Healthe Habits for Living Network Provider Practice Agreement
IMPORTANT NOTE TO PROVIDER — Read Carefully
Please read this Agreement carefully, as its provisions govern your access to and use of the Healthē Habits for Living Program and Network (HHL Program and Network). Upon completion of this form and receipt of payment, you and your organization that you represent agree to the terms of this Agreement. If you do not agree to be bound by the terms of this Agreement, you are not authorized to access or use the HHL Program and Network.
This Agreement is made by and between the individual who accepts the terms of this Agreement by completing this form and receipt of payment (YOU), the organization that employs or is otherwise represented by YOU (You and such organization being referred to herein collectively as “Purchaser”) and JHB MANAGEMENT, and is effective as of the date you complete this form with receipt of payment . You represent and warrant that You have the authority to bind the company that employs You or that You represent to the terms of this Agreement.
Purchaser and JHB MANAGEMENT agree as follows:
1. Overview
1. General. JHB MANAGEMENT develops, markets and offers access to software, educational resources, training programs and message boards that enhance Purchaser’s ability to implement and meet the requirements of the HHL Program. This Agreement states the terms and conditions upon with Purchaser shall have access to and use, and JHB MANAGEMENT shall make available to Purchaser, the HHL Program.
2. Definitions
a. HHL PROGRAM (Healthē Habits for Living Program) means the tools and content developed or provided by JHB MANAGEMENT that is accessible through a secure portal on the Healthē Habits for Living website, which includes without limitation all components, resources, technical materials, message board, forms, reports, or any other electronic materials and updates.
b. HHL NETWORK (Healthē Habits for Living Network) means all individuals and facilities that have purchased the Healthē Habits for Living program. Any “purchaser” is eligible to be listed on the Healthē Habits for Living website as advertisement to locate a facility providing this program.
c. “Ancillary Materials” means any tools, documentation, resources, technical materials, discussion boards or other information made available to Purchaser by JHB Management related to the HHL Program’s use. These Ancillary Materials may be the creation and intellectual property of JHB MANAGEMENT or publicly available materials from other sources/organizations. All rights reserved for copyrighted materials.
d. “Intellectual Property Rights” means the worldwide intangible legal rights or interests in (i) any idea, design, concept, method, process, technique, apparatus, invention, discovery or improvement, including any patents, patent applications, trade secrets and know-how; (ii) any work of authorship, including any copyrights, industrial designs, registration or moral rights recognized by law; (iii) any trademarks, trade names, trade dress, pending registrations and associated goodwill; and (iv) any other proprietary technology or material in which similar rights exist.
e. “Updates” means all corrections, modifications, improvements, enhancements, revisions, upgrades and new releases of the HHL Program designated by JHB MANAGEMENT as Updates. Updates do not include JHB MANAGEMENT products or releases for which JHB MANAGEMENT charges separately. All Updates shall become part of the HHL Program.
2. License
HHL Program License. Subject to terms and conditions of this Agreement, JHB MANAGEMENT grants to Purchaser a non-exclusive, limited license to access and use the Healthē Habits for Living Program and any applicable ancillary materials during the Term solely for the Purchaser’s own internal business purposes (the “License”) at Purchaser’s business location, identified as (the “Location”) only. Should purchaser wish to open additional locations, the Purchaser agrees to enter into separate Licensing Agreements for each additional location at a 25% discounted rate.
2. HHL Program Access. Purchaser may access and use the HHL Program via the HHL website and portal only through a secure Internet connection (i.e. a browser with encryption enabled). JHB MANAGEMENT will provide the Purchaser with a personal log-on identification code and confidential password for such access and use. Purchaser acknowledges and agrees that actual access to the HHL Program may be delayed if Purchaser ‘s technical environment does not conform to requirements. Purchaser acknowledges and agrees to monitor the use of its log-on identification and password and acknowledges that JHB MANAGEMENT is not responsible for any access to Purchaser’s data using the log-on identification and password.
3. License restrictions: Purchaser will not have the right to grant access to the HHL Program, or any part thereof, to any third party. Unless otherwise set forth in a written agreement between JHB MANAGEMENT and Purchaser, Purchaser’s access will be limited to information and portions of databases relating solely to Purchaser. Further, Purchaser shall not (a) permit any parent, subsidiary, affiliated entity or other third party to access, view or use the HHL Program without a prior written agreement approved by JHB MANAGEMENT; (b) use the HHL Program to provide hosting, service bureau, time sharing, outsourcing, facility management, training or other services to third parties, or sell, lease transfer, distribute, license or sublicense the HHL Program to third parties; (c) publish the results of any HHL Program performance benchmarks to any third party without JHB MANAGEMENT’S prior written consent; (d) use the HHL Program for any unlawful purpose and/or in any manner not in accordance with this Agreement; (e) reverse engineer the software that powers the HHL Program in any manner, including without limitation, through decompilation or disassembly; (f) edit, modify or create derivative works based on the HHL Program, it being understood that JHB Management shall have all right, title or interest in and to all edits, modifications or derivative works based on the HHL Program.
4. Ownership of HHL Program. JHB MANAGEMENT will retain all right, title and interest in the HHL Program, Ancillary Materials and any Updates or subsequent revisions thereof and any other intellectual property of JHB MANAGEMENT provided to Purchaser, including but not limited to any Intellectual Property Rights now owned or that may be owned in the future by JHB MANAGEMENT. Purchaser agrees to comply with any and all standards promulgated by JHB MANAGEMENT related to protection of JHB MANAGEMENT Intellectual Property Rights. All rights not expressly granted hereunder are reserved by JHB MANAGEMENT.
5. Updates. During the Term, from time to time, JHB MANAGEMENT may implement Updates to the HHL Program and the Ancillary Materials at its sole discretion.
6. User Generated Content. JHB MANAGEMENT does not ordinarily monitor, filter, censor, edit or regulate information and content provided by third parties on the HHL Program site, including any such information provided in chat rooms, listservs, bulletin boards or other interactive areas, but reserves the right to do so in its sole discretion. JHB MANAGEMENT neither endorses nor is it liable for the contents, accuracy or reliability of such information and content.
• Purchaser will not upload or otherwise provide infringing, defamatory, obscene, pornographic, threatening, abusive, illegal or otherwise improper content.
• Purchaser will not upload viruses or harmful components.
• Purchaser will not use the HHL Program site to further any unlawful purpose or to violate the rights of any party.
• Purchaser will not upload or otherwise provide content with a commercial purpose or attempt to solicit funds or advertise goods and services.
• Purchaser will not utilize the HHL Program site to engage in communications leading or related to an agreement in restraint of trade, to exchange specific information relating to Purchaser’s prices, profits, or costs, or in any other manner to limit competition or restrain trade in violation of state and federal antitrust laws.
JHB MANAGEMENT will assist law-enforcement officials in investigating illegal activity or violations of this Agreement. Any user who believes a violation of this code of conduct has occurred is encouraged to report it to the JHB MANAGEMENT web editor – jill@healthehabitsforliving.com
3. Purchaser Representations and Obligations
1. Authority and Performance. Purchaser represents and warrants that it has the legal right and authority to enter into this agreement and perform its obligations hereunder, and that the performance of its obligations and use of the HHL Program and any Services will not cause a breach of any agreements between Purchaser and any third parties.
2. Technical Environment. Purchaser agrees to provide an environment for appropriate access to and use of the HHL Program. Purchaser acknowledges that JHB MANAGEMENT is not responsible for obtaining or selling to Purchaser the hardware, internet access or any stand-alone third-party software that may be required to meet such requirements, or for providing maintenance or support thereof.
3. Access and Use. Purchaser shall only access and use the HHL Program for its intended purpose. Purchaser is solely responsible for maintaining the confidentiality and security of the password used by Purchaser to access the HHL Program. JHB MANAGEMENT is not liable for any harm related to theft of Purchaser’s password, disclosure of the password or Purchaser’s authorization of another person or entity to use the password to access and use Purchaser’s data in the HHL Program. If, at any time, the Purchaser suspects that any Purchaser password has been inadvertently or intentionally compromised, Purchaser shall promptly change the password. Purchaser shall notify JHB MANAGEMENT immediately of any compromise of any Purchaser password, use of a password that is not in accordance with the terms of this Agreement and any breach of confidentiality.
4. Publicity. Purchaser agrees that JHB MANAGEMENT may, from time to time, disclose the name of the Purchaser, orally or in print, for promotional and public relations purposes related to the HHL Program.
5. Purchaser Publicity. JHB MANAGEMENT allows and Purchaser agrees to use the appropriate logo (“Healthē Habits for Living Network Member”) in its materials to identify its participation in the HHL Program. All use of such logos is subject to JHB MANAGEMENT approval. Purchaser agrees to modify or cease any use of the logos as requested by JHB MANAGEMENT. A color and black and white version of the appropriate logo will be made available to Purchaser.
4. TERM AND TERMINATION
1. Term. The term of this Agreement will commence on the Effective Date.
2. Termination for Material Breach. Either party may terminate this Agreement if the other party commits a material breach or default (including nonpayment of fees) and fails to remedy such breach or default within thirty (30) days after notice thereof. Notwithstanding the foregoing, either party may terminate this Agreement immediately in the event of a breach by the other party of its obligations under Articles 5.1 or 6.
3. Termination for Convenience. Either party may terminate this Agreement, with or without cause, at any time without penalty upon (30) days’ prior written notice to the other party. The notice shall set forth the effective date of such termination. If Purchaser terminates this Agreement pursuant to this Section, no refund shall be due to Purchaser.
4. Effect of Termination or Expiration. Upon any termination or expiration of this Agreement, (i) the Services and License shall terminate and (ii) all payment obligations of Purchaser to JHB MANAGEMENT under this Agreement incurred through the date of termination or expiration will immediately become due.
5. FEES AND PAYMENT TERMS
1. LICENSE FEE. The fee payable by Purchaser for the License shall be a single, one time payment. Purchaser’s access to the HHL Program is subject to payment of the fee. Upon acceptance of this Agreement, Purchaser shall pay JHB MANAGEMENT the one time subscription fee for the indefinite term.
2. Payment Terms. All payments shall be made in U.S. dollars and shall be non-refundable unless licensee submits a written request for a refund prior to receiving access to the HHL Network portal.
6. CONFIDENTIAL INFORMATION AND SECURITY
1. Confidentiality of Protected Health Information. Each party acknowledges that the privacy regulations promulgated under the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) requires Purchaser and JHB MANAGEMENT to enter into certain contractual arrangements in order to comply with HIPAA.
2. JHB MANAGEMENT Proprietary Information. Subject to Section 6.3, Purchaser will regard any information provided to it by JHB MANAGEMENT pursuant to this Agreement as proprietary or confidential (“Proprietary Information”) and will protect the confidentiality of the Proprietary Information in the same manner as it protects its own valuable proprietary information and, at a minimum, with reasonable care. Purchaser expressly agrees that the HHL Program, Ancillary Materials, Updates and the terms and conditions of this Agreement are the Proprietary Information of JHB MANAGEMENT. Purchaser will not remove or destroy any proprietary markings or restrictive legends reasonably placed upon or contained within the HHL Program or the Ancillary Materials. Each party agrees, for itself and its agents and employees, to protect the confidentiality of any proprietary information of third parties in its possession and accepts responsibility for any breach of this Agreement by its agents or employees.
3. Exceptions. Information will not be deemed Proprietary Information hereunder to the extent such information: (i) is known to Purchaser prior to receipt from JHB MANAGEMENT directly or indirectly, other than from a source having an obligation of confidentiality to JHB MANAGEMENT, (ii) becomes known (independently of disclosure by JHB MANAGEMENT) to Purchaser directly or indirectly from a source other than one having an obligation of confidentiality to JHB MANAGEMENT, (iii) becomes publicly known or otherwise publicly available, except through a breach of this Agreement by Purchaser, or (iv) is independently developed by Purchaser. Purchaser may disclose Proprietary Information pursuant to the requirements of applicable law, legal process or government regulation, provided that it gives JHB MANAGEMENT reasonable prior written notice to permit the disclosing party to contest such disclosure, and such disclosure is otherwise limited to the required disclosure.
7. DISCLAIMERS; LIMITATIONS; INDEMNIFICATION
1. Independent Medical Judgment. Purchaser acknowledges and agrees that while the HHL Program is intended to be a resource for use by the healthcare practitioners, the HHL Program and all content and functionality therein is not a substitute for the professional judgment of healthcare practitioners in diagnosing and treating patients. In providing access to the HHL Program hereunder, JHB MANAGEMENT is not giving medical advice or providing medical or diagnosis services through the HHL Program. Purchaser is solely responsible for making all medical, diagnostic or prescription decisions and for verifying the availability or accuracy of any data to the extent it would verify paper records.
2. Disclaimers. THE JHB MANAGEMENT SITE , CONTENT, ANY LICENSED THIRD PARTY CONTENT, THE ANCILLARY MATERIALS AND THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND.
JHB MANAGEMENT, TO THE FULLEST EXTENT PERMITTED BY LAW, DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED INCLUDING THE WARRANTY OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE AND NON-INFRINGEMENT. JHB MANAGEMENT DOES NOT AND CANNOT GUARANTEE THAT THE SERVICES, JHB MANAGEMENT SITE, HHL PROGRAM, OR ANY CONTENT/DATA IN THE SYSTEM WILL BE FREE FROM (A) ANY COMPUTER PROGRAM FILE CAPABLE OF ATTACHING TO OTHER FILES AND REPLICATING ITSELF REPEATEDLY WITHOUT AUTHORIZATION, OR (B) ANY OTHER TYPE OF UNEXPECTED OR MALICIOUS PROGRAMS OR MOBILE CODES, INCLUDING, BUT NOT LIMITED TO, COMPUTER VIRUSES, TROJANS AND WORMS (COLLECTIVELY, A “VIRUS”). PURCHASER’S SOLE REMEDY FOR ANY ERROR OR FAILURE IS TO CEASE USE OF THE HHL PROGRAM. PURCHASER ACKNOWLEDGES THAT JHB MANAGEMENT IS NOT RESPONSIBLE FOR: (I) THE ACCURACY OF DATA IN THE HHL PROGRAM, (II) ANY DATA SUBMITTED BY ANY USER OF THE HHL PROGRAM, (III) THE PERFORMANCE OF PURCHASER’S EQUIPMENT USED TO ACCESS THE HHL PROGRAM, (IV) ANY VIRUS, HOWEVER ACQUIRED OR TRANSMITTED, OR (V) ANY ACTS OR OMISSIONS OF PURCHASER OR ITS REPRESENTATIVES OR SERVICE PROVIDERS.
3. Actions Caused by and/or Under the Control of Third Parties. Purchaser acknowledges and agrees that Purchaser’s access to the Internet and the Services are each provided by one or more third parties. As such, JHB MANAGEMENT does not and cannot control the flow of data to or from its hosting environment and other portions of the Internet, nor does it control the availability or functionality of Purchaser’s access to the HHL Program. JHB MANAGEMENT DOES NOT WARRANT THAT OPERATION OF THE HHL PROGRAM OR PURCHASER’S ACCESS THERETO WILL BE CONTINUOUS, ERROR-FREE OR UNINTERRUPTED. JHB MANAGEMENT IS NOT RESPONSIBLE FOR PROVIDING ANY SUPPORT OR MAINTENANCE RELATING TO PURCHASER’S EQUIPMENT UTILIZED TO ACCESS THE HHL PROGRAM.
4. Limitation of Liability. IN NO EVENT SHALL JHB MANAGEMENT, ITS SUPPLIERS, ITS SERVICE PROVIDERS, ITS LICENSORS OR ANY THIRD PARTIES MENTIONED ON OR PROVIDING SERVICES OR PRODUCTS THROUGH THE HHL PROGRAM BE LIABLE FOR (A) ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, INCIDENTAL AND CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION) RESULTING FROM THE USE OR INABILITY TO USE THE HHL PROGRAM, ANY VIRUS, THE ANCILLARY MATERIALS OR ANY CONTENT PROVIDED ON OR THROUGH THE FOREGOING WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT JHB MANAGEMENT, INC IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; (B) PERSONAL INJURY, INCLUDING, WITHOUT LIMITATION, DEATH CAUSED BY PURCHASER’S USE OR MISUSE OF THE HHL PROGRAM CONTENT, THE ANCILLARY MATERIALS, OR THE SERVICES; OR (C) THE COST OF PROCURING SUBSTITUTE GOODS, SERVICES, OR TECHNOLOGY.
5. Limitations. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO PURCHASER. HOWEVER, TO THE EXTENT PERMITTED BY LAW, ALL OF THE LIMITATIONS AND EXCLUSIONS SET FORTH HEREIN SHALL APPLY TO PURCHASER.
6. Indemnification. Purchaser shall defend, indemnify and hold harmless JHB MANAGEMENT and its affiliates from and against any and all costs, liabilities, expenses or fees related to third-party claims arising from Purchaser’s use of the HHL Program, except to the extent caused by the willful misconduct of JHB MANAGEMENT.
7. Proceedings. No proceeding, regardless of form, arising out of the subject matter of this Agreement may be brought by Purchaser more than one (1) year after the claim becomes know to Purchaser.
8. Basis of the Bargain. Purchaser acknowledges and agrees that JHB MANAGEMENT would not have provided access to the HHL Program under the terms of this Agreement absent the allocation of risks specified in this Article 7, and that such allocation forms an essential basis of the bargain between the parties. The parties agree that the limitations and exclusions of liability and disclaimers specified in this Agreement will survive and apply even if found to have failed of their essential purpose.
8. GENERAL
1. Entire Agreement. This Agreement, including any Exhibits, constitutes the entire agreement between the parties with respect to its subject matter and supersedes all other prior agreements. Any item or service furnished by JHB MANAGEMENT in connection with this Agreement, even if not specifically identified herein, will be covered by this Agreement, unless specifically covered by a separate written agreement between the parties.
2. Notices. All notices will be in writing and given by personal delivery, by certified mail, return receipt requested, by commercial overnight courier, by facsimile with confirmed receipt, or by email to (a) JHB MANAGEMENT, at 392 N 1490 E, Heber City, UT, 84032 (b) the address that JHB MANAGEMENT has on file for Purchaser; or (c) to such other address as either party may specify by written notice to the other. Notice will be deemed given on (i) the date of personal delivery; (ii) the fifth business day after mailing; (iii) the next business day after delivery to an overnight courier (unless the return receipt or the courier’s records evidence a later delivery; (iv) the date of transmission, if by facsimile with confirmed receipt; or (v) the date of the transmission, if by email, unless within twenty-four (24) hours after transmission, the sender receives notification that the email was not received.
3. Assignment Delegation. JHB MANAGEMENT may assign this Agreement, or any of its interests herein, without the prior written consent of Purchaser. Purchaser may not assign this Agreement, or any of its interests herein, without the prior written consent of JHB MANAGEMENT, and any attempted assignment without such consent will be void. This Agreement shall apply to and bind the successors and permitted assigns of the parties. JHB MANAGEMENT may delegate the performance of certain services to third parties, including wholly-owned subsidiaries, provided that JHB MANAGEMENT controls the delivery of such services and remains responsible to Purchaser for the delivery of such services.
4. Survival. All provisions regarding protection of Proprietary Information, De-identified Data, Intellectual Property Rights, payment, indemnification, warranty, liability and limits thereon will survive termination of this Agreement.
5. Governing Law. This Agreement will be governed by the laws of the State of UTAH, exclusive of its rules governing choice of law and conflict of laws. The exclusive forum for any disputes arising out of or relating to this Agreement shall be the state and federal courts in the City of HEBER CITY, COUNTY OF WASATCH and State of UTAH.
6. Waiver or Modification. Any waiver, amendment, supplement or modification of this Agreement will not be effective unless set forth in writing and signed by an authorized representative of each party. Any such waivers, amendments, supplements and modification will be deemed a part of this Agreement as if incorporated herein. The failure of either party to exercise any of its rights under this Agreement will not be deemed a waiver or forfeiture of such rights.
7. Export Restrictions. This Agreement is expressly made subject to any laws, regulations, orders, or other restrictions on the export from the United States of American of the HHL Program or information relating thereto that may be imposed from time to time by the government of the United States of America. Purchaser shall not export the HHL Program, the Ancillary Materials, or information relating to the foregoing without consent from JHB MANAGEMENT, and any such export must comply with all such laws, regulations, order or other restrictions.
8. Force Majeure. Neither party hereto will be liable for any failure or delay in performance of its obligations hereunder by reason of events or circumstances such as acts of God, war, fire, flood, shortage or failure of suppliers, or other similar event.
9. Independent Business Relationship. Purchaser and JHB MANAGEMENT are independent entities and are not and shall not be construed as joint venturers, partners, employer/employee, or agents of the other, and neither shall have the power to bind or obligate the other, except as set forth in this Agreement.
10. Severability. The invalidity or unenforceability of one or more provisions of this Agreement will not affect the validity or enforceability of any other provisions hereof, and this Agreement will be construed in all respects as if such invalid or unenforceable provision(s) were omitted.