Enterprise Agreement - Emageon UV Inc. and Ascension Health
EMAGEON UV, INC. MASTER TERMS AND CONDITIONS
ENTERPRISE AGREEMENT
THIS EMAGEON ENTERPRISE AGREEMENT (the "Agreement") is made this 5th day of May,
2004 (the "Effective Date"), by and between EMAGEON UV, INC. ("Emageon"), whose
principal place of business is at 1200 Corporate Drive, Suite 400, Birmingham,
Alabama 35242, and ASCENSION HEALTH, ("Ascension Health") whose principal place
of business is at 4600 Edmundson Road, St. Louis MO. 63134. The parties have
structured this Agreement to permit Ascension Health and the Ascension
Affiliates, as defined in Section 1.1, to purchase Emageon's products and
services upon the terms and conditions contained herein. An Order Addendum will
be executed between Emageon and either Ascension Health or an Ascension
Affiliate to detail specifics regarding the products and services purchased.
Throughout this Agreement, the term "Customer" shall refer to any Ascension
Affiliate that is bound by the terms and conditions of this Agreement. Ascension
Health shall have no liability or obligations (financial or otherwise) under
this Agreement or on behalf of an Ascension Affiliate, unless otherwise
specifically set forth in this Agreement or if the Order Addendum is in the name
of Ascension Health.
1. DEFINITIONS. As used in this Agreement and in addition to any other
terms defined herein, the following defined terms will have the
following meanings:
1.1. "Ascension Affiliate" means any entity in or with which
Ascension Health: (i) is its sole corporate member; (ii) owns
more than a 20% ownership interest; (iii) has voting control
of the membership interests or managing board; (iv) has an
agreement to manage the entity's operations; (v) has
officially deemed the entity to be an affiliate via
contractual arrangement or memorandum of understanding which
agreement or memorandum is not solely for the purpose of
providing access to the special corporate discounts; or (vi)
has a contract to provide data processing services which are
not solely for the purpose of providing access to the special
corporate discounts. In addition, Ascension Affiliate shall
include any entity which is part of a chain of entities all
related in a manner described in items (i) through (vi) above.
1.2. "Ascension Ministry" means a group of Ascension Affiliates
that have been designated by Customer as an Ascension
Ministry.
1.3. "Clinical Information System" means an enterprise or
departmental electronic health record or departmental
information system (e.g. Radiology Information System) which
would require the presentation of medical images.
1.4. "CPI" means annual percentage increase set forth in the United
States Department of Labor Consumer Price Index, all Urban
Consumers, U.S. city average, all items with an index base
period of (1982-1984= 100).
1.5. "DICOM" means Digital Imaging and Communications in Medicine
and is the industry standard for transferring radiological
images and other medical information between computers.
Patterned after the Open System Interconnection of the
International Standards Organization, DICOM enables digital
communication between diagnostic and therapeutic equipment and
systems from various manufacturers.
1.6. "Eligible User Population" means all Customer employees,
agents, independent contractors, and customers who Customer
authorizes to access the SYSTEM.
1.7. "Emageon Software" means all computer programming/formatting
code or operating instructions created and/or designed by
Emageon. Emageon Software includes, but is not limited to, any
files necessary to organize, manage, store, transfer,
visualize, and retrieve DICOM images or HL7 messages, and
similar functions and underlying technology or components,
such as image processors, image compression, interface
programs that link other programs, customized graphics
manipulation
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engines, and menu utilities, whether in database form or
dynamically driven, all as created and/or designed by Emageon
and as set forth in Attachment B of each Order Addendum.
1.8. "Facility" means a location utilizing the SYSTEM that is an
Ascension Affiliate and part of an Ascension Ministry.
Facilities shall be designated in each Order Addendum.
1.9. "First Productive Use" means the date when Emageon certifies
to Customer that the SYSTEM is fully capable of performing its
functions pursuant to its specifications.
1.10. "Hardware" means the hardware components necessary for the
operation of the SYSTEM as set forth in Attachment B of each
Order Addendum.
1.11. "Hardware Installation Acceptance" means, unless otherwise
provided herein or in the respective Order Addendum, the date
Emageon certifies completion of installation of the Hardware
in accordance with the mutually agreed upon written
installation schedule and plan. If Emageon is prevented from
installing the Hardware in accordance with the mutually agreed
upon written installation schedule due to Customer's inability
to take delivery, or begin installation of the Hardware, the
Hardware Installation Acceptance shall be fifteen (15) days
after the agreed upon written installation schedule.
1.12. "Implementation Services" means those activities associated
with the installation and integration of the SYSTEM and
described in the respective Installation Plan and as outlined
in Exhibit A hereto.
1.13. "Installation Acceptance" means the SYSTEM has been installed
and tested for a period of thirty (30) days from First
Productive Use and has been found to be functional and capable
of performing the functions that it is intended to perform
when operated by a knowledgeable operator under specified
operating conditions. Upon completion of the thirty (30) day
testing period, Installation Acceptance shall be effective. If
any nonconformity of the SYSTEM is discovered by the Customer
during the thirty (30) day test period, Customer shall notify
Emageon in writing immediately upon the discovery of such
nonconformity and Emageon shall make every effort to correct
such nonconformity within ten (10) days unless another period
of time is mutually agreed upon by both parties and evidenced
in writing signed by both parties. Should Emageon be prevented
from installing the SYSTEM in accordance with the mutually
agreed upon written Installation Plan due to delays caused
solely by the Customer then the SYSTEM shall be deemed
installed and accepted forty-five (45) days after the agreed
upon Installation Acceptance date as set forth in the
Installation Plan. Upon Installation Acceptance, Emageon shall
invoice the respective Customer for all fees associated with
the Installation Acceptance. Should Installation of the SYSTEM
be delayed solely due to the fault of the other party, the
delayed party may recover from the delaying party actual
expenses incurred as a direct result of such delay.
1.14. "Installation Plan" means the mutually agreed upon series of
milestones that must be accomplished and the target dates for
such milestones. A sample installation plan is set forth in
Exhibit F. A custom installation plan shall be developed for
each Customer Facility within two weeks, or as mutually agreed
upon, of the execution of an appropriate Order Addendum and
each such custom installation plan shall be incorporated into
the appropriate Order Addendum.
1.15. "Integrating the Healthcare Enterprise" (IHE) is a joint
initiative by the Radiological Society of North America (RSNA)
and the Healthcare Information and Management Systems Society
(HIMSS), focused on improving the way computer systems in
healthcare share information. IHE promotes coordinated use of
established communications standards such as DICOM and HL7 to
address specific clinical needs in support of efficient
patient care. A dynamic and evolving standard, IHE members
submit, negotiate and agree upon implementation profiles to be
used for transactions allowing medical images and patient data
to be shared across an enterprise.
1.16. "Intellectual Property Rights" means any and all rights
existing from time to time in any jurisdiction under patent
law, copyright law, moral rights law, trade-secret law,
semiconductor chip protection law, trademark law, unfair
competition law, or other similar rights.
1.17. "Material Breach" means that either party fails to carry out
its obligations as set forth in this Agreement. Examples of
Material Breach include, but are not limited to, the failure
of the SYSTEM to perform
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substantially in accordance with the documentation such that
the operations of the Customer are impacted OR the failure of
the Customer to make undisputed payments.
1.18. "Modality" means a medical acquisition device such as Magnetic
Resonance, Computed Tomography, Nuclear Medicine, Ultrasound
and the like used in clinical departments such as Radiology
and Cardiology.
1.19. "Order Addendum" means the document in substantially the form
of Exhibit I attached hereto that will be executed by Emageon
and a Customer for each order of Hardware, Software,
Implementation Services, and Professional Services.
1.20. "Professional Services" means those activities requested by
Customer that are beyond the scope of the Implementation
Services and Support Services as set forth in Exhibit B of
each Order Addendum. An example of Professional Services would
be migration of legacy data. Professional Services fees are
billed separately from the SYSTEM fees and shall be set forth
in a separate Statement of Work. Professional Services will be
provided to Customer at the Professional Services Rates.
1.21. "Professional Services Rates" means those rates for
professional services as set forth in Exhibit J hereto.
1.22. "Services" means use of and access to the SYSTEM.
1.23. "Software" means the combined Emageon Software and Third Party
Software.
1.24. "Study" means an imaging service or procedure request with a
DICOM Study Instance Unique Identifier, which may consist of
multiple series from multiple modalities.
1.25. "SYSTEM" means the Emageon Software, Third Party Software and
Hardware as generally set forth in Attachment B of each Order
Addendum.
1.26. "System Upgrades" means any improvement in the Software that
enhances or modifies the basic function of the Software or any
new software that Emageon markets as a replacement of or
upgrade to the Software.
1.27. "System Updates" means any improvement in the Software that
relates to operating performance but does not alter the basic
function of the Software.
1.28. "Third Party Software" means all computer software created by
a third party (whether supplied in this Agreement or licensed
during the term hereof) in which the intellectual property
rights are not owned by Emageon, including without limitation,
any computer software specified as such in Attachment B of
each Order Addendum.
1.29. "Total Accountability Services" means the highest level of
Emageon Service and Support options for software and hardware,
including but not limited to; extended service hours,
additional consulting and analysis services, system monitoring
capabilities, additional training services, integration
services, business and financial performance metrics and
reporting.
2. EMAGEON OBLIGATIONS.
2.1. Emageon shall provide Customer with use of the SYSTEM, which
shall be installed by Emageon in accordance with Exhibit A and
Attachment E of each Order Addendum and supported through the
term of this Agreement in accordance with Exhibit B.
2.2. Emageon agrees to work in good faith with Customer and the
Customer's Clinical Information Systems vendors, including but
not limited to those Clinical Information System vendors
listed on Exhibit K, to interface the SYSTEM with the
Customer's Clinical Information Systems. The appropriate fees
for such interface shall be agreed upon by both parties and
shall be set forth in the respective Order Addendum. In no
case shall the fees exceed the Professional Services Rates.
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2.3. Within thirty (30) days of the execution of this Agreement,
Emageon shall name a relationship manager to be the primary
point of contact for all joint activities.
2.4. Emageon agrees to provide as part of the SYSTEM, at no
additional cost to Customer full-motion video functionality
for angiography and ultrasound for Radiology use by July 31,
2004. Also, Emageon agrees to provide as part of the SYSTEM,
at no additional cost to Customer, application programming
interface software which integrates the Ultravisual viewer
into Clinical Information Systems to permit launching of a
study from within such Clinical Information System by July 31,
2004. Note that there are separate Professional Services fees
for viewer launching integration with Clinical Information
Systems: $10,000 for viewer launching integration and $10,000
for HL7 Study Arrival / Deletion notification. Failure of
Emageon to achieve the results in a commercially acceptable
fashion within the timeframes set forth above, shall result in
Emageon paying Customer liquidated damages equal to
$25,000.00.
2.5. Emageon intends to provide basic * * * functionality by March
31, 2006 to be priced at mutually agreed to rates. As of the
date of this Agreement, Emageon supports * * * within the
Ultrastructure Software. However, should Emageon not provide
the * * * functionality as intended, there shall be no
recourse to Emageon or this Agreement.
2.6. Emageon agrees to work with Ascension to develop the proper
platform and network configuration to enable an infrastructure
that will allow multiple, geographically dispersed Facilities
to share efficiently in a single common archive. This solution
must allow for proper security and scalability to support a
multiple Facility implementation and comply with regulatory
constraints and common industry practices on medical record
access.
2.7. Emageon represents and warrants that it will continuously
provide support for and be actively engaged in research and
development with respect to the SYSTEM for a period that is
the lesser of: (i) the term of this Agreement and any
amendments thereto; or (ii) ten (10) years from the Effective
Date. The foregoing support shall be provided to Customer at
no additional charges to Customer except for fees set forth
herein.
2.8. While at the Customer locations, Emageon and Emageon
employees, agents and subcontractors ("Emageon Personnel")
shall (1) comply with reasonable requests, standard rules and
regulations of Customer regarding personal and professional
conduct (including the wearing of a particular uniform,
identification badge, or personal protective equipment and
adhering to health care facility regulations which in some
instances may include health screening and testing, and
general safety practices or procedures) generally applicable
to such locations and (2) otherwise conduct themselves in a
businesslike manner. In the event that Customer determines in
good faith that the continued assignment to the project of one
or more persons is not in the best interests of Customer (and
provided the basis for such determination is not prohibited by
law), Customer shall consult with Emageon to that effect. Upon
such consultation, Emageon shall have a reasonable period of
time in which to investigate the matters stated in such
notice, discuss its findings with Customer and resolve the
problems with such person. If, following such period, Customer
requests replacement of such person, Emageon shall replace
that person with another person of suitable ability and
qualifications. However, where Customer notifies Emageon that
Customer has determined that the nature of the concern is such
that such person should be removed immediately from Customer's
account, Emageon shall immediately remove such individual(s)
from Customer's account pending such investigation and
discussion. In any event, any request by Customer to remove an
individual from Customer's account shall not be deemed to
constitute or require a termination of such individual's
employment by Emageon and in no event shall Customer be deemed
an employer of any such person. Notwithstanding the foregoing,
in no event shall Emageon be required to remove a person from
the project under this Section if Emageon believes in good
faith that doing so might subject Emageon to legal liability
for so doing, provided that Emageon provides Customer with the
rationale for its belief.
3. CUSTOMER OBLIGATIONS.
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3.1. Customer shall have full responsibility for preparing,
maintaining and supporting those Modalities not provided by
Emageon in Attachment B of each Order Addendum. This includes,
but is not limited to, preventative maintenance, quality
control, following clearly defined technique and acquisition
procedures, and generally maintaining the system such that it
operates to its manufacturer's most recent specifications.
Further, the Customer is responsible for insuring these
Modalities are prepared to begin transmitting, and can
appropriately deliver DICOM data to the SYSTEM in the format
provided for by Emageon. In the event Emageon needs to provide
additional DICOM integration services, for non-standard DICOM
integrations, additional Professional Service fees will apply.
Emageon may, in certain circumstances, provide for, as
identified in Attachment B of each Order Addendum, a DICOM
interface device to the legacy, non-DICOM Modality. In this
event, those DICOM interface devices will be maintained by
Emageon in accordance with Emageon's responsibilities
identified in Exhibit B. Professional Services charges will
apply for standard DICOM modality integrations occurring
outside the scope of this Agreement.
3.2. Customer shall have full responsibility for preparing,
maintaining and supporting its information systems such as its
hospital information system, radiology information system and
any interface devices used to consolidate the information
systems. Typical support costs for these information systems,
which are the responsibility of the Customer, include general
maintenance, adding extra connectivity points and upgrades and
updates to those information systems.
3.3. Customer shall have full responsibility for preparing,
maintaining and supporting the necessary infrastructure
required to operate the SYSTEM. This includes, but is not
limited to, facilities, both wide area and local area
networks, heating and cooling systems, and electrical and
other energy sources, including uninterruptible power systems
and electrical back-up devices.
3.4. Customer shall be responsible for preventing any virus
infections, security breaches, and other disabling events
("Disabling Event") from damaging the SYSTEM. Consequently,
Customer shall use a reliable and commercially accepted virus
detection system on any software and hardware that interfaces
to the SYSTEM. Customer must also have in place antivirus and
information systems security policies and procedures. In the
event that the SYSTEM is subject to a Disabling Event,
Customer shall immediately notify Emageon and Emageon shall
work with Customer in order to bring the system back to
pre-Disabling Event status. All time, materials and expense
involved with Emageon's investigation, planning and execution
of a SYSTEM rebuilding plan shall be billed separately to
Customer at the Professional Services Rates. Additionally, any
SYSTEM down time attributable to a Disabling Event shall not
count against non-scheduled down time. Not withstanding the
foregoing, however, any Disabling Event resulting from an act
or omission committed in breach of Emageon's obligations as
set forth in this Agreement shall be remedied by Emageon at no
cost to Customer and any SYSTEM downtime attributable to such
a Disabling Event shall count against non-scheduled downtime.
3.5. Software Upgrades. Customer agrees that they will install all
Software Upgrades to the Emageon Software such that they are
never behind more than the version that was generally in
release * * *.
3.6. Within thirty (30) days of the execution of this Agreement,
Customer shall name a relationship manager to be the primary
point of contact for all joint activities.
4. USE AND ACCESS TO THE SYSTEM.
4.1. Subject to the terms, conditions and limitations set forth in
this Agreement, Emageon grants Customer and the Eligible User
Population a non-transferable perpetual right to access and
use the Software ("Perpetual License"). The rights granted
hereunder include without limitation the right to reproduce or
copy all or any portion of the Documentation included with the
SYSTEM in machine-readable or printed form as determined by
Customer to be reasonably required for its own internal data
processing needs. Customer may make and use as many copies of
the Software as are reasonably appropriate only for archival,
backup and recovery purposes. In connection with Emageon
performing the Services, Emageon may develop modifications to
the Software and/or new software programs (collectively, the
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"Developed Software"). Emageon reserves all rights to the
Developed Software, including, but not limited to, all
Intellectual Property Rights therein. Emageon hereby grants to
Customer a non-exclusive, non-transferable right to use the
Developed Software solely for use with the SYSTEM and subject
to the rights set forth in this Section 4.
4.2. The right to use the SYSTEM granted hereunder and the terms
and conditions of this Agreement shall cover all custom
Software and related Documentation developed on a
time-and-materials or flat-fee basis by Emageon at Customer's
request.
4.3. Customer will not remove any proprietary notices of Emageon or
third parties found in or on the Software. The Emageon
Software in both object and source code form, and all rights
to the Emageon Software, including but not limited to the
Intellectual Property Rights therein, are and will remain the
exclusive property of Emageon. Customer will have no claim of
ownership to the Intellectual Property Rights in the Emageon
Software or any Third Party Software. Customer will have no
right to sublicense either the Emageon Software or the Third
Party Software or allow access to the SYSTEM to unauthorized
users. All data-source documents provided by Customer and all
output based upon those documents shall remain Customer's
property.
4.4. Customer and Emageon acknowledge and agree that the provisions
of this Agreement do not prohibit Customer from utilizing a
third party to manage and operate the SYSTEM on its behalf
("Outsourcer"). Outsourcer shall have all the rights granted
to Customer herein solely for the purpose of providing
services to and making the SYSTEM available for Customer's
use.
5. PAYMENTS.
5.1. Fees. Pricing as set forth in Attachment C of each Order
Addendum is calculated based upon information provided and
approved by Customer as set forth in the Site Survey attached
as Attachment A of each Order Addendum. Should Customer add
equipment, Emageon shall work with Customer in good faith to
determine whether any additional charges should apply to a
change in its equipment configuration from that set forth in
Attachments A and B of each Order Addendum.
5.2. Overage Fees. Customer agrees that should a Facility 1) bring
up a Modality type (* * *) that was not described in the
Facility's executed Order Addendum or, 2) open an additional
facility that is not on contiguous land to the Facility or, 3)
acquire, merge, provide or share services with other health
entities that are not a part of Facility as of the effective
date of their respective Order Addendum, thereby increasing
its study volumes above those set forth in Attachment C of the
respective Order Addendum, Emageon may charge an Overage Fee
equal to the study volume in excess of the projected study
volume multiplied by the actual price per study of the
Ultrastructure Software and Maintenance fees for that
Facility.
In the event that the study volumes increase by more than
twenty percent (20%) for any reason other than those as set
forth above in any year over the projected study volumes for
that year as set forth in Attachment C of the respective Order
Addendum, Emageon may charge an Overage Fee equal to the study
volume in excess of twenty percent (20%) of the projected
study volume multiplied by the actual price per study of the
Ultrastructure Software and Maintenance fees for that
Facility. Payment for such overages, if any, shall be
considered one-time annual fees due to Emageon within thirty
(30) days of completion of such usage audit. Overage
calculations and related fees for any given year are
independent of overage calculations and related fees for any
other year. Customer also acknowledges that it may be required
to purchase additional hardware in order to support such
overage.
5.3. Billing. Emageon will bill Customer for all fees and expense
reimbursements due under the terms of this Agreement as set
forth in Exhibit C and in Attachment C of each Order Addendum.
Unless otherwise specified in this Agreement or an Order
Addendum, Customer will pay the undisputed amount of such bill
within thirty (30) days after the date of such bill. For each
year of this Agreement, Emageon will bill Customer the annual
fee on a pro rata monthly basis. Within forty-five (45) days
of the end of each year of this Agreement, Emageon and
Customer will perform an audit of the prior
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year's actual billable amounts. Subject to Section 5.2 above,
any amounts due Emageon after the audit will be due thirty
(30) days after the date of the completion of the audit.
5.4. Late Fees. Emageon may assess Customer a late fee of 1% per
month (not to exceed the maximum allowed under state law) on
all undisputed balances not paid when due.
5.5. Disputes. Any fees subject to reasonable dispute by Customer,
provided that Customer has notified Emageon in writing of the
basis for the dispute within 30 days of date of disputed
invoice, will not be subject to monthly late fees or be used
as a basis for suspending the services. Should dispute not be
settled by members of the respective accounting departments
within 30 days of Emageon's receipt of notice of disputed
invoice, a face to face negotiation shall be conducted by
senior executive representatives of Emageon and Customer.
Should the executive representatives be unable to resolve such
dispute within fourteen (14) days, either party may then seek
all remedies available at law. Should either party institute
an appropriate suit, the non-prevailing party in such suit
shall be responsible for any and all associated costs,
including reasonable attorney's fees.
5.6. Professional Service Fees. The Professional Service Rates
shall apply for all services rendered by Emageon which are
outside the scope of this Agreement. Reasonable and customary
expenses incurred by Emageon while engaged in such work,
including without limitation, expenses incurred for travel,
including local transportation, lodging and meals in
accordance with Exhibit E, will be billed to Customer at
Emageon's actual cost. Best efforts will be made by Emageon so
that no Fees outside the scope of this Agreement are incurred
without the prior written approval of the Customer.
5.7. Renewal Term Fees. For each renewal term, the Annual Support
and Maintenance fees for the Ultrastructure and/ or DICOM
Cache Manager Software License Fees shall be calculated based
upon the average annual projected volume for such Renewal Term
as defined in Section 12.1. The fees for the annual Support
and Maintenance for both the Ultrastructure and/ or DICOM
Cache Manager Software as well as the Ultravisual Software
shall continue at the rates set forth in this Exhibit C plus
an adjustment to reflect the CPI for the twelve (12) months
immediately preceding the effective date of the Renewal Term
or five percent (5%), whichever is lesser. All other
appropriate service fees as set forth herein shall be billed
to Customer at the then-current rates in accordance with the
terms of Exhibit C.
5.8. Expenses. Customer will pay or reimburse Emageon for any
reasonable out-of-pocket expenses, including, without
limitation, travel and travel-related expenses, incurred by
Emageon in connection with the implementation and support of
the SYSTEM pursuant to Emageon's expense and travel policy
attached hereto as Exhibit E.
5.9. Taxes. Customer will pay all sales, use, transfer, privilege,
excise, charges, surcharges or other taxes, and all duties,
whether international, national, state or local, however
designated, which are levied or imposed by reason of the
transactions contemplated hereby (collectively, the "Taxes");
excluding, however, income taxes on profits which may be
levied against Emageon. Customer will pay the amount of any
Taxes applicable to the transactions contemplated hereby, or
in lieu thereof, Customer will provide Emageon with a tax
exemption certificate acceptable to the applicable taxing
authorities. Customer will indemnify and hold Emageon harmless
from and against any and all losses, damages, penalties, costs
and expenses, including legal and accounting fees, incurred or
suffered by Emageon which result from or arise out of any
liability or taxes arising from a failure to pay Taxes under
this Agreement.
5.10. Most Favored Customer. Emageon represents that, upon execution
of this Agreement, Emageon has granted no more favorable
pricing to a "Comparable Purchaser". A "Comparable Purchaser"
is a purchaser of products and/or services where the following
conditions apply: (i) the type of contract is similar to the
nature of the relevant Customer contract (e.g., Managed Use
Agreements will not be compared to Perpetual License
Agreements); and (ii) the respective study volumes and number
of Facilities, in the aggregate, are not greater than ten
percent (10%) of Customer's similar factors. Emageon and
Customer agree to conduct an annual assessment on pricing
terms with respect to future contracts, including those
between Emageon and Customer and those entered into with other
Comparable Purchasers, for the purpose of ensuring Customer is
receiving a "Most Favored Customer"
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pricing status with respect to Comparable Purchasers. This
evaluation shall be concluded by a certification from
Emageon's Chief Financial Officer of the findings of the
review and the review shall be subject to audit, by a mutually
agreed-to independent third party under a duty of
confidentiality to Emageon only to report compliance or
noncompliance to Customer at Customer's expense; provided,
however, that if as a result of such review it is determined
that Emageon has not honored the terms of this provision,
Emageon shall reimburse Customer for the costs of such audit.
Comparable Purchasers shall exclude * * *. This clause will
only apply to newly executed Order Addendums and will not be
applied retroactively to signed or existing revenue producing
contracts. Further, the obligation for Most Favored Customer
pricing shall cease upon the earlier of (a) June 30, 2006; (b)
the date Ascension Health or one of its Affiliates has been
found to have materially breached or defaulted in the
performance of any of its obligations under the Agreement; (c)
the termination of the Agreement; or (d) the termination of
the Exclusive Agreement clause (Section 15.3).
6. RECORDS.
6.1. Customer shall keep reasonably accurate records for a period
of one (1) year after the close of each calendar year during
the term of this Agreement sufficient to allow Emageon to
determine the amount of fees to be paid by Customer to
Emageon. Such records shall be open to inspection, upon five
(5) days prior notice to Customer, by Emageon or an
independent certified public accountant retained by Emageon at
its own expense; provided, however, that if as a result of
such audit it is determined that Customer has underpaid fees
by an amount greater than ten percent (10%), Customer shall
reimburse Emageon for the costs of such audit. Emageon
reserves the right to access Customer's SYSTEM in order to
audit the SYSTEM and verify the number of Studies stored.
Emageon will not adversely effect the clinical operations of
the SYSTEM whenever it gains access to the SYSTEM. The
scheduling of all such access shall be mutually agreed upon.
7. PROPRIETARY INFORMATION.
7.1. Definitions. For purposes of this Agreement, (a) "Confidential
Information" means any data or information of a party that is
valuable to such party or its owner and is not generally known
by the public, other than Trade Secrets; (b) "Trade Secrets"
means any information of a party including, but not limited
to, technical or non-technical data, a formula, a pattern, a
compilation, a program, a device, a method, a technique, a
drawing, a process, financial data, financial plans, the
Software or any Third Party Software, product plans, or a list
of actual or potential customers or suppliers which (i)
derives economic value, actual or potential, from not being
generally known to, and not being readily ascertainable by
proper means by, other persons who obtain economic value from
its disclosure or use; and (ii) is the subject of efforts that
are reasonable under the circumstances to maintain its
secrecy; and (c) "Proprietary Information" means Confidential
Information and Trade Secrets.
7.2. Non-Disclosure. Each party acknowledges that during the term
of this Agreement, the other party may be providing certain of
its Proprietary Information to such party, including but not
limited to the SYSTEM, which will be maintained by Emageon,
and the DICOM images provided by Customer to Emageon. Each
party will take reasonable precautions necessary to safeguard
the confidentiality of the Proprietary Information of the
other party, including those taken by such party to protect
its own Proprietary Information. Without limiting the
foregoing, each party agrees that it shall not, without the
prior written consent of the other party, directly or
indirectly, copy, disclose, distribute, publish, reproduce,
decompile, reverse engineer, transfer or make use of the
Proprietary Information of the other party except in
connection with the rights granted under this Agreement. Nor
shall either party disclose the contents of this Agreement,
pricing in connection with this Agreement, or the content of
any Emageon proposal materials to any third parties except for
outside legal counsel and/or accountants; provided, however,
that should it become necessary to disclose said information
to a third party, the disclosing party shall notify the
non-disclosing party, in writing, in advance and the third
party shall execute the non-disclosing party's non-disclosure
agreement before the disclosing party discloses said
information. Emageon recognizes that relevant Proprietary
Information may be shared by and between Ascension Health and
Ascension Affiliates provided such individuals agree to be
bound by the terms of Non-Disclosure set forth in this
Section 7.
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7.3. Unauthorized Disclosure. If an unauthorized use or disclosure
occurs, such party will immediately notify the other party and
assist the other party in recovering its Proprietary
Information and preventing its subsequent unauthorized use or
dissemination. However, the restrictions of this Agreement on
use and disclosure of Proprietary Information shall not apply
to information that:
(a) is in the possession or control of the non-disclosing
party at the time of its disclosure hereunder;
(b) is, or becomes, publicly known through no wrongful
act of non-disclosing party;
(c) is received by non-disclosing party from a third
party free to disclose it without obligation to the
disclosing party; or
(d) is independently developed by non-disclosing party
without the use of any Proprietary Information.
7.4. Term of Non-Disclosure. The restrictions set forth in this
Section 7 shall continue (i) with respect to the Trade Secrets
for as long as such information continues to be a Trade Secret
under applicable law, and (ii) with respect to Confidential
Information, during the term of this Agreement and for a
period of five (5) years from the date of its expiration or
termination.
7.5. Use of Customer Proprietary Information. Customer grants to
Emageon the non-exclusive right to use Customer's Proprietary
Information (including any data) obtained under this Agreement
for Emageon's internal purposes in order to perform the
Services and as otherwise set forth in this Agreement. Nothing
in this paragraph shall limit Emageon's obligations under this
Section 7 in any way.
7.6. Use of Enhancements, Discoveries, Processes. All customized or
custom computer software programs developed by Emageon at
Customer's request, and all materials furnished by Emageon in
conjunction with such programs, shall be the exclusive
property of Emageon, but Ascension Health and Ascension
Affiliates shall receive a license to use, copy and modify
them without any additional or incremental charges for their
internal purposes.
7.7. Confidential Information shall not include any protected
health information. Such information shall only be governed by
the terms of Exhibit D, the Business Associate Agreement
8. CUSTOMER INDEMNIFICATION.
8.1. In addition to the other obligations of indemnification stated
herein, Customer will indemnify and hold Emageon and its
affiliates, officers, directors, employees, agents and
representatives harmless from and against all damages, costs,
expenses, and liabilities, including without limitation,
reasonable attorneys' fees and expenses, from any third party
claim of any kind against Emageon arising, in whole or in
part, from (a) Customer's negligence or willful misconduct
arising under this Agreement and (b) Customer's use of the
data accessed through the SYSTEM.
9. EMAGEON WARRANTIES AND INDEMNIFICATION.
9.1. Emageon grants Customer the limited, nontransferable warranty
that the Services will be (i) performed in a workman-like
manner in accordance with normally accepted industry
standards, and (ii) performed by qualified personnel. If
Emageon fails to satisfy the foregoing warranty, then Customer
will notify Emageon in writing of such failure as soon as
reasonably practicable but in no event later than * * *
after completion of the Services.
9.2. Emageon represents and warrants that it either owns or has the
right to grant the rights set forth herein, and that the
Emageon Software does not infringe any third party copyright,
patents, trade secrets, or other proprietary rights,
enforceable in the United States. Emageon's sole liability for
any breach of the foregoing representations will be to
indemnify, defend, and hold Customer and its Eligible User
Population harmless from and against any and all losses,
damages, penalties, costs and expenses, including legal and
accounting fees, and to pay any final judgment or settlement
of any claim incurred or suffered by Customer which results
from or arises out of any claim or liability that the Emageon
Software infringes any third party copyright, patent, or other
proprietary rights enforceable in the U.S. or misappropriates
any third party trade secret enforceable in the U.S.
(individually, an "Indemnified
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Claim" and collectively, the "Indemnified Claims"). The
Indemnification set forth in this Section is contingent upon
Customer promptly notifying Emageon of an Indemnified Claim,
Emageon having the sole authority to defend or settle the
Indemnified Claim, and receiving the reasonable assistance of
Customer in connection therewith at Emageon's expense.
Notwithstanding the foregoing, Emageon will have no
indemnification obligation hereunder with respect to any claim
based on (i) use of the Emageon Software except in accordance
with this Agreement and Emageon's written instructions, (ii)
the combination of the Emageon Software with any other
software or hardware, unless as directed or approved by
Emageon (iii) modifications of the Emageon Software not made
by Emageon, or (iv) Customer's failure to implement changes
recommended by Emageon, that do not materially alter the
functionality or degrade performance of the SYSTEM, if the
infringement would have been avoided in the absence of such
combination, modifications or failure to implement recommended
changes. If the Emageon Software is finally determined by a
court of competent jurisdiction to constitute an infringement
of any third party patent, copyright or other proprietary
right enforceable in the U.S. or a misappropriation of a third
party trade secret and Customer's use of the SYSTEM is
enjoined, Emageon will either (i) procure the right for
Customer to continue to use the SYSTEM as contemplated
hereunder, or (ii) replace or modify the SYSTEM with a version
thereof that is not infringing and that does not materially
alter the functionality or degrade the performance of the
System. If a court of competent jurisdiction determines that
none of these alternatives is reasonably available, Customer
agrees that Emageon may terminate Customer's and its
employees' access to the SYSTEM in accordance with the
conversion and termination provisions as set forth by such
court. In the event of such termination, Emageon agrees to
refund License fees based on * * * and all other fees pre-paid
by Customer and unearned by Emageon on the date of final
determination by a court of competent jurisdiction of such
infringement. This Section states the entire liability of
Emageon with respect to infringement or misappropriation of
any third party Intellectual Property Rights by the Emageon
Software and Emageon will have no additional liability with
respect to any alleged or proven infringement. Emageon will
pass to Customer all appropriate warranties and
indemnification provisions from third-party suppliers.
9.3. In addition to the other obligations of indemnification stated
herein, Emageon will indemnify and hold Customer and its
affiliates, officers, directors, employees, agents and
representatives harmless from and against all damages, costs,
expenses, and liabilities, including without limitation,
reasonable attorneys' fees and expenses, from any third party
claim of any kind against Customer arising, in whole or in
part, from (a) Emageon's negligence or willful misconduct
arising under this Agreement and (b) Emageon's use of the data
accessed through the SYSTEM.
9.4. Emageon shall provide, at no charge to Customer, Customer with
updates or new versions to make the Software comply with: (i)
all generally applicable federally mandated regulatory changes
and state mandated changes; (ii) changes to the DICOM
standards or substitute standards generally adopted or
employed by the health care industry; (iii) changes to the HL7
standards or substitute standards generally adopted or
employed in the health care industry; and (iv) the general
adoption in the healthcare industry of any standard relating
to the creation, storage, transmission, or viewing of health
care images or data supported by the SYSTEM.
9.5. Emageon represents and warrants that the Software will be the
latest available releases, and that future releases and
engineering changes to the Software will not degrade
performance or remove functionality. Emageon warrants that the
SYSTEM will meet or exceed its published specifications.
9.6. Emageon represents and warrants that the Software as delivered
to Customer neither contains nor shall contain any "Disabling
Code" or "Unauthorized Code." As used in this paragraph the
term "Disabling Code" means any code, routine, or procedure
that has the effect of terminating or disabling execution of
the Software. As used in this paragraph, the term
"Unauthorized Code" means any virus, Trojan horse, worm, or
other code, routine, or procedure that (i) permits
unauthorized access to data, software, or systems; or (ii)
disables, erases, or otherwise damages software, hardware, or
data.
9.7. Emageon warrants and represents that the occurrence in or use
by the SYSTEM of any dates, including, without limitation, any
date with a year specified as "99" or "00," regardless of
other meanings attached to these values, and any date before,
on, or after January 1, 2000 ("Millenial Dates") will not
adversely affect its performance with respect to
date-dependent data, computations,
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output, or other functions (including, without limitation,
calculating, comparing, and sequencing) and that the SYSTEM
will create, store, process, and output information related to
or including Millenial Dates without errors or omissions and
at no additional cost to Customer. At Customer's request,
Emageon will provide sufficient evidence to demonstrate the
adequate testing of the SYSTEM to meet the foregoing
requirements.
9.8. Emageon agrees to work with each Facility to establish a
mutually agreeable performance expectation for the speed of
accessing and viewing the first image on the client
workstation monitor ("Response Time Service Level"). In each
Order Addendum, the Facility and Emageon shall mutually agree
to criteria for monitoring and measuring the Response Time
Service Level as is appropriate for such Facility's
implementation. The variables for this speed shall include but
are not limited to workstation capabilities and LAN
specifications set forth in the respective Order Addendum. In
the event that Customer workstation performance falls below
the performance expectation, in accordance with the Order
Addendum, Emageon will evaluate the cause of such diminished
performance and, at its cost, implement necessary modification
to allow Customer to achieve the mutually agreed upon
performance level. If Customer wishes to implement changes to
the Site Survey Specifications as set forth in the Order
Addendum, then Emageon shall provide new workstation and LAN
specifications to Customer and continue to honor the Response
Time Service Level.
9.8.1. Unless otherwise specified in the Order Addendum, the
Diagnostic Viewstation shall display the first image
of a fully processed, locally available, unread study
request within * * *. Provided, however, the
recommended specifications listed in the table below
are in place.
---------------------------------------------------------------------------------
LOCAL AREA NETWORK RECOMMENDED
---------------------------------------------------------------------------------
Within PACS Computer Room 100BaseT Switched
Two 1000BaseT multi-media fiber modules
with SC connection for Archive
---------------------------------------------------------------------------------
Backbone between PACS Computer Room 1000BaseT
and Radiology Department
---------------------------------------------------------------------------------
Modalities and CR Devices 10BaseT or 100BaseT Switched
---------------------------------------------------------------------------------
Diagnostic Viewstations 1000BaseT Switched
---------------------------------------------------------------------------------
Non Diagnostic and Web Viewing 100BaseT Switched
---------------------------------------------------------------------------------
Secure remote LAN access VPN for remote diagnostic users
---------------------------------------------------------------------------------
Note: Diagnostic performance criteria above assumes compliance
with the recommended specifications for Diagnostic
Viewstation.
10. CUSTOMER WARRANTY. Customer represents and warrants that: (i) Customer
is the owner, valid licensee, or authorized user of all data provided
to the SYSTEM and/or Emageon under this Agreement from whatever source;
and (ii) the use of Customer's data by Emageon as set forth in this
Agreement will not infringe the Intellectual Property Rights of any
third party or constitute a misappropriation of any third party trade
secrets, or constitute a defamation, invasion of privacy, or violation
of any right of publicity or other third party right. Customer will
indemnify and hold Emageon harmless from and against any and all
losses, damages, penalties, costs and expenses, including legal and
accounting fees, incurred or suffered by Emageon which result from or
arise out of any claim or liability arising as a result of a breach of
this Section.
11. DISCLAIMER OF WARRANTIES. EXCEPT AS EXPRESSLY INDICATED IN THIS
AGREEMENT, NEITHER PARTY MAKES ANY EXPRESS OR IMPLIED WARRANTIES,
CONDITIONS OR REPRESENTATIONS TO THE OTHER PARTY WITH RESPECT TO THE
EMAGEON SOFTWARE, THE THIRD PARTY SOFTWARE, THE SYSTEM, THE SERVICES
PROVIDED HEREUNDER, THE DATA, OR OTHERWISE, WHETHER ORAL OR WRITTEN,
EXPRESS, IMPLIED OR STATUTORY. WITHOUT LIMITING THE FOREGOING, ANY
IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, THE IMPLIED WARRANTY
OR CONDITION OF FITNESS FOR A PARTICULAR PURPOSE, AND THE IMPLIED
WARRANTY OF NONINFRINGEMENT ARE EXPRESSLY EXCLUDED AND DISCLAIMED.
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12. TERM AND TERMINATION.
12.1. The term of this Agreement shall commence on the Effective
Date and continue in effect for a period which shall expire
with the expiration of the last effective Order Addendum
executed hereunder. Each Order Addendum shall have an initial
term of sixty (60) months ("Order Addendum Initial Term") and
shall automatically renew for additional ninety (90) day
successive terms or of a length as agreed upon in writing by
both parties (each a "Renewal Term"), unless either party
provides written notice to the other party at least ninety
(90) days prior to the end of the then-current term of its
intent not to renew the term of such Order Addendum.
12.2. In the event that either party hereto materially breaches or
defaults in the performance of any of its duties or
obligations under the Agreement and does not substantially
cure such breach or default within thirty (30) days after
being given written notice specifying the breach or default,
then the non-breaching/defaulting party may, by giving written
notice thereof to the breaching/defaulting party, terminate
this Agreement as of a date specified in such notice of
termination which in no event shall exceed one hundred and
eighty (180) days after the notice is given. In the event that
Emageon terminates this Agreement or an Order Addendum due to
a Customer's material breach or default, or Ascension
terminates this Agreement or a Customer terminates its Order
Addendum for any reason other than Emageon's material breach
or default, all remaining but unpaid fees relating to such
terminated Order Addendum shall accelerate and become due and
payable within thirty (30) days of termination. If the
Agreement is terminated as a result of Emageon's breach, any
fees paid by Customer for products and services at the
individual Facility impacted by such breach but unearned by
Emageon should be refunded retroactively to the date of
Emageon's breach. This shall also apply to unearned License
fees paid by Customer for use of the Software at the
individual Facility impacted by such breach based on * * *.
12.3. Upon expiration of this Agreement or in the event of
termination of this Agreement by Customer for cause, Emageon
shall provide Customer one (1) year, or as mutually agreed by
both parties (the "Conversion Period"), Software Support and
Maintenance and other applicable Total Accountability Services
for the purpose of converting to a new system. After such
time, Emageon shall no longer have any obligation to provide
such support. During the Conversion Period, Emageon's support
fees shall be billed at the rate charged during the term
immediately prior to the expiration or termination of this
Agreement. Should Customer have terminated this Agreement
without cause or Emageon terminates the agreement for cause,
the aforementioned fees during the conversion period will be
increased by fifteen (15%) percent.
12.4. Upon expiration or termination of this Agreement, Emageon will
provide, at no charge to Customer, Customer's data on the
media on which the data were stored during the term of this
Agreement. If other transfer of image archive data format is
desired, Emageon will provide documented software programs
that will migrate image files from the SYSTEM to removable
media. The data will be stored in DICOM Part 10 files,
according to the DICOM 3.0 standard, in uncompressed or
compressed format or the then current DICOM standard format or
replacement thereto. Any other data migration or conversion
requested by Customer will be performed under a separate
agreement and will involve additional charges. Emageon
services, including telephone support, associated with
Customer data migration will be charged at the Professional
Service Rates.
12.5. Termination of this Agreement by either party pursuant to the
provisions of this Section 12 shall terminate each party's
obligations under this Agreement except for the provisions of
Sections 1 and 5-12, all of which shall survive termination of
this Agreement.
13. LIMITED LIABILITY.
13.1. BOTH PARTIES AGREE THAT THE OTHER PARTY AND ITS AFFILIATES,
OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS,
LICENSORS, OR REPRESENTATIVES WILL NOT BE LIABLE FOR ANY
INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY OR CONSEQUENTIAL
DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES OR COSTS
INCURRED AS A RESULT OF LOSS OF TIME, LOSS OF SAVINGS, LOSS OF
DATA, LOSS OF PROFITS, OR LOSS OF GOODWILL, WHETHER
FORESEEABLE OR UNFORESEEABLE, THAT
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MAY ARISE OUT OF OR IN CONNECTION WITH THIS AGREEMENT,
INCLUDING, BUT NOT LIMITED TO, DAMAGES OR COSTS RESULTING FROM
THE USE OR INABILITY TO USE THE SYSTEM OR SERVICES, EVEN IF
SUCH PARTY HAS BEEN NOTIFIED OF THE POSSIBILITY OR LIKELIHOOD
OF SUCH DAMAGES OR COSTS OCCURRING, AND WHETHER SUCH LIABILITY
IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY,
PRODUCTS LIABILITY OR OTHERWISE.
13.2. IN NO EVENT WILL THE COLLECTIVE LIABILITY OF EMAGEON AND
EMAGEON'S AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES,
SHAREHOLDERS, AGENTS, LICENSORS OR REPRESENTATIVES FOR ANY
DAMAGES INCURRED BY CUSTOMER EVER EXCEED THE FEES PAID BY
CUSTOMER TO EMAGEON UNDER THIS AGREEMENT DURING THE * * *
PRIOR TO THE TIME AT WHICH THE DAMAGES AROSE REGARDLESS OF THE
FORM OF ACTION, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE,
STRICT LIABILITY, PRODUCTS LIABILITY OR OTHERWISE EXCLUDING
SUCH ACTIONS ARISING FROM EMAGEON'S INDEMNIFICATION
OBLIGATIONS, GROSS NEGLIGENCE OR THE INTENTIONAL MISCONDUCT OF
EMAGEON, ITS EMPLOYEES OR AGENTS.
13.3. THE FOREGOING LIMITATION OF LIABILITY AND LIMITATION OF
REMEDIES CONTAINED IN SECTIONS 13.1 AND 13.2 SHALL BE
INAPPLICABLE TO DAMAGE RESULTING FROM THE NEGLIGENCE OR
INTENTIONAL MALFEASANCE OF EMAGEON, ITS DIRECTORS, OFFICERS,
EMPLOYEES, AGENTS, AND SUBCONTRACTORS.
14. NOTICES.
14.1. Any notice, approval, request, authorization, direction or
other communication under this Agreement shall be given in
writing and shall be deemed to have been delivered and given
for all purposes (i) on the delivery date if delivered
personally to the party to whom the same is directed; (ii) one
business day after deposit with a commercial overnight
carrier, with written verification of receipt, or (iii) five
business days after the mailing date whether or not actually
received, if sent by U.S. certified mail, return receipt
requested postage and charges pre-paid or any other means of
rapid mail delivery for which the receipt is available, to the
address of the party set forth below:
CUSTOMER: EMAGEON:
Ascension Health Emageon UV, Inc.
4600 Edmundson Road 1200 Corporate Drive, Suite 400
St. Louis MO. 63134 Birmingham, AL 35242
Attn: General Counsel Attn: Chief Financial Officer
15. MISCELLANEOUS.
15.1. Force Majeure. In the event that either party's performance
(other than the payment of fees) is delayed, prevented,
obstructed or inhibited because of any act of nature, fire,
casualty, delay or disruption in transportation, flood, war,
strike, lockout, epidemic, destruction or shut-down of
facilities, shortage or curtailment, riot, insurrection,
governmental acts or directives, any full or partial failure
of any communications or computer network or any cause beyond
such party's reasonable control, the party's performance will
be excused and the time for the performance will be extended
for the period of delay or inability to perform resulting from
such occurrence. The occurrence of such event will not
constitute grounds for a declaration of default by either
Party.
15.2. Publicity. Ascension Health reserves the right to review and
approve any press release and/ or marketing materials Emageon
plans to issue regarding the execution of this Agreement or
written materials identifying Customer as a customer of
Emageon unless included in a listing of ten (10) or more
customers.
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15.3. Technical Advisory Councils. Emageon intends to implement
Domain specific Technical Advisory Councils by * * *. Examples
of domains include Radiology, Cardiology, and multi-vendor
Archives. These councils will be comprised of customer
representatives from selected users of Emageon products.
Ascension Health will be granted one seat on each Domain
Council for products which it has expressed interest.
15.4. Assignment. Neither party shall assign or transfer this
Agreement or any of its rights or obligations hereunder
without the prior written consent of the other, which consent
shall not be unreasonably withheld. This Agreement shall inure
to the benefit of and bind the parties' successors and
permitted assigns.
15.5. Waiver. The failure of either party to insist upon the
performance of any provision herein or to exercise any right
or privilege granted to it hereunder, will not be construed as
a waiver of such provision or any provisions herein, and the
same will continue in full force. The various rights and
remedies given to or reserved by either party herein or
allowed by law, are cumulative, and no delay or omission to
exercise any of its rights will be construed as a waiver of
any default or acquiescence, nor will any waiver of any breach
or any provision be considered a condonement of any continuing
or subsequent breach of the same provision.
15.6. Governing Law. The Agreement and the Services will be governed
by and interpreted in accordance with the internal laws of the
state of Missouri, excluding its conflict of law rules.
15.7. Interpretation. This Agreement sets forth the entire agreement
between the parties relating to the subject matter hereof, and
supersedes any and all prior agreements of the parties with
respect to the subject matter hereof.
15.8. Modification and Execution. No change, amendment or
modification of any provision of this Agreement shall be valid
unless set forth in a written instrument signed by the duly
authorized representatives of both parties. This Agreement may
be executed in counterparts, each of which shall be deemed an
original and all which together shall constitute one and the
same document. To the extent there is any conflict between
terms contained in the main body of this Agreement and the
exhibits to this Agreement, the terms contained in the
exhibits to this Agreement shall control. If any provision of
this Agreement shall be held to be illegal, invalid or
unenforceable, such illegality, invalidity or unenforceability
shall apply only to such provision and shall not in any manner
affect or render illegal, invalid or unenforceable any other
provision of this Agreement, and that provision and this
Agreement generally shall be reformed, construed and enforced
so as to most nearly give lawful effect to the intent of the
parties as expressed in this Agreement.
15.9. Regulatory Compliance. Emageon shall comply with the
provisions of the Administrative Simplification section of the
Health Insurance Portability and Accountability Act of 1996,
Public Law 104-91 ("HIPAA"), and the applicable requirements
of any regulations promulgated thereunder including without
limitation the federal privacy regulations as contained in 45
CFR Parts 160 and 164 (the "Federal Privacy Regulations"), as
and when such laws and regulations apply to Emageon in the
capacity of Business Associate of Customer. Such provisions
are set forth in the Emageon, Inc. Business Associate
Agreement attached hereto as Exhibit D.
15.10. Access to Books and Records. To the extent that Section 952 of
the Omnibus Reconciliation Act of 1980 ("Act") and the
regulations promulgated thereunder are applicable to this
Agreement, Emageon and the organizations related to it, if
any, performing any of the duties pursuant to this Agreement
valued at ten thousand dollars ($10,000.00) or more in any
twelve (12)-month period shall, until four (4) years after the
furnishing of Services pursuant to this Agreement, comply with
requests by the Comptroller General, the Secretary of Health
and Human Services, and their duly authorized representatives
for access (in accordance with Section 952 of the Act) to any
contract or agreement between Emageon and Customer for
Services and to any contract or agreement between Emageon and
such related organizations, as well as the books, documents,
and records of Emageon and its related organizations, if any,
which are necessary to verify the cost of the Services
provided.
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15.11. Excluded Provider. Emageon hereby represents, and warrants
that it is not an excluded provider under the
Medicare/Medicaid programs ("Excluded Provider"). Furthermore,
in the event that Emageon is ever deemed to be an Excluded
Provider, Customer may terminate any and all payment
obligations to Emageon without resulting in a breach of the
Agreement and may terminate the Agreement without liability or
payment to Emageon. Any licenses granted hereunder to the
SYSTEM shall automatically convert to perpetual, royalty-free
licenses to use, copy, and modify such property for Customer's
internal use upon termination of the Agreement pursuant to
this Section 15.11. Emageon reserves the right of Assignment
as set forth in Section 15.4 so that its products and related
services may be transferred to a provider that is not
classified as Excluded.
15.12. Source Code Escrow. Within thirty (30) days after the
effective date of this Agreement, Emageon shall enter into a
software escrow agreement with the software escrow agent of
its choosing under terms and conditions to be approved in
advance by Ascension. Ascension shall be listed as a
beneficiary under the software escrow agreement. Within thirty
(30) days after each delivery of Software to Ascension
hereunder, Emageon shall provide to the software escrow agent
the "Deposit Materials" consisting of the source code for the
version of the Emageon Software delivered to Customer (the
"Source Code"), and all documentation necessary for the use
thereof. Emageon shall maintain all such Deposit Materials
with the software escrow agent in its most current version and
will deliver any revised Deposit Materials to the source code
escrow agent not later than thirty (30) business days after
any upgrade, version release, or any other change is effected
by Emageon. Customer shall be entitled to receive the Deposit
Materials upon the occurrence of one or more of the following
Escrow Events: (i) all or any material part of the Source Code
is generally made available by Emageon, with or without
additional cost, to other users of the Source Code; (ii)
Emageon ceases, for any reason, to do business; (iii) Emageon
is in default under this Agreement in whole or in part because
of its failure to maintain, or otherwise comply with its
obligations with respect to, the Deposit Materials; (iv) the
sale of all or substantially all of the assets of Emageon; (v)
bankruptcy, receivership, insolvency, reorganization,
dissolution, liquidation, or similar proceedings are
instituted by or against Emageon or all or any substantial
part of its property under any Federal or State law; or (vi)
other events, if any, defined in the source code escrow
agreement which permit the release of the Deposit Materials.
Upon occurrence of one or more of the foregoing Escrow Events,
Customer shall receive a perpetual, fully paid-up,
non-exclusive license to use and improve the Deposit
Materials, including the Source Code and documentation
therefore.
15.13. * * *
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their duly authorized representatives and made effective as of the Effective
Date.
ACCEPTED AND AGREED TO: ACCEPTED AND AGREED TO:
Emageon: Customer:
EMAGEON UV, INC. Ascension Health
By: /s/ W. Randall Pittman By: /s/ Anthony R. Tersigni
---------------------- --------------------------------------
Name: W. Randall Pittman Name: Anthony R. Tersigni
-------------------- ------------------------------------
Its: CFO Its: Chief Operating Officer & Interim CEO
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EXHIBITS
A. Emageon Archive and Distribution System Implementation Services
B. Emageon Support and Services
C. Term and Fees
C.1 Terms and Fees - Detail
D. Business Associate Agreement
E. Emageon, Inc. Corporate Travel Guidelines
F. Project Acceptance Process
G. Adoption Success Management Services
H. Emageon PACS Administrator Services
I. Order Addendum
J. Professional Services Rates
K. Clinical Information Systems Vendors
EMAGEON ENTERPRISE AGREEMENT 03.25.04 PAGE 17 OF 59
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EXHIBIT A
EMAGEON ARCHIVE AND DISTRIBUTION SYSTEM
IMPLEMENTATION SERVICES
PROJECT MANAGEMENT
Joint Responsibilities
Emageon and Customer are jointly responsible for the management of the project
and for providing the necessary resources to the project. To be effective in
achieving these objectives, the project management team will establish:
o An agreed-upon baseline for scope, budget and o An approach for formally accepting project
schedule deliverables
o A process for monitoring progress o A definition of what constitutes project
completion
o A communication protocol
o Roles and responsibilities (Customer and Emageon)
o An approach for dealing with issues
o An approach for tracking and mitigating risk
o A change control procedure
o Training tools provided
The following table provides a high level overview of the major and minor
milestones that are typically accomplished during an implementation upon
execution of an Order Addendum.
PHASE MILESTONES
------------------------------- ----------------------------------------------------
* * * * * *
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Adoption Communication Planning o Communication and training plan - developed and
initiated
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* * * * * *
------------------------------- ----------------------------------------------------
* * * * * *
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Emageon Responsibility
Emageon will coordinate and assume lead responsibility for the installation and
integration of the SYSTEM. Emageon will lead and work closely with Customer to
accomplish the listed activities below:
--------------------------------- ---------------------------------------------------
* * * * * *
--------------------------------- ---------------------------------------------------
Workflow And Operating Procedures Documentation Of System Configuration.
Development Of Backup Strategy.
Documentation Of Administrator And User Procedures.
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--------------------------------- ---------------------------------------------------
System Installation Coordination Of System Installation Activities.
Connection Of Remote DICOM Devices.
Installation Of System.
--------------------------------- ---------------------------------------------------
Functional Testing Functional Testing Of System Components.
--------------------------------- ---------------------------------------------------
Administrator and End User Train Administrator(s) On Routine Operation,
Training Maintenance, And Support Of System.
--------------------------------- ---------------------------------------------------
* * * * * *
--------------------------------- ---------------------------------------------------
Emageon will be the primary point of contact (POC) for all vendors providing
Emageon-supplied components and services. Customer will be POC for vendors
providing Customer-supplied components and services.
Customer Responsibilities (Details in Table A-4 - Site Readiness Survey)
o Provide Available Personnel and Facilities According To Mutually Agreed
Upon Installation And Implementation Schedule
o Provide Necessary Working / Office Space
o Provide Access To Facilities
o Provide Necessary Communications Support - Telephone, Internet Access,
Etc
o Insure Customer-Provided Facilities, Information Systems and Modalities
are prepared, maintained and operational for integration into the
SYSTEM
o Review Project Products Within A Given Time Frame
o Participate In Technical Meetings
o Deliver Information or Products To The Project
o Provide a Dedicated System Administrator Relieved of Duties Not Related
To The Implementation of The Emageon Solution
Customer will make personnel and facilities available according to a mutually
agreed upon schedule. In the event that activities must be rescheduled or
extended due to Customer's non-compliance with the agreed upon schedule,
Customer will bear the cost of rescheduling according to the then-current
professional service rates as specified in Exhibit J.
INSTALLATION ACCEPTANCE
The SYSTEM shall be deemed installed and accepted in accordance with Section
1.13 of this Agreement.
TRAINING
As applicable to the SYSTEM, * * *. As applicable to the SYSTEM, Emageon will
provide training for System Administrators, Diagnosticians, Technologists,
Physicians and applicable clinical staff. Emageon will provide refresher
training, as Customer deems necessary, with major upgrades to the SYSTEM.
System Administrator Training
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The system administrator(s) will receive * * * training on system components and
procedures. This training will help ensure that the administrator(s) are able to
perform routine administration tasks and serve as a knowledgeable point of
contact for Emageon support analysts and technicians. In addition, Emageon will
provide coaching support during the transition to service.
Diagnostician Training
Each diagnostician will receive training * * * on the use of the digital imaging
viewing technology deployed in the facility as part of the SYSTEM.
Technologist
For the Technologist(s) and other end users in the facility, Emageon shall
employ * * *.
Physician & Clinical Staff Training
A * * * shall be employed for training physician and clinical staff on the use
of digital imaging viewing technology deployed in the facility as part of the
SYSTEM.
TRANSITION TO SERVICE
Emageon will provide trained personnel to assist with the Transition to Service
of the SYSTEM. The SYSTEM will be deemed to have Transitioned to Service when
the agreed to tasks are complete.
Customer will make personnel and facilities available according to a mutually
agreed upon schedule. In the event that activities must be rescheduled or
extended due to Customer's non-compliance with the agreed upon schedule,
Customer will bear the cost of rescheduling according to the then-current
professional service rates.
TRAVEL AND LIVING EXPENSES
Customer shall pay or reimburse Emageon for any out-of-pocket expenses,
including, without limitation, travel and travel-related expenses in accordance
with Sections 5.3, 5.4, 5.5 and 5.8 of this Agreement.
CHANGE ORDER PROCESS
In the event there is a need to modify the scope of this Agreement, a change
order process will be utilized. All change orders, which will be detailed in
writing and typically include SYSTEM and Service changes, will define the scope
of such changes which are outside this Agreement. The Emageon POC and Customer
POC will work jointly in creation of the change order. Emageon will not process
nor begin such work until written Customer approval is received. All payment
terms with respect to the change order requests will be defined in the change
order document.
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EXHIBIT B
EMAGEON SUPPORT AND SERVICE
Emageon Services and related customer responsibilities are detailed below by
function. Customer shall perform the duties as assigned below.
GENERAL
Customer has full responsibility for hardware, software, and services that are
outside the scope of this Agreement. Customer must operate the equipment on an
ongoing basis, with software that has been approved by Emageon. Customer shall
not install any software or hardware on the SYSTEM without receiving prior
Emageon approval. Customer shall bear all expenses associated with Emageon
service in the event a SYSTEM issue is attributed to Customer installing
non-conforming hardware or software.
Emageon shall not be responsible for support of the SYSTEM if Customer modifies
the SYSTEM without Emageon's authorization.
CUSTOMER RESPONSIBILITIES
Customer shall be responsible for day-to-day operations of the SYSTEM, including
the equipment, preventative maintenance, operating systems and software
applications, and shall continue to provide first line support for the SYSTEM,
as set forth in the Agreement. Customer shall provide the necessary personnel to
meet its obligations under this section, with at a minimum, a dedicated,
full-time SYSTEM Administrator with the skills and experiences necessary to
perform the functions outlined below:
SYSTEM Administration
o Points of Contact To Emageon On SYSTEM o Perform Daily, Weekly, and Monthly Routine
Related Issues Maintenance Procedures as Required
o Day to Day Operations of SYSTEM o Perform Backup / Disaster Recovery Procedures,
Including Off-Site Storage
o Monitor Image Workflow and Procedures
o Perform File System Checks
o Archiving / Routing / Pre-Fetching
o Manage / Size / Tune Storage Parameters
o Correcting Broken Studies
o Run Performance Tools
o Editing Patient Demographics
o Manage System Utilities / Generate Reports
o Monitoring HIS / RIS Interface
o Monitor and Insure SYSTEM Security Procedures
o Monitor / Track System Performance are Being Followed
o Conduct Component / System Training o Maintain Site and Environment per Specifications
o SYSTEM Troubleshooting / Attempt Repair o Coordinate New Modality Integration (Post
System Acceptance)
o Assisting With Upgrades and Remote Repairs
o Document Issues Identified by End Users
Network Administration
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o Configure and Manage Network Settings
o Monitor / Analyze / Tune Network Infrastructure
Preventative Maintenance
Customer will perform daily and monthly routine maintenance procedures and
maintain the associated logbook of training provided at the time of
installation. These procedures include verification of automated daily backups
of the database and hierarchical storage management file structure and removal
of backup/disaster recovery copies of tapes to remote sites.
Customer will provide a location for off-site, waterproof, and fireproof storage
of back-ups and disaster recovery copies of data, databases, protocols and user
preferences.
EMAGEON SYSTEM AVAILABILITY
Guaranteed Emageon SYSTEM Availability
1. Emageon SYSTEM Availability is defined as the ability to archive,
distribute and view medical image data and interface with other
information systems. The Guaranteed Emageon System Availability will
become effective after the Emageon SYSTEM has been accepted at each
Facility as provided for in the Implementation Plan.
2. Emageon SYSTEM Availability is measured * * *, commencing with the
date of SYSTEM Acceptance and ending * * *.
3. If the Emageon SYSTEM is unavailable for more than * * * then the
affected Facility shall receive a credit * * *, to be applied to * * *,
equal to * * *. If the Emageon SYSTEM is unavailable for more than
* * *, then the affected Facility shall receive a credit * * *, to be
applied to * * *, equal to * * *.
4. If the Emageon SYSTEM is unavailable for more than * * * during a
* * *, commencing from the SYSTEM Acceptance and measured thereafter
* * *, then such Facility may terminate the Agreement as it applies to
such Facility without penalty or additional charge ("Service Level
Failure Termination"). Further, if the Emageon SYSTEM is unavailable
for more than * * * during a * * *, commencing from the SYSTEM
Acceptance and measured thereafter * * *, then such Facility may
terminate the Agreement as it applies to such Facility without penalty
or additional charge ("Service Level Failure Termination").
5. The measurement for downtime will begin upon Customer providing notice
to Emageon of the SYSTEM unavailability, as required in this Exhibit B,
and will end upon the availability of the Emageon SYSTEM.
6. Scheduled maintenance and upgrades will not count as Emageon Software
downtime. Scheduled maintenance and upgrades will be scheduled at least
one week in advance and not exceed * * *. The foregoing limitations and
restrictions on scheduled maintenance and upgrades may be waived or
extended by mutual written agreement of Customer and Emageon.
7. Customer shall have full responsibility for Guaranteed Hardware
Availability. Hardware downtime will not count against Emageon Software
downtime unless such downtime was caused by the Emageon Software. Any
Hardware down time events, which cause the Emageon Software to fail,
will not count against non-scheduled Emageon Software downtime. In the
event a Hardware downtime occurs, thereby causing the Emageon Software
to fail, whether planned or not, all time, materials and expenses
involved with Emageon's support of such down time event, shall be
billed separately to Customer at Emageon's then current Professional
Service fees.
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8. Remedies provided for in this Exhibit are acknowledged and agreed to
serve as liquidated damages and not penalties.
Guaranteed Component Availability
1. Components are defined as equipment or software within the
SYSTEM that acquire, archive, distribute, and allow viewing of
medical image data (e.g. a DICOM Interface Box or a DICOM
Viewstation) and interface with other information systems. A
Component is unavailable if it cannot perform its design
function at rated capacity. The Guaranteed Component
Availability will become effective after the SYSTEM has been
accepted.
2. Component Availability is measured * * * assuming 365 days x
24 hours per day of operation each year.
3. Component downtime resulting in SYSTEM downtime will count
only toward the cumulative SYSTEM downtime.
4. If an Emageon Component is unavailable for * * *, then the
Facility shall receive a credit for such * * *, to be applied
to the subsequent * * * billings, equal to * * * of the * * *
Software Maintenance and Support Fee, for each unavailable
Component.
5. The measurement for Component downtime will begin upon
Emageon's receipt of notification, as required in this Exhibit
B, and will end upon the restoration of Component
Availability.
6. Scheduled maintenance and upgrades will not count as Component
downtime. These functions will be scheduled by mutual
agreement.
EMAGEON RESPONSIBILITY
Emageon will provide SYSTEM Updates to the SYSTEM during the term of this
Agreement. These updates will be scheduled in advance at a time agreed to be
mutually acceptable. Emageon will provide refresher training as Emageon deems
necessary for SYSTEM Updates.
Emageon will provide SYSTEM Upgrades. Such upgrades shall be designed and
delivered at Emageon's sole discretion. These upgrades will be scheduled in
advance at a time agreed to be mutually acceptable.
Emageon will act as primary point of contact for all third-party products
comprising the SYSTEM.
Computed Radiography Plates
CR Cassette Plates are consumable products. Emageon warrants that the CR
Cassette plates that are included in the original CR purchase will be free from
defects for a period of ninety days after Installation Acceptance.
EMAGEON SERVICE SUPPORT
The Customer Technical Points of Contact (as designated in the respective Order
Addendum), will be the primary contact for all Customer users to report problems
associated with the equipment. The Customer Technical Points of Contact shall
notify Emageon of the existence of the problem by telephone and the parties
shall mutually classify each problem with a severity level using the criteria
set forth below. All contact to Emageon should be through the Emageon Service
Support line at 1-866-Emageon, option 4. Upon entry of the service ticket and
classification of the severity level, Emageon shall communicate to the Technical
Points of
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Contact the ticket entry and classification. To the extent the Technical Points
of Contact, in their reasonable opinion, disputes the severity level assigned,
such Technical Points of Contact may contact Emageon to reclassify the incident
to a different severity level. If an incident is reclassified, due to such
reasonable dispute, by the Technical Points of Contact the response time
expectation for such incident shall be the earlier of: (i) the designated
response time for the original severity level classification from the time and
date of the original incident ticket; or (ii) the designated response time for
the new severity level classification from the time and date of notice of
reclassification by the Technical Points of Contact.
Emageon standard service support is between the hours of 8 AM - 5 PM Central
time, Monday-Friday, excluding major holidays. Major Holidays include New Years
Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day, the day after
Thanksgiving, Christmas Eve, Christmas Day and New Years Eve. Emergency
telephone support will be available after standard hours, on weekends and
holidays, seven days a week. Emergency response times will target * * * or less
from first call for Severity Level 4 - Critical Problems, and * * * or less from
first call for all other levels. * * *.
Emageon service engineers will provide remote support for the SYSTEM via
telephone and virtual private networks. The assigned service engineer will
provide timely and periodic feedback to Customer regarding the progress being
made in resolving the issue. As determined by Emageon, Emageon will provide
on-site support to resolve service issues. Once Emageon determines that on-site
support is required, Emageon will use its best efforts to place a qualified
individual on-site within * * *.
Upon notification, Emageon is responsible for any errors in the Emageon
Software. To the extent that an error is the result of third party Hardware or
Software, Emageon will use it's best efforts to resolve the issue. If the issue
is determined to be caused by the Customer, additional fees may apply at the
Professional Service Rates.
EMAGEON SUPPORT AND ESCALATION PROCEDURES
Support.
Upon receipt of notice from Customer, Emageon shall implement the
Support/Escalation Procedures described herein to ensure that appropriate
Emageon attention is given to Customer requests for support.
Severity Level 4 - Critical Problems.
The System or a significant component of the System is experiencing problems
which: (i) cause it to stop completely;(ii) materially degrade performance such
that Customer operations are in jeopardy;. Emageon shall provide telephone
response by a qualified technician within the Initial Response Time for Severity
Level 4 - Critical Problems as defined below. Within the Initial Response Time,
qualified personnel shall work to resolve the problem or condition. Emageon
personnel shall continue to work diligently until the problem is resolved.
Emageon shall demonstrate to Customer its good faith and diligent initiation and
prosecution of corrective measures. Emageon shall document the notification of
the problem, the severity level, the relevant circumstances and symptoms, and
the steps taken to diagnose the problem. Emageon shall take all necessary steps,
in its sole discretion, to resolve the problem promptly, and shall document such
corrective actions. If the problem condition is not resolved within the Target
Resolution Timeframe, Emageon shall dispatch expert on-site assistance to
Customer within * * *, as reasonably required. The response times applicable to
Severity Level 4 - Critical Problems is as follows:
Initial Response Time * * *
Target Resolution Timeframe * * *
Severity Level 3 - Serious or High Impact Problems.
The System is experiencing problems that cause a serious or high impact to the
SYSTEM. These problems are never enough to limit the use of the entire System,
meaning workarounds exists (If the Technical Points of
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Contact are not satisfied with the timeliness of a workaround, they may escalate
the incident to a Severity Level 4), but if the issue is not resolved within the
Targeted Resolution time, it would escalate to a Severity 4 - Critical Problem.
Emageon shall provide telephone response by a qualified technician within the
Initial Response Time for Severity Level 3 - Serious Problems as defined below.
Within the Initial Response Time, qualified personnel shall work to resolve the
problem or condition. Emageon personnel shall continue to work until the problem
is resolved. Emageon shall demonstrate to Customer its good faith and diligent
initiation and prosecution of corrective measures. Emageon shall document the
notification of the problem, the severity level, the relevant circumstances and
symptoms, and the steps taken to diagnose the problem. Emageon shall take all
necessary steps, in its sole discretion, to resolve the problem promptly, and
shall document such corrective actions. If the problem condition is not resolved
within the Target Resolution Timeframe, Emageon may, at its sole discretion,
dispatch expert on-site assistance to Customer. Mutually agreed upon temporary
fixes or workarounds, if available, will be implemented until a permanent
resolution is provided. The response times applicable to Severity Level 3 -
Serious Problems is as follows:
Initial Response Time * * *
Target Resolution Timeframe * * *
Severity Level 2 - Impaired or Medium Impact Problems.
The System is experiencing problems that cause minor applications, functions or
features to fail to operate. The problem is severe enough to limit the
usefulness of the affected part of the System, but does not hamper the rest of
the System's usefulness. Emageon shall provide telephone response by a qualified
technician within the Initial Response Time for Severity Level 2 - Impaired or
Medium Impact Problems as defined below. Mutually agreed upon temporary fixes or
workarounds, if available, will be implemented until a permanent resolution is
provided. If the problem has not been fully resolved within the Target
Resolution Time Frame as defined below, the issue will escalated to Severity 3 -
Serious Problem. The response time applicable to Severity Level 2 - Medium
Impact Problems is as follows:
Initial Response Time * * *
Target Resolution Timeframe * * *
Severity Level 1 - Minor or Low Impact Problems.
The System is experiencing problems that cause minor irritations but do not
inhibit the usefulness of the System or Products. Emageon shall evaluate and
prioritize the problem. Severity Level 1 -Low problems will be resolved as
mutually determined by both parties.
Conditions.
Conditions that apply to the problem resolution process are:
(a) All response times will be achieved at a rate of no less than * * * of
the time, as measured over no less than * * * period.
(b) Software products which are not produced by Emageon, but are components
of the System, will be handled in the same manner. However, time to
resolve a problem may vary depending upon the response by that third
party vendor. Under no circumstances will Emageon be responsible for
penalties or liabilities as a result of third party software failure.
(c) Customer may not revise any Initial Response Time or Target Resolution
Timeframes; however, if the problem results in the interruption of
Customer's business operations, Emageon will dispatch expert on-site
assistance to Customer at Customer's request, provided this is the most
expedient means to resolve the problem as determined by mutual
agreement of both Customer and Emageon.
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Emageon may revise the process and procedures by which it records, responds to
and resolves issues for Customer, provided such revisions provide general
improvements to either the speed or efficiency with which problems are
corrected.
ROUTINE MAINTENANCE
Emageon will perform remote SYSTEM verification tests on a regular basis to
monitor Hardware and Software performance and capacity.
SUPPORT AND SERVICE RATES OUTSIDE THE SCOPE OF THIS AGREEMENT
All service and support rates for services at Customer's request, and that are
outside the scope of this Agreement, will be billed at the Professional Services
Rates. In all cases, travel and lodging are billed separately.
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EXHIBIT C
TERM AND FEES
SOFTWARE, SUPPORT & MAINTENANCE AND PROFESSIONAL SERVICES
Ascension Health commits to execute site-specific Order Addendums covering the
committed minimum software, support and maintenance and professional services
fees indicated below no later than the following time periods shown below based
on the pricing and terms included in this Exhibit C (the periodic commitments
shown below are cumulative spending thresholds to be achieved by the indicated
dates taking into account spending by Customer during the entire term of the
Agreement prior to such date). In the event that Customer does not execute
Order Addendums such that the committed total fee for a particular date as
outlined below is not reached, Customer shall pay to Emageon, in accordance
with Section 5 of this Agreement, the difference between the actual dollar
amounts as set forth for Ultrastructure software fees, Ultravisual software
fees, and Implementation, modality integration and ASM fees in Table 1C which
amounts shall be held by Emageon as credits to be applied to future Customer
Order Addendums.
Table 1C: Ascension Commitment Table
* * * 6/30/06
------------- ----------- ----------- ----------- ----------- -----------
Total $25,066,000
------------- ----------- ----------- ----------- ----------- -----------
The pricing set forth in this Agreement is based upon a target of * * * average
annual study volume being achieved by June 30, 2006.
Sixty (60) days prior to the commitment dates listed above (see Table 1C);
Emageon will provide to Customer documentation that compares the total of the
Order Addendums that have been executed at that time to the commitment listed in
Table 1C. Customer may use the aforementioned sixty (60) day period to cure the
committed amounts described in Table 1C.
The study volume and fee commitments listed in Table 1C above are in part based
on the deployment of the Emageon SYSTEM in * * *. Terms and fees associated with
added or substituted Facilities will be computed based on the terms and fees
included in Exhibit C.1.
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Customer agrees to make payments to Emageon as described below upon execution of
each Order Addendum by the ministries.
EMAGEON SOFTWARE (ULTRASTRUCTURE AND ULTRAVISUAL):
* * *
EMAGEON SOFTWARE SUPPORT AND MAINTENANCE:
* * *
EMAGEON PROFESSIONAL SERVICES:
* * *
THIRD PARTY HARDWARE:
If the Customer acquires Hardware from Emageon, Customer shall pay Emageon for
the Hardware as follows:
o * * * of the Hardware fees shall be invoiced on the date the Hardware
is delivered, and the invoice shall be due and payable within ten (10)
business days.
o * * * of the Hardware fees shall be invoiced upon acceptance of the
Hardware by the Licensee, and the invoice shall be due and payable
within ten (10) business days.
o In the event of a partial Hardware shipment and upon mutual agreement
by the parties, Licensor may invoice Licensee on that partial shipment.
Provided, however, that the amount of this partial invoice shall be
exclusively for the items contained in that partial shipment.
o At the time Hardware is ordered by Emageon, Emageon shall provide
Ascension Health Treasury with a detailed listing of ordered Hardware.
Emageon shall provide Ascension Health Treasury with copies of all
Hardware invoices for each Facility and Emageon shall also provide, as
an attachment to the invoice, the details of what has been delivered to
the Facility.
o All Hardware, which is unpackaged, shall be considered "used hardware"
and shall not be returned unless such Hardware has failed Hardware
Installation Acceptance.
THIRD PARTY VENDED SERVICES:
o Shall be due monthly beginning at Installation Acceptance
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EXHIBIT C.1
TERM AND FEES - DETAILS
SPECIAL PRICING
The following Special Pricing shall apply to all Ascension Health Ministries
contracting under the Ascension and Emageon Enterprise Agreement.
EMAGEON ULTRASTRUCTURE (ARCHIVE AND DISTRIBUTION) SOFTWARE
Ultrastructure Software is currently priced on a "per study" and total volume
basis. The projected volumes as set forth in Attachment C of the individual
Facility supplement are used to calculate the Archive and Distribution Software
Fees for each Facility. The Ascension price reflects a per tier discount that
ranges from 27% - 64% of the Standard Price.
TABLE 1: ULTRASTRUCTURE - LICENSE FEE PRICING CALCULATION TABLE
AVERAGE ANNUAL STUDY VOLUME STANDARD PRICE ASCENSION PRICE
--------------------------- -------------- ---------------
10,000-14,999 $3.95 * * *
--------------------------- -------------- ---------------
15,000-19,999 $3.16 * * *
--------------------------- -------------- ---------------
20,000-24,999 $2.80 * * *
--------------------------- -------------- ---------------
25,000-32,499 $2.75 * * *
--------------------------- -------------- ---------------
32,500-39,999 $2.54 * * *
--------------------------- -------------- ---------------
40,000-47,499 $2.31 * * *
--------------------------- -------------- ---------------
47,500-54,999 $2.10 * * *
--------------------------- -------------- ---------------
55,000-64,999 $2.00 * * *
--------------------------- -------------- ---------------
65,000-74,999 $1.94 * * *
--------------------------- -------------- ---------------
75,000-89,999 $1.81 * * *
--------------------------- -------------- ---------------
90,000-104,999 $1.70 * * *
--------------------------- -------------- ---------------
105,000-174,999 $1.57 * * *
--------------------------- -------------- ---------------
175,000-264,999 $1.25 * * *
--------------------------- -------------- ---------------
265,000-374,999 $0.98 * * *
--------------------------- -------------- ---------------
375,000-504,999 $0.88 * * *
--------------------------- -------------- ---------------
505,000+ $0.76 * * *
--------------------------- -------------- ---------------
* * * ANNUAL MAINTENANCE FEES*
* To commence on the first anniversary of the date of Installation Acceptance.
ULTRASTRUCTURE SOFTWARE INCLUDES THE FOLLOWING:
1. Emageon Enterprise DICOM Storage & Archive Manager Software
2. Emageon Enterprise Integration Software (price included with HL7 &
MWL)
3. Emageon Intelligent Content Distribution Manager
4. Emageon High-Availability (HA) Software
5. Modality Worklist Manager
6. HL7 Reliable Delivery Manager (Reliable Store and Forward)
7. JPEG 2000 DICOM Transfer Syntax Support
8. Primary Image Server Software (runs on Emageon Linux Servers)
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TO CALCULATE THE UPFRONT PERPETUAL LICENSE FEE FOR THIS PURCHASE:
STEP 1: Divide total study volume over five years by 5 to get an average annual
study volume (Example: 1,000,000 total studies over 5 years / 5 years = 200,000
average studies per year)
STEP 2: Using the average annual study volume locate the appropriate tier in
Table 1 (Example: * * *)
STEP 3: Multiply the tier rate in Table 1 by the total number of studies over 5
years to give you the total Emageon Ultrastructure perpetual software license
cost (Example: * * *)
TO CALCULATE THE ANNUAL SUPPORT AND MAINTENANCE FEE FOR THIS PERPETUAL LICENSE:
The Annual Support and Maintenance fee shall be calculated by multiplying the
perpetual license fee by * * *. After the first year of Annual Support and
Maintenance Fees, the Annual Support and Maintenance fees may be increased to
reflect the annual percentage increase in the CPI.
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EMAGEON ENTERPRISE DICOM CACHE MANAGER SOFTWARE
Emageon Enterprise DICOM Cache Manager Software is currently priced on a "per
study" and total volume basis. The projected volumes as set forth in Attachment
C of the Order Addendum are used to calculate the Archive and Distribution
Software Fees for each Facility. The Ascension price reflects a per tier
discount that ranges from 36% - 64% of the Standard Price.
TABLE 1A: ULTRASTRUCTURE - DICOM CACHE MANAGER - LICENSE FEE PRICING
CALCULATION TABLE
AVERAGE ANNUAL STUDY VOLUME STANDARD PRICE ASCENSION PRICE
--------------------------- -------------- ---------------
10,000-14,999 $1.97 * * *
--------------------------- -------------- ---------------
15,000-19,999 $1.58 * * *
--------------------------- -------------- ---------------
20,000-24,999 $1.40 * * *
--------------------------- -------------- ---------------
25,000-32,499 $1.38 * * *
--------------------------- -------------- ---------------
32,500-39,999 $1.27 * * *
--------------------------- -------------- ---------------
40,000-47,499 $1.15 * * *
--------------------------- -------------- ---------------
47,500-54,999 $1.05 * * *
--------------------------- -------------- ---------------
55,000-64,999 $1.00 * * *
--------------------------- -------------- ---------------
65,000-74,999 $0.97 * * *
--------------------------- -------------- ---------------
75,000-89,999 $0.91 * * *
--------------------------- -------------- ---------------
90,000-104,999 $0.85 * * *
--------------------------- -------------- ---------------
105,000-174,999 $0.78 * * *
--------------------------- -------------- ---------------
175,000-264,999 $0.63 * * *
--------------------------- -------------- ---------------
265,000-374,999 $0.51 * * *
--------------------------- -------------- ---------------
375,000-504,999 $0.44 * * *
--------------------------- -------------- ---------------
505,000+ $0.38 * * *
--------------------------- -------------- ---------------
* * * ANNUAL MAINTENANCE FEES*
* To commence on the first anniversary of the date of Installation Acceptance.
Emageon Enterprise DICOM Cache Manager Software supports all features of the
Emageon Enterprise DICOM Archive Manager Software and includes the following:
1. Serves as a local access point for a remote archive
May extend access from imaging center to hospital
May extend access from hospital to data center
2. Addresses distributed archiving environments
Provides the benefits of a centralized archiving solution
Provides performance of a local, dedicated archive
Provides local access in the event of WAN failure
Caches recently acquired / retrieved information locally
Reduces WAN bandwidth requirements / telecom costs
3. Proxy Service
Provides transparent access to remote information
Provides a full view and access to the enterprise archive
subsystem
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Includes access to Legacy archives on the network
4. Deletor Strategy Services
Least Recently Used (LRU)
Least Recently Written (LRW)
No Deletion Strategy
Study Deletion Veto Strategy
High/Low Water Mark thresholds
5. Extends capabilities of the Enterprise DICOM Archive Manager Software
6. Transparent access to all data (location transparency)
EMAGEON ULTRAVISUAL SOFTWARE
Advanced Visualization tools are currently priced on a "concurrent user" basis.
The Emageon Advanced Visualization Software perpetual license fees for
Diagnostic and Clinical Workstation software at each Facility shall be
calculated by multiplying the number of concurrent users for the respective type
of workstation as set forth in Attachment B of the individual Order Addendum by
the appropriate Emageon Advanced Visualization Software fee set forth below. The
Emageon Advanced Visualization Software perpetual license fees as set forth
below reflect a 20% discount from list price. If a Facility wishes to add
concurrent users after the initial term has begun, the associated fees must be
paid up-front.
1. EMAGEON ADVANCED DIAGNOSTIC WORKSTATION SOFTWARE $ * * *
2. EMAGEON ADVANCED CLINICAL WORKSTATION SOFTWARE $ * * *
3. EMAGEON ADVANCED WEB CONTROLLER AND SOFTWARE (unlimited users) $ * * *
ULTRAVISUAL ANNUAL SERVICE AND SUPPORT FEE
Annual Service and Support fee is * * * of the Discounted License Fee for the
Ultravisual Software. The Annual Service and Support fee shall commence on the
first anniversary of the date of Installation Acceptance.
INSTALLATION AND ADOPTION SUCCESS MANAGEMENT
Implementation and Adoption Success service fees are currently priced as a one
time charge. These fees are set forth below in Table 1B of this Exhibit C.
Additionally, in no case, during the Term of this Agreement, shall the
Implementation and Adoption Success Management fees exceed those as set forth
below except that such pricing shall be adjusted to reflect the annual
percentage increase set forth in the CPI for the 12 months immediately preceding
the effective date of the increase and shall be added to such fees beginning in
Year 2 of this Agreement.
Computed Radiography (CR) implementation will require additional charges.
1. TECHNICAL IMPLEMENTATION FOR ARCHIVE AND DISTRIBUTION INFRASTRUCTURE
(Price per Archive Storage Manager as set forth in Attachment B of the
individual site supplement)
2. TECHNICAL IMPLEMENTATION FOR CACHE ARCHIVE AND DISTRIBUTION UNIT
(Price per Facility Image Cache as set forth in Attachment B of the
individual site supplement)
3. TECHNICAL IMPLEMENTATION FOR PRIMARY IMAGE SERVER SOFTWARE
(Price per facility)
4. STANDARD ASCENSION ADOPTION SUCCESS MANAGEMENT IMPLEMENTATION
(Price per facility and duties of both parties as set forth in
Exhibit G)
5. MODALITY INTEGRATION FEE
(Price per modality)
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TOTAL ACCOUNTABILITY SERVICE FEE
Emageon shall provide Total Accountability Services as defined in Section 1.29
of this Agreement. These fees are set forth below in Table 1B of this Exhibit C.
Additionally, in no case, during the Term of this Agreement, shall the Total
Accountability Service fees exceed those as set forth below except that such
pricing shall be adjusted to reflect the annual percentage increase set forth in
the CPI for the twelve months immediately preceding the effective date of the
increase and shall be added to such fees beginning in Year 2 of this Agreement.
1. EMAGEON TOTAL ACCOUNTABILITY SERVICE
(Price per facility per year)
PACS ADMINISTRATOR FEE
Emageon shall provide, at Customer's option, PACS Administrator(s) to provide
the services as set forth in Exhibit H. The PACS Administrator Fees are set
forth below in Table 1B of this Exhibit C. The fees for the PACS Administrator
may be adjusted by mutual agreement to reflect the prevailing market rate for
such services.
1. ON-SITE PACS ADMINISTRATOR ANNUAL CHARGE
(Price per PACS Administrator)
If Customer chooses to provide their own PACS Administrator, then Customer
agrees to send their PACS Administrator through Emageon's PACS Administrator
training and certification process. Customer shall be responsible for their
travel related expenses.
1. CUSTOMER PACS ADMINISTRATOR TRAINING CHARGE - YEAR 1 $20,000
(Price per PACS Administrator Trainee)
2. CUSTOMER PACS ADMINISTRATOR TRAINING CHARGE - YEAR 2-5 $ 4,500
(Price per PACS Administrator Trainee per year)
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EMAGEON PROFESSIONAL SERVICES
Emageon Professional Services are currently priced on a "per study tier" and
unit basis. The projected volumes as set forth in Attachment C of the individual
Order Addendum are used to calculate the appropriate per study tier and the
applicable Professional Services Fees for each Facility. The prices listed below
reflect discounts that ranges from 57% - 90% of the Standard Price.
EXPLANATION OF PRICES LISTED IN TABLE 1B:
ARCHIVE IMPLEMENTATION FEE (Price per Archive Storage Manager as set forth in
Attachment B of the individual Order Addendum)
CACHE IMPLEMENTATION FEE (Price per Facility Image Cache as set forth in
Attachment B of the individual Order Addendum)
IMAGE SERVER IMPLEMENTATION FEE (Price per facility)
ADOPTION SUCCESS MANAGEMENT FEE (Price per facility and duties of both parties
as set forth in Exhibit G)
MODALITY INTEGRATION FEE (Price per modality)
TOTAL ACCOUNTABILITY FEE (Price per facility per year)
PACS ADMINISTRATION FEE (Price per PACS Administrator per year)
TABLE 1B - ASCENSION PROFESSIONAL SERVICES - PER TIER PRICE TABLE
* * *
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THIRD PARTY HARDWARE AND VENDED SERVICES
Emageon resells hardware (i.e., servers, storage, computed radiography devices,
DICOM conversion boxes) and Vended Services and Third Party Software to support
Emageon Software. Emageon will price all Hardware and Vended Services to
Ascension Ministries at a * * * markup to Emageon's cost. Customer may acquire
IBM and other hardware from a third party; provided, however, that the hardware
purchased must be in accordance with Emageon specifications for warranty and
service purposes. Furthermore, Customer agrees to grant Emageon a right to bid
on purchases of PACS Hardware and Vended Service to be purchased by Committed
Facilities as defined herein on or before * * *. For purposes of this paragraph,
Committed Facilities means any Facilities that are: (i) part of the following
Ascension Ministries: * * *; and (ii) any Facility that is listed in an executed
Order Addendum.
FUTURE PRODUCTS
The contents of the Emageon Software as defined above, represent the full
functionality of the Emageon Software being sold to Customer under this
Agreement. Notwithstanding, System Upgrades and Updates as defined in this
Agreement, and covered under the Software Support and Maintenance fees, the
parties agree that any future, new product offerings are not covered under this
Agreement and will be sold separately and then negotiated rates.
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EXHIBIT D
BUSINESS ASSOCIATE AGREEMENT
This Business Associate Agreement ("BAA") is entered into as of May 5, 2004 in
connection with the Managed Use Agreement (the "Agreement") by and between
Emageon UV, Inc. ("Business Associate") and Ascension Health and its Ascension
Affiliates ("Covered Entity").
WHEREAS, the Agreement requires Business Associate to have access to and/or to
collect or create Protected Health Information ("PHI") in order to carry out
Business Associate's functions on behalf of Covered Entity.
WHEREAS, Covered Entity and Business Associate intend to protect the privacy and
provide for the security of PHI disclosed, collected or created by Business
Associate in connection with the Agreement in compliance with the Health
Insurance Portability and Accountability Act of 1996, Public Law 104-91
("HIPAA") and the regulations promulgated thereunder, including, without
limitation, the regulations codified at 45 CFR Parts 160 and 164 (the "Privacy
Rule"), 45 CFR Parts 160, 162 and 164 ("Security Rule"), and other applicable
laws.
NOW THEREFORE, in consideration of the mutual promises contained herein and the
exchange of PHI pursuant to this Business Associate Agreement, the parties agree
as follows:
1. DEFINITIONS
1.1 GENERAL RULE. Capitalized terms not otherwise defined in this BAA shall
have the same meaning as those terms in the Privacy Rule and Security
Rule.
1.2 HIPAA means the Health Insurance Portability & Accountability Act of
1996, P.L. 104-91.
1.3 HIPAA REGULATIONS means the regulations promulgated under HIPAA by the
U.S. Department of Health and Human Services, including the Privacy
Rule and Security Rule.
1.4 PRIVACY RULE means the Standards for Privacy of Individually
Identifiable Health Information, codified at 45 CFR parts 160 and 164,
Subparts A and E, as currently in effect.
1.5 PROTECTED INFORMATION means Protected Health Information ("PHI")
provided by Covered Entity to Business Associate, or created or
received by Business Associate on Covered Entity's behalf.
1.6 SECURITY RULE means the Security Standards for the Protection of
Electronic Protected Health Information, codified at 45 CFR Parts 160,
162 and 164, as currently in effect.
2. BUSINESS ASSOCIATE OBLIGATIONS
2.1 Use and Disclosure of Protected Health Information. Business Associate will:
(a) use and disclose all PHI only as permitted or required to perform its
obligations under the Agreement, including this BAA, or as required by law; and
(b) will not use or further disclose any PHI in a manner that would violate
HIPAA, if such use or further disclosure was made by Covered Entity.
2.2 Disclosures to Agents and Subcontractors. Business Associate shall ensure
that any agent or subcontractor to whom it provides PHI agrees in writing to the
same terms set forth herein regarding the Use and Disclosure of PHI, including,
but not limited to, implementation of safeguards, notice of prohibited Use or
Disclosure, mitigation of harmful effects, responses to requests for access and
amendment, and a term permitting immediate termination of the agent's or
subcontractor's agreement with Business Associate for improper Use or Disclosure
of Protected Information. Business Associate shall terminate its agreement with
any agent or subcontractor to whom it provides PHI if such agent or
subcontractor fails to abide by any material term of such agreement.
2.3 Permitted Uses of Protected Health Information. Business Associate may use
PHI only as follows: (a) for the proper management and administration of
Business Associate; (b) to provide the Services described in or required by
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the Agreement and any additional or other services described in any addendum or
modification to the Agreement agreed to by Business Associate and Covered
Entity; (c) to carry out legal responsibilities of Business Associate; or (d) to
report violations of law to appropriate Federal and State authorities consistent
with 45 C.F.R. Section 164.502(j)(l).
2.4 Permitted Disclosures of Protected Health Information. Business Associate
may disclose PHI only as follows: (a) to authorized persons designated by
Covered Entity in writing; (b) to the patient that is the subject of the
information pursuant to procedures determined by Covered Entity and in
accordance with applicable law; (c) to a physician or other health care
professional authorized by Covered Entity in writing to access the information;
(d) to other persons as expressly requested in writing by Covered Entity and in
accordance with applicable law; (e) to persons under Business Associate's direct
control as necessary to satisfy Business Associate's obligations under the
Agreement; (f) to other agents and subcontractors of Business Associate only as
necessary to satisfy Business Associate's obligations under this Agreement and
only, if and to the extent, those agents and subcontractors agree to the same
restrictions and conditions on the use and disclosure of PHI that apply to
Business Associate through this BAA; (g) as required by law; and (h) for
Business Associate's proper management and administration or to carry out its
legal obligations if: (1) the disclosure is required by law or (2) Business
Associate obtains reasonable assurances from the person to whom the information
is disclosed that it will be held confidentially and used or further disclosed
only as required by law or for the purpose for which it was disclosed to
Business Associate and the person notifies Business Associate of any instances
of which it is aware in which the confidentiality of the information has been
breached.
2.5 Disclosures Required by Law. If a disclosure of PHI is required by law,
including pursuant to a request from a state or federal government agency or
pursuant to a subpoena or a court order in a judicial proceeding, Business
Associate shall promptly notify Covered Entity of such request, and Covered
Entity shall __________.
2.6 Safeguards; Mitigation. Business Associate shall use appropriate safeguards
to prevent the use or disclosure of PHI other than as permitted or required by
the Agreement and this BAA or as permitted or required by law. Business
Associate agrees to mitigate, to the extent practicable, any harmful effect that
is known to Business Associate of use or disclosure of PHI by Business Associate
in violation of the requirements of this BAA.
2.7 Reports of Unauthorized Use or Disclosure. Business Associate shall report
in writing, within forty-eight (48) hours, to Covered Entity any use or
disclosure of PHI not provided for by this BAA of which it becomes aware.
2.8 Availability of PHI. Business Associate will make all PHI available to
Covered Entity and otherwise cooperate with Covered Entity to the extent
necessary for Covered Entity to comply with its obligations under 45 C.F.R.
Sections 164.524-528, including providing patients access to medical records, an
opportunity to amend incorrect information and an accounting of disclosures of
PHI. Business Associate further agrees to make its internal practices, books and
records, including policies and procedures and Confidential Information,
relating to the use and disclosure of PHI available to the Secretary of Health
and Human Services in a time and manner designated by the Secretary of Health
and Human Services, if necessary, for the purpose of determining Covered
Entity's compliance with HIPAA.
2.9 Electronic Protected Health Information. To the extent that Business
Associate creates, receives, maintains or transmits Electronic Protected Health
Information on behalf of Covered Entity on or after April 21, 2005, Business
Associate agrees to:
A. Implement Administrative, Physical and Technical Safeguards that
reasonably and appropriately protect the confidentiality, integrity and
availability of the Electronic Protected Health Information;
B. Ensure that any agent, including a subcontractor, to whom it provides
Electronic Protected Health Information agrees to implement reasonable
and appropriate safeguards to protect it; and
C. Report to Covered Entity any Security Incident of which Business
Associate becomes aware.
2.10 Limitations and Restrictions. To the extent that Covered Entity notifies
Business Associate of any limitations in its notice of privacy practices under
Section 3.2(A) herein; any changes in or revocations of permission under Section
3.2(B) herein; or any restrictions under Section 3.2(C) herein; Business
Associate shall comply with such limitations, revocations or restrictions, as
applicable.
3. COVERED ENTITY OBLIGATIONS
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3.1 Requests. Subject to uses and disclosures permitted under this BAA, Covered
Entity shall not request Business Associate to use or disclose PHI in any manner
that would not be permissible under HIPAA if done by Covered Entity.
3.2 Required Notices.
A. Covered Entity shall notify Business Associate of, and specifically
identify, any limitations in its notice of privacy practices in
accordance with 45 C.F.R. Section 164.520, to the extent that such
limitations impose restrictions beyond those generally applicable under
HIPAA and may affect Business Associate's use or disclosure of PHI.
B. Covered Entity shall notify Business Associate of any changes in, or
revocation of, permission by an Individual to use or disclose PHI, to
the extent that such changes may affect Business Associate's use or
disclosure of PHI.
C. Covered Entity shall notify Business Associate of any restriction to
the use or disclosure of PHI that Covered Entity has agreed to in
accordance with 45 C.F.R. Section 164.522, to the extent that such
restriction may affect Business Associate's use or disclosure of PHI.
4. TERM AND TERMINATION
4.1 Term. This BAA shall commence as of the Effective Date and shall continue in
effect so long as the Underlying Agreement is in effect. Upon termination of the
Underlying Agreement for any reason, this BAA shall automatically terminate,
without action of the parties. Notwithstanding the first sentence of this
Section 4.1, if either party determines that this BAA is no longer required,
then either party may terminate this BAA upon written notice to the other, and
the Underlying Agreement shall thereafter continue in full force and effect.
4.2 Termination for Cause. If Covered Entity determines that Business Associate,
or any of its agents or subcontractors, has breached any material provision of
this BAA, Covered Entity may terminate the Agreement if Business Associate fails
to cure a default or breach of a material term of this BAA within fourteen (14)
days after or, at Covered Entity's sole discretion, it receives written notice
of such default or breach from Covered Entity. If neither termination nor cure
is feasible, Covered Entity may report the violation, if any, to the Secretary
of Health and Human Services.
4.3 Effect of Termination. Except as provided herein, upon termination of the
Agreement or of this BAA for any reason (and if Business Associate and Covered
Entity do not enter into any comparable successor agreement or BAA), Business
Associate shall return or destroy all PHI, including Confidential Information
that is in the possession of subcontractors or agents of Business Associate, and
Business Associate shall retain no copies of the PHI. In the event that
returning or destroying the PHI is infeasible, Business Associate shall provide
to Covered Entity notification of the conditions that make return or destruction
infeasible and shall extend the protections of this BAA to such PHI and limit
further uses and disclosures of such PHI to those purposes that make the return
or destruction infeasible, for so long as Business Associate maintains such
Confidential Information.
5. MISCELLANEOUS
5.1 No Third Party Beneficiary. The provisions and covenants set forth in this
BAA are expressly entered into only by and between Business Associate and
Covered Entity and are intended only for their benefit. Neither Business
Associate nor Covered Entity intends to create or establish any third party
beneficiary status or right (or the equivalent thereof) in any other third
party, and no such third party shall have any right to enforce or enjoy any
benefit created or established by the provisions and covenants in this BAA.
5.2 Regulatory References. A reference in this BAA to a section in the Code of
Federal Regulations means the section as in effect or as amended, and for which
compliance is required.
5.3 Governing Law. This BAA shall be construed in accordance with the laws of
the State of Missouri.
5.4 Amendment. The Parties agree to take such action as is necessary to amend
this BAA from time to time as is necessary for Covered Entity to comply with the
requirements of HIPAA.
5.5 Interpretation. Any ambiguity in this BAA shall be resolved in favor of a
meaning that furthers the obligations to protect the privacy of the PHI in
accordance with the Privacy Rule or Security Rule, as applicable.
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5.6 Counterparts. This BAA and any exhibits hereto may be executed in one or
more counterparts; each counterpart shall be deemed an original.
5.7 Notices. All notices required or permitted to be given under this BAA shall
be in writing and shall be sufficient in all respects if delivered personally,
by nationally recognized overnight delivery service, or by registered or
certified mail, postage prepaid, addressed as follows:
If to Emageon: Emageon, Inc. If to Covered Entity: Ascension Health
1200 Corporate Drive 4600 Edmundson Road
uite 400 St. Louis MO. 63134
Birmingham, AL 35242 ATTN:
ATTN: CFO
Notice shall be deemed to have been delivered and given for all purposes (i) on
the delivery date if delivered personally to the party to whom the same is
directed; (ii) one business day after deposit with a commercial overnight
carrier, with written verification of receipt, or (iii) five business days after
the mailing date whether or not actually received, if sent by U.S. certified
mail.
IN WITNESS WHEREOF, the parties hereto have duly executed this Business
Associate Agreement as of the date set forth below.
Business Associate Covered Entity
Emageon UV, Inc. Ascension Health
By: /s/ W. Randall Pittman By: /s/ Sherry Browne
---------------------- ----------------------------------
Name: W. Randall Pittman Name: Sherry Browne
-------------------- --------------------------------
Title: CFO Title: SVP & Chief Information Officer
------------------- -------------------------------
Date: 5/6/04 Date: May 5, 2004
-------------------- --------------------------------
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EXHIBIT E
EMAGEON UV, INC.
CORPORATE TRAVEL GUIDELINES
INTRODUCTION
Emageon employees may be required to travel on official Company business from
time to time. Emageon will reimburse employees, within prescribed limitations,
for all necessary and actual travel expenses incurred while traveling on Company
business.
The Corporate Travel Guidelines, presented here, should facilitate the timely
reimbursement of employees for allowable travel expenses incurred during travel
on Company business. The guidelines address most common travel situations, but
they are not intended as a substitute for knowledge of existing Company policy
or IRS regulations.
Travel expenses may also be allowed as part of an employee relocation and
employee recruitment.
TRAVEL EXPENSE FORM
The Travel Expense Form is available as a general template for electronic entry
and presentation of travel and related expenses. The Form is designed to provide
the minimum information required to support expenditures incurred by employees.
The report accomplishes several objectives.
o First, it provides employees responsible for approving these expenses
with the necessary details to perform the task.
o Second, it provides Finance personnel with the information necessary to
account for these expenses consistent with Company policies and IRS
regulations.
o Third, it enables Finance to reconcile amounts reported by employees as
Company-paid items with invoices received from vendors for such
services.
TRAVEL EXPENSE PROCESSING & REIMBURSEMENT
Each employee is required to promptly submit expense reports that are complete,
timely and with appropriate receipts and documentation attached. Approval by the
employee's Department Head serves several purposes:
o First, it confirms that the purpose of the trip is to conduct company
business.
o Second, the charges are reasonable and appropriate under the
circumstances and consistent with Company policies.
o Third, the required documentation and receipts are attached.
With few exceptions, Finance will arrange for travel and related expenses to be
reimbursed within a week of submission of an approved expense report.
AIR TRAVEL
There are certain guidelines that apply to Air Travel.
1. The least expensive routing should always be sought. Book your
travel as far in advance as possible to qualify for more
economical prices.
2. Southwest Airlines is the preferred airline for travel to and
from Birmingham and other cities serviced by Southwest.
3. Coach class will be used for all flights, except in those
instances where the customer has contractually agreed to
reimburse the company for an upgrade to higher class.
4. Employees are not authorized to use personal frequent flyer
miles and charge the Company for the corresponding value.
5. The company does not provide memberships in airline travel
clubs at company expense.
6. The only acceptable receipt for airline travel fares is the
Passenger Receipt. Itineraries, boarding passes, credit card
receipts, etc. are not acceptable for reimbursement.
7. Employees are encouraged to use e-ticket services offered by
most airlines. These airlines email or provide printed
receipts and itineraries.
8. In the event the Passenger Receipt is misplaced, a copy is
available through the travel agency of record.
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USE OF RENTAL & PERSONAL VEHICLES
It may be necessary for an employee(s) to utilize a vehicle rented from a
commercial agency such as Hertz or National or their personal vehicle while on
Company business. Employees will be reimbursed for the use of their privately
owned vehicle at the IRS recommended mileage rate. Reimbursement for the use of
rental vehicles will be made in full as long as the vehicle was used exclusively
for Company business.
There are certain guidelines that apply to the use of Leased or Privately Owned
Vehicles.
1. Vehicles should be sized appropriately for the intended
purpose. Moderate size autos are encouraged.
2. When at all possible, fill up auto rentals with gas before
returning to the rental agency.
3. If you pay for auto rental charges by other than credit card,
you are subjecting yourself and the Company to liability for
injury to yourself, passengers in your vehicle or any other
vehicle(s) involved, pedestrians, and the physical damage to
other vehicles and property.
4. The use of a credit card when renting a vehicle achieves two
purposes. You have the added insurance coverage the credit
card company offers a specified insurance coverage in the
event of an accident this allows you to decline the optional
insurance offered by the rental agency.
If an accident occurs involving a privately owned or rental vehicle being used
for Company business, the following actions should be taken:
1. The vehicle operator or some other reliable person should
immediately report the accident to local, county or state
police.
2. At the accident scene, statements should not be made to anyone
except law enforcement officers. It will be necessary to
discuss the accident with insurance company representatives.
3. If possible, obtain pertinent information of other parties
involved in the accident such as name, address, telephone
number(s), driver's license number, and insurance information
of other parties involved in the accident.
4. In case of an accident in which there are serious injuries or
death, immediately notify your Manager/Department Head of the
accident. If the employee is unable to do so, then the first
employee having knowledge of the accident should make the
notification. This information should be reported to the CEO,
the CFO and the InHouse Counsel as soon as possible.
5. A complete report of the accident should be provided to the
InHouse Counsel within 24 hours of the accident if possible.
Employees operating a leased or privately owned vehicle are responsible for
operating the vehicle in a safe and prudent manner and in accordance with all
applicable federal, state, and local traffic laws. Fines assessed for traffic
citations or other violations of applicable traffic laws are the responsibility
of the employee and are not reimbursable.
HOTEL ACCOMMODATIONS
Employees will be reimbursed for actual accommodation expense incurred,
including the state/local taxes applied thereto. The official receipt from the
establishment must be submitted with the Travel Expense Report Form.
1. Travelers are expected to arrange the lowest-cost reasonable
accommodations, such as the Hampton Inn.
2. Charges for room rental and associated taxes should be
categorized by day. Other charges included on the hotel bill
for meals, telephone, fax and other services should be
reported on the applicable day and in the appropriate line on
the Travel Expense Report Form.
3. Laundry costs are reimbursable on trips longer than 4 nights.
4. Hotel/motel pay movies are not reimbursable.
ENTERTAINMENT
The company recognizes that a certain amount of customer entertainment is a
reasonable and customary business expense.
1. Caution must be exercised when employees of federal, state and
local government regulatory bodies or agencies are present
when entertainment expenditures are involved as applicable
federal and state laws severely limit the amounts that can be
expended in such situations.
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2. When it is proposed that the company pay for travel and
related expenses by non-employees, approval of the CEO and
President is required in advance.
3. All entertainment expense in excess of $25 must be supported
by a receipt. In addition, the individuals present, the nature
of the entertainment and an explanation provided in the
appropriate space on the expense report.
TRAVELER'S MEALS/BUSINESS MEALS
1. Employee meals are normally reimbursable only when away from
home on overnight travel.
2. Meals should be reported as breakfast, lunch or dinner on the
day incurred.
3. In general, lunch is the responsibility of the employee except
when traveling, or for a special occasion organized by the
company. In particular, luncheon expenses for meals involving
only employees who are in frequent contact with one another,
should be the responsibility of the individuals and not the
Company.
4. Receipts are required for any individual meal in excess of
$25; a credit card charge slip or cash register receipt are
acceptable but the names of the participants and the business
nature of the occasion must be indicated in the appropriate
space on the expense report.
5. Traveler's and business meals are subject to tax deductibility
limitation while Company meeting expense is a fully deductible
business expense. Therefore, it is important that your
expenditures are properly classified among these three
categories. The following are definitions of each of the three
expenses.
a. Employee's Meals - Cost incurred by an employee for
his/her meals while traveling on Company business.
b. Business Meals - Report the cost of food or beverages
for one or more participants (employees and
non-employees) and the nature of the business
discussion that ensued. The cost of the employee(s)'
meal should be included with the other participants
and reported as Business Meal/Entertainment. The
reporting requirements for such situations are the
same as for entertainment.
c. Company Meeting - Normally the cost of meeting rooms,
instruction materials and supplies, meals and
refreshments that are incidental to a Company meeting
will be handled by a Company representative who will
make arrangements for their payment. The Company
representative responsible for the arrangement is
required to submit an expense report identifying the
participants and the business purpose of the meeting.
Individual employees are required to submit expense
reports only if employee(s) incur travel expenses
other than those provided as part of the proceedings.
Normally, a Company meeting will only involve Company
personnel, however when non-company personnel are
present, their expenses should be reported
separately.
TAXIS, TOLLS AND PARKING
1. The IRS (and the Company) requires receipts for taxi, airport
limo, bus, toll and parking charges.
POSTAGE, OFFICE SUPPLIES AND OTHER MISCELLANEOUS EXPENSES
1. The Expense Report form provides for travelers to report
office supplies and other miscellaneous expenses.
2. This feature is primarily intended for Sales Representatives
and other employees who reside outside of Birmingham and do
not have access to office supplies available at Emageon
office.
EXPENSE DOCUMENTATION
1. To comply with Internal Revenue Service documentation
requirements, receipts are required for all expenditures. In
the event a receipt is misplaced, a detailed note should be
included with your expense report.
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EXHIBIT F
PROJECT ACCEPTANCE PROCESS
THIS IS A SAMPLE INSTALLATION ACCEPTANCE PROCESS (NOT ALL COMPONENTS OF
THIS SAMPLE PLAN WILL BE APPLICABLE TO EVERY CUSTOMER. THIS DOCUMENT IS
INTENDED AS A SAMPLE ONLY.)
The acceptance process is divided into three phases:
Hardware Installation Acceptance
Installation Acceptance
Transition to Service
HARDWARE INSTALLATION ACCEPTANCE
The Order Addendum shall provide the specific detail for each
Customer. Unless otherwise provided herein or in the Order
Addendum, the Hardware shall be deemed accepted by Customer
when Emageon certifies completion of installation of the
Hardware. Should Emageon be prevented from installing the
Hardware in accordance with the mutually agreed upon written
installation schedule due to Customer's inability to take
delivery, or begin installation of the Hardware, then the
Hardware shall be deemed installed and accepted fifteen (15)
days after the agreed upon written installation schedule.
Customer agrees to pay all fees associated with the Hardware
acceptance to Emageon at that time. Should Installation of the
Hardware be delayed solely due to the fault of the other
party, the delayed party may recover from the delaying party
actual expenses incurred as a direct result of such delay.."
Emageon will perform and document the results of the Hardware
Installation Acceptance in accordance with the attached sample
below or as defined in this Agreement, if different from the
example. The Customer point of contact will observe the
analyses and sign-off on each task upon successful completion.
In addition to any other testing or checklist required to
confirm that the System conforms to the System Specifications,
the parties shall confirm the presence of the functionality
described and evidenced with a checkmark below, and such
functionality shall be included within the definition of
"System Specifications":
* * *
SYSTEM INSTALLATION ACCEPTANCE
The Order Addendum shall provide the specific details for each
customer. However, the following provides an excerpt from the
Order Addendum related to System Installation Acceptance.
Emageon will perform and document the results of the System
Installation Acceptance in accordance with the attached sample
below or as defined in this Agreement, if different from the
example. The Customer point of contact will observe the
analyses and sign-off on each task upon successful completion.
* * *
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TRANSITION TO SERVICE
The final phase of the project is to transfer responsibility
for the Customer from Emageon Adoption Success Management (as
described in Exhibit G) to the Emageon Service Group. Since
the Emageon model demands that we earn our money every month,
the transition to Service is different in several ways. One
example is the Emageon Service Group utilizes a Continuous
Improvement Model. As part of the model, the implemented
system will be perpetually improved and upgraded to meet the
requirements as defined in the Customer contract.
During the implementation, every attempt is made to complete
open items related to system configuration, system
performance, training, etc. However, since open items will
usually exist, our model is designed for the Service the Group
to assume responsibility and manage open items, while
continually monitoring and improving the system.
The transition to Service begins during the ASM Integration
and Training phase. During this phase the Emageon Service team
will:
Conduct on site visits and perform equipment and workflow audits.
Become familiar with site layout and facilities
Meet the customer team
Monitor progress of project
Assist with Customer training
Validate remote monitoring and access capability
Verify site document is complete
As a part of the transition, ASM is responsible for completing
and transferring documented information related to the system
configuration, test results, and day-to-day operational
procedures as defined in the table below.
* * *
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EXHIBIT G
ADOPTION SUCCESS MANAGEMENT SERVICES
Adoption Success Management (ASM) services, Emageon and related CUSTOMER
responsibilities are detailed below. Emageon and CUSTOMER agree to perform the
duties assigned to each of them, respectively, as set forth below.
OVERVIEW
ASM services are an Emageon developed, refined and tested methodology for
deploying Enterprise Image Management Systems (EIMS). ASM services may be
offered in conjunction with Emageon Implementation Services or may be an
"overlay" process to a 3rd party's implementation process. The service is
designed to be dynamic and configurable to an individual Facility's needs. The
ASM methodology utilizes skills in project management, change management,
clinical workflow and training with a focus on the applied principles of adult
learning.
The purpose of ASM services is to minimize the time required for an organization
to adopt an EIMS, maximize the effective value of an EIMS, and to mitigate the
organizational disruptions that may occur during a major information technology
implementation.
Emageon and CUSTOMER are jointly responsible for the success of the ASM project,
and for providing the necessary resources for the project.
***
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CUSTOMER RESPONSIBILITIES
CUSTOMER shall:
o Be Responsible for The Adoption of the EIMS
o Provide Access To Necessary Personnel And Facilities Critical In The
Facilitation Of The ASM Project
o Provide Necessary Communications Support - Telephone, Internet Access,
Etc
o Insure CUSTOMER Provided Facilities, Information Systems And Modalities
Are Prepared, Maintained And Operational For Integration Into The EIMS
o Participate In ASM Meetings
o Participate, at its own cost, in Development of Materials, Including
But Not Limited To Marketing Materials, Training Guides, Communication
Tools and Similarly Related Materials for Deployment and Adoption of
The EIMS.
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o Provide A Dedicated ASM Project Coordinator To Support And Facilitate
The ASM Project
o Shall Bear and Pay All Costs Associated With The Production of
Materials, Including But Not Limited To Marketing Materials, Training
Guides, Communication Tools and Similarly Related Materials for
Deployment and Adoption of The EIMS.
CUSTOMER Shall Make Personnel And Facilities Available According To A Mutually
Agreed Upon Schedule.
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EXHIBIT H
EMAGEON PACS ADMINISTRATOR SERVICES
Emageon PACS ADMINISTRATOR Services and related responsibilities are detailed
below by function.
GENERAL
Where specified in an Order Addendum, Emageon will provide a PACS Administrator
(PA) for the duration of the Agreement to perform the duties as defined below.
The PACS Administrator will report to Emageon, but have day to day operational
reporting to a designated Customer manager.
Assumptions and General Understandings between the Parties:
o Standard hours for PA(s) are from 8 am to 5 pm CST. After hours support
will be handled through pager communications.
o Workload for PA shall remain consistent with normal, industry accepted
workloads for a trained and reasonably skilled individual performing
these functions. Ratios to be used for determining acceptable workload
shall include number of radiologists, number of studies performed
annually, number of diagnostic reading stations, after hours reading
requirements and system accessibility requirements.
o PA shall be mutually selected by both parties.
Customer Obligations
1. Customer shall provide an adequate working space in or near
the facilities requiring PA services from the PA.
2. Customer shall provide the equipment necessary for the PA to
perform the necessary functions of the PA position. This
equipment includes, at a minimum, the following:
a) Telephone
b) Computer with access to the facility networks and
Internet and all necessary applications to perform
the functions of PA
c) Pager for after hours on-call communications
d) Other tools and diagnostic equipment necessary for
the troubleshooting and repair of imaging equipment.
Any third party tools that modality vendors may
require for troubleshooting their products are the
responsibility of the Customer.
3. Customer shall provide, during the entire term of the
Agreement, a suitable "on-call" employee capable of performing
the majority of the PA's routine tasks. This on-call employee
will be responsible for managing the day to day operational
duties during all hours when the PA is not scheduled,
including, but not limited to, additional work shifts,
vacation time, sick time, and scheduled Emageon Company
holidays.
4. Customer shall assign a manager for the purpose of assigning
day to day operational duties to the PA.
Emageon Obligations
1. Emageon shall provide the recruiting, hiring and training of
all PA resources required for performing the PA functions.
2. Emageon will provide a computer for access to Emageon
documents and all other materials necessary for the
performance of the PA functions.
3. Emageon will nominate a Supervisor for the PA for overall
management, training and disciplinary actions.
4. Emageon will be solely responsible for PA's compensation and
benefits. Emageon will utilize all tools necessary for the
troubleshooting and repair of its contracted components.
Selection of PACS Administrator
The minimum requirements for the qualifications of the PA are outlined herein.
Emageon will identify qualified candidates and conduct formal interviews. Upon
completion of the interview process, Emageon will provide no less than two
qualified PA applicants for Customer review. Customer will select the preferred
candidate, and Emageon will extend a formal offer for hire of this individual.
In the event the preferred candidate cannot be hired for any reason, Emageon
will extend a formal offer for hire to the second candidate. The PA will be
scheduled to begin employment within thirty (30) days prior to or immediately
following the scheduled commencement of the implementation process.
PACS Administrator Review Process
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The PA will be reviewed for performance on a quarterly basis by the designated
Customer manager and will be reviewed once annually by both Customer and Emageon
for performance. All Designated Customer manager reviews will be sent to the
Emageon Human Resources Specialist within thirty (30) days of the end of the
evaluation period. Criteria for the performance review shall be mutually agreed
upon by Customer and Emageon. Any disciplinary action shall be at the sole
discretion of Emageon.
Disciplinary Action
If at any time, the designated Customer manager feels that the PA has engaged in
any violation of Emageon or Customer policy which warrants disciplinary action,
the designated Customer manager must notify the Emageon Human Resources
Specialist within three (3) business days of the actual violation or of becoming
aware of the violation by way of written correspondence outlining the details of
the violation. Any disciplinary action shall be at the sole discretion of
Emageon.
Termination of PACS Administrator
The PA may be terminated by Emageon for any reason by which Customer may
terminate any employee of the Customer, or for any reason by which Emageon may
terminate any Emageon employee, including failure to perform in accordance with
agreed criteria. A copy of Customer's employment terms and conditions must be
provided to Emageon upon execution of this Agreement.
Replacement of PACS Administrator
In the event of voluntary or involuntary termination of PA, Emageon shall
provide, within five (5) business days, a temporary replacement for the PA.
Emageon will provide, within 60 days, a permanent replacement for the terminated
PA, and will provide the required education and training necessary for the
replacement PA to perform the duties as identified below.
Grievance Policy
In the event the PA has an employment-related issue or conflict that cannot be
resolved through 1) discussions with the designated Customer manager and 2)
discussions with the appropriate Emageon manager, the Grievance Policy as set
forth in the Emageon, Inc. Employee Manual shall be followed.
Travel Policy
All travel, lodging and related expenses of the PA incurred on business
transacted at the request of the Customer will be submitted to Customer for
reimbursement according to the Customer's travel reimbursement policy. If
Customer does not have a published travel reimbursement policy, then the Emageon
policy shall prevail.
PACS ADMINISTRATOR FUNCTIONS
PACS Administrator Functions Description
---------------------------- --------------------------------------------------------------------------------
Primary Coordination and communication throughout the project integration to all project
Communication players for Emageon and customer.
---------------------------- --------------------------------------------------------------------------------
System Installation Management of RIS/ PACS implementation process including order review, project
planning, resource scheduling and coordination, Facility specific system
configuration design, equipment scheduling.
---------------------------- --------------------------------------------------------------------------------
Facilities Readiness Assure that the customer site complies with Emageon specified power, heat,
and Preparation dimension, and network requirements. Monitor site to assure site readiness,
scheduled delivery dates, and installation readiness.
---------------------------- --------------------------------------------------------------------------------
Daily Operations Manage day-to-day operation of PACS equipment including image workflow,
archiving, routing, pre-fetching, correcting broken studies, editing patient
demographics, HIS/RIS interface
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PACS Administrator Functions Description
---------------------------- --------------------------------------------------------------------------------
Support, Document and communicate specific issues identified by clinical users with
troubleshooting respect to Service issues, updates, progress and resolution. Escalate and be an
and issue resolution advocate for customer support, issues and problems.
---------------------------- --------------------------------------------------------------------------------
Disaster Preparedness, Initiate switchover to system and/or component backup procedures as necessary
Failure Correction and report any system or component failures to Emageon.
and Recovery
Perform daily, weekly, and monthly routine maintenance procedures as required.
Perform backup/ disaster recovery procedures, including off-site storage of
tapes as required.
---------------------------- --------------------------------------------------------------------------------
Training and Internal Support application programmers and end-user groups and communicate any requests
PACS for moves, additions, and changes to the Emageon system.
Communications
Monitor clinical workflow procedures and make recommendations for improvement.
Conduct system/ component training.
Serve as PACS liaison to hospital departments.
-----------------------------------------------------------------------------------------------------------------
PACS ADMINISTRATOR MINIMUM REQUIREMENTS
Competencies, Knowledge, Skills, and Abilities
1. Demonstrated ability to work independently and guide Customer
through operational improvement process.
2. Knowledge of Radiology workflow.
3. Knowledge of Radiology Department and Hospital employees,
roles and responsibilities.
4. Strong process orientation, problem solving and
troubleshooting skills, and a firm commitment to quality
5. Must have the ability to understand, relate, and build
confidence in customer.
6. Experience in DICOM protocol, general computer network
technology, high performance computing systems and archival
storage systems.
7. Excellent verbal and written communication skills- ability to
interface and influence at multiple organizational levels.
Preferred Education and Experience
1. BS degree in technical discipline preferred.
2. 5+ years in hospital information technology.
3. Licensed Radiology Technologist (R.T.) preferred.
4. Minimum 2 to 3 years project management experience working
with customers, vendors and leading cross-functional teams.
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EXHIBIT I
ORDER ADDENDUM
EMAGEON UV, INC.
ORDER ADDENDUM
FOR
---------------
This EMAGEON UV, INC., Order Addendum (the "ADDENDUM"), effective as of
_____________________ ("Effective Date") and entered into by and between Emageon
UV, Inc. ("Emageon"), whose principal place of business is at 1200 Corporate
Drive, Suite 400, Birmingham, Alabama 35242, ________________, whose principal
place of business is at __________________________________ ("ASCENSION
MINISTRY"), and Ascension Health, whose principal place of business is at 4600
Edmundson Road, St. Louis MO. 63134 ("ASCENSION HEALTH" OR "CUSTOMER") shall
supplement and amend, where indicated, the EMAGEON UV, INC., MASTER TERMS AND
CONDITIONS, ENTERPRISE AGREEMENT (the "MASTER AGREEMENT") entered into by and
between EMAGEON UV, INC. ("Emageon"), and aSCENSION HEALTH dated
___________________, 2004. By way of clarification, in the event of conflict
between the terms of the Master Agreement and this Addendum, this Addendum shall
be controlling.
1. The Master Agreement consists of the Enterprise Software Pricing for
the Facilities and Affiliates as well as a description of the
Implementation Service and the Maintenance and Support Services to be
provided by Emageon. Ascension Ministry hereby agrees to accept the
products and services set forth in the Master Agreement and in the
following Attachments, and Emageon agrees to furnish such products and
services, upon the terms and conditions of the Master Agreement and
this Supplement and its Attachments to the Facilities set forth in
Attachment D.
This Supplement includes the following attachments:
Attachment A: Site Survey
Attachment B: SYSTEM configuration
Attachment C: Terms and Fees
Attachment D: Facilities
Attachment E: Technical Points of Contact
Attachment F: Response Time Service Level Specifications
IN WITNESS WHEREOF, the parties have caused this Supplement to be executed by
their duly authorized representatives and made effective as of the Effective
Date.
ACCEPTED AND AGREED TO: ACCEPTED AND AGREED TO:
Emageon: :
EMAGEON UV, INC. ------------------------------
------------------------------
By: By:
---------------------------------- ------------------------------
Name: Name:
------------------------------- ---------------------------
Its: Its:
-------------------------------- -----------------------------
Ascension Health
By:
------------------------------
Name:
----------------------------
Its:
-----------------------------
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<PAGE>
ATTACHMENT A
SITE SURVEY
Ascension Ministry agrees the attached Site Survey represents a list of all
image acquisition devices located at the Facilities and their respective volumes
and study sizes. Ascension Ministry agrees that such Site Survey represents all
image acquisition devices that shall be connected to the SYSTEM. Ascension
Ministry shall first notify Emageon prior to making any changes that would add
new image acquisition devices or change the acquisition parameters, which would
thereby increase volume and / or study sizes. Ascension Ministry acknowledges
that such changes could result in diminished SYSTEM performance or capacity
subject to adjustments as contemplated in Section 9.8 of the Master Agreement.
Additionally, such changes will likely result in additional charges to Ascension
Ministry including integration fees and additional hardware / storage costs
necessary to maintain SYSTEM performance.
* * *
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ATTACHMENT B
SYSTEM CONFIGURATION
The following components constitute the SYSTEM whether supplied by Emageon or
Ascension Ministry. Any components not specified in the table below that are
subsequently required or desired shall be Ascension Ministry's responsibility.
Where Emageon supplies components, Emageon reserves the right to substitute
components that provide equal or better capacity, performance, and reliability.
Emageon shall first notify Ascension Ministry prior to any substitutions.
Where Ascension Ministry supplies components, the components must meet or exceed
Emageon listed specifications. Ascension Ministry-supplied components must be
approved by Emageon prior to installation to ensure compatibility with Emageon
Software and Hardware components. Ascension Ministry is required to maintain
compatibility with Emageon Software and Hardware components. Emageon may charge
Ascension Ministry a certification charge for non-approved hardware and software
components.
Any SYSTEM support issues that are attributable to Ascension Ministry supplied
components may result in additional service fees to Ascension Ministry.
SYSTEM unavailability attributable to Ascension Ministry-supported components
shall not constitute SYSTEM downtime.
* * *
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ATTACHMENT C
TERMS AND FEES
FACILITY - PRICING SCHEDULE AND TERMS [THE FOLLOWING TABLE IS TO BE COMPLETED
FOR EACH FACILITY]
* * *
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ATTACHMENT D
FACILITIES
The following list represents the Facilities covered by this Order Addendum.
[INSERT LIST OF FACILITIES]
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ATTACHMENT E
TECHNICAL POINTS OF CONTACT
The following list represents the Technical Points of Contact for Ascension
Ministry. Ascension Ministry may amend this list upon notice to Emageon.
[INSERT LIST OF TECHNICAL POINTS OF CONTACT]
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ATTACHMENT F
RESPONSE TIME SERVICE LEVEL SPECIFICATION
The specific specifications for the Response Time Service Levels for the
Facilities represented by this Order Addendum are as follows:
[INSERT RESPONSE TIME PERIOD, DEMARCATION POINT FOR MEASUREMENT AND OTHER
RESTRICTIONS OR CONDITIONS FOR EACH FACILITY]
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EXHIBIT J
PROFESSIONAL SERVICES RATES
The Professional Services Rates listed below shall apply to those activities
requested by Customer that are beyond the scope of the Implementation Services
and Support Services as set forth in Exhibit B of each Order Addendum.
Professional Services fees are billed separately from the SYSTEM fees and shall
be set forth in a separate Statement of Work. Professional Services will be
provided to Customer at the Professional Services Rates.
PROFESSIONAL SERVICES HOURLY FEES
Service Representative (per hour) $ * * *
Application Specialist (per hour) $ * * *
Interface Programming (per hour) $ * * *
Systems Engineer (per hour) $ * * *
Integration HL7/DICOM Consulting (per hour) $ * * *
Senior Application Consultant (per hour) $ * * *
Clinical Consultant (per hour) $ * * *
Senior Clinical Consultant (per hour) $ * * *
Migration Services (per TB) $ * * *
* The above Professional Services Rates DO NOT include either Travel and Living
Costs.
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EXHIBIT K
CLINICAL INFORMATION SYSTEMS VENDORS
o Cerner
o Eclipsys
o EPIC
o McKesson
o Meditech
o Siemens
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