Software And Services Agreement
THIS AGREEMENT is dated November 14, 2018 (“Effective Date”) and is between ECL Group, LLC, a North Carolina limited liability company whose physical address is 2222 Sedwick Road, Durham, NC 27713 (“ECL”), and CLIENT (“Client”). ECL and Client may be referred to individually as a “Party” or collectively as the “Parties”.The Parties agree as follows:
Terms of Agreement. This Agreement, including any applicable Appendixes, sets forth the terms and conditions under which Client may access and use the Software and receive Services provided by ECL. The Software licenses and Services ordered by Client will be specified in one or more order forms (each, an “Order Form”) which are executed by the parties pursuant to this Agreement. Each Order Form will be governed by the terms of this Agreement and the term “Agreement” herein, includes the terms of this Agreement and all Order Forms executed pursuant to this Agreement whether on or after the Effective Date. In the event of any conflict or inconsistency between the terms and conditions of this Agreement and the terms of any Order Form, the terms and conditions of the Order Form shall govern. Client shall pay the fees and costs described in the Order Form in accordance with this Agreement.
Software. As used herein, “Software” shall mean the software programs, applications and processes owned by, or licensed to, ECL and described on an Order Form, and all modifications, versions and enhancements thereof made available by ECL to Client.
License Grant. During the Term, ECL grants to Client a nonexclusive, non-transferable right to access and use, and assign access rights to Client’s Providers, to the Software solely for Client’s own business operations. Except as specifically authorized in this Agreement, Client will not allow third parties to access the Software, or use the Software for third-party training, commercial time-sharing, rental or service bureau use. Client acknowledges that it has no rights in the Software, except those expressly granted under this Agreement. Client will not, and will not permit its Providers to, reverse engineer, modify or make derivative works of the Software. Any and all rights not expressly granted by ECL under this Agreement are reserved by ECL. The Software includes those components defined in the Appendix.
Services. During the Term, Client may elect to receive one or more services offered by ECL by completing an Order Form. Upon acceptance by ECL, ECL will provide the Services as agreed to in the Order Form.
Scope. ECL shall provide access to the Software to the number of full-time and part-time providers (process three hundred  claims per month or less) listed in the Order Form. The license is granted for one (1) billing entity. The Software may be used only at the authorized Site(s) (as defined in the Order Form) and may not be used at more than the number of Sites listed in the Order Form; provided however, Permitted Users may connect with the Software remotely from other locations solely for Client’s business purposes.
Payment. In consideration of the rights granted and Services provided to Client under this Agreement and as a condition precedent to ECL’s obligations under this Agreement, Client agrees to following payment terms and schedule.
|One-time||at the Agreement Effective Date unless otherwise stated in the Order Form|
|Monthly subscription||the earlier of go-live of the Software, or three (3) months from and after the Effective Date|
|Monthly service fees||as stated in the Order Form|
|Taxes||The fees are not inclusive of any sales, excise, use, or other taxes which may be assessed on the Services or use of the Software provided to Client in connection with this Agreement. Client will timely pay all such taxes that may be assessed on such services and products.|
Charges. ECL will charge Client’s credit card as Client authorizes on the Order Form or invoice Client. Client will pay to ECL monthly subscription and service fees set forth on the invoice within 15 days of the end of each month. A late charge of one and one-half percent (1.5%) per month, or the legal maximum if less, shall accrue on past due billings unless Client notifies ECL of a billing dispute in writing prior to the payment due date. Client shall be responsible for any costs incurred by ECL in the collection of unpaid invoices including, but not limited to, collection and filing costs and reasonable attorney’s fees.
Annual Adjustment. During the initial term, ECL shall be entitled to increase the Monthly Fee once per calendar year upon 30 days’ notice to Client. Each increase shall be limited to the increase in the U.S. Department of Labor, Consumer Price Index for All Urban Consumers (“CPI”) for the most recently available 12-month period preceding such 30-day notice period.
Audit. ECL or its agents have the right to electronically monitor and/or on-site audit (annually with notice to Client) Client’s use of the Software to verify the number of users accessing the Software. Any additional Providers or Users identified as accessing the Software shall be charged to Client from the date of that additional Provider’s first login to the Software.
Loss. ECL will not be responsible for loss or corruption of data, lost or delayed communication, or any other loss, damage or performance limitation of any kind arising from or attributable to any deficiencies in the hardware, telecommunications or Internet services utilized by Client.
Term This Agreement shall commence as of the Effective Date and continue in effect, unless earlier terminated as provided herein, for an initial period of 36 months. Thereafter this Agreement will automatically renew for additional one (1) year terms unless either Party provides the other Party with notice of its intent to not renew this Agreement 90 days prior to the expiration of the then current Term. Both the initial period and any renewal terms are referred to collectively herein as the “Term.”
Additional Terms.The Monthly Fee may be adjusted for each additional term, the amount of such increase will not exceed 5% annually. The Monthly Fee will also increase if Client licenses additional Software modules, databases or billing entities or adds additional Services. ECL will invoice Client for the Monthly Fee at least twenty-five (25) days prior to each Due Date, or charge Client credit cared for the Monthly Fee on the 1st of each month.
Termination. Either Party may terminate this Agreement if the other Party materially breaches the Agreement and fails to remedy such breach within thirty (30) of receipt or written notice from the non-breaching Party identifying the nature of the breach. Upon termination of this Agreement for any reason, Client shall immediately discontinue all use of the Software and shall thereafter have no further right, license or privilege to access or use the Software.
Updates. ECL may develop enhancements and/or other improvements to the program features and functions, and sequential versions to Software (“Updates”). Provided Client’s hardware and networking configuration meets ECL’s system requirements, as provided by ECL, ECL may make generally released Updates to the core product available to Client, at no additional fee. Client’s use of the Updates are subject to the terms and conditions of this Agreement. Updates do not include certain software or enhancements to software obtained by ECL from any other third party software developer. ECL may make such third-party software or enhancements available to Client at a special rate. Client acknowledges that (1) Software remains under permanent development and may not be free of non-material errors; (2) Updates may contain additions, modifications, changes, or deletions to the programs or tools; Programming corrections made for the exclusive benefit of Client will not be construed as defects or omissions. Any such changes, either in the nature of Updates or other corrections or enhancements, remain the property of ECL and are subject to this Agreement.
Authorized Use. Except as expressly set forth in this Agreement, Client will not share with or provide access to the Software to any third parties (defined as anyone not an owner or employee of Client). Client will employ reasonable security measures necessary to prevent unauthorized users from accessing the Software and Client user ID(s) and password(s) (“Login Information”). Client is solely responsible for the maintenance of Client’s Login Information. Client accepts responsibility for, and will be liable for all access provided by it to Software in connection with Client’s Login Information. Client will inform all employees who are given access by Client to Software that such materials are confidential and contain trade secrets of ECL licensed to Client as such. Client will not allow and will prevent its former employees from accessing Software. Client is solely responsible for the accuracy of any information entered into myCare and for verifying any coding suggestions provided through Software. Client will be responsible for all activities that occur under or in connection with the user accounts set up for each User License.
Restrictions. Client will not carelessly: (1) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful or violative of third party privacy rights; (2) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (3) interfere with or disrupt the integrity or performance of Software, or the data contained in the foregoing; (4) attempt to gain unauthorized access to Software or its related systems or networks; (5) access Software to monitor its availability, performance or functionality in any manner that may degrade the performance of Software, or for any other benchmarking or competitive purposes; or (6) develop or have developed a product or service competitive with Software; (7) develop or have developed a product or services using similar ideas, features, functions, or graphics of Software; or (8) copy any ideas, features, functions, or graphics of Software.
VisionLink Device. If an applicable Order Form includes use of one or more ECL VisionLink Device(s), ECL leases VisionLink Device(s) to Client solely for use with Software. Client will use VisionLink Device(s) in a careful and proper manner and will comply and conform to all applicable laws, ordinances, and regulations. Client will use the VisionLink Device(s) on and in connection with its own computers and equipment only in accordance with the instructions provided by ECL. Client will not, and Client will ensure that all its employees, agents, and representatives do not try to obtain unauthorized access to or otherwise copy the software stored in the VisionLink Device(s). Client will be responsible for maintaining reasonable operating conditions for the VisionLink Device(s), including locating the VisionLink Device(s) in secure locations. Client shall be financially responsible for any damage VisionLink Device(s) caused by the negligence, or misuse by Client. ECL will replace a VisionLink Device that fails to properly operate at no additional cost to Client, unless such failure is the result of the intentional or negligent acts of Client. Upon the termination of this Agreement, Client will deliver VisionLink Device(s) and all other hardware and equipment provided to Client to ECL in good condition, at Client’s cost and expense to such place as ECL will specify. If VisionLink device is not returned within ten days of the Termination of Agreement as outlined in the terms above, Client will be charged the then current lease fee amount of the VisionLink device(s).
Client Data. ECL does not own any confidential, proprietary, personally identifiable or protected health information provided by Client to ECL through the use of the Software or the Services (collectively “Client Data”). Client has the sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, privacy, and right to use of all Client Data. Client agrees that storage or caching of Client Data is not an infringement of any intellectual property rights of Client or otherwise violates any applicable laws. Client agrees that it will not store data on the host server that is subject to the rights of any third parties without first obtaining all required authorizations and rights in writing from such third parties. Client represents that it has the rights to all Client Data, including the right to upload Client Data to the host server in connection with its authorized use of Software. Client agrees that the Client Data and its use and disclosure do not infringe the rights of any third party or violate any applicable laws and agrees to indemnify and hold ECL harmless from any third-party claims of infringement or violation of laws in accordance with this Agreement. Client agrees to access Software and to store and retrieve data using third party programs, including specifically Internet “browser” programs that support data security protocols compatible with those specified by ECL. The Parties agree that all software used to access Software will support the Secure Socket Layer (SSL) protocol. ECL agrees to maintain the security of Client Data using industry-standard data security protocols, and other methods reasonably deemed to be adequate for secure business data and to notify Client in the event of a breach of security involving Client Data. ECL agrees to retain Client Data on a secure server and to maintain data recovery and data backup facilities in accordance with accepted industry practices. ECL warrants that the EMR will reside in/on an environment that maintains a current audit in accordance with, but not limited to, the Statement on Standards for Attestation Engagements No. 16 (SSAE 16).
Post-Termination Data. If this Agreement is terminated or expires, Client can export relevant patient data in CCDA (Consolidated Clinical Document Architecture) format at no expense to Client. Further, upon prior written request from Client in the event of termination or expiration of this Agreement, ECL will (1) cooperate with Client within reason, to transition Client Data to another EMR service provider using CCDA, and (2) prepare and deliver a secure file of all closed Clinic Notes in pdf format at ECL’s standard hourly rates (3) continue to allow Client to access and use Software and VisionLink Device for a period of time not to exceed 6 months, until Client has implemented a replacement for Software and VisionLink Device, provided that Client continues to pay to ECL the fees for access to Software and has fully cured any prior breaches of this Agreement, if applicable.
Warranties and Limitation. ECL warrants the following to Client: (1) ECL is duly organized, validly existing, and in good standing under the laws of the state of its organization. (2) The making, execution, delivery, and performance of this Agreement by ECL constitute valid and binding obligations enforceable in accordance with their terms. ECL MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THIS AGREEMENT, INCLUDING THE SOFTWARE, SERVICES AND THE VISIONLINK DEVICE(S), AND EXPRESSLY DISCLAIMS ALL SUCH REPRESENTATIONS AND WARRANTIES, INCLUDING ANY WITH RESPECT TO TITLE, NON-INFRINGEMENT, MERCHANTABILITY, VALUE, RELIABILITY OR FITNESS FOR A PARTICULAR USE OR PURPOSE. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT.
Indemnification. Client will indemnify, defend, and hold ECL’s Indemnitees harmless from and against any and all third party claims and Losses resulting from or attributable to Client’s breach of this Agreement including Client’s misuse or other use of Software outside the scope of license granted under this Agreement.
Not Exclusive. An election to seek indemnification for a claim arising from an alleged breach of this Agreement will not preclude such Indemnitee from any other rights or remedies it may have at law or in equity for such alleged breach.
Limitation of Liability. NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR CONSEQUENTIAL, SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR EXEMPLARY DAMAGES, COSTS, EXPENSES OR LOSSES OR LOST PROFITS UNDER THIS AGREEMENT. THE PROVISIONS OF THIS SECTION WILL APPLY REGARDLESS OF THE FORM OF ACTION, DAMAGE, CLAIM, LIABILITY, COST, EXPENSE, OR LOSS, WHETHER IN CONTRACT, STATUTE, TORT (INCLUDING NEGLIGENCE), FAILURE OF ESSENTIAL PURPOSE OR OTHERWISE, AND EVEN IF ADVISED OF THE LIKELIHOOD OF SUCH DAMAGES. EXCEPT FOR LIABILITIES RESULTING FROM A PARTY’S INDEMNIFICATION OBLIGATIONS, EACH PARTY’S TOTAL CUMULATIVE LIABILITY FOR ALL MATTERS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE PRODUCT OR ANY SERVICES PROVIDED UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, WILL NOT EXCEED THE SUM OF ALL AMOUNTS PAID OR PAYABLE TO ECL BY CLIENT DURING THE 12-MONTH PERIOD PRECEDING THE CAUSE WHICH GAVE RISE TO SUCH DAMAGES. THIS SECTION SHALL BE GIVEN FULL EFFECT EVEN IN THE EVENT THAT ANY EXCLUSIVE REMEDY PROVIDED HAS FAILED OF ITS ESSENTIAL PURPOSE. THE PARTIES ACKNOWLEDGE THAT THE TERMS OF THIS SECTION REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT THE PARTIES WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS OF LIABILITY
Intellectual Property Rights. All title to and the rights in Software and VisionLink Device(s), including ownership rights to patents (registrations, renewals, and pending applications), copyrights, Trademarks, trade secrets, hardware, other technology, any derivatives, and the goodwill associated with the foregoing is the exclusive property of ECL and/or third parties. Client will not reverse-engineer, decompile, disassemble, translate, create derivative works from, or otherwise attempt to obtain access to the source code of, any aspect of Software. Client will not copy, reproduce, alter, or otherwise modify the Software or VisionLink Device(s). Client will not lease, loan, sublicense, distribute, or otherwise provide others access to or with any aspect of Software or VisionLink Device(s) except as expressly permitted in this Agreement.
Nondisclosure of Confidential Information. Each Party agrees not to reveal or disclose any Confidential Information of the Disclosing Party for any purpose (except as permitted by the following sentence) to any third party, or to use any Confidential Information for any purpose other than as contemplated in this Agreement without the prior written consent of the Disclosing Party. Notwithstanding the foregoing, each Party may disclose certain Confidential Information, on a need-to-know basis to authorized employees or management, agents, attorneys, accountants, consultants, subcontractors and other third party professionals (“Representatives”) under privilege, and provided that the Party is responsible for any breach of this Agreement by its Representatives. Each Party agrees to treat Confidential Information disclosed to it by the other Party with the same degree of care as the Receiving Party uses in protecting its own confidential and proprietary information, but in no event less than a reasonably prudent Person. Confidential Information will not include information which: (1) at or prior to the time of disclosure by the Disclosing Party was known to or independently developed by the Receiving Party, except to the extent unlawfully appropriated by the Receiving Party or third party; (2) at or after the time of disclosure by the Disclosing Party becomes generally available to the public through no wrongful or negligent act or omission on the Receiving Party’s part; or (3) the Receiving Party receives from a third party free to make such disclosure without breach of any legal obligation.
Service Level Addendum. ECL will provide Software to Client in accordance with the Service Level Addendum, which is attached and incorporated by reference to this Agreement.
Business Associate Agreement. In connection with this Agreement, the Parties will enter into a Business Associate Agreement (“BAA”) in the form required by HIPAA and provided by ECL. Each of the Parties will comply with the requirements of HIPAA as set forth in the BAA.
Choice of Law, Jurisdiction and Forum. This Agreement shall be governed by, and constructed in accordance with, the law of the United States and the State of North Carolina. The parties agree that any suit or proceeding under, in connection with, or arising out of this Agreement shall be instituted only in a court (whether federal or state) located in the State of North Carolina.
Waiver of Trial by Jury. THE PARTIES EXPRESSLY WAIVE TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING ANY DISPUTE, CONTROVERSY, OR CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT.
Attorneys’ Fees and Costs. In any suit or action brought to enforce any term, condition, or covenant of this Agreement, or to recover damages arising from any breach of this Agreement, the breaching Party will pay the non-breaching Party’s reasonable attorneys’ fees and all other reasonable costs and expenses that may be incurred by the non-breaching Party if it is the prevailing Party in any suit, action, or in any reviews or appeals, including those fees and costs incurred in any bankruptcy case or proceeding. The term “prevailing party” will mean the Party in whose favor final judgment after appeal, if any, is rendered with respect to the claims asserted in the complaint. “Reasonable attorneys’ fees” are those reasonable attorneys’ fees actually incurred in obtaining a judgment in favor of the prevailing Party.
Force Majeure. ECL will not be liable for any failure to perform its obligations under this agreement because of circumstances beyond its reasonable control, which circumstances may include, but are not limited to, natural disaster, terrorism, third party labor disputes, war, declarations of governments, transportation delays, and telecommunications failure.
Binding Agreement. ECL and Client have obtained all necessary authority, rights, consents, and approvals required to enter into this Agreement and carry out the transactions.
Entire Agreement. This Agreement and the BAA contain the entire understanding of the Parties and supersede all previous verbal and written agreements between the Parties concerning the subject matter of this Agreement. No click through or end user terms and conditions shall have any effect and the terms of this Agreement shall expressly supersede any such additional terms. This Agreement will not be deemed to create a partnership or joint venture, and no party is the other’s agent, partner, employee, or representative. This Agreement may be executed in any number of counterparts, each of which may be executed by less than all of the Parties, each of which will be enforceable against the Parties actually executing such counterparts, and all of which together will constitute one instrument.
SERVICE LEVEL AGREEMENT
This Service Level Agreement (“SLA”) is part of the Software and Services Agreement between the Parties. This SLA sets forth the Service Levels applicable to Software.
Accessibility. ECL shall use commercially reasonable efforts to make the Software available99% of the time, measured on a monthly basis (the “Uptime Target”). The Uptime Target shall exclude down time for losses or interruptions during scheduled maintenance or resulting directly or indirectly from a “force majeure” event including any interruption or failure of telecommunication or digital transmission links, power outages, and Internet slow-downs or failures.
Defect Resolution. ECL will correct errors that substantially impair the performance, utility, or functionality of Software. Defects do not include losses or interruptions of accessibility of Software during scheduled maintenance, or resulting from circumstances beyond reasonable control of ECL. ECL provides telephone support based on the priority level.
|Priority Level||Description||Business Hour Response Time|
|1||Loss or interruption of accessibility of Software, due solely to the failure of the data transmission facilities and/or equipment owned, leased, or managed by ECL. (Outside of Business Hrs. handled as Priority Level 2.)||1 hr of discovery or receipt of notice from Client|
|2||Defect that has not caused losses or interruptions of accessibility of Software due to failure of data transmission facilities and/or equipment owned, leased, or managed by ECL, but which may cause such events if not addressed immediately. This type of Defect is generally classified by one or more systems being down.||12 hrs of discovery or receipt of notice from Client|
|3||Defect that has not caused loss or interruption of accessibility of Software, which Defect can remain unresolved without causing such events. This type of Defect is generally classified by the failure of a device or sub-system that has had minor impact on site functionality and has not resulted in any performance degradation; or a routine change request or a request for technical or administrative information||72 hrs of discovery or receipt of notice from Client|
Service Level Agreement (SLA). ECL’s response times apply to all Client inquiries and are based upon active time spent resolving and/or responding to a reported issue or question excluding any necessary client, third party and ECL communications. Client may request reports detailing ECL’s SLA and other service related metrics to include: received inquiries, resolved inquiries, open inquiries, SLA% (issues resolved within defined SLAs).
In the event that the Software uptime falls below 95% measured over a calendar month, the following remedy will be available to Client:
|We’ll reduce your in month’s subscription fee by||If our SLA rate is drops to|
Service Access. Client acknowledges and agrees that access to Software may be affected by local market telecommunication network activity, capacity and compatibility with third party communication equipment, Internet access, software, servers, and browsers (“Telecommunications”). ECL disclaims and waives any and all responsibility of ECL for any defect or service interruption in connection with Telecommunications, Client acknowledges that the Internet is unpredictable in its performance and may impede access to Software. ECL is in no way responsible for difficulties Client may experience as a result of attempting to transmit data over the Internet, including the security of such data outside of Software, while using Software, and Client waives any and all claims against ECL in connection with such use. ECL is not responsible or liable for any errors, defects, or other issues that may arise or result from the Client System, including any data improperly handled due to Client’s configuration issues.