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TK Software/FIRE/1,800/HIPAA and EDI ProcessingTK, Software 'Fire Department - 2015 Appropriation # 102- 632,02; P.O. 24621 Contract Not To Exceed $1;$00.00 AGREEMENT FOR PURCHASE OF GOODS AND SERVICES THIS AGREEMENT FOR PURCHASE OF GOODS AND SERVICES ( "Agreement ") is hereby entered into by and between the City of Carmel, Indiana, acting by and through its Board of Public Works and Safety ( "City "), and TK Software, an entity duly authorized to do business in the State of Indiana ( "Vendor "). TERMS AND CONDITIONS 1. ACKNOWLEDGMENT, ACCEPTANCE: Vendor acknowledges that it has read and understands this Agreement, and agrees that its execution of same constitutes its acceptance of all of the Agreement's terms and conditions. 2. PERFORMANCE: City agrees to purchase the goods and /or services (the 'Goods and Services ") from Vendor using City budget appropriation number 102- 632.02 funds. Vendor agrees to provide the Goods and Services in accordance with Exhibit A. 3. PRICE AND PAYMENT TERMS: 3.1 Vendor estimates that the total price for the Goods and Services to be provided to City hereunder shall be no more than One Thousand Eight Hundred Dollars ($1,800.00) (the „ Estimate ). Vendor shall submit an invoice to City no more than once every thirty (30) days detailing the Goods and Services provided to City within such time period. City shall pay Vendor for such Goods and Services within thirty -five (35) days after the date of City's receipt of Vendor's invoice detailing same, so long as and to the extent such Goods and Services are not disputed, are in conformance with the specifications set forth in Exhibit A, which is incorporated herein by reference, are submitted on an invoice that contains the information contained on attached Exhibit B, and Vendor has otherwise performed and satisfied all the terms and conditions of this Agreement. In no case shall Vendor be required to provide services if the price for those services exceeds the Estimate. 3.2 Vendor agrees not to provide any Goods and Services to City that would cause the total cost of the Goods and Services provided by Vendor to City hereunder to exceed the Estimate, unless City has previously agreed, in writing, to pay an amount in excess thereof. 4. WARRANTY - Deleted by agreement of the parties. 5. TIME AND PERFORMANCE: This Agreement shall become effective as of the last date on which a party hereto executes same ( "Effective Date "), and both parties shall thereafter perform their obligations hereunder in a timely manner. Time is of the essence of this Agreement. 6. DISCLOSURE AND WARNINGS — Deleted by agreement of the parties. 7. LIENS: Vendor shall not cause or permit the filing of any lien on any of City's property. In the event any such lien is C:WwNlurecodderlt+UPPQots' Rat emoontWiuCmsV4tCaeteCwum .OwloolATC30PBMATF SaTO= -Goods Slsitts I- 13 -I5.dn TK Software 'Fire Department - 2015 Appropriation #102-632.02; P.O. 24621 Contract Not To Exceed S1.800.00 filed and Vendor fails to remove such lien within ten (10) days after the filing thereof, by payment or bonding, City shall have the right to pay such lien or obtain such bond, all at Vendor's sole cost and expense. 8. DEFAULT: In the event Vendor: (a) repudiates, breaches or defaults under any of the terms or conditions of this Agreement, including Vendor's warranties; (b) fails to provide the Goods and Services as specified herein; (c) fails to make progress so as to endanger timely and proper provision of the Goods and Services and does not correct such failure or breach within five (5) business days (or such shorter period of time as is commercially reasonable under the circumstances) after receipt of notice from City specifying such failure or breach; or (d) becomes insolvent, is placed into receivership, makes a general assignment for the benefit of creditors or dissolves, each such event constituting an event of default hereunder, City shall have the right to (1) terminate all or any parts of this Agreement, without liability to Vendor; and (2) exercise all other rights and remedies available to City at law and /or in equity. 9. INSURANCE: Vendor shall procure and maintain in full force and effect during the term of this Agreement, with an insurer licensed to do business in the State of Indiana, such insurance as is necessary for the protection of City and Vendor from all claims for damages under any workers' compensation, occupational disease and/or unemployment compensation act; for bodily injuries including, but not limited to, personal injury, sickness, disease or death of or to any of Vendor's agents, officers, employees, contractors and subcontractors; and, for any injury to or destruction of tangible personal property, including, but not limited to, any loss of use resulting therefrom. The coverage amounts shall be no less than those amounts set forth in attached Exhibit C. Vendor shall cause its insurers to name City as an additional insured on all such insurance policies, shall promptly provide City, upon request, with copies of all such policies, and shall provide that such insurance policies shall not be canceled without thirty (30) days prior notice to City. 10. GOVERNMENT COMPLIANCE: Vendor agrees to comply with all federal, state and local laws, executive orders, rules, regulations and codes which may be applicable to Vendor's performance of its obligations under this Agreement, and all relevant provisions thereof are incorporated herein by this reference. Vendor agrees to indemnify and hold harmless City from any loss, damage and /or liability resulting from any such violation of such laws, orders, rules, regulations and codes. This indemnification obligation shall survive the termination of this Agreement. 11. NONDISCRIMINATION: Vendor represents and warrants that it and all of its officers, employees, agents, contractors and subcontractors shall comply with all laws of the United States, the State of Indiana and City prohibiting discrimination against any employee, applicant for employment or other person in the provision of any Goods and Services provided by this Agreement with respect to their hire, tenure, terms, conditions and privileges of employment and any other matter related to their employment or subcontracting, because of race, religion, color, sex, handicap, national origin, ancestry, age, disabled veteran status and /or Vietnam era veteran status. 12. E- VERIFY Pursuant to I.C. § 22 -5 -1.7 et seq., as the same may be amended from time to time, and as is incorporated herein by this reference (the "Indiana E- Verify Law "), Vendor is required to enroll in and verify the work eligibility status of its newly - hired employees using the E- Verify program, and to execute the Affidavit attached herein as Exhibit D, affirming that it is enrolled and participating in the E- verify program and does CSIAns`. laresudocrfcMmr fhnll.ouNlicrosofION auto ss UNclesehr.Cmnem .OralwltTC'391'©^19VTf{ Solloire -Goods Ss/ias 1.11- I:.doo TK Software Fire Department - 2015 Appropriation #102-632.02; P.O. 24621 Contract Not To Exceed S1,300.00 not knowingly employ unauthorized aliens. In support of the Affidavit, Vendor shall provide the City with documentation indicating that it has enrolled and is participating in the E- Verify program. Should Vendor subcontract for the performance of any work under and pursuant to this Agreement, it shall fully comply with the Indiana E- Verify Law as regards each such subcontractor. Should the Vendor or any subcontractor violate the Indiana E- Verify law, the City may require a cure of such violation and thereafter, if no timely cure is performed, terminate this Agreement in accordance with either the provisions hereof or those set forth in the Indiana E- Verify Law. The requirements of this paragraph shall not apply should the E- Verify program cease to exist. 13. NO IMPLIED WAIVER: The failure of either party to require performance by the other of any provision of this Agreement shall not affect the right of such party to require such performance at any time thereafter, nor shall the waiver by any party of a breach of any provision of this Agreement constitute a waiver of any succeeding breach of the same or any other provision hereof. 14. NON- ASSIGNMENT: Vendor shall not assign or pledge this Agreement, whether as collateral for a loan or otherwise, and shall not delegate its obligations under this Agreement without City's prior written consent. 15. RELATIONSHIP OF PARTIES: The relationship of the parties hereto shall be as provided for in this Agreement, and neither Vendor nor any of its officers, employees, contractors, subcontractors and agents are employees of City. The contract price .set forth herein shall be the full and maximum compensation and monies required of City to be paid to Vendor under or pursuant to this Agreement. 16. GOVERNING LAW; LAWSUITS: This Agreement is to be construed in accordance with and governed by the laws of the State of Indiana, except for its conflict of laws provisions. The parties agree that, in the event a lawsuit is filed hereunder, they waive their right to a jury trial, agree to file any such lawsuit in an appropriate court in Hamilton County, Indiana only, and agree that such court is the appropriate venue for and has jurisdiction over same. 17. SEVERABILITY: If any term of this Agreement is invalid or unenforceable under any statute, regulation, ordinance, executive order or other rule of law, such term shall be deemed reformed or deleted, but only to the extent necessary to comply with same, and the remaining provisions of this Agreement shall remain in full force and effect. 18. NOTICE: Any notice provided for in this Agreement will be sufficient if it is in writing and is delivered by postage prepaid U.S. certified mail, return receipt requested, to the party to be notified at the address specified herein: if to City: City of Carmel AND Douglas C. Haney, City Attorney One Civic Square Department of Law Carmel, Indiana 46032 One Civic Square Carmel, Indiana 46032 Gwsasitkurrndau'! cr' IAppDmall. aanNikmwn1IVIndowed NhatcheCaa:an Owkvak\V'r.ntiPBP701: 5e4uare -Goods Si eoces 1.I3.I de TK Software Fire Department - 2015 Appropriation 11102-632.02; P.O.24621 Contract Not To Exceed 51,800.00 If to Vendor: TK Software 2113 Brewster Road Indianapolis, IN 46260 Telephone: 317- 228 -0857 ATTENTION: Tony Kurzendoerfer, President Notwithstanding the above, notice of termination under paragraph 19 hereinbelow shall be effective if given orally, as long as written notice is then provided as set forth hereinabove within five (5) business days from the date of such oral notice. 19. TERMINATION: 19.1 City or Vendor may terminate this Agreement at any time upon thirty (30) days prior notice to the other party. In the event of such termination, Vendor shall be entitled to receive only payment for the undisputed invoice amount of conforming Goods and Services delivered as of the date of termination, except that such payment amount shall not exceed the Estimate amount in effect at the time of termination, unless the parties have previously agreed in writing to a greater amount. 19.2 The City may terminate this Agreement pursuant to Paragraph 11 hereof, as appropriate. 20. REPRESENTATIONS AND WARRANTIES The parties represent and warrant that they are authorized to enter into this Agreement and that the persons executing this Agreement have the authority to bind the party which they represent. 21. ADDITIONAL GOODS AND SERVICES Vendor understands and agrees that City may, from time to time, request Vendor to provide additional goods and services to City. When City desires additional goods and services from Vendor, the City shall notify Vendor of such additional goods and services desired, as well as the time frame in which same are to be provided. Only after City has approved Vendor's time and cost estimate for the provision of such additional goods and services, has encumbered sufficient monies to pay for same, and has authorized Vendor, in writing, to provide such additional goods and services, shall such goods and services be provided by Vendor to City. A copy of the City's authorization documents for the purchase of additional goods and services shall be numbered and attached hereto in the order in which they are approved by City. 22. TERM Unless otherwise terminated in accordance with the termination provisions set forth in Paragraph 19 hereinabove, this Agreement shall be in effect from the Effective Date through December 31, 2015 and shall, on the first day of each January thereafter, automatically renew for a period of one (1) calendar year, unless otherwise agreed by the parties hereto. 23. HEADINGS All heading and sections of this Agreement are inserted for convenience only and do not form a part of this Agreement nor limit, expand or otherwise alter the meaning of any provision hereof. 24. BINDING EFFECT The parties, and their respective officers, officials, agents, partners, successors, assigns and legal representatives, are bound to the other with respect to all of the covenants, terms, warranties and obligations C.AU Uurir donrctAppDat is,,iueaowilkWindo.,uNnrxerc .ottl<«lsrc.UIPEIP m: swb.re•cool. s . 4 1•0•1.1.aoc TK Software. Tire Department - 2015 Appropriation #.102- 632.02; P.O. 24621 Contract Not To Exceed S 1,800.00 set forth in Agreement. 25. NO THIRD PARTY BENEFICIARIES This Agreement gives no rights or benefits to anyone other than City and Vendor. 26. IRAN CERTIFICATION: Pursuant to I.C. § 5 -22 -16.5, the Vendor shall certify that, in signing this document, it does not engage in investment activities within the Country of Iran. 27. ADVICE OF COUNSEL: The parties warrant that they have read this Agreement and understand it, have had the opportunity to obtain legal advice and assistance of counsel throughout the negotiation of this Agreement, and enter into same freely, voluntarily, and without any duress, undue influence or coercion. 28. ENTIRE AGREEMENT: This Agreement, together with any exhibits attached hereto or referenced herein, constitutes the entire agreement between Vendor and City with respect to the subject matter hereof, and supersedes all prior oral or written representations and agreements regarding same. Notwithstanding any other term or condition set forth herein, but subject to paragraph 16 hereof, to the extent any term or condition contained in any exhibit attached to this Agreement or in any document referenced herein conflicts with any term or condition contained in this Agreement, the term or condition contained in this Agreement shall govern and prevail, except that the provisions in Sections 6, 16, and 26 of Exhibit A shall govern and prevail over any term or condition contained in this agreement. This Agreement may only be modified by written amendment executed by both parties hereto, or their successors in interest. csuwYarkuitzadoGtrnnppQriiu. KewMi no, onlwtndoaTV4 ,c.116CoNem.Otaloo.5r[wau.'4Ln: Sam.9R -c«#5 1- 11-1,5,aa T1{ Software Fire Department - 2015 Appropriation #102-632,02; P.O. 24621 Contract Not To Exceed 51,800.00 IN WITNESS WHEREOF, the parties hereto have made and executed this Agreement as follows: CITY OF CARMEL, INDIANA TK SOFTWARE by and through its Board of Public Works and Safety By: By: A thoil ,Signature mes Brainard, Presiding Officer Date; goeAat- Mary Ann Burke, Member Date: Lori S. Wat • Member Date: ATTEST: Dina Cordray, IAMC, C - Treasurer Date: d 'Printe7 (11,e, Title FID/TIN: S ''8 '5 g Y 3 Last Four of SSN if Sole Proprietor: Date: ,//,?/�? /S c:wa „ ndoerfettAppDaulamliicrosaMitklon8tiNriCacheCmItall s oloaer7''.u,PHSATI: sanwme room sb.;c. i -i - is.dx TKSO.FTWARE STANDARD CONTRACT AS APPLICAT.iOiN SERVICE PROVIDER FOR HIPAA ED 'PROCESSING AND WEB PORTAL This Agreement is made between TKSoftware, inc. ("TKSoftware ") and City of Cannel ( "Client ") as of February I, 2015 (the "Effective Date "). it is agreed as follows: I. Definitions In this Agreement, unless there is something. in the subject matter or context inconsistent therewith: Confidential Information. "Confidential Information" shall mean all materials, data, and information; in whatever form received or created, confidential, secret or proprietary information of either TKSoftware or Client, including. technical, financial, and business related information that has been disclosed or delivered to a party to this Agreement and which, if delivered on or after the date of this Agreement, is stamped or marked or otherwise identified in writing as being confidential at the time of disclosure or information disclosed orally if at the time of the disclosure the disclosing party states that the information is confidential information and provides a written summary of such confidential information to the receiving party within ten (10) days of making the disclosure. Medical records disclosed by Client shall -be deemed Confidential information whether or not so identified or marked. Notwithstanding the foregoing, Confidential Information shall not include information which is: (i) already known by the recipient party without an obligation of confidentiality, (ii) publicly known or becomes publicly known through no unauthorized act of the recipient party, (iii) rightfully received from .a third party, (iv) independently developed by the recipient party without use of the information of the disclosing party, or (v) approved by the disclosing party for disclosure without restriction on confidentiality. Proprietary Data. The "Proprietary Data" is the file structure and design of the Software and any technical documentation supplied to Client. Software. The HIPAA Advantage Software ( "Software ") is described in 'Section 3 "Providing Service". System. The "System" is the Software, the data warehouse described in Section 3 and the third party hardware on which the Software is .hosted. Administrative - Portion. The Administrative Portion of the web portal provides the user (Administrator) comprehensive web portal access and control over web portal security including the ability to create new users as well as update the access properties of all existing users. Participating. Payer. A Participating Payer is defined as a payer listed on the i'KSoftvarc Payer Connection list as currently exchanging HIPAA compliant EDI transactions either through a direct or indirect connection to TKSoftware. Billing Service: A company providing billing services for a Medical Service Provider. Medical Service Provider: A medical practice or service providing healthcare related services. HIPAA Code -sets Electronic Claire Transaction Processing (Transaction Types): 837 is.a Submitted Claim 835 is an EOB —Claim Payment Information 270 is an'.Eligibility Request 271. is an 'Eligibility Response 276 is a Claim Status .Request 277 is a Claim Status Response 2. Compensation and Term Client hereby retains.TKSoftware and TKSoftware hereby agrees to perform the following services: Electronic Claim Transaction Processing. This Agreement shall commence on the Effective Date, and shall remain in effect for one (1) year. Thereafter this agreement shall automatically renew for successive one (I) year terns unless one party gives the other party notice in writing of non- renewal at least ninety (90) days prior to the renewal date. After the initial term TKSoftware may increase the billing rate once in any twelve (12) month period with ninety (90) days written notice. Once TKSoftware notifies Client of an increase Client shall have thirty (30) days to accept or reject the increase. if the increase is rejected by the Client TKSoftware may terminate this agreement with ninety (90) days written notice or the contract continues under the current terms. Beginning with the effective date TKSoftware will begin implementation and data integration testing to include the establishment of any new electronic connections and the exchange of electronic transactions for testing and verification purposes. TKSoftware will process and submit Client's transactions directly to the appropriate payer via electronic transmission provided such payer or designated Page 1 of 7 EXHIBIT intermediary is compelled under H1PAA law or voluntarily agrees to accept Client's electronic transactions when submitted by TKSoftwa re. TKSoftware will Invoice on the first of each month beginning with effective date and Client shall pay the agreed Minimum monthly fee and per claim fee to TKSoftware no later than the fifteenth day of each month commencing with the Effective Date. A late payment fee equal to eighteen percent (l8%) per annum on all payments overdue by fifteen (15) days will be due and payable by Client, said fee to -be computed daily from the date payment was due until payment is received by TKSoftware. Client will pay all collection fees _if a collection agency is utilized to collect any un -paid amounts owed. All amounts owed by Client shall be payable Lk':ith reasonable attorney fees and collection fees in tiie event legal or court proceedings are initiated for the collections and such proceedings are successful, hi addition to the consideration provided herein, Client agrees to pay amounts equal to any sales, use, excise or other taxes that may be imposed as a result of this Agreement pursuant to applicable law, but Client shall not be obligated to pay any taxes based on TKSoftware's net income. If Client claims an exemption from any such taxes, Client shall provide to TKSoftware an appropriate exemption certificate. 3. Providing Service TKSoftware will make a commercially reasonable effort to provide the I-lIPAA EDI services listed in Appendix A. TKSoftware makes no guarantee regarding the H1PAA EDI compliance or cooperation of payers or PPOs regarding these services. It is the responsibility of the Client or their representative, if so desired, to take appropriate action to compel iIIPAA EDI compliance. Also changes in the current I-(IPAA EDI regulations that do not adversely affect the services provided are not considered grounds for termination. Changes in the current HIPAA EDI regulations that adversely affect TKSoftware's ability to provide the services listed below tvi1l allow either party to terminate the contract in accordance with the termination provisions set forth in paragraph 21. TKSoftware will make a commercially reasonable effort to exchange EDI transactions with Trading Partners in a timely fashion. The inability for a Trading Partner to exchange EDl resulting from failures by the *trading Partner IS 1101 considered grounds for termination. TKSoftware may also contract with third party vendors to provide, access to certain EDl transactions. The inability for Client to access these transactions because of failures by the third party is not considered grounds for termination. implementation & Training TKSoftware or its agent shall provide ten (10) hours of training on the use of the system via phone, Internet, or direct entail. Client Support 10 hours for general technical support regarding the use of the system per month will be provided via phone and direct email at no additional charge. This support will be available 9:00 and through 5 :00 pm Eastern Standard Time (EST) Monday through Friday excluding weekends and holidays. Additional support beyond 10 hours, or support relating to issues other than the TKSoftware System, are, considered extraordinary and will be provided at an hourly rate. TKSoftware will provide Client with a ninety (90) day grace period at the beginning of the term where support hours are not tracked. Additional Services TKSoftware can provide additional services billed at an hourly basis. All additional services as well as the cost to the Client will be detailed in a statement of work (SOW) to be developed at the time of the request. 4. Testing As connections are established with new trading partners, TKSoftware and trading partner will enter into a testing phase. Once testing phase is complete for each transaction type; TKSoftware and trading partner will begin to exchange production data for transaction types that have successfully passed testing and been approved. 5. Client Responsibility • Upload and download files to & from FTP Site@ TKSoftware or through secure web portal provided by TKSoftware. • Client will provide their own internee access including the entire office infrastructure (hardware and software) required to create, send, receive, and process the electronic files covered in this agreement. • Verify testing results for accuracy, during implementation & when new payers are added. • TKSoftware will provide.secure Internet Portal access to allow Trading Partner to view errors that occur during processing by TKSoftware. Claims that are identified in the Internet Portal Error Log have been rejected and must be corrected by Trading Partner and re- submitted to TKSoftware. • Client will he responsible for completing the Enrollment process with .ill pilyers requiring healthetrre provider enrollment or registration. TKSoftware will provide assistance during the enrollment process. • Client is responsible for payer contact and interaction to resoh'e claim related questions. Page 2 of 7 EXHIBIT 6. Third Party Hosting Client acknowledges that the site is hosted at a third party. The agreement between the third party and TKSoftware provides for the following minimum features through the service of the third party. TKSoftware shall have no liability to Client for any loss or damages resulting from failures by the third party or the equipment at the site. These include: Power backup Surveillance and security 24 -hour 7 day a : week •Internet service (99% uptime) tf during this Agreement, TKSoftware decides to change hosts, the above features will be pre- requisites for any new hosting provider. 7. Ownership of System and Data Client acknowledges that all program files are the sole ownership of TKSoftware. TKSoftware reserves the right to copy database files for maintenance and backup purposes only. These files may be taken off -site to a second secure location to be used for disaster recovery purposes only. 8: Use of System TKSoftware grants Client unlimited use of the Administrative Portion of the System by an unlimited number of Client employees. Client is not authorized to give other organizations access_to the Administrative Portion of the system or to anyone outside the Client organization. TKSoftware reserves the right to cancel service if this is not observed. Disclosure of PHI Regarding the use of the Self - Administered Internet Web Portal Client shall be responsible for authorizing access through the Web Portal, as Client is with all of the Self-Administered features of the system; in such as manner so as to assure that each person (a "User ") who is permitted to access protected health information and other confidential or private information (collectively "PHI ") through the Web Portal accesses only PHI which may lawfully be disclosed to that person and Client agrees to defend, indemnify and hold harmless TKSoftware from, and against, any claim, action or proceeding by any person asserting that PHI was unlawfully or improperly disclosed to a User and to reimburse TKSoftware for any claims, losses, liabilities, damages, deficiencies, costs.and expenses, including reasonable attorneys' fees and expenses of investigation and defense su;1fered by TKSoftware as a result of access by a User to P111 which, as a matter of law, regulation or contract, should not have been disclosed to the User. 9. Confidentiality A separate, mutually agreeable "Business Associate" agreement will be signed before Client sends data to TKSoftware, which will cover confidentiality, especially as it relates to 1-IIPAA privacy and protection issues. TKSoftware and Client agree that it will not at any time during or after the term of this Agreement disclose any Confidential Information to any person. 10. Non- Disclosure TKSoftware and Client agree not to disclose any of the terms of this Agreement without the prior written consent of TKSoftware, which Will not be unreasonably withheld. Client shall not disclose or make available the Proprietary Data to any third party (vi:. someone other than TKSoftware or Client or an employee of TKSoftware or Client) without the prior written consent of TKSoftware. Client shall restrict access to the Proprietary Data and TKSoftware's Confidential Information to only those employees requiring such access for successful operation of the services related to this Agreement, the Software and those employees agreeing to maintain the Proprietary Data in confidence. 11. Proprietary Protection. Client recognizes that the Proprietary Data ofTKSoftware is confidential, proprietary and trade secret and is protected by law. 12. Independent Contractors. The relationship of the parties under this Agreement is solely that of independent contractors. Nothing in this Agreement shall constitute, be construed to be or create a partnership, joint venture. or employment relationship between the parties. Pane 3 of 7 EXHIBIT 13. Permits and Licenses TKSoftware shall, at its expense, procure and maintain all licenses and permits both current and future, which are required to lawfully render the services and agree to comply with all the statutes, ordinances, and regulations which are applicable to the conduct of its services hereunder. 14. No Warranties• TKSOFTWARE MAKES NO REPRESENTATIONS OR WARRANTIES, OTHER THAN AS EXPRESSLY SET FORTH IN THIS AGREEMENT, EXPRESSED OR IMPLIED, INCLUDiNG WITHOUT 1INIITATION, THE WARRANTIES Of MERCHANTABI.LiTY AND FITNESS FOR A PARTICULAR PURPOSE. 15. Performance ALTHOUGH TKSOFTWARE WILL TAKE COMMERCIALY REASONABLE STEPS TO PROVIDE ERROR -FREE AND CONTINUOUS SERVICE, TKSOFTWARE .DOiES NOT REPRESENT; WARRANT OR GUARANTEE -[-HAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR - FREE. 16. Limitation of Liability TKSoftware's total liability, if any, with respect to the subject matter of this Agreement (including, but not limited to, liability arising out of contract, tort, strict: liability, breach of warranty or otherwise), is limited to the monthly service fees paid by Customer under this Agreement in the one (1) month prior to the act or injury that gave rise to the liability. TKSOFTWARE WILL NOT BE LIABLE IN ANY EVENT FOR LOSS OR INACCURACY OF DATA LOSS OF PROFITS OR REVENUES, OR iNDI:R.ECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL 'DAMAGES (INCLUDING, WH I-IOUT LIMITATION, 'i-IIL COST OF ANY SUBSTITUTE SERVICE), Wt-IL1HER OR NOT FORESEEABLE AND.EVEN IF TKSOFTWARE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS SEC':fiON SHALL APPLY TO ANY ACTION HEREUNDER. 17. Infringement. This Section applies only to the portion of the Software independently developed by TKSoftware and does not apply to software, modules or tools developed by others (such as Microsoft BizTalk Accelerator for HIPAA) and utilized in providing the services hereunder. At Client's written. request, TKSoftware will defend, at its own expense, any action brought against Client to the extent that the action is based upon a claim that the portion of the Software independently developed by TKSoftware and used to provide the services under the Agreement infringes any intellectual property rights of a third party ("Infringement"). TKSoftware will pay all costs, damages and reasonable attorneys' fees finally awarded against Client in such an Infringement action provided that Client promptly notifies the President of TKSoftware in writing of the claim. TKSoftware shall have the right to defend the claim on behalf of both parties and Client shall make available to TKSoftwarc all relevant records, papers or information and shall cooperate in defense of the claim as reasonably requested by TKSoftwwa re. Client shall have the right to participate in the defense of the claim, under the control of TKSoftware, at Client's expense. The foregoing obligation of TKSoftware to pay all costs, damages and reasonable attorneys' fees finally awarded against Client in an Infringement action with respect to the portion of the Software independently developed by TKSoftware is expressly conditioned upon the lull performance of all payment obligations by Client under the Agreements prior to the time that the Infringement claim is first asserted by a third party. The foregoing states the entire liability of TKSoftware with respect to infrineentent of any copyright or trade secret by any Software or other materials supplied or provided by 1 KSoftware under this Agreenent. 18. Indemnification of both parties Neither party shall be liable for any liability of the other party. its board members, officers and employees, whether resulting from judgment, settlement, award, fine or otherwise, which arise out of such other party's actions or omission under this Agreement. 19. Choice of Law This Agreement shall be executed in connection herewith and shall be construed and governed by the laws of the State of Indiana and shall be binding upon and inure to the benefit of the parties hereto. The parties agree to submit to the jurisdiction of the courts within the State oflndiana. 20. Remedies for Breach Disputes that arise shall first be escalated through increasingly senior levels of management of both parties, and good faith efforts shall be made by both parties to resolve any such dispute(s). Page 4 o.f 7 EXHIBIT 21. Termination If one party (offending party) breaches one or more obligations hereunder, the other party (offended party) shall give the offending party written notice, which shall specify the nature of the breach. The offending party shall then have thirty (30) days from the receipt ofsuch notice to remedy the breach for which such notice has been given except for the breach of obligations to pay money for which the offending party shall have no cure period. if at the end of such thirty (30) day period, the Offending party has not cured the breach, the Offended party may thereupon terminate this Agreement by giving the offending party a written notice of tertination within ninety (90) days and at the expiration of the 101h day followi..ng the delivery ofsuch notice, the Agreement shall be deemed to be terminated and the offended party shatl,be.relieved from further performance of its obligations hereunder. to the event of either party's fraud .in connection with its performance of any obligation set forth herein, bankruptcy, liquidation (provided that liquidation shall not include a statutory merger), insolvency, or rehabilitation, the non - breaching party may terminate this Agreement immediately upon written notice. In the event of termination, the non-breaching pang is under no obligation to pay the breaching party for any expenses, costs, claims, or liabilities incurred in relation to such termination. 22. Termination by TKSoftware, lnc. Notwit]istanding the previous section, TKSoftware may terminate this Agreement upon thirty (30) days prior written notice if the Client fails,to pay TKSoftware in accordance with the provisions herein. 23. Severability Clause If a court holds any part, term or provision of the Agreement to be unenforceable, the validity of the remaining portions or provisions shall not be affected, and the rights and obligations of the parties shall be construed and enforced as if this Agreement did not contain the particular part, term or provision. The parties agree that any agreement by the parties to indemnify shall be construed to be enforceable to the maximum extent allowed by law. 24. Headings The headings that appear in this Agreement have been inserted for the purpose of convenience and ready reference. They are not intended to and shall not be deemed to define, limit or extend the scope or intent of any provision thereof. 25. Authority Each party represents and warrants that it has the requisite power and authority to enter into and perform the terms of this Agreement and that it has done and Will continue to do all things necessary so that this Agreement will be valid, binding, and legally enforceable. 26. Assignments Neither Party may assign its rights, or delegate its responsibilities, without the prior written consent of the other Party; provided, however that TKSoftware may assign its rights and obligations under this Agreement to a successor -in- interest (due to merger, sale, etc.) without the written consent of the Client. This Addendum shall be binding upon and inure to the benefit of the Parties hereto and their respective successors and permitted assigns. 27. Limitation of Claims. No action, regardless of form, arising out of any of the transactions pursuant to this Agreement may be brought: by either parry more than one year after the cause of action accrued and become known to the allegedly aggrieved party. 28. Entire Agreement and Notice. This Agreement contains the entire understanding of the parties and may not be amended without the specific written consent of both parties. Any notice given under this Agreement shall be sufficient if it is in writing by an authorized representative and if sent by prepaid certified mail return receipt requested, or other commercially reasonable means of delivering written notice at the addresses listed below. If to TKSoftware: If to Client: Attention: Tony Kurzendoerfer Michelle. T. Harrington, CPC President City of Carmel 2113 Brewster Rd. Two Civic Square Indianapolis, IN 46260 Carmel, IN 46032 Page 5 of 7 EXHIBIT Any such notice shall be deemed to have been received on the business day next following the day it was hand delivered or the date indicated by the return receipt. 29. Delays. TKSoftwarc and Client shall not be responsible for any delays caused by Acts of God or any other cause beyond TKSoftware's or Client's reasonable control. IN WITNESS WHEREOF, Client and TKSoftware have duly executed this Agreement as of the day and year first above written. TKSOFTWARE. City of Carmel Name: ? Signature: Ton) itrzendoerfer, President Print Name: EXHIBIT Page 6o17 Appendix A Electronic Claims Transaction Services - Monthly Service Fee The monthlyservice fee is S150.00 per month. 450 claims per month are included in the Monthly service fee. Claims filed in excess of 450 claims per month•will be invoiced at $0.35 per claim. Transaction Services • Deliver claims inan electronic format to Participating Payers. • Report via web portal front -end errors regarding HIPAA EDI format compliance. • Report via web portal error messages received back from Participating Payers. • TK.Software will deliver. Eligibility Requests (270) to Participating Payers, receive Eligibility Responses (271) from Participating Payers & Make available through the Web Portal. TKSoftware provides access to eligibility verification from compliant payers either directly or through the payer's chosen intermediary. 'TKSoftware does not charge Client eligibility transaction fees for eligibility requests exchanged with payers or intermediaries that do not charge TKSoftware a connection fee ortransaction fee. for access to eligibility verification from payers or their intermediaries who charge a connection and /or transaction fee TKSoftware will charge Client a transaction fee. Client agrees to pay TKSoftware S0.20 per eligibility verification request from payers listed as Non -Par (NP); this fee, as well as the list of Participating Payers is subject to change upon notice from TKSoftware. The eligibility verification request fee is a usage -based fee separate from the monthly service fee. Therefore, changes to this fee are not limited to annual changes as specified in section 2. Compensation and Term. • Receive Electronic Remittance Advice (835) from Participating Payers. All 835s will be matched to the appropriate Billing Health Care Location by NPI. Self - Administered Internet Web Portal All services will be delivered through a self administered web portal to which the Client will be Riven access. The basic web portal functions are as follows. • Web Portal Branded with Client Logo. • Claim Tracking • Front -End Rejections • Participating Payer Rejections • Clain Status View • ERA View 835 File Nanning: PAYER NAME_ CHECK DATE_CHECK NUMBER_ CHECK AMOUNT_PAYMENT TYPE.TXT Training TKSoftware or its agent will provide training to Client's authorized personnel as described in Section 3. Client will designate a primary and backup contact that will receive training on use of the system and will disseminate this information to Client's other users. Support Client's primary contact will be responsible for clay -to -day system support for Client users as well as questions that require payer contact. Technical problems regarding use of the system will be escalated to TISoftware or its agent by Client's primary or backup contact only. Special Claim Edits All special claim edits will be specified within a statement of work that must be fully executed before progranuuina can begin. Special claim edits that require less that one hour of programming time will be provided at no charge. Special claim edits that require more than one hour of programming will be subject to charges detailed within the statement of work. File Format. TKSoftware will accept HIPAA 837P 5010A1 electronic claim files for processing. These claims will be validated against the HIPAA standards for required form and content. Any additional programming that is required to correct errors in the form or the content will be billed at the Additional Services rate as described in Section 3. Average A/R Days at contract execution: Initials Date Page 7 of 7 EXH I B T