2007 Technical Support Agreement
@ortivus
Technical Support Agreement ~SO;;R
This Technical Support Agreement ("Agreement") is dated as of June, 2007 by and between
Ortivus, Inc., a Delaware Cqrporation, with offices at 2324 Sweet Parkway Road, Decorah, Iowa
("Ortivus") and C,'(" ,n- 5;", (t,^~ I< S' ,with offices at 1'''' tV 4< I.. r~{_ fer;
, ("Customer"). , t t
I. Definitions
a. The term "Program" shall have the meaning set forth in the Licensing Agreement.
b. "Anniversary Date" shall reler to each anniversary of the Commencement Date.
c. "Commencement Date" shall refer to the date the Program was delivered to Customer.
d. "Licensing Agreement" shall mean the licensing agreement dated
between Ortivus and Customer.
e. "Initial Support Term" shall mean the 12-month period commencing on the
Commencement Date.
f. "Renewal Term" shall mean each 12-month period commencing on the expiration of the
Initial Support Term.
g. "Technical Support" shall mean those maintenance and technical services described in
detail on Schedule A to this Agreement.
h. "Support"when used without a modifier shall mean Technical Support.
II. Affirmation of Licensing Agreement
Customer hereby certifies that it has read, agrees with and hereby reaffirms each ot the terms
and conditions contained in the Licensing Agreement.
III. Technical Support
Subject to the terms and conditions contained herein, during the Initial Support Term and any
applicable Renewal Term, Ortivus shall provide to Customer the Technical Support described in
Schedule A attached hereto. Ortivus' obligations under this Section III with respect to a
Renewal Term are contingent upon Customer's timely making the payments required by
Section IV.1.
IV. Fees and Payment; Renewal of Technical Support
1. Support Fees and Renewal. Customer by purchasing a license to the Program has
already paid for Technical Support for the Initial Support Term. Approximately 60 days
prior to the expiration of the Initial Support Term, Ortivus will invoice Customer for the
upcoming Renewal Term, payable 12 months in advance. Customer may accept
Technical Support for the upcoming Renewal Term by paying Ortivus' invoice in U.S.
Dollars. If Customer fails to pay such invoice prior to the commencement of the Renewal
Term, Ortivus may immediately, notwithstanding Section VI and without further notice to
Customer, terminate and treat this Agreement as terminated.
. 2. Taxes. Support fees and other charges set forth in this' Agreement do not include
applicable taxes. In addition to the fees and charges due Ortivus under this Agreement,
Customer shall remain liable tor and shall pay all local, state, and federal sales, use,
excise, personal'property, or other similar taxes or duties, and all other taxes, which may
now or hereafter be imposed upon this Agreement or possession or use of the Program,
excluding taxes based on Ortivus' income.
IHD0090_20070323
Ortivus Technical Support Agreement
1 of 7
Initials
Ar
V
.. - ~- ~.. - --.--.- _._"--- ------.-. -'''-''-'~''-'-~'-''--'~'''''';-'-~--'-'- '.~~. ~._-----~-~~ ..--.....-"- --~---~~......;..._----.. _ .}!
IV ,
@ortivus
'~
V. Warranties and Limitations of Liability
1. Limited Performance Warranty. Ortivus warrants that it will use its reasonable best
efforts to ensure that any Support it provides will be performed in a professional and
workmanlike manner. Ortivus agrees to use reasonable efforts to correct any error or
defect in its provision of Support under this Agreement. The foregoing warranty and
remedy do not expand or extend any limited warranties relating to the Program set forth
in the relevant License Agreement. THE PROVISIONS OF THIS SECTION SET FORTH
THE ENTIRE LIABILITY OF ORTIVUS AND THE SOLE REMEDIES OF CUSTOMER
WITH RESPECT TO ORTIVUS' BREACH OF ITS OBLIGATIONS UNDER THIS
AGREEMENT.
2. Disclaimer of Other Warranties. EXCEPT AS EXPRESSLY PROVIDED IN THIS
SECTION, ALL WARRANTIES, CONDITIONS, REPRESENTATIONS, INDEMNITIES,
AND GUARANTEES, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW,
CUSTOM, PRIOR ORAL, OR WRITTEN STATEMENTS OR OTHERWISE, INCLUDING
BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILlTIY, TITLE, THE
CONDITION OF ANY PRODUCT OR SERVICES, OR FITNESS FOR A PARTICULAR
PURPOSE, ARE HEREBY EXPRESSLY DISCLAIMED AND EXCLUDED.
3. No Consequential Damages. TO THE MAXIMUM EXTENT PERMITTED BY
APPLICABLE LAW, IN NO EVENT SHALL ORTIVUS OR ITS SUPPLIERS BE LIABLE
TO CUSTOMER FOR ANY CONSEQUENTIAL, INCIDENTAL, DIRECT, INDIRECT,
SPECIAL, PUNITIVE, OR OTHER DAMAGES WHATSOEVER (INCLUDING, WITHOUT
LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS
INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY
LOSS) ARISING OUT OF THIS AGREEMENT OR THE USE OF OR INABILITY TO
USE THE PROGRAM, EVEN IF ORTIVUS HAD BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
4. Additional Limitation of Liability. IN NO EVENT SHALL ORTIVUS' TOTAL
CUMULATIVE LIABILITY HEREUNDER, FROM ALL CAUSES OF ACTION OF ANY
KIND, WHETHER ARISING UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE),
STRICT LIABILITY, BREACH OF WARRANTY OR OTHERWISE, EXCEED THE
TOTAL AMOUNT PAID BY CUSTOMER FOR THE TECHNICAL SUPPORT
PROVIDED UNDER THIS AGREEMENT.
VI. Termination
Subject to Section IV, if either party defaults in performing any material obligations required under
this Agreement, the non-defaulting party may give written notice of its intention to terminate this
Agreement, describing in reasonable detail the default. If the defaulting party fails to remedy such
material default within thirty (30) days following such written notice, or if such default is not
capable of cure within such thirty (30)-day period, and the defaulting party fails to commence cure
procedures within. such thirty (30)-day period and diligently prosecute such procedures until the
default is cured, then the non-defaulting party may terminate this Agreement.
VII. Business Associate Assurances
In the event that Ortivus is deemed to be a "Business Associate" of Customer, and Customer is
a "Covered. Entity," as those terms are defined in 45 C.F.R. S 160.103, Ortivus shall, effective
on or after April 14, 2003, or such other implementation date established by law, carry out its
obligations under this Agreement in material compliance with the regulations published at 65
IHD0090_20070323
Ortivus Technical Support Agreement
2 of 7
Initials
jJY
_.,~_._..,,_ ,~",~"",~"-"~_",~_,,,,,,~__~"_ _,,_ '.,~,,_,u"_'_'~.,___.........
"~'--''''''~''''''-''''''''''_'''''-''''~'__'_____.'-''~...,.-c___.___..~___._..:_"'~_~'__"__'''_'.
.-_..-'-:....--.~.~.---_,_..:;....:......:_. _.,~.31i
{~
.,'
(i) ortivus
Federal Register 82462 (December 28, 2000) (the "Privacy Regulations") pursuant to Public
Law 104-191 of August 21, 1996, known as the Health Insurance Portability and Accountability
Act of 1996, Subtitle F - Administrative Simplification, Sections 261, et seq., as amended
("HtPAA"), to protect the privacy of any personally identifiable, protected health information
("PHI") that is collected, processed or learned in connection with the Technical Support
services set forth in Schedule A hereto. In conformity therewith, Ortivus agrees that it will use
its reasonable best efforts to:
. Not use or further disclose PHI except: (i) as permitted under this Agreement
(that is, for those activities specified in Schedule A hereto; and related
administrative1unctions pertaining to these activities); (ii) as required for the
proper management and administration of Ortivus in its capacity as a HIPAA
Business Associate of Customer, in the event Ortivus is deemed to be a
Business Associate of Customer for these specified purposes; or (iii) as
required by law;
. Use appropriate reasonable safeguards to prevent use or disclosure of PHI
except as permitted by this Agreement;
. Report to Customer any use or disclosure of PHI not provided for by this
Agreement of which Ortivus becomes aware;
. Ensure that any agents or subcontractors to whom Ortivus provides PHI, or
who have access to PHI, agree to the same restrictions and conditions that
apply to Ortivus with respect to such PHI;
. Make PHI available to the individual who has a right of access as required
under HIPAA in the event Ortivus maintains any PHI in a designated record
set as defined by 45 C.F.R S 164.501;
. Make available for amendment and incorporate any amendments to PHI
when notified to do so by Customer in the event that Ortivus maintains any
PHI in a designated record set as defined by 45 C.F.R. S 164.501;
. Make available to Customer the information required to provide an
accounting of the disclosures of PHI, if any, made by Ortivus on Customer's
behalf, provided such disclosures are of the type for which an accounting
must be made under the Privacy Regulations;
. Make its internal practices, books and records relating to the use and
disclosure of Customer's PHI available to the Secretary of the Department of
Health and Human Services for purposes of determining Customer's
compliance with HIPAA and the Privacy Regulations; and
. At the termination of this Agreement, return or destroy all PHI received from,
or created or received by Ortivus on behalf of Customer. In the event the
return or destruction of such PHI is infeasible, Ortivus' obligations under this
section VII shall continue in force and effect so long as Ortivus possesses
any PHI, notwithstanding the termination of this Agreement for any reason.
Notwithstanding any provisions of this Agreement to the contrary, Customer may
terminate this Agreement if Customer reasonably determines that Ortivus has violated a
material term of this Agreement with respect to its functions as a Business Associate.
lHD0090_20070323
Ortivus Technical Support Agreement
3 of 7
Initials Jfl'
.,-.----~.~~._:_..--'-...--.-~--.........--~,....~-'---'--'--'---"'-----..-........-~'"_._...,,,._.~_.___._..c;.,.._...,"_._~..,_.._ ~~'___'_'.""'.'___.""__"_"'. _'M__'_~_M_' ~._.. ,_. '> ~
~. '..
69 ortivus
, ,~
VIII. Business Associate Security Assurances
WHEREAS, certain federal regulations at 45 CFR, Part 164, Subpart C, entitled "Security
Standards for the Protection of Electronic Protected Health Information" and certain definitions
in reiation thereto at 45 CFR Part 160, 162 and 164 (collectively, the "Security Rule") have
been duly promulgated and adopted and take effect (except for "smaii health plans") on Aprii
20,2005; and
NOW, THEREFORE, in consideration of the foregoing premises, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the
Parties agree as foiiows:
A. If Business Associate creates, receives, maintains, or transmits any Electronic Protected
Health Information on Covered Entity's behalf, Business Associate shall:
1. Implement administrative, physical, and technical safeguards that reasonably
and appropriately protect the confidentiality, integrity, and availability of the
Electronic Protected health Information that it creates, receives, maintains, or
transmits on behalf of Covered Entity as required by the Security Rule: and
2. Ensure that any agent, including a subcontractor, to whom it provides such
information agrees to implement reasonable and appropriate safeguards to
.protect it; and
3. Promptly report to Covered Entity any Security Incident of which it becomes
aware.
B. Covered Entity may terminate any and aii agreements under which Business Associate
creates, receives, maintains, or transmits any Electronic Protected Health Information on
behalf of Covered Entity if Covered Entity reasonably determines that Business Associate
has violated a material term hereof. Such termination shaii be in accordance with the
procedures set forth in Section VII.
C. Section VIII shall take effect on date which is the later of: (a) the date executed by the
last Party to execute this Section; or (b) April 20, 2005.
D. Aii other terms and provisions of Section VII shaii remain in fuii force and effect.
IX. General
1) Entire Agreement. This Agreement and the License Agreement constitute the entire
agreement between the parties with respect to the subject matter hereof, and aii prior
agreements, representations, and statements with respect to such subject matter are
superseded hereby. This Agreement may not be altered, modified, amended, changed,
rescinded, or discharged in whole or in part, except by written agreement executed by
both Customer and Ortivus.
2) Assignment. This Agreement may not be assigned by Customer without the prior written
consent from Ortivus and any attempt to do so without Ortivus' permission shaii be void.
3) Force Majeure. Notwithstanding any1hing to the contrary in this Agreement, no default,
delay or failure to perform on the part of either party shaii be considered a breach of this
Agreement (other than nonpayment of money or breach of confidentiality provisions) if
fHD0090_20070323
Ortivus Technical Support Agreement
4 of 7
Initials ,.r
"
'<,
..-.--.--.---.....-..~.-.-------,...".-.;... ,...........,~.,~~._.....__._,."..._,.,,"",'_c.,...,,_.__....._..._. .,_._._"..__.~_--,;&
.'
,
@ortivus
such default, delay or failure to perform is shown to be due entirely to causes beyond
reasonable control of the party charged with a default, including, but not limited to,
causes such as strikes, lock-outs or other labor disputes, riots, civil disturbances, actions
or. inactions of governmental authorities or suppliers, epidemics, war, embargoes, severe
weather, fire, earthquakes, acts of God or the public enemy, or nuclear disasters.
4) Governing Law. The validity and performance of this Agreement shall be governed by
and construed in accordance with the laws of the Commonwealth of Pennsylvania,
excluding that body of law applicable to choice of law.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date set
forth above.
Ortivus, Inc.
By:
custome~
BY:~ ./
Print Name: (l,").'M )/FJk... 1-
Title: P'f'c3t"r- ...4- f<^""G-~
Print Name: Teresa L Ruroden
Title: Vice President of Operations
Ortivus, Inc.
2324 Sweet Parkway Road
Decorah,lowa'S2101
Customer
Site Address: '}60 t.()
f" {_c. lc'i
A-d.
I~ "7""(61
Please help us provide the best support possible by answering these five questions:
1. Are you satisfied with the support that you receive from Ortiv-us?
2. If you could make one change to Ortivus support, what would it be?
3. Are you satisfied with your Ortivus products?
4. Which modules do you have that you couldn't 'live' without?
5. How often do you visit the Ortivus Support websife?
IHD0090_20060826
Ortivus Technical Support Agreement
5 of?
------~~.----. --.- -.--.- '-'--~''''"''''-'--~~---'''''''''~~''-'''''''''''''--'''''''''''-~''''-........._~.._-._____.i:l
..
..1
I
cgortivus
.
,
Schedule A
This Schedule describes the terms and conditions relating to Technical Support that Ortivus
provide to Customer during the Initial Support Term and any Renewal Terms. The Technical
Support Agreement described into this Schedule does not expand on or change the Program
warranty provisions set forth in the License Agreement.
Product Updates:
Some Ortivus products utilize underlying data that is sourced from third parties and is unique per
customer. This data may have been provided with the program by Ortivus, or may have been
sourced independently. Updates or changes to this underlying data are not included in product
updates. From time to time Ortivus may develop permanent fixes or solutions to known problems
or bugs in the Program and incorporate them in a formal "Update" to the Program. If Customer is
receiving Technical Support from Ortivus on the general release date for an Update and is not in
breach of the Technical Support Agreement, Ortivus will provide the Customer with the Update
and related documentation, both at no additional charge to the Customer for the update. The
customer will be charged for shipping and handling if an update CD is requested and an
alternative electronic download method is available.
Technical Support Services:
Telephone Assistance for Sweet-CAD, Sweet-Billing and Sweet-Field Data. Customer will be
given the telephone number for Ortivus' support line and will be entitled to contact the support line
during normal operating hours, (between 8:00 a.m. and 5 p.m. U.S. Central Standard Time) on
regular business days, excluding Ortivus holidays, to consult with Ortivus Technical Support staff
concerning problem resolution, bug reporting, documentation clarification, and general technical
guidance. Assistance may include communicating via pcAnywhere, modem, or a website
collaboration tool.
Sweet-CAD Extended Support. Emergency after hours support is available and should be
contacted outside of normal business hours when the dispatching of ambulances is being
disrupted by a malfunction of CAD. After-hours support information will be provided to the
Dispatch Supervisor at the time of training.
Web Site Support. Online support is available 24 hours per day, offering Customer the ability to
resolve its own problems with access to Ortivus' most current information. Customer will need to
enter its designated user name and password to gain access to the technical support areas on
Ortivus' Web site. Ortivus' technical support areas allow Customer to: (i) search an up-to-date
knowledge-base of technical support information, technical tips, and featured functions; (Ii)
access answers to frequently asked questions (FAQ); and (iii) access current program releases
and documentation.
Software Problem Reporting. Customer may submit to Ortivus requests identifying potential
problems in the Program. Requests should be in writing and directed to Ortivus bye-mail or FAX.
Ortivus retains the right to determine in its sole discretion the final disposition of all requests, and.
will inform Customer of the disposition of each request. If Ortivus decides in its sole judgment to
act upon a request, it will do so by providing a bug fix as described above.
IHD0090_20060826
Ortivus Technical Support Agreement
6 of 7
Initials
.,--~., ----_.~-~_._~---_._-----.~---,._-~..._--_.._----
'"""""'-.'-..._t~~.;....;..;..:.;..~-_'-.._:...:.:..__,__:,_;~_~,,:,,,._ .,._.........:..;.__m.~
~ ,::ij,"
>
,
6f) ortivus
Exclusions from Technical Support Services:
Ortivus shall have no support obligations with respect to any hardware or software product
("Nonqualified Products") other than the Program. If Ortivus provides support services for a
problem caused by a Nonqualified Product, or if Ortivus service efforts are increased as a result
of a Nonqualified Product, Ortivus will charge time and materials for extra service at its current
published rates for custom software services. If, in Ortivus' sole opinion, performance of
Technical Support is made more difficult or impaired because of Nonqualified Products, Ortivus
shall so notify Customer, and Customer will immediately remove the Nonqualified Product at its
own risk and expense during any efforts to render Technical Support under this Agreement.
Customer shall be solely responsible for the compatibility and functioning of Nonqualified
Products with the Program. Underlying data used by the program, such as map data, is not
considered part of the program. Changes or additions to the underlying data, whether this data
was provided by Ortivus or by another source, are not covered by this agreement. Ortivus will
charge time and materials for extra service at its current published ratesJor custom software
services.
Customer Responsibilities:
In connection with Ortivus' provision of Technical Support as described in this Exhibit, Customer
acknowledges that Customer has the responsibility to do each of the following:
1) Maintain the designated computer system and associated peripheral equipment in good
working order in accordance with the manufacturers' specifications, and ensure that any
problems reported to Ortivus are not due to hardware malfunction;
2) Maintain the designated computer system at the latest code revision level deemed
necessary by Ortivus for proper operation of the Program;
3) Supply Ortivus with access to and use of all information and facilities determined to be
necessary by Ortivus to render the Technical Support described in this Exhibit;
4) Perform any test or procedures recommended by Ortivus for the purpose of identifying
and/or resolving any problems;
5) Maintain a procedure external to the Program for reconstruction of lost or altered files,
data, programs to the extent deemed necessary by Customer;
6) At all times follow routine operator procedures as specified in the Documentation;
7) Remain solely responsible at all times for the safeguarding of Customer's proprietary,
confidential, and classified information; and .
8) Ensure that the designated computer system is isolated from any process links or
anything else that could cause harm before requesting or receiving remote support
assistance.
Definitions of 45 C. F.R. 3 160.103
Individually identifiable health information is information that is a subset of health
information, including demographic information collected from an individual, and:
1) Is created or received by a health care provider, health plan, employer, or health care
clearinghouse; and
2) Relates to the past, present, or future physical or mental health or condition of an
individual; the provision of health care to an individual; or the past, present, or future
payment for the provision of health care to an individual; and
(I) That identifies the individual; or
(Ii) With respect to which there is a reasonable basis to believe the
information can be used to identify the individual.
IHD0090_20060826
Ortivus Technical Support Agreement
7 of 7
Initials ~