MASTER AGREEMENT FOR APPROVED DIRECT VENDOR
THIS AGREEMENT (“Agreement”) is entered into this ___ day of
_____________________, 2013, by and between Michigan Health Information Network
Shared Services (“HIN”), with its principal place of business located at 120 W. Saginaw, East
Lansing, Michigan 48823 and __________________________________________, (“ Approved
Direct Vendor” or “ADV”), with its principal place of business located at
____________________________________________________________.
WHEREAS, HIN has selected ADV to provide Direct messaging capabilities and/or
professional services to assist HIN and its participating organizations to securely deliver health
information over the Internet and to aid in the development of health information exchange and
associated activities.
WHEREAS, ADV has agreed to provide specific software and/or services for HIN,
assisting in the design, development and support of current and future HIN health information
exchange efforts, platforms and associated technical architecture.
WHEREAS, the parties desire to set forth the terms of their Agreement.
NOW THEREFORE, ADV and HIN agree as follows:
1.
Procedure.
A.
Statement of Work. Any work performed by ADV for HIN shall be in
accordance with one or more Statements of Work (“SOW(s)”) substantially in the
form attached as Exhibit A issued or to be issued by HIN to ADV and ADV
agrees to perform the services identified in the SOW(s) (“Work”). All financial
terms and conditions shall appear in the SOW(s). ADV acknowledges that the
terms of this Agreement are incorporated in and are part of each SOW and any
purchase order, invoice, release, specification or other document relating to the
services of ADV. Training and other similar services purchased, as part of a
Software license, may be included on the applicable Order Form.
B.
Order Form. Each purchase of Software licenses shall be documented in
a mutually executed order form substantially in the form attached as Exhibit B
(“Order Form”). Each Order Form shall constitute a separate license (the
“License”). “Software” means the software program(s) identified on the
applicable Order Form and includes all upgrades of such program(s) provided
under this Agreement.
C.
Conflicting Terms. Each Order Form and SOW shall be a part of and be
governed by the terms and conditions of this Agreement. If there is a conflict
between this Agreement and any Order Form or SOW, the terms of the Order
Form or SOW shall control, provided, however, that an amendment to any term of
these general terms and conditions shall not be effective unless otherwise
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expressly provided in such Order Form or SOW that a contrary provision is
necessary due to applicable legal or regulatory requirements, or unless identified
by reference to the specific provision of these general terms and conditions.
D.
No Commitment to Purchase. Unless otherwise specifically agreed
between the parties, HIN is under no obligation or commitment to make any
purchases from ADV. HIN shall be obligated to make purchases in accordance
with this Agreement if and when the parties enter into an Order Form or SOW.
2.
Work.
A.
Scheduling. HIN agrees to cooperate with ADV’s reasonable request(s)
for the scheduling and performance of the Work and to pay ADV for ADV’s
Work as set forth in the SOW(s).
B.
Skills. All personnel assigned by ADV to perform Work under this
Agreement shall have suitable experience and qualifications required to perform
such Work in accordance with the standards established in this Agreement. ADV
shall not bill HIN for any on-the-job training.
3.
Grant of Licenses.
A.
Grant. ADV grants to HIN a nonexclusive, perpetual, sublicenseable
worldwide, license to use the Software and Documentation subject to the
restrictions set forth in this Agreement. The rights and licenses granted under this
Agreement to HIN may be used by or on behalf of any participating organizations
of HIN and, unless the Order Form expressly states otherwise, any individual or
entity that is not a competitor of the ADV and that is managed by or in a
contractual relationship with HIN or any of its participating organizations.
“Documentation” means user guides, operating manuals, release notes,
specifications, system operation materials and other similar documents, whether
in print or machine-readable media, made available by ADV to HIN.
“Participating organizations” means any organization, including any individual,
who has entered into an agreement with HIN to transmit data through the HIN
network.
B.
Copies. HIN shall have the right to make, retain, and use such copies of
the Software and Documentation as are reasonably necessary to exercise its rights
under this Agreement, subject to the restrictions set forth herein. HIN shall not
remove or destroy any proprietary notices of ADV from the Software or
Documentation and shall reproduce all copyrights, trademarks, or other
proprietary markings of ADV on all copies.
4.
Delivery and Acceptance.
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A.
Delivery of Software. ADV shall deliver, install and implement the
Software in accordance with the requirements set forth in the Order Form.
B.
Acceptance Testing. Following installation of the Software, HIN shall
have the period of time specified in the Order Form (the “Test Period”), or if no
period of time is so specified, thirty (30) days, in which to test the Software to
verify that it meets the Specifications. If the Software does not perform in
accordance with the Specifications, HIN shall so notify ADV and ADV shall
provide HIN with a written work plan that specifies when each deficiency shall be
corrected. The work plan shall be subject to HIN’s written approval. ADV shall
work diligently to correct all deficiencies within the timeframe specified in the
work plan and free of costs to HIN. If ADV is unable to correct a deficiency in
the Software within the agreed-upon timeframe and to HIN’s reasonable
satisfaction, HIN may terminate the License and ADV shall promptly return to
HIN any and all payments received under the applicable Order Form. The
Software shall be deemed accepted (“Acceptance”) upon written notice of
acceptance by HIN or expiration of the Test Period if HIN fails to notify ADV of
any deficiency during that period.
5.
Maintenance and Support Services.
A. Scope. ADV agrees to provide to HIN maintenance and support services
during the Warranty Period and thereafter, provided that HIN has paid the annual
maintenance and support fee specified in the Order Form. These services shall
include at a minimum (a) telephone support; (b) corrections of errors and (c) all
upgrades (the "Maintenance and Support Services"). The hours of support,
response times and other terms and conditions governing the provision of
Maintenance and Support Services are set forth in the Order Form. ADV shall
have no liability or responsibility for problems with the Software caused by
misuse, improper installation, alteration or modification by HIN, or for problems
arising from the malfunction of HIN's equipment or software not supplied by
ADV. “Warranty Period” means the warranty period specified in the applicable
Order Form and if no period is specified, ninety (90) days. Unless otherwise
provided in the Order Form, the Warranty Period shall commence upon
Acceptance.
B.
Term. Unless otherwise provided in the Order Form, the initial term for
maintenance shall commence upon delivery of the Software and continue for a
period one (1) year following Acceptance. Thereafter, maintenance shall
automatically renew for successive one year periods unless terminated by HIN
upon at least thirty (30) days written notice prior to the expiration of the initial
term or renewal period.
C.
Supported Platform. ADV shall support the Platform for the minimum
period specified on the Order Form. Thereafter, ADV may discontinue support of
the Platform, or any subsequent Platform to which HIN may move, upon no less
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than eighteen (18) months prior written notice. “Platform” means the computer
equipment and operating system specified on the Order Form.
D.
Minimum Support Commitment. Notwithstanding anything in this
Agreement to the contrary, ADV shall provide support of the Software for a
minimum period of five (5) years from the date of the Order Form. As used in
this Section, "support" means the provision of upgrades of the Software on a
regular and ongoing basis.
E.
Fee. The fee for the initial term shall be as specified in the Order Form.
The maintenance fee shall be invoiced annually prior to the commencement of the
maintenance period. The maintenance fee for any renewal term may be increased
by ADV upon at least sixty (60) days written notice prior to the commencement
of the renewal period; provided, however, that the increase shall not be greater
than the lesser of (i) the corresponding increase in the CPI for the prior 12 month
period; or (ii) 3%. “CPI” means the Consumer Price Index for all Urban
Consumers (Index base: 1982/1984 = 100; Index Components: All Items)
published by the Bureau of Labor Statistics, United States Department of Labor or
its nearest equivalent as mutually agreed upon by the parties if not so published.
6.
Term and Termination.
A.
Unless terminated as provided herein, this Master Agreement for
Approved Vendor shall be for an initial term of five (5) years, effective as of the
date of this Agreement. The initial term may be extended for consecutive one (1)
year periods unless either party provides written notice of its intent to terminate
this Agreement not less than sixty (60) days before the end of the then current
term.
B.
HIN may terminate this Agreement without cause upon thirty (30) days
written notice. Unless otherwise provided in the SOW, HIN shall have the right
to suspend performance or terminate Work under any SOW upon at least thirty
(30) days’ prior written notice to ADV. In the event of such termination, HIN
agrees to pay ADV for all of ADV’s Work performed up to the date of
termination.
C.
Either party may terminate this Agreement for a material breach, provided,
however, that the terminating party has given the non-terminating party at least
twenty-one (21) days prior written notice of the breach and an opportunity to cure
the breach. Termination for breach shall not preclude the terminating party from
exercising any other remedies for such breach.
D.
If HIN terminates this Agreement or any SOW under this Section 6, ADV
shall advise HIN of the extent to which performance has been completed through
the termination notice date, and collect and deliver to HIN all deliverables,
including, without limitation, all work-in-progress.
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E.
Notwithstanding any provision of this Agreement to the contrary, in the
event ADV is no longer accredited under the Direct Trusted Agent Accreditation
Program (“DTAAP”) and/or the Electronic Healthcare Network Accreditation
Commission (“EHNAC”) ADV shall immediately notify HIN and ADV
acknowledges and agrees that HIN may immediately terminate this Agreement
and any SOWs or Order Forms entered into between the parties.
F.
In the event of termination under Section 6.E, HIN shall refund to HIN a
pro rata amount for any prepaid undelivered Work and shall provide reasonable
assistance to HIN and HIN’s participating organizations to migrate from ADV to
a replacement Health Information Service Provider.
7.
Ownership of Intellectual Property.
A.
“Intellectual Property Rights” means domain names, company names,
patents, copyrights, trademarks, trade names, trade dress, trade secrets, knowhow, concepts, ideas, discoveries, inventions (whether or not patentable),
processes, developments, suggestions, materials, improvements, works of
authorship, artwork, HIN Data, Software, Documentation, intellectual property,
rights in other tangible and intangible assets of a proprietary nature, and the like.
“HIN Data” means all user statistical information such as usage or traffic patterns
generated by participating organizations and all electronic data entered into the
hosted environment by HIN or any of its participating organizations.
B.
Unless otherwise provided in the SOW, any and all work produced by
ADV in the course of ADV’s performance of the Work, including, without
limitation, all underlying Intellectual Property Rights (the “Work Product”) or
the like shall be the sole and exclusive property of HIN, and ADV shall have no
rights to retain or use any of the Work Product. ADV shall disclose promptly in
writing to HIN all inventions, improvements, and developments and materials.
C.
ADV represents, warrants, and agrees that any and all Work Product shall
be original (except as may be otherwise provided in Section 7.G) and shall not
infringe on any Intellectual Property Rights of any third person.
D.
At the request and expense of HIN, ADV shall make, execute, and deliver
all application papers, assignments, and instruments, and perform, or cause to be
performed, such other lawful acts as HIN may deem necessary or desirable in
making or prosecuting applications, domestic or foreign, for patents or copyrights,
and any reissues and extensions related to such inventions, improvements, and
developments. ADV shall assist and cooperate with HIN and its attorneys in any
controversy or legal proceedings relating to such inventions, improvements, and
developments, and materials or to the patents or copyrights that may be procured
thereon. The decision on whether to file a patent or copyright application with
respect to any invention, improvement, or development and the manner of
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preparation and prosecution of any patent or copyright application shall be wholly
within the discretion of HIN.
E.
All Work Products of the categories identified in Section 101 of the
federal Copyright Act of 1976 (the “Copyright Act”) shall be considered “works
made for hire” as defined in Section 101. HIN shall own the copyright, the right
to register and renew the copyright, the right of first publication, the reproduction
right, the performance right, and all other rights provided by the Copyright Act in
each “work made for hire.”
F.
ADV assigns to HIN all common law and statutory copyrights, all rights
to register and renew the copyright, all rights of first publication, all reproduction
rights, all performance rights, and all rights provided by the Copyright Act and by
the laws of all foreign countries in all Work Product that is not described in
Section 7.E. ADV shall execute a written assignment and other documents
required by HIN for each Work Product described in this Section 7.F.
G.
ADV may include preexisting work or materials in a Work Product only if
they are provided by HIN or if they are owned or licensable without restriction by
ADV. To the extent that preexisting work or materials owned or licensed by
ADV are included in a Work Product, ADV shall identify any such work or
materials prior to commencement of the services involving such works or
materials. ADV grants to HIN an irrevocable, nonexclusive, worldwide, royalty
free right and license to use, execute, reproduce, display, perform and distribute
(internally and externally) copies of, and prepare derivative works based upon,
such work and materials, and the right to authorize others to do any of the
foregoing. ADV shall be responsible for obtaining any consent of third parties
necessary for HIN to fully exercise its rights hereunder.
H.
HIN Data
(i)
Ownership. As between HIN and ADV, all HIN Data shall be and
remain the sole and exclusive property of HIN.
(ii)
Limited License. HIN grants to ADV a non-exclusive license to
including a license to store, record, transmit, maintain, and display HIN Data only
to the extent necessary to provide services under this Agreement. Except as
permitted in this Agreement, ADV will not edit, delete, or disclose the contents of
HIN Data unless authorized in writing by the HIN.
8.
Confidential Information.
A.
The parties acknowledge the existence of that Mutual
Confidentiality and Non-Disclosure Agreement (the “NDA”) executed
between the parties dated ___________________, a copy of which is
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attached hereto and incorporated herein as Exhibit C. The parties agree
that the NDA is hereby republished and shall remain in full force and
effect according to its terms and shall govern all disclosures of
Confidential Information (as defined in the NDA) between the parties with
respect to this Agreement and any Statements of Work hereunder. The
parties agree that the terms of this Agreement and each Statement of Work
shall be deemed Confidential Information under the NDA and subject to
the non-disclosure and non-use obligations of the NDA.
Protected
Health Information shall not be considered to be Confidential Information.
B.
ADV acknowledges that in the course of performing the SOW(s) it
may have access to Protected Health Information, the terms and conditions
of the disclosure, and the restrictions on any further disclosure, shall be
subject to HIPAA, HITECH and other applicable laws and standards as
described in Section 26 below.
9.
Representations and Warranties.
A.
Work. ADV warrants that ADV's Work will be provided in a workmanlike
manner, and in conformity with generally prevailing industry standards. ADV warrants
that the services and Work provided does and will conform to and comply with all
applicable laws and standards including those described in Section 26 below, and that
ADV has obtained or will obtain all permits, licenses, certificates and other
authorizations necessary to commence and complete its work.
B.
Specifications. ADV represents and warrants that the Software will operate in
conformance with the Specifications during the Warranty Period and thereafter for so
long as HIN is purchasing Maintenance and Support Services from ADV. In addition,
ADV represents and warrants that all Services shall meet the specifications as set forth in
the applicable SOW. “Specifications” means the Documentation and any additional
technical or performance criteria set forth in the Order Form, provided as part of an RFP
or proposal, or subsequently agreed to in writing by the parties.
C.
Right to Grant License. ADV represents and warrants that it has the right to
grant a license to the Software free and clear of any liens and encumbrances.
D.
Integration. ADV represents and warrants that the Software may and shall be
fully integrated with the system components included as part of any integration services
to be performed by ADV.
E.
Compliance with Standards and Laws. ADV represents and warrants that the
Software will, during the Warranty Period and for so long as HIN in on Maintenance and
Support Services, comply with any applicable industry standards and Requirements of
Law. In addition, the ADV represents and warrants that it and the Services shall comply
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with any applicable industry standards and Requirements of Law. “Requirements of
Law” shall mean those federal and state governmental and quasi-governmental regulatory
requirements, statutes, ordinances, policies, edicts, rules, guidelines, or standards related
to HIN’s use of the Services or the functions of the Software including, without
limitation, all standards or guidelines established by committees, agencies or other
standard-setting organizations implementing regulatory requirements, policies, or
operating standards adopted by the healthcare industry and any other such modifications
or changes that may be required to meet the then-current, industry-accepted specifications
and all federal, state, and regulatory requirements that relate to HIN and its participating
organizations. Without limiting the generality of the foregoing, Requirements of Law
shall mean those requirements shall include, without limitation, all federal and state
standards and regulations regarding electronic data interchange transactions (including,
without limitation, 45 CFR Part 142 and any other standards or regulations addressing the
mandates of Section 262 (Administrative Simplification) of the Health Insurance
Portability and Accountability Act of 1996).
F.
Documentation. ADV represents and warrants that the Documentation is and
shall at all times during the term of this Agreement remain complete and current with the
version of the Software then in use by HIN and in substance at least as equal to
comparable material in use in the industry.
G.
Platform. ADV represents and warrants that the Software shall operate on or
with the Platform.
H.
Service Levels. In the event the Software is provided to HIN in a Software as a
Service format (“SaaS Services”), ADV represents and warrants that the Software hosting
will meet or exceed the service level agreements set forth in the attached Exhibit F.
I.
Security. ADV represents and warrants that ADV will use all commerciallyreasonable efforts to ensure that ADV’s System is protected against security risks and
vulnerabilities, including, but not limited to: (a) implementing security procedures that
are, at a minimum, at least as secure as those available in the most-recent versions of
commercially available web hosting products, including patches, fixes or updates thereto
within 24 hours of release to the general public; (b) secure SSL encryption of all data
transmissions; (c) password protected access and user IDs; (d) automatic log off if the
System is idle or no action is taken after a specified period of time; and (e) isolation of
HIN Data into separate databases. ADV will immediately notify HIN of any actual or
threatened security breach in or unauthorized or suspicious access to the
telecommunications systems that would adversely affect HIN’s systems or access to the
System. “System” means all software, equipment, network resources, data or materials
owned or controlled by ADV and used to provide the SaaS Services.
10.
Indemnification. ADV, at its sole expense, agrees to defend, hold harmless and
indemnify HIN, its officers, directors, employees, agents, sub-state HIE’s, stakeholders and any
of HIN’s participating organizations from and against any claim, suit or action brought against
HIN that is based on a third party claim that any Software, Work Product, Documentation,
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deliverables or intellectual property provided by ADV infringes any copyrights, trade secrets or
patent and (ii) from and against all claims, losses, expenses, liabilities, demands, obligations and
damages of every kind and nature (including, without limitation, reasonable attorney fees and
expenses) (“Losses”) arising out of or related to any act or omission of ADV or any breach of
this Agreement by ADV.
HIN, at its sole expense, agrees to defend, hold harmless and indemnify ADV, its
officers, directors, employees and agents from and against any third party Losses arising out of
or related to any act or omission of HIN or any breach of this Agreement by HIN.
11.
Release. ADV agrees to and does hereby release HIN from any and all liability
for damages, claims or liability which arises from ADV’s negligent or wrongful actions or
omissions in performing the services set forth in this Agreement including, but not limited to,
any health reporting requirements, confidentiality or maintenance of confidential records and
transmission of electronic medical records.
12.
Personnel.
A.
All personnel assigned by ADV to perform under this Agreement shall be
reasonably acceptable to HIN. Upon request by HIN, ADV shall remove any
employee, agent or subcontractor reasonably determined by HIN to be
unacceptable.
B.
All personnel assigned by ADV to perform under this Agreement shall
have suitable experience and qualifications required to perform such services in
accordance with the standards established in this Agreement and the applicable
SOW. ADV shall not bill HIN for any on-the-job training.
C.
ADV will ensure that the ADV personnel, while assigned to provide
services or otherwise visiting or accessing any HIN facility will (a) comply with
HIN’s then-current environmental, health, safety, and security policies and
procedures and other rules and regulations applicable to HIN personnel at those
facilities; (b) comply with all reasonable requests of HIN personnel, as applicable,
pertaining to personal and professional conduct; (c) submit to appropriate
background checks; (d) upon request by HIN, make, execute, deliver, and
perform, or cause to be performed, such lawful acts as HIN may deem necessary
or desirable, including, but not limited to, providing any releases required under
the Fair Credit Report Act, such that HIN can adequately and fully conduct social
engineering security testing upon ADV and ADV personnel; (e) receive any
necessary training, provided by the ADV and at ADV’s expense, required under
applicable laws and standards, including, but not limited to, HIPAA training for
any personnel with access to PHI; and (f) otherwise conduct themselves in a
professional and businesslike manner. If HIN so requests, based on a reasonable
belief that ADV has breached this obligation, ADV will immediately remove any
such ADV personnel from HIN’s account and any HIN facility and prevent such
ADV personnel from providing services.
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13.
Independent Contractor. The relationship between the parties is that of an
independent party. Nothing contained in this Agreement or in the course of conduct between the
parties will be considered to form or constitute a partnership, joint venture, agency, employment
or other relationship except that of an independent contractor. In the performance of the services
under this Agreement, ADV is an independent contractor with authority to control and direct the
performance of its services.
14.
Taxes, Benefits and Expenses. ADV is responsible for all expenses connected
with its performance of the services to HIN under this Agreement unless noted otherwise in a
SOW. ADVs shall be solely responsible to pay all applicable federal, state and local taxes and to
file all related returns and reports in connection with the performance of the Work for HIN under
this Agreement. ADV acknowledges that HIN has no obligation to and will not withhold taxes of
any kind or nature with respect to the services performed by ADV. ADV shall indemnify and
hold HIN harmless to the extent of any obligation of the Company to pay any taxes, whether
income or otherwise, including any withholding taxes, social security taxes, unemployment
taxes, or disability insurance or similar items in connection with payments made to the ADV by
HIN.
15.
Insurance. ADV shall purchase and maintain throughout the term of this
Agreement, statutory worker’s compensation and commercial general liability insurance
covering bodily injury, property damage, premise operations, completed operations, and
contractual liability, and if requested, media liability and errors and omissions liability, each
insurance policy shall have limits reasonably satisfactory to HIN. ADV shall also maintain
automobile insurance coverage on vehicles its employees use in the course of performance of
services to HIN under this Agreement. All insurance shall be in an amount, with the coverage
and from insurance companys satisfactory to HIN. ADV shall maintain all coverages without
interruption from the date of this Agreement until the date of termination of this Agreement. At
the request of HIN, HIN shall be added as an additional named insured on any insurance policy.
Additionally, ADV shall furnish HIN with a copy of certificates of insurance, which shall
contain an obligation of the carrier to notify HIN at least thirty (30) days in advance of any
cancellation or non-renewal of the policy.
16.
Non-Solicitation. ADV agrees that during the term of this Agreement and for a
period of one year following its termination, ADV will not employ, or solicit for employment
any current or former employee of HIN, solicit any business with any current or former
employee of HIN, or contract with any customer of HIN or perform any services that are in
direct competition with the services of HIN or the services provided pursuant to the terms of this
Agreement.
17.
Reasonableness of Agreement. ADV acknowledges and agrees that ADV has
weighed all the facts, conditions and circumstances pertaining to this Agreement, has been
afforded an opportunity to consult with counsel of its choice concerning this Agreement and its
legal effect, and acknowledges that all of the provisions of this Agreement are reasonable. ADV
shall not contest the validity of any provision of this Agreement and waives any and all rights
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that ADV may have to bring any claim, action or suit or to raise any defense regarding the
validity and reasonableness of this Agreement or any of its provisions.
18.
Assignment. The rights and obligations conferred under this Agreement may not
be assigned by either party without the prior written consent of the other party, which consent
shall not be unreasonably withheld. Any attempt to assign the Agreement in violation of this
provision is null and void.
19.
Notices. Any notice required or permitted to be given under this Agreement must
be in writing and may be delivered in person, by registered mail, by email for which receipt is
acknowledged, or by overnight carrier addressed to the respective party at the address set forth in
this Agreement, or such other address as may be provided by a party to the other by written
notice. Any notice will be considered to have been given when personally delivered or five (5)
business days after mailing or two (2) business day after if sent by overnight carrier.
20.
Binding Agreement. This Agreement shall be binding upon and inure to the
benefit of and be enforceable by the successors and assigns of the parties.
21.
Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Michigan.
22.
Waiver. The failure of either party to require the performance of any term or
obligation of this Agreement, or the waiver by either party of any breach of this Agreement shall
not prevent any subsequent enforcement of any term or obligation or be deemed to be a waiver
of any subsequent breach.
23.
Severability. If any provision of this Agreement is held to be invalid or
unenforceable for any reason, the remaining provisions shall continue to be valid and
enforceable. If a court of competent jurisdiction finds that any provision is invalid and
unenforceable as written, that provision will be deemed modified in a manner consistent with the
intent of the original provisions, so as to make it valid and enforceable.
24.
Subcontract. ADV agrees to notify HIN in writing if it intends to subcontract
any part of the Work to an independent contractor. HIN reserves the right to refuse to allow
ADV to subcontract specific work or refuse a specific subcontractor.
25.
Arbitration. Any dispute arising under this Agreement shall be subject to
binding arbitration by a single Arbitrator, in accordance with its relevant industry rules, if any.
The parties agree that this Agreement shall be governed by and construed and interpreted in
accordance with the laws of Michigan. The arbitration shall be held in Michigan. The Arbitrator
shall have the authority to grant injunctive relief and specific performance to enforce the terms of
this Agreement. Judgment on any award rendered by the Arbitrator may be entered in any Court
of competent jurisdiction.
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26.
Flow-Down Terms. The Flow-down terms required by the State of Michigan, set
forth on Exhibit E of the Agreement, apply to this Agreement. In the event of any conflict
between the terms of this Agreement and Exhibit E, the terms of Exhibit E shall control.
27.
Protected Health Information. ADV may, in the course of performing the
services set forth in this Agreement, have access to certain Protected Health Information (PHI),
the terms and conditions of the disclosure of which is subject to the Health Insurance Portability
and Accountability Act (HIPAA), the American Recovery and Reinvestment Act of 2009
(ARRA), and the Health Information Technology for Economic and Clinical Health Act
(HITECH) and the regulations promulgated thereunder. If ADV will have such access, ADV
agrees to execute the HIPAA Addendum attached hereto as Exhibit D contemporaneously with
this Agreement. Furthermore, ADV agrees to execute any other documents that may be
reasonably requested by HIN for purposes of HIN or its end-users efforts to comply with
HIPAA. ADV will comply with all applicable laws and standards necessary to perform this
Agreement and ADV will be solely responsible for any violations, breach or failure to abide such
applicable laws and standards, including any civil or criminal penalties. Applicable laws and
standards include Federal, State and local laws, statutes, acts, codes, regulations and judicial or
administrative decisions promulgated by any governmental agency, including the State of
Michigan, the Michigan Health Information Technology Commission and any Federal, State or
local action having the affect of the law, as any of the foregoing may be amended, modified,
codified, re-enacted, promulgated or published, in whole or in part, in effect from time to time.
Without limiting the generality of the foregoing, this would include HIPAA, ARRA, HITECH,
the Rehabilitation Act of 1973, the Anti-Lobbying Act as revised by the Lobbying Disclosure
Act, Section 503 of the Department of Labor, Health and Human Services, and Education and
Related agencies, the Omnibus Appropriations Act, the Export Administration Act of 1979 and
regulations promulgated thereunder, and the Michigan Identity Theft Protection Act.
28.
Cooperation. HIN provides services that are funded, in part, under the American
Recovery and Reinvestment Act of 2009 and is required to file certain financial and
informational reports. HIN is responsible for insuring that all applicable requirements, including
those set forth in ARRA are met. During the term of this Agreement, ADV agrees to reasonably
cooperate with HIN in order to meet the ARRA reporting requirements as imposed by HIN, its
auditors, accountants, consultants, the State of Michigan and the Office of the National
Coordinator for Health Information Technology.
29.
Communications. Upon receipt of any request for information from HIN, in any
form whatsoever, whether written or oral, ADV shall, within twenty-four (24) hours confirm
receipt of such communication. Within two (2) business days of receipt of such communication
ADV shall either (a) reasonably answer the HIN request for communication; or (b) provide a
specific date by which time such answer shall be provided to HIN. Upon request by HIN, ADV
shall, within two (2) business days of receipt of request, provide HIN with a complete summary
and status report of all known, open items and/or work assignments.
30.
Audit. ADV shall maintain complete and accurate records of the supporting
documentation for all charges, and all transactions, authorizations, changes, implementations,
reports, filings, returns, analyses, procedures, controls, records, data, or information created,
12
generated, collected, processed or stored by ADV in the performance of its obligations under this
Agreement (“Contract Records”). ADV shall maintain such Contract Records in accordance
with applicable laws and standards. HIN shall have the right, on at least thirty (30) days’ prior
written notice to ADV, to conduct an audit during ADV’s normal business hours to verify
ADV’s compliance with the terms of this Agreement.
31.
Headings. The headings of this Agreement are for convenience of reference only
and have no legal affect.
32.
Nondiscrimination. In the performance of this Agreement, ADV agrees not to
discriminate against any employee or applicant for employment or service delivery or access
with respect to its hire, tenure, terms, conditions or privileges of employment, programs and
services provided or any matter directly or indirectly related to employment, because of race,
color, religion, national origin, ancestry, age, sex, height, weight, marital status, physical or
mental disability unrelated to the individual’s ability to perform the duties of a particular job or
position or to receive services. ADV further agrees that it shall not discriminate against minority
owned and women owned businesses and businesses owned by persons with disabilities.
33.
Debarment and Suspension. ADV represents and warrants that to the best of its
knowledge it, and none of its employees providing services under this Agreement: (a) are not
presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily
excluded from covered transactions by any federal department or contractor; (b) have not within
a three (3) year period preceding the effective date of this Agreement been convicted of or had a
civil judgment rendered against it for the commission of fraud or criminal offense in connection
with obtaining, attempting to obtain, or performing a public (federal, state or local) transaction or
contract under a public transaction: violation of a federal or state anti-trust statute; or
commission of embezzlement, theft, forgery, bribery, falsification or destruction of records,
making false statements or receiving stolen property; (c) are not presently indicted or otherwise
criminally or civilly charged by a government entity with the commission of any of the offenses
enumerated above and (d) have not within a three (3) year period preceding the date of this
Agreement had one or more public transactions terminated for cause or default.
34.
Entire Agreement. This Agreement, together with the attached Exhibits
constitute the entire agreement between the parties with respect to the subject matter hereof, and
supersedes all prior agreements, proposals, negotiations, representations or communications
relating to the subject matter. Both parties acknowledge that they have not been induced to enter
into this Agreement by any representations or promises not specifically stated herein.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date first set
forth above.
Michigan Health Information Network Shared
ADV
Services
By:_______________________________
By: _________________________________
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Printed Name: _______________________
Title::___________________
Date: ______________________________
Email: _____________________________
Tim Pletcher, Executive Director
Date: _________________________________
Email: ________________________________
14
Exhibit A
Statement of Work
STATEMENT OF WORK – [Company Name] # [N]– [General Name For Project]
PREAMBLE
This Statement of Work (“SOW”) accompanies the following agreement:
____________________________(choose one from: MMA, QDSOA, VQDSOA, Participant
Agreement, or Basic Contract for Consulting Services) (“Agreement”) that has been executed by
the parties. All statements of fact contained in this SOW are subject to the terms and conditions
set forth in the Agreement. The terms and conditions set forth in the Agreement control in the
event of any inconsistency between such terms and conditions and the matters set forth in this
SOW. In this SOW, the undersigned Contractor (“Contractor”) will perform work for Michigan
Health Information Network Shared Services (“HIN” or “Client”) as described herein as the
Services (“Services”) and Deliverables (“Deliverables”).
1.0
Project Deliverables
Subject to timely payment, the deliverables described hereafter (the "Deliverables") will be
provided to Client in final form upon completion of the tasks and Services described in this
SOW. Preliminary or draft versions of these Deliverables or written summaries or presentations
will be made available to Client for review during the course of the Project upon request by the
Client Executive Director (“CED”), Client Associate Director (“CAD”). The CED or the CAD
may direct Contractor to report to a Client-specified Project Manager during the Project.
During the period [mm/dd/yyyy start date] to [mm/dd/yyyy end date], Contractor will deliver to
Client [General Name for Project, same as in title above] the following Deliverables:
1. Detailed description of deliverable 1;
2. Detailed description of deliverable 2;
3. Detailed description of deliverable …;
N. Other tasks as specified by the CAD or CED from time to time. [this deliverable
must remain in all SOWs]
Work on the above activities will begin only upon receipt of written/email authorization from the
CED or CAD. Upon receipt of email authorization from the CAD or CED, the Contractor will
start work immediately upon the activities as per the terms herein. Upon receipt of email
notification from the CAD or CED Contractor will stop work immediately upon the Services and
Deliverables as per the terms herein.
2.0
Price and Payment
Contractor is being hired to perform the Services and provide the Deliverables according to this
SOW. Services shall be provided (check one):
 subject to an estimate of total costs to complete this work with a not to exceed (“NTE”) total
of $[xxx].00 (i.e. the total amount billed for this SOW may not exceed $[xxx].00). Contractor
9631666
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will maintain daily records of hours and tasks performed for its personnel, which will be
submitted to Client with each invoice. Contractor total number of hours billed against the NTE
shall not be less than [xxx] hours. The Services or Deliverable shall be provided on a time-andmaterial basis for not more than the NTE. Contractor shall use all reasonable efforts to complete
the Services and Deliverables for less than the NTE. Special tasks outside the Scope of
Work/Project Deliverables in section 1.0 shall be billed at the Contractor’s actual rate and
recorded/documented as required herein (or at $______/hour) but in no event shall the NTE be
exceeded under this SOW.
 at a time and material rate of $__________/hour Contractor will maintain daily records of hours
and tasks performed for its personnel, which will be submitted to Client with each invoice.
 at a fixed fee of __________.00. Contractor will be paid upon completion of implementation
milestones and sign-off from Client Project Manager. Client shall not be liable for any
additional charges in the event Contractor’s actual costs exceed the fixed fee. Specific
implementation milestone, payment amount and anticipated completion dates are outlined below:
3.0
Invoices
Services will be invoiced monthly by email to accounts-payable@mihin.org by the 24th day of
the month in order to receive payment according to the schedule below. All invoices shall
plainly indicate the staff, hours, and rates billed.
4.0
Payment
Payment from Client is due 60 days after receipt of invoice if the invoice was sent appropriately
per section 3.0. Client may not withhold any undisputed amounts due hereunder and Contractor
reserves the right to cease work without prejudice if amounts are not paid when due. In the event
of a good faith dispute about an invoiced amount, Client may withhold the disputed amount
while the parties attempt to resolve the dispute. Client’s withholding of that payment will not
constitute a breach of this SOW or the MMA or be grounds for Contractor to suspend its
provision of Services, it being recognized and understood by Contractor that provision thereof is
critical to Client’s business
5.0
Expenses and Taxes
Prices quoted for Services do not include and Client will reimburse Contractor for its reasonable
and necessary cost of Non-local travel and out-of-pocket costs for photocopying, overnight
courier, unusual long distance telephone and the like. Non-local travel is defined as travel to
locations other than Client’s primary offices that exceeds 10 miles. All Non-local travel and
out-of-pocket expenses must be approved by Client before commencing. Upon request by Client,
Contractor shall provide copies of documentation for such expenses. Any applicable sales tax is
to be paid by Contractor. Travel time is not billable hourly time.
6.0
Intellectual Property and Documentation Requirements
Pursuant to the Agreement all work products developed under this SOW are instantly the
property of HIN.
16
Every page of every work developed under this SOW, including but not limited to electronic
documents, paper documents, word documents, power point slides, diagrams, software source
code files, and every other written document shall bear the following:
Copyright yyyy Michigan Health Information Network Shared Services
MiHIN Confidential – Proprietary - Restricted
where yyyy is the calendar year such as 2013 or 2014 in which the work was first developed.
No work product under this SOW shall bear or contain any Contractor logo or Contractor
identification information of any kind without explicit written permission from both the CED
and CAD.
All slide presentations must use the official Client-approved master slide template and format.
File names for all non-source-code documents communicated to HIN shall follow the following
convention:
“MiHIN [‘content description’] v[N] mm-dd-yy.ext” where:
‘content description’ is 20 characters or less describing what is in the file
vN is the version number, starting with v1; version numbers are incremented by 1 every
time the file is changed, i.e. v2, v3, v4, v5. Decimal points must not be used in file version
numbers. Version numbers shall strictly be monotonically increasing integers.
mm-dd-yy is the hyphenated month, day, and two-digit year of the latest revision of the
document, appearing IN the file name.
.ext is the regular three letter file-type extension.
Other than as indicated above, hyphens and underscores shall not be used in or appear in
non-source code document names.
Source code document names shall follow the convention except no blanks shall occur in
source code file names; instead underscores shall be used instead of blanks. Source code file
names shall follow convention rules established by the Client Project Manager for each Project.
Contractor company or personnel names shall not appear anywhere in any deliverable files or
filenames.
Example correct filenames:
MiHIN Complex Diagram For Widgets v3 09-17-12.vsd
MiHIN White Paper On Security v21 09-16-12.doc
MiHIN Presentation on Architecture v12 01-07-13.ppt
Example incorrect filename:
Bad_Company_document_version_6_0_Jan 12 2013.doc
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Contractor shall have access to, and shall maintain, store, and routinely update timely copies of
all electronic documents/deliverables for this SOW on a Backpack page provided by Client.
Software source code shall be stored in a BitBucket account provided by Client.
7.0
Flow down terms
The Flow-down terms required by either the federal government or the State of Michigan, set
forth on the attached Exhibit A, apply to the Services performed under this SOW. In the event of
any conflict between the terms of this SOW and Exhibit A, the terms of Exhibit A shall control.
8.0
Other Terms
8.1 Non-Solicitation. Contractor agrees that during the term of this SOW and for a period
of one year following its termination, Contractor will not employ, or solicit for employment any
current or former employee of Client, solicit any business with any current or former employee
of Client, or contract with any customer of Client or perform any services that are in direct
competition with the services of Client or the services provided pursuant to the terms of this
Agreement.
IN WITNESS WHEREOF, the parties have executed this SOW on the date first set forth above.
Contractor ___________________________
By:_________________________________
Title: Principal
Date: _________________________
Client / Michigan Health Information Network
Shared Services
By: _________________________________
Tim Pletcher, Executive Director
Date: _______________________
18
ORDER FORM TO
MASTER AGREEMENT FOR
APPROVED DIRECT VENDOR
This Order Form is made and entered into pursuant to the terms and conditions of a certain Master
Agreement for Approved Direct Vendor dated _______________, 20_____ (the "Agreement") , by and
between HIN entity and the undersigned ADV.
Software and
License Fees
Quantity
Item No./Description
Price/License Fee
Total:
License Fees
Payment Schedule
_____% upon execution of this Order Form
_____% upon installation of the Software
_____% upon Acceptance (as defined in Section 4 of the Agreement)
Additional Licenses
License Type
Check one:
 Server License – licensed number:
 Workstation License - licensed number:
 Concurrent User License - licensed number:
 Named User License - licensed number:
 Other (specify):
Deliverables/Specifi
cations
9631666
List any additional technical or performance criteria that the Software must meet
(e.g. RFP/RFI, proposals, marketing materials):
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Delivery Date
1.
2.
3.
4.
5.
The Software shall be delivered on or before:
Acceptance Testing
Length of the Test Period:
Warranty Period
Length of the Warranty Period:
Maintenance Fee
$___________ for the initial term as specified in Section 5.
Maintenance and
Support Services
Platform
Description:
Object Code/Source
Code
Services and
Services Fees
Minimum support period:
Check one:
Object Code only will be provided.
Object Code and Source Code will be provided.
Object Code only will be provided. HIN shall have the right to access the
Source Code in accordance with the terms of the attached escrow agreement
with:
.
Description of Services (describe in detail):
Training (describe in detail):
Other (describe in detail):
Services Fees:
Payment Schedule:
Licensure &
Qualifications
20
Specify the department and address where invoices should be sent:
Invoicing
Information
Additional Term
and Conditions (if
any)
The parties have executed this Order Form as of the dates set forth below their respective
signatures.
HIN
ADV
By:
By:
(Signature)
(Signature)
(Type or Print Name)
(Type or Print Name)
Its:
Its:
(Type or Print Title)
Date:
9631666
(Type or Print Title)
Date:
-21 of 43-
Exhibit C
MUTUAL CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT
Effective as of: _________________________ (“Effective Date”)
By and Between
And
Michigan Health Information Network Shared Services
(Type or Print Name of Party)
120 W. Saginaw
(Address)
East Lansing, Michigan 48823
(City)
Attention: Jeff Livesay
Phone No.: 248.802.8844
E-Mail Address: livesay@mihin.org
(State)
(Zip)
Attention:
Phone No.: (
)
E-Mail Address:
The parties to this Agreement (individually “Party” and collectively “Parties”) have disclosed and/or desire to
disclose certain confidential information to each other in connection with an existing or prospective business
relationship. To protect the information, and for other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the Parties agree as follows:
know-how, processes, templates, apparatus, equipment,
algorithms, formulas, ingredients, software programs,
software source documents, and formulas, (g)
information from third parties that Discloser is
obligated to treat as confidential, and (h) information
that is derived from Confidential Information (for
example through testing, analysis or processing).
1. Discloser and Recipient. As to any particular
Confidential Information (defined below), the
Discloser is the Party disclosing the Confidential
Information and the Recipient is the Party receiving the
Confidential Information.
2. Confidential Information.
As used in this
Agreement, “Confidential Information” means any
information (whether tangible or intangible, printed,
electronic, or otherwise) and items embodying
information (including graphs, photographs, samples,
working models, and prototypes) at any time furnished
by either Party to the other, or to which either Party is
exposed, whether before or during the term of this
Agreement, including, without limitation, (a) the
identities of or information concerning Discloser’s
customers, suppliers, or other business partners, (b)
information concerning Discloser’s business and
business plans, (c) Discloser’s marketing plans and
materials, (d) financial information concerning
Discloser and its affiliates, (e) information concerning
Discloser’s pending patents or other trade secrets, (f)
Discloser’s business techniques and methodologies,
operating procedures, systems operations, management
tools, manuals, sketches, drawings, designs and
specifications, data models, concepts, ideas, inventions,
3. Restrictions on Use; Non Disclosure. Except as
otherwise expressly permitted in writing by an
authorized representative of Discloser, Recipient
agrees that it will not:
(a) use the Confidential Information of Discloser
for any purpose other than the purpose for which
Discloser disclosed the information;
(b) directly or indirectly copy, transfer, or
otherwise disclose or reveal Confidential Information
of Discloser to any person or entity other than its
employees, directors, officers, agents and consultants
who (i) have a need to know to further the purpose of
this Agreement; (ii) have been advised of the
information’s confidential status; and (iii) are subject to
legally binding obligations of confidentiality as to such
information no less restrictive than those contained in
this Agreement; provided, however, that Recipient
shall at all times be fully responsible to Discloser for
22
the compliance by such persons and entities with this
Agreement; or
(c) if requested by Discloser, disclose its business
relationship with Discloser.
4. Exceptions. The obligations set forth in Section 3
above shall not apply to Confidential Information that:
(a) before the time of its disclosure was already in
the lawful possession of the Recipient; or
(b) through no wrongful act of the Recipient, at the
time of its disclosure to Recipient is, or later becomes,
available to the general public; or
(c) Recipient demonstrates with appropriate
written documentation to have been lawfully
independently developed by Recipient without the use
of or reliance upon any Confidential Information of the
other party and without any breach of this Agreement.
5. Standard of Care. Recipient shall use its best
efforts to prevent unauthorized access to and
unauthorized use, dissemination or copying of any
Confidential Information of Discloser. Recipient shall
upon request describe to Discloser the procedures it
uses to protect Confidential Information of Discloser,
and shall thereafter at its own initiative advise
Discloser of any changes in such procedures.
6. Ownership; No License. Each Party shall retain
ownership of all rights, including all intellectual
property rights, in its Confidential Information.
Nothing in this Agreement shall be deemed by
implication or otherwise (a) to convey to Recipient any
right under any patent, patent application, invention, or
other proprietary right owned by Discloser or anyone
associated with Discloser; or (b) to create a
commitment of any kind by either Party to enter into
any further agreement with the other Party.
7. Ownership; No Reverse Engineering. Recipient
agrees not to assert any claim of title or ownership to
the Confidential Information or any portion thereof. If
Confidential Information consists of computer software
disclosed in object code form, Recipient shall not, and
shall not permit any other party to, reverse engineer,
reverse compile, or disassemble such object code, or
take any other steps to derive a source code equivalent
thereof. If Confidential Information is embodied in an
item, such as a model or prototype, then except as
specifically approved in writing by Discloser Recipient
shall not, and shall not permit any other party to,
reverse engineer such item to derive drawings, plans,
or designs, specifications, or other embodied
information, and any such derived information shall
constitute Confidential Information protected by this
Agreement.
8. Disclosures Required by Law. If Recipient
becomes
legally
compelled
(by
deposition,
interrogatory, subpoena, civil investigative demand or
similar process) to disclose any Confidential
Information, then Recipient shall notify Discloser of
the requirement promptly in writing so that Discloser
may seek a protective order or other appropriate
remedy. If a protective order or other remedy is not
obtained, or if Discloser waives in writing compliance
with the terms hereof, then Recipient shall furnish only
that portion of the information which Recipient is
advised by written opinion of counsel is legally
required and to exercise reasonable efforts to obtain
confidential treatment of such information.
9. Duration. The obligations set forth in this
Agreement shall survive indefinitely.
10. Term. This Agreement shall become effective as
of the Effective Date and shall perpetually govern all
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disclosures made between the Parties until such time as
the Parties agree otherwise in a written instrument
signed by both Parties.
provision or provisions of this Agreement shall be held,
for any reason, to be illegal, invalid or nonenforceable,
then the remaining provisions shall nonetheless be
legal, valid and enforceable provisions.
This
Agreement does not reduce or supplant the protections
contained in the Uniform Trade Secrets Act. Notices
required or permitted with respect to this Agreement
shall be given in writing by (a) personal or courier
delivery, (b) registered or certified mail with return
receipt, (c) facsimile transmission with confirmed
receipt, or (d) electronic mail with confirmed receipt.
This Agreement constitutes the entire agreement
between the Parties with respect to the subject matter
of this Agreement and supersedes all earlier
agreements and understandings, oral and written,
between the Parties with respect to the subject matter.
This document may be executed in one or more
counterparts each of which shall be an original, but all
of which together shall constitute one and the same
agreement. Any signature of this Agreement through
facsimile shall constitute execution of this Agreement
by such party.
11. Warranty. Discloser represents and warrants that
it has the right to make the disclosures under this
Agreement and that Recipient’s use of the Confidential
Information in accordance with this Agreement will not
infringe any trademark, copyright, patent, trade secret
or other proprietary right of a third party.
12. Disposal of Confidential Information. Recipient
agrees to return to Discloser all copies of Confidential
Information promptly upon Discloser’s request at any
time. If return is impossible as to any portion of the
Confidential Information, or upon Discloser’s request,
then Recipient shall certify to Discloser promptly that
all such Confidential Information of Discloser,
including all copies thereof, has been totally and
permanently destroyed.
13. On-Site Visits. Any employee, director, officer,
agent or consultant of one Party that enters the
premises or property of the other Party shall follow all
policies and procedures of the other Party in place on
those premises, including, without limitation, all
policies and procedures relating to health, safety and
the protection of confidential or trade secret
information.
17. Governing Law.
This Agreement shall be
governed by the laws of the State of Michigan without
regard to conflicts of law principles.
14. Remedies. The Parties acknowledge and agree that
a breach of this Agreement by either Party will cause
continuing and irreparable injury to the other’s
business as a direct result of any such violation, for
which the remedies at law will be inadequate, and that
Discloser shall therefore be entitled, in the event of any
actual or threatened violation of this Agreement by
Recipient, and in addition to any other remedies
available to it, to a temporary restraining order and to
injunctive relief against the other Party to prevent any
violations thereof, and to any other appropriate
equitable relief.
15. Assignment. Neither Party may assign, delegate
or subcontract any of its rights or obligations under this
Agreement without the prior written consent of the
other Party. Subject to the foregoing, this Agreement
shall inure to the benefit of, and be binding upon, the
successors and permitted assigns of the Parties.
16. Miscellaneous. No failure or delay by Discloser
in exercising any right, power or privilege hereunder
shall operate as a waiver thereof, nor shall any single or
partial exercise thereof preclude any other or further
exercise thereof or the exercise of any right, power or
privilege hereunder. This Agreement may be modified
or waived only by a separate writing signed by
Discloser and Recipient expressly so modifying or
waiving any provision of this Agreement. If any
24
The parties have signed this Agreement as of the dates set forth below their respective signatures.
Michigan Health Information Network Shared Services
(Type or Print Name of Party)
By:
(Signature)
By:
(Type or Print Name)
(Signature)
Its:
Jeff Livesay
(Type or Print Name)
Its:
Associate Director
Date:
2.3.2012
Date:
25
Exhibit D
HIPAA ADDENDUM
The parties to this HIPAA Addendum (“Addendum”) are Michigan Health Information Network
Shared Services (“HIN”) and ______________ (“Approved Direct Vendor” or “ADV”). This
Addendum supplements and is made a part of the Master Agreement for Approved Vendor
between the Parties (“Agreement”).
RECITALS
A.
Under the terms of the Agreement, HIN wishes to disclose certain information to ADV,
some of which may constitute PHI. In consideration of the receipt of PHI, ADV agrees
to protect the privacy and security of the information as set forth in this Addendum.
B.
HIN and ADV intend to protect the privacy and provide for the security of PHI disclosed
to ADV under the Agreement in compliance with HIPAA and the HITECH Act.
C.
As part of HIPAA, the Privacy Rule and Security Standards (defined below) require HIN
to enter into a contract containing specific requirements with ADV before the disclosure
of PHI occurs.
In consideration for ADV’s access to and/or use of PHI for those purposes allowed by HIPAA
and consistent with the services that ADV performs for HIN, and in consideration for the mutual
promises and covenants set forth below, the parties agree as follows:
1. Definitions. As used in this Addendum:
“Breach Notification Standards” means the HIPAA regulations governing notification in the
case of breach of unsecured PHI as set forth at 45 CFR § Part 164, Subpart D, and all applicable
stricter state and federal laws, as they exist now or as they may be amended.
“Designated Record Set” means a group of records maintained by or for HIN that is (i) the
medical records and billing records about individuals maintained by or for HIN, (ii) the
enrollment, payment, claims adjudication, and case or medical management record systems
maintained by or for a health plan; or (iii) used, in whole or in part, by or for HIN to make
decisions about individuals. As used herein, the term “Record” means any item, collection, or
grouping of information that includes PHI and is maintained, collected, used, or disseminated by
or for HIN.
“HIPAA” means the Health Insurance Portability and Accountability Act, Public Law 104-91,
and any amendments thereto.
26
“HIPAA Transaction” means Transactions as defined in 45 CFR § 160.103 of the Transaction
Standards.
“HITECH Act“ means the Health Information Technology for Economic and Clinical Health
Act, found in the American Recovery and Reinvestment Act of 2009 at Division A, title XIII and
Division B, Title IV.
“Individual” shall have the same meaning as the term “individual” in 45 CFR § 160.103 and
shall include a person who qualifies as a personal representative in accordance with 45 CFR §
164.502(g).
“Minimum Necessary” shall have the meaning set forth in the Health Information Technology
for Economic and Clinical Health Act, § 13405(b).
“Privacy Rule” means the Standards for Privacy of Individually Identifiable Health Information
at 45 CFR § Part 160 and Part 164, as they exist now or as they may be amended.
“Protected Health Information” or “PHI” shall have the meaning set forth at 45 CFR § 160.103
of HIPAA.
“Required By Law” shall have the same meaning as the term “required by law” in 45 CFR §
164.103.
“Secretary” means the Secretary of the Department of Health and Human Services or his
designee.
“Security Incident” means the attempted or successful unauthorized access, use, disclosure,
modification, or destruction of information or interference with system operations in an
information system.
“Security Standards” means the Security Standards, 45 CFR § parts 160, 162 and 164, as they
exist now or as they may be amended.
“Transaction Standards” means the Standards for Electronic Transactions, 45 CFR § part 160
and part 162, as they exist now or as they may be amended.
1.1. Terms used, but not otherwise defined, in this Addendum shall have the same
meaning as those used in the Privacy Rule or the HITECH Act, and any amendments or
implementing regulations.
2. Obligations and Activities of ADV.
2.1. ADV agrees that it shall not, and that its directors, officers, employees,
contractors and agents shall not, use or further disclose PHI other than as permitted or required
by this Addendum or as Required By Law.
27
2.2. ADV agrees to use appropriate safeguards in accordance with the Privacy Rule to
prevent use or disclosure of the PHI other than as provided for by this Addendum.
2.3. ADV agrees to mitigate, to the extent required by law, any harmful effect that is
known to ADV of a use or disclosure of PHI by ADV in violation of the requirements of this
Addendum, including, but not limited to, compliance with any state law or contractual data
breach requirements.
2.4. ADV agrees to report to HIN any use or disclosure of the PHI not provided for by
this Addendum of which it becomes aware, or of any act or omission that violates the terms of
this Addendum in accordance with Section 2.17, below.
2.5. ADV agrees to ensure that any agent, including a subcontractor, to whom it
provides PHI received from, or created or received by ADV on behalf of HIN, agrees in writing
to the same restrictions and conditions that apply through this Addendum to ADV with respect
to such information. Further, ADV shall include in its contracts with agents or subcontractors
the right to terminate the contract if the agent or subcontractor commits a material breach under
the contract, and ADV shall exercise such termination rights in the event of a material breach.
ADV shall exercise such termination rights in the event of a material breach. These obligations
do not pertain to subcontractors that act as mere conduits for the transport of PHI but do not
access the information other than on a random or infrequent basis.
2.6. ADV agrees to provide access, at the request of HIN, and in the time and manner
designated by HIN, to PHI in a Designated Record Set, to HIN or, as directed by HIN, to an
Individual in order to meet the requirements under 45 CFR § 164.524 and HITECH Act §
13405(e).
2.7. ADV agrees to make any amendment(s) to PHI in a Designated Record Set that
HIN directs or agrees to pursuant to 45 CFR § 164.526 at the request of HIN or an Individual,
and in the time and manner designated by HIN. If ADV provides Designated Record Sets to
third parties, ADV shall ensure such records are also amended.
2.8. ADV agrees to make its internal practices, books, and records relating to the use
and disclosure of PHI received from, or created or received by ADV on behalf of HIN, available
to the Secretary, in a time and manner designated by HIN or the Secretary, for purposes of the
Secretary determining HIN’s compliance with the Privacy Rule.
2.9. ADV agrees to document disclosures of PHI, and information related to such
disclosures, as would be required for HIN to respond to a request by an Individual for an
accounting of disclosures of PHI in accordance with 45 CFR § 164.528 and any additional
regulations promulgated by the Secretary pursuant to HITECH Act § 13405(c). ADV agrees to
implement an appropriate record keeping process that will track, at a minimum, the following
information: (i) the date of the disclosure; (ii) the name of the entity or person who received the
PHI, and if known, the address of such entity or person; (iii) a brief description of the PHI
28
disclosed; and (iv) a brief statement of the purpose of such disclosure which includes an
explanation of the basis for such disclosure.
2.10. ADV agrees to provide to HIN or to an Individual, in the time and manner
designated by HIN, information collected in accordance with Section 2.9 of this Addendum, to
permit HIN to respond to a request by an Individual for an accounting of disclosures of PHI
during the six (6) years prior to the date on which the accounting was requested, in accordance
with 45 CFR § 164.528.
2.11. In the event ADV receives a subpoena, court or administrative order or other
discovery request or mandate for release of PHI, ADV will respond as permitted by 45 CFR §
164.512(e) and (f).
2.12. ADV will not make any communications to individuals in violation of the
restrictions on marketing in HITECH Act § 13406(a) and without the prior consent of HIN.
2.13. If ADV will communicate with any individuals who are the subject of PHI
originating from or prepared for HIN, ADV agrees to implement procedures to give timely effect
to an individual’s request to receive communications of PHI by alternative means or at
alternative locations, pursuant to 45 CFR § 164.522(b), so as to ensure that PHI will only be
communicated to those individuals designated in such a request as authorized to receive the PHI.
If ADV provides records to agents, including subcontractors, who may also communicate with
the individual, ADV shall ensure that the individual’s request for communications by alternative
means is provided to and given timely effect by such agents.
2.14. ADV shall not directly or indirectly receive or provide remuneration in exchange
for any PHI in violation of any final regulations promulgated by the Secretary under HITECH
Act § 13405(d) once such regulations become effective.
2.15. Electronic Transactions. ADV hereby agrees that, to the extent that it is
electronically transmitting any of the HIPAA Transactions for ADV, the format and structure of
such transmissions shall be in compliance with the Transaction Standards.
2.16. Electronic Data Security. To the extent that ADV creates, receives, maintains or
transmits electronic PHI, ADV hereby agrees that it:
2.16.1. Has implemented and documented administrative, physical and technical
safeguards that reasonably and appropriately protect the confidentiality, integrity, and
availability of the electronic PHI that ADV creates, receives, maintains or transmits on
behalf of HIN consistent with the requirements at 45 CFR §§ 164.308, 164.310, 164.312
and 164.316;
2.16.2. Will ensure that any agent, including a subcontractor, to whom ADV
provides electronic PHI agrees to implement reasonable and appropriate safeguards to
protect the PHI; and
29
2.16.3. Will keep records of all Security Incidents involving PHI of which ADV
becomes aware, and will report to HIN all significant Security Incidents of which ADV
becomes aware.
2.17. Breach Notification. The parties have in place policies and procedures that are
designed to detect inappropriate acquisition, access, use or disclosure of unsecured PHI, as that
term is defined in HITECH, and each party trains its work force and agents on these procedures.
Each party agrees that it will notify the other party within ten (10) business days of discovering
an inappropriate acquisition, access, use or disclosure of PHI transmitted by, to, through, or on
behalf of the other party, and, as soon as reasonably practicable, but in no event later than thirty
(30) calendar days of discovery will provide the other party with the identification of each
individual whose PHI has been or is reasonably believed to have been breached during such
incident, and any other information required pursuant to 45 C.F.R. §§ 164.400-414. Each party
will assist the other party in assessing whether the Breach poses a significant risk of financial,
reputational or other harm to the individuals whose information is involved. In the event that
individuals whose data is affected by the impermissible acquisition, access, use or disclosure
must be notified pursuant to the HIPAA Breach Notification Standards or other applicable law,
the party responsible for the Breach will provide such notification at its own expense without
unreasonable delay and in compliance with applicable law or reimburse the reasonable costs of
the party that bears the responsibility to provide notification.
2.18. If HIN delegates the performance of a particular Privacy Rule obligation to ADV,
ADV will comply with the requirements of the Privacy Rule that would apply to HIN in the
performance of such obligation.
3. Permitted Uses and Disclosures by HIN
3.1. General Use. Except as otherwise limited in this Addendum, ADV may use or
disclose PHI to perform functions, activities, or services for, or on behalf of, HIN as specified in
the Agreement, provided that such use or disclosure of PHI would not violate the Privacy Rule if
done by HIN or the minimum necessary policies and procedures of HIN.
3.2. Specific Use and Disclosure Provisions. Except as otherwise limited in this
Addendum, ADV may disclose PHI to carry out the legal responsibilities of ADV and for its
own proper management and administration, provided that disclosures are required by law, or
ADV obtains reasonable assurances from the person to whom the information is disclosed that it
will remain confidential and be used or further disclosed only as required by law or for the
purpose for which it was disclosed to the person, and the person notifies ADV of any instances
of which it is aware in which the confidentiality of the information has been breached. All other
disclosures shall be subject to HIN’s prior written permission.
4. Obligations of HIN.
30
4.1. HIN shall notify ADV of any limitation(s) in the notice of privacy practices of
HIN in accordance with 45 CFR § 164.520, to the extent that such limitation may affect ADV’s
use or disclosure of PHI. ADV will give timely effect to such limitations.
4.2. HIN shall notify ADV of any changes in, or revocation of, permission by
Individual to use or disclose PHI, to the extent that such changes may affect ADV’s use or
disclosure of PHI. ADV will give timely effect to such changes or revocations.
4.3. HIN shall notify ADV of any restriction to the use or disclosure of PHI that HIN
has agreed to in accordance with 45 CFR § 164.522, to the extent that such restriction may affect
ADV’s use or disclosure of PHI. ADV will give timely effect to such restrictions.
4.4. HIN shall not request ADV to use or disclose PHI in any manner that would not
be permissible under the Privacy Rule if done by HIN, except as specifically allowed by Section
3.2 of this Addendum.
5. Term and Termination.
5.1. Term. The Term of this Addendum shall be effective so long as the Agreement is
in effect between the parties and shall terminate when all of the PHI in any form, recorded on
any medium, or stored in any storage system provided by HIN to ADV, or created or received by
ADV on behalf of HIN, is destroyed or returned to HIN, or, if it is infeasible to return or destroy
PHI, protections are extended to such information, in accordance with the termination provisions
in this Section. This provision shall apply to PHI that is in the possession of ADV or agents of
ADV. ADV shall retain no copies of the PHI.
5.2. Termination for Breach by HIN. Upon ADV’s knowledge of a material breach of
the terms of this Addendum by HIN, ADV shall either:
5.2.1. Provide an opportunity for HIN to cure the breach or end the violation and
terminate their relationship and the Agreement if HIN does not cure the breach or end the
violation within the time specified by ADV;
5.2.2. Immediately terminate its relationship with HIN and the Agreement if
HIN has breached a material term of this Addendum and cure is not possible; or
5.2.3. If neither termination nor cure are feasible, report the violation to the
Secretary.
ADV’s option to have cured a breach of this Addendum shall not be construed as a waiver of any
other rights ADV has in the Agreement, this Addendum or by operation of law or in equity.
5.3. Termination for Breach by ADV. Upon HIN’s knowledge of a material breach of
the terms of this Addendum by ADV, HIN shall either:
31
5.3.1. Provide an opportunity for ADV to cure the breach or end the violation
and terminate their relationship and the Agreement if ADV does not cure the breach or
end the violation within the time specified by HIN;
5.3.2. Immediately terminate its relationship with ADV and the Agreement if
ADV has breached a material term of this Addendum and cure is not possible; or
5.3.3. If neither termination nor cure are feasible, report the violation to the
Secretary.
5.4. Other Conditions Allowing for Immediate Termination. Notwithstanding
anything to the contrary in this Addendum or the Agreement, HIN may terminate its relationship
with ADV and the Agreement immediately upon written notice to ADV, without any notice
period and/or judicial intervention being required, and without liability for such termination, in
the event that:
5.4.1. ADV (i) receives a criminal conviction, (ii) is excluded, barred or
otherwise ineligible to participate in any government health care program, including but
not limited to Medicare, Medicaid, CHAMPUS or Tricare; (iii) is named as a defendant
in a criminal proceeding for a violation of any information privacy and protection law; or
(iv) is found to have or stipulates that it has violated any privacy, security or
confidentiality protection requirements under any applicable information privacy and
protection law in any administrative or civil proceeding in which ADV has been joined;
5.4.2. A trustee or receiver is appointed for any or all property of ADV;
5.4.3. ADV becomes insolvent or unable to pay debts as they mature, or ceases
to so pay, or makes an assignment for benefit of creditors;
5.4.4. Bankruptcy or insolvency proceedings under bankruptcy or insolvency
code or similar law, whether voluntary or involuntary, are properly commenced by or
against ADV;
5.4.5. ADV is dissolved or liquidated.
5.5.
Effect of Termination.
5.5.1. Except as provided in paragraph 5.5.2 of this Section, upon termination of
the Agreement, for any reason, ADV shall return or, at HIN’s direction, destroy all PHI
received from HIN, or created or received by ADV on behalf of HIN in any form,
recorded on any medium, or stored in any storage system. This provision shall apply to
PHI that is in the possession of subcontractors or agents of ADV. ADV shall retain no
copies of the PHI.
32
5.5.2. In the event that return or destruction of the PHI is infeasible, ADV shall
extend the protections of this Addendum 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 ADV maintains such PHI.
6. Indemnification and Insurance.
6.1
Indemnification. ADV shall indemnify and hold harmless HIN for any and all
claims, inquiries, costs or damages, including but not limited to any monetary penalties, that HIN
incurs arising from a violation by ADV of its obligations hereunder. To the extent that ADV has
limited its liability under the terms of the Agreement, whether with a maximum recovery for
direct damages or a disclaimer against any consequential, indirect or punitive damages, or other
such limitations, all limitations shall exclude any damages to HIN arising from ADV’s breach of
its obligations relating to the use and disclosure of PHI.
6.2
Insurance. Each party shall obtain and maintain insurance coverage with at least
such limits as provided under the Agreement.
7. Miscellaneous.
7.1. Amendment. No provision of this Addendum may be modified except by a
written document signed by a duly authorized representative of the parties. The parties agree to
amend this Addendum, as appropriate, to conform with any new or revised legislation, rules and
regulations to which ADV is subject now or in the future including, without limitation, the
Privacy Rule, Security Standards or Transactions Standards (collectively “Laws”). If within
ninety (90) days of either party first providing written notice to the other of the need to amend
this Addendum to comply with Laws, the parties, acting in good faith, are i) unable to mutually
agree upon and make amendments or alterations to this Addendum to meet the requirements in
question, or ii) alternatively, the parties determine in good faith that amendments or alterations
to the requirements are not feasible, then either party may terminate this Addendum upon thirty
(30) days’ written notice.
7.2. Assignment. No party may assign or transfer any or all of its rights and/or
obligations under this Addendum or any part of it, nor any benefit or interest in or under it, to
any third party without the prior written consent of the other party, which shall not be
unreasonably withheld.
7.3. Survival. The respective rights and obligations of ADV under Section 5.5 of this
Addendum shall survive the termination of this Addendum.
7.4. Interpretation. Any ambiguity in this Addendum shall be resolved to permit HIN
to comply with the Breach Notification Standards, Privacy Rule, Security Standards, and
Transaction Standards. If there is any inconsistency between this Addendum and any other
agreement between the parties, the language in this Addendum shall control.
33
7.5. Third Party Rights. The terms of this Addendum are not intended, nor should
they be construed, to grant any rights to any parties.
7.6. Minimum Necessary. ADV agrees that, for all PHI that ADV accesses or
requests from HIN for the purposes of providing services, it shall access or request, and HIN
shall provide, only that amount of information that is minimally necessary to perform such
services. In addition, for all uses and disclosures of PHI by ADV, ADV shall institute and
implement policies and practices to limit such uses and disclosures to that which is minimally
necessary to perform its services. ADV shall determine the amount minimally necessary
consistent with the requirements in the HITECH Act, § 13405(b), or as otherwise specified in
regulations promulgated by the Secretary of the Department of Health and Human Services.
7.7. HITECH Act, § 13404. ADV may use and disclose PHI only if such use or
disclosure, respectively, is in compliance with each applicable requirement of 45 CFR
§164.504(e) and this Addendum.
7.8. Notice. All notices required under this Addendum shall be in writing and shall be
deemed to have been given on the next day by fax or other electronic means or upon personal
delivery, or in ten (10) days upon delivery in the mail, first class, with postage prepaid. Notices
shall be sent to the addressees indicated below unless written notification of change of address
shall have been given.
If to ADV
If to HIN:
_________________________________
_________________________________
_________________________________
_________________________________
____________________________________
____________________________________
____________________________________
____________________________________
Tel: _____________________________
Tel: ________________________________
Fax:_____________________________
Fax: _______________________________
7.9
Owner of PHI. Under no circumstances shall ADV be deemed in any respect to
be the owner of any PHI used or disclosed by or to ADV by HIN.
IN WITNESS WHEREOF, the parties have executed this Addendum the dates
indicated below.
ADV
HIN
______________________________
_____________________________
34
Signed
Signed
______________________________
Printed
_____________________________
Printed
______________________________
Date
_____________________________
Date
35
Exhibit E
FLOW-DOWN TERMS
As used in this Exhibit,
“Contract” means the applicable SOW.
“Contractor” means Approved Direct Vendor or “ADV”
A.
Federal Economic Stimulus Funding: This Contract requires the Contractor to
provide products and/or services that are funded in whole or in part under the
American Recovery and Reinvestment Act of 2009, Public Law 111-5,
(Recovery Act). The Contractor is responsible for ensuring that all applicable
requirements, including but not limited to those set forth herein, of the
Recovery Act are met and that the Contractor provides information to the
State as required. The Contractor (and any of its providers) shall comply with
the following:
1.
Federal Grant Award Documents, as applicable.
The parties hereby
acknowledge and agree that any references in the Federal Grant Award
Documents that prohibit the charging of profit or fee do not apply to
Contractor. In addition, Contractor will not be subject to any Cost Accounting
Standards set forth in the Federal Grant Award Documents.
2.
Executive Office of the President, Office of Management and Budget (OMB)
Guidelines as posted at www.whitehouse.gov/omb/recovery_default/, only to
the extent that such guidelines are applicable to for-profit commercial entities
such as Contractor or to support HIN’s compliance therewith.
3.
OMB Circulars applicable to for-profit commercial entities such as Contractor
or to support HIN’s compliance with the OMB Circulars, including but not
limited
to
A-102,
A-110
and
A-133
as
posted
at
www.whitehouse.gov/omb/financial_offm_circulars/.
Contract
terms
established or expected by OMB Circulars will be included in the contract to
the extent they are applicable.
4.
The applicable sections of the Recovery Act, including but not limited to the
following sections of that Act:
i.
Section 1604 – Disallowable Use. No funds pursuant to this Contract
may be used for any casino or other gambling establishment,
aquarium, zoo, golf course, or swimming pool.
36
ii.
Section 1512 – Reporting and Registration Requirements. To the
extent applicable to a vendor to a sub-recipient, the Contractor must
report on use of Recovery Act funds provided through this Contract.
Information from these reports will be made available to the public.
Contractor shall provide HIN with the information HIN needs to meet
its reporting obligations.
iii.
Section 1553 – Recovery Act Whistleblower Protections. An employee
of any non- Federal employer receiving covered funds under the
Recovery Act may not be discharged, demoted, or otherwise
discriminated against as a reprisal for disclosing, including a
disclosure made in the ordinary course of an employee’s duties, to the
Accountability and Transparency Board, an inspector general, the
Comptroller General, a member of Congress, a State or Federal
regulatory or law enforcement agency, a person with supervisory
authority over the employee (or other person working for the employer
who has the authority to investigate, discover or terminate
misconduct), a court or grand jury, the head of a Federal agency, or
their representatives, information that the employee believes is
evidence of one or more of the following related to the implementation
or use of covered funds:





gross mismanagement,
gross waste,
substantial and specific danger to public health or safety,
abuse of authority, or
violation of law, rule, or regulation (including those pertaining to
the competition for or negotiation of a Contract).
Non-enforceability of Certain Provisions Waiving Rights and Remedies
or Requiring Arbitration: Except as provided in a collective bargaining
agreement, the rights and remedies provided to aggrieved employees
by this section may not be waived by any agreement, policy, form, or
condition of employment, including any predispute arbitration
agreement. No predispute arbitration agreement shall be valid or
enforceable if it requires arbitration of a dispute arising out of this
section.
Requirement to Post Notice of Rights and Remedies: The Contractor
and any Solutions Provider shall post notice of the rights and remedies
as required under Section 1553. (Refer to Section 1553 of the
American Recovery and Reinvestment Act of 2009, Pub. L. 111-5
located at www.recovery.gov, for specific requirements of this section
and prescribed language for the notices.)
37
iv.
Section 902 – Access Of Government Accountability Office. The
Contractor shall provide that the Comptroller General and his
representatives are authorized:

to examine any records of the Contractor or any of its providers,
that directly pertain to, and involve transactions relating to, this
Contract or an Agreement; and

to interview any officer or employee of the Contractor or any of its
providers regarding such transactions.
v.
Section 1514 – Inspector General Reviews. Any inspector general of a
federal department or executive agency has the authority to review, as
appropriate, any concerns raised by the public about specific
investments using such funds made available in the Recovery Act. In
addition, the findings of such reviews, along with any audits conducted
by any inspector general of funds made available in the Recovery Act,
shall be posted on the inspector general’s website and linked to the
website established by Recovery Act Section 1526, except that
portions of reports may be redacted to the extent the portions would
disclose information that is protected from public disclosure under
sections 552 and 552a of title 5, United States Code.
vi.
Section 1515 – Access of Offices of Inspector General to Certain
Records and Employers. With respect to this Contract, any
representative of an appropriate inspector general appointed under
section 3 or 8G of the Inspector General Act of 1978 (5 U.S.C. App.),
is authorized:


vii.
to examine any records, of the Contractor or any of its Solutions
Providers, that pertain to and involve transactions relating or
pursuant to this Contract; and
to interview any officer or employee of the Contractor regarding
such transactions.
Section 1606 – Wage Rate Requirements. All laborers and mechanics
employed by pursuant to this Contract shall be paid wages at rates not
less than those prevailing on projects of a character similar in the
locality as determined by the Secretary of Labor in accordance with
subchapter IV of chapter 31 of title 40, United States Code. All rulings
and interpretations of the Davis-Bacon Act and related acts contained
in 29 CFR 1, 3, and 5 are herein incorporated by reference. For
purposes of this Contract, laborer or mechanic includes at least those
workers whose duties are manual or physical in nature (including
those workers who use tools or who are performing the work of a
38
trade), as distinguished from mental or managerial. The term laborer
or mechanic includes apprentices, trainees, helpers, and, in the case
of contracts subject to the Contract Work Hours and Safety Standards
Act, watchmen or guards.
viii.
Section 1605 – Buy American Requirements for Construction Material
– Buy American, Use of American Iron, Steel, and Manufactured
Goods. None of the funds provided by this Contract may be used for a
project for the construction, alteration, maintenance, or repair of a
public building or public work unless all of the iron, steel, and
manufactured goods used in the project are produced in the United
States.
5.
Contractor shall make available to the U.S. Comptroller General, the Health
and Human Services awarding agency, HIN or any of their duly authorized
representatives, any books, documents, papers and records of Contractor
which are directly pertinent to the Services performed under this SOW for the
purpose of making audits, examination, excerpts and transcriptions.
6.
Contractor shall comply with E.O. 11246, “Equal Employment Opportunity,”
as amended by E.O. 11375, “Amending Executive Order 11246 Relating to
Equal Employment Opportunity,” and as supplemented by regulations at 41
CFR part 60, “Office of Federal Contract Compliance Programs, Equal
Employment Opportunity, Department of Labor.”
7.
In the event Contractor shall provide any construction or repair Services,
Contractor shall comply with:
8.
i.
The Copeland “Anti-Kickback” Act, 18 U.S.C. 874, as supplemented
by Department of Labor regulations, 29 CFR part 3, “Contractors and
Subcontractors on Public Building or Public Work Financed in Whole
or in Part by Loans or Grants from the United States.” Contractor shall
report all suspected or reported violations to HIN.
ii.
The Davis-Bacon Act, 40 U.S.C. 276a to a–7, and as supplemented by
Department of Labor regulations, 29 CFR part 5, “Labor Standards
Provisions Applicable to Contracts Governing Federally Financed and
Assisted Construction.” Contractor shall report all suspected or
reported violations to HIN.
In the event Contractor shall provide any construction Services or employ any
mechanics or laborers, Contractor shall comply with sections 102 and 107 of
the Contract Work Hours and Safety Standards Act, 40 U.S.C. 327–333, as
supplemented by Department of Labor regulations, 29 CFR part 5. These
requirements do not apply to the purchases of supplies or materials or articles
39
ordinarily available on the open market, or contracts for transportation or
transmission of intelligence.
B.
9.
In the event Contractor’s Services include the performance of experimental,
developmental, or research work Contractor shall comply with 37 CFR part
401, “Rights to Inventions Made by Nonprofit Organizations and Small
Business Firms Under Government Grants, Contracts and Cooperative
Agreements,” and any further implementing regulations issued by HHS.
10.
Contractor shall comply with all applicable standards, orders or regulations
issued pursuant to the Clean Air Act, 42 U.S.C. 7401 et seq., and the Federal
Water Pollution Control Act, as amended 33 U.S.C. 1251 et seq. Violations
shall be reported to the HHS and the appropriate Regional Office of the
Environmental Protection Agency.
11.
The Contractor agrees to use commercially reasonable efforts to comply with
any modifications or additional requirements that may be imposed by law and
future guidance and clarifications of Recovery Act requirements.
Lobbying. The Contractor certifies, to the best of its knowledge and belief, that:
1.
No federally appropriated funds have been paid or will be paid, by or on
behalf of the undersigned, to any person for influencing or attempting to
influence an officer or employee of an agency, a Member of Congress, an
officer or employee of Congress, or an employee of a Member of Congress in
connection with the awarding of any Federal contract, the making of any
Federal grant, the making of any federal loan, the entering into of any
cooperative agreement, and the extension, continuation, renewal,
amendment, or modification of any federal contract, grant, loan, or
cooperative agreement.
2.
No federally appropriated funds have been paid or will be paid, by or on
behalf of the undersigned, to any person for influencing or attempting to
influence an officer or employee of an agency, a member of Congress, an
officer or employee of Congress, or an employee of a Member of Congress in
connection with the awarding of any Federal contract, the making of any
Federal grant, the making of any federal loan, the entering into of any
cooperative agreement, and the extension, continuation, renewal,
amendment, or modification of any federal contract, grant, loan, or
cooperative agreement.
This certification is a material representation of fact upon which reliance was placed when
this transaction was made or entered into and is a prerequisite for making or entering into
this transaction imposed by section 1352, title 31, U.S. Code.
40
Exhibit F
SERVICE LEVEL AGREEMENTS
1. Definitions
a. “Force Majeure Event” means any delay or failure in performance hereunder caused by
reason of any occurrence or contingency beyond its reasonable control, including but
not limited to acts of God, earthquake, labor disputes and strikes, riots, and war.
b. “Scheduled Downtime” equals the aggregate total of all minutes of planned and
scheduled maintenance performed during the month to perform any necessary
hardware, OS, network, database, application software maintenance, repair, upgrades,
and updates. ADV must provide fourteen (14) days prior notice for any maintenance to
be included as Scheduled Downtime. ADV will work with HIN to determine and use
commercially reasonable efforts to schedule downtime after regular business hours,
during times that minimize the disruption to operations. Scheduled Downtime shall not
exceed four (4) hours per month.
c. “System Availability” will be calculated monthly during the term of the applicable Order
Form using the following formula (and will be rounded to the nearest one-tenth of a
percentage point):
i. “System Availability” = [(Base Time – Unscheduled Downtime) / (Base Time)] x
100
ii. “Base Time” equals the product of the number of days in the applicable month
multiplied by twenty-four (24) hours multiplied by sixty (60) minutes, less
downtime resulting from a Force Majeure Event.
d. “Unscheduled Downtime” equals the time (in minutes) during which the Service is not
operational (excluding “Scheduled Downtime”).
2. Service Availability Commitment
a. If the monthly System Availability for the Service falls below 99.9% and so long as HIN is
current in paying all undisputed fees and operating within the scope of use limits set
forth in the Agreement, ADV will refund to HIN within thirty (30) days of the end of such
month an amount equal to such month’s fees.
b. In the event System Availability falls below 99.9% for (i) two (2) consecutive calendar
months in a rolling twelve (12) month period; or (ii) any three (3), or more, nonconsecutive months in any twelve (12) month period, then, notwithstanding anything in
the Agreement to the contrary, HIN may terminate the Agreement, the applicable Order
Form or SOW effective upon written notice to ADV.
c. In the event that System Availability falls below 90% in any given month, then,
notwithstanding anything in the Agreement to the contrary, HIN may terminate the
Agreement, the applicable Order Form or SOW and/or the effected system components
effective upon written notice to ADV.
3. Measuring System Availability.
a. Equipment, network routers, switches, circuits, OS and other software provided by ADV
will be monitored using automated monitoring tools. In addition, call center logs will be
checked that show a resolution relating to System Availability issues. HIN may perform
41
its own System Availability monitoring to include live functional testing. For purposes of
tracking downtime duration, the Unscheduled Downtime will begin at the time at which
the impact is first identified by either: (1) ADV’s tracking tools; or (2) HIN’s tracking
tools. Unscheduled Downtime ends at the point in time when users have the ability to
access and use the production system.
b. ADV will make available to HIN, upon HIN’s request, reports that are inclusive of data on
the System Availability.
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