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HomeMy WebLinkAboute-MDs, Inc. - 082012pis VMII-�. R 1�5I ESS ASSOCIATE AGREEMENT MDs This Business Associate Agreement ("Agreement") is entered into by and between a -MDs, Inc., whose principal office is at 9900 Spectrum Drive, Austin, Texas 78717 (the "Business Associate") and Jefferson County Public Health with its principal office located at 615 Sheridan St. Port Townsend, WA 98368 (the "Covered Entity") (each a "Party' and collectively the "Parties"). INTRODUCTION WHEREAS, the Business Associate is a Texas Corporation and the Covered Entity is a .Government Entity ; and WHEREAS, the Parties have or are entering into a separate agreement (the "License Order") under which the Business Associate will perform certain specified services for or on behalf of the Covered Entity (the "Services"), in addition to licensing certain software products to the Covered Entity; and WHEREAS, in providing the Services, Business Associate may use and/or disclose protected health information received from the Covered Entity ("PHI") as defined in 45 C.F.R. § 160.103 relating to the Standards for Privacy of Individually Identifiable Health Information (the "Privacy Regulations") and the Security Standards for the Protection of Electronic Protected Health Information (the "Security Regulations'), promulgated under the Health Insurance Portability and Accountability Act of 1996, as amended ("HIPAA" ); and WHEREAS, this Agreement sets forth the terms and conditions pursuant to which the Business Associate must maintain, protect, create, use and/or disclose any PHI (which includes electronic PHI, or EPHI) that is provided to, or is created or received by, it from or on behalf of the Covered Entity; and WHEREAS, the Parties intend that this Agreement comply with the provisions in the Privacy Regulations and Security Regulations requiring business associates to provide adequate assurances to a covered entity with respect to the Business Associate's duties to protect the confidentiality of PHI. NOW, THEREFORE, for good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Parties hereby agree as follows: 1. RESPONSIBILITIES OF BUSINESS ASSOCIATE WITH RESPECT TO PHI 1.1 Primary Responsibilities of Business Associate with Respect to PHI. With regard to its use and/or disclosure of PHI, the Business Associate hereby agrees to do the following: a. Use and/or disclose the PHI only as reasonably necessary to perform the Services, as required by Law, and as otherwise permitted or required by this Agreement. b. Use commercially reasonable safeguards to prevent use or disclosure of the PHI other than as provided for by this Agreement. c. Report to the designated Privacy Officer of the Covered Entity, in writing, any use and/or disclosure of the PHI that is not permitted or required by this Agreement of which Business Associate becomes aware within five (5) business days of the Business Associate's discovery of such unauthorized use and/or disclosure. d. Establish procedures for mitigating, in a commercially reasonable manner, any deleterious effects from any improper use and/or disclosure of PHI that the Business Associate reports to the Covered Entity. e. Provide adequate administrative, technical and physical safeguards to protect and maintain the confidentiality of any PHI in its possession. If Business Associate electronically exchanges data containing PHI with Covered Entity, Business Associate will use commercially reasonable efforts to ensure that all transmissions of data are authorized, protect the integrity and confidentiality of PHI, and protect business records and data from improper access. In particular, as required by the Security Regulations, the Business Associate agrees to the following requirements: 1. implement administrative, physical, and technical safeguards that reasonably and appropriately protect the confidentiality, integrity, and availability of the EPHI that it creates, receives, maintains or transmits on behalf of the Covered Entity; 2. ensure that any agent, including a subcontractor, to whom it provides EPHI agrees to implement reasonable and appropriate safeguards to protect it; 3. promptly report to the Covered Entity any security incident of which it becomes aware, and in no case make such notification later than sixty (60) calendar days after discovery of such security incident. The notification shall include, to the extent possible, the identification of each individual whose unsecured e -MDs BAA — Page 1 of 7 Revised 517/2010 e-MDs BUSINESS ASSOCIATE AGREEMENT 7!■Ds protected health information has been, or is reasonably believed to have been, accessed, acquired, used, or disclosed during the breach. Either at the time of the original notification, or promptly thereafter as the information becomes available, Business Associate shall provide to the Covered Entity, to the extent possible, any other available information that the Covered Entity is required to include in its notification to affected individuals under 45 C.F.R. § 164.404(c).; 4. make its procedures, policies, and documentation of safeguards available to the Secretary of Health and Human Services (the "Secretary") for purposes of demonstrating compliance with the Security Regulations; and 5. authorize termination of the Agreement by the Covered Entity, if the Covered Entity determines that the Business Associate has violated a material term of the Agreement, as set forth more fully in section 4.2 of this Agreement. f. To the extent Business Associate discloses PHI to a third party as permitted by this Agreement, Business Associate must obtain, prior to making any such disclosure: (i) reasonable assurances from such third party that such PHI will be held confidential as provided pursuant to this Agreement, and only disclosed as required by law or for the purposes for which it was disclosed to such third party; and (ii) an agreement from such third party to immediately notify Business Associate of any breaches of confidentiality of PHI, to the extent it has knowledge of such breach. g. Business Associate agrees that it will incorporate in all agreements with its contractors and vendors, such HIPAA compliance provisions as are substantially in the form set forth in this Agreement so that each shall be bound thereunder to the same extent as Business Associate is bound hereunder. In. In the event Business Associate (i) is ordered by any court of competent jurisdiction or governmental agency to disclose PHI (ii) receives a request from the Secretary to inspect Business Associate's books and records relating to the use and disclosure of PHI, Business Associate agrees to promptly notify the Covered Entity and cooperate with the Covered Entity in connection with any reasonable and appropriate action the Covered Entity deems necessary with respect to such PHI. In particular, Business Associate agrees to make its internal practices, books, and records relating to the use and disclosure of PHI available to the Secretary for purposes of demonstrating compliance with the Privacy Regulations. Document such disclosures of PHI and information related to such disclosures 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. Within 30 days of receiving a written request from the Covered Entity, provide to the Covered Entity such information as is requested by the Covered Entity to permit the Covered Entity to respond to a request by an individual for an accounting of the disclosures of the individual's PHI in accordance with 45 C.F.R. § 164.528. In the event a request is received directly by the Business Associate from an individual requesting an accounting of disclosures, Business Associate will notify Covered Entity within five (5) business days and only act as instructed by the Covered Entity. k. At the request of, and in the time and manner designated by the Covered Entity, provide access to the PHI in a Designated Record Set created or maintained by the Business Associate to the Covered Entity or the individual to whom such PHI relates or his or her authorized representatives in order to meet a request by such individual under 45 C.F.R. § 164.524. In the event a request is received directly by the Business Associate from an individual requesting access to their PHI, Business Associate will notify Covered Entity within five (5) business days and only act as instructed by the Covered Entity. I. At the request of, and in a commercially reasonable time and manner designated by the Covered Entity, make any amendment(s) to the PHI that the Covered Entity directs pursuant to 45 C.F.R. § 164.526. Where the Covered Entity denies, in whole or in part, the individual's request to amend, and the individual files a Statement of Disagreement, the Covered Entity's initial denial, the individual's Statement of Disagreement and the Covered Entity's Rebuttal Statement, if any, must be retained by the Business Associate and appended or linked to the PHI in that individual's Designated Record Set which was the subject of the requested amendment. In the event a request is received directly by the Business Associate from an individual requesting an amendment to the PHI in that individual's Designated Record Set whether or not maintained by the Business Associate, Business Associate will notify Covered Entity within five (5) business days and only act as instructed by the Covered Entity. e -MDs BAA — Page 2 of 7 Revised 5/7/2010 e-MDs BUSINESS ASSOCIATE AGREEMENT MDS m. Subject to Section 4.3 below, return to the Covered Entity or destroy, within 30 days of the termination of this Agreement, any PHI in its possession and retain no copies, including, but not limited to, all backups. n. Disclose to its subcontractors, agents or other third parties, only the minimum PHI necessary to perform or fulfill a specific function required or permitted hereunder. o. Business Associate may make any use and/or disclosure of PHI permitted under 45 C.F.R. § 164.512 in connection with the Services and as directed by the Covered Entity. 1.2 Additional Permitted Uses and Disclosures for Business Activities of Business Associate. Unless otherwise limited herein, the Business Associate may: a. Use any PHI in its possession for its proper management and administration and to fulfill any present or future legal responsibilities of the Business Associate provided that such uses are required under state and/or federal laws. b. Disclose any PHI in its possession to third parties for the purpose of its proper management and administration or to fulfill any present or future legal responsibilities of the Business Associate, provided that the Business Associate represents to the Covered Entity, in writing, that (i) the disclosures are required by law, as provided for in 45 C.F.R. § 164.103 or (ii) the Business Associate has received from the third party written assurances regarding its confidential handling of such PHI as required under 45 C.F.R. § 164.504(e)(4). c. Use or disclose any PHI in its possession if necessary to carry out responsibilities and obligations under the License Order. 1.3 Additional Activities of Business Associate. In addition to using any PHI to perform the Services set forth in the License Order and activities referenced in Section 1.1 of this Agreement, the Business Associate may: a. Aggregate any PHI in its possession with the PHI of other covered entities that the Business Associate has in its possession through its capacity as a business associate to said other covered entities provided that the purpose of such aggregation is to provide the Covered Entity with data analyses relating to the Health Care Operations of the Covered Entity. Under no circumstances may the Business Associate disclose PHI of one Covered Entity to another Covered Entity absent the explicit authorization of the Covered Entity. 2. RESPONSIBILITIES OF COVERED ENTITY WITH RESPECT TO PHI With regard to the use and/or disclosure of PHI by the Business Associate, the Covered Entity hereby agrees to a. Provide the Business Associate a copy of the Notice of Privacy Practices (the "Notice") currently in use and inform the Business Associate of any changes in the Notice that the Covered Entity provides to individuals pursuant to 45 C.F.R. § 164.520. b. Inform the Business Associate of any changes in, or withdrawal of, the authorization provided to the Covered Entity by individuals pursuant to 45 C.F.R. § 164.508 in connection with the Services provided by Business Associate. c. Inform the Business Associate of any opt -outs exercised by any individual from fundraising activities of the Covered Entity pursuant to 45 C.F.R. § 164.514(f) in connection with the Services provided by Business Associate. d. Notify the Business Associate, in writing and in a timely manner, of any arrangements permitted or required of the Covered Entity under 45 C.F.R. part 160 and 164 that may impact in any manner the use and/or disclosure of PHI by the Business Associate under this Agreement, including, but not limited to, restrictions on use and/or disclosure of PHI as provided for in 45 C.F.R. § 164.522 agreed to by the Covered Entity. e. Notify the Business Associate, in writing, of any PHI that Covered Entity seeks to make available to an individual pursuant to 45 C.F.R. § 164.524 and the time, manner and form in which the Business Associate is requested to provide such access. f. Notify the Business Associate, in writing, of any amendment(s) to the PHI in the possession of the Business Associate and inform the Business Associate of the time, form and manner in which such amendment(s) shall be made. e -MDs BAA — Page 3 of 7 Revised 5/7/2010 e-MDs BUSINESS ASSOCIATE AGREEMENT -SDS 3. REPRESENTATIONS AND WARRANTIES 3.1 Mutual Representations and Warranties of the Parties. Each Party represents and warrants to the other Party that: a. It is duly organized, validly existing, and in good standing under the laws of the jurisdiction in which it is organized or licensed, it has the full power to enter into this Agreement and to perform its obligations hereunder, and that the performance by it of its obligations under this Agreement have been duly authorized by all necessary corporate or other actions and will not violate any provision of any license, corporate charter or bylaws. b. Neither the execution of this Agreement, nor its performance hereunder, will directly or indirectly violate or interfere with the terms of another agreement to which it is a party, or give any governmental entity the right to suspend, terminate, or modify any of its governmental authorizations or assets required for its performance hereunder. Each Parry represents and warrants to the other Party that it will not enter into any agreement the execution and/or performance of which would violate or interfere with this Agreement. c. All of its employees, agents, representatives and members of its workforce, whose services may be used to fulfill obligations under this Agreement are or shall be appropriately informed of the terms of this Agreement and are under legal obligation to each Party, respectively, by contract or otherwise, sufficient to enable each Party to fully comply with all provisions of this Agreement including, without limitation, any limitations on the otherwise permitted uses and disclosures of an individual's PHI that the Covered Entity has agreed to and which it has communicated to the Business Associate in writing and in a timely manner. d. To the best of the Party's knowledge, neither the Party, nor its shareholders, members, directors, officers, agents, employees or members of its workforce have been excluded or served a notice of exclusion or have been served with a notice of proposed exclusion, or have committed any acts which are cause for exclusion, from participation 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, or have been convicted, under federal or state law (including without limitation a plea of nolo contendere or participation in a first offender deterred adjudication or other arrangement whereby a judgment of conviction has been withheld), of a criminal offense related to (a) the neglect or abuse of a patient, (b) 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 part by any federal, state or local government agency, or (d) interference with or obstruction of any investigation into any criminal offense described in (a) through (d) above. Each Party further agrees to notify the other Party immediately after the Party becomes aware that any of the foregoing representation and warranties may be inaccurate or may become incorrect. 4. TERMS AND TERMINATION 4.1 Term. This Agreement shall become effective on the Effective Date and shall continue in effect until the License Order expires or is terminated. In addition, certain provisions and requirements of this Agreement shall survive its expiration or other termination in accordance with Section 6.3 herein. 4.2 Termination by the Covered Entity. As provided for under 45 C.F.R. § 164.504(e)(2)(iii), Covered Entity may terminate this Agreement and any related Services pursuant to the terms of this paragraph if the Covered Entity determines that the Business Associate has breached a material term of this Agreement, notwithstanding any provision in paragraph 6.9 to the contrary. In such an event, the Covered Entity must: (i) provide the Business Associate with 30 days written notice of the existence of an alleged material breach; and (ii) afford the Business Associate a reasonable opportunity to cure said alleged material breach upon mutually agreeable terms. Nonetheless, in the event that mutually agreeable terms cannot be achieved within 30 days, Business Associate must cure said breach to the reasonable satisfaction of the Covered Entity within 60 days, or such other period of time as may be mutually agreed-upon by the parties. Failure to cure in the manner set forth in this paragraph is grounds for the immediate termination of this Agreement and any related Services. 4.3 Effect of Termination. Upon the event of termination pursuant to this Section 4, Business Associate agrees to return or destroy any PHI in it possession and retain no copies pursuant to 45 C.F.R. § 164.504(e)(2)(ii)(1), if it is feasible to do so. Prior to doing so, the Business Associate further agrees to recover any PHI in the possession of its subcontractors or agents. If it is not feasible for the Business Associate to return or destroy said PHI, the Business Associate will notify the Covered Entity in writing within thirty (30) days. Said notification shall include: (i) a statement that the Business Associate has determined that it is not feasible to return or destroy the PHI in its possession, and (ii) the specific reasons for such determination. Business Associate further agrees to extend any and all protections, limitations and restrictions contained in this Agreement to the Business Associate's use and/or e -MDs BAA — Page 4 of 7 Revised 5/7/2010 e -MDs BUSINESS ASSOCIATE AGREEMENT 'AADS disclosure of any PHI retained after the termination of this Agreement, and to limit any further uses and/or disclosures to the purposes that make the return or destruction of the PHI not feasible. If it is not feasible for the Business Associate to obtain, from a subcontractor or agent, any PHI in the possession of the subcontractor or agent, the Business Associate must provide a written explanation to the Covered Entity and require the subcontractors and agents to agree to extend any and all protections, limitations and restrictions contained in this Agreement to the subcontractors' and/or agents' use and/or disclosure of any PHI retained after the termination of this Agreement, and to limit any further uses and/or disclosures to the purposes that make the return or destruction of the PHI not feasible. 5. INSURANCE AND INDEMNIFICATION 5.1 Insurance. Business Associate shall obtain and maintain, at its own expense, at all times during the term of the License Order, general liability insurance coverage with a minimum of $1,000,000 per occurrence. 5.2 Indemnification: Limitation of Liability. Business Associate hereby agrees to indemnify, defend and hold harmless Covered Entity for liabilities imposed on Covered Entity by a third party arising from any act or omission of Business Associate, its agents, employees, directors, contractors, officers, or other members of its workforce with respect to their uses and/or disclosures of PHI in the course of performing the Services or their duties under this Agreement, even if the liability is not directly to a third party, but imposed as a penalty under HIPAA. This indemnification obligation applies where the cost or damages sustained by Covered Entity arise from a liability to a third party or from a penalty imposed by a governmental agency for failure to comply with a statutory or regulatory obligation. Indemnification includes any costs to Covered Entity to respond to a complaint based on Business Associate's conduct or other actions it needs to take to avoid being penalized if the matter of a penalty arises as a result of the Business Associate's conduct. Accordingly, on demand the Business Associate shall reimburse Covered Entity for any and all direct losses, liabilities, fines, penalties, costs or expenses (including reasonable and necessary attorney's fees) which may for any reason be imposed by reason of any suit, claim, action, proceeding or demand by any third party or any governmental agency which results from the Business Associate's material breach hereunder. Notwithstanding anything in this Agreement to the contrary, in no event shall Business Associate be liable to the Covered Entity or any third party, pursuant to this Agreement or the use or disclosure of PHI or the violation of any statutory or regulatory obligation, for any amounts representing loss of profits, loss of business or indirect, consequential, or punitive damages of the Covered Entity or such third party. The collective liability of the Business Associate under this Agreement, if any, to the Covered Entity shall be limited to the applicable charges paid by the Covered Entity to the Business Associate for the Services during the twelve (12) month period prior to the event or events giving rise to such liability. The Business Associate's obligation to indemnify Covered Entity shall survive the expiration or termination of this Agreement for any reason. 6. MISCELLANEOUS 6.1 Covered Entity. For purposes of this Agreement, Covered Entity shall include all entities covered by the joint Notice of Privacy Practices, if attached hereto. 6.2 Business Associate. For purposes of this Agreement, Business Associate shall include the named Business Associate herein. 6.3 Survival. The respective rights and obligations of Business Associate and Covered Entity under the provisions of Sections 4.3, 5.2, 6.8, 6.10, and Section 1.1 solely with respect to PHI Business Associate retains in accordance with Section 4.3 because it is not feasible to return or destroy such PHI, shall survive termination of this Agreement indefinitely. 6.4 Amendments; Waiver. This Agreement may not be modified, nor shall any provision hereof be waived or amended, except in a writing duly signed by authorized representatives of the Parties. A waiver with respect to one event shall not be construed as continuing, or as a bar to or waiver of any right or remedy as to subsequent events. 6.5 Inconsistencies. To the extent there are any inconsistencies between this Business Associate Agreement, and the terms of the License Order with respect to the uses and disclosures of PHI by the Business Associate, the terms of the Business Associate Agreement will prevail. 6.6 Governing Law. To the extent not preempted by federal law, the laws of the state of Texas, without giving effect to its Conflict of Laws Rules, shall govern this Agreement. e -MDs BAA — Page 5 of 7 Revised 5/7/2010 e-MDs BUSINESS ASSOCIATE AGREEMENT -MDs 6.7 No Third Party Beneficiaries. Nothing express or implied in this Agreement is intended to confer, nor shall anything herein confer, upon any person other than the Parties and the respective successors or permitted assigns of the Parties, any rights, remedies, obligations, or liabilities whatsoever. 6.8 Notices. Any notices to be given hereunder to a Party shall be made via U.S. Mail or express courier to such Party's address given below, and/or (other than for the delivery of fees) via facsimile to the facsimile telephone numbers listed below. Business Associate Contact: e -MDs, Inc. 9900 Spectrum Drive Austin, Texas 78717 Attention: HIPAA Compliance Officer Fax: (512) 335-4375 Covered Entity Contact: Jefferson County Public Health 615 Sheridan St - Port Townsend, WA 98368 Attention: Chief Privacy Officer Fax: ( 360) 385-9401 Each Party named above may change its address and that of its representative for notice by the giving of notice thereof in the manner hereinabove provided. 6.9 Disputes. In the event of any disagreement regarding performance under or interpretation of this Agreement and prior to the commencement of any formal proceedings, the parties shall first attempt in good faith to reach a negotiated resolution by designating a private mediator to resolve the dispute through non-binding mediation. In the event that the dispute is not resolved through mediation, the dispute shall be resolved through binding arbitration in accordance with the then -current commercial rules and procedures of the American Arbitration Association (the "AAA") before a single private arbitrator in private proceedings in Austin, Texas. The parties shall act in good faith to reach agreement on the selection of such arbitrator, but either party may request that the AAA appoint one (1) arbitrator, taking into consideration the unique aspects of this Agreement relating to the medical profession, the Privacy Regulations, and the computer software industry. The arbitrator shall apply the laws of the State of Texas and the United States of America, without reference to rules of conflict of law or statutory rules of arbitration. Judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. The parties agree that, any provision of applicable law notwithstanding, they will not request, and the arbitrator shall have no authority to award, punitive or exemplary damages against any party. Notwithstanding the foregoing, claims by Covered Entity regarding Business Associate's confidentiality obligations to Covered Entity, or actions seeking to prevent disclosure or recover possession of PHI provided to Business Associate by Covered Entity may, at Covered Entity's option, be pursued in a judicial proceeding in any venue and court of competent jurisdiction in which injunctive or other equitable relief shall be appropriate. In the event that any party is required to secure the services of an attorney in order to enforce any right or obligations hereunder, the prevailing party shall be entitled to recover reasonable attorneys' fees and court costs from the other party. Any ambiguity in this Agreement shall be resolved in favor of a meaning that permits Covered Entity to comply with the Privacy Regulations or Security Regulations. Notwithstanding the foregoing, the Covered Entity has the right to terminate this Agreement pursuant to Section 4.2. 6.10 New Requirements. Upon the enactment of any law or regulation affecting the use or disclosure of PHI, or the publication of any decision of a state court or a court of the United States relating to any such law, or the publication of any interpretive policy or opinion of any government agency charged with the enforcement of any such law or regulation, or any newly identified security threats, Covered Entity by written notice to Business Associate may amend the License Order or this Agreement in such manner as Covered Entity deems necessary and appropriate to allow Covered Entity to maintain the Business Associate relationship and to require the Business Associate to perform Services in compliance with the new or revised legal standards. 7. DEFINITIONS. 7.1 Required by law. Required by law shall have the same meaning set out in its definition at 45 C.F.R. § 164.103, as such provision is currently drafted and as it is subsequently updated, amended, or revised. e -MDs BAA — Page 6 of 7 Revised 5/7/2010 7.2gAre O_erations. Health Care Operations shall have the. meaning set out in Its definition at 45 C{F.R. S 164.501, as such pn:twsion is currently dratted and as It is subsequently updated, amended or revised. 7.3iif.Y . Privacy Of fter slued have the meaning as set out In Its definidon at 45 C.F.R. S 184.530(a)() as such pmvhkn is currently dratted and as A is subsequently Mxlated. amended or revised. 7.4 Pnotedad HwIM Information shall have the meaning as set out in its deft at 45 C.F.R. S 180.103, as such provision Is currently drafted and as it ie subsequently updated, Wended or revised. 7,5 fid, Retxfrd Set. Designated Record Set shall have the meaning set out in its definition at 45 C(F.R. § 164.301. Covered Entity will have+ the full _Who* and sole discretion to determine what records, data or r pnbr n- are to be included within the "a of an individuals DeslgnOW Record Set. 7.15 kgjMdusL Individual stroll have fie meaning set out in its definition at 45 C.F.R. S 180.103 and shah include a person who qualifies as,a personal representative in accordence with 46 C.F.R. 184.502(g). i 7.7 JIM. Terms used. but not o(herwlse defined, in this Agreement shall have the same meaning as those teras In 45 C.F.R. 160. 103 and 1e4.1O1, of curer applicable sections. j IN WITNESS WHEREOF, each of Nte ur4wsigrted:has caused this Agreement to be duly executed In Its na"L mid can Its behalf effective as. bf ('Eftcft Date"): I) IF / ro.wiwl,A Approved as * form only: Jsf� Co. Proseontor's "os all - Pepe 7 of 7 Reefeed W=19 0 -MON, Int. ("BUSOOM A OCIAT@") e�- — —��/-Y� Name L,e Title: Date Signed: e-MDs BUSINESS ASSOCIATE AGREEMENT DS 7.2 Health Care Operations. Health Care Operations shall have the meaning set out in its definition at 45 C.F.R. § 164.501, as such provision is currently drafted and as it is subsequently updated, amended or revised. 7.3 Privacy Officer. Privacy Officer shall have the meaning as set out in its definition at 45 C.F.R. § 164.530(a)(1) as such provision is currently drafted and as it is subsequently updated, amended or revised. 7.4 Protected Health Information. Protected Health Information shall have the meaning as set out in its definition at 45 C.F.R. § 160.103, as such provision is currently drafted and as it is subsequently updated, amended or revised. 7.5 Designated Record Set. Designated Record Set shall have the meaning set out in its definition at 45 C.F.R. § 164.501. Covered Entity will have the full authority and sole discretion to determine what records, data or other information are to be included within the scope of an individual's Designated Record Set. 7.6 Individual. Individual shall have the meaning set out in its definition at 45 C.F.R. § 160.103 and shall include a person who qualifies as a personal representative in accordance with 45 C.F.R. 164.502(g). 7.7 Terms. Terms used, but not otherwise defined, in this Agreement shall have the same meaning as those terms in 45 C.F.R. 160.103 and 164.501, or other applicable sections. IN WITNESS WHEREOF, each of the undersigned has caused this Agreement to be duly executed in its name and on its behalf effective as of ("Effective Date"): Approved as to fns ®n1 : def er on '0, prosecutor' ffice e -MDs BAA — Page 7 of 7 Revised 5/7/2010 e -MDs, Inc. ("BMSINESS ASSOCIATE") By: 4 — Name Title: Date Signed: e -MDS LICENSE ORDER TERMS & CONDITIONS ONLY FOR WASHINGTON -IDAHO REC ("WIREC") PARTICIPANT CUSTOMERS The accompanying schedule, quote, offer or order, together with these terms and conditions and each exhibit or addendum accompanying this License Order (collectively, the "License Order" and "Agreement"), constitutes the entire agreement between e - MDs, Inc. ("e -MDs") and the Licensee ("Licensee" and "Customer") identified in this License Order when executed on behalf of both e - MDs and Licensee. In the event that a -MDs and Licensee have entered into a separately signed written agreement relating to Software (defined below), then any conflict between this License Order and such agreement shall be controlled by such agreement unless otherwise provided for herein. In the event that any provision of this License Order is determined to violate any law or is unenforceable, the remainder will remain in full force and effect. e -MDs and Customer(Licensee) agree to the following: Definitions: 1.1. "Active Provider" shall mean a Provider entitled to make active use of the Software at any time. By operation of the Software, Licensee may select which Providers shall be Active Providers at any time and from time to time. Only Users who are Providers may be Active Providers. 1.2. "Charges" shall mean a -MD's charges, prices and fees for Software, Documentation, support and maintenance and any services hereunder. 1.3. "Documentation" shall mean printed or electronic information relating to the Software and generally made available to customers of a -MDs in connection with the delivery of the applicable Software, which may be revised from time to time by e -MDs, which may be done by posting information regarding an updated version of the Documentation for the applicable Software on a -MDs' website or such other location or in such other manner as may be designated by e -MDs from time to time. 1.4. "Provider" shall mean a person, including without limitation a physician, nurse practitioner, or physician assistant, who is a provider of medical care licensed by the applicable governmental entity responsible for oversight of such licensing, whose bills to patients, insurance companies, etc. for such care is made under Licensee's billing number. 1.5. "Software" means a computer program or programs (including any Third Party Software, as may be defined in an addendum hereto), consisting of a series of instructions or statements (including data) executable or otherwise usable on the type of computer equipment specified in the applicable documentation, in the form of machine readable object code, and any enhancements relating thereto (other than any software products which are determined, in a -MDs' sole discretion, to be successor products or extensions to existing products rather than updates to existing products), provided by e -MDs previously or to be provided by e -MDs hereunder. This License Order does not apply to human readable source code, and in no event shall a -MDs be obligated to provide source code for any Software delivered or to be delivered pursuant to this License Order unless otherwise agreed to by e -MDs pursuant to a separate source code escrow agreement. 1.6. "Third Party Software" shall mean software, including without limitation application software, routines, tools, compilers, data or databases, or enhancements to functionality of the Software, that may be delivered as part of the Software, which is proprietary to third parties, and use of such Third Party Software is and shall be subject to restrictions imposed herein and by such third parties. 1.7. "User" shall mean a Provider or any other person authorized to use all or part of the Software, as intended and in accordance with the applicable Documentation, who is an employee of Licensee, is under contract with Licensee or is an employee of an entity under contract with Licensee, and/or who reports to and is under the supervision of one or more Providers, each of whom shall be subject to the terms of this License Order. In addition to Providers, clerical help, nurses, clerks, receptionists, etc. may be Users. 2. Grant of License: 2.1. For each item of Software received by Licensee, e -MDs hereby grants to Licensee, and Licensee shall have, nonexclusive, nontransferable (except as provided for expressly herein and in accordance with e -MDs' then current policies relating to such transfers) license (a "License") for each User to use and execute the object code version of the Software, on behalf of Licensee. 2.2. The Software may be used concurrently only by the number of Active Providers designated in the License Order, and, where applicable, only on the number of workstations and only by the number of Users and subject to such further restrictions, as may be designated in the License Order. 2.3. Portions of the Software intended to be utilized by other Users who are not Providers may be used only as intended by e - MDs, as reflected in the applicable Documentation and consistent with the design of such Software. 2.4. Licensee may copy the applicable Software only as absolutely necessary for back-up purposes, but only consistent with prevailing practices for backup of application software similar to the Software. 2.5. In no event shall the Software, or any copy thereof, be removed from the premises and facilities under the reasonable control of Licensee, except for reasonable off-site storage backup copies. 2.6. Licensee agrees to keep an accurate accounting of all copies of the Software made and to provide e -MDs with such accounting upon request. e -MDs, Inc. Washington Idaho REC ("W IREC") Customer Standard Terms and Conditions (Aug. 2011) Page 1 of 13 2.7. Licensee agrees that a -MDs or its designees may have access to Licensee's computer hardware and media, by direct or remote access, to verify Licensee's compliance with this License Order. 2.8. Licensee is authorized to use the Software and Documentation only for its own internal operation in accordance with the terms and conditions of this License Order. 2.9. Licensee shall not remove or destroy any proprietary markings placed upon or contained within the Software or any related materials or Documentation. 2.10. Under no circumstances shall this License Order be construed to grant any License to the United States Government or any governmental agency or political subdivision thereof; additional terms shall apply with respect to any such transaction. 3. Restrictions and Ownership: 3.1. Licensee understands and agrees that the Software and Documentation is and shall at all times remain the property of e - MDs or third parties which have granted a -MDs the right to license the Software and Documentation, and Licensee shall have no rights or interests therein except the right to use the Software as set forth herein. 3.2. Licensee shall not 3.2.1. access, alter, assign, broadcast, circulate, commercially exploit, convey, copy, create derivative works from, customize, damage, decompile, delete, demonstrate, derive source code, disassemble, display, disseminate, distribute, download or otherwise electronically transmit or receive, export from the United States, encumber (including the grant or sufferance of any security interest), give away, insert in any content aggregation network, lease, lend, license, localize, modify, publish, rent, reproduce, re -sell, re -license, reuse, reverse engineer, sell, sublicense, time-share, transfer, translate or transmit, use, or interfere with the operation of (nor attempt, allow or facilitate any of the foregoing) any Software or Documentation or any facilities to which Licensee may be given access to in order to facilitate use and/or update of the Software unless expressly and specifically permitted by the terms and conditions of this License Order to do so and then only in the exact manner specified; 3.2.2. except for Users acting in accordance with the terms hereof, permit any third party or the general public to access, view, observe the operation of or use all or portions of any Software; 3.2.3. use any Software or Documentation for training by third parties (except third party trainers certified by e -MDs); 3.2.4. remove or alter any trademark, logo, copyright, or other proprietary notices, legends, symbols or labels in or on any Software; and 3.2.5. place on or utilize in conjunction with any portion of the Software materials that violate or infringe any copyright, trademark, patent, trade secret, or other statutory or common law intellectual property right or materials which contain anything obscene or libelous or otherwise in violation of any rule, regulation or statute or any rights of any third party. Any and all modifications of and software derivative to the Software, and any libraries, interfacing software, templates, data or other materials intended to be utilized with the Software, whether developed by e -MDs, Licensee and its employees or any third party employed by Licensee, or jointly by e -MDs and Licensee and its employees or any third party employed by Licensee, and regardless of whether or not Licensee pays for such development, shall be and shall remain the property of e -MDs, and Licensee and its employees shall have no rights or interests therein. Limited Warranty: 4.1. e -MDs warrants, for a period of one hundred eighty (180) days from the date of delivery of the Software (the "Warranty Period"), that such Software (other than Third Party Software) shall perform substantially in accordance with the specifications for such Software set forth in the applicable Documentation if properly installed and used in the operating environment specified in such Documentation and in the manner intended by e -MDs. 4.2. e -MDs does not warrant that the functions contained in the Software will meet Licensee's requirements or will operate in the combination which Licensee selects for use, or that the operation of the Software will be uninterrupted or error free, or that all defects in the Software will be corrected by e -MDs. 4.3. e -MDs' responsibility under this warranty shall be limited to correcting the portion of the Software that fails to perform substantially in accordance with the said specifications or, if e -MDs cannot correct or otherwise resolve defects within 60 days of reporting of such defects; then upon written request from the applicable Licensee and upon return by Licensee of all copies of such Software and related Documentation, e -MDs shall refund the applicable charges paid for software and service charges paid by Licensee, and the Licensee's License(s) for to use and any other rights to have or use all such Software and Services shall terminate. 4.4. e -MDs shall have no liability under the foregoing warranty if 4.4.1. Licensee decompiles, reverse engineers or modifies the Software without e -MDs' prior written consent or otherwise violates the terms of this License Order with respect to limitations on Licensee's use of the Software, 4.4.2. Licensee fails to give e -MDs written notice of the claimed breach of warranty within no more than ten (10) business days of the date Licensee becomes aware of any such alleged defect, or 4.4.3. the failure to perform is caused in whole or in part by persons other than e -MDs or by products, equipment or computer programs not furnished or specified by e -MDs. e -MDs. Inc. Washington Idaho REC ("W IREC") Customer Standard Terms and Conditions (Aug. 2011) Page 2 of 13 n% 4.5. Notwithstanding the foregoing, e -MDs makes no warranties of any kind with respect to Third Party Software or any other hardware manufactured by any third party or software proprietary to any third party, which shall be subject to the warranties and terms and conditions of the applicable licenses or other agreements with the providers of such hardware or software. 4.6. EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED IN THIS PARAGRAPH, THE SOFTWARE AND DOCUMENTATION IS DISTRIBUTED "AS IS," AND NEITHER E -MDS NOR ANY THIRD PARTY PROVIDER OR ANY PORTION OF THE SOFTWARE OR ANY PRODUCT DELIVERED WITH THE SOFTWARE MAKES ANY OTHER WARRANTIES, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON -INFRINGEMENT. Without in any way limiting the generality of the foregoing disclaimer, the foregoing warranty, Licensee assumes all risk of use of the Software. 4.7. Licensee acknowledges that use of the Software requires the exercise of sound medical judgment and reasonable knowledge of the use of the Software; therefore, Licensee agrees to restrict access to the Software to those Users who have been adequately trained in the use of the Software and to restrict full access to the Software functionality intended for Providers to persons whose respective licenses to provide the applicable healthcare services are current and in good standing. 4.8. THIS LIMITED WARRANTY GIVES LICENSEE SPECIFIC LEGAL RIGHTS. LICENSEE MAY HAVE OTHERS, WHICH VARY FROM STATE/JURISDICTION TO STATE/JURISDICTION. 4.9. a -MDs guarantees that the Solution Series software ["Software"] of a -MDs will achieve and maintain the necessary federal requirements to enable the Customer to properly use the Software to achieve Meaningful Use. In the unlikely event and only to the extent, if any, that the Software provided by a -MDs is directly responsible for Customer's not receiving a federal incentive payment due to Customer's inability to achieve a Meaningful Use requirement, then e -MDs will credit Customer all prorated charges for annual a -MDs Software licensing fees (maintenance and support) up to such non -received payment amount for which e -MDs is proportionately responsible. Any such credited amount shall not exceed the total applicable Software license fees paid to a -MDs by Customer. To the extent e -MDs has extended any such credit for which Customer ultimately receives such a federal incentive payment or such time as the Customer should have received any such payment except for some reason not attributable to the Software, Customer shall immediately reimburse the prorated amounts of any such prior credits to a -MDs. If the Customer terminates the Agreement as a result of a -MDs Software not achieving and maintaining such requirements that are applicable to the Customer then a -MDs will refund: Any balance on the Customer's account that is a result of amounts credited to Customer under this provision and: A refund on license fees as follows: Time from EHR Go Live % of refunded e -MDs Solution Series software license fees paid 0-12 Months 50% 13-24 Months 30% 25-36 Months 15% 4.10. Attached hereto in Schedule A is a list of the equipment, software, third party software, interfaces and other products and services, which e -MDs deems necessary, at a minimum, for the Software to perform substantially in accordance with the Documentation (the "Minimum System Configuration"). In the event that during the term of the License Order e -MDs adds to the Minimum System Configuration, and such addition is not the result of enhancements to the Software, or advancement in technology, e -MDs will provide such addition to Licensee at no additional charge, but e -MDs will be allowed the option to allocate reasonable charges proportionately among the applicable customers for any new federal or other mandatory requirements that result in material changes to the applicable products. With regard to additions required as the result of enhancements or advancements, Licensee will not be required to install such enhancements or advancements or purchase such additions, and e -MDs shall continue to support the Software for a reasonable number of years (with advance notice of any planned end of such support) without such enhancements or advancements, which period shall not be less than five (5) years from the Effective Date of the Agreement. 4.11. e -MDs warrants that the Software, as well as any equipment provided by e -MDs, will comply with all mandatory and applicable local, state, and federal regulations, including without limitation the HIPAA security and privacy rules, HITECH meaningful use rules, the applicable state Board of Pharmacy rules, and with the standards of any applicable accreditation organization applicable to the Software of which a reasonable healthcare software company would be aware, within a commercially reasonable time after such regulations are published and before the effective date for such regulations. e -MDs agrees to abide by the policies, standards and requirements established by the Washington State ONC-funded HIE initiative, to include integrating their EHR product into the technical and operational HIE infrastructure. In the event that the Software fails to so comply, e -MDs agrees to modify the Software in a commercially reasonable fashion within a commercially reasonable timeframe to address such requirements. e -MDs will be allowed to assess a reasonable charge among all of its applicable customers for any federal or other mandatory interfacing requirements that result in material changes to the applicable products or when the modification for the product will have a material cost (greater than ten thousand dollars or more than forty hours of effort from a qualified development personnel) for e -MDs to develop. e -MDs, Inc. Washington Idaho REC ("WIREC") Customer Standard Terms and Conditions (Aug. 2011) Page 3 of 13 4.12. a -MDs warrants that it will not "sunset" support for, or remove any core functionality, and will continue to support, the Software (or any replacement software provided to Licensee by e -MDs without additional charge) for a period of five (5) years from the Effective Date, so long as Licensee remains in full continual compliance with the Licensee's material obligations under the Agreement. 4.13. a -MDs also represents and warrants that it has not inserted any Disabling Code (as defined herein) into the Software and that it will use reasonable commercial efforts consistent with industry standards to scan for and remove any viruses from the Software before installation. As used in this Agreement, "Disabling Code" means computer code that is designed to delete, materially interfere with, or disable the normal operation of the Software. If the Customer's licensing rights to use the Software license are no longer valid and supported or exceed the authorized number of users, the Software contains regular warning reminders concerning such unauthorized use. These pop-up warnings in the Software are primarily to remind any user that the license is out-of-date and any and all continued use of the software is at the sole risk and responsibility of the user. i. Limitation of Liability; Disclaimers: 5.1. In no event shall a -MDs or any provider of Third Party Software be liable to Licensee or any third party, pursuant to this License Order or the use of the Software or Documentation or any portion thereof, for any amounts representing loss of profits, loss of data, loss of business or indirect, consequential, or punitive damages of Licensee or such third party. 5.2. The liability of a -MDs, Licensee, and providers of Third Party Software in contract, tort or otherwise for direct damages to Licensee or any third party arising from this License Order or the use of the Software and/or Documentation or other materials provided by a -MDs or any third party through e -MDs shall be limited to credit for twice the amount of the Licensing Charges paid to a -MDs under this License Order during the preceding twenty-four month period prior to the date of any such damage with respect to any portion of the Software demonstrated to be materially defective and only to the proportionate extent: such material defect in the Software is demonstrated to have caused and be responsible for such damages; except this limit will be inapplicable to the extent due to the gross negligence or willful misconduct of a -MDs, Licensee, or any third party. LICENSEE AGREES THAT THE LICENSED SOFTWARE AND DOCUMENTATION IS A DOCUMENTATION AND REFERENCE TOOL ONLY, AND THAT THE LICENSED SOFTWARE IS NOT INTENDED TO PROVIDE ANY LIFE SUPPORT, DIAGNOSES, PRACTICE GUIDELINES, ADVICE, OR PROTOCOLS FOR DELIVERING MEDICAL CARE IN PLACE OF THE SOUND MEDICAL JUDGMENT OF THE PROVIDER OR OTHER PERSON OPERATING THE SOFTWARE. LICENSEE FURTHER AGREES THAT NOTHING IN THE LICENSED SOFTWARE, THE DOCUMENTATION OR ANYTHING ELSE PROVIDED PURSUANT TO THIS AGREEMENT CONSTITUTES OR IS INTENDED TO BE MEDICAL ADVICE OR A SUBSTITUTE FOR THE MEDICAL KNOWLEDGE OR JUDGMENT OF LICENSEE AND/OR EACH USER. The essential purpose of this provision is to limit the potential liability of a -MDs arising out of this Agreement. The parties acknowledge that the limitations of liability set forth in this Section and in this Agreement are integral to the amount of consideration levied in connection with the license of the Software and Documentation and any services provided hereunder and that, were a -MDs to assume any further liability other than as set forth herein, such consideration would of necessity be set substantially higher. 5.3. LICENSEE FURTHER AGREES THAT LICENSEE SHALL BE SOLELY RESPONSIBLE FOR ENSURING THAT ALL RECORDS OF MEDICAL CARE ARE ACCURATE AND COMPLETE, AND THAT ALL BILLING INFORMATION DELIVERED BY LICENSEE AND EACH USER TO ANY INSURANCE COMPANY, GOVERNMENTAL AGENCY, OR OTHER PAYOR IS ACCURATE AND COMPLETE. NEITHER LICENSOR NOR ITS VENDORS SHALL HAVE ANY RESPONSIBILITY AS A RESULT OF THIS AGREEMENT FOR DECISIONS MADE OR ACTIONS TAKEN OR NOT TAKEN IN RENDERING MEDICAL CARE OR FOR INFORMATION PROVIDED TO INSURANCE COMPANIES, GOVERNMENTAL AGENCIES, OR OTHER PAYORS unless and only to the extent it is shown that material errors in the software caused and are legally responsible for such events. I. Proprietary Rights Indemnity. 6.1. In the event that an action is filed in a court of competent jurisdiction alleging that Software used within the scope of the License infringes any United States proprietary right of any third party that is based upon neither the combination, operation or use of the Software with equipment, data or programming not supplied by e -MDs hereunder nor use of Software which has been modified or altered without the prior written consent of e -MDs (an "Infringement Action"), e -MDs shall defend Licensee against such Infringement Action, and e -MDs shall pay any and all resulting costs, damages, and attorney's fees finally awarded by a court of competent jurisdiction, provided that (a) Licensee notifies a -MDs in writing of such Infringement Action within ten (10) days, (b) e -MDs has sole control of the defense of such Infringement Action and all related settlement negotiations, and (c) Licensee provides all reasonable assistance, information, authority and cooperation reasonably requested by e -MDs. 6.2. In the event that any such Infringement Action is commenced or threatened, e -MDs may elect to (a) modify or replace all or part of such Software with software that substantially conforms to the functionality of original software, (b) obtain for Customer at e -MDs' expense the right to continue to use the infringing e -MDs product; or (c) if the foregoing are not commercially reasonable within sixty (60) days, refund to Customer the purchase price, as depreciated (based on five year's straight-line depreciation), for the e -MDs product that gave rise to the claim 6.3. The indemnification provided for in this paragraph shall constitute the entire liability of e -MDs and all providers of Third Party Software with respect to an Infringement Action. e -MDs, Inc. Washington Idaho REC ("W IREC") Customer Standard Terms and Conditions (Aug. 2011) Page 4 of 13 6.4. Licensee shall indemnify and hold e -MDs and each provider of Third Party Software harmless from any demands, claims or suits by any third party for loss, damages, or expenses (including attorney's fees) arising out of the use, duplication, distribution or creation of any derivative work of the Software and/or Documentation by Licensee or any other person in any manner not expressly allowed under the License or otherwise prohibited hereunder, based upon the combination, operation or use of Software with equipment, data or programming not supplied by e -MDs, or based upon use of Software modified or altered without the prior written consent of a -MDs. Support Services: 7.1. Subject to the payment of a -MDs' then current periodic Charges, a -MDs shall provide to Licensee support services for the Software during the period set forth in such License Order in accordance with e -MDs' then applicable standard maintenance and support policies and procedures. In the event that a -MDs does not meet the applicable material commitments set forth in this provision and in a -MDs Technical Support Guide (as the same may be amended from time to time), whichever provides the most favorable commitment to Customer, a -MDs agrees to proportionately credit Licensee's applicable Charges for maintenance and support for each day: that a -MDs fails to meet such commitment and for which Customer suffers an adverse material impact. a -MDs shall not amend its Technical Support Guide to reduce the level of support. e -MDs support commitment shall include (i) providing Licensee all standard updates, releases, new versions and enhancements to the Software per any standard charges set forth in the Agreement as may be applicable and for so long as Customer is in compliance with the Agreement; (ii) timely telephone consultation; (iii) timely telephonic or electronic response by qualified personnel to problems and issues reported by Licensee per the agreed standards, within two (2) hours of receiving the Licensee's contact; (iv) best efforts to assist with resolution within 24 hours of critical errors causing the Software or any major functionality of the Software to be non-functional or compromising the integrity or availability of Licensee data; and (v) prompt resolution of all other material errors. 7.2. Customer understands and agrees that the Agreement with a -MDs is for a -MDs to provide Software and related Software support services. Customer is solely responsible for: timely and properly providing and obtaining any and all information technology (IT) items (services and equipment), including without limitation hardware, software, connections, networking, database, etc.; and, the management and oversight of such items. Except for the limited and specific IT -related items specifically purchased from a -MDs on the Customer's Order or through subsequent written transactions with e -MDs, e -MDs does not and has not agreed to provide any such IT items. If requested by Customer, e -MDs may be able to offer consulting or IT related services at its then standard prices and terms and conditions to assist Customer. Although e -MDs may also be able to provide contact information to assist Customer in obtaining such IT services from third parties, Customer understands and agrees that a -MDs is not and will not be responsible for any such services and equipment that is provided to Customer either by Customer's own resources or by third parties. a -MDs will continue its good faith efforts to develop and maintain a business relationships with a local (Hawaii) IT support entity or otherwise maintain such a local resource through employees of e -MDs for such IT services as Customer may requested and purchased from such local entity or directly from e -MDs by Customer that are related to the Customer's use of the a -MDs Software. Payment Terms. 8.1. For the agreed fixed project Charges (with applicable sales tax to be added to each payment) under the Agreement, the Customer (Licensee) will pay (with the exception of Charges for support) e -MDs according to the following schedule and the mutually agreed initial project plan: 8.1.1. Twenty -Five Percent (25%) upon the Effective Date of the Agreement (the date the Customer on which Customer signs the Agreement, contingent upon acceptance by e -MDs and receipt by e -MDs of this full initial payment); 8.1.2. Twenty -Five Percent (25%) upon the agreed scheduled date for Software installation; 8.1.3. Twenty -Five Percent (25%) upon the agreed scheduled date for first productive use (the date the Software is first used for a customer of the Licensee) of the Software; 8.1.4. The remaining balance [Twenty -Five Percent (25%)] upon the achievement of forty-five (45) days of regular use by the Licensee without material error or defect which date shall be no more than sixty (60) days after the date scheduled for first productive use. 8.2. Upon the payment of such remaining balance, Licensee will be deemed to Accept the Software unless Licensee has notified e -MDs prior to that date in writing of a material problem justifying the Licensee's withholding Acceptance based upon details establishing that e -MDs is primarily responsible for and the cause of the non -Acceptance. The billing by e - MDs and payment by Customer for e -MDs out-of-pocket costs and any additional costs as expressly authorized in writing by Licensee are not addressed in the above payment schedule which only addresses the initial agreed fixed project costs. For all Customer payments that are linked or otherwise conditioned upon events occurring per the agreed initial project plan schedule, Customer shall pay in full the amounts due per this Agreement and such schedule except to the extent that any such events are delayed due to circumstances for which e -MDs is primarily responsible. 8.3. If e -MDs is late by more than ten percent (10%) of the then agreed time period at least three (3) separate times to fulfill any Project Plan major milestone through no fault of Customer and solely due to the fault of e -MDs, then Customer, within no more than thirty (30) days after the date of such third occurrence, may terminate this Agreement by: providing written notice to e -MDs of such decision to terminate; de -installing all Software provided by e -MDs; and returning all copies of the Software received from e -MDs. If Customer properly exercises this option to terminate in good faith within the time period specified, then e -MDs will provide a full refund of fees paid by the Customer for such Software. e -MDs, Inc. Washington Idaho REC ("W IREC") Customer Standard Terms and Conditions (Aug. 2011) Page 5 of 13 8.4. Customer is only obligated to pay or reimburse a -MDs for costs, fees, and expenses that are expressly agreed to or authorized at an agreed budget amount and set forth in the Agreement. If the out-of-pocket expenses related to the agreed initial project plan results in out-of-pocket expenses that are likely to exceed the agreed amount, e -MDs will timely notify Customer of that likelihood and will coordinate with Customer to mitigate the impact of such additional necessary expenses, if any. The Customer must pre -approve in writing any out-of-pocket expenses that exceed this estimated limit. Any subsequent material modifications to the initially agreed to Customer plan may impact the applicability of this provision. Maintenance and Support Fee: 9.1. In addition to the Charges for the License, you are required to pay Charges for maintenance and support for the Software. Payment of the Charges for maintenance and support is necessary for continued access to full functionality of the Software. 9.2. Each year Licensee will be billed for annual Charges for maintenance and support which Licensee must pay in advance prior to the Licensee's annual renewal date. 9.3. The price of any such as maintenance and support, set forth on Schedule A, shall not increase during the sixty (60) month period following the Effective Date by more than the greater of three percent (3%) or the percentage change in the Consumer Price Index All Items/Urban Consumers (CPI) for the preceding twelve (12) month period, each in the aggregate over the applicable time periods, and only to the extent no such increase(s) may have already occurred during the prior time periods. 9.4. On a regular basis a -MDs, at its discretion, updates information included in the Software, such as codes or medical libraries. The cost for these updates is covered by the annual Charges for maintenance and support. 9.5. e -MDs may elect to release additional software enhancements or features that offer additional functionality not included in the Software at the time of your initial License. 9.6. Subject to payment of the Charges for maintenance and support, upgrades to the Software subject to the License ) will also be made available to Licensee. 9.7. On the condition that the Customer maintains continuous and uninterrupted full compliance with the terms of the Customer's Agreement with e -MDs (including the Customer being current on all payments and charges due to e -MDs), e - MDs will allow the Customer the option to convert its then current standard Software licenses into the same number of applicable standard licenses for the a -MDs standard internet-based product or other new product release, once that product is made generally available to the public at no additional initial licensing charges to the Customer. Customer understands and agrees that Customer will likely have other costs and charges associated with any transition to the internet-based product, for example, including charges for: hosting, ongoing maintenance and support, software and services from third parties, training, and hardware that may be necessary for the Customer to properly use such new product. At the time such product becomes available, a -MDs will provide relevant information and requirements to help the Customer to decide whether to convert to such new product. 9.8. From time to time a -MDs may query Licensee's server remotely, or Licensee will be asked to certify to e -MDs the number of Providers currently using the Software, and permission for e -MDs to make such remote access is hereby granted. 9.9. Charges for maintenance and support will be pro -rated monthly for Providers or additional Software added during the reporting year, to adjust all annual Charges to Licensee's License anniversary date. Charges for continuing maintenance and support of the Software will be due each anniversary of the Effective Date of this License Order. 9.10. If the Licensee fails to make timely payment of the amounts due for undisputed Charges to the extent not disputed in good faith for more than 30 days beyond the invoice date, or if payment for maintenance and support is not received by the expiration date of the current support period, e -MDs has the right to suspend access to tech support resources until such undisputed payments are brought current and a -MDs may suspend shipment of updates and deny support service. 9.11. Updates to Software will be delivered to Licensee only after all amounts due for periodic Charges, to the extent such amounts are not subject to a good faith dispute, for maintenance and support are paid in full, subject to such terms and conditions as may be specified by e -MDs. 9.12. Interest shall accrue on any amount due, to the extent not disputed in good faith by Licensee, and payable hereunder and remaining unpaid for more than thirty (30) days (the "Principal Amount"), at a rate per annum which shall from day to day be equal to the lesser of (a) one percent and one-half (1.5%) per month for the actual number of days elapsed (including the first day but excluding the last day) until payment of the Principal Amount, or (b) the maximum rate of non - usurious interest permitted from day to day by applicable law. 9.13. All taxes, other than taxes based on the income of e -MDs, are the responsibility of Licensee Applicable sales tax will be added to all invoices where e -MDs is required to remit sales/use tax to the state or other taxing jurisdiction in which the end-user resides. 9.14. Licensee shall also be responsible for charges for shipping and handling of the Software. 10. Term and Termination: 10.1. This License Order and the License shall remain in effect from the Effective Date so long as Licensee and each User abides by the terms of this License Order and Licensee continues to pay all applicable Charges, unless otherwise e -MDs, Inc. Washington Idaho REC ("W IREC") Customer Standard Terms and Conditions (Aug. 2011) Page 6 of 13 terminated as provided herein. 10.2. Any non-payment of Charges constitutes a material breach of this License Order. 10.3. In the event that Licensee materially or repeatedly defaults in the performance of any of its duties or obligations hereunder, then, e -MDs may, by giving written notice thereof to Licensee, terminate this License Order and the License as of a date specified in such notice of termination. 10.4. Licensee may terminate this License Order at any time by giving written notice to e -MDs specifying the date of such termination. 10.5. Any breach of this License Order by Licensee, including allowing persons other than authorized Users to utilize the Software may result in a termination of the License or the assessment of additional Charges, at a -MDs' sole discretion. 10.6. Immediately following termination of the License, Licensee shall return to a -MDs all copies of the Software and related Documentation in Licensee's possession and certify that all existing copies of the Software and related Documentation have been returned or destroyed, and Licensee shall cease to use the Software. 11. Mutual Non Solicitation: During the term of the License and for a period of one (1) year thereafter, each party will not, directly or indirectly, on behalf of itself or any other person or entity, contact or attempt to contact any employee or individual independent contractor of the other party for the purpose of enticing him or her to terminate his or her employment and/or contract with the other party. 12. Additional Terms and Conditions 12.1. Customer Data; Termination Rights, Data Migration. Upon the effective date of any termination, the e -MDs Software does not contain any device that disables the Customer's ability to access the Software and the Software will allow Licensee to be able to continue to access historical patient data and other Licensee data that has been entered and saved within the Software database, and Customer understands that (equivalently to a -MDs limited obligation during the term of this Agreement) a -MDs is not responsible for any hardware or other responsibilities of the Customer or third parties that may impact the Licensee's ability to access the information. Upon any termination of this Agreement, the historical patient data and all other Customer entered data remain subject to the exclusive control and responsibility of the Customer and a -MDs shall have no property or other rights in such data. Additionally, upon any termination of this Agreement, a -MDs will in good faith reasonably assist Customer with any requested data migration/conversion upon written agreement by Customer to pay the then applicable standard charges of e -MDs to provide such services in the manner and time specified a -MDs, and so long as Customer is not in material non-compliance with Customer's obligations under this Agreement. If Customer finally terminates the agreement as a result of an uncured and unresolved material breach by e -MDs, e -MDs will provide data migration mapping details to the Customer (upon signing an appropriate non -disclosure agreement) at no additional charge. If the Customer's licensing rights to use the Software license are no longer valid and supported or exceed the authorized number of users, the Software contains regular warning reminders concerning such unauthorized use. These pop-up warnings in the Software are primarily to remind any user that the license is out-of-date and any and all continued use of the software is at the sole risk and responsibility of the user. For any such unsupported or unauthorized use of the Software, Customer is fully responsible for such use and for any and all damages that may result and for penalties that may be imposed. In addition, during any such use, the Software may lack required or recommended updates and enhancements, authorized support, and proper functionality, among other concerns. 12.2. For any patient data and other information entered into the Software by the Customer, e -MDs agrees that all such information does not belong to a -MDs and a -MDs shall not access or use any such information for any purpose other than as expressly authorized in writing by the Customer. a -MDs shall not sell such information or use it for any marketing purposes. To the extent not prohibited by law from doing so, e -MDs will provide to Customer any third party requests or demands for or related to any such information. 12.3. Customer may and should and e -MDs strongly encourages the Customer to develop and follow: (1) a Software back-up plan with off-site storage (at least weekly a full system backup, in addition to performing a full system database backup immediately prior to installing any upgrade (including enhancements or modifications of any kind) to the Software and each such pre -upgrade backup should be maintained until the date that is the later of: twelve full months from the date of the installation of the upgrade to the Customer's Software or six months after the next such upgrade), and an annual full database backup for each calendar or fiscal year as applicable, and (2) a disaster recovery plan for the Customer's use of the Software and related operations. To the extent Customer does not have and maintain at least such minimum recommended full database backups, Customer understands a -MDs is not in any way responsible for: any damages and inconveniences resulting from such failure; and, including any damages or inconveniences that would have been mitigated with such recommended minimum back-ups. Although e -MDs does not provide such services, Customer should consult with Customer's own IT staff or contractors and consultants to develop an appropriate back-up plan and disaster recovery options for the Customer's operations related to the Software. e -MDs agrees that Customer may copy and image the applicable e -MDs Software database(s) as reasonable and appropriate only for such backup and recovery purposes. Customer agrees to keep an accurate accounting of all copies and backups of the Software made and to provide e -MDs with such accounting upon request. Customer is responsible that any third party providing such services to Customer abides by and complies with the Customer's obligations under the Agreement. 12.4. Prior to making any changes (hardware, software, connections, networking, etc.) to your system, Customer agrees to e -MDs, Inc. Washington Idaho REC ("WIREC") Customer Standard Terms and Conditions (Aug. 2011) Page 7 of 13 contact e -MDs to reduce any likelihood that the change might adversely impact the Customer's use of the e -MDs licensed product and to allow a -MDs to provide input about the method and manner of implementing the change to assist the Customer's transition and mitigate any time and/or expenses that may result from such a change. 12.5. a -MDs will act as the first point of contact in resolving any dispute between Licensee and any third parties from whom Licensee has licensed Third Party Software by way of the License Order. 12.6. Force Majeure. Each Party shall not be liable to the other for any delay in, or failure of performance, of any requirement included in this Agreement if and to the extent caused by force majeure. Force majeure is defined to be those causes generally recognized under state or federal law as constituting impossible conditions, including but not limited to, unusually severe weather, acts of God, war, fires, epidemics, explosions, hurricanes, floods, failure of transportation, court orders, or other causes that are beyond the reasonable control of either party and that by exercise of due foresight such party could not reasonably have been expected to avoid, and which, by the exercise of reasonable due diligence, such party is unable to overcome, provided that the party experiencing the force majeure event has prudently and promptly acted to take any and all steps that are within the party's control to ensure performance and to mitigate the impact of such event. The party suffering such an event will provide notice of the event to the other party when commercially reasonable. The existence of such an event shall extend a party's time to perform provided the impacted party exercises all reasonable due diligence to perform. 12.7. For any charges to the Customer for annual maintenance and support for any subsequent purchases or for other products with annual charges, such annual charges will be pro -rated for the remaining full months until the Customer's next occurring annual renewal date so that all of Customer's existing Software licenses will have the same annual renewal date, and then the full amount of such annual charges will be assessed at that time for any such additional licenses and interfaces. 12.8. Notifications of Concerns. If Customer identifies or perceives any concerns with the performance of the Licensed Software or of a -MDs, Customer shall in writing notify e -MDs of any such concerns. If and only to the extent that e -MDs is responsible for the concern, a -MDs will be responsible to promptly resolve or remedy the concern to ensure that the Licensed Software is capable of performing as specified. To the extent a -MDs determines that any such concern is not within the responsibility and control of a -MDs, a -MDs will notify Customer of such determination along with any details that e -MDs may be able to provide to the Customer about the concern and other possible causes. 12.9. Substantial Performance and Disputed Obligations. Each party's substantial performance of its obligations under this Agreement shall be deemed full performance. Substantial performance shall mean that all material obligations and duties are complied with promptly even though some nominal or immaterial deviations from the required obligations or duties may exist. When either party has an obligation to perform a task, such party shall fully perform any such obligation to the extent that the obligation is not disputed in good faith. To the extent that an obligation is in such a good faith dispute, the parties agree not to apply any penalties or take further action until and to the extent that the dispute is resolved through mutual agreement or legal action. 12.10. Electronic Participation. To the maximum extent allowable and possible under the applicable rules and laws and to minimize each party's costs and expenses, the parties agree to use their best efforts to allow all dispute resolution (mediation, arbitration hearings or other legal proceedings) proceedings to occur through electronic means and for each party to participate by telephonic or other electronic means so as to not require the physical presence of any or all parties at any particular location for any such proceeding. 12.11. Each Party Responsible for the Party's Own Legal Fees. Except with respect to the indemnification obligations provided for in the Agreement, this Addendum or the Business Associate Agreement, in the event of any dispute or controversy between the Parties in connection with or related to this Agreement or this Addendum, or in connection with the interpretation or enforcement of any provision hereof or thereof, each party in such dispute or controversy will be responsible for its own legal fees (including attorneys' fees) and related costs unless the tribunal or finder of fact makes some other allocation of reasonable and necessary attorneys' fees and the related costs. 12.12. Severability. To the extent any term or condition in the Contract conflicts with the applicable Washington and/or United States law or regulation, such Contract term or condition is void and unenforceable. By executing a contract which contains the conflicting term or condition, e -MDs makes no representations or warranties regarding the enforceability of such term or condition and e -MDs does not waive the applicable Texas and/or United States law or regulation, if any, which may conflict with a Contract term or condition. If any part of any clause or provision of this Contract, or the application of any term or condition to any party or circumstance, is held invalid, unenforceable, or illegal in any respect under present of future laws by a final judgment or order of a court of competent jurisdiction, then it is the intention of the parties that the remainder of this Contract shall not be affected and that, to the extent of any such invalidity, illegality, or unenforceability, there be added as a part of this Contract a clause or provision of similar terms as may be legally possible in order to make the prior intent of such clause or provision legal, valid, and enforceable. 12.13. Contract Enforcement; No waiver. Either party's failure or delay to strictly enforce any provision of this Contract or rights protected under or related to Contract does not waive or otherwise diminish that party's right to otherwise enforce that provision or any other provision of the Contract, or of such right or any other right. 12.14. This Agreement, including all Exhibits, may not be changed, modified or altered in any manner except by an instrument in writing executed by authorized representatives of both Parties. 12.15. At any time during the Software Maintenance Term, should e -MDs make an End -of -Life Announcement (as hereafter defined) for the applications Client has purchased and which are governed by this agreement, e -MDs agrees that Client e -MDs, Inc. Washington Idaho REC ("W IREC") Customer Standard Terms and Conditions (Aug. 2011) Page 8 of 13 may exchange each such affected product license for a similar license in an Equivalent Product (as hereafter defined), subject to the following conditions: 12.15.1. "End -of -Life Announcement" shall mean a public announcement, press release, or consumer -wide communication by e -MDs indicating a -MDs' intent to sunset a Software application 12.15.2. "Equivalent Product" shall mean a product with substantially similar features and functionality as the affected product on the date such affected product was sunset. 12.15.3. To qualify for an exchange pursuant to this Section, Customer must have and continue to remain in continuous material compliance (including timely making all payments due to a -MDs) under this Agreement. Customer understands and agrees that Customer will likely have other costs and charges associated with any transition to any such Equivalent Product, for example, including charges for: hosting, ongoing maintenance and support, software and services from third parties, training, and hardware that may be necessary for the Customer to properly use the internet-based product. At the time such product becomes available, e -MDs will provide relevant information and requirements to help the Customer to decide whether to convert to the internet-based product. 12.16. As of the Effective Date of this Agreement, a -MDs is not aware of any currently pending litigation against a -MDs that will materially impact a -MDs ability to fulfill its obligations under this Agreement. 12.17. As of the Effective Date of this Agreement, the Customer(Licensee) is not aware of any currently pending litigation against Customer that will materially impact Customer's obligations ability to fulfill its obligations under this Agreement. 12.18. a -MDs shall cooperate in good faith and per mutually agreeable terms with reasonable and appropriate Third Party Vendors or Client contractors and developers who wish to interface with the Software. 12.19. a -MDs will provide qualified personnel in adequate numbers to maintain the scheduled timeline for each task, as designated in the Implementation Work Plan. a -MDs will assign a project manager to Licensee's implementation, who will have at least 1 to 2 years of experience with similar implementations, and who will remain on the project through Acceptance unless Licensee requests such personnel be changed, or in the event that such personnel departs e -MDs. Licensee may review the qualifications and references of all implementation staff assigned to Licensee's installation, and may refuse the services of any personnel Licensee deems to be of insufficient experience; provided, however, that Licensee accepts responsibility for any delays in implementation caused by such refusal. 12.20. e -MDs and Customer shall cooperate to develop, within one month of the Effective Date of the Agreement, an agreed scheduled project plan which shall identify implementation tasks and a timeline for completion of implementation. To the extent applicable to and requested by the Customer, the implementation services shall address the migration and conversion of existing Licensee data to the a -MDs system, and shall clearly define what data or record will be converted and any additional equipment or software requirements needed for conversion. e -MDs and Customer will in good faith work together to identify and agree to the specific training resources, as well as any other resources, necessary for Customer to become a successful user of the Software. Customer agrees to engage in good faith efforts to successfully complete the training resources and other guidance provided by e -MDs. 12.21. The Customer may reschedule training resources at no charge so long as Customer provides the required notice of the need to do so to e -MDs within the grace period stated in the attached "Training Rescheduling Policy" (June 2011 version), and Customer understands and agrees the rescheduling fees will apply as applicable to any training resources that the Customer must reschedule on shorter notice than the grace period according to this policy. 12.22. Customer understands and agrees that the Customer's personnel who are to use the Software should be adequately trained and capable of using the Software and associated hardware. The Parties agree to engage in good faith efforts to allow Customer to designate specific staff members to become knowledgeable and capable users of the e -MDs Software. For any and all training (including Go Live support) to be provided at any Customer location or online training as may be purchased by the Customer, a -MDs agrees to allow Customer's designated staff members to observe and shadow the a -MDs' trainer at no additional cost to Customer, and e -MDs agrees not to limit this option available to the Customer throughout the term of this Agreement. For any such staff person, e -MDs agrees to provide good faith input as to the person's apparent understanding of the Software and capacity to train others. Customer understands that if any additional training services or other services are required, the Customer will need to purchase such services at the then applicable rates of e -MDs. This provision does not in any way restrict Customer's ability to elect to purchase any training resources available from e -MDs. 12.23. If at any time in the future Customer needs to have any new staff person(s) trained by e -MDs or existing staff members receive additional training, the Parties agree in good faith to establish a program to allow any such person to participate in classroom or online training (at the Customer's sole cost and expense) and on-site training sessions (at Customer's sole cost and expense) of Customer or of other customers of e -MDs, if and to the extent that may be reasonable and also expressly permitted by the other customers of e -MDs. 12.24. if e -MDs (in its reasonable discretion) determines that the Customer is inordinately or excessively utilizing the standard annual support services provided to Customer directly by individual staff members of e -MDs, e -MDs will have the option to recommend that the Customer purchase training services and other services as may be appropriate for the Customer's personnel to more efficiently and effectively use the e -MDs Software. If the Customer declines to receive and participate in good faith in any such recommended services, e -MDs may prospectively (in its reasonable discretion) set reasonable limits on the amount and manner in which the Customer may request and e -MDs may provide such services to be performed by individual staff members of e -MDs to the Customer. e -MDs, Inc. Washington Idaho REC ("W IREC") Customer Standard Terms and Conditions (Aug. 2011) Page 9 of 13 12.25. Upon written request from Licensee and contingent on a good faith written agreement with Licensee to do so, e -MDs agrees to provide on-site support upon Client request to facilitate problem resolution during a major crisis if problem cannot be resolved over the phone or via electronic communication. Licensee must sign any required Order form and make any payments as required to obtain such services at a -MDs then applicable rates and Licensee will be obligated to pay applicable authorized travel expenses incurred by e -MDs. 12.26. Additional Software licenses, Services, interfaces, and a -MDs Patient Portal can be licensed/purchased at same discounted price specified in the then applicable Order Form, for the period during which e -MDs continues to participate as a qualified WIREC vendor and during with Licensee also participates as an eligible participant in the WIREC. 12.27. Neither party may assign the License Order without the written consent of the other party, which consent shall not be unreasonably withheld; provided, however, that either party may assign the License Order in connection with a merger or acquisition in which the assigning party is not the surviving party or a sale of all or substantially all of the assets of the assigning party. Prior to any assignment by Licensee becoming effective, (i) Licensee shall notify e -MDs prior to any such assignment of its desire to assign this License Order, and of the identity of the proposed assignee and such other information as may be reasonably requested by a -MDs with respect to such proposed transaction, (ii) the Customer must be in full and current compliance with all of its obligations and payments to a -MDs as of the effective date of any such assignment, and (iii) Customer and the applicable assignee shall in writing ratify and confirm their assignment and the assignee must accept (in writing to a -MDs) all existing and future obligations under the Agreement. 13. Additional Dispute Resolution Provisions: 13.1. In the event of any disagreement regarding performance under or interpretation of this License Order and prior to the commencement of any formal proceedings, the parties shall first attempt in good faith to reach a negotiated resolution by designating a private mediator to resolve the dispute through non-binding mediation, provided that e -MDs may suspend performance in the event of any dispute. 13.2. In the event that the dispute is not resolved through mediation within 90 days, the dispute shall be resolved through binding arbitration in accordance with the then -current commercial rules and procedures of the American Arbitration Association (the "AAA") before a single private arbitrator in private proceedings in Seattle, WA. 13.3. The parties shall act in good faith to reach agreement on the selection of such arbitrator, but either party may request that the AAA appoint one (1) arbitrator, taking into consideration the unique aspects of this License Order relating to the medical profession and the computer software industry. 13.4. The arbitrator shall apply the laws of the State of Washington and the United States of America, without reference to rules of conflict of law or statutory rules of arbitration. Judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. 13.5. The parties agree that, any provision of applicable law notwithstanding, they will not request, and the arbitrator shall have no authority to award, punitive or exemplary damages, or attorney's fees against any party. 13.6. Notwithstanding the foregoing, claims by e -MDs or any provider of Third Party Software regarding e -MDs' or any such third party's proprietary rights in the Software, Documentation, a -MDs Information or any other materials provided by e - MDs to Licensee, or actions seeking to prevent disclosure or recover possession of the Software, Documentation, e -MDs Information or any other materials provided by e -MDs to Licensee may, at e -MDs' option, may be pursued in a judicial proceeding in any venue and court of competent jurisdiction in which injunctive or other equitable relief shall be appropriate. 13.7. In the event that any party is required to secure the services of an attorney in order to enforce any right or obligations hereunder, the prevailing party shall be entitled to recover reasonable attorneys' fees and court costs from the other party. 13.8. This License Order shall be governed by and construed in accordance with the laws, other than choice of law rules, of the State of Washington and the United States of America. 14. Entire Agreement: 14.1. This License Order constitutes the entire agreement between the parties with respect to the subject matter hereof, and there are no written or oral representations, understandings or agreements relative hereto that have been relied upon by Licensee and that are not fully expressed herein. 14.2. This License Order, including the terms of the License, supersedes all prior arrangements and agreements between e - MDs and Licensee with respect to the Software, whether previously delivered or delivered pursuant to this License Order. 14.3. This License Order is intended to be the sole and exclusive statement of the agreement between the parties hereto with respect to the subject matter hereof, and any other terms or conditions included in any order, acceptance or other document provided by Licensee shall be of no force or effect and shall not be incorporated herein or be binding unless expressly agreed to in writing by both parties hereto. This License Order supersedes any prior license or other agreement between the parties relating to the Software, except for any prior approved addendum executed in writing by e -MDs. 14.4. No change, waiver or discharge hereof shall be valid unless in writing and signed by an authorized representative of the party against which such change, waiver, or discharge is sought to be enforced. e -MDs, Inc. Washington Idaho REC ("WIREC") Customer Standard Terms and Conditions (Aug. 2011) Page 10 of 13 15. Notices: Any notice required to be given hereunder shall be delivered by confirmed overnight courier or certified mail, return receipt requested to either party at the address set forth in the License Order or such other address as may be specified by e -MDs by notice to its customers via website, e-mail or other dispatch or by Licensee by written notice to e -MDs as provided for above. The Customer, through the undersigned duly authorized representative of the Customer, acknowledges receipt of an electronic copy of the initial Order and this Agreement and understands and agrees to this Agreement which is effective contingent upon acceptance by a -MDs and receipt by a -MDs of the full required initial payment(s) required under the +Order t Agreement, following the date on which the Customer signs and agrees to this Agreement: ublic Health Date cated in Port Townsend, WA horized Representative of Customer Printed Name & Title of Customer's Representative Approved as to form Only: 91-7) zo) 2_ loffon n Co. Prosecutows Office e -MDs, Inc. Washington Idaho REC ("W IREC") Customer Standard Terms and Conditions (Aug. 2011) Page 11 of 13 Attachment A: Training Rescheduling Policy [June 20111 For any training resources that the Customer needs to reschedule or cancel, the following policies apply: If a Customer needs to reschedule a previously -scheduled training resource, e -MDs will cooperate with the Customer to reschedule the training at a mutually convenient agreed time. The Customer understands that any such rescheduled resources will likely not be given priority over other already -scheduled resources. As part of our good faith efforts to assist our customers, a -MDs allows customers to reschedule any training resource without incurring any additional charges if the Customer notifies a -MDs in writing (via the below email) of such a request at least the stated full days in advance of the scheduled start time and date of the training resource. To reschedule any previously scheduled training resource, Customer must submit a written email request to e -MDs at scheduletraining(@e-MDs.com that specifies the time(s) and date(s) of the training resource(s) that the Customer needs to reschedule. Once e -MDs receives such a request, a -MDs will contact the Customer to reschedule the training resource. Customer understands that a -MDs commits internal resources (time and/or monetary) as soon as a training resource is scheduled and the amounts of such internal committed resources increase the closer in time that the training resource is scheduled to start. Whenever a Customer requests to reschedule a training resource, a -MDs incurs additional costs, some of which are not easy to quantify. To help cover the costs of such internal resources, a -MDs does require Customer to pay an additional fee to reschedule (or cancel) any training resource when the Customer makes such a rescheduling request less than the stated full calendar days in advance of the scheduled start time of the training resource. For any training resource(s) Customer requests to reschedule less than the stated number of full calendar days in advance of the scheduled start time of the training resource, the Customer will be required to pay a rescheduling fee that is calculated based upon the following charts: TRAINING RESCHEDULING FEE for Training Resources Delivered at the Customer's Designated Location Time in Advance of the Scheduled Start Time of the Training Resource that Customer emails Rescheduling Request to e -MDs Rescheduling Fee Based Upon the Applicable Price of the Training Resource(s) to be Rescheduled At least Thirty -Two Calendar Days No Rescheduling Fee 22 — 31 Calendar Days 25% [Twenty -Five Percent] 12 — 21 Calendar Days 50% [Fifty Percent] 0 — 11 Calendar Days 100% [One Hundred Percent] TRAINING RESCHEDULING FEE for Training Resources to be provided either on-line or at the a -MDs Facility in Austin, Texas Time in Advance of the Scheduled Start Time of the Training Resource that Customer emails Rescheduling Request to e -MDs Rescheduling Fee Based Upon the Stated Percentage of Applicable Price of the Training Resource(s) to be Rescheduled At least Twenty -Two Calendar Days No Rescheduling Fee 15 — 21 Calendar Days 25% [Twenty -Five Percent] 8 —14 Calendar Days 50% [Fifty Percent] 0 — 7 Calendar Days 100% [One Hundred Percent] e -MDs, Inc. Washington Idaho REC ("W IREC") Customer Standard Terms and Conditions (Aug. 2011) Page 12 of 13 Training Resource Applicable Price to Rescheduling Fee Field Trainer provided training resources at the The contracted rate per reserved Field Trainer per Customer's designated location. day Facility Training (at e -MDs primary location in Austin, Texas) for on-site training resources to be The contracted rate per reserved facility classroom provided at the e -MDs facility in Austin, Texas seat per day On-line training provided by an a -MDs trainer The contracted rate per scheduled on-line training hour If Customer provides written details to a -MDs of an extraordinary circumstance that is beyond the reasonable control of the Customer, a -MDs will consider waiving any rescheduling fees that might otherwise apply. For any training resource that the Customer requests to reschedule for a date that is more than one year after the Customer's original agreement to purchase the training resource, the Customer will be required to pay an amount that is equal to the increase, if any, in then standard applicable cost of the training resource. To the extent, if any, a -MDs is able to re -assign and fulfill any training resource (that the Customer requested to reschedule) during the original time scheduled for the resource (and receive payment for at least the same rate as the Customer who rescheduled agreed to pay), a -MDs may elect to reduce the Customer's applicable charged rescheduling fee, if any, however e -MDs expressly reserves the right to withhold the amount of any un -reimbursable out-of-pocket expenses, such as airline change fees or other expenses incurred due to any Customer rescheduling request that occurs less than the stated calendar days in advance of the date of the applicable training resource. Definitions: "Time Period in Advance" is the actual number of days and full hours in advance of the scheduled start time of the training resource. Days are calculated based upon full calendar days (each being twenty-four hours) and any partial hour portion of time is counted as a full hour for calculating the time in advance. "Price of the Training Resource" is the applicable charge for the time of the particular a -MDs training resource that the Customer agreed to purchase. "Training Resource" includes the following types of training provided by or on behalf of e -MDs to the Customer: at the Customer's designated location; at a mutually agreed location; at an a -MDs facility; and through on-line training sessions. e -MDs, Inc. Washington Idaho REC ("W IREC") Customer Standard Terms and Conditions (Aug. 2011) Page 13 of 13 Addendum to Customer Software License Order Agreement This Addendum amends the Customer Software License Order Agreement (including the Business Associate Agreement, which are collectively referred to as the "Agreement"), which is dated July 12, 2012 (date prepared), that exists between e -MDs, Inc. (e -MDs) and Jefferson County Public Health ("Customer" and "Licensee"), located in Port Townsend, Washington. The Customer and a -MDs are the Parties to the Agreement and this Addendum. The provisions in this Addendum will control to the extent of any conflict with the terms and conditions in the standard Agreement (expressly including the Business Associate Agreement) of e -MDs. Customer and a -MDs agree to the following modifications to the Agreement due to the unique circumstances of the Customer: 1. Extension of Limited Warranty and Understanding of Limitation of Liability. a -MDs agrees to extend the term of its standard limited warranty for the initial one year term and each one year renewal term as follows: the e -MDs Software (other than Third Party Software) will perform substantially in accordance with the specifications for such Software set forth in the applicable e -MDs' Documentation, for so long as Customer: (1) complies with the applicable system configurations; (2) remains in continuous full material compliance with this Agreement and this Addendum (which includes continuing to timely pay all applicable Charges, including for maintenance and support); and, (3) timely installs all applicable updates and enhancements as provided by e -MDs; and (4) timely complies with reasonable requests and instructions from a -MDs related to the use and operation of the a -MDs Software. If e -MDs is unable within a reasonable period of time to correct or otherwise resolve any material issues and material defects covered under the warranty that may occur may occur during this warranty period as required by the stated warranty, then the parties may mutually agree to terminate the license agreement and a -MDs will return any payments made in advance on the applicable licenses for services (including but not limited to maintenance and support) not yet received and will also return any initial license payments that may have been made by Customer and received by e - MDs for the a -MDs Software in the twelve month period immediately prior to the date of the unresolved non- compliance with this warranty. An essential purpose of this provision is to limit the potential liability of e -MDs arising out of this Agreement. The Parties acknowledge that the limitations of liability set forth in this provision and in this Agreement are integral to the amount of consideration levied in connection with the license of the Software and Documentation and any services provided hereunder and that, were a -MDs to assume any further liability other than as agreed in the Agreement and this Addendum, such consideration would of necessity be set substantially higher. 2. Part -Time Provider Licenses. As part of this Agreement, a -MDs has provided to Customer a current total of Three ("3") Part -Time Provider Licenses (each a PTP License) for the same number of part-time provider(s). Customer is only authorized to use each such PTP License in compliance with the Agreement and this Addendum. Customer agrees: (1) that Customer will ensure that each such individual authorized PTP License will only be accessed/used for not more than sixteen (16) hours per week and may not be shared by providers that would result in the access/use of any individual PTP license in excess of such sixteen hour time limit per week; (2) each such provider PTP License will, except as modified in this provision, be used in full compliance with the Agreement. 3. At any time and to the extent that any of the special licenses provided to the Customer (including those identified in this Addendum) is used in a manner that exceeds these agreed conditions, Customer agrees to: (1) promptly notify e - MDs of such use; (2) the applicable License will be upgraded by the parties to the applicable full standard license; and (3) to promptly pay the then current applicable standard e -MDs retail price for such a full license, as well as any other necessary standard charges, such as for maintenance and support, that may then apply and as may be requested by e -MDs related to such license upgrade and the actual past and current use of the license by the Customer. e -MDs reserves the right at its reasonable discretion to audit Customer's use of each authorized license. 4. For any charges to the Customer for annual maintenance and support for any subsequent purchases of items with annual fees or for other products with annual charges, such annual charges will be pro -rated for the remaining full months until the first day of Customer's next occurring annual renewal period so that all of Customer's existing Software licenses and related items will have the same annual renewal date, and then the full amount of such annual charges will be assessed at that time for any such additional licenses and other items. 5. Customer understands and agrees that the Customer's Providers and all other all other personnel who are to use the Software must be adequately and sufficiently trained and capable of using the Software and associated hardware. Customer will engage in commercially reasonable best efforts to comply with this obligation. Customer understands that if any additional training services or other services are required, the Customer will need to purchase such services at the then applicable rates of e -MDs. 6. If at any time in the future Customer needs to have any training provided by e -MDs for new or existing staff of the Customer, the Parties agree in good faith to establish a program to allow any such person to participate in classroom or online training (at the Customer's cost and expense) and on-site training sessions (at Customer's cost and expense) of Customer, or on-site at other customers of e -MDs, if and to the extent that Customer may be reasonably and also expressly permitted to do so by such other customer. 0 2012 e -MDs, Inc. Jefferson County Public Health (Port Townsend, Washington) (July 2012) Page 1 of 2 V e.Mos Won* encxOI the Customer to Oveliop and foliadar: (1) a Software baa -tip pian (at feast weekht is lull system backup, In ad"on to performing a full system database backup immediately prior to Installing any uOgrade (includingenlurtoemontS or rrtOVIO i0ft o1 any kinM to the Software end each such pre-itpgrads backup sho�ld be, matrttaitwd unit.the. date that is i#te tMr of- after tht; .nSort such u efull onths from the date Of the installation of the upgrade ito the CuatahltI SOMI or six MOI after and (2) a dlsaster•r000very plan for the Customer's use of the Saute and reload operations. Ta the extent Customer does not have and maintain at fuel such minimum recaofflawded fust dstebaee baa *qn, Customer understands aI is aot in any way responsible for any damages ant tncornr&ftnces re9n111ing from Such failure; and, including any damages or ihoohveniences that!would tove been, mwith such recommended mitt num Basic -ups. Although a -MDs does not provide such selvices, �a< a onsulf with Cas own 1T'staff or contmAtors and cona*aMs to develop an approptfatei bagr- .uP pian alta diger recovery opts for the Custdmeft operations ruled to the Sottvoure. e -MDs 0 That customer may OM and III the doable e4ADs Software database(s) as reesoneMe and appropriate, 0. y for srAM backup end ►eeor+W per- OUSMW agrees to keep an accurate accounting of aR copies and backlps of ttfe'%ftware made VW to pmi& a -MDs with such accounting upon request. C,usbmei� Is responsible to require that any turd party providing such sef vices to Ct t ner abides by aW complies vvttit the Customer's obligations under the AWSMent. For, any ISMS thatmay arise related 1-0any data conversion/migratioMhterfaoe effort purchased by Customer from e- MI3s at provided by a•Mos tp the OJSMW under this Agreement, Customer agrees SW Understands: (1) 0 -MDs obligation for soy part of ear h aI eiforl *0 fa not matedelly successful WN be limited to the prbporliorr of the Aigreed tee for such e1 so 0 titer part of the `specific effort that is not aocomplidw wthin the matecial,:paramet rs df the S cations for the pardCalar effort errors are which such erroare alae result of issues wtttttru the iaomial and responsibility of e-LAbe and tom.&* to other Era riaMet arta &Ube will menta ore flood faith effort to towtve.ert' such errors at no additional -host to Cn*Vw., (2) K the event the Specific effort I& not mat>ariagy completed in co ODW #0 mwdmu wEth the wed:�, it radponsibitlty oc e•Mi7s under any circumstances va'ti be to refold the applicable cheryrt cx tt�s rftfcrt pfd by Customer and received by e-Mf3s up to lite full amount of the" f greed charge(pkothe aW UK. it arty)tar the specific conversion/migradWmenwe effort; and, ($) edVlDs will only be suety responsible to. refund BOY aht0unt if a -Mbar Is primarily resportsibte for the problem. S. if Cuatomer identifies or parce[tres any cons with the performance M the Urensed Software or of 4 -MDs, Customer #hall 1h MOV 601lfj► a~MOV of any such concerns. If and only to'the extent' that•e=MDs is responsible for the concern. e -MDs WO be iespoAsible t4. promptly resolve or, remedy the concern to entire fust thI Lr¢ensed Software Is capable Of petfor'a as SpecI To the extent e4ADs deterrmirtes that any such concern Is Mt within flue respdx3aib' VW car�rrol tpf b -MDs, .e-AAi?s wilt in writing rnotify t;ustomea of such de>pmnlrtation atony with any details that a-Iv1»& maybe olaI provide to the Customer about the concern and other possible =Ms. i 10. Each party's uOtentfal per#Dnttano of OS gblO&*ns tttnier this Agreement shah be deemed tuff pwDrtoarice. Suintantlei pepe� g Shall mteart"all material Wigations and.duties are corVWO with promptly even though some nominal! tar irnMeterlat,dwWons from tine requ irgd pbilgations or duties may exist. When eaher party has an ooWgdo . tp perform a task, such party shall -'ally perform any such obitgatidm to the extent that the ot>lWorl is not disputed in good faith. To the extent that an bblolon Is In such a good•falth' dispute, tt* parties agree not -t4 apply >� 0enal6e9 or take further aOW uMtl and to the extent that the dispute is resdived through inutual agreement or legal action. The parties (e4ADs turd CustomMrj to thls Adder4pm acknowledge and agree that all other terms and corx"Ons of the ,kWeement shall reQ►tun In ful fame and effect. The Customer, through the undersigned duly authorized reprewtoive of the Customer. acknoAsogeseecopt of an electronic copy of the Agreement end this Addendum, The undersk mad duly authorized respective represeriatEvea d each petty agree to this Addendum which Is eftealve as of the Effective ate of tate Agreement 9 -MDS, Mc. lista Vice Presideril d ,a e• Ds, Inc. D e Ghlei Finandid officer e 7012 e•MDs, Iva. (Port Townsend, Washingfon) Authorized Representadys Printed Nafne & Title of Customer's Representative Approved as to fonn =jY% kllerson county irealth EPoA �owae wasignDsol+) taut 2o12)Page?2 of 2 AAft t'fbt+aon Co. Frosoattor's ce e -MDs strongly encourages the Customer to develop and follow: (1) a Software back-up plan (at least weekly a full system backup, in addition to performing a full system database backup immediately prior to installing any upgrade (including enhancements or modifications of any kind) to the Software and each such pre -upgrade backup should be maintained until the date that is the later of: twelve full months from the date of the installation of the upgrade to the Customer's Software or six months after the next such upgrade) and (2) a disaster recovery plan for the Customer's use of the Software and related operations. To the extent Customer does not have and maintain at least such minimum recommended full database backups, Customer understands a -MDs is not in any way responsible for: any damages and inconveniences resulting from such failure; and, including any damages or inconveniences that would have been mitigated with such recommended minimum back-ups. Although a -MDs does not provide such services, Customer should consult with Customer's own IT staff or contractors and consultants to develop an appropriate back- up plan and disaster recovery options for the Customer's operations related to the Software. e -MDs agrees that Customer may copy and image the applicable a -MDs Software database(s) as reasonable and appropriate only for such backup and recovery purposes. Customer agrees to keep an accurate accounting of all copies and backups of the Software made and to provide e -MDs with such accounting upon request. Customer is responsible to require that any third party providing such services to Customer abides by and complies with the Customer's obligations under the Agreement. 3. For any issues that may arise related to any data conversion/migration/interface effort purchased by Customer from e - MDs or provided by e -MDs to the Customer under this Agreement, Customer agrees and understands: (1) e -MDs obligation for any part of each such effort that is not materially successful will be limited to the proportion of the agreed fee for such effort attributable to the part of the specific effort that is not accomplished within the material parameters of the specifications for the particular effort and for which such errors are the result of issues within the control and responsibility of a -MDs and not due to other variables, and a -MDs will make one good faith effort to resolve any such errors at no additional cost to Customer; (2) in the event the specific effort is not materially completed in compliance with the specified parameters, the maximum responsibility of a -MDs under any circumstances will be to refund the applicable charge for the specific effort paid by Customer and received by a -MDs up to the full amount of the agreed charge (plus the applicable tax, if any) for the specific conversion/migration/interface effort; and, (3) e -MDs will only be responsible to refund any such amount if e -MDs is primarily responsible for the problem. 9. If Customer identifies or perceives any concerns with the performance of the Licensed Software or of e -MDs, Customer shall in writing notify a -MDs of any such concerns. If and only to the extent that e -MDs is responsible for the concern, a -MDs will be responsible to promptly resolve or remedy the concern to ensure that the Licensed Software is capable of performing as specified. To the extent a -MDs determines that any such concern is not within the responsibility and control of a -MDs, a -MDs will in writing notify Customer of such determination along with any details that e -MDs may be able to provide to the Customer about the concern and other possible causes. 10. Each party's substantial performance of its obligations under this Agreement shall be deemed full performance. Substantial performance shall mean that all material obligations and duties are complied with promptly even though some nominal or immaterial deviations from the required obligations or duties may exist. When either party has an obligation to perform a task, such party shall fully perform any such obligation to the extent that the obligation is not disputed in good faith. To the extent that an obligation is in such a good faith dispute, the parties agree not to apply any penalties or take further action until and to the extent that the dispute is resolved through mutual agreement or legal action. The parties (e -MDs and Customer) to this Addendum acknowledge and agree that all other terms and conditions of the Agreement shall remain in full force and effect. The Customer, through the undersigned duly authorized representative of the Customer, acknowledges receipt of an electronic copy of the Agreement and this Addendum. The undersigned duly authorized respective representatives of each party agree to this Addendum which is effective as of the Effective Date of the Agreement: m-- 8 w e -MDs, Inc. Date Jeffer n County Public Health Date Vice President of Sales ("Cu mer") (Port Townsend, Washington) Signature of Authorized Representative e -MDs, Inc. Date '5oki I Shy) ,_Cy G 1 Y Y t&o Chief Financial Officer Printed Name & Title of Customer's Representative Approved as to form only: © 2012 e -MDs, Inc. Jefferson County Public Health (Port Townsend, Washington))July 2012) Page 2 of 2 too Jefferson Co. Prosecut s Office License Order 9900 Spectrum Drive Austin, TX 78717 P: (888) 344-9836 www.e-MDs.com Prepared By: Dave Beatty Direct Line: 360.601.7007 e -Mail: dbeatty@e-mds.com Fax: 360.838.8088 Licensee: Jefferson County Public Health Address: 615 Sheraton City: Port Townsend e -Mail: ibaldwingco.iefferson.wa.us REC Pricing Applied Software Licenses Per Provider (MD, DO, PA, NP, etc.) e -MDs Solution Series Includes: Chart, Bill, DocMan, Schedule, Tracking Board, TaskMan, E&M Coding, ICD Coder, CPT/HCPCS Search, Code Linker, Prescriptions, Order Tracking, Fax Management, Medical Art, Patient Education, Template Editor, Forms, Referrals, Collections Module, CCI Edits, Graphing, Check In Module, etc. e -MDs Solution Series - Part Time Provider (16 hours per week or less) Includes: Chart, Bill, DocMan, Schedule, Tracking Board, TaskMan, E&M Coding, ICD Coder, CPT/HCPCS Search, Code Linker, Prescriptions, Order Tracking, Fax Management, Medical Art, Patient Education, Template Editor, Forms, Referrals, Collections Module, CCI Edits, Graphing, Check In Module, etc. SQL Server Licenses SOL Server -Standard 2008 SOL 2008 Standard -Client Access License AMA CPT® Code Files- annual fee EDI Clearinghouse (Setup and Registration per site) EDI Professional setup bundle+ $250 annual tee incudes eligibility and remittance setup and training Interfaces Vendor Name Immunization Registry Export Interface Washington Training and Implementation Services Travel expenses are not included in this quote. Training expires 1 year from the contract date Project Management A dedicated a -MDs Project Manager is assigned to offer guidance, create a custom implementation project plan, and to make recommendations for successful implementation. e -MDs Database Wizard Database Wizard creates a solid foundation for clinic to build their database. A wide variety of information is entered by an a -MDs staff member, including all of the clinic's staff and their logins, providers, internal facilities (if clinic has more than 1 location), and schedules. After the Database Wizard is installed and after training has been completed, the clinic's staff will be able to customize the database further to meet the clinic's individual needs. On -Site EMR training per instructor - per day + travel On-site training of Chart, DocMan, Tracking Board, Lab Tracking, Refill Requests, and TaskMan modules. Upon completion participants will be able to track the patient from waiting room to exam room; create Doctor's and Nurse's Notes; enter vitals, past M/F/S history, medications; create and edit templates, pre -clicks, and shortcuts; create, edit and use flow sheets; create, authorize, and deny refill requests; and track send -out labs, tests, and procedures. Go Live EMR Support - per trainer - per day + travel An a -MDs chart trainer travels to clinic's location to assist in refining workflow and answer user questions during the initial "Go -Live" with software. Throughout the day, the trainer works one-on-one with users to ensure proper utilization of the software. (multiple a -MDs staff will be required for intalls with more than four providers) e -MDs Confidential Form Rev. 2007.10.18 Page 1 of 5 Proposal Valid Until: 28 -Jun -12 Date Prepared: 29 -May -12 ST WA Zip: 98368 Tel: (360) 385-9408 Fax: Count Unit Price Line Total Totals 19,987.50 1 7,995.00 7,995.00 3 3,997.50 11,992.50 1 95.00 95.00 20 95.00 1,900.00 21 20.00 420.00 1 995.00 995.00 1 995.00 995.00 1,250.00 1 995.00 995.00 6 1,250.00 7,500.00 3 1,250.00 3,750.00 2,415.00 995.00 995.00 13,495.00 Licensee Initials License Order 9900 Spectrum Drive Austin, TX 78717 9 P:(888)344-9836 www.e-MDs.com Prepared By: Dave Beatty Direct Line: 360.601.7007 e -Mail: dbeattyPe-mds.com Fax: 360.838.8088 Licensee: Jefferson County Public Health Address: 615 Sheraton City: Port Townsend e -Mail: ibaldwinCa co.iefferson.wa.us e -Portal products- Setup and training fees e -Prescribing (SureScripts) Set -Up Fee Per Database Configuration of IIS Server and initial training session. Additional purchase of router may be required. e -MDs Formulary Set-up fee per database Configuration of IIS Server and initial training session. Additional purchase of router may be required. e -Portal annual fees (Not Included in Total- Invoiced after setup) e -MDs formulary (Rx -Hub) 12- month Subscription (per provider) Annual Support Fees Updates/Upgrades and Support (% of software cost, including interfaces) Standard Support team hours of operation (Monday -Friday, 7:00 am- 7:OOpm CST/CDT) Access to Support organization via telephone/web/email Remote support functionality Software product upgrades Software product updates Access to a -MDs Support Center website Acess to a -MDs Support Forum Service Level Agreement response times on ticketed issues: Critical - 8 business hours High/Medium/Low- 12 business hours Shipping e -MDs Confidential Form Rev. 2007.10.18 Page 2 of 5 Proposal Valid Until: 28 -Jun -12 Date Prepared: 29 -May -12 ST WA Zip: 98368 Tel: (360) 385-9408 Fax: Count Unit Price Line Total Tofals 990.00 1 495.00 495.00 1 495.00 495.00 1,200.00 4 300.00 1200.00 4616.15 25.00 Total: $ 43,518.65 15 REC license discount (2,998.13) 20.4% REC training discount (2,295.00) Grand Total: $ 38,225.53 (any applicable sales tax will be added to the invoice) Licensee Initials License Order 9900 Spectrum Drive Austin, TX 78717 P: (888) 344-9838OEM' www.e-MDs.com Prepared By: Dave Beatty Direct Line: 360.601.7007 e -Mail: dbeattvCa)e-mds.com Fax: 360.838.8088 Licensee: Jefferson County Public Health Address: 615 Sheraton City: Port Townsend e -Mail: jbaldwin0co.iefferson.wa.us Summary of annual fees for this order based on today's rates - This is in addition to any annual fees that have been incurred for previous orders Updates/Upgrades and Support EDI annual support fee e -MDs formulary (Rx -Hub) 12- month Subscription (per provider) AMA CPT Codes Proposal Valid Until: 28 -Jun -12 Date Prepared: 29 -May -12 ST WA Zip: 98368 Tel: (360) 385-9408 Fax: Count Unit Price Line Total Totals $ 6,486.15 4,616.15 250.00 1,200.00 420.00 e -MDs Confidential Form Rev. 2007.10.18 Page 3 of 5 Licensee Initials Llaonst6 Ordtr proparod 8y:'pawe Gutty PYoposel Valid thstN: 0t-5ap-12 Dlreot LhFe;26II.801.7007 e•YItd1:.y Date Prepared: 02 -Aug -12 Fsx; 9t0.638.O08B Lleansee: S6fit)taan CO%OIY puottc H*A*l Addrem'm' pgrtT�ox4ttsnd 8T WA ZIP: 94388 e w' e -IA ' TO: PM 29&4408 ftx t (360) 38S.9401 Line row Told tterntnders to iA t'1aa Tra: N 6va1tK"ur a er+Wl Irow tersest mrte0 k OtAlnMpa, l�Iw NPHveD4 MW Y•- we W Mfed by Paler W do eeeMu�a ,.wnraltee n4uywl;y yore r,vokdal` aetaYrr/ tpWrW rapr Mtarnet noses to ue44tM abWN a ttatwoteed tavWvYq AhM 1n,►aM, a 4gr74;4pflrraeM H re�,fr9d. ��M needs e,q Krvlon Ye �� �y tyres, rMfW ew.ltrd eMW an nes MWMiM MMa brace s0 vAt M 6U1et w tM Ceehornsr ae wrMAUM Por t41To" Ow q >.r s4tvWL%bV W* 0gYdasocs40004,aeW30taryernWaleftoelrOMANwtobwandtietbatww.tPaar:u6*5raltwtsal. terd"vwemlmVAp deYs � ARJ) N 4awweNedewweta"d /t tpTrdraaape+tts^'OW All wiWeOt atm trrtwMdWd.ewte tebn „teat tr+atve(r� centre a tM care Neurdrr w rtr aeKstra � �1 WIT, Oro acrrpmpartYbD let(rK Ntd CondMerat and eachaxhsat w addertdtrrn, Y any, sctomparryirtg 0"TWatsOuriwnt, topsOter -Licensa Order, e0o4 er is inwpwowd nfererget{a0oectwty, the Otapr t txxtNMuF44 U* entire Afttvdmem 'CustoaW L+t orae end'Licensee") vdth O_Mo QUstouwar (id"liod i1 Otic Liw ft Order as bawer c•M" ir"^ ('e'Mpe7 >lrtdrtaatad SdF�ro wtd sary caa to Ga pt0t Ott T+tGstho H Peapod to the Lkaose t)rder, becomes wad aeale lhaten a MO6 awrvtoes, pe -v and terms a»d ins +0 gc,t,vv, VA LICOrm"wttenS"seYd WWA0 do Dohell of L"twee and then Faceired and wow Wo, abnp.tA t%Liooneta'1 mast t o"$ etnonmse tr0roed In WWI. the date toad (be Maw dons On License Order a tnta PsrmaM. by 0.406. ktbr Dew ad afao ww two aoeeptanca by e• auxwdanca cl7 Agn00tentx tet mOtkaFnOo Mps, and tMc R9i continus minatod�M .� Teat re r6 5118ast BOK d ihipmCnt. rft*lhv bolArree N terms: � orders IOr iha itiunted 60R� Quke otYt>sp.prior le t17 O Psynwnl dna wtlHn St+daYE of Yea Irwo,Ce Osla. tielunds.4unses may+'sltxn oto Lk9n3edSoliwsws, tog§Iha sslh aU D04Yfterlfatienend otMr mswriok detvRMd lnOweMlh arts drtnY (moi alter the ETtecu re Date. Giargee pad by kkeowe tdr Uctase 1to6 Q CP4 yd re0uttt a roftu� say tuns d„ rtr,p tt+a (;pltMta snA retWtded, Fess a NYteOn portant )t5'Fi) hanA�u+p rAwrga. whist+ is A ressanable estimate tot the tentrned t.7cOrx� enpvnseo Nd cDsw that a 4ADit ..,WM I tour as a Yestdt 01 luc h tetum. in whit) eveN We License shall Wmmats wMVwt br Q +Tit W trz sarvwces rendRtod audh as uaU,Uiq tutor in +stunt or tat+ t.kensw aabiLty ut o,ihcr WuhY. No retteidi �ee11 are grawtbd L,rditt gaMra[o. l eatisad ro chert bn da? dzed otace moaobw q odes ssee and of 0m E -mot O pato c ab oaeaod this t.c nso Order to be s� god 4W,% d by its duty aUt+ AitWhtrtentV F., ucerroa 9141400rn4 and COnCfiltDne Thu4 Nan y etoRwhv. Dale anal St Westrons 2. ttcertss OrdeY Addendum. t>ej" etgrutturtl el CUMOW-0 W>'i 200 lepteaentadve. Customr(lk:wm) emer6 Kilo and agien to wa Agreement ane the 9Y the syn ytyr 0,ewsa ani Cswglt,olts atd each adderdum arae bed to et,i AOrtemtrs 1 y.MOs, Inc: Pruaao twanac' �.– 't� r .MOO Cov,0401W ""fw, 2WT.10.18 POW Page 4 0" b Cu6rar- �tfteowt rmi CHealth r i� plNtiet�ti ima...,tYa."l.Yi peb ... 817-0 112- _._.... _ -- . }1 t.teruee uaHAta f,�7 t License Order 9900 Spectrum Drive Austin, TX 78717 P:(888)344-9836 %" ,:` - .. www.e-MDs.com Prepared By: Dave Beatty Direct Line: 360.601.7007 e -Mail: dbeatty e-mds.com Fax: 360.838.8088 Licensee: Jefferson County Public Health Address: 615 Sheridan St. City: Port Townsend e -Mail: ibaldwin(@co.iefferson.wa.us Proposal Valid Until: 01 -Sep -12 Date Prepared: 02 -Aug -12 ST WA Zip: 98368 Tel: (360) 385-9408 Fax: (360) 385-9401 Count Unit Price Line Total Totals Reminders to Customer: (1) Sales Tax: If Customer is exempt from Sales Tax, please attach Customer's appropriate sales tax exemption cerlifiateldocumentation required by the appicable taxing entity(ies). Otherwise, the applicable Sales Tax will be added by a -MDs to your invoice(s). (2) Customer needs to have the ability to download software updates via the Internet. (3) if Customer needs any services involving data imports, a separate agrement is required. (4) Travel expenses including airfare, hotel, rental car, and meals are not included In this Order ad will be billed to the Customer as authorized for services provided by a -MDs at the Customer's designated location(s). (5) Training cancellation policy: 30 days written notice for onsite training and Go Live cancellations; 15 days written notice for classroom training cancellations; and 10 days written notice for online training cancellations. (6) Training expiration policy: All training resources must be scheduled and taken within twelve (12) months of the date of purchase or the training r resource. �( This instrument, together with the accompanying terms and conditions and each exhibit or addendum, if any, accompanying this License Order, each of which is incorporated by reference (collectively, the "License Order"), constitutes the entire Agreement between a -MDs, Inc. ("e -MDs") and the named Customer (identified in this License Order as "Customer" and "Licensee") with respect to the Software and services to be provided by a -MDs identified in this Agreement. The proposal, including the Software, services, pricing and terms and conditions stated in the License Order, becomes a valid agreement between a -MDs and Licensee when signed and agreed to on behalf of Licensee and then received and accepted, along with Licensee's initial required payment, by e -MDs. Unless otherwise agreed in writing, the date that the Licensee signs this License Order is this Agreement's Effective Date, which is contingent upon receipt of initial payment from Licensee ad also upon final acceptance by e - MDs, and this Agreement shall continue until terminated in accordance wiht its terms. Payment terms: All orders for the licensed Software require at least 50% deposit prior to shipment. The remaining balance is due within 30 days of the invoice date. Refunds: Licensee may return the Licensed Software, together with all Documentation and other materials delivered therewith and request a refund any time during the first thirty (30) days after the Effective Date. Charges paid by Licensee for license fees for the returned Licensed Software will be refunded, less a fifteen percent (15%) handling charge, which is a reasonable estimate of the expenses and costs that e -MDs would incur as a result of such return, in which event the License shall terminate without further liability of either party. No refunds will be granted for services rendered such as training prior to return of the Licensed Software. Licensed Software shall be deemed acceptable unless Licensee and a -MDs have each caused this License Order to be signed and delivered by its duly authorized office or representative as of the Effective Date. Attachments: 1. License order Terms and Conditions 2, License Order Addendum, Third Party Software, Data and Suggestions By the below signature of Customer's authorized representative, Customer (Licensee) enters into and agrees to this Agreement and the accompanying terms and conditions and each addendum attached to this Agreement. e -MDs, Inc: By: Printed Name: Title: Date: e -MDs Confidential Form Rev. 2007.10.18 Customer: Jef L'onlic Health By. (Printed arae: Title: A aXY 0-n Date: E5 Page 4 of 5 Licensee Initials 1� License Order Prepared By: Dave Beatty Direct Line: 360.601.7007 Proposal Valid Until: 01 -Sep -12 e -Mail: dbeattv(@e-mds.com Date Prepared: 02 -Aug -12 Fax: 360.838.8088 Licensee: Jefferson County Public Health Address: 615 Sheridan St. City: Port Townsend ST WA Zip: 98368 e -Mail: ibaldwin0co iefferson.wa.us Tel: (360) 385-9408 Fax: (360) 385-9401 Count Unit Price Line Total Totals Rev. 03/17/11 e -MDs Confidential Page 5 of 5 Licensee Initials Form Rev. 2007.10.18 _ ��SON �oG Consent Agenda w K JEFFERSON COUNTY PUBLIC HEALTH �SF/INGG� 615 Sheridan Street o Port Townsend o Washington o 98368 www.jeffersoncountypublichealth.org' August 2, 2012 JEFFERSON COUNTY BOARD OF COUNTY COMMISSIONERS AGENDA REQUEST TO: Board of County Commissioners Philip Morley, County Administrator FROM: Jean Baldwin, Director DATE: A LtI u S L a -D , j1D ! -- SUBJECT: Agenda Item — Business Associate Agreement with e -MDs, Inc. for electronic Health Records; upon signature — until terminated; $38,225.53 STATEMENT OF ISSUE: Jefferson County Public Health, Community Health, requests Board approval of the Business Associate Agreement with a -MDs, Inc. for electronic Health Records; upon signature — until terminated; $38,225.53 ANALYSIS/ STRATEGIC GOALS/PRO'S and CON'S: Electronic Health Records (EHR) are part of the Centers for Medicare and Medicaid services provision's to meet the American Recovery and Reinvestment Act of 2009. This Act provides incentive payments to encourage Providers to use electronic health records. The electronic record program will increase quality of care of clients by standardizing record systems. All EHR technologies must meet stringent government requirements. The Center for Medicare & Medicaid Services (CMMS) has contracted with different agencies throughout the country to aid medical offices in their update to EHR. These agencies are set up through the States, the Washington/Idaho Regional Extension Center (WIREC) services are provided at no cost to qualifying agencies. Jefferson County Public Health applied and was accepted to receive WIREC services. The WIREC technical assistance helped JCPH understand how to come into compliance with the Healthcare Reform Provision of EHR and to meet indicators of health for individual patients called "meaningful use". WIREC and the Federal Government screened and did quality review checks and prepared a list of qualifying EHR vendors. COMMUNITY HEALTH PUBLIC HEALTH ENVIRONMENTAL HEALTH DEVELOPMENTAL DISABILITIES WATER QUALITY MAIN: (360) 385-9400 ALWAYS WORKING FOR A SAFER AND MAIN: (360) 385-9444 FAX: (360) 385-9401 HEALTHIER COMMUNITY FAX: (360) 379-4487 Consent Agenda After, JCPH qualified for the ARRA incentive payments for certified Providers, a staff team of the director, deputy director, billing coordinator, FNP clinician, JC -IS supervisor and scheduling clerk reviewed the WIREC list of certified providers that were interested in serving small clinics. JCPH also reviewed only certified providers who gave a group discount rate to WIREC members. In the process, JCPH spent 5 months traveling, watching webinars, and reviewing different EHR systems. JCPH reviewed bids from four of these vendors. After careful consideration and review of capacity of the agency, and ability of the EHRs to help us meet meaningful use, we have chosen the bid from a -MDs. FISCAL IMPACT/COST BENEFIT ANALYSIS: This contract is funded by the Washington Health Care Authority Medicaid Incentive Program. RECOMMENDATION: JCPH management request approval of the Business Associate Agreement with a -MDs, Inc. for electronic Health Records; upon signature — until terminated; $38,225.53 REVIEWED BY: 9/7 Philip Morley, Jbignty Administrator Date (Routed to all Public Health Managers) I JEFFERSON COUNTY PUBLIC HEALTH 615 Sheridan Street o Port Townsend o Washington o 98368 www.jeffersoncountypublichealth.org CONTRACT WITH: a -MDs, Inc. -l6 3 AUG 0 6 N-12-122 CONTRACT REVIEW FORM 2012 CONTRACT FOR: Electronic Health Records TERM: Upon signature - Until Terminated COUNTY DEPARTMENT: Jefferson County Public Health For More Information Contact: Jean Baldwin Contact Phone #: X408 RETURN TO: Cathy Avery RETURN BY: ASAP AMOUNT: Revenue: Expenditure: $38,225.53 Matching Funds Required: Source(s) of Matching Funds: Step 1 APPROVED FORM mments: PROCESS: REVIEW BY RISK MAN -- Review by:jX9 Date Reviewed: ❑ Exempt from Bid Process ❑ Consultant Selection Process ❑ Cooperative Purchase ❑ Competitive Sealed Bid ❑ Small Work Roster ❑ Vendor List Bid ❑ RFP or RFQ OOther: Reviewed bids from WIREC's list of certified providers A Returned for rev(sion (See Comments) Step 2: REVIEW BY PRO Cl�T�I ATT N Review by: L V�Z Date Reviewed: -7/0M APPROVED AS TO FORM LJ Returned fore sion (See Comments) Commens�'V`Ez V1gP41, ' 0-y <Plq -ACY. \/\16Q -P Ott: oLvaj) )/V Lim tri:-vCLL, .. 6 -..S 1 e At ., ,-n 4 COMMUWY'F1rAL7H" av -y vr�t� i vv� iu `�� 1CLfiNfA t1h 6VIC.VV NI Vt.,VOO' ENVIRONMENTAL HEALTH DEVELOPMENTAL DISABILITIES WATER QUALITY MAIN: (360) 385-9400 ALWAYS WORKING FOR A SAFER AND MAIN: (360) 385-9444 FAX: (360) 385-9401 HEALTHIER COMMUNITY FAX: (360) 379-4487