Last Modified: September 25, 2022
Terms and Conditions | Trademark and Intellectual Property License Agreement | Business Associates Agreement
This agreement (the “Agreement“) governs Customer’s acquisition and use of Services offered by Bariatric Centers of America, LLC (“BCA”). This Agreement is effective as of the date the Customer accepts this Agreement.
1.1. “Customer” means, in the case of an individual/physician accepting this Agreement on his or her own behalf, such individual, or in the case of an individual accepting this Agreement on behalf of a company/practice or other legal entity, the company/practice or other legal entity for which such individual is accepting this Agreement, and Affiliates of that company/practice or entity (while they remain Affiliates) which have entered into a contract.
1.2. “Services” means the products and services that are ordered by Customer under a contract or provided to Customer under a free trial and made available online by BCA on a subscription basis, including any associated offline components.
1.3 “Contract” means each agreement between BCA and customer and all applicable fees.
2. Bariatric Centers of America Responsibilities
2.1 No Control over Surgical Services. Physicians and any other physician employees of Customer providing bariatric surgical services shall not be employees or contractors of BCA. Customers shall have control over the provision of all professional medical and surgical services rendered at Practice or any hospital
2.2 Books and Records. The books and business records, including patient medical records, of Physicians and the Practice shall be the property of Customer and under its ownership and control. Upon termination or expiration of this Agreement, BCA shall immediately return to Customer direct control any of Physicians’ or the Practice’s books, records, patient billing information, medical records and related data (whether written or electronic) and all copies thereof in BCA’s possession.
2.3 Non-Solicitation. BCA shall not, during the Term of this Agreement and for one year after the end of the Term of this Agreement, solicit any persons then currently employed by Customer.
2.4 Assignment. This Agreement and the rights and obligations of Customer and BCA may not be assigned or delegated in whole or in part, directly or indirectly, without the prior written consent of the other party hereto; provided, however, that BCA may assign this Agreement to any person or entity purchasing substantially all of the assets of, and accepting assignment of substantially all of the liabilities of, BCA.
2.5 Support. Physicians and Practice staff shall provide BCA access to office space, equipment, administrativeservices, support staff and information technology as reasonably necessary for BCA to perform its duties under this Agreement.
3.1 Definition of Confidential Information. For purposes of this Agreement, “Confidential Information” shall mean, whether individually or as compiled, nonpublic information of any kind. This shall apply to any disclosure of Confidential Information by or on behalf of a party hereto to the other party hereto in oral, written, electronic or other form as well as to the discovery of Confidential Information of one party hereto by the other party hereto in connection with performance under this Agreement. This shall not apply to the exchange or disclosure of information that at the time of disclosure was in the public domain or subsequently becomes part of the public domain through no breach of this Agreement.
3.2 BCA Confidential Information. including but not limited to pricing, cost or other financial data; terms or existence of managed care contracts; proprietary or trade secret information; Salesforce customized coding; marketing plans, financial forecasts or other competitively sensitive information;
3.3 Customer Confidential Information. Patient medical and billing records and other patient information relating to patients of the Practice created during the Term.
3.4 Compelled Disclosure. Except as required by law or as necessary to perform obligations, neither party shall disclose the terms of this Agreement or use or disclose any Confidential Information of the other party without the express written consent of the other party; provided, that each party hereto may disclose Confidential Information of the other party only: (i) to those of its employees, agents, subcontractors, professional advisors and independent contractors who are required to know such information for purposes of enabling the disclosing party to perform its obligations to the other party hereto or to pursue and evaluate the business relationship with the other party hereto and only so long as each person to whom such disclosure will be made is informed of the disclosing party’s obligations hereunder and agrees to be bound by the confidentiality provisions hereof; and (ii) as required by court order or other lawful process. In all such cases, each party hereto shall disclose or use the Confidential Information only to the extent required to fulfill such purpose or legal requirement.
4. Insurance and Indemnification
4.1 Obligations of Both Parties. This Section and the rights and obligations of the parties under this Section will survive the termination or expiration of this Agreement and will continue until the later of (i) three years after termination or expiration of this Agreement and (ii) the expiration of any applicable statute of limitations. The obligations of indemnification hereunder shall be void and of no force or effect should such contractual indemnification abrogate or limit any party’s ability to make a claim under any policy of insurance.
4.2 Indemnification by BCA. To the fullest extent permitted by law, BCA shall indemnify Practice against any and all losses, damages, liabilities, costs and expenses of any kind or nature whatsoever, including reasonable attorneys’ fees, costs and expenses, incurred by Practice as a result of the breach by BCA or any employee, agent or independent contractor of BCA of the terms of this Agreement.
4.3 Indemnification by Customer. To the fullest extent permitted by law, Practice shall indemnify BCA against any and all losses, damages, liabilities, costs and expenses of any kind or nature whatsoever, including reasonable attorneys’ fees, costs and expenses, incurred by BCA as a result of the breach by Practice or any employee, agent or independent contractor of Practice of the terms of this Agreement.
4.4 BCA’s Insurance. BCA shall, at its own expense, procure and maintain at all times during the Term: directors’ and officers’ liability insurance, including third-party employment practice liability coverage, with respect to BCA’s consultative and management services under this Agreement, with deductibles and limits consistent with industry standards. Such insurance shall include all BCA communications to patients and prospective patients for purposes of education and navigation. Upon Practice’s request, BCA shall supply Practice with evidence of such coverage. BCA shall notify Practice of any cancellation of or material change in such insurance coverage at least 30 days prior to such cancellation or material If such coverage is written on a claims-made form following termination of this Agreement, then coverage shall survive for a period of not less than six years. The insurance coverage described above shall provide for a retroactive date of placement coinciding with the date hereof. In addition, BCA shall, at its own expense, procure and maintain at all times during the Term workers compensation insurance meeting statutory requirements and employer liability insurance coverage in commercially reasonable amounts with respect to BCA’s employees.
4.5 Practice’s Insurance. Practice shall, at its own expense, procure and maintain at all times during the Term: (a) professional liability insurance for all Physicians and its other employees in a minimum amount of $1,000,000 per occurrence and $3,000,000 in the aggregate; (b) commercial general liability insurance in a minimum amount of $1,000,000 per occurrence and $3,000,000 in the aggregate; (c) property and casualty insurance with deductibles and limits consistent with industry standards; and (d) workers compensation insurance meeting statutory requirements and employer liability insurance coverage in commercially reasonable amounts with respect to Practice’s employees. Upon BCA’s request, Practice shall supply BCA with evidence of such coverage. Practice shall notify BCA of any cancellation of ormaterial change in such insurance coverage at least 30 days prior to such cancellation or material change. If such coverage is written on a claims-made form following termination of this Agreement, then coverage shall survive for a period of not less than six years. The insurance coverage described above shall provide for a retroactive date of placement coinciding with the date hereof. In addition, Practice shall, at its own expense, procure and maintain at all times during the Term workers compensation insurance meeting statutory requirements and employer liability insurance coverage in commercially reasonable amounts with respect to Practice’s employees.
5. Term and Termination
5.1. Term. This Agreement will begin on the effective date of the first contract between the Parties and will continue for as long as any contract remains in effect, unless earlier terminated in accordance with this Agreement (the “Term”).
5.2 Termination. Either party may terminate this Agreement without cause and for any reason given a 90-day written notice.
5.3 Causes for Termination. Either party may terminate this Agreement immediately by delivering to the other party a written notice of termination if the other party commits a material breach and fails to cure that material breach in 30 days; provided, that if the party in breach is diligently pursuing a cure that cannot reasonably be completed within such 30-day period, then the party in breach shall be allowed such additional time as is reasonably necessary to complete such cure.
5.4 BCA Termination Policies. BCA may terminate this Agreement immediately by delivering written notice to Practice upon the transfer, directly or indirectly, by sale, merger or otherwise, of all or substantially all of the assets of Practice to any natural person or persons other than the Physicians or to any entity the majority of the voting equity of which is not owned by a majority of the Physicians.
5.5. Effect of Termination. Within 30 days of the date of termination of this Agreement for any reason, Practice shall pay to BCA any amounts due BCA accrued through the date of termination. Company also agrees it shall immediately cease any and all use of the Licensed Property as defined in the Trademark and Intellectual Property License Agreement. BCA reserves the right to insert control software into the Licensed Property to enable the remote discontinuation of Licensee’s use of the Licensed Property.
5.6. Renegotiation Period; Termination. Upon the giving of a notice, the parties hereto shall have 60 days to attempt to amend this Agreement in accordance with the Noticing Party’s proposal (if any) or otherwise as the parties hereto may agree. If this Agreement is not so amended within such a 60-day period, this Agreement shall terminate as of midnight on the 60th day after said notice was given. All communications presented by the Noticing Party hereunder, and any communications given by the other in response, shall be deemed confidential and given solely for the purposes of renegotiation and settlement of a potential dispute, and shall not be deemed disclosed so as to make any admission or waive any privileges otherwise applicable thereto.
5.7. Auto-Renewal. If this Agreement is not terminated through 5.1 and 5.6 in this section 5 and the initial term comes to a close, it will automatically continue on a month-to-month basis at the fee levels in effect at the end of the initial term. During this month-to-month continuation, this Agreement may be terminated through 5.1 to 5.6 in this section 5 or by giving a 30-day written notice.
6.1 Notices. All notices required or permitted under this Agreement must be delivered in writing, if to BCA, by emailing email@example.com and if to Customer by emailing the Customer Point of Contact email address listed on the contract, provided, however, that with respect to any notices relating to breaches of this Agreement or termination, a copy of such notice will also be sent in writing to the other party at the party’s address as listed on the contract by courier, by certified or registered mail (postage prepaid and return receipt requested), or by a nationally-recognized express mail service. Each party may change its email address and/or address for receipt of notice by giving notice of such change to the other party.
6.2 Notice Requirements. The Noticing Party shall give notice to the other party hereto together with the following information: (a) description of the Legal Event(s) giving rise to the notice; (b) The written opinion of independent legal counsel with expertise in the area of health care law and a national practice specializing in health care law, describing the Legal Event and the consequences or potential consequences of the Legal Event(s) as to the Noticing Party; and (c) The Noticing Party’s intention to either: (i) amend this Agreement, together with a description of the terms of such amendment and the purposes thereof; or (ii) if the documentation from legal counsel referred to in item (b) above states that no amendment to this Agreement can reasonably avoid the material and adverse consequences of the Legal Event(s), terminate this Agreement.
6.3 Waivers; Severability. The waiver by either party hereto of a breach or violation of any provision of this Agreement shall not operate as, or be construed to be, a waiver of any subsequent breach of the same or of any other provision. If any provision of this Agreement shall for any reason be held invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision of this Agreement, but this Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein, unless the invalidity of any such provision substantially deprives either party hereto of the practical benefits intended to be conferred by this Agreement.
6.4 Force Majeure. Neither party hereto shall be liable for or deemed to be in default for any delay or failure to perform any act under this Agreement (except for the payment of money) resulting, directly or indirectly, from acts of God, pandemic, civil or military authority, acts of a public enemy, war, terrorism, accidents, fires, explosions, earthquake, flood, failure of transportation, strikes or other work stoppages by the employees of either party hereto, or any other cause beyond the reasonable control and expectation of such party. Any delay in performance which exceeds a period of 60 days shall constitute grounds for termination of this Agreement as of the end of such 60-day period at the option of either party hereto.
6.5 Construction. In construing this Agreement, the following principles shall be followed: (a) no consideration shall be given to the captions of the Articles or Sections, which are inserted for convenience in locating the provisions of this Agreement and not as an aid in construction; (b) no consideration shall be given to the fact or presumption that any party hereto had a greater or lesser hand in drafting this Agreement; (c) examples shall not be construed to limit, expressly or by implication, the matter they illustrate; (d) the word “includes” and its syntactic variants mean “includes, but is not limited to” and corresponding syntactic variant expressions; (e) the plural shall be deemed to include the singular, and vice versa; (f) each gender shall be deemed to include the other gender; (g) if a term is defined as one part of speech (such as a verb), it shall have a corresponding meaning when used with respect to another part of speech (such as a noun) or when used in a different tense; and (h) any reference in this Agreement to any Article or Section refers to the corresponding Article or Section of this Agreement
6.6 Governing Law; Venue. This Agreement shall be construed and interpreted in accordance with the internal laws and judicial decisions of the State of Georgia. Any proceeding arising between the parties in any manner pertaining to this Agreement shall be held in the federal or state courts with geographic jurisdiction over Columbia County, Georgia, and the parties hereto irrevocably submit to subject matter and personal jurisdiction being exercised by, and venue being laid in, said courts
6.7 Headings. The headings to the sections and subsections of this Agreement are included merely for convenience of reference and shall not affect the meaning of the language included therein.
Trademark and Intellectual Property License Agreement
The term of this Trademark and Intellectual Property License Agreement and the term of the license granted by this Agreement shall be the same as the length of the term of the signed contract, unless sooner terminated in accordance with the provisions hereof.
1.1. “Licensee” means the Company or individual whom we have entered into a contract with.
1.2 “Marks” shall mean the trademarks, service marks, trade names and logos of BCA.
1.3 “Licensed Property” means the customized Salesforce and Marketing Cloud software.
2. Statement of Agreement
2.1 Grant of License. BCA grants to Licensee a non-exclusive, non-transferable, license to use the customized Salesforce and Marketing Cloud software and Marks (the “Licensed Property”) in connection with Licensee’s promoting, marketing, and delivering bariatric surgery and related services. Licensee may only use the Licensed Property as a collective whole and shall not separately use any element or elements of any portion thereof.
2.2 Reservation of Rights. BCA reserves any and all rights not expressly and explicitly granted in this Agreement, including BCA’s right to authorize or license use of the Licensed Property or any other trademarks, service marks, logos or names associated with BCA to any third party for use in connection with any goods and services. Without limiting the rights reserved in the first sentence, BCA reserves any and all rights to use, authorize use of or license use of the Marks or any other trademarks, service marks, logos or names containing the Marks in any geographic territory and in any language, except as otherwise agreed to in writing.
2.3 Ownership of Licensed Property. Licensee acknowledges that BCA is the sole and exclusive owner of the entire right, title and interest in Licensed Property and any applications, registrations and/or renewals associated with the Licensed Property, and Licensee agrees that it will do nothing inconsistent with BCA’s intellectual property rights in the Licensed Property and agrees that all use of the Licensed Property by Licensee shall inure to the benefit of BCA. Licensee agrees not to register or attempt to register any of the Marks as a trademark, service mark, Internet domain name, trade name, or otherwise with any domestic or foreign governmental or quasi- governmental authority and agrees it will not violate any of BCA’s intellectual property rights in the Licensed Property. Licensee may not register or use either the Marks or an abbreviation of the Marks as part of an Internet domain name. The provisions of this Section shall survive the expiration or termination of this Agreement.
2.4 Resharing of General Content: Content that is created for patient education and promotional purposes can be posted to the BCA website and used by BCA and other BCA affiliates royalty free provided that there is not anything specifically related to Licensee’s patients and in such case permission will be obtained in advance of such use. The creator of the original content will maintain ownership.
2.5 Equitable Relief. Licensee recognizes and acknowledges that a breach by Licensee of this Agreement may cause BCA irreparable damage which cannot be readily remedied in monetary damages in an action at law and may, in addition, constitute an infringement of the Licensed Property. In the event of any default or breach by Licensee that could result in irreparable harm to BCA or cause some loss or dilution of BCA’s goodwill, reputation or rights in the Licensed Property, BCA shall be entitled to seek immediate injunctive relief to prevent such irreparable harm, loss or dilution in addition to any other remedies available.
3. Protection of the Licensed Property
3.1 Proper Use. Licensee agrees that all use of the Licensed Property under this Agreement shall only occur in connection with Licensee’s promoting, marketing, and delivering bariatric care services at Practice and shall be in compliance with the terms of this Agreement. Licensee agrees not to use any other trademark or service mark in combination with the Marks other than as expressly permitted by BCA. Licensee may not use the Licensed Property in connection with or for the benefit of any third party’s products or services. Licensee further agrees not to use the Licensed Property on or in connection with any products or services that are or could reasonably be deemed to be obscene, pornographic, disparaging of BCA or its products or services, or that are themselves unlawful or whose purpose is to encourage unlawful activities by others.
3.2 Proposed Use. Prior to first use or publication of a proposed new form of use of any of the Marks by Licensee, Licensee shall submit, to the attention of the person or office identified by BCA, a specimen of such proposed use for BCA’s written approval. In addition, Licensee shall provide BCA with copies, photographs or representative samples of advertising copy, promotional materials or other material distributed by Licensee during the term of this Agreement that bear any of the Marks.
3.3 Monitoring by BCA. Licensee acknowledges that BCA has the right to periodically monitor Licensee’s use of the Licensed Property. If BCA determines in good faith that Licensee is using the Licensed Property improperly, BCA shall notify Licensee, and Licensee shall use reasonable efforts to remedy the improper use within five (5) business days following receipt of such notice from BCA. Use of the Licensed Property other than as provided in this Agreement or in connection with an infringement of BCA’s or a third party’s rights, including but not limited to rights under trademark, patent, trade secret or copyright laws, will constitute a material breach of this Agreement.
3.4 Infringement. Licensee will take all reasonable steps and provide such materials, cooperation and assistance as BCA may request. Licensee will promptly notify BCA of any actual or suspected infringement or misuse of the Licensed Property by third parties. Licensee may not take any action to enforce rights in the Licensed Property without the prior written approval of BCA.
Business Associate Agreement
[Name of Company] (“Covered Entity”) and Bariatric Centers of America, LLC (“Business Associate”), have entered into an agreement for services (“Services Agreement”), pursuant to which Business Associate may create, receive, maintain, or transmit individually identifiable health information, including electronic protected health information, as defined under the Health Insurance Portability and Accountability Act of 1996, and the regulations promulgated thereunder, as amended, including the Privacy, Security, Administrative, Enforcement, and Breach Notification Rules (collectively, “HIPAA”) for, from, or on behalf of, Covered Entity (collectively, “Protected Health Information” or “PHI”). As such, the parties enter into this Business Associate Agreement (“BAA”) and Business Associate will comply with its obligations, as well as the requirements and obligations of HIPAA. Any ambiguity in this BAA is to be interpreted to comply with HIPAA.
Terms. The terms used in this BAA shall have the same meaning as those set forth in the HIPAA, including, but not limited to, business associate, breach, breach of unsecured PHI, covered entity, data aggregation, designated record set, discovery, electronic PHI, individual, minimum necessary, Notice of Privacy Practices, Privacy Rule (Subpart E of 45 C.F.R. Part 164), protected health information, required by law, Secretary, security incident, Security Rule (Subpart C of 45 C.F.R. Part 164, subcontractor, and unsecured PHI.
General Obligation. Business Associate will comply with the applicable requirements of HIPAA, including the Privacy, Security, Enforcement, and Breach Notification Rules.
1. Permitted and Prohibited Uses and Disclosures of PHI.
1.1 Business Associate Responsibilities. Business Associate is permitted to use and disclose the PHI only as follows: (i) as set forth in this BAA; (ii) as required to perform its obligations under the Services Agreement (which may or may not include data aggregation relating to the health care operations of the Covered Entity); and, (iii) as required by law. Except as set forth in this BAA or in the Services Agreement, Business Associate is prohibited from otherwise using or disclosing PHI. Business Associate is likewise prohibited from using or disclosing PHI in any manner that would violate HIPAA if done by the Covered Entity, including from any improper sale of PHI under 45 C.F.R. § 164.502.
1.2 Disclosure to Third Party. To the extent permitted by other state and federal confidentiality laws, Business Associate may use, and disclose to a third party, PHI received under this BAA as necessary for the proper management and administration of the Business Associate or as necessary to carry out the legal responsibilities of Business Associate if: (i) the disclosures are required by law; or, (ii) Business Associate has received written reasonable assurances from the receiving third party that (a) the PHI will be handled confidentially as required by HIPAA, (b) the PHI will only be used or further disclosed as required by law or in keeping with the purposes for which it was disclosed, and (c) the third party will notify Business Associate promptly of any instances of which it is aware that the confidentiality of the PHI has been breached.
2. Scope of Business Associate Agreement
2.1 Minimum Necessary. When using or disclosing PHI, or when requesting PHI from another covered entity or business associate, Business Associate will make reasonable efforts to limit PHI to the minimum necessary to accomplish the intended purpose of the use, disclosure, or request. Should the amount of PHI needed by Business Associate change over the course of the Services Agreement, the parties will make the necessary adjustments.
2.2 Safeguards. Business Associate will implement and use appropriate safeguards, including comply with the applicable requirements of the Security Rule for electronic PHI, to prevent the use or disclosure of PHI that it creates, receives, maintains, or transmits, in any manner other than as specifically permitted by this BAA or the Services Agreement.
2.3 Business Associate Subcontractors. Business Associate will ensure that any subcontractor who creates, receives, maintains, or transmits PHI, including electronic PHI, on behalf of the Business Associate agrees, in writing, to: (i) follow the same restrictions and requirements as those that apply to Business Associate under this BAA, including reporting of any security incident or breach of unsecured PHI; (ii) comply with the applicable requirements of the Privacy and Security Rules; and, (iii) implement reasonable and appropriate safeguards and security measures to protect the PHI, including electronic PHI. Business Associate agrees to disclose to subcontractors who create, receive, maintain, or transmit PHI on behalf of the Business Associate only that PHI which is necessary to perform the services required under the Services Agreement. Business Associate will monitor compliance by its subcontractors and, if necessary, terminate the arrangements as required under 45 C.F.R. § 164.504(e)(1)(iii).
2.4 Reporting Breach/Security Incident. Business Associate will promptly report to Covered Entity, both orally and in writing, any use or disclosure of PHI that is not permitted or required under this BAA, including any security incident or breach of unsecured PHI that Business Associate discovers. Business Associate will cooperate with the Covered Entity in investigating and addressing the breach; however, the responsibility to notify patients of Covered Entity of any security incident or breach shall rest solely with Covered Entity and not with Business Associate. In the event Business Associate discovers that PHI has been stolen, is illegally compromised, or is otherwise in jeopardy of causing immediate harm to Covered Entity or the individual, Business Associate will contact Covered Entity as soon as practicable after discovery, inform it of the situation, and cooperate in remediating the incident. Business Associate agrees to comply with the HITECH Act, codified at 42 U.S.C. § 17921 – 17954, that apply to Business Associates, and Business Associate also agrees to comply with all regulations issued to implement such statutory requirements, as may be amended from time to time.
2.5 Access by Individuals. In accordance with 45 C.F.R. § 164.524 and within thirty (30) days of the request, Business Associate will make available to Covered Entity (or to the individual at Covered Entity’s direction) an individual’s PHI as maintained in a designated record set by Business Associate in the format requested, including provide an electronic copy of the PHI as requested, to the extent possible.
2.6 Amendment of PHI. In accordance with 45 C.F.R. § 164.526 and within forty-five (45) days of the request, Business Associate will make available to Covered Entity for amendment, and amend as requested, an individual’s PHI as maintained by Business Associate in a designated record set in such manner as Covered Entity may from time to time request, or as otherwise required under 45 C.F.R. § 164.526.
2.7 Accounting of Disclosures. In accordance with 45 C.F.R. § 164.528 and within forty-five (45) days of the request, Business Associate will maintain and make available to Covered Entity an accounting of disclosures of PHI, including the date of the disclosure, the name and address of the recipient of the PHI, a brief description of the PHI disclosed, and the purpose of the disclosure.
2.8 Privacy Obligations. To the extent Business Associate is charged with carrying out the Covered Entity’s obligations under the Privacy Rule, then Business Associate will comply with the requirements of the Privacy Rule that apply to the Covered Entity in the performance of such obligations.
2.9 Covered Entity’s Obligations. To the extent such restrictions, changes or revocations affect Business Associate’s use or disclosure of PHI, Covered Entity will notify the Business Associate of, and Business Associate will abide by: (i) any limitations in its Notice of Privacy Practices; (ii) any changes in, or revocation of, an individual’s permission to use or disclose PHI; and, (iii) any restriction on the use or disclosure of PHI to which Covered Entity has agreed or by which it is required to abide. Without limiting Business Associate’s ability to conduct data aggregation or to use PHI for the management, administration and legal responsibilities of Business Associate, Covered Entity will not request Business Associate to use or disclose PHI in any manner that would not be permissible under the Privacy Rule if done by the Covered Entity.
2.10 Disclosures to United States Department of Health and Human Services. Business Associate will make available to the Secretary its internal practices, books and records relating to the use and disclosure of PHI received from, or created or received by Business Associate on behalf of, Covered Entity, as well as the PHI itself, for purposes of determining Covered Entity’s or the Business Associate’s compliance with the applicable sections of HIPAA, including the Privacy and Security Rules.
2.11 Breach; Termination. Without limiting any other rights or remedies of the parties, if one party determines that the other has in an act, omission, or pattern of activity or practice that constitutes a material breach or violation of Business Associate’s obligations under the BAA, then such party will (i) provide the breaching party with written notice of the existence of a breach; and (ii) afford the breaching party an opportunity to cure such breach or violation upon reasonable terms and in a reasonable time period; provided, however, that if the breaching party is unable to successfully cure the breach or end the violation, then the non-breaching party may terminate this BAA and the Services Agreement (in whole or in part, as relevant) immediately by delivering written notice of termination to the breaching party.
2.12 Procedure upon Termination. Upon the termination or expiration of the Services Agreement for any reason, Business Associate will (i) return, or destroy in accordance with a process approved in advance by and acceptable to Covered Entity, all PHI that Business Associate received from, or created or received on behalf of Covered Entity, that Business Associate maintains in any form, including electronic PHI; and, (ii) not retain any copies of such PHI. If it is not feasible for Business Associate to return or destroy the PHI in accordance with the foregoing, then, for so long as it retains the PHI, Business Associate will: (i) continue to abide by this BAA and extend its protections to such PHI; (ii) continue to comply with HIPAA, including the Security Rule, as they relate to the PHI, including electronic PHI, to prevent unauthorized use or disclosure thereof; and, (iii) limit further use of the PHI to those purposes that make the return or destruction of the PHI infeasible.
2.13 Independent Contractor. Notwithstanding any other designations in the Services Agreement or otherwise, Business Associate is an independent contractor to Covered Entity for purposes of HIPAA, and nothing in this BAA is intended to create any other relationship between the parties.
2.14 Amendment. This BAA is intended to comply with the requirements of HIPAA. If the applicable laws and regulations should be amended, then the parties will amend this BAA accordingly, provided that if the change in law or regulations causes any paragraph or provision of this BAA to be invalid, incomplete, void, in any manner unlawful, or subjects either party to penalty, then the BAA will be deemed to be amended by operation of law, regardless of whether the parties document such changes in the law by written amendment.
2.15 Survival. The rights and obligations of this BAA will survive the termination of the services agreement and this BAA as required to continue to protect any PHI that is required to be maintained, created, received or transmitted by Business Associate or its subcontractors after termination for whatever reason.
2.16 Scope. This BAA applies to any and all Services Agreements entered into by the parties, whether in effect now or in the future. This BAA also amends and restates any existing business associate agreements that the parties may have in existence between them.
2.17 Miscellaneous. Neither party may assign its rights or obligations under this BAA without mutual agreement. Any illegal or unenforceable provisions in this BAA are severed without affecting the remaining provisions. Remedies under this BAA and any other provisions of the Services Agreement will be cumulative, and failure to exercise any remedy will not constitute a waiver. If this BAA is attached to the Services Agreement, it is deemed executed by incorporation.