Terms and Conditions

of Use Agreement of HealthSplash, Inc., aka SplashMed, SplashRX and PMDRX/DMERX.com

PLEASE READ THE TERMS AND CONDITIONS OF USE CAREFULLY REGARDING THE USE OF THIS WEBSITE.

SplashMed, SplashRx, PMDRX.com and DMERX.com are the exclusive proprietary and intellectual property of HealthSplash, Inc. No part of this website, its contents, design, graphics or any other component of this site may be copied, modified, or reproduced in any way, or used by any business, person, corporation, or any other entity, without the expressed written consent of HealthSplash, Inc. The entirety of this website is protected under all applicable US and foreign copyright and intellectual property laws. By using this site, you the user are agreeing to comply with and be bound by these terms and conditions of use. After reviewing the following terms and conditions thoroughly, if you do not agree to these terms and conditions, you will be prohibited as a registered user of this site. If you agree to be bound by all conditions and terms of use of this website, you will so acknowledge this agreement by indication of your acceptance below where indicated.

No Governmental Agency Indemnification Required. There is no indemnification required of any U.S. Federal Governmental Agency, State, Municipality, County, or other U.S. Federal or U.S. State governing authority or representatives of those agencies.

Other User Indemnification. User agrees to defend and hold harmless, the officers, share-holders, partners, employees, and/or any other entity of HealthSplash, Inc., from any and all liability, loss, damages, claims or other expense, including any and all attorney or other legal fees, should such liability be incurred by any User as the result of the use of the PMDRX/DMERX.com website. Users of the PMDRX/DMERX.com website agree to abide by the statutes of governing regulatory authorities pertaining to the integrity of patient examination and documentation formulated herein.

1. HealthSplash, Inc. reserves the right to modify and change this website at any time, for any purpose, at its own discretion, as may be considered to be necessary; in order to maintain compliance with various Payer coverage guidelines and conditions or for any other purpose deemed necessary.
2. No part of this agreement is intended to convey that PMDRX.com is endorsed by or supported in any way by the Department of Health and Human Services or the Centers for Medicare and Medicaid Services. PMDRX/DMERX.com is an independent business entity that offers an online, web based, Electronic Documentation Technology that has been designed using the Centers for Medicare and Medicaid Services Documentation guidelines within the PMDRX/DMERX.com database.
3. HealthSplash, Inc. accepts no responsibility for the accuracy or integrity of the Patient examination data entered by any examining and documenting Clinician or other examiner. The accuracy of the examination data is the sole responsibility of the prescribing Clinician, or of a Physical Therapist when Physical Therapy evaluations are required. HealthSplash, Inc., is and shall remain at all times a neutral party in the Patient examination process. PMDRX/DMERX accepts no responsibility for any sanctions or liability incurred by a Prescribing Practitioner resulting from the use of the PMDRX/DMERX software platform. Further, HealthSplash, Inc. shall accept no responsibility for any documentation generated via this software service technology that is submitted by a Supplier User to the Centers for Medicare and Medicaid Services, or to any other Payer that is a part of a fraudulent claim for coverage of an assitive mobility, orthtic, or other DME device.
4. Access to PMDRX/DMERX.com by Suppliers, Prescribing Clinicians, or Therapist Users shall be via a secure login and password assigned to each individual User. HealthSplash, Inc. strictly prohibits and will accept no responsibility for any User who shall allow their Login or Password to be used by a non-authorized User. All Logins and Passwords are assigned to the User directly and it is that User’s responsibility to maintain the security and integrity of the Login ID and Password.
5. The use of PMDRX/DMERX.com for the illegal solicitation of orders for Durable Medical Equipment is strictly prohibited. Clients are responsible for assuring compliance with any regulatory requirements regarding solicitation of a Medicare beneficiary or other Payer. Any Client determined by HealthSplash, Inc. to have intentionally violated any regulatory authority regarding solicitation may have their subscription to PMDRX/DMERX.com terminated.
6. Medical information exchanged on this website shall be in accordance with Federal protections that have been established by the Health Insurance Portability and Accountability Act (HIPAA). Website secure encryption technology has been incorporated into this website to assure the highest levels of security and protection. Contained in these Terms and Conditions of Use is a required HIPAA Business Associate Agreement. By agreeing to these Terms and Conditions of use of this website, you are also agreeing to all Federal HIPAA rules. HealthSplash, Inc. shall accept no liability or responsibility for any Business Associate Users violation of the Federal Health Insurance Portability and Accountability Act.
7. Except as specifically stated in these Terms of Use or elsewhere on this website, or as otherwise required by applicable law, neither HealthSplash, Inc., nor its directors, employees, licensors, content providers, affiliates or other representatives will be liable for damages of any kind (including, without limitation, any lost profits, direct, indirect, compensatory, consequential, exemplary, special, incidental, or punitive damages) arising out of your use of, or your inability to use, or the performance of this website or the content whether or not we have been advised of the possibility of such damages. HealthSplash, Inc. shall not be liable for any Payer recovery of a payment made to a Supplier for a DME device resulting from the use of documentation from this website. All documentation should be thoroughly reviewed by the Supplier for accuracy and completeness prior to submission to a Payer. PMDRX/DMERX.com is not designed to force Patient qualification for a durable medical equipment device. PMDRX/DMERX.com assists Users in ascertaining that the documentation for a DME device is comprehensive and complete. It is the sole responsibility of the Supplier to determine if the Clinician produced PMDRX/DMERX.com documentation demonstrates true medical need in accordance with Payer guidelines.

Assessment Notification. This assessment tool has been created with information derived from Local and National Coverage Determinations, as well as other insurance guidelines in order to provide assistance to a clinician in completing an exam. It should not be considered a substitute for the clinician’s judgment.

Telehealth Prescribing. There are specific Federal and State guidelines established by the Centers for Medicare and Medicaid Services and other Commercial Insurance Payers, that may regulate where and under what circumstances a Telemedicine patient encounter is reimbursable. DMERX accepts no responsibility for determining whether a Telemedicine patient encounter and assessment was performed in compliance with those guidelines and regulations. It is the responsibility of the parties engaged in the encounter, whether Suppliers, Call Centers, Prescribers, or Telemedicine Organizations, to make their own determination if the encounter complies with regulatory requirements.

Electronic Signature Application. In order to electronically sign the completed documentation, examiners will be required to review the documents before signing and attest that they have personally performed the patient asessment. If prescribing an assitive mobility device, CMS requires an actual face-to-face encounter and examination of need for the Mobility Device. Prescribing examiners will also attest that completion of the assessment documentation is a true and accurate report of the prescribers assessment. The examining Practitioner will also be required to attest that the documentation of the examination will be entered into and become part of the patient’s medical record.

MUTUAL NON DISCLOSURE AGREEMENT

1. Confidential Information

“Confidential Information” means all information, whether written or oral, and in any form (including, without limitation, concept documentation and discussions, architectural documentation, solution engineering documents, research and development findings, manuals, reports, designs, drawings, plans, flowcharts, specifications, techniques, processes, software (in source or object code), program listings, data file printouts and prices, product information, new product plans, sales and marketing plans and/or programs, pricing information, customer lists and other customer information, financial information and employee files or other employee information) relating to Client or DMERX, which is disclosed between the Parties either directly or indirectly.

2. Limited Use of Confidential Information

The Companies agree to use Proprietary and/or Confidential Information received hereunder solely for the purpose of engaging in a business relationship and associated opportunities as the parties may agree to participate in together. The recipients agree to use the Confidential Information only to the extent necessary to engage in such opportunities.

3. Ownership of Confidential Information; Right to Disclose Confidential Information

All Confidential Information is, and shall remain, the property of the disclosing Parties. Nothing herein shall be construed as granting or conferring any rights by license or otherwise in the Confidential Information except as expressly provided herein. The Companies acquire hereunder only a limited right to use the Confidential Information solely for the purpose set forth in Section 2 above, subject to the terms and conditions of this Agreement. The Parties represent and warrant that, at the time of disclosure, the Parties mutually have the right to disclose the Confidential Information and that such disclosure does not violate the rights of any third party.

4. Obligation of Confidentiality

The Parties agree that, for a period of three (3) years from the receipt of Confidential Information hereunder, they each shall use the same degree of care and means that they utilize to protect their own information of a similar nature, but in any event not less than reasonable care and means, to prevent the unauthorized use or the disclosure of such Confidential Information to third parties. The Parties may not alter, decompile, disassemble, reverse engineer, or otherwise modify any Confidential Information received hereunder and the mingling of the Confidential Information between the Parties shall not affect the confidential nature or ownership of the same as stated hereunder.

5. Exceptions to Obligation of Confidentiality

This Agreement shall impose no obligation of confidentiality upon a recipient with respect to any portion of the Confidential Information received hereunder which is: (i) now or hereafter, through no unauthorized act or failure to act on each Parties part, in the public domain; (ii) known to the Parties without an obligation of confidentiality at the time the Parties receive the same from the disclosing party, as evidenced by written records; (iii) hereafter furnished to the Parties by a third party as a matter of right and without restriction on disclosure; or (iv) furnished to others by the Parties without restriction on disclosure. Nothing in this Agreement shall prevent the receiving party from disclosing Confidential Information to the extent the Company is legally compelled to do so by any governmental investigative or judicial agency pursuant to proceedings over which such agency has jurisdiction; provided, however, that prior to any such disclosure, the Parties shall (a) assert the confidential nature of the Confidential Information to the agency; (b) immediately notify the Parties in writing of the agency’s order or request to disclose; and (c) cooperate fully with each other in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of the compelled disclosure and protecting its confidentiality.

6. Term and Termination

6.1 This Agreement becomes effective as of the Effective Date and shall continue in effect for a period of three (3) years after termination. The obligations of confidentiality set forth hereunder shall survive such expiration or any earlier termination.

6.2 Upon the written request of the Parties to this Agreement, or upon the expiration or any earlier termination of this Agreement, the Parties shall promptly return all copies of the Confidential Information, each may have received from the other, in whatever form or media, or destroys the same. The Parties shall certify in writing to each other that such return or destruction occurred within ten (10) days thereafter.

7. No Warranty

The Parties make no warranty, express or implied, as to any Confidential Information that they may provide hereunder, including without limitation, as to the accuracy of the Confidential Information, as to whether any new products will be produced as disclosed, or as to the availability of product(s) on any specific date. The Parties at their sole discretion, may offer such products for sale and may modify them or discontinue sale at any time. The Parties have no obligation under this Agreement to purchase any service or item from each other.

8. Obligation Regarding Purpose of Disclosure

The Parties expressly agree that the receipt of confidential information hereunder, and discussions held in connection with the purpose set forth in Section 2 above, shall prevent the Parties from disclosing said Confidential Information to other third parties if each enters discussions with other third parties who provide similar services as the parties to this Agreement.

9. Non-Solicitation

9.1 The Parties have invested significant resources in the hiring, education, development, and training of its employees. Accordingly, the Parties agree that during the term of this Agreement, and for a period of twelve (12) months following the termination of this Agreement, Company will not directly or indirectly: (i) hire or employ any of the other Party’s employees or staff; (ii) hire or employ any former employee of the other Party, unless such former employee has not been employed by the other Party for at least twelve (12) months; (iii) make an offer to or solicit any of each Party’s employees to terminate their employment; or (iv) solicit or receive any services from any of the other Party’s employees.

9.2 The Parties agree that a breach of this provision may result in damages to the other Party that are difficult to ascertain with certainty. Accordingly, in the event of a breach of this provision, the Parties may have the right to: (a) apply for an injunction or other provisional remedy; and (b) receive fixed monetary damages for violation of this non-solicitation provision in the amount equal to the annual salary the Parties were paying to such employee(s) before a violation of this provision was discovered by damaged Party.

10. Severability; Waiver

If any part of this Agreement is held by a court of competent jurisdiction to be illegal or contrary to public policy or otherwise unenforceable, such invalid or unenforceable part shall be deemed modified or eliminated to the extent, which, in the court’s opinion, is necessary to make the remaining part(s) enforceable. The waiver by a party of any right hereunder will not be considered a waiver thereof unless expressly waived in a writing signed by the waiving party. No single waiver will be considered a continuing or subsequent waiver.

11. Equitable Remedies / Attorney’s Fees

The Parties agree that there is no adequate remedy at law for any breach of the obligations hereunder and upon any such breach or any threat thereof, the damaged Party shall be entitled to appropriate equitable relief, including injunctive relief in addition to whatever other remedies it might be entitled. In any action to enforce this Agreement, the prevailing party shall be entitled to recover its reasonable attorney’s fees, court costs and related expenses from the other party.

12. Miscellaneous

This Agreement is intended as the complete and exclusive agreement as to the protection of the Confidential Information disclosed hereunder and supersedes all prior proposals, discussions, agreements, or commitments, whether oral or written, between the Parties regarding such subject matter. This Agreement may only be modified in writing by authorized representatives of the Parties. This mutual non disclosure agreement shall be construed in accordance with, and all disputes hereunder shall be governed by, the laws of the State of Arizona without regard to choice of law provisions.

HIPAA BUSINESS ASSOCIATE AGREEMENT

This Business Associate Agreement, (“BA Agreement”), supplements and is made a part of the Terms and Conditions of Use Agreement by and between HealthSplash, Inc., AKA PMDRX/DMERX.com (“Covered Entity”) and Registered PMDRX/DMERX.com website Subscriber and/or User (“Business Associate”).

WHEREAS, Covered Entity and Business Associate are parties to the Agreement pursuant to which Covered Entity and Business Associate provide certain services and exchange of PHI to each other. In connection with Covered Entity and Business Associate’s services, Business Associate creates or receives 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. 104-191 (“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”).

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:

ARTICLE I
Definitions

1.1. 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.
1.2. Specific.
(a) Breach. “Breach” shall have the same meaning as the term “breach” in the HITECH Act, Section 13400(1).
(b) Electronic Health Record. “Electronic Health Record” shall have the same meaning as the term “electronic health record” in the HITECH Act, Section 13400(5).
(c) 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.
(d) 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).
(e) Privacy Rule. “Privacy Rule” shall mean the Standards for Privacy of Individually Identifiable Health Information at 45 CFR Part 160 and Part 164.
(f) 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.
(g) Required By Law. “Required by Law” shall have the same meaning as the term “required by law” in 45 CFR § 160.103.
(h) Secretary. “Secretary” shall mean the Secretary of the Department of Health and Human Services or his designee.
(i) Security Rule. “Security Rule” shall mean the Security Standards at 45 Part 160 and Part 164.
(j) 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. The Services Agreement is amended by and incorporates the terms of this BA Agreement.
(k) 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).

ARTICLE II
Obligations and Activities of Business Associate

2.1. Use and Disclosure. 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.
2.2. 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:
(a) 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;
(b) Ensure that any agent, including a subcontractor, to whom Business Associate provides Electronic Protected Health Information agrees to implement reasonable and appropriate safeguards to protect Electronic Protected Health Information; and
(c) Promptly report to Covered Entity any Security Incident of which Business Associate becomes aware. In addition, Business Associate agrees to promptly notify Covered Entity following the discovery of a Breach of Unsecured Protected Health Information. 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. Any notice of a Security Incident or Breach of Unsecured Protected Health Information shall include the identification of each Individual whose Protected Health Information has been, or is reasonably believed by Business Associate to have been, accessed, acquired, or disclosed during such Security Incident or Breach as well as any other relevant information regarding the Security Incident or Breach.
2.3. Reporting. Business Associate agrees to promptly report to Covered Entity any use or disclosure of Protected Health Information not permitted by this BA Agreement of which Business Associate becomes aware.
2.4. 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.
2.5. 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 to the same restrictions and conditions that apply through this BA Agreement to Business Associate with respect to such information.
2.6. 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, 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.
2.7. 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.
2.8. Access to Books and Records. Business Associate agrees to make its internal practices, books, and records, including policies and procedures and Protected Health Information, relating to the use and disclosure of Protected Health Information received from, or created or received by Business Associate on behalf of, Covered Entity available to the Covered Entity, or to the Secretary, in a time and manner designated by the Covered Entity or designated by the Secretary, for purposes of the Secretary determining Covered Entity’s compliance with the Privacy Rule.
2.9. 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.
2.10. 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(i) 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.

ARTICLE III
Permitted Uses and Disclosures by Business Associate

3.1. 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.
3.2. 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.
3.3. 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 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 the person notifies the Business Associate of any instances of which it is aware in which the confidentiality of the information has been breached.

ARTICLE IV
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.

ARTICLE V
Term and Termination

5.1. 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.
5.2. Termination for Cause. Upon Covered Entity’s knowledge of a material breach by Business Associate of the terms of this BA Agreement, Covered Entity shall either:
(a) 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: (i) this BA Agreement; (ii) all of the provisions of the Services Agreement that involve the use or disclosure of Protected Health Information; and (iii) such other provisions, if any, of the Services Agreement as Covered Entity designates in its sole discretion;
(b) If Business Associate has breached a material term of this BA Agreement and cure is not possible, immediately terminate: (i) this BA Agreement; (ii) all of the provisions of the Services Agreement that involve the use or disclosure of Protected Health Information; and (iii) such other provisions, if any, of the Services Agreement as Covered Entity designates in its sole discretion; or
(c) If neither termination nor cure are feasible, Covered Entity shall report the violation to the Secretary.
5.3. Effect of Termination.
(a) Except as provided in this Section 5, 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.
(b) In the event that Business Associate determines that returning or destroying the Protected Health Information is infeasible, Business Associate shall provide to Covered Entity notification of the conditions that make return or destruction infeasible. Upon mutual agreement of the Parties that return or destruction of 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.

ARTICLE VI
Indemnity

Business Associate agrees to indemnify, defend and hold harmless Covered Entity and its employees, directors/trustees, members, professional staff, representatives and agents (collectively, the “Indemnitees”) from and against any and all claims (whether in law or in equity), obligations, actions, causes of action, suits, debts, judgments, losses, fines, penalties, damages, expenses (including attorney’s fees), liabilities, lawsuits or costs incurred by the Indemnities which arise or result from a breach of the terms and conditions of this BA Agreement or a violation of HIPAA, the HITECH Act or HIPAA Regulations by Business Associate or its employees or agents. Business Associate’s indemnification obligations hereunder shall not be subject to any limitations of liability or remedies in the Service Agreement.

ARTICLE VII
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 agrees that such compliance shall be at its sole cost and expense, which expense shall not be passed on to Covered Entity in any form, including, but not limited to, increased fees. 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 7.

ARTICLE VIII
Miscellaneous

8.1. 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.
8.2. 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.
8.3. Survival. The respective rights and obligations of Business Associate under Sections 5.3 and Article VI of this BA Agreement shall survive the termination of the Services Agreement or this BA Agreement.
8.4. Interpretation. Any ambiguity in this Agreement shall be resolved to permit Covered Entity to comply with HIPAA, HIPAA Regulations and the HITECH Act.
8.5. Miscellaneous. The terms of this BA Agreement are hereby incorporated into the Services Agreement. Except as otherwise set forth in Section 8.4 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 Arizona, 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 Terms and Conditions of Use 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, or acknowledgement and acceptance of the Terms and Conditions of Use of the PMDRX/DMERX.com website by the BA 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.

Whereas, Business Associate and HealthSplash, Inc. mutually agree to the rules applicable to the sharing of HIPAA Information, and, whereas each agrees to the terms of this Business Associate Agreement. This Agreement is now entered into as a supplement to the terms and conditions of use of this website. This HIPAA Business Associate Agreement becomes enacted upon the acknowledgement and acceptance of the terms and conditions of use of this website.