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Privacy Policy

Version 1.0.2

Effective Date: August 3, 2015

Updated: October 14, 2015; December 30, 2017; August 5, 2019; August 26, 2020

Care3 Privacy Policy

Welcome to Care3, Inc. (“ Care3”, “ we”, “ us”, or “ our”) has prepared this Privacy Policy to describe to you our practices regarding the Personal Information (as defined below) we collect from users of our website, located at (the “ Website”) and online services (“ Services”), including our mobile application (“ App”). Care3 digitizes, sequences and distributes messages over a multi-channel platform to help patients, family and care teams coordinate care. Care3 users may be patients and members of the Patient’s Care Team.

A Note to Users Outside of the United States. If you are a non U.S. user of the Website or Services, by visiting the Website and/or providing us with information, you acknowledge and agree that your Personal Information may be processed for the purposes identified in the Privacy Policy. In addition, your Personal Information may be processed in the country in which it was collected and in other countries, including the United States, where laws regarding processing of Personal Information may be less stringent than the laws in your country. By providing your information, you consent to such transfer.

So we are clear about the terminology we are using, when we use the phrase “ Personal Information” in this Privacy Policy, we mean information that allows someone to identify or contact you, including, for example, your name, address, telephone number, e-mail address, as well as any other non-public information about you that is associated with or linked to any of the foregoing information. When we use the phrase “ Anonymous Information” in this Privacy Policy, we mean information that is not associated with or linked to your Personal Information. Anonymous Information does not enable identification of or contact with individual persons.

Children

Our Services and Website are not directed to children and children are not eligible to use our Services. Protecting the privacy of children is very important to us. We do not collect or maintain Personal Information from people we actually know are under 13 years of age, and no part of our Website or Services is designed to attract people under 13 years of age. If we later learn that a user is under 13 years of age, we will take steps to remove that user's Personal Information from our databases and to prevent the user from utilizing the Website and the Services.

How We Collect Information

Personal Information

In general, the Personal Information we gather enables us to provide the Services to you and helps us learn more about the use of the Website and/or Services. We collect Personal Information that you submit to us voluntarily at registration and in the course of your use of the Website and/or Services. To use our Services, we require you to create an “ Account” by providing your email address and a password. Any information you choose to provide for our use should reflect how much you want other Users to know about you. You can choose not to provide us with certain information, but this may limit the features of the Website or Services you are able to use.

Our Services are designed to enable you to better communicate with others. As you use our Services and communicate with other users, you are welcome to share as much Personal Information that you think is necessary and appropriate. If you include Personal Information in such messages or communications, the recipients of those communications may receive that Personal Information and use it at their discretion. Please be thoughtful about the information that you include in the Services. Any information about a patient will be considered Personal Information of the patient, even if submitted by a member of the patient’s care team (with the understanding that such member may have additional rights independent of the Services). If you submit information about another individual, we rely upon you to obtain whatever consents from the third party that may be required by law to allow us to access and upload the third party’s names and contact information as required above. You or the third party may contact us through https://www.care3.co/blog/contact to request the removal of this information from our database.

When you communicate with us by sending us an email, we will collect and store any information that is contained in your communications with us. If you tell us where you are (e.g., by allowing your mobile device to send us your location), we may collect, store and use that information. If you want to deactivate this feature, you can disable location services on your mobile device. Please contact your carrier for more information.

Anonymous Information

We collect the following types of Anonymous Information:

How We Use Information

Personal Information

We will use your Personal Information to:

We may also use your Personal Information to create Anonymous Information records by excluding information that makes the information personally identifiable to you.

Anonymous Information

We use the Anonymous Information we collect to analyze trends, administer and improve the Services, track users’ movements in the App, gather demographic information about our user base as a whole, and better tailor our Services to our users’ needs. For example, some of the Log Files may be collected so that when you use the App again, it will recognize you and the information could then be used to serve advertisements and other information appropriate to your interests.

How We Disclose Information

Personal Information

We may disclose certain Personal Information:

Anonymous Information

We reserve the right to disclose Anonymous Information publicly without restriction.

YOUR CHOICES REGARDING YOUR INFORMATION

Feedback

If you provide feedback to us, we may use and disclose such feedback in accordance with the terms in our Terms of Use, provided we do not associate such feedback with your Personal Information. We will collect any information contained in such feedback and will treat the Personal Information in it in accordance with this Privacy Policy, provided that we may contact you in regards to such feedback.

Controlling Your Information

You can review and/or change certain of your Personal Information by logging into the Website and accessing your Account. You authorize us to use and disclose any new or modified information that you provide in accordance with this Privacy Policy, and you agree that we are under no obligation to delete or modify information that you have previously chosen to provide us. Upon your request, we will close your Account and purge all relationships, as soon as practicable, in accordance with applicable law. We may also retain your Personal Information to comply with laws, prevent fraud, resolve disputes, troubleshoot problems, assist with any investigations, enforce our Terms of Use, and take other actions otherwise permitted by law.

Information Disclosed to Third Parties

This Privacy Policy addresses only our use and disclosure of information we collect from and/or about you on the Website and Services. If you disclose information to others, or authorize us to do the same under this Privacy Policy, the use and disclosure restrictions contained in this Privacy Policy will not apply to any third party. We do not control the privacy policies of third parties, and you are subject to the privacy policies of those third parties where applicable.

The Website and App may contain content or links to other websites that are not owned or controlled by us. We have no control over, do not review and are not responsible for the privacy policies of or content displayed on such other websites. When you click on such a link, you will leave our Website and go to another site. During this process, another entity may collect Personal Information or Anonymous Information from you. The Website may also contain links to other websites controlled by us but which operates under different privacy policies. Please review the privacy policy of any new site you visit.

Changes to this Privacy Policy

This Privacy Policy may be updated from time to time for any reason. We will notify you of any changes to our Privacy Policy by posting the new Privacy Policy here and we will change the “Updated” date above. You should consult this Privacy Policy regularly for any changes.

Terms of Use

Version 1.0.1

Effective Date: August 19, 2015

Updated: July 19, 2017; August 5, 2019; August 26, 2020

Terms of Use

WELCOME TO CARE3, INC. PLEASE READ THIS TERMS OF USE AGREEMENT (THE “TERMS OF USE”) CAREFULLY. Care3 digitizes, sequences and distributes messages over a multi-channel platform to help patients, family and care teams coordinate care.  Care3 users may be patients and members of the Patient’s Care Team.

IF YOU ARE EXPERIENCING AN EMERGENCY, CALL YOUR LOCAL EMERGENCY MEDICAL PERSONNEL OR 911. ANY COMMUNICATIONS THROUGH THE SERVICES, WHETHER FROM US OR OTHER REGISTERED USERS, SHOULD NOT BE CONSIDERED MEDICAL ADVICE NOR SHOULD THEY IMPLY ANY ACTION SHOULD BE TAKEN. ALL TREATMENT SHOULD BE DISCUSSED WITH YOUR HEALTH PROFESSIONAL. RELIANCE ON ANY INFORMATION PROVIDED THROUGH THE SERVICES IS SOLELY AT YOUR OWN RISK.

BY ACCESSING OR USING THIS WEBSITE OR ANY OTHER WEBSITES OF CARE3, INC. (“CARE3”, “MITOACTION MOBILE” OR “WE”) WITH LINKS TO THIS TERMS OF USE (COLLECTIVELY, THE “WEBSITE”) IN ANY WAY, INCLUDING USING THE SERVICES AND RESOURCES AVAILABLE OR ENABLED VIA THE WEBSITE (EACH A “SERVICE” AND COLLECTIVELY, THE “SERVICES”) BY CARE3 OR USERS OF THE SITE (“USERS”), CLICKING ON THE “I ACCEPT” BUTTON, COMPLETING THE REGISTRATION PROCESS, AND/OR MERELY BROWSING THE WEBSITE, OR BY DOWNLOADING ANY OF OUR MOBILE APPLICATIONS (“APPLICATION”), YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THE TERMS OF USE, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH CARE3, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THE TERMS OF USE PERSONALLY OR ON BEHALF OF THE ENTITY YOU HAVE NAMED AS THE USER, AND TO BIND THAT ENTITY TO THE TERMS OF USE.  THE TERM “YOU” REFERS TO THE INDIVIDUAL OR LEGAL ENTITY, AS APPLICABLE, IDENTIFIED AS THE USER WHEN YOU REGISTERED WITH US.  IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS OF USE, YOU MAY NOT ACCESS OR USE THIS WEBSITE OR THE SERVICES.

THE TERMS OF USE INCLUDE A CLASS ACTION WAIVER AND REQUIRE BINDING ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS.

Your use of, and participation in, certain Services may be subject to additional terms (“Supplemental Terms”) and such Supplemental Terms will either be listed in the Terms of Use or will be presented to you for your acceptance when you sign up to use the supplemental Service.  If the Terms of Use are inconsistent with the Supplemental Terms, the Supplemental Terms shall control with respect to such Service. The Terms of Use and any applicable Supplemental Terms are referred to herein as the “Terms.”

Care3 knows that your privacy is important. For this reason, we have created a privacy policy that describes our collection, use and disclosure practices regarding any personal information that you provide to us.

PLEASE NOTE THAT The Terms are subject to change by Care3 in its sole discretion at any time.  When changes are made, Care3 will make a new copy of the Terms of Use available at the Website and within the Application and any new Supplemental Terms will be made available from within, or through, the affected Service on the Website or within the Application.  We will also update the “Last Updated” date at the top of the Terms of Use.  If we make any material changes, and you have registered with us to create an Account (as defined in Section 4.1 below), we will also send an e-mail to you at the last e-mail address you provided to us pursuant to the Terms.  Any changes to the Terms will be effective immediately for new Users of the Website, the Application and/ or Services and will be effective thirty (30) days after posting notice of such changes on the Website for existing Users, provided that any material changes shall be effective for Users who have an Account with us upon the earlier of thirty (30) days after posting notice of such changes on the Website or thirty (30) days after dispatch of an e-mail notice of such changes to Registered Users (defined in Section 4.1 below).  Care3 may require you to provide consent to the updated Terms in a specified manner before further use of the Website, the Application and/ or the Services is permitted.  If you do not agree to any change(s) after receiving a notice of such change(s), you shall stop using the Website, the Application and/or the Services.  Otherwise, your continued use of the Website, the Application and/or Services constitutes your acceptance of such change(s). PLEASE REGULARLY CHECK THE WEBSITE TO VIEW THE THEN-CURRENT TERMS.

  1. Medical Disclaimers. Any messages and information shared between Users on the Services, whether the patient, or care team, are for informational purposes only and are not a substitute for professional medical advice or treatment. Always seek the advice of your physician or other qualified health provider with any questions you may have regarding your health.

  2. Types of Content. You acknowledge that all lists and other information, data, text, software, music, sound, photographs, graphics, video, messages, tags and/or other materials (“Content”) accessible through the Care3 Properties is the sole responsibility of the party from whom such Content originated. When we use the phrase “Care3 Properties,” we mean the Application, the Website, the Services, and the information and content available on any of the foregoing. This means that you, and not Care3, are entirely responsible for all Content that you upload, post, e-mail, transmit or otherwise make available (“Make Available”) through the Care3 Properties (“Your Content”), and other Users of the Care3 Properties, and not Care3, are similarly responsible for all Content they Make Available through the Care3 Properties (“User Content”). Your Content includes Content from a third party that you Make Available on the Care3 Properties. Basically, make sure you have the right to add Content before you put that Content on our Service.

  3. License to Your Content. Care3 does not claim ownership of Your Content. However, when you as a User post or transmit Your Content through the Services, you represent that you own and/or have a royalty-free, perpetual, irrevocable, worldwide, non-exclusive right (including any moral rights) and license to use, license, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, derive revenue or other remuneration from, and communicate to the public, perform and display Your Content (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or later developed, for the full term of any worldwide intellectual property right that may exist in Your Content. However, we will use Your Content in accordance with the settings in which you submitted such Content, as detailed under our Privacy Policy.

  4. No Obligation to Pre-Screen Content. You acknowledge that Care3 has no obligation to pre-screen Content (including, but not limited to, Your Content and User Content), although Care3 reserves the right in its sole discretion to pre-screen, refuse or remove any Content. By entering into the Terms, you hereby provide your irrevocable consent to such monitoring. You acknowledge and agree that you have no expectation of privacy concerning the transmission of Your Content, including without limitation chat, text, or voice communications. In the event that Care3 pre-screens, refuses or removes any Content, you acknowledge that Care3 will do so for Care3’s benefit, not yours. Without limiting the foregoing, Care3 shall have the right to remove any Content that violates the Terms or is otherwise objectionable.

  5. Storage. Unless expressly agreed by Care3 in writing elsewhere, Care3 has no obligation to store any of Your Content that you Make Available on the Care3 Properties. Care3 has no responsibility or liability for the deletion or accuracy of any Content, including Your Content; the failure to store, transmit or receive transmission of Content; or the security, privacy, storage, or transmission of other communications originating with or involving use of the Care3 Properties. You agree that Care3 retains the right to create reasonable limits on Care3’s use and storage of the Content, including Your Content, such as limits on file size, storage space, processing capacity, and similar limits described in the web pages accompanying the Services and as otherwise determined by Care3 in its sole discretion.

  6. Your Content. In connection with your use of the Care3 Properties, you shall not Make Available any Content that: (a) you do not have a right to Make Available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under non-disclosure agreements); (b) infringes the rights of any person or entity, including without limitation, any patent, trademark, trade secret, copyright, privacy, publicity or other proprietary or contractual rights; (c) is unlawful, tortious, defamatory, vulgar, obscene, libelous, or racially, ethnically or otherwise objectionable; (d) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (e) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (f) is violent or threatening, or promotes violence or actions that are threatening to any other person; or (g) promotes illegal or harmful activities.

  7. Application.

  1. Use of the Services and Care3 Properties.

  1. Registering Your Account. In order to access certain features of the Care3 Properties you may be required to become a Registered User. For purposes of the Terms, a “Registered User” is a User who has registered an account with Care3 (“Account”).

  2. Registration Data. In registering for the Services, you agree to (1) provide true, accurate, current and complete information about yourself as prompted by the Services’ registration form (the “Registration Data”); and (2) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You represent that you are (1) at least thirteen (13) years old; (2) of legal age to form a binding contract; and (3) not a person barred from using the Care3 Properties under the laws of the United States, your place of residence or any other applicable jurisdiction. You are responsible for all activities that occur under your Account. You agree that you shall monitor your Account to restrict use by minors, and you will accept full responsibility for any unauthorized use of the Care3 Properties by minors. You may not share your Account or password with anyone, and you agree to (1) notify Care3 immediately of any unauthorized use of your password or any other breach of security; and (2) exit from your Account at the end of each session. If you provide any information that is untrue, inaccurate, not current or incomplete, or Care3 has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Care3 has the right to suspend or terminate your Account and refuse any and all current or future use of the Care3 Properties (or any portion thereof). You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. Care3 reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third party that a username violates the third party’s rights. You agree not to create an Account or use the Care3 Properties if you have been previously removed by Care3, or if you have been previously banned from any of the Care3 Properties.

  3. Necessary Equipment and Software. You must provide all equipment and software necessary to connect to the Care3 Properties, including but not limited to, a mobile device that is suitable to connect with and use the Care3 Properties, in cases where the Services offer a mobile component. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing the Care3 Properties.

  4. Care3 Properties. Except with respect to Your Content and User Content, you agree that Care3 and its suppliers own all rights, title and interest in the Care3 Properties. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Website, the Services, or the Care3 Properties.

  5. Trademarks. Care3 and other related graphics, logos, service marks and trade names used on or in connection with the Care3 Properties or in connection with the Services are the trademarks of Care3 and may not be used without permission in connection with any third-party products or services. Other trademarks, service marks and trade names that may appear on or in the Care3 Properties are the property of their respective owners.

  6. Other Content. Except with respect to Your Content, you agree that you have no right or title in or to any Content that appears on or in the Care3 Properties.

  7. Your Content. Care3 does not claim ownership of Your Content. However, when you as a User post or publish Your Content on or in the Care3 Properties, you represent that you own and/or have a royalty-free, perpetual, irrevocable, worldwide, non-exclusive right (including any moral rights) and license to use, license, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, derive revenue or other remuneration from, and communicate to the public, perform and display Your Content (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or later developed, for the full term of any worldwide intellectual property right that may exist in Your Content.

  8. Username. Notwithstanding anything contained herein to the contrary, by submitting Your Content to any forums, comments or any other area on the Care3 Properties, you hereby expressly permit Care3 to identify you by your username (which may be a pseudonym) as the contributor of Your Content in any publication in any form, media or technology now known or later developed in connection with Your Content.

  9. Your Account. Notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in your Account, and you further acknowledge and agree that all rights in and to your Account are and shall forever be owned by and inure to the benefit of Care3.

  10. Your Profile. Any Content posted by you in your profile may not contain nudity, violence, sexually explicit, or offensive subject matter. You may not post or submit for print services a photograph of another person without that person’s permission.

  11. Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to Care3 through its suggestion, feedback, wiki, forum or similar pages (“Feedback”) is at your own risk and that Care3 has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Care3 a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of the Care3 Properties.

  12. User Conduct.

  1. Care3 may, but is not obligated to, monitor or review the Care3 Properties and Content at any time. Without limiting the foregoing, Care3 shall have the right, in its sole discretion, to remove any of Your Content for any reason (or no reason), including if such Content violates the Terms or any applicable law. Although Care3 does not generally monitor user activity occurring in connection with the Care3 Properties or Content, if Care3 becomes aware of any possible violations by you of any provision of the Terms, Care3 reserves the right to investigate such violations, and Care3 may, at its sole discretion, immediately terminate your license to use the Care3 Properties, or change, alter or remove Your Content, in whole or in part, without prior notice to you. As a result of any investigation, we may label Your Content in the future as having possibly sensitive content and including a warning message with such Content.

  2. Interactions with Other Users.

  1. Third-Party Services. The Care3 Properties may contain links to third-party websites (“Third-Party Websites”) and advertisements for third parties (collectively, “Third-Party Websites & Ads”). When you click on a link to a Third-Party Website or Ad, we will not warn you that you have left the Care3 Properties and are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Websites are not under the control of Care3. Care3 is not responsible for any Third-Party Websites & Ads. Care3 provides these Third-Party Websites & Ads only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Websites & Ads, or their products or services. You use all links in Third-Party Websites & Ads at your own risk. When you leave our Website, our Terms and policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Websites, and should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.

  2. We do not currently charge fees for the use of any component of the Care3 Properties or any features thereof, but we reserve the right to do so in the future.

  3. You agree to indemnify and hold Care3, its parents, subsidiaries, affiliates, officers, employees, agents, partners and licensors (collectively, the “Care3 Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of: (a) Your Content; (b) your use of, or inability to use, the Care3 Properties or any other User’s Content; (c) your violation of the Terms; (d) your violation of any rights of another party, including any Users; or (e) your violation of any applicable laws, rules or regulations. Care3 reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Care3 in asserting any available defenses. You agree that the provisions in this section will survive any termination of your Account, the Terms or your access to the Care3 Properties.

  4. Disclaimer of Warranties.

  1. Limitation of Liability.

  1. Procedure for Making Claims of Copyright Infringement. It is Care3’s policy to terminate membership privileges of any User who repeatedly infringes copyright upon prompt notification to Care3 by the copyright owner or the copyright owner’s legal agent. Without limiting the foregoing, if you believe that your work has been copied and posted on the Care3 Properties in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information: (1) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (2) a description of the copyrighted work that you claim has been infringed; (3) a description of the location on the Care3 Properties of the material that you claim is infringing; (4) your address, telephone number and e-mail address; (5) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and (6) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. Contact information for Care3’s Copyright Agent for notice of claims of copyright infringement is as follows: Care3 LLC, 6272 Condon Ave, Los Angeles, CA 90056, Attn: Copyright Agent.

  2. Term and Termination.

  1. Violations. If Care3 becomes aware of any possible violations by you of the Terms, Care3 reserves the right to investigate such violations. If, as a result of the investigation, Care3 believes that criminal activity has occurred, Care3 reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. Care3 is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in the Care3 Properties, including Your Content, in Care3’s possession in connection with your use of the Care3 Properties, to (1) comply with applicable laws, legal process or governmental request; (2) enforce the Terms, (3) respond to any claims that Your Content violates the rights of third parties, (4) respond to your requests for customer service, or (5) protect the rights, property or personal safety of Care3, its Users or the public, and all enforcement or other government officials, as Care3 in its sole discretion believes to be necessary or appropriate.

  2. Breach. In the event that Care3 determines, in its sole discretion, that you have breached any portion of the Terms, or have otherwise demonstrated conduct inappropriate for the Care3 Properties, Care3 reserves the right to:

  1. General Provisions.
  1. International Provisions. The Care3 Properties can be accessed from countries around the world and may contain references to Services and Content that are not available in your country. These references do not imply that Care3 intends to announce such Services or Content in your country. The Care3 Properties are controlled and offered by Care3 from its facilities in the United States of America. Care3 makes no representations that the Care3 Properties are appropriate or available for use in other locations. Those who access or use the Care3 Properties from other jurisdictions do so at their own volition and are responsible for compliance with local law.

Business Associate Agreement

Version 1.0.1

  1. Effective Date: December 21, 2016

  2. Updated: December 30, 2017; August 5, 2019

Care3, Inc. Business Associate Agreement

This Business Associate Agreement (the “Agreement”) is made as of date agreed to below (the “Effective Date”), by and between Care3, Inc. (“Business Associate”) and the Company (“Covered Entity”) (each a “Party” and collectively the “Parties”) to comply with the federal Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), as amended by the Health Information Technology for Economic and Clinical Health Act of 2009 (“HITECH”), and their implementing regulations, including the Privacy Standards adopted by the U.S. Department of Health and Human Services as they may be amended from time to time, 45 C.F.R. parts 160 and 164, subparts A and E (the “Privacy Rule”), the Security Standards adopted by the U.S. Department of Health and Human Services as they may be amended from time to time, 45 C.F.R. parts 160, 162 and 164, subpart C (the “Security Rule”), the Breach Notification Standards adopted by the U.S. Department of Health and Human Services, as they may be amended from time to time, at 45 C.F.R. part 164, subpart D (the “Breach Notification Rule”), as well as related state laws and/or regulations (collectively, the “HIPAA Rules”).

RECITALS

WHEREAS, Business Associate provides certain services to Covered Entity and Covered Entity has agreed to Business Associate’s Terms of Use for the provision of such services (“Services”); WHEREAS, in connection with these Services, Covered Entity may disclose to Business Associate certain Protected Health Information (“PHI”) (as defined below) that is subject to protection under the HIPAA Rules; WHEREAS, if Business Associate performs or assists in performing certain functions or activities for or on behalf of Covered Entity that involve the use or disclosure of PHI, the HIPAA Rules require that Covered Entity receive adequate assurances that Business Associate will comply with certain obligations with respect to the PHI received in the course of providing services to or on behalf of Covered Entity; and WHEREAS, the Parties agree that the terms of this Agreement will have no effect unless and until Business Associate performs or assists in performing certain functions or activities for or on behalf of Covered Entity that involve the use or disclosure of PHI. NOW THEREFORE, in consideration of the mutual promises and covenants herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:

A. Definitions

  1. Unless otherwise provided, all capitalized terms in the Agreement will have the same meaning as provided under the HIPAA Rules.

  2. Protected Health Information or PHI: Protected Health Information or PHI, as defined by the Privacy Rule, for this Agreement means PHI that is created, received, maintained, or transmitted on behalf of Covered Entity by Business Associate pursuant to the Agreement.

B. Purposes for which PHI May Be Disclosed to Business Associate.

In connection with the Services provided by Business Associate to or on behalf of Covered Entity, Covered Entity may disclose PHI to Business Associate during the performance of service and support activities in compliance with HIPAA.

C. Obligations of Business Associate.

  1. Compliance with Laws. Business Associate agrees to comply with the provisions of the HIPAA Rules that are applicable to Business Associate.

  2. Use and Disclosure of PHI. Business Associate may use or disclose PHI as Required by Law. Business Associate shall not use or further disclose PHI other than as permitted or required by this Agreement or as Required by Law. Business Associate shall not use or disclose PHI in a manner that would violate the HIPAA Rules if used or disclosed by Covered Entity, provided, however, that Business Associate may use and disclose PHI as necessary for the proper management and administration of Business Associate, for the specific uses and disclosures set forth herein, and to carry out its legal responsibilities. Business Associate agrees, to the extent that Business Associate is to carry out one or more of Covered Entity’s obligation(s) under Subpart E of 45 C.F.R. Part 164, to comply with the requirements of Subpart E of 45 C.F.R. Part 164 that apply to Covered Entity in the performance of such obligation(s).

  3. Safeguards. Business Associate shall maintain appropriate safeguards to ensure that PHI is not used or disclosed in violation of this Agreement or applicable law. Business Associate shall implement administrative, physical and technical safeguards that reasonably and appropriately protect the confidentiality, integrity, and availability of any electronic PHI it creates, receives, maintains, or transmits on behalf of Covered Entity and shall comply, where applicable, with Subpart C of 45 C.F.R. Part 164 with respect to such electronic PHI to prevent use or disclosure of such electronic PHI other than as provided for by this Agreement.

  4. Disclosure to Agents and Subcontractors. If Business Associate discloses PHI received from Covered Entity, or created, received, maintained, or transmitted by Business Associate on behalf of Covered Entity, to agents, including a subcontractor, Business Associate shall, in accordance with 45 CFR 164.502(e)(1)(ii) and 164.308(b)(2), if applicable, ensure that any agents or subcontractors that create, receive, maintain, or transmit PHI on behalf of Business Associate agree to the same restrictions, conditions, and requirements that apply to Business Associate under this Agreement with respect to such information. Business Associate shall ensure that any such agent, including a subcontractor, agrees to implement reasonable and appropriate safeguards to protect the confidentiality, integrity, and availability of the electronic PHI that it creates, receives, maintains, or transmits on behalf of Business Associate or Covered Entity.

  5. Minimum Necessary. Business Associate agrees to make reasonable efforts to limit use and disclosure of PHI to the minimum necessary to accomplish the intended purposes, consistent with Business Associate’s policies and procedures.

  6. Individual Rights. Business Associate agrees as follows:

  1. Internal Practices, Policies and Procedures. Except as otherwise specified herein, Business Associate shall make available its internal practices, books, and records relating to the use and disclosure of PHI received from, or created or received on behalf of, Covered Entity to the Secretary or his or her agents or authorized designees for the purpose of determining Covered Entity’s compliance with the HIPAA Rules.

  2. Withdrawal of Authorization. If the use or disclosure of PHI in this Agreement is based upon an Individual’s specific authorization for the use or disclosure of his or her PHI, and the Individual revokes such authorization, the effective date of such authorization has expired, or such authorization is found to be defective in any manner that renders it invalid, Business Associate shall, if it has received notice from Covered Entity pursuant to Section E.1. herein of such revocation, expiration, or invalidity, cease the use and disclosure of the Individual’s PHI except to the extent it has relied on such use or disclosure, or if an exception under the HIPAA Rules expressly applies.

  3. Security Incident. Business Associate agrees to report to Covered Entity any Security Incident of which Business Associate becomes aware except that no report shall be required for unsuccessful attempts at unauthorized Access, Use, Disclosure, modification, or destruction of PHI or unsuccessful attempts at interference with systems operations in an information system, such as “pings” on a firewall.

  4. Use of Disclosure of PHI Not Provided for by this Agreement. Business Associate agrees to report to Covered Entity any use or disclosure of PHI not provided for by this Agreement of which Business Associate becomes aware.

  5. Breaches of Unsecured PHI. Business Associate will report in writing to Covered Entity any Breach of Unsecured Protected Health Information, as required at 45 C.F.R. § 164.410 of which it becomes aware, within ten (10) business days of the date Business Associate learns of the incident giving rise to the Breach.

D. Rights of Business Associate.

  1. Management and Administration. Except as otherwise limited in this Agreement, Business Associate may use and disclose PHI for the proper management and administration of Business Associate or to carry out the legal responsibilities of Business Associate.

  2. Data Aggregation. Business Associate is permitted, for Data Aggregation purposes to the extent permitted under the HIPAA Rules, to use, disclose, and combine PHI created or received on behalf of Covered Entity by Business Associate pursuant to this Agreement with Protected Health Information, as defined by 45 C.F.R. 160.103, received by Business Associate in its capacity as a business associate of other covered entities, to permit data analyses that relate to the Health Care Operations of the respective covered entities, where “business associate” and “covered entities” have the meanings given to them in 45 C.F.R. 160.103.

  3. De-identified Information. Business Associate may de-identify any and all PHI created or received by Business Associate under this Agreement at any location and use all such de-identified data in accordance with the de-identification requirements of the HIPAA Rules.

  4. Reporting Violations of Law. Business Associate may use PHI to report violations of law to appropriate Federal and State authorities, consistent with 45 C.F.R. 164.502(j)(1).

  5. Limited Data Set. Business Associate may create a Limited Data Set and use such Limited Data Set pursuant to a Data Use Agreement that meets the requirements of the Privacy Rule.

E. Obligations of Covered Entity.

  1. Changes in Authorization. Covered Entity shall inform Business Associate, in writing and in a timely manner, of any changes in, or withdrawal of, any authorization provided to Covered Entity by any Individual pursuant to 45 CFR § 164.508, to the extent that such changes or withdrawal may affect Business Associate’s use or disclosure of PHI. In addition, Covered Entity shall notify Business Associate, in writing and in a timely manner, of any restriction to the use or disclosure of PHI 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 PHI. Covered Entity shall provide Business Associate with its notice of privacy practices for PHI as identified in 45 CFR § 164.520, and Covered Entity shall notify Business Associate, in writing and in a timely manner, of any limitation(s) in its notice of privacy practices, to the extent that such limitation may affect Business Associate’s use or disclosure of PHI. Covered Entity shall promptly notify Business Associate of any breach by Covered Entity of any obligation under the HIPAA Rules as such breach relates to PHI as defined herein. Covered Entity shall not request Business Associate to use or disclose PHI in any manner that would not be permissible under the HIPAA Rules if done by Covered Entity, and Business Associate is not required to use or disclose PHI in any manner that would not be permissible under the HIPAA Rules if done by Covered Entity.

  2. Minimum Necessary. Covered Entity shall disclose to Business Associate only the “Minimum Necessary” amount of PHI for Business Associate to perform the Services and its rights and obligations under this Agreement, and only in compliance with the HIPAA Rules.

F. Term and Termination.

  1. Term. The term of this Agreement shall be effective as of the date last executed below and shall continue until all 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 this Agreement is terminated pursuant to this Article F.

  2. Termination for Breach. Either party may terminate this Agreement upon written notice to the other party if the non-breaching party determines that the other party or its subcontractors or agents has breached a material term of this Agreement, provided that the non-breaching party will first provide the other party with written notice of the breach of this Agreement and afford the other party the opportunity to cure the breach within forty-five (45) days of the date of such notice. If the other party or any of its subcontractors or agents fails to timely cure the breach, the non-breaching party may terminate this Agreement.

  3. Effect of Termination. Upon termination of this Agreement for any reason, Business Associate agrees to return or destroy all PHI received from Covered Entity, or created or received by Business Associate on behalf of Covered Entity, maintained by Business Associate in any form and to retain no copies. If Business Associate determines that the return or destruction of PHI is not feasible, Business Associate shall inform Covered Entity in writing of the reason thereof, and the Parties shall agree to extend the protections of this Agreement to such PHI and Business Associate shall limit further uses and disclosures of the PHI to those purposes that make the return or destruction of the PHI not feasible for so long as Business Associate retains the PHI.

G. Miscellaneous.

  1. Survival. The respective rights and obligations of the Parties under Article G. of this Agreement shall survive the termination of this Agreement.

  2. Notices. Any notices pertaining to this Agreement shall be given in writing and shall be deemed duly given when personally delivered to a Party or a Party's authorized representative as listed below or sent by means of a reputable overnight carrier, or sent by means of certified mail, return receipt requested, postage prepaid. A notice sent by certified mail shall be deemed given on the date of receipt or refusal of receipt.

  3. Amendments. This Agreement may not be changed or modified in any manner except by an instrument in writing signed by a duly authorized officer of each of the Parties hereto. The Parties, however, agree to amend this Agreement from time to time as necessary, in order to allow the Parties to comply with the requirements of the HIPAA Rules.

  4. Choice of Law. This Agreement and the rights and the obligations of the Parties hereunder shall be governed by and construed under the laws of the State of California without regard to applicable conflict of laws principles.

  5. Assignment of Rights and Delegation of Duties. This Agreement is binding upon and inures to the benefit of the Parties and their respective successors and permitted assigns.

  6. Nature of Agreement. Nothing in this Agreement shall be construed to create (i) a partnership, joint venture or other joint business relationship between the Parties or any of their affiliates, (ii) any fiduciary duty owed by one Party to another Party or any of its affiliates, or (iii) a relationship of employer and employee between the Parties.

  7. No Waiver. Failure or delay on the part of either Party to exercise any right, power, privilege or remedy hereunder shall not constitute a waiver thereof. No provision of this Agreement may be waived by either Party except by a writing signed by an authorized representative of the Party making the waiver.

  8. Severability. The provisions of this Agreement shall be severable, and if any provision of this Agreement shall be held or declared to be illegal, invalid or unenforceable, the remainder of this Agreement shall continue in full force and effect as though such illegal, invalid or unenforceable provision had not been contained herein.

  9. No Third Party Beneficiaries. Nothing in this Agreement shall be considered or construed as conferring any right or benefit on a person not party to this Agreement nor imposing any obligations on either Party hereto to persons not a party to this Agreement.

  10. Headings. The descriptive headings of the articles, sections, subsections, exhibits and schedules of this Agreement are inserted for convenience only, do not constitute a part of this Agreement and shall not affect in any way the meaning or interpretation of this Agreement.

  11. Entire Agreement. This Agreement, together with all exhibits, riders and amendments, if applicable, which are fully completed and signed by authorized persons on behalf of both Parties from time to time while this Agreement is in effect, constitutes the entire Agreement between the Parties hereto with respect to the subject matter hereof and supersedes all previous written or oral understandings, addendums, negotiations, commitments, and any other writing and communication by or between the Parties with respect to the subject matter hereof. In the event of any inconsistencies between any provisions of this Agreement and any provisions of any exhibits, riders, or amendments, the provisions of this Addendum shall control.

  12. Interpretation. Any ambiguity in this Agreement shall be resolved in favor of a meaning that permits the Parties to comply with the HIPAA Rules. The provisions of this Agreement shall prevail over the provisions of any other prior agreement that exists between the Parties that may conflict with, or appear inconsistent with, any provision of this Agreement or the HIPAA Rules, unless otherwise explicitly set forth in such agreement.

  13. Regulatory References. A citation in this Agreement to the Code of Federal Regulations shall mean the cited section as that section may be amended from time to time.

IN WITNESS WHEREOF, the parties below have executed and delivered this Agreement as of the Effective Date. By signing up for service with Care3, Inc. as a HIPAA covered entity, you agree to the terms of this Business Associate Agreement.