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Contract Guardian Business Associate Agreement Between Contract Guardian, Inc. and Client

This Business Associate Agreement (“Agreement”) is effective as of the date of the signed Contract Guardian, Inc. Order Form by and between Contract Guardian, Inc. (“CGI”), which is considered a Business Associate under the HIPAA Rules in connection with certain services provided to a Covered Entity (as defined in the HIPAA Rules), and Client (the “Covered Entity”). CGI and Covered Entity are collectively referred to in this Agreement as the “Parties” and individually as “Party.”

This Agreement supplements (and supersedes, where necessary) the service agreement and contract for services between the Parties (the “Service Agreement”) pursuant to which CGI agreed to provide certain software and related information technology services, commonly known as Contract Guardian (or such software and other services owned and/or controlled by CGI, that may but is not required to involve access to Protected Health Information (“PHI”) in connection with CGI’ status as a Business Associate of Covered Entity. The limitations of service, liability, warranties (or lack thereof) and other terms of the Service Agreement are incorporated herein by this reference.

The Parties agree to comply with, to the degree most reasonable and practical, and as are known or come to be known by either, the pertinent HIPAA Rules as amended by the Health Information Technology for Economic and Clinical Health provisions (“HITECH”) of the American Recovery and Reinvestment Act of 2009 and the final regulations implementing HITECH that became effective March 26, 2013.

In consideration of the premises and the mutual covenants and agreements described below, the Parties agree to the terms of this Agreement.

I. Definitions

A. Catch-all Definition

The following terms used in this Agreement shall have the same meaning as those terms in the HIPAA Rules: “breach, data aggregation, designated record set, disclosure, health care operations, individual, minimum necessary, notice of privacy practices, protected health information, required by law, secretary, security incident, subcontractor, unsecured protected health information, and use”.

B. Specific Definitions

1. Business Associate. “Business Associate” shall generally have the same meaning as the term “Business Associate” at 45 CFR 160.103, and in reference to the Party to this agreement, shall mean Contract Guardian, Inc. (“CGI”) as well as any related or controlled entities under which CGI operates or provides ancillary services.

2. Covered Entity. “Covered Entity” shall generally have the same meaning as the term “Covered Entity” at 45 CFR 160.103, and in reference to the Party to this agreement.

3. HIPAA Rules. “HIPAA Rules” shall mean the Privacy, Security, Breach Notification, and Enforcement Rules at 45 CFR Part 160 and Part 164.

II. Obligations and Activities of Business Associate

A. Business Associate agrees to:

1. Not to intentionally use or disclose protected health information other than as permitted or required by this Agreement or as required by law;

2. Use appropriate safeguards, and as best able to comply with Subpart C of 45 CFR Part 164 with respect to electronic protected health information, to prevent use or disclosure of protected health information other than as provided for by this Agreement;

3. Report to Covered Entity any known or discovered use or disclosure of protected health information not provided for by this Agreement of which it becomes aware, including breaches of unsecured protected health information as required at 45 CFR 164.410, and any material security incident of which it becomes aware; where Business Associate is required to report to Covered Entity any breach of unsecured protected health information in accordance with the breach notification requirements, the report will be made without unreasonable delay and in no case later than 60 calendar days following the discovery of the breach;

4. In accordance with 45 CFR 164.502(e)(1)(ii) and 164.308(b)(2), if applicable, take its’ best efforts to ensure that any subcontractors that create, receive, maintain, or transmit protected health information on behalf of the Business Associate agree to the same restrictions, conditions, and requirements that apply to the Business Associate with respect to such information;

5. As pertains to information and data under CGI’s control, make available protected health information in a designated record set to the Covered Entity as necessary to satisfy Covered Entity’s obligations under 45 CFR 164.524; if a request for access is received by the Business Associate directly from the individual or the individual’s designee, the Business Associate may, in its discretion, directly respond to the individual or designee, or to the Covered Entity;

6. Make any amendment(s) to protected health information in a designated record set as directed or agreed to by the Covered Entity pursuant to 45 CFR 164.526, or take other measures as necessary to satisfy Covered Entity’s obligations under 45 CFR 164.526; if Business Associate receives a request for amendment directly from the individual, the Business Associate may, in its discretion, directly respond to the individual or to the Covered Entity;

7. Maintain and make available the information required to provide an accounting of disclosures to the Covered Entity as necessary to satisfy Covered Entity’s obligations under 45 CFR 164.528; if Business Associate receives a request for an accounting of disclosures directly from the individual, the Business Associate may, in its discretion, directly respond to the individual (provided the Covered Entity has made available the required information) or to the Covered Entity;

8. To the extent the Business Associate is to carry out one or more of Covered Entity's obligation(s) under Subpart E of 45 CFR Part 164, comply with the requirements of Subpart E that apply to the Covered Entity in the performance of such obligation(s); and

9. Make its internal practices, books, and records relating to the use or disclosure of protected health information received from the Covered Entity, or created, or received by the Business Associate on behalf of the Covered Entity available to the Secretary for purposes of determining compliance with the HIPAA Rules.

III. Permitted Uses and Disclosures by Business Associate

A. Business Associate may use or disclose protected health information as necessary to perform the services set forth in Service Agreement.

B. Business Associate may use or disclose protected health information as required by law.

C. Business Associate agrees to make uses and disclosures and requests for protected health information consistent with Covered Entity’s minimum necessary policies and procedures as communicated to Business Associate.

D. Business Associate may not use or disclose protected health information in a manner that would violate Subpart E of 45 CFR Part 164 if done by Covered Entity, except for the specific uses and disclosures set forth below.

E. Business Associate may disclose protected health information for the proper management and administration of Business Associate or to carry out the legal responsibilities of the Business Associate, provided the disclosures are required by law, or Business Associate obtains reasonable assurances from the person to whom the information is disclosed that the information will remain confidential and used or further disclosed only as required by law or for the purposes for which it was disclosed to the person, and the person notifies Business Associate of any instances of which it is aware in which the confidentiality of the information has been breached.

F. Business Associate may provide data aggregation services relating to the health care operations of the Covered Entity.

IV. Provisions for Covered Entity to Inform Business Associate of Privacy Practices and Restrictions

A. Covered Entity shall notify Business Associate of any limitation(s) in the notice of privacy practices of Covered Entity under 45 CFR 164.520, to the extent that such limitation may affect Business Associate’s use or disclosure of protected health information.

B. Covered Entity shall notify Business Associate of any changes in, or revocation of, the permission by an individual to use or disclose his or her protected health information, to the extent that such changes may affect Business Associate’s use or disclosure of protected health information.

C. Covered Entity shall notify Business Associate of any restriction on the use or disclosure of protected health information that Covered Entity has agreed to or is required to abide by under 45 CFR 164.522, to the extent that such restriction may affect Business Associate’s use or disclosure of protected health information.

V. Permissible Requests by Covered Entity

Covered Entity shall not request Business Associate to use or disclose protected health information in any manner that would not be permissible under Subpart E of 45 CFR Part 164 if done by Covered Entity except if this Agreement provides that Business Associate will use or disclose protected health information for data aggregation or management and administration and legal responsibilities of the Business Associate.

VI. Term and Termination

A. Term. The Term of this Agreement shall be effective as of the date of the signed CGI Order Form and shall terminate date of expiration, or on the date either Party terminates for cause as authorized in paragraph B. of this Section, whichever is sooner. In no event shall this agreement survive or impose any liability to CGI after such date.

B. Termination for Cause. The Parties authorize immediate termination of this Agreement if either Party determines that the other Party has violated a material term of this Agreement. Alternatively, the non-breaching Party may allow the breaching Party to cure the breach or end the violation within a 30-day cure period. Any termination of this Agreement shall have no effect on the Service Agreement, its’ enforceability, or the general obligations of the Parties to each other as expressed in the Service Agreement.

C. Obligations of Business Associate Upon Termination. Upon termination of this Agreement for any reason, Business Associate, with respect to protected health information received from Covered Entity, or created, maintained, or received by Business Associate on behalf of Covered Entity, shall:

1. Retain only that protected health information which is necessary for Business Associate to continue its proper management and administration or to carry out its legal responsibilities;

2. Destroy the remaining protected health information that the Business Associate still maintains in any form;

3. Continue to use appropriate safeguards and comply with Subpart C of 45 CFR Part 164 with respect to electronic protected health information to prevent use or disclosure of the protected health information, other than as provided for in this Section, for as long as Business Associate retains the protected health information;

4. Not use or disclose the protected health information retained by Business Associate other than for the purposes for which such protected health information was retained and subject to the same conditions set out in the Permitted Uses and Disclosures by Business Associate section above which applied prior to termination; and

5. Return to Covered Entity or, if agreed to by Covered Entity, destroy the protected health information retained by Business Associate when it is no longer needed by Business Associate for its proper management and administration or to carry out its legal responsibilities.

6. For protected health information that Business Associate cannot feasibly return or destroy, the Business Associate will continue to safeguard the protected health information and use or disclose it only for the reasons that make return or destruction infeasible.

VII. Indemnification.

Notwithstanding any contrary provision of this Agreement, the Service Agreement or any other agreement between the Parties, the Covered Entity will indemnify, hold harmless and defend CGI from and against any claims and liability for damages, losses, costs, charges, fees, interest, statutory or regulatory penalties and expenses of any kind and any other expenses that CGI may incur as the result of any claims, demands, lawsuits or other action brought against CGI that results from Covered Entity’s (or Covered Entity’s agents or other business associates) acts or omission in connection with Covered Entity’s representations, duties and obligations under this Agreement or the Service Agreement. The Parties’ respective rights and obligations under this provision will survive the termination of the Service Agreement and/or this Agreement.

VIII. Miscellaneous

A. Regulatory References. A reference in this Agreement to a section in the HIPAA Rules means the section as in effect or as amended.

B. Amendment. The Parties agree to take such action as is necessary to amend this Agreement from time to time as is necessary for compliance with the requirements of the HIPAA Rules and any other applicable law.

C. Interpretation. Any ambiguity in this Agreement shall be interpreted to permit compliance with the HIPAA Rules. Section headings are for convenience only. If the terms and conditions in this Agreement conflict with the terms of the Service Agreement, the terms of this Agreement will control.

D. Severability. If any part of this Agreement is held invalid or unenforceable, the invalid or unenforceable part will not invalidate or render unenforceable any other part of this Agreement.

E. Notices. Any notice, or other communications required by this Agreement, must be in writing and can be provided electronically, by the U.S. Postal Service (certified or registered mail), or by a delivery service that provides tracking and the documentation of a delivery. All notices must be directed to the following:

1. As to CGI

Contract Guardian, Inc.
Administration Manager
7100 E Pleasant Valley Rd.
Suite 210
Independence, OH 44131

2. As to Covered Entity – Per address and contact on CG order form.

F. Governing Law. To the extent not preempted by federal law, this Agreement will be governed by the laws of Ohio, without regard to principles of conflicts of law, and shall be enforced with any litigation related to it in the Court of Common Pleas Cuyahoga County, Ohio.

G. No Third-Party Beneficiaries. Nothing expressed or implied in this Agreement is intended to confer upon any person other than the Parties (and their respective successors and assigns) any rights, remedies, obligations or liabilities.

H. Amendment. This Agreement may be modified on occasion by CG as HIPAA compliance requirements are updated