24-15 emsCharts Agreement.pdf

ATTACHMENT “A”

emsCharts Service Agreement THIS AGREEMENT (the “Agreement”) effective upon execution, is made and entered into by and between the Township of West Orange(“Customer”) and emsCharts, Inc (“Vendor”), a Pennsylvania corporation. WHEREAS, Vendor has established and operates a proprietary web-based computer patient charting system (“emsCharts”), that allows customers to create, maintain, access, manage and report information related to emergency medical care transport and other medical services; mobile data collection software for laptop and tablet computers (emsCharts Mobile) that allows onsite patient data collection, and other modules associated with emsCharts (emsCharts Modules), together the “emsCharts System”. WHEREAS, Customer desires to utilize these software products to assist in creating, maintaining, accessing, managing and reporting pre-hospital medical and operational information; WHEREAS, Customer has a relationship with the Third-Party Revenue Guard, which will provide payment for part or all of Products in accordance with any agreements between Third Party and Customer. NOW, THEREFORE, Customer and Vendor agree as follows: 1. SERVICES PROVIDED BY VENDOR 1.1 Website. Customer and its authorized users (as defined and limited in Section 3.2 of this Agreement) shall be given access to the emsCharts website at all times except when unavailable due to upgrades or repairs/maintenance. The website shall provide Customer and its authorized users access to a proprietary computerized system for data input, manipulation and standard report generation per Vendor specifications. 1.2 Modifications/Customizations. Customer accepts the emsCharts System with the standard functionality, reports, and queries existing at the time of purchase. If Customer requests custom functions, reports or queries, Vendor will advise Customer if such enhancements are currently being developed or will be placed on a future development list. If at that time Vendor does not plan to develop the enhancements as part of product standard features, Customer and Vendor may agree that Vendor will provide the enhancements for a development fee. No work on a Customer-requested enhancement will be undertaken unless Customer agrees in writing in advance to the scope and estimated cost of the enhancement. All enhancements, including all enhancements requested and paid for by Customer,

ent will be undertaken unless Customer agrees in writing in advance to the scope and estimated cost of the enhancement. All enhancements, including all enhancements requested and paid for by Customer, shall become the property of Vendor and may be incorporated into versions made available to other customers. 1.3. Documentation and Training. Vendor shall supply Customer with user manuals containing specifications and instructions. Vendor shall also provide Customer and its authorized users phone and web-based administrative support and configuration training for Vendor’s products which Customer has purchased. emsCharts Service Agreement, v12.3 Page 1 of 19

1.3.1 On-site training can be provided on a time and expense basis per mutual agreement of Customer and Vendor. 1.4 Customer Support. General phone support is available during Vendor regular business hours. Emergency phone support is available 24 hours per day, 7 days per week, through a designated communication center. 1.5 System Performance and Maintenance. System performance and maintenance shall be subject to the “Service Levels and Maintenance Guidelines” set forth in Attachment A. 1.6 State Reporting. Vendor shall provide a means of collecting and transmitting Customer’s pre-hospital data to any state regulatory body or designee in compliance with reasonable state regulations and requirements. 2. CUSTOMER OBLIGATIONS 2.1 Hardware and Software. For each workstation from which Customer desires access to emsCharts, Customer shall provide and install at its own expense hardware and software mecting the specifications set forth in the User Manual. 2.2. Internet Access. Customer shall be responsible for obtaining and paying for physical connections of the computers to the Internet. 2.3 Upgrades. Customer shall be responsible to purchase and/or install any upgrades to hardware or software necessary to access future versions of the emsCharts System including but not limited to updated Operating Systems, Web Browsers, and adequate CPU, RAM, and Hard Drive space. Vendor agrees to provide Customer with at least six (6) months notice of any changes that may require modifications to Customer’s hardware or software. 2.4 Customer Representative. Customer shall designate a representative of Customer (“Customer Representative”) to communicate with Vendor’s project manager to facilitate the performance of this Agreement. 3. LICENSE AND RESTRICTIONS ON USE 3.1 Grant of License. Upon receipt of applicable Service Fees by Third Party and subject to the terms of this Agreement, Vendor grants to Customer a non-exclusive, non- transferable, limited license to access and use emsCharts only in the following manner: (a) by Customer and its authorized users remotely accessing the emsCharts website; (b) for bona fide purposes relating to the input, manipulation and reporting of patient, other clinical and operational data created and modified by Customer and its authorized users, and for no other purposes; and (c) during the Term. 3.2 Authorized Users. emsCharts

porting of patient, other clinical and operational data created and modified by Customer and its authorized users, and for no other purposes; and (c) during the Term. 3.2 Authorized Users. emsCharts Service Agreement, v12.3 Page 2 of 19

3.2.1 Vendor shall give administrative rights to the Customer Representative or other Customer designee to establish user passwords for persons and entities Customer authorizes to input and/or access its data (“authorized users”). Customer shall have exclusive control over the designation of authorized users. Customer and its authorized users are responsible for maintaining the confidentiality of all passwords. 3.2.2 Customer is responsible to assure that its authorized users comply with the limitations of use set forth in Sections 3.2, 4.1, 4.2 and 4.3 of this Agreement and to enter into any confidentiality agreement(s) with its authorized users that may be required by the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), the Health Information Technology for Economic and Clinical Health Act, Title XIII of the American Recovery and Reinvestment Act of 2009 (the "HITECH Act"), or other federal or state law. 3.2.3 In no event shall Customer or any authorized user knowingly allow access to emsCharts by any unauthorized user or by any person or entity who/that makes, markets, distributes or has any ownership or other economic interest in any service or product that would compete with the service(s) and product(s) provided under the terms of this Agreement, except with written prior approval from Vendor. 4, DATA 4.1 Ownership of Data. All data entered by Customer shall be considered the property of Customer and shall be kept confidential by Vendor. 4.2 Access to Data. Only Customer and its authorized users may access Customer data. Vendor shall not be responsible for the unauthorized, illegal, or improper dissemination or use of data by Customer or its authorized users. 4.3 Protected Health Information. It is recognized by the parties that data entered by Customer and its authorized users will include “Protected Health Information” as that term is defined in HIPAA regulations at 45 CFR § 164.501. Vendor agrees to comply with applicable provisions of HIPAA as more fully set forth in the attached Business Associate Agreement. 4.3.1 Vendor represents that its software, database, servers and communication protocols and procedures, when properly utilized in accordance with this Agreement and emsCharts’ User Manual, meet the security standards established by HIPAA for the protection of Protected Health Information. 4.4 Transfer and Removal

ly utilized in accordance with this Agreement and emsCharts’ User Manual, meet the security standards established by HIPAA for the protection of Protected Health Information. 4.4 Transfer and Removal of Data. Upon termination of this Agreement by either party for any reason, or at any time requested by Customer in writing during the Term of this Agreement, Vendor shall transfer all data to Customer within thirty (30) days in a mutually agreed format. If Customer and Vendor cannot agree upon a format within thirty (30) days, Vendor shall have the right to transfer or store Customer’s data in a generally accepted format such as XML. After termination and transfer of data to Customer, or at any other time requested emsCharts Service Agreement, v12.3 Page 3 of 19

by Customer, Vendor shall remove any and all Customer data from its servers unless such removal would violate a court order, law, regulation or other legal prohibition. 4.5 License to Data. Vendor will have a world-wide license to use Customer data entered into the emsCharts System on a royalty-free, perpetual use, and transferable license from Customer to Vendor. The transferability of the license’ will be limited to any parent or affiliated entity to Vendor that has common significant ownership. Significant for purposes of this section will be defined to be 50% plus one share ownership. 4.6 HIPAA Compliance. Vendor’s license to use data will be on a HIPAA de- identified basis as determined and regulations change time to time as to protected healthcare information and privacy. 5. FEES 5.1 Monthly Access Fees. Customer agrees to pay the fees set forth in the attached emsCharts Price Quote (herein referred to as Attachment C) which are indicated to be invoiced to Customer. Customer agrees to make full payment within 30 days of the date of invoice and pay reasonable interest on any balance not paid within 30 days, except when the balance is subject to reasonable challenge by Customer made in good faith. Customer will not be responsible for fees indicated on Attachment C which are billed to the Third Party. 5.2 Other Charges/Costs. Customer is responsible for and shall pay all Internet connectivity and service charges and all other costs associated with obtaining and maintaining the required hardware and software required to access the emsCharts System. In addition, Vendor may charge Customer on a monthly basis increased costs associated with HIPAA costs associated with regulatory compliance as to protected healthcare information and security that is otherwise excluded from fees or pricing of fees in Attachment C. These costs will be allocated and amortized over all Vendor charged ePCR charts completed for all its customers. 6. Vendor’s PROTECTED PROPERTY 6.1 No Transfer of Rights. All title and applicable common law and statutory rights in and to emsCharts, emsCharts Mobile, and emsCharts Modules including, but not limited to, rights in confidential and trade secret material, Screen Shots, Screen Layouts, business logic, source code, object code, user manuals, specifications, trademarks, service marks, logos, patents and copyrights, if any, and all

d trade secret material, Screen Shots, Screen Layouts, business logic, source code, object code, user manuals, specifications, trademarks, service marks, logos, patents and copyrights, if any, and all derivative works therein shall, as between Customer and Vendor, be and remain the property of Vendor, and Customer will have no right, title or interest in any such property (“Vendor’s Protected Property”). 6.2 Forbidden Acts. Customer agrees not to copy, distribute, sell, reproduce, alter, enhance, modify, and reverse engineer or use for any purpose other than the legitimate purposes authorized by this Agreement, any Vendor Protected Property. Customer also agrees not to develop comparable or competitive products. emsCharts Service Agreement, v12.3 Page 4 of 19

6.3 Acts Allowed by Licensee. Notwithstanding the above, in the exercise of the rights and license granted hereunder, Customer may print or download management reports, patient care reports, and forms from emsCharts, provided that Customer keeps intact all copyright and other proprietary notices. 6.4 Acknowledgement of Rights, Customer acknowledges that Vendor’s property rights in and to emsCharts, emsCharts Mobile, and emsCharts Modules are valuable and unique and that such property rights are protected. Customer also acknowledges that it will preserve and protect the confidentiality of these products. In protecting the confidentiality of the emsCharts System, customer shall, at a minimum, exercise the same degree of care and take the same actions that Customer exercises and takes with regard to the preservation and protection of its own confidential information and proprietary rights, but not less than a reasonable degree of care. 7. TERM AND TERMINATION 7.1 Term. This Agreement shall be considered effective as of the date first written above (the “Effective Date’) and shall continue in effect until terminated pursuant to the terms of this Agreement. 7.2 Termination Without Cause. At any time after the Effective Date, Customer shall have the right to terminate this Agreement for any reason or no reason upon thirty (30) days written notice to Vendor and Vendor shall have the right to terminate for any reason or no reason upon one hundred eighty (180) days written notice to Customer. 73° Termination For Cause. Either party may terminate this Agreement upon thirty (30) days written notice if the other party is in default of any material term of this Agreement. A party shall be in default of any material term if it has failed to comply with such term for at least thirty (30) days after receipt of a written description of the failure by the other party. 7.4 Termination of Product. At any time after the Effective Date, Vendor shall have the right to terminate its involvement with or discontinue marketing and/or maintaining the emsCharts System. Under such circumstances, Vendor will use its best efforts to give Customer not less than one hundred eighty (180) days prior written notice of termination of this Agreement and to either find alternate means of providing the same or similar services to Customer or to provide any source code necessary for Customer