Service Agreement
Form

This Service Agreement (hereinafter the "Agreement") is hereby entered into by and between the party listed below (hereinafter "Client"), and TeleVox Software, Incorporated, a Delaware corporation (hereinafter "TeleVox ") located at 1110 Montlimar Drive, Suite 700, Mobile, AL 36609.

WHEREAS, Client is a provider of medical and other services to individuals, and desires to utilize TeleVox services in the course of providing said services;

WHEREAS, TeleVox is a provider of messaging systems and services to a variety of organizations, including healthcare businesses, and has the resources to provide these services as described below; and

WHEREAS, Client uses certain products and/or services of Novartis Vaccines and Diagnostics, Inc. (“Novartis”) and Novartis has a separate agreement with TeleVox regarding the provisioning of TeleVox services related to certain state mandates for immunization of grade school students.

NOW, THEREFORE, Client and TeleVox hereby agree to the following terms and conditions;

1. Term of Agreement. This Agreement shall commence upon the date of execution by the parties and shall continue for a period of one (1) year.
2. Scope of TeleVox ASP Service. TeleVox will call a list of unidentified individuals (each a “Recipient”) utilizing phone numbers provided by the Client using its HouseCalls Automated Messaging service, utilizing information provided by the Client and transmitting a message created by Client (collectively, the “Content”)(the “Services”). TeleVox shall not obtain from Client any identifying information (e.g., name, address, medical history etc.) for any Recipient other than the applicable Recipient’s phone number. Services include an automated phone reminder (each, a “Message”). A report of attempted, completed, and failed calls will be provided to the Client immediately following each campaign.
3. Data Transfer. TeleVox will provide the Client with a HIPAA-compliant method for transferring the Recipient phone number data to TeleVox. The Client will generate and transfer the Recipient phone number data to TeleVox where it will be used to deliver this program and generate the necessary reports.
4. Pricing. There is no cost to the Client for the Services covered by this program. Novartis will pay fees directly to TeleVox for Services rendered by TeleVox, as agreed separately between Novartis and TeleVox.
5. Maintenance of Services. Client agrees to provide the Content to Televox to enable TeleVox to perform Services and shall also provide Televox with key Client contacts for communications regarding the Services and problem escalation
6. Responsibility For Content, Transmitting Messages, and Accounts. Client represents and warrants that: (a) it is solely responsible for the Content and it has the legal right to use all Content and send all Messages to the Recipients (including obtaining any required consents from the Recipients) and the content, timing and purpose of all Messages, and Client’s campaigns and programs are in compliance with all applicable laws, rules and regulations; (b) it is the transmitter of all Content and Messages and Televox is merely acting at Client’s direction as a technology conduit for the transmission of the Content and the Messages; (c) Televox’s use of the Content shall not violate the rights of any third party or any law, rule or regulation; (d) it has obtained prior express consent to contact each cell phone number delivered by Client to Televox in connection with the provision of the Services; (e) it has (1) incorporated an interactive opt-out mechanism as part of any program relating to any Services or (2) the contacts that are the subject of such Services are not initiated to induce the purchase of goods or services or to solicit a charitable contribution (“Solicitations”); (f) from and after September 1, 2009, it has obtained from the recipient of any Solicitation an express written agreement that meets the requirements set forth in Section 310.4(b)(1)(v)(A) of the FTC’s Telemarketing Sales Rule; and (g) Client will not transmit or allow to be transmitted any Content or Messages that: (i) it does not have a right to make available under any law or under contractual or fiduciary relationship; (ii) are false, inaccurate, misleading, unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically, or otherwise objectionable; harmful to minors in any way; (iii) infringe any patent, trademark, trade secret, copyright, or other proprietary rights or rights of publicity or privacy of any party; (iv) utilize any unsolicited or unauthorized advertising, promotional materials, “junk mail”, “spam”, or any other forms of solicitation; or (v) interfere with or disrupts the Services or servers or network operator networks. Upon request, Client shall provide reasonable proof of compliance with the provisions set forth in this section and where Televox reasonably believes that Client may not have complied with such provisions or with all laws, rules and regulations, Televox may, at its option (A) scrub all numbers against any appropriate data base deemed necessary to remove all cell phone numbers, (B) insert an interactive opt-out mechanism and pass the resulting data to Client or (C) not provide any Services. Client shall indemnify, defend and hold Televox, its affiliates and their officers, directors, employees and agents harmless from and against any and all claims of loss, damages, liability, costs, and expenses (including reasonable attorneys’ fees and expenses) arising out of or resulting from: (i) Televox following Client’s instructions in sending the Messages or any breach of its obligations in this section; (ii) Client’s failure to obtain prior express consent to contact each of the cell phone numbers delivered by Client to Televox in connection with the provision of Services or the failure of such consent to comply with any law, rule or regulation; (iii) the failure to provide an opt-out mechanism in connection with any Solicitation or the failure of any opt-out mechanism to comply with any law, rule or regulation; or (iv) Client’s failure to comply with any third party rights or law, rules or regulations applicable to Client’s systems, materials or programs relating to the Services.
7. Indemnity. Client shall indemnify, defend and hold TeleVox and its Affiliates and their officers, directors and employees harmless from any and all third-party claims, actions, suits, proceedings, costs, expenses, damages (including punitive, treble and enhanced damages) and liabilities, including reasonable attorneys’ fees arising out of, connected with or resulting from: (i) a breach by Client of any term of this Agreement; (ii) Televox’s use of the phone numbers provided by Client; or (iii) a claim by any patient of Client or any party called on Client’s or its customer’s behalf relating to any defect in any product or service offered by Client. TeleVox shall indemnify, defend and hold Client and its officers, directors and employees harmless from any and all third-party claims, actions, suits, proceedings, costs, expenses, damages (including punitive, treble and enhanced damages) and liabilities, including reasonable attorneys’ fees which arise out of or result from a breach by TeleVox of any term of this Agreement.
8. The party claiming indemnification shall: (i) promptly notify the indemnifying party of any claim in respect of which the indemnity may apply; (ii) relinquish control of the defense of the claim to the indemnifying party; and (iii) provide the indemnifying party with all assistance reasonably requested in defense of the claim. The indemnifying party shall be entitled to settle any claim without the written consent of the indemnified party so long as such settlement only involves the payment of money by the indemnifying party and in no way affects any rights of the indemnified party.
9. Limitation of Liability. EXCEPT AS EXPRESSLY PROVIDED HEREIN, TELEVOX MAKES NO EXPRESS OR IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. TELEVOX EXPRESSLY DENIES ANY REPRESENTATION OR WARRANTY ABOUT THE ACCURACY OR CONDITION OF DATA OR THAT THE SERVICES OR RELATED SYSTEMS WILL OPERATE UNINTERRUPTED OR ERROR-FREE. NO CAUSE OR ACTION RELATING TO THIS AGREEMENT MAY BE ASSERTED MORE THAN TWO (2) YEARS AFTER IT ACCRUED. CLIENT’S SOLE AND EXCLUSIVE REMEDY FOR ANY BREACH OF THIS AGREEMENT BY TELEVOX SHALL BE THE RIGHT TO TERMINATE THE AGREEMENT. UNDER NO CIRCUMSTANCES SHALL TELEVOX BE LIABLE TO CLIENT FOR ANY INDIRECT, EXEMPLARY, DIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL OR INCIDENTAL DAMAGES OR LOSS OF PROFITS GOODWILL OR DATA, OR COST OF COVER EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH.
10. Governing Law This Agreement shall be governed and construed in accordance with the laws of the State of Nebraska without regard to its conflict of law provisions. Client agrees that any legal action involving or related to this Agreement will be heard exclusively in the state and federal courts located in Douglas County, Nebraska, and Client irrevocably consents to the personal jurisdiction of such courts over Client.
11. Health Insurance Portability and Accountability Act of 1996 (“HIPAA”). If Client is a Covered Entity (as defined by HIPAA) and provides individually identifiable health information or PHI (each as defined by HIPAA) to TeleVox as a Business Associate (as defined by HIPAA), then the Business Associate Agreement set forth at Exhibit A is hereby incorporated by reference herein.

I acknowledge, that by completing the information below and submitting this form to TeleVox, I agree to the Terms and Conditions as described above.

• Client Name:
• Healthcare Providers First Name:
• Healthcare Providers Last Name:
• NPI#
• Contact Name:

This Business Associate Agreement (this “BAA”) is between TeleVox Software, Inc. (“TeleVox”) and Client who purchases services pursuant to an agreement between TeleVox and Client (the “Agreement”) and this BAA is incorporated by reference into the Agreement. The parties hereby agree as follows:

Definitions

Catch-all definition:

Terms used, but not otherwise defined, in this BAA shall have the same meaning as those terms in the Privacy Rule (as defined below).

Examples of specific definitions:

Business Associate. "Business Associate" shall mean TeleVox.

Covered Entity. "Covered Entity" shall mean Client.

Individual. "Individual" shall have the same meaning as the term "individual" in 45 CFR § 160.103 and shall include a person who qualifies as a personal representative in accordance with 45 CFR § 164.502(g).

Privacy Rule. "Privacy Rule" shall mean the Standards for Privacy of Individually Identifiable Health Information at 45 CFR Part 160 and Part 164, Subparts A and E.

Protected Health Information. "Protected Health Information" shall have the same meaning as the term "protected health information" in 45 CFR § 160.103, limited to the information created or received by Business Associate from or on behalf of Covered Entity.

Required By Law. "Required By Law" shall have the same meaning as the term "required by law" in 45 CFR § 164.103.

Secretary. "Secretary" shall mean the Secretary of the Department of Health and Human Services or his designee.

Obligations and Activities of Business Associate

Business Associate agrees to not use or disclose Protected Health Information other than as permitted or required by the Agreement, the BAA or as Required By Law.

Business Associate agrees to use appropriate safeguards to prevent use or disclosure of the Protected Health Information other than as provided for by this BAA.

Business Associate agrees to mitigate, to the extent practicable, any harmful effect that is known to Business Associate of a use or disclosure of Protected Health Information by Business Associate in violation of the requirements of this BAA.

Business Associate agrees to report to Covered Entity any use or disclosure of the Protected Health Information not provided for by this BAA of which it becomes aware.

Business Associate agrees to ensure that any agent, including a subcontractor, to whom it provides Protected Health Information received from, or created or received by Business Associate on behalf of Covered Entity agrees to the same restrictions and conditions that apply through this BAA to Business Associate with respect to such information.

If applicable, Business Associate agrees to provide access, at the request of Covered Entity, and in a reasonable time and manner, to Protected Health Information in a Designated Record Set, to Covered Entity or, as directed by Covered Entity, to an Individual in order to meet the requirements under 45 CFR § 164.524.

If applicable, Business Associate agrees to make any amendment(s) to Protected Health Information in a Designated Record Set that the Covered Entity directs or agrees to pursuant to 45 CFR § 164.526 at the request of Covered Entity or an Individual, and in a reasonable time and manner.

Business Associate agrees to make internal practices, books, and records, including policies and procedures and Protected Health Information, relating to the use and disclosure of Protected Health Information received from, or created or received by Business Associate on behalf of, Covered Entity available to the Covered Entity, or to the Secretary, as agreed upon by the parties or designated by the Secretary, for purposes of the Secretary determining Covered Entity's compliance with the Privacy Rule.

Business Associate agrees to document such disclosures of Protected Health Information and information related to such disclosures as would be required for Covered Entity to respond to a request by an Individual for an accounting of disclosures of Protected Health Information in accordance with 45 CFR § 164.528.

If applicable, Business Associate agrees to provide to Covered Entity or an Individual, in a reasonable time and manner, information collected in accordance with the above Sections of this BAA, to permit Covered Entity to respond to a request by an Individual for an accounting of disclosures of Protected Health Information in accordance with 45 CFR § 164.528.

Permitted Uses and Disclosures by Business Associate

Except as otherwise limited in this BAA, Business Associate may use or disclose Protected Health Information to perform functions, activities, or services for, or on behalf of, Covered Entity as specified in the Agreement, provided that such use or disclosure would not violate the Privacy Rule if done by Covered Entity or the minimum necessary policies and procedures of the Covered Entity.

Except as otherwise limited in this BAA, Business Associate may use Protected Health Information for the proper management and administration of the Business Associate or to carry out the legal responsibilities of the Business Associate.

Except as otherwise limited in this BAA, Business Associate may disclose Protected Health Information for the proper management and administration of the Business Associate, provided that disclosures are Required By Law, or Business Associate obtains reasonable assurances from the person to whom the information is disclosed that it will remain confidential and used or further disclosed only as Required By Law or for the purpose for which it was disclosed to the person, and the person notifies the Business Associate of any instances of which it is aware in which the confidentiality of the information has been breached.

Except as otherwise limited in this BAA, Business Associate may use Protected Health Information to provide Data Aggregation services to Covered Entity as permitted by 45 CFR § 164.504(e)(2)(i)(B).

Business Associate may use Protected Health Information to report violations of law to appropriate Federal and State authorities, consistent with § 164.502(j)(1).

Obligations of Covered Entity

Provisions for Covered Entity to Inform Business Associate of Privacy Practices and Restrictions

Covered Entity shall notify Business Associate of any limitation(s) in its notice of privacy practices of Covered Entity in accordance with 45 CFR § 164.520, to the extent that such limitation may affect Business Associate's use or disclosure of Protected Health Information.

Covered Entity shall notify Business Associate of any changes in, or revocation of, permission by Individual to use or disclose Protected Health Information, to the extent that such changes may affect Business Associate's use or disclosure of Protected Health Information.

Covered Entity shall notify Business Associate of any restriction to the use or disclosure of Protected Health Information that Covered Entity has agreed to in accordance with 45 CFR § 164.522, to the extent that such restriction may affect Business Associate's use or disclosure of Protected Health Information.

Permissible Requests by Covered Entity

Covered Entity shall not request Business Associate to use or disclose Protected Health Information in any manner that would not be permissible under the Privacy Rule if done by Covered Entity. [Include an exception if the Business Associate will use or disclose protected health information for, and the contract includes provisions for, data aggregation or management and administrative activities of Business Associate].

Term and Termination

Term. The Term of this BAA shall be effective upon first disclosure of Protected Health Information to BAA by Covered Entity, and shall terminate when all of the Protected Health Information provided by Covered Entity to Business Associate, or created or received by Business Associate on behalf of Covered Entity, is destroyed or returned to Covered Entity, or, if it is infeasible to return or destroy Protected Health Information, protections are extended to such information, in accordance with the termination provisions in this Section.

Termination for Cause. Upon Covered Entity's knowledge of a material breach by Business Associate, Covered Entity shall either:

Provide an opportunity for Business Associate to cure the breach or end the violation and terminate this BAA if Business Associate does not cure the breach or end the violation within 30 days of written notice;

Immediately terminate this BAA if Business Associate has breached a material term of this BAA and cure is not possible; or

If neither termination nor cure are feasible, Covered Entity shall report the violation to the Secretary.

Effect of Termination.

Except as provided in this BAA, upon termination of this BAA, for any reason, Business Associate shall return or destroy all Protected Health Information received from Covered Entity, or created or received by Business Associate on behalf of Covered Entity. This provision shall apply to Protected Health Information that is in the possession of subcontractors or agents of Business Associate. Except as provided in this BAA, Business Associate shall retain no copies of the Protected Health Information.

In the event that Business Associate determines that returning or destroying the Protected Health Information is infeasible, Business Associate shall provide to Covered Entity notification of the conditions that make return or destruction infeasible. In such case, Business Associate shall extend the protections of this BAA to such Protected Health Information and limit further uses and disclosures of such Protected Health Information to those purposes that make the return or destruction infeasible, for so long as Business Associate maintains such Protected Health Information.

Miscellaneous

Regulatory References. A reference in this BAA to a section in the Privacy Rule means the section as in effect or as amended.

Amendment. The Parties agree to take such action as is necessary to amend this BAA from time to time as is necessary for Covered Entity to comply with the requirements of the Privacy Rule and the Health Insurance Portability and Accountability Act of 1996, Pub. L. No. 104-191.

Survival. The respective rights and obligations of Business Associate under Section the "Effect of Termination" Section of this BAA shall survive the termination of this BAA.

Interpretation. Any ambiguity in this BAA shall be resolved to permit Covered Entity to comply with the Privacy Rule.

I agree to the Terms and Conditions:

Healthcare Provider First Name:

Healthcare Provider Last Name:

NPI Number

Client Address:

City:

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Contact Name:

Contact Phone:

Contact Extension:

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Caller ID Number*:

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