AGENDA ITEM SUBMITTAL FORM
BOARD OF SUPERVISORS
For Clerk's Use Only:
AGENDA NUMBER
CLERK OF THE BOARD
44 N. San Joaquin Street, Suite #627
Stockton, California 95202
SUBMIT ONE COPY OF TmS FORM WITH EACH BOARD AGENDA ITEM.
At the time of submitting your agenda item documents, please provide O~ ORIGINAL & 7 COPIES
OF THE BOARD LETTER AND ANY ACCOMPANYING DOCUMENTS (Resolutions, Board
Orders, Contracts, etc.) for distribution after Board Approval.
H more than one origiBal is required, you must provide the appropriate number or originals to be
.
executed by the Board of Supervisors.
DATE:
June 9, 2014
DEPARTMENT:
San Joaquin Gener,1 Hospital
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CONTACT & PHONE #:
AGENDA ITEM TITLE:
Approval to Purchase the Nuance PowerScribe Voice
Recognition System for San Joaquin General Hospital
For a Total of $239,946
PROPOSED AGENDA PLACEMENT DATE:
PROPOSED CALENDAR:
June 24, 2013
DISTRIBUTION:
Sheila -: 46*-~621
Consent-Health & Human Services
(MAILING ADDRESSES MUST BE PROVIDED IF NOT A COUNTY DEPARTMENT)
DOCUMENT
#OFCOPIES
Auditor-Controller
Board Order
1
Information Systems Division
Board Order
1
Purchasing and Support Services
Board Order
1
San Joaquin General Hospital
Board Order
1
Clerk of the Board
Board Order
Original
Special instructions to the Clerk of the Board:
AGENDA ITEMS MUST BE REVIEWED AND SIGNED OFF BY THE DEPARTMENT:HEAD, COUNTY
ADMINISTRATOR AND COUNTY COUNSEL.
.
Department Head
•
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County Administrator
6/10/2014 9:16:21 AM
County Counsel
0IU5
ROSE
6/10/2014 9:02:29 AM
COB
6/10/2014
9:31:50 AM
San Joaquin General Hospital/P. O. Box 1020 • Stockton • CA 95201 • (209) 468-6000
June 9,2014
Board of Supervisors
County Administration Building
Stockton, California
Dear Board Members:
APPROVAL TO PURCHASE THE NUANCE POWERSCRIBE ,<OICE
RECOGNITION SYSTEM FOR SAN JOAQUIN GENERAL HOSIPITAL
FOR A TOTAL OF $239,946
RECOMMENDATION:
It is recommended that the Board of Supervisors approve and authorize the
Purchasing Agent to execute the terms of the sale agreement for the purchase of the
Nuance PowerScribe Voice Recognition (PSVR) system for San Joaquin General Hospital
(SJGH) for a total of $239,946.
REASON FOR RECOMMENDATION:
SJGH recommends the purchase of the PSVR system to dramatically decrease the
turnaround time to deliver a final typed interpretation of diagnostic imaging exams to
ordering physicians and to reduce the cost to prepare these reports.
SJGH currently contracts with Central Valley Imaging Medical AS$ociates (CVIMA)
to perform all radiology professional services at SJGH. CVIMA radiologists interpret images
and dictate their findings, which are then forwarded to a transcriptioni&t who types the
report. The transcription is reviewed by the radiologist to verify its acculracy and is then
signed electronically and becomes available to the ordering physician. Duiring the day shift
this process can take up to several hours. During off-hours, the images are transmitted to
an offsite non-CVIMA radiologist who phones the preliminary report directly to the ordering
physiCian. The following day, the onsite CVIMA radiologist reviews the e~am and dictates
the final report. The off-hour process requires the CVIMA phYSician to perfprm double work,
which results in slower turn-around of the final report.
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The Nuance PSVR system allows the radiologists to dictate into an automated
transcription system where their findings are automatically typed by the oice recognition
software. After completing a quick review of and attaching an electroni signature to the
final report, it will be released to the ordering physician, eliminating the m nual transcription
processes entirely. The voice recognition system will also allow CVIM radiologists to
complete final reports after-hours as timely as the day shift.
Board of Supervisors
June 9,2014
Page Two
The PSVR uses voice recognition software that allows the radiolo ists to view their
dictated reports and make corrections at the time of dictation. CVIMA physi ians are familiar
with and support the purchase of the Nuance system because they suc ssfully use it at
several of their other hospitals. The purchase will reassign the current tra scriptionists who
complete reports for the Diagnostic Imaging Department to perform tra scription for the
other SJGH physicians needing transcribed reports. The reassignment of the current
transcriptionists to non-Diagnostic Imaging physicians will reduce paym~ts made to the
outside contracted transcription vendor by between $80,000 and $100,000 (nUall Y,
FISCAL IMPACT:
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The purchase of the Nuance PowerScribe system licenses, servers~ and sales tax is
$239,946. An additional $18,000 will be spent on interfacing the Nuance system with the
existing CareStream Picture Archival Computer System/Radiology Information System that
is not part of this action. Funds for this equipment are included in the ptoposed 2014-15
Hospital Enterprise Fund budget. There is no additional cost to the County General Fund.
The San Joaquin County Information Services Director has reviewed tltlis proposal and
concurs with the recommendation.
ACTION TO BE TAKEN FOLLOWING APPROVAL:
Upon approval by the Board of Supervisors, the Chairman will· authorize the
Purchasing Agent to execute the terms of sale agreement for the purcha$e of the Nuance
PowerScribe Voice Recognition system.
Sincerely,
David K. Culberson
Chief Executive Officer
San Joaquin General Hospital
DKC:DJ:RA:sl
Board Letter - Nuance PowerScribe VR
cc:
Auditor-Controller
Information Systems Division
Purchasing and Support Services
Clerk of the Board
Before the Board of Supervisors
County of San Joaquin, State of California
B- - - MOTION:
APPROVAL TO PURCHASE THE NUANCE POWERSCRIBE :VOICE
RECOGNITION SYSTEM FOR SAN JOAQUIN GENERAL HO§PITAL
FOR A TOTAL OF $239,946
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THIS BOARD OF SUPERVISORS DOES HEREBY approve a~d authorize the
Purchasing Agent to execute the terms of the sale agreement for the :purchase of the
Nuance PowerScribe Voice Recognition (PSVR) system for San Joaquin General
Hospital (SJGH) for a total of $239,946.
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I HEREBY CERTIFY that the above order was passed and adopted on _ _ _ _ _ _
vote of the Board of Supervisors, to wit:
___+__
by the following
AYES:
NOES:
ABSENT:
ABSTAIN:
MIMI D~ZENSKI
Clerk of the Bo rd of Supervisors
County of San Joaquin
State of Cali fomi a
Terms of Sale
This Terms of Sale Agreement ("Agreement"), effective on the date when ~igned by the last party
("Effective Date") by and between Nuance Communications, Inc., a Delaware corP9ration with its principal
office at 1 Wayside Road, Burlington, MA 01803 (,'Nuance") and San Joaquin General Hospital with offices
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at 500 W. Hospital Rd., French Camp, CA. 95231 ("Customer").
Customer desires to license Programs (as defined below) and/or purchase relate~ equipment and services
from Nuance Communications, Inc ("Nuance"), as identified on the purchase order s bmitted by Customer to
Nuance. If Nuance accepts such purchase order by written or electronic acknowledgem nt, the parties will have
entered into a binding contract on the terms and conditions set forth in these Terms of Sale, which shall govern
the parties' rights and obligations with respect to the applicable transaction. Neither arty shall be bound by
any pre-printed provisions of any purchase order, acknowledgment, or other simila form. If Nuance fails to
accept or reject the purchase order within five (5) business days of receiving the same, the purchase order will
be deemed rejected.
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I. Definitions. As used in this Agreement, the following
defined terms have the meanings indicated below.
'"Affiliate(s)" are those business entities that are controlled by,
controlling, or under common control with Customer.
"Control" as used herein means control through ownership of
more than a majority of shares of stock eligible to vote for
members of the Board of Directors, or control by contract.
"Authorized User(s)" are those employees and contractors of
Customer, as further specified in the applicable Order, who are
permitted to access the Programs subject to the terms and
restrictions contained in this Agreement and the applicable
Order.
"Contracting Period' means the period commencing on the
Effective Date and ending (i) upon the expiration or
termination of this Agreement or (ii) on the third (3rd)
anniversary of the Effective Date, whichever occurs first.
"Documentation" means the administrative guide and user's
guide provided to Customer in the performance of an Order.
"Equipment" means hardware manufactured by Nuance and
supplied to Customer pursuant to an Order. Except as
expressly provided by this Agreement or the applicable Order,
"Equipment" does not include Third Party Equipment.
"First Prodllctive Use" means the date Nuance has completed
the Professional Services set forth in an Order related to the
installation of the Product(s) and, therefore, capable of
processing data in Customer's commercial environment.
"Implementation Services Order" or "ISO" means the
ordering document setting forth the Professional Services and
Training Services related to the implementation of Products,
Third Party Equipment, and/or Third Party Software.
"Jlaintenance Services" are thdse services Nuance
with respect to the maintenance and support of the
pursuant to this Agreement and the "Hardware and
Maintenance Options Terms ard Conditions" set
provides
Products
Software
forth at
http://support.nuance.com/health~are.
"Order" means a supplement ~ubstantially in the form set
forth in Exhibit A to this Agreen)ent that is entered into by the
parties from time to time during the Contracting Period, which
lists the specific Products, Third IParty Equipment, Third Party
Software, and Maintenance Services purchased by Customer,
and may also include an ISO.
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"Products" means the Progral~s (or licenses thereto) and
Equipment, individually or colleftively.
"Professional Services" shall mi' an those services, other than
Maintenance Services and Trai ing Services, set forth in an
Order and provided by Nuance pursuant to Section 7 of this
Agreement.
"Programs" means (i) the object code version of any Nuance
proprietary software product specified in an Order, (ii) all
Updates and Upgrades thereto, (iii) any customized features
and functions provided by Nuan~e pursuant to this Agreement,
and (iv) all related Documentatidm. Except expressly stated to
the contrary, "Program" doe~ not include Third Party
Software.
"Services" means profeSSional]' Services, Training Services
and/or Maintenance Services, as applicable.
"Third Party Equipment" mans hardware that is not
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manufactured by Nuance.
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"Third Party S()fiware" means ~oftware proprietary to a third
party.
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Toem, of S,"
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obligations under this Agreel ent or any Order between
Customer and Nuance. In the event Nuance enters into an
Order with a Designated Affili te, the term ''Customer'' as
used in this Agreement and t e applicable Order shall be
deemed, for purposes of the con ract formed by the applicable
Order and this Agreement, t refer to such Designated
Affiliate. Exhibit C may be up ated from time to time upon
mutual written agreement of the arties.
"Training Services" means the training services set forth in an
Order and provided by Nuance pursuant to Section 7 of this
Agreement.
"Update" means a release of a Program that Nuance generally
releases to its customers as part of its Maintenance Services
which may include minor feature enhancements, and/or bug
fixes and/or fixes of minor errors and/or corrections, and
typically is identified by an increase in a release or version
number to the right of the first decimal (for example, an
increase from Version 5.1 to 5.2 or from Version 5.1.1 to
5.1.2). "Update" shall not be construed to include Upgrades.
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3. Grant of License; Limitationsf Other Restrictions.
a. I~icense Grant. Subject to th~ terms and conditions of this
Agreement, Nuance hereby gra~ts Customer a perpetual, nonexclusive, non-transferable licerse to allow the Authorized
Users to utilize the Programs sp~cified by the applicable Order
in a manner commensurate }vith their intended use, as
prescribed by said Order, and $olely for Customer's internal
business purposes.
.. Upgrade" means a release of a Program that Nuance
generally releases to its customers as part of its Maintenance
Services which may include some feature enhancements
and/or additional capabilities (functionality) over versions of
the Programs previously supplied to Customer, and typically is
identified by an increase in the release or version number to
the left of the decimal (for example, an increase from Version
5.2 to Version 6.0). Upgrades do not include new software
and/or products that Nuance, in its sole discretion, designates
and markets as being independent from the Program.
b. Limitations and Restrictions. Customer agrees that it shall
not, and shall not permit t~e Authorized Users, other
employees, contractors, or any third party to (i) duplicate the
Programs for any purpose other than for archival and disaster
recovery purposes; (ii) rev¢rse engineer, disassemble,
decompile or translate the Programs; (iii) change, modify or
otherwise alter the Programs, (i~) assign, transfer, pledge, rent,
share or sublicense any of thtj Programs without Nuance's
prior written consent; (v) grant qny third party access to or use
of the Programs on a ser~ice bureau, timesharing or
application service provider ba~is or otherwise; or (vi) defeat
or circumvent any controls or I,mitations the Program places
on its use.
2. Scope of Agreement.
a. Scope. Subject to the terms and conditions of this
Agreement, Nuance shall supply to Customer the Products,
Third Party Software, Third Party Equipment, and/or Services
specified by each Order. Each Order will constitute a separate
contract between the parties, and will be governed in all
respects by the terms and conditions of this Agreement.
b. Order Process. From time to time during the Contracting
Period, Customer may purchase Products and associated
Maintenance Services, Third Party Software, Third Party
Equipment, Professional Services and/or Training Services
from Nuance by entering into additional Orders with Nuance.
An Order shall become effective when signed by Customer
and accepted by Nuance. If Customer issues purchase orders
as part of its standard business operations, Customer shall
provide Nuance with a purchase order upon returning a signed
Order to Nuance, provided that failure of Customer to provide
a purchase order to Nuance for any reason shall not diminish
Customer's obligations set forth in this Agreement or the
applicable Order. Nuance may accept an Order by fulfillment
of the Products, Third Party Software, Third Party Equipment,
Customer
and/or Services contained in said Order.
acknowledges that, for reasons including Nuance's
modification of supplier base and third party revision to
product lines, the part numbers for Products, Third Party
Software, Third Party Equipment and/or Services actually
delivered may differ from the part numbers set forth in the
applicable Order, provided such change has no impact on
functionality or price as originally contracted.
c. Notice of Unauthorized Use. Customer shall notify Nuance
of the unauthorized possession r use of any Program supplied
under this Agreement, by any third party not authorized by
this Agreement to have such po session, immediately upon its
obtaining any knowledge or not" ce thereof.
4. Third Party Software. Subj ct to the terms and conditions
of this Agreement, Customer s all purchase the Third Party
Software as designated in the a plicable Order in the quantity
and at the price set forth tl erein. Notwithstanding the
forgoing, such Third Party So~ware shall be governed in all
respects only by the license, maintenance terms and other
terms and conditions specified by the applicable third party
vendor.
5. Equipment. Subject to th~ terms and conditions of this
Agreement, Customer shall purchase Equipment and/or Third
Party Equipment from Nuance In the quantity and at the price
set forth in the applicable
rder.
Notwithstanding the
forgoing, the Third Party Equi ment shall be governed in all
respects only by terms and conditions specified by the
applicable third party vendor of such Third Party Equipment.
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c. Designated Affiliate. Nuance may enter into Orders with
Customer's Affiliates listed on Exhibit C ("Designated
Affiliates"). Customer hereby guarantees the full and faithful
performance of each Designated Affiliate's obligations under
this Agreement and the applicable Order. Notwithstanding the
foregoing, in no event shall Customer be relieved of its
6. Shipping.
a. Delivery. Customer shall Ibear all shipping, freight and
transportation charges from Nu,nce's facility.
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Nuance lIerlthcarc Terms of Sale -Rev. Jan. 2010
b. Tille; Risk of Loss. Title to the Equipment shall pass to
Customer upon Nuance's receipt of payment. Risk of loss or
damage to the Products shall pass to Customer upon delivery
to the carrier.
(i) Unless otherwise agreed 0 by the parties hereto, all
training sessions scheduled h reunder will be held at a
designated Nuance location during Nuance's standard
business hours, excluding Nuan e recognized holidays. In the
event the parties agree to hold tl aining sessions at Customer's
site, all such sessions (including travel time) will occur during
the hours of 8:00 a.m. to 5:00 .m. local Customer site time,
Monday through Friday, ex luding Nuance recognized
holidays.
7. Professional Services: Training Services.
a. Provision of Professional Services and Training Services.
Subject to the terms and conditions set forth in this
Agreement, Nuance will provide such Professional Services
and Training Services as may be specified by the applicable
Order.
(ii) Customer shall ensure hat (a) all training session
attendees are Authorized Users nd (b) said Authorized Users
have the necessary skill and e~perience to participate in the
training sessions. Nuance shalll have the right to request that
any attendee who, in Nuance's reasonable judgment, is found
not to have the requisite skill ~nd experience (i.e., does not
have a working knowledge ofth applicable operating system)
be removed from training sessio~s.
b. Professional Services.
(i) Nuance shall perform Professional Services related to
installation of Products, Third Party Software, and Third Party
Equipment pursuant to its project delivery methodology set
forth at:
r
http://www.l1uance.com/heaithcare/services/professionai
services. asp
d.
Rescheduling of Profes~ional Services or Training
Services. Customer agrees to re1'mburse Nuance for any actual
(ii) Within forty five (45) days of the Effective Date of the
applicable Order, Nuance shall develop a final detailed
implementation plan based on the applicable Order and ISO
("Implementation Plan"). The Implementation Plan shall
include an allocation of responsibility for each task to Nuance
or Customer, any technical or physical requirements necessary
for Nuance to complete the installation of the purchased
Products, and any assumptions and/or critical events, the
occurrence or non-occurrence of which serves as condition
upon which the installation services occur. The Fees for the
Professional Services are subject to Customer's fulfillment of
its responsibilities, and/or the occurrence or non-occurrence of
any assumptions and/or critical events, each as set forth in this
Agreement, the applicable Order, ISO, or Implementation
Plan. Failure of Customer to fulfill a responsibility, the
nonoccurrence of an assumption and/or critical event, or any
other modification to Implementation Plan may result in an
extended time line for Nuance to complete the applicable
Professional Services and/or Customer incurring additional
Fees.
Scope changes to the Implementation Plan shall be
identified in writing by Nuance and presented to the Customer
for approval before such additional Professional Services are
delivered, provided Nuance shall not be liable for any
uncompleted or undelivered installation services should
Customer not approve such changes.
incurred costs (e.g., airline tick t deposits, etc.) as a result of
any rescheduling or cancellatio 1 of Professional Services or
Training Services less than five (5) business days prior to the
scheduled start of such Service~ provided the cancellation is
not due to a breach by Nuance.
e. On-Location Professional Sej'vices or Training Services. If
an Order contemplates that Nu!lnce will perform Services at
any location other than Nuanoe's facilities, Customer shall
provide or arrange for the nece~sary equipment, information,
and facilities specified by Nuanqe to Customer.
8. Maintenance Services.
a. Scope. For an initial term of one (I) year following (i) First
Productive Use (in the case of IProducts that, pursuant to the
applicable Order, are to be inst~lled by Nuance) or (ii) initial
delivery if no Professional Sef\jices are involved (the "Initial
Service Term"), Nuance shall provide the Maintenance
Services selected by Customh in the applicable Order.
Thereafter, Maintenance Serviqes shall automatically renew
for four (4) consecutive one-y~ar terms (each, a "Renewal
Service Term") unless (i) cancel~d in writing by either patiy at
least thirty (30) days prior to tije annual renewal date, or (ii)
terminated by either party pursuant to Section II of this
Agreement. Unless otherwise ~greed, Maintenance Services
with respect to any Program s~all apply to all copies of the
Program licensed to Custome~. All Maintenance Services
shall be provided subject to NU~lI1ce's Hardware and Software
Maintenance Options, Terms an~ Conditions in effect as of the
provision of such Maintenance $ervice.
(iii) Nuance will send an email notification to the Customer
indicating when the Professional Services related to
installation have been completed. Said email will be sent to
the email address provided by the Customer in the applicable
ISO, and the date of completion of the Professional Services
contain therein shall be deemed the date of First Productive
Use. The parties acknowledge that First Productive Use may
occur prior to Nuance completing those Services set forth in
an Order that are intended by the parties to be performed postinstallation (e.g., training services).
b. Exclusionsfi'om Maintenan 'e Services. Unless otherwise
agreed, Nuance shall not be obI gated to provide Maintenance
Services for, or required as res It of (i) any Product modified
by anyone other than Nuance: ii) any Product used for other
than its intended purpose; (iii any Product used with any
Third Party Equipment not spe ified as compatible with said
Product in the Product's Doc mentation; (iv) any Product
being used with Third Party So ware not supplied or specified
by Nuance; (v) any Produ
(including any associated
c. Training Services.
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Nuance He Ithcare Terms of Sale -Rev. Jan. 20 I 0
a. Fees for Product, Third P rty Equipment, Third Party
So[tll'are, Professional Servic s, li-aining Services, and
,\Iaintenance Services provide during the Initial Service
Term (as applicable).
equipment, software or firmware) which Customer failed to
properly install or maintain; (vi) any willful or negligent
action or omission of Customer, (vii) any computer
malfunction not attributable to the Products; or (viii) damage
to Products from any external source, including computer
viruses unattributable to Nuance, computer hackers, or force
majeure events.
(i) [fthe value of the Order is I ss than $50,000, or if Nuance
is not providing Professional S rvices related to the delivery
of the Products, Third Party E uipment, and/or Third Party
Software at Customer's locatiO! , then Customer will pay all
Fees for the Products, Third aliy Equipment, Third Patiy
Software, Training Services ~nd/or Maintenance Services
related to the [nitial Service T¢rm in full within thirty (30)
days of date of Nuance's invoice.
9. Customer's Obligations. Customer shall timely perform
the obligations imposed on it by this Agreement and each
Order. [n addition, Customer agrees as follows:
a. Data Preservation. Customer will create and preserve
reasonable backup copies of its data and other business
information and records, perform accuracy checks on a routine
basis, and take such other precautions as may reasonably be
required to detect and guard against possible malfunctions,
loss of data, or unauthorized access to Customer's computer
systems.
(ii) [fthe value of the Order is $~O,OOO or greater, and Nuance
is performing Professional S~rvices related the to the
installation of the Product, Tltrd Party Equipment, and/or
Third Party Software at CUftomer's location, then the
following shall apply:
b. Speech Recognition. Customer acknowledges that speech
recognition and medical fact extraction are statistical
processes, errors are inherent in such processes, and
applications employing such processes are designed to allow
for such errors. Customer further acknowledges that such
errors are inevitable and agrees that it is the sole responsibility
of Customer to identify and correct any such errors before
using and/or relying on the results of the use of any speech
recognition or medical fact extraction software program
licensed hereunder.
Accordingly, Customer agrees to
indemnify and hold harmless Nuance, its affiliates, licensors
and suppliers, and their respective officers, agents, and
employees (collectively, the "~Indemnified Paliies") from and
against all liabilities, losses, costs, damages, claims or
expenses (including reasonable attorneys fees) arising out of,
or related to, any claims or suits, whatever their nature and
however arising, which may be brought or made against any
Indemnified Party by reason of, or arising from, any allegation
that the use by Customer of any speech recognition or medical
fact extraction software program licensed hereunder directly
or indirectly caused or contributed to the wrongful death or
personal injury of a third party to whom Customer offered or
provided medical-related services.
(I) Nuance shall invoice Customer thirty-three percent
(33%) of the Fees related t the Product, Third Party
Equipment, Third Party Soft are, Professional Services,
Training Services and/or Maint nance Services related to the
[nitial Service Term upon exec tion of the applicable Order,
and Customer shall pay said invoice within thirty (30) days of
the date thereof.
(2) Nuance shall invoice Customer thirty three percent
(33%) of the Fees related to the Product, Third Party
Equipment, Third Party Soft~are, Professional Services,
Training Services and/or Maint~.nance Services related to the
[nitial Service Term upon shipment of the Products, Third
Party Equipment and/or Third Party Software, and Customer
shall pay said invoice within thirty (30) days of the date
thereof.
(3) Nuance shall invoice~Customer the remaining Fees
related to the Product, Third arty Equipment, Third Party
Software, Professional Service, Training Services and/or
Maintenance Services related to the [nitial Service Term upon
First Productive Use, or one h ndred and eighty (180) days
after the execution of the applic ble Order if the Professional
Services related to installation
s delayed through no fault of
Nuance (whichever shall first 0 cur), and Customer shall pay
said invoice within thirty (30) d s of the date thereof.
c. Customer Data. [n order to continually improve the quality
of speech recognition of the Programs, Customer shall provide
Nuance access to voice and text data residing on the Products
located at Customer's installation site and grants Nuance a
perpetual, royalty-free license to copy, use and analyze such
data for speech recognition research. All products created in
whole or part using said data shall be and remain the sole
property of Nuance.
(4) Unless Customer w~ives in writing the right to
review as specified herein, Customer shall have fourteen ([ 4)
days from the date of First Productive Use (a "Review
Period") to provide Nuance written request ("Corrections
Request") reasonably detailing' ow the Product, Third Party
Equipment, and/or Third Party Software failed to materially
comply with the specifications, t sts and other criteria set forth
in the Documentation ("Co lpletion Criteria").
Any
Corrections Request should be ent to the applicable project
manager,
with
a
copy
e-mailed
to
Nuance
shall
use
corrections.re uest (, nuance.cO!
commercially reasonable effo s to correct any material
failure(s) of the Product, Third arty Equipment, and/or Third
Party Software documented in the Corrections Request to
conform to the Completion Crit ria. Nuance shall deliver the
10. Payments. [n consideration for the Products, Third Party
Software, Third Party Equipment, and/or Services provided by
Nuance under this Agreement and/or Orders, Customer agrees
to pay, as applicable, all of the fees and other charges
(including, but not limited to, all taxes, shipping, freight,
handling and similar costs) specified in the applicable Order
(collectively, the "Fees") as follows:
4
Nuance He thcare Terms of Sale -Rev. Jan. 2010
e. l>ate Fees. If Customer fail to pay any Fees when due,
Nuance shall be entitled to asse s a late fee equal to one and
one-half percent (1.5%) of th past due balance for each
month or pati thereof that the b lance remains outstanding or,
if lower, the maximum rate pen itted by applicable law.
revised Product, Third Party Equipment, and/or Third Patiy
Software to Customer within fifteen (15) business days of
receiving such Corrections Request and Customer shall have
an additional Review Period of fOUlieen (14) days from the
date of receipt of such revised Products, Third Party
Equipment, and/or Third Party Software in which it may
provide Nuance another Corrections Request pursuant to the
above. The foregoing review/correction process shall be
repeated until such time a Review Period concludes without
Nuance receiving a Corrections Request; provided that, if
Nuance is unable to correct material failure(s) in a patiicular
Product, Third Party Equipment, and/or Third Party Software
to satisfy the Completion Criteria after three (3) attempts,
Nuance may terminate the applicable Order and refund (i)
Fees received for the Product, Third Party Equipment, and
Third Party Software less a twenty percent (20%) restocking
fee, and (ii) Fees received for Training Services and
Maintenance Services unperformed by Nuance due to the
termination. Upon such termination, Customer shall return the
Product, Third Party Equipment, and/or Third Party Software,
including any copies thereof and related documentation, to
Nuance.
f.
Leasing Arrangements. If Customer has entered into a
lease arrangement with a third party financer ("Lessor") to
finance the Order, then Nuance $hall submit its invoice for the
Order to and accept payment fdr the Order from, the Lessor.
Acceptance of a purchase order from the Lessor is for
administrative convenience onily.
Upon delivery of the
Products by Nuance to Customer if Lessor fails to pay Nuance
the amounts owing in accordanfe with the lease arrangement
then Customer remains fully liaple to Nuance for all amounts
due and owing under the ord~' r and shall pay all amounts
in~mediately upon receipt of Nance's invoice, in accordance
with the payment schedule outli ed below.
II. Term; Termination.
I
a. Term of Agreement; Purc~ases. This Agreement shall
become effective as of the Effebive Date and, unless sooner
terminated in accordance witl) Section ll.b hereof, shall
continue until the expiration or termination of the last existing
Order ("Agreement Term").
(5) Upon conclusion of any Review Period in which
Nuance does not receive a Corrections Request, or Nuance's
receipt of Customer's waiver of review specified in Section
10.a.(ii)(4) (whichever shall first occur), Nuance's obligations
set forth in the applicable Order shall be deemed fulfilled and
the applicable Product, Third Party Equipment, and/or Third
Party Software accepted by Customer.
b. Termination for Calise. Either party may terminate any
Order by written notice if (i) the other party commits a
material breach of this Agreelllent and fails to cure such
breach within thirty (30) days altter receipt of written notice of
~uch breach or (ii) the other I party shall be or becomes
IIlsolvent. Notwithstanding t~e foregoing, Nuance may
immediately terminate any lic4nse granted pursuant to this
Agreement without notice if Customer commits a material
breach of Section 3 and/or 12 herein.
b. Fees for Maintenance Services for Renewal Service Terms.
Nuance will invoice Customer for Maintenance Service Fees
in respect of each Renewal Service Term at Nuance's list price
for such Maintenance Services, then in effect when initially
contracted in the applicable Order, at least thirty (30) days
prior to the first day of such Renewal Service Term, and
Customer will pay such Maintenance Service Fees within
thirty (30) days of the invoice date. If the applicable Order
does not specify a Maintenance Service Fee for a given unit of
Product, the applicable Maintenance Service Fee will equal
then-current rates as of the first day of the Initial Service Term
or Renewal Service Tenll, as applicable.
c. Suspension. Nuance reserve! the right to suspend Services
to Customer under any and all Orders during any period in
which Customer's account und r anyone or more Orders is
more than thirty (30) days past ue.
d. F,f[ect ()[ Termination or Ex iration. Upon the termination
or expiration of any Order by ei her party, all licenses granted
to Customer under such Order shall terminate and Customer
shall cease using the applicab e Programs and shall return
same to Nuance. Neither the ex iration nor termination of this
Agreement, any individual Ord rs, or any license shall affect
the parties' respective payment lobligations or their riohts and
obligations under Sections 9 herein.
b
c. Expenses. All prices are net to Nuance and are exclusive of
any duties, travel, telecommunication, meals, boarding,
lodging, and other out-of-pocket expenses that may be
incurred. Customer shall pay all such expenses within thirty
(30) days of Nuance's invoice.
20
12. Ownership and Proprietary Rights. Except for the limited
licenses granted pursuant to thi' Agreement, the terms of the
Agreement do not convey any 0 nership or other rights of any
kind to Customer in or to the P ograms. Nuance, as between
Nuance and Customer, shall 0
all right, title and interest in
and to all Programs (including, ithout limitation, all Updates,
Upgrades, improvements, en ancements, and/or custom
features and functions) and all patents, copyrights and other
intellectual property rights ther in. Effective on delivery of
each Update or Upgrade to Cust mer, Nuance shall be deemed
to have granted Customer a lirense to use such Update or
d. Taxes. All amounts described herein are exclusive of any
applicable sales, use, excise or withholding taxes or any other
taxes, fees, customs duties and charges now in force or
enacted in the future. Accordingly, all payments are subject to
an increase equal to any charges Nuance may be required to
collect or pay, other than the tax due on the net income of
Nuance. If Customer claims tax-exempt status, Customer
shall provide a valid exemption certificate to Nuance upon the
execution of this Agreement and/or upon the execution of each
If Customer fails to provide a valid exemption
Order.
certificate, it will be responsible for any and all sales taxes.
5
Nuance Hetlthcare Terms of Sale -Rev. Jan. 20 I 0
a. Title Warranties. Nuance arrants that it has sufficient
right, title and interest in the P ograms to grant the licenses
contemplated by this Agreemen , and that the Equipment will
be free and clear of all liens an encumbrances when and as
delivered.
Upgrade in conjunction with the Program to which such
Update or Upgrade relates, subject to the terms of this
Agreement.
13. Confidentiality.
a.
"Col?fidential Ii?formation" for the purposes of this
Agreement shall mean all tangible and intangible confidential
and proprietary information and trade secrets (whether or not
patentable or copyrightable) owned or possessed by either
party ("'Disclosing Party") prior to the expiration or
termination of this Agreement, including without limitation,
each paIty's and
its affiliates'
and subsidiaries'
business/customer information, business practices, data
processes, computer or software products or programs and all
related documentation, cost and pricing data, know-how,
marketing or business plans, analytical methods and
procedures,
hardware
design,
technology,
financial
information, personnel or customer data, in each case that is
disclosed to the other patty ("Receiving Party") or to which
the Receiving Party gains access in connection with this
Agreement.
Confidential Information shall not include
Protected Health Information or PHI (as defined in Exhibit B),
the protection of which is governed by Exhibit B.
b. Program Warranty. Nua ce warrants that, upon First
Productive Use (in the case of rograms that, pursuant to the
applicable Order, are to be in tailed by Nuance) or initial
delivery (in all other cases) an for a period of ninety (90)
days thereafter, the Programs hall conform in all material
respects to the applicable Docun, entation.
c. Equipment Warranty. Nuapce warrants that, upon First
Productive Use (in the case of E1quipment that, pursuant to the
applicable Order is to be ins~alled by Nuance) or initial
delivery (in all other cases) an~ for a period of ninety (90)
days thereafter, the Equipment jshall conform in all material
respects to the applicable DOCUi'entation.
d. Services Warranty. Nuan
provided by Nuance pursuant t
competent and professional
competent and professional man
e warrants that the Services
this Agreement shall be of a
uality and performed in a
er.
e. Limitation of Warranties. 1!he aforementioned warranties
of Sections 14.a - 14.d shall not apply, and Nuance shall have
no warranty obligation or liability with respect to (i) any
Product that is damaged through no fault of Nuance; (ii) any
Product that is modified by an~one other than Nuance; (iii)
any Product that is used fori any purpose other than its
intended purpose; (iv) any pr~duct that is used with Third
Party Equipment not specified a compatible with said Product
in the Product's Documentatio ; (v) any Product that is used
with Third Party Software not, specified as compatible with
said Product in the Product's Documentation; (vi) any Product
that Customer fails to properly: install or maintain; (vii) any
Product that is misused by any arty other than Nuance; (viii)
any computer malfunction not ttributable to the Products or
Nuance; (ix) any incorrect use of the Products by any party
other than Nuance; or (x) any willful or negligent action or
omission of Customer. THE E UIPMENT MAY CONTAIN
RECYCLED,
REMA UF ACTURED
OR
RECONDITIONED
CO PONENTS,
WHICH
COMPONENTS ARE WAR ANTED AS NEW.
As
Customer's exclusive remedy n the event of any warranty
claim hereunder, Nuance, duiling the foregoing respective
warranty periods and at its sold option, will make reasonable
efforts to correct or cure puch nonconformity, defect,
contaminant or breach; or replace such Products in lieu of
curing such nonconformity, deft ct, contaminant or breach.
b. Nondisclosure.
(i) The Receiving Party agrees (I) to hold the Disclosing
Patty's Confidential Information in strict confidence, and
apply at least the standard of care used by the Receiving Party
in protecting its own Confidential Information, and not to
disclose such Confidential Information to any third party, and
(2) without the written permission of the Disclosing Party, not
to use any Confidential Information of the Disclosing Party
except as reasonably required to exercise its rights or perform
its obligations under this Agreement.
(ii) The Receiving Party agrees to limit disclosure of the
Disclosing Party's Confidential Information to those
employees who need to know the same to accomplish the
purposes of this Agreement, and who have executed a written
agreement with terms substantially similar to those contained
herein.
c. Exclusions. The obligations to preserve the confidential
nature of any of the Confidential Information described herein
shall not apply to information that (i) was previously known to
the Receiving Party free of any obligation to keep it
confidential; (ii) is or becomes generally known to the public
or is obtainable from public sources other than as a result of an
act or omission of the Receiving Party; (iii) is independently
developed by or on behalf of the Receiving Party without use
of or reference to the Disclosing Patty's confidential
information; or (iv) the Receiving Party is compelled to
disclose the Confidential Information by a governmental
agency or a court of law having proper jurisdiction. If
disclosure is compelled pursuant to subsection (iv) of this
section, the Receiving Party shall give the Disclosing Party
reasonable notice to enable such party to try to protect the
confidentiality of the Confidential Information.
f. Disclaimer. WITH THE OLE EXCEPTION OF THE
WARRANTIES EXPRESSL
SET FORTH IN THIS
AGREEMENT, NUANCE
ISCLAIMS ALL OTHER
WARRANTIES, EXPRESS 0 IMPLIED, AND HEREBY
EXPRESSL Y DISCLAIMS A Y IMPLIED WARRANTY
OF
MERCHANTABILITY,
FITNESS
FOR
ANY
PARTICULAR
PURPOS ,
AND/OR
NONINFRINGEMENT.
NUA CE
MAKES
NO
REPRESENT A TION OR W RRANTY WITH RESPECT
14. Limited Warranties.
6
Nuance Hctlthcare Terms of Sale -Rev. Jan 2010
court of competent jurisdiction or settlement of the Claim
agreed to by Nuance. Nuance's obligation under this Section
16 shall be subject to Custon er's providing Nuance with
prompt notice of any Claim, co peration with Nuance in the
defense and settlement of the CI im, and granting Nuance sole
control over the defense or settle nent of the Claim.
TO ANY THIRD PARTY SOFTWARE OR THIRD PARTY
EQUIPMENT. Nuance's sole obligation with respect to such
Third Party Software and Third Party Equipment shall be to
make commercially reasonable effot1s to assist Customer to
enforce the warranties extended by the producer of the
applicable Third Party Software or Third Party Equipment, if
any.
c. In the event a court of cotlpetent jurisdiction makes a
determination that any Progr m infringes, or if Nuance
determines that the Program Ii ely infringes, Nuance, at its
option and expense, shall: (i) m~dify the infringing portion of
the Program so as to make it npn-infringing; (ii) replace the
infrillging Program with a noh-infringing program having
substantially similar functionality; (iii) obtain the right to
continue using the infringing p 11ion of the Program; or (iv)
refund Customer the Fees pa d for the affected Program
prorated over a five-year period rom the delivery date.
15. Limitation of Liability. EXCEPT FOR CUSTOMER'S
BREACH
OF
SECTION
3
AND
CUSTOMER'S
OBLIGATIONS SET FORTH IN SECTION 9.B ABOVE,
UNDER NO CIRCUMSTANCES WILL EITHER PARTY
HAVE ANY OBLIGATION OR LIABILITY TO THE
OTHER HEREUNDER FOR ANY
INCIDENTIAL,
INDIRECT,
CONSEQUENTIAL,
COLLATERAL,
EXAMPLARY, PUNITIVE OR SPECIAL DAMAGES
INCURRED BY THE OTHER PARTY (INCLUDING
DAMAGES FOR LOST BUSINESS, LOST PROFITS,
COSTS OF COVER, COSTS OF DELAY, DAMAGES TO
BUSINESS REPUTATION, OR LOSS OR DESTRUCTION
OF DATA), REGARDLESS OF HOW SUCH DAMAGES
ARISE, WHETHER OR NOT A PARTY WAS ADVISED
SUCH DAMAGES MIGHT ARISE, OR THE FAILURE OF
THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
IN NO EVENT SHALL NUANCE HA VE ANY
OBLIGATION, OR BE LIABLE FOR ANY DAMAGES,
DIRECT OR OTHERWISE, IN EXCESS OF THE
AMOUNTS PAID BY CUSTOMER TO NUANCE
PURSUANT TO THE APPLICABLE ORDER IN THE
TWELVE (12) CALENDAR MONTHS PRECEDING THE
EVENT THAT GAVE RISE TO THE CLAIM.
THIS
LIMITATION IS CUMULATIVE; THE SUM OF
MULTIPLE CLAIMS MAY NOT EXCEED THIS LIMIT.
UNDER NO CIRCUMSTANCE SHALL NUANCE'S
THIRD PARTY SUPPLIERS BE RESPONSIBLE OR
LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR
ANY DAMAGES, DIRECT OR OTHERWISE. BECAUSE
SOME JURISDICTIONS DO NOT ALLOW THE
EXCLUSION OR LIMITATION OF LIABILITY FOR
CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE
ABOVE
LIMITATION
MAY
NOT
APPLY
TO
CUSTOMER.
d. Nuance's obligations under his section shall not apply to
the extent of any Claim or in ringement resulting from (i)
Customer's continued use of he infringing Program after
receipt of notice from Nuance 0 a claim or after receipt of the
remedy required of Nuanc
under this section; (ii)
modifications to the Programs b any party other than Nuance;
(iii) modifications to the Programs made pursuant to
Customer's express instructions; (iv) combination or use of
the Programs with other produQts, processes or materials not
provided by Nuance or specified by the applicable
Documentation; or (v) Customer's use of the Programs other
than in accordance with the terms ofthis Agreement.
e. Nuance's indemnity obligations set forth in this Section 16
shall constitute the sole liability of Nuance, and the sole
remedy of Customer, with regard to claims, actions, suits or
proceedings made or brought ~gainst Customer by a third
party alleging that Customer's ruse of the Programs infringe
such third pa11y's United States !patent, trade secret, copyright
or other intellectual property rig t.
17. HIPAA Compliance. Th parties hereby agree to the
terms of the Business Associate Agreement attached hereto as
Exhibit B and made a part ofthi Agreement.
18. US Government End User. This section applies to all
acquisitions of Programs (colle tively or individually for the
purposes of this section,
he "Government Acquired
Products") by or for the gover ment of the United States of
America (the "Federal Gove nment"), or by any prime
contractor or subcontractor (at any tier) under any contract,
grant, cooperative agreement or other activity with the Federal
Government.
By accepting elivery of the Government
Acquired Products, the Feder I Government hereby agrees
that this software qualifies as "commercial" computer
software within the meaning 0 the acquisition regulation(s)
applicable to this procurement. The terms and conditions of
this Agreement shall pertain to he Federal Government's use
and disclosure of the Govern ent Acquired Products, and
shall supercede any contli ting contractual terms or
conditions.
If this Agreemel t fails to meet the Federal
Government's needs or is inc nsistent in any respect with
United States law, the Federal Government agrees to return
16. Intellectual Property Indemnification.
a. Customer, at its expense, will defend, indemnify and hold
Nuance harmless from any claim, action, suit or proceeding
made or brought against Nuance by a third party resulting
from Customer's designs, specifications, modifications,
translations or combination of the Programs with other
equipment or software infringes a third party's United States
patent, trade secrets, copyright or other intellectual property
right.
b. Nuance, at its expense, will defend Customer from any
claim, or suit made or brought against Customer by an
unaffiliated third pa11y alleging that Customer's use of the
Programs within the scope of this Agreement infringes such
third pa11y's United States patent, trademark or copyright
(each, a "Claim"), and indemnify Customer from any resulting
judgment of the Claim finally awarded against Customer by a
7
Nuance He' Ithcare Terms of Sale -Rev. Jan. 2010
the Government Acquired Products unused. The following
additional statement applies only to acquisitions by the
Federal Government that are governed by DFARS Subpart
227.4 (October 1988): "Restricted Rights - Use, duplication
and disclosure by the Government is subject to restrictions as
set forth in subparagraph (c)(l )(ii) of the Rights in Technical
Data - Noncommercial Items clause at DF ARS 252.227-7013
(1995)."
g. No Third Party Beneficiar·es. Except as set forth in
Section 9.b, nothing in this Ag eement is intended to create
any rights in, or confer any bene Its upon, any person or entity
other than the parties to this Agr ement.
19. Governing Law. This Agreement will be governed by the
laws of the State of California, without regard to principles of
conflict of laws. The parties hereto agree to submit all
disputes related to this Agreement to the courts in the State of
California, to which, each party consents to the jurisdiction of
such courts and waives any objection it may have with respect
to venue.
i. Force ,\fajellre. Neither p~liY shall be responsible for
delays or fail~re in performanc~ resulting from acts beyond
the control of such party, includ,ng without limitation, acts of
God, strikes, lockouts, riots, aqts of war, acts of terrorism,
epidemics, fire, communication !Iine failures, power surges or
failures, earthquakes or other dlsasters. Nuance shall not be
liable for delays or for failure ~o manufacture and/or deliver
due to causes beyond its reasonable control.
h. Assignment. In no event ma Customer assign its rights or
obligations hereunder or sub ontract any portion of its
performance hereunder witho t Nuance's prior written
consent.
I
20. Miscellaneous Provisions.
j. Notices. All notices hereund~r shall be sent to the parties at
their respective addresses first s t forth above, or at such other
addresses as they may designat by written notice. Customer
shall also send a copy of all I otices it sends to Nuance to
Nuance's General Counsel at
Wayside Road, Burlington,
MA 01803. All notices shall e deemed to have been given
when (i) delivered personally, (ii) sent via certified mail
(return receipt requested), (iii) s nt fax (all with confirmation
of receipt), or (iv) sent via recoghized air courier service.
a. Audit. Nuance, or a third party appointed by Nuance, shall
have the right, not more than once a year and upon reasonable
notice, to conduct an audit of Customer's records to confirm
compliance with the terms of this Agreement. Any audit shall
be performed during Customer's normal business hours.
b. Injunctive Relie.! The parties hereto agree that remedies at
law may be inadequate to protect against a breach of Sections
3, 12, 13 and 17 hereof and both parties hereby agree to grant
injunctive relief in favor of the other party without proof of
actual damages for any breach of those sections.
k. Entire Agreement, Amendments, Waiver, Severability. This
Agreement (i) is being enterd into among competent and
experienced business persons artd the terms and provisions of
this Agreement shall not be cohstrued in favor of or against
either party and (ii) constit~tes the sole and complete
agreement between the partie$ with regard to its subject
matter, and may not be modi ed or amended except by a
writing signed by both parties ereto. Neither party shall be
subject to any provisions of any pre-printed purchase order, or
any Customer policies, regulatio s, rules, or the like, including
those set forth in any Customer ponsored registration system,
regardless if such requires affir ative acknowledgement from
a Nuance representative.
An failure to insist on the exact
performance of any provision s all not constitute a waiver of
any rights by either party, all f which are hereby expressly
reserved. If any of the provisi ns of this Agreement shall be
or become invalid or unenf; rceable, such invalidity or
unenforceability shall not inval'date or render unenforceable
the remaining provisions of th s Agreement.
The section
headings used herein are for re rences and convenience only,
and shall not enter into the. interpretation hereof. This
Agreement may be executed lin multiple counterparts and
delivered by facsimile transmifsion, each of which shall be
deemed an original but all of hich shall constitute one and
the same instrument.
c. Export. Where applicable, each party agrees to comply
with all export laws and restrictions and regulations that the
Department of Commerce or other United States or foreign
agency or authority issues, and not to knowingly export, or
allow the export or re-export in violation of any such
restrictions, laws or regulations, or without all required
licenses and authorizations.
d. Independent Status of Parties. Nothing contained in this
Agreement, nor in the relationship created thereby, shall be
interpreted to evidence a joint venture, partnership or
principal-agent relationship between Nuance and Customer.
Neither party shall have any right or authority to act on behalf
of, or incur any obligation for, the other party.
e. Publicity. Intentionally Deleted.
f. Order of Precedence. The Agreement, Business Associate
Agreement, Hardware and Software Maintenance Options
Terms and Conditions, and each Order, as applicable and to
the extent reasonably possible, shall be construed so as to be
consistent with each other. If the aforementioned documents
cannot reasonably be construed as consistent with each other,
then each document shall prevail over all documents listed
subsequently in the preceding sentence.
8
Nuance He Ithcare Terms ofSa1e -Rev. Jan. 2010
IN WITNESS WHEREOF, THE PARTIES HAVE EXECUTED THIS AGREEMENT THROUGH T
REPRESENTATIVES ON THE DATES INDICATED BELOW. EACH OF THE INDIVIDUALS SI
AND/OR ANY SUPPLEMENT PERSONALLY REPRESENTS AND WARRANTS THAT THE P
SHE IS ACTING HAS DULY AUTHORIZED THE EXECUTION AND PERFORMANCE OF THIS
Nuance Communications, Inc.
?;h-Ir"et. CaA. ,ge",reA.
EIR DULY AUTHORIZED
NING THIS AGREEMENT
RTY FOR WHOM HE OR
GREEMENT.
San Joaquin General Hospital
SignatureDan;el Carpenter (May~6, 2014)
Signature,,-:_ _ _ _ _ _ _--+_ _ _ __
Daniel Carpenter
Name: _ _ _ _ _ _ _ _ _ _ _ _ _ __
Name: _ _ _ _ _ _ _ _ _+-_____
VP WW Sales Ops
Title: _ _ _ _ _ _ _ _ _ _ _ _ _ __
Title: _ _ _ _ _ _ _ _ _-+-_ _ _ __
Date: _ _ _ _M_a_y_16_,_2_0_1_4_ _ _ _ __
Date: _ _ _ _ _ _ _ _ _ _- - - - -
EXHIBIT A
ORDER FORM
INTENTIONALLY BLANK
HIPAA Business Associate Addendum
This HIPAA Business Associate Addendum (the "Addendum"), effective on the date when signed b the last party ("Addendum
Effective Date"), is by and between Nuance Communications, [nco ("Nuance" or "Business Associate' ) and San Joaquin Genera[
Hospital ("Customer" or "Covered Entity"). This Addendum applies only if and to the extent Nuanc I is a "Business Associate" to
.
Customer, as defined by H[PAA.
WHEREAS, Customer and Nuance have entered into, or are entering into, one or more agreements tetween each other (each, an
"Agreement"), under which, Nuance may perform certain services on behalf of or for Customer pu suant to the Agreement that
require Nuance to access, create and use health information that is subject to the federal privacy regulat ons (the "Privacy Rule") and
the federal security regulations (the "Security Rule") issued pursuant to the Health Insurance Potiabil ty and Accountability Act of
1996 ("H[PAA") and codified at 45 C.F.R. patiS 160 and 164, and Subtitle D of the Health Information. echnology for Economic and
Clinical Health Act provisions of the American Recovery and Reinvestment Act of2009 (the "H[TECH Act"); and
WHEREAS, Nuance and Customer are entering into this Addendum to establish the responsibilitles of both parties regarding
Protected Health Information, and to bring the Agreement into compliance with HIPAA and the HITEC~ Act.
NOW, THEREFORE, the parties hereto agree to incorporate and make a part of each Agreement unde! which Nuance receives PHI
from, or creates or receives PHI on behalf of, Customer while performing services for Customer, the f, 1I0wi ng additional terms and
conditions, which terms and conditions shall govern the use and/or disclosure of such PHI received or cr ated by Nuance as a result of
services performed.
AGREEMENT
I.
Definitions. Capitalized terms used in this Addendum, but not otherwise defined, shall have the sa$le meanings ascribed to them
i
in the Privacy Rule, the Security Rule and the HITECH Act.
Specific definitions:
•
2.
Protected Health Information. "Protected Health Information" or "PHI" shall have the sanie meaning given to such term
in 45 C.F.R. § 160.1 03, limited to the information created or received by Business As~ociate from or on behalf of
Covered Entity.
Permitted Uses and Disclosures. Except as otherwise specified herein, Business Associate may !use and/or disclose Protected
Health Information ("PHI") to perform the functions, activities, or services for or on behalf of CovFred Entity as specified in the
Agreement, provided that such use and/or disclosure would not violate HIPAA if done by Covere~ Entity. Except as otherwise
I
limited in the Agreement, Business Associate may:
a.
use PHI for the proper management and administration of Business Associate and to carry
Business Associate.
o~t the legal responsibilities of
I
!
b.
disclose PHI for the proper management and administration of Business Associate and to carl out the legal responsibilities
of Business Associate, provided that the disclosures are required by law, or Business Associate obtains reasonable assurances
from the person to whom PHI is disclosed that the PHI will remain confidential and used or fu her disclosed only as required
by law or for the purpose for which it was disclosed to the person, and the person notifi s Business Associate of any
.
instances of which it is aware in which the confidentiality ofPH[ has been breached.
c.
use PHI to provide Data Aggregation services to Covered Entity as permitted by 42 C.F.R. § I 64.504( e)(2)(i)(B).
Business Associate may use PHI to report violations oflaw to appropriate Federal and State authori ies, consistent with 45 C.F.R.
§ 164.502(j)( 1).
3.
Responsibilities of Business Associate. Except as otherwise required by law, Business Associate s all use PHI in compliance wit
45 C.F.R. §164.504(e). To comply with the security and privacy obligations imposed by HIPAA, B siness Associate agrees to:
a.
implement administrative, physical, and technical safeguards that reasonably and appropriat ly protect the confidentiality,
integrity, and availability of the electronic PHI that it creates, receives, maintains, or transmits n behalf of Covered Entity as
required by HIPAA. Business Associate acknowledges that pursuant to Section 13401(a) oft e H[TECH Act, 45 C.F.R. §§
164.308, 164.310, 164.312 and 164.316 shall apply to Business Associate in the same mann r that such sections apply to
Covered Entity.
b.
notify Covered Entity of any successful Security Incident of which Business Associate become aware.
c.
not use or fUl1her disclose PHI other than as permitted or required by the Agreement, or as requ red by law.
d.
use appropriate safeguards to prevent the use or disclosure of PHI other than as provided for by the Agreement.
e.
report to Covered Entity any use or disclosure of PHI not provided for by the Agreement of which Business Associate
becomes aware, and.
f.
ensure that any agents, including a subcontractor, to whom it provides PHI (received from, or cfeated or received by Business
Associate on behalf of, Covered Entity) agrees in writing to the same restrictions and conditiTs on the use or disclosure of
PHI that apply to Business Associate with respect to such PHI.
I
I
g.
make PHI available to Covered Entity or, as directed by Covered Entity, to an Individual wh is the subject of the PHI, to
comply with an Individual's right of access to their PHI in compliance with 45 C.F.R. §164.5 4 and Section 13405(e) of the
HITECH Act. This provision shall be applicable only if Business Associate maintains a Desig ated Record Set on behalf of
Covered Entity.
h.
make PHI available to Covered Entity for amendment and incorporate any amendment(s) to P I that Covered Entity directs,
in accordance with 45 C.F.R. § 164.526. This provision shall be applicable only if Busi ess Associate has PHI in a
Designated Record Set.
J.
document disclosures of PHI and information related to such disclosures as would be required for Covered Entity to respond
to a request by an Individual for an accounting of disclosures of PHI in accordance with 45Ic.F.R. § 164.528 and Section
13405(c) of the HITECH Act.
i
j.
make available to Covered Entity in response to a request from an Individual, the inforIT\ation required to provide an
accounting of disclosures of PHI with respect to the Individual in accordance with 45 C.F .R. § ~ 64.528 and Section 13405( c)
of the HITECH Act.
.
k.
make its internal practices, books, and records relating to the use and disclosure of PHI receiveid from, or created or received
by Business Associate on behalf of, Covered Entity available to the Secretary of the Depahment of Health and Human
Services or his/her designee (the "Secretary"), in a time and manner designated by the Secretarr, for purposes of determining
Covered Entity's compliance with the HIPAA.
I
1.
notify Covered Entity following Business Associate's discovery of a security breach of Unse ured PHI, in accordance with
Section 13402 of the HITECH Act.
m.
refrain from exchanging any PHI with any entity (including Covered Entity) of which Busines Associate knows of a pattern
of activity or practice that constitutes a material breach or violation of HIPAA, and upon bec ming aware of such behavior
by an entity with which Business Associate has already exchanged PHI, take reasonable steps to cure the breach or end the
violation, as applicable, and if such steps are unsuccessful, terminate the contract or arrangeme t with such entity, iffeasible;
or if termination is not feasible, report the problem to the Secretary, in accordance with Secti~n 13404 of the HITECH Act
and 45 C.F.R § 164.504( e).
n.
limit the use, disclosure or request for PHI in accordance with Section 13405(b) of the HITEC
o.
refrain from receiving any remuneration in exchange for any Individual's PHI unless such excl ange (i) is pursuant to a valid
authorization that includes a specification of whether the PHI can be further exchanged f, r remuneration by the entity
receiving PHI of that Individual, or (ii) satisfies one of the exceptions enumerated in the HIPA regulations and specifically
Section 13405(d)(2) ofthe HITECH Act.
p.
refrain from marketing activities that would violate HIPAA and specifically Section 13406 oft e HITECH Act.
,
4.
Responsibilities of Covered Entity. Covered Entity shall:
a.
provide Business Associate with the notice of privacy practices that Covered Entity produces in accordance with 45 C.F.R.
§ 164.520, as well as any changes to such notice.
b.
provide Business Associate, in writing, with any changes in, or revocation ot~ permlSSlOl by Individual to the use or
disclosure of PHI, if such changes affect Business Associate's permitted or required uses or disclosures. Upon receipt by
Business Associated of such notice of changes, Business Associate shall cease the use and discI sure of any such Individual's
PHI except to the extent it has relied on such use or disclosure, or where an exception under HI AA expressly applies.
c.
notify Business Associate of any restriction to the use or disclosure of PHI that Covered Enti y has agreed to in accordance
with 45 C.F.R. § 164.522.
Termination.
5.
a.
Termination for Cause. Either p3I1y may immediately terminate the Agreement if such part1' (the "Non-Breaching Party")
determines that the other party (the ""Breaching Party") has breached a material term of this ddendum. Alternatively, the
Non-Breaching Party may choose to provide the Breaching Party with written notice of the e istence of an alleged material
breach and afford the Breaching Party an opportunity to cure the alleged breach. Failure to c re the material breach within
thirty (30) days of the written notice constitutes grounds for immediate termination of the Agretment.
I
b.
Effect of Termination.
II
(I) Except as provided in paragraph (2) of this Section 5(b), upon termination of the Agree ent for any reason, Business
Associate shall return or destroy all PHI received from Covered Entity, or created or rece ved by Business Associate on
behalf of Covered Entity. This Section 5(b)(\) shall apply to PHI that is in the possessio of Business Associate and its
I
subcontractors or agents. Business Associate shall retain no copies of the PHI.
(2) In the event that Business Associate determines that returning or destroying the PHI is ~nfeasible, Business Associate
shall provide to Covered Entity, in writing, notification of the conditions that make returry or destruction infeasible, and
Business Associate shall extend the protections of this Addendum to such PHI and limit further uses and disclosures of
such PHI to those purposes that make the return or destruction infeasible, for so long as! Business Associate maintains
such PHI.
'
Miscellaneous.
6.
a.
Amendment. The parties agree to negotiate in good faith an amendment to this Addendum
for the parties to comply with the requirements of HI PAA, as amended from time to time.
unless in writing and signed by duly authorized representatives of both parties.
fr~m time to time as is necessary
Nq amendment shall be effective
'
b.
Survival. The respective rights and obligations of Business Associate under Section 5(b) of this Addendum shall survive
termination of the Agreement.
c.
Interpretation. Any ambiguity in this Addendum shall be resolved in favor of a meaning thai' permits the parties to comply
with HIPAA.
d. No Third Party Beneficiary. Nothing in this Addendum is intended, nor shall be deemed, to c nfer any benefits on any third
party.
:
e.
Severability. If a court of competent jurisdiction finds any term of this Addendum invalid, ille~al or unenforceable, that term
shall be curtailed, limited or deleted, but only to the extent necessary to remove the invalidity~ illegality or unenforceabi lity,
and without in any way affecting or impairing the remaining terms.
I
f.
Counterparts; Facsimiles. This Addendum may be executed in any number of counterparts, ach of which shall be deemed
an original. Facsimile copies hereof shall be deemed to be originals.
g. Entirety. The terms and conditions of this Addendum replace, in their entirety, any existing te ms and conditions between the
parties pertaining to the privacy and security of PHI.
Except as specifically amended above, the terms and conditions of the Agreement shall remain in fi II force and effect.
IN WITNESS WHEREOF. the parties have executed this Addendum through their duly aut orized representatives on the
dates indicated below, to be effective on the date signed by the last party,
Nuance Communications, Inc.
San Joaquin General Hospital
?Jtlj,/ei CaA.oe",re-e
Signature:Danie, Carpenter (Ma 46,
Signature: _ _ _ _ _ _ _ _ _+-_____
Daniel Carpenter
Name: _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
Name: _ _ _ _ _ _ _ _ _ _-+-_ _ _ _ __
y
2014)
Tit
'I e: _
VP_WW
Ops
_ _Sales
___
_ _ _ _ _ _ _ _ __
Title: _ _ _ _ _ _ _ _ _ _---l_ _ _ _ __
Date: _ _ _M_a_y_1_6_,_2_0_1_4_ _ _ _ _ __
Date: _ _ _ _ _ _ _ _ _ _--i_ _ _ _ __
EXHIBIT C
DESIGNATED AFFILIATE LIST
Designated Affiliate
Address
!
I
I
I
I
!
PowerScribe 360 I Rep0l1ing: EX(lm Volume License Addendum
1e last party ("'Addendum
spital ('"Customer"), and
ner also referred to as the
uance and Customer (the
them by the Agreement.
This Addendum for PowerScribe 360 - Exam Volume License ("Addendum"), effective on the datc when signed by
Eflective Date"), is by and between Nuance Communications, Inc. (,-Nuance") and San Joaquin General H
supplements and amends the Terms of Sale by and between Customer and Nuance dated
(herein
"Agreement"), as it applies to the Exam Volume Program (as such term is defined below) listed in an Order between
"Applicable Order"). All capitalized terms not otherwise defined in this Addendum shall have the meanings ascribed t
Nuance and Customer desire to amend the Agreement to provide additional terms of license and pricing for the Ekam Volume Program for
.
Customer, for itself and its Licensed Affiliates, if any
Definitions. For purposes of this Addendum, the following terms shall have the following meanings:
i
'.'Aftlliate" means a business entity that is controlled by Customer. "Control" as used within this detlnitijn means control through
o\\llership ofa majority of shares of stock eligible to vote for members of the Board of Directors, or control by co 1tract.
"Annual Exam Period" means each successive one (I) year period following First Productive Use.
I
"Annual Exam Volume" means the aggregate total number of Exams (i) that Customer (and its Licensed Aftlliqtes and Named Entities, if
any) performed during the prior Annual Exam Pcriod and (ii) with respect to which, the Exam Volume Progr1m was used to generate a
I
Report.
"Annual Exam Volume Report" means a report indicating the Annual Exam Volume for the prior Annual Exam! Period, which report shall
be in the form set forth in Appendix A of this Addendum.
i
i'
•
"Authorized User" is as defined in Section 2 of this Addendum.
I'
"Baseline Exam Volume" means the presumed number of Exams (i) to be performed by Customer (and its Lice1sed Amliates and Named
Entities, if any) during an Annual Exam Period and (ii) with respect to which, the Exam Volume Program is sed to generate a Report;
which Exam count is used to calculate the Exam Volume License Fee. The Baseline Exam Volume is a initially specitled in the
Applicable Order and as subsequently increased pursuant to Section 4.2 of this Addendum (if applicable).
•
I
"Client Component" means the component of the Exam Volume Program that provides functionality on a De\'ic~ to utilize the functionality
in conjunction with accessing or utilizing the Server Component.
"Core" means a smaller processing unit contained within a physical Processor. Some Processors have two
eight, and so on.
i
Cor~s,
some four, some six or
I
•
"Core Limit" means (a) when running the SQL Server component of the Exam Volume Program in a ~YSiCal Operating System
Environment, the maximum number of Cores that a Physical Server running the SQL Server component can hav ; and (b) when running the
SQL Server component of the Exam Volume Program in a Virtual Operating System Environment, the maximUl number of Cores that can
I
be allocated to the Virtual Operating System Environment running an instance of SQL Server.
•
"Device" means a personal computing device as specified in the accompanying Documentation.
I
"Exam" means each individual radiological imaging study (e.g CT of Abdomen, CT of Chest, MRI of the Brain, IFetal ultrasound).
I
"Exam Volume License Fee" means the license fee (including any Add-on Exam Volume Fees) for the righ1 to use the Exam Volume
Program, which fee is based upon the Baseline Exam Volume.
.
"Exam Volume Program" means the P01l'erScribe 360 I Reponing Program specified in the Order as being liccnsFd to Customer pursuant to
the "Exam Volume License", and which Program consists ofa "Server Component" and a "Client Component". I
·
"First Productive Use" means the date installation of the Exam Volume Program is completed and, therefore, the Exam Volume Program is
capable of processing data in Customer's commercial environment.
•
"Instance" An "Instance" of the Server Component of the Exam Volume Program is created by installing the Server Componci1t, or by
duplicating an existing "Instance" References to the Serv'er Component in this Addendum include "Instances" 0 'the Server Comp onent.
•
"Licensed AftiIiate" means each Ami iate that is authorized, subject to the terms and conditions of the Agreemer t, to use the Exam Volume
Program and any Licensed Modules hereunder, which Affiliates are set forth below. IIf applicable, please comI letel
Licensed Aftlliate
Address
"License Conversion" means the Parties' agreement to exchange a license to the Replaced Product for a licens to use the Exam Volume
Program subject to the terms of the Agreement, provided such an option to exchange is made available by Nuanc
"Licensed Module" means any Optional Module specified in an Order.
"Named Entity" means each entity listed in Appendix C.
"Operating System Environment" means a single instance of an operating system and instances of applications, ifany, contlgured to run on
that single operating system instance.
i
"Optional Modules" means Nuance proprietary soft\\'are that is licensed separate and apart from, and SUPPI~ments, PS360 Reporting;
including, but not limited to, PS360 lVorkjlO1I' Orchestrator; PS360 Peer Rerie1\'; PS360 Assisted DiagnOSiS; S360 ,l/obile Radiologist;
and any PS360 Intelfaces (including Data Integration). "Optional Modules" specitically excludes Nuance's As lire Jor PS360 Reporting,
which, too, is licensed separate and apart trom PS360 Reporting, and is governed by terms other than those in thi Addendum.
"Physical Operating System Environment" means an Operating System Environment configured to run directly on a physical hardware
system that uses physical Processors, each occupying a single socket on a system's motherboard in a physical har~\\'arc system.
"Processor" is generally a physical chip that resides in a physical socket of the hardware pmlition and contains on or morc Cores.
"Processor Limit" means (a) when running the SQL Server component of the Exam Volume Program in a hysical Operating System
Environment, the maximum number of Processors that a Physical Server running the SQL Server compone can have; and (b) when
running the SQL Server component of the Exam Volume Program in a Virtual Operating System Environmen the maximum number of
Processors that can be allocated to the Virtual Operating System Environment running an instance of SQL Server
"Replaced Product" means a Nuance software product that Customer previously obtained a license to use (eith r Irom Nuance directly or
from a Nuance authorized reseller); which license is identified in Appendix B, and for which, Customer can shpw proof of entitlement to
such license.
"Report"' means an individual document, such as a medical rcport, or an addendum to a medical report, that is cr¢ated by the Exam Volume
Program.
"Server Component" means the component of the Exam Volume Program that provides services or 11JJ1ction4lity on Customer's server
(physical hardware systems capable of running the Server Component are '"servers" A hardware partition or ~Iade is considered to be a
separate physical hardware system).
"SQL Server" means Microsoft SQL Server software.
"Virtual Operating System Environment"' means an Operating System Environment contigured to run on a virtJal (or otherwise emulated)
hardware system that uses virtual processors, whereby a "virtual processor" is a Processor in a virtual (or oth~rwise emulated) hardware
system. A "virtual processor" is considered to have the same number of threads and Cores as a physical P~ocessor on the underlying
physical hardware system.
.
Grant of Rights. Subject to the terms and conditions of the Agreement (including this Addendum), Nuanc~ hereby grants Customer a
.
limited, non-exclusive, non-transferable, non-sublicensable license to:
2.
(a) install and run, at anyone time, one Instance of the Server Componcnt on one compatible Physical operatifg System Environment or
one Virtual Operating System Environment, whereby, to ·'run an Instance" means to load the Server Componen into memory and execute
one or more of its instructions (once running, an Instance is considered to be running, whether or not its instru ,tions conti nue to execute,
until it is removed from memory). One Instance of the Server Component is only licensed for use with one databpse.
(b) allow Customer's (and any Licensed Affiliate's) employees and contractors (each such employee or contracror, an "Authorized User")
to use the Exam Volume Program solely with respect to Exams performed by Customer, a Licensed Atlliiate (if/my), or a Named Entity (if
any); pro\'ided such use is (i) in a manner commensurate with the Exam Volume Program's intended use (as ptfscribed by the Agreement
and the Documentation), and (ii) solely for Customcr's (and any Licensed Affiliate's or Named Entity's) i~lternal business purposes.
Customer shall not allow any Authorized User to use the Exam Volume Program for (a) the Authorized User's ~\11 personal use, or (b) the
benelit of any third party (excluding Licensed Aftiliates and Named Entities, if any). Customer shall not allOW anyone other than the
!
Authorized Users to use the Exam Volume Program.
(c) allow Authorized Users to use each Licensed Module (if any) in conjunction with the Exam Volume Program~ provided such use is (i) in
a manner commensurate with the Licensed Module's intended use (as prescribed by the Agreement and the Docpmentation), and (ii) solely
for Customer's (and any Licensed Affiliate's or Named Entity's) internal business purposes. Customer shall notlallow any Authorized User
to use any Licensed Module lor (a) the Authorized User's 0\\11 personal use, or (b) the benetlt of any third ,party (excluding Licensed
Atlliiates and Named Entities, if any). Customer shall not allow anyone other than the Authorized Users to use ary Licensed Module.
,
3.
Licensed Affiliates. Customer is responsible lor the performance of each Licensed Aftiliate (if any) an each Authorized User in
connection with its use of the Exam Volume Program and any Licensed Module, and guarantees each Licensed AtlIli' te's and Authorized User's
full and faithlul compliance with the terms of the Agreement. Customer will be liable under the terms of the Agreen ent lor any act or omission
by any Licensed Aftiliate or any Authorized User to the same extent as if Customer itself had taken such acti 1 or made such omission.
Customer will, at its expense, defend and indemnitY Nuance, and hold Nuance harmless, from any (i) claims, actions, suits, or proceedings made
or brought against Nuance by any Licensed Affiliate, Authorized User, or Named Entity (each such claim, action, suit r proceeding, a "Wrongful
Claim"), and (ii) losses, claims, costs, expenses, damages, or liabilities sustained by Nuance arising Irom a Wrongtul laim.
4.
Payments.
4.1 Initial Pavment. In consideration for the Exam Volume Program and Licensed Modules (if any), and ass ciated Equipment, Third
Party Software and Services, provided by Nuance under the Applicable Order, Customer shall pay, as applicable, all of he fees and other charges
(including, but not limited to, all taxes, shipping, Ireight, handling and similar costs) specitied in the Applicable Order (collectively, the "Fees")
as follows:
(a) Customer will pay all Fees for the Exam Volume Program, Licensed Modules (if any), and associated first ycar annual Maintenance
Services, and any associated Professional Services, Training Serviccs, Equipmcnt and Third Party Sotlware (as il dicated in the Applicable
Order), in full, within thirty (30) days of the date of Nuance's invoice
4.2 Add-on Exam Volume: License Fees. If the Annual Exam Volumc cxceeds thc then-current Baseline Ex m Volume by ten percent
(10%) or more in any Annual Exam Period, or if Customer indicates, within the Annual Exam Volumc Report, its dcsi e to incrcase the Baseline
Exam Volume based on Customer's forecast of Annual Exam Volume lor the upcoming Annual Exam Period, then C Istomer shall pay Nuance
additional fees ("Add-on Exam Volume Fccs") for the additional Exam volume that exceeds the then-current Baselin Exam Volume, based on
Nuance's then-current pricing. The additional Exam volume will then be added to the existing Baseline Exam Vol me to establish a revised
Baseline Exam Volume for each successive Annual Exam Period, subject to further increase as provided in this S ction 4.2, and the annual
Maintenance Services fee for subsequent renewal Maintenance Services terms shall be calculated based on such revise Baseline Exam Volume.
Payment will be due and payable to Nuance within thirty (30) days of the date of each invoice.
43 Add-on Exam Volume; Back Maintenance Fees. If the Annual Exam Volume exceeds the Baseline Exa 1 Volume by ten percent
(10%) or more in any Annual Exam Period, and the Exam Volume Program was under Maintenance Services during he reported Annual Exam
Period, then Customer shall pay Nuance the applicable Maintenance Services fee for such additional Exam volume lor he reported Annual Exam
Period. Payment will be due and payable to Nuance within thirty (30) days of the date of each invoice.
I
4.4 Maintenance Services Fees. The Exam Volume License Fce (and the fees for Licensed Modules) does nOf provide for Maintenance
!
Services, which services are charged for separately.
I
5.
Reporting. Within thirty (30) days following each Annual Exam Period, Customer shall provide NUaJfe with an Annual Exam
Volume Report for such Annual Exam Period, in which, Customer shall indicate the applicable Annual Exam Vo ume and the then-current
Baseline Exam Volume for the applicable Annual Exam Period, and the disparity between them. Customer shall p vide a breakdo\\ll of the
reported Annual Exam Volume, as between Customer and each Licensed Amliate and Named Entity (if any). Ea h Annual Exam Volume
Report must be sent by mail, and via email, to the respective mailing and email addresses set forth in the Annual EXaJ Volume Report lorm set
forth in Appendix A, attached hereto, or such other address as Nuance may designate by \\Titten notice. This reportin, requirement is a material
,
element of the Agreement.
6.
License Conversion. [I' the Exam Volume Program is identified on the Applicable Order as being a "Lic¢nse Conversion", then by
Customer installing the Exam Volume Program obtained pursuant to such Applicable Order, Customer's rights~to the Replaced Product
terminates, except that if the Replaced Product was licensed to Customer by a Nuance authorized reseller, then Cust mer's rights to the Exam
Volume Program are subject to Customer first terminating its license rights with respect to the Replaced Product. At the time of installation of
the Exam Volume Program, Customer shall un-install, and return to Nuance or destroy, all copies of the Replaced Pro~uct, which were the basis
.
for Customer's eligibility for the License Conversion, and certifY to Nuance, in \\Titing, that Customer has done so.
7.
Termination.
I
Within thirty (30) days following termination of Customer's rights to the Exam Volume Program, Customer wil provide an Annual Exam
Volume Report in accordance with Section 5 above and pay Nuance any applicable fees in accordance with Sections .2 and 43 above. Neither
the expiration nor termination of the Agreement or the Applicable Order shall afTeet Customer's obligations under ections 3,4, and 7 of this
Addendum.
8.
Optional Modules. Optional Modules are separate and distinct trom the Exam Volume Program, and a though Optional Modules
may ship with the Exam Volume Program, Customer has no right to use any Optional Module unless Customer has urchased and maintains a
valid license to such Optional Module.
9.
Maintenance Services. II~ pursuant to the Order, the Exam Volume Program is to be installed by Nuance, hen Maintenance Services
for the Exam Volume Program, if purchased, will commence upon First Productive Use (or the anniversary thereof if Customer is purchasing
renewal Maintenance Services).
10.
SQL Sen·er. Customer acknowledges that SQL Server is required for the Exam Volume Program to \\ rk, and, as such, Nuance
makes available a version of the Exam Volume Program with a licensed SQL Server component embedded thereil (Customer may opt for a
version of the Exam Volume Program without the licensed SQL Server component if Customer already has, or inte s to acquire, the rights to
SQL Server that provide Customer the requisite right to use such SQL Server with the Exam Volume Program). Nua lce will only provide SQL
Server if Customer orders the version of the Exam Volume Program with the licensed SQL Server component included
10.1 Limitations. If SQL Server is provided as a licensed component of the Exam Volume Program, as indicated in the Order,
Customer shall not exceed (a) the Core Limit with respect to such SQL Server if the SQL Server is version 2012 or be ond; and (b) the Processor
Limit with respect to such SQL Server if the SQL Server is version 2008 R2 or earlier. The Core Limit and the Proc ssor Limit are as indicated
in the Applicable Order.
10.2 Restrictions. If SQL Server is provided as a licensed component of the Exam Volume Program, as indicated in the Order,
Customer shall not unbundle the SQL Server Irom the Exam Volume Program and use it with any other product or ser ice.
II.
Terms of Sale. Customer acknowledges that it has reviewed the Terms of Sale signed and agreed UpOl by Customer and Nuance
("'Terms of Sale").
12.
Savings Clause. Except as modified by this Addendum, the Agreement shall remain in ilill force and eft'e t and shall be enforceable
in accordance with its terms. In the event that the terms of this Addendum contlict with the terms of the Agreement, tl e terms of this Addendum
shall govern.
IN WITNESS WHEREOF, the parties have executed this Addendum through their duly authorized representatives OJ~'the dates indicated below
EACII OF TilE INDIVIDUALS SIGNING TIllS ADDENDUM PERSONALLY REPRESENTS AND WARRANTS THAT TIlE PARTY fOR
WHOM HE OR SHE IS ACTING HAS DULY AUTIlORIZED THE EXECUTION AND PERFORMANCE OF TIlL ADDENDUM.
!
I
:'I:uance CB)qrnul\icatipns, Inc .
.vtV-.leL
~aA .ge"?TeA.
Signature: Daniel Carpenter (MaY~6,
2014)
Daniel Carpenter
Name: _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
Title
Date
VP WW Sales Ops
May16,2014
San Joaquin General Hospital (Customer1
I
Signature: - - - - - - - - - - - - - - t ' - - Name: _ _ _ _ _ _ _ _ _ _ _ _+-___
Title: _ _ _ _ _ _ _ _ _ _ _ _-+_ __
Date: _ _ _ _ _ _ _ _ _ _ _ _-+_ __
Approved as to r-orm
DAVID WGDTEN
Appendix A
(to Addendum tor P01l'erScribe 36() I Reportil1g: Exalll I 'O/lIlIIe License)
Annual Exam Volume Report
Customer Name:
Installation Location:
First Productive Use Date
Licensed Nuance Software: PowerScribe 360 I Reporting
Total Exam Volume: Indicate Annual Exam Volume, Baseline Exam Volume, and the amount the Annual Exam Volume
Volume:
Annual Exam Volume
I
I
I
Baseline Exam Volume
Onr (Under)
over or under the l3aseline Exam
,
I
Exam Volume BreakdO\vl1: Allocate to Customer and each Licensed Affiliate and Named Entity (if any) their respective percent ge of the Annual Exam Volume:
Customer/Licensed Affiliates/Named
Entity
Address
Pe centage of the Annual Exam
Vo ume
Total
Based on the report above, please check the applicable box below
Annual Exam Volume exceeded the Baseline Exam Volume by 10% or more. Customer needs to increase the Baseli!'le Exam Volume and Maintenance
Services in accordance with the Agreement.
Annual Exam Volume did not exceed the Baseline Exam Volume by 10% or more. Nevertheless, Customer wants tq increase the Baseline Exam
Volume and Maintenance Services based on Customer's torecast of Annual Exam Volume tor the upcoming Annual !Exam Period.
Annual Exam Volume did not exceed the Baseline Exam Volume by 10% or more. Customer does not want to increfse the Baseline Exam Volume at
this time.
Authorized Signature
Date
Print Name and Title
Note:
This form must be used tor all Annual Exam Volume Reports.
All Annual Exam Volume Reports must be submitted no later than thirty (30) days lollowing each Annual Exam Period.
Annual Exam Volume Reports should be sent via e-mail to aevreports@;nuance.com and by physical mail to:
Site License Administrator
Nuance Communications Inc.
3984 Pepsi Cola Drin
'\1elbourne, FL 32934
Appendix 13
(to Addendulll for P01l'erScribe 360 I ReporTing: Exam r 'o/lime License)
Replaced Product
New Install
Appendix C
(to Addendum for POll'erScribe 360 I Reportillg: Exam I·ollime License)
Named Entities
~
~,
Page: 1/3
ORDER
NUANCE
This Order is entered into on 17 day of April, 2014
and is governed by the terms and conditions of Nuance's standard Terms of Sale or the Healthc re Master Agreement,
dated as of
2014 by and between Customer and Nuance. Until executed by the Cus orner, this Order shall be
considered a quote for the items set forth below.
CONFIDENTIAL**
Nuance Contact Information
Customer Information
Customer Acct
Quoted:
D90014768
Name
SAN JOAQUIN GE\,ERAL HOSPITAL
Address
500 W HOSPITAL RD
FRENCH CAMP, CA 95231-1499
City
Contact:
I7-APR-2014
Maenpaa, Bruce
Contact Phone:
781-565-5000
Fax Number:
781-565-500 I
Attn:
Contact Phone:
Nuance Internal Use: 99359.AIOA-KMQ835
Nuance Quote Number: 73591. 2
Expires: 16-JUL-20 14
Qty
l\1odel
Promo
Product
Total (USD)
Software
80000
57,600.00
PS360EV-DIS-BOI
PowerScribe 360, Annual Exam Volume License, with Data
Integration Site License, B (A)
PS360AD-OOI
PowerScribe 360 Assisted Diagnosis (A)
15,000.00
PS360PR-:\101
PowerScribe 360 Peer Review QA (Medium
50,000- I 99,999) Exams (A)
15,000.00
PS360SW-F20
PS360 Reporting Server SW, V2.0, Field Install (A)
5,000.00
PS360TS-F20
PS360 Reporting Test SW, V2.0, Field Install (A)
INTDNL360-E\,F
PowerScribe 360, Interface Download, Enhanced,-Field (A)
10,000.00
2,000.00
INTUPL360-ENF
PowerScribe 360, Interface Upload, Enhanced, Field (A)
10,000.00
(Aj Mamtenance as speCIfied 011 Quote
(8) 1st yf Maintenance included at no charge, additional years charged at market rates.
Any other item is not covered under the Nuance Maintenance Contract.
SERVICES
INSTALL6
INSTALLATION FEE
OPTIONI
24x7 Remote Only Maintenance Coverage Plan
19,620.00
PS360P:\1-0100
Project Management Execution & Implementation Services
for a standard deployment (3 to 5 month engagements)
30,000.00
3
PS360TRA-ADl\1-0102
PowerScribe360 Administrative Training Program includes
self-paced online learning, facilitated webinars, and onsite
classroom training in Melbourne, FL.
9,000.00
3
PS360TRA-ADl\1-GLS
PS360 Reporting Administrative Go Live Support
6,000.00
PS360TRA-CONS-STDOPT
PS360 Reporting Standard Application Optimization
Consulting
2,500.00
2
PS360TRA-l\1T-OIOO
PS360 Reporting Editor Online Learning Track
PS360TRA-DATAINT
PS360 Reporting Data Integration
6,540.00
500.00
2,000.00
II'
Page: 2/3
~,
NUANCE
Subtotal
Total (lISD) (Exclusive of Taxes and Delivery)
190,760.00
Ship-To Information
Name
SAN JOAQUIN GENERAL HOSPITAL
Address
500 W HOSPITAL RD
City:
FRENCH CAMP, San Joaquin, CA
95231-1499
Project Information:
Name
Strategic:
SAN JOAQUIN GENERAL HOSPITAL
Shipping Priority:
Regular Ground
Second
ay Air
Priority
ir 1 Next Day
Page: 3/3
~
~«
NUANCE
Additional Terms:
If the Customer does not have a valid Master Agreement with Nuance, then Customer acknowledge
terms of sale published at http://www.nuance.com/company/po(ferms-of-Sale.pdf (for Canadian Cu
http://www.nuance.com/company/po/Can/Terms-of-Sale.pdf) (the "Terms of Sale") and, as a mater
Nuance to accept this Order, agrees that the Terms of Sale will govern the transaction contemplated
respects, and that the Terms of Sale shall not be varied or supplemented by any terms or conditions
the reverse of, or otherwise accompanying a Purchase Order 01' any acknowledgement 01' other for
Nuance,
that it has reviewed the
tomer's
al inducement for
by this Order in all
nserted into, printed on
provided by Customer to
Terms OfSaie (US)
Terms OfSaie (CAN)
**By its receipt of this quote, Customer acknowledges and agrees that the pricing and product confi~uration contained herein
are Confidential in nature, and, as such cannot be shared with any other party, including, but not Ii ited to, any affiliate of
Customer, without Nuance's prior written consent, In addition to Nuance pursuing any other remed es available to it in law or
equity, in the event Customer violates the terms of this provision, this quote shall immediately term nate or, if Customer has
entered into an Agreement with Nuance for the purchase of the above Products and/or Services, the oregoing pricing shall be
null and void and Customer shall immediately pay an amount equal to the list price of the Products nd/or Services less any
amounts paid (or currently owed) to Nuance for such Products and/or Services,
SAN JOAOUIN GENERAL HOSPITAL
Customer
Name
Title
Signature
Date
Email Address
Page 1/3
ORDER
This Order is entered into on 17 day of April, 2014
and is governed by the terms and conditions of Nuance's standard Terms of Sale or the Healthcare Master Agreement,
2014 by and between Customer and Nuance. Until executed by the Cust mer, this Order shall be
dated as of
considered a quote for the items set forth below.
CONFIDENTIAL**
Customer Information
Nuance Contact Information
Customer Acct
D90014768
Name
SA;\! JOAQl!IN GENERAL HOSPITAL
Quoted:
Contact:
Address
500 W HOSPITAL RD
FRENCH CAMP, CA 95231-1499
City:
17-APR-20 14
Maenpaa, Bruce
Contact Phone:
781-565-5000
Fax Number:
781-565-500 I
Attn:
Contact Phone:
Nuance Quote Number: 152996. I
Expires: 16-JUL-20 14
Qty
Model
99359.AIOA-KMQ835
Product
Promo
Total (lISD)
Hardware
PTS0020R-238
PTS4000R-236
Powerscribe 360 System Server, Level 2, DL380 G8 Quad
Core (A)
8,290.00
Powerscribe 360 Interlace Server, DL360 G8 Quad Core
6,460.00
(A)
PTS6000R-236
PTS9000R-236
Powerscribe 360 Speech Utility Server, DL360 GS Quad
Core (A)
7,490.00
Powerscribe 360 Test System Server, DL360 GS Quad Core
7,290.00
(A)
ThirdParty
PS360SS-12-4C- FO 1
PS360 Database2012 Standard SW and Four Core License
Field Install (A)
2,SOO.00
PS360ST -12-4C-FO 1
PS360 Test System Database20 12 Licensing Package w/5
CALs Field Install (A)
1,050.00
(/\) Maintenance as specified on Quote
(8) 1st yr Maintenance included at no charge, additional years charged at market rates
Any other item is not covered under the Nuance Maintenance Contract.
SERVICES
I:\STALL6
INSTALLA TlON FEE
2,002.S0
OPTION3
24x7 Remote wi 24x7 On-Site Maintenance Coverage Plan
7,343.60
Subtotal
Total (USD) (Exclusive of Taxes and Delivery)
42,726.40
Page: 2/3
11''-11,
NUANCE
Ship-To Information
Name
SAN JOAQUIN GENERAL HOSPITAL
Address
500 W HOSPITAL RD
City
fRENCH CAMP, San Joaquin, CA
95231-1 .. 99
Project Information:
Name
Shipping Priority:
SAN JOAQUIN GENERAL HOSPITAL
Strategic:
Regular/ round
Second ay Air
Priority
Third Party Software
Model
Software Description
PS360SS-12-4C- FO I
License, Runtime, SQL2012 SE ISV, Two Core
PS360ST-I2-4C-FOI
License, Runtime, SQL2012 SE ISV, Server + I CAL
PS360ST -12-4C- FO I
License, Runtime, SQL2012 SE ISV, I-CAL
ir / Next Day
......
Page: 3/3
~,
NUANCE
'
1
Additional Terms:
,
If the Customer does not have a valid Master Agreement with Nuance, then Customer aCknowledge that it has reviewed the
terms of sale published at http://www.nuance.com/company/po/Terms-of-Sale.pdf (for Canadian Cu tomer's
http://www.nuance.com/company/po/Can/Terms-of-Sale.pdf) (the "Terms of Sale") and, as a mater al inducement for
Nuance to accept this Order, agrees that the Terms of Sale will govern the transaction contemplatedlby this Order in all
respects, and that the Terms of Sale shall not be varied or supplemented by any terms or conditions ,nserted into, printed on
the reverse of, or otherwise accompanying a Purchase Order or any acknowledgement or other form provided by Customer to
I
Nuance.
Terms Of Sale (US)
Terms Of Sale (CAN)
**By its receipt of this quote, Customer acknowledges and agrees that the pricing and product confi uration contained herein
are Confidential in nature, and, as such cannot be shared with any other party, including, but not Ii ited to, any affiliate of
Customer, without Nuance's prior written consent. In addition to Nuance pursuing any other remed es available to it in law or
equity, in the event Customer violates the terms of this provision, this quote shall immediately terminate or, if Customer has
entered into an Agreement with Nuance for the purchase of the above Products and/or Services, the oregoing pricing shall be
null and void and Customer shall immediately pay an amount equal to the list price of the Products nd/or Services less any
amounts paid (or currently owed) to Nuance for such Products and/or Services.
SAN JOAOUIN GENERAL HOSPITAL
Customer
Name
Title
Signature
Date
Email Address

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