HomeMy WebLinkAboutC09-505 Wyeth-Sponsored Vaccine Reminder ProgramService Agreement
Wyeth-Sponsored Vaccine Reminder Program
This Service Agreement (hereinafter the "Agreement") is hereby entered into this ~ 7 ~~ day of
~~~°, 2009 by and between the Eagle County Health and Human Services, a Department of Eagle
County Government, located at 551 Broadway, Eagle, Colorado (hereinafter "County"), and TeleVox
Software, Incorporated, a Delaware corporation (hereinafter "TeleVox ") located at 1110 Montlimar Drive,
Suite 700, Mobile, AL 36609.
WHEREAS, County is a provider of medical and other services to clients, 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, County uses certain products and/or services of Wyeth Pharmaceuticals division
("Wyeth") and Wyeth has a separate agreement with TeleVox regarding the provisioning of TeleVox services
related to certain Wyeth products and/or services.
NOW, THEREFORE, County and TeleVox hereby agree to the following terms and conditions;
1. Term of Agreement. This Agreement shall commence upon the date of implementation agreed to
by the parties in writing and shall continue for a period of one (1) year from the date of
implementation. After implementation, either party may terminate this agreement at any time, with
or without cause, upon thirty (30) days written notice to the other party.
2. Scope of TeleVox ASP Service. TeleVox will contact the County's clients (each a "Recipient")
using its PostcardPlus member outreach service, utilizing information provided by County and
transmitting a message approved by County (collectively, the "Content")(the "Services"). Services
includes a mailed reminder followed by an automated phone reminder (each, a "Message"). A
report of attempted, completed, and failed calls will be provided to the County immediately following
each campaign. County's return mail address will be required and added to each postcard before
delivery.
3. Data Transfer. The County will generate and transfer the necessary client data to TeleVox, where
it will be securely housed only long enough to complete the campaign and generate the necessary
reports. The County will be provided with a HIPAA-compliant method for transferring the data to
TeleVox.
4. Pricing. There is no cost to the County for the Services covered by this program. Wyeth will pay
fees directly to TeleVox for Services rendered by TeleVox, as agreed separately between Wyeth
and TeleVox. In no case shall County be charged any fee for the Services provided hereunder.
5. Maintenance of Services. County agrees to provide information reasonably required by TeleVox
to perform Services, including as applicable, but not limited to: program content and materials;
County databases; forecasts; routing and network addresses and configurations; and key contacts
for problem resolution (collectively the "County Materials").
6. Responsibility For Content, Transmitting Messages, and Accounts. County 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 County's campaigns and
programs are in compliance with all applicable laws, rules and regulations; (b) it is the transmitter of
TeleVox`
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all Content and Messages and TeleVox is merely acting at County's direction as a technology
conduit for the transmission of the Content and the Messages; (c) TeleVox's use of the Content in
accordance with this Agreement 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 County 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 and to
the extent that that the Services constitute a Solicitation, 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; (g) County 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, County shall provide
reasonable proof of compliance with the provisions set forth in this section and where TeleVox
reasonably believes that County 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 County or (C) not provide any Services. To the extent
permitted by law, County 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 County's instructions in sending the Messages or any breach of
its obligations in this section; (ii) County's failure to obtain prior express consent to contact each of
the cell phone numbers delivered by County 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) County's failure to comply with any third party rights
or law, rules or regulations applicable to County's systems, materials or programs relating to the
Services.
7. Indemnity. To the extent permitted by law, County 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 County of any term of this Agreement; (ii) the County
Materials as provided to TeleVox; or (iii) a claim by any customer of County or any party called on
County's or its customer's behalf relating to any defect in any product or service offered by County.
TeleVox shall indemnify, defend and hold County 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;
provided that TeleVox shall have no indemnification obligations for breach of the Agreement if
applicable law would prohibit County from providing indemnification for breach of the Agreement to
TeleVox.
TeleVox
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e Reminder Program
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.
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.
EXCEPT FOR THE RIGHT TO INDEMNIFICATION BY TELEVOX, AS PROVIDED BY
PARAGRAPH 7 HEREIN, COUNTY'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 COUNTY 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.
9. Governing Law This Agreement shall be governed and construed in accordance with the laws of
the State of Colorado without regard to its conflict of law provisions.
10. Health Insurance Portability and Accountability Act of 1996 ("HIPAA"). County 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). Therefore, the
Business Associate Agreement set forth at Exhibit A is hereby incorporated by reference herein.
11. No Third Party Beneficiary. Nothing herein expressed or implied is intended or should be
construed to confer or give to any person or entity other than the County or TeleVox and their
respective successors and assigns, any right, remedy or claim under or by reason hereof of by
reason of any covenant or condition herein contained.
[signature page follows]
Tele ox~
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e Reminder Program
AGREED TO:
TeleVox Software, Incorporated
1110 Montlimar Drive, Suite 700
Mobile, AL 36609
Date
T~ox ~ ure
COUNTY: ~l.~i
,Zj~, /~ Date ~ Y G°
ounty Signature
Title Title
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Name Printed
Name Printed
Instructions to County:
Return at least two (2) signed originals to the following address for execution by TeleVox:
TeleVox Software, Inc.
1110 Montlimar Drive
Suite 700
Mobile, AL 36609
ATTN: Jeff Charnock
TeleVox`
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EXHIBIT A
Business Associate Agreement
This Business Associate Agreement (this "BAA") is entered into this ~~~ day of ~t C , 2009 (the
"Effective Date") between TeleVox Software, Inc. ("TeleVox") County (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 County.
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.
TeleVox
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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.
e
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 § 164.26 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.
TeleVox~~
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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
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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 [nformation.
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.
TeleVox~
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TeleVox~
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