Oxygen Terms Of Services – All Customers
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THESE SERVICES.
BY USING THE SERVICES OR CLICKING “AGREE” CUSTOMER IS AGREEING TO BE BOUND BY THIS AGREEMENT. IF CUSTOMER IS AGREEING TO THIS AGREEMENT ON BEHALF OF OR FOR THE BENEFIT OF THEIR EMPLOYER, THEN CUSTOMER REPRESENTS AND WARRANTS THAT THEY HAVE THE NECESSARY AUTHORITY TO AGREE TO THIS AGREEMENT ON THEIR EMPLOYER’S BEHALF. PLEASE REVIEW SECTION 10 CLOSELY, AS IT CONTAINS A BINDING ARBITRATION PROCESS FOR RESOLVING DISPUTES INSTEAD OF USING THE COURT PROCESS.
This agreement is between HomeDoc Technologies, Inc. d/b/a Oxygen, a California corporation (Oxygen), and the customer agreeing to these terms (“Customer”), and covers all services provided by Oxygen to Customer.
1) Oxygen Software Services.
a. Service Agreements. This agreement provides Customer access and use of Oxygen’s web-based subscription services, as specified in the SUBSCRIPTION DOCUMENTS and related agreements (each a “Service Agreement”). Customer may purchase Oxygen Telemedicine & EHR Services, Oxygen Billing and Practice Management Services, Oxygen’s Electronic Prescription service and related services under separate Customer Agreements, and subject to the terms of this Agreement.
2) Use Of Services.
a. Oxygen’s Responsibilities. Oxygen shall use commercially reasonably efforts to provide customer support for each of its Services as further detailed in their Service Agreements.
b. Customer Responsibilities.
i. Access by Employees and Contractors. Customer will not make the Services available to anyone other than its authorized employees solely to access the Services for the benefit of Customer in compliance with the terms of this agreement and each Service Agreement. Customer is responsible for the compliance with this agreement by its employees and contractors.
ii. Restrictions and Responsibilities. Customer may not (i) sell, resell, rent or lease the Services, use the Services beyond its internal operations or reverse engineer the Services; (ii) use the Services to store or transmit infringing, unsolicited marketing emails, libelous, 2
or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party rights (including without limitation any privacy rights); (iii) interfere with or disrupt the integrity or performance of the Services; (iv) attempt to gain unauthorized access to the Services or its related systems or networks; (v) modify, copy the Services, or create derivative works based on the Services or any part, feature, function or user interface thereof; (vi) except to the extent permitted by applicable law, disassemble, reverse engineer, or decompile the Services or remove or modify any proprietary marking or restrictive legends in the Services; (vii) use the Services in violation of any law, including without limitation, HIPAA, Telephone Consumer Protection Act and any spam laws (for example, CAN SPAM); or (vii) access the Services to build a competitive product or service. Customer is solely responsible for Customer Information (defined below), must use commercially reasonable efforts to prevent unauthorized access to the Services, must notify Oxygen promptly of any such unauthorized access, and may use the Services only in accordance with its user guide and applicable law.
iii. Customer Information. All data, information, images, documentation, and files entered or uploaded by Customer to Oxygen remains the sole property of Customer, as between Oxygen and Customer (Customer Information), subject to the other terms of this agreement. Customer grants Oxygen a non-exclusive, royalty-free license to modify, store, transmit, and otherwise use the Customer Information for purposes of Oxygen performing under this agreement.
iii. Non-Payment. Notwithstanding the foregoing, if Customer’s access to the Services is suspended for non-payment of fees in accordance with Section 3(d), Oxygen will have no obligation to provide access to Customer Information to Customer via the Services until Customer remedies such non-payment as provided in this agreement.
iv. Data Accuracy. Accuracy of Information Provided by Customer. Customer represents and warrants to Oxygen that all Customer Information, Content (each as defined below) and other material provided under Customer’s account, by Customer or on its behalf, is true, correct and accurate. If Customer learns that any Customer Information or Content provided to Oxygen as part of the Services is not true, correct or accurate, Customer must immediately notify Oxygen by phone and in writing of this fact, and provide the true, correct and accurate information to Oxygen. Oxygen relies on Customer’s representations regarding the truth, accuracy and compliance with laws of Customer Information and Content. Oxygen Is Not Liable For Any Loss Or Damage Caused By Customer’s Failure To Comply With This Paragraph, Irrespective Of Any Act Or Omission On The Part Of Oxygen.
v. Clinical Support Information; Information Exchange. We may provide information to assist you in clinical decision-making. This may include information and reminders concerning drug interactions, allergies, dosages, as well as general health-care related 3
information and resources. You agree that the information and materials available through the Services are for informational and educational purposes only and are not intended to constitute professional advice, diagnosis or treatment, or to substitute for your professional judgment. Information may be placed in the Services by us and by third parties beyond our control, including by funding sources of such information. We are not responsible for the accuracy or completeness of information available from or through the Services. You assume full risk and responsibility for the use of information you obtain from or through the Services, and neither we nor any of our licensors or data providers are responsible or liable for any claim, loss, or liability arising from use of the information. We do not recommend or endorse any provider of health care or health-related products, items or services, and the appearance of materials in the Services relating to any such products, items or services is not an endorsement or recommendation of them. You will review the definitions, functionality, and limitations of the Services, and to make an independent determination of their suitability for your use. We and our suppliers and licensors disclaim all warranties, whether expressed or implied, including any warranty as to the quality, accuracy, and suitability of the information provided by the Services for any purpose.
vi. Aggregation and De-identified Data. Oxygen may use protected health information to provide you with data aggregation services (as that term is defined by HIPAA) and to create de-identified data in accordance with 45 CFR 164.514(a)(c). Oxygen shall solely own all right, title and interest, in any de-identified data it creates from protected health information. Oxygen and its affiliates may use and disclose, during and after this agreement, all aggregate, anonymized information and de-identified data for purposes of enhancing the Services, technical support and other business purposes, all in compliance with the HIPAA Privacy Standards, including without limitation the limited data set and de-identification of information regulations.
vii. Electronic Prescriptions for Controlled Substances. If Customer uses Oxygen’s Services for Electronic Prescriptions for Controlled Substance (“Electronic Prescriptions”), the following applies:
a. Hard Token. Each Electronic Prescription account is assigned to a specific provider (Prescribing Provider) authorized by Customer. Each Prescribing Provider will be provided with a complimentary Identity-Proof Hard Token (Hard Token) and confirmation letter. If the Hard Token is lost, damaged, or becomes inoperable, there will be an additional fee for a new Hard Token or confirmation letter.
b. Soft Token. If Prescribing Provider secures and elects to use a Soft Token (Soft Token), provided by a third-party, the Soft Token must be downloaded and stored on a separate device from the computer or device on which the Prescribing Provider gains access to the Electronic Prescriptions feature and transmits prescriptions.
The Hard Tokens and Soft Tokens are referred to generally as a “Token”. 4
viii. Responsibilities. Customer and each Prescribing Provider agrees (a) that each Prescribing Provider shall retain sole possession of the Hard Token and not to share the login passphrase with any other person; (b) that each Prescribing Provider may not allow any other person to use the Token or enter the login passphrase in order to sign controlled substance prescriptions; (c) that failure to secure the Token, login passphrase, or any biometric information may provide a basis for revocation or suspension of the Electronic Prescriptions account; (d) to notify Oxygen within one (1) business day of discovery if: (i) Customer or a Prescribing Provider is contacted by a pharmacy because one or more controlled substance prescriptions are displaying the incorrect United States Drug Enforcement Administration (DEA) number; (ii) if Customer or a Prescribing Provider discover that one or more controlled substance prescriptions issued using a Prescribing Provider DEA number were not consistent with the prescriptions actually signed, or were not signed at all; or (iii) if a Prescribing Provider’s Token has been lost or stolen, or the authentication protocol has been compromised in any way; (e) that the Prescribing Provider is responsible for any controlled substance prescriptions written using its two-factor authentication credential; (f) that Prescribing Providers have the same responsibilities when issuing electronic prescriptions for controlled substances as when issuing paper or oral prescriptions; (g) to prescribe controlled substances only for legitimate medical purposes; (h) to review security logs on a daily basis for any security incidents; and (i) to report to the DEA any security incident and provide Oxygen with a copy of such report. Customer agrees to keep all security incident reports on file for a period of two (2) years.
ix. Electronic Prescriptions (Excluding Controlled Substances). If Customer uses the Services for Electronic Prescriptions (excluding prescriptions for controlled substances), the Customer and each Prescribing Provider agrees: (a) to only prescribe on their own behalf and not give away password or credentials to another person to prescribe for them; and (b) to take the same responsibility as Customer would take when transmuting paper or phone prescriptions.
x. Meaningful Use. Customer and providers intending to attest for Meaningful Use (or the future equivalent certification) agree to follow the processes and procedures recommended in Oxygen’s Meaningful Use training such that Oxygen’s tracking and reports function appropriately.
c. Additional Terms.
i. Content. Customers may upload or submit content, files and information to the
Services that is informational, educational, or promotional in nature (“Content”). As between Oxygen and Customer, all Content belongs to Customer, and Customer hereby grants Oxygen a non-exclusive irrevocable, perpetual, royalty-free license to display, store, distribute, share, modify, and otherwise use such Content for purposes providing the 5
Services under this agreement, including, without limitation, a license to syndicate the Content to third party publisher sites as required to provide you the applicable Services (e.g., Oxygen Engage).
ii. Warranties. Customer represents and warrants to Oxygen that:
A. Any Content submitted to the Telemedicine Service does not violate any copyright, trade secret, privacy or other third party right;
B. It will not submit any Content that is untrue, defamatory, harmful to any person, or violates HIPAA Privacy Rules, state or federal laws on patient privacy; and
C. All patient testimonials submitted by Customer are accurate, have the patient’s consent, and comply with ethical guidelines of professional medical associations as well as state and local medical and private practice boards and governing bodies.
iii. Reminders and SMS Messages. Customer agrees that by registering for the Telemedicine Services, including any request forms or use of communications features, constitutes a request for Oxygen to send email, fax, phone call, or SMS reminders about upcoming appointments, special offers, and upcoming events. Oxygen is not responsible for any text messaging or data transmission fees. If Customer provides a cellular phone number and agrees to receive communications from Oxygen, Customer specifically authorizes Oxygen to send text messages or calls to such number. Customer represents and warrants it has the authority to grant such authorization. Customer is not required to consent to receive text messages or calls as a condition of using the Services and may opt out of such messages through the Services.
iv. Reviews & Opinions. Oxygen does not endorse, validate as accurate, or necessarily agree with any of the reviews, links, and user-generated content from users or Customers on the Services. Oxygen reserves the right to refuse to publish any patient review provided by Customer. Oxygen may attempt to send automated or human-based alerts when reviews are provided on third party websites, but Oxygen does not guarantee the accuracy, completeness, or timeliness of such alerts.
v. Advertisements. Oxygen reserves the right to place advertisements or messages from third parties on its web pages in limited circumstances. Such advertisements or messages from third parties may be visible to users as well as Customer.
d. Additional Terms – Applicable to Oxygen TeleMedicine.
i. TeleMedicine Services. Oxygen TeleMedicine is designed to facilitate Customer’s delivery of Telehealth Medical Services. “Telehealth Medical Services” include, without limitation, the delivery of medical care by Customer to a patient physically located at another site through the use of advanced synchronous real–time video and 6
telecommunications technology that allows providers and patients to remotely see and hear each other in real time.
ii. Customer’s Responsibilities. Customer is, and will remain, solely responsible for: (i) the provision of Telehealth Medical Services and all other professional medical services and aspects relating to Customer’s practice of medicine (for the avoidance of doubt, Telehealth Medical Services shall be performed by Customer for appropriate visits as determined in Customer’s, or its provider’s, as applicable, sole professional judgment); (ii) documenting the Telehealth Medical Services in Customer’s clinical records; (iii) billing and collecting for Telehealth Medical Services; (iv) providing notice to and/or obtaining consent from any third parties relating to the provision of Telehealth Medical Services through Oxygen Telehealth; (v) ensuring Oxygen Telehealth is used in accordance with applicable instructions, training materials and other online material that may be made available by Oxygen from time to time; (vi) obtaining and maintaining both the functionality and security of all information technology software solutions and related services necessary to connect to, access or otherwise use Oxygen Telehealth; and (vii) complying with applicable laws, rules, regulations and standards imposed by government health care programs and other payors, licensing agencies and applicable accreditation bodies, including, without limitation, with respect to the provision of Telehealth Medical Services.
3) Payment Terms.
a. Payment. Customer must pay all fees as specified on the Customer Agreement and related services as incurred as specified on the Pricing Policy page. Unless otherwise stated in the Customer Agreement, invoiced charges are due upon receipt. Customer is responsible for providing complete and accurate billing and contact information to Oxygen and notifying Oxygen of any changes to such information.
b. Credit Card and ACH. Customer must pay all fees (in US dollars) with a credit card or via ACH upon receipt of an invoice from Oxygen. If the credit card or ACH is not valid or the payment is not otherwise made, Customer must pay the amount owed upon receipt of an invoice. Customer hereby authorizes Oxygen to charge such credit card or withdraw from Customer’s bank account via ACH for all purchased Services and related services, and any renewals.
c. Taxes. Oxygen’s fees do not include any taxes, levies, or other similar governmental assessments (Taxes). Customer is responsible for the payment of all Taxes associated with its purchases under this agreement. Oxygen is solely responsible for taxes assessable against Oxygen based on its income, property, and employees. 7
d. Suspension of Services for Non Payment. Oxygen may suspend or terminate the Services, or both, if Customer has not paid amounts owed to Oxygen when due. In advance of any suspension or termination, Oxygen will make commercially reasonable efforts to send a minimum five-day (5-day) notice of payment default to Customer prior to suspension or termination (Customer is responsible updating its contact information with Oxygen and notifying Oxygen of any changes to such information).
e. Fee Changes. All fees may be changed with thirty (30) days advance email notice to Customer. Customer is responsible for keeping its updated email address on file with Oxygen.
f. Postage Fees. Since postage rate increases are publicly announced by the United States Postal Services, Oxygen will automatically apply the rate increase to all services impacted by the change without advance notice.
g. By signing up and agreeing to our Terms of Service you also agree to the following:
- Stripe Connected Account agreement
4) Warranty/Services Level Agreement/Disclaimers.
a. Availability. Oxygen will make commercially reasonable efforts to maintain the maximum uptime of its Telemedicine Services Platform.
b. Mutual Compliance with Laws. Each party represents and warrants to the other party that it will comply with all applicable laws regarding its performance under this agreement.
c. No Medical Advice Provided By Oxygen. Oxygen does not provide medical advice, provide medical or diagnostic services, or prescribe medication. Use of the Services is not a substitute for the professional judgment of health care providers in diagnosing and treating patients. Customer agrees that it is solely responsible for verifying the accuracy of patient information (including, without limitation, obtaining all applicable patients’ medical and medication history and allergies), obtaining patient’s consent to use the Services (including, without limitation, the Patient Portal), and for all of its decisions or actions with respect to the medical care, treatment, and well-being of its patients, including without limitation, all of Customer’s acts or omissions. Any use or reliance by Customer upon the Services will not diminish that responsibility. Customer assumes all risks associated with Customer’s clinical use of the Services for the treatment of patients. Neither Oxygen nor its licensors assume any liability or responsibility for damage or injury (including death) to Customer, a patient, other persons, or tangible property arising from any use of the Services. 8
d. Customer’s Compliance With Medical Retention Laws And Patient Records Access. Customer is responsible for understanding and complying with all state and federal laws related to retention of medical records, patient access to information, and patient authorization to release data. Customer agrees that it will obtain any necessary patient consent prior to using the Services (including, without limitation, the Patient Portal) and will apply settings to exclude information from availability in the Patient Portal as necessary to comply with state or federal law.
e. DISCLAIMERS. OXYGEN DISCLAIMS ALL WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR WITHOUT DELAY, AND THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. WHILE OXYGEN TAKES REASONABLE PHYSICAL, TECHNICAL, AND ADMINISTRATIVE MEASURES TO SECURE THE SERVICES, OXYGEN DOES NOT GUARANTEE THAT THE SERVICES CANNOT BE COMPROMISED. OXYGEN DISCLAIMS ANY WARRANTY REGARDING ANY PERCENTAGE OF COLLECTION OF CLAIMS FOR CUSTOMER.
5) Mutual Confidentiality.
a. Definition of Confidential Information. Confidential Information means all non-public information disclosed by a party (Discloser) to the other party (Recipient), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure (Confidential Information). Oxygen’s Confidential Information includes, without limitation, the nonpublic portions of the Services.
b. Protection of Confidential Information. The Recipient must use the same degree of care that it uses to protect the confidentiality of its own confidential information (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Discloser for any purpose outside the scope of this agreement. The Recipient must make commercially reasonable efforts to limit access to Confidential Information of Discloser to those of its employees, contractors, and clients (as the case may be) who need such access for purposes consistent with this agreement and who have signed confidentiality agreements with Recipient no less restrictive than the confidentiality terms of this agreement. The Recipient may disclose Confidential Information (i) to the extent required by law or legal process; (ii) to its legal or financial advisors, provided that such advisors are bound by a duty of confidentiality that includes use and disclosure restrictions; and (iii) as required under applicable securities regulations. In addition, each Party may disclose the terms and conditions of this agreement on a confidential basis to current and prospective investors, acquirers, lenders, and their respective legal and financial advisors in connection with due diligence activities. 9
c. Exclusions. Confidential Information excludes information that: is or becomes generally known to the public without breach of any obligation owed to Discloser; was known to the Recipient prior to its disclosure by the Discloser without breach of any obligation owed to the Discloser; is received from a third party without breach of any obligation owed to Discloser; or was independently developed by the Recipient without use or access to the Confidential Information.
6) Proprietary Rights.
a. Reservation of Rights by Oxygen. The software, workflow processes, user interface, designs, know-how and other technologies provided by Oxygen as part of the Services are the proprietary property of Oxygen and its licensors, and all right, title and interest in and to such items, including all associated intellectual property rights, remain only with Oxygen. Oxygen reserves all rights unless expressly granted in this agreement.
b. AMA Content. Any content of the American Medical Association (“AMA”) is subject to the terms set forth in the AMA’s End User License Agreement.
7) Limits On Liability.
a. No Indirect Damage. Oxygen is not liable for any indirect, special, or consequential damages (including, without limitation, costs of delay, loss of data or information, lost profits or revenues or loss of anticipated cost savings) arising under or related to this agreement, even if advised of the possibility of such loss or damage.
b. Limit. Oxygen’s total liability for all damages arising under or related to this agreement (in contract, tort, or otherwise) does not exceed the actual amount paid by Customer within the six-month (6-month) period preceding the event which gave rise to the claim. Any claim by Customer against Oxygen must be brought within twelve (12) months of the event which gave rise to the claim, and if it is not brought within such time period then such claim is expressly waived by Customer.
8) Term, Termination, And Return Of Data.
a. Term. The applicable Services will continue for the duration specified in the Customer Agreement and will be automatically extended for additional consecutive terms unless either party provides notice of termination of no less than 90 days before the end of the initial term or the then-applicable renewal term. This agreement continues until the Customer Agreement and all Services are terminated. 10
b. Termination for Material Breach. Either party may terminate this agreement and the Customer Agreement if the other party material breaches any term of the agreement or Customer Agreement and does not cure the breach within thirty (30) days of written receipt of notice of breach.
c. Return of Data. Oxygen will have no obligation to provide Customer Information to Customer upon termination of this agreement. Notwithstanding the foregoing, Oxygen will retain Customer Information for sixty (60) days from such termination and Oxygen may provide Customer access to such information upon Customer’s request.
d. Customer Actions upon Termination. Upon termination, Customer must pay any unpaid fees and destroy all Oxygen property in Customer’s possession. Customer, upon Oxygen’s request, will confirm in writing that it has complied with this requirement.
e. Suspension or Termination for Violation of Law or the Agreement. Oxygen may immediately suspend or terminate the Services and remove applicable Customer Information or Content if it in good faith believes that, as part of using the Services, Customer may have violated any applicable law or any term of this agreement. Oxygen may try to contact Customer in advance, but it is not required to do so.
a. General Indemnity. To the extent allowed by applicable law, Customer must indemnify, defend (at Oxygen’s option), and hold harmless Oxygen against all third-party claims (including, without limitation, by governmental agencies), demands, damages, costs, penalties, fines, and expenses (including reasonable attorneys’ fees and costs) arising out of or related to:
i. the use of the Services by Customer;
ii. Customer’s breach of any term in this agreement;
iii. any unauthorized use, access, or distribution of the Services by Customer; or
iv. violation of any individual’s privacy rights related to information submitted under Customer’s account, or fraudulent, invalid, duplicate, incomplete, unauthorized, or misleading information submitted under Customer’s account or by Customer.
10) Governing Law And Arbitration.
a. Governing Law. This agreement and any action related thereto is governed by the Federal Arbitration Act, federal arbitration law, and the laws of the State of New York (without regard to conflicts of law principles). 11
b. General Arbitration Process. Any dispute or claim that may arise between the parties relating in any way to or arising out of this agreement, Customer’s use of or access to the Services (Claim), must be resolved exclusively through final and binding arbitration (rather than in court) under the then current commercial rules of the American Arbitration Association. Any judgment on the award rendered by the arbitrator is final and may be entered in any court of competent jurisdiction. Nothing in this agreement prevents either party from seeking injunctive or equitable relief in any court of competent jurisdiction. The prevailing party in any arbitration or litigation is entitled to recover its attorneys’ fees and costs from the other party. The arbitration will be held in Nassau County, New York.
c. Optional Arbitration for Claims Less than $10,000. Notwithstanding the foregoing, for any Claim (excluding claims for injunctive or other equitable relief) where the total amount of the award sought is less than $10,000, the party requesting relief may choose to resolve the dispute in a more cost-effective manner through binding non-appearance-based arbitration. If a party elects arbitration, they must initiate such arbitration through an established alternative dispute resolution (ADR) provider mutually agreed upon by the parties. The ADR provider and the parties must comply with the following rules: (i) the arbitration will be conducted by telephone or online and be solely based on written submissions, the specific manner of which to be chosen by the party initiating the arbitration; (ii) the arbitration will not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and (iii) any judgment on the award rendered by the arbitrator is final and may be entered in any court of competent jurisdiction.
d. Enforcement. Notwithstanding Sections 10(b) and 10(c), Oxygen may bring an action to enforce its intellectual property or other proprietary rights in any court of competent jurisdiction.
e. Equitable Relief. Notwithstanding anything above, Oxygen may seek and obtain injunctive and equitable relief in any court of competent jurisdiction without restriction or required process in this agreement.
f. Prohibition Of Class And Representative Actions. Each party may bring claims against the other only on an individual party basis, and not as a plaintiff or class member in any purported class or representative action or proceeding. the arbitrator may not consolidate or join more than one party’s claims, and may not otherwise preside over any form of a consolidated, class or representative proceeding. If this class action and representative action waiver provision is held to be unenforceable, then sections 10.b and 10.c shall also be unenforceable. 12
11) Other Terms.
a. No Solicitation or Hiring of Employees. Customer acknowledges that Oxygen invests considerable time and expense in the training of its employees and independent subcontractors in the services to be provided under this agreement. Customer agrees that for the full term of this agreement, and for one (1) year after its termination Customer will not solicit or employ in any capacity, whether as a direct employee, independent contractor, or representative of another company providing similar services to Customer as Oxygen, any person employed by Oxygen at any time during the term of this agreement whose duties involve providing the Services, whether for Customer or other Oxygen customers.
b. Consent to Electronic Notice, Communications and Transactions. For purposes of messages and notices about the Services (including, without limitation, collections and payments issues), Oxygen may send email notices to the email address associated with Customer’s account or provide in service notifications. For certain notices (e.g., notices regarding termination or material breaches), Oxygen may send notices to the postal address provided by Customer. Oxygen has no liability associated with Customer’s failure to maintain accurate contact information within the Services or its failure to review any emails or in-service notices. Customer will have the ability to enter into agreements, authorizations, consents, and applications; make referrals; order lab tests; prescribe medications; or engage in other transactions electronically. Customer agrees that its electronic submissions via the services in connection with such activities constitute its agreement to be bound by such agreements and transactions and applies to all records relating to such transactions. Customer represents and warrants that it has the authority to take such actions.
c. Entire Agreement and Changes. This agreement and the Customer Agreement constitute the entire agreement between the parties and supersede all prior or contemporaneous negotiations or agreements, whether oral or written, related to this subject matter. Customer is not relying on any representation concerning this subject matter, oral or written, not included in this agreement. No representation, promise, or inducement not included in this agreement is binding. No modification or waiver of any term of this agreement is effective unless signed by both parties. The Convention on Contracts for the International Sale of Goods does not apply. Notwithstanding the foregoing, Oxygen may modify this agreement by posting modified Terms of Services on the Oxygen website. Customer agrees that by continuing to use the Services after posting of the modified Terms of Services, Customer agrees to be bound by the changes.
d. Feedback. If Customer provides feedback or suggestions about the Services, then Oxygen (and those it allows to use its technology) may use such information without obligation to Customer. 13
e. Beta Features. If Customer is invited to access any beta features of the Services or a Customer accesses any beta features of the Services, Customer acknowledges that: (a) such features have not been made commercially available by Oxygen; (b) such features may not operate properly, be in final form, or be fully functional; (c) such features may contain errors, design flaws, or other problems; (d) it may not be possible to make such features fully functional; (e) use of such features may result in unexpected results, corruption or loss of data, or other unpredictable damage or loss; (f) such features may change and may not become generally available; and (g) Oxygen is not obligated in any way to continue to provide or maintain such features for any purpose in providing the ongoing Services. These beta features are provided AS IS, with all faults. Customer assumes all risk arising from use of such features, including, without limitation, the risk of damage to Customer’s computer system or the corruption or loss of data.
f. No Assignment. Oxygen may assign or transfer this agreement or the Customer Agreement (or its rights and/or obligations thereunder) to any third party without consent. Customer may not assign or transfer this agreement or the Customer Agreement to a third party without the prior written consent of Oxygen, except that this agreement and the Customer Agreement may be assigned (without Oxygen’s consent) as part of a merger, or sale of all or substantially all of the business or assets, of Customer.
g. Electronic Notice. For purposes of messages and notices about the Services (including without limitation, collections and payments issues), Oxygen may send email notices to the email addresses associated with Customer’s account or provide in service notifications. For certain notices (e.g., notices regarding termination or material breaches), Oxygen may send notices to the postal address provided by Customer. Oxygen has no liability associated with Customer’s failure to maintain accurate contact information within the Services or its failure to review any emails or in-service notices.
h. Independent Contractors and Enforceability. The parties are independent contractors with respect to each other. If any term of this agreement is invalid or unenforceable, the other terms remain in effect.
i. Other Agreements Control. If there is an inconsistency between this Agreement and the Provider Telemedicine Services Agreement, or the Oxygen Billing Services Agreement, or any other agreement between Customer and Oxygen, the other agreement shall prevail.
j. Survival of Terms. All terms survive termination of this agreement that by their nature survive for a party to assert its rights and receive the protections of this agreement.
k. Customer Name. Oxygen may use Customer’s name and logo in customer lists and related promotional materials describing Customer as a customer of Oxygen, which use must be in accordance with Customer’s trademark guidelines and policies, if any, provided to Oxygen. 14
HomeDoc Technologies, Inc. d/b/a Oxygen
HIPAA BUSINESS ASSOCIATE AGREEMENT
This Business Associate Agreement, dated as of December __, 2020 (“BA Agreement”), supplements and is made a part of the Services Agreement (as defined below) by and between RAJENDRA RAMPERSAUD, M.D. P.C. and RAJENDRA RAMPERSAUD, M.D. (“Covered Entity”) and HOMEDOC TECHNOLOGIES, INC. d/b/a OXYGEN (“Business Associate”). Covered Entity and Business Associate may be referred to herein collectively as the “Parties” or individually as “Party”.
WHEREAS, Covered Entity and Business Associate are parties to one or more telemedicine service, billing service, electronic prescription service and other agreements pursuant to which Business Associate provides certain services to Covered Entity. In connection with Business Associate’s services, Business Associate creates, receives, maintains or transmits Protected Health Information from or on behalf of Covered Entity, which information is subject to protection under the Federal Health Insurance Portability and Accountability Act of 1996, Pub. L. No. 104-191 (“HIPAA”), the Health Information Technology for Economic and Clinical Health Act, Title XIII of the American Recovery and Reinvestment Act of 2009 (the “HITECH Act”), and related regulations promulgated by the Secretary (“HIPAA Regulations”); and
WHEREAS, Business Associate qualifies as a “business associate” (as defined by the HIPAA Regulations) of its clients, which means that Business Associate has certain responsibilities with respect to the Protected Health Information of its clients; and
WHEREAS, in light of the foregoing and the requirements of HIPAA, the HITECH Act, and HIPAA Regulations, Business Associate and Covered Entity agree to be bound by the following terms and conditions.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree in this BA Agreement as follows:
(a) General. Terms used, but not otherwise defined, in this BA Agreement shall have the same meaning given to those terms by HIPAA, the HITECH Act and HIPAA Regulations as in effect or as amended from time to time.
(i) Breach. “Breach” shall have the same meaning as the term “breach” in 45 CFR § 164.402.
(ii) Electronic Health Record. “Electronic Health Record” shall have the same meaning as the term “electronic health record” in the HITECH Act, Section 13400(5).
(iii) Electronic Protected Health Information. “Electronic Protected Health Information” shall have the same meaning as the term “electronic protected health information”
in 45 CFR § 160.103, limited to the information that Business Associate creates, receives, maintains, or transmits from or on behalf of Covered Entity.
(iv) Individual. “Individual” shall have the same meaning as the term “individual” in 45 CFR § 160.103 and shall include a person who qualifies as a personal representative in accordance with 45 CFR § 164.502(g).
(v) Privacy Rule. “Privacy Rule” shall mean the Standards for Privacy of Individually Identifiable Health Information at 45 CFR Part 160 and Part 164.
(vi) Protected Health Information. “Protected Health Information” shall have the same meaning as the term “protected health information” in 45 CFR § 160.103, limited to the information created, received, maintained or transmitted by Business Associate from or on behalf of Covered Entity.
(vii) Qualified Service Organization Agreement. “Qualified Service Organization Agreement” shall have the same meaning as defined in 42 CFR 2.12(c)(4).
(viii) Required By Law. “Required by Law” shall have the same meaning as the term “required by law” in 45 CFR § 164.103.
(ix) Secretary. “Secretary” shall mean the Secretary of the Department of Health and Human Services or his designee.
(x) Security Rule. “Security Rule” shall mean the Security Standards at 45 Part 160 and Part 164.
(xi) Services Agreement. “Services Agreement” shall mean any present or future agreements, either written or oral, between Covered Entity and Business Associate under which Business Associate provides services to Covered Entity which involve the use or disclosure of Protected Health Information. The Services Agreement is amended by and incorporates the terms of this BA Agreement.
(xii) Subcontractor. “Subcontractor” shall have the same meaning as the term “subcontractor” in 45 CFR § 160.103.
(xiii) Unsecured Protected Health Information. “Unsecured Protected Health Information” shall have the same meaning as the term “unsecured protected health information” in 45 CFR § 164.402.
2. Obligations and Activities of Business Associate.
(a) Use and Disclosure. Business Associate agrees not to use or disclose Protected Health Information other than as permitted or required by the Services Agreement, this BA Agreement or as Required By Law. Business Associate shall comply with the provisions of this BA Agreement relating to privacy and security of Protected Health Information and all present and future provisions of HIPAA, the HITECH Act and HIPAA Regulations that relate to the privacy and security of Protected Health Information and that are applicable to Covered Entity
and/or Business Associate. Without limiting the foregoing, to the extent the Business Associate will carry out one or more of the Covered Entity’s obligations under the Privacy Rule, Business Associate shall comply with the requirements of the Privacy Rule that apply to the Covered Entity in the performance of such obligations.
(b) Qualified Service Organization. Business Associate acknowledges that it may also be a Qualified Service Organization as defined in 42 CFR 2.11 and as such: (i) acknowledges that, to the extent it receives, stores, processes or otherwise deals with any information, whether recorded or not, relating to a patient received or acquired by a federally assisted alcohol or drug program, it is fully bound by the regulations in 42 CFR Part 2; and (ii) if necessary, will resist in judicial proceedings any efforts to obtain access to any information, whether recorded or not, relating to a patient received or acquired by a federally assisted alcohol or drug program, except as permitted by 42 CFR Part 2.
(c) Appropriate Safeguards. Business Associate agrees to use appropriate safeguards and comply, where applicable, with the Security Rule to prevent the use or disclosure of the Protected Health Information other than as provided for by this BA Agreement. Without limiting the generality of the foregoing sentence, Business Associate will:
(i) Implement administrative, physical, and technical safeguards that reasonably and appropriately protect the confidentiality, integrity and availability of Electronic Protected Health Information as required by the Security Rule; and
(ii) Ensure that any Subcontractor to whom Business Associate provides Electronic Protected Health Information agrees in writing to implement reasonable and appropriate safeguards and comply, where applicable, with the Security Rule to protect Electronic Protected Health Information and comply with the other requirements of Section 2(a) above.
(d) Reporting. Business Associate agrees to promptly report to Covered Entity any of the following:
(i) Any use or disclosure of Protected Health Information not permitted by this BA Agreement of which Business Associate becomes aware.
(ii) Any Security Incident of which Business Associate becomes aware.
In addition, Business Associate agrees to notify Covered Entity without unreasonable delay and in no event more than thirty (30) days following the discovery of a Breach of Unsecured Protected Health Information. A Breach is considered “discovered” as of the first day on which the Breach is known, or reasonably should have been known, to Business Associate or any employee, officer or agent of Business Associate, other than the individual committing the Breach. Any notice of a Security Incident or Breach of Unsecured Protected Health Information shall include the identification of each Individual whose Protected Health Information has been, or is reasonably believed by Business Associate to have been, accessed, acquired or disclosed during such Security Incident or Breach as well as any other relevant information regarding the Security Incident or Breach. Any such notice shall be directed to Covered Entity as set forth in the Services Agreement.
(e) Mitigation. Business Associate agrees to mitigate, to the extent practicable, any harmful effect that is known to Business Associate of a use or disclosure of Protected Health Information by Business Associate or its employees, officers, Subcontractors or agents in violation of the requirements of this BA Agreement (including, without limitation, any Security Incident or Breach of Unsecured Protected Health Information).
(f) Subcontractors. Business Associate shall ensure that any Subcontractor to whom Business Associate provides Protected Health Information received from, or created, maintained, received or transmitted by, Business Associate on behalf of Covered Entity agrees in writing to the same restrictions and conditions that apply through this BA Agreement to Business Associate with respect to such information.
(g) Access to Designated Record Sets. To the extent that Business Associate possesses or maintains Protected Health Information in a Designated Record Set, Business Associate agrees to provide access, at the request of Covered Entity to Protected Health Information in a Designated Record Set, to Covered Entity in order to meet the requirements under HIPAA Regulations. If an Individual makes a request for access to Protected Health Information directly to Business Associate, Business Associate shall notify Covered Entity of the request within three (3) business days of such request and will cooperate with Covered Entity and allow Covered Entity to send the response to the Individual.
(h) Amendments to Designated Record Sets. To the extent that Business Associate possesses or maintains Protected Health Information in a Designated Record Set, Business Associate agrees to make any amendment(s) to Protected Health Information in a Designated Record Set that the Covered Entity directs or agrees to pursuant to HIPAA Regulations at the request of Covered Entity or an Individual. If an Individual makes a request for an amendment to Protected Health Information directly to Business Associate, Business Associate shall notify Covered Entity of the request within three (3) business days of such request and will cooperate with Covered Entity and allow Covered Entity to send the response to the Individual.
(i) Access to Books and Records. Business Associate agrees to make its internal practices, books, and records, including policies and procedures and Protected Health Information, relating to the use and disclosure of Protected Health Information received from, or created or received by Business Associate on behalf of, Covered Entity available to the Secretary, in a time and manner designated by the Secretary, for purposes of the Secretary determining Covered Entity’s compliance with the Privacy Rule.
(j) Accountings. Business Associate agrees to document such disclosures of Protected Health Information and information related to such disclosures as would be required for Covered Entity to respond to a request by an Individual for an accounting of disclosures of Protected Health Information in accordance with HIPAA, HIPAA Regulations and the HITECH Act.
(k) Requests for Accountings. Business Associate agrees to provide to Covered Entity, within thirty (30) days of a request by Covered Entity, information collected in accordance with Section 2(j) of this BA Agreement, to permit Covered Entity to respond to a request by an Individual for an accounting of disclosures of Protected Health Information in
accordance with HIPAA, HIPAA Regulations and the HITECH Act. If an Individual makes a request for an accounting directly to Business Associate, Business Associate shall notify Covered Entity of the request within three (3) business days of such request and will cooperate with Covered Entity and allow Covered Entity to send the response to the Individual.
3. Permitted Uses and Disclosures by Business Associate.
(a) Services Agreement. Except as otherwise limited in this BA Agreement, Business Associate may use or disclose Protected Health Information to perform functions, activities, or services for, or on behalf of, Covered Entity as specified in the Services Agreement, provided that such use or disclosure would not violate HIPAA, HIPAA Regulations or the HITECH Act if done by Covered Entity or the minimum necessary policies and procedures of the Covered Entity.
(b) Use for Administration of Business Associate. Except as otherwise limited in this BA Agreement, Business Associate may use Protected Health Information for the proper management and administration of the Business Associate or to carry out the legal responsibilities of the Business Associate.
(c) Disclosure for Administration of Business Associate. Except as otherwise limited in this BA Agreement, Business Associate may disclose Protected Health Information for the proper management and administration of the Business Associate, provided that (i) disclosures are Required by Law, or (ii) Business Associate obtains reasonable assurances from the person to whom the information is disclosed that it will remain confidential and used or further disclosed only as Required by Law or for the purpose for which it was disclosed to the person, and the person notifies the Business Associate of any instances of which it is aware in which the confidentiality of the information has been breached.
4. Permissible Requests by Covered Entity. Except as set forth in Section 3 of this BA Agreement, Covered Entity shall not request Business Associate to use or disclose Protected Health Information in any manner that would not be permissible under the Privacy Rule if done by Covered Entity.
5. Term and Termination.
(a) Term. This BA Agreement shall be effective as of the date of this BA Agreement and shall terminate when all of the Protected Health Information provided by Covered Entity to Business Associate, or created, received or maintained by Business Associate on behalf of Covered Entity, is destroyed or returned to Covered Entity, or, if it is infeasible to return or destroy Protected Health Information, protections are extended to such information, in accordance with the termination provisions in this Section.
(b) Termination for Cause. Upon either Party’s knowledge of a material breach by the other Party of the terms of this BA Agreement, the non-breaching Party shall either:
(i) Provide an opportunity for the other Party to cure the breach or end the violation. If such Party does not cure the breach or end the violation within thirty (30) days, the non-breaching Party shall terminate: (A) this BA Agreement; (B) all of the provisions of the
Services Agreement that involve the use or disclosure of Protected Health Information; and (C) such other provisions, if any, of the Services Agreement as the non-breaching Party designates in its sole discretion; or
(ii) Notwithstanding anything contained in the Services Agreement to the contrary, if the other Party has breached a material term of this BA Agreement and cure is not possible, immediately terminate: (A) this BA Agreement; (B) all of the provisions of the Services Agreement that involve the use or disclosure of Protected Health Information; and (C) such other provisions, if any, of the Services Agreement as the non-breaching Party designates in its sole discretion.
(c) Effect of Termination.
(i) Except as provided in Section 5(c)(ii), upon termination of this BA Agreement, for any reason, Business Associate shall return or destroy all Protected Health Information received from Covered Entity, or created or received by Business Associate on behalf of Covered Entity. This provision shall apply to Protected Health Information that is in the possession of Subcontractors or agents of Business Associate. Business Associate shall retain no copies of the Protected Health Information.
(ii) In the event that Business Associate determines that returning or destroying the Protected Health Information is infeasible, Business Associate shall provide to Covered Entity notification of the conditions that make return or destruction infeasible. Business Associate shall extend the protections of this BA Agreement to such Protected Health Information and limit further uses and disclosures of such Protected Health Information to those purposes that make the return or destruction infeasible, for so long as Business Associate maintains such Protected Health Information.
6. Obligations of Covered Entity.
(a) Privacy Notice. Covered Entity shall notify Business Associate of any limitation(s) in its notice of privacy practices of Covered Entity in accordance with 45 CFR § 164.520, to the extent that such limitation may affect Business Associate’s use or disclosure of Protected Health Information.
(b) Changes of Permission of Individual. Covered Entity shall notify Business Associate of any changes in, or revocation of, permission by an Individual to use or disclose Protected Health Information, to the extent that such changes may affect Business Associate’s use or disclosure of Protected Health Information.
(c) Restrictions on Use or Disclosure. Covered Entity shall notify Business Associate of any restriction to the use or disclosure of Protected Health Information that Covered Entity has agreed to in accordance with 45 CFR § 164.522, to the extent that such restriction may affect Business Associate’s use or disclosure of Protected Health Information.
7. Coordination of Business Associate and Covered Entity.
(a) Investigation. The Parties shall reasonably cooperate and coordinate with each other in the investigation of any violation of the requirements of this BA Agreement and/or any Security Incident or Breach.
(b) Reports and Notices. The Parties shall reasonably cooperate and coordinate with each other in the preparation of any reports or notices to the Individual, a regulatory body or any third party required to be made under HIPAA, HIPAA Regulations, the HITECH Act, or any other Federal or State laws, rules or regulations.
(a) Regulatory References. A reference in this BA Agreement to a section in HIPAA, HIPAA Regulations, or the HITECH Act means the section as in effect or as amended or modified from time to time, including any corresponding provisions of subsequent superseding laws or regulations.
(b) Amendment. The Parties agree to take such action as is necessary to amend the Services Agreement and/or this BA Agreement from time to time as is necessary for Covered Entity to comply with the requirements of HIPAA, the HIPAA Regulations and the HITECH Act.
(c) Survival. The rights and obligations of Business Associate under Sections 5(c) and the Parties under Section 7 and this Section 8 of this BA Agreement shall survive the termination of the Services Agreement and this BA Agreement.
(d) Interpretation. Any ambiguity in this BA Agreement shall be resolved to permit both Parties to comply with HIPAA, HIPAA Regulations and the HITECH Act.
(e) Miscellaneous. The terms of this BA Agreement are hereby incorporated into the Services Agreement. Except as otherwise set forth in Section 8(d) of this BA Agreement, in the event of a conflict between the terms of this BA Agreement and the terms of the Services Agreement, the terms of this BA Agreement shall prevail. The terms of the Services Agreement which are not modified by this BA Agreement shall remain in full force and effect in accordance with the terms thereof. This BA Agreement shall be governed by, and construed in accordance with, the state where the Business Associate is located, exclusive of conflict of law rules. Each Party hereby agrees and consents that any legal action or proceeding with respect to this BA Agreement shall only be brought in the courts of the state where the Business Associate is located in the county where the Business Associate is located. The Services Agreement together with this BA Agreement constitutes the entire agreement between the Parties with respect to the subject matter contained herein, and this BA Agreement supersedes and replaces any former business associate agreement or addendum entered into by the Parties. This BA Agreement may be executed in counterparts, each of which when taken together shall constitute one original. Any PDF or facsimile signatures to this BA Agreement shall be deemed original signatures to this BA Agreement. No amendments or modifications to the BA Agreement shall be effective unless agreed upon by both Parties in writing.