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Evenly Mid–Atlantic, PLLC, Evenly DC, PLLC and Evenly Dentistry North, P.C. (“Evenly”)

Terms of Service

1. Orthodontic Services.  Evenly provides orthodontic services by its team of licensed orthodontists using clear aligner technology and proprietary dental monitoring.  Evenly provides Dentist with orthodontic consulting, aligner manufacturing, patient monitoring and communication, 3-D intraoral scanning equipment, treatment planning and business and administrative services for the applicable licensed dentist’s (“Dentist”) delivery of an aligner service.  Orders for custom aligners shall be made in accordance with applicable laws and regulations.  Evenly Opco, LLC (“Evenly Opco”), on behalf of Dentist, will provide non-professional administrative and business support services, including, billing and collection services reasonably necessary for the collection of charges, maintenance of accounts receivables resulting from orders of custom aligners and Dentist Services (as described below). Dentist authorizes Evenly Opco to submit bills and collect receivables from patients and insurance plans for Dentist Services rendered by Dentist or furnished under the supervision of Dentist related to the custom aligners and administer the deposit of all such collected amounts to Dentist.
2. Dentist Services.  Dentist will (i) schedule patients, provide consultation, confirm patients’ oral health is sufficient to allow for custom aligner therapy, supervise the Evenly Treatment Coordinator, perform interproximal reduction, attachment placement and attachment removal as necessary; and (ii) assist the Evenly orthodontist with treating and monitoring patients’ dental and periodontal health during orthodontic treatment (“Dentist Services”). Dentist may directly bill patients and insurance plans for services rendered outside the scope of the Dentist Services.
3. Fees.  For the performance of their duties, Evenly Opco, on behalf of Evenly and Dentist shall separately bill patients, their financially responsible parties and their insurance plans for services rendered by Dentist and separately by Evenly in accordance with the fee schedule set forth below.  Fees billed for services rendered by Dentist or billed for services rendered by Evenly shall not be construed to be in return for the referral of patients or the splitting or division of fees. The tiers in the fee schedule are based on the predictability and degree of teeth movement set forth in each patient’s treatment plan. 
 
Product
Tier 7
Tier 6
Tier 5
Tier 4
Tier 3
Tier 2
Tier 1
Patient Fee
$6,500
$6,000
$5,500
$5,000
$4,200
$3,600
$2,000
Evenly Fee
$5,200
$4,800
$4,400
$4,000
$3,360
$2,880
$2,000
Dentist Fee
$1,300
$1,200
$1,100
$1,000
$840
$720
$500

  

4. Ownership and Maintenance of Patient Records.  Patient treatment and other dental records shall remain the property of the Dentist and Evenly shall have access to such records as may be reasonably necessary for Evenly and Evenly Opco to perform its obligations. The parties agree to comply with the Health Insurance Portability and Accountability Act of 1996 and current and future regulations (collectively, “HIPAA”) and any applicable state laws and regulations that govern the confidentiality and privacy of health care information.

5. Confidentiality.  All non-public, confidential or proprietary information of each party or its affiliates, including without limitation specifications, samples, patterns, designs, plans, drawings, documents, data, trade secrets, business operations, customer lists, pricing, discounts or rebates, disclosed by such party (“Disclosing Party”) or any of its affiliates or their respective employees, agents or representatives to the other party (“Recipient”),  is confidential and shall not be disseminated. Recipient agrees that any breach of this Section will cause irrevocable harm and a remedy at law for such breach would be inadequate.

6. Termination. Upon termination, any patients then in-treatment shall be continued in the normal course, and any payments that would ordinarily be required to be made with respect to such patients shall be made timely in the normal course.  After termination or expiration the parties shall: (i) reasonably cooperate to avoid any instance of patient abandonment, (ii) reasonably exchange information to the extent necessary to further patient welfare consistent with legal and ethical requirements, (iii) cooperate in good faith to ensure the appropriate billing and collections for goods and services rendered by Dentist or Evenly, and (iv) use commercially reasonable efforts to promptly forward communications intended for the other that may be received.  All payment obligations shall survive termination.  In addition, notwithstanding termination or confidentiality obligations, each party shall be permitted to retain Patient information or confidential information to the extent necessary to comply with law, substantiate expenses, provide services to or on behalf of Patients, or defend itself from claims or litigation. These Terms of Service may be terminated at any time by written notice to the other party. Termination by a party shall not act as a waiver of any breach of these Terms of Service and shall not act as a release of any party from any liability for breach of such party's obligations herein.

7. Insurance. Evenly maintains professional liability insurance providing professional liability coverage for all services provided by Dentist and Evenly to Dentist’s patients in connection with orthodontic services in the amount of $1,000,000.00 per occurrence and $3,000,000.00 aggregate. Each party will, at its own expense, maintain and carry insurance which includes, the following:

i. General Liability: no less than $1,000,000 per occurrence for personal or bodily injury and property damage.

ii. Worker’s Compensation: Statutory for state of hire.

8. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained herein will be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and, except as set forth in these Terms of Service, neither party will have authority to contract for or bind the other party in any manner whatsoever. No relationship of exclusivity will be construed from anything contained herein.  

9. Severability. If any term or provision contained herein is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability will not affect any other term or provision contained herein or invalidate or render unenforceable such term or provision in any other jurisdiction, except to the extent that a party would be materially and unfairly prejudiced thereby. 

10. Notices.  Notices and other communications required or permitted under these Terms of Service must be in writing and each party’s last known business address.  

11. Governing Law; Jurisdiction.  These Terms of Service are governed by the laws of Washington D.C., without regard to conflict of laws principles.  With respect to claims for injunctive or other equitable relief pursuant to Section 5, the parties hereby submit to the exclusive jurisdiction of the state and federal courts located in the Washington D.C. area in any action or proceeding arising from or related to these Terms of Service.  The parties waive any defense of inconvenient forum to the maintenance of any action or proceeding so brought. 

12. Arbitration.  Except for claims for injunctive or other equitable relief pursuant to Section 5, all controversies, claims and disputes arising from or relating to these Terms of Service or with respect to the aligner-related services provided by Evenly or Dentist will be resolved by final and binding arbitration before a single neutral arbitrator located in Washington D.C., conducted under the applicable rules of JAMS.  EACH PARTY EXPRESSLY WAIVES ITS RIGHT TO HAVE ANY CONTROVERSIES, CLAIMS OR DISPUTE ARISING FROM OR RELATED TO THESE TERMS OF SERVICE DECIDED BY A COURT OR JURY.

 

BUSINESS ASSOCIATE ADDENDUM
TO TERMS OF SERVICE

I.  General Provisions.

Section I.1.  Status of Parties Under HIPAA. The parties acknowledge and agree that [Dentist] (“Covered Entity”) is a Covered Entity and Evenly Opco, LLC (“Evenly Opco”) is a Business Associate of Covered Entity when Evenly Opco creates, receives, maintains or transmits Protected Health Information on behalf of Covered Entity (“PHI”).

Section I.2.  Effect. To the extent that Evenly Opco receives PHI in order to perform Business Associate activities, the terms and provisions of this Addendum shall supersede any conflicting or inconsistent terms and provisions in these Terms of Service to the extent of such conflict or inconsistency.

Section I.3.  Defined Terms. Capitalized terms used in this Addendum without definition shall have the respective meanings assigned to such terms by the Administrative Simplification section of the Health Insurance Portability and Accountability Act of 1996, the Health Information Technology for Economic and Clinical Health Act and their implementing regulations as amended from time to time (collectively, “HIPAA”).

Section I.4.  HIPAA Amendments. Any future amendments to HIPAA affecting business associate contracts are hereby incorporated by reference into this Addendum as if set forth in this Addendum in their entirety, effective on the later of the effective date of this Addendum or such subsequent date as may be specified by HIPAA.
II.  Obligations of Evenly Opco.
Section II.1.  Use and Disclosure of PHI. Evenly Opco may use and disclose PHI as permitted or required under these Terms of Service (including this Addendum) or as required by law, but shall not otherwise use or disclose any PHI. Evenly Opco shall not use or disclose PHI received from Covered Entity in any manner that would constitute a violation of HIPAA if so used or disclosed by Covered Entity (except as set forth in Sections 2.1(a), (b) and (c) of this Addendum). To the extent Evenly Opco carries out any of Covered Entity’s obligations under the HIPAA privacy standards, Evenly Opco shall comply with the requirements of the HIPAA privacy standards that apply to Covered Entity in the performance of such obligations. Without limiting the generality of the foregoing, Evenly Opco is permitted to use or disclose PHI as set forth below:
a.  Evenly Opco may use PHI internally for Evenly Opco’s proper management and administration or to carry out its legal responsibilities; b.  Evenly Opco may disclose PHI to a third party for Evenly Opco’s proper management and administration, provided that the disclosure is required by law or Evenly Opco obtains reasonable assurances from the third party to whom the PHI is to be disclosed that the third party will (1) protect the confidentiality of the PHI, (2) only use or further disclose the PHI as required by law or for the purpose for which the PHI was disclosed to the third party and (3) notify Covered Entity of any instances of which the third party is aware in which the confidentiality of the PHI has been breached;
c.  Evenly Opco may use PHI to provide Data Aggregation services relating to the Health Care Operations of Covered Entity if required or permitted under these Terms of Service; and
d. Evenly Opco may use PHI to create de-identified health information in accordance with the HIPAA de-identification requirements. Evenly Opco may disclose de-identified health information for any purpose permitted by law.
Section II.2.  Safeguards. Evenly Opco shall use appropriate safeguards to prevent the use or disclosure of PHI other than as permitted or required by this Addendum. In addition, Evenly Opco shall implement Administrative Safeguards, Physical Safeguards and Technical Safeguards that reasonably and appropriately protect the Confidentiality, Integrity and Availability of PHI transmitted or maintained in Electronic Media (“EPHI”) that it creates, receives, maintains or transmits on behalf of Covered Entity. Evenly Opco shall comply with the HIPAA Security Rule with respect to EPHI.
Section II.3. Minimum Necessary Standard. To the extent required by the “minimum necessary” requirements of HIPAA, Evenly Opco shall only request, use and disclose the minimum amount of PHI necessary to accomplish the purpose of the request, use or disclosure.
Section II.4. Mitigation. Evenly Opco shall take reasonable steps to mitigate, to the extent practicable, any harmful effect (that is known to Evenly Opco) of a use or disclosure of PHI by Evenly Opco in violation of this Addendum.
Section II.5.  Trading Partner Agreement. Evenly Opco shall not take any of the following actions: (a) change the definition, Data Condition, or use of a Data Element or Segment in a Standard, except where necessary to implement state or federal law, or to protect against fraud and abuse, (b) add any Data Elements or Segments to the maximum defined Data Set, (c) use any code or Data Elements that are either marked “not used” in the Standard’s Implementation Specification or are not in the Standard’s Implementation Specification(s), or (d) change the meaning or intent of the Standard’s Implementation Specification(s).
Section II.6. Subcontractors. Evenly Opco 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 Evenly Opco. Evenly Opco 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 Evenly Opco under this Addendum.
Section II.7. Reporting Requirements.
a.  If Evenly Opco becomes aware of a use or disclosure of PHI in violation of these Terms of Service by Evenly Opco or a third party to which Evenly Opco disclosed PHI, Evenly Opco shall report the use or disclosure to Covered Entity without unreasonable delay.
b. Evenly Opco shall report any Security Incident involving EPHI of which it becomes aware in the following manner: (1) any actual, successful Security Incident will be reported to Covered Entity in writing without unreasonable delay, and (2) notice is hereby provided of the ongoing occurrence of attempted, unsuccessful Security Incidents.
c. Evenly Opco shall, following the discovery of a Breach of Unsecured PHI, notify Covered Entity of the Breach in accordance with 45 C.F.R. § 164.410 without unreasonable delay and in no case later than 60 days after discovery of the Breach.
Section II.8. Access to PHI. Within 15 business days of a written request by Covered Entity for access to PHI about an Individual contained in any Designated Record Set of Covered Entity maintained by Evenly Opco, if any, Evenly Opco shall make available to Covered Entity such PHI for so long as Evenly Opco maintains such information in the Designated Record Set. If Evenly Opco receives a request for access to PHI directly from an Individual, Evenly Opco shall forward such request to Covered Entity within ten business days. Covered Entity shall have the sole responsibility to make decisions regarding whether to approve a request for access to PHI.
Section II.9. Availability of PHI for Amendment. Within 15 business days of receipt of a written request from Covered Entity for the amendment of an Individual’s PHI contained in any Designated Record Set of Covered Entity maintained by Evenly Opco, if any, Evenly Opco shall provide such information to Covered Entity for amendment and incorporate any such amendments in the PHI (for so long as Evenly Opco maintains such information in the Designated Record Set) as required by 45 C.F.R. § 164.526. If Evenly Opco receives a request for amendment to PHI directly from an Individual, Evenly Opco shall forward such request to Covered Entity within ten business days. Covered Entity shall have the sole responsibility to make decisions regarding whether to approve a request for an amendment to PHI.
Section II.10. Accounting of Disclosures. Within 30 business days of written notice by Covered Entity to Evenly Opco that it has received a request for an accounting of disclosures of PHI (other than disclosures to which an exception to the accounting requirement applies), Evenly Opco shall make available to Covered Entity such information as is in Evenly Opco’s possession and is required for Covered Entity to make the accounting required by 45 C.F.R. § 164.528. If Evenly Opco receives a request for an accounting directly from an Individual, Evenly Opco shall forward such request to Covered Entity within ten business days. Covered Entity shall have the sole responsibility to provide an accounting of disclosures to the Individual.
Section II.11.  Availability of Books and Records. Following reasonable advance written notice, Evenly Opco shall make its internal practices, books and records relating to the use and disclosure of PHI received from, or created or received by Evenly Opco on behalf of, Covered Entity available to the Secretary for purposes of determining Covered Entity’s compliance with HIPAA.
III. Obligations of Covered Entity.
Section III.1. Permissible Requests. Covered Entity shall not request Evenly Opco to use or disclose PHI in any manner that would not be permissible under HIPAA if done directly by Covered Entity (except as provided in Sections 2.1(a), (b) and (c) of this Addendum).
Section III.2. Minimum Necessary PHI. When Covered Entity discloses PHI to Evenly Opco, Covered Entity shall provide the minimum amount of PHI necessary for the accomplishment of Evenly Opco’s purpose. Section III.3. Permissions; Restrictions. Covered Entity represents and warrants that it has obtained and will obtain any consents, authorizations and/or other legal permissions required under HIPAA and other applicable law for the disclosure of PHI to Evenly Opco. Covered Entity shall notify Evenly Opco of any changes in, or revocation of, the permission by an Individual to use or disclose his or her PHI, to the extent that such changes may affect Evenly Opco’s use or disclosure of PHI. Covered Entity shall not agree to any restriction on the use or disclosure of PHI under 45 C.F.R. § 164.522 that restricts Evenly Opco’s use or disclosure of PHI under these Terms of Service unless such restriction is required by law or Evenly Opco grants its written consent, which consent shall not be unreasonably withheld.
Section III.4. Notice of Privacy Practices. Except as required by law, with Evenly Opco’s consent or as set forth in these Terms of Service, Covered Entity shall not include any limitation in the Covered Entity’s notice of privacy practices that limits Evenly Opco’s use or disclosure of PHI under these Terms of Service.
IV. Termination of these Terms of Service.
Section IV.1. Termination Upon Breach of this Addendum. Any other provision of these Terms of Service notwithstanding, either party (the “Non-Breaching Party”) may terminate these Terms of Service upon 30 days advance written notice to the other party (the “Breaching Party”) in the event that the Breaching Party breaches this Addendum in any material respect and such breach is not cured to the reasonable satisfaction of the Non-Breaching Party within such 30-day period. 
Section IV.2. Return or Destruction of PHI upon Termination. Upon expiration or earlier termination of these Terms of Service, Evenly Opco shall either return or destroy all PHI received from Covered Entity or created or received by Evenly Opco on behalf of Covered Entity and which Evenly Opco still maintains in any form. Notwithstanding the foregoing, to the extent that Evenly Opco reasonably determines that it is not feasible to return or destroy such PHI, the terms and provisions of this Addendum shall survive termination of these Terms of Service and such PHI shall be used or disclosed solely for such purpose or purposes which prevented the return or destruction of such PHI.
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