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Terms of Service
4PATIENTCARE INTERNET MARKETING CONSULTING AGREEMENT
This agreement sets forth the terms under which 4PatientCare (“Agency”) will provide the above named business (“Client”) with practice enhancement services. This document constitutes the entire agreement between 4PatientCare and the Subscriber unless amended by a subsequent written, signed agreement between the two parties. The parties agree as follows: 1.
The Parties agree that the Agency is being retained for execution of the following Internet Marketing objectives and services (“Services”). a) Agency shall create and manage Client’s Pay Per Click (PPC) campaign for Google AdWords (Google) and Bing Ads (Bing/Yahoo) search engines. The campaign includes keywords to target, ad copy, campaign settings, campaign structuring and results tracking of leads generated.. b) Agency shall create a Web site for the purpose of executing the campaign more efficiently and tracking campaign results more accurately. The Parties agree to use a 3rd party call tracking service c) Within 15 (fifteen) calendar days after the end of each prior month, Agency shall provide Client with a monthly report for the PPC campaign results with Key Performance Indicators (KPIs) that shall include standard metrics on a Per-Location or Per-Practice basis, such as clicks, investment, conversions (leads generated) and Cost Per Lead. d) Client agrees and understands that Agency owns the PPC accounts, 3rd party tracking accounts and campaign content. 2.
Client and Agency agree to a monthly PPC budget per location (noted elsewhere in this agreement). The click budget can be changed at any time, via email notice (subject to confirmation of receipt and acknowledgement as such via email). Client agrees and understands that Agency shall have the ability to average out the click budget across either the prior or subsequent 1-2 months should the budget be exceeded in any one calendar month. For example, if the budget is exceeded in July by 20%, but it was under budget by 25% in June, then the average of these are not under budget. So if an overage does occur, it shall be averaged with the preceding 1 or 2 months or following 1 or 2 months such that for a 3 month period the average per month is within the agreed to budget. Client shall reimburse Agency for the click costs incurred each month. 3.
This Agreement shall continue perpetually on a month-to-month basis. Client or Agency may terminate this Agreement any time prior to the start of a new calendar month to end in the current month. 4.
Client understands and agrees that Agency makes no representations or warranties whatsoever regarding (i) the success or likelihood of success of Agency’s efforts to increase traffic, leads, sales or the overall profitability of the marketing efforts made on behalf of Client, (ii) the completeness or accuracy of any work performed by the Agency, or (iii) the results or impact of the Agency’s performance of any of the Services. 5.
In connection with Agency’s performance hereunder, it is contemplated that Client may supply to Agency certain non-public or proprietary information concerning the Client (“Confidential Information”). The Client agrees to use its best efforts to appropriately mark all such information that is delivered in written form. Agency agrees to use the Confidential Information solely for the purpose of rendering Services pursuant to and in accordance with this Agreement and shall not, without the prior written consent of Client disclose any Confidential Information to any person, other than its officers, directors, employees, and outside advisors, provided however that the foregoing shall not apply to any information which becomes publicly available other than as a result of the breach of Agency’s undertaking hereunder, or that which Agency is required to disclose by judicial process in connection with any action, suit, proceeding or claim. 6.
Nothing herein contained shall be construed to limit or restrict Agency or its affiliates in conducting such business or in rendering such consulting advice and services to other businesses whether they offer related or similar competing services or not except that Agency is hereby granting exclusivity to Client such that no competing businesses shall be serviced by Agency for the purposes of PPC within Client’s defined geographical locations. For the purposes of clarity, Agency may offer other non Pay Per Click services to similar or competing businesses within Client’s geographical area. Agency may also offer PPC services to similar or competing businesses outside of the geographical area of Client that Agency is providing PPC services to Client for. 7.
The Client will be solely responsible for any and all fees and expenses, charged by the advertising Web sites mentioned herein utilized for delivery of the Services (with the agreed to budget cap). 8.
Client agrees to indemnify and hold harmless Agency from any and all losses, claims, damages, expenses (including reasonable fees, disbursements, and other charges of Counsel), actions, proceedings, or investigations (whether formal or informal), or threats thereof (collectively, the “Claims”), based upon, relating to, or arising in connection with Agency’s performance of its obligations hereunder (or lack thereof). This hold harmless clause excludes acts of negligence or gross negligence but remains in force for the simple absence of due care. 9.
(a) Further Actions. At any time and from time to time, each party agrees, at its expense, to take such actions and to execute and deliver such documents as may be reasonably necessary to effectuate the purposes of this Agreement. (b) Entire Agreement/Modification. This Agreement sets forth the entire understanding of the parties with respect to the subject matter, and may be modified only by a written instrument duly executed by the party to be bound. (c) Notices. Any notice or other communication required or permitted to be given hereunder shall be in writing whose receipt of which must be acknowledge by return email, fax or mail or if no acknowledgement is received must be mailed by certified mail, return receipt requested, or delivered against receipt to the party to whom it is to be given at the address of such party set forth on the first page of this Agreement (or to such address as the party shall have furnished in writing in accordance with the provisions of this section). (d) Waiver. Any waiver by any party of a breach of any provision of this Agreement shall not operate as or be construed to be a waiver of any other breach of that provision or any breach of any other provision of this Agreement. (e) Binding Effect. The provision of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns, provided, however, that any assignment by any party of its rights under this Agreement without the written consent of the other party shall be void. (f) Breach and Cure. Should either Party be in breach of this Agreement, they will have a 14 (fourteen) day period, after receiving written notice thereof (with acknowledgement via email or postal mail), in which they can cure the breach before the agreement is terminated. Agreement may only be terminated without standard notice as defined herein if the Breach is not cured. (g) Damages. In the event of a breach by one party of any covenant, representation, warranty or other term of this Agreement, the other party shall be relieved of any obligations it may have hereunder, and in addition to the rights and remedies granted hereunder, shall be entitled to all other recourse provided by applicable law. (h) Severability. If any provision of this Agreement is invalid, illegal or enforceable, the balance of this Agreement shall remain in effect, and if any provision is inapplicable to any person or circumstance, it shall nevertheless remain applicable to any other persons and circumstances. (i) Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed original, but all of which together shall constitute one and the same instrument. (j) Prior Agreements. This Agreement supersedes any and all agreements made in the past, both written or verbal, and as such cancels any and all previous agreements. (k) Corporate Authority. The execution, delivery and performance of this Agreement by Client has been duly authorized by all necessary corporate action of Client (and constitutes the legal, valid and legally binding obligation of Client.) (l) Legal Venue. Any controversy or claim arising out of or relating hereto or a breach hereof, shall be settled by arbitration before three arbitrators (selected from persons having experience with and knowledge of the web services and computer business, at least one of whom shall be an attorney) in Los Angeles, CA, and administered by the American Arbitration Association. Any provisional or equitable remedy available from a court of law shall be available from the arbitrators. The award of the arbitrators shall be enforceable in any court of competent jurisdiction. 10.
Unless otherwise noted elsewhere in this agreement, the following compensation will apply: a) Agency is charging a one-time web site creation fee of $499. b) Agency is charging a one-time PPC campaign setup fee of $299. c) Agency is charging $299 per location per month to manage and optimize the campaign. d) The Parties agree to use a 3rd party call tracking service (CallRail.com). Client shall be responsible for paying the fees to said call tracking service, billed through 4PatientCare, not totally more than $30 per location per month.
Agree to 4PatientCare Terms of Service
The foregoing has been read, understood and is agreed to.
Electronic HIPAA Business Associate Agreement between 4PatientCare and Subscriber
The following HIPAA BA Agreement supersedes all prior HIPAA BA Agreements executed between 4PatientCare and Subscriber, with respect to the subject matter hereof.
A "business associate" is a person or entity, other than a member of the workforce of a covered entity, who performs functions or activities on behalf of, or provides certain services to, a covered entity that involve access by the business associate to protected health information. A "business associate" also is a subcontractor that creates, receives, maintains, or transmits protected health information on behalf of another business associate. The HIPAA Rules generally require that covered entities and business associates enter into contracts with their business associates to ensure that the business associates will appropriately safeguard protected health information. The business associate contract also serves to clarify and limit, as appropriate, the permissible uses and disclosures of protected health information by the business associate, based on the relationship between the parties and the activities or services being performed by the business associate. A business associate may use or disclose protected health information only as permitted or required by its business associate contract or as required by law. A business associate is directly liable under the HIPAA Rules and subject to civil and, in some cases, criminal penalties for making uses and disclosures of protected health information that are not authorized by its contract or required by law. A business associate also is directly liable and subject to civil penalties for failing to safeguard electronic protected health information in accordance with the HIPAA Security Rule.
A written contract between a covered entity and a business associate must: (1) establish the permitted and required uses and disclosures of protected health information by the business associate; (2) provide that the business associate will not use or further disclose the information other than as permitted or required by the contract or as required by law; (3) require the business associate to implement appropriate safeguards to prevent unauthorized use or disclosure of the information, including implementing requirements of the HIPAA Security Rule with regard to electronic protected health information; (4) require the business associate to report to the covered entity any use or disclosure of the information not provided for by its contract, including incidents that constitute breaches of unsecured protected health information; (5) require the business associate to disclose protected health information as specified in its contract to satisfy a covered entity's obligation with respect to individuals' requests for copies of their protected health information, as well as make available protected health information for amendments (and incorporate any amendments, if required) and accountings; (6) to the extent the business associate is to carry out a covered entity's obligation under the Privacy Rule, require the business associate to comply with the requirements applicable to the obligation; (7) require the business associate to make available to HHS its internal practices, books, and records relating to the use and disclosure of protected health information received from, or created or received by the business associate on behalf of, the covered entity for purposes of HHS determining the covered entity's compliance with the HIPAA Privacy Rule; (8) at termination of the contract, if feasible, require the business associate to return or destroy all protected health information received from, or created or received by the business associate on behalf of, the covered entity; (9) require the business associate to ensure that any subcontractors it may engage on its behalf that will have access to protected health information agree to the same restrictions and conditions that apply to the business associate with respect to such information; and (10) authorize termination of the contract by the covered entity if the business associate violates a material term of the contract. Contracts between business associates and business associates that are subcontractors are subject to these same requirements.
The following terms used in this Agreement shall have the same meaning as those terms in the HIPAA Rules: Breach, Data Aggregation, Designated Record Set, Disclosure, Health Care Operations, Individual, Minimum Necessary, Notice of Privacy Practices, Protected Health Information, Required By Law, Secretary, Security Incident, Subcontractor, Unsecured Protected Health Information, and Use.
(a) Business Associate. "Business Associate" shall generally have the same meaning as the term "business associate" at 45 CFR 160.103, and in reference to the party to this agreement, shall mean 4PatientCare.
(b) Covered Entity. "Covered Entity" shall generally have the same meaning as the term "covered entity" at 45 CFR 160.103, and in reference to the party to this agreement, shall mean Subscriber
(c) HIPAA Rules. "HIPAA Rules" shall mean the Privacy, Security, Breach Notification, and Enforcement Rules at 45 CFR Part 160 and Part 164.
Obligations and Activities of Business Associate
Business Associate agrees to:
(a) Not use or disclose protected health information other than as permitted or required by the Agreement or as required by law;
(b) Use appropriate safeguards, and comply with Subpart C of 45 CFR Part 164 with respect to electronic protected health information, to prevent use or disclosure of protected health information other than as provided for by the Agreement;
(c) Report to covered entity any use or disclosure of protected health information not provided for by the Agreement of which it becomes aware, including breaches of unsecured protected health information as required at 45 CFR 164.410, and any security incident of which it becomes aware;
(d) In accordance with 45 CFR 164.502(e)(1)(ii) and 164.308(b)(2), if applicable, ensure that any subcontractors that create, receive, maintain, or transmit protected health information on behalf of the business associate agree to the same restrictions, conditions, and requirements that apply to the business associate with respect to such information;
(e) Make available protected health information in a designated record set to the covered entity, individual or the individual's designee as necessary to satisfy covered entity's obligations under 45 CFR 164.524;
(f) Make any amendment(s) to protected health information in a designated record set as directed or agreed to by the covered entity pursuant to 45 CFR 164.526, or take other measures as necessary to satisfy covered entity's obligations under 45 CFR 164.526;
(g) Maintain and make available the information required to provide an accounting of disclosures to the covered entity or individual as necessary to satisfy covered entity's obligations under 45 CFR 164.528;
(h) To the extent the business associate is to carry out one or more of covered entity's obligation(s) under Subpart E of 45 CFR Part 164, comply with the requirements of Subpart E that apply to the covered entity in the performance of such obligation(s); and (i) Make its internal practices, books, and records available to the Secretary for purposes of determining compliance with the HIPAA Rules.
Permitted Uses and Disclosures by Business Associate
(a) Business associate may only use or disclose protected health information as necessary to perform the services set forth in Service Agreement. The business associate is authorized to use protected health information to de-identify the information in accordance with 45 CFR 164.514(a)-(c).
(b) Business associate may use or disclose protected health information as required by law.
(c) Business associate agrees to make uses and disclosures and requests for protected health information consistent with covered entity's minimum necessary policies and procedures.
(d) Business associate may not use or disclose protected health information in a manner that would violate Subpart E of 45 CFR Part 164.
(e) Business associate may use protected health information for the proper management and administration of the business associate or to carry out the legal responsibilities of the business associate.
(f) Business associate may provide data aggregation services relating to the health care operations of the covered entity.
Provisions for Covered Entity to Inform Business Associate of Privacy Practices and Restrictions (a) Covered entity shall notify business associate of any limitation(s) in the notice of privacy practices of covered entity under 45 CFR 164.520, to the extent that such limitation may affect business associate's use or disclosure of protected health information.
(b) Covered entity shall notify business associate of any changes in, or revocation of, the permission by an individual to use or disclose his or her protected health information, to the extent that such changes may affect business associate's use or disclosure of protected health information.
(c) Covered entity shall notify business associate of any restriction on the use or disclosure of protected health information that covered entity has agreed to or is required to abide by under 45 CFR 164.522, to the extent that such restriction may affect business associate's use or disclosure of protected health information.
Permissible Requests by Covered Entity
Covered entity shall not request business associate to use or disclose protected health information in any manner that would not be permissible under Subpart E of 45 CFR Part 164 if done by covered entity.
Term and Termination
(a) Term. The Term of this Agreement shall be effective as of the start date of the Covered Entity - Business Associate contract, and shall terminate on termination of said contract.
(b) Termination for Cause. Business associate authorizes termination of this Agreement by covered entity, if covered entity determines business associate has violated a material term of the Agreement and business associate has not cured the breach or ended the violation within the time specified and agreed to by covered entity and Business Associate.
(c) Obligations of Business Associate Upon Termination. Upon termination of this Agreement for any reason, business associate, with respect to protected health information received from covered entity, or created, maintained, or received by business associate on behalf of covered entity, shall continue to use appropriate safeguards and comply with Subpart C of 45 CFR Part 164 with respect to electronic protected health information to prevenuse or disclosure of the protected health information, other than as provided for in this Section, for as long as business associate retains the protected health information.
(d) Survival. The obligations of business associate under this Section shall survive the termination of this Agreement.
Usage by Subscriber
Subscriber may use this service during the Term of all agreements between Subscriber and 4PatientCare to assist in authorized patient communications. The system should not be relied upon for critical communications, alarms and the like where a system failure could cause costly, fatal or otherwise serious damage or injury. The system must also only be utilized for communications that conform with all local, state or federal regulations, including HIPAA and HITECH.
Subscriber agrees to defend, indemnify and hold harmless 4PatientCare, its officers, directors, employees, representatives and agents from and against any and all claims, demands, actions, causes of action, penalties, judgments and liabilities (including court costs and reasonable attorney's fees) based upon or arising out of any act, omission, negligence, misconduct or breach of any material condition of this Agreement by Subscriber, or its subcontractors, or their respective officers, directors, employees, representatives and agents. Nothing in this paragraph, however, shall prevent Subscriber from taking action against 4PatientCare for any intentional act by 4PatientCare, its officers, directors, employees, representatives or agents.
(a) Regulatory References. A reference in this Agreement to a section in the HIPAA Rules means the section as in effect or as amended.
(b) Amendment. The Parties agree to take such action as is necessary to amend this Agreement from time to time as is necessary for compliance with the requirements of the HIPAA Rules and any other applicable law.
(c) Interpretation. Any ambiguity in this Agreement shall be interpreted to permit compliance with the HIPAA Rules.
Agree to Electronic HIPAA Business Associate Agreement between 4PatientCare and Subscriber
The foregoing has been read, understood and is agreed to.
Special Notes (Optional)
Authorized Representative of Business
Date Format: MM slash DD slash YYYY
John Harding, 4PatientCare Vice President
Date Format: MM slash DD slash YYYY
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