Exhibit 10.19
Healthcare Quality Solutions, Inc.
Information Management and Operations Services Agreement
This Agreement is entered into as of February 24, 2003 (the "Effective
Date") by and between Healthcare Quality Solutions, Inc., (hereinafter "HQS") a
Florida corporation with a principal place of business at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇ ▇▇▇▇▇, and Amedisys, Inc., (hereinafter
"AMEDISYS") with a principal place of business at ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
1. HQS Service
1.1. Service Access. HQS shall permit AMEDISYS, under the terms and
conditions specified herein, to access and to use, on a non-exclusive basis, the
HQS Services defined and contracted on the attached Service Exhibits (the
"Service"). The Service is a HQS-hosted, Internet accessed, multi-user,
post-acute health care information system that permits AMEDISYS to accomplish
certain information management functions, as described in the Service Exhibits.
Prior to allowing access to and use of the Service by AMEDISYS, AMEDISYS shall
agree to abide by the terms and conditions of this Information Management and
Operations Services Agreement ("AMEDISYS Agreement").
1.2. Service Modifications. From time-to-time HQS may modify the Services
specified in the Service Exhibits. In addition, HQS may offer to the market new
or enhanced products and services that AMEDISYS may choose to use. In the event
that Amedisys chooses to use these new and enhanced products and services they
will be defined and contracted for on Service Exhibits that will be attached to
and made part of this Agreement. HQS reserves the right to revise the prices for
these modified, enhanced or new products and services. Such changes, if any,
will be announced 30 days prior to their effective date and will be incorporated
into Exhibit A, the "HQS Data Services Pricing Schedule." In no event shall any
revision to the prices for these modified or enhanced products and services
exceed 5% of the previous AMEDISYS contract amount in any given calendar year.
1.3. Equipment. The Service shall be accessible from remote personal
computers and/or servers, and other access devices subject to HQS' Service and
prior written consent and system compatibility. AMEDISYS shall be responsible
for all charges associated with connecting to the Service and Amedisys shall be
responsible for purchasing, installing, configuring and maintaining all
equipment and software necessary to access and use the Service (collectively,
the "Equipment"). HQS will provide AMEDISYS with a list of the specifications
and Equipment recommended for accessing the Service, which AMEDISYS is
responsible for implementing. In no event, however, shall such lists be
considered an endorsement or warranty by HQS of any Equipment. HQS shall not be
responsible for any Equipment or other products or services ordered or used by
AMEDISYS acquired from any third party. HQS further agrees to provide training
on the server configuration, application and system software and appropriate
settings for each, in addition to third party vendors. HQS further agrees to
provide a current system architecture document detailing server configurations
and a current application infrastructure document detailing the application
software components. HQS agrees to present this information to AMEDISYS and be
available for questions and answers relative to these documents.
1.4. Service Servers. The Service servers shall remain the property of HQS
and shall not be required to be dedicated to serve AMEDISYS or any or any other
person or entity exclusively. HQS has partnered with Qwest Communications and
has located these servers in an off-site hosting facility (Qwest CyberCenter)
that provides:
(a) Disaster resiliency (b) Power redundancy (c) Redundant
Internet access (d) Fire detection and suppression
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(e) Environmental control (f) 24x7 system and monitoring and
management (g) 24x7 security guards (h) Indoor and outdoor
surveillance cameras
In addition to the above the application components are architected to maximize
system uptime through built in redundancy and independence throughout the
application infrastructure. Redundant hardware for key application components is
available to minimize downtime in the event of failure.
HQS agrees to provide similar attributes in the event that a different hosting
vendor is selected.
1.5. License. In order to permit access to and use of the Service by
AMEDISYS, HQS shall permit AMEDISYS access to and use of the Service and the
authorized data associated with the Service to the extent necessary to perform
the tasks contemplated in this Agreement under the terms and conditions
contemplated in this Agreement.
1.6. Connections. HQS shall maintain the connection of its servers with the
Internet through a reputable Internet connection provider to permit appropriate,
reliable and redundant Internet access. HQS shall not be responsible for the
function, performance or condition of any equipment, software, data or
communication line outside of the HQS servers, except as may be a consequence of
not having said access provided through a reputable Internet service provider.
AMEDISYS shall, at AMEDISYS sole expense, set up a relationship between AMEDISYS
and a reputable Internet connection provider in order to permit appropriate
Internet access to the Service for the Equipment. HQS shall not be responsible
for maintaining or paying for that relationship or for maintaining any
connection between AMEDISYS and the Internet.
1.7. Help Desk. HQS shall maintain a help desk (the "Help Desk") that shall
provide telephone advice and guidance for AMEDISYS, as defined in HQS support
policy (the "HQS Support Policy")(See Appendix 1.7 for the current version)
concerning the effective use of the Service. The Help Desk is designed to
provide assistance on matters that are specific to the Service and not on more
general matters such as computers, printers, networks, computer programming, use
of third-party software, use of the Internet or use of computers generally. HQS
may, in HQS sole discretion on a case-by-case basis and subject to additional
service charges as defined in the HQS Support Policy, also provide telephone
advice and guidance concerning these more general matters.
1.8. Use of the Service. Except as expressly provided in this Agreement,
AMEDISYS shall not be entitled to license, sell, assign, rent, loan, distribute
or otherwise make the Service available for use by itself or through any other
party. In no event shall AMEDISYS copy, alter, reverse engineer, decompile,
disassemble, re-engineer or otherwise attempt to discover the source code or the
structural framework of the Service or its Software except as provided in the
Escrow Agreement between the parties to be executed within 30 days of the
effective date of this Agreement.
1.9. Billing for Services and Accounts Receivable. HQS shall invoice
AMEDISYS in accordance with the AMEDISYS Agreement, the HQS Data Services
Pricing Schedule, or as amended by AMEDISYS per Paragraph 1.2, and HQS
accounting policies in effect at the time. HQS reserve the right to restrict
Service to AMEDISYS if AMEDISYS is in default of AMEDISYS Agreement.
1.10. Education. HQS shall provide education services in the effective use
of the Service and the entry and recovery of data using the Service. If AMEDISYS
requires that any individuals receive additional education, HQS shall schedule
such education consistent with HQS other business commitments and shall charge
for such education as an additional service as set forth in Section 4 below.
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2. GENERAL COOPERATION
HQS and AMEDISYS jointly recognize that the achievement and performance of HQS
respective duties and responsibilities under this Agreement and the proper and
full function of the Service require cooperation and coordination between the
parties. HQS and AMEDISYS shall each designate a representative who shall be
reasonably available during AMEDISYS regular office hours to confer together in
order to promote the efficient performance of this Agreement and to promote
clear communication between the parties regarding that performance. Each party
shall promptly report to the other any Service, equipment or software
malfunction, error, breakage or security breach that involves AMEDISYS or
AMEDISYS data that AMEDISYS detects or that AMEDISYS believes is imminent or is
likely to have occurred as it relates to the Service or the use thereof.
3. DUTIES AND RESPONSIBILITIES
3.1. DUTIES AND RESPONSIBILITIES OF AMEDISYS
3.1.1 Information, AMEDISYS shall provide HQS with
complete, accurate and timely information needed to
permit HQS to provide the services contemplated in
this Agreement and the attached Service Exhibits.
(a) AMEDISYS shall promptly enter into the Service
all information necessary to populate the appropriate
Service forms and/or screens; and
(b) AMEDISYS shall code and record all patient
services in conformity with all applicable statutory
and regulatory requirements, and AMEDISYS shall enter
all patient data changes into the Service.
3.1.2 Access. AMEDISYS shall require one or more of AMEDISYS personnel to
complete the course of education offered by HQS for use of the Service. AMEDISYS
shall at all times maintain at least two (2) individuals at each site who are
proficient in the Service use, and AMEDISYS shall designate one or more such
individuals as authorized to access and use the Service on AMEDISYS behalf,
AMEDISYS shall assign a manager at each site to set the level of their
privileges. AMEDISYS shall not permit persons without authorization to access or
use the Service.
3.1.3 Usage. AMEDISYS shall comply with and shall cause all of AMEDISYS
employees, agents and other personnel to comply with the requirements and
conditions imposed by this Agreement.
3.1.4 Consents. AMEDISYS shall be solely responsible to make disclosures
and to obtain consents from patients and payers as necessary to permit HQS to
perform the Service and to access and use the data as contemplated in this
Agreement. AMEDISYS shall at all times be solely responsible to ensure that (i)
AMEDISYS and AMEDISYS personnel are duly authorized to submit the data they
enter using the Service, (ii) AMEDISYS and AMEDISYS personnel are duly
authorized to access the data requested or retrieved in connection with use of
the Service, and (iii) HQS is authorized to receive, process and use the data
that AMEDISYS enters using the Service as contemplated by the Agreement.
3.2. DUTIES AND RESPONSIBILITIES OF HEALTHCARE QUALITY SOLUTIONS
HQS will regularly upgrade their equipment, software, and staff to insure
that AMEDISYS' work will be processed in a timely manner and meet the following
performance goals:
3.2.1 Upgrades. Regularly update the software and process to meet
regulatory changes in the required time frame for said regulatory changes to
have effect.
3.2.2 Interim File Processing. Post assessments on the website for editing
within 3.5 hours of receiving the assessment images from AMEDISYS. Export to
AMEDISYS unedited assessment data every 2 hours between the hours of 8:00 AM and
6:00 PM EST or on an alternate schedule as mutually agreed in writing.
3.2.3 Daily Export. Export nightly to AMEDISYS edited assessment data that
was marked as "Reviewed" in PPS Editor the previous day.
3.2.4 Simultaneous Editing. Allow all AMEDISYS agencies utilizing the HQS
services to edit their assessments simultaneously, except that by the design of
the application, a particular assessment cannot be edited simultaneously by two
users in PPS Editor. All AMEDISYS agencies will be allowed to execute reporting
program in the "PPS Advantage Suite" simultaneously.
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3.2.5 Resources. HQS agrees to deploy appropriate system resources as
required to maintain commercially acceptable response times that enable users to
perform their duties in a functional environment. HQS will notify AMEDISYS of
any corrective actions AMEDISYS may take if the slow response times are not a
result of HQS system resources.
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3.2.6 Changes. Prevent AMEDISYS employees from changing the Outcomes
Assessment Information Set ("OASIS") data on an edited assessment after it has
been submitted to the state.
3.2.7 Cooperation. Cooperate with AMEDISYS MIS personnel to make the
process of transferring assessment data files between HQS and AMEDISYS an
automated, unattended process.
3.2.8 Timely Support. Maintain a support staff that, during HQS published
hours of support, will provide responses to AMEDISYS support calls within 2
hours of receiving the call if the user identifies the issue as business
critical as defined in the HQS Support Policy.
3.2.9 Documentary Support. Provide AMEDISYS written documentation and
operating instructions on software updates and modifications as provided to all
HQS customers.
3.2.10 Advise of Outages. Advise AMEDISYS MIS department of any planned or
unplanned system outages in a timely manner, not to exceed 1 hour after HQS
gains knowledge of the event.
3.2.11 Access Rolls. Provide AMEDISYS with online access to information
that identifies AMEDISYS employees who are Authorized to use and/or access the
HQS system.
3.2.12 Financial Reporting. Provide AMEDISYS with quarterly financial
information, including a balance sheet, and income statement, and a statement of
cash flows.
4. FEES
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4.1. Base Charges. Except as set forth below with respect to additional
compensation for additional services, AMEDISYS shall pay HQS for the Service
provided under this Agreement and the Service Exhibits at the rates and under
the terms set forth in Service Exhibit A. The rates set forth in Service Exhibit
A may be changed by HQS from time-to-time as defined in the Exhibits or for any
extension of the term of this Agreement (as provided in Section 5.1 below) upon
delivery of notice of the changes to such rates at least thirty (30) days'
before the changes become effective, The extension of the term of this Agreement
(as provided in Section 5.1. below) following delivery of such notice of changes
to the rates shall constitute AMEDISYS agreement to such changes.
4.2. Additional Services Compensation In the event that AMEDISYS orders and
receives additional services in connection with education or the Help Desk as
defined in the HQS Customer Support Policy AMEDISYS shall pay HQS for such
services at the rates specified in Service Exhibit A.
4.3. Other Costs. The rates set forth in the HQS Data Services Pricing
Schedule do not include, and AMEDISYS shall be responsible and pay for, (a) the
Equipment necessary for AMEDISYS to access and use the Service; (b)
communication charges, access fees, levies, tariffs and other costs, expenses or
charges associated with accessing the Service; and (c) installation and testing
of any (i) communication lines, links or interfaces; or (ii) equipment or other
services used by AMEDISYS in connection with the Service.
4.4. AMEDISYS shall pay each ▇▇▇▇ no later than thirty (30) business days
after receipt of HQS invoice. HQS shall have the option in HQS sole discretion
to impose a late charge of 1-1/4% per month on all amounts overdue, except that
imposition of such charge shall not forgive or waive any breach or the
obligation of AMEDISYS to pay amounts billed within the time originally
required.
4.5. Taxes, In addition to the compensation and other costs set forth
above, AMEDISYS shall be responsible to pay all government taxes or charges
assessed by reason of or based upon the provision to AMEDISYS by HQS of services
or goods under this Agreement and the costs of seeking any refund or abatement,
including, without limitation any excise taxes or sales taxes and excluding
ordinary personal property taxes assessed against or payable by HQS, taxes on
HQS net income, and HQS corporate franchise taxes, HQS shall cooperate with
AMEDISYS in pursuing any refund or abatement claims.
5. TERM AND TERMINATION
5.1. Term. The parties agree that as of the Effective Date AMEDISYS has
committed to conduct a Pilot Test of the Service as described on the Sales Order
attached hereto, During the Pilot Test period or on the completion of the Pilot
Test AMEDISYS shall have the option of terminating the Service. Unless AMEDISYS
notifies HQS of its intent to terminate the Service on the completion of the
Pilot Test or unless terminated as provided in Sections 5.3 or 5.4 below, the
term of this Agreement shall be a period of one (1) year, commencing on the
Effective Date. The term shall be automatically extended for successive periods
of one (1) year each, unless either party delivers written notice to the other
party of its election not to extend the term of this Agreement ("Notice of
Termination") at least ninety (90) days before expiration of the then current
term.
5.2. Termination Other Than At End of the Term. Either party may terminate
this Agreement at any time by giving written Notice of Termination to the other
party:
(a) In the event that the other party defaults in performance of any
material provision of this Agreement, and such default continues
and is not cured to the notifying party's satisfaction for a
period of thirty (30) days after written notice to the defaulting
party stating the specific default, except that said period of
thirty (30) days shall be reduced to twenty (20) days in the
event of any failure to pay HQS sums due under this Agreement;
(b) In the event that any representation or warranty made by the
other in this Agreement is false, incorrect, or misleading in any
material respect;
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(c) In the event that the other party commits any material act of
dishonesty, gross carelessness or gross misconduct in performance
of this Agreement, even if the same would not otherwise
constitute a breach of this Agreement; or
(d) In the event that voluntary or involuntary proceedings are
commenced, for the winding up or dissolution of the other party,
for the appointment of a receiver for the assets of the other
party, for the assignment by the other party of its assets for
the benefit of creditors, or for any action or relief taken or
suffered by the other party as bankrupt or insolvent under any
bankruptcy or insolvency laws.
5.3. Termination by Agreement. We may mutually agree in writing to
terminate this Agreement at any time.
5.4. Effect of Termination. Upon termination for any reason (other than as
provided in 5.3):
(a) AMEDISYS shall continue to be obligated to pay and shall pay to
HQS all compensation otherwise payable in accordance with the
terms of Section 4 for all services rendered by HQS prior to
termination of the Agreement;
(b) Each party shall return to the other the proprietary and
confidential information of the other as required in Section 7
below;
(c) HQS shall prohibit access to the service; and
(d) The duties and obligations of the parties set forth in Sections
7, 9, 10.4, 10.6, 10.12, 10.13,10.14, and 10.17 shall remain
fully binding and in full force and effect.
6. SECURITY MEASURES AND PROCEDURES
6.1. Security Measures and Procedures Guide The parties shall follow the
guidelines defined in Appendix 6.1, the HQS Security Measures and Procedures
Guide, to keep communication of information between them secure.
6.2. Breach of Security. In the event of a breach of security or the threat
of such a breach HQS retains the right to deny AMEDISYS or any Username access
to the Service at any time without prior notice and the right to direct any
Username to terminate access to the Service for any reason or no reason without
prior notice, provided that HQS or the Service subsequently shall notify
AMEDISYS within one (1) hour of this event by (i) telephone followed up by a
communication in writing, or (ii) email or delivery of other written notice.
The Authorized User shall not introduce or permit to be introduced into the
Service any virus, worm, Trojan horse or other software routine, program or
mechanism to permit unauthorized access into, to disable, to erase in whole or
in part or in otherwise to adversely effect the Service, the HQS Software, the
Equipment or any equipment maintained or used by HQS.
6.3. Internet Communication. The parties agree that the Security Measures
and Procedures described above are reasonable under the circumstances and that
each party shall cooperate reasonably in the other's attempts to monitor and
strengthen these protections. Both parties acknowledge that in light of the
nature of Internet communication, unauthorized access to and loss or damage to
hardware, software and data may occur despite the Security Measures and
Procedures, Each party agrees that such access, loss or damage shall not be the
responsibility of the other party and shall not create liability of the other
party, if the other party has fully complied with and performed its
responsibilities as set forth in the Security Measures and Procedures as defined
in Appendix 6.1.
6.4. Service Internet Server. HQS and the Service shall not be responsible
for any interception, access, loss, impairment, delay, corruption, or damage of
any outbound code or data after the data leaves the back end of the Service
Internet server or of any inbound code or data before the data enters the back
end of the Service Internet server unless due to HQS' negligence or a breach of
any provision of this contract or any addendum or amendment thereof.
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7. CONFIDENTIAL INFORMATION
7.1. Confidential and Proprietary Information of AMEDISYS. HQS and the
Service recognize that, due to the nature of this Agreement, HQS and the Service
shall receive or have access to information from AMEDISYS that may be of a
confidential or proprietary nature including, without limitation, financial
records, patient medical and demographic data, and other information used by
AMEDISYS for the operation of AMEDISYS business. HQS and the Service acknowledge
and agree that AMEDISYS is entitled to prevent others from obtaining and
utilizing AMEDISYS confidential and proprietary information. Therefore, except
as otherwise expressly provided for herein, and except as directed by AMEDISYS,
HQS agree to hold AMEDISYS confidential and proprietary information in
confidence and not to disclose it or allow it to be disclosed, directly or
indirectly, to any person or entity, except as may be reasonably necessary for
purposes of this Agreement and then only if the recipient has agreed in writing
to maintain the confidentiality of the information.
7.2. Compiled Information. AMEDISYS agrees that certain information
submitted to HQS will be aggregated into the HQS national database of outcomes
to be used exclusively for benchmarking purposes. Notwithstanding the
obligations in Section 7.1, AMEDISYS agrees that the Service may, by removing,
encoding, encrypting or otherwise concealing AMEDISYS personal identifiers,
AMEDISYS personnel and AMEDISYS patients, de-identify AMEDISYS confidential and
proprietary information, including without limitation, AMEDISYS business and
financial records, patient medical and demographic data, utilization data,
quality assurance data, outcomes data and other data reflecting the experience,
condition and activities of AMEDISYS and AMEDISYS patients. AMEDISYS further
agrees that the Service may incorporate AMEDISYS confidential and proprietary
information in deidentified form into aggregations or compilations of technical,
medical and business information, including but not limited to, statistical
databases, data on payer billing rules, outcomes data, protocols and guidelines,
financial analyses and generalized medical information (the "Compiled
Information"). All de-identified information, once incorporated by the Service
into Compiled Information shall become the property of HQS and shall no longer
be subject to the restrictions of 7.1; and HQS may make changes to, develop,
retain, use, transmit, disclose and dispose of it for any lawful purpose;
provided that in each case of disclosure the Compiled Information shall not
identify AMEDISYS, any personnel or any patient of AMEDISYS by name or other
individual identifier, and the Service shall not disclose any key or other
device to enable coded, encrypted or concealed identifying information to be
disclosed or re-identified unless required by law, In the event that AMEDISYS'
information exceeds 33 1/3 percent of the total information reported, this
section become null and void until such time as the percentage drops to below 33
1/3 percent.
AMEDISYS shall not distribute or sublicense any Compiled Information.
7.3. Confidential and Proprietary Information of HQS. AMEDISYS recognizes
that due to the nature of this Agreement, AMEDISYS shall receive or have access
to information from HQS that is of a confidential and proprietary nature
including, without limitation, price lists, procedure manuals, process diagrams,
software, computer programs, formats and technology for organizing and
presenting data, communication formats and other technology, and Compiled
Information used by the Service for the operation of its business. AMEDISYS
acknowledges and agrees that HQS and the Service are entitled to prevent HQS
respective competitors and others from obtaining and utilizing the confidential
and proprietary information. Therefore, except as directed by HQS and the
Service, AMEDISYS agrees to hold all confidential and proprietary information in
strictest confidence and not to disclose it or allow it to be disclosed,
directly or indirectly, to any person or entity, except as may be reasonably
necessary for purposes of this Agreement and then only if the recipient has
agreed in writing to maintain the confidentiality of the information.
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7.4. Additional Provisions. In the event that a party becomes legally
compelled to disclose any information otherwise subject to confidentiality or
use limitations of this Agreement, such party shall provide the other party with
prompt notice so that such other parties may seek a protective order or other
remedy. The party under a legal obligation to make a disclosure shall disclose
only that information that has been approved for disclosure by that party's
legal counsel, The disclosing party shall cooperate with the nondisclosing party
to obtain a protective order or other assurance that any recipient shall treat
such proprietary information confidentially. The obligations in Sections 7.1 and
7.3 above shall not apply to information which (i) is or becomes generally
available to and known by the public (other than as a result of an unpermitted
disclosure directly or indirectly by the receiving party or its affiliates,
advisors or representatives); (ii) is or becomes available to the receiving
party on a non-confidential basis from a source other than the furnishing party
or its affiliates, advisors or representatives, provided that such source is not
and was not bound by a confidentiality agreement with or other obligation of
secrecy to the furnishing party or any affiliate of which the receiving party
has knowledge at the time of such disclosure; or (iii) has already been or is
hereafter acquired or developed by the receiving party independently and without
violating any confidentiality agreement or other obligation of secrecy. In
keeping information confidential pursuant to this Agreement, each party shall be
obligated to act in a manner no less protective than the care such party uses to
protect its own similar confidential and proprietary information, except that in
no event shall such care be less then reasonable. The provisions in this Section
7 shall survive the termination of this Agreement and shall remain in full force
and effect.
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7.5. HIPAA COMPLIANCE. HQS acknowledges that the nature and practice of
AMEDISYS' business involves the use and maintenance of private and confidential
medical records and other individually-identifiable health information, the
storage, use, maintenance, and accessibility to which is and shall be governed
by the privacy provisions of the Health Insurance Portability and Accountability
Act (hereinafter referred to as "HIPAA"). Neither HQS, it employees, agents,
contractors, or assigns shall document, copy, disseminate, distribute, or
otherwise disclose confidential medical records and/or other
individually-identifiable health care information that each may have contact
with, regardless of the nature, source, or medium of said confidential
information, In the event that HQS and/or its employees, agents, contractors, or
assigns are privy to any such confidential information, HQS covenants, warrants,
and agrees that said party shall at all times maintain the confidentiality of
any and all medical records and/or other individually-identifiable health care
information to which said party may have access, and HQS shall ensure that any
and all persons having any such access at HQS' request or acquiescence, by its
authority, or on its behalf shall strictly abide by the terms of this section,
HQS further agrees to immediately notify AMEDISYS of any violation of this
section or other compromise of private and confidential medical records and/or
other individually-identifiable health information belonging to AMEDISYS or
which HQS becomes aware. HQS also agrees to execute any additional
confidentiality agreement(s) subsequently requested by AMEDISYS as required by
the federal government under the privacy provisions of HIPAA.
8. WARRANTIES; LIMITATIONS
8.1. AMEDISYS acknowledges and agrees that the Service and the services
provided thereunder involve complex computer hardware, software and Internet and
other communications networks that are not necessarily free from defects or able
to operate without interruption and that HQS does not warrant the same. HQS
warrants to AMEDISYS on a continuing basis that the Service shall be available
to AMEDISYS for a minimum of 99% of the scheduled uptime (as defined in HQS
Customer Support Policy), but only in the absence of fault, negligence or breach
of agreement by AMEDISYS or any other third party that causes or contributes to
unavailability or impairment of the Service. THE SOLE AND EXCLUSIVE REMEDY FOR
BREACH OF THIS WARRANTY SHALL BE AS SET FORTH lN SECTION 8.2 BELOW.
NOTWITHSTANDING THE FOREGOING, HQS DOES NOT WARRANT AND SHALL NOT BE RESPONSIBLE
FOR UNAVAILABILITY OF THE SERVICE WHEN SUCH UNAVAILABILITY IS CAUSED BY (I) ACTS
OR OMISSIONS OF ANY THIRD PARTIES, (II) FAILURE OF THIRD PARTY SYSTEMS OR
EQUIPMENT OR (III) OTHER EVENTS BEYOND HQS COMMERCIALLY REASONABLE CONTROL. HQS
DOES NOT WARRANT THAT THE SERVICE OR HQS SOFTWARE ARE FREE FROM ERRORS OR
DEFECTS AND HEREBY DISCLAIM ANY AND ALL LIABILITIES ARISING THEREFROM.
8.2. As its sole and exclusive remedy for breach of warranty under Section
8.1 above and as its sole and exclusive remedy for failure of the Service in
whole or in part to be substantially available to AMEDISYS, AMEDISYS agrees that
if the breach of warranty or failure is caused solely by events within HQS'
commercially reasonable control, HQS shall credit AMEDISYS at the rate of 10% of
AMEDISYS base charge amount for the affected month for every 1 % of Scheduled
Uptime by which the availability of the substantial functionality of the Service
in that month falls below 99% of Scheduled Uptime.
8.3. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, HQS MAKES NO
WARRANTIES, CONDITIONS, GUARANTIES OR REPRESENTATIONS AS TO THE MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE OR OTHER WARRANTIES, CONDITIONS OR
REPRESENTATIONS, WHETHER EXPRESS OR IMPLIED, IN LAW OR IN FACT, ORAL OR IN
WRITING, RELATING TO THE SERVICE OR HQS SOFTWARE. THE SERVICE IS MERELY A
REPOSITORY OF INFORMATION PROVIDED BY OTHERS AND HQS MAKES NO REPRESENTATION OR
WARRANTY AS TO THE TRUTH, ACCURACY, TIMELINESS OR COMPLETENESS OF ANY
INFORMATION CONTAINED IN THE SERVICE AMEDISYS HEREBY ACKNOWLEDGE THAT AMEDISYS
HAVES NOT RELIED UPON ANY WARRANTY, CONDITION, GUARANTY OR REPRESENTATION MADE
BY US.
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8.4. HQS SHALL NOT HAVE ANY LIABILITY TO AMEDISYS OR ANY USERNAME FOR: (i)
ANY DAMAGES CAUSED BY OR ARISING OUT OF THE USE OF OR INABILITY TO USE THE
SERVICE; OR (ii) ANY DAMAGES CAUSED BY OR ARISING OUT OF THE LOSS OR INACCURACY
OF DATA OR PROGRAMS; OR (iii) NEGLIGENCE OR OTHERWISE WITH RESPECT TO ANY
PERFORMANCE BY US PURSUANT TO THIS AGREEMENT. HQS SHALL NOT BE LIABLE IN ANY
CIRCUMSTANCE TO AMEDISYS OR ANY USERNAME FOR ANY INCIDENTAL, SPECIAL OR
CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION, LOST PROFITS) EVEN IF
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8.5. IN NO EVENT SHALL HQS' AGGREGATE LIABILITY TO AMEDISYS OR ANY USERNAME
(INCLUDING LIABILITY FOR ANY BREACH OF WARRANTY, NEGLIGENCE, STRICT Liability IN
TORT, OR OTHERWISE, REGARDLESS OF FORM OF ACTION) EXCEED THE TOTAL CHARGES
ACTUALLY PAID BY AMEDISYS TO HQS FOR THE SPECIFIC USE OF THE SERVICE BY AMEDISYS
IN THE PRECEDING TWELVE (12) MONTHS.
9. INDEMNITY
HQS will, at its own expense, indemnify and defend AMEDISYS in any action
brought against AMEDISYS to the extent that such action is based on a claim that
any aspect of the Service, or confidential and proprietary information of HQS
defined in 7.3, used within the scope of this Agreement, infringes any patents,
copyrights, licenses or trade secrets of any third party, provided that HQS is
immediately notified in writing of any such claim and provided further that HQS
shall have the exclusive right to control such defense. In no event shall
AMEDISYS settle any such claim, lawsuit or proceeding without HQS' prior written
approval. HQS shall pay all costs, damages and attorneys' fees awarded against
AMEDISYS in any such action attributable to an indemnified claim.
HQS assumes no liability to AMEDISYS or to third parties with respect to the
Service and the use of the Service in conjunction with the duties of AMEDISYS to
obtain consents from patients and payers as necessary to permit HQS to perform
the Service and to access and use the data as contemplated by this Agreement.
AMEDISYS shall indemnify HQS against any losses incurred due to claims of
third-party patients and/or payers against HQS involving the use of such data by
HQS, and AMEDISYS shall pay all costs, damages and attorneys' fees awarded
against HQS in any such action attributable to an indemnified claim.
HQS represents that it is the owner of the existing Service and supporting
software and that it has the right to modify the same, to develop the Service,
and to grant to AMEDISYS the use of the Service. AMEDISYS acknowledges the
validity of HQS' exclusive right, title, interest and ownership in and to the
Service and supporting software and any registrations that have issued or may
issue thereon, including the sole right to create derivative works thereof, and
will not at any time do or cause to be done any act or thing contesting or in
any way impairing or tending to impair part of such right, title, interest or
ownership. AMEDISYS also acknowledges the value of HQS' goodwill in the Service
and supporting software, and acknowledges that the goodwill generated by
AMEDISYS through use of the Service and supporting software inures to the sole
benefit of HQS. AMEDISYS acknowledges that AMEDISYS will never acquire ownership
rights in the Service and supporting software itself.
10. MISCELLANEOUS
10.1. Force Majeure. No failure, delay or default in performance of any
obligation under this Agreement shall constitute an event of default or a breach
of representation or warranty under this Agreement to the extent it is caused by
a strike; fire; shortage of materials; legal act of a public authority;
unavoidable casualty; civil disorder; riot; insurrection; vandalism; war;
inclement weather; failure or error of any Internet access provider; failure or
impairment of any lines of transmission belonging to any third party; failure or
impairment of any third-party server, router, other equipment or software
through which Internet transmissions occur; or, other extraordinary cause if
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such cause or condition is beyond the reasonable control and without the
negligence of the party otherwise chargeable, for so long as such cause or
condition continues and for a reasonable period of time thereafter, If a party
intends to rely on the foregoing force majeure protection, it shall timely
notify the other in order to permit the other in its sole discretion to suspend
or curtail its own performance under the Agreement for such time as the failure,
delay or default continues.
10.2. HQS Not Engaged in Delivery of Medical Care. The parties acknowledge
and agree that HQS' services shall in no way grant HQS any control or discretion
over the medical methods, procedures or practices utilized by AMEDISYS or
AMEDISYS clinicians or authorize HQS to interfere with the medical judgment of
such clinicians. Nothing in this Agreement shall be construed to constitute HQS
as engaging in the practice of medicine, delivery of medical care or as being
responsible for any professional liability or other obligation of AMEDISYS or
AMEDISYS clinicians. The parties agree that the exchange of medical information
and patient data contemplated in this Agreement does not constitute the
provision of medical care or give rise to any obligation to provide medical
care.
10.3. Legislative, Regulatory or Administrative Change. In the event there
shall be a development, change in or adoption of: (i) federal or state law, (ii)
Medicare, Medicaid standards or regulations relating to the Healthcare Insurance
Portability and Accountability Act ("HIPAA"), or other HIPAA standards, rules or
procedures, (iii) state standards, rules or procedures, (iv) case law, (v)
regulations or general instructions, (vi) the interpretation of any of the
foregoing, or (vii) any third party reimbursement system, any of which appear to
either party to be reasonably likely to materially and adversely affect the
manner in which either party may perform or be compensated for its services
under this Agreement or which shall make any portion of this Agreement unlawful,
the parties shall immediately enter into good faith negotiations regarding the
need for and terms of a new service arrangement and basis for compensation for
the services furnished pursuant to this Agreement. Any such new service
arrangement must comply with the relevant development, change, or adoption and
must approximate as closely as possible the economic position of the parties in
performance of this Agreement prior to the change.
10.4. Access to Records. Both during the term of this Agreement and after
termination of this Agreement, the parties shall safeguard all records
maintained by them pursuant to this Agreement for at least such periods as may
be required by law. To the extent required by federal law, each party shall,
upon proper request, allow the United States Department of Health and Human
Services, the Comptroller General of the United States and their duly authorized
representatives (collectively, the ~ access to this Agreement and to all books,
documents, files and records necessary to verify the nature and extent of the
costs of services provided by either party under this Agreement, at any time
during the term of the Agreement and for an additional period of seven (7) years
following the last date services are furnished hereunder. If either party
carries out any of its duties under this Agreement through an agreement between
it and any person or entity, that party shall require that a clause be included
in such agreement to the effect that until the expiration of seven (7) years
after the furnishing of services, the person or entity shall make available upon
request by the Federal Authorities all agreements, books, documents and records
that are necessary to verify the nature and extent of the costs of services
provided under that agreement.
10.5. Assignment. Except as may be herein specifically provided to the
contrary, this Agreement shall inure to the benefit of and be binding upon the
parties hereto and their respective legal representatives, successors and
permitted assigns; provided, however, that neither party may assign this
Agreement without the prior written consent of the other, which consent may not
be unreasonably withheld, AMEDISYS acknowledges and agrees that HQS may
subcontract to third parties performance of some or all of its duties and
responsibilities under this Agreement after submitting, in writing, the name of
such third parties, including information sufficient to judge the quality and
character of such third party's business activities.
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10.6. Governing Law. This Agreement shall be governed by the laws of the
State of Louisiana applicable to agreements to be performed wholly within that
state, Unless agreed otherwise in writing by the parties hereto, the federal and
the state courts in Louisiana, Louisiana shall be the exclusive venue for any
litigation or other court proceeding between the parties that may arise out of,
or be brought in connection with, or by reason of, this Agreement, Each party
hereto hereby expressly agrees to submit to the personal jurisdiction and venue
of such courts.
10.7. Recompensate. In the event of any litigation or controversy between
the parties hereto arising out of or in connection with this Agreement, the
prevailing party in such litigation or controversy shall be entitled to recover
from the other party all reasonable attorneys' fees, expense and suit costs,
including those associated with any appellate proceedings and post-judgment
collection proceedings.
10.8. Waiver. No failure by any party to insist upon the strict performance
of any covenant, agreement, term or condition of this Agreement or to exercise
any right or remedy hereunder shall constitute a waiver. No waiver of any breach
shall affect or alter this Agreement, but each and every covenant, condition,
agreement and term of this Agreement shall continue in full force and effect
with respect to any other existing or subsequent breach.
10.9. Amendment. No amendment of this Agreement shall be effective unless
in writing and executed by a duly authorized representative of each party.
10.10. Entire Agreement. This Agreement, together with any attachments
hereto, constitutes the entire agreement between the parties relating to the
subject matter hereof, and supersedes all prior agreements or understandings,
whether explicit or implicit, which have been entered into before the execution
hereof.
10.11. Notices. Any notice or other communication required or which may be
given hereunder shall be in writing and shall be delivered personally, telexed
or sent by facsimile, receipted on-line email or other electronic medium, or by
United States mail or national overnight courier, postage prepaid, and shall be
deemed given when so delivered personally, when received by facsimile, e-mail or
other electronic medium, when delivered by overnight courier, the next day, or
if mailed, three (3) days after the date of mailing, as follows:
If to HQS: If to the Authorized User:
Healthcare Quality Solutions, Inc. Amedisys, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Chief Financial Officer Attn: Chief Information Officer
Fax: ▇▇▇-▇▇▇-▇▇▇▇ Fax: __________________
Any party may change its address for notice purposes by written notice to
the other party, certified mail return receipt requested and such change shall
be effective upon receipt.
10.12. Invalidity. If any portion of this Agreement is held to be invalid
or unenforceable, such invalidity or unenforceability shall not affect or impair
the validity and enforceability of the remainder of this Agreement. In such
event, all parties agree that the court making such determination shall have the
power to alter or amend such provision so that it shall be enforceable
consistent with the intention of the parties. The parties believe that this
Agreement comports with all relevant laws and regulations. In the event that all
or any portion of this Agreement shall be found to be contrary to any law or
regulation, and as a result is nullified or terminated by force of law, neither
party shall be liable to the other by reason of such nullification or
termination and HQS shall be entitled to receive payment for the fair value of
the services HQS has provided.
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10.13. Independent Contractors. Nothing in this Agreement shall affect the
separate identity of either of the parties. In performing its obligations and
accepting HQS' services under this Agreement, it is mutually understood and
agreed that at all times AMEDISYS and any clinicians who are practicing in
association with AMEDISYS shall be acting and performing as independent parties,
and are not as HQS employees or agents. Nothing contained in this Agreement
shall be construed to create a joint venture, partnership, or like relationship
between the parties, it being specifically agreed that their relationship is and
shall remain that of independent parties to a contractual relationship as set
forth in this Agreement. In no event shall either party be liable for the debts
or obligations of the other party unless incurred due to the negligence of the
other party.
10.14. Third Parties. None of the provisions of this Agreement shall be for
the benefit of or enforceable by any creditors of any of the parties or by any
patient or other third party.
10.15. Counterparts. This Agreement may be executed in any number of
counterparts, with the same effect as if the signatures thereto and hereto were
upon the same instrument, but all of such counterparts taken together shall be
deemed to constitute one and the same instrument.
10.16. Headings and Titles. The headings appearing herein are for
convenience and reference only and shall not be deemed to govern, limit, modify,
or in any manner affect the scope, meaning, or intent of the provisions of this
Agreement.
10.17. No Joint Obligations. The obligations and liabilities of each party
under the terms of this Agreement shall be several, each party being responsible
only for its respective obligations hereunder.
IN WITNESS OF, the parties hereto have executed this Agreement to be effective
as of the date first written above.
HEALTHCARE QUALITY SOLUTIONS, INC. AMEDISYS, INC.
By: /s/ ▇.▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
----------------- ------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: President Title: COO
Date: 2/25/03 Date: 2/26/03
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