PLEASE READ THESE TERMS AND CONDITIONS OF USE CAREFULLY BEFORE USING OUR SERVICES OR OUR SITE.
The MedTx Services (as defined below) are provided to you subject to the following MedTx Terms and Conditions of Use, which may be updated by MedTx LLC (“we”, “us”, or “MedTx”) from time to time with or without notice to you. You will always be able to view the most current version of the MedTx Terms and Conditions of Use by clicking on a link on the bottom of any MedTx page.
By using the MedTx Services, you agree to these Terms and Conditions of Use. If you do not agree to all of these MedTx Terms and Conditions of Use, do not use the MedTx Services.
“MedTx Services” means the MedTx website (the “Site”) and “Member Profile” services. The MedTx Services are intended for healthcare professionals and are for clinical use.
If you are a patient and are accessing this site, you should understand that the information presented is intended primarily for the use of health care professionals in the provision of care, or for the joint use of health care professionals and patients in health care settings. You should seek assistance from a health care professional when interpreting these materials and applying them to your own health care, or in other individual cases.
MedTx Services Do Not Provide Medical Advice
The contents of the MedTx Site, such as text, graphics, images, and are for informational purposes only. The Content is not intended to be a substitute for professional medical advice, diagnosis, or treatment. Always seek the advice of your physician or other qualified health provider with any questions you may have regarding a medical condition.
MedTx does not recommend or endorse any specific tests, physicians, products, procedures, opinions, or other information that may be mentioned on the Site. Reliance on any information provided by MedTx visitors to the Site is solely at your own risk.
Clinical Decision Support System Disclaimer
MedTx clinical practice guidelines (“guidelines”), related MedTx decision-trees and algorithms (collectively referred to as “CDSS”), are not fixed protocols that must be followed, but are intended for health care professionals and providers to consider. While CDSS identifies and describes generally recommended courses of intervention, it is not intended to substitute for the advice of a physician or other knowledgeable health care professional or provider. Individual patients may require different treatments from those specified in the CDSS. The CDSS is not entirely inclusive or exclusive of all methods of reasonable care that can obtain/produce the same results. Although CDSS can be developed to take into account variations in clinical settings, resources, or common patient characteristics, it cannot address the unique needs of each patient nor the combination of resources available to a particular community or health care professional or provider. Deviations from CDSS may be justified by individual circumstances. Thus, CDSS must be applied based on individual patient needs using professional judgment.
Business Associate Agreement
The MedTx Services are designed to be compliant with HIPAA (as defined below).
You and MedTx agree to the terms of the business associate agreement Exhibit A to these Terms and Conditions (the “Business Associate Agreement”). Any protected health information, as defined in the Health Insurance Portability and Accountability Act, as amended from time to time (“HIPAA”), that is included in the charts that you create or edit through MedTx is subject to the Business Associate Agreement. To the extent there is a conflict between the express terms of these Terms and Conditions and the Business Associate Agreement, the terms of the Business Associate Agreement shall control.
The MedTx Services are intended as a resource to health care providers. If you decide to store data made available by MedTx Services in your own records, you are responsible for storing such data in your own system. You may print data from MedTx Services at any time by selecting and using the print function on your browser.
If your MedTx account is terminated, we may permanently delete your data from our systems as set forth in our Business Associate Agreement. We have no obligation to return data to you after termination of your MedTx account. If your MedTx account is terminated, data that you have saved may remain in the MedTx account.
You represent and warrant that you and your use of the MedTx Services will, at all times comply with all laws directly or indirectly applicable to you that may now or hereafter govern the gathering, use, transmission, processing, receipt, reporting, disclosure, maintenance, and storage of any patient information, including, without limitation laws regarding designated record sets. You are, at all times during the term of these Terms and Conditions and thereafter, solely responsible for obtaining and maintaining all patient consents and all other legally necessary consents or permissions required or advisable to disclose, process, retrieve, transmit, and view the patient information you transmit, store, or receive in connection with the MedTx Services.
WE CANNOT AND DO NOT ASSUME ANY RESPONSIBILITY FOR YOUR USE OR MISUSE OF PATIENT INFORMATION OR OTHER INFORMATION TRANSMITTED, MONITORED, STORED OR RECEIVED USING THE MEDTX SERVICES AND WE CANNOT AND DO NOT ASSUME ANY RESPONSIBILITY FOR YOUR USE OR MISUSE OF PATIENT INFORMATION OR OTHER INFORMATION TRANSMITTED, MONITORED, STORED OR RECEIVED USING THE MEDTX SERVICES.
THE MEDTX SERVICES ARE PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, WE EXPRESSLY DISCLAIM ANY WARRANTIES, EXPRESS IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WE MAKE NO WARRANTY THAT THE MEDTX SERVICES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. WE MAKE NO WARRANTY AS TO THE ACCURACY, TIMELINESS, COMPLETENESS OR RELIABILITY OF ANY CONTENT OBTAINED THROUGH THE MEDTX SERVICES. NO INFORMATION PROVIDED THROUGH THE MEDTX SERVICES OR BY US IN ORAL OR WRITTEN FORM WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. YOUR RELIANCE UPON THE CONTENT OBTAINED OR USED BY YOU THROUGH THE MEDTX SERVICES IS SOLELY AT YOUR OWN RISK. WE DO NOT PROVIDE MEDICAL ADVICE AND WE DO NOT RECOMMEND OR ENDORSE ANY SPECIFIC PRODUCTS, PRODUCT USERS, THERAPIES, TESTS, PHYSICIANS, HEALTHCARE PROFESSIONS OR OPINIONS.
The use of the MedTx Site and the Content is at your own risk.
When using the MedTx Site, information will be transmitted over a medium that may be beyond the control and jurisdiction of MedTx and its suppliers. Accordingly, MedTx assumes no liability for or relating to the delay, failure, interruption, or corruption of any data or other information transmitted in connection with use of the MedTx Site.
In no event shall MedTx, its licensors, its suppliers, or any third parties mentioned on the MedTx Site be liable for any damages (including, without limitation, incidental and consequential damages, personal injury/wrongful death, lost profits, or damages resulting from lost data or business interruption) resulting from the use of or inability to use the MedTx Site or the Content, whether based on warranty, contract, tort, or any other legal theory, and whether or not MedTx, its licensors, its suppliers, or any third parties mentioned on the MedTx Site are advised of the possibility of such damages.
MedTx, its licensors, its suppliers, or any third parties mentioned on the MedTx Site are not liable for any personal injury, including death, caused by your use or misuse of the Site, Services or Content. Any claims arising in connection with your use of the Site, any Content, or the Services must be brought within one (1) year of the date of the event giving rise to such action occurred. Remedies under these Terms and Conditions are exclusive and are limited to those expressly provided for in these Terms and Conditions.
You agree to defend, indemnify, and hold MedTx, its officers, directors, employees, agents, licensors, and suppliers, harmless from and against any claims, actions or demands, liabilities and settlements including without limitation, reasonable legal and accounting fees, resulting from, or alleged to result from, your violation of these Terms and Conditions.
You expressly agree that exclusive jurisdiction for any dispute with MedTx, or in any way relating to your use of the MedTx, resides in the courts of the State of California and you further agree and expressly consent to the exercise of personal jurisdiction in the courts of the State of California in connection with any such dispute including any claim involving MedTx or its affiliates, subsidiaries, employees, contractors, officers, directors, providers, and content providers.
These Terms and Conditions are governed by the internal substantive laws of the State of California, without respect to its conflict of laws principles. If any provision of these Terms and Conditions is found to be invalid by any court having competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of these Terms and Conditions, which shall remain in full force and effect. No waiver of any of these Terms and Conditions shall be deemed a further or continuing waiver of such term or condition or any other term or condition.
You acknowledge and agree that the MedTx Services and the information and software presented to you through the MedTx Services or used in connection with the MedTx Services contain proprietary and confidential information that is protected under U.S. and international intellectual property laws, including copyright, trademarks, service marks, patents or other proprietary rights and laws. You agree not to sell, rewrite, modify, reproduce, redistribute, create derivative works, or rent any information presented to you through the MedTx Services, in whole or in part.
We reserve all of our other rights not granted in these Terms and Conditions of Use. You agree not to access the MedTx Services by any means other than through the interface that is provided by us for use in accessing the MedTx Services.
These Terms and Conditions constitute the entire agreement between you and MedTx with respect to the use of the MedTx Site, Services and Content.
Notice and Takedown Procedures; and Copyright Agent
If you believe any materials accessible on or from the Site infringe your copyright, you may request removal of those materials (or access thereto) from this web site by contacting MedTx’s copyright agent (identified below) and providing the following information:
1. Identification of the copyrighted work that you believe to be infringed. Please describe the work, and where possible include a copy or the location (e.g., URL) of an authorized version of the work.
2. Identification of the material that you believe to be infringing and its location. Please describe the material, and provide us with its URL or any other pertinent information that will allow us to locate the material.
3. Your name, address, telephone number and (if available) e-mail address.
4. A statement that you have a good faith belief that the complained of use of the materials is not authorized by the copyright owner, its agent, or the law.
5. A statement that the information that you have supplied is accurate, and indicating that “under penalty of perjury,” you are the copyright owner or are authorized to act on the copyright owner’s behalf.
6. A signature or the electronic equivalent from the copyright holder or authorized representative.
MedTx’s agent for copyright issues relating to this web site is as follows:
Attn: Copyright Officer
Exhibit A: Business Associate Agreement
WHEREAS, Business Associate now and in the future may have relationships with Covered Entity in which Business Associate creates, receives, maintains or transmits Protected Health Information (as defined below) for or on behalf of Covered Entity through the performance of Services to Covered Entity.
WHEREAS, Business Associate and Covered Entity (each a “Party” and collectively the “Parties”) desire to meet their obligations, to the extent applicable, under the Standards for Privacy of Individually Identifiable Health Information (the “Privacy Rule”) and the Health Insurance Reform: Security Standards (the “Security Rule”) published by the U.S. Department of Health and Human Services (“HHS”) at 45 C.F.R. parts 160 and 164 under the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”); the Health Information Technology for Economic and Clinical Health Act (“HITECH”) and implementing regulations.
WHEREAS, the Parties desire to set forth the terms and conditions pursuant to which Protected Health Information received from, or created, received, maintained or transmitted by the Business Associate on behalf of, the Covered Entity, will be used and disclosed. NOW THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:
TERMS AND CONDITIONS
1.1 Unless otherwise specified in this Agreement, all capitalized terms used in this Agreement not otherwise defined shall have the meanings established for purposes of HIPAA and HITECH, as each is amended from time to time.
1.2 “Breach” shall mean the acquisition, access, use or disclosure of Protected Health Information in a manner not permitted by the Privacy Rule that compromises the security or privacy of the Protected Health Information as defined, and subject to the exceptions set forth, in 45 C.F.R. 164.402.
1.3 “Electronic Protected Health Information” shall mean Protected Health Information, as defined in Section 1.5, that is transmitted or maintained in electronic media.
1.4 “HITECH” shall mean Subtitle D of the Health Information Technology for Economic and Clinical Health Act provisions of the American Recovery and Reinvestment Act of 2009, 42 U.S.C. §§17921-17954, and any and all references in this Agreement to sections of HITECH shall be deemed to include all associated existing and future implementing regulations, when and as each is effective.
1.5 “Protected Health Information” shall mean Protected Health Information, as defined in 45 C.F.R. § 160.103, and is limited to the Protected Health Information received from, or created, received, maintained, or transmitted on behalf of, Covered Entity by Business Associate pursuant to performance of the Services.
1.6 “Privacy Rule” shall mean the federal privacy regulations issued pursuant to the Health Insurance Portability and Accountability Act of 1996, as amended from time to time, codified at 45 C.F.R. Parts 160 and 164 (Subparts A & E).
1.7 “Security Rule” shall mean the federal security regulations issued pursuant to the Health Insurance Portability and Accountability Act of 1996, as amended from time to time, codified at 45 C.F.R. Parts 160 and 164 (Subparts A & C).
2. PERMITTED USES AND DISCLOSURES OF PROTECTED HEALTH INFORMATION
2.3. Business Activities of the Business Associate. Unless otherwise limited herein, the Business Associate may, consistent with 45 C.F.R. § 164.504(e)(4), use and disclose the Protected Health Information in its possession for its proper management and administration and to fulfill any present or future legal responsibilities of the Business Associate, provided that (i) the disclosures are Required by Law; or (ii) any third party to which Business Associate discloses Protected Health Information for those purposes provides reasonable assurances that the information 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 third party, and the third party promptly will notify Business Associate of any instances of which it becomes aware in which the confidentiality of the information has been breached.
3. RESPONSIBILITIES OF THE PARTIES
3.1. Responsibilities of the Business Associate with Respect to Protected Health Information. With regard to its use and/or disclosure of Protected Health Information, Business Associate agrees to:
a. not use or further disclose Protected Health Information other than as necessary to provide the Services, as permitted or required by this Agreement, and in compliance with each applicable requirement of 45 C.F.R. § 164.504(e) or as otherwise Required by Law; provided that, to the extent Business Associate is to carry out Covered Entity’s obligations under the Privacy Rule, Business Associate will comply with the requirements of the Privacy Rule that apply to Covered Entity in the performance of those obligations;
b. implement and use appropriate administrative, physical, and technical safeguards and, as of September 23, 2017, comply with the applicable requirements of the Security Rule with respect to Electronic Protected Health Information, to prevent use or disclosure of Protected Health Information other than as provided for by this Agreement;
c. without unreasonable delay, report to the Covered Entity: (i) any use and/or disclosure of the Protected Health Information of which Business Associate becomes aware that is not permitted or required by this Agreement, in accordance with 45 C.F.R. § 164.504(e)(2)(ii)(C); and/or (ii) any Security Incident of which Business Associate becomes aware in accordance with 45 C.F.R. § 164.314(a)(2)(C);
d. without unreasonable delay, and in any event no later than sixty (60) calendar days after Discovery, Business Associate shall notify Covered Entity of any Breach of Unsecured Protected Health Information. The notification shall include, to the extent possible and subsequently as the information becomes available, the information required by 45 C.F.R. § 164.410;
e. in accordance with 45 C.F.R. § 164.502(e)(1)(ii) and 45 C.F.R. § 164.308(b)(2), ensure that any subcontractors that create, receive, maintain, or transmit Protected Health Information on behalf of Business Associate agree, in writing, to the same restrictions and conditions on the use and/or disclosure of Protected Health Information that apply to the Business Associate, including complying with the applicable Security Rule requirements with respect to Electronic Protected Health Information;
f. make available its internal practices, books and records relating to the use and/or disclosure of Protected Health Information to the Secretary of HHS for purposes of determining the Covered Entity’s compliance with the Privacy Rule;
g. document and within thirty (30) days after receiving a written request from Covered Entity, make available information necessary for Covered Entity to make an accounting of disclosures of an Individual’s Protected Health Information, in accordance with 45 C.F.R. § 164.528 and, as of the date compliance is required by final regulations, 42 U.S.C. § 17935(c);
h. within fifteen (15) days of receiving a written request from Covered Entity, make available (in accordance with the requirements of 45 C.F.R. § 164.524) Protected Health Information necessary for Covered Entity to respond to Individuals’ requests for access to Protected Health Information about them, including, providing or sending a copy to a designated third party and providing or sending a copy in electronic format, to the extent that the Protected Health Information in Business Associate’s possession constitutes a Designated Record Set;
i. to the extent that the Protected Health Information in Business Associate’s possession constitutes a Designated Record Set, make available, within thirty (30) days after a written request by Covered Entity, Protected Health Information for amendment and incorporate any amendments to the Protected Health Information as directed by Covered Entity, all in accordance with 45 C.F.R. § 164.526;
3.2 Responsibilities of the Covered Entity with Respect to Protected Health Information.
a. With regard to the use and/or disclosure of Protected Health Information by the Business Associate, the Covered Entity agrees: (i) to obtain any consent, authorization or permission that may be required by the Privacy Rule or any other applicable federal, state or local laws and/or regulations prior to furnishing Business Associate the Protected Health Information pertaining to an Individual; and (ii) that it will not furnish Business Associate Protected Health Information that is subject to any arrangements permitted or required of the Covered Entity, including but not limited to, arrangements agreed to by Covered Entity under 45 C.F.R. § 164.522 that may impact in any manner the use and/or disclosure of Protected Health Information by the Business Associate under this Agreement and the Service Agreement(s).
b. Covered Entity represents and warrants that its notice of privacy practices permits Covered Entity to use and disclose Protected Health Information in the manner that Business Associate is authorized to use and disclose Protected Health Information under this Agreement.
4. TERM AND TERMINATION
4.1. Term. Unless otherwise specified in this Agreement, each term and condition of this Agreement shall become effective on the Effective Date. This Agreement shall continue in effect unless terminated as provided in this Section 4, provided, that certain provisions and requirements of this Agreement shall survive the expiration or termination of this Agreement in accordance with Section 5.4 herein.
4.2. Termination. If either Party knows of a pattern of activity or practice of the other Party that constitutes a material breach or violation of this Agreement then the non-breaching Party shall provide written notice of the breach or violation to the other Party that specifies the nature of the breach or violation. The breaching Party must cure the breach or end the violation on or before thirty (30) days after receipt of the written notice. In the absence of a cure reasonably satisfactory to the non-breaching Party within the specified timeframe, or in the event the breach is reasonably incapable of cure, then the non-breaching Party may terminate this Agreement.
4.3 Automatic Termination. This Agreement will automatically terminate with respect to any Business Associate without any further action of the Parties upon the termination of the Services.
4.4 Effect of Termination or Expiration. Within sixty (60) days after the expiration or termination for any reason of this Agreement, Business Associate shall return or destroy all Protected Health Information, if feasible to do so, including all Protected Health Information in possession of Business Associate’s subcontractors. In the event that Business Associate determines that return or destruction of the Protected Health Information is not feasible, Business Associate shall notify Covered Entity in writing and may retain the Protected Health Information subject to this Section 4.4. Under any circumstances, Business Associate shall extend any and all protections, limitations and restrictions contained in this Agreement to Business Associate’s use and/or disclosure of any Protected Health Information retained after the expiration or termination of this Agreement, and shall limit any further uses and/or disclosures solely to the purposes that make return or destruction of the Protected Health Information infeasible.
5.1. Entire Agreement. This Agreement, and all attachments, schedules and exhibits hereto, together with any applicable Services Agreement(s), constitutes the entire agreement and understanding between the Parties with respect to the subject matter hereof and supersedes any prior or contemporaneous written or oral memoranda, negotiations, arrangements, contracts or understandings of any nature or kind between the Parties with respect to the subject matter hereof.
5.2. Change of Law. Covered Entity shall notify Business Associate within ninety (90) days of any amendment to any provision of HIPAA or its implementing regulations, and/or HITECH or its implementing regulations, which materially alters either Party’s or the Parties’ obligations under this Agreement. The Parties agree to negotiate in good faith mutually acceptable and appropriate amendment(s) to this Agreement to give effect to such revised obligations; provided, however, that if the Parties are unable to agree on mutually acceptable amendment(s) within ninety (90) days of the relevant change of law, either Party may terminate this Agreement consistent with Sections 4.3 and 4.4.
5.3. Construction of Terms. The terms of this Agreement to the extent they are unclear shall be construed to allow for compliance by Covered Entity and Business Associate with HIPAA and HITECH.
5.4. Survival. Sections 1, 4.4, 5.3, 5.8, 5.11, 5.12, 6 and this Section 5.4, and any other provisions of this Agreement that by their terms are intended to survive, shall survive the termination of this Agreement.
5.5. Amendment; Waiver. This Agreement may not be modified, nor shall any provision hereof be waived or amended, except in a writing duly signed by authorized representatives of the Parties. A waiver with respect to one event shall not be construed as continuing, or as a bar to or waiver of any right or remedy as to subsequent events.
5.6. Notices. Any notices to be given hereunder to a Party shall be made via U.S. Mail or express courier to such Party’s address given above, and/or via facsimile to the facsimile telephone numbers listed above. Each Party may change its address and that of its representative for notice by the giving of notice thereof in the manner herein above provided.
5.7. Counterparts; Facsimiles. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original and all of which will be one and the same document. Facsimile copies hereof shall be deemed to be originals.
5.8. Disputes. If any controversy, dispute or claim arises between the Parties with respect to this Agreement, the Parties shall make good faith efforts to resolve such matters informally.
5.9 Effective Date. The Effective Date of this Agreement shall be the last date on which both Parties have executed the Agreement.
5.10 Binding Agreement; New Parties; Agency. This Agreement shall be binding upon the Parties and their successors and permitted assigns.
5.11 No Third Party Beneficiaries. Nothing in this Agreement shall confer upon any person other than the Parties and their respective successors or assigns, any rights, remedies, obligations, or liabilities whatsoever.
5.12 Contradictory Terms. Any other provision of the Service Agreement(s) that is directly contradictory to one or more terms of this Agreement (“Contradictory Term”) shall be superseded by the terms of this Agreement to the extent and only to the extent of the contradiction, only for the purpose of Covered Entity’s compliance with HIPAA and HITECH, and only to the extent reasonably impossible to comply with both the Contradictory Term and the terms of this Agreement.
5.13 Independent Contractor. Business Associate and Covered Entity are and shall remain independent contractors throughout the term. Nothing in this Agreement shall be construed to constitute Business Associate and Covered Entity as partners, joint venturers, agents or anything other than independent contractors.
6. LIMITATION OF LIABILITY
NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES OF ANY KIND OR NATURE, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES.