.. it PROCOPIO @Procopro Suite 2200 San Diego, on 92101 T. 619.238.1900 F. 619.285.0398 MICHAEL J. KINKELAAR . P. 619.515.3250 AUSTIN DEL MAR HEIGHTS SAN DIEGO VALLEY April 28, 2017 Michaei McDermott President TMSC Service, LLC 5117 Renaissance Avenue, Unit San. Diego, California 92122 Re: Management Services Agreement Dear Michael: [twas nice torneetyousomeweeks Procoplo-now represents . professional corp-oration dba The Medical Center Dr. Murphy requested that! send this letter to you to clarify a situation with you. As you know, on behalf of your company, TMSC Services, LLG, you had drafted and presented to MSC a Management Services Agreement dated November 2, 2015' between M80 and TMSC Services, LLC, which was to provide for a number of things that your company was to provide to MSG. Apparently that never got off the ground. After speaking with Dr. "Murphy about what had happened, it appears that nothing has really been provided. by either party under the agreement. What Dr. Murphy had expected never occurred, and it appear that the contract has never really been implemented by either of you. The various services, equipment and other things that were going to be provided to MSG by TMSC were not provided. Both parties have in fact operated as if the agreement was not in place, which is consistent with the facts. in fact, MSG has had to obtain for itself the services that TMSC was to provide, at its own cost and expense. Accordingly, Dr. Murphy wanted me to send you this letter just confirming that the Management Services Agreement Is not legally effective and is thus not in force. if you think that it is. in force, this letter shall serve as the official notice of termination for failure to provide the goods and services in the agreement. masonic-cum DOCS ,1 MANAGEMENT SERVICES AGREEMENT THIS MANAGEMENT SERVICES AGREEMENT (this ?Agreement?) is made and entered into as of November 2, 2015 (the ?E?ectz?ve Date?), by and between TMSC Services, LLC a Delaware limited liability company (?Manager?), and Kevin T. Murphy, MD, A Professional Corporation d/b/a The Medical Center, a California professional corporation with respect to the following: A. PC is a California professional corporation entitled to practice medicine in the State of California and is a provider of transcranial magnetic stimulation and radiation oncology therapy services to patients (?Treatment Services?) at locations in San Diego, California, (each a ?Facilin?U. B. The Treatment Services rendered by PC and its physicians at the Facility consist of professional services (?Professional Services?) and technical services (?Technical Services?). C. PC shall seek reimbursement for the delivery of such Treatment Services with respect to the technical component thereof (the ?Technical Component?) for the Technical Services and the professional component thereof (the ?Professional Component?) for the Professional Services. D. PC desires to engage Manager to provide certain administrative and non-medical management services as more fully described herein at the Facility and Manager desires to accept such engagement in accordance with the terms and conditions set forth in this Agreement. In consideration of the foregoing recitals, which recitals are hereby incorporated in and made a part of this Agreement, and of the mutual covenants and agreements contained herein and for other good and valuable consideration, the receipt and suf?ciency of which are hereby acknowledged, the parties agree as follows: 1 DUTIES OE MANAQER. 1.1 General Management and Administrative Services. Services and Professional Services, all non-medical management and administrative services set forth in this Section 1 (collectively, the ?Management Services?), in each case in such manner and to such extent as is reasonable and appropriate to enable PC to provide Treatment Services at the Facility. 1.1.2 Manager hereby accepts such engagement and agrees to furnish to PC the Management Services with respect to the Treatment Services at the Facility in accordance with the terms of this Agreement. 1.1.3 All decisions regarding patient care and the provision of professional medical services shall be made by, and in accordance with, the best professional judgment of the physicians of PC, employed by or contracted with PC, at the Facility providing such Technical Scrviccs (each, a Physician?). Notwithstanding anything to the contrary heroin, Manager shall not provide the Management Services with respect to medical services other than the Treatment Services, including medical legal consultation services performed by PC or officers, directors, employees, contracted physicians or shareholders of PC (each,- an ?Individual PC imitate?); (ii) publishing activities of PC or any Individual PC Affiliate; speaking engagements and presentations by PC or any Individual PC Affiliate; and (iv) faculty or teaching positions hold by any Individual PC Af?liate. 1.2, Roam; To the extent permitted by law, Manager, at Managcri's shall provide all non~physioian personnel, including nurses, technicians, therapists, physics coverage and other personnel, necessary for the proper oporstion of the Facility (?Support Personnel?) on behalf of PC, oxcapt for Professional Support (as claimed in mongg. Manager shall consult with PC regarding Support Personnel, including, but not limited to, physics coverage. Manager shall act salary levels, Support Personnel policies and employee benefits and shall dovolop and implement performance standards. In the event PC has any concerns regarding the performance of? any Support Personnel, PC shall report such concerns to Manager. Support Personnel may be employed by an af?liate of Manager, in which care Manager shall reimburse such af?liate for the cost of any such Support Personnel providing services for the benefit of Manager. 1.3 L2. SQ- With respect to the Facility, Manager shall provide the Facility for use by PC and shall maintain it in good order, condition and repair; provided, however, that Manager shall not ?he obligated to make any altsrations, improvements or repairs other than ordinary and routine maintenance and repairs to the Facility, unless the parties agree that certain alterations, improvements or repairs are ooccssary to offer Treatment Services in accordance with the prevailing standard of cars in community served by PC. Although Manager is nor obligatod to do so, Manager shall have the right to remodel, alter or improve the Facility; provided however, that Manager will consult with PC, through the Liaison (as de?ned in Section 2.6 hereof), prior to beginning such romoclcling, alterations or improvements. Manager authorizes PC to utilizes and occupy tho IF'acility for the term of this Agreement in accordancc with. the provisions of this and to any applicahlo lease or similar agreement regarding the Facility; provided however, that Manager may relocate the Facility upon reasonable notice to PC to s. location of similar quality within the same goncral geographic area. 1,4 gag nipmongm?or?vr'cgst Manager shall provide and maintain the equipment reasonably necessary to offer radiation oncology services at the Facility in accord-shop with the. provailing standard of cars in tho community served by PC, as determined in Manager?s rcasonohlc discretion allot consultation with PC through the Liaison, including, but not limited to, ?xtures and cquiprnont (collectively, the ?Equipmonr?). At all times during the term of this and any extension hereof, PC shall not move or cause the Equipment to be moved. . 1.4.1 Manager shall be responsible for all ordinary and necessary repairs and maintenance of the Equipment, the necessity of which shall he by Manager (including, but not limitcd to, periodic calibration of tho Focility"s linear accelerator(s) and related equipment); provided; however, PC shall direct each PC Physician and all now-physician pcrsonncl of PC working at the Facility to report to Manager any malfunctions and repairs or maintenance needs of which he or she may become aware and to use the Equipment in a matmcr consistent with industry standards. 1.4.2 PC shall not make any alterations, additions or improvements to the Equipment at Facility ?without the prior writtcn concoct of Manager. Any and all alterations, accessions, additions or improvements made to the Equipment shall automatically become the property of Manager. . 1.4.3 occupancy and use of the Facility in accordance with this Agreement shall be doomed to constitute acknowledgement that, having carefully inspected all the Equipment with to the Facility, PC has found all of such Equipment to be in good condition and working order. 1.5 Information Services. Manager shall, with respect to its Management Services, provide a ?nancial infonnation system utilizing such systems), report packages and third party vendors (including affiliates of Manager) as Manager deems necessary. PC acknowledges that the F18 (and any modi?cations or customizations) are trade secrets which shall remain the solo proprietary property of Manager, Subcontractor (as de?ned in chtion 1,1 .1 or the third party vendor, as the case may be; and (ii) PC shall only have. rights with respect to information processed by such F18 to the rcquircd by law; provided, however, that if the FIS is that solo repository of certain of i?C?s information, then such intormation will be made available to PC in a readable format. 1.6 Eirnmigl?m. With respect to the Technical Services, Manager shall: 1.6.1 establish and maintain and accounting systems and records with respect to the Technical Serviccs by PC at the Facility, including, but not limited to, payroll processing for Support Pcrsonncl, accounts payable, accounts billing and collection (except that Manager or any Subcontractor Shall not be responsible: for (or guarantor of) unbillcd, or amounts); and bc responsible for the of reports and forms required by prepaid hcolth care plans and health plans sponsored by employers, insurance companies, agencies and other third party payors (collectively, "?Healrh Plans?), all. as Manager reasonable and appropriate and consistent with industry practice for l-ikc~kind organizations and operations; 1.6.2 develop and adopt an annual operating and capital expense budget; 1.6.3 bill and collect fees due to PC for the Technical Services provided by PC at the Facility and assist in insurance: and third party recoveries, related thereto (acknowledging that PC has the some Subcontractor to bill and collect fees due to PC for the Professional Services and that cold Subcontractor may bill and collect for fees on a global basis, that is, including the Profcssionnl Sctviccs and Technical Services in the some bill); 1.6.4 act as agent for and. on behalf of PC and without any further action by or authorization from or on the part of PC, establish and maintain such PC bank or other accounts as Manager shall deem nocessen'y or appropriate to mancgc funds ef?ciently. Manager, at its shall have tho right to maintain Jt?C?c funds in one or more: common Mmingcr .3. accounts. Notwithstanding the forogoing, to the extent that Manager acts as billing agent for Medicare, Medicaid and other goverrnnental payor receivables for Technical Services, Manager shall place payment for such receivables in. a ?-?lock box? account that is under the name and the sole control of PC or such other account as may be required, if applicable, for compliance with applicable state and/or federal law (the ?Lock Bax Account?). PC shall direct the financial institution at which the Lock Box Account is maintained to sweep all receipts at the end of each business day into a bank. account .rnaintained by Manager. During the term of this Agreement and any extensitm hereof; Manager, as agent for PC, is expressly authorized hereby to, and shall, disburse from one: or more accounts of PC (other than the Lock Box Account) or of Manager, on behalf of PC, all sums required for the payment of the Management Fee (as dcfined in and all other costs, expenses and disbursements that are required or authorized by this Agreement; and 1.6.5 permit PC or Pills designated agent to inspect, upon reasonable noti?cation to Manager and during normal business hours, at its of?ce in Marmattan Beach, California or such other place as Manager may have its office, the ?nancial and accounting records of Manager with respect to the Facility. 11.7 Manager shall, with reopect to the Technical Services, provides such administrativo support as it deems necessary for all utilization and quality management activities by PC. 1.8 Mg?galmg?me ?upnli?s~?nd Q??ge 5 err/jogs. Manager shall be responsible for providing janitorial, laundry service and utilitios for the Facility, together with all non? medical of?ce supplies and all medical supplies required, in Manager?s reasonable discretion, with respect to the Technical Services, or as reasonably requested by the Liaison. 1.9 ?ogthillm . 1.9.1 Manager shall negotiate, prepare, execute and deliver on behalf of PC, utilizing as noceseary or appropriate the power of attorney grant-ed herein to Manager, all agreements with Health Plans for the Facility which meet the parameters provided by PC to Manager, as modit?ietl if elected by PC and Manager, on an annual basis. If PC and Manager are unable to agree on new parameters, then the parameters in effect for the prior year shall continue to apply, until the parties agree otherwise. 1.9.2 With respect to the Toclmicai Services, Manager shall assist in providing third party payer information for coordination of bene?ts and when appropriate shall assist in the collection of such bone-tits. 1.9.3 With respect to the Technical Services, Manager, as necessary or appropriate, shall assist with the determination of the eligibility of patients for health care coverage prior to the provision of medical sort/ices at the Facility, in compliance with all applicable laws, and shall administer a system for retroactive eligibility determination. 1.9.4 Manager shall coordinate communications with Health Plans and shall provide PC with administrative support, in Manager?s determination necessary or appropriate, to enable PC to perform in a timely manner all non-medical aspects of its contracts with Health Plans and other third party payors, with respect to the Toohnical Sort/loos. 1.10 ?credentisiin g. Manager shall assist PC in maintaining and updating credentialing ?les on each ofthc physicians employed by? contracted with so, for the Facility. Updates of such tiles shall he performed at least annually or as more often required contractually or by law. Manager shall provide any orodentialing information to PC upon the reasonable request of PC. With respect to each physician being recruited by PC, Manager shall obtain for each such physician the following documentation and/or telephone veri?cation: 1.10.1 a copy of his or her current license to practice medicine in the state in which he or she is providing Technical Services; ?1.10.2 veri?cation of his or her relevant training exporionoe, including internships, residencies, fellowships and past employment; 1.10.3 veri?cation in writing of any specialty Board Certi?cation; and 1.10.4 veri?cation of any professional claims history with the National Practitioner Databank. l.ll . ana t. Subcontract .Ri of Fill? Ls. Manager may subcontract with other persons or entities (ea-oh, a ?Subcontractor?), including, without limitation, affiliates of M-anagor (and its constituent members), to perform all or any part of the Management Services and, unless oxorossly and specifically prohibited by this Agreement, any duties or obligations of Manager in this Agreement may be performed by a Subcontractor chosen by Manager in its roasonublo discretion without the prior consent oi?PC. 1.12 Lhnitntigns on Extragrginggy mama. Except for the Management Son/loos, Manager shall not be responsible, on behalf of PC or otherwise, for the arrangement or costs of legal or accounting sorvioos relating to or required by PC. 2 2.1 gory. loos. PC agrees that Manager shall. cause the Facility to be open on a full~time basis, Monday through Friday, consistent with patient volume and demand, including emergency coverage as evaluated by PC for the provision of Treatment Services, and PC shall causo PC Physicians to provide Treatment Services at the Facility at all times when such Facility is onen for tho provision of Treatment Services, with such staf?ng levels for PC Physicians to be commensurate with the professional and clinical standards at first-class medical treatment centers and. consistent with articulated industry standards. PC shall arrange for appropriate physician stuf?ng at all times to ensure continuity of care, and shall be responsible, without direction from Manager, for arranging staffmg by Zoom tone-us physicians when PC Physicians are not available to provide Treatment Services at a Facility and by other non-physician porsormol required by applicable law to bo cmployod by PC rather than Manager (such personnel, ??Pro?zssional Support?). contracted with, or proposed to bo employed by or 2..2 PC, with the assistance of Manager, shall be responsible for providing, developing, establishing, reviewing and revising guidelines, policies, procedures and protocole for the physicione anti professional staff or the Facility. At a minimum, PC shall review the recommended guidelines for appropriate care of cancer patients as provided by Manager or its Subcontractor and adopt and implement care guidelines, with such changes as PC may reasonably require, after consultation with Manager, based on the professional and clinical standarde of P03 physician community. The protocols established by PC shall include the institution by PC of a periodic mulri-clisciplinary review of? the care one treatment oi?pationts of Facility. The foregoing guidelines, protocols and review shall consider all treatment alternatives for cancer patients, not radiation therapy only. 2.3 Rhygician Morphing. Manager shall be responsible for identifying the need for additional PC Physicians to perform Treatment Services at the Facility; provided however, subject to the provisions of ?ectign wagon hereof, PC shall be responsible for the recruitment of such additional PC Physicians. 2.3.1 if Manager identifies the need for an additional PC Physician at a Facility, Manager shall notify PC in writing (or ?Recruitment Notice?) of such need. for recruitment, Upon receipt of such noti?cation, if- PC agrees, then PC shall immediately initiate the recruitment process in accordance with the speci?cations set forth in the Recruitment Notice, with the goal of the physician selected by PC (in consultation with Manager) having commenced employment at the Facility within one hundred eighty (180) days after the giving of 3 Recruitment Notice. PC also may initiate recruitment efforts on its own initiative upon notice to Manager. "Notwithstanding the foregoing, PC may utilize a loom renens if it is not satis?ed with the . available candidates or is unable to employ a candidate in accordance with. its standard practice fore period of sixty (60) days following the expiration of the foregoing one hundred eighty days following the giving of a Rocmitment Notice. The choice for any locum lemons will be subject to the reasonable review of Manager. 2.3.2 Manager may, in its sole discretion, have the right, but not the obligation, to seek outside assistance or contract with consultants to provide any and all recruitment services reasonably necessary as determined by Manager, or Manager?s expense. 2.3.3 PC agrees and acknowledges that all PC Physicians recruited for a Facility shall have, at a minimum, the education, expertise and ability to perform Treatment Services at a level and quality at least equal to PC Physicians already providing Treatment Services on behalf of? PC. 2.3.4 Although PC shall be responsible-for ?nal recruitment decisions, PC shall consult with Manager and review the credentials of all PC "Physicians recruited for a Facility with Manager prior "to any extension of an offer to any PC Physician. - 2.3.5 PC shall designate a recruitment liaison for PC Physician recruitment, and such recruitment liaison shall be responsible for all communication with Manager as it relates to PC Physician recruitment for the Facility. PC may also utilize the services of a third party search ?rm, provided, hmrever, that PC has obtained the mitten approval of Manager prior to engaging such third party. .- -.4 - 4W?mn?-?4w1mh?q-?o .. . as. w. 2.3.6 PC shall obtain and enforce agreements from each PC Physician, ornament to which each. PC Physician agrees not to establish, operate, manage, control, own, or consult with, directly or indirectly, any medical office, clinic, outpatient, ambulatory treatment or diagnostic facility for the provision of radiation oncology treatment during the: term of his or her engagement by PC at a Facility; (ii) provide Treatment Services during the term of his or her engagement by PC at any medical office, clinic, outpatient, ambulatory treatment or diagnostic facility other than a iiecility staffed or operated by or contracted with during the term of his or her engagement by PC and fora period of two (2) years alter the termination of his or her engagement by PC: solicit, directly or indirectly, any employee, independent contractor or consultant of PC or Manager (or its constituent members) to become an employee, independent contractor or consultant to or for any other person or entity or, using any Proprietary Information (as de?ned in ?ection_Ll), solicit any customers of PC. or Manager, unless otherwise agreed by Manager and and (iv) use ?or disclose any Proprietary Information of Manager or PC. PC shall deliver such agreements in form and substance reasonably acceptable to Manager concurrently with. the Effective Date for PC Physicians who shall render Treatment Services at a Facility immediately following the Effective Date and within ten (10) business days following the engagement of any additional PC Physician for a Facility. If a physician that PC desires to retain declines to execute such an agreement, such physician shall not provide Treatment Services at a Facility; provided. however, that physicians providing care on a locum renens basis shall not be required to execute such an agreement so long as they agree to comply with clause (iv) above. Unless prohibited by law, Manager shall be deemed a third party bene?ciary of such agreements. 2.4 ?gigw leigarigmg. PC shall provide, at: a minimum, an annual review of each PC Physician and a six (6) month review as well as an annual review for each PC Physician hired by PC after the date hereof, subject. to Manager?s request for an earlier review of a PC Physician. If so requested by Manager, PC shall immediately commence its review of the PC Physician as to Whom Manager has requested a review and PC shall consult with Manager when it has completed such review, which in no event shall be later than thirty (30) calendar days alter request therefor from Manager; provided, however, that PC shall undertake to complete such review earlier as circumstances require. All reviews of PC Physicians shall include a review of the PC Physicians? adherence to the guidelines, policies, procedures and protocols of PC, including the got-inclines for appropriate care of cancer patients and periodic multidisciplinary case review established in accordance with Section 3,2. To the extent not prohibited by law, PC shall notify Manager as to any annual. or other'aclverse reviews, including the specific ?ndings of such reviews, and PC timber covenants and agrees to take prompt corrective action with respect to the subject PC Physician and consult with Manager prior to taking such action. 2.5 LC Bhvsician Standard-s. PC shall prohibit a PC Physician from providing Treatment Services at the Facility in the event that PC becomes aware of any of the following: 2.5.1 such PC Physician?s license to practice medicine is revoked, expired, suspended or qualified, such PC Physician is placed on probationary status by the California Medical Board or other governing body, such PC Physician?s Controlled Substance Certi?cate from the United States Drug Enforcement Administration is revoked, suspended, qualified or expired, such PC Physician?s medical staff membership or clinical privileges at any hospital are revoked, suspended or quali?ed, or ouch PC Physician is assessed a civil monetary penalty or is excluded from participation in the Medicare or Medicaid program; 2.5.2 such PC Physicianh professional liability insurance coverage terminates or expires for any reason or PC Physician?s malpractice carrier informs PC Physician that it will not continue to provide coverage for such PC Physician; 2.5.3 such PC Physician engages in conduct which, for any cause or reason, including, but not limited "to, the inability of PC Physician to work effectively with others, is determined by PC upon consultation with Manager to be unethical, to be detrimental to patient satiety or the delivery of quality patient care, or to be contrary to the professional and clinical standards of? similar physicians in community; or 2.5.4 such PC Physician is indicted. or convicted of a felony or misdemeanor involving moral turpltude or indicted or convicted of a state or federal. criminal offense related to the delivery of Medicare or Medicaid services, the neglect or abuse of patients, fraud, theft, embezzlement, breech of ?duciary responsibility or financial misconduct. 2.6 mmeipop. PC shall designate a PC: Physician (initially Kevin Murphy, MD.) to serve as liaison to Manager (the The Liaison shall provide Manager with uniform PC guidelines, policies, procedures and protocols with respect to operations at the Facility and shall inform Manager in writing regarding any PC Physician credentialing or PC Physician or Professional Support personnel employmentmrelotcd issue that may arise with respect to the services provided by PC at the Facility. 2.6.1 In the event PC becomes aware of any claim, lawsuit or action brought against or involving PC or any PC Physician, the Liaison immediately shall notify Manager in writing of such claim, lawsuit or actio . 2.6.2 The Liaison also shall facilitate ongoing continuing education and quality asswrance programs for PC Physicians and Manager. 2.6.3 The Liaison shall be responsible for ensuring that all obligations of PC that require any inter-{hoe with Manager are completed within the applicable time period prescribed herein and, to the extent no time period is so prescribed, within the "time period within which Manager has requested action and/ore response from PC. . 2,7 edipgl Reports. PC shall cause the PC Physicians to timely dictate, review and approve a complete Mitten medical report (which may be in electronic or paper form) for the l-?ecility?s records concerning the services provided at the Facility for each patient receiving Treatment Services at the Facility. Medical records shall be in accordance with all state and federal laws and regulations. 2.8 ngpliergoo with Law. Accrediting Stagg os 'tal Pr'vilo es. PC shall cause the PC Physicians to comply with all govermrteotel laws and regulations and any applicable standards of any organization by which the Facility is or may seek to be accreoited. Each PC Physician shall maintain medical staff membership or clinical privileges with at least one (1) acute care hospital located in the market served by the Facility. 2.9 ?ange 9' Emmott. Without the prior written consent of Manager. PC clay not materially alter or change- its principal business or method of clocking rcirnburscmont, it being acknowledged by PC that the compensation arrangements for Manager hero-in have been premised on tho currcutiy preposcd husinors of PC with respect to the Technical fierviccs. Any material change to busincso or to the reimbursement structures in place as of the Effective Date shall require adjustment of Manager?s compensation hcrcundor, and. if the parties are unable to satisfactorily adjust Manager?s compensation hereunder, than Manager shall have the right to terminate this Agreement. 3 mm. Managcr shall be entitled to receive, as considcration for the Management Scrviccs provided hereunder, an amount equal to fifteen percent of the ?Not Revenues? (as defined below) (the ?Management For?), determined on an accrual which Management Fee shall not exceed fair market value for the Management Services provided hereunder. PC shall be entitled to retain as consideration for tho Professional Services, an amount equal to eighty-?ve percent of the Net Revenues (the ?Professional Fee?), determined on an accrual basis, which Professional Fee shall not exceed fair market value for the Professional Services provided hereunder. The Professional Foo shall be and remain the sole property of PC and nothing herein is intended to entitle Manager to share or split the Profossional Fee. ?Net Revenues? shall mean all i?mds received as reimbursement for tho Toohuioal Component and Professional Component of Treatment Services .?rrnishcd by PC at the Facility on or after the Effective Date, loo-s any refunds and apprOpriatc adjustments, or collection agency charges with respect thereto. Payment of tho Manugomont Foe shall be made in accordance with this Section 3. 4 A o; . ION. 4.1 low. The term of this Agreement shall commence on the Effective Date and shall cod on the tooth (10m) anniversary of the Bi?tbctivc Date and shall renew from year to year the-reader m?oss sooner as provided for licrciri. 4.2 Tomi lit- gtion for Caugg. Nomithstauding Sgctioo 4.1 either party may terminate this for cause upon written notice to the other party, as set forth herein. For purposes oi?this Agreement, ?cause? shall be defined solely as any oi?thc i?dllowing: . 4.2.1 Material breach of any provision of this Agreement. and failurc to cure such breach within sixty (60) calendar days after receipt of written notice of-saicl material breach from tho" non-breaching party; unless such breach cannot be cured within such period; and (ii) the breaching party commouccs curing such breach within such period and diligently completes such curd as as possible thereafter, but in no crept. more than ninety (9-0) days following receipt of such notice. 4.2.2 A party?s violation of a. federal, state or local statute or regulation that does or likely would rcsult in pictorial adverse harm to either party and that is not cured within thirty (30) calendar days atlor receipt of written notice of such violation by a party, unless such violation cannot he owed within such thirty (30) day pcriod and the. breaching party .commonces curing such breach within such thirty (30) day period and diligcutly completes such cure as as possible thorcoftor, but in no cverrt more than sixty calendar days following of such notice. 4.2.3 A party opplieo for or consents to the appointment of a re-cci'vor, trustee or liquidator of all or a substantial part of its assets, filos a voluntary petition in bankruptcy. allows an involuntary petition to remain for a period of more than ninety (90} calendar days, makcs a general assignment for the bene?t of its creditors, ?les a petition or answer cooking reorganization or arrangement with its creditors, admits in writing its inability to pay its debts when due, or suffers any order, judgment or decree to be ontorod by any court of competent jurisdiction, enjoining such party from the conduct of oil or substantially all of its business operations for a period in excess of sixty (60) calendar days, Mind-looting such party bankrupt or a petition seeking its reorganization or the appointment of a receiver, trustee or liquidator of such party of all or a substantial part of its assets. 4.2.4 The dissolution or liquidation of a party; provided, hows-yen, that commencement of dissolution, winding up or liquidation. proceedings shall not be: considerod to be ?cause" hereunder until the earlier to occur of the filing of a ccttiflcato or entry of on order of dissolution with respect to a party; or (ii) the pnsoogc of thirty calendar days from tho commencement of dissolution or liquidation proceedings (cithor on a voluntary or involuntary basis) by the party or its directors. managers, shareholders. or mombors, as the case may be; and provide-d, further, that any event resulting in an assignment of this Agroomont permitted under ?ction 16 of this Agreement shall not be doomed to be a liquidation or dissolution for purposes of this?ooggn??l 4.3 Ef?cot of flora; motion. Expiration or tortnination of this Agreement shall not release or discharge either party from any obligation, debt or liability which shall have previously accrued and remains to be performed upon the date of expiration or termination. Notwithstanding any provision hereof to the contrary, upon expiration or tonninntion ot?thio Agreement, Manager shall continuc to be entitled. to receive its Management Fee for Management Services provided prior to tho torminotion or expiration. Accordingly, Manager ohall have the exclusive, perpetual tight to continue collection clifortt rotated to the Technical Component of Treatment Services rendered prior to the termination or expiration date and shall he cntitlcd to retain such Cash Collections as payment of its Management Fees. '5 WARRANTIES nun COVENANTS or MANAGER. 5.1 good, Standing. Manager hereby rcproocnts, warrants and covenants that, as of tho dato hereof and during the term of this it is limited liability company in good standing and organized "under the lows of the State of Delaware and registered to do business in the State of California and has no legal or other impediments to its ability to carry out its duties hereunder. 5.2 mm. Manager covenants and agrees that it shall provide PC with. all. information reasonably required by PC to its obligations hereunder to tho extent reasonably available to Manager; provided, however, that PC shall have givcn noticc suf?cient with respect to the particularities of the information required by PC to enable Manager to provide such information in a commercially reasonably manner. Manager further covenants that it shall grant PC such authority as may be necessary or desirable, in the reasonable judgment of PC, to ensure ability to perform its obligations hcro'under. 5.3 lodgmni?gntign. To the extent not covered by insurance maintained by any PC Party (as do?ncd in this smog), Manager shall indemnify, defend and hold harmless PC and its officers, directors, shareholders, employees, agents, attorneys, representatives and independent contractors Parties?) for, from and against any and all liabilities, losses, damages, claims, causes of action and oxponsos (including reasonable attomoys? fees and costs and tho costs of any dispute resolution proceeding) (collectively, ?Losses? suffered by PC Parties to the extent arising out of any acts of gross negligence or willful misconduct of Manager Parties or" any breach? or omission, performance or by Manager Parties under or of any term of this Agreement. ?Manager Parties? shall moan Manager and its of?cers, directors, shareho'lclors, affiliates, employers, agents, attorneys, representatives and independent contractors. 5.4 Complinn go With "Law. Manager reprosonts and warrants that it is and will continue to be in motorinl oomplianoo with all applicable provisions of federal, state and local laws, rules and regulations during the term of this Agreement and any ronowaKs) thereof. 5.5 homom- 2. Manager, at Manager?s exocrine, shall maintain general liability insurance with respect to its operations with limits of not less than Ono Million Dollars ($1,000,000) per occurrence and Throo Million Dollars ($3,000,000) in the annual aggregate. With respect to such insurance, Manager. shall, to the extent .ronsonably- permitted by Manager?s insurer, name PC as an additional insured on its general liability policies, and Manager shall be responsible for the cost therefor. 6 REPRESENTATIONS, WARRANTIES AND COVENANTS OF PC. 6.1 gong -. ?tanding. PC hereby represents, warrants and covenants that, as of the date hereof anti during. the term or? this Agreement, it is a professional corporation organized and. in good standing under the laws of the State: of California and has no legal or other impediments to its ability to carry out its. duties hereunder and to enter into one or more agreements with Health Plans or government poyors from time to time, as appropriate. 6.2 goon oration. PC covenants and agrees that it shall provide Manager with all information reasonably required by Manager to perform its obligations "hereunder to the extent reasonably available to provided, however, that Manager shall have given notice sull?ioient with respect to the particularities of tho required by Manager to enable PC to provide such inlormation in a commercially territorial-ole manner. PC covenants that it shall grant Managor such authority as may be necessary or dosirablo, in the reasonable judgment of Manager, to ensure Manager?s ability to perform its obligations hereunder. 6.3 Qomnligngg With haw. PC represents and warrants that the conduct of its business, and the practice of medicine by physicians and health care providers, has been and will continue to be conducted in material oomplianco with any and all applicable provisions of fodcral and state laws and regulations and in a professional manner during tho term of this ~11" and oach noticwal tct?rn. PC further rcptosants and wanants that all health cara providora practicing pursuant to contracts with PC ahall maintain and continue to maintain such professional standorda and skills as not in accordance with the standards of ethics and practice for such specialty prevailing in the geographic service: area of PC. 6.4 To the extent not oovorcd by insurance maintained by any Manager Party, PC shall indemnify. defend and hold homilcaa Manager Parties for, liom and against any and all Losses, softened by Manager Parties to tho arising out of any acts of gross negligence or willful misconduct of PC Portico or any breach or omission, performance or by PC Parties under or of any icon of this Agreement. In addition, PC shall indemnify Manager Ponies from and against any and all Losses incurred by Manager Parties in 6.5 Charter Doom; PC covenants and agrees that it shall not amend its Articles of incorporation andfot Bylaws or enter into any agreement that would limit its ability to provide Treatment Scrvicos at the Facility. 6.6 loam. PC, at expanse, shall procure and maintain and/ct ensure: that each PC Physician procurca and maintains, professional liability insurance, covering any Treatment Services or other. professional activities perfomtod for PC whether at the Facility or another location of not less than One Million Dollars ($1,000,000) per occurrence and. Three Million Dollars: ($3,000,000) in the annual aggregate. With to such insurance, PC shall, to the extent reasonably permitted by I505 insurer, name Manager as an additional insured on its liability policies, and Manager shall be responsible for the cost therefor. 7.1 Madical?ogoigg All medical records and docnmcots, including reports for patients of PC Physicians, shall be the property ofPC. PC agrees to permit Manager and its duly authorized representatives to inspect, audit, use and duplicate any data or records necessary, to Manager?s reasonable determination, for Manager to perform its duties under this or assess the quality and effectiveness of the Treatment Services; and (ii) comply with any requests for information following the tennination of this Agreement, to the. extent permitted by applicable law. PC and Manager shall each comply with all applicable federal, state, and local laws and regulations pertaining to the confidentiality of said medical records, including, but not limited to, tho Health Insurance Portability and Accountability Act of 1996 and the regulations ptomulgatcd by the United States Department of Health and Human Services To this and, the parties agree to abide by the Business Associate Agreement attached hereto as Exhibit '7 .1. 7.2 ?oiocaa?acotco. All businaas records, papers and documents of PC shall remain tho property of PC (cxocpt for business records, imports and documents of Manager that are designated by Manager as such) and shall be available for inspection and copying by Manager, whether during the tortn hereof or thereafter, during regular business hours in -12.. offices. Upon the teoninaticn of this Agrocmont, Mouogcr shall return to PC in an orderly manner all business records, popcorn and documents of PC and any copies thereof, then in the possession of Manager. Notwithstanding the foregoing sentence, PC agrees that Manager may retain a copy of all such recorde, papers and documents for regulatory rcporting, archival purposes and detcrmination of rights cud/or resolution of disputes under this Agreement. 8 8.1 WLContractot?. In the of the work, duties and obligations described hereunder, it is mutually understood and that each party is at all times acting and peifcrming as an independent contractor with respect to the other and that no relationship of partnership, joint vcnture, or employment or other similar relationship is created by this Agreement. Neither party, nor any other person performing services for or on behalf of either party pursuant to this Agreement or otherwise, shall have any right or claim against the other party under this for social security benefits, workers? compensation bene?ts, disability benefits, unemployment insurance bene?ts, health bene?ts, vacation pay, sick leave, or any other employee bene?ts of any kind. 8.2 Condom o: Mgdicol Pm. clog. PC and. Manager hereby expressly acknowledge and agree that Manager's duties, responsibilities and functions hereunder shall be administrative and managerial in nature. only, and that notwithstanding any othcr provision ofthis Agreement to the contrary, Manager shall engage in no activity hereunder in any state where such activity would constitute the corporate practice of medicine (as dollned by applicable laws of such state) or any other violation of low, The parties understand and ogrcc that PC and PC Physicians have the sole responsibility for the coordination and provision ofall medical services and Manager shall not interfere in any way with the exercise of the professional medical of PC or PC Physicians in connection with their practice ot?mcclicinc. All PC policies and. procedures relating to the governance of PC Physicians and other licensed health care professionals who will be employed by or work under the direction of, or a contract with, PC shall be adopted from time to timc in the sole discretion of PC, its shareholders and Board of Dircctors, as applicable, subject however only to prior consultation with Manager (which shall not ho able to approve or disapprove such policies). Such policies may include practice standards, peer review and corrective action, disciplinary matters, on~call schedules, referral physician panel and services, clinical proceduros, utilization management and quality management procedures, credentialing, appointment and replacement (>ch medical directors, patient corc decisions, physician and other licensed health care professional compensation and incentives, physician training, continuing cducation, devclop'mcnt and supervision and shareholder eligibility. Should any function ossignod to Manager be construed to be within the practice of medicine; such that, if perfonncd by Manager, it would violate applicable prohibitions on the corporate practice of medicine, such function theroaftcr shall be assigned to and become the responsibility of PC or PC Physicians and any Such prior activities which were undertaken by Manager shall be considered to have been undertaken by PC or such PC Physicians. 9 1315. ll IQES. All notices required to be givon hit-rounder shall be in writing and given hereunder, as elected by "the party giving notice. as follows: by personal delivery, (ii) sent by overnight ,13. oottrier with confirmation of receipts or diSpatohed by certi?ed or regietered mail, return receipt requested, postage prepaid, addressed to the parties as follows: if to Manager: TMSC Services, LLC 51 17 Renaissance Avenue Unit San Diego, California 92122 Attention: President It? to PC: - Kevin T. Murphy, A Professional Corporation We The Medical Center 14680 Eneenrlitio lien Diego. CA 92127 Attention: President Notice shall be deemed given (0 on the date of receipt if delivered personally; (ii) on the business day following delivery of such notice to the overnight courier; or three (3) business days after deposit in the mail in accordance with the tbregoing. Any party may change the address to which to send notices by notifying the other party of such change of address in writing in with the foregoing. 10 It: IRE PARTX Except with respect to the indemni?cation obligations of the parties in favor of either the PC Pei-ties or the Manager Parties, this Agreement is expressly entered into only by and between the parties signatory hereto and. is only for their bene?t. The parties hereby expressly agree that there is no intent by either party to create or establish third party laeneiiciary status rights or their equivalent in any other referenced individual, sub-contractors. or third party and no third party shall have any right to enforce any right or enjoy any benefit created or established under this Agreement. 11 BWMWE The parties acknowledge that each has certain ?Proprietary Information? (as de?ned below) that is valuable and con?dential, which provides a competitive advantage and which is not: possessed by other persons. Each party desires as part of this Agreement to have the Opportunity for the other party to use such Proprietary Information during the term of this Agreement to perform their respective obligations hereunder. In addition to the other consideration given hereunder,- the parties acknowledge that, but for the provisions of this ?eotignil, neither would enter into this Agreement since it would endanger its competitive advantage or the value of its 'l?roprietaty Information. 11.1 Therefore, each party agrees with the other party that during the term of this Agreement, and for a period of four (4) years thereafter, it will not use, copy, reveal, report, publish, or otherwise disclone or make available to any person, concern or other entity, either directly or indirectly, any Proprietary Information of the other, except as may be necessary for the proper of such party?s duties and responsibilities hereunder or under another agreement between the parties or their af?liates or ?with the prior written consent of the other party, or as required by law or, in the case of Manager, to any potential investors, strategic .14.. - mum? .u mm. Ann?n-ImpA I-o-o?uwm' . - a. mow-4. . . u. .- .. .. -- ?.mmlm. . .. -. . . partners, affiliates, members or of or to Manager, In any such case, prior to any disclosure or use, any such person, conccru or othor entity shall bc required to execute a confidontiality opt-cement in form and substance satisfactory to tho party whorls Proprietary Information is to be disclosed. 1.1.2 Each party acknowledges that its violation of the provisions of this Section ll would cause the other party irreparable harm, and, without limiting the other party?s remedies for such breach, each party may be enjoined at the- insistence of the other party. Each party agrees that upon termination of this Agreement for any reason, absent tho prior written consent of the party, it shall have no right to and shall ccarc all use of the other party?s Proprietary Information, and shall return all Proprietary Information (and all embodiments thereof) of the other party in its possession to the other party. Each party further agrees never to use tho other party?s Proprietary Information in any manner that might reasonably be construed by such other party as adverse or harmful to the party or inconsistent with the terms of this Agreement. This ?ction 1 1, shall survive the termination of this Agreement for any reason. 11.3 As used in this Agreement, ?Proprietary In?rmatlon" motors any information in whatever form or fomtat (including any formula, pattern, compilation, dcvicc, method, technique or process) that has economic value from not being generally known to the public or to other persons and includes information about a party, its patients, customers, suppliers, joint venturers, liccnsors, liconscc-s, distributors, and other persons or entities with whom such party does business. Proprietary further includes, without limitation, information relating to tho busincss of such party, internal business procedures, processes, techniques, methods, ideas, discoverics, development-s, records, research and data and programs, "trade secrets, computer programs and protocols, software, development tools and architectures, patient or customer lists and rclatod information, contract terms, contracting policies, sales data, sales programs, computer programs, fee schedules, budgets, business plans, ?nancial information and data, policies and procedures, information and. records relating to providers and provider relationships, information and records relating to cur-011cc and paticnt claims and medical history, information and records relating to third party payers and payor relationships, personnel and payroll information, and any other such infonnotion which is deemed con?dential and/or proprietary. Proprietary Information shall not include (1) information. independently developed without the use of Proprietary Information; (ii) information which is or hocomcs publicly known through no breach of the terms of this and information. which a party lawfully acquires from a person not subject to obligations of confidentiality. 11.4 The parties acknowledge that all medical records are not Proprietary Information, but shall remain confidential information at all times in accordance with the provisions of applicable law, Monagcr acknowledges that PC will receive certain reports and othcr ?nancial and operating information from Manager, and that such information, while Proprietary information as to third parties, is not Proprietary Information as between PC and Manager. 12 sot/ran Ann, 111. Any terms or provisions of this Agreement that shall prove to be invalid, Void or illegal shall in no way affect, impair, or invalidate any other term or provision heroin and such remaining terms and provisions shall remain in full Forco and effect. All such terms or -15. .- .m kWh-an? . -n 9.. - provisions which are determined by a court of competent jurisdiction or other disputc rosolniicn proceeding to be invalid, void or illegal shall be construed and limited so as to allow the maximum effect permissible by law. 13 The par-tics shall make a good faith effort to rcsolvc any claim or dispute arising under this Agrcemcnt, utilizing modintion; provided, however, there shall be no need to ?rst mediate any dispute with those matters for which tho panics have reserved their rights to seek cqoitablc relief. Ii? mediation ciiorts are not successful, the. parties shall resolve all disputes by binding arbitration before the America: Arbitration Association sitting in Los Angclos, California. Any injunctive relief sought by any party to enforce all or any of this Agreement may be obtained in any court having jurisdiction or may be granted by the arbitrator. The arbitrator shall render a decision in accordance with the substantivc laws of the Stair: of California. No trial do nova or appeal shall be available for any award, claim or dispute submitted and confirmed by a court of jurisdiction, except as to matters of law. The parties shall have the right to discovery in accordance with California Codc of Civil Procedure Section 1283.05. 14 In the event that either party to this Agreement shall bring any action to enforce any icon, covenant, or condition of this: Agreement; the prevailing party in such action shall be entitled to recover all costs and cxponscc, including reasonable foes and costs and the costs of any resolution incurred by such party in connection with such action. This Section 14 will omit/c the termination of this Agreement for any reason. 15 Tho validity, and construction of this shall be governed by the laws of the Stair: of California. disrcgar .ing any conflict of laws provisionc which may require the application of the law of another State. 16 M. Except as set forth in this Sgotioni?, neither party shall have tho right to assign this without the prior written consent of the: other. Managcr shall have the right, without the prior consent of PC, to assign this Agreement in connection with the direct or indirect solo. lease, exchange or o'tl'tcr transfer of more than. ?fty (5 0? 0) of tho assets of Manager to any other person or entity; (ii) the sale or incuoncc of any equity in or any clans or series of capital stock or scotcitics exchangeable, convertible or exercisable for shares of capital stock of Manager in a transaction or scricc of trancnotions in which the purchaser or purchasers own in the aggrogctc at least ?fty porcent of the equity or capital stock (on a fully converted, exchanged or exercised basis) of Manager after such transaction or series of transactions; the merger or consolidation of Manager with mother entity or entities; or (iv) the rcorgonizction of .15. . ?7 AND Subject to the provisions of ?egiion 16 hereof, the terms, covenants and conditions contained herein shell be binding upon and inure to the bene?t of the successors and assigns of the parties hereto. 18 ng 32513,. The waiver by either party to this Agreement of any one or more defaults, if any, on the part of the other, ohall not be construed to operate as a waiver of any other or future defaults under the some or different teams, conditions or covenants contained in this Agreement. 19 gm ION A1511) magmas. 20 ENTIRE AGREEMENT: AMENDMENI. This Agreement and any attachments, exhibits and schedules hereto state the entire contract between the parties in respect to the subject matter of this Agreement and supersedes any oral. or mitten proposals,, statements, discussions, negotiations or other agreements. prior to or contemporaneous with this Agreement. The parties acknowledge that they have not been induced to enter into this Agreement by any oral or written representations or statements not expressly contained in this Agreement. This Agreement may be modified only by mutual agreement of the parties; provided, however, that before any modi?cation shall ?be Operative or valid, it shall be reduced to writing and signed by both parties. All rights of a party are cumulative and not exclusive, unless otherwise explicitly stated herein? 21 AGREEMENT COLLE CTIVELY PREPARED PARTIES. Each party to this Agreement has participated in the preparation of this Agreement, has read and understands this Agreement, and has been represented by counsel of its own choice in the negotiation and preparation of this Agreement. Each party represents that this Agreement is executed voluntarily and should not be construed against any party hereto solely because it PC hereby appoints Manager as its true and lawful ottomey~i.n~faot, for it and in its name, place and stead, and for its use and bene?t, to negotiate, prepare, execute, deliver, report and ?le any and all documents, instruments, certi?cates, contracts and writings which Manager may sign relating to the non-medical management, and the business and nonmedioal athninistrative affairs of PC pursuant to the terms of this Agreement, including, but not limited to, service agreements, provider and payor contracts, debt iimtrtunents, certi?cates, statements, ?nancing statements, regulatory ?lings and ropmts, applications, settlement agreements and releaoes, employment and engagement agreements, assignments of contracts. and. any and all amendment-s, modi?cations or -17. wwn? .. . - supplements theretm and to take: any and all actions and execute. all other documents which may be necessary anclior desiirable on behalf of PC, in connecticrn with or related to the fewgoing and the perfoimance ofthe services contemplated therein. PC thither gives and grants to Manager as its full power and authority (limited only by applicable laws) to do and perform every act necessary and preper to be done in the exercise of any of the foregoing powers, and heraby rati?es; and confirms all that Manager lawfully shall do or cause to be done by virtue hereof. PC agrees from time to time to execute such documents as are necessary to evidence to third parties this power of attorney. In no event. shall the use of this power of attorney by Manager be deemed to constitute the practice of medicine by Manager in any jurisdiction which prohibits the corporate practice of medicine, it being the intention of the parties that such activity in question shall be undemakbn 391er by and for PC and that Manager in such event act 501er in a ministerial and non~medlcal capacity. 23 1332393713 This Agraement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall tagethetr constitute one and the: same agreement binding all of the parties hereto? notwithstanding all of the patties are not signatory to the original or the same counterpart. Signatures sent by facsimile or electronic transmission shall be deemed to be originals for all pumoses of this; Agreement. [?ignatum Page Follows} .13. IN WITNESS WHEREOF, the parties hereto have executed this Agreement on that day and year set forth hereinabove. TMSC Services, LLC, a Delaware limited liability company, By: MM L929 MicEtEl McDermott, President Kevin T. Murphy, M.D., A California Professional Corporation d/b/a The Medical Center By: Mam Kevin T. Murphy, Pstiderit) EXHIBIT 7.1 Assomh?rtt AGREEMENT This HIPAA Business Associate Agreement Agreement?), effective as of November 2, 2015 is made by and between Kevin ?12 Murphy, MD, A Professional Corporation (More. The Medical Emmi?), end TMSC Services, LLC a Delaware limited liability company (?Business measure?), for. the purpose ofcornpliunoc with the Health Insurance Portability and Accountability Act and its implementing administrative simpli?cation regulations (45 CPR. 16081-64) and Subtitle of the Health Information Technology for Economic and Clinical Health Act This HIPAA Agreement hereby moods and is incorporated into any underlying agreement between Covered Entity and Business Associate; to the extent that the provisions of this HIPAA Agreement con?ict with those of an underlying agreement, the provisions of this HIPAA Agreement shall control. Terms used but not otherwise de?ned herein shall have the same meaning as those terms defined in 45 CPR. 160.103 and 164.501. If; in the provision of services to Covered Entity, Business Associate representatives may receive or have access to Protected Health Infommticn that is created and/or maintained by Covered Entity, Business Associate shall be bound to the following terms: 1. Biol-mess Associate may use and disclose PHI in the course of perfomiing services for or on behalf of Covered Entity (including data aggregation services) or as required or permitted by law, regulation, regulatory agency or by any accrediting body to whom Covered Entity or Business Associate may be required to disclose such PHI, but shall not otherwise use or disclose such Business Associate may also use PHI for the proper management and adu?nistratioc or to carry out the legal responsibilities of Business Associate. Business Associate may disclose PHI to a third potty for Business Associate?s proper management and administration, provided that the disclosure is required by law or Business Associate obtains. reasonable assurances from the. third party that the third party will protect the confidentiality of the PHI, (it) use or further disclose the PHI as required by law or for the purpose for which the Pill was disclosed to the third party and notify Covered Entity of any instances of which the third party is aware that the con?dentiality of the PHI has been breached. Business Associate may also use PHI to create deddenti?ed health information in accordance with HIPAA. 2. Obligatighg. Business Associate shell: a. to the extent required by the ?minimum necessary" requirements of HIPAA, only request, use and disclose the minimum necessary amount of PHI necessary to accomplish the purpose of the request, use or disclosure. b. ensure that its agents and subcontractors to whom it may provide Pill agree to the some terms and conditions through a written contractual agreement that complies with 45 C.F.R. 164.314; c. implement appropriate and reasonable satcguards to prevail: use or disclosure of PHI other than as permittcd herein, including those safeguards required pursuant to 45 164.308, 164.310, 1644312, 1- 64.3 l4, and 164.316 in the same manner that those: requirements; apply to Covered Entity pursuant to 45 C.F.R. 164.504, and rcport to Covered Entity any usc or disclosure of PHI not provided for by this HIPAA Agreement; d. make available to the Secretary of Health and Human Services, Business Associato?s practices, books and records relating to the use or disclosure of PHI for purposcs of determining Covered Entity?s compliance: with subject to any attorneywliont or other privileges; e. report to "the Covered Entity. and mitigate to the extent practicable, any harmful ct?fcct that is known to ?Business Associate of uses or disclosures of PHI of which Business Associate: bccomcs aware that do not comply with the terms horcin, including, breaches of unsecured PHI as required by 45 ORR. 164.410, and any Security Incident of which it becomes aware; provided, however that any attempted, unsuccessful Security Incident of which Business Associates becomes aware will be reported only upon Covered Entity?s reasonable request; to the extent that Covered Entity and Business Associatc agree in writing that Busincss Associate shall maintain PHI as part of a Designated Record Set, upon Covered Entity?s rogue-st, provide access and make. amendments to such PHI, in ordor to most the under and if an individual requests an electronic: copy of the information from Entity, Business Associate must provide Covered Entity with the information requested in tho electronic form and format by the individual anti/or Coycrod Entity if it is readily producibls in such form and format; or if not, in a readable electronic form and format as requested by Covered Entity; and if Busincss Associate receives a request for amendment to PHI directly from an individual, Business Associate shall notify Covered Entity upon receipt of such request; 3. document such uscs and disclosures of PHI anal, upon Covered Entity's request, provide such information as would be required for Entity to account for disclosurcs of PHI as required under h. when Business Associate: ceases to p-cri?orm services for or on behalf of Covered Entity, Business Associate will all PHI or if such destruction of PHI is not feasible. continue to abide by the room set forth herein with to such and i. following a discovery of a breach of Unsccurcd Protoctcd Health Infonnaticn, as de?ned in HITECH. notify Covered Entity ofsuch breach within sixty (60) days of tho discovery of the breach. 3. j?crm ination. The term of this HIPAA Agreement shall be effective as of the date set forth above and shall terminate when Business Associate.- ccascs to pcri?omi services for Covered Entity, except as provided in gcgtipp 21' g) above. Covered Entity may terminate this .31? HIPAA if Business Associate: fails to cute or take substantial steps to cure a material bit-tacit of thit; Agreemnnt within thirty (30) clays after receiving written notice of such material Winch from Covered Entity. 4. ?ght-mm; Thin HIPAA Agreement the entire: agreement batman the parties. This HIPAA Agreement may be amended only in writing signed by Covered Entity and Busincss Associate. The parties agree to take such action to amend this HIPAA. Agreement as is necessary to comply with the requirements of HIPAA and HITECPL and any ambiguity in this i??iiPAA Agrecment will ht: interpreted to permit compliance with and HITECH. This HIPAA Agreement and the rights and obligations of the parties hereunder shall in all respects be gnvemed by, and construed in accordance: with, the laws of the State of Calithrnia, including all matters of construction, validity and performance. This HIPAA Agreement may he executed in multiple counterparts, all of which together will constitute one agreement, even though all parties do not Sign the same counterpart. The parties have not created and do not intend to create by this HIPAA. Agreement any third party rights, including but not limited to, third party rights for Entity-?3 patients. PAGE .22.. IN WITNESS WHEREOF, the parties hereto have duly executed this HIPAA Agreement, as of the date ?rst set forth above. TMSC SERVICES, LLC Wyn/?19 Michael McDermott, President KEVIN T. MURPHY, M.D., A PROFESSIONAL CORPORATION, THE MEDICAL CENTER Kevin T. Murbhy. ??ij