2005 Technical Support Agreement (2)
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Ortivus, INC.
TECHNICAL SUPPORT AGREEMENT
This Technical Support Agreement ("Agreement") is dated as of June, 2005 by and between
Ortivus, Inc., d/b/a, Ortivus North America, a Delaware Corporation with offices at 2324 Sweet
Parkway Road, Decorah, Iowa (nOrtivus North American) and
. with offices at , ("Customer").
I. Definitions
a. The term "Program" shall have the meaning set forth in the Licensing Agreement.
b. "Anniversary Date" shall refer 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 North America 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 of 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 North America shall provide to Customer the Technical
Support described in Schedule A attached hereto. Ortivus North America's 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 North America 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 North
America's invoice in U.S. Dollars. If Customer fails to pay such invoice prior to the
commencement of the Renewal Term, Ortivus North America 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 North America under
this Agreement, Customer shall remain liable for 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 North America's income.
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V. Warranties and Limitations of Liability
1. Limited Peñormance Warranty. Ortivus North America 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 North America 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 NORTH AMERICA AND
THE SOLE REMEDIES OF CUSTOMER WITH RESPECT TO ORTIVUS NORTH
AMERICA'S 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 MERCHANTABILITIY, 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 NORTH AMERICA 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 NORTH AMERICA HAD
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
4. Additional Limitation of Liability. IN NO EVENT SHALL ORTIVUS NORTH
AMERICA'S 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 North America 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. § 160.103, Ortivus
North America 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 Federal Register 82462 (December 28, 2000) (the "Privacy
Regulations") pursuant to Public Law 104-191 of August 21, 1996, known as the Health
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Insurance Portability and Accountability Act of 1996, Subtitle F - Administrative Simplification,
Sections 261, et seq., as amended ("HIPAA'), 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 North America 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
administrative functions pertaining to these activities); (ii) as required for the
proper management and administration of Ortivus North America in its
capacity as a HIPAA Business Associate of Customer, in the event Ortivus
North America 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 North America becomes aware;
.
Ensure that any agents or subcontractors to whom Ortivus North America
provides PHI, orwho have access to PHI, agree to the same restrictions and
conditions that apply to Ortivus North America 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 North America maintains any PHI in a
designated record set as defined by 45 C.F.R. § 164.501;
.
Make available for amendment and incorporate any amendments to PHI
when notified to do so by Customer in the event that Ortivus North America
maintains any PHI in a designated record set as defined by 45 C.F.R. §
164.501; .
.
Make available to Customer the information required to provide an
accounting of the disclosures of PHI, if any, made by Ortivus North America
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 North America on behalf of Customer. In
the event the return or destruction of such PHI is infeasible, Ortivus North
America's obligations under this section VII shall continue in force and effect
so long as Ortivus North America 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 determines that Ortivus North America has
violated a material term of this Agreement with respect to its functions as a
Business Associate.
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VIII. Security Agreement
WHEREAS, certain federal regulations at 42 C.F.R., Part 164, Subpart C, entitled "Security
Standards for the Protection of Electronic Protected Health Information" and certain definitions
in relation thereto at 42 C.F.R. Part 160, 162 and 164 (collectively, the "Security Rule") have
been duly promulgated and adopted and take effect (except for "small health plans") on April
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 follows:
A. Capitalized terms used herein and not otherwise defined shall have the meanings given
to such terms in the HIPAA Agreement or in the Security Rule.
B. 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.
C. Covered Entity may terminate any and all agreements under which Business Associate
creates, receives, maintains, or transmits any Electronic Protected Health Information on
behalf of Covered Entity if Covered Entity determines that Business Associate has
violated a material term hereof. Such termination shall be in accordance with the
procedures set forth in the HIPAA Agreement.
D. This Amendment shall take effect on date which is the later of: (a) the date executed by
the last Party to execute this Amendment; or (b) April 20, 2005.
E. All other terms and provisions of the HIPAA Agreement shall remain in full 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 all 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 North America.
2) Assignment. This Agreement may not be assigned by Customer without the prior written
consent from Ortivus North America and any attempt to do so without Ortivus North
America's permission shall be void.
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3) Force Majeure. Notwithstanding anything to the contrary in this Agreement, no default,
delay or failure to perform on the part of either party shall be considered a breach of this
Agreement (other than nonpayment of money or breach of confidentiality provisions) if
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., d/b/a
Ortivus North America, a Delaware Corporation
By:
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By: . 7-...
Print Name: P-o)JA4r'"I r ~A...
Title: ;u.~¿;t-¿,.. ~?
Customer \i'-
Site Address: 300 itl. Ji:r t.... ~ ( ,
f'".::;,(--, 1«5 C?'-('I
Print Name: Teresa L. Ruroden
Title: Vice President of Operations
Ortivus, Inc. d/b/a
Ortivus North America
2324 Sweet Parkway Road
Decorah, Iowa 52101
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Schedule A
This Schedule describes the terms and conditions relating to Technical Support that Ortivus North
America 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:
From time to time Ortivus North America 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 North America on the general release date
for an Update and is not in breach of the Technical Support Agreement, Ortivus North America
will provide the Customer with the Update and related documentation, both at no additional
charge to the Customer.
Technical Support Services:
Telephone Assistance for Sweet-CAD, Sweet-Billing and Sweet-Field Data. Customer will be
given the telephone number for Ortivus North America's 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 North America holidays, to
consult with Ortivus North America Technical Support staff concerning problem resolution, bug
reporting, documentation clarification, and general technical guidance. Assistance may include
communicating via pcAnywhere, modem, or electronic bulletin board.
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 hour 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 Ortivus North America's most current information.
Customer will need to enter its designated user name and password to gain access to the
technical support areas on Ortivus North America's Web site. Ortivus North America's 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 (FAa); and (iii) access current program releases and documentation.
Software Problem Reporting. Customer may submit to Ortivus North America requests
identifying potential problems in the Program. Requests should be in writing and directed to
Ortivus North America bye-mail or FAX. Ortivus North America 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 North America decides in its sole judgment to act upon a request, it will
do so by providing a bug fix as described above.
Exclusions from Technical Support Services:
Ortivus North America shall have no support obligations with respect to any hardware or software
product ("Nonqualified Products") other than the Program. If Ortivus North America provides
support services for a problem caused by a Nonqualified Product, or if Ortivus North America
service efforts are increased as a result of a Nonqualified Product, Ortivus North America will
charge time and materials for extra service at its current published rates for custom software
services. If, in Ortivus North America's sole opinion, performance of Technical Support is made
more difficult or impaired because of Nonqualified Products, Ortivus North America shall so notify
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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.
Customer Responsibilities:
In connection with Ortivus North America's 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 North America are not due to hardware malfunction;
2) Maintain the designated computer system at the latest code revision level deemed
necessary by Ortivus North America for proper operation of the Program;
3) Supply Ortivus North America with access to and use of all information and facilities
determined to be necessary by Ortivus North America to render the Technical Support
described in this Exhibit;
4) Perform any test or procedures recommended by Ortivus North America 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. § 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.
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