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EyeMed Vision Care Fee for service agreement. .. ~ ~ X38 ' ~ ~ ~f j } ~ 1 ;~ _.,,~, ~~ ~' ~ FEE FOR I j A ~ .134 aka ».sx e ~ ~ ~ d ", -. ~ d v~~t_QN cA~~~ ~ SERVICE ~ { holly owned subsidiary of EyeMed Vision. Care :~~ ~ AGREEMENT i Aw ._. , . , .. City of Mialmi Beach I. ~ i l :i ~ .~ , This Agreement is entered into by and between EyeMed Vision Care, L.L.C. (°°EyeMed") a;nd First American Admiri istrators~ ("FAA"); with their pnncipal place of business at 4000 Luxottica .Place, Mason, OH 45040 a'nd the City of Miami Beach with its principal .place of business at 1700 Cenvention Center-Drive, 3rd Floor; Miami Beach; Florida 33139_ , as Employer and ~~ Plan Administrator ("Emp,loyer"). ! ; j j 1 ~ _ RECITALS _ .~ ~ ~ i ' Employer provides benefits for its employees and #heir qualified dependents and now intends to offer vision .benefits to such Participants (as defined herein); ~ , i 3 i l ~ - Employer-has elected to pay for these vision benefits by self-funding vision benefits'under;its plan {the "Plan")~andj contracting out claims administration and Vision Network administration services;. ~ ' ~ , i I .Employer wishes to engage the services of EyeMed to provide a vision benefit, claims admilnistration, and Vision ~ etwork administration to assist employer in their responsibilities as Employer and Plan Administrators for self-funded vision benefits; ,. EyeMed makes its Vision Network of Participating Providers available to Employ ~r's' Memb ~ rs who havevision care • coverage; ~ i 4 . ~ ., _;~ First American, Administrators, Jnc: ("FAA"), is a wholly owned subsidiary of EyeMed and a duly licensed third-party ' administrator in required states to provide certain administrative services available to Employer's Members who have vision care coverage contained in their Plans: ; ~ { ,j ,NOW, THEREFORE, in accordance with theterms and conditions contained herein,i the parties agree as follows: ,I I. EFFECTIVE DATE; TERM AND RENEWAL ~ 1 . ,. ~ ~ - A. Effective Date i { This Agreement is effective January:1, 2010 ("Effective Date") and shall continue,until terminated pursuant to this Agreement. for purposes of this Agreement: {i) all references to Business Days shall mean a day when both EyeMed and/or FAA and Employer are open for business, excluding. Saturday and Sunday; and (ii) ~ny references to a particular time of the day shall be considered Eastern .Time: i ~1 ! - B. Term + , ~ 1 ~~ The Agreement shall commence on the Effective Date have an initial term of forty-eight (48) months. and shall renew for two 1 year renewals unless (i).Employer gives written notice to EyeMed at least ninety (90) days prior to the expiration Hof the initial term or any twelve (12) month renewal term; (ii) EyeMed gives written notice to Employer at least one hundred eighty (180) days prior to the expiration of the initial term or-any twelve (12) month renewalterm;:o;r (iii) the Agreement is "otherwise terminated in accordance with Section Xlll. ~ ~ ! ,i f ~ j ~ I C, 12enewaF ~ I . s` At least one hundred twenty (120) calendar days prior to the end of the current te1m :EyeMed shall provide Employer with written notice of the Vision Benefits revised rates for the renewal period. If Employer does riot agree to the revised rates, this Agreement shall. terminate at the end of the-current term. ~ ' { D. Definitions ~~ ~ ~ l Capitalized terms and otherwise. defined terms within the section are defined on Exhibit A. . + I ;j 1 k 01-24300 -Eye clF~aA~EiPI.-Ct`~E d SON-FRIBA ACR ~ E E~' / PRC3F~RIETARY ' ~ l . ~t~ ~ Page 1 ~, ~ f ~ , e ~ ~ ~ ' ~, j ~ ~ ~ i ; ,, . ~ ~ I ~ ~± I . .., ;. ~ ~ i ~ r IL ~ RESPONSIBILITIES OF EYEMED j ~ . ~ ~ I ~ . ~ = A. Services ~ , ~ ~~ EyeMed shall provide the followin ~ r . 9 I ~ ,, y ~ ., 1. Vision .Benefit ~ { . ~ . ~ ; .. t I ~ - EyeMed shalC make available ~to Members-the Vision Benefit as set forth on Exhibit. ~B at Participating Provider .locations. EyeMed shall also provide additional services, including but not limited to, responding to questions from Membersl, Providers and Employer regarding Vision Benefits. 2. Enrollment Information for Participants : 1 ~ ; 1 I ~ ~ ;j EyeMed shall maintain Participant enrollment records based on and in .reliance u'poh data furnished to it by Employer or it's agent. ~ ~ ,~ ~: i I ; a . 3. Identification Cards/Member'Materials/SPD Review. ! ~ j ~. ' EyeMed shall design, .produce and. distribute identification cards. In addition, upon request; EyeMed shall make available ,open enrollment materials and other, communication materials. €yeMed agrees #o review;and advise. concerning the description of Vision Benefits within Plan documents, including the Summary Plan Description and other materials intended for; distribution to Participants. , ~ I 1 4. Customer Service ~ ; } . .- ` } .EyeMed shalt train and maintain adequate levels of staff as determined by EyeMed and provide atoll-free telepho a number to respond to inquiries from Employer's administrative staff, Members and Participating Rr-o`viders concerning the Vision .. _ Benefit. • ~ E 5. ~ Web Access ~ i , i _ ~ ~ EyeMed. will maintain web access to the Vision Benefit and Member s eligibility information.`` . ~ i i 6. Usage Reporting ~ ` 'i .~ E eMed shall rovide standard'usa ere orts annual) as defined ti E eMed, at no char e. All other re uested re orts . Y p g p Y,, Y Y 9 q p shalt be, produced upon the mutual. agreement of the .parties, including but not limited to any associated cost(s) for; such report(s). ~ ~ ? ' 7: ' ~ .Repo ~ ~ i . rting Assistance for Employer ~ , . f EyeMed shall provide to Employer reports regarding the financial and claims experience of the Plan, and other iniformafion the Employer reasonably requires that assists Employer in its compliance with income taxi ERLSA reporting and disclosure . requirements. ~, ~ ; . B. Provider Network Services and Provider Locator Service ( j . 1. ~ Participating' Provider Network ~ ~ , EyeMed shall provide a Vision Network of ophthalmologists, optometrists, opticians, and retail optical locations that are contracted with EyeMed to deliverservices consisting of vision exams., matenals,~and contact lenses, at negotiated prices - ("Participating Providers"). Any addtons"or deletions to the Vision Network shall~be in EyeMed's sole discretion; provided, :however, that EyeMed will make reasonable efforts to provide Employer with reasonable advance notice of significant . changes in the Vision Network, which would materially affect the nature or extent~of service`s provided to Participants. - 'EyeMed shall reimburse the Participating. Provider at the- rate contracted between EyeMed. and the Participating Provider, which may bean amount different than what is set forth on Exhibit B. } ~ , { . ~ ~ ~ 2. - Participating Providerlndependent Contractor ( - EyeMed does not~employ Participating Providers and such providers are not EyeMed's agents or partners. Participating. - ~ Providers participate in tFie Vision Network only as independent contractors. Participating ,Providers are solely responsible .; for exercising .professional judgment related to a Participant's care. ~ ; , 3. Participating .Provider Locator . ~ i - EyeMed shall maintain a provider locator service of Participating Providers that the Member may access through ~a toll-free -' telephone numberor via the EyeMed.website. j . ~ ~, ~.c31. - Eyel~ttBAA-iPLO~ER 1 C)N-RfS,A ACREE~~Nfi I PRC?PRiETARY I ~ Page 2 i • ~ {' i ' } l 4. i i } t • ~ fi 4. . Credentialing - . I ~ ~ , EyeMed shall credential,. contract with, and re-credential each ophthalmologist and optometrist in accordance with. EyeMed s credentialing procedures, which meet NCQA standards. EyeMed may contract with a NCQA accredited credentials verification organization of their choice to perform verifications of the credentials. i • i 5. Nondiscrimination ~ - - EyeMed s Participating Providers Agreement requires Participating Providers make its.services available to Members on the same basis as those services are .provided to all other patients,,,and that Participating Provider shall not discriminate on the basis of age, sex; race, religion, or color. ~ • ~ '~ 6. ~ Balance Billing I . _ ~ :. EyeMed's .Participating Provider Agreement requires providers to not balance bill Members{ for Vision Benefits; provided', . however, a Participating Provider shall collect from Members any copayment or coinsurance amounts for which Members . are financially obligated under the Plan and any non-covered service(s). ~(j } (~ I f - C. Claims Processing Services ~~ 1.' Claims :Submission ~ - i FAA shall process in-network and out-of-network claims for Vision Benefits. In-network claims will be submitted directly to FAA by the Participating Provider. Out-of-network claims must initially be paid by the Member in full; the Member~may then submit the out=of-network claim directly to FAA on the appropriate claim form. EyeMed. shall make the out-of-network claim ` form available to Members through atoll-free telephone number. or on the EyeMed website~ I~ . - ~ ~ 4 2 < Claims Delegation. ; . } .Employer delegates to fAA the discretionary authority to determine the validity of claims and appeals under the .Plan. • 3. - Claims Processing Services ~ - ;• FAA shall' (a) determine the amount of Vision .Benefits payable, if any, for each claim; (b) n~ tify the Member itS decision • concerning the claim; {c) disburse payments fo the Participating Provider (per the Participating Provider Agreeme fit) or the .Member (per the out-of-network information on Exhibit B), as applicable.- FAA's services under this paragraph shall comply - -with the provisions of ERISA Section 503 and its implementing regulations, to the extent that they address initial claims for • . benefits.. ~ - . F j ~ . ( fi 4. .Claims Review .Services ( ~ I .FAA shall provide for a review of denied claims upon request by the Member. FAA shah .notify the Member of its decision on review. ,FAA's services under this paragraph .shall comply, with. the provisions ~f ERISA Section 503 and its implementing regulations, to the extent that they address decisions on review. ' I 5. - Run-Out Claims Services •' I E • I I . After the termination of this Agreement, .FAA shall continue to provide claims processin services and claims revie~ 9 services, but only for those claims incurred prior to the date of termination of the Agreement. FAA shall provide such. . services fora period of 12 calendar months (the "Run-Out Period") following termination. During the Run-Out Period,' FAA wilt continue to invoice the•Employer for the claims cost,. and will additionally=invoicethe Employer for an administrative fee . equal to 6% of the claims cost..Employer will be responsible for payment;of such' invoices.: ~ Invoicing.and payment procedures applicable during the term of this Agreement shall continue to be applicable during the Run-Out Period. This clause shall survive the termination of this Agreement. j ` f 111. RESPONSIBILITIES OF EMPLOYER ~ ~ i A. Responsibility for the Plan- . 1. Plan Administrator i - i {' ~' ~~ Employer is the Plan. Administrator (as that term is defined in Section. 3 (16) of the Employee Retirement Income S{ecurity Act of 1974 ("ERISA")) of the Plan. Employer may name another entity or individual as Plari Administrator; provided that such Plan Administrator is .not EyeMed or FAA and. is not an EyeMed or FAA employee. EyeMed or FAA expressly-decline to accept ;responsibility for being Plan Administrator. ~ . _ - ~ ~ . ~. . ~ I i . ! ~ i i I 1001~2tO - yc~FAA-EMPLOYER f SON-FRIBAs AC~EEMENT ~ PR?PRdETARY ! Page 3 1 E ~ . ~ I I ~ i t . 11 ~ ~ . . .. .. 1 i _ I ; . ( ! 2. Final Authority for-the Plan .Employer retains all final .authority and responsibility for the Plan and its operations. Both parties shall be responsible for compliance with-,any and.all applicable laws and regulations. ~ ~ . ~ } ., . a 3. Plan Amendment and Certification from Employer ~ Em to er re resents and warrants that: a its Plan documents have been amended, p , y p O • in accordance with 45 CFR §164.5b4(f), so as to allow Employer to :receive Protected Heath Information;~(b)~the Employer has received. a certification. from the Plan in accordance with 45 CFR §164:504(f)(2)(ii), and will- provide a copy of such certification to EyeMed prior to the Effective Date; {c) the Plan document amendments permit Employer to receive detailed invoices from FAA; grid (d) Employer has determined, through its own policies and. procedures, that the detailed invoice from FAA contains th`e . ~ minimum information .necessary for Employer to carry out its payment and health' care operations. B. Enrollment Services ~ i j ~ { . 1. Participant Enrollment Information j Employer~will determine Participants eligibility in the Plan. and provide EyeMed with data sufficient to enable EyeMed to " maintain accurate Participant enrollment records. In the event benefits under the Plan are made available to an individuaP who is no longer eligible to receive such benefits resulting from Employer's failure .to timely `notify FAA of the ineligibility of ~~ such• individual., Employer shall be liable to FAA for the payment of all benefits provided to such individual. i G 2. Membership File. _ _ ~ ' . Employer shall.be~ responsible for determining and identifying those individuals tliat the Employer determines is eligible to receive vision benefits under the Plan. ~. (a) Dafa Format. Employer will provide EyeMed with electronic Member enrollment in either (i}the EyeMed standard data layout format; or (ii) the format required by the HiPAA rule governing the enrollment and disenrollment in a health plan transaction, as outlined. in 42 CFR.162.1502, as it may beamended' from time to time. { (b) Data Transmission Method. The electroni k Member enrollment information shall be . sent to EyeMed utilizing either (i)`a secure FTP transmission or (ii) secure email. ~ (c) Data Updates: Employer agrees to provide full electronic file updates no more frequently than two (2) times .per calendar month in the agreed to format. Employer may also utilize the EyeMed Group .Portal for interim additions, changes or deletions related to Members and Employer agrees ~to include all such interim modifications on fhe next full electronic file. update. : # {d) Changes to Data~format. Employer and EyeMed must mutually~agree in advance to .changes to the electronic data format. Employer must contact the EyeMed Account Service Manager to submit a request to . change: the current data format.. ~ ± (e) Data Accuracy and Reliance. Employer represents and warrants that, to the best of :its ability,. fhe electronic Member enrollment will be accurate and that EyeMed may rely on such information to authorize services for such enrolled Members. . IV. INVOICING ARRANGEMENTS ~ j A. ~ Invoice for Vision Benefits FAA shall invoice Employer on a monthly basis for eligible claims processed and jpaid during the previous, month ("Claims. ;Invoice") In addition, FAA shall invoice Employer a monthly administration fee as set forth on Exhibit B (Administrative Invoice"). The monthly Administrative Invoice shall be determined. by multiplying the number of Members identified by Employer s electronic Member enrollment by the applicable rate set forth on Exhibit B. For purposes of the Administrative Invoice, FAA will count the Members who are active and eligible for the applicable billing month. as of the 15~n day of each month prior to the billing month in which the invoice is issued to Employer. For example, FAA will determine. the active and eligible .Members for the July invoice as of June 15tH ~ { B. Payment of Invoice ~! .Employer shall pay the entire amount of both the Claims Invoice-and Administrative Invoice' excludin onl "Dis ut ( 9 Y p ed Amounts", as defined below) within. thirty (30) calendar days from the date of each invoice. If any non=Disputed Amount ` • ~ ~ owned by Employer to EyeMed andLor FAA is not paid within sixty (60) calendar days of the date of such invoice, EyeMed may apply interest equal to one.and-.one-half percent (1,5%°) per month.. In addition, if any Disputed Amount agreed or determined to be owed by Employer to EyeMed is .not paid within fifteen (15) business days from the date of such. agreement or determination, EyeMed may. apply interest equal to one and one-half percent (1.5%) per month. Payment { shall be considered credited to the account of Employer when received by EyeMed.. As used herein, "Disputed Amounts" ~~0.1-21300 - EylledfFAA-- POYER 1 NC)N-FRIBA AGREE EST ~ PRC~PRIET'ARY ~ PacJe 4 shall mean invoice amounts- that are subject to a bona fide dispute raised by Em - . within fifteen (15) calendar days of the date of an invoice therefore and with rest reasonable, diligent and good faith efforts to resolve. V. RECORDS MAINTENANCE AND AUDIT A. Records Maintenance EyeMed owns and shall keep all books and records necessary to .reflect accur2 Employer and to determine the respective rights of the parties under this Agree at the principal place of business of EyeMed or at such other location as EyeME records will be maintained fora .period of at least seven (7) years after the date period as may be required by law. B. Audit Ayer in a writing received by EyeMed t to which the parties are making ly the business it transacts with respect to ent. Such books and records shall. be kept determines in its sole discretion: All ley are first prepared or for such conger During the term of the Agreement, and at any time. within twelve (12) months following its termination, Employer or a - mutually agreeable entity or a regulatory authority with jurisdiction over Employer may audit or inspect the records of . EyeMed_and/og FAA to determine.whether EyeMed and/or FAA is fulfilling the to ~ms of this.Agreement. Employer must advise EyeMed and/or FAA at least thirty (30) calendar days in advance of Employer's intent to audit. The place, time, type, duration,, and frequency of all audits must be agreed to in writing by EyeMed and/or FAA in advance of the audit, which approval shall not be unreasonably withheld..- 1. All audits shall be on a regular business day, during: normal business hours and conducted in such manner as to avoid, to the extent reasonably possible, interference with the normal. business functions of EyeMed and/or .FAA. Employer shall. be solely responsible for all costs of the audit, except for any EyeMed and/or FAA employee time and office space. In addition, Employer shall have the right to make copies,~at Employer's expense, of applicable files, records or other information maintained by EyeMed and/or FAA related to Employer. ' 2. All audits shall be limited to information gelatin to tfie calendar ear in which the audit is 9 Y conducted and/or the immediately preceding calendar year. With respect to EyeMed's and/or .FAA's transaction processing . services, the.. audit scope and methodology shall be consistent with generally acceptable auditing standards, including a statistically valid .random sample or other acceptable audit technique as approved in writing; • 3. Employer will ..provide EyeMed and/or FAA with a copy of an audit re orts. Y; P VI. INDEMNIFICATION ~ ' A. EyeMed and/or FAA Indemnification to Employer - EyeMed and/or FAA will indemnify, defend and hold Employer harmless from and against any loss, cost, damage, expense or other liability,. including, without limitation,. reasonable costs and reasonable attorney fees ("Costs") .incurred in connection with any third party claims, suits, investigations or enforcement actions, including claims of infringement of any intellectual property rights ("Claims") which may be asserted against, imposed upon or incurred by Employer and arising as a result of (i) EyeMed's and/or FAA's negligent acts or omissions or willful misconduct, or (ii) EyeM~d's and/or fAA's breach of its • obligations under this Agreement. EyeMed and/or-FAA shall not be liable to Employer for anythird party claims, suits, investigations or enforcement actions, arising directly or indirectly from the acts or omissions of a Participating Provider. B: Notification of Claim The party seeking indemnification shall notify the indemnifying party in writing wit any Claim. for which indemnification may be sought hereunder, and shall tender t indemnifying party thereafter. C. Survival This clause shalt survive the. termination of this Agreement. ' VII. INSURANCE hin thirty (30) calendar days of receipt of ie defense of such claim to the A. .Commerciale General Liability Insurance • EyeMed shall maintain Commercial General Liability Insurance, including coverage for contractual liability, public liability, property damage, products-completed operations, cross liability and severability of interest claims, .personal injury and advertising. injury,. with limits of at least: $3,000,000 ,per occurrence ~ - $6,000,000general aggregate ~ - . 1001-~00 - EyeMetil~AA--EfPLC~YER 1 l{t-FRIBA AGREEl1=NT f I~RtPR~TAI~Y Page 5 ' B. Workers' Compensation Insurance EyeMed shall maintain Workers' Compensation dnsurance with benefits afforded under the .laws of any state in which the services are to be performed and Employer's Liability insurance with limits of at least: $1;000,000 for Bodily Injury -each accident $1,000,000 for Bodily Injury by disease -policy limits ~. $1,000;000 for Bodily Injury by disease -each employee In states where Workers' Compensation .Insurance is~a monopolisticstate-run sys~em, EyeMed shall maintain Stop Gap Employer's Liability insurance with limits not less than One Million DoNars ($1,000000) each accident or disease. - C. Business Automobile Insurance - - . -EyeMed shall maintain Business Automobile Insurance with limits of at least One Million Dollars ($1,000,000) each accident for bodily injury and property damage, extending to all owned, hired and non-owned vehicles. D. Commercial Crime Insurance - _ . EyeMed shall maintain -Commercial Crime lnsura~nce with a limit of.not less than Three Million Dollars ($3,000,000). The ,policy shall provide .Employee Theft, Premises, Transit, Depositor's Forgery and Computer Theft and Funds Transfer coverages. The Commercial Crirne policy shall include a third party customer property coverage endorsement with limits of at least One Million Dollars($4,000,000). ~ ' E. Managed Care Error and Omissions'Insurance , - EyeMed shall maintaih Managed Care Organization Errors and Omissions Insurance with a policy limit of not less than Three Million Dollars ($3,000,000) each claim and in-the aggregate. F. Policies of Insurance--Financial Rating All policies of .insurance required of 'EyeMed herein shall be issued. by insurance companies having and maintaining a Financial. Strength Rating of "A minus" or better and a Financial Size Category of~"Vil" or better in the A.M. Best Key Rating Guide for Property and Casualty Insurance Companies, except that, in the case of Workers' Compensation insurance, EyeMed may .procure insurance from the stated fund of the state where services are to be ,provided. ~G. ~ Proof of Insurance Upon Employer's written request, certificates of insurance shall be delivered to .Employer upon execution. of the Agreement. Alf policies of insurance will ,provide for at least thirty (30) days prior written notice to Employer of the cancellation or substantial modification thereof. Alf ,policies required of EyeMed herein shall be endorsed to read that such policies are primary policies and any insurance carried by Employer shall be noncontributing with such policies VIII. LICENSE TO USE NAME AND TRADEMARKS ' - A. Employer's Use of EyeMed's Name :Employer may use the EyeMed name; as provided by,EyeMed (the "Licensed. Marks") solely in connection with communicating the~Vision Benefit to its Members, and shall not use the Licensed~Marks or any other trademarks, services marks or: trade. names of EyeMed- (.the "Trademarks") for any other purpose. Employer shall not use EyeMed's logo without prior written consent or inconsistent with the attached Link and Logo Terms and Conditions related to website linking. Employer shall not question, contest or challenge EyeMed's rights in and to the Trademarks, nor seek to .register the same. Employer expressly recognizes and acknowledges that the use of the Licensed Marks shall not confer upon Employer any proprietary rights to such marks. Upon termination of this Agreement, .Employer shall immediately stop using. the Licensed Marks. B. EyeMed's Use of Employer's Name EyeMed may use Employer's- name and logo(s) as .provided by Employer (the "Licensed Marks") solely in connection with communicating the Vision. Benefit; and shall not use the Licensed Marks or any other trademarks, service marks or trade names of Employer. ("Trademarks") for any other purpose. EyeMed shall not question, contest or challenge Employer's rights in and to the Trademarks, nor seek to register the same. EyeMed expressly recognizes and acknowledges that the Licensed Marks. shall -not confer upon EyeMed any .proprietary rights to.such marks..Upon termination of this Agreement, EyeMed shall immediately stop using the Licensed Marks. C. Remedies ~ . -The parties expressly agree and understand that the remedy at law for any'.breach by it of the terms of this section would be - - inadequate and the damages flowing.. from such breach are not readily susceptible to being measured in. monetary terms. X00°1-OCR -Eye ec1/AAA- L.OER I O-ERIS.A AGREE EST 1 PRt~I~RiETRY i°age ~, Accordingly,. it is acknowledged by each party that upon its .breach of any provision of this section, the non-breaching party shall be entitled to immediate injunctive relief and may obtain a temporary order restraining,anychreatened or further breach without the necessity of proof of actual damage. Nothing contained herein shall be deemed to limit the non-breaching . party's remedy at law or in equity for any breach by the breaching party of the provisions Hof his section which may be pursued or availed of by the non-breaching party. IX. : WEBSITE LINKING BY COMPANY ~ ~ ~ ~ " EyeMed'is .the owner oroperator of a web site located at www.eyemedvisioncare.com (the "EyeMed Site"). Employer is the owner or operator of a web site (the "Employer Site"). EyeMed and Employer desire to allow users of the Employer Site to link to the EyeMed Site landing on EyeMed's home page. In the event Employer establishes a hyperlink from Employer's Site to EyeMed's site the „parties hereby agree to the terms and conditions as set forth. in the attached Link and Logo Terms and Conditions, Exhibit C. X. PROTECTION OF CONFIDENTIAL INFORMATION Employer and': EyeMed shall not disclose to any other person, firm or corporation, or use for its own ..benefit except as provided herein, the terms of this Agreement, or any information that it receives from the other party that'is .marked either "Confidential`' or "Proprietary°' or "Strictly Private" or "Internal Data," or that is.any~unmarked information in the form of financial information or trade secrets (collectively referred to as "Confidential Information") without the express written authorization of the other party.. Both parties shall take all necessary steps to protect the other party's trade secrets and confidential business information and records. Upon the termination of this Agreement, both parties agree to return any and all materials containing such Confidential Information, plus any and all copies, written or machine made, in whatever medium,-that it may have, within ten (10) days of a request from the other party. Confidential Information shall riot include information that: A. Was, at the time of receipt, otherwise`known to the .recipient without restrictions as to use or disclosure; B. Was in the public domain at the time of disclosure or thereafter enters into the public domain through no breach of this Agreement by the recipient; - C. Becomes known to the recipient from a source other than the disclosing. party, which source has no duty . of confidentialityvith respect to the information;.. " D. Is independently developed by the recipient without reliance on or access to any of the disclosing party's Confidential Information; or E. Is required to be disclosed, by a government agency or bureau,' by a court of law or equity with competent jurisdiction over the recipient or by a recognized body engaged in professional self-regulation (such: as national accounting or auditing associations), provided that~the recipient will first have provided the disclosing party with prompt written notice of such required disclosure and will take .reasonable steps to allow the disclosing party to seek a protective order with respect to the Confidential Information required to be disclosed. The recipient will' promptly cooperate with and assist the disclosing party, at the disclosing .party's expense, in connection-with obtaining such protective order. t XI'. BUSINESS ASSOCIATE AGREEMENT/HIPAA PRIVACY In order to comply with 45 CfR §§163:314(A)(2), 164.502(e) and 164.504(e), goulerning .protected health information ("PHI") and business associates under the Health Insurance Portability and Accountability Act of 1996 (P.L. 104-191.), 42 U.S.C. . Section 1320d, et. seq., and .regulations promulgated thereunder, as amended from time to #ime (statute and, regulations hereafter collectively referred tows "HIPAA"), the parties hereby agree to the terms and conditions.described in the attached Business Associate Agreement-HIPAA Privacy, Exhibit D. Terms used, .but not otherwise defined, shall have the same meaning as those terms in HIPAA. XII. TERMINATION A. Voluntary Termination This Agreement may be terminated, without cause: (i) by mutual written agreement of the parties; or (ii) by either party providing one hundred eighty (180} days prior written notice without cause to the other party at any time during. the term of the Agreement or any renewal term. ~ B. Termination for Cause or Default ~ " Either party may terminate.this Agreement if the other,party is in material breach of this Agreement and fails to cure such breach within. thirty (30) calendar days after receiving. written notice reasonably detailing such breach. In the event that the . ' breach is not cured within the thirty (30) day cure period,. this Agreement shall terminate in accordance with the initial notice '10'I-2000 - Eye dIFAA-ETPC~YER 1 NCN-ERICA AGREEI'IET f PROPRIETARY Page 7 1~ `_ ~ of breach: Additionally, either party shall be deemed to have materially breached this Agreement upon the occurrence of any of the following events, which list is not intended to be inclusive of what cohstitutes.a material breach: 1. Either party shall• become insolvent or otherwise ad ~ it in writing its inability to pay its debts when they become due, becomes bankrupt, seeks protection under any law for the protection of insolvents,. or have a • receiver or conservator appointed under any law pertaining. fo such party's insolvency. 2. Either party fails to remit any amounts due (excluding Undisputed Amounts") under this Agreement within thirty (30) calendar days of the date such amount is due and payable. . . 3. Either .party shall knowingly commit a material violation of the laws or regulations of any state where this Agreement is performed. 4, • ~ - consideration by the other, eAny misrepresentation or falsification of any information supplied by Employer or EyeMed for • xcept that EyeMed. will not be responsible for any misrepresentation or falsification of , . information provided to it by a Participating Provider.; - 5. ~ .EyeMed or Employer ceases to engage in all business activities.. 6. ~ EyeMed substantially fails to perform its obligations under this Agreement, including but not ' limited to maintaining an adequate Vision Network of Participating Providers, .maintaining a Participating Provider locator service for Members to be able to locate Participating Providers, and maintaining sufficient customer service representatives to answer Member, and Participating Provider calls. 7. FAA is in default of its payment obligations to any Participating. Provider or Members with respect to the services rendered under this Agreement to the Member and fails to cure such default within ten (10) business . days of written notice from Employer, so long as FAA.does not dispute in good faith the amount that is owed to the Participating Provider or Member. If FAA disputes iri good. faith That any money is owed or-the amount which is owed, FAA is noon default under thisAgreement. XIIL GENERAL PROVISIONS A. Requirements Imposed by Law Each party agrees to adhere to legal requirements imposed by federal,, state or other law as of the date such. law becomes effective and applicable to this Agreement. . _ B, Independent Contractor • In the performance of the work, duties and obligations of the parties .pursuant"to this Agreement, each of the parties shall at alf tunes be acting and performing as an independent contractor, and. nothing in this Agreement shall be construed or ` deemed Ito create a relationship of ..employer and employee or partner or principal and' agent. C. Governing Law • This.Agreement shall be governed by and construed in accordance with~ERISA, federal law, and to the extent not ..preempted, by- the laws of the State of Florida. ' D. Entire Contract • This Agreement together with ali attachments contains' all the terms and conditions agreed upon by~ the .parties, and supersedes all other agreements, express or implied regarding the subject matter. E. Waiver , ' The waiver of any party of any breach of this Agreement shall not be construed as a continuing waiver or a waiver. of any- other breach of this Agreement. F. Attorney Fees • If EyeMed or:Employer find it necessary to enforce any ,part of this Agreement th dough legaf proceedings, resulting in final judgment by a court of.competent jurisdiction, Employer and EyeMed agree that each partyshall pay all of their own costs • ':and attorneys' feesincurred for such purpose. ~G. Severability. In;,the event that any clause, term, or condition of this Agreement shall be held invalid or contrary to law, this Agreement shall-remain in full force and effect as to all other clauses, terms, and conditions. 1t101-0Q m Eyel°edIFAA~E PLO`~E 1 ~3~EPISA AGPEE EST / PRC9P1~1°TAR~ P~ye 8 . } H. Force Majeure , No party to this Agreement shall .be liable for failure to perform any duty or obligation that such party may have under this Agreement where such failure has been caused by an act of God, fire, flood, strike, unavoidable accident, war or any cause outside the reasonable control of the party who had the-duty to perform. . I. Heading. ~~ The section headings used herein are for reference and convenience only, and shall not enter into the interpretation .hereof. J. Counterparts . This Agreement may be executed in several counterparts; each of which shall be deemed an original, 'but all of which shall constitute one Agreement: ,: K. Assignment. ` This Agreement may not be assigned by a party, in whole or in part, without the prior written consent of the other, except that a party may,.without the consent of the other, assign this Agreement to an affiliate. ' L. Successor/Survival - ,All terms of this Agreement shall be binding upon, inure to the benefit of, acid be enforceable bythe parties hereto and their respective successors and assigns. All 'rights and obligations of the parties arising out of this Agreement prior to termination which by their nature are. designed or intended, to continue shall survive the termination of this Agreement. M. Amendments- . - This .Agreement may be amended from-time to time by mutual. agreement between .Employer and .EyeMed, which amendment shall'be in,writing signed by the-parties. Notwithstanding any provision contained herein to the contrary, each - party shall have the right, for the purpose of complying with the .provisions of any law or lawful order, of a court:or regulatory authority, to amend this .Agreement including any Exhibits .hereto, to increase, reduce or eliminate any of the Vision Benefits ,provided under this Agreement... (f the parties cannot agree to an amendment, notwithstanding any provision of this -Agreement to the contrary, Employer or EyeMed may terminate this 'Agreement as of the end of any month by the giving of ninety (90) days prior written notice. . . N'. No Third Party Beneficiaries. Nothing express or implied in~this Agreement is intended or shalt be construed to confer .upon. or give any person, other than COMPANY and EyeMed, any right or remedies under or by reason - - of thisAgreement:- O. Notice - . ~41t notices, requests and demands under this Agreement shall be in writing: They shall be deemed to have been. given upon ' delivery if (i) delivered in person, (ii) mailed by certified mail; postage pre-paid and return receipt .requested, and {iii) deposited with an overnight delivery service by a nationally recognized overnight courier service. Notice shall be effective upon receipt grid shall be directed to the individuals below and at the address in the first paragraph. ;. ~ - .~ ' ~ if to Employer: Ms. Sue Radig _ - HR Administ ~ator If to .EyeMed or FAA , Ms. Liz DiGiandomenico President ~ . CC: EyeMed Legal £i1-DQ - Eye ttfEAA---EMPLOYER /NON-ERlSA AGREE EST I PROPRIEY,RY Page 9 . - . _ -. - - - fN WITNESS WHEREOF, the undersigned have executed this Agreement: , t f ' j I. . i - EyeMed Vision Care, tLC _ First Ameri ` Adm' istr tors, Inc. ~ . R / By. By; Liz Di i do nic ~ Liz DiGi o eni Title: esident Title: Pr dent / / //~ / pate: d ®/ Jam( l D t / . / ~ ~ /~ , a e:. '. City of Miami Beach i 1 - By. - Name: Matti~~Herrera Bower 'Title; Mayor ~ Date: s ~ 3 ?-D/~ .; = j By: Name: Robert=Parcher Title: .:City Clerk Dater -~ ~'3 yo~~ 0 . y . APPIROVED AS TO F~®RM-& LANGUAGE TIOIV Date Page ~ o EXHIBIT A- DEFINITIONS . I. DEFINITIONS The following terms used in this Agreement shall have the meaning as -set forth hereafter: A: "Agreement" shall mean the Fee for Service Agreement between.EyeMed and/or fAA and Employer B. "Business Days" shall mean a day when both EyeMed and/or FAA and Employer are open for business, - -excluding Saturday and Sunday. ~ . ~- C. "FRIBA" shalt mean the Employee Retirement Income Security Act of 1974. , D. "HIPAA"shall mean Health Insurance Portability and Accountability Act of 1996. . E. "Members" shall mean the Participant and eligible dependents who have health benefits under the Plan. - F. "Vision Network" shalt mean the collection of Participating Providers; the specific network as identified on . . ~ 'Exhibit B. - . ~ G "PHI" shall mean Protected Health Information. H. "Participants"shall mean the individual who has an employment arrangement, contractual arrangement, or affiliation with Employer. . ~: I. '`Participating Provider" shall mean the ophthalmologists, optometrists, opticians, and retail optical locations who are contracted with EyeMed to deliver services consisting of vision exams, materials, and . contact lenses,. at negotiated prices. . J. "Plan" shall mean, the .plan established by the employer or other entity for self-funding vision benefits. ~~ •K. ~ "Plan Administrator" shall mean the employer name in the plan document as responsible for day-to-day operations. Also known as the Employer. t_.. "Employer" shall mean ahe entity that sponsor, the vision. plan. M. "Vision Beneft"''shalt mean the vision. benefit as set forth on ..Exhibit B available to Members -from • Participating Providers. EXHIBIT B -BENEFIT SCHEDULE City of Miami Bosch ' ' EydYled Select Plan Q, Fee For Service Voleritary ' Option 1 Verstan3.5A isian Care Services Membsr Coat G7auP.Cost per putgi Network . Sarvlca Exam with Dilatlon as Necessary SO Copay S40 526 . Contact Lena Fit and Folow-Up: • (Conrad tens 1p x~ two falawarp vteits are available once a comprehensNe eye exam b~ boob completed,) • Standard Contact Lena Fit and Follow-Up: S6 Copsy, Paid-irrtull fd and two to~rr~P visits Sq0 yip` Premium Corrtad 4ns Fit and Follow-Up: SO Copay, -1695 oti refaq prka, glen apply S40 a6owetx;e Sq0 S40 . . Frames: . ray avadabb frame at provider location SO iApay, 575 ABowarice, 2095 oR Wiartca over SI$ - 541.25 gag ' ~ ' , Steridard PlasSe Lenses - .. - Single Vinton St0 Copay - 525 S98 aifor~i Sto copay ~ gq5 SS2 Trifocal $10 Copey $gp S56 Lenfiudar S10 Copay 5130 S66 3tart~rd Prograsahre Lens" SfOCopay 5110 $77 PrembJm Progressive Lena" 870. 6095 d Charge less 5920 ABawanee S1 t0 STl rAese.i'emaare5fs in Fq oR, tAUt LensOptionsc . UVTreatmera 50 $f5 Sit T!M{Soild and Gredlerit) 50 518 591 Sroftdard Plastic Saatdt Coating ~ 515 $it Standard Potycarbonate-Aduha 50 ~ S2B Standard Potycarlmna~-lQda under-19 ~ 540 if26 , Standard Amt-Reflectlve Coating SO Sqg ~ Polarized 2055 alt RetaY Ptica SO WA OHier Add-Oran 2095 09 f2etail Prlw - SO N/A Conhot Lanaee - (Gbnfad 1Lns atbwerx:e irlebde5 mekAab Dory) Ga'wenfional - ti0 Copey; 5150 ~bweneq 1595 od bal~lee over 5150 5727,6 5920 Disposable 80 Copay; 5150 eliawartcs, phis belartee over 5750 5150 St20 MedicaH Nacess SO C Pad-to-r'up a less r,~15 . 8200 ser 1/talon Correction I.ask or PRK tram U.S. Laser Network 1316 oN retell price or S95 oft promo0orrol price. NIA WA [donai Parts BeneRb Members ~9o receive 9 40°k discountoB complete pat eyepi~a purchcres and a 1596 dlacourq off cartventiortat eontsa lessee moe rre 6xded benefit has been WA fWA Ftequatwy: Examinatlon Once every 12 months Lenses or Contact Lanaea Once every 92 months Frame Cmce every 92 months ~ MonthlyAdttdnislratlve Fae , . ; Per Subscriber Per lWardfi (Compoaie) SD.54 , AB Plans are basednna QSmonth coMrad term and 4tF.rr~nth ri6e guuxrlee ' "Standard Progressive tans covered -fund Pretr9+m Progressive as a Standard Additional Discounts: Memtxsr rr.~ceivasa 20f6 discarad on iterre rrot covered by file plan at network Providers, aRrkh eartrot be canbkred with any a>Frac dlsCainb of prartrouanal oHera, OieraaY does rot apply fo EyeMed ProvMer's prolesstorreE servkes. or contact leraes. Wlembers atgo receive 1595 df rami price ar 595 dfP!omdiona! pdce for I.as81 ar PRK tram Bra US laser Netvrot$ owned and operated iry LCA Vlsbn Mier IruGal ptuct>ase, replacemerd lenses may Da ahtakted vie the ir8enief at slrbslanBal savtr>Bs and mailed diradty to the member, pets a2 8vasabte ~ 1vaw.eyemadvlsieneire.ocm. . Toe aontact lens berm! aawrarwe is rx>l applicable to din sdvice. . BarreAt AAOwarrces Provide no rarnairdrte balanw tar firtue use vrRAiri the same Baredt Frequency. Cert~n brand name Vialon Matarlab in tvtddl tl76 ~ imposes a rw~ksrolatt pretties. . Rates are valid far groups dorNeged to the Stabs of FL Fees quoted wIg be vafid rm4711re 11120'l0 plan 3nlplarneMa6on date. Data quotetC 428/1009. Rates essrune 10096 empioyea rontrttwgmr for empbyees and dependents.• Pim Exduslons: t) Orthoptlc or vision bairdrtg arrbrnnnal vision e[ds erW cry aseadated supplemental tesgng; Aneselkanio lenses; 2} Medical BriCYOf aurgiea!} 1rea07Mnt Of the ey4 eyes o<segfportirrg btf11C91re5 3) Arty eye or Vision Fxarrdna5an, ar cry corrective ayewear fegtdred by a Pdkyholder as a mtrdtHwr ar errrploymerd; Salary ayewear 4) Setvtces Provided as a react or my Wodre[s' Conipensatton Isar, a s6Mar ieghlaStcrL ar requtred by any govenanentel agency ar t wtreemr federal state ar sub~vlalans 8rer'eet 5) Plano (non-PresatPGon) fensea end/ar contact lenses; ~ Nan-presufp6at atag[sesaa; 7} Tw parr of 9teasea in Aeu of b(focals; - 6} SeMees or rnatelSab pfOVided by artil other group benefit Pdraiprovidirrg vis[on care: 9} Services rendered after the date an Insured Persoh ceases m be covered ruder Bra lsOgey, mtceptwhen Visbn Matmlals oraetad balsa and the servtCes rerwered to the Insured Person are within 81 days from the date Cl stx~: ot~ coverage arrded ate de6vercd, 10 Lost a lualwn Ienaea frames, lasses. or caNactlerrsq will oat be re aced in the nextt3enefit F vhcen Vision Matatala rwr9tl nmd become avaitet>fe. ~-~ - TCO Page 12 . EXHIBIT C -LINK AND LOGO TERMS AND CONDITIONS L LINKING RIGHTS . ~ , A. Use of Everted Marks. EyeMed hereby grants Employer the limited right to use the EyeMed Marks on the Employer Site as a hyperlink to the EyeMed Site (the'`Hyperlink"). "EyeMed Marks" means the trademarks, service marks., domain names, logos, and identifiers of EyeMed listed in Attachment A to this Agreement, which is incorporated .herein. . B. Hyperlink. The Hyperlink will. only be accessible fo those ..Employer Members users who are valid and . existing Employer Members. Employer agrees to provide EyeMed upon request all information and data necessary to ~. authenticate such users access to the EyeMed Site. • C. Ownership of Materials. Each Party retains all rights, title and interest in and to their respective web sites,. including all intellectual property rights therein. All rights, title and interest in and to the EyeMed Marks, including all intellectual property rights therein, are owned and retained exclusively by EyeMed and its affiliates. II. REPRESENTATIONS AND WARRANTIES. A. EyeMed. Marks. Employer represents and warrants that: Employer will not (i) use, register or attempt to register any EyeMed Mark as its own, (ii) use, register, or attempt to register any name, logo, mark, domain name, or other identifier which is likely to lead to confusion with the EyeMed Marks, (iii) use the EyeMed Marks in a manner likely to disparage or misrepresent EyeMed, or (iv) use the EyeMed Marks in a manner not expressly permitted by this Agreement or approved in writing by EyeMed. EyeMed represents and. warrants that it owns the EyeMed Marks or otherwise has the right to grant the licenses granted herein. B. The Sites. Each Party represents and warrants to the other with regard to its respective Site that (i) it is the owner or otherwise has the-right to use and provide the Site; (ii) the Site is not and will not be obscene, defamatory, libelous, or otherwise offensive to a reasonable person; (iii) they employ customary security measures standard in the industry to protect access to the: Sites and (iv) the Site will not be fraudulent,. misleading, or in violation of any applicable law. C. DISCLAIMER OF WARRANTY: EYMED EXPRESSLY DISCLAIMS, AND EMPLOYER HEREBY EXIRESSLY WAIVES, ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE WITH REGARD TO THE EYEMED .MARKS. 111. TERMINATION EyeMed may terminate this Agreement immediately upon any breach or threatened breach of this Agreement. Either Party may terminate this Agreement upon sixty (60) days notice to the other Party in writing. This Agreement shall terminate automatically in the event of termination or expiration of any other agreement between EyeMed and Employer. UPON TERMINATION OF THIS AGREEMENT FOR ANY REASON, Employer WILL REMOVE THE HYPERLINK AND ALL 'REFERENCE TO EYEMED AND THE EYEMED MARKS FROM THE EMPLOYER SITE. THE OBLIGATION OF THE PARTIES WITH REGARD TO INDEMNIFICATION AND LIMITS ON LIABILTY SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT FOR ANY REASON. IV: GENERAL. • • Employer shall not assign any of its rights or obligations under this Agreement to any other entity without the prior written consent of EyeMed, provided that no such consent shall be necessary in connection with an internal reorganization or assignment to an affiliate. This Agreement is the entire agreement between the parties concerning the subject matter hereof. -. No amendment or modification of this Agreement shall be made except by a writing signed by both Parties. This Agreement will. be governed by and construed in accordance with the laws of the State of Ohio, without. giving effect to any choice of law or conflict of law provision or rule. Notices .required hereunder shall be sent to the address of the respective Party set forth in the first paragraph of this Agreement. Either Party may designate a different notice address by notice given in accordance • herewith. '100'1-t1Q -Eye ed/FAQ-EM€~LOYER J NON-FRIBA AGREEMENT I PROPRIETARY F'~ge 13 Attachment A EYEMED MARKS " Logo. The EyeMed logo-most recently p"rovided by EyeMed and described in this Exhibit A (or in any such revised logo ;display standards.) is the only logo that may be used by Employer. " ~~ . ~ ~. _ .- ." t s ~ : ~~ own ~) ~~ d ~~ "~c ~, ~ ~ r ggg^^^ ~ .~ ~ ~ ~ ?~ ~ S it ~' f y ~ " " " ~... /.~w4r.., e'~~ ~R~~7 4 ~.t'i .~+"~a'nw wv .Y ~YNUbww ~'"i9n w,~ur ~n mw r - ~.. ~ ww~~'~'"M&,,,b?~im~. "~Mw rw~r e~ mn wiwwau ~nrr~rr - b 1 qq , ~ . ~ ~ r~ t ~~ _. ~ .. ~ µ u yK,~~__ ~_ EyeMed Vision Care Attachment B - f EYEMED INTERNET USE GUIDELINES, , Upon execution of the Fee for Services.Agreementwlth EyeMed you will be granted the limited right to use the EyeMed name; trademarks and logos {"marks") in accordance with these Guidelines. • Requirements for Internet/Web Site Use and Hot Linking • ~ Use. of the EyeMed name and -logo on your web site is permitted for the purpose of providing a link to the EyeMed web site (www.eyemedvisioncare.com), so long as the link satisfies all six (6) of the following requirements: • a. Delivers users to the EyeMed homepage at www.eyemedvisioncare.com. b. Provides users with a "point and click" feature clearly indicating the link will lead to the EyeMed homepage at - www.eyemedvisioncare.com.. . • . c. Does not. represent or suggest any relationship between the linking site and EyeMed- Vision Care (in suggestions. of affiliation, endorsement, or sponsorship). d. Maintains the integrity of the EyeMed layout, content, and .look and feel. e. Delivers users to the EyeMed web site, unaltered, unmodified, unadulterated in any way. . f. Delivers the EyeMed content in its own browser and does not frame the EyeMed content in any way or through any action, including, but not limited to referencing EyeMed or EyeMed Vision Care as ~a metatag, which. may create a misimpression or confusion among users with respect to sponsorship or affiliation. Eligibility . Any deviation from these Guidelines require prior written approval from EyeMed. Questions regarding use of the EyeMed marks should be addressed to eyemedmarketing@eyemedvisioncare.com. Revisions These Guidelines may be revised from time to-time at the discretion of EyeMed or its parent company. EXHIBIT D -BUSINESS ASSOCIATE AGREEMENT / HIPAA PRIVACY A. ~ HIPAA Compliance and Agents. EyeMed"and/or FAA hereby agree to fully comply with the "Business . ~ Associate" requirements under HiPAA, including, without limitation; 45 CFR §§163.314(A)(2), 164.502(e) and 184.504(e). Further, EyeMed and/or FAA agree that to the extent it .has access to PHI, EyeMed and/or FAA will fully comply with the requirements of HIPAA with .respect to such PH1; and, further, that every agent, employee, subsidiary, and affiliate of EyeMed and/or- FAA to whom it .provides PHI received from, or created or received by EyeMed and/or FAA on behalf of, Employer will be required _to fully comply with HIPAA, .and will be bound by written agreement to the same restrictions, terms and conditions as set forth in this Exhibit. Employer maintains a Notice of Privacy Practice ("Notice") and EyeMed and/or FAA acknowledges that it hasreceived a copy of such Notice (attached hereto), has read and understands its terms, conditions, and hereby agrees to the extent applicable, to comply and act in accordance with such Notice as it may be amended from time to time by Employer. For~purposes of this Exhibit PHI is defined as health information created, received, maintained, or transmitted,by `~ Business.Associate on behalf of Employer, including demographic information collected from an individual, and that relates to the past, present, or future physical or mental health or condition of an individual; the provision of health care.to the individual; or the, past, present or future payment for the provision of health care to the individual and (i) that identifies the individual; or (ii) with respect to which there is a reasonable basis to believe the information can be used to identify the individual B. Use and Disclosure; Rights. EyeMed and/or FAA agrees that it shall. not use or disclose PHI except as permitted under this Exhibit and HIPAA. EyeMed and/or .FAA may use or disclose the PHI received or created by it, (a) to perform its obligations under this Exhibit, {b) in order to properly manage and administer its business, (c) to carry out its aegal responsibilities if the disclosure is.required bylaw, or (d) for data aggregation functions, as defined by HIPAA. If pursuant to subsections (a), (b), (c} or (d) above EyeMed and/or FAA discloses PHI to others, EyeMed and/or FAA agrees to obtain reasonable assurances from the person. to whom the information is disclosed that it will be held' confidentially and used or further disclosed. oriiy.as required by law or for the purpose for which it is disclosed to the person and the .person notifies EyeMed and/or FAA of ariy instances of which it is aware that the confidentiality of the information has been breached. t . C. Safeguards; Location. EyeMed and/or_FAA agrees to implement, document, and use administrative, physical, and technical. safeguards. that prevent any use or disclosure of PHI other than as permitted or required by this Exhibit, and that reasonably and appropriately protect the confidentiality, integrity, and availability of any electronic PHI that it creates, .receives, maintains, or transmits~on behalf of Employer. Business Associate agrees to notify Employer of the location of any PHI disclosed by Employer or created by Business Associate on behalf of Employer and .held by or under the control.. of .Business Associate or those to whom Business Associate has disclosed such PHI. D.. .Security Rule. EyeMed and/or FAA shall implement administrative, physical and technical. safeguards ..that reasonably and appropriately protect the confidentiality, integrity and availability of electronic protected health information ("ePHI") that it creates, receives, maintains or transmits on behalf of Employer, as required by the Security-Rule. EyeMed and/or FAA shall report to Employer any Security Data Compromise of which EyeMed and/or FAA becomes aware. EyeMed and/or FAA shall ensure that any agent, including a subcontractor, to whom it provides ePHI, agrees to implement reasonable-and appropriate safeguards to protect such information. E. Minimum Necessary. EyeMed and/or FAA will limit any use, disclosure, or request for use or disclosure to the minimum amount necessary to accomplish the intended purpose of the use, disclosure, or request in accordance with ~. the requirements of HIPAA. Employer covenants that in all uses, disclosures,. and requests it will include only the minimum .:amount of PHI necessary to accomplish the permitted or required use or disclosure as set forth by the agreement and in accordance with the requirements of HIPAA. Employer may, pursuant to HIPAA; reasonably rely on any requested disclosure as the minimum necessary for the stated purpose when EyeMed and/or FAA request the information. EyeMed and/or FAA acknowledge that if EyeMed and/or -FAA is also a covered entity, as defined by HIPAA, EyeMed and/or FAA is required, independent of EyeMed's/FAA's obligations under this Exhibit, to comply with the HIPAA minimum necessary requirements when making any request for PHI from Employer. F. Records;,. Employer Access. EyeMed and/or FAA shall maintain such records of PHI received from, or .created or received on behalf of, Employer- and shall document subsequent uses and disclosures, other than as for treatment, payment, or healthcare operations, pursuant to a valid authorization, or otherwise excepted from the accounting requirement under HIPAA, made by EyeMed and/or FAA as may be deemed necessary and. appropriate in the sole discretion of Employer. EyeMed and/or FAA shall provide the Employer with reasonable access to examine and copy such .:records and documents of EyeMed and/or FAA during normal business hours:. G: DHHS Access_to Books, Records and Other Information. EyeMed and/or FAA shall make available to the U.S. Department of Health. and Human Services ("DHHS") its internal practices, .books, and records relating to the use and disclosure of PHI received from, or~created or received by.EyeMed and/or FAA on behalf of .Employer for purposes of determining the Employer's or EyeMed's/FAA's compliance with HIPAA. EyeMed and/or FAA agrees to fully cooperate in good faith with .and to assist Employer in complying with the requirements of HIPAA and any investigation of Employer ~ ' "regarding compliance with HIPAA conducted by DHHS,. Office of Civil Rights or any other administrative or judicial body with 100°9-C3 -EyeMed/FAA--E Pl.OYER 1 NCB-ERICA AGREE ENS I P®PRIETARY Page 10 ,jurisdiction; including.,. but not iimit~ed to, disclosing,. providing access to or an accounting of any PHI as Employer may request. H. Designated Record Set: Individual Access. EyeMed and/or FAA shall maintain a designated record set, as defined by HIPAA, for each individual patient for which it has PHI . 'In accordance with an individual's right to access to their own PHI under HIPAA and the individual's right to copy or append such records, EyeMed and/or fAA shalt make available all. PHI in that designated record set to Employer, or at the direction of Employer, the individual or such individual's representative.; i. Accounting: Beginning April 14; 2003, EyeMed and/or FAAshall promptly make available to Employer any PHI or any other information required to prepare, or assist inpreparing, an accounting of disclosures in accordance with HIPAA. EyeMed and/or fAA agrees to document disclosures of PH1 related to disclosures as would be required for Employer to respond to a request for an accounting of disclosures. EyeMed and/or FAA must have this information and documentation. available- for the six (6) years preceding any request by such Employer; provided, however, that EyeMed and/or FAA is not required to have any such information for any time prior to April 14, 2003. J. Report of'Improper Use or Disclosure. EyeMed and/or FAA shall immediately report to Employer any information of which it becomes aware concerning any use or disclosure, of PHI that is not permitted by this Exhibit or any "security incident," as that term is defined by H1PAA. This report shall identify the nature of the violating use or disclosure, the PHl used or disclosed, who made the violating use or received the disclosure and what corrective action EyeMed and/or FAA has or will take to prevent further violations, including any mitigation, and .provide any other information as EyeMed and/or FAA requests.. K. Amendment of and Access to PHI: Notification. EyeMed and/or FAA shall make available PHI for amendment and shall incorporate any amendments to PHl .in accordance with HIPAA. EyeMed and/or FAA shall make reasonable efforts to notify persons, organizations, or other entities, including, but not limited to, other business associates, known by EyeMed and/or FAA to have received erroneous or incomplete PHI and who may have relied, or could foreseeably rely, on such. PHI to the detriment of the individual. EyeMed and/or FAA must update this information as .requested by Employer. L. .Individual Authorizations: Restrictions. Employer will notify EyeMed and/or fAA of any restriction to the use or disclosure of PHI that Employer has agreed to with an individual or of any changes in or revocation of an authorization or other permission by an individual, to the extent that such restriction, change, or revocation may affect EyeMed's/FAA's use or disclosure of PHI. M. Termination Rights: Mitigation. EyeMed and/or FAA acknowledges and agrees that Employer shalt have the right to terriminate the Agreement in accordance with this Exhibit in the event EyeMed and/or FAA breaches or fails to comply with the requirements set forth. in this Exhibit. In addition, Employer may immediately terminate the Agreement, if Employer determihes, in its reasonable discretion, that EyeMed and/or 'FAA has failed to comply with a material term of the Agreement required by HIPAA or is substantially not. in compliance with the requirements of HIPAA. In addition. to its obligations under this Exhibit, EyeMed and/or FAA shall take any other reasonable actions available to it to mitigate any , detrimental effects of such violation- or failure to comply. N. Breach: Knowledge. If Employer knows of a pattern of. activity or practice of EyeMed and/or FAA that constitutes a breach or violation of EyeMed's/FAA's obligations under this Exhibit, Employer and EyeMed and/or .FAA shall take any steps reasonably necessary to cure such breach and make EyeMed and/or fAA comply, and, if suchsteps are unsuccessful, Employer shall either (a}terminate the Agreement, if feasible, or (b) if cure and termination are not feasible, discontinue disclosure. of PHI. to EyeMed and/or FAA and report the breach or violation to DHHS. If EyeMed and/or FAA is a covered entity, defined by HIPAA, violates the terms and conditions of the Agreement or any other agreement in its capacity as a business associate of another covered entity, :EyeMed and/or FAA will be, for purposes of this Exhibit, substantially not in compliance with HIPAA. . O. Electronic Standards and Code Sets Regulations. If EyeMed and/or- FAA or any of its subcontractors or agents conducts in whole, or in part,. electronic transactions on behalf of Employer of the type covered by HIPAA or any . regulations promulgated pursuant thereto, including Standards for Electronic Transactions and Electronic Code Sets, EyeMed and/or FAA will, and. will. require any of its subcontractors or agents to comply with each applicable. requirement of such .regulations. P. Return of PH1. EyeMed and/or FAA agrees that .upon termination of the Agreement, and if feasible, EyeMed and/or FAA shall, at its expense, return or destroy all PHI received from, or created or received by EyeMed. and/or FAA or any of, EyeMed's/FAA's subcontractors or agents on behalf of, Employer that EyeMed and/or FAA or its ..subcontractors or agents maintain or control in any form or manner and retain no copies of such information. If, however, EyeMed and/or FAA claims-that such return or destruction is riot feasible, EyeMed and/or FAA shall immediately notify Employer of the reasoris return or destruction. are not feasible. Furthermore, the protection afforded to such PHI by the Agreement shall be extended indefinitely and EyeMed and/or FAA shall limit further uses and disclosures to those purposes that make the return or destruction of the,PHl not feasible. £3'1~2Q - EyeMcfA-E '?t.O°lER 1 NON«ERlSA AGREE ENT 1 PRO~IETAR~ Page 17 Q. Non-Waiver. The failure by any party to insist upon strict compliance with any term or provision of this Exhibit, to exercise any option, to enforce any right, or to seek any remedy upon any default of any other party shall not affect, or constitute a waiver of, any party's right to insist upon such strict compliance, exercise that option, enforce that right, or seek that remedy with respect to that default or any prior, contemporaneous, or subsequent default. No custom or practice of the parties at variance with any provision of this Exhibit shall affect or constitute a waiver of, any party's right to demand strict compliance with all provisions of this Exhibit. R. Survival. All representations, covenants, and agreements in or under this Agreement or any other documents executed in connection with the transactions contemplated by this Agreement shall survive the execution, delivery, and performance of this Agreement and such other documents. The respective rights and obligations of EyeMed and/or FAA under this Agreement shall survive termination or expiration of this Agreement. "100'f -200(3 - EyeMedfE~4A-EMPL®YER 1 N®N-ERISA. AGREEMENT / PRC3P'RiETARY Page 18