Subscription Terms

Last revised May 21, 2025

Acceptance of Terms

Please read these Subscription Terms carefully before you complete the EX Program subscription registration. These Subscription Terms constitute a binding agreement between you, on behalf of your employer and Truth Initiative (“Provider,” “we” or “us”), which owns and operates the EX Program. By completing the subscription registration on this website, you represent and warrant that:

  1. you are authorized to complete the EX Program subscription registration on behalf of your employer (“Customer”) and to bind Customer to these Subscription Terms;
  2. Customer agrees to be bound by these Subscription Terms, as well as any and all applicable federal, state and local laws and regulations;
  3. the EX Program is not being offered to Customer’s Authorized Users as a part of, nor is it being administered by and/or through, Customer’s self-insured health plan;
  4. the EX Program is being offered to Customer’s Authorized Users as a part of and/or is being administered as an employee benefit outside of Customer’s self-insured health plan; and
  5. Customer is not a “Covered Entity” as that term is defined under the Health Portability and Accountability Act of 1996 (“HIPAA”).
  6. Customer agrees to (a) comply with the Terms of Use set forth at https://www.theexprogram.com/terms-of-use/ (the “Site”) and at exprogram.com/terms-of-use (the “EX Program Site”) (collectively, the “Sites”), as such respective Terms of Use may be amended or modified by Provider from time to time in its sole discretion; and (b) comply at its sole expense with all applicable laws and regulations relating to its performance under these Subscription Terms and the respective Terms of Use identified above

IF CUSTOMER DOES NOT AGREE WITH THESE SUBSCRIPTION TERMS, DO NOT COMPLETE THE EX PROGRAM SUBSCRIPTION REGISTRATION.

Provider may, at any time, amend these Subscription Terms by posting the amended Subscription Terms to the EX Program Site. Any use of the EX Program Site or the “Services” by any of Customer’s “Authorized Users” (each defined below) after the amendment of these Subscription Terms is deemed acceptance of the amended Subscription Terms by Customer. If Customer does not agree to any amended Subscription Terms, it has the right to discontinue use of the EX Program Site and the Services, pursuant to the cancellation provisions set forth in the then-current Subscription Terms.

All rights not expressly granted in these Subscription Terms are hereby reserved by Provider. No rights are granted by implication.

If you have any questions or concerns about these Subscription Terms or any issues raised herein or on the Site, the Site, please contact us at info@theexprogram.com.

The Site and the Services

The Sites are owned and operated by Provider. Through the EX Program Site, adult users who are authorized by Customer as eligible to utilize Customer’s EX Program subscription (collectively, “Authorized Users”) can access certain services in connection with their tobacco cessation efforts. Those services include without limitation: a collection of information, data, text, graphics, images, video and audio files and other types of works; search tools; blogs; access to the EX Community, a peer-supported social network of current and former tobacco users; mobile-optimized, personal one-on-one chat coaching with certified tobacco treatment specialists; text message and email communication, up to an eight-week supply of nicotine replacement therapy products such as gum, lozenges or patches, as applicable; and any other services that Provider may offer to Customer and/or Authorized Users through the EX Program from time to time in its sole discretion (collectively, the “Services”). Provider reserves the right, in its sole discretion, to change, modify, suspend or discontinue the whole or any portion of the Services and/or the Sites at any time. Provider may also, in its sole discretion, impose limitations on certain features or restrict Authorized Users’ access to parts of or the entire Services, the Site, and/or the EX Program Site, without notice or liability.

Excluded Companies

The EX Program does not serve any company (“Excluded Company” or “Excluded Companies”) that manufactures tobacco and/or tobacco-derived products intended for human consumption (including without limitation e-cigarettes) or any such company’s parents, subsidiaries, affiliates or controlled entities (which includes any entity in which the company has at least a 50% ownership interest or has at least 50% representation on the governing body). In the event that an Excluded Company registers for EX Program services, Truth Initiative reserves the right to terminate the relationship and refund the pro rata fees paid.

Licenses and Use

Provider hereby grants to Customer and to Customer’s Authorized Users, effective upon Customer’s completed and accepted EX Program subscription registration, a limited, non-exclusive, revocable, non-assignable, non-transferable right and license to access via the internet and/or mobile device and utilize the EX Program Site and the Services, subject to the Terms of Use set forth at https://www.exprogram.com/terms-of-use/. The rights and licenses granted herein are subject to the following additional requirements: (i) the EX Program, the EX Program Site and the Services may only be accessed by Customer and its Authorized Users for their own benefit; and (ii) neither Customer nor its Authorized Users shall copy, reproduce, market, sell, distribute, sublicense, manufacture, adapt, create derivative works of, translate, localize, port, decompile, reverse engineer or otherwise modify or commercially exploit the Services, the “Provider Content” (defined below), the EX Program Site or any software associated with either the Site or the EX Program Site (individually and collectively, the “Software”). For purposes of these Subscription Terms, the term “Provider Content” means any audio, visual, audiovisual, textual and/or interactive works or materials, in any media, that is created by or on behalf of Provider in connection with the EX Program Site and/or the Services.

Customer is entitled to one dashboard license, as more fully described in the attached Statement of Services.

Customer’s Authorized Users shall be bound by and responsible for all communications and online activity transmitted or conducted in connection with Customer’s EX Program subscription. Provider shall have no responsibility or liability for any loss, damage, cost, expense or other liabilities arising out of or in connection with the wrongful or fraudulent use of Customer’s EX Program subscription. Customer shall promptly notify Provider at clientsuccess@truthinitiative.org if Customer becomes aware of any actual or suspected unauthorized use(s) of Customer’s EX Program subscription or any loss, theft or unauthorized disclosure of Customer’s account password.

Where fraudulent or wrongful use of Customer’s EX Program subscription is detected or suspected, Provider reserves the right, in its sole discretion, without liability and without prejudice to any other rights and remedies at law or in equity, to immediately prohibit such user(s) from participating in the EX Program, and/or to suspend or terminate Customer’s EX Program subscription.

In the event that Customer is provided with promotional materials in connection with its EX Program subscription, Provider hereby grants to Customer a limited, non-exclusive, revocable, non-assignable, non-transferable right and license to use such Provider trademarks, names and logos (collectively the “Provider Marks”) to the extent such Provider Marks are incorporated in such promotional materials. The licenses granted herein shall expire upon the earlier of the expiration or cancellation of Customer’s EX Program subscription or the effective date of any termination thereof.

Proprietary Rights

Provider owns all materials, data, forms, templates, Software (including all enhancements, new versions, updates, upgrades and “Modifications” (defined below), Provider Content and all other original work that Provider has developed and fixed in a tangible form in connection with the Site, the Services and/or the EX Program Site (collectively, “Work Product”). Provider is also the holder of all attendant rights in and to or otherwise associated with the Work Product. For purposes of these Subscription Terms, the term “Modifications” means any and all enhancements, new versions, updates, derivative works, or workarounds or routines intended to correct the adverse effect of an “Error” (defined below). For purposes of these Subscription Terms, the term “Error” means a failure of the Software to perform as described herein, where such failure has a material, adverse impact on the essential functionality of the EX Program Site and/or the Services.

Any Modifications to the Software or Provider Content resulting from the suggestions of Customer or its Authorized Users shall be owned exclusively by Provider and may be freely used by Provider without limitation and without payment or other compensation to Customer or its Authorized Users.

Support

For the duration of Customer’s subscription to the EX Program, Provider will: (i) provide telephone support as an initial implementation call and e-mail assistance thereafter in resolving problems with the Software; (ii) use commercially reasonable efforts to promptly provide workarounds or routines to correct the adverse effect(s) of verifiable Errors (items (i) and (ii), collectively, the “Support”); and (iii) supply email and telephone contacts for Customer to obtain such Support.

Data Security and User Personally Identifiable Information (PII)

Provider will use commercially reasonable efforts to maintain administrative, technical and physical safeguards to (i) protect the confidentiality, security and integrity of the EX Program; and (ii) protect against accidental, unauthorized or unlawful access, use, or disclosure of information supplied by Customer or an Authorized User that identifies or can be reasonably used to identify an individual person, including, but not limited to, any e-mail address or phone number (“User PII). Provider will not use or grant access to any User PII except in the course of performance of the Services and Support in connection with the EX Program, including disclosure to Provider’s vendors and/or subcontractors, if any, who have a need to know in order to assist Provider in delivering Services and Support in connection with the EX Program.

Consents

Customer shall obtain all necessary consents from its Authorized Users to receive promotional emails and other communications regarding initiating and/or maintaining EX Program engagement.

Confidentiality

Provider and Customer each may be exposed to or provided with “Confidential Information” (defined below) of the other. Each will protect the other’s Confidential Information from unauthorized disclosure and use, exercising the same degree of care that the disclosing party uses to protect its own Confidential Information, but in no event less than a reasonable degree of care. Except as required by law or compelled by legal process, neither Provider nor Customer will use the other’s Confidential Information for purposes other than those necessary to directly further the purposes of Customer’s EX Program subscription and as may be required to report to its and its affiliates’ Board of Directors and/or legal and financial advisors. Except as otherwise expressly set forth in these Subscription Terms, neither Provider nor Customer may disclose to third parties the other’s Confidential Information without prior written consent of the disclosing party. For purposes of these Subscription Terms, “Confidential Information” means confidential or proprietary information that is disclosed by or on behalf of Provider or Customer (each, in such capacity, a disclosing party) to the other (in such capacity, a recipient) or is otherwise received by a recipient. Confidential Information includes but is not limited to: trade secrets, proprietary information, technical processes and formulas, the Software, product designs, any sales, cost, and other unpublished financial information, product and business plans, strategies, projections and marketing data. Confidential Information does not include information that is (i) generally known to the public through no act or omission of recipient; (ii) developed by the recipient without use of or reference to the disclosing party’s Confidential Information; and (iii) lawfully obtained by recipient from any third party not owing any confidentiality obligation to the disclosing party. Confidential Information also does not include data that does not contain any PII and is maintained in a manner such that it cannot be manipulated to disclose any PII (“De-identified Data”).

Fees, Taxes, Payments and Cancellation

Upon Customer’s completion of the EX Program subscription registration, Customer shall be obligated to pay the fees identified to Customer in such registration process, which shall include a $6,000 fee to cover the first 15 Authorized User licenses and a fee of $300 per additional engaged user thereafter. Customer will also pay all applicable sales, use and services taxes, fees, assessments or charges imposed by any tax authority on the Services or payments in connection with Customer’s EX Program subscription. In the event Customer or the transactions contemplated under Customer’s EX Program subscription are exempt from such taxes, fees, assessments or charges, Customer shall furnish Provider with sufficient evidence of such tax-exempt status.

Customer must provide a current, valid, accepted method of payment, as such may be updated from time to time (a “Payment Method”) to subscribe to the EX Program. By subscribing to the EX Program, Customer authorizes Provider to bill the subscription fees and taxes (as applicable) to Customer’s Payment Method in accordance with these Subscription Terms. Customer may edit its Payment Method information by logging into Customer’s EX Program Account and using the “Edit Payment Method” feature. If a payment is not successfully settled, due to expiration of Payment Method, insufficient funds or otherwise, and Customer does not edit its Payment Method or cancel its EX Program subscription, Customer shall remain responsible for any and all uncollected amounts, and Customer authorizes Provider to continue billing the Payment Method, as it may be updated. This may result in a change to Customer’s billing dates.

By subscribing to the EX Program, Customer authorizes Provider to transmit or obtain information about Customer from third parties from time to time which may include but shall not be limited to (i) verification checks involving Customer’s credit card account or credit reports in order to authenticate Customer’s credit card account; (ii) obtain an initial credit card authorization; and (iii) protect Customer and Provider from fraud.

Billing – Upon registration, Customer’s Payment Method will be charged at that time the full subscription fees and taxes (as applicable) at the then-prevailing rate for the entire subscription period selected by Customer. Customer agrees that its EX Program subscription will remain in effect until the subscription is cancelled or terminated pursuant to these Subscription Terms. Customer may cancel its EX Program subscription at any time prior to the expiration of its initial subscription term (or any applicable renewal term) by logging into Customer’s account online and using the “Cancel” feature. However, Customer’s payments are non-refundable, and no refunds or credits will be given for partially utilized periods. If not cancelled or terminated, Customer’s EX Program subscription will be automatically renewed on each Renewal Date at the then-prevailing rate and for the same period as Customer’s initial subscription term selection.

Audit

Provider shall have the right, at its sole expense, upon ten (10) day’s advance written notice to Customer, to audit Customer’s books, documents, papers, files, and records (including without limitation electronic records) for the prior twelve (12) month period, that, in Provider’s reasonable opinion, have any bearing on the parties’ rights and obligations hereunder (collectively, “Records”) including, without limitation, for the purposes of determining or confirming: (i) the actual number of Customer’s Authorized Users; and (ii) Customer’s compliance with these Subscription Terms. Provider may not conduct such audits more frequently than once per twelve (12) month period and shall use an Auditor of Provider’s choosing, in its sole discretion; provided that such Auditor generally adheres to and utilizes professional standards of its industry and agrees in writing to continue to do so in any such audit. It is understood that no such audit shall take longer than five (5) days.

Termination

Provider may restrict, suspend or terminate Customer’s EX Program subscription if Customer: (i) materially breaches these Subscription Terms; or (ii) makes an assignment for the benefit of creditors, or if a receiver, trustee in bankruptcy or similar officer is appointed to take charge of any or all of Customer’s property, or if Customer files a voluntary petition under federal bankruptcy or similar laws or similar state statutes or such a petition is filed against Customer and is not dismissed within 60 days.

In addition, either Provider or Customer may terminate Customer’s EX Program subscription for any or no reason on not less than sixty (60) days written notice to the other. Upon termination of Customer’s EX Program subscription all rights and obligations of Customer and Provider under these Subscription Terms and all licenses and Services shall cease, except as follows: (a) Customer’s liability for any fees due to Provider shall not be extinguished and shall be immediately due and payable; (b) The provisions in these Subscription Terms pertaining to Proprietary Rights, Data Security and User PII, Confidentiality, Fees, Taxes, Payments and Cancellation, Intellectual Property, Data Usage, Indemnification, Disclaimers and Limitations, Dispute Resolution, Injunctive Relief and the General Provisions shall survive any expiration, cancellation or termination of Customer’s EX Program subscription.

Intellectual Property

The rights, title and interest in and to the copyrights, trademarks, patents (if any), registered designs, domain names and all other proprietary or intellectual property rights in and to the Sites, the Services, and all Provider Content shall vest in and remain with Provider and/or its licensors. Customer shall not take any action inconsistent with such rights, title and interest.

Upon Customer’s agreement to these Subscription Terms and completion of Customer’s EX Program subscription registration, Provider shall grant to Customer a limited, revocable, non-exclusive, royalty-free right and license to use such Provider trademarks, names, and logos as Provider may authorize in advance in writing (collectively, the “Provider Marks”), solely for Customer’s Provider-approved promotional activities in connection with the EX Program. Any such uses by Customer shall be consistent with Provider’s reasonable requests to preserve and protect Provider’s rights in the Provider Marks.

By agreeing to these Subscription Terms and completing the EX Program subscription registration Customer thereby grants to Provider a limited, revocable, non-exclusive, royalty-free right and license to use such Customer trademarks, names, and logos as Customer may authorize (collectively, the “Customer Marks”), solely for Provider’s promotional activities in connection with Provider’s EX Program and related services, including without limitation, on the Site.

The licenses granted herein shall expire upon the expiration or termination of Customer’s EX Program subscription.

Data Usage

Provider shall have the right to compile, distribute, publish, and/or submit for publication scientific materials that include aggregated or De-identified Data for the purposes of advancing knowledge about nicotine dependence treatment. Provider may also use Client and Authorized User data to promote the Provider’s Services to Authorized Users, for business operations, and for product improvement or analysis of Service benefits to clients or Authorized Users. Provider represents and warrants that all such activities will be conducted in compliance with HIPAA and its implementing regulations, as applicable.

Indemnification

Customer agrees to indemnify, defend and hold harmless Provider, together with Provider’s directors, officers, employees, agents, vendors and licensors for any and all third party claims, demands, actions, suits, proceedings, liabilities (including statutory liability), penalties, awards, losses, costs, expenses, fines and reasonable attorneys’ fees alleging, resulting from or arising out of: (i) Customer’s violation of these Subscription Terms, as may be amended from time to time; (ii) the misuse or unauthorized use by Customer or any of Customer’s Authorized Users of the Site, the EX Program Site, the Services, the Provider Content, and/or the Software; (iii) Customer’s breach of any statutory requirement, duty, law, or regulation; and/or (iv) Customer’s gross negligence or willful misconduct.

Provider agrees to indemnify, defend and hold harmless Customer, together with Customer’s directors, officers, employees, agents, vendors and licensors for any and all third party claims, demands, actions, suits, proceedings, liabilities (including statutory liability), penalties, awards, losses, costs, expenses, fines and reasonable attorneys’ fees alleging that the Software infringes any intellectual property rights of any third party. If any Software becomes, or in Provider’s sole opinion is likely to become, the subject of a claim of infringement, Provider may, at its sole option: (i) obtain for Customer the right to continue using the Software; (ii) replace or modify the affected Software so that it becomes non-infringing while providing substantially equivalent functionality; or (iii) if such remedies are not available on commercially reasonable terms as determined by Provider in its sole discretion, terminate the license for the affected portion(s) of the Software and refund a pro rata portion of the Fees for the affected portion of the Software, as determined in Provider’s sole discretion.

Warranties

For the duration of Customer’s EX Program subscription, Provider warrants that the EX Program Site will in all material ways work consistent with the functionality of Provider’s publicly available EX Program tobacco cessation digital platform. Customer shall notify Provider in writing, no later than five days following Customer’s first discovery that the EX Program Site fails to perform in accordance with this warranty. Provider shall, after receipt of Customer’s notice, remedy the applicable deficiency within a reasonable time. If Provider is unable to remedy the applicable deficiency as warranted, Provider may refund such portion of the applicable fee actually paid by Customer that is attributable to the deficiency, as determined in Provider’s sole discretion. In addition, for the duration of Customer’s EX Program subscription, Provider warrants that all Services and Support will be performed by qualified personnel in a good and workmanlike manner, consistent with generally accepted industry standards. Provider will not knowingly deliver any Software to Customer that contains computer code that is not a normal feature of the Software and that is designed or intended to, or has the effect of, disrupting, disabling, harming or otherwise materially impeding the normal operation of, or providing unauthorized access to the Software, a computer system, network, or other device (a “Virus”). Provider does not warrant and is not responsible for (i) any third-party products not provided by Provider, or (ii) services not provided solely by Provider, its agents and subcontractors (if any).

The remedies set forth above constitute Provider’s sole and entire liability and Customer’s exclusive remedies with respect to such warranties. Provider shall not be obligated to correct any breach of the above warranties if Customer has not promptly notified Provider of the specific existence and nature of such breach.

Disclaimers and Limitations

While we make every effort to ensure that the Site, the EX Program Site, the Services and the Provider Content is accurate and complete, all elements of the EX Program are provided on an “as-is,” “as available” basis only, without warranties of any kind (either express or implied) unless otherwise stated in these Subscription Terms. To the fullest extent permissible pursuant to applicable law, unless otherwise stated in these Subscription Terms, Provider, its suppliers, subcontractors, licensors and partners disclaim all warranties (express or implied), including without limitation implied warranties of merchantability or fitness for a particular purpose. Without limiting the foregoing, Provider does not warrant that the functions contained in or the access to the Site, the EX Program Site, the Services and/or the Provider Content or other content will be timely, uninterrupted, Error free or without omission, that all defects will be corrected or that the Site, the EX Program Site or and Software code will be completely free of Viruses or other harmful components. Neither Provider nor its suppliers, subcontractors, licensors or partners makes any representation regarding the use or the results of the use of the EX Program, including without limitation, the Site, the EX Program Site, the Services or the Provider Content in terms of their correctness, accuracy, completeness, reliability or otherwise.

Except for the indemnity obligations set forth herein, in no event will Provider’s liability (including any attorneys’ fees awarded) exceed the amounts paid or payable by Customer to Provider during the prior twelve (12) month period, as measured from the date on which any such liability is fully and finally determined in connection with the dispute resolution process under these Subscription Terms. Neither Customer nor Provider will be liable to the other for any special, indirect, incidental, consequential or punitive damages in connection with Customer’s EX Program subscription.

Dispute Resolution

Provider and Customer shall use good faith efforts to attempt to resolve, in an informal manner, all disputes that may arise regarding the enforcement of or obligations under these Subscription Terms. If such efforts are unsuccessful, except as may apply to injunctive relief, Provider and Customer will submit such dispute to binding arbitration in accordance with the then in effect Commercial Arbitration Rules of the American Arbitration Association. The arbitrator (or panel members, as the case may be) shall have experience in commercial contract and intellectual property laws, as applicable. All arbitration hearings shall be conducted in Washington, D.C. and any arbitration award rendered shall be final and binding on all parties to the proceeding. Judgment upon the arbitration award may be entered in any court having jurisdiction. Each party to the arbitration will bear its own attorneys’ fees, costs and expenses in connection with any such proceeding.

Injunctive Relief

In the event of a breach of certain provisions of these Subscription Terms, the non-breaching Party may suffer irreparable harm and significant damages, not fully compensable by money damages alone. Accordingly, the non-breaching Party shall be entitled to seek an injunction or similar equitable relief against such breach or threatened breach, in addition to any other legal or equitable remedies.

Limitation of Liability

EXCEPT FOR THE INDEMNIFICATION PROVISIONS HEREIN, IN NO EVENT WILL PROVIDER’S LIABILITY (INCLUDING FOR ANY ATTORNEYS FEES AWARDED UNDER THESE SUBSRIPTION TERMS) EXCEED THE AMOUNT PAID PR PAYABLE BY CUSTOMER TO PROVIDER DURING THE PRIOR TWELVE (12) MONTHS. NEITHER PROVIDER NOR CUSTOMER WILL BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES IN CONNECTION WITH THESE SUBSCRIPTION TERMS OR CUSTOMER’S USE OF THE EX PROGRAM.

General Provisions

Governing Law
These Subscription Terms and Customer’s and Provider’s rights and obligations hereunder shall be governed by and construed in accordance with the laws of the District of Columbia, U.S.A., excluding that body of law applicable to choice of law.

Entire Agreement
These Subscription Terms constitute the entire agreement between Customer and Provider with regard to the subject matter hereof.

Waiver
The waiver by either Customer or Provider of a breach or a violation of these Subscription Terms by the other shall not be construed as a waiver of any subsequent breach of the same or any other provision of these Subscription Terms, nor shall either Customer’s or Provider’s delay or omission to exercise or avail itself of any right, power or privilege that it has, or may have under these Subscription Terms, operate as a waiver of any right, power or privilege by such party, except as may be expressly provided otherwise in these Subscription Terms.

Severability
If any provision of these Subscription Terms is held in conflict with law, the remaining provisions of these Subscription Terms shall remain in full force and effect to the fullest extent permissible by law.

Assignment
Customer’s rights and obligations under these Subscription Terms may not be assigned in whole or in part without the prior written consent of Provider, and any attempt to make such an assignment without such consent shall be null and void and of no force and effect.

Force Majeure
In the event that either Customer or Provider is prevented from performing, or is unable to perform, any of its obligations under these Subscription Terms due to any cause beyond its reasonable control, the affected party’s performance shall be extended for the period of delay or inability to perform due to such occurrence; provided that the other party may cancel/terminate Customer’s EX Program subscription if such condition continues for a period of 60 consecutive days; provided, however, that this provision does not apply to any payment obligations in connection with Customer’s EX Program subscription.

No Agency/Independent Contractors
Nothing in these Subscription Terms shall create any partnership, joint venture, agency or employment relationship between Provider and Customer.

Notices
Any notice from either Customer or Provider to the other required under these Subscription Terms shall be in writing and either personally delivered or sent via nationally recognized overnight service.

Such notices shall be sent as follows or to such other address(es) as either Customer or Provider may from time to time designate in a notice to the other:

If to Provider:

Truth Initiative, 900 G Street, NW, Fourth Floor, Washington, D.C. 20001  Attn:  Dr. Amanda Graham, Chief of Innovations

with a copy to

Truth Initiative, 900 G Street, NW, Fourth Floor, Washington, D.C. 20001  Attn:  General Counsel

If to Customer:

Addressed to Customer’s designated contact and address as provided in Customer’s EX Program Subscription registration process.

 All notices shall be effective upon delivery to the applicable notice address.

EX Program
Statement of Services

EX Program provides tobacco users with access to the following proven treatment components:

  1. Co-branded website with a robust suite of interactive cessation tools focused on building skills for quitting;
  2. Individually tailored web content developed in collaboration with Mayo Clinic;
  3. Unlimited access to 1:1 live chat coaching with certified tobacco treatment specialists, with service available in English and Spanish, accessible via web or mobile app;
  4. Access to peer and expert support throughout the quitting journey via the longest-running online community for tobacco cessation;
  5. Individually tailored email campaigns to support a user’s quitting journey and achievement of Client requirements regarding incentive-surcharge administration;
  6. An interactive text message program individually tailored to each user based on their tobacco product use, quit date, program engagement patterns, and other factors;
  7. Direct shipment of an 8-week supply of FDA-approved medication (e.g., nicotine patches, gum or lozenges) and integrated medication support through other program components to ensure adherence and troubleshoot medication side effects; and
  8. New features or optimized versions of current features as developed through our ongoing product optimization processes.

EX Program provides Clients with the following services:

  1. Strategic Program Design: A Client Success Manager will conduct a one hour implementation call with clients with strategic guidance to set up appropriate program periods, completion deadlines and recommend communication cadences to the client.
  2. Communications (3 activation campaigns): Client will be able to access three sets of digital promotional materials for Customer to include images, text and print templates. Subject to the licenses set forth in the Agreement, Customer may, at its discretion, utilize such Truth Initiative-provided materials for promotional use only. Any and all promotional materials that include Provider’s materials shall be subject to Truth Initiative’s prior written approval.
  3. Eligibility file configuration and enablement of automatic processing: Prior to the implementation call, Client will receive a template along with secure credentials to send Truth Initiative an eligibility file. Client agrees to send a quarterly eligibility file and understands that Truth Initiative will send one email per quarter to individuals on the file with an email address.
  4. Web-based real-time dashboards: Truth Initiative will provide Customer with one (1) seat licenses per year for Truth Initiative’s reporting application. Customer access to reporting will commence within one month of Customer’s go-live date and will capture data retroactive to the go-live date. Seat licenses will provide access to the following:
    1. Aggregate enrollment data – includes a breakdown of registrants by both gender and age group,
    2. Engagement data – includes aggregate engagement information to track how and where members are engaging with EX Program,
    3. If Customer is using EX Program as a part of a bona fide wellness program (e.g., as a Reasonable Alternative in connection with a tobacco/nicotine surcharge or providing some other form of incentive), Truth Initiative will facilitate administration of such program by providing Customer with access to individual-level reporting on Authorized Users who have registered for and completed EX Program, and
    4. New features or optimized versions of current features as developed through our ongoing product optimization processes.
  5. Executive Business Reviews with a CSM: A Client Success Manager will meet with Client annually to review program results and provide strategic guidance.

 

BUSINESS ASSOCIATE AGREEMENT

THE TERMS OF THIS BUSINESS ASSOCIATE AGREEMENT ARE HEREBY INCORPORATED INTO THE EX PROGRAM SUBSCRIPTION TERMS, PROVIDED THAT YOU HAVE CERTIFIED THAT YOU ARE A COVERED ENTITY FOR PURPOSES OF SUBSCRIBING TO EX PROGRAM.

You have certified you are a Covered Entity for purposes of subscribing to EX Program and are entering into this Business Associate Agreement (“Agreement”) with Truth Initiative Foundation dba Truth Initiative (“Business Associate”) in connection with that subscription.  You understand that you and Business Associate may be referred to herein individually as a “Party,” and collectively as the “Parties”. You understand that this Agreement shall be made effective upon your acceptance of the EX Program Subscription Terms and this Agreement.

1. BACKGROUND

You and Business Associate have entered into a subscription agreement for EX Program services (“Services”) whereby Business Associate provides or assists you with one or more functions or activities that may involve the Use and/or Disclosure of protected health information (“PHI”), as that term is defined under the Health Insurance Portability and Accountability Act of 1996 as amended by the American Recovery and Investment Act of 2009 (“HIPAA”) (hereinafter the “Service Agreement”);

In the event that you disclose PHI to Business Associate and/or Business Associate Uses your PHI, in either case in connection with the Services, the Parties desire to comply with the requirements of HIPAA, and the implementing regulations which are codified at 45 C.F.R. Parts 160, 162 and 164, as such regulations may be amended from time to time and the Health Information Technology for Economic and Clinical Health Act, as incorporated in the American Recovery and Reinvestment Act of 2009 and implementing regulations and guidance issued by the Secretary, all as may be amended from time to time (“HITECH”) (collectively referred to hereinafter as the “HIPAA Standards”); and

The purpose of this Agreement is to satisfy certain standards and requirements of the Privacy and Security Rules, including the requirement of an appropriate agreement between you and Business Associate that meets the applicable requirements of the Privacy and Security Rules.

You and Business Associate acknowledge that each has obligations in its respective role as Covered Entity and Business Associate under the Privacy and Security Rules, as well as regulations promulgated thereunder; and

You and Business Associate intend to protect the privacy and provide for the security of PHI accessed by or disclosed to Business Associate pursuant to their Service Agreement in compliance with this Agreement and the Privacy and Security Rules; and

You and Business Associate agree to enter into this Agreement to ensure Business Associate’s compliance, as a service provider to you, with the HIPAA Standards including the amendments thereto set forth in HITECH Act and any applicable state laws.

2. DEFINITIONS

The following terms used in this Agreement shall have the same meaning as those terms in the HIPAA Standards: Breach, Data Aggregation, Designated Record Set, Disclose, Disclosure, Health Care Operations, Individual, Minimum Necessary, Protected Health Information (PHI), Required By Law, Secretary, Security Incident, Subcontractor, Unsecured Protected Health Information, and Use. Capitalized terms used in this Agreement, but not otherwise defined, shall have the same meaning as those terms in the HIPAA Standards, as they apply to Business Associate Agreements.

In the event of an inconsistency between the provisions of this Agreement and mandatory provisions of the HIPAA Standards, the HIPAA Standards in effect at the time shall control.  Where provisions of this Agreement are different than those mandated by the HIPAA Standards, but are nonetheless permitted or not otherwise proscribed  by such regulations, the provisions of this Agreement shall control. Any reference herein to the HIPAA Standards or other federal or state regulation shall be a reference to such rule or regulation as in effect or as subsequently updated, amended or modified.

3. OBLIGATIONS AND ACTIVITIES OF BUSINESS ASSOCIATE

  1. Use or Disclosure. Business Associate agrees to not Use or further Disclose PHI other than to perform the Services set forth in the Service Agreement, as expressly permitted or required by this Agreement or as Required By Law.
  2. Safeguards and Compliance with the HIPAA Security Regulations.  Business Associate agrees to use appropriate safeguards and comply with 45 CFR Part 160 and Subparts A and C of 45 CFR Part 164 with respect to PHI (including without limitation electronic PHI) to prevent the Use or Disclosure of PHI other than as provided for by this Agreement.
  3. Mitigation. Business Associate agrees to mitigate, to the extent practicable, any harmful effect that is known to Business Associate of a Use or Disclosure of PHI by Business Associate in violation of the requirements of this Agreement.
  4. Reporting. Business Associate agrees to report to you within three (3) business days from the date Business Associate knew or reasonably should have known, any of the following:
    1. Any Use or Disclosure of PHI not permitted by this Agreement of which Business Associate becomes aware.
    2. Any Security Incident of which Business Associate becomes aware.
    3. The discovery of a Breach of Unsecured PHI.

     

For purposes of this Agreement, “Security Incident” shall mean the successful unauthorized access, Use, Disclosure, modification, or destruction of PHI.

You acknowledge and agree that this Section 3.d constitutes notice by Business Associate to you of the ongoing existence and occurrence of attempted but Unsuccessful Security Incidents (as defined herein).  “Unsuccessful Security Incidents” shall include, but not be limited to, pings and other broadcast attacks on Business Associate’s firewall, port scans, unsuccessful log-on attempts, denials of service, malware such as worms or viruses and any combination of the above, so long as such incidents do not result in unauthorized access, Use or Disclosure, modification or destruction of PHI.

  1. Business Associates and Agents.  To the extent applicable, in accordance with 45 CFR 164.502(e)(1)(ii) and 164.308(b)(2), Business Associate shall ensure that any subcontractors that create, receive, maintain, or transmit PHI on behalf of Business Associate for your benefit agree in writing to (i) the same restrictions, conditions and requirements that apply to Business Associate with respect to such information: and (ii) the applicable requirements of the Security Rule (45 CFR Parts 160 and 164);
  2. Access to PHI.  In the event Business Associate maintains PHI in a Designated Record Set, Business Associate agrees to provide access to PHI in such Designated Record Set to you, within ten (10) business days of your written request in order to meet the requirements under 45 CFR § 164.524.  In the event any Individual requests access to PHI directly from Business Associate, Business Associate shall promptly notify you of such request so that you can respond directly to such Individual in accordance with 45 C.F.R. § 164.524.  Any denials of access to the PHI requested by an Individual shall be your responsibility.
  3. Amendment of PHI.  Within ten (10) business days of your written request for the amendment of an Individual’s PHI or record contained in a Designated Record Set (for so long as the PHI is maintained in the Designated Record Set), Business Associate shall make such amendments to such PHI as required by 45 CFR. §164.526 and take such other measures as are necessary to satisfy your obligations under 45 CFR. §164.526.  In the event any Individual requests amendment to PHI directly from Business Associate, Business Associate shall notify you of such request so that you can respond directly to such Individual in accordance with 45 CFR. § 164.526.
  4. Records.  Business Associate shall make its internal practices, books, and records relating to the Use and Disclosure of PHI received from (or created or received by Business Associate on behalf of) you available to the Secretary upon written request for purposes of determining compliance with the HIPAA Standards.
  5. Documentation of Disclosures. To the extent applicable, Business Associate agrees to document Disclosures of PHI and information related to such Disclosures as required for you to respond to a request by an Individual for an accounting of Disclosures in accordance with 45 CFR §164.528.
  6. Accounting of Disclosures. Business Associate shall maintain, and within ten (10) business days of your written request, make available the information required to provide an accounting of Disclosures to you as necessary to satisfy your obligations under 45 CFR 164.528.
  7. Prohibition on Sale of PHI.  Business Associate agrees to comply with the prohibition of sale of PHI without authorization.
  8. Minimum Necessary Use and Disclosure.  In conducting functions and/or activities under this Agreement that involve the Use and/or Disclosure of PHI, Business Associate agrees to limit the Use and/or Disclosure of PHI to the minimum amount of information necessary to accomplish the intended purpose of the Use or Disclosure.

4. PERMITTED USES AND DISCLOSURES BY BUSINESS ASSOCIATE

  1. General Use and Disclosure Provisions. Except as otherwise limited in this Agreement, Business Associate may Use or Disclose PHI in connection with its performance of the Services if such Use or Disclosure of PHI would not violate the HIPAA Standards if done by you or such Use or Disclosure is expressly permitted under Section 3.b (“Specific Use and Disclosure Provisions”) of this Agreement.
  2. Specific Use and Disclosure Provisions
    1. Except as otherwise limited in this Agreement, Business Associate may Use and Disclose PHI for the proper management and administration of the Business Associate or to meet its legal responsibilities; provided, however, that such PHI may only be Disclosed for such purposes only if the Disclosures are required by law or the Business Associate obtains certain reasonable assurances from the person to whom the information is disclosed. The required reasonable assurances are that:
      1. the information will remain confidential;
      2. the information will be used or further Disclosed only as required by law or for the purpose for which the information was Disclosed to the person; and
      3. the person will notify Business Associate of any instances of which it is aware in which the confidentiality of the information has been breached.
    2. Business Associate may Use and Disclose PHI to report violations of law to appropriate Federal and State authorities, consistent with 45 CFR § 164.502(j)(1).
    3. Data Aggregation. Business Associate may provide Data Aggregation services in the course of providing Services under the Service Agreement or relating to the health care operations of Covered Entity as permitted by 45 CFR § 164.504(e)(2)(i)(B).
    4. De-Identification. Business Associate may de-identify any and all PHI, provided that such de-identification is performed in accordance with 45 CFR § 164.514(a) through (c).

5. TERM AND TERMINATION

  1. Term. This Agreement shall continue in effect until the later of (a) termination or expiration of the underlying EX Program subscription or (b) when all of the PHI provided by you to Business Associate or created, received, maintained, or transmitted by Business Associate on your behalf is destroyed or returned to you in accordance with Section 5(c) below.
  2. Termination for Cause. Upon either Party’s knowledge of a material breach by the other Party, the terminating Party shall notify the other Party in writing and provide an opportunity for the breaching Party to cure the breach or end the violation within thirty (30) days of such notice, and terminate this Agreement if the breaching Party does not cure the breach or end the violation within the time specified. If a cure is not reasonably possible, the terminating Party may immediately terminate this Agreement and any such other agreement upon its knowledge of the material breach, upon written notice to the other Party.
  3. Effect of Termination. Upon termination of this Agreement for any reason, Business Associate shall return or destroy (as directed by you) all PHI received from you or created or received by Business Associate or any Subcontractor on your behalf, and neither Business Associate nor any Subcontractor shall retain copies of the PHI. In the event Business Associate determines that returning or destroying (as directed by you) the PHI is infeasible, Business Associate shall extend the protections of this Agreement to such PHI and limit further uses and disclosures of such PHI to those purposes that make the return or destruction infeasible, for so long as Business Associate maintains such PHI.

6. INDEMNIFICATION

Business Associate agrees to defend, indemnify and hold harmless you, together with your officers, directors, agents, representatives and employees, from and against any and all claims, suits, expenses, penalties, fines, damages or other liabilities, including without limitation reasonable attorney’s fees and court costs, arising out of any breach of PHI by Business Associate.

The indemnification provided in this Section 7 is conditioned on (i) you giving Business Associate prompt written notice of such claim; (ii) you providing your full cooperation in the defense of such claim, if requested by Business Associate and at Business Associate’s expense; and (iii) you not entering into any settlement or compromise in respect of such claim without Business Associate’s prior written consent, such consent not to be unreasonably withheld or delayed. You may engage legal counsel at your expense to monitor, but not control, any such claim.

EXCEPT FOR THE INDEMNIFICATION ABOVE (WHICH SHALL BE CONSTRUED AS ACTUAL DAMAGES), BUSINESS ASSOCIATE WILL NOT BE LIABLE TO YOU FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES OF ANY KIND OR NATURE, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE ARISING UNDER THIS AGREEMENT, EVEN IF YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES.

7. MISCELLANEOUS

  1. No Third Party Beneficiaries. There are no intended third party beneficiaries to this Agreement. Without in anyway limiting the foregoing, it is the parties’ specific intent that nothing contained in this Agreement give rise to any right or cause of action, contractual or otherwise, in or on behalf of any Individual whose PHI is used or disclosed pursuant to this Agreement.
  2. Relationship of the Parties. In the performance of the work, duties and obligations described in this Agreement or in any other agreement between the Parties, the Parties acknowledge and agree that each Party is at all times acting and performing as an independent contractor and at no time shall the relationship between the Parties be construed as a partnership, joint venture, employment, principal/agent relationship, or master/servant relationship.
  3. Interpretation. Any ambiguity in this Agreement shall be resolved in favor of a meaning that permits the Parties to comply with the HIPAA Standards.
  4. Amendment. This Agreement shall only be amended or modified upon written consent, signed by both Parties. The Parties agree to take such action as is necessary to amend this Agreement from time to time as necessary for compliance with the requirements of the HIPAA Standards and any other applicable law.
  5. Severability. If any provision of this Agreement shall be declared invalid or illegal for any reason whatsoever, then notwithstanding such invalidity or illegality, the remaining terms and provisions of this Agreement shall remain in full force and effect in the same manner as if the invalid or illegal provision had not been contained herein, and such invalid, unenforceable or illegal provision shall be valid, enforceable and legal to the maximum extent permitted by law.
  6. Governing Law. The validity, interpretation, and performance of this Agreement shall be construed in accordance with the laws of the District of Columbia, without reference to its conflict of laws principles.
  7. Notices. Any notice or other communication given pursuant to this Agreement must be in writing and (i) delivered by hand, (ii) delivered by overnight express, or (iii) sent by registered or certified mail, postage prepaid, to the address set forth above and shall be considered given upon delivery.
  8. Conflicts. In the event of a conflict between the terms of this Agreement and the EX Program Subscription Terms, the terms of this Agreement shall prevail. Business Associate’s obligations hereunder shall not be subject to any limitations of liability or remedies in the EX Program Subscription Terms. Any provision of the EX Program Subscription Terms that are not modified by this Agreement shall remain in full force and effect in accordance with the terms thereof.
  9. Waiver. No change, waiver or discharge of any liability or obligation hereunder on any one or more occasions shall be deemed a waiver of performance of any continuing or other obligation, or shall prohibit enforcement of any obligation, on any other occasion.
Human Resources Today