1.Ownership Of The Site
All pages within this Site and any material made available for download are the property of Azova, or its licensors or suppliers, as applicable. The Site is protected by United States and international copyright and trademark laws. The Contents of the Site, including without limitation the files, documents, text, photographs, images, audio, and video, and any materials accessed through or made available for use or download through this Site (“Content”) may not be copied, distributed, modified, reproduced, published or used, in whole or in part, except for purposes authorized or approved in writing by Azova. You may not frame or utilize framing techniques to enclose, or deep linking to, any name, trademarks, service marks, logo, Content or other proprietary information (including; images, text, page layout, or form) of Azova without our express written consent.
To be a healthcare professional using the Site (“Customer”) you agree to comply with all laws, medical board rules and other rules and regulations applicable to you as a Customer or otherwise. Your relationship with the Azova users (including your patients) is directly between you and the patient. The patient will never have a physician-patient relationship with Azova. Azova does not practice medicine and offers no medical services. As set forth more fully in Section 10, Customer is solely responsible for all agreements, consents, notices and other interactions with patients and other consumers. Without limiting the generality of the foregoing, Customer is solely responsible for all billings and collections from patients and other third parties, and Azova shall have no liability whatsoever to Customer with respect to any amounts owed by any patient or other consumer to Customer.
3.Medical Judgment and Indemnification
Customer will use the Site and Services only in accordance with applicable standards of good medical practice. Customer is fully and solely responsible for compliance with all medical practice rules, including state and federal laws, as well as prescribing rules. While software products such as the Site and Services can facilitate and improve the quality of service that Customer and its personnel offer to patients, many factors, including the provider/patient relationship can affect a patient outcome, and with intricate and interdependent technologies and complex decision-making it is often difficult or impossible to accurately determine what the factors were and in what proportion they affected an outcome. As a result of the complexities and uncertainties inherent in the patient care process, Customer agrees to defend, indemnify and hold Azova harmless from any claim by or on behalf of any patient of Customer or its personnel, or by or on behalf of any other third party or person claiming damage by virtue of a familial or financial relationship with such a patient, or by any third party whatsoever (including state and federal agencies) which is brought against Azova, regardless of the cause if such claim arises for any reason whatsoever, out of the use or operation of the Site and Services. This indemnification includes Customer’s noncompliance with any and all insurance contracts or coverage, payment or reimbursement laws, rules and regulations. To the extent applicable, Customer will obtain Azova’s prior written consent to any settlement or judgment in which Customer agrees to any finding of fault of Azova or defect in the Site or Services. Azova will promptly notify Customer in writing of any claim subject to this indemnification, promptly provide Customer with the information reasonably required for the defense of the same, and grant to Customer exclusive control over its defense and settlement.
You consent to receive communications from us electronically. You agree that all agreements can be entered into and signed electronically in accordance with applicable law, and all notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such notice or other communications be in writing.
5.Site Access, Security and Restrictions; Passwords
6.License And Access
7.Termination of Account by Customer
If you desire to terminate your account, please see the provisions and process in the Platform Subscription Agreement.
8.Accuracy and Integrity of Information
Although Azova attempts to ensure the integrity and accurateness of the Site, it makes no representations, warranties or guarantees whatsoever as to the correctness or accuracy of the Site and Content thereon. It is possible that the Site could include typographical errors, inaccuracies or other errors, and that unauthorized additions, deletions and alterations could be made to the Site by third parties. In the event that an inaccuracy arises, please inform Azova so that it can be corrected. Information contained on the Site may be changed or updated without notice. Additionally, Azova shall have no responsibility or liability for information or Content posted to the Site from any non-Azova affiliated third party.
9.Export Policy and Restrictions
You acknowledge that the products and Content which are sold or licensed on the Site, which may include technology and software, are subject to the customs and export control laws and regulations of the United States of America and may also be subject to the customs and export laws and regulations of the country in which the products are manufactured and/or received. By purchasing, downloading or using technology or software from the Site, you agree to abide by the applicable laws, rules and regulations - including, but not limited to the Export Administration Act and the Arms Export Control Act - and you represent and warrant that you will not transfer, by electronic transmission or otherwise, the software or technology to a foreign national or a foreign destination in violation of the law. By purchasing any products, you agree that you will not use any products, or provide products to any person, who is forbidden from receiving the product under the Export Administration Regulations or any economic sanctions maintained by the U.S. Department of Treasury. U.S. antiboycott regulations, or U.S. economic sanctions, including the export and antiboycott restrictions found in the Export Administration Regulations or the sanctions regulations administered by the U.S. Office of Foreign Assets Control. You shall indemnify and hold harmless Azova from all claims, demands, damages, costs, fines, penalties, attorneys’ fees and all other expenses arising from your failure to comply with this provision and/or applicable export control, antiboycott, or economic sanctions laws and regulations.
10.Links to Other Sites
Azova makes no representations whatsoever about any other website that you may access through this Site. When you access a non-Azova site, please understand that it is independent from Azova, and that Azova has no control over the Content on that website. In addition, a link to a non-Azova website does not mean that Azova endorses or accepts any responsibility for the Content, or the use, of the linked site. It is up to you to take precautions to ensure that whatever you select for your use or download is free of such items as viruses, worms, Trojan horses, and other items of a destructive nature. If you decide to access any of the third party sites linked to this Site, you do this entirely at your own risk.
11.Customer Agreements and Other Content
If you submit, upload or post any agreements, contracts, consents, notices, advice, recommendations, comments, files, videos, images or other materials to us or our Site (“Customer Content”) or provide any Customer Content to patients or other consumers, you agree not to provide any Customer Content that (1) is defamatory, abusive, libelous, unlawful, obscene, threatening, harassing, fraudulent, pornographic, or harmful, or that could encourage criminal or unethical behavior, (2) violates or infringes the privacy, copyright, trademark, trade dress, trade secrets or intellectual property rights of any person or entity, or (3) contains or transmits a virus or any other harmful component. Customer is solely responsible for obtaining all necessary agreements and consents from, and providing all required notices to, patients and other consumers. You agree not to contact other users through unsolicited e-mail, telephone calls, mailings or any other method of communication. You represent and warrant to Azova that you have the legal right and authorization to upload all Customer Content at the Site. Azova shall have a royalty-free, irrevocable, transferable right and license to use the Customer Content however Azova desires, including without limitation, to copy, modify, delete in its entirety, adapt, publish, translate, create derivative works from and/or sell and/or distribute such Customer Content and/or incorporate such Customer Content into any form, medium or technology throughout the world. Azova is and shall be under no obligation (1) to maintain any Customer Content in confidence; (2) to pay to you any compensation for any Customer Content; or (3) to respond to any Customer Content. Customer acknowledges that although Azova will be maintaining patient medical information in the Azova system on behalf of Customer, Azova is not an electronic medical record system. Customer further acknowledges and agrees that it is Customer's responsibility to request, obtain, or make him or herself be aware of, any medical information pertaining to individual patients that may be stored outside of the Azova platform when providing telemedicine services through Azova. Azova does not regularly review Customer Content, but does reserve the right (but not the obligation) to monitor and edit or remove any Customer Content submitted to the Site. You grant Azova the right to use the name and any other information that you submit in connection with any Customer Content. To the extent that you upload biographical information, photographs, videos, or other information about yourself as Customer Content, you acknowledge that patients or other consumers will be able to view this information. You agree not to use a false email address, impersonate any person or entity, or otherwise mislead as to the origin of any Customer Content. You agree to allow Azova to use your biographical information, and photographs and videos that you provide for its marketing and promotional purposes. You are and shall remain solely responsible for the content of any Customer Content you post to the Site or provide to patients or other consumers. Azova and its affiliates take no responsibility and assume no liability for any Customer Content submitted by you or any third party. You agree to defend, indemnify and hold Azova harmless from and against all third party claims, damages and expenses (including reasonable attorneys’ fees) against or incurred by Azova arising out of any Customer Content you post or allow to be posted to the Site.
12.Claims of Copyright Infringement
We disclaim any responsibility or liability for copyrighted materials posted on our site. If you believe that your work has been copied in a manner that constitutes copyright infringement, please follow the procedures set forth below. Azova respects the intellectual property rights of others and expects its users to do the same. In accordance with the Digital Millennium Copyright Act ("DMCA"), we will respond promptly to notices of alleged infringement that are reported to Azova’s Designated Copyright Agent, identified below.
1.Identify the copyrighted works that you claim have been infringed.
2.Identify the material or link you claim is infringing (or the subject of infringing activity) and that access to which is to be disabled, including at a minimum, if applicable, the URL of the link shown on the Site where such material may be found.
3.Provide your mailing address, telephone number, and, if available, email address.
4.Include both of the following statements in the body of the Notice:
"I hereby state that I have a good faith belief that the disputed use of the copyrighted material is not authorized by the copyright owner, its agent, or the law (e.g., as a fair use)."
"I hereby state that the information in this Notice is accurate and, under penalty of perjury, that I am the owner, or authorized to act on behalf of the owner, of the copyright or of an exclusive right under the copyright that is allegedly infringed."
5. Provide your full legal name and your electronic or physical signature.
Deliver this Notice, with all items completed, to our Copyright Agent:
144 S. Main St. Alpine, UT 84004
13.Disclaimer of Warranties
AZOVA DOES NOT WARRANT THAT ACCESS TO OR USE OF THE SITE WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT DEFECTS IN THE SITE WILL BE CORRECTED. THIS SITE, INCLUDING ANY CONTENT OR INFORMATION CONTAINED WITHIN IT OR ANY SITE-RELATED SERVICE, IS PROVIDED "AS IS," WITH ALL FAULTS, WITH NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY OF INFORMATION, QUIET ENJOYMENT, AND TITLE/NON-INFRINGEMENT. AZOVA DOES NOT WARRANT THE ACCURACY, COMPLETENESS OR TIMELINESS OF THE INFORMATION OBTAINED THROUGH THE SITE. YOU ASSUME TOTAL RESPONSIBILITY AND RISK FOR YOUR USE OF THIS SITE, SITE-RELATED SERVICES, AND LINKED WEBSITES. AZOVA DOES NOT WARRANT THAT FILES AVAILABLE FOR DOWNLOAD WILL BE FREE OF VIRUSES, WORMS, TROJAN HORSES OR OTHER DESTRUCTIVE PROGRAMMING. YOU ARE RESPONSIBLE FOR IMPLEMENTING PROCEDURES SUFFICIENT TO SATISFY YOUR NEEDS FOR DATA BACK UP AND SECURITY. WARRANTIES RELATING TO PRODUCTS OR SERVICES OFFERED, SOLD AND DISTRIBUTED BY AZOVA ARE SUBJECT TO SEPARATE WARRANTY TERMS AND CONDITIONS, IF ANY, PROVIDED WITH OR IN CONNECTION WITH THE APPLICABLE PRODUCTS OR SERVICES.
14.No Provision of Advice or Services
As part of the Services, Azova provides a platform for Customer to communicate with consumers, potential consumers, patients, and potential patients. Azova does not provide any medical advice, legal advice, or representations in any way regarding any legal or medical issues associated with Customer, goods or services offered by Customer, including but not limited any compliance obligations or steps necessary to comply with any state or federal laws and regulations. Customer should seek legal counsel regarding any legal and compliance issues, and should not rely on any materials or content associated with the Services in determining Customer’s compliance obligations under law. Customer and Azova agree that Azova is not providing, to Customer or anyone else, medical advice or legal advice.
15.Limitation of Liability Regarding Use of Site
AZOVA AND ANY THIRD PARTIES MENTIONED ON THIS SITE ARE NEITHER RESPONSIBLE NOR LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE, OR OTHER DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM LOST PROFITS, LOST DATA, OR BUSINESS INTERRUPTION) ARISING OUT OF OR RELATING IN ANY WAY TO THE SITE, SITE-RELATED SERVICES, CONTENT OR INFORMATION CONTAINED WITHIN THE SITE, AND/OR ANY LINKED WEBSITE, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY AND WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOUR SOLE REMEDY FOR DISSATISFACTION WITH THE SITE, SITE-RELATED SERVICES, AND/OR LINKED WEBSITES IS TO STOP USING THE SITE AND/OR THOSE SERVICES. TO THE EXTENT ANY ASPECTS OF THE FOREGOING LIMITATIONS OF LIABILITY ARE NOT ENFORCEABLE, THE MAXIMUM LIABILITY OF AZOVA TO YOU WITH RESPECT TO YOUR USE OF THIS SITE IS $500 (FIVE HUNDRED DOLLARS).
Azova provides a cloud based platform to enable healthcare professionals to connect with consumers seeking telehealth services (together with any additional services that Customer may order, the “Services”). Azova does not provide consultation, advice, diagnostic or treatment recommendations. Azova is solely a platform by which consumers can connect with Customer. During the Term and subject to Customer’s payment of all relevant fees, Azova grants Customer a non-exclusive, non-transferable revocable right to access and use the Services pursuant to and in accordance with the provisions of this Agreement. Customer may not transfer or offer access to the Services for any affiliates, subsidiaries, parent corporations, or affiliate entities. If Customer is required to install and download software from Azova in connection with the Services, Azova provides Customer with a limited, personal, non-exclusive, non-transferable, non-sublicensable, revocable license to use the software in accordance with the provisions of this Agreement. Services ordered by Customer are set forth in the applicable order document, substantially the form of Exhibit A (Services) (“Order”).
The term of this Agreement will begin on the Effective Date (and include the Trial Period) and will continue thereafter unless either party gives notice to the other of its intent terminate this Agreement in accordance with Section 22.1 (Termination) (“Term”).
Customer and its employees and contractors, and the consumers receiving consultations (collectively, the “Users”) may only use the Services for the purpose of providing and receiving telehealth consultations by Customer. Customer is responsible for ensuring its Users comply with all relevant terms of this Agreement and any failure to comply will constitute a breach by Customer. Except as expressly authorized by this Agreement, Customer will not, and will not allow any User or other third party to, engage in or use the Services: (i) to permit any third party to access or use the Services other than a User, (ii) to decompile, disassemble, reverse engineer, or otherwise attempt to derive the trade secrets embodied in the Services, (iii) to use the Services or any Azova confidential information to develop a competing product or service, (iv) to use any Service in violation of any export control laws or regulations administered by the U.S. Commerce Department or any other government agency, (v) to remove any copyright, trademark, proprietary rights, disclaimer, or warning notice included on or embedded in any part of the Service, including any screen displays, etc., or any other products or materials provided by Azova hereunder, (vi) to use the Service in a manner that violates privacy rights or that constitutes infringement of the intellectual property or other proprietary rights, (vii) for fraudulent or illegal purposes, and/or (v) to use the Service that otherwise violates Azova policies, applicable laws, ordinances or regulations. Under no circumstances will Azova be liable or responsible for any use, or any results obtained by the use, of the Services in conjunction with any services, software, or hardware that are not provided by Azova. All such use will be at Customer’s sole risk and liability.
4. Customer Branded Solution
Subject to the applicable fees, Azova may offer to Customer a Customer branded portal access enabling Users to access the Services via a Customer branded webpage and/or mobile application (“Branded Solution”). The Branded Solution will include such attribution as Azova may prescribe in Azova’s sole discretion. The attribution will be placed in a location satisfactory to Azova in Azova’s sole discretion. Customer is responsible for all Customer Content (as defined in this Agreement) placed on the Branded Solution and elsewhere. Customer agrees that it is the information content provider for all Customer Content posted on the Branded Solution, and that pursuant to Section 230 of the Communications Decency Act, Azova shall not be treated as the publisher or speaker of any Customer Content. Azova does not endorse, approve, or vet any Customer Content placed on the Branded Solution or made available through Azova in any way. All Customer Content is Customer’s responsibility, and Azova shall not be liable for any reason for anything posted by Customer. To the extent that Customer stores, processes, accesses or transmits payment card “Account Data,” “Cardholder Data,” or “Sensitive Authentication Data” (as defined by the Payment Card Industry Data Security Standard, hereafter “PCI DSS”), Customer represents and warrants that it stores, transmits and processes such data in compliance with PCI DSS requirements as well as any other applicable payment standards, or applicable laws and regulations. Customer further represents and warrants that it shall continue to be fully compliant with all such standards, laws and regulations for all times that it stores, processes, accesses, or transmits payment card “Account Data.” Customer further acknowledges that it is Customer’s ongoing responsibility hereunder for securing Cardholder Data and Sensitive Authentication Data in accordance with the PCI DSS. Should Customer fail to maintain compliant practices in accordance with this section, such failure shall be deemed a material breach of this Agreement.
Azova shall undertake commercially reasonably measures to ensure that the Services shall be available for access and use by Customer, except during pre-scheduled maintenance or in accordance with Section 24.3 (Force Majeure). In the event the Services are not available for use, Azova shall use commercially reasonable efforts to correct the interruption as promptly as practicable. In the event Azova is unable to correct the availability of the Services to Customer’s satisfaction, Customer may terminate this Agreement and receive a prorated refund of any pre-paid, unused recurring fees. Such refund shall constitute Customer’s sole and exclusive remedy and Azova’s sole and exclusive liability for failure to make the Services available for use. Customer and Azova specifically agree that Azova is not liable for any consequential or incidental damages associated with use of the Services, including, but not limited to, damages associated with lost profits or the unavailability of the Services.
Customer and Users are solely responsible for all telecommunication or Internet connections required to access the Services, and pay for all telecommunications costs, fees and services required for Customer’s and Users’ access to the Services.
7. No Provision of Advice or Services
As part of the Services, Azova provides a platform for Customer to communicate with consumers, potential consumers, patients, and potential patients. Azova does not provide any medical advice, legal advice, or representations in any way regarding any legal or medical issues associated with Customer, goods or services offered by the Customer, including, but not limited to, any compliance obligations or steps necessary to comply with any state or federal laws and regulations. Customer should seek legal counsel regarding any legal and compliance issues, and should not rely on any materials or content associated with the Services in determining Customer’s compliance obligations under law. Customer and Azova agree that Azova is not providing, to Customer or anyone else, medical advice or legal advice.
Each party agrees to comply with all applicable federal, state and local laws in performing its obligations hereunder, and Customer agrees that Customer is solely responsible for ensuring compliance with all Customer Content and Customer’s business practices (including, but not limited to, any offerings made via the Branded Solution), which include, but are not limited to, the federal and state anti-kickback and self-referral laws and regulations at all times during the term of this Agreement. The parties acknowledge that although Azova is obligated to provide the Services as specified in this Agreement, there is no obligation of Azova to refer patients to Customer or any affiliate of Customer, and there is no obligation of Customer to refer patients to any person or business entity. Notwithstanding the unanticipated effect of any of the provisions herein, the parties intend to comply with 42 U.S.C. § 1320a-7b(b) (commonly known as the Anti-Kickback Statute), 42 U.S.C. § 1395nn (commonly known as the Stark Law) and any other federal or state law provision governing fraud and abuse or self-referrals, as such provisions may be amended from time to time. This Agreement will be construed in a manner consistent with compliance with such statutes and regulations, and the parties hereto agree to take such actions necessary to construe and administer this Agreement accordingly. The parties hereto represent, covenant and agree that the compensation due to Azova under this Agreement and the Order has been determined through good faith and arm’s length bargaining to be commercially reasonable. The sole purpose of the payments to Azova hereunder is to pay fair market value for Services actually rendered by Azova to Customer hereunder. These Services strictly and solely provide a cloud-based platform to enable healthcare professionals to connect with consumers, and do not involve any provision of any Services by Azova to any customer or client of Customer. No amount paid hereunder is intended to be, nor shall be construed as, an inducement or payment for referral of, or recommending referral of, patients by Azova (or its employees and agents) to Customer (or its employees or agents) or by Customer (or its employees and agents) to Azova (or its employees and agents). In addition, fees charged hereunder do not include any discount, rebate, kickback, or other reduction in charge. This Agreement shall be interpreted and construed at all times in a manner consistent with applicable laws and regulations governing the financial relationships among individuals and entities that provide or arrange for the provision of items or services that are reimbursable by governmental health care programs or other third party payors.
9. No Referrals
The parties acknowledge that none of the benefits granted hereunder, and none of the Services offered or the compensation due to Azova pursuant to the Agreement and the Order, are conditioned on any requirement that either party make referrals to, be in a position to make or influence referrals to, or otherwise generate business for the other party. Customer shall be solely responsible for any and all billing, coding and collections associated with the services Customer provides its patients, including the determination of whether or not such services are covered by health plans, governmental agencies, third party payers or other financially-responsible parties. In no event shall Azova be responsible for Customer’s billing or billing practices.
10. Business Associate Agreement
The parties agree to the terms and conditions contained in the Business Associate Agreement (“BAA”) set forth in Exhibit B to this Agreement.
11. Proprietary Rights
Customer acknowledges and agrees that (i) the Services are protected by intellectual property rights, as applicable, of Azova and its vendors/licensors and that Customer has no right to transfer or reproduce the Services, in whole or in part, or prepare any derivative works with respect to, or disclose confidential information pertaining to, any Services or any part of them, and (ii) that Azova owns all right, title, and interest in and to the Services, including any changes or modifications made to the Services whether or not performed subject to an Order, together with all ideas, architecture, algorithms, models, processes, techniques, user interfaces, database design and architecture, and “know-how” embodying the Services. Under no circumstances will Customer be deemed to receive title to any portion of the Services, title to which at all times will vest exclusively in Azova. Customer will not use any confidential information disclosed by Azova to Customer to contest the validity of any intellectual property rights of Azova or its licensors. Any such use of Azova’s confidential information and data will constitute a material, non-curable breach of this Agreement.
12. Customer Consent
Customer grants Azova a non-exclusive, world-wide, royalty-free license to use the data and other information input by Customer into the Services (the “Customer Content”) for purposes of performing this Agreement, as directed or instructed by Customer and its Users (e.g., in the context of support requests), Azova policies, and/or applicable law. Customer will be responsible for obtaining all rights, permissions, and authorizations to with respect to the Customer Content for use as contemplated under this Agreement. Except for the license granted in this Section, nothing contained in this Agreement will be construed as granting Azova any right, title, or interest in the Customer Content. Customer shall retain a copy of Customer Content outside the Services. Customer shall comply with all intellectual property, marketing laws, advertising laws, privacy laws, and all other laws and regulations related to the Customer Content and shall comply with all legal duties applicable to Customer. Specifically, Customer shall provide the relevant Users with all information or notices Customer is required by applicable privacy and data protection law to provide and, if necessary, obtain the consent of or provide choices to such Users as required by such laws. Azova and Customer shall apply reasonable technical, organizational and administrative security measures to keep Customer Content protected in accordance with industry standards. Customer is solely responsible for the configuration of its Service account and configuration, operation, performance and security of its equipment, networks and other computing resources, including its gateways or other devices and networks used to connect to the Services. This Section states Azova’s exclusive obligations with respect to Customer Content.
13. Aggregated Data
Customer grants Azova a non-exclusive, perpetual, irrevocable, fully-paid-up, royalty free license to use, copy, distribute, and otherwise exploit statistical and other aggregated data derived from Customer’s use of Services (the “Aggregated Data”) for Azova’s business purposes, including the provision of products and services to Azova’s customers. Aggregated Data does not include information identifying Customer or any identifiable individual. The Aggregated Data will not be considered Customer’s confidential information.
Customer may provide suggestions, comments or other feedback (collectively, “Feedback”) to Azova with respect to its products and services, including the Services. Feedback is voluntary. Azova may use Feedback for any purpose without obligation of any kind. To the extent a license is required under Customer’s intellectual property rights to make use of the Feedback, Customer grants Azova an irrevocable, non-exclusive, perpetual, fully-paid-up, royalty-free license to use the Feedback in connection with Azova’s business, including the enhancement of the Services.
15. Support and Maintenance
If Customer purchases support and maintenance as part of the Service pursuant to the Order, then Azova will provide Customer with reasonable telephone assistance for Customer’s technical support contact with setting up new user accounts, demonstrations, training, and technical support. Azova’s telephone support is available Monday through Friday, 9 a.m. to 5 p.m. EST, except for state and federal holidays or any downtimes associated with operational or logistical issues. Additional support may be available in Azova’s sole discretion, and may be subject to additional fees and the terms and conditions of the Order.
16.1 Payment of Invoices
Customer will pay Azova the fees set forth in the Orders. Customer will pay all invoices within thirty (30) days of invoice date. Payments not made within that time period will be subject to late charges equal to the lesser of (a) one and one-half percent (1.5%) per month of the overdue amount or (b) the maximum amount permitted under applicable law. On notice of not less than ninety (90) days, Azova may, at its discretion, adjust any or all fees by providing notice to Customer on writing.
In addition to any other payments due under this Agreement, Customer agrees to pay, indemnify and hold Azova harmless from any sales, use, transfer, privilege, tariffs, excise, and all other taxes and all duties, whether international, national, state, or local, however designated, which are levied or imposed by reason of the performance of the Services under this Agreement; excluding, however, income taxes on profits which may be levied against Azova.
16.3 Data Transfer Fee
If, upon termination of this Agreement or closing of Customer’s account, Azova will upon request transfer Customer’s stored data to the storage service of Customer’s choice at a data transfer fee of $275.00 per healthcare professional on Customer’s account. Once the account has been closed and the Customer data has been transferred, Azova will no longer retain a copy of Customer’s data.
17. Customer Obligations
Customer will perform its obligations in accordance with the requirements of this Agreement in a commercially reasonable manner. Customer’s failure to perform its obligations may adversely affect Azova’s ability to meet its performance obligations and the parties agree that if Customer fails to perform its material obligations, Azova will promptly notify Customer of the failure and the reasonably anticipated consequences of the failure, and the parties will negotiate in good faith to arrive at an equitable adjustment to the terms of this Agreement to compensate Azova for any additional effort and costs directly caused by Customer’s delay or failure to perform. Further, Customer’s failure to perform certain tasks may prevent or disrupt Customer from having access to Services. Customer is responsible for preserving and making adequate backups of its data.
18.1 Customer Warranty
Customer represents and warrants that (a) it has full power, capacity, and authority to enter into this Agreement and to grant the license set forth in Section 12 (Customer Content); (b) any Customer Content provided by Customer for use in connection with the Services does not and will not infringe the intellectual property, publicity, or privacy rights of any person and is not defamatory, obscene, or in violation of applicable foreign, federal, state and local laws, rules and regulations (including, but not limited to, applicable policies and laws related to spamming, such as CAN-SPAM, privacy, and consumer protection) (collectively, “Applicable Law”); (c) its use of the Services will be in compliance with all Applicable Law; and (d) neither Customer nor any Users shall make any representations with respect to Azova, the Services or this Agreement (including, without limitation, that Azova is a warrantor or co-seller or provider of any of Customer’s products and/or services).
18.2 Azova Warranty
During the Term, Azova represents and warrants the Services will substantially comply with the specifications, if any, and as otherwise described in the then current documentation made generally available by Azova to its customers regarding the Services. In the event of a breach of the warranty, Azova’s sole and exclusive liability and Customer’s sole and exclusive remedy will be to provide restored or replacement service which conforms to this warranty.
18.3 Disclaimer of Warranties
EXCEPT AS PROVIDED IN SECTION 18.2, THE SERVICES ARE PROVIDED “AS IS” AND “AS-AVAILABLE,” WITH ALL FAULTS, AND WITHOUT WARRANTIES OF ANY KIND. AZOVA AND ITS VENDORS AND LICENSORS DISCLAIM ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, QUALITY OF INFORMATION, TITLE, AND NON-INFRINGEMENT. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY AZOVA OR ITS AUTHORIZED REPRESENTATIVES WILL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF AZOVA’S OBLIGATIONS HEREUNDER. THE SERVICES MAY BE USED TO ACCESS AND TRANSFER INFORMATION OVER THE INTERNET. CUSTOMER ACKNOWLEDGES AND AGREES THAT AZOVA AND ITS VENDORS AND LICENSORS DO NOT OPERATE OR CONTROL THE INTERNET AND THAT: (I) VIRUSES, WORMS, TROJAN HORSES, OR OTHER UNDESIRABLE DATA OR SOFTWARE; OR (II) UNAUTHORIZED USERS MAY ATTEMPT TO OBTAIN ACCESS TO AND DAMAGE CUSTOMER’S DATA, WEB SITES, COMPUTERS, OR NETWORKS. AZOVA WILL NOT BE RESPONSIBLE FOR SUCH ACTIVITIES.
Customer will defend and indemnify Azova and hold it harmless from any and all claims, losses, deficiencies, damages, liabilities, costs, and expenses (including, but not limited to, reasonable attorneys’ fees) incurred by Azova as a result of any claim by a third party arising from or related to any (i) Customer breach of this Agreement, (ii) Customer’s use of the Services in breach of this Agreement, or (iii) Customer Content. Customer’s indemnification obligations also include Customer’s noncompliance with any and all insurance contracts or coverage, payment or reimbursement laws, rules and regulations, and Azova makes no guarantee the use of the Services comply with government or third party payor reimbursement rules. Customer additionally indemnifies and holds Azova harmless for any and all losses, liabilities, damages, claims, costs, penalties, expenses, and fees (including, but not limited to, reasonable attorneys’ fees, disbursements of counsel, and costs of investigation, litigation, third party discovery, and settlement) arising out of or in connection with the introduction by Customer (whether inadvertent or purposeful) of any computer virus or malicious computer program into Azova’s computing systems, website code, or the unauthorized access of Customer or User data as result of unauthorized access to any of Azova’s computing systems or data.
20. Data Security and Confidentiality
In conjunction with the Services, from time to Customer and Azova may exchange Personally Identifiable Information (“PII”), as well as Protected Health Information (“PHI”). PII means any information identified as PII by law or regulation, or information relating to an identified or identifiable person and that, either by itself or in combination with other pieces of information, identifies, or can be used to identify, an individual. Examples of Personal Information include, but are not limited to, names, phone numbers, addresses, credit card information, social security numbers, as well as account or financial information. PHI means any information identified as PHI by law or regulation, such as individually identifiable health information. Customer and Azova agree to take such measures as required by law or regulation regarding the handling of PII, PHI, and any confidential data protected by law or regulation, and to adhere to the terms of the BAA attached hereto as Exhibit B. Customer further understands and agree that Azova may use system message logging, which may cache and store a copy of all conversations on our servers or secure messaging platforms to make them available across multiple devices or platforms to both parties to the conversation. Azova may automatically scan the content of messages sent or received on secure messaging platforms to enable or facilitate the performance of the Services or to improve features and functionality. For example, Azova may follow the links transmitted in messages in order to discern the format of those links and enable Azova to locate and retrieve the content.
21. Limitation of Liability and Damages
NEITHER AZOVA NOR ITS VENDORS AND LICENSORS WILL HAVE ANY LIABILITY TO CUSTOMER OR ANY THIRD PARTY FOR ANY LOSS OF PROFITS, SALES, TRADING LOSSES, BUSINESS, DATA, OR OTHER INCIDENTAL, CONSEQUENTIAL, OR SPECIAL LOSS OR DAMAGE, INCLUDING EXEMPLARY AND PUNITIVE, OF ANY KIND OR NATURE RESULTING FROM OR ARISING OUT OF THIS AGREEMENT, INCLUDING USE OF OR INABILITY TO USE THE SERVICES. THE TOTAL LIABILITY OF AZOVA AND ITS VENDORS AND LICENSORS TO CUSTOMER OR ANY THIRD PARTY ARISING OUT OF THIS AGREEMENT OR USE OF THE SERVICES IN CONNECTION WITH ANY CLAIM OR TYPE OF DAMAGE (WHETHER IN CONTRACT OR TORT, INCLUDING NEGLIGENCE) WILL NOT EXCEED THE TOTAL FEES PAID HEREUNDER BY CUSTOMER DURING THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY. THIS LIMITATION OF LIABILITY WILL APPLY EVEN IF THE EXPRESS WARRANTIES SET FORTH ABOVE FAIL OF THEIR ESSENTIAL PURPOSE.
Either party may terminate this Agreement, with or without cause, upon thirty (30) days prior written notice.
22.2 Suspension of Services
Azova may, in its sole discretion, immediately suspend Customer’s access to the Services for any of the following reasons: (a) to prevent damages or risk to, or degradation of, the Services; (b) to comply with any law, regulation, court order, or other governmental request; (c) to otherwise protect Azova from potential legal liability; or (d) in the event an invoice remains unpaid for more than thirty (30) days from the invoice date. Azova will use reasonable efforts to provide Customer with notice prior to or promptly following any suspension of the Services. Azova will promptly restore access to the Services as soon as the event giving rise to suspension has been resolved. This Section will not be construed as imposing any obligation or duty on Azova to monitor use of the Services.
22.3 Effect of Termination
Upon termination of this Agreement or termination of a particular Service for any reason: (a) Customer’s and all Users’ access to and use of the terminated Services will cease as of the effective date of termination; (b) Azova will cease to provide the Services, and Customer will pay to Azova all undisputed sums due to Azova for Services and authorized expenses incurred through the effective date of such expiration or termination (prorated as appropriate); and (c) Azova, at its sole discretion, may take reasonable steps to assist Customer in making an orderly transition of data related to the Services back to Customer or its designees and may notify all affected Users of the termination of this Agreement and either provide the Users with any applicable data or direct Users to Customer to obtain a copy of any User data provided to Customer utilizing the Services. Subsequent to the termination of this Agreement, the parties agree that Azova bears no responsibility for maintaining or preserving any Customer Content, User data, or data related to any Services provided to Customer or Users, including, but not limited to, User data provided to Customer utilizing such Services, but that Azova may in its discretion retain any such data for any period of time.
23. General Provisions
23.1 Affiliates, Subcontractors and Vendors
Some or all of the Services, including support, may be provided by Azova’s affiliates, agents, subcontractors and information system vendors. The rights and obligations of Azova may be, in whole or in part, exercised or fulfilled by the foregoing entities. Azova shall ensure such entities comply with all relevant terms of this Agreement and any failure to do so shall constitute a breach by Azova.
Azova may identify Customer as a customer in its customer listings, websites, and other promotional materials. In addition, Azova may issue a press release regarding the parties’ relationship under this Agreement.
23.3 Force Majeure
Except for the payment of money as described in Section 16 (Fees) of this Agreement, neither party will be liable for any failure or delay in performance under this Agreement which is due to any event beyond the reasonable control of such party, including, without limitation, fire, explosion, unavailability of utilities or raw materials, Internet delays and failures, telecommunications failures, unavailability of components, labor difficulties, war, riot, act of God, export control regulation, laws, judgments or government instructions.
23.4 Entire Agreement; Ammendment
This Agreement sets forth the entire agreement between the parties with regard to the subject matter hereof. No other agreements, representations, or warranties have been made by either party to the other with respect to the subject matter of this Agreement, except as referenced herein. To the extent that this Agreement conflicts with any click-wrap, browse-wrap, or online agreements (such as website terms of service or privacy policies), the language in this Agreement shall control.
23.5 Governing Law, Venue, Limitations of Actions
This Agreement will be construed according to, and the rights of the parties will be governed by, the law of the State of Utah, without reference to its conflict of laws rules or provisions, and the exclusive forum and venue for any dispute regarding or related to this Agreement shall be arbitration as set forth below.
23.6 Binding Arbitration
THIS IS A FULL WAIVER OF JURY TRIAL RIGHTS AND BINDING ARBITRATION. All disputes under, concerning or relating to this Agreement shall be resolved by mandatory binding arbitration. The arbitration proceeding shall be administered by the American Arbitration Association (“AAA”) or such other administrator, as the parties shall mutually agree upon. Arbitration shall be conducted in accordance with the AAA Commercial Arbitration Rules. If there is any inconsistency between the terms hereof and any such rules, the terms and procedures set forth herein shall control. A single arbitrator will resolve the dispute and shall be selected by mutual agreement of the parties. If the parties are unable to agree to an arbitrator, the AAA shall select and appoint the arbitrator. The arbitration shall be conducted in Utah County, Utah or such other location as may be mutually agreed upon by the parties. All statutes of limitation applicable to any dispute shall apply to any arbitration proceeding. All discovery activities shall be expressly limited to matters directly relevant to the dispute being arbitrated and subject to limitation by the arbitrator to a level commensurate with the amount in controversy and complexity of the issues involved. Judgment upon any award rendered in arbitration may be entered in any court having jurisdiction.
23.7 Compliance with Laws
Both parties agree to comply with all applicable local, state, national and foreign laws, rules, and regulations, including, but not limited to, all applicable data protection, privacy, anti-spam, export and import laws and regulations, in connection with their performance, access and/or use of the Services under this Agreement. Azova does not guarantee the Services are appropriate and/or available for use in any particular context or location and Customer is responsible for compliance with local laws to the extent applicable. Azova reserves the right to modify the Services for any reason, without notice and without liability to Customer or any User, to comply with applicable law.
23.8 No Third Party Beneficiaries
There are no third party beneficiaries to this agreement.
23.9 Relationship of the Parties
The parties agree that Azova will perform its duties under this Agreement as an independent contractor. Nothing contained in this Agreement will be deemed to establish a partnership, joint venture, association, or employment relationship between the parties. Personnel employed or retained by Azova who perform duties related to this Agreement will remain under the supervision, management, and control of Azova.
Customer may not assign this Agreement without the prior written consent of Azova. Azova may assign this Agreement without the prior written consent of Customer.
If any of the provisions of this Agreement are found or deemed by a court to be invalid or unenforceable, they will be severable from the remainder of this Agreement and will not cause the invalidity or unenforceability of the remainder of this Agreement.
Neither party will by mere lapse of time without giving notice or taking other action hereunder be deemed to have waived any breach by the other party of any of the provisions of this Agreement. Further, the waiver by either party of a particular breach of this Agreement by the other party will not be construed as, or constitute, a continuing waiver of such breach.
The following provisions will survive termination or expiration of this Agreement: 11 (Proprietary Rights), 18.3 (Disclaimer of Warranties), 19 (Indemnity), 20 (Data Security and Confidentiality), 22 (Limitation of Liability and Damages), 23 (Termination), and 24 (General Provisions).
Any written notice or demand required by this Agreement will be sent by electronic mail (delivery receipt requested) to the email address provided in this Agreement. The notice will be effective as of the date of delivery. Any party may change the email address at which it receives notices by giving written notice to the other party in the manner prescribed by this Section.
1.1. “Breach” shall have the meaning given such term under 45 C.F.R. § 164.402.
1.2. “Designated Record Set” shall have the meaning given such term under 45 C.F.R. § 164.501.
1.3. “Disclose” and “Disclosure” mean, with respect to PHI, the release, transfer, provision of access to, or divulging in any other manner of PHI outside of Business Associate or to other than members of its Workforce, as set forth in 45 C.F.R. § 160.103.
1.4. “Electronic PHI” or “e-PHI” means PHI that is transmitted or maintained in electronic media, as set forth in 45 C.F.R. § 160.103.
1.5. “Protected Health Information” and “PHI” mean any information, whether oral or recorded in any form or medium, that: (a) relates to the past, present or future physical or mental health or condition of an individual; the provision of health care to an individual, or the past, present or future payment for the provision of health care to an individual; (b) identifies the individual (or for which there is a reasonable basis for believing that the information can be used to identify the individual); and (c) shall have the meaning given to such term under the Privacy Rule, including, but not limited to, 45 C.F.R. § 160.103. Protected Health Information includes e-PHI.
1.6. “Security Incident” shall have the meaning given to such term under 45 C.F.R. § 164.304.
1.7. “Services” shall mean the services for or functions on behalf of Covered Entity performed by Business Associate pursuant to any service agreement(s) between Covered Entity and Business Associates which may be in effect now or from time to time (“Underlying Agreement”), or, if no such agreement is in effect, the services or functions performed by Business Associate that constitute a Business Associate relationship, as set forth in 45 C.F.R. § 160.103.
1.8. “Subcontractor” shall have the meaning given to such term under 45 C.F.R. § 160.103.
1.9. “Unsecured PHI” shall have the meaning given to such term under 45 C.F.R. § 164.402.
1.10. “Use” or “Uses” mean, with respect to PHI, the sharing, employment, application, utilization, examination or analysis of such PHI within Business Associate’s internal operations, as set forth in 45 C.F.R. § 160.103.
1.11. “Workforce” shall have the meaning given to such term under 45 C.F.R. § 160.103.
2.1. Permitted Uses and Disclosures of Protected Health Information. Business Associate shall not Use or Disclose PHI other than for the purposes of performing the Services, as permitted or required by this BAA, or as Required by Law. Business Associate shall not Use or Disclose PHI in any manner that would constitute a violation of Subpart E of 45 C.F.R. Part 164 if so Used or Disclosed by Covered Entity. Without limiting the generality of the foregoing, Business Associate is permitted to (i) Use PHI for the proper management and administration of Business Associate; (ii) Use and Disclose PHI to carry out the legal responsibilities of Business Associate, provided that with respect to any such Disclosure either: (a) the Disclosure is Required by Law or (b) Business Associate obtains an agreement from the person to whom the PHI is to be Disclosed that such person will hold the PHI in confidence and will not Use and further Disclose such PHI except as Required by Law and for the purpose(s) for which it was Disclosed by Business Associate to such person, and that such person will notify Business Associate of any instances of which it is aware in which the confidentiality of the PHI has been breached; (iii) Use PHI for Data Aggregation purposes in connection with the Health Care Operations of Covered Entity; and (iv) Use PHI for purposes of de-identification of the PHI.
2.2. Adequate Safeguards of PHI. Business Associate shall implement and maintain appropriate safeguards and shall comply with the applicable requirements of Subpart C of 45 C.F.R. Part 164 to prevent Use or Disclosure of PHI other than as provided for by this BAA.
2.3. Reporting Security Incidents and Non-Permitted Uses or Disclosures of PHI. Business Associate shall notify Covered Entity of any Use or Disclosure by Business Associate or its Subcontractors that is not specifically permitted by this BAA and each Security Incident, including Breaches of Unsecured PHI, within five (5) business days of becoming aware. Notwithstanding the foregoing, Business Associate and Covered Entity acknowledge the ongoing existence and occurrence of attempted but ineffective Security Incidents that are trivial in nature, such as pings and other broadcast service attacks, and Covered Entity acknowledges and agrees that no additional notification to Covered Entity of such ineffective Security Incidents is required, as long as no such incident results in unauthorized access, Use or Disclosure of PHI. If Business Associate determines that a Breach of Unsecured PHI has occurred, Business Associate shall provide a written report to Covered Entity without unreasonable delay but no later than thirty (30) calendar days after discovery of the Breach. To the extent that information is available to Business Associate, Business Associate’s written report to Covered Entity shall be in accordance with 45 C.F.R. §164.410(c).
2.4. Use of Subcontractors. Business Associate shall require each of its Subcontractors that creates, maintains, receives, or transmits PHI on behalf of Business Associate, to execute a Business Associate Agreement that imposes on such Subcontractors substantially the same restrictions, conditions, and requirements that apply to Business Associate under this BAA with respect to PHI.
2.5. Access to Protected Health Information. To the extent that Business Associate maintains a Designated Record Set on behalf of Covered Entity, Business Associate shall make the PHI it maintains (or which is maintained by its Subcontractors) in such Designated Record Sets available to Covered Entity for inspection and copying to enable Covered Entity to fulfill its obligations under 45 C.F.R. § 164.524 within fifteen (15) business days of a request by Covered Entity.
2.6. Amendment of Protected Health Information. To the extent that Business Associate maintains a Designated Record Set on behalf of Covered Entity, Business Associate shall amend the PHI it maintains (or which is maintained by its Subcontractors) in Designated Record Sets to enable the Covered Entity to fulfill its obligations under 45 C.F.R. § 164.526 within fifteen (15) business days of a request by Covered Entity.
2.7. To the extent that Business Associate maintains a Designated Record Set on behalf of Covered Entity, within thirty (30) days of receipt of a request from Covered Entity or an individual for an accounting of disclosures of PHI, Business Associate and its Subcontractors shall make available to Covered Entity the information required to provide an accounting of disclosures to enable Covered Entity to fulfill its obligations under 45 C.F.R. § 164.528 and 42 U.S.C. § 17935(c).
2.8. Delegated Responsibilities. To the extent that Business Associate carries out one or more of Covered Entity’s obligations under Subpart E of 45 C.F.R. Part 164, Business Associate must comply with the requirements of Subpart E that apply to the Covered Entity in the performance of such obligations.
2.9. Availability of Internal Practices, Books, and Records to Government. Business Associate agrees to make its internal practices, books and records relating to the Use and Disclosure of Covered Entity’s PHI available to the Secretary for purposes of determining Covered Entity’s compliance with HIPAA, the HIPAA Regulations, and the HITECH Act.
3.1. Covered Entity shall notify Business Associate of any limitation(s) in the Notice of Privacy Practices of Covered Entity under 45 C.F.R. § 164.520, to the extent that such limitation may affect Business Associate’s Use or Disclosure of PHI.
3.2. Covered Entity shall notify Business Associate of any changes in, or revocation of, the permission by an individual to Use or Disclose his or her PHI, to the extent that such changes may affect Business Associate’s Use or Disclosure of PHI.
3.3. Covered Entity shall notify Business Associate of any restriction on the Use or Disclosure of PHI that covered entity has agreed to or is required to abide by under 45 C.F.R. § 164.522, to the extent that such restriction may affect Business Associate’s Use or Disclosure of PHI.
3.4. Covered Entity agrees to obtain any consent or authorization that may be required under HIPAA or any other applicable law and/or regulation prior to furnishing Business Associate with PHI.
3.5. Covered Entity shall not request Business Associate to make any Use or Disclosure of PHI that would not be permitted under HIPAA if made by Covered Entity.
3.6. Covered Entity agrees to fulfill its obligations under this BAA in a timely manner.
The term of this BAA shall be effective as of the Effective Date and shall terminate as of the date that all of the PHI provided by Covered Entity to Business Associate, or created or received by Business Associate on behalf of Covered Entity, is destroyed or returned to Covered Entity, or, if it is infeasible to return or destroy the PHI, protections are extended to such information.
4.2. Termination for Cause
Upon Covered Entity’s or Business Associate’s knowledge of a material breach or violation of this BAA by the other Party, the non-breaching Party shall either:
A. Notify breaching Party of the breach in writing, and provide an opportunity for breaching Party to cure the breach or end the violation within thirty (30) business days of such notification; provided that if breaching Party fails to cure the breach or end the violation within such time period to the satisfaction of non-breaching Party, non-breaching Party may immediately terminate this BAA upon written notice to Business Associate; or
B. Upon thirty (30) business days written notice to Business Associate, immediately terminate this BAA if Covered Entity determines that such breach cannot be cured.
4.3. Disposition of Protected Health Information Upon Termination or Expiration.
A. Upon termination or expiration of this BAA, Business Associate shall either return or destroy all PHI received from, or created or received by Business Associate on behalf of Covered Entity, that Business Associate still maintains in any form and retain no copies of such PHI.
B. If return or destruction is not feasible, Business Associate shall continue to extend the protections of this BAA to the PHI for as long as Business Associate retains the PHI and limit further Uses and Disclosures of such PHI to those purposes that make the return or destruction of the PHI infeasible.
5.1. Relationship to Underlying Agreement Provisions.
In the event that a provision of this BAA is contrary to a provision of an Underlying Agreement, the provision of this BAA shall control. Otherwise, this BAA shall be construed under, and in accordance with, the terms of such Underlying Agreement, and shall be considered an amendment of and supplement to such Underlying Agreement, subject to Section 5.2 below.
Any notices required or permitted to be given hereunder by either Party to the other shall be given in writing: (1) by personal delivery; (2) by electronic mail or facsimile with confirmation sent by United States first class registered or certified mail, postage prepaid, return receipt requested; (3) by bonded courier or by a nationally recognized overnight delivery service; or (4) by United States first class registered or certified mail, postage prepaid, return receipt, in each case, if addressed to Azova at 144 S. Main St., Alpine, Utah, 84004, and if to Covered Entity, to the address it provides to Customer. Notices shall be deemed received on the earliest of personal delivery; upon delivery by electronic facsimile with confirmation from the transmitting machine that the transmission was completed; twenty-four (24) hours following deposit with a bonded courier or overnight delivery service; or seventy-two (72) hours following deposit in the U.S. mail as required herein.
5.3. No Third Party Beneficiaries.
Nothing expressed or implied in this BAA or the Underlying Agreement is intended to confer, nor will it confer, upon any person any rights, remedies, obligations or liabilities other than those explicitly detailed in this BAA or in the Underlying Agreement.
5.4. Relationship of Parties.
Notwithstanding anything to the contrary in any Underlying Agreement, Business Associate is an independent contractor and not an agent of Covered Entity under this BAA. Business Associate has the sole right and obligation to supervise, manage, contract, direct, procure, perform or cause to be performed all Business Associate obligations under this BAA.
To the extent applicable, amendments or modification to HIPAA or the HITECH Act may require amendments to certain provisions of this BAA. Amendments shall only be effective if executed in writing and signed by a duly authorized representative of each party.
To the extent that the terms of this BAA are not clear in satisfying the parties’ intention to comply with the applicable requirements of HIPAA, the HIPAA Regulations, and the HITECH Act, these BAA terms shall be construed so as to allow for compliance by both parties with the applicable requirements of HIPAA, the HIPAA Regulations, and the HITECH Act.
Please confirm your mobile number. We will send a confirmation code via text to your phone. Once you have received it, enter it in the registration form.
AZOVA, INC. (“we”, “us”, “our” or “Company”) operates the azova.co, www.azovahealth.com and www.vaxigo.com websites (“Sites”) and the AZOVA and Vaxigo mobile device applications and provides a platform for healthcare professionals and pharmacists to build digital health businesses, including telemedicine clinics and other digital clinics and to conduct e-commerce transactions and a platform for patients to obtain in-office, e-visit, house call, mobile or onsite clinic consultations from any healthcare professional or pharmacist, and to access laboratory, vaccination, imaging center or other medical products and services and to upload, request and share health information.
We have the highest regard for your privacy and personal information and realize that the success of our service depends on the trust that users have in the way we handle their personal information. This policy sets out our commitments and explains the rights that you have with respect to your personal information.
1. INFORMATION COLLECTION AND USE
2. Collecting and Using Your Information
Collecting and Using Your Personal Information and Health Information (Actively Provided Information)
“Personal Information” means information that can be directly associated with a specific person (and includes Health Information). When you register or update your information on our Site or through our App, we collect Personal Information including your:
If you are a healthcare provider or pharmacist, during registration you will be asked to provide information regarding your professional qualifications as well as other Personal Information.
If you are a patient, during registration or subsequently, you may choose to use certain features of the Application that will allow you to input other Personal Information with respect to your health, such as your vaccination history, your past medical history, family history, surgical history, health-related goals, the frequency you would like us to send you reminders to take your medication or other health-related reminders, the medications you take, the date of your prescription, the number of refills you have made, how often you take your medication, the medications you are allergic to, whether you take your medication, your doctors or other healthcare professionals’ names and the name of your pharmacy (“Health Information”). We will send you reminders to schedule a vaccination appointment, to schedule health-related appointments, and we will send you reminders to take your medications or to work on a health-related goal or treatment recommendation in accordance with this information.
You may send an invitation to join AZOVA’s platform to family members, friends, healthcare professionals, pharmacists. You may also send an invitation to be your “health helper” by means of the Application, so that such supporter will receive alerts regarding your compliance with your health goals, recommended treatment plans or medication regime. By sending such invitation, you represent that you have the right to contact the health helpers and that you consent to our sending your Personal Information and your Health Information and medication adherence and your compliance with your health goals, recommended treatment plans or medication regime to the supporters. Sharing of your Personal Information and health information and inviting supporters in your care in this manner is solely your responsibility.
You may also share any of your health information with any healthcare professional, pharmacist, family member, friend. You may also share your vaccination information with an employer or school.
You may use the Application to share your Personal Information or other information with your doctor, pharmacist or other healthcare providers. Such sharing may be enabled by inviting your healthcare provider to monitor your Personal Information, by accepting an invitation from your healthcare provider to download and use the Application, or otherwise using the Application settings to share your information with your healthcare provider or pharmacist; in these cases you consent to our sending Personal Information about your past medical history, family history, other health information, medications, your compliance with treatment plans, health goals and medication regime with your healthcare providers, pharmacists or other healthcare providers, employers or schools. Confirm with your healthcare provider that they have sent you an invitation to download AZOVA. Such sharing of your information is at your discretion and is solely your responsibility.
If you are a healthcare provider using the Application to invite individuals under your supervision to use the Application, you agree not to include any Personal Information about you or your professional qualifications in the text of these invitations. We may also use your Personal Information in order to provide you with personalized third party content or links to third party sites that might interest you, as part of the feed on the Application. We provide this third party content and/or links to third party sites for information purposes only and are not liable for such content or sites. For more information see the “Links to other Websites or Apps” section below.
While we take great care to keep your Personal Information confidential and secure, when you share your health or medication information with others or provide feedback regarding health matters, medications and otherwise, including by means of social media sites, or when you participate in a forum on the Application, any information disclosed that may be automatically made public, and such information will not be considered Personal Information by us. You should exercise caution when disclosing any information (including Personal Information) in such ways, as you do not know who will access or use such information and for what purposes. Your Personal Information will not be combined with other information and will not be used for other purposes, except as explained in this policy. Please note that we are not subject to medical secrecy obligations.
Ensuring the accuracy and completeness of the Personal Information and any other information that you provide in connection with your use of the Application is important. Inaccurate or incomplete information will affect the functioning of the Application, as well as the information you receive from us and our ability to contact you.
3. Automatic Data Collection
Site: We collect information about your use of the Site (IP address, type of computing or mobile device you use, language of your operating system, the Internet browser you are using, geo-location and use of the Site) through the use of various technologies, such as cookies, web beacons and navigational data collection (log files, server logs, clickstream). For more information on our cookies policy, please see below.
The App may automatically collect certain information about you when you use the App, such as the type of computing or mobile device you use, your device’s IP address and/or unique device ID, your device’s operating system, the language of your operating system and the Internet browser you are using. We may use third party service providers to collect such information, in order to assist us with the following: pseudonymised installation tracking, social media recommendations, anonymized crash tracking, anonymized behavior tracking and testing (including in real time), and anonymized A/B testing. We collect such information in order to facilitate use and ensure technical functioning of the App, dynamically generate and deliver targeted content, statistically monitor usage of the App, and improve the overall quality of our users’ experiences.
Data collected automatically on the Site or App may be used, for example, to help diagnose problems with our servers, to make AZOVA more useful, to customize AZOVA and personalize its content for you.
Also, you are free to delete any existing cookies at any time. If you delete or disable cookies from our Site, some parts or functions of the Site may not work properly for you.
5. Access to your information and choices.
You may request to delete any personal information and to de-authorize the collection of personal information in the future by sending us an email at firstname.lastname@example.org. You understand and agree that if you choose to use AZOVA, your personal information will be visible to all the healthcare providers with whom you register for an appointment or send a secure message to or with whom you interact on the AZOVA platform. You understand that your vaccination history and your medical history will be shared with all healthcare professionals or pharmacists with whom you register for an appointment. You further understand and agree that your personal information may be shared with healthcare professionals located in other states and jurisdictions for purposes of virtual consults and medical record sharing. If your health care provider discloses your PHI, he or she will obtain your consent for such disclosure, to the extent required by state law.
You can close your online patient account by sending an e-mail message to request account closure to email@example.com. You will no longer have access to any of the information on your AZOVA account. AZOVA will not be able to restore access to this account in any way. If one of your healthcare professionals or pharmacists closes his or her account, we may continue to provide you with access to information your healthcare professional stored on your behalf.
6. California Privacy Rights
Under California’s “Shine the Light” law, California residents who provide personal information in obtaining products or services for personal, family or household use are entitled to request and obtain from us once a calendar year information about the customer information we shared, if any, with other businesses with which we shared customer information for the immediately prior calendar year (e.g. requests made in 2017 will receive information regarding 2016 sharing activities).
To obtain this information, please send an email message to firstname.lastname@example.org with with “Request for California Privacy Information” on the subject line and in the body of your message. We will provide the requested information to you at your email address in response. Please be aware that not all information sharing is covered by the “Shine the Light” requirements and only information on covered sharing will be included in our response.
7. Sharing of Your Personal Information with Third Parties and Service Providers
We will not publish your Personal Information without your explicit consent. However, we might share your Personal Information, as is reasonably necessary, without your consent with: (1) our contractors or consultants who are bound by an obligation of confidentiality, provided that we will only share Personal Information to the extent necessary with such contractors or consultants; and 2) affiliates of our company for the purposes of improving our marketing strategies, for research purposes and for entering into commercial contracts in order to provide our users with AZOVA’s services.
Please note that we may share your de-identified data with such third parties without obtaining such consent.
Additionally, you may choose to share your Personal Information with healthcare providers, healthcare provider organizations, or pharmacies with which we partner and/or third party coupon companies, in order that we may send you coupons and/or provide you with reminders to come in for an appointment, to get your prescription refilled, or to comply with a treatment plan or health goal. If you choose to share your Personal Information in this manner, please note that such information may be disclosed to the healthcare providers, healthcare provider organizations, coupon companies and/or pharmacies and will be subject to their privacy practices.
We may share your Personal Information with third parties, such as research institutes, healthcare systems, doctors or pharmacies for research purposes or to invite you to participate in clinical trial programs and/or so that they can cross-check such information with other information that they have about you and for improvement of our services. We will first obtain your consent for the same. Please note that we may share your de-identified data with such third parties without obtaining such consent.
From time to time, we may also ask whether you would like us to share your Personal Information with another company that may want to send you information about their products or services. If you consent to such transfer by us of your Personal Information to another company, please note that the information provided will be subject to such company’s privacy practices and shall not be within our control.
In addition we may share your personal data with third parties, such as law enforcement authorities, courts and tribunals, to respond to law enforcement requests or other legal requests or pursuant to a requirement imposed by law, order, judgment or decree.
We may also share your Personal Information with legal advisors, consultants, or courts in order to protect and defend our rights and property or those of Application users. We may also transfer your Personal Information in the event of a merger, acquisition or sale of all or a portion of our assets.
8. Use of Aggregated Data
9. DISABLING THE SERVICE, ACCESS, CORRECTIONS AND DELETION
At any time, you can stop the collection of your information by uninstalling the App and refraining from using the Site. You may also request that your Personal Information be deleted from our active databases. We will delete any data that is retained in your patient dashboard, but we cannot delete any Personal Information or Health Information that you have shared with any healthcare professional or pharmacist and we cannot delete any data that a healthcare professional or pharmacist has created as a result of an interaction with you. We cannot restore information that we have deleted. You are responsible for backing up the data that you store on the Application. We may retain any data in non-identified form, subject to applicable law.
You may contact us as specified below under “How to Contact Us” to access information that we keep about you or update or correct such information or ask for its deletion. We will retain your information for as long as you continue to use our Site or App and for a reasonable period of time afterwards.
You have the right to object to direct marketing.
10. LINKS TO OTHER WEBSITES OR APPS
We take reasonable steps to protect Personal Information as you transmit it to us and to protect such information from loss, misuse and unauthorized access, disclosure, alteration or destruction. However, you should keep in mind that no Internet transmission is ever completely secure or error-free.
If you use and/or access the Application on or from an Android device which you or someone else rooted or on or from an iOS device which you or someone else jail broke, AZOVA shall not be responsible for the security of your data, including your Personal Information, and you shall bear all responsibility for any breach, illegal access, loss and/or corruption of such data.
12. SECURITY OF INFORMATION COLLECTED
We use account information in a password-protected environment as a security measure to protect your data. We use administrative, physical, and technical safeguards to protect data. We maintain a high level of data protection via safeguards such as data backup, audit controls, access controls, and some data encryption. Our Site and the Services use industry standard SSL encryption to enhance security of electronic data transmissions. In addition, we urge you to take precautionary measures in maintaining the integrity of your data. Please be responsible in making sure no one can see or has access to your personal account and login/password information. If you use a public computer, e.g., at a library or a university, always remember to logout of the Site or Services. If you use our Site or Services through your employer’s computer network or through an internet café, library or other potentially non-secure internet connection, such use is at your own risk. It is your responsibility to check beforehand on your employer’s or such other site’s privacy and security policy with respect to Internet use. We are not responsible for your handling, sharing, re-sharing and/or distribution of your personal or personal health information. Moreover, if you forward or transmit in any format, e.g. electronic or via other media including paper, or fax, personal health information electronically to another person on or off the Site or Service, we are not responsible for any harm or other consequences from third party use or re-sharing of your information.
13. TRANSFER IN THE EVENT OF SALE OR CHANGE OF CONTROL
14. CHILDREN UNDER 18
15. HOW WE USE AND SHARE YOUR INFORMATION
Sharing with Third Parties. We may provide information to third party service providers (e.g., laboratories, prescription drug providers, and other clinically relevant companies) that help us process orders, and fulfill and deliver products and services that you purchase from or through us. We may use third parties to help host our Site, send out email updates about the Site, provide marketing and advertising services for us, remove repetitive information from our user lists, and process payments. These service providers will have access to your personal information in order to provide these services, but when this occurs we implement reasonable contractual and technical protections to limit their use of that information to helping us provide the service.
17. LEGAL PROCEEDINGS
18. CONSENT TO DATA PROCESSING IN THE UNITED STATES
Our Site is operated and managed on servers located and operated within the United States. By using and accessing our Site, residents and citizens of countries and jurisdictions outside of the United States agree and consent to the transfer to and processing of personal information on servers located in the United States, and that the protection of such information may be different than required under the laws of your residence or location.
19. REPORT VIOLATIONS
You should promptly report any security violations to us by sending an email to email@example.com.
21. QUESTIONS OR SUGGESTIONS
22. HOW TO CONTACT US
ATTN: AZOVA Inc.
144 S. Main Street, Alpine, UT 84004