#~~~~o Data Processing Services Agreement THIS AGREEMENT rs entered into and executed on the date set forth below, by and between Indigent Healthcare Solutions, Ltd. ("IHS"), having offices located at 2040 North Loop 336, Suite 304, Conroe, Texas 77304, and Perr County ("County") with administrative offices located at 700 Main Street __ Kerrville ______ _, Texas _78028_: WHEREAS, the Commissioners Court of the County has determined [hat a pub tic necessity exists to preserve, store, process, retrieve and organize certain data and information of [he County in order [o prevent material losses [o the County and to comply with the terms and conditions of the Texas Indigent Health Care and Treahnent Act, Texas Health & Safety Code, Subtitle C, Chapter 6] (the "Act"1; WHEREAS the Commissioners Court of the County has determined that it needs to contract for data processing services; and WHEREAS, the Commissioners Court of the County has determined that such data processing services would be best provided by IHS; and WHEREAS, IHSis willing to enter into this agreement upon the terms and conditions hereinafter set forth; NOW, THEREFORE, for and in consideration of [he premises stated above and of the mutual covenants, agreements, and promises hereinafter set fotth, and other good and valuable consideration, [he receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows: 1. AGREEMENTTO PROVIDE SERVICES The County agrees [o retain IHS as an independent contractor, and 1HS agrees to provide service to the County upon [he terms and conditions hereinafter stated. 2. TERM This agreement shall have an Initial Term of Two _ ( 2 ) years commencing on September] _______,2_006__, and continuing to and including September I_ __ _ , 2008 3. POST-EXPIRATION ASSISTANCE Upon [erminstion of this Agreement in par[ or in full by action of the terms herein or upon action of [he parties. IHS will assist in [he transferal of [he County's data tiles in the possession of 1HS pursuant to this Agreement, including conversion of such data [o an other data format usable by the County; provided, however, that use of such format does not violate the proprietary rights of IH 5 or any third party The County shall be responsible for reasonable fees ro and costs incurred by 1HS for such transferal or reformatting of data, at IHS' then-prevailing rates for time and materials, and any costs and expenses of associated travel, including reasonable per diem expenses. The County shall specify m writing to IHS what data records County desires to be converted, [he format requested, and the media on which the converted data is roquested to be written or recorded; provided, [ha[ IHS and County shall mutually agree on the data [o be converted,theformat of such converted data, and [he media on which such converted data shall be written or recorded. If this Agreement has been terminated under Section 6 on the basis that funds have not been appropriated, IHS shall have no obligation hereunder to provide such transferal or conversion assistance [o the County unless and until the County certifies in writing that funds nre available for such services from current sources and [he County [s committed [o pay IHS for such services from such current sources. The County shall be solely responsible for obtaining and far the costs of any applicable third party licenses that may be required to accomplish or permit the conversion [o the agreed format and using the agreed media. 4. AUTHORIZATION The County Judge of [he County certifies that all appropriate steps to legally enter into this Agreement have been taken on behalfof the County, tha[the maner has been approved by the Commissioners Court and that the terms of this Agreem em are understood and agreed by County. Moreover, [he County Judge certifies that all laws, rules and regulations as well as any local governmental rules were followed with regard [o acceptance of this contract and [hat this agreement meets all standards for governmental contracts. 5. BREACH, INVALIDATION OR EARLY TERMINATION This Agreement shall automatically terminate upon the occurzence of any one or more of [he following, whether or not notice is given to County, unless [H S in its sole discretion elects to continue to provide [he Services under the terms of [his Agreement: (i) any attempt or offer by County [o transfer, sublicense or assign, or any actual transfer, sublicense or assignment of, this Agreement, [he License Agreement, or any rights or obligations arising under either of these; (ii) because of any change in applicable law or regulation, or order of any court, regulatory agency or other instrumentality of government having jurisdiction and authority, which change or order has or likely will have the effect, as determined in the solejudgment of IHS, of substantially altering, or making impracticable IHS' performance of, [he material terms and conditions of this Agreement or the License Agreement; or (iii) any assignment or transfer, whether actual or constructive, by operation of law or lawful order, including but not limited [o a receiver or trustee in bankruptcy taking possession, or an assignment for the benefit of creditors. IIiS shall have [he right [o terminate this Agreement immediately upon [he material breach of this Agreement or of the License Agreement by County or any of its officers, elected officials, employees, agents or other representatives, by [he giving of written notice to County, stating [he reasons for such termination. [HS reserves the right immediately to terminate this Agreement if any claims for copyright or patent infringement, or infringement or misappropriation of imellectual property or intellectual property rights, or for unfair competition or trade practices, or other misuse, relating to the Programs or any par[ [hereof, are asserted against IHS, any relevant licensor of IHS, or [hc County or any of County's employees, officers, agents or representatives. Such determination shall be in [he sole discretion ofIHS. Termination on [his basis shall be effective on notice in writing to County by IHS, stating the reason for such termination. In the event oC such termination, IHS will make a good faith effort to assist County to arrange for substitute services; and IHS shall have the option, in lieu of such termination, to offer [u provide reasonable substitute services on terms and conditions (if differen[[han tiro se specified in this Agreement with regard to obligations of IHS other than as [o specific equipment, software and other materials) [o be agreed by the parties. The License Agreement shall terminate, without necessity of notice [o County, upon termination or expiration of this Agreement, unless otherwise expressly agreed in writing by IHS. If this Agreement is terminated or invalidated pursuant [o Section 6 (except as otherwise expressly provided in [his Agreement for termination under such section) or by County's breach, including but not limited [o breach of the terms of any software or other license applicable to equipment or software used or provided by IHS in providing [he Service, or invalidated by operation of law or lawful order, IHS shall have no duty to assist County as described by Section 3. In [hc event of termination for any reason prior [o the Expiration Date of the term hereof or any renewals thereof, IHS shall have the tight immediately to reclaim possession of its property, programs (including but not limired to the Programs specifically licensed in the Non-Exclusive License Agreement, Attachment B hereto ("License Agreement")), data, and related documentation or other support materials, and County shall have a duty to immediately return all such items and any and all copies ofsuch items in its possession or under its control [o IHS, and shall immediately re frai^ from using same. b. SUBJECT TO APPROPRIATION This Agreement shall continue in force as se[ forth in Paragraph 2 above, subject only [o [he following limitation: The obligation of the County to make payments under this Agreement is subject to annual appropriation by the CounTy in its budget of funds to make such payments. In [he event funds for this Agreement are or become unavailable due to non-appropriation, this Agreement will Thereupon terminate without penalty to or further obligation hereunder of either party, as of the last date for which funds have been appropriated; provided, that IHS Da[a Processing Scrv n:e Agreement x~~.uezauz:wrvna wzsos Page 2 of ]0 the County will remain responsible for costs and fees accrued hereunder for periods prior to such non- appropriation termination; and provided, further, that any assistance provided to County by IHS in the transferal of County data, including buT not limited [o any conversion or formatting of data, shall be provided by [HS under the provisions of Section 3,and County's obligation thereunder to paV for such services shall not be excused by reason of [he non-appropriation of funds for the Agreemenl as a whole. County certifies [ha[ i[ has available funds for payment of [his Agreement during [he initial fiscal year of the County in [he Initial Term hereof. Further, County agrees that it will notify IHS at leas[ ninety (90) days prior to the end of its fiscal year if it does not intend to make such appropriation for the coming fiscal year. If this Agreement is not terminated pursuant to this section, then on or before ten (10) days before the beginning of each County fiscal year during the applicable term hereof, the County shallprovide written certification [hat adequate funds have been appropriated by the County for the payment in full required under this Agreement for such fiscal year. 7. SERVICES During term hereof, IHS shall provide data processing services to the County and its various departments, as described in Attachment A hereto ("Scope of Serviczs and Schedule of Equipmen P') (the "Services"). IHS agrees to provide training to the Cu unty's personnel in the various County departments utilizing the Services hereunder, when, in the opinion of both parties, it will further [he in[zn[ of [his Agreement and facilitate and expedite the provision of the Services. IHS shall render the Services to the County as may be reasonably requested from time [o time by the County. The County acknowledges [hat during the term of this Agreement certain computer programs will be utilized or otherwise made available by IHS and that these programs (the "Programs"1 and their use by the County or on its behalf or far its benefit shall be governed by the Non-exclusive License Agreement attached hereto as Attachment B ("License Agreement"), which is hereby incorporated into this Agreement, and by other applicable terms of this Agreement. In the event of a conflict between the terms of this Agreement or any amendment hereto and the License Agreement as itmey be amended from time to time, the terms of the License Agreement shall control. Initial Installation of[he IHS Programs shall occur after an initial orientation of appropriate County personnel by Ili S, m be arranged as specified in Section 17.E below As contemplated in Sec[io^ 17.E, the initial orientation shall be at no additional charge to [he County if it is performed a[ IHS' offices in Conroe, Texas; but if County elects to have such initial orientation a[ another location, County shall be responsible for fees and reasonable costs associated with the provision of such orientation, a[ IHS' Ihen- prevailingtime and materials rates, including costs and expenses of IHS travel and reasonable per diem expenses. Initial Installation shall be performed at no additional costs to County. After Initial Installation, access and maintenance of[he Programs by IHS will be by remote access, for [he provision of which remote access County is responsible, as contemplated in Section 17.F below After Initial Installation, any [rips by IHS to [he installation site that maybe required shall be billed to County on a time and materials basis, including costs and expenses of IHS travel and reasonable per diem expenses, and County agrees [o pay such charges, costs and expenses. g. SPECIAL SERVICES IHS will from time to time provide the County with such special services or supplies outside the stated scope of the Services but related thereto as may reasonably be requested or approved by [he County, and for which special services funds have been appropriated, including but not limited to: special data entry services, such as conversion, program and test data keypunching, and other data entry; computer runs; or industrial or systems engineering services; provided, that the County and IHS agree upon the fees and costs therefor, that the County approves, in writing, payment for such special services, and certifies in writing that appropriated funds are available to pay for such special services. Special services shall include conversion, formatting or other handling of data to be maintained or utilized by IHS under [his Agreement, whether such data is provided [o IHS by County or on County's behalf by a previous or existing third-party County service provider, as maybe reasonable or necessap~. For emy custom programming (i. e., any programming or other services not identified in Attachment A) that is requested by County and which IHS agrees to provide, IHS shall provide County an estimate of [he time and materials, and any other anticipated costs and expenses I such as travel), likely to be reyuired to accomplish the requested custom programming, based on IHS' then- prevailingraces for such custom programming services. IHS Data Processing Service Agreement ae~.oez~oswrvsa-0~zsns Page 3 of 10 County shall have [Ire option [hereafter to have [he custom programming performed. Upon County providing a written certification tha[appropriated funds are available from current sources [o pay for such custom programming services, IHS shall perform such services. IHS shall bill County, and County agrees to pay, for the actual time, materials and other costs and expenses incurred i^ performing the custom programming, at IHS' then-prevailing rates. The County is responsible that its networks, databases and other records; its workstations or other computers or equipment of any kind used by County s[affor others to access, send, receive, print, write or record, manipulate, store, backup (see section 17.C), restore Isee section 17.C), or otherwise use (collectively hereinafter "Access") individually identifiable health information ("IIHI";also referred to as protected health information, "PHI"); its security and security procedures and controls, and Access and authorization procedures and controls; and any other relevant County functions or procedures co ^ceming such data or Access thereto, are compliant with the Heath Insurance Portability and Accountability Act ("HIPAA"), 29 U.S.C. §§ 1181, et seq., and all applicable regulatory rules or guidelines implementing HIPAA ("HIPAA Regulations") (both collectively "HIPAA" unless otherwise stated), as the statute or such regulatory rules or guidelines may be amended from time [o time, and including any successor statutes or regulatory rules or guidelines. IHS is providing the Programs on an °as is" basis. If additional equipment, software or other programming beyond [he Programs "as is" stems, or procedures are required so [ha[ the data processing services provided by IHS hereunder for the County may be achieve compliance with HIPAA, considering the County's network, operating systems, and equipment and [heir configuration, deployment and other characteristics, the County's program, applications and data access practices and procedures, staffing, Access and other security rules and procedures, or other relevant factors, comply with HIPAA, County shall be responsible for [he costs of compliance by IHS, on a time and materials basis at IHS' [hen-prevailing rates, and costs and expenses of any associated IHS travel, including reasonable per diem expenses. If IHS is requested [o provide assistance [o County [o respond to any request made under the Texas Public Information Ac[, IHS shall be compensated by County for any such assistance that is outside the scope of [he standard reporting speciFed in Attachm en[ A, on a time and materials basis at IHS' then-prevailing rates. 9. OW NERSH IP AND CONFIDENTIALITY The County's data files and the data contained therein shall be and remain [he County's property. All the existing data and data files of the County shall be returned [o it by IHS at the Expiration Date or upon earlier termination of this Agreement. The County's data shall not be utilized by IHS for any purpose other than that of rendering services to the County under This Agreement and will no[ be disclosed, sold, assigned, leased, or disseminated to third parties, by IHS, or commercially used or exploited by or on behalf of IHS, its employees or agents. 10. PROTECTION OF COONTY DATA IHS shall establish and maintain reasonable safeguards against the destruction or loss of [he County's data in the possession of IHS, which safeguards shall at least meet [he standards of safety maintained by [he County for like data. As provided in Section 17.C below, the County shall be responsible for daily and monthly backup of data. 11. MONTHLY FEES; INTEREST; TAXES Commencing September 1, 2006 and on [he first day of each succeeding month thereafter during the term of this Agreement or extension hereto, [he County shall pay to IHS at its office in Montgomery County, Texas, as advance monthly fees forthe Service, the sum of 1388.00 Dollars ($ ) (the "Monthly Fee"), except that the initial payment shall be for [he first and last month of [be term in advance, that is, shall be equal to twice [he Monthly Fee quoted in this section. I^ the event [he County elecm to add additional equipment or software, or [o request substitute equipment or software, during [he term of [he Agreement, IHS shall provide i[, subject to availability and there being appropriated funds certified by the County in writing and sufficient to cover associated additional or increased costs and fees associated with such ad d i [tonal o r repla cement eq uipm ent and software. IHS may requve an initial fee for [he costs of providing the requested additional equipment or software. The Monthly Fee applicable thereafter may beincreased by IHS as necessary m reflect any additional cost m IHS of providing, installing, maintaining, repairing and, as appropriate, operating each requested additional device and any associated software or licenses. Timely payment in full of fees and other costs when due is a material obligation of the County Payments are due within thirty (301 days of invoice by IHS IHS Data Processing Service Agreement xr,.uazaazswrvsa-uesns Puge 4 of 10 Amounts due and payable by County but not timely received by IHS shall accrue interest at the maximum rate permitted by law front the first day pas[ due until paid. County shall be responsible for any and all taxes or levies of any kind or character whatever [hat may be assessed or due on account of [he Services, except any receipts [axes or incometaxes of lHS If County claims exemption from any particular [ax or taxes, such as sales taxes, County must provide IHS with a copy ofthe applicable tax exemption certificate. 12. TERMINATION Except as otherwise provided herein for immediate termination by IHS, if the County defaults in any required payments to IHS, or fails to perform any other material obligation hereunder, IHS shall notify the County in writing of such default, including a brief statement of [he facts constituting the claimed default. If the County does not cause such default to be remedied within ten (101 days after receipt of such written notice, IHS shall have [he right to terminate this Agreement with no further written notice [o County, and without penalty [o LHS. Such termination for defau L[ will no[ relieve the County of its obligation to pay all fees and costs accrued or otherwise due and payable under this Agreement as of [he date of such termination; and shall not operate [o waive or diminish any other rights of IHS hereunder, or to obtain such other relief at law or in equity to which it may be entitled. If ]HS defaults in its obligations hereunder, County shall notify IHS in writing of such claimed default, including a statement of the facts asserted as the basis for such claimed default IHS shall have a reasonable time after receipt of such written notice to review the County's claim and respond to County with an estimate of [he time required [o cure the claimed default. IHS shall then cause such default to be remedied within [he estimated time. If timely cure is not made by IHS, the County shall have the right by further written notice [o CHS to terminate this Agreoment; provided, that such termination shall no[ operate to excuse County of payment for all costs and fees accrued hereunder pnor to such [emtination. Except as provided in [his Section and in Section 6, this Agreement shall not be cancelable by the County. 13. TIME REQUIREMENTS IHS is not required to devote its efforts exclusively [o [hc performance of [his Agreement, and IHS shall not he prohibited from engaging in other employment or transacting other business related to its field of endeavor and expertise. 14. INDEPENDENT CONTRACTOR The parties contemplate and intend that the relationship of IHS to County at all times during [he term of this Agreement and any extensions thereof shall be [ha[ of an independent contractor and not an employee of the County; and nothing in this Agreement or any license, document or attachment made a part hereof, nor any oral agreement, discussion or representation between the parties, shall be construed or applied to create any relationship between the parties other than [ha[ of IHS as au independent contractor. IHS shall provide its own personnel for the completion of its services hereunder and agrees [o properly insure them. Other than as may be expressly provided herein to the contrary, IHS is and shall be the sole and exclusive owner of any and all work product or intellectual property i[ may create or cause to be created for or in relation to its provision of [he Services to the County. 15. NOTICE Any notice required to be given hereunder shall be in writing, and shall be deemed delivered (i) three (3) business days after deposit in the U.S. Mail, postage prepaid, sent by registered mail, (ii) one (1) business day after being sent for overnight delivery by a reputable commercial courier, or (iii) upon hand delivery or receipt of facsimile transmission, to the address or facsimile number designated in this Agreement and to the attention of the person named herein as designated for receipt of notice by the receiving party, 'or to such other address, facsimile ^umber or person as the receiving party may designate in writing to the sending party from time to time. If [o IHS. INDIGEM HEALTHCARE SOLlJiI0N5 2040 Loop 336 -Suite 304 Conroe, Texas 77304 If to County: Hon. Pat Tinley Attn: Kerr County Judge 700 Main Street Kerrville, Texas 78028 [HS Data Processing Service Agreement a~aaaswmwrvaa minus Page 5 of 10 16. SITE ENVIRONMENT; COUNTY LIABILITY FOR DAMAGE TO EQUIPMENT OR SITE ENVIRONMENT The County shall provide a suitable installation and operation environment Ithe "Site Environment") for the computers and other equipment utilized by IHS in connection with this Agreem en[, in accordance with the applicable equipment manufacturer's requirements, a copy of which is available to the County upon request, and with any other requirements specified in Attachment C hereto ("Statement of Site Environment Requirements and Acknowledgment of Responsibility for Site Environment"). In the even[ the County does not provide or maintain the required Site Environment at any time during [he term of this Agreement or any extensions thereof, IHS is authorized a[ its sole option either to tem~inate this Agreement by giving ten (I O) days written notice, or [o take such steps as may be reasonable or necessary under [he circumstances, as determined by IHS in its sole judgment, to provide, restore or maintain [he Site Environment, and the County shall reimburse IHS for all incurred costs of such provision, restoration or maintenance of the Si[e or any substitute Site. If the County's officers, employees, or other agents or representatives misuse or in any way abuse or damage, by negligence or otherwise, equipment, software or documentation provided or operated by IHS in providing the Service, the County will be responsible for all costs associated with repair or replacement, as such repair or replacement is determined by IHS in its sole discretion to be needed or appropriate. In [he even[ [HS provides computers or other equipment instilled a[ a location on County property, then County will provide insurance coverage for loss or damage of such equipmcn[ and software, or related documentation, and also shall be responsible for aIL costs associated with repair or replacement. No[withsmnding the County's financial responsibility for any such repairs or replacements called for in this section, IHS shall be and remain [he owner of such equipment, software, documentation and associated licenses. Prior to the installation or operation of any computer egmpment and related software by LHS for the provision of the Services, the County will execute a copy of Attachment C which is hereby incorporated into this Agreem en[. 17. COUNTY ASSISTANCE The County agrees to cooperate fully with IHS in [he provision of the Services, and to make personnel available for the purpose of installation and training. Failw~e by County to make reasonable efforts w facilitate IHS' delivery of the Services shall not be a basis in whole or part for alleging non-performance by IHS. The following is intended [o supplement and clarify the obligation of County to provide reasonable assistance to LHS in its provision of the Service, but in no way to Limit or waive County responsibilities elsewhere stated or implied in this Agreement. A. County agrees [o appoint a Site Coordinator and to notify IHS of such appointment in writing within seven (7) days of executing this Agreement The Site Coordinator shall be IHS' contact person for providing the Service and for administering [he License Agreement, and shall be responsible for coordination between the County and lHS pertaining to the Service, including but not limited to coordination and prioritization of day-to-day services by IHS and County requests for services or special services. B. County will make reasonable efforts to ensure that appropriate persons from al] affected County offices and departments will attend any applicable training sessions. It shall be the responsibility of the Site Coordinator [o announce and otherwise communicate to County's personnel information and notices concerning applicable scheduled training and installation, maintenance, or repair activities. C. The County shall be solely responsible to provide daily and monthly backup of all data. IHS initially will provide seventee^ (17) data [apes suitable for such backup, includiug five (5) tapes For daily weekday backup, and twelve (12) tapes for individual monthly backup. After the first twelve months„ the County will purchase and use new tapes for each succeeding twelve-month period or part thereof to ensure the reliability of the [apes in use; and the County will retain [he old [apes as needed [o maintain backup data for [he prior year. The parties agree this approach will be the most appropriate to ensure that PHI data will be suitably protected and preserved. It will be the County's responsibility to ensure that daily and monthly backups are timely performed and have integrity; that the IHS Data Processing Scrvice Agreement ae~.uozauz.wrvse-nizsos Page 6 of 10 E. backup [apes are properly stored and maintained; and that [he rotation of weekly and monthly [apes occurs in proper order and that stored backup data is no[ inadvertently or prematurely over-written or erased. The County will be responsible for any costs associated with the acquisition, installation or operation of backup equipment or software, and for any costs of restoring data. !HS will not be responsible or [iab(e in env way for loss of data or compromise of data quality or acetone}~ caused in wdto/e or pmt by the failure of [he County properly ro perform backup or jor Ihejailure of integrity afsuch backup da la or topes. County shall cooperate tully with IHS in efforts by 1HS [o maintain any copyrights, trademarks or service marks, patents, trade secrets or other intellectual property or proprietary information rn [he Programs or other materials, equipment, software, or data provided or utilized by IHS in provision of the Services hereunder, including but not limited [o directly assisting IHS as IHS may reasonably request, and in taking al] actions and executing all documents necessary to the reasonable efforts of [HS [o maintain and protect such intellectual property Failure of County [o provide such assistance shall constitute a material breach of this Agreement. Initial Installation of the Programs shalt occur after an initial orientation of appropriate County personnel by IHS. IHS offers an initial orientation to County at its offices in Conroe, Texas, without additional charge. If County chooses to have the initial orientation a[ another location, it shall cooperate with IHS to schedule the orientatio^ eta ntumally convenient time and location, and County shall reimburse IHS for costs and expenses incurred by IHS personnel in travel to and from such other location, including without limitation, travel costs and expenses and reasonable per diem expenses, and shall pay IHS a reasonable fee, at IHS' then-prevailing rates for time (including [ravel) and materials, for such orientation services. In order that IHS may provide remote support and maintenance, County shall be responsible Cor providing, at County's expense, suitable remote electronic access for IHS to the Programs, [he server on which they are installed, and the applicable County network, including providing suitable access equipment as may be necessary, and any assistance that may be required from time to time to accomplish such access. For the purposes of [his provision, unless otherwise expressly agreed by IHS in writing, `suitable remote electronic access" shall mean remote access using "suitable access equipment." and with the cooperation and assistance of County. The parties agree that a virtual private network ("V PN"), if available, would be [he preferred method for such IHS remote electronic maintenance access because i[ would provide the currently most assured secure access considering HIPAA requirements and [he confidential nature of health care data, including PHI. Thus, for [he purposes of this provision, "suitable access equipmenC' shall mean, at a minimum, provision by County of a Web port, an FTP port, and a Telne[ port, for the use of IHS, and, if prac[icab le for County [o provide, also a virtual private network accessible by IHS. If County fails or refuses for any reason to provide suitable remote electronic access to IHS including suitable access equipment, County agrees [hat i[ shall be responsible for paying, and shall pay, service fees and costs for any services provided by IHS [hat require on-site access by IHS, at IHS then-prevailing rates for time (inoluding travel time) and materials, and including costs and expenses of travel for IHS personnel providing such services. Each year, IHS holds an annual Customer Advisory Committee meeting. Al] customers of record are invited and are strongly encouraged to attend. (Attendance is at the client's expense.) Software performance is discussed, new software features and/or enhancements are demonstrated, and clients are asked to iden[i fy any improvements, modifications, or enhancements they may desire. Based on the clients' interests and priorities of those in attendance, IHS identifies improvements, modifications and/or enhancements it will seek to make to the IHS Programs over the next year. Such improvements, LHS Data Processing Service Agreemeut s~.onamzwrvss.mzsus Page 7 of l0 modifications and/or enhancements will be provided in new software releases. H. Counry agrees to provide IHS with suitable workspace at or near [he Site, including appropriate furnishings and the use of a telephone. 1R. ASSIGNMENT This Agreement shall be binding upon [he successors and assigns of each party. Other than IHS' granting a Uniform Commercial Code security interest [o a third party lender in the accounts receivable/contract rights to receive money under [his Agreement and in any equipment, software or other materials furnished by IHS [o County, or an assignment or transfer by IHS of all or substantially all of IHS' business or assets [o a third party which expressly agrees to assume [he duties and responsibilities ofthis Agreement, neither party may assign all or any of its rights or obligations hereunder without the express written consent of the non-assigning party. 19. ENTIRE AGREEMENT This Agreement is the entire agreement between the parties concerning the subject matter hereof, but may be amended from time to time only by a writing duly executed by both parties. 20. APPLICABLE LAW; VENUE This Agreement shall be construed under the laws of the State of Texas, its choice of laws provisions excepted, and the invalidity of any portion shall no[ invalidate [he remainder of [he agreement, but such remainder shall be given full force and effect if practicable. Jurisdiction and venue shall lie exclusively in the state district courts of Travis County, Texas, or [he federal district courts of [he Western District of Texas, Austin Division. 21. INDEMNITY TO THE EXTENT PERMITTED BY LAW, COUNTY SHALL INDEMNIFY AND HOLD IHS HARMLESS FROM ANY AND ALL CLAIMS, SUITS AND PROCEEDINGS OF ANY KIND OR CHARACTER (HEREIN, "CLAIMS"), INCLUDING BUT NOT LIMITED TO CLAIMS REPRESENTATIVE (HEREIN, ALL COLLECTIVELY "COUNTY PERSONNEL"), OR ANY PERSONS AUTHORIZED OR PERMITTED BY COUNTY TO BE PRESENT ON THE SITE OR TO USE OR ACCESS ANY EQUIPMENT, SOFTWARE OR ASSOCIATED DOCUMENTATION PROVIDED BY IHS OR OTHERWISE USED BY IHS IN THE PROVISION OF THE SERVICE (COLLECTIVELY, "COUNTY GUESTS"), OR ANY IHS PERSONNEL),ARISING IN W }TOLE OR PART FROM ANY ACT OR OMISSION BY COUNTY OR ANY COUNTY PERSONNEL OR COUNTY GUESTS; provided, [ha[ the County shall have no obligation hereunder [o IHS for any third party Claims of intellectual pro per[y infringement either (i) arising from use by County Personnel or Guests of equipment or software provided by IHS for provision of [he Services, where the acts of such County Personnel or Guests are in strict accord with the terms of this Agreement, including fu^ compliance with the terms of any third party or IHS licenses applicable [o such equipment or software, or (ii) for acts or omissions of1HS or IHS personnel. 22. INTELLECTUAL PROPERTY RIGHTS RETAINED; CONFIDENTIALITY; OPEN RECORDS REQUESTS No rights [o use or possess any intellectual property of IHS or any third party are granted or transferred [o the County by this Agreement except as expressly provided herein or in any license agreements expressly made a part of this Agreement. Each party shall keep strictly confidential the proprietary or other contidential information of the other that may be acquired or provided in the course of performance of this Agreement. Each party shall promptly notify the other in writing of any discovered compromise of such confidentiality. COUNTY SHALL USE UTMOST CARE TO ENSURE THAT NO UNAUTHORIZED COPIES OF OR ACCESS TO SOFTWARE AND OTHER INTELLECTUAL PROPERTY PROVIDED BY [HS IN THE PROVISION OF THE SERVICE IS OBTAINED BY UNAUTHORIZED PERSONS. CONCERNING PROPERTY DAMAGE, PERSONAL INJURY OR DEATH, OR COUNTY SHALL IMMEDIATELY INFORM IHS INFRINGEMENT OF INTELLECTUAL IN WRITING OF ANY REQUEST UNDER THE PROPERTY, ASSERTED AGAINST IHS BY ANY TEXAS PUBLIC INFORMATION ACT ("TPIA") PERSON (INCLUDING ANY THIRD PARTY; OR FOR INSPECTION OA COPYING OF ANY ANY COUNTY OFFICER, OFFICIAL, INFORMATION, DATA, SOFTWARE OA OTHER EMPLOYEE.. AGENT OR OTHER INTELLECTUAL PROPERTY OR MATERIALS IHS Data Processing Service Agreement aeanezanz. wrvxo.ui uns Page 8 of 10 OF IHS OR ANY OF ITS SUPPLIERS BEING USED IN THE PROVISION OF THE SERVICE OR OTHERWISE LICENSED TO COUNTY BY IHS, AND SHALL TIMELY INITIATE THE REVIEW PROCESS OF THE TEXAS ATTORNEY GEN EARL UNLESS EXPRESSLY RELEASED IN WRITING BY IHS FROM THIS OBLIGATION. In the even[ that disclosure is ultimately required, licensee shall provide, along with access to or any copies of such disclosed materials, a written notice to the recipient that the materials are owned by or licensed to IHS, and are protected by the federal Copyright Ac[; that recipient is no[ by virtue of disclosure under [he TPIA [hereby authorized to use, copy, or disseminate the materials without the express written consent of [HS, and that any unauthorized us'e. copying or dissemination may constitute a violation of federal co pyrigh[ or other laws, and could therefore subject [he recipient to civil or criminal penalties. THIS IS A MATERIAL OBLIGATION OF THE COUNTY, AND ANY FAILURE OF THE COUNTY TO COMPLY, FOR WHATEVER REASON, IS GROUNDS FOR IMMEDIATE TERMINATION BY IHS OF THIS AGREEMENT AND AN S' ASSOCIATED LICENSES. 23. DISCLAIMER OF WARRANTIES; NO IMPLIED WARRANTIES IHS EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES NOT EXPRESSLY PROVIDED tN THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR WARRANTIES OF FITNESS OF USE FOR A PARTICULAR PURPOSE. IHS MAKES NO REPRESENTATIONS REGARDING THE PERFORMANCE OF OR FITNESS FOR USE FOR ANY PURPOSE OF ANY EQUIPMENT OR SOFTWARE EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT. NO ADVICE OR REPRESENTATIONS B5' IHS OR IHS PERSONNEL SHALL CREATE ANY SUCH WARRANTY IHS DOES NOT MAKE ANY W AARANTY THAT THE SERVICE W[LL BE ACCURATE, UNINTERRUPTED ORERAOR- FREE; AND IN PARTICULAR DOES NOT W'ARRANT THAT ANY INFORMATION, DATA, SOFTWARE OA EQULPMENT USED TO PROVIDE OR ACCESSIBLE THROUGH THE SERVICE WILL BE AT ALL TIMES FREE OF VIRUSES, WORMS. TROJAN HORSES OR OTHER HARMFUL COMPONENTS. COUNTY IS SOLELY RESPONSIBLE FOR THE ACCURACY OF ANY AND ALL DATA THAT IS THE SUEJECT MATTER OF THE SERVICES, AND IHS MAKES NO REPRESENTATIONS OR WARRANTIES ABOUT SUCH DATA. 24. DISCLAIMER AND LIMITATION OF LIABILITY NEITHER IHS NOR ANY OF ITS OFFICERS, EMPLOYEES, AGENTS OR REPRESENTATIVES SHALL BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR EXEMPLARY DAMAGES THAT RESULT OR ARISE FROM COUNTY'S USE OF THE SERVICE. THE COUNTY'S SOLE REMEDY FOR BREACH OF THIS AGREEMENT BY IHS SHALL BE TERMINATION AS PROVIDED IN SECTION ]2 HEREOF. 25. FORCE MAdEURE IHS shall no[ be responsible for performance hereunder, and its obligation [o perform the Services shall be suspended, for [he duration of any events of force majeure, including but not limited to: Acts of God including fire, explosion, storm and other weather events; cable or power outages, cable cuts or other loss of necessary connectiviTy, including failure of networks; failure or loss of any third party supplies, or termination or recision of any third party licenses necessary for [he provision of the Services; terrorism, vandalism, sabotage, [heft of components, hacking or other interference with software or operating system or network operations, including worms, viruses, Trojan horses or other harmful agents, or interference with, alteration or destruction of County data; any action, law, order regulation, directive, or request of the United States government or of any state or local government, or of any agency, commission, court, regulatory body or other instrumentality of such government, or of any civil or military authority; war, national emergency or civil insurrection, riot or other civil disorder; strike, work stoppage or lockout; or any other event outside the control of IHS or its reasonable ability to have avoided ur prevented; and such excuse by reason of force majeure shall last until IHS by the exercise of reasonable diligence might remove, avoid or otherwise cure such impediment. 26. NO WAIVER OF RIGHTS No term ur provision of this Agreement shall be deemed to be waived and no consent to any breach or defatdt shall be deemed unless such waiver or consent IHS Data Processing Service Agreement Heeu62ao2.wNa:..mzsns Page 9 of Ill be in writing signed by the party against which such waiver or consent is asserted; [he terms of this Agreement shall no[ be deemed [o be amended by any such waiver or consent unless in a writing expressly stating such amendmem; and any waiver by either party, whether express ur implied, shall no[ imply a consent or waiver of any term or provision on any other occasion, or any consent [o any different breach or d efault. 27. LIMITATIONS; ATTORNEYS FEES Any claim concerning dre performance of any provision of [his Agreement must be brought within one I t 1 year of [he occurrence of the event, whether ac[ or omission, complained of, or be barred. In any action or proceeding to enforce any terms or provisions of this Agreement, [o obtain equitable relief (including injunction), or to collect damages, the party prevailing shall be entitled [o recover from [he other all applicable costs of suit or settlement, including but not limited to filing fees, court costs, expert fees, costs of AD R, and reasonable attorneys fees. 2S. CONSTRUCTION Descriptive headings or captions in this Agreement are for convenience only and shall no[ affect the construction or application of [his Agreement. Words having established technical or trade meanings in the industry shall be so construed. Listings of items shall no[ be exclusive unless expressly so stated, but shall include other items, whether similar or dissimilar to [hose explicitly listed, as the context reasonably requires. No rule of construction requiring interpretation against [he drafring party shall be applied or given effect. Words of any gender used herein shall be deemed to include words of any other gender; and use of the singular or the plural herein shall include the other, unless context requires otherwise. APPROVALS IN WITNESS WHEREOF, we have executed this Agreement as of [he ____ day of__ _________, 20___. COUNTY ~S BY: BY: NAME PRINTED: Hon. Pat Tinley NAMEPRINTED: Robert Baird TITLE: COUNTY JUDGE DATE: / / ~ - ~'~JT~ !~ TITLE DATE President G IHS Data Processing Service Agreement sc.~.on:au~swrvsa~asos Page 10 oC 10 ATTACHMENT B TO DATA PROCESSING SERVICE AGREEMENT NONEJ~CLUSIVE LICENSE AGREEMENT Indigent Healthcare Solutions ("IHS"), with offices located at 2040 North Loop 336, Suite 304, Conroe, Texas 77304, for good and valuable consideration, hereby grants aroyalty-free, non- exclusive, limited license ("License") to: Kerr County (LICENSEE NAMEI Kemille, Texas 78025 (CITY, STATE, ZIP CODE1 ("Licensee") to use certain software programs and related materials ("Programs") for the designated processing system identified in the attached Schedule A, subject to the terms and conditions hereof. Progmms shall include executable modules for each software program identified in any Schedule to this Agreement, one (1) set of user's manuals and related documentation, in machine readable or printed form. SCHEDULE A LICENSED PROGRAM QUANTITY MONTHS LICENSE FEE INSTALLATION LOCATION Indigent Health Care 2 Users 24 Months $1388.00 Kerr County LICENSEE ACKNOWLEDGES THAT LICENSEE HAS READ THIS Sign~xl: ^ LICENSE AGREEMENT, UNDERSTANDS TT AND AGREES TO BE BOUND BY ITS TERMS AND CONDITIONS. L]CENSEE FURTFIER AGREES THAT THIS AGREEMENT IS THE COMPLETE AND _ EXCLUSIVE STATEMENT OF THE LICENSE AGREEMENT -"j-Ion. Pat Tinley BETWEENIHSANDTHG LICENSEEASCONCERNSTHE LICENSE OF THE PROGRAMS AND NU VARIATIONS Ilv THE TERMS AND [print name] CONDITIONS OF TEAS AGREEMENT SHALL HAVE ANY EFFECT THIS UNLESS AGREED TO IN WRITMG M ADVANCE BY iHS ~J . Dale: / I ~"~ v AGREEMENT SUPERSEDES ANY PROPOSAL OR PRIOR AGREEMENT, ORAL OR WRITTEN, OR ANY OTHER COMMUNICATION BET WEEN IHS AN D LICENSEE RELATMG TO THIS LICENSE AGREEMENT For Official Usc ONLY Itcv U5R611LCw N]C'6cno- ONO]l~ 1 TERMS AND CONDITIONS 1, LICENSE Licensee acknowledges that it shall be a licensee of IndigenT Healthcare Solutions ("IHS") under the terms and conditions of this License Agreement, and drat Licensee obtains hereby only anon-exclusive, limited license to use the Programs. Title and all ownership and intellectual property rights in [he Programs licensed under this License Agreement remain with IHS and do not pass to Licensee in whole or any par[. Licensee acknowledges that the Programs contain valuable proprietary information and trade secrets, the unauthorized disclosure of which would cause competitive and actual harm [o IHS. For the purposes of [his License, the term "Programs" shall include, any and all software or other intellectual property licensed for use by Licensee hereunder. as identified in Schedule A hereto, including also any and all documentation or other materials in whatever form and on whatever media stored, that describe, relate to or concern the Programs. Licensee may no[ transfer the Programs electronically from one computer to another over a network or by other means, or access and use the Programs by remote means other than as expressly authorized herein; and [he Programs may be installed on only one f 1 I computer or server at any given time. Licensee is licensed to use [he Program so]ely for [he internal purposes of its own business. Licensee agrees that Licensee will not perm i[ the Programs to be used either directly or indirectly by Licensee's employees or any other person or entity through a timesharing service, service bureau arrangement or otherwise. Licensee may not grant sublicenses or other rights in the Programs to others, or uss ign or transfer [his license to any third party. Licensee may no[ grant, allow m' provide access [o the Programs ro, or use of the Programs by, unauthorized third parties. Licensee shall comply strictly with the provisions of any IHS or third party license or other agreement regarding or applicable to any third party intellectual property, including without limitation applications, operating systems, or other software of any kind, or documentation thereof, utilized by Licenseein its use of the Programs, or by 1HS in [he provision of any services ru Licensee related to or depending on the Programs. IHS shall have the right immediately to terminate this License if Licensee violates any of its provisions. Licensee recognizes and agrees [ha[ [he Programs and all portions, reproductions, modifications and improvements thereof, whe[herprovided to Licensee by IHS or by any third party, (i) are considered by IHS to be confidential and trade secrets; (ii) are provided to Licenseein snidest conSdence; and (iii) are and remain the exclusive property and proprietary information of 1HS. Title and full ownership rights, including copyrights or patents, in the Programs and any modifications or improvements provided or developed by IHS or on its behalf are and shall remain [he sole property of IHS or, if licensed to IHS, of the relevant licensor as [he relevant license may provide; and Licensee acquires no ownership, rights, title or other interest in or to the Programs hereunder other than as expressly provided. Licensee is not granted the right to create derivative works [o the Programs; but any and al] derivative works of the Programs, if and by whomever created, shall be the sole property of IHS or IHS' licensor, as the case may be. Licensee agrees not remove or destroy any copyright, trademark, patent, or other designations or notices, or other proprietary or confidential legends or markings placed upon or contained within the Programs, or from any copies [hereof. 2. TERM This license shall be in effect From [he date of execution of the associated IHS Da[a Processing Services Agreement until termination of Iha[ Services Agreement, or until termination of this License as sped ficd herein, whichever is earlier, unless otherwise expressly agreed in writing by IHS. Upon termination or expiration of this License on any basis, all rights of Licensee and obligations of IHS hereunder shall immediately terminate. Licensee shall nonetheless have a continuing obligation to maintai^ [he con fi dentiality of IHS' proprietary information, [o return or destroy al] copies of the Programs as required herein, to indemnify IHS as provided hereunder, and [o pay any fees or costs accrued and owing hereunder or under the Servi ees Agreement as of such termination. 3. PA1'M ENTS All license fees and any firs[ year support fees, along with any installation and training fees, whether IHS License Agreement aev uGZao^sw~Vlclieni-osu~ua Page 2 of 7 specified herein or in an associated contract for services by IHS, shat) be paid to IHS upon mutual execution of this License Agreement Any othersums due hereunder shall be payable within ten (101 days of Licensee's receip[of IH S'invoice therefor. Any pas[due amounts shall bear interesT from the date when due until paid at the highest rate allowable by law. All payments due hereunder shall be made in lawful money of the United Slates of America, and shall be made to IHS at its address specified above or at such address as may from time to time be designated by LHS i^ writing. !n addition to the fees, charges, expenses and other amounts due and payable under this License Agreement, Licensee shall pay any and all local, state, federal, and other sales, use, excise, privilege or gross receipts taxes and duties, tariffs, assessments or levies, however designated, assessed or levied, resulting from this License or any activities conducted hereunder (exclusive of taxes based on ]HS' net incomeh provided, that if Licensee claims legal exemption from any fax or taxes, such as sales tax, it shall promptly provide IHS with a copy of the applicable tax exemption certificate. J. SECURITY' AND CONFIDENTIALITY; NO REPRODUCTION; RIGHT TO INJUNCTIVE RELIEF Licensee shall take all reasonable steps necessary to ensure that the Programs, or any portion thereof, that are stored, written or recorded on magnetic tape, disk or memory or in any other form, are not made available by [he Licensee or by any of its employees, agents or representatives [o any organizations or individuals not licensed hereunder to make use [hereof. Licensee recognizes [he proprietary nature of the Programs and agrees as follows: a. To use the Programs solely a[ the place of installation specified in [his License Agreement. b To make ^o copies or duplicate the Programs or any component thereof by any means for any purpose whatsoever without prior written consent of IHS, except as may reasonably be required for archival or security storage purposes. c. To instruct its employees having access to [he Programs not to copy or duplicate [he Programs and not [o provide same to any third party, and to enforce these requirements, d. To effect security measures that arc reasonably calculated [o safeguard the Programs from [heft or unauthorized access. e. To maintain and reproduce IHS' copyright notice and any other notices, legends or designations on all materials or copies related to or patt of the Programs on which IHS displays such copyright orother no[ice, legend or designation, including any copies made pursuant [o this License Agreement. f. Licensee shall no[ copy, reproduce, reverse assemble, reverse compile, compare, modify, merge, transfer or distribute the Programs or attow any other person to do so in any way or manner withoutthe priorwritten authorization of IHS g. CONSENT TO INJUNCTION AND WAIVER OF LEGAL RIGHTS Any modifications or enhancements to the Programs, or any other Program-related material provided by IHS [o [he Licensee, shall be subject to all conditions and restrictions contained in this Agreement. Licensee acknowledges that IHS has gone to considerable time, [rouble and expense to develop the Programs and that IHS would suffer great and irreparable harm and damage, including competitive disadvantage, by any unauthorized copying, rcprod action, dissemination, or other unauthorized use of the Programs. Licensee further acknowledges that such action may cause significant commercial damages to IHS which may be difficult or impossible to quantify. Therefore, Licensee agrees that, in addition to any other legal or equitable remedy available [o IHS, IHS shall be entitled to equitable relief including but not limited to temporary restraining orders en[e red without notice to Licensee or a prior oppormniTy for Licensee to defend, and preliminary and permanent injunctions, to compel strict compliance with the terms of this License, Licensee hereby expressly waives any right it may have to require IHS [o post a bond or other security as a prerequisite to obtaining equitable or legal relief, or to request to a court of competent jurisdiction that a bond be imposed for any such relief. Licensee also waives any right [o proof of actual or impending actual damage as a prerequisite [o IHS obtaining equitable relief. 5. LIMITATION OF LYABILITY IHS' liability for damages to Licensee, its employees, officers, elected officials, agents or representatives for any cause, claim or action of any kind or character IHS License Agreement kev. n62JO2swN]cliem-oemos Page 3 of 7 whatsoever related to [his License or arising from or related to the use of the Programs by or on behalf of Licensee, and regardless of the form of action, whether in contract or in tort including negligence, shall be strictly limited. This limitation of liability will tru[ apply to claims for paten[ :and copyright infringement. Notwithstanding anything herein to [he contrary, in no event will IHS be liable for any last profits, lost savings, or other actual, speciah incidental or consequential damages, or for punitive or exemplary damages, even if IHS has been made aware of the possibility of such damages, or for any claim against Licensee, its employees, officers, elected officials, agents or representatives by any other parTy, arising or made in connection with [he delivery, installation, testing use, performance or nonperformance of the Programs, or any actor failure to act of I}f S, arising out of, related to or in connection with the delivery, installation, testing, use, performance or nonperformance of the Programs, or IHS' performance or nonperformance under or related to [his License Agreement. 6. TERMINATION Upon termination of [he License for any reason, Licensee shall promptly uninstall, delete or otherwise permanently remove all copies of the Programs from any and all oomputers and storage devices on which a copy may reside (hereinafrer, "delete"); and deliver to IHS all copies of the Programs including all materials related thereto that are in Licensee's possession or under its control, whether provided by IHS hereunder. or copied or created by Licensee or its employees, agents or representatives. in whatever form made, recorded or stored, together with all portions, reproductions, and modifications thereof, pertaining to the Programs; and shall also warrant to [HS that all copies [hereof have been destroyed or returned w IHS as required hereunder. Within ten (]0) days of request by IHS, Licensee shall certify in writing to IHS that, to the best of Licensee's knowledge, the original and all copies, in whole or part, of the Programs including all related materials and copies have been deleted, destroyed or returned [o IHS. In addition, all documentation, listings, notes or other written material pertaining to [he Programs shall be retuned to IHS or deleted or destroyed and so certified. IHS shall have the ngh[ to terminate this License Agreement, by giving written notice of such termination to Licensee, in the event that the Licensee (i) fails to pay IHS in full any sums due and payable hereunder within ten (l0) days after their due date, (ii) fails [c comply fully with any of the Licensee's obligations hereunder with respect [o proprietary information or confidentiality, or (iii) fails to perform or comply fully with any other material term or obligation set forth in this License Agreement. IHS' right of termination shall be in addition to any other right or remedy it may have at law or in equity. This License shall immediately and automatically terminate upon any offer or attempt of Licensee to: assign, sublicense or otherwise transfer i[ in whole or part, or any rights granted hereiq to any third party, or to assign, condition or avoid any obligations imposed herein, without [he express written consent of IHS, or upon any such assignment or transfer, condition or avoidance, or righ[or option [hereto, ofany kind, actual or cunstructive, whether by operation of law, lawful order or otherwise, including without limitation appointment of a receiver or a trustee in bankruptcy or an assignment in favor of Licensee's creditors. IHS reserves the right immediately [o terminate this License if any claims for copyright or paten infringement, or infringement or misappropriation of any intellectual property rights, or for unfair competition or trade practices or other misuse, relating to the Programs or any part thereof, are asserted against IHS, any relevant IHS licensor, or Licensee or any of Licensee's employees, officers, agents or representatives. Such determination shall be in [he sole discretion of IHS. Termination on this basis shall be effective on notice in writing to Licensee by IHS, stating the reason for such termination. 7. NO WARRANTY IHS PROVIDES THE PROGRAM TO LICENSEE "AS IS". IHS MAKES NO WARRANTIES EITHER EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER, INCLUDING, WITHOUT LIMITATION, THE CONDITION OR FUNCTIONALITY OF THE PROGRAMS, THEIR MERCHANTABILITY, OR THEIR FITNESS FOR USE FOR ANY PARTICULAR PURPOSE. IHS DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED OR PROVIDED IN THE PROGRAMS W[LL MEET THE LICENSEE'S REQUIREMENTS OR THAT THE OPERATION OF THE PROGRAMS WILL BE UNINTERRUPTED OR ERRORFREE,OR THAT THE PROGRAMS OR THEIR OPERATIONS OR OUTPUT PRODUCTS OR FILES WILL BE FREE FROM VIRUSES, WORMS, TROJAN HORSES OR OTHER HARMFUL AGENTS. IHS DOES NOT WARRANT, AND EXPRESSLY IHS Liceuse Agreemem are n6zao2swN9c6eni-osn~na Page 4 of 7 DISCLAIMS, ANl' AND ALL RESPONSIBIL1Tl' FOR THE ACCURACY OF ANY INFORMATION OR DATA PROVIDED BY LICENSEE FOR USE WITH OR BY THE PROGRAMS. OR ON WHICH THE PROGRAMS OPERATE. 8. INDEMNIEICATLON IHS agrees to indemnify Licensee and [o hold i[ harmless from any damages finally awarded as result of any claim of infringement of a United States patentor copyright asserted against Licensee by reason of Licensee's authorized use of [he Programs as delivered by IHS, provided, [hat IHS is given prompt notice by Licensee in writing of any such claim and [he right to defend or settle, at IHS' expense and in its sole discretion, any such claims; and further provided, that Licensee fully cooperates with IHS in connection with [he defense or settlement of such claims. IHS shall not be obligated [o defend such claims but may do so at its sole election. TO THE EaTENT PERMITTED BY LAW, LICENSEE AGREES TO INDEMNIFY AND HOLD HARMLESS [HS, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND REPRESENTATIVES, AND ITS THIRD PARTY LICENSORS, IF ANti', WHICH PROVIDE OR LICENSE TO IHS ANY SOFTWARE OR OTHER PRODUCTS OR MATERIALS USED BY (HS IN THE PROVISION OF THE SERVICES CALLED FOR IN THE ASSOCIATED DATA PROCESSING SERVICES AGREEMENT, OR LICENSED HEREUNDER B7' IHS, FOR ANY AND ALL CLAIMS OF INTELLECTUAL PROPERTY INFRINGEMENT, INCLUDING BUT NOT LIMITED TO COPYRIGHT, TRADEMARK,OR PATENT INFRINGEMENT,OR FOR UNFAIR COMPETITION, OR FOR MISAPPROPRIATION OA UNAUTHORIZED DISCLOSURE OF TRADE SECRETS OR OTHER PROPRIETARY OR CONFIDENTIAL INFORMATION, WHERE SUCH CLAIM, IN WHOLE OR PART, ARISES FROM OR IS ASSERTED TO BE A RESULT OF THE ACTS OA OMISSIONS OF LICENSEE, ITS OFFICERS, ELECTED OFFICIALS, EMPLOYEES,AGENTS UR OTHER REPRESENTATIVES,AND WHERE SUCH ALLEGED ACTS OR OMISSIONS DO NOT COMPLY STRICTLY WITH, OR ARE INCONSISTENT WITH, THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT, OR WITH THE TERMS AND CONDITIONS OF ANl' IHS OR THIRD PARTY LICENSE OIL OTHER AGREEMENT APPLICABLE TO INTELLECTUAL PROPERTY UTILIZED BY LICENSEE 1N [TS USE OF THE PROGRAMS, OR UTILIZED BY IHS IN THE I'ROVIS ION OF SERVICES TO LICENSEE RELATED TO OR DEPENDENT ON THE PROGRAMS. FOR THE PURPOSES OF THIS PROVISION, "INTELLECTUAL PROPERTY" SHALL INCLUDE ANY AND ALL INTELLECTUAL PROVE RTY, INCLUDING W ITHOUT LIM ITATION DATA BASES, APPLICATIONS, OPERATING SYSTEMS OR OTHER SOFTWARE OF ANY KIND, AND ANY DOCUMENTATION THEREOF. 9. REMEDIES Licensee acknowledges and agrees [ha[ because of the unique nature of the Programs irreparable harm to IHS will be caused by a breach by Licensee of its obligations under [his License Agreement, that monemry damages will be inadequate to compensate IHS for such harm, and that injunctive relief directed against Licensee and in favor of IHS is an appropriate remedy to enforce the provisions of this License. Such injunctive or other equitable relief shall be cumulative of and shall not preclude or waive any other relief or remedies a[ law or in equity [o which IHS may be entitled. Licensee's exclusive remedy hereunder is termination of this License Agreem en[. 10. MISCELLANEOUS a. Assignment. Licensee's rights in and [o [he Programs granted in [his License may no[ be assigned, sublicensed, or transferred voluntarily by Licensee or by operation of law or otherwise, without IHS' prior written consent and the execution of a new License Agreement. b. Notices. Any notice to be delivered pursuant to this License Agreement shall be deemed delivered upon service, if served personally, or three (3) days after deposit in the United States mail if mailed by firs[ class mail, pos[sge prepaid, registered or certified, and addressed to [he person designated for receipt of notice hereunder, at the address set forth on the first page of [his License Agreement or at such other address as shall be speci }ied from time to time in writing by the receiving party. c. Enforcem en[. In [he even[that any provis ion ofthis License Agreement is determined to be IHS License Agreement a~~ uez4ozswN'lClieno-otla"lu'+ Page 5 of 7 invalid or one nfore cab I e, the rem ainde r of this License Agreement shall be valid and enforceable to the maximum extent permitted by applicable law. d. Exclusive Agreement; Modification. This License Agreement constitutes the complete and exclusive statement of the agreement of the parties relative to the licensing of use of the Programs, and supersedes all oral or written proposals or understandings concerning such subject matter. This License Agreement may be modified only pursuant to a writing executed by both parties. Should Licensee elect to issue a purchase order or any similar document for its own internal purposes, this License Agreement shall control any conflict between the terms and conditions of the said order form. e. Public Information Act request. Should Licensee receive a request under the Texas public information (open records) ac[ for disclosure, access [o, or copying of any proprietary information provided by or belonging [u IHS or any of its licensors, including but w[ limited to disclosure of, access to, or a copy of the Programs or any par[ thereof, Licensee shall immediately notify LHS, including notice in writing and a copy of the said request, so [hat IHS may determine what steps it may wish to take to protect such information. Unless IHS expressly states [o Licensee in writing [hat i[ wishes to forgo seeking exemption or exception from such disclosure, Licensee shall have [be duty hereunder timely to take all required steps to initiate the process by which to request an opinion from the Texas Attorney General concerning whether such information must be disclosed. Thereupon, Licensee shall promptly no[ity IHS that such request has been made by Licensee, so that IHS may, at its option and to [he extent permitted by ]aw, supplement Licensee's request. In the even[ [hat disclosure is ultimately required, Licensee shall provide to the recipient, along with access [o or any copies of such disclosed materials, a notice that the materials are owned by or licensed to IHS, are protected under [he federal Copyright Act and other laws, and that recipient is no[ by virtue of disclosure under the Texas Public Information Act (or any successor s[am[el [hereby authorized [o use, copy, or disseminate the materials without the express written consent of IHS; and [hat any unauthorized use, copying or dissemination may constitute a violation of federal copyright or other laws, and could therefore subject [he recipient or others to civil or criminal penalties. FAILURE OF LICENSEE TO COMPLY PULLY WITH THE OBLIGATIONS OF THIS SUBSECTION SHALL BE A MATERIAL BREACH OF THIS LICENSE AGREEMENTAND SHALL CONSTITUTE GROUNDS FOR THE IMMEDIATE TERMINATION OF THIS LICENSE AGREEMENT BY 1H S, WITHOUT PENALTY THEREFOR OA FURTHER OBLIGATION TO LICENSEE. Such termination shall notrelieve Licensee from the obligation [o pay any outstanding fees or costs hereunder, or other obligations hereunder that survive termination. f. Costs; Attorneys Fees. In the event any action is brought by IHS [o enforce this License Agreement, IHS shall be entitled [o recover its costs of enforcement including, without limitation, attorneys' fees and court costs. g. Survivability. The obligations set forth . herein shall survive any termination of this License Agreement. h. Governing Law. This License Agreement shall be governed by and enforced in accordance with the laws of the State of Texas, its choice of laws provisions excepted. i. Forum Selection. Any suit brought by or against IHS under, concerning or related to this License Agreement may be brought only in [he State of Texas and jurisdiction and venue for any action arising under or concerning [his License Agreement or [he related Data Processing Services Agieemen[ shall be and lie exclusively in Travis Couuty, Texas state courts or the federal courts of the Western District of Texas, Austin Division. IHS Lmensc Agreement Rey. ue~aozswtv~cu~,v-oso~m Page 6 oC7 No Waiver of Rights No term or provision of this Agreement shall be deemed to be waived and no consent to anv breach or default shall be deemed unless such waiver or consent be in writing signed by the party against which such waiver or consent is asserted, [he [ermsof [his Agreement shall not be deemed [o be amended by any such waiver or consent unless in a writing expressly stating such amendment; and any waiver by either party, whether express or implied, shall not imply a consent or waiver of any term or provision on any other occasion, or any consent to any different breach or default. k. Construction Descriptive headings or captions in this License Agreement are for convenience only and shall not affect the construction or application of [his License Agreement. Wards having established technical or trade meanings in the industry shall be so construed. Lists of items shall no[ be exclusive unless expressly so stated, but shall include other items, whether similar or dissimilar [o those explicitly listed, as the context reasonably requires. No rule of construction requiring interpretation against the drafting party shall be applied or given effect. Words of any gender used herein shall be deemed to include words of any other gender, and use of the singular or the plural herein shall include [he other, unless context requires otherwise. 1. Cooperation Licensee shall cooperate fully with IHS in the maintenance and protection by IHS of any intellectual property ownership or other rights or interest of IHS in the Programs or other intellectual property or interests [herein that are the subject matter of this License. APPROVALS IN WITNESS W HER F.OF, we have executed [his License Agreement as of [he _____ day of ______________ __, 20 06 . Kerr County ---------------------------------- S [Licensee name] BY: _ _ ______ ___ _•_ BY: NA PRINTEU: Hon_Pal Tinley _ _ _ _ NAN(E PRINTED: Robert Baird TITLE: Kerr County Judge _ _ _ _ TITLE: President DATE: ____ /-_ !ter-GJ10__________ DATE: G ZZ 1 ~- ________ IHS License Agreement a~~. u5aao~swiV9c6cm-osu~o; Page 7 of 7 BUSINESS ASSOCIATE AGREEMENT (Intended to be an Amendment or Addendum to an Agreement For Services Involving the Use, Creation or Transmission of Protected Health Information) This Business Associate Agreement ("Agreement") effective on August 1, 2006, ("Effective Date") is entered into by and between Indigent Healthcare Solutions Ltd. (the "Business Associate") and Medina County, (the "Covered Entity"). RECITALS A. The purpose of this Agreement is to comply with the Standards for Privacy of Individually IdentiFiable Health Information ("protected health information") published on December 28, 2000 by the Secretary of the U.S. Department of Health and Human Services ("HHS") to amend 45 C.F.R. Part 160 and Part 164 (the "Privacy Regulation") under the Health Insurance Portability and Accountability Act of 1996 ("HIPAA"). B. [The parties have a prior agreement (the "Data Processing Service Agreement" DPSA) under which the Business Associate regularly uses protected health information (PHI) in its performance of services for the Covered Entity C. This Agreement sets forth the terms and conditions pursuant to which protected health information that is provided by, or created or received by, the Business Associate from or on behalf of the Covered Entity will be handled. NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants and agreements hereinafter addressed, the parties agree as follows: 1. Services. The Business Associate provides services for the Covered Entity that involve the use of protected health information. Except as otherwise specified herein, the Business Associate may make any and all uses of protected health information necessary to perform its obligations under the DPSA between the parties. Additionally, Business Associate may disclose protected health information for the purposes authorized by this Agreement only (a) to its employees, subcontractors and agents, in accordance with Section 2(d), or (b) as directed by the Covered Entity. 2. Responsibilities of Business Associate. With regard to its use of protected health information, the Business Associate hereby agrees to do the following: (a) Use the protected health information only as permitted or required by this Agreement or as otherwise required by law; (b) Report to the designated privacy officer of the Covered Entity, in writing, any use of the protected health information that is not permitted or required by June 21.2006- Indigent Healthcare Solutions, Conroe. Texas (800) 834-0560 this Agreement of which Business Associate becomes aware within fifteen (15) days of the Business Associate's discovery of such unauthorized use; (c) Use reasonable efforts to maintain the security of the protected health information and to prevent unauthorized use of such protected health information; (d) Require all of its employees, representatives, subcontractors or agents that receive or use or have access to protected health information under this Agreement to agree to adhere to the same restrictions and conditions on the use of protected health information that apply herein, including the obligation to return or destroy the protected health information; (e) Make available all records, books, agreements, policies and procedures relating to the use and/or disclosure of protected health information to the Secretary of HHS for purposes of determining the Covered Entity's compliance with the Privacy Regulation, subject to attorney-client and other applicable legal privileges; (f) Within forty five (45) days of receiving a written request from the Covered Entity, provide to the Covered Entity such information as is requested by the Covered Entity to permit the Covered Entity to respond to a request by the subject individual for amendment and accounting purposes of the disclosures of the individual's protected health information in accordance with 45 C.F.R. §164.526 and §164.528. Covered Entity shall reimburse business Associate for reasonable fees associated with providing said information; (g) Return to the Covered Entity or destroy, as requested by the Covered Entity, within thirty (30) days of the termination of this Agreement, the protected health information in Business Associate's possession and retain no copies. 3. Responsibilities of the Covered Entity. With regard to the use of protected health information by the Business Associate, the Covered Entity hereby agrees: (a) To inform the Business Associate of any changes in the form of notice of privacy practices that the Covered Entity provides to individuals pursuant to 45 C.F.R. §164.520 and provide the Business Associate a copy of the notice currently in use; (b) To inform the Business Associate of any changes in, or withdrawal of, the consent or authorization provided to the Covered Entity by individuals whose protected health information may be used by Business Associate under this Agreement pursuant to 45 C.F.R. §164.506 or §164.508; and (c) To notify the Business Associate, in writing and in a timely manner, of any restrictions on the use of protected health information agreed to by the Covered Entity as provided for in 45 C.F.R. §164.522. June 21, 2UU6-Indigent Healthcare Solutions, Conroe, Texas (800) 83J-0560 4. Mutual Representation and Warranty. Each party represents and warrants to the other party that all of its employees, agents, representatives and members of its work force, who services may be used to fulfill obligations under this Agreement, are or shall be appropriately informed of the terms of this Agreement. 5. Termination. As provided for under 45 C.F.R. §164.504(e)(2)(iii), the Covered Entity may immediately terminate this Agreement if it determines that the Business Associate has breached a material provision of this Agreement. Alternatively, the Covered Entity may choose to: (i) provide the Business Associate with thirty (30) days written notice of the existence of an alleged materia- breach; and (ii) afford the Business Associate an opportunity to cure said alleged material breach upon mutually agreeable terms. Failure to cure in the manner set forth in this paragraph is grounds for the immediate termination of this Agreement. If termination is not feasible, the Covered Entity shall report the breach to the Secretary of HHS. This Agreement will automatically terminate without any further action of the parties upon the termination or expiration of the DPSA. 6. Amendment. This Agreement may not be modified or amended, except in writing as agreed to by each party. 7. No Third Party Beneficiaries. Nothing expressed or implied in this Agreement is intended to confer, nor anything herein shall confer, upon any person other than the parties hereto any rights, remedies, obligations, or liabilities whatsoever. 8. Notices. Any notices to be given hereunder shall be made via U.S. mail or express courier, or hand delivery to the other party's address given below as follows: If to Business Associate: Indigent Healthcare Solutions 2040 Loop 336 -Suite 304 Conroe, TX 77304 If to Covered Entity: Kerr County 700 Main Street Kerrville, Texas 78028 IN WITNESS WHEREOF, the parties hereto hereby set their hands and seals as of the _ day of , 2006. IN PRESENCE OF: Business Associate Name: Robert Baird Title: Pr Id nt Date: L ~2~ , 2006 Juue 21, 2006- Indigent Healthcare Solutions, Conruq Tezas (S00) 834-0560 3 ATTACHMENT A TO DATA PROCESSING SERVICES AGREEMENT Re: Data Processing Services Agreement between Indigent Healthcare Solutions Ltd. Hereinafter called IHS and Kerr County, Texas. The services /programs per Release V~ are as follows: SERVICES /PROGRAMS • Vendor Management • Client Management • Invoice entry for prescriptions • Invoice entry for anesthesia • Invoice entry for physician services • Invoice entry for in-patient care • Invoice entry for outpatient care • Monthly updates for Red Book / NDC drug codes • Annual updates for CPT codes • Client listings • Termination listings • Explanation of benefits (EOB) reporting • General Ledger totals reports • Source totals reports • Pending invoice listings • Hospital utilization by days • Amounts paid on clients • CPT usage reports • DRG Code Management This Addendum shall become effective when executed and except as modified herein, all of the terms and conditions of the Data Processing Services Agreement shall remain in full force and effect. Client: Kerr County, Texas By: Name: Hon. Pat Tinley Indigent car olutions By: Robert Baird Title: Kerr County Judge Date: /7~ President G~z~ ~ Date: ~ Client shall receive all new soft`vare feature updates as available ** CPT Addendum to Data Processing Services Agreement ** 1n accordance with the Terms and Conditions of the Data Processing Services Agreement between Kerr County, Texas herein after referred to as "Client" and Indigent Healthcare Solutions Ltd., this Addendum shall document IHS' licensing to Client updated versions of the Physicians' Current Procedural Terrninology CPTTM codes a product of the American Medical Association (AMA), a coding work of nomenclature and codes for the reporting of physician services. For the consideration of $10.00 per concurrent user, per month, IHS will install and update the most recent CPTTM codes for the Client Indigent Health Care Office. # Concurrent Users 2 Monthly License $20.00 CPTTM codes are a copyrighted product of the American Medical Association (AMA). All notices of proprietary rights, including trademark and copyright in CPT must appear on all permitted backup copies This Addendum is nontransferable, nonexclusive, and is for the sole purpose of internal use by Client, and only in the United States. CPTTM codes may not be used in any public electronic bulletin board, or public computer based information system (including the Internet and World Wide Web unless subject to the provisions of this Addendum). Client may not create a derivative product of the CPTTM codes and selling, leasing or licensing it or otherwise making the Electronic Product or any portion thereof available to any unauthorized party. Client may only make copies of the Electronic Product for back up and / or archival purposes. Client should ensure that anyone who has authorized access to the electronic product complies with the provisions of this agreement and the Non Exclusive License Agreement. June 21, 2006 ** CPT Addendum to Data Processing Services Agreement ** If any provision of this Addendum is determined to violate any law or is unenforceable the remainder of the Addendum shall remain in full force and effect. This Addendum shall become effective when executed and except as modified herein, all of the Terms and Conditions of the aforementioned Data Processing Services Agreement shall remain in full force and effect. Hon. Pat Tinley ~-~~-~~ Date Name Robert Baird Co ~Z 4l ~ Date June 21, 2006 Client Indigent are Solutions ** Addendum to Data Processing Services Agreement ** In accordance with the Terms and Conditions of the Data Processing Services Agreement Contract between Kerr County, Texas and Indigent Healthcare Solutions Ltd, (IHS), this Addendum shall document the addition, upgrade, and / or modification in services, hardware ownership, maintenance and monthly billing to Kerr County for Indigent Health Care Services. For the monthly consideration of $100.00, IHS shall install and update the automated Red BookT"' codes for the Kerr County This Addendum shall become effective when executed and except as modified herein, all of the Terms and Conditions of the aforementioned Data Processing Services Agreement shall remain in full force and effect. Kerr County, Texas Indigent Healthcare Solutions Ltd. _~ ~ CHen.-I'at Tinley ~ Robert Baird Kerr County Judge President Date: 7 / ~- Z.~a')o Date June 21, 2006 ~ /~z~4 ~ ~ Q Addendum To Data Processing Services Agreement In accordance with the Data Processing Services Agreement between Kerr County, Texas, hereinafter referred to as the "Client" and Indigent Healthcare Solutions, Ltd. Of Conroe, Texas, hereinafter referred to as "IHS", this Addendum shall document the mutual changes made by all parties to the Data Processing Services Agreement. Client and IHS have agreed to the following terms and conditions: Section 6 "Subject To Aaaropriation" All references /occurrences to ninety (90) days shall be modified to be thirty (30) days. Section 12 "Termination" All references /occurrences to ten (10) day notice to correct notice of default shall be replaced with "reasonable time". The intent being to give both parties reasonable time to correct issues relevant to notice of default. Section 20 "Venue" Section 20 shall be modified to reflect that Venue will be in Comal County, Texas replacing Travis County, Texas. Section 25 "Force Maieure" Section 25 shall be changes to read..... "and such excuse by reason of force majeure shall last until 1HS or the county by the exercise of reasonable diligence might remove, avoid or otherwise cure such impediment." This Addendum shall be effective when executed and except as modified herein, all of the Terms and Conditions of the aforementioned Data Processing Services Agreement and Non-Exclusive License Agreement shall remain in full force and effect. Kerr County, Texas -- i ~13on-P'aTF~u~I y~- _`'~~ County Judge 1HS Robert Baird President Date: 7 -/ 7 ~ Date: 7 ~~ (..~