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2010-205s:\legal\our documents\ordinances\10Vire ems ordinance.doc ORDINANCE: 2010-205 AN ORDINANCE OF THE CITY OF DENTON, TEXAS AMENDING A CONTRACT WITH INTERMEDIX, INC. FOR PATIENT CARE REPORTING AND EMERGENCY MEDICAL SERVICE (EMS) BILLING FOR THE CITY OF DENTON FIRE DEPARTMENT BY AMENDING PROVISIONS RELATING TO THE TERMINATION OF COLLECTION EFFORTS AND COMPENSATION FOR SERVICES PROVIDED; AUTHORIZING THE EXPENDITURE OF FUNDS THEREFORE; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, On February 21, 2006 the City entered into a contract with Intermedix, Inc. for patient care reporting and emergency medical services (EMS) billing, and; WHEREAAS, the City Council of the City of Denton has determined that it is in the best interest of the City to amend the said contract by amending provisions relating to the termination of collection efforts and compensation for services provided; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The findings and conclusions set forth in the preamble of this ordinance are incorporated within the body of the ordinance. SECTION 2. Section 3.02 of the said contract, a copy of which is attached hereto as Attachment A and incorporated herein for all purposes, is hereby amended to read as follows: 3.02. Termination of Collection Efforts. If active collection efforts with respect to any account have been unsuccessful for 180 days or more, Intermedix shall have the right to terminate collection efforts with respect to such account and close the account as an unpaid debt. In addition, Intermedix may terminate or suspend collection efforts if Provider has supplied Intermedix with incomplete or inaccurate billing and/or patient information. In either event, Intermedix shall, upon termination or suspension, immediately forward to Provider all records of Intermedix collection efforts, at no charge to Provider, and cease all collection activity. Intermedix shall not be entitled to compensation under this Agreement with respect to accounts on which it has terminated collection efforts. SECTION 3 Section 4.01 of the said contract is hereby amended to read as follows: 4.01 Compensation. With respect to accounts collected during the Term and all accounts billed during the Term and collected after the Term, Indermedix shall be compensated and paid in accordance with the following schedule: a. 8.25% of the total amount collected on each account plus 1.25% as set forth in the Addendum to Service Agreement (Triptix Program) as set for in Attachment B to this agreement which is attached hereto and incorporated herein for all purposes. b. An additional 1.8% if payment is made by a credit card. s:\legal\our documents\ordinances\10\f1re ems ordinance.doc SECTION 4. All other provisions of the said contract, not amended herein, shall remain in full force and effect. SECTION 5. The City Manager is hereby authorized to execute any and all documents pursuant to this ordinance. SECTION 6 approval. This ordinance shall become effective immediately upon its passage and PASSED AND APPROVED this the day of '2010. ATTEST: JENNIFER WALTERS, CITY SECRETARY BY lid P APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: ATTACHMENT A SERVICE AGREEMENT This Service Agreement ("Agreement") entered into by and between Intermedix, Inc., a Texas corporation with offices at 16225 Park Ten Place Drive, Suite 805, Houston, Texas 77084, Facsimile No. (866) 724-5995 (hereinafter referred to as "Intermedix"), and the provider of emergency medical and or ambulance transportation services as identified and with the address as set out on the signature page hereto (hereinafter referred to as "Provider"), is as follows: Recitals WHEREAS, Provider operates, as part or all of its overall activities, an ambulance service that provides emergency and/or non-emergency medical and ambulance services, including emergency medical responses, other patient encounters and/or patient ambulance transportation (the "Services"); WHEREAS, Intermedix is a company in the business of administrating and collecting accounts receivables that arise from services like the Services; and NOW, THEREFORE, in consideration of the mutual promises herein contained, the parties hereto agree as follows: Article One Term and Termination 1.01 Term. The initial term of this Agreement shall be for a period of one year unless earlier terminated pursuant to Sections 1.02 or 1.03 (such initial term, together with all extensions thereof, shall be referred to herein as the "Term"). Unless notice is given before the end of the initial Term by either party that it does not wish to extend the relationship, at the end of the initial Term, this Agreement shall be automatically extended for additional, one-year periods. 1.02 Optional Termination. Notwithstanding any provision of this Agreement to the contrary, this Agreement may be terminated by either party, without cause and without liability (except for continuing obligations during such period), upon 60 days advance written notice to the other party. 1.03 Termination on Default. Either party may terminate this Agreement if (a) the other party is in default under the terms and conditions of this Agreement and (b) the default is not cured within 60 days of receipt of written notice specifying the default. 1.04 Obligations During Notice Period. During the 60-day notice periods specified in Sections 1.02 and 1.03, Intermedix shall be entitled to receive compensation for all accounts billed and/or collected with respect to the Services and shall be entitled, after the end of the termination period to receive compensation for, all amounts billed during the termination period but not collected until after the end of the termination period. Notwithstanding the foregoing, if the termination on default herein shall be "for cause", Intermedix agrees that it shall not make -1- HOU:35734M telephone calls to the citizens of the City of Denton upon receipt of the notice of default. For purposes of this section for cause means that Provider has terminated this Agreement, alleging as one or more of the reasons for termination that representatives of Intermedix have, in their dealings with the citizens of the City of Denton, (i) used threatening, harassing or abusive tactics in their collection efforts or (ii) engaged in behaviors that may otherwise violate Texas or federal laws, including those governing collection activities applicable to the activities undertaken by Intermedix. 1.05 Obligations on Termination. Upon termination of the Agreement, for whatever cause, Intermedix will immediately return all original medical records to Provider and may, at Intermedix's sole election, provide to Provider a digital copy on a CD-ROM of all paper records related to Provider. Article Two Billing, Remittances of Collections and Other Services 2.01 Service Provided; Exclusivity. During the Term, Intermedix shall be exclusively responsible for the billing and collection of (a) all charges and fees relating to the Services provided by Provider, including but not limited to private insurance, Medicare, Medicaid, and other governmental programs relating to (b) all patient encounters that occur during the Term and (c) all other patient encounters forwarded to Intermedix for collection (each set of such charges and fees for the Services related to an individual patient encounter may be referred to herein as an "account" or, collectively, the "accounts"). 2.02 Rate Schedule. Absent specific, written instructions by Provider to the contrary, Intermedix shall provide a rate schedule for the Services based on prevailing charges on a national and regional basis and adjusted, as requested, for Provider's demographic service area. Intermedix will use its reasonable best efforts to determine and use standard pricing for the Services. The rate schedule for the Services will be available via the Web Access System (as such term is defined below) in a format or accessible determined by Intermedix in its sole discretion. Provider may from time-to-time and at any time, upon 30 days written notice to Intermedix, instruct Intermedix to change one or more scheduled charges. 2.03 Place of Payment. Intermedix may accept payments at any location designated by it and may accept payments in the name of Intermedix for the benefit of Provider or Provider. 2.04 Remittances of Collections. On each Wednesday (or the immediate following business day should any Wednesday not be a business day in the State of Texas) of each week -2- HOU:357342v4 during the Term, Intermedix shall forward to Provider checks received but not deposited during the previous week. 2.05 Copies of Records. From time to time, Intermedix may receive requests from patients or the representatives of patients for copies of treatment records. Intermedix may bill patients or their representatives $40.00 (but not to exceed the maximum permitted by Texas or Federal Law, including the Texas Public Information Act) for preparation and release of records, and the total amount billed and collected may be retained by Intermedix for its services rendered. Provider will not receive any portion of this payment and specifically waives any right, title or interest it may now or later claim in such payment. In return for the right to receive such payments, Intermedix will provide, at no charge to Provider, copies of patient treatment records and/or other records Intennedix maintains on behalf of Provider if Provider receives a subpoena, discovery, or public information request for such records. Provider and Intermedix agree that the $40.00 charge referred to in this section may only be modified in writing, executed by both parties. Article Three Settlements and Alternative Collection Arrangements 3.01 Payment Arrangement Authority. Provider hereby grants Intermedix authority to enter into a payment arrangement on its behalf with patients charged for the Services if (a) the payment is for the full amount of a bill and (b) the length of the payments does not exceed 12 months. Provider must approve payment arrangements made for any period. exceeding 12 months. 3.02 Termination of Collection Efforts. If active collection efforts with respect to any account have been unsuccessful for 240 days or more, Intermedix shall have the right to terminate collection efforts with respect to such account and close the account as an unpaid debt. In addition, Intermedix may terminate or suspend collection efforts if Provider has supplied Intermedix with incomplete or inaccurate billing and/or patient information. In either event, Intermedix shall upon termination or suspension, immediately forward to Provider all records of Intermedix collection efforts, at no charge to Provider, and cease all collection activity. Intermedix shall not be entitled to compensation under this Agreement with respect to accounts on which it has terminated collection efforts. 3.03 Termination of Activities after end of Term. Intermedix agrees that it will cease all collection activities on all accounts by 11:59:59 PM on the 90th day after the end of either the Term or the termination date, whichever occurs earlier. Article Four Compensation 4.01 Compensation. With respect to accounts collected during the Term and all accounts billed during the Term and collected after the Term, Intermedix shall be compensated and paid in accordance with the following schedule: -3- HOU:357342A a. 11.0% of the total amount collected on each account. b. An additional 1.8% if payment is made by a credit card. 4.02 Obligation for Payment. Payment in accordance with Section 4.01 shall be due and owing to Intermedix by Provider for all accounts collected during the Term and collected after the Term but billed during the Term regardless of whether payment was made to Intermedix or to Provider and regardless of whether Intermedix is used as the billing agent. Intermedix and Provider agree that the purpose of this section is to guarantee that Intermedix is the sole person engaging in billing services on behalf of Provider. Intermedix acknowledges that the Provider has an existing contract for accounts that are considered delinquent or in a "collections service" status and will not bill for those accounts. Intermedix will provide on-line reports via the web access system to the Provider outlining those accounts which have exceeded the 240-day limit as outlined in Section 3.02 above and are eligible for collections status. Article Five Records and Reporting 5.01 Secure Website Access. Intermedix shall maintain records regarding Provider's accounts, collections and patient encounters on a secure website (the "Web Database") accessible with the Web Access System (as such term is defined below). Provider understands and agrees that the medical information available on the Web Database is private and confidential medical data that is protected as PHI (as such term is defined in Section 11.01 hereof) under Federal Law. Provider further understands and agrees that the Web Database contains other proprietary and confidential information that Provider may not share with third parties. Provider agrees to maintain the confidentiality of such information. Further, Provider shall limit access to the Web Database to its authorized personnel who have completed and signed an access form. Provider understands and agrees that Intermedix must receive and review each access form prior to activating any person's access to the Web Database. Provider understands and agrees that to maintain the confidentiality of the Web Database; Provider must provide Intermedix immediate, written notice of the termination of any person with access to the Web Database. Provider understands and agrees that Intermedix shall use its reasonable best efforts to maintain the security of the Web Access System, and that it is the sole responsibility of the Provider to maintain password security relating to Provider's personnel or other breaches beyond Intermedix's reasonable control. 5.02 Records of Patient Encounters. (a) Provider shall use its reasonable best efforts to forward all original medical records of each patient encounter to Intermedix within 10 days of such patient encounter. Such records shall be deemed to be the property of Provider, but Intermedix shall have the right to duplicate and retain paper or electronic copies of the records. If the records exist only in electronic form, each electronic copy shall be deemed to be an original for the purposes of this Agreement. -4- HOU:357342v4 (b) Provider acknowledges that Intermedix has no responsibility for complying with all provisions of Title 42 CFR Section 410.40 which states, in part, that an ambulance service bears the responsibility for obtaining Physician Certification Statements (PCS's). Provider further understands and concurs that Intermedix is neither an ambulance service nor ambulance provider within the definitions as set forth by the Centers for Medicare and Medicaid Services. 5.03 Requests for Copies. Requests for copies of medical records should be submitted directly to Intermedix. Either Intermedix or Provider may authorize release of the records such that the release is in accordance with the standards and time requirements established by State and Federal law. 5.04 Texas Department of State Health Services Reports. Intermedix will be responsible for reporting all required information regarding patient encounters and trauma to the Texas Department of State Health Services. 5.05 Activity Reports. Intermedix will grant to Provider electronic access to all records on file regarding Provider including, but not limited to, patient care reports, medical records, billing records, correspondence regarding accounts, and statistical records on the Provider's medical personnel. Other than during periods of routine systems maintenance, the aforementioned information will be dynamic, real-time information and made available 24 hours per day, 365 days per year, throughout the term of this agreement. 5.06 Information Received by Provider. To the extent that Provider receives payments or original copies of documentation directly, Provider shall forward to Intermedix copies of checks, Explanations of Benefits and/or other documentation within ten (10) days of the date of receipt of payment by Provider. 5.07 Statistical Data. Provider understands and agrees that Intermedix's Web Database will maintain statistical data regarding collections and medical encounters reflecting data as it is entered in the Web Database by Intermedix or Provider. The format and content of the statistical data reports available in the Web Database will be established and defined by Intermedix, and Intermedix may add, delete or, modify the content and types of reports available without notice to Provider. Notwithstanding its right to change the form of such reports the available data in the reports shall include, at a minimum, a list of the accounts open and closed, the statement amount due for each account, the amount paid for each account and the date each account was open and closed. Provider further'understands and agrees that, to the extent that it enters information into the Web Database, such information will be used in calculating the statistical data. To the extent that the information Provider enters is in error, the statistical data and calculations may also contain errors. Provider understands and agrees that Intermedix shall not be responsible for any such statistical errors caused by incorrectly entered data or for the correction of incorrectly entered data. -5- HOU:357342v4 Article Six Web Database Access and Data Management 6.01 Web Access System. Intermedix will grant to Provider electronic access to all records on file regarding Provider including, but not limited to, medical records, billing records, correspondence regarding accounts, and records on personnel including credentials. It shall be the responsibility of Provider to provide its own necessary computer equipment, computer communication equipment capable of connecting to the Internet and accessing Intermedix's Internet server (hereinafter referred to as "Web Access System") and Internet access. Provider will be solely responsible for maintaining and upgrading its computer equipment as necessary to access the Web Access System. Provider acknowledges and agrees that it may have obligations under various state and federal laws to maintain patient privacy with respect to certain patient information. 6.02 Web Access System Training. Upon written request of Provider, Intermedix will provide an annual, on-site training class on the use of the Web Access System at a time determined to be mutually convenient to the parties. 6.03 Compliance with Texas State Records Retention Schedule. The information Intermedix maintains on behalf of Provider shall be retained and maintained in accordance with the provisions of Local Schedule PS of the Texas State Records Retention Schedule as may be promulgated by the Texas State Library and Archives Commission from time to time and as adopted by Provider. Notwithstanding the foregoing, Provider understands and agrees that Intermedix is agreeing to maintain and retain such records only during the Term of and pursuant to the provisions of this Agreement. Provider further understands and agrees that Intermedix will comply with the provisions of this section at the termination of this Agreement by providing written or electronic copies of such records to Provider. After such copy is provided, Intermedix shall have no further obligations under this section. Article Seven Support Services Intermedix will provide patients and personnel of Provider with telephone support services during normal business hours (Monday - Friday from 9:00 a.m. to 5:00 p.m.) except on public holidays or other holidays as established by Intermedix. Article Eight Indemnification and Fidelity Bond 8.01 Intermedix's Indemnification. Intermedix shall indemnify and hold harmless Provider from and against claims, damages, losses and expenses, including but not limited to attorneys' fees, arising out of or resulting from Intermedix's performance, but only to the extent caused by the willful misconduct or the negligent acts or omissions of Intermedix. The indemnification provided for herein shall not be applicable to any claim of adjustment or request for reimbursement made by an insurance company or any servicing agency for Medicare or Medicaid that may be made as the result of an audit of claims made or governmental regulations -6- HOU:35734U4 or laws, including Intermedix's fees charged, except for any adjustments or claims for reimbursement made as a direct result of Intermedix's error. 8.02 Fidelity Bond. Intermedix shall keep and maintain during the term of this Agreement a fidelity bond with a qualified insurer of no less than $50,000.00. 8.03 Insurance. Intermedix shall keep and maintain during the term of this Agreement general liability insurance with a qualified insurer of no less than $1,000,000.00. Article Nine Confidentiality 9.01 Web Database; Web Servers; Other Property of Intermedix. Provider agrees that the equipment, computer hardware and software, billing and collection processing, and other related systems and equipment are the property and trade secrets of Intermedix, and that Provider will not release any information regarding such trade secrets to any third party without the prior written consent of Intermedix. 9.02 Fact of Contractual Relationship May Be Disclosed. Notwithstanding the foregoing, either party may, without the prior written consent of the other party, disclose the existence of a contractual relationship between the parties. Article Ten Audit 10.01 Accurate Books and Records. During the Term and for a period of three (3) years thereafter, each party agrees to maintain accurate books and records associated with the billing and collections made the subject of this Agreement. 10.02 Right to Audit. Upon reasonable written notice, either party may audit the books and records of the other party insofar and only insofar as such books and records relate or pertain directly to this. Agreement. Such audit shall be conducted at the office of the party being audited, shall be during normal business hours, and shall be at the sole cost and expense of the party conducting the audit. 10.03 Penalty for Underpayment. If an audit reveals that a party has failed to pay any amount or portion of any amount due or payable under this Agreement and such amount is in excess of $20,000, the party being audited shall pay to the auditing party the full. cost of the audit and the full amount due or payable plus interest at the rate of ten percent (10%) per annum from the date(s) of nonpayment. Article Eleven Protected Health Information 11.01 HIPAA Compliance. Intermedix shall carry out obligations under this Agreement in compliance with the privacy regulations pursuant to Public Law 104-191 of -7- HOU:3573420 August 21, 1996, known as the Health Insurance Portability and Accountability Act of 1996, Subtitle F - Administrative Simplification, Sections 261, et seq., as amended ("HIPAA"), to protect the privacy of any personally identifiable protected health information ("PHI") that is collected, processed or learned as a result of the services provided in this Agreement. In conformity therewith, Intermedix agrees that it will: a. Not use or further disclose PHI except as permitted under this Agreement or required by law; b. Use appropri ate safeguards to prevent use or disclosure of PHI except as permitted by this Agreement. c. To mitigate, to the extent practicable, any harmful effect that is known to Intermedix of a use or disclosure of PHI by Intermedix in violation of this Agreement; d. Report to Provider any use or disclosure of PHI not provided for by this Agreement of which Intermedix becomes aware; e. Ensure that agents or subcontractors to whom Intermedix provides PHI, or who have access to PHI, agree to the same restrictions and conditions that apply to Intermedix with respect to such PHI; f. Make PHI available to Provider and to the individual who has a right of access as required under HIPAA within 10 days of the request by Provider on behalf of the individual; g. Incorporate any amendments to PHI when notified to do so by Provider; h. Provide an accounting of all uses or disclosures of PHI made by Intermedix as required under the HIPAA privacy rule within 60 days; and i. Make its internal practices, books and records relating to the use and disclosure of PHI available to the Secretary of the Department of Health and Human Services for purposes of determining Intennedix's and Provider's compliance with HIPAA. 11.02 HIPAA Disclosures. The specific uses and disclosures of PHI that may be made by Intermedix on behalf of Provider include: a. The preparation of invoices to patients, carriers, insurers and others responsible for payment or reimbursement of the services provided by Provider to its patients; b. Preparation of reminder notices and documents pertaining to collections of overdue accounts; -8- HOU:357342v4 c. The submission of supporting documentation to carriers, insurers and other payers to substantiate the health care services provided by Provider to its patients or to appeal denials of payments for same; d. The preparation and release of medical records to patients or their legal representatives as permitted by HIPPA privacy rule; e. Uses required for the proper management of Intermedix as a business associate; and f. Other uses or disclosures of PHI as permitted by HIPAA privacy rule. Article Twelve Miscellaneous 12.01 No Waiver. The failure of either party to insist upon strict performance of any provision of this agreement shall not be construed as a waiver of any subsequent breach of the same or similar nature. 12.02 Provisions Construed Separately. The parties agree that each provision of this Agreement shall be construed as separable and divisible from every other provision and that the enforceability of any one provision shall not limit the enforceability, in whole or in part, of any other provision hereof. In the event that a court of competent jurisdiction determines that any term or provision herein shall be invalid or unenforceable, the remaining terms and provisions of this Agreement shall not be affected thereby, and shall be interpreted as if the invalid term or provision were not a part hereof. 12.03 Final Agreement. This Agreement sets forth the entire, final and complete understanding between the parties hereto relevant to the subject matter of this Agreement. No waiver or modification of any of the terms or conditions of this Agreement shall be effective unless in writing signed on behalf of both parties. 12.04 Performance of Agreement, Venue; Choice of Law. Provider understands and agrees that Intermedix will be performing this contract in Harris County, Texas. The venue for any disputes or causes of action that may arise out of this Agreement is the state and county courts located in Denton County, Texas. The provisions of this Agreement shall be determined in accordance with the laws of the State of Texas excluding the choice of law provisions thereof. 12.05 Headings. The headings of this Agreement are for ease of reference only and are not intended to limit or restrict the terms hereof. 12.06 Binding Nature of Agreement. This Agreement is binding upon the heirs, legal representatives, successors and assigns of the parties hereto. 12.07 Compliance with Laws Generally. Intermedix shall comply with all applicable laws, orders, rules, or regulations of all governmental agencies bearing on its performance -9- HOU:357342v4 hereunder. If so requested by Provider, Intermedix shall submit appropriate evidence of such compliance. 12.08 Independent Contractor. It is understood and agreed that Intermedix is an independent contractor. Nothing herein contained shall be construed to create any partnership, joint venture, or joint enterprise between the parties. 12.09 Non-Profit Status Determination Letter. If Provider is a not-for-profit entity, Provider shall provide a duplicate of its letter determining its not-for-profit status with the Internal Revenue Service. In providing such letter, Provider further represents and warrants to Intermedix that it has done every act necessary to maintain its not-for-profit status with the Internal Revenue Service and is not aware of any pending, threatened or actual revocation of its not-for-profit status. 12.10 Appendices. Intermedix and Provider may enter into various appendices to this Agreement from time to time and at any time regarding additional services. Such appendices shall be considered part of this Agreement as if set forth herein at length unless such appendix provides otherwise. 12.11 Notices. Intermedix's address and facsimile number are as listed in the opening paragraph above. Provider's address and facsimile number are as listed below its signature. Should either party change addresses or facsimile numbers, such party will notify the other of its new information, in writing, within 30 days of such change of information. Notices required or permitted to be given hereunder shall be deemed to be given the day they are mailed or faxed and shall be deemed to be received the same day if by fax (provided the sender.has a fax machine/fax database generated proof of receipt) and in three days if by mail. [ONLY SIGNATURE-SECTION TO FOLLOW] -10- HOU:357342v4 ~ EXECUTED on theo,° ay of ~r 200h, and EFFECTIVE as of the y day of ~ve 00~k.- INTERMEDIX Intermedix, Inc. By: i~~ - geremy Ma rn, President PROVIDER Name: City of Denton Type of Entity: Government For Profit X Not for Profit By: Name: Howard Martin Title: Interim City Manager ADDRESS OF PROVIDER 215 E. McKinney Denton, TX 76201 HOU:357342v4 Facsimile No.: -11- ATTACHMENT B ADDENDUM TO SERVICE AGREEMENT (Triptix Program) THIS ADDENDUM a T S RVJCE AGREEMENT (the "Addendum") is made and entered this day of a , 2099,' by and between Intermedix Technologies (dba ADPI - Intermedix) ("CONTRACTOR"), whose original address was 16225 Park Ten Place, Suite #805, Houston, TX 77084, and whose corporate address is now 6451 North Federal Highway, Suite 1002, Fort Lauderdale, Florida 33308, and the CITY OF DENTON ("CITY"), whose address is 215 East McKinney, Denton, TX 76201, to amend the Service Agreement entered into by and between the CONTRACTOR and the CITY effective on the 21 st day of February, 2006 (the "Original Agreement" or "AGREEMENT"). WHEREAS, the CONTRACTOR has developed the "Triptix@" system running on "Toughbook" style PC's to enter medical records and data into and interact with its main billing and medical records system (the "Product" as more particularly defined herein) that the CONTRACTOR is willing to make available under license to the CITY upon the terms herein set forth; and WHEREAS, the CITY has expressed a desire to use the Product; and NOW, THEREFORE, IN CONSIDERATION of the mutual promises and covenants hereafter set forth, the Parties agree as follows: ARTICLE I DEFINITIONS 1.01. Definitions. For all purposes of this Addendum, the following definitions shall apply: "Confidential Technical Information" shall mean any and all technical information of the designated Party except: technical information which at the time of disclosure is in the public domain; technical information which after disclosure is published or otherwise becomes a part of the public domain through no fault of the recipient (but only after it is published or otherwise becomes part of the public domain); technical information which the recipient can show was in its possession at the time of disclosure and it was not acquired, directly or indirectly, from the other Party hereto; or technical information which was received by the recipient after the time of disclosure hereunder from a third party who did not acquire it, directly or indirectly, from the disclosure Party under an obligation of confidence. "Contract Riahts" shall mean Intellectual Property and any other rights and interests of CITY or CONTRACTOR in and under this Addendum, including other assets relating to the Product. "Customizations" shall mean any changes to the Licensed Software requested by the CITY and agreed to by the CONTRACTOR for increased or different functionality of the Licensed Software. "DaV' or "Days" shall mean a continuous calendar day. "Documentation" shall mean any technical or instructional materials for the Licensed Software that are delivered to the CITY by the CONTRACTOR. "Effective Date" shall mean the date on which the Initial Fee is paid or, if no Initial Fee is required, the date on which the last party to this Addendum executed it. "First Day of Service" shall mean, with respect to each Product Unit, the first day such Product Unit is delivered to the CITY. "Initial Period' shall mean, with respect to each. Product Unit, the initial three-year period following the delivery of the Product Unit to the CITY. "Intellectual Property' shall mean all of the CONTRACTOR's rights in and to the Product, including, without limitation, the CONTRACTOR's copyrights, trademarks, trade dress, trade secrets, patents and patent applications (if any), and "know how" and any other proprietary information developed by the CONTRACTOR relevant to the Product. "Initial Fee" shall mean, with respect to each Product Unit, the Third-Party Intellectual Property Royalty Payments required in connection with such Product Unit. "Initial Term Early Exercise Payment" shall mean, with respect to any Product Unit, the payment required under the terms and provisions of Section 5.03 of this Addendum. "Licensed Software" means the copies of the CONTRACTOR's software programs as are contained in the Product, including any Documentation included therewith. CONTRACTOR may, provide corrections and modifications to the Licensed Software from time to time and notify the City of any modifications that affect the City's use of the product. "Licensed Territory' shall mean any geographical area in which the CITY operates its emergency medical service throughout the term of this addendum "Product" shall mean, collectively, each Product Unit (a tablet PC, personal digital assistant, or similar device), the Licensed Software, any Customizations with respect to one or more of the Product Units delivered to the CITY, and any Third-Party Intellectual Property, as licensed to the CITY under the terms and conditions of this Addendum. "Product Unit" shall mean a single data-collection device delivered pursuant to the terms and conditions of this Addendum containing one or more elements of the Product but shall not mean any ancillary devices or products provided by persons other than the CONTRACTOR. "Third-Party Interface Devices" shall mean those devices that interface with the Product to transfer information, including medical monitoring devices for which Third-Party Intellectual Property Royalty Payments are made. 2 "Third-Party Intellectual Property Rights" shall mean the intellectual property rights of any third-party used in connection with the Product. "Third-Party Intellectual Property Roya/ty Payments' shall mean the payments to be made as consideration for the licensing of any Third-Party Intellectual Property Rights. "Updates" shall mean any and all revisions to the Licensed Software and the Customizations or any other part of the Product, if any, as shall be delivered by the CONTRACTOR to the CITY from time to time. "Users" shall mean any employees or independent contractors of the CITY, all of whom shall have the right to use the Licensed Software, Customizations, and any Documentation pursuant to the terms of this Addendum. ARTICLE II PRICE AND PAYMENT 2.01. Adjustment to Rates of Compensation under the Original Agreement. The compensation due and owing the CONTRACTOR by the CITY shall be amended, as described on Schedule 2.01, attached hereto and incorporated herein, during the Term of this Addendum only as to the services and products herein. Nothing herein shall change the obligations of the Parties as to the AGREEMENT. 2.02. License Fees. In addition to the payments required pursuant to the provisions of Section 2.01 hereof, the CITY may consider payments in connection with Third-Party Intellectual Property Royalty Payments, subject to City Council approval, if applicable. 2.03. Payment Terms. All undisputed amounts shall be paid within thirty (30) days of receipt of a valid invoice. 2.04. Taxes. The Parties hereto acknowledge that the CITY is a tax-exempt organization. ARTICLE III DATA MANAGEMENT; DATA ENTRY; ADDITIONAL RECORDS ON WEB ACCESS SYSTEM 3.01. Web Access System. The CONTRACTOR will grant to the CITY electronic access to all records on file regarding the CITY, including, but not limited to, medical records, billing records, correspondence regarding accounts, and records on personnel including credentials. It shall be the responsibility of the CITY to provide its own necessary computer equipment, computer communication equipment capable of connecting to the Internet, and accessing the CONTRACTOR's Internet server (hereinafter referred to as "Web Access System"). 3.02. Web Access System Training. Upon request of the CITY, the CONTRACTOR will provide an annual, on-site training class on the use of the Web Access 3 System at times and dates proposed by the CITY which are convenient to both parties. Training shall be provided to all personnel as determined by the CITY. 3.03. Limitation of Access to Web Access System. Access to data in the Web Access System regarding the CITY shall be limited to the employees, representatives and agents of the CONTRACTOR and the authorized personnel of the CITY. A complete and signed access form for each of the CITY's personnel authorized to access the Web Access System must be submitted to and approved by the CONTRACTOR. The CONTRACTOR shall use its best efforts to maintain the security of the Web Access System, but shall not be responsible for negligence with respect to password security related to the CITY's personnel or other breaches beyond the CONTRACTOR's reasonable control. Regardless of the foregoing, the CONTRACTOR agrees to comply with all federal, state, and local laws, rules, codes, ordinances, regulations, directives, and guidelines as it relates to the Web Access System and the information therein. 3.04. Data Entry Devices. The CITY and the CONTRACTOR understand and agree that CONTRACTOR may make available data entry devices (hand-held devices, tablet PCs, and/or other data entry devices for the collection and/or transmission of medical information). Also, in connection with the potential provision of such devices, the CITY agrees: (a) The CONTRACTOR is providing the data entry devices with the three-year enhanced manufacturer's warranty which provides a maximum benefit limited to one major failure per year for the LCD, keyboard, hard drive, and system board. The CITY will be responsible for the loss or damage to such devices beyond the aforementioned coverage to include consumables such as stylus pens, batteries, screen protection sheets, etc. The CONTRACTOR agrees that CITY may obtain additional insurance for such payments provided that CONTRACTOR is named as a beneficiary under such plan. (b) Third party medical device manufacturers may require independent agreements not addressed by this addendum. Subject to City Council approval, the CITY may enter into additional agreements with the makers of third party medical devices (monitors, scanner, EKG machines, etc.) with respect to the transmission of information between the medical device and the CONTRACTOR supplied data entry device. The CITY understands that the CONTRACTOR may not be able to provide data entry devices unless agreements are entered into with the third-party manufacturers of such medical devices if necessary. The CITY understands and agrees that the failure to enter into such agreements with these third parties may hinder the CITY's use of certain software features that might otherwise be available to it (for instance, a direct data connection between a medical device and the data entry device). 3.05. Statistical Reporting. Statistical and financial data reports will be available on the Web Access System at all times that the Web Access System is available. The format and content of the statistical data will be established and defined by the CONTRACTOR and such reports may be added, modified, or deleted without advance notice to the CITY. Notwithstanding the foregoing, the CITY may request specific, custom reports to be available to it at an additional charge to be negotiated between the CONTRACTOR and the CITY. The CONTRACTOR represents that its web site and 4 system shall not be down for more than a 24-hour period. However, in the event that the web site and system is down for more than the 24-hour period, CONTRACTOR agrees to provide required reports via an alternative method (e.g. phone, fax, courier, etc.) until such time as the web site and system are returned to operation.. 3.06. Acknowledgment with Respect to Reports. With respect to each report generated by the Web Access System, the CITY acknowledges and agrees: (a) Each report represents a "snapshot" of a moment in time, and, as such, the snapshot may not be accurate with respect to financial results on the whole. However, the CONTRACTOR shall endeavor to provide accurate information. (b) The underlying data may be subject to correction from time to time, which may change the results of the report or its interpretation. Such correction shall be done in a timely manner. The CONTRACTOR understands that time is of the essence. (c) The data represented in the report represents only a limited portion of all data available regarding the CITY's business. However, the CONTRACTOR shall endeavor to provide accurate and timely information. ARTICLE IV PROPRIETARY RIGHTS 4.01. The CITY acknowledges that the CONTRACTOR and its suppliers, including, without limitation, the suppliers of licenses of Third-Party Intellectual Property Rights, have, retain, and own all right, title, and interest in and to the Licensed Software, the Customizations, the Updates, any Documentation, and all patent, copyright, trademark and service mark and trade name and the goodwill associated therewith, trade secret, inventions, technology, ideas, know-how, and all other intellectual property rights and all other rights pertaining thereto. All such right, title, and interest shall be and remain the sole property of the CONTRACTOR. The CITY shall not be an owner or holder of any copies of, or have any interest in the Licensed Software or any Updates, Customizations, and Documentation but rather, such Licensed Software, Releases and Updates, and Documentation are solely licensed for use pursuant to this Addendum. Neither CITY nor its Users shall: (i) remove any copyright, patent or other proprietary legends from the Licensed Software or any Product; (ii) sub-license, lease, rent, assign, transfer, or distribute Licensed Software or any Product to any third party; (iii) alter, modify, copy, enhance, or adapt the Licensed Software or any Product; (iv) attempt to reverse engineer, covert, translate, decompile, disassemble, or merge the Licensed Software or any Product with any other software or materials; (v) otherwise create or attempt to create any derivative works from this Licensed Software or any Product, or permit persons who are not Users any access to the Licensed Software or its operations, and any attempt to do any of the above shall void all warranties given the CITY by the CONTRACTOR. ARTICLE V TERM AND TERMINATION 5 5.01. Term. The term of this Addendum shall begin on the Effective Date and shall continue until the end of the Initial Period of the last Product Unit delivered pursuant to the terms and provisions of this Addendum ("Initial Term"). The CONTRACTOR's Maintenance and Support obligations, as well as its development commitments, shall continue until the end of the Initial Term at the fees set forth by this Addendum. 5.02 Terminations in General. Notwithstanding any other language herein or in the AGREEMENT, a termination of the Addendum shall not operate to terminate the AGREEMENT, but a termination of the AGREEMENT shall operate as a termination of this Addendum. 5.03 Termination of the Addendum. (a) Termination by the CITY upon the CONTRACTOR's Material Breach. The CITY may terminate this Addendum without terminating the AGREEMENT and without obligations to pay an Initial Term Early Exercise Payment, if the CONTRACTOR commits a Material Non-Monetary Breach of this Addendum, which breach, if capable of being cured, is not cured within thirty (30) days of a written notice of termination (b) Termination by the CITY without the CONTRACTOR's Material Breach. The CITY may terminate this Addendum without terminating the AGREEMENT at any time by providing notice to the CONTRACTOR and returning all Product Units to the CONTRACTOR. Termination without the CONTRACTOR's Material Breach will be subject to an Initial Term Early Exercise Payment as outlined in Schedule 2.02 (c) Termination by the CONTRACTOR upon the CITY's Material Breach. The CONTRACTOR may terminate this Addendum if the CITY commits: (i) a Material Monetary Breach - The CITY fails to pay any undisputed amount due under this Addendum within 20 days after written notice of such nonpayment or as required by applicable Prompt Payment Laws; (ii) a Material Non-Monetary Breach, which breach, if capable of being cured, is not cured within 30 days of a written notice of termination. (d) Any termination of the Addendum shall not: (i) release the CITY or the CONTRACTOR from any claim of the other accrued hereunder prior to the effective date of such termination; (ii) release the CITY or the CONTRACTOR from their obligations unless otherwise released by the further terms hereto. (e) Upon termination of this Addendum, the CONTRACTOR shall remain the sole owner of the Product and all Intellectual Property and goodwill associated therewith, and the CITY shall assert no rights thereto. 6 5.04. Delivery of Materials. Upon termination of this Addendum for any reason, the CITY shall immediately discontinue use of the Product including all Documentation and return each of the Product Units and certify in writing to the CONTRACTOR that all copies, extracts or derivatives of any item comprising the Product, including all Documentation, in whole or in part, in any form, have either been delivered to the CONTRACTOR or destroyed in accordance with the CONTRACTOR's instructions. ARTICLE VI LICENSE 6.01. License. Commencing on the Effective Date and subject to the terms and conditions of this Addendum, the CONTRACTOR grants the CITY a non-exclusive, non- transferable license to use the Product in the Licensed Area by the Users. This license does not constitute a sale of the Product or any portion or piece thereof or of any copies of Licensed Software, Customizations, or Documentation. 6.02. Delivery and Acceptance. The CONTRACTOR will deliver to the CITY, the Product at mutually agreeable times, after or simultaneously with the later of date of the execution of this Addendum or Effective Date, or as otherwise provided. All products shall be in good condition, operable, and acceptable to the CITY. 6.03. No Other Rights. Except to exercise the license and its rights specifically granted under this Addendum, the CITY shall have no rights to own, use, or otherwise exercise dominion over the Product. Except as otherwise permitted under this Addendum, the CITY may not rent, lease, loan, sell, or otherwise distribute the Product or any derivative works based upon the Licensed Software in whole or in part, unless mutually agreed to in writing by the Parties hereto.. 6.04. Right of Audit. Either party may audit and inspect the other party's physical and electronic records solely to verify such party's compliance with the terms of this Addendum and the AGREEMENT. The CITY hereby agrees to the remote electronic survey of the Licensed Software licensed hereunder, provided the CITY is provided ten (10) business day's prior written notice of such survey, and provided further that such audit is conducted in a reasonable manner. In addition, upon written request from the other party, each party shall provide or obtain physical access to such records to either the requesting party or an independent auditor chosen by the party for the purposes of audit. All physical audits of the CITY will be conducted at the business premises in which the Licensed Software is installed or accessed during regular business hours during the term of this Addendum. Audits will be conducted no more frequently than once annually. All individuals performing such audits, including independent third-party auditors, must be bound by confidentiality obligations consistent with this Addendum and applicable state laws. 6.05. Material Change to Product. If there is any material change in any rules, orders, laws or regulations governing the manner in which this Product operates or in the data provided by third parties (such as changes in the manner of operation of global distribution systems or standards in wireless or non-wireless communications protocols), then upon written notice to the CITY, the CONTRACTOR will have the right to modify the 7 way in which this Product delivers data in order to comport with any change in law or regulations or functionality governing the Product. All data used by the CONTRACTOR for testing and development shall be supplied by the CITY to the CONTRACTOR promptly upon request by the CONTRACTOR to the CITY. ARTICLE VII LIMITED WARRANTY AND DISCLAIMER 7.01. Software Media Warranty. The CONTRACTOR warrants that each Product Unit delivered to the CITY will be free from material defects when delivered. CONTRACTOR' entire liability and CITY's exclusive remedy under this warranty will be to replace the media on which such Product was delivered. The CONTRACTOR shall have no obligation to replace any defective media which is not returned to the CONTRACTOR within the warranty period or which has failed because of accident, abuse, or misapplication. 7.02. Software Warranty. The CONTRACTOR warrants that for the term of this Addendum the delivery of a Product Unit identified by the CONTRACTOR as being fully functional for production at the site designated by the CONTRACTOR, the Product, if properly used by the CITY, shall operate in conformity with the Documentation for such Product, if any, and for its intended purposes. The CONTRACTOR does not warrant that any Product will meet all of the CITY's requirements or that the use of any Product will be uninterrupted or error free. 7.03. Grant of Standard Warranties Only. NEITHER THE CONTRACTOR NOR ANY OF ITS SUPPLIERS MAKE ANY WARRANTIES, EXPRESSED, IMPLIED, STATUTORY, OR IN ANY COMMUNICATION WITH THE CITY WITH RESPECT TO THE PRODUCT OR OTHER ITEMS DELIVERED PURSUANT TO THIS ADDENDUM THAT IS NOT PART OF THE STANDARD WARRANTY OFFERED BY THE CONTRACTOR TO ITS OTHER CUSTOMERS. ANY REFUND OF FEES PROVIDED HEREUNDER (WHICH MAY BE UNDERTAKEN AT THE CONTRACTOR'S SOLE AND COMPLETE DISCRETION) SHALL BE DEEMED A TERMINATION OF THIS ADDENDUM (AND ANY RELATED MAINTENANCE) AND SHALL BE THE CITY'S SOLE AND EXCLUSIVE REMEDY FOR REJECTION OF THE PRODUCT(S), AND NEITHER PARTY SHALL HAVE ANY FUTURE OBLIGATIONS OR LIABILITY HEREUNDER WITH RESPECT TO SUCH PRODUCT(S). THIRD-PARTY INTELLECTUAL PROPERTY PAYMENTS SHALL NOT BE REFUNDABLE IN FULL OR IN PART. 7.04. Information/Disclaimer of Warranties with Respect to Data and Information Provided by Third Parties. (a) Some information transmittable or accessible through any Product Unit may have been obtained through sources believed to be reliable (such as various Internet providers, real-time data provided by GPS systems or medical devices or other third party information sources). The CITY agrees that the CONTRACTOR shall not have any liability whatsoever for the accuracy, completeness, timeliness or correct sequencing of the information, or for any decision made or action taken by the CITY in reliance upon such 8 information or the Product. The CITY further agrees that the CONTRACTOR shall have no liability whatsoever for the transmission, non-transmission or partial transmission of data through third-party data systems. (b) The CONTRACTOR and its third-party suppliers do not warrant that any Product will meet the CITY's requirements or that access to the Product, or the operation of the Product, will be uninterrupted, error-free, that all errors will be timely corrected by third-party information, or that the data and/or reports generated by the Product will be accurate in the event that third-party information might have provided inaccurate information. 7.05. Disclaimer. NO REPRESENTATIVE OF THE CONTRACTOR SHALL HAVE THE RIGHT TO MAKE WARRANTIES ON THE CONTRACTOR'S BEHALF UNLESS THOSE WARRANTIES ARE IN WRITING AND EXECUTED BY A DULY AUTHORIZED OFFICER OF THE CONTRACTOR. THIS SECTION DOES NOT LIMIT LIABILITY FOR BODILY INJURY OF A PERSON. ARTICLE VIII FORCE MAJEURE 8.01. If the. performance of this Addendum by any Party, or of any obligation under this Addendum, is prevented, restricted or interfered with by reason of war, revolution, civil commotion, acts of public enemies, blockage, embargo, strikes, any law, order, proclamation, regulation, ordinance, demand, or requirement having a legal effect of any government or any judicial authority or representative of any such government or any other act whatsoever, which are beyond the reasonable control of the Party affected, then the Party so affected shall, upon giving prior written notice to the other Party, be excused from such performance to the extent of such prevention, restriction, or interference; provided, however, that the Party so affected shall use its best efforts to avoid or remove such causes of nonperformance and shall continue performance hereunder with the utmost dispatch whenever such causes are removed. 9 ARTICLE IX ASSIGNABILITY 9.01. This Addendum shall be assignable to (i) any related company of the CONTRACTOR or (ii) any successor of the entire right, title, and interest to that portion of the business of the CONTRACTOR to which this Addendum relates. When assigned in accordance with this Paragraph, this Addendum and all rights, obligations, and duties hereunder will inure to the benefit of and will be binding on the assignees or successors in interest of the CITY. 9.02. This Addendum shall not be assigned by the CITY without the express written consent of the CONTRACTOR, which shall not be unreasonably withheld. ARTICLE X NOTICES 10.01 Any notice given or required to be given under this Addendum shall be in writing and shall be addressed to the Parties hereto at the addresses set out on the first of this Addendum. 10.02. Any such notices shall be deemed to have been given (i) if mailed, then three (3) days following the date such notice is placed in the United States mail in a postage- paid wrapper, registered or certified with return receipt requested, addressed to the appropriate Party at the address set forth above for such Party, or to the last address provided in writing to the other Party by the addressee, or (ii) if by any other method, when actually received. Either Party may change its address for the purpose of this Addendum by notice in writing to the other Party in accordance herewith. ARTICLE XI GOVERNING LAW AND ARBITRATION 11.01. THE PARTIES HERETO AGREE THAT THE VALIDITY AND INTERPRETATION OF THIS ADDENDUM AND THE LEGAL RELATIONS OF THE PARTIES HERETO SHALL BE GOVERNED BY THE LAWS OF THE STATE OF TEXAS. THE PARTIES FURTHER HEREBY CONSENT TO VENUE IN THE LOCATION CONTEMPLATED BY THE ORIGINAL AGREEMENT. 11.02. All disputes shall be governed by the Original Agreement. 11.03. Except as modified herein, all terms and conditions of the Original Agreement shall be in full force and legal effect. (The remainder of this page left intentionally blank) 10 IN WITNESS WHEREOF, the parties have executed this Agreement on the date herein above written. CITY OF DENTON (SEAL) BY: ATTEST: BY: APPROVED AS TO FORM: CITY ATTORNEY CITY OF DENTON, TEXAS ti INTERMEDIX TECHNOLOGIES, INC. (dba ADPI-Intermedix) By: ap= Doug Shamon, President and CEO WITNESS: By: C~ 4 2 Printed Na e: 6,; % rdl) e/L, (CORPORATE SEAL) By: e' P r i n e~dN a ~nJ f J~6 1~JfV OL M 11 Schedule 2.01 Rates of Compensation; Collection Efforts. From and after the Effective Date and during the Term of this Addendum, the CONTRACTOR shall be compensated as follows: In consideration of the CONTRACTOR's services rendered pursuant to the Original Agreement and this Addendum, the CONTRACTOR shall be compensated and paid in accordance with the following schedule (Percentages are expressed as a Percentage of Net Collections as defined in the Agreement): Billing Services as stated in Section 3 of the Agreement is amended to read 8.25% Panasonic Toughbooks Price: Up to and including 5 Product Units: 1.25% Additional units may be added to the addendum by mutual agreement of the parties. Schedule 2.02 Initial Term Early Termination Payments The Initial Term Early Termination Payments with respect to each Product Unit are as follows: Period Amount (1) For an Early Termination during the first 12 months from the beginning of the effective date of this Addendum $4,500 (2) For an Early Termination during the remainder $---0--- of the Term