MASTER SERVICES AGREEMENT for Billing Services

THIS MASTER SERVICES AGREEMENT (“AGREEMENT” ) GOVERNS CLIENT’S PURCHASE AND USE OF SERVICES FROM DR CATALYST LLC (“DRC” ). CLIENT AND DRC ARE INDIVIDUALLY REFERRED AS A “PARTY” AND COLLECTIVELY AS THE “PARTIES” . WHEN EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU ACCEPT AND AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, AND TO THE APPLICABLE SCHEDULES, EXHIBITS AND ATTACHMENTS INCORPORATED HEREIN BY REFERENCE. IF YOU ARE ENTERING INTO THIS GREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES

DRC shall provide to Client the services (the “Services”) set out in one or more Order Forms to be provided by DRC and accepted by Client (each, an “Order Form”). The initial accepted Order Form is attached hereto as Exhibit A. Additional Order Forms shall be deemed issued and accepted only if signed by DRC and Client.

  1. 2.1 Designate staff that it determines, in its sole discretion, to be capable of filling the following positions:
    1. A primary contact to act as its authorized representative with respect to all matters pertaining to this Agreement (the “DRC Account Manager”) and an implementer.
    2. A number of staff that it deems sufficient to perform the Services as set out in each Order Form, (collectively, with the DRC Account Manager, “DRC Representatives”). Client understands and agrees that the implementation process of the appropriate DRC Services may take between 2 to 4 weeks, in some cases more, depending upon the scope of the Services agreed upon.
    3. DRC shall coordinate with Client training, software access and ensure that the invoices are correct. Client understands and agrees that DRC Representatives should be given two (2) to three (3) weeks to learn each new skill and duties assigned by Client.
    4. DRC shall provide to Client reports regarding the Services listed in the Order Form(s) on a frequency agreed upon by both parties.
    5. In case that a Provider Representative requires a leave (sick days, vacations, and maternity leaves) beyond five (5) business days, DRC shall submit this information to the Client and the action plan on either covering for those billable hours with a Back-Up Provider Representative, as defined in section 2.1(f), until he/she returns, and/or supply a fully trained replacement to assume the position indefinitely. Client shall not be billed for any hours DRC does not render Services.
    6. DRC shall supply to Client with a dedicated and fully trained back-up Provider Representative for each type of
      Service(s) listed in the Order Form(s) only when the client has six (6) billable FTS per area of service; Administrative and Clinical Staffing, and/or RCM and Medical Billing, and/or Marketing.
  2. 2.2 Make no changes in DRC Representatives except:
    1. Following notice to Client.
    2. Upon the resignation, termination, death or disability of an existing Provider Representative.
    3. At the reasonable request of Client, in which case DRC shall use reasonable efforts to appoint a replacement at the earliest time it determines to be commercially viable
  3. 2.3 DRC shall perform the Services:
    1. In accordance with the terms and subject to the conditions set out in the respective Order Form and this Agreement.
    2. Using personnel of commercially reasonable skill, experience and qualifications.
    3. In a timely, skillful, and professional manner in accordance with generally recognized industry standards for similar services.
  4. 2.4 Kick-Off Call: DRC will attempt to schedule a kick-off call with Client no later than five (5) days following the execution of an Order Form to coordinate the implementation of the Services listed within such Order Form(s).
  5. 2.5 DRC shall use reasonable commercial efforts to promptly cure any failure to comply with its responsibilities; provided, that if DRC cannot cure such failure within a reasonable time (but no more than thirty (30) days) after Client’s written notice of such failure, Client may terminate this Agreement by serving written notice of termination in accordance with Section 7.3(a).

  1. 3.1 Designate one of its employees or agents to serve as its primary contact with respect to this Agreement and to act as its authorized representative with respect to matters pertaining to this Agreement (the “Client Contract Manager”), with such designation to remain in force unless and until a successor Client Contract Manager is appointed.
  2. 3.2 Require that the Client Contract Manager respond promptly to any reasonable requests from DRC for instructions, information or approvals required by DRC to provide the Services.
  3. 3.3 Cooperate with DRC in its performance of the Services and provide access to Client’s premises, employees, contractors, equipment and software as required to enable DRC to provide the Services.
  4. 3.4 Attend a Kick-Off Call with DRC within five (5) business days of execution of the respective Order Form to provide valuable information to DRC AccountManager and implementers. DRC shall not be liable for any delays in implementation of DRC Services due to Client’s failure to attend a Kick-Off Call within the time period provided herein or to provide the requested information to DRC.
  5. 3.5 Supply DRC with Client’s policies, procedures, and SOPs within five (5) business days of the Kick-Off Call. Client shall be solely responsible for reviewing these SOPs periodically and to communicate to DRC any changes as soon as possible via email and/or within the SOP itself.
  6. 3.6 When required, Client shall give to DRC Representatives access to the Client’s Electronic Medical Records, Electronic Health Records, Client’s Phone System (VoIP) Dashboard or any other software or system to allow the Providers Representatives to provide the services within ten (10) business days of signing this Agreement. DRC shall not be liable to Client for failure to provide the Services due to Client’s failure to provide such access.
  7. 3.7 Take all steps necessary, including obtaining any required licenses or consents, to prevent Client-caused delays in DRC’s provision of the Services.
  8. 3.8 Provide feedback regarding Client’s individual DRC Representatives’ performance at least every quarter or as needed to ensure the quality of services. Client’s feedback can be sent to DRC via email survey or a conference call.
  9. 3.9 Meet weekly or bi-weekly with DRC Account Manager to ensure the proper provision of the Services, address Client’s concerns, discussion of SOP changes, additional FTS requests, and overall quality of services throughout the term of this Agreement.

  1. 4.1 Client shall pay DRC at the rates established in the Order Form. Client shall pay DRC the calculated amount in US dollars. All invoices are due upon receipt. Client agrees to pay DRC on or before the 15th calendar day of each month through bank-to-bank transfers known as an Automated Clearing House (ACH) or Credit Card. Client shall be responsible for providing DRC correct and updated information. No checks accepted.
  2. 4.2 Any delays in the implementation or commencement date of the Services not due to DRC’s fault shall not prevent DRC from beginning to bill the applicable Monthly/ Recurring Fees due under this Agreement.
  3. 4.3 Any expenses incurred by DRC that have been pre-approved by Client Contract Manager, shall be reimbursed to DRC within five (5) days of receipt by Client of an invoice from DRC accompanied by receipts and reasonable supporting documentation.
  4. 4.4 Client shall be responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental entity on any amounts payable by Client hereunder; provided, that, in no event Client will pay any fees or taxes that DRC is obligated by law to pay, including, but not limited to, business taxes, state or local taxes, DRC’s payroll taxes and/ or workers compensation. DRC reserves the right to collect sales/ use tax rates and/ or collect the state tax assessed for the Services, if any, should Client fail to pay them.
  5. 4.5
    Except for invoiced payments that the Client has successfully disputed, an administrative late charge of $35.00 per invoice will be charged for any invoice not paid by the applicable due date (including any electronic transaction that is declined and any returned checks), and an additional $35.00 shall be charged for each 30 days thereafter that such invoice remains unpaid. Furthermore, all late payments shall bear interest at the lesser rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Client shall also reimburse DRC for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under this Agreement or at law (which DRC does not waive by the exercise of any rights hereunder), DRC shall be entitled to suspend the provision of any Services if the Client fails to pay any undisputed amounts when due hereunder and such failure continues for ten (10) days following written notice thereof.
  6. 4.6 Fee Increases. DRC reserves the right to increase the Service Fees effective on the Renewal date of this Agreement. DRC shall provide written notice of such fees increase at least ninety (90) days before the termination of the Term then in effect. If Client does not agree with such increase, Client shall be able to terminate this Agreement pursuant to the terms and conditions of Section 7.2 herein.

All intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how and other confidential information, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, “Intellectual Property Rights”) in and to all documents, work product, and other materials that are delivered to Client under this Agreement or prepared by or on behalf of DRC in the course of performing the Services (collectively, the “Deliverables”) except for any Confidential Information of Client or Client materials shall be owned by DRC. DRC hereby grants Client a license to use all Intellectual Property Rights in the Deliverables free of additional charge and on a non-exclusive, worldwide, non-transferable, non-sublicensable, fully paid-up, royalty-free and perpetual basis to the extent necessary to enable Client to make reasonable use of the Deliverables and the Services.

From time to time during the Term of this Agreement, either Party (as the “Disclosing Party”) may disclose or make available to the other Party (as the “Receiving Party”), non-public, proprietary, and confidential information of Disclosing Party that, if disclosed in writing or other tangible form is clearly labeled as “confidential,” or if disclosed orally, is identified as confidential when disclosed and within ten (10) days thereafter, is summarized in writing and confirmed as confidential (“Confidential Information”); provided, however, that Confidential Information does not include any information that: (a) is or becomes generally available to the public other than as a result of Receiving Party’s breach of this Section 7; (b) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (c) was in Receiving Party’s possession prior to Disclosing Party’s disclosure hereunder; or (d) was or is independently developed by Receiving Party without using any Confidential Information.

The Receiving Party shall: (x) protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (y) not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (z) not disclose any such Confidential Information to any person or entity, except to the Receiving Party’s Group who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement.

If the Receiving Party is required by applicable law or legal process to disclose any Confidential Information, it shall, prior to making such disclosure and unless otherwise prohibited, use commercially reasonable efforts to notify Disclosing Party of such requirements to afford Disclosing Party the opportunity to seek, at Disclosing Party’s sole cost and expense, a protective order or other remedy. For purposes of this Section 7 only, Receiving Party’s Group shall mean the Receiving Party’s affiliates and its or their employees, officers, directors, shareholders, partners, members, managers, agents, independent contractors, DRCs, sublicensees, subcontractors, attorneys, accountants, and financial advisors.

With regard to its use and/ or disclosure of Protected Health Information (“PHI”), the Parties shall be subject to the terms and conditions of the Business Associate Agreement (“BAA”) executed between the Parties and incorporated herein by reference. The Parties agree to amend or execute any necessary agreements as necessary to comply with all applicable rules and regulations.

  1. 7.1 Term of Agreement. This Agreement commences on the date Client executes an Order Form wherein Client agrees to all terms and conditions contained within this Agreement and continues throughout the term of Client’s contractual relationship with DRC unless otherwise stated within this Agreement or sooner terminated pursuant to Section 7 .3 or Section 7 .4.
  2. 7.2 The Initial Term (“Initial Term”) of this Agreement shall begin on the Effective Date and will continue for the term specified in the Order Form. Unless otherwise indicated in the Order Form, this Agreement will automatically renew for the term specified in the Order Form unless either Party sends notice of non-renewal to the other Party at least thirty (30) days before the renewal date.
  3. 7.3 Free Trial (IF APPLICABLE)
    1. The Free Trial Period (“Free Trial”) shall begin on the Effective Date and shall last for the period specified in the Order Form. After the end of the Free Trial, DRC shall begin to bill the fees specified in the Order Form for the Services.
    2. Client will be required to provide payment card details as part of the Free Trial enrollment to allow automatic payments once the Free Trial ends.
    3. Client can cancel the Services during the Free Trial by sending written notice of cancellation to DRC at least three (3) working days before the Free Trial ends.
    4. Client shall be solely responsible to comply with DRC’s requests and recommendations as quickly as possible to maximize the Free Trial. Client shall be responsible to provide any data needed for the Services. Any delays caused due to insufficient data at the Client’s end, shall be Client’s responsibility and will not be deducted from the Free Trial.
    5. Free Trial is available to new customers only. Existing customers acquiring additional Services are not eligible for a Free Trial on such Services.
    6. Services provided by third parties are not eligible for the Free Trial and if selected, must be paid accordingly.
    7. Free Trial might not be available for clients in all regions.
    8. Notice will be sent if payment fails for any reason. Client shall be responsible to make sure payment details are correct to allow successful renewal payments.
    9. DRC reserves the right to remove or cancel the Free Trial at any time. DRC reserves the right to change the features of the Free Trial at any time. DRC reserves the right to deny or cancel Services at any time and for any reason.
    10. ANY DATA CLIENT ENTERS INTO OR PROVIDES FOR THE SERVICES DURING THE FREE TRIAL WILL BE PERMANENTLY LOST UNLESS CLIENT PURCHASE A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE FREE TRIAL, PURCHASES UPGRADED SERVICES, OR EXPORT SUCH DATA, BEFORE THE END OF THE FREE TRIAL.
    11. Notwithstanding anything herein to the contrary, Free Trial is provided “AS IS,” without any warranty, covenant, commitment or liability whatsoever, to the extent permitted by law.
  4. 7.4 Either Party may terminate this Agreement, effective upon written notice to the other Party (the “Defaulting Party”) if the Defaulting Party:
    1. Materially breaches this Agreement, and such breach is incapable of cure, or with respect to a material breach capable of cure, the Defaulting Party does not cure such breach within thirty (30) days after receipt of written notice of such breach.
    2. Client’s use of the Services poses a safety threat, is illegal, infringes on the rights of a third party, or will subject DRC to civil or criminal liability.
    3. Becomes insolvent or admits its inability to pay its debts generally as they become due.
    4. Becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, which is not fully stayed within seven days or is not dismissed or vacated within 45 days after filing.
    5. Is dissolved or liquidated or takes any corporate action for such purpose.
    6. Makes a general assignment for the benefit of creditors.
    7. Has a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
  5. 7.5 Notwithstanding anything to the contrary in Section 7.3 and Section 7.4, DRC may terminate this Agreement before the expiration date of the Term on written notice if Client fails to pay any amount when due hereunder and such failure continues for ten (10) days after Client’s receipt of written notice of nonpayment or happens more than two (2) times in any two (2) month period;
  6. 7.6 Except as provided herein, Client may not terminate this Agreement without cause. Client shall be required to pay an amount equal to the remaining payments due under the applicable term for any early cancellations. DRC reserves the right to terminate this Agreement and the provision of the Services at any time with or without cause.
  7. 7.7 Termination of the Agreement (i) shall not relieve any party from any liability that may have arisen prior to such termination, (ii) shall not relieve Client of its obligation to pay all fees that have accrued or are otherwise owed by the Client under the Agreement prior to such termination, and (iii) shall not limit either party from pursuing other remedies available to it under Law, including injunctive relief.
  8. 7.8 The rights and obligations of the Parties set forth in this Section 7 and in Section 4, Section 5, Section 6, Section 7, Section 8, Section 9, Section 10, Section 11, Section 20, Section 21, Section 22, Section 24 and Section 26, and any right or obligation of the Parties in this Agreement which, by its nature, should survive termination or expiration of this Agreement, will survive any such termination or expiration of this Agreement.

EXCEPT FOR DRC’S REPRESENTATIONS HEREIN, NOTHING IN THIS AGREEMENT SHALL BE CONSTRUED TO CREATE ANY EXPRESS OR IMPLIED WARRANTY, OR EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE ON THE PART OF DRC, AND ALL SUCH WARRANTIES ARE EXPRESSLY DISCLAIMED.

  1. 9.1 DRC’S TOTAL LIABILITY FOR ANY AND ALL CLAIMS, SUITS, INDEMNITY, AND DAMAGES (DIRECT OR INDIRECT, SPECIAL, INCIDENTAL, AND/OR CONSEQUENTIAL) SHALL BE LIMITED TO THE AMOUNT OF THE MOST RECENT THREE (3) MONTHS OF SERVICES FEES PAID BY CLIENT AND RECEIVED BY DRC. DRC SHALL NOT BE LIABLE FOR ANY FAILURE OR DELAY IN PERFORMANCE DUE TO ANY CAUSE BEYOND ITS CONTROL. DRC SHALL NOT BE LIABLE FOR ANY DAMAGE CAUSED BY CLIENT’S FAILURE TO PERFORM CLIENT’S OBLIGATIONS AND RESPONSIBILITIES. DRC SHALL NOT BE RESPONSIBLE FOR LOST PROFITS AND OTHER CONSEQUENTIAL DAMAGES, EVEN IF THE POSSIBILITY OF SUCH DAMAGES WAS KNOWN TO DRC, OR FOR ANY CLAIM AGAINST CLIENT BY ANY THIRD PARTY ARISING IN ANY WAY OUT OF THIS AGREEMENT.
  2. 9.2 NEITHER PARTY MAY INSTITUTE AN ACTION IN ANY FORM ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT MORE THAN ONE (1) YEAR AFTER THE CAUSE OF ACTION HAS ARISEN, OR IN THE CASE OF NONPAYMENT, MORE THAN ONE (1) YEAR FROM THE DATE OF LAST PAYMENT OR PROMISE TO PAY, EXCEPT THAT THIS LIMITATION DOES NOT APPLY TO ANY ACTION FOR THE PAYMENT OF TAXES.
  3. 9.3 WITHOUT LIMITING THE FOREGOING, CLIENT AGREES THAT THE USE OF THE DRC Representatives FOR ANY PURPOSE RELATED TO PATIENT CARE CANNOT BE CONTROLLED BY DRC, AND MUST NOT BE SUBSTITUTED FOR CLIENT’S PROFESSIONAL SUPERVISION, SKILL, AND JUDGMENT.

Each Party (“Indemnifying Party”) shall indemnify, defend and hold harmless the other Party and its affiliates, and their respective directors, officers, employees, and agents (each, an “Indemnified Party”), from and against all losses, liabilities, damages, settlements, claims, actions, suits, penalties, fines, costs or expenses (including reasonable attorneys’ fees, experts’ fees and other costs of investigation or defense at any stage of the proceedings) to the extent relating to a Third Party claim, action or demand (any of the foregoing, a “Loss”) arising out of or resulting from: (a) the negligence, recklessness or intentional acts or omissions of the Indemnifying Party or its affiliates, and their respective directors, officers, employees and agents with respect to this Agreement and the Services contemplated hereby; (b) any breach of a representation or warranty of the indemnifying party hereunder; (c) any act or omission by Client that results in DRC submitting any false or fraudulent claim to any governmental payor or private third party payor; and (d) a breach of any applicable law by such Indemnifying Party.

The Parties agree that no payment or other remuneration that is offered, paid, solicited or received hereunder is to improperly induce any person to (i) make referrals for items or services for which payment may be made in whole or in part under Medicare or other Federal Healthcare Programs (as defined in 42 CFR § 1320a-7b(f)); or (ii) purchase, lease, order or arrange for or recommend purchasing, leasing, or ordering any items or services that may be covered by Federal Healthcare Programs.

This Agreement, including and together with any related Order Form, exhibits, schedules, attachments and appendices, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, regarding such subject matter. The Parties acknowledge and agree that if there is any conflict between the terms and conditions of this Agreement and the terms and conditions of any Order Form, the terms and conditions of the Order Form shall supersede and control.

If any term or provision of this Agreement is found by a court of competent jurisdiction to be invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon a determination that any term or provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement to reflect the original intent of the Parties as closely as possible in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

No amendment to or modification of or rescission, termination, or discharge of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party.

No waiver by any Party of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

Client shall not assign, transfer, delegate or subcontract any of its rights or delegate any of its obligations under this Agreement without the prior written consent of DRC. Any purported assignment or delegation in violation of this Section shall be null and void. No assignment or delegation shall relieve the Client of any of its obligations under this Agreement. DRC may assign any of its rights or delegate any of its obligations to any affiliate or to any person acquiring all or substantially all of DRC’s assets without Client’s consent. DRC may use subcontractors to perform Services (or portions thereof); provided, however, that such subcontracting shall not relieve DRC from responsibility for performance of its duties hereunder.

This Agreement is binding on and inures to the benefit of the Parties to this Agreement and their respective permitted successors and permitted assigns.

This Agreement benefits solely the Parties to this Agreement and their respective permitted successors and assigns and nothing in this Agreement, express or implied, confers on any other person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.

The relationship between the Parties is that of independent contractors. The details of the method and manner for performance of the Services by DRC shall be under its own control, Client being interested only in the results thereof. DRC shall be solely responsible for supervising, controlling and directing the details and manner of the completion of the Services. Nothing in this Agreement shall give the Client the right to instruct, supervise, control, or direct the details and manner of the completion of the Services. The Services must meet the Client’s final approval and shall be subject to the Client’s general right of inspection throughout the performance of the Services and to secure satisfactory final completion. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, employer-employee or other form of joint enterprise, employment or fiduciary relationship between the Parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.

This Agreement and all related documents including all exhibits attached hereto, and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute are governed by, and construed in accordance with, the laws of Puerto Rico, without giving effect to the conflict of law’s provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of Puerto Rico.

Each Party irrevocably and unconditionally agrees that it will not commence any action, litigation or proceeding of any kind whatsoever against the other Party in any way arising from or relating to this Agreement, including all exhibits, schedules, attachments and appendices attached to this Agreement, and all contemplated transactions, including contract, equity, tort, fraud and statutory claims, in any forum other than U.S. District Court for the District of Puerto Rico or, if such court does not have subject matter jurisdiction, the courts of Puerto Rico sitting in San Juan, and any appellate court from any thereof. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts and agrees to bring any such action, litigation or proceeding only in U.S. District Court for the District of Puerto Rico or, if such court does not have subject matter jurisdiction, the courts of Puerto Rico sitting in San Juan. Each Party agrees that a final judgment in any such action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.

EACH PARTY ACKNOWLEDGES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT, INCLUDING EXHIBITS, SCHEDULES, ATTACHMENTS, AND APPENDICES ATTACHED TO THIS AGREEMENT, IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING ANY EXHIBITS, SCHEDULES, ATTACHMENTS OR APPENDICES ATTACHED TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY.

The DRC shall not be liable or responsible to Client, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of DRC including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lock-outs, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage, provided that, if the event in question continues for a continuous period in excess of 90 days, Client shall be entitled to give notice in writing to DRC to terminate this Agreement.

Both Parties agree that during the Term, and for two (2) years following the termination of this Agreement or the maximum time period permitted by applicable law, regardless of cause, that neither Party shall directly or indirectly solicit, or cause others to solicit, the employment of any employee of the other Party without the other Party’s expressed prior written consent, and that neither Party shall interfere with the other Party’s relationship with, or endeavor to entice away from the other Party, any person who, on the date of the termination of this Agreement and/or at any time during the one (1) year period prior to the termination of the Term, was a customer of the other Party or otherwise had a material business relationship with the other Party. Nothing herein shall preclude either Party from hiring employees or contractors of the other Party (or its subsidiaries) to the extent such employees or contractors respond, without any solicitation by or on behalf of the hiring party, to advertisements or job openings published or otherwise made generally available to the public by the hiring party.

If Client has contracted a third party provider of services competitive with the Services, at no time will the Client require DRC to train such third party provider’s staff, share DRC’s SOPs and strategies, or perform any activities that could reasonably be considered harmful for DRC.

Each Party shall deliver all notices, requests, consents, claims, demands, waivers, and other communications under this Agreement (each, a “Notice”) in writing and addressed to the other Party at the addresses set forth on the Order Form (or to such other address that the receiving Party may designate from time to time in accordance with this section). Each Party shall deliver all Notices by personal delivery, nationally recognized overnight courier (with all fees prepaid), facsimile or email (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt by the receiving party and (b) if the party giving the Notice has complied with the requirements of this Section.

This Agreement may be executed electronically and in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. Notwithstanding anything to the contrary in Section 11, a signed copy of this Agreement delivered by facsimile, email, or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.

Client shall be solely responsible to verify the rules and regulations for using the Service in accordance with their state and federal laws, including HIPAA and other privacy regulations. Client should make its own independent and informed decision for when and how the Services are utilized and hereby agrees to defend and indemnify DRC for any and all claims, fines, and damages arising out of Services rendered in accordance with this Agreement.

DRC BILLING SERVICES SCHEDULES

  1. “Billing Information” means all billing and encounter information and documentation for all patients of Client, including, but not limited to the name of the patient, patient demographics, insurance information (including a copy or scanned copy of insurance cards along with any required referral or authorization information), the date of service, the nature and extent of services provided, the applicable Current Procedural Terminology (CPT) or International Classification of Diseases (ICD) procedure codes and diagnosis codes (including associated modifiers, if applicable), and any supporting medical information that is necessary to obtain payment or reimbursement for services.
  2. “Business Associate Agreement” means DRC’s standard Business Associate Agreement provided alongside the Original Order Form and incorporated herein by reference.
  3. “Effective Date” means the date set forth on the initial Order Form associated with this Agreement.
  4. “Excluded Codes” means non-industry standard procedures codes for procedures performed by Client that are not billable to a governmental or third-party payor, and which shall be mutually agreed by Client and DRC.
  5. “First Charge Entry Date” means the first date that Client performs charge entry services in the Hosted Programs; the First Charge Entry Date shall be mutually agreed by the parties (and if the parties do not determine such a date, the First Charge Entry Date shall be the date that is 60 days following the Effective Date).
  6. “Final Charge Submission Date” means the last day of the full calendar month following three calendar months after notification of termination is received. For example, if the termination notice is provided on September 30, the Final Charge Submission Date is December 31.
  7. “Law” means any federal or state statute or regulation, and any provider handbook or manual published by the Centers for Medicare & Medicaid Services (CMS), a state Medicaid program or any other government health care benefit program, or other policy enforced by a government entity.
  8. “Monthly Minimum RCM Services Fee” means the Monthly Minimum RCM Services Fee set forth on the Order Form.
  9. “Order Form(s)” means the order form(s) issued by DRC and agreed to by Client pursuant to which Client purchases services or products.
  10. “Patient Balance Management” means the following services:
    1. Patient accounts receivable follow-up, which means generation and mailing of patient statements;
    2. Payment posting, which means the receipt from Client of any patient payments related to time of service payments, payment on patient statements or payment plans, and the entry of relevant data into the Hosted Programs.
    3. For the avoidance of doubt, Patient Balance Management does not include outbound calling to patients; further, in connection with Patient Balance Management, DRC shall act in accordance with DRC’s policies and procedures (which may change from time to time, subject to applicable Law), but shall not file any lawsuit for collection.
  11. “Patient Service Center” means the following services:
    1. Call center for inbound patient inquiries;
    2. Establishment of patient payment plans within DRC’s standard parameters, or parameters mutually agreed by the Client and DRC, if applicable; and
    3. Processing of payments made by patients using a credit card, if Client uses credit card functionality that is integrated into the Hosted Programs.
  12. “Percentage Fee” means the product of (i) the Percentage Rate, multiplied by (ii) all payments received by Client during the previous month relating to the RCM Services .
  13. “Percentage Rate” means the Percentage Rate set forth on the Order Form.
  14. “Revenue Cycle Management” means the following services:
    1. Standard implementation and the establishment of electronic data interface agreements between Client and applicable carriers;
    2. Client access to and use of the following Hosted Programs;
    3. Claims submission, which means the submission (in either electronic or paper format) to governmental and private third-party payors of charges, exclusions, denials, and secondary claims within statutory periods;
    4. Insurance accounts receivable follow up, which means appropriate correspondence with governmental and private third-party payors (including follow-up, research, and resubmission of denials), customer service (e.g., payor billing inquiries) and claims appeals;
    5. Payment posting, which means the receipt from Client of EOBs or other patient payment information (e.g.,copayment information), receipt from private third-party payors of electronic remittance advices and other 835 files, and the entry of relevant data into the Hosted Programs;
    6. Provision of the following standard month-end reports: account receivables summaries, productivity reports for procedures and providers, month-end close report (i.e., charges, payments, adjustments, and standing accounts receivable) and management summary;
    7. Periodic updating of the master files of CPT codes and ICD codes within the Hosted Programs;
    8. Refund processing, which means posting of Client’s refund check to the Hosted Programs; and
    9. Provide continuous feedback on issues adversely affecting reimbursement as well as helping identify processes/procedures for positively impacting reimbursement and advise the client on why a claim has been denied or rejected and work to prevent similar claims from being rejected in the future.
  15. “Third Party Services” has the meaning given to such terms into the Agreement.
  16. “Termination Date” means the last day of the second month following the month in which the Final Charge Submission Date occurs. For example, if the Final Charge Submission date is December 31, the Termination Date will be February 28.
  17. “Wind Down Period” means the period between Final Charge Submission Date and the Termination Date.

  1. Client is solely responsible for the accuracy and completeness of any and all Billing Information, whether input by Client into the Hosted Programs, or provided to DRC hereunder. Client shall only submit (and shall only cause DRC to submit) claims for reimbursement that Client believes are true, correct and in accordance with applicable Law and health plan coverage requirements. Without limiting the foregoing, Client shall comply with applicable Law and official diagnosis and procedure code manuals when assigning CPT and ICD codes to items and services provided to Client’s patients. Client acknowledges and agrees that DRC does not assign diagnosis and procedure codes to items and services provided by Client. Client agrees to promptly correct and resubmit any Billing Information and claims which DRC returns due to a compliance related error. If any investigation is initiated or if any action is brought by any individual, company or entity whatsoever regarding any of the claims filed by DRC on behalf of Client, then Client agrees to cooperate fully in any such investigation or action and shall provide all relevant supporting documentation to support the claim(s) filed.
  2. From and after the First Charge Entry Date, Client shall provide to DRC (i) such Billing Information as may be requested by DRC in order to perform the RCM Services hereunder, and (ii) with such information and Client signatures as may be necessary in order for DRC (x) to assist Client in properly completing electronic data interchange agreements, and (y) to be able to obtain from governmental payors or private third party payors information regarding claims submitted to such payors (including carrier website access). Client shall not take any action that could reasonably be expected to interfere with DRC’s performance of the RCM Services.
  3. Client shall procure and maintain current National Provider Identifiers and other necessary provider numbers for all Client’s physicians, nurse practitioners, physician assistants and other professional employees and contractors providing medical or other professional services, as necessary or appropriate to allow DRC to obtain payment or reimbursement from governmental payors and private third party payors, and Client will provide DRC with all such information, and any updates or modifications to such information, within the timeframe reasonably requested by DRC.
  4. Notwithstanding the authority granted to DRC herein, DRC and Client agree that Client shall retain the authority to direct the medical and ethical aspects of Client’s medical practices and shall retain control of all aspects of its business and affairs that may not legally be carried on by persons other than persons who are duly licensed to practice medicine or surgery in the state or states in which such person’s practice.

  1. All reimbursements from all governmental (including Medicare and Medicaid) payors, private third-party payors, and patient payments shall be received directly by Client. Client shall promptly send all insurance correspondence and EOBs (or complete copies of these documents) to DRC. Client agrees to follow any control procedures implemented by DRC that are designed to ensure the proper transmission and receipt of such information. Client agrees to provide DRC with audit control figures containing all patient visits and payments collected so that DRC may balance charges and payments posted by DRC back to Client totals. In the event that Client utilizes a lockbox to receive insurance payments or patient payments, Client shall give DRC proper access to such lockbox to enable DRC to retrieve documents and images sent to such lockbox.

  1. Fees and Invoicing.
    1. Client shall pay all one-time, per-use and monthly fees set forth on the Order Form (including fees for patient statements and letters and monthly subscription fees payable by Client in cases where Client has elected to subscribe to certain hosted programs on a monthly basis); in addition, Client shall pay all amounts set forth on the Order Form, as calculated herein, as applicable. The fees included on the Order Form(s) do not include taxes; there shall be added to all payments amounts equal to any applicable taxes levied or based on this Agreement, exclusive of taxes based on DRC’s net income.
    2. All fees for one-time services (e.g., implementation fees) are due upon acceptance of any Order Form(s) and prior to delivery of the applicable service. All monthly or recurring fees shall be invoiced monthly in arrears (on or about the 10th day of each calendar month) and shall be debited from the Client’s bank account on the 20th day of each calendar month (or, if such day is not a business day, the next following business day). Invoicing for monthly or recurring fees will begin in the month following the month in which the Effective Date occurs.
    3. Without limiting the additional fees and charges that shall be payable by Client, if applicable, DRC shall have the right, exercisable in its sole and absolute discretion, to suspend the provision of RCM Services hereunder, as well as Client’s access to, and use of, the hosted programs and the third-party services, in the event that Client has not paid any amounts due hereunder by the time such payment is due.
  2. Calculation of Percentage Fee.
    1. Client shall pay DRC an amount equal to the greater of (x) the Monthly Minimum RCM Services Fee (if any), or the Percentage Fee.
  3. General Terms.
    1. DRC does not guarantee any minimum amount of collections from the provision of RCM Services under the Agreement.
    2. Refund amounts (monies returned to any governmental payor or private third-party payor, or patients) made by Client as requested by DRC, shall be deducted from the total payments on which the Percentage Fee is calculated.
    3. The Percentage Fee shall only be applied to services and procedures performed on or after the First Charge Entry Date and until the Final Charge Submission Date.
    4. The Percentage Fee shall be based on all amounts received by either Client or DRC (on behalf of Client), in either case, from governmental payors or private third-party payors (including all payments and co-payments collected at Client’s location, and any amount received by Client related to patient accounts under capitated contracts).
    5. RCM Services are not provided with respect to procedures coded by the Client to the Excluded Codes (if applicable); accordingly, the Percentage Fee shall in all cases be calculated excluding any amounts received in respect of procedures coded by the Client to the Excluded Codes. Client shall not code any procedure to an Excluded Code except those procedures mutually agreed by Client and DRC.

  1. Following delivery of a notice of termination or non-renewal, the Agreement shall remain in effect until the Termination Date, as follows: (i) Client shall perform charge entry services through the Final Charge Submission Date and perform all its other obligations hereunder until the Termination Date, and (ii) DRC shall perform the RCM Services until the Termination Date. Client understands and agrees that claims submitted prior to the Termination Date may not be fully resolved as of the Termination Date. Client’s access to and use of the hosted programs and third-party services shall terminate on the Termination Date.
  2. If Client terminates this Agreement prior to the end of the Term for any reason other than DRC’s breach of the Agreement, or DRC terminates this Agreement due to Client’s breach of the Agreement, then, in any such case, Client shall pay to DRC a buy-out fee in an amount equal to the average monthly fee multiplied by the number of full months remaining from the Termination Date and the remaining Term of the Agreement, it being understood that if Client terminates this Agreement prior to 60 days following the First Charge Entry Date, then the average monthly fee shall be equal to the reasonably estimated monthly fee that would have been payable under the Agreement following such date. Client shall also be obligated to pay the amount contemplated by this Section in the event of any reduction in the number of charges delivered to DRC by more than fifty percent (50%).

  1. Compliance with Anti-Assignment Laws. The parties understand, acknowledge, and agree that, notwithstanding anything herein to the contrary, neither DRC, nor any affiliate or agent of DRC, has the ability to either (i) receive payments of Medicare reimbursement directly from CMS, or (ii) convert any payment of benefits assigned to Client to DRC’s, such affiliate’s or such agent’s own use and control without the payment first passing through the control of Client.
  2. Standards, Accreditation, Licensure. Client shall ensure that it meets all medical practice, licensure, and ethical standards, which are pertinent to its activities or which by contract it has agreed to abide. Without limiting the foregoing, Client shall ensure that each physician employed by Client and any other professional employees and contractors of Client providing medical or other professional services has an unrestricted license to practice medicine or his or her other profession in the state(s) in which they practice, and Client will inform DRC immediately of any change in the status of any such unrestricted license.

  1. This AMA CPT Addendum (“CPT Addendum”) by and between DRC and Client, applies to the use of any Hosted Programs that include access to the master database of the American Medical Association (“AMA”) CPT Codes in electronic form (“CPT”) and is required by the AMA. Capitalized terms used but not defined in this CPT Addendum shall have the meaning ascribed to such terms in the Agreement.

Client hereby acknowledges and agrees that:

  1. . DRC’s provision of updated versions of CPT depends upon the AMA continuing to permit DRC to distribute such content;
  2. Client’s use of CPT is non-transferable, non-exclusive, and for the sole purpose of internal use in the territory and language as designated in the Agreement (and if no territory or language is designated, then the territory shall be the United States of America and the language shall be English);
  3. Client is prohibited from using CPT or information contained therein in any public computer-based information system or public electronic bulletin board (including the Internet and World Wide Web);
  4. Client is prohibited from publishing, translating, or transferring possession of CPT or any copy or portion thereof;
  5. Client is prohibited from creating derivative works based on CPT, or selling, leasing, or licensing it or otherwise making CPT or any portion thereof available to any unauthorized party;
  6. Client shall ensure that anyone who has authorized access to the Hosted Program(s) complies with the provisions of this CPT Addendum;
  7. Certain Hosted Product(s) include CPT which is commercial technical data and/or computer databases and/or commercial computer software and/or commercial computer software documentation, as applicable, which were developed exclusively at private expense by the American Medical Association, 515 North State Street, Chicago, Illinois,
    60610. U.S. Government rights to use, modify, reproduce, release, perform, display, or disclose these technical data and/or computer databases and/or computer software and/or computer software documentation are subject to the limited rights restrictions of DFARS 252.227-7015(b)(2) (November 1995) and/or subject to the restrictions of DFARS 227.7202-1(a) (June 1995) and DFARS 227.7202-3(a) (June 1995), as applicable for U.S. Department of Defense procurements and the limited rights restrictions of FAR 52.227-14 (June 1987) and/or subject to the restricted rights provisions of FAR 52.227-14 (June 1987) and FAR 52.227-19 (June 1987), as applicable, and any applicable agency FAR Supplements, for non-Department of Defense Federal procurements;
  8. CPT is provided “as is” without any liability to DRC or the AMA, including, without limitation, no liability for consequential or special damages or lost profits for sequence, accuracy or completeness of data, or that it will meet Client’s requirements, and that DRC’s and AMA’s sole responsibility is to use reasonable efforts for Client to correct defects or replace the CPT database; AMA disclaims any liability for any consequences due to use, misuse or interpretation of information contained or not contained in CPT;
  9. In the event that a provision of this CPT Addendum is determined to violate any law or is unenforceable, the remainder of this CPT Addendum shall remain in full force and effect.

BUSINESS ASSOCIATES AGREEMENT

This Business Associate Agreement is entered into and made a part of all agreements, existing now or in the future (collectively the “Agreement”) by and between Client (“Covered Entity”) and DRC (“Business Associate”) as of the Effective Date.
WHEREAS, Congress enacted the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), that protects the confidentiality of health information;
WHEREAS, pursuant to HIPAA, the United States Department of Health and Human Services (“HHS”) promulgated Breach Notification Standards, Privacy Standards, and Security Standards (collectively, the “HIPAA Standards”), each as defined below, governing confidential health information;
WHEREAS, Business Associate and Covered Entity have entered into one or more contractual relationships (the “Underlying Agreement(s)”) which require Business Associate to create, receive, maintain, or transmit Protected Health Information on Covered Entity’s behalf; and
WWHEREAS, in order to comply with the Business Associate requirements of HIPAA and its implementing regulations, Covered Entity and Business Associate must enter into an agreement that governs the Uses and Disclosures of such Protected Health Information by Business Associate.
NOW, THEREFORE, in consideration of the foregoing recitals, the mutual promises and covenants set forth herein, and other good and valuable consideration, the receipt, and sufficiency of which are hereby acknowledged, the parties agree as follows:

General Definititions.The following terms used in this Agreement shall have the same meaning as those terms in the HIPAA Rules: Data Aggregation, Designated Record Set, Disclosure, Health Care Operations, Individual, Minimum Necessary, Notice of Privacy Practices, Protected Health Information, Security Incident, Subcontractor, and Use.

Specific Definitions. The following terms shall have the meaning set forth below:

  1. Breach. “Breach” means the unauthorized acquisition, access, use, or disclosure of Protected Health Information, as defined below, which compromises the security or privacy of such information, except where an unauthorized person to whom such information is disclosed would not reasonably have been able to retain such information.
  2. Business Associate. “Business Associate” shall generally have the same meaning as the term “business associate” at 45 C.F.R. 160.103.
  3. C.F.R. “C.F.R.” means the Code of Federal Regulations.
  4. Covered Entity. “Covered Entity” shall generally have the same meaning as the term “covered entity” at 45 C.F.R. 160.103.
  5. Designated Record Set. “Designated Record Set” has the meaning assigned to such term in 45 C.F.R. 164.501.
  6. Discovery. “Discovery” shall mean the first day on which a Security Breach is known to Business Associate (including any person, other than the individual committing the breach, that is an employee, officer, or other agents of Business Associate), or should reasonably have been known to Business Associate, to have occurred.
  7. Individual. “Individual” shall have the same meaning as the term “individual” in 45 C.F.R. 160.103 and shall include a person who qualifies as a personal representative in accordance with 45 C.F.R. 164.502 (g).
  8. Network. “Network” shall have the same meaning given to such term as defined in 45 C.F.R. 160.103.
  9. Protected Health Information. “Protected Health Information” (PHI) shall have the same meaning as the term “Protected Health Information” in 45 C.F.R. § 160.103, limited to the information created or received by Business Associate from or on behalf of Covered Entity.
  10. Required by Law. “Required by Law” shall have the same meaning as the term “required by law” in 45 C.F.R. 164.103.
  11. Secretary. “Secretary” shall mean the Secretary of the U.S. Department of Health and Human Services or his/her federal or state designee.
  12. Security Breach. “Security Breach” means the unauthorized acquisition, access, use, or disclosure of PHI which compromises the security or privacy of such information, except where an unauthorized person to whom such information is disclosed would not reasonably have been able to retain such information. Security Breach does not include any unintentional acquisition, access, or use of PHI by an employee or individual acting under the authority of Business Associate if such acquisition, access or use was made in good faith and within the course and scope of the relationship with Business Associate; and such information is not further acquired, accessed, used or disclosed by any person.
  13. Security Incident. “Security Incident” shall have the same meaning as the term “security incident” in 45 C. F. R. 164.304.
  14. Unsecured Protected Health Information. “Unsecured Protected Health Information” means Protected Health Information that is not secured through the use of a technology or methodology specified by guidance issued by the Secretary from time to time.
  15. Unless otherwise defined in this Agreement, all capitalized terms used in this Agreement have the meanings scribed in the HIPAA Rules, provided, however, that “PHI” shall mean Protected Health Information, as defined in 45 C.F.R. § 160.103, limited to the information Business Associate received from or created or received on behalf of Covered Entity as Covered Entity’s Business Associate. “Administrative Safeguards” shall have the same meaning as the term “administrative safeguards” in 45 C.F.R. § 164.304, with the exception that it shall apply to the management of the conduct of Business Associate’s workforce, not Covered Entity’s workforce, in relation to the protection of that information.

  1. Not Use or Disclose PHI other than as permitted or required by this Agreement or as Required by Law.
  2. Use reasonable appropriate safeguards and comply with Subpart C of 45 C.F.R. Part 164 with respect to electronically protected health information, to prevent unauthorized use or disclosure of protected health information other than as provided for by the Agreement.
  3. Report to Covered Entity any Security Incident of which Business Associate becomes aware, including breaches of Unsecured PHI as required at 45 C.F.R. 164.410.
  4. In accordance with 45 C.F.R. 164.308(b)(2), 164.314(a)(2)(i)(B) and (iii), and 164.502(e)(1)(ii), if applicable, ensure that any subcontractors that create, receive, maintain, or transmit protected health information on behalf of the Business Associate agree to comply with the same restrictions, conditions, and requirements that apply to the Business Associate with respect to such information by entering into a contract or other arrangement that complies with 45 C.F.R. 164.314.
  5. Business Associate shall provide Covered Entity, within a reasonable time, with copies of all relevant agreements required to be maintained by Business Associate under the HIPAA Rules with respect to the PHI, and that are entered into between Business Associates and any subcontractor.
  6. Within fifteen (15) calendar days of receiving a written request from Covered Entity, make available PHI in a Designated Record Set to the Covered Entity as necessary to satisfy Covered Entity’s obligations under 45 C.F.R. 164.524.
  7. Within thirty (30) calendar days of receiving a written request from Covered Entity, make PHI available to the Covered Entity for amendment(s) to PHI in a Designated Record Set as directed or agreed to by the Covered Entity pursuant to 45 C.F.R. 164.526, or take other measures as necessary to satisfy Covered Entity’s obligations under 45 C.F.R. 164.526.
    B Maintain and make available the information required to provide an accounting of Disclosures to the Covered Entity as necessary to satisfy Covered Entity’s obligations under 45 C.F.R. 164.528.
  8. Within thirty (30) days of receiving a written request from Covered Entity, make available to the Covered Entity the information required for the Covered Entity to provide an accounting of disclosures of PHI as required by the Privacy Rule. Business Associate shall provide the Covered Entity with the following information: (i) the date of the disclosure, (ii) the name of the entity or person who received the PHI, and if known, the address of such entity or person, (iii) a brief description of the PHI disclosed, and (iv) one of the following, as applicable: (a) a brief statement of the purpose of such disclosure which includes an explanation that reasonably informs the individual of the basis for such disclosure or in lieu of such statement, (b) a copy of a written request from the Secretary of Health and Human Services to investigate or determine compliance with HIPAA; or (c) a copy of the individual’s request for an accounting.
  9. To the extent, the Business Associate is to carry out one or more of Covered Entity’s obligation(s) under Subpart E of 45 C.F.R. Part 164, comply with the requirements of Subpart E that apply to the Covered Entity in the performance of such obligation(s).
  10. Make its internal practices, books, and records available to the Secretary for purposes of determining compliance with the HIPAA Rules.
  11. Upon the expiration or termination of an Underlying Agreement, and to the extent consistent with record retention requirements of applicable law and such Underlying Agreement, return to Covered Entity or destroy all PHI, including such information in possession of Business Associate’s subcontractors, as a result of the Underlying Agreement at issue and retain no copies, if it is feasible to do so. If return or destruction is infeasible, Business Associate agrees to extend all protections, limitations, and restrictions contained in this Agreement to Business Associate’s Use and/or disclosure of any retained PHI, and to limit further Uses and/or Disclosures to the purposes that make the return or destruction of the PHI infeasible. This provision shall survive the termination or expiration of this Agreement and/or any Underlying Agreement.
  12. Use reasonable commercial efforts to mitigate any harmful effect that is known to Business Associate of a Use or Disclosure of PHI by Business Associate in violation of the requirements of this Agreement.
  13. Implement Administrative Safeguards, Physical Safeguards, and Technical Safeguards (“Safeguards”) that reasonably and appropriately protect the Confidentiality, Integrity, and Availability of PHI as required by 45 C.F.R. Part 164 Subpart C (“Security Rule”).
  14. Otherwise comply with the applicable requirements of 45 C.F.R. 164.314 and 164.316, including the HIPAA Omnibus Rule.
  15. Report to Covered Entity any successful Security Incident of which Business Associate becomes aware; provided, however, that with respect to attempted unauthorized access, Use, Disclosure, modification, or destruction of information or interference with system operations in an information system affecting PHI, such report to Covered Entity will be made available upon written request.

  1. 4.1 General Use and Disclosure. Except as otherwise limited in this Agreement, Business Associate may access, store, Use or Disclose PHI as necessary to perform the services, functions, tests or activities for, or on behalf of, Covered Entity as specified in the Underlying Agreement(s), or other professional or other services agreement(s) with Covered Entity, as required or permitted by applicable law and the Covered Entity’s Minimum Necessary policies and procedures.
  2. 4.2 Specific Use and Disclosure Provisions.
    1. Except as otherwise limited in this Agreement, Business Associate may not Use or Disclose PHI in a manner that would violate Subpart E of 45 C.F.R. Part 164 if done by Covered Entity.
    2. Business Associate may use, create, format, edit, receive, maintain, transmit, and/or disclose the PHI as permitted or required by the Underlying Agreement.
    3. Business Associate may use PHI for the proper management and administration of the Business Associate or carry out the legal responsibilities of the Business Associate.
    4. Business Associate may disclose PHI for the proper management and administration of Business Associate or to carry out the legal responsibilities of the Business Associate, provided the Disclosures are required or permitted by law, or Business Associate obtains reasonable assurances from the person to whom the information is disclosed that the information will remain confidential and used or further disclosed only as required by law or for the purposes for which it was disclosed to the person, and the person notifies Business Associate of any instances of which it is aware in which the confidentiality of the information has been breached.
    5. Except as otherwise limited in this Agreement, Business Associate may use Protected Health Information to provide data aggregation services to Covered Entity as permitted by 42 C.F.R. 164.504(e)(2)(i)(B).
    6. Business Associate may use Protected Health Information to report a violation of law to appropriate Federal and State authorities, consistent with 42 C.F.R. 164.502 (j)(l).

  1. 5.1 Provisions for Covered Entity to Inform Business Associate of Privacy Practices and Restrictions.
    1. Covered Entity shall notify Business Associate of any limitation(s) in its Notice of Privacy Practices of Covered Entity in accordance with 45 C.F.R. 164.520, to the extent that such limitation may, or has the potential to, affect Business Associate’s Use and Disclosure of PHI.
    2. Covered Entity shall notify Business Associate of any changes in, or revocation of, the permission by an Individual to Use or Disclose his or her PHI, to the extent that such changes may affect Business Associate’s Use or Disclosure of PHI.
    3. Covered Entity shall notify Business Associate of any restriction on the Use or Disclosure of PHI that Covered Entity has agreed to or is required to abide by under 45 C.F.R. 164.522, to the extent that such restriction may affect Business Associate’s Use or Disclosure of PHI.
    4. Covered Entity shall comply will all applicable notification requirements in the event of a Breach, or possible Security Breach, relating to PHI or Unsecured Protected Health Information, which may affect Business Entity’s rights and obligations herein or under the Underlying Agreement.
    5. Covered Entity shall implement, use, and maintain all commercially reasonable efforts to protect the Unsecured Protected Health Information and PHI that is used or accessed by Business Associate.
    6. Covered Entity shall ensure that all employees, whether full-time or part-time and whether permanent or temporary, contractors, agents, subcontractors, officers, directors, affiliates, vendors, and any other person or entity that has or may have access to Covered Entity’s PHI and Unsecured Protected Health Information, comply with all applicable HIPAA Standards/Rules.
    7. Covered Entity, at its sole expense, shall maintain proper insurance to cover a Breach.
    8. Otherwise, comply with all of the applicable requirements of the HIPAA Rules.
  2. 5.2 Duties of Covered Entity.
    1. Covered Entity shall comply with all HIPAA Rules.
    2. Covered Entity shall ensure that all employees, whether full-time or part-time and whether permanent or temporary, contractors, agents, subcontractors, officers, directors, affiliates, vendors, and any other person or entity that has or may have access to Covered Entity’s PHI and Unsecured Protected Health Information, comply with all HIPAA standards.
    3. Covered Entity shall designate a person(s) or entity to implement policies and procedures to prevent, detect, monitor, contain, and correct security violations relating to PHI or Unsecured Protected Health Information.
    4. Covered Entity shall at all times maintain a proper router, password management, firewalls, and anti-virus software of all equipment that contains PHI or Unsecured Protected Health Information.
    5. Covered Entity, at its sole expense, shall maintain proper insurance to cover a Breach.
    6. Covered Entity shall comply will all applicable notification requirements in the event of a Breach, or possible Security Breach, relating to PHI or Unsecured Protected Health Information, which may affect Business Entity’s rights and obligations herein.
  3. 5.3 Permissible Requests by Covered Entity. Covered Entity shall not request Business Associate to Use or Disclose PHI in any manner that would not be permissible under Subpart E of 45 C.F.R. Part 164 if done by Covered Entity.

  1. 6.1 Termination by Time. The provisions of this Agreement shall take effect on the Effective Date, and shall terminate when all of the PHI provided by Covered Entity to Business Associate, or created or received by Business Associate on behalf of Covered Entity, is destroyed or returned to Covered Entity, or, if it is infeasible to return or destroy PHI, protections are extended to such information, in accordance with the provisions in this Section.
  2. 6.2 Termination by Business Associate. Business Associate may terminate this Agreement, effective immediately, if:
    1. Covered Entity is named as a defendant in a criminal proceeding for a violation of HIPAA Rules.
    2. A finding or stipulation that Covered Entity has violated any standard or requirement of the HIPAA Rules.
    3. Covered Entity is in breach of any term or condition of the Agreement or the Underlying Agreement, including exhibits thereto, whether or not such breach is material, and whether or not that breach, or any other breach, was previously waived.
    4. Failure on the part of Covered Entity to pay the fees, expenses, and costs billed to Covered Entity by Business Associates.
    5. Failure on the part of the parties to agree to the terms and conditions of the renewal or reinstatement of the Agreement or the Underlying Agreement.
  3. 6.3 Termination by Covered Entity. Without limiting the termination rights of the parties pursuant to the Agreement, Covered Entity may terminate upon a material breach of the Agreement by Business Associate. Upon Covered Entity’s knowledge of a material breach by Business Associate, Covered Entity shall:
    1. Provide a reasonable opportunity for Business Associate to cure such breach or end the violation; and
    2. If Business Associate does not cure the breach or end the violation within a reasonable time, the Covered entity may:
      1. Immediately terminate the Agreement and any underlying agreement pursuant to which the Business Associate accesses the PHI of Covered Entity if the cure of such breach is not possible; and
      2. If neither termination nor cure is feasible, Covered Entity shall report the violation to the Secretary to the extent required by the HIPAA Rules.
  4. 6.4 Effect of Termination.
    1. Upon termination of this Agreement for any reason, Business Associate, with respect to PHI received from Covered Entity, or created, maintained, or received by Business Associate on behalf of Covered Entity, shall:
      1. Retain only that PHI which is necessary for Business Associate to continue its proper management and administration or to carry out its legal responsibilities;
      2. Return to Covered Entity or, if agreed in a writing signed by Covered Entity, destroy the remaining PHI that Business Associate still maintains in any form;
      3. Continue to use appropriate safeguards and comply with Subpart C of 45 C.F.R. Part 164 with respect to electronic PHI to prevent use or disclosure of the PHI, other than as provided for in this Section, for as long as Business Associate retains the PHI;
      4. Not use or disclose the PHI retained by Business Associate other than for the purposes for which such PHI was retained and subject to the same conditions set out at paragraphs (b) and (c) of section 4.2 which applied prior to termination; and
      5. Return to Covered Entity or, if agreed to in writing by Covered Entity, destroy the PHI retained by Business Associate when it is no longer needed by Business Associate for its proper management and administration or to carry out its legal responsibilities.
    2. Survival. The obligations of Business Associate under this Section shall survive the termination of this Agreement.

In no event shall Business Associate’s total liability, exclusive of any applicable insurance coverage, if any, whether in tort, contract or otherwise, for any direct, indirect, actual, contemplated, foreseen, exemplary, incidental, or consequential damages, including any duty to indemnify, hold harmless and defend, from any and all claims, liabilities, losses, costs, expenses, disputes, controversies or suit brought by Covered Entity, any patient, including patient’s heir or assigns, or any third party (the “Claim”) against Business Associate exceed the total amount of fees paid pursuant to the Underlying Agreement by Covered Entity to Business Associate in the six (6) months preceding the notice of any Claim.

Covered Entity agrees to indemnify, hold harmless and defend (at Business Associate’s election) Business Associate, its officers, agents or employees from and against all controversies, liabilities, demands, Claim, penalties, damages, losses, costs and expenses, (including costs and reasonable attorneys’ fee), or claims, for violations of State or federal law or injury or damages that are caused by or result from the acts or omissions of Covered Entity, its officers, employees, agents and subcontractors with respect to the use, maintain, store, modify, transmit and/or disclosure of Covered Entity’s PHI, whether based, in whole or in part, on a violation or purported violation of the Agreement, HIPAA Rules, the Federal laws relating to the confidentiality of drug and/or substances abuse (42 C.F.R. §§ 2.1, et seq.), or other State or Federal laws regarding the privacy of patient health care records.

Any notices or communications to be given under the terms of this Agreement shall be made to the addresses given in the signature page, below, via certified mail return receipt requested. Each party named above may change its address upon thirty (30) days written notice to the other party.

  1. Regulatory References. A reference in this Agreement to a section in the HIPAA Rules means the section as in effect or as amended.
  2. Amendment. This Agreement shall be automatically amended to implement the requirements of any amendment to HIPAA or other applicable state or federal laws and ensure that the Parties remain in compliance with the law, effective upon the effective date of this Agreement.
  3. Interpretation. The terms of this Agreement shall prevail in the case of any conflict with the terms of any Underlying Agreement to the extent necessary to allow Covered Entity to comply with the HIPAA Rules. Any ambiguity in this Agreement shall be resolved to permit Covered Entity to comply with the HIPAA Rules.
  4. No Assignment. The rights and obligations created by this Agreement shall not be assigned by Covered Entity without prior written approval from Business Associate.
  5. Governing Law/Venue. This Agreement shall be governed by and construed in accordance with the same internal laws and venue provisions as that of the applicable Underlying Agreement.
  6. Authorization. The signatories below represent and warrant that they are duly authorized representatives of the parties and have full authority to enter into this Agreement on behalf of their respective parties.
  7. Headings. The headings in this Agreement are for convenience only and shall not affect the interpretation hereof.
  8. Sole Agreements. This Agreement together with the Underlying Agreement, and exhibits thereto, are the sole agreements between the Parties relating to the subject matter hereof and supersede all prior understanding, writings, proposals, advertisements, notices, representations, promises or communications, oral or written, of either party.
  9. Agency. For purposes of this Agreement, Business Associate is not considered an “agent” of Covered Entity in accordance with the Federal common law of agency.