Updated 10/01/2020

TERMS AND CONDITIONS

Mobile Marketing Helper and/or its affiliates (i.e., Mobile Helper, LLC d/b/a Entrust Management Solutions, referred to herein as the “Company”) provides website development, hosting, optimization, online marketing and related consulting and services (collectively, the “Services”) to you (“Customer”, “you” or “your”), all of which are governed by the applicable purchase order, invoice, or other documentation generated by the Company and sign by you (“Order”), these Terms and Conditions (the “Terms”) and the Business Associate Agreement attached hereto as Exhibit A (the “BAA”, and together with any terms in your Order and these Terms and Conditions, this “Agreement”).  By entering into your Order or using the Services, you agree that you have read and agree to this Agreement. If you are or will be using the Services on behalf of an organization, you agree to this Agreement on behalf of yourself and that organization and you represent that you have the authority to do so. In such case, “you” and “your” will refer to both you and that organization.

SATISFACTION GUARANTEES

As part of our Service offerings, we provide a Satisfaction Guarantee upon the terms described below. Our guarantee comes in two parts – website design and advertising management.

Website Design Guarantee – Until the date that your Website goes live, if at any point you don’t want to continue using our Services, you can ask for your money back. If we cannot fully satisfy your expectations, we will give you a full refund of the website design fees.

Advertising Management Guarantee – While we cannot refund any pass-through fees incurred (e.g., ad spending for Facebook, Google, and other advertising platforms), if you are not completely satisfied with our advertising management services during your first four (4) months after your Website goes live, we will provide up to three (3) months of free advertising management services.

SERVICES

Pursuant to your Order, the Company may (1) develop and maintain a website (your “Website”) for your use during the term of this Agreement, (2) provide hosting services for your Website and (3) offer search engine optimization and other online marketing services and expertise in connection with your Website. The Services provided to you will be set forth on one or more Orders.

Your website will include content provided by the Company to you, including but not limited to data, graphics, fonts, illustrations, text, names, marks, logos, hypertext links to other websites, designs, templates, and other written or graphical content in any form created or licensed content (“Company Content”). Your Website may also include content that you created, including your marketing copy, trade name and trade dress, logos, and other intellectual property created or licensed by you, in each case which is provided by you or your agents to the Company (“Customer Content”). Any derivative works of Company Content created by you or any third party via alteration of the Company Content shall not be considered “Customer Content”, but shall be deemed to be the Company Content.

GEOGRAPHIC SCOPE

To ensure your business is differentiated in your market, we endeavor to only work with one client per any given geographical region or market. The scope of any geographical region or market shall be made in the Company’s sole discretion and may change from time to time. If you conclude we are working with a competitor within a market you conclude is the same market, you may terminate this Agreement with thirty (30) days’ prior notice to us. The foregoing shall be your sole recourse in such event.

LICENSES

License from the Company to You

Subject to the full payment of the fees due to us by you hereunder, while this Agreement remains in effect, the Company hereby grants to you a revocable, non-exclusive, non-sublicensable, non-transferrable, license to (1) use, display, transmit and publish the Company Content solely for use in online and off-line promotion and advertising of your business, and (2) the Company Technology solely for your internal business purposes in conjunction with your Website and in connection with the Services provided by the Company. “Company Technology” means the Company’s proprietary technology, including, without limitation, the Company services, software tools, software (in source code and object code forms), user interface designs, architecture, class libraries, objects and documentation, network designs, know-how, trade secrets and any related intellectual property rights and derivatives, improvements, enhancements, updates, modifications or extensions thereof. You may not resell or distribute any of the Company Content or the Company Technology. You shall not, directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to derive source code or other trade secrets from any of the Company Technology. This license shall automatically terminate upon the termination of this Agreement.

In the event the Company determines, in its sole discretion, that any Company Content provided by the Company is likely to, or becomes subject to a claim of infringement, the Company shall have the right to demand that you cease all use of such Company Content, and the Company may replace the foregoing with similar non-infringing content.

License from You to the Company

You hereby grant to the Company, while this Agreement remains in effect, a non-exclusive, royalty-free, worldwide right and license to do the following to the extent necessary in the performance of Services under the Order: (i) digitize, convert, install, upload, select, order, arrange, compile, combine, synchronize, use, reproduce, store, process, retrieve, transmit, distribute, publish, publicly display, publicly perform and hyperlink the Customer Content; and (ii) make archival or back-up copies of the Customer Content and the Website. Except for the rights expressly granted above, the Company is not acquiring any right, title or interest in or to the Customer Content, all of which shall remain solely with you.

CLIENT ACCOUNT AUTHORIZATIONS

You hereby request and direct Company to access and manage certain of Your accounts for which you will provide unique user credentialed accounts (“Accounts”) to Company users for the purpose of providing Services in accordance with the Order and the Terms. You acknowledge and agree that Company will perform activities within the Accounts and hereby release Company from any liability related to such activities.

You represent and warrant that you have all necessary authority to provide authorization to Company to use the Accounts and will defend and indemnify Company and its affiliates from and against any legal action, demand, suit, or proceeding brought against Company or its affiliates arising out of or relating to Company’s activities related to the Accounts.

You will be solely responsible and liable for (1) provisioning and providing Accounts for Company users, (2) deprovisioning Accounts for Company Users, and (3) reviewing Your account to ensure the quality and accuracy of the data therein.

FEES

You agree to pay when due for all fees set forth on your Order. Notwithstanding anything to the contrary in the Order, the Company’s pricing for its reoccurring fees for ongoing services may change from time to time, which change will be effective upon a notice to you. You agree to provide the Company with accurate and complete billing information and to update this information immediately if any change occurs. You must secure your account with a valid credit card. Payments must be submitted in advance of receiving the Services, as specified in the applicable Order. You authorize the Company to bill your credit card for all Services provided in advance on an on-going basis during the term of this Agreement. The Services may be suspended if your account is delinquent. All fees are non-refundable.

TERM AND TERMINATION

Term

Services provided by the Company will commence on the date indicated in the applicable Order and continue for the duration specified in such Order, often for no less than six (6) months. Thereafter, we will continue to provide you with any Services set forth on such Order, and you shall pay for such Services, for successive one-month periods until terminated as permitted herein. This Agreement shall remain in effect until such time as no Orders remain in effect (the “Term”).

Termination

Each party shall each have the right to terminate this Agreement, and any Order, at any time, and for any reason or no reason, by providing not less than thirty (30) days’ prior notice to the other party. The Company shall have the right to terminate this Agreement and any Order, immediately, without notice to you, if you (a) file for bankruptcy or otherwise become insolvent, or (b) fail to comply with any applicable law or any provision of this Agreement, including but not limited to your failure to timely make any payments due hereunder or pursuant to any Order. Upon termination of this Agreement for any reason:

Company shall have no obligation to maintain or host your website. After providing you with a reasonable opportunity to transfer the hosting and maintenance of your Website, The Company may, at its sole discretion, permanently delete your Website and the contents therein from the Company servers, and the Company will not be able to, nor will the Company be liable for any inability to, reopen or restore such content.

You shall immediately cease all use of the Company Content, destroy, or at the Company’s request, return the Company Content to the Company, and remove the Company Content from your premises, signs, advertisements, website, internal systems and storage.

Immediately upon termination of this Agreement, you will pay the all due and unpaid fees owing to the Company.

Upon your request, the Company will transfer your domain to the registrar of your choice provided: (a) the Company has management of your domain (through registration or transfer) and (b) you have fully paid all amounts due to the Company for any services provided by the Company.

The provisions of this Agreement that are intended to survive the termination of this Agreement shall survive such termination

WEBSITE CONTENT DISCLAIMER AND REPRESENTATIONS

Websites are media whose content includes the personal opinions and expressions of its owners and users. None of the content of websites located on the Company’s servers are screened, approved, reviewed or endorsed by the Company. The Company is not a publisher of any of the content of your Website, or of any content that may be available through the links to and from it. The text, designs and other material on your Website represent your opinions and are not statements of advice, opinion or information by the Company.

CUSTOMER’S REPRESENTATIONS

You hereby represent and warrant to the Company that: (a) you are the owner or valid licensee of the Customer Content and each element thereof, and you have secured all necessary licenses, consents, permissions, waivers and releases for the use of the Customer Content, including without limitation, all trademarks, logos, names and likenesses contained therein, without any obligation by the Company to pay any fees, residuals, guild payments or other compensation of any kind to any Person; (b) Customer’s use, publication and display of the Customer Content will not infringe any copyright, patent, trademark, trade secret or other proprietary or intellectual property right of any person, or constitute a defamation, invasion of privacy or violation of any right of publicity or any other right of any person, including, without limitation, any contractual, statutory or common law right or any “moral right” or similar right however denominated; (c) you will comply with all applicable laws, rules and regulations regarding the Customer Content and your Website and will use the Website only for lawful purposes and in strict accordance with this Agreement.

CUSTOMER’S RESPONSIBILITIES

You will cooperate fully with the Company in connection with the Company’s performance of the Services. You are responsible for providing any equipment or software that may be necessary for you to use the Services. Delays in the performance of your obligations under this Agreement will extend the time for the Company’s performance of its obligations that depend on your performance on a day for day basis. The Company shall not be responsible for any damages to your Content, your Website or other damages or any malfunctions or service interruptions caused by any failure of the Customer Content or your Website to be compatible with the hardware and software used by the Company to provide the Hosting Services. You are solely responsible for making back-up copies of your Website and Customer Content.

THE COMPANY INTELLECTUAL PROPERTY

The Company’s trademarks, tradenames, service marks, logos, other names and marks, copyrighted content, and related intellectual property are the sole and exclusive property of the Company. You may not use any of the foregoing in any advertising, publicity or in any other commercial manner without the prior written consent of the Company. Any feedback, data, answers, questions, comments, suggestions, ideas or the like which you send or relay to the Company relating to the Services are the sole and exclusive property of the Company. The Company may use, disclose or publish any ideas, concepts, know-how or techniques contained in such information for any purpose whatsoever.

INDEMNIFICATION

You shall defend, indemnify and hold harmless the Company, its affiliates and their respective present, former and future officers, directors, employees and agents, (collectively the “the Company Indemnitees”), from and against any and all losses, damages, costs, liabilities and expenses (including reasonable attorneys’ fees) which any of the Company Indemnitees may suffer, incur or sustain resulting from or arising out of (i) your breach of any representation, warranty, obligation or covenant contained in the Agreement, or (ii) your violation of any applicable law.

CONFIDENTIALITY

Neither party will, without the prior written consent of the other party, use or disclose to any person any “Proprietary Information” (defined below) of the other party disclosed or made available to it, except for use of such Proprietary Information as required in connection with the performance of its obligations or use of the Services hereunder. “Proprietary Information” means all technical, business and other information of a party (i) that is not generally known to the public, (ii) that derives value, economic or otherwise, from not being generally known to the public or to other Persons who can obtain value from its disclosure or use, and (iii) which information is subject to efforts that are reasonable under the circumstances to maintain the secrecy thereof. Each party will (a) treat the other party’s Proprietary Information as secret and confidential, (b) limit access to the other party’s Proprietary Information to those of its employees, affiliates, directors, managers and agents who require it in order to effectuate the purposes of this Agreement.

Notwithstanding the above, the following shall not be considered Proprietary Information: (i) any information that the receiving party can demonstrate by written documentation was within its legitimate possession prior to the time of disclosure by the disclosing party; (ii) any information that was in the public domain prior to disclosure by the disclosing party as evidenced by documents that were published prior to such disclosure; (iii) any information that, after disclosure by the disclosing party, comes into the public domain through no fault of the receiving party, (iv) any information that is disclosed to the receiving party without restriction by a third party who has legitimate possession thereof and the legal right to make such disclosure; or (v) any information that, two years after expiration or termination of this Agreement, does not constitute a trade secret under applicable law.

Each party acknowledges that disclosure of any aspect of the Proprietary Information of the other party may immediately give rise to irreparable injury to the other party and, without prejudice to any other remedy available to the other party, shall entitle the other party to seek injunctive or other equitable relief.

LIMITED WARRANTY

The Company represents and warrants to you that the Services will be performed (i) in a manner consistent with industry standards reasonably applicable to the performance thereof; (ii) at least at the same level of service as provided by the Company generally to its other customers for the same services; and (iii) in compliance in all material respects with the applicable Order. You will be deemed to have accepted such Services unless you notify the Company within thirty (30) days after performance of any Services of any breach of the foregoing warranties. Your sole and exclusive remedy, and the Company’s sole obligation, for breach of the foregoing warranties shall be for the Company, at its option, to re-perform the defective Services at no cost to you, or, in the event of interruptions to the Services caused by a breach of the foregoing warranties, issue you a credit in an amount equal to the current monthly Service fees pro-rated by the number of hours in which the Services have been interrupted. The foregoing warranties shall not apply to performance issues or defects in the Services (i) caused by factors outside of the Company’s reasonable control; (ii) that resulted from any actions or inactions of you or any third parties; or (iii) that resulted from your equipment or any third-party equipment not within the sole control of the Company.

DISCLAIMER OF WARRANTY; LIMITATION OF LIABILITY

EXCEPT AS EXPRESSLY SET FORTH HEREIN, ALL CONTENT, SERVICES AND SOFTWARE (INCLUDING LICENSED THIRD-PARTY SOFTWARE) ARE PROVIDED BY THE ASSOCIATE COMPANY ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR WARRANTIES OF NON-INFRINGEMENT.

THE COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE OR COMPLETELY SECURE, AND MAKES NO REPRESENTATIONS OR WARRANTIES WITH REGARD TO THE INTEGRITY OF DATA, INFORMATION OR CONTENT STORED OR TRANSMITTED VIA THE INTERNET, AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES, OR AS TO THE ACCURACY OR RELIABILITY OF ANY OF THE CONTENT, INFORMATION OR SERVICES PROVIDED BY OR THROUGH THE COMPANY. THE SERVICES PROVIDED HEREUNDER PROVIDE THE PUBLIC WITH ACCESS TO YOUR WEBSITES AS STORED IN ELECTRONIC FORM. BECAUSE SUCH ELECTRONIC DATA CAN BE CORRUPTED OR LOST REGARDLESS OF WHAT PROTECTIONS ARE PROVIDED, AND BECAUSE PUBLICLY AVAILABLE WEBSITES ARE SUBJECT TO POTENTIAL INFILTRATION OR HACKING BY THIRD PARTIES, THE COMPANY CANNOT BE HELD LIABLE FOR LOST DATA OR ANY LOST PROFITS OR OTHER DAMAGES RELATED THERETO. THE COMPANY WILL NOT BE LIABLE FOR ANY UNAUTHORIZED ACCESS TO, OR ANY CORRUPTION, ERASURE, THEFT, DESTRUCTION, ALTERATION OR INADVERTENT DISCLOSURE OF, DATA, INFORMATION OR CONTENT TRANSMITTED, RECEIVED OR STORED ON ITS SYSTEM. FURTHER, THE COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING, AND DISCLAIMS ALL LIABILITY WITH RESPECT TO, THE UPTIME OF YOUR WEBSITE OR HOSTING SERVICES.

UNDER NO CIRCUMSTANCES SHALL THE COMPANY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR LOST PROFITS, INCLUDING, WITHOUT LIMITATION, LOST PROFITS AND DAMAGES RELATED TO CORRUPTION OR DELETION OF WEBSITE CONTENTS, EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, COSTS OR LOSSES, AND THE AGGREGATE, TOTAL LIABILITY OF THE COMPANY FOR ALL DAMAGES, INJURY, LOSSES AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT OR OTHERWISE) ARISING FROM OR RELATING TO THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE SERVICES SHALL BE LIMITED TO PROVEN DIRECT DAMAGES IN AN AMOUNT NOT TO EXCEED THE AMOUNT, IF ANY, PAID BY YOU IN THE THEN PRECEDING TWELVE (12) MONTHS FOR YOUR USE OF THE SERVICES.

CHANGES IN TERMS

We may, in our sole discretion, modify these Terms at any time effective upon posting such modified Terms, with or without additional notice to you. The most current version of the Terms will always be posted on our website. If you do not agree to the amended Terms, you agree to immediately stop using the Services and to provide us notice to terminate as may be permitted herein. YOUR CONTINUED USE OF THE SERVICES AFTER SUCH POSTING (OR OTHER NOTIFICATION, IF ANY) OF ANY MODIFICATION OR THE TERMS MEANS YOU ACCEPT AND AGREE TO BE BOUND BY SUCH MODIFIED TERMS.

MISCELLANEOUS

Independent Contractor

The Company and Customer are independent contractors and nothing contained in this Agreement places the Company and Customer in the relationship of principal and agent partners or joint venturers. Neither party has, or may represent itself as having, any authority to make contracts or enter into any agreements in the name of the other party, or to obligate or bind the other party in any manner whatsoever.

Governing Law; Jurisdiction

Any controversy or claim arising out of or relating to this Agreement, the formation of this Agreement or the breach of this Agreement, including any claim based upon arising from an alleged tort, shall be governed by the substantive laws of the State of Connecticut. Both parties submit to sole and exclusive jurisdiction and venue in the state and federal courts of Connecticut.

Entire Agreement; Amendments

This Agreement supersedes all prior discussions, negotiations and agreements between the parties with respect to the subject matter hereof, and this Agreement constitutes the sole and entire agreement between the parties with respect to the matters covered hereby. In case of a conflict between this Agreement and any Order, the terms and conditions of the Order shall control. This Agreement may not be modified or amended except by another agreement in writing executed by the parties hereto; provided, however, that these Terms may be modified from time to time by the Company in its sole discretion, which modifications will be effective upon posting to the Company’s website.

Severability

If any provision or portion of any provision of this Agreement shall be held to be illegal, invalid or unenforceable by a court of competent jurisdiction, it is the intention of the parties that the remaining provisions or portions thereof shall constitute their agreement with respect to the subject matter hereof, and all such remaining provisions or portions thereof shall remain in full force and effect.

Notices

All notices and demands required or contemplated hereunder by one party to the other shall be in writing and shall be deemed to have been duly made and given upon date of delivery if delivered in person or by an overnight delivery or postal service, upon confirmation of delivery if delivered by email.

Waiver

No failure or delay by any party hereto to exercise any right or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy by any party preclude any other or further exercise thereof or the exercise of any other right or remedy.

Assignment

You may not assign or transfer this Agreement, or any of its rights or obligations hereunder, without the prior written consent of the Company. Any attempted assignment in violation of the foregoing provision shall be null and void. the Company may assign its rights and obligations under this Agreement, and may engage subcontractors or agents in performing its duties and exercising its rights hereunder, without your consent. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.

No Third-Party Beneficiaries

Except as otherwise expressly provided in this Agreement, nothing in this Agreement is intended, nor shall anything herein be construed to confer any rights, legal or equitable, in any person other than the parties hereto and their respective successors and permitted assigns.

EXHIBIT A

BUSINESS ASSOCIATE AGREEMENT

This HIPAA Business Associate Agreement (“BAA”) amends and is made part of that certain Agreement entered into by you and Medical Care Marketing (this BAA, including the Order, Terms and Conditions, this “Agreement”), by and between you as the Associate Customer (“Entity”) and Mobile Helper, LLC d/b/a Medical Care Marketing (“Associate”).

Entity and Associate agree that the parties incorporate this BAA into the Agreement in order to comply with the requirements of the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), the Health Information Technology for Economic and Clinical Health Act (“HITECH”) and their implementing regulations set forth at 45 C.F.R. Parts 160 and Part 164 (the “HIPAA Rules”). To the extent Associate is acting as a Business Associate of Entity pursuant to the Agreement, the provisions of this BAA shall apply, and Associate shall be subject to the penalty provisions of HIPAA as specified in 45 CFR Part 160.

1. Definitions. Capitalized terms not otherwise defined in this BAA shall have the meaning set forth in the HIPAA Rules. References to “PHI” mean Protected Health Information maintained, created, received or transmitted by Associate from Entity or on Entity’s behalf.
2. Uses or Disclosures. Associate will neither use nor disclose PHI except as permitted or required by this BAA or as Required By Law. To the extent Associate is to carry out an obligation of Entity under the HIPAA Rules, Associate shall comply with the requirements of the HIPAA Rules that apply to Entity in the performance of such obligation. Associate is permitted to use and disclose PHI:

(a) to perform any and all obligations of Associate as described in the Agreement, provided that such use or disclosure would not violate the HIPAA Rules if done by Entity directly;

(b) otherwise permitted by law, provided that such use or disclosure would not violate the HIPAA Rules, if done by Entity directly and provided that Entity gives its prior written consent;

(c) to perform Data Aggregation services relating to the health care operations of Entity;

(d) to report violations of the law to federal or state authorities consistent with 45 C.F.R. § 164.502(j)(1);

(e) as necessary for Associate’s proper management and administration and to carry out Associate’s legal responsibilities (collectively “Associate’s Operations”), provided that Associate may only disclose PHI for Associate’s Operations if the disclosure is Required By Law or Associate obtains reasonable assurance, evidenced by a written contract, from the recipient that the recipient will: (1) hold such PHI in confidence and use or further disclose it only for the purpose for which Associate disclosed it to the recipient or as Required By Law; and (2) notify Associate of any instance of which the recipient becomes aware in which the confidentiality of such PHI was breached;

(f) to de-identify PHI in accordance with 45 C.F.R. § 164.514(b), provided that such de-identified information may be used and disclosed only consistent with applicable law.

In the event Entity notifies Associate of a restriction request that would restrict a use or disclosure otherwise permitted by this BAA, Associate shall comply with the terms of the restriction request.

3. Safeguards. Associate will use appropriate administrative, technical and physical safeguards to prevent the use or disclosure of PHI other than as permitted by this BAA. Associate will also comply with the provisions of 45 CFR Part 164, Subpart C of the HIPAA Rules with respect to electronic PHI to prevent any use or disclosure of such information other than as provided by this BAA.
4. Subcontractors. In accordance with 45 CFR §§ 164.308(b)(2) and 164.502(e)(1)(ii), Associate will ensure that all of its subcontractors that create, receive, maintain or transmit PHI on behalf of Associate agree by written contract to comply with the same restrictions and conditions that apply to Associate with respect to such PHI.
5. Minimum Necessary. Associate represents that the PHI requested, used or disclosed by Associate shall be the minimum amount necessary to carry out the purposes of the Agreement. Associate will limit its uses and disclosures of, and requests for, PHI (i) when practical, to the information making up a Limited Data Set; and (ii) in all other cases subject to the requirements of 45 CFR § 164.502(b), to the minimum amount of PHI necessary to accomplish the intended purpose of the use, disclosure or request.
6. Obligations of Entity. Entity shall notify Associate of (i) any limitations in its notice of privacy practices, (ii) any changes in, or revocation of, permission by an individual to use or disclose PHI, and (iii) any confidential communication request or restriction on the use or disclosure of PHI that Entity has agreed to or with which Entity is required to comply, to the extent any of the foregoing affect Associate’s use or disclosure of PHI.
7. Access and Amendment. In accordance with 45 CFR § 164.524, Associate shall permit Entity or, at Entity’s request, an individual (or the individual’s designee) to inspect and obtain copies of any PHI about the individual that is in Associate’s custody or control and that is maintained in a Designated Record Set. If the requested PHI is maintained electronically, Associate must provide a copy of the PHI in the electronic form and format requested by the individual, if it is readily producible, or, if not, in a readable electronic form and format as agreed to by Entity and the individual. Associate will, upon receipt of notice from Entity, promptly amend or permit Entity access to amend PHI so that Entity may meet its amendment obligations under 45 CFR § 164.526.
8. Accounting. Except for disclosures excluded from the accounting obligation by the HIPAA Rules and regulations issued pursuant to HITECH, Associate will record for each disclosure that Associate makes of PHI the information necessary for Entity to make an accounting of disclosures pursuant to the HIPAA Rules. In the event the U.S. Department of Health and Human Services (“HHS”) finalizes regulations requiring Covered Entities to provide access reports, Associate shall also record such information with respect to electronic PHI held by Associate as would be required under the regulations for Covered Entities beginning on the effective date of such regulations. Associate will make information required to be recorded pursuant to this Section available to Entity promptly upon Entity’s request for the period requested, but for no longer than required by the HIPAA Rules (except Associate need not have any information for disclosures occurring before the effective date of this BAA).
9. Inspection of Books and Records. Associate will make its internal practices, books, and records, relating to its use and disclosure of PHI, available upon request HHS to determine compliance with the HIPAA Rules.
10. Reporting. To the extent Associate becomes aware or discovers any use or disclosure of PHI not permitted by this BAA, any Security Incident involving electronic PHI or any Breach of Unsecured Protected Health Information involving PHI, Associate shall promptly report such use, disclosure, Security Incident or Breach to Entity. Associate shall mitigate, to the extent practicable, any harmful effect known to it of a Security Incident, Breach or use or disclosure of PHI by Associate not permitted by this BAA. Notwithstanding the foregoing, the parties acknowledge and agree that this section constitutes notice by Associate to Entity of the ongoing existence and occurrence of attempted but Unsuccessful Security Incidents (as defined below) for which no additional notice to Entity shall be required. “Unsuccessful Security Incidents” shall include, but not be limited to, pings and other broadcast attacks on Associate’s firewall, port scans, unsuccessful log-on attempts, denials of service and any combination of the above, so long as no such incident results in unauthorized access, use or disclosure of electronic PHI. All reports of Breaches shall be made in compliance with 45 CFR § 164.410.
11. Term and Termination. This BAA shall be effective as of the effective date of the Agreement and shall remain in effect until termination of the Agreement. Either party may terminate this BAA and the Agreement effective immediately if it determines that the other party has breached a material provision of this BAA and failed to cure such breach within thirty (30) days of being notified by the other party of the breach. If the non-breaching party determines that cure is not possible, such party may terminate this BAA and the Agreement effective immediately upon written notice to other party.

Upon termination of this BAA for any reason, Associate will, if feasible, return to Entity or destroy all PHI maintained by Associate in any form or medium, including all copies of such PHI. Further, Associate shall recover any PHI in the possession of its agents and subcontractors and return to Entity or securely destroy all such PHI. In the event that Associate determines that returning or destroying any PHI is infeasible, Associate may maintain such PHI but shall continue to abide by the terms and conditions of this BAA with respect to such PHI and shall limit its further use or disclosure of such PHI to those purposes that make return or destruction of the PHI infeasible. Upon termination of this BAA for any reason, all of Associate’s obligations under this BAA shall survive termination and remain in effect (a) until Associate has completed the return or destruction of PHI as required by this Section and (b) to the extent Associate retains any PHI pursuant to this Section.

12. General Provisions. In the event that any final regulation or amendment to final regulations is promulgated by HHS or other government regulatory authority with respect to PHI, the parties shall negotiate in good faith to amend this BAA to remain in compliance with such regulations. Any ambiguity in this BAA shall be resolved to permit Entity and Associate to comply with the HIPAA Rules. Nothing in this BAA shall be construed to create any rights or remedies in any third parties or any agency relationship between the parties. A reference in this BAA to a section in the HIPAA Rules means the section as in effect or as amended. The terms and conditions of this BAA override and control any conflicting term or condition of the Agreement and replace and supersede any prior business associate agreements in place between the parties. All non-conflicting terms and conditions of the Agreement remain in full force and effect.

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