MEDICAL PRACTICE PLATFORM SERVICES AGREEMENT
Last Updated 1/11/2023
This Medical Practice Platform Services Agreement together with any applicable Orders or details confirmed in a Membership Plan (each as defined below) collectively constitute a binding agreement (the “Agreement“) between Exact Healthcare, Inc., a Delaware corporation (“Exact Healthcare“), and you or the legal entity you represent (“Customer“). The “Effective Date” of this Agreement shall be the earlier of (i) Customer’s acceptance of the terms of this Agreement by clicking on the “Create Account” button, or (ii) Customer’s use of the Exact Healthcare Services.
PLEASE READ THIS AGREEMENT CAREFULLY. THIS AGREEMENT GOVERNS YOUR USE OF THE EXACT HEALTHCARE SERVICE(S). BY CLICKING ON THE “CREATE ACCOUNT” BUTTON, COMPLETING THE REGISTRATION PROCESS OR ACCESSING OR USING ANY OF THE EXACT HEALTHCARE SERVICE(S), YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THIS AGREEMENT, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH EXACT HEALTHCARE, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THE AGREEMENT PERSONALLY OR ON BEHALF OF THE ENTITY YOU HAVE NAMED AS THE USER, AND TO BIND THAT ENTITY TO THE AGREEMENT. THE TERM “CUSTOMER” REFERS TO THE INDIVIDUAL OR LEGAL ENTITY, AS APPLICABLE, IDENTIFIED AS THE USER WHEN YOU REGISTERED FOR THE SERVICES. IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, YOU SHALL NOT ACCESS OR USE THE EXACT HEALTHCARE SERVICES.
1. DEFINITIONS. In addition to terms defined in the body of this Agreement, as used in this Agreement:
1.1 ”Access Protocols” means the passwords, access codes, technical specifications, connectivity standards or protocols, or other relevant procedures, as may be necessary to allow Customer or any Authorized Users to access the Exact Healthcare Service.
1.2 ”Authorized User” means each of Customer’s employees, agents, and independent contractors who are provided user names and passwords and permitted hereunder to access the Exact Healthcare Service pursuant to Customer’s rights under this Agreement.
1.3 ”Customer Data” means any data, information, content, or materials supplied or made available by or on behalf of Customer and used in connection with the Exact Healthcare Service. For the avoidance of doubt, Customer Data expressly excludes Member Data.
1.4 ”Documentation” means the technical materials provided or made available by Exact Healthcare to Customer in hard copy or electronic form that describe the features, functionality or operation of the Exact Healthcare System.
1.5 ”Error” means a reproducible failure of the Exact Healthcare Service to substantially conform to the Documentation.
1.6 ”Exact Healthcare Service(s)” means the platform designed to facilitate Customer’s concierge medical memberships made available through the Exact Healthcare System, as offered by Exact Healthcare as a software-as-a-service subscription solution, and the related support services provided by Exact Healthcare hereunder.
1.7 ”Exact Healthcare System” means the technology, including software and Website, used by Exact Healthcare to deliver the Exact Healthcare Service to Customer.
1.8 ”Exact Healthcare Technology” means the Exact Healthcare Service, Exact Healthcare System, Documentation, results of Professional Services, all software and all Exact Healthcare proprietary information and technology used by Exact Healthcare or provided to Customer in connection with the Exact Healthcare Service, and Aggregated and Anonymous Data (as the foregoing are defined herein).
1.9 ”Intellectual Property Rights” means any and all now known or hereafter existing (a) rights associated with works of authorship, including copyrights, mask work rights, and moral rights; (b) trademark or service mark rights; (c) trade secret rights; (d) patents, patent rights, and industrial property rights; (e) layout design rights, design rights, and other proprietary rights of every kind and nature other than trademarks, service marks, trade dress, and similar rights; and (f) all registrations, applications, renewals, extensions, or reissues of the foregoing, in each case in any jurisdiction throughout the world.
1.10 ”Members” means any individuals, including patients of Customer, served and authorized by Customer to access and use the Member Application who have agreed to Exact Healthcare’s corresponding terms and conditions (the “Member Terms of Service”) prior to access and use of the Member Application.
1.11 ”Member Data” means data uploaded or transmitted by or on behalf of an Member to the Member Application.
1.12 ”Member Application” means the Member-facing portal or application made available to Members by Exact Healthcare in connection with the Exact Healthcare Services, which may be branded by Customer if agreed by the parties.
1.13 ”Performance Data” means any analytics or similar data collected, generated or processed by Exact Healthcare based on Customer’s access to and use of the Exact Healthcare Service.
1.14 ”Order” means any ordering document signed or acknowledged by both parties in writing that references this Agreement.
1.15 ”Website” means this website and any other websites of Exact Healthcare, its affiliates or agents.
2. EXACT HEALTHCARE SERVICE.
2.1 Subscription to the Exact Healthcare Service. Subject to the terms and conditions of this Agreement , Exact Healthcare hereby grants to Customer, during the term of this Agreement, a non-sub-licensable, non-transferable, non-exclusive right, solely for Customer’s internal use, to: (a) access and use the Exact Healthcare Service; (b) internally use and reproduce the Documentation; and (c) grant Authorized Users the right to access and use the Exact Healthcare Service.
2.2 Access. In connection with creating an account on the Exact Healthcare Service, Customer may create one or more membership plans (each a “Membership Plan, collectively, the “Membership Plans”). Each Membership Plan will designate Authorized Users (as defined below), and include details on pricing, and other relevant information to the plans Customer will offer via the Membership Application. Exact Healthcare will provide Customer with access to the Exact Healthcare Service for the duration of each Membership Plan. Customer may authorize additional users as Authorized Users of the Exact Healthcare Service. Customer and all Authorized Users shall use commercially reasonable efforts to prevent unauthorized access to, or use of, the Exact Healthcare Service, and notify Exact Healthcare promptly of any such unauthorized use known to Customer.
2.3 Authorized Users. Subject to any limitations set forth in this Agreement or an applicable Membership Plan, Customer may permit any Authorized Users to access and use the features and functions of the Exact Healthcare Service as contemplated by this Agreement. Each Authorized User will be assigned a unique user identification name and password (“User ID”) for access to and use of the Exact Healthcare Service. User IDs cannot be shared or used by more than one Authorized User at a time.
2.5 Restrictions and Covenants. Customer will not, and will not permit any Authorized User or third party to: (a) use the Exact Healthcare Service to harvest, collect, gather or assemble information or data regarding other (i.e., non-Customer) Exact Healthcare users, including Members, without both the user’s and Exact Healthcare’s consent; (b) access or copy any data or information of other Exact Healthcare users without their consent; (c) knowingly interfere with or disrupt the integrity or performance of the Exact Healthcare Service or the data contained therein; (d) harass or interfere with another Exact Healthcare user’s use and enjoyment of the Exact Healthcare Service or a Members’ use and enjoyment of messages or content received in connection with the Exact Healthcare Service; (e) reverse engineer, disassemble or decompile any component of the Exact Healthcare System; (f) interfere in any manner with the operation of the Exact Healthcare Service or the Exact Healthcare System or the hardware and network used to operate the Exact Healthcare Service; (g) copy or make derivative works based on any part of the Exact Healthcare System; (h) directly sublicense any of Customer’s rights under this Agreement, or otherwise use the Exact Healthcare Service for the benefit of a third party or to operate a service bureau; (i) Use the Exact Healthcare Service as a medical record repository or to deliver medical diagnoses, conduct medical coding, or submit claims or requests for reimbursement from any third-party payor; or (j) otherwise use the Exact Healthcare Service in any manner that exceeds the scope of use permitted under this Agreement. Customer acknowledges and agrees that the Exact Healthcare Service will not be used, and is not licensed for use, in connection with any of Customer’s time-critical or mission-critical functions. Customer represents, warrants and covenants that: (x) Customer’s use of the Exact Healthcare Service will comply with all applicable laws and regulations, including the CAN-SPAM Act of 2003,the Telephone Consumer Protection Act of 1991 and the terms of this Agreement; (y) Customer has obtained all rights, licenses, consents and releases that are necessary to display the Customer Data and otherwise make its services available to Members via the Exact Healthcare Service; and (z) Customer will not use the Exact Healthcare Service to deliver or operate emergency support lines.
2.6 Support. Subject to the terms of this Agreement, Exact Healthcare shall use commercially reasonable efforts to maintain the security and availability of, and to correct Errors in, the Exact Healthcare Service.
3. EXACT HEALTHCARE PROPRIETARY RIGHTS.
3.1 Generally. Customer acknowledges that as between the parties, Exact Healthcare retains all right, title and interest (including all Intellectual Property Rights) in and to the Exact Healthcare Technology, and that other than as expressly set forth in this Agreement, no license or other rights in the Exact Healthcare Technology are granted to Customer.
3.2 Third Party Software. The Exact Healthcare Service may utilize, contain or otherwise use certain third-party software (collectively, the “Third-Party Software”). Third-Party Software may be subject to additional licensing terms, which Exact Healthcare may deliver or make available from time to time to Customer, which are incorporated herein by reference, and which supersede any contradictory terms in this Agreement.
3.3 Feedback. From time to time Customer or its agents may provide suggestions, enhancement requests, recommendations, corrections, or other feedback to Exact Healthcare with respect to the Exact Healthcare Technology (“Feedback”). Customer acknowledges and agrees that all Feedback and all Intellectual Property Rights therein are the exclusive property of Exact Healthcare, and hereby assigns to Exact Healthcare on an exclusive basis all right, title and interest thereto.
3.4 Performance Data. Performance Data will be owned by Exact Healthcare, and Exact Healthcare may collect and use such Performance Data for any lawful purpose, provided that, Exact Healthcare will only disclose Performance Data to third parties, including its subcontractors, for the purposes of facilitating the Exact Healthcare Service; for internal purposes, including to improve its products and services; to perform its other obligations and exercise its rights under this Agreement; or as otherwise required by law.
4. PROFESSIONAL SERVICES. Where the parties have agreed to Exact Healthcare’s provision of integration, design, development, operational, marketing, and other professional services (“Professional Services”), they will enter into an Order specifically governing the provision of the Professional Services. To the extent that a conflict arises between the terms and conditions of the Order and the terms of this Agreement, the terms and conditions of this Agreement will govern. The Order will include: (i) a description of the Professional Services; (ii) the schedule for the performance of the Professional Services; (iii) the ownership rights with respect to the work product, if applicable, resulting from the performance of the Professional Services (and if no such provision is provided, all ownership rights are and shall be vested in Exact Healthcare immediately); (iv) Exact Healthcare’s then-current rates for the performance of the Professional Services; and (v) and any other obligations or covenants as required.
5. PAYMENTS AND FEES.
5.1 Member Subscriptions. Customers shall charge to Members a recurring membership subscription fee in an amount to be determined by Customer, which can be set in “Subscription Plans” section of Customer’s online account. Exact Healthcare shall collect payment from Member on behalf of Customer through the Member Application. Exact Healthcare will provide, through the Exact Healthcare Service, a means by which appropriate consents for recurring memberships may be obtained by Customer. Exact Healthcare shall also provide a mechanism through which the Exact Healthcare Service for Members to immediately cancel their subscriptions in accordance with applicable laws. Notwithstanding the forgoing, Customer is responsible for compliance with all applicable laws pertaining to recurring subscriptions in connection with its provision of membership services to Members, including Federal, State, and local laws, rules, regulations, and policies, which may change from time to time. Exact Healthcare makes no representations or warranties with respect to compliance with such laws through the Exact Healthcare Service. Exact Healthcare may provide guidance to Customers regarding applicable Federal laws or regulations, but it remains at all times Customer’s ongoing responsibility to ensure compliance with all relevant laws, rules, regulations, and policies relating to Customer’s use of Exact Healthcare Services and offering Exact Healthcare Services to its Members. Furthermore, it remains at all times Customer’s responsibility to ensure that offering Exact Healthcare Services to its Members does not violate any other obligations or contracts Customer has, including with commercial or governmental payors. Member payments shall be processed by Exact Healthcare (via Exact Healthcare’s third-party payment processor) in accordance with the provisions of Section 5.2. Exact Healthcare reserves the right to determine payment methods available to Members, such as payment via credit, debit or prepaid card, or via a linked bank account. Customer agrees and understands that Exact Healthcare retains the right, in its sole discretion, to hold any subscription fees, or other funds, processed on behalf of Member based on Exact Healthcare’s reasonable belief that there is a risk associated with Customer’s use of the Exact Healthcare Services or any payments processed on behalf of Customer pursuant to this Agreement. Any hold placed on funds pending settlement to Customer will be lifted when the matter is resolved to the satisfaction of Exact Healthcare. In the event of any chargeback, reversal, or refund initiated by Member with respect to a Member subscription, Exact Healthcare may request additional information from you to assist in addressing the dispute. Customer agrees to cooperate fully and provide all information requested by Exact Healthcare in connection with the matter, provided that no information prohibited from disclosure by applicable law shall be shared with Exact Healthcare. Customer agrees and understands that any chargebacks, refunds, reversals, or other similar charges incurred by Exact Healthcare in connection with the processing of Member Subscriptions shall be offset against Customer Fees, as defined and described in Section 5.2.
5.2 Customer Appointment of Exact Healthcare as Payments Agent. Customer appoints Exact Healthcare as its limited payments agent for the sole purpose of receiving, holding and settling payments due to Customer for membership subscription fees paid by Members. Exact Healthcare will settle payments that are actually received by Exact Healthcare to Customer, less any amounts owed to Exact Healthcare, including fees and other obligations, subject to this Agreement and as set forth in the applicable Membership Plan (the “Customer Fees”). Customer agrees that a payment received by Exact Healthcare, on behalf of Customer, satisfies the Member’s obligation to make payment to Customer, regardless of whether Exact Healthcare actually settles such payment to Customer. If Exact Healthcare does not settle any such payments as described in this Agreement to Customer, such Customer will have recourse only against Exact Healthcare and not the Member, as payment is deemed made by Member to Customer upon constructive or actual receipt of funds by Exact Healthcare. In accepting this appointment as Customer’s limited payments agent, Exact Healthcare assumes no liability for any acts or omission by Customer, and Customer understands that Exact Healthcare’s obligation to settle funds to Customer is subject to and conditional upon the Member’s actual payment.
5.3 Fees Owed by Customer To Exact Healthcare. The fees owed by Customer to Exact Healthcare will be equal to a percentage of the received Customer Fees. The percentage figure is viewable on Customer’s profile on the Exact Healthcare System. The percentage can be changed by Exact Healthcare upon thirty (30) days written notice to Customer.
5.4 Accounting; Payments to Customer. Unless otherwise agreed between the parties, on a monthly basis, Exact Healthcare shall submit to Customer an accounting of all Customer Fees processed on behalf of Customer, and shall, pursuant to the terms of an applicable Membership Plan, deliver payment to Customer via check or any other payment method that Exact Healthcare makes available (as selected by Customer). Customer will immediately notify Exact Healthcare of any change in Customer’s mailing address for payments hereunder. Customer is responsible for the timely depositing of any check payment received from Exact Healthcare. Customer shall notify Exact Healthcare immediately of any check not received or that is otherwise believed to be lost or stolen. Customer agrees and understands that it shall be liable for any stop payment fees or other costs incurred by Exact Healthcare in the event of a check that is lost or stolen after delivery to Customer.
5.5 Taxes. The fees are exclusive of, and Customer will pay, all sales, use, excise, income, and other taxes and applicable export and import fees, customs duties and similar charges that may be levied upon Customer in connection with this Agreement, except for employment taxes for Exact Healthcare employees and taxes based on Exact Healthcare’s net income.
6. CUSTOMER PROPRIETARY RIGHTS.
6.1 Customer Marks. Solely to the extent necessary to provide the Exact Healthcare Service and to perform Professional Services, Customer hereby grants to Exact Healthcare a term-limited, non-exclusive, worldwide, royalty-free and fully paid license to access, use, reproduce, modify and display the Customer’s trademarks, logos and service marks (“Customer Marks”), subject to Customer’s prior written approval on a periodic basis (it being understood that approval shall be deemed given for general use cases, and that individual approval for each similar use is not required). Customer owns all rights in and to the Customer Marks.
6.2 Customer Data.
(a) Ownership; License. The Customer Data hosted by Exact Healthcare as part of the Exact Healthcare Service, and all worldwide Intellectual Property Rights therein, is the exclusive property of Customer. Customer hereby grants to Exact Healthcare a non-exclusive, worldwide, royalty-free and fully paid license to access, use, reproduce, modify and display the Customer Data for the purposes of (a) providing, training and improving the Exact Healthcare Technology, (b) generating Aggregated and Anonymous Data (as defined below), (c) exercising its rights and obligations under this Agreement, and (d) complying with its obligations under law. All rights in and to the Customer Data not expressly granted to Exact Healthcare in this Agreement are reserved by Customer.
(b) Aggregate and Anonymous Data. Notwithstanding anything to the contrary herein, Customer agrees that Exact Healthcare may obtain and use Customer Data and Performance Data to create aggregated, anonymized or deidentified data or information of similar form that does not permit the identification of Customer or any individual or entity (the “Aggregated and Anonymous Data”). Customer further agrees that Exact Healthcare shall own such Aggregated and Anonymous Data and may retain, use and disclose such data for any lawful business purpose, including to improve its products and services.
(c) Data Representations. Customer represents and warrants that any Customer Data hosted by Exact Healthcare as part of the Exact Healthcare Service shall not (a) infringe, misappropriate or violate any Intellectual Property Rights, publicity/privacy rights, laws or regulations; (b) be deceptive, defamatory, obscene, pornographic or unlawful; (c) contain any viruses, worms or other malicious computer programming codes intended to damage, surreptitiously intercept or expropriate any system, data or personal or personally identifiable information; (d) otherwise violate the rights of a third party; or (e) other than PHI (as defined below) or other individually identifiable health information governed by applicable law pertaining to health information, consist of data regulated by PCI, GDPR, or any other regulations or privacy laws pertaining to sensitive information. Exact Healthcare is not obligated to back up any Customer Data. Customer is solely responsible for creating backup copies of any Customer Data at Customer’s sole cost and expense. Customer agrees that any use of the Exact Healthcare Service contrary to or in violation of the representations and warranties of Customer in this section constitutes unauthorized and improper use of the Exact Healthcare Service.
(d) Customer Responsibility for Data and Security. Customer and its Authorized Users shall have access to the Customer Data and shall be responsible for all changes to and/or deletions of Customer Data and the security of all passwords and other Access Protocols required in order the access the Exact Healthcare Service. Customer is encouraged to make its own back-ups of the Customer Data. Customer shall have the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data.
7. MUTUAL REPRESENTATIONS AND WARRANTIES. Each party represents and warrants that: (a) it has the requisite power and authority to enter into, deliver and perform the obligations under this Agreement; (b) this is a valid and legally binding Agreement enforceable against it and its business; (c) by entering into this Agreement, neither party is violating or in non-compliance with any other contractual or legal obligations the party has.
8. LIMITED WARRANTY; DISCLAIMER.
8.1 Exact Healthcare warrants to Customer that, when used as permitted by Exact Healthcare and in accordance with the Documentation, the Exact Healthcare Service will operate materially free from Errors during the term of the Agreement. Customer’s exclusive remedy, and Exact Healthcare’s sole obligation, for breach of the foregoing warranty during the term hereof shall be Exact Healthcare’s efforts to correct Errors pursuant to Section 2.6 herein.
8.2 EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE EXACT HEALTHCARE SERVICE, EXACT HEALTHCARE SYSTEM, AND DOCUMENTATION ARE PROVIDED “AS IS,” “AS AVAILABLE,” AND WITH ALL FAULTS, AND EXACT HEALTHCARE AND ITS AFFILIATES, SUPPLIERS, CONTRACTORS, AND LICENSORS HEREBY DISCLAIM ALL OTHER WARRANTIES, REPRESENTATIONS, OR CONDITIONS, RELATING TO THE EXACT HEALTHCARE SERVICE, EXACT HEALTHCARE SYSTEM, AND DOCUMENTATION WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. EXACT HEALTHCARE DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE EXACT HEALTHCARE SERVICE AND THE EXACT HEALTHCARE SYSTEM SHALL BE UNINTERRUPTED, SECURE, OR ERROR-FREE. SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR CONDITIONS OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO CUSTOMER.
8.3 CUSTOMER ACKNOWLEDGES AND AGREES THAT THE EXACT HEALTHCARE SERVICES AND PROFESSIONAL SERVICES DO NOT, AND ARE NOT INTENDED TO, PROVIDE MEDICAL DIAGNOSIS, ADVICE OR TREATMENT. CUSTOMER FURTHER ACKNOWLEDGES AND AGREES THAT EXACT HEALTHCARE IS NOT RESPONSIBLE FOR, AND EXPRESSLY DISCLAIMS, ANY LIABILITY IN CONNECTION WITH OR RELATED TO (I) MEDICAL SERVICES RENDERED BY CUSTOMER TO END USERS OR ANY OTHER THIRD PARTIES, (II) ANY MEDICAL OUTCOMES OF END USERS OR ANY OTHER THIRD PARTIES, AND/OR (III) THE SUBMISSION OF REQUESTS FOR PAYMENT TO, OR THE RECEIPT OF PAYMENTS FROM, THIRD PARTY PAYORS FOR SUCH MEDICAL OR OTHER TREATMENT SERVICES. CUSTOMER UNDERSTANDS THAT THE EXACT HEALTHCARE SERVICE IS NOT, AND IS NOT INTENDED TO BE USED AS, A MEDICAL RECORDS REPOSITORY. CUSTOMER IS SOLELY RESPONSIBLE FOR MEETING THE MEDICAL RECORDS RETENTION REQUIREMENTS APPLICABLE TO CUSTOMER. CUSTOMER AGREES THAT CUSTOMER WILL NOT USE, OR ATTEMPT TO USE, THE EXACT HEALTHCARE SERVICE FOR ANY MEDICAL RECORDS RETENTION OR OTHER SIMILAR PURPOSES.
9. LIMITATION OF LIABILITY.
9.1 Generally. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY NOR TO ANY THIRD PARTIES FOR LOST PROFITS OR LOST DATA OR FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, RELIANCE OR PUNITIVE LOSSES OR DAMAGES HOWSOEVER ARISING UNDER THIS AGREEMENT OR IN CONNECTION WITH THE EXACT HEALTHCARE SERVICE, WHETHER UNDER CONTRACT, TORT OR OTHERWISE, WHETHER FORESEEABLE OR NOT, AND REGARDLESS WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY THAT SUCH DAMAGES MAY ARISE, OCCUR OR RESULT. IN NO EVENT SHALL EXACT HEALTHCARE BE LIABLE FOR PROCUREMENT COSTS OF SUBSTITUTE PRODUCTS OR SERVICES. EACH PARTY’S AGGREGATE CUMULATIVE LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT WILL IN NO EVENT EXCEED THE AMOUNT OF FEES PAID BY CUSTOMER UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM (“LIABILITY CAP”). NOTWITHSTANDING THE FOREGOING, A FIVE HUNDRED THOUSAND DOLLAR ($500,000) SUPER CAP (“SUPER CAP”) APPLIES TO ANY LIABILITY ARISING FROM EITHER PARTY’S BREACH OF THE BAA. FOR PURPOSES OF CLARITY, AMOUNTS PAID UNDER THE SUPER CAP SHALL ALSO COUNT TOWARDS THE LIABILITY CAP. THE PARTIES AGREE THAT THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION SHALL SURVIVE AND CONTINUE IN FULL FORCE AND EFFECT DESPITE ANY FAILURE OF CONSIDERATION OR OF AN EXCLUSIVE REMEDY. THE PARTIES ACKNOWLEDGE THAT THIS AGREEMENT HAS BEEN ENTERED INTO IN RELIANCE UPON THESE LIMITATIONS OF LIABILITY AND THAT ALL SUCH LIMITATIONS FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.
9.2 Basis of the Bargain. THESE LIMITATIONS OF LIABILITY WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THE PARTIES ACKNOWLEDGE THAT THE PRICES HAVE BEEN SET AND THE AGREEMENT ENTERED INTO IN RELIANCE UPON THESE LIMITATIONS OF LIABILITY AND THAT ALL SUCH LIMITATIONS FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. THE PROVISIONS OF THIS AGREEMENT ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN EXACT HEALTHCARE AND CUSTOMER. EXACT HEALTHCARE’S FEES FOR THE SERVICES RENDERED HEREUNDER REFLECT THIS ALLOCATION OF RISK AND THE LIMITATION OF LIABILITY SPECIFIED HEREIN.
9.3 Exclusions. THE LIMITATIONS OF LIABILITY IN THIS SECTION DO NOT APPLY TO: (A) A BREACH BY CUSTOMER OF SECTION 2; (B) CUSTOMER’S INDEMNIFICATION OBLIGATIONS; OR (C) WILLFUL MISCONDUCT.
10.1 ”Confidential Information” means any nonpublic information of a party (the “Disclosing Party“), whether disclosed orally or in written or digital media, that is identified as “confidential” or with a similar legend at the time of such disclosure or that the receiving party (the “Receiving Party“) knows or should have known is the confidential or proprietary information of the Disclosing Party. For the avoidance of doubt, the Exact Healthcare Service, Exact Healthcare System, and Documentation, and all enhancements and improvements thereto will be considered Confidential Information of Exact Healthcare. Information will not constitute the other party’s Confidential Information if it (i) is already known by the Receiving Party without obligation of confidentiality; (ii) is independently developed by the Receiving Party without access to or use of the Disclosing Party’s Confidential Information; (iii) is publicly known without breach of this Agreement; or (iv) is lawfully received from a third party without obligation of confidentiality. The Receiving Party will not use or disclose any Confidential Information except as expressly authorized by this Agreement and will protect the Disclosing Party’s Confidential Information using the same degree of care that it uses with respect to its own confidential information, but in no event less than reasonable care. The Receiving Party will take prompt and appropriate action to prevent unauthorized use or disclosure of the Disclosing Party’s Confidential Information. In addition, the Receiving Party may disclose Confidential Information to the extent that such disclosure is necessary for the Receiving Party to enforce its rights under this Agreement or is required by law or by the order of a court or similar judicial or administrative body, provided that (to the extent legally permissible) the Receiving Party promptly notifies the Disclosing Party in writing of such required disclosure and cooperates with the Disclosing Party if the Disclosing Party seeks an appropriate protective order.
10.2 BAA. To the extent that the Customer provides Exact Healthcare with any protected health information (as defined in as defined in 45 C.F.R. 160.103) (“PHI“) under this Agreement, the parties’ use and disclosure of such PHI shall be governed by the Business Associate Agreement, attached hereto as Exhibit A (“BAA“), which is concurrently entered into herewith and fully incorporated herein. PHI shall not be considered Confidential Information under this Agreement and will be treated solely in accordance with the BAA. For the avoidance of doubt, to the extent that Customer is not a “covered entity” under HIPAA, the parties agree that Customer is not providing Exact Healthcare with PHI and, therefore, the BAA shall not apply.
11.1 By Exact Healthcare. Exact Healthcare will defend at its expense any suit brought against Customer, and will pay any settlement Exact Healthcare makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim by any third party alleging that the permitted use of the Exact Healthcare Service infringes, misappropriates or violates any third party Intellectual Property Rights. If any portion of the Exact Healthcare Service or the Exact Healthcare System becomes, or in Exact Healthcare’s opinion is likely to become, the subject of a claim of infringement, Exact Healthcare may, at Exact Healthcare’s option: (a) procure for Customer the right to continue using the Exact Healthcare Service; (b) replace the Exact Healthcare Service with non-infringing software or services which do not materially impair the functionality of the Exact Healthcare Service; (c) modify the Exact Healthcare Service so that it becomes non-infringing; or (d) terminate this Agreement and refund any fees actually paid by Customer to Exact Healthcare for the remainder of the term then in effect, and upon such termination, Customer will immediately cease all use of the Exact Healthcare Service, Exact Healthcare System, and Documentation. Notwithstanding the foregoing, Exact Healthcare shall have no obligation under this section or otherwise with respect to any infringement claim based upon (x) any use of the Exact Healthcare Service not in accordance with this Agreement or as specified in the Documentation; (y) any use of the Exact Healthcare Service in combination with other products, equipment, software or data not supplied by Exact Healthcare; or (z) any modification of the Exact Healthcare Service by any person other than Exact Healthcare or its authorized agents (collectively, “Exclusions“). This Section states Exact Healthcare’s entire liability and Customer’s sole and exclusive remedy for the claims and actions described herein.
11.2 By Customer. Customer will defend at its expense any suit brought against Exact Healthcare, and will pay any settlement Customer makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim by any third party arising out of or relating to: (a) an Exclusion; (b) Customer’s breach of contract (including contracts with third party payors) or noncompliance with laws, rules, regulations, or agency policies or decisions; and (c) any claims by Members, including but not limited to claims relating to Customer’s provision of medical services to Members, or claims related to Exact Healthcare’s permitted use of Customer Data (other than to the extent resulting from Exact Healthcare’s breach of this Agreement). This Section sets forth Customer’s entire liability and Exact Healthcare’s sole and exclusive remedy for the claims and actions described herein.
11.3 Procedure. Any party that is seeking to be indemnified under the provisions of this Section (an “Indemnified Party“) must (a) promptly notify the other party (the “Indemnifying Party“) in writing of any third-party claim, suit, or action for which it is seeking an indemnity hereunder, (b) give the Indemnifying Party sole control over the defense of such claim, suit or action and any related settlement negotiations, and (iii) cooperating and, at Indemnifying Party’s reasonable request and expense, assisting in such defense.
12. TERM AND TERMINATION
12.1 Term. This Agreement is effective as of the Effective Date and will remain in effect until terminated in accordance with this Agreement or upon the expiration of all Membership Plans (whichever occurs first) (the “Term“). The Exact Healthcare Service is made available to Customer on a subscription basis. Each Membership Plan begins on the date such Membership Plan is created, and continues until such Membership Plan is terminated as set forth herein.
12.2 Termination. Customer may terminate this Agreement at any time upon sixty (60) days’ written notice to Exact Healthcare. Either party may terminate this Agreement immediately upon notice to the other party if the other party materially breaches this Agreement, and such breach remains uncured more than thirty (30) days after receipt of written notice of such breach.
12.3 Effect of Termination. Upon termination or expiration of this Agreement for any reason: (a) all rights and obligations of both parties, including all licenses granted hereunder, shall immediately terminate; (b) any amounts owed to Exact Healthcare under this Agreement will become immediately due and payable; and (c) each party will return to the other all property (including any Confidential Information and Customer Data) of the other party. The sections and subsections titled Definitions, Restrictions and Covenants, Exact Healthcare Proprietary Rights, Fees and Expenses; Payment, Customer Proprietary Rights (excluding any term-limited license grants), Mutual Representations and Warranties, Limited Warranty; Disclaimer, Limitation of Liability, Confidentiality, Indemnification, Effect of Termination, and Miscellaneous, and any other provisions which should by their nature survive expiration or termination, will survive expiration or termination of this Agreement for any reason. During the period commencing on the effective date of any termination or expiration of this Agreement and ending thirty (30) calendar days thereafter, Exact Healthcare will use commercially reasonable efforts to export Customer Data contained in the Exact Healthcare System and will provide such Customer Data to Customer, upon Customer’s request.
13. MARKETING; PUBLICITY. Customer agrees that (in addition to the express license granted above) Exact Healthcare may use the Customer Marks, subject to Customer’s then-current trademark usage guidelines, in Exact Healthcare’s marketing materials or communications (including, but not limited to, Exact Healthcare Website and in Exact Healthcare’s marketing presentations) for the sole purpose of indicating Customer as a customer of the Exact Healthcare Service. Neither party will issue a press release announcing its relationship with the other party without the other party’s prior approval, not to be unreasonably withheld or delayed. Subject to the terms and conditions of this Agreement, Customer hereby grants to Exact Healthcare a non-exclusive and limited license to use and publicly display Customer’s logo as set forth in this Section.
14.1 Governing Law and Venue. This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of Delaware without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction. Customer hereby expressly consents to the personal jurisdiction and venue in the state and federal courts for the county in which Exact Healthcare’s principal place of business is located for any lawsuit filed there against Customer by Exact Healthcare arising from or related to this Agreement. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Customer shall always comply with all international and domestic laws, ordinances, regulations, and statutes that are applicable to its purchase and use of the Exact Healthcare Service, Exact Healthcare System or Documentation.
14.2 Export. Customer agrees not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from Exact Healthcare, or any products utilizing such data, in violation of the United States export laws or regulations.
14.3 Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
14.4 Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
14.5 No Assignment. Customer shall not assign, subcontract, delegate, or otherwise transfer this Agreement, or its rights and obligations herein, without obtaining the prior written consent of Exact Healthcare, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void; provided, however, that Customer may assign this Agreement in connection with a merger, acquisition, reorganization or sale of all or substantially all of its assets, or other operation of law, without the consent of the other party. The terms of this Agreement shall be binding upon the parties and their respective successors and permitted assigns.
14.6 Force Majeure. Exact Healthcare will not be liable hereunder by reason of any failure or delay in the performance of its obligations under this Agreement on account of strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, governmental action, labor conditions, earthquakes, material shortages or any other cause that is beyond the reasonable control of Exact Healthcare.
14.7 Independent Contractors. Customer’s relationship to Exact Healthcare is that of an independent contractor, and, with the exception of the limited payments agency established by Section 5.2, neither party is an agent or partner of the other. Customer will not have, and will not represent to any third party that it has, any authority to act on behalf of Exact Healthcare.
14.8 Notices. All notices or other communications required or permitted under this Agreement will be in writing to the other party at the address listed on the signature page and will be delivered by personal delivery, certified overnight delivery such as Federal Express, or registered mail (return receipt requested) and will be deemed given upon personal delivery or upon confirmation of receipt. Each party may change its address for receipt of notice by giving notice of such change to the other party.
14.9 Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed an original and all of which will be taken together and deemed to be one instrument.
14.10 Electronic Communications. For contractual purposes, you (a) consent to receive communications from Exact Healthcare in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Exact Healthcare provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights, including but not limited to the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. §7001 et seq. (“E-Sign”).
14.11 Entire Agreement. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matters hereof and supersedes and merges all prior discussions between the parties with respect to such subject matters. No modification of or amendment to this Agreement, or any waiver of any rights under this Agreement, will be effective unless in writing and signed by an authorized signatory of the parties.
BUSINESS ASSOCIATE AGREEMENT
This Business Associate Agreement (this “Agreement“) by and between the Customer (“Covered Entity“) and Exact Healthcare, Inc. (“Business Associate“) is entered for the purposes of complying with the Health Insurance Portability and Accountability Act of 1996 and regulations promulgated thereunder (“HIPAA“) and the security provisions of the American Recovery and Reinvestment Act of 2009, also known as the Health Information Technology for Economic and Clinical Health Act (the “HITECH Act“). The “Effective Date” of this Agreement shall be the earlier of (i) Customer’s acceptance of the terms of the above Services Agreement or (ii) Customer’s use of the Exact Healthcare Services.
WHEREAS, Covered Entity is a covered entity as such term is defined under HIPAA and as such is required to comply with the requirements thereof regarding the confidentiality and privacy of Protected Health Information; and
WHEREAS, Business Associate has entered or may enter into an agreement or agreements with Covered Entity (“Service Agreement”), pursuant to which Business Associate may receive Protected Health Information for or on behalf of Covered Entity; and
WHEREAS, by providing services pursuant to the Service Agreement and receiving Protected Health Information for or on behalf of Covered Entity, Business Associate shall become a Business Associate of Covered Entity, as such term is defined under HIPAA, and will therefore have obligations regarding the confidentiality and privacy of Protected Health Information that Business Associate receives from or on behalf of, Covered Entity.
NOW THEREFORE, in consideration of the mutual covenants, promises, and agreements contained herein, the parties hereto agree as follows:
1. DEFINITIONS. For the purposes of this Agreement, capitalized terms shall have the meanings ascribed to them below. All capitalized terms used but not otherwise defined herein will have the meaning ascribed to them by HIPAA.
(a) ”Protected Health Information” or “PHI” is any information, whether oral or recorded in any form or medium that is created, received, maintained, or transmitted by Business Associate for or on behalf of Covered Entity, that identifies an individual or might reasonably be used to identify an individual and relates to: (i) the individual’s past, present or future physical or mental health; (ii) the provision of health care to the individual; or (iii) the past, present or future payment for health care.
(b) ”Secretary” shall refer to the Secretary of the U.S. Department of Health and Human Services.
(c) ”Unsecured PHI” shall mean PHI that is not rendered unusable, unreadable, or indecipherable to unauthorized individuals through the use of a technology or methodology specified by the Secretary (e.g., encryption). This definition applies to both hard copy PHI and electronic PHI.
2. OBLIGATIONS OF BUSINESS ASSOCIATE.
(a) General Compliance with Law
Business Associate warrants that it, its agents and its subcontractors: (i) shall use or disclose PHI only in connection with fulfilling its duties and obligations under this Agreement and the Service Agreement; (ii) shall not use or disclose PHI other than as permitted or required by this Agreement or required by law; (iii) shall not use or disclose PHI in any manner that violates applicable federal and state laws or would violate such laws if used or disclosed in such manner by Covered Entity; and (iv) shall only use and disclose the minimum necessary PHI for its specific purposes.
(b) Use and Disclosure of Protected Health Information
Subject to the restrictions set forth throughout this Agreement, Business Associate may use the information received from Covered Entity if necessary for (i) the proper management and administration of Business Associate; or (ii) to carry out the legal responsibilities of Business Associate.
Subject to the restrictions set forth in throughout this Agreement, Business Associate may disclose PHI for the proper management and administration of Business Associate, provided that: (i) disclosures are required by law, or (ii) Business Associate obtains reasonable assurances from the person or entity to whom the information is disclosed that it will remain confidential and used or further disclosed only as Required by Law or for the purpose for which it was disclosed to the person or entity, and the person or entity notifies the Business Associate of any instances of which it is aware in which the confidentiality of the information has been breached.
Business Associate is permitted, for Data Aggregation purposes to the extent permitted under HIPAA, to use, disclose, and combine PHI created or received on behalf of Covered Entity by Business Associate pursuant to this Agreement with PHI, as defined by 45 C.F.R. 160.103, received by Business Associate in its capacity as a business associate of other covered entities, to permit data analyses that relate to the Health Care Operations of the respective covered entities and/or Covered Entity.
Business Associate may de-identify any and all PHI created or received by Business Associate under this Agreement. Once PHI has been de-identified pursuant to 45 CFR 164.514(b), such information is no longer Protected Health Information and no longer subject to this Agreement.
Business Associate acknowledges that, as between Business Associate and Covered Entity, all PHI shall be and remain the sole property of Covered Entity, including any and all forms thereof developed by Business Associate in the course of its fulfillment of its obligations pursuant to the Agreement and Service Agreement.
(c) Covered Entity Obligations
To the extent that Business Associate is to carry out any of Covered Entity’s obligations that are regulated by HIPAA, Business Associate shall comply with the HIPAA requirements that apply to the Covered Entity in the performance of such obligation.
Business Associate shall employ appropriate administrative, technical and physical safeguards, consistent with the size and complexity of Business Associate’s operations, to protect the confidentiality of PHI and to prevent the use or disclosure of PHI in any manner inconsistent with the terms of this Agreement. Business Associate shall comply, where applicable, with Subpart C of 45 C.F.R. Part 164 with respect to electronic PHI to prevent use or disclosure of such electronic PHI other than as provided for by this Agreement.
(e) Availability of Books and Records
Business Associate shall permit the Secretary and other regulatory and accreditation authorities to audit Business Associate’s internal practices, books and records at reasonable times as they pertain to the use and disclosure of PHI in order to ensure that Covered Entity and/or Business Associate is in compliance with the requirements of HIPAA.
(f) Individuals’ Rights to Their PHI
(i) Access to Information
To the extent Business Associate maintains PHI in a Designated Record Set, in order to allow Covered Entity to respond to a request by an Individual for access to PHI pursuant to 45 CFR Section 164.524, Business Associate, within ten (10) business days upon receipt of written request by Covered Entity, shall make available to Covered Entity such PHI. In the event that any Individual requests access to PHI directly from Business Associate, Business Associate shall forward such request to Covered Entity within five (5) business days.
Covered Entity will be responsible for making all determinations regarding the grant or denial of an Individual’s request for PHI and Business Associate will make no such determinations. Except as Required by Law, only Covered Entity will be responsible for releasing PHI to an Individual pursuant to such a request. Any denial of access to PHI determined by Covered Entity pursuant to 45 CFR Section 164.524, and conveyed to Business Associate by Covered Entity, shall be the responsibility of Covered Entity, including resolution or reporting of all appeals and/or complaints arising from denials.
(ii) Amendment of Information
To the extent Business Associate maintains PHI in a Designated Record Set, in order to allow Covered Entity to respond to a request by an Individual for an amendment to PHI, Business Associate shall, within ten (10) business days upon receipt of a written request by Covered Entity, make available to Covered Entity such PHI. In the event that any Individual requests amendment of PHI directly from Business Associate, Business Associate shall forward such request to Covered Entity within five (5) business days.
Covered Entity will be responsible for making all determinations regarding the grant or denial of an Individual’s request for an amendment to PHI and Business Associate will make no such determinations. Any denial of amendment to PHI determined by Covered Entity pursuant to 45 CFR Section 164.526, and conveyed to Business Associate by Covered Entity, shall be the responsibility of Covered Entity, including resolution or reporting of all appeals and/or complaints arising from denials.
Within ten (10) business days of receipt of a request from Covered Entity to amend an individual’s PHI in the Designated Record Set, Business Associate shall incorporate any approved amendments, statements of disagreement, and/or rebuttals into its Designated Record Set as required by 45 CFR Section 164.526.
(iii) Accounting of Disclosures
In order to allow Covered Entity to respond to a request by an Individual for an accounting pursuant to 45 CFR Section 164.528, Business Associate shall, within ten (10) business days of a written request by Covered Entity for an accounting of disclosures of PHI about an Individual, make available to Covered Entity such PHI. At a minimum, Business Associate shall provide Covered Entity with the following information: (a) the date of the disclosure; (b) the name of the entity or person who received the PHI, and if known, the address of such entity or person; (c) a brief description of the PHI disclosed; and (d) a brief statement of the purpose of such disclosure. In the event that any Individual requests an accounting of disclosures of PHI directly from Business Associate, Business Associate shall forward such request to Covered Entity within five (5) business days. Covered Entity will be responsible for preparing and delivering an accounting to Individual. Business Associate shall implement an appropriate record keeping process to enable it to comply with the requirements of this Agreement.
(g) Disclosure to Subcontractors and Agents
Notwithstanding anything to the contrary in the Services Agreement or this Agreement, Business Associate, subject to the restrictions set forth in this provision, may use subcontractors to fulfill its obligations under this Agreement. Business Associate shall obtain and maintain a written agreement with each subcontractor or agent that has or will have access to PHI, which is received from, or created or received by, Business Associate for or on behalf of Covered Entity, pursuant to which such subcontractor and agent agrees to be bound by the same restrictions, terms, and conditions that apply to Business Associate under this Agreement with respect to such PHI.
(h) Reporting Obligations
In the event of a Breach of any Unsecured PHI that Business Associate accesses, maintains, retains, modifies, records, or otherwise holds or uses on behalf of Covered Entity, Business Associate shall report such Breach to Covered Entity as soon as practicable, but in no event later than ten (10) business days after the date the Breach is discovered. Notice of a Breach shall include, to the extent such information is available: (i) the identification of each individual whose PHI has been, or is reasonably believed to have been, accessed, acquired, or disclosed during the Breach; (ii) the date of the Breach, if known, and the date of discovery of the Breach; (iii) the scope of the Breach; and (iv) the Business Associate’s response to the Breach.
In the event of a use or disclosure of PHI that is improper under this Agreement but does not constitute a Breach, Business Associate shall report such use or disclosure to Covered Entity within ten (10) business days after the date on which Business Associate becomes aware of such use or disclosure.
In the event of any successful Security Incident, Business Associate shall report such Security Incident in writing to Covered Entity within ten (10) business days of the date on which Business Associate becomes aware of such Security Incident. The parties acknowledge that unsuccessful Security Incidents that occur within the normal course of business shall not be reported pursuant to this Agreement. Such unsuccessful Security Incidents include, but are not limited to, port scans or “pings,” and unsuccessful log-on attempts, broadcast attacks on Business Associate’s firewall, denials of service or any combination thereof if such incidents are detected and neutralized by Business Associate’s anti-virus and other defensive software and not allowed past Business Associate’s firewall.
Business Associate will identify and respond internally to any suspected or known Breach of any Unsecured PHI, Security Incident or other improper use or disclosure of PHI, and will mitigate, to the extent practicable, their harmful effects, document their outcomes, and provide documentation of any successful Security Incident and Breach of any Unsecured PHI to Covered Entity upon request.
3. OBLIGATIONS OF COVERED ENTITY.
(a) Permissible Requests
Covered Entity shall not request Business Associate to use or disclose PHI in any manner that would violate applicable federal and state laws if such use or disclosure were made by Covered Entity. Covered Entity may request Business Associate to disclose PHI directly to another party only for the purposes allowed by HIPAA and the HITECH Act.
Covered Entity shall notify Business Associate of any limitation in any applicable notice of privacy practices in accordance with 45 CFR Section 164.520, to the extent that such limitation may affect Business Associate’s use or disclosure of PHI.
Covered Entity shall notify Business Associate of any changes in, or revocation of, permission by individual to use or disclose PHI, to the extent that such changes may affect Business Associate’s use or disclosure of PHI.
Covered Entity shall notify Business Associate of any restriction to the use or disclosure of PHI that Covered Entity has agreed to in accordance with 45 CFR Section 164.522, to the extent that such restriction may affect Business Associate’s use or disclosure of PHI.
4. TERM AND TERMINATION.
(a) General Term and Termination
This Agreement shall become effective on the Effective Date set forth above and shall terminate upon the termination or expiration of the Service Agreement and when all PHI provided by either party to the other, or created or received by Business Associate on behalf of Covered Entity is, in accordance with this Section, destroyed, returned to Covered Entity, or protections are extended.
(b) Material Breach
Where either party has knowledge of a material breach by the other party, the non-breaching party shall provide the breaching party with an opportunity to cure. Where said breach is not cured to the reasonable satisfaction of the non-breaching party within twenty (20) business days of the breaching party’s receipt of notice from the non-breaching party of said breach, the non-breaching party shall, if feasible, terminate this Agreement and the portion(s) of the Service Agreement affected by the breach. Where either party has knowledge of a material breach by the other party and cure is not possible, the non-breaching party shall, if feasible, terminate this Agreement and the portion(s) of the Service Agreement affected by the breach.
(c) Return or Destruction of PHI
Upon termination of this Agreement for any reason, Business Associate shall: (i) if feasible as determined by Business Associate, return or destroy all PHI received from, or created or received by Business Associate for or on behalf of Covered Entity that Business Associate or any of its subcontractors and agents still maintain in any form, and Business Associate shall retain no copies of such information; or (ii) if Business Associate determines that such return or destruction is not feasible, extend the protections of this Agreement to such information and limit further uses and disclosures to those purposes that make the return or destruction of the PHI infeasible, in which case Business Associate’s obligations under this Section shall survive the termination of this Agreement.
If any of the regulations promulgated under HIPAA or the HITECH Act are amended or interpreted in a manner that renders this Agreement inconsistent therewith, the parties shall amend this Agreement to the extent necessary to comply with such amendments or interpretations.
Any ambiguity in this Agreement shall be resolved to permit the parties to comply with HIPAA and the HITECH Act.
(c) Conflicting Terms
In the event that any terms of this Agreement conflict with any terms of the Service Agreement, the terms of this Agreement shall govern and control.
Any notices pertaining to this Agreement shall be given in writing and shall be deemed duly given when personally delivered to a party or a party’s authorized representative as listed below or sent by means of a reputable overnight carrier, or sent by means of certified mail, return receipt requested, postage prepaid. Notices shall be deemed given upon receipt. Notices shall be addressed to the appropriate party as follows:
If to Covered Entity:
All notices shall be sent to the contact and physical address provided upon registration
If to Business Associate:
Exact Healthcare, Inc.
3064 Wake Forest Road #1123 Raleigh, North Carolina 27609
Attn: Chris Kelly
The provisions of this Agreement shall be severable, and if any provision of this Agreement shall be held or declared to be illegal, invalid or unenforceable, the remainder of this Agreement shall continue in full force and effect as though such illegal, invalid or unenforceable provision had not been contained herein.