PRODUCER AGREEMENT Agreement is made between the United Concordia Companies, Inc. and/or its affiliated companies (hereinafter referred to as "United Concordia") and _________________________________________________ (hereinafter referred to as "Producer"). In consideration of the mutual promises herein contained and other good and valuable consideration, and intending to be legally bound, the parties agree as follows: 1. 2. PA0713 DEFINITIONS (a) “Agreement” means this Producer Agreement and all Appendixes attached hereto. (b) “Group” means the entity entering into a contract with United Concordia for a group Insurance Product. (c) “Insurance Product(s)” means any one or a combination of the individual or group dental insurance policies or administrative services contracts (“ASO” contracts) offered through United Concordia. (d) “Producer” means the individual or the entity and its officers, employees and agents entering into this Agreement with United Concordia. APPOINTMENT OF PRODUCER - GENERAL POWERS AND DUTIES (a) United Concordia hereby authorizes Producer and Producer hereby accepts such authorization to solicit applications for issuance of United Concordia's Insurance Products in the states where the Producer has been appointed by United Concordia, subject to completion of the necessary documentation required by United Concordia, including completion of the Producer Information Form. (b) Producer agrees that it shall be covered by an errors and omissions policy of insurance of at least one million dollars ($1,000,000). Producer further agrees to submit to United Concordia a copy of the declaration sheet from its errors and omissions policy, as a condition to its appointment as a producer. (c) Producer agrees to notify United Concordia immediately of any termination, suspension or expiration of its license to engage in the health insurance business in any state where it has been appointed by United Concordia. (d) Producer shall comply with and enforce United Concordia’s rules, guidelines, policies, procedures and instructions (hereinafter collectively referred to as United Concordia “Requirements”) pertaining to solicitation, underwriting, participation, marketing, rate quotation, proposal submission, eligibility, sold client installation, or servicing of sold clients. United Concordia Requirements, and any revisions thereto, shall be communicated to Producer in a reasonable time and manner, as determined by United Concordia. (e) Neither Producer nor any of its employees or agents shall make representations with respect to United Concordia's Insurance Products except as may be contained in the written material prepared and furnished to the Producer by United Concordia, and shall make no oral or written alteration, modification or waiver of any of the terms or conditions applicable to such products without the express prior written consent of United Concordia. (f) Producer agrees that all printed matter, applications, sales literature and other written material which United Concordia may furnish shall remain the property of United Concordia, subject at all times to its control, and shall be returned to United Concordia upon demand. (g) Producer shall not use any advertisement or any other communication in which United Concordia's name and/or corporate symbols are contained, without the prior written consent of United Concordia. (h) During the term of this Agreement and any extension thereof, and for a period of two (2) years following termination of this Agreement, the Producer shall not disclose or use any confidential and/or proprietary information about the business of United Concordia, except in furtherance of producer’s obligations under this Agreement and except as authorized by United Concordia in writing. Confidential and proprietary information about the business of United Concordia includes, but is not limited to, policies, procedures, underwriting guidelines, and/or client specific proposals, which Producer obtained or to which it was granted access by reason of this Agreement. Customer records that are made and maintained separately by United Concordia and Producer are neither proprietary nor 1 07/13 confidential information as to either party to this Agreement, and are jointly owned by the parties. Such jointly owned information includes, but is not limited to, the details of existing insurance policies. 3. (i) Producer will exercise all authority conferred herein personally or through its employees and agents and no others. Producer may not appoint sub-producers under this Agreement without the written consent of United Concordia. If such consent is granted, this Agreement shall terminate and Producer shall enter into a General Producer Agreement with United Concordia. (j) Producer agrees that all individuals or Groups shall be billed directly by United Concordia, and not through any intermediary, including the Producer, unless expressly authorized otherwise in writing by United Concordia, except that the Producer is authorized to collect the initial binder premium, as applicable, on group business or the initial administrative services fee on ASO business only, provided that all such premium is remitted to United Concordia within five (5) days of receipt and no later than ten (10) days prior to the effective date of coverage for new business, unless a different period of time for remittance is authorized by United Concordia. (k) Producer agrees to comply with all applicable state and federal laws. (l) Producer shall forward to United Concordia immediately upon receipt any and all government or other communications, complaints or inquiries, written or oral, regarding or pertaining to the Insurance Products. (m) Producer agrees that it shall keep such records and forms that may reasonably be required by United Concordia or by applicable law. Such records, together with all manuals and all supplies furnished by United Concordia, shall remain the property of United Concordia and shall be subject to examination by or surrendered to United Concordia at any time. Producer agrees that it shall maintain complete records of all transactions pertaining to groups, or to individuals, as applicable along with correspondence to and from groups or from individuals, as applicable for the current year plus the six preceding calendar years. LIMITATIONS ON PRODUCER’S AUTHORITY Notwithstanding the Producer’s appointment by United Concordia, the Producer, is not permitted to perform any of the following acts: PA0713 (a) To waive, modify or change any terms, conditions, rates, proposals or limitations of any Insurance Product. (b) To bind or commit United Concordia in any manner, other than as provided in this Agreement. (c) To receive any money for United Concordia except as provided in this Agreement. (d) To extend the time for any premium payment. (e) To reinstate any coverage terminated. (f) To adjust, settle, or admit liability on any claim. (g) To solicit applications or enrollment information for Insurance Products within a state where the Producer is not appointed by United Concordia. (h) To effect any verbal contracts for Insurance Products. (i) To effect any contracts for Insurance Products except through authorized forms provided by United Concordia. (j) To use in any form any registered or unregistered trademark, trade name, or service mark owned by United Concordia, unless authorized in writing. (k) To extend credit or incur any indebtedness, liability, or obligation on behalf of United Concordia. (l) To sign an application for an Insurance Product on behalf of an applicant. 2 07/13 4. 5. 6. PA0713 (m) To pay, allow, or offer to pay or allow as an inducement to any person or group, any rebate of premium or other form of consideration. (n) To enter into any legal proceeding pertaining to United Concordia as its representative, including the acceptance of legal process on behalf of United Concordia. SPECIFIC REQUIREMENTS FOR SELLING CALIFORNIA DENTAL HEALTH MAINTENANCE ORGANIZATION INSURANCE PRODUCTS (a) For the purposes of this agreement, the term Producer is synonymous with the term Solicitor Firm or Solicitor, as defined in California’s Knox Keene Act. (b) No Producer shall maintain an account with a financial institution for funds of United Concordia, except an account which is in the name of and under control of United Concordia. (c) Notwithstanding the duties described in Section 2(j), the Producer shall deposit all checks payable to United Concordia to an account under the name and control of United Concordia or forward checks to United Concordia by the close of the business day following receipt. (d) In addition to the requirements specified in section 2(c), Producer shall notify United Concordia immediately of the institution of any disciplinary proceedings against it or against any of its principal persons or employees relating to its Producer license. (e) In addition to the requirements specified in sections 2(k) and 16(b), Producer shall comply with all applicable provisions of California’s Knox-Keene Act. (f) In addition to the requirements specified in section 2(m), Producer shall keep and maintain its books of account and other records on a current basis. Such books and records regardless of location must be made accessible to the California Department of Managed Health Care upon request. Books and records for these products shall not be removed from California without prior consent from the Director of the California Department of Managed Health Care. ELIGIBILITY REQUIREMENTS (a) In order to be eligible for Insurance Products offered on a group basis, a Group must comply with United Concordia’s participation and underwriting standards and guidelines. These standards and guidelines are subject to change without notice. (b) All necessary census materials and other quotation information required by United Concordia must be received by United Concordia within any deadlines it sets before a group will be considered for coverage. (c) For insured business the group or individual application must be accepted by United Concordia. No coverage will be effective before the date determined by United Concordia, and only if the applicable premium has been paid. (d) The Group must execute the required group contract(s). COMPENSATION (a) United Concordia or its designee shall pay commissions to the Producer at a rate on which the parties agree, which rate shall be disclosed in the periodic commission statements provided to Producer by United Concordia. (b) No commission shall be paid by or on behalf of United Concordia unless the Producer is designated in writing by the applicable insured Group, ASO Group or insured individual as the Producer of Record. United Concordia's obligation to pay commissions under this Agreement for premium or ASO fees produced in connection with a particular, insured Group, ASO Group or insured individual shall terminate in the event the Producer is replaced by another producer as Producer of Record for that individual or Group. 3 07/13 7. 8. PA0713 (c) Commissions payable under this Agreement shall be paid so long as this Agreement is in effect and the insured Group, ASO Group or insured individual has dental coverage with United Concordia written through the Producer, and the Producer continues to service the insured Group, ASO Group or insured individual, except as provided in Section 6(k) of this Agreement. (d) Subject to the termination provisions set forth in this Agreement, commissions shall not be payable unless and until the premium charges to which they apply are received by United Concordia, and Producer has complied with the terms of this Agreement. (e) Any indebtedness of the Producer to United Concordia shall be a first lien against any commission due the Producer under this Agreement, and such commission shall be applied first to liquidate such indebtedness before being payable to the Producer. (f) If the Insurance Product is terminated and premium is returned, the Producer shall repay to United Concordia, on demand, the amount of commissions it has received on the returned premium charges. (g) No commissions shall be payable under this Agreement on any premium charges waived under the terms of any contract of insurance for any reason and no commissions shall be payable on any interest on due and unpaid premium charges. (h) No commissions shall be payable under this Agreement if United Concordia does not extend coverage under an Insurance Product. (i) If this Agreement is terminated for any reason by the Producer, no commissions will be paid subsequent to the termination date. (j) If this Agreement is terminated by United Concordia for cause, no commissions will be paid subsequent to the date of termination. (k) If this Agreement is terminated by United Concordia for any reason other than for cause, the Producer shall be entitled to receive commissions for the balance of the Group’s or the insured individual’s contract year, provided that coverage remains continuously in force and the Producer remains Producer of Record for that insured individual or Group. RESERVATION OF RIGHTS (a) United Concordia reserves the right to reject any application for enrollment in an Insurance Product. (b) United Concordia reserves the right to discontinue or withdraw from sale any Insurance Product, amendment, or endorsement. (c) United Concordia reserves the right to discontinue writing, amend or cancel any Insurance Product. (d) United Concordia reserves the right to determine all terms, conditions and limitations on any Insurance Product. (e) United Concordia reserves the right to amend, delete or add any United Concordia policy or procedure. (f) United Concordia reserves the right upon reasonable notice, to audit and make copies of all records in the Producer’s possession which relate to Insurance Products or any proposal for Insurance Products that the Producer presented to an insured individual or Group. RELATIONSHIP BETWEEN THE PARTIES (a) The relationship of the parties shall be that of independent contractors. As such, each party is responsible for its own expenses incurred pursuant to this Agreement. (b) Nothing contained in this Agreement shall be construed as creating the relationship of employer and employee between the parties. 4 07/13 9. 10. 11. PA0713 INDEMNIFICATION (a) The Producer agrees to indemnify and hold United Concordia, its respective affiliates and subsidiaries and their respective officers, directors, and employees harmless from any damage and against any liability for loss, cost, expenses, fines, penalties, including punitive or exemplary damages and all costs of defense, including reasonable attorney’s fees: (i) resulting from any act, error or omission, whether intentional or unintentional, by the Producer and its officers, directors, employees and agents related to or which arise out of the business covered by this Agreement, or (ii) resulting from any obligation, act or transaction created or performed by the Producer in violation of, in excess of, or in contravention of the duties, obligations, power and authority of the Producer set forth in this Agreement. (b) United Concordia agrees to indemnify and hold Producer, its respective affiliates and subsidiaries and their respective officers, directors, and employees harmless from any damage and against any liability for loss, cost, expenses, fines, penalties, including punitive or exemplary damages and all costs of defense, including reasonable attorney’s fees: (i) resulting from any act, error or omission, whether intentional or unintentional, by United Concordia and its officers, directors, employees and agents related to or which arise out of the business covered by this Agreement, or (ii) resulting from any obligation, act or transaction created or performed by United Concordia in violation of, in excess of, or in contravention of the duties, obligations, power and authority of United Concordia set forth in this Agreement. (c) The Producer expressly authorizes United Concordia, without precluding United Concordia from exercising any other remedy it may have, to charge against all compensation due or to become due to the Producer under this Agreement any monies paid or liabilities incurred by United Concordia by reason of any occurrence described in this Section. EFFECT AND CONSTRUCTION OF AGREEMENT; GOVERNING LAW (a) This Agreement together with all attached schedules constitutes the entire agreement between the parties with respect to the matters contained herein and shall not be modified or rescinded, except by a writing signed by both parties, except as otherwise provided in this Agreement. (b) This Agreement supersedes all other prior agreements between the parties. (c) This Agreement shall be governed by and construed and enforced in accordance with the laws of the Commonwealth of Pennsylvania. (d) Nothing shall preclude United Concordia from seeking relief against Producer in a Court of Law or in Equity under appropriate circumstances, including but not limited to, a request for injunctive relief. Producer acknowledges that its obligations under this Agreement are unique and that monetary redress may be inadequate to compensate United Concordia for the breach thereof. The parties hereby agree that the venue for any such law or equity proceedings shall be the Court of Common Pleas of Dauphin County, Pennsylvania. The Producer, wherever it may be located, hereby consents to personal jurisdiction and venue before the Court of Common Pleas of Dauphin County, Pennsylvania. (e) This Agreement may be amended to comply with changes in applicable Federal or State law, which amendment shall become effective without requiring the written agreement of the parties, unless Producer rejects such amendment by providing written notice to United Concordia of its rejection within thirty (30) days of receipt. Such amendments shall become effective immediately upon its mailing, unless United Concordia indicates otherwise. RECORDS, REPORTS AND AUDITS (a) United Concordia agrees to remit to Producer a Commission Statement on a monthly basis depicting the premium charges collected and commissions paid thereon for insured business, and the ASO fees collected and commissions paid thereon for ASO business. (b) Producer agrees to remit to United Concordia such reports of its activities at such time and in such form as are reasonably required by United Concordia. 5 07/13 12. 13. (c) United Concordia shall have the right, upon reasonable prior notice and during normal business hours, to inspect and audit all records, files and documents related to the activities covered under this Agreement. Producer agrees to fully cooperate with United Concordia in conducting such inspections and audits. (d) Producer agrees to reimburse United Concordia for the expenses of any audit arising out of fraud or intentional misrepresentation by the Producer. (e) If Producer collects either premium or ASO fees, Producer shall provide United Concordia with copies of its financial statements, as deemed reasonably necessary by United Concordia. (f) Producer shall provide reasonable assistance to United Concordia in responding to any regulatory requirements, audits or other inquiries. (g) Producer shall maintain complete records of all transactions pertaining to clients and correspondence to and from clients for the current year and for a period of at least seven (7) years thereafter. LICENSES AND TAXES (a) Producer shall obtain any and all licenses required by the applicable state or local laws or regulations and will pay all license, income, self-employment, unemployment, and any and all other taxes and levies upon the business of the Producer and will hold harmless United Concordia from all liability for the same. (b) Producer shall hold an appropriate producer license and be appointed by United Concordia prior to the solicitation of any Insurance Products on behalf of United Concordia. No business will be accepted from any producer either prior to the appointment by United Concordia or receipt by United Concordia of appointment paperwork together with the insurance application. TERMINATION AND ASSIGNMENT (a) This Agreement shall be effective on the date specified in Section 20 of this Agreement and shall continue in force and effect for twelve (12) consecutive months, the “Initial Term”, at which time, unless terminated as provided herein, this Agreement shall automatically renew for a further period of twelve (12) consecutive months and thereafter from year to year. (b) United Concordia may terminate this Agreement immediately upon the occurrence of any of the following, which shall constitute cause: (c) PA0713 (1) Termination is required by state or federal law, or by any order of any state or federal agency or court with authority to issue such an order; (2) Termination of the Producer’s license; (3) Producer’s withholding, converting to its own use, or otherwise misappropriating funds of United Concordia or of a United Concordia client; (4) Producer’s commission of any illegal act or fraud in the performance of duties as producer for United Concordia; (5) Producer’s breach of any of the terms of this Agreement or United Concordia Requirements, including but not limited to underwriting rules; (6) Producer’s conviction, entry of a plea of nolo contendere, or the imposition of probation without verdict for any felony or a misdemeanor related to the business of insurance, including but not limited to fraud, theft, embezzlement, or any other offense related to the misuse or taking of funds. This Agreement may be terminated at any time, by either party, by giving at least thirty (30) days prior written notice. Termination shall take effect from the expiration of the notice so given. 6 07/13 14. PA0713 (d) In the event this Agreement is terminated by United Concordia, other than for cause, commissions payable as provided in Section 6 of this Agreement, if any, shall be paid to the Producer only so long as the Producer is recognized by the Group or the insured individual as the Producer of Record. In order to qualify for the continued payment of commissions beyond the effective date of termination, as provided in Section 6 of this Agreement, Producer shall furnish to United Concordia a current Producer of Record Letter thirty days prior to the anniversary following termination of each Insurance Product or ASO contract on which commissions were payable under this Agreement as of such termination date. (e) Upon termination of the Agreement, all material furnished to Producer by United Concordia shall be promptly returned to United Concordia. (f) This Agreement shall not be assigned by the Producer without the prior written consent of United Concordia. (g) This Agreement shall inure to the benefit of any successor(s) in interest of United Concordia or the Producer. (h) In the event of a transfer of ownership of the Producer’s business, the Producer shall remain jointly and severally liable with the purchaser/transferee for all premium or ASO fee remittances received and all debts and obligations incurred under this Agreement, unless otherwise agreed to in writing by United Concordia. VIOLENT CRIME CONTROL ACT (a) United Concordia, as an insurer engaged in the business of insurance in the Commonwealth of Pennsylvania, is required to comply with the provisions of the Violent Crime Control and Law Enforcement Act of 1994 (“VCCA”), 18 U.S.C. §§ 1033 et seq., and related State laws. The VCCA prohibits companies and individuals from engaging in the business of insurance if the company or individual has ever (1) pled guilty to, (2) pled no contest to, or (3) been convicted of (a) any criminal felony involving dishonesty or a breach of trust, or (b) of an offense defined within the VCCA, unless that company or individual has obtained written consent from the appropriate state insurance department. State regulators have determined that consultants and contractors of insurers are “engaged in the business of insurance” for purposes of the VCCA. (b) United Concordia is required by State regulators to obtain assurances from its consultants and contractors that they are in compliance with the VCCA. These assurances shall not be deemed to constitute an admission by the consultant or contractor that it is engaged in or participating in the business of insurance within the meaning of the VCCA or that it is otherwise subject to the VCCA or jurisdiction of the applicable State insurance department. (c) Producer certifies that it has not (1) pled guilty to, (2) pled no contest to, or (3) been convicted of (a) any criminal felony involving dishonesty or a breach of trust, or (b) of an offense defined within the VCCA. Furthermore, Producer certifies that each of the employees, agents, and/or other representative of Producer who perform work or services described in the Agreement has not (1) pled guilty to, (2) pled no contest to, or (3) been convicted of any such felony or offense. Producer understands that if Producer learns that any person who is performing work or services on behalf of Producer as described in the Agreement may not be in compliance with the VCCA, Producer is obligated to immediately notify United Concordia, in writing, of this information and remove the subject person from performing the work or services. (d) If Producer, to fulfill its obligations under this Agreement, wishes to use an individual who has ever (1) pled guilty to, (2) pled no contest to, or (3) been convicted of (a) any criminal felony involving dishonesty or a breach of trust, or (b) an offense defined within the VCCA, the individual must first obtain written consent from the appropriate state insurance department (e.g., Pennsylvania Insurance Department for Pennsylvania residents; otherwise, the insurance department of the individual’s state of residency). Producer agrees to provide United Concordia with a copy of such written consent prior to assigning this individual to perform any work or services pursuant to this Agreement. (e) United Concordia reserves the right to conduct a reasonable audit to verify the compliance of Producer with the requirements of the VCCA. If requested by United Concordia, Producer agrees to provide United Concordia with a certification, in a form reasonably requested by United Concordia, that it is in compliance with the VCCA. In addition, and if requested by United Concordia, Producer agrees to provide United Concordia certifications, in a form reasonably requested by United Concordia, from Producer's personnel signifying their individual compliance with the VCCA. 7 07/13 15. 16. OTHER LAWS (a) Producer represents that it has complied, and it shall comply during the performance of this Agreement, with all federal, state, municipal and local laws, rules and regulations applicable to its activities under this Agreement, including but not limited to compliance with commission disclosure requirements. At the request of United Concordia, or of any governmental agency having jurisdiction over the activities performed under this Agreement, Producer shall furnish certifications to the effect that it has complied with said laws. (b) The parties intend that all activities under this Agreement shall be in compliance with all applicable laws and regulations. If any new law or regulation, or any interpretation of any existing law by any governmental authority, renders any activity hereunder illegal, unenforceable or noncompliant, then, notwithstanding any provision in this Agreement requiring mutual consent for amendments, United Concordia may amend the Agreement to achieve compliance with such new law in accordance with this section. United Concordia will notify Producer in writing at least thirty (30) days before the effective date of any such amendment. If United Concordia does not receive a written objection to the proposed amendment before the effective date stated in the notice, Producer will be deemed to have accepted the amendment. CHANGE IN LAW (a) 17. AMENDMENTS (a) 18. This Agreement may be amended or modified to comply with changes in applicable federal or state law, which amendments or modifications shall become effective without requiring the written agreement of the parties. Such amendments or modifications shall become effective immediately upon the mailing of the amendment or modification, unless United Concordia indicates otherwise in the amendment or modification. Except as otherwise provided in this Agreement, it may be amended or modified only by written agreement of the parties. NOTICES (a) All notices required or permitted to be given under this Agreement shall be in writing and shall be sent by prepaid certified or registered mail or a nationally recognized overnight courier, addressed to the party to whom it is directed at its address set forth below, or to such other address as may from time to time be specified by one party to the other. All notices shall be effective upon the earlier of (a) receipt, or (b) with respect to notices that are sent by certified or registered mail, three (3) business days after mailing, and with respect to notices sent by overnight courier one (1) business day after sending. To: UNITED CONCORDIA COMPANIES, INC. To: PRODUCER Attention: Producer Administration Print Name 4401 Deer Path Road Title Harrisburg, PA 17110 Address City, State Zip b) Any party may at any time change or amend its address for notification purposes, by mailing a notice as required above, stating the change and setting forth a new address. The new address shall be effective on the date specified in such notice, or if no date is specified, on the tenth (10 th) day following the date such notice is received. PA0713 8 07/13 19. EFFECTIVE DATE This Agreement shall be effective as of the date this Agreement is executed by United Concordia and shall continue in force until either party hereto elects to terminate it or is otherwise terminated in accordance with Section 13. IN WITNESS WHEREOF, the parties hereto each acting under proper authority and intending to be legally bound have executed this Agreement. For: UNITED CONCORDIA COMPANIES, INC. Signature: Date: _____________ Date: _____________ Print Name: Title: For: PRODUCER Signature: Print Name: Title: PA0713 9 07/13 APPENDIX A BUSINESS ASSOCIATE AGREEMENT (a) Member Privacy. All personally identifiable information about United Concordia’s Members ("Protected Health Information" or "PHI") is subject to state and federal statutory and regulatory privacy standards, including, but not limited to, the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), the Health Information Technology for Economic and Clinical Health Act (the “HITECH Act”) and regulations adopted thereunder by the U.S. Department of Health and Human Services, 45 C.F.R. Parts 160, 162, 164 (" the HIPAA Rules"). The parties shall treat all such information in accordance with those standards, and shall use or disclose PHI received from the other only for the purposes stated in this Agreement, or to comply with judicial process or any applicable statute or regulation. Producer recognizes and agrees that it is obligated by law to comply with the applicable provisions of the HIPAA Privacy and Security Rules. (b) Business Associate Provisions. Whenever any activity under this Agreement would cause Producer to be considered a “Business Associate” as defined in 45 C.F.R. § 160.103, the following restrictions shall apply to all uses and disclosures of all PHI. i. In all instances where the HIPAA “minimum necessary” standard, as provided in 45 C.F.R. § 164.502(b), applies, United Concordia shall disclose PHI to Producer, and Producer shall collect, create, or re-disclose such PHI, to the minimum extent reasonably necessary to permit the performance of Producer’s duties as described in this Agreement. ii. Producer’s use, disclosure or request of Protected Health Information shall utilize a Limited Data Set, if practicable. Otherwise, Producer will, in its performance of the functions, activities, services, and operations specified in this Agreement, use, disclose, and request only the minimum amount of Protected Health Information reasonably necessary to accomplish the intended purpose of the use, disclosure or request. In addition, Producer agrees to implement and follow appropriate minimum necessary policies in the performance of its obligations under this Agreement. iii. Producer shall use the PHI only to perform the functions delegated to it under this Agreement, and for no other purpose. iv. Producer shall: A. Not use or further disclose PHI other than as permitted or required by this Agreement, or to comply with judicial process or any applicable statute or regulation; B. Not use or disclose United Concordia’s PHI in a manner that would violate 45 C.F.R. Part 164, Subpart E “Privacy of Individually Identifiable Health Information” (“Privacy Rule”) if done by United Concordia. C. Notify United Concordia in advance of any disclosure of PHI that Producer is required to make under any judicial or regulatory directive or requirement; D. Notify United Concordia, and obtain United Concordia’s written consent, prior to engaging a subcontractor to which Producer intends to provide PHI; E. Store United Concordia’s PHI and confidential data only in secure data facilities located in the United States, and adopt security measures to assure that no person or entity physically located outside of the United States can access, acquire, use or disclose any such data; F. Develop, implement, maintain and use reasonable and appropriate administrative, technical and physical safeguards to preserve the privacy, integrity, confidentiality and availability of PHI, and to prevent non-permitted use or disclosure of PHI. When so required: a) The safeguards must reasonably protect United Concordia’s PHI from any intentional or unintentional unauthorized use or disclosure in violation of the HIPAA Privacy Rule, 45 C.F.R. Part 164, Subpart E and this Agreement, and limit incidental uses or disclosures made pursuant to a use or disclosure otherwise permitted by this Agreement. b) Such safeguards shall comply with applicable requirements of 45 C.F.R. Part 164, Subpart C, pertaining to the security of Electronic Protected Health Information ("EPHI"), and as required by the HITECH Act. Producer also shall develop and implement policies and procedures and maintain documentation of such policies and procedures to assure compliance with the Security Rule standards as required by the HITECH Act.; PA0713 10 07/13 c) Producer will ensure that any agent, including a subcontractor, to whom Producer provides EPHI agrees to implement reasonable and appropriate safeguards to protect the EPHI; and d) Producer shall report any security incident (as defined in 45 C.F.R. Section 164.304) of which Producer becomes aware to United Concordia. G. Report to United Concordia any use or disclosure of PHI not provided for in this Agreement of which Producer becomes aware within five (5) business days following discovery. In addition, Producer shall report, following discovery and without unreasonable delay, but in no event later than five (5) business days following discovery, any acquisition access, use, or disclosure of "Unsecured Protected Health Information" (as defined by the HITECH Act and any implementing regulations) in a manner not permitted by the HIPAA Privacy Rule (45 C.F.R. Part 164, Subpart E). Producer shall cooperate with United Concordia in investigating such unauthorized use or disclosure and in meeting United Concordia’s obligations under the HITECH Act and any other security breach notification laws. For purpose of this section, “discovery” shall mean the time at which the unauthorized acquisition, access use or disclosure is known, or in the exercise of reasonable diligence, should have been known, to a person (other than the person committing the breach) who is a member of the workforce of Producer, is an agent of Producer or is a member of the workforce of such agent. Any such report shall include the identification (if known) of each individual whose Unsecured Protected Health Information has been, or is reasonably believed by Producer to have been, accessed, acquired, or disclosed. Producer shall make the report to United Concordia’s Chief Privacy Officer not more than five (5) business days after Producer learns of such non-permitted use or disclosure. Producer’s report shall at least: a) Identify the nature of the non-permitted access, use or disclosure, including the date of the event and the date of discovery of the event; b) Identify the PHI accessed, used or disclosed (e.g., full name, social security number, date of birth, etc.); c) Identify who made the non-permitted access, use or disclosure and who received the non-permitted disclosure; d) Identify what corrective action Producer took or will take to prevent further non-permitted access, uses or disclosures; e) Identify what Producer did or will do to mitigate any deleterious effect of the non-permitted access, use or disclosure; and f) Provide such other information, including a written report, as United Concordia may reasonably request. H. Ensure that any agents, including any subcontractor approved by United Concordia under subsection (C) above, to whom Producer provides PHI received from United Concordia, or created or received by Producer on behalf of United Concordia, agrees to the same restrictions and conditions that apply to Producer with respect to the protection of information under this Agreement; I. If Producer holds any PHI in a Designated Record Set as defined by HIPAA, make PHI available to individuals as required by 45 C.F.R. Section 164.524, and, where applicable, the HITECH Act. Producer shall make such information available in an electronic format where directed by United Concordia; J. If Producer holds any PHI in a Designated Record Set as defined by HIPAA, make PHI available for amendment and incorporate any amendments in accordance with 45 C.F.R. Section 164.526; K. Make available to United Concordia the information required to provide an accounting of disclosures in accordance with 45 C.F.R. Section 164.528, and, where applicable, the HITECH Act; L. Ensure that any of Producer’s personnel, subcontractors or agents who may come into contact with United Concordia’s PHI undergo any privacy and security training required by United Concordia prior to receiving PHI from United Concordia. Producer may substitute its own training for these purposes; however, all Producer training materials are subject to prior review and approval by United Concordia; PA0713 11 07/13 M. Complete and promptly return to United Concordia any affirmation or certification requested by United Concordia to monitor Producer’s compliance with these provisions, which certification shall not be required more than once in any twelve (12) month period; N. Upon reasonable notice, make its internal practices, facilities, books, and records relating to the use and disclosure of PHI received from United Concordia, or created, or collected by the Producer on behalf of United Concordia, available to the Secretary of Health and Human Services and/or United Concordia when called upon for purposes of determining United Concordia’s and/or Producer’s compliance with these Business Associate provisions and applicable requirements of the HIPAA Privacy and Security Rules; and v. At termination of this Agreement, if feasible, return or destroy all PHI received from United Concordia, or created or received by Producer on behalf of United Concordia, that Producer still maintains in any form and retain no copies of such information or, if such return or destruction is not feasible, continue to treat all such information in accordance with the limits provided in this Agreement and limit further uses and disclosures to those purposes that make the return or destruction of the information unfeasible. vi. Producer shall not directly or indirectly receive remuneration in exchange for PHI. Nor shall Producer receive payment directly or indirectly for any use or disclosure of PHI for marketing purposes. vii. Notwithstanding any provision to the contrary contained in this Agreement, if the HIPAA regulations governing PHI are modified in any way affecting the Business Associate Provisions of this Agreement, as soon as reasonably possible, but no later than the compliance date for any regulation, United Concordia shall modify this Agreement to incorporate relevant provisions. United Concordia shall provide Notice to Producer of the modifications (Notice of Amendment) , and the Agreement shall be deemed to be amended in accordance with the Notice of Amendment unless Producer objects in writing within ten (10) days of receipt of the Notice. viii. This provision applies only if Producer will conduct Standard Transactions on United Concordia’s behalf. If Producer conducts in whole or part electronic Transactions on behalf of United Concordia for which DHHS has established Standards, Producer will comply, and will require any subcontractor or agent it involves with the conduct of such Transactions to comply, with each applicable requirement of the Transaction Rule, 45 C.F.R. Part 162. Producer will not enter into, or permit its subcontractors or agents to enter into, any Trading Partner Agreement in connection with the conduct of Standard Transactions on behalf of United Concordia that: A. Changes the definition, data condition, or use of a data element or segment in a Standard Transaction; B. Adds any data element or segment to the maximum defined data set; C. Uses any code or data element that is marked “not used” in the Standard Transaction’s implementation specification or is not in the Standard Transaction’s implementation specification; or D. Changes the meaning or intent of the Standard Transaction’s implementation specification. ix. If United Concordia determines that Producer has violated a material term of these Business Associate Provisions, United Concordia is authorized, pursuant to 45 C.F.R. Section 164.504(e)(2)(iii), to terminate the Agreement. If United Concordia determines that termination of the Agreement is not feasible, it may report such breach of the Agreement to the U.S. Department of Health and Human Services. x. The terms and conditions of these Business Associate Provisions shall override and control any conflicting term or condition of the Agreement. All non-conflicting terms and conditions of the Agreement remain in full force and effect. xi. If practicable and feasible, written notices to report the use or disclosure of PHI as required under this Agreement, or questions regarding the handling of PHI, shall be made by secure email to comply with timeliness requirements, followed by a hard copy notice by U.S. mail or overnight delivery service. If secure email is not practicable or feasible, written notices shall be sent via facsimile followed by a hard copy notice by U.S. mail or overnight delivery service. All notices should be addressed as follows: PA0713 12 07/13 Address: United Concordia Privacy Office 4401 Deer Path Road Harrisburg, PA 17110 Telephone: 1-866-215-2352 (toll free) Fax: 1-717-260-7494 Email: SSSPriv-Sec@highmark.com Attention: Privacy Official xii. The requirements of the HITECH Act do not preempt more stringent requirements of the Centers for Medicare & Medicaid Services ("CMS") applicable to Medicare Parts C and D. In the event Producer becomes aware of a "security incident" that presents a threat to the integrity or security of CMS data on any data system Producer controls or accesses which houses CMS data, Producer is required to report to United Concordia as soon as possible. For purposes of this section, the definition of "security incident" is: the attempted or successful unauthorized access, use, disclosure, modification or destruction of information, or interference with system operations in an information system. Security incident also means the loss of data through theft or device misplacement, loss or misplacement of hardcopy documents, and misrouting of mail, all of which may have the potential to put the data at risk of unauthorized access, use, disclosure, modification or destruction. xiii. Producer will indemnify and hold harmless United Concordia and any United Concordia affiliate, officer, director, employee or agent from and against any claim, cause of action, liability, damage, cost or expense, including attorneys’ fees and court or proceeding costs, arising out of or in connection with any non-permitted use or disclosure of United Concordia’s PHI or other breach of this Agreement by Producer or any subcontractor or agent under Producer’s control. xiv. In any case in which Producer’s improper use or disclosure of PHI subject to the Agreement or the occurrence of a security breach or other event while such PHI is in Producer’s (or any of its Subcontractors’) possession or control subjects United Concordia to an obligation to provide breach notification to affected individuals under state or federal law, Producer shall be solely responsible for any and all costs incurred by United Concordia in satisfying the breach notification requirements or other related provisions of state or federal law. xv. The terms “Electronic Protected Health Information,” “Protected Health Information,” “Standard,”, “Trading Partner Agreement” and “Standard” have the meanings set out in 45 C.F.R. § 160.103. The term “Standard Transaction” has the meaning set out in 45 C.F.R. § 162.103. The term “Limited Data Set” has the meaning set out in 45 C.F.R. § 164.514(e). The term “use” means, with respect to Protected Health Information, utilization, employment, examination, analysis or application within Producer. The terms “disclose” and “disclosure” mean, with respect to Protected Health Information, release, transfer, providing access to or divulging to a person or entity not within Producer. For purposes of this Agreement, United Concordia’s Protected Health Information encompasses United Concordia’s Electronic Protected Health Information. Any other capitalized terms not identified here shall have the meaning as set forth in the HIPAA Rules. PA0713 13 07/13