Terms and Conditions

Definitions

Company means docero, its officers, members, agents, successors and assigns.

Client means the person, or practice whose name and other particulars are set out in the Project Proposal and Order Form.

Agreement means the Project Proposal, Order Form and any other attached documents.

Project means the scope and purpose of the Client’s identified work product as described in the Project Proposal.

Services means all services and the work product to be provided to Client by Company as described and otherwise further defined in the Project Proposal.

Final Deliverables means the final versions of Deliverables provided by Company and accepted by Client.

Deliverables means the services and work product specified in the Project Proposal to be delivered by Company to Client.

Client Content means all materials, writing, images or other creative content provided by Client used in preparing or creating the Deliverables.

Third Party Materials means proprietary third party materials which are incorporated into the Final Deliverables, including without limitation stock photography, illustration, and Company authored content.

Designer Tools means all design tools developed and/or used by Company in performing the Services, including pre-existing and newly developed software including source code, Web authoring tools, type fonts, and application tools, together with any other software, or other inventions whether or not patentable, and general non-copyrightable concepts such as website design, architecture, layout, navigational and functional elements.

Professional services

Company shall perform the services listed in the Project Proposal.

Proposal

The terms of this Agreement expires thirty business days (30) after being submitted to Client. If this Agreement expires, Company may modify the Agreement and resubmit it to Client.

Compensation

Fees. Client agrees to pay Company the Fees listed in the Project Proposal, including all applicable taxes.

Additional Costs: Pricing in the Project Proposal includes only Company fees. Any other costs incurred outside the scope of work defined in the Project Proposal will be billed to Client. 

Hosting Final Deliverables: Company will host the Final Deliverables on Company web space while the Project is under construction. If the Final Deliverables are not completed by the completion date listed in the Project Proposal, and the delay is not caused by Company, Client agrees to pay Company one hundred dollars ($100) per month for hosting until the Final Deliverables are approved to be pushed to a live web server.

Payment

Payment Schedule: If the Final Deliverables are completed by the completion date listed in the Project Proposal, but not approved by Client, and the delay is not caused by Company, Client agrees to pay Company the remaining balance of the total fees as agreed to in the Project Proposal.

Invoices: All invoices are payable within thirty business days (30) of receipt. Invoices shall list any expenses and additional costs as separate items.

Late payment

Late Fee: A monthly service fee of one and one half percent (1.5 %), or the maximum allowed by law, is payable on all overdue balances.

Crediting Late Payments: Payments will be credited to late payments first, then to unpaid balances.

Collection Expenses: Client shall pay all collection or legal fees caused by late payments.

Withholding Delivery: Company may withhold delivery and transfer of ownership of any current work if accounts are not current or overdue invoices are not paid in full.

Withholding License: All grants of any license to use or transfer ownership of any intellectual property rights under this Agreement are conditioned on full payment, including all outstanding Additional Costs, Expenses, Fees, or any other charges.

Changes to project scope

Change Request: If Client wants to change the Scope of Work after acceptance of this Agreement, Client shall send Company a written Change Order describing the requested changes in detail. Within five business days (5) of receiving a Change Order, Company will respond with a statement proposing additional fees, changes to delivery dates, and any modification to the Terms and Conditions. Company will evaluate each Change Order at its standard rate and charges.

Major Change: If Client requests are at or near fifteen percent (15%) of the time required to produce Deliverables Company shall be entitled to submit a new and separate Proposal to Client for written approval. Company shall not begin work on the revised services until a fully signed revised proposal, including any additional fees are received.

Minor Change: If Client requests are not Major Changes, Client will be billed on a time and materials basis at Company hourly rate of two hundred dollars ($200) per hour. Such charges shall be in addition to all other amounts payable under this Agreement, despite any maximum budget, contract price or final price identified. Company may extend or modify any delivery schedule or deadlines in the Agreement as may be required by such changes.

Acceptance/Rejection: Client will have five (5) days to respond in writing accepting or rejecting the new proposal. If Client rejects the proposal, Company will not be obligated to perform any services beyond those in the original Agreement.

Delays

Designer Delays: Company shall use all reasonable efforts to meet the Work Plan and Milestones delivery schedule. Company may extend the due date for any Deliverable by giving written notice to Client. The total of all extensions shall not exceed sixty days.

Client Delays: Client shall use all reasonable efforts to provide needed information, materials and approvals. Any delay by Client will result in a day-for-day extension of the due date for all Deliverables.

General Delays: Any delay caused by conditions beyond the reasonable control of the parties shall not be considered a breach and will result in a day-for-day extension any performance due. Each party shall use reasonable efforts to notify the other party, in writing, of a delay. Conditions beyond the reasonable control of the parties include, but are not limited to, natural disasters, power failure, fire, flood, acts of God, and labor disputes.

Evaluation and acceptance

Testing: Company will test and correct Deliverables using commercially reasonable efforts before providing Deliverables to Client.

Approval Periods: Client shall, within ten business days (10) after receiving each Deliverable, notify Company in writing of any failure to comply with the specification of the Project Proposal or of any other objections, corrections or changes required. Company shall, within five business days (5) of receiving Clients notification, correct and submit a revised Deliverable to Client. Client shall, within five business days (5) of receiving a revised Deliverable, either approve the corrected version or make further changes. All objections, corrections and changes shall be subject to the terms and conditions of this Agreement.

Client responsibilities

Client acknowledges that it is responsible for performing the following in a reasonable and timely manner: (a) Provide Client Content in a form suitable for use in the Deliverables without further preparation by Company, unless otherwise specified in the Project Proposal; (b) Proofread all Deliverables. Client will be charged for correcting errors after the acceptance of any Deliverable; (c) Make decisions regarding other parties.

Accreditation and promotion

Accreditation: Company shall be entitled to place accreditation, as a hyperlink or otherwise, in the form, size and location as incorporated by Company in the Deliverables on each page of the Final Deliverables.

Promotion: Company retains the right to reproduce, publish and display the Deliverables in the Company portfolios and websites, galleries, design periodicals and other media or exhibits for the purposes of recognition of creative excellence or professional advancement, and to be credited with authorship of the Deliverables in connection with such uses.

Promotional Approval: Either party, subject to the other’s reasonable approval, may describe its role in the Project on its website and in other promotional and marketing materials, and, if not expressly objected to, include a link to the other party’s website.

Confidential information

Client’s “Confidential Information” includes information that Company should reasonably believe to be confidential. Company “Confidential Information” includes the source code of any Designer Tools. All material considered confidential by either party shall be designated as confidential. Confidential Information shall not be disclosed to third parties and shall only used as needed to perform this Agreement. Confidential Information shall not include any information that is already known by the recipient, becomes publicly known through no fault of the recipient, or is received from a third party without a restriction on disclosure.

Relationship of the parties

Independent Contractor: Company is an independent contractor. Company shall determine, in its sole discretion, the manner and means by which the Services are accomplished. No agency, partnership, joint venture, or employee-employer relationship is intended or created by this Agreement. Neither party is authorized to act as agent or bind the other party except as expressly stated in this Agreement. Company and the work product or Deliverables prepared by Company shall not be deemed a work for hire as defined under Copyright Law. All rights granted to Client are contractual in nature and are expressly defined by this Agreement.

Design Agents. Company shall be allowed to use third party’s as independent contractors in connection with the Services (“Design Agents”). Company shall remain fully responsible for Design Agents’ compliance with this Agreement.

No Exclusivity. This Agreement does not create an exclusive relationship between the parties. Client is free to engage others to perform services of the same or similar nature to those provided by Company, and Company shall be entitled to offer and provide design services to others, solicit other clients and otherwise advertise the services offered by Company.

Representations and warranties

By Client. Client represents and warrants to Company that:

(a) To the best of Client’s knowledge, use of the Client Content does not infringe the rights of any third party; (b) Client shall comply with the terms and conditions of any licensing agreements which govern the use of Third Party Materials;(c) Client will obtain all necessary and appropriate rights and licenses to grant license to Company to use Third Party Materials.

By Company: Company represents and warranty to Client that: (a) Company will provide the Services identified in the Agreement in a professional and workmanlike manner; (b) Company shall secure all necessary rights, title, and interest in and to the Final Deliverables, including Designer Tools, sufficient for Company to grant the intellectual property rights provided in this Agreement; (c) To the best of Company knowledge, the Deliverables will not violate the rights of any third parties; (d) If Client or third parties modify the Deliverables or use the Deliverables outside of the scope or purpose of this Agreement, all representations and warranties of Company shall be void.

EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS AGREEMENT, COMPANY MAKES NO WARRANTIES WHATSOEVER. COMPANY EXPLICITLY DISCLAIMS ANY OTHER WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR COMPLIANCE WITH LAWS OR GOVERNMENT RULES OR REGULATIONS APPLICABLE TO THE PROJECT.

Indemnification and liability

By Client: Client shall indemnify Company from any and all damages, liabilities, costs, losses, expenses or attorney fees arising out of any claim, demand, or action by a third party arising out of any breach of Client’s responsibilities or obligations, representations or warranties under this Agreement. Company shall promptly notify Client in writing of any third party claim or suit. Client shall have the right to fully control the defense and any settlement of such claim or suit.

By Company: In the case of a third party lawsuit or proceeding based on a claim that Deliverables breach the third party’s intellectual property rights, and it is determined that such infringement has occurred, Company may at its own expense, replace any infringing content with non-infringing content.

Limitation of Liability. THE SERVICES AND THE WORK PRODUCT OF COMPANY ARE SOLD “AS IS.” IN ALL CIRCUMSTANCES, THE MAXIMUM LIABILITY OF COMPANY, ITS DIRECTORS, OFFICERS, EMPLOYEES, DESIGN AGENTS AND AFFILIATES (“COMPANY PARTIES”), TO CLIENT FOR DAMAGES FOR ANY AND ALL CAUSES WHATSOEVER, AND CLIENT’S MAXIMUM REMEDY, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL BE LIMITED TO THE NET PROFIT OF COMPANY. IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY LOST DATA OR CONTENT, LOST PROFITS, BUSINESS INTERRUPTION OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO THE MATERIALS OR THE SERVICES PROVIDED BY COMPANY, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

Term and termination

Term: This Agreement shall remain in place for the period of any outstanding services. The term of specific services shall be set forth in the Order Form.

Termination: Termination of this Agreement is conditional upon fulfilling 75% of the total contract payment term; and paying a cancellation fee of $1,000 with a written notice of cancellation. (CERTIFIED OR REGISTERED, RETURN RECEIPT REQUESTED) TO: DOCERO, 236 W 30TH ST, 2nd FLOOR, NEW YORK, NY 10001. No refunds shall be made for services purchased under this Agreement.

Notice of Auto Renewal: Client may choose to Terminate this Agreement upon fulfilling all outstanding payments as detailed in the Order Form. Client may terminate this Agreement, provided Client’s account is in good standing, by submitting a thirty-day written notice requesting cancellation to DOCERO, 236 WEST 30TH ST, 2nd FLOOR, NEW YORK, NY 10001. If Client does not submit notice of written cancellation within 30 days of the last scheduled monthly payment, this Agreement will automatically convert to a month-to-month Agreement.

Intellectual Property: If Client terminates and on full payment of compensation, Company grants Client right and title as provided by this Agreement with respect to those Deliverables provided and accepted by Client as of the date of termination.

Confidential Information: On expiration or termination of this Agreement: (a) each party shall return or, at the disclosing party’s request, destroy the Confidential Information of the other party, and (b) all rights and obligations regarding Confidential Information shall survive.

Rights to final art

License: Company grants to Client a non-exclusive, perpetual and worldwide license to use and display the Final Deliverables in accordance with this Agreement. The rights granted to Client are for use of the Final Deliverables in its original form only. Client may not change, create derivative works or extract portions of the Final Deliverables.

Liquidation for Unlicensed Use: Additional use of any Deliverables by Client outside the scope of the license granted above requires additional fees. Company shall be entitled to further compensation equal to twenty percent (20%) of the total original Project fee unless otherwise agreed in writing by both parties. In the event of non-payment, Company shall be entitled to pursue all remedies under law and equity.

Rights to deliverables other than final art

Client Content: Client Content is the exclusive property of the Client. Client grants Company a nonexclusive, nontransferable license to use, reproduce, modify, display and publish the Client Content solely in connection with Company performance of the Services and limited promotional uses of the Deliverables as authorized in this Agreement.

Preliminary Works. Company retains all rights in and to all Preliminary Works. Client shall return all Preliminary Works to Company within thirty days (30) of completion of the Services.

Designer Tools. All Designer Tools are and shall remain the exclusive property of Company. Company grants Client a nonexclusive, nontransferable, perpetual, worldwide license to use the Designer Tools solely to the extent necessary with the Final Deliverables for the Project.

Support services

Maintenance Period. Company will provide Support Services for the following twelve months (12) for Company’s hourly fees of two hundred dollars $200 per hour.

No Enhancements: The services in the Warranty Period and the Maintenance Period do not include enhancements to the Project or other services outside the scope of the Proposal.

Enhancements

During the Maintenance Period, Client may request that Company develop enhancements to the Deliverables. Company shall exercise commercially reasonable efforts to prioritize Company resources to create such enhancements. Client understands Company may have preexisting obligations that may delay requested enhancements. Company shall provide any enhancements shall be provided on a time and materials basis at Company standard rate.

Alterations. Alteration of any Deliverable is prohibited without the express permission of Company. Company will be given the first opportunity to make the required alterations. Unauthorized alterations shall constitute additional use and will be billed accordingly.

Dispute resolution

Negotiation: Parties agree to attempt to resolve any dispute by negotiation between the parties.

Arbitration/Mediation: If parties are unable to resolve the dispute by negotiation, either party may start mediation and/or binding arbitration in a forum mutually agreed to by the parties.

Litigation: In all other circumstances, the parties specifically consent to the local, state and federal courts located in the state of New York. The parties waive any jurisdictional or venue defenses available to them and further consent to service of process by mail.

General

Modification/Waiver: Modifications to this Agreement must be in writing and signed by both parties. Failure by either party to enforce any right or seek to remedy any breach under this Agreement shall not be construed as a waiver of such rights nor shall a waiver by either party of default in one or more instances be construed as constituting a continuing waiver or as a waiver of any other breach.

Notices. All notices under this Agreement shall be given in writing either by: (a) Fax or Email, with return confirmation of receipt; (b) Certified or Registered mail, with return receipt requested. Notice will be effective when received, or in the case of email or fax, on confirmation of receipt.

No Assignment. Rights or obligations under this Agreement shall not be transferred, assigned or encumbered without the prior written consent of the other party.

Governing Law. This Agreement shall be governed by the law of New York.

Severability: If any provision of this Agreement is held invalid or unenforceable, the remainder of this Agreement shall remain in full force and effect. Where possible the invalid or unenforceable provision shall be interpreted in such manner as to be effective and valid under applicable law.

Headings: Headings and numbering used in this Agreement are for convenience and reference only and shall not affect the scope, meaning, intent or interpretation of this Agreement, and shall not have any legal effect.

Complete Agreement:  This Agreement is the entire understanding of the parties and supersedes all prior understandings and documents relating to the subject matter of this Agreement.


Business associate agreement

This Business Associate Agreement (this “Agreement”) by and between Client (“Covered Entity”) and docero, (“Business Associate”), is entered into upon commencement of professional services as dated in Client Order Form for the purposes of complying with the Health Insurance Portability and Accountability Act of 1996 and regulations promulgated thereunder (“HIPAA”) and the security provisions of the American Recovery and Reinvestment Act of 2009, also known as the Health Information Technology for Economic and Clinical Health Act (the “HITECH Act”).  Covered Entity and Business Associate are collectively referred to herein as the “Parties.”

Witnesseth

WHEREAS, Covered Entity is a covered entity as such term is defined under HIPAA and as such is required to comply with the requirements thereof regarding the confidentiality and privacy of Protected Health Information; and

WHEREAS, Business Associate has entered or may enter into an agreement or agreements with Covered Entity (“Service Agreement”), pursuant to which Business Associate will render services to, for, or on behalf of Covered Entity; and

WHEREAS, by providing services pursuant to the Service Agreement, Business Associate shall become a business associate of Covered Entity, as such term is defined under HIPAA, and will therefore have obligations regarding the confidentiality and privacy of Protected Health Information that Business Associate creates for, or receives from or on behalf of, Covered Entity.

NOW THEREFORE, in consideration of the mutual covenants, promises, and agreements contained herein, the parties hereto agree as follows:

I. DEFINITIONS.

For the purposes of this Agreement, all capitalized terms used but not otherwise defined herein will have the meaning ascribed to them by HIPAA.

II. OBLIGATIONS OF BUSINESS ASSOCIATE.

A. Confidentiality

A. Business Associate warrants that it, its agents and its subcontractors: (a) shall use or disclose PHI only in connection with fulfilling its duties and obligations under this Agreement and the Service Agreement; (b) shall not use or disclose PHI other than as permitted or required by this Agreement or required by law; (c) shall not use or disclose PHI in any manner that violates applicable federal and state laws or would violate such laws if used or disclosed in such manner by Covered Entity; and (d) shall only use and disclose the minimum necessary Protected Health Information for its specific purposes.

B. Subject to the restrictions set forth in the previous paragraph and throughout this Agreement, Business Associate may use the information received from Covered Entity if necessary for (a) the proper management and administration of Business Associate; or (b) to carry out the legal responsibilities of Business Associate.

C. Subject to the restrictions set forth in Section II(A) (1) and throughout this Agreement, Business Associate may disclose PHI for the proper management and administration of Business Associate, provided that:

a. Disclosures are required by law, or

b. Business Associate obtains reasonable assurances from the person or entity to whom the information is disclosed that it will remain confidential and used or further disclosed only as     Required by Law or for the purpose for which it was disclosed to the person or entity, and the person or entity notifies the Business Associate of any instances of which it is aware in which the confidentiality of the information has been breached.

D. Business Associate acknowledges that, as between Business Associate and Covered Entity, all PHI shall be and remain the sole property of Covered Entity, including any and all forms thereof developed by Business Associate in the course of its fulfillment of its obligations pursuant to the Agreement and Service Agreement.

E. Business Associate further represents that, to the extent Business Associate requests that Covered Entity disclose PHI to Business Associate, such request is only for the minimum necessary PHI for the accomplishment of the Business Associate’s purpose.

F. To the extent that Business Associate is to carry out any of Covered Entity’s obligations that are regulated by HIPAA, Business Associate shall comply with the HIPAA requirements that apply to the Covered Entity in the performance of such obligation.

B. Safeguards.

A. Business Associate shall employ appropriate administrative, technical and physical safeguards, consistent with the size and complexity of Business Associate’s operations, to protect the confidentiality of PHI and to prevent the use or disclosure of PHI in any manner inconsistent with the terms of this Agreement. Business Associate covenants that such safeguards shall include, without limitation, implementing written policies and procedures in compliance with HIPAA and the HITECH Act, conducting a security risk assessment, and training Business Associate employees and contractors who may have access to Protected Health Information with respect to the policies and procedures required by HIPAA and the HITECH Act. Business Associate shall comply, where applicable, with the HIPAA Security Rule with respect to ePHI, to prevent use or disclosure of the information other than as provided for by this Agreement.

C. Individuals’ Rights to Their PHI.

A. In order to allow Covered Entity to respond to a request by an Individual for access to PHI pursuant to 45 CFR Section 164.524, Business Associate, within five (5) business days of a written request by Covered Entity for access to PHI about an Individual contained in a Designated Record Set, shall make available to Covered Entity such PHI for so long as such information is maintained in the Designated Record Set.

a. In the event that any Individual requests access to PHI directly from Business Associate, Business Associate shall forward such request to Covered Entity within two (2) business days. Before forwarding any PHI to Covered Entity, Business Associate shall indicate in the Designated Record Set, any material it deems unavailable to the Individual pursuant to 45 CFR Section 164.524.

b. Business Associate shall support Covered Entity in a manner that enables Covered Entity to meet its obligations under 45 CFR.524.

B. In order to allow Covered Entity to respond to a request by an Individual for an amendment to PHI, Business Associate shall, within five (5) business days of a written request by Covered Entity, make available to Covered Entity such PHI for so long as such information is maintained in a Designated Record Set.

a. In the event that any Individual requests amendment of PHI directly from Business Associate, Business Associate shall forward such request to Covered Entity within two (2) business days. Before forwarding any PHI to Covered Entity, Business Associate shall indicate in the Designated Record Set, any material it deems unavailable to the Individual pursuant to 45 CFR Section 164.526.

b. Business Associate shall support Covered Entity in a manner that enables Covered Entity to meet its obligations under 45 CFR Section 164.524.

c. Within ten (10) business days of receipt of a request from Covered Entity to amend an individual’s PHI in the Designated Record Set, Business Associate shall incorporate any approved amendments, statements of disagreement, and/or rebuttals into its Designated Record Set as required by 45 CFR Section 164.526.

C. In order to allow Covered Entity to respond to a request by an Individual for an accounting pursuant to 45 CFR Section 164.528, Business Associate shall, within five (5) business days of a written request by Covered Entity for an accounting of disclosures of PHI about an Individual, make available to Covered Entity such PHI. At a minimum, Business Associate shall provide Covered Entity with the following information:  (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) a brief statement of the purpose of such disclosure.

a. In the event that any Individual requests an accounting of disclosures of PHI directly from Business Associate, Business Associate shall forward such request to Covered Entity within two (2) business days.

b. Business Associate shall implement an appropriate record keeping process to enable it to comply with the requirements of this Agreement.

c. Business Associate shall support Covered Entity in a manner that enables Covered Entity to meet its obligations under 45 CFR Section 164.528.

D. The provisions of this Section shall survive the termination of this Agreement.

D. Disclosure to Third Parties.

Business Associate shall obtain and maintain a written agreement with each subcontractor or agent that has or will have access to PHI, which is received from, or created or received by, Business Associate for or on behalf of Covered Entity, pursuant to which agreement such subcontractor and agent agrees to be bound by the same restrictions, terms, and conditions that apply to Business Associate pursuant to the Agreement with respect to such PHI.

E. Reporting Obligations.

A. Breaches

a. In the event of a Breach of any Unsecured PHI that Business Associate accesses, maintains, creates, modifies, transmits, or otherwise holds or uses on behalf of Covered Entity, Business Associate shall report such Breach to Covered Entity as soon as practicable, but in no event later than ten (10) business days after the date the Breach is discovered.

b. Notice of a Breach shall include, at a minimum: (i) the identification of each individual whose PHI has been, or is reasonably believed to have been, accessed, acquired, or disclosed during the Breach; (ii) the date of the Breach, if known, and the date of discovery of the Breach; (iii) the scope of the Breach; and (iv) the Business Associate’s response to the Breach.

c. In the event of a Breach, Business Associate shall, in consultation with Covered Entity, mitigate, to the extent practicable, any harmful effect of such Breach known to Business Associate.

B. Improper Disclosures

a. Business Associate shall track all disclosures of Protected Health Information to third parties, including those made to subcontractors and agents, other than those disclosures that meet the exception criteria of 45 CFR Section 164.528.

b. In the event of any use or disclosure of PHI that is improper under this Agreement but does not constitute a Breach, Business Associate shall report such use or disclosure to Covered Entity within ten (10) business days after the date on which Business Associate becomes aware of such use or disclosure.

C. Security Incidents

a. In the event of any successful Security Incident, Business Associate shall report such Security Incident in writing to Covered Entity within three (3) business days of the date on which Business Associate becomes aware of such Security Incident.

b. Business Associate shall issue cumulative reports of attempted Security Incidents periodically upon Covered Entity’s reasonable request.

c. As reasonably appropriate, Business Associate shall advise Covered Entity of measures Business Associate will be taking to mitigate harm from Security Incidents and to prevent similar future incidents.

II. OBLIGATIONS OF COVERED ENTITY.

A. Covered Entity shall not request Business Associate to use or disclose PHI in any manner that would violate applicable federal and state laws if such use or disclosure were made by Covered Entity.

B. Covered Entity may request Business Associate to disclose PHI directly to another party only for the purposes allowed by HIPAA and the HITECH Act.

III. TERM AND TERMINATION.

A. Term.

This Agreement shall become effective upon execution of the Service Agreement and shall terminate upon the termination or expiration of the Service Agreement and when all PHI provided by either party to the other, or created or received by Business Associate on behalf of Covered Entity is, in accordance with this Section, destroyed or returned to Covered Entity or, if Business Associate determines that it is not feasible to return or destroy PHI, protections are extended to such information, in accordance with the terms of this Agreement.

B. Material Breach.

A. Where either party has knowledge of a material breach by the other party and cure is possible, the non-breaching party shall provide the breaching party with an opportunity to cure.  Where said breach is not cured within ten (10) business days of the breaching party’s receipt of notice from the non-breaching party of said breach, the non-breaching party shall terminate the Service Agreement, or, at the non-breaching party’s option, the portion of the Service Agreement affected by the breach.

B. Where either party has knowledge of a material breach by the other party and cure is not possible, the non-breaching party shall, if feasible, terminate this Agreement and the portion(s) of the Service Agreement, or, at the non-breaching party’s option, the portion of the Service Agreement affected by the breach.

C. Return or Destruction of PHI.

Upon termination of this Agreement for any reason, Business Associate shall:

A. If feasible, return or destroy all PHI received from, or created or received by Business Associate for or on behalf of Covered Entity that Business Associate or any of its subcontractors and agents still maintain in any form, and Business Associate shall retain no copies of such information; or

B. If Covered Entity determines that such return or destruction is not feasible, extend the protections of this Agreement to such information and limit further uses and disclosures to those purposes that make the return or destruction of the PHI infeasible, in which case Business Associate’s obligations under this Section shall survive the termination of this Agreement.

III.  MISCELLANEOUS.

A. Amendment.

If any of the regulations promulgated under HIPAA or the HITECH Act are amended or interpreted in a manner that renders this Agreement inconsistent therewith, the parties shall amend this Agreement to the extent necessary to comply with such amendments or interpretations.

B. Indemnification

Business Associate shall indemnify, defend and hold harmless Covered Entity and its directors, officers, subcontractors, employees, affiliates, agents, and representatives from and against any and all third party liabilities, costs, claims, suits, actions, proceedings, demands, losses and liabilities of any kind (including court costs and reasonable attorneys’ fees) brought by a third party, arising from or relating to the acts or omissions of Business Associate or any of its directors, officers, subcontractors, employees, affiliates, agents, and representatives in connection with the Business Associate’s performance under this Agreement or Service Agreement, without regard to any limitation or exclusion of damages provision otherwise set forth in the Service Agreement. The indemnification provisions of this Section shall survive the termination of this Agreement.

C. Interpretation.

Any ambiguity in this Agreement shall be resolved to permit the parties to comply with HIPAA and the HITECH Act.

D. Conflicting Terms.

In the event that any terms of this Agreement conflict with any terms of the Service Agreement, the terms of this Agreement shall govern and control.

E. Governing Law.

This Agreement shall be governed by and construed in accordance with the laws of the state under which the Service Agreement is governed.

F. Notices.

All notices, requests, approvals, demands and other communications required or permitted to be given under this Agreement shall be in writing and delivered either personally, or by certified mail with postage prepaid and return receipt requested, or by overnight courier to the party to be notified.  All communications will be deemed given when received.