, the parties hereto agree as follows:
1. Confidential Information. As used in this Agreement, the term “Confidential Information” means confidential and proprietary information of any party, including, but not limited to, discoveries, ideas, designs, specifications, techniques, models, data, programs, documentation, processes, know-how, customer lists, marketing plans, pricing, PPO Network contractual terms and financial and technical information. “Confidential Information” shall also include any individually identifiable health information of Plan participants.
2. Exceptions. The parties agree that the term “Confidential Information” does not include information if and to the extent: (a) the information is or becomes generally available or known to the public through no fault of the receiving party; (b) the information was already known by or available to the receiving party prior to the disclosure by the other party on a non-confidential basis; (c) the information is subsequently disclosed to the receiving party by a third party who is not under any obligation of confidentiality to the party who disclosed the information; (d) the information is required to be disclosed as part of a judicial process, government investigation, legal proceeding or other similar process; or (e) the information has already been or is hereafter independently acquired or developed by the receiving party without violating any confidentiality agreement or other similar obligation. If any party is required to disclose the Confidential Information of another party as part of a judicial process, government investigation, legal proceeding, or other similar process, such party, if it is reasonably possible to do so, shall give such prior written notice to the other party to allow the other party to seek an appropriate protective order or modification of any disclosure.
3. Protection of Confidential Information. The parties shall not disclose the Confidential Information of another party to a third party without the prior written consent of such other party. The parties shall each use one another’s Confidential Information for the sole purpose of retaining AdvantUs’ services or accessing the PPO Network. The parties agree that the only agents, employees and representatives who will receive the Confidential Information of another party will be those who have (a) a need to know the Confidential Information of another party for the purposes set forth herein, including disclosing information to an employer, (b) been instructed to safeguard the Confidential Information from disclosure and treat such Confidential Information as confidential, and (c) been made aware of this Agreement and its terms. Each party agrees to notify the others of any unauthorized use or disclosure of the Confidential Information. The parties acknowledge and agree that the use or disclosure of any Confidential Information under this Agreement shall be in accordance with all applicable state and federal laws, including without limitation, HIPAA and any regulations promulgated thereunder.
4. Return of Written Information. Any and all written Confidential Information disclosed pursuant to this Agreement shall be returned along with all copies of the same to the disclosing party, or shall be destroyed, upon the request and at the option of the party that disclosed the Confidential Information. Notwithstanding the foregoing, each party shall be entitled to retain one copy of such Confidential Information in its files for the sole purpose of verifying compliance with this Agreement.
5. Ownership of Confidential Information. Nothing in this Agreement is intended to grant any ownership rights to any party, nor shall this Agreement grant any party any rights in or to another party’s Confidential Information, except to the limited right to use such Confidential Information for the purposes contemplated in this Agreement.
6. Business Associate Status. AdvantUs and Broker acknowledge and agree that AdvantUs may be a Business Associate, as defined by HIPAA, and has entered into a Business Associate Agreement with the Plan which sets forth its respective obligations pursuant to 45 C.F.R. 164.502(e) of HIPAA. In addition to its obligations hereunder, Broker hereby agrees to abide by the terms of such Business Associate Agreement, a copy of which is attached hereto, to the extent Confidential Information received is or contains “Protected Health Information,” as defined by regulations issued under HIPAA. Broker shall not, however, be deemed to be a subcontractor of AdvantUs.
7. Remedies. Each party agrees that the Confidential Information of the other parties is of a special and unique kind, the protection of which is essential to the operation of the party disclosing the Confidential Information, and that if there is a breach by any party of its obligations under this Agreement, the other party may have no adequate remedy at law. Therefore, in addition to any other remedies which may be available at law, the parties agree that the non-breaching party shall be entitled to injunctive relief, specific performance or other equitable relief or any or all of the foregoing, for any breach or threatened breach of this Agreement without the necessity of proving actual damages and without waiving any other remedies otherwise available at law or in equity.
8. Indemnification. Each party agrees to defend, indemnify and hold the others harmless from and against any and all losses, liabilities, damages, expenses, injuries, costs or obligations of any kind (including reasonable attorneys’ fees and disbursements) (“Losses”) arising directly from its breach of its obligations under this Agreement or its own negligence or willful misconduct.
9. Term. The obligations of confidentiality contained in this Agreement shall survive for the longer of (a) five (5) years following the termination date of this Agreement, or (b) two (2) years following the date that Broker no longer maintains Confidential Information.
10. Entire Agreement; Amendment. This Agreement embodies the entire agreement between the parties concerning the subject matter hereof and no amendment or waiver of any of the provisions of this Agreement shall be effective unless in writing and signed by all parties.
11. Assignment. No party shall assign, directly or indirectly, any of its rights, duties or obligations under this Agreement in whole or in part without the prior written consent of the other parties. This Agreement shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.
12. Severability. If any provision of this Agreement is or becomes invalid, illegal or unenforceable in any respect, it shall be ineffective to the extent of such invalidity, illegality or unenforceability, and the validity, legality and enforceability of the remaining provisions contained in this Agreement shall remain in effect.
13. Governing Law. This Agreement shall be interpreted in accordance with and governed by, construed and enforced in accordance with the internal laws of the State of Indiana and applicable federal laws.
14. Notices. Any notice given under this Agreement shall be deemed received if in writing, and if sent by hand delivery, facsimile transmission, receipt confirmed, overnight courier which provides confirmation of delivery, or certified mail, return receipt requested, sent to the applicable party at its address set forth with its signature to this Agreement, or to such other address or to the attention of such other person as either party may designate in writing pursuant to this Section. Notices sent by certified mail shall be deemed received three (3) business days following mailing.
15. Counterparts. This Agreement may be executed in any number of counterparts, each such counterpart shall be deemed to be an original, but all such counterparts put together shall constitute but one and the same Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized representatives as of the date first above written.