TELECOMMUNICATIONS SERVICES AGREEMENT
This Telecommunications Services Agreement entered into as of the
25th day of November, 2002, between NEW ISLAND Hospital, a New York
not-for-profit corporation having its principal office at 0000 Xxxxxxxxx
Xxxxxxxx, Xxxxxxxx, Xxx Xxxx 00000 ("Hospital"), and MED-LINK USA, INC., a New
York corporation having its principal office at 000 Xxxxxxxxxxx Xxxx, Xxxxx 000,
Xxxxxxxx, Xxx Xxxx 00000 ("Med-Link").
R E C I T A L S :
WHEREAS, Hospital is licensed pursuant to Article 28 of the Public
Health Law of the State of New York ("PHL") to operate a hospital; and
WHEREAS, Med-Link is in the business of furnishing telecommunication
services to healthcare providers and establishing networks which serve as a
conduits and repositories of healthcare and related information accessible by
authorized parties; and
WHEREAS, Hospital desires to engage Med-Link to provide, among other
things, the Services, as defined in Section 2 hereof, in connection with
Hospital's patient records and information, and Med-Link is willing to provide
such services on the terms and subject to the conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual agreements and
promises contained herein and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. DEFINITIONS.
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Certain defined terms used in this Agreement shall have the meaning
specified in this Section 1. Certain additional terms are defined elsewhere in
this Agreement.
1.1 AGREEMENT. The term "Agreement" shall mean this
Telecommunications Services Agreement and all schedules, exhibits and
attachments, and any amendment(s) thereto.
1.2 APPLICABLE LAW. The term "Applicable Law" shall mean any state,
federal or local statute, regulation, ordinance, code, manual or other issuance
by a governmental agency, including without limitation, Title II, Part C of the
Health Insurance Portability and Accountability Act of 1996 ("HIPAA") and 45 CFR
Parts 160 and 164, Article 28 of the PHL and regulations promulgated thereunder
by the New York State Department of Health and/or local laws, ordinances, rules
and regulations established by all governmental, quasi-governmental and
administrative bodies having jurisdiction over Hospital and applicable to the
parties' respective obligations under this Agreement.
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1.3 AUTHORIZED PERSON. The term "Authorized Person" shall mean a
member of the Medical Staff or other person who is authorized by Hospital to use
the VPN for purposes of accessing the Data.
1.4 DATA. The term "Data" shall mean the information delivered to
Med-Link by Hospital over the VPN or otherwise, including any Protected Health
Information, in order for Med-Link to perform its responsibilities under this
Agreement.
1.5 DOCUMENTATION. The term "Documentation" shall mean the
Specifications, and all instruction, operating and user manuals, provided by
Med-Link for use in connection with the VPN, whether in electronic, online or
hard copy format.
1.6 EFFECTIVE DATE. The term "Effective Date" shall mean the
Effective Date set forth in Section 10.1.
1.7 IMPLEMENTATION PLAN. The term "Implementation Plan" shall have
the meaning set forth in Section 2.1.
1.8 INSTALLATION DATE. The term "Installation Date" shall mean the
date on which the installation of the VPN has been completed.
1.9 HOSPITAL INTERFACE. The term "Hospital Interface" shall mean the
interface between the VPN and the Hospital System.
1.10 HOSPITAL SYSTEM. The term "Hospital System" shall mean the
internal and proprietary computer software, hardware, server and equipment of
Hospital.
1.11 LICENSED MATERIALS. The term "Licensed Materials" shall mean the
VPN, the Documentation and all associated material provided to Hospital or
developed by Med-Link hereunder, including all modifications, additions,
derivatives, Upgrades and enhancements thereof, and all copies thereof.
1.12 MEDICAL STAFF. The term "Medical Staff" shall mean the Medical
Staff of Hospital.
1.13 PROTECTED HEALTH INFORMATION. The term "Protected Health
Information" shall mean individually identifiable health information that is (a)
transmitted by electronic media; (b) maintained in any electronic medium; or (c)
transmitted or maintained in any other form or medium. "Protected Health
Information" does not include individually identifiable health information in
(x) education records covered by the Family Educational Right and Privacy Act,
as amended (20 USC ss. 1232g); or (y) records described in 20 USC ss.
1232g(a)(4)(B)(iv). For purposes of this definition, "individually identifiable
health information" shall mean health information, including demographic
information collected from an individual, that: (aa) is created or received by a
health care provider, health plan, employer or health care clearinghouse; and
(bb) relates to the past, present or future physical or mental health or
condition of an individual; the provision of health care to an individual; or
the past, present or future payment for the provision of health care to an
individual and that (1) identifies the individual; or (2) with respect to which
there is a reasonable basis to believe the information can be used to identify
the individual.
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1.14 REQUIRED BY LAW. The term "Required by Law" shall mean a mandate
contained in law that compels the use or disclosure of Protected Health
Information and that is enforceable in a court of law. "Required by Law"
includes, but is not limited to, court orders and court-ordered warrants;
subpoenas or summons issued by a court, grand jury, a governmental or tribal
inspector general, or an administrative body authorized to require the
production of information; a civil or an authorized investigative demand;
Medicare conditions of participation with respect to health care providers
participating in the program; and statutes or regulations that require the
production of information, including statutes or regulations that require such
information if payment is sought under a government program providing public
benefits.
1.15 SERVICES. The term "Services" shall mean the services to be
provided by Med-Link as described in Section 2.
1.16 SPECIFICATIONS. The term "Specifications" shall mean the
detailed description of the functionality, the technical design specifications
(including such details as may be required to support interface building), file
formats, file layouts and any related processes and procedures for the VPN as
set forth in Exhibit I.
1.17 TEST PERIOD. The term "Test Period" shall mean the period of
sixty (60) days from the Installation Date.
1.18 UPGRADES. The term "Upgrades" shall mean enhancements,
modifications and improvements of the VPN that Med-Link may develop during the
term hereof, including but not limited to modifications or refinements to the
VPN that increase the speed, efficiency or ease of operation of the VPN
capabilities or functions or otherwise improve the VPN.
1.19 VIRTUAL PRIVATE NETWORK. The term "Virtual Private Network" or
"VPN" shall mean the software, equipment, computer systems, networks and servers
that Med-Link owns, operates and maintains for purposes of providing the
Services hereunder.
2. MED-LINK SERVICES.
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On and subject to the terms hereof, Med-Link shall provide to
Hospital the following services:
2.1 IMPLEMENTATION PLAN. The initial Implementation Plan which
describes each of the party's respective responsibilities and tasks with respect
to the installation and implementation of the VPN, and includes the time periods
for the completion of each task is attached at Exhibit II.
2.2 BASIC SERVICES. Med-Link shall provide to Hospital the Basic
Services described in Exhibit III.
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2.3 INTERFACE DEVELOPMENT. Med-Link shall provide technical and other
assistance to Hospital with respect to the development and design of a Hospital
Interface, and any devices and structures necessary for the Hospital System to
communicate with the VPN. Hospital shall cooperate with Med-Link in the
development and design process of such interfaces, devices and structures and
shall furnish any specifications, code or other technical data which may be
necessary.
2.4 SUPPORT SERVICES. During the term hereof, at no additional cost
to Hospital, Med-Link shall provide technical services to design, code, check
out and deliver amendments or alterations necessary to correct or provide a
solution to any error which affects Hospital's use of the VPN or which causes
the VPN to fail to operate in accordance with the Documentation. Such services
will be promptly accomplished after Hospital has identified and notified
Med-Link of such error. Med-Link shall provide Hospital telephone consultation
regarding the use and operation of the VPN twenty-four hours per day, 7 days a
week. Med-Link shall provide Upgrades of the VPN to Hospital from time to time,
as made generally available by Med-Link to users of the VPN.
2.5 REGULATORY REQUIREMENTS. If during the term of this Agreement,
Hospital is required to fulfill any Federal or State mandatory regulatory
requirements relating to the use of the VPN which: (i) is applicable to
Hospital, (ii) requires the adaptation of the VPN, (iii) cannot be accomplished
by Hospital through the use of procedures, tools, programs or utilities
available to Hospital, and (iv) becomes effective, or is scheduled to become
effective during the term of this Agreement (hereinafter a "Mandatory Regulatory
Requirement"), then Med-Link shall make available to Hospital, at no additional
cost, and in advance of the effective date(s) of the respective Mandatory
Regulatory Requirement, such changes, modifications or additions to the VPN as
shall be necessary to adapt the VPN to support Hospital's compliance with such
Mandatory Regulatory Requirements.
2.6 ACCESS. Med-Link shall take all necessary precautions to ensure
that only Authorized Persons have access to the VPN and the Data. Hospital shall
furnish to Med-Link a list of all Authorized Persons which includes the
appropriate level of access to the VPN and the Data granted by Hospital to each
Authorized Person. The list of Authorized Users may be updated or revised by
Hospital from time to time. The parties acknowledge and agree that Med-Link and
each Authorized User shall enter into separate agreements which shall provide
that each Authorized User is responsible for any payment obligations with
respect to the services rendered by Med-Link to the respective Authorized Users
including but not limited to any related licensing and support fees associated
with use of the VPN and access to the Data residing thereon.
3. LICENSES.
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3.1 LICENSED MATERIALS. Med-Link hereby grants to Hospital and to
each Authorized User, a limited, non-exclusive, non-transferable license to use
the Licensed Materials, for the purposes described in this Agreement. Such grant
does not include any right to (a) resale or commercial use of the Licensed
Materials unless otherwise agreed upon by Med-Link and Hospital; or (b) making
derivative use of the Licensed Materials. Except as provided in this Section 3,
Hospital is not conveyed any right in or under any patent, trademark, copyright
or proprietary right of Med-Link or any third party.
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3.2 VPN LICENSE. Med-Link hereby grants to Hospital and to each
Authorized Person, a limited, non-exclusive, non-transferable license to use the
Virtual Private Network and any additional software and equipment which Med-Link
makes available in connection therewith. Hospital may not sell, transfer, lease,
encumber, assign or otherwise directly or indirectly, dispose of all or part of
the VPN, without the express written consent of Med-Link.
4. HOSPITAL'S RESPONSIBILITIES.
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4.1 SOFTWARE AND EQUIPMENT. Hospital shall, at its expense, acquire,
install and maintain the software, equipment and services necessary for the use
and access of the VPN by Hospital. A schedule of such software, equipment and
services is set forth at Exhibit IV.
4.2 ACCESS TO FACILITY. Hospital shall grant Med-Link access to its
facility and Hospital System, at reasonable times and upon prior notice, for
purposes of performing the obligations under this Agreement.
5. WARRANTIES OF MED-LINK.
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5.1 Med-Link represents and warrants to Hospital, as of the Effective
Date hereof, which representations and warranties shall continue in effect
throughout the term of this Agreement, that (i) Med-Link is the owner of the
VPN, and has the right to license to Hospital the use of the VPN as herein
provided, (ii) the VPN will operate fully, accurately and without defect in
accordance with the Documentation and will receive, process and respond within
the time frames set forth in Exhibit V, (iii) the VPN is free of any viruses,
codes or mechanisms that are designed to delete, modify, damage, erase or
disable software, hardware or data, including but not limited to, items that are
commonly referred to "back doors," "time bombs," "Trojan Horses," or "drop dead"
devices, (iv) each of its employees, agents or representatives assigned to
perform Services, will have the proper skill, training and background so as to
be able to perform in a competent and professional manner, and (v) all Services
provided by Med-Link, will be performed in a manner compatible with Hospital's
operations.
6. ACCEPTANCE TESTING.
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During the Test Period, Hospital may test the VPN to ensure that it
conforms to the description contained in the Documentation. If during the Test
Period the VPN does not perform as described in the Documentation, Hospital
shall notify Med-Link, in writing, and describe the problems encountered.
Med-Link shall have ten (10) days from the receipt of such notification to
correct any reported problems. Upon completion of any corrections, Med-Link
shall so notify Hospital. Hospital shall have an additional thirty (30) days
following Med-Link's notification to confirm that the problems have been
resolved. At the end of such thirty (30) day period, Hospital shall notify
Med-Link either that (a) the acceptance testing has been successfully completed,
or (b) the VPN still does not conform to the description in the Documentation,
in which case, Med-Link shall, at the request of Hospital, deem this Agreement
to be terminated and refund any fees paid by Hospital.
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7. CONFIDENTIALITY AND PROPRIETARY RIGHTS.
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7.1 CERTAIN DEFINED TERMS. As used in this Section 7, the following
terms shall have the following meanings:
"Confidential Business Information" of a party means all information
concerning such party's properties, products, services, employees, finances,
businesses and operations, including, without limitation, all information, in
whatever form embodied, relating to such party's Creations, but excluding
information which (i) is already known to the receiving party or is publicly
available at the time of disclosure; (ii) is disclosed to the receiving party by
a third party who is not in breach of an obligation of confidentiality; or (iii)
becomes publicly available after disclosure through no act of the receiving
party.
"Creations" of a party means all methods of gathering, evaluating,
summarizing and communicating medical and other information, training materials
and all processes, practices, techniques, algorithms, computer program logic and
codes, in whatever form embodied, used by such party in connection with the
rendering of its product and service offerings or in the conduct of any aspect
of its business, and any documentation related thereto.
7.2 CONFIDENTIALITY OF BUSINESS INFORMATION. Each party acknowledges
that in the course of the performance of this Agreement, it may have access to
Confidential Business Information of the other party. Each party agrees to
receive and maintain all Confidential Business Information of the other party in
strictest confidence using at least the same degree of care it takes in
protecting its own Confidential Business Information, but always at least a
reasonable degree of care. Except as expressly provided herein or as may be
required by law or legal process, each party agrees it will not use Confidential
Business Information of the other party for its own benefit or disclose it to
third parties without the written consent of the disclosing party.
7.3 PROPRIETARY RIGHTS. Each party acknowledges that all Creations of
the other party constitute valuable property of the other party. Each party
shall retain ownership of and all other rights and interests with respect to its
Creations (including, without limitation, the content thereof, the ideas and
concepts embodied therein, any and all copies, modifications, alterations and
enhancements thereto, and any derivative works resulting therefrom), and nothing
herein shall be construed as granting to the other party any ownership, license
or any other rights of any nature with respect thereto. In furtherance of the
foregoing, neither party shall create or attempt to create by reverse
engineering or otherwise any Creations of the other party. Each party shall
maintain the confidentiality of the Creations of other party in accordance with
the provisions of Section 7.2 above.
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7.4 TRADEMARKS AND TRADE NAMES.
7.4.1 Each party to this Agreement reserves the right to control its
names and all symbols, trademarks and service marks presently existing or
hereafter established with respect to it. Neither party will use the name,
symbols, trademarks or service marks of the other party in advertising or
promotional materials or otherwise, without the prior written consent of the
other party. Each party will cease any permitted usage with respect to the other
immediately following the termination of this Agreement.
7.4.2 Each party shall give the other the opportunity to review and
approve any press releases, advertisements, solicitations or other materials
describing or referring to the other or the subject matter of this Agreement,
and neither party shall make any statements or representations to any persons
that are inconsistent with the terms of this Agreement.
7.5 EQUITABLE RELIEF. Without prejudice to the rights and remedies
otherwise available to party, each party shall be entitled to seek equitable
relief by way of injunction or otherwise if the other party breaches or
threatens to breach any of the provisions of this Section 7.
7.6 DATA. Med-Link expressly acknowledges and agrees that title and
ownership of the Data, shall at all times remain with Hospital.
8. PRIVACY OF PROTECTED HEALTH INFORMATION
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8.1 INITIAL PERMITTED USES AND DISCLOSURES. From and after the
Effective Date and continuing until the effective date of the privacy
regulations promulgated pursuant to HIPAA (45 CFR Parts 160 and 164), Med-Link
may use and disclose the Data only in accordance with this Section 8.1 and as
Required by Law.
(a) PERMITTED USE AND DISCLOSURE OF PROTECTED HEALTH INFORMATION.
Med-Link may use and disclose Protected Health Information received by Med-Link
pursuant to this Agreement in connection with its performance of this Agreement.
Med-Link agrees to keep confidential all Protected Health Information generated
or used in the course of the performance or administration of this Agreement,
and shall not use or disclose Protected Health Information except in conformance
with applicable state or federal law, and in conformance with the purposes and
provisions of this Agreement. In the event Med-Link discloses to an agent
Protected Health Information to carry out its duties under this Agreement or
Protected Health Information created by Med-Link on behalf of Customer, Med-Link
shall obligate such agent to comply with the provisions of this Agreement
applicable to Med-Link with respect to such information.
8.2 PERMITTED USES AND DISCLOSURES AFTER HIPAA. From and after the
effective date of the privacy regulations promulgated pursuant to HIPAA (45 CFR
Parts 160 and 164), Med-Link may use and disclose the Data only in accordance
with this Section 8.2 and as Required by Law.
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(a) PERMITTED USE AND DISCLOSURE OF PROTECTED HEALTH INFORMATION. (a)
Med-Link may use and disclose Protected Health Information received by Med-Link
pursuant to this Agreement:
(i) to carry out the responsibilities of Med-Link under this
Agreement;
(ii) if necessary, for Med-Link's proper management and
administration; and
(iii) if necessary, to carry out Med-Link's legal
responsibilities.
(b) DISCLOSURE TO AGENTS. In the event Med-Link discloses to an agent
Protected Health Information pursuant to Section 8.2(a)(i) or Protected Health
Information created by Med-Link on behalf of Hospital, Med-Link shall obligate
such agent to comply with the provisions of this Agreement applicable to
Med-Link with respect to such information.
(c) OTHER PERMITTED DISCLOSURES. In the event Med-Link discloses
Protected Health Information pursuant to Sections 10.2(a)(ii) or 10.2(a)(iii),
Med-Link shall: (i) obtain reasonable assurances from the person to whom the
Protected Health Information is disclosed that it will be held confidentially
and used or further disclosed only as Required by Law or for the purpose for
which it was disclosed; and (ii) obligate such person to notify Med-Link of any
instances of which it is aware in which the confidentiality of the Protected
Health Information has been breached. This subsection (c) is not applicable to
disclosures Required by Law.
8.3 SAFEGUARDS FOR PROTECTED HEALTH INFORMATION. Med-Link shall
employ appropriate safeguards to prevent the unauthorized use or disclosure of
Protected Health Information received by Med-Link pursuant to this Agreement.
The current security mechanisms used by Med-Link in connection with the
operation of the VPN are described in Exhibit V. Med-Link shall promptly report
to Hospital any unauthorized use or disclosure of such Protected Health
Information of which Med-Link becomes aware.
8.4 PATIENT ACCESS TO PROTECTED HEALTH INFORMATION. To the extent
required by and in accordance with 45 CFR xx.xx. 164.524 and 164.526, Med-Link
shall make available for review and amendment any Protected Health Information
to the individual about whom the Protected Health Information pertains. Med-Link
shall provide an accounting of disclosures of Protected Health Information made
pursuant to this Agreement in accordance with 45 CFR ss. 164.528.
8.5 HHS ACCESS. Med-Link shall make its internal practices, books and
records relating to the use and disclosure of Protected Health Information
received from, or created or received by Med-Link on behalf of, Hospital to the
United States Department of Health and Human Services ("HHS") in accordance with
Applicable Law.
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8.6 RETURN OF DATA UPON TERMINATION. Upon any termination or
expiration of this Agreement, Med-Link shall: (a) return or destroy all
Protected Health Information received from, or created or received by Med-Link
on behalf of, Hospital that Med-Link still maintains in any non-de-identified
form and retain no copies of such information; or (b) if Med-Link reasonably
determines that such return or destruction is not feasible, extend the
protections of this Agreement to such information and limit further uses and
disclosures to those purposes that make the return or destruction of the
Protected Health Information infeasible.
9. COMPENSATION.
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In consideration of the Services rendered hereunder, the Hospital
shall pay Med-Link in accordance with the schedule set forth as Schedule A.
10. TERM AND TERMINATION OF AGREEMENT.
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10.1 TERM. This Agreement shall be effective on _____ (the "Effective
Date") for an initial term of ______ ( __ ) year(s) (the "Initial Term"), unless
terminated sooner upon mutual agreement of the parties or pursuant to Section
10.2 below. The Agreement may be renewed upon the same terms and conditions
herein for additional ____ (__) year terms (the "Renewal Terms").
10.2 TERMINATION.
10.2.1 TERMINATION BY EITHER PARTY. (a) Either party may terminate
this Agreement at any time with or without cause by giving not less than sixty
(60) days written notice.
(b) In the event either party shall give written notice to the other
that such party has materially defaulted in the performance of any obligation
under this Agreement and such default has not been cured to the reasonable
satisfaction of the notifying party within fifteen (15) days following such
notice, the notifying party shall have the right to terminate this Agreement
upon thirty (30) days written notice of termination.
(c) In the event that any Applicable Law or agency directive shall
prohibit or invalidate this Agreement or any material part thereof, this
Agreement may be terminated by either party upon thirty (30) days written notice
or at such earlier time as may be required by such Applicable Law or agency
directive.
10.2.2 AUTOMATIC TERMINATION. This Agreement shall terminate
automatically upon the loss of the operating certificate of Hospital or the
bankruptcy or insolvency of Med-Link.
10.2.3 TERMINATION BY HOSPITAL. Hospital may terminate this Agreement
immediately upon notice to Med-Link of the occurrence of any of the following
events:
(a) The breach by the Med-Link of any representation and warranty set
forth in Section 5 or the failure of Med-Link to comply with its obligations
hereof; or
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(b) The determination of Hospital to cease the operation of the
hospital.
10.2.4 EFFECT OF TERMINATION. Upon termination or expiration of this
Agreement, neither party shall have any further obligation hereunder except for:
(i) obligations accruing prior to the date of termination; and (ii) obligations,
promises or covenants contained herein which are expressly made to extend beyond
the term of this Agreement. Notwithstanding the foregoing, in the event of
termination of this Agreement, at the request of Hospital, Med-Link shall
continue to provide Services to Hospital at its then-current standard rate for a
period of up to ninety (90) days subsequent to such termination to enable
Hospital to transition to a substitute system. The foregoing transition period
may be extended by mutual written agreement of the parties. Hospital agrees to
promptly return to Med-Link any Licensed Materials in its possession upon
termination or expiration of this Agreement.
11. INDEMNIFICATION.
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11.1 Med-Link shall indemnify, hold harmless and defend Hospital, its
officers, directors, employees, agents, members, Authorized Persons, and
affiliates from and against any and all claims, suits, losses, costs, expenses,
fees, liabilities and damages, including interest, penalties and reasonable
attorneys' fees and disbursements, arising out of any claim that the VPN
infringes a U.S. copyright, a U.S. patent, trademark, trade secret or other
intellectual property right held by a third party. Hospital has the right, at
its own expense, to participate in the defense of any such action through
counsel of its own choosing. In defending such action, Med-Link may at its
option: (i) consent, (ii) settle, (iii) procure for Hospital the right to
continue using the VPN, or (iv) modify or replace all or part of the VPN so that
it no longer infringes, to the extent that the exercise of any such option does
not result in a material adverse change in the operational characteristics of
the VPN, and so long as equivalent functions and performance provided by the VPN
remain following such option. If Med-Link exercises the right to modify or
replace the VPN set forth in item (iv) above, the cost of installations,
conversions, interfaces, hardware, software licenses and operating systems
associated with the modifications and replacements of the VPN shall be at
Med-Link's sole expense.
11.2 Med-Link shall indemnify, defend, protect and hold harmless
Hospital its officers, directors, employees, agents, members and affiliates,
from and against any and all claims, suits, losses, costs, expenses, fees,
liabilities and damages, including interest, penalties and reasonable attorneys'
fees and disbursements, arising from or related to a breach of confidentiality
related to Protected Health Information, to the extent attributable to the
actions or omissions of Med-Link or any of its directors, officers, employees or
agents.
11.3 The indemnification provided under this Section 11 shall
supplement and not supercede or replace any protection or rights that may be
afforded Med-Link under any insurance policies maintained by such parties that
provide coverage for any act that may serve as the basis for a claim of
indemnification hereunder.
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12. GENERAL PROVISIONS
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12.1 ETHICAL AND RELIGIOUS DIRECTIVES. During the term hereof,
Med-Link shall comply with the ethical and religious directives applicable to
Catholic health care facilities adopted by the Diocese of Rockville Centre, as
interpreted by the Xxxxxx of the Diocese.
12.2 RELATIONSHIP OF THE PARTIES. In performing the Services
described in this Agreement, Med-Link shall act as an independent contractor. In
no event shall this Agreement be construed to create a partnership, joint
venture or similar relationship or an employer-employee relationship between
Hospital and Med-Link.
12.3 NOTICE. Whenever, under the terms of this Agreement, written
notice is required or permitted to be given by any party to any other party,
such notice shall be deemed to have been sufficiently given if deposited in the
United States mail, in a properly stamped envelope, certified or registered
mail, return receipt requested, addressed to the party to whom it is to be
given, at the address hereinafter set forth. Either party hereto may change its
respective address by written notice in accordance with this Section 12.3.
to Hospital at:
New Island Hospital
0000 Xxxxxxxxx Xxxxxxxx
Xxxxxxxx, Xxx Xxxx 00000
Attn: Office of the President
to Med-Link at:
Med-Link USA, Inc.
000 Xxxxxxxxxxx Xxxx
Xxxxx 000
Xxxxxxxx, Xxx Xxxx 00000
Attn: President
12.4 ENTIRE AGREEMENT. This Agreement contains the sole and entire
agreement between the parties and shall supersede all oral negotiations and
prior agreements or understandings between the parties, whether oral or written.
The parties acknowledge and agree that they have not made any representations
inducing the execution and delivery hereof except for such representations as
are specifically set forth herein.
12.5 MODIFICATIONS AND AMENDMENTS. This Agreement may not be amended
or modified in any manner except by a written instrument signed by both parties.
12.6 BINDING EFFECT; ASSIGNMENT. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective agents,
affiliates and successors. Med-Link shall have no right to assign this Agreement
or any of its rights or obligations hereunder without the Hospital's prior
written consent.
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12.7 FORCE MAJEURE. Neither party shall be liable to the other party
for any delay or failure to perform its obligations under this Agreement to the
extent such delay or failure arises from any cause or causes beyond its
reasonable control including, without limitation, labor disputes, strikes, other
labor or industrial disturbances, acts of God, floods, lightning, shortages of
materials, rationing, utility or communications failure (other than its own
equipment failures), earthquakes, casualty, war, acts of public enemy, riots,
insurrections, embargoes, blockages, or actions, restrictions, regulations or
orders of any governmental agency or subdivision thereof. However, the parties
shall make good faith efforts to perform under this Agreement in the event of
any such circumstances.
12.8 SECTION HEADINGS. Section headings and sub-headings used herein
are for convenience only and shall not affect the construction of this
Agreement.
12.9 GOVERNING LAW. This Agreement shall be governed by and construed
pursuant to the laws of the State of New York.
12.10 NO WAIVER OF BREACH. The waiver by either party of any breach
or violation of any provision of this Agreement shall not operate as, or be
construed to constitute, a waiver of any subsequent breach of the same or other
provision hereof.
12.11 LEGAL ACTION. The parties shall promptly notify and shall keep
each other advised of any legal actions, proceedings, notices or service of
process brought by or against them in connection with the performance of this
Agreement.
12.12 MUTUAL DRAFTING. The parties agree that the terms and
conditions of this Agreement are the result of negotiations between the parties
and that this Agreement shall not be construed in favor of or against any party
by reason of the extent to which any party or its professionals participated in
the drafting of this Agreement.
12.13 CONSENTS, APPROVALS AND DISCRETION. Except as herein expressly
provided to the contrary, whenever this Agreement requires any consent or
approval to be given by either party, or either party must or may exercise
discretion, the parties agree that such consent or approval shall not be
unreasonably delayed and such discretion shall be reasonably exercised.
12.14 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which when executed and delivered shall be an original,
and all of which together constitute but one and the same instrument. A
facsimile signature of an executed signature page hereof transmitted to a party
shall have the same effect as delivery to such party of a manually executed
counterpart hereof.
12.15 RIGHT OF ACCESS. (a) To the extent applicable under Section
1861 (v)(i) of the Social Security Act, as amended by Public Law 86-499, and the
regulations promulgated thereunder, 42 CFR Part 420, the parties hereby agree
that until the expiration of four years after the furnishing of services under
this Agreement, each shall make available upon written request to the Secretary
of Health and Human Services, or upon request by the Comptroller General of the
United States or any of their duly authorized representatives, copies of this
Agreement and such books, documents and records that are necessary to certify
the nature and extent of the costs hereunder.
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(b) If Med-Link carries out any of the duties of the Agreement
hereunder through a subcontract having a value or cost of $10,000 or more over a
twelve month period, such subcontract shall contain a clause to the effect that,
until the expiration of four years after the furnishing of such services
pursuant to such subcontract, the subcontractor shall make available upon
written request to the Secretary of Health and Human Services or upon request to
the Comptroller General of the United States or any of their duly authorized
representatives, copies of the subcontract necessary to verify the nature and
extent of the costs of such subcontract. The provision of this paragraph shall
apply only to such contracts as are within the definition established by the
Health Care Financing Administration, as may be amended or modified from time to
time.
12.16 SURVIVAL. Sections 7, 8, 10.2.4, 11, 12.11, 12.12, 12.15 and
any other provisions hereof which by its terms was intended to be, or under the
particular circumstances at issue can reasonably only be, performed after
termination of this Agreement, shall survive the termination or expiration of
this Agreement.
12.17 COMPLIANCE. Without limiting Med-Link's obligation to Hospital
hereunder, notwithstanding any other provision in this Agreement, Hospital
remains responsible for ensuring that any services provided pursuant to this
Agreement complies with all pertinent provisions of Federal, state and local
statues, rules and regulations.
IN WITNESS WHEREOF, the parties hereto have hereunto signed their
names on the day and year first above written.
NEW ISLAND HOSPITAL
By:_________________________________
Xxxx X. Xxxxx
President and C.E.O.
MED-LINK USA, INC.
By:_________________________________
Xx. Xxxxxxx Xxxxx
President
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EXHIBIT I
FUNCTIONAL AND TECHNICAL SPECIFICATIONS
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EXHIBIT II
IMPLEMENTATION PLAN
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EXHIBIT III
BASIC SERVICES
LICENSE
IMPLEMENTATION
TRAINING
INTERFACES
SUPPORT
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EXHIBIT IV
HARDWARE/SOFTWARE CONFIGURATION
The following configurations represent the minimum software and
hardware requirements to support an implementation of the Virtual Private
Network at Hospital's location.
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EXHIBIT V
RESPONSE TIME WARRANTY
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EXHIBIT VI
SECURITY FEATURES OF MED-LINK
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SCHEDULE A
PAYMENT SCHEDULE
EXHIBIT I
SPECIFICATIONS
FUNCTIONALITY
1) Phone Message Retrieval Options
2) Lab Work & Patient Information Network
3) Specifications
4) Components provided by Med-link
5) Components provided by Hospital
1) PHONE MESSAGE RETRIEVAL OPTIONS
-------------------------------
Med-link is also an answering service. Messages taken by our
operators are typed into our system. Xxxxxxx000.xxx makes the
messages available to those doctors subscribing the service from
any Internet ready web browser in real time.
Messages are generated by the Med-link call center in a Microsoft
SQL Server 2000 SP2, which combines strong administrative
abilities with leading edge XML support. The application layer
utilizes Microsoft's .Net technology and is presented to the web
browser using IIS 5 with .Net framework extensions. It also
provides accessibility from any Internet ready web browser to
ensure efficient direct query and data retrieval from the
database while utilizing an efficient web page construction.
2) LAB WORK & PATIENT INFORMATION NETWORK
--------------------------------------
Approved lab work data and other approved data will be available to
Xxxxxxx000.xxx from the Hospital database. The features available will provide
Physician Users remote access to their individual patients lab work results as
well as other specific patient information. The data will be transmitted via a
secure point-to-point T1 line. All patient lab work and information will be
protected and stored on a secure server with Physician Users accessibility
restricted to only their patients.
3) SPECIFICATIONS
A) Internet Connection
1) T1 connection provided by ISP to be determined.
2) Other Internet connection for redundancy
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B) Point-to-Point Connectivity to Hospital
1) 2 Cisco Routers
2) 2 dsu/csu
3) T1 line provided by ISP to be determined
12.17.1 4) COMPONENTS PROVIDED BY MED-LINK
Two secure web servers Two ISA Microsoft Firewalls or
equivalent Two SQL Server 2000 databases or equivalent
One Cisco 2600 router or equivalent provided by ISP One
Nexland router or equivalent for redundancy and backup
5) COMPONENTS PROVIDED BY HOSPITAL
Point to point T-1 connection between Med-link and
Hospital High speed internet connection within Hospital
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EXHIBIT II
Although the Implementation Plan calls for specific targets with respect to
timing it may take longer or shorter periods. Med-link expects that it would not
take longer than six months from the start date to implement VPN.
12.18 Implementation Plan
1) HARDWARE Estimated time of two weeks
--------
a. Router setup and configuration at Med-link and Hospital
for the Point-to-Point connectivity.
b. Installation and provisioning of the Point-to-Point T1
line. (Already completed by ISP to be determined)
2) SOFTWARE Estimated time of five weeks
--------
A) Hospital data Integration, with respect to data
conversion.
B) Creation of Lab Work web pages.
C) Internal bug corrections and functionality preps and
tests
ESTIMATED TIMELINE
At the end of the two week period
1) Connectivity between Med-link and Hospital.
Med-link has capability of accessing data through VPN
At the end of the four week period
1) Hospital data is converted and integrated into the
Xxxxxxx000.xxx application
2) Hospital and Med-link have completed their automated
conversion process and data transfer.
At the end of the five week period
1) System ready for Physician Users login and access of
their respective messages, patient information and lab
results from any Internet ready web browser.
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At the end of the six week period
Acceptance Testing whereby Med-link will issue access
numbers and initial passwords to a limited number of
Physician Users selected by the hospital to test
system.
EXHIBIT III
BASIC SERVICES
LICENSE- Med-link hereby licenses to Hospital the use all equipment and software
that has been installed by Med-link or its agents for the proper use and
maintenance of the VPN for so long as this agreement is in place.
IMPLEMENTATION- Please see Exhibit II
TRAINING- Med-link will have a kick-off presentation for the hospital and
potential users as well as provide written notice of the services provided. Such
notices will be sent to all potential users, Hospital and affiliates. Med-link
will provide a tutorial manual that goes step-by-step on how to use
Xxxxxxx000.xxx. Also provided is a help section and a FAQ which is on the
website. It is assumed that the person knows how to operate a PC and use a web
browser like Internet Explorer.
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INTERFACES- Development and implementation will be provided by Med-link.
SUPPORT- Med-link will provide technical and customer support. Customer support
will be available during business hours 9-5 M-F. Questions regarding account
setup, cancellation, and billing will be handled by Med-link. Technical support
will be available 24/7 in form of e-mail. E-mail will be responded within a
24-hour period and if necessary phone calls for follow up. Technical support
will provide answers outside of what is provided in training. Also reports of
network outages and performance problems will be addressed here.
Network Availability:
Except for routine maintenance the VPN will be available twenty-four hours a day
and seven days a week. Access to the VPN may from time to time be interrupted,
restricted or unavailable as a result of connectivity or maintenance. In such
cases Med-link will provide notice to its users via the Medcall123 website.
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EXHIBIT IV
HARDWARE/SOFTWARE CONFIGURATION
The following configurations represent the minimum software and
hardware requirements to support an implementation of the Virtual Private
Network at Hospital's location. The cost of third party vendors in connection
with the implementation of the Med-link application will be negotiated by
Hospital.
Network connectivity:
The Hospital is expected to maintain the cost of the point-to-point T1
connection to Med-link and a dedicated POTS analog line for backup and
monitoring.
Internet connectivity:
The Hospital is expected to have universal Internet access with in the Hospital.
Interface connectivity:
The Hospital is expected to provide the data that will be remotely accessed by
the Physician Users.
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EXHIBIT V
RESPONSE TIME WARRANTY
Med-link is within industry standards of the W3C consortium. Accuracy of the
website data will provide near real-time performance where data may be updated
every 20 min. Xxxxxxx000.xxx will be available through the Internet. The
information delivered through the VPN to the Physician Users will depend on
various factors including the type of computer equipment, ISP providers the
Physician Users may be using and the speed of the transmission provided by their
ISP. Med-link gives no warranty of the data being fully accurate but will
provide facilities to track wrong information through various checks in our
systems.
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EXHIBIT VI
SECURITY FEATURES OF MED-LINK
Med-link is taking all commercially reasonable steps that are in its control in
accordance with industry standards to ensure secure connectivity for the
Hospital and its Physician Users through the VPN. Such steps would include
implementing the following:
SECURE SESSION
SSL (Secure Socket Layer)
a) Provides security on the browser level using 128-bit encryption.
b) Public certificates issued from Verisign.
c) To prevent unauthorized viewing of data and passwords over the Internet.
d) All authorized users will be issued passwords
SECURE SESSION STATE
Application layer ensuring that user has logged on and can
only view their own data.
FIREWALL
Med-link is utilizing Microsoft ISA at the Internet
interface to protect Med-link's network from hackers.
POINT-TO-POINT T1
Direct private T1 from Med-link to Hospital
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SCHEDULE A
PAYMENT SCHEDULE
COMPENSATION
Except as described in exhibit 1 section 5 all other costs related to the VPN
will be xxxxx by Med-link. If additional services are required, Med-link will
provide services at a labor rate of $40.00 per hour, nevertheless all expenses,
if any will be approved by Hospital prior to performance of services.
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