1.1 Software License. In consideration of the payment of the amounts set forth in the Software and Services Agreement, Fuel Medical Group, LLC hereby grants to Customer a non-exclusive, non-transferable, limited license (the “License”) to Use the internet-based Software and Documentation at the Location(s) exclusively on the terms and conditions set forth in this Agreement. The License is not assignable or transferable except as provided in Section 15 below. The License conveys neither title to, nor an ownership interest in, the Software or Documentation to Customer, and Customer acknowledges and agrees that Fuel Medical Group, LLC shall retain all rights, title and interest in and to the Software, Documentation and Proprietary Information given or disclosed to Customer.
1.2 Definitions. For purposes of this Agreement, the term “Software” means the internet-based software identified in the Audiology EDGE or Allergy EDGE Software and Services Agreement; the term “Use” means, with respect to the Software, installing and executing the Software instructions for the limited purpose of performing the functions for which the Software was developed on computer hardware approved by Fuel Medical Group, LLC, and in accordance with the Documentation and training provided by Fuel Medical Group, LLC. The term “User” means a computer location that accesses the Software via the internet; the term “Documentation” means all written or electronic technical specifications, accompanying User manuals and patient educational materials provided or disclosed by Fuel Medical Group, LLC for use in connection with the Software.
1.3 Restrictions. Neither Customer, nor its employees, agents or independent contractors shall: decompile, reverse engineer, or otherwise deconstruct or disassemble, or attempt to deconstruct or disassemble, the Software; copy or reproduce Proprietary Information without the prior written consent of Fuel Medical Group, LLC; take any action that would, or would have the effect of, invalidating or otherwise interfering with any of the rights of Fuel Medical Group, LLC in the Proprietary Information; otherwise use, copy, translate, print, distribute, sell or sublicense, or display the Proprietary Information, in whole or in part, except as permitted under Section 1.1.
1.4 Proprietary Information. The Proprietary Information constitutes valuable confidential and proprietary intellectual property, software, patient education materials, copyrights, patents and trade secrets, which are owned exclusively by Fuel Medical Group, LLC. Customer shall maintain commercially reasonable security and nondisclosure protection for Proprietary Information among its employees, agents and independent contractors to enable Customer to perform its affirmative obligations hereunder. Customer shall notify Fuel Medical Group, LLC immediately upon discovery of any prohibited use or disclosure of the Proprietary Information, or any other breach of the confidentiality obligations by Customer, and shall fully cooperate with Fuel Medical Group, LLC to regain possession of the Proprietary Information and prevent the further prohibited use or disclosure of the Proprietary Information. These continuing obligations shall survive termination of this Agreement for any reason.
2. CONFIGURATION, PROVISION OF ACCESS AND ACCEPTANCE.
2.1 Configuration, Provision of Access and Acceptance of Software. Fuel Medical Group, LLC shall configure and provide access to the Software, as soon as practical after execution of the Software and Services Agreement and at such time payment in full has been made to Fuel Medical Group, LLC.
3.1 Initial Training of Customer Personnel. Fuel Medical Group, LLC shall provide initial training in the Use of the Software. The cost of initial training is outlined in the Software and Services Agreement. If Customer has purchased Equipment from Fuel Medical Group, LLC then initial training will include basic operations of the Equipment. Any initial training must be used by Customer within 30 days after installation and/or configuration of the Software, after which Fuel Medical Group, LLC shall no longer be obligated to provide. Initial training SPECIFICALLY DOES NOT INCLUDE: (a) use of other commercial software such as, MS Office or third-party accounting software, (b) use of Windows, and (c) the use of another web software. Customer’s staff is expected to have familiarity with how the Software will interact with the Customer’s clinical workflow.
3.2 Additional Training. Customer may request training in addition to the initial training. Fuel Medical Group, LLC shall provide the additional training at a time mutually agreeable to the parties, and Customer shall pay for the additional training fees and travel expenses outlined in the Software and Services Agreement.
4. SUPPORT SERVICES.
In consideration of the receipt of timely payments of the amounts set forth in the Software and Services Agreement and the performance of Customer’s obligations hereunder, Fuel Medical Group, LLC shall provide access to the following support services (collectively, the “Services”) to Customer:
4.1 Support and Maintenance. Fuel Medical Group, LLC will provide unlimited telephone support for day-to-day questions relating to Use of the Software. Software telephone support will be available during the hours of 8:00 a.m. to 5:00 p.m. (PST time), Monday through Friday with the exception of holidays. Diagnostics and troubleshooting will be done remotely.
4.2 Periodic Upgrades. As part of the Software support services, Fuel Medical Group, LLC will provide periodic enhancements to the Software, in the form of system-wide updates that include new features, improvements and corrections of defects.
4.3 New Products. In addition to the periodic upgrades, Fuel Medical Group, LLC may periodically develop new products, modules and platforms. Software support services do not entitle Customer to automatically receive such new products, modules or platforms under this Agreement; therefore, separate conditions and charges may apply.
4.4 Continuity of Software. In the event that the Software is not operational, Fuel Medical Group, LLC shall use its best efforts to make the Software operational expeditiously. Fuel Medical Group, LLC shall provide Customer with at least seventy-two (72) hours prior written notice of any planned outages.
5. ADDITIONAL SUPPORT SERVICES.
5.1 Consulting and Management. Consulting and management services may be provided to the Customer upon request. The cost of such consulting and management services is outlined in the Software and Services Agreement or will be outlined in a separate quote.
5.2 Customization. Fuel Medical Group, LLC will attempt to accommodate special requests for customization by a Customer in a timely manner. However, additional charges will be assessed for any customization, the exact amount of which will be determined by Fuel Medical Group, LLC based upon the nature of the customization request and as set forth in the Software and Services Agreement. Fuel Medical Group, LLC shall own all right, title and interest in and to any customizations (“Customizations”) to Software developed hereunder and Customer acknowledges and agrees that Customer’s rights to such Customizations are the same as Customer’s rights to the Software.
5.3 Data Conversion Services. If selected by Customer, Fuel Medical Group, LLC shall provide, or contract with third parties to provide, data conversion services for Customer. The fees for such data conversion services are outlined in the Software and Services Agreement. FUEL MEDICAL GROUP, LLC DOES NOT WARRANT AND HEREBY EXPRESSLY DISCLAIMS ANY WARRANTY AS TO THE COMPLETENESS OR ACCURACY OF ANY DATA CONVERTED HEREUNDER. In the event Customer terminates Data Conversion Services, payment to Fuel Medical Group, LLC of all amounts due through the date of notice of termination will be required. Customer is solely responsible for providing all data to be converted in the format specified by Fuel Medical Group, LLC, and Customer shall provide to Fuel Medical Group, LLC such backup documentation as Fuel Medical Group, LLC may request to verify the accuracy of any such conversions. FUEL MEDICAL GROUP, LLC’S LIABILITY ARISING FROM OR RELATING TO DATA CONVERSION SERVICES IS EXPRESSLY LIMITED AS SET FORTH IN SECTION 9 HEREOF.
6. TERMS OF PAYMENT.
6.1 Software and Services. In consideration of the License of the Software and the provision of the Services by Fuel Medical Group, LLC hereunder, Customer shall pay to Fuel Medical Group, LLC the fees set forth in the Software and Services Agreement.
6.2 Payment Conditions. All amounts payable to Fuel Medical Group, LLC pursuant to this Agreement are payable within thirty (30) days of the due date. If not paid by such date, there said unpaid amounts shall be subject to incur a billing charge of 12% per annum until same has been paid in full to Fuel Medical Group, LLC. The Parties agree that the cost of processing overdue accounts is extremely difficult or impossible to determine and agree that the billing charge constitutes a reasonable estimate of the costs and damages to Fuel Medical Group, LLC for the collection of overdue accounts without litigation. Payment and receipt of this billing amount is not to be construed as an agreement that payment may be deferred or a waiver of any payment default.
7. CUSTOMER RESPONSIBILITIES.
As part of the consideration for the Services, and as a condition to Fuel Medical Group, LLC’s obligations hereunder, Customer shall undertake and perform the following duties at its sole cost and expense:
7.1 Internet Access. Customer agrees to provide and maintain, during the term of this Agreement, acceptable internet access for the Users. Customer further agrees to maintain such internet access with less than a 5% downtime. Fuel Medical Group, LLC does not warrant nor assume any responsibility for internet access.
7.2 Cabling & Wi-Fi. Customer is responsible for the necessary cabling of the local area network or maintaining Wi-Fi network.
7.3 Point of Contact. Customer agrees to designate a suitable member of its staff as Customer’s primary point of contact at each Location to act on its behalf. The primary point of contact must be knowledgeable in the operation of the Customer’s business and have been trained by Fuel Medical Group, LLC in the operation of the Software.
7.4 Operation and Maintenance. Customer shall operate and maintain the information contained in the Software with the procedures, regulations and instructions issued by Fuel Medical Group, LLC.
7.5 Access. Customer shall ensure that Fuel Medical Group, LLC’s representatives shall have full and unrestricted access to the Software for the purpose of carrying out Fuel Medical Group, LLC’s obligations and exercising Fuel Medical Group, LLC’s rights under the Agreement.
7.6 Authorized Personnel. Customer shall notify Fuel Medical Group, LLC from time to time of the names of Customer’s personnel who are authorized to request Fuel Medical Group, LLC to perform any of its obligations under this Agreement. All such requests shall be made only by or on behalf of such personnel.
7.7 Confidentiality. The Customer shall maintain strict confidentiality of the fees outlined in the Software and Services Agreement. Failure to adhere to this confidentiality requirement may be deemed by Fuel Medical Group, LLC in its sole discretion as grounds for termination and/or an increase in the fees outlined in the Software and Services Agreement.
8. FUEL MEDICAL GROUP, LLC’S LIMITED WARRANTY.
8.1 Limited Software Warranty. Subject to the Use of the Software via the internet by Customer solely in compliance with this Agreement, Fuel Medical Group, LLC warrants:
8.1.1 That it owns the Software and has sufficient rights to grant the License to Customer without restriction and that the Software will be the latest release of the Software then available from Fuel Medical Group, LLC.
8.1.2 Fuel Medical Group, LLC does not warrant that the Software will be error-free or will operate without interruption. Fuel Medical Group, LLC does not warrant that the Software will operate in combination with other software. Provided Customer is in full compliance with its obligations under this Agreement, Fuel Medical Group, LLC warrants that it will promptly remedy any Major Defect in the operation of the Software. For purposes of this Agreement, the term “Major Defect” means a material failure of the Software to function in accordance with specifications published by Fuel Medical Group, LLC. Fuel Medical Group, LLC represents and warrants to Customer that Fuel Medical Group, LLC will ensure that it will use reasonable efforts to obtain all necessary registrations and licenses required for the performance of its duties hereunder. Fuel Medical Group, LLC represents and warrants to Customer that the Software created and maintained by Fuel Medical Group, LLC, as described herein, is and will at all times be fully compliant with all applicable laws, rules, regulations and ordinances, including but not limited to all known federal and state privacy standards for health records, including, without limitation, the electronic transaction and privacy standards mandated by HIPAA. Fuel Medical Group, LLC represents and warrants that all services provided hereunder shall be in accordance with procedures that are compliant with best practices for account security, encryption and/or authentication. Fuel Medical Group, LLC represents and warrants that it owns or has the legal right and authority and will continue to own or maintain legal right and authority during the term of this Agreement to provide the services as contemplated by this Agreement. Fuel Medical Group, LLC represents and warrants that Fuel Medical Group, LLC is duly organized and validly existing and has the legal power and authority to enter into this Agreement and to perform its obligations hereunder. Fuel Medical Group, LLC represents and warrants that the person signing this Agreement on behalf of Fuel Medical Group, LLC is duly authorized to do so and upon execution by such person, this Agreement is the valid and legally binding obligation of Fuel Medical Group, LLC.
8.1.3 If the limited Software warranty set forth in this Section 8.1 is breached, Fuel Medical Group, LLC’s sole obligation will be to use commercially reasonable efforts to provide a Software update to correct any Major Defect. Fuel Medical Group, LLC has no obligation to repair any Major Defect that results from accident, abuse, misapplication, or any effort to decompile or modify the Software.
8.1.4 ALL SOFTWARE WARRANTIES SET FORTH IN THIS SECTION 8.1 SHALL BE INVALIDATED BY CUSTOMER’S MODIFICATION OF THE SOFTWARE OR USE OF THE SOFTWARE IN VIOLATION OF THIS AGREEMENT.
8.2 Disclaimer of All Equipment and Third-Party Software Warranties. CUSTOMER ACKNOWLEDGES THAT FUEL MEDICAL GROUP, LLC DOES NOT MANUFACTURE EQUIPMENT AND DOES NOT WARRANT ITS DESIGN OR WORKMANSHIP. TO THE EXTENT ASSIGNABLE, FUEL MEDICAL GROUP, LLC HEREBY ASSIGNS TO CUSTOMER ALL WARRANTIES, IF ANY, ISSUED TO FUEL MEDICAL GROUP, LLC BY THE MANUFACTURER OF EQUIPMENT. FUEL MEDICAL GROUP, LLC DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, WITH REGARD TO THIRD PARTY SOFTWARE.
8.3 Disclaimer of Warranties. OTHER THAN AS EXPRESSLY SET FORTH IN THIS SECTION 8, FUEL MEDICAL GROUP, LLC DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH REGARD TO EQUIPMENT, THIRD PARTY SOFTWARE AND THE SOFTWARE, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
8.4 No Other Warranty. No employee, agent, representative or independent contractor of Fuel Medical Group, LLC has any authority to bind Fuel Medical Group, LLC to any affirmation, representation, or warranty concerning the Software licensed under this Agreement other than those set forth herein. CUSTOMER ACKNOWLEDGES THAT FUEL MEDICAL GROUP, LLC HAS MADE NO REPRESENTATIONS REGARDING WARRANTY OR PERFORMANCE OR CAPABILITY OTHER THAN STATED IN THIS SECTION 8.
9. FUEL MEDICAL GROUP, LLC’S LIMITED LIABILITY.
9.1 No Liability for Consequential Damages. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS OR LOST DATA, INCURRED BY THE OTHER PARTY, ARISING OUT OF, OR IN CONNECTION WITH, THE SOFTWARE, SERVICES, ADDITIONAL SUPPORT SERVICES, OR THIS AGREEMENT, REGARDLESS OF WHETHER THE POSSIBILITY OF SUCH DAMAGES WAS DISCLOSED TO, OR COULD HAVE REASONABLY BEEN FORESEEN BY, SAID PARTY.
10.1 By Fuel Medical Group, LLC. Fuel Medical Group, LLC agrees to, and shall, indemnify, defend and hold harmless Customer from and against any and all claims, actions whether at law or in equity, damages, costs and expenses (including reasonable attorneys’ fees and all costs of defense), whether accrued or paid, subject to the limitations in Section 9, arising from or in connection with any patent, trade secret or copyright infringement suit brought against Customer alleging infringement of a third party’s patents, trade secrets or copyrights by reason of Customer’s Use of the Software in compliance with this Agreement (collectively, “Infringement Claims”). Within fifteen (15) days after either Party receives knowledge of any Infringement Claims or actions subject to this Section 10.1, such Party shall notify the other Party thereof. Fuel Medical Group, LLC reserves the right, at Fuel Medical Group, LLC’s expense, to control the defense of any such Infringement Claims, including the selection of counsel. Customer shall also have the right to participate in such litigation with counsel of its own choosing, at its own cost. Fuel Medical Group, LLC’s obligations under this Section 10.1 shall survive the Termination of this Agreement for any reason.
10.2 By Customer. Customer agrees to, and shall, indemnify, defend and hold harmless Fuel Medical Group, LLC from any and all claims, actions whether at law or in equity, loss, damages, costs and expenses (including reasonable attorneys’ fees and all costs of defense), whether accrued or paid, arising from or in connection with the performance of Customer’s obligations hereunder, and all loss, damage or injury to any person or property occasioned by or arising from the possession, and the operation, Use or modification, of the Software by the employees, agents, representatives, independent contractors, guests and invitees of Customer, except only Infringement Claims and damages or claims caused by the willful misconduct or gross negligence of Fuel Medical Group, LLC. Within fifteen (15) days after either Party receives knowledge of any such claims or actions subject to this Section 10.2, such Party shall notify the other Party thereof. If any such claim is initiated by a third party against Fuel Medical Group, LLC and a claim for indemnity is made by Fuel Medical Group, LLC against Customer hereunder, Customer reserves the right, at Customer’s expense, to control the defense of any such third party claim, including the selection of counsel. Fuel Medical Group, LLC shall also have the right to participate in such litigation with counsel of its own choosing, at its own cost. Customer’s obligations under this Section 10.2 shall survive the Termination of this Agreement for any reason.
11. TERM AND TERMINATION.
11.1 Effective Date and Term. This Agreement shall be effective commencing upon the Effective Date and shall initially continue in effect thereafter for One (1) successive Contract Year, unless earlier terminated as provided in this Agreement. Thereafter, this Agreement shall automatically renew for one (1) successive Contract Year, unless earlier terminated as provided in this Agreement. For purposes of this Agreement, the term “Commencement Date” means the first day of the next month following the date on which the Software has been configured and made accessible to the Location, and the term “Contract Year” means each successive twelve-month period during the term of this Agreement, commencing on the Commencement Date.
11.2 Elective Termination. Either Party may terminate this Agreement and the Software and Service Agreement at any time, for any reason or no reason, upon written notice to the other Party not less than ninety (60) days prior to such termination.
11.3 Default. At any time, a non-defaulting Party may, at its election, terminate this Agreement immediately upon written notice to the defaulting Party in the event of any of the following events of default:
11.3.1 Customer fails to make timely payment of all amounts due within thirty (30) days after the date on which any payment shall become due and payable if said default has not been cured within thirty (30) days following written notice of such breach or default from Fuel Medical Group, LLC;
11.3.2 A Party materially breaches this Agreement or is in material default of any obligation hereunder, which default is incapable of cure or which, being capable of cure, has not been cured within thirty (30) days following written notice of such breach or default from the non-defaulting Party;
11.3.3 A Party becomes insolvent or adjudicated bankrupt; or any action bankruptcy or reorganization act, and such action is not fully dismissed within sixty (60) days after the institution thereof; or if a Party makes an assignment for the benefit of creditors; or if a receiver shall be appointed for a Party;
11.3.4 A Party fails to comply with HIPAA.
11.4 Rights and Obligations of Parties on Termination.
11.4.1 In the event this Agreement is terminated due to a default or breach by Customer, within fifteen (15) days following the date of Termination of this Agreement, Customer shall make a final payment to Fuel Medical Group, LLC in an amount equal to three (3) months of the monthly charges set for in the Software and Services Agreement.
11.4.2 Upon the date of Termination of this Agreement for any reason, upon request Fuel Medical Group, LLC shall provide to Customer or a third party designated by Customer the patient data stored in the Software. Such patient data will be provided by Fuel Medical Group, LLC to the Customer in comma delimited electronic format or Excel electronic format. The fee for this data export, will be based on hourly rates outlined in the Software and Services Agreement. Customer shall deliver to Fuel Medical Group, LLC’s main office or destroy all Proprietary Information provided by Fuel Medical Group, LLC to the Customer.
11.4.3 The rights of either Party to terminate this Agreement shall not be exclusive of any other remedies given either Party by this Agreement or by law. All rights of each Party regarding defaults of the other Party hereunder are cumulative.
11.4.4 Termination of this Agreement under any circumstances shall not abrogate, impair, release, or extinguish any debt, obligation, or liability of either Party to the other which may have accrued prior to Termination, including without limitation, any such debt, obligation, or liability which was the cause of Termination or arose out of such cause.
11.5 Injunctive Relief. In the event that either party breaches any provisions of this Agreement or there is a threatened breach, then, in addition to any other rights and remedies, which the other non-breaching party may have, the non-breaching party shall be entitled to injunctive relief to enforce the restrictions contained herein without the requirement of posting a bond or other security. In the event that an actual proceeding is brought in equity to enforce the provisions of this Agreement, Customer acknowledges that actual damages will be difficult to ascertain and, in any event, will be inadequate to protect Fuel Medical Group, LLC from such breach. Accordingly, Customer shall not urge as a defense that there is an adequate remedy at law nor shall Fuel Medical Group, LLC be prevented from seeking any other remedies, which may be available.
11.6 Force Majeure. Neither party shall be liable for its failure to perform its obligations under this Agreement because of acts of God, nature, or a federal, state or local government agency, war, civil disturbance, labor disputes or shortages, and any other cause beyond said party’s control; provided, however, that the provisions of this Section 11.6 shall not apply to Customer’s obligations to accept delivery of the Software or a party’s obligation to make any payment due to the other party after performance by such party.
12. INDEPENDENT CONTRACTORS.
The Parties hereto are contractors independent of one another. This Agreement does not in any way create the relationship of partnership, or principal and agent between the Parties. Neither Party shall act, or represent itself, directly or by implication, a partner or an agent of the other Party or in any manner assume or create any obligation on behalf of or in the name of the other Party.
13. LICENSES AND PERMITS.
If any governmental license or permit shall be required for the proper and lawful conduct of either Party’s activities under this Agreement and if a failure to procure such a license or permit might or would in any way affect the operations of either Party, then such Party, at its expense, shall duly procure and thereafter maintain such license or permit and submit the same for inspection by the other Party. Each Party, at its sole cost and expenses, shall at all times comply with the requirements of each license or permit.
Customer agrees that during the term of this Agreement and for a period of three (3) years thereafter, neither party shall solicit, entice, encourage or induce (hereinafter collectively “solicit”) any person who at any time during the term of this Agreement shall have been an employee, staff, temporary personnel or technical personnel of the other party to cease being an employee, staff, temporary personnel, technical personnel and to become employed by or associated with the other party. Neither party shall approach any such person for such purpose or authorize or knowingly approve the taking of such actions by any other person, firm or corporation or assist any person, firm or corporation in taking such action.
15.1 By Customer. Customer shall not assign its rights or obligations under this Agreement, or any interest herein (except in connection with the transfer of its practice) without the prior written consent of Fuel Medical Group, LLC, which consent Fuel Medical Group, LLC shall not unreasonably withhold. Consent to one assignment, or Use by any other person, shall not be deemed to be a consent to any subsequent assignment, or Use by another person. Any assignment or subletting without such consent shall be void, at the option of Fuel Medical Group, LLC
15.2 By Fuel Medical Group, LLC. Fuel Medical Group, LLC shall have the right to assign, and Customer consents to such assignment by Fuel Medical Group, LLC, of the Agreement and all amounts payable by Customer to Fuel Medical Group, LLC, or to become payable, hereunder. Upon receipt of written notice of any such assignment by Fuel Medical Group, LLC of any of its interest in this Agreement, the Software or Documentation, or any portion of its interest in any part thereof, Customer shall be deemed to have acknowledged and consented to such assignment, and with respect to any such assignment, Customer agrees to make each payment assigned thereby directly to such assignee as directed by Fuel Medical Group, LLC. Such assignment shall not release Fuel Medical Group, LLC from its obligations hereunder.
16. GENERAL PROVISIONS.
16.1 Authority. Each Party represents and warrants that the execution, delivery and compliance with the terms of this Agreement by such Party and consummation by it of the transactions contemplated hereby have been duly and validly authorized by all necessary corporate or other action and the agreements contained herein constitute valid and legally binding obligations and are enforceable in accordance with their terms, except to the extent that the enforceability thereof may be affected by the bankruptcy, insolvency or other laws of general application affecting the enforcement of creditors’ rights and by general principles of equity.
16.2 No Conflicting Agreements. Each Party represents and warrants that the execution and delivery of this Agreement by such Party does not, and compliance by it with the terms hereof and consummation by it of the transactions contemplated hereby will not (a) violate any existing term or provision of any Law, regulation, statute, ordinance, rule, order, writ, judgment, injunction or decree; (b) conflict with or result in a breach of any of the terms, conditions, or provisions of any agreement or instrument to which it is a party or by which it or any of its assets or properties is bound or subject; or (c) give to others any right of Termination, cancellation, acceleration or modification in or with respect to any agreement or instrument to which it is a Party or by which its assets or properties may be bound, and as to which will adversely affect its ability to consummate the transactions contemplated hereby.
16.3 Notices. All notices under this Agreement shall be effective upon personal delivery to the respective Party, or upon transmission by facsimile, or forty-eight (48) hours either after deposit in the United States mail, certified mail/return receipt requested, First Class postage prepaid, or after delivery to an aviation express delivery service, and addressed to the respective Party at the number or address set forth immediately below the signature of that Party at the end of this Agreement. Notwithstanding the foregoing, either Party may change its address or number by giving notice in any manner set forth above.
16.4 Legal Fees. In any arbitration or civil action between Fuel Medical Group, LLC and Customer arising from or in connection with this Agreement, or its breach, the prevailing Party in such action shall be entitled, in addition to damages and injunctive or other relief, to its costs and expenses incurred pursuant to this Agreement, including reasonable attorneys’ fees.
16.5 Partial Invalidity. If any provision in this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions of this Agreement shall nevertheless continue in full force without being impaired or invalidated in any way.
16.6 Waiver. The failure of either Party to insist on strict compliance with any of the terms, covenants, or conditions of this Agreement by the other Party shall not be deemed a waiver of that term, covenant, or condition, nor shall any waiver or relinquishment of any right or power at any one time or times be deemed a waiver or relinquishment of that right or power for all or any other times.
16.7 Entire Agreement. This Agreement, the Software and Service Agreement as well as the incorporated exhibits and schedules hereto constitute the entire agreement between Fuel Medical Group, LLC and Customer as to the subject matter hereof, superseding all previous communications and negotiations, whether written or oral. The terms and conditions of this Agreement shall prevail over any additional or conflicting terms of any payment invoice or memorandum submitted to Customer by Fuel Medical Group, LLC. Except as otherwise provided in this Agreement, no modification of this Agreement shall be binding unless it is in writing and has been made available by Fuel Medical Group, LLC to the Customer.
16.8 Governing Law: Arbitration. This Agreement shall be governed by and construed in accordance with the Laws of the State of Washington applicable to agreements made and to be performed entirely within such State, without regard to the conflicts of law principles of such State, and federal laws governing copyright, patent and trademark. The parties hereby irrevocably and unconditionally agree that any dispute between them arising out of or relating in any way to this Agreement or the transactions arising hereunder or contemplated hereby shall be settled by binding arbitration in accordance with the Federal Arbitration Act and the then current commercial arbitration rules of the American Arbitration Association. Arbitration hereunder shall be held in Vancouver, Washington, or such other place as the Parties may agree. The substantive and procedural law of the State of Washington shall apply to the arbitration proceedings. Equitable remedies shall be available in any arbitration; provided, however, that the institution of arbitration proceedings shall not prevent either Party from seeking injunctive relief in a court of competent jurisdiction. The substantially prevailing party shall be entitled to collect from the other party reasonable attorney’s fees and costs, unless the arbitration award specifies otherwise. Judgment upon the award rendered in any arbitration may be entered in any court having jurisdiction thereof, or application may be made to such court for a judicial acceptance of the award and enforcement thereof, as the law of such jurisdiction may require or allow. With the exception of suits seeking injunctive relief, Fuel Medical Group, LLC and Customer are prohibited from filing any action in law or equity with respect to the dispute before an arbitration award is made.
16.9 In addition to the above, the parties agree to comply with the Health Insurance Portability and Accountability Act of 1996, Pub. L. No. 104–191, as amended, and any and all applicable regulations promulgated thereunder (collectively, “HIPAA”) and enter into a business associate addendum which is attached hereto as Exhibit “B”. The Parties further agree to comply with the Health Information Technology for Economic and Clinical Health, Pub. Law No. 111-5 (the “HITECH” Act).
BUSINESS ASSOCIATE ADDENDUM
This Business Associate Addendum (“Addendum”) supplements and is made a part of the Agreement (“Agreement”) by and between Covered Entity (“CE”) and Fuel Medical Group, LLC. DBA EDGE, a Business Associate (“BA”), and is dated to be effective as of the date this Addendum was agreed to (the “Addendum Effective Date”). This Addendum supersedes and amends in its entirety any prior Business Associate Addendum executed by and between the parties.
A. CE wishes to disclose certain information to BA pursuant to the terms of the Agreement, some of which may constitute Protected Health Information (“PHI”) (defined below).
B. CE and BA intend to protect the privacy and provide for the security of PHI disclosed to BA pursuant to the Agreement in compliance with the Health Insurance Portability and Accountability Act of 1996, Public Law 104-191 (“HIPAA”), the Health Information Technology for Economic and Clinical Health Act, Public Law 111-005 (“the HITECH Act”), and regulations promulgated thereunder by the U.S. Department of Health and Human Services (the “HIPAA Regulations”) and other applicable laws.
C. As part of the HIPAA Regulations, the Privacy Rule and the Security Rule (defined below) require CE to enter into a contract containing specific requirements with BA prior to the disclosure of PHI, as set forth in, but not limited to, Title 45, Sections 164.314(a), 164.502(e) and 164.504(e) of the Code of Federal Regulations (“C.F.R.”) and contained in this Addendum.
In consideration of the mutual promises below and the exchange of information pursuant to this Addendum, the parties agree as follows:
a. Breach shall have the meaning given to such term under the HITECH Act [ 42 U.S.C. Section 17921 ].
b. Business Associate shall have the meaning given to such term under the Privacy Rule, the Security Rule, and the HITECH Act, including, but not limited to, 42 U.S.C. Section 17938 and 45 C.F.R. Section 160.103.
c. Covered Entity shall have the meaning given to such term under the Privacy Rule and the Security Rule, including, but not limited to, 45 C.F.R. Section 160.103.
d. Aggregate Data shall refer to Customer Data with the following removed: personally identifiable information and the names and addresses of Customer and any of its Users or customers. Data Aggregation shall have the meaning given to such term under the Privacy Rule, including, but not limited to, 45 CFR. Section 164.501.
e. Designated Record Set shall have the meaning given to such term under the Privacy Rule, including, but not limited to, 45 C.F.R. Section 164.501.
f. Electronic Protected Health Information means Protected Health Information that is maintained in or transmitted by electronic media.
g. Electronic Health Record shall have the meaning given to such term in the HITECH Act, including, but not limited to, 42 U.S.C. Section 17921.
h. Health Care Operations shall have the meaning given to such term under the Privacy Rule, including, but not limited to, 45 C.F.R. Section 164.501.
i. Privacy Rule shall mean the HIPAA Regulation that is codified at 45 C.F.R. Parts 160 and 164, Subparts A and E.
j. Protected Health Information or PHI means any information, whether oral or recorded in any form or medium: (1) that relates to the past, present or future physical or mental condition of an individual; the provision of health care to an individual; or the past, present or future payment for the provision of health care to an individual; and (ii) that identifies the individual or with respect to which there is a reasonable basis to believe the information can be used to identify the individual, and shall have the meaning given to such term under the Privacy Rule, including, but not limited to, 45 C.F.R. Section 164.501. Protected Health Information includes Electronic Protected Health Information [ 45 C.F.R. Sections 160.103, 164.501].
k. Protected Information shall mean PHI provided by CE to BA or created or received by BA on CE’s behalf.
l. Security Rule shall mean the HIPAA Regulation that is codified at 45 C.F.R. Parts 160 and 164, Subparts A and C.
m. Unsecured PHI shall have the meaning given to such term under the HITECH Act and any guidance issued pursuant to such Act including, but not limited to, 42 U.S.C. Section 17932(h).
2. Obligations of Business Associate
a. Permitted Uses. BA shall not use Protected Information except for the purpose of performing BA’s obligations under the Agreement and as permitted under the Agreement and Addendum. Further, BA shall not use Protected Information in any manner that would constitute a violation of the Privacy Rule or the HITECH Act if so used by CE.
b. Permitted Disclosures. BA shall not disclose Protected Information in any manner that would constitute a violation of the Privacy Rule or the HITECH Act if so disclosed by CE. If BA rightfully discloses Protected Information to a third party, BA must obtain, prior to making any such disclosure, (i) reasonable written assurances from such third party that such Protected Information will be held confidential as provided pursuant to this Addendum and only disclosed as required by law or for the purposes for which it was disclosed to such third party, and (ii) a written agreement from such third party to immediately notify BA of any breaches of confidentiality of the Protected Information, to the extent it has obtained knowledge of such breach [ 42 U.S.C. Section 17932; 45 C.F.R. Sections 164.504(e)(2)(i), 164.504(e)(2)(i)(B), 164.504 (e)(2)(i i)(A) and 164.504(e)(4)(ii) ].
c. Prohibited Uses and Disclosures. BA may use Protected Information as necessary to perform its obligations under the Agreement. BA shall not use or disclose Protected Information for fundraising or marketing purposes. BA shall not disclose Protected Information to a health plan for payment or health care operations purposes if the patient has requested this special restriction and has paid out of pocket in full for the health care item or service to which the PHI solely relates 42 U.S.C. Section 17935(a). BA shall not directly or indirectly receive remuneration in exchange for Protected Information, except with the prior written consent of CE and as permitted by the HITECH Act, 42 U.S.C. Section 17935(d)(2); however, this prohibition shall not affect payment by CE to BA for services provided pursuant to the Agreement. BA may use, reproduce, sell, publicize, or otherwise exploit Aggregate Data in any way, in its sole discretion.
d. Appropriate Safeguards. BA shall implement appropriate safeguards as are necessary to prevent the use or disclosure of Protected Information otherwise than as permitted by the Agreement or Addendum, including, but not limited to, administrative, physical and technical safeguards that reasonably and appropriately protect the confidentiality, integrity and availability of the Protected Information, in accordance with 45 C.F.R. Sections 164.308, 164.310, and 164.312. [ 45 C.F.R. Section 164.504(e)(2)(ii)(B); 45 C.F.R. Section 164.308(b) ]. BA shall comply with the policies and procedures and documentation requirements of the HIPAA Security Rule, including, but not limited to. 45 C.F.R. Section 164.316. [ 42 U.S.C. Section 17931]
e. Reporting of Improper Access, Use or Disclosure. BA shall report to CE in writing of any access, use or disclosure of Protected Information not permitted by the Agreement and Addendum, and any Breach of Unsecured PHI of which it becomes aware without unreasonable delay and in no case later than 10 calendar days after discovery [ 42 U.S.C, Section 17921; 45 C.F.R. Section 164.504(e)(2)(ii)(C); 45 C.F.R. Section 164.308(b) ].
f. Business Associate’s Agents. BA shall ensure that any agents, including subcontractors, to whom it provides Protected Information, agree in writing to the same restrictions and conditions that apply to BA with respect to such PHI and implement the safeguards required by paragraph c above with respect to Electronic PHI [ 45 C.F.R. Section 164.504(e)(2)(ii)(D); 45 C.F.R. Section 164.308(b) ]. BA shall implement and maintain sanctions against agents and subcontractors that violate such restrictions and conditions and shall mitigate the effects of any such violation (see 45 C.F.R. Sections 164.5300 and 164.530(e)(1)).
g. Access to Protected Information. BA shall make Protected Information maintained by BA or its agents or subcontractors in Designated Record Sets available to CE for inspection and copying within ten (10) days of a request by CE to enable CE to fulfill its obligations under the Privacy Rule, including, but not limited to, 45 C.F.R. Section 164.524 [ 45 C.F.R. Section 164.504(e)(2)(ii)(E) ]. If BA maintains an Electronic Health Record, BA shall provide such information in electronic format to enable CE to fulfill its obligations under the HITECH Act, including, but not limited to, 42 U.S.C. Section 17935(e).
h. Amendment of PHI. Within ten (10) days of receipt of a request from CE for an amendment of Protected Information or a record about an individual contained in a Designated Record Set, BA or its agents or subcontractors shall make such Protected Information available to CE for amendment and incorporate any such amendment to enable CE to fulfill its obligations under the Privacy Rule, including, but not limited to, 45 C.F.R. Section 164.526. If any individual requests an amendment of Protected Information directly from BA or its agents or subcontractors, BA must notify CE in writing within five (5) days of the request. Any approval or denial of amendment of Protected Information maintained by BA or its agents or subcontractors shall be the responsibility of CE [ 45 C.F.R. Section 164.504(e)(2)(ii)(F) ].
i. Accounting Rights. Within ten (10) days of notice by CE of a request for an accounting of disclosures of Protected Information, BA and its agents or subcontractors shall make available to CF the information required to provide an accounting of disclosures to enable CE to fulfill its obligations under the Privacy Rule, including, but not limited to, 45 C.F.R. Section 164.528, and the HITECH Act, including but not limited to 42 U.S.C. Section 17935(c), as determined by CE. BA agrees to implement a process that allows for an accounting to be collected and maintained by BA and its agents or subcontractors for at least six (6) years prior to the request. However, accounting of disclosures from an Electronic Health Record for treatment, payment or health care operations purposes are required to be collected and maintained for only three (3) years prior to the request, and only to the extent that BA maintains an electronic health record and is subject to this requirement. At a minimum, the information collected and maintained shall include: (i) the date of disclosure; (ii) the name of the entity or person who received Protected Information and, if known, the address of the entity or person; (iii) a brief description of Protected Information disclosed; and (iv) a brief statement of purpose of the disclosure that reasonably informs the individual of the basis for the disclosure, or a copy of the individual’s authorization, or a copy of the written request for disclosure. in the event that the request for an accounting is delivered directly to BA or its agents or subcontractors, BA shall within five (5) days of a request forward it to CE in writing. It shall be CE’s responsibility to prepare and deliver any such accounting requested. BA shall not disclose any Protected Information except as set forth in Sections 2.b. of this Addendum [ 45 C.F.R. Sections 164.504(e)(2)(ii)(G) and 165.528]. The provisions of this subparagraph (i) shall survive the termination of this Agreement.
j. Governmental Access to Records. BA shall make its internal practices, books and records relating to the use and disclosure of Protected Information available to CE and to the Secretary of the U.S. Department of Health and Human Services (the “Secretary”) for purposes of determining BA’s compliance with the Privacy Rule [ 45 C.F.R. Section 164.504(e)(2)(ii)(H) J. BA shall provide to CE a copy of any Protected Information that BA provides to the Secretary concurrently with providing such Protected Information to the Secretary.
k. Minimum Necessary. BA (and its agents or subcontractors) shall request, use and disclose only the minimum amount of Protected Information necessary to accomplish the purpose of the request, use or disclosure. [ 42 U.S.C. Section 17935(b); 45 C.F.R. Section 164.514(d)(3) ] BA understands and agrees that the definition of “minimum necessary” is in flux and shall keep itself informed of guidance issued by the Secretary with respect to what constitutes “minimum necessary.”
l. Data Ownership. BA acknowledges that BA has no ownership rights with respect to the Protected Information and CE acknowledges that BA has exclusive ownership rights with respect to the Aggregate Data.
m. Notification of Breach. During the term of the Agreement, BA shall notify CE within twenty-four (24) hours of any suspected or actual breach of security, intrusion or unauthorized use or disclosure of PHI of which BA becomes aware and/or any actual or suspected use or disclosure of data in violation of any applicable federal or state laws or regulations. BA shall take (i) prompt corrective action to cure any such deficiencies and (ii) any action pertaining to such unauthorized disclosure required by applicable federal and state laws and regulations.
n. Breach Pattern or Practice by Covered Entity. Pursuant to 42 U.S.C. Section 17934(b), if the BA knows of a pattern of activity or practice of the CE that constitutes a material breach or violation of the CE’s obligations under the Agreement or Addendum or other arrangement, the BA must take reasonable steps to cure the breach or end the violation. If the steps are unsuccessful, the BA must terminate the Agreement or other arrangement if feasible, or if termination is not feasible, report the problem to the Secretary of DHHS. BA shall provide written notice to CE of any pattern of activity or practice of the CE that BA believes constitutes a material breach or violation of the CE’s obligations under the Agreement or Addendum or other arrangement within five (5) days of discovery and shall meet with CE to discuss and attempt to resolve the problem as one of the reasonable steps to cure the breach or end the violation.
o. Audits, Inspection and Enforcement. Within ten (10) days of a written request by CE, BA and its agents or subcontractors shall allow CE to conduct a reasonable inspection of the facilities, systems, books, records, agreements, policies and procedures relating to the use or disclosure of Protected Information pursuant to this Addendum for the purpose of determining whether BA has complied with this Addendum; provided, however, that (i) BA and CE shall mutually agree in advance upon the scope, timing and location of such an inspection, (ii) CE shall protect the confidentiality of all confidential and proprietary information of BA to which CE has access during the course of such inspection; and (iii) CE shall execute a nondisclosure agreement, upon terms mutually agreed upon by the parties, if requested by BA. The fact that CE inspects, or fails to inspect, or has the right to inspect, BA’s facilities, systems, books, records, agreements, policies and procedures does not relieve BA of its responsibility to comply with this Addendum, nor does CE’s (i) failure to detect or (ii) detection, but failure to notify BA or require BA’s remediation of any unsatisfactory practices, constitute acceptance of such practice or a waiver of CE’s enforcement rights under the Agreement or Addendum, BA shall notify CE within ten (10) days of learning that BA has become the subject of an audit, compliance review, or complaint investigation by the (Vice for Civil Rights.
p. Subcontractors. BA agrees to ensure that any subcontractors that create, receive, maintain, or transmit PHI on behalf of the BA to the same restrictions, conditions, and requirements that apply to the BA with respect to such information, in accordance with 45 CFR §§ 164.502(e)(1)(ii) and 164.308(b)(2).
q. Access to PHI. To the extent that BA possesses an applicable designated record set, and within a reasonable amount of time of receipt of a request from CE or individual to access such PHI, BA shall make available such PHI, to the extent required for CE’s compliance with its obligations under 45 C.F.R. §164.524.
r. Amendment of PHI. To the extent that BA possesses an applicable designated record set, and within a reasonable amount of time of receipt of a request from CE or Individual, BA shall make any amendment(s) to such PHI 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.
s. Accounting. BA shall document and make available such disclosures of PHI as would be required for CE to respond to a request by an Individual for an accounting of disclosures of PHI in accordance with 45 C.F.R. §164.528.
t. Compliance with Covered Entity Obligations. To the extent the BA is to carry out one or more of CE’s obligation(s) under Subpart E of 45 CFR Part 164, Business Associate shall comply with the requirements of Subpart E that apply to the CE in the performance of such obligation(s).
u. Availability of Compliance Records. BA shall make its internal practices, books, and records available to the Secretary for purposes of determining compliance with the HIPAA Rules.
a. Material Breach. A breach by BA of any provision of this Addendum, as determined by CE, shall constitute a material breach of the Agreement and shall provide grounds for immediate termination of the Agreement, any provision in the Agreement to the contrary notwithstanding. [ 45 C.F.R. Section 164.504(e)(2)(iii) ].
b. Judicial or Administrative Proceedings. CE may terminate the Agreement, effective immediately, if (i) BA is named as a defendant in a criminal proceeding for a violation of HIPAA, the HITECH Act, the HIPAA Regulations or other security or privacy laws or (ii) a finding or stipulation that the BA has violated any standard or requirement of HIPAA, the HITECH Act, the HIPAA Regulations or other security or privacy laws is made in any administrative or civil proceeding in which the party has been joined.
c. Effect of Termination. Upon termination of the Agreement for any reason, BA shall, at the option of CE, return or destroy all Protected Information that BA or its agents or subcontractors still maintain in any form, and shall retain no copies of such Protected Information. If return or destruction is not feasible, as determined by CE, BA shall continue to extend the protections of Section 2 of this Addendum to such information, and limit further use of such PHI to those purposes that make the return or destruction of such PHI infeasible [ 45 C.F.R. Section 164.504(e) (ii)(2)(i) ]. If CE elects destruction of the PHI, BA shall certify in writing to CE that such PHI has been destroyed.
BA agrees to indemnify and hold CE harmless from any loss, claims, or expense including reasonable attorney’s fees incurred by CE or as a result of BA’s breach of this Addendum.
CE makes no warranty or representation that compliance by BA with this Addendum, HIPAA, the HITECH Act, or the HIPAA Regulations will be adequate or satisfactory for BA’s own purposes. BA is solely responsible for all decisions made by BA regarding the safeguarding of PHI.
To the extent that CE determines that such examination is necessary to comply with CE’s legal obligations pursuant to HIPAA relating to certification of its security practices, CE or its authorized agents or contractors, may, at CE’s expense, examine BA’s facilities, systems, procedures and records as may be necessary for such agents or contractors to certify to CE the extent to which BA’s security safeguards comply with HIPAA, the HITECH Act, the HIPAA Regulations or this Addendum.
a. Amendment to Comply with Law. The parties acknowledge that state and federal laws relating to data security and privacy are rapidly evolving and that amendment of the Agreement or Addendum may be required to provide for procedures to ensure compliance with such developments. The parties specifically agree to take such action as is necessary to implement the standards and requirements of HIPAA, the HITECH Act, the Privacy Rule, the Security Rule and other applicable laws relating to the security or confidentiality of PHI. The parties understand and agree that CE must receive satisfactory written assurance from BA that BA will adequately safeguard all Protected Information. Upon the request of either party, the other party agrees to promptly enter into negotiations concerning the terms of an amendment to this Addendum embodying written assurances consistent with the standards and requirements of HIPAA, the HITECH Act, the Privacy Rule, the Security Rule or other applicable laws. CE may terminate the Agreement upon thirty (30) days written notice in the event (1) BA does not promptly enter into negotiations to amend the Agreement or Addendum when requested by CE pursuant to this Section or (ii) BA does not enter into an amendment to the Agreement or Addendum providing assurances regarding the safeguarding of PHI that CE, in its sole discretion, deems sufficient to satisfy the standards and requirements of applicable laws.
b. Amendment of Attachment A. Attachment A may be modified or amended by mutual agreement of the parties at any time without amendment of the Agreement or Addendum.
8. Assistance in Litigation or Administrative Proceedings
BA shall make itself and any subcontractors, employees or agents assisting BA in the performance of its obligations under the Agreement or Addendum, available to CE, at no cost to CE, to testify as witnesses, or otherwise, in the event of litigation or administrative proceedings being commenced against CE, its directors, officers or employees based upon a claimed violation of HIPAA, the HITECH Act, the Privacy Rule, the Security Rule, or other laws relating to security and privacy, except where BA or its subcontractor, employee or agent is a named adverse party.
9. No Third-Party Beneficiaries
Nothing express or implied in the Agreement or Addendum is intended to confer, nor shall anything herein confer; upon any person other than CE, BA and their respective successors or assigns, any rights, remedies, obligations or liabilities whatsoever.
10. Effect on Agreement
Except as specifically required to implement the purposes of this Addendum, or to the extent inconsistent with this Addendum, all other terms of the Agreement shall remain in force and effect.
The provisions of this Addendum shall prevail over any provisions in the Agreement that may conflict or appear inconsistent with any provision in this Addendum. This Addendum and the Agreement shall be interpreted as broadly as necessary to implement and comply with HIPAA, the HITECH Act, the Privacy Rule and the Security Rule. The parties agree that any ambiguity in this Addendum shall be resolved in favor of a meaning that complies and is consistent with HIPAA, the HITECH Act, the Privacy Rule and the Security Rule.
IN WITNESS WHEREOF, the parties hereto have duly executed this Addendum as of the Addendum Effective Date.