OSCAR EMR Affiliated Product Terms of Use Agreement. Between:

Transcription

1 OSCAR EMR Affiliated Product Terms of Use Agreement Between: Open Source Clinical Application Resource (OSCAR) Electronic Medical Record (EMR) Inc. ( OSCAR EMR (hereinafter referred to as OSCAR EMR ) OF THE FIRST PART (hereinafter referred to as either Approved OSCAR Service Provider or Approved OSP ) and OF THE SECOND PART a Person or group of Persons authorized by and representing all Users with respect to the Approved OSP Service Contract, this OSCAR EMR Affiliated Product Terms of Use Agreement, and all matters pertaining thereto (hereinafter referred to as either or the Client ) OF THE THIRD PART WHEREAS the Client has entered into a Service Contract with an Approved OSCAR Service Provider; AND WHEREAS OSCAR EMR requires the Clients of an Approved OSCAR Service Provider to enter to enter into this Agreement in order for the Client to receive OSCAR as an Affiliated Product with relevant Certifications. The Client agrees to enter into this Agreement and agrees to the pay the applicable Certification Fees related thereto; OSP-F0 OSCAR Terms of Use Agreement Rev 2. 26/0/205 Page

2 NOW THEREFORE, IN CONSIDERATION of the premises and the mutual covenants and agreements hereinafter contained and for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereto covenant and agree as follows: ARTICLE Definitions.0 For the purposes of this Agreement, the following definitions shall apply: Affiliation Agreement means the affiliation agreement between OSCAR EMR and the Approved OSCAR Service Providers; Affiliated Product means the OSCAR system made available under GNU General Public License Version 2+ ( complies with OSCAR EMR s ISO 3485:2003 certified Quality Management System and receives all of the benefits associated therewith. Agreement means this agreement between OSCAR EMR, the Client and the Approved OSP; Approved OSCAR Service Provider(s) or Approved OSP(s) means a service provider who is an Approved OSCAR Service Provider pursuant to an Affiliation Agreement with OSCAR EMR and has entered into a Service Contract with the Client; Audit means examination and verification to ensure processes are being followed and that records are being kept in accordance with the relevant documentation. Certification(s) means any certifications, licenses or other certificates of recognition achieved by OSCAR EMR that are made available to Clients through this Agreement; Certification Authority means an organization that has issued a Certification to OSCAR EMR; Certification Fees means the fees charged, from time to time, by OSCAR EMR to Clients pursuant to the terms of this Agreement for the purpose of sustaining OSCAR EMR s not-for-profit operations and maintaining relevant certifications on behalf of OSCAR Users. Certification Fees shall be received and remitted by the Approved OSCAR Service Provider; Customer Satisfaction Surveys means a survey that is issued to Clients to assess their level of satisfaction with either the product or services they are receiving; ISO 3485:2003 means an ISO standard, published in 2003, that represents the requirements for a comprehensive management system for the design and manufacture of medical devices; OSCAR means open source clinical application resource electronic medical record installed and supported in accordance with the ISO 3485:2003 certified OSCAR EMR Quality Management System; OSP-F0 OSCAR Terms of Use Agreement Rev 2. 26/0/205 Page 2

3 OSCAR Implementation Date means the date upon which the Approved OSP has completed the installation of OSCAR or completed an upgrade to OSCAR from a version prior to 2.0; OSCAR EMR means Open Source Clinical Application Resource (OSCAR) Electronic Medical Record (EMR) Inc., a corporation without share capital incorporated pursuant to the Corporations Act, R.S.O. 990, c.c.38, that is responsible for all OSCAR related work including, but not limited to, development, certification, marketing, relationship management with others; OSCAR EMR Quality Management System means a set of interrelated or interacting elements used by OSCAR EMR to direct and control how quality policies are implemented and quality objectives are achieved in accordance with the ISO 3485:2003 Standards; OSCAR Source Code means all the source code for all modules contained in OSCAR, plus any associated interface definition files, plus the scripts used to control compilation and installation of OSCAR.; Most Responsible Provider or MRP means the provider with whom the recipient of health services in a given context has a defined relationship regardless of who they actually receive care from within the circle of care associated with that MRP (e.g. in primary care, the MRP would be the physician to whom patients are rostered or have a fee for service arrangement; in ambulatory care, the MRP would be the specialist; in a chiropractic clinic, the MRP would the chiropractor; in a community health centre, an MRP may be both physicians and nurse practitioners; and where services are structured around programs such as Public Health or other community based programs, MRP will be the professional lead(s) of the program, and in a context not captured by these examples, the MRP will be defined by OSCAR EMR, it being understood such definition will be informed by the Approved OSP); Party and/or Parties means the parties to this Agreement namely the Client, the Approved OSP and OSCAR EMR; Person means an individual, corporation, a partnership, a trust, an unincorporated organization, the government of a country or any political subdivision thereof or any agency, ministry or department of any such government and the executors, administrators or other legal representatives of an individual in such capacity; Service Contract means the service contract between the Approved OSCAR Service Provider and the Client; and User means an individual represented by the Client having a login and password authorizing his/her use of OSCAR contracted for by the Client. OSP-F0 OSCAR Terms of Use Agreement Rev 2. 26/0/205 Page 3

4 ARTICLE 2 Certification Fees 2.0 Subject to Section 2.02, the Client shall pay to OSCAR EMR the Certification Fee(s), as set out below for the purpose of sustaining OSCAR EMR s not-for-profit operations and maintaining relevant certifications on behalf of OSCAR Users. Certification Fees shall be charged monthly and remitted to OSCAR EMR by the Approved OSCAR Service Provider on behalf of the Client or, if preferred by the Client, paid to OSCAR EMR directly by the Client. Certification Category Maintenance of ISO 3485:2003 Certification and Operation of the Quality Management System Compliance with Ontario EMR Specifications for Funding Eligibility Maintenance of Canada Health Infoway J-Class (Laboratory and Clinical Documents) Certification Certification Fee (Check all applicable) $25/MRP/Month Required for all Physicians receiving OSCAR as a Funding Eligible EMR in Ontario Voluntary for all other MRPs $0/Funded Physician/Month Required for all Physicians receiving OSCAR as a Funding Eligible EMR in Ontario $0/MRP/Month Voluntary for all MRPs Note: This Fee is included in Physicians contribution to Compliance with Ontario EMR Specifications for Funding Eligibility. Start Date OSCAR Implementation Date OSCAR Implementation Date OSCAR Implementation Date Total Monthly Payable: Included in Service Contract Pricing Charged in addition to Service Contract Pricing End Date Effective as long as a Service Contract is in place Effective as long as a Physician is receiving EMR Funding from OntarioMD Effective as long as a Service Contract is in place Monthly Fee(s) Payable # MRP: x $25 Total: # Funded Physicians: x $0 Total: # MRP: x $0 Total: 2.02 Where the OSCAR Implementation Date has occurred prior to execution of this Agreement and a Client has been receiving funding from OntarioMD in respect of the Ontario EMR Specification 4. Funding Eligible Offering from OSCAR EMR, then the Client shall be required to pay a lump sum upon signing this Agreement equal to the applicable Certification Fees payable pertaining to the period commencing on the OSCAR Implementation Date or October, 202, whichever is the later and ending on the effective date of this Agreement. Certification Fees payable by lump sum payment shall be made to OSCAR EMR either directly or through the Client s Approved OSP and shall accompany this Agreement when submitted to OSCAR EMR for final execution. Thereafter all Certification Fees shall be payable pursuant to the provisions contained in Section 2. herein In addition to the Certification Fees, the Client shall be responsible for any applicable taxes that may be charged by any governmental authority from time to time related to the payment of the Certification Fees, and shall be due and payable by the Client upon payment of the Certification Fees. OSP-F0 OSCAR Terms of Use Agreement Rev 2. 26/0/205 Page 4

5 ARTICLE 3 Customer Complaint Mechanism 3.0 If the Client has a complaint about the services being provided by their Approved OSP these complaints may be submitted to OSCAR EMR by , or phone. All complaints will be documented and addressed in a timely manner. Contact information for OSCAR EMR can be found at the URL designated by OSCAR EMR from time to time The Client acknowledges that OSCAR EMR will not take financial responsibility for the support and services offered by their Approved OSP. The purpose of the customer complaint mechanism is to inform OSCAR EMR of any concerns about either the product or the services so that OSCAR EMR can take the necessary action to prevent further problems of a similar nature, and to help inform the Client of options and potential solutions to rectify the issues identified. ARTICLE 4 Audits 4.0 From time to time and in no event more than once per year, OSCAR EMR or a Certification Authority may perform an Audit upon prior written notice (see Appendix A for Audit Requirements). The Audit shall be conducted with as little disruption to the Client as is reasonably possible. ARTICLE 5 Client Information and Customer Satisfaction Surveys 5.0 The following Client information is required to be shared with OSCAR EMR and will be provided by the Client s Approved OSP: (a) Group name of practice (ie McMaster Family Health Organization); (b) Name(s) of MRP(s); (c) Clinic address; (d) Primary contact for the Client; (e) Phone number for the primary contact; (f) address for the primary contact; and (g) Version Number of OSCAR EMR in use by the Client. Any information shared with OSCAR EMR shall be kept confidential. Information provided to OSCAR EMR shall be used for the sole purpose of record keeping and to administer Customer Satisfaction Surveys. Customer Satisfaction Surveys shall be administered annually to all Clients. OSP-F0 OSCAR Terms of Use Agreement Rev 2. 26/0/205 Page 5

6 ARTICLE 6 Disclaimer of Warranty 6.0 THE CLIENT ACKNOWLEDGES THAT THE OSCAR SOURCE CODE IS MADE AVAILABLE UNDER THE GNU GENERAL PUBLIC LICENSE V.2.0 AS PUBLISHED UNDER THE FREE SOFTWARE FOUNDATION AND IS SUBJECT TO THE TERMS OF SUCH LICENSE INCLUDING THE NO WARRANTY PROVISIONS CONTAINED THEREIN. NOTWITHSTANDING THE CONSIDERATION AND PAYMENT OBLIGATIONS CONTAINED IN ARTICLE 2 OF THIS AGREEMENT, THE CLIENT ACKNOWLEDGES AND AGREES THAT THE OSCAR SOURCE CODE CONTINUES TO BE PROVIDED ON AN AS IS BASIS WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE CLIENT ACKNOWLEDGES THAT NEITHER MCMASTER UNIVERSITY NOR OSCAR EMR SHALL BE RESPONSIBLE FOR ANY DAMAGES WHATSOEVER RELATED TO THE QUALITY AND PERFORMANCE OF THE OSCAR SOURCE CODE IN ANY ENVIRONMENT. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT. ANY USE OF THE OSCAR SOURCE CODE WITH RESPECT TO OSCAR EMR SHALL ALWAYS BE SUBJECT TO THIS DISCLAIMER OF WARRANTY. Limitation of Liability 6.02 NEITHER OSCAR EMR NOR MCMASTER UNIVERSITY SHALL BE LIABLE UNDER THIS AGREEMENT OR OTHERWISE FOR ANY DIRECT DAMAGES OR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST OR CORRUPTED DATA, LOST PROFITS, LOST BUSINESS OR LOST OPPORTUNITY), OR ANY OTHER SIMILAR DAMAGES UNDER ANY THEORY OF LIABILITY WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR ANY OTHER THEORY WHICH THE CLIENT MAY SUFFER RELATED TO OSCAR OR THIS AGREEMENT. THE CLIENT ASSUMES ALL RESPONSIBILITY FOR THE SELECTION OF OSCAR AND THE APPROVED OSP ASSUMES ALL RESPONSIBILITY FOR THE DOCUMENTATION NECESSARY TO ACHIEVE THE CLIENT S INTENDED RESULTS. THIS LIMITATION ON LIABILITY WAS AND IS AN EXPRESS PART OF THE BARGAIN BETWEEN OSCAR EMR AND THE CLIENT AND WAS A CONTROLLING FACTOR IN THE SETTING OF THE CERTIFICATION FEES IN THIS AGREEMENT THE CLIENT HEREBY IRREVOCABLY AND UNCONDITIONALLY REMISES, RELEASES, AND FOREVER DISCHARGES MCMASTER UNIVERSITY, OSCAR EMR, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, SERVANTS, AGENTS, SUCCESSORS, ASSIGNS AND OTHER LEGAL REPRESENTATIVES (THE RELEASEES ) FROM ANY AND ALL MANNER OF ACTIONS, OSP-F0 OSCAR Terms of Use Agreement Rev 2. 26/0/205 Page 6

7 CAUSES OF ACTION, SUITS, DEBTS, DUTIES, ACCOUNTS, BONDS, COVENANTS, WARRANTIES, CONTRACTS, CLAIMS AND DEMANDS WHATSOEVER WHICH IT HAD, NOW HAS, OR MAY HEREAFTER HAVE AGAINST THE RELEASEES IN CONNECTION WITH THE AGREEMENT AND ITS OBLIGATIONS PRESCRIBED HEREIN. EXCEPT AS SET OUT SECTION 6.04, THE CLIENT FURTHER COVENANTS AND AGREES NOT TO MAKE ANY CLAIM OR TO COMMENCE OR MAINTAIN ANY ACTION OR PROCEEDING IN CONNECTION WITH ANY CLAIMS RELEASED HEREIN AGAINST ANY PERSON OR CORPORATION WHO MIGHT CLAIM CONTRIBUTION OR INDEMNITY OR OTHERWISE AGAINST THE RELEASEES UNDER THE PROVISIONS OF ANY STATUTE OR OTHERWISE NOTWITHSTANDING THE BROAD GRANT OF RELEASE SET OUT IN SECTION 6.03 AND SUBJECT TO ANY LIMITATIONS CONTAINED IN THE APPLICABLE SERVICE CONTRACT OR GENERALLY AT LAW, THE CLIENT SHALL CONTINUE TO HAVE THE RIGHT TO MAKE A CLAIM, COMMENCE OR MAINTAIN ANY ACTION OR PROCEEDING AGAINST THE CLIENT S APPROVED OSP FOR ANY REASON INCLUDING BUT NOT LIMITED TO ANY BREACHES OF THE SERVICE CONTRACT BETWEEN THE CLIENT AND THE APPROVED OSP. NOTHING IN THIS SECTION MODIFIES OR CHANGES IN ANY WAY THE RELEASE PROVIDED BY THE APPROVED OSP IN FAVOUR OF OSCAR EMR, MCMASTER UNIVERSITY AND RELATED PARTIES THERETO AS SET OUT IN ARTICLE 6 OF THE AFFILIATION AGREEMENT WHICH RELEASE REMAINS IN FULL FORCE AND EFFECT. ARTICLE 7 Term and Termination 7.0 Subject to Sections 7.02 and 7.03, this Agreement shall commence as of the date hereof and shall continue in full force and effect thereafter until such time as the Client s Service Contract or the Affiliation Agreement between OSCAR EMR and the Client s Approved OSP is terminated, in which case this Agreement shall automatically terminate In the event the Client is in default of any terms of this Agreement and the default continues following ten (0) days written notice provided by OSCAR EMR, then OSCAR EMR may immediately terminate this Agreement notwithstanding the terms of any Service Contract entered into by the Client with the Approved OSP. Upon termination OSCAR EMR shall notify the Client s Approved OSP and the Client shall no longer be entitled to receive OSCAR with the relevant Certifications and any of the corresponding benefits related thereto. Thereafter the Client s login screen of OSCAR shall identify the version of OSCAR as Non-Affiliated and the Client shall be required to electronically accept the terms of the Non-Affiliated version of OSCAR. The provisions contained in Articles 5 and 6 herein shall remain in full force and effect notwithstanding the termination of this Agreement OSP-F0 OSCAR Terms of Use Agreement Rev 2. 26/0/205 Page 7

8 7.03 Either Party may terminate this Agreement at any time in such Party's sole and absolute discretion, upon not less than three (3) month's prior written notice to the other Party. It being understood however the obligations contained in Articles 5 and 6 shall remain in full force and effect notwithstanding the termination of this Agreement. ARTICLE 8 GENERAL 8. 0 Governing law/consent to jurisdiction and venue. This Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario, without reference to the choice of law provisions thereof. All aspects of all actions brought relating to the subject-matter of this Agreement shall be governed by Ontario law, without reference to the choice of law provisions thereof. The Parties hereby consent to the exclusive jurisdiction and venue of the courts of Ontario for any action that may be brought in connection with this Agreement Entire Agreement. Each Party to this Agreement acknowledges that this Agreement constitutes the entire Agreement of the parties with regard to the subject-matters addressed in this Agreement, that this Agreement supersedes all prior or contemporaneous agreements, discussions, or representations, whether oral or written, with respect to the subject-matter of this Agreement, and that this Agreement cannot be varied, amended, changed, waived, or discharged except by a writing signed by all parties provided however the OSCAR EMR may upon ninety (90) days prior written notice amend the Certification Fees payable as determined by it in its sole discretion, or require the Client to agree to changes in the quality standards as may be then prescribed by the ISO 3485:2003 certified OSCAR EMR Quality Management System. Each Party to this Agreement further acknowledges that no promises, representations, inducements, agreements, or warranties, other than those set forth herein, have been made to induce the execution of this Agreement by said Party, and each Party acknowledges that it has not executed this Agreement in reliance on any promise, representation, inducement, or warranty not contained herein Notices. Any notice required or permitted to be given hereunder by a Party to the other will be in writing and will be deemed validly given if personally delivered or if mailed by registered mail, postage prepaid and addressed as follows: In the case of OSCAR EMR to: 75 Longwood Road South Hamilton, ON L8P 0A Attention: Dr. David Price OSP-F0 OSCAR Terms of Use Agreement Rev 2. 26/0/205 Page 8

9 In the case of the Approved OSP to: In the case of the Client to: 8.04 Assignment Rights. The Client may not assign its rights and interests in this Agreement to a third party, without the prior written consent of OSCAR EMR, which consent may be unreasonably withheld. OSCAR EMR may assign, without restriction, all or any portion of its rights and interests under this Agreement to any third party and the Client agrees that upon such assignment by OSCAR EMR, OSCAR EMR shall be fully released from any and all obligations under this Agreement or otherwise in law by the Client and upon written request by OSCAR EMR, the Client shall execute such further assurances related to such release as may be requested by OSCAR EMR or its assignee from time to time related to such assignment and release Multiple counterparts. This Agreement may be executed in several counterparts, all of which taken together shall constitute one single Agreement between the Parties. In the event that any signature is delivered by facsimile transmission or similar executed electronic copy, such signature shall create a valid and binding obligation of the Party executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile or similar executed electronic copy were an original thereof This Agreement shall enure to the benefit of and be binding upon each of the Parties hereto and their respective heirs, executors, administrators, legal personal representatives, successors and permitted assigns. The Client further represents and warrants that it has authority to bind all of its Users to this Agreement and covenants and agrees to execute or have executed by its User such further assurances related thereto as may be prescribed by OSCAR EMR from time to time. Open Source Clinical Application Resource (OSCAR) Electronic Medical Record (EMR) Inc. Per: OSP-F0 OSCAR Terms of Use Agreement Rev 2. 26/0/205 Page 9

10 Name: Title: Date: I/We have authority to bind the corporation (Approved OSP): Per: Name: Title: Date: I/We have authority to bind the corporation W I T N E S S Name: CLIENT Name: OSP-F0 OSCAR Terms of Use Agreement Rev 2. 26/0/205 Page 0

11 Appendix A: OSP Installation Audit - OSP-F05 Rev 3.0-6/29/2 The table below outlines all the audit requirements that will be performed at a client s site. All audits will take place in the presence of the Client and with the Client s consent. The audit is intended to ensure that all elements of the client s system have been installed according to the specifications outlined in the ISO 3485:2003 Approved OSP Implementation Manual. Section Description Required Elements 2 2 OSCAR 2 Ubuntu Manual Installation Prerequisites OSCAR 2 Ubuntu Manual Installation Prerequisites OSCAR 2 Ubuntu Manual Installation - Installing the Infrastructure Packages OSCAR 2 Ubuntu Manual Installation - Installing the Infrastructure Packages OSCAR 2 Ubuntu Manual Installation - Installing the Infrastructure Packages OSCAR 2 Ubuntu Manual Installation - Configuring the Base Package OSCAR 2 Ubuntu Manual Installation - Getting the OSCAR Source Code OSCAR 2 Ubuntu Manual Installation - Create the OSCAR Database OSCAR 2 Ubuntu Manual Installation - Create the OSCAR Database OSCAR 2 Ubuntu Manual Installation - Setting up OSCAR Properties OSCAR 2 Ubuntu Manual Installation - Tomcat Reinforcement OSCAR 2 Ubuntu Manual Installation - Importing DrugRef-2/3 Interfaces to External Providers - OSCAR Billing and OHIP file submission Interfaces to External Providers - Lab Setup Ubuntu 0.4 LTS "Lucid" Eclipse Java JDK MySQL database Tomcat v6 Version 2 OSCAR Database Select correct billing module Verify properties are set up Increased memory DrugRef database Verify that OSCAR billing and OHIP file submission are working Ensure labs are being received 2 Interfaces to External Providers - OLIS Ensure OLIS system functioning 2 Interfaces to External Providers - HRM Ensure HRM system functioning 2 Interfaces to External Providers - Clinical Ensure Clinical Connect is Connect functioning 3 Hardware Requirements Complete the hardware Completed (Y/N/NA) OSP-F0 OSCAR Terms of Use Agreement Rev 2. 26/0/205 Page

12 requirements audit checklist below 4 Network Requirements Firewall enabled 4 Network Requirements Restricted port access (042 or secure port and port 22 are only allowed or equivalent ) 4 Network Requirements External access to the router disabled 4 Network Requirements Router set with strong password 4 Network Requirements If wireless access preset, it must be set with security protocol (WPA or WPA2) and preferably on VLAN (Virtual Local Area Network) 5 Bandwidth Requirements 6 Privacy and Security NA 7 Peripheral Devices Customizations and Special 8 Configurations 9 Backup and Maintenance Check backup log 0 Disaster Recovery Ensure clinic was provided with a copy of the disaster recovery plan and that it was reviewed with them OSP-F0 OSCAR Terms of Use Agreement Rev 2. 26/0/205 Page 2