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GET REAL HEALTH ELLIE™ TERMS AND CONDITIONS

GET REAL HEALTH ELLIE™ TERMS AND CONDITIONS

 

These Ellie™ Terms and Conditions (“Terms and Conditions”) are made effective as of the date that the parties execute the Ellie Order Form (“Effective Date”). These Terms and Conditions, along with all Attachments, Appendices, Order Forms and Statements of Work, describe the Terms and Conditions under which iNetXperts Corp. d/b/a Get Real Health (“GRH”) will license Products, provide Services and Deliverables for Client (together, the “Agreement”).

ARTICLE 1
AGREEMENT STRUCTURE

1.1             Terms and Interpretation.  Certain terms used in the Agreement are defined in Article 10 herein, or in the Attachments, schedules, and other documents attached hereto and made a part hereof. Terms, acronyms and phrases known in the information technology industry shall be interpreted in accordance with their generally known meanings.  Unless the context otherwise requires, words importing the singular include the plural and vice-versa.

1.2             Order Form/Ordering of Services.  Client’s orders with GRH will be placed using an Order Form. Each Order Form will describe the Products, license term, hosting services, Professional Services and any terms and conditions for the Products and services, and any applicable Fees. All Order Forms will be subject to these Terms and Conditions. Any terms and conditions added or referenced by either Party in the Order Form, confirmation, acceptance or any similar document purporting to modify the Terms and Conditions, shall be disregarded unless expressly agreed upon in writing signed by the Parties, which expressly amends any portion of the Agreement. GRH has no obligation to provide any Services or Products other than as set forth in an executed Order Form. Client further agrees to reimburse GRH for all reasonable expenses incurred by the GRH in connection with the performance of Services under any Order Form or pursuant to the Agreement, including, without limitation, all travel expenses (including transportation, meals, lodging, relocation, and all other travel-related expenses), technical support expenses, telephone and facsimile expenses, computer usage, and document preparation and reporting expenses. Client agrees to cooperate fully with GRH’s performance of Services pursuant to the Agreement. For this purpose, Client will provide GRH with such information, in Client’s possession, that GRH may reasonably require to properly perform any Order Form. Client will also make its staff available to GRH for such purpose. The Services to be performed pursuant to the Agreement may be rendered at GRH’s facilities, the Client’s facilities, or at other suitable locations mutually agreed by GRH and Client in the Order Form.

ARTICLE 2
FEES AND PAYMENT

2.1             Types of Fees.

2.1.1        Fees For Purchased Licenses.  Client shall pay all license fees for the licenses of the Products as specified in an Order Form entered into hereunder (“License Fees”). License Fees are based on licenses purchased and not actual usage. Client must pre-purchase Product Licenses before the Licenses are used. If Client License usage exceeds the number of licenses purchased, Client will purchase such additional licenses at the license prices listed in the applicable Order Form for the applicable period during the usage overage. The start and end date of an InstantPHR license will be the same as the annual period during which the license is purchased (i.e. license prices are not prorated or discounted because the license was not pre-purchased on the first day of the annual period). For example, a block of licenses purchased 9 months after the start date will be the same price as if Client had purchased the licenses on the start date, and will end on the same end date of the annual period during which the license was purchased, unless otherwise specified in an Order Form.

2.1.2        Product License Counting.

(a)              Care Manager User Model. A Product License is used (i.e. counted) when each provider or other healthcare professional accesses the provider portal or patient portal for the first time.

(b)             Patient User Model. A Product License is used when each health record is created (whether through self-signup, clinically initiated, bulk loading or any other means). Each health record is allocated one free patient account. If the number of patient accounts exceeds the number of health records, each patient account exceeding the number of records will use an additional Product License.

(c)              Population Model. A Product License is used (i.e. counted) as described in Client’s Ellie Product Order Form.

2.1.3        Support Fees. Support Fees are included in the License Fees unless otherwise specified in the Order Form.

2.1.4        Professional Services Fees. Client shall pay the Professional Services Fees as specified in any Order Form entered into hereunder (“Service Fees”).

2.1.5        Invoicing and Payment. GRH will provide Client with written invoices for all Fees. Client will pay all invoiced amounts within thirty (30) days of the invoice date. All purchases of the Products, Services, and Deliverables are non-refundable, non-returnable, non-cancelable and non-exchangeable. All Fees are quoted and payable in U.S. Dollars. Unless otherwise agreed in the Ellie Order Form, GRH will invoice Client for the initial year of annual Product licenses upon execution of the Product Order Form. GRH will invoice Client for the annual license fees for each subsequent year thirty (30) days in advance of the anniversary of the date that the Product is production ready for Client. Following the initial Term selected in the Product Order Form, the Product licenses purchased under each Order Form will automatically renew for one-year terms unless either party advises the other in writing at least sixty (60) days prior to the expiration of the then-current Term.

2.2             Payment Disputes.  If Client believes in good faith that GRH’s invoice is incorrect and Client wishes to dispute any such invoice, Client must notify GRH in writing within thirty (30) days of the invoice date giving detailed particulars of the disputed charges and attaching any relevant documentation. If Client disputes a portion of the charges in any invoice, Client shall pay any undisputed portion by the date of the invoice.  GRH shall not exercise its rights under Section 2.4 (Overdue Charges) or Section 2.5 (Suspension of Licenses) if the applicable charges are the subject of a good-faith dispute and Client is cooperating diligently to resolve the dispute.

2.3             Overdue Charges.  If Client fails to pay undisputed invoices by the due date, Client will pay interest on such non-payment at the lower of (i) a monthly interest equal to one and one-half percent (1-1/2%) or (ii) the highest rate permitted by applicable law. Client is responsible for all collection fees incurred by GRH in collecting undisputed, delinquent accounts, including attorneys’ fees and court costs.

2.4             Suspension of Licenses.  If any amount owing by Client under this or any other agreement for GRH licenses is thirty (30) or more days overdue, GRH may, without limiting GRH other rights and remedies, suspend GRH licenses to Client until such amounts are paid in full, but not until thirty (30) days following written notice stating the intent to do suspend licenses.

2.5             Price Escalation. Get Real Health may increase the annual fees no more than once per year. No increase in annual fees may exceed the greater of: (i) five percent (5%) over the fee for the immediately prior annual term or (ii) the increase in the Consumer Price Index for All Items, U.S. City Average, All Urban Consumers (base year 1982-84 = 100) (“CPI-U”) as published by the United States Department of Labor on the Bureau of Labor Statistics website from the prior one-year period.

2.6             Taxes.  All payments by the Client to GRH hereunder for fees and expenses shall be net of any sales or services tax, VAT or any other tax, assessments, tariffs, duties or other fees of any kind whatsoever imposed, assessed or collected by or under the authority of any governmental body (collectively, “Taxes”) arising from GRH’s provision of the Product and Services hereunder, except any Taxes assessed upon GRH’s net income. Client shall be solely responsible for the payment of all Taxes. If GRH is required to directly pay Taxes related to Client’s use of the Product hereunder, Client shall promptly reimburse GRH for any amounts paid by GRH.

2.7             Audit. Client is responsible for implementing reasonable means to monitor its compliance with the terms of the Agreement. At GRH’s written request throughout the Term and for two (2) years thereafter, Client shall furnish GRH with copies of any requested documents and/or grant or permit GRH or its designees access to Client’s facilities in order for GRH to verify Client’s compliance with this Agreement. GRH shall schedule any audit at least ten (10) days in advance. Any such audit shall be conducted during regular business hours at Client’s facilities and shall not unreasonably interfere with Client’s business activities. If such audit reveals that Client has underpaid Fees to GRH, Client shall promptly pay to GRH (i) such Fees at GRH’s then-current list prices and (ii) and other costs incurred by GRH in performing such audit.

ARTICLE 3
PROPRIETARY RIGHTS

3.1             Licenses for Products. Subject to the limited rights expressly granted hereunder, GRH reserves all rights, title and interest in and to the Product, including all related intellectual property rights. No rights are granted to Client hereunder other than as expressly set forth herein. Get Real Health alone (and its licensors, where applicable) shall own all right, title and interest, including all related Intellectual Property Rights, in and to the Technology, the Content and the Product and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Client or any other party relating to the Product. This Agreement is not a sale and does not convey Client to any rights of ownership in or related to the Products, the InstantPHR® Technology, the Connected Health Base™ (“CHBase”™) technology or the Intellectual Property Rights owned by Get Real Health. The Get Real Health name, the Get Real Health logo, the InstantPHR logo, the CHBase logo and the product names associated with the Product are trade-marks of Get Real Health or third parties, and no right or license is granted to use them.

3.2             Order Forms. GRH shall license the Products to Client pursuant to an Order Form. The licenses hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by GRH regarding future functionality or features. GRH grants to Client a non-exclusive, non-transferable, revocable, limited right to use the Product for the License Term in the Licensed Territory as contained in an Order Form.

3.3             Client Responsibilities.  Client shall use the GRH Technology, Products and Services solely for its internal business purposes, as further set forth in the applicable Order Form. Client is not an authorized reseller of any Get Real Health Products and any attempt to resell any Get Real Health Products shall be void. Client is responsible for all activities that occur in Users’ accounts and for Users’ compliance with the Agreement. Client shall: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Client Content; (ii) ensure that it, its Affiliates and each of their Users do not share user names or passwords for the Services, attempt to circumvent access or security restrictions or protocols for the Services, and/or permit any other third-party to do the same; (iii) use its best efforts to prevent unauthorized access to, or use of the Products and/or Services, and notify GRH immediately of any such unauthorized access or use; (iv) comply with all applicable local, state, federal and foreign laws, rules and regulations in using the Products and/or Services, including those related to Data privacy, international communications, and the transmission of technical or personal Data; (v) be solely responsible for use of any code, password, firewalls or other means necessary to restrict electronic access to its computers, servers, or other equipment; (vi) ensure that it, its Affiliates and each of their Users adhere to GRH’s Terms of Use and Privacy Policy (the “Privacy Policy”), as may be amended from time-to-time in GRH’s sole discretion; and (vii) be solely responsible for maintaining back-ups of and storing all Client Content and software. GRH’s privacy and security policies will be agreed by Users prior to accessing the Product. GRH reserves the right to modify its policies from time to time in its reasonable discretion. Client shall comply with all GRH instructions relating to Client’s use of the Products and/or Services, including, but not limited to, instructions specifying specific windows of time for certain types of Client Content uploading.

3.4             Rights in Deliverables.  Upon payment of all Service Fees to GRH, GRH grants a royalty free, limited license to Client to use derivative works. GRH retains full ownership of its pre-existing knowledge, processes, techniques, Products, software and other intellectual property (“GRH Materials”), provided, however, to the extent such GRH’s Property is incorporated in or a component or part of a Deliverable fully paid for by Client, then GRH grants to Client a royalty free license to use GRH’s Property in connection with Client’s use of the Deliverables, subject to payment of License Fees. Nothing contained herein shall prohibit GRH from using any of GRH’s software, tools or general knowledge or knowledge acquired in performing or creating the Deliverable (“Tools”) for its internal purposes and/or to perform similar services for other clients. Accordingly, Client grants to GRH a perpetual, royalty-free, worldwide, transferable, irrevocable, sublicensable, non-exclusive license to use or incorporate the Tools as well any suggestions, enhancement requests, recommendations or other feedback provided by Client (or its customers) into any products or services.

3.5             Reservation of Rights; Intellectual Property Ownership.  Except as otherwise provided in Section 3.4 above, GRH alone (and its licensors, where applicable) shall own all right, title and interest, including all related Intellectual Property Rights, in and to the GRH Technology any modifications, enhancement and improvements to the same, including any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Client or any other Party relating to the Product. The Agreement is not a sale and does not convey to Client any rights of ownership in or related to the Products, GRH Technology or the Intellectual Property Rights owned by GRH. Client does not obtain any license or ownership rights in any GRH Marks.

3.6             Restrictions.  GRH licenses cannot be shared or used by more than one (1) individual User and may not be reassigned to new Users. Unless expressly permitted in an Order Form or stated in this Agreement, Client shall not, nor shall it permit any third-party to: (i) license, sublicense, sell, resell, rent, lease, transfer, assign (except as permitted in Section 11.3), distribute, time share or otherwise commercially exploit or make the GRH Technology available to: (a) any third-party, other than to Users, (b) Users in excess of the number of authorized Users, or (c) any person or entity outside of the Licensed Territory; (ii) remove, alter, or obstruct copyright notices, trademarks or other legends on the GRH Technology, or its packaging, documentation or related materials; (iii) intentionally send or store: (a) spam or otherwise duplicative or unsolicited messages in violation of applicable laws, (b) infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material that is harmful to children or violates third-party privacy rights, or (c) malicious or harmful code, including but not limited to viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs; (iv) interfere with or disrupt the integrity or performance of the GRH Technology or the data contained therein; (v) attempt to gain unauthorized access to the GRH Technology or its related systems or networks, except as permitted herein or in the Order Form, (vi) modify the GRH Technology or create derivate works (vii) create internet “links to the Product or copy, frame or mirror any part or GRH Technology (or any source code or object code thereof), other than copying or framing on Client’s own intranets or otherwise for Client’s own internal business purposes, (viii) reverse engineer, disassemble, de-compile, modify, translate or use for competitive analysis the GRH Technology; or (ix) access, copy or use the GRH Technology in order to: (a) build a competitive product or service; (b) copy any features, functions or graphics of the GRH Technology; or (c) monitor the availability, performance or functionality or for any other benchmarking or competitive purpose. Upon fifteen (15) business days’ notice, GRH may modify or temporarily suspend Client’s access to and use of the GRH Technology for its failure to cure breach of the aforementioned restrictions or as necessary to comply with any law or regulation.  Upon correction, GRH shall promptly return Client’s full access to the GRH licenses.

3.7             Ownership of Client Content. As between GRH and Client, Client exclusively owns all rights, title and interest in and to all of Client Content.  Client Content is deemed Confidential Information under the Agreement. Client shall be solely responsible for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Client Content, including, but not limited to, uploading the Client Content to the Products, assuring that all such Client Content is properly formatted and configured, and is in all respects “Product-ready.”  Upon written request from Client, GRH will use reasonable efforts to assist Client in uploading and validating Client Content for sufficiency, correctness, and/or usability. However, GRH will not be held liable for any Product failure or impairment caused by or related to Client Content. The data storage is sole responsibility of the entity hosting the Client Content. GRH shall not be responsible or liable for the deletion, correction, destruction, damage, loss, or failure to store any Client Content. Client warrants and represents that Client Content: (a) does not and shall not infringe or violate the rights of any third-party including, but not limited to, Intellectual Property Rights, patents, copyrights, trademarks, trade secrets and rights of publicity; (b) is not defamatory or obscene; and (c) does not violate any applicable Federal, state or local law. Client shall defend, indemnify and hold harmless GRH against any claim or demand by any third-party due to or arising out of any third-party claims for Client Content.  Client shall not engage in any violations of privacy, “spamming”, violations of law, or conduct that might infringe on the rights of obligations of any third-party, and Client shall defend, indemnify and hold GRH harmless against any violations of its obligations herein.

3.8             Analytics Data.  Client understands that Get Real Health will analyze site traffic for the Products through a web analytics engine such as Google Analytics. Get Real Health will review aggregate-level site analytics at least quarterly to evaluate site performance. Analytics to be evaluated include, but are not limited to, (1) In Page Analytics; (2) Site Content Metrics; (3) Audience Metrics; and (4) Acquisition Metrics. GRH also regularly monitors aggregate license usage for site performance and billing purposes.

3.9             Federal Government End-User Provisions.  GRH will provide the licenses, including related software and technology, for ultimate federal government end use solely in accordance with the following:  government technical data and software rights related to the licenses include only those rights customarily provided to the public as defined in the Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation).  If a government agency has a need for rights not conveyed under these terms, it must negotiate with GRH to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement.

ARTICLE 4
CONFIDENTIALITY

4.1             Definition of Confidential Information.  As used herein, “Confidential Information” means all Confidential Information disclosed by a Party (“Disclosing Party”) to the other Party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Client’s Confidential Information shall include Client Content. GRH Confidential Information shall include the GRH Technology. Confidential Information of each Party shall include the Terms and Conditions of the Agreement and all Order Forms, as well as business and marketing plans, technology and technical information, product plans and designs, information disclosed during the course of GRH provided maintenance and support, business processes and any other information that reasonably should be considered to be confidential that is disclosed by such Party. Confidential Information shall not include any information that:  (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third-party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.

4.2             Protection of Confidential Information.  Except as otherwise permitted in writing by the Disclosing Party, (i) the Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own Confidential Information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of the Agreement, and (ii) the Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with the Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.

4.3             Protection of Client Content.  Without limiting the above, GRH shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Client Content. GRH shall not disclose Client Content except as compelled by law or as expressly permitted in writing by Client, or modify or access Client’s Data except to provide the Services.

4.4             Compelled Disclosure.  The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.  If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a Party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.

ARTICLE 5
WARRANTIES AND DISCLAIMERS

5.1             GRH Warranties.

5.1.1        Professional Services and Support Services.  GRH warrants for that the Professional Services and Support Services will be performed in a workmanlike manner in accordance with industry standards.

5.1.2        Hosting Services.  There are no warranties, expressed or implied, with respect to the Hosting Services and all warranties with respect to the Hosting Services are disclaimed, whether expressed or implied including without limitation any implied warranties of fitness for a particular purpose or of non-infringement.

5.1.3        Third-Party Products.

(a)              During use of the Product, Client may enter into correspondence with, goods and/or Services from, or participate in promotions of advertisers or sponsors showing their goods and/or Services through the Product. Any such activity, and any terms, conditions, warranties, or representations associated with such activity, are solely between Client and the applicable third-party. GRH and GRH licensors shall have no liability, obligation or responsibility for any such correspondence, purchase, or promotion between Client and any such third-party. GRH does not endorse any sites on the internet that are linked through the Product. GRH provides these links to Client only as a matter of convenience, and in no event shall GRH or GRH licensors be responsible for any Content, Products, or other materials on or available from such sites. GRH provides the license to Client pursuant to the Terms and Conditions of the Agreement.  Client recognizes, however, that certain third-party providers of ancillary software, hardware, or Services may require Client’s agreement to additional or different licenses or other terms prior to Client’s use of or access to such software, hardware, or Services. To the extent that any Third-Party Products are contained in the Product, GRH cannot provide any guarantees that such Third-Party Products will be available or function properly, as support and availability of such products is outside of GRH’s control.

(b)             GRH may license Third-Party products via Order Forms. Any other acquisition by Client of Third-Party Products or Services, including but not limited to Third-Party Products and implementation, customization and other consulting Services, and any exchange of data between Client and any third-party provider, is solely between Client and the applicable third-party provider.  GRH does not warrant or support Third-Party Products or Services, whether or not they are designated by GRH as “certified” or otherwise, except as specified in an Order Form.

(c)              If Client installs or enables Third-Party Products for use with the Product, Client acknowledges that GRH may allow providers of those Third-Party Products to access Client Content as required for the interoperation of such Third-Party Products with the Product.  GRH shall not be responsible for any disclosure, modification or deletion of Client’s Data resulting from any such access by Third-Party Product providers. GRH is not responsible for the functioning of any Third-Party Products of any kind, whether the Third-Party Products are devices, software, programs, web-based services, Professional Services or otherwise.

5.1.4        Exclusive Remedies. For any breach of the limited warranties contained in this Section 5.1, Client’s exclusive remedy shall be to require GRH, at GRH’s option, to either: (i) at no additional fee to Client, re-perform the Services or revise the Products or Deliverables to bring them into conformance, or (ii) provide a prorated refund or credit to Client of the Fees attributable to the non-conforming portion of the Services, Product or Deliverable.

5.2             Mutual Warranties.  Each Party represents and warrants that (i) it has the legal power to enter into the Agreement, and (ii) it will not transmit to the other Party any Malicious Code (except for Malicious Code previously transmitted to the warranting Party by the other Party).

5.3             Disclaimer.  EXCEPT AS EXPRESSLY PROVIDED IN THIS ARTICLE 5, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT.  IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, OR COVER DAMAGES ARISING OUT OF THE USE OF OR INABILITY TO USE THE PRODUCT OR ANY THIRD PARTY PRODUCTS.

ARTICLE 6
MUTUAL INDEMNIFICATION

6.1             Indemnification by GRH.  GRH shall defend Client against any claim, demand, suit, or proceeding (“Claim”) made or brought against Client by a third-party alleging that the use of the Product as permitted hereunder infringes or misappropriates the Intellectual Property Rights of a third-party, and shall reimburse Client for or pay any damages finally awarded against Client in connection with any such Claim or agreed to by GRH in settlement of such Claim; provided, that Client (a) promptly give GRH written notice of the Claim; (b) gives GRH sole control of the defense and settlement of the Claim (provided that GRH may not settle any Claim unless the settlement unconditionally releases Client of all liability or Client consents to such settlement, consent not to be unreasonably withheld); and (c) provide to GRH all reasonable assistance, at Client’s expense.

6.2             Indemnification by Client. Client shall defend GRH against any Claim made or brought against GRH by a third-party alleging that Client Content, or Client’s use of the Product in violation of this Agreement, infringes or misappropriates the Intellectual Property Rights of a third-party or violates applicable law, and shall reimburse GRH for or pay any damages finally awarded against GRH in connection with any such Claim or agreed to by Client in settlement of such Claim; provided, that GRH (a) promptly give Client written notice of the Claim; (b) gives Client sole control of the defense and settlement of the Claim (provided that Client may not settle any Claim unless the settlement unconditionally releases GRH of all liability to GRH consents to such settlement, consent not to be unreasonably withheld); and (c) provides to Client all reasonable assistance, at GRH’s expense.

6.3             Exclusive Remedy.  This Article 6 (Mutual Indemnification) states the indemnifying Party’s sole liability to, and the indemnified Party’s exclusive remedy against, the other Party for any type of Claim described in this Article 6.

ARTICLE 7
LIMITATION OF LIABILITY

EXCEPT FOR A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS CONTAINED IN ARTICLE 4 OR ITS INDEMNIFICATION OBLIGATIONS CONTAINED IN ARTICLE 6, AND, IN THE CASE OF CLIENT, ITS  BREACH OF THE PAYMENT OBLIGATIONS CONTAINED IN ARTICLE 2 AND THE PROPRIETARY RIGHTS PROVISIONS CONTAINED IN ARTICLE 3: (A) THE TOTAL CUMULATIVE LIABILITY OF EITHER PARTY TO THE OTHER PARTY OR ANY THIRD-PARTY FOR ANY AND ALL LIABILITY ARISING UNDER OR RELATED TO THE AGREEMENT, INCLUDING ANY ORDER FORM OR ATTACHMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL NOT EXCEED THE FEES PAID TO GRH BY CLIENT UNDER THE APPLICABLE ORDER FORM WITHIN ONE (1) YEAR PRECEDING SUCH LIABILITY, AND (B) UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, STATUTORY, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, OF ANY KIND WHATSOEVER, OR FOR ANY LOST PROFITS, BUSINESS OR REVENUE, LOSS OF USE OR GOODWILL, OR OTHER LOST ECONOMIC ADVANTAGE, ARISING OUT OF OR RELATED TO THE AGREEMENT, INCLUDING ANY ORDER FORM OR ATTACHMENT, WHETHER SUCH CLAIMS ARE BASED ON BREACH OF CONTRACT, STRICT LIABILITY, TORT, ANY FEDERAL OR STATE STATUTORY CLAIM, OR ANY OTHER LEGAL THEORY, EVEN IF A PARTY KNEW, SHOULD HAVE KNOWN, OR HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  ALL ACTIONS UNDER THE AGREEMENT MUST BE BROUGHT WITHIN TWO (2) YEARS FROM THE FIRST DATE OF THEIR ACCRUAL. THE FOREGOING LIMITATIONS SHALL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY IS DETERMINED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

ARTICLE 8
TERM AND TERMINATION

8.1             Term of Agreement.  The Agreement shall be effective for a term of three (3) years from the Effective Date (“Term”). The Agreement shall be automatically extended for further one-year terms unless either Party gives written notice to the other at least thirty (30) days before the expiration of the initial or any renewal term of the Party’s intent not to renew.

8.2             Term of Purchased Licenses.  Licenses purchased by Client commence on the start date and end date specified in the applicable Order Form.

8.3             Termination for Cause. Either Party may terminate all or a portion of the Agreement, including any Attachment or Order Form for cause: (i) upon thirty (30) days written notice to the other Party of a material breach if such breach remains uncured after thirty (30) days from the date of such notice, or (ii) if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Upon any termination for cause by Client, GRH shall not refund Client any prepaid Fees. Nonpayment of invoices shall be considered to be material breach. Upon any termination for cause by GRH, Client shall pay any unpaid Fees of all Order Forms. In no event shall any termination relieve Client of the obligation to pay the upfront Fees payable to GRH.

8.4             Effect of Termination.  Except as otherwise set forth herein, expiration or termination of the Agreement shall have the following effects: (i) no future Order Forms may be made pursuant to the Agreement; (ii) all licenses granted under the Agreement shall remain in effect pursuant to the terms and conditions contained in the applicable Order Forms; and (iii) all Order Forms for Services shall continue until they are terminated or expire. Upon termination of the Agreement for cause due to Client’s breach: (i) no future Order Forms may be made pursuant to the Agreement; (ii) all licenses granted under the Agreement (or any Order Form) shall terminate immediately; and (iii) GRH shall have no obligation to provide any Services. Following termination or expiration of the Agreement, upon request by Client made within sixty (60) days after the effective date of termination or expiration, and provided Client is not in default, GRH shall make available to Client for download a file of Client Content in the current format in which it is stored in the Product. After such sixty (60) day period, GRH shall have no obligation to maintain or provide any Client Content and may thereafter unless legally prohibited, delete all Client Content in its systems or otherwise in its possession or under its control. In the event of termination of Professional Services set forth in an applicable Order Form, Client shall pay GRH all fees due and unreimbursed out-of-pocket expenses incurred by GRH up to the date of termination or expiration of such Order Form.

8.5             Survival.  Expiration or termination of the Agreement or any Order Form will not relieve either Party from its obligations arising hereunder prior to such expiration or termination.  The following provisions will survive the termination or expiration of the Agreement: Article 2 (Fees and Payment), Article 3 (Proprietary Rights), Article 4 (Confidentiality), Section 5.3 (Disclaimer), Article 6 (Mutual Indemnification), Article 7 (Limitation of Liability), Article 9 (Notices), Article 10 (Definitions) and Article 11 (General Provisions). In addition, all provisions, including in any Attachment, that can be given proper effect only if they survive the termination or expiration of the Agreement will survive the termination or expiration of the Agreement.

ARTICLE 9
NOTICES

Except as otherwise specified in the Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second (2nd) business day after mailing, (iii) the second (2nd) business day after sending by confirmed facsimile, or (iv) the first (1st) business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim). Billing-related notices to Client shall be sent to the relevant billing contact designated by Client. All other notices and other communications under the Agreement shall be given to the Party to which such notice is directed in the Order Form.

ARTICLE 10
DEFINITIONS

Capitalized terms used herein shall have the meanings ascribed to them in the Attachments, transaction documents, schedules, appendices, and other documents attached hereto, or as defined hereunder:

10.1          “Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity.  “Control”, for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity as defined in the Agreement for the Products.

10.2          “Agreement” means the Terms and Conditions, Support Agreement, HIPAA BAA and all Order Forms.

10.3          “Client” means the specific entity who is a customer of GRH identified in an executed Order Form.

10.4          “Client Content” means all electronic data or information submitted by Client to the Product.

10.5          “Content” means the textual, visual or aural content that is created by the administrators of the site that is encountered as part of the User experience on websites. The user generated content or data that is produced by Users of the site as defined in the Agreement for the Products is excluded.

10.6          “Deliverables” means the customization work, reports or other items delivered by GRH to Client for Professional Services, as specifically identified in an Order Form.

10.7          “Documentation” means the online User guides made generally available for the Product, as updated from time-to-time, the foregoing shall exclude any marketing materials or demonstrations of the Product.

10.8          “Ellie” means the specific version and configuration of Products that GRH licenses to its customers under the Ellie brand.

10.9          “Fee” or “Fees” means singularly or collectively, as applicable, License Fees, Support Fees, hosting fees and /or Service Fees.

10.10       “GRH” means the entity identified as such in the Preamble.

10.11       “GRH Content” means any Content supplied or developed by GRH, its agents or licensors.

10.12       “GRH Technology” means the Products, Services, Deliverables, features, widgets, InstantPHR, Connected Health Base (“CHBase”), GRH Content, Tools, GRH Materials, and the GRH Marks.

10.13       “GRH Marks” means Get Real Health, the InstantPHR logo, the CHBase logo and the product names associated to the Products, and any and all other trademarks, service marks, logos or domain names of GRH, its affiliates or their licensors.

10.14       “Hosting Services” means the specific hosting services described in this Agreement and an Order Form.

10.15       “Incident” means a defect or perceived defect in the Product, which is not able to first be solved by Client.

10.16       “Intellectual Property Rights” means worldwide, whether registered or unregistered, patent rights, copyrights, trademark, trade secret, moral rights, or similar intellectual property rights.

10.17       “License Fees” means the fees payable for Licenses as described in the Agreement and an Order Form.

10.18       “Licensed Term” means the term of the license of the Products as described on the applicable Order Form, defaulting to 3 years unless otherwise stated.

10.19       “Licensed Territory” means the geographic, industry or other territory for the license of the Products, as further described on the applicable Order Form.

10.20        “Licenses” means the specific Products licensed to Client under this Attachment and any accompanying Order Form.

10.21       “Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or Malicious Code, files, scripts, agents or programs as defined in the Agreement for the Products.

10.22       “Order Form” means a written ordering document that is executed by the Parties for the purchase or licensing of Products or Services pursuant to the Agreement. Order Forms are incorporated into and subject to the terms of the Agreement.

10.23       “Party” or “Parties” means singularly or collectively as applicable, GRH and Client.

10.24       “Product” or “Products” means the specific version, modules and other components of GRH’s CHBase platform and InstantPHR application which are licensed to Client in an Order Form. The functionality included in the Product is determined, and may be modified, in GRH’s sole discretion. Product excludes Third-Party Products.

10.25       “Professional Services” means the specific professional services described in an Order Form.

10.26       “Services” means singularly or collectively, as applicable, Support Services, Hosting Services and/or Professional Services.

10.27       “Support Fees” means Fees for technical maintenance and support of the product as described in this Agreement and an executed Order Form.

10.28       “Support Services” means the specific technical maintenance and support services described in the Support Agreement and agreed to by the Parties in an accompanying Order Form.

10.29        “Third-Party Products” means online, web-based or user-based products, applications, offline software products or devices that are provided or developed by third-parties, interoperate with the Product, or are identified as third-party products in the Agreement or an Order Form.

10.30       “Users” means individuals who are authorized by Client to use the Product, for whom licenses have been purchased.

ARTICLE 11
GENERAL PROVISIONS

11.1          Export Compliance.  Each Party shall comply with the export laws and regulations of the U.S. and other applicable jurisdictions in providing and using the Services. Without limiting the foregoing, (i) each Party represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, and (ii) Client shall not permit GRH to access or use Services in violation of any U.S. export embargo, prohibition or restriction.

11.2          Relationship of the Parties.  Both Parties agree that they are independent entities. Nothing in the Agreement shall be construed to create a partnership, joint venture, or agency relationship between the Parties. Each Party is responsible for the supervision, management, direction, employment costs, and payment of compensation of its own employees.  Each Party is responsible for any injury to its own employees occurring in the course of such employees employment for which their employer is responsible. There are no third-party beneficiaries to the Agreement.

11.3          Precedence in the Event of Conflict.  Any conflict between the Terms and Conditions, an Attachment or an Order Form will be resolved in the following priority: first, the Terms and Conditions, then the Attachments and last the terms and provisions of the Order Form.

11.4          Assignment.  Client may not assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of GRH and any attempt to do so without such consent will be void. Notwithstanding the foregoing, GRH may assign the Agreement in its entirety, without consent of Client, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets; provided, however, that GRH to remain liable for all of its liabilities and obligations hereunder. A Party’s sole remedy for any purported assignment by the other Party in breach of this Section shall be, at the non-assigning Party’s election, termination of the Agreement upon written notice to the assigning Party. In the event of such a termination, GRH shall not refund to Client any prepaid fees.  Subject to the foregoing, the Agreement shall bind and inure to the benefit of the Parties, their respective successors and permitted assigns.

11.5          Publicity.  Each Party may reference the other party and the nature of the Products and Services provided hereunder in the Party’s business development and marketing efforts, including, without limitation, its website, provided that any such publicity must be pre-approved by the other Party. Client will allow GRH to issue a Client approved press release announcing the relationship described herein.

11.6          Governing Law; Venue.  The Agreement will be governed in all respects by the laws of the State of Maryland, and where applicable the U.S., (excluding principles of conflicts of law). The Parties irrevocably submit to venue and exclusive personal jurisdiction in the state courts in Rockville, Maryland, and the federal courts of Maryland, U.S.A. for any dispute arising out of the Agreement, and waives all objections to jurisdiction and venue of such courts. The Parties hereby irrevocably waive any and all claims and defenses either might otherwise have in any action or proceeding in any of such courts based upon any alleged lack of personal jurisdiction, improper venue, forum non conveniens or any similar claim or defense. The Parties hereby agree to waive or opt-out of any Product of the United Nations Convention on Contracts for the International Sale of Goods. Client shall pay on demand all of GRH’s reasonable attorneys’ fees and other costs incurred by GRH to collect any fees or charges due to GRH under the Agreement. EACH PARTY HEREBY WAIVES ANY RIGHT TO JURY TRIAL IN CONNECTION WITH ANY ACTION OR LITIGATION IN ANY WAY ARISING OUT OF OR RELATED TO THE AGREEMENT, EXCEPT FOR CLAIMS RELATING TO INFRINGEMENT OF INTELLECTUAL PROPERTY, PERSONAL INJURY OR DAMAGE TO PERSONAL PROPERTY.

11.7          Agreement; Interpretation; Amendment.  The Agreement, including all Attachments and addenda hereto and all Order Forms, constitutes the entire agreement between the Parties with respect to the subject matter hereof, and supersedes all prior agreements, proposals or representations, written or oral, concerning its subject matter. Any rule of construction to the effect that ambiguities are to be resolved against the drafting Party will not apply in the interpretation of the Agreement. The Agreement may be modified only by a writing signed by both Parties.

11.8          Waiver and Cumulative Remedies.  The failure of either Party to exercise any power or right granted hereunder to insist upon strict compliance with any obligation hereunder, and no custom or practice of the Parties with regard to the terms and performance hereof shall constitute a waiver of the rights of such Party to demand full and exact compliance with the terms of the Agreement. No waiver of any provision or right hereunder will be valid unless it is in writing and signed by the Party giving such waiver. Unless otherwise expressly set forth in the Agreement, all remedies available to either Party for breach of the Agreement are cumulative and may be exercised concurrently or separately, are in addition to any other rights and remedies provided by law, and the exercise of any one remedy will not be deemed an election of such remedy to the exclusion of other remedies.

11.9          Severability.  If any provision of the Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of the Agreement shall remain in effect.

11.10       Counterparts; Facsimile Signatures.  The Agreement and any Order Form may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which will together constitute one and the same agreement. The Agreement and any Order Form shall be binding on the Parties through facsimile or scanned and emailed signatures, provided that such signatures shall be handwritten.

11.11       Entire Agreement.  The Agreement and its transaction documents, appendices, or any other Attachments constitutes the entire understanding of the Parties with respect to the subject matter herein.  The Agreement may not be amended or modified by a purchase order, invoice or similar form, conduct manifesting assent, or by electronic signature, and each Party is hereby put on notice that any individual purporting to amend or modify the Agreement by a purchase order, invoice or similar form, conduct manifesting assent or by electronic signature is not authorized to do so.  Notwithstanding any language to the contrary therein, no terms or conditions stated in Client’s purchase order or other order documentation (excluding Order Forms) shall be incorporated into or form any part of the Agreement, and all such terms or conditions shall be null and void.  Any and all previous agreements and understandings between the Parties regarding the subject matter hereof, whether written or oral, are superseded by the Agreement (except for any confidentiality agreements to which the Parties have duly executed, which shall remain in full force and effect for any discussions, transactions or exchanges of Confidential Information outside of the subject matter herein). GRH and Client agree that each will, from and after the date of the Agreement, execute and deliver such other documents and take such other actions as may reasonably be requested to effect the transactions contemplated hereunder.

11.12       Force Majeure.  GRH will be excused from performance for any unavailability of the Products or Services caused by circumstances beyond GRH’s reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of war or terror, epidemics, strikes or other labor problems, computer, telecommunications, Internet service provider or hosting facility failures or delays involving hardware, software or power systems not within GRH’s possession or reasonable control, and denial of service attacks (collectively, “Force Majeure Events”).


ATTACHMENT A

 

SETUP, MAINTENANCE AND SUPPORT

 

This Attachment A, Setup, Maintenance and Support Agreement (“Support Agreement”), is subject to the terms and conditions contained in the Agreement, which together describe the terms and conditions under which GRH will maintain and support Products for Client.

  1. Support Services.

1.1             GRH has no obligation to provide technical Support Services other than as set forth in this Support Agreement and a mutually agreed Order Form.

1.2             GRH provides support only for Incidents reported by Client to GRH using JIRA Service Desk. Client must first attempt to resolve the Incident prior to referral to GRH. GRH will respond to a reported Incident only after Client is not able to address the issue or perceived issue.

1.3             Support Services are provided to Client directly and are not provided to Client’s Customers or end-users.

1.4             Support Services are provided via remote access to Client’s site.

  1. Incident Notification.

2.1             When notifying GRH of an Incident using JIRA Service Desk, Client must provide:

  • The name of the Client personnel notifying GRH of the Incident;
  • A full description of the Incident, including its classification;
  • Contact details of the Client personnel that GRH is to notify of progress/resolution; and
  • Any other information reasonably required or requested by GRH.

 

2.2             During the Product license Term contained in Client’s Order Form, Client will be entitled at no extra charge to access to JIRA Service Desk or another Incident management system, online user guides, knowledge bases, self-help tools and/or any additional standard technical support resources that GRH provides to its other Clients who have subscriptions to the Ellie solution (collectively, “Technical Support”). The terms of conditions of Technical Support may be modified and updated from time to time in GRH’s sole discretion. All third party products included or sold with the Product are provided solely according to the warranty and other terms specified by the manufacturer of such third party products. GRH is not responsible to provide Support Services for third-party providers of any software, software framework, platform or operating system that is included in or with any Product. If Validic APIs are provided as part of the Product, then in the event of a breach of this Agreement that results in, or would be reasonably likely to result in the infringement or misappropriation of any of Validic’s intellectual property rights, Validic’s loss of ownership to such intellectual property, unauthorized disclosure of Valdic’s confidential information or material harm to Validic’s reputation, network or systems, Validic may exercise its rights as a third-party beneficiary of this Agreement to remedy such threats.

2.3             GRH MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE PRODUCT OR THIRD PARTY PRODUCTS, AND EXPRESSLY DISCLAIMS ANY WARRANTY OR CONDITION OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT WILL GRH BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, OR COVER DAMAGES ARISING OUT OF YOUR USE OF OR INABILITY TO USE THE PRODUCT OR ANY THIRD PARTY PRODUCTS.

  1. Exclusions.  Exclusions from Support Services include but are not limited to: (1) providing access to new products, programs, modules or features that GRH advertises or licenses separately from the Product; (2) support or fixes for errors that result from the unauthorized or improper use of the Product, including user controls and the CMS; (3) support or fixes for errors that do not materially affect the operation of the Products; (4) providing custom enhancements, features or modifications; (5) providing assistance for any of Client’s products or other third party products; (6) on-site support; (7) training; (8) Support to Client in the event of any meaningful use audit; or (9) support for any hardware or related equipment.


ATTACHMENT B

HIPAA BAA

 

This Attachment B, Business Associate Agreement (the “BAA”), is subject to the Agreement and is made by and between Client on behalf of itself and its subsidiary entities (in this BAA, the “Client Entity”) and iNetXperts Corp d/b/a Get Real Health on behalf of itself and its subsidiary entities (in this BAA, the “Business Associate”).  This BAA shall be applicable only in the event Business Associate meets, with respect to Client Entity, the definition of Business Associate set forth at 45 C.F.R. §160.103, or applicable successor provisions. If Business Associate does not meet the definition of Business Associate set forth at 45 C.F.R. §160.103, or applicable successor provisions, then this BAA shall not be applicable or effective. The existence of this BAA shall not in any way change the nature of the relationship of the parties with regard to whether Get Real health meets such definition of Business Associate.

RECITALS

  1. Business Associate provides certain services (“Services”) to Client Entity pursuant to the Agreement.
  2. Client Entity may be a “covered entity” as that term is defined under the Health Insurance Portability and Accountability Act of 1996 (as amended, and including 45 C.F.R. Part 160, Part 162 and Part 164 and any other regulations promulgated thereunder, all as of the effective date of this BAA, “HIPAA”).
  3. In connection with Business Associate providing Services to Client Entity, Business Associate may, on behalf of Client Entity, create, receive, maintain, and/or transmit certain Protected Health Information (as defined below) of patients, residents, or customers of Client Entity that is protected under HIPAA.
  4. Business Associate, to the extent that it creates, receives, maintains, and/or transmits Protected Health Information on behalf of Client Entity, is a “Business Associate” of Client Entity as that term is defined under HIPAA.
  5. In order to ensure that Client Entity, and, to the extent applicable, Business Associate, are in compliance with their respective obligations under HIPAA, the parties have agreed to enter into this BAA.

AGREEMENT

NOW, THEREFORE, in consideration of the mutual promises and covenants set forth in this BAA, the parties agree as follows:

  1. Definitions.  Unless otherwise defined in this BAA, capitalized terms shall have the same meanings as set forth in HIPAA, as applicable.

(a)              Breach.  For purposes of Section 3(g)(ii) of this BAA only, “Breach” shall have the meaning set forth in §164.402 (including all of its subsections) of HIPAA; with respect to all other uses of the word “breach” in this BAA (e.g., Section 5), the word “breach” shall have its ordinary contract meaning.

(b)             Designated Record Set.  “Designated Record Set” shall have the same meaning as the term “designated record set” in §164.501 of HIPAA.

(c)              Individual.  “Individual” shall have the same meaning as the term “individual” in §160.103 of HIPAA and shall include a person who qualifies as a personal representative in accordance with §164.502(g) of HIPAA.

(d)             Protected Health Information.  “Protected Health Information” (or “PHI”) shall have the same meaning as the term “protected health information” in §160.103 of HIPAA, limited to the information that Business Associate creates, receives, maintains and/or transmits on behalf of, Client Entity.

(e)              Required By Law.  “Required By Law” shall have the same meaning as the term “required by law” in §164.103 of HIPAA.

(f)              Secretary.  “Secretary” means the Secretary of the Department of Health and Human Services or his/her designee.

(g)              Security Incident.  “Security Incident” shall have the same meaning as the term “security incident” in §164.304 of HIPAA.

(h)             Subcontractor.  “Subcontractor” shall have the same meaning as the term “subcontractor” in §160.103 of HIPAA.

  1. Authorized Uses and Disclosures of PHI.  Business Associate shall use or disclose PHI only:

(a)              As permitted or required by this BAA and the Agreement to perform functions, activities or services for, or on behalf of Client Entity, provided such use or disclosure would not violate Subpart E of 45 C.F.R. Part 164 (including the minimum necessary standard set forth in §164.502(b) of HIPAA) or any applicable state law if done by Client Entity, except for the specific uses and disclosures set forth below in this Section 2(b), (c) and (e); or

(b)             Business Associate may use PHI for the proper management and administration of Business Associate or to carry out the legal responsibilities of Business Associate.

(c)              Business Associate may disclose PHI if such disclosure is necessary 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 it will remain confidential and be used or further disclosed only as required by law or for the purpose for which it was disclosed to such person, and the person agrees to notify Business Associate of any instances of which it is aware in which the confidentiality of the information has been breached; or

(d)             As required by law, provided to the extent permitted by law, upon a receipt of subpoena requesting PHI, inform Client Entity of such subpoena and afford Client Entity with an opportunity to move to quash such subpoena before disclosing such PHI; or

(e)              If requested by Client Entity in writing, Business Associate may use Protected Health Information to provide Data Aggregation services to Client Entity as permitted by §164.504(e)(2)(i)(B) of HIPAA; or

(f)              Business Associate may use PHI to report violations of law to appropriate Federal and State authorities, consistent with §164.502(j)(1) of HIPAA.

  1. Obligations of Business Associate regarding Uses or Disclosures of PHI.

(a)              Compliance with HIPAA.  Business Associate shall perform and comply with all the applicable obligations and requirements imposed upon Business Associates under HIPAA.

(b)             Agreements with Subcontractors.  Business Associate may permit Subcontractor to create, receive, maintain or transmit PHI in order to allow that Subcontractor to perform a function, activity, or service on behalf of Business Associate; provided that Business Associate shall enter into a written agreement with such Subcontractor that provides satisfactory assurances that the Subcontractor shall appropriately safeguard that information and that complies with HIPAA’s requirements for such agreements between Business Associates and Subcontractors that create, receive, maintain, and/or transmit PHI pursuant to which such Subcontractor agrees to comply with the requirements of HIPAA.  Any such agreement shall also require that Subcontractor shall comply with the same restrictions, conditions, and requirements that apply under this BAA to Business Associate with respect to such PHI.  If Business Associate becomes aware of a pattern or practice of activity of a Subcontractor that would constitute a material breach or violation of the written agreement between Business Associate and such Subcontractor, Business Associate shall take reasonable steps to cure such breach or terminate such written agreement with such Subcontractor and will promptly report such material breach by the Subcontractor to Client Entity in writing.

(c)              Mitigation of Harmful Effects.  Business Associate shall mitigate, to the extent reasonably 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 BAA.

(d)             Safeguards for Protecting PHI.

(i)              Business Associate shall not use or disclose PHI other than as permitted or required by this BAA or as Required by Law.

(ii)            Business Associate shall use appropriate safeguards and comply, where applicable, with Subpart C of 45 C.F.R. Part 164 of HIPAA to prevent unauthorized use or disclosure of the PHI, including but not limited to, appropriate policies and procedures, as are necessary to prevent the unauthorized use, disclosure, modification or destruction of PHI.

(iii)          Business Associate shall implement appropriate administrative, physical and technical safeguards to protect the confidentiality, integrity, and availability of any electronic PHI that it creates, receives, maintains or transmits to or on behalf of Client Entity as required by HIPAA, including compliance with the standards set forth in §§164.308, 164.310, 164.312 and 164.316 of HIPAA.

(iv)          Business Associate agrees not to electronically transmit or permit access to PHI unless such transmission or access is authorized by this BAA and the Agreement and further agrees that it shall only transmit or permit such access if such information is secured in a manner that is consistent with applicable law, including the Security Rule.

(e)              Recordkeeping and Access Requirements

(i)              Business Associate agrees to provide access, at the request of Client Entity in writing, to PHI in a Designated Record Set, to Client Entity to ensure Client Entity’s ability to comply with its obligations to provide Individuals access to and copies of PHI in accordance with §164.524 of HIPAA.

(ii)            Business Associate agrees to make any amendment(s) to PHI in a Designated Record Set that the Client Entity directs or agrees to pursuant to §164.526 of HIPAA, or take other measures (in Business Associate’s discretion) as necessary to satisfy Client Entity’s obligations under §164.526 of HIPAA.

(iii)          Business Associate shall make its internal practices, books, and records relating to the use and disclosure of Protected Health Information available to the Secretary in a time and manner designated by the Secretary, for purposes of the Secretary determining Client Entity’s compliance with HIPAA.

(f)              Accounting of Disclosures.

(i)              Business Associate shall document disclosures by Business Associate of Protected Health Information and information related to such disclosures as would be required for Client Entity to respond to a request by an Individual for an accounting of disclosures of Protected Health Information in accordance with §164.528 of HIPAA.

(ii)            Business Associate shall provide to Client Entity, within five (5) business days of a request by Client Entity, information collected in accordance with Section 3(e)(i) of this BAA, to permit Client Entity to respond to a request by an Individual for an accounting of disclosures of Protected Health Information in accordance with §164.528 of HIPAA.

(g)              Notifications.  Business Associate shall report to Client Entity any use or disclosure of PHI not provided for by this BAA of which it becomes aware as follows.

(i)              Security Incidents.  In the event of a Security Incident, Business Associate shall notify Client Entity in writing within ten (10) business days after Business Associate becomes aware of such Security Incident.

(ii)            Breaches of Unsecured Protected Health Information.

(A)           Business Associate shall establish reasonable systems to detect Breaches of Unsecured PHI and to provide appropriate training to its workforce regarding Business Associate’s policies and procedures pertaining to use and disclosure of PHI and the detection and reporting of Breaches of Unsecured PHI.

(B)           In the event of an unauthorized disclosure of PHI or following Business Associate’s discovery (as described in §164.410(a)(2) of HIPAA) of a Breach of Unsecured PHI, Business Associate shall notify Client Entity in writing within ten (10) business days of such Breach of the date of the Breach, and provide Client Entity with a report in accordance with HIPAA.

(h)          Minimum Necessary Standard.  For purposes of compliance with § 164.502(b) of HIPAA, in the case of the disclosure of Protected Health Information, the party (Client Entity or Business Associate) disclosing such information shall determine what constitutes the minimum necessary to accomplish the intended purpose of such disclosure.

(i)           Other Obligations. To the extent that Business Associate is, pursuant to this BAA or the Agreement, responsible to carry out an obligation of the Client Entity under HIPAA, Business Associate shall comply with the requirements of HIPAA that apply to the Client Entity in the performance of that obligation.

  1. Obligations of Client Entity.

(a)              Client Entity represents and warrants to Business Associate that it: (1) has included, and will include, in Client Entity’s Notice of Privacy Practices that Client Entity may disclose Protected Health Information for health care operations purposes; and (2) has obtained, and will obtain, from Individuals, any required consents, authorizations and other permissions necessary under applicable laws to enable Client Entity and Business Associate to fulfill their obligations under this BAA and the Agreement.

(b)             Client Entity shall promptly notify Business Associate in writing of any restrictions on the use and disclosure of PHI or changes in, revocation of, or permission by an Individual to use or disclose PHI about Individuals that Client Entity has agreed to, that could reasonably be expected to affect Business Associate’s ability to perform its obligations under this BAA or the Agreement.

  1. Term and Termination

(a)              Term.  This BAA shall become effective as of the effective date of the Agreement and terminate upon the earlier of (1) termination of all the Agreement or (2) termination of this BAA.

(b)             Termination.  In the event of either party’s material breach of this BAA, the non-breaching party may terminate this BAA upon ten (10) days prior written notice to the breaching party in the event the breaching party does not cure such breach to the reasonable satisfaction of the non-breaching party within such ten (10) day period.  In the event that cure of a breach under this Section 5(b) is not reasonably possible, the non-breaching party may immediately terminate this BAA.

(c)              Effect of Termination.  Upon termination of this BAA, Business Associate shall return or destroy, at Business Associate’s election, all PHI received from or on behalf of Client Entity then maintained by Business Associate, and shall retain no copies of such PHI. If the  return or destruction of all PHI is not feasible (as determined by Business Associate), Business Associate shall:

(i)              Retain only that PHI that is necessary for Business Associate to continue its proper management and administration or to carry out its legal responsibilities;

(ii)            Return or destroy, at Business Associate’s election, to Client Entity the remaining PHI that Business Associate still maintains in any form;

(iii)          Continue to use appropriate safeguards and comply with Subpart C of 45 C.F.R. Part 164 with respect to electronic PHI to prevent use or disclosure of the PHI, other than as provided for in this Section, for as long as Business Associate retains the PHI;

(iv)          Not use or disclose the PHI retained by Business Associate other than for the purposes for which such PHI was retained and subject to the same conditions set forth in Section 2(b) and (c) of this BAA that applied prior to termination; and

(v)            Return or destroy, at Business Associate’s election, the PHI retained by Business Associate when it is no longer needed by Business Associate for its proper management and administration or to carry out is legal responsibilities.

  1. Miscellaneous.

(a)              Ownership of Data.  Business Associate acknowledges and agrees that neither it, nor its agents or Subcontractors, shall assert any ownership claims relating to any and all PHI obtained by Business Associate, its agents or its Subcontractors, on behalf of Client Entity.

(b)             Changes to Laws.  If HIPAA is amended, or if new laws and/or regulations affecting the terms required to be included in business associate agreements between covered entities and business associates are promulgated, and Business Associate determines that modifications to the terms of this BAA are required as a result, then Business Associate will update this BAA without notice to Client Entity.

(c)              Survival.  The obligations of Business Associate under Sections 3 and 5 of this BAA shall survive any termination of this BAA.

(d)             Interpretation.  Any ambiguity in this BAA shall be resolved to permit compliance by the parties with HIPAA.

(e)              No Third Party Beneficiary.  Nothing in this BAA is intended, nor shall be deemed, to confer any benefits on any third party except as otherwise stated in the Agreement.