Admirable Insurance Marketing
This Broker Agreement (hereinafter referred to as “Agreement”) is entered into and made effective by Brokers Name: _________________________
(hereinafter referred to as “Broker”) and between Admirable Insurance Marketing LLC
WHEREAS, Admirable Insurance Marketing LLC, (known as AIM and/or AIM 4 USA) has contracted with various Medicare Advantage Plans (“Plans”) which operate a license Health Care Service Plan pursuant to the Knox-Keene Health Care Service Plan Act of 1975 (Health and Safety Code Section 1340, et seq.) (Knox-Keene Act’) to enroll Medicare Advantage (“Medicare Advantage”) eligible individuals.
WHEREAS, Broker is an independent contractor who will assist in the sales of individual health plans and services to Medicare Advantage eligible individuals.
Now, therefore, in consideration of the foregoing recitals and the mutual covenants and agreements contained herein, the parties agree as follows:
1.1 Individual Member shall mean an individual who meets the definition of and eligible individual in accordance with the Medicare Advantage underwriting policies of the Medicare
1.2 Medicare Advantage is the program established by the federal government to allow persons eligible for Medicare to choose from a variety of health care options including Managed Care Organizations (MCO) and fee for service plans.
1.3 CMS shall mean the Centers for Medicare and Medicaid Services, which is the federal agency
that administers Medicare, Medicaid and the State Children’s Health Insurance Program.
1.4 DMHC shall mean the California Department of Managed Health Care.
1.5 Dually Eligible Individua Shall mean those members that are eligible for Medicare Advantage plans and Medicaid Plans.
1.6 Plan(s) is the Managed Care Organization(s) contracted with AIM 1.7 Sales Cycle: The Compensation period for enrollment consisting of the Initial Enrollment Year and minimum of five (5) Renewal Enrollment years or as long as the plan pays renewals. The Sales Cycle attaches to the Medicare Enrollee, whether the Medicare Enrollee moves from one MA organization to another and/or moves from one producer to another.
1.8 Renewal Enrollment: and enrollment into and MA or PDP in years two (2) through six (6) of the Sales Cycle or as long as the plan pays renewals, including where the Medicare Enrollee: (1) re-enroll in the same MA or PDP plan in which he/she enrolled as an Initial Enrollment; or (2) makes a Like Plan Type Change.
2. RESPONSIBILITIES OF BROKER
2.1 Broker shall be responsible for presenting and writing enrollments for those plans in which AIM and Broker has a contract. Broker will be responsible for developing their own client leads, setting appointments, and arranging for presentations and events. All plan enrollments shall meet CMS requirements and shall be forwarded to applicable health plan within one (1) business day in compliance with HIPPA requirements.
2.2 Prior to undertaking such duties with respect to any specific Individual Member, Broker must be pre-approved by each Plan and must be licensed by the California Department of Insurance.
2.3 Broker will only use marketing materials provided by the Plan and/or approved by CMS.
2.4 Broker will maintain Error and Omissions insurance in the amount no less than one million
($1,000,000.00) dollars per incident and one million ($1,000,000.00) dollars aggregate.
2.5 Broker shall complete Broker information forms, and agreements and other documents as specified by Plans and AIM as directed.
2.6 Broker represents that they provide services (a) in a fair, accurate and ethical manner adhering to all Plan, AIM and CMS requirements, including and without limitation, “CMS Medicare Sales and Marketing Guideline”, (b) the relevant portions of the Medicare Managed Care Manual, which incorporates the “Must Use/Can’t Use/Can Use” guidelines, (c) such other written guidelines that Plans or AIM may issue upon execution of this contract or at any point in the future, and (d) will accurately and truthfully represent the Plans in a fair and balanced manner.
2.7 Broker agrees to abide by applicable laws, rules, regulations and guidelines, and any restrictions imposed thereby by any law or regulatory agencies, including but not limited to CMS marketing guidelines and Medicare Advantage 42 S.F.R § 422.118 and PDP (42.C.F.R. §423.136) in the services areas in which Plans will be marketed. Both parties hereby agree to any amendments to this Agreement that may be required to assure compliance with all State and Federal laws, rules regulations and guidelines.
2.8 Brokers shall promptly notify AIM of any disciplinary proceeding against them relating to any license or permit issue by the California Insurance Commissioner. Broker represents that they have never had their license or permit restricted, suspended or revoked by any regulatory body or administrative agency, including without limitation the Department of Insurance. Broker represents that Broker has never been suspended, fined by or terminated from any government health care program such as Medicare or Medi-Cal. In the event that any representations made hereunder are subsequently determined to be incorrect after the commencement of this Agreement, or subsequent to the commencement of this Agreement, if Broker is suspended, fined by or terminated from any such governmental health care program, or is the subject of any disciplinary proceedings as described in this paragraph, Broker shall immediately be prohibited from marketing Plan for AIM . In the event that Broker fails to notify AIM of any disciplinary proceedings against Broker or potential disciplinary proceedings against Broker, Broker shall be prohibited from marketing Plan for AIM .
2.9 In the event Broker engages in any documented practices or conduct that are unethical, that violate a law or regulation applicable to AIM business, or that AIM documents as harmful to its reputation, Broker shall be subject to immediate, appropriate corrective action, including the immediate cessation of the marketing of Plan by Broker if requested by AIM . Nothing in this Section is intended to limit or restrict AIM ’s rights of termination in Section 5.
2.10 The parties acknowledge that Broker, in performing services hereunder, may acquire certain confidential information relating to AIM its affiliated corporations. Broker agrees to refrain, during and after the expiration or termination of this Agreement, with or without cause, from divulging or disclosing to any third party any information regarding any matters relating to AIM business; any prospect lists or information of AIM ; research, or activities at AIM affiliated corporations, which may become known to Broker by reason of this Agreement or otherwise, Broker further agrees that he will prevent any of his employees, affiliated business relationships or agents from divulging or disclosing any information regarding such AIM matters. Broker acknowledges and agrees that the confidential information of AIM shall include, but not be limited to, any information related to its members, prospect lists, existing or future services, products, operations, management, business, financial information, goals, profits, billings, referral services, strategies, technology, trademarks, know how, and objectives of AIM and its affiliates, except to the extent that such information is generally available or known to the public or become known to the public through means other than a breach of this Agreement, any other known Agreement, or by any person or entity having an obligation to keep such information confidential. Broker shall not publish or otherwise disclose any confidential information learned as result of his marketing activities, to any person or entity without AIM prior written approval. Upon termination of this Agreement, Broker shall immediately cease and desist from utilizing and all AIM confidential information and return all confidential information to AIM . Upon request by AIM shall copy any and all records and forward them to AIM at Broker’s sole expense.
3.1 AIM shall pay Broker according to the attached Exhibit “A”, upon receipt of payment by Health Plan(s). Broker understands that their compensation may be amended to adjust compensation as required by Plans. AIM will make best efforts to provide at least thirty day notice of any such changes.
3.2 Broker understands and acknowledges AIM shall have full control of, and discretion as to the collection, adjustment or compromise of any or all Individual
3.3 Broker agrees that under no circumstance shall Broker give any part of compensation received by Broker for the sale of Medicare Products to any Medicare Enrollee or to any other third party who assisted Broker in making a sale who is not licensed or otherwise eligible under applicable law to receive such compensation.
3.4 Commissions and, or Referral fees paid by AIM are available only to Licensed Agents. Payable upon receipt from applicable carrier within 14 business days.
4.1 Broker shall indemnify and hold harmless AIM from and against any and all demands, debts, liens, losses, liabilities, damages, expenses, costs, claims, judgments, obligations, actions or causes of action, attorney’s fees and expenses actually incurred whether or not litigation is commenced for or in connection with injury or damage arising, made, incurred, or suffered, directly from negligent acts, errors and omissions or any dishonest, fraudulent, criminal acts or intentional acts or omissions by Broker, Broker’s employees or agents in connection with his performance of any duties under this Agreement. Broker shall pay any costs, expenses, attorney’s fees and any settlement award for AIM as specified in this Section if AIM gives Broker written notice of such claims.
4.2 In the event AIM is fined by CMS, the DMHC, the Plan or any governmental agency for any act or omission of Broker which may arise hereunder this agreement or written notice has been served upon AIM for fines and associated costs related to any act or omission of Broker which may arise hereunder this Agreement, and with respect to which act or omission AIM has provided written notice to Broker, Broker shall promptly reimburse AIM the total amount of the fine and other associated cost incurred by AIM in correcting the situation which gave rise to the fine. AIM will provide written notice to Broker of any claim, accusation, purported violation or the like AIM receives from CMS, the DMHC, the Plan or any governmental agency. Broker will reimburse AIM for the fine and other associated costs incurred within 60 days of receiving written request for reimbursement. If Broker fails to reimburse fines and associated costs within 60 days of receipt of a written request for reimbursement, AIM may offset the amount of such fines and costs against amounts due Broker by AIM .
4.3 Broker agrees that in no event, including, but not limited to, nonpayment by AIM or the insolvency or breach of this Agreement by AIM , shall Broker bill, charge, collect a deposit from, seek compensation, remuneration or reimbursement from, or have any recourse against a Medicare Enrollee or other person, other than AIM , acting on a Medicare Enrollee’s behalf, for payments that are the financial responsibility of AIM under the Agreement.
5. TERMS AND TERMINATIONS
5.1 This Agreement shall be effective upon the date appearing above and shall continue in full force and effect for a period of one (1) year, after which this Agreement shall be renewed automatically for subsequent one (1) year period. However, this Agreement may be terminated pursuant to the following Sections:
5.2 Either party may terminate this Agreement, without cause, with thirty (30) days prior written notice.
5.3 Notwithstanding any other provision of this Agreement, in the event of a material breach of this Agreement by either party, the non-breaching party may terminate this Agreement by giving thirty (30) days written notice of termination to the breaching party. Such notice of termination shall specify the nature of the material breach and indicate that the termination is effective immediately upon delivery of the notice or on the date specified in the notice. In the event of such termination and rescission, Broker shall have no further right to any compensation from AIM except for the commissions earned up the time of termination as required by AIM Insurance Service Agreements.
5.4 AIM may terminate this Agreement immediately, or in its sole discretion, investigate and take corrective action at any time, if it determines that Broker is not performing services satisfactorily, if any reporting or disclosure requirements are not satisfied in a timely manner, or if Broker fails to perform any corrective action requested by AIM .
(a) AIM may terminate this Agreement immediately on written notice to Broker in the event Broker violates, in the opinion of AIM or AIM contracted Plans, or is accused in writing of violating, in the opinion of a Regulatory Agency, any law or regulation applicable to Broker including but limited to any CMS requirement applicable to Plans or the Medicare Products;(ii) in the event that a Plan receives or becomes aware of a sales allegation against Broker and AIM requests information from the Broker regarding the allegations, if Broker fails to respond to AIM within seven (7) calendar days of such request; or (iii) makes a general assignment for the benefit of creditors or files a petition in bankruptcy.
(b) AIM may terminate this Agreement immediately at any time on written notice to Broker if there is any breach of Section 2.3 Unauthorized promotional material.
(a) Upon the termination of this Agreement, with or without cause, Broker shall immediately return to AIM any all promotional and other material that bear AIM name or were provided to Agency in relation to this Agreement, including, but not limited to enrollment forms, marketing brochures and materials.
(b) Broker shall continue to comply with any additional terms contained herein this Agreement that survive the termination of this Agreement, including, but not limited to: Section 2.10, Confidential information; Section 6.2, Availability of Record; and the Exhibit “B”HIPAA Business Associate Agreement.
5.6 In the event that AIM terminates this Agreement in accordance with Section 5.3 or 5.4, AIM obligation to pay any compensation hereunder shall cease as of the effective date such termination. If the Agreement is terminated without cause, AIM reserves the right to withhold monies from all or percentage of commission payments up to twelve months from the last sales effective date to offset any monies owed to the agency for charge backs or disenrollment’s retroactivity. Any monies remaining after this period will be dispersed back to Broker.
6. ENROLLEE RECORDS AND SERVICING
6.1 Broker shall provide AIM with the original enrollee records or further information that is required to allow AIM to properly fulfill its obligations, verification and other responsibilities to enrollees or to comply with regulatory requirements.
6.2 Broker will maintain such books and records relating to the performance of the obligations under this Agreement as may be required by law. In any event, Broker will retain all such records for a period of at least ten (10) years. Broker will make all pertinent contracts, books, documents, paper and records involving the transactions related to this Agreement available
to Plan members and others as required by HIPAA, and to HHS, CMS, DMHC, the Comptroller General or their designees, or any other state or federal government agency or their designees, for the purpose of inspection, evaluation or audit for at least ten (10) years or until the completion of any audit commenced within such time. Such records must be provided to requesting party within five (5) working days of receipt of request. These obligations shall not terminate upon termination of this Agreement.
7. GENERAL PROVISIONS
7.1 The existence, validity and construction of this Agreement shall be governed by the internal laws of the State of California irrespective of nay conflict of law principles to the contrary.
7.2 Neither party shall have the right to assign this Agreement. Any attempted assignment of this Agreement in contravention of this Section 7.2 shall be null and void and without any effect whatsoever.
7.3 Subject to the provisions of this Agreement regarding assignment, the terms, covenants and conditions contained herein shall be binding upon and inure to the benefit of the successors and assigns to the party hereto.
7.4 The waiver by either party of one or more defaults, on the part of the other, shall not be construed as a waiver of any future default, under the same or different terms, conditions or covenants contained in the Agreement.
7.5 The captions and headings used throughout this Agreement are for convenience or reference only and shall in no way be held or deemed to be a part of or affect the interpretation of the Agreement.
7.6 Both parties acknowledge that there is no intent by either party to create or establish any rights for any third party beneficiary. No third party may enforce any provision hereof.
7.7 Both parties agree and understand that this Agreement supersedes any and all prior agreements, whether written or oral, or any other documents respecting the parties’ rights and obligations concerning this Agreement or the Plan.
7.8 This Agreement shall be interpreted according to its terms and, in the event any term or provision should be found ambiguous, there shall be no presumption in favor or against either party on the grounds that one or the other was responsible for drafting any term or provision in this Agreement.
7.9 All Notices required to be given hereunder shall be in writing and shall be deemed delivered if personally delivered, or if sent by certified or registered mail, return receipt requested, or overnight courier service addressed to the Broker’s last known address. Broker shall be responsible for notifying AIM of any address change in writing and is responsible for maintaining a current address with AIM .
7.10 This Agreement may only be amended in writing signed by both parties with the exception that AIM can Amend Exhibit A giving thirty (30) days’ notice.
7.11 Broker shall not subcontract, delegate or assign any duties and responsibilities under this Agreement. Any attempted subcontracting, delegation, or assignment of this Agreement in contravention of this Section 7.11 shall be null and void and without any effect whatsoever.
7.12 If any part of this Agreement is held by a court of competent jurisdiction of California or federal law to be invalid, void or unenforceable, the remaining provisions will nevertheless continue in full force and effect.
7.13 This Agreement and Exhibits A, B and C constitutes the entire agreement between the parties relating to the subject matter contained in it and supersedes all prior and contemporaneous agreements between the parties. No modification or waiver of this Agreement shall be binding unless executed in writing by the parties. Terms of Exhibit A may be changed by addendum.
7.14 The Parties agree that all disputes regarding the validity, interpretation and/or enforcement of this Agreement, shall be submitted to binding arbitration before and arbitrator mutually agreed upon by the Parties, and that the arbitration shall be governed by the rules of arbitration set forth in the California Code of Civil Procedure, § 1280 et seq. If the Parties cannot decide upon an arbitrator, then the Parties will submit the dispute to the American Arbitration Association (“AAA”), which will select the arbitrator from its roster, who will then conduct the arbitration according to the commercial rules of arbitration of the AAA, as they exist at the time or arbitration.
7.15 This Agreement may only be amended or modified by an executed amendment by both parties or, if AIM delivers written notice of said amendment to Broker and no written response is receive from Broker within 15 days of receipt of the amendment, it shall be deemed that the Broker has accepted and approved the amendment. The above notwithstanding, this Agreement shall be deemed automatically amended or modified to incorporate all provisions required by laws, rules and regulations applicable to this Agreement, and/or any regulatory agency having any jurisdiction over the provisions hereof, including, without limitation, those provisions required by the Department, the Act or the Regulations.
7.16 AIM will provide Broker a Release from any and all Contracts if requested within 5 business days of such request.
The parties, by their properly authorized signatories, have caused this Agreement to be made effective as of the date shown on the contract signature page.
On behalf of Broker: On behalf of AIM :
Name: Justin Wendell – Chief Executive Officer
ï Base Commission –
Paid direct by carrier
- AIM Marketing Override –
- Upon Individual Agreement
ï The compensation referenced above is for enrollment in a twelve (12) month period. Should a client not be eligible for the entire twelve (12) month period, Plan(s) may adjust compensation accordingly.
ï Broker understands that Health Plan(s) as deemed necessary may adjust payment amounts.
Broker will be notified of said changes in writing, via an amendment to this Agreement.
Disenrollment’s – Broker acknowledges that AIM payments from Plans are issued on a prospective basis. AIM shall charge back and offset against other compensation owed to Broker any payments made by Plan(s) for the sale or renewal of a Medicare Enrollee in accordance with Plan(s) policies.
II. Commission charge back or withholds – The following reasons will be cause for charge back or withholding of commissions.
ï Broker was not certified to sell plan and plan/marketing organization does not pay AIM .
ï Broker did not have and active Life/Health License.
ï Broker did not have an active E&O insurance policy with a minimum coverage of
ï CMS or Health Plan determines that member was not eligible for plan change.
ï Health Plan determines that enrollee is current member of plan and Health Plan does not pay for Plan to Plan transfer elections.
EXHIBIT B HIPAA
THIS ADDENDUM to The ANCILLARY SERVICES AGREEMENT is made and entered into by and between
(“Covered Entity”), AIM Insurance Service, collectively referred to as Business Associate (“Business Associate”), to be effective on
WHEREAS, Covered Entity and business Associate wish to amend. The Agreement to comply with the requirements of the Administrative Simplification provision of the Health Insurance portability and Accountability Act of 1996 and regulations promulgated Hereunder.
NOW, THEREFORE, in consideration of the mutual promises contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby Acknowledged, the parties agree as follows:
1.1 “Designated Record Set” shall mean “designated record set” as such term is defined in 45
CFD 164.501, which is stored on the system operated and maintained by Business Associate under the Agreement or otherwise in the possession of Business Associate or its subcontractors.
1.2 “Electronic Media” shall mean “electronic media” as much term is defined in 45 CFR Part
162.103, as amended.
1.3 “Federal Privacy Regulations” means the regulations contained in 45 CFR Parts 160 and
164, as amended.
1.4 “Federal Security Regulation” means the regulation contained in 45 CFR Part 142, as amended.
1.5 “Federal Transaction Regulations” mean the regulations contained in 45 CFR Parts 160 and
162, as amended.
1.6 “HIPAA” means the administrative simplifications section of the Health Insurance
Portability and Accountability Act of 1996, as codified at 42 U.S.C 130d through d-8.
1.7 “Protected Health Information” means collectively and protected health information, as defined in 45 CFR 164.501, as amended.
1.8 “Transaction” means the electronic transmission of certain health-care financial and administrative information as defined in 45 CFR 160.103, as amended.
1.9 “Workforce” shall mean “workforce” as such term is defined in 45 CFR 160. 103, as
2.1 Compliance. On the Effective Date, Business Associate agrees to Comply with the following:
2.2 USE of Protected Health Information. Business Associate shall not use any Protected Health Information other than as permitted by the addendum, as required to perform Business Associate’s obligations under the Agreement (to the extent that the Agreement does not conflict with this Addendum In which case this Addendum shall control) or as permitted by law, including without limitation the requirements of the Federal Privacy Regulations.
2.3 Disclosure of Protected Health Information.
23.1 Disclosure to Workforce. Business Associate may Disclose Protected Health Information to members of its Workforce solely for the purpose performing its obligation under the Agreement and for those purpose set forth herein and as necessary for the proper management and administration of the Business Associates shall take appropriate disciplinary action against any member of its Workforce who uses or discloses protected health Information in violation of this Addendum or Law.
2.3.2 Disclosure to Subcontractors. If Business Associates carries out any of its duties under the Agreement through a subcontractor which duties, by their nature, involve use, custody, disclosure, creation of or afford access to Protected Health Information, there shall be a written contract for such work and the contract shall contain clauses substantially identical to the restriction and conditions set forth herein.
2.3.3 Disclosure to the Third Party. Business Associates shall not disclose protected Health Information to any other person or entity (except as provided herein), or except as permitted by the Agreement, required by law or as approved by Covered Entity.
2.4 Minimum Necessary Disclosure and Use of Protected Health. Business Associate covenants to Covered Entity that or disclosing Protected Health Information as permitted or required by this Agreement, or this Agreement, or when requesting Protected health Information from Covered Entity to only use disclosed and requests the minimum necessary Protected Health Information to accomplish the intended purpose of the use, disclosure or request.
2.5 Access to Protect Health information and Designated record Sets. Upon Covered Entity’s request, Business Associate shall Provide copies to Covered Entity of all or a portion of the Protected Health information and Designated Records Sets then-currently in Business Associate possession, custody or Control (including Protected Health Information and
Designated Records Sets, if any, in the possession, custody or control of Business Associate’s subcontractor) in order for Covered Entity to:
(a) Make the Protected Health Information available in accordance with 45 CFR Part 164.524:
(b) Amend the Protected Health in accordance with 45 CFR Part 164.526. In the event an Individual request access to, or an amendment of, the protected health information such request shall be the responsibility of Covered entity. Business Associate shall not charge covered Entity additional fees for any request made under this Section 2.4
2.6 Accounting of Disclosure. Upon notice by Covered Entity to Business Associate that it has received a request for an Accounting of disclosure of Protected Health Information regarding and Individual during the six (6) years prior to the date on which the accounting was requested, not to exceed the effective date of the Federal Privacy Regulation, Business Associate shall make available to Covered Entity. Such information then-currently in Business Associate’s possession, custody or control (including such information, if any in the possession, custody or control of Business Associate’s subcontractors) that is required for Covered Entity to make the accounting required by 45 CFR Section 164.528.
2.7 Security. Provider internal Data Security, Business Associate will establish and maintain physical and electronic safeguards against the disclosure, destruction, loss or alteration of the Protected Health Information in the possession of Business Associate. At Covered Entity’ s request, Business Associate will disclose such safeguards to Covered Entity and its auditors for review and verification of compliance with terms of this Agreement. Business Associate will not:
(a) Make any use of copies of any Protected Health Information except as contemplated by this Agreement;
(b) Acquire any right or asset any lien against a Protected Health Information;
(c) refuses for any reason (including a default or material breach of the Agreement by Covered Entity) to provide any Covered entity Data to Covered Entity within (5) days after Covered Entity Data in a physically and electronically secure area. Business Associate will ensure that all Covered Entity Data will be segregated and Isolated from the information of all other customers of Business Associate.
2.8 Disclosure to U.S, Department of Health and Human Services. To the extent required by the Federal Privacy regulations, Business shall make its internal practice, books, and services relating to the use and disclosure of the Protected Health Information available to the Secretary of the Department of Health and Human Services (“Secretary”).
2.9 Federal Transaction Regulation and Federal Security Regulations. To the extent the Agreement involves the exchange of information using Electronic Media in a Transaction, Covered Entity and Business Associate agree to comply with the requirements contained in
45 CFR Part 162.915, as amended from time to time. Upon the effective Date and for so long as Protected Health Information is transmitted between the parties using Electronic Media, Business Associate shall protect the Integrity, privacy and availability of such Protected Health information by implementing appropriate and commercially reasonable administrative procedures, physical safeguards technical security services and technical security mechanisms with respect to Business Associate’s software and systems, all as required by, and more specifically set forth in, Federal transaction Regulations and the Federal Security Regulations.
2.10 Reporting: Mitigation of Improper disclosure. If Business Associate (including its permitted subcontractors, if any) becomes aware of any unauthorized disclosure of Protected Health Information by its Workforce, or subcontractor’s Workforce, Business Associate shall promptly report such information Covered Entity. Business Associate shall mitigate, to the extent practicable, any harmful effect that is known to Business Associate of use or disclosure of Protected Health information in violation of the requirements of this Addendum.
2.11 Waiver. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES OF ANY KIND OR NATURE, WHETHER SUCH LIABILITIES ASSERTED ON THE BASES OF CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THEIR POSSIBILITY OF SUCH LOSS OR DAMAGES BUSINESS ASSOCIATE’S AGGREGATE LIABILITY TO COMPANY UNDER THIS AGREEMENT (WHETHER UNDER CONTRACT, TORT OR ANY OTHER THEORY OF LAW OR EQUITY SHALL NOT EXCEED, UNDER ANY CIRCUMSTANCES, THE LESSER OF:
(A) THE FEES PAID BY COVERED ENTITY TO BUSINESS ASSOCIATE FOR THE PARTICULAR SERVICES RELATING TO THE BREACH OF THIS AGREEMENT FURNISHED BY BUSINESS ASSOCIATE DURING ONE YEAR PRECEDING COMPANY’S CLAIM; OR
(B) $10,000. THE FOREGOING LIMITATION OF LIEABILITY REPRESENTS THE ALLOCATION OF RISK OF FAILURE BETWEEN THE PARTIES AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. The section shall survive the termination or expiration of this Addendum.
2.12 Cooperation. Business Associate agrees to provide reasonable assistance and cooperation upon the request of Covered Entity in connection with any litigation against third parties to protect the Protected Health Information.
2.13 State Privacy Laws. Business Associate shall comply with California state privacy laws to the extent that such state privacy laws are not preempted by HIPAA.
III. TERMINATION; RETURN/DESTRUCTION OF PROTECTED HEALTH INFORMATION
Termination. Covered Entity may terminate this Addendum if Business Associate engages in a pattern of activity or practices that constitute a material breath in the performance of any of its duties or obligation under this Addendum and Business Associate does not take reasonable steps to cure the material breach within sixty (60) days after receiving written notice from Covered Entity specifying in detail the material breach.
Destruction of Protected Health Information. Upon termination of this Agreement, for any reason, Business Associate shall return or destroy all Protected Health Information received from Covered Entity, or created or received on behalf of Covered Entity. This provision shall also 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. In the event that Business Associate determines that returning or destroying all copies of the Protected Health Information is not feasible, Business Associate shall notify Covered Entity within five (5) days of the conditions that make return or destruction of the Protected Health Information not feasible. Upon mutual agreement of the parties that return or destruction of all copies of the Protected Health Information is not feasible, Business Associate shall extend the protections of this Addendum to such Protected Health Information which it has and limit further uses and disclosure of such Protected Health Information in accordance with the limitations and conditions of this Addendum, for so long as Business Associate maintains such Protected Health Information.
4.1 Audit. Covered Entity or its designee shall have the right, and at its expense during Business Associate’s normal business hours and with reasonable 53428.1 advance notice, to audit Business Associate’s and its subcontractor’s policies, procedures, books and record, systems and facilities, to determine compliance with requirements contained in this Addendum. Business Associate agrees to include a provision substantially similar to this Section in its agreement with its subcontractors.
4.2 HIPAA Amendments. The parties agree to take such action as is necessary to amend this Addendum from time to time as is necessary to Covered Entity to comply with the requirements of the Federal Privacy Rule, Federal Security Rule and Federal transaction Rule within ten (10) days prior to the effective date of the law at no additional cost to Covered Entity.
4.3 Conflict with Agreement Other Laws. In the event of any conflict between the terms of this Addendum and the terms of the Agreement, the terms of this Addendum shall control. All of the other terms and conditions contained in the Agreement and not specifically amended hereby remain in full force and effect. Nothing in this Addendum shall be construed to broaden Business Associate’s permitted uses and disclosures of Protected Health Information under the Agreement. Any ambiguity in this Addendum shall be resolved in favor of a meaning that permits Covered Entity and Federal Transaction Rule. To the extent that the Federal Privacy Regulations conflict with other laws, the determinations made by the Department of Health and Human Services under 45 CFR
160.201 through 160.205, as amended, shall determine which law controls. In the event that the Department of Health and Human Services has not made a determination of which controls, the more restrictive law shall control in accordance with the requirements of 45
CFR 160.201 through 160.205, as amended.
4.4 Miscellaneous. All notices, demands, requests and other communications or documents required or permitted to be provided under this Addendum shall be provided in the manner set forth in the Agreement to the addresses set forth in the Agreement. This Addendum may be executed in any number of counterparts, each of which shall be an original and all of which shall together constitute one agreement. Should any part of this Addendum be Invalid or unenforceable, such invalidity or unenforceability shall not affect the validity and enforceability of the remaining portions. Each Individual signing this Addendum warrants that such execution has been duly authorized by the party(s) for which he is signing. The execution and performance of this Addendum by each party has been duly authorized by all necessary corporate action, and this Addendum constitutes the valid and enforceable obligation of each party in accordance with its terms. This Addendum shall be construed in accordance with the laws of the State of California. This Addendum constitutes the entire agreement between the Parties and supersedes any prior understanding, agreements, or representations by or between the Parties, written or oral, to the extent that they relate in any way to the subject matter hereof. This Addendum may not be modified except in writing executed by the party to be charged. In the event of any conflict between the terms of this addendum and the terms of the Agreement, the terms of the Agreement shall control. To the extent the Federal Privacy Regulations conflict with other state privacy laws, the advisory opinions issued by the Department of Health and Human Services shall determine which law controls. In the event that the Department of Health and Human Services has not made a determination of which law controls, the more restrictive law shall control in accordance with the requirements of 45 CFR 160.201 through 160.205, as amended. This Agreement shall not confer any rights or remedies upon any person other than the Parties and their respective successors and permitted assigns. There are no third party beneficiaries to this Agreement.
EXHIBIT C MEDICARE GUIDELINES
By signing below, or in signature box electronically. Broker agrees that they have received a copy of the most current “CMS Medicare Sales and Marketing Guideline” and the relevant portions of the Medicare Managed Care Manual, which incorporates the “Must Use/Can’t Use/Can Use” guidelines. Broker understands that from time to time Medicare may modify these guidelines and Broker is responsible to obtain these revised guidelines and abide by all terms.