HomeMy WebLinkAbout16171 (2)Docusign Envelope ID: 4B9D5BF8-9111-4247-A9F3-15926CBCF4F7
PROFESSIONAL SERVICES AGREEMENT
This PROFESSIONAL SERVICES AGREEMENT (the "Agreement") is entered into as
of the date of last signature hereto (the "Effective Date") by and between the City of Pueblo,
Colorado, having a principal place of business at 1 City Hall Place, Pueblo, CO 81003("City"),
on behalf of itself and as sponsor of City of Pueblo Self -Insured Health Plans, and Crossover
Health Medical Group, APC, a California medical professional corporation, having a principal
place of business at 101 W. Avenida Vista Hermosa, Suite 120, San Clemente, CA 92672, on
behalf of itself and its Affiliates (collectively, "Crossover"), (each, individually, a "Party" and,
collectively, the "Parties") for the purpose of obtaining health care services.
RECITALS
WHEREAS, Crossover and its Affiliates ("Crossover Health"), through their physicians,
health professionals, and other care team members, provides comprehensive primary care and
associated health services designed to deliver a new lifestyle approach to health, wellness, and
vitality.
WHEREAS, Crossover Health delivers services in person at exclusive and shared onsite
and nearsite health centers, virtually through its Member Technology, and through other delivery
methods.
WHEREAS, City wishes to engage Crossover Health to provide services to City and to
provide to City's eligible employees, their eligible dependents, and other persons who City
designates access to Crossover Health's services, as described in more detail herein and in one
or more Statements of Work.
NOW, THEREFORE, the Parties hereto agree as follows:
1. DEFINITIONS. As used in this Agreement, the following terms have the following
meanings:
1.1 "Access" means to store data in, retrieve data from, or otherwise make use of
(directly or indirectly) data or technology through electronic means.
1.2 "Affiliate" means any person or entity now or hereafter in control, controlled by or
in common control with a Party.
1.3 "Applicable Laws" means all applicable laws, rules, statutes, ordinances,
regulations, binding regulatory guidance, governmental requirements, directives, court orders,
or interpretations or guidelines thereof that have legal effect, whether local, national, federal,
provincial, international or otherwise, existing from time to time, and each as may be amended
from time to time, including any requirements of any applicable regulator.
1.4 "Authorization" means an individual's written and signed permission that
complies with the HIPAA Laws and permits a covered entity or a business associate to use
and/or disclose the Protected Health Information as described in the permission, for the
purpose, or purposes, stated therein and to the recipients stated therein, as applicable.
1.5 "Care Teams" means the Shared Care Teams, Exclusive Care Teams and
Virtual Care Teams.
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1.6 "Claim" means any administrative, regulatory or judicial action, claim, suit,
petition, appeal, demand, demand letter, lien, consent order or consent agreement, notice of
noncompliance or violation, investigation or proceeding of any kind, open, pending or
threatened, whether mature, unmatured, contingent, known or unknown, at law or in equity, in
any forum, and any losses, damages, liabilities, costs or expenses, fines and penalties,
including but not limited to those relating to investigations, actions, suits, proceedings and
hearings, and reasonable attorney's and paralegal's fees, including bodily injury, death and/or
property damage.
1.7 "Contractor" means a third -party agent and/or subcontractor.
1.8 "Crossover Personnel" means Crossover Health's employees, consultants, or
Contractors, that are engaged or assigned by Crossover Health to perform the Services,
including, without limitation, Crossover Providers.
1.9 "Crossover Physicians" means the physicians that are engaged or assigned by
Crossover Health to perform Services.
1.10 "Crossover Provider" means a Crossover Physician or Crossover Health allied
health professional (physician's assistant, nurse practitioner, mental health therapist, physical
medicine provider or other licensed independent provider) that is engaged or assigned by
Crossover Health to perform Services.
1.11 "Documentation" means the instructions and such other instructional information
provided by Crossover Health for use with the Member Technology.
1.12 "Eligibility File" means the list of the Eligible Population provided to Crossover
Health by the Plan that includes the specific data required by Crossover Health in order to
provide the Services.
1.13 "Eligible Dependents" means eligible dependents of the Eligible Employees of
City that are designated and permitted by City or the Plan to obtain Health Services.
1.14 "Eligible Employees" means employees of City that are designated and
permitted by City or the Plan to obtain Services.
1.15 "Eligible Family" means Eligible Employees and their Eligible Dependents.
1.16 "Eligible Other Persons" means other persons designated by City or the Plan
as eligible to obtain Services, but who are not Eligible Employees or Eligible Dependents.
1.17 "Eligible" and "Eligible Population" (used interchangeably herein) mean,
individually and collectively as appropriate, Eligible Employees, Eligible Dependents and Eligible
Other Persons.
1.18 "ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
1.19 "Exclusive Care Team" means the Crossover Providers and other Crossover
Personnel assigned by Crossover Health to provide Services to Members at an Exclusive
Health Center. The Exclusive Care Team may also provide Virtual Care.
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1.20 "Exclusive Health Center" means a private, custom nearsite or onsite Health
Center operated by Crossover Health for the exclusive use of City's Eligible Population.
1.21 "Fixed Assets" means the equipment, fixtures, and furniture used to provide the
Services.
1.22 "Health Services" means medical and associated services, including having
medical questions answered and receiving diagnoses, treatments, referrals, follow-ups, and
health and wellness -related reminders, that are delivered to Members by Crossover Personnel
(or personnel of Crossover Health's Contractors), and the Member Technology in accordance
with the terms and conditions set forth herein and in an applicable SOW.
1.23 "Health Center" means a site of provision of Services, which can include private
and/or shared onsite or nearsite clinics operated by Crossover Health.
1.24 "HIPAA Laws" means (a) the Health Insurance Portability and Accountability Act
of 1996 ("HIPAA"); (b) Subtitle D of the Health Information Technology for Economic and
Clinical Health Act (the "HITECH Act"), also known as Title XIII of Division A and Title IV of
Division B of the American Recovery and Reinvestment Act of 2009; (c) regulations
promulgated thereunder by the US Department of Health and Human Services, including the
HIPAA Omnibus Final Rule (the "HIPAA Final Rule"), the Standards for Privacy of Individually
Identifiable Health Information (the "Privacy Rule"), and the Security Standards for the
Protection of Electronic Protected Health Information (the "Security Rule"), and (d) state
privacy and security laws, in each case, as such laws, rules, and regulations have been and
may be adopted and amended from time to time.
1.25 "Intellectual Property Rights" means patents, copyrights, trademarks, and any
other form of protection of any kind in any jurisdiction and applications for any of the foregoing
as well as any trade secrets, know-how, and other proprietary information and data.
1.26 "Member Technology" means the secure web- and mobile -Accessible on-line
health solutions and connected health technology, including the software platform, as updated,
upgraded, customized, improved, adapted, or otherwise modified from time to time, and made
available by Crossover Health, that allows Members to access the Services, among other
things.
1.27 "Members" means Eligibles who have activated an account on the Member
Technology.
1.28 "Occupational Health Records" means records of City's employees and
candidates for employment with respect to the Occupational Health Services provided by
Crossover Health, including Employee Medical Records (as that term is defined in 29 C.F.R.
1910) and Employee Exposure Requirements (as that term is defined in 29 C.F.R. 1020(c)(5).
1.29 "Occupational Health Services" means a service provided by Crossover Health
aimed at identifying and advising City regarding an Eligible's health condition that could affect
workplace safety or an Eligible's ability to do their job.
1.30 "Personal Data" means any information defined as personal data or personal
information or similar by any applicable laws, rules, regulations, and directives relating in any
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way to the privacy, confidentiality, security, integrity, and protection of Personal Data, including
any information relating to identified or identifiable individuals.
1.31 "Plan" means City's self -insured or fully insured group health plan(s) (as such
term is defined in 45 C.F.R. § 160.103).
1.32 "Protected Health Information" or "PHI" means protected health information as
that term is defined in the HIPAA Laws (specifically, 45 C.F.R. § 160.103).
1.33 "Health Records" means records of the Members with respect to the Health
Services provided by Crossover Health.
1.34 "Report Dashboard" means the on-line dashboard through which the reports
provided pursuant to Section 2.6.5 (Reports), will be made available to designated City
contacts.
1.35 "Services" means Health Services, Occupational Health Services and other
services as may be agreed upon by the Parties and set forth in one or more SOWs.
1.36 "Shared Care Team" means the Crossover Providers and other Crossover
Personnel assigned by Crossover Health to provide Services to Members at a Shared Health
Center. The Shared Care Team may also provide Virtual Care.
1.37 "Shared Health Center" means a Health Center operated by Crossover Health
for use by eligibles from multiple clients of Crossover Health.
1.38 "Statement of Work" or "SOW" means a document executed by Crossover
Health and City pursuant to this Agreement describing a specific set of services, work, and/or
deliverables that Crossover Health is to provide City, and the related fees.
1.39 "Taxes" means taxes, levies, duties, or similar governmental assessments of any
nature, including, for example, value-added, sales, use, or withholding taxes.
1.40 "User" means a Member who has Utilized the Services.
1.41 "Utilize" means a Member has engaged a Crossover Provider in a Visit.
1.42 "Virtual Care" means Health Services provided via virtual means to Members.
Virtual Care includes 1:1 patient provider video visits, messaging services via the Member
Technology, and/or telephone communication with a Shared Care Team, Exclusive Care Team,
or Virtual Care Team.
1.43 "Virtual Care Team" means the Crossover Providers and Crossover Personnel
assigned by Crossover Health to provide Health Services to Members virtually. Virtual Care
Team providers are primarily accessed through asynchronous messaging and may engage
synchronously (via video visits and/or telephone communication) at the provider's discretion.
Virtual Care Team providers do not provide services at the Health Centers.
1.43.1 "Visit" means a synchronous or asynchronous clinical care interaction
between a Member and a Crossover Provider. Interactions/encounters solely for influenza
vaccines do NOT count as Visits.
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2. SERVICES AND FACILITIES. Crossover Health will provide or otherwise make
accessible to City and/or its Eligible Population the Services and deliverables described in this
Agreement and in one or more Statements of Work, subject to the terms and conditions set forth
herein and therein. Each Statement of Work is incorporated by reference into and will be
governed and controlled by this Agreement. In addition to the Services described in each
applicable Statement of Work, the following Services will be provided:
2.1 Health Center Premises and Fixed Assets. Each Statement of Work will set
forth which Party will provide the premises and Fixed Assets necessary to operate each Health
Center, including the lease for the space, design, architecture, materials, construction oversight,
vendor management, fit out, and ongoing maintenance of the facility, and the Fixed Assets.
Crossover Health will maintain, service, repair and calibrate the Fixed Assets.
2.2 Staffing. Crossover Health will staff the Services, including recruiting, hiring,
onboarding, training, and managing appropriate Crossover Personnel.
2.3 Account Management. Crossover Health will assign an account manager (the
"Account Manager") on a non-exclusive basis to provide support to City with respect to the
implementation and operations of this Agreement, and to liaise with City regarding all aspects of
the Services and operations, including in the following areas: (a) lead relationship manager
covering strategic goals, account growth, client experience, facilitate providing responses to
certain City benefits -related vendors (e.g., insurance, consultants, vendors); (b) contracting,
operating, performance management; (c) reporting; and (d) new Services development and
implementation. The Account Manager will meet with City on a periodic basis.
2.4 Member Technology. Crossover Health will grant Members during the Term the
non -transferable, non-exclusive right to Access and use the Member Technology (and any
Documentation provided related to such Access and use). Upon establishing an account in the
Member Technology, Members may request and schedule appointments through online and
mobile scheduling, access Health Services and Occupational Health Services, communicate
with their care team and view their Records. The Member Technology is provided subject to and
in accordance with the terms and conditions set forth in this Agreement, an applicable
Statement of Work, the Documentation, and the Member Technology Addendum attached as
Exhibit A.
2.5 Coordination with Third Parties. To the extent City requests Crossover Health
to coordinate its Services with service teams operated by City or its representatives, agents, or
Contractors, City agrees to require such services teams and their operators to provide
Crossover Health with all necessary coordination, information and other assistance as may be
reasonably necessary for Crossover Health to coordinate and perform the Services.
2.6 Operations.
2.6.1 Appointments. Crossover Health will provide appointment scheduling in -
person or by phone through Crossover Personnel available during Health Center operations
hours, in addition to the appointment scheduling functionality in the Member Technology
described in Section 2.4 (Member Technology). Crossover Health will email Members
appointment confirmations, appointment reminders, registration confirmation, ongoing user
engagement education, surveys and referral communications. Crossover Health will, when
possible, email Members appointment reminders twenty-four (24) hours prior to a scheduled
appointment.
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2.6.2 Cancellation/No Show Policy.
a. Exclusive Care Team Appointments. In the event significant numbers
of Members fail to attend scheduled appointments or cancel scheduled appointments less than
24 hours prior to their appointment time with the Exclusive Care Team, Crossover and City will
mutually determine whether Crossover will apply its Cancellation/No Show Policy to discourage
missed appointments and late cancellations. Crossover Health will return to City as an invoice
credit any cancellation/no-show fees charged to members at the Exclusive Health Centers.
2.6.3 Refusal of Service. City acknowledges and agrees that Crossover
Health may withhold Services to any Member for good cause, including but not limited to,
requests by a Member for quantities of drugs in excess of prescribed quantities or refill
limitations or where, in the professional judgment of a Crossover Provider or other health care
professional, Services should not be provided. Crossover Health also may discontinue the
provision of Services to any Member who is disruptive or poses a threat to Crossover Personnel
or other Members.
2.6.4 Quality Improvement. Crossover Health will establish, implement and
maintain quality improvement efforts for the Service, including:
a. Administering patient satisfaction surveys that capture Service
impressions, provider assessment, staff interaction and overall Member experience;
b. Utilizing a process to seek to correct any satisfaction deficiencies and
improve patient satisfaction; and
c. Maintaining a Report Dashboard to monitor service levels and report data
to City.
2.6.5 Reports. Crossover Health will make available to City standardized
reports set forth in Exhibit B (the "Reports") regarding the Service through the Report
Dashboard. The Reports will be designed to evaluate member engagement and member
experience. Reports will be made available to City electronically, directly accessible to City
personnel and reviewed at regular mutually agreed upon intervals by City and Crossover
Health. Other reports can be provided as reasonably requested by City. Customized reports
may be provided at additional cost to City and may require additional lead time. Notwithstanding
the foregoing, City will have no right to provide input or recommendations, nor to exercise any
control, regarding medical or clinical decision making, and City will not receive PHI from
Crossover Health, except to the extent a User has signed and provided to Crossover Health an
Authorization that permits Crossover Health to share PHI with City.
2.6.6 Member Complaints. Crossover Health will utilize a process for soliciting
and responding to Members' comments and/or complaints about the Services.
2.6.7 Service Level and Hours of Operations Adjustments. The Parties
acknowledge that Crossover Health may adjust the service levels and operations hours for the
Services from time to time based on demand. To the extent a particular Service is under-utilized
or additional services are requested by City, Crossover Health and City will collaborate to reach
mutual agreement regarding the elimination or addition of Services listed in this Agreement or
an applicable Statement of Work.
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2.6.8 Notification of Material Events. Crossover Health will notify City in
writing (subject to patient confidentiality laws) as soon as practicable after becoming aware of
the occurrence of any events that may reasonably cause material harm to City or materially
impact Crossover Health's ability to perform the Services under this Agreement.
2.6.9 Claims Billing Services. Crossover Health will provide claims billing
and reporting services to the Plan that support the primary care services provided by Crossover
Health, which includes pre- and post -deductible appointment claims submission (single code,
payment suppression) as described in any applicable statement of work. Crossover Health will
not provide in-house lab billing, payment reconciliation, after -appointment statements, prior
authorizations, Medicare or Medicaid claims submission, or collection agency services.
3. CLAIMS DATA.
3.1 Provision of Claims Data. City will cause the Plan to provide Crossover with
access to the claims data associated with Eligibles (the "Claims Data") that is reasonably
necessary for Crossover's and the Plan's payment and health care operations purposes,
including pursuant to 45 C.F.R § 164.506(c)(4) on behalf of the applicable Plan and in support
of the Plan's health care operations activities described in paragraphs (1) and (2) of the
definition of health care operations set forth in HIPAA (including, for example, case
management and care coordination activities, quality assessment and improvement activities, or
population -based activities relating to improving health or reducing health care costs). The Plan
will provide 12 months of historical and ongoing monthly Claims Data beginning no later than
ninety (90) days after the Commencement Date (as that term is defined in an applicable
Statement of Work). Crossover also may use any such Claims Data and derivatives and
modifications thereof in connection with its commercial, research and other business purposes,
subject to at all times being in compliance with HIPAA and all applicable laws with respect to
Claims Data. Crossover may disclose de -identified and aggregated information that does not
identify, directly or indirectly, any rate information, healthcare provider or Member.
3.2 Obligations with Respect to Claims Data. At all times when receiving and
handling the Claims Data for the above -described purposes, Crossover shall act as either as a
Covered Entity if the Claims Data is for a patient care purpose, or as a Business Associate of
the Plan and adhere to the Business Associate Terms attached here as Exhibit C. City agrees
that Crossover, acting in its capacity as a Covered Entity or as the Plan's Business Associate,
may also request and receive clinical and administrative data from the Plan or its third party
payment and/or claims administrators and other data sources pertaining to Health Services
provided to Eligibles. For the sake of clarity, if Crossover incorporates any Claims Data into a
Member's Medical Record, Crossover shall be acting as a Covered Entity when handling such
data.
4. PUBLICITY.
4.1 City hereby grants to Crossover Health the express right to use City's logo and/or
listing City in its communications to Eligibles and in its list of clients in marketing, sales, and
public relations materials and other communications solely to identify City as a Crossover
Health customer. City also agrees to serve as a reference regarding the Services provided
hereunder and participate in or allow for written and video testimonials and other publications
regarding health outcomes or outcomes from other key priorities, and patient and care
experiences upon reasonable request by Crossover. Other than as expressly stated herein,
Crossover Health will not use City's marks, codes, drawings or specifications without prior
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written permission. Each Party will have the right to issue press releases regarding this
Agreement, the relationship, the Services being provided to City, and any Health Center to local,
national and trade publications throughout the Term, provided that each such press release
must include reference to both City and Crossover Health. In addition, each Party will have the
right to identify the relationship in its sales and promotional activities. Any information disclosed
by either Party to the public that refers to the other Party as contemplated in this Section 4 will
require the other Party's prior approval, which approval may not be unreasonably withheld or
delayed.
5. INVOICING AND PAYMENT.
5.1 Fees, Expenses and Invoices. As consideration for Crossover Health's
performance of the Services, City will compensate and reimburse Crossover Health as set forth
in the applicable Statement of Work. Crossover Health will submit invoices monthly, no later
than the first day of the month. Crossover Providers will not submit claims to third party payors
or order or refer services reimbursed by third party payors.
5.2 Payment Terms. City will pay to Crossover Health all amounts invoiced by
Crossover Health within 30 days of City's receipt of such invoice. All invoices not fully paid
within 30 days of receipt will be subject to a finance charge of the lower of 1.5% per month or
the maximum rate permitted by Applicable Law. If Crossover is compelled to bring suit against
City to collect amounts rightfully due under this Agreement or any SOW, in addition to finance
charges, Crossover shall be entitled to recover reasonable attorneys' fees and costs incurred in
connection with the action.
5.3 Virtual Service Substitution. City acknowledges that Crossover Health may
deliver certain Services virtually rather than in person, in response to changes in demand, site
availability, or other operational needs, including Force Majeure Events. Such substitutions shall
not excuse or reduce City's payment obligations, so long as Crossover Health continues to
provide access to Services that are materially consistent with those described in the applicable
Statement of Work.
5.4 Transaction Taxes. All amounts payable under the Agreement shall be
exclusive of federal, state, and/or local value added tax, sales tax, gross receipts, goods and
services, excise, use tax or similar taxes or governmental charges (if any) which may be
imposed on Crossover Health for provision of the Services (collectively, "Transaction Taxes").
City is responsible for all Transaction Taxes and shall pay or reimburse Crossover for
Transaction Taxes resulting from, relating or in connection with this Agreement including the
services provided herein. If City provides Crossover with a valid tax exemption certificate in
accordance with local laws and as determined by Crossover, Crossover will not collect
Transaction Taxes covered by the tax exemption certificate. If City and Crossover cannot agree
on the applicability of Transaction Taxes, City understands that Transaction Taxes remain a
responsibility of City to be collected by Crossover and remitted to the relevant governing
authority should it be alleged or determined to be owed in connection with the services provided
under this Agreement. In the event a governing authority determines additional Transaction
Taxes are due in furtherance of this Agreement or the exemption certificate is held invalid, City
will pay Crossover the Transaction Tax and hold Crossover harmless from the Transaction Tax,
and any penalties, interest, fines, and costs thereon as well as reasonable legal fees and costs
incurred by Crossover as a result. City agrees to reasonably cooperate with Crossover in the
audit and minimization of Transaction Taxes in connection with this Agreement and shall make
available to Crossover, and any governing authority, all information, records, or documents
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relating to any audits or assessments attributable to or resulting from this Agreement, and the
filing of any tax returns or contesting of any Transaction Taxes. Notwithstanding the foregoing,
however, in no event will Transaction Taxes include, and in no event will City be responsible for,
any Taxes on the income Crossover Health earns.
5.5 Billing Dispute. If City disputes the accuracy of an invoice, City will promptly,
but, in any case, not later than thirty(30) days following the receipt of such invoice, notify
Crossover Health in writing, pursuant to Section 15.7 (Notices), of the dispute, including in such
notice: (i) the amount disputed; (ii) the Service to which the dispute applies; and (iii) the reason
for the dispute. City may not withhold payment of the disputed amount. Crossover Health will
make commercially reasonable efforts to resolve the dispute within thirty (30) days following the
date on which Crossover Health received City's initial billing inquiry. Crossover Health will
advise City of the results of its investigation and make any adjustments mutually agreed to by
the Parties. While the Parties work to resolve the dispute, this Agreement will remain in full force
and effect, unless otherwise terminated pursuant to this Agreement.
6. TERM AND TERMINATION.
6.1 Term. The term of this Agreement will commence on the Effective Date and,
unless earlier terminated in accordance with its terms, shall: (a) continue in full force and effect
for three (3) years from the Effective Date (the "Initial Term"); and (b) automatically renew for
successive one (1) year terms (each, a "Renewal Term"), unless either Party provides the other
with at least one hundred eighty (180) days' notice of its intent not to renew. Any reference to
"Term" in this Agreement shall include the Initial Term and all Renewal Terms.
6.2 Termination. This Agreement will terminate, as applicable:
6.2.1 upon mutual agreement of the Parties;
6.2.2 upon termination of all applicable Statements of Work hereunder;
6.2.3 upon at least 180 days' prior written notice by one Party to the other Party
of a material default or substantial non -monetary breach by the other Party of any obligation
under this Agreement, which breach is not substantially cured within a 90-day period after
proper notice, provided that no act or omission on the part of the non -breaching Party at any
time following the occurrence of any material breach of this Agreement shall operate as a
waiver of any past, continuing, or future breach, nor deprive the non -breaching Party of its right
to terminate this Agreement at any time, subject to the discretion of the non -breaching Party and
the provisions of this Agreement;
6.2.4 (i) upon at least 30 days' prior written notice by one Party to the other
Party, upon the insolvency of the other Party, or (ii) upon a voluntary or involuntary petition in
bankruptcy by or against the other Party which is not dismissed within the shorter of 180 days
after commencement or 90 days after notice. Notwithstanding the foregoing, if Crossover Health
is the insolvent or bankrupt Party, City may only terminate this Agreement pursuant to this
subsection if such insolvency or bankruptcy unreasonably interferes with Crossover Health's
provision of the Services provided hereunder, and if City is the insolvent or bankrupt Party,
Crossover Health may only terminate this Agreement pursuant to this subsection if such
insolvency or bankruptcy unreasonably interferes with City's payment of the consideration owed
to Crossover Health hereunder or under any applicable SOW; and
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6.2.5 upon no less than 15 days' prior written notice by Crossover Health to
City, upon the failure of City to pay any amount due under Section 5 (Invoicing and Payment) or
any applicable Statement of Work which is not cured within 10 days of such notice.
Any termination notice must specify the nature of the material default, substantial breach or
other reason for termination, and the effective date of the termination.
6.3 Suspension of Service. In the case of any breach by City of Section 13
(Confidentiality) or Section 15.10 (Crossover Health Property), or in case any amount owed by
City to Crossover Health pursuant to this Agreement or any Statement of Work is 15 days or
more past due, Crossover Health may, upon ten business days' prior notice, and without limiting
its other rights and remedies, initiate the suspension of the provision of and access to the
Services in accordance with Applicable Law, and the Parties will diligently and cooperatively
attempt to resolve the issue. In addition, if Crossover Health reasonably concludes that use of
the Services is likely to cause immediate risk of material harm to Crossover Health, City, a
Crossover Provider, a Member, PHI, or the data of Crossover Health's other customers,
Crossover Health may, without limiting its other rights and remedies, immediately initiate the
suspension of the provision of and access to some or all of the Services in accordance with
Applicable Law. Crossover Health will not be liable to City, a Member, or to any third party for
any Claims arising from or relating to any suspension of the Services in compliance with the
terms and conditions set forth in this subsection.
6.4 Effects of Suspension or Termination.
6.4.1 Generally. Upon any termination of this Agreement, each Statement of
Work hereunder will automatically terminate. Within 30 days of the effective date of termination
or expiration of this Agreement, Crossover Health will invoice City for a final settlement of the
amounts accrued for fees under this Agreement and any applicable Statement of Work.
Termination or suspension of this Agreement or any Statement of Work for any reason shall not
release either Party hereto from any liability which, at the time of such termination or
suspension, has already accrued to the other Party or which is attributable to a period prior to
such termination or suspension, nor preclude either Party from pursuing any rights and
remedies it may have hereunder or at law or in equity with respect to any breach of this
Agreement. City will be obligated to pay Crossover Health all amounts due under this
Agreement and any Statement of Work, including amounts due for Services rendered up to and
including the date of termination, and in the event of suspension, including amounts due for
Services rendered after the date of suspension to the extent Crossover Health continues to
work to transition care of a Member.
6.4.2 Member Care. Crossover Health will stop providing Services to the extent
relating to the terminated portion of this Agreement or applicable Statement of Work on the
effective date of suspension or termination of this Agreement or applicable Statement of Work.
Notwithstanding the foregoing, the effective date of termination or suspension of Services will
occur only after Crossover Health has made reasonable efforts to ensure that no patient is
abandoned from active treatment and is appropriately transitioned to another qualified
healthcare provider, which transition will take no more than 60 days for any patient. City will pay
the price provided for under any applicable Statement of Work for Services provided by
Crossover Health to make such Member transitions.
6.4.3 Transition to Successor Vendor. Provided that Crossover Health has
not terminated this Agreement pursuant to Section 6.2.3 or Section 6.2.5, Crossover Health will
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cooperate with City to transition the Services to any successor vendor selected by City (the
"Successor Vendor") during the period between notice of termination or non -renewal of this
Agreement through the effective date of termination. Crossover Health will provide to the
Successor Vendor, at no cost to City or Successor Vendor, subject to Applicable Law, a copy of
all Records in Crossover Health's possession, subject to the Successor Vendor entering into
Crossover's standard Medical Records Custodial Agreement pursuant to which the Successor
Vendor will be responsible to assume Crossover Health's legal obligations for the custody and
maintenance of the Records prepared in connection with the services provided by Crossover
Health hereunder (and those of the Predecessor Vendor, as defined herein, if applicable) and to
respond to requests for Records from patients and third parties. In the event City or Successor
Vendor requires transition assistance beyond the effective date of termination, or requires data
conversion of such Records to a different format, City will reimburse Crossover for its actual and
reasonable costs and expenses for such services, without markup, including but not limited to
labor costs and third party vendor expenses, and including any necessary software licenses and
labor to perform data conversion.
6.4.4 Health Center Closure, Services Reduction or Transition and
Liquidated Damages. In the event that City materially reduces services provided by Crossover
Health other than through termination or non -renewal of this Agreement or any SOW, in a
manner that necessitates a reduction in force of Crossover Personnel, to close an Exclusive
Health Center, or to transition management of an Exclusive Health Center to a Successor
Vendor, such action will result in damages to Crossover that are difficult or impossible to
quantify with certainty. Therefore, the Parties agree that, in such an event, the City shall pay
Crossover Health liquidated damages in the amount of $226,500, representing a reasonable
estimate of the expense Crossover will incur to manage the closure, provide severance to
employees, and terminate, cancel or fulfill equipment leases and other contractual or non -
contractual obligations. This liquidated damages payment shall be the sole and exclusive
remedy for Crossover with respect to such material reduction of services. The parties agree
that this provision does not constitute a penalty but is intended to fairly compensate
Crossover for losses incurred due to a material reduction in services or material disruption not
caused by Crossover. For the purposes of this provision, "materially reduce" shall mean a
reduction of services by more than forty percent (40%).This liquidated damages provision shall
not apply to a termination or non -renewal of the Agreement by City. In addition to liquidated
damages, City shall also pay the actual cost incurred by Crossover to transfer, ship, maintain,
convert data, and respond to requests for Records.
6.4.5 Insurance Coverage after Agreement Termination or Expiration.
Following expiration or termination of this Agreement, Crossover Health shall continue to
maintain claims made professional liability coverage related to the Services provided by
Crossover Health under this Agreement ("Tail Coverage"). The cost for such Tail Coverage shall
be calculated based on the professional liability allocation charged for the year during which
such termination or expiration occurs and shall be equal to an additional two year's cost of
professional liability coverage. Should Crossover Health terminate this Agreement for material
default or substantial non -monetary breach by the City pursuant to Section 6.2.3, City shall pay
Crossover Health for the Tail Coverage within 30 days following the effective date of expiration
or termination of this Agreement. If City fails to pay Crossover Health for the Tail Coverage, then
notwithstanding Section 16.8, Crossover Health's obligations under Section 11 to indemnify City
will not survive termination or expiration of this Agreement.
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7. RELATIONSHIP.
7.1 No Business or Other Advice. Unless specifically set forth in an SOW,
Crossover Health does not, and will not, have a role or provide any advice related to the
occupational health programs, including occupational health testing or screening programs, or
policies developed by City, the use of responses to any occupational health screening
questionnaire, the use of Eligible Employees' occupational health test results or other
information collected or generated through the use of performance of the Occupational Health
Services described herein or in any Statement of Work by City, or City's promotion or
description of the Occupational Health Services. For the avoidance of doubt, unless specifically
set forth in an SOW, Crossover Health is not responsible for, and does not assist with, any
occupational health determinations regarding whether an employee is eligible to return to
campus or work, or whether an employee should take, or refrain from taking, any other action.
7.2 Independence; Medical Practice. Crossover Health is an independent entity
providing Services to City and Members. No employment relationship is created by this
Agreement. Crossover Health has the sole discretion to employ, contract with, or otherwise
engage Crossover Providers, and has the sole right and obligation to supervise, manage,
contract, direct, procure, perform or cause to be performed all work to be performed by
Crossover Health and Crossover Personnel. Crossover Health accepts full and exclusive liability
for the payment of, compensation, provision of employee benefits, and all employer
contributions and taxes measured by any payments, to Crossover Personnel. Crossover Health
is responsible to report as income to the appropriate government agencies all compensation
received pursuant to this Agreement and to pay all applicable taxes thereon. At all times during
the Term of this Agreement, Crossover Health will retain its independent status in performing
the Services, subject to the specific terms and conditions of this Agreement and the
Statement(s) of Work. Nothing in this Agreement is intended to create or to be construed as the
existence of a partnership, joint venture or agency relationship between the Parties. Crossover
Providers will provide Services to Members based on the independent medical judgment of
such Crossover Providers in accordance with all Applicable Laws, the terms of this Agreement,
the prevailing standards of medical care for the provision of Services, and professional duties of
Crossover Health, all of which will be determined by Crossover Health and the Crossover
Providers alone in compliance with applicable scope of practice laws. City will not act or assert
authority in any manner that would constitute the unlawful practice of medicine. City will not
have or exercise control or direction over the methods by which Crossover Health or any
Crossover Provider performs professional services pursuant to this Agreement or with respect
to medical decision -making and, notwithstanding any other provision of this Agreement, City will
cooperate with Crossover Health and Crossover Providers to enable them to exert appropriate
control over such methods and carry out such decision -making. Medical decision -making will
also include the recruiting, hiring, onboarding, training, development, discipline and termination
of Crossover Personnel, including Crossover Providers.
7.3 Restrictions on City. City may not, except as expressly permitted herein or in a
separate agreement between City and Crossover Health: (a) remove or otherwise modify any
copyright or proprietary rights notice printed or stamped on, affixed to, or encoded or recorded
in, or otherwise associated with the products or services of Crossover Health or its licensors that
accompany or are used in connection with the Services or the Member Technology; (b) sub-
license, sell, rent, lease, timeshare, transfer, assign, distribute, display, host, outsource, pledge
as security, or otherwise commercially exploit the Member Technology or Documentation, or its
Access to the Member Technology, or otherwise make it available to any third party; (c) create,
recreate, the source code for the Member Technology, or modify, adapt, make derivative works
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of, disassemble, decompile, reverse compile, or reverse engineer any part of the Member
Technology or Documentation (except to the extent such prohibition is limited by Applicable
Law); (d) Access or use (or permit third parties to Access or use) the Services or Member
Technology in order to build or support any products or services competitive with the Services
or the Member Technology; (e) use any Member PHI received by City from Crossover Health or
otherwise processed by City on behalf of Crossover Health, except as permitted by Applicable
Law and/or one or more applicable Authorizations; (f) use, or permit its Eligible Population to
use or Access the Member Technology in a non-standard and/or excessive manner that causes
undue strain or stress on the Crossover Health network; (g) use any front-end code for any
purpose outside of the intended design and implementation of City's authorized use of the
Member Technology. All products and services provided by Crossover Health may be used for
lawful purposes only. Transmission or storage of any information, data or material in violation of
any United States Federal, State or local laws is strictly prohibited. The Member Technology
and Documentation are proprietary information of Crossover Health. City acknowledges and
agrees that the Member Technology and Documentation, and components thereof, are subject
to copyright, trade secret and other intellectual property protections in favor of Crossover Health
and its licensors. No title or right, or any intellectual property or other right, express or implied, is
transferred to City by virtue of this Agreement. The license granted hereunder is limited solely to
the rights set forth herein.
8. SERVICE COMPLIANCE.
8.1 Crossover Providers Licensure, Certification, and Registration. Crossover
Health will employ Crossover Providers that are duly licensed, qualified, and authorized to
provide the Services in accordance with all Applicable Laws. Crossover Health will require that:
8.1.1 each Crossover Physician have and maintain an unrestricted license to
practice medicine in the locations in which they are providing Services; and
8.1.2 each Crossover Provider: (a) be and remain eligible and licensed and/or
certified to the extent required by Applicable Law; (b) if eligible, have and maintain a valid and
unrestricted United States Drug Enforcement Administration registration including licensure to
provide Schedule II-V medications to the extent required by Applicable Laws; and (c) have and
maintain Basic Life Support (BLS) certification.
8.1.3 Crossover Health Business Permits and Professional Licensure.
Crossover Health has, or will obtain, and will maintain all designations, licenses, permits,
registrations, authorizations, accreditations, approvals and certifications as required by
Applicable Law to provide the Services and operate the Health Centers during the Term.
8.2 Member Support Materials and Service Coordination.
language:
8.2.1 Plan Documents.
a. City will include in the Summary Plan Document for the Plan the following
"Crossover Health does not provide billed services for Medicare or Medicaid
beneficiaries, nor does it submit claims to Medicare or Medicaid. Referrals or
prescriptions ordered by Crossover Health providers may not be covered by
Medicare or Medicaid, and Members should check with Medicare or Medicaid to
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find out whether claims for any prescriptions, orders for secondary care, or
referrals to specialists provided by Crossover Health providers will be accepted
by Medicare or Medicaid."
b. City will provide to Crossover Health with appropriate resources,
reference materials, collateral, access to databases, and other information, assistance,
materials, cooperation and other support as may be reasonably necessary from time to time for
Crossover Health to provide Services to Members, including, but not limited to the following
documents, together with such supplementary documents and information as may be
reasonably requested by Crossover Health from time to time in connection with the Services: (a)
plan documents and all amendments thereto for the Plan; (b) copies of any summary plan
descriptions, summaries of material modifications, employee handbooks and any other written
communications (or a description of any oral communications) relating to the Plan; and (c)
details on service types and quantities covered and applicable cost -sharing information for
services covered under the Plan. City will provide Crossover Health with prompt notice of any
amendments, supplements and/or updates to such documents and information during the term
of this Agreement. In the event of a conflict between the terms of the Plan and any document
noted in subsection (b) and (c) above, Crossover Health will rely on the terms of the Plan unless
specifically instructed otherwise by City in writing. City will ensure it provides updated eligibility
information and cost -sharing rules to Crossover Health.
C. Crossover Health will be entitled to rely on Plan documents provided by
City without verifying their accuracy or compliance with Applicable Law.
d. Crossover Health shall not be responsible for determining the cost -
sharing requirements applicable to specific Services; cost -sharing obligations, if any, are
governed by the Plan design and communicated to Crossover Health by City or its designated
third -party administrator. Crossover Health's clinical decisions are made independently of, and
are not influenced by, the existence or amount of Member cost -sharing.
8.3 Status as to Plan; Not Insurance or a Guaranty of Healthcare Benefits.
8.3.1 Except as provided by Applicable Law, Crossover Health will not serve as
any health or welfare plan's "trustee," "administrator' or "named fiduciary," and is not a fiduciary
or other agent or representative or to be in a sponsor relationship to any Plan or any other
person. Crossover Health will not be responsible for making any final determinations regarding
whether any Service is covered under any Plan, or for making any final eligibility or coverage
determinations. Crossover Health will comply with all Applicable Laws related to the
administration of claims or appeals of adverse claims determinations, including without limitation
ERISA Section 503 and 29 C.F.R. §2560.503-1. Crossover Health shall coordinate with City's
administrator or named fiduciary to the extent reasonably necessary regarding the handling of
claims, appeals of adverse claims determinations, calculation of an individual's year-to-date
deductibles and out-of-pocket maximums accumulators, and any lawsuits, proceedings or other
actions for benefits.
8.3.2 Crossover Health disclaims any responsibility for legal compliance by the
Plan with Applicable Laws, including compliance with ERISA Section 406(a). Crossover Health
does not exercise discretion or control over and does not represent City or any Plan, or either of
their respective assets, policies, payments, interpretations, practices or procedures.
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8.3.3 Crossover Health has no duty, now or in the future, to determine whether
the Plan complies with Applicable Laws, including but not limited to HIPAA; the Internal
Revenue Code of 1986; ERISA; or the Patient Protection and Affordable Care Act of 2010, as
amended by the Health Care and Education Reconciliation Act of 2010, as further amended,
and no duty to determine whether the Plan or the Plan design avoids any penalties or fees that
may be assessed under any Applicable Laws.
8.3.4 Crossover Health shall rely on Plan -supplied benefit design and cost -
sharing terms for the purpose of implementing services in compliance with ACA-mandated
coverage of preventive services, including contraception. The Plan sponsor is solely responsible
for determining the applicability of any exemption.
8.3.5 Crossover Health will act in no way as an insurer, indemnitor, payor,
designer, guarantor or underwriter of health care benefits. Crossover Health does not collect
revenue through premium payments and nor does it pay provider claims using collected
premiums.
8.4 Crossover Health Credentialing; In -Network Status. Crossover Providers are
credentialed by Crossover Health. City will ensure Crossover Health and Crossover Providers
are "in -network" with the Plan specified by City to the extent necessary to effectively provide the
Services. For the sake of clarity, being "in -network" does not mean Crossover Health will be
credentialed by the Plan.
8.5 Provider Compliance. Crossover Health will require all Crossover Providers
delivering Services to: (a) comply with all applicable obligations, prohibitions, covenants and
conditions imposed on Crossover Health and Crossover Providers pursuant to this Agreement,
(b) adhere to currently approved methods and practices in such Crossover Provider's
professional specialty, and (c) comply with applicable scope of practice laws.
8.6 Supervision Services. Crossover Health will cause a duly qualified Crossover
Physician to provide overall medical direction and supervision services with regard to the
Services provided by Crossover Health. Crossover Health will require each duly qualified
Crossover Physician to supervise and coordinate the activities of non -physician Crossover
Providers in accordance with both medical and professional supervision requirements of
Applicable Law, the terms of this Agreement and Crossover Health's applicable policies and
procedures.
8.7 Modification, Suspension, or Termination for Legal Cause.
8.7.1 Should either Party reasonably conclude, based upon the opinion of its
legal counsel, that any portion of this Agreement is or may be in violation of Applicable Law,
then the applicable provision hereof will be deemed suspended. In no event will suspension be
construed to relieve either Party's obligations under this Section 8.8 and the Parties will
immediately commence good faith negotiations to amend this Agreement as may be necessary
to comply with Applicable Law.
8.7.2 If a Party reasonably concludes that any change or proposed change to
Applicable Law would materially alter the amount or method of compensating Crossover for
Services performed hereunder, or would materially increase the cost of Crossover's
performance hereunder, the Parties agree to negotiate written modifications to this Agreement
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as may be necessary to reflect changes in compensation necessitated by such changes in
Applicable Law.
8.7.3 In the event the Parties cannot mutually agree on an amendment to this
Agreement under Section 8.8.1 or 8.8.2 within ninety (90) days, then either Party may terminate
this Agreement by providing forty-five (45) days prior written notice to the other Party.
8.7.4 If, in the opinion of legal counsel selected by Crossover Health, this
Agreement or the performance of any term or condition of this Agreement is likely to (a)
jeopardize the licensure, certification, accreditation or other status of Crossover Health or any
Crossover Provider, either on its face or as a result of judicial, administrative, or a regulatory
agency interpretation, or (b) materially affect the ownership structure of Crossover Health under
Applicable Law, including without limitation any state or federal anti -kickback or self -referral
laws, then Crossover Health, upon no less than ten (10) days prior written notice to the City,
may amend this Agreement so that it will not be likely to jeopardize such licensure, certification,
accreditation or other status or affect the ownership structure of Crossover Health. Any material
amendment shall be subject to the approval and ratification of City Council.
9. INSURANCE.
9.1 Crossover Insurance and Indemnity
9.1.1 Crossover shall, at Crossover's sole cost and expense, procure and will
maintain in full force and effect throughout the Initial Term of this Agreement and all Renewal
Terms, professional liability insurance covering services provided under this Agreement. Such
insurance shall cover all Crossover Providers and shall be in amounts not less than those
customarily required or recommended for similarly situated health care providers under
applicable Colorado law, and in no event less than $1,000,000 per occurrence and $3,000,000
annual aggregate, unless a different limit is expressly required by law. The insurance policy
shall be issued by a carrier authorized to do business in the State of Colorado and rated A- or
better by A.M. Best. Crossover shall provide evidence of such coverage to City upon execution
of this Agreement and annually thereafter upon request. Crossover shall provide prompt written
notice to City of any cancellation, material change, or non -renewal of such insurance. Failure to
maintain the required insurance shall constitute a material breach of this Agreement.
9.1.2 Crossover agrees that it has procured and will maintain during the Initial
Term of this Agreement and for all Renewal Terms, such insurance as will protect it and City
from claims under workers' compensation acts, claims for damages because of personal injury
including bodily injury, sickness or disease or death of any of its employees or of any person
other than its employees, and from claims or damages because of injury to or destruction of
property including loss of use resulting therefrom; and such insurance will provide for coverage
in such amounts as set forth below:
a. Commercial General Liability Insurance. Crossover shall secure and
maintain during the Initial Term of this Agreement and for all Renewal
Terms, Commercial General Liability Insurance issued to and covering the
liability of Crossover with respect to all work performed by it and all of its
employees, agents, or subcontractors under the Agreement, to be written
on a commercial general liability policy form. This insurance shall be
written in amounts not less than a combined single limit of $1,000,000 for
each occurrence and aggregate for bodily injury including death and
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property damage. This policy of insurance shall name the City of Pueblo,
its agents, officers, and employees as additional insureds. This policy shall
have all necessary endorsements to provide coverage without exclusion
for the services provided and contemplated by this Agreement.
b. Commercial Automobile Liability Insurance. Crossover shall procure and
maintain during the Initial Term of this Agreement and for all Renewal
Terms, Commercial Automobile Liability Insurance. This insurance shall
be written with limits of liability of $1,000,000 each accident for bodily
injury and property damage. This insurance shall include
uninsured/underinsured motorist coverage and shall protect Crossover
from any and all claims arising from the use both on and off the site of the
project of automobiles whether owned, leased, hired or used by
Crossover.
C. Workers' Compensation Insurance. Crossover shall procure and maintain
during the Initial Term of this Agreement and for all Renewal Terms,
workers' compensation insurance complying with statutory requirements in
Colorado and in any other state or states where the work is performed.
The Workers' Compensation policy shall contain an endorsement waiving
subrogation against the City.
9.1.3 Crossover shall furnish to City a certificate or certificates of insurance
showing compliance with this Section 8. Crossover shall obtain special endorsement from its
insurance carrier that provides that the insurance shall not be cancelled or non -renewed until
ten (10) days after written notice has been given to City and provide a copy of such
endorsement to City. Crossover shall promptly notify City of any substantial change in, or
cancellation, or non -renewal of any such insurance.
10. REPRESENTATIONS.
10.1 Mutual Representations. Each Party to this Agreement represents with respect
to itself that: (a) it has full power to enter into this Agreement and to carry out its obligations
under this Agreement; (b) no representation or promise not expressly contained in this
Agreement has been made by the other Party or by the other Party's agents, employees,
representatives or attorneys; (c) this Agreement is not being entered into on the basis of, or in
reliance on, any promise or representation, expressed or implied, other than such as are set
forth expressly in this Agreement; (d) it has been represented by legal counsel of its own choice
or has elected not to be represented by legal counsel in this matter; (e) the execution and
delivery of this Agreement has been duly approved by all necessary action on the part of such
Party, including approval by such Party's governing body, if necessary; (f) the signatory to this
Agreement on behalf of such Party has the power and authority to execute and deliver this
Agreement on behalf of such Party; and (g) upon execution and delivery of this Agreement by
such Party's signatory, this Agreement will constitute a valid and legally binding obligation of
such Party, enforceable against such Party in accordance with its terms.
10.2 Representations of Crossover Health. Crossover Health represents that: (a) it
will perform the Services in a professional, workmanlike manner, with the degree of skill and
care in accordance with community standards and applicable scope of practice laws; and (b) it
will perform the Services in accordance with applicable Statement(s) of Work and the Services
will be correct and appropriate for the purposes stated therein.
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10.3 Representations of City. City hereby represents that: (a) the performance of its
obligations and use of the Services (by City and the Members) will not violate any Applicable
Laws or cause a breach of any agreements with any third parties; and (b) it will abide by all
Applicable Laws. City represents that any information it has given or gives to Crossover Health
in connection with the Parties' performance of this Agreement is or will be, as the case may be,
complete and accurate. Further, City represents that it has and will take reasonable steps to
ensure that any directions given to Crossover Health, or action it has taken or will take pursuant
to this Agreement, is or will be, as the case may be, in compliance with Applicable Law and the
terms of this Agreement.
10.4 Warranty Disclaimers. Except for the representations expressly set forth in this
subsection, the Member Technology is provided strictly on an "as is" and "as available" basis
without warranty of any kind, express, implied, or statutory. The express warranties set forth in
this Agreement are in lieu of, and Crossover Health specifically disclaims, all other warranties
whether express, implied, or statutory, including the implied warranties of merchantability,
fitness for a particular purpose, and non -infringement. Without limiting the foregoing, City
specifically acknowledges that Crossover Health makes no warranty that the Member
Technology will meet City's or Members' requirements or be error -free or without interruption,
suspension or failure; that all errors will be corrected; that the Member Technology will be free
of vulnerability to intrusion or attack; or that City's or Members' specific requirements will be
satisfied. City acknowledges that Crossover Health does not control the transfer of information
or data over communications facilities, networks, platforms, devices, and other systems,
including the internet and the platforms and devices through which the Member Technology
may be made Accessible, and that the Member Technology may be subject to limitations,
delays, and other problems inherent in the use of such communications facilities, networks,
platforms, devices, and other systems. Notwithstanding the foregoing, Crossover represents
and warrants that it shall make reasonable efforts standard within the industry to protect
Member Technology and Members' Personal Data from intrusion or attack and will at all times
comply with the requirements of the HIPAA Laws and all other applicable privacy laws as set
forth in Section 14 hereof. Crossover Health will not be liable for any alteration, theft,
destruction, or loss of City's or Members' information, data, files, or programs as a result
thereof, except to the extent such alteration, theft, destruction, or loss results from the
negligence or intentional misconduct on the part of Crossover Health or its personnel.
11. DEFENSE AND INDEMNITY. In addition to all other rights and remedies either Party
has under law and equity, the following indemnification provisions are applicable.
Indemnification rights, in addition to the rights herein, include all rights of indemnification,
including without limitation, equitable indemnification, available at law. This section will survive
the expiration of this Agreement for the statutory period of limitations.
11.1 Obligations.
11.1.1 Crossover Health will protect, defend, indemnify and hold harmless City
and its directors, officers, agents, and employees against all Claims, liabilities, damages, losses,
costs, fees (including reasonable legal fees), and expenses, for whatever nature, including
Claims for contribution and/or indemnification, for injuries to or death of any person or persons,
or damage to the property or other rights of any person or persons to the extent arising out of
and attributed to the negligent acts, errors, or omissions of Crossover Health. Crossover Health
will protect, defend, indemnify and hold harmless City and its directors, officers, agents, and
employees against all Claims, liabilities, damages, losses, costs, fees (including reasonable
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legal fees), and expenses, for whatever nature, including Claims for contribution and/or
indemnification, in connection with any third -party legal proceeding to the extent arising from:
a. Crossover Health's breach of warranty, negligence, willful misconduct,
fraud, misrepresentation, or violation of Applicable Laws;
b. any property damage, personal injury, or death related to Crossover
Health's performance of the Services (except for claims subject to indemnity in Section 11.1.2,
which shall be handled in accordance with that Section);
c. any breach of Section 13 (Confidentiality) or Section 14 (Data Privacy and
Security) or applicable data protection laws;
d. any allegation that use of the Services infringes or misappropriates any
third party's rights, including Intellectual Property Rights.
11.1.2 Notwithstanding Section 11.1.1 above, Crossover Health, alone, will
defend and indemnify City and its Affiliates, directors, officers, and employees against all
settlement amounts approved by Crossover Health (such approval not to be unreasonably
withheld, conditioned or delayed) and any liabilities, damages, losses, costs, fees (including
reasonable legal fees), and expenses in connection with any third -party legal proceeding to the
extent arising from a medical malpractice claim resulting from the Health Services provided by
Crossover Providers to Members hereunder.
11.2 Exclusions and Limitations.
11.2.1 This Section 11 (Defense and Indemnity) will not apply to the extent the
City fails to notify Crossover in writing promptly upon learning of any Claim or suit for which
indemnification may be sought resulting in Crossover being prejudiced thereby, or the
underlying allegation arises from:
a. modifications to the Services not authorized or made by the other party; or
b. compliance with designs or instructions provided the applicable party in
writing.
11.2.2 Crossover is not required to spend more than an aggregate amount
exceeding the lesser of (a) the amount actually paid and due and payable by City to Crossover
Health hereunder for the Services giving rise to such liability during the 12 months immediately
preceding the accrual of such liability, or (b) the limits of Crossover Health's applicable
insurance policy(ies) that cover such liability, if any, pursuant to this Section 11 (Defense and
Indemnity), including without limitation, on attorneys' fees, court costs, settlements, judgements,
and reimbursement of costs.
11.3 Control of Defense. The City will tender primary control of the indemnified
portion of the legal proceeding to Crossover, but:
11.3.1 the City has the right to reject controlling counsel chosen by the
Crossover if the City reasonably believes there is a conflict of interest, has reasonably
attempted to obtain a conflict waiver and/or it is not feasible to do so;
11.3.2 the City may appoint its own co -counsel at its own expense;
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11.3.3 any settlement will require the City's prior written consent, which may
require approval of City Council by ordinance;
11.3.4 any settlement will release with prejudice all indemnified Claims against
the City, its successors and assigns, and its officers, employees and agents, arising out of the
Claim for which indemnity is sought; and
11.3.5 Crossover agrees it will not join or attempt to join the City, its insurers,
successor or assigns or its officers, employees and agents in any capacity in any action that
may be or is brought against Crossover arising out of its obligations or any acts and/or
omissions of Crossover, its employees, licensees, and invitees, and/or those of its Contractors
and/or their agents, subcontractors, licensees, invitees or employees under this Agreement.
12. LIMITATION OF LIABILITY.
12.1 Consequential Damages Waiver. Except for the amounts to be paid in
accordance with Section 6.4 (Effects of Suspension or Termination) or as otherwise expressly
set forth in an SOW, in no event will any Party be liable, whether under contract, warranty,
indemnity, tort, statute, or other legal theory, for special, incidental, consequential, or indirect
damages, including loss of business, loss of data, and the cost of procuring substitute products
or services, whether or not it has been advised or is aware of the possibility of such damages,
provided that nothing in this sentence shall be deemed to relieve either Party of any obligation it
may have under this Agreement for any such damages asserted by an unaffiliated third party.
12.2 Limitation of Damages. Crossover Health will not be liable for any damages in
an aggregate amount exceeding the lesser of (a) the amount actually paid and due and payable
by City to Crossover Health hereunder for the Services giving rise to such liability during the 12
months immediately preceding the accrual of such liability or (b) the limits of Crossover Health's
applicable insurance policy(ies) that cover such liability. It is intended that this limitation apply to
any and all liability or cause of action however alleged or arising, unless otherwise prohibited by
law, including but not limited to negligence, breach of contract, or any other Claim whether in
tort, contract or equity. In addition, Crossover Health will have no liability to City or to any
Member for any action or Claim alleging misrepresentation, misappropriation, or infringement
based upon (x) any use of the Member Technology, or a component thereof, in a manner other
than as specified by Crossover Health in this Agreement; (y) any use of the Member
Technology in combination with other services, equipment, devices, software, systems, or data
not supplied by Crossover Health, to the extent such action or Claim would not have arisen but
for such combination; or (z) any alteration, modification, or customization of the Member
Technology, or a component thereof, by any person other than Crossover Health (without
written authorization of Crossover Health), to the extent such action or Claim would not have
arisen but for such alteration, modification, or customization.
12.3 Allocation of Risk. The sections on indemnification, limitation of liability and
disclaimer of warranties allocate the risks in this Agreement between the Parties. This allocation
is an essential element of the basis of the bargain between the Parties.
13. CONFIDENTIALITY.
13.1 "Confidential Information" means any information that is disclosed by one
Party ("Discloser") to the other ("Recipient"), which, at the time it is disclosed, in any form, is
identified or designated by Discloser as "confidential or proprietary" or reasonably should be
known by Recipient to be proprietary or confidential information of Discloser. Without limiting the
foregoing, Confidential Information includes this Agreement (including the terms, conditions and
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pricing contained herein, and any dispute hereunder), information relating to the business and
affairs of the Discloser, including, without limitation, research, development, products, methods
of manufacture, trade secrets, business plans, customers, finances and personnel data.
Confidential Information does not include any information that: (i) is or becomes available in the
public domain through no wrongful act of the Recipient; (ii) was known to the Recipient prior to
its disclosure by the Discloser without breach of any obligation owed to the Discloser; (iii) is
rightfully disclosed to the Recipient by a third party without an obligation of confidentiality owed
to the Discloser and known to the Recipient; or (iv) is independently developed by the receiving
Party without the use of or reference to the Discloser's Confidential Information.
13.2 Obligations. As between the Parties, each Party retains all ownership rights in
and to its Confidential Information. Recipient may use the Confidential Information of the
Discloser solely as necessary for the performance of this Agreement. Recipient will hold
Discloser's Confidential Information in strict confidence and use at least the same degree of
care it uses to protect its own highly confidential and proprietary information, but in no case with
less than reasonable care. Recipient will take reasonable measures to protect the secrecy of,
and avoid disclosure and unauthorized use of, the Discloser's Confidential Information.
Recipient will not, either during the Term of this Agreement or thereafter, use or disclose the
Discloser's Confidential Information without the prior written consent of Discloser, and will not
copy, reproduce, modify, disassemble, decompile, reverse engineer, or create other works from
any materials disclosed by Discloser, determine the composition of any formulations,
prototypes, software or other tangible objects that embody the Discloser's Confidential
Information, or remove any proprietary markings from any Confidential Information, except: (a)
as permitted in this Agreement; or (b) as reasonably necessary for the purpose of performing its
obligations or enforcing its rights under this Agreement.
13.3 Permitted Disclosures. Recipient may disclose Confidential Information in
connection with the performance of this Agreement only to its directors, officers, legal counsel,
financial advisors, accountants, personnel, and Affiliates, employees, consultants,
subcontractors, stop loss carriers, agents, auditors and other advisors, or those of its Affiliates,
who have a legitimate business need to know, have been notified of this confidentiality
obligation, and are bound by either a written or professional obligation of confidentiality at least
as protective as that imposed in this Agreement (collectively, "Representatives"). Recipient will
remain responsible for each such Representatives' compliance with the terms of this
Agreement. Recipient will notify Discloser promptly in the event of any loss, use or disclosure of
Confidential Information not authorized under this Agreement. Each Party agrees that it will
abide by and reproduce and include any restrictive legend or proprietary rights notice that
appears in or on any Confidential Information of the other Party (or any third -party owner) that it
is authorized to reproduce, and will not remove, alter, cover or distort any trademark, trade
name, copyright or other proprietary rights notices, legends, symbols or labels appearing on or
in any Confidential Information of the other Party (or any third -party owner).
13.4 Legally Compelled Disclosures. Notwithstanding the foregoing, if Recipient is
required to disclose Confidential Information pursuant to a requirement of Applicable Law: (a)
the Recipient will give advance notice of such disclosure requirement to the Discloser (to the
extent legally permissible) and give the Discloser reasonable opportunity to object to and
contest such disclosure, including seeking a protective order or other appropriate remedy; and
(b) the Recipient will take reasonable action necessary to not disclose the Discloser's
Confidential Information that is not required to be disclosed to satisfy any legal requirement
(including through redaction of sensitive commercial information, including key terms of this
Agreement, or otherwise) and will use reasonable efforts to secure confidential treatment of any
such information that is required to be disclosed. This Agreement imposes no obligation upon
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Recipient with respect to Discloser's Confidential Information, which: (w) was rightfully in the
possession of, or was rightfully known by Recipient without an obligation to maintain its
confidentiality prior to receipt from Discloser; (x) is or becomes generally known to the public
through no fault or breach on the part of Recipient or any person to whom Recipient disclosed
such information; (y) is obtained by Recipient in good faith from a third party having the right to
disclose it without an obligation of confidentiality; or (z) is independently developed by Recipient
without the use of Confidential Information.
13.5 Return or Destruction of Confidential Information. Upon termination of this
Agreement or the earlier written request by Discloser, Recipient promptly will return or destroy
(or cause to be returned or destroyed) all documents and other tangible objects containing or
representing Discloser's Confidential Information and all copies thereof. Notwithstanding the
foregoing, Recipient and its Affiliates may, pursuant to its standard retention policy, retain one
archival copy and copies contained on routine back-ups of its email system subject to the
confidentiality provisions of this Agreement. To the extent Confidential Information has been
electronically archived by the Recipient in accordance with its records retention, security and/or
disaster recovery procedures, and/or exists only in the form of latent data and other non -logical
data types that are generally considered inaccessible without the use of specialized tools and
techniques, will be subject to destruction in due course. Any information so retained will remain
subject to the confidentiality restrictions set forth in this Agreement for the term of this
Agreement, and thereafter, in accordance with Recipient's policies and procedures regarding
the handling and safe -keeping of client confidential information, which policies and procedures
are reasonably designed to preserve the confidentiality of such retained information.
13.6 The Parties agree that nothing in this Agreement shall be construed as a
limitation of Provider's rights or obligation to discuss with any Member matters pertaining to the
Member's health; nor of Crossover Health's right, in compliance with HIPAA and other
applicable Laws, to use reports, data, or other information derived from its performance
hereunder for marketing purposes or conducting outcomes research and publishing the results
of such research; nor of Crossover Health's right, with prior written consent from City, to
reference or list City's name and a general description of Crossover Health's services and
performance outcomes under this Agreement. This Section 13 shall not apply to protected
health information, as defined in HIPAA, the use and disclosure of which shall be subject to
HIPAA and applicable state law and the terms of the Business Associate Terms between the
applicable Parties.
14. DATA PRIVACY AND SECURITY.
14.1 Personal Data and Protected Health Information. As a result of this
Agreement, Crossover Health and Crossover Personnel may obtain Personal Data and PHI
relating to an identified or identifiable individual and in relation to which Crossover Health is
providing the Services under this Agreement. The Parties acknowledge that any Personal Data
or PHI collected, accessed, processed, maintained, stored, transferred, disclosed, or used by a
Party in relation to this Agreement, shall be done for its own benefit and not on behalf of the
other Party, and each Party shall be independently and separately responsible for their own
such activities. The Parties further acknowledge that City does not determine the purpose and
means of the processing of Personal Data or PHI subject to this Agreement by Crossover
Health, which are determined by Crossover Health solely in its own independent capacity.
14.2 Crossover Health may make such Personal Data and PHI available via the
Member Technology to Members and Crossover Personnel, solely to the extent permitted by
Applicable Law. Crossover Health will require any Crossover Personnel assigned to perform the
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Services to collect, access, maintain, use, process and transfer Personal Data and PHI in
accordance with Crossover Health's policies and procedures, Applicable Laws, consents and
Authorizations from Members, and the requirements under this Agreement, including without
limitation, those set forth in this Section 14.
14.3 Compliance with Health Information Privacy Laws. Crossover Health and City
acknowledge that each of Crossover Health and Plan is a Covered Entity as defined by HIPAA,
and is also subject to other applicable patient privacy laws. City, Plan, Crossover Health and
Crossover Personnel will at all times comply with the requirements of, and this Agreement and
all SOWs hereunder will be read and interpreted to allow Crossover Health to comply with the
HIPAA Laws and all other applicable privacy laws. Additionally, any reference to access by City
in this Agreement will not include access to Protected Health Information, unless permitted by
HIPAA. Crossover Health and Crossover Personnel are required to exercise their own judgment
in determining the purposes and means of processing any PHI when providing the Services.
Accordingly, Crossover Health acts as an independent controller (or equivalent legal status),
and not as a processor (or equivalent) under City's control or as a joint controller with City.
14.4 Security Procedures. Crossover Health will maintain commercially reasonable
operating standards and security procedures, in accordance with the HIPAA Laws when related
to Protected Health Information, as that term is defined therein, and will use commercially
reasonable efforts to secure PHI through the use of appropriate physical, technical and
administrative security measures, including, but not limited to, appropriate network security and
encryption technologies that comply with HIPAA and Applicable Law. Subject to Applicable Law
and Crossover Health's internal policies (provided such policies are no less protective than
Applicable Law), Crossover Health will return or destroy (and retain no copies of) all PHI
received from the Plan once such PHI is not needed to perform the Services.
14.5 Business Associate Agreement. To the extent that Crossover Health, City or
the Plan creates, receives, maintains, transmits, uses or discloses PHI from or on behalf of the
other in the performance of a function hereunder or under an applicable Statement of Work in
the capacity of a business associate (as that term is defined in 45 C.F.R. 160.103), the
Business Associate Terms attached hereto as Exhibit C apply to such business associate.
Nothing in this Agreement will be construed to limit any obligations of the Parties under the
Business Associate Terms. In the event of a conflict between (i) any provision of this Agreement
or any Exhibit hereto, and (ii) any provision of the Business Associate Terms, the provision in
the Business Associate Terms, if applicable, will control to the fullest extent permitted by
Applicable Law.
15. RECORDS.
15.1 Crossover Health Member Health Records. Crossover Health and/or
Crossover Personnel will prepare and arrange for the provision of all record keeping services
related to the maintenance and storage of Records, and the Records will remain the property of
Crossover Health and/or the applicable Member pursuant to Applicable Law. Crossover Health's
Records systems will be configured to ensure that only those Crossover Personnel authorized
under HIPAA and other applicable privacy and patient records laws have access to such
Records. City understands and agrees that all of the Records and PHI will be held in strict
confidence and that City will not be entitled to have access to Records in the absence of an
appropriate written authorization from the Member. Without limiting the generality of the
foregoing, and to the extent City seeks information from Crossover Health that may include PHI,
City represents that it is authorized to receive such information, and that either: (i) City has all
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necessary consents and approvals, including those from its employees, their spouses or
dependents, as applicable, to permit requested disclosures of PHI, or (ii) all City representatives
seeking such information are properly authorized representatives of City's Plan. Crossover
Health will supply Members with access to their Records in prompt and reasonable manner in
compliance with the 21 st Century Cures Act, and in a HIPAA standards -compliant format as
required by 45 C.F.R § 164.524 and 45 C.F.R §162 (e.g., consolidated CDA or FHIR interface),
or as otherwise reasonably requested by the patient or their legally authorized representative
(e.g., PDF).
15.2 Occupational Health Records.
15.2.1 Crossover Health and/or Crossover Personnel will prepare Occupational
Health Records and store them in an electronic health records system that is separate from the
electronic health records system in which Crossover Health stores Members' health records.
The Occupational Health Records system will be configured to ensure that only Crossover
Personnel, those individuals designated by City, and other individuals, in all cases solely as
permitted or authorized under Applicable Law, have access to the Occupational Health
Records. Subject to Applicable Law, Occupational Health Records are and shall remain the
property of City. While Crossover Health will maintain copies of the Occupational Health
Records for its own internal and compliance purposes in connection with its role as a provider of
Occupational Health Services, Crossover Health shall act solely as a custodian of such records
during the Term of this Agreement. Upon expiration or termination of this Agreement, Crossover
Health shall:
a. promptly transfer all Occupational Health Records to City or to a
designated third -party custodian selected by City, in a manner and format consistent with
Applicable Law;
b. retain a copy of such records solely to the extent required by law, or in
connection with actual or anticipated legal proceedings; and
c. provide reasonable transition assistance (at City's cost) to ensure
continuity in the management of such records.
15.2.2 Unless otherwise required under Applicable Law, Crossover Health shall
not be responsible for maintaining, storing, or responding to third -party requests for
Occupational Health Records following the expiration or termination of this Agreement.
15.2.3 City shall be responsible for all record retention obligations, access rights,
and compliance requirements with respect to Occupational Health Records, including in
response to regulatory inquiries, litigation holds, or employee requests.
16. MISCELLANEOUS.
16.1 Governing Law; Venue. This Agreement, and all Claims or causes of action
(whether in contract, tort or statute) that may be based upon, arise out of or relate to this
Agreement, or the negotiation, execution or performance of this Agreement (including any Claim
or cause of action based upon, arising out of or related to any representation or warranty made
in or in connection with this Agreement or as an inducement to enter into this Agreement), will
be governed by and enforced in accordance with the internal laws of the State of Colorado,
including its statutes of limitations. Each Party irrevocably agrees to bring any legal action, suit,
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or other proceeding in any way arising out of this Agreement solely and exclusively in the state
or federal courts sitting in Pueblo County, Colorado, and each Party irrevocably accepts and
submits to the sole and exclusive jurisdiction of such courts, generally and unconditionally, with
respect to any action, suit, or proceeding brought by it or against it by the other Party. Each
Party waives any objection to personal jurisdiction or venue in any forum located in that county.
Each Party waives any right to a jury trial in any proceeding arising out of or related to this
Agreement.
16.2 Dispute Resolution.
16.2.1 Scope. Except as expressly set forth herein, the Parties will attempt to
resolve any dispute relating to this Agreement as set forth in this Section 16.3 (including
disputes relating to the breach, termination, or validity of this Agreement or any of its
provisions). If the Parties do not resolve a dispute pursuant to the provisions of this Section, the
Parties may pursue other remedies available to them at law or in equity. Nothing in this Section
16.3. shall prevent a Party from seeking any declaratory, temporary injunctive or other
emergency relief at any time from any court of competent jurisdiction. The dispute resolution
procedures in this subsection shall not apply prior to a Party seeking provisional remedies from
a court of appropriate jurisdiction related to claims of misappropriation or ownership of
intellectual property, trade secrets or Confidential Information, or in aid of arbitration.
16.2.2 Dispute Notice. Except as otherwise expressly provided in this
Agreement, each Party will provide the other Party with written notice of any complaint, alleged
breach, or concern it may have about another Party's performance of obligations under this
Agreement. The Parties will work together in good faith to resolve any dispute. The Party giving
notice shall refrain from instituting the alternative dispute resolution proceedings for a period of
sixty (60) days following such notice. During this period, the Parties shall make good faith efforts
to amicably resolve the dispute without mediation or arbitration. All negotiations pursuant to this
Section 16.3 are confidential and will be treated as compromise and settlement negotiations for
purposes of applicable rules of evidence, except as may be necessary to prepare for or conduct
these dispute resolution procedures or unless otherwise required by law or judicial decision.
16.2.3 No Self -Help. Notwithstanding the dispute resolution process set forth in
this Section 16.3 and the provision for mediation set forth in Section 16.3.4, each Party agrees
to continue to perform its obligations under this Agreement pending dispute resolution and/or
arbitration. For clarity, neither Party shall engage in self-help remedies; for example, Crossover
Health shall continue to provide the Services set forth herein, and City shall continue to pay all
fees as set forth herein without withholding or delaying payment or engaging in offset.
16.2.4 Mediation. Any mediation shall be conducted by a mediator to be
mutually selected by the Parties who has never been employed by either Party (either as an
employee or as an independent consultant of the Party, or by any Affiliate of either Party), by
agreement of the Parties within ten (10) days after provision of the list of potential mediators.
The Parties shall share the costs of the mediator equally. Each Party shall cooperate fully and
fairly with the mediator, and attempt in good faith to reach a mutually satisfactory compromise
of the Dispute. If the Dispute is not resolved within thirty (30) days after it is referred to the
mediator, the parties may agree in writing to submit the dispute to final and binding arbitration,
as specified in Section 16.3.5. (Arbitration). If no agreement to arbitrate the dispute is reached
within sixty (60) days after it is referred to the mediator, either party may file suit in a court of
competent jurisdiction in Pueblo County, Colorado. No writing (whether prepared for mediation
or otherwise), or evidence of anything said or admission made for the purpose of, or pursuant
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to, a mediation or mediation consultation is admissible or subject to discovery, and disclosure of
the evidence shall not be compelled, in any arbitration, administrative adjudication, civil action,
or other noncriminal proceeding in which, pursuant to law, testimony can be compelled to be
given.
16.2.5 Arbitration. Any dispute, Claim or controversy arising out of or relating to
this Agreement or the breach, termination, enforcement, interpretation or validity thereof,
including the determination of the scope or applicability of this agreement to arbitrate, may be
determined by arbitration in PuebloCounty, Colorado before one arbitrator. The arbitration shall
be administered by the American Arbitration Association pursuant to its Arbitration Rules and
Procedures or pursuant to American Health Lawyers Association Alternative Dispute Resolution
Service Rules of Procedure for Arbitration. Judgment on the Award may be entered in any court
having jurisdiction. In no event shall a demand for arbitration be made after the date when
institution of a legal or equitable proceeding based on such Claim, dispute or other matter in
question would be barred under this Agreement or by the applicable statute of limitation.
16.3 Additional Remedies; Equitable Relief. Any remedies at law or equity not
specifically excluded by this Agreement will be available to both Parties. The Parties expressly
acknowledge and agree that a breach of any of the provisions of this Agreement may result in
irreparable harm to the non -breaching Party and, in such case, the non -breaching Party will
have the right to seek to enforce this Agreement and any of its provisions by injunction, specific
performance or other equitable relief without the need to secure a bond, in any event without
prejudice to any other rights and remedies that such Party may have.
16.4 Attorneys' Fees. If any action or proceeding, whether regulatory, administrative,
at law or in equity, is commenced or instituted to enforce or interpret any of the terms or
provisions of this Agreement (excluding any mediation required under Section 16.3 (Dispute
Resolution), the prevailing Party in any such action or proceeding will be entitled to recover its
reasonable attorneys' and paralegals' fees, expert witness fees, costs of suit and expenses, in
addition to any other relief to which such prevailing Party may be entitled, provided, that if a
Party to such litigation, action, arbitration or proceeding prevails in part, and loses in part, the
court, arbitrator or other adjudicator presiding over such litigation, action, arbitration or
proceeding shall award a reimbursement of the fees, costs and expenses incurred by such
Party on an equitable basis. As used herein, "prevailing Party" includes, without limitation, a
Party who dismisses an action for recovery hereunder in exchange for payment of the sums
allegedly due, performance of covenants allegedly breached, or consideration substantially
equal to the relief sought in the action.
16.5 Third Party Beneficiaries. Other than as expressly set forth in this Agreement,
this Agreement is executed and entered into by Crossover Health and City solely for their and
the applicable Plan's benefit, and for no other party (including, without limitation, any individual
employee, officer, director or Contractor of either Party). Nothing in the Agreement shall be
construed to create any liability on the part of City, the Plan, Crossover Health or their
respective directors, officers, shareholders, employees or agents, as the case may be, to any
such third parties for any act or failure to act of any Party hereto. No third party will be
considered a third -party beneficiary under this Agreement, except to the extent that an Affiliate
of City is permitted to enter into a Statement of Work hereunder or, in the case of a Crossover
Health Affiliate, is a Contractor under this Agreement.
16.6 Notices. All notices and other communications provided for herein shall be dated
and in writing and shall be deemed to have been duly given (x) on the date of delivery, if
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delivered personally, (y) on the date of delivery, if delivered by a recognized overnight courier
service, or (z) on the date of delivery, if sent by registered or certified mail, return receipt
requested, postage prepaid, in each case, to the Party to whom it is directed at the following
address (or at such other address as any Party hereto shall hereafter specify by notice in writing
to the other Party hereto):
if to City:
City of Pueblo
Attn: Mayor's Office
1 City Hall Place
Pueblo, CO 81003
hgraham@pueblo.us
with copy to:
City Attorney
City of Pueblo
1 City Hall Place
Pueblo, CO 81003
csiktL@gueb1o.us
if to Crossover
Crossover Health Medical Group, APC
Health:
101 W. Avenida Vista Hermosa, Suite 120
San Clemente, CA 92672
Attn: Legal Department
With copies, which shall not constitute notice, to:
legal@crossoverhealth.com
xoamcrossoverhealth.com
16.7 Survival of Terms. The following provisions will survive termination of this
Agreement: Sections 1 (Definitions), 6_4 (Effects of Suspension or Termination), 12 (Defense
and Indemnity), 13 (Limitation of Liability), 15 (Records), and 16 (Miscellaneous). Section
13 (Confidentiality and Privacy) will survive for three years after the date of termination of this
Agreement.
16.8 Assignment. Neither Party may assign or delegate its rights or obligations under
this Agreement without the other Party's prior written consent, which consent will not be
unreasonably withheld or delayed, and any attempt to do so will be null, void and of no force or
effect, except as otherwise specifically permitted in this Agreement; provided, however, that
Crossover Health may subcontract or delegate to Crossover Health Management Services, Inc.
its obligations hereunder for the provision of staff, equipment, supplies, and administrative,
contracting, technical and non -medical management services, and to other Affiliates the
obligation to provide Services and/or the right to receive payment under this Agreement or any
Statement of Work, and provided further that neither Party's consent will be required in the
event of a merger, acquisition or change of control of the other Party. If a Party undergoes a
Change of Control, the other Party may terminate this Agreement by providing notice of
termination to the other Party within 30 days of receipt of notice of such Change of Control. Any
such termination will be effective no less than 180 days after receipt of such notice of
termination. ("Change of Control" means a transaction or series of transactions by which more
than 50% of the outstanding shares of the target company or beneficial ownership thereof are
acquired within a 1-year period, other than by a person or entity that owned or had beneficial
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ownership of more than 50% of such outstanding shares before the close of such
transactions(s).) The rights and obligations of City and Crossover Health under this Agreement
will be binding upon and inure to the benefit of the Parties' and their respective successors,
assigns, executors and administrators, as the case may be.
16.9 Crossover Health Property. As between Crossover Health, City, and Members,
Crossover Health owns all right, title, and interest in and to (a) the Member Technology and
Services (other than any Records, test results or other medical information pertaining to a
Member), including any and all authorized and unauthorized modifications thereto and
derivative works thereof; (b) any and all work product, designs, drawings, developments,
concepts, inventions, information, data, programs, and software designed, developed, or
distributed as part of the Member Technology and Services, (c) any and all proprietary
information and materials provided by Crossover Health to City or otherwise made accessible to
City by Crossover Health that are related to the Member Technology or Services, including
documentation, software (whether in object code or source code form), text, graphics (including
the underlying web -presentation code of the Member Technology), logos, button icons, images,
and non-public know-how, methodologies, equipment, or processes used by Crossover Health
to operate and maintain the Member Technology or provide the Services, (d) any suggestions or
ideas provided to Crossover Health by City or its Members regarding the Services, and (e) all
patents, copyrights, moral rights, trademarks, trade secrets, and any other form of Intellectual
Property Rights recognized in any jurisdiction, including applications and registrations, related to
any of the foregoing (collectively, "Crossover Health Property"). Nothing in this Agreement or in
the Parties' dealings arising out of or related to this Agreement will restrict Crossover Health's
right to use, profit from, disclose, publish, or otherwise exploit any suggestions or ideas provided
to Crossover Health by City or Members, without compensation or other obligation to City or
Members, or provide City with any rights in the Service, provided however that Crossover
Health will ensure that any such suggestions or ideas are de -identified, to the extent necessary
to avoid disclosure of Confidential Information, prior to any use, disclosure or publishing. This
Agreement is not an agreement of sale, and no title, patent, copyright, trademark, trade secret,
intellectual property, or other ownership rights to any Crossover Health Property are assigned or
otherwise transferred to City or any Member pursuant to this Agreement. For the avoidance of
doubt, Crossover Health reserves all rights not expressly granted by this Agreement and no
licenses are granted by it to any person or entity, including City and Members, whether by
implication, estoppel, or otherwise, except as expressly set forth in this Agreement.
16.10 Interpretation; Severability. The Parties have negotiated this Agreement and its
exhibits with the advice, if desired, from their respective counsel. This Agreement will be fairly
interpreted in accordance with its terms and as if drafted jointly by the Parties hereto and no
presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the
authorship of any provisions of this Agreement. The headings and captions herein are included
for reference purposes only and will not affect the construction or interpretation of the provisions
hereof. When used herein, the word "including" will not be construed as limiting. Unless the
context otherwise requires, the masculine includes the feminine and neuter, and the neuter
includes the masculine and feminine; the singular tense and number includes the plural, and the
plural tense and number includes the singular; and the present tense includes the past and
future tense, and the past tense includes the present and future tense. This Agreement will be
read with all changes of gender and number required by the context. Each provision of this
Agreement will be interpreted so as to be effective and valid under Applicable Law. In the event
that any provision of this Agreement, or any portion thereof is determined by any arbitrator or
court of competent jurisdiction to be illegal, unenforceable or invalid for any reason, the Parties
will use their commercially reasonable efforts to mutually agree to such amendments as are
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necessary in order to permit the valid and legal continuation of this Agreement while
accommodating the terms and intent of this Agreement to the greatest extent permitted under
Applicable Law, so long as the economic bargain contemplated hereby is not affected in any
manner materially adverse to any Party. The remainder of this Agreement will continue in full
force and effect to the maximum extent permitted by Applicable Law.
16.11 Force Majeure. Subject to the express provisions of Section 6 (Term and
Termination) relating to termination and suspension of Service, the obligations of the Parties
under this Agreement shall be suspended or terminated to the extent that a Party or its agents
or partners are hindered or prevented from complying therewith or accessing the necessary
equipment, supplies, materials, or other items because of labor disturbances (including strikes
or lockouts), war, acts of God, public health emergencies, pandemics, governmental orders,
fires, storms, accidents, or any other cause whatsoever reasonably beyond such Party's control
(each, a "Force Majeure Event"), provided that the event is not caused, directly or indirectly, by
such Party's negligence or willful misconduct. For so long as such circumstances prevail, the
Party whose performance is delayed or hindered shall continue to use all commercially
reasonable efforts to recommence performance without delay but shall not be obligated under
this Agreement to take any actions that would be unreasonably detrimental to the Party or its
business. Notwithstanding the foregoing, in the event Crossover Health closes one or more
Health Centers due to a Force Majeure Event, the provision of Services virtually in lieu of in -
person will not be deemed a failure to substantially perform its obligations under this
Agreement. City acknowledges that Crossover Health must coordinate with partners and
subcontractors to provide, or arrange the provision of, supplies and services under this
Agreement and is not guaranteeing the performance of an unlimited number of appointments,
procedures, Tests or related services. Crossover Health will not be responsible or liable for any
Claims if such Claims result or arise out of a failure or delay that is due to any act or omission
beyond the reasonable control of Crossover Health.
16.12 Counterparts and Electronic Signatures. This Agreement may be executed in
one or more counterparts, each of which will be deemed an original and all of which together will
constitute one instrument. An electronic signature will constitute an original signature for all
purposes.
16.13 Anti -Corruption Laws. The Parties will not commit, authorize or permit any
action which would cause the Parties and/or the Parties' Affiliates to be in violation of any
applicable anti -bribery laws or regulations. Each Party agrees that it will neither offer or give, or
agree to give, to any employee, representative or third -party acting on behalf of the other Party,
nor accept, or agree to accept from any employee, representative or third -party acting on behalf
of the other Party, any unlawful payment, compensation or remuneration, be it monetary or
other thing of value, in connection with the negotiation, execution, conclusion, or the
performance of this Agreement, any Statement of Work or any purchase order. Each Party will
promptly notify the other Party if they become aware of any breach of this provision.
16.14 Legal Compliance. At all times during the Term of this Agreement, each Party
will comply with, and require that its respective personnel comply with all Applicable Laws
relevant to its performance of duties and obligations under this Agreement, including, without
limitation, those pertaining to labor and employment, equal opportunity, employee benefits, data
privacy, privacy of Protected Health Information, tax, export control, import and export of
technical data, customs, environmental, health and safety, and all licensing, permitting and
certification requirements.
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16.15 Cumulative Rights and Remedies. The rights and remedies provided in this
Agreement and all other rights and remedies available to either Party at law or in equity are, to
the extent permitted by Applicable Law, cumulative and not exclusive of any other right or
remedy now or hereafter available at law or in equity. Neither asserting a right nor employing a
remedy will preclude the concurrent assertion of any other right or employment of any other
remedy, nor will the failure to assert any right or remedy constitute a waiver of that right or
remedy.
16.16 Complete Understanding; Modification. This Agreement and the applicable
Statements of Work, together with any attached exhibits, schedules and addenda, all of which
are incorporated into this Agreement by this reference, constitutes the full and complete
understanding and agreement of the Parties relating to the subject matter hereof, supersedes all
prior understandings and agreements relating to such subject matter, and in the absence of
fraud, supersedes any prior warranties, indemnities, undertakings, conditions, understandings,
commitments or agreements between the Parties, whether oral, written or implied. Any waiver,
modification or amendment of any provision of this Agreement will be effective only if in writing
and signed by authorized representatives of the Parties. The provisions of this Agreement will
prevail over any conflicting provisions in any Statement of Work, purchase order, acceptance
notice, or other document generated by the Parties unless such document (a) expressly states
that a specific provision thereof is intended to modify such conflicting provision(s) of this
Agreement, and (b) is signed by authorized representatives of each Party, and further, provided
that any such modification will serve only to modify such term(s) with respect to the applicable
Statement of Work, and will not amend this Agreement. For clarity, the Parties agree that any
term or condition stated in a City purchase order or in any other City documentation is void
unless it meets the requirements of the preceding sentence.
16.17 Governmental Immunity. Liability for claims for injuries to persons or property
arising from the negligence of the City, its departments, boards, commissions, committees,
bureaus, offices, employees and officials shall be controlled and limited by the provisions of the
Colorado Governmental Immunity Act, §24-10-101, et seq., C.R.S.; the Federal Tort Claims Act,
28 U.S.C. Pt. VI, Ch. 171 and 28 U.S.C. 1346(b). No term or condition of this Agreement shall
be construed or interpreted as a waiver, express or implied, of any of the immunities, rights,
benefits, protections, or other provisions, contained in these statutes.
16.18 Financial Obligations of the City. All financial obligations of the City under this
Agreement and any SOW in any subsequent fiscal year of the City are subject to, and
contingent upon, funds being specifically budgeted and appropriated for such purposes. This
Agreement is expressly made subject to the limitations of the Colorado Constitution. Nothing
herein shall constitute, nor be deemed to constitute, the creation of a debt or multi -year fiscal
obligation or an obligation of future appropriations by the City of Pueblo, contrary to Article X,
§20 Colorado Constitution or any other constitutional, statutory, or charter debt limitation.
Notwithstanding any other provision of this Agreement and any SOW, with respect to any
financial obligation of the City which may arise under this Agreement in any fiscal year after
2025, in the event the budget or other means of appropriations for any such year fails to provide
funds in sufficient amounts to discharge such obligation, such failure shall not constitute a
default or breach of this Agreement or any SOW by the City, and the City may terminate this
Agreement and any SOW without liability.
16.19 Immigration Reform and Control Act of 1986. Crossover certifies that it has
complied with the United States Immigration Reform and Control Act of 1986. Crossover
represents and warrants that to the extent required by said Act, all persons employed by
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Crossover for performance of this Agreement have completed and signed Form 1-9 verifying
their identities and authorization for employment.
16.20 Equal Employment Opportunity. In connection with the performance of this
Agreement, Crossover shall not discriminate against any employee or applicant for employment
because of race, color, religion, sex, sexual orientation, gender identity, gender expression,
national origin, ancestry, disability, or age. Consultant shall endeavor to ensure that applicants
are employed, and that employees are treated during employment without regard to their race,
color, religion, sex, sexual orientation, gender identity, gender expression, national origin,
ancestry, disability, or age.
16.21 PERA Liability. Crossover shall reimburse the City for the full amount of any
employer contribution required to be paid by the City to the Public Employees' Retirement
Association ("PERA") for salary or other compensation paid to a PERA retiree performing
contracted services for the City under this Agreement. Crossover shall fill out the Colorado
PERA Questionnaire and submit the completed form to City as part of the signed Contract.
[Signature Page Follows]
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IN WITNESS WHEREOF, City and Crossover Health have executed this Agreement as
of the Effective Date.
CROSSOVER HEALTH MEDICAL GROUP,
APC
By: 01�p
Name:
Scott Shreeve, MD
Title: Chief Executive Officer
11 /13/2025
CITY OF PUEBLO, a Colorado municipal
corporation
—Signed by:
By:
Name: Heather Graham
Title: Mayor
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EXHIBIT A
Member Technology Addendum
This Member Technology Addendum states the targets for Virtual Service availability that
Crossover Health Medical Group, APC ("Crossover Health") endeavors to maintain for the
Crossover Health Member Technology (each, as defined herein).
1. Definitions. The following terms used herein shall have the following meanings:
a. "Access(ing)" means to store data in, retrieve data from, or otherwise make use of
(directly or indirectly) data or technology through electronic means.
b. "Authorized Users" means City's employees, consultants, contractors, agents and
others authorized by City's administrator to Access and use the Virtual Services,
Member Technology, and Documentation pursuant to this Agreement, in each case
subject to such person's agreement to be bound by the terms of this Agreement.
c. "Force Majeure Event" means any failure or delay caused by or the result of causes
beyond the reasonable control of a Party and which could not have been avoided or
corrected through the exercise of reasonable diligence, including, but not limited to,
power failures, malicious attacks on Crossover Health's network or the Member
Technology, acts of God, fire, flood, hurricane or other natural catastrophe, terrorist
actions, laws, orders, regulations, directions or actions of governmental authorities
having jurisdiction over the subject matter hereof, or any civil or military authority,
national emergency, insurrection, riot or war, or other similar occurrence.
d. "Specifications" means the Authorized User instructions and such other instructional
information provided by Crossover Health for use with the Member Technology and
Virtual Services.
e. "Member Technology" means the secure web- and mobile -Accessible on-line health
solutions and connected health technology, including the software platform and mobile
applications, as updated, upgraded, customized, improved, adapted, or otherwise
modified from time to time, and made available by, Crossover Health that allows
Members to Access Crossover Health's Services.
f. "Scheduled System Maintenance" in any given month will not exceed ten minutes per
month, and will be performed on the first Tuesday of each month between the hours of
3:00 a.m. and 5:00 a.m. (Pacific Time). Crossover Health may change this Scheduled
System Maintenance window upon prior written notice to City. When System
Maintenance cannot be performed during the normal schedule, Crossover Health will
use commercially reasonable efforts to schedule System Maintenance during non -peak
hours and minimize the amount of time the Virtual Service is not Accessible. Any time
during which the Virtual Service is unavailable to Authorized Users due to maintenance
or other activity by Crossover Health for which Crossover Health fails to give notice,
which exceeds the permitted time allotment, or which occurs outside of the foregoing
permitted hours will be included in the calculation of Service Downtime.
g. "Service Downtime" as used in this document means the period of time that the
Member Technology is not capable of being Accessed or used by Authorized Users,
excluding Service Downtime Exclusions. Service Downtime will be aggregated over
each month and subtracted from the number of minutes in the calendar month for which
the applicable service is supposed to be operational to determine the Service Availability
percentage.
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h. "Service Availability" means the number of minutes in a month that the key
components of the Member Technology are operational as a percentage of the total
number of minutes in such month, excluding Service Downtime Exclusions.
i. "Service Downtime Exclusions" means any unavailability, suspension or termination of
Member Technology or Virtual Service performance issues: (i) caused by factors outside
of Crossover Health's reasonable control, including any Force Majeure event; (ii)
resulting from City or Authorized User's acts or omissions; (iii) resulting from City's or
any Authorized User's equipment, computing devices, local area networks, Internet
access or Internet service provider connections, software or other technology, and/or
third -party equipment, software or other technology, including any other of City's
healthcare or benefits partners whose technology or content is integrated into the
Member Technology (other than third party equipment within Crossover Health's direct
control); (iv) resulting from failures of any public telecommunications network, the
Internet, or Internet access or related problems beyond the demarcation point of
Crossover Health's network; (v) arising from Crossover Health's suspension and
termination of City's or an Authorized User's right to use the Member Technology or
Virtual Service in accordance with the Agreement or any reasonable policy of Crossover
Health; (v) that are otherwise provided in any agreement between City and Crossover
Health, including the Agreement and any Work Order; (vi) resulting from Scheduled
System Maintenance.
j. "System Maintenance" means time (in minutes) that the Virtual Service is not
Accessible to Authorized Users due to maintenance of the Member Technology,
including for maintenance and upgrading of the software and hardware used by
Crossover Health to provide the Virtual Services. System Maintenance includes
Scheduled System Maintenance and unscheduled, emergency maintenance. Crossover
Health will provide City with at least ten business days' prior written notice of any
scheduled maintenance or sixty minutes' advance written notice for unscheduled,
emergency maintenance. Crossover Health will provide a schedule of regular monthly
maintenance windows. When maintenance cannot be performed during the normal
schedule, Crossover Health will provide such notices to City by email to an address
provided by City.
k. "Virtual Services" means Access to and utilization of the Member Technology that
Crossover Health is providing to City and its Eligibles as described in the Agreement
and/or any Work Order attached to the Agreement.
2. Maintenance and Support. Crossover Health will maintain and support the Virtual Service
to provide reliable Access by City's Authorized Users as set forth in this Addendum.
3. Updates. Crossover Health will continuously update City's instance of the Virtual Service
and Member Technology with any and all patches, enhancements, updates, upgrades and
new versions that Crossover Health makes generally commercially available ("Updates").
Any such Updates will be deemed part of the Member Technology or Virtual Service and will
be covered by the maintenance and support services set forth in this Addendum. Crossover
Health represents that no Update will adversely affect form, fit, function, reliability, safety or
serviceability of the Virtual Service or Member Technology or their compliance with all of the
requirements of this Addendum.
4. Service Level Standards. Crossover Health will at all times during the term of the
Agreement maintain the following service levels for the Virtual Services (collectively, the
"Service Levels"):
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a) The Member Technology will achieve Service Availability of at least 99.5% during each
calendar month of the Term of the Agreement.
b) Crossover Health may take the Member Technology offline for System Maintenance
during pre -scheduled maintenance windows for which City has been provided
reasonable notice.
5. Reporting. During the term of the Agreement, Crossover Health will provide monthly reports
to City that include Crossover Health's performance with respect to the Service Levels and
such other metrics as reasonably requested by City from time -to -time, no more frequently
than once per month.
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EXHIBIT B
Reports
Experience
• Patient Satisfaction
• Net Promoter Score (NPS)
• Crossover as Primary Medical Home
• Wait Times
Engagement
• Registrations
• New Activated Members
• Total Activated Members
• Visits
• Unique users
• Top diagnostic categories
• No shows and Late Cancellations (Health Center only; not applicable to Virtual Services)
Standard data breakdowns include: eligible relationship, service line, care channel, site type.
Anything beyond this may require additional lead time.
Business Reviews: On mutually agreed upon intervals, or as reasonably requested by NOA,
Crossover Health will provide an assessment, including operational and clinical performance.
When applicable, or as requested by NOA, Crossover Health will present opportunities, which
will be accompanied by written reports in the form of slide decks.
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EXHIBIT C
Business Associate Terms
These Business Associate Terms ("BA Terms" or this "Business Associate Agreement")
apply when Crossover Health, City or a Plan (referred to herein as the "Recipient") receives,
maintains, transmits, uses or discloses PHI on behalf of one of the others (such other Party, the
"Discloser") in the performance of a function in the capacity of a Business Associate (as that
term is defined in 45 C.F.R. 160.103) of the Discloser in connection with the Parties' underlying
Professional Services Agreement dated as of November 10, 2025 (the "PSA"). Capitalized
terms used but not defined herein have the meanings ascribed to them in the PSA.
RECITALS
WHEREAS, the Discloser may disclose to the Recipient certain Protected Health
Information ("PHI") as necessary for the performance of the Services under the PSA; and
WHEREAS, the Discloser and the Recipient acknowledge that each has obligations in
their respective roles under Health Insurance Portability and Accountability Act of 1996 (Public
Law 104-191), as amended by the security provisions of the American Recovery and
Reinvestment Act of 2009 (also known as the Health Information Technology for Economic and
Clinical Health Act, or the "HITECH Act," as each may be further amended from time to time)
("HIPAA"), and their implementing regulations, 45 C.F.R. Parts 160, 162, and 164 (collectively,
"HIPAA Rules"); and
WHEREAS, as required under those HIPAA Rules, covered entities and their Business
Associates must enter into a written contract, which describes the collection, use, sharing,
storing, retention and disposal of PHI received from the Discloser by the Recipient; and
WHEREAS, the purpose of these BA Terms is to confirm the compliance of the
Discloser and the Recipient with respect to the requirements of those HIPAA Rules, including
the regulations and guidance documents issued thereunder, with respect to entrusting the
Recipient with Protected Health Information.
NOW THEREFORE, in consideration of the mutual promises and covenants, herein, and
for other good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Parties agree as follows:
DEFINITIONS
For purposes of this Business Associate Agreement, and consistent with the definitions
provided in the HIPAA Rules, as amended, the following terms shall have the designated
meanings:
"Business Associate" shall have the meaning assigned to it under the HIPAA Privacy
Rule, as amended by the Modifications to the HIPAA Privacy, Security, Enforcement and
Breach Notification Rules and the Health Information Technology for Economic and
Clinical Health Act), Vol. 78, No. 17, Fed. Register, January 25, 2013, modifying 45
C.F.R. Parts 160, 162 and 164 (the "HIPAA Omnibus Rule" amendments).
"Designated Record Set" means a group of records maintained by or for a covered
entity that are comprised of (i) the medical and billing records about individuals
maintained by or for a covered entity; (ii) the enrollment, payment, claims adjudication,
and case or medical management record systems maintained by or for a health plan; or
(iii) records that are used, in whole or in part, by or for a covered entity to make
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decisions about individuals. As used herein, the term "Record" means any item,
collection, or grouping of information that includes PHI and is maintained, collected,
used, or disseminated by or for a covered entity.
• "Electronic Media" means the mode of electronic transmissions. It includes the Internet,
extranet (using Internet technology to link a business with information only accessible to
collaborating parties), leased lines, dial -up lines, private networks, and those
transmissions that are physically moved from one location to another using magnetic
tape, disk, or compact disk media.
• "Individual" means a person who is the subject of the Protected Health Information.
• "Individually Identifiable Health Information" means information that is a subset of
health information, including demographic information collected from an individual, and
(a) is created or received by a health care covered entity, health plan, employer, or
health care clearinghouse; and (b) relates to the past, present, or future physical or
mental health or condition of an individual; the provision of health care to an individual;
or the past, present or future payment for the provision of health care to an individual;
and (i) identifies the individual, or (ii) with respect to which there is a reasonable basis to
believe the information can be used to identify the individual.
• "Minimum Necessary" shall have the meaning provided under the HIPAA Privacy Rule,
45 C.F.R. Part 164.502(b) and 164.514(d), as modified by the HITECH Act, the HIPAA
Omnibus Rule, and the regulations and guidance documents issued thereunder.
• "Personal Information" is broader in scope than Protected Health Information (see
definition below). It includes any information that can directly or indirectly identify an
individual. Protected Health Information only relates to medical information about an
identifiable individual and does not include other types of personal information (such as
their financial information, education and work history, nationality, religion, etc.).
• "Privacy Standards" means the Standard for Privacy of Individually Identifiable Health
Information, 45 C.F.R. Parts 160 and 164 ("HIPAA Privacy Rule"), as amended by the
HITECH Act, HIPAA Omnibus Rule, and the regulations and guidance documents
issued thereunder.
"Protected Health Information" or "PHI" is information that can identify a particular
individual. It includes information about an individual's past, present or future physical or
mental health, the provision of healthcare, or the past, present or future payment of a
provision of healthcare. In order to be considered PHI, the information must contain one
or more of the following eighteen identifiers: geographic subdivisions smaller than a
state (including zip code); all elements of dates (except year) for dates relating to an
individual (e.g., birth date); telephone and fax numbers; email addresses, Social Security
numbers; account numbers; certificate/license numbers; vehicle identifiers; device
identifiers and serial numbers; URL and IP addresses; biometric identifiers; full face
photos; and any other unique identifying number, code or characteristic. PHI can be (i)
transmitted by electronic media; (ii) maintained in any medium constituting electronic
media; or (iii) transmitted or maintained in any other form or medium. "PHI" shall not
include education records covered by the Family Educational Right and Privacy Act, as
amended, 20 U.S.C. §1232g, or records described in 20 U.S.C. §1232g (a)(4)(b)(IV).For
clarity, "Protected Health Information" and "PHI" as used herein have the same
meaning as the term "protected health information" in 45 C.F.R. § 160.103; nothing in
this section is intended to alter such meaning.
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• "Required By Law" means a mandate contained in a law that compels a use or
disclosure of PHI and that is enforceable in a Court of law.
• "Secretary" means the Secretary of the Department of Health and Human Services.
• "Security Breach" means (a) the loss or misuse (by any means) of PHI, such as by an
intruder, insider or other unauthorized person; (b) the inadvertent, unauthorized and/or
unlawful processing, access, disclosure, alteration, corruption, transfer, sale or rental,
destruction or use of PHI: (c) any other act or omission that compromises the security,
confidentiality, and/or integrity of PHI. For clarity, "Security Breach" as used herein has
the same meaning as the term "breach" in 45 C.F.R. § 164.402; nothing in this section is
intended to alter such meaning.
• "Security Standards" means the regulations with regard to security standards for health
information promulgated by the Secretary pursuant to the authority granted by Title II,
Subtitle F, Section 263 of HIPAA and contained in 45 C.F.R. Parts 160, 162 and 164, as
further clarified and expanded under the HITECH Act and the HIPAA Omnibus Rule,
including the regulations and guidance documents issued thereunder.
• "Subcontractor" shall have the meaning assigned to it under the HIPAA Omnibus Rule.
To the extent that organizations fall within the definition of a "subcontractor" of the
Recipient under the HIPAA Omnibus Rule, those organizations are also "Business
Associates" under this Agreement.
• "Transaction Standards" shall mean the Standards for Electronic Transactions, 45
C.F.R. 160 and 162, including the regulations and guidance documents issued
thereunder.
BUSINESS ASSOCIATE OBLIGATIONS
1. Protection of PHI. The Recipient understands and agrees that it may only collect,
process, store, share and dispose of PHI obtained from or on behalf of the Discloser in a
manner consistent with the requirements and limitations contained in this Agreement, and in
accordance with the requirements and limitations contained in the HIPAA Privacy and Security
Rules, HITECH Act, HIPAA Omnibus Rule, and the regulations and guidance documents issued
thereunder. All PHI received from the Discloser shall only be used by the Recipient to provide
the Services, fulfill its obligations under the PSA and this Agreement, for the proper
management and administration of Recipient or to carry out the legal responsibilities of
Recipient, or as otherwise may be required by law.
2. Compliance with Laws. The Recipient agrees to comply with applicable federal and
state laws, including but not limited to the HIPAA Privacy Rule, HIPAA Security Rule, HITECH
Act, HIPAA Omnibus Rule, applicable regulations and guidance documents issued under those
Rules, all other applicable state privacy and security requirements, and medical records laws.
3. Training and Awareness. Business Associate recognizes its obligation to ensure that
all members of its workforce, as well as all third parties given access to the data by Business
Associate, receive appropriate training regarding the applicable privacy and security laws, and
that they comply with their responsibilities with respect to the PHI entrusted to them under this
Agreement. Business Associate understands and agrees that the training will be repeated at
periodic intervals to capture changes in the law or interpretations, and to address new security
threats and standards.
4. Security. The Recipient confirms that it will at all times use appropriate administrative,
physical and technical safeguards to prevent use or disclosure of electronic PHI other than as
provided for by this Agreement, and reasonably and appropriately protect the confidentiality,
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integrity and availability of the electronic PHI received from the Discloser, in accordance with the
requirements under applicable federal and state laws including the HIPAA Privacy and Security
Rules, the HITECH Act, the HIPAA Omnibus Rule, and the regulations and guidance
documents issued thereunder.
5. Continuity of Business. Consistent with applicable laws including the HIPAA Security
Rule, as amended by the HITECH Act, the HIPAA Omnibus Rule and the regulations and
guidance documents issued thereunder, the Recipient will ensure that it has appropriate and
properly tested business continuity plans in place such that in the event that the Recipient's data
center, servers or other storage locations suffer an unexpected catastrophe, the Discloser will
be able to continue its business as intended and shall remain in compliance with its legal and
business recordkeeping obligations. The Recipient will regularly test its business continuity
processes to ensure that they are in good working order.
6. Security Assessments. The Recipient will periodically, and at least once annually,
conduct vulnerability assessments of its security to identify and address threats to the PHI
collected in connection with its Agreement. These assessments will be performed by security
professionals not affiliated with the Recipient, who possess recognized expertise and
appropriate credentials in conducting those assessments with respect to healthcare information.
The Recipient will promptly mitigate any identified risks or security vulnerabilities that create a
discrepancy between the Recipient's level of protection of the PHI and that required by the
HIPAA Privacy and/or Security Rules, as amended. The vulnerability testing results as well as
any mitigation efforts that are recommended or implemented shall be obtained in writing by the
Recipient and maintained by the Recipient and for at least as long as the Recipient maintains
any PHI from the Discloser. Those reports shall be made available to privacy regulators and to
the Discloser in the event of a regulatory inquiry, inspection, security breach or other similar
situation in which the Recipient's security standards for the PHI are at issue or being evaluated
by regulators or in the context of other legal action to the extent required by applicable law.
7. Reporting Unauthorized Disclosures and Security Breaches. The Recipient agrees
to notify the Discloser within two (2) business days of the time that Recipient first becomes
aware of any instances in which any of the PHI provided to the Recipient for purposes of its
function as a Business Associate is used, compromised, inappropriately disclosed for a purpose
that is not otherwise provided for in this Business Associate Agreement or otherwise permitted
by law, or may trigger breach notification obligations under state law and/or under the HITECH
Act as amended by the HIPAA Omnibus Rule. In addition, should the breach trigger any
reporting obligations to affected individuals or others, the Recipient agrees to cooperate with the
Discloser in complying with its obligations under applicable laws, including, for example,
providing copies of information relating to the breach and in support of the Discloser's
responses to state and/or federal regulatory agencies. Any notices required to be given to
individuals whose PHI is entrusted to the Recipient on behalf of the Discloser and whose
information is compromised, inappropriately accessed, or otherwise require notice of breach
under state or federal law or other application regulations, shall be provided by the Discloser,
with reasonable, documented expenses reimbursed by Recipient, in a manner that comports
with the applicable regulatory requirements. In addition, the Recipient agrees to reimburse other
reasonable, documented costs for any other reasonable mitigation efforts related to the breach
or potential breach, such as staffing a toll -free 800 number and offering twelve months of free
credit monitoring encompassing all three national credit bureaus, for each affected individual.
8. Security Breach Risk Assessment and Remediation. Should a Security Breach
occur, the Recipient will promptly evaluate the cause of the Breach using qualified professionals
in privacy and/or security, and will promptly undertake any identified remediation measures to
minimize the risk of any subsequent exposures.
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9. Right to Audit. The Recipient agrees to allow the Discloser to audit its privacy and
security policies, procedures and practices to ensure that appropriate protections are in place
for the Discloser's PHI and to ensure compliance with the HIPAA Privacy and Security Rules, as
amended. The Discloser agrees to provide the Recipient with two weeks' notice in advance of
any such inspection and will otherwise take reasonable steps to accommodate the Recipient's
workload so as to minimize any interruptions to the Recipient's normal business activities.
10. Binding Requirements for Third Parties of the Recipient. The Recipient shall also
ensure that its directors, officers, employees, temporary employees, contractors, agents, and
anyone else with whom it may lawfully share PHI received from the Discloser, are bound to
adhere to privacy, security and confidentiality standards that are as rigorous as those contained
in this Business Associate Agreement, the parties' underlying Agreement, and the HIPAA
Privacy and Security Rules, and the HITECH Act. In particular, the Recipient will ensure that
written agreements containing substantially similar provisions are in place with all third parties
with whom it intends to share any of the PHI received under its agreement with the Discloser.
11. No Access to PHI Outside of the United States. The Recipient may not share or
transfer any PHI under this Agreement with any individual or organization located outside of the
United States, nor allow any of its subcontractors to do so, unless the Recipient first obtains
written permission from the Discloser to do so.
12. Requests from Secretary. Promptly, but in any case, no later than five (5) business
days after notice thereof, Recipient shall advise Discloser of any inquiry by the Secretary
concerning any actual or alleged violation of HIPAA related to PHI received by Recipient from
Discloser. Recipient agrees to permit Discloser to respond to any such notice or inquiry.
Recipient shall cooperate fully with Discloser in responding to any such inquiry.
13. Reproductive Health Care Use and Disclosure.
a. Recipient agrees to prohibit the use and disclosure of Protected Health
Information for any reason specified in 45 C.F.R. §164.502(a)(5)(iii), which generally relates to
criminal, civil, or administrative investigations or impositions of liability (including the
identification of any person for such purposes) relating to any person for the mere act of
seeking, obtaining, providing, or facilitating Reproductive Health Care (as that term is defined in
45 C.F.R. § 106.103).
b. Recipient additionally agrees to promptly notify Discloser of any request for PHI
related to Reproductive Health Care.
c. Recipient agrees to require a valid attestation (in compliance with the
requirements outlined in 45 C.F.R. §164.509(b)(1)), a copy of which shall be made available to
Discloser upon request, before using or disclosing Protected Health Information potentially
related to Reproductive Health Care for any of the following purposes: health oversight
activities, judicial and administrative proceedings, law enforcement purposes, or disclosures to
coroners and medical examiners.
d. Recipient will cease use and disclosure and notify Discloser as soon as possible
(but in no event in more than 3 days) after it acquires actual knowledge that material information
in the attestation is false, or discovers information reasonably showing that any representation
made in the attestation was materially false, leading to a use or disclosure prohibited by 45
C.F.R. § 164.502(a)(5)(iii).
14. Notice of Privacy Practices. The Recipient agrees that it will abide by the limitations of
any applicable Notice of Privacy Practices ("NPP") provided to the Recipient. Any amended
NPP issued during the term of this Agreement (and consistent with any changes in law), shall
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apply prospectively only, and shall not affect permitted uses and disclosures on which the
Recipient relied prior to such Notice.
15. Withdrawal of Authorization. If the use or disclosure of PHI in this Business Associate
Agreement is premised upon an Individual's specific authorization for the use of his or her PHI,
and the Individual revokes such authorization in writing, or the effective date of such
authorization has expired, or authorization is found to be defective in any manner that renders it
invalid, the Recipient agrees that upon receipt of notification that the Authorization is no longer
valid (and unless a legal exception applies that would allow continued use of the PHI for new
purposes), the Recipient will stop using or disclosing any such Individual's PHI. The revocation
of an Individual's authorization applies to prospective uses only, and not to uses that have
already occurred.
16. Mitigation. The Recipient agrees to mitigate, to the extent practicable, any harmful
effect that is known to the Recipient of a use or disclosure of PHI by the Recipient in violation of
the requirements of this Business Associate Agreement. The Parties agree that in the event that
their Services contract is terminated, or any Recipient employee or agent is suspected of
inappropriate use of or access to PHI, then each agrees to take the necessary steps to promptly
limit the suspect's access to the Discloser's PHI.
17. Accounting of Disclosures. The Recipient agrees to document such disclosures of PHI
and information related to such disclosures as would be required for the Discloser to respond to
a request by an Individual for an accounting of disclosures of PHI in accordance with 45 C.F.R.
§164.528, as now required of Business Associates under the HITECH Act, and as may be
expanded by the U.S. Department of Health and Human Services (HHS) in additional
regulations and guidance documents. The Recipient agrees to provide to the Discloser within
fifteen (15) days, information sufficient to permit the Discloser to respond to a request by an
Individual for an accounting of disclosures of PHI in accordance with HIPAA and the HIPAA
Rules. This includes the right of the individual to request an accounting directly from the
Recipient, or to seek the contact information of the Recipient from the Discloser for purposes of
requesting a direct Accounting. Regardless of whether the Accounting is provided by the
Discloser or the Recipient, it shall encompass disclosures during the last three (3) years.
18. Individual Right to Copy or Inspection. The Recipient agrees that upon the direction
of the Discloser, it will permit a (properly authenticated) Individual to inspect or copy PHI under
the conditions and limitations required under 45 C.F.R. § 164.524 as it may be amended from
time to time. In addition, if Business Associate maintains any electronically stored medical
records of Individuals as part of a maintained Designated Record Set, Business Associate will
make a digital copy of those medical records available to the Individual. The expenses charged
to the Individual for doing so are limited to the time it takes the Recipient to prepare the copy.
19. Amendment of PHI. The Recipient agrees that it will amend PHI maintained in a
Designated Record Set by the Recipient as requested by the Discloser under conditions and
limitations required under 45 C.F.R. § 164.526 as it may be amended from time to time.
20. Internal Practices, Books, and Records. The Recipient shall make available its
internal practices, books, and records relating to the use and disclosure of PHI received from,
created, or received by the Recipient on behalf of the Discloser to the Secretary or his or her
agents for the purpose of determining the Discloser's and/or the Recipient's compliance with the
HIPAA Privacy and Security Rules, and the HITECH Act.
21. Inconsistencies. To the extent the terms of the Agreement and the terms of this
Business Associate Agreement are not consistent, the terms of the document that provides the
most protection for the Discloser and for the Discloser's data shall govern.
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22. Term and Termination. This Business Associate Agreement shall automatically
terminate upon termination of the Services contract, if applicable, or whenever the Recipient
ceases to provide Services to and on behalf of the Discloser. Notwithstanding the foregoing, any
provisions of this Business Associate Agreement, which by their terms survive termination, shall
continue in accordance with such terms.
23. Return or Transfer of PHI. Upon termination of this Business Associate Agreement, the
Recipient agrees to return or destroy all PHI received from the Discloser that the Recipient
maintains in any form and shall comply with federal and state laws as they may be amended
from time to time governing the maintenance or retention of PHI. If the Recipient determines
that the return or destruction of PHI is not feasible, the Recipient shall so inform the Discloser, in
which case the Recipient agrees to extend the protections of this Business Associate
Agreement to the PHI remaining in its possession and limit further uses and disclosures of the
PHI to those purposes that make the return or destruction of the PHI infeasible, for so long as
the Recipient retains the PHI.
24. Survival. The respective rights and obligations of the Recipient with regard to permitted
uses and security safeguards of PHI shall survive the termination of this Business Associate
Agreement.
25. Termination for Breach. If the Recipient materially breaches any provision in this
Business Associate Agreement, the Discloser may, at its option and as soon as possible,
access and audit the records of the Recipient related to its use and disclosure of PHI, and
require the Recipient to submit to monitoring and reporting, and such other reasonable
conditions as the Discloser may determine is necessary to ensure compliance with this
Business Associate Agreement, or the Discloser may terminate this Business Associate
Agreement.
26. Notices. Any notices pertaining to this Business Associate Agreement shall be given in
writing and shall be deemed duly given when personally delivered to a Party or a Party's
authorized representative in accordance with the PSA.
27. Amendments. This Business Associate Agreement may not be changed or modified in
any manner except in writing, and signed by a duly authorized officer of each of the Parties to
this Agreement. The Parties, however, agree to amend this Business Associate Agreement as
may be warranted in order to assure the Discloser's and the Recipient's compliance with the
requirements of the HIPAA Privacy Rule, HIPAA Security Rule, the HITECH Act, and applicable
guidance documents and regulations issued under those Rules.
28. Choice of Law. This Business Associate Agreement and the rights and the obligations
of the Parties hereunder shall be governed by and construed under the laws of the State of
Colorado, without regard to applicable conflict of laws principles.
29. Assignment of Rights and Delegation of Duties. This Business Associate Agreement
is binding upon and inures to the benefit of the Parties hereto and their respective successors
and permitted assigns. However, neither Party may assign any of its rights or delegate any of its
obligations under this Business Associate Agreement without the prior written consent of the
other Party, which consent shall not be unreasonably withheld or delayed.
30. Nature of Business Associate Agreement. Nothing in this Business Associate
Agreement shall be construed to create (i) a partnership, joint venture or other joint business
relationship between the Parties or any of their affiliates, (ii) any fiduciary duty owed by one
Party to another Party or any of its affiliates, or (iii) a relationship of employer and employee
between the Parties.
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31. No Waiver. Failure or delay on the part of either Party to exercise any right, power,
privilege or remedy hereunder shall not constitute a waiver thereof. No provision of this
Business Associate Agreement may be waived by either Party except by a writing signed by an
authorized representative of both Parties.
32. Severability. The provisions of this Business Associate Agreement shall be severable,
and if any provision of this Business Associate Agreement shall be held or declared to be illegal,
invalid or unenforceable, the remainder of this Business Associate Agreement shall continue in
full force and effect as though such illegal, invalid or unenforceable provision had not been
contained herein.
33. No Third Party Beneficiaries. Nothing in this Business Associate Agreement is
intended to confer on any person or Individual other than the Parties to this Business Associate
Agreement or their respective successors and assigns any rights, remedies, obligations or
liabilities under or by reason of this Business Associate Agreement. Nothing in this Business
Associate Agreement shall be considered or construed as conferring any right or benefit on a
person not party to this Business Associate Agreement nor imposing any obligations on either
Party hereto to persons not a party to this Business Associate Agreement.
34. Headings. The descriptive headings of the articles, sections, subsections, exhibits and
schedules of this Business Associate Agreement are inserted for convenience only, do not
constitute a part of this Business Associate Agreement and shall not affect in any way the
meaning or interpretation of this Business Associate Agreement.
35. Entire Business Associate Agreement. This Business Associate Agreement, together
with attached exhibits, riders and amendments, if applicable, which are fully completed and
signed by authorized agents on behalf of both Parties from time to time while this Business
Associate Agreement is in effect, constitutes the entire Business Associate Agreement between
the Parties hereto with respect to the subject matter hereof and supersedes all previous written
or oral understandings, Business Associate Agreements, negotiations, commitments, and any
other writing and communication by or between the Parties with respect to the subject matter
hereof. In the event of any inconsistencies between any provisions of this Business Associate
Agreement in any provisions of any exhibits or riders, the provisions of this Business Associate
Agreement shall control.
36. Regulatory References. A citation in this Business Associate Agreement to the Code of
Federal Regulations shall mean the cited section as that section may be amended from time to
time.
37. Construction. This Business Associate Agreement shall be construed as broadly as
necessary to implement and comply with HIPAA, as amended. Any ambiguity in this Business
Associate Agreement shall be resolved in favor of a meaning that complies with HIPAA, as
amended.
38. Indemnification. The Parties agree to indemnify, defend and hold harmless each other
and each other's respective employees, directors, officers, subcontractors, agents or other
members of its workforce, each of the foregoing hereinafter referred to as "indemnified party,"
against all actual and direct losses suffered by the indemnified party and all present, non -
contingent liability to third parties arising from or in connection with any breach of this Business
Associate Agreement or of any warranty hereunder or from any negligence or wrongful acts or
omissions, including failure to perform its obligations under the Privacy Regulation, by the
indemnifying party or its employees, directors, officers, subcontractors, agents or other
members of its workforce. Accordingly, on demand, the indemnifying party shall reimburse any
indemnified party for any and all actual and direct losses, liabilities, lost profits, fines, penalties,
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costs or expenses (including reasonable attorneys' fees) which may be imposed upon any
indemnified party by reason of any Claim by any third party which results from the indemnifying
party's breach hereunder. The Parties' obligation to indemnify any indemnified party shall
survive the expiration or termination of this Business Associate Agreement for any reason.
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