Business Associate Agreement

This Business Associate Agreement (the "Agreement") is entered into effective as of January 01, 2012 (the "Effective Date"), by and between Episode Alert™, LLC., a Florida Corporation ("Business Associate"), and a User Organization ("Company" or "Covered Entity"), to provide satisfactory assurances that Business Associate, in its provision of Application Service Provision contract entered into as of January 01, 2012, by and between Business Associate and Company, and otherwise in its business relationship with Company, will appropriately safeguard Protected Health Information (as defined below) that is disclosed to Business Associate for the provision of services provided by Business Associate to Company. This Agreement is intended to comply with the requirements of the Health Insurance Portability and Accountability Act of 1996 ("HIPAA") and its implementing regulations (45 C.F.R. Parts 160-64).

1. Definitions.

1. General. Terms used, but not otherwise defined, in this Agreement shall have the same meaning as those terms in 45 CFR 160.103 and 164.501.
2. Specific.

1. Individual. "Individual" shall have the same meaning as the term "individual" in 45 CFR 164.501 and shall include a person who qualifies as a personal representative in accordance with 45 CFR 164.502(g), as amended from time to time.
2. 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.
3. Protected Health Information. "Protected Health Information" shall have the same meaning as the term "protected health information" in 45 CFR 164.501, limited to the information created or received by Business Associate from or on behalf of Covered Entity.
4. Required By Law. "Required By Law" shall have the same meaning as the term "required by law" in 45 CFR 164.501.
5. Secretary. "Secretary" shall mean the Secretary of the Department of Health and Human Services or his designee.

2. Obligations and Activities of Business Associate

1. Use and Disclosure. Business Associate agrees to not use or further disclose Protected Health Information other than as permitted or required by this Agreement or as Required By Law.
2. Appropriate Safeguards. Business Associate agrees to use appropriate safeguards to prevent use or disclosure of the Protected Health Information other than as provided for by or consistent with the terms of this Agreement. Without limiting the generality of the foregoing, Business Associate agrees to protect the integrity and confidentiality of any Protected Health Information it electronically exchanges with Covered Entity.
3. Reporting. Business Associate agrees to report to Covered Entity any use or disclosure of the Protected Health Information not provided for by or permitted under this Agreement of which it becomes aware.
4. Mitigation. 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.
5. Agents. Business Associate agrees to ensure that any agent, including a subcontractor, to whom it provides Protected Health Information received from, or created or received by, Business Associate on behalf of Covered Entity agrees to the same restrictions and conditions that apply through this Agreement to Business Associate with respect to such information.

3. Permitted Uses and Disclosures by Business Associate.

1. ASP Agreement. Except as otherwise limited in this Agreement, Business Associate may use or disclose Protected Health Information to perform functions, activities, or services for, or on behalf of, Covered Entity as specified in this Agreement, provided that such use or disclosure would not violate the Privacy Rule if done by Covered Entity.
2. Use for Administration of Business Associate. 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 through its legally purchased software.
3. Disclosure for Administration of Business Associate. 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. Data Aggregation. 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 42 CFR 164.504(e)(2)(i)(B).
5. Reporting to Governmental Authorities. 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. Access to IT Policies and Procedures. Business Associate agrees to make internal practices and records relating to the use and disclosure of Protected Health Information received from, or created or received by Business Associate on behalf of the Covered Entity available to the Covered Entity, or to the Secretary, in a time and manner reasonably designated by the Covered Entity or the Secretary, for purposes of the Secretary determining Covered Entity’s compliance with the Privacy Rule.
7. Accountings. Business Associate agrees to document such disclosures of Protected Health Information and information related to such disclosures as would be required for the Covered Entity to respond to a request by an Individual for an accounting of disclosures of Protected Health Information in accordance with the terms and provisions of 45 CFR §164.528, which sets forth the standards of the right of an Individual to an accounting of disclosures of Protected Health Information and the implementation specifications for the content of an accounting, provision of an accounting and documentation of an accounting, and which indicates that documentation of disclosures of Protected Health Information is not required when the disclosures are to carry out treatment, payment and health care operations as provided in §164.506 and for other specified disclosures for which such documentation is not required.
8. Requests for Accountings. Business Associate agrees to provide to Covered Entity or an Individual, in time and manner reasonably designated by the Covered Entity, information collected in accordance with Section 2.g. of 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 CFR 164.528.

4. Obligations of Covered Entity.

1. Notice of Privacy Practices. Covered Entity shall notify Business Associate of any limitations(s) in its notice of privacy practices of Covered Entity in accordance with 45 CFR 164.520, to the extent that such limitation may affect Business Associate’s use or disclosure of Protected Health Information.
2. Changes or Revocation by Covered Entity and all its users. Covered Entity shall immediately notify Business Associate of any changes in, or revocation of, any users permission to use or disclose Protected Health Information, by written notice to the office of Business Associate, to the extent that such changes may affect Business Associate’s use or disclosure of Protected Health Information.
3. Notice of Restrictions on Use or Disclosure. 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, to the extent that such restriction may affect Business Associate’s use or disclosure of Protected Health Information.
4. Privacy Notice. Covered Entity shall provide Business Associate with the notice of privacy practices that Covered Entity produces in accordance with 45 CFR 164.520, as well as any changes to such notice at least thirty (30) days prior to the Effective Date of this Agreement or the changes to such notice.
5. Changes of Permission of Individual. Covered Entity shall provide Business Associate with any changes in, or revocation of, permission by Individual to use or disclose Protected Health Information, if such changes affect Business Associate’s permitted or required uses and disclosures, by written notice to the professional at the office of Business Associate who is primarily responsible for use or disclosure within five (5) business days of Covered Entity’s receipt of such change or modification.
6. Restrictions on Use or Disclosure. Covered Entity shall notify Business Associate of any restriction to the use or disclosure of Protected Health Information that Covered Entity has agreed to on behalf of all its users in accordance with 45 CFR 164.522 by written notice to the professional at the office of Business Associate who is primarily responsible for use or disclosure within five (5) business days of Covered Entity’s adoption of such restriction.
7. Prohibited Requests by Covered Entity. Except as set forth in Section 3 of this Agreement, Covered Entity shall not request Business Associate to use or disclose Protected Health Information in any manner that would not be permissible under the Privacy Rule if done by Covered Entity.

5. Term and Termination.

1. Term. This Agreement shall be effective on 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 not feasible to return or destroy Protected Health Information, protections are extended to such information, in accordance with the termination provisions in this Section.
2. Termination for Cause by the Covered Entity. Upon Covered Entity’s knowledge of a material breach by Business Associate, Covered Entity shall provide an opportunity for Business Associate to cure the breach or end the violation and may terminate this Agreement if Business Associate does not cure the breach or end the violation within ten (10) business days of the receipt of a detailed written notice of such material breach, or immediately terminate this Agreement if Business Associate has breached a material term of this Agreement and cure is not possible; or, if neither termination nor cure are feasible, Covered Entity shall report the violation to the Secretary.
3. Effect of Termination.

1. Except as provided in paragraph ii. of this Section 5.c., upon termination of this Agreement, for any reason, Business Associate shall return or destroy all Protected Health Information received from Covered Entity, or created or received by Business Associate on behalf of Covered Entity. This provision shall apply to Protected Health Information that is in the possession of subcontractors or agents 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 not feasible, Business Associate shall provide to Covered Entity written notification of the conditions that make return or destruction not feasible. Upon the notification that return or destruction of Protected Health Information is not feasible, 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 not feasible, for so long as Business Associate maintains such Protected Health Information.

6. Indemnity.

1. Business Associate will not indemnify, defend and hold harmless Covered Entity and its employees, directors, shareholders, members, representatives and agents (collectively, the "Indemnitees") from and against any and all claims, obligations, actions, causes of action, suits, debts, judgments, losses, fines, penalties, damages, expenses, liabilities, lawsuits or costs incurred by the Indemnitees which arise or result from a breach of the terms and conditions of this Agreement by Business Associate.
2. Covered Entity assumes full responsibility and risk for all Covered Entity’s users use of the service. Episode Alert, LLC is not liable for any costs, expenses, losses, or damages, either general, special, actual, consequential, or incidental, that Covered Entity may suffer or that some other person may suffer and claim against Covered Entity resulting from the following: use, misuse, or service outage; Covered Entity provided hardware; Covered Entity's actions or activities, whether legal or illegal; the actions or activities of any other Episode Alert, LLC Covered Entity , whether legal or illegal; or any other goods or services provided by Episode Alert, LLC or any of its vendors. All information provided is not a guarantee of coverage. Actual benefits are determined only when the claim is received by Medicare.
3. If Covered Entity's state laws prevent Covered Entity from taking full responsibility for Covered Entity's use of the service, Episode Alert, LLC liability is limited to the greatest extent allowed by law. In any event, Episode Alert, LLC liability to Covered Entity under this Agreement or in relation to any matter in any way connected with this Agreement, for any and all types of damages, in no event shall exceed the amount of service fees that Covered Entity has paid to Episode Alert, LLC in the year preceding Covered Entity's notice of any claim to Episode Alert, LLC, or the affected period, whichever is greater.
4. NOTWITHSTANDING ANY OTHER PROVISION HEREOF, Episode Alert, LLC SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOST PROFITS, LOST REVENUES, LOSS OF GOODWILL, LOSS OF ANTICIPATED SAVINGS, LOSS OF COVERED ENTITY’S, LOSS OF DATA, INTERFERENCE WITH BUSINESS OR COST OF PURCHASING REPLACEMENT SERVICES) ARISING OUT OF THE PERFORMANCE OR FAILURE TO PERFORM UNDER ANY COVERED ENTITY ORDER OR THESE TERMS AND CONDITIONS INCLUDING BUT NOT LIMITED THOSE ARISING FROM Episode Alert’s FAILURE TO MEET AN DELIVERY DATE (EXPEDITED OR OTHERWISE) REGARDLESS OF WHETHER Episode Alert HAS BEEN INFORMED OF THE POSSIBILITY OF THE LIKELIHOOD OF SUCH DAMAGES.

7. Miscellaneous.

1. Regulatory References. A reference in this Agreement to a section in the Privacy Rule means the section as in effect or as amended, and for which compliance is required.
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 to comply with the requirements of the Privacy Rule and HIPAA.
3. Survival. The respective rights and obligations of Business Associate under Section 5.c. of this Agreement shall survive the termination of this Agreement.
4. Interpretation. Any ambiguity in this Agreement shall be resolved in favor of a meaning that permits Covered Entity to comply with the Privacy Rule.
5. LIMITATION OF LIABILITY. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES OF ANY KIND OR NATURE.