Established: September 25, 2022

PLEASE READ THESE TERMS OF SERVICE CAREFULLY

Our Customer Terms of Service set forth the terms and conditions that govern our customers’ use of Bariatric Centers of America’s services. 

The first document in our Terms of Service is set for the fundamental legal and business terms that apply to all customers’ use of Bariatric Centers of America’s Services. Following this is the companion documents related to the protection of customer PHI, protection of BCA intellectual property, our menu of services/order form and our acceptable use policy (AUP).

While our goal is to make these documents and their associated terms as understandable as possible, in some cases the legalities may result in less than desired clarity/simplicity. By subscribing to our services, including any consultative and set-up services, you are agreeing to these terms. 

We update these terms periodically. All customers with an active subscription will receive our updated terms via in-app notification and/or email, depending upon your preference. 

1. Definitions

“Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with a party to this Agreement. For purposes of this definition, control means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

“Billing Period” means the period for which you agree to pay fees for our services. This will typically be the same length as the Subscription Term specified in your contract. If you contract for a one year Subscription, you are obligated to make twelve payments over the twelve month Billing Period.

“Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or a reasonable person would consider confidential. Confidential Information includes all information concerning: the Disclosing Party’s customers and potential customers, past, present or proposed products, marketing plans, engineering and other designs, technical data, business plans, business opportunities, finances, research, development, and the terms and conditions of this Agreement. Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party. Subject to the foregoing exclusions, Customer Data will be considered Confidential Information under this Agreement regardless of whether or not it is designated as confidential.

“Consulting Services” means the professional and technical services provided by BCA and/or its contractors to you, which can include training services, set-up, integration with other applications or other consulting services.

“Customer Data” means all information that you collect and/or use via the Subscription Service. Customer Data does not include BCA Content.

“Customer Materials” means all materials that you provide or post, upload, input or submit for public display through the Subscription Service.

“Order” or “Order Form” means the BCA-approved form or online subscription process by which you agree to subscribe to the Subscription Service and purchase Consulting Services. \

“Personal Data” means any information relating to an identified or identifiable individual where (i) such information is contained within Customer Data and (ii) is protected as personal data or personally identifiable information under applicable Data Protection Laws (as defined in the DPA).

“Protected Health Information” Under HIPAA, protected health information is considered to be individually identifiable information relating to the past, present, or future health status of an individual that is created, collected, or transmitted, or maintained by a HIPAA-covered entity in relation to the provision of healthcare, payment for healthcare services, or use in healthcare operations (PHI healthcare business uses). Health information such as diagnoses, treatment information, medical test results, and prescription information are considered protected health information under HIPAA, as are national identification numbers and demographic information such as birth dates, gender, ethnicity, and contact and emergency contact information. PHI relates to physical records, while ePHI is any PHI that is created, stored, transmitted, or received electronically. PHI only relates to information on patients or health plan members. It does not include information contained in educational and employment records, that includes health information maintained by a HIPAA covered entity in its capacity as an employer. PHI is only considered PHI when an individual could be identified from the information. If all identifiers are stripped from health data, it ceases to be protected health information and the HIPAA Privacy Rule’s restrictions on uses and disclosures no longer apply.

“Subscription Fee” means the amount you pay for the Subscription Service.

“Subscription Service” means all of our web-based applications, tools and platforms that you have subscribed to under an Order Form or that we otherwise make available to you, and are developed, operated, and maintained by us, accessible via www.bcofa.com or another designated URL.

“Subscription Term” means the initial term of your subscription to the applicable Subscription Service, as specified on your Order Form(s), and each subsequent renewal term (if any). For Free Services, the Subscription Term will be the period during which you have an account to access the Free Services.

“Third-Party Products” means non-embedded products and professional services that are provided by third parties which interoperate with or are used in connection with the Subscription Service. These products and services include non-BCA apps available from, for example, our marketplaces, directories, and links made available through the Subscription Service and non-BCA services.

“Third-Party Sites” means third-party websites linked to from within the Subscription Service, including Communications Services.

“Users” means your employees, representatives, consultants, contractors or agents who are authorized to use the Subscription Service for your benefit and have unique user identifications and passwords for the Subscription Service.

2. Authority of the Parties

2.1 Authority. Each party represents and warrants that it has full authority to enter into this Agreement and that it is binding and enforceable in accordance with its terms.

2.2 Independent Contractors. The sole relationship between Customer and BCA is that of independent contractors. Except as set forth herein with respect to the specific duties that BCA is authorized to perform on behalf of Customer as Customer’s agent, this Agreement is not intended, nor shall it be construed, to create any partnership, employment, agency or joint venture relationship between Customer and BCA or the employees of BCA.

2.3 No Control over Surgical Services. Physicians and any other physician employees of

Practice providing bariatric surgical services shall not be employees or contractors of BCA. Such physicians shall have control over the provision of all professional medical and surgical services rendered at Practice or any hospital at which such physicians provide services, and all diagnoses, tests or other professional medical or other clinical services shall be undertaken or directly supervised by the physicians as the physicians shall deem appropriate in their reasonable professional medical judgment. The provisions of this shall not permit the delegation to BCA of the Practice’s continuing obligation to clinically manage the care of its patients as required by controlling federal and state law, the requirements of any state medical board, the Medicare Conditions of Participation, The Joint Commission, and any other.

3. Responsibilities of Bariatric Centers of America

3.1 Books and Records: The books and business records, including patient medical records, of Physicians and the Customer shall be the property of Customer and under its ownership and control. Customer shall have unlimited and continuing access to inspect, copy, and audit any books and business records of Physicians or the Customer in BCA’s possession. Upon termination or expiration of this Agreement, BCA shall immediately return to Customer’s direct control any of Physicians’ or the Customer’s books, records, patient billing information, medical records and related data (whether written or electronic) and all copies thereof in BCA’s possession. BCA shall thereafter have no further rights to maintain or retain such records or copies of such records.

3.2 Non-Solicitation: BCA shall not, during the Term of this Agreement and for one year after the end of the Term of this Agreement, solicit any persons then currently employed by Practice. Solicitation, for the purpose of this agreement shall mean either party, or any of its or their employees, or someone at their direction, actively encouraging employees who are known to be working for the other party or affiliates to quit their employment with that party or affiliates or to accept employment with them

4. Customer Responsibilities

4.1 Access.

During the Subscription Term, we will provide your Users access to use the Subscription Service as described in this Agreement and the applicable Order. We provide this Subscription Service through customization of the BariNav system. You must ensure that all access, use and receipt by your Users is subject to and in compliance with this Agreement. 

4.2 Prohibited and Unauthorized Use. You will not use the Subscription Service in any way that violates the terms of the AUP or for any purpose or in any manner that is unlawful or prohibited by this Agreement. The Subscription Service is designed to comply with the Health Insurance Portability and Accountability Act (HIPAA) You will notify us promptly of any unauthorized use of your Users’ identifications and passwords or your account by emailing support@bcofa.com

4.3 Marketing and Branding.Trademark License Agreement. Physicians and Customers shall to the extent they desire maintain their own identity for marketing and branding in addition to participating in marketing and branding activities of BCA. Customer’s use in connection with its marketing and branding efforts of any trademarks, service marks, trade names and/or logos owned or licensed by BCA shall be pursuant to the terms and conditions of the “Trademark and Intellectual Property License Agreement” attached hereto.

4.4 Non-Solicitation. Neither Practice nor any Physician shall, during the Term of this Agreement and for one year after the end of the Term of this Agreement, solicit any persons then currently employed by BCA or any affiliate of BCA, which for these purposes shall specifically include Midtown Surgical Specialists, P.C. and Live Healthy MD, LLC. Solicitation, for the purpose of this agreement shall mean either party, or any of its or their employees, or someone at their direction, actively encouraging employees who are known to be working for the other party or affiliates to quit their employment with that party or affiliates or to accept employment with them.

5. Consultation and Management Fees

As consideration for the management services provided by BCA, Customer shall pay BCA consultation, licensing and subscription fees as herein set forth on their Order Form for access to and use of the BariNav platform, the strategic intent of which is “management of initial consult to surgery pipeline.” The Licensing and Subscription Fees shall be paid monthly within 15 days after Customer receives BCA’s invoice for services for the prior month. The monthly patient navigation and licensing fee will cover all subscription services listed on the Order Form, excluding services rendered as a one-time fee. All services that are conducted as a one-time fee will be billed separately and at an additional cost per hour of BCA staff time. Customers will also have access to any of the content produced by Bariatric Centers of America for use within their own bariatric program.

BariNav Order Form

Price Included in Monthly Fee

❏ Deployment of customized Bariatric patient tracking (BariNav) tool via highly customized instance of BariNav.

❏ Updates to workflows and processes to meet program criteria

❏ Build out of unique reports and dashboards within the CRM tool

❏  ______Number of BariNav Licenses 

❏ Marketing integration, without active in-bound marketing support

❏ ______ assigned phone numbers for SMS (one per coordinator + one clinic number)

❏ ______ SMS credits per month (one credit = 160 characters); Credit carry over each month

❏  Digital forms added to website

❏ Automated email campaigns to (re)engage patients along journey,

 

One Time Costs:

❏ Complete Customization of BariNav environment outside of minor revisions that would require a developer // Billed on an hourly rate of ~$150

❏ Additional SMS credits outside of the 1,000 allocated credits

❏ Content creation and curation specifically for Physician

❏ Other Patient Acquisition and Marketing supper services

Total Monthly Fee: $___________

6. Term and Termination

6.1 Term. The initial term of this Subscription Services Agreement shall begin on the date of this Agreement and shall be for one year.

6.2 Termination. The Agreement may be terminated as follows:

• Either party may terminate this Agreement immediately by delivering to the other party a written notice of termination if the other party commits a material breach of any provision of this Agreement and fails to cure that material breach no later than 30 days after the non-breaching party gives written notice of the material breach to the other party; provided, that if the party in breach is diligently pursuing a cure that cannot reasonably be completed within such 30-day period, then the party in breach shall be allowed such additional time as is reasonably necessary to complete such cure.
• Either party may terminate this Agreement upon five days’ notice by delivering to the other party a written notice of termination if the other party or any entity owned or controlled by the other party is excluded from participation in any governmental health care program.
• Either party may terminate this Agreement immediately in the event that any provision herein, or any action or course of action taken by a party to this Agreement in connection with its obligations hereunder, is determined by a federal or state court of competent jurisdiction or by a federal or state administrative tribunal or agency to be in violation of any federal or state law, rule or regulation.
• Either party may terminate this Agreement without cause and for any reason given a 90 day written notice.
• This Agreement shall terminate immediately upon the consent of both BCA and Customer.

6.3 Compensation Upon Termination. Within 30 days of the date of termination of this Agreement for any reason, Customer shall pay to BCA any amounts due BCA accrued through the date of termination.

6.4 Effect of Termination or Expiration. Upon the effective date of termination or expiration of this Agreement, the parties hereto shall have no further obligations to each other under this Agreement, except those which arose prior to the date of termination or expiration or as otherwise specifically stated in this Agreement. Customer may engage in a new and separate contract to continue other services that may be deemed appropriate. Customer will have access to any content they produce and their patient data and may continue to use BariNav pursuant to a separate intellectual property license agreement.

7. Confidentiality Obligations; Protected Health Information

7.1 Non Disclosure of Confidential Information

For purposes of this Agreement, “Confidential Information” shall mean, whether individually or as compiled, nonpublic information of any kind, including but not limited to pricing, cost or other financial data; terms or existence of managed care contracts; proprietary or trade secret information; BariNav customized coding; strategic business plans, marketing plans, financial forecasts or other competitively sensitive information; and, with respect to Customer and the Physicians, patient medical and billing records and other patient information relating to patients of the Customer created during the Term. This shall apply to any disclosure of Confidential Information by or on behalf of a party hereto to the other party hereto in oral, written, electronic or other form as well as to the discovery of Confidential Information of one party hereto by the other party hereto in connection with performance under this Agreement. This shall not apply to the exchange or disclosure of information that at the time of disclosure was in the public domain or subsequently becomes part of the public domain through no breach of this Agreement.

Except as required by law or as necessary to perform its obligations hereunder, neither party hereto shall disclose the terms of this Agreement or use or disclose any Confidential Information of the other party without the express written consent of the other party; provided, that each party hereto may disclose Confidential Information of the other party only: (i) to those of its employees, agents, subcontractors, professional advisors and independent contractors who are required to know such information for purposes of enabling the disclosing party to perform its obligations to the other party hereto or to pursue and evaluate the business relationship with the other party hereto and only so long as each person to whom such disclosure will be made is informed of the disclosing party’s obligations hereunder and agrees to be bound by the confidentiality provisions hereof; and (ii) as required by court order or other lawful process. In all such cases, each party hereto shall disclose or use the Confidential Information only to the extent required to fulfill such purpose or legal requirement.

BCA and Customer acknowledge and agree that the recovery of damages may not be an adequate means to redress a breach, and accordingly, the parties hereto specifically agree that each of them shall have the right of injunctive relief or specific performance as a result of a breach by the other. Nothing contained in this provision, however, shall prohibit any party hereto from pursuing any remedies in addition to injunctive relief or specific performance, including recovery of damages. This provision and the rights and obligations of the parties hereto under this shall survive the termination or expiration of this Agreement for any reason.

7.2 Security and Confidentiality of Protected Health Information. The parties hereby adopt and agree to the provisions set forth in the “HIPAA Business Associate Agreement,” which is attached hereto and incorporated by reference herein, with “Business Associate” meaning BCA, and “Covered Entity” meaning Customer.

8. Insurance and Indemnity

8.1 BCA’s Insurance. BCA shall, at its own expense, procure and maintain at all times during the Term: directors’ and officers’ liability insurance, including third-party employment Customer liability coverage, with respect to BCA’s consultative and management services under this Agreement, with deductibles and limits consistent with industry standards. Such insurance shall include all BCA communications to patients and prospective patients for purposes of education and navigation. Upon Customer’s request, BCA shall supply Customer with evidence of such coverage. BCA shall notify Customer of any cancellation of or material change in such insurance coverage at least 30 days prior to such cancellation or material change. If such coverage is written on a claims-made form following termination of this Agreement, then coverage shall survive for a period of not less than six years. The insurance coverage described above shall provide for a retroactive date of placement coinciding with the date hereof. In addition, BCA shall, at its own expense, procure and maintain at all times during the Term workers compensation insurance meeting statutory requirements and employer liability insurance coverage in commercially reasonable amounts with respect to BCA’s employees.

8.2 Customer’s Insurance. Customer shall, at its own expense, procure and maintain at all times during the Term: (a) professional liability insurance for all Physicians and its other employees in a minimum amount of $1,000,000 per occurrence and $3,000,000 in the aggregate; (b) commercial general liability insurance in a minimum amount of $1,000,000 per occurrence and $3,000,000 in the aggregate; (c) property and casualty insurance with deductibles and limits consistent with industry standards; and (d) workers compensation insurance meeting statutory requirements and employer liability insurance coverage in commercially reasonable amounts with respect to Customer’s employees. Upon BCA’s request, Customer shall supply BCA with evidence of such coverage. Customer shall notify BCA of any cancellation of or material change in such insurance coverage at least 30 days prior to such cancellation or material change. If such coverage is written on a claims-made form following termination of this Agreement, then coverage shall survive for a period of not less than six years. The insurance coverage described above shall provide for a retroactive date of placement coinciding with the date hereof. In addition, Customer shall, at its own expense, procure and maintain at all times during the Term workers compensation insurance meeting statutory requirements and employer liability insurance coverage in commercially reasonable amounts with respect to Customer’s employees

8.3 Indemnification.

1. To the fullest extent permitted by law, BCA shall indemnify Customer against any and all losses, damages, liabilities, costs and expenses of any kind or nature whatsoever, including reasonable attorneys’ fees, costs and expenses, incurred by Customer as a result of the breach by BCA or any employee, agent or independent contractor of BCA of the terms of this Agreement.
2. To the fullest extent permitted by law, Customer shall indemnify BCA against any and all losses, damages, liabilities, costs and expenses of any kind or nature whatsoever, including reasonable attorneys’ fees, costs and expenses, incurred by BCA as a result of the breach by Customer or any employee, agent or independent contractor of Customer of the terms of this Agreement.
3. This Section and the rights and obligations of the parties under this Section will survive the termination or expiration of this Agreement and will continue until the later of (i) three years after termination or expiration of this Agreement and (ii) the expiration of any applicable statute of limitations.
4. The obligations of indemnification hereunder shall be void and of no force or effect should such contractual indemnification abrogate or limit any party’s ability to make a claim under any policy of insurance.

9. Legal and Notice Requirements

9.1 Actions Permitted. Except for actions for nonpayment or breach of a party’s proprietary rights, no action, regardless of form, arising out of or relating to this Agreement may be brought by either party more than one (1) year after the cause of action has accrued.

9.2 Governing Law; Venue. This Agreement shall be construed and interpreted in accordance with the internal laws and judicial decisions of the State of Georgia. Any proceeding arising between the parties in any manner pertaining to this Agreement shall be held in the federal or state courts with geographic jurisdiction over Columbia County, Georgia, and the parties hereto irrevocably submit to subject matter and personal jurisdiction being exercised by, and venue being laid in, said courts.

9.3 Notice Requirements. The Noticing Party shall give notice to the other party hereto together with the following information:

• A description of the Legal Event(s) giving rise to the notice;
• The written opinion of independent legal counsel with expertise in the area of health care law and a national practice specializing in health care law, describing the Legal Event and the consequences or potential consequences of the Legal Event(s) as to the Noticing Party; and
• The Noticing Party’s intention to either: (i) amend the Agreement, together with a description of the terms of such amendment and the purposes thereof; or (ii) if the documentation from legal counsel referred to in item (b) above states that no amendment to the Agreement can reasonably avoid the material and adverse consequences of the Legal Event(s), terminate this Agreement.

10. General Provisions

10.1 Notices. Any notices or other communications required or contemplated under the provisions of this Agreement shall be in writing and delivered in person, evidenced by a signed receipt; or mailed by certified mail, return receipt requested, postage prepaid; or sent by prepaid express delivery service, to the persons and addresses indicated below or to such other persons or addresses as Practice and BCA may provide by written notice to the other. The date of notice shall be the date of delivery if the notice is personally delivered or sent by prepaid express delivery service, or the date of mailing if the notice is mailed by certified mail.

10.2 Force Majeure. Except for payment obligations of amounts due under this Agreement, neither party will be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions; pandemic; or other event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event.

10.3 Third-Party Beneficiary Preclusion; Guaranty. This Agreement is entered into by and between Practice and BCA solely for their benefit and shall not insure to the benefit of any third parties. Notwithstanding the foregoing, the signatures of each Physician hereto acknowledge the Practice’s obligations and represent the joint and several unconditional guaranty of Practice’s obligations by Physicians and each of them.

10.4 Assignment. This Agreement and the rights and obligations of Practice and BCA hereunder may not be assigned or delegated in whole or in part, directly or indirectly, without the prior written consent of the other party hereto; provided, however, that BCA may assign this Agreement to any person or entity purchasing substantially all of the assets of, and accepting assignment of substantially all of the liabilities of, BCA.

10.5 Waiver of Breach. The waiver by either party hereto of a breach or violation of any provision of this Agreement shall not operate as, or be construed to be, a waiver of any subsequent breach of the same or of any other provision.

10.6 Severability. If any provision of this Agreement shall for any reason be held invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision of this Agreement, but this Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein, unless the invalidity of any such provision substantially deprives either party hereto of the practical benefits intended to be conferred by this Agreement.

10.7 Force Majeure. Neither party hereto shall be liable for or deemed to be in default for any delay or failure to perform any act under this Agreement (except for the payment of money) resulting, directly or indirectly, from acts of God, pandemic, civil or military authority, acts of a public enemy, war, terrorism, accidents, fires, explosions, earthquake, flood, failure of transportation, strikes or other work stoppages by the employees of either party hereto, or any other cause beyond the reasonable control and expectation of such party. Any delay in performance which is excused pursuant to this Section 9.7 which exceeds a period of 60 days shall constitute grounds for termination of this Agreement as of the end of such 60-day period at the option of either party hereto.\

10.8 Construction. In construing this Agreement, the following principles shall be followed: (a) no consideration shall be given to the captions of the Articles or Sections, which are inserted for convenience in locating the provisions of this Agreement and not as an aid in construction; (b) no consideration shall be given to the fact or presumption that any party hereto had a greater or lesser hand in drafting this Agreement; (c) examples shall not be construed to limit, expressly or by implication, the matter they illustrate; (d) the word “includes” and its syntactic variants mean “includes, but is not limited to” and corresponding syntactic variant expressions; (e) the plural shall be deemed to include the singular, and vice versa; (f) each gender shall be deemed to include the other gender; (g) if a term is defined as one part of speech (such as a verb), it shall have a corresponding meaning when used with respect to another part of speech (such as a noun) or when used in a different tense; and (h) any reference in this Agreement to any Article or Section refers to the corresponding Article or Section of this Agreement.

10.9 Entire Agreement. This Agreement, including all the exhibits incorporated herein by reference, the Business Associate Agreement, and the Trademark License Agreement constitute the entire agreement and understanding between the parties hereto with respect to the subject matter hereof and supersede all prior and contemporaneous understandings and agreements with respect to the subject matter hereof, written or oral, and shall not be modified or altered except by written instrument duly executed by the parties hereto.