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Res 030-2014 3/4/2014 RESOLUTION NO. 30-2014 Resolution selecting Advanced Business Software, LLC, as the entity providing the offer that is most advantageous to the City for a Public Health Information Management System, and authorizing the City Manager to execute a contract with said offeror in an amount of approximately $21,000 for installation, data conversion services, and on-site training plus a subscription fee of $63,000 per year ($36,750 for remainder of current fiscal year) WHEREAS, the City of Wichita Falls properly advertised and requested proposals for a public health information management system; WHEREAS, the City evaluated the proposals in accordance with Chapter 252 of the Texas Local Government Code; and WHEREAS, the City Council finds that this proposal process complied with Chapter 252 of the Texas Local Government Code and Advanced Business Software, LLC, provided the offer that is most advantageous to the City. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF WICHITA FALLS, TEXAS, THAT: Advanced Business Software, LLC, is selected as the entity providing the proposal that is most advantageous to the City for a Public Health Information Management System, and the City Manager is authorized to execute the attached Software Agreement for the Health Department with the offeror in an amount of approximately $21,000 for installation, data conversion services, and on-site training plus $63,000 per year ($36,750 for remainder of current fiscal year), with such changes to said agreement as are approved by the City Attorney. PASSED AND APPROVED this the 4th day of March, 2014. ______________________________ M A Y O R ATTEST: ____________________ City Clerk SOFTWARE AGREEMENT This Software License Agreement (this “Agreement”), is made as of March 04, 2014 (the “Effective Date”) between Advanced Business Software, LLC (ABS) located at 10921 Broken Wheel Road, Lakeside, California 92040 and the Wichita Falls – Wichita County Public Health District/City of Wichita Falls with its principal location at 1300 Seventh St, Wichita Falls, Texas 76301 (“City”). ABS and City may each be referred to individually as a “Party” and collectively as the “Parties.” 1. RECITALS. This Agreement is made with reference to the following recitals of essential facts: 1.1. Advanced Business Software, LLC (“ABS”) with offices at 10921 Broken Wheel Road, Lakeside, California 92040 has developed its Public & Environmental Health Information Management System, a scalable and configurable web-based software system that addresses a broad range of public health information management needs in a single integrated environment (the “Licensed Software”). 2. LICENSE. Subject to the terms and conditions of this Agreement, ABS grants the City a limited, non-exclusive, non-assignable, royalty-free, license to use and display the Licensed Software solely for the purpose of meeting City’s requirements for record-keeping and reporting imposed by state and federal law. The Licensed Software shall be installed and hosted on the ABS server farm. 3. LICENSE EXCLUSIONS. 3.1. Exclusions. City shall use the Licensed Software solely for City's own internal operations. City shall not: (i) Copy the Licensed Software; (ii) Cause or permit reverse compilation, reverse engineering, or disassembly of the Licensed Software; (iii) Create derivative works of the Licensed Software; (iv) Assign, distribute, sublicense, disclose, market, rent, lease, or otherwise transfer the Licensed Software to any person or entity, or permit any person or entity to have access to the Licensed Software by means of a remote computing, networking, batch processing, software as a service, or time sharing arrangement to any third party; (v) Transfer or use the Licensed Software outside the state of Texas; or (vi) Use the Licensed Software for any purpose or application other than as permitted in the Documentation. 3.2. Source Code. Except for the Escrow Copy to the limited extent set forth in Section 6: (i) the Licensed Software is provided to the City in executable code only; and (ii) the license granted to City does not include access to or any copies of the source code for the Licensed Software. 4. FEES AND PAYMENT TERMS. 4.1. Fees. City shall pay ABS for services provided by ABS and reimbursable costs and expenses incurred by ABS as specified in the Fee and Payment Schedule attached as Exhibit A. Any custom programming and coding, and any other agreed upon additional services, shall be provided at the time and materials rates of $125.00 an hour. 4.2. Payment Terms. ABS will be responsible for invoicing and collecting payment of City Fees from City (together with applicable governmental fees, assessments, or taxes, if any) on a quarterly basis. All amounts are due within thirty (30) days after receipt by City of ABS’s invoice. In addition to all other remedies available to ABS under this Agreement or applicable law, any amount not received by ABS when due will accrue interest at the lesser of one and one- half percent (1.5%) per month or the maximum interest rate allowed by law until paid in full. 5. SUBSCRIPTIONS. 5.1. City License. City acknowledges that end users may be required to execute ABS’s online end-user license agreement upon the first access to the Licensed Software and after an update. ABS will be responsible for enabling City’s user access to the Licensed Software. City’s access to the Licensed Software will be limited to the terms of the City License and may be terminated by ABS in accordance with the terms of the City License. 5.2. Updates. ABS may modify or update the Licensed Software (including material modifications to, or discontinuations of, its functionality, features and other aspects) at any time, at its sole and absolute discretion. ABS will provide prior notice of such modifications or discontinuations to the City. As provided in Section 7.3, all such modifications and updates will be owned exclusively by ABS. 5.3. Training and Service Issues. (a) ABS will be responsible for providing all demos, training, installation, implementation and user support to the City. ABS shall provide the City with the number of training sessions set forth in the Payment Schedule. The City shall reimburse ABS for all reasonable, actual travel and living expenses if training is scheduled for any location other than ABS's training facility. Unless otherwise stated in the Payment Schedule, the City must use the training sessions within one (1) year from Acceptance. (b) The parties understand and agree that the support services will be undertaken as generally set forth in the attached Exhibit B. Any disputes as to the division of services to be provided to City will be discussed and resolved in good faith. (c) Any custom programming and coding, including conversion of City’s data and the creation of appropriate interfaces for integrating City’s data with the Licensed Software and any other agreed upon additional services, shall be provided and paid for on a time and materials basis. 6. ESCROW. 6.1. Escrow Copy. ABS has agreed to deposit with an escrow agent mutually agreed upon between ABS and the City (the “Escrow Agent”), an Escrow Copy of the Licensed Software. The “Escrow Copy” for purposes of this Section 6 will be the source code from which ABS’s executable copy of the Licensed Software was created, instruction materials and related documentation for the Licensed Software (the “Documentation”). ABS will deposit with the Escrow Agent updated copies of the Escrow Copy including all updates, upgrades, patches, bug fixes, new releases, new versions, revisions and improvements so that at all times the Escrow Copy will functionally correspond with the Licensed Software in use by City. 6.2. Release of Escrow Copy. The Escrow Copy will be provided to the City, if the City has complied with the terms of its Agreement with ABS, to allow the City the continued benefit of the Licensed Software in the event ABS commences proceedings for the liquidation and distribution of all of its assets or any similar proceeding designed to result in a supervised winding up of ABS’s affairs under federal or state laws. 6.3. Caveat. City understands and agrees that by providing access to the Escrow Copy and Documentation, ABS is not transferring ownership of any rights in or to the Licensed Software or Documentation to the City, or expanding the license granted in Section 2 above. City may use the Escrow Copy solely to maintain and support the Licensed Software, and only for so long as the condition giving City access to the Escrow Copy remains. The Escrow Copy is and will remain ABS’s Confidential Information and is subject to the restrictions on disclosure set forth in Section 13. 7. PROPRIETARY AND INTELLECTUAL PROPERTY RIGHTS. 7.1. Ownership. ABS and its third-party providers (if any) retain title to and ownership of the Licensed Software and the accompanying Documentation, including all copies in whatever form, whether supplied by them or made by the City. City acknowledges that the Licensed Software belongs and is proprietary to ABS or its third-party providers, as applicable, and shall at all times remain their property. A subscription to the Licensed Software is only the transfer of a right to access the Licensed Software, and does not transfer any ownership interest in the Licensed Software. The license granted by this Agreement does not give City any ownership interest in the Licensed Software, but only the right to use the Licensed Software under the specified terms. 7.2. Reservation of Rights; Restrictions. City’s rights to the Licensed Software are limited to those expressly granted in this Agreement, and are subject to all terms, conditions, limitations, and restrictions of this Agreement. City: (i) will comply with all reasonable policies established by ABS from time to time to protect ABS’s rights, title, and interests in and to the Licensed Software; (ii) will not challenge, or assist or encourage any City or third party to challenge ABS’s ownership of (or the validity or enforceability of ABS’s rights, titles, and interests in and to) the Licensed Software; and (iii) will not attempt to, or assist, or encourage any person or entity to design around the Licensed Software. No license, right or interest in or to any ABS trademark, trade name, or service mark is granted hereunder, and the City may not use any such trademark, trade name, or service mark for any purpose. 7.3. Ownership of Modifications. The Licensed Software may include certain modifications made by ABS in accordance with City’s specifications, or by ABS based on its own determination as to the benefit of such modifications. ABS shall retain exclusive ownership of all such modifications, and the City hereby assign any and all rights either party may have in and to such modifications to ABS. Notwithstanding the fact that the City is not authorized to, and shall not, make improvements to or create derivative works of the Licensed Software, any such improvements or derivative works created by or on behalf the City shall be owned exclusively by ABS. The City hereby assigns any and all rights City may have in and to such modifications, improvements and derivative works to ABS. 8. CITY’S ADDITIONAL OBLIGATIONS, REPRESENTATIONS, & WARRANTIES. 8.1. Information. The City shall, as reasonably requested by ABS, provide ABS with specific and detailed information about City’s work flow, procedures, transaction volumes and details, and current and historical data solely as they relate to the applications of the Licensed Software. Confidentiality of all such information shall be maintained by ABS, provided that such information may be accessible by ABS for the purpose of improvement and upgrades to the Licensed Software. 8.2. Access. The City shall afford ABS reasonable access, both during and after City’s regular business hours, to City’s data processing operating environment and systems. City understands that the installation protocols for the Licensed Software have been developed by ABS based on the City’s existing hardware configurations, and City agrees to maintain those configurations throughout the installation and implementation process. 8.3. Coordination. The City shall designate a project manager and an information technology team to coordinate and work with ABS in installation and implementation of the Licensed Software, including testing of the Licensed Software following installation. 8.4. Testing. ABS strongly recommends that pending thorough testing under live production conditions of all individual modules and subassemblies comprising the Licensed Software and of the Licensed Software as a whole, the City operates on a parallel basis, continuing its existing processing operations and maintaining a back-up system and duplicate files of all data. 8.5. Representations and Warranties. City represents and warrants that: (i) City has full power and authority to execute this Agreement and perform hereunder; (ii) this Agreement will not cause or require the City to breach any obligation to, or agreement or confidence with, any other person or entity; (iii) this Agreement has been duly authorized by City and is fully enforceable in accordance with its terms; (iv) City will comply with all applicable laws, regulations, and orders in the utilization of the Licensed Software. 9. LIMITED WARRANTY; DISCLAIMER. 9.1. Limited Warranty. ABS represents and warrants that ABS has full power and authority to execute this Agreement and perform hereunder; (ii) the services provided by ABS including but not limited to, Support Services, shall be performed in a timely, competent, and professional manner; and (iii) there is no action, suit, proceeding or material claim or investigation pending or threatened against ABS, in any court or by or before any Federal, state, municipal, or other governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, or before an arbitrator of any kind, which, if adversely determined, might adversely affect the Licensed Software or restrict ABS ability to consummate the transactions contemplated hereby or continue its obligations hereunder 9.2. Disclaimer. ABS does not warrant that the Licensed Software is or will be error- free, and City should anticipate that, as with implementation of any highly sophisticated, integrated software applications package, the “roll-out” process will entail discovery and debugging in the ordinary course of software errors or nonconformities. ABS will respond to software errors involving the Licensed Software in accordance with the escalating order of priorities set forth in the Support Services Terms and Conditions attached as Exhibit C. Repairs may include temporary workarounds or patches, as circumstances warrant. 9.3. Limitations. ABS’s warranty is contingent on proper use of the Licensed Software by City in accordance with this Agreement, the Documentation, or as directed by ABS in writing. Warranty coverage does not apply to Licensed Software which has been used in a manner contrary to this Agreement, the Documentation, or as directed by ABS in writing. THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION 9 ARE THE ONLY WARRANTIES MADE BY ABS WITH RESPECT TO THE LICENSED SOFTWARE. ABS EXPRESSLY DISCLAIMS ANY OTHER WARRANTIES, EXPRESS OR IMPLIED OR ARISING BY CUSTOM OR TRADE USAGE, WITH RESPECT TO THE LICENSED SOFTWARE OR ANY OTHER MATTER INVOLVING OR ARISING OUT OF THIS AGREEMENT, INCLUDING THE PROVISION OF SUPPORT SERVICES. IN PARTICULAR, BUT WITHOUT LIMITATION, ABS DISCLAIMS ANY WARRANTY OF TITLE, NON-INFRINGEMENT, ACCURACY, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTY BASED ON TRADE USAGE, COURSE OF DEALING OR CONDUCT. ABS’S EXPRESS WARRANTIES WILL NOT BE ENLARGED, DIMINISHED OR AFFECTED BY, AND NO OBLIGATION OR LIABILITY WILL ARISE OUT OF ABS RENDERING TECHNICAL OR OTHER ADVICE OR SERVICE IN CONNECTION WITH THE LICENSED SOFTWARE. 10. LIMITATIONS OF LIABILITY. WILL BE LIMITED TO THE AMOUNT OF FEES RECEIVED BY ABS FROM CYTY UNDER THIS AGREEMENT. 11. Support Services Terms And Conditions. Support services shall be provided to the City by ABS in accordance with the Support Services Terms and Conditions attached as Exhibit C. 12. NONDISCLOSURE OBLIGATIONS. 12.1. Confidentiality. Each Party (in the case, “Receiving Party”) acknowledges that it may receive Confidential Information (as defined in Section 13.2 below) of the other Party (in this case, “Disclosing Party”). Receiving Party shall treat the Licensed Software and related Documentation, license terms and support services fees, together with any other information contained in this Agreement, the License Schedule or any License Schedule Supplement, as Confidential Information. Receiving Party will not directly or indirectly disclose any Confidential Information. Receiving Party will not use any Confidential Information except as is necessary in connection with exercising its rights and performing its obligations under this Agreement. Receiving Party will treat all Confidential Information with at least the same degree of care as Receiving Party accords to Receiving Party’s own confidential information, but in no case less than reasonable care. Receiving Party will carefully restrict access to Confidential Information to those of its employees: (i) who clearly need such access in order to exercise Receiving Party’s rights and perform Receiving Party’s obligations under this Agreement, and (ii) who are under a separate written contractual or legal obligation to Receiving Party to respect Receiving Party’s obligations under this Agreement. Receiving Party will immediately give notice to Disclosing Party of any unauthorized use or disclosure of Confidential Information and will cooperate with Disclosing Party to stop and mitigate the damages from such use or disclosure. 12.2. “Confidential Information” means all trade secrets, confidential and proprietary information of Disclosing Party regardless of whether any such information is expressly identified as confidential or proprietary, or is reduced to writing, or is conceived, originated, discovered or developed, in whole or in part, by Disclosing Party either prior to, during, or after the term of this Agreement. Confidential Information includes, without limitation, Disclosing Party’s information: (i) of a technical nature, such as methods, know-how, specifications and all source code and other code and, as to City, information concerning the Licensed Software and Documentation not generally known to the public; and (ii) of a business and commercial nature, such as proposals, research and development activities, or financial information. Except as otherwise expressly provided in this Agreement, as between the Parties, Disclosing Party will retain exclusive ownership of all right, title, and interest in and to the Confidential Information. 12.3. HIPAA. The parties hereto agree to abide by the Health Insurance Portability and Accountability Act (“HIPAA”) as applicable and follow confidentiality requirements of 42 CFR Part 2 and other applicable requirements, and to consult and cooperate with one another to assure appropriate and consistent handling of confidential data. 12.4. Exclusions. Confidential Information shall not include information that: (i) is already in the possession of or otherwise known to Receiving Party prior to receiving it pursuant to this Agreement, unless the earlier disclosure was subject to a corresponding duty of confidentiality, (ii) is already generally known or subsequently becomes generally known within the industry or by the general public, other than by disclosure in violation of this Agreement, or (iii) is required to be disclosed by a court, governmental agency, or authority, subject to the remainder of this paragraph. If Receiving Party is requested or required by any court, governmental agency, or authority to disclose any of the Confidential Information, Receiving Party will provide Disclosing Party with immediate notice of such request or requirement prior to such disclosure. Disclosing Party may then, in its discretion, seek appropriate protective relief from all or part of such request or requirement. Receiving Party will cooperate with Disclosing Party in attempting to obtain, at the expense of Disclosing Party, any protective relief that Disclosing Party chooses to seek. 13. TERM AND TERMINATION. 13.1. Term and Renewal. Unless earlier terminated as provided in this Section 14, this Agreement will commence upon the Effective Date and will continue in effect for five (5) years. This Agreement will thereafter continue in effect for successive five (5) year renewal terms unless terminated as of the end of the initial term or any renewal term by written notice given by the terminating Party to the other Party not later than ninety (90) days prior to the expiration of the term then in effect. 13.2. Termination for Default. If either Party defaults under any of the material terms or obligations under this agreement, the non-defaulting Party shall have the right to give the defaulting Party notice specifying the default and circumstances surrounding the default. If the defaulting Party fails to cure the noticed default within thirty (30) days after receipt of said notice, the non-defaulting Party may terminate this Agreement immediately upon written notice to the defaulting Party. 13.3. Events Upon Termination.. Within fifteen (15) days after termination of this Agreement, the City shall either return or destroy all copies of the Licensed Software and Documentation, and shall delete or destroy all portions or excerpts of the Licensed Software or Documentation contained, commingled or incorporated in any form with City’s other information, including electronic data files and magnetically encoded media, such that neither City nor any of City’s affiliates shall retain any of the Licensed Software or Documentation in whole or in part. Upon request, City shall certify such complete return or destruction in writing to ABS. 13.4. Termination for Convenience Either party may terminate this agreement at any time by giving 30 days written notice to the other party. The right to terminate this agreement for convenience is cumulative of all rights and remedies which exist now or in the future. Upon receiving or delivering the notice, ABS shall, unless the notice directs otherwise, immediately discontinue all services under this agreement 14. GENERAL. 14.1. Notices. Notices given pursuant to this Agreement must be in writing. They shall be deemed to have been duly given: (i) when transmitted, if sent by fax with confirmed receipt, followed by a “hard” copy delivered by any other method specified in this provision; or (ii) one (1) business day after being deposited for next-business day delivery with Federal Express or other national overnight courier service providing delivery tracking and confirmation. Notices shall be given to the addresses specified at the beginning of this Agreement, unless changed by a notice from one party to the other given by any of the methods specified in this provision. 14.2. Counterparts. This Agreement and its related documents may be signed by fax or electronic counterpart, which when transmitted to the other party shall have the same effect as an original ink signature. 14.3. Enforceability. If any provision of this Agreement is held invalid or unenforceable for any reason, the remainder of the provision shall be amended to achieve as closely as possible the economic effect of the original term and all other provisions shall continue in full force and effect. 14.4. Waiver. The failure by either party to assert or exercise any right or remedy under this Agreement shall not otherwise act to waive the future assertion or exercise of the same or any other right or remedy. 14.5. Assignment; Successors and Assigns. This Agreement and any rights or obligations hereunder may not be assigned or delegated by City (including without limitation by contract or by operation of law) without the prior written consent of ABS, which consent may be withheld, conditioned, or delayed in ABS’s sole and absolute discretion. Subject to the preceding sentence, this Agreement will be binding upon, and will inure to the benefit of, the successors and assigns of each Party. 14.6. Relationship of the Parties. The relationship contemplated by this Agreement does not constitute, and may not be construed as, a partnership or joint venture between the Parties. Neither Party may bind the other Party, or perform any act or thing on behalf of the other Party. 14.7. Integration and Waiver. This Agreement constitutes the entire agreement between the Parties and is intended by the Parties to be a final expression of their understanding and a complete and exclusive statement of the terms and conditions of their agreement. This Agreement may be modified or rescinded only by a writing signed by the Parties or their duly authorized agents. The failure or delay of either Party in exercising any of its rights hereunder, including any rights with respect to a breach or default by the other Party, will in no way operate as a waiver of such rights or prevent the assertion of such rights with respect to any later breach or default by the other Party. 14.8. Choice of Law. This Agreement will be governed under the laws of the State of California, without regard to conflicts of law. The Parties irrevocably consent to the exclusive jurisdiction of the state and federal courts in Wichita County for the purpose of any action brought in connection with this Agreement. 14.9. Attorney Fees. In the event any action or proceeding (“Proceeding”) is initiated by a Party against the other Party to enforce, interpret, or otherwise obtain judicial or quasi- judicial relief in connection with this Agreement, each party will bear its own costs, expenses, actual attorney’s and expert witness fees, relating to or arising out of such Proceeding (whether or not such Proceeding proceeds to judgment). 14.10. Further Assurances. Each Party will execute all instruments and documents and take all actions as may be reasonably required to effectuate this Agreement. [Signature Page Follows Directly] SIGNATURE PAGE TO SOFTWARE LICENSE AGREEMENT Authorized representatives of ABS and City have signed this City Software License and Agreement below. Advanced Business Software, LLC City of Wichita Falls Frieda du Toit Darron J. Leiker Date: ____________________________ Date: ____________________________ Exhibit A FEES AND PAYMENTS SCHEDULE City intends to use the following EPHIMS modules: Clinical (EMR) Environmental Health Fiscal Management Laboratory Information Management 1. For the access to the modules, system hosting and maintenance, daily backups, user and technical support and database administration, the City agrees to pay ABS an annual subscription fee of $63,000.00 for years two, three, four and five. ABS agrees to not increase annual subscriptions cost more than 2.5% per year for year 5 and beyond. 2. For the seven month of year one starting 03/01/2014 and ending 09/30/2014, the City agrees to pay ABS a subscription fee of $36,750.00 3. For the installations of the system on the test and production environments the City agrees to pay ABS $6,000.00 4. For the data conversion and migration services the City agrees to pay ABS $10,000.00 5. For on-site training the City agrees to pay ABS $5.000.00 Travel, lodging and per diem charges are included in the training fees. Training for the Laboratory information Management will be provided at no cost to the City. Each of the trainings will include two sessions, one for the system administrator and power users, the other for end users. Training will be provided during the dates, times and at the locations determined by the City. A train-the-trainer approach is strongly recommended. 6. Standard interfaces such as data submissions to the State of Texas will be provided at no cost to the City. Cost estimates for custom interfaces will be submitted to the City. 7. Fees for additional services not set forth above will be based on the number of hours and an hourly rate of $125.00. PAYMENT SCHEDULE Description: Amount: PERIOD OF PERFORMANCE 03/01/2014 – 05/31/2014 Installation $6,000 Training $2,500 Data conversion and migration $10,000 System hosting, maintenance and user support $15,750 Total due and payable upon the execution of the contract: $34,250 PERIOD OF PERFORMANCE 06/01/2014 – 09/30/2014 Training $2,500 System hosting, maintenance and user support $21,000 Total due and payable on 06 /01/2014 $23,500 PERIOD OF PERFORMANCE 10/01/2014 –12/31/2014 System hosting, maintenance and user support Total due and payable on 10/31/2014 $15,750 PERIOD OF PERFORMANCE 01/01/2015 – 03/31/2015 System hosting, maintenance and user support Due and payable on 01/01/2015 $15,750 PERIOD OF PERFORMANCE 04/01/2015 – 09/30/2018 System hosting, maintenance and user support Total 14 payments @$15,750 each $220,500 Contract Total: $309,750 Exhibit B SUPPORT SERVICES TERMS AND CONDITIONS These are the Support Services Terms and Conditions (these “Service Conditions”) between ABS and City. For so long as City contracts with ABS for Support Services, these Service Conditions shall be considered an integral part of the Agreement, whose terms are incorporated here by reference. 1. Coverage. ABS shall provide Support Services to City EPHIMS including all modifications to the Software created by ABS. 2. Software Maintenance. The following maintenance releases will be issued by ABS: a. Fixes to software errors (“Errors”); b. Updates and maintenance releases. Maintenance releases contain proprietary and Confidential Information and are licensed to City as Licensed Software pursuant to the terms of the Software License Agreement. 3. Priority Level of Errors. ABS shall reasonably determine the priority level of Error, according to the following protocols: Priority A Errors: Errors that have a major impact on the operation or functionality of the Supported Software. Priority B Errors: Errors that have a moderate impact on the operation or functionality of the Supported Software. Priority C Errors: An Error that has a minor or negligible impact on the operation or functionality of the Supported Software. 5. New versions of the Licensed Software. New versions of the Licensed Software will be compatible with all ABS modifications. New versions are released annually and will be provided without additional charges. 6. User Support. Maximum initial response delay to a support request submitted on-line is 6 (six) hours. Maximum initial response delay to a support request submitted on the phone is 4 (four) hours. A response constitutes: An acknowledgement of the problem being reported; A problem resolution is provided with the initial response. Alternatively the time frame and conditions associated with full resolution will be included in the initial response. On-line support service: is provided 24x7 for problem reporting and other support needs. Standard Phone Support: via a toll free number is provided from 7 AM CST to 7 PM CST for troubleshooting, problem reporting and other support needs. Emergency Phone Support: can be utilized 24x7 for reporting of system problems that require immediate attention. 7. Database Maintenance and Administration. Database maintenance and administration include daily database backups, system setup changes and user access management. 8. Uptime guarantee: ABS guarantees 99.5 % system uptime on its server farm. ABS is not responsible for the system’s accessibility to the end users related to the status of the City network and the Internet availability. EXHIBIT C BUSINESS ASSOCIATE AGREEMENT WHEREAS, CITY entered into this Agreement on behalf of the Health Department which is a “covered entity” as defined in 45 CFR §160.103; and, WHEREAS, CITY has determined that Advanced Business Software. LLC., is a “business associate” of CITY as defined in 45 CFR §160.103; and, WHEREAS, the Standards for Privacy of Individually Identifiable Health Information at 45 CFR part 160 and part 164, subparts A and E require that an agreement be entered into specifying the ways in which Advanced Business Software, LLC is permitted to use and disclose protected health information which is provided by CITY; NOW, THEREFORE, Advanced Business Software, LLC., agrees to comply with and be bound by the following Business Associate Agreement provisions: 1. Definitions. Terms used, but not otherwise defined in this Exhibit shall have the same meaning as those terms in 45 CFR § 160.103 and § 164.501 as currently drafted or subsequently amended. 1.1 “Breach” has the meaning established in Section 13400 of HITECH. 1.2 “Business associate” means Advanced Business Software, LLC 1.3 “Covered entity” means CITY’s Health Department. 1.4 “HITECH” means the provisions of the Health Information Technology for Economic and Clinical Health Act enacted on February 17, 2009 as Title XIII of Division A and Title IV of Division B of the American Recovery and Reinvestment Act of 2009 (ARRA) (PL 111-5). 1.5 “Individual” has the same meaning as the term “individual” in 45 CFR §164.501 and shall include a person who qualifies as a personal representative in accordance with 45 CFR §164.502(g). 1.6 “Minimum necessary” means the standard as set forth in 45 CFR §164.502(b). 1.7 “PHI” means “protected health information” the term is defined in 45 CFR 164.501, limited to the information created or received by the business associate from or on behalf of the covered entity. 1.8 “Privacy Rule” means the Standards for Privacy of Individually Identifiable Health Information at 45 CFR part 160 and part 164, subparts A and E. 1.9 “Security Rule” means the Security Standards for the Protection of Electronic Protected Health Information at 45 CFR part 164, subpart C. 2. Permissive uses of PHI by business associate. 2.1 Services. Except as otherwise specified herein, business associate may make only those uses of PHI necessary to perform its obligations under the Agreement provided that such use or disclosure would not violate the Privacy Rule if done by the covered entity. All other uses not authorized by this Exhibit are prohibited, unless agreed to in writing by CITY. 2.2 Activities. Excepts as otherwise limited in this Exhibit, business associate may: 2.2.1 Use the PHI for the proper management and administration of the business associate and to fulfill any present or future legal responsibilities of business associate provided that such uses are permitted under State and Federal confidentiality laws. 2.2.2 Disclose the PHI to a third party for the proper management and administration of the business associate, provided that: 2.2.2.1 Disclosures are required by law; or 2.2.2.2 Business associate obtains reasonable assurances from the third party that the PHI will remain confidential and not be used or further disclosed except as required by law or for the purpose for which it was disclosed to that third party and the third party notifies the business associate of any instances of which it is aware in which the confidentiality of the PHI has been breached. 3. Obligations of business associate with respect to PHI. 3.1 With regard to use and disclosure of PHI provided by covered entity, business associate agrees not to use or further disclose PHI other than as permitted or required by this Exhibit or as required by law. 3.2 With regard to use and disclosure of PHI provided by covered entity, business associate further agrees to: 3.2.1 Use appropriate safeguards to prevent use or disclosure of PHI other than as provided for by this Exhibit; 3.2.2 Mitigate, to the extent practicable, any harmful effect that is known to business associate of a use or disclosure of PHI by business associate in violation of the requirements of this Exhibit; 3.2.3 Ensure that any agent, including a subcontractor, to whom business associate provides PHI agrees in writing to the same restrictions and conditions on use and disclosure of PHI that apply to business associate; 3.2.4 Make available all records, books, agreements, policies and procedures relating to the use or disclosure of PHI to the CITY for purposes of determining covered entity’s compliance with the Privacy Rule, subject to applicable legal privileges; 3.2.5 Make available, within seven (7) days of a written request, to covered entity during normal business hours at business associate’s offices all records, books, agreements, policies and procedures relating to business associate’s use or disclosure of PHI to enable covered entity to determine business associate compliance with the terms of this Exhibit C; 3.2.6 Provide access to PHI to the covered entity or the individual to whom PHI relates at the request of and in the time and manner chosen by covered entity to meet the requirements of 45 CFR § 164.524; 3.2.7 Make any amendments to PHI that covered entity directs pursuant to 45 CFR §164.526; 3.2.8 Provide, within fifteen (15) days of a written request, to covered entity such information as is requested by covered entity to permit covered entity to respond to a request by an individual for an accounting of the disclosures of the individual’s PHI in accordance with 45 CFR §164.528; and 3.2.9 Disclose to subcontractors, agents or other third parties, and request from covered entity, only the minimum PHI necessary to perform or fulfill a specific function required or permitted under the Agreement. 3.3 With regard to securing PHI provided by covered entity, business associate agrees to comply with the requirements for business associates established by HITECH, the Privacy Rule, the Security Rule and such modifications or additions to the Privacy Rule or the Security Rule as may be established by the Secretary of the U.S. Department of Health and Human Services. 3.4. With regard to breaches of PHI, business associate agrees to: 3.4.1. Notify covered entity immediately following discovery of a breach of PHI. Such notice shall be made telephonically to the following individual: Dr. Michelle McDonald, (520) 243-7910. 3.4.2. Within 5 working days of notice to covered entity, provide covered entity with written documentation, in a format acceptable to covered entity, of the breach and the identification of each individual whose PHI has been, or is reasonably believed by the business associate to have been, accessed, acquired, or disclosed during such breach; 4. Term and Termination. 4.1 Term. This Exhibit shall become effective on ……… and shall continue in effect until all obligations of the Parties have been met, unless the Agreement is terminated as provided in this Section 4 and as provided at A.R.S. 38-511. 4.2 Termination by CITY. Upon CITY’s knowledge of a material breach or violation of the terms of this Exhibit by business associate CITY, in its sole discretion, may: 4.2.1 Immediately terminate the Agreement; or, 4.2.2 Provide business associate with an opportunity to cure the breach or violation within the time specified by CITY. 4.3 Effect of termination. 4.3.1 Upon termination of the Agreement, for any reason, business associate agrees to return or destroy all PHI, if it is feasible to do so, and retain no copies thereof. Return or destruction shall occur within 60 days of the termination of the Agreement. Business associate shall, upon return or destruction of PHI, provide written attestation to CITY that all PHI held by business associate has been returned to CITY or has been destroyed. 4.3.2 Business associate further agrees to recover any PHI in the possession of its subcontractors, agents or third parties to whom business associate has provided PHI and return or destroy such PHI within the 60 days after termination of the Agreement. Business associate shall, upon return or destruction of PHI, provide written attestation to CITY that all PHI held by business associate has been returned to CITY or has been destroyed. 4.3.3 If return or destruction of PHI is not feasible, business associate shall: 4.3.3.1 Notify covered entity in writing of the specific reasons why the business associate has determined it is infeasible to return or destroy the PHI; 4.3.3.2 Agree to extend any and all protections, limitations, and restrictions contained in this Exhibit to business associate use and disclosure of any PHI retained after the termination of this Agreement; and 4.3.3.3 Agree to limit any further uses and disclosures to those allowed under the Privacy Rule for the purposes that make the return or destruction of PHI infeasible. 4.3.4 If it is not feasible for business associate to obtain PHI in the possession of a subcontractor, agent, or third party to whom business associate has provided PHI, business associate shall: 4.3.4.1 Provide a written explanation to the covered entity why the PHI cannot be obtained; 4.3.4.2 Require the subcontractor, agent, or third party to agree, in writing, to extend any and all protections, limitations, and restrictions contained in this Exhibit to the subcontractor’s, agent’s, or third party’s use and disclosure of any PHI retained after the termination of this Agreement; and 4.3.4.3 Require the subcontractor, agent, or third party to agree, in writing, to limit any further uses and disclosures to those allowed under the Privacy Rule for the purposes that make it infeasible for the business associate to obtain the PHI. 5. Miscellaneous. 5.1 Survival. Sections 4.3 and 2.1 solely with respect to PHI retained by the business associate in accordance with Section 4.3(c) and 4.3 (d), shall survive the termination of the Contract for services between CITY and Advanced Business Software, LLC. 5.2 Superseding Effect. Should the terms of this Exhibit conflict with the terms of the Agreement, the terms providing for more stringent protections of PHI shall apply. Nothing contained in this Exhibit shall be held to vary, alter, waive or extend any of the terms, conditions, provisions, agreements, or limitations of the Agreement other than as stated above in this Exhibit.