eclinicalworks Hosted Contract Addendum Summary

Transcription

1 eclinicalworks Hosted Contract Addendum Summary ARTICLE SECTION SUMMARY COMMENT ARTICLE I: TRANSACTIONS 1.1 Definitions A defined term occurring in both the License Agreement and the Addendum will have the meaning assigned to it under the Addendum. Terms capitalized but not defined in the Addendum, but defined in the License Agreement, will have the meaning assigned in the License Agreement 1.2 Scope and Structure of Agreement 1.3 & 1.4 Addition and Removal of Users: Reorganization The Addendum and License Agreement (collectively, the "Agreement") and the Order Form in Schedule 1.2 to the Addendum govern the provision and use of the hosted solution and all related services Practice may add or remove Users by written notice to Company. The Order Form may provide subscription fee adjustments for adding/removing Users. If the Order Form does not set forth an additional subscription fee, then no additional subscription fee will apply. If there is a reorganization, Practice can assign the Agreement to its successor at no charge and with no change in pricing or other terms 1.5 Services Company will provide the implementation and hosting services specified in the Addendum, Order Form and SOW. The SOW may detail additional professional services to be provided by Company 1.6 Scheduling The parties may agree on milestone and deadline target dates (e.g., completion of a particular phase, availability or acceptance of the program or cut-over date). These dates must be set forth in the Order This provision, together with controlling article provisions described in Sections 1.11 and 17.2, ensure that the more favorable terms of the Addendum govern Order Form structure allows for additional services and products to be provided in the future under the Addendum's terms These provisions allow a provider to address the coming and going of doctors in its practice and any reorganizations it may undergo without losing the favorable pricing and terms of the Addendum This requires all necessary services to be set forth so there are no surprises This gives flexibility for the Company to set target dates based on the characteristics of a practice while still allowing the

2 Form or its Specifications or SOW. Company must use all reasonable efforts to meet the agreed-upon target dates and notify Practice as soon as Company believes that a particular target date will not be met. If Company fails (or appears likely to fail) to meet a deadline for any reason attributable to the fault of Company, Company must immediately notify Practice and shall provide additional persons or other resources, as requested by Practice and at no additional charge to Practice, to complete the task involved within the stated deadline or, if the deadline is missed, in as timely a manner as possible. Company must commence implementation services no later than 60 days after contract is signed unless Practice requests a later date 1.7 Rights in Data Practice owns its data and Company can't use it for any purpose other than providing services under the Agreement. Upon expiration or termination of the Agreement, or upon Practice s request at any time, Company shall promptly provide an electronic copy of all such data to Practice in the format and with the file layouts reasonably requested by Practice, at no additional charge to Practice. If Practice requests at any time, Company must destroy all copies of Practice data in Company s possession or control. Company may not withhold any Practice data to 1.8 Safeguarding Practice Data resolve a dispute. Company must establish and maintain security safeguards to protect Practice data. Company must reconstruct Practice data it loses, destroys or alters. 1.9 Security Describes specific security methods and procedures Company must employ to protect Practice data 1.10 Gen l Requirements Company will make the program available to Practice via the Internet based on a Software As A Service practice to know when those dates will be met For hosted solutions, such safeguards are critical and more stringent than in non-hosted solutions For hosted solutions, such safeguards are critical and more stringent than in non-hosted solutions

3 basis Practice will procure the necessary environment to use the program This section also describes Company s responsibilities and Practice s responsibilities specific to the following: Hosting services Company will host on Company s computer systems a website that will offer the program and will provide other hostingrelated services User IDs and Passwords - Company manages all user ids and passwords Practice Network Access If Company accesses Practice s network, it must use such access solely to meet its obligations under the Agreement. URL Ownership Each party retains ownership of its URLs Website User Data All information relating to website visitors, including user data, are the sole property of Practice Acceptable Use Policy Practice shall use the hosted applications only for lawful purposes and shall be responsible for use of the website by its Registered Users and Company reserves the right to investigate suspected violations of the Agreement. System Security Practice shall use the program and the Company s services in a way that does not compromise system security System Monitoring Company has the right to monitor the system electronically from time to time and, in certain circumstances, to access and disclose information Warranty of Content Parties warrant that they

4 ARTICLE II: IMPLEMENTATION SERVICES will not use website in violation of law Ownership of Data Data and information used in the program that specifically relates to patients, patient care or physician procedures or diagnosis shall be owned by Practice, provided that Company may use such data to improve the quality its services References Company may identify Practice as a user of the data in promotional materials Sponsored Ads If customer selects Package 4, Practice allows Company to have sponsored ads and services on Patient Portal, eclinicalworks P2P and eclinicalmobile 1.11 Controlling Provisions As stated in Section 1.11 and similar sections at the end of most of the Articles, the terms of the Addendum supersede those in the License Agreement or in an Order Form, SOW, or other document 2.1 Implementation Services Implementation services must include those services necessary to implement the program. The parties must organize a mutually acceptable implementation work plan and attach it to the Order Form or SOW The implementation work plan must spell out the key responsibilities of the parties and the critical dates associated with the implementation of the program. Company must use reasonable best efforts to cooperate with Practice s service partners and LECs during implementation. 2.2 Professional Services Company will configure program and other deliverables and perform services outlined in the SOW. 2.3 Training Company shall sufficiently train personnel designated by Practice so that such personnel will be proficient in the use of the program before the program cut-over dates Company must conduct training classes for all This prevents the Company from undercutting provider-friendly terms in the Addendum through other language in the License Agreement or an attachment to the Addendum The SOW should eliminate any surprises to the practice with regards to hidden fees or services. The amount and level of training will be based on the needs of the practice and outlined in the SOW. These provisions ensure that Company is complying with the

5 ARTICLE III: SUBSCRIPTION LICENSE Practice personnel according to their assigned class of service/job functions or other classification to be determined by Practice within the scope of the implementation work plan and/or SOW. All training sessions must be conducted at a site designated by Practice, using software programs identical (both physically and in actual operation) to the program. Company must provide, at no expense to Practice, all reference manuals, booklets, pamphlets, and other training materials relevant to the program in electronic format. Company shall conduct special training sessions for the program operators one week prior to each Program Cut-Over Date as specified in each Order Form, and at selected other times on and after the Program Cut-Over Date. Company will offer Train the Trainer program to train Practice-designated personnel in the program training techniques and content to enable Practice to assume responsibility for the program training on an ongoing basis after the program Cut-Over Date at an additional cost to Practice. Company shall make available pre-recorded webinars for Practice s ongoing in-house program training 2.4 Cut-Over Support In connection with each Program Cut-Over, Company shall provide the following help desk services to Practice to respond to all questions and concerns, and take immediate steps to remedy any issues or errors in the program. 3.1 Grant Practice gets a nontransferable, nonexclusive, perpetual, worldwide license during the term of the Agreement to use the licensed programs on any number of computers in Practice s possession. best practices related to training. The license ends once the Agreement ends, subject to the transition period, which enables the practice and its users to use the program for 2 years.

6 3.2 Sublicenses The License granted under the Agreement will entitle Practice to grant sublicenses to the licensed programs to Users, and to no other persons or entities. ARTICLE III: ACCESS TO PROGRAMS AND DELIVERY OF OTHER LICENSED PROGRAMS ARTICLE V: ACCEPTANCE TESTING ARTICLE VI: SUPPORT AND MAINTENANCE SERVICES 4.2 Service Levels Hosting services will be governed by the service level. Within two (2) weeks of the commencement of the first on-site training session Company agrees that the Applications will be available 99.9% of the time during the hours of 5:00 AM to 12:00 AM EST, seven (7) days per week. Company will measure and report performance against service levels upon request. 5.1 Procedure Company will provide at least 4 days notice in advance of cut-over date. Practice has 45 days to determine if functionality of program operate in accordance with specifications and user materials and without material failure. 5.2 Material Failure If a material failure occurs during the 45-day acceptance period, Company has 30 days to rectify the cause. The acceptance period will be extended by 2 times the number of days that elapse between the date the failure occurs and date corrected 5.3 Final Acceptance or Rejection If the program operates through the Acceptance Period with no more than 1 material failure that is cured, Practice must provide Company with a notice of final acceptance or reject the program. If deliverables are finally rejected, then Company shall promptly refund the Subscription Fee paid by Practice. 6.1 Maintenance Company shall provide at no charge those services necessary for the program to operate, which include: error corrections, new releases, updates, upgrades and new versions 6.2 Information Network Practice shall have, at no charge, during the life of each Transaction (including any period where Practice purchases optional maintenance and support under this Agreement) and for three (3) years after its This Article ensures the program works as promised

7 ARTICLE VII: PERSONNEL MATTERS 6.3 Additional Support & Maintenance termination for any reason, on-line access to Company s public information network, if any, for online information and questions. If Practice requests additional support and maintenance services, Company will provide them for an additional fee 6.4 Customized Software Company shall provide future maintenance releases and upgrades that are compatible with any customized or specially-configured version of the program provided to Practice. Practice shall not incur any additional expense not required of other Practices of Company who wish to do a future migration to a new revision or upgrade. 6.6 Update Services Within 10 days of availability or such shorter period if the program update relates to a critical fix or functionality, Company shall notify Practice of all program updates, describe in reasonable detail the effect of such program updates on the use or functionality of the updated program, and provide the updates to the program at no additional cost to Practice. At the request of Practice, Company shall perform a program update after Practice s standard business hours at no additional charge to Practice. Company shall update the drug content for the Program no less often than quarterly and other content (including ICD9, and CPT) will be updated as necessary during the term. 7.1 Company Staffing Company may select its personnel but must ensure that only fully qualified personnel are assigned to perform services. Personnel must perform services diligently and in a timely manner, according to the highest applicable professional and technical standards. Practice shall have no authority to discharge, promote, suspend or otherwise discipline any Company Personnel assigned to provide Services under this Agreement. Practice shall, however, have the right to refuse to utilize for any reason any

8 ARTICLE VIII: COMPENSATION 7.4 Certain Restrictions Applicable to Company Personnel Company Personnel assigned to provide Services under this Agreement and to have removed from its premises any person, including any Company Personnel for any reason or no reason. Company personnel must comply with any internal Practice policies while performing services on site at Practice s facilities, including those relating solely to smoking, security and parking. In addition, Company personnel must comply with all applicable laws and regulations in performing the services 7.5 Subcontracting Company may use subcontractors to perform services, but only as authorized in the Order Form. Company is responsible for the performance of subcontractors. Before engaging a subcontractor, Company must enter into a written subcontract with the subcontractor that contains terms consistent with and no less protective of Practice s IP Rights and Confidential Information than the terms of the Agreement. All such subcontracts must be approved by Practice in advance. A subcontractor may only use its own employees and not further subcontract 8.1 Amounts Payable Practice shall pay Company the Subscription Fee and the Implementation Fees for the program and services as set forth in the applicable Order Form. 8.2 Travel Policy Practice must reimburse Company for its airfare costs incurred in providing the services and for all its travel expenses incurred in providing certain additional services, provided that the Company uses commercially reasonable efforts to minimize all such expenses by using Company s personnel and/or the personnel of its affiliates located near the practice and further provided that such travel expenses are pre-approved by the Practice in writing. 8.3 Published Rate The Published Rate set forth in Exhibit 8.3 for certain additional services, except to the extent expressly agreed otherwise in writing by the parties, replaces references in any document to services being This lets a practice knows the hourly rate such services will cost, rather than being subject to an unknown and possibly exorbitant

9 provided on a time and materials basis, or at Company s then current rates, rates then in effect, or language of similar import 8.4 Service Level Credits Schedule 4.2 sets forth specified Service Level Credits which shall be granted to Practice if and when Company s actual performance of services fails to meet certain levels, as measured against the Service 8.5 Adjustment for Amounts Payable Levels. subscription fee and Published Rate can t change during the contract's first year. After that, can change once per year but only by no more than the lesser of: (a) the rate that the Consumer Price Index increased for the previous year or (b) three percent (3%) 8.6 Payment The Subscription Fee shall be due at the beginning of a calendar quarter, except that the first payment shall be due on a prorated basis within ten (10) business days after the Program Cut-Over Date. 8.7 Overtime Company responsible for overtime of Company personnel "current" company rate Caps price increases at 3% and then only after the first year Another provision to lock down all possible fees as much as possible ARTICLE IX: OBLIGATIONS OF THE PARTIES 8.8 Invoicing Practices Invoices must be in sufficient detail to support tax review and fixed asset accounting methodology 9.1 General Obligations Each party will conduct business in a way that does not adversely affect the reputation of the other and avoid in engaging in deceptive, misleading or unethical practices, except with respect to third party reference requests of Practice regarding the program or services. Access to the system cannot be removed or disabled without due process of law 9.2 Nondisclosure Each party agrees to protect the other s confidential information. 9.3 Compliance with Laws Parties shall comply with all applicable laws and regulations associated with this agreement. This is both an anti-gag clause for the practice and protection against the Company suddenly shutting down access to the system for some alleged wrongdoing by the practice. Standard provision in most contracts Standard provision in most contracts 9.5 HIPAA Company is a Business Associate and Practice a Covered Entity under HIPAA. Both will comply with HIPAA and Exhibit 9.5 Required provision when Company accessed medical information

10 ARTICLE XI: REPRESENTATIONS AND WARRANTIES 11.1 Compliance with Laws Parties represent and warrant that they will comply with all applicable laws and regulations in performing under the Agreement 11.2 Program Company represents and warrants that during the warranty period program will: be free of defects be capable of operating fully and correctly on the computer hardware, telecom equipment, and operating system environment identified in the Specifications operate in accordance with its Specifications and Documentation and without Error Services During the warranty period the Company will provide (i) services in a competent and professional manner and (ii) staff with appropriate skill sets 11.4 Documentation All provided documents will be accurate and complete 11.5 No Off-Shoring Company warrants that (i) all services and deliverables provided under this Agreement shall be done by personnel present and residing within the US, and (ii) Company will ensure that any non-public information or data learned by it as a result of entering in this Agreement shall never leave the jurisdiction of the US Open Systems Company warrants the program will work in an open systems environment and with other electronic medical records systems, and the program has obtained certification as a Complete EHR or EHR Module 11.7 Title, Intellectual Property program will not infringe on IP rights held by any third party 11.8 Defects Warranty period is 12 months from Final Acceptance. During that period, Company warrants program will be free from defects in materials and workmanship The representations and warranties in Article 11 are all standard in most program license agreements except the MU rep, which is specific to this Agreement

11 and will operate without Material Failure in accordance with Specifications for the program 11.9 Meaningful Use The product is ONC Certified for Stage 1 Meaningful Use Interoperability with Other EHR Modules Program, if not a complete EHR, will be interoperable with other EHR modules Modifications Modifications to the program will not change the Practice s ability to meet the criteria to be a meaningful user Commitment to Upgrade Company agrees to update the program to permit Practice to remain a meaningful user. The fees charged to Practice, if any, shall be in accordance with the most favorable prices offered to other Practices of Company Litigation There is no current legal action pending that would impact the use of the program Continuing Warranties Warranties will apply regardless of whether Company replaces or substitutes the program in the future ARTICLE XII: LIMITATION OF LIABILITY ARTICLE XIII: INDEMNIFICATION 12.1 Limitation of Liability Except for Company s indemnification obligations and damages involving bodily injury caused by Company s gross negligence or willful misconduct, Company s liability to Practice limited to direct damages and capped at the amount of fees paid by Practice during first 12 months of agreement By Company Company will hold Practice harmless from all losses caused by the gross negligence or willful misconduct of Company, breach by the Company of the Business Associate Agreement, or breaches by the Company of IP laws. Practice must notify Company within ten (10) days of receiving written notice from a third party of a claim subject to the indemnification 13.2 By Practice Practice will hold Company harmless from all losses caused by the gross negligence or willful misconduct of Practice or Practice's material breach of its

12 13.3 Indemnification Procedure representations, warranties or covenants set forth in the Agreement, other than to the extent such losses are directly attributable to the gross negligence or willful misconduct of Company. Company must notify Practice within ten (10) days of receiving written notice from a third party of a claim subject to the indemnification Describes the procedures for invoking either Section 13.1 or 13.2 ARTICLE XV: TERM AND TERMINATION 13.4 Contribution If indemnification is unavailable, then the party that would otherwise have been required to provide indemnification will instead be required to contribute to the indemnified party based on the relative fault of the parties Term of Agreement Will commence on effective date and be in effect until terminated 15.2 Term of Transaction Initial term is 2 years with automatic renewal unless otherwise terminated. If the intent is not to renew, 15.3 Termination of Agreement for Convenience 15.4 Termination of Specific Transaction for Convenience 15.5 Termination of Agreement for Cause 15.6 Termination of Specific Transaction for Cause practice must provide 90 days written notice Practice may terminate for convenience at any time with 30 days written notice. Except as stated in the applicable Order Form, Practice may terminate a Transaction with or without cause prior to the Program Cut-Over Date by giving Company ten (10) days notice of termination. If either party breaches the terms of this agreement, the other party must notify the breaching party of intent to terminate for cause. The breaching party has 30 days to correct the issue. If not corrected during this period the agreement automatically terminates Same as Section 15.4 but for terminating a specific Order Form without terminating the entire Agreement Only the Practice can terminate for convenience Distinction between terminating the Agreement and an Order Form is relevant only if multiple Order Forms are executed, which may never happen

13 15.7 Effect of Termination of Agreement Upon termination of Agreement, all transactions shall remain in effect until they expire or are terminated ARTICLE XVI: DISPUTE RESOLUTION ARTICLE XVII: MISCELLANEOUS 15.8 Effect of Termination of a Transaction Upon termination, the relevant legal provisions remain in effect. The practice continues to have access to the program based on previously paid subscription fees. Both parties agree to return all confidential information to one another 15.9 Transition Rights Upon termination, the practice will have the right to continue to use the full system for 24 months. Company will provide assistance in the transition to a new system including providing practice data files in the format practice requests. Such services shall be provided to Practice at no further charge 17.1 Governing Law, Exclusive Jurisdiction 17.2 Entire Agreement; Order of Precedence The parties must seek to resolve disputes related to the Agreement under the process outlined in Article 16. The process starts at the account director level. If unresolved, then the dispute is escalated to the executive level. If still unresolved, the parties have the option, but are not be required to, resolve the dispute through mediation US and California laws govern the interpretation of the agreement; any dispute not resolved under Article 16 that ends up in court must be heard in the state or federal courts located in the county in which Practice s principal place of business is located The hierarchy of the documents constituting the Agreement is as follows: (a) the text of the Addendum (excluding schedules and exhibits hereto); (b) the schedules and exhibits to the Addendum; (c) the License Agreement text (excluding schedules and exhibits thereto); the schedules and exhibits to the License Agreement; and (d) any other document 17.4 Bankruptcy If Company declares bankruptcy, practice can continue to have the Agreement honored This provision provides support from Company in the event the practice chooses to move to another EHR product. See comment to Section 1.1 above

14 17.5 Force Majeure If a party is prevented from performing for events outside its control, it will not be liable for nonperformance but the other party can terminate the agreement if the nonperformance continues for more than 90 days 17.6 Binding Nature and Assignment Practice may assign the Agreement upon written notice to Company. Company must receive approval from Practice before assigning its interests in the contract, which approval shall not be unreasonably withheld Media Releases Neither party can make any public or private announcement, media release, press conference or similar publicity relating to any aspect of the Agreement without the other party's prior written consent No Oral Modifications The Agreement represents the final and controlling set of terms governing the system and can only be changed through a written amendment signed by both parties Schedule 1.5 Statement of Work and Outlines the components of the system Specifications Attachment 1.5 Technical Specifications Outlines technical requirements supported by Company including interface support and costs Schedule 6.3 Maintenance and Support Services Outlines specific support and maintenance details related to system Exhibit 9.5 Business Associate Requirements Schedule 11.9 Meaningful Use: Stage 1 Meaningful Use Criteria Sets forth the requirements the Company as a Business Associate must meet under HIPAA and under California privacy law Company represents here that the program is certified as a Complete EHR under the Stage 1 MU program Exhibit 9.5 is HIPAA, HITECH and California compliant. It also includes insurance requirements (not required under HIPAA) to further protect the practice