Healthcare Quality Solutions, Inc. Information Management and Operations Services Agreement
Exhibit
10.16
Healthcare
Quality Solutions, Inc.
This
Agreement is entered into as of February 24, 2003 (the AEffective
Date@)
by and
between Healthcare Quality Solutions, Inc., (hereinafter AHQS@)
a
Florida corporation with a principal place of business at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇ ▇▇▇▇▇, and Amedisys, Inc., (hereinafter
AAMEDISYS@)
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 AService@).
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 (AAMEDISYS
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
AEquipment@).
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
AHelp
Desk@)
that
shall provide telephone advice and guidance for AMEDISYS, as defined in HQS
support policy (the AHQS
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.
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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
AReviewed@
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
APPS
Advantage Suite@
simultaneously.
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.
3.2.6 Changes.
Prevent AMEDISYS employees from changing the Outcomes Assessment Information
Set
(AOASIS@)
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
4.2. 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.
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4.3. 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.
4.4. 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.
4.5. 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 1-3%
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.
4.6. 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
5.2. 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 (ANotice
of
Termination@)
at least
ninety (90) days before expiration of the then current term.
5.3. 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:
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(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;
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(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
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(d)
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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.
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5.4. Termination
by Agreement.
We may
mutually agree in writing to terminate this Agreement at any time.
5.5. 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
6.2. 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.
6.3. 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.
6.4. 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.
6.5. 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
7.2. 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.
7.3. 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 ACompiled
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.
7.4. 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.
7.5. 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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7.6. 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
8.2. 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 IN
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.
8.3. 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.
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8.4. 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.
8.5. 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.
8.6. 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.
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10. MISCELLANEOUS
10.2. 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 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.
10.3. 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.
10.4. 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 (AHIPAA@),
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.
10.5. 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.
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10.6. 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.
10.7. 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.
10.8. 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.
10.9. 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.
10.10. Amendment.
No
amendment of this Agreement shall be effective unless in writing and executed
by
a duly authorized representative of each party.
10.11. 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.
10.12. 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:
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If
to HQS:
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If
to the Authorized User:
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Healthcare
Quality Solutions, Inc.
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Amedisys,
Inc.
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▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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Attn:
Chief Financial Officer
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Attn:
Chief Information Officer
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Fax:
▇▇▇-▇▇▇-▇▇▇▇
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Fax:
▇▇▇-▇▇▇-▇▇▇▇
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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.
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10.13. 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.
10.14. 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.
10.15. 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.
10.16. 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.
10.17. 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.
10.18. 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/ ▇▇▇▇▇ ▇▇▇▇▇▇ | |
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|
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||
| Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇ | Name: ▇▇▇▇▇ ▇▇▇▇▇▇ | ||
| Title: President | Title: COO | ||
|
Date:
2/25/03
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Date:
2/26/03
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