Services Agreement

Take Command Insurance Agency, Inc. 

Updated as of 09/18/2024

This SERVICES AGREEMENT (the “Agreement”), dated as of today’s date (the “Effective Date”), by and between Take Command Insurance Agency, Inc, a Delaware limited liability company doing business as Take Command Health (including its successors and assigns, “TCH”), and your organization, (including its successors and assigns, “Client”).  TCH and Client shall collectively be referred to in this Agreement as the “Parties,” and each individually as a “Party”. 

WHEREAS, TCH is in the business of providing a software platform for the administration of HRA plans, assisting customers with the implementation of HRA benefits, and selling insurance; 

WHEREAS, Client is seeking consultation and assistance with its insurance products for its employees; and   

WHEREAS, TCH and Client desire to enter into this Agreement, which shall set forth the terms and conditions of the relationship between TCH and Client.   

NOW, THEREFORE, in consideration of the mutual covenants, agreements and promises herein contained and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows: 

Article I

DEFINITIONS 

For the purposes of this Agreement, the following terms shall have the following meanings and shall be equally applicable to the singular and plural forms:  

“Accounts” shall mean the Payment Account and Disbursement Account. 

“Affiliate” of a specified person, shall mean a person who, directly or indirectly, through one or more intermediaries controls, is controlled by, or is under common control with, such specified person.   

“Business Day” shall mean any day other than Saturday, Sunday or any other day on which TCH is closed for business.   

“Client Employee” means, with respect to any month, any individual that is employed by Client for any portion of such month and is eligible to participate in QSEHRA or ICHRA that is implemented by Client. 

“Confidential Information” shall mean all information and material of a Party or its Affiliates that (a) is or has been disclosed by such other Party or its Affiliates under or in connection with this Agreement, whether orally, electronically, in writing or otherwise, including copies, (b) is or has been learned, acquired, or generated by such Party in connection with this Agreement (including the terms of this Agreement) and/or (c) constitutes Nonpublic Personal Information. 

“Copyrights” shall mean United States and non-U.S. copyrights and mask works (as defined in 17 U.S.C. §901), whether registered or unregistered, and pending applications to register the same. 

“Data Protection Laws” shall mean any Law (including interpretations or enforcements of any Law) relating to data protection.   

“Disbursement Account” shall mean the Client bank account with TCH’s banking vending partner that is linked to Client’s Payment Account for the purposes set forth in this Agreement, including the provision of the Payment Services.  

“GLBA” shall mean the Gramm-Leach-Bliley Act of 1999 (or any successor U.S. federal Law).   

“Governmental Authority” shall mean any United States (federal, state or local) or foreign government, or governmental, regulatory, judicial or administrative authority, agency or commission or self-regulatory organization. 

“HIPAA” shall mean the Health Insurance Portability and Accountability Act of 1996 (or any successor U.S. federal Law). 

“HRA” shall mean a health reimbursement arrangement, and as used in this Agreement may refer to a QSEHRA or an ICHRA. 

“HRA Start Date” shall mean the date at which the Client’s HRA program is effective for their employees. 

“HRIS Integration Services” shall mean: (a) to facilitate the transfer of employee data between Take Command’s product and Client’s HRIS (i.e., roster management); (b) the facilitate the transfer of payroll data between Take Command product and Client’s payroll system as it relates to applicable reimbursements or withholdings specific to facilitating the Client’s HRA 

“Intellectual Property” shall mean Copyrights, Patent Rights, Trademarks and Trade Secrets. 

“Law” shall mean any and all domestic (federal, state or local) or foreign laws, statutes, rules, regulations, codes, ordinances, requirements or orders issued or imposed by any Governmental Authority or common law. 

“Nonpublic Personal Information” or “NPI” shall have the meaning ascribed to such term in Title V of the GLBA. 

“Order Form” shall mean the ordering document between the Parties which specifies certain terms regarding the TCH Services to be provided under this Agreement. The Order Form is incorporated into and is governed by the terms of this Agreement. For the sake of clarity, Order Form may include either a formal written ordering document or any forms or similar pages on the TCH platform that involve the input of information by Client. 

“Patent Rights” shall mean the United States and non-U.S. patents, provisional patent applications, patent applications, continuations, continuations-in-part, divisions, reissues, patent disclosures, industrial designs, inventions (whether or not patentable or reduced to practice) and improvements thereto. 

“Payment Account” shall mean the Client bank account designated by Client for the purposes set forth in this Agreement, including the provision of the Payment Services.  

“Payment Services” shall mean: (a) to pay insurance premiums, on behalf of Client Employees, through the automatic withdrawal by TCH (or the Payment Provider, as defined in Article II Section 1(e)) of funds in Client’s Payment Account to fund Client’s Disbursement Account and subsequent payment by TCH (or the Payment Provider) of such funds from the Disbursement Account to insurance carriers on behalf of Client Employees; (b) to provide such tracking and reporting assistance as reasonably requested; and (c) to provide Client a monthly recommendation regarding the amount of withholding from Client Employees’ wages to pay insurance premiums.  

“Person” shall mean any individual or entity.  

“Personnel” shall mean, with respect to any Party, the employees, officers, agents, independent contractors and consultants of (a) such Party, (b) the Affiliates of such Party and (c) any Third Parties engaged by such Party or its Affiliates to provide a Service. 

“Records” shall mean any documents, data or other information. 

“Services” shall mean the TCH Services or the Client Services, as applicable. 

“Software” shall mean computer software programs and software systems, including firmware, middleware, databases, compilations, tool sets, compilers, higher level or “proprietary” languages and related documentation, whether in source code, object code or human readable form. 

“Third Party” shall mean any Person other than TCH, the Client, and their respective Affiliates. 

“Third Party Claim” shall mean any action, suit, inquiry, hearing, charge, demand, proceeding, claim, arbitration, investigation or litigation, whether civil or criminal, at law or in equity or demand made or brought by a Third Party.int 

“Trade Secrets” shall mean trade secrets and confidential ideas, know-how, concepts, methods, processes, formulae, technology, algorithms, models, reports, data, customer lists, supplier lists, mailing lists, business plans and other proprietary information, in each case which derive economic value, actual or potential, from being maintained in confidence. 

“Trademarks” shall mean United States, state and non-U.S. trademarks, service marks, trade names, assumed names, Internet domain names, designs, logos, slogans and general intangibles of like nature, whether registered or unregistered, and pending registrations and applications to register the foregoing. 

“Vendor” shall mean the Payment Provider, a Third Party HRIS integration services provider or any other vendor used by TCH to assist in fulfilling its obligations under this Agreement. 

Article II

SERVICES 

11.1 TCH Services.

TCH shall provide, or shall cause its Affiliates or Vendors to provide, to the Client the following services (collectively, the “TCH Services”): 

1. TCH shall provide insurance consulting services to Client, for the goal of identifying and procuring employee insurance products that the Parties reasonably believe are appropriate for Client, based on Client’s business, budget, and objectives;  
   
2.  To the extent that Client elects to implement a qualified small employer health reimbursement arrangement, as defined in 26 U.S.C. § 9831(d) (“QSEHRA”), TCH shall provide to Client the following materials: (i) a QSEHRA plan document (the “QSEHRA Plan”); (ii) a draft resolution for Client to use to approve the QSEHRA Plan; (iii) a summary description of the QSEHRA Plan; (iv) forms and documents to be used by the Client to administer the QSEHRA Plan; and (v) other documents and materials that TCH reasonably determines may be useful for the operation and administration of the QSEHRA.
3. To the extent that Client elects to implement an independent individual coverage health reimbursement arrangement (“ICHRA”), TCH shall provide to Client the following materials: (i) an ICHRA plan document (the “ICHRA Plan”); (ii) a draft resolution for Client to use to approve the ICHRA Plan; (iii) a summary description of the ICHRA Plan; (iv) a Summary of Benefits and Coverage; (v) forms and documents to be used by the Client to administer the ICHRA Plan; and (vi) other documents and materials that TCH reasonably determines may be useful for the operation and administration of the ICHRA.
4. TCH shall perform the following services, as an authorized service provider to Client, the HRA administrator: (i) set up user accounts on the TCH platform for each Client; (ii) receive, store, and process all Client Employees documentation necessary for the administration of the HRA plan (iii) provide compliance reports and/or receipts for year-end reporting purposes, reports available upon request for up to 7 years from document generation
   
5. To the extent Client has elected to utilize TCH’s Payment Services, by execution of this Agreement, Client expressly authorizes TCH to: (i) to take such actions as are reasonably required to provide the Payment Services, including to use a Third Party payment services provider (“Payment Provider”) to provide back-end payment functions; and (ii) debit and credit the Client’s Payment Account and Client’s Disbursement Account as contemplated herein. The foregoing authorizations will remain in effect until sooner of the termination or expiration of this Agreement by its terms or upon written notice by Client at least 5 Business Days’ notice prior to the next scheduled applicable payment and or disbursement date referenced above that expressly references this Section and revokes such authorization. Client understands that as a part of this election, it must (i) follow any instructions related to the setup or ongoing maintenance of the Payment Services that TCH provides to Client with respect to the Payment Provider services and (ii) follow any instructions and guidance related to the setup or ongoing maintenance of the Payment Services from the Payment Provider in connection with its software and services. In the case of a returned or blocked debit transaction (i.e., an R29 event), Client is subject to a $250 penalty for the first occurrence. Further occurrences are subject to an increase in Client's Minimum Reserve Balance as described in Article V Section 1 and/or termination of your AutoPay service at Take Command’s discretion.
6. To the extent Client has elected to utilize TCH’s HRIS Integration Services, by execution of this Agreement, Client expressly authorizes TCH to: (i) to take such actions as are reasonably required to provide the HRIS Integration Services, including to use of a Vendor to provide back-end functions. The foregoing authorizations will remain in effect until sooner of the termination or expiration of this Agreement by its terms or upon written notice by Client revoking such authorization. Such notice must given at least 10 Business Days’ notice prior to the first of the next calendar month, at which time the revocation shall become effective. Client understands that as a part of this election, it must (i) follow any instructions related to the setup or ongoing maintenance of the HRIS Integration Services that TCH provides to Client with respect to the HRIS Integration Services and (ii) follow any instructions and guidance related to the setup or ongoing maintenance of the HRIS Integration Services from any applicable Vendor providing all or a portion of the HRIS Integration Services. 
7. In relation to the provision of the TCH Services under this Agreement, the Parties agree to comply with the terms of the HIPAA Business Associate Agreement attached hereto as Addendum A. 
8. Use of Vendors. In its provision of the TCH Services, TCH may use Vendors to assist in the provision of the TCH Services as it deems necessary in its sole discretion. This may include, but is not limited to, use of Vendors in connection with Payment Services and HRIS Integration Services. This Agreement does not require TCH to contract with any specific Vendors and does not prevent TCH from changing a Vendor during the Term.  
   

11.2 Client Services.  As a condition for the performance of the TCH Services, Client shall provide, or shall cause its Affiliates to provide, the following services (collectively, the “Client Services”): 

(a) To the extent that Client elects to implement an HRA, Client shall serve as the administrator and shall:  

1. Make the TCH online HRA signup product available to Client Employees;
2. Recommend to Client Employees the use of TCH’s online platform to procure individual insurance policies, except to the extent that Client, or a third party on behalf of Client, manages the individual insurance enrollment process for Client Employees; 
3. Provide TCH with Client Employee contact information, and facilitate TCH’s contacting of Client Employees to send relevant HRA and health insurance information; 
4. Notify TCH in the event that any new Client Employees are hired or existing Client Employees are fired, terminated, or otherwise leave their employment with Client within thirty (30) days; and 
5. To the extent that Client uses Payment Provider Services, Client shall: 
6. Make sufficient funds available to fund insurance premiums for Client Employees participating in Payment Services, by the 14th day of every calendar month. 
   
7. Allow TCH access to the Accounts to withdraw such available funds on or prior to the 15th of every month. 
8. Provide any additional written authorization reasonably requested to permit TCH to withdraw additional funds from the Accounts on an ad hoc basis. 
   

11.3 Standard of Performance.

All Services shall be provided using reasonable efforts, skill and judgment, in a manner consistent with current practices as of the Effective Date. 

11.4 Cooperation.

1. Each Party shall cooperate, or shall cause its Affiliates and use commercially reasonable efforts to cause its Third Party service providers to cooperate, with the other Party in all matters relating to the provision and receipt of the Services and to minimize the expense, distraction and disturbance to each Party, and shall perform all obligations hereunder in good faith and in accordance with principles of fair dealing and in compliance with all applicable Laws.   
   
2. Each Party shall use commercially reasonable efforts to provide information and documentation sufficient for the other Party to perform the Services, as applicable, in the manner provided as of the Effective Date, and will use commercially reasonable efforts to make available, as reasonably requested by the other Party, sufficient resources and timely decisions, approvals and acceptances in order that the other Party may perform its obligations under this Agreement in a timely and efficient manner. 
3. Client shall use commercially reasonable efforts to consult with TCH, as reasonably requested by TCH, regarding compliance with applicable Laws (including changes in Laws).  

 Article III
REPRESENTATIONS AND WARRANTIES; ADDITIONAL COVENANTS AND AGREEMENTS 

111.1 Representations.  Each Party hereto represents and warrants to the other Party as of the Effective Date that: (a) it has the full power and authority to enter into this Agreement and to grant the rights granted herein; (ii) the execution of this Agreement does not breach any contract or agreement, oral or written, of such Party, nor will the same violate any duty or obligation such Parties has to any Third Party; and (iii) such Party is in compliance with all applicable Laws, and entering into this Agreement shall not cause or constitute a violation of any Law.

 
111.2 No Insurance Plan.  Client acknowledges and agrees TCH does not provide insurance to Client Employees and is not an insurance carrier or underwriter, and Client Employees are each individually responsible for procuring their own insurance plan, which may be through TCH’s online platform or another source. Client acknowledges and agrees that TCH is only responsible for the provision of administrative services as described in this Agreement, and that TCH is not responsible for the servicing of any insurance plan. Client acknowledges and agrees that TCH cannot guarantee the issuance of any particular insurance plan to a Client Employee and that TCH is not responsible for any errors or delays on the part of the Client Employee and/or insurance carrier issuing the insurance plan to a Client Employee. Client acknowledges and agrees that other than TCH’s own internal cost to provide the TCH Services, TCH is not responsible or liable for costs to pay claims or any other costs associated with administration of the HRA. 

111.3 Compliance With Plan Documentation.  Client agrees to abide by the terms and conditions of any plan documents that TCH delivers to Client under this Agreement and that Client executes. 

111.4 General Limitations. In no event shall either Party be obligated to maintain the employment of any specific employee in connection with its obligations hereunder. 

111.5 Third Party Limitations.  Client acknowledges and agrees that the Payment Provider Services and HRIS Integration Services are subject to the terms and conditions of any applicable agreements that TCH has with  applicable Vendors. These Vendors may require Client to agree to certain terms and conditions related to Client’s election to receive such services. Client is responsible for the accuracy of all information shared with the Vendor for the provision of the elected services, including, but not limited to, employee information, Client payroll information and Client bank account information. TCH makes no representations or warranties regarding the service of Vendors. 

111.6 Compliance with Laws.   

1. Each Party shall comply with applicable Law in the performance of the Services.  Neither Party shall provide, or cause to be provided, any Service to the extent that the provision of such Service would require, or could reasonably be expected to require, such Party, any of its Affiliates or any of its or their respective officers, directors, employees, agents or representatives to violate (a) any Law, or (b) any policies and/or procedures of such Party designed to respond to a Law, to a new legal or regulatory issue or to a security threat.  
   
2. TCH shall approve or disapprove requests for all medical expense reimbursements under the HRA in accordance with 26 U.S.C. § 213(d) and applicable Internal Revenue Service guidance unless Client has otherwise directed TCH in writing.  Client agrees that TCH is not liable for any loss in connection with TCH’s actions directly or indirectly relating to the approval or disapproval of medical expense reimbursement requests made by TCH in accordance with federal tax law or any alternative directions provided by Client.  Client agrees to indemnify and hold harmless TCH and its directors, officers, employees and agents (the “Indemnified Parties”) from and against all amounts, including without limitation, taxes, expenses (including reasonable attorneys’ fees), liabilities, claims, damages, actions, suits, regulatory fines or other charges incurred by or assessed against any of the Indemnified Parties as a direct or indirect result of TCH’s approval or disapproval of medical expense reimbursement requests made by TCH in accordance with this Section III.6(b). 

111.7 Force Majeure.

1. The Parties shall use commercially reasonable efforts to provide, or cause to be provided, the Services without interruption.  If any Party providing, or causing to be provided, Services is wholly or partially prevented from, or delayed in, providing one or more Services, or one or more Services are interrupted or suspended, by reason of events beyond its reasonable control (including acts of God, fires, explosions, accidents, floods, earthquakes, embargoes, epidemics, war, acts of terrorism, and/or nuclear disaster) (each, a “Force Majeure Event”), such Party shall not be liable for any failure to deliver the affected Services during such period, and the Party that would have received such Services shall not be obligated to pay for any Services not delivered. 
2. As soon as reasonably practicable after the occurrence of a Force Majeure Event, the affected Party shall promptly give written notice to the other Party of the Force Majeure Event.  The duties and obligations of such Party hereunder shall be tolled for the duration of the Force Majeure Event to the extent that the Force Majeure Event prevents such Party from performing its duties and obligations hereunder. 
   
3. During the duration of a Force Majeure Event, the affected Party shall use commercially reasonable efforts to avoid or remove such Force Majeure Event, and shall use commercially reasonable efforts to resume its performance under this Agreement with the least practicable delay.  From and during the occurrence of a Force Majeure Event, the other Party may replace the affected Services by providing such Services for itself or engaging a Third Party to provide such Services, at such other Party’s sole cost.   

Article IV

PAYMENT 

IV.1 Fees. 

1. In consideration for the TCH Services, Client shall pay to TCH the following fees set forth in the Order Form(i) a per Client Employee per month service fee and (ii) a platform fee per month, both charged from the Client’s HRA Start Date onward (collectively, the “Fees”). 
   
2. The Client shall have the right to request (in writing) that TCH add an additional pass-through fee to the service fee described in Section 4.1(a)(i) on behalf of their benefits agent, broker, or consultant. 
3. If Client has enrolled with TCH as part of a special program, Client may be responsible for a monthly minimum fee as established by that special program.  Such minimum shall be agreed to in writing (or email) between both parties. 

IV.2 Billing and Payment Terms. 

1. TCH shall invoice the Client monthly, in advance of the provision of TCH Services for such month, and TCH shall have the right to automatically withdraw such invoiced amounts from Client’s Payment Account upon creation of the applicable invoice.  Client shall pay all invoices to TCH in U.S. dollars. An active payment method must be on file to start and continue access to TCH Services.   
2. If any invoice or portion of an invoice is not paid in full within thirty (30) days after the date of the invoice, TCH shall have the right to charge interest, which shall accrue at the lower of:  (i) one and one-half percent (1.5%) per month, or (ii) the highest rate allowed under any Law.  In addition, Client shall reimburse TCH for reasonable out of pocket costs actually incurred in connection with the collection of overdue amounts, including reasonable attorneys’ fees. If Client is more than thirty (30) days delinquent in paying an invoice to TCH, TCH may suspend Client’s access to TCH Services until such time as all invoices which are more than thirty (30) days delinquent have been paid. 
   

IV.3 Taxes. 

Take Command reserves the right to charge sales tax in compliance with applicable laws. If Client is exempt from paying those Taxes, Client may provide TCH with an original certificate that satisfies applicable legal requirements attesting to its tax-exempt status, in which case TCH will not charge the Taxes covered by the certificate. Client must provide accurate information regarding its tax affairs as TCH reasonably requests. 

Article V
ACCOUNT REQUIREMENTS 

V.1 Minimum Account Balance.  In order to ensure access to care for employees and avoid insufficient funds, Clients that use Payment Services shall be required to maintain a minimum balance in their Disbursement Account. At all times, Client shall maintain funds in the Disbursement Account equal to the Minimum Reserve Balance.  In the event the actual balance in the Disbursement Account is less than the Minimum Reserve Balance, TCH has the right to pull funding from the Payment Account, or require Client to deposit, into the Disbursement Account an amount equal to the difference between the Minimum Reserve Balance and the actual balance in the Disbursement Account.  For purposes of this Agreement, “Minimum Reserve Balance” means an amount calculated from time to time by TCH, in its sole discretion, based on number of Client employees, regionality, and the average premium amount, as such amount is communicated by TCH to Client. TCH may change the Minimum Reserve Balance from time to time in its sole discretion as it deems necessary to ensure access to care for employees and avoid insufficient funds. Any such changes shall be communicated to Client in advance. 

V.2 Security Interest.  To secure all Client’s obligations under this Agreement, Client hereby grants TCH a security interest in the Disbursement Account and the funds therein or proceeds thereof and agrees to take such steps as TCH may reasonably require perfecting or protect such priority security interest.  Client represents, as of the date of the Agreement, that the Disbursement Account is not subject to any claim, lien, security interest or encumbrance (other than the interest of TCH).  Client shall not allow any other person to have any claim, lien, security interest, or encumbrance on the Disbursement Account.  TCH shall have all of the rights and remedies of a secured party under applicable Law with respect to the Disbursement Account and the funds therein or proceeds thereof and shall be entitled to exercise those rights and remedies in its discretion.   

V.3 Interest.  Funds in the Disbursement Account shall not bear interest. 

Article VI
TERM AND TERMINATION 

V1.1 Term of Agreement. 

This Agreement shall become effective on the Effective Date and shall be effective until such date as the Order Form between the Parties has expired or has been terminated in accordance with its terms or with this Article VI. The period of effectiveness of the Order Form shall be referred to herein as the “Term.” 

V1.2 Effect of Termination 

 If this Agreement is terminated for any reason: 

1. Each Party agrees and acknowledges that the obligations of such Party to provide the Services, or to cause the Services to be provided, hereunder shall immediately cease.   
2. The obligations under Article IV to pay the applicable Fees for Services provided prior to the effective date of termination or expiration shall survive the expiration or termination of this Agreement for any reason. 

V1.3 Amendment. Except for a change to the Order Form, which must be upon the mutual agreement of the Parties as described therein, TCH has the discretion to revise this Services Agreement upon thirty (30) days prior written notice to Client. The updated Services Agreement shall be posted online at this web address. The notice to Client shall include an electronic acknowledgement; failure by Client to complete the electronic acknowledgement within the thirty (30) day notice period shall be deemed to constitute completion of the electronic acknowledgement by Client. 

Article VII
MISCELLANEOUS 

VII.1 Notices. 

All notices, demands and other communications required or permitted to be given to any Party under this Agreement shall be in writing and any such notice, demand or other communication shall be deemed to have been duly given when delivered by hand, courier or overnight delivery service or, if mailed, two Business Days after deposit in the mail, certified or registered mail, return receipt requested and with first-class postage prepaid, or in the case of facsimile notice, when sent and transmission is confirmed, and, regardless of method, addressed to the Party at its address, facsimile number or e-mail address (or at such other address, facsimile number or e-mail address as the Party shall furnish the other Party in accordance with this Section 6.1): 

1. If to TCH: 
   Take Command Insurance Agency, Inc. 
   1410 E Renner Rd 
   Suite 200 
   Richardson, TX 75082 
   notices@takecommandhealth.com 
2. If to Client, using the contact information set forth in Client’s signature to the Order Form. 

VII.2 Governing Law. 

This Agreement shall be governed by and construed in accordance with the laws of the State of Texas, other than any principle of conflict or choice of laws that would cause the application of the laws of any other jurisdiction. 

ADDENDUM A 

BUSINESS ASSOCIATE AGREEMENT 

This Business Associate Agreement (“BAA”) is made and entered into by and between TCH (“Business Associate”) and Client on behalf of itself and as a plan sponsor of one or more group health plans (the Covered Entity) (collectively, “Client”). This BAA is effective as of the Effective Date of the Agreement (as defined below). Because Business Associate may be considered a business associate of Client under HIPAA (defined below) in its provision of plan administrative services, the terms of this BAA will govern the sharing and use of PHI (defined below) by the parties. 

RECITALS 

WHEREAS, Business Associate may be acting as a business associate to Client under the Standards for Privacy of Individually Identifiable Health Information under the Health Insurance Portability and Accountability Act of 1996, as amended and implemented by regulations (“HIPAA Regulations”) and other guidance, including the Health Information Technology for Economic and Clinical Health Act (“HITECH”) (collectively referred to as “HIPAA”), and Client and Business Associate are obliged to comply with certain requirements set forth in HIPAA;  

WHEREAS, Business Associate and Client have entered into a Services Agreement (“Agreement”) pursuant to which Business Associate provides certain plan administrative services described in the Agreement for the benefit of Client’s employees and dependents;  

WHEREAS, in the course of providing the Services, Business Associate may receive, host, create, use and/or transmit Protected Health Information (“PHI”);  

WHEREAS, this BAA sets forth the terms and conditions pursuant to which PHI will be handled between Business Associate and Client during the term of this BAA. 

NOW, THEREFORE, in consideration of the mutual promises below, and the exchange of PHI contemplated by this BAA, Business Associate and Client agree as follows: 

DEFINITIONS 

The following terms will have the meanings set forth below.  Capitalized terms used in this BAA not otherwise defined will have the meanings ascribed to them in the HIPAA Regulations. 

“Breach” will have the meaning given under 45 C.F.R. § 164.402. 

“Designated Record Set” will have the meaning given under 45 C.F.R. § 164.501.   

“Disclose” and “Disclosure” mean, with respect to PHI, the release, transfer, provision of access to, or divulging in any other manner of PHI outside of Business Associate or to other than member of its Workforce, as set forth in 45 C.F.R. § 160.103. 

“Electronic PHI” or “e-PHI” means PHI that is transmitted or maintained in electronic media, as set forth in 45 C.F.R. § 160.103. 

“Protected Health Information” and “PHI” mean any information, whether oral or recorded in any form or medium, provided by Client to Business Associate, that: (a) relates to the past, present or future physical or mental health or condition of an individual; the provision of health care to an individual, or the past, present or future payment for the provision of health care to an individual; (b) identifies the individual (or for which there is a reasonable basis for believing that the information can be used to identify the individual); and (c) will have the meaning given to such term under 45 C.F.R. § 160.103.  Protected Health Information includes e-PHI. 

“Required by Law” will have the meaning given under 45 C.F.R. § 160.103. 

“Security Incident” will have the meaning given under 45 C.F.R. § 164.304.   

“Services” means the services for or functions on behalf of Client performed by Business Associate pursuant to the Agreement that constitute a Business Associate relationship, as set forth in 45 C.F.R. § 160.103. 

“Unsecured PHI” will have the meaning given under 42 U.S.C. § 17932(h), 45 C.F.R. § 164.402, and guidance issued pursuant to the HITECH Act including, but not limited to the guidance issued on April 17, 2009 and published in 74 Federal Register 19006 (April 27, 2009) by the Secretary. 

“Use” or “Uses” mean, with respect to PHI, the sharing, employment, application, utilization, examination or analysis of such PHI within Business Associate’s internal operations, as set forth in 45 C.F.R. § 160.103.  

“Workforce” will have the meaning given under 45 C.F.R. § 160.103. 

OBLIGATIONS OF BUSINESS ASSOCIATE 

2.1. Permitted Uses and Disclosures of Protected Health Information.  Business Associate will not Use or Disclose PHI received, accessed, maintained, or created for or on behalf of Client except to perform the Services required by the Agreement, or as permitted by this BAA or Required by Law.  Business Associate will not Use or Disclose PHI in any manner that would constitute a violation of the HIPAA Regulations if so Used or Disclosed by Client. Without limiting the generality of the prior sentences, Business Associate is permitted to (i) Use PHI for the proper management and administration of Business Associate; (ii) Use and Disclose PHI to carry out the legal responsibilities of Business Associate, provided that with respect to any such Disclosure either: (a) the Disclosure is Required by Law; or (b) Business Associate obtains an agreement from the person to whom the PHI is to be Disclosed that such person will hold the PHI in confidence and will not Use and further Disclose such PHI except as Required by Law and for the purpose(s) for which it was Disclosed by Business Associate to such person, and that such person will notify Business Associate of any instances of which it is aware in which the confidentiality of the PHI has been breached; (iii) Use PHI for Data Aggregation purposes in connection with the Health Care Operations of Client; and (iv) Use PHI for purposes of de-identification of the PHI. 

2.2. Adequate Safeguards of PHI.  Business Associate will comply with Subpart C of 45 C.F.R. Part 164 with respect to PHI, to reasonably and appropriately protect the confidentially, integrity, and availability of e-PHI that it creates, receives, maintains or transmits on behalf of Client.   

2.3. 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 PHI by Business Associate in violation of the requirements of this BAA. 

2.4. Reporting Security Incidents and Non-Permitted Uses or Disclosures. 

Business Associate will notify Client of any Use or Disclosure by Business Associate or its Subcontractors that is not specifically permitted by this BAA without unreasonable delay but no later than thirty (30) calendar days after becoming aware of such Security Incident or non-permitted Use or Disclosure, in accordance with the notice provisions set forth in this BAA.  Business Associate and Client acknowledge the ongoing existence and occurrence of attempted but ineffective Security Incidents that are trivial in nature, such as pings and other broadcast service attacks, and Client acknowledges and agrees that no additional notification to Client of such ineffective Security Incidents is required, as long as no such incident results in unauthorized access, Use or Disclosure of PHI.  If Business Associate determines that a Breach of Unsecured PHI has occurred, Business Associate will provide a written report to Client without unreasonable delay but no later than thirty (30) calendar days after discovery of the Breach. To the extent that information is available to Business Associate, Business Associate’s written report to Client will be in accordance with 45 C.F.R. § 164.410(c).  

2.5. Delegated Responsibilities.  To the extent that Business Associate carries out one or more of Client’s obligations under Subpart E of 45 C.F.R. Part 164, Business Associate must comply with the requirements of Subpart E that apply to Covered Entities in the performance of such obligations.   

2.6. Availability of Internal Practices, Books, and Records to Government.  Business Associate agrees to make its internal practices, books and records relating to the Use and Disclosure of Client’s PHI available to the Secretary for purposes of determining Client’s compliance with HIPAA, the HIPAA Regulations, and the HITECH Act.   

2.7. Access to and Amendment of Protected Health Information.  To the extent that Business Associate maintains a Designated Record Set on behalf of Client, Business Associate will make the PHI it maintains (or which is maintained by its Subcontractors) in such Designated Record Set available to Client for inspection and copying to enable Client to fulfill its obligations under 45 C.F.R. § 164.524 within thirty  (30) business days of a request by Client. To the extent that Business Associate maintains a Designated Record Set on behalf of Client, Business Associate will amend the PHI it maintains (or which is maintained by its Subcontractors) in such Designated Record Sets to enable Client to fulfill its obligations under 45 C.F.R. § 164.524(c)(2) within thirty (30) business days of a request by Client. 

2.8. Accounting.  To the extent that Business Associate maintains a Designated Record Set on behalf of Client, within thirty (30) calendar days of receipt of a request from Client or an individual for an accounting of disclosures of PHI, Business Associate and its Subcontractors will make available to Client the information required to provide an accounting of disclosures to enable Client to fulfill its obligations under 45 C.F.R. § 164.528.   

2.9. Use of Subcontractors.  Business Associate will require each of its Subcontractors that creates, receives, maintains, or transmits PHI on behalf of Business Associate, to execute a written agreement that includes substantially the same restrictions and conditions that apply to Business Associate under this BAA with respect to PHI. 

2.10. Minimum Necessary.  Business Associate (and its Subcontractors) will, to the extent practicable, limit its request, Use, or Disclosure of

PHI to the minimum amount of PHI necessary to accomplish the purpose of the request, Use or Disclosure, in accordance with 42 U.S.C. § 17935(b) and 45 C.F.R. § 164.502(b)(1) and any other applicable guidance. 

TERM AND TERMINATION 

3.1. Term.  Subject to the provisions of Section 3.2, the term of this BAA will be effective as of the Effective Date and will terminate as of the date that all of the PHI provided by Client to Business Associate, or created or received by Business Associate on behalf of Client is destroyed or returned to Client, or if it is infeasible to return or destroy the PHI, protections are extended to such information.   

3.2. Termination for Cause.  In addition to and notwithstanding the termination provisions set forth in the Agreement, upon Client’s or Business Associate’s knowledge of a material breach or violation of this BAA by the other Party, the non-breaching Party will either: (a) Notify the breaching Party of the breach in writing, and provide an opportunity for the breaching Party to cure the breach or end the violation within ninety (90) calendar days of such notification; provided that if the breaching Party fails to cure the breach or end the violation within such time period non-breaching Party may immediately terminate this BAA and the Agreement upon written notice to the breaching Party; or (b) Upon thirty (30) calendar days written notice to breaching Party, immediately terminate this BAA and the Agreement if the non-breaching Party determines that such breach cannot be cured. 

3.3. Disposition of Protected Health Information Upon Termination.  Upon termination or expiration of this BAA, Business Associate will either return or destroy all PHI received from, or created or received by Business Associate on behalf of Client, that Business Associate still maintains in any form and retain no copies of such PHI.  If return or destruction is not feasible, Business Associate will continue to extend the protections of this BAA to the PHI for as long as Business Associate retains the PHI and limit further Uses and Disclosures of such PHI to those purposes that make the return or destruction of the PHI infeasible. 

MISCELLANEOUS 

4.1. Amendment to Comply with Law.  This BAA will be deemed amended to incorporate any mandatory obligations of Client or Business Associate under HIPAA.  Additionally, the Parties agree to take such action as is necessary to amend this BAA from time to time as necessary for Client or Business Associate to implement its obligations pursuant to HIPAA. 

4.2. Relationship to Agreement Provisions.  If a provision of this BAA is contrary to a provision of the Agreement, the provision of this BAA will control.  Otherwise, this BAA will be construed under, and in accordance with, the terms of the Agreement, and will be considered an amendment of and supplement to the Agreement. 

4.3. Notices.  Any notices or communications to be provided under this BAA shall be provided in accordance with Section 6.1 of the Agreement. 

4.4. Relationship of Parties.  Notwithstanding anything to the contrary in the Agreement, Business Associate is an independent contractor and not an agent of Client under this BAA.  Business Associate has the sole right and obligation to supervise, manage, contract, direct, procure, perform or cause to be performed all Business Associate obligations under this BAA. 

4.5. Interpretation.  This BAA will be interpreted as broadly as necessary to implement and comply with HIPAA, the HIPAA Regulations, and the HITECH Act.  The parties agree that any ambiguity in this BAA will be resolved in favor of a meaning that complies with such laws. 

4.6. No Third Party Beneficiaries.  Nothing express or implied in this BAA is intended to confer, nor will anything in this BAA confer, upon any person other than the Parties and the respective successors or assigns of the Parties, any rights, remedies, obligations, or liabilities whatsoever. 

4.7. Choice of Law.  This BAA will be governed by the laws of the State of Texas regardless of the choice of law rules of any jurisdiction. 

The Parties hereto have executed this BAA as of the Effective Date. 

Take Command Insurance Agency, Inc.
1410 Renner E. Rd., Suite 200 Richardson, TX 75082

(214) 866-7757

notices@takecommandhealth.com