1. Introduction.

Welcome to http://physician.centerformedicalweightloss.com. CMWLPhysician.com is a media property of Be-Thin, Inc. d/b/a The Center for Medical Weight Loss (also referred to as "CMWL" or the "Company") and is located online at http://physician.centerformedicalweightloss.com (also referred to as the "Web Site" or "CMWLPhysician.com"). These terms of use ("TOU") constitute a binding agreement - and the only agreement - between CMWL and you governing your use of the Web Site. By visiting the Web Site, you agree to be bound by all of the terms and conditions of the TOU, whether you are a "Visitor" (which means you are just browsing the Web Site) or a "Registered User" (which means you have registered with CMWLPhysician.com).

If you do not agree to these TOU, please do not register for or enter the Web Site. The Company may also modify the TOU at any time, without notice. Any modifications will be posted on this page, so we suggest you return to this page on a regular basis to view the TOU. Your continued use of the Web Site after any modification will mean you agree to the TOU as modified. If you do not agree to a modification, you should stop visiting the Web Site immediately.

We at CMWL take these terms of use seriously. If we believe you have breached the TOU, we may, without notice, suspend or terminate your ability to access the CMWL Web Site and/or any other service, specific content, digital products, products, courses or events, provided to you by CMWL.

 

2. Registered Users.

Visitors to the Web Site may register their identifying information and become "Registered Users." As a Registered User, you have your own account consisting of access to content, tools and other services reserved solely for Registered Users.

Registered Users receive a unique screen name and password from the Company. You are responsible for maintaining the confidentiality of your password and account and are fully responsible for all activities that occur under your password or account. You may change your password in the Account Management section of the website, or by contacting CMWL at privacy@cmwl.com and requesting such change. CMWL will then use commercially reasonable efforts to timely deliver to you a new username and/or password, as applicable. You agree to immediately notify CMWL of any unauthorized use of your password or account or any other breach of security.

CMWL cannot and will not be liable for any loss or damage arising from your failure to comply with this section.

By registering at the Web Site, you agree to provide true, accurate, current and complete information about yourself and your CMWL Practice. If any of your information changes, you agree to update your information as soon as possible. If CMWL suspects that your registration information is not complete, current, or accurate, or that you have otherwise violated these TOU, your account may be subject to suspension or termination, we may delete anything you have posted, including but not limited to information about yourself, and you may be barred from using the Web Site.

 

3. Privacy Policy

Your use of the Web Site is subject to our Privacy Policy. To view the CMWL Privacy Policy, please visit http://physician.centerformedicalweightloss.com/privacy

 

4. Reliance on Medical, Legal, Financial, Investment and Other Information

The Web Site may present resources for the purpose of informing, sharing, and creating a community among CMWL Visitors and Registered Users; CMWL's intent is not to provide exhaustive information or advice on a particular topic. You should not rely on information provided by the Web Site to suggest an authoritative course of action for an individual with medical concerns. The information contained here should not replace a consultation with a qualified expert in the field, such as a physician, health care provider, or therapist.

 

5. Other Parties and Web Sites

From time to time, CMWL may make available to you certain services offered by third parties or pages of the Web Site may include links to other parties' Web Sites. Those third party services and Web Sites are not governed by CMWL's TOU but may be governed by other terms of use. Also, CMWL does not review all the content of these external Web Sites and is not responsible for the quality of information on any of the external Web Sites or any link contained in the external Web Sites. These links may lead unintentionally to sites containing information that some people may find inappropriate or offensive.

 

6. Copyright

CMWL is the owner of the Web Site as a whole, and of any individual content on the Web Site that is provided by CMWL staff members, or contributors who provide work under contract with CMWL. All CMWL content is protected under the copyright and intellectual property laws of the United States and other countries. The Web Site may also include works that are the property of others, such as individual contributors or experts; these works, too, are protected by copyright and other intellectual property laws. You may display and, unless otherwise noted, download and print out portions of the Web Site content solely for your own personal, non-commercial use. Any redistribution, retransmission, or publication of any copyrighted material is strictly prohibited without the express written consent of the copyright owner. You agree not to change or delete any proprietary notices from materials downloaded from the Web Site. You may not, incorporate the information, content, or other material on the Web Site in any database, compilation, archive or cache. You may not modify, copy, distribute, re-publish, transmit, display, perform, reproduce, publish, reuse, resell, license, create derivative works from, transfer, or sell any information, content, material, software, products or services obtained from this Web Site, except as specifically noted above. Notwithstanding the foregoing, Registered Users that have entered into a Practice Support & Licensing Agreement and/or a Patient Lead Generation & Marketing Agreement with the Company may download certain materials from the Web Site for their commercial use pursuant to the terms of their applicable agreements with the Company.

Except as specifically authorized by CMWL, Inc., you may not deep-link to this Web Site for any purpose or access this Web Site with any robot, spider, web crawler, extraction software, or any other automated process or device to scrape, copy, or monitor any portion of this Web Site or any information, content, or material on this Web Site. CMWL reserves all of its statutory and common law rights against any person or entity who violates this paragraph. You may not link or frame to any pages of this Web Site or any content contained therein, whether in whole or in part.

 

7. Patient Data; Non-Personal Aggregated Activity Data.

Patient Data.

The Web Site offers one or more features whereby Registered Users may upload information regarding their patients to the Web Site including, without limitation, email addresses (the "Patient Data") to facilitate CMWL's provisions of products and services to such patients. By becoming a Registered User and agreeing to these TOU, you agree that you shall not upload any Patient Data to the Website unless you have obtained from the applicable patient permission to do so that complies with applicable law. At minimum, you shall obtain from any patient, prior to uploading any of his or her Patient Data to the Web Site, his or her consent to receive email communication from CMWL from time to time related to his or her weight loss program.

 

Non-Personal Aggregated Activity Data.

The Web Site may offer one or more features whereby Registered Users may upload non-personal statistical information regarding the office activity at a physician practice affiliated with CMWL (the "Physician Practice") during a specific time period, including, without limitation, the number of initial consults seen by the Physician Practice, the number of new patients choosing to purchase the services of the Physician Practice, the number of office visits by patients of the Physician Practice, the number of pickups of CMWL food products, and the total amount of money collected by the Physician Practice for CMWL products or services (the "Non-Personal Aggregated Activity Data"). CMWL cannot and will not be liable for any loss or damage arising from your failure to comply with this section.

 

Refer to Section 21 of these Terms of Use for responsibilities of CMWL and the Physician Practice to uphold and maintain the privacy of Individuals. Pursuant to the Administrative Simplification provisions of the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), the U.S. Department of Health and Human Services (“HHS”) has promulgated regulations at 45 C.F.R. Parts 160-64, implementing the privacy requirements set forth in HIPAA (the “Privacy Rule”) and the electronic security requirements set forth in HIPAA (“Security Rule”), each as amended by the “Health Information Technology for Economic and Clinical Health Act,” part of the “American Recovery and Reinvestment Act of 2009” and any regulations promulgated thereunder (“HITECH Act”).

 

8. Content and Comments Posted by CMWL Users.

From time to time, the Web Site may offer features whereby individuals may post questions to experts or exchange diverse viewpoints, stories and ideas. The interactive nature of such postings on the Web Site makes it impossible for CMWL to assume responsibility for any of the materials posted by Visitors and Registered Users. The ideas, suggestions, opinions, comments, and observations made by Web Site users, and any text, data, photographs, video, music, sound, chat, messages, files or other material provided to us by the Web Site Visitors and Registered Users (all of which are referred to as "User Content") are not endorsed by CMWL, and we make no guarantee regarding the reliability, accuracy, or quality of any User Content that is posted on the Web Site. You acknowledge that you will evaluate and bear any risks related to your use of any User Content, including any reliance on the accuracy, completeness, or usefulness of such User Content. All User Content posted to the Web Site is the sole responsibility of the person who originally posted the User Content, and your sole recourse for any damage you may suffer as a result of User Content shall be to such individual.

CMWL does not claim any ownership rights in User Content. By submitting User Content, you are representing that you are the creator of the material you submit, or have authorization to distribute it. After posting User Content, you continue to retain your ownership rights in such User Content, and you continue to have the right to use your User Content in any way you choose. By sending User Content to CMWL, or posting it on the Web Site, you expressly grant CMWL a worldwide, royalty-free, and non-exclusive license to publicly display, use, reproduce, modify, create derivative works from, and distribute the User Content in any form, in connection with the Web Site or other affiliated or related CMWL ventures. This license is sublicensable (so that CMWL is able to use its affiliates and subcontractors such as Internet content delivery networks to provide the Web Site and any other CMWL services, and to provide archive copies in circumstances where CMWL is contractually obligated to do so). This license will continue perpetually unless and until you remove your user content from the Web Site, at which time the license granted here will automatically expire; provided however, that CMWL may retain archived copies of your user content, and may continue to include, use, or display such user content in published materials (e.g. books, television products) created prior to such removal of your user content. Registered Users may request that CMWL take down User Content by contacting privacy@cmwl.com, but CMWL shall not be obligated to do so.

If you choose to post User Content on the Web Site pages, we require that you adhere to generally accepted rules of etiquette and standards of behavior, and that your use of the Web Site reflects your respect for the legal rights of users connected with CMWL. In particular, you agree to the "Rules of Conduct" posted below (though this is not meant as an exhaustive list).

You acknowledge that CMWL may or may not pre-screen User Content, but that CMWL and its designees shall have the right (but not the obligation) in their sole discretion to pre-screen, refuse, move or remove any User Content from the Web Site, for any or no reason and with or without notice.

 

8.1 Rules of Conduct.

The following rules of conduct apply to your use of the Web Site and to any and all materials you post on the Web Site, including text, data, graphics, audio or video content, music, sound, chat, messages, files or other material ("User Content") whether the User Content is included in blogs, discussion groups, private messages, e-mails, profiles, comments, or any other portion or feature of the Web Site.

You may not, in connection with the Web Site:

• Upload, post, email or otherwise transmit any User Content that:
• is libelous or defamatory, pornographic, sexually explicit, unlawful or plagiarized;
• infringes or violates any patent, copyright (including by plagiarizing), trademark, trade secret or other property right;
• breaches a duty of confidentiality by which you are bound due to a contractual or fiduciary relationship (such as inside information, or proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
• a reasonable person would consider a breach of confidentiality or privacy (such as by posting in a public forum something that was written in a private message or letter);
• a reasonable person would consider inappropriate, harassing, abusive, threatening, harmful, vulgar, profane, obscene, excessively violent, racially, ethnically or otherwise objectionable or offensive in any way;
• constitutes a breach of any person's privacy or publicity rights, a misrepresentation of facts, or hate speech;
• violates or encourages others to violate any applicable law, statute, ordinance or regulation;
• promotes software or services that deliver unsolicited e-mail or spam;
• contains viruses, Trojan horses, worms, time bombs, cancelbots or other similar harmful programming routines;
• Harm minors in any way;
• Solicit personal information
• Use or create inappropriate screen names;
• Provide false or deceptive information (including impersonating another person or entity);
• Use the Web Site as a forwarding service to another Web Site;
• Do anything to prevent the full and complete display of advertisements on the Web Site pages. These include, but are not limited to, making blog style changes, customizations, or overrides that effectively block or substantially impair the display of advertisements on pages within the Web Site;
• Exceed the scope of the services that you have signed up for; for example, accessing and using features that you do not have a right to use, or deleting, adding to, or otherwise changing other people's entries or other Content when you have not been granted the privileges to do so; or
• Allow usage by others in such a way as to violate CMWL's TOU.
• You may not, except with CMWL's express advance authorization or in a specially designated area, use the Web Site to:
  • upload, post, email or otherwise transmit any User Content that provides any telephone numbers, street addresses, last names, URLs or email address; or
  • engage in commercial activities within the Web Site (such as by advertising or selling products or services, or inducing Registered Users and Visitors to the Web Site to enroll in a promotional or money-making enterprise).

 

8.2. Copyright Infringement.

CMWL respects the intellectual property of others, and we ask our users to do the same. Thus, in your use of and interactions with CMWL and the Web Site, you may not post, modify, distribute, or reproduce in any way any User Content that is copyrighted material belonging to others, without obtaining their prior written consent. CMWL reserves the right, in its discretion, to remove any User Content if we believe it may infringe the copyright rights of others, and/or to terminate the accounts of users who we believe to be infringers.

If you believe that your work has been copied and posted on the Web Site in a way that constitutes copyright infringement, we will respond to notices of alleged infringement that comply with the Digital Millennium Copyright Act of 1998 (the "DMCA"), a federal law that provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. The requirements for notices under the DMCA can be found at http://www4.law.cornell.edu/uscode/html/uscode17/usc_sec_17_00000512----000-.html.

CMWL's agent for notice of claims of copyright or other intellectual property infringement can be reached as follows: 

By email: privacy@cmwl.com

By mail:
The Center for Medical Weight Loss
Attention Copyright Agent
200 White Plains Road

3^rd Floor
Tarrytown, NY 10591

We suggest that you consult with a legal advisor before filing a notice under the DMCA. Also, be aware that there can be penalties for false claims under the DMCA.

 

9. Trademark.

The trademarks, trade names, logos, color schemes, service marks, slogans, and similar means if identifying products or services displayed on the Web Site, including without limitation, any variation of the terms or phrases "Center for Medical Weight Loss," “CMWL,” "Doctor's Orders," "Truth in Weight Loss," "Accelerated Program," "Accelerated Plus Program," and "CMWL Accelerated Program" (collectively, the "Marks") are our registered and/or common law Marks or other intellectual property rights. You will not use the Marks without our express written permission. You may not use our Marks in any search engine descriptions, content (meta-tags, "white lettering," key words, or other means of directing or influencing web traffic to any website), web page, portal or e-mail operated, controlled or authorized by you without our express written permission and your doing so constitutes a violation of our rights under U.S. Federal law, U.S. States' laws, and other international laws and a breach of these TOU. You will not adopt or use any names, trademarks, slogans, trade names, trademarks, service marks, e-mail addresses, URLs, meta-tags, key words, search descriptions or the like that are the same or are confusingly similar to the Marks. Without our prior written consent, you will not submit or maintain any information submitted to search engines which incorporate the Marks or any marks that are confusingly similar to the Marks.

 

10. E-Sign.

You acknowledge that your electronic submissions constitute your agreement and intent to be bound by the agreements into which you thereby enter. Pursuant to any applicable statutes, regulations, rules, ordinances or other laws, including without limitation the Electronic Signatures in Global and National Commerce Act, P.L. 106-229 (the "E-Sign Act") or other similar statutes, YOU HEREBY AGREE TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, APPLICATIONS AND OTHER RECORDS AND ELECTRONIC DELIVERY OF NOTICES, POLICIES AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED THROUGH THIS WEB SITE. Further, you hereby waive any rights or requirements under any statutes, regulations, rules, ordinances or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by other than electronic means. You may obtain a copy of this TOU Agreement by printing it now at no additional cost to you or by contacting us later at privacy@cmwl.com. We may charge you up to $15 per copy of this TOU Agreement if we send a copy to you at a later date.

 

11. Disputes.

You are solely responsible for your interactions with other Registered Users or Visitors to the Web Site. CMWL reserves the right, but has no obligation, to monitor or take action regarding disputes between Registered Users and/or Visitors. In the event of disputes, CMWL may in its sole discretion take such action as it deems appropriate, including but not limited to suspending or terminating your account or your ability to access the Web Site, and removing any User Content.

 

12. Indemnity.

You agree to indemnify and hold CMWL and its subsidiaries, affiliate, officers, agents, employees, partners and licensors harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of User Content, Patient Data, or Non-Personal Aggregated Activity Data you submit, post, transmit, or otherwise make available through the Web Site, your use of the Web Site or other CMWL services, your connection to the Web Site, your violation of the TOU, or your violation of any rights of another.

 

13. General Practices Regarding Use and Storage.

CMWL may establish general practices and limits concerning use of the Web Site, including, for example, limits on the number of:

files (including graphics, photographs, videos, or sound/music files) that may be posted

disk space that will be allotted on CMWL's servers on your behalf, and

You agree that CMWL has no responsibility or liability for the deletion or failure to store any messages and other communications or other User Content, provided by you or otherwise, maintained or transmitted by CMWL and its affiliated websites.

 

14. Modifications to the Web Site; Planned Downtime.

CMWL reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Web Site (or any part thereof) with or without notice. CMWL shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Web Site. Without limiting the foregoing, CMWL will from time to time notify you by posting on the Web Site that the Web Site will be unavailable for planned maintenance. Such planned downtime, to the extent practicable, will be scheduled by CMWL during the hours from 6:00 p.m. Eastern time to 6:00 a.m. Eastern time.

 

15. Termination.

CMWL may, under certain circumstances and without prior notice, immediately terminate your CMWL account and access to the Web Site and any other CMWL services. Cause for such termination shall include, but not be limited to:

• breaches or violations of the TOU or other incorporated agreements or guidelines;
• requests by law enforcement or other government agencies;
• a request by you (self-initiated account deletions);
• discontinuance or material modification to the Web Site (or any part thereof);
• unexpected technical or security issues or problems;
• extended periods of inactivity;
• engagement by you in fraudulent or illegal activities; and/or
• nonpayment of any fees owed by you in connection with the Web Site or any other CMWL products or services.

 

Termination of your CMWL account may include:

• removal of access to all pages within the Web Site;
• deletion of your password and all related information, files and materials, including User Content associated with or inside your account (or any part thereof); and
• barring of further use of the Web Site. Further, you agree that all terminations for cause shall be made in CMWL's sole discretion and that CMWL shall not be liable to you or any third party for any termination of your account, any associated email address, or access to the Web Site.

16. DISCLAIMER OF WARRANTIES

YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
YOUR USE OF THE WEB SITE IS AT YOUR SOLE RISK. THE WEB SITE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. CMWL AND ITS SHAREHOLDERS, DIRECTORS, SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

CMWL AND ITS SHAREHOLDERS, DIRECTORS, SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS MAKE NO WARRANTY THAT:

• THE WEB SITE OR ANY OTHER CMWL SERVICES WILL MEET YOUR REQUIREMENTS;
• THE WEB SITE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE;
• THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE WEB SITE WILL BE ACCURATE OR RELIABLE;
• THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH CMWL WILL MEET YOUR EXPECTATIONS; AND
• ANY ERRORS IN THE WEBSITE WILL BE CORRECTED. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE WEB SITE IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.

 

NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM CMWL OR THROUGH OR FROM THE WEB SITE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TOU. 

A SMALL PERCENTAGE OF USERS MAY EXPERIENCE EPILEPTIC SEIZURES WHEN EXPOSED TO CERTAIN LIGHT PATTERNS OR BACKGROUNDS ON A COMPUTER SCREEN OR WHILE USING THE WEB SITE. CERTAIN CONDITIONS MAY INDUCE PREVIOUSLY UNDETECTED EPILEPTIC SYMPTOMS EVEN IN USERS WHO HAVE NO HISTORY OF PRIOR SEIZURES OR EPILEPSY. IF YOU, OR ANYONE IN YOUR FAMILY, HAVE AN EPILEPTIC CONDITION, CONSULT YOUR PHYSICIAN PRIOR TO USING THE WEB SITE. IMMEDIATELY DISCONTINUE USE OF THE WEB SITE AND CONSULT YOUR PHYSICIAN IF YOU EXPERIENCE ANY OF THE FOLLOWING SYMPTOMS WHILE USING THE WEB SITE: DIZZINESS, ALTERED VISION, EYE OR MUSCLE TWITCHES, LOSS OF AWARENESS, DISORIENTATION, ANY INVOLUNTARY MOVEMENT, OR CONVULSIONS.

 

17. LIMITATION OF LIABILITY

YOU EXPRESSLY UNDERSTAND AND AGREE THAT CMWL AND ITS SHAREHOLDERS, DIRECTORS, SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF CMWL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM:

• THE USE OR THE INABILITY TO USE THE WEB SITE;
• THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE WEB SIT OR ANY OTHER CMWL WEB SITES;
• AUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA;
• STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE WEB SITE; OR ANY OTHER MATTER RELATING TO THE WEB SITE OR CMWL.

 

18. NOTICE

CMWL may provide you with notices, including those regarding changes to the TOU, by email, regular mail or postings on the Web Site.

 

19. Violations of These Terms of Use

Please report any violations of the TOU, including objectionable User Content or behavior, by sending an email to privacy@cmwl.com. Please state the reasons for your concern and provide a link to the User Content or, if appropriate, the behavior in question. Upon receiving such a report of a possible violation, CMWL in its sole discretion may investigate the matter and take such action as CMWL determines to be appropriate.

 

20. No Waiver.

CMWL's failure to exercise or enforce any right or provision of these Terms of Use shall not operate as a waiver of such right or provision. This means that CMWL may at any time choose to take an action that it is permitted or legally entitled to take, even if CMWL has not taken such an action in the past, in the same or a similar situation.

 

21. BUSINESS ASSOCIATE AGREEMENT

WHEREAS, the Physician Practice is a health care provider who furnishes various medical services to patients desiring to lose weight;

 

WHEREAS, CMWL provides various weight loss-related services other than medical services, and also offers administrative services that are of benefit to physician practices such as the Physician Practice;

 

WHEREAS, the Practice and CMWL have entered into and/or will be entering into various agreements (collectively, the “Services Agreements”) whereby various administrative and related services will be provided by CMWL to the Practice;

 

WHEREAS, pursuant to the Administrative Simplification provisions of the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), the U.S. Department of Health and Human Services (“HHS”) has promulgated regulations at 45 C.F.R. Parts 160-64, implementing the privacy requirements set forth in HIPAA (the “Privacy Rule”) and the electronic security requirements set forth in HIPAA (“Security Rule”), each as amended by the “Health Information Technology for Economic and Clinical Health Act,” part of the “American Recovery and Reinvestment Act of 2009” and any regulations promulgated thereunder (“HITECH Act”);

 

WHEREAS, the Privacy Rule provides, among other things, that before a HIPAA-covered health care provider such as the Practice is permitted to disclose Protected Health Information (as defined below) to a services provider, known as a business associate, and allow the business associate to obtain and receive Protected Health Information on behalf of the covered entity, such covered entity must obtain satisfactory assurances in the form of a written contract that the business associate will appropriately safeguard the Protected Health Information;

 

WHEREAS, the Security Rule provides, among other requirements, that a HIPAA-covered health care provider obtain additional assurances from a business associate with respect to Protected Health Information that is transmitted by or maintained in electronic media;

 

WHEREAS, CMWL is a business associate of the Practice, and therefore Practice must obtain assurances under the Privacy Rule and Security Rule, in the form of a business associate agreement, from CMWL;

 

WHEREAS, CMWL and Practice have mutually agreed to satisfy the foregoing regulatory requirements through this Agreement.

 

4946/21225-001 Current/23340262v1

NOW THEREFORE, CMWL and Physician Practice agree as follows:

The following terms shall have the following meaning when used in this Agreement:

 

“Breach” shall have the same meaning as the term “breach” in 45 C.F.R. § 164.402.

“Designated Record Set” shall have the same meaning as the term “designated record set” in 45 C.F.R. §164.501.

“Electronic Protected Health Information” shall mean the Protected Health Information that is transmitted or maintained in electronic media, including, but not limited to, hard drives, disks, on the internet, or on an intranet.

“Individual” shall have the same meaning as the term “individual” in 45 C.F.R. §160.103 and shall include a person who qualifies as a personal representative in accordance with 45 C.F.R. §164.502(g).

“Protected Health Information” shall have the same meaning as the term “protected health information” in 45 C.F.R. § 160.103, except limited to the information created or received by CMWL from or on behalf of the Practice as a result of the services provided by CMWL pursuant to the Services Agreements.

“Unsecured PHI” shall have the same meaning as the term “Unsecured Protected Health Information” in 45 C.F.R. § 164.402, except limited to the information created or received by CMWL from or on behalf of the Practice as a result of the services provided by CMWL pursuant to the Services Agreements.

“Required By Law” shall have the same meaning as the term “required by law” in 45 C.F.R. § 164.103.

“Secretary” shall mean the Secretary of HHS or the designee of the Secretary of HHS.

Any capitalized term not specifically defined herein shall have the same meaning as is set forth in 45 C.F.R. Parts 160 and 164, where applicable.  The terms “use,” “disclose” and “discovery,” or derivations thereof, although not capitalized, shall also have the same meanings set forth in HIPAA and its implementing regulations.

 

21.1 Obligations and Activities of CMWL:

CMWL agrees to not use or disclose Protected Health Information other than as permitted or required by this Agreement or as Required By Law.

CMWL agrees to use appropriate administrative, technical and physical safeguards to prevent use or disclosure of the Protected Health Information other than as provided for by this Agreement.

CMWL agrees to mitigate, to the extent practicable, any harmful effect that is known to CMWL of a use or disclosure of Protected Health Information by CMWL in violation of the requirements of this Agreement.

CMWL agrees to report to Practice after becoming aware of any use or disclosure of the Protected Health Information not provided for by this Agreement.

CMWL agrees to ensure that any agent, including a subcontractor, to whom it provides Protected Health Information received from, or created or received by Practice, agrees to substantially the same restrictions and conditions that apply through this Agreement to CMWL with respect to such information.

CMWL agrees to provide to Practice, in the manner reasonably requested by Practice, access to Protected Health Information in a Designated Record Set (if CMWL maintains a Designated Record Set on behalf of Practice), in order for the Practice to fulfill in a timely manner its obligations under 45 C.F.R. § 164.524 to provide access and copies of Protected Health Information to an Individual.  CMWL agrees that if it maintains Protected Health Information in an Electronic Health Record, as defined in the HITECH Act, it shall provide such access in electronic format if so requested in writing by Practice, to the extent required by and in accordance with Section 13405(e) of the HITECH Act.  Nothing herein shall be deemed to require CMWL to maintain Protected Health Information in either a Designated Record Set or in an Electronic Health Record if none of the Services Agreements so require.

CMWL agrees to make available to Practice, in the manner reasonably requested by Practice, such information as the Practice may require to fulfill in a timely manner Practice’s obligations pursuant to 45 C.F.R. § 164.526 to amend Protected Health Information that CMWL maintains in a Designated Record Set (if CMWL maintains a Designated Record Set on behalf of Practice), and if so notified by Practice, to incorporate any amendments to which Practice has agreed.

CMWL agrees to make its internal practices, books, and records, including policies and procedures and Protected Health Information, relating to the use and disclosure of Protected Health Information received from, or created or received by CMWL on behalf of Practice available to the Secretary, for purposes of the Secretary determining Practice’s compliance with the Privacy Rule. 

CMWL agrees to document such disclosures of Protected Health Information and information related to such disclosures as would be required for Practice to respond to a request by an Individual for an accounting of disclosures of Protected Health Information in accordance with 45 C.F.R. § 164.528.

CMWL agrees to provide to Practice, as soon as practicable and in the manner reasonably requested by Practice, information collected in accordance with Section 2(i) of this Agreement, to permit Practice to respond in a timely manner to a request by an Individual for an accounting of disclosures of Protected Health Information in accordance with 45 C.F.R. § 164.528.  In addition, upon Practice’s written request on behalf of an Individual, CMWL agrees to provide an accounting of such disclosures of Protected Health Information maintained in an Electronic Health Record (if any) as required by and in accordance with Section 13405(c) of the HITECH Act. 

 

21.2 Permitted Uses and Disclosures by CMWL.

CMWL may use or disclose Protected Health Information to perform functions, activities, or services for, or on behalf of, Practice as specified in the Services Agreements, provided that such use or disclosure would not violate the Privacy Rule if done by the Practice.

CMWL may use Protected Health Information for the proper management and administration of CMWL or to carry out the legal responsibilities of CMWL. CMWL also may disclose Protected Health Information for the proper management and administration of CMWL or to carry out its legal responsibilities, provided that such disclosures are Required By Law or CMWL obtains reasonable assurances from the person to whom the information is disclosed that it will remain confidential and used or further disclosed only as Required By Law or for the purpose for which it was disclosed to the person, and the person notifies CMWL of any instances of which it is aware in which the confidentiality of the information has been breached.

CMWL may use Protected Health Information to provide data aggregation services as permitted by 45 C.F.R. § 164.504(e)(2)(i)(B).

CMWL may use Protected Health Information to report violations of law to the appropriate Federal and State authorities, consistent with 45 C.F.R. §164.502(j)(1).

CMWL may use Protected Health Information to create de-identified information pursuant to the provisions of the Privacy Rule, and once such information is de-identified in compliance with the Privacy Rule, such information is no longer Protected Health Information and therefore shall not be subject to HIPAA or the terms of this Agreement.

Without limiting any other provision hereof, CMWL may use or disclose Protected Health Information only if such use or disclosure is in compliance with 45 C.F.R. § 164.504(e).  The additional requirements of the HITECH Act that relate to privacy and that are made applicable to covered entities shall also apply to CMWL, and are hereby incorporated into this Agreement.

 

21.3 Security Standards.

CMWL shall implement administrative, physical and technical safeguards that reasonably and appropriately protect the confidentiality, integrity and availability of Electronic Protected Health Information that it creates, receives, maintains, or transmits on behalf of Practice.

With respect to the safeguards required by Section 4(a) above, 45 C.F.R. Sections 164.308 (administrative safeguards), 164.310 (physical safeguards), 164.312 (technical safeguards) and 164.316 (policies and procedures and documentation requirements), shall apply to CMWL in the same manner that such sections apply to the Practice.  The additional requirements of the HITECH Act that relate to security and that are made applicable to covered entities shall also apply to CMWL, and are hereby incorporated into this Agreement.

CMWL shall ensure that any agent, including a subcontractor, to whom it provides Electronic Protected Health Information agrees to implement reasonable and appropriate safeguards to protect such Electronic Protected Health Information.

Without limiting the provisions of Section 5 below, CMWL shall promptly report to Practice after becoming aware of any successful Security Incident involving Electronic Protected Health Information, in the time and manner reasonably directed by Practice. With respect to unsuccessful Security Incidents (such as pings on a firewall), CMWL shall only provide aggregated reports which shall be made available only upon specific request of the Practice, and which requests shall be no more frequent than annually.

 

21.4 Breaches of Unsecured PHI.

CMWL shall promptly notify Practice of a Breach of Unsecured PHI that is maintained, used or transmitted by or on behalf of CMWL.  Such notification shall include, to the extent possible and to the extent information is available to CMWL, all of the elements specified in 45 C.F.R. § 164.404(c), including a brief description of what happened; the types of Unsecured PHI involved; the date of the Breach and date of its discovery; any steps Individuals should take to protect themselves from potential harm; and what CMWL is doing to investigate the Breach, mitigate harm, and protect against further breaches.  In the event that such elements and details are not immediately known, CMWL shall follow up with Practice as soon as possible, providing information as it becomes available, without unreasonable delay.

 

21.5 Obligations of Practice.

Practice shall notify CMWL of any limitation(s) in its notice of privacy practices in accordance with 45 C.F.R. §164.520, if and to the extent that such limitation restricts CMWL's permitted uses and disclosures of Protected Health Information.

Practice shall notify CMWL of any changes in, or revocation of, permission by an Individual to use or disclose Protected Health Information, if and to the extent that such changes may affect CMWL's use or disclosure of Protected Health Information.

Practice shall notify CMWL of any restriction on the use or disclosure of Protected Health Information that Practice has agreed to in accordance with 45 C.F.R. §164.522, to the extent that such restriction limits CMWL's permitted use or disclosure of Protected Health Information. Practice shall only agree to such restrictions limiting CMWL’s use or disclosure of Protected Health Information in the event that Practice is legally required to so agree.

Practice shall not request that CMWL use or disclose Protected Health Information in any manner that would not be permissible under HIPAA if done by Practice or by CMWL, except to the extent that CMWL may use or disclose Protected Health Information in accordance with the provisions of Sections 3(b) – (d) hereof.

 

21.6 Term and Termination.

Term. The Term of this Agreement shall commence as of the Effective Date and shall terminate when all of the Protected Health Information provided by Practice to CMWL, or created or received by CMWL on behalf of Practice, is destroyed or returned to Practice, or, if it is infeasible to return or destroy Protected Health Information, protections are extended to such information, in accordance with Section 7(c).

Termination for Cause.

Upon either party's knowledge of a material breach of this Agreement by the other party, the non-breaching party may, at its election, either:

Provide an opportunity for the breaching party to cure the breach or end the violation and terminate this Agreement and those parts of the applicable Services Agreement that require use and disclosure of Protected Health Information, if the breaching party does not cure the breach or end the violation within the reasonable time specified by non-breaching party;

Immediately terminate this Agreement and those parts of the applicable Services Agreement that require use and disclosure of Protected Health Information, if the breaching party has breached a material term of this Agreement and cure is not possible; or

If neither termination nor cure is feasible, the non-breaching party may report the violation to the Secretary.

Effect of Termination.

Except as provided in Section 7(c)(ii), upon termination of this Agreement or all of the Services Agreements for any reason, CMWL shall return all Protected Health Information received from Practice, or created or received by CMWL on behalf of Practice, or CMWL may alternatively certify in writing to Practice that it has destroyed all Protected Health Information.  This provision shall apply to Protected Health Information that is in the possession of subcontractors or agents of CMWL.  CMWL shall retain no copies of the Protected Health Information, including no electronic copies.

In the event that CMWL reasonably determines that returning or destroying some or all of the Protected Health Information is infeasible, CMWL shall extend the protections of this Agreement to such Protected Health Information and limit further uses and disclosures of such Protected Health Information to those purposes that make the return or destruction infeasible, for so long as CMWL maintains such Protected Health Information.

 

21.7 Miscellaneous.

Regulatory References. A reference in this Agreement to a section in the Privacy Rule, the Security Rule, or to another section of HIPAA means the section as in effect or as amended.

Amendment.  The parties agree that amendment of this Agreement may be required to ensure that the parties comply with changes to the requirements of the Privacy Rule, Security Rule and other provisions of HIPAA, including, but not limited to, any regulations promulgated under the HITECH Act.  In the event of such changes in law or regulations, the parties agree to negotiate in good faith to amend this Agreement to include the changes required by such changes in law or regulations. Any amendments to this Agreement shall not be binding unless executed by both parties.

Survival. The provisions of Section 7(c), this Section 8(c), and Section 8(e) shall survive termination of this Agreement.  All other provisions of this Agreement shall survive the termination of this Agreement to the extent that such provisions relate to Protected Health Information that has not been returned or destroyed by CMWL in accordance with Section 7(c) hereof.  

Interpretation. Any ambiguity in this Agreement shall be resolved to permit both parties to comply with the Privacy Rule, Security Rule and other provisions of HIPAA, including, but not limited to, any regulations promulgated under the HITECH Act.

Governing Law.  The construction, interpretation and performance of this Agreement and all transactions under this Agreement shall be governed and enforced pursuant to the laws of the State of New York, except as such laws are preempted by any provision of federal law, including HIPAA.  Any action or proceeding arising out of or relating to this Agreement shall be brought and tried exclusively in the state and federal courts located in the State of New York, Westchester  County, and in no other court or venue.  The parties hereby waive any claim or defense that any forum set forth in this subsection (e) is not convenient or proper, and expressly agree to the venue and jurisdiction of the courts set forth in this subsection (e).

No Third Party Beneficiary.  Nothing express or implied in this Agreement is intended to confer, nor shall anything herein confer, upon any person other than the parties and the respective successors or assigns of the parties, any rights, remedies, obligations, or liabilities whatsoever.

Controlling Provisions.  In the event that it is impossible to comply with both the Services Agreements and this Agreement, the provisions of this Agreement shall control with respect to those provisions of each agreement that expressly conflict.  This Agreement shall supersede and replace any prior business associate agreements between the parties, with respect to any actions of CMWL after the Effective Date.

Effect.  This Agreement shall be binding upon, and shall inure to the benefit of, the parties hereto and their respective successors, assigns, heirs, executors, administrators and other legal representatives.

Severability.  In the event any provision of this Agreement is rendered invalid or unenforceable under any new or existing law or regulation, or declared null and void by any court of competent jurisdiction, the remainder of the provisions of this Agreement shall remain in full force and effect if it reasonably can be given effect.

Counterparts.  This Agreement may be executed in any number of counterparts, each of which shall be deemed an original.  Facsimile copies thereof shall be deemed to be originals.

Notices.  Any notice, consent, request or other communication required or permitted under this Agreement shall be in writing and delivered personally by hand delivery or overnight delivery by a nationally recognized service.  Notice that is sent by overnight courier shall be deemed given one (1) business day after it is dispatched, provided that receipt is acknowledged.  All notices to the Practice shall be addressed to the Primary CMWL Account Owner as indicated in the binding Master Agreement in force between CMWL and the Practice. All notices to CMWL shall be addressed as follows:

CMWL Compliance Office

200 White Plains Road

3^rd Floor

Tarrytown, NY 10591

 

22. CMWL Clinical Research Program Participation

You agree to participate in the Center for Medical Weight Loss (“CMWL”) initiative to measure program efficacy and to engage in weight loss-related research in a series of perpetual ongoing clinical trials (the “Initiative”).  As part of Physician’s Practice participation in the Initiative, you agree that your Practice will not provide meal replacement nutritional products to CMWL patients other than those purchased through CMWL (“CMWL Products”).  You will use CMWL Products in your Physician Practice along with the programs and protocols taught at the training seminar provided by CMWL.  You have reviewed the CMWL training seminar manual and have been provided a copy for reference in the future.  You understand that the Initiative will allow research to be conducted in a uniform fashion across participating offices that are affiliated with CMWL, and that this will allow research results to be mapped across CMWL participating centers. 

 

CMWL agrees to only use HIPAA-compliant identifiers when data is aggregated across participating offices, in such a way that no individual will be identifiable from review of aggregated data. 

 

Usage of the CMWL Clinical Research data includes but is not limited to demonstrating the proven efficacy of CMWL’s office protocols, products, and programs to corporations and third party organizations for the purposes of advancing CMWL corporate wellness initiatives for the benefit of your Physician Practice. You also acknowledge that other Physician Practices participating in the Initiative may also benefit from such efforts.

 

You agree to contact Dr. Kaplan at 631-366-2333 or drkaplan@cmwl.com with any questions or concerns about the CMWL Clinical Research Program. 

 

23. Terms of Use Update.

TOU last updated August 31, 2011.