TERMS OF SERVICE

Effective Date: September 10, 2020

These Terms of Service (“Terms”) govern your use of AIM EMS Software & Services Billing Services (the “Services,” as defined hereinafter) and is incorporated into the “Billing Services Sales Agreement”, between you (also “Client” as defined therein) and RAM Software Services, Inc. dba: AIM EMS Software & Services, (also “AIM”, “we”, “our” or “us”). These Terms are thus part of agreement between you and AIM with respect to any Software used or Services you opt into or otherwise use that are governed by these Terms. “Terms” shall refer to these Terms of Service, while “Agreement” shall refer to the “Billing Services Sales Agreement” including these Terms of Service.

By using the Software or Services, you: (1) acknowledge that you have read and understand these Terms; (2) agree to be bound by them in their entirety and to bind Client to same, and (3) acknowledge that Client has entered into a legally binding Agreement with us,

IF YOU DO NOT AGREE TO ALL OF THESE TERMS, DO NOT USE THE SOFTWARE OR SERVICES. YOUR USE OF OUR SOFTWARE AND SERVICES REQUIRES YOUR ACCEPTANCE OF THESE TERMS AS THEY MAY BE AMENDED FROM TIME TO TIME, INCLUDING THE POLICIES INCORPORATED BY REFERENCE HEREIN.

1. Electronic Notices and Disclosures. You acknowledge and agree that AIM may provide notices and other disclosures to you, required by these Terms, any other agreement, or law, electronically by posting such notices or other disclosures on AIM’s website or by emailing it to you at any email address provided to AIM by you. Such notices or other disclosures shall be considered received by you following the posting on the website or twenty-four (24) hours following the email being sent to you, as applicable. Any such electronic notice or other disclosure shall have the same effect and meaning as if it had been provided to you as a paper copy.

2. Changes to the Terms. It is understood that and agreed that these Terms and Conditions are subject to periodic modification. It is agreed that AIM may add to, change or remove any part of these Terms, at any time without prior notice to you other than listing of a later effective date than the one set forth at the top of these Terms. Such modification shall be effective immediately upon posting on AIM’s website at https://aim-system.com/serviceterms. As your next use of the Software or use of the Services may be governed by different Terms, we encourage you to look for a new effective date on these Terms when you utilize AIM’s services. It is your responsibility to check these Terms periodically for changes.

If we make any material changes to these Terms, Client may object to the change by notifying AIM in writing of such objection. AIM shall have the option, assuming other resolution is impossible, to continue servicing Client under the prior version of these Terms or to terminate the Agreement. Further, the parties understand and agree that this Agreement may require amendment from time to time, if, and to the extent required by the Health Insurance Portability and Accountability Act of 1996 ("HIPAA") and regulations promulgated thereunder, in order to assure that this Agreement is consistent therewith Your use or continued use of the Software or Services following the posting or notice of any changes to these Terms or any other posted policies shall constitute your acceptance of the changed Terms or policies.

3. Services. In consideration of the payments pursuant to Section 4 of the Agreement and other promises contained herein, AIM agrees to provide the services set forth in Exhibit A to the Agreement(which shall be the “Services” as used elsewhere in these Terms of Service as well as the Billing Services Sales Agreement) to or on behalf of Client”

1. Notwithstanding anything in this Agreement or any understanding of the parties to the contrary, AIM will not be responsible for the following:
   1. Negotiating any checks made payable to Client, though AIM may receive funds as an agent of Client for transmittal to Client or for deposit on account of Client
   2. Accepting reassignment of any benefits payable to Client;
   3. Providing legal advice or legal services to Client, any of Client's patients or payors, or anyone acting on Client's behalf;
   4. Providing collection agency services or filing or pursuing legal actions for payments due to Client, although AIM may forward collection accounts to a collection agent of Client's choosing at Client's expense;
   5. Monitoring the actuarial soundness of Client's membership or subscription program; or
   6. Invoicing for Client's non-ambulance medical transportation services, including but not limited to wheelchair van, invalid coach services, litter vans and stretcher cars, unless specific arrangements are made otherwise.

4. Compensation

1. Client agrees to pay all compensation, in the full amounts and on the schedule set forth in the Sales Agreement and the Exhibits thereto, plus AIM 's reasonable out-of-pocket expenses incurred in the course of providing the Services, i.e. travel expenses, consulting fees, training fees etc.:
2. If the Client engages AIM to perform, and if AIM agrees to provide, any services that are not included in the Services as defined in Exhibit A to the Sales Agreement, Client agrees to pay AIM at AIM 's standard time and materials rates for those ‘additional’ services unless otherwise agreed upon by the parties in writing prior to AIM 's commencement of such additional services.
3. Amounts due under this Agreement are due and payable not later than thirty (30) days following the date of AIM 's invoice. All amounts unpaid for more than thirty (30) days following the date of invoice will be subject to an interest charge at a monthly rate of the lesser of the maximum amount allowable by the law of the state in which Client is located or one and one-half percent (1.5%). AIM may increase fees annually.
4. All fees pursuant to this Agreement are exclusive of any applicable taxes and tariffs, and Client will be solely responsible for, and will indemnify and hold AIM harmless against, all applicable sales, use, property and any other federal, state or local taxes whatsoever relating to any goods and services provided under this Agreement (other than those directly imposed on AIM 's income). In the event AIM determines that it is required to withhold, report or pay any such taxes, AIM will invoice Client for, and Client will pay, all such amounts in addition to the amounts otherwise due under this Agreement. AIM is not responsible for Client’s compliance with and/or payment of any federal, state or local taxes or regulations.
5. Invoicing. AIM will invoice Client on an approximately monthly basis; additional invoices (for items such as expenses; new, one-off, or non-standard services; or taxes, charges, or fees) may be submitted at such time as AIM determines in its discretion. All invoices are payable within 30 days of the invoice date. Invoices may be delivered electronically, by mail, or by other acceptable form of notice hereunder. Any challenge to the accuracy of any invoice or the propriety or amount of any charge thereupon must be made in writing within ninety (90) days of the invoice date or such challenge or objection is conclusively and permanently waived.

 

5. Client’s Responsibilities. During the term of this Agreement, Client agrees to use AIM as its sole and exclusive provider for account receivable billing and for the Services as defined herein. Client agrees to pay all financial obligations to AIM, including those set forth in the preceding Section 4 and those set forth in the Sales Agreement and the exhibits thereto. Notwithstanding the foregoing obligations, in the event that, during the term of this Agreement, Customer may choose to perform all or some of its own billing and/or may hire a third party to perform all or some of its billing; may choose to assign all or part of AIM’s duties hereunder to Client itself or any third party; and/or may otherwise cease to submit some or all of its billings through AIM, such shall not relieve Client of any of its other obligations under this Agreement, including specifically its obligation to pay the entire fee due and owing to AIM throughout the term of this Agreement. AIM’s fee is calculated based upon the total receipts of the Client whether or not any particular receipt or income is obtained by or through any efforts of AIM.

 

6. Term and Termination.

1. The term of this Agreement shall include both the Initial Term and any Renewal Term(s) as defined in the Sales Agreement.
2. Either party may terminate this Agreement by providing the other party written notice of same at least sixty (60) days prior to the conclusion of any term (whether the Initial Term or any Renewal Term); the effective date of any such termination shall be the last day of the then-current term when the notice is provided.
3. In the event this Agreement is terminated pursuant to Subsection 6.2 AIM will continue to perform the Services following the effective date of termination for all open accounts opened during the term of this Agreement following the normal collection schedules and in consideration of the same compensation. In the event this Agreement is terminated pursuant to Subsection 7.12, below, or for any other reason or cause, AIM will have no continuing obligation to perform any Services whatsoever following the effective date of termination of this Agreement, although AIM may, at its option, elect to perform the Services following the effective date of termination for all open accounts opened during the term of this Agreement following the normal collection schedules and in consideration of the same compensation. In any case, Client will continue to pay AIM its Processing Charge (as described in the Agreement and in particular Exhibit A thereto with respect to all sums received, plus any costs actually incurred by AIM relating to any and all accounts open during the term of this Agreement whenever payment for same may be received (and even after termination of this agreement). Client will continue to pay to AIM all amounts due AIM for claims processed by AIM and/or pursuant to this Agreement.

 

7. Events of Default. Each of the following, set forth in Subsection 7.1 through 7.10 is an "Event of Default" under this Agreement upon its occurrence:

1. If at any point Client fails to make, in full, any and all payments due to AIM at or, before the time required by this Agreement and/or any invoice or request properly made by AIM, such shall be a default under this Agreement without any notice, prior or contemporaneous. In the event such default shall continue for a period of 30 days or more, AIM may at its option, without requirement of any prior or contemporaneous notice, suspend service to Client. Such suspension of service may occur at any point on or after the 30^th day of such default, and failure to suspend service to a Client shall not constitute a waiver of the right to suspend service to the Client during the same default or subsequent defaults. Neither suspension of nor failure to suspend service to Client shall limit AIM’s rights, remedies, or recovery under this Agreement or applicable law. The remedies in this subsection are cumulative with and additional to the other remedies available to AIM under this Agreement or applicable law.
2. If Client fails to take prompt reasonable action upon notification by AIM of a potential violation of applicable laws, rules or regulations;
3. If Client repeatedly fails to timely or appropriately respond to AIM 's requests for information required to perform Services;
4. If Client fails to timely report payments made directly to Client;
5. If Client revokes or otherwise rescinds the applicable carrier or insurer source code required by AIM to perform Services or causes such source code to be revoked or otherwise rescinded;
6. If either party fails to maintain its required licenses, permits or certifications necessary to do business;
7. If either party is excluded from any Medicare or Medicaid programs or is convicted of a criminal offense related to any federal or state health care program;
8. If either party (i) admits in writing its inability to pay its debts generally as they become due, or (ii) files a petition to be adjudicated a voluntary bankrupt in bankruptcy or a similar petition under any insolvency act, or (iii) makes an assignment for the benefit of its creditors, or (iv) consents to the appointment of a receiver of itself or of the whole or any substantial part of its property; or
9. If any of the representations and warranties of either party as set forth in this Agreement is false or misleading in any material respect.
10. If either party shall, otherwise than as specified in the preceding subsections, materially breach, materially default, or otherwise fail to perform any material obligation owed under the Sales Agreement or these Terms and Conditions, and if and only if such persists, uncured, for a period of 30 days after the non-defaulting party gives written notice of the breach/default/failure, the non-defaulting party may in such case declare such a default or breach of this Agreement.
11. Notice and Cure. Except in the case of defaults under Subsections 7.1, 7.8, and/or 7.10, above, no default or breach may be declared, no default or breach of this Agreement shall have occurred, and no remedies for breach or default (including those under the following subparagraph) shall be available except, unless, and until: a) the non-defaulting shall have provided written notice to the defaulting party of “Event of Default,” and b) the defaulting party does not cure such “Event of Default” to the non-defaulting party's reasonable satisfaction within such ten (10) day period.
12. Termination/remedies. In addition to and without limitation of any other remedies available under the law, in the case of a default or breach of this Agreement, the non-defaulting party may 1) terminate this Agreement by written notice of such election (effective upon the date of such notice or such later date as non-defaulting party may choose) and/or 2) commence suit or take other action for the recovery of sums due, all damages available under the law, or other relief. Nothing herein shall be construed as limiting the rights or remedies available to AIM in the event of a default. AIM shall be entitled to recover its reasonable attorney fees and collection costs in the event it brings any successful action for damages under this Agreement.
13. Notwithstanding any other provisions of this Agreement to the contrary, AIM may, in its sole discretion, temporarily suspend its obligations under this Agreement and the performance of the Services upon an Event of Default by Client until such time as Client cures the default.
14. In the case of any Event of Default, suspension of services (including but not limited to those under Subsections 7.1, 7.12, and/or 7.13), or termination, AIM may, in its sole discretion and option, cancel, withdraw, suspend, or otherwise shut off or prevent access to all software, programs, web portals, websites, and applications that are used or for which access is provided in connection with the provision of services hereunder, including any and all AIM System products, as well as Automatic Fax Service if applicable. AIM make take such measures as it may, in its discretion, deem reasonably necessary to effectuate this remedy.

8. Method of Performing Services; Independent Contractor. AIM will have the right to determine the method, details, and means of performing the Ser Client will, however, be entitled to exercise general power of supervision and control over the results of work performed by AIM to assure satisfactory performance, including the right to inspect, the right to stop work, the right to make suggestions or recommendations as to the details of the work, and the right to propose modifications to the work. It is acknowledged and agreed that AIM is an independent contractor, and AIM 's employees will not be considered the employees of Client and Client's employees will not be considered the employees of AIM, within the meaning or the application of any federal, state or local laws, rules or regulations, including, but not limited to, laws, rules or regulations covering unemployment insurance, social security benefits, workers' compensation insurance, industrial accidents, labor or taxes of any kind.

 

9. Warranties

1. Client represents, warrants and covenants that at all times during the term of this Agreement: (1) Client will possess and maintain all required licenses, certifications and permits necessary to do business; (2) Client will possess and maintain a valid Medicare and Medical Assistance provider number(s); (3) Client will remain in good standing with all state and federal agencies, and Client is not currently the subject of any investigations or actions by any such agency; (4) Client is not and will not be excluded or subject to exclusion from any state and/or federal health care program; and (5) Client will at all times comply with all applicable state and federal laws and regulations pertaining to billing for its services.
2. AIM represents, warrants and covenants that at all times during the term of this Agreement: (1) it is not the subject of any actions or investigations pertaining to its participation in any state or federal health care program, (2) it is not excluded or subject to exclusion from any state or federal health care program, and (3) it is in good standing with all state and federal agencies pertaining to the services it provides.
3. AIM hereby disclaims, with Client’s consent and agreement, any and all other warranties, express or implied, relating to its services or products, including any putative warranties of merchantability or suitability for particular purpose.

10. Confidentiality. Throughout the term of this Agreement and for a period of five (5) years from the effective expiration or termination date of this Agreement, each party will use reasonable efforts to prevent the disclosure to any person, firm or corporation (other than its own personnel and any contractors, advisors, representatives or consultants who are bound to maintain information in confidence) of any nonpublic and confidential information received from the other party that is marked confidential or the like. For purposes of this Section, a party will be deemed to have used "reasonable efforts" if it uses the same degree of care to avoid disclosure of such information as it employs with respect to its own proprietary information of like importance, but in no event less than the standard of care a reasonably prudent person would take to protect such information. For purposes of this Agreement, confidential information will not include any information that: (a) at the time of disclosure is generally known to the public; (b) after such disclosure, becomes known to the public through no violation of this Agreement; (c) as shown by written records, was in the possession of the receiving party prior to such disclosure by the disclosing party; or (d) after such disclosure as contemplated by this Agreement, is disclosed to the receiving party by a third party that is not under an obligation to maintain the confidentiality of the information.

 

11. Compliance with Law: It is AIM 's intent to comply with all federal and state standards regarding the billing of medical services and to mitigate fraud and abuse and submission of false claims. Further, AIM is committed to enhancing compliance with law by Client. Accordingly, Client will comply with recommendations of AIM regarding the proper classification of various transports provided by Client and billing services rendered by AIM. In the event that the regulation or guidance is unclear as to proper billing in a given situation or if there is a disagreement between AIM and Client concerning the proper classification and billing of services, if a review process is available, Client will submit the issue to review by the applicable governmental payor or other third party payor within thirty (30) days of the unclear situation or disagreement and the parties will be bound by the decision of the payor. For non-governmental payors, if no such review process is available, AIM will follow Client's instructions, and Client will hold AIM harmless from any loss or liability arising from following Client's instructions on such disputed items. With respect to governmental payers, if Client fails to submit the issue for review, or if Client fails to abide by the decision of the payor, AIM may terminate this Agreement effective immediately and without further notice in accordance with Section 6. Further, AIM will refuse to bill for services inappropriately or insufficiently documented or in the event of evidence of other misconduct, including but not limited to, evidence of overpayments and failure to repay. In the event evidence of any such misconduct continues, AIM may terminate this Agreement as above provided. AIM is not a guarantor or insurer of Client’s compliance with any governmental standards, laws or regulations, and AIM is not responsible for same.

12. LIMITATION OF LIABILITY, ETC.

1. AIM 'S MAXIMUM LIABILITY FOR DAMAGES FOR ANY CAUSE WHATSOEVER ARISING OUT OF THIS AGREEMENT, REGARDLESS OF THE MANNER IN WHICH CLAIMED OR THE FORM OF ACTION ALLEGED, IS LIMITED TO THE AMOUNTS PAID TO AIM BY CLIENT UNDER THE TERMS OF THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRIOR TO THE OCCURRENCE OF THE FIRST EVENT GIVING RISE TO SUCH LIABILITY. AIM 'S WARRANTIES SET FORTH HEREIN SHALL BE IN LIEU OF ALL OTHERS, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WHICH ARE HEREBY EXCLUDED. IN NO EVENT SHALL AIM BE LIABLE FOR LOSS OF PROFITS OR FOR INCIDENTAL, INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF ANY BREACH OF THIS AGREEMENT, REGARDLESS OF WHETHER THE POSSIBILITY OF SUCH DAMAGES HAS BEEN COMMUNICATED TO AIM AND REGARDLESS OF WHETHER AIM HAS OR GAINS KNOWLEDGE OF THE EXISTENCE OF SUCH DAMAGES.
2. Client shall have no rights, claims, or causes of action against any individual employee, officer, director, or other person affiliated or connected with AIM on account of or arising from such relationship, this Agreement, and/or any services performed or required in connection herewith. Rather Client’s sole remedy for any claim or cause of action relating to this Agreement and/or any services performed or required in connection herewith shall be against AIM and shall be subject to the other limitations of liability set forth in these Terms.
3. This Agreement (including these Terms and Conditions) and the performance of Services hereunder shall not create a fiduciary relationship or create or give rise to any fiduciary obligations or duties between the parties.

13. Protection Of Health Information.

1. If, and to the extent, and so long as required by law and not otherwise, AIM does hereby assure Client that AIM will appropriately safeguard Protected Health Information, as such term is defined in 45 C.F.R. 164.500, 164.502 ("PHI") made available to or obtained by AIM under the terms of this Agreement. In implementation of such assurance and without limiting the obligations of AIM otherwise set forth in this Agreement or imposed by applicable law, AIM hereby agrees to comply with applicable requirements of law relating to PHI and with respect to any task or other activity AIM performs on behalf of Client, to the extent Client would be required to comply with such requirements.
2. To amplify and not limit the foregoing, AIM agrees that AIM will:
   • Not use or further disclose protected health information other than as permitted or required by this Agreement;
   • Not use or further disclose the information in a manner that would violate the requirements of applicable law, if done by Client;
   • Use appropriate safeguards to prevent use or disclosure of such information other than as provided for by this Agreement;
   • Report to Client any use or disclosure of such information not provided for by this Agreement of which AIM becomes aware;
   • Report to Client any disclosure of information for which an accounting must be made to an individual pursuant to applicable law;
   • Ensure that any subcontractors or agents to whom AIM provides PHI received from Client agree to the same restrictions and conditions that apply to AIM with respect to such information;
   • Make available PHI in accordance with applicable law;
   • Make AIM 's internal practices, books, and records relating to the use and disclosure of PHI received from Client available to the Secretary of Health and Human Services for purposes of determining Client's compliance with applicable law in all events notifying Client of any such request or inquiry;
   • At termination of this Agreement, if feasible, return or destroy all PHI received from Client that AIM still maintains in any form and retain no copies of such information or if such return or destruction is not feasible, extend the protections of this Agreement to the information not returned or destroyed; and
   • Incorporate any amendments or corrections to PHI when notified pursuant to applicable law.

14. GENERAL TERMS.

1. Regulatory Changes. The parties recognize that this Agreement is at all times subject to applicable state, local, and federal laws and will be construed accordingly. The parties further recognize that this Agreement may become subject to or be affected by amendments in such laws and regulations or to new legislation or regulations. Any provisions of law that invalidate, or are otherwise inconsistent with, the material terms and conditions of this Agreement, or that would cause one or both of the parties hereto to be in violation of law, will be deemed to have superseded the terms of this Agreement. In such event, where possible, the newly violative provision shall be severed from the remaining Agreement and automatically stricken; otherwise, AIM may modify the terms of this Agreement to comply with the change in law or regulation, and Client agrees to reasonably cooperate with same. The parties agree to utilize their best efforts preserve and effectuate the purposes and intent of this Agreement consistently with the requirements of such changing law(s) and/or regulation(s) In the event that any laws or regulations would make such amendment or modification of this Agreement impossible or futile and render performance by either party illegal or impossible for any reason, either party may terminate the Agreement as of the effective date of such laws or regulations.
2. Non-Solicitation. During the term of this Agreement and for a period of one (1) year thereafter, neither party will solicit the employment of any of the other party's employees or former employees who are then currently or have previously been materially involved in the performance of Services under this Agreement, unless otherwise mutually agreed in writing. This provision will not apply or restrict in any way either party's solicitation of employees by means of general advertising, including without limitation, through media, trade publications or other general circulation resources.
3. Data Retention: Upon termination of service and winding up of any and all ongoing service on open accounts, a former customer’s data is archived and retained for (ninety) 90 days. This archive uses the same level of security as current customers. Customer data means any data that is uploaded, submitted, posted, and transmitted through the hosted services.
4. Governing Law. This Agreement, its administration and performance, and the rights, obligations, liabilities, and responsibilities of the parties hereto, will be governed and interpreted in accordance with the laws of the Commonwealth of Pennsylvania, without reference to the conflicts of law principles of that or any other jurisdiction. Venue for any and all disputes of this matter shall be lie in Allegheny County, Pennsylvania.
5. Notices. All notices required to be sent hereunder will be in writing and will be deemed to have been given when mailed by first class mail, postage prepaid, certified or registered, return receipt requested, or by nationally recognized overnight courier, to the parties at the addresses first set forth below, or at such other address as the applicable party may designate in writing.
6. Conflict. In the event of conflict between the terms and conditions of this Agreement and the terms and conditions of any purchase order issued by Client, whether issued prior or subsequent to the date of this Agreement, and regardless of any statement to any other effect in any such purchase order, the terms and conditions of this Agreement will control, and AIM objects to any additional terms or conditions that may be included in any such purchase order.
7. Relationship Between Parties. In all matters relating to this Agreement, Client and AIM will act as independent contractors. The relationship between AIM and Client is that of licensor/Client. Neither party will represent that it has any authority to assume or create any obligation, express or implied on behalf of the other party, nor to represent the other party as agent, employee, franchisee or in any other capacity.
8. Force Majeure. Neither party will be liable to the other for failure or delay in the performance of a required obligation if such failure or delay is caused by war, terrorism, Act of God, strike, riot, fire, flood, natural disaster, epidemic or pandemic or other similar cause beyond such party's reasonable control; provided, however, that such party gives prompt written notice of such condition and resumes its performance as soon as possible; and provided further, that the other party may terminate this Agreement if such condition continues for a period of one hundred eighty (180) days.
9. Parties Bound; Assignment. This Agreement becomes effective and binding only as of the date the Billing Agreement executed by both parties, with subsequent versions of these Terms of Service being incorporated therein and part of the Parties’ Agreement upon the specified Effective Date of these Terms of Service. The Agreement, together with its Terms, may be assigned by AIM but may not be assigned by Client. The Agreement and these Terms shall be binding upon the heirs, successors, assigns, and transferees of the respective Parties hereto and shall survive and be binding upon the purchaser/transferee in the case of any purchase or transfer of all or a substantial portion of the assets of Client
10. Waiver. The waiver by either party of any default or breach of this Agreement will not constitute a waiver of any other or subsequent default or breach. No act, delay or omission on the part AIM will be deemed a waiver of any right unless expressly made in writing.
11. Entire Agreement; Amendment. The Agreement, including the Terms & Conditions, constitutes the complete agreement between the parties and supersedes all prior or contemporaneous agreements or representations, written or oral, concerning the subject matter of the Agreement.
12. Survival: The following provisions shall survive termination of this Agreement: 4.2; 4.3; 4.4; 4.5; 6.3; 9.3, 10, 12, 13, 14.2; 14.3; 14.4; 14.5; 14.6; 14.7; 14.9; 14.10.
13. Severability. The provisions of this Agreement are severable and if any one or more of the provisions hereof are judicially determined to be illegal or otherwise unenforceable, in whole or in part, the remaining provisions of this Agreement will nevertheless be binding upon and enforceable by and between the parties hereto.
14. Headings. The headings in this Agreement are for purposes of convenience only and will not limit or otherwise affect the terms or provisions hereof

EXHIBIT B

Business Associate Agreement

 

This Business Associate Agreement (this “Agreement”) is entered into between you the Covered Entity and RAM Software Services, Inc., dba AIM EMS Software & Services (also “AIM”, “we”, “our” or “us”) with an Effective Date set forth on the Sales Agreement. This Agreement sets out the responsibilities and obligations of Business Associate as a business associate of Covered Entity under the Health Insurance Portability and Accountability Act (“HIPAA”) and the Health Information Technology for Economic and Clinical Health Act (“HITECH Act”).  

RECITALS:

 

1. Business Associate provides software and services (“Services”) to Covered Entity for the purpose of conducting electronic business with   other   companies   including   health   care   payers   and clearinghouses.
2. Covered Entity may make available and/or transfer to Business Associate Protected Health Information (“PHI”) of Individuals in conjunction with Services, which Business Associate will Use or Disclose only in accordance with this Agreement.

AGREEMENT:  Business Associate and Covered Entity agree to the terms and conditions of this Agreement in order to comply with the rules on handling of Protected Health Information (“PHI”) under the HIPAA Standards for Privacy of Individually Identifiable Health Information, 45 C.F.R. Part 160 and Part 164, Subpart E (“Privacy Standards”), the HIPAA Security Standards, 45 C.F.R. Part 160 and Part 164, Subpart C (“Security Standards”), and the HIPAA Breach Notification Regulations, 45 C.F.R. Part 164, Subpart D (“Breach Notification Regulations”), all as amended from time to time.  

 

1. DEFINITIONS
   1. Terms Defined in Regulation: Unless otherwise provided, all capitalized terms in this Agreement will have the same meaning as provided under the Privacy Standards, the Security Standards and the Breach Notification Regulations.
   2. Protected Health Information or PHI: Protected Health Information or PHI, as defined by the Privacy Standards, for this Agreement means PHI that is received or created on behalf of Covered Entity by Business Associate. 
2. USES AND DISCLOSURES OF PROTECTED HEALTH INFORMATION
   1. Performance of Services: Business Associate will Use or Disclose PHI only for those purposes necessary to perform Services, or as otherwise expressly permitted in this Agreement or required by law, and will not further Use or Disclose such PHI.
   2. Subcontractor or Agent Performance of Services: Business Associate agrees that anytime it provides PHI to a subcontractor or agent to perform Services for Covered Entity, Business Associate first will enter into a contract or confidentiality agreement with such subcontractor or agent that contains the same terms, conditions, and restrictions on the Use and Disclosure of PHI as contained in this Agreement.
   3. Business Associate Management, Administration and Legal Responsibilities: Business Associate may Use or Disclose PHI for Business Associate’s management and administration, or to carry out Business Associate’s   legal responsibilities. Business Associate may Disclose PHI received from Covered Entity to a third party for such purposes only if: (i) the Disclosure is required by law; or (ii) Business Associate secures written assurance from the receiving party that the receiving party will:
   4. Hold the PHI confidentially;
   5. Use or Disclose the PHI only as required by law or for the purposes for which it was Disclosed to the recipient; and
   6. Notify the Business Associate of any other Use or Disclosure of PHI.
   7. Data Aggregation: Business Associate may Use PHI to perform data aggregation services as permitted by 45 CFR §164.504(e)(2)(i)(B).
3. SAFEGUARDS FOR PROTECTED HEALTH INFORMATION
   1. Adequate Safeguards: Business Associate will implement and maintain appropriate safeguards to prevent any Use or Disclosure of PHI for purposes other than those permitted by this Agreement, including administrative, physical and technical safeguards to protect the confidentiality, integrity, and availability of any electronic protected health information (“ePHI”), if any, that Business Associate creates, receives, maintains, and transmits on behalf of Covered Entity.
   2. Compliance with HIPAA Security Standards: Business Associate will comply with 45 C.F.R. §§ 164.308, 164.310, 164.312 and 164.316, as of the date by which Business Associate is required to comply with such regulations.
4. REPORTS OF IMPROPER USE OR DISCLOSURE OF PROTECTED HEALTH INFORMATION, SECURITY INCIDENTS AND BREACHES
   1. Use or Disclosure Not Permitted by This Agreement: Business Associate will report in writing to Covered Entity any Use or Disclosure of PHI for purposes other than those permitted by this Agreement within 10 business days of Business Associate’s learning of such Use or Disclosure.
   2. Security Incidents: Business Associate will report to Covered Entity any successful Security Incident of which Business Associate becomes aware within 10 business days of Business Associate learning of such Security Incident. 
   3. Breaches of Unsecured PHI: Business Associate will report in writing to Covered Entity any Breach of Unsecured Protected Health Information, as defined in the Breach Notification Regulations, within 10 business days of the date Business Associate learns of the incident giving rise to the Breach. Business Associate will provide such information to Covered Entity as required in the Breach Notification Regulations. 
5. COVERED ENTITY ACCESS TO PROTECTED HEALTH INFORMATION
   Upon request, Business Associate will make available to Covered Entity PHI maintained in a Designated Record Set in Business Associate’s possession so that Covered Entity can respond to individual requests for access to PHI.
6. AMENDMENT OF PROTECTED HEALTH INFORMATION
   Within 10 business days of receiving a request from Covered Entity to amend an Individual’s PHI, Business Associate will incorporate such amendment into the PHI held by Business Associate.
7. ACCOUNTING OF DISCLOSURES OF PROTECTED HEALTH INFORMATION
   1. Disclosure Records: Business Associate will keep a record of any Disclosure of PHI that Business Associate makes to its agents, subcontractors or other third parties, if Covered Entity is required to provide an accounting to Individuals of such Disclosures under 45 C.F.R. § 164.528. Business Associate will maintain its record of such Disclosures for six years from the termination of this Agreement.
   2. Data Regarding Disclosures: For each Disclosure for which it is required to keep a record under paragraph 7(a), Business Associate will record and maintain the following information: (i) the date of Disclosure; (ii) the name of the entity or person who received the PHI and the address of such entity or person, if known; (iii) a description of the PHI Disclosed; and (iv) a brief statement of the purpose of the Disclosure.
   3. Provision to Covered Entity: Within 10 business days of receiving a notice from Covered Entity, Business Associate will provide to Covered Entity its Disclosure records.
8. ACCESS TO BOOKS AND RECORDS
   Business Associate will make its internal practices, books and records on the Use and Disclosure of PHI available to the Secretary of the Department of Health and Human Services to the extent required for determining compliance with the Privacy Standards, Security Standards, or Breach Notification Regulations. Notwithstanding this provision, no attorney-­‐client, accountant-­‐ client or other legal privilege will be deemed waived by Business Associate or Covered Entity as a result of this Section
9. TERMINATION
   1. Covered Entity may terminate this Agreement upon written notice to Business Associate if Covered Entity determines that the Business Associate or its subcontractors or agents has breached a material term of this Agreement. Covered Entity will provide Business Associate with written notice of the breach of this Agreement and afford Business Associate the opportunity to cure the breach within 30 days of the date of such notice. If Business Associate or its subcontractors or agents fail to timely cure the breach, Covered Entity may terminate this Agreement.
   2. Either party may terminate this Agreement without cause by providing 60 days written notice to the other party.
10. DESTRUCTION OF PROTECTED HEALTH INFORMATION
    1. Return of PHI Is Infeasible. It is not feasible for Business Associate to return PHI received from, or created or received by Business Associate on behalf of Covered Entity. Therefore, except as stated in subsection (b), below, within 90 days of termination of this Agreement, Business Associate will destroy all PHI received from, or created or received by Business Associate on behalf of Covered Entity that Business Associate maintains in any form or format and retain no copies of the PHI. This Agreement constitutes Covered Entity’s written consent for Business Associate to destroy all such PHI.
    2. Retention of PHI if Destruction Is Infeasible. If Business Associate believes that destroying PHI at the termination of this Agreement is infeasible, it will keep the PHI but will extend all protections of this Agreement to Business Associate’s Use or Disclosure of PHI retained after termination of this Agreement and will limit further Uses or Disclosures to those purposes that make the destruction of the PHI infeasible.
    3. Survival. This Section survives termination of this Agreement.
11. COMPLIANCE WITH HITECH ACT AND REGULATIONS
    Business associate will comply with the requirements of Title XII, Subtitle D of the Health Information Technology for Economic and Clinical Health (HITECH) Act, codified at 42 U.S.C. §§ 17921-­‐17954, which are applicable to Business Associate, and will comply with all regulations issued by the Department of Health and Human Services (HHS) to implement these referenced statutes, as of the date by which Business Associate is required to comply with such referenced statutes and HHS regulations.
12. MISCELLANEOUS
    1. COMPLIANCE WITH LAWS: The parties are required to comply with federal and state laws. If this Agreement must be amended to secure such compliance, the parties will meet in good faith to agree upon such amendments. If the parties cannot agree upon such amendments, then either party may terminate this Agreement upon 30 days’ written notice to the other party.
    2. CONSTRUCTION OF TERMS: The terms of this Agreement will be construed in light of any applicable interpretation or guidance on the Privacy Standards, Security Standards or Breach Notification Regulations issued by the Department of Health and Human Services.
    3. NO THIRD-PARTY BENEFICIARIES: Nothing in this Agreement will confer upon any person other than the parties and their respective successors or assigns, any rights, remedies, obligations, or liabilities whatsoever.
    4. NOTICES: All notices required under the Agreement will be given in writing and will be delivered through: (i) secure electronic messaging system with capability of confirming receipt, (ii) by personal service, (iii) by first class mail, or (iv) by messenger or courier. Notices given through a secure electronic messaging system will be deemed given on the date the Covered Entity receives the electronic message. Notices given by mail will be deemed for all purposes to have been given forty-­‐eight hours after deposit with the United States Postal Service. Notices delivered by personal service or messenger courier will be deemed to have been given upon actual delivery.
    5. ENTIRE AGREEMENT: This Agreement constitutes the entire agreement between the parties with regard to the Privacy Standards, Security Standards and Breach Notification Regulations, there are no understandings or agreements relating to this Agreement that are not fully expressed in this Agreement and no change, waiver or discharge of obligations arising under this Agreement will be valid unless in writing and executed by the party against whom such change, waiver or discharge is sought to be enforced.
    6. COUNTERPARTS AND SIGNATURE: This Agreement may be executed in two or more counterparts, each of which shall be deemed an original and when taken together shall constitute one agreement. Facsimile and electronic signatures shall be deemed to be original signatures for all purposes of this Agreement.
    7. CHOICE OF LAW: The validity, construction and effect of this Agreement will be governed by the laws of the State of Pennsylvania, without giving effect to that state’s conflict of laws rules. Any Dispute will be resolved in a forum located in the State of Pennsylvania.