EXHIBIT 10.12
CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTIONS OF THIS DOCUMENT HAVE
BEEN SEPARATELY FILED WITH THE COMMISSION.
EMAGEON UV, INC. MASTER TERMS AND CONDITIONS
ENTERPRISE AGREEMENT
THIS EMAGEON ENTERPRISE AGREEMENT (the "Agreement") is made this 5th day of May,
2004 (the "Effective Date"), by and between EMAGEON UV, INC. ("Emageon"), whose
principal place of business is at 0000 Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxxx,
Xxxxxxx 00000, and ASCENSION HEALTH, ("Ascension Health") whose principal place
of business is at 0000 Xxxxxxxxx Xxxx, Xx. Xxxxx XX. 00000. The parties have
structured this Agreement to permit Ascension Health and the Ascension
Affiliates, as defined in Section 1.1, to purchase Emageon's products and
services upon the terms and conditions contained herein. An Order Addendum will
be executed between Emageon and either Ascension Health or an Ascension
Affiliate to detail specifics regarding the products and services purchased.
Throughout this Agreement, the term "Customer" shall refer to any Ascension
Affiliate that is bound by the terms and conditions of this Agreement. Ascension
Health shall have no liability or obligations (financial or otherwise) under
this Agreement or on behalf of an Ascension Affiliate, unless otherwise
specifically set forth in this Agreement or if the Order Addendum is in the name
of Ascension Health.
1. DEFINITIONS. As used in this Agreement and in addition to any other
terms defined herein, the following defined terms will have the
following meanings:
1.1. "Ascension Affiliate" means any entity in or with which
Ascension Health: (i) is its sole corporate member; (ii) owns
more than a 20% ownership interest; (iii) has voting control
of the membership interests or managing board; (iv) has an
agreement to manage the entity's operations; (v) has
officially deemed the entity to be an affiliate via
contractual arrangement or memorandum of understanding which
agreement or memorandum is not solely for the purpose of
providing access to the special corporate discounts; or (vi)
has a contract to provide data processing services which are
not solely for the purpose of providing access to the special
corporate discounts. In addition, Ascension Affiliate shall
include any entity which is part of a chain of entities all
related in a manner described in items (i) through (vi) above.
1.2. "Ascension Ministry" means a group of Ascension Affiliates
that have been designated by Customer as an Ascension
Ministry.
1.3. "Clinical Information System" means an enterprise or
departmental electronic health record or departmental
information system (e.g. Radiology Information System) which
would require the presentation of medical images.
1.4. "CPI" means annual percentage increase set forth in the United
States Department of Labor Consumer Price Index, all Urban
Consumers, U.S. city average, all items with an index base
period of (1982-1984= 100).
1.5. "DICOM" means Digital Imaging and Communications in Medicine
and is the industry standard for transferring radiological
images and other medical information between computers.
Patterned after the Open System Interconnection of the
International Standards Organization, DICOM enables digital
communication between diagnostic and therapeutic equipment and
systems from various manufacturers.
1.6. "Eligible User Population" means all Customer employees,
agents, independent contractors, and customers who Customer
authorizes to access the SYSTEM.
1.7. "Emageon Software" means all computer programming/formatting
code or operating instructions created and/or designed by
Emageon. Emageon Software includes, but is not limited to, any
files necessary to organize, manage, store, transfer,
visualize, and retrieve DICOM images or HL7 messages, and
similar functions and underlying technology or components,
such as image processors, image compression, interface
programs that link other programs, customized graphics
manipulation
engines, and menu utilities, whether in database form or
dynamically driven, all as created and/or designed by Emageon
and as set forth in Attachment B of each Order Addendum.
1.8. "Facility" means a location utilizing the SYSTEM that is an
Ascension Affiliate and part of an Ascension Ministry.
Facilities shall be designated in each Order Addendum.
1.9. "First Productive Use" means the date when Emageon certifies
to Customer that the SYSTEM is fully capable of performing its
functions pursuant to its specifications.
1.10. "Hardware" means the hardware components necessary for the
operation of the SYSTEM as set forth in Attachment B of each
Order Addendum.
1.11. "Hardware Installation Acceptance" means, unless otherwise
provided herein or in the respective Order Addendum, the date
Emageon certifies completion of installation of the Hardware
in accordance with the mutually agreed upon written
installation schedule and plan. If Emageon is prevented from
installing the Hardware in accordance with the mutually agreed
upon written installation schedule due to Customer's inability
to take delivery, or begin installation of the Hardware, the
Hardware Installation Acceptance shall be fifteen (15) days
after the agreed upon written installation schedule.
1.12. "Implementation Services" means those activities associated
with the installation and integration of the SYSTEM and
described in the respective Installation Plan and as outlined
in Exhibit A hereto.
1.13. "Installation Acceptance" means the SYSTEM has been installed
and tested for a period of thirty (30) days from First
Productive Use and has been found to be functional and capable
of performing the functions that it is intended to perform
when operated by a knowledgeable operator under specified
operating conditions. Upon completion of the thirty (30) day
testing period, Installation Acceptance shall be effective. If
any nonconformity of the SYSTEM is discovered by the Customer
during the thirty (30) day test period, Customer shall notify
Emageon in writing immediately upon the discovery of such
nonconformity and Emageon shall make every effort to correct
such nonconformity within ten (10) days unless another period
of time is mutually agreed upon by both parties and evidenced
in writing signed by both parties. Should Emageon be prevented
from installing the SYSTEM in accordance with the mutually
agreed upon written Installation Plan due to delays caused
solely by the Customer then the SYSTEM shall be deemed
installed and accepted forty-five (45) days after the agreed
upon Installation Acceptance date as set forth in the
Installation Plan. Upon Installation Acceptance, Emageon shall
invoice the respective Customer for all fees associated with
the Installation Acceptance. Should Installation of the SYSTEM
be delayed solely due to the fault of the other party, the
delayed party may recover from the delaying party actual
expenses incurred as a direct result of such delay.
1.14. "Installation Plan" means the mutually agreed upon series of
milestones that must be accomplished and the target dates for
such milestones. A sample installation plan is set forth in
Exhibit F. A custom installation plan shall be developed for
each Customer Facility within two weeks, or as mutually agreed
upon, of the execution of an appropriate Order Addendum and
each such custom installation plan shall be incorporated into
the appropriate Order Addendum.
1.15. "Integrating the Healthcare Enterprise" (IHE) is a joint
initiative by the Radiological Society of North America (RSNA)
and the Healthcare Information and Management Systems Society
(HIMSS), focused on improving the way computer systems in
healthcare share information. IHE promotes coordinated use of
established communications standards such as DICOM and HL7 to
address specific clinical needs in support of efficient
patient care. A dynamic and evolving standard, IHE members
submit, negotiate and agree upon implementation profiles to be
used for transactions allowing medical images and patient data
to be shared across an enterprise.
1.16. "Intellectual Property Rights" means any and all rights
existing from time to time in any jurisdiction under patent
law, copyright law, moral rights law, trade-secret law,
semiconductor chip protection law, trademark law, unfair
competition law, or other similar rights.
1.17. "Material Breach" means that either party fails to carry out
its obligations as set forth in this Agreement. Examples of
Material Breach include, but are not limited to, the failure
of the SYSTEM to perform
substantially in accordance with the documentation such that
the operations of the Customer are impacted OR the failure of
the Customer to make undisputed payments.
1.18. "Modality" means a medical acquisition device such as Magnetic
Resonance, Computed Tomography, Nuclear Medicine, Ultrasound
and the like used in clinical departments such as Radiology
and Cardiology.
1.19. "Order Addendum" means the document in substantially the form
of Exhibit I attached hereto that will be executed by Emageon
and a Customer for each order of Hardware, Software,
Implementation Services, and Professional Services.
1.20. "Professional Services" means those activities requested by
Customer that are beyond the scope of the Implementation
Services and Support Services as set forth in Exhibit B of
each Order Addendum. An example of Professional Services would
be migration of legacy data. Professional Services fees are
billed separately from the SYSTEM fees and shall be set forth
in a separate Statement of Work. Professional Services will be
provided to Customer at the Professional Services Rates.
1.21. "Professional Services Rates" means those rates for
professional services as set forth in Exhibit J hereto.
1.22. "Services" means use of and access to the SYSTEM.
1.23. "Software" means the combined Emageon Software and Third Party
Software.
1.24. "Study" means an imaging service or procedure request with a
DICOM Study Instance Unique Identifier, which may consist of
multiple series from multiple modalities.
1.25. "SYSTEM" means the Emageon Software, Third Party Software and
Hardware as generally set forth in Attachment B of each Order
Addendum.
1.26. "System Upgrades" means any improvement in the Software that
enhances or modifies the basic function of the Software or any
new software that Emageon markets as a replacement of or
upgrade to the Software.
1.27. "System Updates" means any improvement in the Software that
relates to operating performance but does not alter the basic
function of the Software.
1.28. "Third Party Software" means all computer software created by
a third party (whether supplied in this Agreement or licensed
during the term hereof) in which the intellectual property
rights are not owned by Emageon, including without limitation,
any computer software specified as such in Attachment B of
each Order Addendum.
1.29. "Total Accountability Services" means the highest level of
Emageon Service and Support options for software and hardware,
including but not limited to; extended service hours,
additional consulting and analysis services, system monitoring
capabilities, additional training services, integration
services, business and financial performance metrics and
reporting.
2. EMAGEON OBLIGATIONS.
2.1. Emageon shall provide Customer with use of the SYSTEM, which
shall be installed by Emageon in accordance with Exhibit A and
Attachment E of each Order Addendum and supported through the
term of this Agreement in accordance with Exhibit B.
2.2. Emageon agrees to work in good faith with Customer and the
Customer's Clinical Information Systems vendors, including but
not limited to those Clinical Information System vendors
listed on Exhibit K, to interface the SYSTEM with the
Customer's Clinical Information Systems. The appropriate fees
for such interface shall be agreed upon by both parties and
shall be set forth in the respective Order Addendum. In no
case shall the fees exceed the Professional Services Rates.
2.3. Within thirty (30) days of the execution of this Agreement,
Emageon shall name a relationship manager to be the primary
point of contact for all joint activities.
2.4. Emageon agrees to provide as part of the SYSTEM, * * *. Also,
Emageon agrees to provide as part of the SYSTEM, * * *. Note
that there are separate Professional Services fees for * * *.
Failure of Emageon to achieve the results in a commercially
acceptable fashion within the timeframes set forth above,
shall result in Emageon paying Customer liquidated damages
equal to * * *.
2.5. Emageon intends to provide * * * to be priced at mutually
agreed to rates. As of the date of this Agreement, Emageon
supports * * * within the Ultrastructure Software. However,
should Emageon not provide * * * as intended, there shall be
no recourse to Emageon or this Agreement.
2.6. Emageon agrees to work with Ascension to develop the proper
platform and network configuration to enable an infrastructure
that will allow multiple, geographically dispersed Facilities
to share efficiently in a single common archive. This solution
must allow for proper security and scalability to support a
multiple Facility implementation and comply with regulatory
constraints and common industry practices on medical record
access.
2.7. Emageon represents and warrants that it will continuously
provide support for and be actively engaged in research and
development with respect to the SYSTEM for a period that is
the lesser of: (i) * * *; or (ii) * * *. The foregoing support
shall be provided to Customer at no additional charges to
Customer except for fees set forth herein.
2.8. While at the Customer locations, Emageon and Emageon
employees, agents and subcontractors ("Emageon Personnel")
shall (1) comply with reasonable requests, standard rules and
regulations of Customer regarding personal and professional
conduct (including the wearing of a particular uniform,
identification badge, or personal protective equipment and
adhering to health care facility regulations which in some
instances may include health screening and testing, and
general safety practices or procedures) generally applicable
to such locations and (2) otherwise conduct themselves in a
businesslike manner. In the event that Customer determines in
good faith that the continued assignment to the project of one
or more persons is not in the best interests of Customer (and
provided the basis for such determination is not prohibited by
law), Customer shall consult with Emageon to that effect. Upon
such consultation, Emageon shall have a reasonable period of
time in which to investigate the matters stated in such
notice, discuss its findings with Customer and resolve the
problems with such person. If, following such period, Customer
requests replacement of such person, Emageon shall replace
that person with another person of suitable ability and
qualifications. However, where Customer notifies Emageon that
Customer has determined that the nature of the concern is such
that such person should be removed immediately from Customer's
account, Emageon shall immediately remove such individual(s)
from Customer's account pending such investigation and
discussion. In any event, any request by Customer to remove an
individual from Customer's account shall not be deemed to
constitute or require a termination of such individual's
employment by Emageon and in no event shall Customer be deemed
an employer of any such person. Notwithstanding the foregoing,
in no event shall Emageon be required to remove a person from
the project under this Section if Emageon believes in good
faith that doing so might subject Emageon to legal liability
for so doing, provided that Emageon provides Customer with the
rationale for its belief.
3. CUSTOMER OBLIGATIONS.
3.1. Customer shall have full responsibility for preparing,
maintaining and supporting those Modalities not provided by
Emageon in Attachment B of each Order Addendum. This includes,
but is not limited to, preventative maintenance, quality
control, following clearly defined technique and acquisition
procedures, and generally maintaining the system such that it
operates to its manufacturer's most recent specifications.
Further, the Customer is responsible for insuring these
Modalities are prepared to begin transmitting, and can
appropriately deliver DICOM data to the SYSTEM in the format
provided for by Emageon. In the event Emageon needs to provide
additional DICOM integration services, for
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non-standard DICOM integrations, additional Professional
Service fees will apply. Emageon may, in certain
circumstances, provide for, as identified in Attachment B of
each Order Addendum, a DICOM interface device to the legacy,
non-DICOM Modality. In this event, those DICOM interface
devices will be maintained by Emageon in accordance with
Emageon's responsibilities identified in Exhibit B.
Professional Services charges will apply for standard DICOM
modality integrations occurring outside the scope of this
Agreement.
3.2. Customer shall have full responsibility for preparing,
maintaining and supporting its information systems such as its
hospital information system, radiology information system and
any interface devices used to consolidate the information
systems. Typical support costs for these information systems,
which are the responsibility of the Customer, include general
maintenance, adding extra connectivity points and upgrades and
updates to those information systems.
3.3. Customer shall have full responsibility for preparing,
maintaining and supporting the necessary infrastructure
required to operate the SYSTEM. This includes, but is not
limited to, facilities, both wide area and local area
networks, heating and cooling systems, and electrical and
other energy sources, including uninterruptible power systems
and electrical back-up devices.
3.4. Customer shall be responsible for preventing any virus
infections, security breaches, and other disabling events
("Disabling Event") from damaging the SYSTEM. Consequently,
Customer shall use a reliable and commercially accepted virus
detection system on any software and hardware that interfaces
to the SYSTEM. Customer must also have in place antivirus and
information systems security policies and procedures. In the
event that the SYSTEM is subject to a Disabling Event,
Customer shall immediately notify Emageon and Emageon shall
work with Customer in order to bring the system back to
pre-Disabling Event status. All time, materials and expense
involved with Emageon's investigation, planning and execution
of a SYSTEM rebuilding plan shall be billed separately to
Customer at the Professional Services Rates. Additionally, any
SYSTEM down time attributable to a Disabling Event shall not
count against non-scheduled down time. Not withstanding the
foregoing, however, any Disabling Event resulting from an act
or omission committed in breach of Emageon's obligations as
set forth in this Agreement shall be remedied by Emageon at no
cost to Customer and any SYSTEM downtime attributable to such
a Disabling Event shall count against non-scheduled downtime.
3.5. Software Upgrades. Customer agrees that they will install all
Software Upgrades to the Emageon Software such that they are
never behind more than the version that was generally in
release * * *.
3.6. Within thirty (30) days of the execution of this Agreement,
Customer shall name a relationship manager to be the primary
point of contact for all joint activities.
4. USE AND ACCESS TO THE SYSTEM.
4.1. Subject to the terms, conditions and limitations set forth in
this Agreement, Emageon grants Customer and the Eligible User
Population a non-transferable perpetual right to access and
use the Software ("Perpetual License"). The rights granted
hereunder include without limitation the right to reproduce or
copy all or any portion of the Documentation included with the
SYSTEM in machine-readable or printed form as determined by
Customer to be reasonably required for its own internal data
processing needs. Customer may make and use as many copies of
the Software as are reasonably appropriate only for archival,
backup and recovery purposes. In connection with Emageon
performing the Services, Emageon may develop modifications to
the Software and/or new software programs (collectively, the
"Developed Software"). Emageon reserves all rights to the
Developed Software, including, but not limited to, all
Intellectual Property Rights therein. Emageon hereby grants to
Customer a non-exclusive, non-transferable right to use the
Developed Software solely for use with the SYSTEM and subject
to the rights set forth in this Section 4.
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4.2. The right to use the SYSTEM granted hereunder and the terms
and conditions of this Agreement shall cover all custom
Software and related Documentation developed on a
time-and-materials or flat-fee basis by Emageon at Customer's
request.
4.3. Customer will not remove any proprietary notices of Emageon or
third parties found in or on the Software. The Emageon
Software in both object and source code form, and all rights
to the Emageon Software, including but not limited to the
Intellectual Property Rights therein, are and will remain the
exclusive property of Emageon. Customer will have no claim of
ownership to the Intellectual Property Rights in the Emageon
Software or any Third Party Software. Customer will have no
right to sublicense either the Emageon Software or the Third
Party Software or allow access to the SYSTEM to unauthorized
users. All data-source documents provided by Customer and all
output based upon those documents shall remain Customer's
property.
4.4. Customer and Emageon acknowledge and agree that the provisions
of this Agreement do not prohibit Customer from utilizing a
third party to manage and operate the SYSTEM on its behalf
("Outsourcer"). Outsourcer shall have all the rights granted
to Customer herein solely for the purpose of providing
services to and making the SYSTEM available for Customer's
use.
5. PAYMENTS.
5.1. Fees. Pricing as set forth in Attachment C of each Order
Addendum is calculated based upon information provided and
approved by Customer as set forth in the Site Survey attached
as Attachment A of each Order Addendum. Should Customer add
equipment, Emageon shall work with Customer in good faith to
determine whether any additional charges should apply to a
change in its equipment configuration from that set forth in
Attachments A and B of each Order Addendum.
5.2. Overage Fees. Customer agrees that should a Facility * * * ,
Emageon may charge an Overage Fee equal to * * * of the
Ultrastructure Software and Maintenance fees for that
Facility.
In the event that the study volumes increase by more than * *
* for any reason other than those as set forth above in any
year over the projected study volumes for that year as set
forth in Attachment C of the respective Order Addendum,
Emageon may charge an Overage Fee equal to * * * of the
Ultrastructure Software and Maintenance fees for that
Facility. Payment for such overages, if any, shall be
considered one-time annual fees due to Emageon within thirty
(30) days of completion of such usage audit. Overage
calculations and related fees for any given year are
independent of overage calculations and related fees for any
other year. Customer also acknowledges that it may be required
to purchase additional hardware in order to support such
overage.
5.3. Billing. Emageon will xxxx Customer for all fees and expense
reimbursements due under the terms of this Agreement as set
forth in Exhibit C and in Attachment C of each Order Addendum.
Unless otherwise specified in this Agreement or an Order
Addendum, Customer will pay the undisputed amount of such xxxx
within thirty (30) days after the date of such xxxx. For each
year of this Agreement, Emageon will xxxx Customer the annual
fee on a pro rata monthly basis. Within forty-five (45) days
of the end of each year of this Agreement, Emageon and
Customer will perform an audit of the prior year's actual
billable amounts. Subject to Section 5.2 above, any amounts
due Emageon after the audit will be due thirty (30) days after
the date of the completion of the audit.
5.4. Late Fees. Emageon may assess Customer a late fee of 1% per
month (not to exceed the maximum allowed under state law) on
all undisputed balances not paid when due.
5.5. Disputes. Any fees subject to reasonable dispute by Customer,
provided that Customer has notified Emageon in writing of the
basis for the dispute within 30 days of date of disputed
invoice, will not be subject to monthly late fees or be used
as a basis for suspending the services. Should dispute not be
settled by members of the respective accounting departments
within 30 days of Emageon's receipt of notice of disputed
invoice, a face to face negotiation shall be conducted by
senior executive representatives of Emageon and Customer.
Should the executive representatives be unable to resolve
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such dispute within fourteen (14) days, either party may then
seek all remedies available at law. Should either party
institute an appropriate suit, the non-prevailing party in
such suit shall be responsible for any and all associated
costs, including reasonable attorney's fees.
5.6. Professional Service Fees. The Professional Service Rates
shall apply for all services rendered by Emageon which are
outside the scope of this Agreement. Reasonable and customary
expenses incurred by Emageon while engaged in such work,
including without limitation, expenses incurred for travel,
including local transportation, lodging and meals in
accordance with Exhibit E, will be billed to Customer at
Emageon's actual cost. Best efforts will be made by Emageon so
that no Fees outside the scope of this Agreement are incurred
without the prior written approval of the Customer.
5.7. Renewal Term Fees. For each renewal term, the Annual Support
and Maintenance fees for the Ultrastructure and/ or DICOM
Cache Manager Software License Fees shall be * * *. The fees
for the annual Support and Maintenance for both the
Ultrastructure and/ or DICOM Cache Manager Software as well as
the Ultravisual Software shall continue at the rates set forth
in this Exhibit C plus an adjustment to reflect the CPI for
the twelve (12) months immediately preceding the effective
date of the Renewal Term or * * *, whichever is lesser. All
other appropriate service fees as set forth herein shall be
billed to Customer at the then-current rates in accordance
with the terms of Exhibit C.
5.8. Expenses. Customer will pay or reimburse Emageon for any
reasonable out-of-pocket expenses, including, without
limitation, travel and travel-related expenses, incurred by
Emageon in connection with the implementation and support of
the SYSTEM pursuant to Emageon's expense and travel policy
attached hereto as Exhibit E.
5.9. Taxes. Customer will pay all sales, use, transfer, privilege,
excise, charges, surcharges or other taxes, and all duties,
whether international, national, state or local, however
designated, which are levied or imposed by reason of the
transactions contemplated hereby (collectively, the "Taxes");
excluding, however, income taxes on profits which may be
levied against Emageon. Customer will pay the amount of any
Taxes applicable to the transactions contemplated hereby, or
in lieu thereof, Customer will provide Emageon with a tax
exemption certificate acceptable to the applicable taxing
authorities. Customer will indemnify and hold Emageon harmless
from and against any and all losses, damages, penalties, costs
and expenses, including legal and accounting fees, incurred or
suffered by Emageon which result from or arise out of any
liability or taxes arising from a failure to pay Taxes under
this Agreement.
5.10. * * *
6. RECORDS.
6.1. Customer shall keep reasonably accurate records for a period
of one (1) year after the close of each calendar year during
the term of this Agreement sufficient to allow Emageon to
determine the amount of fees to be paid by Customer to
Emageon. Such records shall be open to inspection, upon five
(5) days prior notice to Customer, by Emageon or an
independent certified public accountant retained by Emageon at
its own expense; provided, however, that if as a result of
such audit it is determined that Customer has underpaid fees
by an amount greater than * * *, Customer shall reimburse
Emageon for the costs of such audit. Emageon reserves the
right to access Customer's SYSTEM in order to audit the SYSTEM
and verify the number of Studies stored. Emageon will not
adversely effect the clinical operations of the SYSTEM
whenever it gains access to the SYSTEM. The scheduling of all
such access shall be mutually agreed upon.
7. PROPRIETARY INFORMATION.
7.1. Definitions. For purposes of this Agreement, (a) "Confidential
Information" means any data or information of a party that is
valuable to such party or its owner and is not generally known
by the public, other than Trade Secrets; (b) "Trade Secrets"
means any information of a party including, but not limited
to, technical or non-technical data, a formula, a pattern, a
compilation, a program, a device,
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a method, a technique, a drawing, a process, financial data,
financial plans, the Software or any Third Party Software,
product plans, or a list of actual or potential customers or
suppliers which (i) derives economic value, actual or
potential, from not being generally known to, and not being
readily ascertainable by proper means by, other persons who
obtain economic value from its disclosure or use; and (ii) is
the subject of efforts that are reasonable under the
circumstances to maintain its secrecy; and (c) "Proprietary
Information" means Confidential Information and Trade Secrets.
7.2. Non-Disclosure. Each party acknowledges that during the term
of this Agreement, the other party may be providing certain of
its Proprietary Information to such party, including but not
limited to the SYSTEM, which will be maintained by Emageon,
and the DICOM images provided by Customer to Emageon. Each
party will take reasonable precautions necessary to safeguard
the confidentiality of the Proprietary Information of the
other party, including those taken by such party to protect
its own Proprietary Information. Without limiting the
foregoing, each party agrees that it shall not, without the
prior written consent of the other party, directly or
indirectly, copy, disclose, distribute, publish, reproduce,
decompile, reverse engineer, transfer or make use of the
Proprietary Information of the other party except in
connection with the rights granted under this Agreement. Nor
shall either party disclose the contents of this Agreement,
pricing in connection with this Agreement, or the content of
any Emageon proposal materials to any third parties except for
outside legal counsel and/or accountants; provided, however,
that should it become necessary to disclose said information
to a third party, the disclosing party shall notify the
non-disclosing party, in writing, in advance and the third
party shall execute the non-disclosing party's non-disclosure
agreement before the disclosing party discloses said
information. Emageon recognizes that relevant Proprietary
Information may be shared by and between Ascension Health and
Ascension Affiliates provided such individuals agree to be
bound by the terms of Non-Disclosure set forth in this Section
7.
7.3. Unauthorized Disclosure. If an unauthorized use or disclosure
occurs, such party will immediately notify the other party and
assist the other party in recovering its Proprietary
Information and preventing its subsequent unauthorized use or
dissemination. However, the restrictions of this Agreement on
use and disclosure of Proprietary Information shall not apply
to information that:
(a) is in the possession or control of the non-disclosing
party at the time of its disclosure hereunder;
(b) is, or becomes, publicly known through no wrongful
act of non-disclosing party;
(c) is received by non-disclosing party from a third
party free to disclose it without obligation to the
disclosing party; or
(d) is independently developed by non-disclosing party
without the use of any Proprietary Information.
7.4. Term of Non-Disclosure. The restrictions set forth in this
Section 7 shall continue (i) with respect to the Trade Secrets
for as long as such information continues to be a Trade Secret
under applicable law, and (ii) with respect to Confidential
Information, during the term of this Agreement and for a
period of five (5) years from the date of its expiration or
termination.
7.5. Use of Customer Proprietary Information. Customer grants to
Emageon the non-exclusive right to use Customer's Proprietary
Information (including any data) obtained under this Agreement
for Emageon's internal purposes in order to perform the
Services and as otherwise set forth in this Agreement. Nothing
in this paragraph shall limit Emageon's obligations under this
Section 7 in any way.
7.6. Use of Enhancements, Discoveries, Processes. All customized or
custom computer software programs developed by Emageon at
Customer's request, and all materials furnished by Emageon in
conjunction with such programs, shall be the exclusive
property of Emageon, * * *.
7.7. Confidential Information shall not include any protected
health information. Such information shall only be governed by
the terms of Exhibit D, the Business Associate Agreement
8. CUSTOMER INDEMNIFICATION.
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* * * CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION.
8.1. In addition to the other obligations of indemnification stated
herein, Customer will indemnify and hold Emageon and its
affiliates, officers, directors, employees, agents and
representatives harmless from and against all damages, costs,
expenses, and liabilities, including without limitation,
reasonable attorneys' fees and expenses, from any third party
claim of any kind against Emageon arising, in whole or in
part, from (a) Customer's negligence or willful misconduct
arising under this Agreement and (b) Customer's use of the
data accessed through the SYSTEM.
9. EMAGEON WARRANTIES AND INDEMNIFICATION.
9.1. Emageon grants Customer the limited, nontransferable warranty
that the Services will be (i) performed in a xxxxxxx-like
manner in accordance with normally accepted industry
standards, and (ii) performed by qualified personnel. If
Emageon fails to satisfy the foregoing warranty, then Customer
will notify Emageon in writing of such failure as soon as
reasonably practicable but in no event later than * * * after
completion of the Services.
9.2. Emageon represents and warrants that it either owns or has the
right to grant the rights set forth herein, and that the
Emageon Software does not infringe any third party copyright,
patents, trade secrets, or other proprietary rights,
enforceable in the United States. Emageon's sole liability for
any breach of the foregoing representations will be to
indemnify, defend, and hold Customer and its Eligible User
Population harmless from and against any and all losses,
damages, penalties, costs and expenses, including legal and
accounting fees, and to pay any final judgment or settlement
of any claim incurred or suffered by Customer which results
from or arises out of any claim or liability that the Emageon
Software infringes any third party copyright, patent, or other
proprietary rights enforceable in the U.S. or misappropriates
any third party trade secret enforceable in the U.S.
(individually, an "Indemnified Claim" and collectively, the
"Indemnified Claims"). The Indemnification set forth in this
Section is contingent upon Customer promptly notifying Emageon
of an Indemnified Claim, Emageon having the sole authority to
defend or settle the Indemnified Claim, and receiving the
reasonable assistance of Customer in connection therewith at
Emageon's expense. Notwithstanding the foregoing, Emageon will
have no indemnification obligation hereunder with respect to
any claim based on (i) use of the Emageon Software except in
accordance with this Agreement and Emageon's written
instructions, (ii) the combination of the Emageon Software
with any other software or hardware, unless as directed or
approved by Emageon (iii) modifications of the Emageon
Software not made by Emageon, or (iv) Customer's failure to
implement changes recommended by Emageon, that do not
materially alter the functionality or degrade performance of
the SYSTEM, if the infringement would have been avoided in the
absence of such combination, modifications or failure to
implement recommended changes. If the Emageon Software is
finally determined by a court of competent jurisdiction to
constitute an infringement of any third party patent,
copyright or other proprietary right enforceable in the U.S.
or a misappropriation of a third party trade secret and
Customer's use of the SYSTEM is enjoined, Emageon will either
(i) procure the right for Customer to continue to use the
SYSTEM as contemplated hereunder, or (ii) replace or modify
the SYSTEM with a version thereof that is not infringing and
that does not materially alter the functionality or degrade
the performance of the System. If a court of competent
jurisdiction determines that none of these alternatives is
reasonably available, Customer agrees that Emageon may
terminate Customer's and its employees' access to the SYSTEM
in accordance with the conversion and termination provisions
as set forth by such court. In the event of such termination,
Emageon agrees to * * *. This Section states the entire
liability of Emageon with respect to infringement or
misappropriation of any third party Intellectual Property
Rights by the Emageon Software and Emageon will have no
additional liability with respect to any alleged or proven
infringement. Emageon will pass to Customer all appropriate
warranties and indemnification provisions from third-party
suppliers.
9.3. In addition to the other obligations of indemnification stated
herein, Emageon will indemnify and hold Customer and its
affiliates, officers, directors, employees, agents and
representatives harmless from and against all damages, costs,
expenses, and liabilities, including without limitation,
reasonable attorneys' fees and expenses, from any third party
claim of any kind against Customer arising, in whole or in
part, from (a) Emageon's negligence or willful misconduct
arising under this Agreement and (b) Emageon's use of the data
accessed through the SYSTEM.
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* * * CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION.
9.4. Emageon shall provide, at no charge to Customer, * * *.
9.5. Emageon represents and warrants that the Software will be the
latest available releases, and that future releases and
engineering changes to the Software will not degrade
performance or remove functionality. Emageon warrants that the
SYSTEM will meet or exceed its published specifications.
9.6. Emageon represents and warrants that the Software as delivered
to Customer neither contains nor shall contain any "Disabling
Code" or "Unauthorized Code." As used in this paragraph the
term "Disabling Code" means any code, routine, or procedure
that has the effect of terminating or disabling execution of
the Software. As used in this paragraph, the term
"Unauthorized Code" means any virus, Trojan horse, worm, or
other code, routine, or procedure that (i) permits
unauthorized access to data, software, or systems; or (ii)
disables, erases, or otherwise damages software, hardware, or
data.
9.7. Emageon warrants and represents that the occurrence in or use
by the SYSTEM of any dates, including, without limitation, any
date with a year specified as "99" or "00," regardless of
other meanings attached to these values, and any date before,
on, or after January 1, 2000 ("Millenial Dates") will not
adversely affect its performance with respect to
date-dependent data, computations, output, or other functions
(including, without limitation, calculating, comparing, and
sequencing) and that the SYSTEM will create, store, process,
and output information related to or including Millenial Dates
without errors or omissions and at no additional cost to
Customer. At Customer's request, Emageon will provide
sufficient evidence to demonstrate the adequate testing of the
SYSTEM to meet the foregoing requirements.
9.8. Emageon agrees to work with each Facility to establish a
mutually agreeable performance expectation for the speed of
accessing and viewing the first image on the client
workstation monitor ("Response Time Service Level"). In each
Order Addendum, the Facility and Emageon shall mutually agree
to criteria for monitoring and measuring the Response Time
Service Level as is appropriate for such Facility's
implementation. The variables for this speed shall include but
are not limited to workstation capabilities and LAN
specifications set forth in the respective Order Addendum. In
the event that Customer workstation performance falls below
the performance expectation, in accordance with the Order
Addendum, Emageon will evaluate the cause of such diminished
performance and, at its cost, implement necessary modification
to allow Customer to achieve the mutually agreed upon
performance level. If Customer wishes to implement changes to
the Site Survey Specifications as set forth in the Order
Addendum, then Emageon shall provide new workstation and LAN
specifications to Customer and continue to honor the Response
Time Service Level.
9.8.1. Unless otherwise specified in the Order Addendum, the
Diagnostic Viewstation shall display the first image
of a fully processed, locally available, unread study
request within * * *. Provided, however, the
recommended specifications listed in the table below
are in place.
LOCAL AREA NETWORK RECOMMENDED
------------------ -----------
Within PACS Computer Xxxx 000XxxxX Switched
Two 1000BaseT multi-media fiber modules
with SC connection for Archive
Backbone between PACS Computer Room
and Radiology Xxxxxxxxxx 0000XxxxX
Modalities and CR Devices 10BaseT or 100BaseT Switched
Diagnostic Viewstations 1000BaseT Switched
Non Diagnostic and Web Viewing 100BaseT Switched
Secure remote LAN access VPN for remote diagnostic users
Note: Diagnostic performance criteria above assumes compliance with the
recommended specifications for Diagnostic Viewstation.
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* * * CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION.
10. CUSTOMER WARRANTY. Customer represents and warrants that: (i) Customer
is the owner, valid licensee, or authorized user of all data provided
to the SYSTEM and/or Emageon under this Agreement from whatever source;
and (ii) the use of Customer's data by Emageon as set forth in this
Agreement will not infringe the Intellectual Property Rights of any
third party or constitute a misappropriation of any third party trade
secrets, or constitute a defamation, invasion of privacy, or violation
of any right of publicity or other third party right. Customer will
indemnify and hold Emageon harmless from and against any and all
losses, damages, penalties, costs and expenses, including legal and
accounting fees, incurred or suffered by Emageon which result from or
arise out of any claim or liability arising as a result of a breach of
this Section.
11. DISCLAIMER OF WARRANTIES. EXCEPT AS EXPRESSLY INDICATED IN THIS
AGREEMENT, NEITHER PARTY MAKES ANY EXPRESS OR IMPLIED WARRANTIES,
CONDITIONS OR REPRESENTATIONS TO THE OTHER PARTY WITH RESPECT TO THE
EMAGEON SOFTWARE, THE THIRD PARTY SOFTWARE, THE SYSTEM, THE SERVICES
PROVIDED HEREUNDER, THE DATA, OR OTHERWISE, WHETHER ORAL OR WRITTEN,
EXPRESS, IMPLIED OR STATUTORY. WITHOUT LIMITING THE FOREGOING, ANY
IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, THE IMPLIED WARRANTY
OR CONDITION OF FITNESS FOR A PARTICULAR PURPOSE, AND THE IMPLIED
WARRANTY OF NONINFRINGEMENT ARE EXPRESSLY EXCLUDED AND DISCLAIMED.
12. TERM AND TERMINATION.
12.1. The term of this Agreement shall commence on the Effective
Date and continue in effect for a period which shall expire
with the expiration of the last effective Order Addendum
executed hereunder. Each Order Addendum shall have an initial
term of sixty (60) months ("Order Addendum Initial Term") and
shall automatically renew for additional ninety (90) day
successive terms or of a length as agreed upon in writing by
both parties (each a "Renewal Term"), unless either party
provides written notice to the other party at least ninety
(90) days prior to the end of the then-current term of its
intent not to renew the term of such Order Addendum.
12.2. In the event that either party hereto materially breaches or
defaults in the performance of any of its duties or
obligations under the Agreement and does not substantially
cure such breach or default within thirty (30) days after
being given written notice specifying the breach or default,
then the non-breaching/defaulting party may, by giving written
notice thereof to the breaching/defaulting party, terminate
this Agreement as of a date specified in such notice of
termination which in no event shall exceed one hundred and
eighty (180) days after the notice is given. In the event that
Emageon terminates this Agreement or an Order Addendum due to
a Customer's material breach or default, or Ascension
terminates this Agreement or a Customer terminates its Order
Addendum for any reason other than Emageon's material breach
or default, all remaining but unpaid fees relating to such
terminated Order Addendum shall accelerate and become due and
payable within thirty (30) days of termination. If the
Agreement is terminated as a result of Emageon's breach, any
fees paid by Customer for products and services at the
individual Facility impacted by such breach but unearned by
Emageon should be refunded retroactively to the date of
Emageon's breach. * * *.
12.3. Upon expiration of this Agreement or in the event of
termination of this Agreement by Customer for cause, Emageon
shall provide Customer * * *, or as mutually agreed by both
parties (the "Conversion Period"), Software Support and
Maintenance and other applicable Total Accountability Services
for the purpose of converting to a new system. After such
time, Emageon shall no longer have any obligation to provide
such support. During the Conversion Period, Emageon's support
fees shall be billed at the rate charged during the term
immediately prior to the expiration or termination of this
Agreement. Should Customer have terminated this Agreement
without cause or Emageon terminates the agreement for cause,
the aforementioned fees during the conversion period will be
increased by * * *.
12.4. Upon expiration or termination of this Agreement, Emageon will
provide, at no charge to Customer, Customer's data on the
media on which the data were stored during the term of this
Agreement. If other transfer of image archive data format is
desired, Emageon will provide documented software programs
that will migrate image files from the SYSTEM to removable
media. The data will be stored in DICOM Part 10 files,
according to the DICOM 3.0 standard, in uncompressed or
compressed format
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* * * CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION.
or the then current DICOM standard format or replacement
thereto. Any other data migration or conversion requested by
Customer will be performed under a separate agreement and will
involve additional charges. Emageon services, including
telephone support, associated with Customer data migration
will be charged at the Professional Service Rates.
12.5. Termination of this Agreement by either party pursuant to the
provisions of this Section 12 shall terminate each party's
obligations under this Agreement except for the provisions of
Sections 1 and 5-12, all of which shall survive termination of
this Agreement.
13. LIMITED LIABILITY.
13.1. BOTH PARTIES AGREE THAT THE OTHER PARTY AND ITS AFFILIATES,
OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS,
LICENSORS, OR REPRESENTATIVES WILL NOT BE LIABLE FOR ANY
INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY OR CONSEQUENTIAL
DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES OR COSTS
INCURRED AS A RESULT OF LOSS OF TIME, LOSS OF SAVINGS, LOSS OF
DATA, LOSS OF PROFITS, OR LOSS OF GOODWILL, WHETHER
FORESEEABLE OR UNFORESEEABLE, THAT MAY ARISE OUT OF OR IN
CONNECTION WITH THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO,
DAMAGES OR COSTS RESULTING FROM THE USE OR INABILITY TO USE
THE SYSTEM OR SERVICES, EVEN IF SUCH PARTY HAS BEEN NOTIFIED
OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES OR COSTS
OCCURRING, AND WHETHER SUCH LIABILITY IS BASED ON CONTRACT,
TORT, NEGLIGENCE, STRICT LIABILITY, PRODUCTS LIABILITY OR
OTHERWISE.
13.2. IN NO EVENT WILL THE COLLECTIVE LIABILITY OF EMAGEON AND
EMAGEON'S AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES,
SHAREHOLDERS, AGENTS, LICENSORS OR REPRESENTATIVES FOR ANY
DAMAGES INCURRED BY CUSTOMER EVER EXCEED THE FEES PAID BY
CUSTOMER TO EMAGEON UNDER THIS AGREEMENT DURING THE * * *
PRIOR TO THE TIME AT WHICH THE DAMAGES AROSE REGARDLESS OF THE
FORM OF ACTION, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE,
STRICT LIABILITY, PRODUCTS LIABILITY OR OTHERWISE EXCLUDING
SUCH ACTIONS ARISING FROM EMAGEON'S INDEMNIFICATION
OBLIGATIONS, GROSS NEGLIGENCE OR THE INTENTIONAL MISCONDUCT OF
EMAGEON, ITS EMPLOYEES OR AGENTS.
13.3. THE FOREGOING LIMITATION OF LIABILITY AND LIMITATION OF
REMEDIES CONTAINED IN SECTIONS 13.1 AND 13.2 SHALL BE
INAPPLICABLE TO DAMAGE RESULTING FROM THE NEGLIGENCE OR
INTENTIONAL MALFEASANCE OF EMAGEON, ITS DIRECTORS, OFFICERS,
EMPLOYEES, AGENTS, AND SUBCONTRACTORS.
14. NOTICES.
14.1. Any notice, approval, request, authorization, direction or
other communication under this Agreement shall be given in
writing and shall be deemed to have been delivered and given
for all purposes (i) on the delivery date if delivered
personally to the party to whom the same is directed; (ii) one
business day after deposit with a commercial overnight
carrier, with written verification of receipt, or (iii) five
business days after the mailing date whether or not actually
received, if sent by U.S. certified mail, return receipt
requested postage and charges pre-paid or any other means of
rapid mail delivery for which the receipt is available, to the
address of the party set forth below:
CUSTOMER: EMAGEON:
Ascension Health Emageon UV, Inc.
0000 Xxxxxxxxx Xxxx 0000 Xxxxxxxxx Xxxxx, Xxxxx 000
Xx. Xxxxx XX. 00000 Xxxxxxxxxx, XX 00000
Attn: General Counsel Attn: Chief Financial Officer
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* * * CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION.
15. MISCELLANEOUS.
15.1. Force Majeure. In the event that either party's performance
(other than the payment of fees) is delayed, prevented,
obstructed or inhibited because of any act of nature, fire,
casualty, delay or disruption in transportation, flood, war,
strike, lockout, epidemic, destruction or shut-down of
facilities, shortage or curtailment, riot, insurrection,
governmental acts or directives, any full or partial failure
of any communications or computer network or any cause beyond
such party's reasonable control, the party's performance will
be excused and the time for the performance will be extended
for the period of delay or inability to perform resulting from
such occurrence. The occurrence of such event will not
constitute grounds for a declaration of default by either
Party.
15.2. Publicity. Ascension Health reserves the right to review and
approve any press release and/ or marketing materials Emageon
plans to issue regarding the execution of this Agreement or
written materials identifying Customer as a customer of
Emageon unless included in a listing of ten (10) or more
customers.
15.3. Technical Advisory Councils. * * *.
15.4. Assignment. Neither party shall assign or transfer this
Agreement or any of its rights or obligations hereunder
without the prior written consent of the other, which consent
shall not be unreasonably withheld. This Agreement shall inure
to the benefit of and bind the parties' successors and
permitted assigns.
15.5. Waiver. The failure of either party to insist upon the
performance of any provision herein or to exercise any right
or privilege granted to it hereunder, will not be construed as
a waiver of such provision or any provisions herein, and the
same will continue in full force. The various rights and
remedies given to or reserved by either party herein or
allowed by law, are cumulative, and no delay or omission to
exercise any of its rights will be construed as a waiver of
any default or acquiescence, nor will any waiver of any breach
or any provision be considered a condonement of any continuing
or subsequent breach of the same provision.
15.6. Governing Law. The Agreement and the Services will be governed
by and interpreted in accordance with the internal laws of the
state of Missouri, excluding its conflict of law rules.
15.7. Interpretation. This Agreement sets forth the entire agreement
between the parties relating to the subject matter hereof, and
supersedes any and all prior agreements of the parties with
respect to the subject matter hereof.
15.8. Modification and Execution. No change, amendment or
modification of any provision of this Agreement shall be valid
unless set forth in a written instrument signed by the duly
authorized representatives of both parties. This Agreement may
be executed in counterparts, each of which shall be deemed an
original and all which together shall constitute one and the
same document. To the extent there is any conflict between
terms contained in the main body of this Agreement and the
exhibits to this Agreement, the terms contained in the
exhibits to this Agreement shall control. If any provision of
this Agreement shall be held to be illegal, invalid or
unenforceable, such illegality, invalidity or unenforceability
shall apply only to such provision and shall not in any manner
affect or render illegal, invalid or unenforceable any other
provision of this Agreement, and that provision and this
Agreement generally shall be reformed, construed and enforced
so as to most nearly give lawful effect to the intent of the
parties as expressed in this Agreement.
15.9. Regulatory Compliance. Emageon shall comply with the
provisions of the Administrative Simplification section of the
Health Insurance Portability and Accountability Act of 1996,
Public Law 104-91 ("HIPAA"), and the applicable requirements
of any regulations promulgated thereunder including without
limitation the federal privacy regulations as contained in 45
CFR Parts 160 and 164 (the "Federal Privacy Regulations"), as
and when such laws and regulations apply to Emageon in the
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* * * CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION.
capacity of Business Associate of Customer. Such provisions
are set forth in the Emageon, Inc. Business Associate
Agreement attached hereto as Exhibit D.
15.10. Access to Books and Records. To the extent that Section
952 of the Omnibus Reconciliation Act of 1980 ("Act") and the
regulations promulgated thereunder are applicable to this
Agreement, Emageon and the organizations related to it, if
any, performing any of the duties pursuant to this Agreement
valued at ten thousand dollars ($10,000.00) or more in any
twelve (12)-month period shall, until four (4) years after the
furnishing of Services pursuant to this Agreement, comply with
requests by the Comptroller General, the Secretary of Health
and Human Services, and their duly authorized representatives
for access (in accordance with Section 952 of the Act) to any
contract or agreement between Emageon and Customer for
Services and to any contract or agreement between Emageon and
such related organizations, as well as the books, documents,
and records of Emageon and its related organizations, if any,
which are necessary to verify the cost of the Services
provided.
15.11. Excluded Provider. Emageon hereby represents, and
warrants that it is not an excluded provider under the
Medicare/Medicaid programs ("Excluded Provider"). Furthermore,
in the event that Emageon is ever deemed to be an Excluded
Provider, Customer may terminate any and all payment
obligations to Emageon without resulting in a breach of the
Agreement and may terminate the Agreement without liability or
payment to Emageon. Any licenses granted hereunder to the
SYSTEM shall automatically convert to perpetual, royalty-free
licenses to use, copy, and modify such property for Customer's
internal use upon termination of the Agreement pursuant to
this Section 15.11. Emageon reserves the right of Assignment
as set forth in Section 15.4 so that its products and related
services may be transferred to a provider that is not
classified as Excluded.
15.12. Source Code * * *. Upon occurrence of one or more of the
foregoing * * *, Customer shall receive a perpetual, fully
paid-up, non-exclusive license to use * * *.
15.13. * * *.
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* * * CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their duly authorized representatives and made effective as of the Effective
Date.
ACCEPTED AND AGREED TO: ACCEPTED AND AGREED TO:
Emageon: Customer:
EMAGEON UV, INC. Ascension Health
By: /s/ W. Xxxxxxx Xxxxxxx By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------- -------------------------
Name: W. Xxxxxxx Xxxxxxx Name: Xxxxxxx X. Xxxxxxxx
Its: CFO Its: Chief Operating Officer
& Interim CEO
EXHIBITS
A. Emageon Archive and Distribution System Implementation Services
B. Emageon Support and Services
C. Term and Fees
C.1 Terms and Fees - Detail
D. Business Associate Agreement
E. Emageon, Inc. Corporate Travel Guidelines
F. Project Acceptance Process
G. Adoption Success Management Services
H. Emageon PACS Administrator Services
I. Order Addendum
J. Professional Services Rates
K. Clinical Information Systems Vendors
EXHIBIT A
EMAGEON ARCHIVE AND DISTRIBUTION SYSTEM
IMPLEMENTATION SERVICES
PROJECT MANAGEMENT
Joint Responsibilities
Emageon and Customer are jointly responsible for the management of the project
and for providing the necessary resources to the project. To be effective in
achieving these objectives, the project management team will establish:
- An agreed-upon baseline for scope, budget and schedule
- A process for monitoring progress
- A communication protocol
- An approach for dealing with issues
- A change control procedure
- An approach for formally accepting project deliverables
- A definition of what constitutes project completion
- Roles and responsibilities (Customer and Emageon)
- An approach for tracking and mitigating risk
- Training tools provided
The following table provides a high level overview of the major and minor
milestones that are typically accomplished during an implementation upon
execution of an Order Addendum.
PHASE MILESTONES
----- ----------
* * * * * *
Adoption Communication Planning - Communication and training plan - developed and
initiated
* * * * * *
* * * * * *
Emageon Responsibility
Emageon will coordinate and assume lead responsibility for the installation and
integration of the SYSTEM. Emageon will lead and work closely with Customer to
accomplish the listed activities below:
System Design And Design System Hardware And Software Configuration For
Configuration Projected Usage Volume And Required Redundancy.
Workflow And Operating Documentation Of System Configuration.
Procedures
Development Of Backup Strategy.
Documentation Of Administrator And User Procedures.
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* * * CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION.
* * * * * *
Functional Testing Functional Testing Of System Components.
Administrator and End Train Administrator(s) On Routine Operation,
User Training Maintenance, And Support Of System.
* * * * * *
Emageon will be the primary point of contact (POC) for all vendors providing
Emageon-supplied components and services. Customer will be POC for vendors
providing Customer-supplied components and services.
Customer Responsibilities (Details in Table A-4 - Site Readiness Survey)
- Provide Available Personnel and Facilities According To Mutually Agreed
Upon Installation And Implementation Schedule
- Provide Necessary Working / Office Space
- Provide Access To Facilities
- Provide Necessary Communications Support - Telephone, Internet Access,
Etc
- Insure Customer-Provided Facilities, Information Systems and Modalities
are prepared, maintained and operational for integration into the
SYSTEM
- Review Project Products Within A Given Time Frame
- Participate In Technical Meetings
- Deliver Information or Products To The Project
- Provide a Dedicated System Administrator Relieved of Duties Not Related
To The Implementation of The Emageon Solution
Customer will make personnel and facilities available according to a mutually
agreed upon schedule. In the event that activities must be rescheduled or
extended due to Customer's non-compliance with the agreed upon schedule,
Customer will bear the cost of rescheduling according to the then-current
professional service rates as specified in Exhibit J.
INSTALLATION ACCEPTANCE
The SYSTEM shall be deemed installed and accepted in accordance with Section
1.13 of this Agreement.
TRAINING
As applicable to the SYSTEM, * * *. As applicable to the SYSTEM, Emageon will
provide training for System Administrators, Diagnosticians, Technologists,
Physicians and applicable clinical staff. Emageon will provide refresher
training, as Customer deems necessary, with major upgrades to the SYSTEM.
* * *
TRANSITION TO SERVICE
Emageon will provide trained personnel to assist with the Transition to Service
of the SYSTEM. The SYSTEM will be deemed to have Transitioned to Service when
the agreed to tasks are complete.
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* * * CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION.
Customer will make personnel and facilities available according to a mutually
agreed upon schedule. In the event that activities must be rescheduled or
extended due to Customer's non-compliance with the agreed upon schedule,
Customer will bear the cost of rescheduling according to the then-current
professional service rates.
TRAVEL AND LIVING EXPENSES
Customer shall pay or reimburse Emageon for any out-of-pocket expenses,
including, without limitation, travel and travel-related expenses in accordance
with Sections 5.3, 5.4, 5.5 and 5.8 of this Agreement.
CHANGE ORDER PROCESS
In the event there is a need to modify the scope of this Agreement, a change
order process will be utilized. All change orders, which will be detailed in
writing and typically include SYSTEM and Service changes, will define the scope
of such changes which are outside this Agreement. The Emageon POC and Customer
POC will work jointly in creation of the change order. Emageon will not process
nor begin such work until written Customer approval is received. All payment
terms with respect to the change order requests will be defined in the change
order document.
EXHIBIT B
EMAGEON SUPPORT AND SERVICE
Emageon Services and related customer responsibilities are detailed below by
function. Customer shall perform the duties as assigned below.
GENERAL
Customer has full responsibility for hardware, software, and services that are
outside the scope of this Agreement. Customer must operate the equipment on an
ongoing basis, with software that has been approved by Emageon. Customer shall
not install any software or hardware on the SYSTEM without receiving prior
Emageon approval. Customer shall bear all expenses associated with Emageon
service in the event a SYSTEM issue is attributed to Customer installing
non-conforming hardware or software.
Emageon shall not be responsible for support of the SYSTEM if Customer modifies
the SYSTEM without Emageon's authorization.
CUSTOMER RESPONSIBILITIES
Customer shall be responsible for day-to-day operations of the SYSTEM, including
the equipment, preventative maintenance, operating systems and software
applications, and shall continue to provide first line support for the SYSTEM,
as set forth in the Agreement. Customer shall provide the necessary personnel to
meet its obligations under this section, with at a minimum, a dedicated,
full-time SYSTEM Administrator with the skills and experiences necessary to
perform the functions outlined below:
SYSTEM Administration
- Points of Contact To Emageon On SYSTEM Related Issues
- Day to Day Operations of SYSTEM
- Monitor Image Workflow and Procedures
- Archiving / Routing / Pre-Fetching
- Correcting Broken Studies
- Editing Patient Demographics
- Monitoring HIS / RIS Interface
- Monitor / Track System Performance
- Conduct Component / System Training
- SYSTEM Troubleshooting / Attempt Repair
- Assisting With Upgrades and Remote Repairs
- Document Issues Identified by End Users
Network Administration
- Perform Daily, Weekly, and Monthly Routine Maintenance Procedures as
Required
- Perform Backup / Disaster Recovery Procedures, Including Off-Site
Storage
- Perform File System Checks
- Manage / Size / Tune Storage Parameters
- Run Performance Tools
- Manage System Utilities / Generate Reports
- Monitor and Insure SYSTEM Security Procedures are Being Followed
- Maintain Site and Environment per Specifications
- Coordinate New Modality Integration (Post System Acceptance)
- Configure and Manage Network Settings
- Monitor / Analyze / Tune Network Infrastructure
Preventative Maintenance
Customer will perform daily and monthly routine maintenance procedures and
maintain the associated logbook of training provided at the time of
installation. These procedures include verification of automated daily backups
of the database and hierarchical storage management file structure and removal
of backup/disaster recovery copies of tapes to remote sites.
Customer will provide a location for off-site, waterproof, and fireproof storage
of back-ups and disaster recovery copies of data, databases, protocols and user
preferences.
EMAGEON SYSTEM AVAILABILITY
Guaranteed Emageon SYSTEM Availability
1. Emageon SYSTEM Availability is defined as the ability to archive,
distribute and view medical image data and interface with other
information systems. The Guaranteed Emageon System Availability will
become effective after the Emageon SYSTEM has been accepted at each
Facility as provided for in the Implementation Plan.
2. Emageon SYSTEM Availability is measured * * *, commencing with the date
of SYSTEM Acceptance and ending * * *.
3. If the Emageon SYSTEM is unavailable for more than * * * then the
affected Facility shall receive a credit * * *, to be applied to * * *,
equal to * * *. If the Emageon SYSTEM is unavailable for more than * *
*, then the affected Facility shall receive a credit * * * to be
applied to * * *, equal to * * *.
4. If the Emageon SYSTEM is unavailable for more than * * * during a * *
*, commencing from the SYSTEM Acceptance and measured thereafter * * *,
then such Facility may terminate the Agreement as it applies to such
Facility without penalty or additional charge ("Service Level Failure
Termination"). Further, if the Emageon SYSTEM is unavailable for more
than * * * during a * * *, commencing from the SYSTEM Acceptance and
measured thereafter * * *, then such Facility may terminate the
Agreement as it applies to such Facility without penalty or additional
charge ("Service Level Failure Termination").
5. The measurement for downtime will begin upon Customer providing notice
to Emageon of the SYSTEM unavailability, as required in this Exhibit B,
and will end upon the availability of the Emageon SYSTEM.
6. Scheduled maintenance and upgrades will not count as Emageon Software
downtime. Scheduled maintenance and upgrades will be scheduled at least
one week in advance and not exceed * * *. The foregoing limitations and
restrictions on scheduled maintenance and upgrades may be waived or
extended by mutual written agreement of Customer and Emageon.
7. Customer shall have full responsibility for Guaranteed Hardware
Availability. Hardware downtime will not count against Emageon Software
downtime unless such downtime was caused by the Emageon Software. Any
Hardware down time events, which cause the Emageon Software to fail,
will not count against non-scheduled Emageon Software downtime. In the
event a Hardware downtime occurs, thereby causing the Emageon Software
to fail, whether planned or not, all time, materials and expenses
involved with Emageon's support of such down time event, shall be
billed separately to Customer at Emageon's then current Professional
Service fees.
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8. Remedies provided for in this Exhibit are acknowledged and agreed to
serve as liquidated damages and not penalties.
Guaranteed Component Availability
1. Components are defined as equipment or software within the
SYSTEM that acquire, archive, distribute, and allow viewing of
medical image data (e.g. a DICOM Interface Box or a DICOM
Viewstation) and interface with other information systems. A
Component is unavailable if it cannot perform its design
function at rated capacity. The Guaranteed Component
Availability will become effective after the SYSTEM has been
accepted.
2. Component Availability is measured * * * assuming 365 days x
24 hours per day of operation each year.
3. Component downtime resulting in SYSTEM downtime will count
only toward the cumulative SYSTEM downtime.
4. If an Emageon Component is unavailable for * * *, then the
Facility shall receive a credit for such * * *, to be applied
to the subsequent * * * xxxxxxxx, equal to * * * of the * * *
Software Maintenance and Support Fee, for each unavailable
Component.
5. The measurement for Component downtime will begin upon
Emageon's receipt of notification, as required in this Exhibit
B, and will end upon the restoration of Component
Availability.
6. Scheduled maintenance and upgrades will not count as Component
downtime. These functions will be scheduled by mutual
agreement.
EMAGEON RESPONSIBILITY
Emageon will provide * * * during the term of this Agreement. These updates will
be scheduled in advance at a time agreed to be mutually acceptable. Emageon will
provide refresher training as Emageon deems necessary for SYSTEM Updates.
Emageon will provide SYSTEM Upgrades. Such upgrades shall be designed and
delivered at Emageon's sole discretion. These upgrades will be scheduled in
advance at a time agreed to be mutually acceptable.
Emageon will act as primary point of contact for all third-party products
comprising the SYSTEM.
Computed Radiography Plates
CR Cassette Plates are consumable products. Emageon warrants that the CR
Cassette plates that are included in the original CR purchase will be free from
defects for a period of ninety days after Installation Acceptance.
EMAGEON SERVICE SUPPORT
The Customer Technical Points of Contact (as designated in the respective Order
Addendum), will be the primary contact for all Customer users to report problems
associated with the equipment. The Customer Technical Points of Contact shall
notify Emageon of the existence of the problem by telephone and the parties
shall mutually classify each problem with a severity level using the criteria
set forth below. All contact to Emageon should be through the Emageon Service
Support line at 1-866-Emageon, option 4. Upon entry of the
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service ticket and classification of the severity level, Emageon shall
communicate to the Technical Points of Contact the ticket entry and
classification. To the extent the Technical Points of Contact, in their
reasonable opinion, disputes the severity level assigned, such Technical Points
of Contact may contact Emageon to reclassify the incident to a different
severity level. If an incident is reclassified, due to such reasonable dispute,
by the Technical Points of Contact the response time expectation for such
incident shall be the earlier of: (i) the designated response time for the
original severity level classification from the time and date of the original
incident ticket; or (ii) the designated response time for the new severity level
classification from the time and date of notice of reclassification by the
Technical Points of Contact.
Emageon standard service support is between the hours of 8 AM - 5 PM Central
time, Monday-Friday, excluding major holidays. Major Holidays include New Years
Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day, the day after
Thanksgiving, Christmas Eve, Christmas Day and New Years Eve. Emergency
telephone support will be available after standard hours, on weekends and
holidays, seven days a week. Emergency response times will target * * * or less
from first call for all other levels. * * *.
Emageon service engineers will provide remote support for the SYSTEM via
telephone and virtual private networks. The assigned service engineer will
provide timely and periodic feedback to Customer regarding the progress being
made in resolving the issue. As determined by Emageon, Emageon will provide
on-site support to resolve service issues. Once Emageon determines that on-site
support is required, Emageon will use its best efforts to place a qualified
individual on-site within * * *.
Upon notification, Emageon is responsible for any errors in the Emageon
Software. To the extent that an error is the result of third party Hardware or
Software, Emageon will use it's best efforts to resolve the issue. If the issue
is determined to be caused by the Customer, additional fees may apply at the
Professional Service Rates.
EMAGEON SUPPORT AND ESCALATION PROCEDURES
Support.
Upon receipt of notice from Customer, Emageon shall implement the
Support/Escalation Procedures described herein to ensure that appropriate
Emageon attention is given to Customer requests for support.
Severity Level 4 - Critical Problems.
The System or a significant component of the System is experiencing problems
which: (i) cause it to stop completely;(ii) materially degrade performance such
that Customer operations are in jeopardy;. Emageon shall provide telephone
response by a qualified technician within the Initial Response Time for Severity
Level 4 - Critical Problems as defined below. Within the Initial Response Time,
qualified personnel shall work to resolve the problem or condition. Emageon
personnel shall continue to work diligently until the problem is resolved.
Emageon shall demonstrate to Customer its good faith and diligent initiation and
prosecution of corrective measures. Emageon shall document the notification of
the problem, the severity level, the relevant circumstances and symptoms, and
the steps taken to diagnose the problem. Emageon shall take all necessary steps,
in its sole discretion, to resolve the problem promptly, and shall document such
corrective actions. If the problem condition is not resolved within the Target
Resolution Timeframe, Emageon shall dispatch expert on-site assistance to
Customer within * * *, as reasonably required. The response times applicable to
Severity Level 4 - Critical Problems is as follows:
* * *
Severity Level 3 - Serious or High Impact Problems.
The System is experiencing problems that cause a serious or high impact to the
SYSTEM. These problems are never enough to limit the use of the entire System,
meaning workarounds exists (If the Technical Points of Contact are not satisfied
with the timeliness of a workaround, they may escalate the incident to a
Severity Level
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4), but if the issue is not resolved within the Targeted Resolution time, it
would escalate to a Severity 4 - Critical Problem. Emageon shall provide
telephone response by a qualified technician within the Initial Response Time
for Severity Level 3 - Serious Problems as defined below. Within the Initial
Response Time, qualified personnel shall work to resolve the problem or
condition. Emageon personnel shall continue to work until the problem is
resolved. Emageon shall demonstrate to Customer its good faith and diligent
initiation and prosecution of corrective measures. Emageon shall document the
notification of the problem, the severity level, the relevant circumstances and
symptoms, and the steps taken to diagnose the problem. Emageon shall take all
necessary steps, in its sole discretion, to resolve the problem promptly, and
shall document such corrective actions. If the problem condition is not resolved
within the Target Resolution Timeframe, Emageon may, at its sole discretion,
dispatch expert on-site assistance to Customer. Mutually agreed upon temporary
fixes or workarounds, if available, will be implemented until a permanent
resolution is provided. The response times applicable to Severity Level 3 -
Serious Problems is as follows:
* * *
Severity Level 2 - Impaired or Medium Impact Problems.
The System is experiencing problems that cause minor applications, functions or
features to fail to operate. The problem is severe enough to limit the
usefulness of the affected part of the System, but does not hamper the rest of
the System's usefulness. Emageon shall provide telephone response by a qualified
technician within the Initial Response Time for Severity Level 2 - Impaired or
Medium Impact Problems as defined below. Mutually agreed upon temporary fixes or
workarounds, if available, will be implemented until a permanent resolution is
provided. If the problem has not been fully resolved within the Target
Resolution Time Frame as defined below, the issue will escalated to Severity 3 -
Serious Problem. The response time applicable to Severity Level 2 - Medium
Impact Problems is as follows:
* * *
Severity Level 1 - Minor or Low Impact Problems.
The System is experiencing problems that cause minor irritations but do not
inhibit the usefulness of the System or Products. Emageon shall evaluate and
prioritize the problem. Severity Level 1 -Low problems will be resolved as
mutually determined by both parties.
Conditions.
Conditions that apply to the problem resolution process are:
(a) All response times will be achieved at a rate of no less than * * * of
the time, as measured over no less than * * * period.
(b) Software products which are not produced by Emageon, but are components
of the System, will be handled in the same manner. However, time to
resolve a problem may vary depending upon the response by that third
party vendor. Under no circumstances will Emageon be responsible for
penalties or liabilities as a result of third party software failure.
(c) Customer may not revise any Initial Response Time or Target Resolution
Timeframes; however, if the problem results in the interruption of
Customer's business operations, Emageon will dispatch expert on-site
assistance to Customer at Customer's request, provided this is the most
expedient means to resolve the problem as determined by mutual
agreement of both Customer and Emageon.
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Emageon may revise the process and procedures by which it records, responds to
and resolves issues for Customer, provided such revisions provide general
improvements to either the speed or efficiency with which problems are
corrected.
ROUTINE MAINTENANCE
Emageon will perform remote SYSTEM verification tests on a regular basis to
monitor Hardware and Software performance and capacity.
SUPPORT AND SERVICE RATES OUTSIDE THE SCOPE OF THIS AGREEMENT
All service and support rates for services at Customer's request, and that are
outside the scope of this Agreement, will be billed at the Professional Services
Rates. In all cases, travel and lodging are billed separately.
EXHIBIT C
TERM AND FEES
SOFTWARE, SUPPORT & MAINTENANCE AND PROFESSIONAL SERVICES
Ascension Health commits to execute site-specific Order Addendums
covering the committed minimum software, support and maintenance and
professional services fees indicated below no later than the following
time periods shown below based on the pricing and terms included in
this Exhibit C * * *.
Table 1C: Ascension Commitment Table
* * * 6/30/06
Total $25,066,000
The pricing set forth in this Agreement is based upon a target of * * *
average annual study volume being achieved by June 30, 2006.
Sixty (60) days prior to the commitment dates listed above (see Table
1C); Emageon will provide to Customer documentation that compares the
total of the Order Addendums that have been executed at that time to
the commitment listed in Table 1C. Customer may use the aforementioned
sixty (60) day period to cure the committed amounts described in Table
1C.
The study volume and fee commitments listed in Table 1C above are in
part based on the deployment of the Emageon SYSTEM in * * * Terms and
fees associated with added or substituted Facilities will be computed
based on the terms and fees included in Exhibit C.1.
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Emageon Enterprise Agreement Page 26 Confidential
Customer agrees to make payments to Emageon as described below upon
execution of each Order Addendum by the ministries.
* * *
THIRD PARTY HARDWARE:
If the Customer acquires Hardware from Emageon, Customer shall pay
Emageon for the Hardware as follows:
- * * * of the Hardware fees shall be invoiced on the date the
Hardware is delivered, and the invoice shall be due and
payable within ten (10) business days.
- * * * of the Hardware fees shall be invoiced upon acceptance
of the Hardware by the Licensee, and the invoice shall be due
and payable within ten (10) business days.
- In the event of a partial Hardware shipment and upon mutual
agreement by the parties, Licensor may invoice Licensee on
that partial shipment. Provided, however, that the amount of
this partial invoice shall be exclusively for the items
contained in that partial shipment.
- At the time Hardware is ordered by Emageon, Emageon shall
provide Ascension Health Treasury with a detailed listing of
ordered Hardware. Emageon shall provide Ascension Health
Treasury with copies of all Hardware invoices for each
Facility and Emageon shall also provide, as an attachment to
the invoice, the details of what has been delivered to the
Facility.
- All Hardware, which is unpackaged, shall be considered "used
hardware" and shall not be returned unless such Hardware has
failed Hardware Installation Acceptance.
THIRD PARTY VENDED SERVICES:
- Shall be due monthly beginning at Installation Acceptance
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EXHIBIT C.1
TERM AND FEES - DETAILS
SPECIAL PRICING
The following Special Pricing shall apply to all Ascension Health Ministries
contracting under the Ascension and Emageon Enterprise Agreement.
EMAGEON ULTRASTRUCTURE (ARCHIVE AND DISTRIBUTION) SOFTWARE
Ultrastructure Software is currently priced on a "per study" and total volume
basis. The projected volumes as set forth in Attachment C of the individual
Facility supplement are used to calculate the Archive and Distribution Software
Fees for each Facility. The Ascension price reflects a per tier discount that
ranges from * * * of the Standard Price.
TABLE1: ULTRASTRUCTURE - LICENSE FEE PRICING CALCULATION TABLE
AVERAGE ANNUAL STUDY VOLUME STANDARD PRICE * * *
--------------------------- -------------- -----
10,000-14,999 $ 3.95 * * *
15,000-19,999 $ 3.16 * * *
20,000-24,999 $ 2.80 * * *
25,000-32,499 $ 2.75 * * *
32,500-39,999 $ 2.54 * * *
40,000-47,499 $ 2.31 * * *
47,500-54,999 $ 2.10 * * *
55,000-64,999 $ 2.00 * * *
65,000-74,999 $ 1.94 * * *
75,000-89,999 $ 1.81 * * *
90,000-104,999 $ 1.70 * * *
105,000-174,999 $ 1.57 * * *
175,000-264,999 $ 1.25 * * *
265,000-374,999 $ 0.98 * * *
375,000-504,999 $ 0.88 * * *
505,000+ $ 0.76 * * *
* * * ANNUAL MAINTENANCE FEES*
* To commence on the first anniversary of the date of Installation
Acceptance.
ULTRASTRUCTURE SOFTWARE INCLUDES THE FOLLOWING:
1. Emageon Enterprise DICOM Storage & Archive Manager Software
2. Emageon Enterprise Integration Software (price included with
HL7 & MWL)
3. Emageon Intelligent Content Distribution Manager
4. Emageon High-Availability (HA) Software
5. Modality Worklist Manager
6. HL7 Reliable Delivery Manager (Reliable Store and Forward)
7. JPEG 2000 DICOM Transfer Syntax Support
8. Primary Image Server Software (runs on Emageon Linux Servers)
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TO CALCULATE THE UPFRONT PERPETUAL LICENSE FEE FOR THIS PURCHASE:
STEP 1: Divide total study volume over five years by 5 to get an average annual
study volume (Example: 1,000,000 total studies over 5 years / 5 years = 200,000
average studies per year)
STEP 2: Using the average annual study volume locate the appropriate tier in
Table 1 (Example: * * *)
STEP 3: Multiply the tier rate in Table 1 by the total number of studies over 5
years to give you the total Emageon Ultrastructure perpetual software license
cost (Example: * * *)
TO CALCULATE THE ANNUAL SUPPORT AND MAINTENANCE FEE FOR THIS PERPETUAL LICENSE:
The Annual Support and Maintenance fee shall be calculated by multiplying the
perpetual license fee by * * *. After the first year of Annual Support and
Maintenance Fees, the Annual Support and Maintenance fees may be increased to
reflect the annual percentage increase in the CPI.
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EMAGEON ENTERPRISE DICOM CACHE MANAGER SOFTWARE
Emageon Enterprise DICOM Cache Manager Software is currently priced on a "per
study" and total volume basis. The projected volumes as set forth in Attachment
C of the Order Addendum are used to calculate the Archive and Distribution
Software Fees for each Facility. The Ascension price reflects a per tier
discount that ranges from * * * of the Standard Price.
TABLE1A: ULTRASTRUCTURE - DICOM CACHE MANAGER - LICENSE FEE PRICING
CALCULATION TABLE
AVERAGE ANNUAL STUDY VOLUME STANDARD PRICE * * *
--------------------------- -------------- -----
10,000-14,999 $1.97 * * *
15,000-19,999 $1.58 * * *
20,000-24,999 $1.40 * * *
25,000-32,499 $1.38 * * *
32,500-39,999 $1.27 * * *
40,000-47,499 $1.15 * * *
47,500-54,999 $1.05 * * *
55,000-64,999 $1.00 * * *
65,000-74,999 $0.97 * * *
75,000-89,999 $0.91 * * *
90,000-104,999 $0.85 * * *
105,000-174,999 $0.78 * * *
175,000-264,999 $0.63 * * *
265,000-374,999 $0.51 * * *
375,000-504,999 $0.44 * * *
505,000+ $0.38 * * *
* * * ANNUAL MAINTENANCE FEES*
* To commence on the first anniversary of the date of Installation Acceptance.
Emageon Enterprise DICOM Cache Manager Software supports all features of the
Emageon Enterprise DICOM Archive Manager Software and includes the following:
1. Serves as a local access point for a remote archive
May extend access from imaging center to hospital
May extend access from hospital to data center
2. Addresses distributed archiving environments
Provides the benefits of a centralized archiving solution
Provides performance of a local, dedicated archive
Provides local access in the event of WAN failure
Caches recently acquired / retrieved information locally
Reduces WAN bandwidth requirements / telecom costs
3. Proxy Service
Provides transparent access to remote information
Provides a full view and access to the enterprise archive
subsystem
Includes access to Legacy archives on the network
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4. Deletor Strategy Services
Least Recently Used (LRU)
Least Recently Written (LRW)
No Deletion Strategy
Study Deletion Veto Strategy
High/Low Water Xxxx thresholds
5. Extends capabilities of the Enterprise DICOM Archive Manager
Software
6. Transparent access to all data (location transparency)
EMAGEON ULTRAVISUAL SOFTWARE
Advanced Visualization tools are currently priced on a "concurrent
user" basis. The Emageon Advanced Visualization Software perpetual
license fees for Diagnostic and Clinical Workstation software at each
Facility shall be calculated by multiplying the number of concurrent
users for the respective type of workstation as set forth in Attachment
B of the individual Order Addendum by the appropriate Emageon Advanced
Visualization Software fee set forth below. The Emageon Advanced
Visualization Software perpetual license fees as set forth below
reflect a * * * discount from list price. If a Facility wishes to add
concurrent users after the initial term has begun, the associated fees
must be paid up-front.
1. * * *
ULTRAVISUAL ANNUAL SERVICE AND SUPPORT FEE
Annual Service and Support fee is * * * of the Discounted License Fee
for the Ultravisual Software. The Annual Service and Support fee shall
commence on the first anniversary of the date of Installation
Acceptance.
INSTALLATION AND ADOPTION SUCCESS MANAGEMENT
Implementation and Adoption Success service fees are currently priced
as a one time charge. These fees are set forth below in Table 1B of
this Exhibit C. * * *.
Computed Radiography (CR) implementation will require additional
charges.
1. TECHNICAL IMPLEMENTATION FOR ARCHIVE AND DISTRIBUTION
INFRASTRUCTURE
(Price per Archive Storage Manager as set forth in Attachment
B of the individual site supplement)
2. TECHNICAL IMPLEMENTATION FOR CACHE ARCHIVE AND DISTRIBUTION
UNIT
(Price per Facility Image Cache as set forth in Attachment B
of the individual site supplement)
3. TECHNICAL IMPLEMENTATION FOR PRIMARY IMAGE SERVER SOFTWARE
(Price per facility)
4. STANDARD ASCENSION ADOPTION SUCCESS MANAGEMENT IMPLEMENTATION
(Price per facility and duties of both parties as set forth in
Exhibit G)
5. MODALITY INTEGRATION FEE
(Price per modality)
TOTAL ACCOUNTABILITY SERVICE FEE
Emageon shall provide Total Accountability Services as defined in
Section 1.29 of this Agreement. These fees are set forth below in Table
1B of this Exhibit C. * * *.
1. EMAGEON TOTAL ACCOUNTABILITY SERVICE
(Price per facility per year)
PACS ADMINISTRATOR FEE
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Emageon shall provide, at Customer's option, PACS Administrator(s) to
provide the services as set forth in Exhibit H. The PACS Administrator
Fees are set forth below in Table 1B of this Exhibit C. The fees for
the PACS Administrator may be adjusted by mutual agreement to reflect
the prevailing market rate for such services.
1. ON-SITE PACS ADMINISTRATOR ANNUAL CHARGE
(Price per PACS Administrator)
If Customer chooses to provide their own PACS Administrator, then
Customer agrees to send their PACS Administrator through Emageon's PACS
Administrator training and certification process. Customer shall be
responsible for their travel related expenses.
* * *
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EMAGEON PROFESSIONAL SERVICES
Emageon Professional Services are currently priced on a "per study
tier" and unit basis. The projected volumes as set forth in Attachment
C of the individual Order Addendum are used to calculate the
appropriate per study tier and the applicable Professional Services
Fees for each Facility. The prices listed below reflect discounts that
ranges from * * * of the Standard Price.
EXPLANATION OF PRICES LISTED IN TABLE 1B:
ARCHIVE IMPLEMENTATION FEE (Price per Archive Storage Manager as set
forth in Attachment B of the individual Order Addendum)
CACHE IMPLEMENTATION FEE (Price per Facility Image Cache as set forth
in Attachment B of the individual Order Addendum)
IMAGE SERVER IMPLEMENTATION FEE (Price per facility)
ADOPTION SUCCESS MANAGEMENT FEE (Price per facility and duties of both
parties as set forth in Exhibit G)
MODALITY INTEGRATION FEE (Price per modality)
TOTAL ACCOUNTABILITY FEE (Price per facility per year)
PACS ADMINISTRATION FEE (Price per PACS Administrator per year)
TABLE 1B - ASCENSION PROFESSIONAL SERVICES - PER TIER PRICE TABLE
Average Annual Archive Cache Image Server Adoption Success
Study Volume Implementation Fee Implementation Fee Implementation Fee Management Fee
-------------- ------------------ ------------------ ------------------ ----------------
* * * * * * * * * * * * * * *
Modality Total PACS Admin.
Integration Fee Accountability Fee Fee
--------------- ------------------ -----------
* * * * * * * * *
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THIRD PARTY HARDWARE AND VENDED SERVICES
Emageon resells hardware (i.e., servers, storage, computed radiography
devices, DICOM conversion boxes) and Vended Services and Third Party
Software to support Emageon Software. Emageon will price all Hardware
and Vended Services to Ascension Ministries at a * * * markup to
Emageon's cost. Customer may acquire IBM and other hardware from a
third party; provided, however, that the hardware purchased must be in
accordance with Emageon specifications for warranty and service
purposes. Furthermore, Customer agrees to grant Emageon a right to bid
on purchases of PACS Hardware and Vended Service to be purchased by
Committed Facilities as defined herein on or before * * *. For purposes
of this paragraph, Committed Facilities means any Facilities that are:
(i) part of the following Ascension Ministries: * * *; and (ii) any
Facility that is listed in an executed Order Addendum.
FUTURE PRODUCTS
The contents of the Emageon Software as defined above, represent the
full functionality of the Emageon Software being sold to Customer under
this Agreement. Notwithstanding, System Upgrades and Updates as defined
in this Agreement, and covered under the Software Support and
Maintenance fees, the parties agree that any future, new product
offerings are not covered under this Agreement and will be sold
separately and then negotiated rates.
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Emageon Enterprise Agreement Page 34 Confidential
EXHIBIT D
BUSINESS ASSOCIATE AGREEMENT
This Business Associate Agreement ("BAA") is entered into as of May 5, 2004 in
connection with the Managed Use Agreement (the "Agreement") by and between
Emageon UV, Inc. ("Business Associate") and Ascension Health and its Ascension
Affiliates ("Covered Entity").
WHEREAS, the Agreement requires Business Associate to have access to and/or to
collect or create Protected Health Information ("PHI") in order to carry out
Business Associate's functions on behalf of Covered Entity.
WHEREAS, Covered Entity and Business Associate intend to protect the privacy and
provide for the security of PHI disclosed, collected or created by Business
Associate in connection with the Agreement in compliance with the Health
Insurance Portability and Accountability Act of 1996, Public Law 104-91
("HIPAA") and the regulations promulgated thereunder, including, without
limitation, the regulations codified at 45 CFR Parts 160 and 164 (the "Privacy
Rule"), 45 CFR Parts 160, 162 and 164 ("Security Rule"), and other applicable
laws.
NOW THEREFORE, in consideration of the mutual promises contained herein and the
exchange of PHI pursuant to this Business Associate Agreement, the parties agree
as follows:
1. DEFINITIONS
1.1 GENERAL RULE. Capitalized terms not otherwise defined in this BAA shall
have the same meaning as those terms in the Privacy Rule and Security
Rule.
1.2 HIPAA means the Health Insurance Portability & Accountability Act of
1996, P.L. 104-91.
1.3 HIPAA REGULATIONS means the regulations promulgated under HIPAA by the
U.S. Department of Health and Human Services, including the Privacy
Rule and Security Rule.
1.4 PRIVACY RULE means the Standards for Privacy of Individually
Identifiable Health Information, codified at 45 CFR parts 160 and 164,
Subparts A and E, as currently in effect.
1.5 PROTECTED INFORMATION means Protected Health Information ("PHI")
provided by Covered Entity to Business Associate, or created or
received by Business Associate on Covered Entity's behalf.
1.6 SECURITY RULE means the Security Standards for the Protection of
Electronic Protected Health Information, codified at 45 CFR Parts 160,
162 and 164, as currently in effect.
2. BUSINESS ASSOCIATE OBLIGATIONS
2.1 Use and Disclosure of Protected Health Information. Business Associate
will: (a) use and disclose all PHI only as permitted or required to perform its
obligations under the Agreement, including this BAA, or as required by law; and
(b) will not use or further disclose any PHI in a manner that would violate
HIPAA, if such use or further disclosure was made by Covered Entity.
2.2 Disclosures to Agents and Subcontractors. Business Associate shall
ensure that any agent or subcontractor to whom it provides PHI agrees in writing
to the same terms set forth herein regarding the Use and Disclosure of PHI,
including, but not limited to, implementation of safeguards, notice of
prohibited Use or Disclosure, mitigation of harmful effects, responses to
requests for access and amendment, and a term permitting immediate termination
of the agent's or subcontractor's agreement with Business Associate for improper
Use or Disclosure of Protected Information. Business Associate shall terminate
its agreement with any agent or subcontractor to whom it provides PHI if such
agent or subcontractor fails to abide by any material term of such agreement.
2.3 Permitted Uses of Protected Health Information. Business Associate may
use PHI only as follows: (a) for the proper management and administration of
Business Associate; (b) to provide the Services described in or required by
Emageon Enterprise Agreement Page 35 Confidential
the Agreement and any additional or other services described in any addendum or
modification to the Agreement agreed to by Business Associate and Covered
Entity; (c) to carry out legal responsibilities of Business Associate; or (d) to
report violations of law to appropriate Federal and State authorities consistent
with 45 C.F.R. Section 164.502(j)(l).
2.4 Permitted Disclosures of Protected Health Information. Business
Associate may disclose PHI only as follows: (a) to authorized persons designated
by Covered Entity in writing; (b) to the patient that is the subject of the
information pursuant to procedures determined by Covered Entity and in
accordance with applicable law; (c) to a physician or other health care
professional authorized by Covered Entity in writing to access the information;
(d) to other persons as expressly requested in writing by Covered Entity and in
accordance with applicable law; (e) to persons under Business Associate's direct
control as necessary to satisfy Business Associate's obligations under the
Agreement; (f) to other agents and subcontractors of Business Associate only as
necessary to satisfy Business Associate's obligations under this Agreement and
only, if and to the extent, those agents and subcontractors agree to the same
restrictions and conditions on the use and disclosure of PHI that apply to
Business Associate through this BAA; (g) as required by law; and (h) for
Business Associate's proper management and administration or to carry out its
legal obligations if: (1) the disclosure is required by law or (2) Business
Associate obtains reasonable assurances from the person to whom the information
is disclosed that it will be held confidentially and used or further disclosed
only as required by law or for the purpose for which it was disclosed to
Business Associate and the person notifies Business Associate of any instances
of which it is aware in which the confidentiality of the information has been
breached.
2.5 Disclosures Required by Law. If a disclosure of PHI is required by law,
including pursuant to a request from a state or federal government agency or
pursuant to a subpoena or a court order in a judicial proceeding, Business
Associate shall promptly notify Covered Entity of such request, and Covered
Entity shall ___________.
2.6 Safeguards; Mitigation. Business Associate shall use appropriate
safeguards to prevent the use or disclosure of PHI other than as permitted or
required by the Agreement and this BAA or as permitted or required by law.
Business Associate agrees to mitigate, to the extent practicable, any harmful
effect that is known to Business Associate of use or disclosure of PHI by
Business Associate in violation of the requirements of this BAA.
2.7 Reports of Unauthorized Use or Disclosure. Business Associate shall
report in writing, within forty-eight (48) hours, to Covered Entity any use or
disclosure of PHI not provided for by this BAA of which it becomes aware.
2.8 Availability of PHI. Business Associate will make all PHI available to
Covered Entity and otherwise cooperate with Covered Entity to the extent
necessary for Covered Entity to comply with its obligations under 45 C.F.R.
Sections 164.524-528, including providing patients access to medical records, an
opportunity to amend incorrect information and an accounting of disclosures of
PHI. Business Associate further agrees to make its internal practices, books and
records, including policies and procedures and Confidential Information,
relating to the use and disclosure of PHI available to the Secretary of Health
and Human Services in a time and manner designated by the Secretary of Health
and Human Services, if necessary, for the purpose of determining Covered
Entity's compliance with HIPAA.
2.9 Electronic Protected Health Information. To the extent that Business
Associate creates, receives, maintains or transmits Electronic Protected Health
Information on behalf of Covered Entity on or after April 21, 2005, Business
Associate agrees to:
A. Implement Administrative, Physical and Technical Safeguards that
reasonably and appropriately protect the confidentiality, integrity and
availability of the Electronic Protected Health Information;
B. Ensure that any agent, including a subcontractor, to whom it provides
Electronic Protected Health Information agrees to implement reasonable
and appropriate safeguards to protect it; and
C. Report to Covered Entity any Security Incident of which Business
Associate becomes aware.
2.10 Limitations and Restrictions. To the extent that Covered Entity
notifies Business Associate of any limitations in its notice of privacy
practices under Section 3.2(A) herein; any changes in or revocations of
permission under Section 3.2(B) herein; or any restrictions under Section 3.2(C)
herein; Business Associate shall comply with such limitations, revocations or
restrictions, as applicable.
3. COVERED ENTITY OBLIGATIONS
Emageon Enterprise Agreement Page 36 Confidential
3.1 Requests. Subject to uses and disclosures permitted under this BAA,
Covered Entity shall not request Business Associate to use or disclose PHI in
any manner that would not be permissible under HIPAA if done by Covered Entity.
3.2 Required Notices.
A. Covered Entity shall notify Business Associate of, and specifically
identify, any limitations in its notice of privacy practices in
accordance with 45 C.F.R. Section 164.520, to the extent that such
limitations impose restrictions beyond those generally applicable under
HIPAA and may affect Business Associate's use or disclosure of PHI.
B. Covered Entity shall notify Business Associate of any changes in, or
revocation of, permission by an Individual to use or disclose PHI, to
the extent that such changes may affect Business Associate's use or
disclosure of PHI.
C. Covered Entity shall notify Business Associate of any restriction to
the use or disclosure of PHI that Covered Entity has agreed to in
accordance with 45 C.F.R. Section 164.522, to the extent that such
restriction may affect Business Associate's use or disclosure of PHI.
4. TERM AND TERMINATION
4.1 Term. This BAA shall commence as of the Effective Date and shall
continue in effect so long as the Underlying Agreement is in effect. Upon
termination of the Underlying Agreement for any reason, this BAA shall
automatically terminate, without action of the parties. Notwithstanding the
first sentence of this Section 4.1, if either party determines that this BAA is
no longer required, then either party may terminate this BAA upon written notice
to the other, and the Underlying Agreement shall thereafter continue in full
force and effect.
4.2 Termination for Cause. If Covered Entity determines that Business
Associate, or any of its agents or subcontractors, has breached any material
provision of this BAA, Covered Entity may terminate the Agreement if Business
Associate fails to cure a default or breach of a material term of this BAA
within fourteen (14) days after or, at Covered Entity's sole discretion, it
receives written notice of such default or breach from Covered Entity. If
neither termination nor cure is feasible, Covered Entity may report the
violation, if any, to the Secretary of Health and Human Services.
4.3 Effect of Termination. Except as provided herein, upon termination of
the Agreement or of this BAA for any reason (and if Business Associate and
Covered Entity do not enter into any comparable successor agreement or BAA),
Business Associate shall return or destroy all PHI, including Confidential
Information that is in the possession of subcontractors or agents of Business
Associate, and Business Associate shall retain no copies of the PHI. In the
event that returning or destroying the PHI is infeasible, Business Associate
shall provide to Covered Entity notification of the conditions that make return
or destruction infeasible and shall extend the protections of this BAA to such
PHI and limit further uses and disclosures of such PHI to those purposes that
make the return or destruction infeasible, for so long as Business Associate
maintains such Confidential Information.
5. MISCELLANEOUS
5.1 No Third Party Beneficiary. The provisions and covenants set forth in
this BAA are expressly entered into only by and between Business Associate and
Covered Entity and are intended only for their benefit. Neither Business
Associate nor Covered Entity intends to create or establish any third party
beneficiary status or right (or the equivalent thereof) in any other third
party, and no such third party shall have any right to enforce or enjoy any
benefit created or established by the provisions and covenants in this BAA.
5.2 Regulatory References. A reference in this BAA to a section in the Code
of Federal Regulations means the section as in effect or as amended, and for
which compliance is required.
5.3 Governing Law. This BAA shall be construed in accordance with the laws
of the State of Missouri.
5.4 Amendment. The Parties agree to take such action as is necessary to
amend this BAA from time to time as is necessary for Covered Entity to comply
with the requirements of HIPAA.
5.5 Interpretation. Any ambiguity in this BAA shall be resolved in favor of
a meaning that furthers the obligations to protect the privacy of the PHI in
accordance with the Privacy Rule or Security Rule, as applicable.
Emageon Enterprise Agreement Page 37 Confidential
5.6 Counterparts. This BAA and any exhibits hereto may be executed in one
or more counterparts; each counterpart shall be deemed an original.
5.7 Notices. All notices required or permitted to be given under this BAA
shall be in writing and shall be sufficient in all respects if delivered
personally, by nationally recognized overnight delivery service, or by
registered or certified mail, postage prepaid, addressed as follows:
If to Emageon: Emageon, Inc. If to Covered Entity: Ascension Health
0000 Xxxxxxxxx Xxxxx 0000 Xxxxxxxxx Xxxx
Xxxxx 000 Xx. Xxxxx XX. 00000
Xxxxxxxxxx, XX 00000 ATTN:
ATTN: CFO
Notice shall be deemed to have been delivered and given for all purposes (i) on
the delivery date if delivered personally to the party to whom the same is
directed; (ii) one business day after deposit with a commercial overnight
carrier, with written verification of receipt, or (iii) five business days after
the mailing date whether or not actually received, if sent by U.S. certified
mail.
IN WITNESS WHEREOF, the parties hereto have duly executed this Business
Associate Agreement as of the date set forth below.
Business Associate Covered Entity
Emageon UV, Inc. Ascension Health
By: /s/ W. Xxxxxxx Xxxxxxx By: /s/ Xxxxxx Xxxxxx
---------------------- ----------------------------------
Name: W. Xxxxxxx Xxxxxxx Name: Xxxxxx Xxxxxx
--------------------- --------------------------------
Title: CFO Title: SVP & Chief Information Officer
------------------- -------------------------------
Date: 5/6/04 Date: May 5, 2004
-------------------- --------------------------------
Emageon Enterprise Agreement Page 38 Confidential
EXHIBIT E
EMAGEON UV, INC.
CORPORATE TRAVEL GUIDELINES
INTRODUCTION
Emageon employees may be required to travel on official Company business from
time to time. Emageon will reimburse employees, within prescribed limitations,
for all necessary and actual travel expenses incurred while traveling on Company
business.
The Corporate Travel Guidelines, presented here, should facilitate the timely
reimbursement of employees for allowable travel expenses incurred during travel
on Company business. The guidelines address most common travel situations, but
they are not intended as a substitute for knowledge of existing Company policy
or IRS regulations.
Travel expenses may also be allowed as part of an employee relocation and
employee recruitment.
TRAVEL EXPENSE FORM
The Travel Expense Form is available as a general template for electronic entry
and presentation of travel and related expenses. The Form is designed to provide
the minimum information required to support expenditures incurred by employees.
The report accomplishes several objectives.
- First, it provides employees responsible for approving these
expenses with the necessary details to perform the task.
- Second, it provides Finance personnel with the information
necessary to account for these expenses consistent with
Company policies and IRS regulations.
- Third, it enables Finance to reconcile amounts reported by
employees as Company-paid items with invoices received from
vendors for such services.
TRAVEL EXPENSE PROCESSING & REIMBURSEMENT
Each employee is required to promptly submit expense reports that are complete,
timely and with appropriate receipts and documentation attached. Approval by the
employee's Department Head serves several purposes:
- First, it confirms that the purpose of the trip is to conduct
company business.
- Second, the charges are reasonable and appropriate under the
circumstances and consistent with Company policies.
- Third, the required documentation and receipts are attached.
With few exceptions, Finance will arrange for travel and related expenses to be
reimbursed within a week of submission of an approved expense report.
AIR TRAVEL
There are certain guidelines that apply to Air Travel.
1. The least expensive routing should always be sought. Book your
travel as far in advance as possible to qualify for more
economical prices.
2. Southwest Airlines is the preferred airline for travel to and
from Birmingham and other cities serviced by Southwest.
3. Coach class will be used for all flights, except in those
instances where the customer has contractually agreed to
reimburse the company for an upgrade to higher class.
4. Employees are not authorized to use personal frequent flyer
miles and charge the Company for the corresponding value.
5. The company does not provide memberships in airline travel
clubs at company expense.
6. The only acceptable receipt for airline travel fares is the
Passenger Receipt. Itineraries, boarding passes, credit card
receipts, etc. are not acceptable for reimbursement.
7. Employees are encouraged to use e-ticket services offered by
most airlines. These airlines email or provide printed
receipts and itineraries.
8. In the event the Passenger Receipt is misplaced, a copy is
available through the travel agency of record.
Emageon Enterprise Agreement Page 39 Confidential
USE OF RENTAL & PERSONAL VEHICLES
It may be necessary for an employee(s) to utilize a vehicle rented from a
commercial agency such as Hertz or National or their personal vehicle while on
Company business. Employees will be reimbursed for the use of their privately
owned vehicle at the IRS recommended mileage rate. Reimbursement for the use of
rental vehicles will be made in full as long as the vehicle was used exclusively
for Company business.
There are certain guidelines that apply to the use of Leased or Privately Owned
Vehicles.
1. Vehicles should be sized appropriately for the intended purpose.
Moderate size autos are encouraged.
2. When at all possible, fill up auto rentals with gas before returning
to the rental agency.
3. If you pay for auto rental charges by other than credit card, you are
subjecting yourself and the Company to liability for injury to
yourself, passengers in your vehicle or any other vehicle(s) involved,
pedestrians, and the physical damage to other vehicles and property.
4. The use of a credit card when renting a vehicle achieves two purposes.
You have the added insurance coverage the credit card company offers a
specified insurance coverage in the event of an accident this allows
you to decline the optional insurance offered by the rental agency.
If an accident occurs involving a privately owned or rental vehicle being used
for Company business, the following actions should be taken:
1. The vehicle operator or some other reliable person should
immediately report the accident to local, county or state
police.
2. At the accident scene, statements should not be made to anyone
except law enforcement officers. It will be necessary to
discuss the accident with insurance company representatives.
3. If possible, obtain pertinent information of other parties
involved in the accident such as name, address, telephone
number(s), driver's license number, and insurance information
of other parties involved in the accident.
4. In case of an accident in which there are serious injuries or
death, immediately notify your Manager/Department Head of the
accident. If the employee is unable to do so, then the first
employee having knowledge of the accident should make the
notification. This information should be reported to the CEO,
the CFO and the InHouse Counsel as soon as possible.
5. A complete report of the accident should be provided to the
InHouse Counsel within 24 hours of the accident if possible.
Employees operating a leased or privately owned vehicle are responsible for
operating the vehicle in a safe and prudent manner and in accordance with all
applicable federal, state, and local traffic laws. Fines assessed for traffic
citations or other violations of applicable traffic laws are the responsibility
of the employee and are not reimbursable.
HOTEL ACCOMMODATIONS
Employees will be reimbursed for actual accommodation expense incurred,
including the state/local taxes applied thereto. The official receipt from the
establishment must be submitted with the Travel Expense Report Form.
1. Travelers are expected to arrange the lowest-cost reasonable
accommodations, such as the Hampton Inn.
2. Charges for room rental and associated taxes should be
categorized by day. Other charges included on the hotel xxxx
for meals, telephone, fax and other services should be
reported on the applicable day and in the appropriate line on
the Travel Expense Report Form.
3. Laundry costs are reimbursable on trips longer than 4 nights.
4. Hotel/motel pay movies are not reimbursable.
ENTERTAINMENT
The company recognizes that a certain amount of customer entertainment is a
reasonable and customary business expense.
1. Caution must be exercised when employees of federal, state and
local government regulatory bodies or agencies are present
when entertainment expenditures are involved as applicable
federal and state laws severely limit the amounts that can be
expended in such situations.
Emageon Enterprise Agreement Page 40 Confidential
2. When it is proposed that the company pay for travel and
related expenses by non-employees, approval of the CEO and
President is required in advance.
3. All entertainment expense in excess of $25 must be supported
by a receipt. In addition, the individuals present, the nature
of the entertainment and an explanation provided in the
appropriate space on the expense report.
TRAVELER'S MEALS/BUSINESS MEALS
1. Employee meals are normally reimbursable only when away from
home on overnight travel.
2. Meals should be reported as breakfast, lunch or dinner on the
day incurred.
3. In general, lunch is the responsibility of the employee except
when traveling, or for a special occasion organized by the
company. In particular, luncheon expenses for meals involving
only employees who are in frequent contact with one another,
should be the responsibility of the individuals and not the
Company.
4. Receipts are required for any individual meal in excess of
$25; a credit card charge slip or cash register receipt are
acceptable but the names of the participants and the business
nature of the occasion must be indicated in the appropriate
space on the expense report.
5. Traveler's and business meals are subject to tax deductibility
limitation while Company meeting expense is a fully deductible
business expense. Therefore, it is important that your
expenditures are properly classified among these three
categories. The following are definitions of each of the three
expenses.
a. Employee's Meals - Cost incurred by an
employee for his/her meals while traveling
on Company business.
b. Business Meals - Report the cost of food or
beverages for one or more participants
(employees and non-employees) and the nature
of the business discussion that ensued. The
cost of the employee(s)' meal should be
included with the other participants and
reported as Business Meal/Entertainment. The
reporting requirements for such situations
are the same as for entertainment.
c. Company Meeting - Normally the cost of
meeting rooms, instruction materials and
supplies, meals and refreshments that are
incidental to a Company meeting will be
handled by a Company representative who will
make arrangements for their payment. The
Company representative responsible for the
arrangement is required to submit an expense
report identifying the participants and the
business purpose of the meeting. Individual
employees are required to submit expense
reports only if employee(s) incur travel
expenses other than those provided as part
of the proceedings. Normally, a Company
meeting will only involve Company personnel,
however when non-company personnel are
present, their expenses should be reported
separately.
TAXIS, TOLLS AND PARKING
1. The IRS (and the Company) requires receipts for taxi, airport
limo, bus, toll and parking charges.
POSTAGE, OFFICE SUPPLIES AND OTHER MISCELLANEOUS EXPENSES
1. The Expense Report form provides for travelers to report
office supplies and other miscellaneous expenses.
2. This feature is primarily intended for Sales Representatives
and other employees who reside outside of Birmingham and do
not have access to office supplies available at Emageon
office.
EXPENSE DOCUMENTATION
1. To comply with Internal Revenue Service documentation
requirements, receipts are required for all expenditures. In
the event a receipt is misplaced, a detailed note should be
included with your expense report.
Emageon Enterprise Agreement Page 41 Confidential
EXHIBIT F
PROJECT ACCEPTANCE PROCESS
THIS IS A SAMPLE INSTALLATION ACCEPTANCE PROCESS (NOT ALL COMPONENTS OF THIS
SAMPLE PLAN WILL BE APPLICABLE TO EVERY CUSTOMER. THIS DOCUMENT IS
INTENDED AS A SAMPLE ONLY.)
The acceptance process is divided into three phases:
Hardware Installation Acceptance
Installation Acceptance
Transition to Service
HARDWARE INSTALLATION ACCEPTANCE
The Order Addendum shall provide the specific detail for each
Customer. Unless otherwise provided herein or in the Order
Addendum, the Hardware shall be deemed accepted by Customer
when Emageon certifies completion of installation of the
Hardware. Should Emageon be prevented from installing the
Hardware in accordance with the mutually agreed upon written
installation schedule due to Customer's inability to take
delivery, or begin installation of the Hardware, then the
Hardware shall be deemed installed and accepted fifteen (15)
days after the agreed upon written installation schedule.
Customer agrees to pay all fees associated with the Hardware
acceptance to Emageon at that time. Should Installation of the
Hardware be delayed solely due to the fault of the other
party, the delayed party may recover from the delaying party
actual expenses incurred as a direct result of such delay.."
Emageon will perform and document the results of the Hardware
Installation Acceptance in accordance with the attached sample
below or as defined in this Agreement, if different from the
example. The Customer point of contact will observe the
analyses and sign-off on each task upon successful completion.
In addition to any other testing or checklist required to
confirm that the System conforms to the System Specifications,
the parties shall confirm the presence of the functionality
described and evidenced with a checkmark below, and such
functionality shall be included within the definition of
"System Specifications":
* * *
SYSTEM INSTALLATION ACCEPTANCE
The Order Addendum shall provide the specific details for each
customer. However, the following provides an excerpt from the
Order Addendum related to System Installation Acceptance.
Emageon will perform and document the results of the System
Installation Acceptance in accordance with the attached sample
below or as defined in this Agreement, if different from the
example. The Customer point of contact will observe the
analyses and sign-off on each task upon successful completion.
* * *
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Emageon Enterprise Agreement Page 42 Confidential
TRANSITION TO SERVICE
The final phase of the project is to transfer responsibility
for the Customer from Emageon Adoption Success Management (as
described in Exhibit G) to the Emageon Service Group. Since
the Emageon model demands that we earn our money every month,
the transition to Service is different in several ways. One
example is the Emageon Service Group utilizes a Continuous
Improvement Model. As part of the model, the implemented
system will be perpetually improved and upgraded to meet the
requirements as defined in the Customer contract.
During the implementation, every attempt is made to complete
open items related to system configuration, system
performance, training, etc. However, since open items will
usually exist, our model is designed for the Service the Group
to assume responsibility and manage open items, while
continually monitoring and improving the system.
The transition to Service begins during the ASM Integration
and Training phase. During this phase the Emageon Service team
will:
Conduct on site visits and perform equipment and workflow audits.
Become familiar with site layout and facilities
Meet the customer team
Monitor progress of project
Assist with Customer training
Validate remote monitoring and access capability
Verify site document is complete
As a part of the transition, ASM is responsible for completing
and transferring documented information related to the system
configuration, test results, and day-to-day operational
procedures as defined in the table below.
* * *
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Emageon Enterprise Agreement Page 43 Confidential
EXHIBIT G
ADOPTION SUCCESS MANAGEMENT SERVICES
Adoption Success Management (ASM) services, Emageon and related CUSTOMER
responsibilities are detailed below. Emageon and CUSTOMER agree to perform the
duties assigned to each of them, respectively, as set forth below.
OVERVIEW
ASM services are an Emageon developed, refined and tested methodology for
deploying Enterprise Image Management Systems (EIMS). ASM services may be
offered in conjunction with Emageon Implementation Services or may be an
"overlay" process to a 3rd party's implementation process. The service is
designed to be dynamic and configurable to an individual Facility's needs. The
ASM methodology utilizes skills in project management, change management,
clinical workflow and training with a focus on the applied principles of adult
learning.
The purpose of ASM services is to minimize the time required for an organization
to adopt an EIMS, maximize the effective value of an EIMS, and to mitigate the
organizational disruptions that may occur during a major information technology
implementation.
Emageon and CUSTOMER are jointly responsible for the success of the ASM project,
and for providing the necessary resources for the project.
* * *
CUSTOMER RESPONSIBILITIES
CUSTOMER shall:
- Be Responsible for The Adoption of the EIMS
- Provide Access To Necessary Personnel And Facilities Critical In The
Facilitation Of The ASM Project
- Provide Necessary Communications Support - Telephone, Internet Access,
Etc
- Insure CUSTOMER Provided Facilities, Information Systems And Modalities
Are Prepared, Maintained And Operational For Integration Into The EIMS
- Participate In ASM Meetings
- Participate, at its own cost, in Development of Materials, Including
But Not Limited To Marketing Materials, Training Guides, Communication
Tools and Similarly Related Materials for Deployment and Adoption of
The EIMS.
- Provide A Dedicated ASM Project Coordinator To Support And Facilitate
The ASM Project
- Shall Bear and Pay All Costs Associated With The Production of
Materials, Including But Not Limited To Marketing Materials, Training
Guides, Communication Tools and Similarly Related Materials for
Deployment and Adoption of The EIMS.
CUSTOMER Shall Make Personnel And Facilities Available According To A Mutually
Agreed Upon Schedule.
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Emageon Enterprise Agreement Page 44 Confidential
EXHIBIT H
EMAGEON PACS ADMINISTRATOR SERVICES
Emageon PACS ADMINISTRATOR Services and related responsibilities are detailed
below by function.
GENERAL
Where specified in an Order Addendum, Emageon will provide a PACS Administrator
(PA) for the duration of the Agreement to perform the duties as defined below.
The PACS Administrator will report to Emageon, but have day to day operational
reporting to a designated Customer manager.
Assumptions and General Understandings between the Parties:
- Standard hours for PA(s) are from 8 am to 5 pm CST. After
hours support will be handled through pager communications.
- Workload for PA shall remain consistent with normal, industry
accepted workloads for a trained and reasonably skilled
individual performing these functions. Ratios to be used for
determining acceptable workload shall include number of
radiologists, number of studies performed annually, number of
diagnostic reading stations, after hours reading requirements
and system accessibility requirements.
- PA shall be mutually selected by both parties.
Customer Obligations
1. Customer shall provide an adequate working space in or near the
facilities requiring PA services from the PA.
2. Customer shall provide the equipment necessary for the PA to perform
the necessary functions of the PA position. This equipment includes, at
a minimum, the following:
a) Telephone
b) Computer with access to the facility networks and Internet and
all necessary applications to perform the functions of PA
c) Pager for after hours on-call communications
d) Other tools and diagnostic equipment necessary for the
troubleshooting and repair of imaging equipment. Any third
party tools that modality vendors may require for
troubleshooting their products are the responsibility of the
Customer.
3. Customer shall provide, during the entire term of the Agreement, a
suitable "on-call" employee capable of performing the majority of the
PA's routine tasks. This on-call employee will be responsible for
managing the day to day operational duties during all hours when the PA
is not scheduled, including, but not limited to, additional work
shifts, vacation time, sick time, and scheduled Emageon Company
holidays.
4. Customer shall assign a manager for the purpose of assigning day to day
operational duties to the PA.
Emageon Obligations
1. Emageon shall provide the recruiting, hiring and training of
all PA resources required for performing the PA functions.
2. Emageon will provide a computer for access to Emageon
documents and all other materials necessary for the
performance of the PA functions.
3. Emageon will nominate a Supervisor for the PA for overall
management, training and disciplinary actions.
4. Emageon will be solely responsible for PA's compensation and
benefits.
Emageon will utilize all tools necessary for the troubleshooting and repair of
its contracted components.
Selection of PACS Administrator
The minimum requirements for the qualifications of the PA are outlined herein.
Emageon will identify qualified candidates and conduct formal interviews. Upon
completion of the interview process, Emageon will provide no less than two
qualified PA applicants for Customer review. Customer will select the preferred
candidate, and Emageon will extend a formal offer for hire of this individual.
In the event the preferred candidate cannot be hired for any reason, Emageon
will extend a formal offer for hire to the second candidate. The PA will be
scheduled to begin employment within thirty (30) days prior to or immediately
following the scheduled commencement of the implementation process.
PACS Administrator Review Process
Emageon Enterprise Agreement Page 45 Confidential
The PA will be reviewed for performance on a quarterly basis by the designated
Customer manager and will be reviewed once annually by both Customer and Emageon
for performance. All Designated Customer manager reviews will be sent to the
Emageon Human Resources Specialist within thirty (30) days of the end of the
evaluation period. Criteria for the performance review shall be mutually agreed
upon by Customer and Emageon. Any disciplinary action shall be at the sole
discretion of Emageon.
Disciplinary Action
If at any time, the designated Customer manager feels that the PA has engaged in
any violation of Emageon or Customer policy which warrants disciplinary action,
the designated Customer manager must notify the Emageon Human Resources
Specialist within three (3) business days of the actual violation or of becoming
aware of the violation by way of written correspondence outlining the details of
the violation. Any disciplinary action shall be at the sole discretion of
Emageon.
Termination of PACS Administrator
The PA may be terminated by Emageon for any reason by which Customer may
terminate any employee of the Customer, or for any reason by which Emageon may
terminate any Emageon employee, including failure to perform in accordance with
agreed criteria. A copy of Customer's employment terms and conditions must be
provided to Emageon upon execution of this Agreement.
Replacement of PACS Administrator
In the event of voluntary or involuntary termination of PA, Emageon shall
provide, within five (5) business days, a temporary replacement for the PA.
Emageon will provide, within 60 days, a permanent replacement for the terminated
PA, and will provide the required education and training necessary for the
replacement PA to perform the duties as identified below.
Grievance Policy
In the event the PA has an employment-related issue or conflict that cannot be
resolved through 1) discussions with the designated Customer manager and 2)
discussions with the appropriate Emageon manager, the Grievance Policy as set
forth in the Emageon, Inc. Employee Manual shall be followed.
Travel Policy
All travel, lodging and related expenses of the PA incurred on business
transacted at the request of the Customer will be submitted to Customer for
reimbursement according to the Customer's travel reimbursement policy. If
Customer does not have a published travel reimbursement policy, then the Emageon
policy shall prevail.
PACS ADMINISTRATOR FUNCTIONS
PACS Administrator
Functions Description
------------------------------- --------------------------------------------
Primary Communication Coordination and communication throughout
the project integration to all project
players for Emageon and customer.
System Installation Management of RIS/ PACS implementation
process including order review, project
planning, resource scheduling and
coordination, Facility specific system
configuration design, equipment scheduling.
Facilities Readiness and Assure that the customer site complies with
Preparation Emageon specified power, heat, dimension,
and network requirements. Monitor site
to assure site readiness, scheduled delivery
dates, and installation readiness.
Daily Operations Manage day-to-day operation of PACS
equipment including image workflow,
archiving, routing, pre-fetching, correcting
broken studies, editing patient demographics,
HIS/RIS interface
Emageon Enterprise Agreement Page 46 Confidential
PACS Administrator
Functions Description
------------------------------- --------------------------------------------
Support, troubleshooting
and issue resolution Document and communicate specific issues
identified by clinical users with respect to
Service issues, updates, progress and
resolution. Escalate and be an advocate for
customer support, issues and problems.
Disaster Preparedness,
Failure Correction and Recovery Initiate switchover to system and/or
component backup procedures as necessary and
report any system or component failures to
Emageon.
Perform daily, weekly, and monthly routine
maintenance procedures as required. Perform
backup/ disaster recovery procedures,
including off-site storage of tapes as
required.
Training and Internal PACS Support application programmers and end-user
Communications groups and communicate any requests for
moves, additions, and changes to the Emageon
system.
Monitor clinical workflow procedures and
make recommendations for improvement.
Conduct system/ component training.
Serve as PACS liaison to hospital departments.
PACS ADMINISTRATOR MINIMUM REQUIREMENTS
Competencies, Knowledge, Skills, and Abilities
1. Demonstrated ability to work independently and guide Customer
through operational improvement process.
2. Knowledge of Radiology workflow.
3. Knowledge of Radiology Department and Hospital employees,
roles and responsibilities.
4. Strong process orientation, problem solving and
troubleshooting skills, and a firm commitment to quality
5. Must have the ability to understand, relate, and build
confidence in customer.
6. Experience in DICOM protocol, general computer network
technology, high performance computing systems and archival
storage systems.
7. Excellent verbal and written communication skills- ability to
interface and influence at multiple organizational levels.
Preferred Education and Experience
1. BS degree in technical discipline preferred.
2. 5+ years in hospital information technology.
3. Licensed Radiology Technologist (R.T.) preferred.
4. Minimum 2 to 3 years project management experience working
with customers, vendors and leading cross-functional teams.
Emageon Enterprise Agreement Page 47 Confidential
EXHIBIT I
ORDER ADDENDUM
EMAGEON UV, INC.
ORDER ADDENDUM
FOR
This EMAGEON UV, INC., Order Addendum (the "ADDENDUM"), effective as
of _____________________ ("Effective Date") and entered into by and between
Emageon UV, Inc. ("Emageon"), whose principal place of business is at 0000
Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000, ________________, whose
principal place of business is at __________________________________ ("ASCENSION
MINISTRY"), and Ascension Health, whose principal place of business is at 0000
Xxxxxxxxx Xxxx, Xx. Xxxxx XX. 00000 ("ASCENSION HEALTH" OR "CUSTOMER") shall
supplement and amend, where indicated, the EMAGEON UV, INC., MASTER TERMS AND
CONDITIONS, ENTERPRISE AGREEMENT (the "MASTER AGREEMENT") entered into by and
between EMAGEON UV, INC. ("Emageon"), and ASCENSION HEALTH dated
___________________, 2004. By way of clarification, in the event of conflict
between the terms of the Master Agreement and this Addendum, this Addendum shall
be controlling.
1. The Master Agreement consists of the Enterprise Software Pricing for
the Facilities and Affiliates as well as a description of the
Implementation Service and the Maintenance and Support Services to be
provided by Emageon. Ascension Ministry hereby agrees to accept the
products and services set forth in the Master Agreement and in the
following Attachments, and Emageon agrees to furnish such products and
services, upon the terms and conditions of the Master Agreement and
this Supplement and its Attachments to the Facilities set forth in
Attachment D.
This Supplement includes the following attachments:
Attachment A: Site Survey
Attachment B: SYSTEM configuration
Attachment C: Terms and Fees
Attachment D: Facilities
Attachment E: Technical Points of Contact
Attachment F: Response Time Service Level Specifications
IN WITNESS WHEREOF, the parties have caused this Supplement to be executed by
their duly authorized representatives and made effective as of the Effective
Date.
ACCEPTED AND AGREED TO: ACCEPTED AND AGREED TO:
Emageon: ______________________________:
EMAGEON UV, INC. ______________________________
By: _____________________________ By: __________________________________
Name: ___________________________ Name: ________________________________
Its: ____________________________ Its: _________________________________
Ascension Health
By: __________________________________
Name: ________________________________
Its: _________________________________
Emageon Enterprise Agreement Page 48 Confidential
ATTACHMENT A
SITE SURVEY
Ascension Ministry agrees the attached Site Survey represents a list of all
image acquisition devices located at the Facilities and their respective volumes
and study sizes. Ascension Ministry agrees that such Site Survey represents all
image acquisition devices that shall be connected to the SYSTEM. Ascension
Ministry shall first notify Emageon prior to making any changes that would add
new image acquisition devices or change the acquisition parameters, which would
thereby increase volume and / or study sizes. Ascension Ministry acknowledges
that such changes could result in diminished SYSTEM performance or capacity
subject to adjustments as contemplated in Section 9.8 of the Master Agreement.
Additionally, such changes will likely result in additional charges to Ascension
Ministry including integration fees and additional hardware / storage costs
necessary to maintain SYSTEM performance.
* * *
-----------------------
* * * CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION.
Emageon Enterprise Agreement Page 49 Confidential
ATTACHMENT B
SYSTEM CONFIGURATION
The following components constitute the SYSTEM whether supplied by Emageon or
Ascension Ministry. Any components not specified in the table below that are
subsequently required or desired shall be Ascension Ministry's responsibility.
Where Emageon supplies components, Emageon reserves the right to substitute
components that provide equal or better capacity, performance, and reliability.
Emageon shall first notify Ascension Ministry prior to any substitutions.
Where Ascension Ministry supplies components, the components must meet or exceed
Emageon listed specifications. Ascension Ministry-supplied components must be
approved by Emageon prior to installation to ensure compatibility with Emageon
Software and Hardware components. Ascension Ministry is required to maintain
compatibility with Emageon Software and Hardware components. Emageon may charge
Ascension Ministry a certification charge for non-approved hardware and software
components.
Any SYSTEM support issues that are attributable to Ascension Ministry supplied
components may result in additional service fees to Ascension Ministry.
SYSTEM unavailability attributable to Ascension Ministry-supported components
shall not constitute SYSTEM downtime.
* * *
---------------------
* * * CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION.
Emageon Enterprise Agreement Page 50 Confidential
ATTACHMENT C
TERMS AND FEES
FACILITY - PRICING SCHEDULE AND TERMS [THE FOLLOWING TABLE IS TO BE COMPLETED
FOR EACH FACILITY]
* * *
---------------------
* * * CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION.
Emageon Enterprise Agreement Page 51 Confidential
ATTACHMENT D
FACILITIES
The following list represents the Facilities covered by this Order Addendum.
[INSERT LIST OF FACILITIES]
Emageon Enterprise Agreement Page 52 Confidential
ATTACHMENT E
TECHNICAL POINTS OF CONTACT
The following list represents the Technical Points of Contact for Ascension
Ministry. Ascension Ministry may amend this list upon notice to Emageon.
[INSERT LIST OF TECHNICAL POINTS OF CONTACT]
Emageon Enterprise Agreement Page 53 Confidential
ATTACHMENT F
RESPONSE TIME SERVICE LEVEL SPECIFICATION
The specific specifications for the Response Time Service Levels for the
Facilities represented by this Order Addendum are as follows:
[INSERT RESPONSE TIME PERIOD, DEMARCATION POINT FOR MEASUREMENT AND OTHER
RESTRICTIONS OR CONDITIONS FOR EACH FACILITY]
Emageon Enterprise Agreement Page 54 Confidential
EXHIBIT J
PROFESSIONAL SERVICES RATES
The Professional Services Rates listed below shall apply to those activities
requested by Customer that are beyond the scope of the Implementation Services
and Support Services as set forth in Exhibit B of each Order Addendum.
Professional Services fees are billed separately from the SYSTEM fees and shall
be set forth in a separate Statement of Work. Professional Services will be
provided to Customer at the Professional Services Rates.
PROFESSIONAL SERVICES HOURLY FEES
Service Representative (per hour) $ * * *
Application Specialist (per hour) $ * * *
Interface Programming (per hour) $ * * *
Systems Engineer (per hour) $ * * *
Integration HL7/DICOM Consulting (per hour) $ * * *
Senior Application Consultant (per hour) $ * * *
Clinical Consultant (per hour) $ * * *
Senior Clinical Consultant (per hour) $ * * *
Migration Services (per TB) $ * * *
* The above Professional Services Rates DO NOT include either Travel and Living
Costs.
---------------------
* * * CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION.
Emageon Enterprise Agreement Page 55 Confidential
EXHIBIT K
CLINICAL INFORMATION SYSTEMS VENDORS
- Cerner
- Eclipsys
- EPIC
- McKesson
- Meditech
- Siemens
Emageon Enterprise Agreement Page 56 Confidential
