This Independent Contractor Agreement for Health Care Providers ("Contractor Agreement") is made between You ("Provider") and orthobrain, LLC ("orthobrain"), individually designated as "Party" and collectively "Parties." You accept all of the terms and conditions that are set forth in this Contractor Agreement by either clicking through this Contractor Agreement or by communicating patient information through the orthobrain website.
In consideration of the mutual promises herein contained, the Parties agree as follows, and Provider accepts and agrees to all of the terms and conditions set forth herein by indicating electronically his or her acceptance:
1. Independent Contractor. orthobrain agrees to provide the professional services described herein as an independent contractor. It is mutually understood and agreed that orthobrain is at all times acting and performing these duties and functions in the capacity of an independent contractor; that Provider shall neither have nor exercise any control or direction over the methods by which orthobrain performs orthobrain's services, nor shall Provider and orthobrain be deemed partners. Provider shall have the right to determine what services shall be provided, but not the manner in which services shall be provided. Provider and orthobrain recognize that Provider remains the sole treating doctor in all regards for all patients and, thus, after receiving any products or services from orthobrain Provider is free to alter those products and services in accordance with the needs of Provider's patients or customers. It is expressly agreed by the Parties hereto that no work, act, commission, or omission by orthobrain pursuant to the terms and conditions of this Contractor Agreement shall be construed to make or render orthobrain the agent, employee, or servant of the Provider. The Parties also expressly agree that no work, act, commission, or omission by Provider shall be construed to make or render Provider the agent, employee, or servant of orthobrain. Each Party shall be responsible for the payment of its own federal, state, and/or local taxes incurred as a result of this Contractor Agreement.
2. Services. orthobrain agrees to provide the following professional health care services (and only the following professional healthcare services) as requested by Provider: (a) diagnosis based on the completeness and accuracy of the information that You provide to orthobrain; (b) treatment plan for orthodontics based on the information that You provide to orthobrain; and (c) if requested, then orthodontic appliances. orthobrain agrees to perform such services, at all times, in strict accordance with currently approved and accepted methods and practices in the profession. orthobrain further agrees to provide services in a professional, timely, and competent manner. After receiving any products or services from orthobrain, Provider is free to alter those products and services in accordance with the needs of Provider's patients or customers.
3. Licensure and Professional Liability Insurance. As a condition of this Contractor Agreement, Provider shall maintain all applicable licenses and certification requirements and shall at all times during the term of this Contractor Agreement, meet all requirements of the State in which Provider resides or is located, and meet all requirements of other regulatory entities for such licensing, certification, or credentialing. Provider shall maintain in force throughout the term of this Contractor Agreement such policies of professional liability insurance as shall be required to qualify Provider for coverage under his or her state's Medical Malpractice Act or equivalent thereof (the "Act"), but in no event will Provider be covered for less than a million dollars (US$1,000,000.00) per occurrence. Provider shall insure that orthobrain is held harmless against any claim or claims for damage arising by reason of personal injuries or death occasioned directly or indirectly in connection with the performance of any service provided hereunder in such amount as shall be required from time to time under the Act. Provider shall demonstrate proof of such insurance coverage by providing orthobrain with a current certificate of insurance, which shows the applicable policy number, date of expiration, and name of the insurance carrier.
4. Representations of Provider. Provider represents and warrants that the following are true (if applicable): (a) Provider's license or certification in any state has never been suspended, revoked, restricted, or deemed to be probationary; (b) Provider has never been reprimanded, sanctioned, or disciplined by any licensing or accrediting board; (c) There has never been entered against Provider a final judgment in a professional liability action and no action, based on an allegation of professional liability or malpractice by the Provider has ever been settled by payment to the plaintiff; (d) Provider has never been denied membership or reappointment of membership on the medical staff of any hospital, and no clinical privileges of the Provider have ever been suspended, curtailed, or revoked; and (e) As of the date hereof, Provider has not been the subject of any report or disclosure submitted to the National Practitioner Data Bank.
5. Contract Rate. orthobrain shall be compensated for services performed under this Contractor Agreement as set forth in the order confirmation page when You confirm your order with orthobrain and click your acceptance to this Contractor Agreement.
6. Billing. orthobrain shall invoice Provider electronically or by other means. The order confirmation page shall also serve as your invoice. By indicating your acceptance of your order, you are authorizing payment to orthobrain. ALL INVOICES MUST BE PAID TO ORTHOBRAIN WITHIN 30 DAYS. ORTHOBRAIN WILL CHARGE INTEREST AT 3% PER MONTH FOR ANY BALANCE OVER 30 DAYS OLD.
7. Compliance with Laws. Provider agrees to comply with all federal and state laws or regulations applicable to the services to be provided under this Contractor Agreement. The Parties further agree that they will protect and secure the privacy and confidentiality of patient information and will comply with the requirements contained in the Business Associate Addendum, which is set forth below.
8. Debarment. Provider represents and warrants that Provider has never been sanctioned by the Office of Inspector General ("OIG") of the Department of Health and Human Services, barred from federal or state procurement programs, or convicted of a criminal offense with respect to health care reimbursement. Provider shall notify orthobrain immediately if the foregoing representation becomes untrue, or if Provider is notified by the OIG or other enforcement agencies that an investigation has begun which could lead to such sanction, debarment, or conviction.
9. Confidentiality. The Parties hereby acknowledge and agree that all services provided, and information exchanged under this Contractor Agreement shall be kept confidential and that neither Party shall disclose matters related to this Contractor Agreement without the expressed written consent of the other Party, unless required to disclose such information by statute, regulation or court order. In addition, during the term of this Contractor Agreement, each of the Parties hereto may receive intentionally or unintentionally certain proprietary and confidential information (which may include confidential medical information and records) not otherwise a part of public domain through no fault of a Party hereto ("Proprietary Information"), the disclosure of which would be extremely detrimental to the business affairs of the other. Therefore, each of the Parties hereto (for itself and its employees, agents and representatives) agrees to keep the Proprietary Information of the other in the strictest confidence and each agrees not to duplicate any Proprietary Information of the other and not to directly or indirectly divulge, disclose, reveal, report or transfer such Proprietary Information without the prior written consent of the other. This provision shall survive the termination of this Contractor Agreement.
10. Indemnity. Provider agrees to indemnify and hold harmless orthobrain, its employees, officers, trustees, affiliates, agents, and representatives from and against any losses, costs, damages, and expenses resulting from claims for bodily injury or property damage arising out of any services under this Contractor Agreement.
11. Term. This Contractor Agreement shall be effective beginning when Provider indicates acceptance of this Agreement.
12. Termination. Either Party may terminate this Contractor Agreement by providing thirty (30) days prior, written notice to the other Party, or by mutual assent of the Parties. Either Party may terminate this Contractor Agreement immediately as a result of a breach of any of the provisions or terms of this Contractor Agreement by the other Party if the breaching Party fails, after ten (10) days written notice, to cure such breach to the reasonable satisfaction of the non-breaching Party. orthobrain may terminate this Contractor Agreement immediately if any of the representations of Provider in paragraphs 3, 4 or 8 of this Contractor Agreement become untrue.
13. Notice. Any notice required to be provided to any Party to this Contractor Agreement shall be considered effective as of the date that it is emailed to the other Party. For any notice sent to orthobrain, Provider shall send the notice by email to firstname.lastname@example.org. For any notice sent to Provider, orthobrain shall send the notice by email to the email address that Provider has designated in the account that Provider has established with orthobrain.
14. Governing Law and Venue. The validity, construction and effect of this Contractor Agreement, and all extensions and modifications thereof, shall be construed in accordance with the laws of the State of Ohio without regard to its choice of law rules, and the Court of Common Pleas for Greene County, Ohio, shall be the exclusive venue for any suit, litigation or alternative dispute resolution brought pursuant to this Contractor Agreement. If orthobrain is required to file suit to recover payment of any invoice, orthobrain shall be entitled to recover its attorney’s fees incurred in any such suit.
15. Medical Records. Provider agrees to complete all required charting in the medical record in a prompt and timely manner. The ownership and right of control of all reports, records, and supporting documents prepared in connection with the services contemplated herein shall vest exclusively with Provider and shall remain, at all times, at the clinic where services are provided; provided, however, that orthobrain shall have such right of access to such reports, records, and supporting documentation as necessary for the provision of professional services hereunder. orthobrain shall also have the right to maintain a copy of all reports, records, and supporting documents for archival purposes.
16. No Assignment. Provider understands that, from time to time, orthobrain may enlist consultants or other independent contractors in providing professional services to Provider under this Contractor Agreement. Apart from this, neither this Contractor Agreement nor any rights or obligations hereunder shall be assigned by either Party without the prior written consent of the non-assigning Party.
17. Non-Solicitation. Provider understands and agrees that orthobrain expends significant time and resources to train consultants, other independent contractors, or employees that, from time to time, provide professional services for orthobrain. Consequently, for a period of one (1) year immediately following completion of services by orthobrain, Provider agrees that Provider will not solicit any employee, consultant, or other independent contractor of orthobrain. Provider further agrees that Provider shall not induce any employee, consultant, or other independent contractor of orthobrain to terminate employment with orthobrain or terminate or breach any contractual relationship between orthobrain and the employee, consultant, or other independent contractor of orthobrain. Because the value of the time and resources to train employees, consultants, or other independent contractors is difficult to quantify, if you Provider breaches this Non-Solicitation provision of this Contractor Agreement, then Provider agrees to pay liquidated damages of seventy-five thousand dollars ($75,000.00) to orthobrain, which Provider agrees is a reasonable amount to compensate orthobrain for its damages.
18. Entire Contractor Agreement. This Contractor Agreement, along with the Agreement for Use of orthobrain Website ("Website Agreement"), which is incorporated by reference in its entirety, constitutes the entire agreement of the Parties with respect to the matters contained herein, and supersedes any and all other discussions, statements, and understandings regarding such matters. To the extent that any provision of this Contractor Agreement irreconcilably conflicts with the Website Agreement, the provisions of the Website Agreement shall control. This Contractor Agreement shall be amended only upon the execution of a written agreement by both Parties hereto. A publication of a revised Contractor Agreement and Provider's indication of acceptance shall be considered an execution of a written agreement. Any attempt to amend or modify this Contractor Agreement in any manner other than by written instrument executed by the Parties shall be void.
19. No Third-Party Beneficiaries. Nothing express or implied in this Contractor Agreement is intended to confer, nor shall anything herein confer, upon any person other than the Parties and the respective successors or permitted assigns of the Parties, any rights, remedies, obligations, or liabilities whatsoever.
20. Miscellaneous: (a) If any provision of this Contractor Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions will nevertheless continue in full force without being impaired or invalidated in any way, and any invalid, void, or unenforceable provision shall be replaced to the maximum extent permitted by law with a valid and enforceable provision that most closely matches the intent of the original provision; and (b) Each Party to this Contractor Agreement acknowledges that no representations, inducements, promises, or agreements, orally or otherwise, have been made by either Party, or anyone acting on behalf of either Party, which are not embodied herein, and that no other arrangement, statement or promise not contained in this Contractor Agreement shall be valid or binding.
BUSINESS ASSOCIATE ADDENDUM
This Business Associate Addendum is entered into by and between You ("Provider") and orthobrain, LLC ("Business Associate") (each "Party", collectively "Parties").
The Parties have entered into a written agreement ("Contractor Agreement") under which the each of the Parties regularly receives, uses and/or discloses Protected Health Information ("PHI") in its performance of the services described in the Contractor Agreement. This Addendum sets forth the obligations and agreements of the Parties relating to compliance with the Standards for Privacy of Individually Identifiable Health Information ("the Privacy Regulation"), 45 C.F.R. Parts 160 and 164, and the Security Regulations (45 C.F.R. Parts 160, 162, and 164), promulgated under the Health Insurance Portability and Accountability Act of 1996 ("HIPAA"), the Health Information Technology for Economic and Clinical Health ("HITECH"), and various statutes governing personally-identifiable information ("PII") and PHI. This Addendum applies to all PHI and PII created or received by Business Associate from Provider or from another person or entity on behalf of Provider, and also all PHI and PII received by Provider from Business Associate or from another person or entity on behalf of Business Associate and governs how such PHI may be used or disclosed.
The Parties hereby agree as follows:
1. PERMITTED USES AND DISCLOSURES OF PROTECTED HEALTH INFORMATION ("PHI")
1.1 Business Associate shall be permitted to use and/or disclose PHI created or received on behalf of Provider, and Provider shall be permitted to use and/or disclose PHI received or created on behalf of Business Associate, for all purposes necessary to provide the services and to perform its obligations under the Contractor Agreement, provided that said use and/or disclosure complies with the requirements of HIPAA. The Parties acknowledge that under the requirements of HITECH, the HIPAA Privacy and Security Regulations apply to business associates and the additional privacy requirements set forth in HITECH apply to the Parties to the same extent that they apply to covered entities under HIPAA. The requirements of the HITECH statutes are incorporated herein by reference. In accordance with the applicable requirements of HITECH, any uses or disclosures of PHI must be limited, to the extent practicable, to the Limited Data Set, or, if needed to accomplish the purposes of this Addendum, to the minimum degree necessary to accomplish the intended purpose of such use or disclosure.
1.2 Subject to paragraph 1.1, The Parties may use PHI created or received, if necessary, for the proper management and administration of the operation of the Parties and to fulfill any current or future legal responsibilities of the Parties.
1.3 Subject to paragraph 1.1, the Parties may disclose PHI created or received, if necessary, for the proper management and administration of the operation of the Parties and to fulfill any current or future legal responsibilities of the Parties, provided:
1.3.1 The disclosure is Required by Law, or
1.3.2 The disclosing Party obtains satisfactory assurances from the person or entity to whom the PHI is disclosed that: (i) the PHI will be held confidentially and used or further disclosed only as Required by Law or for the purpose for which it was disclosed to the person or entity; and (ii) the disclosing Party will be notified of any instances of which the person is aware in which the confidentiality of the information is breached.
1.3.3 As of the effective date of the applicable HITECH regulations, the Parties shall not directly or indirectly receive remuneration in exchange for any PHI of an individual unless the Parties have obtained from the individual a valid authorization that includes specification of whether the PHI can be further exchanged for remuneration by either of the Parties.
2. RESPONSIBILITIES OF PARTIES WITH RESPECT TO PROTECTED HEALTH INFORMATION ("PHI")
2.1 Each Party agrees not to use or disclose PHI except as expressly permitted by this Addendum, HIPAA, or as Required by Law.
2.2 Each Party hereby agrees to maintain the security and privacy of all PHI in a manner consistent with federal and state laws and regulations, including but not limited to the HIPAA Privacy Regulations and the Security Regulations (45 C.F.R. Parts 160, 162, and 164) and HITECH, and each Party further agrees to use appropriate safeguards and security procedures to prevent use or disclosure of PHI not permitted by this Addendum.
2.3 Each Party shall not disclose PHI to any member of its workforce unless such member of its workforce has a need to use such PHI, and each Party has advised such person of the privacy and security obligations under this Addendum, including the consequences for violation of such obligations. Each Party shall take appropriate disciplinary action against any member of its workforce who uses or discloses PHI in violation of this Addendum or applicable law.
2.4 Each Party shall require all of its subcontractors and agents that receive or use, or have access to, PHI under this Addendum to agree, in writing, to adhere to the same restrictions and conditions on the use or disclosure of PHI that apply pursuant to this Addendum.
2.5. Each Party agrees to maintain a record of all disclosures of PHI, including disclosures not made for the purposes of this Addendum, and further agrees within ten (10) days of a written request from either Party, to provide to the requesting Party such information as is necessary to permit the other Party to respond to a request by an individual for an accounting of the disclosures of the individual's PHI in accordance with 45 C.F.R. Sec. 164.528. Each Party further agrees to comply with the requirements of HITECH to provide the other Party with an accounting of all disclosures made for treatment, payment and health care operations when the HITECH statute requiring such an accounting becomes applicable to the other Party. Each Party agrees to notify the other Party in advance of the applicability of this requirement.
2.6. Each Party agrees to report any unauthorized use or disclosure of PHI by its workforce, agents, or subcontractors and the remedial action taken or proposed to be taken with respect to such use or disclosure in accordance with the specific provisions of Section 2.11.
2.7 Each Party agrees to make its internal practices, books, and records relating to the use and disclosure of PHI available to the Secretary of the United States Department of Health and Human Services, for purposes of determining compliance with HIPAA.
2.8. Within thirty (30) days of a written request, each Party shall allow a person who is the subject of PHI, such person's legal representative, or the other Party to have access to and to copy such person's PHI. Each Party shall provide PHI in the format requested by such person, legal representative, or practitioner unless it is not readily producible in such format, in which case it shall be produced in standard hard copy format. Each Party acknowledges that HITECH requires the Parties to provide electronic health records to the individual in electronic format, and the Parties agree that to the extent applicable, the Parties will produce any PHI in electronic format in a manner requested by the individual who has made the request.
2.9 Within ten (10) days of a written request, the Party receiving the request shall make available PHI for amendment in accordance with 45 C.F.R. Sec. 164.526. Each Party further agrees to make such amendment to PHI within thirty (30) days of a written request.
2.10 Each Party shall implement appropriate administrative, physical and technical safeguards in order to preserve the confidentiality, integrity and availability of all PHI and to prevent any unauthorized use or disclosure of PHI, or any breach or security incident, or other material breach or violation of an underlying contract, this Addendum, HIPAA and HITECH involving said PHI. Each Party shall further:
2.10.1 Establish administrative, physical, and technical safeguards that reasonably and appropriately protect the confidentiality, integrity and availability of any electronic PHI that it creates, receives, maintains, or transmits on behalf of the covered entity as required by Sec. 164.314 of the Security Regulations.
2.10.2 Require all of its subcontractors and agents that receive, use or have access to PHI to implement reasonable and appropriate security safeguards to protect it from unauthorized use or disclosure, and to report any improper use or disclosure of PHI in the time and manner required herein.
2.10.3 Immediately report any unauthorized or improper use or disclosure of PHI, including without limitation, any security or privacy incident or breach involving the PHI ("Incident") without unreasonable delay, and not more than twenty-four (24) hours after it becomes aware of the Incident, and to provide notice and a report containing all information necessary to permit the Parties to timely comply with HIPAA notification provisions and its implementing rules or any other applicable reporting law, if necessary. Said report shall identify: (i) the known facts and circumstances related to the Incident; (ii) the individuals affected; (iii) the PHI that is known to be the subject of the Incident; (iv) the persons who are known to have information about the Incident; and (v) the corrective action taken or that will be taken to mitigate any deleterious effects of the Incident and to prevent future incidents. To the extent that each of the Parties must make its own notification involving any disclosure of PHI, the Parties agree to cooperate with each other regarding the notification process prior to making such notification.
2.10.4 Implement reasonable policies and procedures designed to detect and provide appropriate response to relevant "Red Flags" that identity theft may be occurring (as defined in 16 CFR 681.2) or that may arise in the performance of either Party's activities, if that Party has access to information protected under the Red Flag Rules. Each Party agrees to update periodically the policies and procedures to detect relevant "Red Flags." Each Party further agrees to notify the other Party of the detection of a Red Flag and to implement reasonable steps to prevent or mitigate identity theft.
3. TERM AND TERMINATION
3.1 This Addendum shall commence as of the date of the Contractor Agreement, and the obligations set forth in this Addendum shall continue in effect as long as either Party uses, discloses, creates, receives, or otherwise possesses any PHI created or received from or on behalf of the other Party and until all such PHI is destroyed or returned pursuant to the terms of this Addendum.
3.2 Either Party may immediately terminate this Addendum and the Contractor Agreement if it determines that the other Party has breached a material term of this Addendum. Alternatively, either Party may choose to: (i) provide the other Party an opportunity to cure said alleged material breach within ten (10) days. The failure to timely cure shall be grounds for immediate termination of this Addendum. The Parties' remedies under this Addendum are cumulative, and the exercise of any remedy shall not preclude the exercise of any other.
3.3. Upon termination of this Addendum, the Parties shall return or destroy, by rendering the PHI unusable, unreadable or undecipherable, or beyond the ability to recover, all PHI and the Parties shall retain no copies of such information. If the Parties mutually agree that return or destruction of PHI is not feasible, the Parties shall continue to maintain the security and privacy of such PHI in a manner consistent with the obligations of this Addendum and as required by applicable law and shall limit further use of the information to those purposes that make the return or destruction of the information infeasible. The duties hereunder to maintain the security and privacy of PHI shall survive the termination of this Addendum.
4. AMENDMENT TO ADDENDUM
The Parties may amend this Addendum by providing ten (10) days prior written notice and by mutual written agreement. Should the Parties be unable to agree to any amendment, each of the Parties shall have the option of terminating this Addendum.
Provider shall, to the fullest extent permitted by law, protect, defend, indemnify and hold harmless Business Associate and its his/her respective employees, directors, and agents ("Indemnitees") from and against any and all losses, costs, claims, penalties, fines, demands, liabilities, legal actions, judgments, and expenses of every kind (including reasonable attorneys fees, including at trial and on appeal) asserted or imposed against any Indemnitees arising out of the acts or omissions of Provider or any subcontractor of or consultant of Provider or any of Provider's employees, directors, or agents related to the performance or nonperformance of this Addendum
6. NO THIRD PARTY BENEFICIARIES
Nothing express or implied in this Addendum is intended to confer, nor shall anything herein confer, upon any person other than the Parties and the respective successors or permitted assigns of the Parties, any rights, remedies, obligations, or liabilities whatsoever.
7. LIMITATION OF LIABILITY
BUSINESS ASSOCIATE SHALL NOT BE LIABLE TO PROVIDER 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 BUSINESS ASSOCIATE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES.
8.1 Limited Data Set. "Limited Data Set" shall have the meaning set out in 45 C.F.R. Sec. 164.514(e)(2), as amended from time to time.
8.2 Protected Health Information or PHI. "Protected Health Information" or "PHI" shall have the meaning set out in 45 C.F.R. Sec. 160.103, as amended or revised from time to time.
8.3 Required by Law. "Required by Law" shall have the meaning set forth in 45 C.F.R. Sec. 164.103, as amended or revised from time to time.
Contractor Agreement and Addendum Last Updated: 2018 JULY 10.