HIE NETWORKS HEALTH INFORMATION NETWORK TERMS OF USE RECITALS

Transcription

1 HIE NETWORKS HEALTH INFORMATION NETWORK TERMS OF USE RECITALS HIE Networks seeks to reduce the cost and improve the quality and efficiency of health care provided by the User through the electronic management and exchange of health information acquired or generated by the User in providing, paying for, and reporting on patient care items and services. HIE Networks has developed and operates a Health Information Network ( HIN ) to facilitate the electronic transmission, limited storage, and sharing of clinical health information among participating providers of health care services, third-party payers for health care services, and other interested parties in their respective regions in a manner that complies with all applicable laws and regulations, including without limitation those protecting the privacy and security of health information. Participant desires to utilize the HIN to share clinical information, as allowed by applicable law, for treatment purposes. For good and valuable consideration, the receipt and sufficiency and adequacy of which are hereby acknowledged, the parties agree as follows: 1. DEFINITIONS Agreement. The term Agreement shall mean this Terms of Use Agreement HIE Networks Services. The term HIE Networks Services means software and technical services designed to enable a Participant to utilize the HIE Networks HIN. 1.4 HIE Networks HIN. The term HIE Networks HIN the electronic network developed, implemented and maintained by HIE Networks for the exchange of clinical data Associated Software. The term Associated Software is defined in Exhibit A Authorized Representative. The term Authorized Representative shall mean an individual designated by a Participant to represent the Participant. The initial Authorized Representative for each Participant is identified on the signature page of the Registration Application. HIE Networks-HIN-TermsOfUse

2 1.5. Authorized User. The term Authorized User shall mean individuals, i.e., natural persons, designated by a Participant to access and use the HIN on behalf of the Participant Business Associate Agreement. The term Business Associate Agreement refers to the business associate agreement, in the form attached to the Registration Application as Exhibit A, to be executed by Participant and HIE Networks Effective Date. The term Effective Date shall mean the date on which HIE Networks approves a Participant s Registration Application thereby allowing Participant to participate in the HIN 1.8. HIPAA. The term HIPAA shall mean the Health Insurance Portability and Accountability Act of 1996 and the regulations promulgated thereunder at 45 CFR Parts 160, 162, and HITECH Act. The term HITECH Act shall mean the Health Information Technology for Economic and Clinical Health Act of 2009 and the regulations promulgated thereunder from time to time Participant The term Participant shall mean an organization or individual registered with HIE Networks and approved to exchange clinical data through the HIN party or parties The term party or parties may individually or collectively refer to HIE Networks and Participant, as applicable Participant s Required Hardware and Software. The term Participant s Required Hardware and Software is defined in Exhibit A Protected Health Information ( PHI ). The term Protected Health Information ( PHI ) shall have the meaning ascribed to it by 45 CFR , and shall include but not be limited to written or electronic information relating to the diagnosis, treatment, tests, prognosis, admission, discharge, transfer, prescription, claims, and/or other HIE Networks-HIN-TermsOfUse

3 data or information implicitly or explicitly identifying a patient to whom items or services are provided by a Participant, which information is provided, stored, or accessed by a Participant in connection with the HIE Networks HIN Registration Application. The term Registration Application shall mean an agreement between the HIE Networks and a Participant pursuant to which HIE Networks registers the Participant in accordance with, and the Participant agrees to comply with, the terms and conditions of this Terms of Use Agreement. Participant may elect to appoint an Agent to make certain decisions on behalf of Participant. If Participant elects to appoint an Agent, Participant shall complete an "Appointment of Agent" form. Such form is an agreement by the Participant and a third-party agent who the Participant has authorized to perform certain functions or make certain decisions on behalf of the Participant Treatment. The term Treatment shall have the meaning ascribed to it by 45 CFR , which currently defines the term as the provision, coordination, or management of health care and related services by one or more health care providers, including the coordination or management of health care by a health care provider with a third party, consultation between health care providers relating to a patient, or the referral of a patient for health care from one health care provider to another and/or as may be defined under other applicable Federal or State law. 2. REGISTRATION REQUIREMENTS Registration Required. Only organizations and individuals registered with HIE Networks as Participants are permitted to access the HIE Networks HIN and use HIE Networks Services. A Participant may be registered to use some or all of the HIE Networks Services, as approved pursuant to that Participant s Registration Application and this Agreement Registration by Application. In order for an organization or an individual to become a Participant, it must submit a completed Registration Application. By submitting a Registration Application the Participant is expressly indicating its agreement with and to be bound by this Agreement as then in effect, upon acceptance of the Registration Application by HIE Networks Participant Classification. Each Participant shall register to participate in one of the following participant classifications: (a) Medical practice; (b) Laboratory; (c) Hospital; HIE Networks-HIN-TermsOfUse

4 (d) Pharmacy; or (e) Such other classifications as may be created by HIE Networks Review of Registration Application and Agreement. HIE Networks shall review each Registration Application, conduct any related evaluation activities, including but not limited to the licensure standing of any individual provider or entity, and approve or disapprove each Participant in accordance with HIE Networks Policies and Procedures. Such approval shall be in HIE Networks reasonable discretion. HIE Networks shall not be required to approve any Participant, however approval will not be denied without good cause, as reasonably determined by HIE Networks. Any applications from providers or entities that are currently excluded from participation in any state of federal health care benefit program shall automatically be denied Acceptance of Registration Application and Agreement. Upon HIE Networks written acceptance of a Participant, the Registration Application and this Agreement shall become legally binding upon HIE Networks and the Participant as of the effective date of the HIE Networks acceptance. Submission of the Registration Application by a Participant does not indicate acceptance by HIE Networks. The Participant shall not be permitted to access the HIE Networks HIN and use HIE Networks Services until its Registration Application has been accepted. 3. TERM AND TERMINATION. 3.1 Term. The terms of the Registration Application and this Agreement shall be for a period of time as set forth in the Participant s Registration Application (the Term ). 3.2 Termination Without Cause. Participant may terminate the Registration Application and this Agreement at any time AFTER THE INITIAL TERM set forth in the Participant s Registration Application without cause by giving thirty (30) day written notice of that termination to HIE Networks. 3.3 Participant s Right to Terminate the Registration Application and this Agreement For Cause. Notwithstanding any other provisions of this Section 3 to the contrary, and except as otherwise provided in Section 13.2(c), Participant may immediately terminate the Registration Application and this Agreement in the event that Participant has provided written notice describing a material breach of the Registration Application or this Agreement by HIE Networks and HIE Networks fails to cure such breach to the reasonable satisfaction of the Participant within fifteen (15) days of HIE Networks receipt of such notice, or immediately upon written notice in the event HIE Networks breaches its obligations under the Business Associate Agreement between the parties. HIE Networks-HIN-TermsOfUse

5 3.4 HIE Networks Right to Terminate the Registration Application and This Agreement For Cause. (a) HIE Networks may immediately terminate the Registration Application and this Agreement in the event that HIE Networks has provided written notice describing a breach of the Registration Application and/or this Agreement by Participant, including without limitation, Participant s failure to timely pay funds when due, and Participant fails to cure such breach to the reasonable satisfaction of the HIE Networks within fifteen (15) days of Participant s receipt of such notice. (b) HIE Networks may also terminate this Agreement and the Registration Application in the event of any cause beyond the reasonable control of HIE Networks making it commercially impracticable and/or impossible to perform under this Agreement (a Material Adverse Event ). In the case of such Material Adverse Event, HIE Networks agrees to provide written notice to the Participant describing the Material Adverse Event, and its effect on HIE Networks performance. Following such notice from HIE Networks, the parties agree to negotiate in good faith to revise, reform and/or restructure this Agreement, the Registration Application and/or the relationship among the parties in order to make the continued provision of services viable. If the parties are unable to agree, within thirty (30) days after actual knowledge is received by each party of a Material Adverse Event, on how to revise, reform and/or restructure this Agreement, the Registration Application and/or their relationship to be in full compliance with applicable law, this Agreement shall terminate immediately, and HIE Networks and Participant shall have no continuing financial or other obligations to each other except as otherwise provided in this Agreement, the Registration Application, the Business Associate Agreement, and the Agency Agreement. 3.5 Regulatory Changes. Should any federal or state statute, regulation, or rule, now existing or enacted or promulgated after the effective date of this Agreement and the Registration Application be enacted or interpreted by any court or governmental body or agency having jurisdiction over any party so as to: (a) cause this Agreement and/or the Registration Application to be unlawful; (b) materially and adversely affect the ability of any party to lawfully perform any provision of this Agreement and/or the Registration Application; or (c) materially and adversely affect the benefits anticipated by HIE Networks or Participant (a Material Adverse Regulatory Event ), then and in such event HIE Networks or Participant may notify the other party of such change and the effect of the change. Thereafter, the parties agree to negotiate in good faith to revise, reform and/or restructure this Agreement, the Registration Application and/or the relationship among the parties in order to fully comply with applicable law. Any such revision, reformation, and/or restructuring shall preserve, to the fullest extent possible, the underlying economic and financial arrangements between the parties. If the parties are unable to agree, within thirty (30) days after actual knowledge is received by each party of a Material Adverse Regulatory Event, on how to revise, reform and/or restructure this Agreement, the Registration Application and/or their relationship to be in full compliance with applicable law, this Agreement shall terminate immediately, and HIE Networks and Participant shall have no continuing financial or other obligations to each other except as otherwise provided in this Agreement, the Registration Application, the Business Associate Agreement, and the Agency Agreement. HIE Networks-HIN-TermsOfUse

6 3.6 Effect of Termination. Upon any termination of this Agreement, Participant shall immediately lose any and all rights to use the HIE Networks HIN and/or HIE Networks Services. Provisions of this Agreement identified in Section 3.7 (Survival Provisions) which survive termination under the terms thereof shall continue to apply to HIE Networks and/or the former Participant and its Authorized Users following termination. Following termination of this Agreement all Data stored by Participant on the HIE Networks HIN shall be maintained exclusively for the administrative and technical purposes of the HIE Networks HIN; provided, however, that the parties acknowledge and agree that any such Data that is maintained shall remain the exclusive property of the former Participant; provided, further, that HIE Networks agrees to maintain all such Data in accordance with applicable federal and state laws. 3.7 Survival Provisions. The following provisions of this Agreement shall survive any termination of this Agreement: Sections 3.5, 5, 7, 8, 9, 12, 13 & 15. In addition, the obligations contained in Section 14 for retention of insurance for a certain period of time following termination of this Agreement shall survive as well. 4 AUTHORIZED USERS. 4.1 Identification of Authorized Users. Participant shall provide HIE Networks with a list, in a medium and format approved by HIE Networks, identifying all of Participant s Authorized Users, together with the information and any items required regarding Authorized Users pursuant to the Participant s Registration Application. Said list may be updated from time to time by the Participant by providing written notice to HIE Networks. This list shall enable HIE Networks to establish a unique identifier for each Authorized User. Participant shall notify HIE Networks, within 72 hours of termination of employment or affiliation of an Authorized User of Participant and take steps within its systems and control to terminate the former Authorized User s access to the HIE Networks HIN or HIE Networks Services. Following receipt of notice from the Participant, HIE Networks shall take actions required to terminate the individual s access to the HIE Networks HIN and HIE Networks Services. Participant shall be solely liable for any acts or omissions related to its failure to properly terminate a former Authorized User s access and/or failing to notify HIE Networks within the appropriate time frame; provided, however, that Participant shall not be liable for any damages directly or indirectly arising from or relating to acts or omissions by HIE Networks and/or any subcontractor thereof in terminating the individual s access following proper notice by Participant hereunder. 4.2 Passwords and Other Security Mechanisms. Based on the information provided by Participant for its Authorized Users, HIE Networks shall issue a user identifier and other security measures required by HIE Networks from time to time, to each Authorized User. Upon issuance by HIE Networks of a user identifier and other security measures to the Participant, the Authorized User shall be authorized to access the HIE Networks HIN and use HIE Networks Services consistent with the rights of Participant under its Registration Application and the Authorized User s role(s) for the Participant. If HIE Networks provides the user identifier and any HIE Networks-HIN-TermsOfUse

7 other security measure(s) to the Participant for implementation with Participant s Authorized Users, the Participant shall be responsible for and oversee the implementation and use of the user identifier and any other measures appropriate to the Authorized User. Any violation by an Authorized User of this Agreement shall be cause for suspension or termination of the Authorized User s access to the HIE Networks HIN and use of HIE Networks Services. Participant shall notify HIE Networks of the removal of an Authorized User from its list of Authorized Users within 72 hours of such removal. Participant shall take such actions as are appropriate to terminate the individual s access to the HIE Networks HIN and HIE Networks Services. Following receipt of notice from the Participant, HIE Networks shall take actions required to terminate the individual s access to the HIE Networks HIN and HIE Networks Services as described in greater detail in Section No Use by Other than Authorized Users. Participant agrees to restrict access to the HIE Networks HIN and, if applicable, use of HIE Networks Services, to only those Authorized Users identified by Participant to HIE Networks in accordance with Section Responsibility for Conduct of Participant and Authorized Users. Participant shall be solely responsible for all acts and omissions of the Participant and jointly and severally liable for all acts and omissions of the Participant s Authorized Users and all other individuals who access the HIE Networks HIN and/or use HIE Networks Services either through the Participant or by use of any password, identifier, mechanism, or log-on received or obtained from the Participant or any of the Participant s Authorized Users; provided, however, that in no event shall Participant be liable for damages directly or indirectly arising out of or resulting from the acts or omissions of HIE Networks and/or any of its subcontractors. 5 PARTICIPANT DATA USE RIGHTS AND OBLIGATIONS. 5.1 Data Ownership The HIE Networks HIN and HIE Networks Services are composed of conveyance and aggregation software which does not alter or modify PHI or data that is transmitted or received via the HIE Networks HIN. Specifically, the HIE Networks HIN provides properly authorized Participants with access to unified electronic views of available patient data. The Parties explicitly agree that neither HIE Networks, nor any subcontractor thereof, has any ownership rights whatsoever to the data submitted by a Participant, residing in the HIE Networks HIN or other such data otherwise made available to HIE Networks by Participant as a result of the Parties relationship pursuant hereto, including, without limitation, any and all PHI, patient lists, audit logs or audit information, pharmacy, admissions, laboratory, diagnostic, treatment, business, financial, or other data or intellectual property of the Participant, regardless of whether such data is identifiable to a patient, patients, or Participant, or whether such data is a compilation, derivative, aggregation, or extrapolation in whole or in part from or of any of the aforesaid data (collectively, the Data ). All Data submitted by each Participant or in any repository maintained on behalf of such Participant is the Data of the Participant that provided such Data. Neither HIE Networks, nor any subcontractor thereof, shall have any right to use the Data, except as provided herein, without the express written approval of the Participant that provided such HIE Networks-HIN-TermsOfUse

8 Data. Excepting the foregoing, HIE Networks may collect and use technical information for the limited purposes of improving HIE Networks products or to provide Participant with customized services or technologies. Any new or additional Data produced by the HIE Networks HIN software is the exclusive property of the Participant that submitted the initial Data. The parties explicitly acknowledge and agree that this Section 5.1 is of the essence of the Agreement between the parties, and any breach by HIE Networks, or any subcontractor thereof, of the terms hereof shall be deemed a material breach of this Agreement. This Section 5.1 shall survive the termination of this Agreement and shall remain in full force and effect thereafter. 5.2 Grant of Rights. HIE Networks grants to each Participant a non-exclusive, nontransferable, limited right to access and use, and allow its Authorized Users to access and use, the HIE Networks HIN and HIE Networks Services consistent with the Participant s Registration Application and subject to the Participant s full compliance with this Agreement. HIE Networks retains all other rights to the HIE Networks HIN and all components thereof. No Participant shall obtain any rights to the HIE Networks HIN except for the limited rights to use the HIE Networks HIN requested by the Participant in its Registration Application and as expressly granted by this Agreement. 5.3 Permitted Uses. Participant may use the HIE Networks HIN and HIE Networks Services only for the permitted uses described in this Agreement and as allowed by applicable law including, but not limited to, the HIPAA privacy and security regulations. Further a Participant shall specifically not use or permit the use of the HIE Networks HIN or HIE Networks Services for any prohibited use not authorized in the Participant s Registration Application. 5.4 Prohibited Uses. Without limiting the prohibition against any use not permitted under Section 5.3 above, Participant agrees that the following uses are prohibited: (a) No Services to Third Parties. Participant agrees to limit its use of the HIE Networks HIN and HIE Networks Services only for the Participant s own account, and shall not allow access to any third parties or use any part of the HIE Networks HIN or HIE Networks Services to provide separate services or sublicenses to any third party, including without limitation providing any service bureau services, data processing services, or equivalent services to a third party. (b) No Use for Comparative Studies. Participant shall not use the HIE Networks HIN or any HIE Networks Services (i) to aggregate data to compare or analyze the performance of other participants, or (ii) otherwise utilizing data of other participants for purposes not expressly approved under this Agreement. (c) Marketing. Participant shall not use the HIE Networks HIN or any HIE Networks Services for purposes of marketing health services or products. HIE Networks-HIN-TermsOfUse

9 5.5 No Medical Advice Participant agrees and acknowledges that HIE Networks does not offer medical advice through the HIE Networks HIN or HIE Networks Services. Any data accessed through the HIN is for informational purposes only, and is not intended to cover all possible uses, directions, precautions, drug interactions, or adverse effects. 5.6 Reporting Fraudulent Activity or Inappropriate Site Usage or Behavior Should Participant become aware of or suspect fraudulent or unlawful activity or any other activity that threatens the security of the HIE Networks HIN, its content, operations or any part thereof, or appears to be a misuse or unauthorized access to any confidential or medical information, Participant agrees to immediately report the activity to HIE Networks.,. 5.7 Reporting Certain Abuses to Law Enforcement Authorities; Legal Process and Notifications HIE Networks reserves the right to report to local, national or international law enforcement agencies abuse and violations of this Agreement, including, without limitation, those that may compromise the safety of Participants or Authorized Users or the subjects of information sent through the HIE Networks HIN. Except as otherwise provided herein, nothing in this Agreement shall be construed to prohibit or restrict HIE Networks from complying with any applicable laws, law enforcement requests, subpoenas, legal requirements and legal reporting obligations relating to Participant s or another participant s use of the HIE Networks HIN. In the event that HIE Networks receives law enforcement requests related to a Participant s use of the HIE Networks HIN or a Participant s Data (collectively, the Participant s Information ), HIE Networks agrees, to the extent not prohibited by applicable law, to provide prompt notice to the subject Participant of any such law enforcement requests. If HIE Networks is requested or required as a result of a judicial or regulatory proceeding (by oral questions, interrogatories, request for information or documents, subpoena, civil investigative demand or similar process) to disclose any of Participant s Information, HIE Networks agrees to provide Participant with prompt notice thereof so that Participant may seek an appropriate protective order and cooperate in HIE Networks efforts with respect thereto. If, in the absence of a protective order, HIE Networks is compelled as a matter of law to disclose any portion of Participant s Information, HIE Networks may disclose to the person or entity compelling disclosure only the portion of Participant s Information that is required by law to be disclosed (in which case, prior to such disclosure, Participant will be advised and consulted as to such disclosure and the nature and wording of such disclosure) and HIE Networks will use all reasonable efforts to obtain confidential treatment therefor. 6 PROVISION OF DATA BY PARTICIPANT. 6.1 Provision of Data. Participant may provide the data to be used and/or appropriately disclosed through the HIE Networks HIN. Participant represents and warrants that, to the best of its knowledge, storing, providing or transmitting data, including without limitation PHI, on or through the HIE Networks HIN does not violate any rights, including without limitation copyrights, of any third parties. Further Participant HIE Networks-HIN-TermsOfUse

10 represents and warrants that it is authorized or otherwise allowed by applicable law to store, provide or transmit Data, including without limitation PHI, on or through the HIE Networks HIN. HIE Networks represents and warrants to Participant that any Data provided by Participant and stored in HIE Networks HIN will be stored in such a manner that includes commercially reasonable security precautions and otherwise complies with applicable federal and state laws, including, without limitation, HIPAA and its privacy regulations and security regulations (as defined therein), and the HITECH Act. 6.2 Measures to Assure Accuracy of Data. Participant shall use reasonable efforts to ensure that all Data, including without limitation PHI, it provides to the HIE Networks HIN is accurate, free from serious error, reasonably complete, and provided in a timely manner. 6.3 License. Subject to the terms and conditions of this Agreement, the Participant grants to HIE Networks a perpetual, fully-paid, worldwide, non-exclusive, royalty free right and license (a) to sub-license and/or otherwise permit other participants to access through the HIE Networks HIN and use all PHI provided by the Participant pursuant to this Agreement and applicable law, and (b) to use such PHI to carry out the HIE Networks duties under this Agreement, including without limitation system administration, testing, problem identification and resolution, management of the HIE Networks HIN System, and otherwise as the HIE Networks determines is necessary and appropriate to comply with and carry out its obligations under all applicable federal, state and local laws and regulations. HIE Networks shall also have such right and license with respect to Data other than PHI submitted by Participant, subject to any express limitations pertaining to such Data contained in the Participant s Registration Application and/or this Agreement. 6.4 Limitations on Use of PHI. Data, including without limitation PHI, provided by a Participant hereunder shall not be used for any purpose other than one expressly permitted under this Agreement. Without limiting the foregoing, neither Participant, nor HIE Networks, shall make uses of the Data or other participant s data prohibited by this Agreement or by applicable law, and HIE Networks shall contractually obligate all other participants to the same restrictions on use of the Data or other participant s data. 7 SOFTWARE PROVIDED BY HIE NETWORKS. 7.1 Description. HIE Networks shall provide to each Participant access to software required to access the HIE Networks HIN (i.e., beyond a web browser) and, if necessary, use the HIE Networks Services which the Participant has registered to receive, as more particularly described in Exhibit A (the Associated Software ) attached to and hereby incorporated within this Agreement. HIE Networks-HIN-TermsOfUse

11 7.2 Grant of License. HIE Networks grants to each Participant a non-exclusive, personal, nontransferable, limited license to use the Associated Software for access to or use of the HIE Networks HIN. Such grant of license is contingent upon Participant s ongoing adherence to the terms and conditions of this Agreement. To the extent the HIE Networks license or rights in any Associated Software are subject to an agreement with or grant from any third party, the license and rights received by the Participant are expressly subordinate to and limited to the extent of such license and rights of the HIE Networks received from the third party. If, for any reason, the license or rights of HIE Networks provided by a third party are limited or terminated, the rights of the Participant shall also be so limited or terminated. 7.3 Restrictions on Use The Participant agrees that the Associated Software contains proprietary and confidential information that is protected by applicable intellectual property and other laws. Except for information provided by Participant all content on the HIE Networks HIN is copyrighted by HIE Networks. The Associated Software is owned by or licensed to HIE Networks and is protected by copyright laws. 7.4 Modifications; Derivative Work. Participant shall not modify, reverse engineer, decompile, disassemble, re-engineer or otherwise create or permit or assist others to create the Associated Software or the HIE Networks HIN System, or to create any derivative works from the Associated Software or the HIE Networks HIN System. The Participant shall not modify the Associated Software or combine the Associated Software with any other software or services not provided or approved by HIE Networks. 7.5 Third-Party Software and/or Services. The Associated Software includes certain third-party software and services, which may require that a Participant enter into separate subscription, licensing or other agreements with third-party vendors, or which may be open-source. Each Participant shall execute such agreements as may be required for the use of such software or services, and to comply with the terms of any license or other agreement held by the HIE Networks from third parties, and any open-source or similar licenses, relating to third-party products included in Associated Software. 7.6 Reservation of Rights and Ownership. The Associated Software is being licensed, not sold to Participant. HIE Networks reserves all rights not expressly granted to Participant in this Agreement. HIE Networks owns the title, copyright, and other intellectual property rights in the Associated Software. This license does not grant Participant any rights to HIE Networks trademarks Links HIE Networks may provide, or third parties may provide, links to other World Wide Web sites or resources. HIE Networks has no control over such sites and resources. Participant agrees that HIE HIE Networks-HIN-TermsOfUse

12 Networks is not responsible for the availability of such external sites or resources, and is not responsible or liable for any content, advertising, products, or other materials on such sites. HIE Networks provides these links and access to third-party sites and services, if authorized, only as a convenience, and the inclusion of any link or access does not imply any endorsement by HIE Networks of the third-party site or service. 7.8 Media Elements The Associated Software may include certain photographs, clip art, shapes, animations, sounds, music and video clips that are identified in the Associate Software as media elements. Participant may copy the media elements, display and distribute them, including elements on Participant s web sites, but Participant is not licensed to sell, license or distribute copies of the media elements by themselves or as part of any collection, product or service if the primary value of the product or service is in the media elements, or create obscene or scandalous works. 7.9 Documentation The proprietary documentation that accompanies the Associated Software is licensed for internal, noncommercial purposes only. Participant is not licensed or in any way authorized to sell, resell, license, rent, lease, lend, or otherwise transfer for value, the documentation, or distribute the documentation as part of any product or service Templates The Associated Software may include document templates. Participant is not licensed or in any way authorized to sell, resell, license, rent, lease, lend, or otherwise transfer for value, the templates, or distribute the templates as part of any product or service Internet-Based Services. Participant may not use any HIE Networks internet-based services associated with the Associated Software in any manner that could damage, disable, overburden, or impair such services or interfere with any other third party's use and enjoyment of them. Participant may not attempt to gain unauthorized access to any service, account, computer system or network associated with HIE Networks internet-based services. 8 CONFIDENTIALITY AND PROTECTED HEALTH INFORMATION. 8.1 Compliance with HIPAA and Policies and Procedures. HIE Networks and each Participant shall comply with all applicable standards for the confidentiality, security, and use of PHI under HIPAA and the HITECH Act, and any related requirements under other applicable federal, state, and local law. Participant agrees to report promptly, within 72 hours, to HIE Networks any breach of the confidentiality of the PHI being transmitted, stored or received by HIE Networks (e.g., a breach which is not an incidental disclosure permitted under 45 CFR (a)(1)(iii)) of which it becomes aware. The parties acknowledge and agree that any breach of this Section 8.1 by a Participant or HIE Networks will cause irreparable injury and damages to HIE HIE Networks-HIN-TermsOfUse

13 Networks or Participant, as applicable, for which there is no adequate remedy at law, and as to which money damages cannot be readily ascertained. Accordingly, HIE Networks and each Participant hereby consents in such event to the granting of immediate injunctive relief against any continuing breach, without the necessity of posting bond, together with attorneys fees and costs reasonably incurred in enforcing this provision. In the event of a breach of confidentiality involving the disclosure of an individual s unencrypted or unsecure PHI that is being transmitted, stored or received by HIE Networks the Participant and HIE Networks shall promptly meet and determine what notification, if any, is required under 45 CFR et seq., and , F.S., or other applicable law. 8.2 Additional Requirements. HIE Networks and each Participant agree to enforce the confidentiality provisions of this Agreement by appropriately disciplining individuals within HIE Networks organization or each Participant s organization, as applicable, who violate the confidentiality of PHI pursuant to HIE Networks or each Participant s respective confidentiality and disciplinary policies. Such discipline may include, but shall not be limited to: warnings; suspensions; termination; training; or modification, suspension, or revocation of Authorized User or other privileges. 8.3 Business Associate Agreement. Due to the nature of the services provided by HIE Networks, HIE Networks is considered a Business Associate of Participant, as that term is defined in 45 CFR , and for purposes of the HITECH Act. Accordingly, the parties will enter into that certain Business Associate Agreement attached to the Registration Application. 9 OBLIGATIONS OF PARTICIPANT. 9.1 Compliance with Laws and Regulations. Without limiting any other provision of the Registration Application or this Agreement relating to the parties compliance with applicable laws and regulations, Participant agrees to comply with applicable federal, state, and local laws, ordinances, and regulations relating to its use of the HIE Networks HIN and HIE Networks Services. 9.2 System Security. Participant shall implement reasonable internal security measures with respect to its computer systems the will be utilized to connect Participant to the HIE Networks HIN and to use HIE Networks Services. Participant shall also adopt and implement at least the minimum security measures required by the HIPAA security regulations. 9.3 Software and/or Hardware Provided by Participant. Participant shall be responsible for procuring and maintaining all equipment and software (other than the Associated Software) necessary for it to access the HIE Networks HIN and use HIE Networks HIE Networks-HIN-TermsOfUse

14 Services (including the Associated Software) and provide to the HIE Networks all information required to be provided by the Participant ( Participant s Required Hardware and Software ). Participant s Required Hardware and Software shall conform to the HIE Networks then-current specifications. Current specifications are listed in Exhibit A, and HIE Networks also agrees that it shall furnish a list of current specifications, including, without limitation, compatible EHR platforms and generations thereof, to each Participant prior to the commencement of this Agreement. HIE Networks may propose commercially-reasonable changes to the specifications from time to time and will provide Participant a reasonable opportunity to comment on its ability to implement the proposed changes prior to HIE Networks making a final decision to proceed with the change. If HIE Networks decides to implement the change, it shall provide reasonable prior notice to Participant. As part of the Participant s obligation to provide Participant s Required Hardware and Software, the Participant shall be responsible for ensuring that all the Participant s computers to be used to interface with the HIE Networks HIN are properly configured and maintained, including but not limited to the operating system, web browser(s), and Internet connectivity. 9.4 Viruses and Other Threats. In providing any Data to the HIE Networks HIN, the Participant shall use reasonable efforts to ensure that the medium containing such Data does not include, and that any method of transmitting such Data will not introduce, any program, routine, subroutine, or Data which will disrupt the proper operation of the HIE Networks HIN or any part thereof or any hardware or software used by HIE Networks in connection therewith, or which, upon the occurrence of a certain event, the passage of time, or the taking of or failure to take any action will cause the HIE Networks HIN or any part thereof or any hardware, software, or data used by HIE Networks or any other participant in connection therewith, to be destroyed, damaged, or rendered inoperable. Participant shall further use reasonable efforts to prevent unauthorized access to its computers used to access the HIE Networks HIN, which efforts shall include, without limitation, the use of access appropriate identification and security measures and the prompt installation of all software vendor-recommended security updates (subject to Participant s standard acceptance testing). 9.5 Training. Participant shall provide appropriate and adequate training to all of the Authorized Users to familiarize them with their obligations pursuant to their use of the HIE Networks HIN and HIE Networks Services. In addition, Participant represents that it has trained its workforce in the requirements of applicable laws and regulations governing the confidentiality, privacy, and security of health information, including without limitation requirements imposed under HIPAA. 10 HIE NETWORKS OPERATIONS AND RESPONSIBILITIES Compliance with Registration Application and this Agreement. HIE Networks shall require that all other participants accessing the HIE Networks HIN enter into a Registration Application and this Agreement prior to allowing such other participant(s) to access the HIE Networks HIN. HIE Networks-HIN-TermsOfUse

15 10.2 Use of Contractors. HIE Networks shall administer the HIE Networks HIN and HIE Networks Services and may delegate responsibilities related to such to one or more subcontractors. Consistent with its obligations under Section 10, HIE Networks shall obtain assurances from its subcontractors that only specifically authorized representatives of the subcontractor shall be granted access to the HIE Networks HIN in connection with the subcontractor s responsibilities. HIE Networks shall require each of its subcontractors that have access to the HIE Networks HIN, or the data therein, to enter into an agreement containing substantially similar terms to those set forth in that certain Business Associate Agreement between HIE Networks and Participant. Participant acknowledges and agrees that access to Data (including aggregate Data) shall be granted to the HIE Networks and its subcontractors for purposes of HIE Networks functions and obligations under this Agreement, subject to the terms of the Registration Application, this Agreement, and the agreement described in the preceding sentence. HIE Networks acknowledges and agrees that it shall be responsible for its subcontractors and agents Training. HIE Networks may, if requested and at additional expense, provide training to Authorized Users identified by the Participant to serve as internal trainers for the Participant and thereafter as HIE Networks determines appropriate. Training will include instruction on access and use of the HIE Networks HIN and HIE Networks Services. HIE Networks shall also provide such user manuals and other resources HIE Networks determines appropriate to support the HIE Networks HIN and HIE Networks Services. HIE Networks will work with each Participant on a training plan for Participant to train new or additional Authorized Users when added by the Participant Service Levels and Support. Service levels. HIE Networks takes commercially reasonable measures so that the HIE Networks HIN is available without significant interruption, except for scheduled down time needed to help maintain effective operation of the HIN. However, difficulties with hardware, software, and equipment as well as services supplied by others may result in service interruptions. HIE Networks shall use commercially reasonable efforts to mitigate the effects of any such service interruptions. HIE Networks shall provide, by telephone, , and/or other means, support and assistance in resolving difficulties in accessing and using the HIE Networks HIN and HIE Networks Services during hours and on days as provided in Exhibit B ( Service Levels & Support ) Audits and Reports Access Reporting to Participant. Upon request, HIE Networks shall provide to each Participant statistical summaries indicating the number of accesses to the requesting Participant s own PHI by accessing site and including a list of all queries to the HIE Networks HIN by patient names and date of birth. The foregoing summaries shall be provided at no cost. Additional detail about a Participant s own PHI may be obtained by a Participant as made available by the HIE Networks under the Policies and Procedures. HIE Networks-HIN-TermsOfUse

16 10.6 Health Law Compliance. The Registration Application and this Agreement are at all times subject to applicable federal and state laws, rules and regulations, including, but not limited to the Social Security Act, the rules, regulations and policies of the U.S. Department of Health and Human Services, all public health and safety provisions of state law and regulations, and the rules and regulations of Florida s Agency for Health Care Administration and Department of Health. HIE Networks shall develop policies and procedures to ensure compliance with such federal and state laws, rules, and regulations. 11 FEES AND CHARGES Agreed-Upon Fees. The applicable fees for the use of the HIE Networks HIN and/or HIE Networks Services are specified in Participant s Registration Application Service Fees. Participant shall pay to the HIE Networks service fees for the HIE Networks HIN and those HIE Networks Services for which the Participant has registered. Any such service fees shall be subject to refund during any period of time during with HIE Networks shall be in material breach of the Registration Application and/or this Agreement. In the event of a dispute as to the refund of any services fees to Participant the parties agree to utilized the dispute resolution procedures in Section 15 of the Agreement Changes to Fee Schedule. Changes to Fee Schedule shall be set forth in the Participant s Registration Application Miscellaneous Charges. Participant also shall pay HIE Networks charges for all goods or services that the HIE Networks provides at the Participant s request that are not specified in the HIE Networks then-current fee schedule ( Miscellaneous Charges ). Such Miscellaneous Charges shall be evidenced by a separate writing agreed to by the parties Payment. Participant shall pay all Service Fees and any Miscellaneous Charges within thirty (30) days following the documented date of mailing of invoice by HIE Networks sent to the Participant s address as listed on Participant s Registration Application Late Charges. Service Fees and Miscellaneous Charges not paid to HIE Networks within thirty (30) days following the due date are subject to a late charge of five percent (5%) of the amount owed and interest thereafter HIE Networks-HIN-TermsOfUse

17 at the rate of one and one-half percent (1½%) per month on the outstanding balance, or the highest amount permitted by law, whichever is lower Suspension of Service. Failure to pay Service Fees and Miscellaneous Charges within thirty (30) days following the due date may result in suspension or termination of the Participant s access to the HIE Networks HIN and/or use of HIE Networks Services. A reconnection fee as shall be assessed to re-establish connection after suspension or termination due to non-payment Taxes. All Service Fees and Miscellaneous Charges shall be exclusive of federal, state, municipal, or other government excise, sales, use, occupational, or similar taxes existing as of the date of this Agreement or enacted in the future. Participant shall pay any tax that HIE Networks may be required to collect or pay, now or at any time in the future, and that are imposed upon the sale or delivery of items or services provided pursuant to this Agreement Other Charges and Expenses. Participant shall be solely responsible for any other charges or expenses Participant incurs in connection with the HIE Networks HIN or HIE Networks Services, including without limitation, telephone and equipment charges, and fees charged by third-party vendors of products and services. 12 PROPRIETARY INFORMATION. HIE Networks and Participant shall comply with the terms and conditions contained in this Agreement with respect to prohibited uses and requirements for non-disclosure of confidential and proprietary information of HIE Networks and Participant, respectively. HIE Networks agrees that no aggregate Data concerning a Participant s operations (e.g., data on patient volume, charges to patients or thirdparty payers and similar reimbursement data, or Participant practice patterns) will be provided to other participants or third parties or published in any form or medium without the prior written consent of the subject Participant, which consent shall be in the sole discretion of the subject Participant. All such permitted uses and disclosures must be accomplished in a manner that complies with HIPAA, the HITECH Act, and other applicable law. 13 WARRANTIES, DISCLAIMERS, AND LIMITATIONS OF LIABILITY Carrier lines. Participant acknowledges that the use of the HIE Networks HIN and receipt of HIE Networks Services is to be provided over various facilities and communications lines, and information will be transmitted over local exchange and internet backbone carrier lines and through routers, switches, and other devices (collectively, carrier lines ) owned, maintained, and serviced by third-party carriers, utilities, and internet service providers, all of which are beyond the HIE Networks control. HIE Networks HIE Networks-HIN-TermsOfUse

18 assumes no liability for or relating to the integrity, privacy, security, confidentiality, or use of any information while it is transmitted on the carrier lines, or any delay, downtime, failure, interruption, interception, loss, transmission, or corruption of any data or other information attributable to transmission on the carrier lines. Use of the carrier lines is solely at Participant s risk and is subject to all applicable local, state, national, and international laws Warranties. (a) Confidentiality: HIE Networks warrants that it will maintain, and will ensure than any of its subcontractors or agents maintain, the confidentiality of Participant s Data. (b) License: HIE Networks warrants that it owns or has the right to license the services and products described in the Registration Application and this Agreement. (c) Performance: HIE Networks warrants that: (i) it will satisfactorily perform all of its duties and responsibilities under this Agreement; (ii) each of the HIE Networks HIN and HIE Networks Services will function in conformity with its respective specifications; and (iii) during the Term, provided that the Participant is utilizing a certified electronic health records technology (as certified by the Office of the National Coordinator for Health Information Technology or any successor governmental agency or authority charged with the certification thereof), the HIE Networks HIN shall have the capability to meet all of the applicable benchmarks for meaningful use under the Medicare and Medicaid Electronic Health Records Incentive Programs under the provisions of the HITECH Act. Notwithstanding the foregoing, in the event of a breach of the warranty provided under Section 13.2(c)(iii) hereof, the Participant s sole remedy shall be the immediate termination of this Agreement and the Registration Application. (d) Compliance with Laws: HIE Networks warrants that, at all times, the HIE Networks HIN shall be operated in such a manner, and the relationship among the parties hereto shall be structured in such a manner, so as to permit the parties hereto to fully comply with any and all federal, state, and local laws rules and regulations. HIE Networks acknowledges and agrees that it shall use its best efforts to notify Participant and its Agent if appointed, immediately in the event that legislation is enacted, a rule or regulation is promulgated, or a judicial or administrative decision is rendered that affects, or may affect, the legality of the Registration Application, this Agreement, the Appointment of Agent Agreement, and/or the Business Associate Agreement or adversely affect the ability of either party to perform its obligations or receive the benefits intended hereunder (an Adverse Event ). HIE Networks notice shall, to the extent reasonably determinable, specify the nature of the Adverse Event and the effect that it has, or anticipated effect that it will have, upon the HIE Networks HIN and/or the relationship among the parties. HIE Networks and/or the Participant shall, within thirty (30) days following notice by HIE Networks of such Adverse Event (or sooner if required by law), negotiate in good faith a substitute agreement to this Agreement, the Registration Application, and/or the Business Associate Agreement (as applicable) which will carry out the original intention of the parties to the extent possible in light of such legislation, rule or regulation, or decision. If no new agreement is reached within thirty (30) days of receipt of such notice (or sooner if required by law), then either party may terminate this Agreement upon an additional ten-days (10-days ) written notice (or immediately if required by law). HIE Networks-HIN-TermsOfUse