Senior Whole Health, LLC and Senior Whole Health of New York, Inc. (collectively “SWH”) operate health plans through which SWH obtains information relating to the health, provision of health care, and/or payment for health care (collectively “Health Information”) of its enrollees (“SWH Members”). In order to improve the quality of care provided to SWH Members, SWH makes certain Health Information of SWH Members available in electronic form to SWH Members’ Health Care providers, practitioners or suppliers (“Providers”) and their Business Associates (“BAs”) (as such term is defined in the Health Insurance Portability and Affordability Act, the Health Information Technology for Economic and Clinical Health Act, and their implementing regulations (collectively “HIPAA”)) for use by Providers in treating the applicable SWH Members. SWH also offers or may plan to offer other on-line services to assist Providers and their BAs in providing care or obtaining payment for care provided to SWH Members. All of SWH’s on-line services, whether offered now or in the future, are referred to in this Agreement as the “Online Services.”
In order to access and use the Online Services, each applicable Provider/BA must agree to and affirmatively accept the terms of this Senior Whole Provider Portal User Agreement (the “Agreement”). If a Provider or BA does not agree to and affirmatively accept this Agreement, it will not be permitted to access or use the Online Services. In consideration of SWH’s permitting each applicable Provider and BA access to and use of the Online Services, the Provider /BA agrees as follows:
1. Qualifications: Any individual or entity accessing the Online Services pursuant to this Agreement represents and warrants that it qualifies as a Provider or BA. The Provider or BA represents, warrants and covenants that: (a) it is, and at all times during the term of this Agreement shall remain, a provider of medical and/or health services or a supplier of duly prescribed medical- or health-related drugs, devices, equipment or other items for SWH Members (collectively, “Health Care”), and is duly licensed or certified as such a provider or supplier as required by law, or that it is a HIPAA-compliant, properly appointed BA authorized to use the Online Services on behalf of such Provider(s), and (b) all information provided by Provider or BA in connection with its application to use the Online Services, including, without limitation, Medicare provider number, NPI number and tax identification number, is true, correct and accurate, and shall remain true, correct and accurate for the term of this Agreement. BA represents and warrants that it is the properly designated agent of Provider(s), that such Provider(s) have explicitly granted BA the right to access the Online Services on Provider(s)’ behalf, and that BA has the authority, and hereby does, bind such Provider(s) to the terms of this Agreement. The Provider/BA shall immediately notify SWH in writing and immediately cease use of the Online Services if it can no longer meet the requirements of this Agreement in general or this section specifically.
2. Use of the Services by Provider/BA: The Provider/BA may use the Online Services only: (a) to provide Health Care to SWH Members in accordance with the scope of the Provider’s license (if any), and all applicable laws and regulations governing the provision of Health Care by Provider, and (b) to obtain payment for Health Care. The Provider/BA must limit its access to and use of Health Information within the Online Services to what is reasonably necessary for these purposes. SWH may limit Provider’s/BA’s access to the Online Services based on the nature of the services that Provider/BA furnishes. Provider/BA will use the Online Services and the information obtained therefrom in compliance with all applicable laws, regulations, rules and governmental guidance. BA/Provider shall limit its use of the Online Services and the information obtained therefrom to that authorized by SWH Members or as otherwise permitted by law. Except as otherwise provided by law, BA shall limit its use of the Online Services and the information obtained therefrom to those purposes authorized by the Provider for the Provider’s legitimate purposes. Provider/BA will not use the Online Services for any unlawful purpose or any purpose not approved by SWH. Provider/BA will ensure that they properly and promptly logout after each session using the Online Services.
3. Use of the Services by Others: Subject to any requirements of applicable law, the Provider/BA may permit its workforce (employees and others subject to Provider’s/BA’s supervision and control) (“Workforce”) to have access to the Online Services for the purposes set forth in Section 2. Provider/BA shall ensure that terminated or resigning staff have their access to the Online Services deactivated concurrent with their departure from the Provider/BA, and that Provider/BA immediately notifies SWH of such departure. Provider/BA shall ensure that its workforce is properly trained in the use of the Online Services and Provider’s/BA’s obligations hereunder, and that such workforce agrees to comply with this Agreement.
4. Configuration: The Provider/BA and its workforce may access the Online Services only in the manner authorized by SWH, and may not attempt to alter or reconfigure their access rights or methods of access. The Provider/BA shall procure and use such computer hardware and software, and shall implement such security features, as SWH may require to ensure the security of the Online Services.
5. User names and Passwords: Each individual accessing the Online Services through Provider/BA must have their own individually unique user name and password for the Online Services. Provider/BA must ensure that individuals accessing the Online Services do not share or write down user names and passwords, and that each individual is accessing the Online Services only through their own user name and password. Provider/BA is solely responsible and liable for the security, protection, use and misuse of all user names and passwords created by individuals accessing the Online Services through Provider/BA.
6. Provider’s/BA’s Policies and Procedures: The Provider/BA must adopt appropriate physical, technical and administrative safeguards to implement its obligations under this Agreement, including restricting access to and use of the Online Services, assuring proper password management, and implementing appropriate personnel termination procedures.
7. Confidentiality/Privacy: Provider/BA will comply with all applicable federal, state and local laws, regulations and rules relating to the confidentiality and privacy of information obtained through the Online Services, including but not limited to HIPAA. To the extent required by law, BA has entered into a HIPAA compliant business associate agreement (as such term is defined in HIPAA) with all Providers for whom BA is using the Online Services.
8. Notification: The Provider/BA shall immediately notify SWH of any violation of this Agreement or any threat to the confidentiality or security of the Online Services or Health Information of SWH Members provided through the Online Services of which Provider/BA becomes aware. Provider/BA will immediately notify SWH of any known or suspected unauthorized use of the Provider’s/BA’s login credentials.
9. SWH’s Policies and Procedures: Provider/BA shall comply with all SWH policies and procedures from time to time furnished to Provider/BA by SWH in writing concerning the use of the Online Services.
10.Term and Termination: This Agreement shall continue until terminated by either party on thirty (30) days’ written notice to the other and will automatically terminate if Provider is no longer contracted with SWH to provide or arrange for the provision of covered services to SWH Members. SWH may terminate this Agreement immediately on notice to the Provider/BA if SWH determines that the Provider/BA has violated this Agreement, or that the continuation of this Agreement poses a threat to the security of the Online Services or to a SWH Member’s well-being. Upon termination of this Agreement, Provider/BA must immediately cease use of the Online Services and SWH will terminate the Provider’s/BA’s access to the Online Services.
11. Our Right to Manage the Site. SWH reserves the right, but does not undertake the obligation to: (a) monitor or review the Online Services for violations of this Agreement and for compliance with SWH’s policies; (b) report to law enforcement authorities and/or take legal action against anyone who violates this Agreement; (c) manage the Online Services in a manner designed to protect SWH’s, SWH Members’ and third parties’ rights and property or to facilitate the proper functioning of the Online Services; and (d) screen Providers/BAs that request access to the Online Services.
12. Disclaimer of Warranties. (a) THE ONLINE SERVICES, INCLUDING ANY INFORMATION PROVIDED THROUGH THE ONLINE SERVICES, ARE PROVIDED “AS IS” WITH NO REPESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. SWH CANNOT GUARANTEE AND DOES NOT PROMISE ANY SPECIFIC RESULTS FROM USE OF THE ONLINE SERVICES. PROVIDER/BA ASSUMES TOTAL RESPONSIBILITY AND RISK FOR ITS USE OF THE ONLINE SERVICES. (b) SWH MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY, RELIABILITY, TIMELINESS OR COMPLETENESS OF THE ONLINE SERVICES, OR ANY INFORMATION OR ANY OTHER ITEMS OR MATERIALS PROVIDED THROUGH THE ONLINE SERVICES. SWH ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (1) ERRORS, MISTAKES OR INACCURACIES OF CONTENT AND MATERIALS PROVIDED THROUGH THE ONLINE SERVICES, (2) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM PROVIDER’S/BA’S ACCESS TO AND USE OF THE ONLINE SERVICES, (3) ANY UNAUTHORIZED ACCESS TO OR USE OF THE SWH SERVERS AND/OR ANY AND ALL INFORMATION STORED THEREIN, (4) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE ONLINE SERVICES, (5) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH THE ONLINE SERVICES BY ANY THIRD PARTY, AND/OR (6) ANY ERRORS OR OMISSIONS IN ANY CONTENT AND MATERIALS OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE ONLINE SERVICES.
13. Indemnification: Provider/BA shall indemnify and defend SWH and its directors, managers, members, officers and employees from and against any claim, liability, fine, expense, damage or cost (including reasonable attorneys’ fees) arising out of: (1) the breach of this Agreement by Provider/BA, (2) any wrongful act or omission of Provider/BA or a member of Provider’s/BA’s workforce, (3) any violation of laws, regulations, rules or guidance by Provider/BA or a member of Provider’s/BA’s workforce, (4) any use of the Online Services or the information obtained therefrom by Provider/BA, and (5) any use of the Online Services or the information obtained therefrom by any individual or entity using Provider’s/BA’s login credentials.
14. Limitation of Liability. Provider/BA agrees that its sole remedy against SWH shall be termination of this Agreement pursuant to Section 10. UNDER NO CIRCUMSTANCES (INCLUDING BREACH OF THIS AGREEMENT) SHALL SWH BE LIABLE TO PROVIDER/BA FOR MONETARY DAMAGES OF ANY KIND, OR FOR ANY OBLIGATION OF INDEMNIFICATION OR CONTRIBUTION.
15. No third-party beneficiaries. There are no third-party beneficiaries of this Agreement.
16. Entire agreement; Amendments. This Agreement constitutes the entire agreement of the parties relating to its subject matter, and supersedes all prior agreements and representations. This Agreement may be amended only by a written instrument signed by the party to be bound; provided that SWH may amend this Agreement on 30 days’ written notice to the Provider/BA as it determines necessary to comply with applicable laws and regulations. Any such amendment shall become effective upon the expiration of the 30-day notice period, unless within that period Provider/BA gives notice of termination pursuant to Section 10.
17. Notices. Notices shall be deemed delivered when delivered personally in writing, or three (3) business days after deposit in the United States Mail, first class postage prepaid, and addressed to the parties at the address on file for each party.
18. Assignment. Provider/BA may not assign its rights under this Agreement without obtaining SWH’s prior written consent. Any assignment in violation of this Section shall be void.
19. Independent Contractors. Nothing in this Agreement shall be deemed to create an agency, partnership, joint venture, employer-employee or franchisor-franchisee relationship of any kind between SWH and Provider/BA.