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COMBINED TERMS OF SERVICE DOCUMENT

My Private Practice, Inc.

Last Revised: January 1, 2012

PRACTICE SUPPORT AGREEMENT

This Practice Support Agreement (the "Agreement") is made and entered into by and between My Private Practice, Inc., a California corporation and you, and is made effective as of the date of electronic acceptance.  This Agreement sets forth the general terms and conditions of your use of this website (this “Site”) and the products and services (collectively, the “Services”) found at this Site, and is in addition to (not in lieu of) any specific terms and conditions that apply to the particular Services you purchase or access through this Site.

Your electronic acceptance of this Agreement signifies that you have read, understand, acknowledge and agree to be bound by this Agreement, along with the following corporate policies and/or agreements, which are incorporated herein by reference:

- Business Associate Agreement

- Proprietary Information Agreement

The terms “we”, “us”, “our” or “Company” shall refer to My Private Practice, Inc.  The terms “you”, “your”, “User” or “Practitioner” shall refer to any individual or entity who accepts this Agreement.  Nothing in this Agreement shall be deemed to confer any third-party rights or benefits.

My Private Practice Inc., in its sole and absolute discretion, may change or modify this Agreement, and the corporate policies and/or agreements which are incorporated herein, at any time, and such changes or modifications shall be effective immediately upon the earlier of (i) our email notification to you advising you of such changes or modifications or (ii) your electronic acceptance of this Agreement after such changes or modifications have been made to this Agreement as indicated by the “Last Revised” date at the top of this page.

Recitals

1. A. Practitioner is duly licensed health care practitioner who provides mental health services to clients ("Practice").  Practitioner from time to time does or may retain other health care providers (the "Providers") to render professional services to clients of Practitioner, and such Providers are duly licensed when required by law.
2. B. Practitioner desires to engage Company to provide certain electronic support services for its practice at the offices identified on Schedule A attached hereto (the "Practice Sites").
3. C. Company is a California general business corporation, the principals of which have experience in providing electronic support services for mental health practices, including creating and maintaining electronic health records, preparing invoices for services rendered, summarizing practice income and expenses, and compiling practice statistics.
4. D. Company desires to provide certain electronic support services for the Practice Sites.
5. E. Practitioner and Company desire to enter into a written agreement to provide a full statement of their respective rights and responsibilities during the term of this Agreement.

NOW THEREFORE, in consideration of the mutual covenants contained herein, Company and Practitioner hereby agree as follows:

1. 1. Company Obligations.  
1. A. General.  Company hereby grants Practitioner a nonexclusive license to use Company's program, as it may be modified from time to time ("Licensed Program"), and to access Company's hardware ("Company's Server") through an internet uniform resource locator ("URL" or web address) designated by Company and accessible from Practitioner's computer workstation.  In its sole discretion Company may own Company's Server or arrange for a third party to provide Company's Server.  Company shall provide all the support services listed in subsections B through K of this Section 1 ("Services").  Unless otherwise excepted in this Agreement, Company shall provide Services twenty-four hours a day, seven days a week.  
2. B. Electronic Health Records.  Company shall provide Licensed Program and Company's Server as reasonably necessary for Practitioner to create, manage, modify, store and control an electronic record of health-related information of an individual who is a client of Practitioner. ("electronic health records")  Company shall not be responsible for the entry of any data into or the content of any electronic health records.
3. C. Billing Records.  Company shall provide Licensed Program and Company's Server as reasonably necessary for Practitioner to create, manage, modify, store and control an electronic record of billing and collection data for an individual who is a client of Practitioner, including without limitation dates of service, diagnostic codes, charges, payer information and collections.  Company shall not be responsible for the entry of any data into or the content of any electronic billing records.
4. D. Client Invoices.  Company shall provide Licensed Program as reasonably necessary for Practitioner to print invoices and envelopes for Practitioner's clients, which invoices and envelopes shall reflect the most current data entered by Practitioner into the billing records.
5. E. Financial Account Register.  Company shall provide Licensed Program as reasonably necessary for Practitioner to maintain an electronic register of separate bank or other financial accounts to allow Practitioner to track Practitioner's revenues and expenses by categories.
6. F. Reports.  Company shall provide Licensed Program as reasonably necessary for Practitioner to generate the following reports: 
1. i. Practitioners' revenues and expenses by category, Practice Site, and time interval;
2. ii. Work in progress, receivables and collections by payer, Practice Site, and time interval;
3. iii. Various aging reports;
4. iv. Hours of services provided by Practice Site, time interval and Provider (if any).
7. G. Copies Of Stored Data.  Unless otherwise required by law, at any time during the term of the Agreement and for thirty (30) days after the effective date of the expiration or other termination of this Agreement:
1. i. Company shall allow Practitioner to print out on Practitioner's own printer copies of any and all of Practitioner's stored data or created reports ("Practitioner's Data"), including without limitation electronic health records, billing records, and financial account records.  
2. ii. If requested in writing by Practitioner, Company shall provide Practitioner with electronic or hard copies of any or all of Practitioner's Data.  Such electronic copies shall be in a format reasonably acceptable to Company.  For such copies Practitioner shall pay Company in advance an amount reasonably determined by Company.
8. H. Access To Data.  Company shall limit access to Practitioner's records and other data to those persons authorized by Practitioner.
9. I. Transmission Of Data.  Company shall provide Licensed Program as reasonably necessary for Practitioner to encrypt all data transmitted from its computer workstation to Company's Server.  Company shall encrypt all data it transmits from Company's Server to Practitioner's computer workstation and shall provide Licensed Program reasonably necessary for Practitioner to unencrypt such data.
10. J. Automatic Backup Of Records.  Company shall routinely and automatically backup those Practitioner's records stored on Company's Server according to commercially reasonable standards.
11. K. Destruction Of Practitioner's Data.  Company shall destroy all Practitioner's Data in its possession on the sooner of (i) thirty (30) days after the effective date of the expiration or other termination of this Agreement or (ii) after providing Practitioner with electronic or hard copies of Practitioner's Data (if requested in accordance with Section 1.G.ii above).  Such destruction shall comply with HIPAA and HITECH (as both are defined in Section 3.B below) and with the technologies and methodologies referred to in Section 3.C below.
12. L. Additional Services.  From time to time Company in its sole discretion may provide or cease to provide support services in addition to those listed in subsections B through K above.  While Company provides such additional support services, they shall be deemed included within the term "Services".  Company shall provide not less than ten (10) days notice to Practitioner, if Company ceases to provide such an additional support service ("Cessation Notice).  Notwithstanding any contrary provision herein, Company may provide a Cessation Notice by posting it on the Company's URL and the Cessation Notice shall be effective when posted.
13. M. Maintenance and Upgrades.  Company may limit Practitioner's use of Licensed Program and access to Company's Server when software is being upgraded and/or the server is being maintained.  Such limitation shall not be a breach by Company of its obligations under this Agreement.
14. N. Errors.  Company shall make a reasonable effort to fix any error that Practitioner reports but does not guarantee or promise that Company will be able to do so in any particular length of time or at all.
15. O. Items Company Not Obligated To Provide.  Except for additional support services provided pursuant to Section 1.L above: 
1. i. Company shall not provide any support services unless they are expressly set forth in subsection B through G of this Section 1.
2. ii. The following non-exhaustive list describes some services not provided by Company: electronically billing any payer; posting or otherwise delivering any invoice; processing credit card transactions; collecting payments; depositing payments in Provider's financial accounts; storing hard copies (including without limitation paper records or photographs); electronic banking; tax advice; preparation of tax forms; payment of employment or other taxes; internet service.
3. 2. Practitioner's Obligations.
16. A. Workstation Requirements.  Practitioner shall access Company's URL only through workstations having the minimum hardware, software and internet service requirements then established by Company.
17. B. General Use Of Licensed Program & Standard License Agreement.  
1. i. Practitioner shall not disassemble, decompile, or in any manner reverse engineer the Licensed Program.
2. ii. Practitioner shall not attempt to download or copy any portion of the Licensed Program.
3. iii. Practitioner shall comply with all terms and conditions of any Company standard licensing agreement, end users license agreement and/or users agreement that is posted at Company's URL.  If the terms of any of the foregoing disagree with this Agreement, this Agreement shall control.
18. C. Use Solely For Practice.  Practitioner and Providers shall use the Licensed Program and/or access Company's Server only with respect to the conduct of Practitioner's professional practice at the Practice Sites.  Practitioner shall permit a third party to use the Licensed Program and/or access Company's Server only with respect to the conduct of Practitioner's professional practice at the Practice Sites.
19. D. Return Of Licensed Program.  On expiration or other termination of this Agreement, Practitioner shall immediately return to Company all copies of the Licensed Program or any parts of the Licensed Program in Practitioner's possession or under Practitioner's control, including without limitation any related support documentation.
20. E. Testing.  Practitioner agrees to be a test user for Company pursuant to the additional terms and conditions set forth in attached Exhibit 2.E.

1. 3. Privacy & Security.
2. A. General.  Company shall comply with all federal and California laws regarding the confidentiality, privacy and security of health information.  Practitioner (including all of Practitioner's Providers) shall comply with all federal and state laws regarding the confidentiality, privacy and security of health information, where "state" refers to the state(s) in which Practitioner conducts the Practice.
3. B. Business Associate Agreement.  As required by the Standards for Privacy of Individually Identifiable Health Information at 45 CFR part 160 and part 164, subparts A and E ("Privacy Rule") and the Standards for the Protection of Electronic Protected Health Information at 45 CFR part 160 and part 164, subparts A and C ("Security Rule") promulgated under the Health Insurance Portability and Accountability Act of 1996, Pub. L. No. 104-191 (commonly referred to as "HIPAA"), as subsequently amended, and as required by the Health Information Technology for Economic and Clinical Health Act of 2009 ("HITECH Act"), Company and Practitioner agree to execute a Business Associate Agreement concurrently with the execution of this Agreement.
4. C. Specific Technologies And Methodologies.  Company and Practitioner shall utilize the technologies and methodologies that, pursuant to issuances of the Secretary of the Department of Health and Human Services, render "protected health information" (as defined in 45 CFR 160.103) unusable, unreadable or indecipherable to unauthorized individuals.  Such technologies and methodologies include encryption of transmitted and stored date.
5. 4. Confidentiality.  Company shall keep all Practitioner's Data confidential, except as required by law or as permitted by Practitioner in writing.  Additionally, Company and Practitioner agree to execute a Proprietary Information Agreement concurrently with the execution of this Agreement.
6. 5. Practice Support Fee.
7. A. Amount and Time Of Payment.  For each calendar month during the term of this Agreement, Practitioner shall compensate Company the amount shown on attached Exhibit 5.A ("Monthly Fee").  Practitioner shall compensate Company on or before the first (1st) calendar day of the month.  The Monthly Fee for a partial calendar months shall be prorated based on the actual number of days in the month.
8. B. Waiver For Testing.  Practitioner acknowledges that Company is reducing its Monthly Fee in return for the early adoption services Practitioner is providing pursuant to Section 2.E and Exhibit 2.E of this Agreement.
9. 6. Insurance.
10. A. Malpractice Coverage.  Practitioner shall obtain and maintain malpractice insurance covering it and its contractors, employees and other agents for all acts or failures to act of such persons with respect to the Practice occurring during the term of this Agreement.  Such insurance shall have minimum limits of one million dollars ($1,000,000) per occurrence and three million dollars ($3,000,000) aggregate in any one policy year.  If the insurance is "claims made" rather than "occurrence," the Practitioner shall also obtain and maintain "tail" or equivalent coverage with the same limits and of indefinite duration.
11. B. General Liability Coverage.  At its sole cost and expense, Practitioner shall obtain and maintain general liability insurance that covers the Practice Sites and the services Practitioner, its contractors, employees and other agents provide with respect to the Practice, which insurance shall have limits of not less than one million dollars ($1,000,000) per occurrence.  
12. C. Certificates.  Each party shall furnish to the other certificate(s) of insurance evidencing the existence of the coverage required by this Section 6.
13. 7. Term and Termination.  
14. A. Initial and Renewal Term.  The term of this Agreement shall begin on the Effective Date and continue until 12/31/2012, after which Practitioner may elect to continue to use the system indefinitely by accepting the terms and conditions of a standard (non-test) user, which will include an increase in Monthly Fees.
15. B. Breach and Cure.  If either party substantially and materially fails to perform any duty or obligation imposed upon it by this Agreement and such default continues for a period of five (5) days after written notice thereof has been received by the defaulting party, the non-breaching party may terminate this Agreement on written notice.
16. C. Issues Involving Licensed Program Or Testing.  Company on notice may terminate this Agreement and any license and/or use agreement with respect to the Licensed Program if:  
1. i. If Practitioner fails to fully comply with any of its obligations under Sections 2.B or 2.E above; or
2. ii. any court determines that the Licensed Program infringes an intellectual property right of a third party.
3. 8. No Representations, Warranties.  Company makes no representations or warranties concerning the qualities, completeness, accuracy, reliability or performance of the Licensed Program or Company's Server.  Company provides the Licensed Program and Company's Server  AS IS. THERE IS NO IMPLIED WARRANTY OF MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR PURPOSE with regard to the Licensed Program of Company's Server. 
4. 9. Limitations On Liability.  Company assumes and shall have no liability to Practitioner, under any circumstances, for any damages or claims that may arise directly or indirectly under this Agreement or otherwise in connection with Practitioner's (i) use of or inability to use the Licensed Program and/or (ii) access to or inability to access Company's Server, including without limitation for special, indirect, incidental, consequential or other damages.  No officer, director, shareholder, manager or other agent of Company shall be personally obligated in any respect or have any personal liability for any of the obligations and agreements of Company under this Agreement.
5. 10. Independent Relationship.  It is mutually understood and agreed that the parties are at all times acting and performing under this Agreement as independent contractors.  Neither shall have nor exercise any control or direction over the methods by which the other party or the other's employees, subcontractors or other agents perform their obligations.  Each party shall be solely responsible for and shall be in compliance with all state and federal laws pertaining to employment taxes, income tax withholding, unemployment compensation contributions, and other employment related statutes regarding their respective employees, agents and servants.
6. 11. No Arrangements; Fair Market Value.  The parties acknowledge and agree that the benefits to the parties pursuant to this Agreement do not require, are not payment for, and are not in any way contingent upon the recommendation, referral or any other arrangement for the provision of any goods, services or other items provided to any client, patient or other person.  The parties also acknowledge and agree that, after reasonable inquiry, they have determined that the compensation provisions under this Agreement are fair market value for the goods and services provided.
7. 12. Non-Exclusivity.  During the term of this Agreement, either party may provide goods and/or services to any third parties.
8. 13. Miscellaneous. 

1. A. Amendment. This Agreement may be amended only by a writing that specifically refers to this Agreement and expressly states that it constitutes an amendment and only if such writing has been signed by all parties hereto.  
2. B. Complete Agreement. This Agreement supersedes all prior and contemporaneous oral or written agreements between the parties concerning the subject matter hereof, except for the Business Associate Agreement referred to in Section 3.B above and the Proprietary Information Agreement referred to in Section 4 above.  Should there be any disagreement between the Business Associate Agreement and either of the other two, the Business Agreement shall control.  Should there be any disagreement between the Proprietary Information Agreement and this Practice Support Agreement, the Proprietary Information Agreement shall control.
3. C. Equitable Remedy. If Practitioner should default in any obligation hereunder, Practitioner acknowledges that Company may be irreparably damaged and that it would be extremely difficult and impractical to measure such damage.  Accordingly, Practitioner acknowledges that Company, in addition to any other available rights or remedies, shall be entitled to specific performance, injunctive relief, and any other equitable remedy and that Company shall be relieved of any obligation to post bond in such a proceeding.  Practitioner waives the defense that a remedy at law or damages is adequate.
4. D. Exhibits and Schedules.  All exhibits and schedules referred to herein and attached hereto are incorporated by reference and made a part of this Agreement.  In any exhibit or schedule is inconsistent with any provision of this Agreement, this Agreement shall control.
5. E. Force Majeure.  Notwithstanding any provision contained herein to the contrary, a Company shall not be deemed to be in default hereunder for failing to perform any obligation if such failure is caused by acts of war, terrorism, civil riots or rebellions; quarantines, embargoes and other similar unusual governmental action; extraordinary elements of nature or acts of nature; acts, omissions or failures of a third party providing Company's Server; acts, omissions or failures of any internet service provider; or anything else that Company could not have reasonably prevented with commercially accepted processes and precautions.
6. F. Governing Law. This Agreement shall be governed by the laws of the State of California.
7. G. Interpretation.  The section and other headings in this Agreement are for convenience only and are not a substantive part of this Agreement.  Where necessary to carry out the intentions of this Agreement, all words used herein in the singular shall extend to and include the plural and vice versa, and all words used in any gender shall extend to and include all genders. Neither this Agreement nor any uncertainty or ambiguity in it shall be construed or resolved against any party whether under any rules of construction or otherwise. 
8. H. Legal Counsel. Each party warrants and represents that it knows this Agreement may materially affect the party's rights and that the party has been represented by separate legal counsel or has had adequate time to retain legal counsel but has knowingly decided not to obtain such counsel.  
9. I. Notice.  Any and all notices or other communications related to this Agreement shall be given in writing by personal delivery or by United States Postal Service ("USPS") certified mail with return receipt requested, Express Mail or Priority Mail.  Notice by mail shall be sent to a party at the address appearing in the party's signature block (or such other address as the party designates pursuant to notice given in accordance with this provision).  Notice shall be effective on receipt.  
10. J. Severability. If any provision of this Agreement shall be declared void or unenforceable by a court or tribunal of competent jurisdiction, the remaining provisions of this Agreement shall nevertheless continue in effect. 
11. K. Successors and Assigns. This Agreement shall be binding on any successor in interest to a party.  Practitioner shall not assign, sublicense, or otherwise transfer this Agreement or any rights under it without the prior written consent of Company. 
12. L. Survival of Provisions.  Upon expiration or termination of this Agreement, no party shall have any further obligation hereunder except for (i) obligations due and owing which arose prior to the date of expiration or termination and (ii) obligations, promises, or covenants contained herein which expressly extend beyond the term of this Agreement.  
13. M. Third Party Beneficiaries. This Agreement is not intended and shall not be construed to create any rights for any third party.  
14. N. Waiver. Waiver of any default or breach of this Agreement shall not be construed as a waiver of any subsequent default or breach.  Any delay in exercising any right or remedy hereunder shall not be deemed to be a waiver of such right or remedy.

Exhibit 2.E 

Additional Terms And Conditions Of Beta Testing & Early Adoption

During the initial and any renewal term of the Agreement, Practitioner shall: 

1. inform Company immediately of any errors, difficulties, or other problems with the Licensed Program;

2. provide weekly reports to Company on Practitioner's use of the Licensed Program, including information fully describing any errors Practitioner finds and the results of any evaluations or tests Practitioner conducts on or with the Licensed Program;

3. provide Company with any suggestions or ideas that Practitioner has for improving or enhancing the Licensed Program, including ideas or suggestions relating to enhanced performance, increased ease of use, or desirable additional features; and

4. furnish Company with reasonable samples of materials generated by the Licensed Program (which materials Practitioner may redact and which Company will keep confidential). 

Company has the right to implement or reject any suggestion or idea that Practitioner provides to Company for improving or enhancing the Licensed Program and may implement any such suggestion or idea in any of its software products, including the Licensed Program, without giving Practitioner any paid compensation or credit.

All applicable rights and interests in copyrights, patents, trademarks and trade secrets in the Licensed Program belong to and shall remain with Company, including without limitation any suggestion or idea that Practitioner (or any employee, contractor or other agent of Practitioner) provides to Company with respect to the Licensed Program.

Company may call upon Practitioner to provide customer testimonial or case studies for use in Company's marketing communications. All such testimonials and case studies will be used only with Company's permission and approval prior to publication.

Exhibit 5.A
Monthly Fee

Company will provide access and data storage for one user to the Licensed Program (EZ Practice Pro!) in return for a Monthly Fee. The monthly subscription fee will be charged approximately one week prior to the start of the new month, to a credit/debit card provided by Practitioner. A receipt and record of charges to Practitioner is available using features in the Licensed Program. Paid subscription is made effective as of the date of electronic acceptance and processing of the subscription fee. Practitioner can cancel the subscription at any time using features in the Licensed Program. Cancellation will discontinue all future billings and access to the Licensed Program will no longer be allowed at the end of the paid subscription period. Fees are not refundable.

During the beta test and early adoption periods, certain features, such as credit card processing or electronic billing, may be added to the Licensed Program that include separate usage fees. Practitioner can elect to use these features and in doing so agrees to pay the additional associated fees. 

Beta test users will be charged a Monthly Fee of $0 and will provide frequent feedback on the Program and the Site. 

Early Adopter users will be charged a Monthly fee of $20 and will provide occasional feedback on Program and Site. Company will waive the Monthly fee for the Early Adopters first month of use.

The Monthly Fee for early adopter users is reduced only during the period of testing (as determined by Company) after which Practitioner can elect to continue under the terms and conditions of a standard user with a standard Monthly Fee.

Business Associate Agreement

This Business Associate Agreement is made and entered into by and between My Private Practice, Inc., a California corporation and you, and is made effective as of the date of electronic acceptance.  Your electronic acceptance of this Agreement signifies that you have read, understand, acknowledge and agree to be bound by this Agreement

The terms “we”, “us”, “our” or “Company” shall refer to My Private Practice, Inc.  The terms “you”, “your”, “User” or “Practitioner” shall refer to any individual or entity who accepts this Agreement.  Nothing in this Agreement shall be deemed to confer any third-party rights or benefits.

My Private Practice Inc., in its sole and absolute discretion, may change or modify this Agreement, and the corporate policies and/or agreements which are incorporated herein, at any time, and such changes or modifications shall be effective immediately upon the earlier of (i) our email notification to you advising you of such changes or modifications or (ii) your electronic acceptance of this Agreement after such changes or modifications have been made to this Agreement as indicated by the “Last Revised” date at the top of this page.

Recitals

1. A. Company and Practitioner entered into a Practice Support Agreement also as of the Effective Date, pursuant to which Company provides for Practitioner's non-exclusive use a "Licensed Program" and "Company's Server" (as the quoted terms are defined in the Practice Support Agreement).
2. B. Company and Practitioner also entered into a Proprietary Information Agreement also as of the Effective Date.
3. C. This Business Associate Agreement is the one referred to in Section 3.B of the Practice Support Agreement.

NOW, THEREFORE, to induce Company and Practitioner to enter into the Practice Support Agreement and for other good and valuable consideration, the receipt and sufficiency of which the parties hereby acknowledge, the parties agree as follows:

1. I. Definitions
1. A. Privacy Rule.  "Privacy Rule" shall mean the Standards for Privacy of Individually Identifiable Health Information at 45 CFR part 160 and part 164, subparts A and E.
2. B. Security Rule.  "Security Rule" shall mean the Standards for the Protection of Electronic Protected Health Information at 45 CFR part 160 and 45 CFR part 164, subparts A and C.
3. C. HITECH Act.  "HITECH Act" shall mean the Health Information Technology for Economic and Clinical Health Act of 2009.
4. D. Specific definitions:
1. 1. BAA.  "BAA" shall mean this Business Associate Agreement.
2. 2. Business Associate.  "Business Associate" shall mean Company. 
3. 3. Covered Entity.  "Covered Entity" shall mean Practitioner. 
4. 4. Individual.  "Individual" shall have the same meaning as the term "individual" in 45 CFR 164.501 and shall include a person who qualifies as a personal representative in accordance with 45 CFR 164.502(g).
5. 5. Protected Health Information.  "Protected Health Information" shall have the same meaning as the term "protected health information" in 45 CFR 164.501, limited to the information created or received by Business Associate from or on behalf of Covered Entity.
6. 6. Required By Law.  "Required By Law" shall have the same meaning as the term "required by law" in 45 CFR 164.501.
7. 7. Secretary.  "Secretary" shall mean the Secretary of the Department of Health and Human Services or his designee.
8. 8. Unsecured Protected Health Information.  " Unsecured Protected Health Information" shall mean protected health information that is not secured through the use of a technology or methodology specified by the Secretary in guidance issued pursuant to Section 13402(h) of the HITECH Act, except as otherwise specified in the HITECH Act.
5. E. Catch-all definition:  Terms used but not otherwise defined in this BAA and the Practice Support Agreement shall have the same meaning as those terms in the Privacy Rule, the Security Rule and/or the HITECH Act. 
6. II. Privacy Rule Obligations and Activities of Business Associate
7. A. Business Associate agrees to not use or disclose Protected Health Information other than as permitted or required by the BAA or as Required By Law.
8. B. Business Associate agrees to use appropriate safeguards to prevent use or disclosure of the Protected Health Information other than as provided for by this BAA.
9. C. Business Associate agrees to mitigate, to the extent practicable, any harmful effect that is known to Business Associate of a use or disclosure of Protected Health Information by Business Associate in violation of the requirements of this BAA.
10. D. Business Associate agrees to report to Covered Entity any use or disclosure of the Protected Health Information not provided for by this BAA of which it becomes aware.
11. E. Business Associate agrees to ensure that any agent, including a subcontractor, to whom it provides Protected Health Information received from, or created or received by Business Associate on behalf of Covered Entity, agrees to the same restrictions and conditions that apply through this BAA to Business Associate with respect to such information.
12. F. Business Associate agrees to provide access, at the request of Covered Entity, and within fifteen (15) days of actual receipt of such request in writing, to Protected Health Information in a Designated Record Set, to Covered Entity or, as directed by Covered Entity, to an Individual in order to meet the requirements under 45 CFR 164.524.
13. G. Business Associate agrees to make any amendment(s) to Protected Health Information in a Designated Record Set that the Covered Entity directs or agrees to pursuant to 45 CFR 164.526 at the request of Covered Entity or an Individual, within fifteen (15) days of actual receipt of such request in writing.
14. H. Business Associate agrees to make internal practices, books, and records, including policies and procedures and Protected Health Information, relating to the use and disclosure of Protected Health Information received from, or created or received by Business Associate on behalf of, Covered Entity available to the Secretary, within fifteen (15) days of actual receipt of such request in writing or in a time and manner designated by the Secretary, for purposes of the Secretary determining Covered Entity's compliance with the Privacy Rule. 
15. I. Business Associate agrees to document such disclosures of Protected Health Information and information related to such disclosures as would be required for Covered Entity to respond to a request by an Individual for an accounting of disclosures of Protected Health Information in accordance with 45 CFR 164.528.
16. J. Business Associate agrees to provide to Covered Entity or an Individual, within fifteen (15) days of actual receipt of such request in writing, information collected in accordance with Section II.I of this BAA, to permit Covered Entity to respond to a request by an Individual for an accounting of disclosures of Protected Health Information in accordance with 45 CFR 164.528.
17. III. Security Rule Obligations and Activities of Business Associate
18. A. Business Associate agrees to implement administrative, physical, and technical safeguards that reasonably and appropriately protect the confidentiality, integrity, and availability of the electronic Protected Health Information that it creates, receives, maintains, or transmits on behalf of the covered entity as required by the Security Rule. 
19. B. Business Associate agrees to implement reasonable and appropriate policies and procedures to comply with the standards, implementation specifications or other requirements 45 CFR 164 subpart C, including without limitation maintaining documentation of such policies and procedures for six years from the date of their creation or the date when they were last in effect, whichever is later.
20. C. Business Associate shall assure that any agent, including a subcontractor to whom it provides electronic Protected Health Information, shall agree to implement reasonable and appropriate safeguards to protect such information.
21. D. Business Associate shall report to Covered Entity any security incident of which Business Associate becomes aware.
22. IV. Additional HITECH Obligations
23. A. The administrative safeguards of 45 CFR 164.308, the physical safeguards of 45 CFR 164.310, the technical safeguards of 45 CFR 164.312, and the policies, procedures and documentation requirements of 45 CFR 164.316 shall apply to Business Associate in the same manner they apply to Covered Entity.
24. B. If Business Associate accesses, maintains, retains, modifies, records, stores, destroys, or otherwise holds, uses, or discloses unsecured protected health information, Business Associate shall--following the discovery of a breach of such information--(1) notify Covered Entity in compliance with Section 13402(b) of the HITECH Act, (2) comply with any and all other obligations of a business associate under Section 13402 of the HITECH Act, and (3) comply with any and all regulations adopted to carry out Section 13402 of the HITECH Act.
25. C. To the extent required by Section 13405(c) of the HITECH Act, Business Associate shall provide an accounting of its disclosures of protected health information upon a request made by an individual directly to Business Associate.
26. D. Business Associate shall comply with all privacy requirements of the HITECH Act, title XIII, subtitle D that are made applicable with respect to Covered Entity.
27. V. Permitted Uses and Disclosures by Business Associate
28. A. General Use and Disclosure.  Except as otherwise limited in this BAA, Business Associate may use or disclose Protected Health Information to perform functions, activities, or services for, or on behalf of, Covered Entity as specified in this BAA, provided that such use or disclosure would not violate the Privacy Rule if done by Covered Entity or the minimum necessary policies and procedures of the Covered Entity. 
29. B. Specific Use and Disclosure.
1. 1. Except as otherwise limited in this BAA, Business Associate may use Protected Health Information for the proper management and administration of the Business Associate or to carry out the legal responsibilities of the Business Associate.
2. 2. Except as otherwise limited in this BAA, Business Associate may disclose Protected Health Information for the proper management and administration of the Business Associate, provided that disclosures are Required By Law, or Business Associate obtains reasonable assurances from the person to whom the information is disclosed that it will remain confidential and used or further disclosed only as Required By Law or for the purpose for which it was disclosed to the person, and the person notifies the Business Associate of any instances of which it is aware in which the confidentiality of the information has been breached.
3. 3. Business Associate may use Protected Health Information to report violations of law to appropriate Federal and State authorities, consistent with Sec. 164.502(j)(1).
4. VI. Obligations of Covered Entity
30. A. Covered Entity shall notify Business Associate in writing of any limitation(s) in its notice of privacy practices of Covered Entity in accordance with 45 CFR 164.520, to the extent that such limitation may affect Business Associate's use or disclosure of Protected Health Information.
31. B. Covered Entity shall notify Business Associate in writing of any changes in, or revocation of, permission by Individual to use or disclose Protected Health Information, to the extent that such changes may affect Business Associate's use or disclosure of Protected Health Information
32. C. Covered Entity shall notify Business Associate in writing of any restriction to the use or disclosure of Protected Health Information that Covered Entity has agreed to in accordance with 45 CFR 164.522, to the extent that such restriction may affect Business Associate's use or disclosure of Protected Health Information.
33. D. Covered Entity shall not request Business Associate to use or disclose Protected Health Information in any manner that would not be permissible under the Privacy Rule if done by Covered Entity, except that Business Associate may use or disclose protected health information for management and administrative activities of Business Associate.
34. VII. Term and Termination 
35. A. Term.  The term of this BAA shall be effective as of the Effective Date and shall terminate when all of the Protected Health Information 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 Protected Health Information, protections are extended to such information, in accordance with the termination provisions in this Section VII.
36. B. Termination for Cause.  Business Associate hereby authorizes termination of this BAA by Covered Entity, if Covered Entity determines that the Business Associate has violated a material term of this BAA.  Upon Covered Entity's knowledge of a material breach of this BAA by Business Associate, Covered Entity shall do one of the following:
1. 1. Provide an opportunity for Business Associate to cure the breach or end the violation and terminate this BAA and the Practice Support Agreement if Business Associate does not cure the breach or end the violation within thirty (30) days of actual receipt of written notice of such breach or violation;
2. 2. Immediately terminate this BAA and the Practice Support Agreement if Business Associate has breached a material term of this BAA and cure is not possible; or
3. 3. If neither termination nor cure are feasible, Covered Entity shall report the violation to the Secretary.
37. C. Effect of Termination.
1. 1. Except as provided in paragraph (2) of this Section VII.C, upon termination of this BAA, for any reason, Business Associate shall return or destroy all Protected Health Information received from Covered Entity, or created or received by Business Associate on behalf of Covered Entity.  Such destruction shall be in accordance with Section 1.K of the Practice Support Agreement.  This provision shall apply to Protected Health Information that is in the possession of subcontractors or agents of Business Associate. Business Associate shall retain no copies of the Protected Health Information.
2. 2. In the event that Business Associate determines that returning or destroying the Protected Health Information is infeasible, Business Associate shall provide to Covered Entity notification of the conditions that make return or destruction infeasible.  Upon determination that return or destruction of Protected Health Information is infeasible, Business Associate shall extend the protections of this BAA to such Protected Health Information and limit further uses and disclosures of such Protected Health Information to those purposes that make the return or destruction infeasible, for so long as Business Associate maintains such Protected Health Information.
38. D. This Section VII shall not limit the right of Covered Entity or Business Associate to terminate their relationship pursuant to the Practice Support Agreement.
39. VIII. Miscellaneous 
40. A. Regulatory References.  A reference in this BAA to a section in the Privacy Rule, the Security Rule or the HITECH Act means the section as in effect or as amended.
41. B. Amendment.  Covered Entity and Business Associate agree to take such action as is necessary to amend this BAA from time to time for Covered Entity to comply with the requirements of the Privacy Rule, the Security Rule and the Health Insurance Portability and Accountability Act of 1996, Pub. L. No. 104-191 and of the HITECH Act of 2009.
42. C. Survival.  The respective rights and obligations of Business Associate under Section VII.C of this BAA shall survive the termination of this BAA.
43. D. Interpretation.  Any ambiguity in this BAA shall be resolved to permit Covered Entity to comply with the Privacy Rule, the Security Rule and the HITECH Act. 
44. E. Other.  This BAA shall be subject to all provisions of the Practice Support Agreement.  To the extent this BAA might be inconsistent with any provision of the Practice Support Agreement of the Proprietary Information Agreement, this BAA shall control.

PROPRIETARY INFORMATION AGREEMENT

This Proprietary Information Agreement ("PIA") is made and entered into by and between My Private Practice, Inc. a California corporation and you, and is made effective as of the date of electronic acceptance.  This Agreement sets forth the general terms and conditions of your use of this website (this “Site”) and the products and services (collectively, the “Services”) found at this Site, and is in addition to (not in lieu of) any specific terms and conditions that apply to the particular Services you purchase or access through this Site.

Your electronic acceptance of this Agreement signifies that you have read, understand, acknowledge and agree to be bound by this Agreement.

The terms “we”, “us”, “our” or “Company” shall refer to My Private Practice, Inc.  The terms “you”, “your”, “User” or “Practitioner” shall refer to any individual or entity who accepts this Agreement.  Nothing in this Agreement shall be deemed to confer any third-party rights or benefits.

My Private Practice Inc., in its sole and absolute discretion, may change or modify this Agreement, and the corporate policies and/or agreements which are incorporated herein, at any time, and such changes or modifications shall be effective immediately upon the earlier of (i) our email notification to you advising you of such changes or modifications or (ii) your electronic acceptance of this Agreement after such changes or modifications have been made to this Agreement as indicated by the “Last Revised” date at the top of this page.

RECITALS

1. A. Company and Practitioner entered into a Practice Support Agreement also as of the Effective Date, pursuant to which Company provides for Practitioner's non-exclusive use a Licensed Program and Company's Server.  All italicized terms herein shall have the meaning given them in the Practice Support Agreement.

1. B. This PIA is the Proprietary Information Agreement referred to in Section 4 of the Practice Support Agreement.

NOW, THEREFORE, to induce Company to enter into the Practice Support Agreement and for other good and valuable consideration, the receipt and sufficiency of which Practitioner hereby acknowledges, the parties agree as follows:

1. 1. Proprietary Information.  For the purpose of this PIA, "Proprietary Information" shall include all information that is designated by Company orally, in writing or by conduct, as confidential or proprietary, or that reasonably would be considered proprietary or confidential to Company's business, including but not limited to information about the Licensed Program, support documentation related to the Licensed Program, the provisions of the Practice Support Agreement, investors, confidential customer lists, suppliers, marketing and technical plans, plans for future products, ideas, proprietary techniques, and other trade secrets of Company.  Notwithstanding the foregoing, "Proprietary Information" shall not include information which (i) is publicly known at the time of its disclosure; (ii) is lawfully received by Practitioner from a third party who is not subject to any confidentiality agreement with Company; (iii) is published or otherwise made known to the public by Company; or (iv) was generated independently by Practitioner prior to the Effective Date as evidenced by written proof.

1. 2. No Disclosure, Use or Circumvention.  Practitioner shall not disclose any Proprietary Information to any third parties and shall not use any Proprietary Information in its own or any affiliated business, without the prior written consent of Company, and then only to the extent specified in such consent.  Such consent may be granted or withheld at the sole discretion of Company.  Practitioner shall not contact any suppliers, customers, employees, affiliates or associates of Company to circumvent Company or the purposes of this PIA.

1. 3. Maintenance of Confidentiality.  Practitioner shall take all steps necessary or appropriate to maintain the strict confidentiality of the Proprietary Information and to assure compliance with this PIA.

1. 4. Return of Proprietary Information.  Practitioner shall, promptly upon the request of Company, return all notes, records, files, documents, copies of the Licensed Program or any parts of it, support documentation related to the Licensed Program, and other media, including without limitation magnetic or electronic (and all copies and reproductions of any of the foregoing), in Practitioner's possession or control which contain or pertain to the Proprietary Information.

1. 5. Waiver of Claims About Practitioner Provided Information.

1. A. It is expressly contemplated by the parties to this PIA that any information provided, given or made available to Company by Practitioner may be used by Company without any license, fee, charge or obligation of any sort whatsoever, unless otherwise expressly stated in advance in writing.  It is the express intent of the parties to protect Company from any later claim by Practitioner of any right or claim to compensation for such information.  Any compensation for any such information or claim shall be payable only to the extent specifically provided for in advance in writing.

1. B. It is specifically understood that, absent this assurance, Company would not discuss or make available the Proprietary Information to Practitioner, formally or informally, in connection with any project or other relationship involving the parties to this PIA.

1. 6. Third Party Beneficiaries.  It is expressly understood that Company may operate through or be affiliated with one or more entities and that any such entity may be a beneficiary of this PIA.

1. 7. Miscellaneous. 

1. O. Amendment. This PIA may be amended only by a writing that specifically refers to this PIA and expressly states that it constitutes an amendment and only if such writing has been signed by all parties hereto.  
2. P. Complete Agreement. This PIA supersedes all prior and contemporaneous oral or written agreements between the parties concerning the subject matter hereof, except for the Practice Support Agreement and the Business Associate Agreement referred to in Section 3.B of the Practice Support Agreement.  Should there be any disagreement between the Business Associate Agreement and either of the other two, the Business Associate Agreement shall control.  Should there be any disagreement between this PIA and the Practice Support Agreement, this PIA shall control.
3. Q. Equitable Remedy. If Practitioner should default in any obligation hereunder, Practitioner acknowledges that Company may be irreparably damaged and that it would be extremely difficult and impractical to measure such damage.  Accordingly, Practitioner acknowledges that Company, in addition to any other available rights or remedies, shall be entitled to specific performance, injunctive relief, and any other equitable remedy and that Company shall be relieved of any obligation to post bond in such a proceeding.  Practitioner waives the defense that a remedy at law or damages is adequate.
4. R. Governing Law. This PIA shall be governed by the laws of the State of California.  
5. S. Interpretation.  The section and other headings in this PIA are for convenience only and are not a substantive part of this PIA.  Where necessary to carry out the intentions of this PIA, all words used herein in the singular shall extend to and include the plural and vice versa, and all words used in any gender shall extend to and include all genders. Neither this PIA nor any uncertainty or ambiguity in it shall be construed or resolved against any party whether under any rules of construction or otherwise. 
6. T. Legal Counsel. Each party warrants and represents that it knows this PIA may materially affect the party's rights and that the party has been represented by separate legal counsel or has had adequate time to retain legal counsel but has knowingly decided not to obtain such counsel.  
7. U. Notice.  Any and all notices or other communications related to this PIA shall be given in writing by personal delivery or by United States Postal Service ("USPS") certified mail with return receipt requested, Express Mail or Priority Mail.  Notice by mail shall be sent to a party at the address appearing in the party's signature block (or such other address as the party designates pursuant to notice given in accordance with this provision).  Notice shall be effective on receipt.  
8. V. Successors and Assigns. This PIA shall be binding on any successor in interest to a party.  Practitioner shall not assign, sublicense, or otherwise transfer this PIA or any rights under it without the prior written consent of Company. 
9. W. Survival of Provisions.  Upon expiration or termination of this PIA, no party shall have any further obligation hereunder except for (i) obligations due and owing which arose prior to the date of expiration or termination and (ii) obligations, promises, or covenants contained herein which expressly extend beyond the term of this PIA. 
10. X. Waiver. Waiver of any default or breach of this PIA shall not be construed as a waiver of any subsequent default or breach.  Any delay in exercising any right or remedy hereunder shall not be deemed to be a waiver of such right or remedy.

If you have any questions about this Agreement, please contact us by email or regular mail at the following address:

My Private Practice, Inc.

3201 Wilshire Blvd, Suite 201

Santa Monica, California 90403

Email: info@myprivatepractice.net