Agreement Software License Agreement
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AGREEMENT SOFTWARE LICENSE AGREEMENT
(HOSTED)
This Software License Agreement (“Agreement”), dated effective as of the day of , 20 , (“Effective Date”), is made and entered into by and between General Electric Company by and through its division GE Healthcare (“Company”) and (“Licensee”). Company and Licensee may sometimes be individually referred to herein as a “Party” and collectively as the “Parties.”
RECITALS
Licensee is a provider of healthcare services.
Licensee is in need of certain electronic health record (“EHR”) application services, and also is in need of certain hosting, implementation, training, and support and maintenance services with respect to an EHR solution.
Company has developed Centricity ® Advance which is a EHR solution delivered on a Software As A Service platform (the “Program,” as defined more fully in Schedule 1.1).
Licensee would like to subscribe to the Program (inclusive of all necessary licenses to utilize the applications utilized as part of the Program), pursuant to the terms and conditions of the Agreement.
Company would like to host, implement, train, support, and maintain the Program and license the Program (together with related Documentation and Services) to Licensee for use and access through the Site (as defined in Schedule 1.1), pursuant to the terms and conditions of the Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing recitals and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:
ARTICLE I TRANSACTIONS
I.1 Definitions. Schedule 1.1 contains a list of definitions for terms capitalized in this Agreement.
I.2 Scope and Structure of Agreement. This Agreement governs all transactions between the Parties with respect to the licensing of the Program and the purchases of related products and services by Licensee from Company (“Transactions”). The Parties shall
2033839.1 1 memorialize each additional Transaction in writing. by an order in the form of Schedule 1.2 (“ Change Order”) to be executed by Company and the Licensee. Each Transaction shall be governed by the terms of the Agreement and the applicable Change Order. A Transaction is effective as of the date on which Company and the Licensee have executed the applicable Change Order (“Change Order Effective Date”).
I.3 Addition and Removal of Users: Reorganizations.
(a) Addition and Removal of Authorized Users. With respect to each Transaction hereunder, Licensee will have the option from time to time in its discretion to add Users to the Transaction. Each Change Order may set forth an additional License Fee required and other terms for adding Users to the Transaction. If the Change Order does not set forth an additional License Fee required, then no additional License Fee will apply. To add a User to a Transaction, Licensee shall notify Company in writing of the name of the new User and shall agree to pay the additional License Fee set forth in the Change Order, if applicable. Unless otherwise provided in an Change Order, upon Licensee’s agreement to pay the additional License Fee, if applicable, the new User will for all purposes of the applicable Change Order be deemed a User under the Change Order.
(b) Removal. With respect to each Transaction hereunder, Licensee will have the option from time to time in its discretion to remove Users from the Transaction. Each Change Order may set forth the decreases to the Subscription Fee and other terms that apply when removing a User from the Transaction. If the Change Order does not set forth decreases to the Subscription Fee in the event of removal of a User, then the specific Subscription Fee under the Transaction will be equitably adjusted to account for any expected decreased usage of Services or the Program or decreased volume of Services provided by Company, and the Parties shall amend the Change Order to reflect such decrease. To remove a User from a Transaction, Licensee shall notify Company in writing of the name of the User being removed. After the termination or expiration of the Transition Period, the removed User will no longer be deemed a User under the Change Order. When a User is removed from a Transaction, Licensee will have the option to assign to the User the right to continue to receive the Services and exercise the license rights under the Change Order, provided that the User separately agrees in writing to comply with the terms and conditions of this Agreement and shall pay an amount equal to the reduction in Licensee’s Subscription Fee.
I.4 Reorganizations. The Parties anticipate that Licensee may undergo reorganizations and changes to corporate structure during the term of this Agreement. Without limiting Licensee’s rights set forth above, Licensee will have the right to reallocate license rights and the rights to receive Services under this Agreement and each Change Order among any successor in interest to Licensee, and authorized Users. Licensee shall notify Company of such changes. Such changes will be without additional cost to Licensee or Licensee’s successor in interest.
I.5 Services. Unless otherwise specified in the applicable Change Order , Company shall provide implementation services in connection with each Transaction as specified below (“Implementation Services”), and shall provide Hosting Services in connection with the Program as defined in Section 1.10 below and as further specified in the Change Order and/or
2033839.1 2 the Statement of Work in the form of Schedule 1.5 (“SOW”), which shall be incorporated, directly or by reference, into the relevant Change Order. Additional professional Services to be provided by Company may be detailed in the SOW.
I.6 Scheduling. Company and Licensee in a given Transaction may agree on target dates for certain specified milestones, such as the completion of a particular phase, the availability or acceptance of the Program or other Deliverable or the Program Cut-Over Date. These dates shall be set forth in the applicable SOW. Company shall use its commercially reasonable efforts to meet the agreed-upon target dates and shall notify Licensee as soon as Company believes that a particular target date will not be met. Company shall not be responsible for delays caused by acts or omissions which are not committed by the Company. The Parties may also agree on deadlines for achieving specified milestones, which will also be set forth in the applicable SOW. If Company fails (or appears likely to fail) to meet a deadline for any reason attributable solely and directly to the fault of Company (including its subcontractors), Company shall immediately notify Licensee and shall provide additional persons or other resources, as requested by Licensee and at no additional charge to Licensee, to 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 Licensee request a later date.
I.7 Rights in Data. Licensee will be the sole and exclusive owner of all data, specifications, and other information provided to Company by or on behalf of any User (“Licensee Data”) and all IP Rights in the foregoing. Licensee Data will be deemed Licensee’s Confidential Information. Company hereby irrevocably assigns to Licensee, without further consideration, all IP Rights and other rights Company may have or obtain in Licensee Data. Upon any expiration or termination of this Agreement, or upon Licensee’s request at any time, Company shall promptly provide an electronic copy of all Licensee Data to Licensee in the format and with the file layouts reasonably requested by Licensee, at no additional charge to Licensee. If Licensee requests at any time, Company shall destroy all copies of the Licensee Data in Company’s possession or control. Company shall not withhold any Licensee Data as a means of resolving any dispute. Company shall not use Licensee Data for any purpose other than that of rendering Services under this Agreement, nor sell, assign, lease, dispose of or otherwise exploit Licensee Data. Company reserves all rights in and licenses to the Program not expressly granted to Licensee under this Agreement. Licensee acknowledges that Company or its third party partners own all worldwide right, title and interest in and to the Program and the Hosting Services, including all worldwide patent rights (including patent applications and disclosures), copyrights, trademarks, trade secrets, know-how and any other intellectual property rights recognized in any country or jurisdiction (“Intellectual Property Rights”). Licensee will not delete or in any manner alter the copyright, trademark, and other proprietary rights notices appearing on the Software or the Solution. Licensee may not sublicense, timeshare, provide service bureau or subscription services or otherwise transfer the Program.
I.8 Safeguarding Licensee Data. Company shall establish and maintain environmental, safety and facility procedures, data security procedures and other safeguards against the destruction, loss, or alteration of Licensee Data in the possession of Company which are in conformance with the attached Business Associate Agreement.
2033839.1 3 I.9 Security. At a minimum, Company shall employ the following security methods and procedures.
(a) Access Controls. Company shall only permit access to Licensee Data in accordance with the terms of this Agreement or as otherwise agreed by the Parties in writing.
(b) Restricted Access. Company shall not access Licensee Data except as necessary to provide Services under this Agreement.
I.10 General Requirements.
(a) Hosting Services; Website Access. Among the Services to be provided under this Agreement, Company shall, in accordance with its Documentation, host on Company’s computer systems an Internet website (the “Site”) that will offer the Program and Services and information to individuals identified by Licensee (collectively, the “Hosting Services”).
(b) Licensee Network Access. To the extent Company is granted access to Licensee’s network, Company shall use such access solely to meet its obligations under this Agreement.
(c) URL Ownership. Each Party shall retain ownership of its respective intellectual property, including its respective URLs, Hyperlinks, trademarks, trade names or otherwise. .
(d) Licensee Data. All Licensee trademarks, copyrights and patents and information relating to Licensee’s employees, including User data, are the sole property of Licensee, and may be used by Company only with the express written permission of Licensee. Company has no ownership rights over Licensee’s intellectual property developed independently and which is not based on or a derivative work of Company’s intellectual property.
ARTICLE II IMPLEMENTATION SERVICES
II.1 Company’s Responsibilities. In each Transaction, Company shall provide implementation Services, and the Implementation Services shall include those services necessary to install, implement, integrate, and configure the Program. Company and Licensee shall organize a mutually acceptable implementation work plan which will be attached to the applicable Change Order or Statement of Work (“Implementation Work Plan”). At a minimum, 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, including testing dates, training dates, Program Cutover and the like. Company shall use its reasonable best efforts to cooperate with Licensee’s service partners and local extension centers during the implementation of the Program.
II.2 Professional Services. For each Transaction, Company shall configure the Program and other Deliverables, integrate the Program and other Deliverables (if they have been
2033839.1 4 sold as an overall system), and perform any Additional Services specified in the SOW accompanying the Change Order.
II.3 Training. Company shall sufficiently train personnel designated by Licensee in the use of the Program in accordance with the mutually agreed upon Implementation Work Plan
II.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.
ARTICLE III SUBSCRIPTION LICENSE
III.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. “Software” means any Company or third-party software identified in the quotation (including Software utilized by Company in providing Centricity Advance) and related documentation, including any modifications and updates provided by Company under this Agreement. Company will provide the Program to Licensee 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). Licensee may not allow competitors or third parties to view or access the Program. Subject to Licensee’s payment of the support fees, Company will provide Licensee with support services for the Program in accordance with its then current support policy. An “Authorized User” means any licensed provider of medical services who provides services and/or generates charges using the Program and employees or contractors of Licensee that have (i) a unique username-password, (ii) completed the online registration and (iii) accepted the terms of access.
III.2 Company Marks and Licensee Marks.
(a) Licensee shall comply with all trademark and copyright guidelines and procedures reasonably established by Company and provided to Licensee in writing from time to time during the Term, upon advance notice. Licensee shall not modify or alter any Company Mark in any manner whatsoever. Licensee will be required to obtain Company’s approval prior to any use or proposed use of any of the Company Marks by Licensee or any of Licensee’s respective Users.
(b) Company shall comply with all trademark and copyright guidelines and procedures reasonably established by Licensee and provided to Company in writing from time to time during the Term, upon advance notice. Company shall not modify or alter any Licensee Mark in any manner whatsoever. Company will be required to obtain Licensee approval prior to any use or proposed use of any of the Licensee Marks by Company.
III.3 Reservation of Rights.
(a) The Licensed Programs are and will remain the sole and exclusive property of Company and those third parties from whom any Licensed Program is licensed by
2033839.1 5 Company, as applicable. Neither Licensee nor any Users will acquire any title or ownership of the Licensed Programs under or by reason of this Agreement.
(b) Company expressly reserves all trademark, copyright, trade secrets, patent and other proprietary and intellectual property rights with respect to the Licensed Programs, whether now held or which may hereafter exist in the future.
(c) Without limiting the generality of the provision set forth in Section 3. 3(a) and Section 3. 3(b) above, as between the Parties, Company retains all right, title and interest in and to the Documentation and the Company Marks and all associated intellectual property rights therewith.
ARTICLE IV ACCESS TO PROGRAMS AND DELIVERY OF OTHER LICENSED PROGRAMS
IV.1 Access to the Program. In accordance with the mutually agreed upon Implementation Work Plan, Company shall provide Licensee with authorized passwords and other security devices to allow all Users to access the Program and all Program Updates as uniquely authenticated Users.
IV.2 Service Levels. Except as otherwise specified in this Agreement, Company shall perform all of its obligations related to the Hosting Services at levels at least in accordance with the Service Levels set forth in Schedule 4.2.
ARTICLE V ACCEPTANCE TESTING
ARTICLE VI SUPPORT AND MAINTENANCE SERVICES
VI.1 Maintenance. Company will provide support and maintenance in accordance with the Centricity Software Support Policy attached to this Agreement as Schedule 6.3.
VI.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
VII.1 Company Staffing. Company may select its Company Personnel. All Company Personnel shall be considered, for all purposes, employees of Company or subcontractors of Company and not of Licensee. Company shall ensure that only fully qualified Company Personnel are assigned to perform Services under this Agreement, and such Company Personnel shall perform Services diligently and in a timely manner, according to the highest applicable professional and technical standards. Licensee shall have no authority to, on behalf of Company or otherwise, discharge, promote, suspend or otherwise discipline any Company Personnel assigned to provide Services under this Agreement. Licensee shall, however, have the right to refuse to utilize for any reason any Company Personnel assigned to provide Services under this
2033839.1 6 Agreement and to have removed from its premises any person, including any Company Personnel for a legitimate reason (i.e., non-discriminatory and related to non-performance, noncompliance with Licensee rules or disrespectful behavior).
VII.2 Compliance with Employment and Labor Laws. With respect to its employees, Company shall, at its own expense, comply with all applicable laws in performing Services, including, but not limited to, the National Labor Relations Act, the Americans With Disabilities Act, all applicable employment discrimination laws, overtime laws, tax laws, immigration laws, workers’ compensation laws, occupational safety and health laws, and unemployment insurance laws and any regulations related thereto.
VII.3 Payroll Taxes. Company shall pay (either directly or through its subcontractors) all federal, state and local income taxes and other payroll taxes, as well as contributions for unemployment insurance, workers’ compensation insurance, pensions, or annuities which it or its subcontractors now or may hereafter be required to deduct from the wages of Company Personnel and shall file all required returns related to such taxes, contributions and payroll deductions.
VII.4 Licensee Policies. Company Personnel shall comply with any internal Licensee policies while performing Services on site at Licensee’s facilities, including those relating to smoking, security and parking. In addition, Company Personnel shall comply with all applicable laws and regulations in performing the Services.
VII.5 Subcontracting. Company may use subcontractors to perform Services, but only in compliance with this Section 7.5. Company shall be responsible for the performance of its subcontractors. Company shall enforce agreements with its subcontractors with at least the same degree of diligence that Company uses to enforce its own similar agreements but in no event less than reasonable efforts. Company shall immediately notify Licensee if Company becomes aware of any breach of any such agreement.
ARTICLE VIII COMPENSATION
VIII.1 Amounts Payable. Licensee shall pay Company the Subscription Fee for the Program and Services as set forth in the applicable Change Order. The Subscription Fee specified in the Change Order is all-inclusive in connection with any Transaction; all Services provided by Company in connection with any Transaction, including implementation, installation, training, maintenance and support, will be included in the License Fee and provided to Licensee at no additional cost, and no additional charges will be made to Licensee for any other licenses, services, or items. Company may charge additional fees to Licensee 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 (collectively, “Additional Services”); provided, however, that the fees for such Additional Services shall be consistent with the travel policy set forth in Section 8.2 and with Company’s Published Rate (as defined below).
2033839.1 7 VIII.2 Travel Policy. Licensee shall reimburse Company for all reasonable Travel Expenses incurred by Company in connection with Additional Services, provided that: (a) Company uses commercially reasonable efforts to minimize all such Travel Expenses and (b) obtains the prior consent of Licensee to an estimate of such Travel Expenses.
VIII.3 Service Level Credits. Schedule 4.2 sets forth specified Service Level Credits which shall be granted to Licensee if and when Company’s actual performance of Services fails to meet certain levels, as measured against the Service Levels. Service Level Credits are intended to reflect, to some extent, the diminished value of Company’s Services in such events, but are not intended to constitute penalties or liquidated damages. In no event shall Performance Credits be Licensee’s sole and exclusive remedy with respect to any failure of Company to comply with applicable Service Levels.
VIII.4 Published Rate. Company shall establish an hourly rate for Additional Services, as reflected in Exhibit 8.3 attached hereto and incorporated herein by this reference (the “Published Rate”), as such Published Rate may be adjusted periodically pursuant to Section 7.4.
VIII.5 Adjustment for Amounts Payable. Beginning not earlier than the first (1st) anniversary of the Effective Date, Company shall be permitted to increase the support and maintenance fees, not more than once per year, by not more than the rate that CPI (as defined below) increased for the previous year (which may be calculated by using the most recent CPI statistics available as of the time that the increased fees are determined), plus two percent (2%). “CPI” means the “Consumer Price Index for All Urban Consumers (“CPI-U”), All Items” as reported by the U.S. Department of Labor.
VIII.6 Overtime. Licensee shall have no obligation to pay or reimburse Company for overtime wages that Company or its subcontractors are required to pay Company Personnel (including wages for overtime expended to meet a deadline). Company is responsible for managing Services in a manner that does not give rise to overtime expense.
VIII.7 Invoicing Practices. Company’s invoices shall clearly indicate the applicable month for the Subscription Fee.
ARTICLE IX OBLIGATIONS OF THE PARTIES
IX.1 General Obligations. During the Term, each Party:
(a) will conduct its business (including, without limitation, performance of its obligations under this Agreement) in a manner that does not reflect unfavorably on the goodwill and reputation of the other Party, except with respect to good faith non slanderous responses to third party reference requests of Licensee regarding the Licensed Programs or the Services; and
(b) will refrain from engaging in deceptive, misleading or unethical practices detrimental to the other Party and the Licensed Programs.
2033839.1 8 IX.2 Nondisclosure.
(a) As a result of this Agreement, each Party will gain access to the other Party’s Confidential Information. Each Party shall: (i) exercise the same degree of care and protection with respect to another Party’s Confidential Information that it exercises with respect to its own Confidential Information, and no less than that required by law; and (ii) not directly or indirectly disclose, copy, distribute, republish, or allow access to any Confidential Information of another Party to a third party. Notwithstanding the above: (i) Licensee may disclose Company’s Confidential Information to authorized Users of Licensee (provided that such authorized Users have an obligation of confidentiality to Licensee); (ii) Company may disclose Licensee Confidential Information to Company’s employees who have a need to know and who have entered similar written confidentiality agreements with Company; and (iii) any Party may disclose another Party’s Confidential Information if required by law (including court order or subpoena), provided that the owner of the Confidential Information may require the disclosing Party to request the appropriate court or governmental body to seal the record that will contain such Confidential Information. Unless otherwise authorized in writing, upon the earlier to occur of (1) expiration of the Term; (2) termination of this Agreement; or (3) request of the disclosing Party, the receiving Party will promptly return to the disclosing Party that disclosing Party’s Confidential Information. The information furnished to any Party will only be used and reproduced in connection with that Party’s rights and obligations under this Agreement. Company shall not use any information gained through or under this Agreement, except during the Term hereof for research purposes to improve the efficiency and quality of patient care, and only with the prior written permission of an authorized representative of Licensee. The provisions of this Section will survive the expiration or termination of this Agreement.
(b) If Confidential Information of a Party is required to be disclosed by the receiving Party pursuant to law, regulation, judicial order or other legal process, the receiving Party may disclose such Confidential Information as legally required provided the disclosing Party is given advance prompt written notice and an opportunity to seek confidential treatment thereof and/or obtain a protective order therefor, and the receiving Party required to make such disclosure cooperates fully with the disclosing Party to protect the disclosing Party’s Confidential Information.
(c) Monetary damages may be inadequate to compensate for a breach of the confidentiality provisions contained herein. If such breach occurs, the injured Party may be entitled to such injunctive relief and any and all other remedies available at law or in equity
IX.3 Compliance with Laws. In performing its respective obligations under this Agreement, each Party shall materially comply with all applicable laws, regulations, rules, orders and other requirements, now or hereafter in effect, of any governmental authority of competent jurisdiction (including, without limitation, all applicable export control laws, regulations, rules, orders and other requirements), to the extent applicable to its performance or deliveries hereunder.
IX.4 Federal Reporting Requirements. To comply with federal reporting requirements, in accordance with criteria presently or hereafter developed by the Department of Health and Human Services as provided in Section 952 of the Omnibus Reconciliation Act of 1980, 42
2033839.1 9 U.S.C. Section 1395x(v)(1)(A) et seq., Company shall, until the expiration of four (4) years after the furnishing of any services pursuant to this Agreement, make available, upon the written request of the Secretary of Health and Human Services or the Comptroller General of the United States, or any of their duly authorized representatives, copies of this Agreement and any books, documents, records and other data of Company that are necessary to certify the nature and extent of costs incurred by Licensee for such services. If Company carries out any of its duties under this Agreement through a subcontract with a related organization involving a value or cost of ten thousand dollars ($10,000) or more over a twelve (12) month period, Company shall cause such subcontract to contain a clause to the effect that, until the expiration of four (4) years after the furnishing of any services pursuant to said subcontract, the related organization will make available upon the written request of the Secretary of Health and Human Services or the Comptroller General of the United States, or any of their duly authorized representatives, copies of records of said related organization that are necessary to certify the nature and extent of cost incurred by Company for such services.
IX.5 HIPAA. Company is a “Business Associate” and Licensee is a “Covered Entity” as such terms are defined under the Health Insurance Portability and Accountability Act of 1996 and rules and regulations promulgated thereunder (“HIPAA”). Company and Licensee covenant to comply with comprehensive privacy and security policies and procedures related to individually identifiable health information required by HIPAA and other related laws. Company shall be bound by the obligations of a Business Associate, as such obligations are more specifically defined in the HIPAA Business Associate Agreement attached hereto as Exhibit 9.5.
ARTICLE X PROPRIETARY RIGHTS
X.1 The Program. As between the Parties, Company and its suppliers shall retain ownership of all IP Rights in the Program, or other items, and any Confidential Information of Company provided to Licensee, including any IP Rights in existence as of the Effective Date (“Company Proprietary Technology”). Licensee acquires no rights to Company Proprietary Technology except for the licenses expressly granted under this Agreement or any Change Order.
X.2 Trademarks. Nothing in this Agreement shall grant any Party any ownership interest, license or other right to any other Party’s trade names, trademarks or service marks.
ARTICLE XI REPRESENTATIONS AND WARRANTIES
XI.1 Compliance with Law. Each Party represents and warrants it will comply with all applicable laws, regulations and orders of any governmental authority of competent jurisdiction in its performance under this Agreement.
XI.2 Program. In each Transaction, Company warrants to Licensee that, during the applicable Warranty Period:
2033839.1 10 (a) The Program and other Deliverables, including any media on which the Program or a portion of the Program is provided, will be free from material defects;
(b) The Program and other Deliverables, and each component and function thereof, shall be capable of operating fully and correctly on the combination of the computer hardware, telecommunications equipment, operating system environment identified in the Deliverable’s Specifications; and
(c) The Program will operate in accordance with its Specifications and Documentation.
XI.3 Services. In each Transaction, Company warrants to Licensee that, during the applicable Warranty Period:
(a) all Services will be performed in a competent and professional manner in accordance with industry standards and practices and professional standards generally applicable to such Services and deliverables; provided, however, that where this Agreement specifies a particular standard or criteria for performance, this warranty is not intended to and does not diminish that standard or criteria for performance; and
(b) each of the Company Personnel will have the proper skill, training and background to perform his or her assigned tasks; and all Services shall be performed in accordance with the applicable SOW.
XI.4 Documentation. In each Transaction, Company warrants to Licensee that all Documentation provided by Company shall be accurate and complete and shall be revised by Company on a timely basis at no cost to Licensee to reflect such changes and updates to the subject of such documentation that Company is required to make under this Agreement and the applicable Change Order.
XI.5 Title; Intellectual Property. In each Transaction, Company represents and warrants to Licensee that if any part of the Program contains software belonging to a third party (“Third Party Software”), Company has full power and authority and has acquired all rights and licenses in the Third Party Software as necessary to embed it in the Program and/or sublicense it to Licensee.
XI.6 Defects. Company warrants to Licensee that for a period of ninety (90) days from first productive use of the Program (the “Warranty Period”):
(a) The Program and other Deliverables, including the media on which the Program is provided (if applicable), will be free from defects in materials and workmanship and will operate without Material Failure in accordance with Company’s specifications for the Program;
(b) All other Deliverables, and each component and function thereof, shall be capable of operating fully and correctly on the combination of the computer hardware, telecommunications equipment, and operating system environment identified in the
2033839.1 11 Specifications provided Licensee meets Company’s minimum specification requirements for computer hardware, telecommunications equipment and operating system environment.
XI.7 Meaningful Use Company will use diligent efforts to obtain certification for the software as Certified EHR Technology under the Health Information Technology for Economic and Clinical Health Act (the “HITECH Act”), as those certification requirements may evolve over time. If Company fails to obtain certification within ninety (90) days after the beginning of the applicable Reporting Period in a Payment Year that Licensee is actively seeking to demonstrate Meaningful Use, provided Licensee continues to subscribe to the Program and maintains a valid agreement 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. The foregoing is Licensee’s sole and exclusive remedy in the event Company fails to obtain certification. Company will keep Licensee informed of Company’s certification status by posting such status at www.gehealthcare.com/hitech (or some other location that of which Company may inform Licensee). It is Licensee’s responsibility to ensure Licensee meets all the requirements to qualify for the incentive payments, including “meaningful use”, and to confirm that the Company software Licensee is using is certified according to HITECH criteria. Company’s obligations under this section apply only to the then-most current version of Company’s Centricity EMR or Centricity Practice Solution software products. Company’s obligations are contingent upon Licensee then-receiving and paying for support services and complying with the requirements of the Company service policy and, if Company so requires, upon Licensee installing software fixes, patches or updates or migrating to a new or different Company software offering. All capitalized terms shall the definitions set forth in this Agreement, the HITECH Act or any applicable implementing regulations.
XI.8 Litigation. As of the date of execution of this Agreement, Company to the best of its knowledge represents and warrants that there is no action, suit, claim, investigation or legal proceeding of any kind that this pending, or to the best of Company’s knowledge, threatened against, by or affecting Company or the Program, which, if adversely determined, might materially adversely affect the Program or restrict Company’s ability to consummate the Transaction and Company knows of no basis for any such action, suit, claim, investigation or proceeding. Company as used herein refers to IITS USA Corp. and to no other entity or division within the General Electric Company.
XI.9 Continuing Warranties. All of the representations, warranties and covenants of this Article that are applicable to the Program shall be deemed to be made with respect to any updates and upgrades provided by Company in accordance with the Centricity Software Support Policy attached hereto as Schedule 6.3.
XI.10 If there is any breach of a warranty contained in Section 11, Company will promptly re-perform any non-conforming services for no charge as long as Customer provides reasonably prompt written notice to GE Healthcare 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 ninety (90) days after receiving written notice from Licensee (so long as Licensee provided written notice of a valid claim within the warranty period), Customer may terminate this agreement and obtain a refund of the applicable license fees.
2033839.1 12 XI.11 DISCLAIMER. Company does not warrant (i) that the Program will be error-free or uninterrupted or that all errors will be corrected or (ii) the accuracy of codes, prices, or other data contained in Software that has been incorporated into or included in the Program. The warranties do not apply to Licensee’s: (a) failure to follow in all material respects written recommendations or instructions; (b) using or combining the Program with products or services of others or with products or services incompatible with the Program; (c) breach of Licensee’s obligations under this Agreement; or (d) third party software. COMPANY HEREBY DISCLAIMS ANY IMPLIED, STATUTORY OR OTHER WARRANTIES NOT EXPRESSLY MADE HEREIN, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. NO INFORMATION, WHETHER ORAL OR WRITTEN CREATES ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
XI.12 Medical Diagnosis, Treatment and Billing. Licensee acknowledges and agrees that all clinical and medical treatment, diagnostic decisions and billing decisions are the responsibility of Licensee and its professional healthcare providers or billing specialists. The Solution does not make clinical, or other decisions (such as narrative conditions, coded diagnosis, submission of claims) and is not a substitute for competent, properly trained and knowledgeable staff who bring professional judgment to the information presented by the software. Any and all financial and management information produced by the Solution must be tested for reasonableness and accuracy before any actions are taken or reliance placed on it. Although Company and its third-party vendors have used reasonable care in obtaining information from sources believed to be reliable, Licensee acknowledges that it is Licensee’s obligation to be informed about any changes in billing rules and regulations or to clinical information or guidelines that may not be reflected in the software. The absence of an alert or warning for a given course of treatment, drug or drug combination should not be construed to indicate that the treatment, drug or drug combination is safe, appropriate or effective in any given patient.
XI.13 Third Party Data Restrictions. Licensee acknowledges and agrees that the Solution provides access to certain data licensed by Company from third parties, including the Current Procedural Terminology database (“CPT”) licensed from the American Medical Association (“AMA”) and Drug Information Framework database from a third party. Access to and use of CPT and any updates thereto is dependent on GE Healthcare’ continued contractual relations with the AMA. Company will use commercially reasonable efforts to continue providing access to the CPT, but will not be responsible for any failure to provide the CPT and updates thereto. Licensee shall not copy, publish, translate, transfer, or create derivative works of the CPT or any part thereof, or use information contained in the CPT in any public electronic bulletin board or public computer based information system (such as the Internet). The CPT is protected under copyrights held by the AMA, and Licensee will not remove any proprietary rights notices (including copyright and trademark notices) appearing on or with CPT data within or output by the Solution.
THE CPT IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. COMPANY AND THE AMA DISCLAIM ANY AND ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, NON-INFRINGEMENT, OR
2033839.1 13 COMPLETENESS OF DATA WITHIN THE CPT. NEITHER COMPANY NOR THE AMA WILL HAVE ANY LIABILITY FOR ANY DAMAGES OR OTHER CONSEQUENCES ARISING FROM USE, MISUSE, OR INTERPRETATION OF INFORMATION OR DATA IN THE CPT. COMPANY EXPRESSLY STATES THAT IT DOES NOT WARRANT: (A) DRUG INFORMATION, DRUG AND ALLERGY SCREENING TESTS, DOSAGE INFORMATION; AND (B) THE CPT AND ICD CODES GENERATED BY THE SOFTWARE OR SAAS; AND ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. COMPANY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, NON-INFRINGEMENT, OR COMPLETENESS OF DATA. COMPANY WILL NOT HAVE ANY LIABILITY FOR ANY DAMAGES OR OTHER CONSEQUENCES ARISING FROM USE, MISUSE, OR INTERPRETATION OF INFORMATION OR DATA.
ARTICLE XII LIMITATION OF LIABILITY
XII.1 Limitation of Liability. EACH PARTY EXPRESSLY WAIVES ALL RIGHTS TO A JURY TRIAL IN CONNECTION WITH ANY DISPUTE ARISING UNDER THIS AGREEMENT. EXCEPT FOR INDEMNIFICATION OBLIGATIONS EXPRESSLY SET FORTH IN THIS AGREEMENT, COMPANY'S (AND ITS REPRESENTATIVES’) CUMULATIVE LIABILITY UNDER THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION, SHALL NOT EXCEED THE TOTAL PRICE PAID BY THE LICENSEE FOR THE PRODUCTS AND SERVICES HEREUNDER. NEITHER LICENSEE NOR COMPANY (NOR ITS REPRESENTATIVES) SHALL HAVE LIABILITY TO THE OTHER UNDER THIS AGREEMENT FOR ANY PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES. The limitation of liability and exclusion of damages shall apply even if the limited remedies fail of their essential purpose.
XII.2 Basis of the Bargain. The Parties have each agreed to the fees and entered into the Agreement in reliance upon the limitations of liability and disclaimers of warranties and damages set forth in the Agreement, and the same form an essential basis of the bargain between the Parties.
ARTICLE XIII INDEMNIFICATION
Company will defend, indemnify and hold harmless Licensee from any third-party claims brought against Licensee for infringement of intellectual property rights arising from Licensee’s use of the Company software licensed by Licensee from Company in accordance with the documentation and within the license scope granted in this agreement. If any such claim materially interferes with Licensee’s use of the Company software, Company shall, at its option: (i) substitute functionally equivalent non-infringing products; (ii) modify the Company product so that it no longer infringes but remains functionally equivalent; (iii) obtain for Licensee at
2033839.1 14 Company’s expense the right to continue to use the infringing Company product; or (iv) if the foregoing are not commercially reasonable, refund to Licensee the purchase price, as depreciated (based on five year’s straight-line depreciation), for the Company product that gave rise to the claim. Any such claims against Licensee arising from Licensee’s use of the Company software after Company has notified Licensee to discontinue use of such equipment and/or software and offered one of the remedies set forth in clauses (i) through (iv) above are the sole responsibility of Licensee. This section represents Licensee’s sole and exclusive remedy (and Company’s sole and exclusive liability) regarding any claim of infringement associated with the Company manufactured equipment and/or proprietary software and/or any use thereof. Company shall not have any obligation to Licensee hereunder: (a) for damages sought by a third-party claimant based on or resulting from the amount of revenues or profits earned or other value obtained by the use of such Company product, or the amount of use of such Company product; or (b) for infringement claims based on or resulting from: (i) the use of such Company product in combination with any computer software, tools, hardware, equipment, or any other materials, or any part thereof, or services, not furnished by Company or authorized by Company in its documentation; (ii) the use of such Company product in a manner or environment, or for any purpose, for which Company did not design or license it, or in violation of Company’s instructions on use; or (iii) any modification of such Company product by Licensee or any third party. This indemnification obligation is expressly limited to the product purchased or licensed by Licensee from Company. Company will defend, indemnify and hold harmless Licensee from any third-party claims brought against Licensee to the extent such claims are proximately caused by the negligent act or omission of Company and are determined by a court of competent jurisdiction to be a legal liability of Company. Licensee will defend, indemnify and hold harmless Company from any third-party claims brought against Company to the extent such claims are proximately caused by the negligent act or omission of Licensee and are determined by a court of competent jurisdiction to be a legal liability of Licensee. Company will defend, indemnify and hold harmless Licensee from any third-party claims brought against Licensee to the extent such claims are proximately caused by Company’s breach of the confidentiality obligations hereunder (including breach of any business associate agreement between the parties) and are determined by a court of competent jurisdiction to be a legal liability of Company. Licensee will defend, indemnify and hold harmless Company from any third-party claims brought against Company to the extent such claims are proximately caused by Licensee’s breach of the confidentiality obligations hereunder (including breach of any business associate agreement between the parties) and are determined by a court of competent jurisdiction to be a legal liability of Licensee. All of the above indemnification obligations are conditional upon the indemnified party providing the indemnifying party prompt written notice of the third-party claim after receipt of notice of such claim, allowing the indemnifying party to control the defense and disposition of such claim, and reasonably cooperating with the indemnifying party in the defense. The indemnifying party shall not be responsible for any compromise made by the indemnified party or its agents without the indemnifying party’s consent.
2033839.1 15 ARTICLE XIV RESERVED
ARTICLE XV TERM AND TERMINATION
XV.1 Term of Agreement. The term of this Agreement shall commence on the Effective Date and shall remain in effect until terminated in accordance with this ARTICLE XIV.
XV.2 Term of Program. Support and Maintenance services are provided on an 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 twelve (12) months unless earlier terminated under this ARTICLE XV (the “Initial Term”). At the conclusion of the Initial Term, the Licensee’s right to use the Program shall automatically renew for successive renewal terms of one (1) year(s) each (“Renewal Term”) upon payment of all applicable fees, unless either Party provides written notice of intent not to renew at least ninety (90) days prior to the commencement date of the Renewal Term, or unless terminated as provided for under this ARTICLE XV.
XV.3 Termination of Agreement for Cause. If a Default occurs under this Agreement, the non-defaulting Party (be it Licensee or Company) may terminate this Agreement, but only in accordance with the following procedure. The non-defaulting Party must provide the defaulting Party with a notice of termination, specifying in reasonable detail the nature of the alleged Default. The defaulting Party shall have a thirty (30) day grace period after its receipt of the notice of termination to correct or cure any Default specified therein. If the Default is not corrected within the thirty (30) day grace period, then this Agreement will automatically terminate at the conclusion of the grace period. When issuing a notice of termination under this Section, Licensee may also designate one or more then-pending Transactions which are to be deemed terminated for cause if the Default specified in the notice is not cured within the allotted thirty (30) day grace Change Order .
XV.4 Effect of Termination of a Transaction. Upon termination of a Transaction:
(a) ARTICLE X (Proprietary Rights), ARTICLE XI (Limitation of Liability), ARTICLE XII (Representations and Warranties) , ARTICLE XIII (Indemnification), ARTICLE XVI (Dispute Resolution), and ARTICLE XVII (Miscellaneous), and Section 1.1 (Definitions), Section 1.7 (Rights in Data) , Section 7.3 (Payroll Taxes), Section 9.2 (Federal Reporting Requirements), Section 9.4 (Nondisclosure), Section 9.5 (HIPAA) , Section 15.7 (Effect of Termination of Agreement) , Section 15.8 (Effect of Termination of a Transaction), and Section 15.9 (Transition Rights) shall survive termination of this Agreement with respect to any terminating Transactions.
(b) Each Party to the Transaction shall return to the other Parties any of the others’ Confidential Information that it may possess, except that Licensee need not return Confidential Information
2033839.1 16 embodied in Documentation that Licensee is entitled, under the terms of this Agreement, to continue using.
XV.5 Transition Rights. If reasonably requested by Licensee in an effort to avoid disruption of its provision of healthcare services to patients, upon termination or expiration of this Agreement (except where termination has occurred due to a uncured breach of this Agreement by the Licensee), Company shall continue to provide Licensee with access to the Program at then current rates subject to Licensee’s continued payment obligations, and shall provide professional services to Licensee on a time and materials basis at then current rates, to transition Licensee’s data into an in-house or third party solution. Such continued services shall be for no more than twelve (12) months from expiration or termination of this Agreement unless the parties agree otherwise.
ARTICLE XVI DISPUTE RESOLUTION
XVI.1 Performance Review. Subject to the terms of this Agreement, the procedures of this ARTICLE XVI shall control the resolution of any and all disputes that might arise among the Parties and that are related to this Agreement. The Parties shall first seek to resolve each dispute at the account director level as described below. If good faith negotiations at that level are unsuccessful in resolving such dispute, then either Party shall have the option, but shall not be required, to resolve the dispute at the executive level as described below. If good faith negotiations at that level are unsuccessful in resolving such dispute, then the Parties shall have the option, but shall not be required to, resolve the dispute through mediation.
XVI.2 Account Director Level Performance Review. The Company executive with primary responsibility for Licensee’s account and Licensee’s account director shall meet as often as the Parties determine to review the performance of either Party under this Agreement and to resolve the dispute. Written minutes of such meetings shall be kept. If these representatives are unable to resolve the dispute within thirty (30) calendar days after the initial request for a meeting, then either Party shall have the option to request an executive level performance review as provided below.
XVI.3 Executive Level Performance Review. Face-to-face negotiations shall be conducted by a senior executive officer of Licensee and a senior executive of Company. If these representatives are unable to resolve the dispute within fourteen (14) calendar days after the parties have commenced negotiations or thirty (30) calendar days have passed since the initial request for negotiations at this level, then any Party may proceed to court to enforce its rights or remedies hereunder.
XVI.4 Continued Performance. Except where clearly prevented by the area in dispute, the Parties shall continue performing their obligations under this Agreement while the dispute is being resolved under this Article unless and until the dispute is resolved or until this Agreement is terminated in accordance with the provisions herein.
2033839.1 17 ARTICLE XVII MISCELLANEOUS
XVII.1Governing Law, Exclusive Jurisdiction. This Agreement, and all the rights and duties of the Parties arising from or relating in any way to the subject matter of this Agreement or the transaction(s) contemplated by it, shall be governed by, and construed and enforced in accordance with, the laws of the United States and the state of California, as applied to agreements entered into and to be performed entirely within California between California residents, notwithstanding the actual residence of the Parties. Each Party consents to the exclusive personal jurisdiction and venue of the courts, state and federal, located in the county in which Licensee’s principal place of business is located.
XVII.2Entire Agreement; Order of Precedence. The Agreement, together with all exhibits, schedules, and all other documents expressly referred to herein, constitutes the complete and exclusive statement of the agreement of the Parties with respect to the subject matter hereof and supersedes all prior proposals, understandings, and agreements, whether oral or written, between the Parties with respect to the subject matter hereof.
XVII.3Familiarity with Agreement. The Parties represent and warrant that they are completely and thoroughly familiar with this Agreement and, therefore, shall not claim unfamiliarity with this Agreement as justification for noncompliance with its terms or conditions.
XVII.4Bankruptcy.
(a) General. If Company voluntarily or involuntarily becomes subject to the protection of the United States Bankruptcy Code, it is agreed that each Licensee, as a licensee of the Program, shall be entitled to all of the benefits of the Bankruptcy Code including, without limitation, the protections of Section 365(b) and the amendments to the Bankruptcy Code affected by the October 18, 1988 Intellectual Property Bankruptcy Protection Act, under any Change Order.
(b) Rejection of Agreement. If Company or the trustee in bankruptcy rejects a Transaction under Section 365 of the Bankruptcy Code, 11 U.S.C. § 365, Licensee may elect: (a) to treat the Transaction as terminated; or (b) retain Licensee’s rights under the applicable Transaction and this Agreement, specifically including, without limitation, the right to exercise its rights granted herein to the Program (and to all work-in-progress relating thereto). Failure by Licensee to assert its right to “retain its benefits” to the intellectual property embodied in any Program, pursuant to Section 365(n)(1)(B) of the Bankruptcy Code, 11 U.S.C. § 365, under an executory contract rejected by the trustee in bankruptcy shall not be construed by the courts as a termination of the Transaction by Licensee under Section 365(n)(1)(A) of the Bankruptcy Code.
XVII.5Force Majeure. If any party to any Transaction shall be prevented, hindered or delayed in the performance or observance of any of its obligations thereunder by reason of any act of God, war, riot, civil commotion, explosion, fire, government action, epidemic, or other circumstance beyond its control, but specifically excluding labor and union-related activities, (“Force Majeure Event”) and such delay could not have been prevented by reasonable precautions and cannot reasonably be circumvented by the affected party through the use of
2033839.1 18 commercially reasonable alternate sources, work-around plans, or other means, then such party shall be excused from any further performance or observance of the obligation(s) so affected for as long as such circumstances prevail and such party uses commercially reasonable efforts to recommence performance or observance whenever and to whatever extent possible without delay.. Any party so delayed in its performance shall use commercially reasonable efforts to immediately notify the other by telephone (to be confirmed in writing as soon as reasonably possible) and describe the circumstances causing such delay. Such notice shall include a detailed description of the affected party’s functions or obligations affected by such a delay, as well as details of any work-around plans, alternate sources or other means the affected party is using or shall use to minimize or circumvent the delay in performance of the affected party’s obligations hereunder. If any Force Majeure Event prevents, hinders or delays performance of a party’s obligations hereunder for more than ninety (90) calendar days, the party or parties not prevented from performing may, at its or their option, terminate the Transaction.
XVII.6Binding Nature and Assignment. Subject to all other provisions contained herein, this Agreement shall be binding on, and shall inure to the benefit of, the Parties and their respective successors and permitted assigns. Licensee has no right to assign any rights or to delegate any duties under this Agreement in whole or in part without Company’s prior written Consent. Notwithstanding the foregoing, Company may assign this Agreement if such assignment shall not materially affect the level of support and Maintenance Services provided to Licensee. Any attempted or purported assignment or transfer in violation of this Section shall be null and void. Nothing in this Agreement, express or implied, shall give to any person other than the Parties and their permitted assigns and successors hereunder, any benefit or any legal or equitable right, remedy or claim under this Agreement.
XVII.7Media Releases. No Party shall make any public or private announcement, media release, press conference or similar publicity relating to any aspect of this Agreement without the prior written consent of the other Party.
XVII.8 Standard of Care. Each Party shall, at all times, act with good faith and diligence with respect to their obligations hereunder.
XVII.9Agency. The Parties are independent contractors. Nothing in this Agreement shall be deemed to create an agency, employment, partnership, fiduciary or joint venture between the Parties. No Party (nor any agent or employee of that Party) shall make any representations or warranties or incur any liability on behalf of the others.
XVII.10 Severability. If any provision of this Agreement is or becomes illegal, invalid or unenforceable, such provision shall be deemed stricken from this Agreement and its illegality, invalidity or unenforceability shall not affect the remainder of the provisions of this Agreement, which shall remain in full force and effect. The Parties shall endeavor in good faith negotiations to replace any illegal, invalid or unenforceable provision with a valid, legal and enforceable provision, the economic effect of which comes as close as possible to the economic effect of the illegal, invalid or unenforceable provision.
XVII.11 Waiver. No delay or omission by a Party to exercise any right occurring upon any noncompliance or default by another Party with respect to any of the terms of this
2033839.1 19 Agreement shall impair any such right or power or be construed to be a waiver thereof. A waiver by one of the Parties of any of the covenants, conditions or agreements to be performed by one of the other Parties shall not be construed to be a waiver of any succeeding breach thereof or of any covenant, condition or agreement herein contained.
XVII.12 No Oral Modifications. No Party shall be bound by any conditions, definitions, understandings or representations with respect to the subject matter of this Agreement other than as expressly provided herein, or as duly set forth on or subsequent to the Effective Date hereof in writing and signed by a proper and duly authorized representative of the Party to be bound thereby.
XVII.13 Notices. Wherever under this Agreement one Party is required to give notice to the others, such notice shall be deemed effective: (a) five (5) calendar days after deposit in the United States Mail, postage prepaid, certified or registered mail, return receipt requested; (b) three (3) calendar days after deposit with a national overnight courier; or (c) upon delivery if delivered in person or by messenger, in each case, addressed to the addresses for notices set forth on the signature page hereof (or such other addresses as any party may be notified of as described above).
XVII.14 Captions and Headings. The division of this Agreement into Sections and the insertion of captions and headings are for convenience of reference only and shall not affect the construction or interpretation of this Agreement. The terms “this Agreement,” “hereof,” “hereunder” and any similar expressions refer to this Agreement and not to any particular Section or other portion hereof. Unless something in the subject matter or context is inconsistent therewith, references herein to Sections are to Sections of this Agreement.
XVII.15 Recitals. The Recitals to this Agreement are incorporated by this reference as if fully set forth herein.
XVII.16 Attorneys’ Fees. In the event of any dispute or controversy between the Parties in connection with this Agreement, any exhibit or schedule attached hereto, or in connection with the interpretation or enforcement of any provision hereof or thereof, each Party in such dispute or controversy will be responsible for its own legal fees and related costs.
[SIGNATURES FOLLOW]
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
2033839.1 20 SIGNATURE PAGE
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the Effective Date.
“LICENSEE”: “COMPANY”
______
By: Check here * By: Check here *
Print Name Print Name
Title: Title:
Date: Date: * By checking this box, the Licensee and Company is electronically signing this Agreement and expressly agreeing to its terms and conditions in the same manner as if it had affixed its signature in ink.
LICENSEE’S ADDRESS FOR NOTICES: COMPANY’S ADDRESS FOR NOTICES:
Attn: Attn:
2033839.1 21 SCHEDULE 1.1
DEFINITIONS
Whenever a term is capitalized in this Agreement it will have the specific meaning below:
“Authorized Users” means the number of persons that are entitled to use the Licensed Programs, as identified in the applicable Change Order. “Authorized User” means any one of the Authorized Users.
“ Change in Control” means: (a) any transaction or combination of transactions as a result of which either a person, an entity, or a group of persons and/or entities that customarily has acted in concert and that presently is in control of Company ceases to be in control of Company; or (b) the sale, exchange, or other disposition (including disposition in full or partial dissolution) of the stock of Company or the assets of Company that constitute a substantial or material business segment of Company; or (c) the divestiture, in whole or in part, of the business unit or division of Company that has provided the Program, Services, and/or Deliverables to Licensee. A Change in Control shall not include any public stock offering.
“Company Marks” means the logos, marks, the Program name, and other trademarks, trade names and service marks (whether or not registered) which are designated from time to time by Company for identification of the Program or other Licensed Programs that include, interface with, or otherwise use the Program. The Company Marks as of the Effective Date are set forth on Schedule 3.3 (a) attached hereto. Company may change the Company Marks from time to time upon written notice to Licensee.
“Confidential Information” means (a) business or technical information of any Party or User, including, without limitation, information relating to a Party’s or User’s software, documentation, source code, object code, modifications to the foregoing, (b) designs, costs, finances, marketing plans, business opportunities, personnel, research, development, know-how; (c) any information designated “confidential” or “proprietary” or which, under the circumstances, should reasonably have been understood to be confidential, proprietary or trade secret information of the disclosing party, and (d) the terms and conditions of this Agreement.
“Default” means the occurrence of one or more of the following events:
(a) appointment of a receiver for all or substantially all of Company’s or Licensee’s assets or any corporate action taken by Company’s Manager(s) or Member(s) in furtherance of the above action;
(b) failure to achieve any milestone by the due date set forth in the applicable Implementation Work Plan caused solely and directly by an act or omission of the Company (including its sub-contractors;
a material breach of the provisions of this Agreement that is not cured within thirty (30) days after the non-breaching Party gives notice of the breach to the breaching Party.
2033839.1 22 “ Deliverables” means any Program or Service provided to Licensee in any Transaction, including without limitation, any Program made available in a hosted environment.
“Documentation” means: (a) all Company standard operations and user manuals made available by Company to Licensee..
“IP Rights” means all intellectual property rights, including without limitation: (a) all patent rights and other rights throughout the world in useful inventions and ornamental designs that are granted under patent law, including any rights in patent applications, or rights to file patent applications and any related rights; (b) all copyrights, moral rights, and other related rights throughout the world in works of authorship (including text and other literary works, musical works, sound recordings, audiovisual works, pictorial works, graphic works and computer software), mask works, compilations and collections of information, including all registrations and applications therefor; (c) all trademarks, service marks, trade dress or other proprietary trade designations protected by law, including all registrations and applications therefor; (d) all rights throughout the world to proprietary know-how, trade secrets and other confidential information, whether arising by law or pursuant to any contractual obligation of non-disclosure; and (e) all other rights covering industrial or intellectual property recognized in any jurisdiction.
“License” has the meaning set forth in the Agreement.
“Licensed Programs” means, collectively, the Centricity Advance solution as further described in any mutually agreed upon quotation or Documentation, any Program Updates, the Documentation. Licensee Marks” means the logos, marks, facility names, and other trademarks, trade names and service marks (whether or not registered) which are designated from time to time by Licensee for identification of the Licensee. The Licensee Marks as of the Effective Date are set forth on Schedule 3.3 (b) attached hereto. Licensee may change the Licensee Marks from time to time upon written notice to Company.
“ Material Failure” means, with respect to a particular Deliverable, a failure of the Deliverable to perform in accordance with its Specifications and Documentation, which failure renders the Deliverable non-functional or which failure materially impairs the Deliverable’s functionality, even if the Deliverable can continue to operate. Examples of Material Failures include, without limitation, failure of a Deliverable to properly inter-operate with other programs or equipment as required under the Deliverable’s Specifications; failure of a Deliverable to generate correct output; and any repeated failure of a Deliverable that requires the Deliverable to be restarted.
“Program” means collectively the Centricity Advance solution as further described in the Documentation, together with all Program Updates, and all related Documentation.
“ Program Updates” means all error corrections, maintenance releases, updates, upgrades, revisions, modifications, enhancements, and new versions of the Program that Company makes commercially available from time to time during the Term.
2033839.1 23 “ Services” means Hosting Services, Implementation Services, Maintenance Services, Additional Services, and any other services necessary to operate the Program.
“ Service Levels” and “Service Level Credits” have the meaning set forth in Schedule 4.2 attached hereto and incorporated by reference.
“Site” means a single Internet website hosted by or for one or more Users, including all pages, sections, and subdomains thereof.
“Specifications” means, collectively, the technical requirements set forth in the SOW in Schedule 1.5 hereto, in addition to any written specifications that Company may provide regarding the Licensed Programs. To the extent of any conflict between the technical requirements set forth in the SOW and any materials provided by Company, the terms of the SOW shall govern.
“ Subscription Fee” means the fee for the License and the Services described in the Agreement.
“Term” means the period of time specified in Section 15.1 hereof.
“Travel Expenses” means the aggregate cost of all reasonable travel, lodging and meal expenses actually and necessarily incurred, including, but not limited to (a) air travel (coach fares), (b) local travel (via taxicab and/or shuttle bus or van), (c) mileage (where the local travel is done using one’s own automobile or vehicle) at then current reimbursement rates allowable under applicable law, (d) hotel accommodations; and (e) three (3) meals per day (including hotel room service for breakfast).
2033839.1 24 SCHEDULE 1.2
CHANGE ORDER
ORDER # OPERATING UNIT SALES REP.
THIS CHANGE ORDER (this “Change Order”) is between the General Electric Company, by and through its GE Healthcare division (referred to herein as “GE Healthcare”), on its own behalf and as successor in interest to GE Medical Systems, and the customer named below (the “Customer”). GE Healthcare (either directly or through one of its affiliated entities, such as GE Medical Systems Information Technologies, Inc., and/ or GE Healthcare IITS USA Corp. (formerly known as IDX Information Systems Corporation)) and Customer have previously executed license and/or services agreement(s) (the “Existing Agreement(s)”). The Existing Agreement(s) govern the sale of computer equipment, the licensing of computer programs and the delivery of services. The terms of this Change Order amend and supplement the Existing Agreement(s) and in the event of any conflict or inconsistency between the applicable terms of the Existing Agreement(s) and the terms of this Change Order, the terms of this Change Order shall govern and control with respect to the subject matter herein; otherwise, all provisions of the Existing Agreement(s) remain in full force and effect.
IMPORTANT CUSTOMER ACTION: Please indicate only one form of payment for this arrangement. If financing by "GE HFS Loan" or "GE HFS Lease" is NOT selected at this time, then you may NOT elect to seek financing with GE Healthcare Financial Services (HFS) at a later date to fund this arrangement. Cash GE HFS Loan GE HFS Lease Third-Party Lease (Please identify finance company )
General Electric Company, CUSTOMER NAME by and through its GE Healthcare division
By: By:
Name Name
Title Title
Date Date
2033839.1 25 Definitions. Unless otherwise set forth below, all capitalized terms used in this Change Order have the definitions given in the Existing Agreement(s).
“ Delivery” means, with respect to any item of GE Healthcare proprietary software or documentation provided hereunder, the first to occur of: (i) communication to Customer through electronic means that allows Customer to take possession of the first copy or product master, or (ii) delivery by GE Healthcare of the first copy or product master in person to Customer or to any common carrier or delivery service for transport to Customer. With respect to any item of hardware or third party software, the delivery of the hardware or third party software by GE Healthcare or the supplier of the hardware or third party software to a common carrier for transport to the Customer or to any location specified in writing by or on behalf of the Customer. With respect to any services, the performance of such services by GE Healthcare or its subcontractors.
Suppliers’ Terms. Third party software and third party hardware, if any, are covered by the third-party manufacturer/supplier’s warranties, to the extent available. CUSTOMER ACKNOWLEDGES THAT NO EXPRESS OR IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, SYSTEM INTEGRATION AND DATA ACCURACY, HAVE BEEN MADE BY GE HEALTHCARE AS TO ANY THIRD PARTY SOFTWARE OR THIRD PARTY HARDWARE. Taxes. Prices do not include sales, use, gross receipts, excise, valued-added, services or any similar transaction or consumption taxes (“Taxes”). Customer acknowledges and agrees it shall be responsible for the payment of any such Taxes to GE Healthcare unless it otherwise timely provides GE Healthcare with a valid exemption certificate or direct pay permit. In the event GE Healthcare is assessed Taxes, interest and penalty by any taxing authority, Customer agrees to reimburse GE Healthcare for any such Taxes, including any interest or penalty assessed thereon. Each party is responsible for any personal property or real estate taxes on property that the party owns or leases, for franchise and privilege taxes on its business, and for taxes based on its net income or gross receipts.
Terms. Customer and GE Healthcare expressly incorporate into this Change Order only the schedules and supplements attached hereto or indicated as included below (collectively “Attachments”) and no other documents or writings (including but not limited to, any terms and/or conditions contained in or attached to Customer’s purchase orders, shipping forms or other similar documents) shall be considered a part of this Change Order without GE Healthcare’s prior written consent. Software described below or on any Attachment is licensed to Customer pursuant to the license provisions set forth in the Existing Agreement(s), unless otherwise agreed to in writing by GE Healthcare and Customer. Services are provided in accordance with the applicable service terms of the Existing Agreement(s). Hardware is sold in
2033839.1 26 accordance with the hardware terms of the Existing Agreement(s). Credits or additional charges, as appropriate, are shown below or on an Attachment. The full amount of the price for each item listed below or on any Attachment shall be due and payable upon Delivery, unless otherwise noted in this Change Order or attached Payment Schedule. Taxes, if applicable, are subject to correction. If no amount is shown, Taxes, if applicable, will be invoiced upon determination at a later date. For the avoidance of doubt, any installation services identified in the quotation are a required component of the quotation and of the overall consideration between GE Healthcare and Customer. Such services are not optional.
CUSTOMER ACKNOWLEDGES AND AGREES THAT NEITHER GE HEALTHCARE NOR ITS SUPPLIERS HAVE ANY OBLIGATION TO DELIVER THE HARDWARE OR SOFTWARE OR PROVIDE THE SERVICES LISTED HEREUNDER UNLESS GE HEALTHCARE RECEIVES AN EXECUTED COPY OF THIS CHANGE ORDER AT THE FOLLOWING FAX NUMBER .
2033839.1 27 ATTACHMENT B TO CHANGE ORDER:
IMPLEMENTATION WORK PLAN (If applicable to a particular Change Order)
[To be negotiated and mutually agreed to by the Parties as needed]
2033839.1 28 ATTACHMENT C TO CHANGE ORDER:
LICENSEE SITES
The following sites of Licensee are covered by the Change Order:
[To be completed by Licensee]
2033839.1 29 SCHEDULE 1.5
STATEMENT OF WORK AND SPECIFICATIONS
[To be negotiated and mutually agreed to by the Parties as needed]
2033839.1 30 ATTACHMENT 1.5
TECHNICAL SPECIFICATIONS
TECHNICAL & FUNCTIONAL REQUIREMENTS
Functional Requirements
a) e Prescribing/ Controlled Substances: Company agrees to provide the functional capability for the electronic prescribing of controlled substances and comply with the DEA’s requirements according to the Interim Final Rule released in March 2010. The following functional capability required by the DEA is as follows: (a) To sign a controlled substance prescription, the electronic prescription application must require the practitioner to authenticate to the application using an authentication protocol that uses two of the following three factors: (1) Something only the practitioner knows, such as a password or response to a challenge question. (2) Something the practitioner is, biometric data such as a fingerprint or iris scan. (3) Something the practitioner has, such as a device (hard token) separate from the computer to which the practitioner is gaining access. (b) If one factor is a hard token, it must be separate from the computer to which it is gaining access and must meet at least the criteria of FIPS 140-2 Security Level 1, as incorporated by reference in § 1311.08, for cryptographic modules or one-time- password devices. (c) If one factor is a biometric, the biometric subsystem must comply with the requirements of § 1311.116. GE COMMENT- THIS IS NOT CURRENTLY AVAILABLE IN THE GENERALLY AVAILABLE CENTRICITY ADVANCE PRODUCT.
2033839.1 31 b ) e Prescribing/ Durable Medical Equipment (DME): Company agrees to provide the functional capability for the electronic prescribing of DME. GE COMMENT- THIS IS NOT CURRENTLY AVAILABLE IN THE GENERALLY AVAILABLE CENTRICITY ADVANCE PRODUCT.
c ) Method for Collecting a Patient’s “ REAL Data”: Company agrees to meet the requirements of the “REAL Data” as outlined in the attached “REAL Data” document. GE COMMENT- THIS IS NOT CURRENTLY AVAILABLE IN THE GENERALLY AVAILABLE CENTRICITY ADVANCE PRODUCT.
d) Title X Reporting: Company agrees to provide “Title X Reporting” as an integrated report outlined in the attached “Title X Reporting” document. GE COMMENT- THIS IS NOT CURRENTLY AVAILABLE IN THE GENERALLY AVAILABLE CENTRICITY ADVANCE PRODUCT.
e ) ICD-10 Code Set: must include ICD-10 & ICD-9 code sets and functional capability to map across the two.
i. Compliance with the ICD-10 code set by 10/01/13 is required.
GE COMMENT- THIS IS NOT CURRENTLY AVAILABLE IN THE GENERALLY AVAILABLE CENTRICITY ADVANCE PRODUCT.
2. Technical Standards & Specification Requirements: GE- COMMENT- Cannot commit to meeting undeveloped standards in a particular time frame.
a) Information Exchange Support
Cal eConnect (CeC) is delivering a suite of services to facilitate the secure exchange of healthcare information within a trusted framework. The key software components that make up the Core Services are comprised of an Entity Level Provider Directory (ELPD), a Service Registry (SR), and an Individual Level Provider Directory (ILPD), that are based on specifications and standards that encompass those under development by ONC and include full support for provider discovery (as described for NHIN Direct and NHIN Connect), and negotiation of a mutual set of exchange standards (SR). The Trust Framework (TF) provides for digital certificates at both the ELPD and ILPD entity level to establish a peer-to-peer non-repudiation connection between trusted entities. In addition, the TF will specify the minimum standard allowed for encryption (SSL/TLS) of the resulting communication between trusted entities. Access to these Core Services shall be via secure web-services (SOAP and REST).
2033839.1 32 1. Usability : Company’s commercially released EHR application software product shall comply with and support, at its sole expense and within three (3) months of the Effective Date, unless circumstances allow or require a longer time period from Cal eConnect (“CeC’s”) public announcement of availability, all CeC interoperable component technology, messaging framework, certificate authority, software, and any other work products produced and deemed necessary, and that are reasonable and commercially accepted as standard within the United States, to provide seamless, transparent, and uninterrupted access to CeC’s services by any stakeholder, provider, hospital, organization, or entity
2. Interoperability : Company’s commercially released EHR application software product shall comply with and support, at its sole expense, for so long as such items are widely-used and accepted as standard, in perpetuity, all CeC interoperable standards, component technology, and work products deemed necessary, and that are reasonable and commercially accepted as standard within the United States to provide seamless, transparent, and uninterrupted communication with and access to CeC’s services by any stakeholder, provider, hospital, organization, or entity through the use of Company’s application.
3. Flexibility: Company’s commercially released EHR application software product shall comply with and support future federal or state standards related to electronic health information exchange and the implementation thereof in to the vendor’s commercially released application within 120 days of request by Licensee, unless circumstances or the standards allow or require for a longer time period.
4. Scalability: Company shall work with Licensee to implement technology and services, that are reasonable and commercially accepted as standard within the United States, that may be Inclusive of the needs of Public Health, Mental Health, and other California state agencies responsible for ensuring the private and secure exchange of electronic health information that is retained in an EHR and which is dependent on transmission through the use of a structured format in compliance with federal or state data standards, whether or not explicitly listed herein.
b) Content, Vocabulary and Privacy/Security Standards Required to Support
1. SNOMED Support – THIS IS NOT CURRENTLY AVAILABLE IN THE GENERALLY AVAILABLE CENTRICITY ADVANCE PRODUCT 2. Quality – PQRI GE supports a later standard
2033839.1 33 3. Problem Vocabulary list IHTSDO -THIS IS NOT CURRENTLY AVAILABLE IN THE GENERALLY AVAILABLE CENTRICITY ADVANCE PRODUCT
Patient Summary Record
1) Standard ‐ HL7 Clinical Document Architecture (CDA) Release 2, Continuity of Care Document
(CCD) a) Implementation specifications: HITSP Summary Documents using HL7 CCD Component HITSP/C32
2) Standard ‐ ASTM E2369 Standard Specification for Continuity of Care Record and Adjunct to
ASTM E2369 e‐Prescribing
ePrescribing
1) Standard ‐ The National Council for the Prescription Drug Programs (NCPDP)
Prescriber/Pharmacist Interface SCRIPT standard, a) Implementation Guide: Version 8, Release 1 (Version 8.1) October 2005
2033839.1 34 2) Standard ‐ NCPDP SCRIPT Standard
b) Implementation Guide: Version 10.6
Public Health Labs
1) Standard ‐ HL7 2.5.1
a) Implementation Specifications ‐ HL7 Version 2.5.1
b) Implementation Guide: Electronic Laboratory Reporting to Public Health, Release 1 Public Health Surveillance
Public Health Surveillance
1) Standard ‐ HL7 2.3.1
2) Standard ‐ HL7 2.5.1
2033839.1 35 a) Implementation specifications ‐ Public Health Information Network HL7 Version 2.5 Message
Structure Specification for National Condition Reporting Final Version 1.0 and Errata and Clarifications National Notification Message Structural Specification
Public Health Immunizations
1) Standard ‐ HL7 2.3.1
a) Implementation specifications ‐ Implementation Guide for Immunization Data Transactions
using Version 2.3.1 of the Health Level Seven (HL7) Standard Protocol Implementation Guide Version 2.2
2) Standard ‐ HL7 2.5.1
a) Implementation specifications ‐ HL7 2.5.1 Implementation Guide for Immunization
Messaging Release 1.0
2033839.1 36 Quality
1) Standard ‐ The CMS Physician Quality Reporting Initiative (PQRI) 2009 Registry XML
Specification
a) Implementation specifications ‐ Physician Quality Reporting Initiative Measure Specifications
Manual for Claims and Registry
Vocabulary ‐ Problem List
1) Standard ‐ The code set specified at 45 CFR 162.1002(a)(1) for the indicated conditions (i.e. ICD9‐
CM)
2) Standard ‐ International Health Terminology Standards Development Organization (IHTSDO)
Systematized Nomenclature of Medicine Clinical Terms (SNOMED CT®) July 2009 version
2033839.1 37 Vocabulary ‐ Procedures
1) Standard ‐ The code set specified at 45 CFR 162.1002(a)(2).
2) Standard - The code set specified at 45 CFR 162.1002(a)(5) (i.e. CPT‐4)
Vocabulary ‐ Labs
1) Standard ‐ Logical Observation Identifiers Names and Codes (LOINC®) version 2.27; ELINCS
Vocabulary ‐ Medications
2033839.1 38 Any source vocabulary that is included in RxNorm: a standardized nomenclature for clinical drugs produced by the United States National Library of Medicine.
Vocabulary ‐ Immunizations
1) Standard ‐ HL7 Standard Code Set CVX ‐Vaccines Administered, July 30, 2009 version
Vocabulary ‐ Race/Ethnicity
1) Standard ‐ The Office of Management and Budget Standards for Maintaining, Collecting, and
Presenting Federal Data on Race and Ethnicity, Statistical Policy Directive No. 15, October 30, 1997
Privacy/Security GE comment- cannot commit without detailed specifications and not possible for not yet documented algorithms.
1) Encryption and decryption of electronic health information:
2033839.1 39 In general ‐ Any encryption algorithm identified by the National Institute of Standards and
Technology (NIST) as an approved security function in Annex A of the Federal Information
Processing Standards (FIPS) Publication 140‐2
2) For data exchange ‐ Any encrypted and integrity protected link consistent with the standards
developed by CaleConnect and ONC for secure exchange of healthcare information between entities.
3) Record actions related to electronic health information: The date, time, patient identification, and user identification must be recorded when electronic health information is created, modified, accessed, or deleted; and an indication of which action(s) occurred and by whom must also be recorded
4) Verification that electronic health information has not been altered in transit Standard:
2033839.1 40 A hashing algorithm with a security strength equal to or greater than SHA‐1 (Secure Hash
Algorithm (SHA‐1) as specified by the National Institute of Standards and Technology (NIST) in
FIPS PUB 180‐3 (October, 2008)) must be used to verify that electronic health information has
not been altered.
5) Record treatment, payment, and health care operations disclosures: The date, time, patient identification, user identification, and a description of the disclosure must be recorded for disclosures for treatment, payment, and health care operations, as these terms are defined at 45 CFR 164.501
6) Other: HCPCS; Support Version 5010 of the ANSI X.12 standard for claims transactions by 1/01/12
2033839.1 41 3. Interface Development/Maintenance GE comment- Don’t currently support a transcription interface. Will not commit to complying with interfaces not yet specified.
Developm Developm ent ent Lifecycle Lifecycle (Subsequ Fees For Annual Directio (First ent Development Updates/fi Maintena n Message Type Practice) Practices) Cost xes nce Fees
d Lab Results
n Response from u request No cost for o Push from lab development/impleme b vendor/hospital ntation n I Radiology Reports No cost for Response from development/impleme request ntation Push from radiology facility Other Transcribed No cost for Reports development/impleme Response from ntation request Push from provider ADT Updates (if No cost for supported) development/impleme Response from ntation request Push from hospital
2033839.1 42 Continuity of Care No cost for Document (CCD) development/impleme Request for CCD ntation from another provider Response from another provider from request Push from data providers other than ones above Practice Management No cost for dev System or Disease elopment/implementa Management System tion Response from request Response from PMS or DMS
HIE – Community/Regional No cost for HIE development/impleme Query response ntation (clinical & demographic data)
HIE - CaleConnect/statewide service Query response to service registries
d Lab Orders No cost for
n Submit order to development/impleme
u lab ntation o vendor/hospital b
t Request for
u historical results
O Radiology Orders No cost for Submit order to development/impleme radiology free ntation standing facility/hospital Request for historical results
2033839.1 43 Request for Other No cost for Transcribed Reports development/impleme Request for ntation other transcribed reports Request/r Ad Hoc Query No cost for to other data providers development/impleme not included above ntation CCD No cost for Request for a development/impleme CCD from ntation another provider Response to other provider request for CCD ADT No cost for Push from development/impleme hospital ntation Request for ADT to hospital Practice Management No cost for System or Disease development/impleme Management System ntation Response from request Request to PMS or DMS
HIE – No cost for Community/Regional development/impleme Query for ntation patient clinical & demographic data HIE – No cost for CaleConnect/statewide development/impleme service ntation Query to service registries REC No cost for Clinical data & development/impleme ntation
2033839.1 44 other information to REC Requirements are in development)
2033839.1 45 REAL Data Attachment GE Comment- THIS IS NOT CURRENTLY AVAILABLE IN THE GENERALLY AVAILABLE CENTRICITY ADVANCE PRODUCT. This specification document provides functional requirements the Program must meet specific to the collection of patient data (race, ethnicity and language) and is referred to as “REAL” data. Also included are required standardized categories which facilitate the sharing, compiling and comparison of quality data.
The IOM Report, “Race, Ethnicity and Language Data: Standardization for Health Care Quality Improvement” (2010) served as the foundation for this document as it provides the most up-to-date method for collecting a patient’s “REAL” data in the United States today. To create the demographic categories specific to California, the IOM’s comprehensive category listings were cross-walked with the categories currently in use by Kaiser Permanente, OSHPED and Contra Costa Health Plan. Requirements that the Program must meet at minimum:
RACE AND ETHNICITY LANGUAGE NEED
HISPANIC ETHNICITY SPOKEN ENGLISH LANGUAGE PROFICIENCY a) Hispanic or Latino a) Very well b) Not Hispanic or Latino b) Well c) Declined c) Not well d) Not at all e) Declined RACE f) For all responses other than “very well”, ask the next question a) Black or African American b) White SPOKEN ENGLISH LANGUAGE PROFICIENCY c) Asian g) Very well d) American Indian or Alaska Native h) Well e) Native Hawaiian or Other Pacific Islander i) Not well f) Some Other Race j) Not at all g) Declined (pt. declined to identify) k) Declined h) Unknown (pt. unable to identify) l) For all responses other than “very well”, ask the next question
GRANULAR ETHNICITY SPOKEN LANGUAGE PREFERRED FOR HEALTH CARE a) Use the list of standard choices below a) Use the list of standard choices below b) “Other, please specify:__” b) Other, please specify:__” c) “Declined” d) “Unknown” WRITTEN LANGUAGE PREFERRED FOR HEALTH CARE e) Must be able to roll up to “Race” or “Hispanic Ethnicity” INFORMATION a) See the list of standard choices below
2033839.1 46 categories above b) “Braille” c) “Prefer not to rely on written materials” d) “Other, please specify:__”
Additional Functional Specifications for EHR Functional Design:
1) Race and Ethnicity Preferred order of questioning is: “Hispanic Ethnicity”; “Race”; Granular Ethnicity”.
2) Language Need Preferred order of questioning is: “Spoken English Proficiency”; “Preferred Spoken Language”; “Preferred Written Language”
3) Functional Capability of Selecting “Hispanic Ethnicity” and “Race”: After “Hispanic Ethnicity” and “Race” has been selected, the application must make the selection of “Granular Ethnicity” easier by routing the User to those granular ethnicities that roll up to the “Race” or “Hispanic Ethnicity” category which has already been selected by the patient. To facilitate this, categories for “Granular Ethnicity” must be in the same order. (Listed order in this document below).
4) Functional Capability of “Granular Ethnicity” and “Language ” Drop-Down Box/Lists: Application must have the functional capability to change the standard choice categories in the drop-down lists under “Granular Ethnicity” and “Language” is required so that clinics have the flexibility to modify, if necessary. This provides each clinic with the capability to list its own most represented categories at the top. Following the most frequent categories, the rest must flow in alphabetical order. “Granular Ethnicity” Application must provide the functional capability such that more than one category can be selected.
5) Functional Capability of “Race”: Application must have the functional capability to select more than one category in order to represent “bi-racial” or “multi-racial” individuals.
2033839.1 47 6) Free Text/All Open-Ended Choices: Application must provide the functional capability to capture free text for all open- ended choices “Other, please specify: ______” and provide the capability to create new, pre-set categories from the free text responses, to account for demographic changes over time.
7) Child/Parent or Adult/Guardian: Application must provide the functional capability to determine the language need of the parent or adult guardian.
2033839.1 48 Title X Reporting Attachment
THIS IS NOT CURRENTLY AVAILABLE IN THE GENERALLY AVAILABLE CENTRICITY ADVANCE PRODUCT.
Required: Ability to create a “Title X” with the following specifications:
-One record/row for each Title X visit completed -Agency to specify the date range when running the report -Agency must have place to include criteria for record selection in report set-up. For example, agency must be able to specify (and update) a set of CPT codes that would be indicative of a Title X visit. Other specifications for selecting records include:
A documented, face-to-face contact between a client and health provider with the primary purpose of providing family planning services or related preventive health services Females must be between the ages of 10 and 55 and males between the ages of 10 and 60 Payment source and provider type do not matter Family PACT visits are eligible but should not be the only visits that qualify
-File Type: (.txt), Excel (.xls only), or Access is required -Field Layout: preferred order is below, but not required -Field Selection: Agency has ability to delete fields as some fields are optional for reporting -Additional Functionality(Not Required): Title X FPAR Tables that would allow the agency to view their tabulated data (e.g. Table of Unique Users by Age & Gender) -Required Fields For Report: Field # CDS Field Responses Needed for Data Entry Label or Text: Data Entry Comments/Requirements/Instructions Screen 1 Agency Status: Not required Number Type: Alphanumeric Length: 3-5 2 Site Number Status: Required Type: Alphanumeric Length: 3-5
2033839.1 49 3 Patient Status: Required Number Type: Alphanumeric Length: 20 or less Comment: New System Configuration/ ability to substitute previous system's ID number 4 Date of Birth Status: Required Type: Date Length: 5 Gender Male, Female Status: Required Type: Character Length: 1 6 Race White, Black, American Indian/Alaskan What is your race? Status: Required Native, Asian, Native Hawaiian/Other Type: CHAR Pacific Islander, More than One, Length: Decline to State, Not Reported Comment: Subcategories may be used instead of listed responses. But, sub-categories must be clearly mapped to the listed responses. (E.g. provider can use “Middle Eastern” or “Russian”, which will be mapped to “White”.
“Hispanic” should not be included 7 Ethnicity Hispanic, Non-Hispanic, Not Reported What is your ethnicity? Status: Required Comment: “Ethnicity” must be a separate field from “Race”.
Subcategories may be used instead of listed responses if they can be clearly mapped to the listed responses. (E.g. Agency can use Mexican and South American, which will be mapped to “Hispanic”). 8 Family Size Status: Required Type: Numeric Length: 2 9 Contraceptive Status: Required Method Type: CHAR Length:
2033839.1 50 Comment: Available data entry options should be determined by gender Abstinence (M/F) Primary (Most Reliable) Comment: Available data entry options should be determined by gender Sponge (F) Method at End of Visit Comment: Separate "Method” field is required ( cannot be determined by S-Codes) Diaphragm/ Cervical Cap (F) Female Condom (F) Female Sterilization (F) Fertility Awareness (M/F) Hormonal Implant (F) Hormonal Injection-3 Month (F) Hormonal Patch (F) IUD (F) Male Condom (M/F) Oral Contraceptive (F) Other Method (withdrawal) (M/F) Pregnant/Partner Pregnant (M/F) Rely on Female Method (M) Seeking Pregnancy (M/F) Spermicide (alone) (F) Vaginal Ring (F) Vasectomy (M/F) No Method-Other Reason- Infertile/Same Sex Partner (M/F) Method Unknown (M/F) 10 Income Status: Required Type: CHAR
2033839.1 51 Length: 7.2 Values: Weekly, Monthly, Annual
11 Visit Date Status: Required Type: CHAR Length:
12 Medical Status: Required Services/ Visit Type: CHAR Type Length: Comment: Delimiter used within medical services field must be comma delimited and different from file delimiter used between fields Clinical Breast Exam CBE Referral Pap Test Performed Chlamydia Test Performed Gonorrhea Test Performed HIV Test Performed Syphilis Test Performed Pap ASC - LSIL Pap HSIL or Higher Chlamydia Test Positive Gonorrhea Test Positive HIV Result Positive Emergency Contraception Dispensed Chlamydia Source Comment: Required values include: Urine, Cervical, Urethral, Oral, Rectal Note:
2033839.1 52 Chlamydia Treatment Dispensed at Comment: Required Visit Chlamydia Treatment Prescribed at Comment: Required Visit Gonorrhea Treatment Dispensed at Comment: Required Visit Gonorrhea Treatment Prescribed at Comment: Required Visit Visit Type Comment: Required values include: E & M codes used by agency (e.g. 99201-99205, 99211-99215, Z9750- Z9754) 13 Provider Type Physician, NP/CNM/PA, RN/LPN, Status: Required Counselor/CHE Type: CHAR Length: Comment: Ability to generate list of provider names or ID's. Subcategories may be used instead of listed responses if they can be clearly mapped to the listed responses. (E.g. agency may send NPs separately from PA's and CFHC will map both to the same category). 14 Limited Limited English Proficiency, Not Do you need an interpreter? Status: Required English Limited, Not Reported Type: CHAR Proficiency Length: Comments: Cannot use check box for data entry “Not Reported” must be an option “Interpreter Needed”, “ Interpreter Not Needed” may be used “Preferred Language” cannot be used 15 Principle Public, Private, Uninsured, Not Status: Required Insurance Reported Type: CHAR Length: Comments: Sub-categories may replace listed
2033839.1 53 responses if they can be clearly mapped to the listed responses. (E.g. agency may send Family PACT and No Insurance and CFHC will map both to the Uninsured).
16 Homeless Homeless, Not Homeless, Not Reported Do you consider yourself to be Status: Required homeless? Type: CHAR Length: Comments: Cannot use check box for data entry- “Not Reported” must be an option Sub-categories may replace listed responses if can be clearly mapped to the listed responses. (E.g. agency may send Sleeps on Street and Sleeps in Shelter and CFHC will map both to Homeless). “Yes”/ “No” /”Not Reported” is acceptable 17 Substance Substance Abusing, Not Substance Do you abuse drugs or Status: Required Abusing Abusing, Not Reported alcohol? Type: CHAR Length: Comments: Cannot use check box for data entry- “ Not Reported” must be an option “Yes”/ “No” /”Not Reported” is acceptable 18 Migrant Migrant Worker, Not Migrant, Not Are you a migrant worker or a Status: Required Reported dependent of a migrant Type: CHAR worker? Length: Comments: Cannot use check box for data entry- “ Not Reported” must be an option “Yes”/ “No” /”Not Reported” is acceptable 19 Disabled Disabled, Not Disabled, Not Reported Do you have a physical or Status: Required mental disability? Type: CHAR Length: Comments: Cannot use check box for data entry- “ Not Reported” must be an option
2033839.1 54 “Yes”/ “No” /”Not Reported” is acceptable
20 Zip Code Status: Required Status: Required Type: CHAR Length:
2033839.1 55 SCHEDULE 3.3(a)
COMPANY MARKS
RESERVED
2033839.1 56 SCHEDULE 3.3(b)
LICENSEE MARKS
[To be completed by Licensee and attached.]
2033839.1 57 SCHEDULE 4.2
SERVICE LEVEL PROVISIONS
Please refer to separate redline attachment of this Schedule
Service Levels.
During each calendar month during the Term, the Program (Centricity Advance EMR and/or PM) will have an On-Line Availability to Licensee and its respective Users of (a) not less than the higher of ninety-nine point nine percent (99.9%) from 7:00 am. to 7:00 p.m., Pacific Standard Time (PST), Monday through Sunday (“Business Hour Service Level”); and (b) not less than ninety-five percent (95%) during non-business hours (7:01 p.m. to 6:59 am., (PST), Monday through Sunday) (“Non-Business Hour Service Level”), excluding any planned or scheduled maintenance. Company shall provide electronic written notice to Licensee with respect to on any scheduled down-time for the Program, and shall use commercially reasonable efforts to notify Licensee with respect to any non-scheduled down-times for the Program.
As used herein, the term “On-Line Availability” means that the Program will be readily accessible to the Users thereof with a “ping” rate of less than or equal to 100 milliseconds. For purposes hereof, the “ping” rate will refer to the speed of traffic on Company’s local network from the Company’s Internet Service Licensee to Company’s server. Licensee may request that an external audit of On-Line Availability be documented at Licensee expense if Licensee is concerned with performance in this area. Company and Licensee shall mutually agree on a statistically valid sampling methodology prior to conducting the audit. Program downtime will commence when Licensee notifies GE Healthcare of the Program unavailability and will end as soon as the Program becomes available. Licensee will maintain a log documenting downtime including data required to measure the Business Hour Service Level compliance.
Notwithstanding any of the foregoing, however, Company will not be deemed in breach of the Business Hour Service Level or the Non-Business Hour Service Level (collectively, the “Service Levels”) under circumstances where On-Line Availability cannot be achieved due to factors beyond Company’s reasonable control. Examples of items beyond the Company’s control include, but are not limited to outages caused by: (1) any 3rd party commercial system software such as Operating systems, Application servers (BEA, JBOSS) and SQL databases, (2) Loss of connectivity from one specific location or area -- Regional or national network outage, failure of the Local Area Network of the Customer Site, (3) Customer ISP or Customer/Practice connectivity to Customer ISP (4) connectivity failures associated with third party connections for services: clearing houses, SURESCRIPTS, Lab Interfaces.
Service Level Credits.
If Company fails to meet the Business Hour Service Level more than four (4) times during any two (2) month period during the Term, Licensee will be entitled to a “Service Level Credit” against future subscription fees in an amount equal to (a) twenty-five percent of the
2033839.1 58 monthly Subscription Fee (as it may be adjusted in accordance with the Agreement). If Company fails to meet the Non-Business Hour Service Level more than four (4) times during any two (2) month period during the Term, Licensee will be entitled to a Service Level Credit in an amount equal to the quotient of (i) twenty-five percent of the monthly Subscription Fee (as it may be adjusted in accordance with the Agreement).
Mean Time to Restore.
“ Mean Time to Restore” means, for each calendar month, the average time elapsed between the commencement of an Outage and the time that Company fully restores availability of the Program and Hosting Services to all Users. “Outage” means any interruption in availability of the Program or the Hosting Services. For each calendar month, the Mean Time to Restore will be One Hundred Twenty (120) minutes or less.
Program Performance.
The Program shall not exceed five seconds in terms of latency based on direct Licensee access. Program Performance will be measured within the Company’s network from the Company’s Internet Service Licensee to Company’s server and shall exclude Customer connectivity or ISP.
2033839.1 59 SCHEDULE 6.3
MAINTENANCE AND SUPPORT SERVICES
GE Centricity® Advance Support Policy
This Support Policy applies to the GE Centricity Advance Solution (the “Solution”), a subscription based, Software as a Service offering. This policy applies to Centricity Advance Solution customers who purchase EMR Maintenance and PM (“Maintenance”) and/or Centricity Advance Adoption Assurance Phone Support (“Adoption Assurance”).
Maintenance Maintenance consists of the following services: Support. GE Healthcare provides technical support to diagnose and address Solution related issues that (a) materially and adversely interfere with the customer’s use of the Solution; and (b) result from a failure of the Solution to conform in any material respect to the documentation. This includes commercially reasonable efforts to respond, based on the severity of the problem and in accordance with its Service Level Objectives set forth below, to customer’s request for assistance in resolving problems with Centricity Advance. Maintenance does not include training of customer personnel, interfaces, changes to interfaces, additional services or answers to “how to” questions. GE Healthcare agrees to have an appropriate number of trained personnel available to provide maintenance support of the Solution to customer.
Updates. Updates are made available to customers who are current on their maintenance payments. Maintenance releases include enhancement and maintenance releases, product feature and/or functionality modifications, error corrections and modifications, plus related customer documentation. Actual frequency, versioning, and release types may vary. Unless otherwise expressly specified in the quotation, the purchase of hardware or non-GE software (including upgrades to third party software) required for software updates is the responsibility of the customer.
Adoption Assurance Adoption Assurance is a program designed to help customers ensure they utilize the Solution features to their maximum potential. There are two key benefits. Customers subscribing to Adoption Assurance have access to telephone support for issues of any priority and can get quick answers to specific “how to” or functionality questions by telephone, email or eService. Adoption Assurance is designed to assist new personnel and provide help with using software functionality that occurs out of the normal course of business. Customers calling in for support must have completed standard training.
Adoption Assurance is available from 8 am to 5 pm local time Monday through Friday excluding holidays. If your call is not immediately answered, then you may leave a message and you will receive a response within one business day.
GE Healthcare will provide a reasonable amount of Adoption Assurance support in response to inquiries by the customer's system administrator and other customer personnel as long as they have been trained by GE Healthcare to properly use the software.
2033839.1 60 Customer Obligations for Maintenance and Adoption Assurance Customer must provide a primary technical contact to serve as a technical resource to others in the practice and be the primary technical liaison between GE Healthcare and the people in the practice. The technical contact must have an individual email address and telephone number for communicating with GE Healthcare. Maintenance and Adoption Assurance is charged on a per provider basis and must be purchased by all providers in the practice. GE Healthcare provides support services for the then most current major release. Timely installation of current releases keeps Customer systems operating optimally. Failure to upgrade to a major release may result in additional support fees or surcharge and will adversely affect GE Healthcare’s ability to deliver the highest quality support. GE Healthcare requires WebEx access to Customer systems and servers to monitor and/or resolve reported issues via an active Internet connection.
Customer Support Web Access During the term of the agreement, GE Healthcare may provide the customer access to information, through the Solution website, about customer software and/or equipment covered by a GE Healthcare agreement. Customers are granted a limited, nonexclusive, nontransferable right to search, retrieve, display, download, print and use the information solely at the site for internal business use only. User ID and password or other security process defined by GE Healthcare will control access to the web site. The customer is responsible for managing password assignment and confidentiality. Customer must maintain confidentiality of all software provided and content on the website in accordance with terms of our agreement.
GE Healthcare reserves the right to update modify, replace or delete portions of information, functions of the web site, and related materials at any time during the term of the agreement.
GE Healthcare may provide, through this subscription, third party content or links to third party content. GE Healthcare is not responsible for this content. The terms and conditions for use of such content, including privacy policies applicable to such content, are determined solely by the third party, and not by GE Healthcare.
How to contact GE Eservice - Customers may submit any priority issues and track them via the eService website. All customers who are current on their maintenance have access to eService.
Email Support - Customers may submit any priority issues to the email address below. Anyone in the practice may send a service request via email. The response will be sent to the originator of the email.
Telephone Support - Telephone support is required for the reporting of issues identified as Critical or High priority (defined below). The Customer’s Technical Contact must initiate the phone call. Telephone service is not available for reporting any other level priority unless Customer has purchased Adoption Assurance. Customers subscribing to Adoption Assurance have access to telephone support for all priority issues and for follow-up training or “how to” questions.
Hours of Coverage - GE Healthcare offers Maintenance and Adoption Assurance from 7 a.m. to 7 p.m. central time, Monday through Friday (holidays excluded).
2033839.1 61 Support Center Contact Information EService: https://www2.gehealthcare.com/portal/site/usen/eservice Email: [email protected] Telephone: (877) 316-6967
Priority Levels Every service request that is logged with the GE Centricity Support Center is assigned a priority. To help manage technical support issues, customers are asked to identify the priority of the issue according to the following guidelines. Note: Critical and high priority service requests must be reported via telephone.
Priority Levels Critical System/product is entirely unusable, down, or unavailable. High System/product is available, but on a limited or intermittent basis. Mediu System/product is available; the issue reported is a question about intended functionality or m technical specification. Low System/product is available; the issue reported is a request for documentation, training, upgrade, application support, etc.
Response Time Goals Goals are based on the method used to communicate the issue (see Support Center Contact Information table above). GE Healthcare’s intent is to meet/exceed these goals for an Initial Response. Note: Critical and high priority service requests must be submitted via telephone.
Critical High Medium Low Initial Response within … Telephone 30 minutes 60 minutes Within 8 business Next business day hours Web Not applicable Not applicable Within 8 business Next business day hours Voice Mail Not applicable Not applicable Within 8 business Next business day hours Email Not applicable Not applicable Next business day Next 2 business days Status Frequency Every Day until Every Day until Based on reasonable Based on temporary fix temporary fix Customer request reasonable Customer request
Initial Response. Initial Response is defined as contact by either email or phone by a GE Healthcare Centricity Advance customer support professional to advise of the receipt of a Customer support issue and /or gather additional information about a customer support issue and to determine the steps to reproduce the problem.
2033839.1 62 Status Frequency. This is the frequency with which GE Healthcare Customer Support will update our customers on their open support Issues. This frequency may be extended by mutual agreement between the Customer and GE Healthcare Customer Support.
Diagnosis and Lifecycle of an Issue Customers work directly with an assigned GE Centricity support professional until the service request is closed. If a software defect is identified, it will be logged and assigned a tracking number. The GE Centricity support professional will check for an existing solution. If none is currently available or the problem cannot be reproduced, GE Healthcare Customer Support will be responsible for making a good faith effort to identify a temporary solution that may consist of sufficient programming and operating instructions to bring the software into material conformity with the documentation for the applicable GE Centricity Advance software. Some defects do not materially affect the function of the GE Centricity software solution and may not be fixed. Customer may contact the GE Healthcare Centricity Advance customer support organization at any time, reference the tracking number and ask for the current status of the issue.
If the diagnostic process indicates there is an issue with any local hardware, operating systems, network, or other software or products not purchased from GE Healthcare, the customer will be asked to contact the appropriate resources within the customer’s organization or the appropriate third party vendor. In these cases, any additional work on the issue by the GE Centricity support organization will be provided on a time and materials basis at then-current rates.
Software support required to troubleshoot an error that GE Healthcare determines is caused by any misuse or modification of the software, disaster, power failures, network outages, viruses, software not provided by GE Healthcare, or for other causes not attributable to GE Healthcare will be performed at then-current rates plus reasonable travel and living expenses.
Temporary Fix. This is a relief from the experienced behavior. It may take the form of a workaround, a patch or some alternate approach.
Escalation Process Customers may request to escalate a service request whenever they feel the GE Centricity support organization is not providing the level of attention the customer believes is warranted. To escalate a service request, the customer should contact the GE Healthcare Centricity Advance customer support organization and request to be connected to a support manager. The manager will work with the customer to create a plan to resolve the issue. When escalating a service request, the customer should reference the service request number in all communications.
End of Life If GE Healthcare announces to its customers that it will no longer offer Support Services for a product or component (“end of product life”), then with at least twelve (12) months’ prior written notice to Customer, GE Healthcare may, at its option, remove any such item from all GE Healthcare service agreements, with an appropriate adjustment of charges, without otherwise affecting such agreements
System Maintenance There is a scheduled maintenance window between 1:00-3:00am central, 7 days a week. Daily maintenance is rarely performed more than once a week. During this time the application maybe unavailable from five (5)
2033839.1 63 minutes up to the entire two (2) hour period. The system will provide shut down warnings prior to system shut down and an email when the system is available upon completion of the maintenance. If more time is required for an upgrade, the scheduled Sunday morning maintenance window will be extended. The Customer will receive notice of the need for an extended maintenance window at least six days in advance.
There may be instances during normal working hours when the system will be unavailable due to unexpected software, hardware, network, system, or Internet problems. The Solution is configured to minimize the impact of these types of problems. The impact to the customer may range from a delay in response time to the need to re- login to the system after a few minutes.
Scheduled data center server restarts are performed the third weekend of every month and the maintenance window may be extended. Reminder emails are sent to customers the Monday and Friday before the scheduled server restart.
Escalation Process Customers may request to escalate a service request whenever they feel the GE Centricity support organization is not providing the level of attention the customer believes is warranted. To escalate a service request, the customer should contact the GE Healthcare Centricity Advance customer support organization and request to be connected to a support manager. The manager will work with the customer to create a plan to resolve the issue. When escalating a service request, the customer should reference the service request number in all communications.
Database Maintenance Policy Customers may not use third party utilities or programs to read and analyze the content of production databases.
Data Recovery GE Healthcare shall follow its archival procedures for Customer Data input through the Solution. In the event of any loss or corruption of Customer Data, GE Healthcare shall use commercially reasonable efforts to restore the lost or corrupted Customer Data from the latest GE Healthcare backup. Customers are encouraged to create their own backup or copy of their data using the Solution. Customer Data input after the latest GE Healthcare backup and Customer Data deleted due to a Customer Generated Error are not recoverable. GE Healthcare shall not be responsible for any loss, destruction, alteration, unauthorized disclosure or corruption of Customer Data caused by any third party. GE HEALTHCARE’ EFFORTS TO RESTORE LOST OR CORRUPTED CUSTOMER DATA PURSUANT TO THIS SECTION SHALL CONSTITUTE GE HEALTHCARE’ SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY IN THE EVENT OF ANY LOSS OR CORRUPTION OF CUSTOMER DATA.
Customer Errors GE Healthcare will have no obligation to provide Maintenance services for problems in the operation or performance of the Solution to the extent caused by any of the following (each, a “Customer-Generated Error”): Non-GE Healthcare software or hardware products or use of the Solution in conjunction therewith; Modifications to the Solution made by any party without GE Healthcare’ expressed written authorization; Customer’s use of the Solution other than as authorized in this Agreement or as provided in the Documentation, including the use in conjunction with hardware and software that does not meet minimum published specifications. Customer’s use of other than the most current version of the Solution or any error corrections or updates thereto provided by GE Healthcare. If GE Healthcare determines that it is necessary to perform Maintenance Services for
2033839.1 64 a problem in the operation or performance of the Solution that is caused by a Customer- Generated Error, then GE Healthcare will notify customer thereof as soon as GE Healthcare is aware of such Customer-Generated Error and GE Healthcare will have the right to invoice customer at GE Healthcare' then-current published time and materials rates for all such Maintenance Services agreed by the Customer and performed by GE Healthcare.
Voice of Customer GE places customer success above all other objectives and counts on customer feedback to measure the overall level of satisfaction with GE services and methods of delivery. The data is frequently compiled and analyzed to enhance existing programs and identify opportunities for new ones. GE Healthcare considers performance improvement of our support staff paramount to success as an organization, and the results of customer surveys help management focus on areas with the most potential for individual, team and organizational improvements. Feedback may be solicited through surveys and customer group meetings.
Software Support Services Period GE Healthcare will make available support services and GE Centricity software updates for the period for which applicable fees have been paid.
The Centricity Advance EMR Maintenance, Centricity Advance PM Maintenance, the Centricity Advance Portal Maintenance and Centricity Advance Adoption Assurance Phone Support fees are specified in the applicable quotation. GE Healthcare is not obligated to provide these services beyond the end of the period for which applicable fees have been paid and makes no representations or guarantees about the ability for customers to subsequently receive these services or as to the cost of them.
Confidentiality and Proprietary Rights This document is the confidential property of GE and/or its affiliated entities. It is furnished to, and may only be used in accordance with the terms of that agreement. The access and use of this document is restricted to customers and their employees as an aid in use of the Solution. The information in this document is subject to change by GE without notice.
Disclaimers PROVISIONS OF THIS DOCUMENT SHALL SUPERSEDE OR MODIFY ANY CONFLICTING PROVISIONS SET FORTH IN ANY AGREEMENT CURRENTLY IN EFFECT. Ensure you have the most current version at http://www.centricityadvanceportal.com/.
2033839.1 65 EXHIBIT 8.3
COMPANY’S PUBLISHED RATE
Company’s Published Rate for 12 months from contract signing is Two Hundred Dollars ($200) per hour.
Off hours rate for 12 months from contract signing is $360/hour and facility training is $90/hour
.
2033839.1 66 EXHIBIT 9.5
HIPAA Business Associate Addendum
and
GE Healthcare
This Business Associate Addendum (“Addendum”), effective on the last signature date below, is entered into by and between General Electric Company, through its division, GE Healthcare, on behalf of itself and its affiliates (“GE Healthcare”), and with an address at , on behalf of itself and its subsidiaries listed on Schedule A attached hereto (“Covered Entity”) (each a “Party” and collectively the “Parties”).
1. BACKGROUND AND PURPOSE.
The Parties have entered into, and may in the future enter into, one or more agreements, that require GE Healthcare to perform a service, function or activity involving the Use or Disclosure of PHI (as defined in Section 2.2) (the “Underlying Contract(s)”), that is subject to the administrative simplification section of the Health Insurance Portability and Accountability Act of 1996, Pub. Law 104-191 (Aug. 21, 1996), its implementing regulations, the Health Information Technology for Economic and Clinical Health Act (“HITECH”) and its implementing regulations (collectively, “HIPAA”). This Addendum shall supplement and/or amend each of the Underlying Contract(s) only with respect to GE Healthcare’s receipt, Use, Disclosure, and creation of PHI under the Underlying Contract(s) to allow both parties to comply with HIPAA.
2. DEFINITIONS.
2.1 Capitalized terms used but not otherwise defined in this Addendum shall have the same meaning as the meaning ascribed to those terms in HIPAA.
2.2 “ EPHI” means PHI (as defined in Section 2.3) transmitted or maintained in Electronic Media.
2.3 “PHI” shall have the same meaning as the term “Protected Health Information” in 45 CFR 160.103, limited to the information created or received by GE Healthcare from or on behalf of the Covered Entity, including, but not limited to EPHI.
3. OBLIGATIONS OF BUSINESS ASSOCIATE.
2033839.1 67 To assure that the Covered Entity and GE Healthcare may achieve and maintain compliance with the requirements of HIPAA, GE Healthcare agrees to:
3.1 Not Use or Disclose PHI other than as permitted by this Addendum, the Underlying Contract(s) or as Required By Law. GE Healthcare may (a) Use and Disclose PHI to perform its obligations as set forth in the Underlying Contract(s); (b) Use PHI for the proper management and administration of GE Healthcare or to carry out its legal responsibilities; (c) Disclose PHI to a third party for the proper management and administration of GE Healthcare or to carry out its legal responsibilities, if such Disclosure is Required By Law or if GE Healthcare obtains reasonable assurances from the recipient that the recipient will keep the PHI confidential, Use or further Disclose the PHI only as Required By Law or for the purpose for which it was Disclosed to the recipient, and notify GE Healthcare of any instances of which it is aware in which the confidentiality of the PHI has been breached; (d) Use PHI to provide data aggregation services relating to the health care operations of Covered Entity; (e) Use or Disclose PHI to report violations of the law to law enforcement, subject to 45 CFR § 164.512(f); and (f) Use PHI to create de-identified information consistent with the standards set forth at 45 CFR § 164.514;
3.2 Use reasonable and appropriate safeguards to prevent Use or Disclosure of PHI, except as permitted or required by this Addendum;
3.3 Use reasonable and appropriate administrative, physical and technical safeguards to protect the Confidentiality, Integrity and Availability of EPHI;
3.4 If GE Healthcare becomes aware of a Use or Disclosure of PHI in violation of this Addendum by GE Healthcare or by a third party to which GE Healthcare Disclosed PHI, report any such Use or Disclosure to the Covered Entity without unreasonable delay;
3.5 Report any Security Incident involving unsecured PHI of which it becomes aware in the following manner: (a) any actual, successful Security Incident will be reported to the Covered Entity in writing without unreasonable delay and if practicable within five (5) business days, and (b) any attempted, unsuccessful Security Incident of which GE Healthcare becomes aware will be reported to the Covered Entity orally or in writing on a reasonable basis, upon request by the Covered Entity. If the HIPAA security regulations are amended to remove the requirement to report unsuccessful attempts at unauthorized access, the requirement hereunder to report such unsuccessful attempts will no longer apply as of the effective date of the amendment;
3.6 Following the determination of the occurrence of a Breach of Unsecured PHI, notify the Covered Entity of such Breach in accordance with 45 CFR § 164.410 without unreasonable delay, and exercise commercially reasonable efforts to provide such notice to Covered Entity within five (5) business days, but in no case later than sixty (60) days after discovery of the Breach;
3.7 Require all of its subcontractors and agents that receive, Use or have access to PHI to agree, in writing, to adhere to the same restrictions and conditions on the Use or Disclosure of PHI that apply to the GE Healthcare pursuant to this Addendum;
2033839.1 68 3.8 Make internal practices, books, and records relating to the Use and Disclosure of PHI received from, or created or received by GE Healthcare on behalf of the Covered Entity available to the Secretary, in a time and manner designated by the Secretary, for purposes of the Secretary determining the Covered Entity's compliance with HIPAA;
3.9 Provide documentation regarding Disclosures that would have to be included in an accounting of Disclosures to an Individual under 45 CFR 164.528 as amended by HITECH, within a reasonable amount of time of receipt of a request from the Covered Entity;
3.10 If, and to the extent that GE Healthcare maintains a Designated Record Set of Covered Entity, within fifteen (15) business days of receipt of a written request by the Covered Entity for access to PHI about an Individual contained in the Designated Record Set, make available to the Covered Entity such PHI for so long as GE Healthcare maintains such information in the Designated Record Set. If GE Healthcare receives a request for access to PHI directly from an Individual, GE Healthcare shall direct the Individual to contact the Covered Entity directly;
3.11 If, and to the extent that GE Healthcare maintains a Designated Record Set of Covered Entity, within fifteen (15) business days of receipt of a written request from the Covered Entity for the amendment of an Individual's PHI contained in the Designated Record Set, provide the Covered Entity such information to the Covered Entity for amendment and incorporate any such amendments in the PHI (for so long as GE Healthcare maintains such information in the Designated Record Set) as required by 45 C.F.R. 164.526. If GE Healthcare receives a request for amendment to PHI directly from an Individual, GE Healthcare shall direct the Individual to contact the Covered Entity directly; and
3.12 Mitigate, to the extent practicable, any harmful effects (known to GE Healthcare) from any Use or Disclosure of PHI by GE Healthcare not permitted by this Addendum.
4. OBLIGATIONS OF COVERED ENTITY.
4.1 Covered Entity agrees to timely notify GE Healthcare, in writing, of any arrangements between the Covered Entity and the Individual that is the subject of PHI that may impact in any manner the Use and/or Disclosure of that PHI by GE Healthcare under this Addendum.
4.2 Covered Entity shall not request GE Healthcare to use or disclose PHI in any manner that would not be permissible under HIPAA if done directly by Covered Entity.
4.3 Covered Entity represents that, to the extent Covered Entity provides PHI to GE Healthcare, such PHI is the minimum necessary PHI for the accomplishment of GE Healthcare’s purpose.
4.4 Covered Entity represents that, to the extent Covered Entity provides PHI to GE Healthcare, Covered Entity has obtained the consents, authorizations and/or other forms of legal permission required under HIPAA and other applicable law.
2033839.1 69 5. TERMINATION BY COVERED ENTITY.
5.1 Should the Covered Entity become aware of a pattern of activity or practice that constitutes a material breach of a material term of this Addendum by GE Healthcare, the Covered Entity shall provide GE Healthcare with written notice of such breach in sufficient detail to enable GE Healthcare to understand the specific nature of the breach. Covered Entity shall be entitled to terminate the Underlying Contract associated with such breach if, after the Covered Entity provides the notice to GE Healthcare, GE Healthcare fails to cure the breach within a reasonable time period of not less than thirty (30) days specified by the Covered Entity in such notice; provided, however, that such time period specified by the Covered Entity shall be based on the nature of the breach involved.
5.2 At the termination of the Underlying Contract(s), GE Healthcare shall return to the Covered Entity or destroy, if feasible, any and all PHI in its possession and retain no copies. If GE Healthcare reasonably determines that such return or destruction is not feasible, GE Healthcare shall so notify the Covered Entity and extend the protections of this Addendum to the information and limit further Uses and Disclosures to those purposes that make the return or destruction of the information infeasible.
6. MISCELLANEOUS.
6.1 Interpretation. In the event of a conflict between this Addendum and an Underlying Contract, this Addendum shall prevail to the extent necessary to allow the Covered Entity and GE Healthcare to comply with HIPAA. Except as supplemented and/or amended by this Addendum, the terms of an Underlying Contract shall continue unchanged and shall apply with full force and effect to govern the matters addressed in the Underlying Contract.
6.2 No Third Party Beneficiaries. Nothing in this Addendum shall confer upon any person other than the Parties and their respective successors or assigns, any rights, remedies, obligations, or liabilities whatsoever.
6.3 Amendment. To the extent that any relevant provision of HIPAA is materially amended in a manner that changes the obligations of Business Associates or Covered Entities, the Parties agree to negotiate in good faith appropriate amendment(s) to this Addendum to give effect to these revised obligations. In addition, the parties acknowledge and agree that HITECH imposes new requirements with respect to privacy, security and breach notification and contemplates that such requirements shall be implemented by regulations to be adopted by HHS. The HITECH provisions applicable to business associates will be collectively referred to as the “HITECH BA Provisions”. The provisions of HITECH and the HITECH BA Provisions are hereby incorporated by reference into this Addendum as if set forth in this Addendum in their entirety. Notwithstanding anything to the contrary, the HITECH BA Provisions will be effective: (a) with respect to any security breach notification provision, September 23, 2009; and (b) with respect to the other HITECH BA Provisions, February 17, 2010 or such subsequent date as may be specified in HITECH or applicable final regulations.
IN WITNESS WHEREOF, each of the undersigned has caused this Addendum to be duly
2033839.1 70 executed in its name and on its behalf.
Covered Entity General Electric Company by and through its division GE Healthcare
By: By:
Print Name: Print Name: Ericka S. Watson
Print Title: Print Title: Privacy and Data Protection Counsel
Date: Date:
2033839.1 71 Schedule A Covered Entity
Covered Entity:
List of Covered Entity’s Subsidiaries:
2033839.1 72 SCHEDULE 11.9
MEANINGFUL USE: STAGE 1 MEANINGFUL USE CRITERIA
Company represents and warrants that the Program has been certified by an ONC-ATCB under the temporary certification program for health information technology administered by the National Coordinator, or has otherwise been tested and certified in accordance with the certification program established by the National Coordinator as meeting the Stage 1 Meaningful Use Criteria set forth below (check all that apply):
Complete EHR. The Program has been certified as a “Complete EHR,” as such term is defined at 45 C.F.R. § 170.102. By checking this box, Company represents and warrants that the Program has been certified to meet, at a minimum, all applicable certification criteria adopted by the Secretary. If Company checks this box, do not check any remaining boxes below.
2033839.1 73