VTConnect Terms & Conditions


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VTConnect Enterprise Services Agreement

PLEASE READ THE FOLLOWING ONLINE ENTERPRISE SERVICES AGREEMENT (“AGREEMENT”) WHICH GOVERNS YOUR AND YOUR COMPANY’S (TOGETHER “COMPANY”) USE OF THE SERVICES AVAILABLE ON THIS WEBSITE, CURRENTLY LOCATED AT WWW.VTCONNECT.NET (“SITE”).  THE SITE IS OWNED BY VIRTUAL THERAPY CENTER, LLC (“VTC” “we” and “us”).  PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY.  COMPANY MUST ACCEPT THESE TERMS BEFORE IT IS ALLOWED TO USE THE SERVICES ON THE SITE.  COMPANY ALSO AGREES TO ABIDE BY THE PRIVACY POLICY FOR THIS SITE.

BY CLICKING THE CHECKBOX TO ACCEPT COMPANY AGREES TO BE BOUND BY THESE TERMS AND CONDITIONS AS WELL AS THE PRIVACY POLICY FOR THIS SITE.

Definitions
  1. “Content” means all text, documents, images, and other materials that are available or become available on this Site.
  2. “Logon Credentials” means the User ID and password assigned to, or chosen by Practitioner or other authorized Company user (“Client”) when registering on the Site.
  3. “PHI” is Personal Health Information and has the meaning set forth under HIPAA and HITECH (as these terms are defined in the section entitled “Site User Information”).
  4. “Practitioner” means the service provider delivering Services through the Site. 
  5. “Services” means any part of the virtual video and chat services, including administrative tools, provided by a Practitioner through the Site.
  6. “Site” means vtconnect.net, portal.vtconnect.net/[uniqueorganizationURL] or any other website hereinafter incorporated into the Services.
  7. “Site User” means a user of the Site that has secured, or whose parent/guardian has secured, Logon Credentials and has selected or been assigned a Practitioner for purposes of receiving Services.

Services

  1. Grant of Rights. VTC grants Company a non-exclusive, non-transferable, limited right to access, use and display the Site and the Content for its business purposes only. Company agrees that it will not, nor will its Practitioners interrupt, or attempt to interrupt, the operation of the Site in any way.  VTC reserves the right to restrict Company access to part of, or the entire Site at any time without notice or liability in the event Company or its Practitioners are found to be tampering, interfering with or otherwise attempting to interrupt the running of the Site.
  2. Linking To Third Party Sites. The Site may contain links and pointers to other sites on the Internet that may be maintained by third parties. These links are not controlled by VTC and do not constitute an endorsement by us. We do not control, and are not responsible for, the availability, accuracy, or currency of such third-party sites or any information, content, products or services accessible from such third-party sites. Once Company or its Practitioners leave the Site and go to another site, those sites have terms and conditions that likely differ from the provisions provided on the Site. VTC is not responsible for, and expressly disclaims any and all liability related to actions of such linked sites, and their terms and conditions.
  3. Reservation of Rights. All rights not expressly granted herein are reserved to VTC.  Company shall not, and will insure that its Practitioners do not attempt to sublicense, distribute, lease, or otherwise make available the Services to any third parties. 

Representations and Warranties

VTC represents and warrants that: (i) all of the Services will be rendered in a competent and professional manner; (ii) it will comply with all applicable federal, state, and local laws and regulations in its performance hereunder; (iii) it has not entered into, and will not enter into during the term of this Agreement any other contracts which may interfere with performance of this Agreement; and (iv) the Services will materially comply with the requirements set forth in the applicable SOW.

    Payment

    1. When Company accepts the terms of this Agreement and registers to use the Site, Company is agreeing to pay fees to use the Site by credit card (“Service Fees). Company will provide VTC’s authorized third party payment processor (“Payment Processor”) with Company credit card information. VTC does not keep Company credit card information on file, but the Payment Processor does and it will bill Company credit card for the Service Fees less any applicable discount codes applied during initial purchase, on or about the same day of the month that Company registered to use the Site (e.g., if Company registered on the 18th of April, Company will be billed on or about the 18th of May, June, etc.).  When Company terminates this Agreement, our Payment Processor will delete Company credit card information within a reasonable period of time, as they determine. The Service Fees schedule is provided to Company as a separate document, and is available HERE. 
    2. Audit. No more than once per year upon no less than fourteen (14) days’ notice, VTC may, on its own or through a third party, perform an audit of Company’s use of the Site and Company’s compliance with the provisions of this Agreement.  Any such audit may take place either remotely or at Company’s site, and if on-site shall occur at times agreed to by the Parties, with neither Party to unreasonably withhold or delay its agreement.  Company shall be liable to VTC for use of the Site or Services that exceeds the applicable limitations and restrictions set forth herein.

    Term and Termination

    (a)           Either Company or VTC may terminate this Agreement upon thirty (30) days prior written notice.  However, if VTC reasonably believes that Company is breaching the terms of this Agreement or otherwise engaging in behavior VTC deems unacceptable or in appropriate while using the Services, in VTC’s sole discretion, VTC may suspend or terminate access to the Site upon notice.

     (b)          Upon termination Company will immediately: (1) cease all activities authorized by this Agreement; (2) delete or remove from all computer equipment, and immediately destroy all instances or return all copies of the Proprietary Information; and (3) pay for Services rendered through the termination date, the Fees for which shall become immediately due and payable.

    Confidentiality

    (a)           The parties acknowledge that during the term of this Agreement each party (“Receiving Party”) will have access to Confidential Information and Trade Secrets of the other party (“Disclosing Party”) (“Proprietary Information”). The parties agree: (1) to hold the Proprietary Information in the strictest confidence, (2) not to, directly or indirectly, copy, reproduce, distribute, manufacture, duplicate, reveal, report, publish, disclose, cause to be disclosed, or otherwise transfer the Proprietary Information to any third party, (3) not to make use of the Proprietary Information other than for the permitted purposes of this Agreement, and (4) to disclose the Proprietary Information only to employees, contractors, and representatives requiring such material for effective performance of this Agreement who have undertaken a written obligation of confidentiality and limitation of use consistent with this Agreement.  The parties will be entitled to injunctive relief, in addition to any other remedies available, for violation of this Confidentiality Section. This obligation will continue for two (2) years following termination of this Agreement for Confidential Information and for as long as allowed under applicable law with respect to Trade Secrets.

    (b)           “Confidential Information” means any data or information of Company or its customers that is provided to VTC, that is valuable to its owner and not generally known by the public, including without limitation, any data or information defined herein as a Trade Secret, but which is determined by a court not to be trade secret under applicable law.

    (c)            “Trade Secret” means any information of Company or its customers that is provided to VTC, without regard to form, which: (a) derives economic value, actual or potential, from not being generally known to, and not being readily ascertainable through proper means by, other persons who can obtain economic value from its disclosure or use, and (b) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

    Site User Information

      When potential Site Users register for the Site, VTC collects certain personal information from such Site User, which may include personal health information (“Site User Registration Information”).  At such time as the Site User connects with, or is connected to a Practitioner, such Practitioner and Company will get access to the Site User Registration Information.  Practitioner and Company are jointly and severally responsible for maintaining the security and confidentiality of any Site User Registration Information and any other personal information of the Site User, including personal health information (“PHI”) that Site User provides as required by applicable laws and regulations, including without limitation, the requirements of the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), the Health Information Technology for Economic and Clinical Health Act of 2009 (“HITECH”) and the Children’s Online Privacy Protection Act of 1998 (“COPPA”).  Practitioner, or Company, as the case may be, may only use PHI, Site User Registration Information and any other personal information disclosed by a Site User for the purposes which it was disclosed.

      Ownership of Intellectual Property

        Each party shall own its intellectual property pre-existing prior to the Effective Date of this Agreement, as well as any intellectual property it creates during the term of this Agreement.  No license or other ownership rights are granted to the other party hereunder.

        Proprietary Rights and Third Party Content

          The Site and the Content (excluding Third Party Content as defined below), (“Copyrighted Material”) are all the copyrights of VTC. You hereby acknowledge the confidentiality of the Copyrighted Material and agree to maintain its confidentiality. You agree not to use any Copyrighted Material, except as set forth herein, without the prior written permission of VTC.

          All trademarks and service marks used on the Site are owned by VTC or authorized third parties. Company agrees not to use any marks contained on this Site without the prior written permission of VTC.  Company may display the VTC logo so long as it complies with any usage guidelines that VTC provides from time to time.

          Company understand and acknowledge that the Site and the Content may include data, statistics, articles and other information supplied by third parties ("Third Party Content”). Third Party Content is the intellectual property of those third parties and is used by VTC under license. 

          Minimum Use Requirements

            In order to receive the Services Company must satisfy the Minimum Use Requirements for computer hardware and software.

            Use of Site and Services by Minors

              Company may offer the Services a Site User that is under age thirteen (13) years old (“minor child”) only if it has complied with the requirements of the Children’s Online Privacy Protection Act (“COPPA”).  Such requirements include, without limitation, parental or guardian consent.  Company represents and warrants that it has or will comply with such requirements before providing access to a minor child.  Company’s failure to comply with COPPA will be a material breach of this Agreement.  VTC WILL IMMEDIATELY TERMINATE COMPANY’S ACCESS TO THE SERVICES AND THE SITE FOR VIOLATION OF THIS PROVISION. 

              Indemnification

              Each party agree to indemnify, defend, and hold harmless the other party, its employees, directors, agents, representatives, contractors, and assignees, from and against any and all third party claims, liabilities, losses and damages, together with costs and expenses (including reasonable attorneys’ fees), arising directly or indirectly from such party’s performance or violation of any of such party’s obligations under this Agreement. 

              Limitation of Liability
                • THE LIMIT OF EACH PARTY’S LIABILITY (WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY IN TORT OR BY STATUTE OR OTHERWISE) IN ANY MANNER RELATED TO THIS AGREEMENT, FOR ANY AND ALL CLAIMS SHALL NOT EXCEED THE TOTAL AMOUNT OF THE FEES PAID OR PAYABLE TO EMPLOYEE MAX UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING SUCH CLAIM.
                • IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES ARISING OUT OF SUCH PARTY’S PERFORMANCE OR NONPERFORMANCE OF OBLIGATIONS HEREUNDER, INCLUDING WITHOUT LIMITATION LOST PROFITS, LOSS OF DATA, INFORMATION AND DATA SECUIRTY, AND LOSS OF BUSINESS, EVEN IF SUCH PARTY HAS BEEN ADVISED OF, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. 
                • VTC has taken reasonable steps to ensure the confidentiality, security, and privacy of the Site, and has implemented security measures designed to protect all data collected against unauthorized access.  VTC DOES NOT WARRANT SECURITY OF THE SITE, AND OTHER THAN AS SET FORTH HEREIN, THE SITE IS PROVIDED AS IS WITH NO WARRANTY OF ANY KIND.
                • COMPANY TAKES FULL RESPONSIBILITY FOR THE SECURITY OF ANY COMMUNICATIONS OR TREATMENT ON ITS OR ITS PRACTITIONER’S COMPUTERS AND IN ITS OWN PHYSICAL LOCATION. Company will defend, indemnify and hold VTC and its affiliates, officers, directors, employees, agents and representatives harmless from and against all damages, costs, expenses, and liabilities, including, without limitation, reasonable attorney’s fees and expenses, arising from claims of third parties and as a direct result of its use of the Site.
                Modifications to the Site

                  VTC reserves the right at any time to modify, suspend or discontinue any aspect or feature of the Site or Services including, but not limited to, Content, hours of availability and equipment and/or software required for access or use of this Site.

                  Privacy Policy

                    Company agrees to the terms of the Privacy Policy as it may be updated from time to time.

                    Miscellaneous                                                                                 

                    (a)      Assignment. This Agreement may be assigned by either party only with the prior written consent of the other party, which will not be unreasonably withheld or delayed, provided, that such written consent will not be required if a party desires to assign this Agreement (i) pursuant to a reorganization or a sale of all or substantially all of the stock or assets of the assignor or (ii) to an affiliated entity which assumes and can fulfill all of the assigning party’s responsibilities hereunder.

                    (b)      Survival. The terms, conditions and warranties of this Agreement that by their sense and context are intended to survive this Agreement shall survive the completion of the performance, cancellation, expiration or termination of this Agreement.  Except as expressly provided in this Agreement, the termination of this Agreement or expiration of the Term for any reason shall not release any party from any obligation under this Section.

                    (c)      Force Majeure. No party shall be liable for failure to perform or delay in performing all or any part of its obligations under this Agreement to the extent that such failure or delay is due to any cause or circumstance reasonably beyond the control of such party including, without limitation, acts of God, fire, flood, storms, earthquake, strike or other labor dispute, acts of terrorism, government requirement, or civil or military authority. The party affected by such an event shall promptly notify the other party in writing. The party so affected shall take reasonable steps to resume performance with the least possible delay.

                    (d)      Entire Agreement. This Agreement (together with all Exhibits) sets forth the entire understanding between the parties and supersedes any and all oral or written agreements or understandings between the parties as to the subject matter of this Agreement.

                    (e)      Amendments. This Agreement may not be amended, modified or superseded, unless expressly agreed to in writing by both parties.

                    (f)      Governing Law. This Agreement shall be in all respects governed by the laws of the State of Virginia, without reference to its conflicts of laws. Each party submits to the exclusive jurisdiction of the courts of the State of Virginia and the United States District Court for the Eastern District of Virginia. Each party expressly waives any and all rights to bring any action in or before any court other than those of the State of Georgia.   Each of the parties expressly waives any and all objections such party may have to venue, including, without limitation, the inconvenience of such forum, in any of such courts.

                    (g)      Relationship between the Parties. The parties to this Agreement are independent contractors and nothing in this Agreement will be construed as creating an employment relationship, joint venture, partnership, agency or fiduciary relationship between the parties.  No party has any right or power under this Agreement to create any obligation, expressed or implied, or any obligation or liability, or to otherwise bind the other party.

                    (h)      Contact Information. Company may contact VTC through the website, via regular mail at Virtual Therapy Connect, 42395 Ryan Road, Suite 112, #615, Ashburn, VA 20148-4858, or at support@VTConnect.net.

                    (i)      Severability and Waiver. If any provision of this Agreement is determined to be invalid by any court of final jurisdiction, then it shall be omitted and the remainder of the Agreement shall continue to be binding and enforceable. In addition, the Court is hereby authorized to enforce any provision of the Agreement that the Court otherwise deems unenforceable, to whatever lesser extent the Court deems reasonable and appropriate, rather than invalidating the entire provision. Except where otherwise provided, the waiver or failure of either party to exercise in any respect any right provided under this Agreement shall not be deemed a waiver of any further right under this Agreement.

                    (j)      Headings. The section and paragraph headings used in this Agreement are inserted for convenience only and will not affect the meaning or interpretation of this Agreement.
                    Binding Effect. This Agreement will inure to the benefit of and be binding upon each of the successors and permitted assigns of the parties hereto.

                    (k)      Binding Effect. This Agreement will inure to the benefit of and be binding upon each of the successors and permitted assigns of the parties hereto.

                      Business Associate Agreement for VTConnect Customers

                      This Business Associate Agreement (the “Agreement”) is entered into as of the date you click the checkbox to "Accept" and "Subscribe" to execute this Agreement, by and between the company or person executing this Agreement (“Covered Entity”), and Virtual Therapy Center, LLC, (“Business Associate”), each a “Party” and collectively, the “Parties.”

                      WHEREAS, Covered Entity is a covered entity as defined in the federal regulations at 45 C.F.R. Parts 160 and 164 (the “Privacy Standards”) promulgated pursuant to the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) and the Health Information Technology for Economic and Clinical Health Act of 2009 (“HITECH”);

                      WHEREAS, pursuant to HIPAA and HITECH the U.S. Department of Health & Human Services (“HHS”) promulgated the Privacy Standards and the security standards at 45 C.F.R. Parts 160 and 164 (the “Security Standards”) requiring certain individuals and entities subject to the Privacy Standards and/or the Security Standards to protect the privacy and security of certain individually identifiable health information (“Protected Health Information” or “PHI”), including electronic protected health information (“EPHI”);

                      WHEREAS, the Parties wish to comply with Privacy Standards and Security Standards as amended by the HHS regulations promulgated on January 25, 2013, entitled the “Modifications to the HIPAA Privacy, Security, Enforcement, and Breach Notification Rules Under the Health Information Technology for Economic and Clinical Health Act and the Genetic Information Nondiscrimination Act,” as such may be revised or amended by HHS from time to time;

                      WHEREAS, in connection with Business Associate’s performance under its agreement(s) and/or other documented arrangements between Covered Entity and Business Associate (collectively “Business Arrangements”), Business Associate may provide services for, or on behalf of, Covered Entity that require Business Associate to use, disclose, access, create, maintain and/or transmit health information that is protected by state and/or federal law; and

                      WHEREAS, Covered Entity desires that Business Associate use and disclose PHI and/or EPHI in accordance with the terms specified herein, and the Parties desire to enter into this Agreement;

                      NOW, THEREFORE, in consideration of the mutual promises set forth in this Agreement and the Business Arrangements, and other good and valuable consideration, the sufficiency and receipt of which are hereby severally acknowledged, the parties agree as follows:

                      1. Business Associate Obligations. Business Associate may use, disclose, access, create, maintain and/or transmit health information that is protected under applicable state and/or federal law, including without limitation, PHI and EPHI. Virtual Therapy Center, LLC acknowledges and agrees it meets the definition of a “business associate” at 45 C.F.R. §160.103. All capitalized terms not otherwise defined in this Agreement shall have the meanings set forth in the Privacy Standards, Security Standards or the HITECH Act, as applicable (collectively referred to hereinafter as the “Confidentiality Requirements”).  All references to PHI herein shall be construed to include EPHI.  PHI shall mean only that PHI Business Associate uses, discloses, accesses, creates, maintains and/or transmits for or on behalf of Covered Entity pursuant to the Business Arrangements. Business Associate agrees not to use or disclose (or permit the use or disclosure of) PHI in a manner that would violate the Confidentiality Requirements if the PHI were used or disclosed by Covered Entity in the same manner.  To the extent the Business Associate is to carry out Covered Entity’s obligations under the Confidentiality Requirements, the Business Associate shall comply with the provision(s) of the Confidentiality Requirements that would apply to the Covered Entity in the performance of such obligation(s).

                      2. Use of PHI. Except as otherwise required by law, Business Associate shall use PHI in compliance with 45 C.F.R. § 164.504(e). Business Associate agrees not to use (or permit the use of) PHI in a manner that would violate the Confidentiality Requirements if the PHI were used by the Covered Entity in the same manner. Furthermore, Business Associate shall use PHI: (i) solely for Covered Entity’s benefit and only for the purpose of performing services for, or on behalf of, Covered Entity as such services are defined in Business Arrangements, and (ii) as necessary for the proper management and administration of the Business Associate or to carry out its legal responsibilities, provided that such uses are permitted under federal and state law. Covered Entity shall retain all rights in the PHI not granted herein. Except as necessary to perform services for Covered Entity under the Business Arrangements, Business Associate may not de-identify PHI or other identifiable data without the express written authorization of Covered Entity. All de-identification of PHI must be performed in accordance with the Confidentiality Requirements, specifically, 45 C.F.R.§164.514(b).

                      3. Disclosure of PHI.

                      3.1. Subject to any limitations in this Agreement, Business Associate may disclose PHI to any third party as necessary to perform its obligations under the Business Arrangements and as permitted or required by applicable federal and state law. Business Associate agrees not to disclose (or permit the disclosure of) PHI in a manner that would violate the Confidentiality Requirements if the PHI was disclosed by the Covered Entity in the same manner.  Further, Business Associate may disclose PHI for the proper management and administration of the Business Associate, provided that: (i) such disclosures are required by law, or (ii) Business Associate: (a) obtains reasonable assurances from any third party to whom the information is disclosed that it will be held confidential and further used and disclosed only as required by law or for the purpose for which it was disclosed to the third party; and (b) requires the third party to agree to immediately notify Business Associate of any instances of which it is aware that PHI is being used or disclosed for a purpose that is not otherwise provided for in this Agreement or for a purpose not expressly permitted by the Confidentiality Requirements.  Business Associate shall report to Covered Entity any use or disclosure of PHI not permitted by this Agreement of which it becomes aware.  Such report shall be made as soon as practical of the Business Associate becoming aware of such use or disclosure.
                      3.2. If Business Associate uses or contracts with any agent, including a subcontractor (collectively, “Subcontractors”) that uses, discloses, accesses, creates, receives, maintains, or transmits PHI on behalf of Covered Entity, Business Associate shall require its Subcontractors to agree in writing to the same restrictions and conditions that apply to the Business Associate under this Agreement; specifically, Business Associate agrees to enter into business associate agreements with its Subcontractors that meet the requirements of the Confidentiality Requirements; including but not limited to 45 C.F.R.§§164.314, 164.410, 164.502 and 164.504(e).  In addition to Business Associate’s obligations under Section 9, Business Associate agrees to mitigate, to the extent practical and unless otherwise requested by Covered Entity in writing, any harmful effect that is known to Business Associate and is the result of a use or disclosure of PHI by Business Associate or any Subcontractors in violation of this Agreement.  Additionally, Business Associate shall ensure that all disclosures of PHI by Business Associate and the third party comply with the principle of “minimum necessary use and disclosure,” (i.e., in accordance with 45 C.F.R. §164.502(b), only the minimum PHI that is necessary to accomplish the intended purpose may be disclosed).

                      4. Individual Rights Regarding Designated Record Sets. If Business Associate maintains a Designated Record Set on behalf of Covered Entity, Business Associate shall: (i) provide access to, and permit inspection and copying of, PHI by Covered Entity under conditions and limitations required under 45 C.F.R.§164.524, as it may be amended from time to time, and (ii) amend PHI maintained by Business Associate as requested by Covered Entity. Business Associate shall respond to any request from Covered Entity for access by an Individual within a reasonable time period of such request and shall make any amendment requested by Covered Entity.  Any information requested under this Section 4 shall be provided in the form or format requested, if it is readily producible in such form or format. Business Associate may charge a reasonable fee based upon the Business Associate’s labor costs in responding to a request for electronic information (or a cost-based fee for the production of non-electronic media copies). Business Associate shall notify Covered Entity of receipt of any request for access or amendment by an Individual. Covered Entity, not Business Associate, shall determine whether to grant or deny any access or amendment requested by the Individual.

                      5. Accounting of Disclosures. Business Associate shall make available to Covered Entity in response to a request from an Individual, information required for an accounting of disclosures of PHI with respect to the Individual in accordance with 45 CFR §164.528 (or such shorter time as may be required by state or federal law).  Business Associate shall provide to Covered Entity such information necessary to provide an accounting within thirty (30) days of Covered Entity’s request or such shorter time as may be required by state or federal law. Such accounting must be provided without cost to the Individual or to Covered Entity if it is the first accounting requested by an individual within any twelve (12) month period. For subsequent accountings within a twelve (12) month period, Business Associate may charge a reasonable fee based upon the Business Associate’s labor costs in responding to a request for electronic information (or a cost-based fee for the production of non-electronic media copies) so long as Business Associate informs the Covered Entity and the Covered Entity informs the Individual in advance of the fee, and the Individual is afforded an opportunity to withdraw or modify the request. Such accounting obligations shall survive expiration or termination of this Agreement and shall continue as long as Business Associate maintains PHI.

                      6. Records and Audit. Business Associate shall make available to HHS or its agents, its internal practices, books, and records relating to the use and disclosure of PHI received from, created, or received by Business Associate on behalf of Covered Entity for the purpose of determining Covered Entity’s compliance with the Confidentiality Requirements, in a time and manner designated by HHS. Except to the extent prohibited by law, Business Associate agrees to notify Covered Entity immediately upon receipt by Business Associate of any and all requests by or on behalf of any and all federal, state and local government authorities served upon Business Associate for PHI.

                      7. Implementation of Security Standards; Notice of Security Incidents. Business Associate will comply with the Security Standards and, by way of example and not limitation, use appropriate safeguards to prevent the use or disclosure of PHI other than as expressly permitted under this Agreement.  In accordance with the Security Standards, Business Associate will implement administrative, physical, and technical safeguards that protect the confidentiality, integrity and availability of the PHI that it uses, discloses, accesses, creates, receives, maintains or transmits.  To the extent feasible, Business Associate will use commercially reasonable efforts to ensure that the technology safeguards used by Business Associate to secure PHI will render such PHI unusable, unreadable and indecipherable to individuals unauthorized to acquire or otherwise have access to such PHI in accordance with HHS Guidance published at 74 Federal Register 19006 (April 17, 2009) or such later regulations or guidance promulgated by HHS or issued by the National Institute for Standards and Technology (“NIST”) concerning the protection of identifiable data such as PHI.  Business Associate will promptly report to Covered Entity any Security Incident of which it becomes aware; provided, however, that Covered Entity acknowledges and shall be deemed to have received notice from Business Associate that there are routine occurrences of: (i) unsuccessful attempts to penetrate computer networks or services maintained by Business Associate; and (ii) immaterial incidents such as “pinging” or “denial of services” attacks.  At the request of Covered Entity, Business Associate shall identify:  the date of the Security Incident, the scope of the Security Incident, Business Associate’s response to the Security Incident, and to the extent permitted by law, the identification of the party responsible for causing the Security Incident, if known.

                      8. Data Breach Notification and Mitigation.

                      8.1. HIPAA Data Breach Notification and Mitigation.  Business Associate agrees to implement reasonable systems for the discovery and prompt reporting of any “breach” of “unsecured PHI” as those terms are defined by 45 C.F.R. §164.402 (hereinafter a “HIPAA Breach”). The Parties acknowledge and agree that 45 C.F.R. §§164.404 and 164.410, as described below in this Section 8.1, govern the determination of the date of a HIPAA Breach.  In the event of any conflict between this Section 8.1 and the Confidentiality Requirements, the more stringent requirements shall govern. Business Associate will, following the discovery of a HIPAA Breach, notify Covered Entity as soon as practical and in no event later than thirty (30) business days after Business Associate discovers such HIPAA Breach, unless Business Associate is prevented from doing so by 45 C.F.R. §164.412 concerning law enforcement investigations. For purposes of reporting a HIPAA Breach to Covered Entity, the discovery of a HIPAA Breach shall occur as of the first day on which such HIPAA Breach is known to the Business Associate or, by exercising reasonable diligence, would have been known to the Business Associate. Business Associate will be considered to have had knowledge of a HIPAA Breach if the HIPAA Breach is known, or by exercising reasonable diligence would have been known, to any person (other than the person committing the HIPAA Breach) who is an employee, officer or other agent of the Business Associate.  As soon as practical but no later than forty (45) days following a HIPAA Breach, Business Associate shall provide Covered Entity with sufficient information to permit Covered Entity to comply with the HIPAA Breach notification requirements set forth at 45 C.F.R. §164.400 et seq. Specifically, if the following information is known to (or can be reasonably obtained by) the Business Associate, Business Associate will provide Covered Entity with to the extent known: (i) contact information for individuals who were or who may have been impacted by the HIPAA Breach (e.g., first and last name, mailing address, street address, phone number, email address); (ii) a brief description of the circumstances of the HIPAA Breach, including the date of the HIPAA Breach and date of discovery; (iii) a description of the types of unsecured PHI involved in the HIPAA Breach (e.g., names, social security number, date of birth, address(es), account numbers of any type, disability codes, diagnostic and/or billing codes and similar information); (iv) a brief description of what the Business Associate has done or is doing to investigate the HIPAA Breach, mitigate harm to the individual impacted by the HIPAA Breach, and protect against future HIPAA Breaches; and (v) appoint a liaison and provide contact information for same so that the Covered Entity may ask questions or learn additional information concerning the HIPAA Breach.  This Section 8.1 shall survive the expiration or termination of this Agreement and shall remain in effect for so long as Business Associate maintains PHI.

                      9. Term and Termination.

                      9.1. Termination. This Agreement shall commence on the Effective Date and shall remain in effect until terminated in accordance with the terms of this Section 9; provided, however, that termination shall not affect the respective obligations or rights of the parties arising under this Agreement prior to the effective date of termination, all of which shall continue in accordance with their terms.

                      9.2. Termination for Cause.  Either Party may immediately terminate this Agreement as set forth in this Section 9.2 (“Terminating Party”) and shall have no further obligations to the other Party (“Terminated Party”) hereunder if either of the following events have occurred and are continuing to occur:

                      i. The Terminated Party fails to observe or perform any material covenant or obligation contained in this Agreement for ten (10) days after written notice thereof has been given to the Terminated Party; or
                       
                      ii. The Terminated Party materially violates any provision of the Confidentiality Requirements or other applicable federal or state privacy law relating to the obligations of the Terminated Party under this Agreement.
                       

                      9.3. Covered Entity May Terminate Business Arrangements in Event of for Cause Termination. Termination of this Agreement for either of the two reasons set forth in Section 9.2 above shall be cause for Covered Entity to immediately terminate for cause any Business Arrangement pursuant to which Business Associate is entitled to receive PHI from Covered Entity.

                      9.4. Termination Upon Conclusion of Business Arrangements.  Upon the termination of all Business Arrangements, either Party may terminate this Agreement by providing written notice to the other Party.

                      9.5. Return of PHI Upon Termination.  Upon termination of this Agreement for any reason, Business Associate agrees either to return to Covered Entity or to destroy (at the discretion of Business Associate) all PHI received from Covered Entity or otherwise through the performance of services for Covered Entity, that is in the possession or control of Business Associate or its agents.  In the case of PHI which is not feasible to return or destroy, Business Associate shall extend the protections of this Agreement to such PHI and limit further uses and disclosures of such PHI to those purposes that make the return or destruction infeasible, for so long as Business Associate maintains such PHI.  Business Associate further agrees to comply with other applicable state or federal law, which may require a specific period of retention, redaction, or other treatment of such PHI.  This Section 9.5 shall survive the expiration or termination of this Agreement and shall remain in effect for so long as Subcontractor maintains PHI.

                      10. Ineligible Persons. Business Associate represents and warrants to Covered Entity that Business Associate, its directors, officers, and key employees: (i) are not currently excluded, debarred, or otherwise ineligible to participate in any federal health care program as defined in 42 U.S.C. Section 1320a-7b(f) or any state healthcare program (collective, the “Healthcare Programs”); (ii) have not been convicted of a criminal offense related to the provision of health care items or services and not yet been excluded, debarred, or otherwise declared ineligible to participate in the Federal Healthcare Programs, and (iii) are not under investigation or otherwise aware of any circumstances which may result in Business Associate being excluded from participation in the Federal Healthcare Programs (collectively, the “Warranty of Non-exclusion”).  Business Associate’s representations and warranties underlying the Warranty of Non- exclusion shall be ongoing during the term, and Business Associate shall immediately notify Covered Entity of any change in the status of the representations and warranties set forth in this Section 10.  Any breach of this Section 10 shall give Covered Entity the right to terminate this Agreement immediately for cause.

                      11. Miscellaneous. This Section 11 shall survive the expiration or termination of this Agreement and shall remain in effect for so long as Business Associate maintains PHI.

                      11.1.  Notice.  All notices, requests, demands and other communications required or permitted to be given or made under this Agreement shall be in writing, shall be effective upon receipt or attempted delivery, and shall be sent by: (i) personal delivery; (ii) certified or registered United States mail, return receipt requested; (iii) overnight delivery service with proof of delivery; or (iv) facsimile with return facsimile acknowledging receipt. Notices shall be sent to the addresses below. Neither Party shall refuse delivery of any notice hereunder. 

                      COVERED ENTITY: Contact Information on File

                      BUSINESS ASSOCIATE:

                      Virtual Therapy Center, LLC
                      ATTN: Martha Ireland
                      42395 Ryan Road
                      Suite 112, #615
                      Ashburn, VA 210148-4858
                      11.2.  Waiver.  No provision of this Agreement or any breach thereof shall be deemed waived unless such waiver is in writing and signed by the Party claimed to have waived such provision or breach. No waiver of a breach shall constitute a waiver of or excuse any different or subsequent breach.
                      11.3.  Assignment.  Neither Party may assign (whether by operation of law or otherwise) any of its rights or delegate or subcontract any of its obligations under this Agreement without the prior written consent of the other Party. Notwithstanding the foregoing, Covered Entity shall have the right to assign its rights and obligations hereunder to any entity that is an affiliate or successor of Covered Entity, whether by merger, acquisition, change in control, or other transaction involving the sale of all or substantially all of Covered Entity’s assets, without the prior approval of Business Associate.
                      11.4.  Severability.  Any provision of this Agreement that is determined to be invalid or unenforceable will be ineffective to the extent of such determination without invalidating the remaining provisions of this Agreement or affecting the validity or enforceability of such remaining provisions.
                      11.5.  Entire Agreement. This Agreement constitutes the complete agreement between Virtual Therapy Center, LLC and Covered Entity relating to the matters specified in this Agreement and supersedes all prior representations or agreements, whether oral or written, with respect to such matters. This Agreement constitutes the complete agreement between Virtual Therapy Center, LLC and Covered Entity relating to the matters specified in this Agreement and supersedes all prior representations or agreements, whether oral or written, with respect to such matters.  In the event of any conflict between the terms of this Agreement and the terms of the Business Arrangements or any such later agreement(s), the terms of this Agreement shall control unless the terms of such Business Arrangements are more strict with respect to PHI and comply with the Confidentiality Requirements, or the Parties specifically otherwise agree in writing.  No oral modification or waiver of any of the provisions of this Agreement shall be binding on either Party to this Agreement; provided, however, that upon the enactment of any law, regulation, court decision or relevant government publication and/or interpretive guidance or policy that Covered Entity believes in good faith will adversely impact the use or disclosure of PHI under this Agreement, Covered Entity may amend the Agreement to comply with such law, regulation, court decision or government publication, guidance or policy by delivering a written amendment to Business Associate which shall be effective thirty (30) calendar days after receipt.  No obligation on either Party to enter into any transaction is to be implied from the execution or delivery of this Agreement. This Agreement is for the benefit of, and shall be binding upon the Parties, their affiliates and respective successors and assigns.
                      11.6.  Governing Law. This Agreement shall be governed by, and interpreted in accordance with, the laws of the state in which Covered Entity is located, excluding its conflicts of law provisions. Jurisdiction and venue for any dispute relating to this Agreement shall exclusively rest with the state and federal courts in the county in which Covered Entity is located.
                      11.7.  Nature of Agreement; Independent Contractor.  Nothing in this Agreement shall be construed to create: (i) a partnership, joint venture or other joint business relationship between the parties or any of their affiliates, or (ii) a relationship of employer and employee between the parties. Business Associate is an independent contractor and not an agent of Covered Entity. This Agreement does not express or imply any commitment to purchase or sell goods or services.
                      11.8.  Counterparts. This Agreement and any amendments hereto may be executed by the Parties hereto individually or in any combination, in one or more counterparts, each of which shall be an original and all of which shall together constitute one and the same agreement.  Execution and delivery of this Agreement and any amendments by the Parties shall be legally valid and effective through: (i) executing and delivering the paper copy of the document,  or (ii) transmitting the executed paper copy of the document by facsimile transmission or electronic mail in “portable document format” (“.pdf”) or other electronically scanned format.