1. Contract Documents and Effective Date: These Essilor Vision Foundation Changing Life through Lenses® Terms and Conditions ("Terms and Conditions") supplement and are made a part of the Essilor Vision Foundation Changing Life through Lenses® Agreement ("Contract") by and between the legal entity or individual identified as the participant (“Participant”) on the Essilor Vision Foundation Changing Life through Lenses® registration form (“Registration Form”) and Essilor Vision Foundation ("EVF”). The Contract consists of (i) these Terms and Conditions, and (ii) if applicable, the Business Associate Agreement (which is set forth on the Registration Form if Participant is a covered entity under the Health Insurance Portability and Accountability Act of 1996). Your use of the Changing Life through Lenses® online platform (“Portal”) is also subject to the Terms of Use and Privacy Policy posted on www.evfusa.org; provided, that in the event of any conflict between the Contract and the Terms of Use and/or Privacy Policy, the provisions of the Contract shall prevail. If you accept the Contract, the date on which you click the “Submit” button shall be the effective date of the Contract (“Effective Date”). BY CLICKING THE “SUBMIT” BUTTON, (i) YOU ARE BINDING PARTICIPANT TO THE CONTRACT, THE TERMS OF USE, AND THE PRIVACY POLICY, AND (ii) IF PARTICIPANT IS A LEGAL ENTITY, YOU ARE REPRESENTING AND WARRANTING THAT YOU ARE AUTHORIZED TO AGREE TO THE CONTRACT, THE TERMS OF USE, AND THE PRIVACY POLICY ON BEHALF OF PARTICIPANT.
2. Program Information: EVF is a non-profit organization committed to eliminating poor vision and its lifelong consequences and to providing underprivileged people the opportunity to live a better life through better sight. EVF works with nonprofit organizations and socially responsible vision care providers across the United States to provide in-kind donations of lenses and manufacturing of glasses for use by Eligible Patients (the “Program”). “Eligible Patients” are individuals (i) living at or below the poverty line; (ii) who are not covered by vision insurance for the pair of glasses to be provided in connection with the Program; and (iii) who could not otherwise afford vision services, as reasonably determined by Participant. EVF has created the Portal to facilitate registration and participation in the Program. Participant acknowledges that the current focus of the Program is on youth and agrees to use reasonable efforts to provide products supplied by EVF (including lenses and/or frames) primarily to Eligible Patients who are minors. Participant further acknowledges and agrees that, upon reasonable advance notice to Participant, EVF may from time to time revise the definition of Eligible Patients and the criteria for determining eligibility.
3. Program Materials: EVF will make available to Participant educational resources and materials describing how Participant may conduct and optimize its charitable activities in connection with the Program (“Program Educational Materials”) and may make available to Participant certain assets or materials to promote Participant’s involvement in the Program (“Program Promotional Materials”) (Program Educational Materials and Program Promotional Materials, collectively “Program Materials”). Participant may make copies of Program Educational Materials solely for use by Participant and Participant’s employees in connection with the Program. Participant shall not copy Program Promotional Materials without EVF’s express written approval. If Participant has an opportunity to promote the Program with Program Promotional Materials, upon Participant’s request, EVF will provide Participant with the EVF logo lock up and graphic standards to be used, subject to EVF’s prior written approval in each instance. Participant shall use Program Materials solely in connection with the Program. Participant shall use Program Materials as is and shall not modify Program Materials in any way without the express written approval of EVF. Participant shall not delete, obscure, or alter any disclosures or any copyright notice, trademarks, or other proprietary rights notices affixed to or contained in the Program Materials. Upon expiration or termination of the Contract, Participant shall destroy or immediately return to EVF all Program Materials in Participant’s possession.
4. Lenses and Frames: EVF will endeavor to provide Participant with fully fabricated lenses, subject to such limitations on quantity as EVF may determine from time to time in its sole discretion, as prescribed by the Participant for Eligible Patients served through Participant’s charitable activities. Lenses will be fabricated to meet the prescription needs of each Eligible Patient, including single vision and bifocals and the use of polycarbonate materials. Lenses shall be fabricated by EVF’s suppliers and mounted in frames provided on a frame-to-come basis by Participant (“Participant Frames”), unless Participant (i) specifies lenses only (without mounting) or (ii) orders a complete pair of glasses through the Portal, including frames supplied by EVF (“EVF Frames”), if available, in which case EVF’s suppliers will fabricate and mount the lenses in such EVF Frames. If EVF Frames are available, EVF may, in its sole discretion, charge Participant a service fee for complete orders (lenses with EVF Frames). In addition, a supply of EVF Frames may be available for a service fee in order to provide sample selection for display or trial by Eligible Patients. Participant is responsible for shipping Participant Frames to EVF’s designated supplier at Participant’s own expense. Shipments of lenses and frames from EVF or its supplier to Participant will be at no cost to Participant. For clarity, EVF does not guarantee that EVF Frames will be available. If available, EVF does not guarantee that colors of EVF Frames as depicted online will be accurately displayed. EVF does not warrant that the EVF Frame product descriptions are accurate, complete, reliable, current or error-free. EVF will not be liable for typographical errors and reserves the right to refuse or cancel any order or service in the event of a typographical error. EVF, in its sole discretion, shall select suppliers of Program products and services and Participant may not designate suppliers of its choice. EVF has the right to reduce or limit the number of lenses and/or frames made available under this Contract at any time for any reason.
5. Warranty Disclaimer: Participant Frames may be lost or damaged during the fabrication of eyeglasses. Participant’s use of Participant Frames is at Participant’s own risk. EVF, its suppliers and service providers, including any laboratory used by EVF, shall not be liable for damage to the frame due to the fabrication and shipping process or for lost frames.  THE PORTAL, ALL LENSES AND FRAMES, AND ALL RELATED SERVICES ARE PROVIDED ON AN "AS IS" BASIS, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND. EVF HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND WITH RESPECT TO THE PORTAL, THE LENSES AND FRAMES, AND RELATED SERVICES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES ARISING THROUGH COURSE OF DEALING OR USAGE OF TRADE.
6. Additional EVF Responsibilities: Participant agrees that EVF may, but is not obligated to, list Participant as a Program participant on the EVF website in the same manner it lists other comparable Program participants. EVF will submit to Participant any requests for additional trademarks, copy or content needed for individual events or media for the Participant’s approval prior to publication.
7. Participant Responsibilities: In the event that Participant fails to satisfy one or more of the below-referenced responsibilities, or any other Participant obligation set forth in the Contract, EVF may, in its sole discretion, offer to modify the terms of this Contract in lieu of other recourse.
   • Participant agrees to promote EVF as a charitable sponsor and to co-brand any marketing or promotional materials prepared by Participant related to Participant’s charitable services in connection with the Program, provided that Participant agrees to submit to EVF any such co-branded materials, including copy or content for individual events or media, for EVF’s written approval prior to publication or other distribution. Participant will not use the EVF name, logo or other intellectual property without the prior written approval of EVF.
   • Participant agrees to use the Program and any lenses, frames, and related services ordered through the Portal or ordered in connection with the Program solely for charitable vision services to Eligible Patients and to validate patient eligibility in accordance with criteria established by EVF from time to time.
   • Participant agrees that Participant will not charge Eligible Patients for the lens product delivered; however, Participant may charge Eligible Patients up to, but not to exceed, the actual cost of the frame paid by Participant.
   • Participant agrees to retain an electronic log containing, at a minimum, the following information: for each Eligible Patient, the date of service, number/name of patient examined, and how eligibility was validated; the number of exams provided; the number of Eligible Patients who received glasses; the number of glasses dispensed; and the number of Eligible Patients receiving glasses for the first time. The electronic log must be kept current and made available to EVF as EVF may request from time to time during the Term (as defined below) and for one year thereafter for audit purposes and other treatment and health care operation purposes further described in any applicable Business Associate Agreement.
8. Marks: Participant acknowledges EVF’s right, title, and interest in its trade names, trademark, trade dress, logos, and other indicia of origin owned or licensed by EVF (the “EVF Marks”). Participant is authorized to use the EVF Marks solely as the EVF Marks are incorporated into the Program Materials or as otherwise approved by EVF in writing in connection with the Program and shall not use the EVF Marks for any other purpose. Participant acknowledges and agrees that EVF or its licensor, as applicable, retains all ownership rights in the EVF Marks and that the benefit of use of the EVF Marks hereunder, as well as all trademark and other intellectual property rights stemming therefrom, shall inure and belong solely to EVF or its licensor, as applicable. Participant agrees to cease use of the EVF Marks immediately upon EVF’s request or termination of this Contract. Participant will not attempt to obtain a copyright or trademark in any artwork that contains or is derived from the EVF Marks without EVF’s prior written consent. Participant grants to EVF a limited, non-exclusive license to use the Participant name and logo, together with the brand names, logos, and images otherwise provided or authorized by Participant, (the “Participant Marks”) for the sole purpose of promoting the Program and acknowledging Participant’s participation in the Program; provided, however, that any other use by EVF of intellectual property rights owned by Participant requires Participant’s prior written authorization. Upon request, Participant shall provide EVF with high resolution images of Participant’s logo.
9. No Endorsement: Participant shall in no way suggest endorsement by EVF of Participant or Participant’s products or services.
10. Permission to Link: During the Term, (i) EVF grants Participant permission to provide a link from Participant’s Web site to EVF’s Web site, which permission EVF may withdraw at any time and for any reason; and (ii) Participant grants EVF permission to provide a link from EVF’s Web site to Participant’s Web site, which permission Participant may withdraw at any time and for any reason. Neither party shall have an obligation to provide a link from its Web site to the Web site of the other party.
11. Representations and Warranties of EVF: EVF represents and warrants to Participant that it has the right, power, and authority to enter into this Contract.
12. Representations and Warranties of Participant: Participant represents and warrants to EVF that: (i) it has the right, power, and authority to enter into this Contract; (ii) it will comply with all applicable federal, state, and local laws, statutes, ordinances, and regulations (collectively, “Laws”) in connection with the Program and this Contract, including Laws related to professional licensure and the provision of vision care services; and (iii) any valid lens prescription ordered before expiration date noted on the prescription submitted by Participant have been prescribed by duly licensed professionals.
13. Indemnity: Participant agrees to indemnify and hold EVF, its suppliers, and each of their directors, officers, employees, agents, representatives, and volunteers, harmless from and against any and all costs, losses, and expenses, including reasonable attorneys’ fees, that EVF may incur by reason of any claims, actions, demands, or law suits brought by a third party arising out of, or in connection with (i) Participant’s negligence, recklessness, or intentional misconduct; (ii) Participant’s performance or failure to perform pursuant to this Contract, including breach of any provision of this Contract; or (iii) Participant’s location(s), business, products, or services, including any claims in the nature of product liability, personal injury, or professional malpractice.
14. Term and Termination: This Contract shall commence on the Effective Date and will continue until terminated in accordance herein (the “Term”). Unless otherwise mutually agreed by the parties, the Contract shall automatically terminate upon the termination of any applicable Business Associate Agreement. Either party may terminate this Contract: (i) upon any material breach of the Contract by the other party, if such breach is not remedied to the reasonable satisfaction of the non-breaching party within fifteen (15) days after the non-breaching party provides written notice of the breach to the other party; (ii) immediately upon written notice to the other party whenever the notifying party in its reasonable discretion determines that the continuation of the Contract will damage its reputation or good will; or (iii) upon fifteen (15) days written notice for convenience. In addition, EVF may terminate the Contract (i) immediately upon written notice to Participant in the event EVF discontinues the Program, or (ii) if EVF revises the Contract or any portion thereof (including provisions of the Terms and Conditions and/or, if applicable, the Business Associate Agreement) and Participant does not agree to the revised Contract within the time allowed by EVF. Upon termination of this Contract, Participant shall immediately (A) cease to use the Program Materials and the EVF Marks, (B) discontinue any new orders (EVF will honor any orders for lenses or the fabrication of lenses received prior to the effective date of termination), (C) discontinue references in any manner to its relationship with EVF, and (D) retain the electronic audit log referenced in Section 7 above for one year following termination of the Contract. For purposes of this Section 14, Participant’s breach of any of Participant’s obligations set forth in Section 7 above shall be deemed a material breach of this Contract. The provisions of this Section shall not preclude the parties from seeking any other remedies available to them under this Contract and applicable law. The Sections regarding Warranty Disclaimer, Indemnity, Governing Law and Venue, Limitation of Liability, Notices, and Miscellaneous shall survive termination of this Contract. In addition, any provision which would, by its nature, survive the termination of this Contract, shall do so.
15. Disputes; Governing Law and Venue: Any disputes between the parties related to the Contract, the Program, or the Portal shall be governed by the “Disputes with EVF” section of the Terms of Use, including, to the extent applicable, the Agreement to Arbitrate set forth in the “Disputes with EVF” section of the Terms of Use. If and to the extent the Terms of Use are determined not to apply to a dispute between the parties, (i) this Contract shall be governed by and construed in accordance with the laws of the state of Texas, without regard to principles of conflict or choice of law; and (ii) any dispute arising out of or in connection with this Contract shall be filed and heard in the state or federal courts located in Dallas, Texas, and the parties consent to the exclusive jurisdiction of such courts.
16. Relationship of Parties: The parties to this Contract are not joint venturers, partners, agents, or representatives of each other, are not authorized to act on each other’s behalf, and have no legal relationship other than as independent contracting parties to this Contract.
17. Assignment: No party may assign this Contract, or any rights or obligations hereunder, without the prior written consent of the other party. Notwithstanding the foregoing, in the event that any license agreement between EVF and its licensor is terminated, EVF may, without Participant’s consent, assign its rights and obligations with respect to any sublicense granted hereunder to such licensor. Any attempt to assign this Contract in contravention of this Section shall be void and of no force and effect. This Contract is binding upon and will inure to the benefit of the respective parties hereto and their successors and permitted assigns.
18. Limitation of Liability: EXCEPT WITH RESPECT TO INDEMNIFICATION OBLIGATIONS SET FORTH HEREIN, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY (I) DIRECT DAMAGES, IN THE AGGREGATE, IN EXCESS OF $100.00, OR (II) INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE DAMAGE WITH RESPECT TO ANY CLAIM ARISING OUT OF THIS CONTRACT (INCLUDING ITS PERFORMANCE OR BREACH OF THESE TERMS AND CONDITIONS) FOR ANY REASON.
19. Notices: All notices required or permitted to be given hereunder shall be in writing and shall be sent by (i) personal or courier delivery, (ii) electronic mail, or (iii) USPS certified mail, postage prepaid, return receipt requested. All notices to Participant shall be forwarded to Participant and/or the Primary Contact designated by Participant at the principal mailing address and/or email address provided for Participant when completing the Registration Form, or to such other person or address as Participant may designate in writing to EVF for this purpose. All notices to EVF shall be forwarded to Essilor Vision Foundation, 13515 N. Stemmons Fwy., Dallas, TX 75234, Attn: Partnerships (if notice is sent by mail or personal or courier delivery) and/or to support@evfusa.org (if notice is sent by electronic mail), or to such other person or address as EVF may designate in writing to Participant for this purpose. In order for notice to EVF to be effective, a copy of such notice must be sent to Essilor Vision Foundation, Attn: General Counsel, at the EVF address designated above (if notice is sent by mail or personal or courier delivery). Notices delivered hereunder shall be effective when received or refused. Notwithstanding the foregoing, (i) written approvals and authorizations required hereunder may be provided facsimile, email, or other written means; and (ii) EVF may notify Participant, including notice of any change to the Program or the terms of the Contract, by posting a notice on the Portal.
20. Entire Agreement: Except as expressly and specifically provided in this Contract, this Contract supersedes any prior understandings or oral agreements between the parties regarding the subject matter hereof and constitutes the entire understanding and agreement of such parties with respect to the subject matter hereof.
21. Force Majeure: The obligations of any party under this Contract will be suspended for the duration of any force majeure applicable to that party. The term "force majeure" means any cause not reasonably within the control of the party claiming suspension, including an act of God, industrial disturbance, supplier disruptions, war, riot, weather-related disaster, earthquake and governmental action. The party claiming suspension under this Section will take reasonable steps to resume performance as soon as possible without incurring unreasonably excessive costs.
22. Miscellaneous: The failure of a party at any time to require performance of any provision of or resort to any remedy provided under this Contract shall in no way affect the right of that party to require performance or resort to a remedy at any time thereafter, nor shall the waiver by a party of a breach be deemed to be a waiver of any subsequent breach. A waiver shall not be effective unless it is in writing and signed by the party against whom the waiver is being enforced. If any term or provision of this Contract is determined to be invalid, illegal, or incapable of being enforced by any law, regulation, or public policy, then such provision will be interpreted, construed, or reformed to the extent reasonably required to render the same valid, enforceable and consistent with the original intent underlying such provision, and all other terms and provisions of this Contract shall nevertheless remain in full force and effect. Notwithstanding the foregoing, if any such modification causes a material change in the obligations or rights of any party, upon written notice from one party to the other of the adverse effect thereof upon such notifying party, and then if the parties are not able to mutually agree as to an amendment hereto, any party may terminate this Contract upon thirty (30) days written notice to the other parties.This Contract shall not be altered, amended, or modified in any way except by (i) a written instrument dated subsequent to the date of this Contract and signed on behalf of the parties by their respective duly authorized representatives; or (ii) a subsequent “clickwrap” agreement made available by EVF on the Portal to which Participant has indicated Participant’s assent by clicking an “I Agree” or “Submit” or similar button. Section captions and headings are for are for reference purposes only and shall not control or affect the construction or interpretation of this Contract in any respect. In all cases, the use of "includes/ing" shall mean "includes/ing without limitation".

This HIPAA Business Associate Agreement ("Agreement") supplements and is made a part of the Essilor Vision Foundation (“EVF”) Changing Life through Lenses® Agreement ("Contract") by and between the legal entity or individual identified as the participant on the Essilor Vision Foundation Changing Life through Lenses® registration form (referred to herein as “Covered Entity") and Essilor Vision Foundation (referred to herein as "Business Associate"), and is effective as of the Effective Date of the Contract between the parties, as defined in the Essilor Vision Foundation Changing Life through Lenses® Terms and Conditions.

RECITALS

• WHEREAS, Business Associate provides certain services to health care providers; and
• WHEREAS, Business Associate has been retained by Covered Entity to perform functions or activities that will require the Business Associate to have access to or create, receive, maintain or transmit Protected Health Information in relation to the Covered Entity; and
• WHEREAS, Pursuant to the Health Insurance Portability and Accountability Act of 1996 ("HIPAA"), Covered Entity and Business Associate desire to execute this Agreement to comply with the terms of the Privacy Rule, the Security Rule and the HITECH Act under the American Recovery and Reinvestment Act of 2009 (as defined below); and
• WHEREAS, this Agreement has been drafted to incorporate the provisions required by the final regulations issued by the Department of Health and Human Services on January 25, 2013 implementing the HITECH Act; and
• WHEREAS, Business Associate acts in the capacity of an independent contractor in relation to the services provided to Covered Entity under the Contract.
• NOW, THEREFORE, in consideration of the mutual covenants, terms and conditions herein contained, the parties hereto agree as follows:

1) DEFINITIONS

Terms used but not otherwise defined in the Agreement shall have the same meaning as those terms in the Privacy Rule and Security Rule.

1. "Breach" shall have the meaning given to it by 45 CFR Section 164.402.
2. "Breach Notification Rule" shall mean the Standards for Breach Notification for Unsecured Protected Health Information under HIPAA that is codified at 45 CFR Parts 160 and 164, subparts A and D.
3. "Deidentified Data" shall have the same meaning as the term "deidentified data" in 45 CFR Section 164.514.
4. "Designated Record Set" shall mean a group of records maintained by or for a Covered Entity that is: (i) the medical records and billing records about Individuals maintained by or for a covered health care provider; (ii) the enrollment, payment, claims adjudication, and case or medical management record systems maintained by or for a health plan; or (iii) used, in whole or in part, by or for the Covered Entity to make decisions about Individuals. For purposes of this definition, the term "record" means any item, collection, or grouping of information that includes Protected Health Information and is maintained, collected, used, or disseminated by or for a Covered Entity.
5. "Health Care Operations" shall have the same meaning as the term "Health Care Operations" in 45 CFR Section 164.501.
6. "HITECH Act" shall mean the provisions of Title XIII, Subtitle D of the American Recovery and Reinvestment Act of 2009. Any reference to a section of the HITECH Act shall also include any HITECH Regulations related thereto.
7. "HITECH Regulations" shall mean any guidance issued relating to the HITECH Act by the Department of Health and Human Services, including the Breach Notification Rule.
8. "Individual" shall have the same meaning as the term "individual" in 45 CFR Section 160.103 and shall include a person who qualifies as a personal representative in accordance with 45 CFR Section 164.502(g).
9. "Privacy Rule" shall mean the Standards for Privacy of Individually Identifiable Health Information that is codified at 45 CFR Parts 160 and 164, subparts A and E.
10. "Protected Health Information" or "PHI" shall mean any information, whether oral or recorded in any form or medium: (i) that relates to the past, present or future physical or mental condition of an individual; the provision of health care to an individual; or the past, present or future payment for the provision of health care to an individual; and (ii) that identifies the individual or with respect to which there is a reasonable basis to believe the information can be used to identify the individual, and shall have the meaning given to such term under 45 CFR Section 160.103. Protected Health Information shall be limited to the information created or received by Business Associate from or on behalf of Covered Entity.
11. "Required By Law" shall have the same meaning as the term "required by law" in 45 CFR Section 164.103.
12. "Secretary" shall mean the Secretary of the Department of Health and Human Services or his or her designee.
13. "Security Rule" shall mean the Security Standards for the Protection of Electronic Protected Health Information under HIPAA that is codified at 45 CFR Parts 160 and 164, subparts A and C.
14. "Unsecured PHI" shall mean Protected Health Information that is not secured through the use of a technology or methodology that renders such Protected Health Information unusable, unreadable or indecipherable to unauthorized individuals, as specified in guidance issued pursuant to Section 13402(h) of the HITECH Act, including the Breach Notification Rule.

2) OBLIGATIONS AND ACTIVITIES OF BUSINESS ASSOCIATE

1. Permitted Uses and Disclosures. Business Associate agrees to not use or disclose Protected Health Information other than as permitted or required by this Agreement or as Required By Law. Business Associate shall not use or disclose Protected Health Information in any manner that violates the Privacy Rule or the HITECH Act. To the extent required by the Privacy Rule, Business Associate shall only request, use and/or disclose the minimum amount of Protected Health Information necessary to accomplish the purpose of the request, use and/or disclosure. The determination of what constitutes the minimum necessary amount of Protected Health Information shall be determined in accordance with the provisions of the Privacy Rule.
2. Safeguards. Business Associate agrees to use administrative, physical and technical safeguards applicable to the services provided under the Contract that reasonably and appropriately protect the confidentiality, integrity and availability of Protected Health Information, in electronic or any other form, that it creates, receives, maintains or transmits under this Agreement, in accordance with the Privacy Rule and the Security Rule to prevent the use or disclosure of Protected Health Information other than as provided for by this Agreement. Business Associate shall fully comply with the Security Rule with regard to electronic Protected Health Information.
3. Reporting of Improper Use or Disclosure. Business Associate agrees to report to the Covered Entity any use or disclosure of the Protected Health Information not provided for by this Agreement of which it becomes aware. Business Associate shall also report any security incident of which it becomes aware to Covered Entity. 
4. Mitigation. Business Associate agrees to mitigate, to the extent practicable, any harmful effect that is known to Business Associate of a use or disclosure of Protected Health Information by Business Associate in violation of the requirements of this Agreement. 
5. Agents and Subcontractors. Business Associate agrees to require that any agents or subcontractors that create, receive, maintain or transmit Protected Health Information on behalf of Business Associate in relation to Covered Entity agree in writing (in the form of a business associate contract) to substantially similar restrictions, conditions and requirements that apply through this Agreement to Business Associate with respect to such information, including the implementation of reasonable and appropriate measures for safeguarding Protected Health Information. 
6. Access to Individuals. To the extent applicable, Business Associate agrees to provide access 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 Section 164.524. Further, if an Individual requests a copy of Protected Health Information in a specific electronic format, Business Associate shall comply with such request, if readily producible, in accordance with the requirements of 45 CFR Section 164.524.
7. Amendments to Protected Health Information. To the extent applicable, Business Associate agrees to make any reasonable amendment(s) to Protected Health Information in a Designated Record Set that the Covered Entity directs or agrees to pursuant to 45 CFR Section 164.526 at the request of Covered Entity or an Individual.
8. Access to Internal Practices, Books and Records. 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 Secretary for purposes of the Secretary determining Covered Entity's compliance with HIPAA.
9. Disclosure Documentation. 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 Section 164.528. Business Associate agrees to provide to Covered Entity or an Individual information collected in accordance with this subsection 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 Section 164.528.
10. Obligation Upon Breach of Unsecured PHI. Upon Business Associate's discovery of a Breach of Unsecured PHI, Business Associate shall provide notice of the Breach to Covered Entity in accordance with the requirements of 45 CFR 164.410. The content of such written notice of the Breach shall comply with the requirements of 45 CFR Section 164.410(c). Business Associate shall cooperate with and coordinate an appropriate course of action with Covered Entity.
11. Delegated Obligations. To the extent Business Associate is to carry out one or more of Covered Entity’s obligations under Subpart E of 45 CFR Part 164, Business Associate agrees to comply with the requirements of Subpart E that apply to Covered Entity in the performance of such obligations.

3) PERMITTED USES BY BUSINESS ASSOCIATE

1. Service Agreement. Except as otherwise limited in this Agreement, Business Associate may use or disclose Protected Health Information to perform functions, activities, or services for, or on behalf of, Covered Entity as specified in the Contract, provided that such use or disclosure would not violate the Privacy Rule if done by Covered Entity.
2. Other Permitted Usage. 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. Business Associate may disclose Protected Health Information for the proper management and administration of the Business Associate if the disclosure is Required by Law or Business Associate obtains reasonable assurances from the person to whom the information is disclosed that it will be held confidentially and used or further disclosed only as Required by Law or for the purposes for which it was disclosed to the person and the person notifies Business Associate of any instances of which it is aware in which the confidentiality of the information has been breached. In addition, Business Associate may use Protected Health Information to provide Data Aggregation services as permitted by 45 CFR Section 164.504(e)(2)(i)(B) and/or to create Limited Data Sets as permitted by 45 CFR 164.514(e).
   
   The Business Associate’s activities will require access to Protected Health Information to process prescriptions placed by the Covered Entity pursuant to the Contract. Also, Business Associate may also facilitate certain treatment activities (as defined at 45 CFR 164.501) and perform certain health care operation functions (as defined at 45 CFR 164.501), including conducting certain audit functions, on behalf of the Covered Entity.
   
   Further, Covered Entity expressly agrees to provide Business Associate with Protected Health Information, as requested by Business Associate from time to time, so that Business Associate may create a limited data set with such information that complies with the requirements of 45 CFR 164.514(e). After creating the limited data set, Business Associate will conduct research on the limited data set, as allowed under 45 CFR 164.514(e)(3). The Business Associate will not use or further disclose the limited data set information in a manner that would violate the requirements of the Privacy Rule. In relation to the limited data set information maintained by Business Associate, Business Associate will use appropriate safeguards to prevent use or disclosure of the information other than as provided for by this Agreement; report to the Covered Entity any use or disclosure of the information not provided for by this Agreement of which it becomes aware; ensure that any agents to whom it provides the limited data set agree to the same restrictions and conditions that apply to the limited data set recipient with respect to such information; and not identify the information or contact the individuals, in accordance with the requirements of 45 CFR 164.514(e)(4)(ii)(C).

4) OBLIGATIONS OF COVERED ENTITY

1. Change in Privacy Practices. Covered Entity shall notify Business Associate of any limitation(s) in its notice of privacy practices of Covered Entity in accordance with 45 CFR Section 164.520, to the extent that such limitation may affect Business Associate's use or disclosure of Protected Health Information. Additionally, Covered Entity shall notify Business Associate of any limitation(s) or restriction(s) in its security practices to the extent that such limitation may affect Business Associate's use or disclosure of Protected Health Information.
2. No Restrictions on the Use or Disclosure of Protected Health Information. Covered Entity shall not agree to an Individual’s request to restrict uses or discloses of Protected Health Information, to the extent that such changes may affect Business Associate's ability to perform the functions described in the Contract, including this Agreement. Because of the charitable nature of the services performed in relation to the Covered Entity’s patients whose PHI is subject to this Agreement, 45 CFR 164.522(a)(1)(vi) will not apply to the PHI of such patients since such patients are not paying in full for services performed. Therefore, the Covered Entity is allowed under 45 CFR 164.522(a)(1)(ii) to not agree, and shall not agree, to any restriction requested by an Individual whose PHI will be shared with Business Associate as part of the services provided under the Contract. 

5) PERMISSIBLE REQUESTS BY COVERED ENTITY

1. Covered Entity shall not request Business Associate to use or disclose Protected Health Information in any manner that would not be permissible under the Privacy Rule if done by Covered Entity.

6) TERM AND TERMINATION

1. Term. This Agreement will begin on the Effective Date, and will continue until terminated in accordance herein.
2. Termination. In addition to the termination rights set forth in the Terms and Conditions, a party may terminate the Agreement as follows:
   Termination for Cause. Upon Covered Entity's knowledge of a material breach of this Agreement by Business Associate, Covered Entity shall provide not less than 20 days written notice of its intent to terminate the Agreement if Business Associate does not cure such material breach no later than the end of the written notice period. If Business Associate does not cure the breach within such time, then Covered Entity may, in its sole discretion, immediately terminate this Agreement.
   Termination without Cause and Termination of the Contract. Either party may terminate this Agreement effective upon 15 days advance written notice to the other party given with or without any reason if Business Associate no longer performs services for Covered Entity requiring the use or disclosure of Protected Health Information. This Agreement will immediately terminate if the Contract terminates. The effective date of such termination will be the same as the effective date that the Contract terminates.
   Effect of Termination. Unless otherwise mutually agreed by the parties, the termination of this Agreement for any reason shall automatically terminate the Contract. The parties mutually agree in advance that returning or destroying Protected Health Information upon termination of this Agreement is infeasible. Therefore, 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.

7) MISCELLANEOUS

1. Regulatory References. Any reference in this Agreement to a section in the Privacy Rule, Security Rule, Breach Notification Rule or HITECH Act means the section as in effect or as amended.
2. Amendment. The Parties agree to take such action as is necessary to amend this Agreement from time to time as is necessary for Covered Entity to comply with the requirements of the Privacy Rule, Security Rule, the Breach Notification Rule or any other requirements of the HITECH Act.
3. Survival. The respective rights and obligations of Business Associate under Section 6.2.3 shall survive the termination of this Agreement.
4. Interpretation; Conflict. Any ambiguity in this Agreement shall be resolved to permit both parties to comply with the Privacy Rule, Security Rule, the Breach Notification Rule or any other requirements of the HITECH Act. 
5. No Third-Party Beneficiaries. Except as set forth in this Agreement or as expressly provided for under HIPAA, this Agreement is entered into by and among the parties hereto solely for their benefit. The parties have not created or established any third-party beneficiary status or rights in any person or entity not a party hereto including any individual, provider, subcontractor, or other third-party, and no such third-party will have any right to enforce any right or enjoy any benefit created or established under this Agreement.
6. Force Majeure. The obligations of any party under this Agreement will be suspended for the duration of any force majeure applicable to that party. The term "force majeure" means any cause not reasonably within the control of the party claiming suspension, including an act of God, industrial disturbance, supplier disruptions, war, riot, weather-related disaster, earthquake and governmental action. The party claiming suspension under this Section will take reasonable steps to resume performance as soon as possible without incurring unreasonably excessive costs.
7. Entire Agreement. This Agreement including any riders, attachments or amendments hereto, constitutes the entire agreement among the parties with respect to the Privacy Rule, the Security Rule, the Breach Notification Rule and any other requirements of the HITECH Act. This Agreement supersedes any prior agreement or understandings pertaining to HIPAA obligations between the parties, whether oral or written.
8. Disputes; Choice of Law. Any disputes between the parties related to this Agreement shall be governed by the “Disputes with EVF” section of the Terms of Use, including, to the extent applicable, the Agreement to Arbitrate set forth in the “Disputes with EVF” section of the Terms of Use. If and to the extent the Terms of Use are determined not to apply to a dispute between the parties, (i) this Agreement shall be governed by and construed in accordance with the laws of the state of Texas, without regard to principles of conflict or choice of law; and (ii) any dispute arising out of or in connection with this Agreement shall be filed and heard in the state or federal courts located in Dallas, Texas, and the parties consent to the exclusive jurisdiction of such courts.
9. Assignment and Delegation. No party may assign this Agreement, or any rights or obligations hereunder, without the prior written consent of the other party. Any attempt to assign this Agreement in contravention of this Section shall be void and of no force and effect. This Agreement is binding upon and will inure to the benefit of the respective parties hereto and their successors and permitted assigns.
10. Notices. Any notice required pursuant to this Agreement shall comply with the requirements for notices as set forth in the Essilor Vision Foundation Changing Life through Lenses® Terms and Conditions that form part of the Contract.
11. Miscellaneous. The failure of a party at any time to require performance of any provision of or resort to any remedy provided under this Agreement shall in no way affect the right of that party to require performance or resort to a remedy at any time thereafter, nor shall the waiver by a party of a breach be deemed to be a waiver of any subsequent breach. A waiver shall not be effective unless it is in writing and signed by the party against whom the waiver is being enforced. If any term or provision of this Agreement is determined to be invalid, illegal, or incapable of being enforced by any law, regulation, or public policy, then such provision will be interpreted, construed or reformed to the extent reasonably required to render the same valid, enforceable and consistent with the original intent underlying such provision, and all other terms and provisions of this Agreement shall nevertheless remain in full force and effect. Notwithstanding the foregoing, if any such modification causes a material change in the obligations or rights of any party, upon written notice from one party to the other of the adverse effect thereof upon such notifying party, and then if the parties are not able to mutually agree as to an amendment hereto, any party may terminate this Agreement upon thirty (30) days written notice to the other parties.This Agreement shall not be altered, amended or modified in any way except by (i) a written instrument dated subsequent to the date of this Agreement and signed on behalf of the parties by their respective duly authorized representatives; or (ii) a subsequent “clickwrap” agreement made available by EVF on the Essilor Vision Foundation Changing Life through Lenses® online platform to which Covered Entity has indicated Covered Entity’s assent by clicking an “I Agree” or “Submit” or similar button. Section captions and headings are for are for reference purposes only and shall not control or affect the construction or interpretation of this Agreement in any respect. In all cases, the use of "includes/ing" shall mean "includes/ing without limitation".