use of any password or account or any other known or suspected breach of security.
Ownership. As between Provider and WellnessFX, WellnessFX and its licensors retain all right, title and interest to the WellnessFX System and its software, processes, methodologies, documents and other materials, and all patent, copyright, trade secret, confidentiality, and other rights of any nature arising from or relating in any way thereto ("Intellectual Property Rights"). No right to the Intellectual Property Rights of WellnessFX is granted to Provider except to permit Provider during the Term to use the WellnessFX System as an Authorized Provider in accordance with the terms and provisions of this Agreement. Provider may assist WellnessFX in improving the WellnessFX System or developing new systems, techniques, methods, procedures, concepts and other inventions, and to the extent that Provider jointly or solely conceives, develops, reduces to practice, or provides to WellnessFX, any ideas, inventions, original works of authorship, developments, concepts, know-how, modifications, improvements or trade secrets, whether or not patentable or registrable under copyright or similar laws, in any case that relate to the business or plans of WellnessFX, Provider hereby assigns to WellnessFX all of his or her rights, titles and interest to such ideas, inventions, original works of authorship, developments, concepts, know-how, modifications, improvements and trade secrets, and the Intellectual Property Rights therein.
Health and Other Personal Information. WellnessFX is not a "covered entity" as defined in the Health Insurance Portability and Accountability Act ("HIPAA"). However, if Provider is a "covered entity" that is subject to the provisions of HIPAA pursuant to 45 CFR 103, Provider will comply with the requirements of HIPAA and all other Laws governing personal health, financial and other information, and understands that health, financial and other personal information of Provider Patients is Confidential Information hereunder. To the extent that WellnessFX is a business associate under HIPAA, it will comply with the requirements of HIPAA applicable to it pursuant to the WellnessFX Business Associate Agreement.
Term. The term of this Agreement ("Term") begins on the Effective Date and continues for an initial period through the end of the following calendar month, and thereafter renews for successive one (1) month periods until either party provides written notice of nonrenewal or terminates this Agreement.
Termination. Either party may terminate this Agreement at any time on written notice with or without any reason. Upon termination:
a. Provider will have no further right to use the WellnessFX System.
b. The provisions of this Agreement in the following Sections will survive termination and continue to apply thereafter: 1, 9-13, and 15-20.
Responsibility and Indemnity. Provider is solely responsible for all Wellness Healthcare Services and all communications with Provider Patients. Provider, not WellnessFX, will have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all information stored or entered on the WellnessFX System by Provider, and WellnessFX will not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any such information. WellnessFX does not guarantee the accuracy of information within the WellnessFX System, and Provider should not rely on information obtained through the Provider Patient records within the WellnessFX System unless such information has been separately verified by the patient or through the original record of such information. Provider will indemnify, defend and hold harmless WellnessFX and its officers, directors, employees, contractors, agents, representatives, attorneys and assigns from any claims, proceedings, losses, damages, and expenses, including reasonable attorneys fees, incurred as a result of any claim by a third party arising from or relating to (a) Provider's provision or alleged provision of Healthcare Services, (b) any breach by Provider of this Agreement, (c) the negligent or intentional acts or omissions of Provider or its agents, or (d) the actions of any person gaining access to the WellnessFX System under Access Protocols assigned to Provider.
Limitations. PROVIDER ACKNOWLEDGES THAT THE WELLNESSFX SYSTEM MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. WELLNESSFX IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. IN NO EVENT WILL WELLNESSFX OR ANY OF WELLNESSFX'S, AGENTS OR REPRESENTATIVES BE LIABLE TO PROVIDERS, USERS OR PATIENTS OR ANY THIRD PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, LOSS OF DATA, LOST PROFITS OR LOST OPPORTUNITIES IN ANY WAY RELATING TO THIS AGREEMENT OR RESULTING FROM THE USE OF OR INABILITY TO ACCESS THE WELLNESSFX SYSTEM, EVEN IF WELLNESSFX HAS BEEN NOTIFIED OF, OR REASONABLY COULD HAVE FORESEEN, THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES OCCURRING, AND REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, PRODUCTS LIABILITY OR OTHERWISE. IN NO EVENT WILL WELLNESSFX'S CUMULATIVE LIABILITY FOR ANY DAMAGES TO PROVIDER OR ANY THIRD PARTY ARISING UNDER OR RELATING TO THIS AGREEMENT EVER EXCEED THE TOTAL AMOUNT OF ALL FEES THEN-PAID TO PROVIDER UNDER THIS AGREEMENT DURING THE TWELVE (12)-MONTH PERIOD IMMEDIATELY PRIOR TO THE EVENT, ACT OR OMISSION GIVING RISE TO SUCH LIABILITY REGARDLESS OF THE FORM OF ACTION, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, PRODUCTS LIABILITY OR OTHERWISE. PROVIDER ACKNOWLEDGES THAT THE TERMS HEREIN REFLECT THE ALLOCATION OF RISK BETWEEN PROVIDER AND WELLNESSFX AND THAT WELLNESSFX WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY. THESE LIMITATIONS UPON DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE. IN NO EVENT WILL WELLNESSFX HAVE ANY LIABILITY DIRECTLY TO ANY PATIENT OR ANY OTHER THIRD PARTY UNDER THIS AGREEMENT.
Severability and Savings Clause. The parties recognize that the Laws applicable to their relationship are complex and changing, and they intend to comply with all such Laws. Therefore, any provision of this Agreement that is void, invalid or unenforceable will be deemed modified to the minimum extent necessary to be effective, valid and enforceable, and the other provisions of this Agreement will in full force and effect and enforceable according to their terms.
Additional Terms. Except for the Provider Rules or the WellnessFX System Rules, which may be created or modified by WellnessFX as described herein, any term of this Agreement may be amended or waived only with the written consent of the parties. This Agreement, including the documents and provisions referred to herein, constitutes the sole agreement of the parties and supersedes all prior agreements, understandings, representations and communications with respect to the use of the WellnessFX System by Provider and the provision of Healthcare Services by Provider to Members. Any notice required or permitted by this Agreement will be in writing and will be deemed sufficient upon receipt when delivered personally, by email, or by courier, overnight delivery service or confirmed facsimile, forty eight (48) hours after being deposited in the regular mail as certified or registered mail with postage prepaid, if such notice is addressed to the party to be notified at such party's address set forth below, or as subsequently modified by written notice. The validity, interpretation, construction and performance of this Agreement will be governed by the laws of the State of California, without giving effect to the principles of conflict of laws. The term "including" means by way of example and not limitation.
Binding Arbitration and Equitable Relief. Any dispute arising under or relating in any way to this Agreement will be resolved exclusively by final and binding arbitration in San Francisco, California under the rules of the American Arbitration Association, except as set forth in the next sentence. The parties agree that any violation of the following Sections will cause the non-breaching party irreparable harm for which monetary damages are an inadequate remedy, and in addition to any other remedy available in arbitration, for any violation of the following Sections, the non-breaching party is entitled to obtain specific performance and injunctive relief in any court of competent jurisdiction, without the posting of bond or other security, or if required, then the minimum bond or security so required, and the parties agree to the personal and subject matter jurisdiction and venue of the courts located in San Francisco, California, for any such action: 2 - 4, 6 - 9, 11 - 13, 15, 16, 19 and 20.
Online Services Business Associate Addendum
This Business Associate Addendum ("Addendum") amends the Provider Agreement ("Provider Agreement") between WellnessFX, Inc. ("WellnessFX") and each Provider for which WellnessFX acts as a business associate as defined in HIPAA, and is effective as of first date WellnessFX serves as such a business associate.
The parties desire that their rights and responsibilities under the Agreement reflect the requirements relating to the access, use and disclosure of health information in the Standards for Privacy of Individually Identifiable Health Information, and the Security Standards, collectively codified at 45 C.F.R. Parts 160, 162 and 164 (respectively the "Privacy Standards" and "Security Standards") under the Health Insurance Portability and Accountability Act of 1996 ("HIPAA") and Subtitle D of the American Recovery and Reinvestment Act of 2009 (the "HITECH Act");
This Addendum applies to the extent that Provider is subject to the Privacy and Security Standards; and under the Provider Agreement, WellnessFX receives Protected Health Information of Provider Patients from or on behalf of Provider;
The parties desire to provide Provider with adequate written assurances from WellnessFX regarding its receipt and use of Protected Health Information from or on behalf of Provider and certain other obligations of each party relating to Protected Health Information;
NOW, THEREFORE, in consideration of the foregoing and the following provisions, the parties agree to modify the Agreement as follows:
1.1. Capitalized terms not defined in this Addendum have the definitions in the Provider Agreement or the Privacy or Security Standards, as applicable. "Protected Health Information" and "PHI" means information received by WellnessFX from or on behalf of Provider that is "protected health information" as defined in HIPAA. All references to Protected Health Information and PHI include Electronic PHI.
2.1. Use and Disclosure of Protected Health Information. WellnessFX may use and disclose PHI as required or expressly permitted by the Provider Agreement, or as required by law. WellnessFX will use or disclose PHI received from Provider only in connection with providing the WellnessFX System to Provider, except that WellnessFX may use PHI (i) for its proper management and administration, (ii) to carry out the legal responsibilities of WelllnessFX or (iii) to provide data aggregation services relating to the health care operations of Provider if required under the Agreement.
2.2. HITECH Act. In respect of WellnessFX's use and disclosure of Protected Health Information provided by Provider under the Agreement, WellnessFX will comply with all requirements of the HITECH Act that relate to security or privacy and that the HITECH Act makes applicable to covered entities.
2.3. Safeguards. WellnessFX will:
2.3.1. Implement administrative, physical and technical safeguards that reasonably and appropriately protect the confidentiality, integrity and availability of Electronic PHI, including all safeguards required by the Security Rule
2.3.2. Comply with Sections 164.308, 164.310, 164.312, and 164.316 of the Security Standards in the same manner that such sections apply to covered entities with respect to WellnessFX's use or disclosure of PHI;
2.3.3. Require that any agent, including a subcontractor, to whom WellnessFX provides Electronic Protected Health Information, agrees to comply with Sections 164.308, 164.310, 164.312, and 164.316 of the Security Standards in the same manner that such sections apply to covered entities with respect to the agent's or subcontractor's use or disclosure of PHI; and
2.3.4. Report to Provider any Security Incident of which WellnessFX becomes aware; provided however, WellnessFX is not required to provide notice of Unsuccessful Security Incidents. "Unsuccessful Security Incidents" means pings and other attacks on WellnessFX's firewall, port scans, unsuccessful log-on attempts, denial of service attacks, and other third party actions attempting to test or penetrate WellnessFX's security measures, so long as no such incident results in unauthorized access, use or disclosure of PHI.
2.3.5. The terms "agents" and "subcontractors" do not include any service provider to WellnessFX serving only as a conduit of PHI rather than a business associate, as such term is defined in HIPAA and the HITECH Act and the regulations and interpretations thereunder.
2.4. Reporting of Disclosures of PHI. WellnessFX will report to Provider any use or disclosure of PHI in violation of this Addendum by WellnessFX, or reported to WellnessFX by a third party to which WellnessFX disclosed PHI.
2.5. Agreements by Third Parties. WellnessFX will obtain and maintain an agreement with each agent or subcontractor that has or will have access to PHI requiring each such agent or subcontractor to be bound to restrictions, terms and conditions no less stringent than those that apply to WellnessFX under this Addendum with respect to PHI. Further each agent or subcontractor will agree to report to WellnessFX any instances of which it is aware of violation of such agreement with respect to PHI.
2.6. Access to Information. Upon receipt of a request by Provider for access to PHI about an individual contained in a Designated Record Set, WellnessFX will make available to Provider such PHI. In the event any individual requests access to PHI directly from WellnessFX, WellnessFX will forward such request to Provider.
2.7. Availability of PHI for Amendment. Upon receipt of a request from Provider for the amendment of an individual's PHI or a record regarding an individual contained in a Designated Record Set, WellnessFX will provide such information to Provider for amendment and/or incorporate any such amendments in the PHI as required by 45 C.F.R. Section 164.526.
2.8. Accounting of Disclosures. WellnessFX will at the request of Provider make available to Provider such information as is in WellnessFX's possession and is required for Provider to make the accounting required by 45 C.F.R. Section 164.528.
2.9. Availability of Books and Records. WellnessFX will make its internal practices, books and records relating to the use and disclosure of PHI and its performance under this Addendum available to the Secretary of the Department of Health and Human Services upon request for purposes of determining compliance by Provider or WellnessFX with the Privacy or Security Standards.
3.1. Compliance. Provider will comply with its obligations regarding PHI and personal information from Provider Patients, including without limitation, obtaining from each Provider Patient all consents and authorizations required by applicable Law.
3.2. Limited Disclosure of Protected Health Information. Provider will take appropriate safeguards to limit disclosure of PHI by its employees or agents to WellnessFX (i) to only such access or disclosure as is necessary to permit WellnessFX to carry out its obligations under the Agreement, including this Addendum, and (ii) using only the means of transmittal required by WellnessFX as part of the WellnessFX System. Provider represents and warrants that the uses and disclosures of PHI resulting from its use of the WellnessFX System will not violate the Privacy Standards.
3.3. Notice of Privacy Practices. Provider will promptly notify WellnessFX in writing of any limitation(s) in its notice of privacy practices in accordance with 45 C.F.R Section 164.520, to the extent that such limitation may affect WellnessFX's use or disclosure of PHI.
3.4. Notification of Changes Regarding Individual Permission. Provider will promptly notify WellnessFX in writing of any changes in, or revocation of, permission by an Individual to use or disclose PHI, to the extent that such changes may affect WellnessFX's use or disclosure of PHI.
3.5. Notification of Restrictions to Use or Disclosure of PHI. Provider will promptly notify WellnessFX in writing of any restriction to the use or disclosure of PHI that Provider has agreed to in accordance with 45 C.F.R Section 164.522, to the extent that the restriction may affect WellnessFX use or disclosure of PHI.
Term and Termination.
4.1. Termination for Breach. Each party may terminate the Agreement on at least thirty (30) business days notice if the other party fails to cure a material breach of this Addendum within thirty (30) business days of its receipt of written notice specifying the breach in reasonable detail.
4.2. Term. The term of this Addendum will commence on the Addendum Effective Date and continue until WellnessFX no longer has any access to PHI and has destroyed or returned all PHI as set forth herein.
4.3. Effect of Termination of Agreement. In the event of termination or expiration of the Agreement, this Addendum will terminate, subject to WellnessFX's duty to return or destroy PHI as set forth in Section 4.4 below.
4.4. Return or Destruction of PHI upon Termination. Upon termination of this Addendum, WellnessFX will either return or destroy all PHI received from Provider or created or received by WellnessFX on behalf of Provider and which WellnessFX still maintains in any form as provided in the Agreement. WellnessFX will not retain any copies of destroyed PHI. To the extent that the terms of the Agreement require WellnessFX to maintain PHI for a specified period, or it is not feasible for WellnessFX to return or destroy PHI, the terms and provisions of this Addendum will survive termination or expiration of this Addendum for so long as WellnessFX maintain any PHI.
5.1. Effect. The terms and provisions of this Addendum will supersede any other conflicting or inconsistent terms and provisions in the Agreement. Any ambiguity in this Addendum will be resolved in favor of a meaning that permits the parties to comply with HIPAA and the HITECH Act.
5.2. Amendment. WellnessFX may amend this Addendum by posting a new version at the WellnessFX System, at the WellnessFX website or by delivering it to Provider through the WellnessFX system or by email to Provider's registered email address to the extent necessary to allow either party to comply with the Privacy Standards and the Security Standards as amended by the Secretary, or any other applicable regulations or statutes.
Version 1.0 January 29, 2014