Emote Therapist Terms of Service, Contract, and HIPAA Business Associate Agreement

MASTER AGREEMENT

THIS AGREEMENT is made and entered into as of the day you complete your information and submit that you agree to this document. It is entered into between Emote, LLC (“Emote”), a limited liability company organized under Virginia law, with its principal office at 13015 Point Pleasant Drive, Fairfax, VA 22033 and you, the clinician, whose principal office is located at the address listed on your profile.

WHEREAS, Emote operates a platform that offers consumers the opportunity to purchase mental health counseling and services (“Services”), and from time to time the parties may contract with one another for Clinician to offer services through Emote’s platform, in exchange for which Emote will receive membership fees from Clinician. The specific charges and terms of each annual contract shall be set forth in an individual Scope of Work (each an “SOW”), executed from time to time by the parties and attached hereto. In connection with each SOW, Clinician will have entered into an agreement for services as described in this agreement and in the SOW (the “Contract”), with Emote, for the performance of the services described in this agreement and in the SOW.

NOW, THEREFORE, in consideration of the foregoing and of the mutual promises contained herein, the receipt and adequacy of which is hereby acknowledged, the parties hereby agree as follows:

Services

a) Emote will provide a platform that will offer consumers an opportunity to purchase Services from Clinician. Clinician agrees that Emote cannot guarantee income as a result of Clinician’s membership.

b) Clinician will be responsible for providing Services sold through Emote’s platform to the end consumer, within five (5) business days of said sale or at a time mutually agreeable to both clinician and to consumer.

Sales Procedure

a) Clinician will post only accurate representations regarding the price, quality, and outcomes of all services offered through Emote’s website.

b.) Clinician agrees that it will not use the protected intellectual property of any individual, organization, or company. Protected intellectual property shall include words, descriptions, pictures, images, or any other medium used to sell or advertise goods or services, particularly where there exists the possibility that said words, descriptions, pictures, images, or other medium are copywritten, trademarked, or otherwise subject to any form of intellectual property protections. Clinician will immediately remove or cause to be removed from Emote any words, descriptions, pictures, or images that violate this clause.

c) Under no circumstances will Clinician engage in the sale of any services that are prohibited by federal or state law. Additionally, Clinician agrees that Clinician will not engage in any activity, therapy, or other form of “treatment” that Clinician is not competent to perform, that would not be allowed under Clinician’s license, or under the state law of the state wherein Clinician practices.

d) Emote will receive a software subscription fee, calculated in a pay as you go fashion,  in exchange for use of the Emote platform. The subscription fee will be calculated as listed in an attached SOW, based on Clinician’s use of Emote. Rates will be specified on the annual SOW and will be in accordance with guidelines that Emote shall make known to the Clinician on an annual basis and that will be explicitly written into the applicable SOW.

e) Clinician agrees that Clinician has read, is familiar with, and agrees to be bound by the Emote Community Guidelines as of the signing of this contract by Clinician. Clinician further agrees that upon notification by Emote of an update to the Emote Community Guidelines that Clinician will review all of the changes as soon as practical.

f) Clinician agrees that Clinician has read, is familiar with, and agrees to be bound by Emote’s privacy policy as posted in Emote’s platform, as of the signing of this contract by Clinician.

Clinician further agrees that upon notification by Emote of an update to Emote’s privacy policy that Clinician will review all of the changes as soon as practical. Clinician understands that Clinician with have contact with the personally identifying information of persons that have made purchases through Emote’s platform. Clinician agrees that clinician will protect all personally identifiable information from disclosure. Clinician further agrees to dispose of all personally identifiable information once no longer needed for treatment, billing, or record keeping purposes.

Project Management. Emote may designate who will review the advertisements and claims of all Clinicians on and through Emote. Emote will inform Clinician of a decision to remove content from Emote’s platform including, but not limited to, services, treatments, education, pictures, videos, descriptions, and any advertisements. Clinician agrees that any decisions made by Emote, its personnel, or any contractor or agent acting on Emote’s behalf regarding the removal of content from Emote’s platform will be binding, enforceable, and final absent conclusive proof that the grounds for removal were mistaken.

License and Ownership

a) For purposes of this Agreement (i) “Technology” means works of authorship, materials, information and other intellectual property; (ii) “Emote Technology” means all Technology created prior to or independently of the selling of Services, or created by Emote or any employee or contractor thereto, as a tool for the use of Emote, plus any modifications or enhancements thereto and derivative works based thereon.

b) Emote & Clinician agree that Emote’s platform is proprietary in nature and is the sole and exclusive property of Emote. Clinician hereby disclaims any right to or license in Emote’s platform. Clinician’s disclaimer extends to any process, program, or system utilized by Emote. Additionally, Clinician hereby assigns to Emote any right or claim of property colorable under law in any proprietary intellectual property owned, possessed, or utilized by Emote. Clinician and its licensees retain all rights in and to all non-Emote Technology. The foregoing assignment and license grants do not apply to any Technology (including any modifications or enhancements thereto or derivative works based thereon) that is subject to a separate license agreement between Emote or Clinician and a third party.

Confidentiality.

a) To the extent that, in connection with this Agreement, either party (each, the “receiving party”) comes into possession of any trade secrets or other proprietary or confidential information of the other party or third parties to which it has an obligation of confidentiality (the “disclosing party”), it will not disclose such information to any third party without the disclosing party’s consent. In addition, the disclosing party hereby consents to the receiving party disclosing such information (i) to contractors providing administrative, infrastructure, and other support services to the receiving party and subcontractors providing services in connection with the routine business functions or the applicable SOW, in each case, whether located within or outside of the United States, provided that such contractors and subcontractors have agreed to be bound by confidentiality obligations similar to those in this Section 6, (ii) as may be required by law or regulation, or to respond to government inquiries, or in accordance with applicable professional standards or rules, or in connection with litigation pertaining to the provision of Services, an

SOW, or this Agreement, or (iii) to the extent such information (A) shall have otherwise become publicly available (including, without limitation, any information filed with any governmental agency and available to the public) other than as the result of a disclosure in breach hereof, (B) becomes available to the receiving party on a nonconfidential basis from a source other than the disclosing party which the receiving party believes is not prohibited from disclosing such information to the receiving party by obligation to the disclosing party, (C) is known by the receiving party prior to its receipt from the disclosing party without any obligation of confidentiality with respect thereto, or (D) is developed by the receiving party independent of any disclosures of such information made by the disclosing party to the receiving party. The receiving party shall carry out its obligations under this Section 6 using at least the same degree of care as it employs in maintaining in confidence its own proprietary and confidential information, but in no event less than a reasonable degree of care.

b) In addition, Clinician shall comply with each provision in this Agreement that relates to confidential or proprietary information.

Termination

a) This Agreement will start on the date written above, and will continue until terminated. Either party may terminate this agreement at any time by giving thirty (30) days written notice to the other party. Emote may terminate this contract immediately and at any time for cause. For significant breaches of this agreement, wherein EMOTE is willing to continue the business relationship with Clinician, Emote shall have the option to give written notice to Clinician regarding the breach. After receiving the written notice, Clinician shall have three (3) business days in which to cure the breach. Should Clinician fail to cure the breach, EMOTE may terminate this contract by giving written notice. If terminated, this Agreement shall continue to apply to all SOWs that are in existence at the time of such termination and under which the services contemplated in this agreement have not been completed. EMOTE may terminate an SOW for convenience at any time by giving thirty (30) days written notice to Clinician.

b) Either party may terminate an SOW for a material breach of this Agreement (as it relates to such SOW) or such SOW by the other party by giving the breaching party thirty (30) days written notice; provided that the breaching party shall have the right to cure the breach within the notice period. To the extent either party terminates any individual SOW pursuant to this section, this Agreement shall continue to apply to all SOWs that have not been terminated. c) Either party may terminate an SOW or performance of any part thereof upon written notice to the other party if such terminating party reasonably determines that the performance of any part herein would be in conflict with law or professional rules.

d) Upon any termination of an SOW, Clinician will provide any transition assistance that may be reasonably requested by Emote during the notice period. The obligations of each party which have been incurred prior to the effective date of termination shall continue in full force and effect notwithstanding the expiration or termination of the SOW. In the event of termination, Emote shall pay Clinician all monies due as of the termination date.

Indemnity

a) Clinician (the “Indemnitor”) shall indemnify and hold Emote, its respective subsidiaries, and their respective personnel (collectively the “Indemnitee”), harmless from any and all Claims (as defined in Section 9) arising out of or relating to any claim that any intellectual property (“Mark”) of Indemnitor provided by Indemnitor to Indemnitee in connection with the services set forth in either this agreement or an SOW or any portion thereof infringes upon or violates any patent, copyright, trade secret, or other intellectual property right of any third party, except to the extent that such infringement or unauthorized use arises from or could have been avoided but for: (1) the modification of a Mark by the Indemnitee or use thereof in a manner not contemplated by this Agreement, (2) the failure of the Indemnitee to use any corrections or modifications made available by the Indemnitor, or (3) information, materials, instructions or specifications provided by or on behalf of the Indemnitee. If a claim of infringement is made with respect to any Mark, or any portion thereof, the Indemnitor, at its option and expense, shall have the right to (x) procure for the Indemnitee the continued use or sale of such Mark, (y) replace such Mark with non-infringing items, or (z) modify such Mark or Marks so they become non-infringing; provided that, if (y) or (z) is the option chosen, the replacement or modified Marks are capable of performing substantially the same function. The foregoing provisions of this paragraph constitute the sole and exclusive remedy of the Indemnitee, and the sole and exclusive obligation of the Indemnitor, relating to a claim that any Mark or any portion thereof infringes upon or violates any patent, copyright or other intellectual property right of a third party.

b) As a condition to the foregoing indemnity obligations, the Indemnitee shall provide the Indemnitor with prompt notice of any claim for which indemnification shall be sought hereunder and shall cooperate in all reasonable respects with the Indemnitor in connection with any such claim. The Indemnitor shall be entitled to control the handling of any such claim and to defend or settle any such claim, in its sole discretion, with counsel of its own choosing.

Limitation on Damages and Actions.

a) Each party agrees that the other party, its affiliates, agents and subcontractors, shall not be liable for any actions, damages, claims, liabilities, costs, expenses, or losses (“Claims”) in any way arising out of or relating to the Services performed under an SOW hereunder for an aggregate amount in excess of the fees paid and payable under the applicable SOW. For purposes of this Section, “payable” means monies retained by Emote that are due to Clinician at the next scheduled payment date, minus Emote’s usage fees and any other deductions agreed upon under either this agreement or an applicable SOW. Each party further agrees that the respective partners, principals, members or other personnel of the other party shall not be personally liable in any amount and to any extent for Claims in any way arising out of or relating to the Services performed under an SOW hereunder. In no event shall either party, its affiliates, agents or subcontractors, or any of their partners, principals, members or other personnel be liable for consequential, special, indirect, incidental, punitive or exemplary damages, costs, expenses, or losses (including, without limitation, lost profits and opportunity costs). The limitations set forth in this section shall not apply to actions, damages, claims, liabilities, costs, expenses or losses

(A) for which a party has an obligation to indemnify the other party hereunder; (B) any bodily injury, death or damage to real or tangible personal property, to the extent directly and proximately caused by the gross negligence or willful misconduct of that party or its personnel while engaged in the providing of services; provided, however, that if there is also fault on the part of the other party or any entity or individual indemnified hereunder or any entity or individual acting on the other party’s behalf, the foregoing indemnification shall be on a comparative fault basis; (C) resulting from a party’s breach of its confidentiality obligations hereunder, or (D) to the extent resulting from the recklessness, bad faith or willful misconduct of the other party, its subcontractors, or their respective personnel. Under no event shall Emote be liable for any claim or demand against the Clinician by any third party. In circumstances where all or any portion of the provisions of this Section 9(a) are judicially determined to be unavailable, the aggregate liability of each party, its subcontractors and their respective personnel for any Claim shall not exceed an amount which is proportional to the relative fault that their conduct bears to all other conduct giving rise to such Claim.

b) No action, regardless of form, arising under or relating to this Agreement, may be brought by either party more than one year after the cause of action has accrued, except that an action for non-payment of any Services proceeds due may be brought by Clinician not later than one year following the date of the last payment due hereunder.

Insurance Coverage. At Emote’s request and prior to commencement of work under any SOW, Clinician will forward to Emote a certificate of insurance verifying that Clinician maintains errors and omissions insurance coverage or professional liability insurance coverage, or commercial umbrella coverage in an amount that Emote deems sufficient to protect Emote from loss.

Non-Exclusivity. This Agreement shall not preclude or limit in any way (i) the right of Clinician to sell services in any other medium or forum as Clinician in its sole discretion deems appropriate, or (ii) the right of Clinician to develop for itself or for others services, materials, or processes that are competitive with those produced as a result of the Services provided hereunder. Clinician agrees that Clinician will not offer the same or similar Services in any other medium or forum at a lower price or with more favorable terms than Clinician offers through Emote. Clinician may not use Emote’s name for any marketing activity without prior written approval from Emote. Emote shall obtain Clinician’s consent prior to using the name of the Clinician or its personnel for any marketing activity.

Non-Solicitation. During the term of each SOW under this Agreement and for a period of one (1) year thereafter, neither party shall directly or indirectly employ, solicit or retain the services of the personnel of the other party, who are involved in the receipt or provision of the Services under such SOW, for its own benefit or the benefit of another. A party shall not be in breach of this section if those responsible for the solicitation, hiring or retention of the other party’s personnel were not aware of the prohibition contained in this section; however, personnel of both parties engaged in the provision of Services hereunder shall be presumed to know of the prohibition. In the event a party breaches this provision, the breaching party shall be liable to the aggrieved party for an amount equal to thirty percent (30%) of the annual base compensation of the relevant personnel in his/her new position. Although such payment shall be the aggrieved party’s exclusive means of monetary recovery from the breaching party for breach of this provision, such a breach shall be considered a material breach of this Agreement and the aggrieved party’s remedies of termination, injunction and damages shall be cumulative.

Arbitration Procedures. As a material part of the Agreement, Emote and the Clinician agree that this Dispute Resolution Provision sets forth the dispute resolution process and procedures applicable to the resolution of disputes (“Disputes”) and shall apply to the fullest extent of the law,whether in contract, statute, tort (such as negligence), or otherwise. All Disputes shall be settled by confidential and binding arbitration to be held in Fairfax County, Virginia. The arbitration shall be solely between the parties and shall be conducted in accordance with JAMS’ Comprehensive

Arbitration Rules and Procedures (effective March 26, 2007), except to the extent modified by this Dispute Resolution Provision (the “Rules”). By agreeing to submit all such disputes, claims and controversies to binding arbitration, Emote and the Clinician expressly waive any rights to have such matters heard or tried in court before a judge or jury or in another tribunal. The arbitration shall be conducted before a panel of three arbitrators who must be neutral and independent. Each of the Clinician and Emote shall designate one such arbitrator and the two party- designated arbitrators shall jointly select the third. No arbitrator may serve on the panel unless he or she has agreed in writing to enforce the terms of the engagement letter (including its appendices) to which this Dispute Resolution Provision is attached and to abide by the terms of this Dispute Resolution Provision. Except with respect to the interpretation and enforcement of these arbitration procedures (which shall be governed by the Federal Arbitration Act), the arbitrators shall apply the laws of the Commonwealth of Virginia (without giving effect to its choice of law principles) in connection with the Dispute. The arbitrators shall have no power to award punitive, exemplary or other damages not based on a party’s actual damages and the parties expressly waive their right to receive such damages. The arbitrators may render a summary disposition relative to all or some of the issues, provided that the responding party has had an adequate opportunity to respond to any such application for such disposition. No discovery shall be permitted in connection with the arbitration, except to the extent that it is expressly authorized by the arbitrators upon a showing of substantial need by the party seeking discovery. Unless the parties agree otherwise, the parties, the arbitrators and JAMS shall treat the proceedings, any related discovery and the decisions of the arbitrators, as confidential. The parties may disclose the existence, content, or results of the arbitration in accordance with the Rules, applicable professional standards, and regulatory requirements. To the extent possible, issues of confidentiality shall be raised with and resolved by the arbitrators. Before making any disclosure permitted by the Rules, a party shall give written notice to all other parties and afford such parties a reasonable opportunity to protect their interests. Further, judgment on the arbitrators’ award may be entered in any court having jurisdiction. Each party shall bear its own costs in the arbitration; however, the parties shall share the fees and expenses of the arbitrators and all arbitration case management fees equally.

Other Terms

a) Force Majeure. Neither party shall be liable for any delays or other non-performance resulting from circumstances or causes beyond its reasonable control, including, without limitation, acts or omissions or the failure to cooperate of the other party (including, without limitation, entities or individuals under its control, or their respective officers, directors, personnel and agents), acts or omissions or the failure to cooperate by any third party, fire, epidemic or other casualty, act of God, strike or labor dispute, war or other violence, or any law, order or requirement of any governmental agency or authority.

b) Independent Contractor. It is understood and agreed that Clinician is requesting to offer its Services by and through Emote. There is no employer/employee relationship between the parties. Clinician is a licensee of Emote’s services. Should a court of competent jurisdiction determine that Clinician is more than a licensee, then Clinician asserts and agrees that at most Clinician is an independent contractor that is fully subject to the terms and conditions of this agreement. As such, neither party is, nor will be considered to be, an agent or representative of the other. The personnel of one party will not be deemed to be personnel of the other party.

Neither party will act or represent itself, directly or by implication, as an agent of the other or in any manner assume or create any obligation on behalf of, or in the name of, the other. Emote shall not be responsible for the payment of worker’s compensation, disability benefits, unemployment insurance, and any other employee benefit, including, but not limited to, 401(k), medical, dental and life insurance, vacation, sick days and holiday, or for withholding income taxes and social security for any employee, agent, or contractor of Clinician. If, contrary to the intent of the parties, it is determined that an employment relationship exists between Clinician (including its employees, agents and contractors) and Emote, Clinician, for itself and on behalf of any and all individuals and entities under Clinician’s direct or indirect control, hereby irrevocably waives the right to participate in and earn or become entitled to any and all employee benefits of Emote.

c) Survival and Interpretation. All sections herein relating to payment, license and ownership, confidentiality, warranties, limitations of warranties, indemnification, limitations on damages and actions, non-exclusivity, non-solicitation, waiver and waiver of jury trial shall survive the termination of this Agreement. The provisions of Sections 9 and 13 shall apply to the fullest extent of the law, whether in contract, statute, tort (such as gross negligence) or otherwise, notwithstanding the failure of the essential purpose of any remedy.

d) Applicable Laws. Clinician will abide by all applicable laws, rules and regulations in connection with its advertising and selling of services by and through Emote.

e) Notices. Whenever under this Agreement one party is required or permitted to give notice to the other, such notice will be in writing and deemed given upon the earlier of delivery or five calendar days after such notice is mailed by registered or certified United States mail, return receipt requested, postage prepaid, and addressed to the addressee at the address stated in the applicable SOW. Either party may change its address for notice by giving the other party advance written notice of the new address in conformity with the foregoing and the date upon which such new address will become effective.

f) Assignment. Except as provided below, neither party may assign, transfer or delegate any of the rights or obligations (including interests or claims) relating to this Agreement or any SOW without the prior written consent of the other party. Clinician may, upon notice to Emote, subcontract or delegate its obligations and responsibilities hereunder to its affiliates; provided, however, that Clinician shall not be relieved of its obligations hereunder. Notwithstanding the foregoing, either party may assign this Agreement or any SOW, without the consent of the other party, to an entity that has acquired all or substantially all of the assigning party’s assets assuccessor to the assigning party’s business.

g) Waiver. No delay or omission by any party in enforcing any of its rights or remedies hereunder will impair such right or remedy or be deemed to be a waiver thereof. No waiver of any right or remedy hereunder with respect to any occurrence or event on one occasion will be deemed a waiver of such right or remedy with respect to such occurrence or event on any other occasion. No amendment or waiver will be valid unless in writing and signed by both parties.

h) Entire Agreement. This Agreement, including each SOW, and its Exhibits, constitutes the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes all other oral or written representations, understandings or agreements relating to the subject matter hereof.

i) Governing Law/Forum. This Agreement will be governed by, and construed in accordance with, the laws of the Commonwealth of Virginia, without giving effect to the choice of law principles thereof. Any party attempting to bring forth litigation in violation of Paragraph 13, supra, shall do so in the Courts of Fairfax County, Virginia, or the Federal District Courts for the District of Columbia.

j) Severability. If any provision of this Agreement is declared or found by a court of competent jurisdiction to be illegal, unenforceable, or void, then such provision will be null and void, but each other provision hereof not so affected will be enforced to the full extent permitted by applicable law.

By entering your name and address and license number and submitting this document you are thereby causing it to be executed and entered into.

 

SCOPE OF WORK CONTRACT

This contract shall automatically terminate one year from the date it is signed and shall serve as an amendment, clarification, and update to the existing Master Agreement (“MA”) currently existing between the parties. This agreement and the corresponding MA may be terminated upon 30 days written notice given by either party. Emote may terminate this contract immediately for cause. Cause shall include, but will not be limited to, any breach of the existing MA by Clinician.

For the term of this contract, Emote will charge Clinician a membership fee based on the number of users referred to Clinician by Emote, as outlined in the attached Appendix A. Emote will continue to collect all monies for services scheduled with Clinician. Emote will remit to Clinician all monies due and payable on a semi-daily basis. The amount due Clinician will be calculated by subtracting Emote’s fees and any monies necessary to recoup losses by Emote due to Clinician’s actions or lack thereof. This shall include, but not be limited to, the recovering of legal fees, collection fees, or penalties, fines, or judgments paid by Emote.

Clinician agrees that for all clients referred by Emote, Emote’s charges as outlined in Appendix A are both fair and reasonable. Clinician hereby accepts the charges as listed in Appendix A as full payment for services with the understanding that Emote will collect the charges on Clinician’s behalf and will remit all monies due to Clinician as described in Paragraph 2. Emote and Clinician further agree that Clinician may choose to use Emote as Clinician’s billing and collections platform by referring Clinician’s clients to Emote, as Clinician deems prudent. For all customers that Clinician refers to Emote, Clinician shall have the right to select the rates charged the client.

Annual Background Check:

Clinician acknowledges that prior to acceptance of this

SOW, a background check, as prescribed by Emote, may be completed.

Clinician’s acceptance of this document is an attestation that Clinician is properly licensed for the services being performed, and is in compliance with all laws, regulations, or other professional governance within Clinician’s state of practice. Clinician also agrees that this requirement shall include any law, rule, or other guidance/requirement put forth by any governmental, quasi-governmental, or private entity. Clinician agrees to provide Emote current copies of Clinician’s license upon request, and to immediately report any criminal or professional investigation related to, or that may impact, Clinician’s fitness to provide mental health services.

Notices:

Writing; Permitted Delivery Methods. Each party giving or making any notice, request, demand, or other communication required or permitted by this note shall give that notice in writing and use one of the following types of delivery, each of which is a writing for purposes of this note: personal delivery, mail (registered or certified mail, postage prepaid, return-receipt requested), nationally recognized overnight courier (fees prepaid), facsimile, or through email from and to addresses previously used to correspond with Emote.

Addresses. A party shall address notices under this section five (5) to a party at the following addresses:

If to Emote:

Emote, LLC.

13015 Point Pleasant Drive

Fairfax, VA 22033

Fax: (703) 222-1942w

If to Clinician: address in database at time notice is to be sent.

Effectiveness. A notice is effective only if the party giving notice complies with subsections (a) and (b).

APPENDIX A

Revenue and fees as of 1/1/2019 are as follows:

Clinician will receive $50 a week for text based therapy and clinician pays $15 per week as a license fee for fair market value of software provided and marketing services.

Clinician shall receive $40.00 per half session (approx 25 minutes) for Video sessions and pays Emote $10 as a license fee for fair market value of software provided and marketing services.

Clinician shall receive $75 for a full session (approx 50 minutes) for video session and pays Emote $19 as a license fee for fair market value of software provided and marketing services.

Clinician shall pay to Emote a License Fee based on the number of active paying clients that Clinician has on the Emote platform. All license fees shall be deducted from all fees due Clinician, prior to payment.

Clinicians money is only in Emote’s possession when an account to receive funds has not bee set up by the clinician-otherwise it is transferred directly to clinician from the payment processor. Emote will initiate the electronic transfer of all monies due to Clinician within seven days of receiving such payments. Emote will make every effort to initiate all electronic transfers within two days of receiving such funding.

BUSINESS ASSOCIATE AGREEMENT

This Privacy Agreement (“Agreement”), is effective upon signing this Agreement and is entered into by and between Clinician using the Emote platform and indicating agreement to this document and EMOTE, LLC (the “Business Associate”).

1. Term. This Agreement shall remain in effect for the duration of this Agreement and shall apply to all of the Services and/or Supplies delivered by the Business Associate pursuant to this Agreement.

2. HIPAA Assurances. In the event Business Associate creates, receives, maintains, or otherwise is exposed to personally identifiable or aggregate patient or other medical information defined as Protected Health Information (“PHI”) in the Health Insurance Portability and Accountability Act of 1996 or its relevant regulations (“HIPAA”) and otherwise meets the definition of Business Associate as defined in the HIPAA Privacy Standards (45 CFR Parts 160 and 164), Business Associate shall:

(a) Recognize that HITECH (the Health Information Technology for Economic and Clinical Health Act of 2009) and the regulations thereunder (including 45 C.F.R. Sections 164.308, 164.310, 164.312, and 164.316), apply to a business associate of a covered entity in the same manner that such sections apply to the covered entity; (b) Not use or further disclose the PHI, except as permitted by law;

(c) Not use or further disclose the PHI in a manner that had Clinician had done so, would violate the requirements of HIPAA;

(d) Use appropriate safeguards (including implementing administrative, physical, and technical safeguards for electronic PHI) that reasonably and appropriately  protect the confidentiality, integrity, and availability of and to prevent the use or disclosure of the PHI that it creates, maintains, receives, or transmits on behalf of the Clinician other than as provided for by this Agreement;

(e) Comply with each applicable requirements of 45 C.F.R. Part 162 if the Business Associate conducts Standard Transactions for or on behalf of the Covered Entity;

(f) Report promptly to Clinician any security incident or other use or disclosure of PHI not provided for by this Agreement of which Business Associate becomes aware;

(g) Ensure that any subcontractors or agents who receive or are exposed to PHI (whether in electronic or other format) are explained the Business Associate obligations under this paragraph and agree to the same restrictions and conditions; (h) Make available PHI in accordance with the individual’s rights as required under the HIPAA regulations; (i) Account for PHI disclosures for up to the past six (6) years as requested by Covered Entity, which shall include: (i) dates of disclosure, (ii) names of the entities or persons who received the PHI, (iii) a brief description of the PHI disclosed, and (iv) a brief statement of the purpose and basis of such disclosure; (j) Make its internal practices, books, and records that relate to the use and disclosure of PHI available to the U.S. Secretary of Health and Human Services for purposes of determining Customer’s compliance with HIPAA; and

(k) Incorporate any amendments or corrections to PHI when notified by Customer or enter into a Business Associate Agreement or other necessary Agreements to comply with HIPAA.

3. Termination Upon Breach of Provisions. Notwithstanding any other provision of this Agreement, Covered Entity may immediately terminate this Agreement if it determines that Business Associate breaches any term in this Agreement. Alternatively, Covered Entity may give written notice to Business Associate in the event of a breach and give Business Associate five (5) business days to cure such breach. Covered Entity shall also have the option to immediately stop all further disclosures of PHI to Business Associate if Covered Entity reasonably determines that Business Associate has breached its obligations under this Agreement. In the event that termination of this Agreement and the Agreement is not feasible, Business Associate hereby acknowledges that the Covered Entity shall be required to report the breach to the Secretary of the U.S. Department of Health and Human Services, notwithstanding any other provision of this Agreement or Agreement to the contrary.

4. Return or Destruction of Protected Health Information upon Termination. Upon the termination of this Agreement, unless otherwise directed by Covered Entity, Business Associate shall either return or destroy all PHI received from the Covered Entity or created or received by Business Associate on behalf of the Covered Entity in which Business Associate maintains in any form. Business Associate shall not retain any copies of such PHI. Notwithstanding the foregoing, in the event that Business Associate determines that returning or destroying the Protected Health Information is infeasible upon termination of this Agreement, Business Associate shall provide to Covered Entity notification of the condition that makes return or destruction infeasible. To the extent that it is not feasible for Business Associate to return or destroy such PHI, the terms and provisions of this Agreement shall survive such termination or expiration and such PHI shall be used or disclosed solely as permitted by law for so long as Business Associate maintains such Protected Health Information.

5. No Third Party Beneficiaries. The parties agree that the terms of this Agreement shall apply only to themselves and are not for the benefit of any third party beneficiaries.

6. De-Identified Data. Notwithstanding the provisions of this Agreement, Business Associate and its subcontractors may disclose non-personally identifiable information provided that the disclosed information does not include a key or other mechanism that would enable the information to be identified.

7. Amendment. Business Associate and Covered Entity agree to amend this Agreement to the extent necessary to allow either party to comply with the Privacy Standards, the Standards for Electronic Transactions, the Security Standards, or other relevant state or federal laws or regulations created or amended to protect the privacy of patient information. All such amendments shall be made in a writing signed by both parties.

8. Interpretation. Any ambiguity in this Agreement shall be resolved in favor of a meaning that permits Covered Entity to comply with the then most current version of HIPAA and the HIPAA privacy regulations.

9. Definitions. Capitalized terms used in this Agreement shall have the meanings assigned to them as outlined in HIPAA and its related regulations.

10. Survival. The obligations imposed by this Agreement shall survive any expiration or termination of this Agreement.