Software Terms of Service

Effective Date: September 10, 2020

These Terms of Service (“Terms”) govern your use of AIM EMS Software & Services (the “Services,” as defined hereinafter) and is incorporated into the “Software Sales Agreement”, between you (also “Client” as defined therein) and RAM Software Systems, 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 “Software Sales Agreement” including these Terms of Service.

These Terms apply to the business or entity who engaged AIM, identified as and “Client” in the Software Sales Agreement, as well as all natural persons who access and/or use the Applications. The term “you” and the term “Client” as used herein thus refer to the natural person(s) using or accessing the Applications (“Personal User”), the business or other legal entity such Personal User represents (“Business User”), and, if different, the business or entity that executed the Software Sales Agreement. If you are using the Software or Services on behalf of a company or other legal entity (i.e. a Business User), you hereby represent and warrant that you have the authority to enter into these Terms on behalf of the Business User.

Notwithstanding the foregoing as to any Business User that has an existing written agreement with us executed prior to September 10, 2020, to the extent such existing written agreement governs such Business User’s use of the applicable Software/Application and/or Services, and to the extent (and only to the extent) these Terms contradict those of the existing written agreement, it shall be such existing written agreement, rather than these Terms, that control. However, if a Business User accepts or uses additional Services, Modules, Applications, and/or Software not exclusively governed by a such pre-existing written agreement, these Terms shall control with respect to those additional Services, Modules, Applications, and/or Software. To the extent not inconsistent, these Terms shall serve as an amendment to any such existing written agreement and shall become incorporated as part thereof.

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 Business User 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 of Service 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 As your next use of the Software, Application(s) or 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.

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 and access to the Applications as set forth in Exhibit A to the Agreement (which shall collectively be the “Services” as used elsewhere in these Terms of Service unless context makes clear a more narrow usage of “Services”) to or on behalf of Client. As set forth more fully herein (and in the Agreement), only limited, revocable, non-transferable, non-sublicensable, non-exclusive license and right to access the Applications/Software is given to Client.

Notwithstanding anything in this Agreement or any understanding of the parties to the contrary, AIM will not be responsible for the following:
Providing legal advice or legal services to Client, any of Client's patients or payors, or anyone acting on Client's behalf.

4. Compensation

Client agrees to pay all compensation, in the full amounts and on the schedule set forth in the Software 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..
If the Client engages AIM to perform, and if AIM agrees to provide, any services or that are not included in the Services as defined in Exhibit A to the Software 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. If AIM shall provide Client access to additional software/applications software/applications that are not included in Exhibit A to the Software Sales Agreement, Client agrees to pay AIM AIM 's standard rate(s) for ‘additional’ access unless otherwise agreed upon by the parties in writing prior to Client’s use of additional applications.
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.
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.
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.

6. Client’s Responsibilities. During the term of this Agreement, Client agrees to use AIM’s applications and services consistently with the terms, conditions, and obligations set forth in the Agreement and the terms of these Terms of Service and any license agreement, as may exist now or as may come into existence during the Term of this Agreement. Client agrees to pay all financial obligations to AIM, including those set forth in the preceding Section 4 and those set forth in the Software Sales Agreement and the exhibits thereto. Notwithstanding the foregoing obligations, in the event that, during the term of this Agreement, Customer may cease using the Applications or AIM’s services, 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.

Client shall be granted, only during the Term of and in accordance with this Agreement, a limited non-exclusive license for the use AIM’s Software programs, including all related user manuals and documentation, whether provided to you in physical or electronic form, to be exercised only in accordance with the terms and for the duration of this Agreement, and not subject to any sublicensing or further dissemination.
Proprietary Rights. All title in and rights to the AIM Software and Applications (including any copyrights and third-party software embedded in AIM) remains exclusively with AIM. The rights of AIM are protected by local, state, and federal laws and International treaties. Client will not decompile, disassemble or otherwise reverse engineer the Software or any part of any of the Applications. Neither Client nor any other User may, and they agree that they shall not, view or access any source code, nor shall Client nor any User demonstrate, discuss, or provide any information whatsoever concerning the Application, its functionality, or its contents with any unauthorized user, including but not limited to contractors of Client, employees of Client in other department, in-house or third party software developers, or any person whatsoever acting outside the scope of the User’s limited non-exclusive license.
Users. Client agrees and warrants that access to and use of any art of the Applications shall limited to employees or agents acting at the behest and under the control of Client and only for Client’s ordinary business purposes. Such users are authorized by Client to use AIM’s Software/Applications and to bind Client to the terms and obligations of this Agreement and the Terms and Conditions referenced herein. Client shall be responsible for any misuse of the Applications and/or any violation of this Agreement, any licensing Agreement, and/or AIM’s proprietary rights by any User gaining access for, by, and/or through Client or Client’s concurrent licenses, passwords, computers, or access codes. Any and all Users agree, under penalty law of and subject to all available remedies, criminal, civil, and/or otherwise, that they shall not decompile, disassemble or otherwise reverse engineer the Software or any part of any of the Applications. Neither shall any User sell, disseminate, coopt, or use in any other software or application the GUI or other portions of the Applications or their functionality, operating instructions, etc.
Exclusive Customer Service. Customer shall exclusively use AIM for all customer support and service related to the Application, the Software, or any product or service provided by AIM pursuant to the Agreement. Customer Support for all third-party software used to operate as a SAAS provider will be the sole responsibility of Aim.
Business Impacts. Client is accountable for business metrics and related targets, as client has sole authority to make the changes necessary to accomplish the desired business gains.
Communications. Client should work closely with AIM on an ongoing basis to determine priority business goals and impact of the services to ensure AIM meets Client’s needs.
Client Server Software and Hardware. Client will remain accountable for all maintenance and costs associated with their on- and off-site hardware (laptop/remote computers, desktop computers, tablets, smart phones, scanners, local servers, etc.) as well as maintenance and costs for external software. Client will also maintain protection of their own servers and remain accountable for any virus or spyware damage associated with their own servers.
Except for statutorily protected personal healthcare information, your account and any information or data you enter or create is owned by us. With regard to your account, you agree to: (i) keep your password secure and confidential; (ii) not permit others to use your account; (iii) not use the accounts of others; (iv) not transfer your account to another party; and (v) notify us of any actual or suspected unauthorized use of your account. You are responsible for any activity occurring under your account.
Feedback. You may from time to time identify problems and/or solutions to identified problems. You agree that you will promptly inform AIM of such problems and any solutions to improve performance going forward. You agree that failing to report any problem hereunder shall result in and constitute waiver of any claim of breach or default relating to such problem. You acknowledge and agree that all Feedback is and shall be given entirely voluntarily and AIM shall be free to use or disclose such Feedback for any purpose. You further acknowledge and agree that your Feedback does not contain confidential or proprietary information and you are not entitled to any compensation or reimbursement of any kind from AIM under any circumstances relating to such Feedback, nor do you have any intellectual property rights to such Feedback.
You acknowledge and agree that you are solely responsible for protecting your password and other personal information and for the consequences of not protecting such data. Access to our Services and to certain online transactions may involve the use of identification numbers, passwords, payment accounts or other individualized nonpublic information (“Private Documentation”). You shall use your best efforts to prevent unauthorized use of our Applications, Software, and/or Services, your account, or of any Private Documentation, and shall promptly report to AIM any suspected unauthorized use or other breach of security. You shall be responsible for and shall be liable for any unauthorized use of your account, identification numbers or passwords and any injury occasioned to AIM thereby until we receive written notice of a breach of security and a request to block further access for such numbers and passwords. AIM shall not be liable for any unauthorized use of accounts or of Private Documentation.

6. Term and Termination.

The term of this Agreement shall include both the Initial Term and any Renewal Term(s) as defined in the Software Sales Agreement.
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.
In the event this Agreement is terminated, Client will have no right to use or access any software or application and AIM will have no continuing obligation to perform any Services whatsoever following the effective date of termination of this Agreement.

Events of Default.

Each of the following 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;
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 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;
5. If either party fails to maintain its required licenses, permits or certifications necessary to do business;
6. 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;
7. 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;
8. If Client, or any User authorized by Client, or any person permitted to access or otherwise able to access the Software/Applications through any act or omission of Client, shall violate any of the Client Responsibilities set forth in Section 5, shall violate the Software License Terms set forth in Section 8, below, and/or shall violate any law or commit any tortious conduct with respect to AIM’s intellectual property; or
9. 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 Software Sales Agreement or these Terms of Service, 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.
Suspension, Denial, or Restriction of Access. In any Event of Default, or any violation of the Agreement or these Terms of Service, without any prior or contemporaneous notice and without any right to refund, credit, or other recourse, AIM may suspend, deny, restrict, and/or cut off, in whole or in part, Client’s access to the Applications and the Service hereunder, pending cure of the said Event of Default where such cure is possible.

Furthermore, AIM may suspend, deny, or restrict your access to all or part of the Applications or Services without notice in its reasonable discretion if it deems that you have engaged in any conduct or activities that AIM in its reasonable discretion believes violates the letter or spirit of any of these Terms. If AIM denies or restricts your access to the Services because of such a violation, you shall have no right to obtain any refund or credit for the subscriptions fees you have paid.

If and in the event AIM shall provide notice to Client that it is suspending, denying, and/or restricting Client’s access to all or any part of the Applications or Services, Client agrees that, for itself and all Users authorized by it or relating to it, it shall not access or use, or attempt to access or use, any Application, Software, or Service upon and after such notice without the express written consent of AIM. Any use of any Application or Service by Client or any User during such a suspension, denial, or restriction of access shall be wrongful, unauthorized, and violative of license agreement(s) and AIM’s intellectual property and shall be actionable as such under all applicable law. Nothing herein shall be construed as to require any notice to or cooperation with Client on the part of AIM in the event of any Suspension, Denial, or Restriction of Access.

In the event of a Suspension, Denial, or Restriction of Access hereunder, and/or upon termination, AIM may, in its sole discretion, store data, confidential and/or otherwise, relating to Client for a reasonable period of time or longer pursuant to its rights under these Terms, but we do not guarantee that your Customer Data will still be available upon and in the event of re-activation or restoration of privileges. Notwithstanding the foregoing, AIM reserves the right to delete all of your data, confidential and otherwise in the event of termination or any temporary or permanent Suspension, Denial, or Restriction of Access. Client shall be responsible for backing up or otherwise maintaining for itself all data and information it needs for its own business purposes, including information subject to the Health Insurance Portability and Accountability Act (“HIPAA”) and the Health Information Technology for Economic and Clinical Health Act (“HITECH Act”). AIM shall bear no liability for any data or information lost as a result of any temporary or permanent Suspension, Denial, or Restriction of Access or termination of this Agreement.

AIM will not be liable to you or any third party as a result of the termination any actions taken by AIM pursuant to this subsection or otherwise relating to any temporary or permanent Suspension, Denial, or Restriction of Access or termination of this Agreement. Without limiting the generality of the foregoing, AIM will not be liable to you or any third party for damages, compensation, or reimbursement relating to your use of the Sites or Services, or the termination thereof.

Client and any and all Users shall remain bound by this Agreement and these Terms of Service during the course of any Suspension, Denial, or Restriction of Access hereunder.
Notice and Cure. Except in the case of defaults under Subsections 7.1(a), (b), (h), and (i), 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.
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. Additionally, in the event of any termination of this Agreement by AIM under this subsection, the entire Software Hosting Fee that would otherwise have been due and owing over the remaining Term of this Agreement (including the forthcoming Renewal Term if such termination occurs within sixty (60) days of the commencement of such Renewal Term) shall be immediately due, owing, and payable in full to AIM by Client without any notice or demand to Client.

In the event that this Agreement, these Terms, and/or or the Services are terminated for any reason or no reason, you acknowledge and agree that you will continue to be bound by these Terms. Following termination, you shall immediately cease use of the Sites and Services and any license granted to you under any agreement related to your use of the Sites or Services shall immediately terminate.

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.

8. LICENSE, ADDITIONAL TERMS

Subject to the terms and conditions herein and any other agreements between you and AIM, AIM grants you a limited, revocable, non-transferable, non-sublicensable, non-exclusive license and right to access the Applications/Software, whether by copies of same installed onto a computer or device or by access available through a web portal or other website accessed via computer or mobile device. You may view content and information and otherwise use the Applications and Services to the extent, and only to the extent, intended and permitted by the functionality thereof. This license is personal to you, and neither you nor your vendors and/or agents may under any circumstance, directly or indirectly, market or re-sell our Applications or Services, permit other users access to our Applications or Services through your account, or use the Applications or Services for benefit or on behalf of others. The Applications and Services are for your sole internal business purpose, and you are prohibited from accessing the Applications or Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes. You may not copy or download any content from the Applications or Services except with the prior written approval of AIM. You acknowledge that, except as otherwise expressly provided, these Terms are solely between you and AIM.

Furthermore, without the prior written approval of AIM, you may not distribute, publicly perform or display, lease, sell, transmit, transfer, publish, edit, copy, create derivative works from, rent, sub-license, distribute, decompile, disassemble, reverse engineer or otherwise make unauthorized use of Application(s) or Service(s). Any commercial use of the Applications or Services not expressly authorized is prohibited. You agree not to remove, obscure, or alter copyright, patent, trademark, or other proprietary rights notices affixed to the Applications or Services or any user interface thereof. Your rights are subject to your compliance with these Terms as well as any other agreements applicable to the Services you are using.

Making unauthorized copies or distribution of Applications or Services, including all part and content thereof, or otherwise violating these Terms may result in the termination of your access to the Applications and Services, prohibition on use of the Services, and further legal action. Violations of AIM’s intellectual property may be prosecuted to the full extent permissible under the law.

The Applications and Services provided by AIM are licensed, not sold. The Applications and Services, and all parts and all copies of the Applications and Services, are owned by AIM (or its third party licensors, is and as applicable) and are protected by various intellectual property laws, including, without limitation, copyright, patent, and trade secret laws. AIM reserves all rights not expressly granted to you herein. You agree that you have no right to any AIM trademark or service mark and may not use any such mark in any way unless expressly authorized by AIM.

All rights, title and interests in and relating in any manner to the Applications and Services, and all software, applications, technology, and procedures developed or provided by AIM and media and documentation thereto, including without limitation report designs, formats and graphics relating to the Applications and Services shall be the sole and exclusive property of AIM, including, without limitation, all intellectual property rights and all related patents, copyrights, and trade secrets, as well as the Applications’ and Software’s source code, and any and all enhancements, modifications, adaptations and/or derivative works of the foregoing, whether made by AIM, you, or the parties jointly (the “Technology”). Any modifications to or derivations from the Applications made by you shall be the sole and exclusive property of AIM. In no event whatsoever shall any ownership or similar rights or interests in the Applications or Software, or any new, additional, or modified product even if and to the extent it is possible to derive same without violation of these Terms of Service, be vested to you. Rather, they shall belong to and vest in AIM absent specific written agreement to the contrary.

RAM grants a limited, revocable, non-transferable, non-sublicensable, non-exclusive license, to be exercised only in accordance with the terms and for the duration of this Agreement, and not subject to any further dissemination. All licenses, whether Business User or Personal User or otherwise, are subject to all terms of this Agreement not specifically limited to only one such category of User.
AIM reserves the right to limit your use of or access to the Software or Services, in its sole discretion, in order to maintain the performance and availability of the Software and Services and to enforce these Terms of Service.
Client is prohibited from removing, modifying or obscuring any copyright, trademark or other proprietary rights notices that is contained in or on all licensed software.
Client is prohibited from reverse engineering, decompiling, or disassembling all licensed software, except and only to the extent that such activity is expressly permitted by applicable law.
Client is prohibited from using run-time versions of third-party products embedded in the AIM Hosted Application for any use other than the intended use of that Hosted Application.
In connection with the Applications and Services, AIM may make available certain third-party software applications, that is, application, software, or products owned by, licensed from, or developed in conjunction with, a party other than Client or AIM, (“TP Apps”), including TP Apps that interoperate with Services. Your use of TP Apps will be governed by the terms and conditions of an end user license agreement (“TP EULA”) between you and the publisher of such TP App (“TP Publisher”). The TP Publisher has the right to enforce the TP EULA against you. If you do not want to comply with the TP EULA for a TP App, you must not use that TP App. AIM is not a party to the TP EULA for any TP App. No TP EULA may be inconsistent with these Terms or with any other license, agreement, term, or condition offered or imposed by AIM in connection with the sites or Services. Any term in any TP EULA that adversely affects AIM is preempted by these Terms.

Any information that a TP Publisher collects from you or your device will be subject to the applicable TP EULA, privacy notice, or similar terms that the TP Publisher provides to you. You hereby explicitly acknowledge and authorize AIM to, in connection with your purchase, download, or use of one or more TP Apps, provide the TP Publisher with the information provided by you in completing the purchase. If you purchase, download, or use TP Apps, such TP Apps may transmit your data outside of AIM’s systems during normal use, and the TP Publishers of those TP Apps may be able to obtain access to your data in the Services through an application programming interface (API) or other means. Such access may result in the disclosure, modification or deletion of your data by those TP Publishers or their TP Apps. Further, the TP Publisher and its agents and partners may collect and use data pertaining to your configuration and/or use of the TP Apps. AIM is not responsible for any transmission, collection, disclosure, modification, use or deletion of your data, as described in this paragraph, by or through TP Apps or their TP Publishers. The third-party content included in the TP Apps is the sole responsibility of the TP Publisher of that content. AIM is not responsible for any third-party content, whether or not it reviewed or moderated such content. You agree that you bear all risks associated with using or relying on TP Apps. AIM does not in any way warrant the accuracy, reliability, security, completeness, usefulness, non-infringement, or quality of any TP Apps (including without limitation any applications or content contained therein), regardless of who originated that content.

AIM does not warrant that TP Apps are error free. TP Apps are warranted, if at all, by the respective rights holders in such TP Apps. AIM itself makes no warranties regarding TP Apps, except that AIM does warrant that is has full rights and authority to grant all licenses and privileges conveyed under these Terms and that its performance under these Terms will not violate any agreement between it and a third party.

AIM HEREBY DISCLAIMS ALL WARRANTIES, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, RELATING TO SUCH TP APPS. AIM SHALL NOT BE LIABLE OR RESPONSIBLE IN ANY WAY FOR ANY LOSSES OR DAMAGE OF ANY KIND, INCLUDING LOST PROFITS OR OTHER INDIRECT OR CONSEQUENTIAL DAMAGES, RELATING TO YOUR USE OF OR RELIANCE UPON ANY TP APPS.
Other Third Party Content and Sites. In addition to the foregoing provisions regarding TP Apps, we do not control, and we are not responsible for, any third-party data, content, services, or products (including software) that you access, download, receive or buy while using the Services. We may, but do not have any obligation to, block information, transmissions or access to certain information, services, products or domains to protect the Services, our network, the public or our users. We are not responsible for the content, accuracy, timeliness or delivery of any opinions, advice, statements, messages, services, graphics, data or any other information provided to or by third parties as accessible through the Service.
From time to time, the Sites and Services may contain references or links to third-party materials not controlled by AIM or its suppliers or licensors. AIM provides such information and links as a convenience to you and should not be considered endorsements of such sites or any content, products or information offered on such sites. You acknowledge and agree that AIM is not responsible for any aspect of the information or content contained in any third party materials or on any third party sites accessible or linked to the Sites or Services. You are responsible for evaluating whether you want to access or use a third party site. Accordingly, if you decide to use third party sites, you do so at your own risk and agree that these Terms do not apply to your use of any third party sites. You should review any applicable terms or privacy policy of a third party sites before using it or sharing any information.
Customer Support for all third-party software used to operate as an SAAS provider will be the sole responsibility of AIM.

9. Warranties.

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; (5) Client will at all times comply with all applicable state and federal laws and regulations pertaining to billing for its services; (6) Client is authorized to enter into this Agreement and is not violating any other contract by entering into this Agreement; and (7) Client has the authority to and does hereby bind its employees, agents, and those Users accessing the Applications/Software through its licenses and/or otherwise on its behalf to these Terms of Service.
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.
DISCLAIMER OF WARRANTIES. 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 and any and all warranties implied or imposed as a matter of common or statutory law.

YOUR USE OF THE SITES AND SERVICE IS AT YOUR SOLE RISK. THE APPLICATIONS, ALL SITE CONTENT, AND THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTIES OF ANY KIND, EXPRESS, STATUTORY OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, NONINFRINGEMENT, AVAILABILITY OR ACCURACY OF INFORMATION. AIM DOES NOT WARRANT THAT THE APPLICATIONS, SITES, OR SERVICES WILL BE AVAILABLE, WILL MEET YOUR REQUIREMENTS, OR WILL OPERATE IN AN UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE MANNER OR THAT ERRORS OR DEFECTS WILL BE CORRECTED. AIM DOES NOT MAKE ANY REPRESENTATIONS, WARRANTIES, OR CONDITIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SITES OR SERVICE, IN TERMS OF THEIR ACCURACY, RELIABILITY, TIMELINESS, COMPLETENESS, OR OTHERWISE.

IT IS THE MUTUAL INTENT OF THE PARTIES THAT THE WARRANTIES WITH RESPECT TO THE APPLICATIONS AND SERVICES WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW AND, WILL BE CORRECTED AND MODIFIED TO EFFECTUALTE THAT INTENT IN LIGHT OF ANY VIOLATIONS OF THE LAW AS MAY EXIST NOW OR IN THE FUTURE.

10. LIMITATION AND DISCLAIMERS OF LIABILITY. AIM is not a Guarantor or Insurer of Client’s Business or the immediate and permanent functionality of the Applications/Software or Services. AIM shall not be responsible for limitations, delays, and other problems inherent in the use of the internet and electronic communications. Actual service coverage, speeds, locations and quality may vary. AIM will attempt to provide access to the Applications and Services at all times, except for limited periods for maintenance and repair. However, the Services and Sites may be subject to unavailability for a variety of factors beyond our control including emergencies, third-party service failures, transmission, equipment or network problems or limitations, interference, signal strength, and may be interrupted, limited or curtailed. Delays or omissions may occur. We are not responsible for data, messages or pages lost, not delivered, delayed or misdirected because of interruptions or performance issues with the Applications, Services, or communications services or networks. We may impose usage or Services limits, suspend the Services, or block certain kinds of usage in our sole discretion to protect users, the Applications/Services or the business and intellectual property of AIM, third parties, other clients, etc.. The accuracy and timeliness of data received is not guaranteed.

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.
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.
UNDER NO CIRCUMSTANCES WILL AIM, ITS AFFILIATES, EMPLOYEES, SHAREHOLDERS, DIRECTORS, OFFICERS, AGENTS, REPRESENTATIVES, LICENSORS, SUCCESSORS, ASSIGNS, OR OTHER THIRD PARTY PARTNERS BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE, INABILITY TO USE, OR THE RESULTS OF USE OF OUR APPLICATIONS, SERVICES OR SITES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY; INCLUDING WITHOUT LIMITATION DAMAGES RESULTING FROM LOST PROFITS, GOOD WILL, USE, DATA, LOST DATA, OTHER INTANGIBLE LOSSES, LOSS OF BUSINESS OR BUSINESS INTERRUPTION, WHETHER DERIVED FROM THIRD PARTY CLAIMS OR LOSSES OF ANY NATURE WHATSOEVER OR OTHERWISE, WHETHER SUCH LIABILITY WAS BASED UPON TORT, WARRANTY, CONTRACT, NEGLIGENCE, STRICT LIABILITY, PRODUCT LIABILITY, OR ANY OTHER LEGAL THEORY.
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.
AIM shall not be liable for any injury or damages arising from any hacking or cyber attack.
AIM is not liable for the loss, corruption, alteration or removal of any content transmitted using our Applications, web portals, or Services. By using our Services, you expressly waive the right to seek damages and agree to hold AIM harmless for any such loss, alteration, corruption or removal. You acknowledge and agree that you are solely responsible for retaining all records and reconciling all transaction information relating to your use of the Applications or Services.
The limitations of liability as set forth herein shall be applicable to and shall inure to the benefit of AIM and its officers, directors, employees, agents. The limitations set forth herein are intended to comply to the fullest extent possible with any applicable law, regulation, or statute prohibiting or limiting the exclusion or limitation of damages or the disclaimer of warranties and representations.

Each provision of these terms that provides for a limitation of liability, disclaimer of warranties, or exclusion of damages is to allocate the risks of this agreement between the parties. This allocation is reflected in the pricing offered by AIM to you and is an essential element of the basis of the bargain between the parties. Each of these provisions is severable and independent of all other provisions of these terms.

11. INDEMNIFICATION. You agree to, at your expense, defend, indemnify and hold harmless AIM (together with its affiliates, employees, shareholders, directors, officers, agents, representatives, licensors, successors, assigns, and heirs) from and against all damages, costs, penalties, sanctions, fees (including reasonable attorneys’ fees), and other liability of any kind associated with any third-party claim, suit, or cause of action that does, or is alleged to, arise out of or relate to use of the Application(s), Software, and/or Service(s) by you; by anyone gaining access by or through you, your device(s), your permission(s), or your passwords or portals; and/or by anyone acting on your behalf, or for your benefit. You also agree to, at your expense, defend, indemnify and hold harmless AIM (again together with its affiliates, employees, shareholders, directors, officers, agents, representatives, licensors, successors, assigns, and heirs) from and against all damages, costs, penalties, sanctions, fees (including reasonable attorneys’ fees), and other liability of any kind associated with any third-party claim, suit, or cause of action that does, or is alleged to, arise out of or relate to: (i) any violation of these Terms by you; (ii) injury (including death) to any persons or damage to or loss of tangible personal or real property resulting from any negligence or willful misconduct of you, your agents, servants, or employees, (iii) your Customer Data or any other content or material you submit or otherwise transmit through our Sites or Services; (iv) your violation of any rights of another; or (v) your use of the Applications or Services. AIMs reserves the right, but not the obligation, to assume the exclusive defense and control of any matter otherwise subject to defense by you, to cost of which shall be reimbursed or otherwise paid by you if reasonable.

12. Acceptable Use Policy/Restriction. You agree, for yourself and all Users (authorized or unauthorized) for which you are responsible, to comply with all applicable laws and regulations in connection with your use of the Applications and Services. You may not use our Applications or Services to engage in any illegal or fraudulent conduct or to post or transmit any illegal material, including without limitation any transmissions that would constitute a criminal offense, give rise to civil liability, or otherwise violate any local, state, national or international law or regulation. In particular, the following is a representative, non-exhaustive list of acts that are prohibited:

The transmission or posting of chain letters or pyramid schemes, or other acts that involve deceptive online marketing practices or fraud;
Acts that may materially and adversely affect the quality of other users’ experience;
Actual or attempted unauthorized use or sabotage of any computers, machines or networks;
Introducing of malicious programs into AIM’s network or servers (e.g. viruses, worms, Trojan horses, etc.);
Engaging in any monitoring or interception of data not intended for you without authorization;
Attempting to circumvent authentication or security of any host, network, or account without authorization;
Reverse engineering, decompiling, disassembling, deciphering or otherwise attempting to derive the source code for any underlying intellectual property;
Adapting, modifying, or creating derivative works based on the Sites, Services, or technology underlying the Services, or other users’ content, in whole or part;
Duplicating, licensing, sublicensing, publishing, broadcasting, transmitting, distributing, performing, displaying, selling, rebranding, or otherwise transferring information found on or used in/for the Application(s) or Services (excluding content posted by you) except as permitted in these Terms, or as expressly authorized by AIM in writing;
Using any method, software or program designed to collect identity information, authentication credentials, or other information;
Transmitting or receiving, uploading, using or reusing material that is abusive, indecent, defamatory, harassing, obscene or menacing, or a breach of confidence, privacy or similar third party rights;
Transmitting or receiving, uploading, using or reusing material that violates any intellectual property rights of a third party, including, without limitation, patents, trademarks, trade secrets or copyrights;
Transmitting, receiving, uploading, using or reusing material that you do not have a right to transmit under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
Falsifying user identification information;
Using the Services for anything other than lawful purposes including, but not limited to, intentionally or unintentionally violating any applicable local, state, national or international law; or Impersonating any person or entity, including, but not limited to, an AIM representative, or falsely stating or otherwise misrepresenting your affiliation with a person or entity.

13. 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.

14. Protection Of Health Information.

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.
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.

15. GENERAL TERMS.

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.
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.
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.
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.
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.
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.
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.
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, cyber attack, third-party technical causes such as loss of power, internet, or server capacity, 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.
Parties Bound; Assignment. This Agreement becomes effective and binding only as of the date the Software Sales 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
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.
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
Method of Performing Services; Independent Contractor. AIM will have the right to determine the method, details, and means of performing the Ser 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.
Survival: All provisions regarding intellectual property rights, limitation of liability, disclaimers of warranty, remedies and procedures for breach and default, and indemnification shall survive termination of this Agreement (as shall those involving interpretation and applicability of this Agreement). As a non-exhaustive list, the following provisions shall survive termination of this Agreement: 3.1; 4; 5B; 5C; 5G,;5J; 7; 8.3; 8.4; 8.5; 8.6; 8.7; 8.8; 9.3; 10; 11; 12; 13; 14; 15; 16.
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.
Usage of Language: Except and unless otherwise clear from context, the singular shall include the plural and vice versa. The conjunctive (e.g. “and”) shall include the disjunctive (e.g., “or”) and vice versa. And the masculine shall include the feminine, and vice versa.
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 Systems, 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:

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.
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.

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
USES AND DISCLOSURES OF PROTECTED HEALTH INFORMATION
1. 1. 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:
      - Hold the PHI confidentially
      - Use or Disclose the PHI only as required by law or for the purposes for which it was Disclosed to the recipient; and
      - Notify the Business Associate of any other Use or Disclosure of PHI.
    4. Data Aggregation: Business Associate may Use PHI to perform data aggregation services as permitted by 45 CFR §164.504(e)(2)(i)(B).
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.

TERMS OF SERVICE

EXHIBIT B

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