Omni Help User Agreement
This Omni Help User Agreement (“Agreement”) includes the terms and conditions that apply to the use by you (“User” or “You”) and the Practices and Practice Members (defined below) that you represent of the Services (as defined in Section 1. a) offered by Omni Help, including but not limited to at https://www.omnihelp.com and all affiliated websites and applications and any Software (as defined in Section 2. a) owned and operated by Omni Help (collectively, the “Omni Help Site”), as well as on its partners’ websites, digital platforms and applications (“Partner Sites”). As used in this Agreement, “Practice” shall mean the entity on behalf of which User has engaged Omni Help to provide the Services, and shall include the totality of all facilities, doctors, and other healthcare specialists, professionals or providers, and staff members (each a “Practice Member”) located in the same office or affiliate offices, provided such affiliates are part of a single affiliated covered entity (as such terms are defined within HIPAA) or an organized healthcare arrangement or “OHCA” (as such term is defined within HIPAA), for whom an account is created on the Omni Help Site by User or who otherwise use the Services and/or the Omni Help Site for the purpose outlined in this Agreement. In those instances where the Practice does not have a separate corporate parent entering into this Agreement on the Practice’s behalf as User, references to User herein shall also be construed to mean Practice, and references to Practice herein shall be construed to mean User. This Agreement hereby incorporates by reference any User account page accessible by User through the Services (the “User Account Page”) or other order form entered into by the parties (the User Account Page and any other order forms entered into by the parties shall collectively be referred to as the “Order Form”) and any additions entered into by the parties, as if the terms of such Order Form, as applicable, were stated herein.
BY SIGNING AN ORDER FORM THAT REFERENCES THIS AGREEMENT OR OTHERWISE AGREEING TO THESE TERMS, YOU HEREBY REPRESENT AND WARRANT THAT YOU ARE DULY AUTHORIZED TO ENTER INTO AND BIND USER AND PRACTICE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT AND ACKNOWLEDGE AND AGREE THAT ALL SUCH USE BY USER IS SUBJECT TO SUCH TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO THESE TERMS OR ARE NOT AUTHORIZED TO BIND THE USER AND PRACTICE, THEN DO NOT SIGN THE ORDER FORM, AND THE USER AND PRACTICE ARE NOT LICENSED OR PERMITTED TO USE THE SERVICES AND/OR THE OMNI HELP SITE. ALL OTHER USES OF THE SERVICES AND/OR THE OMNI HELP SITE ARE STRICTLY PROHIBITED.
ARBITRATION NOTICE AND CLASS ACTION WAIVER: EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE ARBITRATION AGREEMENT IN SECTION 16.f, BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU, PRACTICE, AND OMNI HELP WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION, AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION
1. Omni Help Services.
a. Services. Subject to the terms and conditions of this Agreement and payment of the fees set forth in Section 6 and any Order Form or addendum to this Agreement (if applicable), Omni Help will provide a variety of services via the Omni Help Site and Partner Sites (“Services”), which may include, but are not limited to:
(i) hosting Practice and Practice Member profile web pages and marketing Practice Members and their services on the Omni Help Site (collectively, the “Marketing Services”);
(ii) healthcare appointment scheduling services, integration into the User’s practice management system, and appointment reminders for Non-Omni Help Patients (defined below in Section 5) (collectively, the “Scheduling Technology Services”);
(iii) staff training and account relations services; and
(iv) billing, collection, and payment services (collectively, the “Payment Services”).
b. User Access. During the Term, and subject to the terms and conditions of this Agreement, Omni Help grants User the right to access and use the Services and/or the Omni Help Site and to permit its Practice Members, agents, and subcontractors the right to access and use the Services and/or the Omni Help Site solely on User’s behalf; provided, however, that User shall be responsible for any use of the Services and/or the Omni Help Site by such Practice Members, agents and subcontractors. During the Term and subject to the terms and conditions of this Agreement, User grants Omni Help the right to access and use User’s practice management system, calendar system, and patient database (“User’s Systems”) and to copy, extract and use all data necessary to provide the Services. User acknowledges and agrees that Omni Help shall not be subject to any terms not set forth herein with respect to User’s Systems, including, but not limited to, any click-through agreements Omni Help may be required to accept in connection with its use thereof. User will furnish to Omni Help such cooperation, technical assistance, resources, and support as reasonably necessary or appropriate for Omni Help to implement and perform the Services.
(i) the address, phone number, fax, and email of the Practice and Practice Members;
(ii) information regarding Practice Member appointment availability and National Provider Identifier (“NPI”);
(iii) insurance plans in which each Practice Member participates (i.e., with which each is “in-network”);
(iv) general Practice information; and
(v) trademarks, logos, and such other domains, images, and materials that User provides to Omni Help (“User Logos”) (collectively, “User Information”).
Omni Help and its partners may use, modify, display, and copy User Information to provide and market the Services and the Omni Help Site. User may request that Omni Help modify User Information with additional information, links, or services. Omni Help may incorporate such modifications and additional information into User’s profile posted on the Omni Help Site at Omni Help’s sole discretion.
d. Accounts. Each Practice Member shall create and maintain throughout the Term accounts and passwords (“Accounts”) to use the Services and/or the Omni Help Site, including uploading, reviewing, and updating User Information via the Omni Help Site. Account information shall be held in strict confidence by User and Practice Members, and User will be solely responsible for any disclosures of its Account information or use thereof by any unauthorized party.
User shall immediately notify Omni Help at [email protected]:
(i) following any unauthorized use, access, or other compromises of an Account (including any password); and
(ii) when a Practice Member leaves, is no longer employed, or otherwise ceases to be part of any Practice. Omni Help reserves the right to disable any Account upon its reasonable belief that the security with respect to that Account has been or likely will be compromised.
The foregoing release is made by User notwithstanding the provisions of California Civil Code Section 1542 (or any other statute or common law principle elsewhere with a similar effect as to the subject matter of the foregoing sentence), which provides: “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.” User expressly waives any and all rights it may have under California Civil Code Section 1542 provisions or any similar statute in any other jurisdiction. Information provided by or about Customers or associated with Customers that is contained in or part of Reviews is Customer Personal Information (as defined in Section 1. h) but is not PHI (as defined in Section 14. e) and is collected solely at the discretion of Omni Help and not on behalf of User. User represents and warrants that it will not attempt to unduly influence or fraudulently create Reviews of its Practice Members or other providers on the Omni Help Site.
f. User-Sourced Reviews. If applicable, Omni Help may also display through the Services-specific reviews of Practice Members submitted by Non-Omni Help Patients (defined below in Section 5) directly to the User or an agent of User ("User Sourced Reviews"). The parties agree and acknowledge that User Sourced Reviews may not conform to the standard form of reviews Omni Help customarily obtains from Customers. Accordingly, the parties agree to work in good faith to conform User Sourced Reviews to Omni Help's standard form for publication through the Services. User agrees and acknowledges that Omni Help may, in its sole discretion, not publish or remove from the display through the Services any User Sourced Review to the extent that it violates Omni Help's then-current policies or applicable laws.
g. Personal Information. Omni Help will maintain Client consent for using and disclosing a Client's healthcare or medical history and other personal information (collectively, "Personal Information") in connection with the Services, whether in paper or electronic form. To avoid doubt, Personal Information is information that Clients provide directly to Omni Help so that Omni Help can provide services to Clients, and does not include information obtained from or on behalf of the User, the Practice, or any Practice Member. Client Personal Information includes, without limitation, information that Client provides directly to Omni Help (i) creating an account, (ii) searching for healthcare providers, (iii) completing medical history forms, (iv) leaving reviews of Practice Members, or (v) utilizing Embedded Modules (defined below). User acknowledges and agrees that Client Personal Information is not PHI (as defined in Section 14. e).
h. Content. Omni Help shall develop, compile, modify, or otherwise maintain all content on the Omni Help Site or as part of the Services, including, without limitation, any Practice Member or Practice photographs and any content provided by the User or any Client. User acknowledges and agrees that Omni Help may: (i) make content from the Omni Help Site, including User Information, available on Partner Sites and through marketing initiatives; and (ii) use Practice Member's name and/or NPI to obtain certain insurance information including, without limitation, coverage and benefit information. User shall obtain any necessary permission or consent from each Practice and Practice Member as may be required to share the User Information with Omni Help and for Omni Help to further use and disclose such information as described herein.
a. Acceptance. You may review, download or otherwise utilize certain software applications or other code and functionality from the Omni Help Site or provided by Omni Help ("Software"). As a condition to using the Software, you must review and agree to the terms of this Section 2 and certain other terms and conditions that may apply (collectively, the "Software Terms"). You are not required to agree to the Software Terms. However, if you reject the Software Terms, you do not have any right to use the Software. If you use the Software, you will be deemed to have accepted the Software Terms. The term "Software" includes Embedded Modules, as defined below.
i. "Embedded Module" means HTML and other code and functionality provided by Omni Help that is displayed on a User Website (defined below) and that allows End Users to access and view Omni Help Content on the User Website. Embedded Modules include, without limitation, the "Book Online Button," "white labels," and other widgets and functionality that Omni Help may provide for use on a User Website from time to time.
ii. "End User" means a visitor to the User's Website.
iii. "User Website" means the User URL(s), domain(s), or other web properties accessing or hosting an Embedded Module.
iv. "Omni Help Content" means all data, information, and content provided or otherwise made available by or on behalf of Omni Help through or in connection with the Services and the Omni Help Site. Omni Help Content includes the Omni Help Marks, links, search functionality leading to the Omni Help Site, and advertising for Omni Help or third-party products. In addition, Omni Help Content includes all data and html and other code accompanying the Embedded Module and any upgrades, enhancements, or modifications to such code.
v. "Omni Help Marks" means the Omni Help name and any trade name, trademark, service mark, or logo of Omni Help.
i. Software. Subject to the terms and conditions of this Agreement and during the Term hereof, Omni Help hereby grants User a limited, non-exclusive, non-sub licensable, non-transferable, and revocable right and license to use the Software for its internal business purposes and solely in connection with the relevant Services. Omni Help reserves all rights to the Software not expressly granted hereunder.
ii. Embedded Modules. Subject to the terms and conditions of this Agreement and during the Term hereof, Omni Help hereby grants to User a limited, non-exclusive, non-sub licensable, non-transferable, and revocable license to (i) embed the html and other code provided by Omni Help hereunder on the User Website to display the Embedded Modules on the User Website; and (ii) use the Embedded Modules on the User Website solely for the intended purposes to access and display certain Omni Help Content made available by Omni Help via the Embedded Modules to End Users. Upon Omni Help's request, the User agrees to immediately remove any Embedded Modules from the User's Website. Except as expressly described herein, User is not licensed to use the Embedded Modules for any other purpose, and nothing in this Agreement shall be deemed to grant User any other right, title, or interest in the Embedded Modules.
iii. Omni Help Marks. Subject to the terms and conditions of this Agreement, User may display Omni Help Marks on the User Website in connection with the presentation of the Embedded Module and Omni Help Content, provided that all goodwill related to such name and logo and all uses thereof and any accrued goodwill shall inure solely to the benefit of Omni Help. If Omni Help determines in its sole discretion that any use of Omni Help Marks may be detrimental to Omni Help or its business or otherwise objectionable (in Omni Help's sole discretion), then User will promptly cease such use or modify its use to be consistent with Omni Help's reasonable requests. Upon any termination of this Agreement, the User will immediately cease using Omni Help Marks and any other similar mark, name, or logo.
e. Proprietary Rights and Restrictions.
i. Feedback. User may choose to provide Omni Help with comments concerning the Services or the Omni Help Site and User’s use thereof, which may include bug reports, evaluations, and proposed product integrations (and associated metrics and learnings) (collectively, “Feedback”). User hereby assigns to Omni Help all rights, title, and interest to the Feedback, for any and all commercial and non-commercial purposes, with no obligation of any kind to User.
ii. Restrictions. Except as expressly authorized under this Agreement, User may not (i) copy, rent, lease, sell, lease, license, transfer, assign, sublicense, redistribute, disassemble, aggregate, index, reverse engineer or decompile, derive source code or algorithms from, modify or alter, interfere with, defeat, avoid, disrupt, bypass, remove, disrupt or disable any part of the Omni Help Site; (ii) circumvent or attempt to circumvent any restrictions on, access to, or use of the Omni Help Site, or any of their constituent components; (iii) introduce any virus, worm, trap door, back door, timer, time bomb, authorization codes, or other device that would access, modify, interfere or disrupt the use of the Omni Help Site; (iv) use the Omni Help Site for any unlawful purpose, including to phish, spam, or distribute malware; (v) otherwise use the Omni Help Site on behalf of any third party or on any websites other than the User Website, or to create or maintain a separate online scheduling platform, or other similar product or service; (vi) resell, disclose, publish or distribute the Omni Help Site, including any information created, received, processed or provided through the Services or the Omni Help Site; (vii) use the Omni Help Site in any manner or for any purpose that violates any law or regulation, any right of any person, including but not limited to intellectual property rights, rights of privacy, or rights of publicity; (viii) cache or store any content obtained via use of the Omni Help Site; or (ix) remove or alter any branding, identifying, or notices included with the Software (including, but not limited to, “Powered by Omni Help” or other Omni Help Marks).
f. Placement. Omni Help prohibits the Placement of the Software or Omni Help Content on User Websites that include content that is offensive, abusive, harassing, threatening, discriminatory, vulgar, pornographic, or otherwise inappropriate, as determined by Omni Help in its sole discretion. User may not display the Embedded Modules or Omni Help Content in a manner that does not permit successful linking or redirection to the Omni Help Website or delivery of the applicable Services to the End User. Partner may not insert intermediate, splash, or other content between the Embedded Modules and the Omni Help Website.
3. Telemedicine Enabling Services.
a. Telemedicine Encounters. Subject to the terms and conditions of this Agreement, Omni Help may provide services that will enable customers to access healthcare encounters with Practice Members via telemedicine technology (“Telemedicine Encounters”), which may be conducted through either (i) the Practice’s existing telemedicine capabilities, or (ii) an interactive, two-way audiovisual communications system that Omni Help will facilitate through its Software.
b. Telemedicine Marketing, Scheduling, and Telemedicine Facilitation Services. Omni Help’s services shall be limited to Marketing and Scheduling Services for Telemedicine Encounters (“Telemedicine Marketing and Scheduling Services”), and under no circumstances shall Omni Help be deemed to be the provider of Telemedicine Encounters. Omni Help’s services may also include the technological facilitation of Telemedicine Encounters between Practice Members and Customers via an interactive, two-way audiovisual communications system (the “Telemedicine Facilitation Services”). The Telemedicine Marketing and Scheduling Services, and if applicable, the Telemedicine Facilitation Services, are included in the definition of “Services” hereunder.
c. Telemedicine Facilitation Software. Omni Help may, in its sole discretion, choose to provide Telemedicine Facilitation Services using its telemedicine technology or by partnering with a third-party technology provider. In either case, the Telemedicine Facilitation Services are included in the definition of “Software” under the Agreement. They are subject to the same terms and conditions that apply to other Software hereunder.
d. Telemedicine Representations and Warranties.
User represents, warrants, and covenants that, at all times during the Term:
i. Each Practice Member who engages in Telemedicine Encounters possesses all valid, unexpired, unrevoked, and unrestricted licenses, authorizations, and certifications (collectively, the “Licenses”) as may be required to engage in Telemedicine Encounters. Such Licenses include but are not limited to (i) a license to practice medicine in the jurisdiction where the Customer is located unless the Practice Member qualifies for an applicable exemption and (ii) any Licenses that are required for Telemedicine Encounters within a certain sub-specialty of medicine;
ii. Practice Members will provide Telemedicine Encounters in a manner that complies with all applicable state and federal laws and regulations, including, but not limited to, those that relate to (i) Practice Members’ scope of Practice, (ii) remote prescribing, (iii) permitted modalities of telemedicine, (iii) privacy and security, and (iv) coding, billing and collection activities;
iii. Practices shall obtain informed consent from Customers prior to engaging in Telemedicine Encounters, and such informed consent will comply with all applicable laws and regulations that may apply to healthcare services delivered via telemedicine;
iv. User shall be responsible for assessing insurance coverage and billing requirements that apply to Telemedicine Encounters (including any such requirements that arise under state or federal law) and for providing Omni Help with accurate and up-to-date information regarding each Practice Member’s insurance participation as applicable to Telemedicine Encounters; and
v. User shall be responsible for establishing policies and procedures that shall be operationalized if a Customer requires emergency healthcare services during a Telemedicine Encounter.
4. User Responsibilities.
a. User Information. User will cooperate with Omni Help or its agents to verify the information specified in Section 8. b, User Information, and any other information that Omni Help, in its sole discretion, deems necessary to confirm Practice Members’ professional qualifications. User will promptly update and notify Omni Help, in accordance with Section 8. b, of any change in User Information, including Practice Member licensure status and any applicable disciplinary action involving the Practice Member. The User is solely responsible for any liability or expense resulting from outdated or inaccurate User Information. User agrees that Omni Help may, in its sole discretion, modify the processes and criteria it uses to evaluate Practice Members’ qualifications, including with respect to any specialty listing, and may reject a Practice Member from being included in the Services for failure to meet Omni Help’s eligibility standards, in Omni Help’s sole discretion.
b. Acceptance of Customers. User’s acceptance of an appointment scheduling request from Omni Help for a Customer constitutes, for this Agreement, User’s acceptance of such Customer as a patient. User is fully and solely responsible for all care rendered to Customer and for collecting payment from Customer for all services rendered. Omni Help will have no responsibility for collection (subject to Omni Help’s obligations for Payment Services, as applicable) or any liability whatsoever for fees for services due to User that are unpaid by Customer.
c. Incorrect User Information. User agrees that any Customer who makes an appointment with User based on out-of-date or incorrect User Information shall not be charged for any fees disputed or not otherwise covered by the Customer’s insurance provider due to User’s failure to provide accurate User Information.
d. Scheduling Requests. User will respond to Customer scheduling requests within a reasonable amount of time but in no event more than twenty-four (24) hours after receipt of Omni Help’s request for an appointment on behalf of a Customer. User acknowledges and agrees that repeated rescheduling or cancelling of Customer appointments may result in User or the relevant Practice Member(s) being removed from, or otherwise affected in the order of display of, appointment listings are available to Customers in Omni Help’s sole discretion.
e. Confirmation of Customer Personal Information. If a Customer submits Customer Personal Information on the Omni Help Site and authorizes the User to have access to such information in advance of an appointment, at the Customer’s appointment, the User will (i) provide Customer with a copy of such Customer Personal Information, and (ii) allow Customer to review and accept or revise such Customer Personal Information. User hereby acknowledges, agrees, releases, and indemnifies Omni Help from all claims and liability arising out of, related to, or in connection with User’s failure to have Customer accept the Customer Personal Information or arising out of, related to, or in connection with any omissions or errors in any Customer Personal Information provided through the Services. User has no rights in the Customer Personal Information maintained by Omni Help other than as expressly provided hereunder.
f. Contact. User agrees that Omni Help may contact any Practice Member regarding the Services, the Software, and/or the Omni Help Site. If User has opted out of receiving any email or facsimile communications from Omni Help, then, as a condition of receiving the Services hereunder, User expressly opts back into receiving such email and facsimile communications and hereby withdraws its opt-out.
5. Non-Omni Help Patients.
Users may elect to use certain Services for patients who are not Customers (“Non-Omni Help Patients”), including, without limitation, booking appointments for, or having appointment reminders sent to, Non-Omni Help Patients. User shall be responsible for obtaining any required consents, permissions, or authorizations from Non-Omni Help Patients for the use and provision of such Services, including disclosure to and use by Omni Help of the healthcare and personal information of any Non-Omni Help Patients consistent with the terms of this Agreement and applicable law. Omni Help may send information, including but not limited to information regarding Omni Help, the Services, and/or certain resources, to Non-Omni Help Patients.
6. Fees and Payments.
a. Services Fees. In consideration of the Services provided hereunder, the User shall pay Omni Help any initial setup or recurring fees specified on User’s account page on the Omni Help Site (“User Account Page”) or elsewhere in the applicable Order Form. Prices shown on the Order Form do not include any taxes that may apply. User agrees to pay any sales and other taxes that may apply (excluding taxes based on Omni Help’s income) unless User provides Omni Help with a valid signed tax exemption certificate applicable to the Services and the Practices. Omni Help may invoice User for the first payment at sign-up, in advance for each subsequent license period, or as otherwise specified in the Order Form, as applicable. All invoices provided by Omni Help hereunder are due immediately. Omni Help may charge the User’s credit card, bank account, or other forms of payment regularly, before the service period, or in arrears, as applicable. User agrees to these recurring charges.
b. Other Fees. In addition to those fees set forth in Section 6. a, the User shall pay Omni Help the fees set forth in any addendum or Order form entered into by the parties.
c. Amounts Past Due and Fee Changes. All amounts due and owing hereunder by User that is not paid by the due date shall bear interest at the lesser of one and one-half percent (1.5%) per month or the maximum amount permissible by law. Except as otherwise may be agreed in an applicable Order Form, Omni Help reserves the right to change from time to time the amount or structure of the fees for any of the Services (including any part of the Marketing and Scheduling Technology Services or the Payment Services). Omni Help will use reasonable efforts to notify the User of any such fee changes at least thirty (30) days prior to becoming effective, provided that notification by email or on the User Account Page shall be sufficient. If User does not wish to pay such revised fees, then User’s sole option shall be to terminate this Agreement by notifying Omni Help in writing before the revised fees become effective. If User does not notify Omni Help in writing prior to the revised fees becoming effective, then User will be deemed to have accepted such fee changes, and such revised fee amounts will be automatically incorporated into this Agreement by this reference.
d. Termination. Upon termination of this Agreement for any reason, User shall pay to Omni Help all fees due or accrued under this Agreement and any addendum or Order form entered into by the parties as of the date of such termination. Notwithstanding anything to the contrary in this Agreement or in any addendum, Omni Help shall not refund to User any fees paid prior to expiration or termination of this Agreement.
e. Participation; Services. Omni Help will not exclude as a participant in the Services any individual or entity who meets the qualifications for participation as set forth herein. The parties agree that any User payments for the applicable Marketing and Scheduling Technology Services are:
- Consistent with a fair market value in an arm’s length transaction.
- Not based on the value or volume of any items or services provided by Users to Customers or Non-Omni Help Patients.
- Do not constitute splitting of any professional fees paid to the User.
The Services impose no requirements on how User provides services to Customers, except that User agrees not to charge any Customers different rates based upon, nor to charge Customers a fee for, such Customers booking through the Omni Help Site or otherwise using Omni Help services.
7. Limitation of Liability for Use.
a. Disclaimer. The parties acknowledge and agree that Omni Help is not responsible for (i) the accuracy, reliability, timeliness, or completeness of User Information, PHI, Benefit Information (defined below), Customer Personal Information, other data provided by Customers, or any other data or information provided or received through the Services and/or the Omni Help Site; (ii) any results that may be obtained from the use of the Services and/or the Omni Help Site; (iii) the provision of User’s services as a result of User’s reliance on any Customer Personal Information or other data provided through the Services and/or the Omni Help Site; (iv) the cancelling or rescheduling of any appointment booked through the Services and/or the Omni Help Site; (v) use of the Software after the Term; or (vi) losses or injury arising from User’s failure to implement and maintain the safeguards set forth in Section 8.a.ii, or arising from a security incident not caused by Omni Help.
b. Healthcare. The User acknowledges and agrees that Omni Help is not a healthcare provider, licensed or otherwise. Omni Help cannot and will not assume responsibility for the direct care of any patient, which shall at all times remain the responsibility of the User, Practice(s), and Practice Members. Omni Help will not be responsible for the assignment of staff to treat Customers, other patients, or any other activity that involves the practice of medicine.
c. Benefit information. Users may receive certain insurance-related information (including without limitation coverage and benefit information) of Customers (“Benefit Information”) through the Services. User’s receipt of Benefits Information is subject to the terms and conditions in this Section 7. c. User agrees and acknowledges that:
(i) User is aware that the Benefits Information is obtained via a clearing house and/or from the applicable insurance provider or Customer;
(ii) Omni Help cannot confirm the accuracy of the data it receives from such clearing house and/or insurance provider or Customer;
(iii) OMNI HELP MAKES NO GUARANTEES AND DISCLAIMS ALL WARRANTIES THAT SUCH BENEFIT INFORMATION IS ACCURATE, TIMELY, COMPLETE OR ERROR-FREE; and
(iv) User is ultimately responsible for verifying all Benefit Information with the applicable insurance carrier and Customer.
8. Representations, Warranties, and Covenants of User.
a. confidentiality. User represents warrants and covenants that: (i) it will maintain the confidentiality of Customer Personal Information and shall only use Customer Personal Information or the healthcare and personal information of other patients as permitted in this Agreement and consistent with state and federal laws, including applicable privacy and data security laws; and (ii) it will implement and maintain reasonable and appropriate administrative, organizational, physical, and technical safeguards to protect the confidentiality, integrity, and availability of Customer Personal Information, Account information, and Omni Help Confidential Information, and to prevent such information from improper use and disclosure.
b. Practice Member Information. User represents, warrants, and covenants that at all times during the Term:
(i) User will provide Omni Help with complete and accurate information about Practice Members’ specialties (in accordance with and subject to Omni Help’s then-current guidelines on specialty listings), practice or hospital affiliations, association memberships, board certifications, insurance participation, and contact information (including Practice Members’ professional address and phone and fax numbers);
(ii) User will provide Omni Help with accurate and up-to-date information regarding each Practice Member’s appointment availability;
(iii) each Practice Member possesses valid, unexpired, unrevoked, and unrestricted licenses, authorizations, and certifications: (A) for all jurisdictions in which he or she practices (free of any disciplinary actions by state medical boards or other applicable regulatory bodies),
(B) necessary to provide all services or treatment provided by the User or a Practice Member to a Customer or Non-Omni Help Patient resulting from User’s or a Practice Member’s use of the Services and/or the Omni Help Site (and User shall confirm the same to Omni Help on at least an annual basis), and (C) necessary for Omni Help to display User’s and Practice Members’ specialties;
(iv) each Practice Member has entered into a valid and unexpired collaborative practice or other agreements to the extent required for such Practice Member to practice at the applicable Practices (including such agreements to the extent the same is a condition of such Practice Member’s license);
(v) each Practice Member is a member in good standing on the medical staff of any hospitals in which he or she practices with appropriate clinical privileges (if applicable) and is employed by or affiliated with User;
(vi) each Practice Member possesses valid and unrestricted state and federal narcotic and controlled substances registrations, as applicable;
(vii) each Practice Member is and remains a participating provider in the Medicare and Medicaid programs (Titles XVIII and XIX of the Social Security Act, respectively) or is qualified to participate therein, but in any event, is not excluded therefrom;
(viii) User will obtain and maintain, and ensure that each Practice Member obtains and maintains, professional liability insurance coverage and other insurance of the types and in the amounts that are at a minimum consistent with industry standards and applicable law, with respect to each Practice Member’s practice;
(ix) each Practice Member treats all patients presenting themselves for treatment without regard to such patients’ race, religion, gender, sexual orientation, disability, payer source, or other unlawful considerations;
(x) the healthcare provider primarily providing services for an appointment shall be the Practice Member with whom such appointment is booked;
(xi) User will use, and ensure that each Practice Member uses the Services and the Omni Help Site in compliance with all applicable laws and regulations, including, without limitation, the hospital conditions of participation, the patient freedom of choice laws and principles, and antitrust, competition, advertising, marketing, and consumer protection laws and regulations;
(xii) User has the right to enter into and subject the Practice and each Practice Member to the terms and conditions of this Agreement;
(xiii) User has obtained from each Practice Member all rights, titles, and interests necessary for Omni Help to provide the Services to User on behalf of such Practice Member; and
(xiv) each Practice Member shall comply with the then-current Omni Help Community Standards available at https://www.Omni Help.com/about/community standards/ or any successor location (“Community Standards”). User represents warrants and covenants that it will notify Omni Help within five (5) days of any additional information applicable to User’s or a Practice Member’s practice, any changes with respect to any information provided to Omni Help, or if at any point User or a Practice Member is no longer in compliance with any of the warranties, representations, or covenants in this Section 8. b, except that: (A) User will have fifteen (15) days to notify Omni Help with respect to any additional information applicable to User’s or a Practice Member’s practice or changes of the information provided by User pursuant to Section 8. b.i, and (B) User will notify Omni Help within a reasonable amount of time, but in no event more than one (1) hour after any changes concerning the information provided by User pursuant to Section 8.b.ii. User shall be liable for any failure by Practice Members to meet the foregoing requirements of this Section 8. b.
c. competition. User acknowledges, represents, warrants, and covenants that it will not, and will ensure that each Practice Member will not engage or participate in any act or omission involving the use of the Services: (i) to establish, attempt to establish, or enforce, directly or indirectly, any agreement or coordination of (A) the prices charged for any product or service; (B) the kinds, frequencies or amounts of any product or service offered; or (C) the customer or customer categories for any product or service; or otherwise engage or attempt to engage in price fixing, output restriction, or customer or market allocation; or (ii) to engage in any anti-competitive, deceptive or unfair act, omission or practice, or to otherwise violate applicable antitrust, competition or consumer protection laws or regulations. To avoid doubt, the foregoing shall apply to the User, including each Practice Member, notwithstanding that such User or any such Practice Member has not elected to use the Payment Services.
d. Discount Reporting. User acknowledges, represents, warrants, and covenants that it shall disclose to each applicable payor, to the extent required by applicable law or contract, the net amount User paid for the applicable Marketing and Scheduling Technology Services hereunder (i.e., net of any applicable discounts, rebates, or other price concessions).
e. Ownership Rights. User represents warrants and covenants that it has all necessary rights, title, and interest in and to the content submitted by User to Omni Help for Omni Help to perform the Services, including any and all rights and interests in or to User Information and any copyright, trademark, other intellectual property, publicity, and privacy (including necessary consents, authorizations and/or other legal permissions).
f. User-Sourced Reviews. User represents and warrants that (a) it has obtained all rights, titles, interests, consents, and authorizations necessary in accordance with applicable law for Omni Help to publish User Sourced Reviews through the Services, (b) each User Sourced Review is unbiased, and no remuneration has been or will be provided to the applicable Non-Omni Help Patient for his or her review, and (c) each User Sourced Review has been provided to User or its agent by a Non-Omni Help Patient of User in connection with services provided (or that ought to have been provided, as the case may be) by the Practice Member associated with the applicable User Sourced Review.
User will defend, indemnify and hold harmless Omni Help and its affiliates, directors, officers, employees, consultants, and agents from any and all claims, actions, proceedings, losses, damages, liabilities, and expenses, including reasonable attorneys’ fees and amounts awarded by a court or paid in settlement, arising from or related to:
- Any services or treatment provided by the User or a Practice Member to a Customer or other patient resulting from User’s or a Practice Member’s use of the Services and/or the Omni Help Site.
- Any fees, costs, or expenses in connection with any services or treatment provided by User or a Practice Member to a Customer or other patient resulting from User’s or a Practice Member’s use of the Services and/or the Omni Help Site.
- Use of the Services by, or provision of the Services to, Non-Omni Help Patients.
- Gross negligence, willful or intentional misconduct, or fraud by a User, Practice, or Practice Member.
- Any breach of Sections 2.e, 3.d, 4.e, 8 or 10.a.ii.
- User Sourced Reviews.
- User Information.
10. Other Representations and Warranties; Disclaimer of Warranties.
a. Mutual Warranties. Each party represents and warrants to the other party that: (i) it is duly organized, validly existing, and in good standing under the laws of the jurisdiction in which it is organized; (ii) it has the full power to enter into this Agreement and to perform its obligations hereunder; (iii) the execution and delivery of this Agreement will not result in any breach of any terms and conditions of, or constitute a default under, any other agreement to which such party is bound; and (iv) it is not currently the subject of a voluntary or involuntary petition in bankruptcy, does not currently contemplate filing any such voluntary petition, and is not aware of any basis for the filing of an involuntary petition.
b. No Other Warranties. EXCEPT AS EXPRESSLY STATED HEREIN, THE SERVICES, SOFTWARE, AND THE OMNI HELP SITE ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND. EXCEPT AS EXPRESSLY SET FORTH HEREIN, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, OMNI HELP HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING WITHOUT LIMITATION ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, ACCURACY, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING OR PERFORMANCE OR USAGE OF TRADE, AND ALL WARRANTIES OF THE SERVICES, SOFTWARE OR THE OMNI HELP SITE BEING BUG-FREE, ERROR-FREE OR FREE FROM DEFECTS.
11. Limitation of Liability.
a. Disclaimer. TO THE MAXIMUM EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES SHALL OMNI HELP OR ITS PARTNERS, SUPPLIERS, VENDORS, OR LICENSORS BE LIABLE TO USER, THE PRACTICE OR A PRACTICE MEMBER FOR ANY (i) LOSS OF PROFITS, LOST REVENUE, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, (ii) LOSS OF DATA, (iii) LOSS OR INTERRUPTION OF USE OF THE SERVICES, SOFTWARE, OMNI HELP SITE, OR PARTNER SITES, (iv) PROVISION OF SERVICES, HEALTHCARE OR OTHERWISE, TO CUSTOMERS OR NON-OMNI HELP PATIENTS, OR (v) USER SOURCED REVIEWS, WHETHER IN AN ACTION IN CONTRACT, TORT OR BASED ON A WARRANTY, EVEN IF OMNI HELP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
b. Limitation. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE MAXIMUM AGGREGATE LIABILITY OF OMNI HELP OR ITS PARTNERS, VENDORS, SUPPLIERS, OR LICENSORS FOR ANY LOSS OR DAMAGES (WHETHER BASED ON CONTRACT, TORT, OR ANY OTHER FORM OF ACTION) (A) RELATING TO OR ARISING OUT OF THIS AGREEMENT, OR (B) RELATING TO OR ARISING OUT OF ANY OTHER AGREEMENT BETWEEN, ON THE ONE HAND, USER, THE PRACTICE OR A PRACTICE MEMBER, AND, ON THE OTHER HAND, OMNI HELP OR ANY THIRD-PARTY THAT IS A PARTNER, VENDOR, SUPPLIER, LICENSOR OR LICENSEE OF OMNI HELP, EXCEED THE GREATER OF: (Y) THE AGGREGATE OF THE NUMBER OF FEES PAID BY USER TO OMNI HELP HEREUNDER DURING THE PREVIOUS TWELVE (12)-MONTH PERIOD, OR (Z) ONE HUNDRED DOLLARS ($100).
12. Marks; Non-Disparagement.
a. Omni Help Marks. Any use of an Omni Help Mark by User that is not expressly permitted hereunder will, in each case, be subject to the prior written approval of Omni Help. In addition, any such use of an Omni Help Mark will be subject to Omni Help’s then-current trademark usage guidelines. Omni Help reserves the right to terminate the User’s right to use any Omni Help Mark immediately upon the issuance of written notice if Omni Help determines the User to be in violation of such guidelines in its sole discretion. User acknowledges and agrees that it shall not (i) make any comparative references to Omni Help, its pricing, or the Services or Omni Help Site; or (ii) disparage or otherwise denigrate Omni Help or the Services or Omni Help Site.
b. User Logos. User hereby grants Omni Help a non-exclusive, royalty-free license to use User Logos in connection with the Services during the Term.
13. Intellectual Property.
All right, titles, and interests, including without limitation all intellectual property rights, in and to the Services, Software, and the Omni Help Site, including all content submitted by Customers or User thereto (other than User Logos), as well as all URLs and domains registered by Omni Help (even if such URLs and domains incorporate User Logos), shall remain the valuable and exclusive property of Omni Help. Omni Help retains all proprietary rights, title, and interest, including, without limitation, all patents, copyrights, trademarks, service marks, trade dress, rights to the look and feel of the Omni Help Site, and trade secrets in and to any inventions, data, information, know-how, logos, ideas, concepts, technology, software and documentation related to or resulting from the utilization of the Services and/or the Omni Help Site.
14. Confidentiality/HIPAA Compliance.
a. Confidential Information. As used herein, “Confidential Information” means all confidential and proprietary information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”) that: (i) if disclosed orally is designated as confidential at the time of disclosure; (ii) if disclosed in writing is marked as “Confidential” and/or “Proprietary”; or (iii) reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential information includes, without limitation, the terms and conditions of this Agreement (including pricing and other terms reflected in all Order Forms hereunder), the provision of the Services and/or the Omni Help Site, business and marketing plans, technology and technical information, product designs, and business processes. Confidential information shall not include PHI (which is governed by Section 14. e) or any information that: (1) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (2) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (3) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (4) is received from a third party without breach of any obligation owed to the Disclosing Party.
b. Non-Disclosure. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement except with the Disclosing Party’s prior written permission. Notwithstanding the foregoing, the Receiving Party may disclose such Confidential Information to those of its employees and contractors who need to know such information for purposes of performing the Receiving Party’s obligations under this Agreement, provided that the Receiving Party certifies that such employees and contractors have agreed, either as a condition of employment or to obtain such Confidential Information, to be bound by terms and conditions substantially similar to those in this Agreement. The Receiving Party shall use the same degree of care to protect the Confidential Information of the Disclosing Party as it uses to protect its information of a confidential and proprietary nature, but in no event less than a reasonable degree of care.
c. Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance at the Disclosing Party’s request and cost, if the Disclosing Party wishes to contest the disclosure.
d. Injunctive Relief. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of the confidentiality obligations hereunder, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies are inadequate.
e. HIPAA. If Omni Help creates, receives, maintains, or transmits Protected Health Information (or “PHI,” as HIPAA defines such term) from or on behalf of the User or the Practice (as applicable) to perform the Services (“Practice PHI”), the parties agree and acknowledge that Omni Help is serving as a “Business Associate,” as such term is defined in the Health Insurance Portability and Accountability Act of 1996, as amended by the Health Information Technology for Economic and Clinical Health Act, Title XIII of the American Recover and Reinvestment Act of 2009 (the “HITECH Act”), and as set forth in their respective implementing regulations (collectively, “HIPAA”), of the Practice (and of User, if it is a Covered Entity component or Business Associate, of the Practice). The Practice, Omni Help, and User (if it is a Covered Entity component or Business Associate of the Practice) agree to discharge their respective duties hereunder in accordance with the applicable provisions of HIPAA. In furtherance of the foregoing, the terms of the Business Associate Agreement set forth in Exhibit A of this Agreement are incorporated herein by reference.
15. Term; Termination.
a. Term. This Agreement will commence as of the date of User’s acceptance of the terms and conditions herein, whether by clicking on the “Accept” button or by downloading, accessing, or otherwise using the Services and/or the Omni Help Site. It shall continue in effect for a period set forth in the Order Form or, if no period is set forth in the Order Form, for a period of one (1) year (as applicable, the “Initial Term”). This Agreement will automatically renew for successive periods of the same length as the Initial Term unless either party notifies the other party in writing at least thirty (30) days prior to the end of the Initial Term, or any renewal period, of its election not to renew this Agreement. The Initial Term and all renewal periods are collectively referred to herein as the “Term.”
b. Termination. User or Omni Help may terminate this Agreement if the other party breaches a material term of this Agreement and fails to cure such breach within ten (10) days of receiving notice.
c. Suspension. Omni Help may immediately suspend or terminate this Agreement, with regard to User and/or any Practice Member, in the event that Omni Help believes in its sole good faith determination that a Practice Member has engaged in inappropriate or unprofessional conduct, failed to fulfill the requirements set forth in Section 8. b, or otherwise breached any provision of this Agreement. Omni Help further reserves the right, at its sole discretion, to terminate this Agreement immediately, with regard to User and/or any Practice Member, for User’s or a Practice Member’s repeated rescheduling or cancelling of appointments.
d. Survival. The following shall survive expiration or termination of this Agreement: Sections 2. e.i, 2.e.ii, 6, 7, 9 – 16, and all other terms which are reasonably intended to survive.
a. Assignment. Neither party may assign this agreement, and/or any of its rights and obligations hereunder, without the prior written consent of the other party, except that Omni Help has the unrestricted right to assign this agreement to an affiliate or in the event of a sale, merger or acquisition of any portion of its business to which this agreement relates. Any attempted transfer in violation of this Section 16. a, will be void and of no effect. This agreement will be binding upon and inure to the benefit of the parties successors, representatives, and permitted assigns.
b. No Inducement. Nothing contained in this agreement, including any compensation paid or payable, is intended or shall be construed:
i. To require, influence, or otherwise induce or solicit a party or any of its affiliates for referrals or to arrange for the referrals of persons for items or services, or to recommend the ordering of any items or services, of any kind whatsoever, to any of the other parties or their affiliates, or any other person.
ii. As splitting of any professional fees paid to the User
iii. To interfere with a patient's right to choose his or her healthcare provider or with a provider's judgment regarding ordering any items or healthcare services.
iv. As remuneration in exchange for a disclosure of PHI or other information from a Customer or otherwise.
v. Non-Competition. User acknowledges and agrees that the use and disclosure of Omni Help's Confidential Information would inevitably occur if User utilizes any services by any competitor of Omni Help during the Term. Accordingly, User agrees that during the Term, User shall not, and shall not agree to, purchase, use, or perform any services for any third party that develops, promotes, sells, licenses, distributes, or provides services, or has plans to do any of the foregoing, that would compete directly with the Marketing Services and Scheduling Technology Services being marketed, sold, licensed, distributed, provided or otherwise made available by Omni Help on the Omni Help Site; provided, however, that the foregoing restrictions shall not limit User's right to offer or provide an appointment scheduling service directly via the User Website owned and operated by or on behalf of User.
d. Notices. All notices or other communications required or permitted to be given or delivered under this agreement shall be in writing (unless otherwise specifically provided herein). They shall be sufficiently given if sent (i) to Omni Help by overnight guaranteed delivery service and addressed to 568 Broadway, 9th Fl, New York, NY 10012, Attn: Legal; or (ii) to User via email to the designated billing contact or address on file. User expressly consents to the provision of notices via email. Either party may update its preferred notice address at any time upon notice to the other party. Any such notice or other communication shall be deemed to be given as of the date it is delivered to the recipient or, if delivered on a non-business day, on the next business day.
e. Governing Law. This agreement shall be governed by, and construed in accordance with, the laws of the State of New York without reference to the conflict of laws provisions thereof.
f. Arbitration Agreement. User and Omni Help acknowledge and agree that for the purposes of any dispute arising out of or relating to the subject matter of this Agreement, Omni Help's officers, directors, employees, and independent contractors ("Personnel") are third-party beneficiaries of this agreement, and that upon User's acceptance of this Agreement, Personnel will have the right (and will be deemed to have accepted the right) to enforce this Agreement against User as the third-party beneficiary hereof.
i. Arbitration Rules; Applicability of Arbitration Agreement. The parties shall use their best efforts to settle any dispute, claim, question, or disagreement arising out of or relating to the subject matter of this agreement directly through good-faith negotiations, which shall be a precondition to either party initiating the arbitration. If such negotiations do not resolve the dispute, it shall be finally settled by binding arbitration in New York, New York. The arbitration will proceed in English, per the JAMS Streamlined Arbitration Rules and Procedures (the "Rules"), then, in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes. The arbitrator shall be selected from the appropriate list of JAMS arbitrators in accordance with such Rules. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction.
ii. Costs of Arbitration. The Rules will govern the payment of all arbitration fees. Omni Help will pay all arbitration fees (not including the User's attorneys' fees) for claims less than seventy-five thousand dollars ($75,000). Omni Help will not seek its attorneys' fees and costs in arbitration unless the arbitrator determines that the User's claim is frivolous.
iii. Small Claims Court; Infringement. If they qualify, the User or Omni Help may assert claims in small claims court in New York or any United States county where the User lives or works. Furthermore, notwithstanding the foregoing obligation to arbitrate disputes, each party shall have the right to pursue injunctive or other equitable relief at any time from any court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation, or violation of a party's copyrights, trademarks, trade secrets, patents or other intellectual property rights.
iv. Waiver of Jury Trial. USER AND OMNI HELP WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR JURY. User and Omni Help instead choose to have claims and disputes resolved by arbitration. Arbitration procedures are typically more limited, more efficient, and less costly than rules applicable in court and are subject to minimal review by a court. In any litigation between User and Omni Help over whether to vacate or enforce an arbitration award, USER AND OMNI HELP WAIVE ALL RIGHTS TO A JURY TRIAL and elect instead to have a judge resolve the dispute.
v. Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS. CLAIMS OF MORE THAN ONE USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER USER.
vi. Arbitration Severability. If the prohibition against class actions and other claims brought on behalf of third parties or any other part of this Section 16. f is found to be unenforceable, then all of the other languages in this agreement and this Section 16. f will remain enforceable. If User or Omni Help are permitted to bring a claim relating to this agreement in state or federal court, then the such claim shall only be brought in New York, New York courts.
g. Force Majeure. Except for a party's payment obligations, the performance of either party under this agreement may be suspended to the extent and for the period of time that such party is prevented or delayed from fulfilling its obligations due to causes beyond its reasonable control (including without limitation, acts of God, acts of civil or military authority, new legislation or regulatory requirements, strikes or other labor disturbances, fires, floods, epidemics or pandemics, wars or riots). After thirty (30) cumulative days of suspension on the part of one party, the other party may, at its sole discretion and with written notice to the affected party, terminate its obligations without further liability.
h. Modifications. No modification, amendment, or waiver of this agreement or its provisions shall be binding upon Omni Help unless made in writing and agreed to by Omni Help. Omni Help may amend the terms and conditions of this agreement by posting a notice on the User Account Page or otherwise reasonably notifying User at least thirty (30) days prior to such change taking effect, provided that if User does not agree to such changes, User may terminate this agreement without penalty by providing Omni Help with written notice of such election prior to such modification taking effect. User's continued use of the Services and/or the Omni Help Site following such period shall be deemed to be User's acceptance of such change. A failure or delay of either party to: (i) insist upon the performance of any terms, conditions, rights, or privileges of this agreement; or (ii) exercise any rights or privileges conferred in this agreement shall not be construed as waiving any such terms, conditions, rights or privileges and the same shall continue and remain in full force and effect.
i. Severability. In the event any one or more of the provisions of this agreement shall for any reason be held to be invalid, illegal, or unenforceable, the remaining provisions of this agreement shall be unimpaired, and the invalid, illegal, or unenforceable provision shall be replaced by a mutually acceptable provision, which, being valid, legal and enforceable, comes closest to the intention of the parties underlying the invalid, illegal or unenforceable provision.
j. Entire Agreement. This agreement, any exhibits or addenda hereto, the policies referred to herein, and any Order Form constitute the entire agreement between the parties and supersede all previous or contemporaneous agreements, promises, and representations, whether written or oral, between the parties with respect to the subject matter hereof.
k. Headings. The headings of the sections of this agreement are for convenience only and do not form a part hereof or in any way limit, define, describe, modify, interpret, or construe the meaning, scope, or intent of this agreement or any terms or conditions therein.
l. Independent Contractors. The relationship of the parties shall be that of independent contractors. Any employee, servant, subcontractor, or agent of Omni Help who is assigned to provide services under this agreement shall remain at all times under the exclusive direction and control of Omni Help and shall not be deemed to be an employee, servant, subcontractor, or agent of User. Neither party will represent that it has any authority to assume or create any obligation, express or implied, on behalf of the other party, or to represent the other party as agent, employee, or in any other capacity, except as specifically provided herein.
m. Third Party Beneficiaries. This agreement is entered into solely between, and made for the sole benefit of, Omni Help and User, and, subject to indemnification obligations and the limitations of liability herein, this agreement will not be deemed to create any obligations, remedies, or liabilities of a party to any third parties (including without limitation any Practice Member) unless explicitly stated herein. Except as otherwise stated in this agreement, no third party shall have the right to make any claim or assert any right under this agreement, and no third party shall be deemed a beneficiary of this agreement.
n. Remedies Cumulative. Unless expressly stated, no remedy afforded to a party under this agreement shall preclude other remedies available under equity or Law.
Business Associate Agreement
Terms used in this Exhibit A but not otherwise defined in this Exhibit A or the Agreement shall have the meaning ascribed to them by HIPAA. For purposes of this Exhibit A only, when Omni Help is deemed to be a Business Associate of Practice and/or User, as applicable, Omni Help shall be referred to as “Business Associate,” and Practice and/or User, as applicable, shall be referred to as “Covered Entity.” If User is a Business Associate of the Practice, references to Business Associate herein shall be to Omni Help, notwithstanding that Omni Help would be a Business Associate Subcontractor, as defined in HIPAA, of User. In the event of an inconsistency between this Exhibit A and another Agreement term related to PHI, this Exhibit A shall control.
2. Use and Disclosure.
Business Associate agrees not to use or disclose Practice PHI other than as permitted or required by this Exhibit A, the Agreement, or as Required By Law. Business Associate shall comply with the provisions of this Exhibit A relating to privacy and security of PHI that are applicable to Business Associates.
3. Appropriate Safeguards.
Business Associate agrees to use appropriate safeguards to prevent the use or disclosure of Practice PHI other than as provided for by this Exhibit A, the Agreement, or as Required By Law. Without limiting the generality of the foregoing sentence, Business Associate will:
a. Implement administrative, organizational, physical, and technical safeguards that reasonably and appropriately protect the confidentiality, integrity, and availability of Electronic Protected Health Information contained within Practice PHI (“Electronic Practice PHI”) as required by the Security Rule; and comply with the applicable requirements, policies, procedures, and documentation requirements of the Security Rule.
b. Report to the Covered Entity any Security Incident involving Electronic Practice PHI or involving systems in which Electronic Practice PHI is stored, maintained, or over which it is transmitted, of which the Business Associate becomes aware. Any actual, successful Security Incident will be reported to Covered Entity in writing without unreasonable delay. With respect to attempted, unsuccessful Security Incidents, the parties acknowledge and agree that Exhibit A constitutes notice by Business Associate to Covered Entity of the ongoing existence and occurrence or attempts of Unsuccessful Security Incidents for which no additional notice to Covered Entity shall be required. “Unsuccessful Security Incidents” means, without limitation, pings and other broadcast attacks on the Business Associate’s firewall, port scans, unsuccessful log-on attempts, denial of service attacks, and any combination of the above, so long as no such incident results in unauthorized access, use, disclosure, modification or destruction of Electronic Practice PHI or interference with system operations in an information system that contains Electronic Practice PHI.
c. Notify the Covered Entity following the discovery of a Breach of Unsecured PHI that is Practice PHI in accordance with 45 C.F.R. § 164.410 without unreasonable delay and in no event later than sixty (60) days (or within any shorter deadline imposed by applicable state law) after the discovery of the Breach. The notice shall include the following information if known (or can be reasonably obtained) by Business Associate:
(i) contact information for the individuals who were or who may have been impacted by the Breach (e.g., first and last name, mailing address, street address, phone number, email address);
(ii) a brief description of the circumstances of the Breach, including the date of the Breach and date of discovery;
(iii) a description of the types of Unsecured PHI involved in the Breach (e.g., names, social security numbers, dates of birth, addresses, account numbers of any type, and similar information); and
(iv) a brief description of what the Business Associate has done or is doing to investigate the Breach and mitigate harm to the individuals impacted by the Breach. A Breach is considered “discovered” as of the first day on which the Breach is known or reasonably should have been known to the Business Associate or any employee, officer, or agent of the Business Associate other than the individual committing the Breach.
d. Report, without unreasonable delay, to Covered Entity any access, use, or disclosure of Practice PHI by Business Associate or a third party to which Business Associate disclosed Practice PHI which is not permitted by this Agreement and of which Business Associate becomes aware.
e. Comply with the requirements of Subpart E that apply to the Covered Entity in the performance of such obligations to the extent that the Business Associate carries out one or more of Covered Entity’s obligations under Subpart E of 45 C.F.R. Part 164.
Business Associate agrees to take reasonable steps to mitigate, to the extent practicable, any harmful effect that is known to Business Associate of a use or disclosure of Practice PHI by Business Associate in violation of the requirements of this Exhibit A (including, without limitation, any Security Incident or Breach of Unsecured PHI). Business Associate agrees to reasonably cooperate and coordinate with Covered Entity to investigate any violation of the requirements of this Exhibit A and/or any Security Incident or Breach. Business Associate shall also reasonably cooperate and coordinate with Covered Entity in the preparation of any reports or notices to the Individual, a regulatory body, or any third party required to be made under HIPAA or any other federal or state laws, rules, or regulations, provided that any such reports or notices shall be subject to the prior written approval of Covered Entity.
5. Minimum Necessary.
To the extent required by HIPAA's "minimum necessary" requirements, the Business Associate shall only request, use and disclose the minimum amount of Practice PHI necessary to accomplish the purpose of the request, use, or disclosure. See the corresponding Covered Entity obligation in Section 12. b of this Exhibit A.
Business Associate shall enter into a written agreement meeting the requirements of 45 C.F.R. §§ 164.504(e) and 164.314(a)(2) with each Subcontractor (including, without limitation, a Subcontractor that is an agent under applicable law) that creates, receives, maintains or transmits Practice PHI on behalf of Business Associate. Business Associate shall ensure that the written agreement with each Subcontractor obligates the Subcontractor to comply with restrictions and conditions that are at least as restrictive as the restrictions or conditions that apply to Business Associate through this Exhibit A with respect to such information.
7. Access to Designate Record Sets.
The parties do not expect that Business Associate will maintain Designated Record Sets. In the event, however, that Covered Entity requests and Business Associate agrees to maintain a Designated Record Set, Business Associate agrees to provide access within thirty (30) days of a request by Covered Entity, and in the manner designated by the Covered Entity, to Practice PHI in a Designated Record Set created or received by Business Associate solely on behalf of Covered Entity only, to Covered Entity or, as directed by Covered Entity, to an Individual in order to meet the requirements of the HIPAA Regulations. If an Individual makes a request for access to Practice PHI directly to Business Associate, Business Associate shall notify Covered Entity of the request within three (3) business days of such request. The covered Entity shall have the sole responsibility to decide whether to approve a request for access to Practice PHI.
8. Amendments to Designated Record Sets.
The parties do not expect that Business Associate will maintain Designated Record Sets. In the event, however, that Covered Entity requests and Business Associate agrees to maintain a Designated Record Set, Business Associate agrees to provide information to Covered Entity for amendment and to incorporate any such amendment(s) to Practice PHI in a Designated Record Set that the Covered Entity directs or agrees to according to the HIPAA Regulations within thirty (30) days of a request by Covered Entity, and in the manner designated by the Covered Entity. If an Individual requests an amendment to Practice PHI directly to Business Associate, Business Associate shall notify Covered Entity of the request within three (3) business days of such request. The covered Entity will have the sole responsibility to decide whether to approve a request for an amendment to Practice PHI.
9. Access to Books and Records.
Business Associate agrees to make its internal practices, books, and records relating to the use and disclosure of Covered Entity’s PHI received from, or created or received by Business Associate on behalf of, Covered Entity available to the Secretary for purposes of the Secretary determining Covered Entity’s and Business Associate’s compliance with the Privacy Rule.
Business Associate agrees to document disclosures of PHI and information related to such disclosures as would be required for the Covered Entity to respond to a request by an Individual for an accounting of disclosures of PHI in accordance with HIPAA. Business Associate agrees to, within thirty (30) days of the request from Covered Entity, make available to Covered Entity such information as is in Business Associate’s possession and as would be required for Covered Entity to respond to a request by an Individual for an accounting of disclosures of Practice PHI in accordance with HIPAA. If Business Associate receives a request for an accounting for Practice PHI directly from an Individual, Business Associate shall forward such request to Covered Entity within ten (10) business days. The Covered Entity shall be responsible for providing an accounting of such disclosures to an Individual.
11. Permitted Uses and Disclosures by Business Associate.
a. Services. Except as otherwise limited in this Exhibit A, Business Associate may use or disclose PHI to perform the Services, provided that such use or disclosure would not violate HIPAA if done by Covered Entity.
b. Use for Administration of Business Associate. Except as otherwise limited in this Exhibit A, Business Associate may use Covered Entity’s PHI for the proper management and administration of the Business Associate or to carry out the legal responsibilities of the Business Associate. Covered Entity acknowledges and agrees that proper management and administration of Business Associate includes, without limitation, modifications of, upgrades to, and the development and/or addition of additional features and functionality for the Services and the Omni Help Site.
c. Disclosure for Administration of Business Associate. Except as otherwise limited in this Exhibit A, Business Associate may disclose Practice PHI for the proper management and administration of the Business Associate, provided that (i) disclosures are Required By Law, or (ii) Business Associate obtains reasonable written assurances from the third party to whom the information is disclosed that the third party will (1) protect the confidentiality of Practice PHI, (2) use or further disclose the Practice PHI only as Required By Law or for the purpose for which it was disclosed to the third party, and (3) notify the Business Associate of any instances of which it is aware in which the confidentiality of the information has been breached.
d. Data Aggregation. Business Associate may use Practice PHI to provide Data Aggregation services relating to the Health Care Operations of the Covered Entity if required or permitted under this Exhibit A or the Agreement.
e. De-Identified Information. Business Associates may use Practice PHI to create de-identified health information in accordance with the HIPAA de-identification requirements. Business Associate may use or disclose de-identified health information for any purpose permitted by law.
f. Authorization. Business Associate may present Customers with a valid HIPAA Authorization to obtain Customers’ authorizations for Business Associate to use and disclose Practice PHI for the purposes set forth in the Authorization. If a Customer has signed a valid HIPAA Authorization for Business Associate to retain such individual’s Practice PHI and use and disclose such PHI for the purposes set forth in the Authorization, then, notwithstanding anything in Section 15 of this Exhibit A, the parties agree that Business Associate will have no obligation to return or destroy such PHI upon the termination of the Agreement.
12. Obligations of Covered Entity.
a. Permissible Requests by Covered Entity. The covered Entity shall not request Business Associate to use or disclose Covered Entity’s PHI in any manner that would not be permissible under the Privacy Rule if done by Covered Entity.
b. Minimum Necessary PHI. Consistent with the Business Associate’s mutual obligation in Section 5 of this Exhibit A, when the Covered Entity discloses PHI to Business Associate, Covered Entity shall provide the minimum amount of PHI necessary to accomplish the Business Associate’s purpose.
c. Permissions; Restrictions. Covered Entity warrants and covenants that it has obtained and will obtain any consents, authorizations, and/or other legal permissions required under HIPAA and other applicable laws for the disclosure of PHI to Business Associate. 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 Covered Entity’s PHI, to the extent that such changes may affect the Business Associate’s use or disclosure of PHI. Covered Entity shall not agree to any restriction on the use or disclosure of PHI under 45 C.F.R. § 164.522 that restricts the Business Associate’s use or disclosure of Covered Entity’s PHI under this Exhibit A or the Agreement unless Business Associate grants its written consent.
d. Notice of Privacy Practices. Except as required by HIPAA or other applicable law, with Business Associate’s consent or as set forth in the Agreement, Covered Entity shall not include any limitation in the Covered Entity’s notice of privacy practices that limits Business Associate’s use or disclosure of Covered Entity’s PHI under this Exhibit A or the Agreement.
12. Compliance with HIPAA Transaction Standards.
When providing Services, and to the extent applicable, Business Associate shall comply with all applicable HIPAA standards and requirements (including, without limitation, those specified in 45 C.F.R. Part 162) with respect to the transmission of health information in electronic form in connection with any transaction for which the Secretary has adopted a standard under HIPAA (“Covered Transactions”). Business Associate will make its services and/or products compliant with HIPAA’s standards and requirements no less than thirty (30) days prior to the applicable compliance dates under HIPAA. Business Associate represents that it is aware of all current HIPAA standards and requirements regarding Covered Transactions, and Business Associate shall comply with any modifications to HIPAA standards and requirements which become effective from time to time. Business Associate shall require all of its agents and subcontractors (if any) who assist Business Associate in providing its services and/or products to comply with the terms of this Section 13.
14. Termination Upon Breach.
Notwithstanding anything to the contrary in this Exhibit A or the Agreement, either party (the “Non-Breaching Party”), upon knowledge of a material breach of this Exhibit A relating to Practice PHI by the other party (the “Breaching Party”), shall provide an opportunity for the Breaching Party to cure the breach or end the violation. If Breaching Party does not cure the breach or end the violation to the reasonable satisfaction of the Non-Breaching Party within thirty (30) days, the non-breaching party may terminate (a) this Exhibit A; (b) all of the provisions of the Agreement that involve the use or disclosure of Practice PHI; and (c) such other provisions, if any, of the Agreement as the Non-Breaching Party designates in its sole discretion.
15. Effect of Termination.
a. Return of PHI. Except as provided in Section 15. b of this Exhibit A, upon the termination of this Exhibit A or the Agreement, for any reason, Business Associate shall return or destroy, without unreasonable delay, all Practice PHI received from Covered Entity or created or received by Business Associate on behalf of Covered Entity. This provision shall apply to Practice PHI that is in the possession of subcontractors or agents of the Business Associate.
b. Infeasibility. If Business Associate determines in its sole reasonable discretion that returning or destroying the Practice PHI is infeasible, Business Associate shall extend the protections of this Exhibit A to such PHI and limit further uses and disclosures of Practice PHI to those purposes that make the return or destruction infeasible, for so long as Business Associate maintains Practice PHI. Without limiting the generality of the foregoing, Covered Entity acknowledges and agrees that: (i) it is infeasible for Business Associate to delete Practice PHI from its backup tapes or other backup systems, and (ii) it is infeasible for Business Associate to delete all Practice PHI during an ongoing investigation in connection with a Security Incident or Breach of Unsecured PHI, and that temporarily retaining certain Practice PHI may be necessary for such investigation.