Exhibit I: Agreement Template

Jefferson Health Information Exchange

Professional Services Contract

This Professional Services Contract (this “Agreement”) is entered into as of the _____ day of ______, 2013 (the “Effective Date”), by and between Jefferson Health Information Exchange (“JHIE”) of Medford, Oregon and ______(“Contractor”), a ______company.

Engagement

JHIE hereby engages Contractor to perform the services listed in the Scope of Work (the “Services”) attached to this Agreement. The method, manner and means by which the Services will be performed by Contractor shall be set forth in the Agreement. The entire Agreement entered into by JHIE and any Contractor is inclusive of all documents associated with JHIE RFP number 13-03DCO and the Offeror’s response to the RFP. In the event there is any discrepancy between any of these Agreement documents, the following order of documents governs so that the former prevails over the latter:

  • Agreement
  • Request for Proposal
  • Specifications or Offeror’s response to Scope of Work
  • Definitions & Bidding conditions
  • Offeror’s Proposal
  • Special Instructions

In addition, deliverables to be produced pursuant to the performance of the Services (the “Deliverables”) and the process for submission, review and acceptance thereof is defined herein. All applicable timelines and status reporting obligations for performance of Services and production of Deliverables shall be set forth herein. The prior written approval of JHIE will be required for any extension or change in the Services to be provided, and any such change shall be reflected in an amended Scope of Services that shall be subsequently attached to this Agreement.

Recitals

  1. JHIE desires to engage a Contractor to provide related Services as set forth in theStatement of Work (“SOW”) to enable JHIE to achieve specific business and mission objectivesas defined in this Agreement.
  2. Contractor is the successful Proposer to the RFP and JHIE desires to engage Contractor to perform the Services.
  3. Contractor desires to perform the Services for JHIE.

In consideration of the foregoing Recitals and the mutual terms and conditions set forth below, JHIE and Contractor agree as follows:

  1. SCOPE OF SERVICES
  2. Performance
  3. Responsibilities of Contractor. Contractor shall perform the Services in accordance with the SOW and its response to the RFP.
  4. Responsibilities of JHIE. If this Agreement requires JHIE to provide any resources, andJHIE fails to provide the requisite quality or quantity of such resources, or fails to provide such resources in a timely manner but for a period not to exceed 30 calendar days, Contractor’s sole remedy shall be an extension of the applicable delivery dates corresponding to the delay caused by JHIE’s failure. If JHIE’s failure to provide such resources exceeds 30 calendar days and Contractor can show to the reasonable satisfaction of JHIE that the JHIE’s failure has resulted in an unavoidable increase in the cost of the Services required for the SOW, then Contractor shall be entitled to recover from JHIE the reasonable amount of such increased costs. Contractor’s right to delay applicable delivery dates may be exercised only if Contractor provides JHIE with reasonable notice of JHIE’s failure and Contractor uses commercially reasonable efforts to perform notwithstanding JHIE’s failure to perform.
  5. Delivery and Review of Deliverables
  6. Contractor shall deliver Deliverables and complete Milestones as set forth in the SOW by no later than the date or dates set for delivery in the SOW. Delivery dates, both critical and non-critical, are set forth in the SOW and are subject to JHIE performing its responsibilities in a timely manner.
  7. Contractor shall provide written notice to JHIE upon delivery of a completed Deliverable to JHIE. By no later than 20 calendar days after receipt of such notice JHIE shall determine whether the Deliverable meets Acceptance Criteria set forth in the Agreement including the SOW. If JHIE determines that the Deliverable meets, in all material respects, the Acceptance Criteria, JHIE shall notify Contractor of JHIE’s Acceptance. JHIE’s Acceptance of any Deliverable will not be construed as a waiver of JHIE’s rights under thisAgreement for any defect that was not discovered, or reasonably could have been discovered, by JHIE in reviewing such Deliverable.
  8. If the JHIE determines that a Deliverable does not meet the Acceptance Criteria, in all material respects, JHIE shall notify Contractor in writing of JHIE’s rejection of the Deliverable, and describe in reasonable detail in such notice the JHIE’s basis for rejection of the Deliverable. Upon receipt of notice of non-acceptance, Contractor shall, within a 15 calendar day period, modify or improve the Deliverable at Contractor’s sole expense so that the Deliverable meets the Acceptance Criteria, in all material respects, and notify the JHIE in writing that it has completed such modifications or improvements and re-tender the Deliverable to JHIE. JHIE shall thereafter review the modified or improved Deliverable within 15 calendar days of receipt of the Contractor’s delivery of the Deliverable. Failure of the Deliverable to meet the Acceptance Criteria, in all material respects, after the second submittal shall constitute a default by Contractor. In the event of such default, JHIE may either: (i) notify Contractor of such default and instruct Contractor to modify or improve the Deliverables as set forth in this Section, or (ii) notify Contractor of such default and instruct Contractor to cease work on the Deliverable, in which case Contractor shall refund to JHIE all amounts paid by JHIE related to such Deliverable. Such refund shall be in addition to, and not in lieu of, any other remedies JHIE may have for Contractor’s default.
  9. Acceptance Testing
  10. User Acceptance Testing. Contractor shall provide written notice to JHIE upon complete customization, installation and configuration of the hardware, and data center, and support operations as set forth in Exhibit A. JHIE will test the entire System (“User Acceptance Testing”) via the Acceptance Testing activities set forth in Exhibit A in order to determine if it meets, in all material respects, the Acceptance Criteria. If the System fails to conform to or perform according to the Acceptance Criteria, JHIE will notify Contractor, in writing, specifying the manner in which it fails to comply. Upon receipt of such written notice, Contractor shall correct any such failure within ten (10) business days from the date of receipt of JHIE’s notice or such later date as JHIE shall specify in its notice, and shall resubmit the corrected System to JHIE for retesting according to this section, all at no additional charge to JHIE.
  11. Acceptance Period. Upon completion of User Acceptance Testing, JHIE shall use the System for the transformation and processing of System data in a live production environment for a period of 90 calendar days. At the end of such 90 day period, there shall be no known unresolved System Errors, as communicated in writing from JHIE to Contractor. For the purpose of this Section 2.4.3, "unresolved System Errors" are errors that prevent the System from meeting the Acceptance Criteria of this Agreement. If the System materially fails to conform to or perform in the Acceptance Criteria, JHIE will notify Contractor, in writing, specifying in reasonable detail the manner in which it fails to comply. Upon receipt of such written notice, Contractor shall correct any such failure within five (5) business days from the date of receipt of JHIE’snotice or such later date as JHIE shallspecify in its notice, and shall resubmit the System to JHIE for reevaluation, all at no additional charge to JHIE. Thereafter, if the System fails to conform or perform as required, JHIE may allow Contractor to continue to correct the System or JHIE may declare a material breach of this Agreement by Contractor.
  12. Final Acceptance. “Final Acceptance” of the System will occur when, the following events have occurred or conditions exist:
  13. JHIE has notified Contractor that the System meets all Acceptance Criteria and all Acceptance Tests have been successfully completed for the System;
  14. All System database inventories and configuration files are complete and operating correctly;
  15. All items of System Documentation are complete, inventoried and accepted by the JHIE. Contractor shall provide all text Documentation both in hard copy and in an electronic format as specified in the SOW;
  16. All Documentation, Software, configuration data, and System configuration information are complete and are stored and controlled under a configuration management system as specified in the SOW; and
  17. Contractor has delivered all source code and Documentation, as applicable, in accordance with the terms of the Agreement including the SOW.
  18. CONTRACTOR’S PERSONNEL
  19. Project Manager. Contractor shall designate one of the Key Persons as Project Managerfor the Services. The Project Manager shall be familiar with JHIE’s business objectives of this Agreement. The Project Manager will participate with JHIE in periodic review sessions and will provide at JHIE’s request detailed progress reports that identify completed tasks and the status of the remaining Services as set forth in the SOW.
  20. Contractor’s Employees and Subcontractors. Contractor shall not use subcontractors toperform the Services unless specifically authorized to do so by JHIE. Contractor represents that any employees assigned to perform the Services, and any authorized subcontractors performing the Services shall perform the Services in accordance with the warranties set forth in Section 7 of this Agreement.
  21. Key Persons. Contractor acknowledges and agrees that it is JHIE’s selected Contractor, andis entering into this Agreement because of the special qualifications of Contractor’s Key Persons identified in the Staffing Plan. Contractor’s Key Persons shall not delegate performance of the powers and responsibilities they are required to provide under this Agreement to other Contractor employee(s) or subcontractor(s) employees without first obtaining the written consent of JHIE. Further, Contractor shall not re-assign or transfer the Key Persons to other duties or positions such that the Key Persons are no longer available to provide the JHIE withtheir expertise, experience, judgment, and personal attention, without first obtaining the JHIE’s prior written consent to such re-assignment or transfer, which JHIE shall not unreasonably withhold or delay. Notwithstanding the foregoing, Contractor may replace Key Persons without JHIE’s consent in the event any Key Persons are no longer available due to death, illness or termination of employment with Contractor. In the event Contractor requests that the JHIE approve a re-assignment or transfer of the Key Persons, or if Contractor must replace Key Persons due to death, illness or termination of employment with Contractor, the JHIE shall have the right to interview, review the qualifications of, and approve or disapprove the proposed replacement(s) for the Key Persons. Any such replacement shall have substantially equivalent or better qualifications than the Key Person being replaced. Any replacement personnel approved by JHIEshall thereafter be deemed a Key Person for purposes of this Agreementand the Staffing Plan shall be deemed amended to include such Key Person.
  22. TERM

This Agreement shall be effective on the Effective Date, and shall terminate on December 31, 2016, unless this Agreement has extended or terminated earlier in accordance with its terms.

  1. COMPENSATION
  2. Maximum Payment Amount. Notwithstanding any other provision of this Agreement to thecontrary, the maximum, not-to-exceed compensation that JHIE will pay to Contractor is _____Dollars ($ ) (the “Maximum Not-To-Exceed (NTE) Compensation”), which includes payment for any allowable expenses for which Contractor may request reimbursement under this Agreement.
  3. Payments. JHIE shall pay Contractor for work performed based on the Deliverables and Milestones schedule defined in Exhibit A.
  4. Retention. JHIEshall be permitted to hold back an amount (the “Services RetentionAmount”) equivalent to the milestone payment amount invoiced and payable by JHIE to Contractor for the Deliverables and Milestones defined in Exhibit A prior to Final Acceptance. JHIE shall pay the then-accrued Services Retention Amount to Contractor within 30 calendar days following Final Acceptance.
  5. Expenses. JHIE will not pay or reimburse any expenses incurred by Contractor duringthe completion of the Services except as authorized in Exhibit A.
  6. Invoices. Contract shall submit all invoices upon based on the terms defined in Exhibit A. If payment of expenses is authorized under this Agreement, the Contractor shall itemize and explain all authorized expenses for which reimbursement is claimed. JHIE shall pay Contractor not more than once each month upon Contractor’s submission of a detailed invoice, which includes the following information:
  • Contractor name, address and contact information of person authorized to discuss the invoice
  • Invoice date and invoice number
  • Contract number
  • Contractors employer identification number (EIN)
  • Description of deliverables and milestones invoiced and date of acceptance by JHIE
  • Line item and total invoice amounts
  • Terms of Payment
  • Contractor shall submit invoices to JHIE’s Authorized Representative. JHIE will have the right to review each such invoice for compliance with the requirements.
  • Limit on Payments. Contractor shall not submit invoices for, and JHIE shall not pay,any amount in excess of the Maximum Not-To-Exceed Compensation. If this maximum amount is increased by amendment of this Agreement, pursuant to Section 16.16 “Amendments’, the amendment must be fully effective before Contractor performs Services or delivers goods subject to the amendment. No payment will be made for any Services performed or goods delivered before the Effective Date or after termination of this Agreement.
  • Payment Method. Payments under this Agreementwill be made by check, unless otherwise mutually agreed by both parties.
  1. OWNERSHIP RIGHTS AND LICENSE IN DELIVERABLES
  2. Ownership of Works and Data. Each party owns its works, intellectual property and confidential information created prior to the Effective Date of this Agreement. Enhancements to Contractor’s pre-existing Software such as updates, releases, versions generally provided to Contractor’s customers shall be owned by the Contractor. Any customization, reports or programming changes to existing Software provided by Contractor which specifications were provided by JHIE and all Tailoring shall be owned by JHIE and shall be deemed “work for hire” under the Copyright Act. JHIE shall have full and unrestricted access and control over all such changes. Should the parties decide to jointly develop software or any technology or intellectual property based on mutually agreed to specifications, (i) they shall each own such jointly developed works with full right to exploit them for internal use, (ii) they shall enter into an agreement upon mutually agreed to the terms and conditions to govern the commercial use of such jointly developed works.
  3. As between JHIE and Contractor, all patient data, shall be owned and controlled by the source of the data (i.e., JHIEs member organizations); other forms of data shall be owned by JHIE. Contractor shall not prohibit access to or impose any restriction (technical, contractual or otherwise) on the use of such data. To the extent that JHIE has configured or tailored the system using content specialized for JHIE, the special features used by JHIE or those containing JHIE’s confidential information shall be owned by JHIE.
  4. Contractor Intellectual Property. Contractor retains ownership of all Contractor IntellectualProperty pursuant to the Services performed under this Agreement. Contractor grants JHIE a license to Contractor Intellectual Property as set forth in the Subscription Agreement.
  5. Intellectual Property Infringement. Contractor shall defend and indemnify JHIE and hold JHIE harmless against all claims of infringement related to the Software. JHIE shall promptly notify Contractor of any infringement claim. Contractor shall maintain control of the defense and all settlement negotiations.
  6. Contractor’s Cures for Infringement. This provision contains JHIE’s exclusive remedy and Contractor’s sole liability with regard to any claim of infringement related to the Software or other actions of Contractor. If use of the Software or actions of the Contractor by JHIE is the subject of a claim for infringement; then Contractor, at its option and expense, may either:
  7. Procure for JHIE the right to continue using such Software,
  8. Replace or modify such Software, without substantially diminishing functionality, so that it becomes non-infringing, or
  9. Refund an amount paid for Software to JHIE
  10. Third Party Software and Hardware Infringement. Contractor shall assign to the JHIE all permitted indemnities against infringement of the Third Party Software and Hardware upon the intellectual property rights of any third party.
  11. Work Product
  12. Generally. Except as specified herein, Contractor owns all Work Product. Contractor grants JHIE a perpetual non-exclusive, irrevocable, royalty-free, world-wide license to use, copy, display, distribute, transmit and prepare derivative works of Work Product, and to authorize others to do the same on JHIE’s behalf.

Documentation. If Documentation has been developed and delivered by Contractor as a Deliverable to JHIE under this Agreement, and such Documentation have been funded by JHIE, then to the extent that the Documentation does not include pre-existing materials generally licensed by Contractor, then JHIE shall have all right, title, and interest (including ownership of copyright and trademark) to such Documentation.

5.8Ownership. Contractor warrants that it is the sole owner of or rightful licensee to all intellectual property rights in the Contractor Software and that Contractor has the full power, right and authority (including all necessary intellectual property rights) to license and deliver copies of the Software and to deliver the third party software and hardware specified in this Agreement to JHIE free from any liens and encumbrances, except as described in this Agreement. There are no claims or threats of claims against Contractor with respect to its right to license, sublicense, use, sell, re-sell or distribute any product in this agreement.

5.8.1Software. Contractor warrants the following for so long as JHIE (i) subscribes to the Product / Software Support Services or (ii) subscribes to the Remote Processing Services (Warranty Period):