1390 ADPI13q6
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PURCHASING DEPARTMENT
TRANSMITTAL MEMORANDUM (�: /� J y�' //
To: City Cie 4
RE: ADPI dba: Intermedix Contract
The item(s) noted below is/are attached and forwarded to your office for the following action(s):
F Development Order
❑ Final Plat (original mylars)
F Letter of Credit
❑ Maintenance Bond
❑ Ordinance
❑ Performance Bond
❑ Resolution
F
Once completed, please:
❑ Return original
❑ Return copy
0 Mayor's signature
❑ Recording
Rendering
Safe keeping (Vault��A
❑ Payment Bond
F City Manager Signature
E City Clerk Signature
Special Instructions: �
For executed signatures on both parties. ��� �TY�
Ple ise if you have any questions regarding the above. Thank you
CW I f
From Date
TADept—formsWity Clerk Transmittal Memo - 2009.doc
Please revise and return
ASAP. Thanks.
Pat �,/Z / l
DOCUMENT APPROVAL
Contract/Agreement Name: ADPI Advance Data Processing Inc., dba:
Intermedix
Approval:
- Z� °��
Da (e
a
Date
y torney Date
Finance Ilrector
U
M-1877—
WS RM x
Item No.
CITY COMMISSION MEMORANDUM i 1 -075.B
MAY 9, 2010 AGENDA
To: Honorable Mayor and Members of the City Commission
PREPARED BY: F. William Smith, Purchasing Manage
SUBMITTED BY: Tom George, Interim City Manager ((,Y
SUBJECT: Award of Contract for Ambulance Billing and Related Services
SYNOPSIS:
"Od Approval of a "Piggyback" contract with the firm of Advanced Data Processing, Inc.(dba:
Of f Intermedix) to obtain ambulance billing and related services for the City is hereby requested.
FISCAL/STAFFING STATEMENT:
Funding for this effort is provided by and based upon fees collected from private insurers,
Medicare, Medicaid, other governmental programs, individual patients and their responsible
parties.
BACKGROUND:
The Contractor is to provide complete medical billing and accounts receivable management
services for the City as related to rescue ambulance billing and related professional services.
LEGAL REVIEW:
Contract documents have been prepared and provided by the City Attorney.
RECOMMENDATION:
It is Staff s recommendation that the City Commission approve the "piggyback" contract with
Advanced Data Processing, Inc.(dba: Intermedix) for the procurement of rescue ambulance billing
and related professional services.
SUGGESTED MOTION:
"I move to award the "piggyback" contract with Advanced Data Processing, Inc.(dba:
Intermedix) for the procurement of rescue ambulance billing and related professional services."
5q- /I
ff-8
City Of Sanford
Agreement With Advanced Data Processing, Inc.
cue Ambulance Billing And Related Services (Piaavback
( f - 1kj )kA
This Agreement made and entered into thisl day of ApfiF, 2011 by and between
the:
City of Sanford, Florida
City Hall
300 North Park Avenue
Sanford, Florida 32771
a municipal corporation of the State of Florida, holding tax exempt status, hereinafter
referred to as the "City," and:
Advanced Data Processing, Inc. (dba: Intermedix)
6451 North Federal Highway
Suite 1002
Fort Lauderdale, Florida 33308
a Delaware corporation, authorized to do business in the State of Florida, hereinafter
referred to as the "Contractor ".
The City and the Contractor are collectively referred to herein as the "parties ".
Witnesseth:
Whereas, the Contractor has entered an agreement to provide services to the City
of Lake Mary, Florida pursuant to an Agreement which Agreement continues to be in
effect (hereinafter collectively the "Lake Mary Agreement "); and
Whereas, the City desires to retain the Contractor for the work identified in the
specifications outlined in the Lake Mary Agreement and for the periods set forth in the
Lake Mary Agreement; and
Whereas, the Lake Mary Agreement is attached hereto as Exhibit "A" which is
incorporated herein by this reference thereto; provided, however, that the terms and
conditions of this Agreement shall prevail over the terms and conditions of the Lake Mary
Agreement in the event of conflict; and
Whereas, the City desires to employ the Contractor for the performance to support
the activities, programs, and projects of the City upon the terms and conditions hereinafter
set forth and in the Lake Mary Agreement, and the Contractor is desirous of performing
and providing such services upon said terms and conditions; and
Page 1
Whereas, the Contractor hereby warrants and represents to the City that it is
competent and otherwise able to provide professional and high quality services to the City;
Now, Therefore, in consideration of the mutual covenants and agreements
hereinafter contained and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, it is agreed by and between the parties
hereto as follows:
Section 1: Extent Of Agreement/Integration /Amendment.
(a). This Agreement, together with the exhibit, constitutes the entire integrated
Agreement between the City and the Contractor and supersedes all prior written or oral
understandings in connection therewith. This Agreement, and all the terms and provisions
contained herein including, without limitation, the exhibit, constitute the full and complete
agreement between the parties hereto and supersede and controls over any and all prior
agreements, understandings, representations, correspondence and statements regardless
of whether written or oral.
(b). This Agreement may only be amended, supplemented, or modified by a formal
written amendment.
(c). Any alterations, amendments, deletions, or waivers of the provisions of this
Agreement shall be valid only when expressed in writing and duly signed by the parties.
Section 2: No General City Obligation.
(a). In no event shall any obligation of the City under this Agreement be or constitute a
general obligation or indebtedness of the City, a pledge of the ad valorem taxing power of
the City or a general obligation or indebtedness of the City within the meaning of the
Constitution of the State of Florida or any other applicable laws, but shall be payable solely
from legally available revenues and funds.
(b). The Contractor shall not have the right to compel the exercise of the ad valorem
taxing power of the City.
Section 3: General Provisions.
(a). Each party hereto represents to the other that it has undertaken all necessary
actions to execute this Agreement and that it has the legal authority to enter into this
Agreement, and to undertake all obligations imposed on it. The persons executing this
Agreement for the Contractor certify that they are authorized to bind the Contractor fully to
the terms of this Agreement.
(b). This Agreement is for the services as described in this Agreement and the Lake
Mary Agreement and are to be accomplished in accordance with the controlling provisions
of law and as directed by the City to include all labor and materials that may be required.
Page 2
(c). The Contractor acknowledges that the City may retain other contractors to provide
the same types of services for City projects. The City reserves the right to select which
contractor shall provide services for City projects.
(d). The Contractor acknowledges that the City has retained, or may retain, other
contractors and the coordination between said contractors and the Contractor may be
necessary from time -to -time for the successful completion of each Work Order. The
Contractor agrees to provide such coordination as necessary.
(e). The Contractor agrees to provide and ensure coordination between goods /services
providers.
(f). Time is of the essence of the lawful performance of the duties and obligations
contained in this Agreement to include, but not be limited to, each Work Order. The parties
covenant and agree that they shall diligently and expeditiously pursue their respective
obligations set forth in this Agreement and each Work Order.
(g). The Contractor shall maintain an adequate and competent staff and professionally
qualified persons throughout the performance of this Agreement to ensure acceptable and
timely completion of each Work Order.
(h). Requirements for signing and sealing plans, reports and documents prepared by the
Contractor shall be governed by the laws and regulations of Seminole County, the City of
Sanford and State and Federal regulatory agencies.
(i). No claim for services furnished by the Contractor not specifically provided for herein
shall be honored by the City.
Section 4: Commencement/implementation Schedule Of Agreement.
(a). The Contractor shall commence the provision of services as described in this
Agreement immediately upon execution of this Agreement and a Work Order thereunder.
(b). The Contractor and the City agree to make every effort to adhere to the schedules
established for the various Work Orders as described in each Work Order. However, if the
Contractor is delayed at any time in the provision of services by any act or omission of the
City, or of any employee of the City, or by any other contractor employed by the City, or by
changes ordered by the City, or by strikes, lock outs, fire, unusual delay in transportation,
unavoidable casualties, terrorist activities or any other causes of force majeure not
resulting from the inactions or actions of the Contractor and beyond the Contractor `s
control which would not reasonably be expected to occur in connection with or during
performance or provision of the services, or by delay authorized by the City pending a
decision, or by any cause which the City shall decide to justify the delay, the time of
completion shall be extended for such reasonable time as the City may decide in its sole
and absolute discretion. It is further expressly understood and agreed that the Contractor
Page 3
shall not be entitled to any damages or compensation, of any type or nature, or be
reimbursed for any losses on account of any delay or delays resulting from any of the
aforesaid causes or any other cause whatsoever.
Section 5: Length Of Agreement.
(a). The term of this Agreement is coextensive with the term of the Lake Mary
Agreement and is terminable in accordance with its terms and conditions.
(b). The Contractor's services shall begin upon written notification to proceed by the City
as set forth in a Work Order.
(c). The Contractor's services shall be on a Work Order basis and may include matters
such as serving as an expert witness.
Section 6: Description Of Services.
(a). The contractor agrees to provide the services as outlined and described in this
Agreement all of which are to be provided to the City in accordance with the controlling
provisions of law as more specifically outlined in Exhibit "A" and Work Orders issued
hereunder.
(b). The Contractor shall diligently and in a professional and timely manner perform and
provide the services outlined herein or as included in each subsequently entered Work
Order. Unless modified in writing by the parties hereto, the duties of the Contractor shall
not be construed to exceed the provision of the services pertaining to this Agreement.
(c). The City and the Contractor agree that there may be certain additional services
required to be performed by the Contractor during the performance of the Work Orders that
can not be defined sufficiently at the time of execution of this Agreement. Such services
shall be authorized in writing as a Change Order. The Work Orders may contain addititonal
instructions or provide specifications upon certain aspects of this Agreement pertinent to
the work to be undertaken. Such supplemental instructions or provisions shall not be
construed as a modification of this Agreement.
Section 7: Notices.
(a). Whenever either party desires to give notice unto the other, it must be given by
written notice, sent by registered United States mail, with return receipt requested,
addressed to the party for whom it is intended, at the place last specified, and the place for
giving of notice shall remain such until it shall have been changed by written notice in
compliance with the provisions of this Section.
(b). For the present, the parties designate the following as the representative places for
giving of notice, to -wit:
Page 4
(1). For the City:
City Manager
City of Sanford
City Hall
300 North Park Avenue
Sanford, Florida 32771
(1) A. With Copy To:
Purchasing Manager
City of Sanford
P.O. Box 1788
Sanford, FL 32772
(2). For the Contractor:
Advanced Data Processing, Inc.
6451 North Federal Highway
Suite 1002
Fort Lauderdale, Florida 33308
(c). Written notice requirements of this Agreement shall be strictly construed and such
requirements are a condition precedent to pursuing any rights or remedies hereunder. The
Contractor agrees not to claim any waiver by City of such notice requirements based upon
City having actual knowledge, implied, verbal or constructive notice, lack of prejudice, or
any other grounds as a substitute for the failure of the Contractor to comply with the
express written notice requirements herein. Computer notification (e -mails and message
boards) shall not constitute proper written notice under the terms of the Agreement.
Section 8: Work Orders.
(a). The provision of services to be performed under this Agreement may commence
immediately upon the execution of this Agreement or a Work Order as directed and
determined by the City. Services to be provided by the Contractor to the City shall be
negotiated between the Contractor and the City. Each Work Order shall reference this
Agreement by title and date, include a detailed description of quantities, services, and a
completion schedule, and will be provided on the Contractor's letterhead. Services
described in said Work Order will commence upon the issuance of a City Notice -to-
Proceed.
(b). If the services required to be performed by a Work Order is clearly defined, the
Work Order shall be issued on a "Fixed Fee" basis. The Contractor shall perform all
services required by the Work Order but in no event shall the Contractor be paid more than
the negotiated Fixed Fee amount stated therein.
Page 5
(c). The Contractor and the City agree to make every effort to adhere to the schedule
established for the various Work Orders described in the Work Order.
(d). If the services are not clearly defined, the Work Order may be issued on a "Time
Basis Method" and contain a Not -to- Exceed amount. If a Not -to- Exceed amount is
provided, the Contractor shall perform all work required by the Work Order; but in no event
shall the Contractor be paid more than the Not -to- Exceed amount specified in the
applicable Work Order.
(e). For Work Orders issued on a "Fixed Fee Basis," the Contractor may invoice the
amount due based on the percentage of total Work Order services actually performed and
completed; but in no event shall the invoice amount exceed a percentage of the Fixed Fee
amount equal to a percentage of the total services actually completed.
(f). For Work Orders issued on a "Time Basis Method" with a Not -to- Exceed amount,
the Contractor may invoice the amount due for actual work hours performed; but in no
event shall the invoice amount exceed a percentage of the Not -to- Exceed amount equal to
a percentage of the total services actually completed.
(g). Each Work Order issued on a "Fixed Fee Basis" or "Time Basis Method" with a Not -
to- Exceed amount shall be treated separately for retainage purposes. If the City
determines that work is substantially complete and the amount retained, if any, is
considered to be in excess, the City may, at its sole and absolute discretion, release the
retainage or any portion thereof.
(h). For Work Orders issued on a "Time Basis Method" with a Limitation of Funds
amount, the Contractor may invoice the amount due for services actually performed and
completed. The City shall pay the Contractor one hundred percent (100 %) of the approved
amount on Work Orders issued on a "Time Basis Method" with a Limitation of Funds
amount and the Contractor shall accomplish all work and services for said sum.
(i). Work Orders may also be issued in accordance with any other terms and conditions
agreeable to the parties and consistent with the terms and conditions of the Lake Mary
Agreement.
Section 9: Change Orders.
(a). The City may revise the description of services set forth in any particular Work
Order.
(b). Revisions to any Work Order shall be authorized in writing by the City as a Change
Order. Each Change Order shall include a schedule of completion for the services
authorized. Change Orders shall identify this Agreement and the appropriate Work Order
number. The Change Orders may contain additional instructions or provisions specific
upon certain aspects of this Agreement pertinent to the services to be provided. Such
supplemental instructions or provisions shall not be construed as a modification of this
Page 6
Agreement. An agreement between the parties on and execution of any Change Order
shall constitute a final settlement and a full accord and satisfaction of all matters relating to
the change of work and /or services and to the impact of the change on unchanged goods
and /or work including, but not limited to, all direct and indirect costs of whatever nature
and all adjustments to the Contractor's schedule.
(c). If instructed by the City, the Contractor shall change or revise work that has been
performed, and if such work is not required as a result of error, omission or negligence of
the Contractor, the Contractor may be entitled to additional compensation. The Contractor
must submit for City approval a revised proposal with a revised fee quotation. Additional
compensation, if any, shall be agreed upon before commencement of any such additional
work and shall be incorporated into the work by Change Order to the Work Order.
Section 10: Compensation.
(a). Compensation to the Contractor for the services performed on each Work Order
shall be as set forth the Work Order /Change Order or as set forth in the Lake Mary
Agreement which enumerates rates and charges of the Contractor.
(b). The City shall not pay for reimbursable items such as gas, tolls, mileage, meals, etc.
and other items not directly attritbutable to items produced for each Work Order.
(c). Work performed by the Contractor without written approval by the City's designated
representative shall not be compensated. Any work performed by the Contractor without
approval by the City is performed at the Contractor's own election.
(d). In the event the City fails to provide compensation under the terms and conditions of
this Agreement, the Contractor shall notify the City's designated representative in order
that the City may take remedial action.
Section 11: Invoice Process.
(a). Payments shall be made by the City to the Contractor when requested as work
progresses for services furnished, but not more than once monthly. Each Work Order shall
be invoiced separately. The Contractor shall render to the City, at the close of each
calendar month, an itemized invoice properly dated, describing all services rendered, the
cost of the services, the name and address of the Contractor, Work Order Number,
Contract Number and all other information required by this Agreement.
(b). Invoices which are in an acceptable form to the City and without disputable items will
be processed for payment within thirty (30) days of receipt by the City.
(c). The Contractor will be notified of any disputable items contained in invoices
submitted by the Contractor within fifteen (15) days of receipt by the City with an
explanation of the deficiencies.
Page 7
(d). The City and the Contractor will make every effort to resolve all disputable items
contained in the Contractor's invoices.
(e). Each invoice shall reference this Agreement, the appropriate Work Order and
Change Order if applicable, the billing period, and include the Project Status Report for the
period being billed.
(f). The Florida Prompt Payment Act shall apply when applicable.
(g). Invoices are to be forwarded directly to:
Finance Director
City Hall
City of Sanford
300 North Park Avenue
Sanford, Florida 32771
Section 12: Severability /Construction.
(a). If any term, provision or condition contained in this Agreement shall, to any extent,
be held invalid or unenforceable, the remainder of this Agreement, or the application of
such term, provision or condition to persons or circumstances other than those in respect
of which it is invalid or unenforceable, shall not be affected thereby, and each term,
provision, and condition of this Agreement shall be valid and enforceable to the fullest
extent permitted by law when consistent with equity and the public interest.
(b). All provisions of this Agreement shall be read and applied in pari materia with all
other provisions hereof.
(c). Violation of this Agreement by the Contractor is recognized by the parties to
constitute irreparable harm to the City.
(d). Venue for any lawsuit arising under this Agreement shall be in the Circuit Court in
and for Seminole County, Florida, with regard to State actions, and in the United States
District Court for the Middle District of Florida (Orlando) with regard to Federal actions.
Section 13: Indemnity /Compliance With Law.
(a). To the fullest extent permitted by law, the Contractor shall indemnify, hold harmless,
and defend the City, its agents, servants, officers, officials, and employees, or any of them,
from and against any and all claims, damages, losses, and expenses including, but not
limited to, attorneys fees and other legal costs such as those for paralegal, investigative,
and legal support services, and the actual costs incurred for expert witness testimony
arising out of or resulting from the performance or provision of services required under this
Agreement, provided that same is caused in whole or part by the error, omission, negligent
act, failure to act, malfeasance, misfeasance, conduct, or misconduct of the Contractor, its
Page 8
agents, servants, officers, officials, employees, or subcontractors. The City does not waive
its right to assert consquential damages against the Contractor.
(b). In accordance with Section 725.06, Florida Statutes, adequate consideration has
been provided to the Contractor for this obligation, the receipt and sufficiency of which is
hereby specifically acknowledged.
(c). Nothing herein shall be deemed to affect the rights, privileges, and immunities of the
City as set forth in Section 768.28, Florida Statutes.
(d). In claims against any person or entity indemnified under this Section by an
employee of the Contractor or its agents or subcontractors, anyone directly or indirectly
employed by them or anyone for whose acts they may be liable, the indemnification
obligation under this Section shall not be limited by a limitation on amount or type of
damages, compensation, or benefits payable by or for the Contractor or its agents or
subcontractors, under workers compensation acts, disability benefits acts, or other
employee benefit acts.
(e). The execution of this Agreement by the Contractor shall obligate the Contractor to
comply with the indemnification provision in this Agreement; provided, however, that the
Contractor shall also comply with the provisions of this Agreement relating to insurance
coverages.
(f). The Contractor shall adhere to and comply with all pertinent provisions of controlling
Federal and State laws, rules, regulations, codes and ordinances including, but not limited
to, the statutory and constitutional provisions of the law of Florida.
Section 14: Counterparts.
This Agreement may be executed in any number of counterparts, each of which shall be
deemed an original, but all of which, taken together, shall constitute one and the same
document.
In Witness Whereof, the parties hereto have made and executed this Agreement
on the respective dates under each signature with the City acting through its City
Commission and the Contractor signing by and through its duly authorized corporate officer
having the full and complete authority to execute same.
Attest: Advanced Data Processing, Inc.
Cooke
>ting Corporate Officer
f�
By:
Doug Shamon
Pres*dent/Director
�pri� l �, 2011
Date
Page 9
Attest.
Janet Dougherty, Ci Clerk
For use and reliance of the
Sanford City Commission only.
Approved as to form and legality.
)i
4EVA
City Of Sanford
Jeff Triplett
Date
Page 10
r City of .fake Mary
Th -e. Deyavrinent
91 WALLACE COURT • LAKE MARY, FLORIDA 32746
P �hE REST`"
December 21, 2009
Mr. Daryl Hartung
Advance Data Processing, Inc. (ADPI- Intermedix)
500 NW 165 St Suite 102
Miami FL 33169
Dear Mr. Hartung:
J . a . //
V pICE MA� ��
.L
s
FLORIDA
Please find enclosed the signed original Agreement between the City of Lake Mary, Florida, and Advanced
Data Processing, Inc., for rescue ambulance billing and related professional services.
After you have signed your portion, please forward us a copy of the fully executed Agreement to the above
address.
We look forward to continuing our business relationship.
Sincerely,
7
Craig . Haun
Fire Chief
CH:mb
Enclosure: Original Agreement between the City of Lake Mary, Florida, and Advanced Data Processing, Inc.
FIRE ADMINISTRATION (407) 585-1480 • FAX (407) 585
AGREEMENT BETWEEN
CITY OF LAKE MARY, FLORIDA
AND
ADVANCED DATA PROCESSING, INC. (dba ADPI- INTERMEDIX)
FOR RESCUE AMBULANCE BILLING AND RELATED PROFESSIONAL SERVICES
THIS AGREEMENT ( "AGREEMENT ") is made and entered into this day of J'AA)- 200t /O
by and between CITY OF LAKE MARY, a political subdivision of the State of Florida, with
principal offices located at 235 Rinehart Road, Lake Mary, Florida 32746 ( "CITY ") and
Advanced Data Processing, Inc. (dba ADPI- Intermedix), a Delaware Corporation with principal
offices located at 6451 North Federal Highway, Suite 1002, Fort Lauderdale, Florida 33308
( "CONTRACTOR ").
RECITALS
WHEREAS, CITY provides emergency medical services, including ambulance transport
( "EMS"), for residents and visitors in its jurisdiction, and charges for such services; and
WHEREAS, CONTRACTOR provides billing, collection and related consulting services
and equipment ( "Contractor Services ") for municipalities and other providers of EMS; and
WHEREAS, the parties hereto now wish to enter into an agreement, pursuant to which
CONTRACTOR will render Contractor Services as hereinafter provided;
AGREEMENT
NOW THEREFORE, the parties hereto agree as follows:
1. ENGAGEMENT OF CONTRACTOR. During the term of this Agreement, except for
accounts referred to a collection agency as provided herein, CONTRACTOR shall be
exclusively responsible for the billing and collection of all charges and fees resulting from the
delivery of EMS by CITY, including but not limited to all charges and fees to private insurers,
Medicare, Medicaid, other governmental programs, individual patients and their responsible
parties (collectively, "Payors ").
2. SCOPE OF SERVICES. CONTRACTOR shall perform and carry out Contractor Services
as specifically described in "EXHIBIT A — Scope of Services ", which is attached hereto and
incorporated herein by this reference. CITY reserves the right to request changes in the Scope
of Services within CONTRACTOR's capabilities, which changes shall be implemented upon
mutual written agreement of the parties specifying such changes and any change in
compensation attributable thereto.
3. TERM. This AGREEMENT shall be effective for a one -year period, commencing January
1, 2010 through December 31, 2010, unless terminated as provided in Section 12 below. This
AGREEMENT shall renew automatically for four (4) additional one (1) year periods at the end of
the initial term and each subsequent renewal term unless terminated as provided in Section 12
PAGE 'I
below. All terms and conditions hereof shall remain in full force and effect during any renewal
term unless this Agreement is amended in writing.
4. COMPENSATION AND METHOD OF PAYMENT.
4.01. The CONTRACTOR shall be paid by CITY a monthly amount representing fees for
CONTRACTOR's Services computed as follows:
(a) Seven and twenty -five one hundredths percent (7.25 %) of all Net Collections for EMS
provided by CITY. Net Collections are defined as gross collections less refunds issued and less
Medicaid collections, plus
(b) Thirteen dollars ($13.00) per processed Medicaid beneficiary account, whether or not
such account is ultimately paid by Medicaid, plus
(c) Eighty -eight dollars ($88.00) per month for mailing HIPAA - compliant Notice of
Privacy Practices to patients, as more specifically described in the Scope of Services (Exhibit
A), plus
(d) By written notice of CITY to CONTRACTOR of its intent to exercise this option, two
and thirty one hundredths percent (2.30 %) of all Net Collections for use of CONTRACTOR
provided field data capturing and reporting system consisting of two (2) Pen -based Panasonic
Toughbook Tablet units, Field Automation Software, Administrative Reporting System, includes
training, support and zero (0) spare Pen -based Tablet unit (referred heretofore as "TripTix ").
Contractor reserves the right to increase these fees upon thirty (30) days written notice to CITY
if postage is increased by the United States Postal Service, but only in an amount necessary to
cover additional postage costs. Such increase shall not require agreement or consent by CITY.
4.02. CONTRACTOR shall submit the monthly invoices for fees for Contractor Services to
City of Lake Mary Fire Department, 911 Wallace Court, Lake Mary, Florida 32746, ATTN: EMS
Chief. CITY shall issue a check for the amount invoiced, less any disputed amounts, within thirty
(30) days of receipt of such invoice. In the event CITY disputes any part of the invoiced
amounts, such dispute shall be raised in writing to CONTRACTOR within such thirty (30) day
period or the invoice shall conclusively be deemed to be accurate and correct. CONTRACTOR
shall respond to any such notice of dispute within thirty (30) days of receipt thereof. Any
overdue amounts which are not the subject of a good faith notice of dispute shall accrue interest
at the rate of twelve percent (12 %) per annum.
4.03. If the Contractor Services being provided under this Agreement include
CONTRACTOR collecting on behalf of CITY the charges and fees owed by third parties (e.g.
insurers, Medicare, Medicaid, and other governmental programs, individual patients and their
responsible parties) with respect to the delivery of EMS by CITY, then all amounts so collected
by CONTRACTOR shall be deposited into a lockbox established by CITY. CITY agrees that it
will be solely responsible for the cost of any and all lock -box and/or remote deposit services.
CITY, should it elect to participate in any credit card acceptance program, agrees to assume
and be responsible for all costs associated with such program. All other costs incurred by
CONTRACTOR in the performance of Contractor Services as specified herein (including, but
not limited to postage, materials, communications and phone costs and other operating costs)
shall be assumed by CONTRACTOR.
PAGE 2
5. SYSTEM ACCESS AND SUPPORT.
5.01 Access to IMX Billing System. CONTRACTOR's access to the hosted IMX
billing system shall be subject to and in accordance with the terms of "EXHIBIT B - Web Hosting
Agreement ".
5.02 Customer Support and Training. Customer support and training will be
provided subject to and in accordance with the terms of "EXHIBIT A — Scope of Services ".
6. INDEPENDENT CONTRACTORS. CONTRACTOR is an independent contractor of CITY
and not an employee or agent of CITY with the following exception:
To the extent necessary to fulfill its billing and collection efforts under this
AGREEMENT, CONTRACTOR is authorized to sign in an administrative
capacity for CITY the following types of standard forms and correspondence
only: probate filings; letters to patients or their representatives verifying that an
account is paid in full; forms verifying the tax - exempt status of CITY; and
insurance filings and related forms. The CONTRACTOR has no authority to sign
any document that imposes any additional liability on CITY.
CONTRACTOR shall retain full control over the employment, direction, compensation and
discharge of all persons assisting in the performance of Contractor Services. CONTRACTOR
shall be fully responsible for all matters relating to payment of its employees, including
compliance with Social Security, withholding tax and all other laws and regulations governing
such matters. CONTRACTOR shall be responsible for its own acts and those of its agents and
employees during the term of this AGREEMENT.
7. INDEMNIFICATION. CONTRACTOR shall indemnify and hold CITY harmless from any
and all claims, damages, losses and expenses, including but not limited to reasonable attorney
fees, arising out of third party claims, but only if and to the extent caused directly and
proximately by the willful misconduct or the negligent acts or omissions of CONTRACTOR or its
employees, agents, representatives, consultants, or its subcontractors with respect to the
performance of the Contractor Services under this Agreement.
8. LIMITATION ON LIABILITY. Notwithstanding anything contained in this agreement to the
contrary, (i) in no event shall CONTRACTOR be liable to CITY for any special, indirect,
incidental, punitive or consequential damages (including lost profits) even if advised of the
possibility of such damages, and (ii) CONTRACTOR's total cumulative liability will be limited to
the sum of the fees and compensation actually received by CONTRACTOR pursuant to this
agreement during the twelve (12) months immediately preceding the event giving rise to the
liability. The foregoing limitations apply to all liabilities and damages in any way arising out of
this agreement, or CONTRACTOR's performance or nonperformance thereunder, whether
based on breach of contract, warranty, tort, product liability, strict liability, or any other theory of
liability. In connection with any purchase, licensing, or sale of products, contractor disclaims all
express and implied warranties, including, but not limited to, the implied warranties of title,
merchantability and fitness for a particular purpose, This section 8 shall survive the expiration
or termination of this agreement.
9. INSURANCE. CONTRACTOR shall procure and maintain for the duration of the
AGREEMENT, the following insurance coverage:
PAGE 3
1) Workers' Compensation Insurance in compliance with the applicable state and
federal laws
2) General Liability insurance in an amount no less than $1,000,000 per
occurrence.
3) Coverage for business interruption, destruction of data processing equipment
and media, liabilities affecting accounts receivable, and valuable documents in an amount no
less than $100,000 aggregate;
4) Liability coverage for all vehicles whether owned, hired or used in the amount of
$500,000; and
For all coverages: each insurance policy required by this clause shall be endorsed to state that
coverage shall not be suspended, voided, canceled by either party, reduced in coverage or in
limits except after thirty (30) days prior written notice by certified mail, return receipt requested,
has been given to CITY.
Contractor shall furnish CITY with certificates of insurance and with original endorsements
effecting coverage required by this clause. The certificates and endorsements for each
insurance policy are to be signed by a person authorized by that insurer to bind coverage on its
behalf. All certificates and endorsements are to be received and approved by CITY before work
commences. CITY reserves the right to require complete, certified copies of all required
insurance policies at any time.
10. CONFIDENTIALITY AND NON - SOLICITATION.
10.01 Agreement Content. The terms and conditions of this AGREEMENT are
confidential and neither party shall release any of the terms hereof to any third party without the
prior written consent of the other party, except to the extent necessary to comply with law, the
valid order of a court of competent jurisdiction, or the valid order or requirement of a
governmental agency. Notwithstanding the foregoing, either party may, without the prior written
consent of the other party, disclose the existence of a contractual relationship between the
parties.
10.02 Intellectual Property. To the extent allowed by law CITY agrees that the
equipment, computer hardware and software, billing and collection processing, and other
related systems and equipment are the property and trade secrets of CONTRACTOR, and that
CITY will not release any information regarding such trade secrets to any third party without the
prior written consent of CONTRACTOR. CITY further agrees that, in connection with the use of
certain data entry devices, CITY may gain access to the intellectual property of third parties.
CITY understands and agrees that it may be required to enter into agreements with respect to
such intellectual property in order to use such equipment. CITY agrees to enter into such
arrangements at CONTRACTOR's request.
10.03 Non - Solicitation. For the term of this Agreement and for one (1) year after its
termination, CITY shall not employ or hire any employee or former employee of CONTRACTOR
who, pursuant to this Agreement, has had any contact with employees or representatives of
CITY or has worked on CITY's accounts, without the prior written consent of CONTRACTOR.
PAGE 4
11. ACCESS TO DOCUMENTS. The parties agree that during and after the term of this
Agreement, each party shall have access to any and all documents, records, disks, and
electronic data produced in the performance of this AGREEMENT and in the possession of the
other party, as necessary to defend such party in litigation or to respond to investigations
initiated by third parties, or for other legitimate business reasons.
12. ATTACHMENTS. The following named attachments are made an integral part of this
AGREEMENT:
(a) Scope of Services (Exhibit A attached hereto and made a part hereof);
(b) Web Hosting Agreement (Exhibit B attached hereto and made a part hereof);
(c) Business Associate Agreement (Exhibit C attached hereto and made a part hereof)
(d) Addendum to Service Agreement Triptix Program (Exhibit D attached hereto and
made a part hereof).
13. TERMINATION.
13.01 Events Triggering Termination. This Agreement shall be subject to termination
under the following conditions.
(a) Either CITY or CONTRACTOR may terminate this Agreement without cause upon six
(6) months prior written notice to the other party.
(b) If CONTRACTOR fails to materially perform any obligation required hereunder, and
such default continues for thirty (30) calendar days after written notice from CITY specifying the
nature and extent of the failure to materially perform such obligation, this Agreement shall
terminate upon the expiration of said thirty (30) calendar day period.
(c) If CITY fails to materially perform any obligation required hereunder, and such default
continues for thirty (30) calendar days after written notice from CONTRACTOR specifying the
nature and extent of the failure to materially perform such obligation, this Agreement shall
terminate upon the expiration of said thirty (30) calendar day period.
(d) Unless otherwise agreed upon by the parties, if CITY or CONTRACTOR shall apply
for or consent to the appointment of a petition in bankruptcy, make a general assignment for the
benefit of creditors, file a petition or answer seeking reorganization or arrangement with
creditors, or take advantage of any insolvency, or if any order, judgment, or decree shall be
entered by any court of competent jurisdiction on the application of a creditor or otherwise
adjudicating either Party bankrupt or approving a petition seeking reorganization of either Party
or appointment of a receiver, trustee or liquidator of either Party or all or a substantial part of its
assets, this Agreement shall terminate automatically and immediately.
13.02 Rights Upon Termination. If this Agreement is terminated for any reason,
including, without limitation, the breach of this Agreement by any Party, CONTRACTOR shall be
entitled to recover when due and payable hereunder, all amounts owed to CONTRACTOR
hereunder accrued but unpaid as of the date of termination. Following termination of this
Agreement, for a period of ninety (90) days, CONTRACTOR, at its sole discretion and upon
written notice to CITY of its election to do so, may continue its billing and collection efforts as to
those accounts referred to CONTRACTOR prior to the effective date of termination, subject to
PAGE 5
L
the terms and conditions of this Agreement, for the fee set forth in Section 4.01 above. At the
end of the foregoing period, CONTRACTOR shall return all records to CITY in the format
requested by CITY, including CD, DVD, external hard drive, etc. and shall cooperate in the
transition of the billing and collection services; provided, however, that CONTRACTOR may
keep any copies of records in accordance with applicable law. For cases of default, the
CONTRACTOR shall be given opportunity to cure the default within the allotted period following
such written notice. In the event the acts constituting default are a violation of law,
CONTRACTOR shall be subject to immediate termination of Agreement. The expiration or
termination of this Agreement, for whatever reason, will not discharge or relieve either party
from any obligation which accrued prior to such expiration or termination, will not relieve either
party that has breached this Agreement from liability for damages resulting from such breach
and will not destroy or diminish the binding force and effect of any of the provisions of this
Agreement that expressly, or by reasonable implication, come into or continue in effect on or
after expiration or termination hereof.
14. UNCONTROLLABLE FORCES. Except for CITY's obligation to pay, when due, the fees
and compensation owed to CONTRACTOR, neither CITY nor CONTRACTOR shall be
considered to be in default of this AGREEMENT if delays in or failure of performance shall be
due to Uncontrollable Forces, the effect of which, by the exercise of reasonable diligence, the
non - performing party could not avoid. The term "Uncontrollable Forces" shall mean any event
which results in the prevention or delay of performance by a party of its obligations under this
AGREEMENT and which is beyond the reasonable control of the non - performing party. It
includes, but is not limited to fire, flood, earthquakes, storms, lightning, epidemic, war, riot, civil
disturbance, sabotage, terrorism and governmental actions.
Neither party shall, however, be excused from performance if non - performance is due to forces
that are preventable, removable, or remediable nor which the non - performing party could have,
with the exercise of reasonable diligence, prevented, removed, or remedied with reasonable
dispatch. The non - performing party shall, within a reasonable time of being prevented or
delayed from performance by an uncontrollable force, give written notice to the other party
describing the circumstances and uncontrollable forces preventing continued performance of
the obligations of this AGREEMENT.
15. JURISDICTION AND VENUE: This Agreement shall be governed by the laws of the State
of Florida. Any legal action by either party against the other concerning this Agreement shall be
filed in Miami Dade County, Florida, which shall be deemed proper jurisdiction and venue for the
action.
16. REPRESENTATIONS. CITY and CONTRACTOR agree that this AGREEMENT
constitutes a legal, valid and binding obligation for each party, enforceable against such party in
accordance with its terms (subject always to applicable bankruptcy, insolvency, receivership
and other similar laws relating to or affecting the enforcement of creditor's rights generally and
to general principles of equity). Further, CONTRACTOR and CITY warrant and represent to
each other:
that each (i) is duly formed and organized and validly existing under the laws of the
jurisdiction of its formation, (ii) is properly qualified to do business and is in good
standing under the laws of each jurisdiction in which it does business, (iii) has all
necessary corporate or similar power and authority to execute and deliver this
Addendum and to consummate the transaction contemplated hereby; and
PAGE 6
that this AGREEMENT, its execution and the fulfillment and compliance with the terms
and conditions hereof, do not violate or conflict with any provision of or result in any
breach of or default under any (i) organizational documents of each party, (ii) law or
judicial, award, or similar decree, or (iii) agreement, to which CITY or CONTRACTOR,
for CONTRACTOR's representations and warranties, or CITY, for CITY's
representations and warranties, are bound.
17. EXPORT LAWS. CITY shall comply with all then current export laws and regulations of
the U.S. Government and the government of the country in which CITY receives delivery of the
Licensed Software which pertain to the Licensed Software.
18. ASSIGNMENT OF AGREEMENT. Except to a parent, subsidiary, or affiliate,
CONTRACTOR shall not sell, transfer, assign this AGREEMENT, or of its right, title or interest
therein, without the express prior written consent of CITY.
19. NOTICES. Any notice given or required to be given under this Agreement shall be in
writing and shall be addressed to the parties hereto at the addresses set out below, Any such
notices shall be deemed to have been given (i) if mailed, then three (3) days following the date
such notice is placed in the United States mail in a postage paid wrapper, registered or certified
with return receipt requested, addressed to the appropriate party at the address set forth above
for such Party, or to the last address provided in writing to the other party by the addressee, or
(ii) if by any other method, when actually received. Either party may change its address for the
purpose of this Agreement by notice in writing to the other party in accordance herewith.
To CITY:
eh aF L 14mr N�13✓i
ATTN: CITY Manager
P a. a T y 41
4t+aeF rc
To the CONTRACTOR:
Brad Williams
Vice President, Finance
Advanced Data Processing, Inc.
6451 North Federal Highway, Suite 1002
Fort Lauderdale, Florida 33308
20. SEVERABILITY. Should any part, term or provision of this AGREEMENT be by the courts
decided to be illegal or in conflict with any applicable law, the validity of the remaining portions
or provisions shall not be affected thereby.
21. ENTIRE AGREEMENT. This AGREEMENT contains the entire agreement between the
parties. CONTRACTOR represents that in entering into this AGREEMENT it has not relied on
any previous oral and/or implied representations, inducements or understandings of any kind or
nature. This Agreement may be amended only in writing signed by the parties.
PAGE 7
22. ATTORNEYS FEES. Should either party institute any action or procedure to enforce this
Agreement or any provision hereof, or for damages by reason of any alleged breach of this
Agreement or of any provision hereof, or for a declaration of rights hereunder (including, without
limitation, arbitration), the prevailing party in any such action or proceeding shall be entitled to
receive from the other party all costs and expenses, including without limitation reasonable
attorneys' fees, incurred by the prevailing party in connection with such action or proceeding.
IN WITNESS OF THE FOREGOING, CITY has caused this AGREEMENT to be signed by
its CITY Administrator, attested by CITY Clerk with the corporate seal of r i, I ,
and CONTRACTOR has executed this Agreement effective as of the date set forth above.
:r �
-CITY Clerk
Approved as to form and legal sufficiency:
By: �-e ' —
CITY Attorney
APPFtO i-D I Y
CITY COMMIS IMUN
1-1j, `
(CORPORATE SEAL)
STATE OF FLORIDA
BROWARD COUNTY
M
Date: �,3 /
CONTRACTOR
Advanced Data Processing, Inc.
A Del e C oration
M
DOUG SHAIVION,
PRESIDENT
BEFORE ME, an officer duly authorized by law to administer oaths and take
acknowledgments, personally appeared Doug Shamon, as President of Advanced Data
Processing, Inc., a Delaware corporation, and acknowledged execution of the foregoing
AGREEMENT for the use and purposes mentioned in it and that the instrument is the act and
deed of the Contractor.
IN WITNESS OF THE FOREGOING I have set my hand and official seal at
in the State and County aforesaid on 7 � L, /i (4 r � , 20W ta
Notary Public, Stat f Florida
My Com
m ssi expires:
Gtlw -0,3
E,0E0j* y Notary Public State of Florida
`h Cindy R Gardner 0, Nty Commission DD879720 Expires Og112f2013
PAGE 8
Exhibit A
Scope of Services
Base Services and Obligations:
A. CONTRACTOR shall provide complete medical billing and accounts receivable
management services for CITY as described below. CONTRACTOR shall:
1. Prepare and submit all initial claims and bills for CITY promptly upon receipt
thereof, and prepare and submit all secondary claims and bills promptly after identification of the
need to submit a secondary claim.
2. Assist CITY in identifying all necessary documentation in order to process and
bill the accounts.
3. Direct all payments to a lockbox or bank account designated by CITY, to which
CITY alone will have signature authority.
4. Pursue appeals of denials, partial denials and rejections when deemed
appropriate by CONTRACTOR.
5. Respond to and follow up with all Payors and respond to all messages or
inquiries from a Payor.
6. Provide appropriate storage and data back -up for all records pertaining to CITY's
bills and collections hereunder, accessible to CITY at all reasonable times.
7. Maintain records of all services performed and all financial transactions.
8. Meet, as needed, with representatives of CITY to discuss results, problems and
recommendations.
9. Provide any CITY - designated collection agency with the data necessary for
collection services to be performed when an account is referred to such agency.
10. Ensure that all required documentation and agreements with Payors (e.g.
Medicare, Medicaid, Champus, etc.) are filed and maintained and that CITY is kept apprised of
important changes to industry regulations.
11. Provide reasonably necessary training periodically, as requested by CITY, to CITY's
emergency medical personnel regarding the gathering of the necessary information and proper
completion of run tickets.
12. Utilize up -to -date knowledge and information with regard to coding requirements and
standards, to compliance with applicable federal, state and local regulations.
13. Reconcile the number of transports processed with those received
14. Provide a designated liaison for patient and other Payor concerns.
15. Provide a toll free telephone number for patients and other Payors to be answered
as designated by CITY.
16. Facilitate proper security of confidential information and proper shredding of all
disposed materials containing such information.
17. Establish arrangements with hospitals to obtain /verify patient insurance and contact
information.
18. Respond to any CITY or Payor inquiry or questions promptly
19. Maintain appropriate accounting procedures for reconciling all deposits, receivables,
billings, patient accounts, adjustments and refunds.
20. Provide access to CITY for all requested information in order for CITY to perform
appropriate and periodic audits. Reasonable notice will be given to CONTRACTOR for any
planned audit and will be conducted during normal business hours of CONTRACTOR
21. Provide timely comprehensive reports in a mutually agreed upon format = facilitating
all required aspects of monitoring, evaluating, auditing and managing the services provided.
22. Process refund requests and provide CITY with documentation substantiating each
refund requested.
23. CONTRACTOR acknowledges its obligations as CITY's Business Associate under the
requirements of the Identity Theft Red Flag Rules promulgated under the Fair and Accurate Credit
Transactions Act of 2003 ("Red Flag Rules ") found in C.F.R. Part 681. CONTRACTOR will ensure that
its activities for CITY are conducted in accordance with reasonable policies and procedures designed to
detect, prevent and mitigate the risk of identity theft. CONTRACTOR will use reasonable efforts to
ensure that any agent or third party who performs services on CONTRACTOR's behalf in connection
with this Agreement, including subcontractors, also agree to implement reasonable policies and
procedures designed to detect, prevent and mitigate the risk of identity theft. CONTRACTOR will alert
CITY of any red flag incident which we become aware, and the steps that are being taken to mitigate any
potential security compromise.
B. Specific Scope Compliance:
1. Assign billing patient numbers providing cross - reference to CITY'S assigned
transport numbers.
2. Maintain responsibility for obtaining missing or incomplete insurance information.
CITY.
3. Provide accurate coding of medical claims based on information provided by
4. Make recommendations for fee schedule changes and regularly advise CITYon
changes in statutes and industry regulations.
5. Negotiate and arrange modified payment schedules for individuals unable to pay
full amount when billed.
6. Retain all accounts for a minimum of twelve (12) months (unless otherwise
specified by mutual agreement) and after (12) months turn over accounts for which no collection
has been made (unless insurance payment is pending) to an agency designated by CITY.
Notwithstanding the foregoing, no account shall be turned over for collection without CITY's
consent.
7. Provide for facilities to permit real -time read only electronic look -up access by
CITY to CONTRACTOR'S system to obtain patient data and billing information.
8. Maintain records in an electronic format that is readily accessible by CITY
personnel and that meets all federal and state requirements for maintaining patient medical
records.
9. Maintain daily deposit control sheets and original documentation
10. Create, implement and comply with a Compliance Plan consistent with the
Compliance Program Guidance for Third Party Medical Billing Companies 63 FR 70138;
(December 18, 1998) promulgated by the Office of Inspector General of the Department of
Health and Human Services (OIG).
11. Provide TripTix based reporting extract of data required by state or local
regulatory authorities connectivity /interface in a format reasonably required by such authorities.
12. Provide HIPAA Privacy Notice to transported, billed patients as an insert into the
initial billing notice mailed to these patients.
C. Optional Services:
The CONTRACTOR will provide the following specific optional services by mutual agreement
with CITY:
1. Collection Efforts
a. Provide alternative collection arrangements when full payment is not
available. Contractor will have the right, on CITY's behalf, at its sole discretion, to
enter into alternative collection arrangement with respect to any patient encounter if:
(a) the total payments are for at least 80 percent of the amount of the bill and the
length of the payments do not exceed 18 months.
(b) An insurance company offers at least 70% of the total amount billed with a
stipulation that the insured not be billed for the balance; or
( c ) Contractor is able to make arrangements for the payment of patient account
that provide a substantially similar economic benefit to CITY, as Contractor
determines in its sole and complete discretion
b. Scope of collection efforts. If reasonable efforts have been made to collect an
account an such efforts have not been successful, Contractor shall have the right to
terminate collection efforts and close the account as an unpaid debt. As used herein
"reasonable efforts" shall be defined to mean at least 120 days of active collection
efforts in the ordinary course of business. In addition, Contractor may terminate or
suspend collection efforts in the event that CITY has supplied Contractor with
materially incomplete or inaccurate billing and /or patient information. Absent
contrary instructions from CITY with respect to any patient encounter, the accounts
that Contractor has deemed to be uncollectible may be forwarded to a third -party
collection agency for further collection effort. Contractor will invoice CITY, and
CITY agrees to pay, 20% of collected amounts on accounts sent by Contractor
to the third party collection agency.
D. CITY's Responsibilities and Obligations:
1. From each patient CITY who receives EMS from CITY ( "Patient "), CITY shall use
its best efforts to obtain and forward the following information ( "Information ") to CONTRACTOR:
• The Patient's full name and date of birth
• The mailing address (including Zip Code) and telephone number of the
Patient or other party responsible for payment ( "Guarantor ")
• The Patient's social security number
• The name and address of the Patient's health insurance carrier, name of
policyholder or primary covered party, and any applicable group and ID
numbers
• The auto insurance carrier's address and/or agent's name and phone
number if an automobile is involved
• The employer's name, address and Workers Compensation Insurance
information if the incident Is work related
• The Patient's Medicare or Medicaid HIC numbers if applicable
• The Patient's or other responsible party's signed payment authorization
and release of medical authorization form or other documentation
sufficient to comply with applicable signature requirements
• The call times, transporting unit, and crew members with their license
level, i.e. EMT -B, EMT -I, or EMT -P
• Odometer readings such that loaded miles may be calculated.
• Any other information that CONTRACTOR may reasonably require to bill
the Patient or other Payor.
2. CITY warrants that all information provided to CONTRACTOR shall be accurate
and complete, to the best of its knowledge. CONTRACTOR shall have no obligation to verify
the accuracy of such information, and CITY shall be solely responsible for such accuracy. CITY
agrees to indemnify CONTRACTOR, its agents, and employees from any and all liabilities and
costs, including reasonable attorneys' fees, resulting from (a) any inaccurate or misleading
information provided to CONTRACTOR that results in the actual or alleged submission of a
false or fraudulent claim or (b) any other actual or alleged violation of local, state or federal laws,
including but not limited laws applicable to Medicare, Medicaid or any other public or private
Payor or enforcement agency,
3. CITY will provide CONTRACTOR with necessary documents required by third
parties to allow for the electronic filing of claims by CONTRACTOR on CITY's behalf.
4. CITY will provide CONTRACTOR with its approved billing policies and
procedures, including fee schedules and collection protocols. CITY will be responsible for
engaging any third party collection service for uncollectible accounts after CONTRACTOR has
exhausted its collection efforts.
5. CITY will timely process refunds identified by CONTRACTOR for account
overpayments.
6. CITY will provide a Lock Box or bank account address to CONTRACTOR and
will instruct the Lock Box or bank custodian agency to forward all documents to CONTRACTOR
for processing.
7. CITY will provide CONTRACTOR with Daily Bank Balance Reporting capabilities
via the bank's designated web site.
8. CITY will cooperate with CONTRACTOR in all matters to ensure proper
compliance with laws and regulations.
9. CITY will assure that all of its personnel involved in the delivery of EMS hold the
licensure or certification required to perform such services, and are not excluded persons listed
on the OIG exclusion list.
10. CITY agrees that it will forward to Contractor copies of checks, or other payment
documentation requested by Contractor relating to the subject matter of this Agreement, within
10 days of the date of receipt of those payments.
11. CITY agrees to notify CONTRACTOR by sending an email to
support @intermedix.com at least 10 business days prior to the go -live for any upgrades to their
ePCR solution, if such solution electronically interfaces with the CONTRACTOR's billing
platform. An upgrade is defined as a change that impacts the format of current data elements
transmitted or the addition or deletion of data elements that are being captured and transmitted
to CONTRACTOR for billing purposes. If such notification is not provided, the CITY will be
billed for any time incurred by CONTRACTOR at a rate of $100 per hour that results because of
the lack of notification and is required to help ensure the quality of data for processing.
Exhibit B
Web Hosting Agreement
1. License. CONTRACTOR grants to CITY a limited, non - exclusive and non - transferable
license: (i) to access and use the CONTRACTOR'S proprietary IMX billing system software (the
"Software ") in executable code format via Internet connection to CONTRACTOR's hosting
facility solely in support of the billing and collection with respect to the CITY's EMS services;
and (ii) to use any associated end -user documentation provided by CONTRACTOR (the
"Documentation ") in support of CITY's authorized use of the Software. Except as expressly
permitted herein, no express or implied license is granted to CITY to use, receive, reproduce,
copy, market, sell, distribute, license, sublicense, lease, timeshare, or rent the Software or any
component thereof. No modification of, or preparation of derivative works based on the
Software or Documentation is permitted. CITY shall not disassemble, decompile, decrypt or
reverse engineer the Software or in any way attempt to discover or reproduce source code for
the Software, or any portion thereof. CITY shall not develop or license any third party programs,
applications, tools or other products which interface or interact with the Software without the
prior written consent of CONTRACTOR. CITY agrees not to remove the copyright, trade secret
or other proprietary protection legends or notices which appear on or in the Software. The
Software may incorporate software under license from a third party. If the third party requires
CITY's notification of such use through an End User License Agreement ( "EULA "),
CONTRACTOR will provide such notification to CITY. To the extent provided by law, In order to
use the Software, CITY agrees to be bound by all EULA(s) provided at the time of delivery
whether by hardcopy or displayed upon installation or use of the Software. CITY's use of the
Software subsequent to such notice(s) shall constitute CITY's acceptance of the EULA(s).
2. Hosting of Application. CONTRACTOR shall establish and maintain a production version
of the Software for CITY's use, including any necessary physical links to the Internet via an
Internet service provider or through a direct Internet connection. The Software shall reside on a
server or cluster of servers which are physically located at CONTRACTOR's place of business
or at a third -party site that meet or exceed the following service level requirements: (i) 5
megabits connectivity with redundant connections to multiple tier -1 backbone providers (XO
Communications and Time Warner Telecommunications) (ii) Dual Intel Xeon Processors; (iii)
fault tolerant storage; (iv) and 24/7 site and server monitoring. The Software may reside on a
server used for the applications of other CONTRACTOR customers. As of the date of this
Agreement, the Software resides at a cluster of servers that are physically located in highly
secure high -tech data centers in Austin, Texas and Houston, Texas.
3. Application Maintenance. CONTRACTOR shall maintain the Software so that it is
available for access by CITY. CONTRACTOR shall implement commercially reasonable
procedures regarding application management, load balancing, back -up, recovery, file and disk
space utilization management, and data security to ensure that the most recent version of the
Software resides on the server or may be reinstalled without undue delay. The Software shall
be capable of continuous operation 99.9% of the time, other than for interruptions due to service
maintenance and upgrades, system failure, system back -up and recovery and for causes
beyond CONTRACTOR's reasonable control. CONTRACTOR will ensured the availability of
qualified engineers around the clock, ready to intervene should the need arises 365 days per
year and 24 hours a day.
4. Internet Access. CITY shall be responsible for providing its own Internet access, and in no
event shall CITY be provided with direct access (by modem or otherwise) to the Software
server, other than access that is available to third parties generally through the Internet. The
parties acknowledge that, since the Internet is neither owned nor controlled by any one entity,
CONTRACTOR makes no guarantee that any given user will be able to access the Software at
any given time. There are no assurances that access will be available at all times and
uninterrupted, and CONTRACTOR shall not be liable to CITY for its inability to access the
Software.
6. Limitation of Access to Software. CITY's right to access and use the Software will vary
depending upon the scope of the Contractor Services being provided by CONTRACTOR. By
way of example, if CONTRACTOR is responsible for inputting CITY's data, CITY's access to the
Software will not include the ability to input, delete, or otherwise change such data. Moreover,
access to data shall be limited to the employees, representatives and agents of CONTRACTOR
and the authorized personnel of CITY. A complete and signed access form for each of CITY's
personnel authorized to access the Software must be submitted to and approved by
CONTRACTOR.
6. Statistical Reporting. Statistical and financial data reports will be available on the Software
at all times that the Software is available. The format and content of the statistical data will be
established and defined by CONTRACTOR and such reports may be added, modified or
deleted without notice to CITY. Notwithstanding the foregoing, CITY may request that specific,
custom reports be made available to it at an additional charge to be negotiated between
CONTRACTOR and CITY.
7. Acknowledgement with Respect to Reports. With respect to each report generated by the
Software, CITY acknowledges and agrees:
(a) Such report represents a "snapshot" of a moment in time, and, as such, the snapshot may
not be accurate with respect to financial results on the whole.
(b) The underlying data may be subject to correction from time -to -time, which may change the
results of the report or its interpretation.
(c) The data represented in the report constitutes only a limited portion of all data available
regarding CITY's business. Accordingly, any particular report may not accurately represent the
CITY's then - current or future financial condition.
8. Security. CITY acknowledges that it is solely responsible for providing security software,
including without limitation, firewalls and similar applications, to prevent unauthorized access to
its computer systems. CONTRACTOR shall use commercially reasonable efforts to maintain the
security of the Software, but shall not be responsible for the CITY's loss or dissemination of
passwords or other breaches beyond CONTRACTOR's reasonable control.
9. Data protection. CONTRACTOR addresses customer privacy issues very seriously.
CONTRACTOR agrees that it will not use or make available any personally identifiable
information other than administering the client's account and collecting usage statistics in order
to improve CONTRACTOR's products and service specifications. During the term of this
Agreement and after termination or expiration of this Agreement, CONTRACTOR will not in any
way transfer to any third party or use in direct or indirect competition with CITY any information
or data posted by or for the benefit of CITY on CONTRACTOR's website and acknowledges that
all such information is confidential ( "Confidential Information "). Confidential Information
includes, but is not limited to, the terms and conditions of this Agreement, technical information,
price lists, data and business plans. Confidential Information is the exclusive property of the
disclosing party and may be used by the receiving party solely in the performance of its
obligations under this Agreement. CONTRACTOR acknowledges that its handling of
information on behalf of client is or may be subject to federal, state or local laws, rules,
regulation and restrictions regarding the privacy of consumer information. CONTRACTOR
agrees to comply with all of such laws, rules, regulations and restrictions at its sole cost and
expense. This Confidential Information section and all obligations contained therein will survive
any termination or expiration of this Agreement.
10. Service disruption caused by customer actions. Although through there are limitations
on the manipulation of critical server configuration files, server settings, etc., a customer is
allowed, CONTRACTOR shall not be liable for service outages caused by direct customer
actions,
11. Supplemental Indemnification
(a) CITY shall indemnify, hold harmless not to exceed limitations as provided in F.S.
768,28 and, at CONTRACTOR request, defend CONTRACTOR, and its
directors, officers, and employees, from and against any liabilities, claims,
actions, damages, losses, costs and expenses (including court costs and
reasonable fees of attorneys), brought by third parties against CONTRACTOR
arising out of or resulting from CITY's infringement of such third party's (a)
intellectual property rights, or (b) rights as a potential employee of CITY,
including applicants or candidates for employment by CITY.
(b) CONTRACTOR shall indemnify, hold harmless and, at CITY's request and upon
CONTRACTOR's written agreement, defend CITY, and its directors, officers, and
employees, from and against any liabilities, claims, actions, damages, losses,
costs and expenses (including court costs and reasonable fees of attorneys),
brought by third parties against CITY arising out of or resulting from
CONTRACTOR's infringement of such third party's intellectual property rights.
(c) CONTRACTOR's solutions are designed and hosted with the utmost
consideration for data privacy concerns, adhering to federal and state guidelines
and industry best practices, providing audit trails and notifications of all system
transactions. CONTRACTOR maintains adequate professional liability insurance
and will provide CITY with a Certificate of Insurance for such. In no event shall
Licensor or its licensors or suppliers pay for incidental, indirect, special, or
consequential damages, even if they have been advised of or should have
foreseen, the possibility of such damages beyond the values as maintained in the
professional liability insurance.
(d) Both parties shall promptly notify each other in writing. Either party may, at its
sole discretion and expense, participate in the defense of any claim or action and
any negotiations for settlement. No settlement which may adversely affect either
party's rights or obligations shall be made without either party's prior written
approval
Exhibit B
Business Associate Addendum
CONTRACTOR the "Business Associate" and CITY hereby add the following additional
language to the AGREEMENT.
1. CONTRACTOR shall carry out its obligations under this Addendum in compliance with
the privacy regulations pursuant to Public Law 104 -191 of August 21, 1996, known as
the Health Insurance Portability and Accountability Act of 1996, Subtitle F —
Administrative Simplification, Sections 261, et seq., as amended ( "HIPAA "), to protect
the privacy of any personally identifiable protected health information ( "PHI ") that is
collected, processed or learned as a result of the Billing Services provided hereunder. In
conformity therewith, CONTRACTOR agrees that it will:
a. Implement administrative, physical and technical safeguards that reasonably and
appropriately protect the confidentiality, integrity and availability of the electronic
protected health information that it creates, receives, maintains or transmits on behalf of
CITY;
b. Not use or further disclose PHI except as permitted under this Addendum or required by
law;
c. Use appropriate safeguards to prevent use or disclosure of PHI except as permitted by
this Addendum;
d. To mitigate, to the extent practicable, any harmful effect that is known to CONTRACTOR
of a use or disclosure of PHI by CONTRACTOR in violation of this Addendum.
e. Report to CITY any use or disclosure of PHI not provided for by this Addendum of which
CONTRACTOR becomes aware;
f. Ensure that any agents or subcontractors to whom CONTRACTOR provides PHI, or who
have access to PHI, agree to the same restrictions and conditions that apply to
CONTRACTOR with respect to such PHI;
g. Make PHI available to CITY and to the individual who has a right of access as required
under HIPAA within 30 days of the request by CITY regarding the individual;
h. Incorporate any amendments to PHI when notified to do so by CITY;
i. Provide an accounting of all uses or disclosures of PHI made by CONTRACTOR as
required under the HIPAA privacy rule within sixty (60) days;
j. Make their internal practices, books and records relating to the use and disclosure of
PHI available to the Secretary of the Department of Health and Human Services for
purposes of determining CONTRACTOR's and CITY's compliance with HIPAA; and
k. At the termination of the AGREEMENT, return or destroy all PHI received from, or
created or received by CONTRACTOR on behalf of CITY, and if return is not feasible,
the protections of this Addendum will extend to such PHI.
2. The specific uses and disclosures of PHI that may be made by CONTRACTOR on
behalf of CITY include:
a. The preparation of invoices to patients, carriers, insurers and others responsible for
payment or reimbursement of the services provided by CITY to its patients;
b. Preparation of reminder notices and documents pertaining to collections of overdue
accounts;
c. The submission of supporting documentation to carriers, insurers and other payers to
substantiate the health care services provided by CITY to its patients or to appeal
denials of payment for same.
d. Uses required for the proper management of CONTRACTOR as business associate.
e. Other uses or disclosures of PHI as permitted by the HIPAA privacy rule.
3. Notwithstanding any other provisions of this AGREEMENT or Addendum, the
AGREEMENT may be terminated by CITY if CONTRACTOR has violated a term or
provision of this Addendum pertaining to CONTRACTOR's material obligations under
the HIPAA privacy rule, or if CONTRACTOR engages in conduct which would, if
committed by CITY, result in a violation of the HIPAA privacy rule by CITY.
Exhibit C
Addendum to Service Agreement
(Triiptix Program)
This Addendum to the AGREEMENT (the "Addendum ") hereby adds the following
language to the AGREEMENT.
WHEREAS, CONTRACTOR has developed the " Triptix" system running on 'tablet PC's"
to enter medical records and data into and interact with its main billing and medical records
system (the "Product" as more particularly defined herein) that CONTRACTOR is willing to
make available under license to CITY upon the terms herein set forth; and
WHEREAS, CITY has expressed a desire to use the Product; and
WHEREAS, CITY acknowledges that, in connection with the provision of the Product
and the Triptix devices, CONTRACTOR is incurring significant per unit and, in some cases, per
User out of pocket expenses;
NOW, THEREFORE, FOR AND IN CONSIDERATION of the mutual promises and
covenants contained herein and for other good and valuable consideration the adequacy and
sufficiency of which is hereby acknowledged, the parties agree as follows:
ARTICLE I. DEFINITIONS
1.01 Definitions. For all purposes of this Addendum, the following definitions shall apply:
"Confidential Technical Information" shall mean any and all technical information of the
designated Party except:
technical information which at the time of disclosure is in the public domain;
technical information which after disclosure is published or otherwise becomes a
part of the public domain through no fault of the recipient (but only after it is published or
otherwise becomes part of the public domain);
technical information which the recipient can show was in its possession at the
time of disclosure and it was not acquired, directly or indirectly, from the other Party
hereto; or
technical information which was received by the recipient after the time of
disclosure hereunder from a third party who did not acquire it, directly or indirectly, from
the disclosure Party under an obligation of confidence, For the purpose of this definition,
specific technical information disclosed by one Party to the other pursuant to the
provisions of this Addendum shall not be deemed, as to the recipient, to be within any of
the above exceptions merely because it is embraced by more general information within
one of the said exceptions. In addition, any combination of features disclosed by one
Party to the other pursuant to the provisions of this Addendum shall not be deemed, as
to the recipient, to be within any of the above exceptions merely because individual
features of the combination are within any of said exceptions, but only if the combination
itself and its principle of operation are within one of the said exceptions.
"Customizations" shall mean any changes to the Licensed Software requested by CITY
and agreed to by CONTRACTOR for increased or different functionality of the Licensed
Software. "Day" or "Days" shall mean a continuous calendar day.
"Documentation" shall mean any technical or instructional materials for the Licensed
Software that are delivered to CITY by CONTRACTOR.
"Defaulting Party" shall mean either CONTRACTOR or CITY to this Addendum who has
been served with written notice that it is not in compliance with any term to this Addendum.
"Effective Date" shall mean the date on which the Initial Fee is paid or, if no Initial Fee is
required, the date on which the last party to this Addendum executed it.
"First Day of Service" shall mean, with respect to each Product Unit, the first day such
Product Unit is delivered to CITY.
"Initial Period" shall mean, with respect to each Product Unit, the initial three -year period
following the delivery of the Product Unit to CITY.
"Intellectual Property" shall mean all of CONTRACTOR's rights in and to the Product,
including, without limitation, CONTRACTOR's copyrights, trademarks, trade dress, trade
secrets, patents and patent applications (if any), and "know how" and any other proprietary
information developed by CONTRACTOR relevant to the Product.
"Initial Fee" shall mean, with respect to each Product Unit, the Third -Party Intellectual
Property Royalty Payments required in connection with such Product Unit.
"Licensed Software" means the copies of CONTRACTOR's software programs as are
contained in the Product, including any Documentation included therewith. CONTRACTOR
may, at its sole discretion, provide corrections and modifications to the Licensed Software from
time to time.
"Licensed Territory" shall mean the area in which CITY operates its emergency medical
service at the time of entering into this Addendum.
"Material Breach" shall have the meaning given to it in Article 5 of this Addendum.
"Material Non - Monetary Breach" shall have the meaning given to it in Article 5 of this
Addendum.
"Product" shall mean, collectively, each Product Unit (a tablet PC, personal digital
assistant or similar device), the Licensed Software, any Customizations with respect to one or
more of the Product Units delivered to CITY, and any Third -Party Intellectual Property, as
licensed to CITY under the terms and conditions of this Addendum.
"Product Unit" shall mean a single data collection device delivered pursuant to the terms
and conditions of this Addendum containing one or more elements of the Product but shall not
mean any ancillary devices or products provided by persons other than CONTRACTOR.
"Third -Party Interface Devices" shall mean those devices that interface with the Product
to transfer information, including medical monitoring devices for which Third -Party Intellectual
Property Royalty Payments are made.
"Third -Party Intellectual Property Rights" shall mean the intellectual property rights of
any third -party used in connection with the Product.
"Third -Party Intellectual Property Royalty Payments" shall mean the payments to be
made directly by CITY or, indirectly, on CITY's behalf, as consideration for the licensing of any
Third -Party Intellectual Property Rights.
"Updates" shall mean any and all revisions to the Licensed Software, and the
Customizations or any other part of the Product, if any, as shall be delivered by CONTRACTOR
to CITY from time to time.
"Users" shall mean any employees or independent contractors of CITY, all of whom shall
have the right to use the Licensed Software, Customizations and any Documentation pursuant
to the terms and conditions of this Addendum.
ARTICLE Ill. PRICE AND PAYMENT
2.09 Adjustment to Rates of Compensation under the AGREEMENT. The
compensation due and owing CONTRACTOR by CITY shall be increased as described in
Section 4.01(d) of the AGREEMENT during the Term of this Addendum.
2.02 License Fees. In addition to the payments required pursuant to the provisions of
Section 4.01(d) of the AGREEMENT , CITY shall make the payments in connection with Third -
Party Intellectual Property Royalty Payments as further set out on Schedule 2,01 hereto.
In the event that CITY terminates this Addendum within the first 18 months , it shall pay
an early termination fee as set out on Schedule 2.02 hereto
2.03 Payment Terms. All undisputed amounts shall be paid within thirty (30) days of
receipt of a valid invoice,
2.04 Taxes. CITY shall pay all taxes, duties or charges of any kind (including
withholding or value added taxes) imposed by any federal, state, or local governmental entity for
Licensed Software or Products and supporting training and Documentation and related
materials and maintenance provided during the term of this Addendum, excluding only taxes
based solely on CONTRACTOR's income. CITY shall indemnify and hold CONTRACTOR
harmless from all claims and liability arising from CITY'S failure to discharge or pay any and all
such taxes, duties, or charges.
ARTICLE III. PROPRIETARY RIGHTS
3.01 CITY acknowledges that CONTRACTOR and its suppliers, including, without
limitation, the suppliers of licenses of Third -Party Intellectual Property Rights, have, retain and
own all right, title and interest in and to the Licensed Software, the Customizations, the Updates,
any Documentation, and all patent, copyright, trademark and service mark and trade name and
the goodwill associated therewith, trade secret, inventions, technology, ideas, know -how, and all
other intellectual property rights and all other rights pertaining thereto. All such right, title and
interest shall be and remain the sole property of CONTRACTOR. CITY shall not be an owner or
holder of any copies of, or have any interest in the Licensed Software or any Updates,
Customizations, and Documentation but rather, such Licensed Software, Releases and Updates
and Documentation are solely licensed for use pursuant to this Addendum. Neither CITY nor
its Users shall: (i) remove any copyright, patent or other proprietary legends from the Licensed
Software or any Product; (ii) sub - license, lease, rent, assign, transfer or distribute Licensed
Software or any Product to any third party; (iii) alter, modify, copy, enhance or adapt the
Licensed Software or any Product; (iv) attempt to reverse engineer, covert, translate,
decompile, disassemble or merge the Licensed Software or any Product with any other software
or materials; (v) otherwise create or attempt to create any derivative works from this Licensed
Software or any Product, or permit persons who are not Users any access to the Licensed
Software or its operations, to the extent required by law, and any attempt to do any of the above
shall void all warranties given CITY by CONTRACTOR.
ARTICLE IV. DATA ENTRY DEVICES
4.01 Generally. CITY and CONTRACTOR understand and agree that CONTRACTOR may
make available data entry devices (hand -held devices, tablet pc's and /or other data entry
devices for the collection and /or transmission of medical information). CITY understands and
acknowledges that any of the aforementioned data entry devices provided by CONTRACTOR
will be subject to the additional fee described in Section 4.01(b) of this AGREEMENT. Also, in
connection with the potential provision of such devices, CITY agrees:
(a) CITY will be responsible for the loss or damage to such devices. CITY agrees to pay:
(i) the cost of repairs in excess of manufacturer extended warranty of any such device provided
to it or (ii), If the device is irreparable, lost or stolen, for the replacement cost of the device, CITY
is responsible for repair or replacement costs not covered by extended warranty provided by the
CONTRACTOR. CITY agrees that CITY may obtain insurance for such devices provided that
CONTRACTOR is named as a beneficiary under such insurance. CONTRACTOR will use
commercially reasonable efforts to provide CITY with a replacement unit within one business
day following the business day on which the request is made.
(b) CITY may be required to enter into additional agreements with the makers of third -
party devices (monitors, scanners, EKG machines, etc.) with respect to the transmission of
information between the third party device and the data entry device. CITY understands and
agrees that CONTRACTOR will not be able to provide data entry devices unless and until
agreements are entered into with the third -party manufacturers of such third party devices. CITY
understands and agrees that its failure to enter into or reach agreements with such third - parties
(and any and all consequences of such failure) shall not be deemed to be a default of
CONTRACTOR under this AGREEMENT or any other arrangement between CITY and
CONTRACTOR. CITY further understands and agrees that the failure to enter into such
agreements with these third parties may hinder CITY'S use of certain software features that
might otherwise be available to it (for instance, a direct data connection between a third party
device and the data entry device).
(c) CITY may be required to obtain new or different medical or other equipment capable
of communicating with the data entry devices. CITY understands and agrees that such new or
different medical or other equipment must be obtained at CITY's sole cost and expense.
(d) CITY may request CONTRACTOR to support additional medical or other devices.
CITY understands and agrees that the costs of developing an interface may be significant and
may involve the payment of royalties to the third -party manufacturers of the device. CITY further
understands and agrees that CONTRACTOR has no obligation to undertake the development of
interfaces with additional medical or other devices.
ARTICLE V. TERM AND TERMINATION
5.09 Generally. The term of this Addendum shall begin on the Effective Date and shall
continue until the end of the Initial Period of the last Product Unit delivered pursuant to the terms
and provisions of this Addendum ( "Initial Term "). CONTRACTOR's Maintenance and Support
obligations shall continue until the end of the Initial Term at the fees set forth by the
AGREEMENT provided, however, that CITY or CONTRACTOR may terminate this Addendum
pursuant to the terms and provisions of this Addendum.
5.02 Termination. Notwithstanding any other language herein or in the AGREEMENT,
a termination of the Addendum shall not operate to terminate the AGREEMENT, but a
termination of the AGREEMENT shall operate as a termination of this Addendum.
Notwithstanding anything to the contrary herein or in the AGREEMENT, a termination of the
AGREEMENT by CITY_may be deemed to be an elective termination and a default under this
Addendum.
5.03 Termination of the Addendum.
Termination by CITY upon CONTRACTOR Material Breach. CITY may terminate this
Addendum (but not the AGREEMENT) without obligations to pay an early termination payment,
if CONTRACTOR commits a Material Non- Monetary Breach which breach, if capable of being
cured, is not cured within 30 days of a written notice of termination
Termination by CITY without CONTRACTOR Material Breach. CITY may terminate
this Addendum (but not the AGREEMENT) at any time by providing notice to CONTRACTOR,
making payment in full of the required early termination payment disclosed on Schedule 2.01
with respect to EACH Product Unit delivered pursuant to this Addendum and returning all
Product Units to CONTRACTOR.
Termination by CONTRACTOR upon CITY Material Breach. CONTRACTOR may
terminate this Addendum if CITY commits
a Material Monetary Breach CITY fails to pay any undisputed amount due under
this Addendum within 20 days after written notice of such nonpayment or
a Material Non - Monetary Breach, which breach, if capable of being cured, is not
cured within 60 days of a written notice of termination.
5.04 Any termination of the Addendum shall not:
release CITY or CONTRACTOR from any claim of the other accrued hereunder
prior to the effective date of such termination;
release CITY or CONTRACTOR from their obligations under Article VII or
Sections 4.05 and 4.06, respectively, unless otherwise released by the further terms
hereof;
5.05 Upon termination of this Addendum, CONTRACTOR shall remain the sole owner of
the Product and all intellectual property and goodwill associated therewith, and CITY shall
assert no rights thereto.
5.06 Delivery of Materials. Upon termination of this Addendum for any reason, CITY
shall immediately discontinue use of the Product including all Documentation and within ten (10)
days return each of the Product Units and certify in writing to CONTRACTOR that all copies,
extracts or derivatives of any item comprising the Product, including all Documentation, in whole
or in part, in any form, have either been delivered to CONTRACTOR or destroyed in
accordance with CONTRACTOR's instructions. All payments made by CITY to CONTRACTOR
hereunder are non - refundable.
ARTICLE VI. BREACH OF ADDENDUM
6.01 Material Non - Monetary Breaches.
CITY Material Non - Monetary Breach. For purposes of this Addendum, as respects a
breach by a CITY, a "Material Non - Monetary Breach" includes any breach of its or its User's
obligations with respect to Proprietary Rights, Confidentiality, or any material breach of a party's
representations or warranties under this Addendum.
CONTRACTOR Material Non - Monetary Breach. For purposes of this Addendum, as
respects a breach by CONTRACTOR, a "Material Non - Monetary Breach" includes any material
breach of its Maintenance and Support obligations or any material breach of its representations
or warranties under this Addendum.
CONTRACTOR and CITY Material Non - Monetary Breach. For purposes of this
Addendum, as respects a breach by either CONTRACTOR or CITY, it shall be a "Material Non -
Monetary Breach" if such party (i) terminates or suspends its business or operations, (ii)
becomes insolvent, admits in writing its inability to pay its debts as they mature, makes an
assignment for the benefit of creditors, or becomes subject to direct control of a trustee, receiver
or similar authority, or (iii) becomes subject to any bankruptcy or insolvency proceeding under
federal or state statutes which are not rescinded within forty -five (45) days.
6.02 Material Monetary Breaches. For purposes of this Addendum, as respects a
breach by either CONTRACTOR or CITY, it shall be a "Material Monetary Breach" with respect
to such party if:
Such party fails to make any Third -Party Intellectual Property Royalty Payment as
required under any agreement with such third party;
Such party fails to make payments due under the terms of this Addendum or the
AGREEMENT when and as due; or
Such party fails to reimburse the other party for payments made on its behalf for Third -
Party Intellectual Property Royalty Payments.
ARTICLE VII. LICENSE
7.09 License. Commencing on the Effective Date and subject to the terms and
conditions of this Addendum, CONTRACTOR grants CITY a non - exclusive, non - transferable
license, to use the Product in the Licensed Area by the Users. This license does not constitute a
sale of the Product or any portion or piece thereof or of any copies of Licensed Software,
Customizations or Documentation.
7.02 Delivery and Acceptance. CONTRACTOR will deliver to CITY, the Product at
mutually agreeable times, after or simultaneously with the later of date of the execution of this
Addendum or Effective Date, or as otherwise provided.
7.03 No Other Rights. Except to exercise the license of Section 6.01 and its rights
specifically granted under this Addendum, CITY shall have no rights to own, use or otherwise
exercise dominion over the Product. Except as otherwise permitted under this Addendum, CITY
may not rent, lease, loan, sell or otherwise distribute the Product or any derivative works based
upon the Licensed Software in whole or in part.
7.04 Right of Audit. Either party may audit and inspect the other party's physical and
electronic records solely to verify such party's compliance with the terms of this Article Vi. CITY
hereby agrees to the remote electronic survey of the Licensed Software licensed hereunder,
provided CITY is provided ten (10) business day's prior written notice of such survey and
provided further that such audit is conducted in a reasonable manner. In addition, upon written
request from the other party, each party shall provide or obtain physical access to such records
to either the requesting party or an independent auditor chosen by the party for the purposes of
audit. All physical audits of CITY will be conducted at the business premises in which the
Licensed Software is installed or accessed during regular business hours during the term of this
Addendum. Audits will be conducted no more frequently than once annually. All individuals
performing such audits, including independent third party auditors, must be bound by
confidentiality obligations consistent with the Agreement.
7.05 Material Change to Product. If there is any material change in any rules, orders,
laws or regulations governing the manner in which this Product operates or in the data provided
by third parties (such as changes in the manner of operation of global distribution systems or
standards in wireless or non - wireless communications protocols); then upon written notice to
CITY, CONTRACTOR will have the right, retroactive to the date of such material change, to
modify the way in which this Product delivers data in order to comport with any change in law or
regulations or functionality governing the Product. All data used by CONTRACTOR for testing
and development shall be supplied by CITY at its expense to CONTRACTOR promptly upon
request by CONTRACTOR to CITY.
ARTICLE VIII. LIMITED WARRANTY AND DISCLAIMER:
8.09 Software Media Warranty. CONTRACTOR warrants that each Product Unit
delivered to CITY will be free from material defects when delivered. CONTRACTOR's entire
liability and CITY's exclusive remedy under this warranty will be to replace the media on which
such Product was delivered. CONTRACTOR shall have no obligation to replace any defective
media which is not returned to CONTRACTOR within the warranty period or which has failed
because of accident, abuse or misapplication.
8.02 Software Warranty. CONTRACTOR warrants that from the date of the delivery of
a Product Unit identified by CONTRACTOR as being fully functional for production at the site
designated by CONTRACTOR, the Product, if properly used by CITY, shall operate in
conformity with the Documentation for such Product, if any. CONTRACTOR does not warrant
that any Product will meet all of CITY's requirements or that the use of any Product will be
uninterrupted or error free.
8.03 Grant of Standard Warranties Only. NEITHER CONTRACTOR NOR ANY OF
ITS SUPPLIERS MAKE ANY WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR IN ANY
COMMUNICATION WITH CITY WITH RESPECT TO THE PRODUCT OR OTHER ITEMS
DELIVERED PURSUANT TO THIS ADDENDUM THAT IS NOT PART OF THE STANDARD
WARRANTY OFFERED BY CONTRACTOR TO ITS OTHER CUSTOMERS. CONTRACTOR's
sole and exclusive liability, and CITY's sole and exclusive remedy, shall be, at CONTRACTOR's
sole election, to terminate this Addendum, at which time, CITY shall immediately deliver each
Product Unit and any related Documentation to CONTRACTOR; provided, however,
CONTRACTOR may elect, to attempt, through reasonable efforts, to: (a) correct any material
nonconformities discovered within the Warranty Period, (b) replace the nonconforming Product.
The above remedies are available only if CONTRACTOR is promptly notified in writing, within
the warranty period, upon discovery of the nonconformities by CITY and CONTRACTOR's
examination of the Product discloses that such nonconformities exist, and that the Product has
not been (i) altered or modified; (ii) subjected to negligence, or computer or electrical
malfunctions; (iii) used, adjusted, or installed other than in accordance with the instructions
furnished by CONTRACTOR; or (iv) modified for custom development by CONTRACTOR for
CITY as agreed in an Order. ANY REFUND OF FEES PROVIDED HEREUNDER (WHICH
MAY BE UNDERTAKEN AT CONTRACTOR'S SOLE AND COMPLETE DISCRETION) SHALL
BE DEEMED A TERMINATION OF THIS ADDENDUM (AND ANY RELATED MAINTENANCE)
AND SHALL BE CITY'S SOLE AND EXCLUSIVE REMEDY FOR REJECTION OF THE
PRODUCT(S) AND NEITHER PARTY SHALL HAVE ANY FUTURE OBLIGATIONS OR
LIABILITY HEREUNDER WITH RESPECT TO SUCH PRODUCT(S). THIRD PARTY
INTELLECTUAL PROPERTY PAYMENTS SHALL NOT BE REFUNDABLE IN FULL OR IN
PART.
8.04 Information /Disclaimer of Warranties with Respect to Data and Information
Provided by Third parties.
Some information transmittable or accessible through any Product Unit may have been
obtained through sources believed to be reliable (such as various Internet providers, real -time
data provided by GPS systems or medical devices or other third party information sources).
CITY agrees that CONTRACTOR shall not have any liability whatsoever for the accuracy,
completeness, timeliness or correct sequencing of the information, or for any decision made or
action taken by CITY in reliance upon such information or the Product. CITY further agrees that
CONTRACTOR shall have no liability whatsoever for the transmission, non - transmission or
partial transmission of data through third -party data systems and that such transmission shall be
undertaken at CITY's sole risk, cost and expense.
CONTRACTOR and its third party suppliers and CITYs do not warrant that any Product
will meet CITY's requirements or that access to the Product, or the operation of the Product, will
be uninterrupted, error -free, that all errors will be timely corrected by third party information
CITYs, or that the data and /or reports generated by the Product will be accurate in the event
that third party information providers have provided inaccurate information.
8.05 DISCLAIMER. EXCEPT FOR THE EXPRESS LIMITED WARRANTIES SET
FORTH IN THIS ADDENDUM AND THEIR OWN WILLFUL MISCONDUCT, CONTRACTOR
DOES NOT MAKE ANY WARRANTIES EXPRESS, IMPLIED, STATUTORY OR IN ANY
COMMUNICATION WITH CITY WITH RESPECT TO THE LICENSED SOFTWARE, ANY
SERVICES OR ANY PRODUCT, AND CONTRACTOR EXPRESSLY DISCLAIMS ANY
IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE. NO REPRESENTATIVE OF CONTRACTOR SHALL HAVE THE RIGHT TO MAKE
WARRANTIES ON CONTRACTOR'S BEHALF UNLESS THOSE WARRANTIES ARE IN
WRITING AND EXECUTED BY A DULY AUTHORIZED OFFICER OF CONTRACTOR.
EXCEPT WITH RESPECT TO THEIR WILLFUL MISCONDUCT, IN NO EVENT SHALL
EITHER PARTY OR ITS SUPPLIERS HAVE ANY LIABILITY FOR ANY SPECIAL, INDIRECT
OR CONSEQUENTIAL DAMAGES INCLUDING, WITHOUT LIMITATION, DAMAGES FOR
LOST PROFITS, LOSS OF DATA OR COSTS OF PROCUREMENT OF SUBSTITUTE
GOODS, TECHNOLOGY OR SERVICES, ARISING IN ANY WAY OUT OF THIS ADDENDUM
UNDER ANY CAUSE OF ACTION, WHETHER OR NOT CONTRACTOR HAS BEEN ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL CONTRACTOR BE
LIABLE FOR ANY OTHER DAMAGES IN EXCESS OF THE AMOUNTS PAID FOR THE
PRODUCT UNIT THAT GAVE RISE TO SUCH DAMAGE. THESE LIMITATIONS SHALL
APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY
LIMITED REMEDY. THIS SECTION DOES NOT LIMIT LIABILITY FOR BODILY INJURY OF A
PERSON.
Schedule 2.01
Third -Party Intellectual Property Royalty Payments
In addition to the other compensation required under this Addendum, Third -Party
Intellectual Property Payments shall be made as follows:
Licensing /Royalty agreement to be executed between CITY and the manufacturer of
CITY's defibrillating equipment when the manufacturer has cleared the Triptix equipment
for direct interface between their equipment and the CONTRACTOR provided data
devices.
AND NO OTHER
78
Schedule 2.02
Initial Term Early Termination Payments
follows:
The Initial Term Early Termination Payments with respect to each Product Unit are as
Period
Amount
(1) For an Early Termination during the first 18 months from $2,750
the beginning of the Term:
(2) For an Early Termination during the remainder of the $- - - 0 - --
Term: