License and Services Terms
PLEASE READ THESE LICENSE AND SERVICES TERMS (THE “TERMS”) CAREFULLY BEFORE USING THE SERVICES OFFERED BY OTTO HEALTH, LLC (“OTTO”). BY MUTUALLY EXECUTING ONE OR MORE ORDER FORMS WITH OTTO WHICH REFERENCE THESE TERMS (EACH, AN “ORDER FORM”), YOU (“PRACTICE”) AGREE TO BE BOUND BY THESE TERMS (TOGETHER WITH ALL ORDER FORMS, THE “AGREEMENT”) TO THE EXCLUSION OF ALL OTHER TERMS. IF THE TERMS OF THIS AGREEMENT ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO SUCH TERMS. OTTO and PRACTICE are sometimes herein individually referred to as a “Party” and collectively as the “Parties.”
A. OTTO has developed proprietary computer software and a proprietary service-based video platform, which enables physicians and patients to communicate and converse about non-emergency medical conditions.
B. PRACTICE desires to obtain the necessary rights in order to enable PRACTICE’s authorized users to utilize OTTO’s computer software and service-based platform to communicate and converse with patients about non-emergency medical conditions.
C. This Agreement also states the terms and conditions under which OTTO will:
(i) Grant to PRACTICE the necessary rights for PRACTICE’s authorized users to access OTTO’s computer software program and utilize OTTO’s services; and
(ii) Provide related hosting, maintenance and support, and implementation services to PRACTICE.
NOW, THEREFORE, based upon the premises set forth above and for good and valuable consideration, the adequacy and sufficiency of which is hereby acknowledged, the Parties agree as follows:
Capitalized terms in this Agreement have the respective meanings set forth in this Section 1, unless defined elsewhere in this Agreement.
“Associate User” means an authorized user of the OTTO Service who is not a Provider User (including, but not limited to, Registered Nurses, Medical Assistants, Licensed Practical Nurses, Registered Dieticians, and Social Workers), each as designated by PRACTICE.
“Defect” means the OTTO Service performing in a defective manner such that the OTTO Service cannot be utilized or it or the OTTO Service fails to perform in accordance with its documentation.
“HIPAA” means the Health Insurance Portability and Accountability Act of 1996, and the Health Information Technology Act, Title VIII of the American Recovery and Reinvestment Act of 2009 (the ‘HITECH Act”), as the same may be amended or supplemented.
“OTTO Service” the online services provided by OTTO, which allow PRACTICE and its Users to (i) schedule patient visits for non-emergency medical conditions, (ii) conduct patient visits via audiovisual (telemedicine), and (iii) obtain such additional services including, by way of example only, email communications, which OTTO determines from time to time to include in the OTTO Service, in each case as may be further described on an Order Form.
“Patient User(s)” means an individual person who accesses the OTTO Service (including without limitation online at http://www.ottohealth.com or via OTTO mobile applications) and communicates with a PRACTICE User about such person’s non-emergency medical condition and with such PRACTICE User establishes or has a physician-patient relationship.
“Personal Information” means any information provided to OTTO during the Term by PRACTICE or a User that: (i) identifies or can be used to identify an individual (including names, signatures, addresses, telephone numbers, e-mail addresses and other unique identifiers); or (ii) can be used to authenticate an individual (including employee identification numbers, government-issued identification numbers, passwords or PINs, financial account numbers, credit report information, biometric or health data, answers to security questions and other personal identifiers). Personal Information shall include any nonpublic personal information regarding any individual that is subject to applicable national, state, regional, and/or local laws and regulations governing the privacy, security, confidentiality and protection of nonpublic personal information. Personal Information also includes Protected Health Information.
“PRACTICE Data” means Personal Information provided, entered or uploaded for use by or with the OTTO Service by PRACTICE or its Users.
“PRACTICE User” means any and all Provider Users and Associate Users.
“Protected Health Information” or “PHI” has the meaning set forth in 45 CFR § 160.103, limited to the information that OTTO creates, receives, maintains, or transmits on behalf of PRACTICE. All references to PHI shall also include Electronic Protected Health Information as defined in 45 CFR § 160.103.
“Provider User” means a physician and/or nurse practitioner or physician’s assistant who is an authorized user of the OTTO Service, as designated by PRACTICE.
“SLA” means OTTO’s then-current Support and Service Level Agreement for the OTTO Service, the current version of which is set forth at https://www.ottohealth.com/content/documents/ottoslasupport
“Telehealth Encounter” means a contact between a Patient User and a PRACTICE User utilizing the OTTO Service.
“Third Party Software” means software, either in object or source code format, which is not owned or licensed by OTTO, including computer operating systems, database administration systems and user applications
“Users” means PRACTICE Users and Patient Users.
2. License Grant; Method of Access by Users; No OTTO Physician Patient Relationship
a. License Grant
. Subject to the terms and conditions of this Agreement (including without limitation Section 3.a), OTTO hereby grants to PRACTICE and PRACTICE hereby accepts a non-exclusive, non-transferable (subject to Section 16.f), non-assignable (subject to Section 16.f), license during the Term, to use and access the OTTO Service. The license and rights granted under this Agreement are granted to and for the benefit of PRACTICE only. All rights which are not expressly granted to PRACTICE herein are reserved by OTTO.
b. Method of Access
. Users shall access the OTTO Service through either a (i) web browser (either from a computer or Android device), or (ii) the iOS Application from the Apple® mobile applications store. OTTO may offer additional methods of access from time to time.
c. No OTTO Physician Patient Relationship
. OTTO is not providing medical or health care services directly or indirectly to Patient Users and no physician patient relationship to which OTTO is a party is established by a User’s use of the OTTO Service.
3. Restrictions on Use; Certain Responsibilities of PRACTICE
a. Restrictions on Use; Ownership
. PRACTICE will not (and will not allow any third party to): (i) utilize the OTTO Service outside of the scope of grant provided under Section 2 and will not sublicense or transfer its rights hereunder in any form to any third party; (ii) grant access to the OTTO Service to anyone other than PRACTICE Users; (iii) modify, reverse engineer, decompile, create derivative works of the OTTO Service, or disassemble, or otherwise recreate the OTTO Service or any part thereof in any form (except to the extent the foregoing restrictions are prohibited by applicable law); (iv) use the OTTO Service to build any application, product or service with is competitive with any OTTO product or service; (v) interfere or attempt to interfere with the proper working of the OTTO Service or any activities conducted on the OTTO Service; (vi) bypass any measures OTTO may use to prevent or restrict access to the OTTO Service (or other accounts, computer systems or networks connected to the OTTO Service); (vii) use the OTTO Service in a manner that violates any applicable laws or regulations; or (viii) remove any intellectual property, confidentiality or proprietary notices of OTTO which appear in any form on the OTTO Service or otherwise in any OTTO collateral or materials however reproduced. PRACTICE (a) shall use the OTTO Service in compliance with all applicable local, state, national and foreign laws, treaties and regulations in connection with Customer’s use of the Products (including those related to data privacy, international communications, export laws and the transmission of technical or personal data laws), and (b) shall not use the OTTO Service in a manner that violates any third party intellectual property, contractual or other proprietary rights. As between the parties, OTTO is the sole and exclusive owner of all right, title and interest in and to the OTTO Service and all other intellectual property rights thereto, and PRACTICE will not take any action which challenges or infringes upon the foregoing ownership or rights. Notwithstanding anything else, (1) OTTO may use PRACTICE Data (a) to provide and improve the OTTO Service and prevent or address service or technical problems, (b) as compelled by law, provided OTTO gives PRACTICE prior notice of the compelled disclosure to the extent legally permitted and reasonable assistance to PRACTICE if PRACTICE wishes to contest the disclosure, (c) PRACTICE expressly permits in writing, and (d) internally to generate Aggregated De-Identified Data (as defined below), and (2) OTTO may freely use, exploit and make available Aggregated De-Identified Data. “Aggregated De-Identified Data means data and/or information in aggregated, de-identified form that does not identify PRACTICE, or any User.
b. Certain Responsibilities of PRACTICE
. PRACTICE accepts sole responsibility for: (i) acquiring and configuring hardware and Third Party Software necessary to use and access the OTTO Service; (ii) the PRACTICE Data inputted in and used within the OTTO Service and otherwise in all respects; (iii) the use of the OTTO Service, including the results obtained therefrom; and (iv) all aspects of the communications and medical care between Users. PRACTICE will indemnify and hold OTTO harmless from and against any claims, losses, damages, liabilities, costs and expenses (including attorneys’ fees) arising from or relating to subsections (ii)-(iv) of the foregoing sentence. Without limiting the foregoing, (x) OTTO shall have no obligation to correct or in any way be responsible for a problem or Defect caused by PRACTICE’s negligent or other act or omission, PRACTICE’s equipment malfunction, or other cause beyond OTTO’s reasonable control, and (y) OTTO shall have no obligation as to or in any way be responsible for any PRACTICE User’s negligent or other act or omission.
4. SLA; PRACTICE’s User Accounts; Connectivity.
. OTTO will provide the OTTO Service in accordance with the SLA, which is incorporated herein by this reference.
b. User Accounts
. PRACTICE shall be responsible for and shall maintain its own authorized User IDs and passwords which can be managed through the OTTO Service. PRACTICE shall maintain the strict confidentiality of the User IDs and passwords and shall cause their PRACTICE Users to maintain as strictly confidential their User IDs and passwords. PRACTICE is solely responsible for all uses of and activities undertaken with User IDs. PRACTICE shall promptly notify OTTO of any unauthorized use of User IDs of which PRACTICE becomes aware.
. Subject to the SLA, OTTO shall maintain connectivity from its or its host’s network to the Internet capable of servicing the relevant Internet traffic to and from PRACTICE’s local area network for PRACTICE’s offices, and assist PRACTICE in connecting to the hosting environment and connecting a subset of PRACTICE’s workstations. PRACTICE is responsible for providing connectivity to the Internet for itself and its own users and personnel. PRACTICE shall ensure that latency and available bandwidth from the PRACTICE User’s desktop to OTTO’s hosted routers is adequate to meet PRACTICE’s desired level of performance. PRACTICE is responsible for all costs associated with any specialized network connectivity required by PRACTICE.
5. Maintenance and Support Services
. Subject to the terms and conditions of this Agreement, during the Term OTTO shall provide the maintenance and support services set forth in the SLA (the “Maintenance and Support Services”).
6. Implementation Services
. Subject to the terms and conditions of this Agreement, during the Term OTTO agrees to perform all implementation services which may be set forth on an Order Form in accordance with such time schedule as mutually agreed upon by the Parties in such Order Form (“Implementation Services”).
7. License, Support and Implementation Fees; Payments; Expenses; Taxes
a. License, Support and Implementation Fees; Payments
. PRACTICE shall pay OTTO the fees set forth on each Order Form. Except as may otherwise set forth on an Order Form, (i) all fees will be invoiced monthly in arrears, (ii) OTTO may invoices PRACTICE via email, and (iii) all invoices are due an payable within 30 days of the date of thereof.
. PRACTICE is not responsible for any expenses of OTTO under this Agreement except as provided in an applicable Order Form.
. PRACTICE shall pay directly all amounts due for sales, use, excise, value-added, or other taxes or governmental charges imposed on the licensing or use of the OTTO Service, Maintenance and Support Services, and Implementation Services. In no event shall PRACTICE be obligated to pay any tax due or to be paid on OTTO’s revenues or income.
8. Term; Termination; Termination of Access Rights; Survival
. This Agreement shall commence upon the effective date set forth in the first Order Form, and, unless earlier terminated in accordance herewith, shall last until the expiration of all Order Form Terms (the “Term”). For each Order Form, the term of such Order Form shall begin as of the effective date set forth on such Order Form, and unless earlier terminated as set forth herein, (x) shall continue for the initial term specified on the Order Form (the “Initial Order Form Term”), and (y) following the Initial Order Form Term, shall automatically renew for additional successive periods of equal duration to the Initial Order Form Term (each, a “Renewal Order Form Term”, and together with the Initial Order Form Term, the “Order Form Term”) unless either party notifies the other party of such party’s intention not to renew no later than sixty (60) days prior to the expiration of the Initial Order Form Term or then-current Renewal Order Form Term (as applicable).
. This Agreement may be terminated (i) by either Party in the event that the other Party breaches its representations, warranties or obligations under this Agreement and such breach is not cured within thirty (30) days after written notice of such breach is provided by the non-breaching Party; or (ii) by OTTO in the event that PRACTICE breaches its obligations under Section 3(a) and does not cure such breach within ten (10) days after receiving written notice of such breach from OTTO.
c. Termination of Access and Maintenance and Support Services
. Promptly after the expiration or termination of this Agreement for any reason, OTTO shall cease providing access to the OTTO Service and cease Maintenance and Support Services, and PRACTICE shall cease use of the OTTO Service directly and by its PRACTICE Users. At OTTO’s request, PRACTICE shall deliver to OTTO an officer certification as to PRACTICE’s compliance with this Section 8(c).
d. Disposition of Protected Health Information
. Upon expiration or termination of this Agreement for any reason, OTTO shall take the necessary steps to either (i) destroy, or (ii) deliver to PRACTICE the Protected Health Information in accordance with the Business Associate Agreement between the Parties.
. The following provisions herein shall survive any expiration or termination of this Agreement: 1, 3, 7, 8(b) – 8(e), 10, 11(d), and 12 through 16 inclusive.
9. Business Associate Agreement
. OTTO and PRACTICE will be parties to the Business Associate Agreement set forth at https://www.ottohealth.com/content/documents/ottobaa (the “Business Associate Agreement”), which is incorporated herein by this reference and which includes, among other things, provisions regarding Protected Health Information, security of the OTTO Service, and incident response.
10. Representations and Warranties of the Parties
. Each Party represents and warrants to the other Party that (i) such Party has obtained all necessary corporate authorizations to execute, deliver and perform this Agreement, and (ii) the execution, delivery and performance of this Agreement does not violate or conflict with any agreement to which such Party is a party or obligation to which such Party is subject.
11. OTTO’s Representations and Warranties
. OTTO makes the following representations and warranties to PRACTICE:
a. Compliance with Laws
. The OTTO Service complies with the Security Standards for the Protection of Electronic Health Information (the HIPAA Security Rule) as set forth in 45 C.F.R. Part 160 and Subparts A and C of Part 164, and will maintain such compliance during the Term. OTTO periodically conducts an internal audit utilizing the Office for Civil Rights HIPAA Audit program protocol at http://www.hhsgov/ocr/privacy/hipaa/ enforcement/audit/protocol.html, as amended from time to time, that analyzes OTTO’s processes, controls and policies for compliance with HIPAA. OTTO represents and warrants that it will (i) comply with applicable Federal laws and regulations applicable to the privacy and security of PRACTICE Data; and (ii) be responsible for the performance of OTTO’s personnel (including employees, service providers and contractors) compliance with this Agreement..
b. Express Disclaimer as to State Law on Telemedicine
. Notwithstanding any representations, warranties or covenants of OTTO in this Agreement, OTTO is not responsible for compliance with any restrictions or requirements of any state laws regulating or pertaining to PRACTICE Users utilizing the OTTO Service to treat Patient Users utilizing telemedicine technology, treatment or methods. PRACTICE acknowledges and agrees that PRACTICE is solely responsible for such compliance.
The foregoing limited warranties are in lieu of all other warranties, are made for the benefit of PRACTICE only, and are expressly subject to the applicable provisions hereof. Except as provided in this Section 11, the Parties acknowledge and agree that the OTTO Service is provided “AS IS” and OTTO makes none and hereby disclaims all other warranties, representations or conditions, whether written or oral, or express, implied, or statutory, with respect to the subject matter hereof, including any implied warranties of merchantability, data integrity, quiet enjoyment, or fitness for a particular use or purpose, with respect to the OTTO Service, the Maintenance and Support Services, the Implementation Services and otherwise. OTTO does not warrant that all errors can be corrected or that operation of the OTTO Service shall be uninterrupted or error free.
. Each party (“Indemnitor”) shall defend, indemnify, and hold harmless the other party, its affiliates and each of its and its affiliates’ employees, contractors, directors, suppliers and representatives (collectively, the “Indemnitee”) from all liabilities, claims, and expenses paid or payable to an unaffiliated third party (including reasonable attorneys’ fees) (“Losses”), that arise from or relate to (i) in the case of OTTO as Indemnitor, any claim that the OTTO Service infringes, violates, or misappropriates any third party intellectual property or proprietary right, and (ii) in the case of PRACTICE as Indemnitor, the PRACTICE Data, PRACTICE’s use of the OTTO Service, PRACTICE’s breach of this Agreement, any claim of a User. Each Indemnitor’s indemnification obligations hereunder shall be conditioned upon the Indemnitee providing the Indemnitor with: (a) prompt written notice of any claim (provided that a failure to provide such notice shall only relieve the Indemnitor of its indemnity obligations if the Indemnitor is materially prejudiced by such failure); (b) the option to assume sole control over the defense and settlement of any claim (provided that the Indemnitee may participate in such defense and settlement at its own expense); and (c) reasonable information and assistance in connection with such defense and settlement (at the Indemnitor’s expense). The foregoing obligations of OTTO do not apply with respect to the OTTO Service or any information, technology, materials or data (or any portions or components of the foregoing) to the extent (1) not created or provided by OTTO (including without limitation any PRACTICE Data), (2) made in whole or in part in accordance to PRACTICE specifications, (3) modified after delivery by OTTO, (4) combined with other products, processes or materials not provided by OTTO (where the alleged Losses arise from or relate to such combination), (5) where PRACTICE continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (6) PRACTICE’s use of the OTTO Service is not strictly in accordance herewith. In addition, in the event such an infringement is determined and OTTO cannot either procure the right to its continued provision of the OTTO Service, or replace or modify the OTTO Service so that the same no longer infringes upon the rights of such third party, OTTO shall be authorized to terminate this Agreement. In the event of such termination, OTTO will refund to PRACTICE the full amount of the annual License Fee paid for the year during which such infringement claim arose, less one-twelfth (1/12) for each full month of such year during which PRACTICE Indemnitees are able to utilize the OTTO Service.
13. Limitations of Liability; Exclusions
. EXCEPT FOR INDEMNIFICATION OBLIGATIONS OR PRACTICE’S BREACH OF SECTION 3(A), NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY HERETO WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT (WHETHER IN CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE, OR ANY OTHER LEGAL OR EQUITABLE THEORY) FOR (I) ANY INDIRECT, EXEMPLARY, PUNITIVE, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, OR (II) ANY AMOUNTS IN EXCESS (IN THE AGGREGATE) OF THE AMOUNTS PAID (OR, IN THE CASE OF PRACTICE, PAYABLE) TO OTTO IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING ANY CLAIM.
During the Term and for a period of one (1) year following this Agreement’s expiration or termination, without the express prior written consent of OTTO, PRACTICE will not directly or indirectly solicit for employment or as a consultant, an employee or consultant of OTTO, or any person who was an employee or consultant of OTTO at any time during the twelve (12) month period immediately prior to the date such employee or consultant is solicited, hired or retained. Notwithstanding the foregoing, PRACTICE shall not be precluded from (i) hiring an employee of OTTO who independently approaches PRACTICE, or (ii) conducting general recruiting activities, such as participation in job fairs or publishing advertisements in publications or on Web sites for general circulation. In the event of a violation of this provision (but without limiting any remedy otherwise available to OTTO), PRACTICE shall make a one-time payment in the amount of twenty-five percent (25%) of the employee’s or consultant’s most recent base salary.
15. Force Majeure
Neither Party will be responsible for delays or failures in performance resulting from acts or events beyond its reasonable control, including but not limited to, acts of nature, governmental actions, acts of terrorism, fire, civil disturbances, interruptions of power supply or communications or natural disasters, provided such Party takes reasonable efforts to minimize the effect of such acts or events and resumes performance when the impediment in question is abated. This provision will not apply to or impact a Party’s payment obligations under this Agreement.
16. General Provisions
a. Governing Law; Jurisdiction
. This Agreement will be governed by and construed in accordance with Colorado law as applied to transactions wholly occurring within such state between residents of such state without giving effect to the conflict of law rules thereof, and any mediation, arbitration or litigation between the Parties arising hereunder shall be conducted or tried before the court or alternative dispute resolution tribunal having proper subject matter jurisdiction, as the case may be, solely in Denver, Colorado.
b. Entire Agreement
. This Agreement (including all Order Forms and all documents incorporated by reference herein) and the Exhibits attached hereto contain the entire understanding of the Parties with respect to the subject matter hereof. In the event of any conflict between this Agreement and any Order Form, the Order Form shall control. There are no promises, covenants or undertakings contained in any other writing or oral communication.
. This Agreement may not be amended except in a writing signed by authorized representatives of the Parties.
. Any notices required or permitted to be sent hereunder will be in writing and will be sent Certified Mail, Return Receipt Requested, or by a recognized overnight courier. Notices will be sent to the addresses set forth on the applicable Order Form or to such other address as a Party may designate by notice pursuant hereto.
. A waiver of a breach or default under this Agreement will not be a waiver of any subsequent breach or default. Failure of either Party to enforce compliance with any term or condition of this Agreement will not constitute a waiver of such term or condition.
. Neither this Agreement nor any right or obligation hereunder shall be assigned or delegated, in whole or part, by PRACTICE without the prior express written consent of OTTO which shall not be unreasonably withheld. Any permitted assignee shall assume in writing all assigned obligations of its assignor under this Agreement. OTTO may assign its rights and obligations under this Agreement without consent to an entity which acquires substantially all of OTTO’s business or assets or to a joint venture or partnership in which OTTO is a member. Any purported assignment in violation of this section shall be void and of no effect.
. PRACTICE authorizes OTTO to identify PRACTICE as a client, and to use PRACTICE’s name and logo in OTTO’s advertising copy, promotional material or press releases. Promptly after the Effective Date PRACTICE agrees to work with OTTO to prepare and release a mutually acceptable press release announcing in general terms this Agreement and the commercial relationship of the Parties.
h. Equitable Relief
. The breach of this Agreement and in particular the provisions concerning the intellectual property ownership rights of OTTO, may result in irreparable injury and the Party who claims such a breach will be entitled to seek specific performance and injunctive relief to correct and enjoin such breach in addition to all other remedies which are available to such Party.
i. Dispute Resolution
. In the event of any dispute between the Parties arising out of or relating to this Agreement, exclusive of any claim of OTTO seeking specific performance or injunctive relief as to the enforcement of the intellectual property ownership rights of OTTO, the Parties shall first attempt to resolve their dispute through good-faith negotiations between senior officials of each Party.
If such good faith negotiations are unsuccessful, the Parties shall mediate their dispute in a non-binding mediation under the then-current Commercial Mediation Procedures of the American Arbitration Association (AAA). The Parties’ efforts to reach a settlement with the mediator’s assistance will continue until: (i) the parties execute a written settlement; (ii) the mediator concludes and informs the Parties in writing that further efforts would not be useful; or (iii) the Parties agree in writing that an impasse has been reached. Neither party may withdraw from the mediation before its conclusion. Each party shall bear its own expenses except that the costs of the mediator and filing fees with the AAA shall be split equally between the parties.
The mediation shall be conducted by a single mediator who shall have not less than ten (10) years of experience in the area of healthcare software and technology contracting and/or adjudicating or mediating disputes as to healthcare software and technology contracting, and who shall be mutually selected by the parties.
The Parties regard this obligation to mediate as an essential provision of this Agreement, and they accept that obligation as legally binding. If either Party refuses to participate in mediation, the other may bring an action to seek enforcement of the obligation in any court having jurisdiction over the parties.
Notwithstanding anything to the contrary contained in this Agreement, in the event of a litigated dispute between the Parties as to OTTO’s intellectual property ownership rights in the OTTO Service, if OTTO is the prevailing Party in such dispute it shall be entitled to recover its reasonable attorney’s fees and costs.
. If any provision of this Agreement is found to be invalid, illegal or unenforceable under any applicable statute or law, it is to that extent deemed to be omitted and the remaining provisions of this Agreement will not be affected in any way.
k. No Third Party Beneficiaries
. There are no third party beneficiaries of this Agreement, including without limitation Users.
. This Agreement may be executed in two or more original, faxed or .pdf counterparts, all of which when taken together shall constitute a binding instrument on the Parties.
. The headings of the paragraphs and sections of this Agreement are for convenience only and will not control or affect the meaning or construction of any provision of this Agreement.
. PRACTICE will not use any other telehealth solution after a thirty (30) day transition for the duration of this Agreement.
Support and Service Level Agreement
This Support and Service Level Agreement (the “SLA”) applies to any written agreement between OTTO Health, LLC (“OTTO”) and an OTTO customer (“PRACTICE”) which expressly references this SLA (such written agreement is referred to herein as the “Agreement”). Certain capitalized terms not defined in this SLA shall have the meaning set forth in the Agreement.
MAINTENANCE AND SUPPORT SERVICES
OTTO shall provide the following standard maintenance and support services (“Maintenance and Support Services”):
1. Maintenance and Support Services-Standard Support
a. Help Desk
. OTTO shall provide to PRACTICE telephone or email support: (i) to assist PRACTICE in the use of the features and functionality of the OTTO Service, and (ii) to identify, investigate, and resolve any Defects within the OTTO Service identified by PRACTICE and interfering with PRACTICE’s use of the OTTO Service. OTTO’s support shall be provided between the hours of 7:00 am and 5:00 pm Mountain Time, Monday through Friday, and excluding federal holidays.
b. Remote Access
. PRACTICE agrees to make available to OTTO reasonable remote access to PRACTICE’s systems and resources as required for OTTO to perform Maintenance and Support Services, subject to PRACTICE’s reasonable security/password requirements for independent contractors.
c. Defect Resolution Process
. PRACTICE shall notify OTTO of any suspected Defect via email to an email address supplied by OTTO. PRACTICE shall appoint a single individual to serve as the point of contact for tracking and prioritizing all Defects reported by PRACTICE. PRACTICE shall provide reasonable assistance to OTTO in defining and replicating the Defect. OTTO shall use reasonable commercial efforts to correct the OTTO Service or to provide a reasonable workaround to correct the Defect. OTTO in its sole discretion shall determine the method used to resolve any and all Defects with consideration for how such corrections or work arounds would impact PRACTICE’s business or the functionality or use of the OTTO Service.
d. Additional Services
. OTTO shall provide additional services to PRACTICE on a time and materials basis at OTTO’s then applicable hourly rates, upon PRACTICE’s written request and OTTO’s written acceptance.
1. Service Levels
. OTTO will use reasonable efforts to maintain a ninety-nine (99%) uptime during Business Hours and ninety-five (95%) percent uptime outside of Business Hours (the “Uptime SLA”) where “uptime” for purposes of this Uptime SLA means that no Outages have occurred. An “Outage” shall mean the complete loss of connectivity between Practice and the OTTO Service. The Uptime SLA does not include any delay or downtime caused by any of the following. (i) failure of connectivity between Practice and internet; (ii) failure of electric utility power at Practice’s site(s); (iii) gross negligence or willful misconduct of third parties not affiliated with OTTO and/or its hosting service provider, including Practice or any of its employees, agents, or representatives; (iv) scheduled maintenance from 11pm – 6am MT during a non-workday (i.e. maintenance to be scheduled either Saturday or Sunday) at OTTO and/or its hosting service provider facility; (v) Domain Name Service (“DNS”) failure, when such services are not under OTTO’s and/or its hosting service provider’s reasonable control; or (vi) performance degradation as a result of OTTO’s or Practice’s scheduled nightly processes including, but not limited to, database replication or database maintenance jobs.
. Should OTTO Uptime SLA and fail to cure such breach within sixty (60) minutes of written notice from Practice, which notice may come in the form of an entry into OTTO’s support system or portal, then for each instance, as PRACTICE’s sole remedy (and OTTO’s sole liability) therefor, OTTO will provide a credit of $15 per business hour where the response time or uptime does not meet the standards set forth in paragraph 1 above, up to a maximum credit of $1,500 per month.
3. Practice Representation
. Practice represents and warrants that: (1) neither the hardware nor the network at Practice sites that Practice uses to obtain access to OTTO’s application will, to the Practice’s knowledge, contain any viruses, Trojan horses, trap doors, back doors, Easter eggs, worms, time bombs, cancelbots, or other computer programming routines that may damage, detrimentally interfere with, surreptitiously intercept, expropriate, or make any other unauthorized transfer, alteration or use of the Hosting Services, any Software or data, adversely impact the operation of availability by any facility used to provide Hosting Services, or any other computing systems, data or information of OTTO, its hosting services provider or any third party; and (2) unless otherwise instructed in writing by OTTO, Practice will use a current, industry standard or better Virus scanning and detection program, running up-to-date virus definitions, prior to providing and while access the Practice Software.
Business Associate Agreement
This Business Associate Agreement (the “BAA”) applies to any written agreement between OTTO Health, LLC (“OTTO”) and an OTTO customer (“PRACTICE”) which expressly references this BAA (such written agreement is referred to herein as the “Agreement”). Certain capitalized terms not defined in this BAA shall have the meaning set forth in the Agreement.
Whereas, Practice is a “covered entity” under the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), as it may be amended or supplemented; the regulations promulgated thereunder including the Standards for Privacy of Individually Identifiable Health Information (the “Privacy Rule”), 45 C.F.R. Parts 160 and 164, Subparts A and E, the Standards for the Security of Electronic Protected Health Information (the “Security Rule”), 45 C.F.R. Parts 160 and 164, Subpart C, the Breach Notification for Unsecured Protected Health Information (the “Breach Notification Rule”), 45 C.F.R. Parts 160 and 164, as may be amended or supplemented (collectively with HIPAA, the “HIPAA Rules”), and the Health Information Technology for Economic and Clinical Health Act, Title VIII of the American Recovery and Reinvestment Act of 2009, as may be amended or supplemented, and the regulations promulgated thereunder, as may be amended or supplemented (the “HITECH Act”);
Whereas, OTTO is a “business associate” under the HIPAA Rules and the HITECH Act and may receive, create, maintain, and transmit protected health information (“PHI”) on Practice’s behalf in connection with the Services (defined below);
Whereas, the HIPAA Rules and the HITECH Act require that Practice contract with OTTO to mandate certain protections for the privacy and security of PHI that OTTO may receive, create, maintain, or transmit on Practice’s behalf while providing the Services; and
Whereas, Practice and OTTO intend for the BAA to satisfy their obligations under the HIPAA Rules and the HITECH Act, and any implementing regulations.
Now, therefore, in consideration of the foregoing, and for other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the Parties agree as follows:
- Defined Terms Generally
. Terms used in the BAA but not otherwise defined in the BAA shall have the same meaning as those terms in the HIPAA Rules and the HITECH Act.
- Specific Defined Terms.
- Breach. “Breach” shall have the meaning set forth in 45 CFR § 164.402.
- Designated Record Set. “Designated Record Set” shall have the meaning set forth in 45 CFR § 164.501.
- Electronic Protected Health Information. “Electronic Protected Health Information” shall have the meaning set forth in 45 CFR § 160.103.
- Individual. “Individual” shall have the meaning set forth in 45 CFR § 160.103 and shall include a person who qualifies as a “personal representative” pursuant to 45 CFR § 164.502(g).
- Privacy Rule. “Privacy Rule” shall mean the Standards for Privacy of Individually Identifiable Health Information at 45 CFR Part 160 and Part 164, Subparts A and E.
- Protected Health Information. “Protected Health Information” shall have the meaning set forth in 45 CFR § 160.103. All references to PHI shall also include Electronic Protected Health Information as defined in 45 CFR § 160.103.
- Required by Law. “Required by Law” shall have the meaning set forth in 45 CFR § 164.103.
- Secretary. “Secretary” shall mean the Secretary of the Department of Health and Human Services or his or her designee.
- Security Incident. “Security Incident” shall have the meaning set forth in 45 CFR § 164.304.
- Services. “Services” shall mean the services for or functions on behalf of Practice performed by OTTO pursuant to any service agreement(s) between Practice and OTTO which may be in effect now or from time to time (the “Service Agreement”), or, if no such agreement is in effect, the services or functions performed by OTTO that constitute a business associate relationship between Practice and OTTO.
- Subcontractor. “Subcontractor” shall have the meaning set forth in 45 CFR § 160.103.
- Unsecured Protected Health Information. “Unsecured Protected Health Information” shall have the meaning set forth in 45 CFR § 164.402.
OTTO’s Obligations and Scope of Activities
- Use and Disclosure of PHI
. OTTO agrees not to Use or Disclose PHI other than as permitted or required by the BAA, the Service Agreement, or as Required by Law. OTTO further agrees to comply with the BAA’s provisions and all present and future provisions of the HIPAA Rules, the HITECH Act, and Colorado law that relate to the privacy and security of PHI and apply to OTTO. OTTO agrees not to Use or Disclose PHI in any manner that would constitute a violation of the HIPAA Rules, the HITECH Act, or Colorado law if so Used or Disclosed by Practice. OTTO agrees to Use PHI solely for the purpose of and as necessary for performing Services for Practice. OTTO further agrees that Practice shall retain all rights in PHI not granted herein.
- Reasonable and Appropriate Safeguards
. OTTO has implemented and will continue to maintain administrative, physical, and technical safeguards (including written policies and procedures) to protect the confidentiality, integrity, and availability of PHI that it creates, receives, maintains, or transmits on Practice’s behalf against reasonably anticipated threats or hazards to the security and integrity of the PHI as required by the Security Rule. OTTO shall ensure that any agent or Subcontractor to whom OTTO provides PHI has implemented and will continue to maintain administrative, physical, and technical safeguards (including written policies and procedures) to protect the confidentiality, integrity, and availability of PHI as required by the Security Rule.
. OTTO shall enter into a written agreement meeting the requirements of 45 C.F.R. §§ 164.504(e) and 164.314(a)(2) with each Subcontractor (including, without limitation, a Subcontractor that is an agent under applicable law) that creates, receives, maintains, or transmits PHI on behalf of OTTO. OTTO shall ensure that the written agreement with each Subcontractor obligates the Subcontractor to comply with restrictions and conditions that are at least as restrictive as the restrictions and conditions that apply to OTTO under the BAA.
- Reporting of Violations
. OTTO shall report to Practice in writing each Security Incident or Use or Disclosure that is made by OTTO, members of its workforce, or agents or Subcontractors that is not specifically permitted by the BAA no later than ten (10) business days after becoming aware of such Security Incident or non-permitted Use or Disclosure, in accordance with the notice provisions set forth herein. OTTO further agrees to notify Practice of any suspected access, Use, or Disclosure of data in violation of any applicable federal or state laws or regulations without unreasonable delay, and in no case later than thirty (30) calendar days after discovery. In the event of a Breach, OTTO may delay notifying Practice upon a request from law enforcement. At Practice’s request, OTTO agrees, to the extent possible, to identify each Individual whose PHI has been or is reasonably believed by OTTO to have been accessed, acquired or Disclosed during the Security Incident and/or Breach; the date and scope of the Security Incident and/or Breach; OTTO’s response to the Security Incident and/or Breach, and the identity of the party responsible for causing the Security Incident and/or Breach, if known. OTTO also agrees to provide Practice with sufficient information to permit Practice to comply with Breach Notification Rule’s requirements or applicable state law requirements. OTTO shall cooperate reasonably and coordinate with Practice in the investigation of any violation of the BAA’s requirements and/or any Security Incident or Breach. OTTO shall cooperate reasonably and coordinate with Practice in the preparation of any reports or notices to the Individual, a regulatory body, or any third party required to be made under the HIPAA Rules, the HITECH Act, or any other federal or state laws, rules, or regulations. If OTTO determines that a reportable Breach of Unsecured PHI has occurred, OTTO shall provide a written report to Practice without unreasonable delay but no later than twenty (20) calendar days after discovery of the Breach. To the extent that information is available to OTTO, OTTO’s written report to Practice shall be in accordance with 45 C.F.R. §164.410(c).
- Breach Pattern or Practice by OTTO
. OTTO agrees that if OTTO knows of a pattern of activity or practice of OTTO that constitutes a material breach of OTTO’s obligations under the BAA, OTTO shall take reasonable steps to cure the breach or end the violation. OTTO agrees that if the steps are unsuccessful, OTTO shall terminate the BAA, or if termination is not feasible, report the problem to the Secretary.
- Mitigation of Harmful Effects
. OTTO agrees to mitigate, to the extent practicable, any harmful effect that is known to OTTO of a Use or Disclosure of PHI by OTTO in violation of the BAA.
- Third-Party Agreements
. Pursuant to 45 CFR §§ 164.308(b) and 164.502(e), OTTO agrees to ensure that any agent and/or Subcontractor, to whom it provides PHI that is created, received, transmitted, or maintained by OTTO on behalf of Practice agrees in a written business associate agreement to the same restrictions and conditions that apply through the BAA to OTTO with respect to such information. If OTTO is aware of a pattern or practice of an agent and/or Subcontractor that constitutes a material breach or violation by the agent and/or Subcontractor of any such restrictions or conditions, OTTO shall take reasonable steps to cure the breach or end the violation, as applicable, and if such steps are unsuccessful, to terminate the contract or arrangement with such agent and/or subagent.
- Availability of Books and Records
. OTTO agrees to make available to Practice or Secretary, within twenty (20) calendar days or such time as reasonably designated by the Secretary, any PHI and internal practices, books, records, accounts, and other sources of information, including policies and procedures, relating to the Use and Disclosure of PHI created, received, maintained, or transmitted by OTTO on Practice’s behalf for purposes of the Secretary determining Practice’s compliance with the Privacy Rule.
. To the extent that OTTO possesses or maintains a Designated Record Set, OTTO agrees to provide access, at the request of Practice, to PHI in a Designated Record Set to the Practice or, as directed by Practice, to the Individual or an Individual’s designee, within twenty (20) calendar days of such request order to meet the requirements under 45 CFR § 164.524. If an Individual makes a request for access to PHI directly to OTTO, OTTO shall notify Practice of the request within three (3) business days of such request and will cooperate with and allow Practice to respond to the Individual or Individual’s designee.
. To the extent that OTTO possesses or maintains a Designated Record Set, OTTO agrees to make any amendment(s) to PHI in a Designated Record Set that Practice directs or agrees to pursuant to 45 CFR § 164.526 in a manner reasonably requested by Practice within forty (40) calendar days of the request. If an Individual requests that OTTO make an amendment to PHI, OTTO shall notify Practice of the request within three (3) business days of such request and will cooperate with and allow Practice to respond to the Individual or Individual’s designee.
- Documentation of Disclosures
. OTTO agrees to document such Disclosures of PHI that it has made and information related to such Disclosures as would be required for Practice to respond to an Individual’s request for an accounting of Disclosures of PHI in accordance with 45 CFR § 164.528. OTTO further agrees to implement a process that allows for an accounting to be collected and maintained by OTTO and its agents and/or Subcontractors for at least six (6) years prior to the request. At a minimum, the information collected and maintained shall include:
- The date of the Disclosure;
- The name of the entity or person who received PHI and, if known, the address of the entity or person;
- A brief description of PHI Disclosed; and
- A brief statement of purpose of the Disclosure that reasonably informs the Individual of the basis for the Disclosure, or a copy of the written request for Disclosure by the Secretary or under 45 C.F.R. § 164.512, if any.
- Accounting of Disclosures
. OTTO agrees to provide to Practice or an Individual, within forty (40) days, information collected in accordance with Section 2.11 of the BAA in order that Practice may respond to an Individual’s request for an accounting of Disclosures of PHI in accordance with 45 CFR § 164.528 and the HITECH Act. OTTO agrees that such accounting obligations shall survive termination of the BAA and shall continue as long as OTTO maintains PHI created, received, maintained, or transmitted pursuant to the BAA. If multiple Disclosures of PHI have been made to the Secretary or the same person or entity under 45 C.F.R. § 164.512, OTTO shall also include in its Disclosures the frequency, periodicity, or number of Disclosures made during the accounting periods as well as the date of the last Disclosure during the accounting period. If an Individual makes a request for an accounting of Disclosure to OTTO, OTTO shall notify Practice of the request within three (3) business days of such request and will cooperate with and allow Practice to respond to the Individual or Individual’s designee.
- Minimum Necessary
. OTTO agrees to request, Use, and Disclose only the minimum amount of PHI necessary to accomplish the purpose of the request, Use, or Disclosure.
- Compliance with Administrative Obligations
. OTTO agrees to comply with any administrative requirements imposed on it in its capacity as a business associate by the HIPAA Rules and the HITECH Act.
- Compliance with Electronic Transmission Standards
. OTTO agrees to comply with all applicable standards and requirements of the HIPAA Rules and the HITECH Act regarding the transmission of PHI in an electronic format in connection with any transaction for which the Secretary has adopted a standard (“Covered Transaction” ) no less than thirty (30) days before prior to the applicable compliance dates established by the Secretary. OTTO shall require all of its agents and/or Subcontractors, if any, to comply with this Section 2.15.
Permitted Uses and Disclosures by OTTO
- General Use and Disclosure
. Except as otherwise limited by the BAA, OTTO may Use or Disclose PHI on behalf of, or to provide the following services to, Practice: legal counsel, defense or prosecution of litigation on Practice’s behalf, assistance with regulatory requirements, accreditation, certification, licensure, or operational issues, and any other legal services provided to Practice, if such Use or Disclosure of PHI would not violate:
- The Privacy Rule, the Security Rule, and the HITECH Act if done by Practice; or
- OTTO’s minimum necessary policies and procedures.
- Specific Uses and Disclosures.
- Except as otherwise limited in the BAA, OTTO may use PHI for:
- The proper management and administration and to carry out OTTO’s legal responsibilities, provided that Disclosures are:
- Required by Law; or
- OTTO obtains reasonable assurances from the person to whom the information is Disclosed that:
- PHI will remain confidential and Used or further Disclosed only as Required by Law or for the purpose for which it was Disclosed to the person; and
- The person notifies OTTO of any instances of which it is aware in which confidentiality of PHI has been Breached.
- To provide data aggregation services relating to the Health Care Operations of Practice as permitted by 45 CFR § 164.504(e)(2) (i)(B), if required or permitted under the Service Agreement;
- The proper management and administration and to carry out OTTO’s legal responsibilities, provided that Disclosures are:
- Except as otherwise limited in the BAA, OTTO may use PHI for:
- To create de-identified PHI; or
- To report violations of law to appropriate federal and state authorities, consistent with 45 CFR § 164.502(j)(1).
Obligations of Practice
- Notice of Privacy Practices
. Practice shall provide OTTO with a copy of Practice’s Notice of Privacy Practices and notify OTTO of any limitation(s) therein to the extent that such limitation(s) may affect OTTO’s Use or Disclosure of PHI in accordance with 45 CFR § 164.520.
- Notification of Individual Authorization Revocations
. Practice shall notify OTTO of any changes in, or revocations of, an Individual’s authorization to Use and/or Disclose PHI, to the extent that such changes may affect OTTO’s Use or Disclosure of PHI.
- Notification of Restrictions
. Practice shall notify OTTO of any restriction to the Use or Disclosure of PHI to which Practice has agreed, in accordance with 45 CFR § 164.522, to the extent that such restriction may affect OTTO’s Use or Disclosure of PHI.
- Notification of Amendments
. Practice shall notify OTTO of any amendment to PHI to which Practice has agreed that affects a Designated Record Set maintained by OTTO.
- Permissible PHI Disclosures
. Practice will not request OTTO to Use or Disclose PHI in any manner that would not be permissible under the Privacy Rule if done by Practice.
Term and Termination
. The BAA shall be effective as of date the BAA is executed by both Parties and shall continue until OTTO returns or destroys all PHI created or received by OTTO on Practice’s behalf, including any copies of PHI, or until OTTO determines that such return or destruction is infeasible.
- Termination for Cause
. Upon Practice’s knowledge of a material breach by OTTO, Practice shall either:
- Provide an opportunity for OTTO to cure the breach or end the violation within a specified period of time and terminate the BAA if OTTO does not cure the breach or end the violation within the time specified by Practice; or
- Immediately terminate the BAA if OTTO has breached a material term of the BAA and cure is not possible.
If neither termination nor cure is feasible, Practice shall report the violation to the Secretary.
- Effect of Termination.
- Except as provided in paragraphs (d) and (e) of this Section 5.3, upon termination of the BAA, for any reason, after consultation with Practice, OTTO shall return or destroy all PHI created, received, maintained, or transmitted by OTTO on behalf of Practice. This provision shall apply to PHI that is in the possession of OTTO’s agents and/or Subcontractors. OTTO and its agents and/or Subcontractors shall retain no copies of PHI.
- If the PHI is returned, OTTO will return via a commercially reasonable method mutually acceptable to the Parties (for example on a protected zip drive), the PHI of the patient users in OTTO’s possession by virtue of OTTO providing hosting services. In the event Practice needs additional transition support, OTTO will provide the same to Practice on a time and materials basis.
- If OTTO destroys the PHI, (i) destruction with regards to paper, film, or other hard copy media, means shredding or destruction such that the PHI cannot be read or otherwise reconstructed, and (ii) destruction with respect to electronic media requires that the media is cleared, purged or destroyed such that the PHI cannot be retrieved.
- If OTTO determines that it is infeasible to return or destroy the PHI, OTTO shall notify Practice of the conditions that make the PHI’s return or destruction infeasible. Thereafter, OTTO shall extend the BAA’s protection to such PHI and limit such PHI’s further Use and Disclosure to those purposes that make the return or destruction infeasible, for so long as OTTO maintains such PHI.
- The preceding provisions of this Section 5.3 shall not apply to the extent that PHI is maintained in OTTO’s possession pursuant to its record retention procedures. Nevertheless, the BAA’s protections shall remain in effect as to that PHI as long as OTTO retains such PHI.
- Relationship to Service Agreement
. The provisions of the BAA control with respect to PHI that OTTO receives from or on behalf of Practice. The terms and provisions of the BAA supersede any conflicting or inconsistent terms and provisions of the Service Agreement, including all exhibits or other attachments and all documents incorporated by reference, to the extent of such conflict or inconsistency.
. The Parties expressly acknowledge that it is, and shall continue to be, their intent to comply fully with all relevant federal, state, and local laws, regulations, and rules. If a Party believes in good faith that any provision of the BAA fails to comply with the then-current requirements under the HIPAA Rules, the HITECH Act or Colorado law, such Party shall notify the other Party in writing. The Parties agree to take such action as is necessary to amend the BAA from time to time as is necessary for Practice to comply with the requirements of the HIPAA Rules, the HITECH Act or Colorado law. The Parties will have thirty (30) calendar days to negotiate in good faith to amend the BAA’s provisions such that is complies with the then-current legal requirements. If after thirty (30) days, the BAA is still not in compliance with the then-current law, either Party may terminate the BAA upon written notice to the other Party.
. Any ambiguity in the BAA shall be resolved to permit the Parties to comply with the HIPAA Rules, the HITECH Act, or Colorado law.
- Governing Law
. The BAA shall be governed by and interpreted in accordance with the laws of the State of Colorado without regard to its conflicts-of-law provisions. Jurisdiction and venue for any dispute relating to the BAA shall exclusively rest with the state and federal courts in the county in which Practice is located.
. A reference in the BAA to a section in the HIPAA Rules or the HITECH Act means the section as in effect or as amended.
- No Agency Relationship
. The Parties do not intend to establish expressly or by implication an agency relationship (as defined under federal common law of agency) between Practice and OTTO for the purposes of liability under the HIPAA Rules, the HITECH Act or Colorado law. No terms or provisions contained in the BAA shall be construed to make or render OTTO an agent of Practice.
- Survival of Certain Rights and Obligations
. OTTO’s rights and obligations under Sections 2.11 and 5.3 shall survive the BAA’s termination.
. No provision of the BAA or any breach thereof shall be deemed a waiver unless such waiver is in writing and signed by the Party against whom such waiver it sought to be enforced. No waiver of a breach shall constitute a waiver of or excuse for any different or subsequent breach.
. Neither Party may assign any of its rights under the BAA without the other Party’s prior written consent; provided that either party may assign all of its rights and obligations hereunder without such consent in connection with a permitted assignment of the Agreement.
. All notices, requests, demands, and other communications required or permitted to be given or made under the BAA shall be given or made in accordance with the notice provisions contained in the Agreement.
- Invalidity or Unenforceability
. If any provision of the BAA shall be held invalid or unenforceable, such invalidity or unenforceability shall attach only to such provision and shall not in any way affect or render invalid or unenforceable any other provision of the BAA.
. Nothing in the BAA shall be deemed to:
- Create any rights in third parties; or
- Waive the attorney-client, work product, or other privilege between Practice and OTTO arising under applicable law, except to the limited extent necessary to comply with the requirements of Section 2.8 or applicable law.
- Entire Agreement
. The BAA constitutes the complete agreement between OTTO and Practice relating to the matters specified in the BAA, and supersedes all prior representations or agreements, whether oral or written, with respect to such matters. No oral modification or waiver of any of the provisions of the BAA shall be binding on either OTTO or Practice.