License Agreement

ResMed Data Products Services Agreement

PLEASE READ THIS RESMED DATA PRODUCTS SERVICES AGREEMENT ("AGREEMENT") CAREFULLY BEFORE USING RESMED SYSTEMS, SERVICES OR ONLINE COMMUNICATION MODULES OR CARDS ("RESMED DATA PRODUCTS") FOR CUSTOMERS. BY USING RESMED DATA PRODUCTS YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT USE RESMED DATA PRODUCTS. IN THE EVENT YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, PLEASE CONTACT RESMED CUSTOMER SERVICE AT 1 (800) 424-0737 (US) OR 1 (800) 658 189 (ANZ) TO DISCUSS THE RETURN AND/OR DISABLING OF YOUR RESMED DATA PRODUCTS. ANY RESMED DATA PRODUCT RETURNS MUST BE SUBMITTED IN ACCORDANCE WITH RESMED'S GENERAL TERMS AND CONDITIONS OF SALE AS NOTED ON THE BACK OF YOUR INVOICE. RESTOCKING FEES MAY APPLY.

Definitions

In this Agreement, the words "we", "us" or "our" mean ResMed Corp., its wholly-owned subsidiaries, its affiliates and its successors or assigns (collectively, "ResMed"). When we use the words "you" or "your" or "Customer" we mean the customer ("Customer") who uses, accesses, purchases, or rents ResMed Data Products in accordance with this Agreement and/or a separate services agreement, including any person authorized by Customer to access or receive the ResMed Data Products (each a "User"). "Services" includes but is not limited to health related and other information, communication, compliance, cloud-based data storage, retrieval, patient management system and online support program provided to Customer by ResMed through one or more ResMed Data Product websites. The Services may be modified from time to time to include additional data services, beyond those Services offered today; those additional services will be governed by this Agreement. "System" includes ResMed flow generators, and any other hardware and software provided by ResMed in connection with the Services. The "Effective Date" will be the date on which you first agree to this Agreement.

Services

If you accept this Agreement, then ResMed, in consideration of the Service fees paid by you, grants a limited, non-exclusive, non-transferable, non-sublicenseable, revocable license to Customer and its Users to access and use the ResMed Data Products websites in accordance with the terms hereof.

Term

This Agreement will commence on the Effective Date and will remain in effect until terminated by either party.

Fees and Payment

Customer agrees to pay for the applicable Service fee(s) for ResMed Data Products.

Patient Information

The ResMed Data Products use algorithms and identifiers (e.g., serial numbers) to link patient demographics to patient data. You are responsible for the accuracy and consistency of all identifiers and patient demographic information (e.g., patient name, date of birth, etc.) whether entered by you or provided by another User. The accuracy and consistency of this information will impact how the System matches patients with patient data. You are responsible for all clinical decisions based on patient data reported on the ResMed Data Products. The ResMed Data Products are not intended to, and do not provide, medical advice.

Patient data are protected by laws and regulations governing the privacy and security of health information. Applicable laws and regulations will depend on your local jurisdiction. For United States Customers, we will provide ResMed Data Products in compliance with the HIPAA Business Associate Addendum (attached hereto and incorporated herein as Exhibit A).

Equipment and Software Requirements

You will supply and maintain a personal computer with access to the Internet in order to access the ResMed Data Products. Specifically, you agree (1) to utilize appropriate browser software per ResMed’s minimum system requirements to access ResMed Data Products; (2) supply and maintain a modem, or similar equipment when applicable, to access the ResMed Data Products; (3) to receive information by electronic transmission of a visual display of text; (4) that 128-bit encryption is required for the use of the ResMed Data Products; and (5) that our liability for viruses, worms, trojan horses, or other similar harmful components that may enter your computer system by downloading information, software, or other materials from using the ResMed Data Products will be subject to the limitations set forth in the Limitation of Liability section below and to the other provisions of this Agreement.

Access

Customer will be required to select or will be assigned a First User Username and Password. The First User may add, edit and inactivate additional User accounts, passwords and access capabilities (collectively, "Access Codes"). Customer is responsible for all User accounts and Access Codes added, edited or inactivated through the use of the First User Username for those accounts. You acknowledge and agree that Access Codes are required to access the ResMed Data Products. You agree to keep all Access Codes confidential to prevent unauthorized access and to prevent unauthorized use of the ResMed Data Products.

You also agree to protect the security of Access Codes and other means of identification for access to and use of the ResMed Data Products. We reserve the right to disable your access to the Services and/or System, if we reasonably believe your Access Codes have, or may have been, obtained in an illegal or unauthorized manner or are being used, or may be used, by an unauthorized person(s).

By accessing patient information through the Services, you represent and warrant that you have obtained the right and authorization to do so from patients, either by (1) receiving a written and signed authorization from the patient; (2) receiving the System SD card containing patient information from or on behalf of the patient; or (3) receiving the patient’s System serial number from the patient. For those Services that require outbound contacts by phone, texts or email, you represent and warrant to us that you have obtained and will maintain all permissions, authorizations and opt-in consents from each patient, including any written, signed consents, as may be required under Federal, State or local laws and regulations applicable to those outbound contact activities.

Customer and User Responsibility

Customer is responsible for all of the equipment, cellular coverage, internet access and software required for Users authorized by Customer to access and/or use the ResMed Data Products. If Customer permits other persons or other entities to use the ResMed Data Products, Customer is responsible for any Service fees incurred by such third persons on behalf of Customer. ResMed reserves the right to terminate your access to ResMed Data Products if not used for six (6) months.

You will notify us immediately if you believe your account and/or your Access Code(s) have been accessed, taken or used without your permission, or if there is a suspected or actual violation of the security of the ResMed Data Products. In addition, you will inform us immediately in writing of the need to deactivate an Access Code due to potential or actual security concerns or for any other reason.

You agree to report to ResMed immediately the discovery of any type of discrepancy, anomaly or error detected in information obtained from or delivered to ResMed Data Products. You will also immediately report to ResMed the discovery of any virus or corruption on the ResMed Data Products or on your own equipment used to connect to or otherwise access the ResMed Data Products. You agree that it is your responsibility to comply with all applicable laws and to ensure adequate security of your equipment and related peripherals. As stated in the Access section above, you are responsible for obtaining and maintaining all necessary opt-in consents, permissions or authorizations required under Federal, State or local laws and regulations in connection with the transmission, storage, retrieval, access, use and/or disclosure of patient information through the ResMed Data Products.

Representation and Warranty Regarding Home Use

You understand that certain ResMed Data Products are intended solely for normal home use and are not cleared by the U.S. Federal Food and Drug Administration in the United States, or by the applicable regulatory authority in your local jurisdiction, for use in acute healthcare settings or in other locations where the wireless transmission of information may interfere with the operation of essential equipment, such as life support, nuclear facilities, or aircraft navigation or communication systems, in which interference could lead to death, personal injury or severe physical or environmental damage. You represent and warrant that neither you nor your Users or patients will use the ResMed Data Products in such a location and that you will provide express instructions to your Users and patients regarding the appropriate location for use.

You shall not offer the ResMed Data Products outside the United States or Canada without ResMed’s prior written consent.

ResMed Responsibility

We, or a third party acting as our agent, are responsible for the operation and maintenance of hardware and software necessary to deliver the ResMed Data Products. However, neither we, nor our agent(s) will be liable:

If you have not properly followed ResMed Data Product instructions on how to retrieve and view data;

If your internet access, equipment and/or the software were not working properly and this problem was or should have been apparent to you when you attempted to access the ResMed Data Products;

If circumstances beyond our or our agent's control prevent display of information or the making of a data retrieval, despite precautions taken. Such circumstances include but are not limited to computer failure, telecommunication outages, postal strikes and other labor unrest, delays caused by payees, fires, floods, and other natural disasters.

Maintenance

We may on a regular basis perform maintenance on our ResMed Data Products, which may result in interrupted service or errors in the ResMed Data Products. We also may need to change the scope of our Services from time to time. We will attempt to provide prior notice of such interruptions and changes but cannot guarantee that such notice will be provided.

Title and Archival of Data

Customer and/or its Users will have access to any data created by Customer and its Users using the ResMed Data Products so long as Customer remains an active ResMed customer. Specifically, if you discontinue purchases from ResMed, breach any of your obligations to ResMed, or if any of your accounts are terminated for any reason, then your access to ResMed Data Products may be modified, suspended, reassigned, or terminated by ResMed at its sole and absolute discretion. To the extent necessary, you grant ResMed permission to use such data for the purposes of operating and supporting the ResMed Data Products and for the purposes of de-identifying the data in accordance with applicable law. Furthermore, you agree that ResMed may enable System tracking technology at its sole and unilateral discretion, including, for example, for inventory control and/or channel verification purposes. You agree that the ResMed Data Products are not a permanent medical record archive or storage system. You acknowledge and agree that it is your responsibility to download or otherwise retain any data created in using the System and to store such data separately within your own records. In addition, you are solely responsible for archiving the data or otherwise complying with Customer and/or User's medical record policies and procedures. ResMed does not provide any services related to archival of data. In the event that ResMed does offer archiving functionality in the future, this Agreement will be amended to address archival processes, payment, and responsibility.

Limited Warranty

ResMed warrants that, to ResMed's best knowledge, your use of the ResMed Data Products will not infringe the intellectual property rights of any third party.

Warranty Disclaimer

ResMed does not and will not provide medical advice or service to you or your patients. Content available through the ResMed Data Products is solely for informational and educational purposes. Neither the content nor the patient reports are to be used as a substitute for professional judgment of healthcare providers in diagnosing and treating patients.

EXCEPT AS PROVIDED IN THIS AGREEMENT, THE RESMED DATA PRODUCTS ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AND THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE RESMED DATA PRODUCTS IS WITH YOU. SOME JURISDICTIONS LIMIT OR DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, THEREFORE THE ABOVE EXCLUSION OF IMPLIED WARRANTIES MAY NOT APPLY TO YOU.

ResMed does not warrant that the functions contained in the ResMed Data Products will meet your requirements or that its operation will be uninterrupted or error free or compatible with the other software or hardware of your systems. RESMED'S SOLE OBLIGATION OR LIABILITY UNDER THIS SECTION AND THE FOREGOING LIMITED WARRANTY IS THE REPAIR OR REPLACEMENT OF THE APPLICABLE RESMED DATA PRODUCTS, OR AT RESMED'S DISCRETION, REFUND OF SERVICE FEES PAID BY YOU FOR APPLICABLE RESMED DATA PRODUCTS IN THE TWELVE MONTHS PRECEDING SUCH EVENT.

Limitation of Liability

IN NO EVENT WILL RESMED BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL OR INDIRECT DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY LOSS OF DATA, LOSS OF PROFITS OR LOST SAVINGS, ARISING OUT OF THIS AGREEMENT OR CONNECTED IN ANY WAY WITH THE USE, MISUSE OR INABILITY TO USE THE RESMED DATA PRODUCTS, EVEN IF RESMED HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY THIRD PARTY. SHOULD WE HAVE ANY LIABILITY TO YOU OR ANY THIRD PARTY FOR ANY DIRECT LOSS, HARM OR DAMAGE, (EXCEPT FOR INSURED CLAIMS AND THE PARTIES' RESPECTIVE EXPRESS INDEMNITY OBLIGATIONS), THE TOTAL LIABILITY OF RESMED FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT OR OTHERWISE ) WILL NOT EXCEED THE LESSER OF THE AGGREGATE AMOUNT OF THE SERVICE FEES YOU HAVE PAID TO US FOR THE APPLICABLE RESMED DATA PRODUCTS DURING THE TWELVE MONTHS IMMEDIATELY PRECEDING THE DAY THE ACT OR OMISSION OCCURRED THAT GAVE RISE TO THE CLAIM OR THREE THOUSAND (USD$3,000.00) UNITED STATES DOLLARS. YOU UNDERSTAND AND ACKNOWLEDGE THAT ABSENT YOUR AGREEMENT TO THIS LIMITATION OF LIABILITY, WE WOULD NOT PROVIDE YOU ACCESS TO THE RESMED DATA PRODUCTS. THE LIMITATIONS PROVIDED IN THIS SECTION WILL APPLY EVEN IF ANY OTHER REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.

Your exclusive remedy in the event of the complete and unrecoverable failure of the ResMed Data Products to operate or perform is limited to, at ResMed's discretion, the reasonable cost of replacing the lost information, providing available back-up information, or refunding the Service fees you have paid to ResMed for the applicable ResMed Data Products during the twelve (12) months immediately preceding the date of such failure.

Proprietary and Confidential Information

You acknowledge and agree that the ResMed Data Products are the proprietary property of ResMed. You agree that the ResMed Data Products embody substantial creative rights, confidential and proprietary information, copyrights, trademarks and trade secrets, all of which will remain the exclusive property of ResMed. You further agree that you and your employees, agents and representatives will not copy, reproduce, modify, reverse engineer or decompile any portion of the ResMed Data Products, and you and your employees, agents and representatives will use the ResMed Data Products as provided in this Agreement. Except as otherwise disclosed herein ResMed or licensed source owns all rights, title, and interest in and to all copyright, trademark, service mark, patent, trade secret or other intellectual property and proprietary rights worldwide in and to the ResMed Data Products.

Indemnity

You, at your own expense, will indemnify and hold harmless ResMed and its assignees, and their directors, officers, employees, agents and representatives, and defend any and all actions brought against same with respect to any claim, demand, cause of action, debt or liability, including reasonable attorneys' fees, experts' fees, and court costs, to the extent that it arises from or relates to the acts or omissions of you, your Users, directors, officers, employees, agents, or representatives, including but not limited to the use of the ResMed Data Products or any patient data stored or transmitted using the ResMed Data Products; or your failure or alleged failure to obtain any or all permissions, authorizations and "opt-in" consents from each patient required under applicable Federal, State or local laws and regulations.

Relationship of the Parties

Nothing in this Agreement will be construed to constitute either party as the partner, employee, or agent of the other, except that if ResMed contacts any patient based on the consent you obtained from the patient, ResMed will be considered your agent authorized to contact the patient within the scope of consent provided by the patient. Neither party has any authority to bind the other in any respect. Each party will remain an independent contractor, responsible only for its own actions. Each party will conduct all of its business in its own name and in such manner as such party may see fit, at its own expense.

Governing Law

The terms and conditions of this Agreement will be governed by and construed in accordance with the laws of the State of California, without regard or giving effect to its conflict of laws principles.

Dispute Resolution

All controversies and claims arising under or relating to this Agreement are to be resolved by arbitration under the Federal Arbitration Act in accordance with the then-current rules of the American Health Lawyers Association, if you are a United States Customer, or of the International Chamber of Commerce, if you are a non-United States Customer, before one single independent arbitrator selected in accordance with those rules. The arbitration is to be conducted in the County of San Diego, California. The arbitrator is to apply California law, without regard to its conflict of laws principles. All proceedings shall be conducted in English. Each party shall submit to any court of competent jurisdiction for purposes of enforcing any award, order or judgment. Any award, order or judgment pursuant to the arbitration is final and may be entered and enforced in any court of competent jurisdiction. Each party shall bear its own costs, expenses and attorneys' fees (and all related costs and expenses) incurred in connection with any proceeding arising from or related to any transaction contemplated by this Agreement, and in connection with enforcing any judgment or order thereby obtained. You and we further agree to waive any right to pursue a dispute by asserting a disputed claim in a representative capacity, or participating in a class action with respect to ResMed Data Products.

Notices

We may give notices or other communications required under this Agreement by posting or providing links on other communications through the sites providing access to ResMed Data Products.

Assignment

We may assign the rights and delegate the duties under this Agreement to a company affiliated with us or to any other party. You may not assign the rights or obligations of this Agreement without the prior written consent of ResMed.

Severability

It is the desire and intent of the parties that the provisions of this Agreement shall be enforced to the fullest extent permissible under the laws and public policies applied in each jurisdiction in which enforcement is sought. Accordingly, if any particular term or provision of this Agreement shall be adjudicated to be invalid or unenforceable, this Agreement shall not be deemed null and void, but such term or provision shall be deemed modified to the extent necessary to render such term or provision enforceable, and the rights and obligations of the parties shall be construed and enforced accordingly, preserving to the fullest permissible extent the intent and agreements of the parties set forth in this Agreement, such modification to apply only with respect to the operation of this Agreement in that particular jurisdiction in which such adjudication is made. If such term cannot be so modified, this Agreement shall be deemed amended to delete therefrom the portion thus adjudicated to be invalid or unenforceable, such deletion to apply only with respect to the operation of this Agreement in that particular jurisdiction in which such adjudication is made. In the event any provisions of this Agreement relating to the time period, scope of activities or areas of restrictions shall be declared by a court of competent jurisdiction to exceed the maximum time period, scope of activities or area such court deems reasonable and enforceable, the time period, scope of activities or areas of restrictions shall thereafter be deemed the maximum which such court deems reasonable and enforceable. All provisions not affected by any such invalidity shall remain in full force and effect to the fullest extent possible consistent with the intent of the parties.

Miscellaneous

A waiver of any term or provision of this Agreement at any time will not be deemed a waiver of the term or provision in the future. This Agreement represents the full and final agreement of the parties as to the subject matter and supersedes any prior written or oral agreement. In the event of any conflict between this Agreement and other agreements, the terms of this Agreement will control except in the limited instance of a separately negotiated services agreement or business associate agreement executed between Customer and ResMed. We reserve the right to modify this Agreement at any time and to impose any additional terms or conditions on your use of the ResMed Data Products. Such modifications including any additional terms and conditions will be incorporated into this Agreement and effective immediately. Your continued use of the ResMed Data Products will be deemed acceptance of any such modification(s).

THIS ADDENDUM IS APPLICABLE TO UNITED STATES CUSTOMERS ONLY

Exhibit A

HIPAA BUSINESS ASSOCIATE ADDENDUM

Customer and ResMed (defined above) have entered into a ResMed Data Services Agreement (the "Agreement"), under which ResMed may create, receive, maintain, or transmit protected health information ("PHI") of Customer’s patients. To the extent that Customer is a "Covered Entity," and a ResMed entity is a "Business Associate," as those terms are defined under the Health Insurance Portability and Accountability Act of 1996 ("HIPAA"), the HIPAA Omnibus Rule at 45 C.F.R. part 160 and 45 C.F.R. part 164 ("Omnibus Rule"), and the Health Information Technology for Economic and Clinical Health Act of 2009 (the "HITECH Act") and implementing regulations, then Customer and that ResMed entity agree as follows with respect to access to PHI through use of one or more ResMed Data Products or otherwise:

I. GENERAL PROVISIONS

Section 1. Effect. This HIPAA Business Associate Addendum ("Addendum") defines, supplements, modifies and amends the Agreement with respect to PHI. The terms and provisions of this Addendum will supersede any other conflicting or inconsistent terms and provisions in the Agreement with respect to PHI. Absent a different agreement, this Agreement shall govern ResMed’s obligations with respect to PHI from Customer.

Section 2. Definitions. All capitalized terms used herein without definition shall have the respective meanings assigned to such terms in 45 C.F.R. Parts 160 and 164 (the "HIPAA Regulations").

Section 3. Amendment. ResMed and Customer agree to amend this Addendum to the extent necessary to allow either ResMed or Customer to comply with the HIPAA Regulations promulgated or to be promulgated by the Secretary of the Department of Health and Human Services or other related regulations or statutes.

II. OBLIGATIONS OF RESMED

Section 1. Use and Disclosure of Protected Health Information. ResMed may use and disclose PHI only as required to satisfy its obligations under the Agreement, as permitted by Customer, as directed by the patient who is the subject of the PHI, or as Required by Law, but shall not otherwise use or disclose any PHI. The parties contemplate that ResMed may disclose PHI to subcontractors as part of the Services provided under the Agreement. ResMed shall not, and shall ensure that its directors, officers, employees, affiliates, subcontractors and agents do not, use or disclose PHI received from Customer in any manner that would constitute a violation of 45 C.F.R. Parts 160 and 164, Subparts A and E (the "Privacy Standards") if used by Customer. Except as otherwise limited in the Agreement or this Addendum, ResMed may use PHI (i) for ResMed’s proper management and administration, (ii) to carry out the legal responsibilities of ResMed, or (iii) to provide Data Aggregation services relating to the Health Care Operations of Customer if required under the Agreement. Except as otherwise limited in the Agreement or this Addendum, ResMed may disclose PHI (i) for the proper management and administration of ResMed, (ii) to carry out ResMed’s legal responsibilities if (a) the disclosure is Required by Law, or (b) ResMed obtains reasonable assurances from the person to whom the information is disclosed that it will remain confidential and used or further disclosed only as Required by Law or for the purpose for which it was disclosed to the person and the person notifies ResMed of any instances of which it is aware in which the confidentiality of the information has been breached. Further, ResMed may de-identify any and all PHI in accordance with 45 C.F.R. § 164.514(b) and use such de-identified data in any manner determined by ResMed. Notwithstanding any other provision contained in this Addendum, Customer expressly authorizes ResMed to (i) disclose PHI for the Treatment activities of a health care provider; (ii) disclose PHI to another covered entity or health care provider for the Payment activities of the entity that receives the PHI; and (iii) disclose PHI to another covered entity for Health Care Operations activities of the entity that receives the PHI, if each entity either has or had a relationship with the Individual who is the subject of the PHI being disclosed, the PHI pertains to such relationship, and the disclosure is for certain Health Care Operations of the covered entity in accordance with 45 C.F.R. § 164.506(c)(4)(i).

Section 2. Safeguards Against Misuse of Information. ResMed shall use appropriate safeguards to prevent the use or disclosure of PHI other than pursuant to the terms and conditions of this Addendum and comply with applicable provisions of 45 C.F.R. Part 164, Subpart C with respect to electronic PHI that it creates, receives, maintains, or transmits on behalf of Customer.

Section 3. Reporting of Disclosures of Protected Health Information. ResMed will report to Customer any use or disclosure of PHI or any Security Incident in violation of this Addendum of which it becomes aware. Notwithstanding the foregoing, the parties acknowledge and agree that this Section 3 constitutes notice by ResMed to Customer of the ongoing existence and occurrence or attempts of Unsuccessful Security Incidents for which no additional notice to Customer shall be required. Unsuccessful Security Incidents means, without limitation, pings and other broadcast attacks on ResMed’s firewall, port scans, unsuccessful log-on attempts, denial of service attacks, and any combination of the above, so long as no such incident results in unauthorized access, use or disclosure of Customer’s electronic PHI.

Section 4. Notification of Breach. ResMed shall, within sixty (60) days following discovery of a Breach of Unsecured PHI, notify Customer of such Breach. Such notice shall include the identity of each Individual whose Unsecured PHI has been, or is reasonably believed to have been, breached. ResMed’s obligation to report under Section 3 and this Section 4 is not and will not be construed as an acknowledgement by ResMed of any fault or liability with respect to any use, disclosure, Security Incident or Breach.

Section 5. Agreements by Third Parties. ResMed shall obtain and maintain a written agreement with each affiliate, agent or subcontractor that creates, receives, maintains, or transmits Customer’s PHI on behalf of ResMed. Under the agreement, such affiliate, agent or subcontractor shall agree to the same restrictions and conditions that apply to ResMed pursuant to this Addendum with respect to such PHI.

Section 6. Access to Information. If ResMed maintains PHI in a Designated Record Set, as defined in 45 C.F.R. § 164.501, then upon request of Customer, ResMed shall provide access to such PHI in a Designated Record Set to the Individual in order for Customer to comply with the requirements under 45 C.F.R. § 164.524. If ResMed receives a direct request from an Individual for access to PHI, it will forward the request to Customer to fulfill. If ResMed provides copies or summaries of PHI to an Individual it may impose a reasonable, cost-based fee in accordance with 45 C.F.R. § 164.524(c)(4). Notwithstanding the foregoing, if the PHI that is the subject of a request for access is maintained in one or more Designated Record Sets electronically and if the Individual requests an electronic copy of such information, ResMed shall provide access to the PHI in the electronic form and format requested. Further, if an Individual’s request for access directs ResMed to transmit the copy of PHI directly to another person designated by the Individual, ResMed shall provide the copy to the person designated by the Individual. The Individual’s request must be in writing, signed by the Individual, and clearly identify the designated person.

Section 7. Availability of Protected Health Information for Amendment. If ResMed maintains PHI in a Designated Record Set, ResMed agrees to make available PHI for amendment and incorporate any amendments to PHI in a Designated Record Set, in order for Customer to comply with 45 C.F.R. § 164.526. If ResMed receives a direct request from an Individual for amendment to PHI, it will forward the request to Customer to fulfill.

Section 8. Accounting of Disclosures. Within forty-five (45) days of notice by Customer to ResMed that it has received a request for an accounting of disclosures of PHI, other than related to the Treatment of a patient, the processing of Payments related to such Treatment, or the Health Care Operations of a covered entity or its business associate and not relating to disclosures made earlier than six (6) years prior to the date on which the accounting was requested, ResMed shall make available such information as is in ResMed’s possession and is required for Customer to make the accounting required by 45 C.F.R. § 164.528. If ResMed receives a direct request from an Individual for an accounting of disclosures of PHI, it will forward the request to Customer to fulfill.

Section 9. Availability of Books and Records. ResMed agrees to make its internal practices, books and records relating to the use and disclosure of PHI received from, or created or received by ResMed on behalf of, Customer available to the Secretary for purposes of determining Customer’s compliance with the Privacy Standards.

Section 10. Remuneration in Exchange for PHI. Except for the purposes set forth in the Agreement and as otherwise provided by law, ResMed shall not directly or indirectly receive remuneration in exchange for any PHI of an Individual unless Customer receives a valid HIPAA authorization.

Section 11. Minimum Necessary. ResMed shall make reasonable efforts to limit the use, disclosure, or request of PHI to the minimum necessary to accomplish the intended purpose of the use, disclosure, or request.

Section 12. Performance of Customer’s Obligations. If ResMed agrees to carry out an obligation of Customer under 45 C.F.R. Part 164, Subpart E, ResMed shall comply with the requirements of 45 C.F.R. Part 164, Subpart E that apply to Customer in the performance of such obligations.

III. OBLIGATIONS OF CUSTOMER

Section 1. Minimum Necessary. Customer shall disclose to ResMed only that PHI which Customer determines is reasonably necessary to achieve the intended purpose of the disclosure.

Section 2. Changes in Policies and Procedures. Customer shall notify ResMed prior to implementing any change in its privacy or security policies and procedures, including its Notice of Privacy Practices, which would affect ResMed’s obligations hereunder.

IV. TERM AND TERMINATION

Section 1. Term. This Addendum will become effective on the Effective Date and, unless otherwise terminated as provided herein, will have a term that will run concurrently with that of the last expiration date or termination of the Agreement.

Section 2. Termination Upon Breach of Provisions Applicable to Protected Health Information. Any other provision of the Agreement notwithstanding, this Addendum and the Agreement may be terminated by Customer upon thirty (30) days written notice to ResMed in the event that ResMed breaches any material provision contained in this Addendum and such breach is not cured within such thirty (30) day period.

Section 3. Effect of Termination. Upon termination of the Agreement and this Addendum ResMed shall either return or destroy all PHI received from Customer or created or received by ResMed on behalf of Customer and which ResMed still maintains in any form. ResMed shall not retain any copies of such PHI. Notwithstanding the foregoing, to the extent that it is not feasible to return or destroy such PHI, the terms and provisions of this Addendum shall survive termination and such PHI shall be used or disclosed solely for such purpose or purposes which prevented the return or destruction of such PHI.

1017838/1 2014-07 (Modified)

ResMed ReSupply Data Products Services Agreement Rev. January 2016