Terms of Service

This Master Service Agreement, any applicable Order Forms, Exhibits, and/or Addenda hereto (collectively, the “Agreement”) a legal agreement between you (“Client”) and Fullsteam Software Holdings LLC DBA EZClaim(“Company”) to purchase access to the Company Platforms (defined below) and the related subscription services and other services that Company may provide to Client in an Order Form (defined below) (collectively, the “Services”). This Agreement governs the use of the Services Company provides to you. Capitalized terms used but not defined herein shall have the meanings ascribed to them in any applicable Order Form.

“Order Form” means a separate ordering agreement (including but not limited to a statement of work, proposal, or change order), or page on the Site pursuant to which Client purchases Services.

“Company Platforms” means collectively and individually, https://ezclaim.com/ and any of their subdomains (collectively, the “Site”) and any websites, platforms, exchanges, successor platforms and exchanges, software, hardware, portals, applications, and Application Programming Interfaces (“API”s), programs, components, functions, screen designs, reporting data, and report formats owned or operated by Company and all updates, upgrades, and other derivative works, releases, fixes, patches, etc. related to the software that Company develops, deploys, or makes available to Client during the Term of this Agreement, as they may be modified, relocated and/or redirected from time to time, to receive, or review data and results of the Services.

BY ACCESSING OR USING THE SERVICES OR ENTERING INTO AN ORDER FORM HEREUNDER, YOU REPRESENT THAT YOU ARE AUTHORIZED TO ACCEPT THIS AGREEMENT ON CLIENT’S BEHALF, AND YOU ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT AND THE TERMS AND CONDITIONS OF COMPANY’S PRIVACY POLICY. IF YOU DO NOT ACCEPT ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT OR ARE NOT AUTHORIZED TO ACCEPT THIS AGREEMENT ON CLIENT’S BEHALF, THEN YOU ARE NOT AUTHORIZED TO AND ARE PROHIBITED FROM ACCESSING THE SERVICES. THE SERVICES ARE OFFERED AND AVAILABLE TO USERS WHO ARE EIGHTEEN (18) YEARS OF AGE OR OLDER. BY USING THE SERVICES, YOU REPRESENT AND WARRANT THAT YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH COMPANY AND MEET ALL OF THE FOREGOING ELIGIBILITY REQUIREMENTS. IF YOU DO NOT MEET ALL OF THESE REQUIREMENTS, YOU MUST NOT ACCESS OR USE THE SERVICES.

In the event there is any conflict between the terms and conditions in this Master Service Agreement and the terms and conditions in any applicable Order Form, the terms of the Order Form shall prevail.

The “Effective Date” of this Agreement is the date which is the earlier of (a) Client’s initial access to the Services through any online provisioning, registration, or order process, or (b) the effective date of the first Order Form. This Agreement governs Client’s initial purchase of Services on the Effective Date as well as any future purchases made by Client that reference this Agreement.

1. SERVICES AND TERMS.
   1. Grant of Access. Subject to the terms and conditions of this Agreement, the Company grants to Client a limited, non-exclusive, revocable, non-transferable, and non-sublicensable right for Client’s authorized employees, agents, representatives, consultants, and contractors (“Authorized Users” or “User”) to access and use the Services described in an applicable Order Form during the Term of the Order Form for Client’s internal business purposes only in accordance with the Documentation (as defined below) and, if the Client is a franchisor and Client is specifically permitted in the applicable Order Form, to sub-license the Services to its franchisees and their respective employees, contractors, agents, and affiliates (the “Franchisees”), for the same business and no other purpose whatsoever.  The Services may allow Client to designate different types of Authorized Users, which may have different pricing, functionality, and use restrictions, as described on the Site, in the Documentation, or in the applicable Order Form. Each Authorized User must keep its login credentials confidential and not share them with anyone else. Client is responsible for its Authorized Users’ compliance with this Agreement and actions taken through their accounts. This Agreement does not permit access to the Services by persons who are not Authorized Users.
   2. Reservation of Rights. Access to the Services is provided on a limited term and Services basis. All rights not specifically granted to Client hereunder are reserved by Company. Nothing herein shall prevent the Company from promoting, providing, licensing, sub-licensing or subcontracting the Services or providing the Services to other parties. Client shall promptly notify Company of any determination, discovery, or notification that any person or entity is or may be misusing or infringing the Services, including without limitation if it becomes aware of any compromise of its Authorized Users’ login credentials.
   3. Professional Service Deliverables. All work product, customizations, improvements, and/or enhancements to the Services performed by Company for Client pursuant to this Agreement or as identified on any separate Order Form executed by the parties (collectively, “Professional Service Deliverables”), shall be owned exclusively by Company, unless otherwise provided in the corresponding Order Form. If, by operation of law or otherwise, any Professional Service Deliverables are not owned exclusively by Company immediately upon creation thereof, Client agrees to assign, and hereby irrevocably assigns, to the Company exclusive ownership of such Professional Service Deliverables and expressly disclaims any ownership rights thereto. Client will cooperate with the Company to confirm and/or execute such assignments and Company’s ownership of Professional Service Deliverables.
   4. Feedback. If Client provides the Company with feedback or suggestions regarding the Services (“Feedback”), Company may use Feedback without restriction or obligation. In addition, Client hereby irrevocably assigns ownership of any and all Feedback to Company and will cooperate with Company to confirm and/or execute such assignments and Company ownership of Feedback.
   5. Anonymized Data. As between Client and Company, Company owns all rights, title, and interest in and to information which does not relate to an identified or identifiable natural person, or personal information rendered anonymous in such a manner that the natural person is not or no longer is identifiable (“Anonymized Data”).  Accordingly, Company may, during the Term and thereafter, use, display, transmit, modify and prepare derivative works of Anonymized Data in any media for any lawful purpose, including maintaining and improving the Services.
   6. Third-Party Providers. Client’s use of any platform, add-on, service, code (including open source) or product not provided by Company that Client chooses to integrate or enable for use with the Services (“Third-Party Provider”) shall be subject to the terms and conditions of Client’s agreement with such third party, and Client is solely responsible for its compliance with such terms and conditions. Client acknowledges that Company does not control, is not responsible for, and will not be liable in any way for Client’s use of any Third-Party Provider or any damage or loss resulting from Client’s access to, use of, or interaction with, any Third-Party Providers. Client further acknowledges that any Client data loss, downtime or periodic unavailability of the Services due to Third-Party Providers’ system maintenance, upgrades, or any other reason is outside of Company’s control. The foregoing does not exclude or limit Client’s right to pursue any remedies directly against a Third-Party Provider.
   7. Documentation. Subject to the terms and conditions of this Agreement, Company grants to Client a limited, non-exclusive, non-transferable, revocable, and non-sublicensable right and license to use and make copies of the usage guidelines and standard technical documentation for the Services as may be provided or made available online or in writing by the Company (“Documentation”). Documentation is for Client’s internal use only, for archival purposes, and for training and education of Authorized Users, provided that all proprietary notices of the Company and its licensors, if any, are reproduced and retained. Company reserves the right to modify the Documentation in Company’s sole determination without prior notice to Client.
2. PROHIBITIONS. Use of and access to the Services is permitted only by Client and its Authorized Users. Under no circumstances may Client or any Authorized User modify, decompile, reverse compile, disassemble, reverse engineer, decrypt, or otherwise seek to recreate the source code of the Services, modify or adapt the Services in any way, use the Services to create a derivative work, or grant any other person or entity the right or access to do so, without the Company’s advance written consent. Except as expressly authorized by this Agreement, and without limiting the foregoing, Client and Authorized Users represent and warrant that they will not (a) modify, copy, duplicate, reproduce, unbundle, license, sublicense, sell, assign, transfer, display, distribute, lend, rent, lease, sublease, or make available the Services or any portion thereof to any third party; (b) provide, transmit, disclose, divulge, or make available to, or permit use of the Services by, any third party or entity or machine; (c) use the Services in a service bureau, out-sourcing or other arrangement to process or administer data on behalf of any third party; (d) publish, post, upload, or otherwise transmit any unlawful, false, offensive, defamatory, or infringing data or any data that contains any viruses, Trojan horses, worms, time bombs, corrupted files or other computer programming routines that damage, detrimentally interfere with, surreptitiously intercept, or expropriate any systems, data, personal information, or property of another; (e) use or knowingly permit the use of any security testing tools in order to prove, scan, or attempt to penetrate or ascertain the security of Company or the Services without the prior written consent of Company; (f) attempt to gain any unauthorized access to the Services or Company customer data or attempt any unauthorized alteration or modification thereof; (g) use or launch, or knowingly permit the use or launch of, any automated system, including, without limitation, “robots,” “spiders,” or “offline readers,” that access the Services; or (h) use the Services or the information contained therein in violation of any applicable law or regulation.
3. SUSPENSION. Company may, at its sole discretion, suspend Client’s and/or  Authorized Users’ use of the  Services (in whole or in part) if Company determines that (a) Client or Authorized Users breaches any terms of this Agreement including the AUP or applicable Order Form, (b) Client’s account is thirty (30) days or more overdue for payment after being notified, or (c) Client’s or Authorized Users’ use of the Services risks harm to other customers of Company or the security, availability, or integrity of the Services.
4. CLIENT DATA.
   1. Client Data. Use of the Services may involve the Company’s receipt, processing, and storage of data, information, or material input by Client, Authorized Users, and Client’s end user customers who use the Services (“End Users”) (collectively, “Client Data”). Client affirms, represents, and warrants that Client owns or has the necessary licenses, rights, consents, and permissions to collect, use, and authorize Company to use all Client Data in the manner contemplated hereunder and to transfer to and process such Client Data. Client further represents and warrants that Company’s use of Client Data does and will not violate or infringe any applicable law, any third-party rights, or any terms or privacy policies that apply to the Client Data.
   2. License to Client Data. Client hereby grants the Company the worldwide, non-exclusive, right to use, copy, store, transmit, display, modify and create derivative works of Client Data, as necessary to provide the Services under this Agreement.
   3. Accuracy of Client Data. Client is solely responsible for the accuracy, content, currency, completeness, and delivery of the Client Data provided by Client, Authorized Users, and Client’s End Users.
   4. Return of Client Data. Upon termination or expiration of this Agreement, or at Client’s request, Company shall provide access to all Client Data in a commonly used machine-readable format or such other format as agreed by Client and Company. Company shall provide access to the Client Data for no more than thirty (30) days after the termination or expiration of the Agreement. After this thirty (30) day period, Company may delete Client Data in accordance with its standard schedule and procedures.
5. PAYMENT.
   1. Fees and Expenses. Client’s use of the Services is subject to prompt payment of all fees and other amounts, including without limitation, expenses (“Fees”) as described in each applicable Order Form. Any payments made via check may be subject to a $25 processing fee. Company may adjust Fees at any time with thirty (30) days’ notice. Unless the Order Form provides otherwise, Company will send Client an invoice for all Fees owed on a monthly basis, and all Fees not subject to a good faith dispute are due within thirty (30) days of the invoice date. To the extent that Client disputes any invoice, Client must provide Company notice of such dispute in writing within ten (10) business days of the invoice date, or Client shall waive any claim with respect to such invoice. Late payments are subject to a service charge of 1.5% per month (18% per annum), or the maximum amount allowed by law, whichever is more. All Fees are nonrefundable and non-cancellable, except as expressly provided in this Agreement, and are exclusive of taxes­­. In the event of nonpayment or any shortfall in Fees paid, Client authorizes Company and its Affiliates (defined below) to increase fees, dues, assessments, and/or debit any of Client’s accounts with Company or Company’s Affiliates, including those accounts associated with a payment processing agreement between Client and Affiliate. As used in this Section, “Affiliate” of a party means any corporation or other entity that such party directly or indirectly controls, is controlled by, or is under common control with. In this context, a party “controls” a corporation or other entity if it or any combination of it or any combination of it and/or its Affiliates owns more than fifty percent (50%) of the voting rights for (i) the board of directors, or (ii) other mechanism of control for such corporation or other entity.
   2. Taxes. Client is responsible for any sales, use, goods and services taxes (GST), harmonized sales taxes (HST), value-added, withholding or similar taxes or levies that apply to any Order Form, whether domestic or foreign (“Taxes”), other than Company’s income tax. If Company is legally obligated to pay or collect Taxes for which Client is responsible under this Agreement, the appropriate amount will be computed based on Client’s address listed in the Order Form, unless Client provides Company with a valid tax exemption certificate authorized by the appropriate taxing authority. Fees listed on or invoiced pursuant to an Order Form are exclusive of Taxes.
6. CLIENT OBLIGATIONS.
   1. Client Contact. Client will cooperate with Company in all matters relating to the Services and appoint a primary contact who will have the authority to act on behalf of Client for matters pertaining to this Agreement. Client will provide access to Client’s premises, or access to Client Data, reasonably needed for Company to perform the Services. If Client fails to do so, Company’s obligation to provide the Services will be excused until access is provided, and the parties agree on an updated timeline.
   2. Client Requirements. Client shall be responsible for providing and maintaining all necessary hardware, software, electrical and other physical requirements for Client’s use of the Services, including, without limitation, telecommunications and internet access connections and links, web browsers or other equipment, programs and services required to access and use the Services.
   3. Accessibility. As it relates to Client’s use of the Services, Client is solely responsible for compliance with all applicable accessibility laws, rules, and regulations, including, but not limited to, Title III of the Americans with Disabilities Act (“ADA”), and (if applicable) New York’s state and city level Human Rights Act and California’s Unruh Civil Rights Act.
   4. Acceptable Use Policy. Client is solely responsible for the content of any postings, communications, data, or transmissions using the Services, or any other use of the Services by Client or by any person or entity Client permits to access the Services. To the extent the Services allows uploading or posting of content or data by Client, Authorized Users, or End Users, Client will ensure that any content or data posted by or on behalf of Client, Authorized Users, or End Users is not inappropriate, illegal, obscene, threatening, libelous, discriminatory, hateful, or in violation of any third-party rights. If and to the extent the Services includes, integrates or links to any third party content, data or software, including without limitation any open source services (collectively, “Third Party Content”), Client acknowledges and agrees that (a) Company is not responsible for any Third Party Content and it is provided as is; and (b) any Third Party Content may be subject to additional terms and conditions (including applicable terms of use, privacy policies, end user license terms, etc., for which Client shall be responsible for agreeing to and complying with. Client represents and warrants that it will: (a) not use the Services in a manner that is prohibited by any law or regulation, or to facilitate the violation of any law or regulation; (b) not violate or tamper with the security of any Company computer equipment or program. If Company has reasonable grounds to believe that Client is utilizing the Services for any illegal or disruptive purpose, Company may suspend the Services immediately with or without notice to Client. Company may terminate the Agreement for breach of this Agreement if Client fails to adhere to the foregoing acceptable use standards. Client shall defend, indemnify and hold harmless Company from and against all liabilities and costs (including reasonable attorneys’ fees) arising from any and all third-party claims based upon the content of any such communications.
   5. Calls and Messaging. If the Services include email, calling, and/or text messaging features which enable Client to text third parties via the Services, Client is solely responsible for ensuring that the email, calling and/or text message feature(s) of the Services are utilized in a manner that complies with all applicable local, state, and federal laws, rules and regulations governing the sending of emails, calls, and/or text messages. This includes, but is not limited to, compliance with applicable email and telemarketing laws such as the CAN-SPAM Act and Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227, the EU ePrivacy Regulation, and comparable state laws. Client also represents and warrants that each third party to whom Client calls or texts has specifically granted Client permission to send such messaging; and that opt-out options are provided to such third parties pursuant to applicable law, rule, or regulation. Client is solely responsible for the content of any messaging by Client via the Services to third parties, and under no circumstances shall Company be identified by Client as the sender of such messaging. Client acknowledges it is responsible for obtaining any and all permissions required to use the Services’ calls, text messaging, or email features.
   6. Payment Processing. Unless otherwise stated in an applicable Order Form, Client must be enrolled in and processing payments through Company’s integrated payments processing platform within sixty (60) days of the Effective Date of this Agreement. If Client does not process payments through Company’s integrated payment solution within the required timeframe, Company, in its sole discretion, may delay or remove access to the Services, restrict certain Services product features, increase Fees and/or charge a non-integrated payment processing fee unless Company determines that Client qualifies for a temporary or ongoing exemption (in whole or in part). Client acknowledges that Company may delay access or restrict access to certain product features or the Services altogether for non-compliance within the required timeframe. Company reserves the right to apply non-integration payment processing fees in its sole discretion to Client or Franchisee, and to apply, modify, increase, decrease the non-integration payment processing fee at any time.
7. SECURITY AND PRIVACY; DATA PROCESSING. Company shall use reasonable and appropriate administrative, physical, and technical security programs and procedures designed to protect and secure the Services and Client Data. Client agrees to use reasonable efforts to prevent unauthorized persons from having access to the Services or any equipment providing the Services. Company and Client agree to notify the other party promptly upon becoming aware of any unauthorized access or use of the Services or Client Data by any third party. Client Data may be stored and processed in the United States or any other country in which Company or its service providers maintain facilities. If you are located in the European Union or other regions with laws governing data collection and use that may differ from U.S. law, please note that we may transfer information, including personal information, to a country and jurisdiction that does not have the same data protection laws as your jurisdiction, and you consent to the transfer, use, and disclosure of Client Data to the U.S. or any other country in which Company, Company’s Affiliates, or its service providers maintain facilities
8. TERM AND TERMINATION.
   1. Term. This Agreement starts on the Effective Date and continues until expiration or termination of all applicable Order Forms or until terminated as authorized in this Agreement, whichever occurs first (the “Term”).
   2. Termination. Either party may terminate this Agreement (including all Order Forms) if the other party (a) fails to cure a material breach of this Agreement (including a failure to pay Fees) within thirty (30) days after receipt of written notice of such breach by the other party, (b) ceases operation without a successor, or (c) seeks protection under a bankruptcy, receivership, trust deed, creditors’ arrangement, composition or comparable proceeding, or if such a proceeding is instituted against that party and not dismissed within sixty (60) days.
   3. Early Termination. If Client terminates the Agreement prior to the expiration of the applicable Order Form, or Company terminates for material breach, then Client shall forfeit all pre-paid amounts for Fees, and for those arrangements in which the Fees are not paid in advance, Client shall pay Company an amount equal to the monthly Fee multiplied by the number of months remaining in the Term.
   4. Effect of Termination. Upon termination or expiration of this Agreement or Order Forms for any reason, Client’s access to the Services will cease, other than limited use of the Services to export Client Data. Client will immediately return any Documentation in its possession to Company. Upon termination or expiration of this Agreement, the Client will return or destroy all of Company’s Confidential Information within its possession, custody, or control and will certify such destruction to Company upon request. Client Data and other Confidential Information may be retained subject to the receiving party’s retention practices until such information is scheduled to be deleted in accordance with the receiving party’s policies and procedures, but will remain subject to this Agreement’s confidentiality restrictions until deleted.
   5. Survival. Any provision of this Agreement which contemplates performance or observance subsequent to its termination or expiration, either explicitly or by its nature, shall continue in full force and effect.
9. LIMITED WARRANTY AND DISCLAIMER.
   1. Limited Warranty. Client and Company warrant that each party has the corporate power and authority to enter into and carry out the terms of the Agreement. Company further warrants to Client that: (a) the Services will perform materially as described in the Documentation; (b) Company will perform any Services in a professional and workmanlike manner; and (c) Company will use industry-standard measures designed to ensure that the Services (excluding Client Data) does not contain viruses, malware or similar harmful code.
   2. Warranty Remedy. If Company breaches this Section and Client makes a reasonably detailed warranty claim within thirty (30) days of discovering the issue, then Company will use reasonable efforts to correct the non-conformity. If Company determines such remedy to be impracticable, either party may terminate the affected Order Form as it relates to the non-conforming Services. Company will then refund Client any pre-paid, unused amounts for Fees for the terminated portion of the Services. These procedures are Client’s exclusive remedy and Company’s entire liability for breach of this Section. These warranties do not apply to (i) issues caused by misuse or unauthorized modifications by Client or its authorized users, or (ii) issues in or caused by Third-Party Providers or other third-party systems.
   3. Warranty Disclaimer. EXCEPT AS STATED AND EXPRESSLY PROVIDED IN THE WARRANTY SECTION ABOVE, THE SERVICES, THE DOCUMENTATION, AND ANY PROFESSIONAL SERVICES DELIVERABLES PROVIDED BY COMPANY UNDER THIS AGREEMENT ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. TO THE FULLEST EXTENT ALLOWED UNDER APPLICABLE LAW, COMPANY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, LEGAL, OR OTHERWISE, WITH RESPECT TO THE SERVICES, THE DOCUMENTATION AND ANY PROFESSIONAL SERVICES DELIVERABLES, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, QUALITY, DURABILITY, TITLE, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, TITLE, COMPLETENESS, ACCURACY, OR ARISING FROM A COURSE OF DEALING, USAGE, OR  TRADE PRACTICE. COMPANY EXPRESLY DISCLAIMS THAT CLIENT’S USE OF THE SERVICES, OR PROFESSIONAL SERVICES DELIVERABLES WILL BE UNINTERRUPTED OR ERROR-FREE, WILL MEET CLIENT’S PARTICULAR REQUIREMENTS, THAT DEFECTS IN THE SERVICES, IF ANY, WILL BE CORRECTED; OR THAT RESULTS WILL BE TIMELY, ACCURATE, ADEQUATE OR COMPLETE OR THAT IT WILL MAINTAIN CLIENT DATA WITHOUT LOSS. COMPANY DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES ABOUT THE SECURITY AND PROTECTION OF CLIENT DATA NOR GUARANTEE DATA AVAILABILITY.  CLIENT BEARS THE SOLE RESPONSIBILITY AND LIABILITY FOR MAINTAINING BACKUP AND ARCHIVE COPIES OF CLIENT DATA. COMPANY DOES NOT WARRANT OR REPRESENT THAT USE OF THE SERVICES WILL RESULT IN COMPLIANCE WITH ANY APPLICABLE LAWS OR REGULATIONS, AND CLIENT UNDERSTANDS THAT IT IS SOLELY RESPONSIBLE FOR ENSURING COMPLIANCE WITH ANY AND ALL APPLICABLE LAWS AND REGULATIONS. COMPANY IS NOT LIABLE FOR DELAYS, FAILURES OR PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE COMPANY’S CONTROL, INCLUDING THE FAILURE TO PROMPTLY IMPLEMENT THE LATEST RELEASE OF THE SERVICES BY OR AT THE DIRECTION OF CLIENT. CLIENT MAY HAVE OTHER STATUTORY RIGHTS, BUT ANY STATUTORILY REQUIRED WARRANTIES WILL BE LIMITED TO THE SHORTEST LEGALLY PERMITTED PERIOD. CLIENT ALONE IS RESPONSIBLE FOR ANY THIRD-PARTY CONTENT, AND COMMUNICATIONS, MESSAGES, OR OTHER CONTENT THAT ITS AUTHORIZED USERS’ POST, UPLOAD, SUBMIT, TRANSMIT, OR SHARE VIA THE SERVICES, OR THE PROFESSIONAL SERVICES DELIVERABLES, INCLUDING ALL CLIENT DATA.
10. LIMITATION OF LIABILITY.
    1. UNDER NO CIRCUMSTANCES WILL COMPANY BE LIABLE TO CLIENT OR ANY THIRD PARTY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE FOR ANY LOST PROFITS, LOSS OF DATA, LOSS OF USE, WORK STOPPAGE, OR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES, HOWEVER CAUSED, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FOR THE AVOIDANCE OF DOUBT, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY DAMAGES RESULTING FROM LOSS OF DATA, LOST PROFITS, LOSS OF USE OF EQUIPMENT, LOSS OF REPUTATION, OR LOST CONTRACTS, OR FOR COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS BY CLIENT.
    2. TO THE FULLEST EXTENT ALLOWED UNDER APPLICABLE LAW, COMPANY’S ENTIRE AGGREGATE LIABILITY, AND CLIENT’S SOLE AND EXCLUSIVE REMEDY, FOR ANY CLAIM OR CAUSE OF ACTION ARISING UNDER THIS AGREEMENT OR ANY OTHER AGREEMENT BETWEEN THE PARTIES SHALL NOT EXCEED THE LESSER OF (1) TEN THOUSAND US DOLLARS ($10,000,00), OR (2) TOTAL FEES PAID OR PAYABLE BY CLIENT TO COMPANY, PURSUANT TO THE APPLICABLE ORDER FORM IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEEDING THE EVENT GIVING RISE TO THE CLAIM OR CAUSE OF ACTION.
    3. The waivers and limitations in this Section apply regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy in this Agreement fails of its essential purpose. Neither party may bring a claim or action, regardless of form, arising out of the Agreement more than twelve (12) months after the claim or cause of action arose.
11. INDEMNIFICATION.
    1. Company Indemnification. Company will indemnify, defend, and hold harmless Client and its officers, directors, agents and employees from and against any third-party claims (including any and all liabilities, damages, losses, costs and expenses and reasonable attorneys’ fees) (“Claims”) finally awarded to the extent such Claims directly arise from Client’s use of the Services infringes on a third-party’s intellectual property rights in the United States.
    2. Client Indemnification. Client will indemnify, defend, and hold harmless Company, its affiliates and their respective officers, directors, agents and employees from and against any and all third-party Claims to the extent such Claims arise from or relate to (1) Client Data or Third Party Content; (2) Client’s breach of the Agreement or Order Form; (3) Client’s gross negligence or willful misconduct; (4) modification to the Services or any deliverables made by or at the direction of Client and designed solely in accordance with specifications provided by Client; (5) Client’s violation of applicable law; and/or (6) Client’s infringement of intellectual property rights of a third party.
    3. Indemnification Procedure. When seeking indemnification pursuant to this Agreement, the party seeking indemnification shall (1) promptly notify the indemnifying party in writing of the Claim provided that any failure or delay to provide such notice shall not affect a party’s obligation to indemnify to the extent the indemnifying party is materially prejudiced by such failure or delay (2) give the indemnifying party reasonable information and cooperation required to defend such suit, claim or proceeding, and (3) allow the indemnifying party to control the defense of any such Claim and all negotiations for its settlement or compromise; provided, however, the indemnifying party shall not settle any claim without the indemnified party’s prior written consent, which shall not be unreasonably withheld or delayed. The indemnified party may be represented in the defense of any such claim, at the indemnified party’s expense, by counsel of its selection. The indemnified party shall have no liability for settlements made or costs incurred without its consent. The absence of insurance shall not diminish any responsibility of either party’s obligation to indemnify under the Agreement.
    4. Mitigations and Exceptions. In response to an actual or potential infringement Claim, Company may at its option: (a) procure rights for Client’s continued use of the Services, (b) replace or modify the allegedly infringing portion of the Services to avoid infringement without reducing the Services’ overall functionality, or if options (a) and (b) are not commercially practicable, (c) terminate the affected Order Form and refund to Client any prepaid, unused amounts for Fees for the terminated portion of the Services.
    5. Conditions. Company shall have no obligation or otherwise (including no indemnification obligations) with respect to any infringement or misappropriation Claims arising out of or resulting from (1) Client’s modification of the Services or use of the Services in combination with any products, equipment, software, data, Third Party Content, or any content not provided by Company (2) Client’s use of the Services other than the most recent release, (3) Client’s unauthorized or non-compliant use of the Services, or (4) if Client settles or makes any admissions about a claim without Company’s prior written consent.
    6. Exclusive remedy. This Section sets out Client’s exclusive remedy and Company’s entire liability regarding infringement of third-party intellectual property rights.
12. CONFIDENTIALITY.
    1. Confidential Information. Except as expressly provided herein, the parties agree that the receiving party shall not publish or otherwise disclose and shall not use for any purpose any non-public information about the disclosing party’s business or activities that is proprietary and confidential that is furnished to it by the disclosing party pursuant to the Agreement which (i) if disclosed in tangible form is marked “Confidential” or with other similar designation to indicate its confidential or proprietary nature, or (ii) if disclosed orally is indicated orally to be confidential or proprietary by the disclosing party at the time of such disclosure, or (iii) is confirmed in writing as confidential or proprietary by the disclosing party within a reasonable time after such disclosure, or (iv) by its nature or the circumstances surrounding its disclosure should reasonably be regarded as confidential (collectively, “Confidential Information”). Notwithstanding the foregoing, Confidential Information shall not include information that, in each case as demonstrated by written documentation: (i) was properly in receiving party’s possession or properly known by it, without restriction, prior to receipt from the disclosing party; (ii) was rightfully disclosed to receiving party by a third party without restriction; (iii) is, or becomes generally available to the public or otherwise part of the public domain, other than through any act or omission of the receiving party (or any subsidiary, agent or employee of the receiving party) in breach of the Agreement; (iv) was independently developed by the receiving party without reference to or use of any Confidential Information disclosed by the disclosing party; or (v) is approved in writing by the disclosing party for release.
    2. Return of Confidential Information. Upon termination of the Agreement for any reason or upon request of the disclosing party at any time, the receiving party will (i) promptly return to the disclosing party the original and all copies of all Confidential Information or, in lieu thereof, certify that all such Confidential Information has been destroyed; and (ii) destroy all notes and copies thereof made by receiving party containing any Confidential Information, provided that neither party shall be obligated to return or destroy Confidential Information to the extent necessary to fulfill its obligations and to enforce its rights under the Agreement or to the extent otherwise required by law, regulation, legal, regulatory or judicial process, rule or practice governing professionals or any internal compliance policy or procedure relating to the safeguarding or backup storage of data; provided that any such Confidential Information so not returned or destroyed shall remain subject to the confidentiality and use covenants contained herein, without regard to Term.
    3. Confidentiality and Non-Use. As receiving party, each party will (a) hold in confidence and not disclose Confidential Information to third parties except as permitted in this Agreement, and (b) only use Confidential Information to fulfill its obligations and exercise its rights in this Agreement. The receiving party shall use reasonable care to protect the Confidential Information using at least the same degree of care the receiving party uses to protect its own Confidential Information of a similar nature, but in no event with less than reasonable care. The receiving party may disclose Confidential Information to its employees, agents, contractors and other representatives having a legitimate need to know (including, for Company the subcontractors referenced herein), provided it remains responsible for their compliance with this Section and they are bound to confidentiality obligations no less protective than this Section.
    4. Remedies. Each party agrees that unauthorized use or disclosure of Confidential Information may cause substantial harm for which money damages alone are an insufficient remedy. Each party may seek appropriate equitable relief, including an injunction (without the necessity of posting any bond or surety), in addition to other available remedies, for breach or threatened breach of this Section.
    5. Permitted Disclosures. Nothing in this Agreement prohibits either party from making disclosures, including of Client Data and other Confidential Information, to the extent such disclosure is reasonably necessary for: (i) exercising the rights granted to it and fulfilling its obligations under the Agreement, provided such disclosure is only made to the receiving party’s employees, agents, consultants, or representatives with a need to know such Confidential Information and who are bound by a confidentiality agreement or other duty of confidentiality no less restrictive than the duties in this Section; (ii) complying with applicable law, rules, or regulations; or (iii) submitting information to tax or other governmental authorities. If a party is required to make any disclosure of the disclosing party’s Confidential Information in accordance with subsections (ii) and (iii) above, to the extent it can legally do so, it will give reasonable advance written notice to the disclosing party of such intended disclosure, and will use its reasonable efforts to secure confidential treatment of such information prior to its disclosure (such as seeking, or allowing the disclosing party a reasonable opportunity to seek,  a protective orders or otherwise).
13. NON-SOLICITATION. During the Term of this Agreement and for a period of twelve (12) months thereafter, Client shall not, directly or indirectly, in any manner solicit or induce for employment any person who performed any work under this Agreement on behalf of Company or its affiliates who is in the employment of the Company or its affiliates. Client agrees to pay Company as liquidated damages an amount equal to 50% of the annual salary of an employee solicited and hired from Company or its affiliates, unless the parties mutually agree to another amount.
14. PUBLICITY. Neither party may publicly announce this Agreement except with the other party’s prior written consent or as required by law. However, Company may include Client and its trademarks in its customer lists and promotional materials but will cease use at Client’s written request.
15. GENERAL PROVISIONS.
    1. Relationship of the Parties. The parties are independent contractors, not agents, partners, or joint venturers.
    2. Assignment. Company and Client may not assign this Agreement without the prior written consent of the other party, except that either party may assign this Agreement upon notice in connection with a merger, reorganization, acquisition or other transfer of all or substantially all its assets or voting securities. Any non-permitted assignment is void. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns.
    3. Entire Agreement. This Agreement is the parties’ entire agreement regarding its subject matter and supersedes any prior or contemporaneous agreements or communications regarding its subject matter, whether written or oral. In this Agreement, headings are for convenience only and “including” and similar terms are to be construed without limitation. This Agreement may be executed in counterparts (including electronic copies and PDFs), each of which is deemed an original and which together form one and the same agreement.
    4. Updates to Agreement and Services. Company reserves the right to revise and update the terms of this Agreement, to add or revise applicable terms of use for its website or the Services, or modify or discontinue the Services (or any part thereof) at any time with or without notice. All revisions and updates are effective immediately when posted to the Site as indicated in the “Last Updated” date above and apply to all access and use of the Services thereafter. Client agrees to review the latest version of the Agreement on the Site periodically to remain aware of any modifications to the Agreement. Any use of the Services after any revisions or updates will constitute acceptance by Client of such changes. We may update the functionality, content, method, provision or integration methods of Services from time-to-time and note the Service content is not necessarily complete or up-to-date. Any of the material on Services may be out of date at any given time, and we are under no obligation to update such material. Company shall not be liable to Client or to any third party for any modification, price change, suspension or discontinuation of the Services.
    5. Notices. Except as set out in this Agreement, notices to Client under this Agreement must be in writing and will be deemed received (a) immediately upon delivery as set forth below, (b) the business day following delivery via nationally-recognized overnight courier service, or (c) the third business day after it is sent to either the email address for Client that is on file with the Company, or by U.S. mail to the mailing address on the applicable Order Form, or the contact information associated with Client’s account provided at registration, as applicable. Any notices to Company shall be deemed effective upon receipt and must be delivered by sending by (i) certified US mail, return receipt requested, or (ii) by overnight courier  to Legal Department – EZClaim, 540 Devall Drive, Suite 301, Auburn AL 36832, Attn: General Counsel; in either case with an Email to: Legal@fullsteam.com. Client may update their contact information for notice by providing notice to Company. Company may also send operational notices to Client electronically, including through the Services.
    6. Equitable Relief. Client and Company agree that a breach of this Agreement may cause irreparable injury and damage, and that the non-breaching party will be entitled to injunctive and other equitable relief to prevent a breach, in addition to any other remedy to which the non-breaching party might be entitled.
    7. Governing Law and Jury Trial Waiver. The Agreement shall be governed by and construed in accordance with the laws of (i) the United States of America and the State of Alabama, if Client is domiciled or resident in the United States or anywhere other than Canada or Europe, (ii) Canada, and Province of Ontario, if Client is domiciled or resident in Canada, and (iii) France, if Client is domiciled or resident in a country in Europe, in each case excluding rules governing conflict of law and choice of law. The (A) state and federal courts located in Lee County, Alabama shall have exclusive jurisdiction to adjudicate any dispute arising out of the Agreement if United States and the State of Alabama laws apply, (B) the provincial and federal courts in in the City of Toronto, Ontario shall have exclusive jurisdiction to adjudicate any dispute arising out of this Agreement if Canadian law applies, and (C) the courts in Paris, France shall have exclusive jurisdiction to adjudicate any dispute arising out of the Agreement if French law applies. Each party hereto expressly consents to the personal jurisdiction of, and venue in, such applicable courts. The parties agree that the UN Convention on Contracts for the International Sale of Goods (Vienna, 1980) and the Uniform Computer Information Transaction Act or similar federal or state laws or regulations shall not apply to the Agreement nor to any dispute or transaction arising out of the Agreement. THE PARTIES HEREBY IRREVOCABLY WAIVE ANY AND ALL RIGHTS TO A TRIAL BY JURY IN ANY ACTION, ARISING OUT OF THIS AGREEMENT.
    8. Dispute Resolution. In the event of a dispute by Client arising out of this Agreement, the parties agree that in good faith they will escalate the dispute to management in their respective organizations and agree to meet and confer at least once in an effort to resolve any such dispute within ninety (90) days of first written notice of the dispute. If such escalation and meet and confer attempts do not resolve the dispute, the parties agree to participate in at least one (1) day of non-binding mediation (costs to be split by the parties) with a mediator to which they jointly consent before proceeding filing a claim in court against the other party.
    9. Force Majeure. Company and Client are not liable for any delay or failure to perform any obligations under this Agreement (except for payment obligations) due to events beyond their reasonable control, such as a strike, blockade, war, act of terrorism, riot, Internet or utility failures, refusal of government license, or natural disaster provided, however, that in the event such period of extended delay exceeds ninety (90) days in respect of a Party, either Party may terminate this Agreement upon notice to the Party, as applicable or, in the case of Company, may invoke its right of suspension in accordance with the Agreement.
    10. Subcontractors. Company may use subcontractors and permit them to exercise Company’s rights under the Agreement, but Company remains responsible for the subcontractors and the delivery of the Services to Client under this Agreement.
    11. Waivers and Severability. Waiver by a party of any breach of any provision of the Agreement must be in writing and signed by the waiving party’s authorized representative and cannot be implied from conduct. If any provision of this Agreement is held impermissible pursuant to applicable law, invalid by a court of competent jurisdiction, or otherwise illegal or unenforceable, it will be limited to the minimum extent necessary, so the rest of this Agreement remains in full force and effect to the fullest extent possible.
    12. Third Parties. Except as expressly provided herein, this Agreement does not create or establish any rights or beneficiaries for any person or entity that is not a party to this Agreement.
    13. Export. Client acknowledges that the Services may be subject to export control and economic sanctions restrictions imposed by the U.S. government and import restrictions by certain foreign governments (collectively “Trade Laws”). In using or accessing the Services, Client will not and will not allow any third party to use the Services in violation of any Trade Laws or remove or export from the U.S. or allow the export or re-export of any part of the Service or any direct product thereof to any location, party or end-use which the U.S. government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval. Client represents and warrants that it and any of its Authorized Users: (i) are not listed on any U.S. government list of prohibited or restricted parties, including the U.S. Treasury Department list of Specially Designated Nationals and Blocked Persons, or the U.S. Commerce Department Denied Persons List or Entity List; (ii) are not an entity or person who is organized under the laws of, ordinarily resident in, or controlled by the government of, any country or region (1) that is subject to a U.S. government embargo or comprehensive sanction, (2) to which the U.S. has prohibited export transactions, or (3) that has been designated by the U.S. government as a “terrorist supporting” country; (iii) will not use the Services for the manufacture, design or development of nuclear, chemical or biological weapons or missile technology, or for terrorist activity; and (iv) will not submit to the Service any information controlled under the U.S. International Traffic in Arms Regulations or listed on the Commerce Control List unless approved in writing by Company. Client will notify Company promptly if it or any Authorized User becomes subject to any order or restriction listed in this Section.
    14. Compliance with Laws. Client and Company will comply with all applicable laws in their access, use and provision of the Services.
    15. Open Source and Third-Party Software. The Services may incorporate third-party open-source software (“OSS”), as listed in the Documentation or provided by Company upon request. Client’s internal use of the unmodified Services in the form provided and as authorized in this Agreement will not require Client to comply with the terms of OSS licenses.
    16. Government End-Users. Elements of the Services are commercial computer software. If the user or licensee of the Services is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Service or any related documentation of any kind, including technical data and manuals, is restricted by the terms of this Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. The Services were developed fully at private expense. All other use is prohibited.
    17. Antibribery and Kickbacks. Client has not received or been offered any bribe, kickback, illegal or improper payment, gift, or thing of value from any Company personnel or agents in connection with the Agreement, other than reasonable gifts and entertainment provided in the ordinary course of business. If Client becomes aware of any violation of the above restriction, Client will promptly notify Company.
16. CLASS ACTION WAIVER
    1. THIS SECTION CONTAINS A BINDING CLASS ACTION WAIVER. IT AFFECTS YOUR RIGHTS ABOUT HOW TO RESOLVE ANY DISPUTE WITH US. To the extent permitted by applicable law (“Excluded Disputes”), Client may only bring any claims related to this Agreement in court or arbitration on its own behalf and not on a class or collective basis on behalf of others.  Client agrees that it will not participate in any class or collective action or as a member of any such class or collective proceeding for any claims related to or arising out of covered this Agreement and Services from Company. Client also agrees not to participate in claims brought in a private attorney general or representative capacity, or consolidated claims involving another person’s account, if we are a party to the proceeding. YOU AGREE THAT YOU VOLUNTARILY, KNOWINGLY, AND INTELLIGENTLY WAIVE ANY RIGHT YOU MAY HAVE TO BRING OR OTHERWISE PARTICIPATE WITH OTHER PERSONS IN ANY CLASS, COLLECTIVE, CONSOLIDATED ACTION OR REPRESENTATIVE ACTION UNDER ANY FEDERAL, STATE OR LOCAL LAW OR STATUTE TO THE FULLEST EXTENT PERMITTED BY LAW.  To opt out, you must notify us in writing within thirty (30) days of the date that you first became subject to this provision. You must use this address to opt out: legal@fullsteam.comYou must include your name and residence address, the email address you use for your account with us, and a clear statement that you want to opt out.  If and to the extent the prohibition against class actions and other claims brought on behalf of third parties contained above is found to be unenforceable, then such preceding language in this section will be null and void.

This Business Associate Agreement (“Agreement”) is made and entered into as an integral part of the Master Services Agreement to which it is attached.

1. Definitions. Terms used, but not otherwise defined in this Agreement, shall have the same meaning as those terms in the Privacy Rule, Security Rule, and HITECH Act.
   1. Agent. “Agent” shall have the meaning as determined in accordance with the federal common law of agency.
   2. Breach. “Breach” shall have the same meaning as the term “breach” in 45 CFR §164.402.
   3. Business Associate. “Business Associate” shall mean a person or entity who, on behalf of a covered entity, performs or assists in performance of a function or activity involving the use or disclosure of individually identifiable health information, such as data analysis, claims processing or administration, utilization review, and quality assurance reviews, or any other function or activity regulated by the HIPAA Administrative Simplification Rules, including the Privacy Rule. Business associates are also persons or entities performing legal, actuarial, accounting, consulting, data aggregation, management, administrative, accreditation, or financial services to or for a covered entity where performing those services involves disclosure of individually identifiable health information by the covered entity or another business associate of the covered entity to that person or entity.
   4. Covered Entity. “Covered Entity” shall mean (1) health plans, (2) health care clearinghouses, and (3) health care providers who electronically transmit any health information in connection with transactions for which HHS has adopted standards.
   5. Data Aggregation. “Data Aggregation” shall have the same meaning as the term “data aggregation” in 45 CFR §164.501.
   6. Designated Record Set. “Designated Record Set” shall have the same meaning as the term “designated record set” in 45 CFR §164.501.
   7. Disclosure. “Disclosure” and “Disclose” shall have the same meaning as the term “Disclosure” in 45 CFR §160.103.
   8. Electronic Health Record. “Electronic Health Record” shall have the same meaning as the term in Section 13400 of the HITECH Act.
   9. Health Care Operations. “Health Care Operations” shall have the same meaning as the term “health care operations” in 45 CFR §164.501.
   10. HIPAA Rules. “HIPAA Rules” shall mean the Privacy, Security, Breach Notification, and Enforcement Rules at 45 CFR Part 160 and Part 164.
   11. HITECH Act. “HITECH Act” shall mean The Health Information Technology for Economic and Clinical Health Act, part of the American Recovery and Reinvestment Act of 2009 (“ARRA” or “Stimulus Package”), specifically DIVISION A: TITLE XIII Subtitle D—Privacy, and its corresponding regulations as enacted under the authority of the Act.
   12. Individual. “Individual” shall have the same meaning as the term “individual” in 45 CFR §160.103 and shall include a person who qualifies as a personal representative in accordance with 45 CFR §164.502(g).
   13. Minimum Necessary. “Minimum Necessary” shall mean the Privacy Rule Standards found at §164.502(b) and §164.514(d)(1).
   14. Privacy Rule. “Privacy Rule” shall mean the Standards for Privacy of Individually Identifiable Health Information at 45 CFR Part 160 and Part 164, Subparts A and E.
   15. Protected Health Information. “Protected Health Information” shall have the same meaning as the term “protected health information” in 45 CFR §160.103, limited to the information created, received, maintained or transmitted by Business Associate on behalf of Covered Entity.
   16. Required By Law. “Required By Law” shall have the same meaning as the term “required by law” in 45 CFR §164.103.
   17. Secretary. “Secretary” shall mean the Secretary of the Department of Health and Human Services or his or her designee.
   18. Security Incident. “Security Incident” shall have the same meaning as the term “Security Incident” in in 45 CFR §164.304.
   19. Security Rule. “Security Rule” shall mean the Standards for Security of Electronic Protected Health Information at 45 C.F.R. parts §160 and §164, Subparts A and C.
   20. Subcontractor. “Subcontractor” shall mean a person or entity “that creates, receives, maintains, or transmits protected health information on behalf of a business associate” and who is now considered a business associate, as the latter term is defined in in in 45 CFR §160.103.
   21. Subject Matter. “Subject Matter” shall mean compliance with the HIPAA Rules and with the HITECH Act.
   22. Unsecured Protected Health Information. “Unsecured Protected Health Information” shall have the same meaning as the term “unsecured protected health information” in 45 CFR §164.402.
   23. Use. “Use” shall have the same meaning as the term “Use” in 45 CFR §164.103.
2. Obligations and Activities of Business Associate.
   1. Business Associate agrees to not Use or Disclose Protected Health Information other than as permitted or required by this Agreement or as Required By Law.
   2. Business Associate agrees to use appropriate safeguards to prevent Use or Disclosure of Protected Health Information other than as provided for by this Agreement. Business Associate further agrees to implement administrative, physical and technical safeguards that reasonably and appropriately protect the confidentiality, integrity and availability of any electronic Protected Health Information, as provided for in the Security Rule and as mandated by Section 13401 of the HITECH Act.
   3. Business Associate agrees to mitigate, to the extent practicable, any harmful effect that is known to Business Associate of a Use or Disclosure of Protected Health Information by Business Associate in violation of the requirements of this Agreement. Business Associate further agrees to report to Covered Entity any Use or Disclosure of Protected Health Information not provided for by this Agreement of which it becomes aware, and in a manner as prescribed herein.
   4. Business Associate agrees to report to Covered Entity any Security Incident, including all data Breaches or compromises, whether internal or external, related to Protected Health Information, whether the Protected Health Information is secured or unsecured, of which Business Associate becomes aware.
   5. If the Breach, as discussed in paragraph 2(d), pertains to Unsecured Protected Health Information, then Business Associate agrees to report any such data Breach to Covered Entity within ten (10) business days of discovery of said Breach; all other compromises, or attempted compromises, of Protected Health Information shall be reported to Covered Entity within twenty (20) business days of discovery. Business Associate further agrees, consistent with Section 13402 of the HITECH Act, to provide Covered Entity with information necessary for Covered Entity to meet the requirements of said section, and in a manner and format to be specified by Covered Entity.
   6. If Business Associate is an Agent of Covered Entity, then Business Associate agrees that any Breach of Unsecured Protected Health Information shall be reported to Covered Entity immediately after the Business Associate becomes aware of said Breach, and under no circumstances later than one (1) business day thereafter. Business Associate further agrees that any compromise, or attempted compromise, of Protected Health Information, other than a Breach of Unsecured Protected Health Information as specified in 2(e) of this Agreement, shall be reported to Covered Entity within ten (10) business days of discovering said compromise, or attempted compromise.
   7. Business Associate agrees to ensure that any Subcontractor, to whom Business Associate provides Protected Health Information, agrees to the same restrictions and conditions that apply through this Agreement to Business Associate with respect to such information. Business Associate further agrees that restrictions and conditions analogous to those contained herein shall be imposed on said Subcontractors via a written agreement that complies with all the requirements specified in §164.504(e)(2), and that Business Associate shall only provide said Subcontractors Protected Health Information consistent with Section 13405(b) of the HITECH Act. Further, Business Associate agrees to provide copies of said written agreements to Covered Entity within ten (10) business days of a Covered Entity’s request for same.
   8. Business Associate agrees to provide access, at the request of Covered Entity and during normal business hours, to Protected Health Information in a Designated Record Set to Covered Entity or, as directed by Covered Entity, to an Individual, in order to meet Covered Entity’s requirements under 45 CFR §164.524, provided that Covered Entity delivers to Business Associate a written notice at least three (3) business days in advance of requesting such access. Business Associate further agrees, in the case where Business Associate controls access to Protected Health Information in an Electronic Health Record, or controls access to Protected Health Information stored electronically in any format, to provide similar access in order for Covered Entity to meet its requirements the HIPAA Rules and under Section 13405(c) of the HITECH Act. These provisions do not apply if Business Associate and its employees or Subcontractors have no Protected Health Information in a Designated Record Set of Covered Entity.
   9. Business Associate agrees to make any amendment(s) to Protected Health Information in a Designated Record Set that Covered Entity directs or agrees to pursuant to 45 CFR §164.526, at the request of Covered Entity or an Individual. This provision does not apply if Business Associate and its employees or Subcontractors have no Protected Health Information from a Designated Record Set of Covered Entity.
   10. Unless otherwise protected or prohibited from discovery or disclosure by law, Business Associate agrees to make internal practices, books, and records, including policies and procedures (collectively “Compliance Information”), relating to the Use or Disclosure of Protected Health Information and the protection of same, available to the Covered Entity or to the Secretary for purposes of the Secretary determining Covered Entity’s compliance with the HIPAA Rules and the HITECH Act. Business Associate further agrees, at the request of Covered Entity, to provide Covered Entity with demonstrable evidence that its Compliance Information ensures Business Associate’s compliance with this Agreement over time. Business Associate shall have a reasonable time within which to comply with requests for such access and/or demonstrable evidence, consistent with this Agreement. In no case shall access, or demonstrable evidence, be required in less than five (5) business days after Business Associate’s receipt of such request, unless otherwise designated by the Secretary.
   11. Business Associate agrees to maintain necessary and sufficient documentation of Disclosures of Protected Health Information as would be required for Covered Entity to respond to a request by an Individual for an accounting of such Disclosures, in accordance with 45 CFR §164.528.
   12. On request of Covered Entity, Business Associate agrees to provide to Covered Entity documentation made in accordance with this Agreement to permit Covered Entity to respond to a request by an Individual for an accounting of disclosures of Protected Health Information in accordance with 45 C.F.R. §164.528. Business Associate shall provide said documentation in a manner and format to be specified by Covered Entity. Business Associate shall have a reasonable time within which to comply with such a request from Covered Entity and in no case shall Business Associate be required to provide such documentation in less than three (3) business days after Business Associate’s receipt of such request.
   13. Except as provided for in this Agreement, in the event Business Associate receives an access, amendment, accounting of disclosure, or other similar request directly from an Individual, Business Associate shall redirect the Individual to the Covered Entity.
   14. To the extent that Business Associate carries out one or more of Covered Entity’s obligations under the HIPAA Rules, the Business Associate must comply with all requirements of the HIPAA Rules that would be applicable to the Covered Entity.
   15. A Business Associate must honor all restrictions consistent with 45 C.F.R. §164.522 that the Covered Entity or the Individual makes the Business Associate aware of, including the Individual’s right to restrict certain disclosures of protected health information to a health plan where the individual pays out of pocket in full for the healthcare item or service, in accordance with HITECH Act Section 13405(a).
3. Permitted Uses and Disclosures by Business Associate.
   1. Except as otherwise limited by this Agreement, Business Associate may make any Uses and Disclosures of Protected Health Information necessary to perform its services to Covered Entity and otherwise meet its obligations under this Agreement, if such Use or Disclosure would not violate the Privacy Rule, or the privacy provisions of the HITECH Act, if done by Covered Entity. All other Uses or Disclosures by Business Associate not authorized by this Agreement, or by specific instruction of Covered Entity, are prohibited.
   2. Except as otherwise limited in this Agreement, Business Associate may Use Protected Health Information for the proper management and administration of the Business Associate or to carry out the legal responsibilities of the Business Associate.
   3. Except as otherwise limited in this Agreement, Business Associate may Disclose Protected Health Information for the proper management and administration of the Business Associate, provided that Disclosures are Required By Law, or Business Associate obtains reasonable assurances from the person to whom the information is Disclosed that it will remain confidential and used, or further Disclosed, only as Required By Law, or for the purpose for which it was Disclosed to the person, and the person notifies the Business Associate of any instances of which it is aware in which the confidentiality of the information has been breached.
   4. Except as otherwise limited in this Agreement, Business Associate may Use Protected Health Information to provide Data Aggregation services to Covered Entity as permitted by 45 CFR §164.504(e)(2)(i)(B). Business Associate agrees that such Data Aggregation services shall be provided to Covered Entity only wherein said services pertain to Health Care Operations. Business Associate further agrees that said services shall not be provided in a manner that would result in Disclosure of Protected Health Information to another covered entity who was not the originator and/or lawful possessor of said Protected Health Information. Further, Business Associate agrees that any such wrongful Disclosure of Protected Health Information is a direct violation of this Agreement and shall be reported to Covered Entity immediately after the Business Associate becomes aware of said Disclosure and, under no circumstances, later than three (3) business days thereafter.
   5. Business Associate may Use Protected Health Information to report violations of law to appropriate Federal and State authorities, consistent with §164.502(j)(1).
   6. Business Associate shall make Uses, Disclosures, and requests for Protected Health Information consistent with the Minimum Necessary principle as defined herein.
4. Obligations and Activities of Covered Entity.
   1. Covered Entity shall notify Business Associate of the provisions and any limitation(s) in its notice of privacy practices of Covered Entity in accordance with 45 CFR §164.520, to the extent that such provisions and limitation(s) may affect Business Associate’s Use or Disclosure of Protected Health Information.
   2. Covered Entity shall notify Business Associate of any changes in, or revocation of, permission by an Individual to use or disclose Protected Health Information, to the extent that the changes or revocation may affect Business Associate’s use or disclosure of Protected Health Information.
   3. Covered Entity shall notify Business Associate of any restriction to the use or disclosure of Protected Health Information that Covered Entity has agreed to in accordance with 45 CFR §164.522, and also notify Business Associate regarding restrictions that must be honored under section 13405(a) of the HITECH Act, to the extent that such restrictions may affect Business Associate’s Use or Disclosure of Protected Health Information.
   4. Covered Entity shall notify Business Associate of any modifications to accounting disclosures of Protected Health Information under 45 CFR §164.528, made applicable under Section 13405(c) of the HITECH Act, to the extent that such restrictions may affect Business Associate’s use or disclosure of Protected Health Information.
   5. Covered Entity shall provide Business Associate, within thirty (30) business days of Covered Entity executing this Agreement, a description and/or specification regarding the manner and format in which Business Associate shall provide information to Covered Entity, wherein such information is required to be provided to Covered Entity as agreed to by Business Associate in paragraph 2(e) of this Agreement. Covered Entity reserves the right to modify the manner and format in which said information is provided to Covered Entity, as long as the requested modification is reasonably required by Covered Entity to comply with the HIPAA Rules or the HITECH Act, and Business Associate is provided sixty (60) business days notice before the requested modification takes effect.
   6. Covered Entity shall provide Business Associate, within thirty (30) business days of Covered Entity executing this Agreement, a description and/or specification regarding the manner and format in which Business Associate shall provide information to Covered Entity, wherein such information is required to be provided to Covered Entity as agreed to by Business Associate in paragraph 2(l) of this Agreement. Covered Entity reserves the right to modify the manner and format in which said information is provided to Covered Entity, as long as the requested modification is reasonably required by Covered Entity to comply with the HIPAA Rules or the HITECH Act, and Business Associate is provided sixty (60) business days notice before the requested modification takes effect.
   7. Covered Entity shall not require Business Associate to Use or Disclose Protected Health Information in any manner that would not be permissible under the HIPAA Rules if done by the Covered Entity.
5. Term and Termination.
   1. Term. The Term of this Agreement shall begin as of the Effective Date and shall terminate when all of the Protected Health Information provided by Covered Entity to Business Associate, or created or received by Business Associate on behalf of Covered Entity, is destroyed or returned to Covered Entity, or, if it is infeasible to return or destroy Protected Health Information, protections are extended to such information, in accordance with the termination provisions in this Agreement.
   2. Termination for Cause by Covered Entity. Upon Covered Entity’s knowledge of a material breach of this Agreement by Business Associate, Covered Entity shall give Business Associate written notice of such breach and provide reasonable opportunity for Business Associate to cure the breach or end the violation. Covered Entity may terminate this Agreement, and Business Associate agrees to such termination, if Business Associate has breached a material term of this Agreement and does not cure the breach or cure is not possible. If neither termination nor cure is feasible, Covered Entity shall report the violation to the Secretary.
   3. Termination for Cause by Business Associate. Upon Business Associate’s knowledge of a material breach of this Agreement by Covered Entity, Business Associate shall give Covered Entity written notice of such breach and provide reasonable opportunity for Covered Entity to cure the breach or end the violation. Business Associate may terminate this Agreement, and Covered Entity agrees to such termination, if Covered Entity has breached a material term of this Agreement and does not cure the breach or cure is not possible. If neither termination nor cure is feasible, Business Associate shall report the violation to the Secretary.
   4. Effect of Termination.
      1. Except as provided in paragraph (2) of this section, upon termination of this Agreement for any reason, Business Associate shall return or destroy all Protected Health Information received from, or created or received by Business Associate on behalf of Covered Entity. This provision shall also apply to Protected Health Information that is in the possession of Subcontractors of Business Associate. Business Associate shall retain no copies of the Protected Health Information.
      2. In the event that Business Associate determines that returning or destroying the Protected Health Information is infeasible, Business Associate shall provide to Covered Entity, within ten (10) business days, notification of the conditions that make return or destruction infeasible. Upon such determination, Business Associate shall extend the protections of this Agreement to such Protected Health Information and limit further uses and disclosures of such Protected Health Information to those purposes that make the return or destruction infeasible, for so long as Business Associate maintains such Protected Health Information.
6. Entire Agreement.
   1. This Agreement sersedes all other prior and contemporaneous written and oral agreements and understandings between Covered Entity and Business Associate regarding this Subject Matter. It contains the entire Agreement between the parties.
   2. This Agreement may be modified only by a signed written agreement between Covered Entity and Business Associate.
   3. All other agreements entered into between Covered Entity and Business Associate, not related to this Subject Matter, remain in full force and effect.
7. Governing Law.
   1. This Agreement and the rights of the parties shall be governed by and construed in accordance with Federal law as it pertains to the Subject Matter. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to applicable principles of conflicts of law to the extent that the application of the laws of another jurisdiction would be required thereby. In case of any dispute related to this Agreement, the parties agree to submit to personal jurisdiction in the State of Delaware.  Furthermore, the parties hereby irrevocably and unconditionally submit to the exclusive jurisdiction of any court of the State of Delaware or any federal court sitting in the State of Delaware for purposes of any suit, action or other proceeding arising out of this Agreement.  THE PARTIES HEREBY IRREVOCABLY WAIVE ANY AND ALL RIGHTS TO A TRIAL BY JURY IN ANY ACTION, SUIT OR OTHER PROCEEDING ARISING OUT OF OR RELATING TO THE TERMS, OBLIGATIONS AND/OR PERFORMANCE OF THIS AGREEMENT.
8. Miscellaneous.
   1. Regulatory References. A reference in this Agreement to a section in the Privacy Rule, Security Rule, or HITECH Act means the section as in effect or as amended.
   2. Amendment. The Parties agree to take such action as is necessary to amend this Agreement from time to time as is necessary for Covered Entity and Business Associate to comply with the requirements of the Privacy Rule, Security Rule, the Health Insurance Portability and Accountability Act of 1996 (Pub. L. No. 104-191), and the HITECH Act, and its corresponding regulations.
   3. Survival. The respective rights and obligations of Business Associate under Section 5(d) of this Agreement shall survive the termination of this Agreement.
   4. Interpretation. Any ambiguity in this Agreement shall be resolved to permit Covered Entity and Business Associate to comply with the Privacy Rule, Security Rule, the Health Insurance Portability and Accountability Act of 1996 (Pub. L. No. 104-191), and the HITECH Act, and its corresponding regulations.
   5. Severability. If any provision or provisions of this Agreement is/are determined by a court of competent jurisdiction to be unlawful, void, or unenforceable, this Agreement shall not be unlawful, void or unenforceable thereby, but shall continue in effect and be enforced as though such provision or provisions were omitted.