HomeMy WebLinkAboutContract 52032 CITY SECRETART
CONTRACT NO.2-Q 212L-,
RECEIVED
MAR 1 ? 2019
NON DISCLOSURE AGREEMENT
CITY OF FORT WORTH
CITY SECRETARY
This NON-DISCLOSURE AGREEMENT ("Agreement") is entered into by and between City of Fort Worth
("Employer"), International Business Machines Corporation ("IBM"), as merger successor to Truven
Health Analytics LLC ("Truven"), Holmes, Murphy and Associates, LLC. for itself and its affiliated
companies ("Consultant"), and United HealthCare Services, Inc., for itself and its affiliated companies
("United") and will be effective on July 25, 2018. Employer, IBM, Consultant, and United may individually
be referred to herein as a "Party" and may jointly be referred to together as the "Parties." These Parties
acknowledge and agree as follows:
A. Purpose: Employer and United have entered into or will enter into an administrative services
agreement under which United provides claims administration and other services for Employer's
employee welfare benefit plan ("Plan"). Employer has retained Consultant to provide claims analyses
using data covering Employer's population and programs including the creation of a multi-employer data
warehouse ("Services"). Consultant has subcontracted with IBM to provide certain healthcare decision
support systems and services, including an integrated dataset ("IBM Services"), which will be used by
Consultant and Employer to evaluate, analyze and manage Employers healthcare benefits and costs.
B. Data: Employer has requested that United make certain specified claim, encounter and/or other
information available to IBM to enable IBM to perform its IBM Services, which claim information will
include, without limitation, personal health information, employee names, social security numbers, dates
of service, medical and industry standard service coding and dollar amounts of claims (collectively "the
Data"). The Data contains proprietary business information of United and protected health information as
defined in the Health Insurance Portability and Accountability Act of 1996 ("HIPAA"), and is considered
confidential information. For further clarification, proprietary business information of United shall include,
but not necessarily be limited to a combination of fields which may reveal United's contract
reimbursement terms, provider or procedure level rates, discounts or allowed/covered amounts, or a
combination of fields that allow derivations thereof, capitation, bundled payments and/or contracted
bundles, including episodes of care and total cost of care. In general, the contract rate with a provider is
proprietary information regardless of how the arrangement is structured. In accessing the IBM Services,
Consultant will have access to components of the Data that are also valuable, confidential, proprietary, or
trade secret and also contain confidential health information as defined under 45 C.F.R. Part 160. United
has agreed to disclose this Data subject to the terms of this Agreement.
In addition to the Data, as used in this Agreement, the term "confidential information" means the
confidential information of United provided to IBM or Consultant, irrespective of whether in oral, written or
electronic form; which may include, but is not limited to: algorithms, technical and operational information,
policies and procedures, know-how, proposals, ideas, designs, techniques, programs, customer lists,
marketing plans, presentations, processes and systems (online or otherwise).
Data or confidential information shall not include information: (1) generally available to the public prior to
or during the time of the services contemplated by this Agreement through authorized disclosure; or (2)
obtained from a Third Party (defined as any entity not a Party to this Agreement) who is under no
obligation to United not to disclose such information; or (3) that is independently developed by either IBM
or Consultant without reference to Data or confidential information; or (4) that is already known by or
available to either IBM or Consultant prior to the date of this Agreement and with respect to which
Consultant or IBM does not have an obligation of confidentiality.
Data or confidential information that is required to be disclosed by law, whether under an order of a court,
government tribunal, or other legal process may be disclosed to the extent IBM or Consultant is required
by law to disclose the Data (i.e. by subpoena or other legal process). IBM or Consultant will promptly give
prior notice of subpoena or other legal process (to the extent permitted by law) to United so that United
may seek a protective order or other appropriate remedy at United's sole cost and expense. Only that
portion of the Data that is required by the subpoena or other legal process will be provided.
Data disclosed by United to IBM in connection with the IBM Services, and Data accessed by Consultant
in connection with the Services, shall be used by IBM and Consultant, respectively, only as permi%td by
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this Agreement. The Parties agree that United has the right to review the terms of this Agreement at least
once every year to ensure that the terms of data sharing do not conflict with United's internal data release
policies, which may change from time to time, and the Parties will reasc nably work to address any issues.
United represents that United's agreements with its network of health care providers ("Provider
Agreements") include restrictions on United's disclosure of provider-specific pricing and discount
information to any third parties, including, but not limited to vendors and, as such, Data provided to IBM
and Consultant under this Agreement will be consistent with the Provider Agreements.
C. Data Content, Format and Delivery: in accordance with the terms and conditions of this Agreement,
United shall provide the Data to iBM in mutually agreed upon content, format and delivery mode.
Consultant will have access to the Data provided to IBM through the Advantage Suite ad hoc reporting
application, subject to the restrictions in this Agreement. Employer will only receive its own Plan's
aggregated data from Consultant and/or IBM consistent with Section D(:3)(li).
D. Permitted Uses and Limitations
(1) IBM General Use and Limitations: iBM agrees: (1) the Data made available by United to IBM
will be used only for the purpose of performing the IBM Services in order to assist Consultant in providing
Services to the Employer; as such IBM will only store the Data in the databases that serve that purpose
("Databases"), which will be used and accessed solely for purposes of the Services under this Agreement
and (2) the Data made available to Consultant through the IBM Services will be a limited subset of the
Data United provides to iBM, which is the minimum amount necessary for Consultant to perform its
Services; and (3) it shall comply with all applicable laws and regulation:, governing the use and disclosure
of the Data, Including but not limited to the applicable privacy and security requirements of the HIPAA and
the elements of minimum necessary outlined under HIPAA (as amended) shall also be applied to United
proprietary information.
IBM may not exploit, recreate, decompose, disassemble, reverse engineer, translate the Data, or,
except to the extent contemplated by the Parties for the purposes of the Services or IBM Services under
this Agreement, use, modify, de-identify, copy, duplicate, create derivative works, or add the Data to a
database. IBM also shall not use the Data for creating, operating or contributing to the development of
any cost or price transparency tool program that would enable plan members to obtain comparative cost
and pricing information across providers in a service area for episodes of care, treatments and
procedures, or disclose Data to another person or entity (except as expressly permitted in this
Agreement) or permitting any other person or entity to disclose such Data regardless of whether such
disclosure is done so in such a manner that would identify United, unl,:rss otherwise agreed to in writing
by United. It shall unless expressly agreed to in this Agreement or otr erwise by United, limit use of the
Data only to its authorized employees and subcontractors, and :employees of subcontractors or
employees of current affiliates, as of the effective date of this Agreement, who have a need to know for
purposes of the Services and who are bound by as strict of confidentially standards as set forth herein.
IBM shall maintain commercially reasonable administrative, physlce![ and technical safeguards that
reasonably and appropriately protect the confidentiality, integrity, and availability of electronic PHI; IBM
shall comply in all material respects with laws and regulations governing the use and disclosure of
confidential information and the Data that are applicable to it in its role as a data vendor; it shall use and
require its employees and agents to use, at least the same degree of care to protect the Data and
confidential information as is used with IBM's own proprietary and confidential information. iBM agrees
United's proprietary Data related to allowable or discount amounts or derivatives of cannot be used for
the purposes of building networks including (but not limited to) Accountable Care Organizations (ACOS),
Centers of Excellence (COEs) provider contracts or other network strategies. IBM represents and
warrants in providing the Services and IBM Services to Employer, IBM shall not disclose to Employer,
directly or indirectly through the Advantage Suite tool, or any other tools or means any discount-related
data fields, discounts or negotiated payment arrangements between United (and/or one or more of its
third party vendors) and a specific provider or pharmacy (collectively"Provider") in a manner which could
enable Employer to access the discounts or negotiated payment arrangements attributed to an
identifiable Provider, except as permitted under Section D.(3)il. IBNI shall, before using Data for plan
design or network strategies (including, but not limited to tiering and s:eerage strategies and Centers of
Excellence) inform and consult with United to ensure United's ability tc support the strategy and desired
outcomes. Under no circumstances shall proprietary information related to allowable, contracted or
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discount amounts be used for competing network or benefit strategies related to network that includes,
but is not limited to, the development, design, or implementation of networks, Centers of Excellence
(COEs) or Accountable Care Organizations (ACOS), and the development of or entering into provider
contracts (individual or group) or other network or benefit strategies such as narrow networks or tiered
benefits, and tiering and steerage strategies that impact Providers.
IBM shall not disclose Data to other bidders in a Request for Proposal ("RFP") or Request for Information
("RFI"), or other similar situation without the prior written consent of United.
(2) Consultant General Use and Limitations: Consultant agrees: (1), it shall not use any Data
(deemed to include, but not be limited to, exploiting, recreating, modifying, decompiling, disassembling,
reverse engineering, translating, or, except as contemplated by the Parties for the purposes of the
Services under this Agreement, using, copying, duplicating, creating derivative works, or adding to a
database), nor shall Consultant disclose Data to a Third Party or permit any other Third Party to do so,
without the express written consent of United except as otherwise outlined in Section D.3.; (2) it shall
unless expressly agreed to in this Agreement or otherwise by United, limit use of the Data and
confidential information only to its authorized employees (deemed to include employees as well as
individuals who are agents or independent contractors of Consultant or its affiliates) who have a need to
know for purposes of the Services and who are bound by as strict of confidentiality standards as set forth
herein, provided that Consultant may share Data with its respective auditors and legal counsel, subject to
the confidentiality obligations herein; (3) it shall maintain commercially reasonable administrative, physical
and technical safeguards that reasonably and appropriately protect the confidentiality, integrity, and
availability of electronic PHI; (4) it shall comply in all material respects with laws and regulations
governing the use and disclosure of confidential information and the Data accessed from IBM that are
applicable to Consultant in its role as a Services provider; (5) it shall use and require its employees to
use, at least the same degree of care to protect the Data and confidential information as is used with
Consultant's own proprietary and confidential information; (6) shall not use the Data for the creation,
operation or contribution to the development of any cost or price transparency tool program that would
enable Plan members to obtain comparative cost and pricing information across providers in a service
area for episodes of care, treatments and procedures; (7) shall not disclose Data to other bidders in a
Request for Proposal ("RFP") or Request for Information ("RFI"), or other similar situation; and (8)
specifically, United's proprietary Data related to allowable or discount amounts or derivatives of cannot be
used for the purposes of building networks including (but not limited to) Accountable Care Organizations
(ACOs), Centers of Excellence (COEs) provider contracts or other network development. Consultant
represents and warrants in providing Services to Employer, Consultant shall not disclose to Employer,
directly or indirectly through the Advantage Suite tool, or any other tools or means any discount-related
data fields, discounts or negotiated payment arrangements between United (and/or one or more of its
third party vendors) and a specific provider or pharmacy (collectively"Provider") in a manner which could
enable Employer to access the discounts or negotiated payment arrangements attributed to an
identifiable Provider, except as permitted under Section D.(3)ii. Specifically, Consultant agrees that it shall
not use the Data to compare United's individual providers to reveal our negotiated rates with providers or
to create, develop, design, implement networks, including but not limited to premium, narrow or tiered
networks. Furthermore, Consultant is prohibited from verifying actual discounts achieved against actual
performance or trend guarantees under the administrative services agreement. Consultant shall, before
using Data for plan design or network strategies (including, but not limited to tiering and steerage
strategies and Centers of Excellence), inform and consult with United to ensure United's ability to support
the strategy and desired outcomes. Under no circumstances shall Data related to allowable, contracted or
discount amounts be used for competing network or benefit strategies related to network that includes,
but is not limited to, the development, design, or implementation of networks, Centers of Excellence
(COEs) or Accountable Care Organizations (ACOs), and the development of or entering into provider
contracts (individual or group) or other network or benefit strategies such as narrow networks or tiered
benefits, and tiering and steerage strategies that impact Providers. .
Furthermore, Consultant agrees that if an issue specific to United arises in any trend analysis specific to
United, Consultant and United will work together in good faith to resolve any disputes in methodology.
Consultant will also share a copy of the resulting report annually with United, provided that such resulting
report will only include the United discount metric.
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(3)Specific Services Use and Limitations
(i) Benchmarking - Subject to the terms of this Agreement and as approved by Employer,
Consultant and IBM may only use Data in a benchmark database in a limited format for comparison
purposes. IBM and Consultant represent and warrant that any benchmarking Database will only contain
de-identified Data (i.e., sufficiently combined so it cannot reasonably uniquely identify, either alone or in
collaboration with other information: carrier, a Provider, the Employer, or any network, or any negotiated
payment (including discount, allowed/covered amount, or derivations thereof) between United and a
specific Provider or employer). Any benchmarking Database containing Data, or information derived
from the benchmarking tool containing Data, may not be sold or distributed to a Third Party, and shall be
restricted as follows: (a)shall only be used by, or for the benefit of, Consultant or IBM for Services or IBM
Services to Employer, (b) may be used by Consultant in providing consulting services to non-UHC
employers, so long as the terms and restrictions regarding Data use for benchmarking set out in this
Agreement apply to all such Data use and benchmarking Databases; (c) may be used for similar
use/purposes by another entity as approved by United in writing when such entity has a current, executed
non-disclosure agreement with United which sets forth that entity's uses of Data as approved by United
("Authorized Entity"), or (d) may be used by an entity in secondary work funded by the federal
government or for use by an entity under grant research funded by government or private foundations
provided Consultant and IBM notify United of such projects upon United's reasonable request, and agree
to use reasonable efforts to restrict such Data, or information derNed from the benchmarking tool
using/incorporating Data from inclusion in any Freedom of Information Act (FOIA) response required by
the recipient and provide immediate notice and an opportunity to United to respond to any FOIA request
where United Data was provided. Except as specifically enumerated in the previous sentence, any
benchmarking Database containing Data, or information derived from the benchmarking tool containing
Data, may not be licensed, sold or otherwise provided, to any other entity ("Unauthorized Entity"). The
fact that Data may be used by Consultant in providing consulting services to non-UHC employers, shall
be treated as confidential and shall not be shared with or disclosed to any entity not a Party to the
Agreement without prior written approval from the other Parties; provided, however, that a Party may
disclose such information to its legal counsel without obtaining such consent. On or before September
30, 2017, all Data and any other claims information provided to Consultant and/or IBM by United pursuant
to this Agreement shall no longer be incorporated into any benchmarking tool, Data or Databases
available to Unauthorized Entities. The Parties agree that the benchmarking Database used in IBM
Services must remain substantially similar with respect to content, form, reporting metrics and data
elements available to Consultant and Employers, as available January 1, 2017 unless otherwise
approved in writing by United, such approval not to be unreasonably withheld.
(ii) Sharing with Employer — Unless otherwise agreed to by United in writing and after
confirmation of execution of appropriate confidentiality terms with the Employer, neither IBM nor
Consultant shall allow the Employer access to Data which includes identification of Provider and
Provider's individual CPT/HCPCS/Service Code(s), Revenue Code(s) and associated network discount,
covered/allowable, and derivatives thereof. Furthermore, unless otherwise agreed to by United in writing
and after confirmation of execution of appropriate confidentiality terms with the Employer, neither IBM nor
Consultant shall allow the Employer access to claim level detail or Pharmacy Confidential Information
identifying a rate paid to a pharmacy for any NDC.
Employer's access to Data when specifically allowed by this Agreement, must be requested by a
person designated in writing by Employer to receive Data, and Employer agrees it will: (a) receive the
Data as Plan Administrator and use same for the limited purpose of satisfying its fiduciary obligation with
respect to its administration of the Plan as required under ERISA; (b) comply with all applicable laws
and/or regulations for any Data it receives including, but not limited to, the amendment of any Plan
documents in accordance with the Privacy Rule; and (c) not provide access to the Data to any employee,
agent or other designee other than an employee designated by Empleyer in writing to participate in the
activities described herein and (d) shall not provide Data to any third parties.
E. Pharmacy Data: If any Data which concerns or relates to pharmacy claims, pharmacy providers
(including, but not limited to, rates paid to such pharmacy providers) and/or any other pharmacy services-
related matter (collectively, "Pharmacy Confidential Information") is provided to IBM and Consultant
pursuant to the provisions of this Agreement, then the following terms shall control IBM's and
Consultant's use and disclosure of such Pharmacy Confidential Information in addition to the other terms
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and conditions contained in this Agreement. In the event of a conflict between this Section and other
provisions in the Agreement, this Section shall control for purposes of the use of Pharmacy Confidential
Information. Pharmacy Confidential Information may not be used or disclosed except as specifically
allowed by this Agreement.
In no event shall Pharmacy Confidential Information financial fields be released in combination with
Pharmacy Confidential Information provider fields to any Third Party, including bidders or to the
Employer(s), in a Request for Proposal ("RFP") or Request for Information ("RFI"), without United's prior
written consent on a case by case basis. Obtaining United's consent may, at United's sole discretion,
require the execution of an additional non-disclosure agreement by the intended data recipient or
confirmation that the data recipient already has sufficient confidentiality obligations to United to protect
the data requested.
Pharmacy Confidential Information financial fields include, but are not limited to, Ingredient Cost Paid,
Ingredient Cost Submitted, Dispensing Fee Paid, Flat Sales Amount Tax Paid, Amount Attributed to
Provider Selection, Total Amount Paid by All Sources, Cost Difference Amount and Amounts Attributed to
Product Selection/Brand Drug. Pharmacy Confidential Information provider fields include, but are not
limited to, all versions/variations of the Pharmacy ID Number/Name (including Service Provider ID,
Service Provider Chain Code, Pharmacy Name. Other Pharmacy Confidential Information fields include
Basis of Reimbursement Determination, Pharmacy Dispenser Type, and Specialty Claim indicator.
G. Other Security-Related Obligations of IBM and Consultant: The following provisions shall apply to
IBM's and Consultant's obligations under this Agreement:
(1) Storage. Promptly following receipt of the Data, IBM and Consultant shall store such Data in the
Databases or store the Data in a secure interim storage device for testing and processing
purposes only prior to loading the Data in the Databases. Subsequent to loading the Data in the
Databases, IBM and Consultant shall store the Data for archival purposes only or as required by
applicable law. IBM and Consultant shall protect the confidentiality and integrity of all Data
provided to, received by and/or maintained by IBM and Consultant consistent with the terms of
this Agreement. In the event United provides material updates to the Data to IBM and
Consultant, IBM and Consultant shall update the Databases with such information in accordance
with IBM's agreement with Consultant.
(2) Security Program. IBM and Consultant will have a data security program in place that
documents the physical, technical and administrative safeguards and controls that IBM and
Consultant shall use to protect the security and integrity of the Data. Such safeguards and
controls will, at a minimum be commercially reasonable and shall include policies and procedures
that define protections for Data that IBM and Consultant Personnel (as defined below)must follow
for access to Data. At a minimum such safeguards and protections will include individual
employee responsibilities for protecting Data and permitted uses of such Data, including but not
limited to, the limitations on use of Data to the engagement on which the employee is working
and limitations on access to detailed Data as set forth below.
(3) Employee Obligations. All iBM and Consultant Personnel (deemed to include IBM and
Consultant employees as well as individuals who are agents or independent contractors of IBM
and Consultant) who have access to United's Data shall be bound by IBM's and Consultant's
respective Codes of Conduct and obligated to comply with IBM's and Consultant's respective
security policies and procedures. All employees and contractors who have access to the Data
and are assigned to work on IBM Services and Consultant's Services, shall attend an initial
training program on IBM's and Consultant's respective Confidentiality and Security policies and
shall be trained not less than annually on the security policies. Issues specific to United shall be
communicated to employees and contractors who have access to the Data and compliance will
be monitored regularly by IBM's and Consultant's carrier liaison. IBM's and Consultant's
Confidentiality and Security policies shall address federal and state privacy laws, federal security
laws, and confidentiality of proprietary information. Consultant shall make information regarding
its data security program available to United upon United's reasonable request. IBM and
Consultant will promptly notify United of any material changes to the policies and procedures that
would reasonably be considered to weaken or relax such policies and procedures.
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(4) Verification Rights. During the term of this Agreement United may request, once per calendar
year, that IBM and Consultant verify that they are in compliance with the terms of this Agreement.
(5) Management of Issues and Dispute Resolution. The Parties will proactively manage issues in
a constructive manner that reflects the concerns and commercial interests of each Party and
facilitates the performance of all material obligations and duties of each Party in accordance with
the terms and conditions of this Agreement. If a Party brings an issue or dispute to the attention
of the other Parties, the Parties agree to meet after the issue has been raised and make a good
faith effort to resolve the dispute. The Parties reserve the right to seek any other remedy available
at law including seeking redress in a court of competent jurisdiction. This provision shall survive
the termination of this Agreement.
H. Change of Control of Consultant and/or IBM: In the event of an anticipated Change of Control of
Consultant and/or iBM, Consultant and/or IBM shall notify United at least thirty days in advance, if legally
permissible, or within 24 hours after such Change of Control if otherwise legally prohibited from providing
advanced notice. Upon any notification of Change of Control, United may immediately terminate the
Agreement by providing notice to Consultant and/or IBM, and, notwithstanding anything to the contrary in
this Agreement, regarding post-termination use of Data, Consultant and/or IBM shall, at United's option,
promptly and without undue delay return or destroy (with such destruction to be certified to United, if
requested) all Data, retaining no copies, except to the extent such data is electronically stored as a
backup copy on an encrypted server pursuant to Consultant and/or IBM's standard/automatic back-up
procedures (such procedures to be outlined in writing to United upon United's reasonable written
request). Notwithstanding anything to the contrary in this Agreement, the use of any such Data retained
by Consultant or IBM or the resulting entities after the Change of Control shall be strictly limited to the
purposes for which such Data needed to be retained and such data remains subject to the terms and
conditions of this Agreement, United may, at its sole option, extend the Agreement by notifying
Consultant and/or IBM, provided, however, that (i) United received reasonable prior notice of the Change
of Control, unless Consultant and/or IBM is legally prohibited from doing so; (ii) Consultant and/or IBM
promptly responds to reasonable requests for information from United; (iii) Consultant and/or IBM agree
to the continued application of the Agreement's terms, as amended and as applicable; and (iv) United
determines that continuation of the Agreement will not harm United's interests. The Parties agree United
reserves the right to request modification or addition of terms to address United's reasonable concerns
prior to extending the Agreement and the Parties agree to work in good faith to attempt to reach
agreement on any such modifications. Furthermore, if an entity having ownership interest in Consultant or
IBM other than a current affiliate as of the effective date of this Agreement requests access to confidential
information including but not limited to Data, Consultant and/or IBM, as applicable, shall provide
reasonable advanced notice to United before providing such access, and such access will be subject to
United's written approval, provided, however, such approval shall not be unreasonably withheld. For
purposes of this Agreement, the term "Change of Control" shall mean the acquisition following the date
hereof by one or more related third parties of at least fifty percent (50%) of the voting securities of
Consultant and/or IBM or the contractual right to direct the voting power of at least fifty percent (50%) of
the voting securities of Consultant and/or iBM. The Parties agree that notice of a Change of Control is a
material requirement of this Agreement.
I. Termination and Conclusion of Services: This Agreement shall continue in force from year-to-year,
but shall terminate automatically upon the earliest of the following: (a) upon at least thirty (30) days
written notification by any Party if termination is without cause; and (b) immediately by United, where it
has a reasonable belief that IBM and/or Consultant have breached this Agreement subject to a cure
period solely at United's reasonable discretion; (c) at the conclusion of IBM Services or the Services (d)
termination of the relationship between Employer and Consultant, or (e) termination of the relationship
between United and Employer except, for a limited period of time, as agreed upon by the Parties, subject
to IBM/Consultant's data retention policies and procedures and subject to the continued terms and
conditions of this Agreement, Data may continue to be used by Consultant and/or iBM to provide
Services for the Employer. At the conclusion of their Services, Consultant and IBM shall either relinquish
to United or, to the extent reasonably practicable and Data has not been de-identified, destroy (with such
destruction to be verified to United upon request) all Data, provided that IBM and Consultant may each
retain one copy of the Data: (i), for archival purposes or as required by applicable law, to defend their
work product pursuant to Consultant and/or IBM's standard/automatic back-up procedures (such
procedures to be outlined in writing to United upon United's reasonable written request) . The use of any
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such Data retained by Consultant or IBM shall be strictly limited to the purposes which necessitated the
retention of such Data, and such Data even in a de-identified state remains subject to the terms and
conditions of this Agreement.
J. Breach: If during the course of the Services it is discovered that this Agreement has been materially
breached by Consultant and/or IBM, then all Data shall be relinquished to United upon demand.
Notwithstanding the foregoing, if return or destruction of the Data is not feasible or Consultant and/or IBM
has reasonably cured the breach to United's satisfaction, Consultant and/or IBM may upon written
request and subject to United reasonable approval retain certain Data as outlined in Conclusion of
Services section above, provided however, that all such Data retained remains subject to the terms and
conditions of this Agreement and any applicable Business Associate Agreements.
K. Indemnification:
(1)Unauthorized use of Data by Employer is a material breach of this Agreement which may result in
irreparable harm to United for which the payment of money damages is inadequate. Employer
agrees to indemnify and hold harmless United with respect to any claims and any damages
directly caused by Employer's, Consultant's or Consultant's authorized employees' breach of this
Agreement.
(2)Unauthorized use of Data by Consultant is a material breach of this Agreement which may result
in irreparable harm to United for which the payment of money damages is inadequate.
Consultant agrees to indemnify and hold harmless United with respect to any claims and any
damages directly caused by Consultant's or Consultant's authorized employees' breach of this
Agreement.
(3)Unauthorized use of Data by IBM is a material breach of this Agreement which may result in
irreparable harm to United for which the payment of money damages is inadequate. IBM agrees
to indemnify and hold harmless United with respect to any claims and any damages directly
caused by IBM's or IBM's subcontractor's breach of the confidentiality obligations of this
Agreement.
(4) The obligation to provide indemnification under this Agreement shall be contingent upon the
Party seeking indemnification: (a) to provide the indemnifying Party with prompt notice of any
claim for which indemnification is sought, (b) to allow the indemnifying Party to control the
defense and settlement of any such claim, and (c) to cooperate fully with the indemnifying Party
in connection with such defense and settlement.
L. Antitrust Statement: IBM and Consultant represent and warrant that, as applicable, any treatment or
use of Data provided to IBM and Consultant by United under this Agreement will be done in a manner
that complies with the "safe harbor" method specified in the joint DOJ/FTC Statements of Health Care
Antitrust Enforcement Policy, Statement 6, "Statement of Department of Justice And Federal Trade
Commission Enforcement Policy on Provider Participation in Exchanges of Price and Cost information,
and related guidance issued by either the Federal Trade Commission or the Department of Justice". This
term applies to all pricing and cost data provided by United that would be in scope for the guidance,
including but not limited to provider discounts, allowable amounts, and contracted rates of reimbursement
to a specific provider for a specific service ("Covered Data") and is applicable where IBM or Consultant
provides Covered Data to a competitor of United or to multiple clients or customers of IBM or Consultant
who are competitors of one another.
M. Governing Law: This Agreement is governed by ERISA and, if applicable, the laws of the State of
Minnesota. This provision shall survive the termination of this Agreement.
N. Survival: The requirement to treat all Data as confidential information hereunder shall survive the
termination of this Agreement for a period of ten (10) years, or longer, if required by law.
O. Assignment: This Agreement shall not be assigned by any of the parties without the other parties'
prior written approval, which shall not be unreasonably withheld.
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P. Counterparts: This Agreement may be executed in any number of counterparts, which together shall
be deemed one original, and delivery of copies of signatures or facsimile signatures shall be deemed of
equal force as delivery of original signatures.
Q. General: (1) This Agreement is the entire understanding between the Parties as to the subject matter
hereof. (2) This Agreement binds the Parties and their respective successors, assigns, agents,
employers, subsidiaries and affiliates. (3) No modification to this Agreement shall be binding upon the
Parties unless evidenced in writing signed by the Party against Whom enforcement is sought. (4)
Headings in this Agreement shall not be used to interpret or construe its provisions. (5) The alleged
invalidity of any term shall not affect the validity of any other terms.
R. Global Data Agreement: IBM, as merger successor to Truven, and United are parties to a Data
Release and Confidentiality Agreement dated May 1, 2007, as amended to date ("Global Data
Agreement") pursuant to which United makes certain information available to IBM to enable IBM to
perform services for employer group health plans that have contractual relationships with United and IBM.
IBM and United agree that in the event that they further amend the Global Data Agreement or enter into a
new agreement to replace the Global Data Agreement and the terms thereof are inconsistent with the
terms of Section D of this Agreement as they may relate to IBM's use of the Data in its MarketScan
database, they will work together and with the other Parties to amend this Agreement to be made
consistent.
The Parties have caused their authorized representatives to execute this Agreement.
Intnational Business Machines Corporation HOLMES, MURF H AND ASSOCIATES, LLC
By By `
Authorized Signature thorized Signature
NameJeffrey C85APZ PantBradBrad Bierman
ii, eFO, Payer Seg
Title Title
Chief of Analytics &Technology
Date Q ( ` owv-, Date 09/28/2018
CITY OF FORT WORTH UNITED HEALTHCARE SERVICES, INC.
By By
Authorized Signature Authorized Signature
NameS, I C Name
�J Sc 1-1 A S Charlene Mancini
Tit4en Title
SS � Ct t V— NDA Specialist
Date 318 q Date 2/20/2019
Attested by: j F 0 RT'
leiIf011
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�� ti. gtr& t City Attu L.
Mar/J. Ka ity 5ecretaryU.\ OFFICIAL RECORD
''•�.., CITY SECRETARY
TEAK FT. WORTH,TX
Contract Compliance Manager:
By signing I acknowledge that I am the person responsible
for the monitoring and administration of this contract, including
ensuring all performance and reporting requirements.
Name of Employee/Signature
Title
_�5t! This form is N/A as No City Funds are associated with this Contract
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Printed Name Signature
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