Agreement with Advanced Data Processing1
c z F s~/2/~~ ~ o t O - 2~ 3 ~'~6
AMENDMENT NO. 2 TO THE PROFESSIONAL SERVICES AGREEMENT
BETWEEN'THE CITY OF MIAMI BEACH, FLORIDA
AND ,
ADVANCED DATA PROCESSING, INC:
D/B/A INTERMEDIX -ADPI, DATED JUNE 17, 2008,
TO
PROVIDE BILLING AND.COLLECTION SERVICES
FOR EMERGENCY MEDICAL SERVICES {EMS) TRANSPORT
This ~~mendment No. 2 to the. above subject Agreement is made and entered into this
/6 day ofi ~d,~TIG>~L3d~ 2010, by and between the CITY OF MIAMI
BEACH, FLORIDA, a municipal corporation having its principal office at 1700 Convention
Center Drive, Miami Beach, Florida, 33139 (hereinafter referred to as City}, and ADVANCED
DATA PROCESSING, INC. D/B/A INTERMEDIX - ADPI, a Delaware Corporation, having its
principaf office at 6451 North Federal Highway,~.Suite 1002, .Fort Lauderdale, Florida, 33308
(hereinafter referred to as Contractor).
WHEREAS, on June 17,- 2008, City and :Contractor entered into an Agreement as.
amended. for Emergency Medical Transport Billing and Collection Services (the "Agreement"); ..-
..and
WHEREAS,Jthe Contractor has developed the "Triptix" system. running on "tablet PCs" 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 the Contractor is willing to make
available under license to the City upon the terms herein set forth;: arid ,
WHEREAS, the City acknowledges that, in connection with the provision of the °Product
and the. Triptix devices, the Contractor is incurring. significant costs per unit and, in some cases,
per User out-of-pocket expenses; and .
WHEREAS,. the City-desires to amend the Agreementao allow for its use of the Product;
NOW, THEREFORE, IN ,CONSIDERATION of the .mutual promises and covenants
hereafter-set forth, the Parties agree to amend the Agreement as follows:
1. The. term. of the Agreement. shall be extended for an initial three {3) year term,
commencing on the last date of execution of this Amendment by the parties hereto. The
Agreement shall automatically renew for a period of one (1) additional three _(3) year term at
the end of the initial term.
2. Section 2 of the Agreement, entitled "Scope of Services", is deleted in its entirety and
replaced-with the new Scope of Services, attached and incorporated as Exhibit "A" hereto.
3. The License Agreement for access to the Contractor's Web Hosting and use of the
TripTix Product is attached and incorporated as Exhibit "B" hereto.
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4. Compensation and Payment for the TripTix .Product is added as Paragraph 2 to the
Section entitled. "Payment .for Services" of the Agreement, Sub-section 3.1 entitled "Fees"
-and is hereby amended to read as follows:. f
City hereby agrees to pay Contractor a monthly _ fee in addition to the fees
previously specified, for the use of Contractor's TripTix Program Services as set
forth, in Schedule 2.01 of the License Agreement. In the event of early termination
of the TripTix License Agreement, other fees may also become due as specified .
in the License Agreement.
:5. Except as expressly amended ~ herein, all other-.terms and conditions of the Agreement
- shall remain unchanged. and in full force and effect.
~- IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their appropriate officials, as of the date first entered above.
~, FOR CITY ~ ~ CITY OF MIAMI BEACH, FLORIDA ~ ,
ATTEST:
.City Clerk
.Robert Parcher
/G S'ayfc~t9~YL Zu/U
` ~ Date
FOR CONTRACTOR:
ATTEST:
. By:
Secretary /
- /3 ~Q ~I Wf ~ ~i LLN~.S
Print Name
9 - y~ ~a
. Date
Jo .~Gon al
Ci Ma ager
.,Date
ADVANCED DATA PROCESSING, INC.
D/B/A INTERMEDIX- ADPI
/ ,~ .
f ~2
}t-- C h ~ cF p~caPCC~fi:~gO~iiP,Q
den Cao K~ ..JJ
Print Name -
9~q-fo
Date
APPROVED AS TO
FORM & LANGUAGE
,& Ff1H EXECUTION
... ~2
- ~~ L~ `~
ate
EXHIBIT A
NEW SCOPE OF SERVICES
Contractor shall .perform and carry out the services as described. in this Exhibit.. City reserves
the right. to request changes to the following Scope.. of Services, which changes shall be
implemented upon mutual written agreement of the parties (specifying such changes and any
change in compensation attributable thereto). The following Scope of Services herein
- supersedes and replaces any scope previously provided in the Agreement.
A. Base Services and Obligations -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, as deemed appropriate
. by Contractor.
5. Respond.to and followup 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, which shall be accessible to City at all reasonable times and , at
a minimum, during normal business hours (i.e. Monday through. Friday, from 9 a.m. to 5 p.m.,
' excluding nationally recognized holidays).
- ~ 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.
14..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.
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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
' 44. 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 Cify 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 {i.e. Monday through Friday, 9 a.m. to
5 p.m,, excluding. nationally recognized holidays).. _ ~ ,
21. Provide timely comprehensive reports in a mutually. agreed upon format facilitating
.all required aspects of monitoring, evaluating, auditing and rnanaging 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 of which it .becomes aware, and the steps
that are being.. taken to mitigate any potential security compromise. -
B.. Specific Scope Compliance -Contractor shall perform specific aspects of the above
Base Services and Obligations for City.., as described below. ~ Contractor shall:
1. Assign billing. patient .numbers providing .cross-reference to City's assigned
transport numbers.
2; Maintain responsibility for obtaining missing or incomplete insurance information.
3. ..Provide accurate coding. of medical claims based on information provided by
City. -
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- ~ 4. Make recommendations for fee schedule changes and regularly advise City on
.changes in statutes and industry regulations. .
5. Negotiate acid 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) ahd, after twelve (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
prior written consent: - .
Z. 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 (OlG).
14. Provide TripTix based...reporting extract of data required by State or -local
regulatory .authorities connectivity/interface in a format reasonably required by the 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 -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: .
i. the total payments are for at least 80 percent of the amount of the bill grid the
length of the payments do not exceed 18 months.
ii.; 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
. iii. Contractor is able to make arrangements for the payment of patient account
that provide a substantially similar ecoriomic benefit to City.
b) Scope of collection efforts: If reasonable efforts have been -made to collect an
account and such efforts have not been successful, Contractor shalt 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
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inforrriation. Absent contrary instructions from City vvith 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 wilC 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 - The City wilt meet the following
responsibilities and obligations to facilitate the Contractor's ability to perform its scope of
services:
1. From each patient who receives EMS from City ("Patient"), City shall use reasonable
. efforts to obtain and forward•the following. information ("Information") to Contractor:
a) The Patient's full name and, date of .birth
.. b) .The mailing address, (including -Zip Code) and telephone number of the
. Patient or other .party responsible for payment ("Guarantor")
c) The Patient's social security number
d) The name and address of the Patient's health insurance. carrier,.. name of
policyholder or primary covered party, and any applicable group .and LD .
numbers ~ `
e) -The auto insurance carrier's address and/or agent's name .and phone
number if an automobile is involved
' . f) The employer's name, address and Workers Compensation Insurance
information: if the. incident is work related
g) The Patient's Medicare or Medicaid HIC numbers if applicable
h) The Patient's or Guarantor's signed payment authorization and release of
medical authorization form or other documentation sufficient to comply with
.applicable signature requirements
i) The call times, "transporting unit, and crew members with their license
level, i.e. EMT-B, EMT-I, or EMT-P
. j) Odometer readings such that loaded miles may be calculated.
k) Physician certification statements (PCS) for non-emergency transports
that are to be billed to Medicare pursuant to CMS regulations, if applicable.
- I) Any other information that Contractor may reasonably require to bill the
Patient or other Payor.
' 2:. City warrants that, to the best of its knowledge, information and belief, but without the
obligation to make independent inquiry therefore, all information provided to Contractor shall
be accurate and complete. Contractor shall have no. obligation to verify the accuracy of
such information, and Cify shall be solely responsible for such accuracy. To the extent
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provided by Florida law, and subject to the- limitations of City's liability pursuant to Section
768.28, Florida Statutes, City agrees to indemnify Contractor, its agents, and employees
. from any and all liabilities and costs, including reasonable attorneys' fees, resulting from any
.inaccurate or misleading information. provided to Contractor that results in the actual or
alleged submission of a false or fraudulent claim.
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. reasonably 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 OlGexclusion 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 ten (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 ten (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 & TripTix Product
License Agreement
This License Agreement is entered into this /6 ~ day of ~~~~~~ ~ 2010,
between the. City of Miami Beach, Florida (City) and Advanced. Data Processing, Inc. d/b/a
- Intermedix - ADPI (Contractor). ~ .
` 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; (ii) to access and use the
.Contractor 's proprietary TripTiz Product software (the "Product") in executable code format on
. Contractor -supplied tablet. PCs via Internet connection to Contractor's hosting 'facility solely in
support of the Product with respect to the City's EMS services; and (iii) 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, Product or Documentation is .
' ~ permitted: City shale 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 interf ~ ce or interact.. with .the Software or Product 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 or Product. The Software or
Product 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. 1n order to use the Software and the Product, City agrees to be
u 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 andProduct subsequent to such
notice(s) shall constitute City's acceptance of the EULA(s).
With. respect to Software the following applies:
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 shalt 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 ahe
clock, .ready to iritervene 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.
5. Limitation of Access to Software. City's right to access and use the Software will vary
- depending upon the cope of the Contractor Services being provided by Contractor. Byway 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
a - 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 if is solely responsible for providing security softvvare,
includirg without limitation, firevvalls and similar applications;-#o .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.
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` 9. Data protection. Contractor addresses customer privacy .issues-very seriously. Contractor
agrees that it wily 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 oi- indirect competition with City any information or data posted. by or for the benefit of City
on Contractor's vvebsite 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 aws, 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 License 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) To the extent allowable under Florida law, and subject to the limitations of liability
afforded the City .pursuant to Section .768.28, Florida Statutes, City shall
indemnify 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
intellectual property rights.
(b) Contractor shall indemnify., hold harmless and, at City's 'request 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 trarisactions.
_ Contractor maintains adequate professional liability ihsurance 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
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.party's rights or obligations shall be made without either party's prior written
approval.
With respect to the. Product the following applies:
- _ ARTICLE L- DEFINITIONS
1.01 Definitions. For all .purposes of this License Agreement, 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 ime 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 afterit 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 vvas 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 License. Agreement 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 License Agreement
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 License Agreement who
has been served with written notice that it is, not in compliance with any term to this License
Agreement.
"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 License Agreement executed it.
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"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 Contracto'r's rights" in and to the Product,
including, without limitation, Contracto`r'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 thearea in which City operates its emergency medical
service at the time of entering into this License Agreement.. "
"Material Breach" shall.. have the meaning -given to it. in Article .5 of this Licensee
. Agreement.
"Material Non-Monetary Breach" shall have "the meaning .given to it in Article 5 of this "
.° License Agreement.
_" "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 License Agreement.
"Product Unit" shall mean a single data collection device delivered pursuant to the terms
' and conditions of this License Agreement 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.
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"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 License Agreement.,
ARTICLE II. PRICE AND PAYMENT
2.01 Adjustment to Rates of Compensation under the Agreement. The
.compensation due and owing.., Contractor by City during the term of this License Agreement shall
be as set forth iri Schedule 2.01 hereto of the License Agreement.
2.02 License Fees. In addition to' the payments required pursuant to the provisions of
Section 3:1 of the Agreement, City, if applicable, shall make the payments in .connection with
Third=Party Intellectual Property Royalty Payments as further set out on Schedule 2.02 hereto.
In" the event that City terminates this.License Agreement within the first 18 months, it
shall pay an early termination fee as identified in Section 3.1 of the Agreement and as further
specified in Schedule 2.03 of this License Agreement.
2.03 Payment Terms. All undisputed amounts shall. be paid as specified in the
Agreement. -
204 Taxes. City shall pay alf 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
mainteriance provided during the term of this License Agreement, excluding only taxes based
solely on Contractor's income. "
ARTICLE III. PROPRIETARY RIGHTS
. 3.01 City acknowledges that Contractor and its suppliers, including, without 1irnitation,
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 License Agreement. 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, 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
mailable -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
amended fee described in Section 3.1 of the Agreement and as further specified in Schedule
2..01 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
5.01 Generally. The term of this License Agreement 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 License Agreement ("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 License Agreement
pursuant to the terms and provisions of this License Agreement.
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' 5.02 Termination. Notwithstanding any other language herein a termination of the
.License Agreement shall not operate to terminate the Agreement, but a termination of the
Agreement shall operate as a termination of this License Agreement.
5.03 Termination of the License Agreement..
Termination , by City upon Contractor Material Breach. City may- terminate this
License Agreement (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
Licerise Agreement (but .not the .Agreement) at any time by providing notice to Contractor,
making payment in full of the required early termination payment disclosed in Schedule 2.03 of
this Amendment with respect to EACH Product Unit delivered pursuant to this License
Agreement and returning all .Product Units to Contractor. '
Termination by Contractor upon City Material Breach. Contractor may terminate this
License Agreement. if City commits;
-a Material Monetary Breach City fails to pay any undisputed amount due under -
this License Agreement 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 30 days of a written ..notice of termination. .
5.04. Any termination of the License Agreement shalt 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 License Agreement, 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 License Agreement 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 LICENSE AGREEMENT
' 6.01 Material Non-Monetary Breaches.
8 '
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City Material Non-Monetary Breach.. For purposes of this License Agreement, 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 License Agreement.
Contractor Material Non-Monetary Breach. For purposes of this License Agreement,
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 License Agreement. .
Contractor and City° Material Non-Monetary Breach. For purposes of this License .
Agreement, 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 License Agreement, 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 License Agreement or the
Agreement when and as due; or
Such party fails to-reimburse the other party for payments made on its behalf foi-Third-
Party Intellectual Property Royalty Payments.. ,
ARTICLE VII. LICENSE
7.01 License. Commencing on the Effective Date and subject to -the terms and
. ~ conditions of this License Agreement, Contractor grants City anon-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 License
Agreement 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 License Agreement, City shall have no rights to. own, use or
otherwise, exercise dominion over the Product. Except as otherwise permitted under- this
License Agreement,. 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 -
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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
. .License Agreement. 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 operatiori 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 ih which #his 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:
8.01, 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
COMMUNfCAT10N WITH CITY WITH RESPECT TO THE PRODUCT OR OTHER ITEMS
DELIVERED PURSUANT TO THIS LICENSE AGREEMENT 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 License Agreement, 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 exisf, 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
40
furnished by Contractor ; or (iv) modified for custom development kiy Contractor for City as
. agreed in an Order. .ANY REFUND OF FEES PROVIDED HEREUNDER (WHICH .MAY BE
n UNDERTAKEN AT CONTRACTOR'S SOLE AND COMPLETE .DISCRETION) SHALL BE
DEEMED A TERMINATION OF THIS LICENSE AGREEMENT (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 City 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 City, or
gthat 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 LICENSE AGREEMENT- 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 fN ANY WAY OUT OF THIS LICENSE
AGREEMENT UNDER ANY CAUSE OF ACTION, WHETHER OR NOT CONTRACTOR HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL
CONTRACTO 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. ~ "
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IN WITNESS OF THE FOREGOING, City. has caused this License Agreement to. be
. executed and placed into effect .by the signature below of a duly authorized person and
` Contractor has executed this License Agreement effective as of the date set forth on the first .
- page of this Agreement.`
` t.
City (Print Name & Title))
Contractor (Print Name & itle)
APPROVED AS TO
FORM & LANGUAGE
ON
. a ti1~ ~
ate
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. Schedule 2.01.
Rates of Compensation;.Collection Efforts. ,
From and after the Effective Date and during the Term of this Agreement, the Contractor shall
be compensated as follows:
In consideration of the Contractor's services rendered pursuant to this Agreement, and as more
specifically .set forth in Exhibit "B", Contractor shall be compensated and paid in accordance
with the following schedule (Percentages are expressed as an additional Percentage of Net
Collections to the Contractor's contracted billing fee as defined in,the Agreement);
• " Twelve (12) Pen-based Panasonic Toughbook
Tablet units, Field Automation Software, •
Administrative Reporting System., includes training;
• support and One (1) .spare Pen-based Tablet unit
(referred heretofore as "TripTix"). 5.20% of -Net Collections
• • Additional Units (ea.) ~ 0.40% of Net Collections •.
Payments by City rt
The above pricing to be compensated and paid to Contractor monthly for the specified number
of units as-follows:
• Year 1 = 5.20% of net collections shall not exceed $80,000 for the year;
• Year 2 - 5.20% of net collections shall not exceed $84,000 for the year;
• ~ Year 3 - 5.20% of net collections shall not exceed $88,200 for the year;
• Each additional year thereafter -Annual limit. shall be by mutual agreement
• ~ Additional units may be added for which the monthly amount will be increased by 0.40% of net
collections for each unit and will increase the annual limit by $6,000 per unit added.
The above price quote is based on transport .volume provided by the City•as shown below.
• 'Should transport volumes decrease greater that` ten percent (10%), the unit fee and the annual .
'limit will be increased proportionately. - ~ •
Annual, Transport Volume - 6,900
Additional units may be added to the addendum by .mutual agreement of the parties.
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;,,
Schedule 2.02
' Third-Party Intellectual Property Royalty Payments
In addition to the other compensation required under this Agreement, if applicable, Third-
Party intellectual Rroperty Payments shall be made as follows: ~ ,
Licensing/Royalty agreement, if applicable, may be executed between City and the
manufacturer of the City's defibrillating equipment when the manufacturer has cleared.
the Triptix equipment for direct interface between' their equipment and.the Contractor-
provided data devices,
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Schedule 2.03
Initial Term Early Termination Payments
~~ The Initial Term Early Termination Payments with respect to each Product Unit are as
' follows:
Period Amourit
(1} For an Early Termination during the first 18 months from.
the beginning of the Term:
Panasonic Toughbooks $4,500
(2~) For an Early Termination during the remainder of the $---0---
Term:.
_. - i