PRACTITIONER AGREEMENT
This Practitioner Agreement (this “Agreement”) is made as of the
Effective Date identified below (the “Effective
Date”) and is entered
into between Ashley Koff Better Nutrition Program LLC d/b/a The Better
Nutrition Program (“BNP”
or the
“Company”) and the
individual identified below, and if applicable, the practice entity identified
below (together, “Practitioner”), together with
its affiliates, successors, assigns, as well as each of their respective
agents, servants, representatives, shareholders, members, directors, officers,
and employees, (individually, a “Party”
and
collectively, the “Parties”) and supersedes
and amends any prior agreement, and any amendments thereto between the Parties
related to the Total Neuropathy Solution Better Nutrition Program (“TNS Program”).
RECITALS
WHEREAS, Company and Practitioner have entered into, or
are entering into, or may subsequently enter into, agreements or other
documented arrangements, including the TNS Program Sales Terms (collectively,
the “Business
Arrangements”), pursuant to
which Practitioner may provide services in conjunction with Company that
require the Parties to access, create and use health information that is
protected by state and/or federal law;
WHEREAS, Company agrees to give Practitioner’s patients access
to the TNS Program upon Practitioner’s
purchase of the program;
WHEREAS, the Parties will create or receive from or on
behalf of each other, or have access to, Protected Health Information (“PHI”) in the course of
providing services (“Services”); and
WHEREAS, pursuant to the Health Insurance Portability
and Accountability Act of 1996 and its implementing administrative
simplification regulations (45 CFR §§ 160-164) (“HIPAA”) as either have
been amended by Subtitle D of the Health Information Technology for Economic
and Clinical Health Act and its implementing regulations, as Title XIII of
Division A and Title IV of Division B of the American Recovery and Reinvestment
Act of 2009 (Pub. L. 111-5) (the “HITECH
Act”),
the Parties are required to enter into this Agreement.
NOW THEREFORE, in consideration of the foregoing
recitals and the mutual covenants contained herein, the Parties, intending to
be legally bound, agree as follows:
I. DEFINITIONS
Terms used but not otherwise defined in this Agreement
shall have the same meaning as those terms defined in HIPAA, as amended.
II. EFFECT OF AGREEMENT
The Parties agree that any ambiguity in this Agreement
shall be resolved in favor of a meaning that permits the Parties to comply with
HIPAA.
III. PHI OBLIGATIONS
Permitted Uses and Disclosures: Except as otherwise
limited in this Agreement, the Parties may use or disclose PHI to (1) perform
functions, activities, or services for, or on behalf of, one another related to
the TNS Program, provided that such use or disclosure would not violate HIPAA
if made by the Parties or (2) as required or permitted by applicable law, rule,
regulation, or regulatory agency or by any accrediting or credentialing
organization to whom a Party is required to disclose such PHI. In addition, the
Parties may: (1) use PHI, if necessary, for the proper management and
administration of the Parties or to carry out the legal responsibilities of the
Parties; (2) disclose PHI, if necessary, if the following requirements are met:
(a) the disclosure is Required by Law; or (b) the Party obtains reasonable
assurances from the person to whom the information is disclosed that it will be
held confidentially and used or further disclosed only as Required by Law or
for the purpose for which it was disclosed to the person, and the person
notifies the Party of any instances of which it is aware in which the
confidentiality of the PHI has been breached; and (3) Company may use PHI to
provide Data Aggregation services to OvationLab as permitted by HIPAA.
Restrictions: The Parties shall not use or disclose PHI
for any other purpose not described herein.
The Parties’ Agents:
The Parties shall ensure that their agents, including subcontractors, to whom
they provide PHI agree to the same restrictions and conditions that apply to
the Parties pursuant to this Agreement with respect to PHI and Electronic PHI.
Appropriate Safeguards; Security: The Parties shall
implement appropriate and commercially reasonable safeguards to prevent use or
disclosure of PHI other than as permitted in this Agreement. Effective as of
the date the Parties are required to comply with 45 C.F.R. Part 164 Subpart C,
the Parties shall implement Administrative, Physical and Technical Safeguards
that reasonably and appropriately protect the Integrity, Availability, and
Confidentiality of Electronic PHI. The Parties shall report to one another in
writing within twenty-four (24) hours of any Security Incident of which it
becomes aware.
Government Access to Records: The Parties shall make
their internal practices, books, and records relating to the use and disclosure
of PHI received from, or created or received by one another available to the
Secretary of the Department of Health and Human Services for purposes of
determining the Parties’ compliance
with HIPAA. The Parties shall provide one another with a copy of any PHI that a
Party provides to the Secretary concurrently with providing such PHI to the
Secretary.
HITECH Act: The Parties hereby agree that the
provisions of HIPAA and the HITECH Act that apply to the Parties and that are
required to be incorporated by reference in an agreement are incorporated into
this Agreement as if set forth in this Agreement in their entirety and are
effective as of the applicable effective date of each such provision. The
Parties hereby further agrees to comply with all requirements of HIPAA, the
HITECH Act and each of their implementing regulations that are applicable to
business associates commencing as of the applicable effective date of each such
provision.
Reporting of Improper Use or Disclosure: A Party shall
report to the other Party in writing within twenty-four (24) hours of any
actual or suspected violations of this Agreement or any actual or suspected
Breach of Unsecured PHI. An actual or suspected Breach shall be treated as
discovered by the Party as of the first day on which such Breach is known to
the Party, its employees, officers or other agents, or, by exercising
reasonable diligence, should have been known to the Party, its employees,
officers or other agents. The Party’s
notification to the other Party, to the extent possible, shall include the
identity of each Individual whose Unsecured PHI has been, or is reasonably
believed to have been, breached and be in compliance with the HIPPA Breach
Notification Rules, and any other relevant state and/or federal rules. The
Parties further agree to fully cooperate in good faith with and to assist one
another in complying with the requirements of HIPAA and the HITECH Act,
including without limitation, the provision of written notices to affected
Individuals following the discovery of a Breach of Unsecured PHI if requested
by a Party.
Mitigation: The Parties shall mitigate, to the extent
practicable, any harmful effect that is known to a Party of a use or disclosure
of PHI or Unsecured PHI by a Party in violation of the requirements of this
Agreement, HIPAA or the HITECH Act.
Availability of PHI: To the extent that a Party is
required to maintain PHI that is part of a Designated Record Set, the Party
shall within ten (10) days after a written request from the other Party: (1)
provide access, at the request of the other Party, and in the time and manner
designated by the Party, to such PHI to the Party or, as directed by the Party,
to an Individual in order to meet the requirements under 45 CFR § 164.524; and (2)
make amendments to such PHI as directed or agreed to by the Party in accordance
with the requirements of 45 CFR § 164.526.
Band information related to such disclosures and,
within ten (10) days after the Party’s
written request, shall provide to the Party or to an Individual, in time and
manner designated by the Party, information collected in accordance with this
Section, as would be required for the Party to respond to a request by an
Individual for an accounting of disclosures of PHI in accordance with 45 CFR § 164.528.
Notice: The Parties shall provide each other with the
notice of privacy practices that a Party produces in accordance with 45 CFR § 164.520, as well as
any subsequent changes to the notice of privacy practices.
Changes in Access by Individual: The Parties shall
provide each other with any changes in, or revocation of, permission by an
Individual to use or to disclose PHI, if such changes affect the other Party’s permitted or
required uses and disclosures.
Restrictions on Use and Disclosure of PHI: The Parties
shall notify one another of any restriction to the use or disclosure of PHI
that a Party has agreed to in accordance with 45 CFR § 164.522.
HIPPA Release and Informed Consent: Practitioner shall
obtain informed consent from its patients related to the use of aggregate PHI
data, release of PHI between the Parties and with the assigned coach, all
privacy notifications and authorization related to electronic communication.
IV. SCOPE
Practitioner agrees to provide BNP any patient
information and recommendations as requested that could contribute to the
success of their patient enrolled in TNS. Coaches do not make recommendations
nor provide medical advice and/or treatment so Practitioner understands that
their patient will be referred back to them by BNP to address any medical or
personalized nutrition needs that arise. Practitioner understands that all
communications regarding patients, TNS programs, payments etc. will be directly
with BNP. Practitioner will not attempt or respond to any communications from a
current or prior BNP coach unless the communication is initiated by BNP.
V. CONFIDENTIALITY
During the Business Arrangements, Practitioner may have
access to and become acquainted with various trade secrets, copyright
materials, inventions, innovations, processes, information, records and
specifications owned or licensed by Company and/or used by Company in
connection with the operation of its business including, without limitation,
files, records, documents, BNP’s
Licensed Assets (including, but not limited to trademarks, copyrights and all
intellectual property), artwork/creative, training materials, curriculum,
instruction manuals, the Total Neuropathy Solution (“TNS”) program materials,
and TNS BNP (“Total
Neuropathy Solution Better Nutrition Program”) materials including any and all
BNP materials and resources (collectively, “BNP
Materials”).
Practitioner agrees that it will not disclose any of the aforesaid, directly or
indirectly, or use any of them in any manner, either during the term of this
Agreement or at any time thereafter, except as required in the course of this
engagement with Company, such as approved marketing use, including sharing
images of the TNS App (the images in the App store) or any other marketing
materials provided by BNP, OvationLab, or Breakthrough Marketing. All BNP
Materials shall remain the exclusive property of Company. Practitioner shall
not retain any copies of the foregoing without Company’s
prior written permission.
VI. NON-SOLICITATION; NONINTERFERENCE AND
NON- COMPETE
During this Agreement and for a period of five (5)
years following any termination of this Agreement, Practitioner shall not,
directly or indirectly hire, solicit, or encourage to leave the Company’s employment or
engagement, any current or prospective Coach involved with any component of the
TNS Program or hire any such current or prospective Coach who has left the
Company’s employment or
contractual engagement within five (5) years of such current or prospective
employment or engagement.
During the duration of Practitioner’s business
relationship with Company and for a period of three (3) years following
termination of this Agreement, Practitioner will not engage in any other business
or professional activity involving a neuropathy nutrition program. Practitioner
agrees that it will not use any of BNP’s
Licensed Assets or any of the Company’s
other assets at any time and/or for any purpose.
VII. INDEMNIFICATION
Practitioner agrees to indemnify, defend, and hold
Company, its employees, owners, officers, board members, agents, coaches, and
subcontractors harmless from any and all liabilities, claims, demands, damages,
and all costs and expenses, arising out of the performance of the services
performed pursuant to this Agreement that are caused, in whole or in part, by
Practitioner's negligent or wrongful act or omission or that of anyone employed
by Practitioner for whose acts Practitioner may be liable, or that result from
the use or misuse of the services performed pursuant to this Agreement.
Subject to the limitations and exclusions set forth in
Paragraph IX of this Agreement, Company agrees to indemnify and hold
Practitioner harmless from any and all liability, claims, demands, damages, and
all costs and expenses in connection therewith, for or arising out of the
performance of Company’s
services performed pursuant to this Agreement that are caused, in whole or in
part, by Company's willful misconduct or that of anyone employed by Company for
whose acts Company may be liable.
VIII. TERMINATION
Term: The Term of this Agreement shall be effective as
of the date set forth above and shall terminate when Practitioner and its
patients cease to utilize the TNS Program; provided, however, that certain
obligations shall survive termination of this Agreement as set forth in Section
XI.
Termination for Cause: Company may immediately
terminate this Agreement in the event that Practitioner breaches any provision
of this Agreement. In its sole discretion, Company may permit Practitioner the
ability to cure or to take substantial steps to cure such material breach to
Company’s satisfaction
within thirty (30) days after receipt of written notice from Company. Company
may additionally report any Breaches to the Secretary when required.
Return or Destruction of PHI: Upon termination, the
Parties shall continue to extend the protections of this Agreement to such PHI,
and limit further use of such PHI to those purposes.
Termination of Business Arrangement: Upon termination
of all Business Arrangements, either party may terminate this Agreement by
providing written notice to the other party. Company may terminate this
Agreement at any time, upon written notice to Practitioner.
IX. LIMITATION ON ACTION
ANY ACTION AGAINST COMPANY ARISING OUT OF, RESULTING
FROM, OR RELATED TO THE PERFORMANCE OR BREACH OF THIS AGREEEMENT SHALL BE FILED
NOT LATER THAN ONE YEAR AFTER THE CAUSE OF ACTION HAS ACCRUED, PROVIDED
PRACTITIONER HAS COMPLIED WITH ALL AGREEMENT REQUIREMENTS FOR NOTICE.
PARTIES HEREBY WAIVE TO THE FULLEST EXTENT PERMITTED BY
LAW ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING BASED UPON,
ARISING OUT OF, OR IN ANY WAY RELATING TO THIS AGREEMENT.
X. COMPLIANCE WITH LAW
The Parties shall comply with all laws, regulations,
and requirements applicable to the Business Arrangements, including, without
limitation, international, federal, state, and local laws, and the laws
applicable to any location where any Business Arrangements are to be performed,
including maintaining all required licenses and certifications. Such compliance
shall include, without limitation, the Health Insurance Portability and
Accountability Act of 1996 and its implementing administrative simplification
regulations (45 CFR §§ 160-164) (“HIPAA”) as either have
been amended by Subtitle D of the Health Information Technology for Economic
and Clinical Health Act and its implementing regulations, as Title XIII of
Division A and Title IV of Division B of the American Recovery and Reinvestment
Act of 2009 (Pub. L. 111-5) (the “HITECH
Act”),
environmental, human rights, labor, employment, non- discrimination and
anti-corruption laws (including the Foreign Corrupt Practices Act).
XI. MISCELLANEOUS
Amendment to Comply with Law: The Parties acknowledge
that it may be necessary to amend this Agreement to comply with modifications
to HIPAA, including but not limited to statutory or regulatory modifications or
interpretations by a regulatory agency or court of competent jurisdiction. No
later than sixty (60) days after the effective date of any such modifications,
the Parties agree to use good faith efforts to develop and execute any
amendments to this Agreement as may be required for compliance with HIPAA.
Insurance: Practitioner will carry general liability
insurance (including professional liability insurance) relative to any service
that it performs in conjunction with this Agreement with limits of not less
than $1,000,000 per occurrence. Practitioner shall provide a certificate of
coverage upon request of Company.
Merger. This Agreement shall not be terminated by the
merger or consolidation of Company into or with any other entity.
Amendment: This Agreement may be amended or modified
only in writing signed by the Parties.
No Third Party Beneficiaries: Nothing expressed or
implied in this Agreement is intended to confer, nor shall anything herein
confer, upon any person other than Company, Practitioner and their respective
successors or assigns, any rights, remedies, obligations or liabilities
whatsoever.
Successors and Assigns. All of the provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective heirs, if any, successors, and assigns.
Governing Law: This Agreement shall be governed by and
construed in accordance with HIPAA and its implementing administrative
simplification regulations, the HITECH Act and its regulations, and the laws of
the State of Ohio without regard to conflicts of law principles. The Parties
agree that the jurisdiction and venue of any action with respect to this
Agreement shall be in a court of competent subject matter jurisdiction located
in the United States District Court of the Southern District of Ohio, or the
Court of Common Pleas, Franklin County, Ohio. The Parties hereby consent to
personal jurisdiction and proper venue in the courts in the United States
District Court of the Southern District of Ohio, or the Court of Common Pleas,
Franklin County, Ohio.
Waiver. Waiver by one party hereto of breach of any
provision of this Agreement by the other shall not operate or be construed as a
continuing waiver.
Paragraph Headings: The paragraph headings in this
Agreement are for convenience only. They form no part of this Agreement and
shall not affect its interpretations.
Unenforceability of Provisions. If any provision of
this Agreement, or any portion thereof, is held to be invalid and
unenforceable, then the remainder of this Agreement shall nevertheless remain
in full force and effect. IF AND TO THE EXTENT ANY WAIVER, EXCLUSION,
LIMITATION, INDEMNITY, OR OTHER PROVISION IN ANY EXHIBIT, ADDENDUM, THIS AGREEMENT
OR ANY OTHER CONTRACT DOCUMENTS FAILS TO COMPLY WITH THE LAW OF THE STATE UNDER
WHICH IT IS CONSTRUED DUE TO THE ABSENCE OF CAPITALIZATION OR OTHER GRAPHIC
EMPHASIS, EACH PARTY WAIVES OBJECTION TO THE PROVISION ON THAT BASIS TO THE
EXTENT PERMITTED BY LAW AND OTHERWISE AGREES TO BE ESTOPPED FROM RAISING SUCH
OBJECTION IN ANY JUDICIAL PROCEEDING. IN DOING SO, EACH PARTY ACKNOWLEDGES THAT
IT IS A SOPHISTICATED COMMERCIAL PARTY REPRESENTED BY COUNSEL IN CONNECTION
WITH THE NEGOTIATION AND EXECUTION OF THIS AGREEMENT, INCLUDING BUT NOT LIMITED
TO THIS PARAGRAPH.
Attorneys’ Fees.
The prevailing Party shall have the right to collect from the other Party its
reasonable costs and attorneys’ fees
incurred in enforcing this Agreement.
Notices. Any and all notices, demands, or other
communications required or desired to be given hereunder by any Party shall be
in writing and shall be validly given or made to another Party if personally
served, or if deposited in the United States mail, certified or registered,
postage prepaid, return receipt requested or via email with read receipt. If
such notice or demand is served personally, notice shall be deemed
constructively made at the time of such personal service. If such notice,
demand, or other communication is given by mail, such notice shall be
conclusively deemed given five days after deposit thereof in the United States
mail addressed to the party to whom such notice, demand or other communication
is to be given at the addresses identified below. Any party hereto may change
its address for purposes of this paragraph by written notice in the manner
provided herein.
Entire Agreement: This Agreement, the TNS Sales Terms,
and all exhibits hereto, constitutes the entire agreement between the Parties
with respect to the matters contemplated herein and supersedes all previous and
contemporaneous oral and written negotiations, commitments, and understandings
relating thereto. Each party to this agreement acknowledges that no
representations, inducements, promises, or agreements, orally or otherwise,
have been made by any party, or anyone acting on behalf of any party, which is
not embodied herein, and that no other agreement, statement, or promise not
contained in this Agreement shall be valid or binding.
Survival. In the event of any termination of this
Agreement, Paragraphs V-VII and IX shall survive and continue in effect. Any
term or condition of this Agreement, which by its nature is intended to survive
termination of this Agreement, shall survive such termination.
Cumulative Remedies. The various rights and remedies of
Company under this Agreement or otherwise shall be construed to be cumulative,
and none of them shall be exclusive of any other or of any right or remedy
allowed by law or in equity by statute. No delay or omission of Company to
exercise any right, privilege, or power accruing upon any event of default
shall impair any such right, privilege, or power, or shall be construed to be a
waiver of any such event of default or any acquiescence therein; and every
power and remedy given by this Agreement to Company may be exercised from time
to time, as often as may be deemed expedient by Company.
IN WITNESS WHEREOF, the Parties hereto have executed
this Agreement by their duly authorized representatives to be effective as of
the Effective Date.
COMPANY
Ashley Koff Better Nutrition Program, LLC
By: Ashley Koff, RD
Its: Member
Address: 808 Yard St #416
Columbus, OH 43212