Avel eCare Terms and Conditions

THESE TERMS & CONDITIONS (“T&Cs”) govern the proposal for services from one or more of Avel’s telemedicine Services Lines (“Proposal”) entered into between Avel eCare (“Avel”) and the party specified in the proposal (“Hospital”) and if expressly defined in the Proposal, Hospital is inclusive of any of Hospital’s Affiliates. Avel and Hospital are sometimes referred to herein as a “Party” and together as the “Parties.” These T&Cs are incorporated into all Proposals unless a separate master services agreement exists between Avel and Hospital.

ARTICLE I – TERM

Section 1.1 Initial Term. Unless specified otherwise in the Proposal, the Term commences on the Effective Date and will continue (i) until the later of three (3) years, (ii) until the final day of the month following the third (3^rd) anniversary of the Go-live Date, unless terminated as provided in Article IX (“Term”). For purposes of this Section 1.1, if Hospital obtains services from multiple Services Lines or Services are obtained for multiple Facilities, the latest Go-live Date will be utilized for purposes of calculating the Term.

Section 1.2 Renewal Term(s). Subject to earlier termination as provided elsewhere, the Term will automatically renew for successive one (1) year terms until either Party desiring to terminate this Agreement provides notice to the other Party of its intent not to renew no later than ninety (90) days prior to the beginning of the next renewal. As used in this Agreement, “Term” shall be inclusive of any renewal term(s).

ARTICLE II – SERVICES

Section 2.1 Services. Avel will furnish the Services detailed in the Proposal, subject to these T&Cs, and any service-line specific requirements specified in the Proposal.

ARTICLE III – INITIAL TRAINING; IMPLEMENTATION

Section 3.1 Training and Implementation. Upon receipt of a signed Proposal, Avel will begin working collaboratively with Hospital to complete training and implementation activities determined necessary to begin Services. Avel anticipates that training and implementation for Services will not exceed ninety (90) days, provided however, circumstances outside of Avel’s control and/or the Proposal or Service Line Terms may establish alternative timelines. Hospital acknowledges timely commencement of Services requires Hospital’s best efforts to adhere to all requirements associated with Avel’s implementation efforts detailed in this Article III and accordingly, Avel reserves a right to assess additional one-time and/or recurring fees (up to an amount equal to the full monthly service fee) if the Go-live Date is materially delayed due to circumstances within Hospital’s control (including any failure to allocate internal resources or use best efforts to implement the service). Accordingly, Hospital will assign primary and secondary points of contact within each Facility to assist Avel with implementation and to work collaboratively with Avel to adhere to Avel’s implementation timelines and expectations.

Section 3.2 Hospital Administrative Requirements. Hospital agrees requirements may include without limitation: (i) efforts ensuring Staff participate in initial education/planning session(s) and regularly scheduled educational events, and specifically, ensure that appropriate clinical Staff and leadership attend onsite and video training events or reviews, including any onsite “go-live” education for Staff who will be utilizing the Services;

(ii) promote Staff engagement and acclimation to Services, including encouragement of primary care provider participation in Avel-provided primary care providers’ education and training regarding the Services, if applicable; (iii) develop an implementation team for each Facility to collaborate with Avel on implementation timelines; and (iv) if required by the Services Line, provide information necessary to enable Avel to establish identification and password information for Staff who have a legitimate need to access Avel-supplied software that supporting the Service.

Section 3.3 Hospital Facility and IT Requirements. In addition to the foregoing, Hospital agrees to comply with the following Facility and IT requirements: (i) Grant reasonable access to Facility for purposes of conducting a wireless network assessment of the Facility or Facilities, unless determined by Avel to be unnecessary; (ii) direct Facility’s IT personnel to take direction from and cooperate with Avel to enable Avel to perform IT implementation functions, which may include, without limitation: (a) IT hardware engineering support from Avel including set-up, delivery, and testing of Equipment; (b) Avel IT engineering support for connectivity, including entering into any letters of authorization designating Avel to establish a design, provisioning, and ongoing connectivity support with Hospital’s internet service provider or network service provider, as necessary to support the Services; and (c) when applicable, testing and ongoing access to Facility’s EMR and Picture Archiving Communication System (PACS) or comparable radiology imaging system as necessary to support the Services.

ARTICLE IV – ONGOING OPERATIONAL SUPPORT

Section 4.1 Avel Support. Avel will provide throughout the Term ongoing operational support to assist with ensuring Hospital’s reliable access to and utilization of the Services. Support may include, but will not be limited to (i) assign an Avel manager who will work collaboratively with leadership and Staff of each Facility; and (ii) provide change management support to develop Staff trust, acclimation, and workflow integrations to support the use of telemedicine services by hospital; (iii) provide opportunities to participate in regularly scheduled, Avel-led conference calls or other education opportunities.

Section 4.2 Licensing. Avel will ensure the timely licensing of Avel physicians, nurses, and/or other practitioners providing Services in accordance with licensure requirements in the state of the Originating Site, as applicable. Likewise, Avel will ensure any Services that includes pharmacy services will be provided by pharmacists appropriately licensed for practice within the state, as directed by the applicable state board of pharmacy.

Section 4.3 Credentialing and Privileging. Avel will perform delegated credentialing and privileging of all Avel practitioners requiring privileges as Originating Sites, as set forth in one or more separate Agreements for Credentialing and Privileging of Avel’s Telemedicine Practitioners. To accommodate delegated credentialing by Avel, Hospital agrees neither Avel nor any of its practitioners will incur any charges for credentialing and privileging at the Originating Site.

The Parties understand and agree that Hospital and it medical staff maintain complete and final authority and control over credentialing and privileging of providers practicing at the Facility. Further, the Parties understand and agree that all credentialing and privileging relating to the services provided pursuant to this Agreement must comply with applicable regulatory requirements and requirements of The Joint Commission.

Section 4.4 Quality Metrics; Reporting. Avel will collect and disseminate to Hospital evaluation and quality metrics at reasonable intervals during the Term. Such data may include, without limitation, pharmacy turnaround time and discrepancy rates. Additionally, de-identified data may be disseminated to the larger Avel Affiliate stakeholder group. To the extent applicable, Avel will provide the Hospital with reporting related to utilization of Avel’s Services provided to each Facility on a recurring basis, but no more frequently than monthly. Hospital agrees to provide Avel with all data requested which Avel reasonably determines to be necessary to complete such reports.

Section 4.5 Hospital and Facility Requirements. Hospital agrees to provide and abide by, at its sole cost and expense, all of the typical and customary services and facility requirements that may be appropriate to facilitate the provision of Services, and further, use best efforts to require each Facility to cooperate with Avel’s efforts to provide the same, including entering into any Agreements for Credentialing and Privileging of Avel eCare Telemedicine Practitioners with Avel.

ARTICLE V – ONGOING EQUIPMENT AND CONNECTIVITY SUPPORT

Section 5.1 Hospital Ongoing Equipment and IT Requirements. Throughout the Term, Hospital agrees to promptly notify Avel IT prior to any Facility information systems or security systems upgrades or modifications, and any modifications to maintenance schedules. Hospital agrees to participate in recurring connectivity and audio/video equipment testing between Facility and Avel. Hospital, Hospital IT, and Facility will collaborate with Avel IT for testing and ongoing support of Equipment. If Avel retains ownership of the Equipment, Hospital shall, at Hospital’s sole cost and expense, return to Avel all Equipment, in good working condition, within sixty (60) days after the expiration of the Term or other termination of this Agreement. During the Term Hospital shall insure the Equipment as required in Section 8.3 hereof.

Additionally, Hospital will provide, fund, and maintain internal wiring to designated location(s) within Facility as necessary to support Services. Hospital agrees to fund wireless equipment, related supplies, and corresponding maintenance plan as necessary to support the Services.

Section 5.2 Connectivity for Services. Unless alternative connectivity arrangements are approved by Avel, Hospital agrees to fund such MPLS or other dedicated private network connection(s), virtual private network, or other internet connection with acceptable bandwidth and sufficiently low latency as determined by Avel to be necessary to securely connect to the Avel private data network and accommodate the data requirements of the Services described herein.

ARTICLE VI – PAYMENT TERMS

Section 6.1 Fees. Fees for Services will be specified in the Proposal and may consist of one-time implementation fees and recurring monthly fees attributable to clinical services, support services, and IT services. If the Proposal specifies Avel will obtain network connectivity on behalf of the Hospital, fees may also consist of recurring Network Access Connectivity Fees attributable to the costs of Avel obtaining a network connection on Hospital’s behalf.

Section 6.2 Payment Terms. One-time implementation fees will be payable to Avel upon the signing of the Proposal. Recurring fees will be invoiced by Avel on a regular basis no less frequently than quarterly. Unless specified otherwise, Hospital agrees to remit payment to Avel for all invoiced fees within thirty (30) days of the invoice date. Unless specified otherwise, all fees will be subject to an annual increase of up to three and a half percent (3.5%) annually.

Section 6.3 System Change Fee. If at any point during the Term Hospital or Facility’s management chooses to implement a different EMR and/or make technical changes that require material revisions to Avel’s configuration of Equipment or the Software, Hospital agrees to provide notice and pay a system change fee in the amount of ONE THOUSAND AND NO/100 DOLLARS ($1,000.00) per Facility no later than ninety (90) days prior to the scheduled implementation of such new EMR and/or technical revision. Hospital agrees to use best efforts to ensure that Staff and IT at each Facility work collaboratively with Avel in connection with activities associated with the implementation of such EMR. Avel expressly reserves a right to evaluate all proposed EMR or technical changes to determine if any such change will inhibit Avel’s ability to perform the Services, and if necessary, Avel may terminate this Agreement upon thirty (30) days’ notice to the Hospital.

Section 6.4 Pricing Assumptions. Hospital acknowledges that the Service pricing described in the Proposal may be based upon Hospital representations submitted to Avel for purposes of determining anticipated utilization of the services described herein. If at any point during the Term Hospital representations cease to be materially accurate or circumstances outside of each party’s control cause utilization of the services to increase materially, Hospital agrees pricing may be increased by Avel to reflect the fair market value of the services offered. If Avel elects to increase pricing, Avel will provide thirty (30) days’ written notice to Hospital prior to making such change.

Section 6.5 Finance Charge on Outstanding Amounts. If any invoices are not paid within thirty (30) days of the invoice date, Avel reserves the right to charge to Hospital a monthly finance charge equal to the lesser of one and one-half percent (1.5%) on all outstanding amounts owed to Avel or the maximum rate allowed by then-applicable law.

Section 6.6 Taxes; Tax Exemption. The fees invoiced in the manner provided herein do not include any amount collected for taxes which may be owed by Hospital. Each Party shall bear sole responsibility for any income tax; sales or use tax; taxes, assessments or other real or personal property-related levies on owned or leased real or personal property for franchise or similar taxes on its business; for employment taxes on any Party’s employees; and for intangible taxes on property it owns or licenses. If Hospital claims a tax exemption of any kind, Hospital agrees to provide Avel with the appropriate documentation to demonstrate such exemption.

ARTICLE VII – MARKETING AND INTELLECTUAL PROPERTY

Section 8.1 Minimum Insurance Requirements. Each Party shall maintain at its sole cost and expense the following insurance with required limits being minimum limits and which limits may not adequately insure the exposure. Such insurance may be maintained through commercial underlying or excess insurance contracts, a plan of self-insurance approved by the governing body of the Party maintaining such self-insurance, a facility’s participation in a state specific patient compensation fund or professional excess liability fund or a combination of any of the three. Evidence of required insurance shall be provided upon receipt of a written request:

8.1.1 General liability in the amount of One Million Dollars ($1,000,000) per occurrence; and

8.1.2 Professional liability insurance with minimum limits of One Million Dollars ($1,000,000) per occurrence and Three Million Dollars ($3,000,000) annual aggregate.

8.1.3 Applicable state statutory limits for workers compensation.

8.1.4 Without limiting any of the obligations or liabilities of Hospital or Facility, Hospital shall carry and maintain, at its own expense including any applicable deductibles or retentions, as long as respective, applicable statutes of limitation or repose are in effect relating to the specific purposes of this Agreement for services at the Facility or Facilities, Network Security insurance with limits of not less than Five Million Dollars ($5,000,000) for each occurrence and an annual aggregate of Five Million Dollars ($5,000,000) covering claims involving privacy violations, information theft, damage to or destruction of electronic information, intentional and/or unintentional release of private information, alteration of electronic information, extortion and network security. Such coverage shall provide twelve months of “credit watch” coverage for individuals whose protected health information has been inappropriately accessed.

In the event either Party procures a “claims-made” policy to meet the insurance requirements herein, such Party agrees, following the termination of the Agreement, to purchase an indefinite extended reporting endorsement “Tail” or to provide continuing coverage as required in the Agreement.

The Parties agree that their respective employees are not employees of the other Party and are not eligible for workers’ compensation coverage carried by the other Party. Each Party agrees to provide for its employees necessary workers’ compensation protection, as required by law.

Section 8.2 Mutual Indemnification. Avel agrees to hold harmless and indemnify Hospital and Facility, and their respective officers, agents and employees, from and against any and all actions, suits, damages, liability or other proceedings which may arise as the result of the negligence, misconduct, error or omission of any officer, agent or employee of Avel. Likewise, Hospital and Facility each agree to hold harmless and indemnify Avel, its officers, agents and employees, from and against any and all actions, suits, damages, liability or other proceedings which may arise as the result of the negligence, misconduct, error or omission of any officer, agent or employee of Hospital and/or Facility. Notwithstanding the foregoing, in the event of a conflict associated with clinical decisions related to a course of treatment for any Patient, it is conclusively acknowledged that the clinical determination of the provider physically located at the Originating Site and acting on behalf of the Hospital or Facility will control, and Hospital and Facility agree to hold harmless and indemnify Avel, its officers, agents and employees, from and against any and all actions, suits, damages, liability or other proceedings which may arise as the result of such determination.

Section 8.3 Equipment Maintenance and Insurance. Avel will retain all right, title, and interest in and to all Equipment furnished to any Facility pursuant to provider services, except to the extent Facility has purchased such Equipment from Avel. Avel may maintain service plans to provide for replacement parts, equipment and software updates as needed based on reasonable operation of any Avel-owned Equipment. Hospital shall insure all Avel-owned Equipment at levels that provide replacement cost coverage with Avel named a loss payee as its interests appear. Hospital shall be responsible for any deductible maintained.

Section 8.4 Kansas Health Care Stabilization Fund. For Kansas Hospitals, Avel represents that each Avel practitioner who provides services to Hospital’s patients will be covered through the Kansas Health Care Stabilization Fund in amounts of not less than One Million Dollars ($1,000,000) per occurrence and Three Million Dollars ($3,000,000) annual aggregate.

ARTICLE IX – TERMINATION

Section 9.1 Termination for Cause. The Services may be terminated by either Party “for cause” based upon the occurrence of any of the following: (i) a material breach of any term or condition of these T&Cs, any related Credentialing and Privileging Agreement, or any related Business Associate Agreement, provided if the breach is capable of being cured the breaching Party shall be provided written notice describing the breach with a reasonable detail and thereafter be granted thirty (30) days from the receipt of such notice to remedy the identified material breach; (ii) Hospital’s failure to pay when due any amount owing to Avel which amount remains unpaid five (5) days following any due date; (iii) the insolvency, receivership, or bankruptcy of either Party, (iv) the dissolution, liquidation, or substantial cessation of business of either Party, or (v) as otherwise provided in the Proposal or the T&Cs.

Section 9.2 Early Termination Fee. If Hospital terminates the Services described in any Proposal prior to the end of the Term, Hospital shall pay Avel an early termination fee (“ETF”) calculated as follows:

(Average monthly fee calculated by using the most recent three (3) months of fees) x (the number of months remaining in the contract) = ETF

For example, if the most recent three (3) months of fees were $10,000, $10,200, and $10,100, and there are six (6) months remaining in the contract, the ETF would be calculated as follows:

Average monthly fee =
($10,000 + $10,200 + $10,100) / 3 = $10,100

ETF = $10,100 x 6 = $60,600

If Hospital terminates before the end of the third month of service, the average monthly fee used for the above calculation will be a reasonable estimate of the monthly service fee, but in no event will this be less than the base monthly service fee.

Hospital agrees this ETF is a reasonable estimate of the damages that Avel would suffer as a result of early termination, and that it is not intended as a penalty. The ETF shall be payable to Avel within thirty (30) days of the date of termination. This provision shall survive the termination of this agreement.

ARTICLE X – GENERAL PROVISIONS

Section 10.1 Business Associate Agreement. The Parties acknowledge the Services may require non-physician Avel personnel to have access to patient health information or other sensitive information, accordingly the Parties agree that unless another separate business associate agreement has been previously entered into among the Parties, the Business Associate Agreement setting forth each Party’s responsibilities with regard to HIPAA privacy regulations attached hereto as Exhibit A will apply to all Avel services effective as of the date Hospital signs the Proposal.

Section 10.2 Compliance. The Parties agree to maintain proper compliance with state and federal laws, ordinances and regulations, and any Joint Commission standards associated with telemedicine services and remote medication order processing practices, as applicable.

Section 10.3 Warranty. Avel hereby represents and warrants that it and its personnel (a) have, and will maintain at all times throughout the terms of this Agreement, all the necessary qualifications, certifications, licenses and/or accreditations required by federal, state, and local laws and regulations to provide the Services covered by this Agreement (collectively “Required Licenses”): and (b) are not, and at no time have been, sanctioned under any applicable state or federal fraud and abuse statutes. Avel will provide Facility with a copy of its Required Licenses applicable to the Services upon request.

Section 10.4 Participation in Government Programs. The Parties represent and warrant that their respective officers, directors and employees (a) are not currently excluded, debarred, or otherwise ineligible to participate in the federal health care programs as defined in 42 USC § 1320a-7b(f) (the “Federal Healthcare Programs”); (b) have not been convicted of a criminal offense related to the provision of healthcare items or services but have not yet been excluded, debarred, or otherwise declared ineligible to participate in the Federal Healthcare Programs, and (c) are not, to the best of its knowledge, under investigation or otherwise aware of any circumstances which may result in a Party being excluded from participation in the Federal Healthcare Programs. This shall be an ongoing representation and warranty during the Term of this Agreement and the Party shall immediately notify the other Party of any change in the status of the representations and warranty set forth in this section. Any breach of this section shall give a Party the right to terminate this Agreement immediately for cause.

Section 10.5 Confidentiality. All data and information and know-how, in whatever form transmitted, including, but not limited to, information concerning a Party’s past, present and future business affairs, business plans, operations or systems, the terms of this Agreement, pricing information, personal information of any employee, and all operation manuals and procedures applicable to the provision of the Services (“Confidential Information”), furnished from one Party (“Disclosing Party”) to the other Party (“Receiving Party”) shall be regarded as confidential, and shall remain the sole property of the Party initially providing the information, and shall be held in confidence and safekeeping for the sole use of the Parties under the terms of this Agreement. Confidential Information as used herein will expressly include any information the Disclosing Party has identified as being proprietary and/or confidential or that, by the nature of the circumstances surrounding the disclosure, ought in good faith to be treated as proprietary and/or confidential. The Receiving Party agrees to treat all Confidential Information with the same degree of care, and will make no use of such Confidential Information during the existence of this Agreement except pursuant to the receipt or delivery of Services.

The Receiving Party shall have no obligation to maintain the confidentiality of information that: (i) it received rightfully from another party without restrictions on disclosure prior to its receipt from the Disclosing Party; (ii) the Disclosing Party has disclosed to an unaffiliated third party without any obligation to maintain such information in confidence; or (iii) is independently developed by the Receiving Party. Except as otherwise provided, the Receiving Party shall not disclose, disseminate, distribute or use any of the Disclosing Party’s Confidential Information to any third party without the Disclosing Party’s prior written permission. The Parties agree that a breach of the terms of this subsection would result in irreparable injury to the Disclosing Party for which a remedy in damages would be inadequate. The Parties agree that in the event of such breach or threatened breach the Disclosing Party shall be entitled to seek an injunction to prevent or attempt to mitigate the breach or threatened breach, in addition to remedies otherwise available for such specific performance or injunctive relief, that the Disclosing Party has an adequate remedy at law.

Section 10.6 Assignment. Neither this Agreement nor any rights or obligations hereunder shall be assigned by any Party without the prior written consent of the other Party, except that this Agreement may be assigned by Avel to the survivor in any merger or other business combination including any party, or to the purchaser of substantially all of the assets of Avel or otherwise to any affiliate of Avel.

Section 10.7 Avel Contracting Entity. The Avel entity entering into this Agreement will be determined based on the physical location of Hospital’s hospital, clinic, school, or other facility receiving services or if pharmacy services are obtained as indicated in below:

	Avel contracting entity
Avel pharmacy services regardless of Hospital location:	Avel eCare, LLC, a South Dakota limited liability company, 4500 N. Lewis Ave, Sioux Falls, SD 57104
Hospitals physically located in Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Georgia, Indiana, Iowa, Kentucky, Louisiana, Massachusetts, Maryland, Michigan, Minnesota, Montana, Nevada, North Carolina, North Dakota, New Jersey, Nevada, New York, Ohio, Oregon, Pennsylvania, South Dakota, Tennessee, Texas, Washington, West Virginia, or Wisconsin:	Avel eCare Medical Group, P.C., a South Dakota professional corporation 4500 N. Lewis Ave Sioux Falls, SD 57104
Hospitals physically located in Kansas:	Avel eCare Medical Group (KS), P.A., a Kansas professional association 4500 N. Lewis Ave Sioux Falls, SD 57104

All other locations:	Avel eCare, LLC, a South Dakota limited liability company, 4500 N. Lewis Ave, Sioux Falls, SD 57104

Section 10.8 Notices. Any notice or other communication required or permitted under this Agreement shall be in writing and shall be deemed to have been given on the date delivered personally or deposited in the United States Postal Service, certified mail, return receipt requested, with adequate postage affixed, addressed to Hospital as specified in the address provided on the first page of the Proposal and to Avel as follows:

Avel: Avel eCARE

4500 North Lewis Avenue

Sioux Falls, SD 57104

ATTN: CEO

With copy to: Avel eCARE

4500 North Lewis Avenue

Sioux Falls, SD 57104

ATTN: Legal/Contracting

Any Party may change its address for notices by giving written notice of such change to the other Party in accordance with the terms of this paragraph.

Section 10.9 Governing Law. The Parties’ contractual rights and obligations hereunder shall be construed and governed by the laws of the State of South Dakota and venue of any proceedings arising hereunder shall be in said state.

Section 10.10 Integration of Terms; Modification; Conflict of Terms. The Proposal, these T&Cs, the Business Associate Agreement attached as Exhibit A, and any Credentialing and Privileging Agreement between the Parties, together with all ancillary agreements constitutes the entire agreement between the Parties and supersedes any prior agreement or understanding between the Parties with respect to its subject matter. These T&Cs may be modified by Avel from time to time. To the extent the terms described in these T&Cs conflict with terms described in the Proposal, the terms of the Proposal will prevail.

Section 10.11 No Waiver. No waiver of breach or any failure of Avel to exercise any option, right, or privilege in accordance with the terms of this Agreement or any Avel act on any occasion or occasions shall be construed to be a waiver of the same or any other option, right, or privilege on any other occasion.

Section 10.12 Medicare Access. In accordance with 42 U.S.C. § 1395x(v)(I)(i) & (ii), until the expiration of four (4) years after the furnishing of services under this Agreement, the Parties shall make available, upon written request by the Secretary, U.S. Department of Health and Human Services or upon request by the U.S. Comptroller General, or any of their duly authorized representatives, the contracts, books, documents and records that are necessary to certify the nature and extent of costs of any agreement between the Parties.

In the event of a request for access under the cited provisions, the Parties agree to notify each other immediately and to consult with each other regarding what response will be made to the request.

In the event that a Party fails to comply with the terms and provisions of this Agreement relating to the retention and production of documents, that Party agrees to indemnify and make whole the other Party for any third-party reimbursement it may lose as the result of the refusal of that Party or its subcontractor to maintain or produce documents in accordance with the provisions herein.

The provisions relating to the retention and production of documents set forth herein is included because of the possible application of Section 1861(v)(1)(I) of the Social Security Act to such agreements or contracts between the Parties, and if this Section should be found to be inapplicable, then these clauses shall be deemed to be inoperative and without force and effect.

Section 10.13 Independent Contractor. Avel and Hospital agree that the Services to be rendered by Avel (or its designees) are the services of a professional working as an independent contractor and nothing herein is intended nor shall be construed to create between Hospital and Avel an employer/employee relationship, a joint venture relationship, or a lease or landlord/tenant relationship, or to allow Facility to exercise control or direction over the manner or method by which Avel provides Services, provided that such Services are rendered in a professional and competent manner in keeping with the policies and directives of Facility. Avel understands that Facility will not pay or withhold on behalf of Avel any sums for federal or state income tax, any other federal or state tax, unemployment insurance, social security or any other withholding pursuant to any law or requirement and that all such payments and withholdings are the sole responsibility of Avel. In the event a claim, demand, or action is brought against Facility for such taxes, premiums or other withholdings, Avel agrees to indemnify and hold harmless Facility for such claim and any related expenses (including attorney’s fees).

Section 10.14 Data Collection/Research Activities. Hospital acknowledges that to the extent Avel receives research grant funding to facilitate the establishment of certain Telemedicine services described in any Proposal, and Hospital agrees to assist Avel with abiding by grant requirements by (i) providing EMR extract files related to behavioral health services work to support third-party evaluation work including information from emergency/observation/inpatient services related to patient demographics, diagnosis, disposition, claims; (ii) providing a Staff expert to help with interpretation of chart or EMR data; (iii) providing a Staff expert to help with EMR extract file work and data definitions; and (iv) supporting with training and resources and making accommodations for Avel to increase ability to collect Avel-requested data. Hospital shall provide Avel EMR access to patient history, admissions, discharge, transfers, laboratory and pharmacy to the extent available in documentation. The Parties’ obligations to maintain confidentiality and security of information shall be fully set forth on a separate Data Use Agreement to be executed by both Parties.

DEFINITIONS

Except where clearly indicated otherwise by the context of any particular Section herein, capitalized terms used in this Agreement have the following meanings:

“Affiliate” means an entity controlling, controlled by, or under common control with Avel or Hospital, as context requires.

“Agreement” means the agreement between Avel and Hospital which consists of a Proposal, applicable Service Line Terms, and these T&Cs.

“Avel” and “Avel eCare” mean the Avel contracting entity as defined in Section 10.7 of these T&Cs.

“Distant Site” means the location of the Avel-affiliated provider, pharmacist, or other healthcare professional that delivers Telemedicine Services to a Hospital or Facilty.

“EMR” means the electronic medical record utilized and maintained and owned by Hospital pursuant to the operation of its healthcare facility.

“Equipment” means configured hardware items determined by Avel to be necessary for the utilization of Telemedicine Services.

“Facility” and “Facilities” shall mean the location or locations where Avel will provide Hospital with Telemedicine Services and related services as described in any Proposal.

“Go-live Date” means the mutually agreed upon date when Telemedicine Services furnished by Avel begin to support real-time clinical workflow following the completion of all service line-specific implementation and training.

“Intellectual Property” means all proprietary rights of every kind and nature however denominated, throughout the world, including but not limited to rights in and to patents of any type or nature and patentable inventions; copyrights, industrial designs, and other works of authorship, whether or not registered, proprietary methods, processes, and procedures, confidential information, trade secrets, know how, and database rights; trademarks, trade names, service marks, service names, brands, trade dress, domain names, and logos, whether or not registered.

“IT” means information technology and related ancillary services necessary to support connectivity and other technical components necessary for the delivery of the Telemedicine Services.

“Network Access Connectivity Fee” means the fee payable for connectivity services described in the Proposal, if applicable.

“Originating Site” means the Facility where Hospital received consultative Telemedicine Services from Avel, or the location of the patient receiving care, as context requires.

“Patient” means a person receiving healthcare services at a Facility that utilizes Avel’s Telemedicine Services.

“Proposal” will have the meaning given in the preamble of these T&Cs.

“Service Line” and “Service Lines” mean the distinct set of offerings provided by Avel to Hospital to support an aspect of clinical workflow at the Facility. Such offerings include without limitation, Emergency, Hospitalist, Pharmacy, and Behavioral Health.

“Services” means clinical Telemedicine services and related ancillary services (e.g. training and implementation, operational and IT support) set forth in the Proposal.

“Staff” means Hospital’s personnel that will interact with Telemedicine Services, including specifically the nursing management team, administrative team, physicians, and other relevant Facility employees, independent contractors, or agents under the direction or control of Hospital in departments and at a Facility or Facilities supported by the Telemedicine Services.

“Service Line Terms” mean Service Line-specific terms detailing clinical services.

“Telemedicine” means the utilization of two-way audio and video technology to provide healthcare services where an Avel professional is located at a Distant Site and the Hospital’s Patient is located at an Originating Site.

“Term” will have the meaning provided in Article I, and will be inclusive of any renewal term(s).

EXHIBIT A: BUSINESS ASSOCIATE AGREEMENT

THIS BUSINESS ASSOCIATE AGREEMENT (this “BAA”) is effective concurrently with any telemedicine services arrangement between Hospital and any of its affiliates (collectively “Covered Entity”) obtaining telemedicine services from Avel eCare (the “Business Associate”).

WHEREAS, the Covered Entity and the Business Associate have entered, or may in the future enter, into an agreement or agreements pursuant to which the Covered Entity may disclose certain Protected Health Information to the Business Associate or the Business Associate may create or receive Protected Health Information for or on behalf of the Covered Entity; and

WHEREAS, pursuant to 45 C.F.R. § 164.502(e)(2), the Covered Entity is required to enter into a written contract with the Business Associate which contains satisfactory assurances that the Business Associate will appropriately safeguard the Protected Health Information; and

WHEREAS, this BAA sets forth the terms and conditions upon which the Covered Entity will disclose Protected Health Information to the Business Associate or will allow the Business Associate to create or receive Protected Health Information for, or on behalf of, the Covered Entity.

NOW, THEREFORE, in reliance on the mutual covenants and promises contained herein, the Parties hereto hereby agree as follows:

Certain Definitions.
a. Administrative Safeguards has the same meaning as the term “administrative safeguards” in 45 C.F.R. §164.304.
b. Breach has the same meaning as the term “breach” in 45 C.F.R. § 164.402.

c. Breach of System Security means unauthorized acquisition of computerized data, limited to the information created, received, maintained, and/or transmitted by Business Associate from or on behalf of Covered Entity, that compromises the security, confidentiality, or integrity of Sensitive Personal Information maintained by a person, including data that is encrypted if the person accessing the data has the key required to decrypt the data.

d. Data Aggregation Services shall have the same meaning as is set forth in 45 C.F.R. § 164.501.

e. Designated Record Set shall have the same meaning as is set forth in 45 C.F.R. § 164.501.

f. Electronic Protected Health Information has the same meaning as the term “electronic protected health information” in 45 C.F.R. § 160.103.

g. Health Care Operations has the same meaning as the term “health care operations” in 45 C.F.R. § 164.501.

h. HITECH Act means the Health Information and Technology for Economic and Clinical Health Act, as codified at 42 U.S.C. § 1790, which was adopted as part of the American Recovery and Reinvestment Act of 2009 on February 17, 2009.

i. Individual shall have the same meaning as is set forth in 45 C.F.R. § 160.103.

j. Physical Safeguards has the same meaning as the term “physical safeguards” in 45 C.F.R. §164.304, as such provision is currently drafted and as it is subsequently updated, amended or revised.

k. Privacy Rules shall mean the Health Insurance Portability and Accountability Act of 1996 and the Health Information Technology for Economic and Clinical Health Act Privacy Rules set forth in 45 C.F.R. part 160 and part 164, subparts A and E.

l. Protected Health Information (PHI) shall have that same meaning as is set forth in 45 C.F.R. § 160.103.

m. Required by Law shall have the same meaning as is set forth in 45 C.F.R. § 164.103.

n. Secretary shall mean the Secretary of the United States Department of Health and Human Services or his designee.

o. Security Incident shall have the same meaning given to such term under the Security Rules, including, but not limited to, 45 CFR § 164.304.

p. Security Rules shall mean the Security Standards for the Protection of Electronic Protected Health Information at 45 CFR part 160 and part 164, subpart C.

q. Technical Safeguards has the same meaning as the term “technical safeguards” in 45 C.F.R. §164.304.

r. Unsecured PHI means PHI that is not secured by a technology standard that (i) renders PHI unusable, unreadable, or indecipherable to unauthorized individuals, and (ii) is developed or endorsed by a standards developing organization that is accredited by the American National Standards Institute.
The Covered Entity and the Business Associate have entered, and may in the future enter, into service agreements (the “Service Agreements”) pursuant to which the Business Associate provides services to the Covered Entity that require the use or disclosure of PHI (the “Services”). Except as expressly provided herein or as otherwise Required by Law, the Business Associate may only use or disclose PHI for the purpose of providing the Services. The Business Associate expressly agrees that any and all uses or disclosures of PHI by the Business Associate will be done in accordance with the terms of this BAA and the provisions of all applicable federal and state laws and regulations, including without limitation, the Privacy Rules.
Obligations and Activities of the Business Associate. The Business Associate hereby agrees:
a. that as of February 17, 2010 (unless amended by the U.S. Department of Health and Human Services), Business Associate agrees that it is directly governed by the following provisions of the Security Rules:
i. Administrative Safeguards (45 CFR § 164.308);

ii. Physical Safeguards (45 CFR § 164.310);

iii. Technical Safeguards (45 CFR § 164.312); and

iv. Policies and Procedures (45 CFR § 164.316).

Business Associate understands that it may be subject to civil and criminal penalties if Business Associate violates the Security Rule provisions described above.

b. not to disclose PHI other than as permitted or required by this BAA, the Service Agreements or as otherwise Required by Law;

c. to use appropriate Administrative, Physical and Technical Safeguards consistent with industry standards that reasonably and appropriately maintain the security of, prevent unauthorized use and/or disclosure of, and protect the confidentiality, integrity, and availability of any Electronic PHI or PHI not expressly permitted by this BAA, the Service Agreements or as Required by Law;

d. to mitigate, to the extent practicable, any harmful effects of which the Business Associate becomes aware that arise out of the use or disclosure of PHI by the Business Associate that is in violation of this BAA;

e. to report to the Covered Entity, within five (5) business days, any Security Incident, Breach of System Security or use or disclosure of Unsecured PHI not specifically permitted by this BAA of which it becomes aware, including, but not limited to, the date and scope of any successful unauthorized access, use, disclosure, modification, or destruction of PHI or interference with system operations in an information system containing PHI, of which the Business Associate becomes aware, including the following information:

i. Identification of the individual whose Unsecured PHI has been, or is reasonably believed by the Business Associate to have been, accessed, acquired, used, or disclosed during a breach;

ii. Circumstances of the breach;

iii. Date of the breach;

iv. Date of the discovery;

v. Type of PHI involved (such as full name, Social Security number, date of birth, home address, account number, or medical record number); and

vi. Any other additional information the Covered Entity requests.

f. require all of its subcontractors and agents that create, receive, maintain, or transmit Protected Health Information or Electronic PHI under this BAA to agree, in the form of a Business Associate Agreement that meets the requirements at 45 C.F.R. § 164.314(a), to adhere to substantially similar or more stringent restrictions and conditions on the use and/or disclosure of Protected Health Information that apply to the Business Associate.

g. upon three (3) days prior notice from the Covered Entity and during all regular business hours of the Business Associate, or at such times and upon such terms as the Secretary may require, to make available to the Covered Entity or the Secretary all internal practices, books and records, including but not limited to policies and procedures relating to the use and disclosure of PHI received from, or created or received by the Business Associate from or on behalf of the Covered Entity necessary to allow the Secretary to determine whether the Covered Entity is in compliance with the Privacy Rules;

h. to document all disclosures of PHI and such other information related to the disclosure of PHI as may reasonably be necessary for the Covered Entity to respond to any request by an Individual for an accounting of disclosures of PHI as permitted by 45 C.F.R. 164.528;

i. within thirty (30) days of receiving a written request from the Covered Entity, to provide to the Covered Entity, or an Individual, all information collected in accordance with Paragraph 3(h) of this BAA;

j. if the Business Associate maintains PHI in a Designated Record Set:

i. upon three (3) days prior notice from the Covered Entity and during all regular business hours of the Business Associate, to provide access to PHI to the Covered Entity or, as directed by the Covered Entity, to an Individual, contained in such Designated Record Set, as required by 45 C.F.R. 164.524; and

ii. within three (3) days of receiving written notice from the Covered Entity, to make any amendment(s) to PHI contained a Designated Record Set that the Covered Entity directs or agrees to pursuant to 45 C.F.R. 164.526.

k. maintain a disaster recovery plan to protect and/or recover records that are essential to the continuing operation of the Covered Entity in the event of a disaster. Upon reasonable request, the Business Associate shall provide the Covered Entity a brief written statement summarizing the status of its disaster recovery plan, where the Covered Entity acknowledges that such disaster recovery plan in confidential. As of the date of this BAA is signed, the Business Associate represents that its disaster recovery plan meets the requirements of the Security Rule.

4. Permitted Uses and Disclosures by the Business Associate. Except as otherwise limited by this BAA, the Business Associate may use or disclose PHI to perform the Services, as set forth in the applicable Service Agreement, provided that such use or disclosure, if made by the Covered Entity, would not violate the Privacy Rules or the minimum necessary policies and procedures of the Covered Entity.

5. Specific Use and Disclosure Provisions. Except as otherwise limited by this BAA, the Business Associate may:

a. use PHI for the proper management and administration of the Business Associate or to carry out the legal responsibilities of the Business Associate;

b. disclose PHI for the proper business administration of the Business Associate, provided that:

1. 1. any such disclosure is Required by Law, or
  2. the Business Associate obtains reasonable assurances from the person to whom the information is disclosed (the “Third Party”) that (a) PHI will remain confidential and will only be used or further disclosed for the purpose for which it was disclosed to such Third Party or as may otherwise be Required by Law, and (b) the Third Party agrees to notify the Business Associate of any instances of which the Third Party becomes aware that the confidentiality of PHI has been breached;
c. use PHI to provide Data Aggregation Services to the Covered Entity, as permitted by 45 C.F.R. 164.504(e)(2)(i)(B) provided that the purpose of such aggregation is to provide the Covered Entity with data analyses relating to the Health Care Operations of the Covered Entity; and
d. disclose PHI to report violations of law to appropriate federal and state authorities, consistent with 45 C.F.R. 154.502(j)(1).

6. Obligations of the Covered Entity. The Covered Entity shall notify the Business Associate of:

a. any limitation(s) in its notice of privacy practices, as required by 45 C.F.R. 164.520, to the extent that such limitation(s) may affect the Business Associate’s use or disclosure of PHI;

b. any changes in, or revocation of, permission by an Individual to use or disclose PHI, to the extent that such change or revocation may affect the Business Associate’s use or disclosure of PHI; and

c. any restriction(s) on the use or disclosure of PHI that the Covered Entity has agreed to in accordance with 45 C.F.R. 164.522, to the extent that such restriction(s) may affect the Business Associate’s use or disclosure of PHI.

7. Permissible Requests of the Covered Entity. The Covered Entity shall not request that the Business Associate use or disclose any PHI in any manner that would not be permissible under the Privacy and Security Rules if done by the Covered Entity, except as may otherwise be provided by Paragraph 5 of this BAA.

8. Term and Termination.

a. Termination by the Covered Entity for Cause. If the Business Associate breaches this BAA, the Covered Entity, in its sole discretion, may:

1. 1. provide the Business Associate written notice that the Business Associate has breached this BAA and provide the Business Associate an opportunity to cure the breach to the satisfaction of the Covered Entity within ten (10) days, after which time this BAA and all of the Service Agreements shall be automatically terminated if the breach is not cured; or
immediately terminate this BAA and the Service Agreements if the Business Associate has breached a material term of this BAA and cure is not possible
b. Automatic Termination. This BAA will automatically terminate, without any further action by the Parties hereto, at such time as there are no longer any Service Agreements by and between the Parties hereto.

c. Effect of Termination.
1. Except as provided in Paragraph 8(c)(ii) of this BAA, upon termination of this BAA for any reason, the Business Associate shall return or destroy all PHI received from the Covered Entity, or created or received by the Business Associate for or on behalf of the Covered Entity. This provision shall apply to all PHI that is in the possession of any subcontractor or agent of the Business Associate. The Business Associate shall retain no copies of PHI for its records.
2. Upon notice from the Business Associate that returning or destroying PHI is not feasible, the Business Associate shall extend the protections of this BAA to such PHI and limit further uses and disclosures of such PHI to those purposes that make the return or destruction infeasible, for so long as Business Associate maintains such PHI.

9. Indemnification. The Business Associate hereby covenants and agrees to indemnify and hold harmless the Covered Entity, its agents and representatives from and against any and all losses, costs, expenses, liabilities, claims, demands, judgments and its settlements of every nature that are actually incurred by the Covered Entity, including without limitation reasonable attorneys’ fees, which arise out of any use or disclosure of PHI not specifically permitted by this BAA.

10. Miscellaneous

a. Regulatory References. Any reference made herein to any provision of law or regulation shall be a reference to such section as in effect and as the same may be amended from time to time.

b. This BAA may not be amended except by a writing signed by both Parties hereto. Both Parties hereto agree that this agreement shall be amended to comply with any and all state or federal laws rules, or regulations, including without limitation any future laws, rules or regulations.

c. Any ambiguity in this BAA shall be resolved to permit the Parties hereto to comply with the Privacy Rules.

d. Successors and Assigns. This BAA and all rights and obligations hereunder shall be binding upon and shall inure to the benefit of the respective successors and assigns of both Parties hereto.

e. The respective rights and obligations of the Business Associate set forth in Paragraph 8 hereof shall survive any termination of this BAA.

f. All notices which are required to be given hereunder shall be in writing and shall be deemed to have been duly given (a) when delivered personally, (b) the next business day following the day on which the same has been delivered prepaid to a nationally recognized overnight courier service, or (c) three (3) days after sending by registered or certified mail, postage prepaid, return receipt requested, in each case to the address first set forth above to the attention of the person signing below, or to such other person at such other address as the Party may designate by giving notice.

g. In the event that any provision of this BAA is adjudged by any court of competent jurisdiction to be void or unenforceable, all remaining provisions hereof shall continue to be binding on the Parties hereto with the same force and effect as though such void or unenforceable provision had been deleted.

h. No failure or delay in exercising any right, power or remedy hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right, power or remedy hereunder preclude any other further exercise thereof or the exercise of any other right, power or remedy. The rights provided hereunder are cumulative and not exclusive of any rights provided by law.

i. Entire Agreement. This BAA and the Service Agreements constitute the entire agreement between the Parties hereto relating to the subject matter hereof and supersedes any prior or contemporaneous verbal or written agreements, communications and representations relating to the subject matter hereof.

j. Choice of Law. This BAA shall be governed, construed and interpreted in accordance with the laws of the State of South Dakota, without regard to such state’s conflict of laws provisions.

k. Counterparts, Facsimile. This BAA may be signed in two or more counterparts, each of which shall be deemed an original and all of which taken together shall constitute one and the same instrument. A copy of this BAA bearing a facsimile signature shall be deemed to be an original.

(2023.03.23 Vers Avel T&C)