Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
Exhibit 10.11
SERVICES AGREEMENT BETWEEN
ATHENAHEALTH, INC.
AND
VISION HEALTHSOURCE, INC.
THIS SERVICES AGREEMENT (the "Agreement") is entered into this December 9, 2002
(the "Effective Date") by and among VISION HEALTHSOURCE, INC., a Delaware
corporation with its principal place of business at 0000 Xxxxxx Xxxxxxxx Xxxxx,
Xxxxx 0000, Xxxxxx Xxxxxxxx 00000 ("Vision"), Vision Healthsource India Private
Ltd., a, ____________________ corporation with its principal place of business
at DP 110 (Second Phase) X-00, Xxxxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxx, 000 000,
Xxxxx ("Healthsource") and athenahealth, Inc., a Delaware corporation with a
principal place of business at Xxx Xxxxx Xx. Xxxxxxx, XX 00000 ("Athena").
Vision and Athena are referred to herein as the "Parties" and each as a "Party."
NOW, THEREFORE, in consideration of the mutual covenants hereinafter set
forth, the Parties agree as follows:
1) Provision of Services,
a) Services to be Provided. Under the terms and subject to the conditions and
obligations of this Agreement, Vision will provide, and Athena hereby accepts,
the services described in Exhibit A (the "Services")
b) Subcontracting. No subcontracting of the Services by Vision will be permitted
without prior written permission of Athena, provided that Vision may arrange for
the performance of some or all of the Services by its affiliated company,
Healthsource, pursuant to a transfer pricing agreement or other arrangement, and
provided further that Vision will remain subject to and responsible for its
obligations and undertakings in this Agreement by its terms. No other
subcontracting of the Services by Healthsource will be permitted without prior
written permission of Athena.
c) Changes. Athena may request in writing commercially reasonable changes in the
scope of Services delivered pursuant to this Agreement that do not alter the
fundamental nature of the obligations and/or the rights of either Vision or
Athena. Upon receipt of each such request from Athena (a "Change Request"),
Vision will evaluate the impact that the Change Request will have on the
resources required by Vision to perform the Services and the charges then
payable to Vision under this Agreement. Vision will give written notice to
Athena as to the results of such evaluation within fifteen (15) days following
the date of receipt of a Change Request, which response will indicate whether
Vision is agreeable to implementing the Change Request. If Vision is agreeable,
Vision will set forth: (i) the change in cost, if any, to Athena and (ii) the
schedule associated with implementing the Change Request. Athena will then
notify Vision in writing within fifteen (15) days of receipt of such notice from
Vision whether or not to implement the Change Request in accordance with
Vision's advice regarding cost and implementation schedule. Any change resulting
from a Change Request must be evidenced in the form of a written amendment to
this Exhibit A. Until and unless reduced to a mutually acceptable amendment,
executed by the parties to this Agreement, no Change Request will alter the
terms and conditions of this Agreement.
d) Communication Contact. Athena and Vision will each designate a project
manager who will act as a point of contact for all day-to-day matters relating
to the provision of the Services. The parties will provide a telephone number
and an e-mail address for their designated contact, to be utilized for purposes
of this Agreement. The communication contact will not have authority to modify,
formally or through a course of dealings, the material terms and conditions of
this Agreement.
2) Price and Payment.
a) Pricing. In return for the provision of the Services, Athena will pay Vision
a monthly fee (prorated for any partial month) as set forth in Exhibit A.
b) Additional Charges., In addition to the fees set forth in Exhibit A, Athena
will be responsible for payment of any and all excise, use and sales taxes
levied by the United states or by any state of the United States upon Athena and
upon Vision by reason of the Services, provided that Vision will promptly notify
Athena of the need to make any necessary filings with respect to such charges or
to pay such charges to the extent Vision has notice or knowledge thereof. Vision
and Healthsource will cooperate with Athena in any reasonable effort to limit
such charges or to seek legally appropriate refunds or abatements. Athena will
not be responsible, and Vision or Healthsource, will be responsible for payment
of property taxes, income and excise taxes, franchise taxes, employment taxes
and other taxes and tariffs levied on Vision or Healthsource by reason of either
their doing business, domicile, place of operations, retention and payment of
employees, status, revenue, or property. Athena is not responsible, and Vision
or Healthsource is responsible as the case may be, for any and all taxes,
tariffs or other charges imposed by any other governmental body or authority
other than the United States of or any state of the United States in connection
with the Services. Each party will indemnify and hold the other party harmless
from any taxes and/or any related interest or penalty and reasonable attorneys'
fees associated with any failure to fulfill its obligations as to taxes
hereunder.
c) Billing and Payment. Vision will xxxx Athena on a monthly basis for services
furnished during the previous month, net thirty days. All amounts payable
hereunder shall be paid to Vision in United States Dollars by wire transfer to
an account designated by Vision. To the extent that any xxxx is based upon items
such as time, number of transactions or operations, number of personnel or
similar quantifiable items or contains Additional Charges as set forth in
Exhibit A, each xxxx will set forth an account for such items and charges on
which it is based sufficient for Athena to verify any necessary calculations.
Vision's invoices will reflect any adjustments to past invoices required under
Exhibit A.
3) Term and Termination
a) Term. This Agreement will continue in effect for thirty-six (36) months from
the Effective Date (the "Initial Term"). Upon expiration of the Initial Term,
this Agreement will automatically renew for consecutive periods of twenty-four
(24) months each, unless one Party has given the other Parties written notice of
its intent to cancel at least six (6) months prior to the expiration of the then
current term.
b) Termination for Cause.
i) Notwithstanding the foregoing, Athena may terminate this Agreement if either
Vision or Healthsource: (a) materially breaches or defaults as to any of its
obligations or warranties hereunder or any conditions imposed upon it hereunder
(other than those obligations, warranties or conditions in Section 6) and does
not cure such breach or default within thirty (30) days after receiving written
notice from the terminating Party specifying the breach or default provided that
if the breach or default consists of the exceeding of any time requirement under
this Agreement by Vision or Healthsource and is not a part of a recurring or
persistent pattern of such breach or default, then such cure may consist of
measures described in writing to Athena that are reasonably acceptable in good
faith to Athena, that are reasonably calculated to avoid similar breach or
default prospectively and that are reasonably calculated to compensate Athena
for the effects of such breach or default in the past, (b) breaches the
obligations or conditions in Section 6, (c) makes any assignment for the benefit
of creditors, is insolvent or unable to pay its debts as they mature in the
ordinary course of business, (d) commits any material act of dishonesty, gross
carelessness or willful misconduct in performance of this Agreement, even if the
same would not otherwise constitute a breach of this Agreement; (e) has
instituted by or against it any proceedings in bankruptcy or under any
insolvency laws or for reorganization, receivership or dissolution (and if
involuntary, the proceeding is not dismissed within 60 days), or (f) in the
absence of such termination it is not possible for Athena to maintain an
effective compliance plan as described in Section 5 of this Agreement. A
termination pursuant to clause (a) or clause (f) above will be effective on the
date that is the last day of the notice period, unless the notice specifies a
later date which later date cannot be more than 30 days after the end of the
notice period, and pursuant to clauses (b), (c), (d) and (e) above will be
effective on the date of notice (each a "Termination Date").
ii) Vision may terminate this Agreement if (a) Athena materially breaches or
defaults as to any of its obligations or warranties hereunder or any conditions
imposed upon it hereunder (other than those obligations, warranties or
conditions in Section 6) and does not cure such breach or default within thirty
(30) days after receiving written notice from the terminating Party specifying
the breach or default (except that Athena will have only ten (10) business days
to cure any breach of any payment term of this Agreement) provided that if the
breach or default consists of the exceeding of any time requirement under this
Agreement by Athena and is not a part of a recurring or persistent pattern of
such breach or default, then such cure may consist of measures described in
writing to Vision that are reasonably acceptable in good faith to Vision, that
are reasonably calculated to avoid similar breach or default prospectively and
that are reasonably calculated to compensate Vision for the effects of such
breach or default in the past, (b) Athena breaches the obligations or conditions
in Section 6, (c) Athena makes any assignment for the benefit of creditors, is
insolvent or unable to pay its debts as they mature in the ordinary course of
business, (d) Athena commits any material act of dishonesty, gross carelessness
or willful misconduct in performance of this Agreement, even if the same would
not otherwise constitute a breach of this Agreement; (e) Athena has instituted
by or against it any proceedings in bankruptcy or under any insolvency laws or
for reorganization, receivership or dissolution, or (f) in the absence of such
termination it is not possible for Vision and Healthsource to maintain an
effective compliance plan as described in Section 5 of this Agreement. A
termination pursuant to clause (a) or clause (f) above will be effective on the
date that is the last day of the notice period, unless the notice specifies a
later date which later date cannot be more than 30 days after the end of the
notice period, and pursuant to clauses (b), (c), (d) and (e) above will be
effective on the date of notice (each a "Termination Date"). In addition to the
rights set forth above and
notwithstanding any other provision of this Agreement, Vision may terminate the
provision of services as to any client or customer of Athena without terminating
this Agreement by providing written notice thereof to Athena if in the absence
of such cessation it is not possible for Vision and Healthsource to maintain an
effective compliance plan as described in Section 5 of this Agreement, provided
that Vision provides to Athena before or at the time of such notice an
explanation for the cessation in enough detail to permit Athena to investigate
and verify it, provided that Vision's cessation of services to the Athena
customer will be effective on the date specified, which shall not be less than
30 days after provision of notice to Athena.
c) Termination without Cause. Notwithstanding the foregoing, either Athena or
Vision may terminate this Agreement at any time upon 180 days prior written
notice to the other. A termination pursuant to this subsection (c) will be
effective on the date that is the last day of the notice period, unless the
notice specifies a later date which later date cannot be more than 180 days
after the end of the notice period (also a "Termination Date").
d) Effect of Termination. Upon the Termination Date, Vision will immediately
cease providing all Services. Within fifteen (15) days after any termination,
Athena will pay to Vision any unpaid fees properly due for Services performed to
the date of termination, and Vision will credit (or pay in the event of a credit
that cannot be applied) any unapplied credits properly due with respect to
Services performed to the date of termination. Unless Vision has properly
terminated the Agreement under Section 3) b) ii) or unless Athena fails to
timely make the foregoing final payment, Vision will provide a reasonable amount
of assistance to Athena in connection with the transition of the Services to
Athena or a third party; provided, however, that without Vision's written
consent such assistance will in no event be required beyond the one month
anniversary of the Termination Date. Athena will pay Vision its reasonable fees
for such assistance, which fees will be consistent with those fees usually and
customarily charged by Vision to its customers for the services of the Vision
and Healthsource personnel involved for similar services, together with any
out-of-pocket costs reasonably incurred by Vision in connection with such
services. Vision may require a prepayment against such costs, based on a good
faith estimate communicated to Athena in writing. Notwithstanding the foregoing,
Vision may require Athena and any third party to which it renders assistance to
enter into a written confidentiality agreement with Vision, in a form reasonably
proposed by Vision, in connection with such assistance and, in no event, will
such assistance in the absence of such agreement require that Vision disclose to
Athena or to any third party any confidential or proprietary information which
is a trade-secret or held subject to similar considerations of confidentiality
or which is otherwise not adequately protected, in Vision's good faith judgment,
by patent, copyright or similar registration under a United States, India and/or
other applicable international statutory regime for the protection of
intellectual property.
4) Survival. Sections 3 d), 4, 7, 11, 12, 13, and 14 will survive any expiration
or termination of this Agreement and will continue in effect and binding upon
the Parties.
5) Compliance with Laws. Each Party agrees to comply with all applicable laws,
rules and regulations in its performance of this Agreement, including but not
limited to applicable healthcare and export laws, rules and regulations. Vision,
Healthsource and Athena will each implement and maintain an effective compliance
program consistent with the standards set forth in the United States Sentencing
Guidelines and the Compliance Program Guidance for Third
Party Medical Billing Companies issued by the Office of the Inspector General of
Health and Human Services; and, without limitation, Vision's compliance program
will substantially conform to the compliance materials presented to Athena in
Vision's written proposal for outsourced medical billing services dated February
22, 2002. To the extent that such compliance by a Party reasonably requires the
cooperation of or information from another Party, then such other Party will
cooperate and provide any information necessary at that other Party's own
expense, provided that no Party will be required hereby to waive rights that it
may have to refuse to disclose information that is confidential or proprietary
as defined herein, legally privileged, or by disclosing information to that
would violate any legal requirement or duty. Athena will contractually require
that all customers who receive services from Vision under this Agreement
cooperate promptly with Athena to provide accurate and full responses to any
material inquiry or concern related to and to any reasonable request for
clarification, documentation or further information related to billing. Athena
will enforce such agreement as reasonably required to assist Athena in
fulfilling its obligations hereunder. To the extent considered appropriate, each
party will, through legal counsel, discuss in good faith the entry into a joint
defense agreement by the parties with respect to such disclosure on such terms
as the parties may mutually agree. The Parties recognize that various laws and
regulations are developing in connection with the Services; and, they will
promptly negotiate in good faith to amend this Agreement as necessary so as to
incorporate any legally required contractual provisions and to allocate fairly
between them the costs and burdens, if any, associated with performance of
specific, legally required contractual features or measures beyond those set
forth herein or otherwise existing as of the Effective Date.
6) Audit. Each Party will keep accurate and appropriate business records of ITS
activities relating to this Agreement. Each Party will have the right to audit
the other Parties' records to the extent reasonably necessary to verify any
reports provided by such Party, to verify each Party's compliance with its
obligations under this Agreement or to verify any charge or payment amount. Such
audit will take place, upon reasonable written notice to the Party being
audited, during regular business hours, and at the principal offices of the
Party to be audited listed above or at a mutually agreed location. Vision and
Healthsource, between them will have the right to request an audit of Athena not
more often than twice during any consecutive twelve (12) month period. Athena
will have the right to request an audit of each of Vision and Healthsource not
more often than twice during any consecutive twelve (12) month period. At
Athena's written request, Vision and Healthsource will each promptly make
available to it business records detailing the basis for any charge billed to
Athena hereunder. All audits will be scheduled in such a manner as not to
interfere unreasonably with the operations of the Party subject to the audit.
Each Party is responsible for its own expenses associated with any audit.
7) Ownership of Data and Intellectual Property. Confidentiality.
a) All data, statistics, records, reports, programs, procedures, business
processes, formats, screens, functionality and similar items disclosed or
provided by Athena or obtained by Vision or Healthsource from Athena in the
connection with this Agreement, including but not limited to data and databases
consisting of data provided by Athena under this Agreement that have been
processed or altered by Vision or by Healthsource and the formats for such data,
are and will at all times remain the sole property of Athena or Athena's
customers.. No license is hereby granted
to either Vision or Healthsource in connection with such items, other than
permission to use such items as specified in this Agreement.
b) All data, statistics, records, reports, programs, procedures, business
processes, formats, screens, functionality and similar items disclosed or
provided by Vision or obtained by Athena from Vision in the connection with this
Agreement, other than data and databases consisting of data provided by Athena
under this Agreement that have been processed or altered by Vision or by
Healthsource and the formats for such data, are and will at all times remain the
sole property of Vision, including any software or other technology developed by
Vision in connection with the Services or in connection with establishing
electronic communication inter-face and/or connectivity with Athena, even if
developed specifically for Athena or provided directly or indirectly to Athena
in connection with the Services. No license is hereby granted to Athena in
connection with such items.
c) For purposes of this Section 7, and without limiting the scope of Sections 7
a) and b), the following terms have the following meanings:
"Confidential Information" will mean information concerning a Party's technology
or business that Vision or Healthsource receive from Athena or that Athena
receives from Vision or Healthsource in connection with this Agreement,
including, without limitation, computer programs and codes, data relating to the
disclosing Party's customers and customer transactions and other technical,
business, financial, customer and product development plans, forecasts,
strategies and information about the Party or its business. Except with respect
to Practice Information, "Confidential Information" will not include information
that (i) is otherwise agreed by the Parties in writing not to be Confidential
Information, (ii) is in or (through no improper action or inaction by the Party
receiving it or any affiliate, agent or employee) enters the public domain,
(iii) is established by the receiving Party using contemporaneous business
records to have to have been rightfully in that Party's possession or known by
it prior to receipt from the disclosing Party, (iv) is established by the
receiving Party using contemporaneous business records to have been rightfully
disclosed to the receiving Party by another person without restriction or (v) is
established by the receiving Party using contemporaneous business records to
have been independently developed by the receiving Party by persons without
access to the Confidential Information and without use of any such information.
No provision of this Agreement will prevent disclosure to a governmental entity
or agency in connection with any governmental or regulatory approval, or
pursuant to the lawful requirement or request of a governmental entity or
agency, provided that reasonable measures are taken against further disclosure.
"Practice Information" will mean a subset of Confidential Information that
consists of information accessed or received by Vision by reason of or in
connection with this Agreement concerning any customer of Athena or the patients
of any customer of Athena, including, but not limited to, financial information
and patient medical and demographic information.
d) Vision and Healthsource, to the extent that Vision subcontracts with it to
perform some or all of the Services, are authorized under this Agreement to
disclose and use Confidential Information of Athena only in performance of its
obligations or pursuant to its rights under this Agreement. Vision and
Healthsource will use reasonable precautions to maintain such
Confidential Information as confidential and to protect such Confidential
Information from unauthorized disclosure and without limitation will employ at
least those precautions in this regard that Vision employs to protect its own
similar information.
e) Athena is authorized under this Agreement to disclose and use Confidential
Information of Vision and Healthsource only in performance of its obligations or
pursuant to its rights under this Agreement. Athena will use reasonable
precautions to maintain such Confidential Information as confidential and to
protect such Confidential Information from unauthorized disclosure and without
limitation will employ at least those precautions in this regard that Athena
employs to protect its own similar information.
f) Without limitation of the obligations set forth herein with respect to
Confidential Information, Vision and Healthsource, to the extent that Vision
subcontracts with it to perform some or all of the Services, will:
i) Take reasonable, diligent and appropriate steps to maintain the security of
communication of Practice Information between it and Athena and to maintain the
security, availability and integrity of Practice Information in its possession
or control;
ii) Use any Practice Information only as necessary to provide the Services;
iii) Not disclose Practice Information to any individual or entity except to
Athena in connection with performance of this Agreement or to the medical
practice that is the source of such Practice Information;
iv) Not use or further disclose Practice Information in a manner that would
violate those reasonable contract terms between Athena and its customer
practices that are provided to Vision from time to time by Athena -in writing or
to knowingly cause Athena to violate such contract terms;
v) Not use or further disclose Practice Information in a manner that would
violate any federal, state or local law or regulation if done by Athena; and,
vi) Make reasonable efforts when using or disclosing Practice Information under
this Agreement to limit the information used to the minimum amount necessary to
accomplish the purpose intended under this Agreement.
g) Notwithstanding the foregoing, Vision and Healthsource, to the extent that
Vision subcontracts with it to perform some or all of the Services, may use
Practice Information internally for their own proper management and
administration, including but not limited to maintenance and enforcement of an
appropriate Compliance Plan under Section 5 above.
h) All steps and actions taken and procedures followed by Vision and
Healthsource with respect to security, use, and disclosure of Practice
Information will comply fully with all applicable provisions of any United
States Federal, state or local law regarding confidentiality of financial or
medical information.
i) Vision and Healthsource will implement reasonable and appropriate
administrative, technical and physical safeguards to prevent the use or
disclosure of Practice Information other than as expressly permitted by this
Agreement. Vision and Healthsource will cooperate fully with Athena and with
each Athena customer as requested in implementation by them of programs,
policies and procedures designed to assure compliance with relevant privacy and
security laws and with contractual privacy and security obligations to which
Athena or the customer may be bound.
j) Vision and Healthsource, to the extent that Vision subcontracts with it to
perform some or all of the Services, will each require in writing that all of
its personnel adhere to the requirements in these provisions; and, upon request,
will provide Athena with reasonable assurances that each of them has and will
meet the requirements in these provisions. Vision and Healthsource will each
make its internal practices, books and records relating to the use and
disclosure of Practice Information and relating to its Compliance Program
sufficiently available to Athena upon Athena's reasonable written request to
permit Athena to confirm their compliance with the terms of this Section 7 of
the Agreement. Upon reasonable request of Athena, Vision and Healthsource will
provide access by Athena personnel to facilities at which Practice Information
is kept or processed to permit evaluation by Athena of compliance by Vision and
Healthsource with this Section 7 of the Agreement.
k) Upon termination of Services under this Agreement for any reason, except as
otherwise may be reasonably required under this Agreement (including but not
limited to the provision of transition services), Vision and Healthsource will
each immediately cease any and all use of all Confidential Information,
including but not limited to, all Practice Information, and will immediately
return all such information in its possession to Athena.
l) Vision and Healthsource will each promptly report to Athena any use or
disclosure of Practice Information contrary to or not as provided for in this
Agreement and any such use or disclosure that it believes is imminent or is
likely to have occurred.
m) Vision and Healthsource will each make available all Practice Information as
may be required of it or of Athena by applicable regulations promulgated
pursuant to HIPAA and will each make its internal practices, books and records
relating to the use and disclosure of Practice Information available as required
of it or of Athena under any regulation promulgated pursuant to HIPAA.
n) To the extent required by law, Vision and Healthsource will each make
available to Athena or to a practice customer of Athena any Practice Information
of that practice in its possession or control within 5 days of request by Athena
or by the practice for access to that Practice Information. Vision and
Healthsource will each, within 5 days of request by Athena or by a practice
customer of Athena, provide for amendment of that practice's Practice
Information in its possession or control and incorporate any amendment into such
Practice Information in its possession or control to the extent legally
permissible. Vision and Healthsource will each, within 5 days of request by
Athena or by a practice customer of Athena make available to Athena or the
practice such information as in its possession or control that it reasonably
necessary or required for Athena or the practice to account for all disclosures
of Practice Information, to the extent required by law.
o) Vision and Healthsource will each make its internal practices, books and
records relating to the use and disclosure of Practice Information available to
the Secretary of the Department of Health and Human Services of the United
States to the extent required by 45 C.F.R. Section 164, as amended from time to
time.
p) Each Party acknowledges and agrees that due to the unique nature of the
Confidential Information, including, but not limited to, Practice Information,
money damages alone cannot adequately remedy any breach of obligations under
this Agreement to keep such information confidential and secure and that any
such breach of those obligations will result in irreparable harm to the Party to
which the obligation of security and confidentiality is owed. The Parties
therefore agree that upon any such breach or any threat thereof, the aggrieved
Party will be entitled to appropriate equitable relief in the form of injunction
or court order, in addition to whatever remedies for damages it might have at
law. The provisions of this Section 7p) will apply only to obligations of
confidentiality and security under Section 7 of this Agreement.
8) Representations, Warranties and Covenants of Athena. Athena represents and
warrants to Vision that:
a) Neither Athena nor its agents nor to its knowledge its customers with respect
to which Vision will provide Services: a) has been convicted of a federal health
care crime; b) has been excluded from participation in any federal health care
program; or c) is currently under investigation or involved in any legal
proceeding which may lead to such a conviction or exclusion. Athena will notify
Vision immediately if any of the foregoing occur whereupon Vision will have the
right to immediate terminate this Agreement immediately (in the event that
Athena or its agents are convicted, excluded) or to cease or suspend the
provision of services to the particular customer as otherwise provided for in
this Agreement (in the event that an Athena customer is convicted or excluded),
provided that right to such termination, cessation or suspension will be
exercised if at all within 60 days of such notice.
b) It will implement an effective compliance plan that is consistent with the
standards set forth in the U.S. Sentencing Guidelines and the Office of
Inspector General's Compliance Program Guide for third-party medical billing
companies within thirty (30) days after the Agreement takes effect and will
maintain such an effective compliance plan at all times throughout the course of
this Agreement. Upon request, a copy of its compliance plan will be provided to
Vision, on condition that it is treated as Confidential Information under
Section 7(c).
c) (i) It has all requisite corporate power and authority to execute, deliver
and perform its obligations under this Agreement, including authority from all
clients or customers for which services will be furnished under this Agreement,
(ii) the execution, delivery and performance of this Agreement has been duly
authorized by it, and (iii) no approval, authorization or consent of any
governmental or regulatory authority is required to be obtained by it or made in
order for it to enter into and perform its obligations under this Agreement.
d) On a continuing basis throughout the term of this Agreement, Athena shall not
knowingly or as a result of gross negligence permit any media, data (including
data necessary for the Services) or software provided by it to Vision to contain
any code, virus or other mechanism to disable, adversely affect, harm, or grant
unauthorized access or use to Athena systems, equipment or
data. Athena shall promptly notify Vision of any such code, virus or mechanism
upon its discovery by Athena.
9) Representations and Warranties and Covenants of Vision.. Vision represents
and warrants to Athena that:
a) Neither Vision nor its agents or subcontractors: a) has been convicted of a
federal health care crime; b) has been excluded from participation in any
federal health care programs; or c) is currently under investigation or involved
in any legal proceeding which may lead to such a conviction or exclusion. Vision
will notify Athena immediately if any of the foregoing occur whereupon Athena
will have the right to terminate this Agreement immediately in the event that
Vision or its agents or subcontractors are convicted or excluded provided that
right to such termination, will be exercised if at all within 60 days of such
notice.
b) It has a compliance plan that is effective and consistent with the standards
set forth in the U.S. Sentencing Guidelines and the Office of Inspector
General's Compliance Program Guide for third-party medical billing companies and
will maintain it as such at all times in the course of this Agreement. Upon
request, a copy of its compliance plan will be provided to Athena, on condition
that it is treated as Confidential Information under Section 7 (c).
c) On a continuing basis throughout the term of this Agreement, Vision shall not
knowingly or as a result of gross negligence permit any media, data or software
provided by it to Athena to contain any code, virus or other mechanism to
disable, adversely affect, harm, or grant unauthorized access or use to Athena
systems, equipment or data. Vision shall promptly notify Athena of any such
code, virus or mechanism upon its discovery by Vision.
d) On a continuing basis throughout the term of this Agreement that no software
provided by Vision to Athena infringes on any applicable, valid intellectual
property right under laws of the United States or any of its states or under the
laws of India or its states or political subdivisions, provided that Vision
makes no warranty with respect to the possibility of such infringement to the
extent that it results from use of such software only in combination or
conjunction with any data, software or equipment provided to Athena.
e) On a continuing basis throughout the term of this Agreement that no software
provided by Vision to Athena or used by it with respect to performance of the
Services violates any applicable law or regulation of the United States or any
of its states or under the laws of India or its states or political subdivisions
regarding export or import of software, technology or encrypted data, including,
but not limited to, encryption software, and that all necessary governmental
permits, licenses and approvals have been obtained and will be maintained to
permit performance of the Services as contemplated in this Agreement.
f) On a continuing basis throughout the term of this Agreement, that the
encryption software provided by it to Athena for use in connection with the
Services and used by Vision in connection with the Services complies
substantially with the encryption requirements set forth in HCFA Internet
Security Policy issued November 24, 1998, as it may be amended or updated from
time to time, and provides encryption protection equal to or exceeding 128 bit
encryption.
g) (i) It has all requisite corporate power and authority to execute, deliver
and perform its obligations under this Agreement, (ii) the execution, delivery
and performance of this Agreement has been duly authorized by it, and (iii) no
approval, authorization or consent of any governmental or regulatory authority
is required to be obtained by it or made in order for it to enter into and
perform its obligations under this Agreement.
10) Representations and Warranties of Healthsource. Healthsource represents and
warrants to Athena that:
a) Neither Healthsource nor its agents or subcontractors: a) has been convicted
of a federal health care crime; b) has been excluded from participation in any
federal health care programs; or c) is currently under investigation or involved
in any legal proceeding which may lead to such a conviction or exclusion.
Healthsource will notify Athena immediately if any of the foregoing occur,
whereupon Athena will have the right to terminate this Agreement immediately in
the event that Vision or its agents or subcontractors are convicted or excluded
provided that right to such termination, cessation or suspension will be
exercised if at all within 60 days of such notice.
b) It has a compliance plan that is effective and consistent with the standards
set forth in the U.S. Sentencing Guidelines and the Office of Inspector
General's Compliance Program Guide for third-party medical billing companies and
that it will maintain it as such at all times during the term of the Agreement.
Upon request, a copy of its compliance plan will be provided to Athena, on
condition that it is treated as Confidential Information under Section 7 (c).
c) On a continuing basis throughout the term of this Agreement, Healthsource
shall not knowingly or as a result of gross negligence permit any media, data or
software provided by Healthsource to Athena to contain any code, virus or other
mechanism to disable, adversely affect, harm, or grant unauthorized access or
use to Athena systems, equipment or data. Healthsource shall promptly notify
Athena of any such code, virus or mechanism upon its discovery by Healthsource.
d) On a continuing basis throughout the term of this Agreement that no software
provided by Healthsource to Athena infringes on any applicable, valid
intellectual property right under laws of the United States or any of its states
or under the laws of India or its states or political subdivisions, provided
that Healthsource makes no warranty with respect to the possibility of such
infringement to the extent that it results from use of such software only in
combination or conjunction with any data, software or equipment provided to
Athena.
e) On a continuing basis throughout the term of this Agreement, no software
provided by Healthsource to Athena or used by it with respect to performance of
the Services violates any applicable law or regulation of the United States or
any of its states or under of India or its states or political subdivisions
regarding export or import of software, technology or encrypted data, including
but not limited to encryption software, and that all necessary governmental
permits, licenses and approvals have been obtained and will be maintained to
permit performance of the Services as contemplated in this Agreement.
f) On a continuing basis throughout the term of the Agreement, the encryption
software provided by Healthsource to Athena for use in connection with the
Services and used by Healthsource in
connection with the Services complies substantially with the encryption
requirements set forth in HCFA Internet Security Policy issued November 24,
1998, as it may be amended or updated from time to time, and provides encryption
protection equal to or exceeding 128 bit encryption.
g) (i) It has all requisite corporate power and authority to execute, deliver
and perform its obligations under this Agreement, (ii) the execution, delivery
and performance of this Agreement has been duly authorized by it, and (iii) no
approval, authorization or consent of any governmental or regulatory authority
is required to be obtained by it or made in order for it to enter into and
perform its obligations under this Agreement.
11) Warranty Disclaimer.
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT: (a) NO PARTY MAKES NOR WILL BE
DEEMED TO MAKE OR HAVE MADE ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND OR
NATURE, DIRECTLY OR INDIRECTLY, WHETHER EXPRESS OR IMPLIED (EITHER IN FACT OR BY
OPERATION OF LAW) WITH RESPECT TO ANY SERVICE OR GOOD PROVIDED HEREUNDER; AND,
(b) EACH PARTY EXPRESSLY DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY, TITLE,
DESIGN, OPERATION OR FITNESS FOR A PARTICULAR PURPOSE AND ALL WARRANTIES ARISING
FROM CONDUCT, COURSE OF DEALING OR CUSTOM OR USAGE IN TRADE.
EXCEPT AS EXPLICITLY PROVIDED IN THIS AGREEMENT, THE SERVICES ARE PROVIDED TO
ATHENA "AS IS."
12) Limitations of Liability.
a) EXCEPT WITH RESPECT TO THE OBLIGATIONS, UNDERTAKINGS AND WARRANTIES SET FORTH
IN SECTIONS 5 THROUGH 10, ABOVE, IN NO EVENT WILL ANY PARTY BE LIABLE UNDER THIS
AGREEMENT TO ANOTHER PARTY, OR TO ANY THIRD PARTY, FOR CONSEQUENTIAL, EXEMPLARY,
INDIRECT, SPECIAL OR INCIDENTAL DAMAGES. IN NO EVENT WILL ANY PARTY BE LIABLE
UNDER THIS AGREEMENT TO ANOTHER PARTY, OR TO ANY THIRD PARTY, FOR LOST PROFITS,
BUSINESS OR BUSINESS OPPORTUNITIES OR REVENUE, EVEN IF THE PARTY OTHERWISE
LIABLE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
b) No Party will be responsible under this Agreement for any delay, error, lost
data, failure to perform, interruption, or disruption in the Services or
disclosure of data caused by or resulting from any natural fire; severe weather;
earthquake; flood or other natural disaster or act of God or any power failure;
failure of the world wide web, an Internet Service Provider utilized by either
of the parties, the internet or other non-proprietary means on communication /
connectivity utilized in connection with the Services, or hacking or electronic
vandalism, or other unavailability of the means of electronic communication
between the parties for the provision of information relating to or in
connection with the Services; legal act of a public authority, strike, lockout,
riot or act of war if such cause is beyond the reasonable control of the Party
otherwise chargeable and that Party has otherwise acted with reasonable care and
in conformity with this
Agreement with respect to such cause and, with respect to any disclosure,
corruption or unavailability of data, has adopted reasonable, diligent and
appropriate steps to maintain the security of its communications and facilities
and to maintain the security, availability and integrity of Practice Information
in its possession or control, or as to Vision and Healthsource only, a breach by
Athena of its warranty under Section 8 d) or, as to Athena only, a breach by
Vision of its warranty under Section 9 e). Notwithstanding the foregoing, such
cause will not include a Party's lack of funds, lack of credit, or other
financial inability to perform. If Vision or Healthsource intends to rely on any
of the foregoing conditions to forgive its performance or lack of performance
under this Agreement, it will timely so notify Athena in order to permit Athena
in its sole discretion to suspend or curtail its own performance under this
Agreement for such time as the condition continues and if such condition
continues for 7 business days or more, Athena may terminate the Agreement upon
notice to the other party provided that it provides such notice if at all within
10 days of notification of reliance by Vision or Healthsource and provided that
the termination will be effective on the date specified in the notice of
termination, which shall not be less than 180 days after provision of the
notice.
13) Indemnification.
a) Vision will defend, indemnify, and hold Athena and its directors, officers,
employees, agents, shareholders, partners and representatives harmless from and
against any claims, losses, actions, demands, liabilities or damages, including
reasonable attorneys' fees, (collectively "Losses") resulting from (i) the gross
negligence or willful misconduct of Vision or any subcontractor of Vision or
(ii) the breach by Vision or any subcontractor of Vision of any material
provision of this Agreement.
b) Athena will defend, indemnify, and hold Vision and Healthsource and their
directors, officers, employees, agents, shareholders, partners and
representatives, harmless from and against any Losses resulting from (i)
Athena's failure (to the extent not resulting from the acts or omissions of
Vision or any subcontractor of Vision) to provide services or products to Athena
customers, (ii) any alleged defect or deficiency in any services or products
provided by Athena to its customers (to the extent not resulting from the acts
or omissions of Vision or any subcontractor of Vision), (iii) any action duly
taken by Vision in conformity with this Agreement, without error or defect by
Vision and at the written request or instruction of Athena, or (iv) the breach
by Athena or any subcontractor of Athena of any material provision of this
Agreement.
c) A Party or person seeking indemnification under Sections 13 a) or 13 b) will
give written notice to the indemnifying Party promptly upon being informed of
any event that could reasonably expected to give rise to a claim or the
commencement (or threatened commencement) of any action, proceeding or
investigation that may constitute or result in a Loss. Such notice will describe
the event in reasonable detail and will, if possible, indicate the amount of
Loss that has been or may be suffered. In no event will an Indemnitee's failure
to give such a notice relieve the indemnifying Party of any liability, except to
the extent that such failure materially prejudices the indemnifying Party's
ability to adequately defend such claim. If the indemnifying Party confirms in
writing that it is obligated hereunder to indemnify the Indemnitee with respect
to any Loss, the Indemnifying Party may elect to compromise or defend such Loss,
at its own expense and with counsel reasonably satisfactory to the Indemnitee.
If the indemnifying Party elects to so compromise or defend such Loss, it will
within 10 days (or sooner, if the nature of the Loss so
requires) notify the Indemnitee of its intent to do so. Upon such notification,
the indemnifying Party will have the right to control the defense of such Loss,
and the Indemnitee will cooperate with the Indemnifying Party in the compromise
of, or defense against, such Loss. If the Indemnifying Party elects not to
compromise or defend such Asserted Liability, fails to notify the Indemnitee of
its election as herein provided or contests its obligation to indemnify under
this Agreement, the Indemnitee may pay, compromise or defend such Asserted
Liability, and the Indemnitee will have the right to control the compromise or
defense of such Loss; and in such case, the Indemnitee will retain the right to
pursue its right to indemnification hereunder against the indemnifying Party.
Notwithstanding the foregoing provisions of this Section 13 c), the indemnifying
Party may settle or compromise any Loss; provided, (i) such settlement or
compromise does not result in any liability to, restriction on or admission by
the Indemnitee; and (ii) such settlement or compromise constitutes or includes a
full release of the Indemnitee. In any event, the Indemnitee may participate, at
its own expense, in the defense of any Loss. If the indemnifying Party chooses
to defend any Loss, the Indemnitee will make available to the Indemnifying Party
any books, records or other documents within its control that are necessary or
appropriate for such defense.
14) Miscellaneous
a) Notices. All notices permitted or required to be given under this Agreement
will be in writing and delivered to the parties at their respective addresses
set forth below by (i) hand delivery, (ii) nationally recognized overnight
courier, (iii) first class mail, postage prepaid, OR (iv) facsimile transmission
followed by any one of the methods stated above, and will be deemed to be
effective the day of delivery by hand or overnight courier, the day of
transmission if sent by facsimile, or three days after mailing if sent by mail:
If to Athena: athenahealth, Inc.
Xxx Xxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: President
Tel: 000 000 0000
Fax: 000 000 0000
If to Vision: Vision Healthsource, Inc.
0000 Xxxxxx Xxxxxxxx Xxxxx
Xxxxxx, XX 00000
Attn: Xxxxxxxx Xxxx, President
Telephone: (000) 000-0000
Facsimile. (000) 000-0000
If to Healthsource: Vision Healthsource India Private Ltd.
c/o Vision Healthsource, Inc.
0000 Xxxxxx Xxxxxxxx Xxxxx
Xxxxxx, XX 00000
Attn: Xxxxxxxx Xxxx, President
Facsimile: (000) 000-0000
b) Counterparts. This Agreement may be executed in three (3) counterparts, each
of which will be treated as an original.
c) Relationship of Parties. The Parties expressly acknowledge that Vision and
Athena are independent contractors and nothing in this Agreement is intended nor
will be construed to create an employer/employee, joint venture, agency or
partnership relationship.
d) Waiver. The failure any Party to insist in any one or more instances upon the
strict performance of any of the terms or provisions of this Agreement by
another Party will not be construed as a waiver or relinquishment for the future
of any such term or provisions, but the same will continue in full force and
effect.
e) Assignments. This Agreement will be binding upon and inure to the benefit of
the subsidiaries, affiliates, successors and permitted assigns of the Parties to
this Agreement, provided that successors and assigns shall be governed by the
provisions of this Section 14 e) which follow. Except as stated in Section 1 b)
above, no Party may transfer, or otherwise assign this Agreement or any of its
rights or obligations hereunder without the other Party's prior written consent,
which consent will not be unreasonably withheld. Notwithstanding the foregoing,
a Party may assign this Agreement or its rights and obligations hereunder by
merger or otherwise in whole or in part, without the consent of the other
Parties, to any entity controlled by, controlling or under common control with
it or to any entity which acquires (by merger, consolidation, stock or
otherwise) all or substantially all of the assets of such party.
f) Entire Agreement, Amendment. This Agreement together with all exhibits hereto
constitutes the entire Agreement between the Parties hereto with respect to the
subject matter of this Agreement. This Agreement supersedes any and all
agreements, either oral or written, between the Parties to this Agreement with
respect to the subject matter of this Agreement. Except as otherwise expressly
provided herein, this Agreement will not be modified in any manner except by an
instrument in writing duly executed by an authorized representative of each
Party.
g) Governing Law, Forum. This Agreement will be governed by and construed in
accordance with the laws of the Commonwealth of Delaware, exclusive of its
conflict of law principles. The federal district court and the state courts in
the State of Delaware will be the exclusive venue for any court proceedings
between the Parties arising out of or in connection with this Agreement, and the
Parties hereby submit to the jurisdiction of those courts for that purpose.
h) Jurisdiction. The federal district court and the state courts in the State of
Delaware will be the exclusive venue for any court proceedings between it and
Athena arising out of or in connection with the Agreement. Healthsource hereby
submits to the jurisdiction of those courts for that purpose and irrevocably
appoints Vision as its agent to receive service of any process in connection
with any and all proceedings before those courts in connection with this
Agreement.
i) Third Party Beneficiaries. Clients and/or customers of Athena as to whom
Vision provides Services hereunder are not third party beneficiaries to this
Agreement.
IN WITNESS WHEREOF, the parties hereto have hereunto set their respective hands,
all as of the day and year first above written.
VISION HEALTHSOURCE, INC.
By: /s/ Xxxxxxxx Xxxx
---------------------------------
Xxxxxxxx Xxxx, President
ATHENAHEALTH, INC.
By: /s/ Xxxx Xxxxxx
---------------------------------
Xxxx Xxxxxx, President
VISION HEALTHSOURCE INDIA PRIVATE LTD.
By: /s/ Xxxxxxx Xxxx
---------------------------------
Xxxxxxx Xxxx, President
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
EXHIBIT A
PRICING AND SERVICES
This Pricing and Services Exhibit is attached to and made a part of the
Agreement (the "Agreement") among athenahealth, Inc. ("Athena"), Vision
Healthsource, Inc. ("Vision") and Vision Healthsource India Private Ltd.
("Healthsource") and is subject to the terms and conditions of the Agreement. In
the event of any conflict between the provisions of the Agreement and the
provisions of this Exhibit A, the provisions of Exhibit A shall govern; provided
that nothing in this Exhibit A shall alter the terms of Sections 12 a) or 12 b)
of the Agreement. Capitalized terms not otherwise defined herein will have the
meaning given them in the Agreement.
1) Pricing
a) General. In return for the provision of the Services described in this
Exhibit, Athena will pay Vision a monthly fee (pro-rated for any partial month)
of the greater of: 1) the actual number of charges posted by Vision in the month
multiplied by the unit price, reflecting the applicable Service Level as set
forth in the chart immediately below or 2) the Monthly Price Floor for the month
as defined in subsection (b) below.
Unit Price per charge Unit Price per charge posted
Number of Charges posted subject to Service subject to Service
posted per month Level 1 as defined below Level 2 as defined below
----------------- ------------------------- ----------------------------
0 - 125,000 Charges $* $*
125,001 - 250,000 Charges $* $*
250,001 - 500,000 Charges $* $*
500,001 - 1,000,000Charges $* $*
Greater than 1,000,000 Charges $* $*
b) Monthly Price Floor. Except as provided in subsection (c) below, the Monthly
Price Floor for a given month (Month A) will be the greater of the following
four amounts: (i) 75% of the actual charge volume for the immediately preceding
month (Month A Minus One) times the relevant Unit Prices in the chart above
applied to the service level specified for each customer for Month A Minus One
as set forth below; (ii) 50% of the actual charge volume for the month
immediately before the preceding month (Month A minus two) times the relevant
Unit Prices in the chart above applied to the service level specified for each
customer for Month A Minus 2 as set forth below; (iii) 25% of the actual charge
volume for the month immediately preceding the month before the preceding month
(Month A Minus Three) times the relevant Unit Prices in the chart above applied
to the service level specified for each customer for Month A Minus Three as set
forth below; or (iv) 75% of the Monthly Estimated Charge Volume (as defined
below) times the relevant Unit Prices in the chart above applied to the service
level specified for each customer for Month A as set forth below.
c) Monthly Price Floor After Notice of Termination,. If the Agreement is
terminated by Athena not for cause under Section 3(c) of the Agreement, then
notwithstanding the provisions of
subsection (b) above, the Monthly Price Floor in the month immediately following
notice of termination will be the same as the Monthly Price Floor in the month
preceding the termination notice and the Monthly Price Floor for each succeeding
month will be reduced by a cumulative additional increment of 25% of that
original figure until it is zero. By way of example and not by way of
limitation, if notice of termination is given at the end of March, the Monthly
Price Floor for April will the same as that in March, the Monthly Price Floor
for May will be 75% of the March figure, the Monthly Price Floor for June will
be 50% of the March figure, the Monthly Price Floor for July will be 25% of the
March figure and the Monthly Price Floor for August and thereafter will be zero.
Notwithstanding the foregoing, the Monthly Price Floor in any month in which
this Agreement terminates before the end of the month will be prorated to the
portion of the month that precedes the termination. If Athena terminates the
Agreement for cause or if Vision terminates the Agreement not for cause, then
the Monthly Price Floor will be zero for all Services provided after the date of
the termination notice.
d) Monthly Estimated Charge Volume,. On or before the seventh business day of
each calendar month, Athena will provide to Vision in writing a rolling three
(3) month volume forecast of the number of providers and charges it expects for
each of the three months included in the forecast. That volume forecast may be
changed and amended by Athena at any time provided that the portion of that
volume forecast for the next following month will be termed the "Monthly
Estimated Charge Volume" and will not be changed or amended following the end of
the seventh business day of the month preceding the month to which it applies.
Athena will also provide to Vision a written specification by customer, at least
two (2) months in advance, of the Service Level under which each customer's
charges will be processed in a given month.
2) Services.
a) Vision will provide payment posting services whereby records of charges,
consisting of line items for which payment is sought in claims, will be matched
against payment and denial data on explanations of benefit ("EOB") and other
documentation. Data will then be entered to complete agreed formats (that are
consistent with formats in use between the Parties prior to this Agreement and
any that are mutually established subsequently), to record EOB data against each
appropriate charge. Both the claims data and the EOB documentation will be
provided by Athena in electronic form using an agreed upon data transfer
protocol in agreed formats, consistent with formats in use between the Parties
prior to this Agreement. Vision will perform its work on a semi-on line model,
which model requires Vision to employ an offline application to accept both
claims data and the entered matched data. The completed data from the
application will then be provided to Athena using an agreed data transfer
protocol in a format specified by Athena (consistent with formats in use between
the Parties prior to this Agreement) suitable to be imported back into Athena's
billing system.
b) Vision will cooperate with Athena in establishing necessary protocols for
communicating necessary data to and from Vision via the Internet or any protocol
acceptable to both parties, enabling the matched information to be entered in
the database of Athena located at Athena's offices.
c) Vision will make available on a daily basis to Athena, in writing or
electronic format, the following reports consistent with the report formats in
use between the Parties prior to this Agreement:
i. Batches Receipt Confirmation Report;
ii. Data Entry Completion Report; and
iii. Problem Report.
d) Vision will provide training to the staff of Athena so that such staff is
knowledgeable in the methods needed to be put into place for the services of
Vision to be performed successfully and both parties will make personnel
available at a time mutually agreeable to both parties.
e) Vision will pay for all materials and supplies required in the performance of
its obligations under this Agreement. In addition, Vision will provide for the
development that Vision and Athena mutually deem necessary for the proper
tracking of the data being transferred to Vision's facility.
f) Vision will perform regular reviews of the work it performs and has performed
for Athena under this Agreement to confirm the accuracy of such work. In the
event that Vision discovers any compliance problem in the course of such
reviews, the matter will be subject to Paragraph 2 (i) immediately below and
Vision will take appropriate corrective measures it deems required in accordance
with Vision's compliance plan. Vision will promptly notify Athena of any such
compliance problem and of the measures taken.
g) Vision and Healthsource will cooperate fully with Athena in defending any
audit, lawsuit, or recoupment action by any patient or third-party payer by
providing documentation, information and testimony as reasonably required
consistent with advice from their legal counsel. Athena will compensate Vision
and Healthsource for the time and effort of Vision and of Healthsource in such
cooperation at reasonable rates, provided that such rates are not greater than
Vision's and Healthsource's regular charges for the time and expenses of
applicable personnel in the ordinary course of their businesses and provided
that Athena will not compensate Vision or Healthsource for their cooperation in
the foregoing audits, lawsuits or recoupment actions if such audits, lawsuits or
recoupment actions are materially caused by acts or omissions of Vision or
Healthsource.
h) Athena will cooperate fully with Vision and Healthsource in defending any
audit, lawsuit, or recoupment action by any patient or third-party payer by
providing documentation, information and testimony as reasonably required
consistent with advice from its legal counsel. Vision and Healthsource will
compensate Athena for the time and effort of Athena in such cooperation at
reasonable rates, provided that such rates are not greater than Athena's regular
charges for the time and expenses of applicable personnel in the ordinary course
of its business and provided that Vision and Healthsource will not compensate
Athena for its cooperation in the foregoing audits, lawsuits or recoupment
actions if such audits, lawsuits or recoupment actions are materially caused by
acts or omissions of Athena.
i) Vision will notify Athena promptly if it discovers credible evidence that
data or documentation furnished to it as to any Athena customer or client is
materially inaccurate or may otherwise result in overpayment to such customer or
client. In addition to any other right that Vision may have under this
Agreement, Vision may suspend the provision of services for any client or
customer of Athena upon its discovery of creditable evidence that the data or
documentation furnished to Vision for such customer or client may result in a
potential regulatory non-compliance, provided that Vision will promptly enter
discussion with Athena to confirm whether or not the actions will result in
regulatory non-compliance and to determine in good faith the measures that can
be taken, of any, to avoid such situation in the future; and, Vision will
promptly resume the provision of services with respect to the client or customer
if the actions precipitating the suspension of services will not result in
regulatory non-compliance or if in the exercise of good faith Vision reasonably
determines that such actions have been corrected and are unlikely to be repeated
in the future.
3) Athena Responsibilities. Athena is responsible for the delivery of legibly
scanned electronic files, electronically legible data and all other necessary
practice data to permit posting (in a format that is consistent with format in
use between the Parties prior to this Agreement and any that are mutually
established subsequently) at Athena's sole cost and expense. Vision's
obligations to perform the Services is conditioned upon provision by Athena of
data in reasonable form and substance to permit performance of the Services as
described in this Agreement; and, Athena is responsible for the substance of all
information it provides to Vision, except to the extent that such substance is
altered by Vision.
4) Service Standards. Vision will perform the services in accordance with the
standards set forth below. The invoice adjustments set forth below shall be
applied in the event that these standards are not met. All such adjustments will
be clearly labeled as such on the relevant invoice. Such invoice adjustment will
be the exclusive monetary remedy of Athena with respect to violation of such
standards, except if Vision fails to correct known, material posting errors
promptly or if Athena notifies Vision of Athena's waiver of an adjustment in
connection with a failure to meet such standards not later than ten (10)
business days after receipt of the relevant invoice containing the adjustment
and provided that such limitation of remedy will not apply in the event that a
breach or default is part of a persistent or recurring pattern of failure to
meet such standards and Athena has notified Vision of such persistent or
recurring pattern, listing the events that constitute the pattern.
a) Service Levels.
i) Posting Completion. Data for posting provided by Athena under this Agreement
will be processed by Vision (or by Healthsource to the extent that Vision
subcontracts with it to perform some or all of the Services) under one of two
Service Levels. Service Level I requires Vision to complete 95% of charge
postings within 12 hours of receipt and 99% of charge postings within 36 hours
of receipt. Service Level 2 requires Vision to complete 95% of charge postings
within 36 hours of receipt and 99% within 60 hours of receipt. All references to
"receipt" are to actual receipt by Vision of all required information in a
manner that conforms to the specifications of this Agreement. The drop-off time
will be 9:00 p.m. eastern standard time for Athena to have files ready for pick
up (electronically) by Vision and 9:00 am eastern standard time for Vision to
drop-off (electronically) the completed (i.e. posted) file to Athena.
ii) Daily Volume. Service Levels will be applied to the number of charges
received by Vision from Athena on a (U.S.) daily basis up to a maximum of the
Estimated Charge Volume for the relevant month (as specified in Athena's
designation of Service Level by customer associated with that Estimated Charge
Volume for that month) divided by the number of weekdays in that month exclusive
of United States Federal Holidays, plus 30% (20% for claims subject to Service
Level 1). Any charges in excess of this maximum will be counted first in the
charges to which the relevant Service Level will be applied in the daily maximum
of the next day.
iii) Invoice Adjustment. If Vision fails with respect to the charges received by
it for posting in a given (U.S.) day to meet the Service Level as applied to
those charges as specified in Athena's designation of Service Level by customer
associated with that Estimated Charge Volume for the relevant month, Vision will
credit to Athena for that month an amount equal to the number of charges
received that day (as defined in the "daily volume") times the relevant unit
charges times 0.25 and will provide an additional credit of the same amount for
each additional 24 hour period in which the relevant Service Level remains unmet
with respect to such charges.
b) Accuracy of Posting. Without limitation of Athena's remedy as otherwise
provided in this Agreement, Vision will promptly correct any material posting
errors or deficiencies in its posting process of which it is notified by Athena.
A material posting error shall be a posting error by Vision that causes a
materially inaccurate record to be produced or that results in a compliance
problem. Without limitation, missing, incomplete or incorrect claim or charge
information, claim ID number, date of service, code, amount billed, payment,
transfer, adjustment or kick-code as compared against the data originally
provided by Athena, will be considered a material error. Posting operations that
are not completed because of illegible, missing or incomplete information in the
data provided by Athena or that are otherwise attributable to a failure of
Athena to comply with this Agreement will not be considered material errors if
proper electronic notation is made by Vision of the issue in the data as posted
or otherwise promptly called to the attention of Athena in writing. In the event
a notification of a posting error is disputed in good faith by Vision, notice
will promptly be provided to Athena by email to the Communication Contact
identified in Section 1d) and the parties will promptly work, through their
respective Communication Contacts, to resolve the dispute in good faith,
provided that this process will not relieve Vision from the obligation in the
first sentence in this paragraph.
i) General Sampling. Athena may from time to time sample the accuracy of the
Services by reviewing a monthly sample of not less than 200 of the charges
posted for the month. The sample will not be focused by charge type, EOB data
type, region, poster or customer, but may in Athena's discretion be focused by
date and, without limitation, a sample chosen on the basis of 3 or more days in
the month, will be sufficient to be a general sample.
ii) Focused Sampling. In response to customer complaints or issues or where
Athena has a good faith reason to believe that posting accuracy is not meeting
standards in particular respects, Athena may also in its discretion review
focused samples on a monthly basis of charges by region, customer, charge type,
EOB data type, or poster or such other reasonable focused criteria as Athena may
employ.
iii) Errors. In the event that sampling by Athena discloses an error rate of
more than 5%, Athena will notify Vision in writing or by e-mail including
explanation of its findings sufficient for
verification by Vision, and Vision and Athena will discuss the results and the
manner in which Vision will correct any deficiencies. The Parties will also
discuss in good faith whether and how additional sampling should be performed to
verify sample results.
iv) Sampling to Establish Error Rate in Event of Disputed Deficiency. Within 30
days of the execution of this Agreement, the Vision and Athena will establish
mutually agreed protocols for monthly general and focused sampling that will be
reduced to writing, signed and attached to this Exhibit A. Until Vision and
Athena agree upon such protocols, sampling that selects a statistically valid,
random sample within the established category of sample items for the
established time period will be deemed to be the accepted protocols. If Vision
disputes a deficiency in error rate then it must so notify Athena within 10 days
of after it receives notice of the deficiency. In the event of such dispute,
Vision and Athena will each be entitled to present to the other within the next
10 days a single sample meeting the protocols, together with detailed
information to permit verification by the other of the manner in which the
sample was selected; and, the error rate for the applicable period will be the
average between the two error rates of such samples, provided that if only one
sample meeting the protocols is presented within those ten days, then the error
rate in that sample will control.
v) Invoice Adjustment. If the posting error rate in any general or focused
sample as determined pursuant to this Section 5(b) exceeds 5%, then in addition
to correction of the posting errors identified Vision will credit to Athena for
that month an amount equal to the percentage difference between the error rate
and 5%, times the applicable Error Factor (as defined below) times (in the case
of error disclosed in a general sample, including but not limited to a sample
showing an error rate in any three or more days in the month) the total Vision
charges assessed in that month or times (in the case of a focused sample) the
total Vision charges for posting of the type reviewed in the sample. The Error
Factor will be calculated as follows: if the error rate all general and focused
samples relating to a month are less than 7% then the Error Factor for the month
will be 2; if the error rate established by either general or focused sample is
equal to or greater than 7%, but no error rate established by any sample is
equal to or greater than 9% then the Error Factor for the month will be 5; if
any sample establishes an error rate equal to or greater than 9%, then the Error
Factor for the month will be 10.
5) Re-evaluation of Volume Levels. Quality Guidelines and Associated Price
Adjustments. No later than January 31, 2003 the Parties will initiate and
conduct discussions in good faith and with reasonable promptness to reassess the
accuracy and methodology of estimation of volume levels and error and lateness
rates as set forth in Sections 4(a) and (b) of this Exhibit A in light of the
experience of the Parties under this Agreement to that date. During those
discussions, the Parties will attempt in good faith to reach additional
agreement on amended levels for the Monthly Price Floor, invoice adjustments in
the event of failure to meet volume requirements, sampling for errors and
invoice adjustments based upon such sampling and also to agree upon any change
in or addition to the methodology of calculations set forth in this Exhibit A
that such amendment reasonably entails. Any such amendment that is mutually
acceptable to the Parties will be signed by the Parties and incorporated in this
Agreement as an amendment to this Exhibit A. In the event that a Party has
attempted on good faith to reach such amendment but has been unable to do so by
January 31, 2003, then within 60 days after that date it may notify the other
Party in writing of its intention to terminate this Agreement effective no more
180 days and not less than 90 days after the date of such notification. During
such period as set out in such
notification, the notifying Party will make itself reasonably available for good
faith discussion with the other Party to attempt to avoid termination by
reasonable agreement acceptable to both Parties and will at the reasonable
request of such other Party make one or more of its senior executives available
for direct discussion with one or more executives of similar senior level in
such other Party in an attempt to determine whether an acceptable agreement
avoiding termination may be reached. The notification of termination may be
cancelled or extended by written agreement of the Parties.
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
Amendment No. 1
To
Services Agreement
Vision Business Process Solutions, Inc. f/k/a Vision Healthsource, Inc.
("Vision"), Vision Healthsource India Private Ltd. ("Healthsource") and
athenahealth, Inc. ("Athena") enter into this Amendment No. I ("Amendment"),
effective October 13, 2004 ("Amendment Effective Date") to the Services
Agreement, dated December 9, 2002 (the "Agreement") between such parties, on the
following terms. Capitalized terms used in this Amendment shall have the same
meaning as in the Agreement.
As of the Amendment Effective Date, the parties hereto agree to make the
following changes to the Agreement:
1. The table in Section l (Pricing) of Exhibit A (Pricing and Services) is
replaced with the following table, THIS TIERED PRICING WILL HAVE EFFECT FROM
JANUARY 1 2003.
UNIT PRICE PER CHARGE POSTED UNIT PRICE PER CHARGE POSTED
NUMBER OF CHARGES SUBJECT TO SERVICE LEVEL 1 AS SUBJECT TO SERVICE LEVEL 2 AS
POSTED PER MONTH DEFINED BELOW DEFINED BELOW AVERAGE
----------------- ----------------------------- ----------------------------- -------
0 - 125,000 Charges $* $* $*
125,001 - 250,000 Charges $* $* $*
250,001 - 500,000 Charges $* $* $*
500,001-1,000,000 $* $* $*
Greater than 1,000,000 $* $* $*
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
2. A new Section e), Monthly Invoice Discount, is added to Section 1 (Pricing)
of Exhibit A (Pricing and Services) as follows:
2. "e) Monthly Invoice Discount. Vision will discount each monthly invoice in
accordance with the table below ON A FLAT BASIS, WITH EFFECT FROM SEPTEMBER 1
2003.
PAYMENT POSTING AR FOLLOW UP
------------------------------- -------------------------------
MONTHLY INVOICE DISCOUNT % MONTHLY INVOICE DISCOUNT %
------------------ ---------- ------------------ ----------
$* to $* *% $* to $* *%
$* to $* *% $* to $* *%
$* to $* *% $* to $* *%
$* to $* *% $* to $* *%
$* to $* *% $* to $* *%
$* to $* *% $* to $* *%
$* *% $* *%
Except as set forth herein, all other terms and conditions of the Agreement
remain in full force and effect.
Vision Business Process Solutions, Inc.
By: /s/ Xxxxxxx Xxxx
---------------------------------
[name]
------------------------------
President
Athenahealth, Inc.
By: /s/ L. Xxxxxxxxx Xxxxxx
---------------------------------
[name]
COO
Vision HealthSource India Private Ltd.
By: /s/ Xxxxxxx Xxxx
---------------------------------
[name]
------------------------------
President
SECOND AMENDMENT
TO
SERVICES AGREEMENT
THIS SECOND AMENDMENT TO SERVICES AGES ("Amendment"), dated as of March 8, 2005
(the "Amendment Effective Date"), is between Vision Business Process Solutions,
Inc., a Delaware corporation (f/k/a Vision Healthsource, Inc.) with a principal
place of business at 0000 Xxxxxx Xxxxxxxx Xxxxx, Xxxxx 0000, Xxxxxx, XX
("Vision"), Xxxxx Systems Business Process Solutions India Private Limited, a
private limited company organized under the laws of India (f/k/a Vision
Healthsource India Private Ltd.), with a principal place of business at DP110
(Second Phase) X-00, Xxxxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxx, 000 000, Xxxxx
("Healthsource"), and athenahealth, Inc., a Delaware corporation with a
principal place of business at Xxx Xxxxx Xx., Xxxxxxx, XX 00000 ("Athena").
Vision and Healthsource are collectively referred to in this Amendment as "Xxxxx
Systems".
WHEREAS, Xxxxx Systems and Athena are Parties to that Services Agreement dated
December 9, 2002 (the "Agreement"); and
WHEREAS, Xxxxx Systems and Athena desire to amend the Agreement to modify the
scope of the services provided by Vision and Healthsource to Athena under the
Agreement;
NOW, THEREFORE, in consideration of the mutual covenants and conditions set
forth in this Amendment, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Parties agree as
follows:
1. Capitalized terms used herein and not otherwise defined shall have the
respective meaning ascribed to them in the Agreement.
2. Section 1)a) of the Agreement is amended in its entirety to read as
follows:
a) Service to be Provided. Under the terms and subject to the conditions
and obligations of this Agreement, Xxxxx Systems will provide, and
Athena hereby accepts, the services described in Exhibit A and the
services described in any Task Order executed by the Parties from time
to time (the "Services")
3. Section 12)c) is added to the Agreement, the text of which is as follows:
c) With respect to all claims, actions and causes of action arising out
of, under or in connection with Task Order No. 1, Task Order No. 2
and/or any subsequent task order under this Agreement, regardless of
the form of action, whether in contract or tort (including negligence,
strict liability or otherwise) and whether or not such damages are
foreseen, Xxxxx Systems' collective liability will not exceed, in the
aggregate, two times the total amount actually paid to Xxxxx Systems
by Athena under the applicable Task Order during the 12-month period
immediately preceding the date that the claim, action, or cause of
action arose out of under or in connection with this Agreement_ The
foregoing limitation in this Section 12)c) will not apply to the
extent that claims, actions and causes of action arise out of,
under or in connection with the obligations in Section 7 of the
Agreement, as amended.
4. Clauses 13)a)(ii) and 13)b)(iv) will be of no effect, and the respective
Party will have no rights or obligations under either of those clauses,
with respect to claims, losses, actions, liabilities, demands or damages to
the extent that these arise out of obligations set forth in Task Order No.
1, Task Order No. 2 and/or any subsequent task order under this Agreement.
The foregoing limitation will not apply to the extent that claims, losses,
actions, liabilities, demands or damages arise out of, under or in
connection with the obligations in Section 7 of the Agreement, as amended.
5. Task Order Nos. 1 and 2, which are attached to this Amendment, are
incorporated into and made part of the Agreement as of the Amendment
Effective Date.
6. Section 7 of the Agreement is amended to add the following additional
subsections q) through t):
q) To the extent that in connection with this Agreement Xxxxx Systems
receives or has access to health information sourced from or provided
by the State or New York or any agency thereof, they agree to be in
compliance with the New York State AIDS/mV Related Confidentiality
Restrictions Notice hereinafter staled:
"This information has been disclosed to you from confidential records,
which are protected by state law. State law prohibits you from making
any further disclosure of this information with out the specific
written consent of the person to whom it pertains, or as otherwise
permitted by law. Any unauthorized further disclosure in violation of
state law may result in a fine or jail sentence or both. A general
authorization for the release of medical or other information is not
sufficient authorization for further disclosure."
Xxxxx Systems further agrees not to disclose Medicaid Confidential Data as
defined under statues or regulations of the State or New York without prior
written approval of the New York State Department of Health Office of
Medicaid Management.
r) To the extent that in connection with this Agreement Xxxxx Systems
receives or has access to eligibility data from Medicare or any
Medicaid Program, Xxxxx Systems will each restrict its access to such
Medicaid and Medicare eligibility data to the sole purpose of
verification of patient eligibility for Medicaid and Medicare benefits
respectively where the patient has requested such payment for medical
services.
s) Capitalized terms used in this Section 6s), but not otherwise defined,
shall have the same meaning as those terms in 45 CFR Section 160
through 164. For the purposes of this Agreement "HIPAA" shall mean the
Health Insurance Portability and Accountability Act of 1996, as
amended and as such may be further amended from time to time,
including all final rules and regulations promulgated thereunder. In
addition to and without diminishing its other obligations under this
2
Agreement with respect to privacy, security and confidentiality, Xxxxx
Systems will:
i. With respect to a facility owned or leased by or on behalf of
Xxxxx Systems where it creates, receives, maintains or transmits
Pill on behalf of Athena, Xxxxx Systems shall implement
administrative, physical and technical safeguards that reasonably
and appropriately protect the confidentiality, integrity and
availability of protected health information ("PHI");
ii. Establish and enforce appropriate clearance procedures and
supervision to assure that its workforce follows the requirements
of the Agreement consistent with the requirements of HIPAA;
iii. Act immediately and effectively to terminate access to PHI by any
of its staff upon that person's termination or reassignment;
iv. Provide appropriate training for its staff to assure that its
staff complies with its obligations consistent with the
requirements of HIPAA;
v. Implement appropriate disposal and reuse procedures with respect
to documents and equipment to protect PHI consistent with the
requirements of HIPAA;
vi. Implement appropriate authentication and access controls to
safeguard PHI consistent with the requirements of HIPAA;
vii. Use appropriate encryption when it transmits PHI electronically;
viii. Report promptly to Athena any security incident and any use or
disclosure of PHI not provided for in this Agreement;
ix. Not store PHI beyond periods necessary to perform work under the
Agreement and to conduct reasonable troubleshooting and quality
control checking in connection with performance of such work;
x. Maintain a formal program to comply with privacy and security
requirements, including written policies;
xi. Maintain a full time privacy officer on location in Xxxxx
Systems' facility located in Chennai, India;
xii. Provides for review by a fully dedicated quality assurance team
of systems and processes and regular audits of compliance,
including external audits;
xiii. Not perform or allow performance of any work under the Agreement
other than on Xxxxx Systems company premises and ensure that such
facilities are guarded on a 24 hour a day basis and access to
them is controlled by key cards and posted guards or similar
protection;
3
xiv. Restrict entry into work processing areas by proximity cards or
similar protection; and,
xv. Restrict employee access to the Internet, e-mail, and removable
media to deter removal of PHI from Xxxxx Systems' premises.
t) For purposes of this Agreement, the "athenaNet(R) System" means the
multi-user physician practice management and office workflow system
made available by Athena on an ASP basis, without charge, to Xxxxx
Systems for its use and access solely to provide the Services. The
athenaNet(R) System shall include, but not be limited to software
applications, associated databases and associated technology assembled
or created by and made available by Athena as part of athenaNet(R)
System to enable system access and functionality; screens, functions,
and formats for organizing or presenting data and data made available
by Athena as part of the athenaNet(R) System; and, manuals,
specifications, instructions and training provided by Athena in
connection with the athenaNet(R) System, whether written or otherwise.
x. Xxxxx Systems will not access or use the athenaNet(R) System or
any other electronic system of Athena other than in compliance
with the procedures and policies that Athena shall provide to
Xxxxx Systems from time to time.
ii. To the extent that any electronic system at Athena is licensed to
it by a third party, then Xxxxx Systems will not access or use
such system other than in compliance with such license, and
Athena will provide the terms and restrictions of such license to
Xxxxx Systems upon its request. Athena shall secure Xxxxx Systems
the right to access and use any such third party system or
software and Athena shall pay any fees associated with such
access.
iii. Xxxxx Systems will not knowingly, directly or indirectly, export
or transmit (i) any software, application, access to any Athena
systems or any related documentation or technical data or (ii)
any product (or any part thereof), process, or service that is
the direct product of any service under this interim agreement in
or to the People's Republic of China, Afghanistan, Iraq or any
group Q, S, W, Y or Z country specified in Supplement No. I of
Section 770 of the United States Export Administration
Regulations or to any other country to which such export or
transmission is restricted by such regulation or statute, without
the prior written consent, if required, of the Office of Export
Administration of the United States Department of Commerce, or
such other governmental entity as may have jurisdiction over such
export or transmission. In addition, and without limitation of
the foregoing, Xxxxx Systems will not knowingly, directly or
indirectly, export or transmit any of the foregoing to any
country other than as required to perform the Services.
4
iv. Xxxxx Systems will not access or use any Athena system,
application or functionality unless and to the extent requested
by Athena in writing for purposes of performing Xxxxx Systems'
obligations under the Agreement. No access to or use of Athena
systems, applications or functionality is transferable to a third
party by Xxxxx Systems, provided Xxxxx Systems may transfer
access or use of such systems, application or functionality to a
wholly-owned affiliate of Xxxxx Systems, solely to the extent
required to perform the Services.
v. In accessing or using the athenaNet(R) System, Xxxxx Systems will
not (i) make such access or use in connection with provision of
any services to any third party; (ii) make such access or use
other than through and by their own employees who are registered
with Athena individually as authorized users thereof; (iii) make
such access or use other than by electronically secure means and
methods approved in advance in writing by Athena and only by the
use of unique and confidential passwords applied to each
individual user; (iv) resell, lease, encumber, sublicense,
distribute, publish, transmit, provide such access or use to any
third party in any medium whatsoever; (v) make such access or use
on any public system or multiple computer or user arrangement or
network accessible by anyone except Athena and Xxxxx Systems;
(vi) derive specifications from, reverse engineer, reverse
compile, disassemble, or create derivative works based on Athena
systems, applications; (vii) copy data or screens except on an
occasional basis as necessary to accomplish its work or, (viii)
knowingly input or post through or to the athenaNet(R) System
Athena any content that is illegal, threatening, harmful, lewd,
offensive or defamatory or that infringes the intellectual
property rights, privacy rights or rights of publicity of others
or that contains any virus, worm, Trojan Horse or other mechanism
to damage or impair the operation of Athena systems, software or
hardware or the systems, software or hardware of others or to
grant unauthorized access to any data or system.
vi. Xxxxx Systems will not make or operate or permit operation of any
copy of any elements of Athena systems, applications or
functionality except as explicitly authorized by Athena in
writing. If and to the extent that Xxxxx Systems makes or
operates any copy of Athena systems, applications or
functionality, such copy will belong exclusively to Athena and
will be located only upon a server to which Athena is the sole
owner of the root password; and, Xxxxx Systems will not restrict
or permit restriction of electronic or physical access of Athena
to such server.
vii. In accessing or using Athena systems, Xxxxx Systems will not
order, review, access or use any data in excess of that
reasonably necessary for it to perform the work it its obligated
to do under the Agreement.
viii. Xxxxx Systems limit access to and use of the athenaNet(R) System
by its personnel to appropriate and secure levels. Xxxxx Systems
is responsible
5
for the actions of individuals to which Xxxxx Systems grants
access to the athenaNet(R) System. If Xxxxx Systems or any Xxxxx
Systems employee discloses a password to an unauthorized person,
Xxxxx System is validating the identity and authority of such
person to act on its behalf as to any access or use of the
athenaNet(R) System with that password and will be responsible
for such access and use. Xxxxx Systems will notify Athena
immediately if it becomes aware of any unauthorized use of any
athenaNet(R) System username or password, and will take
reasonable steps with Athena to shut off access by the individual
associated with such username and associated password.
7. Subject only to the modifications expressly set forth in this Amendment,
the Agreement is hereby ratified and affirmed by each Party, and shall
remain in full force and effect. This Amendment may be executed in any
number of counterparts, all of which, taken together shall constitute this
Amendment.
6
The Parties, through their duly authorized representatives, have executed this
Amendment effective as of the date first above written, whereupon it became
effective in accordance with its terms.
VISION BUSINESS PROCESS SOLUTIONS, XXXXX SYSTEMS BUSINESS PROCESS SOLUTIONS
INC. INDIA PRIVATE LTD.
By: /s/ Xxxxxxxx Xxxx By: /s/ Xxxxxxxx Xxxx
--------------------------------- ------------------------------------
Name: Xxxxxxxx Xxxx Name: Xxxxxxxx Xxxx
Title: President Title: President
Date: 4/13/05 Date: 4/13/05
ATHENAHEALTH, INC.
By: /s/ L. Xxxxxxxxx Xxxxxx
---------------------------------
Name: L. Xxxxxxxxx Xxxxxx
Title: COO
Date: 4/13/05
7
AMENDMENT NO. 3
TO
SERVICES AGREEMENT
This Amendment No. 3 (the "AMENDMENT") to the Services Agreement dated December
9, 2002, read in conjunction with the Amendment No. 1 dated October 13, 2004 and
Amendment No. 2 dated March 8, 2005, (together, the "AGREEMENT") is entered into
on this 12th day of APRIL 2006 (the "AMENDMENT EFFECTIVE DATE").
BY AND AMONGST
1. VISION BUSINESS PROCESS SOLUTIONS, INC., (formerly known as `Vision
Healthsource, Inc.'), a Delaware Corporation, having its principal place of
business at 0000, Xxxx Xxxxx Xxxxxxx, Xxxxx, Xxxxx 00000, hereinafter
referred to as "VISION", which expression shall, unless repugnant to the
context or meaning, mean and include its successors and permitted assigns;
and
2. XXXXX SYSTEMS BUSINESS PROCESS SOLUTIONS INDIA PRIVATE LIMITED (formerly
known as `Vision Healthsource India Private Ltd.'), a company incorporated
under the laws of India and having its principal place of business at A9,
1st Main Road, Arnbattur Industrial Area, Chennai - 600 058, hereinafter
referred to as "HEALTHSOURCE", which expression shall, unless repugnant to
the context or meaning, mean and include its successors and permitted
assigns; ON THE ONE HAND and
3. ATHENAHEALTH, INC., a Delaware Corporation, having its principal place of
business at Xxx Xxxxx Xx. Xxxxxxx, XX 00000, hereinafter referred to as
"ATHENA", which expression shall, unless repugnant to the context or
meaning, mean and include its successors and permitted assigns; ON THE
OTHER HAND
Vision and Healthsource are collectively referred to in this Amendment as "XXXXX
SYSTEMS".
WHEREAS Xxxxx Systems and Athena are parties to the Agreement; and
WHEREAS Xxxxx Systems and Athena desire to amend the Agreement in accordance
with the terms of this Amendment;
NOW, THEREFORE, in consideration of the mutual covenants and conditions set
forth in this Amendment, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Parties agree as
follows:
1. Capitalized terms used herein and not otherwise defined shall have the
respective meaning ascribed to them in the Agreement.
2. Clause (3) ATHENA RESPONSIBILITIES - OF EXHIBIT A TO THE AGREEMENT:
Clause (3) - Athena Responsibilities of Exhibit A to the Agreement shall be
amended in its entirety to read as follows:
"Athena is responsible for the delivery of legibly scanned electronic
files, electronically legible data and all other necessary practice data to
permit posting (in a format that is consistent with format in use between
the Parties prior to this Agreement and any that are mutually established
subsequently) at Athena's sole cost and expense. In addition to the above,
Athena may, from time to time, instruct in writing to Vision to either
delay the processing or to put on hold the processing of one or more charge
batches (the "A-Batches on Hold"). Further, if a batch provided by Athena
to Vision is illegible or incomplete or Athena fails to supply necessary
information concerning the batch and if Vision is therefore not able to
post the batch, then Vision may put on hold the processing of the batch
(the "V-Batches on Hold") provided that it so informs Athena by e-mail to
Communication Contact identified in section 1 (d) within 48 hours of first
receipt by Vision stating the reason for the hold and provided that Vision
will immediately remove the hold if and when Athena provides or corrects
the necessary information (The term necessary information, shall include
all the relevant information to be provided by Athena to Vision to process
the batches. The said A-Batches and V-Batches on hold shall be processed
according to the Service Levels herein referred to in Clause 4 (a) (i) of
this Amendment). A-Batches on Hold and V-Batches on Hold are together
hereinafter referred to in this Amendment as "Batches on Hold". Athena is
responsible for the substance of all information it provides to Vision,
except to the extent that such substance is altered by Vision".
3. CLAUSE 4 (A) (I) - POSTING COMPLETION:
Clause 4 (a) (i) - Posting Completion of Exhibit A to the Agreement shall
be amended in its entirety to read as follows:
"Data provided by Athena under this Agreement will be posted/processed by
Vision (or by Healthsource to the extent that Vision subcontracts with it
to perform some or all of the Services) under one of the two below
mentioned Services Levels, as instructed in writing by Athena at the time
of providing the data to Vision. Service Level 1 requires Vision to
complete 98% of the charge postings within 12 hours of receipt and 100% of
the charge postings within 36 hours of receipt. Service Level 2 requires
Vision to complete 95% of the charge postings within 36 hours of receipt
and 100% within 60 hours of receipt. All references to "receipt" are to
actual receipt by Vision of all required information in a manner that
conforms to the specifications of this Agreement. The drop-off time will be
10:00 p.m. eastern standard time for Athena to have files ready for pick up
(electronically) by Vision and 10:00 a.m. eastern standard time for Vision
to drop-off (electronically) the completed (i.e., posted) file to Athena.
Notwithstanding anything to the contrary contained herein and for the
avoidance of doubt, the charges that have been placed in the Batches on
Hold shall be excluded for the purposes of calculating Vision's Service
Levels under this Agreement. Provided further that charges in A-Batches on
Hold shall be posted/processed by Vision only after receipt of fresh
instructions from Athena along with instructions on Service Levels herein
referred above under which Vision shall be required to post/process the
data in the relevant A-Batches on Hold. Upon receipt of sufficient
corrected and legible information to permit posting/processing by Vision
with respect to any V-Batch on Hold, Vision will confirm such receipt to
Athena by e-mail to Communication Contact identified in section 1 (d)
within 12 hours, and Athena will thereafter instruct the Service Levels
herein referred above under which Vision shall be required to post/process
the data in such V-Batch on Hold.
Clause 4(b) Accuracy of Posting of Exhibit A is deleted in its entirety and
replaced with the following:
4 (B) ACCURACY OF POSTING
(i) Specifications. Within a period of 60 days from the execution date of this
Amendment, the parties shall document a mutually agreeable specification for
posting actions. Such specification may be amended by Athena from time to time
with the written consent of Vision, provided that such consent will not be
unreasonably withheld. During the 30 days following proposal of a specification
amendment by Athena, the parties will discuss in good faith additional pricing
to cover Vision's incremental costs for those specification changes that
increase the cost of Vision to provide posting services under this Agreement,
and Vision will not be required to consent to those specification changes in the
absence of written agreement on pricing to cover its incremental costs. If both
Athena and VBPS are unable to agree to the amount of incremental costs in
connection with a specification amendment, either party may request the matter
be resolve by an "Expert" under Section 4(b)(ix)(E) below.
(ii) Sampling Methods. In addition, within a period of 60 days from the
execution date of this Amendment, the parties shall document two mutually
agreeable and statistically valid methods of sampling for posting errors that
are consistent with industry practice - a method that is agreed to be
appropriate to determine accuracy of Vision's posting overall on a monthly basis
against the specifications agreed above for purposes of Monthly Overall Accuracy
Review (as set forth in Section 4(b)(v) below), and a method that is agreed to
determine accuracy of specific types or aspects of posting against the
specifications agreed above for purposes of Focused Accuracy Review (as set
forth in Section 4(b)(vi) below).
Athena may develop and provide documents from time to time explaining in detail
alternative or proposed sampling methodologies that Athena wishes to use in
connection with Section 4(b) (v), (vi) or (vii) below and that Athena believes
in good faith are
reasonably designed to determine whether errors or patterns of error exist, for
Vision's review.
(iii) Posting Errors Defined. For purposes of this Section 4(b), posting errors
are defined as variances from the applicable specification established as set
forth above. A material posting error shall be a posting error by Vision that
causes a materially inaccurate record to be produced, that is likely to cause or
require either Athena or its customers to undertake material additional work or
that results or that will likely result in a material compliance issue for
Athena or its customers. Without limitation, missing, incomplete or incorrect
claim or charge information, claim ID number, date of service, code, amount
billed, payment, transfer, adjustment or kick-code as compared against the data
originally provided by Athena, will be considered a material error. The
specifications reference in Section 4(b)(i) above will contain directions for
Vision action in the event that data that it receives from Athena is illegible,
missing or incomplete in such a way as to practically prevent normal posting or
is insufficient for normal posting and the usage of which may result in a
posting error or material posting error. Although it will not be considered a
material error for Vision to fail to complete normal posting requirements with
respect to such data, it will be a material error for Vision to fail to take
action in conformity with the specification relating to such data and to fulfill
normal posting requirements upon receipt of correct and accurate information
from Athena in respect of such incomplete, illegible, missing or insufficient
data, adequate for Vision to discharge its obligations of posting. Neither Party
to the Agreement will be in default or be penalized for a failure to perform
obligations that is caused by the failure of the other party to perform its own
obligations under the Agreement.
(iv) Individual Posting Errors. If Athena reasonably believes that the
correction of posting errors in individual posting entries can most efficiently
be accomplished by Vision and if Vision has at its disposal all requisite means
necessary so as to enable Vision to effectively make such correction, then,
Athena may from time to time inform Vision by e-mail to the Communication
Contact of material posting errors in specific individual posted items or files
as set forth in the e-mail, no later than 60 days from the date of posting of
the data in relation to which Athena has identified a material error and may
request Vision to revise or modify its process to address such material posting
error and to devise a mechanism to correct such material posting errors for all
future posting of the data.
(v) Monthly Overall Accuracy Review. The purpose of the Monthly Overall Accuracy
Review is to assess frequency of posting errors on a general, overall basis for
a given month. Athena may, not more than once for any month in which the
services are provided, provide Vision with results of a sampling for that month,
done according to the method set forth in Section 4(b)(ii) above for Monthly
Overall Accuracy Review within 60 days of the end of the subject month. The
sampling will not be focused by charge type, EOB data type, region, poster or
customer but may in Athena's discretion be focused on three or more days within
the month. Such results will be provided, if at all, within 60 days of the end
of the subject month, they will be communicated by e-mail to
the Communication Contact, and Athena will provide Vision with a copy of a
report detailing the data used, the method applied and the result obtained in
connection with the sampling.
(vi) Focused Accuracy Review. The purpose of the Focused Accuracy Review is to
assess the frequency of types of posting errors and errors with common types of
causes by assessing posting for patterns of error for a given month within a
period of 60 days from the completion of such month. Athena may from time to
time inform Vision by e-mail to the Communication Contact of patterns of
material posting errors identified by the sampling method set forth in Section
4(b) (ii) within 60 days of the end of the subject month. Athena will
simultaneously provide Vision with a copy of a report detailing the data used,
the method applied and the result obtained in connection with the pattern.
(vii) Customer Driven Accuracy Review. The purpose of the Customer Driven
Accuracy Review is to assess and take appropriate action with respect to
complaints of Athena's customers that relate to posting accuracy. If, within 60
days of the end of any month Athena informs Vision, by e-mail to the
Communication Contact, that Athena has received one or more customer complaints
that it believes in good faith can be resolved or addressed by identifying
posting errors in that month based on criteria related to the complaint(s), if
Athena provides documentation of such complaint(s) to Vision and if it states
that it wishes to initiate a Customer Driven Accuracy Review, then the parties
will confer in good faith to define mutually agreeable sampling methodology that
is reasonably calculated to test for such errors and that is consistent with the
principles employed in adopting the sampling methods under Section 4(b)(ii)
above.
Within 20 days of agreement on a methodology, Athena will conduct the review
using that methodology and notify Vision by e-mail to the Communication Contact
of the results, together with a copy of a report detailing the data used, the
method applied and the result obtained in connection with the review.
(viii) Action Steps.
(A) If Athena reasonably believes that the correction of posting errors in
individual, specific posting entries can most efficiently be accomplished
by Vision and if Vision has at its disposal all requisite means necessary
so as to enable Vision to effectively make such correction, then at request
of Athena made by e-mail to the Communications Contact, Vision will have a
reasonable period to revise and correct such posting entries. However, if
Athena requests or requires changes to Vision work process or systems in
order to address error patterns disclosed in Monthly Overall Accuracy
Reviews, Focused Accuracy Reviews, Customer Driven Accuracy Reviews or
otherwise identified to it by Athena, then such changes will be governed
under Section 4(b)(viii)(B) below.
(B) At the request of Athena made by e-mail to the Communication Contact,
Vision will within 5 business day after receipt of such request either (1)
implement
effective changes in its processes and systems to eliminate future
occurrence of a pattern identified in a Monthly Overall Accuracy Review,
Focused Accuracy Review or Customer Driven Accuracy Review or (2) if such
changes will increase the cost of Vision to provide posting services under
this Agreement, provide Athena a written explanation of such changes and
costs, and Vision will not be required to implement such changes in the
absence of written agreement on pricing to cover its incremental costs. If
there is an issue or disagreement that is the subject of timely discussion
and process under Section 4(b)(ix) below relating to such pattern or costs,
then Vision will not be required to implement such changes until the review
and recommendation of the Expert is complete or an agreed resolution has
been reached. In case of such issue or disagreement, Athena may still in
writing request Vision for institution of effective changes, and Vision may
accommodate the effective changes within 5 business days of such request.
In addition to the above, if the changes required under this paragraph are
substantial in nature, then Vision will complete the documentation update,
training and implementation of the same within five (5) days from the date
of request from Athena, provided the timelines are mutually agreed between
both the parties at the time of change request.
(C) Vision will not assess fees to Athena for corrections made by Vision of
specific posting errors in individual posting entries under Section 4(b)
(viii)(A), provided however, that for corrective actions under that Section
taken by Vision for any posting errors arising on account of (a) any
inaccurate, incomplete or insufficient specifications provided by Athena to
Vision in relation to the posting, and/or (b) any changes, modifications or
alterations to the agreed specifications by Athena, Vision may charge
Athena based on mutual agreement of the parties.
(D) If the posting error rate in any month disclosed by a Monthly Overall
Accuracy Review or a Focused Accuracy Review properly calculated under the
applicable method set forth in Section 4(b)(ii) above exceeds 2% of the
total postings made for the relevant month, then in addition to any
correction of posting errors required under Section 4(b)(viii)(A), Vision
will credit to Athena for that month an amount equal to the percentage
difference between the error rate and 2%, times the applicable Error Factor
(as defined below) and times (in the case of error disclosed in a Monthly
Overall Accuracy Review) the total Vision charges assessed in that month or
times (in the case of a Focused Accuracy Review) the total Vision charges
for posting of the type reviewed in the sample. The Error Factor will be
calculated as follows: if the error rate in the Monthly Overall Accuracy
Review and all Focused Accuracy Reviews relating to that month are less
than 7% then the Error Factor for the month will be 2; if the error rate
disclosed by either the Monthly Overall Accuracy Review or any Focused
Accuracy Review for that month is equal to or greater than 7%, but no error
rate so disclosed is equal to or greater than 9% then the Error Factor for
the month will be 5; if either the Monthly Overall Accuracy Review or any
Focused Accuracy Review for that month disclosed an error rate equal to or
greater than 9%, then the Error Factor for the month will be 10.
(ix) Issues and Disagreements
(A) If Vision believes in good faith that an error rate disclosed in any
review properly performed by Athena is not accurately representative
for the relevant time period, then it will so notify Athena within 15
days of after it receives notice of the error rate. In the event of
such disagreement, Vision and Athena will each be entitled to present
to the other within the next 10 days a single sample meeting the
relevant methodology, together with detailed information to permit
verification by the other of the manner in which the sample was
selected; and, the error rate for the applicable review will be the
average between the two error rates of such samples, provided that if
only one sample that meets the methodology adopted under Section
4(b)(ii) is presented within those ten days, then the error rate in
that sample will control. Failure of Vision to inform Athena that it
disputes an error rate as provided in this Section will be deemed
acceptance of the rate by Vision.
(B) If Vision in good faith believes that any sampling methodology
proposed by Athena is not reasonably designed to determine whether
errors or patterns of errors (as the case may be) exist, then Vision
shall so inform Athena by e-mail to the Communication Contact within
14 days from the date of receipt of any such methodology from Athena,
and the parties will promptly work, through their respective
Communication Contacts, for a period of at least 20 days to resolve
the dispute in good faith. Failure of Vision to inform Athena that it
disputes a proposed methodology as provided in this Section will be
deemed acceptance of the methodology by Vision, and Athena will be
permitted to the use the methodology under this Section 4. Provided
that in the case of an issue or disagreement that is the subject of
timely discussion or process relating to such pattern under this
Section 4(b)(ix), Vision will not be required to implement such
changes until the review and recommendation of the Expert is complete
or agreed resolution has been reached, whichever first occurs.
(C) If either party believes in good faith that the other has failed to
properly follow the appropriate sampling method under Section 4(b)(ii)
to determine errors, patterns of error, or error rates under this
Section 4, then it shall so inform the other party by e-mail to the
Communications Contact within 14 days from the date the other party
discloses to it the specifics of the relevant sample; and, the parties
will promptly work, through their respective Communication Contacts,
for a period of at least 20 days to resolve the dispute in good faith.
Failure of a party to inform the other that it disputes the
application of a method as provided in this Section will be deemed
acceptance of the application by that party.
(D) If in response to notice from Vision that elimination of a pattern of
error is not possible under Section 4(b) (viii) (B), Athena believes
in good faith that such elimination is possible, it will so inform
Vision within 72 hours after such notice; and, the parties will then
promptly work, through their respective Communication Contacts, for a
period of at least 20 days to resolve the dispute
in good faith. Failure of Athena to inform Vision as provided in this
Section will be deemed acceptance by Athena that such elimination is
not possible.
(E) Within 30 days after the date of this Amendment, the parties will
agree on a list of no fewer than three third party experts (the
"Experts") in rank order of preference as mutually agreed. In the
event that the parties cannot reach agreement on a methodology for
sampling under Section 4(b)(ii) or 4(b)(vii) or in the event that the
parties otherwise cannot resolve disputes over interpretation or
application of sampling methodologies under this Section 4, or in the
event that the parties are unable to agree to additional pricing to
cover incremental costs under this Section 4, either party may require
that the matter be submitted to one of the Experts for determination.
Such request must be made within 14 days after the dispute is first
raised or after the expiration of any time period set aside under this
Section 4 for attempted mutual resolution by the parties, whichever is
later. The parties will cooperate to submit the dispute to one of the
Experts, in order of the preference on the agreed list. The Expert
that accepts and is first available for the task will review the
sampling method(s) or reviews at issue and the parties written
comments. Within 21 days from the date that the issue is referred to
him, the Expert will: (a) with respect to issues over sampling
recommend the sampling method(s) or correction(s) that he believes
is/are commercially reasonable, consistent with standard industry
practice, adequate to determine compliance by Vision with the
Specifications and resolve the dispute; and, (b) with respect to
issues over cost recommended under Section 4(b) (i), the cost figures
that the Expert believes is/are commercially reasonable, consistent
with standard industry practice, and adequate to compensate for the
actual incremental costs to Vision on account of the proposed
specification amendment(s) at issue. The costs of the Expert for all
determination made by him pursuant to this Section will be borne
equally by the parties.
In connection with making such recommendation on issues of cost under
Section 4(b) (i), each party will be required to provide the Expert
with such documentation or other information in its possession that
the Expert reasonably requests and that are reasonably related to his
determination to facilitate the Expert in determining the cost,
provided that the expert will retain all such documents and
information provided by each party as confidential to the party
producing them and will not disclose the same in any manner whatsoever
(except as required by law) to any other person or entity, including
but not limited to the other party. In this regard each of the parties
shall execute acceptable non-disclosure agreements with the Expert.
Until the review and recommendation of the Expert is complete, neither
of the parties will be obligated to take any action or grant any
credit under Section 4(b) (viii) based on the sampling method(s) or
error rate(s) or costs at issue under the Section 4(b) (ix). If either
of the parties reasonably believes that the sampling method(s) or
correction(s) or costs recommended suggested by the Expert are
unreasonable or unfair, that party may refer any such dispute to
arbitration
proceedings as contemplated under the terms of the Agreement. However,
to ensure the service delivery is not impacted, the sampling method(s)
and correction(s) and costs recommended by the Expert shall be
implemented as an interim solution under this Section 4(b) and the
specified actions will be taken and credits made accordingly, until
the arbitration process is completed.
(x) Vision QA. Notwithstanding this Section 4(b), Vision will itself exercise
commercially reasonable efforts to monitor the quality of its work and to
identify individual errors and patterns of errors in its posting work. Vision
will take prompt, commercially reasonable action, in the form of correction of
individual items or in the form of changes or updates to its process, as the
case may require, to correct individual material errors and patterns of material
errors that it identifies and will coordinate such actions with Athena to
minimize duplicated effort and to avoid adverse effects of unexpected data
changes.
(xi) Athena Advice. In addition to the above, Athena will periodically review
Vision processes and will provide advice concerning process changes that Athena
believes will improve accuracy and/or efficiency of Vision work. Vision will
consider adopting such improvements in good faith and Athena will collaborate in
Vision's implementation of those changes to which Vision agrees and will, if
requested by Vision, approve or disapprove of the implementation. If Vision
makes a change in its process as advised by Athena and if Athena has approved
the implementation of the change, then material posting errors caused by the
change will not be counted in the posting error rate applied to Section
4(b)(viii)(D) above and Vision will be permitted to charge at its regular rates
under this Agreement for any actions to correct material posting errors or
patterns of material posting errors taken pursuant to Sections 4(b)(viii)(A) and
(B).
5. PRICING MODEL - TRANSACTION PRICING TO FTE PRICING:
Athena and Xxxxx Systems will engage in further incremental service agreements
pursuant to Task Orders to be executed under the terms of the Agreement and
substantially in the form of the template Task Order annexed to this Amendment
as Annexure 1.
Athena and Xxxxx Systems would use FTE Pricing model for the new services. For
the existing business, Athena and Xxxxx Systems may mutually decide and agree on
the timeline for movement into FTE based pricing.
Where FTE Pricing is appropriate, Athena and Xxxxx Systems will use the
following rates, subject to assumptions provided in Clause 5, given below:
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
SERVICE NORMAL TIME OVER TIME
------- ----------- ---------
Transaction Processing/Data Entry Services US $* US $*
Phone Based Services US $* US $*
6. PROFILE: -
Xxxxx Systems shall document the current recruitment profile for Athena and the
same shall he shared with Athena prior to execution of any Task Orders far any
services (the "Recruitment Profile annexed as Annexure II"). In case of Athena
and Xxxxx Systems agree upon a Task Order for provision of new services at a
future date, the Recruitment Profile herein annexed as Annexure II by Xxxxx
Systems shall be used as a benchmark for the same. If the profile required by
Athena for the new service is different from the Recruitment Profile annexed
herein, then the Parties shall mutually agree and set out a separate pricing for
such new service under the applicable Task Orders.
The Parties, through their duly authorized representatives, have executed this
Amendment effective as of the Amendment Effective Date, whereupon it became
effective in accordance with its terms.
VISION BUSINESS PROCESS SOLUTIONS, ATHENAHEALTH, INC.
INC.
By: /s/ Xxxxxxxx Xxxx By: /s/ Xxxxx X. Xxxxxxxx
--------------------------------- ------------------------------------
Name: XXXXXXXX XXXX Name: XXXXX X. XXXXXXXX
Title: MANAGING DIRECTOR Title: VICE PRESIDENT
Date: 4/12/06 Date: 4/12/06
XXXXX SYSTEMS BUSINESS PROCESS
SOLUTIONS INDIA PRIVATE LIMITED
By: /s/ Xxxxxxxx Xxxx
---------------------------------
Name: XXXXXXXX XXXX
Title: MANAGING DIRECTOR
Date: 4/12/06
ANNEXURE 1
TASK ORDER
This Task Order (the "Task Order") is entered into on this ______ day of
_____________ under the Master Services Agreement dated _________________,
executed amongst Athenahealth, Inc., ("Athena"), Vision Business Process
Solutions Inc., (VBPS) and Xxxxx Systems Business Process Solutions India
Private Limited (formerly "Vision Healthsource India Private Limited" and
hereinafter called "PSBPS").
1. TERM:
This Task Order shall be in effect for a period of thirty-six (36) months
(the "Initial Term") from June 16, 2005 (the "Effective Date"). Upon
expiration of the Initial Term, this Task Order will automatically be
renewed for consecutive additional terms of two (2) years each.
Notwithstanding the foregoing, either party may terminate this Task Order
with or without cause, effective at the end of the then current term
(including the Initial Term) by providing the other party written notice of
its intent to cancel at least six (60) days prior to the expiration of the
then current term.
2. SCOPE OF WORK:
Under the terms and conditions of this Task Order, VBPS shall provide the
services of "_______________", ____________________________________ ("VBPS
Services") and Athena shall pay for such VBPS Services.
3. PRICE:
VBPS will charge Athena for the VBPS Services under this Task Order at the
following rates:
__________________________________________________________________________
For the above processed, ___________________________ will be tracked by
_________________________ software called ____________________.
VBPS will invoice Athena on a monthly basis. Athena shall make complete
payment of the invoiced amounts to VBPS within thirty (30) days from the
date of the invoice. Athena shall pay to VBPS the complete invoiced amounts
without any deduction on account of non-payment by the clients of Athena.
Late
payments shall attract interest from the due date at the lesser of (i) one
and a half percent per month, to accrue on a daily basis with monthly rests
and to run from the due date until payment of such amount in full, or (ii)
the maximum rate permitted by law.
4. COST OF LIVING ADJUSTMENT.
The cost of living adjustment index would be based on the information made
available by Reserve Bank of India (RBI) for each year, in the website
below.
xxxx://xxx.xxx.xxx.xx/xxxxxxx/XxxxxxxxxxxxXxxx.xxxx?xxx0000#0
We would be referring to the Harmonized Index of Consumer Prices (HICP) for
Consumer Price Inflation (CPI) - Urban non Manual employees index shared by
RBI (Reserve Bank of India) in the above website link. This index is
proposed since it is released by RBI (Reserve Bank of India, Apex Bank
regulated by the Government of India) and also is the closest index
available for cost of living and urban population. For instance, the cost
index for the year 2004-2005 has been at 5%. With respect to the rates for
charges stated in this Task Order, commencing on the first anniversary of
the Effective Date and on each anniversary thereafter during the term of
the Task Order, such rates, applicable from time to time to the Task Order,
will be increased, with effect from each anniversary, by percentage as
released by RBI for the above referred index.
5. OTHER TERMS:
PSBPS and Athena will separately do a time study, mutually agree and
document the turnaround times, quality, auditing and other compliance
requirements and obligations.
AGREED:
VISION BUSINESS PROCESS SOLUTIONS, ATHENAHEALTH, INC.
INC.
By: By:
--------------------------------- ------------------------------------
Name: Name:
------------------------------- ----------------------------------
Title: Title:
------------------------------ ---------------------------------
Date: Date:
------------------------------- ----------------------------------
XXXXX SYSTEMS BUSINESS PROCESS
SOLUTIONS INDIA PRIVATE LIMITED
By:
---------------------------------
Name: XXXXXXXX XXXX
Title: MANAGING DIRECTOR
Date:
-------------------------------
ANNEXURE II
FINANCIAL TRANSACTION PROCESSING EXECUTIVE
CRITERIA: Graduation is a must to take part in the selection process
SELECTION PROCESS:
A. Typing / Keyboard speed of 25 Words Per Minute. (Average speed
including numbers and special characters)
B. Analytical Aptitude / Language Test: Candidates should score more than
60% to be eligible for selection. Those failing to score 60 % are
rejected.
C. Interview: Graduates with experience in Accounts or those who have
studied Accountancy either at Graduation or at Intermediate are
preferred.
D. Interview: Candidates are told about the nature of work and the career
prospects. Their willingness to take up shift work and being flexible
to accommodate work requirements is confirmed before making an offer.
E. Induction: All selected candidates undergo a through training and
their knowledge is tested and only those who qualify are allowed to
process claims.
ACCOUNTS RECEIVABLE EXECUTIVE
CRITERIA: Graduation is a must to take part in the selection process.
SELECTION PROCESS:
A. Group Discussion: Applicants language skills are assessed. Candidates
who do not make grammatical errors are identified. Then they are
tested for their Accent. They are tested for their rate and clarity of
speech.
B. Analytical Aptitude / Language Test: Those clearing the Group
Discussion are administered with this test. Candidates should score
more than 60 % to be eligible for selection. Those failing to score 60
% are rejected.
C. Listening skills/grammar/comprehension/diction: Those short-listed
from above processes are identified to go through a rigorous
assessment of Language, voice and accent. Successful candidates are
then considered for next stages.
D. Interview: Graduates with excellent clarity of speech, with people
interaction skills are selected for this profile.
E. Interview: Candidates are told about the nature of work, and the
career prospects. Their willingness to take up shift work and being
flexible to accommodate work requirements is confirmed before making
an offer.
F. Induction: The selected ones are provided with intensive training on
US Healthcare and are tested for their knowledge before they are
permitted to make calls,
AGREED:
VISION BUSINESS PROCESS SOLUTIONS, ATHENAHEALTH, INC.
INC.
By: /s/ Xxxxxxxx Xxxx By: /s/ Xxxxx X. Xxxxxxxx
--------------------------------- ------------------------------------
Name: XXXXXXXX XXXX Name: XXXXX X. XXXXXXXX
Title: MANAGING DIRECTOR Title: VICE PRESIDENT
Date: 4/12/06 Date: 4/12/06
XXXXX SYSTEMS BUSINESS PROCESS
SOLUTIONS INDIA PRIVATE LIMITED
By: /s/ Xxxxxxxx Xxxx
---------------------------------
Name: XXXXXXXX XXXX
Title: MANAGING DIRECTOR
Date: 4/12/06
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
Task Order No. 1
Accounts Payable Services
Vision Business Process Solutions, Inc., a Delaware corporation (f/k/a a Vision
Healthsource, Inc.) with a principal place of business at 0000 Xxxxxx Xxxxxxxx
Xxxxx, Xxxxx 0000, Xxxxxx, XX ("Vision"), Xxxxx Systems Business Process
Solutions India Private Limited, a private limited company organized under the
laws of India (f/k/a Vision Healthsource India Private Ltd.), with a principal
place of business at DP110 (Second Phase) X-00, Xxxxxxxxxx Xxxxxx, Xxxxxxxx,
Xxxxxxx, 000 000, Xxxxx (Healthsource"), and athenahealth, Inc., a Delaware
corporation with a principal place of business at Xxx Xxxxx Xx., Xxxxxxx, XX
00000 ("Athena") hereby enter into this Task Order No. 1 under that certain
Services Agreement dated December 9, 2002 between the Parties (the "Agreement"),
as amended, including but not limited to as amended by the Second Amendment to
Services Agreement dated March 8, 2005 (the "Second Amendment"; the Agreement as
so amended is referred to as the "Amended Agreement"), on the following terms.
Vision and Healthsource are collectively referred to as "Xxxxx Systems". Except
as otherwise defined herein, all capitalized terms used herein shall have the
same meaning as in the Agreement or the Second Amendment, as the case may be.
1. Term. This Task Order will, commence on March 8, 2005 (the "Task Order
Effective Date") and will continue until December 9, 2007 unless earlier
terminated by termination of the Amended Agreement or otherwise in
accordance with the Amended Agreement. Subject to agreement on rates and
services, this Task Order may be extended upon mutual written agreement of
the parties, provided that the parties have agreed to extend the term of
the Amended Agreement as set forth in Section 3)a) of the Amended
Agreement.
2. Services. Xxxxx Systems will provide the number of full-time-equivalent
resources (each an "FTE") described in and subject to Section 4.C. of
Exhibit A attached hereto on a time and materials basis to provide the
services described in Section 1 of Exhibit A ("Accounts Payable Services").
The Accounts Payable Services will be in accordance with and governed by
the business rules document ("Business Rules"), which will be agreed to by
the parties prior to initiating the Accounts Payable Services and updated
by mutual agreement of the parties from time to time during the term of
this Task Order.
3. Athena Obligations. In addition to its obligations under the Amended
Agreement, Athena will perform its obligations specified in Section 2 of
Exhibit A.
4. Charges.
(a) Monthly Fee Per FTE. In addition to all amounts payable under the
Amended Agreement, Athena will pay Xxxxx Systems a monthly fee of
US$* for each full-time-equivalent resource (each, an "FTE'")
that provides services under this Task Order. The monthly fee will be
appropriately prorated for (i) less than a FTE provided and (ii) for
any FTE that begins or ends services on other than the first or last
of the month.
(b) Taxes. Athena shall pay all excise, use and sales taxes levied in
connection with this Task Order in accordance with Section 2)a) of the
Amended Agreement.
(c) Adjustment to Monthly Fee. Xxxxx Systems' charges set forth above,
will be increased annually on the anniversary of the Task Order
Effective Date to reflect the increase, if any, in the Employment Cost
Index, Total Compensation, Not Seasonally Adjusted, Private Industry
for Professional Specialty and Technical Occupations published by the
Bureau of Labor Statistics of the United States Department of Labor
(the "ECI"), over the preceding anniversary of the Task Order
Effective Date.
5. Termination. Athena may terminate this Task Order at any time without
penalty by providing Xxxxx Systems with ninety (90) days prior written
notice.
None
AGREED:
VISION BUSINESS PROCESS SOLUTIONS, XXXXX SYSTEMS BUSINESS PROCESS SOLUTIONS
INC. INDIA PRIVATE LTD.
By: /s/ Xxxxxxxx Xxxx By: /s/ Xxxxxxxx Xxxx
--------------------------------- ------------------------------------
Name: Xxxxxxxx Xxxx Name: Xxxxxxxx Xxxx
Title: President Title: President
Date: 4/13/05 Date: 4/13/05
ATHENAHEALTH, INC.
By: /s/ Xxxx Xxxxx
---------------------------------
Name: Xxxx Xxxxx
Title: CFO
Date: 4/13/05
2
Exhibit A
Accounts Payable Services
1. Description of Services: Upon the receipt of invoices from its vendors and
expense reports from Athena employees, Athena will prepare the invoices and
expense reports and scan them into Athena's server located in Waltham, MA.
Xxxxx Systems will access the invoices and expense reports via Xxxxx
Systems' Citrix application and perform the following the activities:
A. Invoice Entry: Xxxxx Systems will enter the appropriate data into
Athena's Microsoft Great Plains application ("Great Plains") in
accordance with the Business Rules.
B. Invoice Approval and general Ledger Posting: Every invoice entered
into Great Plains requires approvals from Athena's respective
department heads that is responsible for approval of the invoice.
Xxxxx Systems will send out emails requesting approval of the invoice
to such department heads. Upon receipt of the approval, Xxxxx Systems
will post the approved invoice into Athena's General Ledger
application.
C. Vendor Set Up: If a vendor is not located in Great Plains, Xxxxx
Systems will send emails to the Athena respective department heads
responsible for the invoice requesting approval to set up the vendor
in Great Plains and approval for the invoice. Upon receipt of the
approvals, Xxxxx Systems will set up the vendor and post the invoice
to the General Ledger.
D. Expense Report Entry: In addition to the invoices, Xxxxx Systems will
enter all expense reports into Great Plains that are manually created
by the employees of Athena and received by Xxxxx Systems in accordance
with the Business Rules.
E. Expense Report Audit: In addition, Xxxxx Systems will audit all
employee expense reports received by Athena in accordance with
Athena's expense report policies.
F. Additional Services. Upon the reasonable request of Athena and
agreement by Xxxxx Systems, the FTEs assigned to perform the Accounts
Payable Services will perform additional services related to the
Accounts Payable Services, provided that any such additional services
that continue on an ongoing basis may require an adjustment to the
number of FTEs provided under this Task Order in accordance with
Section 4.C. below.
2. Athena's Obligations: Athena will provide or perform the following in order
for Xxxxx Systems to perform its obligations under this Task Order.
A. Athena will work with Xxxxx Systems to develop the Business Rules and
update the Business Rules from time to time as appropriate.
B. Athena will scan invoices and expense accounts in a timely manner.
3
C. Athena will cause its appropriate personnel responsible for approving
invoices and expense reports to respond to mail approvals in a timely
manner.
D. Athena will provide Xxxxx Systems will provide Xxxxx Systems with
access to any and all of its proprietary and third party software
applications, including Great Plains, as required by Xxxxx Systems to
provide the Accounts Payable Services. Athena will pay any fees
associated with such access.
E. Athena will provide Xxxxx Systems with copies of its expense report
policy, including prompt notice of any updates to such policy.
3 Service Level Agreement: After the ninety day (90) period following the
Task Order Effective Date (the "Stabilization Period"), Xxxxx Systems will
measure its performance of the Accounts Payable Services in accordance with
the service levels set forth below, which are further described in and
subject to the Business Rules.
A. Turn Around Time: Xxxxx Systems will use commercially reasonable
efforts to perform the Accounts Payable Services with a turn around
time of 2 business days for both invoice entry and expense report
entry and audit, commencing with the business day the Xxxxx Systems
receives the invoices in image form via Citrix. Xxxxx Systems will
enter the invoices into Great Plains and send an email to the approver
of the invoice for approval within 2 business days. For the purposes
of this Task Order, business days are Monday through Friday, excluding
holidays observed by Athena.
B. Accuracy: Xxxxx Systems will enter invoices and expense reports into
Great Plains in accordance with following accuracy targets:
(i) 98% Financial Accuracy. Xxxxx Systems will use commercially
reasonable efforts to perform the Accounts Payable Services with
a 98% financial accuracy rate or better. Any invoice entered by
Xxxxx Systems that contains one or more data entry errors in the
"invoice amount" data field of the invoice amount is considered
as one (1) financial error for the purposes of calculating this
service level. If Xxxxx Systems fails to meet this service level
in any calendar month, Xxxxx Systems will provide Athena with a
credit in accordance with subsection (iii) below.
(ii) 95% Clerical Accuracy. Xxxxx Systems will use commercially
reasonable efforts to perform the Accounts Payable Services with
at 95% clerical accuracy rate or better. Any invoice entered by
Xxxxx Systems that contains one or more data entry errors in any
data fields of an invoice (other than the invoice amount field)
is considered as one (1) clerical error for the purposes of
calculating this service level.
(iii) Failure to Meet Financial Accuracy Service Level. If Xxxxx
Systems fails to meet the 98% financial accuracy service level in
any calendar month, Xxxxx Systems will provide a credit to Athena
on Xxxxx Systems next monthly invoice. The credit will be
calculated by applying the percentage
4
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
set forth in the table below that corresponds to the actual
calculation of financial accuracy and multiplying that percentage
by the total amount of Xxxxx Systems' fees for the calendar month
in which the failure to comply occurred.
Actual Financial Accuracy Penalty Percentage
------------------------- ------------------
98% to 100% No penalty
95% to 97.99% 1
Less than 95% 2%
4. Volume Projections / Number of FTEs Provided:
A. Invoice Entry: Projected volumes are * invoices and expense reports
received by Xxxxx Systems in calendar a month.
B. Vendor Set up: 15% of the invoices received and processed require that
Xxxxx Systems perform vendor set ups in Great Plains.
C. Number of FTEs Provided. Based upon the volume projections described
above, Xxxxx Systems will initially provide one and one half (1.5)
FTEs to provide the Accounts Payable Services under this Task Order.
The parties agree to meet and negotiate in good faith an appropriate
adjustment to the number of FTEs provided by Xxxxx Systems to perform
the Accounts Payable Services (i) at the end of the Stabilization
Period, (ii) at any time during the terns of this Task Order that the
actual number of invoices and expense reports or vendor set ups exceed
the above projections by 20% or more for three (3) consecutive months,
or (iii) due to the need for additional FTEs as the result of
additional services provided by Xxxxx Systems in accordance with
Section 1.F.
5
Task Order No. 2
Credit Balance Services
Vision Business Process Solutions, Inc., a Delaware corporation (f/k/a Vision
Healthsource, Inc.) with a principal place of business at 0000 Xxxxxx Xxxxxxxx
Xxxxx, Xxxxx 0000, Xxxxxx, XX ("Vision"), Xxxxx Systems Business Process
Solutions India Private Limited, an India corporation (f/k/a Vision Healthsource
India Private Ltd.), with a principal place of business at DP 110 (Second Phase)
X-00, Xxxxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxx, 000 000, Xxxxx ("Healthsource"), and
athenahealth, Inc., a Delaware corporation with a principal place of business at
Xxx Xxxxx Xx., Xxxxxxx, XX 00000 ("Athena") hereby enter into this Task Order
No. 2 under that certain Services Agreement dated December 9, 2002 between the
Parties (the "Agreement"), as amended, including but not limited to as amended
by the Second Amendment to Services Agreement dated March 8, 2005 (the "Second
Amendment"; the Agreement as so amended is referred to as the "Amended
Agreement"), on the following terms, on the following terms. Vision and
Healthsource are collectively referred to as "Xxxxx Systems". Except as
otherwise defined herein, all capitalized terms used herein shall have the same
meaning as in the Agreement or the Second Amendment, as the case may be.
1. Term. This Task Order will commence on March 7, 2005 (the "Task Order
Effective Date") and will continue until December 31, 2005 unless earlier
terminated in accordance with the Amended Agreement or in accordance with
Section 2(a) below.
2. Xxxxx Systems Obligations. Xxxxx Systems will utilize Athena's athenaNet(R)
System to provide the credit balancing services described in Exhibit A
attached hereto ("Credit Balances Services") to assist Athena in resolving
credit balances on lists of credit balance medical claims provided to Xxxxx
Systems by Athena in accordance with Section 3 ("Claims") Xxxxx Systems
will document the Credit Balance Services performed for each Claim either
by entries in Athena's system or on separate problem logs that will be
uploaded to Athena separately. As part of the Credit Balancing Services,
Claims may be resolved either with or without follow up and the work
required may differ with respect to each type of Claim.
(a) Initial Claims. On or about the Task Order Effective Date, Athena will
provide Xxxxx Systems with a work List containing 1000 Claims
("Initial Claims"). Xxxxx Systems will perform the Credit Balance
Services for the Initial Claims. Upon completion of such services,
Athena may terminate this Task Order without penalty by providing
Xxxxx Systems with written notice.
(b) Credit Balance Services. Provided that Athena does not terminate the
Task Order in accordance with Section 2(a), the Credit Balance
Services performed on an ongoing basis (after the Initial Claims) will
be performed by Xxxxx Systems in a professional and diligent manner
and in a manner at least as accurate and diligent as the work
performed with respect to the Initial Claims.
3. Athena's Obligations. Athena will provide or perform the following in order
for Xxxxx Systems to perform the Credit Balance Services:
6
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
(a) On or about the Task Order Effective Date, Athena will provide Xxxxx
Systems with a work list containing the Initial Claims.
(b) Provided that Athena does not terminate this Task Order in accordance
Section 2(a), upon completion of the Credit Balance Services for the
Initial Claims, on or about the second day of each month during the
remainder of the term of this Task Order, Athena will provide Xxxxx
Systems with a work list that contains credit balance Claims.
4. Charges.
(a) In addition to all amounts payable under the Agreement, Athena will
pay Xxxxx Systems the following amounts in accordance with Section
2)b) of the Amended Agreement:
(i) Each month during the term of this Task Order, Xxxxx Systems will
charge and Athena will pay a fee of US$* for each Claim fully
processed according to this work order by Xxxxx Systems during
the prior month. Invoices will be due and payable in accordance
with Section 2.c) of the Agreement.
(b) Xxxxx Systems' charges set forth above, will be increased annually on
the anniversary of the Task Order Effective Date to reflect the
increase, if any, in the Employment Cost index, Total Compensation,
Not Seasonally Adjusted, Private Industry for Professional Specialty
and Technical Occupations published by the Bureau of Labor Statistics
of the United States Department of Labor (the "ECI"), over the
preceding anniversary of the Task Order Effective Date.
7
AGREED:
VISION BUSINESS PROCESS SOLUTIONS, XXXXX SYSTEMS BUSINESS PROCESS SOLUTIONS
INC. INDIA PRIVATE LTD.
By: /s/ Xxxxxxxx Xxxx By: /s/ Xxxxxxxx Xxxx
--------------------------------- ------------------------------------
Name: Xxxxxxxx Xxxx Name: Xxxxxxxx Xxxx
Title: President Title: President
Date: 4/13/05 Date: 4/13/05
ATHENAHEALTH, INC.
By: /s/ L. Xxxxxxxxx Xxxxxx
---------------------------------
Name: L. Xxxxxxxxx Xxxxxx
Title: COO
Date: 4/12/05
8
Exhibit A
Credit Balance Services
Credit Balance Services has two components - Processing and Follow Up, as
described below:
1) Processing:
a) Xxxxx Systems will review each Claim to determine the process by which
and the reason why the Claim obtained a credit, and will assign each
claims assigned to one of the following classifications, accurately
reflecting such process and reason:
(i) Duplicate payment by same insurance company;
(ii) Duplicate posting by the payment poster;
(iii) Wrong posting or posting error;
(iv) Multiple insurance companies paying as primary;
(v) Multiple insurance companies paying as secondary;
(vi) Interest payment;
(vii) Lack of coordination of benefits (COB);
(viii) Primary or secondary over paid as per their fee schedule; and
(ix) Other reasons.
b) Xxxxx Systems will perform the Claim review by opening Athena's
document management system and looking at the explanation of benefits
(FOB) and determining how and who made the over payment.
c) Once the reason for overpayment is identified, Xxxxx Systems will
accurately record the classification and take the appropriate action,
which may consist of, but not be limited to, one or more of the
following, as consistent with standards and instructions provided to
Xxxxx Systems by Athena from time to time:
(i) Send the Claim to Athena with instructions ("Instructions"),
which consist of advising which insurance company Athena should
contact, the amount to reference and what information should be
asked of the insurance company in order to resolve the credit
balance.
(ii) Enter a problem log entry for Athena to reverse the postings;
(iii) Enter a problem log entry for Athena to correct the postings;
and (iv) Enter a post kick code and claim note in the software.
9
d) Xxxxx Systems will document the Instructions, problem logs, kick code,
and claim notes in Athena's system.
2) Follow Up:
a) Xxxxx Systems will view each Claim in Athena's system as well as the
associated EOB and will read all the Instructions and problem logs.
b) Xxxxx Systems will confirm the overpayment to the appropriate
insurance company by telephone which includes the amount, check# etc
and also the refund address if that company does not have a take back
facility.
c) Once 2.(b) is completed, Xxxxx Systems will document the Claim notes
and the kick codes in a spreadsheet and return to the Athena.
d) On appropriate Claims, Xxxxx Systems will call multiple insurance
companies to confirm with such insurance companies (in case 2
insurance companies are paying as primary/secondary) as to which
company was supposed to make the payment.
e) If both insurance companies say they are the primary/secondary then
the Claim will designated by Xxxxx to be forwarded to the provider and
instructions documented in Athena's system to the provider to get the
information from the patient. This is done through the Claim note sent
via a spreadsheet.
f) Exceptions are if the insurance company is not able to identify the
over payment and requires time to audit and call back Some of these
situations are appropriately documented in Claim notes and some in the
problem logs, as instructed by Athena.
g) The kick code and claim note is entered by Xxxxx Systems into a
spreadsheet or a problem log that is uploaded to Athena.
10
TASK ORDER NO. 3
CLINICAL DATA PROCESSING SERVICES
Vision Business Process Solutions, Inc., a Delaware corporation with a principal
place of business at 0000 Xxxx Xxxxx Xxxxxxx, Xxxxx, Xxxxx 00000 ("Vision"),
Xxxxx Systems Business Process Solutions India Private Limited, a Company
incorporated under the laws of India, with a principal place of business at A9,
1st Main Road, Xxxxxxxx Xxxxxxxxxx Xxxx, Xxxxxxx, 000 000, Xxxxx
("Healthsource"), and Athenahealth, Inc., a Delaware corporation with a
principal place of business at 000 Xxxxxxx Xxxxxx, Xxxxxxxxx, XX 00000
("Athena") hereby enter into this Task Order No. 3 under that certain Services
Agreement dated December 9, 2002 between the Parties (the "Agreement"), as
amended, including Amendment No. 1 dated October 13, 2004, Amendment No. 2 dated
March 8, 2005, and Amendment No. 3 dated April 12, 2006 (together, the
"Agreement") on the following terms. Vision and Healthsource are collectively
referred to as "Xxxxx Systems." Except as otherwise defined herein, all
capitalized terms used herein shall have the same meaning as in the Agreement or
its amendments, as the case may be.
1. Term. This Task Order will commence on June 13, 2006 (the "Task Order
Effective Date") and will continue, unless earlier terminated in accordance with
the Agreement, for an initial pilot period through July 31, 2006 (the "Pilot
Period"), after which Athena may in its discretion extend the term of this Task
Order through December 31, 2006 by giving written notice thereof. Subject to
agreement on rates and services, this Task Order may be extended by mutual
written agreement of the parties, provided that the parties have agreed to
extend the term of the Agreement as set forth in Section 3(a) of the Agreement.
2. Services. Xxxxx Systems will utilize Athena's athenaNet(R) System to provide
the clinical data processing services described in Exhibit A attached hereto
("Clinical Services") to assist Athena in sorting, classifying, routing, and
entering data from documents received by Athena as part of its clinical service
workflow. The Clinical Services will be performed in accordance with and
governed by the business rules document ("Business Rules"), which will be
mutually agreed to by the parties prior to initiating the Clinical Services and
updated by mutual agreement of the parties from time to time during the term of
this Task Order.
3. Athena Obligations. In addition to its obligations under the Agreement,
Athena will perform its obligations specified in Section 2 of Exhibit A.
4. Charges.
Xxxxx Systems will charge Athena for Xxxxx Systems services under this Task
Order at the following rates:
Page 1
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
i) Effective from June 13 2006, Xxxxx Systems shall charge Athena for
Clinical Services for Xxxxx Systems employees without a Clinical
Background, as hereinafter defined, at the rate of US $* per hour
per Xxxxx Systems resources on a full time equivalent (FTE) basis
(each such Xxxxx Systems herein after referred to as FTE).
ii) Effective from June 13 2006, Xxxxx Systems shall charge Athena for
Clinical Services for Xxxxx Systems employees with a Clinical
background at the rate of US $* per hour per (FTE).
iii) For this purpose the term "Clinical Background" means possessing the
clinical practice background and qualifications as mutually agreed to
by the parties. It is agreed that during the Pilot Period the
individuals allocated to provide Clinical Services will be 50% those
without a Clinical Background and 50% those with a Clinical
Background. After the Pilot Period, the parties shall mutually
determine the appropriate breakdown for such individuals based on the
nature of the Clinical Services work.
iv) Xxxxx Systems will invoice Athena on a monthly basis. Athena shall
make complete payment of the invoiced amounts to Xxxxx Systems within
thirty (30) days from the date of the invoice. Athena shall pay to
Vision the complete invoiced amounts without any deduction on account
of non-payment by the clients of Athena. Late payments shall attract
interest from the due date at the lesser of (i) one and a half percent
per month, to accrue on a daily basis with monthly rests and to run
from the due date until payment of such amount in full, or (ii) the
maximum rate permitted by law.
(iv) Xxxxx Systems shall maintain detailed time records documenting the
hours worked by each FTE on the Clinical Services, which shall be made
available on monthly basis to Athena for review at Athena's request.
(b) Cost of Living Adjustment.
The cost of living adjustment index shall be based on the information made
available by Reserve Bank of India (RBI) for each year, in the website
below.
xxxx://xxx.xxx.xxx.xx/xxxxxxx/XxxxxxxxxxxxXxxx.xxxx?xxx0000#0
The parties will refer to the Harmonized Index of Consumer Prices (HICP)
for Consumer Price Inflation (CPI) - Urban non Manual employees index
shared by RBI (Reserve Bank of India) in the above website link. This index
is proposed since it is released by RBI (Reserve Bank of India, Apex Bank
regulated by the Government of India) and also is the closest index
available for cost of living and urban population. For instance, the cost
index for the year 2004-2005 has been at 5%. With respect to the rates for
charges stated in this Task Order, commencing on the first anniversary of
the Effective Date and on each anniversary thereafter
Page 2
during the term of the Task Order, such rates, applicable from time to time
to the Task Order, will be increased, with effect from each anniversary, by
the percentage as released by RBI for the above referred index.
(c) Taxes. Athena shall pay all excise, use and sales taxes levied in
connection with this Task Order in accordance with Section 2)a) of the
Agreement.
5. Indemnification. The provisions of this Section 5 shall apply beginning on
the first date that Xxxxx Systems starts providing Clinical Services under this
Task Order following the Pilot Period. Xxxxx Systems shall defend, indemnify and
hold harmless Athena and its directors, officers, employees and agents, from and
against any third party claims, losses, actions, demands, liabilities or
damages, including reasonable attorneys' fees (collectively "Losses") resulting
in bodily injury or death of a person arising as a proximate result of incorrect
data entered in data fields in AthenaNet by Xxxxx Systems under this Task Order.
Notwithstanding anything to the contrary contained herein in this Task Order or
under the Agreement, Xxxxx Systems aggregate liability for the indemnification
obligations described in this Section 5 shall in no event exceed the total
amount of fees paid or payable by Athena to Xxxxx Systems under this Task Order
during the 12 month period immediately preceding the date of any such claim
(excluding amounts paid as reimbursement of expenses or taxes). The procedures
set forth in Section 13) c) of the Agreement shall apply to any indemnification
sought under the foregoing provision.
6. Insurance. The provisions of this Section 6 shall apply beginning on the
first date that this Task Order is in effect following the Pilot Period. Xxxxx
Systems agrees to maintain in full force throughout the term of this Task Order,
and any subsequent task order or agreement covering the provision of Clinical
services, a policy of commercial general liability under which Xxxxx Systems is
the named insured and Athena is named as an additional insured. Each such policy
shall provide thirty (30) days' prior notice of cancellation to Athena, and
certificate thereof shall be delivered to Athena. The minimum limits of
liability of such insurance shall be $10 million per occurrence and $20 million
annual aggregate. The insurance required to be maintained by Xxxxx Systems
pursuant to this Task Order shall be maintained with companies which have a
rating of at least "A-" and are within a financial size category of not less
than "Class VIII" in the most current Best's Key rating Guide.
[SIGNATURES APPEAR ON THE FOLLOWING PAGE]
Page 3
AGREED:
VISION BUSINESS PROCESS SOLUTIONS, XXXXX SYSTEMS BUSINESS PROCESS
INC. SOLUTIONS INDIA PRIVATE LIMITED
By: /s/ Xxxxxxxx Xxxx By: /s/ Xxxxxxxx Xxxx
--------------------------------- ------------------------------------
Name: XXXXXXXX XXXX Name: XXXXXXXX XXXX
Title: MANAGING DIRECTOR Title: MANAGING DIRECTOR
Date: JUNE 15, 2006 Date: JUNE 15, 2006
ATHENAHEALTH, INC.
By: /s/ Xxxxx Xxxx
---------------------------------
Name: Xxxxx Xxxx
Title: VP Product Management
Date: June 15, 2006
Page 4
EXHIBIT A
CLINICAL SERVICES
1. Description of Services. Athena will prepare the relevant documents
containing clinical data (the "Documents") and import them into Athena's
servers. Xxxxx Systems will access the Documents through athenaNet(R) and
conduct the following activities with respect to the Documents in accordance
with the Business Rules:
a. Classification. Xxxxx Systems will identify the Document type and
classify each Document in athenaNet in accordance with the Business Rules.
Xxxxx Systems will also, if applicable and in accordance with the Business
Rules, identify the patient, to whom a Document applies by reviewing the
unique identifiers in each relevant Document.
b. Data Entry. Xxxxx Systems will enter appropriate data into the relevant
fields in athenaNet in accordance with the Business Rules.
c. Quality Assurance. Xxxxx Systems will perform quality assurance steps on
each Document by comparing the information that Xxxxx Systems enters in
AthenaNet to the data contained within each Document, in accordance with
quality assurance measures as mutually agreed between Athena and Xxxxx
Systems. In addition, Athena and Xxxxx Systems shall work together during
the term of this Task Order to develop formal, written Clinical Services
quality assurance specifications (the "QA Specifications") which shall
apply upon approval by Athena and Xxxxx Systems. Prior to approval of the
QA Specifications, quality assurance shall be performed by both Xxxxx
Systems and Athena. Upon such approval of the QA Specifications, Xxxxx
Systems shall assume full responsibility for quality assurance with respect
to the Clinical Services.
2. Athena's Obligations. Athena will provide or perform the following in order
for Xxxxx Systems to perform its obligations under this Task Order:
a. Athena will work with Xxxxx Systems to develop the Business Rules and
to update the Business Rules from time to time as appropriate, and
will provide Xxxxx Systems with such updated Business Rules when they
are available.
b. Athena will import the Documents into athenaNet in a timely manner.
c. Athena will work with Xxxxx Systems to provide regular training
updates as new functionality is introduced into the system, and will
provide related documentation to Xxxxx Systems as it becomes
available.
d. Athena will provide Xxxxx Systems with such level of athenaNet access
as is necessary to provide the services under the Task Order.
Page 5
Xxxxx Systems shall not be liable for any delay or failure in performing its
obligations, incase if such delay or failure is attributable to any delay or
failure of Athena to perform its obligation's as set out herein or under the
Agreement in a timely manner.
3. Service Level Agreement. Following the Pilot Period, Xxxxx Systems will
measure its performance of the Clinical Services in accordance with the service
levels set forth below, which may be further described in, and are subject to,
the Business Rules.
a. Turn Around Time. Xxxxx Systems will use commercially reasonable efforts
to complete processing of each Document received in a day within four (4) hours,
from the hour and minute that image of a Document is imported into AthenaNet.
Provided however that abovementioned Turn around time shall not be applicable in
cases where i) the Document is illegible or incomplete or ii) Xxxxx Systems
inability to access AthenaNet for reasons not attributable to Xxxxx Systems. For
purposes of this Task Order, "business days" are Monday through Saturday of each
week, 5:30 a.m. through 9:30 p.m. Eastern Standard Time (subject to adjustment
to account for time change during daylight savings time), including United
States national and holidays and including all holidays observed by Athena.
b. Accuracy.
x. Xxxxx Systems will perform the Clinical Services at an accuracy
rate of at least 99%. For purposes of this task order, the accuracy rate
shall be equal to 100% less the percentage of data fields in which data is
entered incorrectly or not entered in relation to the total number of data
fields in which data was or should have been entered.
ii. Failure to Meet Accuracy Level. For any given month, Athena shall
notify Xxxxx Systems in writing of Xxxxx Systems ' failure to meet the 99%
accuracy rate agreed to in this Exhibit A, Section 3.b(i) for such month,
no later than a period of 30 days from the end of the subject month. The
parties shall mutually work together in good faith to resolve the issues.
If both the parties agree that the error rate for the subject month is
between 95% to 98.99% while processing the Clinical Service, then Xxxxx
Systems agrees to provide a credit of 1% of total amounts invoiced to
Athena for the subject month and if the error rate is less than 95%, then
Xxxxx Systems agrees to provide a credit of 2% of total amounts invoiced to
Athena for the subject month, which shall be deducted from the forthcoming
month's invoice. Notwithstanding anything to the contrary contained herein,
Athena shall not be entitled to such credit of 1% of the invoiced amount if
delays or failure of Xxxxx System in meeting the accuracy percentage is on
account of illegible, missing or incomplete data received from Athena or
for any other fault attributable to Athena.
iii. The parties shall work together on an ongoing basis to identify
and resolve quality issues in a mutually agreeable manner, using the best
tools and methods currently available to the respective parties.
Page 6
4. Volume and Staffing. Xxxxx Systems and Athena shall confer on a regular basis
to (i) analyze the volume and nature of the Clinical Services, and (ii) validate
or revise the appropriate staffing levels and composition in accordance with
such analysis.
Page 7
Amendment to Athena Task Order 3
THIS Amendment (the "Amendment") is made on this January 11, 2007 to the Task
Order No. 3 (the "Task Order") effective June 13, 2006
by and between
Vision Business Process Solutions, Inc., (formerly known as "Vision
Healthsource, Inc.+), a Delaware Corporation, having its principal place of
business at 0000, Xxxx Xxxxx Xxxxxxx, Xxxxx, Xxxxx 00000, hereinafter referred
to as "Vision', which expression shall, unless repugnant to the context or
meaning, mean and include its successors and permitted assigns;
Xxxxx Systems Business Process Solutions India Private Limited having its office
at, X0, 0xx Xxxx Xxxx, Xxxxxxxxxx Xxxxxx, Ambattur, Chennai -600058 (hereinafter
referred to as "PSBPS'), which expression shall, unless repugnant to the context
or meaning thereof, include its successors and permitted assigns) on one hand.
And
Athenahealth, Inc., a Delaware Corporation, having its principal place of
business at 000 Xxxxxxx Xxxxxx, Xxxxxxxxx, XX 00000, hereinafter referred to as
"Athena', which expression shall, unless repugnant to the context or meaning,
mean and include its successors and permitted assigns; ON THE OTHER HAND
Vision and Healthsource are collectively referred to in this Amendment as "Xxxxx
Systems'.
WHEREAS Xxxxx Systems and Athena are parties to the Agreement; and
WHEREAS Xxxxx Systems and Athena desire to amend the Task Order in accordance
with the terms of this Amendment;
NOW THE PARTIES AGREE AS FOLLOWS:
1. This Amendment shall be effective commencing on from January 1, 2007
("Effective Date').
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
2. The Parties acknowledge and agree that from the Effective Date
notwithstanding anything to the contrary in the Task Order, the
following clauses of the Task Order shall be amended to read as
follows:
i) Clause(1) Term -- Clinical Data Processing Services Task Order
Clause (1) -- The term of the Task Order shall be amended in its
entirety to read as follows:
The initial term of this Task Order shall be from June 13, 2006 until
December 31, 2006 (the "Initial Term'). Upon expiration of the Initial
Term this Task Order will renew for an additional term of six (6)
months, following which the Task Order shall renew automatically for
consecutive six (6) month terms unless otherwise terminated as
provided herein or in the Agreement. Notwithstanding the foregoing,
either party may terminate this Task Order with or without cause,
effective at the end of the then current term (including the Initial
Term) by providing the other party written notice of its intent to
cancel at least sixty (60) days prior to the expiration of the then
current term.
ii) Clause (4) -- Charges
Clause (4) -- Charges of the Clinical Data Processing Services shall
include the following:
Beginning from June 13, 2006 for the entire term of this Task Order,
the ramp-up pricing for Xxxxx Systems new Individual resources on a
full time equivalent (FTE) basis (each such Xxxxx Systems individual
resources are herein referred to as "FTE') on Clinical Services for
Xxxxx Systems new resources without Clinical Background and with
Clinical Background shall be charged at fifty percent (50%) for the
first twenty (20) business days and seventy-five percent (75%) for the
next twenty (20) business days (the "Ramp-up Period') following the
date that such individual resource began work on the Clinical Services
pursuant to this Task Order. During this period Xxxxx Systems shall
charge for the new FTEs without Clinical Background at the rate of
US$* and with Clinical Background at the rate of US$*.
After the completion of the ramp-up period Xxxxx Systems shall charge
Athena for Clinical Services for Xxxxx Systems resources without
Clinical Background at the rate of US$* and with Clinical Background
at the rate of US$* per hour per FTE.
iii) Clause (5) -- Indemnification
Clause (5) -- Indemnification of the Clinical Data Processing Services
to the Task Order shall be amended in its entirety to read as follows:
The provisions of this Section 5 shall apply beginning on the first
date that Xxxxx Systems starts providing Clinical Services under this
Task Order
following the Pilot Period. Xxxxx Systems shall defend, indemnify and
hold harmless Athena and its directors, officers, employees and
agents, from and against any third party claims, losses, actions,
demands, liabilities or damages, including reasonable attorneys' fees
(collectively "Losses") resulting in bodily injury or death of a
person arising as a proximate result of incorrect data entered in data
fields in AthenaNet by Xxxxx Systems under this Task Order.
Notwithstanding anything to the contrary contained herein in this Task
Order or under the Agreement, Xxxxx Systems aggregate liability for
the indemnification obligations described in this Section 5 shall in
no event exceed the total amount of fees paid or payable by Athena to
Xxxxx Systems under this Task Order during the 30 month period
immediately preceding the date of any such claim (excluding amounts
paid as reimbursement of expenses or taxes). The procedures set forth
in Section 13) c) of the Agreement shall apply to any indemnification
sought under the foregoing provision.
3. All terms and conditions agreed earlier in the Master Services Agreement,
Amendments and Task Orders remain and continue to apply unchanged unless
the same have been amended in this Amendment.
IN WITNESS WHEREOF, each of the Parties have caused this Amendment to be duly
executed by their duly authorized representatives.
For Xxxxx Systems Business Process For Athenahealth, Inc.
Solutions India Private Limited
By: /s/ Xxxxxxxx Xxxx By: /s/ Xxxxx X. XxxXxxxxx
--------------------------------- ------------------------------------
Name: Xxxxxxxx Xxxx Name: XXXXX X. XXXXXXXXX
Title: Managing Director Title: CHIEF OPERATING OFFICER
For Vision Business Process Solutions,
Inc
By: /s/ Xxxxxxxx Xxxx
---------------------------------
Name: Xxxxxxxx Xxxx
Title: Managing Director
TASK ORDER 4 TO ATHENA SERVICE AGREEMENT
This Task Order (the "Task Order") is entered into on this August 23, 2006 under
the Master Services Agreement dated December 9, 2002, executed amongst
Athenahealth, Inc., ("Athena"), Vision Business Process Solutions Inc., (VBPS)
and Xxxxx Systems Business Process Solutions India Private Limited hereinafter
called "PSBPS").
1. Term:
This Task Order shall be in effect for a period of thirty-six (36) months
(the "Initial Term") from November 30th, 2005 (the "Effective Date")
subject to the Master Service Agreement dated December 9, 2002 being in
force. Upon expiration of the Initial Term, this Task Order will
automatically be renewed for consecutive additional terms of two (2) years
each. Notwithstanding the foregoing, either party may terminate this Task
Order with or without cause, effective at the end of the then current term
(including the Initial Term) by providing the other party written notice of
its intent to cancel at least sixty (60) days prior to the expiration of
the then current term.
2. Scope of Work:
Under the terms and conditions of this Task Order, VBPS shall provide the
following services:
i) POSTING ANALYSIS - This service entails running the work list from
AthenaNet based on the instruction from Athena, this work list, along
with the details of allotment would be placed in the local server, to
be accessed by the Posting Analysts. The Posting Analysts would work
the batches in AthenaNet as per the priority value (MSC Day and High
dollar value batches first). The Posting Analyst's work is to
accurately resolve the transactions belonging to the batch that did
not get posted to AthenaNet for different reasons. The different
reasons are as follows, No Matching Charge, Partially Posted,
Tentatively Discarded, Match Record Failed to Post and Unmapped Kick
code. The service also involves discarding records and to post
transactions manually based on request. Xxxxx should also be required
to communicate any uncompleted batches, absences, or other items that
may cause us to forfeit an MSC with clients. The TAT is to complete
all the batches of priority clients within three (3) business days and
Non-Priority clients within four (4) business days of batch opening.
ii) PAYMENT BATCH CONSTRUCTOR - Users review images in a parent batch,
identify and execute any divisions necessary to prepare batches
appropriate for data entry and for the ERA team. Batches are split and
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
routed to optimize EDI utilization and specialization of data entry
staff, following lists of payors and clients to be handled separately.
The TAT is to complete processing the zip files received within twelve
(12) hours from the time the files are entered in the processing
folder.
iii) DAILY VOLUME: VBPS will accommodate daily volume variations of
Transactions 30% greater than projected average daily volume, subject
to the availability of resources based on the requirement that Athena
has informed VBPS to staff up with for the said processes of Payment
Analysis and Payment Batch Constructor. For example, if the Client
projects an average volume of 1000 Transactions per day, VBPS will be
able to process up to 1300 Transactions on any given day. Any volume
of Transactions in excess of 30% will not be subject to their
respective turnaround time captured in Sec. 2(i) and (ii) above. Also
the abovementioned Turn around time in Sec. 2(i) and (ii) above shall
not be applicable in cases where i) the Document is illegible or
incomplete or ii) VBPS inability to access AthenaNet for reasons not
attributable to VBPS.
3. Price:
i) Beginning from November 30, 2005 for the entire the term of this Task
Order, the ramp-up pricing for VBPS new resources on a full time equivalent
(FTE) basis (each such VBPS resources are herein referred to as "FTE") on
Posting Analysis and new FTE on Payment Batch Constructor shall be charged
at fifty percentage (50%) for the first twenty two (22) business days (the
"Ramp-up Period") from their respective corresponding go-live date. During
this period VBSP shall charge for the new FTE on Posting Analysis and new
FTE on Payment Batch Constructor at the rate of US $ * per hour per full -
time equivalent (FTE) for Normal Time and US $ * per hour per full - time
equivalent (FTE) for Over Time. After the completion of the ramp-up period
VBPS shall charge Athena for the Services of Posting Analysis and Payment
Batch Constructor as per the rate mentioned in C1.3(ii) of this Task Order
4."
ii) From December 30, 2005 VBPS will charge Athena for the VBPS Services
under this Task Order at the following rates: -
OVER TIME
NORMAL TIME RATES PER
SERVICE RATES PER HOUR HOUR
------- -------------- ---------
Posting Analysis (Per FTE) US $* US $*
Payment Batch Constructor
(Per FTE) US $* US $*
iii) VBPS will invoice Athena on a monthly basis. Athena shall make
complete payment of the invoiced amounts to VBPS within thirty (30) days
from the date
of the invoice. Athena shall pay to VBPS the complete invoiced amounts
without any deduction on account of non-payment by the clients of Athena.
Late payments shall attract interest from the due date at the lesser of (i)
one and a half percent per month, to accrue on a daily basis with monthly
rests and to run from the due date until payment of such amount in full, or
(ii) the maximum rate permitted by law.
4. Cost of Living Adjustment.
The cost of living adjustment index would be based on the information made
available by Reserve Bank of India (RBI) for each year, in the website
below.
xxxx://xxx.xxx.xxx.xx/xxxxxxx/XxxxxxxxxxxxXxxx.xxxx?xxx0000#0
We would be referring to the Harmonized Index of Consumer Prices (HICP) for
Consumer Price Inflation (CPI) - Urban non Manual employees index shared by
RBI (Reserve Bank of India) in the above website link. This index is
proposed since it is released by RBI (Reserve Bank of India, Apex Bank
regulated by the Government of India) and also is the closest index
available for cost of Living and urban population. For instance, the cost
index for the year 2004-2005 has been at 5%. With respect to the rates for
charges stated in this Task Order, commencing on the first anniversary of
the Effective Date and on each anniversary thereafter during the term of
the Task Order, such rates, applicable from time to time to the Task Order,
will be increased, with effect from each anniversary, by percentage as
released by RBI for the above referred index.
5. Other Terms:
PSBPS and Athena will separately do a time study, mutually agree and
document the turnaround times, quality, auditing and other compliance
requirements and obligations.
AGREED:
Vision Business Process Solutions, Athenahealth, Inc.
Inc.
By: /s/ Xxxxxxxx Xxxx By: /s/ Xxxxx Xxxxxxxx
--------------------------------- ------------------------------------
Name: Xxxxxxxx Xxxx Name: XXXXX X XXXXXXXX
Title: Managing Director Title: Vice President
Date: 8/23/06 Date: 8/23/06
TASK ORDER 5 TO SERVICE AGREEMENT
This Task Order (the "Task Order") is entered into on this October 13, 2006
under the Master Services Agreement dated December 9, 2002, read in conjunction
with Amendment No. 1 dated October 13, 2004, Amendment No. 2 dated March 8,
2005, and Amendment No. 3 dated April 12, 2006 (together, the "Agreement")
executed amongst Athenahealth, Inc., ("Athena"), Vision Business Process
Solutions Inc., (VBPS) and Xxxxx Systems Business Process Solutions India
Private Limited (formerly know as "Vision Healthsource India Private Limited and
hereinafter called "PSBPS").
1. Term:
This Task Order shall be in effect for a period of thirty-six (36) months
(the "Initial Term") from March 21st 2006 (the "Effective Date") subject to
the Master Service Agreement dated December 9, 2002 being in force. Upon
expiration of the Initial Term, this Task Order will automatically be
renewed for consecutive additional terms of two (2) years each.
Notwithstanding the foregoing, either party may terminate this Task Order
with or without cause, effective at the end of the then current term
(including the Initial Term) by providing the other party written notice of
its intent to cancel at least sixty (60) days prior to the expiration of
the then current term.
2. Scope of Work:
Under the terms and conditions of this Task Order, VBPS shall provide the
following services:
i) PAYTO - This service entail work on claims which are moved to Payto
Bucket in claim tracking, in order to check whether the Providers
Payto address is correct. The Payto datase is copied and saved from
Citrix to the Local Drive. Claims are then allotted to each Enrollment
Analyst, in an excel worksheet saved in the local disk. The Analyst
then places a call to the Payor, to verify the accuracy of the Payto
address. Once the Payor has verified the correct Payto address, then
the same is documented on the AthenaNet with effective date and
appropriate kick code. Else, the required documents (w9, request
letter, Payor form) are faxed to the Payor to change the address.
ii) PAYTO CHANGE- - The service entails confirming with the Payor that the
address change request has been completed properly. This confirmation
consists of a follow up call after the address change request has been
sent. The Enrollment Analyst calls the Payor, to verify if the Payto
address has been updated as requested. If the Payor has the correct
Payto address, then it will be documented in the AthenaNet with the
effective date and appropriate Kick code; else, the required documents
(w9, request letter,
Payor form) are faxed to the Payor to request that the change in the
address be made.
iii) LOCKBOX MIGRATIONS - The Service entail to changing the billing
address for an entire medical group. In this process, documentation is
done on the Citrix and not on AthenaNet. A list of Payors is entered
into an excel spreadsheet and saved to Citrix. The Analyst then places
calls to the Payor and confirms their process for changing Payto
addresses. The required documents (w9, request letter, Payor form) are
then faxed to the Payor to change the address. The enrollment analysts
make follow up phone calls to the Payor until the new Payto address
has been confirmed with all Payors.
iv) ELIGIBILITY ERROR REPORT - The Service entails working a list of
eligibility enrollment errors, which are saved to an excel spreadsheet
on Citrix. Enrollment analysts review the spreadsheet and refer to the
Payor Set-up Guide to determine the eligibility enrollment process for
Payors and clearinghouses. The Enrollment Analysts then follow the
process outlined in the Payor Set-up Guide to complete enrollment.
v) BAD PAY TO ERRORS - The service entails working a list of pay to
errors outside of athenaNet, which are saved to an excel spreadsheet
on Citrix. The Analyst places a call to the Payor, to verify that the
Payor has the correct Payto address. If the Payor has the correct
Payto address then the same is documented on the spreadsheet. Else,
the required documents (w9, request letter, payor form) are faxed to
the Payor with a request that they change the address.
vi) SMALL GROUPS IMPLEMENTATIONS - The service entails completion of all
necessary enrollment work required to bring a practice live on
athenaNet. Enrollment analysts call Payors to verify provider and
group numbers; complete enrollment paperwork to enroll clients for
electronic transactions, including E-Claims, Electronic Remittance
Advice, eligibility and Electronic Funds Transfer; follow up with
Payors to make sure enrollment paperwork is approved; and change the
practice's Pay To address with Payors.
3. Price:
i) Beginning March 21,2006 and extending for the entire term of this Task
Order, the ramp-up pricing for VBPS's new resources on a full time
equivalent (FTE) basis (each of such VBPS resource are hereinafter
referred to as "FTE") on Payto, Payto Change, Lockbox Migrations,
Eligibility Error Report, Bad Pay to Errors and Small Groups
Implementations shall be charged at fifty percent (50%) for the first
twenty two (22) business days (the "Ramp-up Period") from their
respective corresponding Go-Live date. During this period VBPS shall
charge Athena for the new FTE on Payto, Payto Change, Lockbox
Migrations,
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
Bad Pay to Errors and Small Groups Implementations at the rate of US $
* per hour per full - time equivalent (FTE), Eligibility Error Report
at the rate of US $ * per hour per full - time equivalent (FTE) for
Normal Time and US $* per hour per full - time equivalent (FTE) for
Over Time. After the completion of the ramp-up period VBPS shall
charge Athena for the Services of Payto, Payto Change and Lockbox
Migrations as per the rate mentioned below in Cl.3(ii) of this Task
Order.
ii) From April 21, 2006 VBPS will charge Athena for the VBPS Services
under this Task Order at the following rates:-
NORMAL TIME RATES OVER TIME RATES
SERVICE PER HOUR (PER FTE) PER HOUR
------- ------------------ ---------------
Payto US $* US $*
Payto Change US $* US $*
Lockbox Migrations US $* US $*
Eligibility Error Report US $* US $*
Bad Pay To Errors US $* US $*
Small Groups
Implementations US $* US $*
iii) VBPS will invoice Athena on a monthly basis. Athena shall make
complete payment of the invoiced amounts to VBPS within thirty (30) days
from the date of the invoice. Athena shall pay to VBPS the complete
invoiced amounts without any deduction on account of non-payment by the
clients of Athena. Late payments shall attract interest from the due date
at the lesser of (i) one and a half percent per month, to accrue on a daily
basis with monthly rests and to run from the due date until payment of such
amount in full, or (ii) the maximum rate permitted by law.
4. Cost of Living Adjustment.
The cost of living adjustment index would be based on the information made
available by Reserve Bank of India (RBI) for each year, in the website
below.
xxxx://xxx.xxx.xxx.xx/xxxxxxx/XxxxxxxxxxxxXxxx.xxxx?xxx0000#0
We would be referring to the Harmonized Index of Consumer Prices (HICP) for
Consumer Price Inflation (CPI) - Urban non Manual employees index shared
by RBI (Reserve Bank of India) in the above website link. This index is
proposed since it is released by RBI (Reserve Bank of India, Apex Bank
regulated by the Government of India) and also is the closest index
available for cost of living and urban population. For instance, the cost
index for the year 2004-2005 has been at 5%. With respect to the rates for
charges stated in this Task Order, commencing on
the first anniversary of the Effective Date and on each anniversary
thereafter during the term of the Task Order, such rates, applicable from
time to time to the Task Order, will be increased, with effect from each
anniversary, by percentage as released by RBI for the above referred index.
5. Other Terms:
PSBPS and Athena will separately do a time study, mutually agree and
document the turnaround times, quality, auditing and other compliance
requirements and obligations.
AGREED:
Vision Business Process Solutions, Athenahealth, Inc.
Inc.
By: /s/ Xxxxxxxx Xxxx By: /s/ Xxxxx Xxxxxxxx
--------------------------------- ------------------------------------
Name: Xxxxxxxx Xxxx Name: Xxxxx Xxxxxxxx
Title: Managing Director Title: Vice President, Claim Operations
Date: October 13th 2006 Date: October 13, 2006
TASK ORDER 6 TO SERVICE AGREEMENT
This Task Order (the "Task Order") is entered into on this September 4, 2006
under the Master Services Agreement dated December 9, 2002, read in conjunction
with Amendment No. 1 dated October 13, 2004, Amendment No. 2 dated March 8,
2005, and Amendment No. 3 dated April 12, 2006 (together, the "Agreement")
executed amongst Athenahealth, Inc., ("Athena"), Vision Business Process
Solutions Inc., (VBPS) and Xxxxx Systems Business Process Solutions India
Private Limited (hereinafter called "PSBPS").
1. Term:
This Task Order shall be in effect for a period of thirty-six (36) months
(the "Initial Term") from March 21st 2006 (the "Effective Date") subject to
the Master Service Agreement dated December 9, 2002 being in force. Upon
expiration of the Initial Term, this Task Order will automatically be
renewed for consecutive additional terms of two (2) years each.
Notwithstanding the foregoing, either party may terminate this Task Order
with or without cause, effective at the end of the then current term
(including the Initial Term) by providing the other party written notice of
its intent to cancel at least sixty (60) days prior to the expiration of
the then current term.
2. Scope of Work:
i) UNPOSTABLE RECORDS: Under the terms and conditions of this Task Order,
VBPS shall provide the services of UNPOSTABLE RECORDS, whereby VBPS
receives a work list from Athena that would contain the details of the
Unpostables to be worked. This work list, along with the allotment will be
placed in the local server for VBPS resources on a full time equivalent
basis (the "Posters") to work. The posters would work the Unpostable
allotted to them based on the priority (Chronological order of Unpostable
created date). The work of the posters is to do the five/six point search
in AthenaNet to see if they are able to identify the patient's record that
would enable us to post a transaction and close the Unpostable. The
different Unpostable records that would be worked by the Posters are EOB
Received - Check Missing, Missing EOB/Missing Page, Missing Check,
Correspondence Identified in Batch, RPO Research Required, Provider
Takebacks, Missing Patient Statement, Duplicate Checks. The TAT is to work
these Unpostable records, within five (5) business days from the date of
creation of the Unpostable record.
ii) DAILY VOLUME:
VBPS will accommodate daily volume variations of Transactions 30% greater
than projected average daily volume, subject to the availability of
resources based on the requirement that Athena has informed VBPS to staff
up for the said processes of Unpostables. For example, if the Client
projects an average volume
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission.
Asterisks denote omissions.
of 1000 Unpostables per day, VBPS will be able to process up to 1300
Unpostables on any given day. Any volume of Unpostables in excess of 30%
will not be subject to their respective turnaround time captured in Sec.
2(i) and (ii) above. Also the abovementioned Turn around time in Sec. 2(i)
and (ii) above shall not be applicable in cases where i) the Document is
illegible or incomplete or ii) VBPS inability to access AthenaNet for
reasons not attributable to VBPS.
3. Price:
i) Beginning from June 13, 2006 for the entire the term of this Task Order,
the ramp-up pricing for VBPS new resources on a full time equivalent (FTE)
basis (each such VBPS resources are herein referred to as "FTE") for
Unpostable Records shall be charged at fifty percentages (50%) for the
first twenty two (22) business days (the "Ramp-up Period") from their
respective corresponding go- live date. During this period VBSP shall
charge for the new FTE on Unpostable Records at the rate of US $* per hour
per full - time equivalent (FTE) for Normal Time and US $* per hour per
full - time equivalent (FTE) for Over Time. After the completion of the
ramp-up period VBPS shall charge Athena for the Services of Unpostable
Records as per the rate mentioned in C1.3(ii) of this Task Order."
ii) From July 13, 2006 VBPS will charge Athena for the VBPS Services under
this Task Order at the following rates: -
NORMAL TIME OVER TIME RATES
SERVICE RATES PER HOUR PER HOUR
------- -------------- ---------------
Unpostable Records US $* US $*
iii) VBPS will invoice Athena on a monthly basis. Athena shall make
complete payment of the invoiced amounts to VBPS within thirty (30) days
from the date of the invoice. Athena shall pay to VBPS the complete
invoiced amounts without any deduction on account of non-payment by the
clients of Athena. Late payments shall attract interest from the due date
at the lesser of (i) one and a half percent per month, to accrue on a daily
basis with monthly rests and to run from the due date until payment of such
amount in full, or (ii) the maximum rate permitted by law.
4. Cost of Living Adjustment.
The cost of living adjustment index would be based on the information made
available by Reserve Bank of India (RBI) for each year, in the website
below.
xxxx://xxx.xxx.xxx.xx/xxxxxxx/XxxxxxxxxxxxXxxx.xxxx?xxx0000#0
We would be referring to the Harmonized Index of Consumer Prices (HICP) for
Consumer Price Inflation (CPI) - Urban non Manual employees index shares by
RBI (Reserve Bank of India) in the above website link. This index is
proposed since it is released by RBI (Reserve Bank of India, Apex Bank
regulated by the Government of India) and also is the closest index
available for cost of living and urban population. For instance, the cost
index for the year 2004-2005 has been at 5%. With respect to the rates for
charges stated in this Task Order, commencing on the first anniversary of
the Effective Date and on each anniversary thereafter during the term of
the Task Order, such rates, applicable from time to time to the Task Order,
will be increased, with effect from each anniversary, by percentage as
released by RBI for the above referred index.
5. Other Terms:
PSBPS and Athena will separately do a time study, mutually agree and
document the quality, auditing and other compliance requirements and
obligations.
AGREED:
Vision Business Process Solutions, Athenahealth, Inc.
Inc.
By: /s/ Xxxxxxxx Xxxx By: /s/ Xxxxx Xxxxxxxx
--------------------------------- ------------------------------------
Name: Xxxxxxxx Xxxx Name: XXXXX X XXXXXXXX
Title: Managing Director Title: VICE PRESIDENT
Date: Sept 11th 2006 Date: Sept 4 2006
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
Interim Agreement for Outsource Claim Follow Up and Credit Balance Services for
Athenahealth
PART 1 - Claim Followup
Background: Athenahealth (Athena) seeks to outsource Claim Follow Up services
described below to Vision Healthsource, Inc. (Vision) for some of its clients.
These services will be performed under subcontract by VHS's Indian subsidiary.
Service Definition
Claims Follow Up: (This claim follow up process does not apply to follow up on
overpayments covered by Part II below). Vision will utilize the interactive
Athena system to provide follow-up services with respect to work lists of claims
provided to it periodically by Athena. As instructed by Athena in writing Vision
will document its work either by entries in such system or on separate problem
logs that will be uploaded to Athena separately.
The service will involve Vision accessing detailed claim information including
claim history - re-filing dates and previous calls, authorization numbers,
referral numbers etc. Athena will assign the accounts that they would like
Vision to follow up on. Vision will work on pending claims. Vision will:
- Research the account to determine need for a call and verify previous
claim activity
- Follow-up with the appropriate payer
- Document the content and outcome of the call, which will include a
detailed description of the call (Example, Insurance Paid - Vision
will document the amount paid on claim, amount paid on check, check
number, check date and the address to which the check was sent) and a
relevant kick-code for automatic follow-through action on AthenaNet.
All of the above services will be performed in compliance with the steps,
measures, and instructions and requirements set forth in the Follow Up
Instructions contained in Attachment A. In the event of any contradiction, the
Follow-up Instructions will prevail. Athena may reasonably amend the Follow Up
Instructions in writing from time to time by sending the amended version or
additional language to a Vision manager, and Vision will be obligated to comply
with the Follow Up Instructions as amended, provided that if such amendment
requires material additional staffing, Vision will so inform Athena in writing
within 7 days and will be permitted a reasonable time to assemble the necessary
staff, except that Vision will be required to comply promptly with any amendment
that is designed to address any material deficiency in Vision services.
Pricing: Vision will xxxx Athena per on a transaction basis per claim. The price
for this Service is $*/claim.
Part II - Credit Balancing
Background. Athenahealth seeks to outsource credit-balancing services described
below to Vision. These services will be performed under subcontract by VHS's
Indian subsidiary.
Service Definition
Vision will utilize the interactive Athena system to provide credit-balancing
services with respect to work lists of claims provided to it periodically by
Athena. As instructed by Athena in writing Vision will document its work either
by entries in such system or on separate problem logs that will be uploaded to
Athena separately. As part of the credit balancing services, claims may be
resolved either with or without follow up and the work required differs with
respect to each type. The service therefore has two components - Processing and
Follow Up.
Processing:
- Vision will analyze the claim to determine how the claim got into a
credit balance or to be more specific as a result of whose payment
(Insurance company) the claim went in to a credit balance.
- The reasons identified may be one or more of the following:
1. Duplicate payment by same Insurance
2. Duplicate posting by the payment poster
3. Wrong posting or posting error
4. Multiple Insurances paying as primary
5. Multiple Insurances paying as secondary
6. Interest payment
7. Lack of COB
8. Primary or secondary over paid as per their fee schedule
9. Other
- The analysis will be accomplished by opening the online EOB and
understanding exactly how and who made the overpayment.
- The particular online EOB is a link to the entire batch, most of the
time, and Vision will be required to search it by scrolling through
the batch.
- Once the overpayment is identified then Vision will classify and take
the appropriate decision or the action. Common actions addressing each
of the first 8 reasons above in order include but are not limited to
the following:
1. Send to AR with Instructions
2. Problem log entry for Athena to reverse the postings
3. Problem log entry for Athena to correct the postings
4. Send to AR with Instructions
5. Send to AR with Instructions
6. Post kick code and claim note in the software
7. Send to AR with Instructions
8. Send to AR with Instructions
- The AR Instructions will clearly state which Insurance should be
called, for what amount and what information should be asked for in
order to resolve the credit balance.
- Vision will clearly document AR Instructions, problem logs, kick code,
and claim notes in the Athena system. If the batch link is for the
whole batch then exact page
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
numbers will be mentioned so that the AR agent does not search again
and waste time.
Follow Up:
- The AR agent will view the claim in the Athena system as well as the
associated EOB and will read all the Instructions and problem logs.
- The AR agent will confirm the overpayment to the Insurance company
which includes the amount, check number etc. and also the refund
address if that company does not have a take back facility.
- Once this is done, Vision will document the claim notes and the kick
codes in the Athena system.
- On appropriate claims, the AR agent will call multiple Insurance
companies to confirm with both Insurance companies (in case 2
insurance are paying as primary/secondary) as to who was supposed to
make the payment.
- If both Insurance Companies say they are the primary/secondary then
the claim will be forwarded to the provider and instructions
documented in the Athena system to the provider to get the information
from the patient. This is done through the claim note.
- Exceptions are Insurance company not able to identify the over payment
and needing time to audit, call back, etc. Some of these situations
are appropriately documented in claim notes and some in the problem
logs, as instructed by Athena.
- The kick code and claim note is entered in to the Athena system and
the problem log is uploaded to Athena.
All of the above services will be performed in compliance with the steps,
measures, and instructions and requirements set forth in the Credit Balancing
Instructions contained in Attachment B. IN the event of any contradiction, the
Credit Balancing Instructions will prevail. Athena may reasonably amend the
Credit Balancing Instructions in writing from time to time by sending the
amended version or additional language to a Vision manager, and Vision will be
obligated to comply with the Credit Balancing Instructions as amended, provided
that if such amendment requires material additional staffing, Vision will so
inform Athena in writing within 7 days and will be permitted a reasonable time
to assemble the necessary staff, except that Vision will be required to comply
promptly with any amendment that is designed to address any material deficiency
in Vision services.
Pricing: VHS will xxxx Athena per on a per claim basis. The price for this
service is:
Claims not requiring Follow Up $*/Claim
Claims requiring Follow Up $*/Claim
PROVISIONS RELATING TO BOTH PARTS I AND II
Acceptance and Effect. One signed by both parties, this interim agreement will
become part of the formal contract that is already in place between the parties
with respect to posting services as an amendment to that contract. The services
and payments under this interim agreement will be
in addition to those currently in the contract, and this interim agreement will
have effect only as an amendment and not as a separate or independent agreement.
Such amendment is intended by the parties to be temporary, until a more detailed
and thorough amendment can be agreed. Promptly after accepting this interim
agreement, the parties will in good xxxxx xxxxxx to establish such a detailed
and through amendment.
Staffing. Vision will ensure that a team of identified employees who are
adequately trained are solely dedicated to work on delivering Athena follow up
services sufficient to handle 2000 claims per day and that another such team is
dedicated to work on delivering Athena credit balancing services.
Quality. Vision will cooperate with Athena in reviewing accuracy of research and
documentation, clarity and politeness of calls, thoroughness of information
gathering, and rate of unnecessary calls of per claim handling. Vision will
remain responsible for the quality of its services; however, if Athena informs
Vision that it believes that any Vision employee is not providing services of
adequate quality, the Parties will review and discuss that performance and the
steps that Vision will take to improve that performance. Vision will take
effective steps to improve employee performance or reassign employees as
necessary to maintain a consistent and high quality level of employee competence
and performance.
Termination of Part I and part II Services. Termination of Part I and/or Part II
services under this section will not affect the parties' other rights and
obligations with respect to other work to be performed under the posting
contract currently in place between the parties. Either party may terminate this
Interim Agreement as it relates to Part I and/or Part II services for any reason
or for no reason upon 180 days written notice to the other. If Athena terminates
this Interim Agreement as it relates to Part I and/or Part II Services under
this paragraph, then following such notice of termination and until the
effective date of such termination the aggregate monthly fee paid by Athena to
Vision on account of the services being terminated will be subject to a minimum
payment amount calculated as follows: the aggregate fee for the services being
terminated in the month immediately following the month in which the notice of
termination was given will be no less than average of the monthly fees paid by
Athena for such services in each of the three months immediately preceding the
notice, and the minimum payment for such services in each succeeding month will
reduced from the original minimum figure by cumulative additional increments of
25% of that that original minimum figure until it is zero. By way of example and
not by way of limitation, if notice of termination as to Part I Services is
given by Athena at the end of March, the minimum fee paid by Athena for Part I
Services for April will the same as the average paid by Athena for Part Services
in the preceding December, January and February, the minimum fee paid by Athena
or Part I Services for May will be 75% of the April minimum figure, the minimum
fee paid by Athena or Part I Services for July will be 25% of the April minimum
figure, the minimum fee paid by Athena or Part I Services for July will be 25%
of the April minimum figure, and the minimum fee paid by Athena or Part I
Services for August and thereafter will be zero. Notwithstanding the foregoing,
if Athena terminates the Interim Agreement as to Part I and/or Part II Services
for cause or if Vision terminates the Interim Agreement as to either or both of
those Services, then there will be no minimum monthly fee during the notice
period.
In addition, if Athena believes in good faith that the quality of Vision
services under Part I and/or Part II s substantially deficient or that the
manner in which Vision is conducting the work materially increases work that
Athena itself must do, it will review the matter in detail with Vision
management to determine the nature of any deficiency and the parties will
cooperate in good faith to establish a mutually agreement written plan of action
to remedy any such deficiency. If the deficiency persists despite the plan, then
Athena may terminate the services and payment under Part I and/or Part II as the
case may be on at least 30 days written notice.
Addition Terms. With respect to the services described in this interim
agreement, the following additional provisions will apply:
- Vision and its subsidiary will perform the services described in a
timely, diligent, competent and professional manner and will exercise
and be bound to exercise care, skill, experience and competence
consistent with the high professional practice in the field;
- Neither Vision nor its subsidiary will access or use other than in
compliance with the procedures and policies that Athena shall provide
to Vision from time to time.
- Neither Vision nor its subsidiary will, directly or indirectly, export
or transmit (i) any software, application, access to Athena systems or
any related documentation or technical data or (ii) any product (or
any part thereof), process, or service that is the direct product of
any service under this interim agreement in or to the People's
Republic of China, Afghanistan, Iraq or any group Q, S, W, Y or Z
country specified in Supplement Xx. 0 xx Xxxxxxx 000 xx xxx Xxxxxx
Xxxxxx Export Administration Regulations or to any other country to
which such export or transmission is restricted by such regulation of
statute, without the prior written consent, if required, of the Office
of Export Administration of the United States Department of Commerce,
or such other governmental entity as may have jurisdiction over such
export or transmission. In addition, and without limitation of the
foregoing, Contractor shall not, directly or indirectly, export or
transmit any of the foregoing, to any country other than as between
Vision and it subsidiary in India; and
- Neither Vision nor its subsidiary will access or use any Athena
system, application or functionality unless and to extent requested by
Athena in writing for purposes of performing Vision's obligations
under this interim agreement. No access to or use of Athena systems,
applications or functionality is transferable by Vision or its
subsidiary.
- In accessing or using Athena systems, applications or functionality,
neither Vision nor its subsidiary (i) make such access or use in
connection with provision of any services to any third party; (ii)
make such access or use other than through and by their own employees
who are registered with Athena individually as authorized users
thereof, (iii) make such access or use other than by electronically
secure means and methods approved I advance in writing by Athena and
only by the use of unique and confidential passwords applied to each
individual user; (iv) resell, lease, encumber, sublicense, distribute,
publish, transmit, provide such access or use to any third party in
any medium whatsoever; (v) make such access or use on any public
system or multiple computer or user arrangement or network accessible
by anyone except Athena, Vision and its subsidiary; (vi) derive
specifications from, reverse engineer,
reverse compile, disassemble, or create derivative works based on
Athena systems, applications; (vii) copy data or screens except on an
occasional basis as necessary to accomplish its work or, (viii) input
or post through or to Athena any content that is illegal, threatening,
harmful, lewd, offensive or defamatory or that infringes the
intellectual property rights, privacy rights or rights of publicity of
others or that contains any virus, worm, Trojan Horse or other
mechanism to damage or impair the operation of Athena systems,
software or hardware or the systems, software or hardware of others or
to grant unauthorized access to any date or system.
- Neither Vision nor its subsidiary will make or operate any copy of any
elements of Athena systems, applications or functionality except as
explicitly authorized by Athena in writing. If and to the extent that
Vision or its subsidiary makes or operates any copy of Athena systems,
applications or functionality, such copy will belong exclusively to
Athena and will be located only upon a server to which Athens is the
sole owner of the root password; and, neither Vision nor its
subsidiary will restrict electronic or physical access of Athena to
such server.
- In accessing or using Athena systems, Vision will not order, review,
access or use any data in excess of that reasonably necessary for it
to perform the work it is obligated to do under this interim
agreement.
athenahealth, Inc. Vision Healthsource, Inc.
By: /s/ Xxxx X. Xxxxxx By: /s/ Xxxxxxxx Xxxx
--------------------------------- ------------------------------------
Name: Xxxx X. Xxxxxx Name: Xxxxxxxx Xxxx
Title: President Title: President
