The following terms and conditions (“Terms and Conditions”) shall apply to any fully executed Services Agreement (“Agreement”) entered into by Progressive Medical, LLC; PMSI, LLC; Tmesys, LLC; and Healthcare Solutions, Inc., together referred to as Optum Workers’ Compensation and Auto No-Fault Division, along with any of its workers’ compensation affiliated entities (collectively, “Optum”) and any client executing the Agreement (“Client”). The Terms and Conditions shall become effective as the Agreement’s Effective Date and shall remain in effect until such time as the Agreement is expired or terminated. Optum reserves the right to change any of the Terms and Conditions at any time at its sole discretion. Any terms not defined herein shall have the meaning as ascribed to it in the Agreement.
i. Confidentiality Obligations: Each party (“Recipient”) will, and will use commercially reasonable efforts to cause each of its Representatives to, keep confidential the Confidential Information of the other party (“Discloser”) and not disclose any Confidential Information without Discloser’s prior written consent or as permitted by the Agreement. Confidential Information may be disclosed to either party’s employees, contractors or another third party (“Representative”) as reasonably necessary to carry out the purposes of the Agreement, on condition that the Representative agreed to keep confidential the Confidential Information with obligations at least as comprehensive as the obligations in the Agreement. Recipient will be responsible for any breach of the Agreement by any Representative to which it discloses Confidential Information.
ii. Definition of Confidential Information: “Confidential Information” means: (a) the terms of the Agreement; (b) all Discloser material, non-public information, materials or data, in any form, that Recipient knows or has reason to know is confidential or proprietary to Discloser; (c) any other information that Discloser marks or designates clearly as confidential or proprietary; and (d) Discloser trade secrets, know how, inventions, current and future business plans, marketing plans and strategies, financial and operational plans, business methods and practices, customer or prospect data, records, information and profiles, supplier or vendor information and data, historical or prospective financial information, budgets, cost and expense data, employment records and contracts and personnel information as well as software, technology, inventions (whether or not patentable) that Discloser owns, licenses or uses. Confidential Information will not include information that: (i) is generally available to the public; or (ii) becomes available to Recipient on a non-confidential basis from a source, other than Discloser or its affiliates or agents, not bound by a confidentiality agreement.
iii. Exceptions to Confidentiality Obligations: The obligations in this Section will not restrict or limit disclosures by Recipient: (a) to offer or administer the Plans; (b) to perform functions or responsibilities required by Laws; or (c) as required or compelled by Laws or a governmental authority with competent jurisdiction over Recipient, on condition that Recipient will: (i) give prompt notice to Discloser after learning of the need to disclose (if allowed by Laws); (ii) disclose only that portion of Discloser’s Confidential Information that is legally necessary to comply with the Laws ; and (iii) assist Discloser if it objects to the disclosure.
iv. Return of Confidential Information: Upon Discloser’s request, Recipient will use commercially reasonable efforts to promptly return or destroy (with written certification that destruction has occurred) Discloser’s Confidential Information within Recipient’s possession or control. If Recipient determines that return or destruction of Confidential Information is not feasible, Recipient will notify Discloser and may retain the Confidential Information, on condition that the Confidential Information is held in confidence, as required by the terms of this section, and used or disclosed solely for the purposes that make return or destruction of the Confidential Information not feasible. Recipient may retain a copy of Discloser’s Confidential Information for archival purposes or as otherwise required by Laws.
B. Protected Health Information:
The parties shall maintain the privacy and confidentiality of all individually identifiable health information and/or protected health information regarding Claims and Covered Persons.
Each party (“Indemnitor”) will defend, hold harmless and indemnify the other party (“Indemnitee”), and its officers, directors, shareholders, employees and other agents, from and against all third party claims, liabilities, damages, judgments or other losses (including but not limited to attorneys’ fees) incurred by the Indemnitee to the extent arising out or as a result of any negligence or breach of the Agreement by the Indemnitor, except to the extent the liability results from Indemnitee’s gross negligence or willful misconduct of the Agreement, and provided that such indemnity is subject to the express limitations set forth in Section 6(d) of the Agreement. The foregoing obligations shall only exist if the Indemnitee promptly notifies the Indemnitor of such claim and provides the Indemnitor with reasonable information, assistance and cooperation in defending the lawsuit or proceeding. Indemnitee’s failure to provide prompt notice will not relieve Indemnitor of its obligations under this section, except to the extent that the omission results in a failure of actual notice to Indemnitor and Indemnitor suffers damages because of the failure to notify.
The parties’ liability to each other under the Agreement will not exceed the general or direct damages caused by breach of the Agreement. The parties will have no liability under the Agreement for any consequential, special, indirect, incidental or punitive damages, even if they are aware of the possibility of the loss or damages. In any event, a party’s liability to the other party for any and all claims relating to the Agreement shall not exceed the lessor of (i) One Million Dollars ($1,000,000.00) or (ii) the amount of fees paid by Client to Optum for twelve months immediately preceding the event giving rise to such liability.
A party may not assign or transfer the Agreement without the prior written consent of the other party, except that Optum may assign the Agreement to any affiliate upon 30-day notice to Client, so long as Optum remains obligated under the Agreement. The Agreement will bind the parties and their respective successors and assigns, and will inure to the benefit of the parties and their respective permitted successors and assigns.
Each party will comply with all Laws applicable to its respective business and the performance of its obligations under the Agreement. If a party’s performance as required by the Agreement is prohibited by or conflicts with any Laws, then the party whose performance is owed or required will be required to perform, but only to the extent permitted by Laws.
If any party is unable to perform any of its obligations under the Agreement because of any cause beyond the reasonable control of and not the fault of the party invoking this section, including any act of God, fire, casualty, flood, earthquake, war, strike, lockout, epidemic, destruction of production facilities, riot, insurrection or material unavailability, and if the non-performing party has been unable to avoid or overcome its effects through the exercise of commercially reasonable efforts, the party will give prompt notice to the other party, its performance will be excused, and the time for its performance will be extended for the period of delay or inability to perform due to such occurrences, except that if performance is extended under this section for more than 60 days, then at any time before reinstatement of the performance, the other party may terminate the Agreement upon notice to the non-performing party.
The parties represent and warrant that the terms of the Agreement are not inconsistent with any other obligations whether contractual or otherwise that the party may have or with the policies of any other entity with which the Parties are associated.
The Agreement and each party’s rights and obligations under it will be governed by and construed according to the laws of the State of Minnesota, without giving effect to conflicts of laws principles.
Any rights in information, innovations, ideas, discoveries, products, creative works and the like (whether or not copyrightable or patentable), suggestions, communications, data, reports and results conceived, derived, reduced to practice, made or developed by either party as a direct result of the services under the Agreement shall be the sole property of the party developing such.
Except as otherwise provided in the Agreement, the Agreement may not be modified except in writing and signed by both parties.
Any notice given under the Agreement shall be in writing and shall be deemed received if sent by personal delivery, overnight courier that provides confirmation of delivery, or email to the applicable party at its address set forth with its signature to the Agreement, or to such other address or to the attention of such other person as either party may designate in writing. Notices sent by email shall be deemed received on the day of submission; overnight courier shall be deemed received the next business day.
Each party will maintain: (a) during and for a reasonable period of time after the term of the Agreement, reasonable and customary insurance (whether through third party carriers or self-insured arrangements or retentions), as to type, policy limits and other coverage terms, to cover the risks of loss faced by companies similar to the party in size, industry and business operations; and (b) all insurance coverage, bonds, security and financial assurances as Laws may require from time-to-time.
N. Dispute Resolution Procedures:
If a dispute occurs between the parties, the complaining party may request a meeting by executive officers of each party who will attempt to resolve the dispute in good faith before beginning a legal action, except for matters subject to injunctive relief. If the parties’ executive officers do not resolve the dispute within 30 days after the notice, then arbitration may be commenced. All disputes under the Agreement will be settled by arbitration administered by the American Arbitration Association under its Commercial Rules conducted before a single arbitrator.
The failure of any party to insist in any one or more instances upon performance of any term of the Agreement will not be construed as a waiver of future performance of the term, and the party’s obligations for the term will continue in full force and effect. The provisions of the Agreement are severable. The invalidity or unenforceability of any term or provision in any jurisdiction will be construed and enforced as if it has been narrowly drawn so as not to be invalid, illegal or unenforceable to the extent possible and will in no way affect the validity or enforceability of any other terms or provisions in that jurisdiction or of the entire Agreement in that jurisdiction.
The parties agree not to use each other’s name, logo, service marks, trademarks or other identifying information without the written permission of the other.
Client shall be responsible for and pay any and all taxes imposed at any time by a governmental entity related to any transactions processed under the Agreement.
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Any term of the Agreement that contemplates performance after termination of the Agreement will survive expiration or termination and continue until fully satisfied, including Section 6(a) ,which will survive so long as the information is Confidential Information or the data is proprietary to either party or its successors, successors-in-interest or assigns, Section 3, and Sections 6(d), 6(e) and 6(p), which will survive indefinitely.
S. Integrated Agreement; Interpretation; Execution:
The Agreement, with its exhibits, constitutes the final and complete statement of the terms of the Agreement between the parties regarding the subject matter of the Agreement. The Agreement replaces any prior or contemporaneous written or oral communications or Agreements between the parties regarding its subject matter. The language in the Agreement will be construed in accordance with its fair meaning, as if prepared by all parties and not strictly for or against any party. The legal doctrine of construction of ambiguities against the drafting party will not be employed in any interpretation of the Agreement.
