BREAKTHROUGH PHYSICAL THERAPY MARKETING, LLC MASTER TERMS & CONDITIONS
We made updates to our Master Terms & Conditions. These updated terms are effective on November 4, 2020. Please be aware that, by continuing to use our services after the effective date, you are accepting these updated terms.
Last modified: November 4, 2020
1. Breakthrough Physical Therapy Marketing, LLC (“Breakthrough”, “we”, “us”, “our”), provides its programs, products and services (the “Programs”) indicated on one or more order forms that are signed by You and Breakthrough (each an “Order Form”) subject to your compliance with the following terms and conditions (“Terms”).
3. By completing an Order Form and participating in the Programs, You affirm that you are able and legally competent to agree to and comply with these Terms. If you do not agree to these Terms or if you are not legally competent to agree to them, then you may not participate in the Programs. If the Order Form indicates that You are purchasing Programs in the name or on behalf of an organization or company, by signing, You certify to us that you have the legal authority to bind any such organization or company to these Terms.
4. Please note that these Terms contain provisions that govern the resolution of claims between Breakthrough and You. Please see the Legal Disputes section for complete details. Privacy & Security.
7. BREAKTHROUGH’S OBLIGATIONS. Subject Breakthrough agrees to use commercially reasonable efforts to make the applicable Program(s) available, excluding any scheduled downtime for maintenance and any downtime due to causes outside of Breakthrough’s reasonable control.
8. YOUR OBLIGATIONS. You acknowledge that it is Your responsibility to assure that Your use of the Program, including any collection, use, disclosure or other processing of data that identifies or can be used to identify an individual patient, consumer or other person (“Personal Data”), is in full compliance with all federal, state, and local laws, rules, and regulations applicable to You and Your business and by extension, to Breakthrough, as applicable. Without limiting the forgoing, You represent and warrant that You will:
(a) be solely responsible for the accuracy, quality, reliability, and integrity of Personal Data collected, used, or disclosed to Breakthrough in relation to any Program;
(b) Comply with all laws, regulations and contractual obligations that apply to Personal Data, including making any required disclosures and obtaining any required authorizations from individuals or otherwise taking such actions as required to permit Breakthrough to lawfully create, receive, transmit or maintain the Personal Data;
(c) Maintain the security of Your users’ account credentials, assign unique log-in names and passwords to individual users, and take such other actions as required to prevent unauthorized access to or use of the Program; and
(d) Promptly notify Breakthrough of any suspected or actual breach of security of the Program, lost or stolen access credential or other security incident that creates potential risk to the security of the Program.
You further represent and warrant that You have the right to provide the Personal Data to us and by providing such Personal Data, we have the right to use such Materials to provide the Program(s) or as otherwise described in these Terms or the Order Form. Without limiting the generality of the foregoing, You represent and warrant that You have provided any required notices, obtained any necessary consents or permissions, or taken any other actions required under applicable law for Breakthrough to access, use or disclose any Personal Data You provide to Breakthrough or which Breakthrough creates, receives, transmits or maintains on Your behalf in connection with the Program(s), and for Breakthrough to use such Personal Data to send SMS text messages or other marketing communications on your behalf, and will at all times comply with laws applicable to the collection, use and processing of such information. The accuracy of any funnel or other deliverable provided to You under a Program is entirely driven by the information that You provide to Breakthrough. Breakthrough hereby disclaims any and all liability for any inaccuracies or ineffectiveness of the funnel or other deliverables provided under any Program.
You shall not: (a) access or use any Program Data after termination of the applicable Program; (b) copy, modify, or create derivative works or improvements of any Program or Program Data; (c) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available any Program or Program Data to any person or entity; (d) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of any Program or Breakthrough property, in whole or in part; (e) bypass or breach any security device or protection used by any Program; (f) input, upload, transmit, or otherwise provide to or through the Program or Program Data, any information or materials that are unlawful or injurious, or contain, transmit, or activate any virus, malware, or other harmful code; (g) damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner any Program or Program Data, or Breakthrough’s provision of services to any third party, in whole or in part; (h) remove, delete, alter, or obscure any trademarks, copyright, trademark, patent, or other intellectual property or proprietary rights notices from any Program or Program Data, including any copy thereof; (i) access or use a Program or Program Data in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property rights or other right of any third party or that violates any applicable Law; (j) access or use the Program and Program Datta for purposes of competitive analysis of any Program or any other Breakthrough products or services, the development, provision, or use of a competing software service or product or any other purpose that is to Breakthrough’s detriment or commercial disadvantage; or (k) access or use any Program or Program Data in, or in association with, the design, construction, maintenance, or operation of any hazardous environments, systems, or applications, any safety response systems or other safety-critical applications, or any other use or application in which the use or failure of the Program could lead to personal injury or severe physical or property damage; or (l) otherwise access or use any Program or Program Data beyond the scope of the authorization granted under these Terms; or (m) use the Program for any self-promotional activities.
You agree to submit in a timely and accurate manner the necessary videos and practice-specific information, in compliance with Breakthrough’s technical requirements and other specifications. It is understood that Breakthrough requires this information to begin work on creating and completing Your automated funnel, its Facebook advertisements and landing pages. You also agrees to run at least the required number of workshops each month as indicated on the applicable Order Form, to fully bucket workshop registrant-leads after each workshop as instructed by their Customer Success Coach, to maintain an up-to-date email list, to complete the monthly Metric Submission to Breakthrough, to select at least the required number of Monthly Email Campaigns set forth on the applicable Order Form, and to attend required Program calls as well as the required number of one-on-one coaching calls.
In exchange for Your participation in the Program(s) You agree not to: (i) make any disparaging or derogatory remarks regarding Breakthrough; or (ii) to the extent You participate in Breakthrough’s Inside Circle Facebook Group, form, join, become employed by, be engaged in, or provide any advice or services to, any enterprise (including, without limitation, any corporation, partnership, proprietorship, or other venture) which competes with Breakthrough during the term of any Program and for a period of two years thereafter.
What you own: You will at all times retain ownership of the data You own or control prior to your participation in the Program (“Your Data”). As a result of Breakthrough’s performance under this Agreement, Breakthrough may make enhancements, modifications, and/or improvements to Your Data and deliver the same to You. You have an unrestricted right to use enhancements, modifications, and/or improvements to Your Data in connection with Your business even after termination of the Program.
What we own: Breakthrough at all times retains all right, title, and interest in and to: (a) the Program(s); (b) all associated content, materials and information, including intellectual property rights in and to the foregoing; and (c) all leads, contacts, data, and customers that result from Your use of a Program ((a)-(c), collectively referred to as the “Program Data”). During the applicable term of each Program, Breakthrough grants You a limited, non-exclusive right to access and use the Program Data for Your internal business purposes at the practice location indicated on the applicable Order Form only. You hereby assign to Breakthrough all right, title and interest in and to any feedback, recommendations, or suggestions that You may provide to Breakthrough during Your use of a Program. You acknowledge and agree that Breakthrough may use the results of any Program in its marketing and promotional materials without compensation, acknowledgement or notice to You. All Program Data shall remain the confidential information of Breakthrough and You may not disclose any Program Data to any third party.
10. MARKETING OPPORTUNITIES. You acknowledge and agree that certain Programs will incorporate local or national marketing, advertising, and promotional programs that are developed or established by Breakthrough. You agree to participate in such marketing, advertising and promotional programs as directed by Breakthrough or as otherwise incorporated into the applicable Program. You acknowledge that, unless we otherwise agree in writing, You are not entitled to any compensation in connection with such programs and that we are able to offer You the pricing set forth in the applicable Order Form based in part on Your agreement to participate in such programs.
11. FEES AND TERM. You agree to pay all fees set forth in each applicable Order Form from the credit card that you provide. The Greatest Promotion Ever (“GPE”) Funnel is an add-on to other condition funnels that we offer. The GPE Funnel is available at no charge to all of our Growth X customers who maintain and pay fees for at least two condition funnels. You must provide written notice to your Customer Success Coach to activate the GPE Funnel. If you use the GPE Funnel and then reduce your subscription to only one active condition funnel, you will be required to pay $600.00 USD per month to continue using the GPE Funnel and if you choose not to pay the $600.00 monthly fee, your access to the GPE Funnel will be terminated as of the date that you no longer maintain two active condition funnels. If you have only one active condition funnel and wish to add the GPE Funnel for $600.00 USD per month, you must provide written notice to your Customer Success Coach and execute an Order Form for the add-on. The GPE funnel will continue to be made available so long as your one condition funnel. Upon termination or expiration of your condition funnel, the GPE Funnel shall automatically terminate. If we are unable to process a payment, we will notify You and You will have five business days to notify us of an acceptable alternative payment method or a resolution of the issue with Your credit card on file. If we do not hear from You within that five business day period, we may suspend Your access to the applicable Program or terminate Your participation in the Program. Any declined payment that is not resolved within five business days after Breakthrough provides You with notice will be assessed an additional fee of $25 and late payments will also accrue interest at the lesser of: (a) one and one-half percent per month; and (b) the highest rate permitted by applicable law. Even if we suspend Your account for non-payment, You will remain responsible for all Program fees through the end of the term of the applicable Program. All fees You pay to us are non-refundable and we are not obligated to grant any requests for holds, refunds, or early cancellation of any Program. Quantities purchased cannot be decreased during the applicable Program term. Breakthrough reserves the right to adjust fees at any time and to turn over our account receivables over to a collection agency for any amounts that are more than 60 days past due. You are responsible for any collection, attorney fees, or other costs we incur in connection with collecting any unpaid fees. These Terms shall be effective upon the execution by You and Breakthrough of an Order Form and shall remain in effect until all Order Forms have been terminated. Notwithstanding the foregoing, Breakthrough may terminate any Program upon written notice to you: (a) immediately if You breach these Terms; or (b) upon 30 days written notice without cause.
13. CONFIDENTIAL INFORMATION. Confidential Information means all of Breakthrough’s non-public information and specifically includes but is not limited to, the products and services, business plans, financial information, pricing and sales data, marketing research, methods, protocols, manuals and training materials, ideas, concepts, designs, inventions (whether patentable or not), customer lists, distribution methods, computer programs, software, algorithms, business methods, trade secrets, know how, reports, discussions and negotiations under this Agreement or any other contract between You and Breakthrough. Breakthrough may provide You with certain Confidential Information to enable You to receive the full benefit of a particular product or service. You may use such Confidential Information solely in connection with Your use of the Program during the applicable Program term. In no event will You use or disclose any Confidential Information to or for the benefit of any third party. You agree that Confidential Information has been developed or obtained by Breakthrough’s investment of significant time, effort, and/or resources and that Breakthrough’s Confidential Information constitutes a valuable asset and provides significant commercial and business value to Breakthrough and You through participating in a Program. You agree to protect the Confidential Information by using the same degree of care as You use to protect Your own confidential information of a like nature (but no less than a reasonable degree of care) to prevent the unauthorized use, dissemination, disclosure or publication of such Confidential Information. If You become aware of any unauthorized access or disclosure of Confidential Information, You will promptly notify Breakthrough and reasonably cooperate with Breakthrough to minimize any adverse effects and further breach of Confidential Information.
14. DISCLAIMER. As part of the Program, Breakthrough may provide template messages, disclosures, model text messaging terms and conditions and privacy policies, ongoing educational information and other materials that are or may be legally required for your business. These materials are offered for informational and educational purposes only, and neither Breakthrough, nor any outside counsel it may work with, are providing you legal advice. By providing these materials, no party is creating an attorney-client relationship. You expressly represent and warrant that you will take no action in reliance on the information provided by Breakthrough, understand and agree that such services are expressly excluded from the scope of our indemnification obligations, and that neither Breakthrough nor its agents shall have any liability with respect to actions taken or not taken based on these materials. Breakthrough encourages you to seek the advice of an attorney for all relevant legal matters, including, to ensure that any mobile messaging campaigns are fully compliant with all applicable federal and state laws and regulations because you are solely responsible for the messages you send through Breakthrough’s text messaging services.
YOU AGREE THAT ANY USE OF THE PROGRAM(S) IS AT YOUR OWN RISK AND THAT THE PROGRAM DATA IS BEING PROVIDED “AS IS” AND “AS AVAILABLE”. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THESE TERMS OF THE APPLICABLE ORDER FORM AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, BREAKTHROUGH DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE PROGRAM AND PROGRAM DATA, INCLUDING WITHOUT LIMITATION ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, OR NON-INFRINGEMENT. BREAKTHROUGH DOES NOT WARRANT THAT THE PROGRAM DATA WILL BE ERROR FREE, FREE FROM ANY VIRUS, MALWARE, OR HARMFUL CODE, FREE FROM INTERRUPTIONS, WILL NOT INFRINGE THE INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY, OR ACCOMPLISH ANY PARTICULAR RESULT. YOU AGREE THAT BREAKTHROUGH IS NOT ACTING AS A PUBLIC RELATIONS MANAGER, BUSINESS MANAGER, PHYSICAL THERAPIST, OR AGENT IN PROVIDING THE PROGRAM.
Further, You agree that we have no obligation to procure or attempt to procure any business or sales for You or to introduce You to our full network of contacts, media partners or business partners. There is no guarantee that you will earn any money using the techniques and ideas in the Program(s). Earning potential depends entirely on you. Your level of success in attaining results depends on factors that You control, such as the time You devote to the Program as well as Your finances, knowledge and individual skills.
15. INDEMNIFICATION AND LIMITATION OF LIABILITY. You shall indemnify, defend and hold us harmless from and against any and all losses, damages, liabilities, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs or expenses (including reasonable attorneys’ fees) arising from or relating to your: (a) breach of these Terms; (b) infringement of any third party intellectual property; (c) negligence, willful misconduct, or violation of law; (d) your acts or omissions in connection with your use of the Program(s); and (e) our access, use or disclosure of the Materials.
NEITHER YOU NOR BREAKTHROUGH SHALL BE LIABLE FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES OR SPECIAL DAMAGES ARISING FROM OR RELATING TO THESE TERMS, THE PROGRAMS, THE ORDER FORM OR THE PROGRAM DATA (INCLUDING WITHOUT LIMITATION, DAMAGES RELATING TO LOSS OF DATA, REVENUE PROFITS, USE OR OTHER ECONOMIC ADVANTAGE), WHETHER OR NOT YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND WHETHER BASED UPON BREACH OF CONTRACT, WARRANTY, OR STATUTORY DUTY, NEGLIGENCE, STRICT LIABILITY OR OTHER TORT, PRINCIPLES OF INDEMNITY OR CONTRIBUTION, OR OTHERWISE.
IN NO EVENT SHALL BREAKTHROUGH’S TOTAL LIABILITY UNDER ANY PROGRAM AGREEMENT OR ORDER FORM EXCEED AN AMOUNT EQUAL TO THE FEES PAID BY YOU IN THE TWELVE (12) MONTH PERIOD PROCEEDING THE EVENT GIVING RISE TO SUCH LIABILITY.
16. LEGAL DISPUTES. YOU AND BREAKTHROUGH AGREE TO GIVE UP ANY RIGHTS TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY OR TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION WITH RESPECT TO A CLAIM. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT, SUCH AS ACCESS TO DISCOVERY, ALSO MAY BE UNAVAILABLE OR LIMITED IN ARBITRATION.
Any dispute between You and us arising from or relating to these Terms and their interpretation or the breach, termination or validity thereof, the relationships which result from these Terms, including disputes about the validity, scope or enforceability of this arbitration provision (collectively, “Covered Disputes”) will be settled by binding arbitration. Before initiating any arbitration, the initiating party will give the other party at least 60-days’ advanced written notice of its intent to file for arbitration. we will provide such notice by e-mail to Your e-mail address on file and You must provide such notice by e-mail to [email protected]
During such 60-day notice period, we both agree to work in good faith to settle amicably any Covered Disputes. Failing such amicable settlement and expiration of the notice period, either you or Breakthrough may initiate arbitration. The arbitrator will conduct any arbitration proceedings by telephone or videoconference unless in-person appearances are requested by you or us and approved by the arbitrator. Any in-person appearances will be held at a location mutually agreed upon by you and us, or, in the absence of such agreement, at a location determined by the arbitrator. The arbitrator will have the power to grant whatever relief would be available in court under law or in equity and any award of the arbitrator(s) will be final and binding on each of the parties and may be entered as a judgment in any court of competent jurisdiction. Arbitrator will apply applicable law and the provisions of these Terms and the failure to do so will be deemed an excess of arbitral authority and grounds for judicial review. Breakthrough and You agree that any Covered Dispute hereunder will be submitted to arbitration on an individual basis only. Neither Breakthrough nor You are entitled to arbitrate any Covered Dispute as a class, representative or private attorney action and the arbitrator(s) will have no authority to proceed on a class, representative or private attorney general basis. If any provision of the agreement to arbitrate in this section is found illegal or unenforceable, the remaining arbitration terms shall continue to be fully valid, binding, and enforceable (but in no case will there be a class, representative or private attorney general arbitration). These Terms and related transactions will be subject to and governed by the Federal Arbitration Act, 9 U.S.C. sec. 1-16 (FAA) and, where otherwise applicable, by the laws of the State of California.
17. MISCELLANEOUS. Should any provision of these Terms be found unenforceable, the remainder of these Terms shall remain in full force and effect. These Terms shall be governed by and construed in accordance with the laws of Delaware. You may not assign your rights or obligations under any Program without the prior written consent of Breakthrough. These Terms, the applicable Order Form and all documents expressly incorporated therein by reference constitute the entire agreement between the You and Breakthrough and supersedes any oral or written communications between us regarding Your participation in the Program(s). Unless otherwise specifically provided in an Order Form, in the event of a conflict between these Terms, an Order Form or any other written agreement or understanding between the parties, these Terms shall govern. You agree to communicate with us using electronic means, whether through the Breakthrough website or via email. For contractual purposes, You (i) consent to receive communications from Breakthrough in an electronic form; and (ii) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Breakthrough provides to You electronically satisfy any legal requirement that such communications would satisfy if it were in a writing.
Last modified: March 2020
Breakthrough Physical Therapy Marketing, LLC (“Breakthrough”) respects your privacy and is committed to protecting it through our compliance with this policy. This policy describes the types of information we may collect from you or that you may provide when you visit the Breakthrough University website (the “Website”) and our practices for collecting, using, maintaining, protecting, and disclosing that information.
This policy applies to information we collect:
- On the Website.
- In email, text, and other electronic messages between you and the Website or Breakthrough.
2. WHAT INFORMATION WE COLLECT
We collect several types of information from and about users of our Website, including the following types and categories of information:
- Identifiers such as your name, postal address, unique personal identifier, online identifier, Internet Protocol address, email address, telephone number or other similar identifiers.
- Other categories of information that may be defined as personal information under state or federal law.
- A persistent identifier (such as a “cookie,” device or processor serial number, or an IP address).
- Information about your business or practice, including location and number of employees.
- Information about how you use the Website, including browsing and search history and how you interact with ads or campaigns provided through the Website.
- Information about your computer or mobile device, including your physical location, browser and operating system type, and referring URLs.
- Inferences drawn from any of the information describe in this Section 2 to create a profile about you and your preferences.
- Credit card or debit card information for processing payments by our third party payment vendor.
3. HOW WE COLLECT THIS INFORMATION
We collect information from you when you provide it to us, such as by submitting information when making purchases or setting up an account, and automatically as you navigate through the Website. Information collected automatically may include usage details, IP addresses, and information collected through cookies, web beacons, and other tracking technologies.
As you navigate through and interact with our Website, we may use automatic data collection technologies to collect certain information about your equipment, browsing actions, and patterns, including:
- Details of your visits to our Website, including traffic data, location data, logs, and other communication data and the resources that you access and use on the Website.
- Information about your computer and internet connection, including your IP address, operating system, and browser type.
- We also may use these technologies to collect information about your online activities over time and across third-party websites or other online services (behavioral tracking).
- The information we collect automatically may include personal information and/or we may maintain it or associate this information with personal information we collect in other ways or receive from third parties. It helps us to improve our Website and to deliver a better and more personalized service, including by enabling us to: estimate our audience size and usage patterns; store information about your preferences, allowing us to customize our Website according to your individual interests; speed up your searches; recognize you when you return to our Website.
4. HOW WE USE YOUR INFORMATION
We use information that we collect about you or that you provide to us, including any personal information:
- To present our Website and its contents to you.
- To provide you with information, products, or services that you request from us.
- To fulfill any other purpose for which you provide it.
- To provide information to you about our products and services or those of our business partners.
- To carry out our obligations and enforce our rights arising from any contracts entered into between you and us.
- To notify you about changes to our Website or any products or services we offer or provide though it.
- To create aggregated anonymous data about the usage of the Website and to use this aggregated anonymous data for our own business purposes or to provide it to third service providers that provide services on our behalf.
- To process purchases you make through the Website.
5. DISCLOSURE OF YOUR INFORMATION
We may disclose aggregated information about our users, and information that does not identify any individual without restriction.
- To our subsidiaries and affiliates.
- To contractors, service providers, and other third parties we use to support our business. For example, your payment information will be provided to our third party payment processor to process purchases you make through the Website.
- To a buyer or other successor in the event of a merger, divestiture, restructuring, reorganization, dissolution, or other sale or transfer of some or all of Breakthrough’s assets.
- To third parties to market their products or services to you if you have consented to/not opted out of these disclosures.
- To fulfill the purpose for which you provide it.
- For any other purpose disclosed by us when you provide the information.
- For any other purpose with your consent.
We may also disclose your personal information:
- To comply with any court order, law, or legal process, including to respond to any government or regulatory request.
- If we believe disclosure is necessary or appropriate to protect the rights, property, or safety of Breakthrough’s, our customers, or others.
6. COMPLIANCE WITH THE CHILDREN’S ONLINE PRIVACY PROTECTION ACT (“COPPA”)
The Website is not designed or intended for children under the age of thirteen (a “Child”) and may not be used by a Child. Breakthrough will delete any information that Breakthrough suspects may relate to a Child.
7. COMPLIANCE WITH THE CALIFORNIA CONSUMER PRIVACY ACT (“CCPA”)
California residents have certain rights under the CCPA with respect to personal information that is collected, sold, and/or used for business purposes. In the last 12 months, Breakthrough may have collected those categories of information outlined in Section 2 from the various sources identified in Section 3. California residents have the following rights with respect to personal information collected by Breakthrough:
- Request for Information. You can also request a copy of your personal information and how it has been used and shared over the last 12 months directly from Breakthrough. In particular, you have the right to request: (1) categories of personal information that have been collected; (2) the categories of sources of this personal information; (3) the business or commercial purpose for collecting the personal information; (4) categories of third parties with whom Breakthrough shares personal information; and (5) specific pieces of personal information that Breakthrough has collected about you.
- Deletion of Information. Breakthrough users can request that Breakthrough delete your personal information on your behalf at any time.
- Nondiscrimination. Breakthrough will not discriminate against any user that exercises their rights under CCPA. However, certain aspects of the Website or Breakthrough’s products or services may depend on Breakthrough’s ability to collect and share your personal information. So, the nature and quality of services Breakthrough provides to you may depend on Breakthrough’s ability to collect and share this personal information.
- Requests for copies of personal information, or deletion of personal information, may be made using the contacts set forth below.
Breakthrough does not sell any personal information. In the last 12 months, Breakthrough may have collected and/or disclosed your personal information to enable Breakthrough to provide its products and services and run its business, including for the following business purposes:
- To detect security incidents and to protect the Breakthrough against malicious, deceptive, fraudulent, or illegal activity and prosecute those responsible.
- To troubleshoot, debug, or correct errors in the Website or Breakthrough’s products or services.
- For other short term or transient use where the personal information is not disclosed to a third party.
- To provide customer service, process analytics, and other similar services performed on behalf of Breakthrough.
- For Breakthrough’s own internal research and development purposes and to improve the quality, safety, and features Breakthrough’s products and services.
- To audit interactions between users and transactions through the Website, including interactions with ads or campaigns provided through the Website.
Business Associate Agreement
Last modified: June 22, 2020
Business Associate and the Company may each be referred to as a “Party” and may be collectively referred to as the “Parties.”
Covered Entity is a “covered entity” as defined at 45 C.F.R. § 160.103. Business Associate provides various marketing and other services to Covered Entity under one or more service agreements or other arrangements (“Service Agreements”) and in so doing may have access to certain protected health information (collectively, the “Relationship”).
The Parties acknowledge and agree that to the extent, and only to the extent, the Relationship requires Business Associate to receive, create, maintain, or transmit protected health information (as defined below) concerning patients of Covered Entity, and only with regard to the specific services that involve such PHI, Business Associate has obligations to protect such information in accordance with applicable provisions of the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) and the related Privacy and Security Standards, codified at 45 C.F.R., Parts 160 and 164, Subparts A, E, and C as amended from time to time (“Privacy Rules and Security Rules”).
This Agreement establishes Business Associate’s assurances and obligations that it will treat such PHI in accordance with provisions of HIPAA and the related Privacy and Security Rules that are applicable to business associates.
Unless otherwise defined or the context clearly suggests a different interpretation, terms and phrases used within this Agreement shall have the same meaning as those terms used or defined in HIPAA and the Privacy and Security Rules. The term “protected health information” or “PHI” shall have the same meaning set forth at 45 C.F.R. § 160.103 except limited to PHI that Business Associate receives from or creates, receives, transmits or maintains on behalf of Covered Entity.
NOW THEREFORE, in consideration of the mutual promises and covenants contained herein and the mutual benefits to be derived here from, and such other good and valuable consideration described herein,the sufficiency of which is hereby acknowledged, the Parties hereby agree as follows:
1. Business Associate’s Privileges and Obligations. During the term of this Agreement, Business Associate agrees that it will not use or disclose PHI received from, or created or received by Business Associate on behalf of, Company for any purpose that is not contemplated by the Relationship or this Agreement.
1.1 Permitted Uses and Disclosures. Business Associate will not use or further disclose the PHI in any manner that would violate the requirements of the Privacy and Security Rules if done by Covered Entity, except that:
1.1.1 Business Associate may use PHI for Business Associate’s proper management and administration of its responsibilities under the Service Agreements, or to carry out the legal responsibilities of Business Associate.
1.1.2 Business Associate may provide Data Aggregation services in accordance with HIPAA.
1.1.3. Business Associate may disclose PHI for Business Associate’s proper management and administration of its responsibilities, or to carry out the legal responsibilities of Business Associate, if:
(a) the disclosure is required or permitted by law; or
(b) Business Associate obtains reasonable assurances from the person to whom PHI is disclosed that (i) the PHI 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 (ii) the person will notify Business Associate of any instances of which it is aware that the confidentiality of the PHI has been breached.
1.2 Obligations. Business Associate agrees that, to the extent required by law based upon the specifics of the Relationship:
1.2.1 Business Associate will not use or further disclose PHI except as permitted or as required by this Agreement, the Services Agreement, or as required or permitted by law.
1.2.2 Business Associate will comply with applicable requirements of Subpart C of 45C.F.R. Part 164 with respect to electronic PHI and will implement reasonable and appropriate administrative, physical and technical safeguards designed to protect the confidentiality,integrity and availability of the electronic PHI;
1.2.3 Business Associate will comply with applicable requirements of Title XII, Subtitle D of the Health Information Technology for Economic and Clinical Health (“HITECH”) Act,codified at 42 U.S.C. §§ 17921-17954, which are applicable to business associates, and willcomply with all regulations issued by the Department of Health and Human Services (HHS)to implement these referenced statutes.
1.2.4 Business Associate will promptly report to Covered Entity any Security Incident or use or disclosure of PHI not allowed by this Agreement, of which Business Associate becomes aware. Business Associate shall take prompt corrective action to mitigate any harmful effect that is known to Business Associates of any unauthorized use or disclosure and to prevent a recurrence of any similar unauthorized use or disclosure. Notwithstanding the foregoing, Business Associate shall not be required to report any unsuccessful Security Incidents that are not reasonably considered by Business Associate to constitute an actual threat to an information system or to the security or confidentiality of PHI.
1.2.5 Business Associate will ensure that any subcontractors that create, receive, maintain,or transmit PHI on behalf of Business Associate in connection with the Relationship with Company agree to substantially similar restrictions and conditions that apply to Business Associate with respect to safeguarding Covered Entity’s PHI.
1.2.6 Upon written request from Covered Entity, Business Associate will give Covered Entity access to PHI maintained by Business Associate in a Designated Record Set as needed for Covered Entity to meet its requirements set forth at 45 C.F.R § 164.524.
1.2.7 Upon written request from Covered Entity, Business Associate will make or incorporate any amendment(s) to which Covered Entity has agreed, to PHI maintained by Business Associate in a Designated Record Set as needed for Covered Entity to comply with 45 C.F.R. § 164.526.
1.2.8 Business Associate will document and upon Covered Entity’s written request,Business Associate will provide Covered Entity with an accounting of Business Associate’s disclosures of PHI as required for Covered Entity to respond to an Individual’s request for an accounting of disclosures pursuant to 45 C.F.R. § 164.528.
1.2.9 Business Associate will make its internal practices, books, and records related to the use, security and disclosure of PHI available to the Secretary of the Department of Health and Human Services (“Secretary”) for the purpose of determining Covered Entity or Business Associate’s compliance with HIPAA and the Privacy and Security Rules.
1.2.10 Business Associate agrees to restrict its uses and disclosures of PHI to the minimum amount of information necessary to accomplish the purpose of the use or disclosure.
1.2.11 To the extent the Relationship includes an agreement between Business Associate and Covered Entity to delegate to the Business Associate one or more HIPAA obligations covered under Subpart E of 45 C.F.R. Part 164, Business Associate will comply with the requirements of such Subpart in the performance of that obligation.
1.3 Responsibilities of Covered Entity. With regard to the use and/or disclosure of the PHI by Business Associate, Covered Entity hereby agrees:
1.3.1 that the uses and disclosures of the PHI by Business Associate pursuant to this Agreement are, at the time of execution and throughout the term of this Agreement will be,consistent with the form of notice of privacy practices (the “Notice”) that Covered Entity provides to Individuals pursuant to 45 C.F.R. § 164.520; and Covered Entity shall provide Business Associate with copies of all Notices it uses during the term of this Agreement;
1.3.2 to promptly notify Business Associate of any changes to such Notice that may impact Business Associate’s use or disclosure of PHI;
1.3.3 to notify Business Associate, in writing and in a timely manner of any arrangements permitted or required of Covered Entity under 45 C.F.R. Parts 160 and 164 that may impact in any manner the use and/or disclosure of the PHI by Business Associate under this Agreement including, but not limited to, restrictions on use and/or disclosure of the PHI as provided for in 45 C.F.R. § 164.522 agreed to by Covered Entity, and to hold Business Associate harmless from the financial impact of any such agreement by Company;
1.3.4 to obtain any consent or authorization that may be required under HIPAA or other federal or state law prior to furnishing the PHI to Business Associate and to immediately notify Business Associate of any revocation of any authorizations that may impact Business Associate’s use or disclosure of PHI; and1.3.5 to only request from or disclose to Business Associate the minimum PHI necessary to accomplish the intended purpose of the request or disclosure.
2. Amendment. The Parties acknowledge that HIPAA and the Privacy Rules and Security Rules may be amended from time to time. If required in response to an amendment to HIPAA and the Privacy Rules and Security Rules, Business Associate and Covered Entity agree to take such action as is necessary to amend this Agreement to conform it to any such amendments to the Privacy Rules and Security Rules or to conform it to any other privacy/security law that may apply to the Relationship.
3.1 Term. With the exception of those terms that specifically extend beyond the termination of this Agreement, this Agreement shall expire or terminate upon the expiration or termination of the Relationship.
3.2 Effect of Termination.
3.2.1 Except as provided in Section 3.2.2 below, upon the termination or expiration of this Agreement, for any reason, Business Associate shall return or destroy all PHI and not retain any copies thereof. This Section 3.2.1 also applies to PHI that is in the possession of Business Associate’s subcontractors or agents.
3.2.2 If Business Associate reasonably determines that returning or destroying the PHI is infeasible, Business Associate shall continue to extend its obligations under this Agreement to such PHI and limit further uses and disclosures of it to those purposes that make the PHI’s return or destruction infeasible. In addition, Business Associate shall have the right to retain copies of PHI as required to comply with legal obligations, including HIPAA.
4. Breach Notification. Business Associate agrees and understands that Business Associate must promptly identify and respond to a Breach of Unsecured PHI (as defined at 45 C.F.R. § 164.402) and Business Associate will promptly notify Covered Entity of a Breach of Unsecured PHI as required by 45C.F.R. § 164.410. In the event of such a Breach of Unsecured PHI, Business Associate shall, in consultation with Covered Entity, mitigate, to the extent practicable, any harmful effect of such Breach that is known to Business Associate and cooperate with Covered Entity as reasonably necessary for Covered Entity to meet its obligations under 45 C.F.R. Part 164, Subpart D. Covered Entity shall be responsible for any notifications required by HIPAA or applicable state law.
5. Independent Contractor. Business Associate acknowledges that the services it performs pursuant tothe Relationship are performed in the capacity of an independent contractor and nothing within thisAgreement is intended, nor shall they be construed in any manner, to create an agency relationshipbetween Company and Business Associate.
6. Interpretation. This Agreement shall be interpreted as broadly as necessary to facilitate Parties’ compliance with HIPAA, the Privacy Rules and Security Rules and applicable state privacy laws. In the event of a conflict between a provision of this Agreement and the Service Agreements, this Agreement shall control to the extent necessary for the Parties to comply with HIPAA. A reference in this Agreement to a section or term in the Privacy Rules and Security Rules means the section or term that is in effect at the time of the relevant conduct.