CHRONIC CARE SERVICES AGREEMENT
(“Full Service Agreement”)
Company: Chronic Care Management, LLC Practice: Name
30575 Bainbridge Rd., Suite 180 Address: Street
Solon, OH 44139 City, State, Zip
- Practice treats certain patients with chronic conditions (the “Patients”) who have consented to participate or otherwise qualify to participate in a chronic care management program reimbursable by Medicare and other third party payors (“Payors”);
- Company and Practice are party to that certain Order Form and Master Subscription Agreement (the “Subscription Agreement”), pursuant to which Company has licensed certain chronic care management software (the “CCM Software”) to Practice in order to allow Practice to establish chronic care management plans for each Patient (the “Plan”); and
- In the event that Practice desires to engage Company to provide chronic care management services in addition to the license granted in the Subscription Agreement, Company shall provide such services on the terms and conditions set forth in this Agreement.
NOW, THEREFORE, for good and valuable consideration, the sufficiency of which is hereby acknowledged, the Parties agree as follows:
- Services. Company shall provide Practice, upon Practice’s specific request, with a support team staffed by licensed practical nurses, medical assistants or other qualified individuals (the “Personnel”) to assist Practice with completing care management plans utilizing the CCM Software (the “Services”). The Services shall include, but not be limited to, the following:
(a) Contacting the Patients and the Patients’ other clinicians, family members, guardians or representatives, as appropriate and permitted by all applicable state and federal laws, rules and regulations (“Laws”), to address care goals, current issues and concerns in connection with each Patient’s Plan; provided, however, that in no event shall the forgoing communications include providing medical advice or clinical care to the Patients;
(b) Revising, updating or otherwise assisting Practice to complete each Patient’s Plan through the CCM Software; and
(c) Communicating (telephonically or electronically) with Practice regarding the Patient’s Plan and the Personnel’s communications with the Patients.
The Services shall be available on commercially reasonable hours and times established by Company. The Services shall only be available to Practice and Practice’s authorized users pursuant to the Subscription Agreement.
(a) This Agreement shall commence as of the Effective Date for an initial two (2) year term. Thereafter, this Agreement shall renew automatically for successive terms of one (1) year unless either Party gives the other notice of such Party’s intent not to renew this Agreement at least ninety (90) days prior to the end of the current term, or this Agreement is otherwise terminated pursuant to Section 2(b) below.
(b) This Agreement may be terminated as follows:
(i) This Agreement shall automatically terminate, with no further action required of either Party, upon termination of the Subscription Agreement.
(ii) This Agreement may be terminated by either Party, with or without cause, upon ninety (90) days prior written notice.
(iii) This Agreement may be terminated immediately by either Party in even of the following:
- The other Party materially breaches this Agreement, which breach remains uncured within ten (10) days following notice of such breach.
- The other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
(c) Upon termination of this Agreement, Practice shall pay all Fees (as defined in Section 3 below) for Services provided prior to the effective date of termination. Company shall cease providing the Services as of the effective date of termination, and shall have no further obligations under this Agreement. Termination of this Agreement for any reason whatsoever shall not affect the Subscription Agreement, which shall remain in full force and effect until terminated in accordance with its terms.
(a) As compensation for the Services, Practice shall pay fees to Company as detailed on the Order Form.
(b) All invoices are due and payable net thirty (30) days from the invoice date. In the event that an invoice is not paid by such date: (i) the unpaid charges shall accrue interest at the rate of 1.5% of the amount owed, or the maximum amount permitted by applicable Laws, whichever is lower; and (ii) Company may condition Practice’s future use of the Services on payment of invoices in a different manner or with a shorter due date. The foregoing does not limit the ability of Company to pursue any other right and remedies that may be available to Company.
- Duties of Practice.
(a) Practice shall collect and maintain consents to participate in a chronic care management program from each of the Patients in accordance with all applicable Laws and Payor requirements.
(b) Practice shall be solely responsible for the accuracy of all information submitted to Company or accessed by Company through Practice’s electronic medical records system (the “Patient Information”). Company will have no liability for using and relying on the Patient Information in the performance of the Services.
(c) Practice shall be solely responsible for submitting and collecting all claims for reimbursement for any medical services provided to the Patients, including, without limitation, chronic care management services, in accordance with all applicable Laws and Payor requirements. Company shall not, and shall have no right to, invoice or seek reimbursement from the Patients or Payors in connection with the Services.
(d) The Services shall be performed in coordination with, and under the supervision of, Practice and the Patient’s attending clinician. In no event will the Services consist of the rendering of clinical care or the provision of medical advice.
(e) Practice shall, at Practice’s sole cost, provide Company reasonable access to Practice’s electronic medical records system and other information necessary for Company to provide the Services, in accordance with applicable Laws.
(f) Practice shall provide Company with all Patient contact information and information regarding a Patient’s other caregivers, representatives and guardians. Practice shall inform Company about any limitations, restrictions or directions a Patient may have specified regarding the release of the Patient’s medical information to family members or other representatives.
- Insurance. Each Party shall maintain commercially reasonable insurance, in amounts no less than that required by Law, in connection with this Agreement and the duties and obligations of each Party under this Agreement.
(a) Subject to Section 7 of this Agreement, each Party (the “Indemnifying Party”) shall indemnify and hold harmless the other Party, and the other Party’s owners, employees, directors, officers, managers and contractors (collectively, the “Indemnified Party”), from all losses, claims, damages, liabilities, costs, or expenses or actions of any kind or nature (including reasonable attorney’s fees) (collectively, “Losses”), which at any time may be imposed upon or asserted against an Indemnified Party and arise out of, or are based upon: (i) the Indemnifying Party’s reckless or negligent acts or omissions; or (ii) the Indemnifying Party’s breach of this Agreement.
(b) The Indemnifying Party’s obligation to indemnify the Indemnified Party for any Losses shall be conditioned upon the Indemnified Party: (i) providing the Indemnifying Party with prompt written notice of the claim giving rise to such Losses (the “Claim”); (ii) allowing the Indemnifying Party to control the defense and settlement of the Claim (provided, however, that: (A) the Indemnifying Party shall not have the right to control the defense and settlement of any criminal action, and (B) the Indemnifying Party may not settle any Claim without the prior written consent of the Indemnified Party unless it contains no admission of guilt or liability and unconditionally releases the Indemnified Party of all liability under the Claim); and (iii) providing reasonable assistance and cooperation in connection with the resolution of the Claim.
(c) Notwithstanding anything set forth in this Agreement to the contrary, no Indemnified Party shall be entitled to indemnification for any Losses resulting from any breach of any provision of this Agreement by the Indemnified Party or resulting from the gross negligence or willful misconduct of the Indemnified Party. Neither Party shall be liable to the other Party for any Losses covered by insurance, except to the extent the Losses exceed the amount of such insurance coverage.
(d) This Section, as subject to Section 7 below, states the Indemnifying Party’s sole liability to, and the Indemnified Party’s exclusive remedy against, any Claim.
- Liability; Limitations.
(a) NEITHER PARTY’S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL EXCEED THE AMOUNT PAID BY PRACTICE PURSUANT TO THIS AGREEMENT IN THE 12 MONTHS PRECEDING THE INCIDENT GIVING RISE TO SUCH LIABILITY. IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER PURSUANT TO THIS AGREEMENT. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY. HOWEVER, THE ABOVE LIMITATIONS WILL NOT LIMIT CUSTOMER’S PAYMENT OBLIGATIONS UNDER SECTION 3.
(b) IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
- Compliance with Laws. Both Parties shall provide the Services and otherwise perform under this Agreement in compliance with all applicable Laws. Without limiting the foregoing, the Parties shall maintain the security and privacy of all patient information exchanged in the performance of the Services in compliance with applicable Laws and regulations including, without limitation, the Health Insurance Portability and Affordability Act of 1996 (“HIPAA”). Company acknowledges that it shall be acting as a “business associate” of Practice pursuant to this Agreement for purposes of HIPAA, and that this Agreement and the Services performed pursuant to this Agreement will be subject to that certain Business Associate Agreement in effect between the Parties, as the same may be amended from time to time.
- Modification for Laws. In the event any provision of this Agreement is deemed to be inconsistent with any Law including, but not limited to, Medicare and Medicaid reimbursement, physician self-referral or Anti-Kickback Laws, the Parties shall enter into good faith negotiations to adopt such amendments as may be necessary to modify such provision so that it is no longer inconsistent with such Laws and is acceptable to both Parties. Except as set forth herein, the provisions of this Agreement shall be severable and the unenforceability of any provision of this Agreement shall not affect the validity of the remaining provisions. In the event the Parties cannot agree on an amendment to modify provisions impacted by a change in Laws within thirty (30) days of such change, and the severability of the applicable provision affects the validity of the Agreement, either Party may immediately terminate this Agreement by providing written notice to the other Party.
(a) Notices. Any notice required or allowed under this Agreement must be in writing and will be deemed to have been given: (i) upon the third business day after mailing by registered or certified mail, return receipt requested; (ii) the second business day after being sent by facsimile the receipt of which is confirmed by the sending machine; (iii) the first business day after sending by email; or (iv) the date received according to a delivery receipt provided by FedEx or UPS. Notwithstanding the above, notices related to indemnification or termination may not be delivered by email. Notices may be sent as follows:
If to Company, to:
Chronic Care Management, LLC
30575 Bainbridge Rd., Suite 180
Solon, OH, 44139
Facsimile: (440) 248-8700
(b) Notices to Practice regarding billing shall be sent to the “billing contact” set forth in the Order Form, and all other notices to Practice shall be made to the customer contact information specified in the Subscription Agreement.
(b) Governing Law. Any dispute arising under this Agreement shall be adjudicated under the laws of the state of Ohio without regard to its conflict of laws provisions. Each Party hereby submits to the jurisdiction of the appropriate state or federal courts in Cleveland, Ohio.
(c) Relationship of the Parties. Each Party is an independent contractor of the other, and neither this Agreement nor the exercise of any of the duties of the Parties pursuant to this Agreement shall be deemed to create any joint venture, partnership, fiduciary, agency or employment relationship between the Parties. Nothing in this Agreement is intended to convey any rights or benefits upon any third party.
(d) No Illegal Remuneration. No amount paid or to be paid hereunder is intended to be, nor shall it be construed to be, an offer, inducement or payment, whether directly or indirectly, overtly or covertly, for the referral of services by either Party to the other Party or for recommending or arranging the purchase, lease or order of any item or service. Without limiting the forgoing, Practice represents and warrants to Company that Practice has not been offered (or received) any illegal bribe, kickback, gift or other thing of value (other than gifts, meals or entertainment of nominal value provided in the ordinary course of business) from any employee or agent of Company in connection with this Agreement, and shall promptly notify Company if Practice learns or becomes aware of any violation of such restriction.
(e) Entire Agreement. This Agreement, together with the Subscription Agreement and the Order Form form the entire agreement between the Parties with respect to the Services, and supersedes all prior agreements, proposals or other communications between the Parties whether written or oral. No modification or claimed modification of this Agreement will be effective unless in a writing signed by both Parties. In the event of a conflict between the terms of this Agreement and the Subscription Agreement, the terms and conditions of the Subscription Agreement shall control.
(f) Assignment. Neither Party may assign this Agreement without the prior written consent of the other Party, which consent shall not be unreasonably delayed, conditioned or withheld; provided, however, that assignment is permitted as part of a merger, acquisition, corporate reorganization or other transaction involving the sale of substantially all of a Party’s assets.
(g) No Waiver. The failure or delay by either Party in exercising its rights under this agreement shall not be considered a waiver of that right unless that waiver is in writing and signed by both Parties.
(h) Severability. To the extent any provision of this Agreement is held to be unenforceable by a court having jurisdiction over the same, that provision shall be deemed null and void, but the remaining provisions of this Agreement will remain in full force and effect to the greatest extent permitted by Law.