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HomeMy WebLinkAbout040918_ca11615 Sheridan Street Port Townsend, WA 98368 www.JeffersonCountyPublicHealth.org JEFFERSON COUNTY BOARD OF COUNTY COMMISSIONERS AGENDA REQUEST TO: Board of County Commissioners Philip Morley, County Administrator FROM: Vicki Kirkpatrick, Director DATE: 4 1 -4-0) Consent Agenda March 21, 2018 SUBJECT: Agenda Item — Business Associate Agreement with e -MDs, Inc. for hosting electronic services; upon signature — until terminated; $22,320 STATEMENT OF ISSUE: Jefferson County Public Health, Community Health, requests Board approval of the Business Associate Agreement with a -MDs, Inc. for hosting electronic services; upon signature — until terminated; $22,320 ANALYSIS/STRATEGIC GOALS/PRO'S and CON'S: We have been utilizing a -MDs electronic medical records system since 2012, following an extensive bid process. The RCM services agreement with a -MDs which included hosting electronic services ended earlier this month. Jefferson County Public Health seeks to establish a new agreement for hosting electronic services. FISCAL IMPACT COST BENEFIT ANALYSIS: This contract is funded by fees. RECOMMENDATION: JCPH management request approval of the Business Associate Agreement with a -MDs, Inc. for hosting electronic services; upon signature — until terminated; $22,320 REVIEWED BY: Community Health Developmental Disabilities 360-385-9400 360-385-9401 (f) 3/els Date Always working for a safer and healthier community Environmental Health Water Quality 360-385-9444 (f) 360-379-4487 eMDs HEALTHY SOLUTIONS. HEALTHY PATIENTS. HEALTHY PRACTICES. Solution Series Hosting Service Add -On Proposal and License Agreement Prepared By: Rocky E. LGpez Order Date Order Expiration Date Customer Legal Name Customer Contact Name Phone E-mail Address Customer Profile Total Number of Providers (Full and Part Time) Number of Locations Number of Workstations Number of Users 3/21/2018 4/20/2018 Jefferson County Public Health Veronica Shaw 360.385.9400 veronica@co.jefferson.wa.us 615 Shridan St. Port Townsend, WA 98368 3 1 13 13 v20170912.2 Jefferson County Public Health - Hosting Proposal.xlsx Hosting Order Form Page 1 of 2 Solution Series Hosting Add -On Options Product/Service Unit Price Hosting Add -On Fee Per Provider Per Month' 2 $200.00 Initial Term 36 months Hosting Solution Setup $995.00 Product/Service Hosting Add -On Fee Per Provider Per Quarter Additional User Cost Per Quarter Total Quarterly Hosting Fee Initial Quarterly DocMan File Storage Excess Charge for 40GB Initial Hosting Setup Other Fees to Be Included - Clinic is already on hosting via RCM - waive $995 setup fee Total Setup Fees Total Initial Fees (excluding Sales Tax) Addenda, Attachments, Exhibits General Terms and Conditions Applicable to All Software and Services Hosting Solution Service Schedule Business Associate Agreement Auto Debit Authorization Extended Price $1,800.00 N/A $1,800.00 $60.00 $995.00 Yes See Note to Left for Amount Above $0.00 $1,860.00 This order form and the Agreement are only valid until the Order Expiration Date. If the Order Expiration Date has passed, please contact your sales representative for an updated proposal. This agreement supersedes any prior agreement between Customer and eMDs. Hosting Add -On does not include any other costs. Order and Contract Acceptance IN WITNESS WHEREOF, effective as of the last date set forth below (the "EFFECTIVE DATE"), the respective authorized representative of each party has executed this Agreement, including the addenda, attachments, and exhibits set forth above, and intends to be bound hereby. Customer Signature: Printed Name: eMDs, Inc. Signature: Printed Name: DATE: DATE: References (1) Hosted Customer Storage: Price includes information stored in SQL database regardless of size, as well as 20GB per practice for images, scans, and other data stored in the document management system. Overages for DocMan files are charged at $20/month/20GB or part thereof. Based upon initial storage of 40GB, the expected initial monthly charge will be $20.00/month. This will grow over time as storage increases and due to factors such as specialty, file quallty, etc.. (2) Price includes SQL, and Microsoft* Word for 5 users including provider for each full time provider, and 3 users including provider for each part time provider. Addltional users are $49/user/month. Customer must notify eMDs if the number of users or providers changes. Price is for hosting service only and does not include other fees such as software licensing and maintenance. (3) Hosting fees will be billed quarterly in advance. All hosting fees must be paid via ACH. (4) Sales Taxes are not included and will be charged upon invoicing. y7ved to orm: Date: Philip C. Hunsucker, Chief Civil Deputy Prosecuting At omey Jefferson County Prosecuting Attorney's Office Corney Jefferson County Public Health - Hosting Proposa,l.xlsx Hosting Order Form Page 2 of 2 eMDs General Terms and Conditions Applicable to All Hosted Software and Services 1. Software and Services. a. Customer will receive the Software and Services set forth in the Order Form. All Software and Services are subject to the Order Form, these General Terms and Conditions, the applicable Service Schedules, any applicable End Use License Agreement, Exhibits, Attachments and any Statements of Work (collectively, the "Agreement"). During the Term of this Agreement, Customer may purchase additional Software or Services through additional Order Forms or Statements of Work. b. These Terms and Conditions will apply broadly across all Service Schedules, Exhibits, Attachments and Statements of Work. In the event of contrary, additional or inconsistent terms and conditions within the Agreement, the following order of precedence will apply: (i) the Business Associate Addendum; (ii) the Statement of Work; (iii) the applicable Service Schedule; (iv) these Terms and Conditions; (v) the applicable End User License Agreement; and (vi) the Order Form. 2. License. a. eMDs hereby grants to Customer a limited, revocable, non-exclusive, non -transferable, non-sublicenseable license (a "License") for Customer to use and execute the object code version of the Software for Customer's internal business operation in accordance with this Agreement, eMDs' Acceptable Use Policy (available in the eMDs Legal Documents Resource Center on eMDs Support Center) and the Documentation. The Software may be used concurrently only by the number of Providers designated in the Order Form, and, where applicable, only on the number of workstations and only by the total number of Users as may be designated in the Order Form. Customer 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. In no event shall the Software, or any copy thereof, be removed from the premises and facilities under the reasonable control of Customer, except for reasonable off-site storage backup copies and third party hosting of the Software. Customer agrees to keep an accurate accounting of all copies of the Software made and to provide eMDs with such accounting upon request. Customer agrees that eMDs or its designees may have access to Customer's computer hardware and media, by direct or remote access, to verify Customer's compliance with this Agreement. Under no circumstances shall this Order Form 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. b. Customer understands and agrees that the Software, Documentation and Services are and shall at all times remain the property of eMDs or its licensors, and Customer shall have no rights or interests therein except for the License granted to Customer. Customer shall not, and shall cause its employees, contractors and Users not to: 1) modify, adapt, alter, reverse engineer, decompile, reverse compile, or disassemble the Software; 2) create a derivative work or compilation of the Software, Documentation or Services, including without limitation any product or service derived or compiled from or based on, in whole or in part, any eMDs services or products; 3) remove or alter any trademark, logo, copyright, or other proprietary notices, legends, symbols or labels in or on the Software, Documentation or Services; 4) copy, distribute, market, sell, lease, sublicense or otherwise transfer the Software, Documentation or Services, or any component or portion thereof, to third parties; 5) use the Software, Documentation or Services in a way that violates the rights of a third party including, but not limited to, intellectual property rights; 6) extract or modify information in the Software using any tools not provided by eMDs including, but not limited to, those that enable scraping; or 7) use the Software, Documentation or Services in any way that violates applicable law. Any and all modifications of and software derivative to the Software, Documentation or Services, and any libraries, interfacing software, templates, data or other materials intended to be utilized with the Software or Services must be developed by eMDs and not by Customer, its employees or contractors. Any such modifications, derivatives, interfacing software, templates, data or other materials intended to be utilized with the Software or Services shall be and shall remain the property of eMDs, and Customer and its employees shall have no rights or interests therein regardless of whether or not Customer suggested or pays for such development. 3. Implementation. If Customer purchased the Software and Services through or in connection with an eMDs authorized reseller, the reseller shall provide implementation services to Customer. If Customer purchased the Software and Services directly from eMDs without the use of an authorized reseller, eMDs and Customer agree to Hosted General Terms and Conditions Customer Initials Page 1 of 10 © 2017. Confidential. nev.10/2017 eMDs 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 technically available with the Software and Services, the implementation services shall address the migration and conversion, if any, of existing Customer data to the eMDs system and shall clearly define what data or records will be converted and any additional equipment or software requirements needed for conversion. 4. Training. If Customer purchased the Software and Services through or in connection with an eMDs authorized reseller, the reseller shall provide training services to Customer. If Customer purchased the Software directly from eMDs without the use of an authorized reseller, eMDs will provide its standard training services to Customer and its Users on the use of the Software and Services. Customer understands that if any additional training resources or other resources are required from eMDs related to the Software or Services, the Customer will need to purchase such resources at the then applicable rates of eMDs. Customer will ensure that Users are adequately and sufficiently trained and capable of using the Software and Services. S. Support Services. If Customer has purchased the Software through or in connection with an eMDs authorized reseller, the reseller shall provide Software and Services support services to Customer. If Customer purchased the Software directly from eMDs without the use of an authorized reseller, eMDs shall provide to Customer the following support services: a. Resources. eMDs will provide a full Help Desk and electronically -available support resources to support Customer's and its Users' use of the Software and Services. The Help Desk and other support resources will be available as set forth in the then -current Documentation (available on the eMDs Legal Documents Resource Center on eMDs Support Center). b. Scope Limits. If eMDs (in its reasonable discretion) determines that the Customer is inordinately or excessively utilizing the standard eMDs support resources, eMDs will have the option to recommend that the Customer purchase training resources and other resources as may be appropriate for the Customer's personnel to more efficiently and effectively use the eMDs Software and Services. If the Customer declines to receive and participate in a commercially reasonable manner in any such recommended services, eMDs may prospectively (in its reasonable discretion) set reasonable limits on the amount and manner in which the Customer may request and eMDs may provide such services on a time and materials basis. c. Upgrades. Subject to payment of the Fees for maintenance and support and provided Customer is compliance with the Agreement, Customer will receive upgrades to the Software (but not upgrades or enhancements considered by eMDs to be new products or extensions). Use of such upgrades shall be subject to all of the terms and conditions of the Agreement including, but not limited to, the License. 6. Customer Representative. Customer will appoint a qualified employee(s) to serve as a liaison between Customer and eMDs for all matters related to this Agreement. Such employee(s) must have full authority to enter into agreements and make binding decisions on behalf of Customer. Customer may appoint an Administrative Point of Contact to handle administrative matters related to this Agreement and a Technical Point of Contact to handle technical matters related to this Agreement. Customer agrees that eMDs may rely on representations made by Customer's Point(s) of Contact. Customer may change its Point(s) of Contact at any time by giving written notice to eMDs. eMDs is under no obligation to accept instructions from anyone other than the Point(s) of Contact; however, eMDs shall not be liable for any loss or damage resulting from eMDs' reliance on any instruction, notice, document or communication reasonably believed by eMDs to be genuine and originating from an authorized representative of Customer. 7. Customer Equipment Responsibilities. Customer is solely responsible for timely and properly providing, obtaining, managing and implementing and maintaining any and all information technology (IT) items (services and equipment) that are required for Customer and Users to access and use the Software and Services including, without limitation, hardware, software, and internet connectivity and ensuring that such IT items comply with the requirements set forth in the Documentation. If Customer fails to provide such hardware, software or Internet connectivity, eMDs' ability to provide the Software and Services may be adversely impacted and eMDs accepts no responsibility or liability for any claims, actions, losses, or damages incurred by Customer arising from or out of Customer's failure to meet such requirements. Except for the limited and specific IT -related items specifically agreed Hosted General Terms and Conditions Customer Initials _ _ Page 2 of 10 © 2017. Confidential. R-10/2017 eMDs to and purchased from eMDs through the Agreement or through subsequent written transactions with eMDs, eMDs does not and has not agreed to provide any such IT items or other items or resources. If requested by Customer, eMDs may be able to offer consulting or IT related resources at its then standard prices and terms and conditions to assist Customer subject to the terms of this Agreement. In the event eMDs may also be able to provide contact information to assist Customer in obtaining such IT resources from third parties, eMDs is not and will not be responsible for any such resources and equipment that may be provided to Customer either by Customer's own resources or by third parties. 8. Customer's Users. a. Customer is responsible for all activity of Users and others accessing or using the Software or Services through or on behalf of Customer. Customer is also responsible for (i) identifying and enrolling individuals who Customer determines should be Users; (ii) assigning appropriate roles and access rights to such Users; (iii) monitoring Users' access to and use of the Software and Services; (iv) acting upon any suspected or unauthorized access of information through the Software or Services; (v) ensuring each User's compliance with the Agreement; and (vi) deactivating a User account whenever a User's employment, contract or affiliation with Customer is terminated or Customer otherwise desires to suspend or curtail a User's access to and use of the Software and Services. Customer must ensure that each individual Provider is and continues to be duly credentialed, licensed, registered, or authorized to provide health care services under all applicable laws and governmental regulations. Customer agrees to follow best practices to ensure compliance with this provision. b. Customer acknowledges that eMDs may suspend or terminate any User's access to the Software, Services or any eMDs website (i) for noncompliance with this Agreement or the applicable posted terms; (ii) if such User poses a threat to the security or integrity of the Software, Services or information available therein; (iii) upon suspension or termination of Customer; or (iv) upon notice of such suspension or termination of such User by Customer. Customer may suspend or terminate a User's access to the Software or Services at any time. 9. Customer Content. a. Ownership of Customer Content. By providing or inputting Customer Content into the Software or Services via any method, Customer represents and warrants to eMDs that (i) Customer has all necessary rights to distribute or use any such Customer Content via the Software or Services; (ii) Customer is solely responsible for all aspects of such Customer Content; and (iii) such Customer Content does not violate the rights of any third party. Except as expressly stated in the Agreement, as between eMDs and Customer, Customer owns such Customer Content and eMDs has no proprietary, financial, or other interest in Customer Content. Notwithstanding the foregoing, Customer agrees that eMDs may access, view and use the Customer Content as necessary to respond to Customer's specific support requests or inquiries; for the business operations of eMDs related to the provision of Services; to verify compliance with this Agreement; as may be required by applicable law, court order or governmental authority; and as otherwise permitted by the Agreement. b. Protection of Customer Content. Customer acknowledges and agrees that Customer is solely responsible for ensuring the integrity of its Customer Content and, except when Customer has purchased eMDs Hosting Solution, conducting appropriate data backups. Customer is advised that eMDs is not an insurer and is in no way responsible for any damages resulting from the loss, in whole or in part, of any data or other items making up Customer Content, regardless of the reason for such loss. 10. Fees. a. Fees. In consideration for the Services provided by and Licenses granted by eMDs to Customer under the Agreement, Customer shall pay eMDs all fees, charges and expenses specified in the Order Form and any other costs or charges agreed to by the parties in writing ("Fees"). Unless otherwise set forth in an applicable Service Schedule, Customer will pay all undisputed Fees within ten (10) days after the invoice date by an electronic funds transfer using the online ACH payment system that is used by eMDs. Any Fees not disputed in writing within ten (10) days of the invoice date shall be deemed "undisputed" for all purposes of the Agreement. If such undisputed Fees are not paid in full when due, Customer agrees to pay a late fee of 1.5% per month and reimburse eMDs for all collection costs, attorney's fees or other expenses reasonably incurred by eMDs in collecting amounts due under this Agreement. Hosted General Terms and Conditions Customer Initials Page 3 of 10 C 2017. Confidential. Rev 10/2017 eMDs b. Fee Adjustments. To the extent that the Fees are based on number of Providers, number of Users, number of workstations, number of claims or any other metric identified in the Order Form, or any metric or assumptions provided by Customer to eMDs and on which eMDs relied when establishing the Fees (the "Variables"), Customer shall notify eMDs of changes in such Variables at least thirty (30) days prior to the change occurring. To the extent that the change results in an increase in a Variable(s) and a resulting increase in the Fees, such change shall be effective on the date the change first occurs and the Fees shall be adjusted accordingly. To the extent that the change results in a decrease in a Variable(s), such change will be effective on the first day of the next renewal term. To increase the number of Providers the level preceding the decrease, Customer must pay (i) all maintenance and support payments for such Provider License for the then current term, or (ii) if it has been longer than six months since the effective date of the decrease, the full Provider license fee plus the applicable annual maintenance and support fee. c. Audit. Upon reasonable advance notice and no more than twice per calendar year, eMDs may conduct an audit of Customer's books and records to ensure that Customer is in compliance with this Agreement. Such audit will be conducted during regular business hours, and Customer will provide eMDs with reasonable access to all relevant equipment, software, books and records. Notwithstanding the foregoing, eMDs shall have the right to audit the Variables at any time through whatever means are available to eMDs. If an audit reveals that Customer's use of any Software or Services during the period being audited failed to comply with this Agreement, eMDs may avail itself of all available remedies. If an audit reveals that Customer failed to notify eMDs of a change in the Variables in accordance with Section 10(b) and such failure resulted in Customer's use of the Software or Services beyond the licensed usage, then eMDs may invoice Customer for any and all such previous excess use based on eMDs' prevailing rate(s) in effect at the time the audit is completed, and Customer will pay any such invoice. If such excess use exceeds five percent (5%) of the licensed use, then Customer will also pay eMDs' reasonable costs of conducting the audit. d. Expense Reimbursement. Customer agrees to reimburse eMDs for the travel expenses incurred by eMDs in connection with this Agreement. e. Sales, Use and Other Taxes. In addition to the Fees, Customer shall also pay eMDs any federal, state or local taxes, duties, excises or other similar amounts, however designated, that eMDs may be required by law to collect or pay upon the sale, use, licensing or delivery of services or any other matter related to this Agreement. In the event Customer claims that no such taxes are due, it shall provide eMDs, at eMDs' request, with copies of such documentation as may be required by the taxing authorities. f. Renewal Fees. On the annual anniversary of the Effective Date, eMDs may, upon one hundred (120) days prior written notice to Customer, increase the Fees at a rate up to the change in the All Items Consumer Price Index for All Urban Consumers; United States City Average ("CPI") plus three percent (3%). 11. Term, Suspension and Termination. a. Term. The initial term of this Agreement and each Software and Service purchased hereunder is set forth in the Order Form. At the conclusion of the initial term, this Agreement shall automatically renew for successive one year terms unless either party gives written notice of non -renewal at least ninety (90) days prior to the end of the then current term. b. Suspension. eMDs reserves the right to investigate suspected violations of the Agreement. eMDs may suspend Customer's Full Access to the Software and Services if (a) Customer's use of the Software or Services breaches the Agreement or poses a threat to the integrity of eMDs' Software, Services or network; or (b) payment of any undisputed Fees is more than thirty (30) days overdue. eMDs' right to suspend Customer's Full Access to the Software or Services is in addition to any other rights and remedies (including termination rights), eMDs may have. Any suspension imposed in accordance with this Section will not suspend the accrual of Fees nor relieve Customer of its obligation to pay Fees due. During any period of suspension, eMDs shall provide Customer with Limited Access to the Software and Services unless doing so poses a threat to the integrity of eMDs' Software, Services or network. c. Termination for Breach. Either party may terminate this Agreement if the other party materially breaches this Agreement, unless (i) the breaching party cures the breach within 30 days following receipt of notice of same from the non -breaching party, or (ii) with respect to a breach which may not reasonably be cured within a Hosted General Terms and Conditions Customer Initials Page 4 of 10 © 2017. Confidential. Rev. I0/2017 eMDs 30 -day period, the breaching party commences, is diligently pursuing cure of, and cures the breach as soon as practical following receipt of notice of the breach from the non -breaching party. d. Early Termination. Customer may terminate the Agreement upon ninety (90) days prior written notice and payment of all fees due for the Software and Services provided up to the date of termination. Unless a different early termination fee is set forth in the applicable Service Schedule, should Customer terminate the Agreement prior to the end of the then current term, Customer agrees to pay an early termination fee equal to $5,000 per Provider. Customer agrees that this early termination fee is compensation to eMDs for loss of the contractual bargain between Customer and eMDs, and not a penalty imposed on Customer. e. Effect of Termination. Upon termination or expiration of this Agreement, all Services and the License will terminate and Customer will immediately cease all use of the Software, Documentation and Services and return all copies of such Software and related Documentation, and promptly destroy all copies of the eMDs' Confidential Information. Customer is responsible for ensuring that it has a copy of all of its Customer Content and any other data maintained in the Software prior to termination of the Agreement. Customer may extract such Customer Content and other data using eMDs then current method, format and instructions. If Customer requires eMDs professional services with respect to such extraction, eMDs will provide such services on a time and materials basis. Notwithstanding the foregoing, upon Customer's request, eMDs shall provide Customer with Limited Access to the Software for up to ninety (90) days following the termination date of this Agreement and Customer shall pay for the Limited Access at eMDs then prevailing rates. Such Limited Access shall be in accordance with the License and all other applicable terms of this Agreement. 12. Confidential Information. a. Confidentiality. The Parties acknowledge that they will each provide to the other Confidential Information as part of carrying out the terms of this Agreement. eMDs and Customer will be both a Receiving Party and a Disclosing Party at different times. The Receiving Party agrees that it will not (i) use any such Confidential Information in any way, except for the exercise of its rights and performance of its obligations under this Agreement, or (ii) disclose any such Confidential Information to any third party, other than furnishing such Confidential Information to its employees, consultants, and subcontractors, who are subject to the safeguards and confidentiality obligations contained in this Agreement and who require access to the Confidential Information in the performance of the obligations under this Agreement. In the event that the Receiving Party is required by applicable law to make any disclosure of any of the Disclosing Party's Confidential Information, by subpoena, judicial or administrative order or otherwise, the Receiving Party will, to the extent not prohibited by law, rule or order, first give written notice of such requirement to the Disclosing Party, permit the Disclosing Party to intervene in any relevant proceedings to protect its interests in the Confidential Information, and provide full cooperation and assistance to the Disclosing Party in seeking to obtain such protection, at the Disclosing Party's sole expense. b. HIPAA Compliance. The parties agree to comply with the Business Associate Addendum, attached hereto and incorporated by reference herein as Exhibit 1, documenting the assurances and other requirements respecting the use and disclosure of Protected Health Information. Notwithstanding the foregoing, as the covered entity, it is Customer's responsibility to protect the privacy and security of its individually identified health information created by, maintained in or transmitted through the Software or Services. It is also Customer's responsibility to ensure that it obtains all appropriate and necessary authorizations and consents to use or disclose any individually identifiable health information in compliance with all federal and state privacy laws, rules and regulations, including but not limited to the Health Insurance Portability and Accountability Act. In the event that this Agreement is, or activities permitted or required by this Agreement are, inconsistent with or do not satisfy the requirements of any applicable privacy or security law, rule or regulation, the parties shall work together in good faith to negotiate an amendment to this Agreement or changes to the activities permitted or required by this Agreement to remedy such inconsistency. If the parties cannot reach agreement on such amendment or changes within sixty (60) days of commencement of such negotiations, eMDs may terminate this Agreement. 13. Warranty. eMDs warrants, for a period of ninety (90) days from the Delivery Date of the Software (the "Warranty Period"), that such Software (other than Third Party Items) shall perform substantially in accordance with the specifications for such Software set forth in the applicable Documentation, provided that Customer (1) properly installs the Software on systems that meet the applicable system configuration requirements set forth in the Hosted General Terms and Conditions Customer Initials Page 5 of 10 © 2017. Confidential. Rev. 10/2017 eMDs Documentation; (2) timely and properly installs all updates and enhancements to the Software provided by eMDs; (3) remains in continuous compliance with this Agreement (which includes, but is not limited to, continuing to timely pay all applicable Fees); and (4) timely complies with reasonable requests and instructions from eMDs related to the use and operation of the eMDs Services (the "Warranty"). Customer shall give eMDs written notice of the claimed breach of Warranty no more than thirty (30) days after Customer becomes aware of any such alleged defect or item covered by the Warranty. If eMDs is unable within a reasonable period of time to correct or otherwise resolve any failure to comply with the Warranty, then Customer may terminate the Agreement without penalty. This is Customer's sole and exclusive remedy for a breach of Warranty. THIS LIMITED WARRANTY GIVES CUSTOMER SPECIFIC LEGAL RIGHTS. CUSTOMER MAY HAVE OTHER RIGHTS, WHICH VARY TO THE EXTENT APPLICABLE FROM STATE/JURISDICTION TO STATE/JURISDICTION. 14. Disclaimers and Limitation of Liability. a. Each Party acknowledges that the liability limitations and warranty disclaimers in the Agreement are independent of any remedies hereunder and shall apply regardless of whether any remedy fails of its essential purpose. Customer acknowledges that the limitations of liability set forth in this Agreement are integral to the amount of consideration offered and charged in connection with the Software and Services provided by eMDs and that, were eMDs to assume any further liability other than as provided in the Agreement, such consideration would of necessity be set substantially higher. b. EXCEPT FOR ANY EXPRESS WARRANTY PROVIDED HEREIN OR IN THE APPLICABLE SERVICE SCHEDULE, THE SOFTWARE, DOCUMENTATION AND SERVICES ARE PROVIDED ON AN "AS IS," "AS AVAILABLE" BASIS; CUSTOMER AGREES THAT USE OF THE SOFTWARE, DOCUMENTATION AND SERVICES IS AT CUSTOMER'S SOLE RISK; AND, TO THE MAXIMUM EXTENT PERMITTED BY LAW, EMDS EXPRESSLY DISCLAIMS ANY AND ALL OTHER EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO THE SOFTWARE, DOCUMENTATION AND SERVICES INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON -INFRINGEMENT OR WARRANTIES ALLEGED TO ARISE AS A RESULT OF CUSTOM AND USAGE. c. IN NO EVENT SHALL EMDS OR ANY PROVIDER OF THIRD PARTY ITEMS BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR INCIDENTAL, CONSEQUENTIAL, PUNITIVE, SPECIAL, EXEMPLARY OR OTHER INDIRECT DAMAGES OF ANY KIND OR NATURE INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF DATA, LOSS OF BUSINESS, WHETHER A CLAIM FOR ANY SUCH LIABILITY OR DAMAGES IS PREMISED UPON BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER THEORIES OF LIABILITY, EVEN IF EMDS HAS BEEN APPRISED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES OCCURRING. Notwithstanding anything in this Agreement to the contrary, unless further limited in the applicable Service Schedule, in no event shall eMDs' or its licensors' total liability arising from or relating to this Agreement exceed an amount equal to fees paid by Customer to eMDs for the Software, Documentation or Service giving rise to the claim in the three (3) months prior to the event giving rise to the claim, whether a claim for any such liability or damages is premised upon breach of contract, breach of warranty, negligence, strict liability, or any other theories of liability, even if eMDs has been apprised of the possibility or likelihood of such damages occurring. d. ANY ACTION RELATING TO THIS AGREEMENT, OTHER THAN COLLECTION OF OUTSTANDING PAYMENTS, MUST BE COMMENCED WITHIN TWO YEARS AFTER THE DATE UPON WHICH THE CAUSE OF ACTION ACCRUED OTHERWISE SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED. e. CUSTOMER AGREES THAT ANY CLAIM CUSTOMER MAY HAVE AGAINST EMDS, INCLUDING EMDS' PAST OR PRESENT EMPLOYEES OR AGENTS, SHALL BE BROUGHT INDIVIDUALLY AND CUSTOMER SHALL NOT JOIN SUCH CLAIM WITH CLAIMS OF ANY OTHER PERSON OR ENTITY OR BRING, JOIN OR PARTICIPATE IN A CLASS ACTION AGAINST EMDS. 15. Indemnification. a. eMDs Indemnity. eMDs will defend, indemnify, and hold Customer harmless from and against third party claims, liabilities, obligations, judgments, causes of action, costs and expenses (including reasonable attorneys' fees) to the extent arising out of a claim filed in a court of competent jurisdiction alleging that the Software (except for Third Party Items), Documentation or Services infringe a third party's intellectual property rights including, without limitation, patent, trademark, trade secret or copyright ("Infringement Action"), provided that (a) Customer Hosted General Terms and Conditions Customer Initials Page 6 of 10 0 2017. Confidential. Rev. 10/2017 notifies eMDs in writing of such Infringement Action within ten (10) days of receiving notice of same, (b) eMDs has sole control of the defense of such Infringement Action and all related settlement negotiations, and (c) Customer provides all reasonable assistance, information, authority and cooperation reasonably requested by eMDs. eMDs' indemnification obligation will not apply to the extent that the Infringement Action is based upon: (i) the use of any item of the Software, Documentation or Services in combination with any product, service or activity (or any part thereof) not furnished, performed, recommended in writing, or approved in writing by eMDs; (ii) the use of the Software, Documentation or Services in violation of this Agreement; (iii) the use of the Software not updated to the latest version offered by eMDs, where the latest version incorporates modifications that, in eMDs' opinion, avoid the infringement claim; or (iv) third party content supplied or transmitted by Customer or Users. If there is an Infringement Action relating to Customer's use of the Software, Documentation or Services, or if, in eMDs' opinion, any of the Software, Documentation or Services are likely to become the subject of an Infringement Action, eMDs may, at its discretion, (i) procure the right for Customer to use the Software, Documentation or Services that are the subject of the Infringement Action, (ii) replace or modify the Software, Documentation or Services so that they become non -infringing, or (iii) terminate the Agreement. The indemnification provided for in this paragraph shall constitute the entire liability of eMDs and all providers of Third Party Items with respect to an Infringement Action. b. Customer Indemnity. Customer will defend, indemnify, and hold eMDs and its officers, directors, employees, and agents harmless from and against third party claims, liabilities, obligations, judgments, causes of action, costs and expenses (including reasonable attorneys' fees) to the extent arising out of (a) Customer's or its Users' use of the Software, Documentation or Services, or (b) Customer's breach of this Agreement. 16. Information Management Tool. The Software, Documentation and Services are not intended to diagnose disease, prescribe treatment, or perform any other tasks that constitute or may constitute the practice of medicine or of other professional or academic disciplines. The Software, Documentation and Services are information management tools only, many of which contemplate and require the involvement of professional medical personnel and professional billers and coders. Information provided is not intended to be a substitute for the advice and professional judgment of a physician or other professional medical personnel or professional biller or coder, as applicable. Users shall use their best clinical/professional judgment when acting upon information provided through the Software, Documentation or Services. Customer is solely responsible for ensuring that all records of medical care created or maintained in, or transacted through, the Software are accurate and complete, and that all billing information delivered by Customer and each User to any insurance companies, governmental agency, or other payer is accurate and complete. Neither eMDs nor its subcontractors or licensors 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 payers. 17. Questions Related to Customer Account Ownership. The entity or person creating the account and designated as the Customer shall be the owner of all Customer's rights related to this Agreement. For security reasons, only the account owner or Administrative Point of Contact shall be allowed to make changes, cancellations, or designate a new Point of Contact. If a dispute arises between or among multiple persons claiming ownership of or rights of the Customer to the Software or Services provided under this Agreement or otherwise related to this Agreement, eMDs is not obligated to and will not resolve any such disputes. eMDs will only act when, in eMDs' sole judgment, eMDs has been provided evidence as to the ownership of or rights in such matters. eMDs shall have no liability related to actions taken or not taken in reliance on such evidence. 18. Third Party Items. a. Third Party Items will be provided under the applicable terms of the third party supplier, which are incorporated herein and available on the eMDs Legal Documents Resource Center on eMDs Support Center (the "Third Party Terms"). eMDs may revise the Third Party Terms at any time by posting a new version at such web address. eMDs makes no warranties of any kind with respect to Third Party Items, hardware or other software proprietary to any third party. b. The Software may include the Current Procedural Terminology (CPT) code set, maintained by the American Medical Association through the CPT Editorial Panel, describing medical, surgical, and diagnostic services and designed to communicate uniform information about medical services and procedures among physicians, coders, patients, accreditation organizations, and payers for administrative, financial, and analytical purposes (the Hosted General Terms and Conditions Customer Initials Page 7 of 10 © 2017. Confidential. Re 10/2017 eMDs "CPT"). Customer may only use the CPT code set consistent with the terms and conditions set forth in the eMDs Legal Documents Resource Center on eMDs Support Center. c. Although eMDs may recommend third party vendors (including individuals) who may be able to assist Customer with the various options available to set up and use the eMDs Software and Services, the agreement for any such third party items (for example, providers of internet/online access and communication services) and/or hardware will be exclusively between the Customer and such third party and eMDs will not have any responsibility or obligation under such agreement if any is entered into by Customer. eMDs MAKES NO REPRESENTATION OR WARRANTY WHATSOEVER REGARDING PRODUCTS AND SERVICES THAT ARE NOT PURCHASED FROM AND PROVIDED DIRECTLY BY eMDs, INCLUDING THE COMPATIBILITY OF SUCH PRODUCTS AND SERVICES WITH eMDs SOFTWARE AND SERVICES. d. Any links or references in the Software or Services to third party sites or third party information are provided for Customer's convenience and the inclusion or reference by eMDs to any such third party items does not imply any endorsement of such item by eMDs. SUCH LINKED OR ACCESSED THIRD PARTY ITEMS ARE NOT UNDER THE CONTROL OF EMDS AND EMDS IS NOT RESPONSIBLE FOR THE CONTENTS OR SERVICES OR RESOURCES THAT MAY BE PROVIDED THROUGH OR BY ANY SUCH THIRD PARTY OR ANY CHANGES TO SUCH THIRD PARTY ITEMS. 19. Definitions. a. "Confidential Information" means the provisions of the Agreement (including, but not limited to, the financial terms herein) and any information disclosed by a Party (the "Disclosing Party") to the other Party (the "Receiving Party"). Information will not be deemed Confidential Information hereunder if the Receiving Party can prove by documentary evidence that such information: (a) was known to the Receiving Party prior to receipt from the Disclosing Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (b) becomes known (independently of disclosure by the Disclosing Party) to the Receiving Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (c) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the Receiving Party; or (d) is independently developed by the Receiving Party without the use of any Confidential Information of the Disclosing Party. b. "Customer Content" means the clinical, financial, administrative and demographic patient information that Customer or its Users access, store or manage using the Software or Services. c. "Delivery Date" shall mean the date on which (i) Customer received the physical delivery of the media containing the Software; (ii) Customer received electronic delivery of the Software; or (iii) if the Software is being hosted by eMDs, Customer was granted access to the Software. d. "Documentation" shall mean printed or electronic information relating to the Software and Services and generally made available to eMDs' customers, which may be revised from time to time by eMDs posting information regarding an updated version of the Documentation on eMDs' website or such other location or in such other manner as may be designated by eMDs from time to time. e. "Full Access" shall mean that all available functionality of the Software is enabled for use by Customer and its Users. "Hosting Solution" means the hosting services provided by eMDs pursuant to the applicable Service Schedule. g. "Limited Access" shall mean that all available functionality of the Software is disabled and cannot be used by Customer or its Users except for those functions that provide Customer with read-only access to and the ability to extract existing Customer Content. h. "Provider" shall mean any person who renders health care services and is employed by or under contract with Customer to render such services. I. "Services" means the services provided by eMDs to Customer pursuant to the Agreement. j. "Software" means the software (including any applicable Third Party Items) identified in the Order Form. Hosted General Terms and Conditions Customer Initials _ Page 8 of 10 © 2017. Confidential. Rev. 10/2017 eMDs k. "Third Party Items" means Third Party Software and Third Party Services. I. "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. m. "Third Party Services" shall mean services that may be delivered as part of the Services, which are provided by third parties. n. "User" shall mean (i) an employee of Customer or (ii) an individual who is under Customer's supervision and control, who Customer has provided with access to the Software or Services. 20. Miscellaneous. a. Non -Solicitation. Neither party shall, without the prior written consent of the other party, offer employment to or discuss employment with any of such other party's employees during the term and until one year after this Agreement is terminated, provided, the foregoing does not prohibit a general non -targeted solicitation of employment in the ordinary course of business or the hiring of an individual six months or longer after termination of employment of the employee by the other party. b. Use of Customer's Name. eMDs may use the name of Customer, with reference to the existence of this Agreement, without consent, in its list of customers which it may use for marketing purposes. c. Substantial Performance and Disputed Obligations. eMDs' 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. d. Non -disparagement. Both parties agree at all times during and following the term of this Agreement to refrain from making oral or written derogatory or disparaging remarks, directly or indirectly, concerning the other party, its officers, its directors, its employees, their professional competence or the Software, Documentation or Services. e. Discount Reporting. An Order Form may contain a discount that Customer is required to report in its cost reports or another appropriate manner under applicable federal and state anti -kickback laws, including 42 U.S.C. Sec. 1320a-7b(b)(3)(A) and the regulations found at 42 C.F.R. Sec. 1001.952(h). Customer will be responsible for reporting, disclosing and maintaining appropriate records with respect to the discount and making those records available under Medicare, Medicaid or other applicable government health care programs. f. Notices. All notices will be in writing and sent by certified mail, return receipt requested, courier, or facsimile or electronic mail to the addresses noted in the Order Form. Customer shall notify eMDs via email to Licensing@eMDs.com with any updates or changes to the Customer's primary email address, mailing address or phone number preferably at least thirty (30) days prior to the change, or as soon as possible prior to or after such change. g. Amendment. This Agreement can only be modified by a written agreement duly signed by authorized persons on behalf of eMDs and Customer. h. Severability. If any provision of this Agreement is invalid or is unenforceable, the parties intend that the remainder of the Agreement will be unaffected. i. Relationship of the Parties. The parties are independent contractors. Nothing in this Agreement is intended to create a partnership or joint venture between the parties. Neither party is authorized to bind the other party to any agreement or other obligation without the written consent of the other party. j. Waiver. No waiver, in whole or in part, of any right or remedy provided for in this Agreement shall operate as a waiver of any other right or remedy. No delay on the part of either party in the exercise of any right or remedy shall operate as a waiver thereof. Hosted General Terms and Conditions Customer Initials Page 9 of 10 0 2017. Confidential. nev.10/2017 eMDs k. Assignment. Customer may not assign this Agreement or any of its rights hereunder without the prior written consent of eMDs, and any purported assignment without the requisite consent shall be void and without force or effect. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns. I. Governing Law and Venue. This Agreement, and any dispute that may occur under or related to this Agreement, shall be governed by and construed in accordance with the laws of the State of Texas without regard to conflict of law principles, and of the United States of America to the extent such federal laws may pre-empt any applicable Texas law. Any dispute may only be initiated and maintained in the appropriate state or federal court in Travis County, Texas. Prior to the commencement of any formal proceedings against a party, the parties shall first attempt in good faith to reach a negotiated resolution. m. Force Majeure. With the exception of Customer's payment obligation, a Party will not be in breach or liable for any delay of its performance of this Agreement caused by natural disasters or other unexpected or unusual circumstances reasonably beyond its control. n. Third Party Beneficiaries. There are no third party beneficiaries to this Agreement. o. Merger. These General Terms and Conditions, together with the Order Form and any applicable Service Schedules, Exhibits, Attachments and Statements of Work constitute the entire contract between the Parties with respect to the subject matter thereto and supersede all previous written, and all previous or contemporaneous oral, negotiations, understandings, arrangements. p. Counterparts. This Agreement may be executed in multiple counterparts by a duly authorized representative of each party. q. Survival. All terms which by their nature survive termination shall survive termination or expiration of the Agreement but not limited to, Sections 9 (Customer Content), 10(c) (Audit), 11(e) (Effect of Termination), 12 (Confidential Information), 14 (Disclaimers and Limitation of Liability), 15 (Indemnification), 17 (Questions Related to Customer Account Ownership), and 20 (Miscellaneous). r. Interpretation. If an ambiguity or question of intent or interpretation arises, this Agreement will be construed as if drafted jointly by the Parties, and no presumption or burden of proof will arise favoring or disfavoring either Party by virtue of the authorship of any of the provisions of this Agreement. Hosted General Terms and Conditions Customer Initials Page 10 of 10 0 2017. Confidential. Rev.10/I017 eMDs Hosting Solution Service Schedule 1. eMDs Responsibilities for Hosting Solution. a. Project Management Services. eMDs will provide the following project management services in connection with the Hosting Solution: ■ Proiect Management — eMDs's Project Manager will develop a detailed plan outlining Customer's technical and operational requirements, and coordinate planning discussions between Customer and eMDs technical teams. eMDs's Project Manager will manage the relocation, migration and application installation in the eMDs' data centers as required, and will provide integration support during the "Go Live" period as defined in the project plan. . Communication—eMDs's Project Managerwill act as single point -of -contact for Customer during the initial stages of the project, and work directly with Customer's Primary Contact to coordinate the transition of services to eMDs' Hosting Solution. eMDs' Project Manager will convey necessary transition information regarding the Customer to eMDs' support staff to attempt to provide a seamless transition. ■ Documentation — eMDs' Project Manager will document Customer's end -state environment, and define the Customer -specific change management processes to be used. The Project Manager will also capture Customer -specific support requirements including escalation, reporting methods, and status meeting schedules. b. Customer Care for Hosting Solution. eMDs will provide Customer with an online interface to request support from eMDs and to make change management requests. c. Monitoring Services. eMDs provides 24x7x365 uptime monitoring of the Hosting Solution. This monitoring may require eMDs to access and disclose Customer Content contained in the Hosting Solution provided that such access and disclosure is done in accordance with the Business Associate Agreement between the parties or is otherwise permitted or required by any law or regulation. To the extent that such monitoring reveals any suspected violations of applicable law, eMDs shall fully cooperate with law enforcement authorities in investigating suspected violations. d. Change Management Managed Change Requests — eMDs utilizes a change management tracking tool to ensure change requests are appropriately requested, reviewed, approved, and implemented. • Software Changes — Provided that Customer has paid the applicable support and maintenance fee for the Software, eMDs will deploy new releases of the Software in the Hosting Solution. eMDs will deploy the new release in Customer's production Hosting Solution during the disclosed maintenance window. ■ 5ystem Administration — eMDs will provide regular routine system administration and support services necessary to maintain the Hosting Solution environment. Planned maintenance will occur between 11PM CT to 1AM CT every Wednesday and each Sunday from 12:01AM until 6:OOAM CT. eMDs may also provide emergency security patches as needed. ■ Managed Roll -hack &_ Reco_very — eMDs will work with Customer to develop roll -back and recovery procedures in the event that any changes that are implemented do not perform as tested. eMDs' staff will manage the roll -back process when required. e. Security ■ Managed Firewalls & VPNs — eMDs will implement and manage dedicated Firewalls and VPN solutions for Customer designed to prevent unauthorized access to the Hosting Solution. Management activities include: monitoring Firewalls & VPN devices for errors and alerts; managing VPN connectivity; implementing patches & updates; performing systems administration of Firewall & VPN environments; problem determination, troubleshooting & resolution of critical errors and events. eMDs will notify Customer as soon as practicable of any Hosting Solution Service Schedule Customer Initials Page 1 of 6 © 2017. Confidential. Rev. 10b2017 eMDs known security breaches or vulnerabilities in the Hosting Solution.' Virus Protection — eMDs will install and manage Virus/Malware/Trojan protection software for the Hosting Solution. f. Backup Administration. eMDs will monitor and administer hourly incremental and full weekly disk backup. eMDs will also monitor and administer weekly full backups with offsite storage with a 30 day retention period. Longer offsite retention periods are available, but will require additional costs for additional storage fees. g. High Availability & Support ■ Comprehensive System Administration — eMDs will provide comprehensive systems administration services for the Hosting Solution, which include: installing operating systems; performing operating system updates & patches; creating, modifying & removing user accounts; managing remote access; and providing administration support as needed the Software installations and upgrades. ■ High Availability —eMDs will make the Hosting Solution available in accordance with the Service Level Agreements ("SLAs") set forth in Attachment 1. . Support — eMDs will provide support for the Hosting Solution as set forth in Attachment 1. 2. Customer Responsibilities. The responsibilities listed in this section are in addition to those responsibilities specified in the Agreement. eMDs' performance is predicated upon the following responsibilities being managed and fulfilled by Customer: a. Support & Maintenance Agreements. Customer will maintain its support and maintenance for the Software by paying the applicable subscription, hosting, support and maintenance fees in accordance with the Agreement. b. Equipment Requirements. Customer is responsible for procuring for its users, at Customer's expense, all hardware, software and Internet connectivity necessary to access the Hosting Solution. Such hardware, software and Internet connectivity must meet the requirements set forth the Documentation. c. System Security. Customer is solely responsible for maintaining the confidentiality of any password(s) and access codes given to access the Hosting Solution, and is fully responsible for all activities that occur under those password(s) and access codes. Customer agrees to notify eMDs immediately of any unauthorized use of its password(s). d. Acceptable Use. Customer may only use the Hosting Solution for lawful purposes and in accordance with eMDs' Acceptable Use Policy as may be posted from time to time in the eMDs Legal Documents Resource Center on eMDs Support Center and the Agreement. Customer may not use the Hosting Solution, Software or Services in any manner that could overburden, disable, damage, or adversely impact the eMDs Software, Services, network, any server, any equipment or facilities, or interfere with any other party's use and enjoyment of the Software, any Services or the Hosting Solution. Customer agrees to not attempt to gain unauthorized access to any Software, Services, other accounts, computer systems or networks connected to any eMDs server or to any of the Software or Services, through any unauthorized means, such as password or credential guessing, hacking, or any other inappropriate method. Customer may not obtain or attempt to obtain any materials or information through any method other than as intentionally made available through the Services. e. Customer Changes. Customer certifies the information submitted in the initial Order and Agreement (and all attachments, if any, submitted with this form by Customer) is true and correct. The Customer agrees and understands that as a condition to the Customer's Agreement with eMDs, the information provided in the Agreement and all other Customer account information must be kept current, and the Customer agrees to notify eMDs in writing at least sixty (60) days in advance of any changes, or as soon as possible before or after such a change occurs or Customer becomes aware such a change is likely to occur. Prior to making any changes (hardware, software, connections, networking, etc.) to Customer's own technology environment, Customer will carefully I For security and administrative reasons only, the website administrators will have access to all files on the server. eMDs is not responsible if Customer makes changes to default security settings which allow access to Customer data. Hosting Solution Service Schedule Customer Initials Page 2 of 6 © 2017. Confidential. Rev 10/2017 I, 1LT consider the impact in relation to the then current Documentation. If such changes are not expressly within any such then current standard documentation of eMDs, Customer agrees to contact eMDs to reduce any likelihood that the change might adversely impact the Customer's use of the Software and Services and to allow eMDs to provide input about the method and manner of implementing the change to assist the Customer's transition and mitigate any adverse impact, time and/or expenses that may result from such a change, and Customer will be solely responsible for any such change that Customer may elect to implement. f. Notification of Incident. Customer will provide immediate written notification to eMDs of any actual or suspected unauthorized use (both for an isolated instance and for any continuing instance(s)) of the Software or Services of and to the extent Customer is aware of any such use. Customer agrees to use commercially reasonable efforts to follow up and ensure that eMDs is made fully aware of any such situation. eMDs may take actions that it believes are reasonable and necessary to address any risk to the Software or Services resulting from such actual or suspected unauthorized use. g. User Enrollment. Customer shall provide to eMDs an accurate and complete list of all Users on a form to be provided by eMDs (the "User List"). eMDs is expressly relying upon Customer to prepare and maintain an accurate User List and eMDs expressly disclaims any responsibility to verify the accuracy of the User List. Customer shall update the User List whenever a User is added or removed and shall deactivate such User in the Software. eMDs shall bear no responsibility for Software or Services access by any User whose employment, contract or affiliation with Customer is terminated or who otherwise has his or her access to the Software or Services curtailed by Customer, if Customer did not immediately notify eMDs of such termination or curtailment. h. Data Extract Upon Termination. Customer is responsible for ensuring that it has a copy of all of its Customer Content and any other data maintained in the Software prior to termination of the Hosting Solution or the Agreement. Customer may extract such Customer Content and other data using instructions provided by eMDs. If Customer requires eMDs professional services with respect to such extraction, eMDs will provide such services on a time and materials basis. 3. Scope of Use Limits. Customer may not use the Software or Services as a source, intermediary, reply to address, or destination address for any denial of service or other abusive activities. Customer is responsible for ensuring there is no excessive overloading on Hosting Solution. Use of the Hosting Solution that causes the Hosting Solution to incur bandwidth or server loads beyond a reasonable level, as determined by eMDs, is prohibited and may result in suspension. In the event Customer exceeds Customer's allotted disk space, Customer will incur expansion fees as set forth in the Order Form. 4. Customer Customizations. Customer may use tools provided within the Software to customize certain components of the Software and Services including, but not limited to, rules, templates and alternate descriptions of content ("Customizations"). Customer represents and warrants that (i) Customer has all necessary rights to create or use any such Customizations; (ii) Customer is solely responsible for all aspects of such Customizations; and (iii) such Customizations do not violate the rights of any third party. Customer grants to eMDs a non-exclusive, worldwide, perpetual, royalty free license to reproduce, modify, display, perform, adapt, transmit, distribute, improve, sell and otherwise use Customizations in connection with eMDs' performance under this Agreement or the provision of software and services to other eMDs customers. S. De -Identification. Customer agrees that eMDs may extract Customer Content from any existing database and de -identify the Customer Content in accordance with HIPAA to create a de -identified data set. Customer grants to eMDs a nonexclusive, worldwide, paid-up, royalty -free, perpetual and irrevocable right and license to create derivative works of the de -identified data set and to use, copy, process, analyze, execute, reproduce, display, perform, transfer, distribute, and sublicense the data set and such derivative works in any technology now existing or later developed. Subject to the Customer's sole continuing ownership of the Customer Content, eMDs shall own all such de -identified data sets, and all products, solutions and services that it creates using the data sets, and all of the intellectual property rights embodied in and related to the data sets and such products, solutions and services. 6. Internet Use Risks and Online Security and Privacy. Customer understands that the internet and any use of the internet is not a completely secure, completely private, or completely reliable system, and that the purpose of the Hosting Solution is to allow Customer and Customer's Users easy access to the Software through the internet. eMDs Hosting Solution Service Schedule Customer Initials Page 3 of 6 0 2017. Confidential. Rev 10%2017 eMDs will take those precautions eMDs deems reasonable and appropriate in its sole discretion to secure the Software and Services, but eMDs makes no warranty that the Software and Services will be uninterrupted, error -free, or completely secure against misuse or attack of any form by end users or other individuals or entities. The servers used to provide the Hosting Solution are physically located in the United States of America and as such all content will be subject to the laws of the United States of America. Customer is required to only use internet (online) connections and internet services that are each provided from within the United States and that are: (1) properly secured and protected from unauthorized and illegal use, and (2) in compliance with the applicable laws and regulations of the United States. 7. Monitoring and Remote Access. Customer agrees that eMDs or its designees may monitor Customer's use of the Hosting Solution and also have access to Customer's computer hardware and media, by direct or remote access, to verify Customer's compliance with this Agreement and perform the Services. Hosting Solution Service Schedule Customer Initials Page 4 of 6 © 2017. Confidential. Rev. 10/2017 eMDs Attachment 1— SLAs Software and Service Availability eMDs warrants that the Hosting Solution will be available 99.7% of the time in any calendar month (the "Availability SLA"). This Availability SLA will not apply for any performance issues caused by the following, which are collectively referred to as "Excluded Downtime": • Customer's hardware, equipment or non-eMDs provided software; • Customer's failure to provide the necessary bandwidth or equipment in accordance with the Documentation; • factors outside or beyond eMDs' reasonable control, including, but not limited to, internet connectivity; a force majeure event; • any actions or inactions of Customer or any third parties not affiliated with eMDs; • eMDs' response to or otherwise implementing or addressing a specific security vulnerability in the Hosting Solution; • request from the Customer to modify or otherwise adjust the Hosting Solution; e scheduled maintenance of the Hosting Solution; or • the Software or Services other than the Hosting Solution. The Availability SLA will be calculated monthly during the term using the following formula (and will be rounded to the nearest one-tenth of a percentage point): Availability = [(Base Time — Unscheduled Downtime) / (Base Time)] x 100 a. "Base Time" equals the product of the number of days in the applicable month multiplied by 24 hours multiplied by 60 minutes minus Scheduled Downtime and Excluded Downtime. b. "Unscheduled Downtime" equals the aggregate total of all minutes during the month during which the Hosting Solution is not operational where the failure is not caused by Excluded Downtime. Unscheduled Downtime begins upon a report from Customer to the eMDs Help Desk that the Hosting Solution is not operational and ends when eMDs notifies Customer that the issue has been remedied such that the Hosting Solution is once again available. c. "Scheduled Downtime" equals the aggregate total of all minutes of planned and scheduled maintenance performed during the month to perform any necessary hardware, OS, network, database, application software maintenance, repair, upgrades, and updates. The amount of scheduled downtime may vary from month to month depending on the level of change to the Hosting Solution such as the project implementation phase, adding new products, upgrading products, emergency security patches, etc. Hosting Incident Management 1. Support. eMDs shall maintain a Help Desk, which will be the primary point of contact for all queries and communications regarding Hosting Solution incidents. The help desk will be reachable by telephone or eMDs' Customer Support Center in accordance with the Documentation. 2. Severity Level Definitions • "Severity Level 1" means the total outage of service or availability for network connectivity, (internet or internal), or mission critical application availability such that Customer cannot continue its business due to the severity of the outage. Hosting Solution Service Schedule Customer Initials Page 5 of 6 © 2017. Confidential. Hev.10/2017 • "Severity Level 2" means a material degradation of service or availability for network connectivity (internet or internal), or network device failure, mission critical application availability, or production hardware components such that Customer can continue operating its business, but in a negatively impacted and degraded mode. 3. Communication During Incident Management. Unless otherwise noted, eMDs and Customer will communicate via the eMDs Ticket System during the incident management process. All communications shall include: • Support ticket reference number • Time and date of transaction in question • Description of incident • List of actions taken to verify and isolate the problem 4. Opening/Reporting an Incident. Customer may report an incident by calling the Help Desk or submitting a ticket via the Customer Support Center. If eMDs becomes aware that a Customer's Software is unavailable during business hours and prior to receiving a notification of such unavailability from Customer, eMDs will use commercially reasonable efforts to send Customer a notification, via Customer Support Center, advising of such unavailability. Regardless of whether eMDs or Customer reported the incident, eMDs will be responsible for opening and tracking the support ticket for the incident until it is resolved. 5. Working the Incident. Once an incident has been reported and a Customer support ticket created, eMDs and Customer will work together to address the incident. This process involves: • An initial response to the incident report: Upon receiving the notification for an opened incident, eMDs will respond to Customer via the eMDs Ticket System. • Status updates: Update intervals will vary depending on the incident severity. • Escalation • Communication and resolution times for working the incident Hosting Solution Service Schedule Customer Initials _ _ Page 6 of 6 © 2017. Confidential. R-10/2017 eMDs Patient Portal Service Schedule 1. Patient Portal Software and Services. Pursuant to the terms of this Service Schedule, eMDs shall provide to Customer eMDs' Patient Portal software, which contains the following functionality: a. Provides secure, web -enabled, remote user access delivering a view for patients and their designated representatives ("Patient Users"); b. Patient Users are able to view their appointments, receive notifications, access other relevant information related to their health condition and pay amounts owed to Customer; c. Customer's Providers and other Users are able to securely exchange messages, electronically deliver results, and share images and files with their Patient Users; and d. Ability for Customer's Users to set up and establish preferences associated with the Patient Portal. 2. Patient Portal Software License. If Customer has purchased the Patient Portal, then Customer's License as set forth in the General Terms and Conditions shall include the Patient Portal. Notwithstanding anything to the contrary in the License, Customer is permitted to provide its patients with access to the Patient Portal pursuant to the terms and conditions set forth in this Service Schedule. 3. eMDs Responsibilities. a. Implementation. eMDs will provide services to deploy the Patient Portal functionality, according to a mutually agreed upon project plan. b. Support. eMDs will provide Customer with support and maintenance for the Patient Portal pursuant to the terms set forth in the Support Service Schedule. c. Training. eMDs will provide Customer with training for supporting Patient Users' use of the Patient Portal. 4. Customer Responsibilities. a. Patient Access. Customer shall provide its Patient Users with access to the Patient Portal. Customer is solely responsible for inviting individuals to become Patient Users; properly identity proofing and authenticating such individuals before providing them with access to the Patient Portal; and providing technical support to Patient Users with respect to their use of the Patient Portal. b. Compliance with Laws. Customer understands and agrees it is responsible for compliance with applicable federal, state and local laws, rules and regulations as it relates to its use of the Patient Portal and its provision of access to the Patient Portal to Patient Users, including but not limited to the Children's Online Privacy Protection Act ("COPPA") and the Health Insurance Portability and Accountability Act ("HIPAA"). c. Available Content. Customer is responsible for defining what clinical content will be available to Patient Users through the Patient Portal and making such content available. d. Patient User Terms of Use. Customer understands and agrees that Patient Users will be required to register to be able to access the Patient Portal. During the registration process or anytime thereafter, Patient Users may be asked to accept terms of use and a privacy policy related to their access to the Patient Portal (collectively, the "Patient Portal Terms"). At a minimum, the Patient Portal Terms must include those provisions which are pre -populated in the Patient Portal Terms by eMDs and which eMDs may change from time to time. Customer is fully and solely responsible for including any additional terms and maintaining such additional terms; provided, however, that such terms shall not conflict with this Agreement or the eMDs pre -populated Patient Portal Terms or impose any obligations on eMDs. e. Unauthorized Use. Customer shall promptly notify eMDs of any unauthorized use or infringement of the Patient Portal or any other eMDs' intellectual property by Patient Users or others, of which Customer becomes aware. eMDs shall have the right, at its expense, to bring an action on account of such unauthorized uses or infringements. Customer shall cooperate with eMDs in such action in such manner as eMDs may reasonably request, at eMDs' cost and expense. Patient Portal Customer Initials Page 1 of 1 0 2015. Confidential. Re 4/2017 Exhibit 1 Business Associate Addendum Customer is a "Covered Entity" under the Health Insurance Portability and Accountability Act of 1996 and associated agency regulations promulgated thereunder (together, "HIPAA"). Pursuant an underlying agreement between Customer and eMDs (the "Agreement"), eMDs provides certain services to Customer and in providing those services may use, disclose, receive, create, maintain or transmit Protected Health Information ("PHI") for or on behalf of Customer, as described in the Agreement, Addendum or Applicable Law.. When providing services to Customer that involve the use, disclosure, receipt, creation, maintenance or transmission to or of PHI for or on behalf of Customer, eMDs is Customer's "Business Associate" under HIPAA and the Health Information Technology for Economic and Clinical Health Act (Public Law 111-5) and associated agency regulations and guidance (the "HITECH Act"). In accordance with HIPAA and the HITECH Act (collectively, "Applicable Law"), the parties have agreed to the provisions of this Exhibit to protect PHI to which eMDs may handle in the performance of its duties for Customer. 1. Defined Terms. Unless otherwise indicated below or elsewhere in this Exhibit, all capitalized terms shall have the meanings provided in the Agreement or 45 C.F.R §§ 160.103, 164.103 and 164.501. a. "Breach" has the meaning assigned by HIPAA, 45 C.F.R. Section 164.402. b. "Privacy Rule" means 45 C.F.R. Part 160 and 45 C.F.R. Part 164, Subparts A and E, Standards for Privacy of Individually Identifiable Health Information. c. "Protected Health Information" or "PHI" means individually identifiable health information as defined in 45 C.F.R § 160.103, limited to the information eMDs receives from, or creates, maintains, transmits, or receives on behalf of, Customer. d. "Security Rule" means 45 C.F.R. Part 164, Subpart C, Security Standards for the Protection of Electronic Protected Health Information. e. Any otherwise undefined terms in the Agreement shall have the meaning provided by HIPAA, if any. 2. Obligations of eMDs. a. Compliance with Privacy and Security Obligations. eMDs agrees that the requirements of HIPAA and the HITECH Act that relate to privacy and security and are made applicable with respect to Business Associates shall be applicable to eMDs. b. Limits on Use and Disclosure. Except as otherwise limited in this Exhibit, eMDs may only use, disclose, create, maintain or transmit PHI to perform functions, activities, or services for, or on behalf of Customer as specified in the Agreement, this Exhibit and as permitted or required by Applicable Law. Except as otherwise limited in this Exhibit, eMDs may also: L Use PHI for the proper management and administration of eMDs or to carry out the legal responsibilities of eMDs under the laws of the United States; to de -identify such information in accordance with 45 C.F.R. § 164.514(b) for eMDs' own business purposes or in connection with the Services; or to provide Data Aggregation services to Customer as permitted by 45 C.F.R. 164.504(e)(2)(i)(b); and ii. Disclose PHI for the proper management and administration of eMDs, provided that disclosures are Required by Law, or eMDs obtains reasonable assurances from the person to whom the information is disclosed that the information will remain confidential and be used or further disclosed only as Required by Law or for the purpose for which it was disclosed to the person, and that the person will notify eMDs of any instances of which it is aware in which the confidentiality of the information may have been breached. c. Minimum Necessary. Any use or disclosure of the PHI will be limited to the minimum PHI necessary for the permitted purpose. eMDs shall comply with any guidance issued by the Secretary regarding compliance with the minimum necessary standard. Business Associate Agreement Customer Initials_ Page 1 of 4 0 2017. Confidential. Rev. 6/2017 ear d. Safeguards. eMDs will implement and maintain reasonable and appropriate administrative, physical and technical safeguards to protect the availability, integrity and confidentiality of the PHI as permitted and/or required by HIPAA and the HITECH Act. e. Reports of Unauthorized Access, Use or Disclosure. eMDs shall report in writing to Customer, without unreasonable delay, (i) any use or disclosure of PHI that is not authorized by this Exhibit or the Agreement including, but not limited to, Security Incidents, and (ii) any Breach of Unsecured Protected Health Information. Notice is deemed to have been given for unsuccessful Security Incidents, such as (i) pings and other unsuccessful broadcast attacks on Business Associate's firewall, (ii) port scans, (iii) log -on attempts, (iv) denial -of -service attacks, and (v) malware, worms, and viruses, so long as they do not penetrate Business Associate's perimeter or are otherwise filtered out by Business Associate's tools (e.g., infected e-mails filtered out by filtering software). eMDs shall deliver such notice no later than twenty (20) business days after the date on which eMDs (or any member of eMDs' workforce or agent of eMDs except the person(s) responsible for the Breach) became aware, or in the exercise of reasonable diligence should have become aware, of such unauthorized use or disclosure or Breach. Notice of any unauthorized use or disclosure or Breach shall, if known, provide a description of the following information to the extent it is reasonably available at the time of notice: (i) the event resulting in the unauthorized use or disclosure or Breach; (ii) the types of PHI that were involved in the unauthorized use or disclosure or Breach; and (iii) what eMDs is doing to investigate, mitigate losses arising from and protect against any similar future unauthorized use or disclosure or Breach. f. Mitigation Procedures. In the event of any unauthorized use and/or disclosure of PHI, eMDs shall work, and where practicable Customer shall work cooperatively with eMDs, to implement procedures for mitigating the harmful effects of such improper use and/or disclosure. g. Access to Information. eMDs will make available to Customer the PHI in a Designated Record Set, in a time and manner mutually agreed upon by the parties, as necessary to satisfy Customer's obligations under 45 C.F.R. 164.524. h. Availability of Protected Health Information for Amendment. Upon receipt of a request from Customer for the amendment of an individual's PHI or a record regarding an individual contained in a Designated Record Set (for so long as the PHI is maintained in a Designated Record Set), eMDs agrees to provide such information to Customer for amendment and incorporate any such amendment as may be required by 45 C.F.R. §164.526. In the event any individual requests an amendment to PHI directly from eMDs, eMDs shall forward such request to Customer. Any review and consideration of a requested amendment shall be the responsibility of Customer. I. Accounting of Disclosures. In accordance with 45 C.F.R. § 164.528, eMDs agrees to produce, and maintain for at least six (6) years, a record of any disclosure of the PHI, which record will include, for each disclosure, the date of disclosure, the name and address of the recipient, a description of the PHI disclosed (if known), the name of the individual who is the subject of the PHI (if known) and the reason for disclosure. Upon request from Customer, eMDs will make its record of disclosure available to Customer within the time frame and in the manner permitted and/or required by Applicable Law or as otherwise agreed by the Parties in writing. In the event the request for an accounting is delivered by an individual directly to eMDs, eMDs shall forward such request to Customer. Customer shall have the responsibility to respond to the request. j. Subcontractors. eMDs shall ensure that any subcontractor to whom it provides PHI agrees to the same restrictions and conditions that apply through this Exhibit to eMDs. k. Availability of Books and Records. eMDs agrees to make its internal practices, books and records relating to its uses or disclosures of the PHI available to Customer, or, if directed in writing, the Secretary for purposes of determining compliance with Applicable Law, subject to attorney-client and other applicable privileges. I. eMDs' Performance of Customer's Obligations. To the extent eMDs is to carry out one or more of Customer's obligations under the Privacy Rule, at Subpart E of 45 C.F.R. Part 164, eMDs will comply with the requirements of the Privacy Rule that apply to Customer in the performance of such obligations. Business Associate Agreement Customer Initials Page 2 of 4 © 2017. Confidential. Rev. 9/2017 eMDs m. Sale of PHI. eMDs will comply with the prohibition on the sale of electronic health records and Protected Health Information set forth in 42 U.S.C. 17935(d). 3. Obligations of Customer. a. Notice to eMDs. Customer will notify eMDs of any of the following to the extent that they affect eMDs' use or disclosure of PHI or its rights and obligations with respect to PHI (i) any limitation in its notice of privacy practices in accordance with 45 C.F.R. § 164.520; (ii) any changes in, or revocation of, permission by an Individual to use or disclose the PHI; and (iii) any restriction on the use or disclosure of PHI that Customer has agreed to in accordance with 45 C.F.R. §164.522. b. Minimum Necessary. Customer will make reasonable efforts to disclose to, provide to, or request from, eMDs only the minimum Protected Health Information necessary for eMDs to perform or fulfill a specific function required or permitted under the Agreement. c. Mitigation. Customer will take immediate steps to notify eMDs and to mitigate an impermissible use or disclosure of PHI whether from eMDs to the Customer or from the Customer to eMDs, including the Customer's staff, employees and agents who disclose and receive PHI to and from eMDs in the course and scope of their employment, such as obtaining the recipient's satisfactory assurances that the information will not be further used or disclosed (through a confidentiality agreement or similar means between the Customer and its staff, employees and agents) or will be destroyed. d. No Violation of Law. Customer will not request, direct or cause eMDs to use or disclose PHI in a manner that would violate Applicable Law. 4. Term and Termination. This Exhibit shall become effective on the Effective Date of the Agreement, unless the Parties otherwise mutually agree in writing to an alternative effective date. This Exhibit will automatically terminate upon the termination or expiration of the Agreement. Notwithstanding any provisions in this Exhibit or the Agreement to the contrary, either party may terminate this Exhibit and the Agreement if it determines that the other party has breached a material term of this Exhibit and has not cured such breach with thirty (30) days of receiving notice of the breach from the non -breaching party. Upon termination of the Agreement or this Exhibit, if feasible, eMDs will return or destroy the PHI, unless required otherwise by Applicable Law. If return or destruction of the PHI is not feasible, eMDs will extend the protections of this Exhibit until the PHI can be returned or destroyed and this obligation shall survive termination of the Exhibit. S. Interpretation. Any ambiguity in this Exhibit shall be resolved in favor of a meaning that permits Customer and eMDs to comply with Applicable Law. Any and all references in this Exhibit to a statute or regulation mean the section as in effect or as amended. This Exhibit will be governed by the governing law set forth in the Agreement and any action brought under this Exhibit will be brought in accordance the Agreement. The parties further agree that the language of this Addendum shall not be construed presumptively against the drafter or any of the Parties to this Addendum. 6. HIPAA Amendment. Upon the effective date of any amendment or issuance of additional regulations ("change") to HIPAA, or any other law applicable to this Exhibit, the Exhibit will automatically be amended so that the obligations imposed on a Party of the Parties remain in compliance with such requirements, unless the cost for eMDs to comply with the change to HIPAA is unreasonable. If the cost to eMDs to comply with the change is unreasonable, the Parties shall negotiate eMDs fees or charges which will permit eMDs to comply. If the Parties cannot agree to new fees or charges, eMDs may terminate this Business Associate Agreement and any underlying agreement for which this Business Associate Agreement is made a part. 7. IN NO EVENT SHALL EMDS OR ANY PROVIDER OF THIRD PARTY ITEMS BE LIABLE TO CUSTOMER OR ANY THIRD PARTY UNDER THIS EXHIBIT FOR ANY ACT OR OMISSION THAT DOES NOT RISE TO THE LEVEL OF WILLFUL MISCONDUCT OR GROSS NEGLIGENCE, OR FOR ANY INCIDENTAL, CONSEQUENTIAL, PUNITIVE, SPECIAL, EXEMPLARY OR OTHER INDIRECT DAMAGES OF ANY KIND OR NATURE INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF DATA, LOSS OF BUSINESS, WHETHER A CLAIM FOR ANY SUCH LIABILITY OR DAMAGES IS PREMISED UPON BREACH OF CONTRACT, INDEMNITY, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER THEORIES OF Business Associate Agreement Customer Initials Page 3 of 4 © 2017. Confidential. Rev 9/2017 eMDs LIABILITY, EVEN IF EMDS HAS BEEN APPRISED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES OCCURRING. Notwithstanding anything in this Exhibit to the contrary, in no event shall eMDs' or its licensors' total liability arising from or relating to this Exhibit exceed an amount equal to amounts paid by CUSTOMER to eMDs for the service giving rise to the claim in the three (3) months prior to the event giving rise to the claim, whether a claim for any such liability or damages is premised upon breach of contract, indemnity, breach of warranty, negligence, strict liability, or any other theories of liability, even if eMDs has been apprised of the possibility or likelihood of such damages occurring. Business Associate Agreement Customer Initials Page 4 of 4 © 2017. Confidential. Rev. 8/2017 W�,-Tj l: Auto Debit Authorization The Customer hereby authorizes eMDs to initiate debit entries to the Customer's account indicated below and the financial institution named below to debit the same to such account. This authorization is for the purpose of paying software and services fees and the practice understands that amounts may vary. Bank Name: Branch City: Account Number: Routing Number: Authorization Signature: Authorization Printed Name: Practice Tax ID Number: This authority is to remain in full force and effect until eMDs has received written notification from the Customer of its termination in such time and manner as to afford eMDs and the financial institution named above a reasonable opportunity to act on it. Auto Debit Authorization Page 1 of 1 0 2017. Confidential. Rev. 4/2017