HomeMy Public PortalAbout045-2011 - ems Charts Inc.emsCharts SERVICE AGREEMENT
THIS AGREEMENT (the "Agreement") effective /mod ldj lP, 2�, is made and entered
into by and between City of Richmond, IN ("Customer") and the erdsCharts, Inc ("Vendor"), a
Pennsylvania corporation.
WHEREAS, Vendor has established and operates a proprietary web -based computer patient
charting system ("emsCharts"), that allows customers to create, maintain, access, manage and report
information related to emergency medical care transport and other medical services; mobile data
collection software for Pocket PC PDAs (emsCharts Pocket), and mobile data collection software for
laptop and tablet computers (emsCharts Mobile) that allows onsite patient data collection.
WHEREAS, Customer desires to utilize these software products to assist in creating,
maintaining, accessing, managing and reporting pre -hospital medical and operational information;
NOW, THEREFORE, Customer and Vendor agree as follows:
1. SERVICES PROVIDED BY VENDOR
1.1 Website. Customer and its authorized users (as defined and limited in Section 3.2 of
this Agreement) shall be given access to the emsCharts website at all times except when unavailable
due to upgrades or repairs/maintenance. The website shall provide Customer and its authorized
users access to a proprietary computerized system for data input, manipulation and standard report
generation per Vendor specifications.
1.2 Modifications/Customizations. Customer accepts emsCharts, emsCharts Pocket, and
emsCharts Mobile with the standard functionality, reports, and queries existing at the time of
purchase. If Customer requests custom functions, reports or queries, Vendor will advise Customer if
such enhancements are currently being developed or will be placed on a future development list. If
at that time Vendor does not plan to develop the enhancements as part of product standard features,
Customer and Vendor may agree that Vendor will provide the enhancements for a development fee.
No work on a Customer -requested enhancement will be undertaken unless Customer agrees in
writing in advance to the scope and estimated cost of the enhancement. All enhancements, including
all enhancements requested and paid for by Customer, shall become the property of Vendor and may
be incorporated into versions made available to other customers.
1.3 Documentation and Trainin . Vendor shall supply Customer with user manuals
containing specifications and instructions. Vendor shall also provide Customer and its authorized
users phone and web -based administrative support and configuration training during the fast month
following Customer's first use of Vendor's products.
1.3.1 On -site training can be provided on : a time and expense basis per mutual
agreement of Customer and Vendor.
1.4 Customer Support. General phone support is available during Vendor regular
business hours. Emergency phone support is available 24 hours per day, 7 days per week, through a
designated communication center.
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emsCharts SERVICE AGREEMENT
1.5 Project Manager. Vendor shall appoint a project manager who shall consult regularly
with Customer's designated representative to facilitate the performance of this Agreement.
1.6 System Performance and Maintenance. System performance and maintenance shall
be subject to the "Service Levels and Maintenance Guidelines" set forth in Attachment A.
1.7 State Reporting. If requested in writing by Customer, Vendor shall provide a means
of collecting and transmitting Customer's pre -hospital data to any state regulatory body or designee
in compliance with reasonable state regulations and requirements.
2. CUSTOMER OBLIGATIONS
2.1 Hardware and Software. For each workstation from which Customer desires access
to emsCharts, Customer shall provide and install at its own expense hardware and software meeting
the specifications set forth in the User Manual.
2.2 Internet Access. Customer shall be responsible for obtaining and paying for physical
connections of the computers to the Internet.
2.3 Upgrades. Customer shall be responsible to purchase and/or install any upgrades to
hardware or software necessary to access future versions of emsCharts, emsCharts Pocket, and
emsCharts Mobile. Vendor agrees to provide Customer with at least six (6) months notice of any
changes that may require modifications to Customer's hardware or software.
2.4 Customer Representative. Customer shall designate a representative of Customer
("Customer Representative") to communicate with Vendor's project manager to facilitate the
performance of this Agreement.
3. LICENSE AND RESTRICTIONS ON USE
3.1 Grant of License. Upon receipt of applicable Service Fees and subject to the terms of
this Agreement, Vendor grants to Customer a non-exclusive, non -transferable, limited license to
access and use emsCharts only in the following manner: (a) by Customer and its authorized users
remotely accessing the emsCharts website; (b) for bona fide purposes relating to the input,
manipulation and reporting of patient, other clinical and operational data created and modified by
Customer and its authorized users, and for no other purposes; (c) during the Term.
3.2 Authorized Users.
3.2.1 Vendor shall give administrative rights to the Customer Representative or
other Customer designee to establish user passwords for persons and entities Customer
authorizes to input and/or access its data ("authorized users"). Customer shall have
exclusive control over the designation of authorized users. Customer and its authorized users
are responsible for maintaining the confidentiality of all passwords.
3.2.2 Customer is responsible to assure that its authorized users comply with the
limitations of use set forth in Sections 3.2, 4.1, 4.2 and 4.3 of this Agreement and to enter
into any confidentiality agreement(s) with its authorized users that may be required by the
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emsCharts SERVICE AGREEMENT
Health Insurance Portability and Accountability Act of 1996 ("HIPAA") or other federal or
state law.
3.2.3 In no event shall Customer or any authorized user knowingly allow access to
emsCharts by any unauthorized user or by any person or entity who/that makes, markets,
distributes or has any ownership or other economic interest in any service or product that
would compete with the service(s) and product(s) provided under the terms of this
Agreement.
4. DATA
4.1 Ownership of Data. All data entered by Customer shall be considered the property of
Customer and shall be kept confidential by Vendor.
4.2 Access to Data. Only Customer and its authorized users may access Customer data.
Vendor shall not be responsible for the unauthorized, illegal, or improper dissemination or use of
data by Customer or its authorized users.
4.3 Protected Health Information. It is recognized by the parties that data entered by
Customer and its authorized users will include "Protected Health Information" as that term is defined
in HIPAA regulations at 45 CFR § 164.501. Vendor agrees to comply with applicable provisions of
HIPAA.as more fully set forth in the attached BusinessAssociate Agreement.
4.3.1 Vendor represents that its software, database, servers and communication
protocols and procedures, when properly utilized in accordance with this
Agreement and emsCharts' User Manual, meet the security standards
established by HIPAA for the protection of Protected Health Information.
4.4 Transfer and Removal of Data. Upon termination of this Agreement by either party
for any reason, or at any time requested by Customer in writing during the Term of this Agreement,
Vendor shall transfer all data to Customer within thirty (30) days in a mutually agreed format. If
Customer and Vendor cannot agree upon a format within thirty (30) days, Vendor shall have the
right to transfer or store Customer's data in a generally accepted format. After termination and
transfer of data to Customer, or at any other time requested by Customer, Vendor shall remove any
and all Customer data from its servers unless such removal would violate a court order, law,
regulation or other legal prohibition.
5. FEES
5.1 Monthly Access Fees. Customer agrees to pay the fees set forth in the attached
emsCharts Price Quote (herein referred to as Attachment C), based upon the volume of Customer's
patient charts. Customer agrees to make full payment within 30 days of the date of invoice and pay
reasonable interest on any balance not paid within 30 days, except when the balance is subject to
reasonable challenge by Customer made in good faith. If a good faith challenge is made by
Customer as to a portion of the invoice, the remainder of the invoice shall be paid in accordance with
the provisions of this paragraph and subject to the interest provisions. Once Vendor has responded
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emsCharts SERVICE AGREEMENT
in writing to Customer concerning any challenge to an invoice, interest will accrue as to any amount
that Vendor identifies in writing as being due and owing by Customer.
5.2 Other Charges/Costs. Customer is responsible for and shall pay all Internet
connectivity and service charges and all other costs associated with obtaining and maintaining the
required hardware and software as specified in the User Manual.
6. Vendor's PROTECTED PROPERTY
6.1 No Transfer of Rights. All title and applicable common law and statutory rights in
and to emsCharts, emsCharts Pocket, and emsCharts Mobile including, but not limited to, rights in
confidential and trade secret material, Screen Shots, Screen Layouts, business logic, source code,
object code, user manuals, specifications, trademarks, service marks, logos, patents and copyrights,
if any, and all derivative works therein shall, as between Customer and Vendor, be and remain the
property of Vendor, and Customer will have no right, title or interest in any such property
("Vendor's Protected Property").
6.2 Forbidden Acts. Customer agrees not to copy, distribute, sell, reproduce, alter,
enhance, modify, and reverse engineer or use for any purpose other than the legitimate purposes
authorized by this Agreement, any Vendor Protected Property. Customer also agrees not to develop
comparable or competitive products.
6.3 Acts Allowed by Licensee. Notwithstanding the above, in the exercise of the rights
and license granted hereunder, Customer may print or download management reports and forms
from emsCharts, provided that Customer keeps intact all copyright and other proprietary notices.
6.4 Acknowledgement of Rights. Customer acknowledges that Vendor's property rights
in and to emsCharts, emsCharts Pocket, and emsCharts Mobile are valuable and unique and that such
property rights are protected. Customer also acknowledges that it will preserve and protect the
confidentiality of these products. In protecting the confidentiality of emsCharts, emsCharts Pocket,
and emsCharts Mobile, customer shall, at a minimum, exercise the same degree of care and take the
same actions that Customer exercises and takes with regard to the preservation and protection of its
own confidential information and proprietary rights, but not less than a reasonable degree of care.
Furthermore, Customer acknowledges that Vendor will suffer irreparable harm if any of the terms of
this Agreement relating to protection of Vendor's interest in emsCharts, emsCharts Pocket, and
emsCharts Mobile are breached, and that monetary damages will be inadequate to compensate
Vendor for such a breach.
7. TERM AND TERNIINATION
7.1 Term. This Agreement shall be considered effective as of the date first written above
(the "Effective Date") and shall continue in effect until terminated pursuant to the terms of this
Agreement.
7.2 Termination Without Cause. At any time after the Effective Date, Customer shall
have the right to terminate this Agreement for any reason or no reason upon thirty (30) days written
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emsCharts SERVICE AGREEMENT
notice to Vendor and Vendor shall have the right to terminate for any reason or no reason upon one
hundred eighty (180) days written notice to Customer.
7.3 Termination For Cause. Either party may terminate this Agreement upon thirty (30)
days written notice if the other parry is in default of any material term of this Agreement. A party
shall be in default of any material term if it has failed to comply with such term for at least thirty
(30) days after receipt of a written description of the failure by the other party_
7.4 Termination of Product: At any time after the Effective Date, Vendor shall have the
right to terminate its involvement with or discontinue marketing and/or maintaining emsCharts,
emsCharts Pocket, and emsCharts Mobile software. Under such circumstances, Vendor will use its
best efforts to give Customer not less than one hundred eighty (180) days prior written notice of
termination of this Agreement and to either find alternate means of providing the same or similar
services to Customer or to provide any source code necessary for Customer to create software or
transfer or download data to another software product that can produce similar functionality for
Customer. The provisions of such source code for the limited purposes set forth in this paragraph
shall not transfer to Customer any ownership interest in the source code and shall not affect
Vendor's ownership rights in the source code and emsCharts, emsCharts Pocket, and emsCharts
Mobile.
7.5 Termination of License. Upon termination of this Agreement for any reason,
Customer's license to access and use emsCharts, emsCharts Pocket, emsCharts Mobile and the right
or authority of any other users designated or authorized by Customer to access and use emsCharts
shall cease immediately. Thereafter, neither Customer nor any user designated or authorized by
Customer shall access or use emsCharts for any reason or purpose without the express written
authorization of Vendor:
7.6 Survival after Termination. The obligations, limitations and restrictions set forth in
Sections 4.1, 4.2, 4.3, 4.4, 5, 6.1, 6.2, 6A, 7.4, 7.5, 9.1, 9.2, 9.3, 9.4, 10.1,10.2, 10.3 and 10.4 of this
Agreement shall survive any termination of this Agreement.
8. WARRANTIES
8.1 Limited Warranty. Vendor represents and warrants that:
(a) it is a corporation in good standing under the laws of Pennsylvania with full
authority to execute and perform this Agreement; and
(b) emsCharts, emsCharts Pocket, and emsCharts Mobile will perform in
accordance with the specifications provided as part of the User Manual and in
accordance with the Maintenance and Service Level Guidelines set forth in
Attachment A.
8.1.1 This limited warranty shall not apply if Customer has not complied with all
the requirements of this Agreement, including the hardware and software requirements set
forth in the User Manual:
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emsCharts SERVICE AGREEMENT
8.2 No Other Warranties. THE LIMITED WARRANTIES CONTAINED IN THIS
SECTION ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED
(WHETHER ARISING BY COURSE OF DEALING, PERFORMANCE, CUSTOM, USAGE
IN THE TRADE OR PROFESSION, OR OTHERWISE), INCLUDING, BUT NOT LIMITED
TO ANY WARRANTY OF MERCHANTABILITY, OR WARRANTY OF FITNESS FOR A
PARTICULAR PURPOSE.
8.3 No Oral or Conflicting Warranties. No Vendor employee or representative is
authorized to make any promise or warranty to Customer that differs from or adds to the warranties
set forth in this Agreement, and no such promise or warranty shall be effective unless set forth in
writing and signed by an officer of Vendor.
9. DAMAGES LIABILITY LEGAL REMEDIES
9.1 Limitation of Liability. Notwithstanding anything in this Agreement to the contrary,
in no event shall Vendor (or any member, officer, employee, agent or other representative) have
obligations or liability to Customer or any other person for loss of profits, loss of use, loss of good
will, or incidental, special or consequential damages or costs associated therewith, whether based in
contract, tort, strict liability, or any other theory or form of action arising out of or in connection with
any service, product, act, inaction, duty, warranty, promise, obligation or representation of Vendor
(or any.member, officer, employee, agent or other representative), even if Vendor has been advised
of, knew,or should have known of the possibility thereof.
9.2 Limitation of Damages. Damages for non-performance are limited to the damages set
forth in Attachment A. If for any reason it is determined that Vendor is liable to Customer for
money damages, in no event shall the liability of Vendor (or any member, officer, employee, agent
or other representative) in connection with any loss of data, service, product, act, inaction, duty,
warranty, promise, obligation or representation, exceed the greater of (i) the actual amount paid by
Customer. to Vendor under this Agreement; or (ii) the amount of insurance proceeds payable to
Customer under Vendor's policies.
9.3 Applicable Law and Jurisdiction. Subject to the limitations of Section 9.4, the parties
agree that any claim, action or dispute, whether at law or in equity, between them and arising out of
this Agreement or the existence, use, condition, validity, function or operation of emsCharts,
emsCharts Pocket, and emsCharts Mobile shall be governed by the laws of Pennsylvania and shall
be brought only in the Court of Common Pleas of Allegheny County, Pennsylvania, or in the United
States District Court for the Western District of Pennsylvania. By executing this Agreement,
Customer, and Vendor submit themselves to the jurisdiction of the Court of Common Pleas of
Allegheny County, Pennsylvania, and/or the United States District Court for the Western District of
Pennsylvania for all legal and equitable matters arising out of this Agreement and the existence, use,
condition, validity, function or operation of emsCharts, emsCharts Pocket, and emsCharts Mobile_
9.4 Optional Arbitration. In the event of a dispute arising in connection with this
Agreement, including the breach thereof, if the parties agree in writing, the dispute may be resolved
by binding arbitration according to the rules of the American Arbitration Association at an
arbitration proceeding conducted in Pittsburgh, Pennsylvania. The award of the arbitrator(s) may
thereafter be entered in any court having jurisdiction thereof.
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ernsCharts SERVICE AGREEMENT
10. ACCESS TO BOOKS AND RECORDS
10.1 Vendor Documents. Vendor agrees that it will retain and make available upon
request of the Secretary of the Department of Health and Human Services, or the Comptroller
General of the United States, or any of their authorized representatives, any agreements between
health care providers and Vendor and all books, documents and records necessary to verify the
nature and extent of the costs and the services provided under this Agreement. Vendor agrees to
retain all such books, documents and records, and to hold them available for such inspection until the
expiration of four years after the completion of this Agreement. Vendor agrees to promptly notify
Customer of any request it receives for access to Vendor records and to furnish a copy of such
request. The regulations require that access be given within twenty (20) days from the date of the
request, unless written objection is made. If Customer deems such request to be inappropriate, then
it may file an objection. Any proceeding regarding Customer objections will be pursued at
Customer's sole cost and expense, provided, however, that Vendor will provide reasonable
cooperation with Customer.
10.2 Customer Documents. Customer agrees that it will retain and make available upon
request of the Secretary of the Department of Health and Human Services, or the Comptroller
General of the United States, or any of their authorized representatives, any agreements between
health care providers and Customer, and all books, documents and records necessary to verify the
nature and extent of the costs and the services provided under this Agreement. Customer agrees to
retain such books, documents and records, and to hold them available for such inspection until the
expiration of four years after the completion of this Agreement. Customer agrees to promptly notify
Vendor of any request it receives for access to Customer records and to furnish a copy of such
request. The regulations require that access be given within twenty (20) days from the date of the
request, unless written objection is made. If Vendor deems such a request to be inappropriate, then it
may file an objection. Any proceeding regarding Vendor objections will be pursued at Vendor's
sole cost and expense, provided, however, that Customer will provide reasonable cooperation with
Vendor.
10.3 Subcontractors. Vendor and Customer agree that their subcontractors will similarly
be required by them to retain and give access to similar books, documents and records.
10.4 Corn fiance with Requests. Compliance with any governmental request for
information shall not provide a basis for a claim for any compensation under this Agreement.
11. NIISCELLANEOUS
11.1 Ass lent. The rights and obligations of either party under this Agreement shall not
be assignable, whether by contract, merger, operation of law or otherwise, without the prior written
consent of the other. Notwithstanding the foregoing, the rights and obligations of either party may
be assigned to a successor corporation or entity of either party or a corporation or entity that
purchases or obtains all or substantially all of the assets of either parry. Vendor may also assign its
rights and obligations to a corporation or other entity wholly or partly owned by Vendor.
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emsCharts SERVICE AGREEMENT
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year
first above written.
City of Richmond, Indiana, by and
through its Board of Public Works emsCharts, Inc.
'Na of ustomer)
By:
Vicki Robinson (Name)
President ��l j (Title)
Dated: �—I® X
U.-Anthony IC Foster, III, Member
Approved:
Sa y Hutto , Mayor
By:
Peter Goutmann (Name)
Vice President (Title)
Dated: 4( r1 1 if
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emsCharts SERVICE AGREEMENT
11.2 Force Maj cure. Except for the payment of fees by Customer, if the performance of
any party to this Agreement is prevented, hindered, delayed or otherwise made impracticable by
reason of any flood, riot, fire, judicial or governmental action, labor disputes, interruption of
telephone lines or electronic delivery systems, software or computer hardware defect or viruses (not
caused by Vendor or someone under the control of Vendor), acts or omissions of third parties outside
the control of Vendor (including but not limited to acts or omissions of any third party service
provider or equipment vendor, messenger service or telephone carrier), acts of God, or any other
causes or conditions reasonably beyond the control of either party, that party shall be excused from
such performance to the extent and for the time period that such performance is prevented, hindered
or delayed by such causes.
11.3 Entire Agreement. This Agreement constitutes the full understanding and entire
agreement between the parties. No terms, conditions, understandings or agreements purporting to
modify or vary this Agreement shall be binding unless made in writing and signed by both parties.
11.4 Notices. All notices which either party may be required to give the other party shall
be in writing and delivered personally, or sent registered or certified mail, postage prepaid, return
receipt requested, or sent by facsimile or telecopier machine (provided no errors are reported in
transmission) to the following:
Customer:
Contact: -Brenda Ding.werth
Title: Executive Assistant
Address: Fire Station No. I
101 South 5th Street
Richmond, IN 47374
Phone: 765-983-7266
Fax: 765-962-1808
emsCharts, Inc.:
Peter Goutmann
Vice President
600 Mifflin Road, Suite 102
Pittsburgh, PA 15207
Fax: (412) 461-3270
11.5 No Third Party Beneficiaries. Nothing in this Agreement shall be construed as
creating or granting rights or benefits hereunder to anyone other than Customer and Vendor.
11.6 Notification of Adverse Events. Each party shall be obligated to immediately notify
the other if it is the subject of any investigatory action by any federal, state or local agency or
affiliation/accreditation organization, or if it is sanctioned or disciplined by any such agency or
organization.
11.7 Independent Provisions. Each provision of this Agreement shall be considered
separable, and if for any reason any provision of this Agreement is determined to be invalid and/or
contrary to any existing or future law, regulation, rule and/or order, such invalidity shall not impair
the operations of, or affect those portions of this Agreement which are valid.
11.8 Independent Contractors. Neither party intends, and nothing contained herein shall be
construed, to create a joint venture, partnership or principal and agent relationship between the
parties, and accordingly, neither party shall have any right, power or authority to create any
obligation, express or implied, on behalf of the other.
emsCharts SERVICE AGREEMENT Page 9 of 20
Prepared For:
ATTACHMENT C
QUOTATION
1/10/11
1317 North Road
Niles, OH 44446
P] 800.392.7233 ext 26
F] 330.544.0022
Mike Crawley Prepared By: Jamie Ciccone
Richmond Fire Department
BILLING PARTNER PRICING
emsCharts Base Package
256.00
3001-5000 calls per year
Automatic data transfer to DOH
Standard and Custom Reporting
Quality Assurance
Certification Tracker
Continuing Education
Online Training
Helpdesk Support
Mobile Software
102.00
EKG Interface for Mobile:
64.00
CAD Interface:
38.00
Initial Set-up Fee
WAIVED
NO ANNUAL SOFTWARE MAINTENANCE FEE'S
NO NEED TO PURCHASE OR MANAGE SERVERS, MIDDLE WARE, OR DATABASES
NO SIGNIFICANT INFRASTRUCTURE START-UP COSTS
FREE SOFTWARE UPGRADES
RAPID IMPLEMENTATION & EASY INSTALLATION
100% ELIMINATION OF RESOURCES NEEDED FOR SYSTEM SU!
CUSTOMIZABLE & USER FRIENDLY I� •' P 2 6° D
(YLm" C t U 2 '.
-61
oe.[' .46 0- U 0 F
emsCharts SERVICE AGREEMENT
6.3 No Third -Party Beneficiaries. Nothing express or implied in this
Agreement is intended to nor shall be construed to confer upon any person other than Covered Entity
and Business Associate any rights, remedies, obligations or liabilities whatsoever.
6.4 Interpretation. The provisions of this BA Agreement shall prevail over any
provisions in the Agreement that may conflict or appear inconsistent with any provision in this BA
Agreement. The parties agree that any ambiguity in this BA Agreement shall be resolved in favor of
a meaning that allows Covered Entity to comply with HIPAA and the HIPAA Regulations.
6.5 Survival. The respective rights and obligations of Business Associate under
Section 5.3 shall survive the termination of this BA Agreement.
COVERED ENTITY
City of Richmond, Indiana by
and through its board of Public
Works and Safety
By:
t ame)
VicK Robi son, President
a
(Title)
Dated: 3' " L
v�v Yv
Dian'-tawson, Member
Y
Anthony L. F st r, II, Member
Approved:
Sally Hutt
u on, Mayor
BUSINESS ASSOCIATE
Peter Goutmann (Name)
Vice President {Title)
Dated: 41 i,111 _
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emsCharts SERVICE AGREEMENT
Section 5. Term and Termination
5.1 Term. The term of this BA Agreement shall be co -terminus with the
Agreement. However, the provisions of this BA Agreement shall continue so long as Covered Entity
maintains access to any PHI belonging to Covered Entity,
5.2 Termination for Cause. Upon Covered Entity's knowledge of a material
breach involving the use or disclosure by Business Associate of PHI in violation of the Privacy Rule,
Covered Entity shall either:
(a) provide an opportunity for Business Associate to cure the breach or end
the violation within thirty (30) days. Covered Entity shall then have the right to terminate this BA
Agreement and the Agreement if Business Association does not cure the breach or end the violation
within the thirty (30) day period;
(b) immediately terminate this BA Agreement and the Agreement if a cure
is not possible; or
(c) if neither termination nor cure are feasible; Covered Entity shall -report
the violation to the Secretary.
- 5.3 Effect of Termination. Except as otherwise provided in this section, upon
termination of this BA Agreement, for any reason, Business Associate shall return or destroy all PHI
received from Covered Entity, or created or received by Business Associate on behalf of Covered
Entity. This provision shall apply to PHI that is in the possession of subcontractors or agents of
Business Associate.. Business Associate shall retain no copies of the PHI. In the event that the
Business Associate determines that returning or destroying the PHI is infeasible, Business Associate
shall provide Covered Entity notification of the conditions that make return or destruction infeasible.
Upon written verification by Covered Entity that return or destruction of PHI is.infeasible, Business
Associate shall extend the protections of this BA Agreement to such PHI and limit further uses and
disclosures of such PHI and limit further uses and disclosures of such PHI to those purposes that
make the return or destruction infeasible, for so Iong as Business Associate maintains such PHI.
Section 6. Miscellaneous Provisions.
6.1 Amendment. The parties acknowledge that laws relating to data security and
privacy are evolving and that amendment of the Agreement and/or this BA Agreement may be
required to provide for compliance with such developments. The parties agree to take such action as
is necessary to amend the Agreement or this BA Agreement from time to time as is necessary for
Covered Entity to comply with the requirements of HIPAA, the HIPAA Regulations, or any other
state and/or federal law relating to data security and privacy.
6.2 Regulatory References. A reference in this BA Agreement to a section in the
HIPAA Regulations means the section as in effect or as amended.
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emsCharts SERVICE AGREEMENT
(c) to report violations of law to appropriate federal and state authorities
consistent with 45 CPR § 164.5020)(i);
(d) to carry out the legal responsibilities of Business Associates or for the
proper management and administration of Business Associate.
3.2 To the extent that Business Associate discloses PHI to a third party to carry
out the legal responsibilities of or for the proper management of Business Associate, Business
Associate shall:
(a) obtain prior reasonable assurances from such third party that such PHI
will be held confidentially as provided pursuant to this BA Agreement and only used or disclosed as
Required By Law or for the purposes for which it was disclosed to such third party;
(b) have the third party agree to immediately notify Business Associate of
any breaches of confidentiality of the PHI of which such third party becomes aware; and
(c) only disclose to such third party the minimum amount of PHI necessary
to accomplish the purpose of the disclosure.
3.3 Covered Entity shall not request Business Associate to use or disclose PHI in
any manner that would not be permissible under the Privacy Rule if done by Covered Entity.
Section 4. Obligations of Covered Entity.
4.1 Covered Entity shall be responsible for using appropriate safeguards to
maintain and ensure the confidentiality, privacy and security of PHI transmitted to Business
Associate pursuant to the Agreement or this Business Associate Agreement, in accordance with the
standards and requirements of the Privacy Rule, until such PHI is received by Business Associate.
4.2 Covered Entity shall be responsible to notify Business Associate whenever it
desires to remove a hospital or other health care provider from Covered Entity's list of organizations
with which Covered Entity exchanges PHI for treatment purposes.
4.3 Covered Entity shall be responsible to do whatever is necessary to deny
further access to PHI by any user who or that no longer should be entitled or authorized to access
PHI. Business Associate shall be available, upon request, to help Covered Entity to limit PHI only
to authorized users.
4.4. Covered Entity shall notify Business Associate of any restriction to the use or
disclosure of PHI that Covered Entity has agreed to in accordance with 45 CFR § 164.522 to the
extent that such restriction may affect Business Associate's use or disclosure of PHI.
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emsCharts SERVICE AGREEMENT
2.8 Accounting for Disclosures.
(a) The functionality of emsCharts allows Covered Entity to obtain
information of all disclosures of PHI. Business Associate agrees to maintain such functionality to
assure that Covered Entity shall have access to information related to disclosures of PHI as would be
required for Covered Entity to respond to a request by an Individual for an accounting of disclosures
of PHI in accordance with 45 CFR' 164.528.
(b) In the event that a request for an accounting is delivered directly to
Business Associate or its agent or subcontractor by an Individual or a party other than Covered
Entity, Business Associate shall within five (5) days of such request forward it to Covered Entity in
writing.
(c) To the degree necessary, Business Associate shall assist Covered Entity
in obtaining and creating information related to the disclosures of PHI for any individual in the form
and manner required by the Privacy Rule,
2.9 Governmental Access to Records. Business Associate shall make its
internal practices, books and records, including policies and procedures and PHI, relating to the use
and disclosure of PHI available to the Secretary in a time and manner reasonable under the
circumstances for purposes of determining Covered Entity's compliance with the Privacy Rule.
Business Associate shall notify Covered Entity, in writing, of any request by the Secretary under this
Section 2.9, and shall provide Covered Entity with a copy of any PHI that Business Associate
provides to the Secretary concurrently with providing such PHI to the Secretary.
i..
2.10 Inspection by Covered Entity. Within ten (10) days of a written request by
Covered Entity, Business Associate and its agents or subcontractors shall allow Covered Entity to
conduct a reasonable inspection of the facilities, systems, books, records, agreements, policies and
procedures relating to the use or disclosure of PHI pursuant to this BA Agreement for the purpose of
determining whether Business Associate has complied with this BA Agreement; provided, however,
that (a) Business Associate and Covered Entity shall mutually agree in advance upon the scope,.
timing and location of such an inspection, (b) Covered Entity shall protect the confidentiality of all
confidential and proprietary information of Business Associate to which Covered Entity has access
during the course of such inspection; and (c) Covered Entity shall execute a nondisclosure
agreement, upon terms mutually agreed upon by the parties, if requested by Business Associate.
Section 3. Permitted Uses and Disclosures by Business Associate.
. 3.1 Business Associate may use and disclose PHI for the following purposes to
the degree such purposes would not violate the Privacy Rule if done by Covered Entity:
(a) to hospitals and other health care providers designated by Covered
Entity as being organizations with which Covered Entity exchanges PHI for treatment purposes;
(b) to users approved by Covered Entity ("Approved Users") as defined in
the Agreement;
emsCharts SERVICE AGREEMENT Page 17 of 20
emsCharts SERVICE AGREEMENT
1.6 Secretary. "Secretary" shall mean the Secretary of the Department of Health
and Human Services or his/her designee.
Section 2. Obligations and Activities of Business Associate.
2.1 Non -Disclosure. Business Associate shall not use or disclose PHI except as
permitted or required under the Agreement, this BA Agreement or as Required By Law.
2.2 Appropriate Safeguards. Business Associate shall implement appropriate
safeguards as are necessary to prevent the use or disclosure of PHI other than as permitted by the
Agreement, this BA Agreement or as Required By Law.
2.3 Reporting of Improper Use or Disclosure. Business Associate shall report
to Covered Entity any suspected or actual use or disclosure of PHI of which Business Associate
becomes aware that is not provided for by the Agreement, this BA Agreement or as Required By
Law.
2.4 Business Associate's Agents. Business Associate shall ensure that any agent,
including a subcontractor, to whore it provides access to PHI agrees to the same restrictions and
conditions that apply to Business Associate pursuant to the Agreement or this BA Agreement with
respect to such information.
2.5 Duty to Mitigate. Business Associate shall mitigate, to the extent practicable,
any harmful effect that is known to Business Associate of a use or disclosure of PHI by Business
Associate, or any agent or subcontractor of Business Associate, in violation of the requirements of
the Agreement or this BA Agreement.
2.6 Access to PHI. Business Associate shall make PHI maintained by Business
Associate in a Designated Record Set available to Covered Entity for inspection and copying within
ten (10) days of a request by Covered Entity, to enable Covered Entity to fulfill its obligations under
the Privacy Rule, including, but not limited to, 45 CFR' 164,524.
2.7 Amendment of PHI. Under the Agreement, Covered Entity has full access to
all PHI of its patients stored in emsCharts and shall, therefore, be able to fulfill its obligations under
the Privacy Rules to amend a patient's PHI at the request of the patient. If any Individual requests
an amendment of PHI, or a record about the Individual, contained in a Designated Record Set
directly from Business Associate or its agents or subcontractors, Business Associate shall notify
Covered Entity in writing within five (5) days of the request. Covered Entity shall have sole
authority and responsibility to approve or deny such a request, and shall notify Business Associate,
in writing, of its decision to approve or deny any such request.
emsCharts SERVICE AGREEMENT Page 16 of 20
emsCharts SERVICE AGREEMENT
ATTACHMENT B
HIPAA BUSINESS ASSOCIATE AGREEMENT
This HIPAA Business Associate Agreement (the "BA Agreement") supplements and is made a
part of the emsCharts Service Agreement (the "Agreement") by and between city of Richmond, IN
(the "Covered Entity") and emsCharts, Inc. (the "Business Associate").
WHEREAS, pursuant to the terms of the Agreement, Covered Entity will be utilizing
Business Associate's emsCharts website to enter, store, manipulate and process certain information,
some of which may constitute Protected Health Information ("PHI") (defined below); and
WHEREAS, Covered Entity and Business Associate intend to protect the privacy and provide
for the security of PHI disclosed to Business Associate in compliance with the Health Insurance
Portability and Accountability Act of 1996, Public Law 104-191 ("HIPAA") and regulations
promulgated thereunder by the U.S. Department of Health and Human Services (the "HIPAA
Regulations") and other applicable laws; and
WHEREAS, as part of the HIPAA Regulations, the Privacy Rule (defined below) requires
Covered Entity to enter into a contract with Business Associate containing specific provisions,
including, without limitation, provisions satisfying the requirements set forth in Title 45, Sections
164.502(e) and 164.504(e) of the Code of Federal Regulations ("CFR"), prior to the disclosure of
PHI;;
NOW THEREFORE, in consideration of the mutual promises below and the exchange of
information pursuant to this Business Associate Agreement, the parties intending to be legally
bound; agree as follows:
Section 1. Definitions.
1.1 Designated Record Set. "Designated Record Set" shall have the meaning
given to such term under the Privacy Rule, including, but not limited to, 45 CFR' 164.501.
1.2 Individual. "Individual" shall have the same meaning given to such term in
45 CFR' 164.501 and shall include a person who qualifies as a personal representative in accordance
with 45 CFR' 164.502(g).
1.3 Privacy Rule. "Privacy Rule" shall mean the Standards for Privacy of
Individually Identifiable Health Information at 45 CFR parts 160 and 164, subparts A and E.
1.4 Protected Health Information. "Protected Health Information" or "PHI"
shall have the same meaning as the term "protected health information" in 45 CFR' 164.501, limited
to the information created or received by Business Associate from or on behalf of CE.
1.5 Required By Law. "Required By Law" shall have the same meaning as the
term "required by law" in 45 CFR' 164.501.
emsCharts SERVICE AGREEMENT Page 15 of 20
emsCharts SERVICE AGREEMENT
C. Reliability Commitment - Definition and Calculation. Reliability, for purposes of
this Agreement, is defined as the number of consecutive calendar months during the
Term of this Agreement when emsCharts' Availability Commitment is not met.
Vendor will maintain, and provide upon request to Customer, a Services Service
Level log documenting Service Level performance including all data required to
calculate Reliability.
D. Reliability Commitment - Performance and Remedy. In the event that emsCharts
does not meet its Reliability Commitment during the Term, the following remedies
will be available to Customer and enforceable at the Customer's discretion:
emsCharts does not meet Availability Commitment (regardless of by what %)
for two (2) consecutive months: 25% reduction (above Availability remedy)
in next monthly invoice.
2. emsCharts does not meet Availability Commitment (regardless of by what
%) for three (3) consecutive months: 40% reduction (above Availability
remedy) in next monthly invoice.
3. emsCharts does not meet Availability Commitment (regardless of by what %)
for four (4) consecutive months: Vendor is in default of Agreement and
Customer may exercise any available remedy for Early Termination at its
sole discretion or may take a 50% reduction (above Availability remedy) in
next monthly invoice.
All remedies .provided to Customer are in the form of liquidated damages against
Vendor. As noted elsewhere in this Agreement, Vendor has offered this service level
agreement and associated liquidated damages as the sole recourse for the Customer
in the event of performance problems with or non-performance of emsCharts. All
other damages that the Customer may pursue are limited as noted elsewhere in this
Agreement.
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emsCharts SERVICE AGREEMENT
(9) A failure of a Customer local area network or wide area
network that prevents the transmission of data intended for
review at the destination. This includes any disruptions of
Customer telephone lines, Customer ISP connections to the
Internet and any electronic delivery systems that constitute
the "Internet backbone."
(10) Anything beyond Vendor's reasonable control. This includes,
but is not limited to, any acts of God, widespread power
outages or telecommunication disruptions, and/or the illegal
activity of virus writers and/or "hackers" who deliberately
produce material/actions that disrupt the connectivity between
Customer and Vendor, including a denial of service attack.
(11) Any planned downtime or maintenance communicated by
Vendor to Customer. Communication may include notices on
Vendor's web site.
III. SERVICE LEVEL COMMITMENT
A. Availability Commitment - Defmition and Calculation. emsCharts shall be Available
for Customer Usage 98% of the time during anyone calendar month. "Available for
Customer Usage" means that emsCharts is functioning and is not subject to
"Downtime." "Downtime" equals the time during which emsCharts is functioning
with a Critical Problem or not functioning due to a Critical Problem. Downtime will
commence when Customer notifies Vendor that emsCharts is unavailable for use as a
result of a Critical Problem. Downtime will end as soon as the Critical Problem is
cured and emsCharts is available for use without a Critical Problem.
Vendor will maintain, and provide upon request to Customer, a Services Service
Level log documenting Service Level performance including all data required to
calculate Availability.
B. Availability Commitment - Performance and Reme . In the event that Vendor does
not meet its Availability Commitment during any calendar month during the Term,
Customer's next monthly invoice shall be reduced by 10% plus an additional I % for
each 1% increment below the Availability Commitment.
emsCharts SERVICE AGREEMENT Page 13 of 20 .
emsCharts SERVICE AGREEMENT
B. Remedial Work.
1. Critical Problem. In the event of a critical problem, Vendor will use all
efforts to correct a verifiable, reproducible problem within I business day (i)
after Customer reports such problem to Vendor; or (ii) after detection by
Vendor.
2. Non -Critical Problem_ In the event of a non -critical problem, Vendor will
use reasonable efforts to correct a verifiable, reproducible non -critical
problem within 5 business days (i) after Customer reports such problem to
Vendor; or (ii) after detection by Vendor.
3. Exclusions. Vendor's obligations to correct problems, make repairs, provide
maintenance or provide other services (the "remedial work") shall not
include:
(a) remedial work for anything other than to emsCharts, emsCharts
Pocket, and emsCharts Mobile software.
(b) Any remedial work in any way required by or related to the
following:
(1) Customer or Customer's representative's designs,
specifications or instructions;
(2) Customer failure to fulfill any of Customer obligations or
responsibilities under the Agreement;
(3) Failure by Customer to comply with Vendor's written
instructions or recommendations;
(4) Customer or any Customer's designated third party using or
combining any component of emsCharts, emsCharts Pocket,
and emsCharts Mobile with any incompatible product or
service that does not properly exchange data with emsCharts;
(5) Alteration or improper use of emsCharts, emsCharts Pocket,
and emsCharts Mobile by Customer or others;
(6) A failure to use or install error corrections, repairs, updates or
upgrades or take other reasonable actions recommended by
Vendor so that products functions property;
(7) Customer's own hardware, software, equipment or facilities
(8) Design or manufacturing defects in any products or services
not made and provided by Vendor;
emsCharts SERVICE AGREEMENT Page 12 of 20
emsCharts SERVICE AGREEMENT
ATTACHMENT A
MAINTENANCE AND SERVICE LEVEL GUIDELINES
I. DEFINITIONS
A. "Regular or Peak Hours": The hours of 7:00 a.m. to 11:00 p.m. (based on Eastern
Standard Time or Eastern Daylight Savings Time, whichever is currently applicable)
B. "Non -Peak Hours": All other hours in a day that are not "Peak Hours."
C. "Non -Critical System Maintenance": Maintenance that is not necessary to maintain
the integrity of data or system stability.
D. "Critical System Maintenance": Maintenance that is necessary to maintain the
integrity of data or system stability.
E. "Critical Problem": Any problem encountered by Customer that materially and
adversely interferes with Customer's use of emsCharts, emsCharts Pocket, and
emsCharts Mobile
F. "Non -Critical Problem": Any problems encountered by Customer involving the use
of emsCharts, emsCharts Pocket, and emsCharts Mobile that does not materially or
adversely interfere with Customer's use.
IL MAINTENANCE AND REMEDIAL WORK
A. Scheduled and Non -Scheduled Maintenance.
1. Non -Critical System Maintenance. Vendor will use best efforts to carry out
Non -Critical System Maintenance during Non -Peak hours. If downtime is
anticipated to be less than 15 minutes, at least 4 hours prior notice will be
given as an application message on the system. If downtime is anticipated to
be between 16 and 90 minutes, at least 24 hours prior notice will be given
using both application messages and email notification to the service
administrator as listed by Customer in the application configuration. If
downtime is anticipated to be greater than 90 minutes, at least 72 hours prior
notice will be made using both application messages and email notification to
the service administrator as listed in the application configuration.
2. Critical System Maintenance. Critical system maintenance may be
performed whenever it is deemed necessary by Vendor to maintain the
integrity of data or the stability of the system.
emsCharts SERVICE AGREEMENT Page 11 of 20