TECHNOLOGY-ENABLED CARE COORDINATION
SUBSCRIPTION AGREEMENT
As of the Effective Date (as defined below) THIS TECHNOLOGY-ENABLED CARE COORDINATION SUBSCRIPTION AGREEMENT (“Agreement”) is entered into by and between NORTH CAROLINA COMMUNITY CARE NETWORKS, INC., a North Carolina nonprofit corporation (“NCCCN”), and the Participant (hereinafter, “Participant”) identified in the signature space below, each a Party and collectively Parties.
FOR GOOD AND VALUABLE CONSIDERATION, the receipt and sufficiency of which is admitted and acknowledged, the parties agree as follows:
1.COMPOSITION OF AGREEMENT. The Agreement is comprised of the attached General Terms and Conditions, and the Exhibits listed below, each and all of which are incorporated herein by reference:
EXHIBIT A: Service Election and Fee Schedules
EXHIBIT B: NCCCN Participation Agreement
EXHIBIT C: Fostering Health NC Program
2.EFFECTIVE DATE. The Agreement is effective as of the date on which it is executed by Community Care of North Carolina, Inc., (“CCNC, Inc.”) as an Authorized Signatory and parent company of NCCCN and on behalf of each such entity set forth in the signature line below.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the dates set forth underneath their signatures appearing below.
NCCCN:NORTH CAROLINACOMMUNITY CARE NETWORKS, INC., a North Carolina nonprofit corporation
By: Community Care Of North Carolina, Inc., as Authorized Signatory of NCCCN and on behalf of each such entity
Name: Torlen Wade, its Executive Vice-President
Date______/ PARTICIPANT:
Address:
By:
Name:
Its: ______
Date:
RECITALS, GENERAL TERMS AND CONDITIONS
RECITALS:
A.North Carolina Community Care Networks, Inc. (NCCCN) has established and maintains an electronic health information exchange system (“Informatics Center”) and in connection therewith makes Services (as defined herein) available for use by Participants in connection with one or more health care quality improvement initiatives programs administered or sponsored by the Community Care of North Carolina Program.
C.Participant desires to subscribe to certain Services offered byNCCCN, to electronically access, use and disclose Patient Information for certain Permitted Purposes, all in accordance with the terms and conditions of this Agreement and the Participation Agreement (as defined below).
GENERAL TERMS AND CONDITIONS:
1.DEFINITIONS. All capitalized words and phrases not expressly defined herein and used within this Agreement and the recital paragraphs hereof shall have the definitions ascribed to such capitalized words and phrases as are set forth within the Participation Agreement which definitions are incorporated herein by reference.
2.ACCESS TO PATIENT INFORMATION.
(a)Grant of Access to Participants: For and during the Term of this Agreement and conditioned upon the Participant’s compliance with all of the terms and conditions of this Agreement, and the Participation Agreement, NCCCN grants to Participant a limited, non-exclusive, personal, non-transferrable, royalty-free right and license to access, disclose and use Patient Information through its Systems solely to carry out Permitted Purposes. Any such access and use shall at all times and in each instance be undertaken in full compliance with this Agreement, the Participation Agreement, and applicable Policies and Procedures which may be amended from time to time.
(b)Grant of Access to Participant’s Participating Entities: Entities that control one another or are under common control by a parent or other entity (“Affiliates”) may elect to execute this Agreement as a single Participant or multiple Participants. If this Agreement is executed by a single Participant on behalf of one or more of its Affiliates, and provided that Participant has the authority to do so, the individual Affiliates shall be listed (including the name and contact information for a representative of the entity) on Exhibit D to this Agreement captioned “Participating Entities” (such Affiliates referred to hereinafter as a “Participating Entity” or as “Participating Entities”) and each Participating Entity so listed shall be individually entitled to the rights and subject to the obligations set forth in this Agreement and the Participation Agreement. References in this Agreement to Participant will be deemed to also reference such Participant’s Participating Entities unless the context requires otherwise. If a Participant identifies Participating Entities, the Participant hereby warrants, represents and agrees that Participant:
1)Has written authority to bind each of the identified Participating Entities to the duties and obligations set forth in this Agreement and the Participation Agreement; and
2)If and to the extent the Participant does not have appropriate written authority to bind a Participating Entity to this Agreement; the Participant hereby guarantees the Participating Entity’s performance of Participating Entity’s obligations under this Agreement and the Participation Agreement, and shall indemnify and hold NCCCN harmless from all costs, expense, liabilities and losses incurred by NCCCN as a result of or arising from Participant’s lack of actual written authority to execute this Agreement on behalf of, and to contractually bind, its Participating Entities.
(c)Grant of Access to Participant’s Authorized Users: Participant may authorize persons whose conduct, in the performance of work for the Participant, is under the direct control of the Participant, including members of its own workforce, its independent contractors, and credentialed members of its medical or other professional staffs to access, disclose or use Patient Information only to the extent consistent with this Agreement and solely for Permitted Purposes. Participant acknowledges and agrees that it is responsible for its Authorized Users’ access, disclosure and use of Patient Information by use of any security credential received or obtained, directly or indirectly, lawfully or unlawfully, from Participant or its Authorized Users.
3.SUBSCRIPTION TO SERVICES; FEES.
(a)Subject to the terms and conditions of this Agreement, Participant hereby subscribes to use the services identified on the Service Election and Fee Schedule attached hereto as Exhibit A (severally and collectively, the “Services”), and NCCCN agrees to make available such Services to Participant for its use, and use by Participant’s Authorized Users, which shall be subject to the further terms and conditions of this Agreement and the Participation Agreement. Upon written notice received by Participant at least sixty (60) days before the end of the initial term of this Agreement or the then current renewal term, NCCCN reserves the right in its sole discretion to discontinue the offering and availability of any or all of the Services and shall have no liability to Participant or its Authorized Users for or arising out of such discontinuance of Services, provided such discontinuance shall only be effective as of the expiration of the initial term of this Agreement or the then current renewal term. Participant is also entitled to receive support and maintenance as part of the subscription services and such Service Level Agreement is described in an attachment to Exhibit A, provided that Participant is not in default of their subscription fees as defined herein.
(b)By its execution of this Agreement, Participant agrees to comply with the terms and conditions of this Agreement with respect to the elected Services, and the terms and conditions of the Participation Agreement.
(c)In consideration of the rights granted Participant hereunder, Participant shall pay any fees as determined by NCCCN at the times and in the manner, and subject to all other terms and conditions, as are set forth on Exhibit A, without notice or demand therefor, and without deduction or offset therefrom. All fees paid by Participant to NCCCN pursuant to this Agreement shall be non-refundable under all circumstances, including without limitation in the event of the early termination of this Agreement by Participant pursuant to Section 6 hereof. Upon written notice received by Participant at least sixty (60) days before the end of the initial term of this Agreement or the then current renewal term, NCCCN reserves the right in its sole discretion to increase or decrease the fees to be charged Participant for any or all of the Services to which Participant is then subscribed pursuant to this Agreement and shall have no liability to Participant or its Authorized Users for or arising out of such increase or decrease in fees, provided any such increase or decrease in fees shall only be effective as of the expiration of the initial term of this Agreement or the then current renewal term.
(d)In the event that: (i) Participant elects to discontinue its subscription to any one or more of the Services, (ii) Participant elects to subscribe to additional services offered by NCCCN and not initially subscribed to by Participant, or that NCCCN first makes available for subscription by Participant subsequent to the Effective Date of this Agreement, or (iii) NCCCN elects to discontinue the offering and availability of any or all of the Services, the parties shall execute a new Service Election and Fee Schedule which shall be in substantially the form attached as Exhibit A to reflect the change in Services or addition of additional Services, and fees owed on account of the applicable subscription change(s). The execution of a new Service Election and Fee Schedule by Participant and NCCCN shall be deemed to amend any and all prior Service Election and Fee Schedule(s) executed by the parties and without the necessity of any further action on the part of Participant or NCCCN.
4.ELECTION TO PARTICIPATE IN NCCCN PROGRAMS.
(a)To the extent Participant elects to participate in one or more patient centered quality improvement initiatives sponsored or administered by NCCCN, (hereinafter, “CCNC Programs”), identified on the CCNC Program Election Form attached hereto as Exhibit C and incorporated herein by reference, Participant agrees to participant in such CCNC Programs at the times and in the manner, and subject to all other terms and conditions, as are set forth on such CCNC Program Election Form and relevant Attachments.
(b)In the event: (i) the availability of a CCNC Program is discontinued, (ii) Participant elects to discontinue its participation in any one or more CCNC Programs, which Participant may do at any time with written notice, or (iii) a Participant elects to participate in one or more additional Programs not initially elected by Participant, the Parties shall execute a new CCNC Program Election Form, which shall be in substantially the form attached as Exhibit C to reflect the discontinuance of the CCNC Program or addition of additional CCNC Program(s). The execution of a new CCNC Program Election Form by the Parties hereto shall be deemed to amend any and all prior CCNC Program Election Form(s) executed by the Parties and without the necessity of any further action on the part of Participant or of NCCCN.
5.STATEMENTS OF WORK. The parties contemplate that during the Term of this Agreement, Participant may request that NCCCN provide certain customized services or special projects to Participant. In such event, Participant shall identify any such services which Participant desires be performed by NCCCN and, subject to the decision by NCCCN to provide the services desired by Participant, NCCCN shall prepare a proposed statement of work (a “SOW”) and attach to this Agreement. The SOW shall include, if and to the extent applicable:
(a)A reasonably detailed identification and scope of the services and or project to be performed for Participant under the specific SOW, and the location where such services will be performed;
(b)Any specific deliverables or milestones to be achieved under such SOW;
(c)The fees, anticipated costs and expenses for the services to be performed under such SOW;
(d)The time period during which performance of the services under such SOW shall be performed and completed;
(e)Specific staffing requirements for the particular services; and
(f)Such other information as Participant and NCCCN deem relevant to the services covered by the SOW.
Upon the full execution of any SOW, such SOW shall be automatically deemed incorporated by reference into this Agreement. Notwithstanding the foregoing, nothing in this Agreement shall constitute a commitment of the parties to enter into any particular SOW and in the event of any inconsistency between this Agreement and a SOW, this Agreement shall govern and control, except with respect to compensation and payment terms in a SOW, and terms in a SOW that are specifically identified as superseding the terms of this Agreement.
6.TERM; TERMINATION.
(a)Term; Renewal; and Without Cause Termination Rights. Unless otherwise provided in Exhibit A of this Agreement, the term of this Agreement shall commence on the Effective Date and shall continue in effect thereafter through December 31 of the year of the Effective Date. Following such initial term, this Agreement will automatically renew for consecutive periods of one (1) year each (the initial term, collectively with any such renewal terms, the “Term”). Either party may terminate this Agreement upon ninety (90) days prior written notice to the other Party.
(b)For Cause Termination by Participant. Participant may terminate this Agreement immediately in the event of NCCCN’s material breach of any term or condition of this Agreement, provided that such breach remains uncured after a period of sixty (60) days following NCCCN’s receipt of written notice from Participant describing in reasonable detail the nature of such breach, and provided further that in the event any such breach is incapable of being cured within such sixty (60) day time period, Participant shall have no right to terminate this Agreement in the event that NCCCN shall have begun diligently pursuing a cure of such breach during said sixty (60) day time period.
(c)For Cause Termination by NCCCN. NCCCN may terminate this Agreement immediately upon the occurrence of any of the following events:
1)A breach by Participant of any of the terms and conditions of this Agreement, including without limitation any failure of Participant to pay any fees owed by Participant pursuant to this Agreement at the time when due, which breach remains uncured beyond a period of sixty (60) days following Participant’s receipt of written notice from NCCCN describing in reasonable detail the nature of such breach. NCCCN shall have no right to terminate this Agreement in the event Participant shall have begun diligently pursuing a cure of such breach during the sixty (60) day cure period.
2)A breach by Participant of any of the terms and conditions of the Participation Agreement, which breach remains uncured beyond any available cure periods set forth within the Participation Agreement; or
3)The termination by Participant of its status as a Participant Party to the Participation Agreement in accordance with the terms of the Participation Agreement, or the termination by NCCCN of Participant as a Participant Party to the Participation Agreement in accordance with the terms of the Participation Agreement.
(d)Without Cause Termination by Participant. At any time after the Effective Date, and without cause, Participant may terminate its subscription to one or more or all of the Services initially subscribed to by Participant as of the Effective Date, or subsequently subscribed to by Participant after the Effective Date in accordance with the terms of this Agreement, by giving NCCCN at least ninety (90) days prior written notice of such termination election, which notice shall describe in reasonable detail the particular Service(s) that Participant desires to terminate.
(e)Without Cause Termination by NCCCN. NCCCN, as applicable, may, without cause, terminate this Agreement or Participant’s subscription to one or more of the Services upon ninety (90) days prior written notice to Participant, provided that such written notice restriction shall not apply in the event that NCCCN is unable to comply with such written notice restriction due to the inability or lack of authority of NCCCN, as applicable to continue offering one or more of the Services.
7.INSURANCE. During the Term of this Agreement, Participant shall obtain, and keep in force reasonable Cyber Liability or other insurance coverage to insure against breach notification expenses, including, but not limited to, regulatory investigation, notification, and credit monitoring provided for affected individuals. Participant shall provide certificates of insurance evidencing such coverage to NCCCN upon the reasonable request of NCCCN during the time of Participant’s subscription to Services. Notwithstanding the foregoing, Participant may self-insure by assuming in whole or in part the liability for such expenses specified above without purchasing and obtaining commercial Cyber Liability or other insurance. If Participant does not maintain, in whole or in part, commercial Cyber Liability or other insurance required by this Section 7, it shall be deemed to have elected to self-insure. If Participant does self-insure, Participant shall not be obligated to deliver any certificate or other evidence of insurance otherwise required by this Section 7.
8.LIMITATION OF LIABILITY. To the fullest extent permitted by applicable law, the total aggregate liability of NCCCN, regardless of whether such liability is based on breach of contract, tort, strict liability, breach of warranties, failure of essential purpose or otherwise, with respect to the services PROVIDED UNDER THIS AGREEMENT, shall be limited to the fees paid NCCCN by PARTICIPANT PURSUANT TO THIS AGREEMENT during the twelve (12) month period immediately preceding the occurrence of the event(s) giving rise to the applicable demand(s) and or claim(s). EXCEPT IN CONNECTION WITH NCCCN’s AND PARTICIPANT’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 9 (INDEMNITY) OF THIS AGREEMENT, IT IS EXPRESSLY AGREED THAT IN NO EVENT SHALL EITHER NCCCN OR PARTICIPANT BE LIABLE TO THE OTHER FOR ANY CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, SPECIAL, INDIRECT OR PUNITIVE DAMAGES SUFFERED BY EITHER PARTY OR ANY THIRD PARTY, ARISING FROM THE COURSE OF SUCH PARTY’S PERFORMANCE OF, OR OMISSION TO PERFORM, ITS OBLIGATIONS PURSUANT TO THIS AGREEMENT.
9.INDEMNITY.
(a)To the extent permitted under Applicable Law, Participant shall protect, defend, indemnify, and hold NCCCN, and NCCCN’s officers, directors, agents, contractors, and employees harmless from and against any and all third Party claims, demands, actions, or suits brought against NCCCN, and any and all losses, costs, reasonable expenses (including reasonable attorneys’ fees), damages, liabilities, recoveries and judgments of every nature or description brought against NCCCN or any of the foregoing officers, directors, agents and employees of NCCCN and arising out of (i) the performance by Participant of the obligations to be performed by it hereunder and (ii) any breach by Participant of its obligations, agreements or covenants under this Agreement.