Vivid Price - Terms and Conditions

This License and Services Agreement (the "Agreement"), effective at time of acceptance (the "Effective Date"), is entered into by and between LUCENT PRICING LLC, a Florida limited liability company, having its principal place of business at 333 3rd Ave N, St Petersburg, FL 33701 ("Licensor"), the User ("Licensee", and together with Licensor, the "Parties", and each, a "Party").

WHEREAS, Licensor is the owner of the Licensed Software (as defined below) and Licensor Carts (as defined below); and

WHEREAS, Licensee desires to obtain from Licensor, and Licensor desires to grant to Licensee, a license for Authorized Users to use the Licensed Software and the Authorized Number of Licensor Carts for the Permitted Use subject to the terms and conditions of this Agreement.

WHEREAS, Licensor provides to its customers access to the "Services" (as defined below); and

WHEREAS, Licensee wishes to access and Licensor wishes to provide Licensee with the Services, subject to the terms and conditions of this Agreement.

NOW, THEREFORE, in consideration of the mutual covenants, terms and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

DEFINITIONS. Capitalized terms shall have the meanings set forth or referred to in this Section, or in the Section in which they first Appear in the Agreement.
1. "Authorized Users" means the Authorized Number of employees of Licensee who are authorized to use the Licensed Software and Licensor Carts, as identified in Exhibit A.
2. "Authorized Number" means the number of employees of Licensee permitted to use the Licensed Software and Licensor Carts in accordance with this Agreement.
3. "Confidential Information" means all nonpublic or proprietary information treated as confidential by the Disclosing Party, including all: (a) information concerning the Disclosing Party's past, present and future business affairs including finances, products, services, organizational structure, internal practices, forecasts and sales; (b) unpatented inventions, ideas, methods and discoveries, trade secrets, know-how and other confidential intellectual property; (c) designs, specifications, documentation, components, source code, object code, images, icons, audiovisual components and objects, schematics, drawings, protocols, processes, and other visual depictions, in whole or in part, of any of the foregoing; (d) any third-party confidential information included with, or incorporated in, any information provided by the Disclosing Party; and (e) all Notes prepared by or for the Disclosing Party or its Representatives that contain, reflect or are derived from, in whole or in part, any of the foregoing. Except as required by applicable federal, state or local law or regulation, "Confidential Information" shall not include information that, at the time of disclosure: (1) is, or thereafter becomes, generally available to and known by the public other than as a result of, directly or indirectly, any breach of this Agreement by the Receiving Party or any of its Representatives; (2) is, or thereafter 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; (3) was known by or in the possession of the Receiving Party or its Representatives, as established by documentary evidence, prior to being disclosed by or on behalf of the Disclosing Party; or (4) was or is independently developed by the Receiving Party, as established by documentary evidence, without reference to or use of, in whole or in part, any of the Disclosing Party's Confidential Information. Notwithstanding the foregoing, Confidential Information shall also mean Licensee's patients/clients' PHI and Private Information as defined herein.
4. "Data" means any and all information, data, results, statistical analysis, databases, in any and all forms, including, without limitation, files, reports, raw data, and source data.
5. "Disclosing Party" means the Party that discloses Confidential Information to the Receiving Party.
6. "Documentation" means user manuals, technical manuals and any other materials provided by Licensor, in printed, electronic or other form, that describe the installation, operation, use or technical specifications of the Licensed Software.
7. "Feedback" has the meaning set forth in Section 7.
8. "Health Care Laws and Practices" means all federal, state or local laws, rules, regulations or guidelines regarding (i) any government-sponsored health care program, including Medicare and other federally or state funded entitlement programs, and including those laws, rules, regulations and guidelines related to covered services, charging practices, billing, collection, marketing and advertising, (ii) kickbacks, fee- splitting and other referral practices, including, without limitation, the federal anti- kickback statute set forth at 42 U.S.C. Section 1320a-7b (the "anti-kickback statute"), the federal provider self-referral law set forth at 42 U.S.C. Section 1395nn (the "Stark law"), and other related or similar laws and regulations, and (iii) the privacy, maintenance or protection of patient records, including the Health Insurance Portability and Accountability Act of 1996 ("HIPAA") and the Health Information Technology for Economic and Clinical Health Act.
9. "Initial Term" has the meaning set forth in Section 13.1.
10. "Intellectual Property Rights" means all (a) patents, patent applications, patent disclosures and inventions (whether patentable or not), (b) trademarks, service marks, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, (c) copyrights and copyrightable works (including computer programs), mask works and rights in data and databases, (d) trade secrets, know-how and other confidential information, and (e) all other intellectual property rights, in each case whether registered or unregistered and including all Applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection provided by Applicable law, regulations or rules in any jurisdiction throughout the world.
11. "Legal Order" has the meaning set forth in Section 12.2.
12. "Licensed Software" means version 1.1 of the Licensor software and application, together with any Maintenance Releases provided to Licensee pursuant to this Agreement.
13. "Licensor Cart means the mobile cart consisting of a tablet computer and related peripheral devices supplied by Licensor, on which the Licensed Software has been installed by Licensor.
14. "Maintenance Release" means any update or release of the Licensed Software that Licensor may provide to Licensee from time to time during the Term, that may contain, among other things, error corrections, enhancements or other changes to the user interface, functionality, compatibility, capabilities, performance, efficiency or quality of the Licensed Software, but does not constitute a New Version.
15. "New Version" means any new version of the Licensed Software that Licensor may from time to time, introduce and market generally as a distinct licensed product, and which Licensor may make available to Licensee at an additional cost under a separate written agreement.
16. "Notes" means any notes, analyses, compilations, reports, forecasts, studies, samples, data, statistics, summaries, interpretations or other materials, in printed, electronic or other form.
17. "PHI" has the meaning set forth in Section 11.
18. "Permitted Use" means use of the Licensed Software and Authorized Number of Licensor Carts by an Authorized User for the benefit of Licensee in the ordinary course of its internal business for the purpose of providing patient estimate of patient charges as a cost estimator for Licensee's patients according to the terms of this Agreement.
19. "Personally Identifiable Information (PII)" means personal data that can be used to uncover a specific individual's identity, such as SSNs, full names, and phone numbers.
20. "Private Information" has the meaning as set forth in New York General Business Law Section 899-aa.
21. "Renewal Fees" has the meaning set forth in Section 5.1.
22. "Renewal Term" has the meaning set forth in Section 13.1.
23. "Representatives" means a Party's successors, permitted assigns, affiliates, employees, officers, directors, partners, shareholders, agents, attorneys and third-party advisors.
24. "Services" means a customized tool/software to calculate patient financial responsibility for healthcare services provided by Licensee ("Patient Cost Estimator") in addition to Licensor's resources and support to implement the Patient Cost Estimator, as more fully described in Exhibit A.
25. "Scheduled Downtime" means those hours, as determined by Licensor in its sole discretion during which time Licensor will perform scheduled maintenance or adjustments to the Licensed Software or Licensor Carts. Licensor shall provide to Licensee via notice posted on the Licensed Software website interface at least one (1) business days prior written notice of any Scheduled Downtimes. A Scheduled Downtime shall not occur between 8 a.m. EST and 6 p.m. EST.
26. "Term" has the meaning set forth in Section 13.1.
27. "User Data" has the meaning set forth in Section 8.
28. "Warranty Period" has the meaning set forth in Section 14.3.
LICENSE GRANT. Subject to, and conditioned upon, Licensee's compliance with the terms and conditions of this Agreement, Licensor hereby grants to Licensee a non- exclusive, non-transferable, non-sublicensable, limited license for Authorized Users to use the Licensed Software and the Authorized Number of Licensor Carts solely in the Permitted Use during the Term.
SCOPE OF USE.
1. Access. Licensee shall be permitted to use and run the Licensed Software only on Licensor Carts supplied by the Licensor.
2. Permitted Use. Licensee shall use the Licensed Software and the Licensor Carts solely for the Permitted Use as described in this Agreement.
3. Service Levels and Support.
  1. (i) Service Levels. Subject to the terms and conditions of this Agreement, Licensor shall use commercially reasonable efforts to make the Services available in accordance with the service levels set out in Exhibit A.
  2. (ii) Support. The access rights granted hereunder include set-up and training services sufficient, in Licensor's sole discretion, to permit Licensee to fully and competently utilize the Services. Any additional support services requested by Licensee must be purchased from Licensor as set forth in Exhibit A.
USE RESTRICTIONS. Licensee shall not, and shall not permit any Representatives or third parties to, in any manner:
1. modify, alter, amend, fix, translate, enhance or create derivative works of the Licensed Software or Licensor Carts;
2. reverse engineer, manipulate, disassemble, decompile, decode or adapt the Licensed Software or otherwise attempt to derive or gain access to the source code of the Licensed Software in whole or in part;
3. remove, disable or otherwise create or implement any workaround to, any security features contained in the Licensed Software and Licensor Carts;
4. remove, delete or alter any trademarks, copyright notices or other Intellectual Property Rights notices of Licensor or its licensors, if any, from the Licensed Software or the Licensor Cart;
5. copy the Licensed Software in whole or in part;
6. rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make the Licensed Software or Licensor Carts available to any third party or any person other than the Authorized Users for any reason;
7. use the Licensed Software or Licensor Carts in violation of any federal, state or local law, regulation or rule;
8. use the Licensed Software or Licensor Carts for purposes of competitive analysis of the Licensed Software or Licensor Carts, the development of a competing product or service or any other purpose that is to Licensor's commercial disadvantage;
9. disclose to third parties the results of any bench tests performed on the Licensed Software or Licensor Carts;
10. merge or connect the Licensed Software or Licensor Carts with other software or online applications; or
11. use or access the Licensed Software or Licensor Carts in any other manner or for any other purpose not expressly permitted by this Agreement.
FEES.
1. License Fees. In consideration of the rights granted to Licensee under this Agreement, Licensee shall pay to Licensor the fees set forth on Exhibit A ("Fees") in accordance with the terms of this Section 5. If the Term is renewed for any Renewal Term(s) pursuant to Section 13.1, Licensee shall pay the then-current license fees that Licensee charges for the Licensed Software and Licensor Carts during the applicable Renewal Term ("Renewal Fees"). If the Term is renewed for any Renewal Term, the Renewal Fees will be considered Fees for purposes of this Agreement.
2. Payment Terms. Licensee shall pay 100% of the Fees due and owing under this Agreement with respect to any calendar month when signing into the portal with a credit card that is registered and charged each month of the Term and any Renewal Term. All payments hereunder shall be in US dollars. In addition to all other remedies available under this Agreement or at law (which Licensor does not waive by the exercise of any rights hereunder), Licensor shall be entitled to suspend Licensee's use of the Licensed Software and Licensor Carts if Licensee fails to pay.
3. Taxes. Licensee 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 Licensee hereunder; provided, that, in no event shall Licensee pay or be responsible for any taxes imposed on, or with respect to, Licensor's income, revenues, gross receipts, personnel or real or personal property or other assets.
MAINTENANCE. During the Term, Licensor shall provide Licensee with Maintenance Releases that Licensor may, in its sole discretion, make generally available to its licensees at no additional charge. All Maintenance Releases, upon being provided by Licensor to Licensee hereunder, shall be deemed Licensed Software subject to all applicable terms and conditions in this Agreement. Licensee shall install all Maintenance Releases as soon as practicable after receipt. Licensee shall not have any right hereunder to receive any New Versions of the Licensed Software that Licensor may, in its sole discretion, release from time to time. Licensor may, in its discretion, permit Licensee to license any New Version that Licensor generally makes available to its licensees, subject to a separate license agreement. Licensee acknowledges that the Licensed Software and Licensor Carts may not be available during Scheduled Downtime.
OWNERSHIP. Licensee acknowledges and agrees that the Licensed Software and Licensor Carts are being licensed, not sold, to Licensee by Licensor. Licensee further acknowledges and agrees that it shall not acquire any ownership interest in the Licensed Software or the Licensor Carts under this Agreement, and that Licensor reserves and shall retain its entire right, title and interest in and to the Licensed Software and Licensor Carts and all Intellectual Property Rights arising out of or relating to the Licensed Software and Licensor Carts. If Licensee or any of Licensee's employees, contractors, and agents sends or transmits any communications or materials to Licensor by mail, email, telephone, or otherwise, suggesting or recommending changes to the Licensed Software interface, including without limitation, new features or functionality relating thereto ("Feedback"), all such Feedback is and will be treated as non-confidential, as long as such Feedback does not include Confidential Information of Licensee. Licensee hereby assigns to Licensor, all right, title, and interest in, and Licensor is free to use, without any attribution or compensation to Licensee or any third party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Licensor is not required to use any Feedback. Licensee shall promptly notify Licensor if Licensee becomes aware of any possible third-party infringement of Licensor's Intellectual Property Rights arising out of or relating to the Licensed Software or Licensor Carts and fully cooperate with Licensor, at Licensor's expense, in any legal action taken by Licensor against third parties to enforce its Intellectual Property Rights. Licensee shall safeguard the Licensed Software and Licensor Carts (including all copies thereof) from infringement, misappropriation, theft, misuse or unauthorized access.
USER DATA. Licensor shall have the right to use, analyze and commercialize all Data, including, but not limited to, patient and physician data and PHI, gathered from the use of the Licensed Software and the Licensor Carts hereunder ("User Data") for any valid, lawful purpose, subject to applicable Health Care Laws and Practices (e.g., to create models based on aggregated, de-identified, PHI). The User Data will be the property of Licensor, and to the extent any such User Data does not vest in Licensor, Licensee, to the fullest extent permitted by law, hereby assigns all right, title, and interest in such User Data to Licensor. To the extent such User Data is not assignable to Licensor, Licensee, to the fullest extent permitted by law, grants Licensor an irrevocable, perpetual, transferrable, sublicensable, right and license to use such User Data. Licensor will secure the necessary consents and "opt-ins" to ensure that Licensor has the rights to use, analyze, and commercialize the User Data as described in this Section and Agreement.
TECHNOLOGICAL MEASURES. The Licensed Software and Licensor Carts may contain technological measures designed to prevent unauthorized or illegal use of the Licensed Software or Licensor Carts. Licensee agrees that Licensor may use these measures to verify Licensee's compliance with the terms of this Agreement and enforce Licensor's rights, including all Intellectual Property Rights, in and to the Licensed Software and Licensor Carts. Licensee acknowledges and agrees that Licensor and its Representatives may collect, maintain, process and use diagnostic, technical, usage and related information, including information about Licensee's computers, systems and software, that Licensor may gather periodically to improve the performance of the Licensor Carts and Licensed Software and develop Maintenance Releases and New Versions. Licensee shall be responsible for ensuring appropriate access restrictions for users of the Licensed Software and Licensor Carts. Licensee acknowledges that the Licensed Software and Licensor Carts do not offer protection against unauthorized or illegal use of the Licensee's systems or network. Licensee shall implement and maintain reasonable and appropriate security measures to prevent unauthorized or illegal use of the Licensor's systems and network. Licensee shall ensure that all information security safeguards, including the manner in which Protected Health Information (PHI) as defined herein, Private Information, Personally Identifiable Information (PII), or any other data is collected, accessed, used, stored, processed, disposed of and disclosed, comply with data protection and privacy laws and appropriate standards, as well as the terms and conditions of this Agreement. Licensor shall provide responses ongoing to reasonable Licensee inquiries for information or evidence related to Licensor's security program. In addition, the Parties shall comply with the terms and conditions of the Business Associate Agreement, which is attached hereto as Exhibit B of this Agreement.
SECURITY. At a minimum, Licensee's safeguards shall include:
1. limiting access to the Licensed Software and Licensor Carts to Authorized Users;
2. securing business facilities, data centers, paper files, servers, back- up systems and computing equipment;
3. implementing network, device application, database and platform security;
4. securing information transmission, storage and disposal;
5. implementing authentication and access controls within media, applications, operating systems and equipment;
6. encrypting data stored or transmitted via the Licensed Software and Licensor Carts;
7. implementing appropriate personnel security and integrity procedures and practices; and
8. providing appropriate privacy and information security training to its Authorized Users and Representatives.
HIPAA. The Parties recognize and acknowledge that Licensee is a "covered entity" and Licensor is a "business associate" as such terms are defined by HIPAA. The Parties recognize and acknowledge that, by virtue of entering into this Agreement, Licensor and Licensee may have access to certain information of patients of Licensee that would be designated as protected health information and individually identifiable health information, as defined under HIPAA (collectively, the "PHI"). To the extent required by HIPAA, the Parties agree to the Business Associate Agreement, in the form set forth and attached as Exhibit B of this Agreement, which is incorporated by reference.
CONFIDENTIALITY.
1. Licensee Obligations. Licensee acknowledges and agrees that it may gain access to or become familiar with Licensor's Confidential Information. Except as set forth in Section 12.2, Licensee shall:
  1. (i) protect and safeguard the confidentiality of the Licensor's Confidential Information with at least the same degree of care as the Licensee would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care;
  2. (ii) not use the Licensor's Confidential Information, or permit it to be accessed or used, for any purpose other than to perform its obligations under this Agreement, or otherwise in any manner to Licensor's detriment;
  3. (iii) not disclose any such Confidential Information to any person or entity, except to Licensee's Representatives who (1) need to know the Confidential Information to assist the Licensee, or act on its behalf, in relation to exercising its rights under this Agreement; (2) are informed by Licensee of the confidential nature of the Confidential Information; and (3) are subject to written confidentiality agreements with duties or obligations to Licensee that are no less restrictive than the terms and conditions of this Agreement; and
  4. (iv) be responsible for any breach of this Agreement caused by any of its Representatives.
2. Required Disclosure. The Licensee may disclose the Licensor's Confidential Information pursuant to applicable federal, state or local law, regulation or a valid order issued by a court or governmental agency of competent jurisdiction (a "Legal Order"), provided that the Licensee shall first make commercially reasonable efforts to provide Licensor with:
  1. (i) prompt written notice of such requirement so that Licensor may seek, at its sole cost and expense, a protective order or other remedy; and
  2. (ii) reasonable assistance, at the Licensor's sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure.
TERM; TERMINATION.
1. Term. This Agreement shall commence on the Effective Date and, unless terminated earlier pursuant to any of its express provisions, shall continue thereafter for a period of three (3) months (the "Initial Term"). Upon expiration of the Initial Term, this Agreement shall automatically renew for additional successive one (1) month terms (each a "Renewal Term" and together with the Initial Term, the "Term"), or for such shorter period as may result from termination pursuant to an express provision hereof, unless either Party provides written notice of nonrenewal at least fifteen (15) days prior to the end of the Initial Term or the then-current Renewal Term. In the event either Party provides timely notice of its intent not to renew this Agreement, then, unless otherwise terminated in accordance with its terms, this Agreement shall terminate on the expiration of the then-current Term.
2. Termination. This Agreement may be terminated prior to the expiration of the Term on written notice:
  1. (i) by Licensor, if Licensee fails to pay any amount when due hereunder and such failure is not remedied within five (5) business days after notice of nonpayment is posted on the Licensed Software website interface to Licensee;
  2. (ii) by either Party, if the other Party commits a material breach of any provision of this Agreement and either the breach cannot be cured or, if the breach can be cured, it is not cured by such Party within ten (10) business days after such Party's receipt of written notice of such breach;
  3. (iii) by Licensee, if Licensor commits a material breach of any warranty set forth in Section 14.3 and such breach is not cured by Licensor in accordance with Section 14.6;
  4. (iv) by either Party, effective immediately, if the other Party files, or has filed against it, a petition for voluntary or involuntary bankruptcy or pursuant to any other insolvency law, makes or seeks to make a general assignment for the benefit of its creditors or applies for, or consents to, the appointment of a trustee, receiver or custodian for a substantial part of its property.
  5. (v) by either Party at any time, for whatever reason, upon ninety (90) days prior written notice to the other Party.
3. Effect of Termination. The expiration or termination of this Agreement, for any reason, shall not release either Party from any liability to the other Party, including any payment obligation, that has already accrued hereunder. On the expiration or termination of this Agreement, for any reason, the Licensor has the right to close the Licensee's account; and the Licensee shall:
  1. (i) immediately discontinue use of the Licensed Software and Licensor Carts; and
  2. (ii) within thirty (30) days, return to Licensor Licensed Software and Licensor Carts supplied hereunder and all materials containing Licensor's Confidential Information; provided that it shall be at Licensee's expense in the event Licensee terminated without cause or Licensor terminated for cause and it shall be at Licensor's expense in the event Licensor terminated without cause or Licensee terminated for cause. This requirement applies to partial and complete copies in all forms, in all types of media and computer memory, and whether or not modified or merged into other materials.
4. Survival. The provisions of Section 1, Section 4, Section 5, Section 7, through Section 12, Section 13.3, Section 14.2, Section 14.6, Section 15 through Section 21 shall survive the expiration or earlier termination of this Agreement for any reason.
REPRESENTATION AND WARRANTIES.
1. Mutual Representations. Each Party represents to the other Party the following:
  1. (i) It is an entity duly organized and validly existing, and in good standing under the laws of the state or jurisdiction of its organization;
  2. (ii) It is qualified and licensed to do business and in good standing in every jurisdiction where such qualification and licensing is required for purposes of this Agreement; and
  3. (iii) It has all necessary power and authority to negotiate, execute, deliver and perform its obligations under this Agreement.
  4. (iv) The execution of this Agreement by its representative whose signature is set forth at the end hereof has been duly authorized by all necessary organizational action;
  5. (v) When executed and delivered by the Parties, this Agreement will constitute the legal, valid, and binding obligation of the Parties, enforceable against each other in accordance with its terms;
  6. (vi) It has obtained all approvals, licenses, and certifications necessary to exercise its rights and perform its obligations under this Agreement;
  7. (vii) It will comply with the requirements of all applicable federal, state and local laws, regulations and ordinances including, but not limited to, HIPAA and New York General Business Law Section 899- aa, and conduct its business in accordance with any and all applicable laws, rules, guidelines and requirements of governmental, accrediting, reimbursement, payment and other agencies having jurisdiction over the operation of its business, including without limitation, compliance with the following requirements: Health Care Laws and Practices.
2. Limited Warranty. Subject to the limitations set forth in Section 13.4, Section 14.4, and Section 14.7, Licensor warrants to Licensee that during the Term (the "Warranty Period"), the Licensed Software and Licensor Carts shall substantially conform in all material respects to the specifications set forth in the Documentation, when operated and used as recommended in the Documentation and in accordance with this Agreement.
3. Licensee Requirements. The limited warranty set forth in Section 14.2 shall only apply where Licensee:
  1. (i) promptly notifies Licensor in writing of the warranty breach before;
  2. (ii) has promptly installed all Maintenance Releases to the Licensed Software that Licensor previously made available to Licensee; and
  3. (iii) as of the date of notification, is in compliance with all other terms and conditions of this Agreement (including the payment of all license fees then due and owing).
4. Exceptions. Notwithstanding anything to the contrary in this Section 14, the limited warranty set forth in Section 14.2 shall not apply to problems arising out of or relating to:
  1. (i) Licensed Software or Licensor Carts that are modified or damaged by Licensee or its Representatives;
  2. (ii) Licensee's or any third party's negligence, abuse, misapplication or misuse of the Licensed Software or Licensor Carts, including any use of the Licensed Software or Licensor Carts other than as specified in the Documentation;
  3. (iii) Licensee's failure to promptly install all Maintenance Releases that Licensor has previously made available to Licensee;
  4. (iv) the operation of, or access to, Licensee's systems or network;
  5. (v) any beta software, software that Licensor makes available for testing or demonstration purposes, temporary software modules or software for which Licensor does not receive a license fee;
  6. (vi) the combination of any third-party software or technology with the Licensed Software or the Licensor Carts;
  7. (vii) Licensee's breach of any provision of this Agreement;
  8. (viii) Scheduled Downtime; or
  9. (ix) any other circumstances or causes outside of the reasonable control of Licensor (including abnormal physical, electrical stress, poor internet connection, or power failure).
5. Remedial Efforts. If Licensor breaches any of the warranties set forth in Section 14.2, Licensor may take any of the following steps to remedy such breach:
6. Sole Remedy.
  1. (i) replace any damaged or defective Licensor Cart;
  2. (ii) amend, supplement or replace any incomplete or inaccurate Documentation;
  3. (iii) repair the Licensed Software and/or Licensor Carts;
  4. (iv) replace the Licensed Software and/or Licensor Carts with functionally equivalent software and hardware; and/or
  5. (v) terminate this Agreement and, provided that Licensee fully complies with its post-termination obligations as set forth in Section 13.3, promptly provide to Licensee a pro rata refund of the Fees previously paid by Licensee for the remaining Term of this Agreement following the date of such termination.
7. Disclaimer. EXCEPT FOR THE LIMITED WARRANTIES SET FORTH IN SECTION 14.2 OF THIS AGREEMENT, THE LICENSED SOFTWARE AND LICENSOR CARTS ARE PROVIDED "AS IS" AND THE LICENSOR EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE LICENSED SOFTWARE, THE LICENSOR CARTS AND ANY OTHER SERVICES AND MATERIALS PROVIDED TO THE LICENSEE UNDER THIS AGREEMENT, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON- INFRINGEMENT AND WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, THE LICENSOR PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, THAT THE LICENSED SOFTWARE OR THE LICENSOR CARTS WILL MEET THE LICENSEE'S REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS OR SERVICES (EXCEPT AS EXPRESSLY SET FORTH IN THE DOCUMENTATION), OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE.
EQUITABLE REMEDIES. The Parties acknowledge that a breach or threatened breach of this Agreement by either Party or its Representatives may cause irreparable harm to the other Party for which monetary damages would not be an adequate remedy, and hereby agrees that in the event of a breach or a threatened breach by either Party or its Representatives, the non-breaching Party shall, in addition to any and all other rights and remedies that may be available at law (which the Party do not waive by the exercise of any rights hereunder), be entitled to seek a temporary restraining order, injunction, specific performance and any other equitable relief that may be available from a court of competent jurisdiction, and the Parties hereby waive any requirement for the securing or posting of any bond or the showing of actual monetary damages in connection with such claim.
INDEMNIFICATION. Indemnification of Licensor. Licensee agrees to defend, indemnify, and hold Licensor, and its officers, directors, agents, and employees, harmless against all costs, expenses, and losses (including reasonable attorney fees and costs) incurred through claims of third parties arising from a) a breach by Licensee of any representation, covenant, or warranty made by it in this Agreement; and b) Licensee's or its Authorized Users' use of the Licensed Software and/or Licensor Carts in a manner not permitted by the terms of this Agreement.
LIMITATION OF LIABILITY.
1. No Consequential or Indirect Damages. IN NO EVENT WILL EITHER PARTY OR ANY OF ITS REPRESENTATIVES BE LIABLE UNDER THIS AGREEMENT TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES, INCLUDING ANY DAMAGES FOR BUSINESS INTERRUPTION, LOSS OF USE, DATA, REVENUE OR PROFIT, WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT THE LICENSOR WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
2. Maximum Liability. IN NO EVENT WILL THE LICENSOR'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID OR PAYABLE TO THE LICENSOR PURSUANT TO THIS AGREEMENT IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF THE LICENSEE'S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
NOTIFICATION. If Licensee or any of its Representatives and/or subcontractors shall have, acquire, or gain access to the Intellectual Property Rights, PHI, Personally Identifiable Information and/or Private Information of the Licensor and is notified or discovers that such Intellectual Property Rights, PHI, Personally Identifiable Information and/or Private Information has been or reasonably is believed to have been accessed, acquired and/or used by any person including, but not limited to, an employee of Licensee, its Representatives or subcontractors, without the valid authorization of the Party, and such access, acquisition or use compromises the security, confidentiality, or integrity of the Intellectual Property Rights, PHI, Personally Identifiable Information and/or Private Information, that Party shall immediately, upon notification or discovery of the breach, but in no event later than five (5) days after notification or discovery thereof, notify the other Party of the breach of the security, confidentiality, or integrity of the Intellectual Property Rights, PHI, Personally Identifiable Information and/or Private Information. Licensee shall also immediately take all commercially reasonable steps to mitigate the risk of the breach and provide to the other Party any information relating to the breach that Licensor may request from the Licensee. For purposes of this Agreement, a breach shall be treated as discovered by a Licensee as of the first day on which such breach is known to Licensee or, by exercising reasonable diligence, would have been known to Licensee.
WAIVER OF JURY TRIAL. EACH 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 OR THE TRANSACTIONS CONTEMPLATED HEREBY.
NOTICES.
1. All notices, requests, consents, claims, demands, waivers and other communications which are required or permitted to be given pursuant to this Agreement shall be in writing and shall be sufficient in all respects if delivered personally, by electronic facsimile (with a confirmation by registered or certified mail placed in the mail no later than the following day), or by registered or certified mail, postage prepaid, addressed to a party as indicated below:
  
  If to Licensor:
  LUCENT PRICING LLC
  333 3rd Ave N
  St Petersburg, FL 33701
  Attn: Legal Department
  
  If to Licensee:
  __________________________
  __________________________
  __________________________
  Attn: __________________________
2. and shall be deemed to have been given:
  1. (i) when delivered by hand (with written confirmation of receipt);
  2. (ii) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested);
  3. (iii) on the date sent by facsimile or e-mail of a PDF document (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient; or
  4. (iv) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the addresses set forth on the first page of this Agreement (or to such other address that may be designated by a Party from time to time in accordance with this Section 20).
MISCELLANEOUS.
1. Force Majeure. Excepting only Licensee's payment obligations under this Agreement, neither Party shall be in default hereunder by reason of any failure or delay in the performance of its obligations hereunder where such failure or delay is due to any cause beyond its reasonable control, including strikes, labor disputes, civil disturbances, riot, rebellion, invasion, epidemic, hostilities, war, terrorist attack, embargo, natural disaster, acts of God, flood, fire, sabotage, fluctuations or non-availability of electrical power, heat, light, air conditioning or Licensee equipment, loss and destruction of property or any other circumstances or causes beyond such Party's reasonable control.
2. Further Assurances. Each Party shall, on the reasonable request and at the sole cost and expense of the other Party, take, execute, acknowledge and deliver all such further acts, documents and instruments necessary to give full effect to this Agreement.
3. Relationship of the Parties. Nothing contained in this Agreement shall be construed as creating any agency, partnership, or other form of joint enterprise between the Parties. The relationship between the Parties shall at all times be that of independent contractors. Neither Party shall have authority to contract for or bind the other in any manner whatsoever.
4. Publicity. Neither Party shall use the other Party's trademarks, service marks, trade names, logos, symbols or brand names, or otherwise issue or release any announcement, statement, press release or other publicity or marketing materials relating to the existence or subject matter of this Agreement, or the relationship between the Parties, in each case, without the prior written consent of the other Party, which consent shall not be unreasonably withheld or delayed; provided that Licensee shall be permitted to accurately disclose the nature of the arrangement with Licensor to customers in the ordinary course of pitching services by Licensee; provided that Licensee shall not use, or authorize the use of, Licensor's names or Intellectual Property Rights in any way that suggests an affiliation or sponsorship with Licensor.
5. Entire Agreement. This Agreement, together with all exhibits attached hereto, 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, with respect to such subject matter. This Agreement may only be amended, modified or supplemented by an agreement in writing signed by each Party hereto. In the event of a conflict between the terms, provisions and conditions contained in the body of this Agreement and the terms, provisions and conditions contained in the Exhibits to this Agreement, the term, provisions and conditions contained in the body of this Agreement shall prevail, except when such conflict is with the Business Associate Agreement that is attached hereto as Exhibit B. In the event of a conflict between the terms, provisions and conditions contained in the body of this Agreement and the terms, provisions and conditions contained in the body of the Business Associate Agreement, Exhibit B, the terms, provisions and conditions of the Business Associate Agreement shall prevail. In no event shall the provisions of any purchase order or any associated documentation used by Licensee, constitute a binding agreement between the Parties or serve to modify the provisions of this Agreement, regardless of any failure of Licensor to object to any purchase order or associated documentation.
6. Assignment. The Licensee shall not assign any of their rights or delegate any of their obligations hereunder without the prior written consent of Licensor. Any purported assignment or delegation in violation of this Section 21.6 shall be null and void. No assignment or delegation shall relieve either Party of any of its obligations hereunder.
7. No Third-party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer on any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
8. Waiver. No waiver by any Party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the Party so waiving. No waiver by any Party shall operate or be construed as a waiver in respect of any failure, breach or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. 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.
9. Severability. If any term or provision of this Agreement is 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.
10. Attorneys' Fees. In the event that either Party institutes any legal suit, action or proceeding against the other Party arising out of or relating to this Agreement, the prevailing Party in the suit, action or proceeding shall be entitled to receive in addition to all other damages to which it may be entitled, the costs incurred by such Party in conducting the suit, action or proceeding, including reasonable attorneys' fees and expenses and court costs.
11. Governing Law; Jurisdiction. This Agreement shall be governed by the laws of the State of Florida exclusive of conflict of law principles and shall be enforceable in the courts of the State of Florida, St. Petersburg, Pinellas County, or in the United States District Court for the Middel District of Florida. The Parties irrevocably submit to the exclusive jurisdiction of such courts.
12. Interpretation. For purposes of this Agreement, (a) the words "include," "includes" and "including" shall be deemed to be followed by the words "without limitation"; (b) the word "or" is not exclusive; and (c) the words "herein," "hereof," "hereby," "hereto" and "hereunder" refer to this Agreement as a whole. Unless the context otherwise requires, references herein: (x) to Sections and Exhibits refer to the Sections of, and Exhibits attached to, this Agreement; (y) to an agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The Exhibits referred to herein shall be construed with, and as an integral part of, this Agreement to the same extent as if they were set forth verbatim herein.
13. Captions and Headings. The captions and headings in this Agreement are included for convenience and reference only, and shall in no way beheld or deemed to define, limit, describe, explain, modify, amplify or add to the interpretation, construction or meaning of, or the scope or intent of, this Agreement.
14. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, e-mail or other means of electronic transmission (to which a signed PDF copy is attached) shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.

EXHIBIT A

Capitalized terms used but not defined in this Exhibit A have the meaning given to those terms in the License and Services Agreement of even date (the "Agreement").

DESCRIPTION OF SERVICES
1. A. Licensee will provide Licensor with requested Licensee Data and Licensor will create a customized Patient Cost Estimator to calculate patient financial responsibility based upon the current monthly fee schedule listed in the Licensed Software website interface.
2. B. Licensee Data includes but is not limited to:
3. - List of 'site of care' locations
  - List of participating and out-of-network insurances and associated fee schedules
  - List of infused and injected drugs
  - List of administrative services
  - Chargemaster for services and drugs
4. C. Licensor will perform benefit checks on all applicable patients*
5. D. Licensor will support enrollments of patients in any applicable co-pay assist programs on behalf of Licensee*
6. E. Licensor will generate a patient cost estimate document for each applicable patient and provide estimate to Licensee*
7. F. Licensor will share best practices with Licensee regarding the dissemination of the cost estimate to patients, including workflow etc.
8. G. Licensor will update the Patient Cost Estimator as necessary to keep it current.
9. H. It is important to note that the Patient Cost Estimator's calculation of patient financial responsibility prior to treatment is an ESTIMATE based on the information provided by Licensee, patient and patient's insurance (if applicable) and in some instances will vary from actual amount of patient financial responsibility.
10. I. *Licensor will provide services noted with * for additional fee at Licensee request.
SERVICE FEES
Licensee has reviewed the available subscription tiers and pricing options presented in the Subscription and Billing section of the Licensed Software and has selected a specific subscription tier at Licensee's discretion.

Licensee acknowledges and agrees to the subscription tier, service levels, and associated fees that Licensee selected within the Subscription and Billing section of the Licensed Software portal prior to executing this Agreement. The specific pricing terms selected by Licensee, including but not limited to location fees, cost estimate fees, and any additional service fees, are hereby incorporated into this Agreement by reference.

Licensee's selected subscription tier and associated pricing shall be reflected on the monthly invoices issued by Licensor. Licensee's first invoice, issued at the commencement of the Initial Term, shall serve as written confirmation of the subscription tier and pricing terms selected by Licensee.

Licensee confirms that: (a) Licensee had full opportunity to review all available subscription tier options and their corresponding pricing; (b) Licensee voluntarily selected the subscription tier that Licensee determined appropriate for Licensee's needs; (c) Licensee will receive monthly invoices reflecting the selected subscription tier and pricing; (d) Payment of any invoice shall constitute Licensee's acceptance and confirmation of the pricing terms stated therein; and (e) The subscription tier and pricing selected by Licensee shall remain in effect throughout the Term unless modified in accordance with Section 4 below.

A record of Licensee's subscription tier selection and associated pricing as of the Effective Date shall be maintained by Licensor and made available to Licensee upon request.
PAYMENT REQUIREMENTS: Licensee will set up automatic payment to Licensor via credit card, to be paid in advance at the beginning of each month once the Initial Term commences and for each Renewal Term in accordance with the provisions of Section 5 of this Agreement.
SUBSCRIPTION RENEWAL: This Agreement shall renew in accordance with the provisions of Section 13 of this Agreement.
FEE INCREASES: Licensor will notify Licensee of any planned fee increase no less than thirty (30) days in advance in accordance with the provisions of Section 5.1 of this Agreement. Licensor retains right to adjust fees for Licensee at Licensor discretion and agreed upon by Licensee.
AUTHORIZED USERS: Unlimited Authorized Users.
SERVICE LEVELS AND SUPPORT
1. A. Support. Support for the Services will be available between the hours of 9:00AM and 5:00PM Eastern Time, Monday through Friday. All support requests must be submitted to support@lucentpricing.com.
2. B. Availability. Licensor agrees to produce patient cost estimates for Licensee within three (3) business days from receiving the required information from Licensee ("Target Availability").
3. C. Remedy For Failure to Meet Target Availability. If Licensor fails to meet Target Availability five times or more in a monthly billing cycle, as Licensee's sole and exclusive remedy, if Licensee makes a request for service credit within 30 days of the failure, Licensor will credit Licensee's account one week's current monthly subscription fees in any service month. Service Credits will be applied in the month following the service availability failure only.
4. D. Exclusions. Licensor shall not be responsible for, and Licensee shall not be entitled to service credits for, any Service failures caused by: (i) use of the Service by Licensee in a manner not authorized in this Agreement, (ii) Licensee or third party equipment, (iii) third party acts or systems, including standard power up or power down time required by such third party systems, (iv) Scheduled Downtime for maintenance, updates or upgrades; or (v) general Internet problems, force majeure, natural disasters, emergencies, acts of terror or war, or other factors outside of Licensor's control.
SMS TERMS & CONDITIONS
By clicking agree, Client confirms they have received express written consent from each patient to utilize VividPrice by Lucent Pricing to send SMS text messages on Client's behalf related to cost estimates, updates, and service notifications. Client is solely responsible for obtaining, documenting, and maintaining all required patient consents prior to enrollment in SMS communications.
1. A. Message Frequency
  Messages will be sent as needed to provide estimates. Frequency may vary.
2. B. Opt-Out Options
  Patients can opt out of SMS messages at any time by using any of the following methods:
  - Contact Client directly at [CLIENT PHONE NUMBER] to request removal from SMS communications
  - Contact us at sms-support@lucentpricing.com
  After opting out, the patient will no longer receive SMS messages unless they re-subscribe.
  Important: Opting out of SMS messages does not opt you out of communications with your healthcare provider. Please inform your provider directly if you wish to change how they communicate with you regarding your care and billing.
3. C. Help/Support
  For assistance, contact sms-support@lucentpricing.com.
4. D. Message & Data Rates
  Message and data rates may apply depending on your mobile carrier plan. Please check with your carrier for details.
5. E. Delivery
  Carriers are not liable for delayed or undelivered messages. Message delivery is subject to network availability and carrier limitations.
6. F. Supported Carriers
  This service is available on major U.S. carriers including AT&T, T-Mobile, Verizon, Sprint, and other participating carriers. Check with your carrier for compatibility.
7. G. Liability Disclaimer
  VividPrice by Lucent Pricing is not liable for any loss, damages, or costs resulting from use of the SMS service, including but not limited to message delays, delivery failures, technical errors, or any issues related to carrier services or network availability.
8. H. Privacy
  Your information will only be used for communication related to estimates and services. We will not share or sell your phone number to third parties for marketing purposes. Your information is protected in accordance with our Privacy Policy and applicable privacy laws, including HIPAA requirements.
9. I. Client Responsibilities
  Client agrees to:
  - Obtain and maintain valid express written consent from each patient before enrolling them in SMS communications
  - Maintain records of patient consent in accordance with applicable laws and regulations
  - Immediately notify VividPrice of any patient opt-out requests received through other channels
  - Ensure compliance with all applicable telecommunications regulations and healthcare privacy laws
By providing your patients' mobile numbers and confirming enrollment in SMS services, Client acknowledges that they have read and agree to these SMS Terms & Conditions. Client acknowledges that failure to obtain proper patient consent may result in suspension of SMS services and potential liability under applicable telecommunications and privacy laws.

EXHIBIT B

BUSINESS ASSOCIATE AGREEMENT

This Business Associate Agreement (the "Business Associate Agreement"), is made as of the Effective Date of the License and Services Agreement of even date (the "Agreement"), by and between the Licensee, ______________________, having its principal place of business at ______________________________ (the "Covered Entity"), and the Licensor, LUCENT PRICING LLC, a Florida limited liability company, having its principal place of business at 333 3rd Ave N, St Petersburg, FL 33701 (the "Business Associate"), and collectively the "Parties" to comply with privacy standards adopted by the U.S. Department of Health and Human Services as they may be amended from time to time, 45 C.F.R. parts 160 and 164 (the "Privacy Rule") and security standards adopted by the U.S. Department of Health and Human Services as they may be amended from time to time, 45 C.F.R. parts 160, 162 and 164, subpart C (the "Security Rule"), and the Health Information Technology for Economic and Clinical Health (HITECH) Act, Title XIII of Division A and Title IV of Division B of the American Recovery and Reinvestment Act of 2009 and regulations promulgated there under and any applicable state confidentiality laws.

RECITALS

WHEREAS, Business Associate provides services to or on behalf of Covered Entity; and

WHEREAS, in connection with these services, Covered Entity discloses to Business Associate certain protected health information that is subject to protection under the HIPAA Rules; and

WHEREAS, the HIPAA Rules require that Covered Entity receive adequate assurances that Business Associate will comply with certain obligations with respect to the PHI received in the course of providing services to or on behalf of Covered Entity.

NOW THEREFORE, in consideration of the mutual promises and covenants herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:

Definitions
1. Catch-all definition: The following terms used in this Business Associate Agreement shall have the same meaning as those terms in the HIPAA Rules: Breach, Data Aggregation, Designated Record Set, Disclosure, Health Care Operations, Individual, Minimum Necessary, Notice of Privacy Practices, Protected Health Information, Required By Law, Secretary, Security Incident, Subcontractor, Unsecured Protected Health Information, and Use.
2. Specific definitions:
  1. Business Associate. "Business Associate" shall generally have the same meaning as the term "business associate" at 45 CFR 160.103, and in reference to the party to this agreement, shall mean the above captioned party that is stated in the preamble of this Business Associate Agreement.
  2. Covered Entity. "Covered Entity" shall generally have the same meaning as the term "covered entity" at 45 CFR 160.103, and in reference to the party to this agreement, shall mean.
  3. HIPAA Rules. "HIPAA Rules" shall mean the Privacy, Security, Breach Notification, and Enforcement Rules at 45 CFR Part 160 and Part 164.
Obligations and Activities of Business Associate. Business Associate agrees to:
1. Not use or disclose Protected Health Information other than as permitted or required by the Agreement or as required by law;
2. Use appropriate safeguards, and comply with Subpart C of 45 CFR Part 164 with respect to electronic Protected Health Information, to prevent use or disclosure of Protected Health Information other than as provided for by the Agreement;
3. Report to Covered Entity, in writing, within five (5) business days of becoming aware of such use or disclosure, any use or disclosure of Protected Health Information not provided for by the Agreement of which it becomes aware, including breaches of Unsecured Protected Health Information as required at 45 CFR 164.410, and any security incident of which it becomes aware;
4. In accordance with 45 CFR 164.502(e)(1)(ii) and 164.308(b)(2), if applicable, ensure that any subcontractors that create, receive, maintain, or transmit Protected Health Information on behalf of the Business Associate agree to the same restrictions, conditions, and requirements that apply to the Business Associate with respect to such information;
5. Make available Protected Health Information in a designated record set to Covered Entity for inspection and copying within ten (10) days of a request by the Covered Entity to satisfy Covered Entity's obligations under 45 CFR 164.524;
6. Within ten (10) days of receipt of a request from Covered Entity, make any amendment(s) to Protected Health Information in a designated record set as directed or agreed to by the Covered Entity pursuant to 45 CFR 164.526, or take other measures as necessary to satisfy Covered Entity's obligations under 45 CFR 164.526;
  1. If an Individual requests an amendment of PHI directly from Business Associate or its agents or subcontractors, if any, Business Associate must notify Covered Entity in writing within five (5) days of the request.
  2. Any denial of amendment of PHI maintained by Business Associate or its agents or subcontractors, if any, shall be the responsibility of Covered Entity.
  3. Upon the approval of Covered Entity, Business Associate shall appropriately amend the PHI or EPHI maintained by it, or any agents or subcontractors.
7. Maintain and make available within ten (10) days of notice by Covered Entity the information required to provide an accounting of disclosures to the Covered Entity as necessary to satisfy Covered Entity's obligations under 45 CFR 164.528.
  1. If the request for an accounting is delivered directly to Business Associate or its agents or subcontractors, if any, Business Associate shall within five (5) business days of a request notify Covered Entity about such request.
  2. Notwithstanding Section 6, Business Associate and any agents or subcontractors shall continue to maintain the information required for purposes of complying with this Section for a period of six (6) years after termination of the Agreement.
8. To the extent the Business Associate is to carry out one or more of Covered Entity's obligation(s) under Subpart E of 45 CFR Part 164, comply with the requirements of Subpart E that apply to the Covered Entity in the performance of such obligation(s); and
9. Make its internal practices, books, and records available to the Secretary for purposes of determining compliance with the HIPAA Rules.
Permitted Uses and Disclosures by Business Associate
1. Business Associate may only use or disclose Protected Health Information as necessary to perform the services set forth by mutual agreement.
2. Business Associate may use or disclose Protected Health Information as required by law.
3. Business Associate agrees to make uses and disclosures and requests for Protected Health Information consistent with Covered Entity's minimum necessary policies and procedures.
4. Business Associate may not use or disclose Protected Health Information in a manner that would violate Subpart E of 45 CFR Part 164 if done by Covered Entity except for the specific uses and disclosures set forth below;
  1. Business Associate may disclose Protected Health Information 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 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.
  2. Business Associate may provide data aggregation services relating to the health care operations of the Covered Entity in accordance with the underlying agreement.
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 the notice of privacy practices of Covered Entity under 45 CFR 164.520, to the extent that such limitation may affect Business Associate's use or disclosure of Protected Health Information.
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 Protected Health Information, to the extent that such changes may affect Business Associate's use or disclosure of Protected Health Information.
3. Covered Entity shall notify Business Associate of any restriction on the use or disclosure of Protected Health Information that Covered Entity has agreed to or is required to abide by under 45 CFR 164.522, to the extent that such restriction may affect Business Associate's use or disclosure of Protected Health Information.
Permissible Requests by Covered Entity
Term and Termination
1. Term. The Term of this Agreement shall be effective as of the Effective Date, and shall terminate on the date Covered Entity terminates for cause as authorized in paragraph 6.2 of this Section.
2. Termination for Cause. Business Associate authorizes termination of this Business Associate Agreement by Covered Entity, if Covered Entity determines Business Associate has violated a material term of the Agreement. If Business Associate breaches this Business Associate Agreement, Covered Entity may, in its discretion:
  1. Immediately terminate this Business Associate Agreement and the underlying Agreement; or
  2. Provide an opportunity for Business Associate to cure the breach or end the violation and terminate this Agreement if Business Associate does not promptly cure the breach or end the violation within a period not to exceed 30 days; or
  3. Report the violation to the Secretary if neither termination nor cure is feasible.
3. Obligations of Business Associate Upon Termination. Upon termination of this Business Associate Agreement for any reason, Business Associate, with respect to Protected Health Information received from Covered Entity, or created, maintained, or received by Business Associate on behalf of Covered Entity, shall:
  1. Retain only that Protected Health Information 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 destroy the Protected Health Information 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
  3. Return to Covered Entity or destroy the remaining Protected Health Information that the Business Associate still maintains in any form;
  4. If return or destruction of the Protected Health Information is not feasible, continue to use appropriate safeguards and comply with Subpart C of 45 CFR Part 164 with respect to electronic Protected Health Information to prevent use or disclosure of the Protected Health Information, other than as provided for in this Section, for as long as Business Associate retains the Protected Health Information;
  5. Not use or disclose the Protected Health Information retained by Business Associate other than for the purposes for which such Protected Health Information was retained and subject to the same conditions set out above under "Permitted Uses and Disclosures By Business Associate" which applied prior to termination.
4. Survival. The obligations of Business Associate under this Section shall survive the termination of this Business Associate Agreement.
Miscellaneous
1. Nothing express or implied in this Business Associate Agreement is intended to confer, nor shall anything herein confer, upon any person other than Covered Entity, Business Associate, or their respective successors or assigns, any rights, remedies, obligations or liabilities whatsoever.
2. All notices which are required or permitted to be given pursuant to this Business Associate Agreement shall be pursuant to Section 20. NOTICES, in accordance with the Agreement.
3. Capitalized terms shall have the meanings set forth or referred to in Section 1 of the Agreement, unless the are separately defined in this this Business Associate Agreement.
4. The Agreement and this Business Associate Agreement contains the entire understanding between the parties hereto and shall supersede any other oral or written agreements, discussions and understandings of every kind and nature, including any provision in the underlying agreement. No modification, addition to or waiver of any right, obligation or default shall be effective unless in writing and signed by the party against whom the same is sought to be enforced. No delay or failure of either party to exercise any right or remedy available hereunder, at law or in equity, shall act as a waiver of such right or remedy, and any waiver shall not waive any subsequent right, obligation, or default.