HomeMy WebLinkAbout29173
COUNTY OF FRESNO
Fresno, CA
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AGREEMENT
THIS AGREEMENT is made and entered into this _____ day of ____________, 2017 by
and between the COUNTY OF FRESNO, a Political Subdivision of the State of California, hereinafter
referred to as “COUNTY”, and, Netsmart Technologies, Inc., a Delaware Corporation, whose address
is 4950 College Boulevard, Overland Park, Kansas 66212, hereinafter referred to as
“CONTRACTOR,” collectively, “the parties.”
W I T N E S S E T H:
WHEREAS, COUNTY is in need of an electronic medical records system for its Department of
Behavioral Health (DBH);
WHEREAS, CONTRACTOR can provide an electronic medical records system (Avatar)
including the hosting of the hardware, software, and database environment;
WHEREAS, CONTRACTOR can also provide subscription, software maintenance, and
technical support;
NOW, THEREFORE, in consideration of their mutual covenants and conditions, the parties
hereto agree as follows:
1. DEFINITIONS
As used in this Agreement, the following definitions apply to capitalized terms:
A. “Applicable Law” means, in the case of software compliance, Federal or State of
California law, rules or regulations that relate to the functionality of the Software. In all other cases
Applicable Law means Federal, State of California or local laws, rules and regulations that apply to the
conduct of CONTRACTOR’s general business operations.
B. “Encumbrance” means the process by which amounts payable under this
Agreement are posted to the COUNTY’s financial records for the payment then due under this
Agreement, reducing the related appropriations balance.
C. "Charges" means the amounts to be paid by COUNTY for the right to use the
Licensed Programs, for services provided to COUNTY and for hardware or other Third Party Products
acquired by COUNTY under the terms of this Agreement. The Charges and Payment Terms are
described in Schedule A.
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D. "Hardware Configuration" means the computer hardware required to install and
operate the Licensed Programs. A description of the recommended Hardware Configuration is set forth
in Schedule C attached hereto.
E. "COUNTY Database" means a collection of data records that are maintained as a
single logical area on a single computer system that is used, accessed, or acted upon by Licensed
Programs.
F. "Licensed Programs" means both the CONTRACTOR Programs and the Third
Party programs.
G. “COUNTY Resources” means the staff and other resources to be provided by
COUNTY for the installation and implementation of the Licensed Programs in accordance with the
Scope Document for Plexus Implementation Plan. Schedule D attached hereto sets forth the required
and available COUNTY Resources.
H. "Netsmart Programs" means the CONTRATOR’s computer programs in object
code form and their associated documentation. Schedule A lists separately the various modules of the
CONTRACTOR Programs purchased by COUNTY.
I. "Problem or Defect" means any failure of the Licensed Programs to operate in
substantial conformance with the Specifications.
J. “Scope Document for Plexus Implementation Plan” or “SOW” means the detailed
work plan attached hereto as Schedule B.
K. "Services" means the installation, training and other services to be provided by
CONTRACTOR as described in Schedule B.
L. "Specifications" means the description and features of the Licensed Programs as
set forth in the documentation relating to the Licensed Programs supplied to COUNTY by
CONTRACTOR hereunder and more particularly identified in Schedule F of this Agreement.
M. "Support Services" means the maintenance and support services to be provided by
CONTRACTOR in accordance with Schedule E.
N. “Third Party Products” means any product acquired by CONTRACTOR from an
outside vendor on behalf of COUNTY under the terms of this Agreement. Third Party Products
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consisting of software are called Third Party Programs. Third Party Products are described in Schedule
A.
2. LICENSED PROGRAMS
A. CONTRACTOR hereby grants COUNTY a non-exclusive, royalty-free, perpetual
(subject only to termination under Section 15) non-transferable license to use the Licensed Programs in
object code form only:
1) for COUNTY’s internal business purposes and not to process the data of
any other entity;
2) to support the number of COUNTY Databases and the number of named
users of the CONTRACTOR Programs set forth in Schedule A;
3) on the number of servers, operating system and for access by the
maximum number of simultaneous users or other such restrictions of the Third Party Products as set
forth in Schedule A;
The foregoing license grant may be exercised by COUNTY and its employees and
independent contractors (provided that such independent contractors undertake in writing to be bound by
all applicable restrictions in this Agreement) (collectively, “COUNTY Personnel”) on COUNTY’s
equipment for COUNTY’s internal business purposes provided they are added as named users for the
Licensed Programs.
B. Except as expressly stated in this Agreement, no other rights, express, implied or
otherwise are granted to COUNTY.
C. The Third Party Programs are licensed subject to the same restrictions as are set
forth in Section 2(a) above as well as such other restrictions as may be set forth in Schedule A.
D. Nothing in this Agreement will be deemed to convey any title or ownership
interest in the Licensed Programs to COUNTY. COUNTY acknowledges CONTRACTOR’s rights and
the rights of the owner of the Third Party Programs in the Licensed Programs and agrees that the
Licensed Programs are trade secrets and unpublished works on which CONTRACTOR and such third
party(s) hold and will hold the sole and exclusive copyright. COUNTY will not dispute the rights of
CONTRACTOR and the third party(s) in the Licensed Programs and will not sell, disclose, lease,
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sublease, lend or otherwise make the Licensed Programs available to others including third party hosting
providers.
E. No copies of the Licensed Programs may be made by COUNTY without the prior
written consent of CONTRACTOR except for backup purposes in accordance with normal data
processing practices. COUNTY agrees to reproduce any copyright notices and/or other proprietary
legends, regardless of form, contained in, affixed to, or appearing on the Licensed Programs.
F. COUNTY will not disassemble or reverse engineer any of the Licensed Programs
nor attempt to access or modify the source code version of the Licensed Programs and will not make any
derivations, adaptations, or translations of the Licensed Programs in whole or in part, nor use the
Licensed Programs to develop functionally similar computer software or to otherwise compete with
CONTRACTOR.
G. If suggestions made by COUNTY are incorporated into subsequent versions of
the Licensed Programs, COUNTY hereby assigns to CONTRACTOR all rights COUNTY may have in
and to any suggestions, concepts, or improvements concerning the Licensed Programs that may result
from COUNTY communications to CONTRACTOR.
H. Escrow Program. The license herein does not include any rights to the source
code for the CONTRACTOR Programs. CONTRACTOR has established a source code escrow
program with an affiliate of Iron Mountain Incorporated (“Escrow Agent”) under which it has deposited
a copy of the CONTRACTOR Program source code and source code documentation in electronic format
with the Escrow Agent. CONTRACTOR deposits with the Escrow Agent, updates, changes, alterations,
or modifications to the code for the CONTRACTOR Programs on a quarterly basis. If COUNTY elects
to receive the benefit of the Escrow Program, COUNTY will pay the annual subscription fee as stated in
Schedule A.
I. Upon CONTRACTOR’s request and with reasonable notice, COUNTY agrees to
provide CONTRACTOR with verification as to the number of users using the Licensed Programs or
allow CONTRACTOR or its authorized agent to independently audit COUNTY’s database to verify the
same. Should this verification identify usage of the Licensed Programs in excess of the number of
licensed users, COUNTY agrees to immediately pay CONTRACTOR’s invoice for the then-current
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prices for such Licensed Programs for each additional user license.
3. COMPLIANCE WITH APPLICABLE LAW & TERMS OF GRANT
A. Compliance with Law. In providing services under this Agreement,
CONTRACTOR shall comply with all Applicable Laws, regulations, and administrative requirements
adopted by Federal, State, and local governments including, but not limited to, Welfare and Institutions
Code, Divisions 5, 6, and 9; California Code of Regulations, Titles 9 and 22; any Short-Doyle and
Short-Doyle/Medi-Cal policies as identified in Department of Health Care Services letters and in the
Cost Reporting/Data Collection (CR/DC) Manual. In addition, if CONTRACTOR is providing Medi-
Cal services pursuant to this Agreement, CONTRACTOR shall comply with Title XIX of the Social
Security Act, and all other Applicable Laws, regulations and guidelines pertaining to Federally funded
mental health programs, including all requirements necessary for Medicaid/Medi-Cal reimbursement for
mental health treatment services.
B. Compliance with Terms of State and/or Federal Grants. If this Agreement is
funded with monies received by the COUNTY pursuant to contract(s) with the State and/or Federal
government in which the COUNTY is the grantee, CONTRACTOR will comply with all provisions of
said contract(s), to the extent applicable to CONTRACTOR as a subguarantee under said contract(s),
and said provisions shall be deemed a part of this Agreement as if fully set forth herein. Upon request,
COUNTY will deliver a copy of said contract(s) to CONTRACTOR at no cost to CONTRACTOR.
4. HARDWARE
CONTRACTOR will be responsible for all hardware necessary to host the database,
application, and provide remote access to the Avatar suite of applications to COUNTY on
CONTRACTOR premises.
5. SCOPE OF SERVICE
A. The Summary of Scope of Services is as follows:
1) Provide software license subscriptions;
2) Provide software maintenance/support services including technical
support;
3) Provide professional services to include project management, software
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installation, data migration, training, and all support necessary to transition from a COUNTY-hosted
application and database environment to a CONTRACTOR-hosted application and database
environment which will be referred to as the Plexus Foundation; and
4) Provide recurring services and support associated with a CONTRACTOR-
hosted solution, which entails the management of the hardware, software, and database that will reside
on CONTRACTOR premises for access by COUNTY.
B. The details of Service is defined pursuant to the following sections of this
Agreement:
1) Schedule B: Scope of Work for Plexus Foundation Implementation
Services – details the roles and responsibilities associated with migration from a COUNTY-hosted
solution to the Plexus Foundation.
2) Schedule C: Hardware Configuration – details the minimum COUNTY
hardware requirements to remotely access the Avatar software and database hosted by CONTRACTOR.
3) Schedule D: COUNTY Resource Requirement – COUNTY
responsibilities for the implementation of the Netsmart Programs during implementation.
4) Schedule E: Support Services – defines the recurring technical support
and maintenance services provided by CONTRACTOR during the term of this Agreement.
5) Schedule F: Specifications - Documentation provisions details COUNTY
entitlement as part of the implementation services.
6) Schedule G: Confidentiality of Patient Information
7) Schedule H: Qualified Service Organization/Business Associates
Agreement
8) Schedule I: Netsmart Hosting Addendum – Description of the Services
and infrastructure provided under hosting components and hosting scope of services agreement
9) Schedule J: Netsmart Subscription Products Addendum – Description of
the Services and infrastructure provided for subscription-based solutions as well as the Service Level
Agreement for said solutions
6. TERM OF AGREEMENT
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A. The license term granted by this Agreement is perpetual.
B. The initial term, during which CONTRACTOR shall provide implementation,
maintenance and support services for the system as described in this Agreement and attached Exhibits,
shall commence with the Effective Date of this Agreement and continue for a period of five (5) years
and until the 30th day of June, 2022.
C. If this Agreement includes options for renewal or extension, CONTRACTOR
must commence negotiations for rate changes a minimum of ninety days (90) prior to the expiration of
this Agreement. Both parties must agree to any rate changes in writing.
7. COMPENSATION AND PAYMENTS
A. Maximum Contract Amount
The maximum amount under this Agreement for the initial term (July 1, 2017
through June 30, 2018) shall not exceed One Million Eight Hundred Sixty-Six Thousand Two Hundred
Thirty-Four and No/100 Dollars ($1,866,234.00).
The maximum amount under this Agreement for the second period (July 1, 2018
through June 30, 2019) shall not exceed One Million Four Hundred Fifty-One Thousand One Hundred
Seventy-One and No/100 Dollars ($1,451,171.00).
The maximum amount under this Agreement for the third period (July 1, 2019
through June 30, 2020) shall not exceed One Million Four Hundred Sixty-One Thousand Eight Hundred
Ninety-One and No/100 Dollars ($1,461,891.00).
The maximum amount under this Agreement for the fourth period (July 1, 2020
through June 30, 2021) shall not exceed One Million Four Hundred Seventy-Two Thousand Nine
Hundred Thirty-Three and No/100 Dollars ($1,472,933.00).
The maximum amount under this Agreement for the fifth period (July 1, 2021
through June 30, 2022) shall not exceed One Million Four Hundred Eighty-Four Thousand Three
Hundred Six and No/100 Dollars ($1,484,306.00).
In no event shall the maximum contract amount for the services provided by the
CONTRACTOR to COUNTY under the terms and conditions of this Agreement be in excess of Seven
Million Seven Hundred Thirty-Six Thousand Five Hundred Thirty-Five and No/100 Dollars
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($7,736,535.00) during the total five (5) year term of this Agreement.
B. In consideration of the licenses granted hereunder, Services to be performed and
Third Party Products to be provided by CONTRACTOR. COUNTY agrees to pay CONTRACTOR the
Charges at the times and in the amounts set forth in Schedule A.
With the exception of the initial invoice which is due upon Agreement signing
and Encumbrance, undisputed invoices are payable in accordance with Section 7(e) below. Failure to
make timely payment is considered a material default of this Agreement.
C. Negotiations for rate changes shall be commenced, by CONTRACTOR, a
minimum of ninety days (90) prior to the renewal date of this Agreement, and subject to the maximum
rate increase as defined in Schedule A.
D. Invoice amounts shall be billed directly to the ordering department.
E. CONTRACTOR shall reference this Agreement number on all invoices submitted
to the COUNTY. The invoice shall set forth the amounts. CONTRACTOR shall submit such invoice
periodically or at the completion of services, but in any event, not later than claimed by CONTRACTOR
for the previous period, together with an itemized basis for the amounts claimed, and such other
information pertinent to the invoice. The COUNTY shall certify the invoice, either in the requested
amount or in such other amount as the COUNTY approves in conformity with this Agreement.
Payments shall be made by COUNTY to CONTRACTOR within forty-five (45) days after the date of
receipt and approval by COUNTY of the invoice.
8. TAXES
The Charges set forth in this Agreement do not include any taxes. The COUNTY is not
subject to pay any taxes on Charges set forth in this Agreement.
9. INDEMNIFICATION
A. Indemnification by CONTRACTOR: Intellectual Property Infringement. In the
event of any claim by a third party against COUNTY (the “Claim”), alleging that the use of the Licensed
Programs infringes upon any intellectual property rights of such third party, COUNTY will promptly
notify CONTRACTOR and CONTRACTOR will defend COUNTY and its officers, agents, and
employees against such Claim in COUNTY’s name but at CONTRACTOR’s expense, and will
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indemnify and hold harmless COUNTY against any liability paid by COUNTY, including but not
limited to attorneys' fees and disbursements, arising out of such Claim. In the event such an
infringement is found and CONTRACTOR cannot either procure the right to continued use of the
Licensed Programs, or, within forty-five (45) days of such finding, and, if CONTRACTOR has a right to
appeal, the exhaustion of those rights by CONTRACTOR, (unless such period is extended by
COUNTY), replace or modify the Licensed Programs with a non-infringing program of comparable
quality and functionality, then CONTRACTOR shall terminate the license of the Licensed Programs,
and will refund to COUNTY all fees, including license and professional service fees, paid by COUNTY,
pursuant to this Agreement, reduced by 1/36th for each full month from the date of first use of the
Licensed Programs, until the date of termination. CONTRACTOR will not have any liability under
Section 10(b), and CONTRACTOR will be indemnified by COUNTY with respect to any Claim, to the
extent that the Claim is based upon (i) the use of the Licensed Programs in combination with other
products or services not made or furnished by CONTRACTOR, provided that the Licensed Programs
alone are not the cause of such Claim; or (ii) the modification of the Licensed Programs or any portion
thereof by anyone other than CONTRACTOR, provided that the Licensed Programs in unmodified form
are not the cause of such Claim.
B. Indemnification by CONTRACTOR: Other Claims. CONTRACTOR shall
indemnify, defend, and hold harmless COUNTY, its officers, agents, and employees, from and against
any and all claims by a third party and any and all liabilities and losses incurred by COUNTY on
account of such claims(including damages to property and injuries to or death of persons, court costs,
and reasonable attorneys’ fees) caused by CONTRACTOR’s negligence or willful misconduct in
connection with the performance of this Agreement, unless such claims, liabilities, or losses arise out of
the sole negligence or willful misconduct of COUNTY. “CONTRACTOR’s performance” includes
CONTRACTOR’s acts or omissions and the acts or omissions of CONTRACTOR’s officers,
employees, agents and subcontractors.
C. Indemnification by COUNTY: Failure to Use Licensed Programs as Permitted.
COUNTY will indemnify and hold harmless CONTRACTOR from and against all claims, suits or
actions by any third party against CONTRACTOR (the “Claims”) relating to, arising out of or resulting
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from COUNTY’s failure to use the Licensed Programs as permitted under this Agreement, or any claim
by any party receiving services from COUNTY (“Claim for Services”). CONTRACTOR shall provide
COUNTY with prompt notice of any such Claims or Claim for Services, allow COUNTY sole control of
the defense, and shall fully cooperate with COUNTY in defending the Claims or Claim for Services.
10. WARRANTIES
A. Licensed Programs. CONTRACTOR warrants that the Licensed Programs will
substantially conform in all material respects with the requirements of this Agreement and their
Specifications. If a Problem or Defect occurs while COUNTY is receiving Support Services,
CONTRACTOR will correct the Problem or Defect in accordance with the Support Services provisions
set forth in Schedule E.
B. Infringement. CONTRACTOR further represents and warrants that it has the right
to grant the licenses granted to COUNTY hereunder and that to the best of CONTRACTOR’s
knowledge the Licensed Programs do not infringe upon or violate the United States patent rights of any
third party and do not infringe upon or violate the copyright, or trade secret right of any third party.
C. The limited warranty described under Section 10(a) will not apply unless the
COUNTY’s hardware and software system components meet CONTRACTOR’s minimum requirements
as described in Schedule C.
D. Third Party Programs. In the event CONTRACTOR provides any Third Party
Programs to COUNTY in connection with this Agreement, the following shall apply: (1)
CONTRACTOR shall specifically identify in writing all Third Party Programs in Schedule A; (2)
CONTRACTOR shall attach to Schedule A written copies of all third party license agreements
applicable to COUNTY; and (3) CONTRACTOR warrants that (i) it has the right to license any Third
Party Programs licensed to COUNTY under this Agreement; (ii) to the best of CONTRACTOR’s
knowledge, the Third Party Programs do not, and the use of the Third Party Programs by COUNTY as
contemplated by this Agreement will not, infringe any intellectual property rights of any third party, and
(iii) unless specifically provided otherwise herein, COUNTY shall have no obligation to pay any third
party any fees, royalties, or other payments for COUNTY’s use of any Third Party Programs in
accordance with the terms of this Agreement. CONTRACTOR shall support and maintain all such Third
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Party Programs to the same extent as the Licensed Programs.
Viruses and Disabling Mechanisms. CONTRACTOR shall use commercially
reasonable measures to screen the Licensed Programs to avoid introducing any virus or other destructive
programming that are designed (1) to permit unauthorized access or use by third parties to the software
installed on COUNTY’s systems, or (ii) to disable or damage COUNTY’s systems. CONTRACTOR
shall not insert into the Licensed Programs any code or other device that would have the effect of
disabling or otherwise shutting down all or any portion of the Licensed Programs. CONTRACTOR shall
not invoke such code or other device at any time, including upon expiration or termination of this
Agreement for any reason.
E. Services. CONTRACTOR warrants that all services provided by CONTRACTOR
to COUNTY under this Agreement shall be performed in a workmanlike manner.
F. No Litigation. CONTRACTOR further warrants there is no pending or threatened
litigation that would have a material adverse impact on its performance under this Agreement.
G. Compliance with Applicable Law. CONTRACTOR warrants that the services
provided under this Agreement and COUNTY’s permitted use of the Licensed Programs shall comply
with applicable Federal, State, and local laws and regulations.
H. Authority. CONTRACTOR has the full power, capacity and authority to enter
into and perform this Agreement and to make the grant of rights contained herein.
11. LIMITATION OF WARRANTY
The foregoing warranties are in lieu of all other warranties and conditions express or
implied, whether in relation to the Licensed Programs, hardware or the provision of any services
including, but not limited to, those concerning merchantability and fitness for a particular purpose or
arising by trade usage or course of dealing. COUNTY’s exclusive remedy in the event of a breach of
the Section 10(a) warranty and CONTRACTOR’s sole obligation is to modify the software to eliminate
the problem or defect. COUNTY’s exclusive remedy in the event of a breach of the Section 10(b)
warranty is set forth in Section 9.
12. LIMITATIONS OF LIABILITY
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A. Limitation on Specified Damages. Except for breach of the warranty in Section
10(b) (Infringement), and the parties’ respective express indemnity obligations in this Agreement
including in Section 9 (Indemnification), in Schedule G and Schedule H, in no event will either party be
liable to the other for any indirect, special, incidental, consequential, punitive, or exemplary damages
(including damages related to delays, loss of data, interruption of service or loss of business or profits or
revenue), even if the party has been advised of the possibility of such damages and regardless of whether
any remedy fails of its essential purpose.
B. Limitation on Cumulative Liability. Except for the parties’ respective express
indemnity obligations in Section 9 (Indemnification), in Schedule G and Schedule H the cumulative
liability of one party to the other party for any actual or alleged damages arising out of, based on or
relating to this Agreement, whether based upon breach of contract, tort (including negligence), warranty
or any other legal theory, will not exceed the total fees paid by COUNTY to CONTRACTOR under this
Agreement or $2,000,000, whichever is greater.
13. INSURANCE
A. Evidence of Coverage: Prior to commencement of this Agreement, the
CONTRACTOR shall provide a “Certificate of Insurance” certifying that coverage as required herein
has been obtained. Individual endorsements executed by the insurance carrier shall accompany the
certificate. In addition, a certified copy of the policy or policies shall be provided by the
CONTRACTOR upon request.
This verification of coverage shall be sent to the County of Fresno, Department of
Behavioral Health, 3133 N. Millbrook Avenue, Fresno, California 93703, Attention: Contracts Division,
unless otherwise directed. The CONTRACTOR shall not receive a “Notice to Proceed” with the work
under this Agreement until it has obtained all insurance required and such insurance has been approved
by the COUNTY. This approval of insurance shall neither relieve nor decrease the liability of the
CONTRACTOR.
B. Qualifying Insurers: All coverages, except surety, shall be issued by companies
which hold a current policy holder’s alphabetic and financial size category rating of not less than A FSC
VII, according to the current Best’s Key Rating Guide or a company of equal financial stability that is
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approved by the COUNTY.
C. Insurance Coverage Requirements: Without limiting CONTRACTOR’s duty to
indemnify, CONTRACTOR shall maintain in effect throughout the term of this Agreement a policy or
policies of insurance with the following minimum limits of liability:
1) Commercial General Liability
Commercial General Liability Insurance with limits of not less than Two
Million Dollars ($2,000,000) per occurrence and an annual aggregate of
Five Million Dollars ($5,000,000). This policy shall be issued on a per
occurrence basis. COUNTY may require specific coverage including
completed operations, product liability, contractual liability, Explosion,
Collapse, and Underground (XCU), fire legal liability or any other liability
insurance deemed necessary because of the nature of the Agreement.
2) Automobile Liability
Comprehensive Automobile Liability Insurance with limits for bodily
injury of not less than Two Hundred Fifty Thousand Dollars ($250,000)
per person, Five Hundred Thousand Dollars ($500,000) per accident and
for property damages of not less than Fifty Thousand Dollars ($50,000), or
such coverage with a combined single limit of One Million Dollars
($1,000,000). Coverage should include owned and non-owned vehicles
used in connection with this Agreement.
3) Real and Property Insurance
CONTRACTOR shall maintain a policy of insurance for all risk personal
property coverage which shall be endorsed naming the County of Fresno
as an additional loss payee. The personal property coverage shall be in an
amount that will cover the total of the COUNTY purchase and owned
property.
All Risk Property Insurance
CONTRACTOR will provide property coverage for the full replacement
value of the COUNTY’S personal property in possession of
CONTRACTOR and/or used in the execution of this Agreement.
COUNTY will be identified on an appropriate certificate of insurance as
the certificate holder and will be named as an Additional Loss Payee on
the Property Insurance Policy.
4) Professional Liability
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If CONTRACTOR employs licensed professional staff (e.g. Ph.D., R.N.,
L.C.S.W., M.F.T.) in providing services, Professional Liability Insurance
with limits of not less than One Million Dollars ($1,000,000) per
occurrence, Three Million Dollars ($3,000,000) annual aggregate.
CONTRACTOR agrees that it shall maintain, at its sole expense, in full
force and effect for a period of three (3) years following the termination of
this Agreement, one or more policies of professional liability insurance
with limits of coverage as specified herein.
5) Worker's Compensation
A policy of Worker's Compensation Insurance as may be required by the
California Labor Code.
D. Other Insurance Requirements: All insurance required by this Agreement shall be
with a company acceptable to the COUNTY and issued and executed by an admitted insurer authorized
to transact Insurance business in the State of California. Unless otherwise specified by this Agreement,
all such insurance shall be written on an occurrence basis, or, if the policy is not written on an
occurrence basis, such policy with the coverage required herein shall continue in effect for a period of
three years following the date CONTRACTOR completes its performance of services under this
Agreement.
E. Each liability policy shall provide that the COUNTY shall be given notice in
writing at least thirty days in advance of any endorsed reduction in coverage or limit, cancellation, or
intended non-renewal thereof. Each policy shall provide coverage for CONTRACTOR and additional
insureds with respect to claims arising from each subcontractor, if any, performing work under this
Agreement, or be accompanied by a certificate of insurance from each subcontractor showing each
subcontractor has identical insurance coverage to the above requirements.
F. Commercial general liability and automobile liability policies shall provide an
endorsement naming the County of Fresno, its officers, agents, and employees as Additional Insureds
with respect to liability arising out of the CONTRACTOR’s work, including ongoing and completed
operations, and shall further provide that such insurance is primary insurance to any insurance or self-
insurance maintained by the COUNTY and that the insurance of the Additional Insureds shall not be
called upon to contribute to a loss covered by the CONTRACTOR’s insurance.
G. Within thirty (30) days from the date CONTRACTOR signs this Agreement,
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CONTRACTOR shall file certificates of insurance with the County of Fresno, Department of Behavioral
Health, 3133 N. Millbrook Avenue, Fresno, California 93703, Attention: Contracts Division, showing
that the CONTRACTOR has in effect the insurance required by this Agreement. The insurance shall not
be cancelled or changed without a minimum of thirty (30) days advance written notice given to
COUNTY. The CONTRACTOR shall file a new or amended certificate of insurance within five
calendar days after any change is made in any insurance policy, which would alter the information on
the certificate then on file. Acceptance or approval of insurance shall in no way modify or change the
indemnification clause in this Agreement, which shall continue in full force and effect.
H. CONTRACTOR shall at all times during the term of this Agreement maintain in
force the insurance coverage required under this Agreement and shall send, without demand by
COUNTY, annual certificates to County of Fresno, Department of Behavioral Health, 3133 N.
Millbrook Avenue, Fresno, California 93703, Attention: Contracts Division. If the certificate is not
received by the expiration date, COUNTY shall notify CONTRACTOR and CONTRACTOR shall have
five calendar days to send in the certificate, evidencing no lapse in coverage during the interim. Failure
by CONTRACTOR to maintain such insurance is a default of this Agreement, which entitles COUNTY,
at its sole discretion, to terminate this Agreement immediately.
14. ACCESS TO AND AUDIT OF RECORDS
A. Maintenance of Records. CONTRACTOR shall maintain records indicating the
nature and extent of all services performed and all payments received under this Agreement for a period
of five (5) years after completion of all services pursuant to this Agreement or until all disputes, claims,
litigation, or audits have been resolved, whichever occurs later. CONTRACTOR shall maintain such
records in a form comforting with generally accepted standards and applicable law. Government Code §
8546.7 makes any expenditure of public funds over $10,000 subject to the examination and audit of the
State Auditor for a period of three (3) years after final payment under the Agreement.
B. Right to Inspect Records. The COUNTY, State Department of Health Care
Services, the Comptroller General of the United States, the U.S. Department of Health and Human
Services, and other authorized Federal and State agencies shall have the right to inspect any and all
books, records, and facilities maintained by CONTRACTOR during normal business hours to evaluate
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the use of funds and the cost, quality, appropriateness, and timeliness of services.
C. Overpayment. If the results of any audit show that the funds paid to
CONTRACTOR under this Agreement exceeded the amount due, then CONTRACTOR shall pay the
excess amount to COUNTY in cash not later than sixty (60) days after the final audit settlement; or, at
COUNTY’s election, COUNTY may recover the excess or any portion of it by offsets made by
COUNTY against any payment(s) owed to CONTRACTOR under this or any other Agreement.
D. Responsibility for Audit Exceptions. Any and all audit exceptions by COUNTY
or any state or federal agency resulting from an audit of CONTRACTOR's performance of this
Agreement, or actions by CONTRACTOR, its officers, agents, and employees shall be the sole
responsibility of the CONTRACTOR.
15. TERMINATION
A. Termination without Cause. The COUNTY reserves the right to cancel this
Agreement, or any extension of this Agreement, without cause, with a thirty day (30) written notice.
B. Termination for Cause. Either party may terminate this Agreement for cause, if
the other party is in default of any of its material obligations hereunder, and has not commenced cure
within thirty (30) days after receiving written notice of default, and affected the cure within ninety (90)
days of receipt of notice of default from CONTRACTOR. In the event cure cannot reasonably be
affected within ninety (90) days, a party may choose not to cancel this Agreement if the other party acts
diligently during the ninety (90) day period following its receipt of notice and completes the cure
promptly thereafter.
C. Termination or Amendment in Response to Reduction of Government Funding.
Notwithstanding any other provision of this Agreement, if Federal, State or local government terminates
or reduces its funding to the COUNTY for services that are to be provided under this Agreement,
COUNTY, in its sole and absolute discretion after consultation with the CONTRACTOR, may elect to
terminate this Agreement by giving written notice of termination to CONTRACTOR effective
immediately or on such other date as COUNTY specifies in the notice. Alternatively, COUNTY and
CONTRACTOR may mutually agree to amend this Agreement in response to a reduction in Federal,
State or local funding.
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D. In the event of termination for convenience pursuant to Section 15 (a)
CONTRACTOR shall within thirty (30) days of receipt of notice of termination for convenience submit
to the COUNTY all outstanding invoices for services provided prior to the effective date of the
termination for convenience. Payment shall be made by the COUNTY to the CONTRACTOR within
forty-five (45) days after the date of receipt and approval by COUNTY. The COUNTY shall pay any
undisputed invoices in accordance with Section 7(d) above.
E. In the event this Agreement is terminated pursuant to Section 15(b) solely due to a
breach by COUNTY of license rights contained in Section 2, COUNTY will, within thirty (30) days of
the date of termination of this Agreement, erase from all computer storage any image or copies of the
Licensed Programs, related specifications and documentation and will certify in writing to
CONTRACTOR that the original and all copies of such property have been destroyed.
F. Upon Termination of this Agreement for any reason specified in this Section,
CONTRACTOR will provide a machine-readable copy of the Data available to COUNTY within thirty
(30) days of termination of this Agreement.
G. Notwithstanding any termination of this Agreement for any reason, the terms and
conditions set forth in the following Sections of this Agreement will survive and will be binding on the
representatives, successors, heirs and assignees of the parties:
1) Section 9 Indemnifications
2) Section 12 Limitation of Warranty
3) Section 13 Professional Liability Insurance Tail Coverage
4) Section 14. Access to and Audit of Records
5) Section 15 Termination
6) Section 16 Confidentiality
7) Section 18 Non-Hiring
8) Section 20 General Provisions
9) Schedule G Confidentiality of Patient Information
10) Schedule H. Business Associate Agreement
16. CONFIDENTIALITY
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A. Except where disclosure is required by law, including disclosures pursuant to a
request under the California Public Records Act, each Party agrees that all information supplied by one
Party and its affiliates and agents (collectively, the “Disclosing Party”) to the other (“Receiving Party”)
including, without limitation, (a) source code, prices, trade secrets, mask works, databases, designs and
techniques, models, displays and manuals; (b) any unpublished information concerning research
activities and plans, marketing or sales plans, sales forecasts or results of marketing efforts, pricing or
pricing strategies, costs, operational techniques, or strategic plans, and unpublished financial
information, including information concerning revenues, profits, and profit margins; (c) any information
relating to customers, patients, business partners, or personnel; (d) Patient Information (as defined in
Schedule H), and (e) Protected Health Information (as defined in 45 C.F.R. § 160.103), will be deemed
confidential and proprietary to the Disclosing Party, regardless of whether such information was
disclosed intentionally or unintentionally or marked as “confidential” or “proprietary” (“Confidential
Information”). The foregoing definition shall also include any Confidential Information provided by
either Party’s contractors, subcontractors, agents, or vendors. To be deemed “Confidential
Information”, trade secrets and mask works must be plainly and prominently marked with restrictive
legends.
B. Each Party recognizes the importance of the other Party’s Confidential
Information. In particular, each Party recognizes and agrees that the Confidential Information of the
other is critical to their respective businesses and that neither Party would enter into this Agreement
without assurance that such information and the value thereof will be protected as provided in this
Section 16 (Confidentiality), Section 17 (Intellectual Property Rights) and elsewhere in this Agreement.
Accordingly, each Party agrees as follows: (a) the Receiving Party will hold any and all Confidential
Information it obtains in strictest confidence and will use and permit use of Confidential Information
solely for the purposes of this Agreement. Without limiting the foregoing, the Receiving Party shall use
at least the same degree of care, but no less than reasonable care, to avoid disclosure or use of this
Confidential Information as the Receiving Party employs with respect to its own Confidential
Information of a like importance; (b) the Receiving Party may disclose or provide access to its
responsible employees, agents, and consultants who have a need to know and may make copies of
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Confidential Information only to the extent reasonably necessary to carry out its obligations hereunder;
and (c) the Receiving Party currently has, and in the future will maintain in effect and enforce, rules and
policies to protect against access to or use or disclosure of Confidential Information other than in
accordance with this Agreement, including without limitation written instruction to and agreements with
employees, agents, or consultants who are bound by an obligation of confidentiality no less restrictive
than set forth in this Agreement to ensure that such employees, agents, and consultants protect the
confidentiality of Confidential Information, including Section 16 (Confidentiality), Section 17
(Intellectual Property Rights). The Receiving Party will require its employees, agents, and consultants
not to disclose Confidential Information to third-parties, including without limitation customers,
subcontractors, or consultants, without the Disclosing Party’s prior written consent, will notify the
Disclosing Party immediately of any unauthorized disclosure or use, and will cooperate with the
Disclosing Party to protect all proprietary rights in and ownership of its Confidential Information.
C. During the course of this Agreement, CONTRACTOR and COUNTY agree not to
discuss the project with any person who does not have a need to know that information for a
constructive purpose that will positively impact completion of the Implementation Plan.
D. CONTRACTOR recognizes and acknowledges the sensitive and confidential
nature of information it may obtain with regard to COUNTY and the treatment services that it provides,
and agrees that information with respect to COUNTY’s treatment services will be governed by Schedule
G and Schedule H.
17. INTELLECTUAL PROPERTY RIGHTS
A. All data provided by COUNTY belongs to COUNTY. All records compiled by
CONTRACTOR in completing the work described in this Agreement, including but not limited to
written reports, studies, drawings, blueprints, negatives of photographs, graphs, charts, plans, COUNTY
specific table and dictionary codes, configuration specifications and all other similar recorded data, shall
become and remain the property of COUNTY. Use or distribution of COUNTY data by
CONTRACTOR is prohibited unless CONTRACTOR obtains prior written consent from COUNTY.
B. For systems hosted or stored on equipment not owned by COUNTY,
CONTRACTOR will ensure that COUNTY has full access to its data 24 hours each day, 7 days each
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week, and 365 days each year. Upon Termination of this Agreement for any reason, CONTRACTOR
will provide a machine-readable copy of the Data available to COUNTY within thirty (30) days of
termination of this Agreement.
Notwithstanding anything to the contrary contained in this Agreement, it is
understood and agreed that CONTRACTOR shall retain all of its rights in its proprietary information
including, without limitation, methodologies and methods of analysis, ideas, concepts, expressions,
know how, methods, techniques, skills, knowledge and experience possessed by CONTRACTOR prior
to this Agreement.
18. NON-HIRING
During the term of this Agreement and for a period of one (1) year following its
termination, neither party will directly or indirectly solicit for employment or as a consultant, an
employee or consultant of the other party, or any person who was an employee or consultant of the other
party at any time during the twelve (12) month period immediately prior to the date such employee or
consultant is solicited, hired or retained.
19. FORCE MAJEURE
Neither party will be responsible for delays or failures in performance resulting from acts
or events beyond its reasonable control, including but not limited to, acts of nature, governmental
actions, acts of terrorism, fire, labor difficulties or shortages, civil disturbances, transportation problems,
interruptions of power supply or communications or natural disasters, provided such party takes
reasonable efforts to minimize the effect of such acts or events.
20. GENERAL PROVISIONS
A. Governing Law. This Agreement will be construed in accordance with the laws of
the State of California, without giving effect to the conflict of law rules thereof. Both parties agree this
Agreement does not constitute a consumer transaction.
B. Entire Agreement. This Agreement and the schedules and exhibits attached hereto
contain the entire understanding of the parties with respect to the matter contained herein. There are no
promises, covenants or undertakings contained in any other writing or oral communication. In the event
of any conflict between or among the documents comprising this Agreement, the latest dated document
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will prevail.
C. Amendments. This Agreement may not be amended or modified except in a
writing signed by authorized representatives of the parties.
D. Waiver. A waiver of a breach or default under this Agreement will not be a
waiver of any subsequent breach or default. Failure of either party to enforce compliance with any term
or condition of this Agreement will not constitute a waiver of such term or condition.
E. Insolvency. In the event that either party will cease conducting business in the
normal course, becomes insolvent, makes a general assignment for the benefit of creditors, suffers or
permits the appointment of a receiver for its business or assets, or avails itself of, or becomes subject to,
any proceeding under a Bankruptcy Act or any other statute of any state relating to insolvency or the
protection of rights of creditors, then (at the option of the other party) this Agreement will terminate and
be of no further force and effect and any property or rights of such other party, whether tangible or
intangible, will forthwith be returned to it.
F. Assignment. The license granted hereunder to COUNTY may not be assigned, or
sublicensed, or shared, nor may COUNTY use the Licensed Programs to provide the software features
as a service (Software as a Service) to a third party, whether for the benefit of COUNTY or others,
without the written consent of CONTRACTOR. CONTRACTOR may not assign, sell, or otherwise
transfer its interest or obligations in this Agreement without the prior written consent of the COUNTY.
The assignment of this Agreement to a majority owned affiliate of CONTRACTOR or
CONTRACTOR’s parent corporation will not require consent of COUNTY, provided CONTRACTOR
provides thirty (30) days prior notice to COUNTY. COUNTY may, however, assign all of its rights
under this Agreement to an assignee who acquires all or substantially all of the assets of COUNTY, is
not a competitor of CONTRACTOR, and has financial resources at least equal to those of COUNTY.
Any permitted assignee will assume in writing, all obligations of the assignor.
G. Dispute Resolution. The parties will use reasonable efforts, including, without
limitation, face-to-face negotiations, to resolve any differences arising between them as a result of this
Agreement prior to exercising their respective rights at law or equity.
H. Severability. If any provision of this Agreement is found to be invalid, illegal or
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unenforceable under any applicable statute or law, it is to that extent deemed to be omitted, and the
remaining provisions of this Agreement will not be affected in any way.
I. This Agreement may be executed in two or more counterparts, each of which will
be deemed an original.
J. Headings. The headings of the paragraphs and sections of this Agreement are for
convenience only and will not control or affect the meaning or construction of any provision of this
Agreement.
K. Compliance with Laws. The parties agree to comply with all laws and
regulations, including all United States and multilateral export laws and regulations, to assure that the
Licensed Programs are not exported, directly or indirectly, in violation of law.
L. Non-Exclusive Agreement. This Agreement is non-exclusive and both COUNTY
and CONTRACTOR expressly reserve the right to contract with other entities for the same or similar
services.
21. NOTICES
Notices required to be given to the respective parties under this Agreement shall be
deemed given by any of the following means: (1) when personally delivered to the COUNTY’s contract
administrator or to CONTRACTOR’s responsible officer; (2) when personally delivered to the party’s
principal place of business during normal business hours, by leaving notice with any person apparently
in charge of the office and advising such person of the import and contents of the notice; (3) 24 hours
after the notice is transmitted by FAX machine to the other party, at the party’s FAX number specified
pursuant to this Agreement, provided that the party giving notice by FAX must promptly confirm receipt
of the FAX by telephone to the receiving party’s office; or, (4) three (3) days after the notice is
deposited in the U. S. mail with first class or better postage fully prepaid, addressed to the party as
indicated below.
Notices mailed or faxed to the parties shall be addressed as follows:
TO THE COUNTY:
Director, Fresno County
Department of Behavioral Health
3133 N. Millbrook Ave
Fresno, CA 93703
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TO THE CONTRACTOR:
Netsmart Technologies, Inc.
Corporate Counsel
4950 College Blvd
Overland Park, Kansas 66212
Contract_Notices@ntst.com
Tel. No.(800) 421-7503 Fax No.: (631) 968-2123
22. DISCLOSURE OF OWNERSHIP AND/OR CONTROL INTEREST
INFORMATION
This provision is only applicable if CONTRACTOR is a disclosing entity, fiscal agent, or
managed care entity as defined in Code of Federal Regulations (C.F.R), Title 42 § 455.101 455.104,
and 455.106(a)(1),(2).
In accordance with C.F.R., Title 42 §§ 455.101, 455.104, 455.105 and 455.106(a)(1),(2),
the following information must be disclosed by CONTRACTOR by completing Exhibit K, “Disclosure
of Ownership and Control Interest Statement”, attached hereto and by this reference incorporated herein
and made part of this Agreement. CONTRACTOR shall submit this form to the Department of
Behavioral Health within thirty (30) days of the effective date of this Agreement. Additionally,
CONTRACTOR shall report any changes to this information within thirty five (35) days of occurrence
by completing Exhibit K, “Disclosure of Ownership and Control Interest Statement.” Submissions shall
be scanned pdf copies and are to be sent via email to DBHAdministration@co.fresno.ca.us attention:
Contracts Administration.
23. DISCLOSURE – CRIMINAL HISTORY AND CIVIL ACTIONS
CONTRACTOR is required to disclose if any of the following conditions apply to them,
their owners, officers, corporate managers and partners (hereinafter collectively referred to as
“CONTRACTOR”):
A. Within the three-year period preceding this Agreement, they have been convicted
of, or had a civil judgment rendered against them for:
1) Fraud or a criminal offense in connection with obtaining, attempting to
obtain, or performing a public (Federal, State, or local) transaction or
contract under a public transaction;
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2) Violation of a Federal or State antitrust statute;
3) Embezzlement, theft, forgery, bribery, falsification, or destruction of
records; or
4) False statements or receipt of stolen property.
B. Within a three-year period preceding this Agreement, they have had a public
transaction (Federal, State, or local) terminated for cause or default.
Disclosure of the above information will not automatically eliminate
CONTRACTOR from further business consideration. The information will be considered as part of
the determination of whether to continue and/or renew this Agreement and any additional information
or explanation that a CONTRACTOR elects to submit with the disclosed information will be
considered. If it is later determined that the CONTRACTOR failed to disclose required information,
any contract awarded to such CONTRACTOR may be immediately voided and terminated for
material failure to comply with the terms and conditions of the award.
CONTRACTOR must sign a “Certification Regarding Debarment, Suspension,
and Other Responsibility Matters- Primary Covered Transactions” in the form set forth in Exhibit L,
attached hereto and by this reference incorporated herein and made part of this Agreement.
Additionally, CONTRACTOR must immediately advise the COUNTY in writing if, during the term of
this Agreement: (1) CONTRACTOR becomes suspended, debarred, excluded or ineligible for
participation in Federal or State funded programs or from receiving Federal funds as listed in the
excluded parties’ list system (http://www.epls.gov); or (2) any of the above listed conditions become
applicable to CONTRACTOR. CONTRACTOR shall indemnify, defend and hold the COUNTY
harmless for any loss or damage resulting from a conviction, debarment, exclusion, ineligibility or other
matter listed in the signed Certification Regarding Debarment, Suspension, and Other Responsibility
Matters.
24. DISCLOSURE OF SELF-DEALING TRANSACTIONS
This provision is only applicable if the CONTRACTOR is operating as a corporation (a
for-profit or non-profit corporation) or if during the term of this Agreement, the CONTRACTOR
changes its status to operate as a corporation.
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Members of the CONTRACTOR’s Board of Directors shall disclose any self-dealing
transactions that they are a party to while CONTRACTOR is providing goods or performing services
under this Agreement. A self-dealing transaction shall mean a transaction to which the CONTRACTOR
is a party and in which one or more of its directors has a material financial interest. Members of the
Board of Directors shall disclose any self-dealing transactions that they are a party to by completing and
signing a Self-Dealing Transaction Disclosure Form, attached hereto as Exhibit M and incorporated
herein by reference and made part of this Agreement, and submitting it to the COUNTY prior to
commencing with the self-dealing transaction or immediately thereafter.
25. ENTIRE AGREEMENT
This Agreement, including all Schedules and Exhibits, constitutes the entire agreement
between CONTRACTOR and COUNTY with respect to the subject matter hereof and supersedes all
previous agreement negotiations, proposals, commitments, writings, advertisements, publications, and
understandings of any nature whatsoever unless expressly included in this Agreement.
///
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1 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day
2 and year first hereinabove written.
3 AITEST
4 CONTRACTOR
5
6
COUNTY OF FRESNO
{LP~ By ____ ~~--~~---------7
8
9 Print Name: Jos e-?H (Y) c&o ve.tLJ
Chairman, Board of Supervisors
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Title: z -~ ?.ti£f ,·ve_ Vl CL-?JUSiD2AJ+-
Chairman of Board, or President
or any Vice President
Mailing Address:
4950 College Boulevard
Overland Park, KS 66211
Phone No. (31 0) 945-3350
Contact: Chief Executive Officer
BERNICE E . SEIDEL, Clerk
Board of Supervisors
PLEASE SEE ADDITIONAL
SIGNATURE PAGE ATTACHED
-26 -COUNTY OF FRESNO
Fresno, CA
12345678910111213141516171819202122232425262728APPROVEDASTOLEGALFORM:DANIELC.CEDERBORG,COUNTYCOUNSELBy/APPROVEDASTOACCOUNTINGFORM:OSCARJ.GARCIA,CPA,AUDITOR-CONTROLLER/TREASURER-TAXCOLLECTORBy(IPQJ*Q^REVIEWEDANDRECOMMENDEDFORAPPROVAL:DepartmentofBehavioralHealthFund/Subclass:0001/10000Organization:5630Account/Program:7295/027COUNTYOFFRESNOFresno,CA
Page 1 of 9 Netsmart Technologies, Inc. | 4950 College Blvd | Overland Park, KS 66211
Schedule A – Charges and Payment Terms for Committed Funds
The total maximum amount of this Agreement shall not exceed $7,736,535 for the service period of July 1, 2017 thru June 30,
2022 per the budget tables which define the Committed Funds found in Schedule A.
7/1/17
Thru
6/30/18
7/1/18
Thru
6/30/19
7/1/19
Thru
6/30/20
7/1/20
Thru
6/30/21
7/1/21
Thru
6/30/22
Annual
Maintenance
Fee
License Software
Maintenance and Support -
Renewals
Qty Period Fees Period
Fees Period Fees Period Fees Period Fees Total
Amount Payment Terms
Avatar Named User
Avatar Named User
Maintenance
Includes the following
Applications:
*CalPM Maintenance
*Avatar CWS
*Avatar E Signature
800 $212,139 $218,503 $225,058 $231,810 $238,764 $1,126,274
Billable upon the
first day of each
Fiscal Year
Escrow
$3,167 $3,262 $3,360 $3,461 $3,564 $16,814
Billable upon the
first day of each
Fiscal Year
Plexus Cloud Hosting
Plexus Cloud Hosting - Avatar
-
Disaster Recovery - Named
User 800 $355,200 $355,200 $355,200 $355,200 $355,200
$1,776,000
Billed Monthly
Plexus Cloud Hosting -
Perceptive -
Disaster Recovery - Named
User $2,849 $2,849 $2,849 $2,849 $2,849
$14,245
Billed Monthly
Page 2 of 9 Netsmart Technologies, Inc. | 4950 College Blvd | Overland Park, KS 66211
Plexus Cloud Hosting - Avatar
-Scriptlink $15,000 $15,000 $15,000 $15,000 $15,000 $75,000 Billed Monthly
ICD 10/DSM V Subscription
Diagnosis Content on
Demand
$8,769.12 $8,769.12 $8,769.12 $8,769.12 $8,769.12 $43,845.60
Billable upon the
first day of each
Fiscal Year
OrderConnect Subscriptions
OrderConnect Base Fee $1,500 $1,500 $1,500 $1,500 $1,500
$7,500
Billable upon the
first day of each
Fiscal Year
OrderConnect Inventory
Management $3,000 $3,000 $3,000 $3,000 $3,000
$15,000
Billable upon the
first day of each
Fiscal Year
OrderConnect Non-
Prescribing
User Subscription 33 $5,148 $5,148 $5,148 $5,148 $5,148
$25,740
Billable upon the
first day of each
Fiscal Year
OrderConnect -Full Suite -
Prescriber Subscription 51 $63,648 $63,648 $63,648 $63,648 $63,648
$318,240
Billable upon the
first day of each
Fiscal Year
myHealthPointe Client Portal
myHealthPointe Portal -
Level V Subscription 1000
Named Users - FY 2017
increase up to 1500 Named
Users $70,000 $70,000 $70,000 $70,000 $70,000
$350,000
Billed Monthly
myHealthPointe Kiosk
Subscription $9,000 $9,000 $9,000 $9,000 $9,000
$45,000
Billable upon the
first day of each
Fiscal Year
Page 3 of 9 Netsmart Technologies, Inc. | 4950 College Blvd | Overland Park, KS 66211
myHealthPointe Kiosk
Screenings - Add-on $6,000 $6,000 $6,000 $6,000 $6,000
$30,000
Billable upon the
first day of each
Fiscal Year
Perceptive
Avatar POS Scanning
Maintenance $1,900 $1,900 $1,900 $1,900 $1,900
$9,500
Billable upon the
first day of each
Fiscal Year
CareConnect Interoperability
Solutions
CareConnect Monthly
Subscription (1000 Users)
FY 2017 increase up to 1500
Named Users $32,100 $32,100 $32,100 $32,100 $32,100
$160,500 Billable upon the
first day of each
Fiscal Year
CareConnect Monthly
Referral
FY 2017 increase up to 1500
Named Users $4,800 $4,800 $4,800 $4,800 $4,800
$24,000 Billable upon the
first day of each
Fiscal Year
CareConnect Lab Results
FY 2017 increase up to 1500
Named Users $9,600 $9,600 $9,600 $9,600 $9,600
$48,000
Billable upon the
first day of each
Fiscal Year
CareConnect Lab Orders
FY 2017 increase up to 1500
Named Users $9,600 $9,600 $9,600 $9,600 $9,600
$48,000
Billable upon the
first day of each
Fiscal Year
Reaching Recovery
Reaching Recovery
Subscription $25,000 $25,000 $25,000 $25,000 $25,000
$125,000
Billable upon the
first day of each
Fiscal Year
SAIS
SAIS Annual Fee $56,600 $58,298.00 $60,046.94 $61,848.35 $63,703.80
$300,497
Billable upon the
first day of each
Fiscal Year
Page 4 of 9 Netsmart Technologies, Inc. | 4950 College Blvd | Overland Park, KS 66211
Total $895,020 $903,177 $911,579 $920,233 $929,146 $4,559,155
7/1/17
Thru
6/30/18
7/1/18
Thru
6/30/19
7/1/19
Thru
6/30/20
7/1/20
Thru
6/30/21
7/1/21
Thru
6/30/22
Annual
Maintenance
Fee
Qty Period Fees Period
Fees Period Fees Period Fees Period Fees Total
Amount Payment Terms
New Purchases - Licenses,
Contractor Support, Services
and Subscriptions
FY 17/18 Increase in Users
Avatar Named User
Additional Licenses - $800
per user
*250 Licenses in July 2017
*210 Licenses in January 2018
460 $312,800 $312,800
$170,000 due on
July 1, 2017
and $142,800
due on January
1, 2018
Avatar Named User
Maintenance
Additonal 460 - $14.00 per
user
*250 Licenses in July 2017
*210 Licenses in January 2018
460 $59,640 $77,280 $79,598 $81,986 $84,446 $382,951
Billable upon the
first day of each
fiscal year
Page 5 of 9 Netsmart Technologies, Inc. | 4950 College Blvd | Overland Park, KS 66211
Plexus Cloud Hosting -
Named User
Plexus Cloud Hosting - Avatar
-
Disaster Recovery - Named
User
$37.00 per user
$157,620 $204,240 $204,240 $204,240 $204,240 $974,580 Billed Monthly
Plexus Cloud Hosting -
Perceptive - Disaster
Recovery - Named User
1210 $61,727 $67,592 $67,592 $67,592 $67,592 $332,095 Billed Monthly
*$4.6551 per user
*1000 Users on 7/1/17 (
Additional 750 existing to
"true up account and 250
new)
*210 Additional Users on
1/1/18
Diagnosis Content on
Demand *Additional 140
Named Users with DSM5
Access
$3,775 $3,775 $3,775 $3,775 $3,775 $18,875
Billable upon the
first day of each
fiscal year
Avatar Web Services
Avatar Web Services Suite -
License $20,000 $20,000 Billable July 1,
2017
Page 6 of 9 Netsmart Technologies, Inc. | 4950 College Blvd | Overland Park, KS 66211
Avatar Web Services
Maintenance $4,200 $4,200 $4,200 $4,200 $4,200 $21,000
Billable upon the
first day of each
fiscal year
Avatar Web Services
Professional Service Fees
*Implementation/Training
$7,200 $7,200
50% due upon
initiation of
project
implementation
and 50% upon
project
completion
Avatar Provider Connect
Provider Connect Individual
Subscription - $41.25 per user 65 $32,175 $32,175 $32,175 $32,175 $32,175 $160,875
Billable upon the
first day of each
fiscal year
Provider Connect
Professional Service Fees $23,800 $23,800
50% due upon
initiation of
project
implementation
and 50% upon
project
completion
Avatar MSO
MSO License $10,000 $10,000 Billable July 1,
2017
MSO Maintenance $2,100 $2,100 $2,100 $2,100 $2,100 $10,500
Billable upon the
first day of each
fiscal year
Page 7 of 9 Netsmart Technologies, Inc. | 4950 College Blvd | Overland Park, KS 66211
MSO Profession Service Fees
*Implementation
*Upgrade
*Re-Load
$77,400 $77,400
50% due upon
initiation of
project
implementation
and 50% upon
project
completion
CareConnect Inbox
CareConnect Inbox Named
User – $5 per named user
Direct Message Mailbox 800 $32,000 $32,000 $32,000 $32,000 $32,000 $160,000
Billable upon the
first day of each
fiscal year
Professional Services -
CareConnect Inbox
Implementation
$10,000 $10,000
50% due upon
initiation of
project
implementation
and 50% upon
project
completion
OrderConnect Subscriptions
OrderConnect Full Suite
Prescriber Subscription -
$104.00 per user/month
69 $86,112 $86,112 $86,112 $86,112 $86,112 $430,560
Billable upon the
first day of each
fiscal year
ePrescribing Controlled
Substances Tokens
Page 8 of 9 Netsmart Technologies, Inc. | 4950 College Blvd | Overland Park, KS 66211
OrderConnect - EPCS
Subscription $8.00 per
user/month
120 $11,520 $11,520 $11,520 $11,520 $11,520 $57,600
Billable upon the
first day of each
fiscal year
OrderConnect - EPCS Per
Prescriber Setup (Hard &
Soft) $75.00 per user
120 $9,000 $9,000 Billable July 1,
2017
Professional Services - EPCS
Training/Implementation $1,125 $1,125 Billed as Incurred
EPCS Shipping and Handling $20 $20 Billed as Incurred
Document Capture Upgrade -
Perceptive
Batch Scanning/Document
Capture License $10,000 $10,000 Billable July 1,
2017
Professional Services -
Document Capture Upgrade $12,000 $12,000
50% due upon
initiation of
project
implementation
and 50% upon
project
completion
Maintenance for Batch
Scanning $2,000 $2,000 $2,000 $2,000 $2,000 $10,000
Billable upon the
first day of each
fiscal year
Professional Services
Professional Services Bucket -
Billed as Incurred $25,000 $25,000 $25,000 $25,000 $25,000 $125,000
Billed as Incurred
at the NTE hourly
rate of $200
Total Amounts $971,214 $547,994 $550,312 $552,700 $ 555,160 $3,177,381
Page 9 of 9 Netsmart Technologies, Inc. | 4950 College Blvd | Overland Park, KS 66211
1
Total Maximum Committed Amount of this Agreement
FY 17/18 FY 18/19 FY 19/20 FY 20/21 FY 21/22
Renewals $ 895,020 $ 903,177 $ 911,579 $ 920,233 $ 929,146
New Purchases $ 971,214 $ 547,994 $ 550,312 $ 552,700 $ 555,160
FY Totals $ 1,866,234 $1,451,171 $1,461,891 $1,472,933 $ 1,484,306
Committed Amount (All Fiscal Years) = $7,736,535
Schedule B
Scope Document
for the Plexus Foundations Implementation Services
Table of Contents:
1. Purpose
2. Project Duration
3. Scope of Services
4. Assumptions
5. Location of Work and County Responsibilities
6. Plexus Events, Expectations, and Deliverables
6.1 Sales to Operations Transition
6.2 Hardware Network OS/Installation
6.3 Software Delivery and Installation
6.4 Project Planning
6.5 General Project Management
6.6 Project Kick-off
6.7 Final review & Validation
6.8 Go-Live Preparation
6.9 Integration Testing
6.10 Go-Live
1. Purpose
The purpose for this statement of work is to outline the requirements and deliverables for the
implementation and project management of the Implementation and migration from a County
hosted hardware, software, and database solution to a Contractor hosted solution referred to as
the Plexus Foundation. The scope is based on the latest generally available software release,
project timeline, and use of Plexus implementation methodology, Plexus Home content and
recommendations. The details of the scope of services are included below.
2. Project Duration
Project Duration
The following project start and end dates are estimates, and are subject to adjustment based
upon the Effective Date of the Agreement and both parties overall cooperation of such
implementation. Netsmart and County requires a minimum of sixty (60) days following the
Effective Date of this Agreement to accommodate pre-project activities such as planning,
staffing and technology activities. The overall duration of this project, based on the scope of
work detailed herein is expected to be 9 months following the Project Kickoff event.
Additional services will be applicable for any project where the duration from project kick-off
to go-live is in excess of 9 months. Any such additional services shall be subject to a written
amendment to this Agreement approved by both parties.
Notice of Changes or Delays
In the event Contractor determines, in good faith, at any time during the course of the project
implementation, that failure, delay, inadequacy of performance by County in performance of
its obligations, or County requested changes to the scope of work, as specified in the
statement of work, may prevent Contractor from completing any of Contractor’s obligations
in the agreed upon time frame or cause Contractor to incur additional or unanticipated costs or
expenses, Contractor will promptly notify County’s Project Manager in writing, which notice
shall specify in reasonable detail: (1) any alleged failure, delay or inadequacy of performance
by County and (2) the estimated impact including the resulting costs or expenses of such
alleged failure, delay or inadequacy of performance on Contractor’s obligations. County will
respond to the notice, specifying any grounds for disagreement, within ten (10) working days
from receipt of the notice. County. In the event of a disagreement, Contractor retains the
option to either stop or continue with the work, and will begin the dispute resolution steps
included in the contract between the parties.
3. Scope of Services
Document Capture Scope of Services
Netsmart's CareRecord Document Capture, Powered by Lexmark is a comprehensive
solution that clinical staff can quickly and easily capture consumer documentation directly
from the client’s chart using Perceptive Content, ensuring the information will be available
when it’s needed.
Perceptive Production
Environment
o Provide 1 Production Document Imaging Solution
Environment
o Create and configure the INOW6 Database for Microsoft
SQL
o Install and configure the Perceptive Enterprise Content
Management Server and Product Suite
o Installation of up to 5 Perceptive WebCapture drivers.
WebCapture drivers are required for any workstation
directly connected to a scanner.
Perceptive Test Environment • Provide 1 Non-Production Environment replicated from
Production Build
Solution Components
• Configuration of one Perceptive Security Department:
“Avatar”. The Security department is created to identify
and secure all documentation for Avatar care records.
• Configure 8 Predefined Perceptive Security Drawers for
Client Documents and Staff Documents. Drawers are
used as an additional layer of security by document status
(Staff, Client, Void)
• Configure up to 50 unique Document Types and a pre-
defined set of Custom Properties. Document types are
used to categorize documents for security and proper
retrieval.
• Create 11 Pre-defined Perceptive Security Groups. The
Security groups are created to restrict access to content
and are driven by options within Avatar.
• Installation of Document Capture Application. The
Document Capture Application is the web component for
scanning and importing within Avatar.
• Configure standard Document Capture workflow. The
workflow is used for error handling associated with
scanning and importing content.
• Installation of Batch Capture and Indexing Application.
The Batch Capture and Indexing Application is the web
application for capturing and scanning batch content.
• Configuration of 1 Folder: “Avatar Batch” for Batch
Indexing. The “Avatar Batch” folder is utilized for
grouping documents for indexing within Avatar for the
Batch workflow.
• Configure standard Avatar Batch Capture Workflow.
The Batch Capture workflow is used for error handling
associated with scanning and importing Batch content.
• Installation of Document Viewer App. This is the Web
viewer application for viewing content within Avatar.
Netsmart Responsibilities
• Provide Client Project Manager with Best Practices and
Backup Recommendation Documentation prior to
conclusion of implementation
• Provide up to a 8 hours Administration Training for a
designated solution administrator to be completed during
the implementation process
• Provide up to a 8 hour Solution Training Session for
“Super Users” at a single location for up to 10
individuals, using a “Train the Trainer” approach
• Provide remote go-live support for single site location.
Onsite support may be provided upon request (Client
responsible for any travel fees)
County Responsibilities
• Complete and return Perceptive Starter Kit
• Provide a complete list of users needing access to the
content management solution along the security
designation of those users regarding scanning/importing,
viewing, printing
• Capture workstations being configured by Netsmart
associates will need to have scanner driver installed and
functional prior to Document Capture implementation
• For self-hosted clients, all server infrastructure should be
configured and available based on the provided
Technical Specifications document provided
• Systems administrator and/or Microsoft SQL Server
DBA must be available throughout the implementation
for assistance as needed and to shadow the relevant
installation/configuration solution components
WebServices Scope of Services
Create webservice to mimic a data entry form.
Attach form specification including fields,
field types, and logic if applicable.
Data Conversion Scope of Services
Data Conversion allows for the migration of certain legacy system data elements as
contractually determined. The level of complexity and time to complete is dependent on the
amount of data to be converted and the quality of the data. It is also assumed that
representatives from the legacy system vendor will make themselves available as needed (if
required).
Data Conversion
The conversion process will transfer the following data sets:
• Demographic & Movement History
• Balance Forward
• Financial Eligibility
• Managed Care Authorizations
• Treatment Plan Content
• Staff
• Document Snapshot
Scope of Services
CareConnect Inbox: Inbox that will handle CCD exchanges and referrals to other agencies
through Direct Messaging. This scope includes one referral connection and one direct address.
There could be additional connections and addresses pending on clients purchasing additional
subscriptions.
Key Features
• Ability to associate individual mailboxes to direct addresses so that
my end users can communicate securely
• Expanded contact list to send CCD directly to another care
provider
• Reply, forward, and attach documents to messages.
• eMail like user interface for easy review and composing of
messages.
• Create your own inboxes to create additional providers without
developer assistance
• Attach additional documents to messages as well as CCD
documents
• Connection specified by one of the following connection types:
IHE, HL7, DIRECT, SFTP, VPN, MLLP, HTTP, SMTP, SOAP
Web Services, XDR/XDM, XDS, XCA, XCPD, PDQ, PIX.V2/V3
Training
• Remote webinars
o Two in total
One for Admin Training
One for End User
CareRecord &
Solution
Configuration
• Configure CareRecord to add the inbox for providers to view
within EHR.
• Setup initial amount of users, not to exceed 15
• Setup initial contact list from another agency
• Establish secure connection to CareConnect through NTST
CareFabric
•
Managed Services Organization
(MSO)Scope of Services
Managed Services Organization (MSO)is a uniquely adaptable system which serves the specialized needs of
states,counties.Managed Care Organizations,specialty networks,and providers attempting to carefully monitor
both at-risk and non-risk contracts .
Enrollment
Enter member status and eligibility verification to begin the enrollment
and service process .
Enroll a member and record pertinent data on the MSO member.MSO
will record the member name,gender ,funding source assignment,plan
assignment,effective date cf enrollment ,and member status as a
dependent or primary enrollee.
Screening
Includes |l customized assessment,designed to meet any state or local
requirements,created to assess member requesta-needs during the
screening process to determine the appropriate level of care .
Care Management
Through Service authorization,record and track authorizations for
member and or contracting provider services ,automatically assign an
authorization number and select benefits through link between Member
Plan Assignment .
Perform authorization extensions in conjunction with transitions of level
of care based on client need audor client assessment.
Assign transfer and relieve case load.
Claims Processing
Receive claims data from the provider and input into the system for
validation and adjudication of service data against authorization data.
Claims can be uploaded automatically from ProviderConnect (if licensed
and implemented)as an S3 7 flat fils firm another billing system or entered
manually.
A payment recommendation (approve,pend cr deny)is made by the
system for review and approval based on client-defined rules.Supports the
claims process in four fimctions to include:
»Batch creation
»Explanation of Benefits Creadon (Voucher;'•Funding Source Reimbursements to the MSO
•Claim Denial Appeal
Automatically generate a file to be sent to a GL /AP system for checks
production and payment processing along with Explanations of Benefits
(EOBs)to accompany the payment to the provider .
Note:Will occur automatically only if General Ledger Interface is licensed
and implemented
Reports
Standard reporting includes the following:
»Membership Management Reports
»Provider Management Reports
»Care Management Reports
»Claims Management Reports
•Claims Processing Reports
•Management Review Reports
Maintenance
Set up or maintain contract requirements,fee schedules,provider
credenhalmg,funding source and plan definitions,CPT/Revenue codes &
MSO integration mapping.
ProviderConnect Scope of Services
ProviderConnect is a secure web-based solution used to improve communications between
providers and payers to ensuring the efficient provision of quality care and timely, accurate
reimbursements.
Business Benefits
Exchange the following data electronically:
• State reporting information
• Demographic updates
• Admissions
• Financial information
• Service authorization information
• Service information
• Service payment information
4. Assumptions
• Contractor will devote sufficient resources and timely communication to the project
in order to assure its reasonable success.
• New hardware, if required, will be delivered by the date required in the Project
Schedule.
• County will use currently supported Crystal Professional version for all report
development.
• County will provide sufficient resources as identified in the work breakdown
structure of the project plan.
• A training room will be available for the training sessions with working equipment
and appropriate software loaded prior to the arrival of the Contractor if it is part of the
planning and expectations for the project.
• Individuals scheduled to attend training will attend and participate in the entire
session as defined by the agenda.
• Contractor will share available recommended practices during the implementation.
• The project will be executed according to the event-based Contractor Plexus
Foundation Methodology as outlined below.
• Any usage of diagnosis and/or procedure code content that is utilized within the
Contractor solutions must be fully licensed by the County. Additionally, the County
must provide proof of this licensing. This includes Micromedex content, CPT or
DSM codes.
5. Location of Work & County Responsibilities
The location of work by Contractor and County staff identified in the detailed project schedule and Plexus
event descriptions is work performed either on-site at County location(s), at a Contractor regional office or
conducted remotely. A high-level outline for work location and County responsibilities is provided below.
6. Plexus Events, Expectations & Deliverables
The following section of this document details the main deliverables of the County
Implementation.
6.1 Sales to Operations Transition
Our implementation services begin with a formal transition from our Sales Team to our
Project Management Team. This thorough transition process ensures that the
expectations set and project management scoped during the sales process is reviewed
including all contract components, and operational flows gathered during the sales cycle.
High Level Plexus Methodology &Event Location
-anr 'ng BBli iBGIB
Location
Client Site |
Netsmart
Client
Responsibilities
Identify and Staff Project Team
Attend Knowledge Transfer Sessions
Provide Data Collection
Conduct System Testing
Conduct Integration Testing
f Conduct End-UserTraining
Plan &Staff Go -Live
Maintain System Post Go -Live
6.2 Hardware Network OS/Installation
Contractor-hosted:
The County is responsible for providing the desktop hardware, operating system
software, LAN/WAN network, and Internet connectivity upon which the licensed
programs operate.
Contractor’s engineers require the completion of a desktop hardware, network, and
bandwidth survey prior to installation of any solutions. This ensures that all equipment
and connectivity methods meet minimum application and performance requirements
before Contractor Technologies installs the programs.
6.3 Software Delivery and Installation
Contractor-hosted:
Licensed software solutions and keys are delivered via FTP with User Documentation
that describes the application and database organization.
Contractor’s system engineers install the solution on the server system hardware within
Contractor’s Plexus Cloud hosting environment. Contractor will assist the County in
connecting to the hosting environment and connecting a subset of County workstations.
Contractor’s Plexus Cloud installation will include:
• Loading the InterSystems Cache database products needed by the application on
all applicable servers
• Loading purchased Contractor’s Licensed Programs that make up the solution
• Testing the software to ensure access from the County workstations
• Training the customer on installing workstation software
Contractor engineers will create and install Plexus Home, BUILD, TEST and LIVE
environments for all applications purchased.
6.4 Project Planning
The Project Planning Event is an opportunity to begin preparing your project team. The
County project team will be introduced and the team’s responsibilities will be discussed.
The Plexus Foundations implementation methodology is introduced and the different
events within the methodology presented, outlining the objectives of each event and the
roles and responsibilities of each member of the team. Additionally project tools that will
be used will be shown through demonstration and hands-on experience.
Super User Solution web-based training courses are provided to up to 25 named Project
Team users via the myLearningPointe (www.mylearningpointe.com) online
platform. Individual user training access is distributed and available to Project Team
users starting at the Project Kick Off Plexus Methodology event and concludes at initial
Go Live event. Users will have unlimited access to the provided solution training courses
during the implementation.
Objectives:
• Review project management principles
• Review event-based Contractor Plexus Foundations methodology
• Provide hands on experience with solutions
• Introduction to tools to be used during the project
• Introduction to Starter Kit questions
• Introduce Plexus Home & scripts
• Gather state reporting & payor requirements
• Introduce myLearningPointe training classes (where applicable)
• Conduct project Planning Assessment (Gate 1)
• Plan for next event
County Responsibilities:
• Identify County project team and develop County Staffing Plan
• Ensure correct County personnel attends the Project Planning event
• Provide necessary facilities and equipment to support session
• Complete Starter Kit questions
• Review and sign Communication Management, Change Management & Risk
Management Plans
• Complete myLearningPointe training classes (where applicable)
6.5 General Project Management
Active throughout the project lifecycle and fundamental to it is a monitoring and
measurement process that consists of numerous cost and scope control, testing, quality
assurance and acceptance activities. These ongoing activities are supplemented by
critical control points, progress checkpoints, called Plexus Gates are included to ensure
that the project cannot advance to the next phase until the required activities and
acceptance factors are successfully met. The monitoring and measurement process
employed by Contractor ensures that projects are properly stewarded to both a time and
cost budget. This critical process transcends across the entire project implementation
process to help ensure on-time project completion within estimated cost parameters along
with properly managed and approved schedule and scope changes.
• Status meetings & Project Status Reports
• County signoff and acceptance letters
• Project plan change requests
• Product Change Requests
• Product Improvement Forms
• Plexus Gates
6.6 Project Kickoff
The Project Kickoff consists of three discreet activities: Project Kickoff presentation,
Workflow Assessment and Scope Review.
The project kickoff presentation gives the County Executives, project sponsors and
project leadership an opportunity to create excitement for the organization and the project
as well as pass down key messages and expectations.
The scope review session includes breakout sessions led by SA’s to review in detail the
contract scope.
During the Workflow Assessment the Contractor Solution Architect (SA) and County
departmental/solution representatives, which could include a combination of IT analysts,
departmental heads and/or key stakeholders from that department, will walk through the
departments to get an understanding of the County’s unique workflow and processes and
how it aligns with Contractor’s recommended practices. The walkthrough will be
facilitated using both the Starter Kit questions, having already been completed, as well as
the Workflow Assessment which will serve as a framework for questions and
documentation of the discussions that occurred during the assessment.
Objectives:
• Conduct official project kickoff meeting
• Introduce Contractor Solution Architects
• Review Starter Kit outstanding items
• Conduct Workflow Assessment
• Identify improvement opportunities
• Conduct scope review
• Identify project risks & scope concerns
• Present data collection materials
• Conduct Plexus Project Kickoff Assessment (Gate 2)
• Plan for next event
County responsibilities:
• Deliver Project Kickoff presentation (with Contractor leadership support)
• Complete Starter Kit questions prior to the event
• Complete any required data collection, following the event, by deliverable due
dates
• Participate and provide feedback during departmental walkthroughs
• Participate in scope review discussions
• Provide necessary facilities and equipment to support the event
6.7 Final Review & Validation
This event consists of three discrete parts: Final Review & Application Training, System
Testing & Learning Plan discussions.
The Final Review discussion is intended to present the design decisions and data
collection as it is now represented in the County’s completed system and confirm their
accuracy. Additionally, as a part of Final Review, application training relevant to testing
and training is delivered to the County personnel.
The System Testing Session will be include a starter set of test scripts, examples upon
which they can customize their own scripts, as well as instruction on testing principles,
policies and procedures. During this session, there will also be discussion regarding the
development of a County testing strategy/plan for which the County will be given a
sample on which to build their own.
The Learning Plan session is included to help County develop a solid plan to ensure end-
users will be effectively trained prior to go-live. This will be critical to the success of the
project as well as adoption of the solutions. The plan will include training strategies,
resource requirements, any required technologies and/or logistics, timelines, goals and
objectives.
The same group that attended Solution Review should attend the Final Review &
Validation event. Additionally, while it may be the same individuals, depending on your
staffing plan, the event should also include any individuals who will be expected to
conduct system testing and/or end-user training. It is recommended that trainers
participate in testing. It affords them an opportunity to practice and become familiar with
the system.
Objectives (Finial Review)
• Provide in-depth demonstration of the solutions and build using the County’s
domain
• Review and confirm design decisions and build
• Confirm the solution workflow
• Complete design process
• Provide hands-on solution training
• Conduct Plexus Final Design Assessment (Gate 3)
• Plan for next event
Objectives (System Validation)
• Provide training on test script development and testing concepts
• Begin development of County-specific system test scripts
• Plan for next event
Objectives (Learning Plan Development)
• Conduct Learning Plan session
• Begin development on Learning Plan
• Plan for next event
County responsibilities:
• Participate in Final Review & Validation event
• Provide appropriate resources to attend sessions
• Complete data collection assignments
• Validate design and build
• Signoff design decisions
• Customize sample test scripts to use during system and integration testing
• Customize sample training materials in preparation for end-user training
• Develop Learning Plan & execute against plan for end-user training
6.8 Go-Live Preparation
The Go-Live Preparation event is the official milestone to transition project ownership
from the Contractor project team to the County. Solution and project management
discussion are delivered during this week and focus, in preparation for go-live, on
assessing the County’s knowledge of the system as well as preparing the County for their
training events and go-live. In the solution discussions, the County trainers are expected
to provide a live demonstration of the system back to the Contractor project team to
confirm their understanding of the system and to confirm they are prepared to effectively
train the end-user population.
System Testing, while not complete, should be well underway. Contractor Project
Management will facilitate the event at the County site, while the rest of the Contractor
project team participates via a conference call.
Those attending the event should be the same as the Final Review and Validation
attendees. Department heads and/or key departmental representatives should attend the
solution activities along with the County representative responsible for testing
coordination.
Solution-Specific Activities & Objectives
• County to demo system using the County demo script exhibiting a clear
understanding of the solution functionality and departmental processes
• Understand open issues, escalate, and plan as appropriate
• Review completed training materials
• Review Go-Live Readiness Assessment
Project Management Activities & Objectives
• Initiate ownership transition process
• Confirm system testing is in process, on track and scheduled for completion prior
to Integration Testing
• Finalize Integration Testing Plan
• Initiate Go-Live Planning
• Conduct Plexus Go-Live Preparation Assessment (Gate 4)
• Plan for next event
County Responsibilities:
• Demonstrate understanding of system and departmental processes by leading a
demonstration of the application
• Finalize Training Strategy/Plan
• Provide adequate training facilities
• Provide completed testing materials
• Schedule and perform end-user training
• Finalize Integration Testing scripts and Integration Testing Plan
• Confirm users will be trained and available for Integration Testing
• Confirm facilities and hardware is in place to support Integration Testing
• Develop and own the Go-Live Plan
6.9 Integration Testing
One round of Integration Testing will be conducted according to the County’s Integration
Testing Plan. Integration Testing will be executed at the County’s site and will be led by
the County project management team with assistance from the Contractor project team.
IT will allow the system testers to flow a complete patient experience, “a day in the life”
of a patient, using the system including all involved, major workflow processes. This
event also allows the County to validate SOPs and end-user training prior to conversion.
Objectives
• Complete Integration Testing according to plan
• Confirm Go-Live preparedness
• Ensure all critical path issues have an action plan
• Conduct Plexus Go-Live Assessment (Gate 5)
• Plan for next event
County responsibilities:
• Lead and direct integration testing activities
• Conduct application integrated testing
• Conduct operational testing
• Document integrated test results
• Troubleshoot and resolve testing issues
• Update issues list with any unresolved integration test findings
6.10 Go-Live:
Go-Live is the event when solutions are moved into productive use by the end-user
population. It will take place at the County site, supported by both project teams.
Contractor support will include the first 3 days following go-live and will include the
Contractor Project Manager onsite along with remote support from the Contractor
Delivery Consultants/Analysts.
Objectives:
• Begin functional use of Contractor solutions
• Transition support from Contractor project team to the County
• Gather and document feedback regarding project experience, including
methodology & project team resources
County responsibilities:
• Develop and complete go-live plan
• Confirm all systems, resources and 3rd parties are scheduled and prepared for go-
live
• Conduct go-live plan meetings to outline plan for all solutions and users
• Execute go-live plan
• Document go-live issues
Schedule C
Hardware Configuration
Technical Requirements may change over the course of the Agreement and as such, Contractor shall notify
County of any change in which County is expected to reasonably adopt to meet then-current technical
requirements.
User's Computer (Minimum)
Processor 1 gigahertz (GHz) or faster 32-bit (x86)
Operating System Windows 7, 8 (8.1)
RAM 1 GB or greater
Hard Disk Space 1 GB or greater
Monitor VGA or higher (1024 x 768 pixels)
Mouse Microsoft Mouse, or compatible pointing device
Browser IE 9 (Windows 7), IE 10 (Windows 7, 8), IE 11
(Windows 7, 8.1) (IE 32 bit only in compatibility
mode)
Chrome (16-27), Firefox (10-22)
Java Requirement JRE 1.6.0_22 -49(32-bit only)
JRE 1.7.0_45 (32-bit only)
JRE 1.7.0_51-55 & 1.8.0-u5 (32-bit only, RADplus
2011+ MW Build 2014.01.00.1276)
User's Computer (Recommended)
Processor 2 gigahertz (GHz) or faster 32-bit (x86) or 64-bit
Operating System Windows 7, 8 (8.1)
RAM 2 GB or greater
Hard Disk Space 2 GB or greater
Monitor VGA or higher (1024 x 768 pixels)
Mouse Microsoft Mouse, or compatible pointing device
Browser IE 9 (Windows 7), IE 10 (Windows 7, 8), IE 11
(Windows 7, 8.1) (IE 32 bit only in compatibility
mode)
Chrome (16-27), Firefox (10-22)
Java Requirement JRE 1.6.0_22 -49(32-bit only)
JRE 1.7.0_45 (32-bit only)
JRE 1.7.0_51-55
1.8.0-u5 (32-bit only, RADplus 2011+ MW Build
2014.01.00.1276)
Schedule D
County Resource Requirement
County will provide the resources described below for the implementation of the Contractor Programs.
Failure to provide these resources could compromise the project and may result in the need for additional
Contractor Implementation Services
For CareConnect Interoperability Component, Care Connect Inbox – County Side Project
Manager, Subject Matter Expert(s) as needed, Trainers for End Users Business Analyst
For Perceptive Document Capture Migration - County Side Project Manager, Subject Matter
Expert(s) as needed, Trainers for End Users Business Analyst
For MSO and Provider Connect Implementation - County Side Project Manager, Subject
Matter Expert(s) as needed, Trainers for End Users Business Analyst
For WebServices Implementation - County Side Project Manager, Subject Matter Expert(s) as
needed, Trainers for End Users Business Analyst
For Data Conversion - County Side Project Manager, Subject Matter Expert(s) as needed,
Trainers for End Users Business Analyst
Schedule E
Support Services
The Support Services described in this Schedule will be performed by Contractor subject to the terms and
conditions of this License and Service Agreement.
a) Contractor will maintain the then current version of the Licensed Programs in substantial conformance with
its Specifications as amended from time to time by Contractor, and with applicable Federal regulatory
requirements and laws. Contractor will use commercially reasonable efforts to either:
(i) Correct any reproducible Problems or Defects in the then current or immediately prior
release of Licensed Programs by Contractor which prevent it from operating in substantial
conformance with the Specifications and applicable Federal regulatory requirements; or
(ii) Provide a commercially reasonable alternative that will substantially conform with the
Specifications and applicable Federal regulatory requirements and laws.
b) County will make requests for Support Services by giving Contractor written notice specifying a Problem
or Defect in the Licensed Programs. In making a verbal request for Support Services, County will provide
Contractor within twenty four (24) hours after such verbal notice with such written information and docu-
mentation as may be reasonably prescribed by Contractor.
c) County will provide and maintain, at its expense, hardware and/or software to allow Contractor to access
County's system remotely. County will provide Contractor with appropriate access credentials.
d) On a timely basis Contractor will also provide County with:
(i) such updates as are distributed without charge to other similar County’s which reflect
modifications and incremental improvements made to the Licensed Programs by Contractor;
(ii) an opportunity to obtain enhancements to the Licensed Programs for which charges are
imposed on the same terms as such enhancements are generally made available to other
County’s.
e) Contractor will make technical support personnel available from 9:00 a.m. to 6:00 p.m., Contractor local
time Monday through Friday, exclusive of Contractor holidays.
f) If reasonable analysis by Contractor indicates that a reported Problem or Defect is caused by a problem
related to Hardware used by County, the hardware’s system software, or applicable software other than
Licensed Programs, or County's misuse or modification of the Licensed Programs, Contractor's responsi-
bility will be limited to the correction of the portion, if any, of the problem caused by a Problem or Defect
in the Licensed Programs. County will, at Contractor's option, pay Contractor for the cost of analyzing the
reported problem at Contractor's then prevailing time-and-materials rate.
g) The initial term for provision of Support Services for Licensed Programs will begin on July 1, 2017 and end
on June 30, 2022.
h) Contractor agrees that it will not revise the Charges for Support Services during the initial term. In
accordance with Section 6 of the Agreement, Contractor will give County not less than ninety (90) days
written notice prior to the expiration of the initial term of the Agreement to commence negotiations on
Support Service Charges as part of the parties’ negotiations on any option to extend the Agreement.
Charges will not be increased for any extension term by more than the most recent increase in the US
Bureau of Labor Statistics Consumer Price Index for All Urban Consumers (CPI-U) - Medical Care or 4%,
whichever is higher.
i) Absent a bona fide dispute, if County fails to pay for Support Services when due, Contractor may refuse to
provide Support Services until County makes payment of all Charges due. If County has missed any
mandatory upgrades Contractor will also charge, and County will pay, for software and services necessary
to bring the Licensed Programs up to Contractor's then-current level before Contractor will certify that
County is again eligible for maintenance hereunder.
j) Guardiant is included at no charge provided County is current on maintenance. Guardiant is a diagnostic
tool that monitors the health of County’s licensed Contractor solutions and provides the ability to review
technical configuration and metric data not limited to; configuration changes, support case activities,
system usage, application events, licensing, user activity, and installed updates in a dashboard view.
k) If analysis by Contractor indicates that a reported problem is caused by a reproducible Problem or Defect,
Contractor will use commercially reasonable efforts to provide Support Services in accordance with the
following prioritization of reported problems:
Priority Definition
1 - Critical Priority 1: will be assigned when the Contractor Program or a material Contractor Program Function component is
non-operational as a result of a defect [in Production environment only] such as the Production system cannot be
accessed or utilized in any capacity, a direct patient safety issue is present, or a HIPAA compliance violation as a
result of a server incident or Contractor application defect. Best efforts will be made to correct Priority 1 problems,
or to provide a plan for such correction, within two (2) business days.
County’s Commitment:
• This case Priority must be called in directly to the Contractor Support department.
• County provides specific, detailed information required for troubleshooting/investigation.
• County provides appropriate staff and resources to sustain continuous communication and work effort as
required.
• Without appropriate County resources, the case will be downgraded to Priority 2 after three (3) business
days.
2 – High
Priority 2: will be assigned to Production defects that result in functions that have a significant negative impact on
daily operations but do not constitute as a “System Down”. A workaround may be available and/or the capacity to
maintain daily business functionality. Commercially reasonable efforts will be made to correct Priority 2 problems,
or to provide a plan for such correction, within five (5) business days.
County’s Commitment:
• County provides specific, detailed information required for troubleshooting/investigation.
• County provides appropriate staff and resources to sustain continuous communication and work effort as
required.
• Without appropriate County resources, the case will be downgraded to Priority 3 after six (6) business
days.
3-Medium Priority 3: will be assigned for system defects that result in functions that have no major impact on daily operations.
An issue that allows the continuation of function, including issues in which a reasonable workaround is available.
Commercially reasonable efforts will be made to correct Priority 3 problems, or to provide a plan for such
correction, within ten (10) business day.
County’s Commitment:
• County provides specific, detailed information required for troubleshooting/investigation.
• County provides appropriate staff and resources to sustain continuous communication and work effort as
required.
• Without appropriate County resources, the case will be downgraded to Priority 4 after eleven (11) business
days.
4 – Low
Priority 4: will be assigned to cosmetic defects that do not affect system usability or non-defect related requests
including, but not limited to, system set up/configuration, training, functionality questions, documentation, portal
access, and upgrade requests. Commercially reasonable efforts will be made to address Priority 4 issues, or to
provide a plan for such correction, within fifteen (15) business day.
County’s Commitment:
• County provides specific, detailed information required for troubleshooting/investigation.
• County provides appropriate staff and resources to sustain continuous communication and work effort as
required.
• Without appropriate County resources, the case will be closed following our Case Closure Notification
policy.
Schedule F
Specifications
Document Provisions by Contractor
As set forth in the following checked documentation list, Contractor will make available to County online
documentation of all line items checked as part of the system implementation and support. All County
authorized subscribers that access the electronic medical records system will be able to access the online
documentation. County will not alter or eliminate any copyright notice on documents provided by Contractor
as listed below.
Avatar PM User Guide
Avatar PM Welcome Guide
Avatar PM Kickoff Manual
Avatar CWS User Guide
Avatar CWS Welcome Guide
Avatar CWS Kickoff Manual
Avatar MSO User Guide
Avatar MSO Welcome Guide
Avatar MSO Kickoff Manual
Avatar GLI User Guide
RADplus User Guide
Setup and Utilization of Third Party Reporting Software
System Administration Procedures for Netsmart Systems Utilizing Cache’
Perceptive-ImageNow Software End-User License Agreement
z
Z
Zz
z
z
Schedule G: Confidentiality of Patient Information
Confidentiality of Patient Information and Records. All patient information and records are confidential.
CONTRACTOR shall maintain the confidentiality of all patient records, including billings and
computerized records, in accordance with all applicable state and federal law relating to confidentiality of
patient records and patient information, including but not limited to: HIPAA, HITECH, and the HIPAA
Regulations; 42 U.S.C. § 290dd-2 and the Part 2 Regulations; the Lanterman-Petris-Short Act (“LPS”),
California Welfare and Institutions Code § 5328, et seq.; California substance abuse laws at California
Health & Safety Code §§ 11812 and 11845.5; federal and state Medicaid and Medi-Cal laws at 45 C.F.R.
§ 205.50, 42 C.F.R. §§ 431.300 et seq. and California Welfare and Institutions Code § 10850, et seq., the
Confidentiality of Medical Information Act (“CMIA”) at California Civil Code sections 56.00 et seq.,
California laws governing HIV/AIDS records at California Health & Safety Code § 120975, and
California Civil Code Section 1798.29.
“Patient Information” includes any individually identifying information related to a patient/recipient of
services including, but not limited to: name, identifying numbers, symbol, fingerprint, photograph or
voice print. In addition, “Patient Information” includes all information CONTRACTOR has obtained
about a patient/recipient of services, including the mere fact that patient is receiving alcohol or drug
treatment from the County or has been referred to an alcohol or drug treatment program by the County,
whether or not a documentary record of such information exists.
Ownership of Information. All Patient Information created, maintained, received, or transmitted by the
CONTRACTOR for or on or behalf of the County in connection with the Services under this Agreement
shall be and remain the property of the County and the County shall retain exclusive rights and ownership
thereto. Such information shall be referred to henceforth as “County Information”.
Use and Disclosure of Patient Information. CONTRACTOR shall use County Information or Patient
Information obtained from contact with patients/recipients of Services and complainants (including
anonymized data) only for the purpose(s) for which use or disclosure was authorized and shall implement
appropriate safeguards to maintain the confidentiality of such information and to prevent further use or
disclosure. CONTRACTOR acknowledges that County Information regarding a patient whose records
are subject to the Part 2 Regulations may not be re-disclosed to another entity without specific
authorization from the patient or his/her legally authorized representative for such re-disclosure. In
addition, CONTRACTOR shall obtain the County's prior written consent to any disclosure of County
Information, except as required by law. The County, through the Behavioral Health Director, shall have
access to any Patient Information created, received, transmitted, or maintained by CONTRACTOR in
connection with its performance under this Agreement.
CONTRACTOR shall use County Information or Patient Information gained from access to records and
from contact with patients/recipients of service and complainants (including anonymized data) only for
the purpose(s) for which use or disclosure was authorized and shall implement appropriate safeguards to
maintain the confidentiality of such information and to prevent further use or disclosure.
CONTRACTOR shall not disclose Patient Information, including the identities of patients/recipients of
service, without proper authorization to such disclosure or as required by law. CONTRACTOR further
acknowledges that County Information regarding a patient whose records are subject to the Part 2
Regulations may not be re-disclosed to another entity without specific authorization from the patient or
his/her legally authorized representative for such re-disclosure. In addition, CONTRACTOR shall obtain
COUNTY's authorization to such disclosure prior to any release of Patient Information. The COUNTY,
through the Behavioral Health Director, shall have access to such confidential information.
CONTRACTOR shall return or securely destroy County Information as directed by the County. Transfer
to the County or a third party designated by the County shall occur within a reasonable period of time,
and without significant interruption in service. In the event that County requires destruction of County
Information,CONTRACTORagreestosecurelydestroyalldatainitspossessionandinthepossessionofanysubcontractorsoragentstowhichtheCONTRACTORmayhavetransferredCountyInformation.CONTRACTORagreestoprovidecertificationofdatadestructiontoCounty.CONTRACTORshallnotifyCountyofanysecuritybreachorsuspectedsecuritybreachofanyCountyInformationorcoveredunderapplicablefederalregulationssetforthin12C.F.R.Part30,orunderCaliforniaCivilCode1798.29,oranyotherbreachofCountyInformationimmediatelyfollowingdiscovery,iftheinformationwas,orisreasonablybelievedtohavebeenacquiredbyanunauthorizedperson.Notificationmustbegiveninthemostexpedienttimepossibleandwithoutunreasonabledelay.Writtenconfirmationmustbesentwithintwo(2)daysofdiscoveryornotificationofthebreachorsuspectedbreach.A“breach”meanstheunauthorizedacquisitionofcomputerizeddatathatconstitutesPersonalInformationthatcompromisesthesecurity,confidentiality,orintegrityoftheinformation.Abreachisalsotheacquisition,access,use,ordisclosureofProtectedHealthInformationinamannernotpermittedundertheHIPAAPrivacyRulewhichcompromisesthesecurityorprivacyoftheProtectedHealthInformation,and/ortheunauthorizedaccess,use,ordisclosureofMedicalInformationunderCMIA.PenaltyforUnauthorizedDisclosure.CONTRACTORunderstandsthatdisclosureofPatientInformationinviolationofstateorfederallawmaysubjectthepartyreleasingtheinformationtociviland/orcriminalfines,penalties,includingbutnotlimitedtoaminimumof$10,000incivildamages,assetforthinWelfareandInstitutionsCodeSection5330.DutytoWarn.CONTRACTORunderstandsthatpersonsprovidingservicesunderthisAgreementmay,incertainsituationsinvolvingapatientorrecipientofserviceswhoisadangertohimselforothers,haveadutytowarnthirdpartiesofsuchdangerandshouldconsultsupervisorystaffand/orlegalcounselaboutsuchdutytowarnasappropriate.DisseminationoftheseConfidentialityProvisions.CONTRACTORshallinformallitsofficers,employees,agents,andsubcontractorsprovidingserviceshereunderoftheseprovisions.Indemnification.Netsmartwillindemnify,defendandholdharmlessCountyanditsrespectiveemployees,directors,officers,subcontractors,agentsandaffiliatesfromandagainstallclaims,actions,damages,losses,liabilities,fines,penalties,costsorexpenses(includingwithoutlimitationreasonableattorneys’fees)sufferedbyCONTRACTORarisingfromanynegligentorwrongfulactsoromissionsinconnectionwiththisScheduleH,byNetsmartorbyitsemployees,directors,officers,subcontractors,oragents.Inaddition,CONTRACTORwillreimburseCountyforitsactualoutofpocketcostsofnotice,mitigationorremediationofanyprivacybreachcausedbyanyactoromissionofCONTRACTOR.Bymysignaturebelow,astheauthorizedrepresentativeoftheCONTRACTORnamedbelow,IcertifyacceptanceandunderstandingformyselfandtheCONTRACTORoftheaboveconfidentialityNetsmartTechnologies,Inc.NameofAuthorizedRepresentative(printed)/-/3-zo/DDateTitleofAuthorizedRepresentative
SCHEDULE H
QUALIFIED SERVICE ORGANIZATION/BUSINESS ASSOCIATE
AGREEMENT
This Business Associate Agreement (“Agreement”), effective November 1, 2014 (Effective Date”), is entered
into by and among the County of [COUNTY], a political subdivision of the State of California, on behalf of
the Health Department (“Covered Entity”) and Netsmart Technologies, Inc. (“Business Associate”) (each a
“Party” and collectively the “Parties”) hereby enter into this Qualified Service Organization Agreement under
the Part 2 Regulations and Business Associate Agreement under HIPAA.
Business Associate provides certain services (“Services”) for Covered Entity under this Agreement that
involve the use and disclosure of Protected Health Information that is created, received, transmitted, or
maintained by Business Associate from, or on behalf of, Covered Entity (“PHI”).
The County is a “Covered Entity” as that term is defined in the Privacy Rule and the Security Regulations
and Netsmart Technologies, Inc. is a “Business Associate” as that term is defined in the Privacy Rule;
Business Associate is also a Qualified Service Organization, as defined in 42 C.F.R. Part 2.11, providing
services to Covered Entity.
The Parties are committed to complying with the Standards for Privacy of Individually Identifiable Health
Information, 45 C.F.R. Part 160 and Part 164, Subparts A and E as amended from time to time (the “Privacy
Regulation”), the Breach Notification Standards, 45 C.F.R. Part 160 and Part 164, Subparts A and D (the
“Breach Notification Regulation”), and with the Security Standards, 45 C.F.R. Part 160 and Part 164, Subpart
C as amended from time to time (the “Security Regulation”) under the Health Insurance Portability and
Accountability Act of 1996 (“HIPAA”), as amended by the Health Information Technology for Economic
and Clinical Health Act and its implementing regulations (“HITECH”) and the restrictions on use and
disclosure imposed under the Confidentiality of Alcohol and Drug Abuse Patient Records under 42 U.S.C. §
290dd-2 and 42 C.F.R. Part 2 (the “Part 2 Regulations”). Collectively, the Privacy Rule, Security Rule, and
Breach Notification Rule are referred to as the HIPAA Regulations.
Business Associate acknowledges that, pursuant to HITECH, 45 C.F.R. §§ 164.308 (administrative
safeguards), 164.310 (physical safeguards), 164.312 (technical safeguards), 164.316 (policies and procedures
and documentation requirements) and 164.502 et. seq. apply to Business Associate in the same manner that
such sections apply to Covered Entity. The additional requirements of Title XIII of HITECH contained in
Public Law 111-005 that relate to privacy and security and that are made applicable with respect to covered
entities shall also be applicable to Business Associate.
Business Associate is committed to complying with applicable California law, including but not limited to,
the California Confidentiality of Medical Information Act, Cal. Civil Code §§ 56 et seq. (“CMIA”), the
Lanterman-Petris-Short Act (“LPS”) Cal. Welf. & Inst. Code § 5328 et seq., California substance abuse laws
Cal. Health & Safety Code §§ 11812 and 11845.5; California laws governing HIV/AIDS records at
California Health & Safety Code § 120975, and California Civil Code Section 1798.29. Collectively,
these and other applicable laws shall be referred to as “California Laws”)
Business Associate is committed to complying with any applicable Medi-Cal requirements at 45 C.F.R. §
205.50, 42 C.F.R. § 431.300, et seq. and Cal. Welf. & Inst. Code §10850, et seq. (“Medi-Cal requirements”).
Business Associate is also committed to complying with applicable requirements of the Red Flag Rules
issued pursuant to the Fair and Accurate Credit Transactions Act of 2003 (“Red Flag Rules”).
Business Associate acknowledges that the general prohibitions on re-disclosure under the Part 2 Regulations
do not allow Business Associate to disclose patient identifying information to another entity without patient
authorization, even where the Privacy Rule might allow disclosure;
Business Associate acknowledges that a person’s mere participation in an alcohol/drug program is
confidential, as is any information about the individual;
Business Associate acknowledges that the CMIA prohibits Business Associate from further disclosing PHI
that it receives from Covered Entity where such disclosure would be violative of the CMIA, LPS, or other
state or federal law.
Business Associate acknowledge that disclosure of confidential matters can be a violation of federal law and
can subject Covered Entity, individual persons, and/or the Business Associate to potential criminal and civil
sanctions and fines;
This Agreement sets forth the terms and conditions pursuant to which PHI, and, when
applicable, Electronic Protected Health Information (“EPHI”), and the information protected under the Part 2
Regulations (“Part 2 Information”) shall be handled. The Parties further acknowledge that state statutes or
other laws or precedents may impose additional obligations, including data breach notification or information
security obligations, and it is their the Parties’ further intention that each shall comply with such laws as well
as HITECH and HIPAA in the collection, handling, storage, and disclosure of personal data of patients or
other personal identifying information exchanged or stored in connection with their relationship.
The Parties agree as follows:
DEFINITIONS
All capitalized terms used in this Agreement but not otherwise defined shall have the
meaning set forth in the Privacy Rule, Security Rule and HITECH.
PERMITTED USES AND DISCLOSURES OF PHI
Unless otherwise limited herein, Business Associate may:
(a) use or disclose PHI to perform functions, activities or Services for, or on behalf of,
Covered Entity as requested by Covered Entity from time to time, provided that such use or
disclosure would not violate the Privacy or Security Regulations or the standards for Business
Associate Agreements set forth in 45 C.F.R. § 164.504(e), exceed the minimum necessary to
accomplish the intended purpose of such use or disclosure, violate the additional requirements of
HITECH contained in Public Law 111-005 that relate to privacy and security, or violate the 42
C.F.R. Part 2 Regulations, California Law, Medi-Cal Requirements, and other applicable federal
or state law;
(b) disclose PHI for the purposes authorized by this Agreement only: (i) to its
employees, subcontractors and agents; (ii) as directed by this Agreement; or (iii) as otherwise
permitted by the terms of this Agreement;
(c) use PHI in its possession to provide Data Aggregation Services to Covered Entity as
permitted by 45 C.F.R. § 164.504(e)(2)(i)(B) if necessary to provide the Services under this
Agreement;
(d) use PHI in its possession for proper management and administration of Business
Associate or to carry out the legal responsibilities of Business Associate as permitted by 45
C.F.R. § 164.504(e)(4)(i);
(e) use PHI to report violations of law to appropriate Federal and state authorities,
consistent with 45 C.F.R. § 164.502(j)(1) and to the extent permitted by the 42 C.F.R. Part 2
Regulations, California Law, and Medi-Cal Requirements;
(f) de-identify any PHI obtained by Business Associate under this Agreement for further
use or disclosure only to the extent such de-identification is necessary for the provision of
Services pursuant to this Agreement, and use such de-identified data in accordance with 45
C.F.R. § 164.502(d)(1); and
RESPONSIBILITIES OF THE PARTIES WITH RESPECT TO PHI
Responsibilities of Business Associate. With regard to its use and/or disclosure of PHI,
Business Associate shall:
(a) acknowledge that PHI may also be subject to the Part 2 Regulations (referred to
as “Part 2 Information”) and that it is fully bound by the provisions of the Part 2 Regulations and
the HIPAA Regulations in receiving, transmitting, transporting, storing, processing, or otherwise
dealing with, any Part 2 Information as it would apply to a “program” as defined in the Part 2
Regulations.
(b) ensure that any Part 2 Information will not be re-disclosed to any other person or
entity, including an agency or Subcontractor who provides services to Business Associate, except
as permitted by the Part 2 Regulations;
(c) resist any efforts in judicial or administrative proceedings (including court order
and subpoena) if necessary, any efforts to obtain access to information pertaining to PHI and Part
2 Information, except as permitted by the Part 2 Regulations;
(d) use and/or disclose the PHI only as permitted or required by this Agreement or as
otherwise Required by Law;
(e) report to the privacy officer of Covered Entity immediately (i) any use and/or disclosure of the
PHI that is not permitted or required by this Agreement of which Business Associate becomes
aware, and (ii) any Breach of unsecured PHI as specified by HITECH, the Breach Notification
Rule, and (iii) any actual or suspected use or disclosure of data in violation of any applicable
federal or state laws by Business Associate or its agents or subcontractors upon Business
Associate’s determination of the occurrence of such unauthorized use and/or disclosure. In such
event, the Business Associate shall, in consultation with the Covered Entity, mitigate, to the
extent practicable, any harmful effect that is known to the Business Associate of such improper
use or disclosure. The notification of any Breach of unsecured PHI shall include, to the extent
possible, the identification of each individual whose unsecured PHI has been, or is reasonably
believed by the Business Associate to have been, accessed, acquired, used or disclosed during the
Breach, as well as any other available information that Covered Entity is required to include in
Breach notification to the individual, the media, the Secretary, and any other entity under the
Breach Notification Rule and any other applicable state or federal laws, including, but not limited
to, 45 C.F.R. §§ 164.404 through 164.408. If any required information is not available at the
time of notification, it shall be reported to Covered Entity as soon as such information becomes
available. Business Associate shall cooperate fully with Covered Entity in meeting Covered
Entity's obligations with respect to such Breach.
(f) use commercially reasonable safeguards to maintain the security of the PHI and to
prevent use and/or disclosure of such PHI other than as provided herein;
(g) obtain and maintain an agreement with each of its subcontractors and agents that
receive, use, or have access to PHI pursuant to which agreement such subcontractors and agents
agree to adhere to the same restrictions, conditions, and requirements on the use and/or disclosure
of PHI that apply to Business Associate pursuant to this Agreement;
(h) make available all internal practices, records, books, agreements, policies and
procedures and PHI relating to the use and/or disclosure of PHI to the Secretary for purposes of
determining Covered Entity or Business Associate’s compliance with the Privacy Rule;
(i) document disclosures of PHI and information related to such disclosure and, within
ten (10) days of receiving a written request from Covered Entity, provide 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
C.F.R. § 164.528, as well as provide an accounting of disclosures, as required by HITECH,
directly to an individual provided that the individual has made a request directly to Business
Associate for such an accounting. At a minimum, the Business Associate shall provide the
Covered Entity with the following information: (i) the date of the disclosure, (ii) the name of the
entity or person who received the PHI, and if known, the address of such entity or person; (iii) a
brief description of the PHI disclosed; and (iv) a brief statement of the purpose of such disclosure
which includes an explanation of the basis for such disclosure. In the event the request for an
accounting is delivered directly to the Business Associate, the Business Associate shall, within
two (2) business days, forward such request to the Covered Entity. The Business Associate shall
implement an appropriate recordkeeping process to enable it to comply with the requirements of
this Section;
(j) subject to Section 4.4 below, return to Covered Entity within twenty-one (21) days of
the termination of this Agreement, the PHI in its possession and retain no copies, including
backup copies;
(k) disclose to its 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 hereunder;
(l) if all or any portion of the PHI is maintained in a Designated Record Set:
(i) upon ten (10) business days’ prior written request from Covered Entity,
provide access to the PHI in a Designated Record Set to Covered Entity or, as directed by
Covered Entity, the individual to whom such PHI relates or his or her authorized
representative to meet a request by such individual under 45 C.F.R. § 164.524; and
(ii) upon ten (10) business days’ prior written request from Covered Entity,
make any amendment(s) to the PHI that Covered Entity directs pursuant to 45 C.F.R.
§ 164.526;
(m) maintain policies and procedures to detect and prevent identity theft in connection
with the provision of the Services, to the extent required to comply with the Red Flag Rules;
(n) notify the Covered Entity within five (5) days of the Business Associate’s receipt of
any request or subpoena for PHI. To the extent that the Covered Entity decides to assume
responsibility for challenging the validity of such request, the Business Associate shall cooperate
fully with the Covered Entity in such challenge;
(o) maintain a formal security program materially in accordance with all applicable data security and
privacy laws and industry standards designed to ensure the security and integrity of the Covered
Entity’s data and protect against threats or hazards to such security;
(p) to the extent that Business Associate carries out one or more of Covered Entity’s obligations
under the Privacy Rule, comply with the requirements of Privacy Rule that apply to the Covered
Entity in the performance of such obligations. Business Associate further acknowledges that,
pursuant to HITECH, the applicable provisions of HIPAA apply to Business Associate in the
same manner that such sections apply to Covered Entity;
(q) acknowledge that it is obligated by law to comply, and represents and warrants that it shall
comply, with HIPAA, HITECH, the HIPAA Regulations, the Part 2 Regulations, and the Red
Flags Rules, as applicable. Business Associate further represents and warrants that it shall
comply with all applicable state privacy and security laws, to the extent that such state laws are
not preempted by HIPAA or HITECH and acknowledges that, as between the Business Associate
and the Covered Entity, all PHI shall be and remain the sole property of the Covered Entity.
Additional Responsibilities of Business Associate with Respect to EPHI. In the event
that Business Associate has access to EPHI, in addition to the other requirements set forth in this
Agreement relating to PHI, Business Associate shall:
(a) implement administrative, physical, and technical safeguards that reasonably and
appropriately protect the confidentiality, integrity, and availability of EPHI that Business
Associate creates, receives, maintains, or transmits on behalf of Covered Entity as required by 45
C.F.R. Part 164, Subpart C;
(b) ensure that any subcontractor or agent to whom Business Associate provides any
EPHI agrees in writing to implement reasonable and appropriate safeguards to protect such EPHI;
and
(c) report to the privacy officer of Covered Entity, in writing, any Security Incident involving EPHI
of which Business Associate becomes aware within two (2) business days of Business
Associate’s discovery of such Security Incident or sooner if practical. For purposes of this
Section, a Security Incident shall mean (consistent with the definition set forth at 45 C.F.R. §
164.304), the attempted or successful unauthorized access, use, disclosure, modification, or
destruction of information or interference with systems operations in an information system. In
such event, the Business Associate shall, in consultation with the Covered Entity, mitigate, to the
extent practicable, any harmful effect that is known to the Business Associate of such improper
use or disclosure. If such Security Incident constitutes a Breach of Unsecured PHI, Business
Associate shall comply with the notification requirements set forth in Section 1.02(e).
Responsibilities of Covered Entity. Covered Entity shall, with respect to Business
Associate:
(a) provide Business Associate a copy of Covered Entity’s notice of privacy practices
(“Notice”) currently in use;
(b) notify Business Associate of any limitations in the Notice pursuant to 45 C.F.R.
§ 164.520, to the extent that such limitations may affect Business Associate’s use or disclosure of
PHI;
(c) notify Business Associate of any changes to the Notice that Covered Entity provides
to individuals pursuant to 45 C.F.R. § 164.520, to the extent that such changes may affect
Business Associate’s use or disclosure of PHI;
(d) notify Business Associate of any changes in, or withdrawal of, the consent or
authorization of an individual regarding the use or disclosure of PHI provided to Covered Entity
pursuant to 45 C.F.R. § 164.506 or § 164.508, to the extent that such changes may affect Business
Associate’s use or disclosure of PHI; and
(e) notify Business Associate, in writing and in a timely manner, of any restrictions on
use and/or disclosure of PHI as provided for in 45 C.F.R. § 164.522 agreed to by Covered Entity,
to the extent that such restriction may affect Business Associate’s use or disclosure of PHI.
TERMS AND TERMINATION
Term. This Agreement shall become effective on the Effective Date and shall continue in
effect unless terminated as provided in this Article 4. Certain provisions and requirements of this
Agreement shall survive its expiration or other termination as set forth in Section 5.1 herein.
Termination. Either Covered Entity or Business Associate may terminate this Agreement
and any related agreements if the terminating Party determines in good faith that the terminated Party has
breached a material term of this Agreement; provided, however, that no Party may terminate this
Agreement if the breaching Party cures such breach to the reasonable satisfaction of the terminating Party
within thirty (30) days after the breaching Party’s receipt of written notice of such breach.
Automatic Termination. This Agreement shall automatically terminate without any
further action of the Parties upon the termination or expiration of Business Associate’s provision of
Services to Covered Entity.
Effect of Termination. Upon termination or expiration of this Agreement for any reason,
Business Associate shall return all PHI pursuant to 45 C.F.R. § 164.504(e)(2)(ii)(I) if, and to the extent
that, it is feasible to do so. Prior to doing so, Business Associate shall recover any PHI in the possession
of its subcontractors or agents. To the extent it is not feasible for Business Associate to return or destroy
any portion of the PHI, Business Associate shall provide Covered Entity a statement that Business
Associate has determined that it is infeasible to return or destroy all or some portion of the PHI in its
possession or in possession of its subcontractors or agents. Business Associate shall extend any and all
protections, limitations and restrictions contained in this Agreement to any PHI retained after the
termination of this Agreement until such time as the PHI is returned to Covered Entity or destroyed.
MISCELLANEOUS
Survival. The respective rights and obligations of Business Associate and Covered Entity
under the provisions of Sections 4.4, 5.1, 5.6, and 5.7, and Section 2.1 (solely with respect to PHI that
Business Associate retains in accordance with Section 4.4 because it is not feasible to return or destroy
such PHI), shall survive termination of this Agreement until such time as the PHI is returned to Covered
Entity or destroyed. In addition, Section 3.1(i) shall survive termination of this Agreement, provided that
Covered Entity determines that the PHI being retained pursuant to Section 4.4 constitutes a Designated
Record Set.
Amendments; Waiver. This Agreement may not be modified or amended, except in a
writing duly signed by authorized representatives of the Parties. To the extent that any relevant provision
of the HIPAA, HITECH or Red Flag Rules is materially amended in a manner that changes the
obligations of Business Associates or Covered Entities, the Parties agree to negotiate in good faith
appropriate amendment(s) to this Agreement to give effect to the revised obligations. Further, no
provision of this Agreement shall be waived, except in a writing duly signed by authorized representatives
of the Parties. A waiver with respect to one event shall not be construed as continuing, or as a bar to or
waiver of any right or remedy as to subsequent events.
No Third Party Beneficiaries. Nothing express or implied in this Agreement is intended
to confer, nor shall anything herein confer, upon any person other than the Parties and the respective
successors or assigns of the Parties, any rights, remedies, obligations, or liabilities whatsoever.
Notices. Any notices to be given hereunder to a Party shall be made via U.S. Mail or
express courier to such Party’s address given below, and/or via facsimile to the facsimile telephone
numbers listed below.
If to Business Associate, to:
Netsmart Technologies, Inc.
4950 College Blvd.
Overland Park, KS
Attn: Chief Privacy Officer
Tel: 800-421-7503
If to Covered Entity, to:
County of Fresno
Department of Behavioral Health
Attn: Director
Tel: (559) 600-9193
Each Party named above may change its address and that of its representative for notice by the giving of
notice thereof in the manner hereinabove provided. Such notice is effective upon receipt of notice, but
receipt is deemed to occur on next business day if notice is sent by FedEx or other overnight delivery
service.
Counterparts; Facsimiles. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original. Facsimile copies hereof shall be deemed to be
originals.
Choice of Law; Interpretation. This Agreement shall be governed by the laws of the State
of California; as provided, however, that any ambiguities in this Agreement shall be resolved in a manner
that allows Business Associate to comply with the Privacy Rule, and, if applicable, the Security Rule and
the CMIA.
IndemnificationBusinessAssociatewillindemnify,defendandholdharmlessCoveredEntityanditsrespectiveemployees,directors,officers,subcontractors,agentsandaffiliatesfromandagainstallclaims,actions,damages,losses,liabilities,fines,penalties,costsorexpenses,includingreasonableattorneys’fees(Damages)sufferedbyCoveredEntityarisingfromanyactsoromissionsinconnectionwiththisAgreement,byBusinessAssociateorbyitsemployees,directors,officers,subcontractors,oragents.ThereferencedlimitationofliabilitywillnotapplytoandNetsmartwillfullyindemnifyCoveredEntityfor:(a)CoveredEntity’sreasonablecostsofnotice,mitigationorremediationofanyBreachofUnsecuredPHIoracquisition,access,use,ordisclosureofdatainamannernotpermittedbythisAgreementthatisattributabletoanyactoromissionofBusinessAssociateoritsagentsorsubcontractors.fb)FinesorpenaltiesthatareassessedagainstCoveredEntitybyastateorfederalregulatoryagencyforanactoromissionofBusinessAssociateorbyitsemployees,directors,officers,subcontractors,oragentsonatheoryofagencyorvicariousliability.(c)DamagesresultingfromanynegligentorwillfulactsoromissionsofCoveredEntityinconnectionwiththisAgreementareexceptedfromthisindemnificationrequirement..ItistheintentofthepartiestothisAgreementtoprovidethebroadestpossibleindemnificationforCoveredEntity.BusinessAssociateshallreimburseCoveredEntityforallcosts,attorneys’fees,expenses,andliabilitiesincurredbyCoveredEntitywithrespecttoanyinvestigation,enforcementproceedingorlitigationinwhichBusinessAssociateisobligatedtoindemnify,defend,andholdharmlessCoveredEntityunderthisAgreement.ThisprovisionisinadditiontoandindependentofanyindemnificationprovisioninanyrelatedorotheragreementbetweentheCoveredEntityandtheBusinessAssociate,includingtheunderlyingAGREEMENT.INWITNESSWHEREOF,eachoftheundersignedhascausedthisAgreementtobedulyexecutedinitsnameandonitsbehalfasoftheEffectiveDate.IS'TJSC[BUSINESSASSOCIATECOUNTYOFFRESNO,ONBEHALFOFTHEDEPARTMENTOFBEHAVIORALHEALTHB/'/riPrintName:(I f)Cjj~OV'N^£v/pPrintTitle:.Date:Bv:PrintName:D0^Lthc/cf~PrintTitle:Date:Directorl"9-3-/7/-/3~7-0O
SCHEDULE I: NETSMART HOSTING
ADDENDUM TO LICENSE
This Addendum is effective on the effective date of
the Agreement (“Addendum Effective Date”).
1. PURPOSE OF ADDENDUM This
Addendum states the terms and conditions under
which Contractor will provide software hosting
services and permit County to load Data on the
Hosted System via a virtual private network
(“VPN”) or Secure Socket Layer (“SSL”).
2. DEFINITIONS Capitalized terms in this
Addendum that are not defined below will have
the same meaning as the terms that are given in
the Agreement. All references to Schedules mean
the Schedules attached to this Contractor Hosting
Addendum to License unless otherwise indicated.
a) “Migration” refers to all services, activities,
and infrastructure associated with the
migration of the County’s Avatar system and
all associated components from the County
Network to Contractor’s Plexus Cloud. An
example project plan and narrative
description of activities are provided in
Schedule 2(a). After the signing of this
agreement, the County and Contractor Project
Managers will define a mutually acceptable
Project Plan and Timeline.
b) "County Hardware" means the computer
hardware and communications equipment
required by County to log on to the System
and use the Software Services and is the
responsibility of County to obtain.
c) “Data” has the meaning provided in Section 6
d) “Hosted System” means the hardware and
software in Contractor’s data center,
including the Licensed Programs as defined
in the Agreement that are used to provide
Software Services to County. A brief
overview of the components and services of
the “Hosted System” is set forth in
Addendum Schedule 2(b)
e) “Month 1” means the first day of the first
month after mutual contract execution.
f) “Contractor Provided Hardware” means any
equipment provided to the County by
Contractor
g) "Service Charges" means the amount to be
paid by County for
i) Contractor’s data center usage;
ii) Any Contractor Provided Hardware ;
iii) Any Professional Services
iv) The payment terms for Service Charges
is set forth in “Schedule A – Charges and
\\Payment Terms” of the Agreement and
referenced again in Schedule 2(c) of this
addendum.
h) “SLA” is an abbreviation for Service Level
Agreement. The Service Level Agreement,
or SLA, describes the functions, features and
performance capabilities of the Hosted
System as available at County’s site and is set
forth in Addendum Schedule 2(d).
3. TERM
a) Contractor hereby grants County a non-
transferable, non-exclusive right to access the
Hosted System from Contractor’s Data
Center for a period of 66 months from the
Addendum Effective Date expiring on June
30, 2022 (“Addendum Initial Term”), with
the option to extend the AGREEMENT for
two additional one year periods. County is
not required to state a reason if it elects not to
renew.
b) If this AGREEMENT includes options for
renewal or extension, CONTRACTOR will
notify COUNTY of a proposed rate change a
minimum of ninety days (90) prior to the
expiration of the AGREEMENT. Both
parties must agree to any rate changes in
writing.
c) The Hosted Software Services may be used
by County only:
i) for County’s internal business purposes
and not to process the data of any other
entity; and
ii) for access by the maximum number of
named users permitted under the
Agreement; and
iii) so long as the County is not otherwise in
default under the Agreement or this
Addendum.
Subsections (i), (ii), and (iii) above shall be
understood to permit non-employees of County,
such as agents or contractors who have a need for
access to the Licensed Programs to support the
internal operations of County, to be added as
named users for the Licensed Programs.
d) This Addendum does not convey to County
any title or ownership interest in the Hosted
Systems or the Licensed Programs. County
has additional rights in the Licensed
Programs, however, under the Agreement.
e) The Hosting Services covered by this
Addendum are provided solely to County.
County is prohibited from engaging in any
activity that makes these Hosting Services
available to third parties.
4. CHARGES AND PAYMENT TERMS
County agrees to pay Contractor in accordance
with Section 7 and Schedule A.
5. TAXES
The Charges set forth in this Agreement do not
include any taxes. Where applicable, there shall
be added to such Service Charges and County
shall pay amounts equal to any taxes (however
designated, levied, or based) on such Service
Charges including, but not limited to, state and
local sales, privilege, property, use or excise
taxes, but not including taxes based on the net
income of Contractor.
6. PROTECTION OF COUNTY DATA
As used in this paragraph 6, the word "Data"
means all information acquired from County that
will reside on a Contractor secure server and be
maintained for County during the performance of
this Agreement. Contractor will maintain the Data
in accordance with generally accepted security
standards applicable to protected health
information and as required by law. Upon
termination of this Agreement for any reason
Contractor shall furnish all Data to County as
soon as reasonably practical in a mutually
acceptable industry standard format. If
professional services are required to convert or
format the Data to meet requested format, County
will pay for such professional services as an
additional charge.
7. GENERAL TERMS
Except as expressly set forth in this Addendum,
the relationship between Contractor and County
will be governed by the provisions of the
Agreement.
8. SURVIVAL OF TERMS
In the event this Addendum terminates pursuant
to its terms, the Agreement will continue in full
force and effect.
9. CROSS DEFAULT
A default by County and resulting termination of
the Agreement will similarly terminate the license
rights granted by this Addendum. A default and
termination of this Addendum, however, will not
constitute grounds for termination of the
Agreement, unless the default under this
Addendum would likewise be grounds for
termination of the Agreement
Addendum Schedule I(a)
Overview of the “Hosted System” Components and Services
HOSTING COMPONENTS
A. Avatar Environment
Contractor will provide redundant middleware and ECP servers to [COUNTY] running through SSL, load
balanced with enterprise F5 load balancers, tied to a backend Cache database. This environment will be
replicated to our Kansas City data center with failover capabilities spelled out in the Disaster Recovery
portion of this document. The environment will be provisioned based up concurrent number of users and
estimated growth patterns. Contractor implements and utilizes real-time monitoring on Avatar hosted
system, providing feedback on all security, stability, and performance attributes of each system.
The Contractor Avatar environment is governed under an ISO 27000 series framework, consisting of an
extensive set of policies, procedures, and work instructions governing the planning, implementation,
management, and support of the environment. Contractor’s complete set of policies and procedures will
be provided under a separate cover.
Contractor Plexus Support includes application and database patching. Contractor encourages the
[COUNTY] to stay current with applications patches. Patches will be applied to [COUNTY] test
environments first, to be tested by Contractor and [COUNTY]. Upon successful testing and validation by
the [COUNTY], Contractor will schedule and apply patches to the [COUNTY]’s live environment at a
mutually agreeable time. Patches affecting core system security and stability, will be escalated and
applied to the [COUNTY] environment, as soon as reasonably possible, to ensure optimal security and
stability within the hosted Avatar solution.
Avatar application support will continue under the current Contractor Application support model. System
support, consisting of network connectivity, Cache database, security, and infrastructure system support is
provided by Contractor’s Plexus Cloud Systems Engineering team, Infrastructure Team, and Security
Teams. [COUNTY] will be provided all applicable support phone numbers, which include the general
hosting phone numbers, 24/7 phone numbers, and escalation phone numbers.
Contractor Plexus hosting support will continue to utilize the same priority ranking system representing
the severity of issue currently being encountered. Priority 1 (P1) issues represent a down system event or
significant event severely hampering core system functionality or availability, which have Contractor’s
support teams immediate engage with the [COUNTY] on addressing the issue. Priority 2 (P2) issues
represent a significant event occurring within the Avatar solution, while the core system remains
functional and accessible or critical system patches that need added to the environment. Contractor will
assign and initially engage with [COUNTY] within 12 hours, to begin work on a resolution. Priority 3
(P3) issues represent low priority issues, representing non-critical issues, non-critical patches, or
questions. Contractor will engage with the [COUNTY] within 48 hours and begin work on a resolution.
B. Avatar Disaster Recovery
Contractor provides redundant, dedicated virtualization throughout the entire Avatar environment,
including middleware, ECP, and database servers. The middleware and ECP systems employ load
balancing behind master F5 load balancers, monitoring performance and health of each device. System
failures are identified and routed around, by the load balancers. The database environment utilizes HA
server components, to fail over between servers, in the event of a failure. Replicated copies of the
middleware and ECP environments are maintained offline, at our secondary data center, and update on a
weekly basis or after any changes are made. The database server environments are replicated in real-time
to the secondary data center. Target RTO for Avatar failover to the secondary data center is 4 hours,
though generally can be completed in a matter of minutes. Target RPO for data loss is 30 minutes, though
all tests generally show times in the sub-2 minute timeframe.
Nightly backups of the Avatar environment occur to local tier III storage and to encrypted backup tapes,
which are taken offsite daily by Iron Mountain. Monthly restoration tests of random [COUNTY]
environments occur and are fully documented from all three sources of information
C. Scriptlink Hosting
Contractor will provide redundant Web Servers to support the hosting and execution of [COUNTY]
developed scripts. In order to provide administrative rights to this Web Server, Contractor provides
representatives from County secure access mechanisms into the Plexus Cloud Environment. The
environment will be provisioned based up concurrent number of users and estimated growth patterns.
Finally, as part of the Scriptlink Hosting Contractor will provide and manage all aspects of the
communication between the County’s Hosted Avatar Environment and the Scriptlink Web Servers.
The Contractor Avatar environment is governed under an ISO 27000 series framework, consisting of an
extensive set of policies, procedures, and work instructions governing the planning, implementation,
management, and support of the environment.
HOSTING SCOPE OF SERVICES
A .Netsmart Data Center Environments.The Netsmart Plexus Data Centers ("NPDC ")consist of a 2X primary
data center environment and an N+1 secondary datacenter environment ,both consisting of dual-fed,
redundant data operation facility intended to provide uninterrupted power and service for Netsmart clients.
The NPDC are designed to significantly reduce client downtime and operates under supervision twenty-four
(24)hours per day,seven (7)days per week ("24 x 7"),every day of the year .The NPDC houses all data
center equipment ,including hosted computing equipment ,network equipment ,and security equipment .Data
center monitoring systems include tire protection (detectors ,sprinklers ,and dry agent),mechanical systems,camera recording systems,entry alarms ,electrical systems,generator operations ,water detection systems ,
and card access control/biometrics access controls .Netsmart engineers observe systems 24 x 7 and report
alarms as needed.The following table sets forth the responsibilities of Netsmart and Client regarding thephysicalfacilities:
No.Table 1:
Facility Responsibility Description
Netsmart
NPDC
Client
1.1 Environment
1.1 .1 Provide the NPDC facility required to host the computing and network
environment
X
1.1 .2 Provide the NPDC equipment and third party software X
1.1 .3 Manage ,monitor and control the NPDC X
1.1 .4 Provide ary applicable U PS/temperature-controlled environment for
Netsmart provided equipment needed at Client site (e .g .network
equipment ,etc .)
X
1.1 .5 Provide appropriate rack space for Netsmart provided equipment at the
Client site ,if applicable
X
1.2 NPDC Facility Management and Monitoring
1.2 .1 NPDC power monitoring for generators -*X
1.2.2 Monitoring of chiller system for pressure,temp ,alarm and standby-*X
1.2 .3 Monitoring of electrical room for moisture ,UPS availability-*X
1.2 .4 Monitoring of NPDC data center air-conditioning units,including air
conditioning,power ,moisture,humidity and temperature-*
X
1.2 .5 Monitoring of NPDC Auto Transfer Switches .Monitors and activates
UPS /generator system as incoming power dictates-*
X
1.2 .6 Monitoring and control of the NPDC environment-*X
1.2 .7 Facility operation and maintenance-*X
1.3 NPDC Physical Security
1.3 .1 Camera monitoring is provided throughout the Data Center and
exterior entries.Multiple cameras provide views of the Data Center andallaccesspoints,which are visible at all times to the on-site operators .
All cameras continuously record to tape for future viewing and
investigation-*
X
1.3 .2 All primary doors are controlled by card access with biometric readers
in high-security areas .Multiple access points must be crossed toaccesstheDateCenterfloor-*
X
1.3 .3 All secured doors are electronic fail-secure strikes .All door hardware
and Monitorina are backed by emergency power-*
X
1.3 .4 Access to host facility is site-restricted via ACL's which are controlled
by Netsmart's security personnel
X
1.3 .5 Entry/exit points of service center are monitored via closed-circuit
television-*
X
B .Network Operations .As part of the NPDC Services ,Netsmartwill provide and manage many aspects of the
communications between the NPDC and the Client networks.Each section below describes a unique aspect
of the network infrastructure .There are three separate networks that must work together in unison to provide
seamless application delivery.In addition,each parly agrees to perform their respective network operations
responsibilities ,as set forth in Table 2 below .
1.NPDC Network Operation .The NPDC Network Operations are the network equipment,software,
and console systems that support the servers and databases for Client within a facility or facilities
that Netsmart manages .Netsmartwill provide and operate at the NPDC all network equipment,third
party software and console systems to host the Licensed Software ,equipment ,and certain third party
software (collectively ,the "Netsmart Environment").Netsmartwill provide a high-availability network
designed to remain fully operational in the event of any single equipment failure .Possible points of
equipmentfailure may include routers,switches ,load balancers ,and firewalls .Netsmartwill support,manage ,and maintain this equipment and third party software in a manner consistent with vendor
specifications and Netsmart best practices .Netsmart will provide network management of all
Netsmart-provided network components in the NPDC to maintain the service levels set forth in this
Netsmart System Schedule .
2 .Netsmart/Client provided Internet Communications .The Internet Communications Network
Operations are the communications infrastructures that include primary and secondary
communications circuits between the NPDC and the Internet ,and from the client LANWAN to the
Internet .The Netsmart circuits will be provisioned in a manner that maximizes existing physical circuit
diversity from a variety of Internet backbone providers ,at both data center environments .Thisprocessdoesnotguaranteephysicaldiversity;but rather provides the best practice for obtaining
physical diversity.The Netsmart Internet circuits will be sized in accordance with Netsmart best
practices for appropriate bandwidth,quality of service and responsiveness .Some metrics that may
be used for sizing include active concurrent users ,number and volume of interface traffic ,number
and volume of print activities ,etc All Netsmart-side circuit provisioning and management will be the
responsibility of Netsmart in conjunction with Netsm arts third party communications carriers .AllcommunicationsequipmentnecessarytoterminatetheseWANcircuitswillbeprovidedand
managed by Netsmart .The equipment may include routers ,switches ,firewalls ,out-of-band-
management consoles and power reboot switches as well as CSU /DSU circuit termination
equipment.All client-side circuit provisioning and management will be the responsibility of the client.
All communications equipment necessary to terminate these Internet circuits will be provided and
managed by the client .The equipment may include routers ,switches ,firewalls ,out-of-band-management consoles and power reboot switches as well as CSU /DSU circuit termination
equipment.Netsmart will assist Client in troubleshooting Internet issues that may involve Client's
network or client's Internet provider;however ,Netsmart reserves the right to charge for the time,
materials and travel and related expenses involved in resolution of problems that are determined to
originate within Client's network.
3 .Client-provided LAN /WAN .Client LAN and Client WAN will consist of any communications circuits ,
WAN termination equipment and LAN equipment not provided by Netsmart .These circuits andequipmentwillbemanagedandmaintainedbyClient.Netsmartwill assist Client in troubleshooting
issues that may involve Client's network;however,Netsmart reserves the right to charge for the time,
materials and travel and related expenses involved in resolution of problems that are determined to
originate within Client's network.
4 .Netsmart Provided MPLS Connectivity Client location will be provided (2)routers for connection to
Netsmart Technologies'MPLS network from client's internal network.An MPLS circuit will be
installed at the client location from (2)diverse carriers .Both circuits will be identical in capacity and
not less than 20Mbps .Circuits will be provisioned to have connectivity to both Netsmart data centers,
Columbus and Kansas City,through their respective MPLS cloud.Once installed ,both circuits and
routers will be active allowing traffic to utilize each connection
No.Table 2:
Network Operations Responsibility Description
Netsm art
NPDC Client
2.1 NPDC Network Operations
2.1 .1 All required network equipment within the NPDC ,such as routers ,
switches ,load balancers and consoles
X
2.1 .2 Network management of equipment and third party software ,including
routers ,switches ,load balancers and firewalls
X
2.1 .3 Redundant power circuits and power distribution X
2.1 .4 24 x 7 x 365 network support with level 2 and 3 backup available by
pager
X
2.1 .5 Monitoring Netsmart-provided applications response time,including
round trip latency from Netsm art's Internet providers
X
2.1 .6 Network management,support,installation,and configuration of
Netsmart-provided WAN circuits and WAN equipment
X
2.2 NetsmartClient provided Internet Communications Network
Operations
2.2 .1 Communications cincuit(s)from the NPDC to Internet Backbone X
2.2 .2 Network management including Monitoring systems,device
management and polling systems
X
2.2 .3 Monitoring of Netsmart-provided network routers ,including utilization ,memory,exception reporting,syslog,configuration management and
ACL hits/denies
X
2.2 .4 Monitoring of Netsmart-provided WAN links ups/downs ,error
thresholds ,bandwidth,and CIR packet flow/loss
X
2.2 .5 Communications circuit(s)from the CLIENT to Internet Backbone X
2.2 .6 Network management including Monitoring systems,device
management and polling systems
X
2.2 .7 Monitoring of client-provided network routers ,including utilization ,memory ,exception reporting,syslog,configuration management and
ACL hits/denies
X
2.2 .8 Monitoring of Client Gateway ups/downs ,router,switch ,power X
2.3 Client LAN.WAN Operations
2.3 .1 Network management,support,installation,and configuration of Client
provided WAN circuits and WAN Eguipment
X
2.3 .2 Network management,support,installation,and configuration of Client
LAN infrastructure
X
2.3 .3 Management of network printers ,terminal servers ,PCs ,terminals or
other Client-side eguioment
X
C.Systems Management .As part of the NPDC Services ,Netsmart will provide systems management services
for the management,security and performance of the computing systems required to operate the Licensed
Software.The "back-end system "includes third party software ,certain Sublicensed Software ,and host nodes
running the Licensed Software database as well as the Avaguard monitoring system ,and interface engine.This aspect of the back-end system also includes the storage technology and media .The back-end systems
also include the required operating systems ("OS")and layered products necessaryforthe System to operate.
The computing system includes the back-end system and the front-end application server resourcesnecessarytoprovideaccesstotheSystemandexecutestheLicensedSoftwareandserverrequirementsto
facilitate printing (excluding Client print servers required for and on Client LAN ).The computing system
includes management and Monitoring systems and software to monitor and report on system health,security,
capacity and availability.
The front-end system includes the required OS and layered-pro duct licenses (necessary forthe System to
operate .The system management services include the responsibility for the equipment and third party
software maintenance of the computing system and associated infrastructure in accordance with
manufacturer-recommended and supported practices .In addition,such services include processes andresourcestomonitorthecomputingsystemsandtoreportandalertoncompromisedsystemhealth,security,
capacity ,and availability.Furthermore ,Netsmart will:
Meet or exceed contracted performance,capacity ,and System Availability (as defined below)levels
using the appropriate management methodologies ,resources ,and tools for the Netsmart
Environments
Provide System perform ance Monitoring and tuning
Provide System capacity analysis and planning
Provide storage management for all the in-scope environments
Use and adhere to documented change management processes and procedures
Use and adhere to documented problem management processes ,procedures and escalation
guidelines
Provide and monitor mutually agreed-upon security functions in conjunction with Client's security
officer and in accordance with documented security policies
In addition ,each party agrees to perform their respective systems management responsibilities ,as setforth
in Table 3 below .
No .Table 3:
Systems Management Responsibility Description
Netsmart
NPDC
Client
3.1 Equipment and Third Party Software Acquisition and Provisioning
3.1 .1 Provide back-end computing systems consisting of CPU ,memory and
data storage required to operate the in-scope environment(s)
Back-end computing systems will be provided in accordance with
obligations setforth in this Netsmart System Schedule and certified by
Netsmart Engineering
X
3.1 .2 Provide OS and layered-product software licenses for back-end
systems reguired to operate the in-scope environment(s)
X
3.1 .3 Purchase of database Sublicensed Software and ongoing Sublicensed
Software Maintenance fees
X
3.1 .4 Provide front-end computing systems necessary to facilitate Client
access to their specific in-scope environment(s)
Front-end computing systems will be provided in accordance with
obligations setforth in this Netsmart System Schedule and certified by
Netsmart Engineering
X
3.1 .5 Provide OS and layered-product software licenses for front-end
systems required to operate the in-scope environment(s)
X
3.1 .6 Provide system s and third party software necessary for Netsmart to
manage and monitor back-end and front-end systems
X
3.1 .7 Provide front-end servers required to facilitate printing from the in¬
scope environment(s),excluding Client-specific print servers requiredforlocalprintingonClientsite
X
3.1 .8 Provide systems required for Client local printing from Avatar and non-
Avatar applications
X
3.1 .9 Provide systems required for Client access to Client's LAN (e.g .local
authentication ,primary/backup domain controllers)and other non-
Avatar functionality
X
3.1 .10 Provide front-end computing systems necessary to facilitate local
Client Licensed Software installation .Computing systems must meet
Netsmart minimum system requirements
X
3.2 Management and Monitoring
3.2 .1 Apply OS and layered-product service packs to front-end and Pack-end
systems as required to maintain system health,security,availabilityandcapacity
X
3.2.2 Monitor the computing systems (24 x 7)to report and alert on
compromised system health,security,availability and capacity
X
3.2 .3 Reboot back-end and front-end computing systems on a recurring
schedule to optimize performance of the computing environment
X
3.2 .4 Monitor charting application services (charting and Remote Report
Distribution)for successful completion
X
3.2 .5 Resubmit and/or reroute any failed print jobs X
3.2 .6 Provide OS and layered-product software licenses for front end
systems required fora local Avatar application installation (Windows ,
Crystal)
X
3.3 Security Administration
3.3 .1 Provide system third party software and equipment security controls X
3.3 .2 Monitor System security errors ,exceptions and attempted violations as
dictated by standard procedures
X
3.3 .3 Host facility physical security measures and controls X
3.3 .4 Secure backup media with check-in and check-out procedures X
3.3 .5 Store Client's backup media in a mannerthatwill protect the
confidentiality of the data stored on them and ensure that such data
remain Client's properly
X
3.3 .6 Run and monitor continuous intrusion detection software on both host
and network-based systems
X
3.3 .7 Provide secure environment for on-site and off-site storage for backups X
3.3 .8 Virus detection and correction as required X
3.3 .9 Provide corporate IT Security Manager to monitor and enforce security
procedures and resolve exception report issues
X
3.3 .10 Provide logical security using lockdown procedures post production X
3.3 .11 Assign and manage accounts for Client users to access systems X
3.3 .12 Designate assigned security representative to ensure personnel have
appropriate access and be responsible for review of access controls ,
etc .
X
3.4 Other Third-Party Software
3.4 .1 Provide adequate licenses forthird party products used to augment
Avatar functionality
Third-party products will be implemented in accordance with
obligations set forth in the contract and certified by Netsmart
Engineering
X
3.5 Miscellaneous Technologies Selection,Deployment and
Management
3.5 .1 Provide ,configure ,host and manage other non-Avatar resourcesdeployedtoaugmentAvatarfunctionality(excluding those which have
not been identified as Netsmart Avatar technology partners)
Resources excluded may consist of ,but are not limited to,biometric
authentication application and database servers ,and medical encoding
application and database servers
X
3.5 .2 Select peripheral technologies certified by Netsmart and consult with
Netsmart Technical Project Manager prior to final selection
Peripheral technologies consist of PCs ,thin client devices ,hand-held
devices ,printers ,document scanners ,and barcode scanners
Netsmart is responsible for providing Client with a list of validateddevices,and Client is responsible for making their selection and
verifying with the TPM that it is valid according to the list provided
X X
3.5 .3 Procurem ent and deployment of peripheral technologies in accordance
with Netsmart-certified configurations
X
3.5 .4 Peripheral devices configuration ,management and maintenance (Web
browser configuration,connectivity,rebooting ,paper ,toner,paperjam,
device offline,etc .)
X
3.5 .5 Client site peripheral management (adds ,mcves and changes-some
changes may require NPDC assistance to implement)
X
3.5 .6 Provide virtual access to peripherals and interfaces as needed to
support Client
X
D.Database Administration.Netsmart will provide the ability to implement and maintain database access ,
performance and availability in a consistent and efficient manner across all System environments .Client will
maintain the content and integrity of the database.Netsmart will:
Install and maintain Database Management System ("DBMS ")software as defined in Table 4 below
Provide appropriate database management methodologies ,resources and tools to manage,
troubleshoot ,backup and recover the database environments .
Monitor and report on database performance and capacity
Provide DBMS storage management
Monitor and manage database security
Maintain offsite backup of the System and Client data (the offsite media backup will operate and
perform in a manner com parable to NPDC with respect to both System and Client data)
In addition,each party agrees to perform their respective database administration responsibilities ,as set forthinTable4below.
No.Table 4:
Database Administration Responsibility Description
Netsmart
NPDC
Client
4.1 Software Installation and Upgrade
4.1 .1 Installation ,management,and upgrading of third party database
software necessaryto supportthe Licensed Software .
X
4.1 .2 Certification of application environment after database or other
upgrade
X
4.2 Performance Management and Monitoring
4.2.1 Monitor database alert logs X
4.2.2 Monitor database number of extents remaining X
4.2.3 Monitor database fneespace X
4.2.4 Monitor database fneespace deficits X
4.2.5 Monitor database instance status X
4.2.6 Monitor database lock conflicts X
4.2.7 Monitor space available in tablespace X
4.2.8 Monitor status of database listeners X
4.2.9 Reorg/defragm ent database objectsAablespace X
4.2.10 Analysis and tuning of any custom scripts developed by Client or third-party
X
4.2.11 Monitor basic database performance characteristics such as I /O X
4.2.12 Monitor and m anage file and tablespace X
4.3 Backup,Restore and Recovery
4.3 .1 Perform system backups as specified in standard backup procedure X
4.3 .2 Media rotation X
4.3 .3 Verify backup logs X
4.3 .4 Maintain and document backup requirements X
4.3 .5 Coordinate offsite storage functions ,including logging,tracking ,
labeling ,ordering ,receiving and sending storage media
X
4.3 .6 Restore System data as required X
4.3 .7 Define System-wide recovery and backup requirements X
4.3 .8 Schedule and test routine recovery procedures X
4.3 .9 Perform the required frequency of replacement for all media in storage X
4.3 .10 Backup of Client-based PCs and servers X
4.3 .11 Verification of restored environment X
E .Applications Management .Applications Management services are the services required to manage the
Licensed Software application level of the System .As part of the NPDC Services ,Netsm art's prim ary function
with respect to Applications Management is in the areas of service package management,application server
management,and monitoring and reporting on application processes .Each party agrees to perform their
respective Applications Management responsibilities ,as set forth in Table 5 below.Netsmartwill upgrade the
System as required to keep Client on a supportable release;but not more frequently than limit set forth in the
scope of use table above .Specific service packages will be made available as required to address a medical
need ,financial need or regulatory requirement .Client will,at its own expense ,support,manage and providetrainingforallLicensedSoftware,including without limitation all maintenance and build activities related to
production financial and clinical applications and Licensed Software upgrades .Client agrees to use
"superusers”to provide Licensed Software management support.
No.Table 5:
Applications Management Responsibility Description
Netsm art
NPDC
Client
5.1 Service Package Management
5.1 .1 Load patches and Service Packages as required to meet contractual
agreements
X
5.1 .2 Installation of New Releases on a periodic basis ,subject to notice and
approval by Client .(Frequency as set forth in the scope of use limit
section above)
X
5.1 .3 Perform back-end special instructions for service package loads X
5.1 .4 Perform front-end special instructions for service package loads X
5.1 .5 Support applications testing by providing a certification domain to Client
as required to support contractual commitments
X
5.1 .6 Monitor Licensed Software notifications for issues related to patientcare,financial burden,or performance
X
5.1 .7 Request patches &service packages as needed to keep the System at
a supportable level (as defined above)
X
5.1 .8 Perform application special instructions for service package loads as
needed
X
5.1 .9 Perform service package certification guidelines as needed X
5.1 .10 Test service packages /application enhancements ,fixes and upgrades
and assure the integrity of the resulting data.Client is responsible for
final signoff
X
5.1 .11 Perform and manage the process for local installations of the Licensed
Software application on Client PCs
X
5.2 Monitoring tasks
5.2 .1 Monitor Application Servers for appropriate number/lips/downs X
5.2 .2 Monitor orphaned journal transactions X
5.2 .3 Monitor Avatar System Access logs and perform maintenance X
5.2 .4 Verify client record status X
5.3 Audit reports and logs
5.3 .1 Review/monitor audit reports and logs X
5.3 .2 Perform Client audits/reports/tools X
5.4 User accounts
5.4 .1 Establish ongoing setup and maintenance of user accounts for
Licensed Software products
X
5.5 Maintenance Activities
5.5 .1 Cycle Application Servers as needed X
5.5 .2 Perform event code/event set changes as reguired X
5.5 .3 Provide and maintain application-specific security such as task access ,
positions ,and role setup
X
5.5 .4 Train end users on application X
5.5 .5 Maintain change management of all local installations of the Licensed
Software applications on Client PCs
X
5.6 Avatar Software Operations
5.6.1 Perform Daylight Savings Time management activities X
5.6 .2 Notify Client help desk of issues found that affect service X
5.6 .3 Set up and review purges and operations jobs X
5.6 .4 Run/review Licensed Software operations X
5.6 .5 Add/remcve operations iobs X
5.6 .6 Monitor operations for successful completion X
5.6 .7 Restart production jobs as required X
F.Interface Management.Interfaces include both medical device interfaces f 'MDI ")and foreign system
interfaces ("FSI ")that reside on the System .Each parly agrees to perform their respective Interface
Management responsibilities,as set forth in Table 6 below .
No.Table 6:
Interface Management Responsibility Description
Netsmart
NPDC
Client
6.1 Monitoring
6.1 .1 Monitor Netsmart outbound interface queue counts and over-threshold
alarms
X
6.1 .2 Monitor and cycle inbound interfaces as required to establish
connections or start transactions sending
X
6.1 .3 Monitor Netsmart inbound cycle times over-threshold alarms X
6.2 Management
6.2 .1 Notify Client help desk of issues found that affect service X
6.2 .2 Notify Netsmart Hosting Support when cycling interface/VPN 's or of
known ups/downs
X
6.2 .3 Review system access logs X
6.2 .5 Review error logs X
6.2 .6 Notify Netsmart's Hosting Support of issues found that affect service X
G.Administration.Each party agrees to perform their respective administrations responsibilities ,as set forth in
Table 7 below .
1 .Chancre Management.Netsmartand Client will follow a formal process for changes that could affect
the hosted System .Netsm art will provide a copy of the change management procedure to Client.
This process (i)ensures that changes occur in a controlled environment so that all parties understand
the potential impact of an impending change ,and (ii)identifies potentially affected systems andprocessespriortoimplementationofthechange(s).Client must authorize all changes that affect
production domains as specified in the standard change management procedure .Client agrees tocooperatewithNetsmartinconnectionwithprovidingreasonableandappropriatemaintenance
windows and participating in the testing as reasonably required .
2 .Problem Management.Problem management is the identification,assessment of impact ,reporting,
tracking,escalation,notification ,and resolution of problems that occur in the NPDC.Client is
responsible for maintaining a staffed help desk that will provide the first line of support for users and
data coordination calls.This line of support must be able to distinguish application issues versus
connectivity or infrastructure issues .In addition ,the use of ''superusers''at Client site should be
maintained to address application-specific issues .
3.Audit .Upon written notice from Client to Netsmart's VP of Hosting/Systems Engineering ,Netsmart
will permit access to the NPDC and processing environment for Client's auditors and/or an
independent third party retained by Client .Client will provide Netsmart's VP of Hosting/Systems
Engineering an audit agenda two (2)weeks prior to audit date.Any such audit conducted by Client
auditors and/or an independent third party auditor retained by Client shall be limited to one (1 )auditpercalendaryear.Netsmart shall provide reasonable support and assistance during any such
audit(s)to include preparation,pre-audit events and 1 business day of physical NPDC access.
Netsmart will conduct a periodic independent audit (internal or third party)of the NPDC operating
environment in accordance with applicable standards .Questions regarding NPDC audits should be
directed to Netsmart's VP of Hosting/Systems Engineering .
No.Table 7:
Administration Responsibility Description
Netsmart
NPDC
Client
7.1 Change Management
7.1 .1 Provide and maintain an automated change management system for
the centralized reporting and tracking of changes made by Netsmart
personnel
X
7.1 .2 Provide a weekly Avatar patching maintenance window X
7.1 .3 Allow for a monthly global maintenance window X
7.1 .4 Notify Netsmart of planned outages on Client side X
7.1 .5 Designate at least two individuals responsible for signing change forms X
7.1 .6 Notify Netsmart of changes to Client environment X
7.1 .7 Certify ALL changes prior to moving them to production X
7.1 .8 Test application enhancements ,fixes ,and upgrades and assure the
integrity of the resulting data
X
7.1 .9 Provide sufficient advance notice (6 months)to Netsmart of material
changes to Client growth (eg.,order volumes ,users)
X
7.2 Problem Management
7.2 .1 Provide and maintain a method for proper escalation of problems within
Netsmart hosting management
X
7.2 .2 Log all incidents and problems in accordance with documented
processes .
X
7.2 .3 Maintain ownership of all problems related to Netsmart services through
closure or until agreement that the problem is not within Netsmart's
scope of responsibility
X
7.2 .4 Provide appropriate contact numbers or other information necessary to
communicate with key NPDC support staff
X
7.2 .5 Perform post-mortem reviews on problems that affect service level
standards ,including root cause analysis if possible X
7.2 .6 Notify Netsmart's hosting support desk of issues found that affect
service
X
7.2 .7 Staff operations 24 x 7 X
7.2 .8 Provide on-cal I technical staff 24 x 7 X
7.2 .9 Ensure proper notification and escalation in accordance with standard
operating procedures
X
7.2 .10 Maintain Client help desk to provide first line of support for Users X
7.2 .11 Identity applications issues versus connectivity issues X
7.2 .12 Provide and maintain a method for proper escalation of problems within
Client's manaqement
X
7.2 .13 Assign IT Coordinator for primary contact by Netsmart technology
group as per Netsmart standard escalation procedures
X
7.3 Service Management
7.3 .1 Provide system availability reporting X
7.3 .2 Create incident reports for outages X
7.3 .3 Maintain inventory of installed products X
7.3 .4 Provide statistics and management reports to Client on a regular basis
as detailed in the procedures manual
X
7.3 .5 Provide Client with detailed reporting and statistics on reported
problems
X
Addendum Schedule I(b)
Contractor Professional Services, Third Party Products, and Annual Charges
All charges and Payment Terms are governed under “Schedule A - Charges and Payment Terms
for Committed Funds” of the Agreement.
Addendum Schedule I(c)
SERVICE LEVEL AGREEMENT
For
Hosting Account Services
1. Coverage Definitions
This Hosting Availability Service Level Agreement (SLA) applies to you (“County”) if you have contracted
for any of the following web-based services from Contractor: Avatar, TIER, Insight, or Cache hosting, e-mail
hosting, or web hosting.
This Section sets forth the System Availability commitments for Hosting Services. If monthly System
Availability (as defined below) falls below 99.0%, Contractor will provide a credit against the County’s next
monthly Hosting Fees to account for the downtime. The appropriate credit percentage (%) will be determined
based on the following table.
System Uptime % Credit %
>= 98.0% and < 98.9% 5%
97.0 to 97.9% 10%
95.0 to 96.9% 15%
< 94.9 or below 25%
2. System Availability Calculation
a) Contractor will calculate System Availability as set forth below for each month during the Term of this
Contractor Contract Addendum.
b) System Availability will be calculated as follows (and will be rounded to up to the next one tenth of a
percentage point):
System Availability = [ (Base Time – Unscheduled Downtime) / (Base Time) ] x 100
“Base Time” equals the product of the number of days in the applicable month times 24 hours times 60
minutes.
“Unscheduled Downtime” equals the time (in minutes) during which the Production System is not
operational (excluding “Scheduled Downtime”) from Contractor’s Hosting facility internet connection
based on the measuring methodology documented below.
“Scheduled Downtime” equals the aggregate total of all minutes of planned and scheduled maintenance
performed during the month to perform any necessary hardware, operating system, network, database,
application software maintenance, repair, upgrades, and updates. Contractor will work with County to
determine and use commercially reasonable efforts to Schedule Downtime after regular business hours,
during times that minimize the disruption to operations. The amount of scheduled downtime may vary
from month to month depending on the level of change to the system such as the project implementation
phase, adding new products, upgrading products, etc.
c) County is permitted to audit the Unscheduled Downtime based on the methodology established below.
Contractor agrees to cooperate with County in connection with any audit of the Unscheduled Downtime.
This audit must take place within 30 days of the month end.
d) Contractor recommends that County implement, on a timely basis, the Service Packages that will be
provided to County by Contractor on a periodic basis. Contractor will advise County on Service Packages
that may enhance performance and availability and will advise County of the advantages of implementing
the Service Packages as well as the implication of electing not to implement the Service Packages.
Contractor will perform the technical requirements needed for County to use the Service Packages that
County elects to implement, at no additional charge and as part of the Hosting Fees. County and
Contractor will work together to establish a mutually agreeable implementation schedule for the Service
Packages. Upon notice to County that the System’s performance and availability will be adversely
affected if County elects not to implement a Service Package, County will waive any credits set forth
above, until such time as County performs its obligations as necessary to implement the required Service
Packages.
e) County must allow Contractor to implement the latest Contractor supported layered software version (i.e.
OS, DBMS, etc.) and patches within six (6) months of the general support announcement from Contractor.
Contractor will advise County regarding the layered software enhancements as well as the implications of
electing not to implement the layered software enhancements. Contractor will perform the technical
requirements needed for County to use the layered software enhancements that County elects to implement
as part of the Hosting Service fees. County and Contractor will work together to establish an
implementation schedule for the layered software enhancements. If Contractor provides notice to County
that the System’s performance and availability will be adversely affected if County elects not to implement
the layered software enhancements, County waives its right to any credits set forth above until County
implements the required layered software enhancements.
f) If County is operating beyond the Scope of Use limits, County waives its right to any credits set forth
above until County is in compliance with Scope of Use.
g) The System will be considered in a System Stabilization Period during the seventy-two (72) hour window
following the First Productive Use and following a Major System Change. During a System Stabilization
Period, changes to the System may be required to achieve optimal performance and Unscheduled
Downtime or Scheduled Downtime minutes do not apply.
3. Exceptions
County shall not receive any credits under this SLA in connection with any failure or deficiency of Hosting
Availability caused or associated with:
a. Circumstances beyond Contractor’s reasonable control, including, without limitation, acts of
any governmental body, war, insurrection, sabotage, armed conflict, embargo, fire, flood,
strike or other labor disturbance, interruption of or delay in transportation, unavailability of or
interruption or delay in telecommunications or third party services, virus attacks or hackers,
failure of third party software (including, without limitation, web server software, FTP
Servers, or statistics) or inability to obtain supplies, or power used in or equipment needed for
provision of services;
b. Failure of access circuits to the Contractor Network, unless such failure is caused solely by
Contractor;
c. Scheduled maintenance, scheduled backups, scheduled restores and emergency maintenance
and upgrades;
d. Issues with FTP, POP, or SMTP County access;
e. County's acts or omissions (or acts or omissions of others engaged or authorized by County),
including, without limitation, custom scripting or coding (e.g., CGI, Perl, Java, HTML, ASP,
etc), any negligence, willful misconduct, or misuse of the Services;
f. E-mail or webmail delivery and transmission;
g. Outages elsewhere on the Internet that hinder access to your account. Contractor is not
responsible for browser or DNS caching that may make your site appear inaccessible when
others can still access it. Contractor will guarantee only those areas considered under the
control of Contractor: Contractor server links to the Internet, Contractor’s routers, and
Contractor’s servers.
h. Use of a VPN or similar connection which is not exclusively within Contractor’s control at
both ends of such connection, and where the problem occurs in the part of the VPN which is
not under Contractor’s control.
4. Scheduled Maintenance
Contractor reserves the right to establish a monthly maintenance window for the purpose of upgrading,
patching, modifying, and repairing portions or the entire ASP/Hosting environment. The monthly window
is generally scheduled on the 3rd Sunday of the month, from 2:00AM – 5:30AM EST.
5. Credit Request and Payment Procedures
In order to receive a credit, County must submit a request for credit to Contractor Technologies, Inc.
Accounting at AR@ntst.com, within ten (10) business days after the incident supporting the request. Each
request must include County's account number (per Contractor’s invoice) and the dates and times of the
unavailability of the services. If the unavailability is confirmed by Contractor as an incident eligible for
credit, credits will be applied within two billing cycles after Contractor’s receipt of County's request.
Credits are not refundable and can be used only towards future billing charges.
Notwithstanding anything to the contrary herein, the total amount credited to County in a particular month
under this SLA cannot exceed the total hosting fee paid by County for the month in which Services were
impacted. Credits are exclusive of any applicable taxes charged to County or collected by Contractor and
are County's sole and exclusive remedy with respect to any failure or deficiency in level of services
described in this SLA if County applied for and received a credit. Nothing in this SLA precludes County
from pursuing an alternate contract remedy for any future incident that may occur.
Schedule J
Netsmart Subscription Products Addendum
1. Introduction. This Addendum is a supplement to the terms of the License and Services Agreement dated
July 1, 2017 (“Effective Date”) by and between Netsmart Technologies, Inc. (“Contractor”), and the
County of Fresno, a political subdivision of the State of California, hereinafter referred to as (“County”),
which will be referred to in this Addendum as the “Agreement”. The terms and conditions of this
Addendum will apply to Subscription Products and Services identified in Section 2 by check mark. All
references to Schedules in this Addendum refer to the Schedules of this Addendum.
2. Subscription Products and Services Descriptions. Subscription Products and Services will include all
generic versions, corrections, enhancements and improvements developed by Contractor during the Term
of this Addendum:
OrderConnect Not Included
The OrderConnect suite is an e-Prescribing and medication management product. The full version of this
product has the ability to exchange web-based pharmaceutical information, prescriptions, medication
orders, disease specific information, laboratory orders, and radiology/imaging and results with defined
allied healthcare partners.
CareConnect Not Included
A software service that enables clinical data to be shared between providers and other entities such as
RHIOs Regional Health Information Organizations (“RHIOs”), Health Information Exchanges (“HIEs”),
State agencies for public health organizations for immunizations, reportable labs and syndromic
surveillance data in support of national standards related to continuity of care, and Contractor County to
County referrals to support transitions of care with direct messaging capabilities.
Care Guidance/Clinical Quality Metrics Not Included
Contractor’s Clinical Decision Support and Quality Measures ensure County’s utilizing a Netsmart
CareRecord have the means necessary to meet all Meaningful Use stage 2 requirements for metric
reporting and care guidance functionality. The Care Guidance rules are based upon national quality
forums clinical quality measures, thus assuring clinician awareness and organizational improvement
towards meeting quality outcomes measures. As data is aggregated on the Clinical Quality Metrics
(“CQM”) Contractor will benchmark your organization’s performance on all required CQM.
myHealthPointe Portal Not Included
A Consumer web portal that enables Care Providers to proactively involve Consumers in their care. Using
the portal, Consumers can schedule appointments, view current medications, and communicate with their
Care Providers.
ProviderConnect Not Included
A software product that supports data exchange between the Contractor host system and outside
providers of care.
E
3. Supplemental Definitions
Any capitalized term not defined below but used in this Addendum will have the meaning given to that
term in the Agreement.
“Agent” means any person who is authorized under applicable law and regulations to transmit or relay
prescription authorization information between a Prescriber and a pharmacy. An Agent is typically a nurse
who is authorized by a physician to communicate with a pharmacy or laboratory on behalf of a Prescriber.
“Anniversary Date” means the annual calendar anniversary of the Effective Date.
“Care Provider” means an organization that provides medical or health services and any other person or
organization that furnishes, bills, or is paid for health care in the normal course of business including a
hospital, critical access hospital, skilled nursing facility, or comprehensive outpatient rehabilitation facility.
“Charges” means the amounts to be paid by County for the right to use the Subscription Products and
Services and for hardware or other Third Party Products acquired by County under the terms of this
Addendum. The Charges and payment schedule are set forth in “Schedule A – Charges and Payment
Terms” of the Agreement and referenced again in Schedule 3(a) of this addendum.
“Consumer” means an individual who is receiving services from a Care Provider, and who has the right to
access specific portions of their electronic health record and the ability to exchange messages with their
Care Provider through a Subscription Services Product.
“Drug Information Data” or “DID” means context-relevant drug database products licensed from one of the
following publishers: Cerner Multum, Inc. (“VantageRx”), First DataBank Evaluations of Drug Interactions
(“EDI”) or Thompson Reuters, Inc. (“UltiMedex”) that provides drug and allergy interaction and dosage
information (collectively, “DID Publishers”).
“Non-Prescribing User” means any person who is granted limited access to OrderConnect for the purpose
of editing information that is not required to be entered or modified by a Prescriber or Agent under
applicable law and regulations. A Non-Prescribing User typically generates reports without modification of
the information in the reports, and can update basic demographic information,
“Patient Data” or “Consumer Data” means names, addresses, social security numbers, medical records and
any other information concerning or relating to Consumers which is deemed to be protected health
information under the rules and regulations of the Health Insurance Portability
and Accountability Act of 1996 (“HIPAA”). Deidentified Data (as such term is defined by HIPAA) shall
not be considered to be Patient Data.
“Prescriber” means any person who possesses a DEA number and who is authorized by law to write
prescriptions.
“Service Level Agreement” means the minimum performance criteria that Contractor will meet while
delivering the Subscription Service and the remedial action if performance falls below the target criteria as
provided in Schedule 3(b).
“User” means an individual or entity, other than a Consumer, that has been granted access with a user ID
and password to a Subscription Product or Service by the County.
4. License Terms and Conditions
A. The Subscription Products and Services are specifically included within the grant of license and term of
license as “Licensed Programs” under the Agreement.
B. County grants to Contractor a non-exclusive, non-transferable license (the “Usage License”) to use all
Patient Data for the sole purpose of operating the Subscription Products and Services for the benefit of
County and its clients and for maintaining the Subscription Products and Services (for example, creating
backups of the Patient Data or moving it between servers) so long as Contractor has a bona fide need to do
so subject to and for the sole purpose required by this Addendum and the Agreement. The Usage License
does not confer on Contractor any right to share Patient Data with third parties other than Contractor
employees or consultants who are bound by agreements that contain confidentiality provisions equivalent
to those contained in the Agreement. The foregoing restriction on Contractor’s use of Patient Data does
not prohibit Contractor from making use of Deidentified Data as described and permitted under HIPAA,
but any use of Deidentified Data requires County’s prior written approval.
5. Term and Termination
A. Contractor will make the Subscription Products and Services available and Charges will apply in
accordance with Sections 6 and 15, and Schedule A of the Agreement.
B. In the event that County discontinues using the Subscription Products and Services for any reason, County
shall be entitled to the return of all data entered into the Subscription Product. In the event Contractor
ceases doing business, County shall also be entitled to the return of all data entered into the Subscription
Product. In the event data is returned to County, it will be provided in comma delimited file format or
another format mutually agreed to by both parties.
C. Either party may terminate this Addendum in the event the other is in material breach of the terms of this
Addendum, or as permitted under the Agreement.
6. Charges and Payment Terms
County shall pay Contractor for the Subscription Products and Services as provided in Schedule A to this
Agreement.
7. County Obligations
In addition to the obligations under the Agreement County agrees:
A. That it has no ownership rights in data or information in the DID services or content.
B. To restrict use of Drug Information Data to licensed healthcare professional directly connected with the
County, either as an employee or an authorized affiliate. Such use shall be made only under the
supervision of, and reliance upon, the clinical discretion and judgment of a licensed physician. As between
the County and the publisher of the Drug Information Data, County assumes full responsibility for
ensuring the appropriateness of using and relying upon the information supplied by the Drug Information
Data publisher, in view of all attendant circumstances, indications and contraindications. Except as
provided above, it will not otherwise make the DID content available to any person, or entity including the
government, whether affiliated or not, except as required by subpoena or other legal process and after
notice to the owner of the content.
C. To maintain accurate and up to date Patient Data in all systems covered by the Agreement.
D. To provide support to its Users and Consumers related to their use of the Subscription Products and
Services.
E. To notify Contractor in the event County becomes aware of or suspects misuse, unauthorized access, data
corruption or any other threat to the security of the Subscription Products system and related data or if
County receives a subpoena or other legal process requiring disclosure of Contractor confidential
information or DID content.
F. For myHealthPointe Portal, to adhere to the terms and conditions or at a minimum, terms that are the same
as or equivalent to the terms stated in Schedule 3(c).
8. Contractor Obligations
In addition to the obligations of the Agreement, Contractor will be responsible for:
A. Establishing SSL connectivity between the Consumer’s computing device and the Care Provider’s
firewall;
B. Meeting the service levels as stated in Schedule 3(b);
C. Keeping Patient Data confidential in accordance with the terms of the Agreement.
9. Limitation on Cumulative Liability
EXCEPT FOR THE PARTIES’ RESPECTIVE EXPRESS INDEMNITY OBLIGATIONS IN THE
AGREEMENT (INCLUDING IN SECTION 9 (INDEMNIFICATION)), IN SCHEDULE H AND
SCHEDULE I, THE CUMULATIVE LIABILITY OF CONTRACTOR TO COUNTY FOR ANY ACTUAL
OR ALLEGED DAMAGES ARISING OUT OF, BASED ON OR RELATING TO THE SUBSCRIPTION
PRODUCTS AND SERVICES COVERED BY THIS ADDENDUM, WHETHER BASED UPON BREACH
OF CONTRACT, TORT (INCLUDING NEGLIGENCE), WARRANTY OR ANY OTHER LEGAL
THEORY, WILL NOT EXCEED THE AMOUNT OF THE CHARGES PAID TO CONTRACTOR UNDER
SCHEDULE A FOR THE PRIOR TWELVE (12) MONTHS.
10. List of Schedules
Schedule 3(a) Charges and Payment Terms
Schedule 3(b) Service Level Agreement
Schedule 3(c) Supplier pass-through terms for myHealthPointe Portal
NTST Avatar Plexus License Agreement Page 55 of 61
September 2014 v1 Signed
Addendum Schedule J(a)
Netsmart Subscription Charges and Payment Terms
All Charges and Payment Terms are governed under “Charges and Payment
Terms for Committed Funds” of the Agreement.
Schedule J(b)
Service Level Agreement
1. Coverage and Definitions
This Service Level Agreement (SLA) applies to you (“County” or “County”) if you have contracted for any of
the Subscription Products and Services identified in Section II of this Addendum.
This Section sets forth the System Availability commitments for this Addendum. If monthly System
Availability (as defined below) falls below 99.0%, Contractor will provide a credit against the County’s next
monthly Fees (under this Addendum) to account for the downtime. The appropriate credit percentage (%) will
be determined based on the following table.
System Uptime % Credit %
>= 98.0% and < 99.0% 5%
97.0 to 97.9% 10%
95.0 to 96.9% 15%
< 94.9 or below 25%
2. System Availability Calculation
a) Contractor will calculate System Availability as set forth below for each month during the Term of this
Contractor Agreement.
b) System Availability will be calculated as follows (and will be rounded to up to the next one tenth of a
percentage point):
System Availability = [ (Base Time – Unscheduled Downtime) / (Base Time) ] x 100
“Base Time” equals the product of the number of days in the applicable month times 24 hours times 60
minutes.
“Unscheduled Downtime” equals the time (in minutes) during which the Production System is not operational
(excluding “Scheduled Downtime”) from Contractor’s Hosting facility internet connection based on the
measuring methodology documented below.
“Scheduled Downtime” equals the aggregate total of all minutes of planned and scheduled maintenance
performed during the month to perform any necessary hardware, operating system, network, database,
application software maintenance, repair, upgrades, and updates. Contractor will work with County to
determine and use commercially reasonable efforts to Schedule Downtime after regular business hours, during
times that minimize the disruption to operations. The amount of scheduled downtime may vary from month to
month depending on the level of change to the system such as the project implementation phase, adding new
products, upgrading products, etc.
c) County is permitted to audit the Unscheduled Downtime based on the methodology established below.
Contractor agrees to cooperate with County in connection with any audit of the Unscheduled Downtime.
This audit must take place within 30 days of the month end.
d) Contractor recommends that County implement, on a timely basis, the Service Packages that will be
provided to County by Contractor on a periodic basis. Contractor will advise County on Service Packages
that may enhance performance and availability and will advise County of the advantages of implementing
the Service Packages as well as the implication of electing not to implement the Service Packages.
Contractor will perform the technical requirements needed for County to use the Service Packages that
County elects to implement, at no additional charge and as part of the fees under this Addendum. County
and Contractor will work together to establish a mutually agreeable implementation schedule for the
Service Packages. Upon notice to County that the System’s performance and availability will be adversely
affected if County elects not to implement a Service Package, County will waive any credits set forth
above, until such time as County performs its obligations as necessary to implement the required Service
Packages.
e) County must allow Contractor to implement the latest Contractor supported layered software version (i.e.
OS, DBMS, etc.) and patches within six (6) months of the general support announcement from Contractor.
Contractor will advise County regarding the layered software enhancements as well as the implications of
electing not to implement the layered software enhancements. Contractor will perform the technical
requirements needed for County to use the layered software enhancements that County elects to implement
as part of the fees under this Addendum. County and Contractor will work together to establish an
implementation schedule for the layered software enhancements. If Contractor provides notice to County
that the System’s performance and availability will be adversely affected if County elects not to implement
the layered software enhancements, County waives its right to any credits set forth above until County
implements the required layered software enhancements.
f) If County is operating beyond the Scope of Use limits, County waives its right to any credits set forth
above until County is in compliance with Scope of Use.
g) The System will be considered in a System Stabilization Period during the seventy-two (72) hour window
following the First Productive Use and following a Major System Change. During a System Stabilization
Period, changes to the System may be required to achieve optimal performance and Unscheduled
Downtime or Scheduled Downtime minutes do not apply.
3. Exceptions
County shall not receive any credits under this SLA in connection with any failure or deficiency of
Hosting Availability caused or associated with:
a. Circumstances beyond Contractor’s reasonable control, including, without limitation, acts of any
governmental body, war, insurrection, sabotage, armed conflict, embargo, fire, flood, strike or other labor
disturbance, interruption of or delay in transportation, unavailability of or interruption or delay in
telecommunications or third party services, virus attacks or hackers, failure of third party software
(including, without limitation, web server software, FTP Servers, or statistics) or inability to obtain
supplies, or power used in or equipment needed for provision of services;
b. Failure of access circuits to the Contractor Network, unless such failure is caused solely by Contractor;
c. Scheduled maintenance, scheduled backups, scheduled restores and emergency maintenance and upgrades;
d. Issues with FTP, POP, or SMTP County access;
e. County's acts or omissions (or acts or omissions of others engaged or authorized by County), including,
without limitation, custom scripting or coding (e.g., CGI, Perl, Java, HTML, ASP, etc), any negligence,
willful misconduct, or misuse of the Services;
f. E-mail or webmail delivery and transmission;
g. Outages elsewhere on the Internet that hinder access to your account. Contractor is not responsible for
browser or DNS caching that may make your site appear inaccessible when others can still access it.
Contractor will guarantee only those areas considered under the control of Contractor: Contractor server
links to the Internet, Contractor’s routers, and Contractor’s servers.
h. Use of a VPN or similar connection which is not exclusively within Contractor’s control at both ends of
such connection, and where the problem occurs in the part of the VPN which is not under Contractor’s
control.
4. Scheduled Maintenance
Contractor reserves the right to establish a monthly maintenance window for the purpose of upgrading,
patching, modifying, and repairing portions or the entire ASP/Hosting environment. The monthly window is
generally scheduled on the 3rd Sunday of the month, from 2:00AM – 5:00AM EST.
5. Credit Request and Payment Procedures
In order to receive a credit, County must submit a request for credit to Contractor Accounting
at: AR@ntst.com, within ten (10) business days after the incident supporting the request. Each request must
include County's account number (per Contractor’s invoice) and the dates and times of the unavailability of the
services. If the unavailability is confirmed by Contractor as an incident eligible for credit, credits will be
applied within two billing cycles after Contractor’s receipt of County's request. Credits are not refundable and
can be used only towards future billing charges.
Notwithstanding anything to the contrary herein, the total amount credited to County in a particular month
under this SLA cannot exceed the total hosting fee paid by County for the month in which Services were
impacted. Credits are exclusive of any applicable taxes charged to County or collected by Contractor and are
County's sole and exclusive remedy with respect to any failure or deficiency in level of services described in
this SLA if County applied for and received a credit. Nothing in this SLA precludes County from pursuing an
alternate contract remedy for any future incident that may occur.
Schedule J(c) - myHealthPointe Portal Supplier Terms and Conditions
This Schedule states the terms and conditions of the Supplier (the “Terms”) that shall further govern the access
and use of the myHealthPointe Portal (“Portal”) made available by Netsmart Technologies Inc. Capitalized
terms not otherwise defined in this Schedule shall have the same meaning as in the Agreement (as defined
below).
ARTICLE I – DEFINITIONS
“Documentation” means those materials provided to County that describe the function and use of the Portal,
including without limitation the online user guide for the Portal, as updated from time to time.
“InteliChart” or “Supplier” means InteliChart, LLC, a North Carolina limited liability company.
“Agreement” means the Agreement between Contractor and County, including all schedules, exhibits, and
addenda thereto, pursuant to which County is purchasing subscriptions to access and use the Portal and to
which this Schedule 3(c) is attached.
“Order Form” means a Contractor order form submitted by County in order to (i) purchase additional User
subscriptions to the Portal, and/or (iii) purchase Services from Contractor. Each Order Form shall be in a form
acceptable to Contractor and shall not be deemed effective unless accepted in writing by Contractor in its sole
discretion. The terms of each such Order Form are hereby incorporated by reference.
ARTICLE II - SUBSCRIPTION AND SERVICES
(a) Subscription Purchases. During the Initial Term of the Agreement Contractor shall make the Portal
available to the County pursuant to, and in accordance with, the Terms, the Agreement and each of the
applicable exhibits, schedule(s) and/or Order Forms thereto. County agrees that its subscriptions hereunder are
neither contingent on the delivery of any future functionality or features in the Portal nor dependent on any
oral or written public comments made by Contractor regarding future functionality or features in the Portal.
For avoidance of doubt, County acknowledges and agrees that its right to access and use the Portal is
subscription-based and is not being provided pursuant any perpetual license grant included within the
Agreement; provided, however, that the restrictions and limitations imposed on the Licensed Programs
included in the Agreement shall apply to your access and use of the Portal.
(b) User Subscriptions. Unless otherwise specified in an applicable Order Form, (i) the Portal shall be
purchased as User subscriptions and may be accessed by no more than the number of Users purchased by
County from Contractor, (ii) additional User subscriptions for the Portal may be purchased during the term of
the Agreement by submitting an Order Form, and (iii) the additional User subscriptions for the Portal shall
terminate on the same dates as the then-existing subscriptions for the Portal. User subscriptions are for
designated Users and cannot be shared or used by more than one User but may be reassigned to new Users
replacing former Users who no longer require ongoing use of the Portal.
(c) Reservation of Rights. Subject to the limited rights expressly granted hereunder, Contractor reserve
all rights, title and interest in and to the Portal, including all related intellectual property rights. No rights are
granted to County hereunder other than as expressly set forth herein.
(d) County Responsibilities. County shall (i) be responsible for its User’s compliance with the
Agreement, (ii) be solely responsible for the accuracy, quality, integrity and legality of the Patient Data and of
the means by which County acquired the Patient Data, (iii) use commercially reasonable efforts to prevent
unauthorized access to or use of the Portal, and notify Contractor promptly of any such unauthorized access or
use, (iv) use the Portal only in accordance with the Documentation and all applicable federal and state laws and
regulations, (v) not make the Portal available to anyone other than its Users, its administrative personnel and
County’s patients, provided that in each such instance that County shall ensure that such individual (A) shall
use the Portal only in accordance with the Documentation and all applicable federal and state laws and
regulations and (B) shall not access and/or use the Portal in order to build a competitive product or service,
copy any features, functions or graphics of the Portal, or monitor the availability and/or functionality of the
Portal for any benchmarking or competitive purposes, (vi) not sell, resell, rent or lease the Portal, (vii) not
modify, alter, revise, decompile, disassemble, reverse engineer, create derivative works or attempt to derive the
source code of the Portal, (viii) not use the Portal to store or transmit infringing, libelous, or otherwise
unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (ix) not
store or transmit any material containing software viruses, worms, time bombs, Trojan horses or other harmful
or malicious code, files, scripts, agents or programs, (x) not interfere with or disrupt the integrity or
performance of the Portal, (xi) not attempt to gain unauthorized access to the Portal or their related systems or
networks, or (xii) not access the Portal in order to build a competitive product or service, copy any features,
functions or graphics of the Portal or monitor the availability and/or functionality of the Portal for any
benchmarking or competitive purposes.
Article III - WARRANTIES AND INDEMNIFICATION
(a) The Portal. Contractor represents that the Portal will substantially conform in all material respects
with the requirements of this Agreement and their Specifications. If a Problem or Defect occurs while
County is receiving Support Services, Contractor will correct the Problem or Defect in accordance
with the Support Services provisions set forth in Schedule E.
(b) Infringement. Contractor further represents and warrants that it has the right to grant the licenses
granted to County hereunder and in connection with the Portal and that to the best of Contractor's
knowledge the Portal does not infringe upon or violate the United States patent rights of any third
party and do not infringe upon or violate the copyright, or trade secret right of any third party.
(c) Viruses and Disabling Mechanisms. Contractor shall use commercially reasonable measures to screen
the Portal to avoid introducing any virus or other destructive programming that are designed (1) to
permit unauthorized access or use by third parties to the software installed on County’s systems, or (ii)
to disable or damage County’s systems. Contractor shall not insert into the Portal any code or other
device that would have the effect of disabling or otherwise shutting down all or any portion of the
Portal. Contractor shall not invoke such code or other device at any time, including upon expiration or
termination of this Agreement for any reason.
(d) Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THE AGREEMENT AND IN THIS
SECTION, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER
EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY
DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM
EXTENT PERMITTED BY APPLICABLE LAW.Contractor Breach. County acknowledges and
agrees that should Contractor discontinue its provision of services under this Schedule of the
Agreement, or materially breach its reseller agreement with InteliChart, then County, in its discretion,
may negotiate directly with InteliChart to obtain subscriptions/licenses and/or services previously
provided by or through Contractor.
(e) Indemnity by Contractor Intellectual Property Infringement. In the event of any claim by a third party
against County (the “Claim”), alleging that the use of the Portal infringes upon any intellectual
property rights of such third party, County will promptly notify Contractor and Contractor will defend
County and its officers, agents, and employees against such Claim in County's name but at
Contractor's expense, and will indemnify and hold harmless County against any liability paid by
County, including but not limited to attorneys' fees and disbursements, arising out of such Claim. In
the event such an infringement is found and Contractor cannot either procure the right to continued
use of the Portal, or, within forty-five (45) days of notice of the Claim (unless such period is extended
by County), replace or modify the Portal with a non-infringing program of comparable quality and
functionality, then Contractor shall discontinue its provision of services and refund to County all fees,
including subscriptions or licenses and professional service fees, paid by County, reduced by 1/36th or
each full month from the date of first use of the Portal, until the date of termination.
(f)
(G) LIMITATION OF LIABILITY. COUNTY ACKNOWLEDGES AND AGREES EXCEPT FOR
BREACH OF SECTION 16 (COUNTY CONFIDENTIALITY), SCHEDULE H
(CONFIDENTIALITY OF PATIENT INFORMATION), AND SCHEDULE I (BUSINESS
ASSOCIATE AGREEMENT), INSURED CLAIMS, AND THE PARTIES’ RESPECTIVE
EXPRESS INDEMNITY OBLIGATIONS IN THIS AGREEMENT (INCLUDING IN SECTION 9
(INDEMNIFICATION)), THAT IN NO EVENT SHALL INTELICHART HAVE ANY LIABILITY
TO COUNTY, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT
LIABILITY, PRODUCTS LIABILITY OR OTHERWISE. COUNTY AGREES THAT THE
PORTAL IS A DOCUMENTATION TOOL ONLY, AND THAT THE PORTAL IS NOT
INTENDED TO PROVIDE DIAGNOSES, PRACTICE GUIDELINES, ADVICE, OR PROTOCOLS
FOR DELIVERING MEDICAL CARE. COUNTY FURTHER AGREES THAT NOTHING IN THE
PORTAL OR ANYTHING ELSE PROVIDED PURSUANT TO THE AGREEMENT
CONSTITUTES OR IS INTENDED TO BE MEDICAL ADVICE OR A SUBSTITUTE FOR
MEDICAL KNOWLEDGE OR JUDGMENT. COUNTY FURTHER AGREES IT SHALL BE
SOLELY RESPONSIBLE TO ENSURE THAT THE DOCUMENTATION OF MEDICAL CARE
PROVIDED BY IT, ITS AFFILIATES OR THEIR RESPECTIVE EMPLOYEES, AGENTS, THIRD
PARTY CONTRACTORS, AND SUPPLIERS IS ACCURATE AND THAT ALL BILLING
INFORMATION DELIVERED BY COUNTY TO ANY INSURANCE COMPANY,
GOVERNMENTAL AGENCY, OR OTHER PAYOR SHALL BE ACCURATE AND COMPLETE.
NEITHER NETSMART NOR ITS VENDORS SHALL HAVE ANY RESPONSIBILITY AS A
RESULT OF THE AGREEMENT FOR DECISIONS MADE OR ACTIONS TAKEN OR NOT
TAKEN IN RENDERING MEDICAL CARE OR FOR INFORMATION PROVIDED TO ANY
INSURANCE COMPANY, GOVERNMENTAL AGENCY, OR OTHER PAYOR.
ARTICLE IV - MISCELLANEOUS
(a) Assignment. County shall have no right to transfer, assign or sublicense any of its rights, interests or
obligations with respect to the Portal to any third party and any attempt to do so shall be null and void.(b)
Except as expressly set forth in this Schedule, the relationship between Contractor and County will be
governed by the provisions of the Agreement.
ExhibitKPage1of2DISCLOSUREOFOWNERSHIPANDCONTROLINTERESTSTATEMENTI.IdentifyingInformationNameofentitytjih/^TSMliCh/uoloeiX5\'JA/CD/B/AAddress(number,street)*</950Cdhc-i.O t V DCity0V£;2£jvOTA&ICState,K5ZIPcode.#LL'lllCL1AnumberTelephonenumber^<8oo>V'2i'7S O jII.Answerthefollowingquestionsbychecking“Yes”or“No.”Ifanyofthequestionsareanswered“Yes,”listnamesandaddressesofindividualsorcorporationsunder“Remarks”onpage2.Identifyeachitemnumbertobecontinued.A.Arethereanyindividualsororganizationshavingadirectorindirectownershiporcontrolinterestoffivepercentormoreintheinstitution,organizations,oragencythathavebeenconvictedofacriminaloffenserelatedtotheinvolvementofsuchpersonsororganizationsinanyoftheprogramsestablishedbyTitlesXVIII,XIX,orXX?B.Arethereanydirectors,officers,agents,ormanagingemployeesoftheinstitution,agency,ororganizationwhohaveeverbeenconvictedofacriminaloffenserelatedtotheirinvolvementinsuchprogramsestablishedbyTitlesXVIII,XIX,orXX?C.Arethereanyindividualscurrentlyemployedbytheinstitution,agency,ororganizationinamanagerial,accounting,auditing,orsimilarcapacitywhowereemployedbytheinstitution’s,organization’s,oragency’sfiscalintermediaryorcarrierwithintheprevious12months?(TitleXVIIIprovidersonly)III.A.Listnames,addressesforindividuals,ortheEINfororganizationshavingdirectorindirectownershiporacontrollinginterestintheentity.(Seeinstructionsfordefinitionofownershipandcontrollinginterest.)Listanyadditionalnamesandaddressesunder“Remarks”onpage2.Ifmorethanoneindividualisreportedandanyofthesepersonsarerelatedtoeachother,thismustbereportedunder“Remarks.”NAMEADDRESSEINB.Typeofentity:SoleproprietorshipPartnership^CorporationaUnincorporatedAssociationsOther(specify)C.Ifthedisclosingentityisacorporation,listnames,addressesofthedirectors,andEINsforcorporationsunder“Remarks.”YESNO°XaXD.AreanyownersofthedisclosingentityalsoownersofotherMedicare/Medicaidfacilities?(Example:soleproprietor,partnership,ormembersofBoardofDirectors)Ifyes,listnames,addressesofindividuals,andprovidernumbers)(NAMEADDRESSPROVIDERNUMBER
ExhibitKPage2of2IV.A.Hastherebeenachangeinownershiporcontrolwithinthelastyear?.Ifyes,givedate.B.Doyouanticipateanychangeofownershiporcontrolwithintheyear?..Ifyes,when?C.Doyouanticipatefilingforbankruptcywithintheyear?..Ifyes,when?V.Isthefacilityoperatedbyamanagementcompanyorleasedinwholeorpartbyanotherorganization?...Ifyes,givedateofchangeinoperations.VI.HastherebeenachangeinAdministrator,DirectorofNursing,orMedicalDirectorwithinthelastyear?..VII.A.Isthisfacilitychainaffiliated?(Ifyes,listname,addressofcorporation,andEIN.)EINAddress(number,name)CityYESNOaaB.IftheanswertoquestionVILA,isNO,wasthefacilityeveraffiliatedwithachain?(Ifyes,listname,addressofcorporation,andEIN.)EINAddress(number,name)CityWhoeverknowinglyandwillfullymakesorcausestobemadeafalsestatementorrepresentationofthisstatement,maybeprosecutedunderapplicablefederalorstatelaws.Inaddition,knowinglyandwillfullyfailingtofullyandaccuratelydisclosetheinformationrequestedmayresultindenialofarequesttoparticipateorwheretheentityalreadyparticipates,aterminationofitsagreementopccntractwiththeagency,asappropriate.Nameofauthorizedrepresentative(typed)/JSignature/leiipttMcGovernvicePresidenttv?NtofriartYectwoteflies,Inc./-/?-ionRemarks
Exhibit L
Page 1 of 2
CERTIFICATION REGARDING DEBARMENT, SUSPENSION, AND OTHER
RESPONSIBILITY MATTERS--PRIMARY COVERED TRANSACTIONS
INSTRUCTIONS FOR CERTIFICATION
1. By signing and submitting this proposal, the prospective primary participant is
providing the certification set out below.
2. The inability of a person to provide the certification required below will not
necessarily result in denial of participation in this covered transaction. The prospective
participant shall submit an explanation of why it cannot provide the certification set out
below. The certification or explanation will be considered in connection with the
department or agency's determination whether to enter into this transaction. However,
failure of the prospective primary participant to furnish a certification or an explanation
shall disqualify such person from participation in this transaction.
3. The certification in this clause is a material representation of fact upon which
reliance was placed when the department or agency determined to enter into this
transaction. If it is later determined that the prospective primary participant knowingly
rendered an erroneous certification, in addition to other remedies available to the
Federal Government, the department or agency may terminate this transaction for
cause or default.
4. The prospective primary participant shall provide immediate written notice to
the department or agency to which this proposal is submitted if at any time the
prospective primary participant learns that its certification was erroneous when
submitted or has become erroneous by reason of changed circumstances.
5. The terms covered transaction, debarred, suspended, ineligible, participant,
person, primary covered transaction, principal, proposal, and voluntarily excluded, as
used in this clause, have the meanings set out in the Definitions and Coverage
sections of the rules implementing Executive Order 12549. You may contact the
department or agency to which this proposal is being submitted for assistance in
obtaining a copy of those regulations.
6. Nothing contained in the foregoing shall be construed to require establishment
of a system of records in order to render in good faith the certification required by this
clause. The knowledge and information of a participant is not required to exceed that
which is normally possessed by a prudent person in the ordinary course of business
dealings.
ExhibitLPage2of2CERTIFICATION(1)Theprospectiveprimaryparticipantcertifiestothebestofitsknowledgeandbelief,thatit,itsowners,officers,corporatemanagersandpartners:(a)Arenotpresentlydebarred,suspended,proposedfordebarment,declaredineligible,orvoluntarilyexcludedbyanyFederaldepartmentoragency;(b)Havenotwithinathree-yearperiodprecedingthisproposalbeenconvictedoforhadaciviljudgmentrenderedagainstthemforcommissionoffraudoracriminaloffenseinconnectionwithobtaining,attemptingtoobtain,orperformingapublic(Federal,Stateorlocal)transactionorcontractunderapublictransaction;violationofFederalorStateantitruststatutesorcommissionofembezzlement,theft,forgery,bribery,falsificationordestructionofrecords,makingfalsestatements,orreceivingstolenproperty;(c)(d)Havenotwithinathree-yearperiodprecedingthisapplication/proposalhadoneormorepublictransactions(Federal,Stateorlocal)terminatedforcauseordefault.(2)Wheretheprospectiveprimaryparticipantisunabletocertifytoanyofthestatementsinthiscertification,suchprospectiveparticipantshallattachanexplanationtothisproposal.1V/PCompany)
Exhibit M
Page 1 of 2
SELF-DEALING TRANSACTION DISCLOSURE FORM
In order to conduct business with the County of Fresno (hereinafter referred to as “County”),
members of a contractor’s board of directors (hereinafter referred to as “County Contractor”), must
disclose any self-dealing transactions that they are a party to while providing goods, performing
services, or both for the County. A self-dealing transaction is defined below:
“A self-dealing transaction means a transaction to which the corporation is a party and in which one
or more of its directors has a material financial interest”
The definition above will be utilized for purposes of completing this disclosure form.
INSTRUCTIONS
(1) Enter board member’s name, job title (if applicable), and date this disclosure is being made.
(2) Enter the board member’s company/agency name and address.
(3) Describe in detail the nature of the self-dealing transaction that is being disclosed to the
County. At a minimum, include a description of the following:
a. The name of the agency/company with which the corporation has the transaction; and
b. The nature of the material financial interest in the Corporation’s transaction that the
board member has.
(4) Describe in detail why the self-dealing transaction is appropriate based on applicable
provisions of the Corporations Code.
(5) Form must be signed by the board member that is involved in the self-dealing transaction
described in Sections (3) and (4).
ExhibitMPage2of2(1)CompanyBoardMemberInformation:Name:Date:JobTitle:(2)Company/AgencyNameandAddress:(3)Disclosure(Pleasedescribethenatureoftheself-dealingtransactionyouareapartyto)(4)Explainwhythisself-dealingtransactionisconsistentwiththerequirementsofCorporationsCode5233(a)/L/OAKL.(5)WtfrorizedffignaturiSignature:7Date:/-*/3-^onJosephMcGovernExecutiveVicePresidentNetsmartTechnologies,Inc,