GLOBAL NETWORK SYSTEMS, INC. / GLOBAL VISION, INC.
IT MASTER SERVICE AGREEMENT (MSA) | IT SERVICES AGREEMENT (ITSA)
FOR ALL IT SERVICES INCLUDING: GLOBAL MSS, GLOBAL MPC, AND ANCILLARY/ADD-ON SERVICES | UPDATED: 11/6/2025
These standard Terms and Conditions (these “Terms and Conditions”) form a part of the IT Services Agreement (the “IT Agreement” and together with Terms and Conditions, and signed contract “Agreement”) between by Global Network Systems, Inc., a New Hampshire corporation, with headquarters located at 4 Continental Drive, Exeter, NH 03833 (“Global”, or “GNS”) and its affiliates (including but not limited to Global Vision, Inc. and GlobalComm Technologies, LLC), and the client of Global set forth in the IT Agreement (the “Client”). All capitalized terms set forth herein shall have the meaning set forth in the IT Agreement unless expressly provided to the contrary herein.
1.1 Exclusivity. Client shall take such actions as may be necessary to designate Global as the sole internal and/or external IT provider for Client. Client shall not carry on any IT services or either on its own or through a third party during the term of this Agreement unless described as such in a co-managed or service contract addendum within the signed IT Agreement (the “IT Services Exclusivity”).
1.2 Client Responsibilities. Client agrees to all Client Responsibilities as outlined and specified in the IT Services Agreement.
2. IT Services Fees.
2.1 Client shall pay Global the monthly IT Services Fees specified in the IT Services Agreement and any other additional, supplemental, add-on, quoted, or requested agreements, contracts, projects, or service requests. Contract or Agreement renewals do not absolve the Client of any responsibility to pay Global for tangible or intangible solutions, labor, hardware, software, or other form of service rendered during the previous contract period.
2.2 Overdue Payments. Any payment owed by Client to Global hereunder and not paid to Global when due (an “Overdue Payment”) may accrue, at Global’ discretion, late charges at the rate of one and one-half percent (1.5%) of the outstanding balance per month, or at the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
2.3 Payment. Invoices are due NET 10 and pricing in IT Services Agreement reflects discount for enrollment in ACH automatic payments for monthly services fees. Enrollment in automatic payments via Global’s secure payment processor is required. Credit card payments may be subject to a credit card processing fee. Invoices will automatically process on the due date. Global reserves the right to limit or suspend all services if payments and/or invoices are outstanding or overdue, and apply late fees to the extent allowed by law.
2.4 Invoice. Each month Global shall present Client with an invoice (“Invoice”) setting forth the IT Services payable to Global by Client for the upcoming month. Client shall pay Global the IT Services Fees detailed in each Invoice upon the date of such Invoice.
2.5 Payment Method. Client shall pay Global for any other amounts due under the Transaction Documents via check or ACH electronic payment. If requested by Global, Client shall execute, complete and deliver to Global the electronic payment authorization form (the “Electronic Payment Authorization Form”) provided to Client by Global or otherwise use such payment portal as directed by Global. If the account or other information specified in the Electronic Payment Authorization Form or portal changes during the Term, Client shall provide Global with a revised Electronic Payment Authorization Form or otherwise update the portal in a timely manner so as to avoid incurring an Overdue Payment.
2.6 Currency. All amounts set forth in the Transaction Documents are denominated and shall be paid in U.S. dollars.
2.7 Suspension of Service. If there are Overdue Payments outstanding for more than thirty (30) days, Global reserves the right to suspend Client’s access to all of Global’ products and services until such amounts are paid in full. Client shall continue to be obligated to pay the Fees during such suspension period, including any and all late fees, reactivation fees, or labor associated with service reactivation. This may result in downtime, service outages, service unavailability, and/or other significant business impacts, for which Global is not responsible or liable in any capacity. Suspension of Service is exempt from any liability clauses, as it is directly the responsibility of the Client. Global will provide documented and written warning of overdue payments before Suspension of Service notification.
2.8 Taxes. All amounts payable by Client to Global pursuant to the Transaction Documents (including, without limitation, pursuant to any Statement of Work) are exclusive of all local, state, federal and foreign taxes, levies, or duties of any nature (“Taxes”), and all payments to Global are payable in full without reduction for Taxes.
2.9 Escalation. Beginning on the first anniversary of the Effective Date and on each anniversary thereafter, fees payable under active Agreements shall be subject to an annual adjustment based on the greater of a) the percentage change in the U.S. Consumer Price Index for All Urban Consumers (CPI-U), CPI Less Food and Energy, CPI Services Less Energy Services, or similar benchmark CPI metric, as published by the U.S. Bureau of Labor Statistics, for the twelve (12) month period prior to the anniversary date, or during the most recent period data available from CPI source, or b) eight percent (8%) of all fees applicable during the preceding year. This increase shall apply automatically without the need for further documentation, unless otherwise mutually agreed in writing. Global may apply CPI-based adjustments retroactively to account for inflation accrued since the last adjustment or since the contract began.
2.10 Scalable Fees. The Provider reserves the right to adjust the fees on a monthly basis, or more frequently if a significant change occurs, based on increases in the number of supported endpoints, users, data volume, vendor price adjustments, or other measurable service components. As Global constantly evaluates software stack, technology partners, integrations, and service lines, the Customer may be required to add additional services for enhancements in security, compliance, service delivery, industry best-practices, vendor price increases, or other reason during the duration of the contract period, at an additional cost which will be reviewed with the Customer. For contracted services which are per-seat (per-user, per-device, per-endpoint, etc.) the Customer will be invoiced for the highest count over a 30-day or monthly period and will not be invoiced below the active TCV which becomes the monthly minimum, as detailed below.
2.11 Minimum Fees. Total Contract Value (TCV) on a minimum basis shall be the quoted per-seat, per-user, per-device, and/or based on add-on or additional service or labor provided, or overall estimated monthly cost per most recent signed Agreement, multiplied by the duration of the agreement term. This value as stated in the active signed Agreement shall become the “Minimum Fee” or “Minimum Monthly Fee” or “Floor Value” and the Client may not opt to reduce services to below this value at any point during the Contract Term. If the customer reduces service requirements, Global, at its sole discretion, may a) continue invoicing for the “Minimum Fee” based on signed Total Contract Value (TCV) or b) request the entire remaining value of the contract at “Minimum Fee” become due immediately, calculated by establishing remaining TCV by multiplying the “Minimum Fee” by the “Term” for each service line, less any payments made by the Customer during the active Term.
2.12 Total Contract Value (TCV) Floor. Notwithstanding any provision of this Agreement to the contrary, the total monthly fees payable by Client shall not, at any time during the Term, be reduced below the Total Contract Value (“TCV”) in effect as of the most recent contract renewal or fee escalation adjustment, as applicable.
For avoidance of doubt, any decrease in the number of users, devices, endpoints, locations, support tickets, utilization, or other service variables shall not operate to reduce the monthly Managed Services fees below such TCV floor unless expressly agreed to in writing through a formal amendment to the active Agreement. This minimum monthly billing requirement shall remain in effect for the duration of the applicable contract term and shall only be modified upon contract renewal or amendment, the latter at Global’s sole discretion.
2.13 Service Fees. Global provides a variety of recurring, non-recurring, licensed, and professional services as part of Service Agreement. Global services and solutions are contracted separately. For example, Global Managed Services & Support (MSS) will contract separately from Managed Private Cloud (MPC) or other add-on services required to support the Customer or Client environment and deliver the contracted services. Hardware, subscriptions, contracted labor, projects, professional services, and other items will all be contracted separately. All contracts require active Global MSS and acceptance of the current MSA/ITSA. Global reserves the right to convert any labor into a billable project at current hourly rates based on the type(s) of services, labor, or other work being performed. All Agreements shall renew in 1-year intervals from the later of a) date of signature, b) services start date, or c) first invoice date unless a new, updated, or superseding Agreement is signed by the Customer. The Customer is responsible for providing a minimum of 90-days written notice to terminate an Agreement from the next renewal date, including both the initial Agreement term and any subsequent automatic renewals based on the Terms.
3. Modifications to Services. Notwithstanding anything in the Transaction Documents to the contrary, Global may, in its sole discretion, modify, update, revise, enhance or change any aspect of the IT Services. Notwithstanding anything in the Transaction Documents to the contrary, Client acknowledges and agrees that Global is under no obligation to provide Client with access to any third party software, website or service as part of the IT Services and to the extent that the IT Services provide access to any third party software, website or service Global reserves the right, without prior notice, to suspend, limit or cancel such access for any reason.
3.1. Service Enhancements. Global may, in its sole discretion, add, remove, modify, update, revise, enhance, or change services and solutions provided under the Agreement. This may be due to changes in vendor licensing or service offerings, or to provide additional industry-best practice or new solutions designed to increase the overall security, performance, service delivery, auditing, compliance, or any other service offering during the duration of the Agreement as technologies, regulations, and service lines evolve, and to ensure consistency with Global service delivery.
4. SOW Services.
4.1 Statements of Work. From time to time, the Parties may execute statements of work that describe the specific services to be performed by Global, including any work product to be delivered by Global (as executed by the Parties, a “Statement of Work”). Each Statement of Work will expressly refer to this Agreement, will form a part of this Agreement, and will be subject to the terms and conditions contained herein.
4.2 Performance of Services. Global will perform the services specified in each Statement of Work (the “SOW Services”) in accordance with the terms and conditions of this Agreement and of each applicable Statement of Work.
4.3 Changes to Statement of Work. Client may submit to Global written requests to change the scope of SOW Services (each such request, a “Change Order Request”). Global may approve or reject such Change Order Requests in its sole discretion. If Global approves a Change Order Request, then Global will promptly notify Client if it believes that such Change Order Request requires an adjustment to the SOW Fees (as defined below) or to the schedule for the performance of the SOW Services. In such event, the Parties will negotiate in good faith a reasonable and equitable adjustment to the SOW Fees and/or schedule, as applicable. Global will continue to perform SOW Services pursuant to the existing Statement of Work and will have no obligation to perform any Change Order Request unless and until the Parties have agreed in writing to such an equitable adjustment to the SOW Fees and/or schedule, as applicable.
4.4 Client Responsibilities. In connection with the SOW Services, Client will: (i) provide qualified personnel who are capable of performing Client’s duties and tasks with respect to applicable SOW Services; (ii) provide Global with access to Client’s sites and facilities during Client’s normal business hours and as otherwise reasonably required by Global to perform the SOW Services; (iii) provide Global with such working space and office support (including access to telephones, photocopying equipment, and the like) as Global may reasonably request; (iv) update, upgrade, maintain, change, replace, refresh, or otherwise enhance hardware, software, and any other network-attached or information technology component which has met or exceeded the supporting vendor, manufacturer, distributor, or general best practice for information security standards, end of life, end of support, sunset, or other similar time or security-based standard which allows Global to perform duties, safeguards, and preventative measures to protect, secure, maintain, and support the Client’s organization; and (v) perform Client’s duties and tasks under this Agreement, including under any Statement of Work, and such other duties and tasks as may be reasonably required to permit Global to perform the SOW Services. Client will also make available to Global any data, information and any other materials required by Global to perform the SOW Services, including, but not limited to, any data, information or materials specifically identified in this Agreement (collectively, “Client Materials”). Client will be responsible for ensuring that all such Client Materials are accurate and complete.
4.5 SOW Fees and Expenses. For Global’s performance of the SOW Services, Client will pay Global the fees calculated in accordance with the terms set forth in this Agreement, including, any applicable Statement of Work (the “SOW Fees”). In addition, Client will reimburse Global for the following expenses incurred by Global or its personnel in connection with the performance of the SOW Services (the “SOW Expenses”): all out-of-pocket costs and all travel, lodging and other related expenses, if any.
4.6 SOW Payment Terms. Unless otherwise specified in this Agreement or the applicable Statement of Work, Global shall send one or more invoices (each, a “SOW Invoice”) to Client for all applicable SOW Fees and SOW Expenses contemplated by the applicable Statement of Work. Unless otherwise specified in the applicable Statement of Work, all amounts specified in a SOW Invoice are due upon the issuance of such SOW Invoice by Global. Unless otherwise specified in the applicable Statement of Work,
4.7 Ownership. Global will exclusively own all rights, title and interest in and to any software programs, software tools, utilities, technology, processes, inventions, devices, methodologies, specifications, documentation, training manuals, techniques and materials of any kind used or developed by Global or its personnel in connection with performing the SOW Services (collectively “Global Materials”), including all worldwide patent rights (including patent applications and disclosures), copyright rights, moral rights, trade secret rights, know-how and any other intellectual property rights therein. Client will have no rights in the Global Materials except as expressly agreed to in writing by the Parties in the Statement of Work.
4.8 Other Services. Nothing in this Agreement or any Statement of Work will be deemed to restrict or limit Global’s right to perform similar services for any other party or to assign any employees or subcontractors to perform similar services for any other party. Client acknowledges that Global may engage subcontractors to perform certain services.
4.9 Non-Solicitation. During the Term and for a period of thirty-six (36) months thereafter, Client will not recruit or otherwise solicit for employment any employees of Global or it’s affiliates without Global’s direct written consent and approval.
5. Intellectual Property.
5.1 Client Intellectual Property
Client represents and warrants that none of the content, materials, designs, text, names, data or other information, including, without limitation, Client Data, provided by Client, its personnel and/or its Patients to Global with respect to the Transaction Documents or otherwise (collectively, “Client Content”), infringes or violates the intellectual property or other proprietary rights of Global or any third party, and Global shall have no liability for any claims arising out of Client Content, including those claims based on infringement. Further, Client and its personnel grant to Global a nonexclusive license to use Client Content, as well as any trade names and/or trademarks of Client, to the extent necessary for Global to provide the IT Services, the SOW Services and any other products or services contemplated by the Transaction Documents (which includes, without limitation, the right to make copies, create illustrations, display personal and/or corporate name(s), and display other Client Content). Nothing in this Section 7.1 shall be deemed to limit Global’s rights under Section 10.4 of these Terms and Conditions or under the Business Associate Addendum.
5.2 Restrictions
Client acknowledges that in providing the IT Services, the SOW Services and any other products or services contemplated by the Transaction Documents, Global may utilize: (i) the Global name, the Global logo, certain domain names, product names associated with Global’ products and services and other trademarks; (ii) certain information, documents, software and other works of authorship; and (iii) other technology, software, hardware, products, processes, algorithms, user interfaces, website content, visual interfaces, interactive features, graphics, compilations, computer code, website elements, Written Documentation, know-how and other trade secrets, techniques, designs, inventions and other tangible or intangible technical material or information (which shall be collectively referred to as “Global IP”) and that the Global IP is covered by intellectual property rights owned or licensed by Global (“Global IP Rights”). Except as otherwise expressly permitted herein, Client and its personnel shall not, nor will they assist or encourage anyone else to: (i) sell, license, distribute, publicly perform or display, transmit, edit, adapt, modify, copy, translate or make derivative works based on the Global IP; (ii) disassemble, reverse engineer, or decompile any of the Global IP; or (iii) create Internet “links” to or from the Global IP, or “frame” or “mirror” any of Global’ content which forms part of the Global IP. Additionally, Client and its personnel are not entitled to and will not: (i) sell, grant a security interest in or make or transfer reproductions of the Global IP to other parties in any way, nor to lease or license the Global IP to others without the prior written consent of Global; (ii) emulate or redirect the communication protocols used by the Global IP; (iii) use or access the Global IP, IT Services or any other products or services contemplated by the Transaction Documents in order to build a competitive product or service, (iv) copy any features, functions or graphics of the Global IP, IT Services or any other products or services contemplated by the Transaction Documents or (v) exploit the Global IP or any of its parts for any commercial purpose without Global’ express written consent. Nothing in the Transaction Documents shall be construed to give Client or its personnel any right to inspect, possess, use, or copy the source code or object code used to create or constituting the Global IP. Neither Client nor its personnel shall apply any process, technique, or procedure designed to ascertain or derive the source code of the Global IP, or attempt to do any of the foregoing. Client shall not make any copies of any products or services provided by Global to Client. Client shall not alter, change or remove any proprietary notices or confidentiality legends placed on or contained within any products or services provided by Global to Client.
5.3 Ownership and Reservation of Rights
Other than as expressly set forth in the Transaction Documents, no license or other rights in the Global IP Rights are granted to Client or its personnel, and all such rights are hereby expressly reserved by Global. Additionally, and for avoidance of doubt, as between Global and Client, Global shall at all times retain sole and exclusive ownership of, or, as applicable, sole and exclusive rights as a licensee or sublicensee of, all of its copyrights, trademarks, trade names, trade dress, patents, software, source code, object code and other intellectual property rights with respect to the Global IP, including, without limitation, all of the proprietary material provided and/or displayed by Global at affiliated web sites, extranet, marketing materials or otherwise. Client acknowledges and agrees that the Global IP may contain certain licensed materials and Global’ licensors may independently protect their rights in the event of any violation of the Transaction Documents.
6. Remedies for Breach of Client’s Obligations. If Client or any of its personnel materially breaches any of its or their obligations under this Agreement, any other Transaction Document or any agreement between Global and Client, Global shall be permitted, at its sole discretion, to do any or all of the following (it being understood that such remedies are not exclusive of one another or any other remedies Global may have under any of the Transaction Documents or at equity or law): (i) terminate any of the Transaction Documents and any license or other right granted to Client with respect to Global’ products or services upon notice if such breach is not cured within thirty (30) days after notice of such breach is sent to Client, in which case all Fees, IT Services Fees, SOW Fees, Recurring Services Fees, and SOW Expenses incurred prior to the date of termination shall remain due and owing to Global; (ii) for unpaid Fees, IT Services Fees, Recurring Services Fees SOW Fees and SOW Expenses, assess late fees as provided in Section 3.5; and/or (iii) collect from Client reimbursement for all costs incurred by Global in collecting any Fees, IT Services Fees, Recurring Services Fees, SOW Fees, SOW Expenses or other monies owed to it by Client, or otherwise enforcing its rights under the Transaction Documents. Client further acknowledges and agrees that Global shall not be liable to Client or any third party for any exercise of Global’ rights under the Transaction Documents.
7. Business Associate Addendum. The Parties acknowledge and agree that Client is a Covered Entity and Global is a Business Associate under HIPAA and each Party shall comply with the Party’s respective obligations under HIPAA. Without limiting the foregoing, each Party shall comply with the Business Associate Addendum attached to these Terms and Conditions as Exhibit A (the “Business Associate Addendum”). The Business Associate Addendum is hereby incorporated into this Agreement.
8. Confidentiality.
8.1 Definition of Confidential Information
Subject to the terms and conditions of this Agreement, “Confidential Information” shall mean all information about the disclosing Party furnished by the disclosing Party to the receiving Party, that is designated as “Confidential” or “Proprietary” (x) by stamp or legend if communicated in writing or other tangible form or (y) otherwise orally at the time of disclosure with a written confirmation within twenty (20) days describing the Confidential Information communicated orally. Global’ Confidential Information also includes the technology, software, hardware, products, processes, algorithms, user interfaces, website content, visual interfaces, interactive features, graphics, compilations, website elements, Written Documentation, know-how and other trade secrets, techniques, designs, inventions and other tangible or intangible technical material or information made available by Global to Client or any of its personnel. “Confidential Information” excludes the information explicitly excluded under Section 10.3 as well as PHI as that term is defined in the Business Associate Addendum attached hereto. Notwithstanding any term of this Section 10 to the contrary, Global shall be permitted to disclose any of Client’s Confidential Information to the extent deemed appropriate by Global to provide the IT Services.
8.2 Confidential Information Terms. Except as expressly permitted in the Transaction Documents, each Party agrees to hold the other Party’s Confidential Information in strict confidence; provided that Global may disclose Confidential Information of Client to Global’ Representatives. Notwithstanding the above, either Party may disclose the other Party’s Confidential Information upon the order of any competent court or government agency; provided that prior to disclosure, to the extent possible, the receiving Party shall inform the other Party of such order and shall reasonably cooperate with the efforts of the disclosing Party, at the disclosing Party’s expense, to obtain a protective order or other action to protect the confidentiality of the Confidential Information. It is understood and agreed that in the event of a breach of this provision damages may not be an adequate remedy and each Party shall be entitled to injunctive relief to restrain any such breach, threatened or actual without the necessity of posting a bond or other security.
Client agrees that the terms and conditions, but not the existence, of the Transaction Documents shall be treated as Global’ Confidential Information and that no reference to the terms and conditions of the Transaction Documents or to activities pertaining thereto can be made in any manner without the prior written consent of Global; provided, however, that Client may disclose the terms and conditions of the Transaction Documents: (i) as required by any court or other governmental body; (ii) as otherwise required by law; (iii) to Client’s legal counsel; (iv) in confidence, to accountants, banks, and financing sources and their advisors; (v) in confidence, in connection with the enforcement of this Agreement or rights under this Agreement; or (vi) in confidence, in connection with a merger or acquisition or proposed merger or acquisition, or the like.
10.3 Non-Confidential Information. The term “Confidential Information” shall not include any information which: (i) is in the public domain at the time of disclosure or enters the public domain following disclosure through no fault of the receiving Party, (ii) the receiving Party, through competent evidence, can demonstrate knowledge prior to disclosure, (iii) is disclosed to the receiving Party by a third party legally entitled to make such disclosure without violation of any obligation of confidentiality or (iv) is independently developed by the receiving Party without reference to the disclosing Party’s Confidential Information as evidenced by the written records of the receiving Party.
9. Warranties & Disclaimers.
9.1 General Warranties.
9.1.1 Client represents and warrants that it is in good standing and duly licensed, and has procured all necessary licenses, registrations, approvals, consents, and any other communications in each jurisdiction as required to enable Client to conduct its business and to perform its obligations under the Transaction Documents to which it is a party. Client further represents and warrants that it has the legal power and requisite authority to enter into the Transaction Documents to which it is a party.
9.1.2 Client represents, warrants and covenants that it has complied and will comply with all applicable federal, state and local laws and regulations.
9.1.3 Client hereby agrees and acknowledges that Global is in no way acting as a medical provider with respect to any patient or any of client’s related parties and providers. Client further acknowledges and agrees that any and all responsibility for diagnosing, treating or providing any other medical care to any patient rests with the physicians and other healthcare professionals treating such patient.
9.1.4 client understands and agrees that its use, access, download, or otherwise obtaining information, materials, or data from a source other than Global is at its own discretion and risk and that it will be solely responsible for any damage to its or its personnel’s property or loss of data that results from the download or use of such material or data.
9.1.5 Client represents and warrants that, to the extent required by applicable law, Client and all of its Physicians, Physician Extenders and other personnel are duly licensed by the appropriate professional board or agency in the state where Client is located and/or performs services. Client shall provide evidence of such licensing to Global upon reasonable request. At any time that Client, the Physicians, Physician Extenders, or its personnel cease to be duly licensed or authorized to the extent required by applicable law, Client shall immediately so inform Global and such unlicensed party shall immediately cease accessing and using Global’ products and services.
9.2 Disclaimer of Warranties. Except as expressly provided herein or in the transaction documents, Global makes no warranty of any kind, whether express, implied, statutory, or otherwise. Global hereby specifically disclaims all implied warranties, including any warranty of merchantability, fitness for a particular purpose or non-infringement, to the maximum extent permitted by applicable law.
The entire risk arising out of use or performance of the IT Services, SOW Services and any other products or services contemplated by the Transaction Documents remains with the client. Global expressly disclaims any warranty for any service(s), product(s), good(s), information, data or materials provided by Global as part of the products or services contemplated by the Transaction Documents. Except as expressly provided herein, the Global IP, the IT Services, the SOW Services and any other products or services contemplated by the Transaction Documents are provided on an “as is” and “as available” basis, without warranty of any kind, either express or implied, including, without limitation, the implied warranties of merchantability, fitness for a particular purpose, or noninfringement. In addition, except as expressly provided herein, any third-party media, content, software, products, services or applications made available in conjunction with or through the IT Services, the SOW Services or other Global products or services are provided on an “as is” and “as available”, “with all faults” basis and without warranties or representations of any kind, either express or implied. Global does not warrant or make any representation regarding (a) the use or the results of the use of its IT Services. Nothing contained in the agreement shall be construed as a guaranty or warranty by Global. Global does not guarantee continuous, error-free, virus-free or secure operation of or access to its websites and the contents thereof, service elements or related software. Client assumes the entire risk with respect to the performance and results in connection with any products and services provided hereunder. Global shall have no liability for any communication between Global and the patients of Client, nor business impacts caused by outside vendors including and outside vendor’s ability to protect and secure systems and services where the vendor is tasked with providing this service. Client agrees that it shall not, and it shall cause its personnel to only submit any protected health information or protected personal information (a) to Global via a secure software; (b) to Global via secure, encrypted email transmissions, or (c) to Global via submissions through Global’s portal.
9.3 Limitations by Applicable Law. The limitations or exclusions of warranties, remedies, or liability contained in the Transaction Documents apply to client to the fullest extent such limitations or exclusions are permitted under the laws of the jurisdiction in which client and its personnel are located.
9.4 Basis of the Bargain. Client acknowledges and agrees that Global has offered its products and services and entered into the Transaction Documents to which it is a party in reliance upon the warranty disclaimers and the limitations of liability set forth herein, that the warranty disclaimers and the limitations of liability set forth herein reflect a reasonable and fair allocation of risk between Client and Global, and that the warranty disclaimers and the limitations of liability set forth herein form an essential basis of the bargain between Client and Global. Client acknowledges and agrees that Global would not be able to provide the IT Services or SOW services to Client on an economically reasonable basis without these limitations.
10. Limitation of Liability; Indemnification.
10.1 Limitation of Liability. In no event shall Global and its present and former subsidiaries’, affiliates’, parents’, directors’, officers’, employees’, and agents’ aggregate liability arising out of or related to the IT Services, the SOW services, any other products or services and/or any other contracted service or solution, whether in contract, tort (including negligence) or under any other theory of liability, exceed the fees actually paid by the Client to Global under this agreement during the three (3) month period immediately preceding the date the cause of action arose. Fees are comprised of IT services only and does not include hardware, software, SaaS, licenses, third-party vendor/reseller/passthrough costs, or any other fees paid beyond standard scope IT Services.
10.2 Exclusion of Consequential and Related Damages. In no event shall Global or its present and former subsidiaries, affiliates, parents, directors, officers, employees or agents have any liability to Client, its personnel or any third party for any lost profits, payer recoupments of reimbursements, refunds to payers or other lost reimbursements, loss of data, loss of use, costs of procurement of substitute goods or services, or for any indirect, special, incidental, punitive, or consequential damages however caused and, whether in contract, tort (including negligence) or under any other theory of liability whether or not Global has been advised of the possibility of such damage.
10.3 Limitation of Action. No action (regardless of form) arising out of the Transaction Documents may be commenced by Client against Global more than one (1) year after the cause of action arose.
10.4 Indemnification. Client shall indemnify and hold harmless Global and Global’s Affiliates and each of their respective officers, directors, employees and agents, from and against any and all damages, liabilities, penalties, interest, fines, losses, costs and expenses (including reasonable attorneys’ fees and expenses), arising, directly or indirectly, out of or relating to any claim or allegation based on (i) a breach of any of the Transaction Documents by Client or any of its personnel, (ii) the accuracy, quality, integrity, legality, reliability or appropriateness of any Client Data or other content or data provided by Client or its personnel to Global, (iii) violation of any applicable law, rule or regulation by Client or any of its personnel, (v) the diagnosis and/or treatment of any of Client’s Patients, (vi) the submission of any false or fraudulent claim to any Payer, (vii) Insurance Eligibility Verification, Appointment Reminder Services or Coding Activities and/or (viii) the negligent acts or willful misconduct of Client or its personnel.
10.5 Service Outages. In no event shall Global be held financially or otherwise responsible for any vendor-supplied hardware, software, platforms, communications, or other service outages outside the direct control of Global. The unavailability or inability to provide contracted services due to a vendor outage, security event, downtime, service availability issue, upstream issue, or any other situation otherwise shall be the responsibility of the impacted vendor exclusively.
11. Termination.
11.1 Termination.
11.1.1 By Client. Client may terminate this Agreement: (i) in the event of a material breach of this Agreement by Global, provided, that, Client provides written notice of such material breach to Global and such breach remains uncured sixty (60) days after Global’s receipt of such notice. In this regard, only the specific service item of the material breach may be terminated.
11.1.2 By Global. Global may terminate the Agreement: (i) as set forth in Sections of these Terms and Conditions; (ii) in accordance with the terms of the Business Associate Addendum, (iii) immediately if Client becomes insolvent or unable to pay its debts as they become due, or the subject of a petition in bankruptcy or any proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors, (iv) if Client defaults on any of its payment obligations under any of the Agreement documents and such payment default is not cured within ten (10) days after receiving written notice of such default from Global.
11.1.3 Changes. If, during the Term, any federal, state or local law or regulation shall be enacted, or any decree of any court or any other administrative agency shall be entered or other condition shall arise, which, in the reasonable opinion of Global, would result in a material change in the cost of providing IT Services to Client, Global and Client shall promptly enter into negotiations to revise the IT Services Fees to provide Global with appropriate compensation under this Agreement. If such negotiations fail to result in an agreement between Global and Client as to amended fees within thirty (30) days after Client receives notice of the event giving rise to Client’s duty to negotiate set forth above, then Global shall have the right to terminate this Agreement upon thirty (30) days prior written notice to Client.
11.2 Outstanding Fees. Termination shall not relieve Client of the obligation to pay any fees or expenses accrued or payable to Global prior to the effective date of termination or prior to the expiration of The Ninety Day Wind Down Period (as defined below).
11.3 Effect of Termination.
11.3.1 Generally. Termination of this Agreement for any reason shall not affect Global’s right to recover damages for events occurring before termination. Upon termination or expiration of this Agreement for any reason, Client shall not use or access, directly or indirectly, any Global IP. If Client has any copies of any Global IP, Client shall either destroy or return to Global all such copies along with a certificate signed by Client that all such copies have been either destroyed or returned, respectively, and that no copy or any part of any Global IP has been retained by Client in any form.
11.3.2 IT Service Wind-Down. In the event of the expiration or termination of this Agreement, Global may, in its sole discretion, continue to provide services for previously contracted services until the ninetieth (90th) day following the effective termination or expiration date (“The Ninety Day Wind Down Period”). Global shall be entitled to receive payment of its IT Services Fees for all services provided during The Ninety Day Wind Down Period for a period of ninety (90) days after the date of termination or expiration of this Agreement. Payment shall be made to Global on a monthly basis and each payment shall be Due On Receipt. All outstanding invoices must be current before any IT Service Wind-Down, transition planning, documentation hand-off, or any other transition or continuity services are provided, all of which are billable as a project at Global’s discretion.
11.4 Survival. Sections 1, 3.4, 3.5, 3.9, 3.11, 3.12, 6.5, 6.6, 6.7, 6.8, 6.9, 7, 8, 9, 10, 11, 12, 13 and 14 shall survive the expiration or termination of this Agreement for any reason.
12. General Provisions.
12.1 Relationship of the Parties. None of the Transaction Documents create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties and the status of the Parties shall be independent parties to a contractual arrangement. Neither Party shall have the authority to bind the other Party by contract or otherwise.
12.2 Benefit to Others. The representations, warranties, covenants and agreements contained in the Transaction Documents are for the sole benefit of the Parties and their respective successors and permitted assigns, and they are not to be construed as conferring any rights on any other Persons, including, but not limited to, third party rights for Client’s Patients.
12.3 Notices. Any notice required by this Agreement or given in connection with therewith, shall be in writing and shall be given (i) if to Global, to Global Vision, Inc., 4 Continental Drive, Exeter, NH 03833, by personal delivery or by certified mail, postage prepaid, or recognized overnight delivery services with proof of delivery and (ii) if to Client, to the Client’s address (or email address) set forth in this Agreement or such other address (or email address) as may be provided in writing from time to time by email or by personal delivery or by certified mail, postage prepaid, or recognized overnight delivery services with proof of delivery.
12.4 Waiver and Cumulative Remedies. No failure or delay by either Party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a Party at law or in equity.
12.5 Force Majeure. Global shall not be liable for failure or delay in performing its obligations hereunder if such failure or delay is due to a force majeure event or other circumstances beyond its reasonable control, including, without limitation, acts of any governmental body, war, cyber war or attack, terrorism, insurrection, sabotage, embargo, fire, flood, tropical storm, earthquake, tornado, hurricane, labor disturbance, interruption of or delay in transportation, unavailability of third party services, failure of third party software or services or inability to obtain, supplies or power used in or equipment needed for provision of the IT Services, the SOW Services or any other products or services contemplated by any of the Transaction Documents (each, a “Force Majeure Event”).
12.6 Inspection and Audit Rights. Global shall have the right to audit or inspect and copy the books and records of Client to ensure compliance with Client’s obligations under this Agreement. In the event of any investigation, proceeding or litigation involving any governmental entity, Client shall make available to Global for inspection and copy any clinical documentation reasonably necessary for Global to respond, participate or defend itself in any such investigation, proceeding or litigation.
12.7 Severability. If any provision of this Agreement is held by a court or arbitrator of competent jurisdiction to be unenforceable, such provision shall be changed by the court or by the arbitrator and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect, unless the modification or severance of any provision has a material adverse effect on a Party, in which case such Party may terminate this Agreement by notice to the other Party.
12.8 Assignment. Neither Party may assign any of its rights or obligations hereunder or under any other Transaction Document, whether by operation of law or otherwise, without the prior express written consent of the other Party. Notwithstanding the foregoing, Global shall be permitted to assign any of the Transaction Documents without the prior written consent of Client: (i) to an Affiliate, parent company or subsidiary or (ii) in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Any attempt by a Party to assign its rights or obligations under any of the Transaction Documents in breach of this Section 14.8 shall be void and of no effect. Subject to the foregoing, each of the Transaction Documents shall bind and inure to the benefit of the Parties, their respective successors and permitted assigns.
12.9 Governing Law. Except as otherwise provided herein, each of the Transaction Documents shall be governed by, and construed in accordance with, the laws of the State of New Hampshire.
12.10 Venue. The federal courts of the United States in and for the District of New Hampshire and the state courts of the State of New Hampshire shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to any of the Transaction Documents. Each Party hereby consents to the jurisdiction of such courts and waives any right it may otherwise have to challenge the appropriateness of such forums, whether on the basis of the doctrine of forum non conveniens or otherwise.
12.11 Enforcement Costs. If any legal action or other proceeding is brought for the enforcement or interpretation of any of the Transaction Documents, or because of an alleged dispute, breach, default or misrepresentation in connection with any provision of the Transaction Documents, the prevailing Party shall be entitled to recover reasonable attorneys’ fees, court costs and all expenses incurred in that action or proceeding and at all levels of trial and appeal, in addition to any other relief to which such Party may be entitled.
12.12 Third Party Arrangements. Client acknowledges and agrees that it shall be solely responsible for performance of all of its duties, obligations, and covenants arising under the Transaction Documents. In the event that Client enters into an arrangement with any other individual or entity to fulfill all or any part of its payment obligations pursuant to the Transaction Documents (“third party arrangement”), Client represents and warrants that any such third party arrangement shall not affect the obligations of Client to Global pursuant to the Transaction Documents. Client further represents and warrants that any such third party arrangement shall be in compliance at all times with all applicable federal, state, and local laws, regulations and ordinances including, without limitation, the Medicare and Medicaid Anti-Fraud and Abuse Amendments to the Social Security Act and the Stark Law. Client acknowledges and agrees that Global is under no obligation to accept any payment from any third party, which is unsatisfactory to Global in its good faith business judgment. The Client agrees that it shall be responsible for promptly reimbursing Global for all fees required by the American Medical Association or other similar organization to be paid by Global to such organization relating to the Client and its Patients, employees, representatives, consultants, contractors or agents use of the IT Services.
12.13 Entire Agreement and Construction. The Transaction Documents constitute the entire agreement between the Parties as to their subject matter, and supersede all previous and contemporaneous agreements, proposals or representations, written or oral, concerning such subject matter. Except as otherwise set forth therein, no modification, amendment, or waiver of any provision of the Transaction Documents shall be effective unless in writing and signed by the Party against whom the modification, amendment, or waiver is to be asserted. Under no circumstances shall the terms of any purchase order submitted by Client to Global be deemed binding upon Global.
12.14 Counterparts. Each of the Transaction Documents requiring execution by a Party hereto may be executed in one or more counterparts, which may be delivered by fax or other electronic transmission, including email, each of which shall be deemed an original and which taken together shall form one legal instrument
.
12.15 Headings. Headings used in each of the Transaction Documents are provided for convenience only and shall not be used to provide meaning or intent.
12.16 Due Execution. Client acknowledges that Global shall not be deemed bound by this Agreement, any Addendum thereto, any Statement of Work thereunder or any other Transaction Documents requiring execution unless and until the same shall have been duly executed by an authorized representative of Global and Client.
Exhibit A – Business Associate Addendum
I. GENERAL PROVISIONS
Section 1.1. Applicability. This Business Associate Addendum (this “Addendum”) relates to Protected Health Information received by Global from or on behalf of the Client (“PHI”).
Section 1.2. HIPAA Amendments. The Parties acknowledge and agree that the Health Information Technology for Economic and Clinical Health Act and its implementing regulations impose requirements with respect to privacy, security and breach notification applicable to Business Associates (collectively, the “HITECH BA Provisions”). The HITECH BA Provisions and any other future amendments to HIPAA affecting Business Associate Agreements are hereby incorporated by reference into this Addendum as if set forth in this Addendum in their entirety, effective on the later of the effective date of this Addendum or such subsequent date as may be specified by HIPAA.
Section 1.3. Regulatory References. A reference in this Addendum to a section in HIPAA means the section as it may be amended from time-to-time. Capitalized terms used in this Addendum without definition shall have the meanings given to them by HIPAA or by this Agreement, as applicable.
II. OBLIGATIONS OF Global
Section 2.1. Use and Disclosure of PHI. Global may use and disclose PHI as permitted or required under this Agreement (including this Addendum) or as Required by Law, but shall not otherwise use or disclose PHI. Global shall not use or disclose PHI received from the Client in any manner that would constitute a violation of HIPAA if so used or disclosed by the Client (except as set forth in Sections 2.1(a), (b) and (c) of this Addendum). To the extent Global carries out any of the Client’s obligations under the HIPAA Privacy Rule, Global shall comply with the requirements of the HIPAA Privacy Rule that apply to the Client in the performance of such obligations. Without limiting the generality of the foregoing, Global is permitted to use or disclose PHI as set forth below:
(a) Global may use PHI internally for Global’ proper management and administrative services or to carry out its legal responsibilities;
(b) Global may disclose PHI to a third party for Global’ proper management and administration, provided that the disclosure is Required by Law or Global obtains reasonable assurances from the third party to whom the PHI is to be disclosed that the third party will (1) protect the confidentially of the PHI, (2) only use or further disclose the PHI as Required by Law or for the purpose for which the PHI was disclosed to the third party and (3) notify Global of any instances of which the person is aware in which the confidentiality of the PHI has been breached;
(c) Global may use PHI to provide Data Aggregation services as defined by HIPAA;
(d) Global may use PHI to create de-identified health information in accordance with the HIPAA de-identification requirements. Without limiting any other rights of Global under this Agreement, Global may use, create, sell, disclose to third parties and otherwise commercialize de-identified health information for any purposes not prohibited by law. Global owns all right, title and interest in such de-identified health information and any data, information and material created by Global with such de-identified health information. For the avoidance of doubt, the second and third sentences of this Section 2.1(d) shall survive the expiration or earlier termination of this Agreement;
(e) Global may use and disclose PHI to develop, create, improve, update or otherwise change currently contracted for or new products and services for Client and other customers of Global;
(f) Global may use and disclose PHI for purposes of obtaining an authorization to use and disclose PHI or any other permission from an individual; and
(g) Global may use and disclose PHI for Research purposes as permitted by applicable law.
Section 2.2. Safeguards. Global shall use reasonable and appropriate safeguards to prevent the use or disclosure of PHI except as otherwise permitted or required by this Addendum. In addition, Global shall implement Administrative Safeguards, Physical Safeguards and Technical Safeguards that reasonably and appropriately protect the Confidentiality, Integrity and Availability of PHI transmitted or maintained in Electronic Media (“EPHI”) that it creates, receives, maintains or transmits on behalf of the Client. Global shall comply with the HIPAA Security Rule with respect to EPHI.
Section 2.3. Minimum Necessary Standard. To the extent required by the “minimum necessary” requirements of HIPAA, Global shall only request, use and disclose the minimum amount of PHI necessary to accomplish the purpose of the request, use or disclosure.
Section 2.4. Mitigation. Global shall take reasonable steps to mitigate, to the extent practicable, any harmful effect (that is known to Global) of a use or disclosure of PHI by Global in violation of this Addendum.
Section 2.5. Subcontractors. Global shall enter into a written agreement meeting the requirements of 45 C.F.R. §§ 164.504(e) and 164.314(a)(2) with each Subcontractor (including, without limitation, a Subcontractor that is an agent under applicable law) that creates, receives, maintains or transmits PHI on behalf of Global. Global shall ensure that the written agreement with each Subcontractor obligates the Subcontractor to comply with restrictions and conditions that are at least as restrictive as the restrictions and conditions that apply to Global under this Addendum.
Section 2.6. Reporting Requirements.
(a) If Global becomes aware of a use or disclosure of PHI in violation of this Agreement by Global or by a third party to which Global disclosed PHI, Global shall report any such use or disclosure to the Client without unreasonable delay.
(b) Global shall report any Security Incident involving EPHI that is not an Unsuccessful Security Incident (as defined below) of which Global becomes aware without unreasonable delay. Global hereby notifies Client of pings and other broadcast attacks on a firewall, denial of service attacks, port scans, unsuccessful login attempts, interception of encrypted information where the encryption key is not compromised, and other Unsuccessful Security Incidents. Global will provide additional information about Unsuccessful Security Incidents on a reasonable basis, orally or in writing, if requested by Client. If the HIPAA security regulations are amended to remove the requirement to report Unsuccessful Security Incidents, the requirement hereunder to report Unsuccessful Security Incidents will no longer apply as of the effective date of the amendment. “Unsuccessful Security Incident” means a Security Incident that does not involve unauthorized access, use, disclosure, modification or destruction of EPHI or interference with an Information System in a manner that poses a material threat to the Confidentiality, Integrity, or Availability of the EPHI.
(c) Global shall, following the discovery of a Breach of Unsecured PHI, notify the Client of the Breach in accordance with 45 C.F.R. § 164.410 without unreasonable delay and in no case later than sixty (60) days after discovery of the Breach.
Section 2.7. Access to Information. If Global receives a request for access to PHI directly from an Individual, Global shall forward such request to Client within ten (10) business days. Client shall have the sole responsibility for determining whether to approve a request for access to PHI and to provide such access to the Individual.
Section 2.8. Availability of PHI for Amendment. If Global receives a request for amendment to PHI directly from an Individual, Global shall forward such request to Client within ten (10) business days. Client shall have the sole responsibility for determining whether to approve an amendment to PHI and to make such amendment.
Section 2.9. Accounting of Disclosures. Within thirty (30) business days of written notice by Client to Global that it has received a request for an accounting of disclosures of PHI (other than disclosures to which an exception to the accounting requirement applies), Global shall make available to Client such information as is in Global’ possession and is required for Client to make the accounting required by 45 C.F.R. § 164.528. If Global receives a request for an accounting directly from an Individual, Global shall forward such request to Client within seven (7) business days. Client shall have the sole responsibility for providing an accounting to the Individual.
Section 2.10. Availability of Books and Records. Following reasonable advance written notice, Global shall make its internal practices, books and records relating to the use and disclosure of PHI received from, or created or received by Global on behalf of, Client available to the Secretary for purposes of determining Client’s compliance with HIPAA.
III. Obligations of THE CLIENT
Section 3.1. Permissible Requests. The Client shall not request Global to use or disclose PHI in any manner that would not be permissible under HIPAA if done by Client.
Section 3.2. Minimum Necessary Information. When Client discloses PHI to Global, Client shall provide the minimum amount of PHI necessary for the accomplishment of Client’s purpose.
Section 3.3. Appropriate Use of PHI. Client and its employees, representatives, consultants, contractors and agents shall not submit any Protected Health Information to Global (A) outside of the Software, or secure, encrypted email transmissions.
Section 3.4. Permissions; Restrictions. Client warrants that it has obtained and will obtain any consent, authorization and/or other legal permission required under HIPAA and other applicable law for the disclosure of PHI to Global. Client shall notify Global of any changes in, or revocation of, the permission by an Individual to use or disclose his or her PHI, to the extent that such changes may affect Global’ use or disclosure of PHI. Client shall not agree to any restriction on the use or disclosure of PHI under 45 CFR § 164.522 that restricts Global’ use or disclosure of PHI under this Agreement (including under this Addendum) unless such restriction is Required By Law or Global grants its written consent.
Section 3.5. Notice of Privacy Practices. Except as Required By Law, with Global’ consent or as set forth in this Agreement, Client shall not include any limitation in Client’s notice of privacy practices that limits Global’ use or disclosure of PHI under this Agreement (including this Addendum).
IV. Termination of this Agreement
Section 4.1. Addendum Term. Without limiting any other term of this Agreement (including this Addendum), this Addendum shall continue in full force and effect for so long as Global maintains any PHI.
Section 4.2. Termination Upon Breach of this Addendum. Any other provision of this Agreement notwithstanding, this Agreement may be terminated by either Party (the “Non-Breaching Party”) upon ninety (90) days written notice to the other Party (the “Breaching Party”) in the event that the Breaching Party materially breaches this Addendum in any material respect and such breach is not cured within such ninety (90) day period. Any determination of whether a material breach has been cured shall be made by Global in its sole discretion.
Section 4.3. Return or Destruction of PHI upon Termination. Upon termination of this Agreement, Global shall return or destroy all PHI received from Client or created or received by Global on behalf of Client and which Global still maintains as PHI. Notwithstanding the foregoing, to the extent that Global determines, in its sole discretion, that it is not feasible to return or destroy such PHI, this Addendum (including, without limitation, Section 2.1(d) of this Addendum) shall survive termination of this Agreement and such PHI shall be used or disclosed solely for such purpose or purposes which prevented the return or destruction of such PHI.[/vc_column_text][/vc_column][/vc_row]