ESO Solutions/Fire/$11,332.00ESO So lutiohs, Inc.
Fire Department
Appropriation #102-632-02 P.O. t;2-1256
Contract Not To Exceed SI 1,332.00
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 ESO Solutions, Inc., 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 Agreements 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 and to
otherwise perform the requirements of this Agreement by applying at all times the highest technical and
industry standards.
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 Eleven Thousand Three Hundred Thirty Two Dollars ($11,332.00) (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 sixty (60) 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, 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.
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:
Vendor expressly warrants that the Goods and Services covered by this Agreement will conform to
those certain specifications, descriptions and/or quotations regarding same as were provided to
Vendor by City and/or by Vendor to and accepted by City all of which documents are incorporated
herein by reference, and that the Goods and Services will be delivered in a timely, good and
workmanlike manner and free from defect. Vendor acknowledges that it knows of City's intended use
and expressly warrants that the Goods and Services provided to City pursuant to this Agreement
have been selected by Vendor based upon City's stated use and are fit and sufficient for their
particular purpose.
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ESO Solutions. Inc.
Fire Department 2011
Appropriation P102-632-02 P.O. 4
Contract Not 'ro F x.cet:ti S11.33 '.00
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:
If requested by City, Vendor shall promptly furnish to City, in such form and detail as City may direct, a list of
all chemicals, materials, substances and items used in or during the provision of the Goods and Services
provided hereunder, including the quantity, quality and concentration thereof and any other information
relating thereto. At the time of the delivery of the Goods and Services provided hereunder, Vendor agrees to
furnish to City sufficient written warning and notice (including appropriate labels on containers and packing)
of any hazardous material utilized in or that is a part of the Goods and Services.
7. LIENS:
Vendor shalt not cause or permit the filing of any lien on any of City's property. In the event any such lien is
filed and Vendor fails to remove such Fen 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.
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.
INSURANCE AND INDEMNIFICATION:
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 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. Vendor shall indemnify and hold harmless City from and
against any and all liabilities, claims, demands or expenses (including, but not limited to, reasonable attorney
fees) for injury, death and/or damages to any person or property arising from or in connection with Vendor's
provision of Goods and Services pursuant to or under this Agreement or Vendor's use of City property.
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LSO Solutions. kb:.
File Department 2011
Appropriation ;7102-632-02 P.O. 42-12.56
Contract Not 1 o Fxceed SI 1.332.00
Vendor further agrees to indemnify, defend and hold harmless City and its officers, officials, agents and
employees from all claims and suits of whatever type, including, but not limited to, all court costs, attorney
fees, and other expenses, caused by any act or omission of Vendor and/or of any of Vendor's agents,
officers, employees, contractors or subcontractors in the performance of this Agreement. These
indemnification obligations shall survive the termination of this Agreement.
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. 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.
13. 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.
14. 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.
15, 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.
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LSO Solunon,
Fire Department 2011
Appropriation 1(12-632-02 P.O. k2=1256
Contract Not To Exceed S11.332,00
16, 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.
17. 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
One Civic Square
Carmel, Indiana 46032
ATTENTION:
If to Vendor:
AND
Douglas C. Haney, City Attorney,
Department of Law
One Civic Square
Carmel, Indiana 46032
ESO Solutions, Inc.
3005 South Lamar Blvd., Suite D 109-372
Austin, TX 78704
Telephone: 866-766-9471 x 1022
E-Mail: chris.dillie@esosolutions,com
ATTENTION: Chris Di !lie
Notwithstanding the above, notice of termination under paragraph 18 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.
18. TERMINATION:
18.1 Notwithstanding anything to the contrary contained in this Agreement, City may. upon notice to
Vendor, immediately terminate this Agreement for cause, in the event of a default hereunder by
Vendor and/or if sufficient funds are not appropriated or encumbered to pay for the Goods and
Services to be provided hereunder. In the event of such termination, Vendor shall be entitled to
receive only payment for the undisputed invoice amount representing 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.
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1.S0 Solution,. Inc,
Fire Department 2011
Appropriation f102-632-02 P.O. 42425:6
Contract Not To Exceed S11.332.00
18.2 City may terminate this Agreement at any time upon thirty (30) days prior notice to Vendor. 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. 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.
20. 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.
21. TERM
Unless otherwise terminated in accordance with the termination provisions set forth in Paragraph 18
hereinabove, this Agreement shall be in effect from the Effective Date through December 31, 20
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.
22 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.
23. 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
set forth in Agreement.
24. NO THIRD PARTY BENEFICIARIES
This Agreement gives no rights or benefits to anyone other than City and Vendor.
25. 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.
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ESO Solutions. Inc.
Fire Department 201
Appropriation ;4102-632-02 P.O. 1124256
Contract Not To Exceed S11.332.00
26. 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.
This Agreement may only be modified by written amendment executed by both parties hereto, or their
successors in interest.
IN VVITNESS WHEREOF, the parties hereto have made and executed this Agreement as follows:
CITY OF CARMEL. INDIANA
by and through its Board of Public
Works and Safety
By:i
A
A r mes Brainard, P -sidi
ate
M ry An Burke, M
Date:
Lori S. W
Date.
ATTEST:
be
Member
Officer
Iva Cordray. IAMC, Clete reasurer
Date:
ESO SOLUTIONS, INC.
4, Jamm Asr.st h.% l, .1 (Akti I'FS(' icr,,,r121.: PAN
Authorized Signature
C 6J('
Printed Name
C e --61
Title
FID/TIN:
Last Four of SSN if Sole Proprietor:
Date:
(c(i`17'1
This Subscription Aereement ((he "A2reenient is made as of the date of at execution below {the
"Effective Date and entered into by and between FSO Solutions, Inc., a Texas corporation yvith its principal place
of business at 3003 South Lamar Blvd.. Suitt 1) 109-37'2. Autiu, 1 exas 78704 (hereinafter referred to as
and Carmel Fire EMS with its prineipal place of business at 5037. E 131" Carmel. Indiana (hereinafter referred
to as "CusiiIrrn..7 with reference to the followi4n
WI IERFAS, [St) is in the business of providing electronic patient care reporting services to businesses and
municipalities which provide emeigcncy patient ctuv. and Customer desires to obtain the services front FSO. ail
upon the terms .ind conditions se( rth herein,
\OW 1 tLR FTORE, C ston and ESC) hereby mutually' acree as 1011ovvs:
1. Services. LSO shall provide to Customer, during the Term. the "Sery:ices" selected by Customer on Exhibit A
attached hereto.
Term. The Term (lithe Agreement shall commence on the Effecthe Date and shall terminate one year atter the
Effective Date. The Agrertneni shall automatically renew for successive renewal terms of one year each,
unless one party gives the other party written notice that the Agreement will not renew, at least thirty (30)days
prior to the end of the then-current Term.
3. Subscription Fees, Invoices and Payment Terms.
a. jpion Foes. Customer shall pay to ESO the Subscription Fees for the Services as indicated on
Exhibit and for ePCR. Customer shall pay an estimate of the annual Subscription Fees in accordance
with subparagraph b. below. Customer will be invoiced for the yearly Subscription Fees on an annual basis.
in advance. and all invoices shall he payable within thirty Olt days,
Istiitl Subscription Fees Ibr e.PCR. Customer shall pay to ESO the annual Estimated Subscription Fees
or the cPCR Suite as indicated in Exhibit At leas( once every year ESC) may evaluate Customers
avcriTc annual call volume and increase or decrease the Customer's next iavoice based on :flanges in
Customer call volume
litSC, ACM7E1WONT
C. Pavtn ot1nvoiees CUStomer shall pay invoices received from ES() within thirty (30) days alter the
receipt of the invoice (the 1)ue Date").
d. Disputed Invoices, If Customer in good faith disputes any portion of any ES() invoice, Customer shall
submit to LSO. by the Due Date. full payment of the undisputed portion of the invoice and written
documentation identifyine and substantiating the disputed amount. If Customer does not report a dispute
within thirty. (30) days following the Due Date of the applicable invoice, Customer shall have waived its
right to dispute that invoke. Any° disputed amounts determined to be payable to ESO shall he due within
ten (10) days of the resolution of the dispute
Exhibit Pr`
iq
4, Termination
a. Term Mali on _by Cu s ttineer j usc. If LSO tails to perform a material obligation under this Agreement
and does not remedy suit failure within thirty (30) days following written notice from Customer ("00,
Pefeter), Customer may terminate tins Agreement without any further hability except for the payment of
all acerued but unpaid Subscription Fees, If ESO is unable to provide Servicc.(s) for ninety 00)
conseeutiyc days due to a Force Majeure event as defined in Section 12a. Force Ahrieure, Customer may
terminate the affected Sees ice(s) without liability To FSO.
b. Tem tion by ES() for Customer Default LSO may terminate this Agreement with no further liability- if
(i) Ciestomer fails to make payment as required under this Agreement and such failure remains uncorrected
Fr Ilse t3) days following written notice from ESO, or ii) Customer fails to perform any other material
obligation under this Agreement and tioes not remedy such failure within fifteen (15) days following
written notice from FSO (hereinafter collectively referred to as "Customer Defaule). In the event of a
Customer Default. ES() shall hasa... the right to (1) terminate this Agreement tii) suspend all Serviee(s)
brine provided to Customer, (iii) terminate the right to use the Software on the web or mobile devices (is)
apply interest to the amount past due, at the rate of one and one-haft percent (leie),) (or the ittaximum legal
rate, if less) of the unpaid amount per month: (v) offset any amounts that are owed to Customer by LSO
against the past due amount then owed to ESO, andior ('i) take any action in connection with any other
right or remedy ESO may have under this Agreement at law or in equity. If this Agreement is terminated
clue to a Customer Delault. Customer shall remain liable for all Subscription fres and other charges due to
ES(). hi addition. Customer agrees to pas LSO's reasonable expenses (including attorney and collection
agency fees) incurred in enforcing ESO•s rights in the event of a Customer Default,
5. De1er ofData on Ex •na f. arecmen1, Within thirty (30) days after the expiration of
this gees:mem or thc termination Leetement pursuant to Section 4a above. ESO will deliver to
Customer its data, in machine readab e binnat, on tape or On CD. at Customer's option. CUStOitir Shall
reimburse. LSO for the cost of the tape(s) on w hich Customer's data is delivered lo Customer. If Customer
wants the data to be delivered in a medium other than tape or CD, ES() shall do its best to accommodate
Customer. provided Customer shall pros ide the medium on which the data is to he provided and shall pay for
any additional cost incurred by ESO in accommcelating this request
6. System Maintenance. in the event ESO determines that it is necessary to interrupt the Services or that there is
a potential for Services to be interrupted for the performance of system maintenance. LSO will use eid-faith
(Marts to notify Customer prior to the performance of such maintenance and will schedule such maintenance
during no-peak hours (midnight to 6 3.111, 101/4:al In no event shall interruption for system maintenance
constitute a failure of performance by ESO.
Access to Internet. Customer is solely responsible for obtain ng. and providing for its own broadband
connections imdfor connections to the Internet. and ES() makes no representations regarding, the advisability of
any pros, ider or particular network to Customer. Customer's network and Internet access must meet the
minimum requirements set forth in Paragraph 8 below.
S. Mobil
Software
e Use and Su. ort. If Customer elects to use I-SO's proprietary ESO Pro Software (the
in mhi1e deeee. the provisions of this Section 8 shall apply.
u. Use of Software. Sutiject R) the terms, conditions and restrictions in this Agreement and in exchange for
the per unit Mobile Software Interface Fees, ES() hereby grants to Customer nces-exclusive, world-wide.
non-iransferable. rights. Icir the term of this Agreement, to use and copy (for installation and backup
purposes only) the Software to the units for which the Mobile Software Interface has been purchased.
b. QwnciTehip andltes etions. This Agreement does not convey any rights of ownership in or title in the
Software or any copies thereof. All right, title and interest in the Software and any copies or derivative
works thereof will remain the property of ESO. Cstome will not: (a) disassemble, reverse engineer or
irtodit the Software. (h) allow any third parts i use the Software: (c) tisk: the Software as a component in
an product or service provided by Customer to a third party: (d) transfer. sell. assign. or otherwise corivs:
the Software: (e) remove an proprietar) natives placed on or c.tuned within the Software; or (I cop) the
Software except for backup purposes, Customer \Ain keep the Sofiware free and clear of' all claims, liens,
and encumbrances.
Mobjjetioftware IntertaccFee. Thc Ndole Sonware Interface Fee is non-refundable, The Software shall
be considered accepted upon delis ery to (tomer,
J. Suppprt and )pdates. Duni g thc term or this Agreement, ES() shalt provide to Customer the sappor,
services and will mete the service levels as set forth on Exhibit fl attached hereto IS() will also pros ide to
Customer bloklate s. in accordance with fxliihit U.
e. ()hr Sr s ices, Upon request by Customer. ESO may provide services related to the Software other than
the standard support described above, at E,SO's thcii-current labor rates. This ma) include on-site
consuitalion. custoiniz,ition, and initial (et:link:al assisttince and training for the purpose of installing the
Software and training seleeted personnel on the use and support of the Software. ES() will undenake
reason,tble efforts to accommodate any written request bs Customer for such pmfessional secs ice
fide. 1St t hereby represents and warrants to Customer that [St, ts the owner the Software or otherwise
has 'tile right to grant to Customer the rights set forth in this Agreement, In the event any breach or
threatetied breach of the. foregoing rept esennition and ss an (ustomer's sole remedy shall he to require
ESO to either: i) procure. at ESO' s expense. the right to use the Software. ii) replace the Software or an)
pail thereof that is in breach and replace it with Software of comparable functionality that does not 1/4:1111,
any breach
g. deintiLtion by Cus,toiner. Customer vs defend and indemnify ESO from an and all claims brougfit
against I:SO by third partic::, and will hold LSO harmless from all corresponding losses incurred by ESO
arising out of or related to (I Customer's misuse of the Software, tiit any services provided b) Customer to
third parties. or tin) Customers negligence or inaction in connection with the services it provides to third
parties
Limitation of liability. NOTWITIISTANDINii ANY OMER PROVISION HEREOF, NEITHER PARTY
SHALL BF LIABLE *TO HIE OTHER pmay OR ANN PARTY FOR ANY INDIRECT
CONSFQI iNTIAL. INCIDENTAL. RELIANCE, SPECIAL, EXEMPLARY OR puNi rivE DAm.A.GLs
(INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOS"! PROFITS, 1 OS1 REVENUES OR COST
OF PURCIIASING REPLACEMENT Sl'RV ICES) ARISING OUT OF ()R RELATING TO 1 HIS
AGREEMEN T. ADDITIONALLY, ESO SHALL NOT BE LIABLE. TO CUSTOMER FOR ANY AC TUAL
DAMAGES IN EXCESS OF Tilt AGGREGA FE AMOUNT l'HiVF LSO HAS PRIOR TO SUCH TIME
COLLECTED FROM CUSTOMER WI II RLSPECT 10 SERVICES DELIVERED HEREUNDER.
FURTHERMORE_ IN N(.) EVENT SHALL EITHER PAR TY BE LIABLE '10 THE OMER, EITHER IN
CONTRA(' 1 OK IN TOM. FOR PRO 1'Et."1 I0?' FROM liNAUrHoRizEn ACCESS OF cus N-1ER
DATA ()R FROM UNAI, THORIZED ACCESS FO OR Al_TERA rioN, THEFT OR DESTRUCTION OF
CUSTOMER DATA FILES. PROGRAMS, PROCEDURE OR INFORMATION NOT coNTRoLLED RY
LSO, TI fROI ACCIDEN I OR FRAUD( 'TEN I MEANS OR DEVICES
AcknowIektements and Dikelainter of Warranties, Customer acknowledges that I:SO cannot guarantee that
there will never be any outages in ESO's network and that no e r e ti s shall he gis en in the event Customer's
access to LSO's network :s interrupted. 1:N1FSS OTHERWISE SPECIFIED FIEREIN, ESO MAI;LS NO
WARRANTY To CUSTOMER OR ANY 01111-R PERSON OR ENTITY, WHEITIER EXPRESS, IMPLIED
OK STATt 1010', AS TO 1 I IL DEM:1211'TV )N, QUALITY. MERCIIANTABII ilY, COMPEETENI-SS OR
FITNESS FOR ANY PURPOSE, OF ANY SERVICE OR SOFTWARE PROVIDED HEREUNDER OR
DESCRIBED HEREIN, OR AS TO ANY OTHER 'MAT (INCLUDING wITHouT LANNI e\ HON
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aqa: 1 u JO )itttl iu0d u,ns lnott►i.\\ s.i0 'u) put; pa
110)0 10u1110a 3140uo+zc1J at.t) puo,\aq St tt'EIl itla UU uu0w 01 It1;1111a7J 1`+ tall Jc)j pout lap s1 tp ll 'z111a?e<
3,-)40,4 Jo 00S0<J .iq p0111131Jd Jo lla. {clap tit I03013:0 -8 6141 .Io JJUI'.uuctjiad S i.uird (tans tr.41 11121`'. '41
put 11 1t.atuJa.1111 S!1j 131))01 1111t)Jap tit pauo,N) .1t)u 'Jail!° attl t)i q)))t aq Hulls lurd -11L 1! 1 °?J1ThT1'>: 510
"S3ii0tt1Bj) \Jt`tanott) 01 p.- 100 111t1 ltt!pnpt1{ 'ti1.:tl UI .10 .115'.
ti!I11 .111)Un 3Ic1E111?.10 ?i1 it'LU `0 Sa)l?attlaJ it: sllltt.t 10ttla) LI t1' 01 Slt>tilppr 111 J1 J0
Ut: )Pas z,l p0 tljUa Jq it'tlt \ur,d papal ll' aq) 'SU015(.01 /d 3" ti1t :)t1l ju Il;,t j:1a11a)it:l.)t11 Jt) ti: C
10 113. >lt 0! tuatal jlrIsttt q iglu sa ictttt It i1r.11tu:ttu ,crle,a(.) •llud ZiU!SOla1lj) asp 1 isanh troll
Jo .t1.ird ingS01a•1p a1(1 01 ll•1tunt0J aq nut put) i11};d 3utropsgl 1t11 #tl iJadl),Id a11) utrtttzJ tilts {s ttttlirttuolul
pultmpi1u0:) '1.I1t1 ,j0 oaiiiop algruovi:aJ n uegl ssal ul0\a 00 0! )nq °ut:)i1Uttuojiit letluapl!tto:) u,", su i 310.c!
kit patio .1.101 JO a)J.)ap 0LUCV 04j R11!!1 a.li})-ot,zij? 1U0J) 00tl0t0.10jui lti11112pr1tt0,) 1231o1(( 11011s !}tit, 1/Tatttf Jii.'
s!U1 jt' s •t 10 ,4!J0 t!o)ICultojUI !0!)0,)p) a•n 11014s 1Ja1Jdt00J ;nu u,.,ilt)tuuo,jui t5iltl 1 51? 1111 _1
Ji1t, al) Jo IU0S11oa 0 1()1Jt1 atll )tioti)ltt il.ttrd pitgl ttast?I;tcip 34 100 ll0tis U09004 tt1jtlt 1 €:Clilal)i111t):)
00kol,sq) 1 l)
s >l a0!Iou .101.1(! a. \0! €)1 s(10!. )10 O'jIlt 111afdpll Alp )01(1 paptnotd .1.3p..0) .10 )111043Jtitl?1J ')Sa11bo.
10)03ttltlJa-1t)u .tt1 lt'l0ipni 0 0) utunsind Ut)111:ttlJ0ju1 {011Uap11U0') act)j)Stp A11tt1 1t13ldIOOJ 011 1:t01CUuU)UI
il'iltt: p11U0,) tl:3fS M010j 01 pot, C aArq ()l.\1 ti1L1l:1inst4o0 Atli` S.30.1: V.1/110.1 Jtt; ptlo t)U0idt00.1
041 Jtj tic)sl3(1 "it3Fi 01 tu01100U0)0i 041 0S01J'1Ip 100 liF14S itop010.tO)L!j IL:t1U0Ptltli) l0 103010aJ V
t
it II4,Ntf':fUJk11110!l UOU)J. \1 \tl nl 101 I'stAOlddn '.1 (,t) 10'1L4at➢t.)aJ5V cu.)) laptin ‘110 tf?i!140 Stl1 t Ul L.a
lfOtj1l.\\ 1"0d01a ap JO pOJtob.Nt {110 apUadaput 1t \I) :k10!) i140 1 .:0); .lo 7.44)3 ti)t119 UoSJad
j?,tlt {I 0 1.001 pa,lla0OJ A:1111119fl!J s! (li!) :41J$tj 1~;U 0401 0ll,)t) 101: 11i tiu0.1,\ 011 14);1101)11 11,, iINtic
(tt) sll ,10 )00 at11 )0 tF.!)liapt)000 0 (71.11 0) 00!10'!140 \U0 10 a`Jl i1-rd iitttA)I0:IJ 0111 \ct t1• \i i)U)j
,puaJiC SL,\\ (9 1041 00901.uoltif {tic opnpul 100 s.)01) 0000UUO101 11.1l0apJUO,`) 'JJnsOl>Stp 01(01 0!I) 10 \13Th1
;iulsol0 ll) 7111 .\q -AA V. I A 1>,1(102.41•, 10 IVI.! \JCll:1Ni(:3.)• p•?`l.I00! ,<lJlla(a ,s 1041 :ut;(1 .satp0 at11 ut :■ued
au ill 13ui11J.\1 1!! p.lsut, Iit uc 110 uitaut IIrtls ila)l) €TJi?gltl {tuulal)4111 ut)lt0(U.403iti (lU1U0liL ctu) 'i t
11.)l\ 1 ,1(T:-1).1"q11
"I)I S:1L1,\V)1NV't1 h0I101 4(•) 'VIV '(tV,l.VCI :I() tl,tl :1- 1=1l#J..l_Vli.l.
d. iJ 'ress ,Keleases \j Neither part Illay use the other patty's name or trademarks, or issue
an publicity or make an> public statements Qoncerninf.?, the other party or the existence or content of this
Agreement, without the other parry's prior ‘k ritten consent, Notwithstanding. Customer agrees that ESO
may use Customer's name and logo in FS) sales presentations. without Customer's prior written consent,
duriii,ti the Fenn of this Agreement. but only for the purposes of identifying the Customer as a customer of
ESO, I ikew isc. Customer may use 1 name and logo to identify ES() as a vendor or pro v ided for
kIstomi:r.
A,t,:sigiptkerrt. Customer may oniv assien this Agreement if it has received the prior written consent to such
assignment from ESO. hich consent shall Ilia he unreasonably withheld
Compfiiine,e wilt! 1,...a Both panics shall with and give ali notices rqutrd by zilI applicable
federal. state and bacill laws., ordinances. rules. regulations and law fill orders of any public authority her
on the perfortnanee of this Agreement,
Ali notices and other cominunicatio is hereunder shall be in writing awl shall be deemed to have
bVC11 duly given as of the date of deliver> or confirmed faesimile or ClItail (Fli1V,Itlisiort. Notices ii be
delivered or snu PO the parties' respective addresses' set forth ahk
h, 'faxes. Unless otherwise required by law. Customer will he responsible for and will remit tor will
reimburse ESO for) all taxes of any kind, including sales, use, duty. customs, withholding. properhy, afire-
added, and other similar federal. Slate err d taxes (other than taxes based o ES(•s net income) unposed
in connection with the provision of Sery ices or the use of thc Software provided to Customer under this
Agreei»ent
I\ WITNESS Will:RUA', the parties have executed this Agreement as of the date last written below,
Es.OSOLt tioNs.1.se. Customer
Name: Chris Dillies
Tale: President/CH)
elephant.: 86a:766.9 x 1022 Telephone:
Email: ehris.dillie@esosolutions.com
Name:
Tale:
Rate:
(tistoiner herebl%, selected the followiiht FS() Services, at the fees indicated:
ouozp,pit.),
‘v.-toxt%ritR.A-A
"....,,x44V0101t
St,
tr-CR
Ser. Trawcfseg
EXHIBIT A
SOFTWARE ANNUAL FEE SC1- EDULE
sz.P.s.soo I
PANME■ r loots AND RA11%113%11' CS11)ND3
6
St' EIS
58 Or)
ii:"35.00
ar
The cPCK subscription year will begin upon execution of the Subscription Agreement or upon the
commencement of active work on software implementation, whichever date comes later Customer will be
invoiced for full cPCR mobile interfaces. Cardiac Monitor interlace and one day of trainintz, totaling
S11,332.00 upon commencement of implementation. Customer will be invoiced for yearly subscription tee
January I. 20:2.
EXHIBIT ft
SUPPORT SERVICES AND SERVICE LEVELS
This Exhibit dcse,iheu the software support services ("Support Services") that ESO will provide and the ^cnice
levels that ES() will meet,
Do/li, it*
Unless defined otherwise herein. capitalized terms used in this Exhibit shall have the same ineaning as sex forth in
the Agreement
tat 'Cuaomcr Service Representative" shall he the person at ESO dcsignated by ESO te receive notices otFrrors
encountered by Customer that Customer's Administrator has been unable to resolve.
(h) [rror' means any [mi|umo[ the Software x/conform in any material respect with its published specifications.
(e) "Error Correction" means uhug fix, patch, or other modification or addition that brings the Software into
material conformity with its published performance specifications.
(d) "Priority A [rnor' means ooError that renders the Software inoperative or causes u complete failure of the
Software.
(e) "Priority 0 Eno,` means an Error that substantially Jetzodcsd`c performance o[the Software or materially
restricts Customer's use of the Software.
f) "Priority Error" means an Error that causes only a minor impact on Customer's use (tithe Software.
Up ate rueans rniy new colrerciaIIy aeilahk' or de {able veNion ofthe the Software. which may ioJoJc
Error Corrections, enhancements or other modifications. issued hy C90 from time to time to its Customers.
:h)^Noro o| Business Flours" means S:00 am to 5:0 pm NIouduy/hnoueh Friday. Central Time Zone,
2 [m/voxo'Obligatiorts.
Customer will provide at least one administrative employee (the A;inistrator' or "Administrators") who will
handle all requests for first-level support from Customer's employees with respect to the Software. Such support is
intended to be the front line" for support and int`nnnUnn about the Software {u Customer's cmp|oyucs. ESO will
provide training. doctmientation. and materials to the Administrators to enable the Administrators to provide
technical support to Customer's employees. The Administrators will refer any Errors to ESO's Customer Service
Representative that the Administrators cannot resolve. pursuant to Section 3 below: und,tke Administrators will
assist ESO in gathering information to enable [ST) to identify problems with respect to reported Errors.
SvUpw*Ser'ic,^.
<a) Szu/u. As further described herein, the Support Services consist .`f: (i) EnorC"rrmehmw that the Administrator
is unable to resolve, and (ii) periodic delivery of Error Corrections and Updates. The Support Services wilt be
available lo Custoiner during normal business huuo, to the extent practicable. Priority A Errors encountered
outside normal business hours may be communicated oo the Customer Service Reprentative via telephone or
email. Prinriry B and C Errors encountered outside: nnnnx| business hours shall be communkaed via email.
(h) Procedure.
(i) Report /Error. In reporting any Error. the Customer's Administrator will describe to ESO's Custom rr
Service Representative the Error in reasonable detail and the circumstances under which the Error occurred
or is occurring; the Administrator will initially classify the Error as a Priority A. B or C Error. ES(}
reserves the right m reclassify the Priority of the Error.
(ii) fffon^Requir,d. ES() shalt exercise commercially reasonable effOrts to correct any Error reported by the
Administrator in accordance with the priority level assigned to such Error by the Administrator. Errors
shall be communicated to C5O`x Customer Servicc Representative afier hours as indicated below.
depending on the prioritv level of the Error. In the event of an Error. ESO will witlnn thc tirne periods set
forth below, depending upon the pnority level o[the Error. commence verification of the Grr*n and, upon
verification, will commence Error Correction. ESO will work diligently to verify the Error and. once an
Error has been verified. and until an Error Correction has been provided to the Administrator. shall use
commercially reasonable, difi efforts t pr' ide a workztround for the Error as s0011 as reasonahl,v
ES() \sill provide the Administrator with periodic reports on the status ofthe Error Correction
on the frequency as Inklic-al,n't below,
liriorit of Communicatink! Error to
Error ES') outside Normal
Business lours
Priorit■ Telephone or email
Prioritv Email Within I business
1■01ifiCalitM
Within two calendar
s eeks of notification
lime in Which ES()
Will Commence
Verification
Within 8 hours 41 1
1)( ificat ion
8
1 Frequency of Pc
Status Reports
Fvery 4 hours until
resolved
Leery 6 [WM'S Uilni
resolved
1::S().%:(tri:$:):
(.(1)
LS() is responsible for maintemmee of Server are. Server adinwistration includes.
(i,) Mon toring and Respons,..°
Sery livanability Nionitoring.
(in) Backups
iv) Maintenance
A. Microsoft Patch Man:q.mment,
B. Security patclie to supported applications and related components
C. Event I ,oi2, Nlonitorin?.
D. 1. oil, File Maintenance
E. Dri%e Space Monitoritm
v Security
i) Virus Definition Prt..:cnt
\Ai) Firewall
Every week until resolved
1'hi ;1
het\.Cain E.()
1 r7l it
1F1 1 <I,: \1. Iitistn s A.y. c1:Ite and ('4ttered Littity are It,tttic to an agreement (ihe n ice
•1atectrient "i_ put snafu to \vhith the fulfillment of' the Parties' ohlijatiorts titer <urider ne,.:essttatc, the c•\chanl;L' t
access tl daat:.i int hidiit3: 3!)dt\ tCltt:tl identifiable health tniorinati ,n,
111.R.1- F3usinesi, fate ac itomrlc; that Covered 1 ntito llas in itc; f
;1f iclett #ifi.�'\tc
health information as defined Health ht,ur,ut t f'c\rtabil
;04-191 ("1111'A .1"1 and the regulations promulgated thereunder; and
N( 1 1II :RE F: 0RE', !t. ,.-otisiderat ion i)t' tit, tt
ecntent (this
tions Inc..
F;ZIfII3IT C
B(iSINKSS ASSOCIATES AGREEMENT
1 !lift ()i Ilt•t'.\ 1>t
meat is made and entered iI n date hr• and
Associate a State tit texas corpt'ralion, and Carmel E=ire 1 E1 \tS
"1111c, 1 iansactirnl Nl::rrdard Rec,trlGali n" mean; the t'c\de or Federal Re i t l:ttrt3tts t'CFR at 110c
c
itttt a d 162.
iduat'• means the st;h)cet of PH-11 +r. it deceased. 1)15 fir her personal repre'scnh
"Pat 1l shall n1c:a
ttifi\ idta3l m,+\ l)l: 1'c'Ten ed to a.: a 'Tar t\
11Z fart 1 l ;tri
Required 13v Law
(a) n(ti tt) use iar
;c3
Vitt
31tit\ tnd E3usincs
.:an ll?t: 'St21#Bd<t t'tf?. ftrr l'ri \ac\ of tndl \'t,1n.911\ idt: l:ilfl.tf
parts A and 1".
\I{Tfl }:1
I ?FJ•INTII( )NS
'd. in this \treemer#t shall have the meanings c Is >rth belol■
have the same ineanintz as •requi #cd h>, l:t••" in -f' (1 h
Secret.: shall inearr the 'c,,retar\ c:1 tilt t)craartntcnt 1Icafth and Nonfat
RIflJ 2
t "FII/FNT1N II
hies, ,A 13tislnc ss ■cac !att.' a'r2t` as 1 ,•ilc
3101111se;° ::ttd eitt'Ctl.titt tla rc nt<tf$cr til)111.°
data that ..)tttaiu
t311tadailit :'1 i «it
shad have the sante Meaning as the term protected health information in 4; C`1 R §160,10,1,
it1 the inftlr'mati;91' Created or received by E3usules-..• \s•:(i. iatc from or an ikltalf of the t
d Or required h\ this Agreement or as
?it establish, Etta intam. and use appropria te satC'ii& t +1 f)recnt list' t)r <]I u1 tl.c E'111 t�tltt;r
than as permitted herein:
r*. pt rt to ('n \eacd Entity
wr eenteln. ct• an ttn-:use ol'the !'11 1, tnelttding but Clot limited to s1stem- :ait:pr•lanti c' or hie
access or disclosure t't the I'M not pro\idcd tiar h\ this
it becomes aware, u id to mitigate. to the extent practicable. any harmful effect that is known to
Business Associate as a result thereor:
(d) to enforce and maintain appropriate policies, procedures, and access control mechanisms to ensure
that any aeent, including a subcontractor, to whom it provides PHI received from, or created or
received by Business Associate im behalf of Covered Entity agrees to the same restrictions and
conditions that apply through this Agreement to Business Associate with respeet to such
intOrmation. 1'he access and privileges granted to any such agent shall be the minimum necessary
to perform the assigned functions:
(e) to provide access, at the request of Covered Entity. and in the time and manner reasonable
designated by Covered Entity, to 19 fl n a Designated Record Set (as defined in the Privacy Rule),
to Covered Entits or. as directed by Covered Entity, to an Individual in order to meet the
requirements under 45 CFR §164.524:
(1) to nake any amendment(s) to 1911 in a Designated Record Set that the Covered Entity directs or
agrees to pursuant to 45 ('FR *164.526 at the request of Covered Entity or an Individual, and in thc
time and manner reasonably requested by Covered Entity;
(g) to inake internal practices, books, and records relating to the use and disclosure of PHI received
from. or created or received by Business ,\ssociate on behalf of, Covered l':;ntity available to the
Co‘ ered Entity, or at the request the Covered Entity to the Secretary, in a time and manner
reasonably requested by Covered Entity or designated by the Secretary, for purposes of the
Secretary determining Covered Entity's compliance \A ith the Privacy Rule:
(h) to document such disclosures or PHI. and information related to such disclosures, as would be
required for (oNered Entity to respond to a request by an Individual for an accounting or
disclosures of P111 in accordance with 45 CFR 64.528:
tit to provide to Covered Entity or an Individual, in a time and manner reasonably requested by
Covered Entity. information collected in accordance with Section 2.1(i) above to permit Covered
Entity to respond to a request by an Individual for an accounting of disclosures of P141 in
accordance with 45 CFR §164.528:
(J) to promptly notify Covered Entity of ail actual or suspected instances of deliberate unauthorized
attempts (both successtid and unsuccessfitl) to access P111:
(k) to maintain and enforce policies, procedures and processes to protect physical access to hardware.
software and/or media containing PI11 (e.g., hardcopy. tapes, removable media, etc. against
unauthorized physical access during use, storage, transportation, disposition and /or destruction:
(1) to ensure that access controls in place to protect Pill and processing resources from unauthorized
access arc controlled by two-factor identification and authentication. a user 11) and a Token.
Password or Biometrics.
2.2 Disclosures Required BY Law.
In the event that Business Associate is required by law to disclose PHI, Business Associate will
immediately provide Covered Entity with written notice and provide Covered Entity an opportunity to oppose any
request for such P111 or to take whatever action Covered Entity deems appropriate.
2.3 Specitic.: Use and Disclosure Provisions.
(a) Except as otherwise limited in this Agreement, Business Associate may use PHI only to carry out
the legal responsibilities atilt: Business Associate under the Service Agreement.
(h) Except as otherwise limited in this Agreement, Business Associate may only disclose PHI (1) as
Required By Law. or (ii) in the fulfillment of its obligations under the Service Agreement and
provided that Business Associate has first obtained (A) the consent of Covered Entity for such
disclosure, (B) reaskatable assurances from the person to whom the information is disclosed that the
PHI will remain confidential and used or further disclosed only as Required 13y Law or for the
purpose for which it was disclosed to the person, and (C) reasonable assuranees from the person to
10
h)
C)
whom the information is disclosed that such person will notify the Business Assoc ate of any
instances of which it is aware in which the confidentiality of the information has been breached.
QblieatiOns Of CoVered Ent its
Covered Entity shall notify Business Associate of anv limitations in its notice of privacy practices
of Covered Entity in accordance with 45 CFR §164.520, to the extent that such limitation may
affect Business AhNl■ciase use or disclosure of PHI
CoY ered Entity shall notify Business Associate of any eltanges in, or revocation 011 permission by
an Individual to use or disclose P111. to the extent that such changes may affect Business
Associate's use or disclosures of P111.
Covered Entity shall notify Business Associate of anv restriction to the use or disclosure of PHI
that Covered Entity has agreed to in accordance with 45 CFR 064.522. to the extent that such
restriction may affect Business Associate's use or disclosure of PHI,
t d) Eta any PHI received h Co‘ ered Entity from Btisiness Associate on behalf of a third party or
another covered entity. Covered Entity agrees to be hound to the obligations and activities of
Business Associate enumerated in Section 2.1 as if, and to the same extent, Covered Entity was the
named Business Associate hereunder,
Permissible Requests by Covered Entity.
Covered Entity shall not request Business Associate to use or disclose PI If in an Manner that would not be
permissible under the Privacy Rule if done by the CoYered Entv
2 6 Polie\ and Procedure Rey ieyv.
Upon request, Business Associate shall tnakt: 4vailable to ('o‘c.ret.i Entity any and all documentation
relevant 10 the safeguarding of P111 including but not limited to current policies and proeedures. operational
manuals anclior instructions. and/or employment andior third party agreements.
ARI
3.! Government Healthcare Proorarn Representations.
Business Associate hereby represents and warrants to Covered Entity, its shareholders, members, directors,
officers, agents. or employees that Business Associate has not been excluded or has not been served a notice of
exclusion or has not been served kith a notice of proposed exclusion. or has not committed any acts which are
cause for exclusion from participzition in, or had any sanctions, or civil or criminal penalties imposed under, any
federal or state healthcare program, including, but not limited to. Medicare or Medicaid, and has not been
convicted, tinder federal or state law (including without limitation a plea of nolo contendere or participation in a
first otTender deterred adjudication or other arrangement whereby njeidgrnent of convictiem has been withheld), ofa
ciirninal offense related to (a) the neglect or abuse of a patient, (hi) the delivery of an item or service, including the
performance of management or administrative services related to the delivery of an item or service, under a federal
or state healthcare program, (c) fraud, theft embezzlement, breach of fiduciary responsibility, or other financial
misconduct in connection with the delivery of a healthcare item or service or with respect to any act or omission in
any program operated by or financed in whole or in party by any federal. state or local government agency, (d) the
unlawful. manufacture, distribution, prescription, or dispensing of a controlled substance, or (e) interference with or
obstniction of an investigation into any criminal offense described in (a) through d) above. Business ..kssociate
.1111 to p.1t11
,A111 N11
F:puuls tti)tOusiirJ,I Ski }i'til 14 .1^t
110
tit?il4l: S,pJF:pu uollaF ;sut:J_i, S1 it aril tlt lclti aJ3' .:,1 <uclllisa }1 :at# t1c Fits trlk lcit €11
p.irilES4;t4 syi 1 alit ui (7 Icx!„ p :yacuf J31i13: as F,> it-::111 ,lu 313.11: riF?p ar npo;" iue aSn lou Iii" 1!
eit. pattl uintui \put 1c1 �ttlattla' 1.13 �t1a ppe .11^11^! Ipv, ll
u pitpums tit
old su ett:p t:la' a x, 11011tpuo: nine 'tiolltut}ap
t :`rcx INt°
titiist lt::st ll,;adJ
UI 10 i3IUUUC3tU Sloth: lou ti1:55 l3 1^p)
"11,11^11'.111^ .1}3 pJrptiFt
1
S(1} 1
u SHt`i ,lit u1
U! :1�II tOU }i l3
t:inE�a1 .itat ?cl J'tl "tit a +,tin
51,71'1 .1atl10 NI 1^11 a 5C?.td (11.55 i1 ti 5,1355 `s.?tt3l:t s 30 :?a'.lgi i glR {5d t1311uu." tri p3111atUliCilrtt
sAtt ,r.;5u.s putt iit. (1aay ctc,tarsxu5aii35
pun ,:11:1 C '1! pun ;+U4 k:inp 01 5 1? 5111plt(:1,13 'it3sU i p7 :11 5*:)
pull .alt.'! 115;3 Sc)Ut;rl4} 3/X) j) 1:111) ptle .i1s.tiaiut
■17.11 /Nr, at {1 1`110J1,i t`! •ip.tt:n;Pait Ilsalstitll' l itt: it:aitlyaal 'a i ip)?1,j: pu a11:1.id0add
€113 :11^111^ ;n1 pctF: ivaus:aitittt, :••l s.lortesiUi)at13t, pun swafie. sit JattlhAt pun "UIr1UtCtt£ put? ivaulzlictutt l?
:s:5i1!}F.its4:attl11.5 illma it:litt:,j.' 1 ftuiss. uni
�t .71,1 .iiieclipot.tad Jt1 tutta: 1 1 .FiiJtt l F: put; tiaanpaa aa,1041.1a put: utC3U3ein 1^.l}
:11If.} Itlatctcttic) elup }t5 .Ciplt.1.1 71^11 alumxtttt3 tli suoilt:isyat155
10 z, +il idtliddt; 3ir:5uli:p 1t:t1t asn kt09.1 ls J1^lI sautiajalnis put: s xu0,1ua puts ulisitlir.ru apt
'sx).iti is :.1 J11 1 id
01'iCitU,)1;1: tis }t3%1.1 t7titilr n 15}0sAt Pit' tlli:itltt;t '13aiap 01 1:?titil;
pun in•tut,t}antt! .,111^1 ±itt ptir., 4a.tF11) x)Jd putt tiat.11It11I ila:uaicuI 1u i1CJi uc3lua pun utt:lult;tu
iUFillt:lllttl t ?lltp }C lt}1 5 `3.1 pun C ssl u1zuci1 ?it.it:tl3.t put 3t1'
intjti )1 pun ti t1^ mult:il pm! 'az1111n °aps tojt.1
:alt :po.:S\ Put! ,1!111:1 P;SJ'51^);) tt.5:5■■1.511
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lrie of Modifications to 1111S Transaction Standards
bad) ot' the Parties agrees and understands that from lime-to-time. FIF1S may [midi k and set calm pae
Jae s for the HI IS ransaction standarcls, Lich of the Parties agrees to ineirporate by reference into tin'
At4reernent Mich r ChallgeS.
Bus:is; Associate Qhlientions,
A' 'c shall not submit dupl tat rnnsm issions unless so requested by (2:1\c:red Fittily
Business Aso.ci ate shall only tan limn those transaciloils that are fiuthorized Co\ creti Lritity,
urthermore. Business Associate tisstimes all liahilk for any clamag,e, holler direct or inditects to
the electronie data or to Co% (Jed Finny', systems b\ Business A unatithorizo:i
of such transa:.tion,s
Business Associate shall hold 11■ tintity harmless from any claim. loss or damage of u kind.
whether direct or indirect. Whether to person or propert>, arising out of or related to f Business
A,sociate's use .'r unatithorie.cd disclosure of the electronic data; or FT.') Business •ssojate's.
submission of dat.i. including but not limited to the submission of incon intsleading, ineomplere
os fraudulent data
td/ liusiness Associate agrees so maintain adequate back-up n les to recre(ite trailmnissions (II the everil
!hal such recreations become Back-up tapes shall be subject to this Agreement to the
same exen ns orivinal dat:i
ret Rti.iincis Associate agrees to trace lost or indcciphemble tratismissioas and make reasonallic effort
to locate and natislate the same. Business Assolate shall hear all eosts associated ‘k ith the
recreation Of Inc111plete, lost or indecipherable transmissions if such loss k the result oi an :ter or
)i.nissiori of Business Associate.
Business Asso«:I‘ne shall maintain, tbr se\ en (7 year true eopies of tin. source documents from
whieh it prochiees electronic data
f 1 Fxcept encounter data furnished b Business Associate to Co,,ered Entit, Business Associate shall
other than tA V.,'ItTeCt error.,1 ineidif> any data to which it is granted aeccs,s tinder this
Agrement or der new data from such existing data. Ari modification of data is to he recorded.
;Ind a record of such modification is to be retained by Business Associate for a period of sc‘ en CI
ears.
Buisiness Associate shall not disclose sectirit access codes to any third party in an i
without the express written consent of Crnered Filthy. Business Asscieiatc furthermore
ac.knowicdges that Covered Enit na3. stall t'odes at an time .k.iihotri notice. Business
Associate shad assume responsibility for any damages arising fru it- tii:Ncioure of the cettrit
(CSS codes or its failure to prevent an third priri ease of the s) stem W ithout the express v
consent of CoNered Fruity.
Business Associate shall ma n general coverage. melud e. coverage for ifletteral
(.0nitnercial hab Iiiv, fOr a limit f not less than one inillion dollars, as ‘tC I as other rage
Covereci Entit ma require, to compensate any parties damaged by Business Associate's
negligence. Business Associate shall provide evidence of such co‘ erage tu the form of a certificate
of insurance and agrees to notitx Co\ ered and:or 1101 immedintel> of Lilly reduction or
i.(aticellation of ;itch crweragc.
13
Business Associate agrees to conduct testing with Co\ ered Entity to ensure delivery of tiles that are
IIIPAA-AS Compliant and to accommodate Covered Entity's specific business requirements.
1.1 Conficie.ntial and Proprietary Information
to; Proprietor) Information
5. I I ndeni n Cleat ion
Business Associate ackno■vledges that it will have iteess to certain proprietary information used in
Covered Entity's business. Covered Entity's proprietary information derives its commercial value
from the fact that it is not available to competitors or any third parties, and the disclosure of this
information would or could impair Covered Entity's competitive position or otherwise prejudice its
ongoing business. Business Associate agrees to treat as confidential, and shall not use for its own
commercial purpose or any other purpose, Covered Entity's proprietary information. Business
Associate shall safeguard Covered Entity's proprietary information against disclosure except as
may be expressly permitted herein. Such proprietary information includes. but is not limited to,
confidential intOrmation concerning the business operations or practices of Covered Entity,
including specific technology processes or capabilities.
ARFICIE 5
MISCHIANHOL LS
Each Party agrees to indemnify the other for any damages, costs, expenses or liabilities, wcluding legal fees
and costs. arisin s.! from or related to a breach of such Party's obligations hereunder.
5 2 "FeeinandFsmination.
(o) term. The Term of this Agreement shall be effective as or the date first written above, and shall
terminate when all of the PHI provided by Co N ered Entity to Business Associate. or created or
received by Business Associate on behalf of Covered Entity. is destroyed or returned to Covered
Entity, or. if it is infeasible to return or destroy PHI, protections are extended to such information.
in accordance with the termination provisions in this Section.
(b) Termination for Cause. Upon a material breach by Business Associate of it obligation hereunder,
Covered Entity may (i) terminate this Agreement and the Service Agreement: and (ii) report the
iolation to the Secretary.
le) EtTect ofTerminat ion,
(1) Except as provided in paragraph 52(000, upon termination of this Agreement,
for any reason, Business Associate shall return or destroy all PHI received from
Covered Emit), or created or received by Business Associate on behalf of Coveri.rd
Entity. This provision shall apply to P111 that is in ihe possession of subcontractors
or agents of Business Associate. Business Associate shall retain no copies of the
P111.
(ii) In the event that Business Associate determines that returning the PHI is
infeasible. Business Associate shall provide to Covered Entity notification of the
conditions that make retinal or destruction infeasible. Upon Covered Entity's
agreement that return or destruction of PHI is infeasible. Business Associate shall
extend the protections of this Agreement to such PI11 and limit further use and
14
except ti
OF
\u\- contrOt els' or elannn arising out of or reta
.c >rdance %vith the C.=otmnercial Atli
relief as described helps \t
airs Zelil °t.
IZcetrl;Htors References.
re}er nee to bits At ..ttient to ;i >ee
tin it.H=
•i he respective rights and o
I.ntitt: ;tlgxt€ of11,}ailta
Interi:rcta_tictn
disclosures or such "1'I EI tit those purge
infeasible, fOr so long its Mr,iness Ass {,elate maintains such P111,
hat malt the return or destruction
t it i f will be i ed b} uontpulsor."
Rules *t the o €H€c=riean Arbitration Association CAA,
\ot\s rtilstandin>; any wh' or rerncdkc. pr =41 Hded for rn Section 5 Covered Entity retains :111 r; „ttt to stets
it •e relief to prevent the unziuthoriz_ed use e!titis,:losure of P111 h. Business Associate or any agent. cEtntraetor
f tt:srt> th t r� eeit•ed P111 lions Business \s' i<Hte.
'rise Port es #gerLt: t z take such action as is necessary to amend this Agreement
c tc nt nece,.::rs. for ^crier Lntity to eomply a ith the reCltiir'etnent6 of 1!I1'r\:\ at
c:rnendntent n= this :Htrc mint shall ht' kr 40. "THtin g :00 �i ned by both rtie:.
is the section a to ef or a amended.
Irrations of Business Assoc e ;Hnd Covered i.tltite ar €Hcier `sections 4
c t he termination of this Aereement,
tit to nine tir the
regulatit,n<. .'111
\n_ ;ittibiguitg in \grccn cnt ;hall be resolved to permit Covered Emit eomply s+ith the 1
Oilier than liabilities tinder" Section 5.1, neither fart shall be liable ie the other iy anc special_ incidental,
exemplary, punitive or consequential damages aria €1?„ tt it any delay, =rr 's:
electronic transmission or receipt or any information pursuant to this Agreement. es en it the other Par 1 been
advised of the possibility of sue h clatnagc•s.