Terms of Service


These Terms of Service, including but not limited to the provisions of the Business Associate Agreement contained in Section 30 below (“BAA”) (hereinafter collectively the "Agreement") are a contract between you and Utila, LLC ("Utila"), and govern your use of the Utila.us website ("Website"), Utila Software and Servers (hereinafter collectively the "Service"), your rights and obligations with respect to User Data that you place in the Service, and associated Intellectual Property Rights thereto, as well as your creation of an account by which you will access the Service, (hereinafter an "Account") for use in connection with the Service. By checking the box that states “I agree to the Terms of Service” on the Provider Registration page, Administrator Registration page, and/or by accessing or using the Service at any time, you are agreeing to be legally bound by all of the provisions of this Agreement. This Agreement may subsequently be modified by Utila effective immediately by notifying you as provided in Section 28 below. By continuing to access or use the Service after the effective date of any such change, you will be agreeing to be legally bound by all of the provisions of this Agreement, as modified by Utila.

1. Definitions for purposes of this Agreement.


  • "Website" means the websites and services available from the domain and subdomains of Utila.us and any related or successor domains from which Utila may offer services;
  • "Utila Software" is the software provided to you by Utila and/or its suppliers under license in connection with the Service;
  • "Servers" are the online environments that support the Service;
  • "User Data" means any data that you upload or submit to the Servers, Website, or other areas of the Service, including but not limited to Protected Health Information as that term is defined below;
  • "Intellectual Property Rights" means copyrights, trademarks, service marks, trade dress, publicity rights, database rights, patent rights, and other intellectual property rights or proprietary rights recognized by law;
  • "HIPAA" means the Health Insurance Portability and Accountability Act of 1996;
  • "Protected Health Information" or "PHI" means protected health information as defined by HIPAA's Privacy Rule found at 45 C.F.R. ¤ 160.103;


2. Verification for Utila.


By accepting this Agreement in connection with an Account, you represent that you are at least 18 years of age, or the legal age of majority where you reside if that jurisdiction has an older age of majority, and you have the legal authority to enter into this Agreement. You further agree that as a condition to accessing Utila, you will submit to account verification as required by Utila, and provide only true and accurate identification documentation to Utila or its third party service providers to verify your age and other Account related information.

3. Establishing an Account.


You must establish an Account with Utila to use the Service. Only one person may use an Account. You agree to provide accurate, current and complete information about yourself as prompted by the registration form ("Registration Data") and to use the account management tools provided to keep your Registration Data accurate, current and complete. You must choose an account name to identify yourself to Utila in connection with your Account (your "Account Name").

4. Responsibility for Use of Account.


You are responsible for all activities conducted through your Account. In the event that fraud, illegality or other conduct that violates this Agreement is discovered or reported (whether by you or someone else) that is connected with your Account, Utila may suspend or terminate your Account as described in Section 20.

5. Selection and Use of Account Password.


At the time your Account is created, you must select a password. You are responsible for maintaining the confidentiality of your password and are responsible for any harm resulting from your disclosure, or authorization of the disclosure of your password or from any person's use of your password to gain access to your Account or Account Name. At no time should you respond to an online request for a password other than in connection with the log-on process to the Service. Your disclosure of your password to any other person is at your own risk.

6. Fees and Billing.


(a)Utila provides the Service for the fees and other charges set forth on the Utila.us web site. Utila may add new services for additional fees and charges, or prospectively amend fees and charges for existing services. You acknowledge that it is your responsibility to ensure payment in advance for all paid aspects of the Service, and to ensure that your credit or debit cards or other payment instruments accepted by Utila continue to be valid and sufficient for such purposes. Utila may exercise its suspension or termination rights as provided in Section 20 in the event of any payment delinquency.

7. Modification of Service.


Utila reserves the right to add, modify, or eliminate aspect(s), features or functionality of the Service from time to time for the purposes of compliance with applicable laws and regulations, to effect improvements in security and functionality, to correct errors, or for other commercially reasonable purposes.

8. Protected Health Information, User Data and Use of Your Information.


Utila will make no use of PHI that is not permitted by this Agreement or that is prohibited by applicable law, including but not limited to HIPAA. In the event that Utila receives a subpoena or other order issued by or under authority of a court of competent jurisdiction compelling the disclosure of any PHI, Utila will notify you of the subpoena or order prior to disclosing the PHI to provide you with an opportunity to intervene or otherwise prevent the disclosure. Utila will make commercially reasonable efforts to maintain the Service in a manner that includes appropriate administrative, technical and physical security measures designed to protect the confidentiality, availability and integrity of PHI as required by HIPAA. In the event of termination of this Agreement, other than by your breach of this Agreement, the Utila Software will enable you to retrieve your User Data contained within the Service at the date of termination. In the event of termination of this Agreement for breach, Utila will at your written request provide you with a file or files containing the User Data contained within the Service at the date of termination, provided that you make the make the request within 15 days after the date of termination. With respect to User Data other than PHI, Utila will comply with the terms of its Privacy Policy.

9. No Responsibility for Acts of Omissions of Third Party Websites.


The Service may contain links to or otherwise allow connections to third-party websites, servers, and online services or environments that are not owned or controlled by Utila. You agree that Utila is not responsible or liable for the content, policies, or practices of any third-party websites, servers, or online services or environments. Please consult any applicable terms of use and privacy policies provided by the third party for such websites, servers, or online services or environments.

10. Your Rights and Obligations with Respect to Your Data.


You retain any and all Intellectual Property Rights you already hold under applicable law in User Data you upload or submit to the Service, subject to the rights, licenses, and other terms of this Agreement. In connection with User Data you upload or submit to the Service, you affirm, represent, and warrant that you own or have all necessary Intellectual Property Rights, licenses, consents, and permissions to use and authorize Utila to use the User Data in the manner contemplated by the Service and this Agreement. You agree that by uploading or submitting any Content to or through the Servers, Website, or other areas of the Service, you hereby automatically grant Utila a non-exclusive, worldwide, royalty-free, sublicenseable, and transferable license to use, reproduce, distribute, prepare derivative works of, and display the User Data non-publicly and internally to Utila solely for the purposes of providing the Service. You agree that the license includes the right to copy, analyze and use any of your User Data as Utila may deem necessary or desirable for purposes of debugging, testing, or providing support or development services in connection with the Service and future improvements to the Service. The license granted in this Section is referred to as the "Service Data License." You also acknowledge that the Service Data License granted to Utila with respect to your Content will survive the termination of your Account to permit Utila: (i) to retain server copies of particular instances of your User Data, including copies stored in connection with back-up, debugging, and testing procedures; and (ii) to enable the exercise of the licenses granted in this Section for any other copies or instances of the same User Data that you have not specifically deleted from the Service.

11. Interruption of Service.


Utila may on occasion need to interrupt the Service with or without prior notice to protect the integrity or functionality of the Service. You agree that Utila will not be liable for any interruption of the Service (whether intentional or not), and you understand that you will not be entitled to any refunds of fees or other compensation for interruption of service. Likewise, you agree that in the event of loss of any User Data, we will not be liable for any purported damage or harm arising therefrom.

12. Utila's Intellectual Property Rights and Limited License Granted to You.


Utila owns Intellectual Property Rights in and to the Service, except all User Data, including the Utila Software, the Websites and the Servers, and in and to our trademarks, service marks, trade names, logos, domain names, taglines, and trade dress (collectively, the "Utila Marks"). You understand that such Intellectual Property Rights are apart from any rights you may have in User Data you upload or submit to the Service, as discussed above. You acknowledge and agree that Utila and its licensors own all right, title, and interest in and to the Service, including all Intellectual Property Rights therein, other than with respect to User Data. Except as expressly granted in this Agreement, all rights, title, and interest in and to the Service, except all User Data, and in and to the Utila Marks are reserved by Utila. Copyright, trademark and other laws of the United States and foreign countries protect the Service and the Utila Marks. Utila hereby grants you a non-exclusive, non-transferable, non-sublicenseable, limited, revocable license to access and use the Service as set forth in these Terms of Service and expressly conditioned upon your Account remaining active, in good standing, and in full compliance with these Terms of Service. You agree that you will not (i) allow any person or entity not authorized by Utila to use or access the Utila Software, (ii) attempt to copy any ideas, features, functions or graphics contained in the Service; (iii) use the Utila Software in the operation of a service bureau, an application service provider or for any other purpose intended to benefit a party other than you, (iv) alter or modify the Utila Software, (v) sell, assign, sublicense, rent, lease or otherwise transfer the Utila Software or any rights in connection therewith, or (vi) attempt to translate, disassemble, decompile, reverse assemble, reverse engineer all or any part of the Service or otherwise attempt to derive the source code for the Utila Software.

13. Your Obligations with Respect to the Intellectual Property Rights of Third Parties.


You agree that you will not upload, publish, or submit to any part of the Service any User Data that is protected by Intellectual Property Rights or otherwise subject to proprietary rights, including trade secret or privacy rights, unless you are the owner of such rights or have permission from the rightful owner to upload or submit the User Data and to grant Utila all of the license rights granted in this Agreement. You agree that Utila will have no liability for, and you agree to defend, indemnify, and hold Utila harmless for, any claims, losses or damages arising out of or in connection with your use of any User Data.

14. Prohibited Conduct While using the Service.


  • Post, display or transmit Data that violates any law, or the rights of any third party including without limitation Intellectual Property Rights;
  • Impersonate any person or entity without their consent, or otherwise misrepresent your affiliation;
  • Post or transmit viruses, Trojan horses, worms, spyware, time bombs, cancelbots, or other computer programming routines that may harm the Service or interests or rights of other users, or that may harvest or collect any data or personal information about other users without their consent;
  • Engage in malicious or disruptive conduct that impedes or interferes with other users' normal use of the Service; or
  • Attempt to gain unauthorized access to any other user's Account, password or User Data, or allow more than one person to use an Account.


16. Releases.


You agree not to hold Utila liable for the Content, actions, or inactions of other users of the Service or of other third parties. As a condition of access to the Service, you release Utila (and its officers, directors, shareholders, agents, subsidiaries, and employees) from claims, demands, losses, liabilities and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with any dispute you have or claim to have with one or more other users of the Service or with other third parties, including whether or not Utila becomes involved in any resolution or attempted resolution of the dispute. If you are a California resident, you waive California Civil Code Section 1542, which says: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor." If you are a resident of another jurisdiction, you waive any comparable statute or doctrine.

17. Disclaimer of Other Express and Implied Warranties.


UTILA WARRANTS THAT DURING THE TERM OF THIS AGREEMENT, THE UTILA SOFTWARE WILL FUNCTION IN SUBSTANTIAL CONFORMANCE TO THE SPECIFICATIONS SET FORTH AT UTILA.COM SUBJECT ONLY TO THE FOREGOING WARRANTY AND THE WARRANTIES CONTAINED IN SECTION 8, UTILA PROVIDES THE SERVICE, INCLUDING WITHOUT LIMITATION THE UTILA SOFTWARE, THE WEBSITES, THE SERVERS, AND YOUR ACCOUNT, STRICTLY ON AN "AS IS" BASIS, AND HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES OR CONDITIONS OF ANY KIND, WRITTEN OR ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF TITLE, NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NO VALUE, EITHER EXPRESS OR IMPLIED, IS GUARANTEED OR WARRANTED WITH RESPECT TO ANY CONTENT. NOTWITHSTANDING ANY INTELLECTUAL PROPERTY RIGHTS YOU MAY HAVE IN YOUR USER DATA OR ANY EXPENDITURE ON YOUR PART, UTILA AND YOU EXPRESSLY DISCLAIM ANY COMPENSABLE VALUE RELATING TO OR ATTRIBUTABLE TO ANY DATA RELATING TO YOUR ACCOUNT RESIDING ON UTILA' SERVERS. YOU ASSUME ALL RISK OF LOSS FROM USING THE SERVICE ON THIS BASIS. Utila does not ensure continuous, error-free, secure or virus-free operation of the Service, the Utila Software, the Websites, the Servers, or your Account, and you understand that you shall not be entitled to refunds or other compensation based on Utila's failure to provide any of the foregoing other than as explicitly provided in this Agreement. Some jurisdictions do not allow the disclaimer of implied warranties, and to that extent, the foregoing disclaimer may not apply to you. Utila does not guarantee that by mere use of the Utila Software you will be in compliance with HIPAA, and you understand and agree that you are responsible for maintaining any other administrative, technical and physical measures required to maintain appropriate information security with respect to your PHI and to otherwise comply with HIPAA.

18. Limitation of Liability.


IN NO EVENT SHALL UTILA OR ANY OF ITS DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, SUBSIDIARIES, AGENTS OR LICENSORS BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, RELIANCE, PUNITIVE OR EXEMPLARY DAMAGES OR DISGORGEMENT OR COMPARABLE EQUITABLE REMEDY, INCLUDING WITHOUT LIMITATION ANY DAMAGES FOR LOST DATA OR LOST PROFITS, ARISING (WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE) OUT OF OR IN CONNECTION WITH THE SERVICE (INCLUDING ITS MODIFICATION OR TERMINATION), THE UTILA SOFTWARE, THE WEBSITES, THE SERVERS, YOUR ACCOUNT (INCLUDING ITS TERMINATION OR SUSPENSION) OR THIS AGREEMENT, WHETHER OR NOT UTILA MAY HAVE BEEN ADVISED THAT ANY SUCH DAMAGES MIGHT OR COULD OCCUR AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY. IN NO EVENT WILL UTILA'S CUMULATIVE LIABILITY TO YOU EXCEED THE GREATER OF (i) ONE HUNDRED FIFTY DOLLARS (U.S. $150.00); OR (ii) THE RELEVANT AMOUNT SET FORTH IN SECTION 11 HEREIN, IF APPLICABLE. Some jurisdictions do not allow the foregoing limitations of liability, so to the extent that any such limitation is found to be impermissible, such limitation may not apply to you.

19. Indemnification.


At Utila's request, you agree to defend, indemnify and hold harmless Utila, its officers, directors, shareholders, employees, subsidiaries, and agents from all damages, liabilities, claims and expenses, including without limitation attorneys' fees and costs, arising from: (i) any breach or alleged breach by you of this Agreement, including without limitation your representations and warranties relating to your Data; or (ii) your acts, omissions or use of the Service, including without limitation your negligent, willful or illegal conduct. We reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with our defense of such claim.

20. Legal Relationship Between You and Utila; No Third Party Beneficiaries.


You acknowledge that your participation in the Service, including your creation or uploading of Content in the Service, does not make you a Utila employee and that you do not expect to be, and will not be, compensated by Utila for such activities, and you will make no claim inconsistent with these acknowledgements. In addition, no agency, partnership, joint venture, franchise relationship is intended or created by this Agreement. There are no third party beneficiaries, intended or implied, under this Agreement.

21. Suspension and Termination of Accounts.


You may terminate this Agreement by closing your Account at any time for any reason. Subject to Utila's obligations pursuant to Section 8, in such event, Utila shall have no further obligation or liability to you under this Agreement or otherwise. Utila may suspend or terminate your Account for breach if you violate this Agreement, including any terms regarding payment of required fees and charges due under this Agreement. We may suspend or terminate your Account if we determine in our discretion that such action is necessary or advisable to comply with legal requirements or protect the rights or interests of Utila or any third party. In such event, you will not be entitled to compensation for such suspension or termination, and you acknowledge Utila will have no liability to you in connection with such suspension or termination.

22. Termination of Licenses Upon Termination of Account.


Upon termination of your Account, all licenses granted by Utila to use the Service will automatically terminate.

23. Liability for Unpaid Fees Upon Termination of Account.


Upon termination, you will remain liable for any unpaid amounts owed by you to Utila.

24. Survival of Terms After Termination.


The following terms will survive any termination of this Agreement: Sections 8, 10, 12, 15 and 18.

25. Dispute Resolution and Arbitration.


In the event of a dispute between you and Utila, other than with respect to claims for injunctive relief, the dispute will be resolved by binding arbitration pursuant to the rules of the American Arbitration Association Commercial Arbitration Rules. The place of the arbitration shall be in Los Angeles, California. In the event that there is any dispute between you and Utila that is determined not to be subject to arbitration pursuant to the preceding sentence, you agree to submit in that event to the exclusive jurisdiction and venue of the state and federal courts located in the City and County of Los Angeles, California. You agree that this Agreement and the relationship between you and Utila shall be governed by the laws of the State of California without regard to conflict of law principles or the United Nations Convention on the International Sale of Goods. Notwithstanding this, either party shall still be allowed to apply for injunctive or other equitable relief to protect or enforce that party's Intellectual Property Rights in any court of competent jurisdiction where the other party resides or has its principal place of business.

26. Disclaimer of Warranties as to Use Outside of the United States.


Utila is a United States-based service. Utila makes no representation that any aspect of the Service is appropriate or available for use outside of the United States. Those who access the Service from other locations are responsible for compliance with applicable local laws. The Utila Software is subject to applicable export laws and restrictions.

27. Assignment of Agreement and Account.


You may not assign this Agreement or your Account without the prior written consent of Utila. You may not transfer or sublicense any licenses granted by Utila in this Agreement without the prior written consent of Utila. Utila may assign this Agreement, in whole or in part, and all related rights, licenses, benefits and obligations, without restriction, including the right to sublicense any rights and licenses under this Agreement.

28. Integration, Interpretation of Section Headings and Severability.


This Agreement and the policies referenced in this Agreement sets forth the entire agreement and understanding between you and Utila with respect to the subject matter hereof and supersedes any prior or contemporaneous agreements or understandings. This Agreement may not be modified except as provided in Section 1 or by mutual written agreement between you and Utila that is signed by hand (not electronically) by duly authorized representatives of both parties and expressly references amendment of this Agreement. You acknowledge that no other written, oral or electronic communications will serve to modify or supplement this Agreement, and you agree not to make any claims inconsistent with this understanding or in reliance on communications not part of this Agreement. The section headings used herein, including descriptive summary sentences at the start of each section, are for convenience only and shall not affect the interpretation of this Agreement. If any provision of this Agreement shall be held by a court of competent jurisdiction to be unlawful, void, or unenforceable, then in such jurisdiction that provision shall be deemed severable from these terms and shall not affect the validity and enforceability of the remaining provisions.

29. Notices.


Utila may provide notice to you and obtain consent from you through (1) the website at Utila.us; (2) by electronic mail at the electronic mail address associated with your Account; and/or (3) by written mail communication to you at the address associated with your Account.

30. Business Associate Agreement.



This HIPAA Business Associate Agreement ("BAA") is entered into between Utila, LLC ("Utila") and the Provider agreeing to the terms below ("Provider"). This Agreement will be effective as of the date Provider checks the “I agree to the Terms of Service” box and clicks the "Sign Up" button (the "Effective Date"). If Provider is an entity, the person clicking on the button represents and warrants that he or she has the authority to bind the Provider to this BAA.



1. Definitions.

Any capitalized terms not defined herein will have the meaning given to them in HIPAA and the HITECH Act.

a.     “Business Associate” has the definition given to it under HIPAA and for purposes of this BAA refers to Utila.

b.     “Covered Entity” has the definition given to it under HIPAA and for purposes of this BAA refers to Provider.

c.     “Covered Functions” has the definition given to it under HIPAA and for purposes of this BAA means the list of functionalities within the Services as set forth on Attachment 1, as may be updated from time to time by Utila with notice to Provider.

d.     “HIPAA” means the Health Information Portability and Accountability Act of 1996 and the rules and the regulations thereunder, as amended.

e.     “HITECH Act” means the Health Information Technology for Economic and Clinical Health Act enacted in the United States Congress, which is Title XIII of the American Recovery & Reinvestment Act, and the regulations thereunder, as amended.

f.      “Protected Health Information” or “PHI” has the definition given to it under HIPAA and for purposes of this BAA applies to Provider’s data to the extent Utila has access to it in connection with Provider’s permitted use of Covered Functions.

g.     “Security Breach” has the definition given to it under HIPAA and for purposes of this BAA means an actual unauthorized use or disclosure of unsecured PHI caused by Utila, including a security breach of the Covered Functions.

h.     “Services” means the Utila services set forth in Attachment 2, as may be updated from time to time by Utila with notice to Provider.

i.      “Services Agreement(s)” means the mutually agreed upon written agreement(s) between Utila and Provider for provision of the Services, which agreement(s) may be in the form of online terms of service.


2. Applicability.

This BAA applies to the extent Provider is acting as a Covered Entity or a Business Associate to transfer, store, or create PHI via a Covered Function and to the extent Utila, as a result, is deemed under HIPAA to be acting as a Business Associate or an agent or subcontractor of a Business Associate. Provider acknowledges that this BAA does not apply to, or govern, any other Utila product, service, or feature not part of a Covered Function.


3. Permitted Use and Disclosure.

a.     By Utila.

i.     Except as otherwise set forth in this BAA, Utila may use and disclose PHI only as specified in the Services Agreements.

ii.     In addition, Utila may use and disclose PHI for the proper management and administration of Utila’s business and to carry out the legal responsibilities of Utila,provided that any disclosure of PHI for such purposes may only occur if:

1.     required by applicable law; or

2.     Utila obtains written reasonable assurances from the person to whom PHI will be disclosed that it will be held in confidence, used only for the purpose for which it was disclosed, and that Utila will be notified of any Security Breach.

iii.     In addition, Utila may use PHI to create de-identified information in a manner consistent with the standards set forth in HIPAA.

b.     By Provider.

i.     Provider may use the Services to transfer, create, maintain, or store PHI via Covered Function (and only within Covered Functions and no other functions of a Service).

ii.     Provider will not request Utila or the Services to use or disclose PHI in any manner that would not be permissible under HIPAA if done by a Covered Entity itself (unless expressly permitted under HIPAA for a Business Associate).

iii.     In connection with Provider’s management and administration of the Services to Provider’s clients, Provider is responsible for using the available security controls within the Services to support its HIPAA compliance requirements.

4. Appropriate Safeguards.

Utila and Provider will use appropriate safeguards designed to prevent against unauthorized use or disclosure of PHI, and as otherwise required under HIPAA, with respect to the Covered Function.

    

5. Reporting.

a.     Utila will promptly notify Provider following the discovery of a Security Breach in the most expedient time possible under the circumstances, consistent with the legitimate needs of applicable law enforcement and applicable laws, and after taking any measures necessary to determine the scope of the Security Breach and to restore the reasonable integrity of the Services system.

b.      To the extent practicable, Utila will use commercially reasonable efforts to mitigate any further harmful effects of a Security Breach.

c.     Utila will send any applicable Security Breach notifications to the notification email address provided by Provider in a Services Agreement or via direct communication with the Provider.

d.     This Section 5 will be deemed as notice to Provider that Utila’s hosting provider, Google Cloud, periodically receives unsuccessful attempts for unauthorized access, use, disclosure, modification or destruction of information, or interference with the general operation of Google Cloud’s information systems and the Services and even if such events constitute a Security Incident as that term is defined under HIPAA, Google Cloud does not provide any further notice regarding such unsuccessful attempts unless they result in a Security Breach.


6. Agents and Subcontractors.

Utila will take appropriate measures to ensure that any agents and subcontractors used by Utila to perform its obligations under the Services Agreements that require access to PHI on behalf of Utila are bound by written obligations that provide the same material level of protection for PHI as this BAA. To the extent Utila uses agents and subcontractors in its performance of obligations hereunder, Utila will remain responsible for their performance as if performed by Utila.


7. Accounting Rights.

Utila will make available to Provider the PHI via the Services so Provider may fulfill its obligation to give individuals their rights of access, amendment, and accounting in accordance with the requirements under HIPAA. Provider is responsible for managing its use of the Services to appropriately respond to such individual requests.


8. Access to Records.

To the extent required by law, and subject to applicable attorney client privileges, Utila will make its internal practices, books, and records concerning the use and disclosure of PHI received from Provider, or created or received by Utila on behalf of Provider, available to the Secretary of the U.S. Department of Health and Human Services (the “Secretary”) for the purpose of the Secretary determining compliance with this BAA.


9. Term and Termination.

a.     This BAA will expire upon the expiration or termination of all the Services Agreements.

b.     Provider may immediately terminate this BAA and, at its option, the Services Agreements upon 10 days written notice to Utila if Utila has materially breached this BAA and such breach is not reasonably capable of being cured.

c.     If this BAA is terminated earlier than the Services Agreements, Provider may continue to use the Services in accordance with the Services Agreements, but must delete any PHI it maintains in the Services and cease to further create, maintain, or transfer such PHI to Utila.


10. Return/Destruction of Information.

Upon termination of the Services Agreements, Utila will return or destroy all PHI received from Provider, or created or received by Utila on behalf of Provider; provided, however, that if such return or destruction is not feasible, Utila will extend the protections of this BAA to the PHI not returned or destroyed and limit further uses and disclosures to those purposes that make the return or destruction of the PHI infeasible.

11. Miscellaneous.

a.     Incorporation. This BAA is an addendum to each of the applicable Service Agreements.

b.     Equitable Relief. Nothing in this BAA will limit either party’s ability to seek equitable relief.

c.     Entire Agreement; Amendments. This BAA is the parties’ entire agreement relating to its subject and supersedes any prior or contemporaneous agreements on that subject. Any amendment must be in writing signed by both parties and expressly state that it is amending this BAA.

d.     No Waiver. Failure to enforce any provision will not constitute a waiver.

e.     Severability; Interpretation. If any provision of this BAA is found unenforceable, the balance of this BAA will remain in full force and effect. It is the parties’ intent that any ambiguity under this BAA be interpreted consistently with the intent to comply with applicable laws. To the extent of any conflict or inconsistency between the terms of this BAA and the Services Agreements, the terms of this BAA will govern. Except as expressly modified or amended under this BAA, the terms of the Services Agreements remain in full force and effect.

f.      Survival. Sections 10 (Return/Destruction of Information) and 12 (Miscellaneous) will survive termination or expiration of this BAA.

g.     Independent Contractors. The parties are independent contractors and this BAA does not create an agency, partnership, or joint venture.

h.     No Third Party Beneficiaries. There are no third-party beneficiaries to this BAA.

i.      Counterparts. The parties may execute this BAA in counterparts, including facsimile, PDF or other electronic copies, which taken together will constitute one instrument.

Attachment 1


List of Covered Functions:

All functions of each of the Services listed in Attachment 2

Attachment 2


List of Services:

“Services” include the following products, as further described at https://utila.us:

Provider app
Client app
Admin app