EXHIBIT 3.5
▇▇▇▇▇▇▇▇▇ Agreement
SERVICES AGREEMENT
BETWEEN
GATEWAY ACCESS SOLUTIONS
AND
▇▇▇▇▇▇▇▇▇ SYSTEM SERVICES
▇▇▇▇▇▇▇▇▇ System Services, on behalf of itself and as agent for its affiliated
entities, a not-for-profit Pennsylvania corporation with its principal place of
business in Danville, Pennsylvania ("▇▇▇▇▇▇▇▇▇") and Gateway Access Solutions, a
Nevada corporation with its principal place of business in Danville PA ("GAS")
therefore enter into this agreement dated 7/23, 2003 ("Agreement").
WHEREAS, ▇▇▇▇▇▇▇▇▇ is responsible for obtaining data communications at many
locations in Pennsylvania; and
WHEREAS, such capability must be highly reliable in that it is necessary for
efficient patient care, which makes it necessary for ▇▇▇▇▇▇▇▇▇ to provide
redundant connections; and
WHEREAS, GAS, an Internet Service Provider, is capable of providing highly
reliable data communications service using wireless technology which minimizes
the possibility of simultaneous failure of connections; and
WHEREAS, ▇▇▇▇▇▇▇▇▇ and GAS desire to enter into this Agreement for the provision
of data communication services; and
NOW THEREFORE, in consideration of the mutual covenant contained herein and
intending to be legally bound, the parties agree as follows:
1. DEFINITIONS
"Acceptance" shall mean the later of thirty (30) days after Hand-Off or the
date ▇▇▇▇▇▇▇▇▇ approved the services.
"Customer Premise Equipment (CPE)" shall mean equipment provided by GAS
that is located at ▇▇▇▇▇▇▇▇▇ sites.
"Demarcation Point" shall mean the Ethernet ▇▇▇▇ on the CPE to which
▇▇▇▇▇▇▇▇▇ will connect.
"Hand-Off' shall mean the date on which GAS and ▇▇▇▇▇▇▇▇▇ mutually agree
that a connection can provide Internet connectivity.
"Standby Connection" shall mean a connection that is used for production
application traffic only on an occasional basis such as when another connections
fails.
2. THE SERVICES TO BE PROVIDED
GAS agrees to provide ▇▇▇▇▇▇▇▇▇ with data communications as requested from
time to time by ▇▇▇▇▇▇▇▇▇. Furthermore, ▇▇▇▇▇▇▇▇▇ agrees to permit GAS to
install equipment at ▇▇▇▇▇▇▇▇▇ sites for other GAS customers as requested from
time to time by GAS. The detailed scope of the services will be specifically
described in an addendum, the form of which is attached hereto as Exhibit A
1
2. THE SERVICES TO BE PROVIDED - continued
("Addendum"). The equipment required for each request and the appropriate fees
to be rendered under this Agreement shall be mutually agreed to in advance and
included in the Addendum.
In addition to the foregoing, GAS shall provide all equipment on the
carrier side of the demarcation point (i.e., as required provide an operational
Ethernet connection to ▇▇▇▇▇▇▇▇▇ at the equipment location). GAS shall further
provide ongoing maintenance, repair and support of the equipment to keep it
operational.
▇▇▇▇▇▇▇▇▇ agrees to (i) provide GAS with reasonable access to the equipment
locations for installation and maintenance at mutually-agreed times, (ii)
provide GAS with a reasonable amount of space for indoor equipment in a
reasonably secure and environmentally appropriate location and (iii) provide
power as required for operation of the equipment. GAS agrees to adhere to
▇▇▇▇▇▇▇▇▇'▇ procedures when requiring access to its facilities. On occasion,
▇▇▇▇▇▇▇▇▇ may permit GAS to install a service at a ▇▇▇▇▇▇▇▇▇ Location for
demonstration or test purposes. Such installations shall be bound by the terms
of this Agreement. GAS shall not make or suffer any unlawful, improper, or
offensive use of ▇▇▇▇▇▇▇▇▇ facilities or any other use thereof except as
specified either herein or in the applicable Addendum.
▇▇▇▇▇▇▇▇▇ shall have no obligations to GAS, its customers, or any other
third party when ▇▇▇▇▇▇▇▇▇ permits GAS to install equipment on ▇▇▇▇▇▇▇▇▇
premises and such equipment is used by GAS to provide service to its other
customers. Any and all obligations remain exclusively with GAS. Such an
arrangement provides only for the mounting and/or installation locations and
equipment as approved via an Addendum. In the event that carrier services are
needed at such a location and permitted by the Addendum, GAS will negotiate with
a carrier of its choice to purchase these services, and all costs associated
with the carrier services will be directly billed to GAS by the carrier. GAS may
not sublet any or all of the arrangement between GAS and ▇▇▇▇▇▇▇▇▇ to any other
party. GAS shall retain ownership of any equipment and materials that GAS
purchases and installs at a ▇▇▇▇▇▇▇▇▇ premise. All liabilities and costs
associated with the equipment, materials, maintenance, and installation
(including but not limited to permits, inspections, and insurance) shall remain
solely with GAS and GAS agrees to indemnify and hold harmless ▇▇▇▇▇▇▇▇▇ from all
such liabilities and costs.
3. SERVICE WARRANTIES
GAS warrants and represents that:
o connections provided by GAS to ▇▇▇▇▇▇▇▇▇ will have no common potential
points of failure with connections provided by other carriers from
Demarcation Point to Demarcation Point, with the possible exception of
the CPE power source.
o the average ping times between any two (2) GAS Multi-channel
Multi-point Distribution System (MMDS) connected sites will be less
than 3OmS and the average packet loss between any two (2) GAS MMDS
connected sites will be less than 0.1%.
o it will build and upgrade its network as required to ensure that the
contracted point-to-point bandwidths will be available to ▇▇▇▇▇▇▇▇▇
when needed.
o it will adhere to the same reliability requirements that are expected
from any other carrier.
2
3. SERVICE WARRANTIES - continued
o problems will be promptly and effectively responded to and repaired in
accordance with the requirements set forth in Exhibit B.
o it will have its wireless backbone network with a minimum capacity of
10Mbps operational by October 31, 2003.
o GAS warrants that qualified personnel shall perform the obligations
set forth in this Agreement in a good and workmanlike manner.
4. ASSIGNMENT OF EMPLOYEES
In the event GAS utilizes the services of subcontractors, such
subcontractors shall be considered to be the employees of GAS. ▇▇▇▇▇▇▇▇▇
reserves the right to accept or reject an employee based upon specific or
general skills required and the background and experience of an employee
assigned by GAS. In the event that an employee demonstrates that he or she is
not qualified to perform, or disrupts or interferes with ▇▇▇▇▇▇▇▇▇'▇ business or
employees, ▇▇▇▇▇▇▇▇▇ shall notify GAS, and such employee shall be removed.
▇▇▇▇▇▇▇▇▇ shall be the sole judge as to these matters and need not provide any
reason for requesting removal of the employee. In the event that an employee is
removed, ▇▇▇▇▇▇▇▇▇ shall have the right to request that the employee removed be
replaced with an employee acceptable to ▇▇▇▇▇▇▇▇▇.
GAS employees providing services to ▇▇▇▇▇▇▇▇▇ pursuant this Agreement,
shall at all times during their engagement with ▇▇▇▇▇▇▇▇▇, shall be and remain
employees of GAS and GAS shall be solely responsible for payment of their entire
compensation earned in connection with the subject matter of this Agreement
including employment taxes and expenses and benefits associated with their
employment.
5. CONFIDENTIAL INFORMATION
Confidential information means all information which is disclosed to or
discovered by GAS, including but not limited to that which is disclosed to its
employees which relates to ▇▇▇▇▇▇▇▇▇'▇ past, present, or future research,
development, business activities, financial information, vendor proprietary
information and patient information. GAS shall not actively search out
▇▇▇▇▇▇▇▇▇'▇ confidential information. GAS shall hold all such confidential
information in trust and confidence for ▇▇▇▇▇▇▇▇▇, and warrants that it and its
employees will not, during the performance or after the termination of this
Agreement, disclose to any person, firm, or corporation, or use for its own
business or benefit any information obtained by it while in execution of the
terms and conditions of this Agreement. GAS shall at all times abide by any and
all applicable state and federal laws, rules and regulations regarding the
disclosure of confidential information.
Upon termination of their engagement with ▇▇▇▇▇▇▇▇▇, GAS hereby agrees that
they shall deliver to and leave with ▇▇▇▇▇▇▇▇▇ any and all confidential
information, and all copies thereof then in GAS's possession or under their
control, whether or not prepared by GAS.
GAS acknowledges that any substantial violation of these provisions shall
be a material breach of this Agreement, and that inasmuch as monetary damages
will be inadequate to compensate for such harm, injunctive relief will be an
appropriate remedy to enforce these provisions and GAS hereby consents to such
injunctive relief. This provision shall survive the termination of this
Agreement.
3
6. FEES AND PAYMENT TERMS
The fees for each service are as set forth in the associated Addendum. Any
and all travel costs are included in the fee. All fees begin upon ▇▇▇▇▇▇▇▇▇'▇
Acceptance. Upon the expiration of the term, as identified in the Addendum(s),
the monthly fee may be increased, however, no increase will exceed the increase
in the Consumer Price Index-Urban (CPI-U, U.S. Cities Average for all items)
over the prior period charge.
GAS will provide its best price for all services provided. This price may
be fair market value, the price GAS charges to any other customer or a
discounted price as may be mutually agreed to by the parties, whichever is the
lowest. Furthermore, in the case where Standby Connections are used, the fee
shall also reflect a discount for reduced loading on GAS's network and
interconnections.
For those amounts due to GAS, GAS will submit monthly invoices to the
attention of Fiscal Management and Contracts, at Geisinger System Services, ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Mail Code 17-00, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ for services incurred
during the preceding month. Each invoice will specifically itemize the fees and
expenses for each request. ▇▇▇▇▇▇▇▇▇ shall pay an undisputed invoice within
forty-five (45) days of the receipt of said invoice.
For those amounts due to ▇▇▇▇▇▇▇▇▇, GAS will send payment to ▇▇▇▇▇▇▇▇▇ by
the fifth (5th) of each month to the attention of Fiscal Management and
Contracts, at Geisinger System Services, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Mail Code
17-00, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ for services incurred during the preceding month. Each
payment will specifically itemize the fees and expenses being paid.
▇▇▇▇▇▇▇▇▇ will have the right to withhold payments or portions thereof in
the event GAS fails to perform its obligations in the manner required by this
Agreement. ▇▇▇▇▇▇▇▇▇ will give GAS written notice of such failure to perform and
GAS will have fifteen (15) calendar days to correct the failure. Upon correction
of the failure, ▇▇▇▇▇▇▇▇▇ will process the withheld payments. if the failure is
not corrected, GAS shall be in default of its obligations under this Agreement
and ▇▇▇▇▇▇▇▇▇ has the option to terminate this Agreement. If such termination
should occur, ▇▇▇▇▇▇▇▇▇'▇ only obligation for payment will be for acceptable
services performed up to the notification of failure to perform.
7. TAX
To the extent that any goods or services purchased under this Agreement are
eligible for exemption from Pennsylvania sales and use taxes, ▇▇▇▇▇▇▇▇▇ will
provide an Exemption Certificate to GAS, and GAS agrees to accept such
certificate in lieu of collecting taxes.
8. TERM
When executed by the parties hereto, this Agreement shall become effective
as of the date first above written and shall continue in effect unless
terminated as provided for herein.
9. TERMINATION
▇▇▇▇▇▇▇▇▇ shall have the right to terminate, without cause, at any time,
this Agreement, or any specific Addendum(s) related to those services GAS
provides to ▇▇▇▇▇▇▇▇▇. Such termination will be effective upon receipt of
4
9. TERMINATION - continued
written notice of termination by GAS. ▇▇▇▇▇▇▇▇▇'▇ only obligation to GAS in the
event of any such termination will be the payment to GAS for acceptable services
performed up to the notification of termination.
Either party shall have the right to terminate, without cause, at any time,
any specific Addendum(s) related to those services ▇▇▇▇▇▇▇▇▇ provides to GAS.
Such termination will be effective one hundred and twenty (120) days from
receipt of written notice by the terminating party. GAS's only obligation to
▇▇▇▇▇▇▇▇▇ in the event of any such termination will be the payment to ▇▇▇▇▇▇▇▇▇
for acceptable services provided up to the termination date.
▇▇▇▇▇▇▇▇▇ shall also have the right to terminate, with cause, at any time,
this Agreement or any specific Addendum(s). Termination for cause may include,
but not be limited to, (i) a determination that an arrangement has an adverse
legal effect on ▇▇▇▇▇▇▇▇▇, (ii) GAS equipment interferes with any ▇▇▇▇▇▇▇▇▇
system, (iii) for reasons stated in Section 6. ▇▇▇▇▇▇▇▇▇ will permit GAS a
maximum of one hundred and twenty (120) days to cure a problem related to item
(ii) above. Such correction will be at GAS's sole expense. Notwithstanding the
foregoing, if an interference, in ▇▇▇▇▇▇▇▇▇'▇ sole opinion, threatens patient
safety no cure period is required and GAS will immediately shut down and remove
the GAS equipment which is causing the interference. Termination will be
effective upon receipt of written notice of termination by GAS. In the event of
termination due to items (i) and (ii) above, ▇▇▇▇▇▇▇▇▇'▇ only obligation to GAS
will be the payment to GAS for acceptable services performed up to the
notification of termination, if terminated pursuant to item (iii) above,
▇▇▇▇▇▇▇▇▇'▇ only obligation to GAS, will be the payment to GAS for acceptable
services performed up to the notification of failure to perform.
GAS shall have the right to terminate this Agreement or any specific
Addendum(s) in the event of a material breach by ▇▇▇▇▇▇▇▇▇, which remains
uncured. GAS shall be provide ▇▇▇▇▇▇▇▇▇ written notification of such failure and
one hundred and twenty (120) days from notification to cure the breach.
10. MEDICARE ACCESS TO RECORDS
If the services provided under this Agreement have a cost or value of
$10,000 or more over a twelve month period, both parties agree to preserve and
provide access to each one's contracts, books, documents, and records to the
Comptroller General of the United States, Health and Human Services, and their
duly authorized representatives until the expiration of four years after the
furnishing of services under this Agreement or as may be provided by regulation
from time to time to implement the provisions of the Social Security Act
relating to the determination of reasonable costs as a provider of, or a
subcontractor of, services under the Medicare program.
11. RELEASE OF INFORMATION
The provisions of this Agreement are confidential and protected from
disclosure to any other party unless (i) otherwise provided for in this
Agreement, (ii) disclosure is required by law, or (iii) either Party engages a
third party for purposes such as quality assurance or auditing. Said third party
will be exposed to this Agreement on a "need to know" basis
5
12. INSURANCE
Each party agrees to maintain, at its own cost and expense, insurance
coverage as necessary and reasonable to insure itself and its employees and
agents in connection with the performance of its duties and responsibilities
under this Agreement. Upon request, the parties agree to provide one another
with a Certificate of Insurance evidencing said insurance coveting such
liability with an insurer AM Best rated A or better, and will continue such
insurance in force during the term of this Agreement. Further, both parties
agree to notify the other party immediately if the aggregate coverage as stated
on the Certification of Insurance is impaired more than fifty percent (50%).
GAS shall carry insurance, in necessary and reasonable amounts, on all
facets of its operation related to ▇▇▇▇▇▇▇▇▇, including but not limited to
installation, operation, and maintenance of GAS's equipment. Coverage shall
include loss of life and personal injury for GAS employees and others, as well
as property insurance covering GAS's equipment and possible damage to
▇▇▇▇▇▇▇▇▇'▇ facilities, from all reasonable causes including lightning strike.
13. INDEMNIFICATION
Each party agrees to protect, indemnify, and hold harmless the other party
from and against any and all loss, damage, cost, and expense (including
attorneys' fees) which may be suffered or incurred under this Agreement as a
result of the negligent or intentional acts of the indemnifying party, its
employees, agents, consultants, or subcontractors. Said indemnity is in addition
to any other rights that the indemnified party may have against the indemnifying
party and will survive the termination of this Agreement.
14. PATENT AND COPYRIGHT INDEMNIFICATION
At GAS's expense, should any service become, or in GAS's opinion is likely
to become, the subject of a claim of infringement of a United States copyright
or a United States patent, GAS must either (i) procure for ▇▇▇▇▇▇▇▇▇ the right
to continue using the service, (ii) replace or modify the service with an
equivalent service, or (iii) refund one hundred percent (100%) of the fees paid
for the installation of the service if such an event occurs within one hundred
and eighty (180) calendar from Acceptance.
GAS will defend, at its expense, any action brought against ▇▇▇▇▇▇▇▇▇ to
the extent that it is based on a claim that a service used in accordance with
this Agreement infringes a copyright in the United States or that use of the
product infringes a United States patent. GAS will pay any costs (including
attorney's fees) associated with such action which are attributable to such
claim provided that ▇▇▇▇▇▇▇▇▇ notifies GAS promptly in writing of the claim and
permits GAS full control and sole authority in the defense and/or settlement of
such claim.
15. GOVERNING LAW
This Agreement shall be deemed to have been made and shall be construed and
interpreted in accordance with the laws of the Commonwealth of Pennsylvania and
the parties hereto agree to the jurisdiction of the Commonwealth of
Pennsylvania.
6
16. NOTIFICATION OF INCIDENTS
Each party hereto agrees to notify each other within twenty-four (24) hours
after the discovery of any and all, as applicable, incidents, occurrences,
asserted or unasserted claims, or other causes of action involving the
individual services provided under this Agreement. Upon receipt of discovery by
either Party of any incident, occurrence, claim (either asserted or potential),
notice of lawsuit, or lawsuit involving this Agreement, said Party agrees to
immediately notify the other Party and both Parties agree to provide complete
access, as may be provided under the law, to such records and other relevant
information as may be necessary or desirable to resolve such matters. This
Section shall survive the termination of this Agreement.
17. INDEPENDENT ENTITIES
None of the provisions of this Agreement are intended to create nor shall
be deemed or construed to create any relationship between the parties other than
that of independent entities contracting with each other solely for the purpose
of affecting the provisions of this Agreement. Neither party nor any of its
employees or agents will be construed to be the agent, the employer, or
representative of the other party. Neither party has any express or implied
rights or authority to assume or create any obligation or responsibility on
behalf of or in the name of the other party, except as may otherwise be set
forth in this Agreement.
18. WAIVER
Failure of the parties hereto to complain of any act or omission on the
part of the other party, no matter how long the same may continue, shall not be
deemed to be a waiver by said party of any of its rights hereunder. No waiver by
any of the parties hereto at any time, expressed or implied, of any breach of
any provision of this Agreement shall be deemed a waiver of breach of any other
provision of this Agreement or a consent to any subsequent breach of the same or
any other provision.
19. NOTICES
All notices and communications related to this Agreement must be in writing
and will be deemed given when (i) personally delivered, (ii) sent by facsimile
transmittal, or (iii) upon receipt when deposited with the United States Postal
Service, postage prepaid, addressed as follows or to such other person and/or
address as the Party to receive may designate by notice to the other:
If to Gateway Access Solutions
GAS: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ "▇"
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention:President/CEO
If to ▇▇▇▇▇▇▇▇▇ System Services
Geisinger: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention:Sr. Vice President, Information Technology and CIO
7
20. PARTIAL INVALIDITY/INTERPRETATION
If any term or provision of this Agreement is determined to be invalid or
unenforceable, the remainder of this Agreement will not be affected thereby. The
section headings in this Agreement are solely for reference purposes.
21. CODE OF CONDUCT
As part of ▇▇▇▇▇▇▇▇▇'▇ commitment to maintaining an ethical work
environment, ▇▇▇▇▇▇▇▇▇ has adopted the "▇▇▇▇▇▇▇▇▇ Code of Conduct" (the "Code").
The Code shall be incorporated by reference into this Agreement. The Code
applies to any contractor or contractor's employees and agents performing
services on behalf of ▇▇▇▇▇▇▇▇▇. GAS agrees to be bound by the Code on behalf of
itself, its employees and agents and shall advise such employees and agents that
they will be required to abide by the Code while providing the services required
by this Agreement. Notwithstanding other termination provisions contained
herein, any failure by GAS or GAS employees and agents to comply with the Code
may result in immediate termination of this Agreement by ▇▇▇▇▇▇▇▇▇ without
penalty to ▇▇▇▇▇▇▇▇▇.
22. ASSIGNMENT
This Agreement or any part, articles, or sections thereof may not be
assigned during the term of the Agreement by any of the parties hereto without
the prior written consent of the other party, except (i) as may otherwise be
provided for herein and (ii) each party may at any time assign its rights and
obligations hereunder to a corporation controlled by, in control of, or under
common control of the assigning party provided however, it provides the
non-assigning party with thirty (30) days prior written notice of said
assignment.
23. NONDISCRIMINATION/AFFIRMATIVE ACTION
During the performance of this Agreement, the parties agree to comply with
all Federal, state and local laws respecting discrimination in employment and
nonsegregation of facilities including, but not limited to, requirements set out
at 41 CFR 60-1., 60-250.5 and 60-741.5, as amended from time to time, which
equal opportunity clauses are hereby incorporated by reference. Notification is
hereby given that compliance with these clauses may require the parties to
annually file certain reports (e.g., the EEO-l Report and VETS-l00 Report) with
the Federal government and may require the parties to develop written
Affirmative Action Programs for Women and Minorities, covered Veterans and/or
Handicapped Persons.
24. THIRD PARTIES
This Agreement is solely between the parties hereto and is not intended to
be enforceable by any third parties or to create any express or implied rights
hereunder of any nature whatsoever in any third parties.
25. DRUG AND ALCOHOL POLICY
GAS has been provided with ▇▇▇▇▇▇▇▇▇'▇ "DRUG AND ALCOHOL POLICY SUMMARY FOR
CONTRACTORS" (Exhibit C) and agrees to abide by said policy at all times when
GAS or GAS's employees or agents are performing contracted services on
8
25. DRUG AND ALCOHOL POLICY - continued
▇▇▇▇▇▇▇▇▇'▇ premises. GAS may obtain the policy in its entirety by contacting
▇▇▇▇▇▇▇▇▇'▇ Human Resources department. Notwithstanding other termination
provisions contained herein, any failure by GAS to comply with the policy may
result in immediate termination of this Agreement by ▇▇▇▇▇▇▇▇▇.
26. CERTIFICATION REGARDING DEBARMENT, SUSPENSION, PROPOSED DEBARMENT, AND OTHER
RESPONSIBILITY MATTERS
Both parties certify, to the best of their knowledge and belief, that the
parties and/or any of their principals are not presently debarred, suspended,
proposed for debarment, or declared ineligible for the award of contracts by any
federal agency. Both parties further certify that they are not disqualified for
violations listed in Title 42 of the United States Code. "Principals," for the
purposes of this certification, means officers, directors, owners, partners, and
persons having primary management or supervisory responsibilities within a
business entity (e.g., general manager, plant manager, head of a subsidiary,
division, or business segment, and similar positions). Both parties shall
provide immediate written notice to the other party if, at any time prior to the
execution of this Agreement, either party learns that its certification was
erroneous when submitted or has become erroneous by reason of changed
circumstances. The certification in this provision is a material representation
of fact upon which reliance was placed when entering into this Agreement.
Notwithstanding any provision to the contrary in this Agreement, if it is later
determined that either party knowingly rendered an erroneous certification, in
addition to other remedies available to the other party, the other party may
terminate this Agreement for default. Further each party agrees to conform to
all laws, rules, regulations and policies of governing authorities which have
jurisdiction over the use and transfer of confidential patient data which shall
include, but is not limited to, the policies and regulations of the Health
Insurance Portability and Accountability Act. Each party reserves the right to
reevaluate this Agreement as regulations from the Health Insurance Portability
and Accountability Act become more clearly defined.
27. COMPLIANCE AND SEVERABILITY
During the term of this Agreement, the parties agree each will comply with
any and all laws, rules, regulations, and licensing requirements, that are now
or hereafter promulgated by any local, state, and federal governmental authority
agency that governs or applies to their respective duties and obligations
hereunder and with any and all rules and/or standards that are now or hereafter
promulgated by any accrediting or administrative body that governs or applies to
their respective duties and obligations hereunder. The parties shall comply with
all applicable laws, statues and regulations in carrying out their
responsibilities under this Agreement, including but not limited to, the
requirements of the Department of Health ("DOH'), Joint Commission on the
Accreditation of Healthcare Organizations ("JCAHO") and the National Committee
on Quality Assurance ("NCQA"), as applicable.
In the event any provision of this Agreement is rendered invalid or
unenforceable by an Act of Congress including, but not limited to, the
Anti-Kickback Statute, the Criminal and Civil False Claims Act, the Federal
Self-Referral Statute (▇▇▇▇▇ I or ▇▇▇▇▇ II), the Criminal False Statement Act,
or any other provision relating to the fraud and abuse compliance obligations of
providers participating in the Medicare and/or Medicaid programs, by the
Pennsylvania Legislature, or by any regulation duly promulgated by officers of
the United States or the Commonwealth of Pennsylvania acting in accordance with
9
27. COMPLIANCE AND SEVERABILITY - continued
law, or declared null and void by any court of competent jurisdiction, the
parties shall exercise best efforts to renegotiate the Agreement to comply with
the requirements of the law, amend the Agreement to mutual satisfaction of the
parties and in accordance with the other provisions contained in this Agreement.
If the parties fail to reach such an accommodation after ninety (90) days
following a written request by either of the parties to discuss such an
accommodation, then either may terminate this Agreement upon thirty (30) days
written notice, without further obligation or penalty, financial or otherwise,
to the other party.
28. CONFIDENTIALITY OF PROTECTED HEALTH INFORMATION/HIPAA.
GAS acknowledges that ▇▇▇▇▇▇▇▇▇ may create or access protected health
information ("PHI") as defined in 45 CFR 164.501. GAS agrees to advise its
employees and agents that, should such employees and/or agents be incidentally
exposed to or incidentally access such PHI, such employees and/or agents must
maintain such PHI in strictest confidence. This provision shall survive
termination of this Agreement.
29. PROMOTIONAL MATERIALS
Each party agrees not to use the name, trade ▇▇▇▇, service ▇▇▇▇, or design
registered to the other party or its affiliates in any publicity, promotional,
or advertising material, unless review and written approval of the intended use
is obtained from the other party prior to the release of any such material. Said
approval will not be unreasonably withheld by either party.
30. VIRUS PROTECTION
GAS warrants that it will use industry supplied anti-virus software in the
performance of its duties hereunder. If the event, ▇▇▇▇▇▇▇▇▇ receives a virus
from GAS, GAS will reimburse ▇▇▇▇▇▇▇▇▇ for the cost of virus clean-up at a rate
of fifty-five dollars ($55) an hour.
31. ENTIRE AGREEMENT/AMENDMENT/MULTIPLE ORIGINALS
This Agreement, together with any attachments or exhibits, sets forth the
entire Agreement between the parties with respect to the subject matter hereof
Any prior purchase orders, agreements, promises, negotiations or
representations, whether oral or written, not expressly set forth in this
Agreement are of no force or effect. This Agreement may not be amended except by
a writing signed by both parties. This Agreement shall be executed in multiple
originals, one for each of the parties hereto.
IN WITNESS WHEREOF, the parties hereto have set their hands as of the day and
the year first above written.
GATEWAY ACCESS SOLUTIONS GEISINGER SYSTEM SERVICES
SIGNATURE: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ SIGNATURE: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------- ------------------------
NAME: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ NAME: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
TITLE: President/CEO TITLE: Agent
DATE: 7/18/2003 DATE: 7/23/03
10
EXHIBIT A
ADDENDUM
TO THE
SERVICES AGREEMENT
BETWEEN
GATEWAY ACCESS SOLUTIONS AND GEISINGER SYSTEM SERVICES
DATED 7/23,2003
Gateway Access Solutions ("GAS") and ▇▇▇▇▇▇▇▇▇ System Services, on behalf of
itself and as agent for its affiliated entities ("Geisinger") hereby agree that
the Services Agreement dated 7/23, 2003, is amended as follows:
Additional services will be provided as specified herein.
Estimated Installation Date:
Estimated Installation Completion Date:
Description of Work:
Fees:
Term of Fees:
Service Criticality:
Additional terms:
Except as otherwise herein specifically noted or modified, all terms and
conditions of the Professional Services Agreement shall remain in full force and
effect.
GATEWAY ACCESS SOLUTIONS GEISINGER SYSTEM SERVICES
SIGNATURE: /s/ ▇▇▇▇▇▇ ▇. Nester_ SIGNATURE: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------- ------------------------
NAME: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ NAME: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
TITLE: President/CEO TITLE: Agent
DATE: 7/18/2003 DATE: 7/23/03
11
EXHIBIT B
SUPPORT RESPONSE TIME
1. Definitions.
1. Initial Return Call. "Initial Return Call" means the first call made to
Geisinger after Geisinger has requested assistance. The purpose of this call is
to determine the nature of the problem.
2. Response Time. "Response Time" means the elapsed time from receipt of a
service call from Geisinger to the time the Initial Return call is made to
Geisinger.
3. Critical. "Critical" refers to a condition that is stopping production
use of a connection, with no alternate method of connectivity, and end users are
prevented from accessing functions or data.
4. Serious. "Serious" refers to a condition that is adversely affecting
▇▇▇▇▇▇▇▇▇'▇ connectivity, but backup connectivity is available.
5. Minor. "Minor" refers to situations where there is a problem with a
service but the service would not be in active use or the impact of the problem
is insignificant.
II. Response Time.
1. Critical Conditions. Critical Conditions will be worked at the highest
priority to provide the fastest possible resolution. Response to a Critical
Condition incoming call will typically be within one (1) hour and will not
exceed four (4) hours. For Critical Conditions, GAS will make every reasonable
effort to correct the Condition until the problem is successfully resolved. In
the event that GAS is unable to resolve a Critical Condition within eight (8)
hours of notification by Geisinger, GAS will issue a credit in the amount of ten
percent (10%) of the monthly fee for every hour beyond the initial eight (8)
hours, up to a maximum of eighteen (18) hours. Thereafter, Geisinger will
receive an additional credit in the amount of one (1) monthly fee for every
seventy-two (72) hour period beyond the initial eighteen (18) hours that an
original Critical Condition remains unresolved, up to a maximum credit of twelve
(12) months of the monthly fee.
2. Serious Conditions. GAS will use reasonable efforts to correct Serious
Conditions within two (2) working days of receipt of the request for assistance.
In the event that GAS determines that a Serious Condition will take longer than
two (2) working days, GAS will notify Geisinger in writing with a plan of action
to correct the Serious Condition in a timely manner. If after ten (10) days from
notification of a Serious Condition, GAS has not resolved the Serious Condition,
the Serious Condition will automatically be converted to Critical Condition
status. The penalty under this condition is limited to a credit of one (1)
monthly fee.
3. Minor Conditions. Minor problems may be queued with routine priority. If
a minor problem is not corrected within three (3) working days. it will
automatically be escalated to Serious Condition status.
12
EXHIBIT C
DRUG AND ALCOHOL POLICY SUMMARY FOR CONTRACTORS
As part of ▇▇▇▇▇▇▇▇▇'▇ commitment to maintaining a drug free workplace,
Geisinger has adopted a zero tolerance drug and alcohol policy which applies to
any contractor performing services on behalf of Geisinger while on ▇▇▇▇▇▇▇▇▇'▇
property. ▇▇▇▇▇▇▇▇▇'▇ contractors shall not use, possess, transport, promote or
sell alcohol, any drug or drug paraphernalia when performing work for Geisinger
while on ▇▇▇▇▇▇▇▇▇'▇ property (which includes being in or operating personal
vehicles in ▇▇▇▇▇▇▇▇▇'▇ parking lots). Copies of the complete policy are
available for reference from ▇▇▇▇▇▇▇▇▇'▇ Human Resources department.
13
ADDENDUM I
TO THE SERVICES AGREEMENT
BETWEEN
GATEWAY ACCESS SOLUTIONS AND GEIS1NGER SYSTEM SERVICES
DATED 7/23, ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Solutions (`GAS") and ▇▇▇▇▇▇▇▇▇ System Services, on behalf
of itself and as agent for its affiliated entities ("Geisinger") hereby agree
that the Services Agreement dated 7/23-, 2003, is amended as follows:
Additional services will be provided as specified herein.
Estimated Installation Date: July 18, 2003
Estimated Installation
Completion Date: July 18, 2003
Description of Work:GAS will provide a Standby Connection for Internet
connectivity via MMDS equipment at Geisinger approved
locations at Geisinger Wyoming Valley. The service will be
capable of a sustained 3Mbps rate to other sites on GAS's
backbone network. Geisinger will also use this connection
for downloads from specific IT vendors. In addition,
Geisinger may use this connection as a backup for a primary
connection and for the purpose of tunneling and routing
protocol traffic necessary to monitor the status of the
connection.
Fees: Installation fee: $250 Monthly fee: $500
Term of Fees: The fees stated in this Addendum shall expire on June 30,
2006. Thereafter, the fees will automatically increase for
additional one (1) year terms as permitted in Section 6 of
the Agreement.
Service Criticality:Problems associated with this service will be considered a
Serious Condition unless Geisinger is simultaneously having
problems with other carriers at GWV, in which case it will
be considered a Critical Condition will be granted.
Additional terms:
Except as otherwise herein specifically noted or modified, all terms and
conditions of the Professional Services Agreement shall remain in full force and
effect.
GATEWAY ACCESS SOLUTIONS GEISINGER SYSTEM SERVICES
SIGNATURE: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ SIGNATURE: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------- -------------------------
NAME: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ NAME: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
TITLE: President/CEO TITLE: Agent
DATE: 7/18/2003 DATE: 7/23/03-
14
ADDENDUM II
TO THE SERVICES AGREEMENT
BETWEEN
GATEWAY ACCESS SOLUTIONS AND GEISINGER SYSTEM SERVICES
DATED 7/23, ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Solutions ("GAS") and Geisinger System Services, on behalf of
itself and as agent for its affiliated entities ("Geisinger") hereby agree that
the Services Agreement dated 7/23-, 2003, is amended as follows:
Additional services will be provided as specified herein.
Estimated Installation Date: July 31, 2003
Estimated Installation
Completion Date: July 31, 2003
Description of Work:GAS will provide Internet connectivity for Geisinger via
MMDS equipment at Geisinger approved locations at ▇▇▇▇▇▇▇▇▇
Medical Center. The service will be capable of a sustained
3Mbps rate to other sites on GAS's backbone network.
Geisinger will normally use this connection for active
Internet connectivity and Standby Connections to other
Geisinger sites with GAS connectivity.
Fees: Installation fee: $250 Monthly fee: $875
Term of Fees: The fees stated in this Addendum shall expire on June 30,
2006. Thereafter, the fees will automatically increase for
additional one (1) year terms as permitted in Section 6 of
the Agreement.
Service Criticality:Problems associated with this service will be considered a
Serious Condition unless Geisinger is simultaneously having
problems with other Internet Service Providers, in which
case it will be considered a Critical Condition.
Additional terms:
Except as otherwise herein specifically noted or modified, shall remain in full
force and effect.
GATEWAY ACCESS SOLUTIONS ▇▇▇▇▇▇▇▇▇ SYSTEM SERVICES
SIGNATURE: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ SIGNATURE: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------- -------------------------
NAME: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ NAME: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
TITLE: President/CEO TITLE: Agent
DATE: 7/18/2003 DATE: 7/23/03
15
ADDENDUM III
TO THE SERVICES AGREEMENT
BETWEEN
GATEWAY ACCESS SOLUTIONS AND ▇▇▇▇▇▇▇▇▇ SYSTEM SERVICES
DATED 7/23, ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Solutions ("GAS") and ▇▇▇▇▇▇▇▇▇ System Services, on behalf of
itself and as agent for its affiliated entities ("Geisinger") hereby agree that
the Services Agreement dated 7/23, 2003, is amended as follows:
Additional services will be provided as specified herein.
Estimated Installation Date: July 18, 2003
Estimated Installation
Completion Date: July 18, 2003
Description of Work:GAS will provide Standby Connection Internet connectivity
for ▇▇▇▇▇▇▇▇▇ via MMDS equipment at ▇▇▇▇▇▇▇▇▇ approved
locations at the Valley Surgery Center, ▇▇▇▇▇▇-▇▇▇▇▇, PA.
The service will be capable of a sustained 500Kbps rate to
other sites on GAS's backbone network. In addition,
Geisinger may use this connection as a backup for a primary
connection and for the purpose of tunneling and routing
protocol traffic necessary to monitor the status of the
connection.
Fees: Installation fee: $250 Monthly fee: $75
Term of Fees: The fees stated in this Addendum shall expire on June 30,
2006. Thereafter, the fees will automatically increase for
additional one (1) year terms as permitted in Section 6 of
the Agreement.
Service Criticality:Problems associated with this service will considered a
Minor Condition unless Geisinger is simultaneously having
problems with the main connection to the site, in which case
it will be considered a Critical Condition.
Additional terms:
Except as otherwise herein specifically noted or modified,
all terms and conditions of the Professional Services
Agreement shall remain in full force and effect.
GATEWAY ACCESS SOLUTIONS ▇▇▇▇▇▇▇▇▇ SYSTEM SERVICES
SIGNATURE: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ SIGNATURE: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------ -------------------------
NAME: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ NAME: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
TITLE: President/CEO TITLE: Agent
DATE: -7/18/2003- DATE: -7/23/03-
16
ADDENDUM IV
TO THE SERVICES AGREEMENT
BETWEEN
GATEWAY ACCESS SOLUTIONS AND GEISINGER SYSTEM SERVICES
DATED 7/23, ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Solutions ("GAS") and Geisinger System
Services, on behalf of itself and as agent for its
affiliated entities ("Geisinger") hereby agree that the
Services Agreement dated 7/23-, 2003, is amended as follows:
Additional services will be provided as specified herein.
Estimated Installation Date: July 18, 2003
Estimated Installation
Completion Date: July 18, 2003
Description of Work:Geisinger will permit GAS to install equipment at Geisinger
approved locations at ▇▇▇▇▇▇▇▇▇ Medical Center to provide
service to other GAS customers.
Approved installations include:
- Two (2) antenna assemblies up to 24" high by 24" wide on
the east wall of the elevator penthouse of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Clinic.
- Two (2) antenna assemblies up to 36" high on
Geisinger-approved roof pedestals.
- Passage of cables through an existing roof penetration to
an existing communications closet on the floor below.
- Radio and related equipment associated with the four (4)
antennas and supporting network equipment in a
fully-enclosed locked cabinet provided by GAS. Such items to
be placed in a communications closet.
Demarcation and extension of up to four (4) T 1s to the communication closet.
Fees: Installation fee: $0 Monthly fee: $400
Term of Fees: The fees stated in this Addendum shall expire on June 30,
2007. Thereafter, the fees will automatically increase for
additional one (1) year terms as permitted in Section 6 of
the Agreement.
Service Criticality:
Additional terms:
Except as otherwise herein specifically noted or modified,
all terms and conditions of the Professional Services
Agreement shall remain in full force and effect.
GATEWAY ACCESS SOLUTIONS ▇▇▇▇▇▇▇▇▇ SYSTEM SERVICES
SIGNATURE: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ SIGNATURE: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------- -------------------------
NAME: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ NAME: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
TITLE: President/CEO TITLE: Agent
DATE: -7/18/2003- DATE: -7/23/03-
17
ADDENDUM V
TO THE SERVICES AGREEMENT
BETWEEN
GATEWAY ACCESS SOLUTIONS AND GEISINGER SYSTEM SERVICES
DATED 7/23, ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Solutions ("GAS") and ▇▇▇▇▇▇▇▇▇ System Services, on behalf of
itself and as agent for its affiliated entities ("Geisinger") hereby agree that
the Services Agreement dated 7/23, 2003, is amended as follows:
Additional services will be provided as specified herein.
Estimated Installation Date: July 31, 2003
Estimated Installation
Completion Date: July 31, 2003
Description of Work:Geisinger will permit GAS to install equipment at Geisinger
approved locations at ▇▇▇▇▇▇▇▇▇ Medical Center to provide
service to other GAS customers.
Approved installations include:
- Two (2) antenna assemblies up to 24" high by 24" wide on
the roof of the Geisinger Office Building.
- Passage of cables through an existing roof penetration to
an existing communications closet on the floor below.
- Radio and related equipment associated with the two (2)
antennas and supporting network equipment in a
fully-enclosed locked cabinet provided by GAS. Such items to
be placed in a communications closet.
Fees: Installation fee:$0 Monthly fee: $200
Term of Fees: The fees stated in this Addendum shall expire on June 30,
2007. Thereafter, the fees will automatically increase for
additional one (1) year terms as permitted in Section 6 of
the Agreement.
Service Criticality:
Additional terms:
Except as otherwise herein specifically noted or modified,
all terms and conditions of the Professional Services
Agreement shall remain in full force and effect.
GATEWAY ACCESS SOLUTIONS GEISINGER SYSTEM SERVICES
SIGNATURE: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ SIGNATURE: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------- -------------------------
NAME: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ NAME: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
TITLE: President/CEO TITLE: Agent
DATE: -7/18/2003- DATE: -7/23/03-
18
