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PM/EHR ADDENDUM

Effective as of October 1, 2024 (Version Number: 45566)


All terms not defined herein shall have the meaning ascribed to them in the DAS Standard Incorporated Terms and Conditions.

 

PM/EHR Software - If the executed COF includes Practice Management (PM) or Electronic Health Record (EHR) Software in any form, the following additional terms and conditions apply: 

    1. DAS will use reasonable commercial efforts to provide access to one non-exclusive, non-transferable Software license for each product/Provider/User combination for which payment has been received (additional added products, Providers and Users will be billed separately at then current rates);
    2. DAS will use reasonable commercial efforts to provide access to the Software for all Users; 
    3. Client shall identify at least one “Superuser” who, upon approval by DAS, shall be the primary contact for all training and support requests; all system Users, including the Superuser(s), shall be required to attend periodic training classes offered by DAS, which may be electronic/virtual, at the Client site or at DAS offices. Client is responsible for attending weekly project meetings/calls as outlined in the Implementation Plan. In the event that any of Client’s employees do not show for scheduled project meetings/calls or training with less than ten (10) business days’ notice (except as may be unavoidable as a result of accident or sudden illness), DAS is entitled to charge for the time at the then current Training rates as Additional Charges, even if Client has an “unlimited training” plan or the training was otherwise free. 
    4. Proper use of the Software requires customization, setup and training, both initially and periodically as the Software is updated and the needs of Client evolve. Client is solely responsible for purchasing initial and future customization, setup and training as needed to properly maintain the Software. All customization, setup and training days included are based on estimates only, and cannot be determined with any degree of certainty due to the differences in individual practice requirements, capabilities, and learning capacity.
    5. DAS may complete some or all of the File Build portion of implementation. Client acknowledges that DAS has no specific knowledge of Client’s business, and therefore may not set up some or all files the specific way that Client would if they were conducting the File Build. In addition, DAS staff may make data entry or other errors that could materially impact Client’s business and patient care. Client specifically and irrevocably waives any and all rights against DAS with respect to any File Build activities. 
    6. Provided that ongoing PM/EHR support Services (“Support”) were purchased, DAS will use reasonable commercial efforts to provide ongoing training & support as then offered by DAS. If Support is not purchased on an ongoing basis (with an associated MSC), but rather on an episodic basis, Support shall be billable at the then current hourly consulting rate, or $200 per hour; discounted rates are available for prepaid hour blocks. In the event that cases or calls per provider exceed the average cases or calls per provider by 20% or more, Client will be charged the then current hourly consulting rate, or $200 per hour as Additional Charges. For Support, Client may visit https://dashealth.com/client-support/, email Support@dashealth.com, or call the Support Line (813-774-9800 x3). 
    7. All Support requires Client to have one of the following options, which shall be a condition precedent to any obligation of DAS hereunder: (i) Maintain hosting services with DAS pursuant to the Hosting Addendum; (ii) maintain Managed IT Essentials (or higher) with DAS pursuant to the MSP Addendum; or (iii) maintain TeamViewer or other unattended access remote program as directed by DAS on all Client servers and end point devices that are supported by the PM/EHR Support services; and if (ii) or (iii), also have at least daily offsite backups and disaster recovery. Notwithstanding Client’s failure to comply with this Section, DAS may, at its sole option, but is not required to (even if paid), provide Support. 
    8. Client agrees to provide, for each location, at least one approved firewall, router, wireless access point, and for each User, an approved computer; whether or not ordered through DAS. Client represents and warrants that it has reviewed the current System Requirements, and that all Client Supplied Items meet or exceed such requirements. Additional terms and conditions apply to all Client Supplied Items. Any additional time and materials spent relating to Client Supplied Items will be billed as Additional Charges.
    9. If hosted services are included, Client agrees to provide broadband ISP or other acceptable connectivity (complying with System Requirements) to the DAS host server facility from the Client location(s), with sufficient bandwidth for optimum performance and usability. 
    10. Client acknowledges (A) the possibility of HIPAA violations, data corruption, virus infection, external hacking, ransomware, or other vulnerabilities, all of which are Client’s sole responsibility unless expressly assumed by DAS; (B) that Client is solely responsible for any and all data loss, corruption, or other IT issues requiring remediation, including any time spent by DAS to assist in any prevention or remediation efforts, at a minimum rate of $200 per hour ($275 per hour if it requires the involvement of a third party’s technical engineers); and (C) such time will be billed and payable as Additional Charges. Further, Client agrees to provide DAS with timely and sufficient remote access to Client server(s) to perform scheduled or unscheduled maintenance on Client’s PM/EHR database, in order for DAS to perform the application of hotfixes and upgrades and/or add or remove Users, in DAS’s reasonable discretion. Client will also provide Direct IP access for offsite DAS staff to enable provision of contracted software support or related services. All PM/EHR Support services without concurrent Hosting or MSP services require a minimum one month Deposit and a current DDA on file. 
    11. Software upgrades and maintenance are only provided by the Software vendor and are not the responsibility of DAS. If Client has purchased recurring Software Maintenance from DAS, is current on all payments, and has not provided Notice of termination or non-renewal, DAS will provide Software updates as provided by the Software vendor in either “GA” or “GR” form, as applicable. Client is solely responsible for ensuring Software is updated to the most recent generally-released version and is otherwise compliant with all laws and regulations. If Client fails to upgrade to a more recent version of the Software when requested by DAS, Client may be subject to reduced support or such failure may be deemed a Monetary Breach, at DAS’s sole discretion. 
    12. Client is solely responsible for acquiring, servicing, maintaining, and updating all equipment that allows Client to access and use the Software. Client shall use the Software only in accordance with any and all operating instructions or procedures that may be issued by DAS. Client understands and agrees that the operation and availability of the systems used for accessing and interacting with the Software, including, telephones, computer networks and the Internet or to transmit information, whether or not supplied by Client or DAS, can be unpredictable and may, from time to time, interfere with or prevent the access to and/or the use or operation of the Software. DAS and its Affiliates are not in any way responsible for any such interference with or prevention of Client’s access and/or use of the Software. 
    13. Some Software may incorporate, access, or otherwise contain certain products, including, without limitation, CPT codes pursuant to various license agreements. If the Software contains CPT codes, then the following provisions apply:
        1. Client License Grant. Upon receipt of payment by DAS for such CPT code license, Client is hereby granted a nontransferable, nonexclusive right to use the publication developed by the American Medical Association (“AMA”) titled Current Procedural Terminology as well as CPT® Assistant and CPT® Changes (collectively referred to herein as “CPT”), in the United States, solely as part of the Software and solely for the Permitted Purpose. Failure by Client to provide timely payment for any such license, or to otherwise breach this provision, shall be considered a Monetary Breach.
        2. Warranty. THE CPT ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF PERFORMANCE OR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. CLIENT BEARS ALL RISK RELATING TO QUALITY, ACCURACY AND PERFORMANCE OF THE CPT.
        3. Limitation of Liability. IN NO EVENT WILL DAS, THE AMA, OR ANY THIRD-PARTY VENDOR BE LIABLE FOR ANY, INCIDENTAL, SPECIAL, CONSEQUENTIAL PUNITIVE OR EXEMPLARY DAMAGES, ARISING OUT OF THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE CPT, EVEN IF DAS, THIRD PARTY VENDOR OR THE AMA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION OF LIABILITY SHALL APPLY TO ANY CLAIM OR CAUSE WHATSOEVER WHETHER SUCH CLAIM OR CAUSE IS IN CONTRACT, TORT OR OTHERWISE. IN NO EVENT SHALL DAS TOTAL LIABILITY FOR ANY DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT EXCEED THE LICENSE FEES PAID FOR CLIENT’S RIGHT TO USE THE CPT IN THE YEAR IN WHICH THE CAUSE OF ACTION AROSE.
        4. Ownership of Intellectual Property. Client acknowledges and agrees that the AMA owns all copyrights in the CPT and that the CPT is a registered trademark of the AMA.
        5. Third Party Beneficiary. All DAS third party vendors are a direct and intended third party beneficiary of DAS’s rights under this Agreement with respect to the provisions herein as they relate to the CPT. 
        6. Confidentiality. Client may disclose the CPT Products only to the extent required by law, and in such case only after prompt written Notice to DAS allowing it the opportunity to interpose all objections to the proposed disclosure.
        7. Updates and Upgrades. Client’s right to future updates to the CPT for use in the Software is dependent on a continuing contractual relationship between DAS, its third-party vendors and the AMA.
        8. Copies. Client may make copies of the CPT solely for backup or archival purposes. All Notices of proprietary rights, including trademark and copyright Notices, must appear on all such copies. At termination of this Agreement, Client shall discontinue use of the CPT Products and destroy or return to DAS the CPT Products and all such copies thereof.
        9. U.S. Government Rights. This product includes CPT® and/or CPT® Changes which is commercial technical data and/or computer data bases and/or commercial computer software and/or commercial computer software documentation, as applicable which were developed exclusively at private expense by the American Medical Association, 515 North State Street, Chicago, Illinois, 60610. U.S. Government rights to use, modify, reproduce, release, perform, display, or disclose these technical data and/or computer data bases and/or computer software and/or computer software documentation are subject to the limited rights restrictions of DFARS 252.227-7015(b)(2) (November 1995) and/or subject to the restrictions of DFARS 227.7202-1(a) (June 1995) and DFARS 227.7202-3(a) (June 1995), as applicable for U.S. Department of Defense procurements and the limited rights restrictions of FAR 52.227-14 (June 1987) and/or subject to the restricted rights provisions of FAR 52.227-14 (June 1987) and FAR 52.227-19 (June 1987), as applicable, and any applicable agency FAR Supplements, for non-Department of Defense Federal procurements.
        10. Other Third-Party Products. Client agrees that at any time, DAS may substitute third party products which are incorporated, accessed, or otherwise contained in the Software or Services with other similar third-party products.
        11. In the event that Client uses CPT codes without paying the appropriate license fee, Client indemnifies and holds DAS harmless for any and all damages, awards, costs and fees incurred by DAS with respect to such use.
    14. Client shall exclusively use the Software (to the exclusion of alternative, competitive software) for the intended purpose, unless otherwise agreed in writing by Notice to DAS.
    15. In the event that an OCR scanner is purchased by Client to be used in conjunction with its PM/EHR Software, Additional Charges may apply on a per scan basis.
    16. The applicable PM / EHR Software vendor EULAs, including TeamViewer, are available at https://DAShealth.com/documents/ and are specifically incorporated by reference and made a part of this Agreement. 
    17. Third Party Product Subscriptions: In the event the Client has subscribed to a terminated or ongoing third-party subscription through DAS, the Client is responsible for the remaining term balance for such subscriptions upon termination regardless of other existing service termination dates. Examples but not limited to: NextGen PxP, NextGen Virtual Visits, NextGen Mobile, and NextGen Financial and Operational Analytics. It is Client’s responsibility to keep up to date with any changes to third party Terms & Conditions, Master Service Agreements, Terms of Use, or subscription terms.
    18. For the purposes of this Addendum, “Software” shall mean the applicable PM or EHR Software.
    19. With respect to any NextGen Software or ancillary offerings, Client acknowledges and agrees to be bound by the Pass-Through Terms available at https://www.nextgen.com/partner-program-legal, and the third-party vendor agreements available at https://www.nextgen.com/third-party-agreements. These terms are expressly incorporated into this Agreement by reference, and DAS is designated as a third-party beneficiary of such terms, with full rights to enforce them. It is Client’s responsibility to keep up to date with any changes to such terms. 
    20. Client acknowledges and agrees that all licenses for “SaaS” NextGen Enterprise (NGE) or Aprima Software provided under this Agreement are non-transferable and non-exclusive, and ownership of said licenses shall at all times remain with DAS. Client shall have no ownership interest in any “SaaS” NGE or Aprima Software licenses provided under this Agreement. The “SaaS” licenses for NextGen and Aprima Software are leased to Client by DAS for the duration of this Agreement. Upon termination of this Agreement for any reason, the Client's right to use the licenses shall automatically terminate, and all rights to the licenses shall revert to DAS. Client acknowledges and agrees that DAS reserves the right to suspend or terminate any license at its sole discretion in accordance with the terms of this Agreement. Upon the expiration (or termination, at DAS’s discretion) of this Agreement, Client may, at its option, purchase the leased NextGen licenses; the purchase price for each license shall be twice the Manufacturer's Suggested Retail Price (MSRP) listed for the applicable software asset at the time of expiration or termination, as applicable. Any payments made by Client for the use of the licenses throughout the duration of the Agreement shall not be credited toward the purchase price. If the Client has opted for self-hosting of the NextGen licensed software, Client must provide DAS with satisfactory evidence that the Client has cancelled and returned the relevant license(s) to DAS. Upon such notification, DAS shall un-license the applicable software for redistribution to another client. DAS reserves the right to suspend or terminate the Client's access to the licensed software in the event of Client's default or breach of any terms of this Agreement, including but not limited to failure to make payments or comply with other obligations set forth herein.