Skedulo
High-Capacity Booking Terms of Use

You agree that by registering on Skedulo.com, or by using our websites or mobile applications, or providing other information to Skedulo as part of the Skedulo services (collectively the “Services”), you are entering into a legally binding agreement with Skedulo Holdings, Inc. (“we,” “us,” “our,” and “Skedulo”) based on the terms of these Terms of Use, and become a Skedulo user (“you”, “your”, and “User”).

1. License

On the condition that you comply with all your obligations under these Terms of Use, we grant you a limited, revocable, nonexclusive, nonassignable, nonsublicenseable license and right to access the Services, through a generally available web browser, mobile device or application (but not through scraping, spidering, crawling or other technology or software used to access data without the express written consent of Skedulo or its Users), view information and use the Services that we provide on Skedulo webpages and in accordance with these Terms of Use. Any other use of the Services is strictly prohibited and a violation of these Terms of Use. We reserve all rights not expressly granted in these Terms of Use, including, without limitation, title, ownership, intellectual property rights, and all other rights and interest in Skedulo and all related items, including any and all copies made of the Skedulo website.

2. Personal Information Collected

Skedulo collects information about users of Skedulo’s services in order to provide scheduling services to you. The purpose of the Skedulo service is to schedule Users for a variety of reasons.

If you have any hesitation about providing such information to us and/or having such information used to provide the services, you may refrain from using Skedulo’s services.

If an authorized third party, such as a person acting under power of attorney on your behalf, registers for Skedulo’s services on your behalf, both you and that third party will be deemed to have accepted all of the terms of Terms of Use.

Like most websites, Skedulo uses cookies and web log files to track site usage. A cookie is a tiny data file which resides on your computer which allows Skedulo to recognize you as a User when you return to the Skedulo website using the same computer and web browser. Cookie and log file data is used to customize your experience on our website. We use cookies to improve the quality of our service by storing User preferences and tracking User trends. Most browsers are initially set up to accept cookies, but you can reset your browser to refuse all cookies or to indicate when a cookie is being sent.

You have the right to eliminate the data about you which has been collected pursuant to your decision to become a User. You may exercise that right by contacting us at usersupport@Skedulo.com.

3. Uses of Personal Information

Skedulo is a scheduling service designed to allow Users to schedule appointments. The information you choose to provide about yourself on our service is used to facilitate the Services.

Skedulo’s Communications to You

Skedulo may communicate with you through email and notices posted on the Skedulo website or mobile application, or through other means available through the Service, including text and other forms of messaging. If we send any communications to you via the carrier service with which you have a mobile communications subscription or otherwise have access, you understand you will pay any service fees associated with any such access (including text messaging charges for messages to your mobile device).

Sharing Information with Third Parties

Skedulo takes the privacy of Users very seriously. We do not sell, rent, or otherwise provide your private information to third parties for marketing purposes. When you use the Skedulo Service through a Skedulo website, or mobile application, you may be presented with opportunities to engage in informational programs presented by third-parties. When you choose to engage with a third-party, we will not share any of your data, and such third-parties may request that same information you provided to Skedulo.

Legal Disclaimer

It is possible that we may need to disclose personal information when required by law, such as responses to civil or criminal subpoenas, or other requests by law enforcement personnel. We will disclose such information when we have a good-faith belief that it is necessary to comply with a court order, ongoing judicial proceeding, subpoena, or other legal process or request to Skedulo brought in any country throughout the world, or to exercise our legal rights or defend against legal claims.

4. Your Obligations and Important Information

As a User, you have certain obligations, some of which are imposed by applicable law and regulations, and others required by Skedulo policy, such as:

  1. You must comply with all applicable laws, these Terms of Use as may be amended from time to time with or without advance notice, and the policies and processes explained in the following sections.
  2. By providing information to us, you represent and warrant that you are entitled to and have the requisite rights to submit the information and that the information is accurate, and not in violation of any contractual restrictions or other third party rights. Except as otherwise provided in these Terms of Use, Skedulo will have no obligations with respect to the information you submit to us.
  3. To be eligible to use the Service, you must meet the following criteria and represent and warrant that you: (1) are 18 years of age or older; (2) are not currently restricted from the Services, or not otherwise prohibited from using the Services, (3) have full power and authority to enter into these Terms of Use and doing so will not violate any other agreement to which you are a party; (4) will not violate any rights of Skedulo, including intellectual property rights such as copyright or trademark rights; and (5) agree to provide at your cost all equipment, software, and internet access necessary to use the Services.
  4. You indemnify us and hold us harmless for all damages, losses and costs (including, but not limited to, reasonable attorneys’ fees and costs) related to all third party claims, charges, and investigations, caused by (1) your failure to comply with these Terms of Use, including, without limitation, your submission of content that violates third party rights or applicable laws, (2) any content you submit to the Services, and (3) any activity in which you engage on or through Skedulo.

If Users have questions or concerns regarding this statement, you may contact Skedulo by email at usersupport@Skedulo.com

5. OUR RIGHTS AND OBLIGATIONS

Services Availability

For as long as Skedulo continues to offer the Services, Skedulo shall provide and may seek to update, improve and expand the Services. As a result, we allow you to access Skedulo as it may exist and be available on any given day and have no other obligations, except as expressly stated in these Terms of Use. We may modify, replace, refuse access to, suspend or discontinue Skedulo, partially or entirely, or change and modify prices for all or part of the Services for you or for all our users in our sole discretion. All of these changes shall be effective upon their posting on our site or by direct communication to you unless otherwise noted. For avoidance of doubt, Skedulo has no obligation to store, maintain or provide you a copy of any content that you or other Users provide when using the Services.

6. SERVICE DISCLAIMER

Do not rely on Skedulo, any information therein, or its continuation. We provide the Services and all information on an “as is” and “as available” basis. Skedulo does not control or vet User generated content for accuracy. We do not provide any express warranties or representations.

To the fullest extent permissible under applicable law, we disclaim any and all implied warranties and representations, including, without limitation, any warranties of merchantability, fitness for a particular purpose, title, accuracy of data, and noninfringement. If you are dissatisfied or harmed by Skedulo or anything related to Skedulo, you may cease using Skedulo services which shall be your sole and exclusive remedy.

Skedulo does not guarantee that the Services will function without interruption or errors in functioning. In particular, the operation of the services may be interrupted due to maintenance, updates, or system or network failures. Skedulo disclaims all liability for damages caused by any such interruption or errors in functioning. Furthermore, Skedulo disclaims all liability for any malfunctioning, impossibility of access, or poor use conditions of the Skedulo Services due to inappropriate equipment, disturbances related to internet service providers, to the saturation of the internet network, and for any other reason.

7. MEDICAL DISCLAIMER

The Skedulo Services may be used in conjunction with the provision of health care services. Skedulo is not a health care provider and is not responsible in any way for any for diagnosing or treating patients. The Services are not intended to be for medical diagnosis or treatment. Skedulo is not responsible or liable for any claim, loss, or damage arising from the use of the Services in conjunction with health care services. Skedulo does not recommend or endorse any specific drugs, tests, physicians, products, procedures, opinions, “off-label” drug uses or other information that may be mentioned on Skedulo.

8. BUSINESS ASSOCIATE AGREEMENT

The Health Insurance Portability and Accountability Act of 1996 generally requires that covered entities and business associates enter into contracts to ensure that the business associates will appropriately safeguard protected health information. A business associate agreement serves to clarify and limit, as appropriate, the permissible uses and disclosures of protected health information by the business associate, based on the relationship between the parties and the activities or services being performed by the business associate. You and Skedulo agree to the terms of the business associate agreement provided in Exhibit A hereto relating to any communications of electronic protected health information.

9. LIMITATION OF LIABILITY

Neither Skedulo nor any employees, shareholders, representatives or directors (“Skedulo Affiliates”) shall be cumulatively liable for (a) any damages in excess of U.S. $10, or (b) any special, incidental, indirect, punitive or consequential damages or loss of use, profit, revenue or data to you or any third person arising from your use of the Services. This limitation of liability is part of the basis of the bargain between the parties and without it the terms and prices charged would be different. This limitation of liability shall:

Apply regardless of whether (1) you base your claim on contract, tort, statute or any other legal theory, (2) we knew or should have known about the possibility of such damages, or (3) the limited remedies provided in this section fail of their essential purpose; and

Not apply to any damage that Skedulo may cause you intentionally or knowingly in violation of these Terms of Use or applicable law, or as otherwise mandated by applicable law that cannot be disclaimed from in these Terms of Use

10. TERMINATION

You may terminate your use of the Services, for any or no reason, at any time, by ceasing to use the Skedulo Services.

11. DISPUTE RESOLUTION

A. Law and Forum for Legal Disputes

These Terms of Use or any claim, cause of action or dispute (“claim”) arising out of or related to these Terms of Use shall be governed by the laws of the state of California regardless of your country of origin or where you access Skedulo, and notwithstanding of any conflicts of law principles and the United Nations Convention for the International Sale of Goods. You and Skedulo agree that all claims arising out of or related to these Terms of Use must be resolved exclusively by a state or federal court located in San Francisco County, California, except as otherwise agreed by the parties or as described in the Arbitration Option paragraph below. You and Skedulo agree to submit to the personal jurisdiction of the courts located within San Francisco County, California for the purpose of litigating all such claims. Notwithstanding the above, you agree that Skedulo shall still be allowed to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.

B. Arbitration Option

For any claim (excluding claims for injunctive or other equitable relief) where the total amount of the award sought is less than $10,000, the party requesting relief may elect to resolve the dispute in a cost effective manner through binding non-appearance-based arbitration. In the event a party elects arbitration, they shall initiate such arbitration through an established alternative dispute resolution (“ADR”) provider mutually agreed upon by the parties. The ADR provider and the parties must comply with the following rules: (a) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration; (b) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and any judgment on the award rendered by the arbitrator shall be final and may be entered in any court of competent jurisdiction.

12. GENERAL TERMS

A. Severability

If any provision of these Terms of Use is found by a court of competent jurisdiction or arbitrator to be illegal, void, or unenforceable, the unenforceable provision will be modified so as to render it enforceable and effective to the maximum extent possible in order to effect the intention of the provision; and if a court or arbitrator finds the modified provision invalid, illegal, void or unenforceable, the validity, legality and enforceability of the remaining provisions of these Terms of Use will not be affected in any way.

B. Notices and Service of Process

We may notify you via postings on www.Skedulo.com. You may contact us at usersupport@Skedulo.com or via mail or courier at:

Skedulo Holdings, Inc.
ATTN: Legal Department
800 Market Street, 4th Floor
San Francisco, CA

Additionally, Skedulo accepts service of process at this address. Any notices that you provide without compliance with this section on Notices shall have no legal effect.

C. Entire Agreement

You agree that these Terms of Use constitutes the entire, complete and exclusive agreement between you and us regarding the Services and supersedes all prior agreements and understandings, whether written or oral, or whether established by custom, practice, policy or precedent, with respect to the subject matter of these Terms of Use. You also may be subject to additional terms and conditions that may apply when you use or purchase certain other Skedulo services, third-party content or third party software.

D. Initial Posting and Amendments to these Terms of Use

These Terms of Use will be posted on the www.Skedulo.com website. We reserve the right to modify these Terms of Use at any time, so please review it frequently. We generally post updates to this policy once per year or as applicable. If you do not want to agree to changes to these Terms of Use, you can terminate these Terms of Use as they apply to you at any time by discontinuing use of the Services.

E. No Informal Waivers, Agreements or Representations

Our failure to act with respect to a breach of these Terms of Use by you or others does not waive our right to act with respect to that breach or subsequent similar or other breaches. Except as expressly and specifically contemplated by these Terms of Use, no representations, statements, consents, waivers or other acts or omissions by any Skedulo Affiliate shall be deemed legally binding on any Skedulo Affiliate, unless documented in a physical writing hand signed by a duly appointed officer of Skedulo.

F. No Injunctive Relief

In no event shall you seek or be entitled to rescission, injunctive or other equitable relief, or to enjoin or restrain the operation of the Service, exploitation of any advertising or other materials issued in connection therewith, or exploitation of the Services or any content or other material used or displayed through the Services.

G. Assignment and Delegation

You may not assign or delegate any rights or obligations under these Terms of Use. Any purported assignment and delegation shall be ineffective. We may freely assign or delegate all rights and obligations under these Terms of Use, fully or partially without notice to you. We may also substitute, by way of unilateral novation, effective upon notice to you, Skedulo for any third party that assumes our rights and obligations under these Terms of Use.

H. Potential Other Rights and Obligations

You may have rights or obligations under local law other than those enumerated here if you are located outside the United States.

 

 

EXHIBIT A:

HIPAA BUSINESS ASSOCIATE AGREEMENT BETWEEN SKEDULO AND USER

THIS HIPAA BUSINESS ASSOCIATE AGREEMENT (the “BA Agreement”) is entered into as of the date that the Skedulo User (referred to in this BA Agreement as “Provider”) begins using the Skedulo Service. This BA Agreement is entered into between the Provider (“Covered Entity”) and Skedulo, Inc. (“Business Associate”).

WHEREAS, Business Associate provides certain services to Covered Entity pursuant to the terms of the End-User License Agreement attached hereto (the “Agreement”).  In connection with Business Associate’s services, the extent Business Associate does create or receive Protected Health Information from or on behalf of Covered Entity, which information is subject to protection under the Federal Health Insurance Portability and Accountability Act of 1996, Pub. L. No. 104191 (“HIPAA”), the Health Information Technology for Economic and Clinical Health Act, Title XIII of the American Recovery and Reinvestment Act of 2009 (the “HITECH Act”), and related regulations promulgated by the Secretary (“HIPAA Regulations”), this BA Agreement shall apply.

WHEREAS, in light of the foregoing and the requirements of HIPAA, the HITECH Act, and HIPAA Regulations, Business Associate and Covered Entity agree to be bound by the following terms and conditions.

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:

1. Definitions.

a.      General. Terms used, but not otherwise defined, in this BA Agreement shall have the same meaning given to those terms by HIPAA, the HITECH Act and HIPAA Regulations as in effect or as amended from time to time.

b.     Specific.

i.       Breach. “Breach” shall have the same meaning as the term “breach” in the HITECH Act, Section 13400(1).

ii.      Electronic Health Record. “Electronic Health Record” shall have the same meaning as the term “electronic health record” in the HITECH Act, Section 13400(5).

iii.     Electronic Protected Health Information.  “Electronic Protected Health Information” shall have the same meaning as the term “electronic protected health information” in 45 CFR § 160.103, limited to the information that Business Associate creates, receives, maintains, or transmits from or on behalf of Covered Entity.

iv.     Individual. “Individual” shall have the same meaning as the term “individual” in 45 CFR § 160.103 and shall include a person who qualifies as a personal representative in accordance with 45 CFR § 164.502(g).

v.      Privacy Rule. “Privacy Rule” shall mean the Standards for Privacy of Individually Identifiable Health Information at 45 CFR Part 160 and Part 164.

vi.     Protected Health Information. “Protected Health Information” shall have the same meaning as the term “protected health information” in 45 CFR § 160.103, limited to the information created or received by Business Associate from or  on behalf of Covered Entity.

vii.   Required By Law.  “Required by Law” shall have the same meaning as the term “required by law” in 45 CFR § 160.103.

viii    Secretary. “Secretary” shall mean the Secretary of the Department of Health and Human Services or his designee.

ix.     Security Rule.  “Security Rule” shall mean the Security Standards at 45 CFR Part 160 and Part 164.

x.      Services Agreement.  “Services Agreement” shall mean any present or future agreements, either written or oral, between Covered Entity and Business Associate under which Business Associate provides services to Covered Entity which involve the use or disclosure of Protected Health Information.

xi.     Unsecured Protected Health Information. “Unsecured Protected Health Information” shall have the same meaning as the term “unsecured protected health information” in the HITECH Act, Section 13402(h)(1).

2. Obligations and Activities of Business Associate.

a.      Use and Disclosure.  If Protected Health Information is created by or disclosed to Business Associate, Business Associate agrees not to use or disclose Protected Health Information other than as permitted or required by the Services Agreement, this BA Agreement or as Required By Law.  Business Associate shall comply with the provisions of this BA Agreement relating to privacy and security of Protected Health Information and all present and future provisions of HIPAA, the HITECH Act and HIPAA Regulations that relate to the privacy and security of Protected Health Information and that are applicable to Covered Entity and/or Business Associate. Business Associate shall not (i) use or disclose Protected Health Information for fundraising or marketing purposes, except as provided under the Agreement and consistent with the HITECH Act, or (ii) directly or indirectly receive remuneration in exchange for Protected Health Information, except with the prior written consent of Covered Entity and as permitted by the HITECH Act, provided, however, this prohibition shall not affect payment by Covered Entity to Business Associate for services provided pursuant to the Agreement.

b.     Appropriate Safeguards. Business Associate agrees to use appropriate safeguards to prevent the use or disclosure of the Protected Health Information other than as provided for by this BA Agreement.  Without limiting the generality of the foregoing sentence, Business Associate will:

i.       Implement administrative, physical, and technical safeguards that reasonably and appropriately protect the confidentiality, integrity and availability of Electronic Protected Health Information as required by the Security Rule; Business Associate will comply with the applicable requirements, policies, procedures and documentation requirements of the Security Rule;

ii.      Ensure that any agent, including a subcontractor, to whom Business Associate provides Electronic Protected Health Information agrees in writing to implement reasonable and appropriate safeguards to protect Electronic Protected Health Information; and

iii.     Promptly report to Covered Entity in writing of any access, use or disclosure of Protected Health Information not permitted by the Agreement or applicable law and any Security Incident of which Business Associate becomes aware.  In addition, Business Associate shall, following the discovery of any Breach of Unsecured Protected Health Information, notify Covered Entity in writing of such breach without unreasonable delay and in no case later than fifteen (15) business days after discovery. The notice shall include the following information if known (or can be reasonably obtained) by Business Associate: (1) contact information for the individuals who were or who may have been impacted by the Breach (e.g., first and last name, mailing address, street address, phone number, email address), (2) a brief description of the circumstances of the Breach, including the date of the Breach and date of discovery, (3) a description of the types of Unsecured Protected Health Information involved in the Breach (e.g., names, social security numbers, date of birth, addresses, account numbers of any type, and similar information), and (4) a brief description of what the Business Associate has done or is doing to investigate the Breach and mitigate harm to the individuals impacted by the Breach. A Breach is considered “discovered” as of the first day on which the Breach is known, or reasonably should have been known, to Business Associate or any employee, officer or agent of Business Associate, other than the individual committing the Breach.

c.      Reporting. Business Associate agrees to promptly report to Covered Entity in writing any access, use or disclosure of Protected Health Information not permitted by this BA Agreement, and any Security Incident, as defined in the Security Rule, of which Business Associate becomes aware.

d.     Mitigation.  Business Associate agrees to mitigate, to the extent practicable, any harmful effect that is known to Business Associate of a use or disclosure of Protected Health Information by Business Associate or its employees, officers or agents in violation of the requirements of this BA Agreement (including, without limitation, any Security Incident or Breach of Unsecured Protected Health Information).  Business Associate agrees to reasonably cooperate and coordinate with Covered Entity in the investigation of any violation of the requirements of this BA Agreement and/or any Security Incident or Breach.  Business Associate shall also reasonably cooperate and coordinate with Covered Entity in the preparation of any reports or notices to the Individual, a regulatory body or any third party required to be made under HIPAA, HIPAA Regulations, the HITECH Act, or any other Federal or State laws, rules or regulations, provided that any such reports or notices shall be subject to the prior written approval of Covered Entity.

e.     Minimum Necessary. Business Associate (and its agents or subcontractors) shall request, use and disclose only the minimum amount of Protected Health Information necessary to accomplish the purpose of the request, use or disclosure.

f.      Agents. Business Associate shall ensure that any agent, including a subcontractor, to whom it provides Protected Health Information received from, or created or received by, Business Associate on behalf of Covered Entity agrees in writing to the same restrictions and conditions that apply through this BA Agreement to Business Associate with respect to such information.

g.      Access to Designated Record Sets. To the extent that Business Associate possesses or maintains Protected Health Information in a Designated Record Set, Business Associate agrees to provide access, at the request of Covered Entity, and in the time and manner designated by the Covered Entity, to Protected Health Information in a Designated Record Set created or received by Business Associate solely on behalf of Covered Entity only, to Covered Entity or, as directed by Covered Entity, to an Individual in order to meet the requirements under HIPAA Regulations.  If an Individual makes a request for access to Protected Health Information directly to Business Associate, Business Associate shall notify Covered Entity of the request within three (3) business days of such request and will cooperate with Covered Entity and allow Covered Entity to send the response to the Individual.

h.     Amendments to Designated Record Sets. To the extent that Business Associate possesses or maintains Protected Health Information in a Designated Record Set, Business Associate agrees to make any amendment(s) to Protected Health Information in a Designated Record Set that the Covered Entity directs or agrees to pursuant to HIPAA Regulations at the request of Covered Entity or an Individual, and in the time and manner designated by the Covered Entity.  If an Individual makes a request for an amendment to Protected Health Information directly to Business Associate, Business Associate shall notify Covered Entity of the request within three business (3) days of such request and will cooperate with Covered Entity and allow Covered Entity to send the response to the Individual.

i.       Access to Books and Records. Business Associate agrees to make its relevant internal practices, books, records (including applicable Protected Health Information), policies and procedures relating to the use and disclosure of Protected Health Information received from, or created or received by Business Associate on behalf of, Covered Entity (collectively “BA Records”)  available to the Secretary, in a time and manner designated by the Secretary, for purposes of the Secretary determining Covered Entity’s compliance with the Privacy Rule.

j.       Accountings. Business Associate agrees to document such disclosures of Protected Health Information and information related to such disclosures as would be required for Covered Entity to respond to a request by an Individual for an accounting of disclosures of Protected Health Information in accordance with HIPAA, HIPAA Regulations and the HITECH Act.

k.      Requests for Accountings. Business Associate agrees to provide to Covered Entity or an Individual, in the time and manner designated by the Covered Entity, information collected in accordance with Section 2(j) of this BA Agreement, to permit Covered Entity to respond to a request by an Individual for an accounting of disclosures of Protected Health Information in accordance with HIPAA, HIPAA Regulations and the HITECH Act.  If an Individual makes a request for an accounting directly to Business Associate, Business Associate shall notify Covered Entity of the request within three business (3) days of such request and will cooperate with Covered Entity and allow Covered Entity to send the response to the Individual.

3. Permitted Uses and Disclosures by Business Associate.

a.      Services Agreement.  Except as otherwise limited in this BA Agreement, Business Associate may use or disclose Protected Health Information to perform functions, activities, or services for, or on behalf of, Covered Entity as specified in the Services Agreement, provided that such use or disclosure would not violate HIPAA, HIPAA Regulations or the HITECH Act if done by Covered Entity or the minimum necessary policies and procedures of the Covered Entity.

b.     Use for Administration of Business Associate. Except as otherwise limited in this BA Agreement, Business Associate may use Protected Health Information for the proper management and administration of the Business Associate or to carry out the legal responsibilities of the Business Associate.

c.      Disclosure for Administration of Business Associate. Except as otherwise limited in this BA Agreement, Business Associate may disclose Protected Health Information for the proper management and administration of the Business Associate, provided that (i) disclosures are Required by Law, or (ii) Business Associate obtains reasonable written assurances from the person to whom the information is disclosed that it will remain confidential and used or further disclosed only as Required by Law or for the purpose for which it was disclosed to the person, and a written agreement from the person to immediately notify the Business Associate of any instances of which it is aware in which the confidentiality of the information has been breached.

4. Permissible Requests by Covered Entity.  Except as set forth in Section 3 of this BA Agreement, Covered Entity shall not request Business Associate to use or disclose Protected Health Information in any manner that would not be permissible under the Privacy Rule if done by Covered Entity.

5. Term and Termination.

a.      Term. This BA Agreement shall be effective as of the date of this BA Agreement and shall terminate when all of the Protected Health Information provided by Covered Entity to Business Associate, or created or received by Business Associate on behalf of Covered Entity, is destroyed or returned to Covered Entity, or, if it is infeasible to return or destroy Protected Health Information, protections are extended to such information, in accordance with the termination provisions in this Section.

b.     Material Breach by Business Associate. Upon Covered Entity’s knowledge of a material breach by Business Associate of the terms of this BA Agreement, Covered Entity shall either:

i.       Provide an opportunity for Business Associate to cure the breach or end the violation.  If Business Associate does not cure the breach or end the violation within the time specified by Covered Entity, Covered Entity shall terminate: (A) this BA Agreement; (B) all of the provisions of the Services Agreement that involve the use or disclosure of Protected Health Information; and (C) such other provisions, if any, of the Services Agreement as Covered Entity designates in its sole discretion;

ii.      If Business Associate has breached a material term of this BA Agreement and cure is not possible, immediately terminate: (A) this BA Agreement; (B) all of the provisions of the Services Agreement that involve the use or disclosure of Protected Health Information; and (C) such other provisions, if any, of the Services Agreement as Covered Entity designates in its sole discretion; or

iii.     If neither termination nor cure are feasible, Covered Entity shall report the violation to the Secretary.

c.      Material Breach by Covered Entity. If Business Associate knows of a pattern of activity or practice of Covered Entity that constitutes a material breach or violation of the Covered Entity’s obligations under the Agreement or other arrangement, the Business Associate must take reasonable steps to cure the breach or end the violation. If the steps are unsuccessful, the Business Associate must terminate the Agreement or other arrangement if feasible, or if termination is not feasible, report the problem to the Secretary.

d.     Effect of Termination.

i.       Except as provided in Section 5(d)(ii), upon termination of this BA Agreement, for any reason, Business Associate shall return or destroy all Protected Health Information received from Covered Entity, or created or received by Business Associate on behalf of Covered Entity. This provision shall apply to Protected Health Information that is in the possession of subcontractors or agents of Business Associate. Business Associate shall retain no copies of the Protected Health Information.

ii.      In the event that Business Associate determines that returning or destroying the Protected Health Information is infeasible, Business Associate shall extend the protections of this BA Agreement to such Protected Health Information and limit further uses and disclosures of such Protected Health Information to those purposes that make the return or destruction infeasible, for so long as Business Associate maintains such Protected Health Information.

6. Compliance with HIPAA Transaction Standards.  When providing its services and/or products, Business Associate shall comply with all applicable HIPAA standards and requirements (including, without limitation, those specified in 45 CFR Part 162) with respect to the transmission of health information in electronic form in connection with any transaction for which the Secretary has adopted a standard under HIPAA (“Covered Transactions”).  Business Associate will make its services and/or products compliant with HIPAA’s standards and requirements no less than thirty (30) days prior to the applicable compliance dates under HIPAA.  Business Associate represents and warrants that it is aware of all current HIPAA standards and requirements regarding Covered Transactions, and Business Associate shall comply with any modifications to HIPAA standards and requirements which become effective from time to time.  Business Associate shall require all of its agents and subcontractors (if any) who assist Business Associate in providing its services and/or products to comply with the terms of this Section 6.

7. Miscellaneous.

a.      Regulatory References. A reference in this BA Agreement to a section in HIPAA, HIPAA Regulations, or the HITECH Act means the section as in effect or as amended or modified from time to time, including any corresponding provisions of subsequent superseding laws or regulations.

b.     Amendment. The Parties agree to take such action as is necessary to amend the  Services Agreement from time to time as is necessary for Covered Entity to comply with the requirements of HIPAA, the HIPAA Regulations and the HITECH Act.

c.      Survival. The respective rights and obligations of Business Associate under Section 5(d) of this BA Agreement shall survive the termination of the Services Agreement or this BA Agreement.

d.     No Third Party Beneficiaries. Nothing express or implied in the Agreement is intended to confer, nor shall anything herein confer, upon any person other than Covered Entity, Business Associate and their respective successors or assigns, any rights, remedies, obligations or liabilities whatsoever.

e.     Interpretation. Any ambiguity in this Agreement shall be resolved to permit Covered Entity to implement and comply with HIPAA, HIPAA Regulations and the HITECH Act.

f.      Miscellaneous.  The terms of this BA Agreement are hereby incorporated into the Services Agreement.  Except as otherwise set forth in Section 7(d) of this BA Agreement, in the event of a conflict between the terms of this BA Agreement and the terms of the Services Agreement, the terms of this BA Agreement shall prevail.  The terms of the Services Agreement which are not modified by this BA Agreement shall remain in full force and effect in accordance with the terms thereof.  This BA Agreement shall be governed by, and construed in accordance with, the laws of the State of California, exclusive of conflict of law rules.  Each party to this BA Agreement hereby agrees and consents that any legal action or proceeding with respect to this BA Agreement shall only be brought in the courts of the state where the Covered Entity is located in the county where the Covered Entity is located.  The Services Agreement together with this BA Agreement constitutes the entire agreement between the parties with respect to the subject matter contained herein, and this BA Agreement supersedes and replaces any former business associate agreement or addendum entered into by the parties.  This BA Agreement may be executed in counterparts, each of which when taken together shall constitute one original.  Any PDF or facsimile signatures to this BA Agreement shall be deemed original signatures to this BA Agreement.  No amendments or modifications to the BA Agreement shall be effected unless executed by both parties in writing.