INDEPENDENT CLIENT/COACH WEB PORTAL AGREEMENT
This Web Portal Access, Services and Education Agreement (“Agreement”) is entered intoas of the date of registration (“Effective Date”), between the Wellness Coach Catalyst (a subsidiary of U.S. Corporate Wellness, Inc., a Colorado corporation – “USCW”) and the registrant into this program (“Client” or “Coach”) (collectively “the Parties”).
WHEREAS, Client/Coach desires web portal access services and educational trainingprovided by USCW under the terms and conditions of this Agreement;
WHEREAS, Client/Coach desires the use and utilization of certain resources, tracking systems and secure electronic notes, as well as educational training provided by USCW under the terms and conditions of this Agreement;
WHEREUPON, in consideration of the above premises and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:
1. Web Portal, Access Services and Educational Training. The web portal and access services provided under this Agreement, include but are not limited to:
1.1 USCW will provide web portal and access services to Client/Coach twenty-four (24) hours per day, seven (7) days per week, with no more than 5% downtime as stated in Sections 4.2 and 4.3 of this Agreement;
1.2 USCW will allow Client/Coach, Client/Coach’s personnel, andClient/Coach’s clients web portal and access to utilize electronic resources, tracking systems and secure electronic notes based on the fee schedule identified;
1.3 Educational Training Programs
2. Payment
2.1 Client/Coach agrees to pay USCW a monthly rate in the amount indicated in the pricing structure provided for each and every month it is provided withany administrative or client use of the web portal access and services under this Agreement, which includes but is not limited to use by Client/Coach’s personnel and Client/Coach’s clients.
2.2 In addition to the standard monthly rate, Client/Coach agrees to pay USCW a monthly rate per client as noted in the pricing structure for each and every month a client of Client/Coach is provided with use and utilization of the USCW’s web portal access and services under this Agreement.
2.3 Payment by Client/Coach will be set up for automatic payment each month. If credit card information is not kept up to date, membership will be immediately terminated and further access denied until corrected.
2.4 Client/Coach is solely responsible for the payment of its clients use and utilization of the USCW’s web portal access and services under this Agreement.
2.5 Client/Coach can cancel web portal services at any time and future payments will be discontinued as of the first day of the next month. No refunds are provided, as Client/Coach is paying month to month. For educational training, any partial refund policy will be clarified during registration.
3. Independent Client/Coach Status and General Duties.
3.1 Status. Client/Coach acknowledges that this service and training in no form shall be deemed to create an agency, joint venture or employer/employee relationship between the Parties hereto or between USCW and Client/Coach’s personnel or clients.
3.2 Assignment. Client/Coach may not assign or subcontract its rights or obligations hereunder. Use by other coaches requires additional registration and agreement by that Client/Coach.
3.3 Misappropriation. Client/Coach shall not knowingly acquire, use, copy or misappropriate any tools, resources, trade secrets, patented or proprietary information belonging to USCW for any purpose.
3.4 Penalty for Misappropriate. If it is deemed that a Client/Coach has shared information about the tools and resources provided with any competing wellness provider or utilize access to enhance the services of any firm apart from USCW, the Client/Coach will be responsible for payment to USCW in the amount of $20,000 for each individual incident or component involved plus any legal fees and costs.
4. Representations.
4.1 Client/Coach agrees that USCW’s web portal access and services are provided for their business utilization and USCW makes no warranties about the success of the Client/Coach’s business.
4.2 Client/Coach agrees that USCW’s web portal access and services may, at certain times, be temporarily down and inaccessible for certain routine scheduled maintenance and/or unanticipated or unforeseen maintenance and repairs as deemed necessary by USCW.
4.3 Client/Coach agrees to hold harmless USCW for any time(s) web portal access and services may be temporarily down and/or inaccessible toClient/Coach, Client/Coach’s personnel and Client/Coach’s client for certain routine scheduled maintenance and/or unanticipated or unforeseen maintenance and repairs as deemed necessary by USCW. Note that historically, this has involved significantly less than 1% downtime.
4.4 Client/Coach acknowledges that all Work Product provided to USCW for posting shall become the property of USCW
5. Work Product.
5.1 Client/Coach agrees that any and all inventions, improvements, developments, discoveries, copyrightable works, or contributions thereto, including, without limitation, any written works, designs, blueprints or specifications, images, and/or instructions, whether or not they are the subject of patent or copyright or other proprietary rights protection under any federal, state, local or foreign law(s), created in whole or part byClient/Coach or any of Client/Coach’s personnel or any of Client/Coach’s clients during the term of this Agreement or relating in any way to the Services under this Agreement (hereinafter “Work Product”) shall be the sole and exclusive property of USCW, and shall belong to USCW free and clear from any and all right, title and interest of any other person, including, without limitation, Client/Coach, Client/Coach’s personnel, andClient/Coach’s clients. It is specifically agreed and understood that neitherClient/Coach nor Client/Coach’s personnel nor Client/Coach’s clients shall retain any right, title, or interest in, or any right to use, any such Work Product. Client/Coach shall promptly and fully disclose to USCW all such Work Product. Client/Coach acknowledges that all Work Product shall be a work for hire for the benefit of USCW.
5.2 Client/Coach hereby conveys, transfers and assigns all right, title and interest in and to any Work Product to USCW, and further agrees to execute any written assignment or other agreement USCW deems necessary at any time to effect the foregoing and to obtain or uphold, for USCW’s benefit, all copyright, patent, and/or other rights of USCW in such Work Product.
5.3 Client/Coach’s obligations in this Section 5 shall survive the termination of this Agreement.
6. Confidentiality and Trade Secrets.
6.1 Confidential Business Information and Trade Secrets. “Confidential Information” means proprietary business information, Trade Secrets and/or other confidential information regarding USCW or any of its subsidiaries or members which (i) has not otherwise become public knowledge, (ii) was not already known to Client/Coach or learned byClient/Coach from independent and unrestricted sources prior to the Effective Date; provided, however, that to the extent Client/Coach,Client/Coach’s personnel, or Client/Coach’s clients originated, invented or provided such information and such information relates to the Agreement or has been assigned or conveyed to USCW, such information shall be included in the definition of “Confidential Information”, and (iii) has not been disclosed by USCW to others without substantial restriction on further disclosure. “Trade Secrets” means any proprietary information not generally known in the industry in which USCW is engaged or may become engaged, including, without limitation, information relating to USCW’s health and wellness programs, business affairs, finances, properties, methods of operation, sources of and arrangements for materials used in the development and marketing of USCW’s programs, USCW’s client or contact lists, and other confidential information respecting the business or affairs of USCW. Client/Coach acknowledges and agrees that the business and good will of USCW depends upon it keeping such Confidential Information confidential.
6.2 Confidential Health and/or Medical Information. In the course of conducting USCW’s business, Client/Coach and Client/Coach’s personnel may receive or have access to confidential medical and/or health information for clients. Additionally, Client/Coach may have access to confidential medical and/or health information of other USCW clients. “Confidential medical and/or health information” means any and all information created or received by a health care provider, health plan, public health authority, employer or other individual or group relating to the past, present, or future physical or mental health or condition of an individual or provision of health care to an individual. All such confidential medical and/or health information is to be securely maintained and kept confidential, and shall be used or disclosed only for the purpose of furthering USCW’s business or programs, and at the direction of USCW. If Client/Coach receive or have access to information that may indicate that a client is being abused or is in physical danger or, that a third party is being abused or is in physical danger. Such information shall immediately be reported to a USCW company representative. In addition, while the site is HIPAA compliant-ready, the Coach/Client is responsible for utilizing the site and any communication through email or other means in a HIPAA compliant manner. USCW has no responsibility for Private Health Information (PHI) shared between the Client/Coach and his/her own clients.
6.3 Non-Disclosure. Except as required by law, court order or subpoena,Client/Coach and Client/Coach’s personnel shall keep confidential and shall not divulge to any other person or entity, during the term of this Agreement or at any time thereafter, any of USCW’s Confidential Information. In any case where Client/Coach or any of Client/Coach’s personnel is compelled by law, court order or subpoena to disclose any Confidential Information to any third person, Client/Coach shall, to the maximum extent allowed by law, promptly advise USCW in advance of such requirement and shall permit USCW to object, contest, intervene or obtain appropriate protection of such information prior to its disclosure to any person.
6.4 Injunctive Relief. Client/Coach acknowledges that disclosure of any Confidential Information or Work Product by Client/Coach orClient/Coach’s personnel will give rise to irreparable injury, which is inadequately compensable in damages, to USCW or the owner of such Confidential Information. Accordingly, USCW or such other party, in addition to any other remedies which are elsewhere granted in this Agreement or which may be otherwise available at law or in equity, may seek and obtain injunctive relief against the breach or threatened breach of the foregoing Section 5.3, any infringement upon any intellectual property rights of USCW, or any other breach of any term, covenant, condition, warranty or representation of the Agreement.
6.5 All obligations under this Section 5 shall survive the termination of this Agreement.
7. HIPAA Compliance.
7.1 Client/Coach Responsibilities. Client/Coach acknowledges and maintains that Client/Coach will maintain strict and sole compliance with current HIPAA regulations and/or any and all Protected Health Information(PHI) provided to Client/Coach or Client/Coach’s personnel byClient/Coach’s clients.
8. Warranties of Client/Coach. In addition to the other terms, covenants, warranties and representations of Client/Coach under this Agreement, Client/Coachwarrants:
8.1 That all web access and portal services utilized under this Agreement byClient/Coach or Client/Coach’s clients shall be performed in a workmanlike and professional manner and at the level of skill commensurate with the requirements of this Agreement;
8.2 That any Work Product under this Agreement is the original work of USCW and that no third party, including, without limitation, Client/CoachClient/Coach’s clients has any right title or interest therein;
8.3 That all web access and portal services utilized under this Agreement shall be in full compliance with all applicable laws, rules and regulations;
8.4 That all web access and portal services utilized under this Agreement shall not violate any contract which Client/Coach, or Client/Coach’s clients has with any other person or entity;
8.5 That all Services performed under this Agreement, and all Work Product delivered under this Agreement, shall not violate any patent, trade secret, trademark, copyright or similar or other proprietary right of any third person or entity; and
8.6 All covenants and warranties of Client/Coach under this Section 8 and elsewhere in this Agreement shall survive the termination of this Agreement.
9. Term/Termination/Breach.
9.1 Client/Coach can cancel the agreement at any time. Payment will be discontinued as of the 1st day of the month following notification to USCW. No refunds are provided. In the case of educational services, a partial refund policy will be noted in the registration process.
9.2 USCW may cancel this agreement at any time and for any reason.
10. Miscellaneous.
10.1 Purpose. This purpose of this Agreement is to provide web access and portal services to Client/Coach, and Client/Coach’s clients. Client/Coachunderstands and agrees that the web access and portal services provided under the terms of this Agreement are not medical care or advice or any other health care, diagnosis, or treatment.
10.2 Governing Law. This Agreement and any dispute arising hereunder shall be construed in accordance with the laws of the State of Colorado. Any action or claim brought by Client/Coach or Client/Coach’s personnel may only be brought in a court located within Jefferson County, Colorado.
10.3 Entire Agreement. This Agreement contains the entire agreement of the Parties relating to the subject matter hereof. All prior proposals, understandings, or oral agreements between the Parties that relate to the subject matter hereof are hereby superseded by this Agreement. This Agreement may not be modified or altered except by a written agreement executed by duly authorized officers or agents of the Parties hereto.
10.4 Sole Discretion of USCW. Client/Coach acknowledges, understands and agrees that the content of the web access and services portalClient/Coach is within the sole discretion of USCW.
10.5 Notice. Any notice to be given under this Agreement shall be sufficient if it is in writing and is sent by certified or registered mail.
If to USCW:
Wellness Coach Catalyst
c/o Brad Cooper
13054 W. Buckhorn Road, Suite A
Littleton, Colorado 80127
If to Client/Coach: Name and address provided during registration
10.5 Waiver. If a Party hereto fails to exercise a right with respect to the other Party, such failure shall not be deemed a waiver of such right or any other such right.
10.6 Rights and Remedies. The rights and remedies granted to each Party herein are in addition to and not in lieu of any of the rights and remedies allowed at law or in equity.
10.7 Captions. The Captions or headings used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement.
10.8 Severability/Reformation. In the event any covenant, condition or other provision of this Agreement is held invalid, void or illegal by any court of competent jurisdiction, the same shall be deemed severable from the remainder of this Agreement and shall in no way affect, impair or invalidate any covenant, condition or provision, and shall be deemed replaced by a provision which comes closest to such unenforceable provision in language and intent, without being invalid, void or illegal.
10.9 Attorney Fees. In the event that either Party brings any action to enforce its rights or to exercise its remedies hereunder, the prevailing party in such action may recover its costs of litigation, including without limiting the generality of the foregoing, its reasonable attorney fees.
10.10 Binding Agreement. This Agreement is binding upon and shall inure to the benefit of both USCW and Client/Coach and their respective successors, assigns and heirs, as the case may be.
10.11 Acknowledgment. USCW and Client/Coach acknowledge that they have read this Agreement, understand it and agree to be bound by its terms.
IN WITNESS WHEREOF, USCW and Client/Coach have duly executed this IndependentClient/Coach Agreement as of the Effective Date.
Appendix 1
HIPAA Compliance
BACKGROUND STATEMENTS
Purpose
The purpose of this Appendix is to comply with the requirements of the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) and the associated regulations, 45 C.F.R. parts 160-164, as may be amended (the “Privacy Rule”) and 45 C.F.R. §142.308(a)(2), as may be finalized and amended (the “Chain of Trust” requirement).
Unless otherwise defined in this Appendix, capitalized terms have the meanings given in the Privacy Rule. The Privacy Rule requires Client/Coach to obtain written assurances from USCWthat USCW will appropriately safeguard Protected Health Information (“PHI”). The Chain of Trust provision requires that a contract involving exchange of Protected Health Information protect the integrity and confidentiality of the Protected Health Information.
Relationship
USCW and Client/Coach have entered into a relationship under which USCW may receive, use, obtain, access or create Protected Health Information from or on behalf of the Client/Coach in the course of providing the web access and portal access as provided in the Agreement.
The Parties hereby agree as follows:
Section 1: Permitted Uses and Disclosures
USCW may use and/or disclose PHI only as permitted or required by this Agreement or as otherwise required by Laws. Client/Coach may disclose PHI to, and permit the use of PHI by, its employees, Client/Coaches, agents, or other representatives only to the extent directly related to and necessary for the performance of the Services. USCW will request from Client/Coach no more than the minimum PHI necessary to perform the Services. USCW will not use or disclose PHI in a manner (i) inconsistent with Client/Coach’s obligations under the Privacy Rule, or (ii) that would violate the Privacy Rule if disclosed or used in such a manner by Client/Coach.
Section 2: Safeguards for the Protection of PHI
USCW will implement and maintain commercially appropriate security safeguards to ensure that PHI obtained by or on behalf of Client/Coach is not used or disclosed by USCW in violation of this Agreement. Such safeguards shall be designed to protect the confidentiality and integrity of such PHI obtained, accessed or created from or on behalf of Client/Coach. Security measures maintained by USCW shall include administrative safeguards, physical safeguards, technical security services and technical security mechanisms as necessary to protect such PHI. Upon request by Client/Coach, USCW shall provide a written description of such safeguards.
Section 3: Reporting and Mitigating the Effect of Unauthorized Uses and Disclosures
If USCW has knowledge of any use or disclosure of PHI not provided for by this Agreement, thenUSCW will immediately notify Client/Coach. USCW will establish and implement procedures and other reasonable efforts for mitigating, to the greatest extent possible, any harmful effects arising from any improper use and/or disclosure of PHI.
Section 4: Use and Disclosure of PHI by SubClient/Coaches, Agents, and Representatives
USCW will require any Client/Coach, agent, or other representative that is authorized to receive, use, or have access to PHI obtained and created under the Agreement, to agree, in writing, to adhere to the same restrictions, conditions and requirements regarding the use and/or disclosure of PHI and safeguarding of PHI that apply to USCW under this Agreement. (Such agreement shall identify Client/Coach as a third-party beneficiary with rights of enforcement in the event of any such violations.)
Section 5: Individual Rights
USCW will comply with the following Individual rights requirements as applicable to PHI used or maintained by USCW:
5.1 Right of Access
USCW agrees to provide access to PHI, at the request of Client/Coach and in the time and manner designated by Client/Coach, to Client/Coach or, as directed, to an Individual in order to meet the requirements under 45 C.F.R. § 164.524.
5.2 Right of Amendment
USCW agrees to make any amendment(s) to PHI that Client/Coach directs or agrees to pursuant to 45 C.F.R. § 164.526 at the request of Client/Coach or an Individual, and in the time and manner designated by Client/Coach.
5.3 Right to Accounting Disclosures
USCW agrees to document such disclosures of PHI as would be required for Client/Coach to respond to a request by an Individual for an accounting of disclosures of PHI in accordance with 45 C.F.R. § 164.528. USCW agrees to provide to USCW or an Individual, in the time and manner designated by Client/Coach, such information collected in order to permit Client/Coach to respond to a request by an Individual for accounting of disclosures of PHI in accordance with 45 C.F.R. § 164.528.
Section 6: Use and Disclosure for USCW’s Purposes
6.1 Use
Except as otherwise limited in this Agreement, USCW may use PHI for the proper management and administration of USCW or to carry out the legal responsibilities of USCW.
6.2 Disclosure
Except as otherwise limited in this Agreement, USCW may disclose PHI for the proper management and administration of USCW, provided the disclosures are required by law, orUSCW obtains reasonable assurances from the person to whom the PHI is disclosed that it will remain confidential and be 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 USCW of any instances of which it is aware in which the confidentiality of the PHI has been breached.
Section 7: Audit, Inspection and Enforcement by Client/Coach
USCW will make its internal practices, books, records, and policies and procedures relating to the use and disclosure of PHI received from, or created or received by USCW on behalf ofClient/Coach, available to the federal Department of Health and Human Services (“HHS”), the Office for Civil Rights (“OCR”), or their agents or to Client/Coach for purposes of monitoring compliance with the Privacy Rule.
Section 8: Term and Termination
8.1 Termination
In addition to the Termination clause of the Agreement, Client/Coach may immediately terminate this Agreement if Client/Coach determines that USCW has breached a material term of this Agreement. Alternatively, in Client/Coach’s sole discretion, Client/Coach may provide USCWwith written notice of the existence of the material breach and afford USCW thirty (30) days to cure the material breach. In the event USCW fails to cure the material breach within such time period, Client/Coach may immediately terminate the Agreement. Client/Coach may also report the material breach to the Secretary of HHS or OCR.
8.2 Effect of Termination
Upon termination of this Agreement, USCW will recover any PHI relating to the Agreement in the possession of its Client/Coaches, agents, or representatives. USCW will return to Client/Coach or destroy all such PHI plus all other PHI relating to the Agreement in its possession, and will retain no copies. If USCW believes that it is not feasible to return or destroy the PHI as described above,USCW shall notify Client/Coach in writing. The notification shall include (i) a statement thatUSCW has determined that it is infeasible to return or destroy the PHI in its possession, and (ii) the specific reasons for such determination. If Client/Coach agrees in its sole discretion that USCWcannot feasibly return or destroy the PHI, USCW will ensure that any and all protections, requirements and restrictions contained in this Agreement will be extended to any PHI retained after the termination of the Agreement, and that any further uses and/or disclosures will be limited to the purposes that make the return or destruction of the PHI infeasible.
Section 9: Indemnification
USCW will indemnify, defend and hold harmless Client/Coach and its respective employees, directors, officers, Client/Coaches, agents and affiliates from and against all claims, actions, damages, losses, liabilities, fines, penalties, costs or expenses (including without limitation reasonable attorneys’ fees) suffered by Client/Coach arising from or in connection with any breach of this Appendix, or any negligent or wrongful acts or omissions in connection therewith, byUSCW or by its employees, directors, officers, Client/Coaches or agents.
Section 10: Miscellaneous
10.1 Survival
The respective rights and obligations of the Parties under Sections 7 (Audit and Inspection Rights), 8.2 (Effect of Termination), 9 (Indemnification) and 10 (Miscellaneous) will survive termination of the Agreement indefinitely.
10.2 Compliance with Privacy Rule
Any ambiguity in this Agreement shall be resolved in favor of a meaning that permits Client/Coachto comply with the Privacy Rule. The Parties agree to amend this Agreement from time to time as necessary for Client/Coach to comply with the requirements of the Privacy Rue and HIPAA.
