SECTION 1: COLLECTION SERVICES
I
- RECITALS
A) Licensor is in the
business of providing a collection letter and skip account services pursuant to
which Licensor will provide to Licensee in accordance with the terms &
conditions below and the Fair Debt Collection Practices Act.
B) Licensee
authorizes Trojan to obtain credit information and report to credit bureaus on
licensee’s behalf.
II
– TERMS & CONDITIONS
1. Trojan Services. Trojan shall provide on request, collection
letter and skip account services as outlined in the Trojan Collection Services
Subscriber’s Manual. Licensee will
provide Trojan with appropriate identifying information as to itself and the
consumer inquired upon.
2. Charges to
Licensee. As
full and complete compensation to Licensor for the use of Collection Services,
Licensee shall pay to Licensor an initial fee as specified as “initial fee”. In addition, Licensee agrees to pay an annual
renewal as specified as “annual fee” on the anniversary of their agreement
regardless of the report activity in their account.
3. Transaction Fees. For each response (including “no record”
responses) Licensee agrees to pay Trojan the applicable charge then prevailing
for the various services rendered to Licensee.
Payment by Licensee shall be due ten (10) days following receipt of
invoice.
4. Trojan
Performance. Trojan
will exercise its best efforts to deliver credit information requested by
Licensee in an expeditious and efficient manner but it shall have no obligation
or liability to Licensee for any delay, failure or error of Trojan in its
performance under this agreement.
5. Maintenance of
Current Credit Information. Credit
bureaus will use their best efforts to regularly augment and maintain its
compilation of credit information gathered from its Licensees and other
customers and from selected public records.
In no event shall the credit bureaus or Trojan be liable for any
incidental or consequential damages, however arising.
6. Licensee Performance.
Licensee agrees to provide Trojan with complete
up to date information regarding payments or other activity for all consumers
reported as collection accounts or skips.
7. Licensee Use
Limitations. A)
Licensee hereby certifies and agrees that it will request and use credit
information received from Trojan solely in connection with transactions
involving the consumer as to whom credit information is sought and will not
request or use such information for purposes prohibited by law. All such information shall be maintained by
Licensee in strict confidence and disclosed only to employees whose duties
reasonably relate to the legitimate business purposes for which the information
is requested and will not resell or otherwise distribute the credit information
to any other parties, except as otherwise required by law. Failure to report payment on collection
accounts or other activity on skip accounts may result in immediate
cancellation of service and possible deletion of all accounts reported to
reporting bureaus. Licensee has read the Use Limitations and warrants to Trojan
that it intends to fully comply with said Limitations. In the event your Collection Services is terminated Trojan will
delete all of your previously reported accounts with Experian, Trans Union and
Equifax. B) Trojan reserves the sole right to cease any collection effort
including disputed accounts, prior disputes, accounts under investigation, and
any collection accounts protected under Federal or State Laws.
8. Trojan Use
Limitations. In
furnishing credit information to its other customers, Trojan will exercise its
best efforts to confine the ultimate use of such information to legitimate
transactions authorized by applicable law.
9. Negation of
Liability. Trojan
will exercise its best efforts to furnish Licensee accurate and reliable credit
information, but Trojan does not guarantee the correctness, currency or
completeness of such credit information.
Neither Trojan, its officers, employees, agents, or suppliers shall be
liable for any claim, injury or damage consequent upon furnishing such credit
information or providing Collection Services.
Licensee shall indemnify, defend and hold Trojan harmless from and
against any and all costs and liabilities which may be asserted against Trojan
based upon the improper use, errors or wrongful acts by Licensee of credit
information or Collection Services furnished to Licensee by Trojan.
10. Contract in
Entirety: Law. This agreement sets forth the entire
understanding and agreement regarding the Collection Services between Trojan
and Licensee and supersedes any prior or contemporaneous oral or written
agreements or representations; it may be modified only by a written amendment
duly executed by both parties. This
agreement shall be interpreted in accordance with the Laws of California.
1. Protected Health Information. Licensor and Licensee each acknowledge and
agree that some or all of the data and information to be provided each to the
other pursuant to this Agreement may constitute “Protected Health Information”
within the meaning of the Health Insurance Portability Act of 1996, and the
proposed privacy regulations issued there under (the “Regulations”). Licensee constitutes a “Covered Entity”
within the meaning of the Regulations, and Licensor is a “Business Associate”
within the meaning of the Proposed Regulations. As such, under the Regulations Licensee is permitted to disclose
Protected Health Information to Licensor and may allow Licensor to create or
receive Protected Health Information on Licensee’s behalf, subject to the
provisions of the Regulations and this Agreement. Protected Health Information typically received or generated by
Licensor includes an insured’s and/or patient’s name, social security number,
date of birth, and insured benefits, employer’s name, address and telephone
number, insurer’s name, address and telephone number, insured’s and/or
patient’s account balance with Licensee, past due amounts and dates of
delinquency, Licensee’s employer identification number and license number(s),
and, in certain instances, insured’s and/or patient’s treatment and treatment
history. Said Protected Health
Information is used by Licensor in order to provide to Licensee, as Licensee’s
Business Associate, the services which are the subject of this Agreement,
including to obtain benefit and eligibility information, to investigate claim
payment status, to process electronic claims, to monitor electronic claims
status, to run credit reports on patients and/or persons responsible for
payment, and to prepare and deliver payment demand letters, and to make reports
of delinquencies to credit reporting agencies.
2. Restrictions on Use by Licensor. Licensor
shall:
(a)
not use or further disclose the Protected Health Information other than as
permitted or required by this Agreement or as required by law;
(b) use
appropriate safeguards to prevent use or disclosure of the Protected Health
Information other than as provided for by this Agreement;
(c)
report to Licensee any use or disclosure of the Protected Health Information
not provided for by this Agreement of which it becomes aware;
(d)
ensure that any agents, including a subcontractor, to whom it provides
Protected Health Information received from, or created or received by Licensor
on behalf of Licensee, agrees to the same restrictions and conditions that
apply to Licensor with respect to Protected Health Information;
(e)
make available to individuals Protected Health Information of those individuals
in accordance with the requirements of Section 164.524 of the Regulations;
(f)
make available Protected Health Information for amendment and incorporate any
amendments to Protected Health Information in accordance with the requirements
of Section 164.526 of the Regulations;
(g)
make available the information required to provide an accounting of disclosures
in accordance with the requirements of Section 164.528 of the Regulations;
(h)
make its internal practices, books, and records relating to the use and
disclosure of Protected Health Information received from, or created or
received by Licensor on behalf of Licensee, available to the Secretary of
Health and Human Services for purposes of determining Licensee’s compliance
with the Regulations;
(j)
at the termination of this Agreement, if feasible, return or destroy all
Protected Health Information received from, or created or received on behalf
of, Licensee that Licensor still maintains in any form, and retain no copies of
such information, or, if such return or destruction is not feasible, extend the
protections of this Agreement to the Protected Health Information and limit
further uses and disclosures thereof to those purposes that make the return or
destruction of such information infeasible; and
(k) permit Licensee
to terminate this Agreement at any time if Licensee determines that Licensor
has violated a material term of this Agreement.
3. Contract Termination.
(a) Licensor
reserves the right to cancel this contract at any time with notification in
writing.
(b) Either
party may cancel the agreement with 30 days prior written notice.
(c) Should
the Licensee wish to reinstate at a later date, a reinstate fee will be charged
which may include but not be limited to unpaid balances, late charges, interest
and advance payment of account fees.
4. Miscellaneous.
(b) This
agreement shall be governed by and construed in accordance with the laws of the
State of California.
(c) In
the event any legal action or proceedings is brought in order to enforce the
terms of this Agreement, the prevailing party in such action or proceedings
shall be entitled to reasonable attorneys’ fees and costs incurred therein.
(d) Any
amounts that remain unpaid for a period of thirty (30) days shall be subject to
a late charge of 1.5 percent per month until paid.
(e) Licensee
agrees that it shall upgrade its computer and operating system from
time-to-time as shall be required in order to assure that the Licensee’s
computer system is at all times capable of running, operating, and supporting
all licensed media provided by Licensor to Licensee under this Agreement.
(f) The licensee agrees that all licensing fees and all
charges are non-refundable.
(g) Licensor
shall have the right from time to time to increase the amount of fees upon not
less than thirty (30) days prior written notice.
(h) Fees will
be billed to the Licensee at the end of each
month.
5. Business Associate Provisions.
Licensee
(the “Covered Entity”) and Licensor (the “Business Associate”) hereby mutually
acknowledge and agree that the following provisions are included in this
Agreement in order to comply with the requirements of the Health Insurance
Portability and Accountability Act of 1996 and its implementing regulations (45
C.F.R. Parts 160 – 164).
(a) Definitions. Terms used, but not otherwise defined, in
this Addendum shall have the same meaning as
those
terms in the Privacy Rule. As used
herein the following terms shall mean as follows:
1)
Individual. “Individual” shall have the same meaning as
the term “individual” in 45 CFR §164.501 and shall include a person who
qualifies as a personal representative in accordance with 45 CFR §
164.502(g).
2)
Privacy Rule. “Privacy Rule” shall mean the Standards for
Privacy of Individually Identifiable Health Information at 45 CFR Part 160 and
Part 164, Subparts A and E.
3)
Protected Health Information. “Protected Health Information” shall have
the same meaning as the term “protected health information” in 45 CFR §
164.501, limited to the information created or received by Business Associate
from or on behalf of Covered Entity.
4)
Required By Law. “Required By Law” shall have the same
meaning as the term “required by law” in 45 CFR § 164.501.
5)
Secretary. “Secretary” shall mean the Secretary of the
Department of Health and Human Services or his designee.
1)
Business Associate agrees to not use or
disclose Protected Health Information other than as permitted or required by
the Agreement and this Addendum or as Required By Law.
2)
Business Associate agrees to use appropriate
safeguards to prevent use or disclosure of Protected Health Information other
than as provided for by this Agreement.
3)
Business Associate agrees to mitigate, to the
extent practicable, any harmful effect that is known to Business Associate of a
use or disclosure of Protected Health Information by Business Associate in
violation of the requirements of the Agreement or this Addendum.
4)
Business Associate agrees to report to Covered
Entity any use or disclosure of the Protected Health Information not provided
for by this Agreement of which it becomes aware.
5)
Business Associate agrees to ensure that any
agent, including a subcontractor, to whom it provides Protected Health
Information received from, or created or received by Business Associate on
behalf or Covered Entity agrees to the same restrictions and conditions that
apply through this Agreement to Business Associate with respect to such
information.
6)
Business Associate agrees to provide access, at
the request of Covered Entity, and in the time and manner necessary to permit
Covered Entity to meets its legal obligations, to Protected Health Information
in a Designated Record Set, to Covered Entity or, as directed by Covered
Entity, to an individual in order to meet the requirements under 45 CFR §
164.524.
7)
Business Associate agrees to make any
amendment(s) to Protected Health Information in a Designated Record Set that
the Covered Entity directs or agrees to pursuant to 45 CFR § 164.526 at the
request of Covered Entity or an Individual, and in the time and manner necessary
to permit Covered Entity to meets its legal obligations.
8)
Business Associate agrees to make internal
practices, books, and records, including policies and procedures and Protected
Health Information, relating to the use and disclosure of Protected Health
Information received from, or created or received by Business Associate on
behalf of, Covered Entity available to the Covered Entity and to the Secretary,
in a time and manner necessary to permit Covered Entity to meets its legal
obligations or as designated by the Secretary, for purposes of the Secretary
determining Covered Entity’s compliance with the Privacy Rule.
9)
Business Associate agrees to document such
disclosures of Protected Health Information and information related to such
disclosures as would be required for Covered Entity to respond to a request by
an Individual for an accounting of disclosures of Protected Health Information
in accordance with 45 CFR § 164.528.
10) Business
Associate agrees to provide to Covered Entity or an Individual, in time and
manner necessary to permit Covered Entity to meet its legal obligations,
information collected in accordance with the terms and provisions of the
Agreement, to permit Covered Entity to respond to a request by an Individual
for an accounting of disclosures of Protected Health Information in accordance
with 45 CFR § 164.528.
11) Business
Associate will record for each disclosure that Business Associate makes to
Covered Entity or a third party of Protected Health Information that Business
Associate creates or receives for or from Covered Entity, (i) the disclosure
date, (ii) the name and (if known) address of the person or entity to whom
Business Associate made the disclosure, (iii) a brief description of the
Protected Health Information disclosed, and (iv) a brief statement of the
purpose of the disclosure (items i-iv, collectively, the "disclosure
information"). For repetitive
disclosures Business Associate makes to the same person or entity (including Trojan)
for a single purpose, Business Associate may provide (x) the disclosure
information for the first of these repetitive disclosures, (y) the frequency,
periodicity or number of these repetitive disclosures and (z) the date of the
last of these repetitive disclosures.
Business Associate will make this disclosure information available to
Covered Entity promptly upon Covered Entity's request. Business Associate must have available for
Covered Entity the disclosure information required hereby for the 6 years
preceding Covered Entity’s request for the disclosure information.
(c) Permitted Uses and Disclosures by
Business Associate
1)
Except as otherwise limited in this Agreement,
Business Associate may use Protected Health Information for the proper
management and administration of the Business Associate or to carry out the
legal responsibilities of the Business Associate.
2)
Except as otherwise limited in this Agreement,
Business Associate may disclose Protected Health Information for the proper
management and administration of the Business Associate, provided that
disclosures are Required By Law, or Business Associate obtains reasonable
assurances from the person to whom the information is disclosed that it will
remain confidential and used or further disclosed only as Required By Law or
for the purpose for which it was disclosed to the person, and the person
notifies the Business Associate of any instances of which it is aware in which
the confidentiality of the information has been breached.
3)
Business Associate may use Protected Health
Information to report violations of law to appropriate Federal and State
authorities, consistent with § I 64.502(j)(1).
(d) Obligations of Covered Entity
1)
Covered Entity shall notify Business Associate
of any limitation(s) in its notice of privacy practices of Covered Entity in
accordance with 45 CFR § 164.520, to the extent that such limitation may affect
Business Associate’s use or disclosure of Protected Health Information.
2)
Covered Entity shall notify Business Associate
of any changes in, or revocation of, permission by Individual to use or
disclose Protected Health Information, to the extent that such changes may
affect Business Associate’s use or disclosure of Protected Health Information.
3)
Covered Entity shall notify Business Associate
of any restriction to the use or disclosure of Protected Health Information
that Covered Entity has agreed to in accordance with 45 CFR § 164.522, to the
extent that such restriction may affect Business Associate’s use or disclosure
of Protected Health Information.
(e)
Information Safeguards.
Business Associate will develop, implement, maintain and use appropriate
administrative, technical and physical safeguards, in compliance with Social
Security Act § 1173(d) (42 U.S.C. § 1320d-2(d)), 45 Code of Federal Regulation
§§ 164.314(a)(2)(i) and 164.530(c) and any other implementing regulations
issued by the U.S. Department of Health and Human Services, to preserve the
availability of Electronic Protected Health Information, protect the integrity
and confidentiality of Protected Health Information, and to prevent
non-permitted or violating use or disclosure of Protected Health Information
created or received for or from Trojan.
Business Associate will document and keep these safeguards current.
(f) Term and Termination
1)
Term. The Term of
this Addendum shall be effective upon execution, and shall terminate when all
of the Protected Health Information provided by Covered Entity to Business
Associate, or created or received by Business Associate on behalf of Covered
Entity, is destroyed or returned to Covered Entity, or, if it is infeasible to
return or destroy Protected Health Information, protections are extended to
such information, in accordance with the termination provisions in this
Section.
2)
Termination for Cause.
Upon Covered Entity’s knowledge of a material breach by Business Associate,
Covered Entity shall either:
A.
Provide an opportunity for Business Associate
to cure the breach or end the violation and terminate this Agreement if
Business Associate does not cure the breach or end the violation within the
time specified by Covered Entity;
B.
Immediately terminate this Agreement if
Business Associate has breached a material term of this Agreement and cure is
not possible; or
C.
If neither termination nor cure are feasible,
Covered Entity shall report the violation to the Secretary.
3)
Effect of Termination.
1. Except
as provided in paragraph (2) of this section, upon termination, for any reason,
Business Associate shall return or destroy all Protected Health Information
received from Covered Entity, or created or received by Business Associate on
behalf of Covered Entity. This provision shall apply to Protected Health
Information that is in the possession of subcontractors or agents of Business
Associate. Business Associate shall retain no copies of the Protected Health
Information.
2. In
the event that Business Associate determines that returning or destroying the
Protected Health Information is infeasible, Business Associate shall provide to
Covered Entity notification of the conditions that make return or destruction
infeasible, Business Associate shall extend the protections of this Agreement
to such Protected Health Information and limit further uses and disclosures of
such Protected Health Information to those purposes that make the return or
destruction infeasible, for so long as Business Associate maintains such
Protected Health Information.
(g)
Miscellaneous
1)
Regulatory References.
A reference in this Agreement to a section in the Privacy Rule means the
section as in effect or as amended.
2)
Interpretation.
Any ambiguity in this Agreement shall be resolved to permit Covered Entity to
comply with the Privacy Rule.
IN WITNESS
WHERE OF, Trojan and Licensee have caused an Agreement to be
executed by their duly authorized representative as the authorized installation
of the software or process of transaction or acceptance under License Agreement
for Services (see separate document) or payment.