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Bariatric Advantage Privacy Policy

Bariatric Advantage Privacy Policy  

Last Updated: July 29, 2024 

This Privacy Policy (this Privacy Policy or Policy) describes the types of personal information Bariatric Advantage (“BA” or “We”) may collect from or about you or that you may provide when you visit the BA website located at https://www.bariatricadvantage.com/ (the “Website”), or use any related services where we provide a link to this Policy (together with the Website, our Services). This Policy describes our practices for collecting, using, maintaining, protecting, and disclosing that personal information. The information contained in this Privacy Policy is subject to any further information contained in any relevant supplementary privacy notice, including the California Privacy Notice, Colorado Privacy Notice and the Mexico Privacy Notice supplements below.

This Privacy Policy applies to information we collect about you:

• Through the Services; and
• Through your email, text, and other electronic communications with us.

This Privacy Policy does not apply to:

• Information collected by any third party, including through any application or content that may link to or be accessible from or through the Services; and
• Job applicants, employees, contractors, owners, directors, or officers where the personal information we collect about those individuals relates to their current, former, or potential role with us.  For job applicants in California, please see our California Applicant Privacy Notice available where you apply for employment with us. 

Please read this policy carefully to understand our policies and practices regarding your personal information and how we will treat it.

1. Children

The Services are not intended to be used by people under 18 years of age. If you are under 18, do not use or access the Services. If we learn we have collected or received personal information from a person under 18 through such individual’s use of the Services, we will delete that information. If you believe we might have any information from or about a person under 18 that was collected thorough such individual’s use of the Services, please contact us at [email protected].

1. Personal Information We Collect and How We Collect It

The personal information we collect depends on how you interact with us, the Services you use, and the choices you make. We may collect certain types of personal information about you from different sources and in various ways when you use our Services, including information you provide directly, information collected automatically, information from third-party data sources, and data we infer or generate from other data.

1. Information you provide directly. We collect personal information you provide to us. For example: 

• Name and contact information: name, username or alias, and contact details such as email address, your postal or billing address, and telephone number. 
• Demographic data: In some cases, such as when you register or participate in surveys or engage customer support, we request that you provide age, gender, and similar demographic details. 
• Commercial and financial information: If you make a purchase or other financial transaction, we collect information about the products or Services purchased or obtained, as well as credit card numbers, financial account information, and other payment details.  
• Content: If you send us email messages, call customer support, or otherwise communicate with us, we collect and/or record those communications.  

• Professional information: If you are a practitioner who registers with us, we collect your practitioner category, license or certification information, years in business and whether you have ever filed for bankruptcy.  
• Sensitive Personal Information:  In some cases, we collect sensitive personal information you provide including:

• Government identification numbers: As part of the practitioner account registration process, we collect Social Security Numbers and Employer Identification Numbers. 
• Account access information: We collect information such as a username or account number in combination with a password, security or access code, or other credential that allows access to an account. 
• Health data: As part of some of our product or Service offerings, in our surveys, or when you engage customer support, we collect and analyze information concerning your health. 

1. Information we collect automatically. When you use our Services, we collect some information automatically (see Cookies, Mobile IDs, and Similar Technologies). For example: 

• Identifiers and device information: When you visit our Website, our web servers automatically log your Internet Protocol (IP) address and information about your device, including device identifiers (such as MAC address); device type; and your device’s operating system, browser, and other software including type, version, language, settings, and configuration. As further described below, our Services and retrieve cookie identifiers, mobile IDs, and other data. 
• Geolocation:  We infer your general geographic location (such as city, state, and country) based on your IP address. 
• Usage data: We automatically log your activity on our Website, apps and connected products, including the URL of the website from which you came to our sites, pages you viewed, how long you spent on a page, access times, and other details about your use of and actions on our website. 

1. Information we create or generate. We infer new information from other data we collect, including using automated means to generate information about your likely preferences or other characteristics (“inferences”). For example, we infer your interests in our products or services based on your browsing activities. 

1. Information we obtain from third-party sources. We also obtain the types of information described above from third parties. These third-party sources include, for example: 

• Third-party partners:  Third-party applications and services, including social networks you choose to connect with or interact with through our Services. 
• Co-branding/marketing partners:  Partners with which we offer co-branded services or engage in joint marketing activities. 
• Service providers:  Third parties that collect or provide data in connection with work they do on our behalf, for example companies that determine your device’s location based on its IP address. 

We have collected the same categories of personal information described above in the twelve months prior to the date of this Privacy Policy.

When you are asked to provide personal information in connection with your use of the Services, you may decline. You may use web browser or operating system controls to prevent certain types of automatic data collection, but if you choose not to provide or allow information that is necessary for certain Services or features, those Services or features may not be available or fully functional. 

Please note that we do not engage in the automated processing of personal information to create profiles about individuals used in furtherance of decisions with legal or other similarly significant effects, such as the provision or denial of financial or lending services, housing, insurance, or access to essential goods or services. 

1. Our Use of Personal Information

We use the personal information we collect for the purposes described in this Privacy Policy or as otherwise disclosed to you. For example, we use personal information for the following purposes:

We may combine information we collect from different sources for these purposes and to provide a more seamless, consistent, and personalized experience. 

1. Our Disclosure of Personal Information

If you provide us with the name of your healthcare practitioner, or your healthcare practitioner’s code, we will share your history of purchase transactions as well as your use of your healthcare practitioner’s coupons or other offers.  Your healthcare practitioner’s use of the information we share is subject to their privacy policies and other policies, not this policy.

Third party analytics and advertising companies, some of which may be acting on our behalf as our service providers, also collect personal information through our website and apps including identifiers and device information (such as cookie IDs, device IDs, and IP address), geolocation data, usage data, and inferences based on and associated with that data, as described in the “Cookies” section of this Policy. These third-party vendors may combine this data across multiple sites to improve analytics for their own purpose and others. For example, we use Google Analytics on our website to help us understand how users interact with our website; you can learn how Google collects and uses information at www.google.com/policies/privacy/partners. 

Third-party analytics and advertising providers we use on our Website include, for example:  

Some of the data disclosures to these third parties may be considered a “sale” or “sharing” of personal information as defined under the laws of California and other U.S. states.  Please see the “Choice and Control” and “California Privacy Rights” sections below for more details. 

Please note that some of our Services also include integrations, references, or links to services provided by third parties whose privacy practices differ from ours. If you provide personal information to any of those third parties, or allow us to share personal information with them, that information is governed by their privacy statements. 

We disclose personal information with your consent or as we determine necessary to complete your transactions or provide the Services you have requested or authorized. In addition, we disclose personal information to different types of third parties as described below.  We disclose the information we collect to the following categories of third parties for operational business purposes: 

• Affiliates and subsidiaries 
• third party service providers and contractors, and 

• trusted business partners that support our provision of Services. 

We disclose the categories of personal information to the categories of third parties identified above for the following purposes: to manage customer, supplier and vendor accounts and relationships; process payments; verify customers’ identities; fulfill orders and transactions; engage in advertising and marketing; operate our IT systems and secure our systems; prevent fraud and other illegal activities; and to obtain professional advice about legal and accounting matters.

We may also disclose your personal information as required or permitted by law to comply with a subpoena or similar legal process or government request, or when we believe in good faith that disclosure is legally required or otherwise necessary to protect our rights and property or the rights, property, or safety of others, including to law enforcement agencies, and judicial and regulatory authorities. We may also disclose your personal information to third parties to help detect and protect against fraud or data security vulnerabilities. We may also disclose or transfer your personal information to a third party in the event of an actual or potential sale, merger, reorganization of our entity or other restructuring. 

We may disclose aggregated information about our users, and de-identified information in accordance with applicable law. 

1. Retention of Personal Information

We retain personal information for as long as necessary to provide the Services and fulfill the transactions you have requested, comply with our legal obligations, resolve disputes, enforce our agreements, and for other legitimate and lawful business purposes. Because these needs can vary for different data types in the context of different Services, actual retention periods can vary significantly based on criteria such as user expectations or consent, the sensitivity of the data, and our legal or contractual obligations. For example, this may result in retention of certain data:  

• For as long as you have an account with us or keep using our Services, and the length of time thereafter during which we may have a legitimate need to reference your personal information to address issues that may arise; 
• Subject to a legal obligation to which we are bound, for example, certain laws require us to keep records of your transactions for a certain period of time before we can delete them; or 
• As is advisable in light of our legal position, such as in regard to applicable statutes of limitations, litigation or regulatory investigations. 

1. Cookies, Mobile IDs, and Similar Technologies

We use cookies, web beacons, mobile analytics and advertising IDs, and similar technologies to operate our Website and online Services and to help collect data, including usage data, identifiers, and device information. 

• Cookies (or browser cookies). A cookie is a small text file placed by a website and stored by your browser on your device. A cookie can later be read when your browser connects to a web server in the same domain that placed the cookie. The text in a cookie contains a string of numbers and letters that may uniquely identify your device and can contain other information as well. This allows the web server to recognize your browser over time, each time it connects to that web server. 
• Web Beacons. Web beacons are electronic images (also referred to as clear gifs, pixel tags, and single-pixel gifs) that are contained within a website or email. When your browser opens a webpage or email that contains a web beacon, it automatically connects to the web server that hosts the image (typically operated by a third party). This allows that web server to log information about your device and to set and read its own cookies. In the same way, third-party content on our Website (such as embedded videos, plug-ins, or ads) results in your browser connecting to the third-party web server that hosts that content. We also include web beacons in our email messages or newsletters to tell us if you open and act on them. 
• Mobile Analytics and Advertising IDs. Mobile analytics and advertising IDs are generated by operating systems for mobile devices (iOS and Android) and can be accessed and used by apps in much the same way that websites access and use cookies. Our Services contain software that enables us and our third-party analytics and advertising partners to access these mobile IDs.

We, and our analytics and advertising partners, use these technologies in our Website, apps, and online Services to collect personal information (such as the pages you visit, the links you click on, and similar usage information, identifiers, and device information) when you use our Services, including personal information about your online activities over time and across different websites or online services.  This information is used to store your preferences and settings, enable you to sign-in, analyze how our Website and apps perform, track your interaction with the site or app, develop inferences, deliver, and tailor interest-based advertising, combat fraud, and fulfill other legitimate purposes. We and/or our partners also share the information we collect or infer with third parties for these purposes. For more information about the third-party analytics and advertising partners that collect personal information on our Services, please see the “Our Disclosure of Personal Information” section of this Policy.  

1. Choice and Control of Personal Information

We provide a variety of ways for you to control the personal information we hold about you, including choices about how we use that information. In some jurisdictions, these controls and choices may be enforceable as rights under applicable law.  

1. Access, portability, correction, and deletion. If you wish to access, copy, correct, or delete personal information about you that we hold, please contact us using the methods described in the “Contact Us” section of this Policy or as described in the “California Privacy Rights”, “Colorado Privacy Rights”, or “Mexico Privacy Rights” sections, if applicable.  

1. Communications preferences. You can choose whether to receive promotional communications from us by email, SMS, and telephone. If you receive promotional email or SMS messages from us and would like to stop, you can do so by following the directions in that message or by contacting us as described in the “Contact Us” section below. If you receive a sales call from us, you can ask to be placed on our do-not-call list. These choices do not apply to certain informational communications including surveys and mandatory Service communications.  

1. Targeted advertising. To opt-out from or otherwise control targeted advertising, you have options.  You can use the Global Privacy Control setting in a web browser or browser extension as described below. You can also use the opt-out controls offered by the organizations our advertising partners may participate in, which you can access at: 

• United States: NAI (http://optout.networkadvertising.org) and DAA (http://optout.aboutads.info/)  
• Canada: Digital Advertising Alliance of Canada (https://youradchoices.ca/) 
• Europe: European Digital Advertising Alliance (http://www.youronlinechoices.com/)

1. Data sales. Some privacy laws define “sale” broadly to include some of the disclosures described in the “Our Disclosure of Personal Information” section above. If you do not want us to share your personal information with unaffiliated or non-agent third, you can opt-out from such data “sales” by contacting us using the methods described in the “Contact Us” section of this Policy or as described in the “California Privacy Rights”, “Colorado Privacy Rights”, or “Mexico Privacy Rights” sections, if applicable.
2. Browser or platform controls.  You can also use the other cookie or mobile ID controls described below.  These choices are specific to the device or browser you are using. If you access our Services from other devices or browsers, take these actions from those systems to ensure your choices apply to the data collected when you use those systems. 

• Cookie controls.  Most web browsers are set to accept cookies by default. If you prefer, you can go to your browser settings to learn how to delete or reject cookies. If you choose to delete or reject cookies, this could affect certain features of our Website or other Services. If you choose to delete cookies, settings and preferences controlled by those cookies, including advertising preferences, may be deleted and may need to be recreated. 
• Global Privacy Control.  Some browsers and browser extensions support the “Global Privacy Control” (GPC) or similar controls that can send a signal to the websites you visit indicating your choice to opt-out from certain types of data processing, including data sales and/or targeted advertising, as specified by applicable law. When we detect such a signal, we will make reasonable efforts to respect your choices indicated by a GPC setting or similar control that is recognized by regulation or otherwise widely acknowledged as a valid opt-out preference signal. Please note the GPC does not work to opt you out for personal information that is associated solely with non-device identifier data such as your name or email address. If you would like more information about opt-out preference signals, including how to use them, the GPC website has additional information (https://globalprivacycontrol.org/).  
• Do Not Track.  Some browsers include a “Do Not Track” (DNT) setting that can send a signal to the websites you visit indicating you do not wish to be tracked. Unlike the GPC described above, there is not a common understanding of how to interpret the DNT signal; therefore, we do not respond to browser DNT signals. Instead, you can use the range of other tools to control data collection and use, including the GPC, cookie controls, and advertising controls described above. 

• Mobile advertising ID controls. iOS and Android operating systems provide options to limit tracking and/or reset the advertising IDs. 
• Email web beacons. Most email clients have settings that allow you to prevent the automatic downloading of images, including web beacons, which prevents the automatic connection to the web servers that host those images. 

1. Other Methods of Choice and Control. Except for the automated controls described above, if you send us a request to exercise these choices (including where they are enforceable as rights), to the extent permitted by applicable law, we may charge a fee or decline requests in certain cases. For example, we may decline requests where granting the request would be prohibited by law, could adversely affect the privacy or other rights of another person, would reveal a trade secret or other confidential information, or would interfere with a legal or business obligation that requires retention or use of the data. Further, we may decline a request where we are unable to authenticate you as the person to whom the data relates, the request is unreasonable or excessive, or where otherwise permitted by applicable law. In some jurisdictions, you may have a right to appeal our denial of a request, as described in the “California Privacy Rights”, “Colorado Privacy Rights”, or “Mexico Privacy Rights” sections. If you have questions about making an appeal, please contact us via the methods in the “Contact Us” section.  

1. Data Security

We take reasonable and appropriate steps intended to help protect personal information from unauthorized access, use, alteration, disclosure, and destruction.  To help us protect personal information, we ask you to use a strong password and never share your password with anyone or use the same password with other sites or accounts.  

1. Location of Personal Information

The personal information we collect may be stored and processed in your country or region, or in any other country where we or our affiliates, subsidiaries, or service providers process data. Currently, we primarily use data centers in the United States. The storage location(s) are chosen to operate efficiently and improve performance. We process and protect personal information, and require that our affiliates, subsidiaries and service providers process and protect personal information, in compliance with this Privacy Policy wherever the data is located. 

1. Changes to this Privacy Policy

We reserve the right to amend this Privacy Policy at our discretion when necessary to reflect changes in our Services, how we use personal information, or the applicable law. When we post changes to this Privacy Policy, we will revise the “Last Updated” date at the top of the Policy. If we make material changes to the statement, we will provide notice or obtain consent regarding such changes as may be required by law.  

1. Accessibility of this Privacy Policy

We are committed to ensuring that our communications are accessible to people with disabilities. To make accessibility-related requests or report barriers, please contact us at +1 800-692-9400. 

1. Contact Us

If you have any questions or comments about this Privacy Policy or wish to exercise any rights, submit requests, or appeal any of our decisions in connection with this Privacy Policy, please do not hesitate to contact us at: 

Phone: +1 800-692-9400 

Website: bariatricadvantage.com 

Email: [email protected]

Postal Address: 

Metagenics LLC. 

Attn: Privacy Office 

25 Enterprise, Suite 200, Aliso Viejo, CA, U.S.A., 92656 

If you need to access this Policy in an alternative format due to having a disability, please contact us at [email protected] or +1 800-692-9400. 

1. California Privacy Notice

This notice supplements the Privacy Policy set forth above with respect to specific rights granted under the California Consumer Privacy Act of 2018 as amended by the California Privacy Rights Act of 2020 (collectively the “CCPA”) to natural person California residents and provides information regarding how such California residents can exercise their rights under the CCPA.  This supplement is only relevant to you if you are a resident of California as determined in accordance with the CCPA.

1. Categories of Personal Information We Collect

We have collected some or all of the following categories of personal information from individuals within the last twelve (12) months:

1. Purposes and Sources

We collect personal information for the business or commercial purposes and from the sources set forth in “Our Use of Personal Information” and “Personal Information We Collect and How We Collect It” respectively, in the Privacy Policy above. We retain the categories of personal information set forth above in the Categories of Personal Information We Collect section of this California Privacy Notice only as long as is reasonably necessary for those business or commercial purposes set forth in “Our Use of Personal Information” in the Privacy Policy above, except as may be required under applicable law, court order or government regulations.

1. Disclosures

Within the last twelve (12) months, we have disclosed personal information collected in connection with this Website for a business purpose to the categories of third parties indicated in the chart below. We may also disclose your information to other parties as may be required by law or regulation, or in response to regulatory inquiries.

1. Rights Under the CCPA and other California Laws

The CCPA and other California laws provide certain rights with respect to the processing of your personal information, which are described below. 

1. Notice at Collection

At or before the time of collection, you have a right to receive notice of our practices, including the categories of personal information and sensitive personal information to be collected, the purposes for which such information is collected or used, whether such information is sold or shared, and how long such information is retained. You can find those details in this California Privacy Notice and in the Sections “Personal Information We Collect,” “Our Use of Personal Information”, “Our Disclosure of Personal Information”, and “Retention of Personal Information” in the Privacy Policy above. 

1. Disclosure and Access Rights

You have the right to ask us for the following information regarding our collection, use, disclosure and sale of personal information specific to you. Such information includes: 

• Specific pieces of personal information we have collected about you;  
• Categories of personal information we have collected about you;   
• Categories of sources from which such personal information was collected;  
• Whether we sold or disclosed your personal information to a third party, and if so, the categories of personal information each recipient obtained; 
• Categories of third parties to whom we sold or disclosed personal information for a business purpose; and  
• The business or commercial purpose for collecting or selling personal information. 

1. Right to Deletion of Personal Information

You have the right to request that we delete any of your personal information that we retain, subject to certain exceptions including, but not limited to, our compliance with U.S., state, local and non-U.S. laws, rules and regulations. We will notify you in writing if we cannot comply with a specific request and provide an explanation of the reasons. 

1. Right to Correction of Personal Information

You have the right to request that we correct any inaccuracies in the personal information that we retain, subject to certain statutory exceptions, including, but not limited to, our compliance with U.S., state, local and non-U.S. laws, rules and regulations. We will notify you in writing if we cannot comply with a specific request and provide an explanation of the reasons.

1. Right to Opt-Out of Selling or Sharing Personal Information About You

You have a right to opt-out from future “sales” or “sharing” of personal information as those terms are defined by the CCPA. Note that the CCPA defines “sell,” “share,” and “personal information” very broadly, and some of our disclosure of personal information described in this Policy may be considered a “sale” or “sharing” under those definitions. In particular, we let advertising and analytics providers collect identifiers (such as cookie IDs), email addresses, activity data (such as browsing or purchasing), device data, and geolocation data through our sites when you use our online services, but we do not “sell” or “share” any other types of personal information.   

If you do not wish for us or our partners to “sell” or “share” personal information relating to your visits to our sites for advertising purposes, you have the right to opt-out of such “sales” and “sharing.” If you opt-out, we will not share or make available such personal information in ways that are considered a “sale” or “sharing” under the CCPA.  However, we will continue to make available to our service providers some personal information to help us perform services that you request and/or on behalf of our business in accordance with this California Privacy Notice, the Privacy Policy and applicable law. Further, the opt-out applies to future “sales” and “sharing”, so it will not opt you out of the use of previously “sold” or “shared” personal information or stop all interest-based advertising. 

1. Right to Limit Use and Disclosure of Sensitive Personal Information

You have the right to limit our use of sensitive personal information for any purposes other than to provide the services or goods you request or as otherwise permitted by law.  

1. Rights Under California’s “Shine the Light” Law

California Civil Code Section 1798.83, also known as the “Shine the Light” law, permits California residents who have provided personal information to a business with which the individual has established a business relationship for personal, family, or household purposes to annually request, free of charge, information about the personal information (if any) disclosed to third parties for their direct marketing purposes in the preceding calendar year.  To make such a request, please contact us at +1 800-692-9400. Please note that businesses are required to respond to one request per resident per year and may not be required to respond to requests made by means other than through the designated phone number. 

1. How to Exercise Your CCPA Rights

To exercise your CCPA rights, contact us at +1 800-692-9400 or by clicking here. For such requests, we will first acknowledge receipt of your request within 10 business days of receipt of your request.  We will then provide a substantive response to your request as soon as we can, generally within 45 days from when we receive your request, although we may be allowed to take longer to process your request under certain circumstances.  If we expect your request is going to take us longer than normal to fulfill, we will let you know. 

To request that we limit our use of sensitive information, or to opt out of the sale or sharing of your personal information, click either “Your Privacy Choices” in the footer of our Website, or the green cookie icon in the bottom left of the website (whichever may be available).  

In some cases, the law may allow us to refuse to act on certain requests.  If this is the case, we will endeavor to provide you with an explanation as to why. 

1. Additional Information About California Privacy Rights

You may designate an agent to submit requests on your behalf under the CCPA. The agent can be a natural person or a business entity. If you would like to designate an agent to act on your behalf, and you designate the agent in writing, you and the agent will need to comply with our verification process:  

• Requests to Know, Delete or Correct Personal Information: If the agent submits a request, the agent will need to provide us with your signed permission indicating the agent has been authorized to submit the request on your behalf.  We will also require that you verify your identity directly with us or confirm with us that you provided the agent with permission to submit the request.  
• Requests to Opt-Out or Limit: If the agent submits a request to opt-out of the sale or sharing of personal information or limit use of sensitive personal information, the agent will need to provide us with your signed permission indicating the agent has been authorized to submit the opt-out or limit request on your behalf.   

If you designate an agent through a power of attorney, requests through an agent will be processed in accordance with California law pertaining to powers of attorney. Further, to provide, correct, or delete specific pieces of personal information we will need to verify your identity to the degree of certainty required by law. We will verify your request by asking you for two pieces of personal information and attempting to match those to information we maintain about you.  

1. No Discrimination

We will not discriminate against you for exercising your rights under the CCPA, including by denying service, suggesting that you will receive, or charging, different rates for services or suggesting that you will receive, or providing, a different level or quality of service to you. Finally, we will not discriminate against you for exercising your rights set out in the CCPA, including by denying service, suggesting that you will receive, or charging, different rates for services or suggesting that you will receive, or providing, a different level or quality of service to you.

1. Colorado Privacy Notice

1. Colorado Privacy Rights

If you are a Colorado resident and the processing of personal information about you is subject to the Colorado Privacy Act (“CPA”), you have certain rights with respect to that personal information. 

• Right to Know: The right to confirm whether or not we are processing your personal information and to access such data; 
• Right to a Copy:  The right to a portable copy of the personal information we have collected from you; 
• Right to Delete: The right to request deletion of personal information about you, subject to certain exceptions;   
• Right to Correct: The right to request correction of inaccurate personal information about you, taking into account the nature of personal information and purposes of processing such information; 
• Right to Opt-Out of Targeted Advertising: The right to request we stop future processing of personal information about you for such purposes; and 
• Right to Opt-Out of the Sale of Personal Information: The right to request we stop future processing of personal information about you for such purposes.  

1. How to Exercise Your CPA Rights

To exercise your CPA rights, contact us at +1 800-692-9400 or by clicking here.  We will respond to such requests within 45 days from when we receive your request, although we may be allowed to take longer to process your request under certain circumstances.  If we expect your request is going to take us longer than normal to fulfill, we will let you know. 

You can opt out of the sale of your personal information or the use of your personal information for targeted advertising by clicking either “Your Privacy Choices” in the footer of our Website, or the green cookie icon in the bottom left of the website (whichever may be available).

In some cases, the law may allow us to refuse to act on certain requests.  When this is the case, we will endeavor to provide you with an explanation as to why. 

1. Appealing Our Decisions Made in Response to Your Requests

In some cases, we may not act on your requests (for example, if another law applies that prevents us from deleting a piece of personal information). When this is the case, we will explain our reasons for not providing you with the information or taking the action you requested.     

Additionally, you have the right to appeal our decision by contacting us at +1 800-692-9400 or clicking here within 30 days after your receipt of our decision.  As part of your appeal, we request you provide us with information that we need (e.g., reference number) to identify denial of request.  We will respond to your appeal within 45 days of our receipt of the request, unless we need additional time to do so (up to 60 additional days), in which case we will notify you.   

1. Additional Information About Colorado Privacy Rights

You may designate an agent to submit opt-out requests on your behalf under the CPA.  

If you use an agent to submit such requests on your behalf, we will need to verify your identity and the agent will need to provide us with your signed permission indicating they have been authorized to submit the request on your behalf.   

Further, to provide, correct, or delete specific pieces of personal information we will need to verify your identity to a reasonable degree of certainty. We will verify your request by asking you for two pieces of personal information and attempting to match those to information we maintain about you.  

Finally, you have a right to not be discriminated against for exercising these rights set out in the CPA. 

1. Mexico Privacy Rights

If you are a Mexico resident and the processing of personal information about you is subject to Mexican data protection law, you have certain rights with respect to that information.  

You have the right to access, delete, and correct personal information about you. You also have the right to object to the processing of personal information about you. Under Mexican data protection law, we may process personal information about you after this Privacy Policy has been made available to you (unless you exercise your right to object to such processing). To exercise one or more of these rights, please send a detailed description of the rights you wish to exercise to the contact information listed above.

Bariatric Advantage Copyright Policy & Disclaimer

Thank you for visiting Metagenics' Web site. The content, arrangement and layout of this site, including, but not limited to, the trademarks and text, are proprietary to Metagenics, and should not be copied, imitated, reproduced, displayed, distributed, or transmitted without the express permission of Metagenics. Any unauthorized use of the content, arrangement or layout of the site, or the trademarks found in the site may violate civil or criminal laws, including, but not limited to, copyright and trademark laws.

The information provided in this web site may not be construed as medical advice. It is merely for educational purposes and its accuracy is not guaranteed. Please consult with your physician or other medical care provider regarding any healthcare questions you may have.

INFORMATION ON THIS WEB SITE IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED.

Bariatric Advantage Customer Information

Information for Patients

Bariatric Advantage has been exclusively designed for use by the bariatric patient both pre and post surgery. The products were professionally formulated with input by experienced Bariatric Surgeons and well respected nutritional experts.

Did you know that nutritional deficiencies of vitamin C, vitamin E, carotenoids, retinal, thiamin, riboflavin, folate, pyrodoxine, serum antioxidants, vitamin B complex, Zinc, and other key nutritional markers exist in patients affected by obesity prior to surgery?

Were you also aware that some of these deficiencies may have been induced by drugs like Antihypertensives, Antidiabetic Agents, Anti-inflammatories, and Bile Acid Sequestrants?

Information for Physicians

Bariatric Advantage is enjoying a successful implementation of our advanced nutritional supplement line in Surgical Practices and Support Groups around the country. This line has been professionally formulated with key research and development offered from practicing Bariatric Surgeons, well known and respected Naturopathic Doctors, and Support Group Directors.

To better understand our product offering and programming, please contact us directly at: (800) 898-6888.

Sales Tax – Customer is responsible for all sales, use, transaction privilege taxes, gross receipts, excise or similar transaction taxes (“Sales Taxes”) related to any products or other items purchased. Bariatric Advantage will typically collect Sales Tax at the time of sale and will either (1) remit Sales Taxes to the taxing authority directly or (2) remit the Sales Taxes to the Practitioners who will then remit Sales Taxes to the states. However, Customer agrees that Bariatric Advantage retains the right to subsequent payment from Customer of Sales Taxes, including if a taxing authority asserts that Sales Tax is due with respect to a product for which no Sales Tax was originally collected or Sales Tax was undercollected by Bariatric Advantage. Customer agrees that it will not assert or participate in any class action against Bariatric Advantage related to Sales Taxes.  

Bariatric Advantage Authorized Reseller Policy

EXHIBIT A

Bariatric Advantage

PRODUCT CARE, CUSTOMER SERVICE, AND OTHER QUALITY CONTROLS

Authorized Reseller shall:

1.             Comply with all instructions provided by Bariatric Advantage regarding the storage, handling, shipping, disposal, or other aspect of the Products, including instructions provided on Product labels; store the Products in a sanitary environment away from direct sunlight; unless otherwise instructed by Bariatric Advantage, store the Products at room temperature in a cool dry place and tightly capped; handle the Products in accordance with good industrial hygiene and safety practices;

2.             Sell the Products in their original packaging;

3.             Not relabel, repackage, or otherwise alter the Products or their packaging (including refraining from separating bundled Products and refraining from bundling separate Products);

4.             Not remove, translate, or modify the contents of any label or literature on or accompanying the Products;

5.             Not tamper with, deface, or otherwise alter any serial number, UPC code, batch or lot code, or other identifying information on the Products or their packaging or dilute the Products;

6.             Not resell any Product that has been returned opened or repackaged;

7.             Inspect the Products and their packaging, promptly upon receipt of the Products, for damage, defects, broken seals, evidence of tampering, or other nonconformance (each, a “Defect”) and, if any Defect is identified, not offer the Product for sale and promptly report the Defect to Bariatric Advantage at (800) 898-6888;

8.             Manage Product inventory, in order to ensure freshness, on a “first-in, first-out” manner, with older inventory being sold before newer inventory of the same Product;

9.             Inspect Product inventory regularly for expired or soon-to-be expired Products, not sell any Products that are expired or within ninety (90) days of expiration, and destroy or dispose of expired or soon-to-be expired Products in accordance with instructions provided by Bariatric Advantage and applicable law;

10.          Become familiar with the special features of the Products marketed for sale and obtain sufficient Product knowledge to advise customers on the selection and safe use of the Products, as well as any applicable guarantee or return policy; be available to respond to customer questions and concerns both before and after sale of the Products and respond to customer inquiries promptly;

11.          Cooperate with Bariatric Advantage with respect to any Product tracking systems that Bariatric Advantage may implement from time to time;

12.          Cooperate with Bariatric Advantage with respect to any Product recall or other consumer safety information dissemination efforts;

13.          Report to Bariatric Advantage any customer complaint or adverse claim regarding the Products and assist Bariatric Advantage in investigating and resolving any such complaint or adverse claim; and

14.          Cooperate with Bariatric Advantage in the investigation and resolution of any quality or customer service issues related to the sale of the Products, including disclosing information regarding Product sources, shipment, and handling.

Bariatric Advantage Return Policy

Returns, Refunds, Shipping, Other

BARIATRIC ADVANTAGE 60-DAY SATISFACTION GUARANTEE

Bariatric Advantage 60-DAY SATISFACTION GUARANTEE

At Bariatric Advantage, we stand behind our products and quality controls. If for any reason you are not satisfied with a Bariatric Advantage product you purchased from us or one of our authorized sellers, you may request a refund or replacement product. Please note that because we are unable to control the quality of our products sold by unauthorized sellers, unless otherwise prohibited by law, the Bariatric Advantage 60-Day Satisfaction Guarantee (the “Guarantee”) is not available for products purchased from unauthorized sellers. The Guarantee is also limited to the original, end-user purchaser.

How to claim the Guarantee
To submit a Guarantee request, please call one of our Customer Service representatives at (800) 898-6888, then press 1 and have the information available regarding where and when you purchased your product. If your request is approved, you will then need to mail the remainder of your product, a proof of purchase, and your Guarantee approval confirmation number to:

Bariatric Advantage 8101-C Lenexa Dr. Lenexa, KS, 66214. United States

You must submit your Guarantee request within 60 days of the date of purchase. Please note that you are responsible for costs incurred in mailing your product and proof of purchase.

Guarantee guidelines

Bariatric Advantage reserves the right to verify information, require a valid proof of purchase, and deny Guarantee requests in its discretion in cases of suspected fraud or if the customer has abused the 60-Day Satisfaction Guarantee.

If you have any questions regarding whether a seller is an authorized Bariatric Advantage seller, please contact us at (800) 898-6888, then press 1.

Effective: February 1, 2023

Shipping Policy

• All packages are shipped using the United States Postal Service (USPS) or through FedEx. Each method of shipment contains methods of delivery confirmation and tracking. Once the third-party company has established the delivery of a shipment the terms of the transaction are then void, and Bariatric Advantage is not responsible for compensation of lost or stolen product. All concerns will then be addressed to the appropriate third-party for attempted reimbursement.
• Bariatric Advantage is not responsible for the shipping time of orders.
• Most orders are sent via United States Postal Service (First Class or Priority Mail) and generally arrive within 3-4 days (not including Sundays). Orders sent FedEx have a delivery time of 1-5 business days depending on recipient location and FedEx service used.
• Any order that is disputed for the length of its arrival time may be re-processed for FedEx Next Day Air shipping. However, additional fees WILL apply!
• All FedEx Next Day Air orders are subject to a 24 hour payment processing before the product is actually shipped.
• FedEx Next Day Air orders will NOT arrive on Saturday!
• FedEx Next Day Air orders placed AFTER 10:00 AM Pacific will not be shipped out until the next business day.
• Bariatric Advantage hours of operation are Monday-Friday, excluding holidays. Any shipment placed during non-business hours will be processed during our next scheduled business day.

Other Policies

• The Bariatric Advantage Monthly Re-Order program recipients may be subject to additional fees if the credit card information on file, at the time of processing, is declined on more than one occasion.
• Any attempted fraudulent use of discounts, applied to an order, may result in additional fees for compensation of dollar values lost.
• Probiotics do not routinely ship with ice packs. More Information

Batriatric Advantage Online^TM Webpage Agreement - Recommendation eStore

THIS BARIATRIC ADVANTAGE ONLINE™ WEBPAGE AGREEMENT – RECOMMENDATION ESTORE (“Agreement”) is effective as of the date signed by Practitioner (the “Effective Date”) by and between Bariatric Advantage, an operating division of Metagenics LLC, a Delaware limited liability company with offices at 25 Enterprise, Suite 200, Aliso Viejo, CA 92656 (“Bariatric Advantage”), and Practitioner (“Practitioner”).

RECITALS

A.         Bariatric Advantage is an operating division of Metagenics LLC, a life sciences company that manufactures nutritional products, dietary supplements, dietary ingredients, and medical foods for sale in commerce based upon Bariatric Advantage’s own formulas or recipes or upon formulas or recipes obtained pursuant to license (or which exist in the public domain).

B.         Bariatric Advantage has developed software (the “Software”) for the establishment and operation of separate webpages for the recommendations by healthcare practitioners of Bariatric Advantage products, which webpages are identified specifically to an individual healthcare practitioner and serve the needs of such individual practitioner’s own patients.

C.         Practitioner is interested in establishing a unique webpage (the “Webpage”) on Bariatric Advantage’s website, through which Practitioner may recommend to Practitioner’s patients Bariatric Advantage dietary supplements and medical foods, for the purposes of (i) providing patient convenience, (ii) meeting specified nutritional protocols established by Practitioner, (iii) improving patient compliance with such recommended protocols, and (iv) tracking patients’ actual compliance with such protocols.

D.         Bariatric Advantage desires to use Practitioner’s name and logo on the Webpage, and Practitioner is willing to grant Bariatric Advantage the right to use Practitioner’s name and logo on the Webpage, pursuant to the terms and conditions of this Agreement.

NOW, THEREFORE, the parties hereto hereby agree as follows:

1.         DEFINITIONS.  The terms set forth below shall be defined as follows:

1.1.      “Confidential Information” of a party is information which the party claiming confidentiality designates as “Confidential,” including, without limitation, any computer code, Content (as described below), other content, documentation, marketing plans or other similar information.  “Confidential Information” of Bariatric Advantage includes the source code of the Software.

1.2.      “Software” shall mean all software and any software tools, both in object code and source code form, which Bariatric Advantage has already developed (or which Bariatric Advantage subsequently develops) or which Bariatric Advantage licenses from a third party, for establishing and maintaining Practitioner’s Webpage.

1.3.      “Webpage” shall mean the unique page established using Practitioner’s name and logo, on Bariatric Advantage’s own website, using the Software, and maintained and supported on the Bariatric Advantage server.

2.         PURPOSE; LICENSE; CONTENT; SERVER; DEVELOPMENT SERVICES.

2.1.      Purpose.  The purpose of Practitioner’s Webpage shall include, without limitation, the dissemination of information, the display of Bariatric Advantage products for order and purchase, the presentation of advertising, and other purposes.

2.2.      License.  Practitioner hereby grants to Bariatric Advantage a non-exclusive, non-assignable license to use Practitioner’s name and logo for all uses necessary or appropriate to the operation of Practitioner’s Webpage, in accordance with the terms and conditions of this Agreement.

2.3.      Content of the Webpage.  The Webpage will be based upon Bariatric Advantage content.  The Webpage will use the Software to implement product purchasing, data collection, and information tracking.

2.4.      Server for the Webpage.  The Software and the Webpage will reside upon a server provided by Bariatric Advantage.

2.5.      Development Services.  Bariatric Advantage will provide design, programming, development and other services relating to the Webpage.

3.         WEBPAGE SUPPORT SERVICES.

Bariatric Advantage shall provide the following ongoing Webpage support to Practitioner.

3.1.      Establishment of Webpage on Bariatric Advantage Server.  Bariatric Advantage will establish Practitioner’s Webpage as part of Bariatric Advantage’s own website, which is on a server provided by Bariatric Advantage and under Bariatric Advantage’s control, support, and maintenance.

3.2.      Availability.  Unless otherwise agreed between the parties, Bariatric Advantage shall use commercially reasonable efforts to make Practitioner’s Webpage publicly available to users twenty-four (24) hours per day, seven (7) days per week.

3.3.      Content.  Practitioner shall not supplement, modify or alter any content on Practitioner’s Webpage, unless any such change has been consented to by Bariatric Advantage.  Bariatric Advantage will provide password protected access for Practitioner.

3.4.      Backup.  Bariatric Advantage shall maintain a complete and current copy of Bariatric Advantage’s website on a separate server.  In the event that service is interrupted to Bariatric Advantage’s website, the separate server shall be activated so that public access to Practitioner’s Webpage may continue uninterrupted or as close as possible under the circumstances.

3.5.      Privacy Policy; Patient Data.  TThe parties agree that a privacy policy shall exist that conforms with existing privacy laws and shall maintain that policy with respect to Practitioner’s Webpage.  Such privacy policy shall be subject to any additional privacy limitations placed by MasterCard, Visa or other Internet payment processing companies through which sales of Bariatric Advantage products by Bariatric Advantage from Practitioner’s Webpage may be charged.  Patient data will be maintained on a secure server provided by Bariatric Advantage.  Bariatric Advantage will use commercially reasonable efforts to provide Practitioner access to the patient data twenty four (24) hours per day, seven (7) days per week, and Bariatric Advantage will provide Practitioner with passcodes and technical assistance as may be necessary for permitting such access.  As a condition precedent to entering this Agreement, the parties agree to execute the HIPAA Business Associate Agreement in the form set forth as Exhibit A hereto.

4.         INVENTORY SERVICES.

4.1.      Shopping Cart Features. Bariatric Advantage will use its online shopping cart application which will be customized to manage the experience of visitors to Practitioner’s Webpage.

4.2.      Product Selection for the Webpage.  Practitioner is responsible for determining the applicable nutritional protocol, and for selecting the products, to support the needs of the patients who will be directed to Practitioner’s Webpage as a result of recommendations of Bariatric Advantage products by Practitioner.  Bariatric Advantage maintains an on-line catalog of products from which Practitioner may select to make Practitioner’s recommendations.

4.3.      Ordering from the Webpage.  Completed orders by patients of Bariatric Advantage products to be purchased from Bariatric Advantage will be communicated from Practitioner’s Webpage directly to Bariatric Advantage’s distribution center.  Products will be shipped from the distribution center to the patient using shipping documents and shipping labels that include Bariatric Advantage’s return address.

4.4.      Inventory Levels.  Throughout the Term of this Agreement, Bariatric Advantage shall use commercially reasonable efforts to maintain appropriate levels of inventory at the Bariatric Advantage distribution center to meet patients’ demand for the products listed on Practitioner’s Webpage.  Bariatric Advantage will establish inventory levels to reflect the actual sales performance of each product SKU.

4.5.      Shipping Charges; Undeliverable Shipments; Satisfaction Guarantee; Product Recalls.

4.5.1.   Shipping charges (from the Bariatric Advantage distribution center) will be paid by the patient.  Bariatric Advantage will determine and charge the appropriate shipping/handling charge per outgoing order.

4.5.2.   Bariatric Advantage will be responsible for undeliverable or damaged shipments from Bariatric Advantage to patients, and Bariatric Advantage will handle such damaged shipments according to its then-current policy regarding such shipments.

4.5.3.   Bariatric Advantage will specify the satisfaction guarantee policy to which product returns will be subject.

4.5.4.   Bariatric Advantage will be responsible for product recalls.

4.6.      Product Pricing.  Bariatric Advantage will price the products on Practitioner’s Webpage at Manufacturer’s Advertised Price (MAP).

5.         [THIS ARTICLE INTENTIONALLY OMITTED]

6.         PATIENT SUPPORT.

6.1       Practitioner Responsibility.  Practitioner shall be responsible for recommending particular products for use by the patient, including how much, how often, and for how long such products should be used.  Practitioner will be responsible for tracking protocol compliance on the part of patients.  Practitioner agrees that Practitioner shall only use the Webpage and the Software to communicate with patients for purposes that are permitted under the Health Insurance Portability and Accountability Act of 1996 and its implementing regulations (collectively, “HIPAA”) and other applicable law, such as for treatment purposes.

6.2       Bariatric Advantage Responsibility.  Bariatric Advantage shall be responsible for providing customer service for patients ordering products from Bariatric Advantage through Practitioner’s Webpage, as said service relates to informing patients of product specifications, shipment status, return authorizations, product promotions, and similar matters.  At the direction of Practitioner, Bariatric Advantage will use patient information to communicate with patients about refill reminders or about the availability of other products that Practitioner believes may aid in the treatment of the patient.

6.3       Communications.  Throughout each business day, on a necessary and appropriate basis (and in real time, if required), each party will keep the other informed of the support provided to patients.

7.         TERM AND TERMINATION.

7.1.      Term.  This Agreement shall have an initial term of one (1) year from the Effective Date (the “Initial Term”); thereafter, this Agreement may be renewed for additional terms of one (1) year (each, a “Renewal Term” and, together with the Initial Term, the “Term”) and shall be considered automatically so renewed if neither party has given the other written notice of intention to terminate this Agreement at least sixty (60) days prior to the expiration of the Initial Term or the then-current Renewal Term.

7.2.      Termination for Cause.  Either party may terminate this Agreement upon a material breach of this Agreement by the other party (or, in the case of a breach by Practitioner, the breach of an applicable Bariatric Advantage policy), if such breach remains uncured for thirty (30) days following written notice to the breaching party.

7.3.      Termination without Cause.  Either party may terminate this Agreement, at any time, without cause, by giving at least ninety (90) days’ prior written notice to the other party.

7.4.      Effect of Termination.

7.4.1       Removal of Name and logo.  Upon the termination of this Agreement for any reason, Bariatric Advantage shall promptly remove Practitioner’s name and logo from the Webpage and shall use commercially reasonable efforts to remove any references to Practitioner’s name and logo from Bariatric Advantage’s website.

7.4.2       Termination of Licenses.  Upon termination of this Agreement for any reason, any license granted hereunder shall terminate.

7.4.3      Survival.  Sections 10, 11, 12, and 13 shall survive any termination or expiration of this Agreement.

8.         BARIATRIC ADVANTAGE WARRANTIES.

8.1.      Work Product Warranties.  Bariatric Advantage represents and warrants to Practitioner that the Software, the Webpage, and Bariatric Advantage-made changes to the Webpage do not and will not (a) infringe on the intellectual property rights of any third party or (b) violate any law or regulation.

8.2.      Support and Maintenance Warranties.  Bariatric Advantage further represents and warrants to Practitioner that, at all times during which Bariatric Advantage provides web-hosting services pursuant to Section 3 of this Agreement, it will use commercially reasonable efforts to ensure the following:

8.2.1.   Availability of the Webpage.  The Webpage will be publicly available to users a minimum of ninety-five percent (95%) of the time, seven (7) days per week, twenty-four (24) hours per day.  Customer Service will be available during business hours, Monday through Friday, 8:00 am – 5:00 pm (Pacific Time).

8.2.2.   Bandwidth of Bariatric Advantage’s Website.  The Bariatric Advantage website’s connection to the Internet shall be sufficient to provide accessibility commensurate with that expected by the consuming public and of a grade equal to that provided by similar sites.  The goal shall be to prevent any user delays from accessing Practitioner’s Webpage, subject to Internet-related delays that are not within Bariatric Advantage’s control.

8.2.3.   Security of Bariatric Advantage’s Website.  Bariatric Advantage shall prevent unauthorized access to any shadow site of its website, other restricted areas of its website, and any databases or other sensitive material generated from or used in conjunction with its website, provided, however, that Practitioner understands and acknowledges that Bariatric Advantage shall not be held responsible for the effects of malicious hacking or other concerted criminal and illegal activities on the part of third parties in relation hereto.

9.         PRACTITIONER WARRANTIES.

Practitioner represents and warrants that Practitioner will not use any advertising material with respect to the products available on Practitioner’s Webpage that:  (a) infringes any intellectual property right of any third party, (b) is false or provides a misleading statement of material fact or (c) violates any law or regulation.

10.       OWNERSHIP.

10.1.    Ownership of the Website.  Practitioner acknowledges and agrees that Bariatric Advantage owns the Software and all of the computer code on, and relating to, Bariatric Advantage’s website.

10.2.    Ownership of Content.  All content contributed by Bariatric Advantage shall be owned by Bariatric Advantage.  Practitioner acknowledges and agrees that any content used on Practitioner’s Webpage shall at all times remain the property of Bariatric Advantage (or its licensor).  Practitioner shall have no rights in such content, other than the limited right to use such content for the purposes expressly set forth in this Agreement.

11.       INDEMNIFICATION.

11.1.    Bariatric Advantage Indemnification.  Bariatric Advantage shall defend and hold harmless Practitioner against any third party claim, action, suit or proceeding (each, a “Claim”) (a) arising from any breach of this Agreement by Bariatric Advantage, (b) arising from the negligent acts or omissions or the willful misconduct of Bariatric Advantage or (c) alleging product liability or other Claim relating to the integrity of a Bariatric Advantage product.  Bariatric Advantage shall indemnify Practitioner for losses, damages, liabilities and reasonable expenses (including, without limitation, reasonable attorneys’ fees) and costs incurred by Practitioner in defending against any such Claim.

11.2.    Practitioner Indemnification.  Practitioner shall defend and hold harmless Bariatric Advantage against any Claim (a) arising from any breach of this Agreement by Practitioner or (b) arising from the negligent acts or omissions or the willful misconduct of Practitioner.  Practitioner shall indemnify Bariatric Advantage for losses, damages, liabilities and reasonable expenses (including, without limitation, reasonable attorneys’ fees) and costs incurred by Bariatric Advantage in defending against any such Claim.

11.3.    Mechanics of Indemnification.  The indemnified party’s obligations are conditioned upon the indemnified party:  (a) giving the indemnifying party prompt written notice of any Claim for which the indemnified party is seeking indemnity; (b) granting control of the defense and settlement of such Claim to the indemnifying party; and (c) reasonably cooperating with the indemnifying party at the indemnifying party’s expense.

12.       CONFIDENTIAL INFORMATION.

Each party shall hold the Confidential Information of the other party in confidence and shall not (i) disclose the other party’s Confidential Information to third parties or (ii) use the other party’s Confidential Information for any purpose other than the purposes of this Agreement.  Such restrictions shall not apply to information which (a) is already known by the recipient; (b) becomes, through no act or fault of the recipient, publicly known; (c) is received by the recipient from a third party without a restriction on disclosure or use; or (d) is independently developed by the recipient without reference to the other party’s Confidential Information.

13.       LIMITATION ON LIABILITY.

NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY OR TO ANY OTHER PERSON OR ENTITY FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER FOR BREACH OF CONTRACT, TORT, NEGLIGENCE, STRICT PRODUCT LIABILITY OR OTHERWISE (INCLUDING, WITHOUT LIMITATION, DAMAGES BASED ON LOSS OF PROFITS OR BUSINESS OPPORTUNITY), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

14.       EXCLUSIVITY; NON-COMPETITION.

Practitioner acknowledges that Bariatric Advantage is in the business of developing its own website and of providing associated services on a commercial basis and that, accordingly, Bariatric Advantage has developed, and will continue to develop, webpages for other parties whom Practitioner may consider competitive to Practitioner’s business.  Practitioner agrees that Bariatric Advantage shall continue to be free to develop webpages for other clients.  Bariatric Advantage shall not share with its other clients any identifiable data pertaining to Practitioner’s Webpage.

15.       COMPLIANCE WITH LAWS.

Each party shall perform its respective obligations under this Agreement in compliance with the applicable laws of the jurisdictions in which this Agreement is intended to be performed.

16.       GENERAL PROVISIONS.

16.1.    Governing Law; Venue.  This Agreement shall be governed by, and construed in accordance with, the laws of the State of California, without regard to conflict of law principles.  In the event that any dispute arises under this Agreement, the parties agree that proceedings will take place exclusively in the County of Orange, State of California.

16.2.    Severability; No Waiver.  If any provision of this Agreement is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way.  The parties agree to replace any invalid provision with a valid provision that most closely approximates the intent and economic effect of the invalid provision.  A waiver by either party of a breach of any provision of this Agreement will not operate or be interpreted as a waiver of any other or subsequent breach.

16.3.    Independent Contractors.  The parties to this Agreement are independent contractors and no agency, partnership, joint venture or employee-employer relationship is intended or created by this Agreement.  Except as contemplated by the obligations of each party under this Agreement, neither party shall have the power to obligate or bind the other party.  Personnel supplied by Bariatric Advantage shall work exclusively for Bariatric Advantage and shall not, for any purpose, be considered employees or agents of Practitioner.

16.4.    Entire Agreement; Amendment.  This Agreement, including any exhibits attached hereto and the provisions referenced in such Exhibits, sets forth the entire understanding and agreement of the parties and supersedes any and all oral or written agreements or understandings between the parties as to the subject matter of this Agreement.  Any amendments or changes to this Agreement must be in writing and signed by both parties.

IN WITNESS WHEREOF, the parties hereto have duly executed this BARIATRIC ADVANTAGE ONLINE™ WEBPAGE AGREEMENT – RECOMMENDATION ESTORE, effective as of the Effective Date.

By clicking “Accept”, I acknowledge that I have read and I accept these Terms and Conditions, and I acknowledge receipt of the Bariatric Advantage Authorized Reseller Policy,

https://www.bariatricadvantage.com/policies#authorized_reseller_policy.

EXHIBIT A

HIPAA Business Associate Agreement

THIS HIPAA BUSINESS ASSOCIATE AGREEMENT (this “Business Associate Agreement”) between Practitioner (“Practitioner” or “Covered Entity”) and Bariatric Advantage, an operating division of Metagenics LLC, a Delaware limited liability company with offices at 25 Enterprise, Suite 200, Aliso Viejo, CA 92656 (“Bariatric Advantage” or “Business Associate”) is effective as of the same date as the effective date of that certain BARIATRIC ADVANTAGE ONLINE™ WEBPAGE AGREEMENT – RECOMMENDATION ESTORE between Practitioner and Bariatric Advantage (the “Effective Date”).

WHEREAS, Practitioner is disclosing and/or making available certain data, which may include Protected Health Information as that term is defined in 45 C.F.R. § 160.103, to Bariatric Advantage;

WHEREAS, Practitioner has requested that Bariatric Advantage enter into a business associate agreement;

WHEREAS, Bariatric Advantage is willing, given its commitment to privacy and security protections, to sign a business associate agreement with Practitioner;

WHEREAS, Practitioner is or may be subject to the requirements of the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) and privacy and security regulations promulgated thereunder (45 C.F.R. Parts 160 and 164) (the “Privacy Regulations” and the “Security Regulations”);

WHEREAS, Practitioner and Bariatric Advantage seek to comply with those provisions under Subtitle D (Privacy) of the Health Information Technology for Economic and Clinical Health Act of 2009 (“HITECH”) that apply to covered entities and business associates, respectively; and

WHEREAS, Bariatric Advantage shall use Practitioner’s Protected Health Information as mutually agreed by the Parties (“the Activities”);

NOW, THEREFORE, the parties agree as follows:

1. Definitions.

A. Catch-all definitions.  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.

B. Specific definitions.

1. “Business Associate” shall generally have the same meaning as the term “business associate” at 45 C.F.R. § 160.103 and, in reference to the party to this Agreement, shall mean Bariatric Advantage, an operating division of Metagenics LLC.
2. “Covered Entity” shall generally have the same meaning as the term “covered entity” at 45 C.F.R. § 160.103 and, in reference to the party to this Agreement, shall mean Practitioner.
3. “HIPAA Rules” shall mean the Privacy, Security, Breach Notification, and Enforcement Rules at 45 C.F.R. Part 160 and Part 164.

      II. Obligations and Activities of Business Associate.

Business Associate agrees to:

1. Not use or disclose Protected Health Information other than as permitted or required by this Agreement or as Required By Law;
2. Use appropriate safeguards, and comply with Subpart C of 45 C.F.R. Part 164 with respect to electronic Protected Health Information, to prevent use or disclosure of Protected Health Information other than as provided for by this Agreement;
3. Report to Covered Entity any use or disclosure of Protected Health Information not provided for by this Agreement of which it becomes aware, including Breaches of Unsecured Protected Health Information as required at 45 C.F.R. § 164.410, and any Security Incident of which it becomes aware;
4. In accordance with 45 C.F.R. §§ 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 Business Associate agree to the same restrictions, conditions, and requirements that apply to Business Associate with respect to such information;
5. Make available Protected Health Information in a Designated Record Set to Covered Entity as necessary to satisfy Covered Entity’s obligations under 45 C.F.R. § 164.524;
6. Make any amendment(s) to Protected Health Information in a Designated Record Set as directed or agreed to by Covered Entity pursuant to 45 C.F.R. § 164.526, or take other measures as necessary to satisfy Covered Entity’s obligations under 45 C.F.R § 164.526;
7. Maintain and make available the information required to provide an accounting of disclosures to Covered Entity as necessary to satisfy Covered Entity’s obligations under 45 C.F.R. § 164.528;
8. To the extent Business Associate is to carry out one or more of Covered Entity’s obligation(s) under Subpart E of 45 C.F.R. Part 164, comply with the requirements of Subpart E that apply to Covered Entity in the performance of such obligation(s); and
9. Make its internal practices, books, and records available to the Secretary for purposes of determining compliance with the HIPAA Rules.

      III. Permitted Uses and Disclosures by Business Associate.

A.    Business Associate may only use or disclose Protected Health Information as required to satisfy its obligations to perform the Activities or as otherwise permitted herein.

B.    Business Associate is authorized to use Protected Health Information to de-identify the information in accordance with 45 C.F.R. § 164.514(a)-(c).

C.    Business associate may use or disclose Protected Health Information as Required By Law (as that term is defined in 45 C.F.R. § 164.103).

D.    Business Associate agrees to make uses and disclosures and requests for Protected Health Information, consistent with the Minimum Necessary requirement, as applicable.

E.    Business Associate may not use or disclose Protected Health Information in a manner that would violate Subpart E of 45 C.F.R. Part 164 if done by Covered Entity, except for the specific uses and disclosures set forth below in paragraphs F, G, H, and I of this Section III (“Permitted Uses and Disclosures”).

F.    Business Associate may use Protected Health Information to contact patients and offer such patients an authorization for the use and disclosure of Protected Health Information that complies with 45 C.F.R. § 164.508.  If a patient chooses to sign such an authorization, Business Associate may use and disclose Protected Health Information to the extent permitted by the authorization, including to market Business Associate’s products.

G.    Business Associate may use Protected Health Information for the proper management and administration of Business Associate or to carry out the legal responsibilities of Business Associate.

H.    Business Associate may disclose Protected Health Information for the proper management and administration of Business Associate or to carry out the legal responsibilities of Business Associate, provided the disclosures are Required By Law, or Business Associate obtains reasonable assurances from the person to whom the information is disclosed that the information will remain confidential and used or further disclosed only as Required By Law or for the purposes for which it was disclosed to the person, and the person notifies Business Associate of any instances of which it is aware in which the confidentiality of the information has been Breached.

I.     Business Associate may perform Data Aggregation activities relating to the Health Care Operations of Covered Entity.

      IV. 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 C.F.R. § 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 C.F.R. § 164.522, to the extent that such restriction may affect Business Associate’s use or disclosure of Protected Health Information.

      V. 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 C.F.R. Part 164 if done by Covered Entity, provided, however, that this restriction shall not apply for uses or disclosures of Protected Health Information for Data Aggregation activities performed by Business Associate or for the management and administration and legal responsibilities of Business Associate.

      VI. Term and Termination.

            A.Term.  The Term of this Agreement shall be effective as of the Effective Date, and shall terminate when Business Associate has completed performance of the Activities or when either party terminates for cause as authorized in paragraph B of this Section VI (“Term and Termination”), whichever is sooner.

            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 this Agreement and Business Associate has not cured the violation or ended the violation within the time reasonably specified by Covered Entity.  Covered Entity likewise authorizes termination of this Agreement by Business Associate, if Business Associate determines Covered Entity has violated a material term of this Agreement and Covered Entity has not cured the violation or ended the violation within the time reasonably specified by 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:

1. Retain only that Protected Health Information which is necessary for Business Associate to continue its proper management and administration or to carry out its legal responsibilities;
2. Return to Covered Entity or, if agreed to by Covered Entity, destroy the remaining Protected Health Information that Business Associate still maintains in any form;
3. Continue to use appropriate safeguards and comply with Subpart C of 45 C.F.R. Part 164 with respect to electronic Protected Health Information to prevent use 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;
4. Not use or disclose the Protected Health Information retained by Business Associate other than for the purposes for which such Protected Health Information was retained and subject to the same conditions set out at paragraphs F, G, H, and I of Section III (“Permitted Uses and Disclosures”), which applied prior to termination; and
5. Return to Covered Entity or, if agreed to by Covered Entity, destroy the Protected Health Information retained by Business Associate when it is no longer needed by Business Associate for its proper management and administration or to carry out its legal responsibilities.

            D. Survival.  The obligations of Business Associate under this Section shall survive the termination of this Agreement.

      VII. Miscellaneous.

            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.  TThe 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.

            D. Notices.  All notices required or permitted by this Agreement shall be in writing and shall be directed to the appropriate party at its address set forth above or such other address as a party may, from time to time, designate by written notice to the other party.

Batriatric Advantage Online^TM Webpage Agreement - Resale eStore

THIS BARIATRIC ADVANTAGE ONLINE™ WEBPAGE AGREEMENT – RESALE ESTORE (“Agreement”) is effective as of the date signed by Practitioner (the “Effective Date”) by and between Bariatric Advantage, an operating division of Metagenics LLC, a Delaware limited liability company with offices at 25 Enterprise, Suite 200, Aliso Viejo, CA 92656 (“Bariatric Advantage”), and Practitioner (“Practitioner”).

RECITALS

A.         Bariatric Advantage is an operating division of Metagenics LLC, a life sciences company that manufactures nutritional products, dietary supplements, dietary ingredients, and medical foods for sale in commerce based upon Bariatric Advantage’s own formulas or recipes or upon formulas or recipes obtained pursuant to license (or which exist in the public domain).

B.         Bariatric Advantage has developed software (the “Software”) for the establishment and operation of separate webpages for the sale of Bariatric Advantage products by healthcare practitioners, which webpages are identified specifically to an individual healthcare practitioner and serve the needs of such individual practitioner’s own patients

C.         Practitioner is interested in establishing a unique webpage (the “Webpage”) on Bariatric Advantage’s website, through which Practitioner will sell Bariatric Advantage products to Practitioner’s patients Bariatric Advantage dietary supplements and medical foods, for the purposes of (i) providing patient convenience, (ii) meeting specified nutritional protocols established by Practitioner, (iii) improving patient compliance with such recommended protocols, and (iv) tracking patients’ actual compliance with such protocols.

D.         Bariatric Advantage desires to use Practitioner’s name and logo on the Webpage, and Practitioner is willing to grant Bariatric Advantage the right to use Practitioner’s name and logo on the Webpage, pursuant to the terms and conditions of this Agreement.

NOW, THEREFORE, the parties hereto hereby agree as follows:

1.         DEFINITIONS.  The terms set forth below shall be defined as follows:

1.1.      “Confidential Information” of a party is information which the party claiming confidentiality designates as “Confidential,” including, without limitation, any computer code, Content (as described below), other content, documentation, marketing plans or other similar information.  “Confidential Information” of Bariatric Advantage includes the source code of the Software.

1.2.      “Software” shall mean all software and any software tools, both in object code and source code form, which Bariatric Advantage has already developed (or which Bariatric Advantage subsequently develops) or which Bariatric Advantage licenses from a third party, for establishing and maintaining Practitioner’s Webpage.

1.3.      “Webpage” shall mean the unique page established using Practitioner’s name and logo, on Bariatric Advantage’s own website, using the Software, and maintained and supported on the Bariatric Advantage server.

2.         PURPOSE; LICENSE; CONTENT; SERVER; DEVELOPMENT SERVICES.

2.1.      Purpose.  The purpose of Practitioner’s Webpage shall include, without limitation, the dissemination of information, the display of Bariatric Advantage products for order and purchase, the presentation of advertising, and other purposes.

2.2.      License.  Practitioner hereby grants to Bariatric Advantage a non-exclusive, non-assignable license to use Practitioner’s name and logo for all uses necessary or appropriate to the operation of Practitioner’s Webpage, in accordance with the terms and conditions of this Agreement.

2.3.      Content of the Webpage.  The Webpage will be based upon Bariatric Advantage content.  The Webpage will use the Software to implement product purchasing, data collection, and information tracking.

2.4.      Server for the Webpage.  The Software and the Webpage will reside upon a server provided by Bariatric Advantage.

2.5.      Development Services.  Bariatric Advantage will provide design, programming, development and other services relating to the Webpage.

3.         WEBPAGE SUPPORT SERVICES.

Bariatric Advantage shall provide the following ongoing Webpage support to Practitioner.

3.1.      Establishment of Webpage on Bariatric Advantage Server.  Bariatric Advantage will establish Practitioner’s Webpage as part of Bariatric Advantage’s own website, which is on a server provided by Bariatric Advantage and under Bariatric Advantage’s control, support, and maintenance.

3.2.      Availability.  Unless otherwise agreed between the parties, Bariatric Advantage shall use commercially reasonable efforts to make Practitioner’s Webpage publicly available to users twenty-four (24) hours per day, seven (7) days per week.

3.3.      Content.  Practitioner shall not supplement, modify or alter any content on Practitioner’s Webpage, unless any such change has been consented to by Bariatric Advantage.  Bariatric Advantage will provide password protected access for Practitioner.

3.4.      Backup.  Bariatric Advantage shall maintain a complete and current copy of Bariatric Advantage’s website on a separate server.  In the event that service is interrupted to Bariatric Advantage’s website, the separate server shall be activated so that public access to Practitioner’s Webpage may continue uninterrupted or as close as possible under the circumstances.

3.5.      Privacy Policy; Patient Data.  The parties agree that a privacy policy shall exist that conforms with existing privacy laws and shall maintain that policy with respect to Practitioner’s Webpage.  Such privacy policy shall be subject to any additional privacy limitations placed by MasterCard, Visa or other Internet payment processing companies through which sales on Practitioner’s Webpage may be charged.  Patient data will be maintained on a secure server provided by Bariatric Advantage.  Bariatric Advantage will use commercially reasonable efforts to provide Practitioner access to the patient data twenty four (24) hours per day, seven (7) days per week, and Bariatric Advantage will provide Practitioner with passcodes and technical assistance as may be necessary for permitting such access.  As a condition precedent to entering this Agreement, the parties agree to execute the HIPAA Business Associate Agreement in the form set forth as Exhibit A hereto.

4.         INVENTORY SERVICES.

4.1.      Shopping Cart Features.  Bariatric Advantage will use its online shopping cart application which will be customized for Practitioner’s webpage to manage the shopping experience of visitors to Practitioner’s Webpage.

4.2.      Product Selection for the Webpage.  Practitioner is responsible for determining the applicable nutritional protocol, and for selecting the products, to support the needs of the patients who will be directed to Practitioner’s Webpage to purchase products.  Bariatric Advantage maintains an on-line catalog of products from which Practitioner may select.

4.3.      Ordering from the Webpage.  Completed orders will be communicated from Practitioner’s Webpage directly to Bariatric Advantage’s distribution center.  Products will be shipped from the distribution center to the patient using shipping documents and shipping labels that include Practitioner’s name and Bariatric Advantage’s return address.

4.4.      Inventory Levels.  Throughout the Term of this Agreement, Bariatric Advantage shall use commercially reasonable efforts to maintain appropriate levels of inventory at the Bariatric Advantage distribution center to meet patients’ demand for the products listed on Practitioner’s Webpage.  Bariatric Advantage will assist in establishing inventory levels to reflect the actual sales performance of each product SKU.

4.5.      Shipping Charges; Undeliverable Shipments; Satisfaction Guarantee; Product Recalls.

4.5.1.   Shipping charges (from the Bariatric Advantage distribution center) will be paid by the patient.  Bariatric Advantage will determine and charge the appropriate shipping/handling charge per outgoing order

4.5.2.   Bariatric Advantage will be responsible for undeliverable or damaged shipments from Bariatric Advantage to patients, and Bariatric Advantage will handle such damaged shipments according to its then-current policy regarding such shipments.

4.5.3.   Practitioner will specify the satisfaction guarantee policy to which product returns will be subject or, in the absence of such specification, the then-current Bariatric Advantage satisfaction guarantee policy.

4.5.4.  Bariatric Advantage will be responsible for product recalls.

4.6.      Product Pricing. Bariatric Advantage will recommend to Practitioner a suggested retail price (SRP) for each product SKU offered on Practitioner’s Webpage, but it shall be Practitioner’s responsibility to set the actual retail price to patients.

5.         PRICING; REPORTING; PAYMENT; CREDIT AND COLLECTIONS.

5.1.      Products.  The price from Bariatric Advantage to Practitioner for products purchased by patients from Practitioner’s Webpage shall be Bariatric Advantage’s then-current practitioner price for such products.

5.2.      Reporting.  Practitioner will have access to sales reports.  Within twenty (20) calendar days after the close of each calendar quarter, Bariatric Advantage will provide Practitioner with an accounting of sales made from Practitioner’s Webpage.

5.3.      Payment.  Practitioner will open Practitioner’s own individual account with the WePay processing service (“WePay”).  Patients will purchase products from Practitioner’s Webpage through Practitioner’s WePay account.  Patients will make payments for products by an approved method of payment, which shall include providing the Patient’s credit card information to WePay.  WePay shall deduct its transaction fees and, on behalf of Practitioner, WePay shall remit to Bariatric Advantage the applicable price for the products purchased by patients on Practitioner’s Webpage.

            5.3.1.   Bank fees, credit card transaction fees, and WePay transaction fees are included in the price paid by the patient.

5.4.      Credit and Collections.  Practitioner shall be responsible for credits and collections relating to products purchased through Practitioner’s WePay account.

5.5       Sales Taxes.  In all jurisdictions that permit or require a marketplace facilitator, marketplace provider, or other similar person to collect and remit sales, use, transaction privilege, gross receipts, excise or similar transaction taxes (collectively, “Sales Taxes”), Bariatric Advantage will collect and remit Sales Taxes to the appropriate taxing authority.  Practitioner agrees to provide Bariatric Advantage with all information to support such treatment, including its Sales Tax registration numbers.

In all other jurisdictions or where Metagenics is not acting as a marketplace facilitator or other similar person, Practitioner shall be responsible to collect and remit Sales Taxes to the appropriate taxing authority.  In such non-marketplace facilitator jurisdictions or where Metagenics is not acting as a marketplace facilitator or other similar person, Practitioner agrees that Practitioner will indemnify Bariatric Advantage for all Sales Tax, interest, and penalties asserted or assessed against Bariatric Advantage by a taxing authority with respect to Practitioner’s sales, as well as for reasonable costs to defend against such assertions or assessments.

In all jurisdictions, Practitioner agrees that Practitioner will indemnify and hold harmless Bariatric Advantage from all losses related to assessments. false claims, qui tam, and class action lawsuits with respect to Practitioner’s sales that may arise in such jurisdictions and that relate to the correct taxability of an item or the correct tax rate.

6.         PATIENT SUPPORT.

6.1       Practitioner Responsibility.  Practitioner shall be responsible for recommending particular products for use by the patient, including how much, how often, and for how long such products should be used.  Practitioner will be responsible for tracking protocol compliance on the part of patients.  Practitioner agrees that Practitioner shall only use the Webpage and the Software to communicate with patients for purposes that are permitted under the Health Insurance Portability and Accountability Act of 1996 and its implementing regulations (collectively, “HIPAA”) and other applicable law, such as for treatment purposes.

6.2       Bariatric Advantage Responsibility.  Bariatric Advantage shall be responsible for providing customer service for patients ordering products from Practitioner’s Webpage, as said service relates to informing patients of product specifications, shipment status, return authorizations, product promotions, and similar matters.  At the direction of Practitioner, Bariatric Advantage will use patient information to communicate with patients about refill reminders or about the availability of other products that Practitioner believes may aid in the treatment of the patient.

6.3       Communications.  Throughout each business day, on a necessary and appropriate basis (and in real time, if required), each party will keep the other informed of the support provided to patients.

7.         TERM AND TERMINATION.

7.1.      Term.  This Agreement shall have an initial term of one (1) year from the Effective Date (the “Initial Term”); thereafter, this Agreement may be renewed for additional terms of one (1) year (each, a “Renewal Term” and, together with the Initial Term, the “Term”) and shall be considered automatically so renewed if neither party has given the other written notice of intention to terminate this Agreement at least sixty (60) days prior to the expiration of the Initial Term or the then-current Renewal Term.

7.2.      Termination for Cause.  Either party may terminate this Agreement upon a material breach of this Agreement by the other party (or, in the case of a breach by Practitioner, the breach of an applicable Bariatric Advantage policy), if such breach remains uncured for thirty (30) days following written notice to the breaching party.

7.3.      Termination without Cause.  Either party may terminate this Agreement, at any time, without cause, by giving at least ninety (90) days’ prior written notice to the other party.

7.4.      Effect of Termination.

7.4.1       Removal of Name and logo.  Upon the termination of this Agreement for any reason, Bariatric Advantage shall promptly remove Practitioner’s name and logo from the Webpage and shall use commercially reasonable efforts to remove any references to Practitioner’s name and logo from Bariatric Advantage’s website.

7.4.2       Termination of Licenses.  Upon termination of this Agreement for any reason, any license granted hereunder shall terminate.

7.4.3      Survival.  Sections 10, 11, 12, and 13 shall survive any termination or expiration of this Agreement.

8.         BARIATRIC ADVANTAGE WARRANTIES.

8.1.      Work Product Warranties.  Bariatric Advantage represents and warrants to Practitioner that the Software, the Webpage, and Bariatric Advantage-made changes to the Webpage do not and will not (a) infringe on the intellectual property rights of any third party or (b) violate any law or regulation.

8.2.      Support and Maintenance Warranties.  Bariatric Advantage further represents and warrants to Practitioner that, at all times during which Bariatric Advantage provides web-hosting services pursuant to Section 3 of this Agreement, it will use commercially reasonable efforts to ensure the following:

8.2.1.   Availability of the Webpage.  The Webpage will be publicly available to users a minimum of ninety-five percent (95%) of the time, seven (7) days per week, twenty-four (24) hours per day.  Customer Service will be available during business hours, Monday through Friday, 8:00 am – 5:00 pm (Pacific Time).

8.2.2.   Bandwidth of Bariatric Advantage’s Website.  The Bariatric Advantage website’s connection to the Internet shall be sufficient to provide accessibility commensurate with that expected by the consuming public and of a grade equal to that provided by similar sites.  The goal shall be to prevent any user delays from accessing Practitioner’s Webpage, subject to Internet-related delays that are not within Bariatric Advantage’s control.

8.2.3.   Security of Bariatric Advantage’s Website.  Bariatric Advantage shall prevent unauthorized access to any shadow site of its website, other restricted areas of its website, and any databases or other sensitive material generated from or used in conjunction with its website, provided, however, that Practitioner understands and acknowledges that Bariatric Advantage shall not be held responsible for the effects of malicious hacking or other concerted criminal and illegal activities on the part of third parties in relation hereto.

9.         PRACTITIONER WARRANTIES.

Practitioner represents and warrants that Practitioner will not use any advertising material with respect to the products available on Practitioner’s Webpage that:  (a) infringes any intellectual property right of any third party, (b) is false or provides a misleading statement of material fact or (c) violates any law or regulation.

10.       OWNERSHIP.

10.1.    Ownership of the Website.  Practitioner acknowledges and agrees that Bariatric Advantage owns the Software and all of the computer code on, and relating to, Bariatric Advantage’s website.

10.2.    Ownership of Content.  All content contributed by Bariatric Advantage shall be owned by Bariatric Advantage.  Practitioner acknowledges and agrees that any content used on Practitioner’s Webpage shall at all times remain the property of Bariatric Advantage (or its licensor).  Practitioner shall have no rights in such content, other than the limited right to use such content for the purposes expressly set forth in this Agreement.

11.       INDEMNIFICATION.

11.1.    Bariatric Advantage Indemnification.  Bariatric Advantage shall defend and hold harmless Practitioner against any third party claim, action, suit or proceeding (each, a “Claim”) (a) arising from any breach of this Agreement by Bariatric Advantage, (b) arising from the negligent acts or omissions or the willful misconduct of Bariatric Advantage or (c) alleging product liability or other Claim relating to the integrity of a Bariatric Advantage product.  Bariatric Advantage shall indemnify Practitioner for losses, damages, liabilities and reasonable expenses (including, without limitation, reasonable attorneys’ fees) and costs incurred by Practitioner in defending against any such Claim.

11.2.    Practitioner Indemnification.  Practitioner shall defend and hold harmless Bariatric Advantage against any Claim (a) arising from any breach of this Agreement by Practitioner or (b) arising from the negligent acts or omissions or the willful misconduct of Practitioner.  Practitioner shall indemnify Bariatric Advantage for losses, damages, liabilities and reasonable expenses (including, without limitation, reasonable attorneys’ fees) and costs incurred by Bariatric Advantage in defending against any such Claim.

11.3.    Mechanics of Indemnification.  The indemnified party’s obligations are conditioned upon the indemnified party:  (a) giving the indemnifying party prompt written notice of any Claim for which the indemnified party is seeking indemnity; (b) granting control of the defense and settlement of such Claim to the indemnifying party; and (c) reasonably cooperating with the indemnifying party at the indemnifying party’s expense.

12.       CONFIDENTIAL INFORMATION.

Each party shall hold the Confidential Information of the other party in confidence and shall not (i) disclose the other party’s Confidential Information to third parties or (ii) use the other party’s Confidential Information for any purpose other than the purposes of this Agreement.  Such restrictions shall not apply to information which (a) is already known by the recipient; (b) becomes, through no act or fault of the recipient, publicly known; (c) is received by the recipient from a third party without a restriction on disclosure or use; or (d) is independently developed by the recipient without reference to the other party’s Confidential Information.

13.       LIMITATION ON LIABILITY.

NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY OR TO ANY OTHER PERSON OR ENTITY FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER FOR BREACH OF CONTRACT, TORT, NEGLIGENCE, STRICT PRODUCT LIABILITY OR OTHERWISE (INCLUDING, WITHOUT LIMITATION, DAMAGES BASED ON LOSS OF PROFITS OR BUSINESS OPPORTUNITY), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

14.       EXCLUSIVITY; NON-COMPETITION.

Practitioner acknowledges that Bariatric Advantage is in the business of developing its own website and of providing associated services on a commercial basis and that, accordingly, Bariatric Advantage has developed, and will continue to develop, webpages for other parties whom Practitioner may consider competitive to Practitioner’s business.  Practitioner agrees that Bariatric Advantage shall continue to be free to develop webpages for other clients.  Bariatric Advantage shall not share with its other clients any identifiable data pertaining to Practitioner’s Webpage.

15.       COMPLIANCE WITH LAWS.

Each party shall perform its respective obligations under this Agreement in compliance with the applicable laws of the jurisdictions in which this Agreement is intended to be performed.

16.       GENERAL PROVISIONS.

16.1.    Governing Law; Venue.  This Agreement shall be governed by, and construed in accordance with, the laws of the State of California, without regard to conflict of law principles.  In the event that any dispute arises under this Agreement, the parties agree that proceedings will take place exclusively in the County of Orange, State of California.

16.2.    Severability; No Waiver.  If any provision of this Agreement is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way.  The parties agree to replace any invalid provision with a valid provision that most closely approximates the intent and economic effect of the invalid provision.  A waiver by either party of a breach of any provision of this Agreement will not operate or be interpreted as a waiver of any other or subsequent breach.

16.3.    Independent Contractors.  The parties to this Agreement are independent contractors and no agency, partnership, joint venture or employee-employer relationship is intended or created by this Agreement.  Except as contemplated by the obligations of each party under this Agreement, neither party shall have the power to obligate or bind the other party.  Personnel supplied by Bariatric Advantage shall work exclusively for Bariatric Advantage and shall not, for any purpose, be considered employees or agents of Practitioner.

16.4.    Entire Agreement; Amendment.  This Agreement, including any exhibits attached hereto and the provisions referenced in such Exhibits, sets forth the entire understanding and agreement of the parties and supersedes any and all oral or written agreements or understandings between the parties as to the subject matter of this Agreement.  Any amendments or changes to this Agreement must be in writing and signed by both parties.

By clicking “Accept”, I acknowledge that I have read and I accept these Terms and Conditions, and I acknowledge receipt of the Bariatric Advantage Authorized Reseller Policy,  https://www.bariatricadvantage.com/policies#authorized_reseller_policy.

EXHIBIT A

HIPAA Business Associate Agreement

THIS HIPAA BUSINESS ASSOCIATE AGREEMENT (this “Business Associate Agreement”) between Practitioner (“Practitioner” or “Covered Entity”) and Bariatric Advantage, an operating division of Metagenics LLC, a Delaware limited liability company  with offices at 25 Enterprise, Suite 200, Aliso Viejo, CA 92656 (“Bariatric Advantage” or “Business Associate”) is effective as of the same date as the effective date of that certain BARIATRIC ADVANTAGE ONLINE™ WEBPAGE AGREEMENT – RESALE ESTORE between Practitioner and Bariatric Advantage (the “Effective Date”).

WHEREAS, Practitioner is disclosing and/or making available certain data, which may include Protected Health Information as that term is defined in 45 C.F.R. § 160.103, to Bariatric Advantage;

WHEREAS, Practitioner has requested that Bariatric Advantage enter into a business associate agreement;

WHEREAS, Bariatric Advantage is willing, given its commitment to privacy and security protections, to sign a business associate agreement with Practitioner;

WHEREAS, Practitioner is or may be subject to the requirements of the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) and privacy and security regulations promulgated thereunder (45 C.F.R. Parts 160 and 164) (the “Privacy Regulations” and the “Security Regulations”);

WHEREAS, Practitioner and Bariatric Advantage seek to comply with those provisions under Subtitle D (Privacy) of the Health Information Technology for Economic and Clinical Health Act of 2009 (“HITECH”) that apply to covered entities and business associates, respectively; and

WHEREAS, Bariatric Advantage shall use Practitioner’s Protected Health Information as mutually agreed by the Parties (“the Activities”);

NOW, THEREFORE, the parties agree as follows:

      I. Definitions.

            A. Catch-all definitions.  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.

            B. Specific definitions.

1. “Business Associate” shall generally have the same meaning as the term “business associate” at 45 C.F.R. § 160.103 and, in reference to the party to this Agreement, shall mean Bariatric Advantage, an operating division of Metagenics LLC.
2. “Covered Entity” shall generally have the same meaning as the term “covered entity” at 45 C.F.R. § 160.103 and, in reference to the party to this Agreement, shall mean Practitioner.
3. “HIPAA Rules” shall mean the Privacy, Security, Breach Notification, and Enforcement Rules at 45 C.F.R. Part 160 and Part 164.

      II. Obligations and Activities of Business Associate.

Business Associate agrees to:

1. Not use or disclose Protected Health Information other than as permitted or required by this Agreement or as Required By Law;
2. Use appropriate safeguards, and comply with Subpart C of 45 C.F.R. Part 164 with respect to electronic Protected Health Information, to prevent use or disclosure of Protected Health Information other than as provided for by this Agreement;
3. Report to Covered Entity any use or disclosure of Protected Health Information not provided for by this Agreement of which it becomes aware, including Breaches of Unsecured Protected Health Information as required at 45 C.F.R. § 164.410, and any Security Incident of which it becomes aware;
4. In accordance with 45 C.F.R. §§ 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 Business Associate agree to the same restrictions, conditions, and requirements that apply to Business Associate with respect to such information;
5. Make available Protected Health Information in a Designated Record Set to Covered Entity as necessary to satisfy Covered Entity’s obligations under 45 C.F.R. § 164.524;
6. Make any amendment(s) to Protected Health Information in a Designated Record Set as directed or agreed to by Covered Entity pursuant to 45 C.F.R. § 164.526, or take other measures as necessary to satisfy Covered Entity’s obligations under 45 C.F.R § 164.526;
7. Maintain and make available the information required to provide an accounting of disclosures to Covered Entity as necessary to satisfy Covered Entity’s obligations under 45 C.F.R. § 164.528;
8. To the extent Business Associate is to carry out one or more of Covered Entity’s obligation(s) under Subpart E of 45 C.F.R. Part 164, comply with the requirements of Subpart E that apply to Covered Entity in the performance of such obligation(s); and
9. Make its internal practices, books, and records available to the Secretary for purposes of determining compliance with the HIPAA Rules

      III. Permitted Uses and Disclosures by Business Associate.

A.    Business Associate may only use or disclose Protected Health Information as required to satisfy its obligations to perform the Activities or as otherwise permitted herein.

B.    Business Associate is authorized to use Protected Health Information to de-identify the information in accordance with 45 C.F.R. § 164.514(a)-(c).

C.    Business associate may use or disclose Protected Health Information as Required By Law (as that term is defined in 45 C.F.R. § 164.103).

D.    Business Associate agrees to make uses and disclosures and requests for Protected Health Information, consistent with the Minimum Necessary requirement, as applicable.

E.    Business Associate may not use or disclose Protected Health Information in a manner that would violate Subpart E of 45 C.F.R. Part 164 if done by Covered Entity, except for the specific uses and disclosures set forth below in paragraphs F, G, H, and I of this Section III (“Permitted Uses and Disclosures”).

F.    Business Associate may use Protected Health Information to contact patients and offer such patients an authorization for the use and disclosure of Protected Health Information that complies with 45 C.F.R. § 164.508.  If a patient chooses to sign such an authorization, Business Associate may use and disclose Protected Health Information to the extent permitted by the authorization, including to market Business Associate’s products.

G.    Business Associate may use Protected Health Information for the proper management and administration of Business Associate or to carry out the legal responsibilities of Business Associate.

H.    Business Associate may disclose Protected Health Information for the proper management and administration of Business Associate or to carry out the legal responsibilities of Business Associate, provided the disclosures are Required By Law, or Business Associate obtains reasonable assurances from the person to whom the information is disclosed that the information will remain confidential and used or further disclosed only as Required By Law or for the purposes for which it was disclosed to the person, and the person notifies Business Associate of any instances of which it is aware in which the confidentiality of the information has been Breached.

I.     Business Associate may perform Data Aggregation activities relating to the Health Care Operations of Covered Entity.

      IV. 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 C.F.R. § 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 C.F.R. § 164.522, to the extent that such restriction may affect Business Associate’s use or disclosure of Protected Health Information.

      V. 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 C.F.R. Part 164 if done by Covered Entity, provided, however, that this restriction shall not apply for uses or disclosures of Protected Health Information for Data Aggregation activities performed by Business Associate or for the management and administration and legal responsibilities of Business Associate.

      VI. Term and Termination.

            A. Term.  The Term of this Agreement shall be effective as of the Effective Date, and shall terminate when Business Associate has completed performance of the Activities or when either party terminates for cause as authorized in paragraph B of this Section VI (“Term and Termination”), whichever is sooner.

            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 this Agreement and Business Associate has not cured the violation or ended the violation within the time reasonably specified by Covered Entity.  Covered Entity likewise authorizes termination of this Agreement by Business Associate, if Business Associate determines Covered Entity has violated a material term of this Agreement and Covered Entity has not cured the violation or ended the violation within the time reasonably specified by 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:

1. Retain only that Protected Health Information which is necessary for Business Associate to continue its proper management and administration or to carry out its legal responsibilities;
2. Return to Covered Entity or, if agreed to by Covered Entity, destroy the remaining Protected Health Information that Business Associate still maintains in any form.
3. Continue to use appropriate safeguards and comply with Subpart C of 45 C.F.R. Part 164 with respect to electronic Protected Health Information to prevent use 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;
4. Not use or disclose the Protected Health Information retained by Business Associate other than for the purposes for which such Protected Health Information was retained and subject to the same conditions set out at paragraphs F, G, H, and I of Section III (“Permitted Uses and Disclosures”), which applied prior to termination; and
5. Return to Covered Entity or, if agreed to by Covered Entity, destroy the Protected Health Information retained by Business Associate when it is no longer needed by Business Associate for its proper management and administration or to carry out its legal responsibilities.

D. Survival.  The obligations of Business Associate under this Section shall survive the termination of this Agreement.

      VII. Miscellaneous.

            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.

            D. Notices.  All notices required or permitted by this Agreement shall be in writing and shall be directed to the appropriate party at its address set forth above or such other address as a party may, from time to time, designate by written notice to the other party.