|THIS AGREEMENT as of today by and between my organization and The NEMOURS Children's Clinic of The Nemours Foundation ("NEMOURS"), a Florida not-for-profit corporation with home offices located at 4600 Touchton Road East, Building 200, Suite 500, Jacksonville, Florida 32246, for the purpose of granting NemoursLink Partner secure access to NEMOURS' electronic database of patient information through NEMOURS' NemoursLink software ("Service") as described herein and incorporated into this Agreement.
WHEREAS, NEMOURS has compiled a secure electronic database consisting of clinical information (including progress notes, specialty consults, laboratory and imaging results), member demographics, insurance carrier information, other information regarding patients of NEMOURS, and Proprietary Information of NEMOURS (¿Nemours¿ Data¿); and
WHEREAS, NEMOURS has an interest in improving the delivery and coordination of care to patients of NEMOURS by providing the primary care providers of these patients secure electronic access to select portions of their patients¿ medical records as contained in the Nemours¿ Data; and
WHEREAS, NEMOURS has the ability to provide primary care providers secure electronic access to Nemours¿ Data concerning their patients via a connection to the internet or telephone line through the Service, and NemoursLink Partner, through its Users, desires to obtain access to Nemours¿ Data concerning NemoursLink Partner¿s patients by utilizing the Service;
NOW THEREFORE, in consideration of the promises and covenants contained in this Agreement, and for good and valuable consideration, NEMOURS and NemoursLink Partner agree as follows:
1. Access to Nemours¿ Data. Upon execution of this Agreement and any other required documents, and approval of all access sites and Users as required herein, NEMOURS will provide the NemoursLink Partner passwords and information to allow it to access the Nemours¿ Data relating to NemoursLink Partner¿s patients and also provide limited training on the NemoursLink System.
2.1 Authorized Agent or Representative means an individual who has the legal authority to legally obligate the primary care physician practice seeking to become a NemoursLink Partner under this agreement. This individual may be the practice owner, a partner or officer of the business entity, or otherwise be approved and designated by the leadership of the primary care practice as someone who can sign documents legally binding the practice.
2.2 Confidential Patient Information means individually identifiable health information regarding NEMOURS patients stored in the Nemours¿ Data and accessed through the Service, including clinical information such as progress notes, specialty consults, laboratory and imaging results, and patient demographic and insurance information. This information is protected by various state and federal privacy laws and regulations, including but not limited to the Health Insurance Portability and Accountability Act (HIPAA).
2.3 Covering User means an individual employed at a NemoursLink Partner who is temporarily covering the duties of a User who is on vacation, sick or on extended leave.
2.4 Nemours¿ Data means the Confidential Patient Information and Proprietary Information contained in a secure electronic database owned by NEMOURS regarding patients of NEMOURS.
2.5 NemoursLink Partner means a primary care physician practice, organized as a legal entity, consisting of either one or several physicians providing care to pediatric patients who have also been treated by NEMOURS providers. The legal entity is considered the NemoursLink Partner, and an authorized representative of the practice must sign the NemoursLink Partner Agreement on behalf of the entity.
2.6 Technical Liaison means the department or individual employed by NEMOURS who should be contacted by a User or NemoursLink Partner to report certain events or problems as required by this Agreement. The contact information for the Technical Liaison is contained in paragraph 14 below.
2.7 Proprietary Information is the information relating to NEMOURS¿ internal business affairs, including information regarding NEMOURS products, pricing; personnel data; vendor information; financial data and other competitively sensitive information that NEMOURS maintains as confidential. If such information is already made available in the public domain, then such information is not Proprietary information. All Proprietary Information is confidential and may not be used for any purpose other than treatment without the advanced written consent of NEMOURS. Proprietary information includes the NemoursLink Manual, this Agreement and the User Agreement, and any NemoursLink forms or documents.
2.9 Service means the NemoursLink software that provides a secure method of communication, which enables Users to view Confidential Patient Information concerning NemoursLink Partner¿s patients as contained in the Nemours¿ Data.
2.10 User means an individual employee of the NemoursLink Partner who is authorized by the NemoursLink Partner to obtain access to the Nemours¿ Data utilizing the Service and who has signed a NemoursLink User Agreement.
3. Proprietary Information. Nemours¿ Data contains Confidential Patient Information and Proprietary Information, which are the sole property of NEMOURS. The parties agree and understand that the Nemours¿ Data will remain the property of NEMOURS and that there is no intent to transfer any rights or legal interest in Nemours¿ Data to the NemoursLink Partner. NemoursLink Partner agrees that it will not copy or utilize Nemours¿ Data for any purpose except treatment of a NemoursLink Partner¿s patient, unless NEMOURS consents in writing or such use or disclosure is required by law. If NemoursLink Partner receives a request or demand for disclosure of the Nemours¿ Data, it will immediately provide written notice and a copy of such request or demand to NEMOURS as set forth in paragraph 14.
4. Term and Termination. This Agreement is effective on the date first listed below and will continue until either party notifies the other in writing of its intent to terminate. Either party may terminate this Agreement by sending advanced written notice of the intent to terminate. NEMOURS retains the right to unilaterally terminate access, in its sole discretion, without advance notice to NemoursLink Partner. Nemours will consider any unauthorized use of Nemours¿ Data as a breach of this Agreement and grounds for immediate termination of this Agreement. Upon termination of this Agreement, NemoursLink Partner agrees to ensure that its Users discontinue accessing the Nemours¿ Data immediately.
5. Permitted Use of Nemours¿ Data. NemoursLink Partner understands that the Nemours¿ Data contains confidential patient information that is protected from unlawful disclosure by state and federal laws and regulations. NemoursLink Partner is permitted to use Nemours¿ Data only for purposes related to treatment of NemoursLink Partner¿s patients. NemoursLink Partner agrees that it (including its employees, officers and agents) will comply with all applicable laws and regulations, and the terms of this Agreement, in its access and use of the Nemours¿ Data.
6. Prohibited Use of Nemours¿ Data. NemoursLink Partner agrees it will not access or use the Nemours¿ Data for any purpose other than those set forth in paragraph 5 above and that if NEMOURS determines that NemoursLink Partner has accessed or used Nemours¿ Data in a prohibited or unlawful manner, NEMOURS may unilaterally terminate all access and seek any such other relief as appropriate. Specifically, NemoursLink Partner may not:
(a) Sell, disclose to any third party, transfer to any third party, or otherwise permit or facilitate third-party access to the Nemours¿ Data
(b) Transmit in any way Nemours¿ Data obtained through the Service for any purpose other than those listed in paragraph 5;
(c) Use any Nemours¿ Data with the intent to negatively impact the competitive advantage of NEMOURS in the marketplace;
(d) Use or disclose the Nemours¿ Data other than as permitted by this Agreement.
7. Confidentiality of Nemours¿ Data. NemoursLink Partner understands that Nemours¿ Data includes confidential patient information, including protected health information (¿PHI¿) as defined by the Health Insurance Portability and Accountability Act, 45 C.F.R. §164.501, as amended, (¿HIPAA¿). NemoursLink Partner agrees to comply with HIPAA in its use of Nemours¿ Data and take all reasonable and necessary measures and precautions as required by HIPAA to insure security and privacy of the electronic Nemours¿ Data it accesses. Specifically, NemoursLink Partner agrees to:
(a) Report to the Technical Liaison any unauthorized use or disclosure of any portion of Nemours¿ Data of which NemoursLink Partner becomes aware;
(b) Advise patients requesting amendments to their medical records that the NemoursLink Partner does not have the authorization or the ability to alter their PHI and that any amendments or corrections to it must be accomplished by contacting NEMOURS directly;
(c) Take appropriate precautions to ensure that patients, visitors, or unauthorized personnel will not be able to see the computer screens during access to Nemours¿ Data;
(d) Make its internal practices, books, and records relating to the use and disclosure of PHI or Nemours¿ Data available to NEMOURS and, after notice to NEMOURS, the Secretary of Health and Human Services for the purposes of determining NEMOURS¿ compliance with privacy regulations;
(e) Document NemoursLink Partner¿s disclosures of Nemours¿ Data for treatment purposes or as otherwise permitted by this Agreement and provide this documentation to NEMOURS if requested;
(f) If it receives a request for disclosure of Nemours¿ Data from a court or governmental agency, NemoursLink Partner will immediately notify the Technical Liaison prior to any disclosure, in order to allow NEMOURS the opportunity to seek the appropriate protective order to protect Nemours¿ Data.
8. Obligations of NemoursLink Partner.
(a) Equipment and Supplies. NemoursLink Partner is solely responsible for the costs of the equipment, maintenance, and supplies required for access to and use of the Nemours¿ Data through the Service. Such costs include, but are not limited to, cost of acquisition, installation, operation and maintenance of personal computers and printers; costs related to wiring, hardware, software, phone charges, and Internet access services; and costs of ongoing equipment and supply upgrades.
(b) Identification of Users. Prior to obtaining access, NemoursLink Partner will provide a written list to the Technical Liaison identifying the Users who will be authorized by NemoursLink Partner to access Nemours¿ Data. All Users of a NemoursLink Partner must sign a NemoursLink User Agreement. Nemours will maintain all original, signed User Agreements in its office(s). NemoursLink Partner agrees that it will ensure that only Users access Nemours¿ Data pursuant to this Agreement, and that it will take steps to discontinue a User¿s access in the event it determines that the User improperly accessed or used Nemours¿ Data, or shared passwords with an individual not identified as a User in violation of law or this Agreement or the User Agreement, and notify the Technical Liaison of same. If additional Users are desired, or if a User needs to be removed for any reason, NemoursLink Partner will complete the NemoursLink Partner Access/Change Request form and contact the Technical Liaison to effect these changes.
(c) Ensure Appropriate Use of Service. NemoursLink Partner agrees to ensure that its Users sign the User Agreement and access the Nemours¿ Data in accordance with the terms of this Agreement, and the User Agreement. NemoursLink Partner agrees it will not change or alter the Service software in any way, and, in the event it suspects any problems related to unauthorized data alteration or destruction, to instruct its Users to immediately discontinue using the Service and report the problem to the Technical Liaison.
(d) Representations and Warranties. NemoursLink Partner represents that it is in compliance with all applicable state and federal laws and regulations governing the provision of healthcare to patients, and that neither it nor any of its Users, employees, agents, or officers has been debarred, penalized by, convicted, sanctioned, suspended, excluded or otherwise deemed ineligible to participate in any state or federal reimbursement program, including Medicaid or Medicare. In the event that NemoursLink Partner or any of its Users, employees, agents, or officers are sanctioned or excluded from participation in any state or federal reimbursement program as described above, NemoursLink Partner will immediately notify the Technical Liaison and NEMOURS may, in its sole discretion, terminate this Agreement and provide written notice to NemoursLink Partner.
9. Assignment. Neither this Agreement nor any of the rights herein may be assigned by NemoursLink Partner without the express, prior written approval of NEMOURS. NEMOURS may, without the consent of NemoursLink Partner, assign the rights and obligations herein to any entity affiliated with NEMOURS.
10. Relationship of the Parties. It is expressly understood and agreed that this Agreement is not intended to, and does not, create a joint venture, partnership, association, or other affiliation or business relationship between the parties. NEMOURS and NemoursLink Partner shall at all times be separate legal entities and are not liable for the debts or obligations of the other party.
11. Insurance and Indemnification. Each party agrees to obtain or fund at their own cost, appropriate professional liability and general insurance coverage with limits of no less than $1,000,000 per occurrence to insure itself and its employees against liability for claims brought by third parties in connection with its provision of healthcare services and performance of its duties and responsibilities under this Agreement. NemoursLink Partner agrees to indemnify, protect, save and hold harmless NEMOURS, its officers, employees and agents, from and against any and all losses, damages, injuries, claims, demands and expenses (including attorney¿s fees and legal expenses) of whatsoever kind and nature, arising on account of or related to any act, failure to act, willful misconduct or breach of this Agreement by NemoursLink Partner or one of its Users or officers, employees or agents resulting in liability and/or damages to NEMOURS. This provision shall survive termination of this Agreement.
12. Applicable Law and Disputes. This Agreement shall be construed, and the rights and liabilities of the parties determined, in accordance with the laws of the state of Florida, except with regard to the conflicts of law principles of the state of Florida to the extent they would apply the laws of another state to this Agreement. Venue shall lie in Duval County, Florida for any dispute arising out of this Agreement. If any dispute arises under this Agreement and results in litigation, the losing party shall pay the prevailing party all costs of litigation, including reasonable attorney¿s fees.
13. Survival of Certain Provisions. The obligations of the parties to this Agreement pertaining to insurance and indemnification, confidentiality and HIPAA compliance, and permitted and prohibited uses of Nemours¿ Data set forth in paragraphs 5, 6, 7, and 11 shall survive and continue beyond the termination of this Agreement.
14. Notices. Any notices required to be given under this Agreement to the Technical Liaison may be given verbally by calling (877) MYNEMOURS. All other notices required under this Agreement shall be in writing and may be delivered personally or shall be deemed to be delivered when deposited in the United States mail, postage prepaid, certified or registered mail, return receipt requested, addressed to the parties at the addresses indicated below, or at any address the parties may specify in writing later:
If to NEMOURS:
Nemours Children¿s Clinic
Attention: Electronic Medical Records
83 West Columbia Street
Orlando, FL 32806
15. Entire Agreement and Waiver. This Agreement constitutes the entire agreement between the parties and supersedes all other written or oral agreements with respect to the subject matter hereof. This Agreement may not be altered, amended or modified except as agreed in writing by the parties. No consent or waiver, express or implied, by either party in the performance by the other party of its obligations under this Agreement shall be deemed or construed to be a consent to or waiver of any other breach or default by the other party.
IN WITNESS HEREOF, the parties have executed this Agreement as of the day and year below.