MASTER LICENSING & SERVICES AGREEMENT

ARTICLE 1. DEFINITIONS

The above preamble and recitals (including the definitions) are incorporated by reference into this agreement. The following additional terms, as used in this Master Agreement, are defined as follows:

1.1     “Affiliate” means, with respect to any person or entity, another person or entity that directly or indirectly, through one or more intermediaries, Controls, is Controlled by, or is under common Control with such specified person or entity.

1.2     “Confidential Information” means all data and information, whether oral or written, in whatever form (including but not limited to physical, electronic, or digital), that is a trade secret under applicable law or that meets all of the following elements: (a) it relates to a Party’s business; (b) it was disclosed to the other Party or of which such other Party became aware of as a consequence of its relationship with the owning Party; (c) it is of value to the owning Party; (d) it is not generally known to the owning Party’s competitors; and (e) it includes trade secrets, methods of operation, names of customers or potential customers, names of suppliers or potential suppliers, price lists, financial information and projections, financial plans, product plans, business plans, route books, personnel data, software, software architecture and logic, technical and non-technical data, formulas, hardware and software designs, patterns, compilations, programs, devices, models, methods, techniques, drawings, processes, copyrighted materials, and similar information; provided, however, Confidential Information shall not include information that (i) has been voluntarily disclosed to the public by the owning Party (other than as protected by copyright or patent laws); or (ii) has been independently developed and disclosed by others; or (iii) has otherwise entered the public domain through lawful means.

1.3     “Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a person or entity, whether through the ability to exercise voting power, by board control, by contract, or otherwise.

1.4     “Fees” means the Initial Fee and the License Fees as defined in Exhibit B.

1.5     “Joi Notice Address” means 45 Technology Pkwy South, Suite 225, Peachtree Corners, GA 30092 or such other mailing address for notice that Joi gives Practice notice of from time to time in accordance with this Master Agreement

1.6     “Licensed Services” means the provision of medical services by Practice and Practice Practitioners to its patents at the Practice Location.

1.7     “Joi Logo” collectively means Joi’s name, Joi’s logo, the RxHarmony™ name, and the RxHarmony™ logo as altered by Joi from time to time.

1.8      “Opening Date” means the date that Joi training (as required by Section 3.14) is completed by Practice and the initial Practice Practitioners, which date will be no later than 14 calendar days after the Effective Date.

1.9     “Patient” means a patient of the Practice or of any Practice Practitioner.

1.10   “Practice Location” means the office address(es) of the Practice as identified in the attached Schedule

1.10 and any replacement locations (including any additional new Practice Locations, all of which requires prior written notice to Joi in accordance with Section 13.5, where Practice shall render the Services to its Patients on a full-time basis.

1.11   “Practice Notice Address” means (refer to Schedule 1.10 Practice Locations) or such other mailing address for notice that Practice gives Joi notice of from time to time in accordance with this Master Agreement.

1.12   “Practice Practitioner” means a physician, nurse practitioner, or physician assistant duly licensed to practice medicine or nursing, as applicable, in the State, who is engaged by the Practice to provide medical services to Patients, including the Services, and who has agreed to be governed and abide by the terms of this Master Agreement as an employee or contractor of Practice.

1.13   “Program Guidelines” means the rules, policies, protocols, and procedures of Joi and the content thereof, including but not limited to rules, policies, protocols, processes, and procedures regarding the administration and supervision of the Joi’s hormone replacement treatment and related services program, as amended and revised from time to time by Joi in its safe discretion subject to and as described in Section 4.1.

1.14   “Services” means medically supervised related services conducted utilizing the proprietary Intellectual Property pursuant to the RxHarmony™ Program.

1.15   “State” means the State of Georgia, and “States” means the States of United States of America.

1.16   “Term” means the time beginning on the Effective Date and ending when this Master Agreement is terminated in accordance with its terms.

1.17   “Website” means the proprietary website developed to support the Services and made available to the Practice by Joi, subject to all terms and conditions set forth in this Master Agreement, which website will have the URL assigned by Joi from time to time.

ARTICLE 2. INTELLECTUAL PROPERTY RIGHTS

2.1 License Grant. Joi hereby grants to Practice for the Term the non-exclusive right and license to use the Intellectual Property to provide the Licensed Services to its Patients at its Practice Location. This non­exclusive sublicense shall not extend to any other use, service, product, or location and does not include any right to sublicense the Intellectual Property to anyone.

2.2 Sublicense Grant. Joi hereby grants to Practice for the Term the non-exclusive right and sublicense to use the Software to provide the Licensed Services to its Patients at its Practice Location. This non­-exclusive sublicense shall not extend to any other use, service, product, or location and does not include any right to sublicense the Intellectual Property to anyone.

2.3 Records. Practice shall maintain complete and accurate records in accordance with the Master Agreement. Joi shall have the right to examine such records in accordance with the Master Agreement.

2.4 Notices and Quality Control.

(A) The non-exclusive license and sublicense granted hereunder is conditioned upon Practice’s full and complete compliance with Sections 3.8 and 3.17 of the Master Agreement and the marking provisions of the trademark, patent, and copyright laws of the United States; provided, however, that nothing in this Master Agreement provides for or constitutes a license to, or to make use of directly or indirectly, any Joi marks, logos, copyrights or trademarks.

(B) The Licensed Services, as well as all advertising, marketing, promotional items, packaging, and other material created by Practice relative thereto, shall include all appropriate legal notices as required by Joi and applicable law.

(C) Practice shall conduct the Licensed Services in full compliance with the provisions of the Master Agreement.

(D) Practice shall:

(i) Adhere to clinical quality control standards that Joi may from time to time prescribe and communicate to licensee regarding the use of the Intellectual Property; and
(ii) Use the Intellectual Property and Software in compliance with all relevant laws and regulations, including the Program Guidelines and as described in Section 4.1 below.
(iii) Use its best efforts to retore compliance with such standards as quickly as reasonable and practicable. If Practice has not taken appropriate steps to RxHarmony compliance within 30 days after receiving written notification from the Joi of the need to do so, Joi shall have the right to require that the Practice cease using the Intellectual Property or Software.

(E) Practice shall not, without the prior written consent of Joi in Joi’s sole and absolute discretion, (i) change the Intellectual Property or Software, or create any design variation of the Intellectual Property, (ii) join any name, mark, or logo with the Intellectual Property or Software so as to form a composite trade name or mark, (iii) use the Intellectual Property or Software at a site or location other than the Practice Location, or use the Intellectual Property or Software in connection with any other hormone replacement therapy other than RxHarmony™ Program.

(F) Practice shall use the Intellectual Property only in accordance with such quality standards and specifications as may be established or required by the Master Agreement and such other or additional standards and specifications as may be established by Joi and communicated to Practice in writing from time to time (the “Quality Standards”). Without limiting the foregoing, the products and services provided by Practice shall always be or performed in a manner that reflects favorably on the Intellectual Property and Software and does not tarnish them or the reputation of Joi or the owner of such Intellectual Property or Software.

All use of the Intellectual Property made hereunder shall faithfully reproduce the design and appearance of the Intellectual Property as reflected in the registrations or applications listed on Exhibit “A”, Exhibit “B”, and Exhibit “C” or as otherwise instructed by Joi in writing. Joi or its designated representative shall have the right at any time during normal business hours to inspect and approve, which approval shall not be unreasonably withheld, any and all uses of the Intellectual Property to confirm that such use is in conformance with the terms of this Master Agreement. From time to time, upon Joi’s reasonable request in writing, Practice shall, at Practice’s expense, (i) provide Joi with representative samples of the ways in which the Intellectual Property are then being used (or photographs depicting the same), and (ii) permit Joi to inspect Practice’s places of business where the Intellectual Property is used, in each case for Joi’s inspection and approval of such uses.

(G) If Joi reasonably believes that uses of the Intellectual Property or Software are not being conducted in compliance with the Quality Standards or if an inspection reveals that they do not comply with the Quality Standards, then Joi will provide Practice with written notice of such defects or violations and shall allow Practice 30 days from the notice date in which to cure such defects or violations. If Practice does not cure them within such 30 days, then Joi may, in its reasonable discretion, terminate Practice’s license and sublicense rights to the Intellectual Property or Software or bring an action to require specific performance. If such an action is successful, then Practice shall have 5 days within which to comply with the order. If Practice fails to comply by that time, then Practice’s license and sublicense rights to the Intellectual Property and Software will terminate automatically.

2.5 IP License Agreement. The sublicense to the Software granted in this Master Agreement (the “Sublicenses”) is subject to all applicable terms and conditions of the IP License Agreement with respect to the Software, including but not limited to the following:

(A) The Sublicenses will terminate automatically upon any termination of the IP License Agreement.

(B) Joi shall (i) notify Practice and Practice Practitioner in writing upon becoming aware that Practice’s use of the Software deviates from the Quality Standards in any material respect, and (ii) promptly undertake commercially reasonable efforts to cause such defective or nonconforming use to be cured or, if not curable, discontinued.

(C) The other party to the IP License Agreement is a third-party beneficiary of the Sublicenses and will have the right to enforce the terms and conditions of, and terminate, the Sublicenses.

2.6 Materiality. If Practice fails to use the Intellectual Property or Software in compliance with Article 2, such failure shall be deemed to be a material breach of Practice’s obligations under this Master Agreement.

2.7 Claims. Practice shall give Joi written notice of (i) any conduct that comes to its attention and that appears to infringe or constitute a conflicting use of the Intellectual Property or Software, and (ii) any claim or assertion by any person, whether or not made in a legal action, that the Intellectual Property or Software infringes on any rights of a third party. Practice will provide Joi with such notice within 5 days after being advised thereof. The defense, settlement, and handling of any such claim shall be as determined by Joi in its sole discretion. When requested, Practice shall cooperate with and assist Joi in its efforts to stop an infringement or other violation of Joi’s rights with respect to the Intellectual Property or Software.

2.8 Alterations. If Joi at any time determines that it is appropriate to change or cease use of any of the Intellectual Property, or to substitute or add to the Intellectual Property or Software, then the definition of Intellectual Property hereunder shall automatically, and without further action of the Parties hereto, be amended to reflect any such change, cessation, substitution, or addition.

2.9 Intellectual Property Rights.

(A) Practice acknowledges Joi’s exclusive rights in the Intellectual Property and further acknowledges that the Intellectual Property is unique. Practice shall not, at any time during or after the Term, dispute, or contest, directly or indirectly, Joi’s exclusive right and title to the Intellectual Property or the validity thereof. Joi makes no representation or warranty with respect to the validity of any of its issued or pending patents or copyrights.

(B) Practice’s use of the Intellectual Property inures to the benefit of Joi, and Practice shall not acquire any ownership rights in the Intellectual Property or in any improvements thereof, whether by Joi, Practice, or any third party, as a result of the license or sublicense. If Practice acquires any rights in the Intellectual Property, it will immediately, at no expense to Joi, assign all such rights to Joi. Practice will not grant or attempt to grant a security interest in the Intellectual Property or Software or any of its rights under this Master Agreement.

(C) Practice shall not disparage or intentionally take any action or encourage others to take any action that might harm Joi’s Intellectual Property, the Software, or rights to the Intellectual Property or Software. Practice will not take any action inconsistent with Joi’s ownership or rights in the Intellectual Property or Software.

(D) Any derivative works, improvements, discoveries, adaptations, designs, and processes relating to the Intellectual Property shall be owned by and remain the sole property of Joi even if it is conceived, developed, reduced to practice, acquired, or obtained by Practice or a third party. Practice will execute and file, as appropriate, such documents necessary or appropriate to effectuate such rights in Joi.

ARTICLE 3. LICENSING AND PROVISION OF SERVICES

3.1 Licensure of Practice and Practice Practitioner. Each Practice Practitioner: (a) shall be licensed by the State to practice medicine (including any relevant specialty) or nursing, as applicable; (b) if a physician, shall possess a valid and unrestricted DEA certificate; (c) shall have undergone and completed the necessary Joi training and received Joi approval to provide the Services; (d) shall maintain all such licensure, compliance, certification, and registration throughout the term of his or her participation under this Master Agreement; and (e) without limiting any of the foregoing, shall maintain all required professional credentials and meet all continuing education requirements necessary to retain health professional licensure in the State.

3.2 Adoption of Program Guidelines by Practice. At or around the Effective Date, Practice shall, in exercise of the independent medical judgment of the Practice Practitioners, adopt the Program Guidelines then promulgated by Joi for use in the Practice as Practice treatment guidelines and protocols, subject at all times in the treatment of Patients to the exercise of independent medical judgment by each individual Practice Practitioner. Joi may alter the Program Guidelines from time to time and shall notify Practice after at the time of such alternations in accordance with Section 4.1. Consistent with Section 4.1, Practice may, in the exercise of the independent medical judgment of the Practice Practitioners, adopt such alterations for use in the Practice as alterations to the Program Guidelines, including but not limited to treatment to treatment and dosing protocols. Joi will not be liable as a result of any such alterations.

3.3 Provision of the Services. Pursuant to this Master Agreement, Practice has received various materials from Joi relating to the provision of Services. Practice and Practice Practitioners will offer the Services only to their Patients at the Practice Location. Practice represents and covenants that Practice and each of the Practice Practitioners understands all the medical, ethical, and legal requirements concerning the provision of the Services and will offer the Services to Patients only when the responsible Practice Practitioner has, in the exercise of his or her independent medical judgment, determined that the Patient will benefit from such Services. In connection therewith, Joi encourages open communication between Practice Practitioners and Patients regarding appropriate treatment alternatives irrespective of whether such treatment alternatives include utilizing the Services. When medically appropriate, Practice and each Practice Practitioner shall provide the Services to Patients in a manner consistent with the Program Guidelines and applicable law, and in accordance with the scope of Practice’s and each Practice Practitioner’s licensure and board certification, if any, and the prevailing standards of care of the medical profession in the community in which Practice performs services. Practice shall be responsible for providing medical direction and supervision to all employees and contractors and shall insure that all such employees and contractors are duly licensed and performing their duties and responsibilities in accordance with State and federal law. The execution of this Master Agreement shall not be construed to authorize any medical professional who is not identified on Schedule 3.3, as amended from time to time, to render Services to Patients. In no event shall a Practice Practitioner provide the Services to Patients until such Practice Practitioner has been added to Schedule 3.3, as amended from time to time, in accordance with the provisions of Schedule 3.3.

3.4 Independent Professional Judgment. Nothing in this Master Agreement is intended to create, nor shall it be construed to create any right of Joi to intervene in any manner in the methods or means by which Practice or any Practice Practitioner renders medical services to Patients. At all times Practice and the Practice Practitioners shall exercise independent medical judgment with respect to each Patient, including, without limitation, whether such Patient will benefit from the Services. As noted above, Joi encourages open communication between Practice Practitioners and Patients regarding appropriate treatment alternatives irrespective of whether such treatment alternatives include utilizing the Services. Subject to the foregoing, Joi and its Affiliates shall provide information and guidance to Practice and Practice Practitioners solely with respect to the rendition of the Services to Patients and, with Practice’s prior authorization, online coaching and other nonmedical support consistent with the Program Guidelines to Practices’ and Practice Practitioners’ Patients.

3.5 Compliance with Program Guidelines. Practice and each Practice Practitioner shall, subject to the provisions of Sections 3.2, 3.3, and 3.4, comply with the Program Guidelines as in effect from time to time and shall participate in quality control and other training programs related specifically to the Services offered to Practice by Joi.

3.6 Licensure and Certification Requirements. Practice and each Practice Practitioner will comply with all federal, State, and local laws, regulations, and administrative guidelines, including, without limitation, as applicable to its, his, or her medical licensure.

3.7 Trademark Usage.

(A) Practice will substantiate the purpose and branding of the Joi Logo in Practice’s use of the Joi Logo. Practice will not display the Joi Logo as a primary feature, but rather secondary to Practice’s own branding. Practice will not (a) imitate the Joi Logo design features, (b) mimic any of Joi’s advertising, product packaging, or website design; (c) use the Joi Logo in a manner that would disparage Joi or its products or services; (d) embed the Joi Logo in any other company name, product name, service name, domain name, website title, publication title, or the like; (e) violate any ethical or legal business practices that apply to Practice, as such violations may negatively impact Joi and its goodwill in the Joi Logo; (f) use the Joi Logo in a manner that implies that Practice is an agent of Joi or that Joi warrants, approves, or endorses any product or service provided by Practice; (g) alter the Joi Logo in any way. Practice will include the following attribution clause with any use of the Joi Logo: “Trademark Joi Partners, LLC.”

(B) Practice must submit samples of Practice’s intended use of a Joi Logo before putting such use into the marketplace. Joi will review such samples for quality control purposes. Practice will not use the Joi Logo in any instance until Joi provides its approval of the proposed use.

(C) If Joi determines that Practice has breached any part of this Section 3.7 at any time, Joi may terminate Practice’s rights to use the Joi Logo, and upon notice of such termination, Practice will promptly cease all such use, including the use of any pre-printed materials.

3.8 Use of Joi, RxHarmony™, Practice, or Practice Practitioner Name. Practice and Practice Practitioners shall not use or publish Joi’s name or logo, the RxHarmony™ name or logo, Joi’s other trademarks, or any other identifying marks of Joi except in strict accordance with this Master Agreement. Practice shall reasonably cooperate with Joi to allow Joi to identify Practice to Joi’s candidate licensees, and Practice agrees to serve as a reference to Joi and hereby does provide to Joi a cost-free, perpetual, limited license to use Practice’s name, logos, marks, trade dress, and any other non-confidential information identifying Practice solely for the purpose of Joi’s promotion and placement of additional licenses of the Intellectual Property or Software with other medical professionals; provided, however, that Practice shall not bear any related cost or expense, that shall be paid by Joi.

3.9 Financial and Other Records; Reporting.

(A) Consistent with the Program Guidelines, Practice shall create and maintain records for each Patient receiving the Services from Practice, which shall include, without limitation, all medical and clinical records, patient files, administrative records, business and financial records, and other documentation related to the rendering of the Services, as required by applicable law and as the Practice routinely produces in the usual course of business and as may be reasonably required by Joi (the “Records”). Practice will maintain such Records in a legible, comprehensive, and chronological order, shall treat the Records as confidential in accordance with applicable federal and State laws, and shall comply with the standards of care, State and federal laws regarding patient records and the confidentiality thereof.

(B) In furtherance of the foregoing obligation, Practice may access the Website, which will allow Practice to access the Website to support the Practice in the provision of the Services to each Patient. Joi shall have the right, without any obligation to Practice, to use such information obtained from the Practice and its Patients for its own purposes; provided, however, that any such information obtained shall be used solely in compliance with HIPAA to audit compliance by Practice with the terms of this Master Agreement, for statistical analysis in development of the Services, to promote Joi’s licenses to other licensed medical professionals, and for academic research purposes. Any information used by Joi for any purpose allowed under this Section 3.9 shall be used without any personally identifying information and shall not be reported or disclosed to any third party in a manner that will allow the identification of any Patient.

(C) Practice Practitioner will review and submit invoices to Joi for approval and renumeration of clinical services provided in accordance with the fee schedule in Exhibit B

3.10 Required Notifications. Practice shall be solely responsible for notifying Joi in writing, within the time indicated, upon the Practice first obtaining actual notice or information of the occurrence of any of the following events:

(A) The license of Practice or any Practice Practitioner to practice medicine or nursing, as applicable, in the State, or the DEA registration certificate thereof, is restricted, suspended, revoked, or otherwise terminated; notification is required within 24 hours;

(B) Practice, or any Practice Practitioner receives written notice of a threatened or asserted claim, demand, action, or complaint alleging medical malpractice against Practice or Practice Practitioner; notification is required within 48 hours;

(C) Practice, or any Practice Practitioner, is the subject of disciplinary action by any State licensing agency; notification is required within 5 days;

(D) Practice, or any Practice Practitioner, is indicted or convicted of a felony or a healthcare related misdemeanor; notification is required within 24 hours;

(E) Practice plans to change its business address or Practice Location; notification is required no less than 30 days in advance; and

(F) Any act, event, or occurrence that materially affects a Practice’s, or any Practice Practitioner’s ability to carry out his or her duties and obligations under this Master Agreement; notification is required within 24 hours.

3.11 Duty of Practice to Ensure Compliance of Practice Practitioners. If Practice receives information to indicate that a Practice Practitioner is in breach or default of any of Practice’s obligations or duties under this Master Agreement, or if Joi provides notice to Practice that Practice, or any Practice Practitioner, is or may be in breach or default of any of Practice’s duties or obligations under this Master Agreement, Practice shall cure the breach or default and take such other reasonable actions within the time specified by Joi or within such shorter time as is required by applicable law. Subject only to the provisions of Section 6.2, failure of Practice to cure the breach or default by Practice or by a Practice Practitioner within the time specified above shall be a breach of this Master Agreement and grounds for termination of this Master Agreement.

3.12 Inspections and Access. Practice shall permit Joi to evaluate the general operation of the Practice and the provision of Services through on-site inspection and review of the Records. Joi’s right to inspect Records shall relate exclusively to Records relating to the Services that Practice provides in connection with this Master Agreement.

3.13 Insurance Requirements; Cooperation.

(A) Practice shall obtain and maintain in full force and effect such policies of general liability (at least $1 million per occurrence, $3 million aggregate), professional liability (malpractice) (at least $1 million per occurrence, $3 million aggregate), worker’s compensation (at least at statutory minimums), and other insurance as are necessary to comply with applicable State law and this Master Agreement, as amended from time to time. Umbrella insurance may be used to meet any of these insurance requirements.

(B) Notwithstanding the foregoing, if a claim for medical malpractice is made against any Party by a Patient, in all cases, the Parties shall be available and actively cooperate with and assist each other in defending and participating in the preparation and tendering of any legal defense required for such claim.

3.14 Joi Training. Practice will cause its Practice Practitioners and staff to engage in all required training in its entirety, including all instructional and qualification programs conducted by Joi regarding the provision of the Services. Joi shall provide to Practice and Practice Practitioner(s) the necessary Joi training and educational services related to the methods, procedures, and protocols of operating the Services, including, without limitation, providing a clinical therapy training course to all Practice Practitioners and medical professionals providing said therapy and treatments on behalf of the Practice (at a mutually agreeable time and date but before the Opening Date). Such training will be online or in person (at the request and expense of Practice). Additionally, as may be necessary or advisable, Joi shall provide to Practice such additional training and other educational information regarding the Services as may be developed from time to time, consistent with the Program Guidelines.

Any and all Joi training described in this Section 3.14 or elsewhere in this Master Agreement may sometimes be referred to herein as the “Training.”

Nothing in this Section 3.14 is intended to create any right of Joi to intervene in the provision of medical services to Patients or the exercise of independent medical judgment by Practice and Practice Practitioners.

3.15 Practice Website; Marketing Matters. Joi will provide Practice with approved verbiage and logos, which Practice can use on the Practice Website. Joi Practice shall engage in advertising and marketing of the Services only as and in compliance with this Master Agreement, State licensing and professional practice laws and regulations and prevailing requirements regarding physician or medical professional advertisements. Before implementing any advertising and marketing of the Services, the Practice shall submit to Joi copies of all advertising materials (including any oral scripts) and marketing materials for Joi’s review; which review will be limited to and for the sole purpose of checking compliance with the terms of this Master Agreement and to confirm that the integrity of Joi’s copyrights and other intellectual property rights are upheld. Notwithstanding anything contained in this Master Agreement or the Program Guidelines to the contrary, Practice shall have the sole and ultimate responsibility for creating and implementing all advertising and marketing of the Services.

3.16 Required Forms and Paperwork. Practice will complete and submit the following before the Opening Date: (i) the Joi non-disclosure agreement to be signed by each of the Practice Practitioners; (ii) Joi(v) proof of current medical malpractice insurance for all Practice Practitioners, and copies of Practice’s insurance policies; (vi) the original signed copy of this Master Agreement; and, (iii) business associate agreement with the Practice, and (iv) authorized agent form completed by Practice (collectively, the “Joi Forms and Paperwork”). The Practice will not be permitted to commence training, and Joi will not be required to provide training, until all Joi Forms and Paperwork are properly filled out, signed if applicable, and submitted to Joi along with payment of the required fees.

3.17 Login Credentials. Practice and the Practice Practitioners will not share or disclose their respective login credentials for using the Services. Practice will be responsible for all charges and other activities undertaken through any Practice or Practice Practitioner login credential.

ARTICLE 4. LICENSOR’S OBLIGATIONS

4.1 Program Guidelines. Joi shall provide Practice with a copy of Joi’s RxHarmony™ Program Guidelines before the commencement of training. RxHarmony™ Program formulary is defined in Exhibit C. Nothing in this Section 4.1 shall be construed to prohibit, limit, or constrain Joi from revising or amending its RxHarmony™ Program Guidelines from time to time in its sole discretion. Joi shall provide Practice with advance written notice of any changes to the RxHarmony™ Program Guidelines. On a quarterly basis and in a manner as set forth in the RxHarmony™ Program Guidelines, Practice shall communicate to Joi its decision, through the exercise of the independent medical judgment of its Practice Practitioners, whether to adopt such modifications to the RxHarmony™ Program Guidelines.

4.2 Provision of Services. Joi shall provide to the Practice training, tools, and support services consistent with the Program Guidelines to allow Practice the opportunity to properly render the Services to its Patients (“Instructional Material”). Nothing in this paragraph is intended to create any right of Joi to intervene in the provision of medical services to Patients or the exercise of independent medical judgment by Practice and Practice Practitioners.

ARTICLE 5. COMPENSATION

5.1 Management and Consulting Fees. For technology licensing, and other services provided by Joi under this Agreement, Joi will pay the fees listed in the attached Exhibit “B” (the “License Fees”.) Practice will be reimbursed the Clinical Service Fees monthly on the 15th of each month following the Effective Date. The License Fees will be prorated for any period less than a month.

5.2 Fair Market Value; Limitations. Payment of the Medical Service Fees are not intended to be and shall not be interpreted or applied as permitting the Joi to share in Practice’s fees for medical services or any other services. The Medical Service Fees are acknowledged as the Parties’ negotiated agreement as to the reasonable fair market value of the licenses and other benefits received by the Practice pursuant to this Master Agreement, including the items and services furnished by Joi pursuant hereto, considering the nature and volume of the services required and the risks assumed by Joi. Joi’s administrative expertise will contribute great value to Practice and the Services. Joi will incur substantial costs, expenses and business risks hereunder. Certain of such costs and expenses can vary to a considerable degree according to the extent of the success of the Services. No part of the Medical Service Fees represents an inducement for the referral of patients.

5.3 Employee Compensation. Practice shall be solely responsible for compensating Practice Practitioners, Practice employees, contractors and agents and shall indemnify, defend, protect, and hold Joi harmless from and against, any and all claims, liabilities, damages, judgments, awards, losses, costs, and expenses (including attorneys’ fees and costs) for wages, salaries, benefits, income taxes, FICA, FUTA, SDI, and all other payroll, employment, and other taxes, withholdings, and charges payable by, or on behalf of, Practice and any other employment law requirements. Neither Practice nor any Practice Practitioner shall be owed any compensation from Joi or any of its Affiliates on account of this Master Agreement.

ARTICLE 6. TERMINATION

6.1 Termination by Practice. Practice may terminate this Master Agreement at any time by giving at least 90 days prior written notice.

6.2 Termination by Joi. Joi may terminate this Master Agreement at any time by giving at least 90 days prior written notice. Joi may also terminate this Master Agreement immediately upon the occurrence of any of the following events: (i) the license of any Practice Practitioner to practice medicine or nursing, as applicable, in the State, or DEA registration certificate, is restricted, suspended, revoked, restricted, or otherwise terminated (whether voluntary or involuntary); (ii) any Practice Practitioner is the subject of disciplinary action by any state or federal licensing agency; (iii) Practice or a Practice Practitioner is indicted or convicted of a felony or a healthcare related misdemeanor; (iv) Practice or any Practice Practitioner is suspended or excluded from participation in the Medicare or Medicaid program or any federal or state benefit program; (v) Practice fails to notify licensor of any event set forth in Section 3.10; (vi) Practice is otherwise in breach or default hereunder and such breach or default is not cured within 30 days after the date of such notice; (vi) Practice fails to pay, in full, any fee or payment as and when due hereunder and such failure continues for a period of 5 days after written notice to Practice from Joi; (viii) any Practice Practitioner is unable to perform essential duties, responsibilities, or functions of Practice Practitioner’s position as a result of any mental or physical disability or incapacity; (ix) Practice’s or Practice Practitioner’s failure to comply with the Program Guidelines, or any amendments or supplements thereto; (x) the Practice fails to meet the Performance Benchmarks during the term of this Master Agreement. Practice may also terminate this Master Agreement immediately upon notice to Practice upon:

(A) Any unauthorized use by Practice of the Intellectual Property or Software;

(B) Practice’s knowing submission of any false or incomplete records or other information to Joi;

(C) The attempted or actual transfer or grant of any rights in the Intellectual Property or Software or any interest of Practice herein to any third party without Joi’s prior written consent, such consent to be provided at the sole discretion of Joi;

(D) Practice’s failure to use the Intellectual Property in accordance with the terms of this Master Agreement; or

(E) The filing for dissolution or bankruptcy of Practice.

6.3 Obligations Upon Termination.

(A) If this Master Agreement is terminated for any reason, Practice and Practice Practitioners shall comply with all ethical and legal duties with respect to Patients arising as a result of the termination, including but not limited to providing each Patient an opportunity to continue in the Program and receive the Services from an authorized licensee Service provider or Joi or its Affiliates; accordingly, upon termination of this Master Agreement, Practice shall provide to each of Practice’s Patients receiving the Services the names and contact information of authorized, licensee Service providers and Joi and its Affiliates as provided to Practice by Joi so that Patients may continue and complete their participation in the Program, Within 14 days after termination of this Master Agreement, Practice shall identify each such Patient to Joi in writing so that Joi or its Affiliates may facilitate their transfer to an authorized provider of the Services.

(B) Upon the termination of this Master Agreement, (i) Practice shall immediately return to Joi any and all devices, and all other items provided to Practice by Joi, including, without limitation, the Program Guidelines, Instructional Materials, and Joi manuals, and all other documentation related to Joi’s business, and (ii) all of the rights of the Practice and the Practice Practitioners to use any Intellectual Property or Software shall terminate.

(C) Upon a termination of this Master Agreement, all accrued or earned, but unpaid fees shall immediately become due and payable to Joi by Practice. All accrued or earned, but unpaid fees shall immediately become due and payable to Practice by Joi and will constitute final payment.

6.4 Effects of Termination. Termination of this Master Agreement shall not affect the rights, obligations, or liabilities of the Parties arising out of transactions occurring before termination, or the rights, obligations, and liabilities of the Parties that, either expressly or by their nature, are intended to survive the termination of this Master Agreement. This Master Agreement may be terminated without the prior consent of or notice to any Patient or any other third party, subject, however, to the ethical and legal obligations of Practice and Practice Practitioners with respect to Patients and any requirements as set forth in the Program Guide lines.

6.5 Post-Termination Rights.

(A) Upon the termination of this Master Agreement, all rights granted to Practice regarding the Intellectual Property and Software will immediately terminate and revert to Joi, and Practice shall discontinue all use of the Intellectual Property and Software.

(B) After this Master Agreement terminates, Joi may demand from Practice all material relating to the Intellectual Property and Software that is in Practice’s possession or control. Practice shall, at Practice’s sole cost, return all such material to Joi within 10 days after receipt of such demand.

ARTICLE 7. ASSIGNMENT AND CHANGE OF OWNERSHIP OR CONTROL

7.1 Assignments. This Master Agreement is personal to Practice, and this Master Agreement (and any claims arising out of or relating to this Master Agreement) is not assignable, delegable, or transferable by Practice without the advance written consent of Joi, and Practice may not subcontract or delegate any of its rights, duties, or obligations of Practice hereunder be subcontracted or delegated without the prior written consent of Joi, all of which consent is in Joi’s sole discretion. In any such case, Practice must request Joi’s consent at least 30 days in advance of any such proposed action. Any assignment or attempted assignment in violation of this Section 7.1 shall be void. Joi may transfer or assign this Master at will.

7.2 Change of Ownership or Control. The Practice will notify Joi at least 30 days in advance of a contemplated change in a majority ownership or control of the Practice. Any change in the ownership or control of Practice shall be treated as an assignment within the meaning of, and subject to prior approval of Joi and the provisions of, Section 7.1.

ARTICLE 8. RELATIONSHIP OF THE PARTIES; PARTICIPATION OF PRACTICE PRACTITIONERS; AUTHORITY.

8.1 Relationship of the Parties. Joi and the Practice are independent contractors. Nothing in this Master Agreement or about the parties’ relationship shall be construed or deemed to create between them any relationship of employer and employee, principal and agent, partners, joint ventures, landlord/tenant, or any relationship other than that of independent parties.

8.2 No Authority to Bind. Neither Practice nor any Practice Practitioner shall have any authority, and it is expressly outside the scope of the relationship created pursuant to this Master Agreement, to enter into any contracts binding upon Joi or to create any obligations on the part of Joi. Nothing in this Master Agreement shall be construed to give Joi any authority to enter into any contract binding upon Practice or any Practice Practitioner or to create any obligation on the part of Practice or any Practice Practitioner. Except as set forth expressly in this Master Agreement, Joi shall not have authority to bind Practice, and it is expressly outside the scope of the relationship created pursuant to this Master Agreement, for Joi to enter into any contracts binding upon the Practice or to create any obligations on the part of Practice.

8.3 Participation of Practice Practitioners; Authority. Practice represents and warrants that all of the physicians employed or otherwise engaged by Practice shall: (i) be duly licensed to practice medicine in the State; (ii) be trained to provide the Services in accordance with the terms and conditions set forth in this Master Agreement; and (iii) be Practice Practitioners with regards to offering and providing the Services. Practice further represents and warrants that all of the nurse practitioners or physician assistants employed or otherwise engaged by Practice shall: (a) be duly licensed to practice nursing in the State; (b) be trained to provide the Services in accordance with the terms and conditions set forth in this Master Agreement; and (c) be Practice Practitioners with regards to offering and providing the Services. Practice further represents and warrants that the individual executing this Master Agreement has the authority to bind the Practice and the Practice Practitioners to all of the terms and conditions set forth in this Master Agreement. Schedule 3.3 sets forth a list of each Practice Practitioner who will provide Services pursuant to this Master Agreement, and each Practice Practitioner shall execute the Acknowledgment and Joinder (“Joinder”) set forth on Schedule 3.3 to be bound by the provisions applicable to a Practice Practitioner hereunder. Schedule 3.3 may be amended by written agreement of Joi and Practice and the provision of the execution of the Joinder by the new Practice Practitioner. Joi may decline approval of any applicant seeking to provide the Services for any or no reason.

ARTICLE 9. CONFIDENTIALITY; MEDICAL RECORDS.

9.1 Confidentiality.

(A) Practice will not disclose Joi’s Confidential Information to any person or entity except as set forth herein.

(B) Each Party shall use the other Party’s Confidential Information solely in relation to this Master Agreement. No other rights to the other Party’s Confidential Information are implied or granted under this Master Agreement.

(C) Neither Party will reproduce the other Party’s Confidential Information in any form except for internal use or with the prior written authorization of the owning Party.

(D) The Parties shall use all reasonable efforts to protect the confidentiality of the other Party’s Confidential Information with the same degree of care used to protect their own Confidential Information and that of their Affiliates from unauthorized use or disclosure by agents and employees.

(E) Each Party will return the other Party’s Confidential Information (including all whole or partial copies thereof) promptly upon termination of this Master Agreement or otherwise upon demand.
(F) The restrictions in this Article shall remain as to each item of Confidential Information for so long as such item remains confidential without the non-owning Party’s breach; provided, however, that if applicable law requires a time limit for a use or disclosure restriction to be enforceable regarding Confidential Information that is not a trade secret, then the restrictions in this Article shall remain as to each item of Confidential Information that is not a trade secret for the period ending on the 3rd anniversary of the termination of this Master Agreement.

9.2 Medical Records. Practice shall comply with all applicable state and federal laws, regulations, and guidelines governing the medical records, enrollment information, and any other information of Patients, including the establishment of procedures to safeguard the privacy of any information that identifies a particular Patient, maintain all such records and information in an accurate and timely manner, and allow timely access by Patients to the records and information that pertain to them in accordance with applicable law.

(A) Practice shall maintain appropriate, accurate, and complete clinical record entries with regard to the Services provided to its Patients consistent with the Program Guidelines. These entries must include the lot numbers from each vial of hormone pellets that were administered to the Patient.

(B) A Patient’s records will include the recording of the specific type of Services provided by Practice, Practice Practitioners, and other qualified employees of Practice rendering the Services to Patient, and other reports related to the provision of the Services received by Patient. In the creation and maintenance of such Records, Practice and Practice Practitioners shall comply with all federal and state laws and regulations regarding the confidentiality of patient records.

9.3 Protected Health Information. Practice agrees to obtain all necessary consents from Patients required for Practice to comply with the disclosure requirements contained in this Master Agreement, consistent with HIPAA and the laws of the State, and consistent with the Program Guidelines.

ARTICLE 10. RESTRICTIVE COVENANTS

10.1 Non-Competition. During the Term and for 3 years thereafter (the “Non-Competition Period”), neither Practice nor any Practice Practitioner, nor any of their respective Affiliates, shall, directly or by assisting others, render services to, become affiliated with, or be employed by, own, or have a financial or other interest in any business within the RxHarmony™ Territory (defined below) that provides RxHarmony™ Services, except nothing herein shall prohibit Practice or any Practice Practitioner from (a) owning less than 5% of the outstanding shares in a publicly traded corporation. (b) After the Term, this section 10.1 will not prohibit the Practice or any Practice Practitioners from using RxHarmony™ Servies, distributed, or otherwise provide by another company for Practice’s patients. “RxHarmony™ Services” means a non-medical consulting business and technology platform for efficient practice management regarding bio-identical pellets or other products or services of the type that are the same as, similar to, or otherwise com-petitive with the activities, products, or services of the type conducted, authorized, offered, or provided by Joi with the 2 years immediately before the end of the Term or in providing any training of the Services or any derivation thereof. “RxHarmony™ Territory” means the geographic area consisting of the entire continental United States of America.

10.2 Non-Solicitation of Customers. During the Non-Competition Period, neither Practice nor any Practice Practitioner, nor any of their respective Affiliates, shall, directly or by assisting others, solicit or attempt to solicit any business from any of Joi’s customers or actively sought prospective customers for the purpose of providing products or services that are competitive with those of Joi. The prohibition contained in this paragraph shall apply only to those customers and actively sought prospective customers with whom Practice, or the Practice Practitioner had material contact during the Term. Such Party had “material contact” with a customer or actively sought prospective customer if (a) that Party dealt with such person on behalf of Joi, or (b) such person’s dealings with Joi were coordinated or supervised by that Party, or (c) that Party obtained such person’s confidential information in the ordinary course of business as a result of that Party’s association with Joi, or (d) such person receives products or services from Joi with respect to which such Party received commissions, compensation, or earnings within 2 years before the end of the Term (or if earlier, 2 years before such Party was bound by this Master Agreement).

10.3 Non-Piracy. During the Non-Competition Period, neither Practice nor any Practice Practitioner, nor any of their respective Affiliates, shall, directly or by assisting others, hire or solicit any employee of Joi or encourage any such employee to terminate his or her employment with Joi.

10.4 Remedies. Upon the breach or threatened breach of any covenant set forth in paragraphs 10.1, 10.2, or 10.3, Joi shall, in addition to all other remedies available at law or in equity, be entitled to temporary, preliminary, and permanent injunctions to prevent or halt such a breach or threatened breach without the posting of a bond unless required by applicable law. The rights and remedies of Joi as provided in paragraphs 10.1, 10.2, and 10.3 shall be cumulative and concurrent, may be pursued separately, successively, or together at the sole discretion of Joi, and may be exercised as often as Joi requires. Joi’s failure to exercise any right or remedy shall not be construed as a waiver or release thereof. Any claim or cause against Joi shall not constitute a defense to or provide relief from enforcement of any of the covenants contained in this Master Agreement. Practice and the Practice Practitioners shall waive and hereby waive the defense that Joi has or will then have an adequate remedy at law. If the enforceability of any of the terms of paragraphs 10.1, 10.2, or 10.3 is challenged in court and such party is not enjoined from breaching the protective covenants in this Master Agreement, but thereafter a court of competent jurisdiction finds that the challenged protective covenants are enforceable, then the time periods provided in paragraphs 10.1, 10.2, or 10.3, as applicable, shall be deemed tolled for any time after the filing of such lawsuit during which such party was not subject to injunction and until the dispute is finally resolved and all periods of appeal have expired, after which the time restrictions shall once again commence to run.

10.5 Medical Records Access and Treatment. To the extent Joi has such medical records, Practice’s and each Practice Practitioner’s patients shall have access to, and copies of, their medical records upon payment of reasonable costs for reproducing such records. Joi is not obligated to provide the patient medical records in a format other than that by which Joi customarily maintains such records. Practice and each Practice Practitioner may provide continuing care and treatment to a specific patient or patients during the course of an acute illness, even after termination of this Master Agreement and the imposition of the restrictive covenants set forth herein.

10.6 Exclusive Provider. Joi will be Practice’s exclusive provider of Services and related products during the Term of this Master Agreement. Practice will not use Joi’s Services or RxHarmony™ Program to obtain related products from third parties.

ARTICLE 11. REPRESENTATIONS AND WARRANTIES.

11.1 Practice Representations. Practice hereby represents and warrants as follows:

(A) Existence and Qualification of Practice. Practice is duly organized, validly existing, and in good standing under the laws of the State. Practice has the power to own, manage, lease, and hold its assets and to carry on its business as and where such assets are presently located, and such business is presently conducted.

(B) Authority, Approval, and Enforceability. This Master Agreement has been duly executed, delivered, and authorized by Practice, and Practice has all requisite power and legal capacity to execute and deliver this Master Agreement and all other documents and agreements executed and delivered or to be executed and delivered in connection with the transactions contemplated by this Master Agreement; to consummate the transactions contemplated by this Master Agreement; and to perform its obligations under this Master Agreement. Upon execution and delivery, this Master Agreement will constitute the legal, valid, and binding obligation of Practice enforceable in accordance with its terms.

(C) Compliance with Laws. Practice is, and shall at all times be, duly licensed, certified, and authorized in full compliance with federal, State, and local laws, statutes, regulations, and ordinances.

(D) No Contravention. Neither the execution or the delivery of this Master Agreement, the provision of the Services, nor the compliance with any provision of this Master Agreement shall cause Practice to breach any agreement to which it is a party or violate any applicable laws to which it is subject.

11.2 Joi Representations. Joi hereby represents, warrants and agrees as follows:

(A) Existence and Qualification. Joi is duly organized, validly existing, and in good standing under the laws of Georgia. Joi has the power to own, manage, lease, and hold its assets and to carry on its business as and where such assets are presently located, and such business is presently conducted.

(B) Authority, Approval, and Enforceability. This Master Agreement has been duly executed, delivered, and authorized by Joi, and Joi has all requisite power and legal capacity to execute and deliver this Master Agreement and all other documents and agreements executed and delivered or to be executed and delivered in connection with the transactions contemplated by this Master Agreement; to consummate the transactions contemplated by this Master Agreement; and to perform its obligations under this Master Agreement. Upon execution and delivery, this Master Agreement will constitute the legal, valid, and binding obligation of Joi enforceable in accordance with its terms.

(C) Compliance with Laws. Joi is, and shall at all times be, duly licensed, certified, and authorized in full compliance with federal, state and local laws, statutes, regulations, and ordinances.

(D) No Contravention. Neither the execution or the delivery of this Master Agreement, the provision of the Services, nor the compliance with any provision of this Master Agreement shall cause Joi to breach any agreement to which it is a party or violate any applicable laws to which it is subject.

ARTICLE 12. LIABILITY

12.1 Limitation of Liability. Neither Party shall be liable for any indirect, incidental, punitive, or consequential damages (including, without limitation, lost profits or loss of data) whether the basis of liability is breach of contract, tort (including negligence and strict liability), statute, or any other legal theory, even if the other Party has been advised of the possibility of such damage. Notwithstanding anything else herein (and except where such limitations, exclusions, and indemnities are specifically prohibited by applicable law), the total and collective liability of Joi to Practice, Practice Practitioners, and any of their respective Affiliates from all causes of action and under all theories of liability shall be limited to the amount of payments actually received from Practice during the 3 months preceding the date of a claim. For liability arising hereunder. This Section 12.1 shall not be interpreted to limit indemnification otherwise provided herein.

ARTICLE 13. MISCELLANEOUS PROVISIONS

13.1 Waiver. Waivers must be in writing to be effective. The failure of any Party to enforce at any time any provision of this Master Agreement (and related agreements between the Parties) shall not be construed as a waiver of such provision or in any way affect the validity of this Master Agreement (or any related agreements between the Parties) or any part thereof or the right of any Party thereafter to enforce each and every provision. No waiver of any breach of this Master Agreement (or any related agreements between the Parties) shall be held to constitute a waiver of any other breach, unless expressly done so in writing and signed by the Party against whom the waiver is asserted.

13.2 Severability. If any provision of this Master Agreement is declared void or unenforceable by a competent authority or by any law, such provision shall be severed from this Master Agreement, which shall otherwise remain in full force and effect. Notwithstanding the foregoing to the contrary, if a court of competent jurisdiction is permitted by applicable law to modify the void or unenforceable provision to make it valid and enforceable, then the provision shall be so modified and enforced.

13.3 Amendments. This Master Agreement may only be amended in a writing duly signed by both Parties; provided, however, that amendments required because of legislative or regulatory enactments shall not require the consent of any Party and shall be deemed to have amended the Master Agreement as of the effective date of such enactment without any express action by the Parties.

13.4 Regulatory Termination. If any federal or state legislation or regulation is enacted, promulgated, modified, or interpreted, including, without limitation, the Stark Law regulations (42 U.S.C. §1395nn), or a decision of a court or a governmental agency is rendered, or formal guidance is issued from a regulatory agency, that, in the opinion of legal counsel for Practice or Joi, (i) prohibits, restricts, or in any way materially alters the agreements made by the Parties to this Master Agreement (or may prohibit, restrict, or in any way materially alter such agreements), (ii) subjects either Practice or Joi to a significant fine or penalty in connection with its performance of obligations hereunder, (iii) subjects either Practice or Joi to a loss of Medicare or Medicaid certification because of the existence of this Master Agreement or the applicable Party’s performance of its obligations hereunder, or (iv) has a material adverse effect on the ability of Practice or Joi to perform its obligations hereunder, then, within 30 days following notice from one Party to the other, Practice and Joi shall negotiate in good faith an amendment to this Master Agreement or a substitute agreement that will carry out the original intention of the Parties to the extent possible in light of such legislation, regulation, or decisions, and each Party shall execute such amendment. If Practice and Joi cannot reach agreement as to the terms and provisions of the amendment or substitute agreement within 60 days following the notice provided in this paragraph or such earlier date as necessary to avoid substantial penalties or fines, then this Master Agreement shall immediately terminate upon written notice of termination from Practice’s or Joi’s legal counsel, as applicable. No Party shall claim or assert illegality as a defense to the enforcement of this Master Agreement or any provision hereof; instead, any such purported illegality shall be resolved pursuant to the terms of this paragraph.

13.5 Notice. Any notice required or desired to be given under this Master Agreement shall be in writing and shall be sent by certified mail, return receipt requested, postage prepaid, or overnight courier, or hand delivery to the Practice Notice Address if to Practice, and to the Joi Notice Address if to Joi. Notices given hereunder shall be deemed given upon documented receipt. The addressees to which notices are to be sent may be changed by written notice given to the other Party in the manner set forth in this Section 13.5.

13.6 Headings. The headings contained in this Master Agreement are for reference purposes only and shall not affect the meaning or interpretation of this Master Agreement.

13.7 Gender. Whenever gender is used in this Master Agreement, it shall also mean and refer to other gender and neutral gender whenever appropriate.

13.8 Governing Law. This Master Agreement shall be construed and enforced in accordance with the laws of the state of Georgia without regard to its conflicts of law’s provisions.

13.9 Entire Agreement. All schedules to this Master Agreement and all attachments hereto are incorporated by reference into and made part of this Master Agreement. This Master Agreement and any amendments, exhibits, attachments, and schedules hereto as are now incorporated, or as may be added from time-to-­time pursuant to the terms of this Master Agreement, constitute the entire understanding and agreement of the Parties and supersede any prior written or oral agreement pertaining to the subject matter thereof.

13.10 Counterparts. This Master Agreement may be signed in one or more counterparts, each of which shall be deemed an original but all of which shall constitute one and the same instrument. This Master Agreement may also be signed and delivered electronically and constitute an electronic record signed by electronic signature within the meaning of such terms in the Electronic Signatures in Global and National Commerce Act or any other law of similar import, including the Uniform Electronic Transactions Act, as the same may be enacted in any State, and the electronic record and signature will constitute an original for all purposes.

13.11 Injunctions. All suits for equitable enforcement of Article 10 shall be resolved by a Georgia superior court sitting in Cobb County, Georgia. Each of the Parties irrevocably consents to the jurisdiction of such courts and irrevocably waives any jurisdictional or venue defenses otherwise available to it with respect to such courts, including but not limited to claims of inconvenient forum.

13.12 Mediation-Arbitration.

(A) If a dispute arises from or relates to this Master Agreement or the breach thereof (other than those governed by Section 13.11), the Parties will first try to settle the matter through direct discussions.

(B) If such matter is not settled within 10 days, the Parties will endeavor to settle the dispute by mediation administered by the American Arbitration Association under its Commercial Mediation Procedures before resorting to arbitration. The costs of mediation shall be borne equally by the Parties unless (i) the mediator assesses the costs otherwise or (ii) if any Party commences formal legal proceedings or otherwise files any petition or complaint without first providing the opportunity to cure, such Party shall bear the entire cost and expense of mediation.

(C) Any controversy or claim not resolved by mediation in 90 days shall be settled by arbitration under a single arbitrator administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.

13.13 Attorney’s Fees. A judge or arbitrator shall award reasonable attorney’s fees actually incurred by the prevailing party.

13.14 References. Unless specifically noted otherwise, all references to any recital, paragraph, section, subsection, schedule, exhibit, or other provision are references to recitals, paragraphs, sections, subsections, schedules, exhibits, or other provisions in this Master Agreement.

13.15 Assignability. Practice may not assign this Master Agreement to third parties without Joi’s prior written consent. Joi may freely assign this Master Agreement.

13.16 Inurement. This Master Agreement shall be binding upon, inure to the benefit of, and be enforceable by and against the successors and the permitted assigns of each party.

13.17 Survival. Article 1, Sections 5.6, 6.3, and 6.5, Article 9, Article 10, Article 12, and Article 13 shall survive termination of this Agreement.

1.      DEFINITIONS

1.1     Unless otherwise defined in this Agreement, all capitalized terms used in this Agreement have the meanings ascribed to them in the Privacy Rule, the Security Rule, HIPAA, and the HITECH Act.

1.2     “Breach” shall mean the unauthorized acquisition, access, use, or disclosure of PHI which compromises the security or privacy of such information, except where an unauthorized person to whom such information is disclosed would not reasonably have been able to retain such information.

1.3     “Electronic PHI” shall mean Electronic Protected Health Information, as defined in 45 C.F.R. § 160.103, limited to the information received from or created or received by Business Associate on behalf of Covered Entity.

1.4     “PHI” shall mean Protected Health Information, as defined in 45 C.F.R. § 160.103, limited to the information received from or created or received by Business Associate on behalf of Covered Entity.

1.5     “Required by Law” shall include, but is not limited to, court orders and court-ordered warrants; subpoenas or summons issued by a court, grand jury, a governmental or trial inspector general, or an administrative body authorized to require the production of information; a civil or an authorized investigative demand; Medicare conditions of participation with respect to health care providers participating in the program; and statutes or regulations that require the production of information, including statutes or regulations that require such information if payment is sought under a government program providing public benefits.

1.6     “Secretary” shall mean the Secretary of Health and Human Services or his or her designee.

1.7     “Unsecured PHI” shall mean Electronic PHI or PHI that is not secured through the use of a technology or methodology specified by the Secretary in guidance.

 

2.         OBLIGATIONS OF THE PARTIES WITH RESPECT TO PHI

2.1       Obligations of Business Associate.  Business Associate agrees to:

2.1.1    Not use or disclose the PHI other than as permitted or required by this Agreement or other arrangement pursuant to 45 C.F.R. 164.504(e) or as Required by Law.  The Business Associate may not use or disclose PHI in a manner that would violate the requirements of 45 C.F.R. 164, if done by the covered entity, except for the purposes specified under 45 C.F.R. 164 (e)(2)(i)(A) or (B) if such uses or disclosures are permitted by this Agreement or other arrangement.

2.1.2    Access only the PHI of patients who are assigned by Covered Entity to Business Associate.

2.1.3    Use appropriate safeguards and comply, where applicable, with subpart C of this part with respect to Electronic PHI, to prevent use or disclosure of PHI other than as provided for by this Agreement. 

2.1.4    Comply with the applicable requirements of 45 C.F.R. 164.

2.1.5    Make its policies and procedures, and documentation required by the Security Rule relating to such safeguards, available to the Secretary of the Department of Health and Human Services (“HHS”) for purposes of determining Covered Entity’s compliance with the Security Rule. 

2.1.6    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 Agreement.

2.1.7    Report to Covered Entity any use or disclosure of PHI not provided for by this Agreement of which Business Associate becomes aware, including breaches of unsecured PHI as required by 45 C.F.R. 164.410.

2.1.8    Report to Covered Entity any Security Incident with respect to Electronic PHI of which it becomes aware, including breaches of unsecured PHI as required by 45 C.F.R. 164.410.

2.1.9    Report to Covered Entity any Breach with respect to Electronic PHI of which it becomes aware or which Business Associate should be aware. Such report shall include the identity of each individual whose Unsecured PHI has been, or is reasonably believed to have been, accessed, acquired, or disclosed during such Breach, the circumstance surrounding the Breach, and actions taken by the Business Associate to remediate the Breach.

2.1.10  Ensure that all of its subcontractors and agents that receive, use or have access to PHI agree, in writing, to essentially the same restrictions and conditions on the use and/or disclosure of PHI that apply through this Agreement to Business Associate with respect to such information.

2.1.11  Ensure that any subcontractors that create, receive, maintain, or transmit Electronic PHI on behalf of the Business Associate agree to the same restrictions and conditions that apply to the Business Associate with respect to such information, and agree to comply with the applicable requirements of 45 C.F.R. §164.314 by entering into a contract or other agreement that complies with that section.

2.1.12  At the request of Covered Entity and in the time and manner specified by Covered Entity, provide access to PHI in a Designated Record Set to Covered Entity or, as directed by Covered Entity, to an Individual in order to meet applicable access requirements of the Privacy Rule.

2.1.13  At the request of Covered Entity and in the time and manner specified by Covered Entity, make amendment(s) to PHI in a Designated Record Set. 

2.1.14  Make its internal practices, books and records relating to the use and disclosure of PHI available to the Secretary of HHS, in the time and manner specified by the Secretary, for purposes of the Secretary determining Covered Entity’s compliance with the Privacy Rule. 

2.1.15  Document such disclosures of PHI 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 PHI in accordance with the requirements of the Privacy Rule.

2.1.16  Provide to Covered Entity, in the time and manner specified by Covered Entity, information collected in accordance with Section 2.1.14 of this Agreement, to permit Covered Entity to respond to a request by an Individual for an accounting of disclosures of PHI.

2.1.17  Except for such documents as Business Associate is required to maintain for a certain period of time by an applicable Federal, State, or Board of Pharmacy law, statute, rule, or regulation, return to Covered Entity or destroy, within thirty (30) days of the termination of this Agreement or any Underlying Contract, all PHI obtained from Covered Entity or created or obtained by Business Associate on behalf of Covered Entity with respect to the affected Underlying Contract(s), including such PHI that is in the possession of Business Associate’s subcontractors and agents, and retain no copies if it is feasible to do so.  If return or destruction of the PHI is infeasible, Business Associate shall notify Covered Entity of the conditions that make return or destruction infeasible, extend all protections contained in this Agreement to any retained PHI, and limit any further uses and/or disclosures of the PHI to the purposes that make the return or destruction of the PHI infeasible.  This Section 2.1.17 shall survive any termination or expiration of this Agreement.

2.1.18  To the extent the Business Associate is to carry out a covered entity’s obligation under 45 C.F.R. §164.500, comply with the requirements of this subpart that apply to the covered entity in the performance of such obligation.

2.2       Permitted Uses and Disclosures of PHI by Business Associate.  Except as otherwise specified in this Agreement, Business Associate may use and disclose the PHI as reasonably necessary to perform its obligations under the Underlying Contracts.  Unless otherwise limited herein, Business Associate may (a) use the PHI in its possession for its proper management and administration and to carry out the legal responsibilities of Business Associate; (b) disclose the PHI in its possession to a third party for the purpose of Business Associate’s proper management and administration or to carry out the legal responsibilities of Business Associate, provided that the disclosures are Required By Law or Business Associate obtains reasonable assurances from the third party that (i) the information will be held confidentially and used or further disclosed only as Required By Law or for the purpose for which it was disclosed to the third party, and (ii) the third party will notify Business Associate of any instances of which it becomes aware in which the confidentiality of the information has been breached; and (c) provide Data Aggregation services to Covered Entity.

2.3       Prohibited Access and Use of Certain PHI by Business Associate.  Business Associate understands and agrees that it will not access or use any PHI of any patient except for those patients whose accounts have been assigned to Business Associate, and it will further limit access to that PHI that is necessary to the activities undertaken by Business Associate on behalf of Covered Entity.

2.4       Obligations of Covered Entity.  Covered Entity agrees to timely notify Business Associate of any arrangements between Covered Entity and the Individual that is the subject of PHI that may reasonably affect the use and/or disclosure of that PHI by Business Associate under this Agreement.  

2.5       Effect of Changes to the Law.  The Parties agree to take such action as is necessary to amend this Agreement from time to time as is necessary for Covered Entity to comply with the Privacy Rule, the Security Rule, HIPAA, HITECH Act, and applicable state privacy and security laws and regulations.

3.         EFFECTIVE DATE; TERMINATION 

3.1       Effective Date.  Each term and condition of this Agreement shall be effective on the compliance date applicable to Covered Entity under the Privacy Rule, unless such term or condition relates to Electronic PHI only, in which event such term or condition shall be effective on the later of (a) the date set forth in the first paragraph of this Agreement, or (b) the compliance date applicable to Covered Entity under the HITECH Act.  This Agreement shall continue in effect unless terminated as provided in Sections 3.1 or 3.2. 

3.2       Termination without Cause.  This Agreement shall terminate when (a) all of the PHI obtained from Covered Entity or created or obtained by Business Associate on behalf of Covered Entity, is destroyed or returned to Covered Entity, or (b) each Underlying Contract has terminated or expired, provided that if it is infeasible to return or destroy the PHI, protections shall be extended to such information in accordance with Section 2.1.17 of this Agreement 

3.3       Termination for Cause.  Upon Covered Entity’s determination that there has been a material breach by Business Associate of this Agreement, Covered Entity may either: 

3.3.1.   Provide an opportunity for Business Associate to cure the breach or end the violation, and terminate this Agreement and, at its option, one or more Underlying Contracts, if Business Associate does not cure the breach or end the violation within the time specified by Covered Entity; or

3.3.2.   Immediately terminate this Agreement and, at its option, one or more Underlying Contracts, if Business Associate has breached a material term of this Agreement.

 

4.         MISCELLANEOUS

4.1       Regulatory References:  A reference in this Agreement to a section of the Privacy Rule, Security Rule, HIPAA, or HITECH Act means the section as in effect or as amended.

4.2       Interpretation.  As of the Effective Date, the terms of this Agreement shall prevail in the case of any conflict with the terms of any Underlying Contract to the extent and only to the extent of the conflict and only to the extent that it is reasonably impossible to comply with both the terms of the Underlying Contract and the terms of this Agreement.

4.3       No Third-Party Beneficiaries.  Nothing in this Agreement shall confer upon any person other than the Parties and their respective successors or assigns, any rights, remedies, obligations, or liabilities whatsoever.

4.4       Reimbursement of Notification Expenses.  In the event of a Breach, pursuant to Section 2.1.9 by the Business Associate, the Business Associate will reimburse the Covered Entity for all reasonable costs associated with all statutorily prescribed notifications related to the Business Associate’s Breach of Electronic PHI.

4.5       Right to Audit.  Business Associate understands and agrees that its access to PHI stored in databases and information systems at Covered Entity is subject to review and audit by Covered Entity at any time, that remote audits of such access may occur at any time, that on-site audits of such access will be conducted during regular business hours, and that any review or audit may occur with or without prior notice by Covered Entity.

4.6       Notices:  Any notice or document required or permitted to be given under this Agreement shall be deemed to be given on the date such notice is (i) deposited in the United States mail, postage, prepaid, certified mail, return receipt requested or (ii) deposited with a commercial overnight delivery service, to the principal business address of the recipient or such other address or addresses as the Parties may designate from time to time by notice satisfactory under this section. 

4.7       Limitation on Subcontracting.  Business Associate understands and agrees that it will not assign, delegate, or subcontract any of its rights or obligations under this Agreement to individuals or entities residing outside the United States.  Business Associate further understands and agrees that it will not assign, delegate or subcontract any of its rights or obligations under this Agreement to individuals or entities residing within the United States without the prior written consent of Covered Entity’s HIPAA Privacy Officer.

4.8       Governing Law; Jurisdiction.  This Agreement shall be governed by the laws of the State of Georgia and shall be enforceable in the courts of the State of Georgia, or in the United States District Court for the Northern District of Georgia.