3.1  For the purposes of this CSA, all references in the MSA and herein to the “Agreement” shall refer to this CSA.

4.1  For purposes of this CSA, all references in the MSA to “Modern Health” shall refer instead to MLCA.

 

1.4  California Participants.  This CSA contains the terms and conditions with respect to the provision of Covered Services (as defined below), solely with respect to Participants that reside in California and who are employees of California-headquartered employers (“California Participants”).   For purposes of this CSA, all references in the MSA to “Participants” shall instead refer exclusively to “California Participants”.

 

1.5  Covered Services.  This CSA contains specific revisions to the terms of the MSA and additional terms that apply solely to the provision of services that are offered to California Participants as described in the Order Form (“Covered Services”).   For the avoidance of doubt, Covered Services do not include any Services that are delivered to any Participants residing outside of California.

 

1.6  Conflicting Terms. For the avoidance of doubt, in the event of any conflict between any inconsistent or contrary language in this CSA and the terms of the MSA, the provisions of the CSA shall control.

 

2      California Specific Changes.

 

2.1  Revised Definitions:

 

2.1.1      The definition of “Law” set forth in the MSA is hereby deleted in its entirety and replaced with the following:

 

     “Applicable Law” or “Law” means any applicable statute, law, regulation or other requirement of any federal, State, local, or foreign government, including, without limitation, (i) those enforced by regulatory agencies including the California Department of Managed Health Care (“DMHC”); (ii) laws specific to the provision of health care service plans, including the Knox-Keene; (iii) the California Medical Information Act (CA Civil Code Section 56.10 et seq.) (“CMIA”); and (iv) the Health Insurance Portability and Accountability Act of 1996 (Pub. L. No. 104-191) and its implementing regulations (“HIPAA”) and the Health Information Technology for Economic and Clinical Health and its implementing regulations (Title XIII of Division A and Title IV of Division B of the American Recovery and Reinvestment Act of 2009, Pub. L. No. 111-5.) (“HITECH Act”).  

 

2.1.2      The definition of “Affiliate” set forth in the MSA is hereby deleted in its entirety and replaced with the following:

 

     “Affiliate” means a person controlled by, under common control with, or controlling such person.  A person’s relationship with another person is that of an “affiliated person’’ if such person is, as to such other person, a director, trustee or a member of its executive committee or other governing board or committee, or that of an officer or general partner, or holds any other position involving responsibility and authority similar to that of a principal officer or general partner; or who is the holder of 5% or more of its outstanding equity securities; or who has any such relationship with an affiliate of such person. An affiliate is also an affiliated person.

 

2.1.3      The definition of “Reports” in the MSA is revised to refer instead in all cases to “Customer Reports”, (making the necessary adjustments as the context requires), which shall be defined as follows:

 

“Customer Reports” means the reports generated by MLCA regarding the utilization of Covered Services by the California Participants, the care being received by California Participants, and insights into the mental and behavioral health and wellbeing of the California Participants (for the avoidance of any doubt, all information contained in the Customer Reports will be aggregated, deidentified and will not include “Protected Health Information” (as defined by HIPAA, CMIA, and other Applicable Law).

 

2.1.4      All instances in the MSA of the term “Services” are hereby replaced with the term “Covered Services”, defined above.

 

2.2      New Definitions:

 

2.2.1      “Dependent(s)” means a person eligible for EAP coverage through their relationship with an employee of Customer. Dependents include the 1) spouse (defined as a person who is legally married to the employee and not legally separated from the employee), 2) Domestic Partner (as defined in California Family Code Section 297 and 299.2), 3) child (defined as a child of, adopted by, or in legal guardianship of the employee, their spouse, or Domestic Partner, and who is not themselves an employee; including any stepchild, child placed for adoption, or any other child for whom the employee, spouse, or Domestic Partner has been appointed as a non-temporary legal guardian by a court of appropriate legal jurisdiction; a child is an individual less than 26 years of age; a child does not include any children of a child (grandchildren of the employee, spouse, or Domestic Partner, unless the employee, spouse, or Domestic Partner has adopted or is the legal guardian of the grandchild) of an employee; a child 26 or older can remain enrolled as a Dependent if the child is disabled, incapable of self-support because of a mental or physical disability, and chiefly dependent on the employee for economic support), or 4) as determined by the Customer.

   

2.2.2      “Evidence of Coverage” or “EOC” means any certificate, agreement, contract, brochure, or letter of entitlement issued to a Participant setting forth the Covered Services to which the California Participant is entitled.  The EOC is incorporated into this CSA by reference and together constitute the agreement between MLCA and Customer.  While available upon request and via the application or website, it is the responsibility of Customer to ensure California Participants have access to and timely receive a copy of the EOC and any changes thereto. 

 

2.2.3      “Exclusion” or “Limitation” means any provision of Covered Services, which is not covered or restricts coverage, as further defined in the EOC.

 

2.2.4      “Fees” or “Premiums” means the amounts (including the annual and/or monthly per member per month amount) charged to and payable by Customer to MLCA for the Covered Services provided to California Participants.  Fees and/or Premiums also includes any additional amounts charged to and payable by Customer to MLCA for Covered Services, as defined below and in the applicable Order Form.  Fees and/or Premiums for new California Participants are due for the entire month when the new California Participant’s coverage effective date is any day during that month.  Coverage begins at the beginning (12:00 a.m.) of the effective date of coverage.  Fees for California Participants whose eligibility ends are due for the entire month when the California Participant’s last day of coverage is any day during that month.  Coverage ends at the end (11:59 p.m.) of the effective date of termination of coverage. 

 

2.2.5      “Service Area” means a geographical area approved by the DMHC within which MLCA shall provide Covered Services.  “Service Area” may also be referred to as “Territory” in the MSA.

 

2.3      Clinical/Wellness Services.   The section of the MSA defining “Services” is deleted in its entirety, and replaced with the following:

 

2.3.1      Services Clinical/Wellness Services. MLCA shall arrange or provide for professional Clinical and/or Wellness Services, (as applicable, collectively, “Covered Services”) to California Participants in accordance with the terms and conditions of this CSA and in compliance with Applicable Law, including but not limited to the Knox-Keene. Customer understands and agrees that the Covered Services may be performed or delivered by appropriately licensed, as applicable, independent contractors, vendors, or other service providers of MLCA. 

 

“Clinical Services” means therapy provided by Providers who or that are appropriately California-licensed and/or certified, including, for example, psychologists, marriage and family counselors, clinical social workers, or other professionals licensed and/or certified under applicable California Law to deliver therapy and who or that is contracted with MLCA to provide Clinical Services. 

 

“Wellness Services” means all other services, other than Clinical Services, e.g., coaching, provided by individuals or vendors who or that are contracted with MLCA to provide Wellness Services, which are described in the attached Order Form.

 

In conjunction with the provision of Covered Services, MLCA may also provide Platform-related, implementation, and associated services to Customer and California Participants.

 

Certain components or portions of the Covered Services may be provided via a website, portal, mobile application, and/or a software program uploaded to a computer or downloaded from the internet.  In the event those Covered Services that may ordinarily be provided via a website, portal, mobile application, and/or a software program uploaded to a computer or downloaded from the internet are unavailable, the Covered Services may also be provided telephonically and/or in-person, as applicable.

 

For clarity and subject to the Termination for Non-Payment of Fees provision below, California Participants (and if applicable, their eligible Dependents) will lose access to the Covered Services upon termination of their employment or contractual engagement with the Customer for any reason, and MLCA will not provide Customer with any refund as a result thereof. Notwithstanding the foregoing, MLCA and Customer may agree to provide access to the Services to California Participants (and if applicable, their eligible Dependents) eligible to receive the Covered Services after termination of their employment or contractual relationship with Customer pursuant to the “Consolidated Omnibus Budget Reconciliation Act of 1985” (“COBRA”) or CalCOBRA (Knox-Keene Code Article 4.5 “California COBRA Program”).

 

2.4           The section of the MSA regarding Payment Terms is hereby deleted in its entirety, and replaced with the following:

 

Payment Terms. Unless otherwise specified in an Order Form and subject to applicable grace periods, Customer will pay all amounts due within thirty (30) days of the date of the applicable invoice.  Customer agrees that it will reimburse MLCA for any reasonable costs or expenses (including, but not limited to, attorneys’ fees) incurred by MLCA to collect any amount not paid when due.  Please see CSA Section 2.7 below for more details regarding disputing invoices, grace periods, reinstatement rights and similar provisions.

 

2.5           The section of the MSA regarding Customers’ Use Restrictions; Unauthorized Use is hereby deleted in its entirety, and replaced with the following:

 

Use Restrictions; Unauthorized Use. Except as otherwise explicitly permitted herein or mandated by Applicable Law, Customer will not, and will not permit or authorize California Participants or other third parties to: (a) rent, lease, or otherwise permit third parties to use the Covered Services, Platform, or Documentation; (b) use the Covered Services to provide services to third parties (e.g., as a service bureau); (c) reverse engineer, decompile, disassemble, or otherwise attempt to derive source code or other trade secrets from the Covered Services or any software included therein; or (d) circumvent or disable or otherwise attempt to evade or interfere with any security or other technological features or measures of the Covered Services or Platform. Customer shall use reasonable efforts to prevent any unauthorized use of the Covered Services, Platform, or Documentation and immediately notify MLCA in writing of any unauthorized use that comes to Customer’s attention, whether by a Participant or other third party. Customer acknowledges and agrees that MLCA has the right to limit or terminate access to the Platform to any California Participant who knowingly violates the Documentation, and Customer will reasonably cooperate and assist with any actions taken by MLCA to prevent or terminate unauthorized use thereof; however, the referred to California Participant may still access Covered Services via non-Platform modes, including, for example, in-person and telephonic therapy.

 

2.6           The section of the MSA that defines the “Term” is hereby deleted in its entirety, and replaced with the following:

 

TERM. This Agreement will commence upon the Effective Date and continue unless terminated earlier in accordance with the terms hereof (“Term”).

 

2.7           The section of the MSA regarding “Termination” and the “Effect of Termination” is hereby deleted in its entirety, and replaced with the following:

 

2.7.1      Invoice Dispute Process. If Customer reasonably disputes any amount contained in an invoice, Customer shall file a grievance with MLCA within one hundred and eighty (180) days of the invoice date including a description of the invoice dispute. The Parties will use commercially reasonable efforts to resolve the dispute in a timely manner (in no event greater than thirty (30) calendar days) and Customer shall pay the disputed amounts within ten (10) days following resolution of such dispute.  Customer may also utilize the DMHC grievance process, which is further described in the “Disputes and Grievances” Section of the EOC.

 

2.7.2      Automatic Termination.  If any other government authority  enacts a law that prohibits the continuance of this CSA or any Order Form, or an existing Law is interpreted by the DMHC, in their sole discretion, to prohibit the continuance of this CSA or any Order Form, this Agreement or the applicable Order Form shall terminate automatically as to such state or jurisdiction on the effective date of such Law or interpretation; provided, however, that if only a portion of this CSA or Order Form is prohibited by Law, only that portion of this CSA of the applicable Order Form that is prohibited shall be terminated and this CSA or Order Form shall be construed in all respects as if such invalid or unenforceable provision were omitted.

 

2.7.3      Cancellations, Rescissions, or Non-Renewals for Reasons Other than Nonpayment of Premiums and/or Fees.  MLCA may terminate the CSA and any applicable Order Forms:

 

a.     Upon thirty (30) days’ notice to Customer if Customer and/or a California Participant has performed any act or practice that constitutes fraud or made any intentional misrepresentation of a material fact relevant to the coverage provided under this CSA; and

 

b.     Subject to any applicable Grace Period or continuation coverage requirements, upon thirty (30) days written notice to Customer if Customer; (i) ceases to meet MLCA eligibility requirements for an employer group or association; (ii) fails to meet MLCA plan contribution or participation requirements applicable to this CSA (which comply with Knox-Keene Act Section 1357.03, as applicable), if applicable; or for any other reason that is acceptable to the DMHC and in compliance with Applicable Laws.

 

2.7.4      Cancellations, Rescissions, or Non-Renewals for Non-Payment of Premiums and/or Fees. MLCA may terminate the CSA and any applicable Order Forms:

 

a.     If Customer fails to timely and completely pay Premiums and/or Fees, which amount(s) and due date(s) shall be described in each invoice.  MLCA will first provide Customer with written notice of the applicable grace period and grievance and appeal rights, as described below.  

 

2.7.5      Cancellation of Enrollment Due to Non-Payment of Premiums and/or Fees and Grace Period.  If MLCA does not timely and completely receive the Premiums and/or Fees from Customer by the due date, the account will be considered late.  MLCA will send Customer a Notice of Start of Grace Period notice in writing advising that a payment delinquency has triggered a grace period beginning the day the Notice of Start of Grace Period notice is dated stating that the Covered Services will be terminated unless the full Premiums and/or Fees amount due is received by MLCA on or before the last day of the Grace Period.  This Notice of Start of Grace Period notice will include important information needed to maintain uninterrupted coverage, including: an explanation of the Grace Period, the beginning and end dates of the Grace Period, the dollar amount past due, the date of the last day of paid coverage and a statement explaining the consequences of losing coverage.  Customer is responsible for promptly providing a legible, true copy of this Notice of Start of Grace Period to each California Participant at their current address unless otherwise explicitly agreed to in writing.  The Notice of Start of Grace Period must meet the requirements of Knox-Keene Rule 1300.65.2, including but not limited to the reason for and effective date of the cancellation, rescission, or non-renewal and applicable grievance and appeals rights.  Coverage will continue during the Grace Period.  Coverage will also continue upon payment of all outstanding Premiums and/or Fees amounts received any time before the expiration of the Grace Period.  Customer and not the California Participants are financially responsible for any and all Premiums and/or Fees.  California Participants are responsible for any Cost-Sharing amounts, if applicable, including those incurred for Covered Services received during the Grace Period.  If, after receiving the Notice of Start of Grace Period notice, Customer’s account remains delinquent after expiration of the entire Grace Period, coverage will be prospectively terminated.  MLCA will then send Customer a written Notice of End of Coverage within five (5) calendar days after the date coverage ends, which notice shall comply with Knox-Keene Rule 1300.65.2, including but not limited to the reason for and effective date of the cancellation, rescission, or non-renewal and applicable grievance and appeal rights.   Unless explicitly agreed to in writing and MLCA has been granted an exemption from the DMHC, Customer is responsible for promptly providing a legible, true copy of this Notice of End of Coverage to each California Participant at their current address.   Should Customer not promptly provide a legible, true copy of the Notice of End of Coverage to each California Participant at their current address, MLCA shall promptly provide a legible, true copy of the Notice of End of Coverage to each California Participant.  In this case, coverage will not end until the thirtieth (30th) day after MLCA mails the notice.  Customer is required to reimburse MLCA for the costs of such mailing and for all premiums accrued due to the non-performance of this contractual obligation.  If the full Premiums and/or Fees are paid before the end of the Grace Period, MLCA shall reinstate the CSA and applicable Order Form(s) as though they had never been cancelled. 

 

2.7.6      Right to Submit Grievance Regarding Cancellation, Rescission, or Nonrenewal of Plan Enrollment, Subscription, or Contract.  If Customer and/or California Participants believe their enrollment has been, or will be, improperly cancelled, rescinded, or not renewed it or they have at least one hundred eighty (180) days from the date of the notice it or they allege to be improper to submit a grievance to MLCA and/or the DMHC.  For grievances submitted prior to the effective date of the cancellation, rescission, or non-renewal, MLCA will continue to provide coverage while the grievance is pending with MLCA or the DMHC.  During the period of continued coverage, Customer is responsible for timely and completely paying Premiums and/or Fees and California Participants are responsible for any Cost-Sharing amounts, if applicable.

 

a.     OPTION 1 – YOU MAY SUBMIT A GRIEVANCE TO YOUR PLAN.  You may submit online through the website at www.modernhealth.com/, by phone at 866-535-6463, or in writing to Modern Life CA, Inc. at  650 California Street, Fl. 7, Office 07-128, San Francisco, CA 94108. You may want to submit your grievance to us first if you believe your cancellation, rescission or non-renewal is the result of a mistake.  Grievances should be submitted as soon as possible.  We will resolve your grievance or provide a pending status within three (3) calendar days.  If you do not receive a response from us within three (3) calendar days, or if you are not satisfied in any way with our response, you may submit a grievance to the DMHC as detailed under Option 2 below.

 

b.     OPTION 2 – YOU MAY SUBMIT A GRIEVANCE DIRECTLY TO THE DMHC.  You may submit a grievance to the DMHC without first submitting it to us or after you have received our decision on your grievance.  Grievances may be submitted to the DMHC online at www.dmhc.ca.gov or by mailing your written grievance to:

Help Center

Department of Managed Health Care

980 Ninth Street, Suite 500

Sacramento, CA 95814-2725

You may contact the DMHC for more information on filing a grievance at: 

Phone: 1-888-466-2219  TDD: 1-877-688-9891  Fax: 1-916-255-5241

 

2.7.7      Reinstatement.  A reinstatement shall be retroactive to the time of cancellation, rescission, or failure to renew and MLCA shall be liable for the expenses incurred by the California Participants for Covered Services from the date of cancellation, rescission, or nonrenewal to and including the date of reinstatement.   If Customer and/or California Participants submit a grievance for cancellation, rescission, or non-renewal, including a cancellation for non-payment of Premiums and/or Fees, and it is determined the cancellation, rescission, or non-renewal is improper, the coverage will be reinstated retroactive to the date of cancellation, rescission, or non-renewal.  Customer is responsible for timely and completely paying any and all outstanding Premiums and/or Fees payments accrued from the effective date of the cancellation, rescission, or non-renewal before reinstatement.  Any outstanding Premiums and/or Fees must be paid prior to reinstatement.

 

2.7.8      Effect of Termination.  No termination of this CSA or any Order Form will relieve either Party from any obligation incurred before the date of termination.  When terminated, this CSA, or applicable Order Form, and all coverage provided hereunder will end at 12:00 midnight on the effective date of termination.  Except in the case of termination due to fraud, MLCA shall within thirty (30) days of the termination return to Customer any pro rata portion of the money paid to MLCA that corresponds to any unexpired period for which payment had been received, if any, less any amounts due MLCA, including MLCA providers.  

 

2.7.9      Post-Termination Obligations. If this CSA and/or an Order Form is terminated for any reason specified in this Section Customer will provide MHCA with a written certification signed by an authorized Customer representative certifying that Customer has ceased all use of the Covered Services and Documentation.

 

2.7.10   Cancellation of Enrollment Due to Reasons Other Than Non-Payment of Premiums and/or Fees.  For cancellation of enrollment due to reasons other than non-payment of Premiums, unless explicitly agreed to in writing, MHCA shall send Customer a Notice of End of Coverage.  Customer is responsible for promptly providing a legible, true copy of the Notice of End of Coverage to each California Participant, which shall comply with Knox-Keene Rule 1300.65.1, at their current address.   Should Customer not promptly provide a legible, true copy of the Notice of End of Coverage to each California Participant at their current address, MLCA shall promptly provide a legible, true copy of the Notice of End of Coverage to each California Participant.  In this case, coverage will not end until the thirtieth (30th) day after MLCA mails the notice.  Customer is required to reimburse MLCA for the costs of such mailing due to the non-performance of this contractual obligation. 

 

2.8           The section of the MSA providing a Disclaimer of representations and warranties is hereby deleted in its entirety, and replaced with the following:

 

Disclaimer. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS AGREEMENT AND AS REQUIRED BY THE KNOX-KEENE AND OTHER APPLICABLE LAW, MODERN HEALTH MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED AS TO ANY MATTER WHATSOEVER. MODERN HEALTH EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. NOTWITHSTANDING ANYTHING SET FORTH HEREIN, MODERN HEALTH MAKES NO WARRANTY AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE SERVICES. MODERN HEALTH DOES NOT WARRANT THAT THE SERVICES ARE ERROR-FREE OR THAT OPERATION OF THE SERVICES WILL BE SECURE OR UNINTERRUPTED. MODERN HEALTH DOES NOT WARRANT THAT ANY INFORMATION PROVIDED THROUGH THE SERVICES IS OR WILL BE ACCURATE OR COMPLETE, NOR THAT ANY INFORMATION PROVIDED THROUGH THE SERVICES WILL ALWAYS BE AVAILABLE. MODERN HEALTH IS NOT RESPONSIBLE FOR UNAUTHORIZED ACCESS TO, OR DISCLOSURE OF, ANY UNENCRYPTED DATA PROVIDED BY CUSTOMER TO MODERN HEALTH WHILE SUCH DATA IS IN TRANSIT TO OR FROM THE SYSTEMS OR NETWORKS CONTROLLED BY MODERN HEALTH, EXCEPT AS REQUIRED BY HIPAA, HITECH, AND/OR THE CMIA.

 

2.9  The section of the MSA containing the Cap on Liability is hereby deleted in its entirety.

 

2.10        The section of the MSA regarding Excused Performance (Force Majeure) is hereby deleted in its entirety, and replaced with the following:

 

EXCUSED PERFORMANCE. IF MLCA FAILS TO PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT (INCLUDING FAILING TO MEET ANY SERVICE LEVELS INCLUDED IN AN ORDER FORM), SUCH FAILURE WILL BE EXCUSED TO THE EXTENT THAT IT IS CAUSED BY (A) A “FORCE MAJEURE EVENT”, MEANING CIRCUMSTANCES BEYOND MLCA’S REASONABLE CONTROL, INCLUDING ACTS OF GOD, ACTS OF WAR, TERRORIST ACTS, NATURAL DISASTERS, EPIDEMICS/PANDEMICS, ACCIDENTS, LABOR DISRUPTION, ACTS, OMISSIONS, AND DEFAULTS OF THIRD PARTIES (BUT NOT ACTS, OMISSIONS, OR DEFAULTS OF THIRD PARTIES WITH WHOM MLCA HAS CONTRACTUAL, EMPLOYMENT, OR AGENCY RELATIONSHIP, EXCEPT TO THE EXTENT THAT THE THIRD PARTY’S DEFAULT IS RELATED TO A FORCE MAJEURE EVENT), (B) OFFICIAL, GOVERNMENTAL, AND JUDICIAL ACTION NOT THE FAULT OF MLCA, OR (C) THE THREAT OF ANY OF THE FOREGOING. MLCA WILL PROMPTLY NOTIFY CUSTOMER OF EVENTS THAT WOULD EXCUSE ITS PERFORMANCE AND USE ITS COMMERCIALLY REASONABLE EFFORTS TO CONTINUE PERFORMANCE AND TO MITIGATE THE IMPACT OF SUCH EVENTS. MLCA WILL BE ENTITLED TO RECOVER ANY INCREASED COSTS OF PERFORMANCE WHICH THE PARTIES MUTUALLY AGREE TO HAVE BEEN CAUSED BY FORCE MAJEURE EVENTS.

 

2.11        The section of the MSA regarding the Effect of New Laws and Change of Conditions is hereby deleted in its entirety, and replaced with the following:

 

EFFECT OF NEW LAWS AND CHANGE OF CONDITIONS. The Parties agree to renegotiate the relevant portion or provisions of this CSA in good faith upon the occurrence of any of the following events: (a) if any Party would be materially and adversely affected by continued performance as a result of change in Law, which require that it comply with a Law contrary to the Party’s prior reasonable understanding; (b) any material portion or provision of this CSA is declared in violation of any Law by any competent court or State or federal agency; or (c) Customer or MLCA receives notice from any federal or State agency that, in such agency’s opinion, any material provision or provision of this CSA is in violation of any Law. The Party affected under this Section 2.11 must promptly notify the other Party of the change, required compliance, official notice, or evidence of violation, and its desire to renegotiate the relevant portion or provisions of this CSA in order to address the occurrence of one or more of the events enumerated in this Section 2.11. If the Parties hereto are unable to agree in good faith on a modification to such portion or provision of this CSA pursuant to this Section 2.11, which modification does not materially alter a material benefit of the original CSA enjoyed by either Party, and if an amendment to this CSA is not executed within thirty (30) days of receipt of the renegotiation notice, the Customer shall have the right to immediately terminate this CSA upon written notice and in compliance with Knox-Keene Section 1365 regarding grace periods.

 

2.12        The section of the MSA regarding Notices is hereby deleted in its entirety, and replaced with the following:

 

Notices. All notices and other communications hereunder shall be in writing and shall be deemed to have been given by email to the address below, along with a courtesy paper copy delivered by mail or overnight courier.   Such communications must be sent to the respective Party at the addresses indicated below (or at such other address for a Party as shall be specified in a notice given in accordance with this Section).

 

If to:          Modern Life CA, Inc.:

                        by email at legal@modernhealth.com

 

With a courtesy copy to:

Modern Life CA, Inc.

                        650 California Street, Fl. 7, Office 07-128

                        San Francisco, CA 94108

                        Attn: President

 

     If to:         Customer: at the address identified in the applicable Order Form

 

 

2.13        The section of the MSA regarding Assignment is hereby deleted in its entirety, and replaced with the following:

 

Assignment. Neither Party may assign its right, duties, and obligations under this Agreement without the other Party’s prior written consent, not to be unreasonably withheld or delayed, except that a Party may assign this Agreement without the other Party’s consent to a successor (including a successor by way of merger, acquisition, or sale of all or substantially all assets, or operation of Applicable Law, e.g., court-approved bankruptcy sale) if the successor agrees to assume and fulfill all of the assigning Party’s obligations under this Agreement.  MLCA’s assignment of this Agreement may be subject to the prior approval of the DMHC.

 

2.14        The section of the MSA regarding Governing Law is hereby deleted in its entirety, and replaced with the following:

 

Governing Law. This Agreement shall be governed by and construed in accordance with the internal Laws of the State of California without giving effect to any choice or conflict of laws provision or rule (whether of the State of California or any other jurisdiction) that would cause the application of Laws of any jurisdiction other than those of the State of California.

 

2.15        The following section is hereby added to the CSA:

 

Changes in Fees, Premiums, and/or Covered Services. 

 

Customers with 100 or more employees: Changes in Fees, Premiums, and/or Covered Services shall not take effect unless MLCA has provided Customer with at least 120 days’ notice before the CSA renewal effective date, which notices shall comply with Knox-Keene Section 1374.21(a)(2).

 

Customers with less than 100 employees:  Changes in Fees, Premiums, and/or Covered Services shall not take effect unless MLCA has provided Customer with at least 60 days’ notice before the CSA renewal effective date.

 

2.16        The following section is hereby added to the CSA:

 

Incorporation.  MLCA is subject to the requirements of the Knox-Keene and any provision required to be in this CSA by the Knox-Keene or orders promulgated thereunder shall bind the Parties whether or not set forth in this CSA.

 

2.17        The section of the MSA regarding Dispute Resolution is hereby deleted in its entirety, and replaced with the following as:

Dispute Resolution. The Parties agree to meet and confer in good faith and to use their best reasonable efforts to resolve any problems, claims, disputes, or controversies arising out of or related to this CSA (“Dispute”) promptly by negotiation between executives who have authority to settle the controversy. In the event a Dispute is not resolved by the Parties pursuant to the process above within fifteen (15) days of the provision of a notice of Dispute by either Party, the Parties agree to submit the Dispute to binding arbitration (the “Arbitration”). The Arbitration shall be held in San Francisco, California; the exact time and location shall be decided by the arbitrator(s) selected in accordance with the then current Rules of JAMS. The Arbitration shall be initiated and administered by and in accordance with the then current Rules of JAMS, or if JAMS is not in existence or otherwise unable to conduct the Arbitration in San Francisco, with the then current Commercial Rules of the American Arbitration Association. The arbitrator(s) shall apply California substantive Applicable Law or federal substantive Applicable Law where California state Applicable Law is preempted. The arbitrator(s) selected shall have the power to enforce the rights, remedies, duties, liabilities and obligations of discovery by the imposition of the same terms, conditions, and penalties as can be imposed in like circumstances in a civil action by a court of competent jurisdiction of the State of California. The arbitrator(s) shall have the power to grant all legal and equitable remedies provided by California Law and award compensatory damages provided by California Law, except that punitive damages shall not be awarded. Except as provided in the Payment Terms section above, each Party in any Arbitration hereunder shall bear its own costs and fees including expert and non-expert witness costs and any other expenses incurred directly or indirectly with said Arbitration, provided, however, that the Parties shall each pay an equal share of the fees and expenses of the arbitrator(s).

 

ALL DISPUTES BETWEEN YOU AND MLCA, INCLUDING BUT NOT LIMITED TO DISPUTES RELATING TO THE DELIVERY OF SERVICE UNDER THE CSA OR ANY OTHER ISSUES RELATED TO THE CSA AND CLAIMS OF MEDICAL MALPRACTICE, MUST BE RESOLVED BY BINDING ARBITRATION, IF THE AMOUNT IN DISPUTE EXCEEDS THE JURISDICTIONAL LIMIT OF SMALL CLAIMS COURT AND THE DISPUTE CAN BE SUBMITTED TO BINDING ARBITRATION UNDER APPLICABLE FEDERAL AND STATE LAW, INCLUDING BUT NOT LIMITED TO, THE PATIENT PROTECTION AND AFFORDABLE CARE ACT. For claims that exceed the jurisdiction of the small claims court that are subject to binding arbitration under this CSA, Knox-Keene Section 1363.1 requires specified disclosures in this regard: It is understood that any dispute as to medical malpractice, that is as to whether any medical services rendered under this CSA were unnecessary or unauthorized or were improperly, negligently or incompetently rendered, will be determined by submission to arbitration as permitted and provided by federal and California law, including but not limited to, the Patient Protection and Affordable Care Act, and not by a lawsuit or resort to court process except as California law provides for judicial review of arbitration proceedings. Both Parties to this CSA, by entering into it, are giving up their constitutional right to have any such dispute decided in a court of law before a jury, and instead are accepting the use of arbitration. YOU AND MLCA AGREE TO BE BOUND BY THIS ARBITRATION PROVISION. YOU ACKNOWLEDGE THAT FOR DISPUTES THAT ARE SUBJECT TO ARBITRATION UNDER STATE OR FEDERAL LAW THE RIGHT TO A JURY TRIAL, THE RIGHT TO A BENCH TRIAL UNDER CALIFORNIA BUSINESS AND PROFESSIONS CODE SECTION 17200, AND/OR THE RIGHT TO ASSERT AND/OR PARTICIPATE IN A CLASS ACTION ARE ALL WAIVED BY YOU. If your CSA is subject to 45 CFR 147.136, this CSA does not limit your rights to internal and external review of adverse benefit determinations as required by that law. Enforcement of this arbitration clause, including the waiver of class actions, shall be determined under the Federal Arbitration Act (“FAA”), including the FAA’s preemptive effect on state law. By signing, writing or typing your name below on behalf of Customer you agree to the terms of this agreement and acknowledge that your signed, written or typed name is a valid and binding signature.

 

2.18    The following section is hereby added to the CSA:

The Parties acknowledge that in carrying out their obligations under this Agreement, they may have reason to access medical records and patient information maintained by MLCA (“Patient Information”). The Parties agree to comply with all Applicable Laws governing the privacy, confidentiality and security of Patient Information including, without limitation, the Health Insurance Portability and Accountability Act of 1996 and implementing regulations (“HIPAA”), the Health Information Technology for Economic and Clinical Health Act, as incorporated in the American Recovery and Reinvestment Act of 2009, and the regulations promulgated thereunder (the “HITECH Act”), and applicable state privacy laws, including but not limited to the California Medical Information Act (“CMIA”), all as amended from time to time.