GE Healthcare Hosted Contract Summary ARTICLE SECTION SUMMARY COMMENT ARTICLE I: TRANSACTIONS 1.1 Definitions Schedule 1.1 contains a list of definitions for terms capitalized in this Agreement. 1.2 Scope and Structure of Agreement 1.3 & 1.4 Addition and Removal of Users: Reorganization The Agreement and the Change Order Form in Schedule 1.2 govern the provision and use of the Program. Practice may add or remove Users by written notice to Company. The Change Order Form may provide Subscription Fee adjustments for adding Users. If the Change Order Form does not set forth an additional Subscription Fee, then no additional Subscription Fee will apply. If there is a re-organization, 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 services and Hosting Services specified in the Change 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 the Program Cut-Over Date). These dates must be set Unlike every other vendor contract where there is an underlying license agreement and a controlling addendum, GE has contracted with us with one agreement and no addendum Change Order Form structure allows for additional services and products to be provided in the future under the Agreement 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
forth in the SOW. Company must use commercially 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. Company is not responsible for delays not caused by Company. If Company fails (or appears likely to fail) to meet a deadline for any reason attributable solely and directly to the fault of Company, Company must immediately notify Practice, provide additional persons or other resources, and complete the task involved within the stated deadline or, if the deadline is missed, in as timely a manner as possible. Company shall use commercially reasonable efforts to 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 then providing services under the Agreement. If Practice requests at any time, Company must destroy all copies of Practice data in Company s possession or control. Practice may request at any time that Company provide an electronic copy of all Practice Data to Practice. Company may not withhold any Practice data to resolve a dispute. Company s intellectual property rights remain that of Company s and Practice will not delete or alter any copyright or trademarks appearing on the Software or Solution. 1.8 Safeguarding Practice Data Each party must establish and maintain security safeguards to protect Practice data as set forth in the Business Associate Agreement. practice to know when those dates will be met 1.9 Security Describes specific security methods and procedures Company must employ to protect Practice data.
1.10 General Requirements Describes Company s responsibilities specific to the following: Hosting Services Company will host on Company s computer systems, an Internet website that will offer the Program and Services and information to individuals identified by Practice 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 to retain their respective URL ownership All Practice s intellectual property to remain property of Practice. ARTICLE II: IMPLEMENTATION SERVICES 2.1 Company s Responsibilities Company shall provide the Implementation Services, including those services as necessary to install, implement, integrate, and configure the Program. Company and Practice shall organize a mutually acceptable implementation work plan which will be attached to the applicable Change Order Form or Statement of Work. The Implementation Work Plan will spell out the key responsibilities of the respective Parties and the critical dates associated with the implementation of the Program. The Parties shall cooperate with each other during the implementation of the Program. 2.2 Professional Services Company shall configure the Program and other Deliverables, integrate the Program and other Deliverables, and perform any Additional Services specified in the SOW accompanying the Change Order. 2.3 Training Company shall sufficiently train personnel designated by Practice in the use of the Program in accordance with the mutually agreed upon Implementation Work 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.
Plan. These provisions ensure that Company is complying with the best practices related to training. ARTICLE III: SUBSCRIPTION LICENSE TERMS ARTICLE IV: ACCESS TO PROGRAMS AND DELIVERY OF OTHER LICENSED PROGRAMS ARTICLE VI: SUPPORT AND MAINTENANCE SERVICES 2.4 Cut-Over Support In connection with each Program Cut-Over, Company shall provide Support in accordance with the Centricity Software Support Policy attached to this Agreement as Schedule 6.3. 3.1 Grant The Program is the Software provided by Company under this Agreement on a software as a service model ( SaaS ) as a monthly service. Company will provide the Program to Practice and Authorized Users during the term of this Agreement for each item purchased on a valid quotation, subject to compliance with this Agreement (including payment of applicable fees). Company will provide Practice with support services for the Program in accordance 3.2 Company and Practice Marks with its then current support policy. Each Party shall comply with all trademark and copyright guidelines and procedures reasonably established by the other Party. Each Party shall not modify or alter any of the other Party s Marks in any manner whatsoever. 4.1 Access to the Program Company will provide Practice with authorized passwords to allow Users to access the Program 4.2 Service Levels Company shall perform its obligations related to the Hosting Services at levels at least in accordance with Schedule 4.2. 6.1 Maintenance Company will provide support and maintenance in accordance with the Centricity Software Support Policy attached hereto as Schedule 6.3. 6.2 Update Services Company will provide updates and upgrades in accordance with the Centricity Software Support Policy attached hereto as Schedule 6.3.
ARTICLE VII: PERSONNEL MATTERS ARTICLE VIII: COMPENSATION 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 the right to use any particular Company Personnel for any reason. 7.4 Practice Policies Company Personnel shall comply with any internal Practice policies while performing Services on site at Practice s facilities, and comply with all applicable laws and regulations. 7.5 Subcontracting Company may use subcontractors to perform Services, but Company shall be responsible for the performance of its subcontractors. 8.1 Amounts Payable Practice shall pay Company the Subscription Fee for the Program and Services as set forth in the applicable Change Order. The Subscription Fee is allinclusive; all Services provided by Company in connection with any Transaction will be included in the Subscription Fee and provided to Practice at no additional cost. Additional fees may apply for training that is not scheduled as part of the Implementation Work Plan, and for customization and development services for any modifications or additions to the Program templates or documents. 8.2 Travel Policy Practice shall reimburse Company for all reasonable Travel Expenses incurred by Company in connection with the Services, provided that: (a) Company uses commercially reasonable efforts to minimize all such Travel Expenses and (b) obtains the prior consent of Practice to an estimate of such travel expenses. 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 Levels.
8.4 Published Rate Company shall establish an hourly rate for Additional Services in an Exhibit to the Agreement. 8.5 Adjustment for Amounts Payable After the first anniversary of the Effective Date, Company shall be permitted to increase the Centricity software support and maintenance fees, not more than once per year, by not more than the rate that the CPI increased for the previous year plus 2%. 8.6 Overtime Company responsible for overtime of Company personnel This lets a practice knows the hourly rate such services will cost, rather than being subject to an unknown and possibly exorbitant "current" company rate Another provision to lock down all possible fees as much as possible ARTICLE IX: OBLIGATIONS OF THE PARTIES ARTICLE XI: REPRESENTATIONS AND WARRANTIES 8.7 Invoicing Practices Invoices must clearly indicate the applicable month for the Subscription Fee. 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 to good faith responses non slanderous to third party reference requests of Practice regarding the software or services. 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. 9.5 HIPAA Company is a Business Associate and Practice a Covered Entity under HIPAA. Both will comply with HIPAA and Exhibit 9.5 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 Program will: be free of material defects 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 Required provision when Company accessed medical information
be capable of operating fully and correctly on the computer hardware, telecommunications equipment, and operating system environment identified in the Specifications operate in accordance with its Specifications and Documentation 11.3 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 at the time of their delivery 11.5 Title, Intellectual Property The Program will not infringe on IP rights held by any third party. 11.6 Defects Warranty period is 90 days from first productive use. During that period, Company warrants Program will be free from defects in materials and workmanship and will operate without Material Failure in accordance with Specifications for the Program. 11.7 Meaningful Use Company will use diligent efforts to obtain certification for the software as Certified EHR Technology under the HITECH Act. If Company fails to obtain certification within ninety (90) days after the beginning of the applicable Reporting Period in a Payment Year that Practice is actively seeking to demonstrate Meaningful Use (provided Practice is still subscribing to the Program), Company will credit the monthly fees for such software for each month during which the software is not certified (up to a maximum of 6 months) against future support fees. 11.8 Litigation There is no current legal action pending that would impact the use of the Program. 11.9 Continuing Warranties Warranties will apply regardless of whether Company updates and upgrades the software in the future.
ARTICLE XII: LIMITATION OF LIABILITY ARTICLE XIII: INDEMNIFICATION 11.10 Breach of Warranty If there is any breach of a warranty, Company will promptly re-perform any non-conforming services for no charge as long as Practice provides reasonably prompt written notice to Company. Additionally if there is any breach of a warranty contained in Section 11.6 and Company cannot substantially correct such breach in a commercially reasonable manner within 90 days after receiving written notice from Practice, Practice may terminate this agreement and obtain a refund of the applicable Subscription Fees. 11.12 Medical Diagnosis, Treatment and Billing 11.13 Third Party Data Restrictions Practice acknowledges and agrees that all clinical and medical treatment, diagnostic decisions and billing decisions are the responsibility of Practice and its professional healthcare providers or billing specialists. Practice acknowledges and agrees that the Solution provides access to certain data licensed by Company from third parties, and that access to and use of such data and any updates thereto is dependent on GE Healthcare continued contractual relations with the third parties. Company will use commercially reasonable efforts to continue providing access to the data, but will not be responsible for any failure to provide the data and updates thereto. 12.1 Limitation of Liability Each Party waives its right to a jury trial. Except for Company s indemnity obligations, Company s liability shall not exceed the total price paid by the Practice for the products and services. No punitive, incidental, or consequential damages. Company will defend, indemnify, and hold harmless Practice from any third-party claims brought against Practice for infringement of intellectual property rights arising from Practice s use of the Program, to the degree specified in this Section.
Each Indemnifying Party will defend, indemnify and hold harmless the other Party from any third-party claims brought against the other Party to the extent such claims are proximately caused by the negligent act or omission of the Indemnifying Party and are determined by a court of competent jurisdiction to be a legal liability of Indemnifying Party. ARTICLE XV: TERM AND TERMINATION Each Indemnifying Party will defend, indemnify and hold harmless the other Party from any third-party claims brought against the other Party to the extent such claims are proximately caused by the Indemnifying Party s breach of the confidentiality obligations hereunder and are determined by a court of competent jurisdiction to be a legal liability of the Indemnifying Party. 15.1 Term of Agreement Will commence on effective date and be in effect until terminated. 15.2 Term of Program Support and Maintenance services are provided on a monthly basis and shall renew automatically on a monthly basis unless either party provides the other with a notice of termination sixty (60) days prior to the end of the then current term. The Program is licensed for a period of 12 months unless earlier terminated. The Program term shall automatically renew for 1 year periods provided all applicable fees are paid, unless either Party provides written notice not to renew at least 90 days before the commencement of the Renewal Term. 15.3 Termination of Agreement for Cause If Default occurs, the non-defaulting Party may terminate the Agreement if the Default is not cured within a 30 day grace period. Practice may also designated pending Transactions that will be terminated if the Default is not cured.
ARTICLE XVI: DISPUTE RESOLUTION ARTICLE XVII: MISCELLANEOUS 15.4 Effect of Termination of a Transaction Upon termination, the relevant legal provisions remain in effect. Both parties agree to return all confidential information to one another. 15.5 Transition Rights Upon Practice s request, for no more than 12 months after termination or expiration of this Agreement (except where termination has occurred due to a uncured breach of this Agreement by the Practice), Company shall continue to provide Practice with access to the Program at then current rates subject to Practice s continued payment obligations, and shall provide professional services to Practice on a time and materials basis at then current rates, to transition Practice data into an in house or third party solution. 17.1 Governing Law, Exclusive Jurisdiction The parties must seek to resolve disputes related to the Agreement under the process outlined in Article 15. 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 court action. US and California laws govern the interpretation of the agreement; any dispute not resolved under Article 15 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 17.2 Entire Agreement This Agreement, along with all exhibits, schedules, and other documents, forms the entire agreement of the Parties. 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 This provision provides support from Company in the event the practice chooses to move to another EHR product, and to prevent disruption to patient care.
Schedule 1.5 17.6 Binding Nature and Assignment Practice cannot assign without prior written consent of Company. Company may assign if assignment shall not materially affect the level of support and Maintenance Services provided to Practice. 17.7 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 17.12 No Oral Modifications Statement of Work and Specifications 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 Outlines the components of the system Attachment 1.5 Technical Specifications Outlines technical requirements supported by Company including interface support and costs Schedule 4.2 Service Level Provisions Outlines the performance standards that the Program must meet Schedule 6.3 GE Centricity Advance Software Support Policy 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 Program has been certified as a Complete EHR.