Loading...
R2006-160 09-25-06 RESOLUTION NO. R2006.160 A RESOLUTION OF THE CITY COUNCil OF THE CITY OF PEARlAND, TEXAS, RENEWING A CONTRACT WITH INTERMEDlX FOR EMS BilLING SERVICES AND APPROVING AN ADDENDUM FOR THE CITY'S PARTICIPATION IN THE TRIPTIX PROGRAM. BE IT RESOLVED BY THE CITY COUNCil OF THE CITY OF PEARlAND, TEXAS: Section 1. That certain contract renewal for EMS billing services, a copy of which is attached hereto as Exhibit "A" and made a part hereof for all purposes, is hereby authorized and approved. Section 2. That certain addendum authorizing the City's participation in the Triptix Program, a copy of which is attached hereto as Exhibit "8" and made a part hereof for all purposes, is hereby authorized and approved. Section 3. That the City Manager or his designee is hereby authorized to execute and the City Secretary to attest a contract renewal for EMS billing services and an addendum to the contract authorizing the City's participation in the Triptix Program. PASSED, APPROVED and ADOPTED this the 25th day of -\ __--1:. TOM REID MAYOR ATTEST: APPROVED AS TO FORM: O~ Jr. at- DARRIN M. COKER CITY ATTORNEY Exhibit "A" Resolution 2006-160 9/25/06 SERVICE AGREEMENT This Service Agreement ("Agreement") is entered into by and between Intermedix, Inc., a Texas corporation with offices at 16225 Park Ten Place Drive, Suite 805, Houston, Texas 77084 (hereinafter referred to as "Intermedix"), and the provider of emergency medical and/or ambulance transportation services as identified and with the address as set out on the signature page hereto ("Provider"). This Agreement shall be effective as of the date the last party to this Agreement executes it (the "Effective Date"). Recitals WHEREAS, Intermedix is a service company in the business of providing billing, statistical data and related services to its clients; and WHEREAS, Provider, among other things, provides emergency medical and ambulance services; and WHEREAS, Intermedix and Provider, have determined that it is in their mutual best interests to enter into this Agreement. NOW, THEREFORE, in consideration of the mutual promises herein contained, the parties hereto agree as follows: Article I Engagement; Term of Engagement Section 1.01 Provider Engages Intermedix. Provider hereby agrees to engage Intermedix (and Intermedix consents to be so engaged) as its sole and exclusive agent for billing and collection activities during the Term (as such term is hereinafter defined) with respect to the collection of all charges and fees relating to emergency medical responses, patient encounters by Provider's EMT (or similar) personnel and/or ambulance or aeromedical ambulance transportation services provided by Provider (collectively, the "Covered Services"). Section 1.02 Provider Agrees to Pay Compensation as Set out in Section 2.01. In consideration for Intermedix's agreement to be engaged by Provider and in further consideration of the considerable time, expense and effort undertaken by Intermedix in connection with its engagement by Provider (including, without limitation, as appropriate, hiring additional personnel, obtaining additional licenses for intellectual property and acquiring additional technology), Provider agrees to (a) pay Intermedix pursuant to the provisions of Section 2.01 and (b) provide the minimum notices for termination as set forth herein. Section 1.03 Exclusivity of Relationship. Provider understands and agrees that Intermedix would only offer its services to Provider on the terms and conditions under this Agreement if it were guaranteed that it were the only provider of billing service for the Covered Services or were paid as if it had billed all of the Covered Services. Thus, Provider agrees that it will be obligated to pay Intermedix as if Intermedix had billed for any Covered Services during the Term whether or not Provider determines to collect for the provision of the Covered Services in some other way. Section 1.04 Initial Term and Extensions. The initial term ofthis Agreement shall be for a period of four years, unless either party terminates it earlier pursuant to the terms and provisions hereof - 1 - (the "Initial Term"). The Agreement shall continue for additional one-year periods following the Initial Term (the Initial Term, together with each such one-year period being, collectively, the "Term") if neither party to this Agreement provides 30-days advance, written notice of termination to the other prior to the end of the Term. Article II Compensation Section 2.01 Rates of Compensation. In consideration of Intermedix's services rendered during the Term, as such term is defined below), Intermedix shall be compensated and paid in accordance with the following schedule: (a) 11.65% of the total amount collected on each account. (b) No additional charges if payment is made by a credit card. Section 2.02 Invoicing. Intermedix shall provide a monthly invoice to Provider by the first business day of each month for (a) amounts due for services rendered and collections received in the previous month, (b) additional amounts due and owing, and (c) all previously invoiced and uncollected amounts. Section 2.03 Payment of Invoices. Provider agrees that it will pay each invoice within 10 days of receipt, subject to the provisions of Section 2.04 hereof. Section 2.04 Disputes Regarding Invoiced Amounts. Provider agrees that it has 10 days from the receipt of each invoice to dispute the amounts set forth on such invoice. To dispute any invoice amount, Provider will provide Intermedix notice of the amount disputed, together with information sufficient for Intermedix to make a determination of the validity of the dispute. Without the provision of such information, Provider and Intermedix agree that Provider will not have disputed the invoiced amount. After each 10-day period with respect to each invoice, the amounts set forth as due and owing under such invoice shall be deemed to be valid and the amounts owing for such invoices will not be disputable in any way. Section 2.05 Past-Due Amounts. Provider agrees that, it shall pay 8% interest on all past due amounts that are no longer subject to dispute pursuant to Section 2.04, together with costs of collection, including attorneys fees. Section 2.06 Information Regarding Provider-Collected Accounts. No later than the 10th day of each calendar month, Provider shall forward to Intermedix a report listing all payments received by Provider on accounts during the prior month Section 2.07 Payment for all Collections. Except as otherwise provided in this Agreement, in connection with the Intermedix's status as Provider's exclusive billing agent, Intermedix shall be entitled to receive compensation pursuant to the provisions of Section 2.01 for all accounts relating to patient encounters occurring during the Term, whether or not they are billed by Intermedix and whether or not they are collected during the Term. Section 2.08 Direct Payments to Provider. Provider agrees that it will forward to Intermedix copies of checks, or other documentation requested by Intermedix relating to the subject matter of this Agreement, within 10 days of the date of receipt of those payments. - 2- Article III Rate Schedule; Collection Efforts Section 3.01 Charges for Services Rendered. Provider instructs Intermedix to utilize the attached rate schedule. Unless otherwise advised in writing, Provider authorizes Intermedix to adjust rates on the attached rate schedule by the Ambulance Inflation Factor (AIF) as published by the Centers for Medicare & Medicaid Services (CMS) annually. Provider acknowledges that this adjustment will take effect the first day of January after the annual AIF is published by CMS. Notwithstanding the foregoing, Provider and Intermedix agree that Provider may change any rate specified on the attached schedule from time to time and at any time upon 30 days written notice to Intermedix. Section 3.02 Direction for Submission of Charges. Provider and Intermedix agree that Provider will be deemed to have directed Intermedix to submit a patient encounter for payment by the appropriate payer when the record is finalized on Intermedix' s computer system and/or otherwise tagged for submission for payment. At that time, Provider agrees that it will be deemed to have represented and warranted to Intermedix that (a) all conditions precedent for submission for payment have been satisfied and (b) that Provider has all other paperwork, information or required forms on hand in its records. Provider understands and agrees that it is ultimately responsible for the sufficiency and adequacy of its records when they are submitted for payment. Section 3.03 Collection of Charges, Co-Payments. Intermedix will attempt to collect all amounts due and owing Provider. However, Provider, may, at any time, provide alternative instructions with respect to any account, any payment amount or any arrangement to be made. This Section 3.03 will not give the Provider the right to give Intermedix instructions with respect to more than 15 accounts at any time. If Provider makes instructions with respect to more than 15 accounts, Intermedix may, in its sole and complete discretion, deem Provider to be in material default under this Agreement. Section 3.04 Alternative Collection Arrangements when Full Payment Unavailable. Intermedix will have the right, on Provider's behalf, at its sole option, to enter into an alternative collection arrangement with respect to any patient encounter if: (a) The total payments are for at least 80 percent of the amount of the bill and the length of the payments does not exceed 18 months; (b) An insurance company offers at least 70% of the total amount billed with a stipulation that the insured not be billed for the balance; or (c) Intermedix is able to make any arrangements for the payment of a patient account that provide a substantially similar economic benefit to Provider, as Intermedix determines in its sole and complete discretion. Any other offers for extended payments will be forwarded to Provider for its decision. Section 3.05 Location for Payments. Intermedix may accept payments at any location designated by it and may accept payments in the name of Intermedix or Provider. - 3 - Section 3.06 Scope of Collection Efforts. If reasonable efforts have been made to collect an account and such efforts have not been successful, Intermedix shall have the right to terminate collection efforts and close the account as an unpaid debt. As used herein "reasonable efforts" shall be defined to mean at least 120 days of active collection efforts in the ordinary course of business. In addition, Intermedix may terminate or suspend collection efforts in the event that Provider has supplied Intermedix with materially incomplete or inaccurate billing and/or patient information. Absent contrary instructions from Provider with respect to any patient account, the accounts that Intermedix has deemed to be uncollectible pursuant to this Section 3.06, will be forwarded to a third-party collection agency for further collection efforts. Intermedix will invoice Provider, and Provider agrees to pay, 33% of collected amounts on accounts sent by Intermedix to the third-party collection agency. Section 3.07 Telephone Support. Intermedix will provide patients and personnel of Provider with telephone support services during normal business hours (Monday - Friday from 9:00 a.m. to 5:00 p.m.) except on public holidays or other holidays as established by Intermedix. Article IV Medical Records; Reporting to Department of State Health Services Section 4.01 Medical Records. Provider shall forward all original medical records (or true and correct copies of them) to Intermedix within 14 days of the patient encounter generating them. Intermedix will enter such records into its medical system and/or make copies of such records before returning them within a reasonable time period of Intermedix's receipt of same. Section 4.02 Texas Department of State Health Services. Intermedix will be responsible for reporting all required information regarding patient encounters and trauma to the Texas Department of State Health Services. Section 4.03 Provider is Custodian of Records. In connection with the services it provides under this Agreement, Intermedix maintains extensive copies of Provider's medical records. However, Intermedix does not maintain copies of all records that Provider Maintains, further, as required by Federal and State laws, even though Intermedix maintains copies of records provided to it, Provider maintains primary responsibility for its records and their sufficiency. Section 4.04 Provision of Copies. From time-to-time, patients or their representatives may request copies of medical records maintained on the Web Access System (as such term is defined below) from Provider or Intermedix. Provider agrees that Intermedix may charge for the provision of copies of medical records maintained on its Web Access System. (Intermedix agrees that Provider will not be charged for the provision of those records.) The current charge for the gathering and preparation of those records is $40.00. However, from time to time, legal requirements may require Intermedix to charge more or less for those services. Information regarding the provision of these records will be available via the Web Access System. Article V Data Management; Data Entry; Additional Records on Web Access System Section 5.01 Web Access System. Intermedix will grant to Provider electronic access to all records on file regarding Provider including, but not limited to, medical records, billing records, correspondence regarding accounts, and records on personnel including credentials. It shall be the responsibility of Provider to provide its own necessary computer equipment and computer - 4 - communication equipment capable of connecting to the Internet and accessing Intermedix's Internet server (hereinafter referred to as "Web Access System"). Section 5.02 Training for Web Access System. Upon written request of Provider, Intermedix will provide an annual on site training class on the use of the Web Access System. Section 5.03 Limitation of Access to Web Access System. Access to data in the Web Access System regarding Provider shall be limited to the employees, representatives, and agents of Intermedix and the authorized personnel of Provider. A completed and signed access form for each of Provider's personnel authorized to access Web Access System must be submitted to and approved by Intermedix. Intermedix shall use its best efforts to maintain the security of the Web Access System, but shall not be responsible for negligence with respect to password security related to Provider personnel or other breaches beyond the reasonable control of Intermedix. Section 5.04 Data Entry Devices. Provider and Intermedix understand and agree that lntermedix may make available data entry devices (hand-held devices, tablet pc's and/or other data entry devices for the collection and/or transmission of medical information). Provider understands and acknowledges that any of the aforementioned data entry devices provided by Intermedix may require an additional fee(s) over and above the compensation rate quoted in Section 3.01. Provider and Intermedix agree that the increased fee(s) will be negotiated and added to this service agreement as an addendum at that time. Failure to reach a pricing arrangement for the additional devices will not constitute a breach of this base service agreement by either party. Further, in connection with the potential provision of such devices, Provider agrees: (a) Provider will be responsible for the loss or damage to such devices. Provider agrees to pay (i) the cost of repairs of any such device provided to it or (ii), if the device is irreparable, lost or stolen, for the replacement cost of the device. Intermedix agrees that Provider may obtain insurance for such payments provided that Intermedix is named as a beneficiary under such plan. (b) Provider may be required to enter into additional agreements with the makers of third-party medical devices (monitors, scanners, EKG machines, etc.) with respect to the transmission of information between the medical device and the data entry device. Provider understands and agrees that Intermedix will not be able to provide data entry devices unless and until agreements are entered into with the third- party manufacturers of such medical devices. Provider understands and agrees that its failure to enter into or reach agreements with such third-parties (and any and all consequences of such failure) shall not be deemed to be a default of Intermedix under this Agreement or any other arrangement between Provider and Intermedix. Provider further understands and agrees that the failure to enter into such agreements with these third parties may hinder Provider's use of certain software features that might otherwise be available to it (for instance, a direct data connection between a medical device and the data entry device). (c) Provider may be required to obtain new or different medical or other equipment capable of communicating with the data entry devices. Provider understands and agrees that such new or different medical or other equipment must be obtained at Provider's sole cost and expense. (d) Provider may request Intermedix to support additional medical or other devices. Provider understands and agrees that the costs of developing an interface may be significant and may involve the payment of royalties to the third-party manufacturers of the device. Provider further understands and agrees that Intermedix has no obligation to undertake the development of interfaces with additional medical or other devices. - 5 - Section 5.05 Internal Audit Function. lntermedix may review individual patient encounter documents and make recommendations, if any, for improvements of the data the records contain. By way of example, such recommendations may include spelling and grammatical comments, adequacy of documentation for local, state and federal requirements, adequacy of documentation for billing requirements, and compliance with the protocols and standard operating procedures of Provider. Although lntermedix may attempt to identify all errors and omissions, it will not be responsible for inadequately evaluating a patient record. Provider agrees that it and its medical director have the final responsibility for reviewing each run record for accuracy, adequacy, mistakes, treatment errors, etc. All quality control information, comments and suggestions Intermedix produces will be made available to Provider via Web Access System. Section 5.06 Statistical Reporting. Statistical and financial data reports will be available on the Web Access System at all times that the Web Access System is available. The format and content of the statistical data will be established and defined by lntermedix and such reports may be added, modified or deleted without notice to Provider. Notwithstanding the foregoing, Provider may request specific, custom reports to be available to it at an additional charge to be negotiated between lntermedix and Provider. Section 5.07 Acknowledgement with Respect to Reports. With respect to each report generated by the Web Access System, Provider acknowledges and agrees: (a) Each report represents a "snapshot" of a moment in time, and, as such, the snapshot may not be accurate with respect to financial results on the whole. (b) The underlying data may be subject to correction from time-to-time, which may change the results of the report or its interpretation. (c) The data represented in the report represents only a limited portion of all data available regarding the Provider's business. Provider thus further acknowledges and agrees that any particular report may not accurately represent the Provider's then-current or future financial condition. Article VI Indemnification, Insurance and Fidelity Bond Section 6.01 Indemnification and Hold Harmless. lntermedix shall indemnify and hold harmless Provider from and against claims, damages, losses and expenses, including but not limited to attorneys' fees, arising out of or resulting from lntermedix's performance, but only to the extent caused by the willful misconduct or the negligent acts or omissions of lntermedix. The indemnification provided for herein shall not be applicable to any claim of adjustment or request for reimbursement made by an insurance company or any servicing agency for Medicare or Medicaid that may be made as the result of an audit of claims made or governmental regulations or laws, including lntermedix' s fees charged, except for any adjustments or claims for reimbursement made as a direct result of lntermedix's error. lntermedix warrants that all services provided and the manner in which they are provided shall be in accordance with all state, federal and other applicable laws and regulations and indemnifies Provider as to any claims, damages, losses and expenses arising from or resulting from any breach of this warranty. Section 6.02 Fidelity Bond. lntermedix shall keep and maintain, during the term of this Agreement: A fidelity bond with a qualified insurer of no less than $50,000.00, general liability insurance - 6 - with a general aggregate of no less than $1,000,000 and a per occurrence limit of not less than $500,000, and an Umbrella Liability and Errors and Omissions insurance in the amount of $1,000,000. Article VII Confidentiality Section 7.01 Confidentiality. The terms and conditions of this Agreement are confidential and neither party shall release any of the terms hereof to any third party without the prior written consent of the other party, except to the extent necessary to comply with law, the valid order of a court of competent jurisdiction, or the valid order or requirement of a governmental agency. Notwithstanding the foregoing, either party may, without the prior written consent of the other party, disclose the existence of a contractual relationship between the parties. Section 7.02 Intellectual Property. Provider agrees that the equipment, computer hardware and software, billing and collection processing, and other related systems and equipment are the property and trade secrets of Intermedix, and that Provider will not release any information regarding such trade secrets to any third party without the prior written consent of Intermedix. Provider further agrees that, in connection with the use of certain data entry devices, Provider may gain access to the intellectual property of third parties. Provider understands and agrees that it may be required to enter into agreements with respect to such intellectual property in order to use such equipment. Provider agrees to enter into such arrangements at Intermedix's request. Section 7.03 HIPAA Compliance. Provider and Intermedix further agree that the provisions of Exhibit "A", with respect to Protected Health Information are incorporated herein by reference as if set forth herein at length. Article VIII Termination of the Agreement Section 8.01 Terminations of Agreement without Cause. During the initial 120 days of the Initial Term, either party may, without cause, terminate this agreement with 30 days advance written notice to the other party. In addition, this Agreement may be terminated by either party, without cause, upon 90-days advance, written notice to the other party. Section 8.02 Termination of this Agreement with Cause. Either party may terminate this agreement with "Cause" if the other party is in "default" under the terms and conditions of this Agreement and the default is not cured within 60 days of receipt of written notice specifying the default. For purposes of this contract, "in default" shall mean: (a) in the case of Intermedix, (i) the failure to provide timely processing of patient encounters after Intermedix's receipt of legally sufficient information regarding such encounters; (ii) the failure to provide information or accessibility to information on Intermedix's information system, as required herein; or (iii) and the material failure to meet its other obligations hereunder, except as may be agreed to or waived by Provider. - 7 - Notwithstanding the foregoing, Intermedix will not be in default under this agreement if Provider suffers no material harm from Intermedix' s failure. (b) in the case of Provider (i) the failure to use Intermedix as its exclusive provider of billing services for emergency medical services and emergency and non-emergency transfer services; (ii) and the material failure to meet its other obligations hereunder, except as may be agreed to or waived by Intermedix. Section 8.03 Termination of this Agreement with Material Cause. Either party may terminate this agreement with "Material Cause" if the other party is in "material default" under the terms and conditions of this Agreement and the default is not cured within 15 days of receipt of written notice specifying the material default. For purposes of this contract, in "material default" shall mean: (a) in the case of Intermedix, (i) the failure to maintain the confidentiality of medical and medical treatment information, as required hereunder or as required by law; or (b) in the case of Provider (i) the failure to remit compensation to Intermedix as and when required under this Agreement, except in instances of a bona fide dispute as to the amount billed when the undisputed amount shall have been paid. Intermedix shall have the right to terminate this contract immediately if Provider fails to pay Intermedix when and as payments are due hereunder. Section 8.04 Obligations During and Following Termination Notice Period. Except as otherwise provided in this Section 8.04, the obligations of each party under this Agreement shall be as set out in this Agreement during the termination notice period, except that: (a) The parties may agree, in writing, on a transition plan to a new billing provider (including an internal department of provider) to provide for a smooth transition between Intermedix's services and the services of the new provider. (b) Intermedix may, in its complete and total discretion, determine to cease all additional activities on the Provider's account(s) if provider has failed to (i) pay any and all amounts due and owing Intermedix pursuant to invoices provided by Intermedix (except for amounts about which Provider has a bona fide dispute that arose within 20 days of the receipt of the invoice for amounts due and owing Intermedix) or (ii) pay one or more invoices. - 8 - Article IX Audit Section 9.01 Audit Period. During the Term of this Agreement and for a period of three years after the end of the Term, each party agrees to maintain accurate books and records associated with the billing and collections made the subject of this Agreement. Section 9.02 Requirement to Provide Information. Upon written request from either party, the non-requesting party shall promptly provide such reasonable information, as the requesting party deems necessary regarding this Agreement. Section 9.03 Right to Audit. Upon reasonable written notice, either party may audit the books and records of the other party insofar and only insofar as such books and records relate or pertain to this Agreement. Such audit shall be conducted at the office of the party being audited, shall be during normal business hours, and shall be, unless the conditions of Section 10.04 are met, at the sole cost and expense of the party conducting the audit. Section 9.04 Rights on Results of Audit. If an audit reveals that a party has failed to pay any amount or portion of any amount due or payable under this Agreement and such amount is in excess of $20,000, the party being audited shall pay to the auditing party the full cost of the audit and the full amount due or payable plus interest at the rate of 10% per annum from the date(s) of nonpayment. Article X Miscellaneous Section 10.01 Strict Performance. The failure of either party to insist upon strict performance of any provision of this agreement shall not be construed as a waiver of any subsequent breach of the same or similar nature. Section 10.02 Each Provision a Separate Agreement. The parties agree that each provision of this Agreement shall be construed as separable and divisible from every other provision and that the enforceability of anyone provision shall not limit the enforceability, in whole or in part, of any other provision hereof. In the event that a court of competent jurisdiction determines that any term or provision herein shall be invalid or unenforceable, the remaining terms and provisions of this Agreement shall not be affected thereby, and shall be interpreted as if the invalid term or provision were not a part hereof. Section 10.03 Final Agreement. This Agreement, together with its exhibits, sets forth the entire, final and complete understanding between the parties hereto relevant to the subject matter of this Agreement. No waiver or modification of any of the terms or conditions of this Agreement shall be effective unless in writing signed on behalf of both parties. Provider and Intermedix understand and agree that the exhibits to this agreement are incorporated into this agreement by reference as if set forth at length. Section 10.04 Performance of Agreement, Venue; Choice of Law. Provider understands and agrees that Intermedix will be performing this contract in Harris County, Texas. The venue for any disputes or causes of action that may arise out of this Agreement is the state and county courts located in the geographically nearest of the following major metropolitan areas located in the State of Texas: Austin, Corpus Christi, Dallas, EI Paso, Fort Worth, Houston, Lubbock, and San Antonio. The provisions of this - 9 - Agreement shall be determined in accordance with the laws of the State of Texas excluding the choice of law provisions thereof. Section 10.05 Headings. The headings of this Agreement are for ease ofreference only and are not intended to limit or restrict the terms hereof. Section 10.06 Successors and Assigns. This Agreement is binding upon the heirs, legal representatives, successors and assigns of the parties hereto. Section 10.07 Independent Contractor. It is understood and agreed that Intermedix is an independent contractor. Nothing herein contained shall be construed to create any partnership or joint venture between the parties. lntermedix shall make no representation nor undertake any act on behalf of Provider other than what is specifically authorized pursuant to this agreement. EXECUTED and effective as ofthe ')~day of ~~ 200 ,. INTERMEDIX By: PROVIDER City of Pearl and By: p~ /'- -' Name: Bi 11 Ei sen Title: Ci ty Manager Addre~: 3519 Liberty Drive Pearland. Texas 77581 - 10 - Exhibit "A" Additional Agreement Regarding Protected Health Information Section A.1.01 Compliance with HIPAA. Intermedix shall carry out obligations under this Agreement in compliance with the privacy regulations pursuant to Public Law 104-191 of August 21, 1996, known as the Health Insurance Portability and Accountability Act of 1996, Subtitle F - Administrative Simplification, Sections 261, et seq., as amended ("HIPAA"), to protect the privacy of any personally identifiable protected health information ("PHI") that is collected, processed or learned as a result of the services provided in this Agreement. Section A.1.02 Specific Agreements. In conformity therewith, Intermedix agrees that it will: a. Not use or further disclose PHI except as permitted under this Agreement or required by law; b. Use appropriate safeguards to prevent use or disclosure of PHI except as permitted by this Agreement. c. To mitigate, to the extent practicable, any harmful effect that is known to Intermedix of a use or disclosure of PHI by Intermedix in violation of this Agreement; d. Report to Provider any use or disclosure of PHI not provided for by this Agreement of which Intermedix becomes aware; e. Ensure that agents or subcontractors to whom Intermedix provides PHI, or who have access to PHI, agree to the same restrictions and conditions that apply to Intermedix with respect to such PHI; f. Make PHI available to Provider and to the individual who has a right of access as required under HIP AA within 30 days of the request by Provider on the individual; g. Incorporate any amendments to PHI when notified to do so by Provider; h. Provide an accounting of all uses or disclosures of PHI made by Intermedix as required under the HIPAA privacy rule within 60 days; and i. Make its internal practices, books and records relating to the use and disclosure of PHI available to the Secretary of the Department of Health and Human Services for purposes of determining Intermedix's and Provider's compliance with HIP AA. Section A.1.03 Disclosures Contemplated. The specific uses and disclosures of PHI that may be made by Intermedix on behalf of Provider include: a. The preparation of invoices to patients, carriers, insurers and others responsible for payment or reimbursement of the services provided by Provider to its patients; b. Preparation of reminder notices and documents pertaining to collections of overdue accounts; c. The submission of supporting documentation to carriers, insurers and other payers to substantiate the health care services provided by Provider to its patients or to appeal denials of payments for same; d. The preparation and release of medical records to patients or their legal representatives as permitted by HIPPA privacy rule; e. Uses required for the proper management of Intermedix as a business associate; and f. Other uses or disclosures of PHI as permitted by HIP AA privacy rule. Addendum to Service Agreement (Triptix Program) THIS ADDENDUM TO SERVICE AGREEMENT (the "Addendum") is made and entered by and between Intermedix, Inc. ("Intermedix") and Provider (as defined on the signature page hereto) to amend the Service Agreement entered into by and between Intermedix and Provider on or about the zs- day of St-"lf:~iVI~c"1- Z()c:x;. (the "Original Agreement"). WHEREAS, Intermedix has developed the "Triptix" system running on "tablet PC's" to enter medical records and data into and interact with its main billing and medical records system (the "Product" as more particularly defined herein) that Intermedix is willing to make available under license to Provider upon the terms herein set forth; and WHEREAS, Provider has expressed a desire to use the Product; and WHEREAS, Provider acknowledges that, in connection with the provision of the Product and the Triptix devices, Intermedix is incurring significant per unit and, in some cases, per User out of pocket expenses; NOW, THEREFORE, FOR AND IN CONSIDERATION of the mutual promises and covenants contained herein and for other good and valuable consideration the adequacy and sufficiency of which is hereby acknowledged, the Parties agree as follows: ARTICLE I. DEFINITIONS Section 1.01 shall apply: Definitions. For all purposes of this Addendum, the following definitions (a) "Confidential Technical Information" shall mean any and all technical information of the designated Party except: (i) domain; technical information which at the time of disclosure lS m the public (ii) technical information which after disclosure is published or otherwise becomes a part of the public domain through no fault of the recipient (but only after it is published or otherwise becomes part of the public domain); (iii) technical information which the recipient can show was in its possession at the time of disclosure and it was not acquired, directly or indirectly, from the other Party hereto; or (iv) technical information which was received by the recipient after the time of disclosure hereunder from a third party who did not acquire it, directly or indirectly, from the disclosure Party under an obligation of confidence. For the purpose of this definition, specific technical information disclosed by one Party to the other pursuant to the provisions of this Addendum shall not be deemed, as to the recipient, to be ADDENDUM TO SERVICE AGREEMENT PAGE 1 OF 13 within any of the above exceptions merely because it is embraced by more general information within one of the said exceptions. In addition, any combination of features disclosed by one Party to the other pursuant to the provisions of this Addendum shall not be deemed, as to the recipient, to be within any of the above exceptions merely because individual features of the combination are within any of said exceptions, but only if the combination itself and its principle of operation are within one of the said exceptions. (b) "Contract Rights" shall mean Intellectual Property and any other rights and interests of Provider or Intermedix in and under this Addendum, including other assets relating to the Product. (c) "Customizations" shall mean any changes to the Licensed Software requested by Provider and agreed to by Intermedix for increased or different functionality of the Licensed Software. (d) "Day" or "Days" shall mean a continuous calendar day. (e) "Documentation" shall mean any technical or instructional materials for the Licensed Software that are delivered to Provider by Intermedix. (f) "Defaulting Party" shall mean either Intermedix or Provider to this Addendum who has been served with written notice that it is not in compliance with any term to this Addendum. (g) "Effective Date" shall mean the date on which the Initial Fee is paid or, if no Initial Fee is required, the date on which the last party to this Addendum executed it. (h) "First Day of Service" shall mean, with respect to each Product Unit, the first day such Product Unit is delivered to Provider. (i) "Initial Period" shall mean, with respect to each Product Unit, the initial three- year period following the delivery of the Product Unit to Provider. G) "Intellectual Property" shall mean all of Intermedix' s rights in and to the Product, including, without limitation, Intermedix' s copyrights, trademarks, trade dress, trade secrets, patents and patent applications (if any), and "know how" and any other proprietary information developed by Intermedix relevant to the Product. (k) "Initial Fee" shall mean, with respect to each Product Unit, the Third-Party Intellectual Property Royalty Payments required in connection with such Product Unit. (1) "Initial Term Early Exercise Payment" shall mean, with respect to any Product Unit, the payment required under the terms and provisions of Section 4.03 of this Addendum. (m) "Licensed Software" means the copies of Intermedix's software programs as are contained in the Product, including any Documentation included therewith. Intermedix may, at its sole discretion, provide corrections and modifications to the Licensed Software from time to time. ADDENDUM TO SERVICE AGREEMENT PAGE 2 OF 13 (n) "Licensed Territory" shall mean the area in which Provider operates its emergency medical service at the time of entering into this Addendum. (0) "Material Breach" shall have the meaning given to it III Article 5 of this Addendum. (p) "Material Non-Monetary Breach" shall have the meaning given to it in Article 5 of this Addendum. (q) "Product" shall mean, collectively, each Product Unit (a tablet PC, personal digital assistant or similar device), the Licensed Software, any Customizations with respect to one or more of the Product Units delivered to Provider, and any Third-Party Intellectual Property, as licensed to Provider under the terms and conditions of this Addendum. (r) "Product Unit" shall mean a single data collection device delivered pursuant to the terms and conditions of this Addendum containing one or more elements of the Product but shall not mean any ancillary devices or products provided by persons other than Intermedix. (s) "Third-Party Interface Devices" shall mean those devices that interface with the Product to transfer information, including medical monitoring devices for which Third-Party Intellectual Property Royalty Payments are made. (t) "Third-Party Intellectual Property Rights" shall mean the intellectual property rights of any third-party used in connection with the Product. (u) "Third-Party Intellectual Property Royalty Payments" shall mean the payments to be made directly by Provider or, indirectly, on Provider's behalf, as consideration for the licensing of any Third-Party Intellectual Property Rights. (v) "Updates" shall mean any and all revisions to the Licensed Software, and the Customizations or any other part of the Product, if any, as shall be delivered by Intermedix to the Provider from time to time. (w) "Users" shall mean any employees or independent contractors of Provider, all of whom shall have the right to use the Licensed Software, Customizations and any Documentation pursuant to the terms and conditions of this Addendum. ARTICLE II. PRICE AND PAYMENT Section 2.01 Adjustment to Rates of Compensation under the Original Agreement. The compensation due and owing Intermedix by Provider shall be increased as described on Schedule 2.01 during the Term of this Addendum. Section 2.02 License Fees. In addition to the payments required pursuant to the provisions of Section 2.01 hereof, Provider shall make the payments in connection with Third- Party Intellectual Property Royalty Payments as further set out on Schedule 2.02 hereto. ADDENDUM TO SERVICE AGREEMENT PAGE 3 OF 13 Section 2.03 Payment Terms. All undisputed amounts shall be paid within thirty (30) days of receipt of a valid invoice. Section 2.04 Taxes. Provider shall pay all taxes, duties or charges of any kind (including withholding or value added taxes) imposed by any federal, state, or local governmental entity for Licensed Software or Products and supporting training and Documentation and related materials and maintenance provided during the term of this Addendum, excluding only taxes based solely on Intermedix's income. To the extent allowed by law, Provider shall indemnify and hold Intermedix harmless from all claims and liability arising from Provider's failure to discharge or pay any and all such taxes, duties, or charges. ARTICLE III. PROPRIETARY RIGHTS Section 3.01 Provider acknowledges that Intermedix and its suppliers, including, without limitation, the suppliers of licenses of Third-Party Intellectual Property Rights, have, retain and own all right, title and interest in and to the Licensed Software, the Customizations, the Updates, any Documentation, and all patent, copyright, trademark and service mark and trade name and the goodwill associated therewith, trade secret, inventions, technology, ideas, know- how, and all other intellectual property rights and all other rights pertaining thereto. All such right, title and interest shall be and remain the sole property of Intermedix. Provider shall not be an owner or holder of any copies of, or have any interest in the Licensed Software or any Updates, Customizations, and Documentation but rather, such Licensed Software, Releases and Updates and Documentation are solely licensed for use pursuant to this Addendum. Neither Provider nor its Users shall: (i) remove any copyright, patent or other proprietary legends from the Licensed Software or any Product; (ii) sub-license, lease, rent, assign, transfer or distribute Licensed Software or any Product to any third party; (iii) alter, modify, copy, enhance or adapt the Licensed Software or any Product; (iv) attempt to reverse engineer, covert, translate, decompile, disassemble or merge the Licensed Software or any Product with any other software or materials; (v) otherwise create or attempt to create any derivative works from this Licensed Software or any Product, or permit persons who are not Users any access to the Licensed Software or its operations, and any attempt to do any of the above shall void all warranties given Provider by Intermedix. ARTICLE IV. TERM AND TERMINATION Section 4.01 Generally. The term of this Addendum shall begin on the Effective Date and shall continue until the end of the Initial Period of the last Product Unit delivered pursuant to the terms and provisions of this Addendum ("Initial Term"). Intermedix's Maintenance and Support obligations, as well as its development commitments, shall continue until the end of the Initial Term at the fees set forth by this Addendum; provided, however, that Provider or Intermedix may terminate this Addendum pursuant to the terms and provisions of this Addendum. Section 4.02 Termination. Notwithstanding any other language herein or in the Original Agreement, a termination of the Addendum shall not operate to terminate the Original Agreement, but a termination of the Original Agreement shall operate as a termination or deemed of this Addendum. Notwithstanding anything to the contrary herein or in the Original ADDENDUM TO SERVICE AGREEMENT PAGE 4 OF 13 Agreement, a termination of the Original Agreement may be deemed to be an elective termination and a default under this Addendum. Section 4.03 Termination of the Addendum. (a) Termination by Provider upon lntermedix Material Breach. Provider may terminate this Addendum (but not the Original Agreement) without obligations to pay the Early Termination Payment, if Intermedix commits a Material Non-Monetary Breach which breach, if capable of being cured, is not cured within 30 days of a written notice of termination (b) Termination by Provider without lntermedix Material Breach. Provider may terminate this Addendum (but not the Original Agreement) at any time by providing notice to Intermedix, making payment in full of the Early Termination Payment with respect to EACH Product Unit delivered pursuant to this Addendum and returning all Product Units to Intermedix. (c) Termination by lntermedix upon Provider Material Breach. Intermedix may terminate this Addendum if Provider commits (i) a Material Monetary Breach Provider fails to pay any undisputed amount due under this Addendum within 20 days after written notice of such nonpayment or (ii) a Material Non-Monetary Breach, which breach, if capable of being cured, is not cured within 30 days of a written notice of termination. Section 4.04 Any termination of the Addendum shall not: (i) release Provider or Intermedix from any claim of the other accrued hereunder prior to the effective date of such termination; (ii) release Provider or Intermedix from their obligations under Articles VII, VIII, IX, or Sections 4.05 and 4.06, respectively, unless otherwise released by the further terms hereof; Section 4.05 Upon termination of this Addendum, Intermedix shall remain the sole owner of the Product and all intellectual property and goodwill associated therewith, and Provider shall assert no rights thereto. Section 4.06 Delivery of Materials. Upon termination of this Addendum for any reason, Provider shall immediately discontinue use of the Product including all Documentation and within ten (10) days return each of the Product Units and certify in writing to Intermedix that all copies, extracts or derivatives of any item comprising the Product, including all Documentation, in whole or in part, in any form, have either been delivered to Intermedix or destroyed in accordance with Intermedix's instructions. All payments made by Provider to Intermedix hereunder are non-refundable. ARTICLE V.BREACH OF ADDENDUM Section 5.01 Material Non-Monetary Breaches. ADDENDUM TO SERVICE AGREEMENT PAGE 5 OF 13 (a) Provider Material Non-Monetary Breach. For purposes of this Addendum, as respects a breach by a Provider, a "Material Non-Monetary Breach" includes any breach of its or its User's obligations with respect to Proprietary Rights, Confidentiality, or any material breach of a party's representations or warranties under this Addendum. (b) lntermedix Material Non-Monetary Breach. For purposes of this Addendum, as respects a breach by Intermedix, a "Material Non-Monetary Breach" includes any material breach of its Maintenance and Support obligations or any material breach of its representations or warranties under this Addendum. (c) lntermedix and Provider Material Non-Monetary Breach. For purposes of this Addendum, as respects a breach by either lntermedix or Provider, it shall be a "Material Non- Monetary Breach" if such party (i) terminates or suspends its business or operations, (ii) becomes insolvent, admits in writing its inability to pay its debts as they mature, makes an assignment for the benefit of creditors, or becomes subject to direct control of a trustee, receiver or similar authority, or (iii) becomes subject to any bankruptcy or insolvency proceeding under federal or state statutes which are not rescinded within forty-five (45) days. Section 5.02 Material Monetary Breaches. For purposes of this Addendum, as respects a breach by either Intermedix or Provider, it shall be a "Material Monetary Breach" with respect to such party if: (a) Such party fails to make any Third-Party Intellectual Property Royalty Payment as required under any agreement with such third party; (b) Such party fails to make payments due under the terms of this Addendum or the Original Agreement when and as due; or (c) Such party fails to reimburse the other party for payments made on its behalf for Third-Party Intellectual Property Royalty Payments. ARTICLE VI. LICENSE Section 6.01 License. Commencing on the Effective Date and subject to the terms and conditions of this Addendum, Intermedix grants Provider a non-exclusive, non-transferable license, to use the Product in the Licensed Area by the Users. This license does not constitute a sale of the Product or any portion or piece thereof or of any copies of Licensed Software, Customizations or Documentation. Section 6.02 Delivery and Acceptance. Intermedix will deliver to Provider, the Product at mutually agreeable times, after or simultaneously with the later of date of the execution of this Addendum or Effective Date, or as otherwise provided. Section 6.03 No Other Rights. Except to exercise the license of Section 6.01 and its rights specifically granted under this Addendum, Provider shall have no rights to own, use or otherwise exercise dominion over the Product. Except as otherwise permitted under this Addendum, Provider may not rent, lease, loan, sell or otherwise distribute the Product or any derivative works based upon the Licensed Software in whole or in part. ADDENDUM TO SERVICE AGREEMENT PAGE 6 OF 13 Section 6.04 Right of Audit. Either party may audit and inspect the other party's physical and electronic records solely to verify such party's compliance with the terms of this Article VI. Provider hereby agrees to the remote electronic survey of the Licensed Software licensed hereunder, provided Provider is provided ten (10) business day's prior written notice of such survey and provided further that such audit is conducted in a reasonable manner. In addition, upon written request from the other party, each party shall provide or obtain physical access to such records to either the requesting party or an independent auditor chosen by the party for the purposes of audit. All physical audits of Provider will be conducted at the business premises in which the Licensed Software is installed or accessed during regular business hours during the term of this Addendum. Audits will be conducted no more frequently than once annually. All individuals performing such audits, including independent third party auditors, must be bound by confidentiality obligations consistent with this Addendum. Section 6.05 Material Change to Product. If there is any material change in any rules, orders, laws or regulations governing the manner in which this Product operates or in the data provided by third parties (such as changes in the manner of operation of global distribution systems or standards in wireless or non-wireless communications protocols); then upon written notice to Provider, Intermedix will have the right, retroactive to the date of such material change, to modify the way in which this Product delivers data in order to comport with any change in law or regulations or functionality governing the Product. All data used by Intermedix for testing and development shall be supplied by Provider at its expense to Intermedix promptly upon request by Intermedix to Provider. ARTICLE VII. LIMITED WARRANTY AND DISCLAIMER: Section 7.01 Software Media Warranty. Intermedix warrants that each Product Unit delivered to Provider will be free from material defects when delivered. Intermedix's entire liability and Provider's exclusive remedy under this warranty will be to replace the media on which such Product was delivered. Intermedix shall have no obligation to replace any defective media which is not returned to Intermedix within the warranty period or which has failed because of accident, abuse or misapplication. Section 7.02 Software Warranty. Intermedix warrants that for a period of 90 days from the delivery of a Product Unit identified by Intermedix as being fully functional for production at the site designated by Intermedix, the Product, if properly used by Provider, shall operate in conformity with the Documentation for such Product, if any. Intermedix does not warrant that any Product will meet all of Provider's requirements or that the use of any Product will be uninterrupted or error free. Section 7.03 Grant of Standard Warranties Only. NEITHER INTERMEDIX NOR ANY OF ITS SUPPLIERS MAKE ANY WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR IN ANY COMMUNICATION WITH PROVIDER WITH RESPECT TO THE PRODUCT OR OTHER ITEMS DELIVERED PURSUANT TO THIS ADDENDUM THAT IS NOT PART OF THE STANDARD WARRANTY OFFERED BY INTERMEDIX TO ITS OTHER CUSTOMERS. Intermedix's sole and exclusive liability, and Provider's sole and exclusive remedy, to terminate this Addendum, at which time, Provider shall immediately deliver each Product Unit and any related Documentation to Intermedix; provided, however, ADDENDUM TO SERVICE AGREEMENT PAGE 7 OF 13 Intermedix may elect, to attempt, through reasonable efforts, to: (a) correct any material nonconformities discovered within the Warranty Period, (b) replace the nonconforming Product. The above remedies are available only if Intermedix is promptly notified in writing, within the warranty period, upon discovery of the nonconformities by Provider and Intermedix's examination of the Product discloses that such nonconformities exist, and that the Product has not been (i) altered or modified; (ii) subjected to negligence, or computer or electrical malfunctions; (iii) used, adjusted, or installed other than in accordance with the instructions furnished by Intermedix; or (iv) modified for custom development by Intermedix for Provider as agreed in an Order. ANY REFUND OF FEES PROVIDED HEREUNDER (WHICH MAY BE UNDERTAKEN AT INTERMEDIX'S SOLE AND COMPLETE DISCRETION) SHALL BE DEEMED A TERMINATION OF THIS ADDENDUM (AND ANY RELATED MAINTENANCE) AND SHALL BE PROVIDER'S SOLE AND EXCLUSIVE REMEDY FOR REJECTION OF THE PRODUCT(S) AND NEITHER PARTY SHALL HAVE ANY FUTURE OBLIGATIONS OR LIABILITY HEREUNDER WITH RESPECT TO SUCH PRODUCT(S). THIRD PARTY INTELLECTUAL PROPERTY PAYMENTS SHALL NOT BE REFUNDABLE IN FULL OR IN PART. Section 7.04 Information/Disclaimer of Warranties with Respect to Data and Information Provided by Third Parties. (a) Some information transmittable or accessible through any Product Unit may have been obtained through sources believed to be reliable (such as various Internet providers, real- time data provided by GPS systems or medical devices or other third party information sources). Provider agrees that Intermedix shall not have any liability whatsoever for the accuracy, completeness, timeliness or correct sequencing of the information, or for any decision made or action taken by the Provider in reliance upon such information or the Product. Provider further agrees that Intermedix shall have no liability whatsoever for the transmission, non-transmission or partial transmission of data through third-party data systems and that such transmission shall be undertaken at Provider's sole risk, cost and expense. (b) Intermedix and its third party suppliers and providers do not warrant that any Product will meet Provider's requirements or that access to the Product, or the operation of the Product, will be uninterrupted, error-free, that all errors will be timely corrected by third party information providers, or that the data and/or reports generated by the Product will be accurate in the event that third party information providers have provided inaccurate information. Section 7.05 DISCLAIMER. EXCEPT FOR THE EXPRESS LIMITED WARRANTIES SET FORTH IN THIS ADDENDUM AND THEIR OWN WILLFUL MISCONDUCT, INTERMEDIX DOES NOT MAKE ANY WARRANTIES EXPRESS, IMPLIED, STATUTORY OR IN ANY COMMUNICATION WITH PROVIDER WITH RESPECT TO THE LICENSED SOFTWARE, ANY SERVICES OR ANY PRODUCT, AND INTERMEDIX EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NO REPRESENTATIVE OF INTERMEDIX SHALL HAVE THE RIGHT TO MAKE WARRANTIES ON INTERMEDIX'S BEHALF UNLESS THOSE WARRANTIES ARE IN WRITING AND EXECUTED BY A DULY AUTHORIZED OFFICER OF INTERMEDIX. EXCEPT WITH RESPECT TO THEIR WILLFUL MISCONDUCT, IN NO EVENT SHALL ADDENDUM TO SERVICE AGREEMENT PAGE 8 OF 13 EITHER PARTY OR ITS SUPPLIERS HAVE ANY LIABILITY FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF DATA OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY OR SERVICES, ARISING IN ANY WAY OUT OF THIS ADDENDUM UNDER ANY CAUSE OF ACTION, WHETHER OR NOT INTERMEDIX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THIS SECTION DOES NOT LIMIT LIABILITY FOR BODILY INJURY OF A PERSON. ARTICLE VIII. FORCE MAJEURE Section 8.01 If the performance of this Addendum by any Party, or of any obligation under this Addendum, is prevented, restricted or interfered with by reason of war, revolution, civil commotion, acts of public enemies, blockage, embargo, strikes, any law, order, proclamation, regulation, ordinance, demand, or requirement having a legal effect of any government or any judicial authority or representative of any such government or any other act whatsoever, whether similar or dissimilar to those referred to in this clause which are beyond the reasonable control of the Party affected, then the Party so affected shall, upon giving prior written notice to the other Party, be excused from such performance to the extent of such prevention, restriction, or interference; provided, however, that the Party so affected shall use its best efforts to avoid or remove such causes of nonperformance and shall continue performance hereunder with the utmost dispatch whenever such causes are removed. ARTICLE IX. ASSIGNABILITY Section 9.01 This Addendum shall be assignable to (i) any related company of Intermedix or (ii) any successor of the entire right, title and interest to that portion of the business of Intermedix to which this Addendum relates. When assigned in accordance with this Paragraph, this Addendum and all rights, obligations and duties hereunder will inure to the benefit of and will be binding on the assignees or successors in interest of Provider. Upon such assignment, Intermedix shall notify Provider in writing of such assignment and of the identity of such successor or assignee. Section 9.02 This Addendum shall not be assigned by Provider without the express written consent of Intermedix. ARTICLE X. NOTICES Section 10.01 Any notice given or required to be given under this Addendum shall be in writing and shall be addressed to the Parties hereto at the addresses set out on the signature page hereto. Section 10.02 Any such notices shall be deemed to have been given (i) if mailed, then three (3) Days following the date such notice is placed in the United States mail in a postage paid wrapper, registered or certified with return receipt requested, addressed to the appropriate Party at the address set forth above for such Party, or to the last address provided in writing to the other Party by the addressee, or (ii) if by any other method, when actually received. Either Party may ADDENDUM TO SERVICE AGREEMENT PAGE 9 OF 13 change its address for the purpose of this Addendum by notice in writing to the other Party in accordance herewith. ARTICLE XI. GOVERNING LAW AND ARBITRATION Section 11.01 THE PARTIES HERETO AGREE THAT THE V ALIDITY AND INTERPRET A TION OF THIS ADDENDUM AND THE LEGAL RELATIONS OF THE PARTIES HERETO SHALL BE GOVERNED BY THE LAWS OF THE STATE OF TEXAS. THE PARTIES FURTHER HEREBY CONSENT TO VENUE IN THE LOCATION CONTEMPLATED BY THE ORIGINAL AGREEMENT. ARTICLE XII. REPRESENT A TIONS Section 12.01 Provider and Intermedix agree that this Addendum constitutes a legal, valid and binding obligation for each Party, enforceable against such Party in accordance with its terms (subject always to applicable bankruptcy, insolvency, receivership and other similar laws relating to or affecting the enforcement of creditor's rights generally and to general principles of equity). Further, Intermedix and Provider warrant and represent to each other: (i) that each (i) is duly formed and organized and validly existing under the laws of the jurisdiction of its formation, (ii) is properly qualified to do business and is in good standing under the laws of each jurisdiction in which it does business, (iii) has all necessary corporate or similar power and authority to execute and deliver this Addendum and to consummate the transaction contemplated hereby; and (h) that this Addendum, its execution and the fulfillment and compliance with the terms and conditions hereof, do not violate or conflict with any provision of or result in any breach of or default under any (i) organizational documents of each Party, (ii) law or judicial, award, or similar decree, or (hi) agreement, to which Provider or Intermedix, for Intermedix' s representations and warranties, or Provider, for Provider's representations and warranties, are bound. ARTICLE XIII. MISCELLANEOUS Section 13.01 Entire Agreement. This Addendum contains the entire and only agreement between the Parties hereto relating to the Product, and this Addendum supersedes all pre-existing or prior agreements of the Parties hereto respecting any portion or in any way related to the subject matter of this Addendum. Any representation, promise or condition in connection with the subject matter of this Addendum which is not specifically incorporated in this Addendum, whether written or oral, shall not be binding upon the Parties hereto. Section 13.02 Invalidation of Part is not Invalidation of Whole. If, in any legal proceeding, it is determined that any provision of this Addendum is unenforceable under applicable law, the unenforceable provision shall automatically be amended to conform to that which is enforceable under the law. In any event, the validity or enforceability of any provision shall not affect any other provision of this Addendum, and the Agreement shall be construed and enforced as if such provision had not been included. ADDENDUM TO SERVICE AGREEMENT PAGE 10 OF 13 Section 13.03 Waivers. No benefit or right accruing to either Party under this Addendum shall be waived unless the waiver is reduced to writing and signed by all Parties to this Addendum. The failure of any Party to exercise any of its rights under this Addendum shall in no way constitute a waiver of those rights, nor shall such failure excuse the other Parties from any of its or their obligations under this Addendum. Section 13.04 Successors and Assigns. This Addendum shall be binding upon and inure to the benefit of the Parties and Owners therein, their respective successors and permitted aSSIgns. Section 13.05 Counterparts. This Addendum may be executed in any number of counterparts, each of which where so executed and delivered shall be an original, but all of which shall constitute one and the same instrument. Section 13.06 Headings. The headings of the sections and subsections hereof are provided for convenience only and shall not in any way affect the meaning or construction of any provision of this Addendum. Section 13.07 Export Laws. Provider shall comply with all then current export laws and regulations of the U.S. Government and the government of the country in which Provider receives delivery of the Licensed Software which pertain to the Licensed Software. Section 13.08 Basis of Bargain. Each party recognizes and agrees that the warranty disclaimers and liability and remedy limitations in this Addendum are material bargained for basis of this Addendum and that they have been taken into account and reflected in determining the consideration to be given by each party to enter into this Addendum. [ONLY SIGNATURE PAGE TO FOLLOW] ADDENDUM TO SERVICE AGREEMENT PAGE 11 OF 13 SIGNATURE PAGE IN~ B' ~~ ~ Name: ,J~ ~~ - f kslI/I'71T7 Title: Date of Signature: 111 In. /z.cn>L ,. , Address for Notices: (0 gO)( ~s-r(f'><..J i Q'ftJ2tffj lk ??~1t/~ 1~r9 PROVIDER Name of Provider: City of Pearl and By: b~ '.) , Name: Bill Eisen Title: City Manager Date of Signature: 9/25/06 Address for Notices: 3519 Liberty Drive Pearland. Texas 77581 ADDENDUM TO SERVICE AGREEMENT PAGE 12 OF 13 Schedule 2.01 Rates of Compensation; Collection Efforts. From and after the Effective Date and during the Term of the Addendum, Intermedix shall be compensated as follows: In consideration of Intermedix' s services rendered pursuant to the Original Agreement, Intermedix shall be compensated and paid in accordance with the following schedule: (a) 12.65% of the total amount collected under the Original Agreement on each account, based upon Provider utilizing five product units. (b) No additional charge if payment of the total amount due with respect to any account if payment of such amount is made by a credit card. ADDENDUM TO SERVICE AGREEMENT - SCHEDULE 2.01 Page 1 of 1 Schedule 2.02 Third-Party Intellectual Property Royalty Payments In addition to the other compensation required under this Addendum, Third-Party Intellectual Property Payments shall be made as follows: Licensing/Royalty agreement to be executed between Provider and the manufacturer of the Provider's defibrillating equipment when the manufacturer has cleared the Triptix equipment for direct interface between their equipment and the Intermedix provided data devices. AND NO OTHER ADDENDUM TO SERVICE AGREEMENT - SCHEDULE 2.02 Page 1 of 1 Schedule 4.03 Initial Term Early Termination Payments The Initial Term Early Termination Payments with respect to each Product Unit are as follows: Period Amount (2) For an Early Termination during the first 12 months from the beginning of the Term: For an Early Termination during the remainder of the Term: $2,250 (1) $---0--- ADDENDUM TO SERVICE AGREEMENT - SCHEDULE 4.03 Page 1 of 1