Cotiviti Completes Acquisition of Edifecs.
Read the press release.
As directed by Cotiviti, Inc. or its Affiliates (“Cotiviti”), the entity receiving this purchase order (“Vendor”) will provide the goods and/or services, hereinafter referred to collectively as “Services”, to Cotiviti as specified in the Purchase Order (“PO”). For purposes of this PO, an “Affiliate” will mean an entity that now or in the future, directly or indirectly through one (1) or more intermediaries’ controls, is controlled by, or is under common control or ownership by or with Cotiviti. The Services shall be performed in accordance with the terms and conditions of this PO and/or a fully executed agreement between Cotiviti and the Vendor ("Agreement"). In the event of a conflict between the terms and conditions of this PO and the Agreement, the Agreement will control for the conflicting term or condition. No other document, including the Vendor’s proposal, quotation or acknowledgment form, will be part of this PO or the Agreement, unless specifically agreed to in writing by Cotiviti. Terms contained in the Vendor’s response to, or acknowledgment or acceptance of this PO, if any, that are additional to or different from the terms set forth herein (which terms would constitute a counter-offer by Vendor) are specifically rejected by Cotiviti. Vendor shall determine in its reasonable discretion and in consultation with Cotiviti the manner of and means by which it executes and performs its obligations hereunder. Vendor is not authorized to assume or create any obligation or responsibility, expressed or implied, on behalf of, or in the name of, Cotiviti. Vendor represents, warrants, and acknowledges that it will perform the Services using its best efforts in a professional manner consistent with industry standards utilizing sufficiently qualified and experienced employees and personnel. Vendor acknowledges acceptance of the terms and conditions of this PO through the performance of any portion of the applicable Services.
The term of this PO will commence on the date the PO is issued by Cotiviti and continue until completion of delivery and acceptance of the Services by Cotiviti. Cotiviti may terminate this PO in whole or in part (a) for cause in the event of Vendor default, such as no delivery, late delivery, delivery of nonconforming or defective goods or Vendor’s failure to provide Cotiviti, upon request, with reasonable assurances of future performance; (b) in the event of the filing of a petition in voluntary bankruptcy or an assignment for the benefit of Vendor’s creditors, or upon other action taken or suffered, voluntarily or involuntarily, under any Laws for the benefit of debtors by Seller, except for the filing of a petition in involuntary bankruptcy that is dismissed within thirty (30) days; (c) in the event of a change of control of Vendor. and (d) at any time for convenience by providing Vendor with notice of its intention to terminate the PO. Upon notice of termination, Vendor will cease or wind down provision of Services under this PO as requested by Cotiviti. Those obligations or responsibilities contained in this PO that are continuing in nature will survive the expiration or termination of this PO.
In consideration of Vendor providing the Services and performing the obligations hereunder, Cotiviti shall pay Vendor the fee(s) set forth within this PO.
Vendor shall submit detailed invoices for the amounts due under this PO to Cotiviti monthly in arrears for Services delivered and for which there has been Acceptance (as defined in Section 8 below) by Cotiviti. Invoiced amounts for the Services will be as set out in the applicable PO. Cotiviti will not pay invoices issued more than six (6) months after completion of delivery and Acceptance by Cotiviti. Vendor will invoice Cotiviti for all Services performed and the actual cost of any Cotiviti preapproved expenses incurred by Vendor in the immediately preceding month.
No services tax, income tax or payroll tax of any kind shall be withheld or paid by Cotiviti on behalf of Vendor for any payment authorized under this PO, except as may be required by law for payments to Vendor. Vendor shall be responsible for and shall collect and pay all taxes and similar payments arising out of any activities contemplated by this PO, including without limitation, federal, state, and local income tax, social security tax (FICA), self-employment taxes, unemployment insurance taxes, and all other taxes, fees, and withholdings.
Cotiviti shall pay all undisputed invoiced amounts that comply with Section 4 of this PO no later than sixty (60) days from the date of receipt of such invoice; provided that the invoice is submitted utilizing one (1) of the Cotiviti preapproved transmission methods and Cotiviti may withhold payment of all invoiced amounts that it disputes in good faith. All payments will be made to a business name or trade name and will be deposited directly into a business bank account established by Vendor. Payment for Services does not constitute acceptance of such Services or a waiver of any of Cotiviti’s rights under this PO.
If Services include, or are hardware, merchandise, or other tangible items, all shipping and handling charges shall be the responsibility of Vendor and delivered as free-on-board destination (“Free-on-Board Destination”). Thus, Vendor shall bear the risk of loss of the shipment. Vendor will package and handle any such Services so as to protect them from loss or damage and in accordance with good commercial practices. Vendor will mark Cotiviti’s order numbers on all packages, bills of lading and shipping orders and will include in each package a packing slip describing applicable goods and quantities contained in such package. Any acknowledgement by Cotiviti of such notice does not constitute a waiver of Cotiviti’s rights under this PO. Vendor will be responsible for all packaging, storage, shipping and delivery charges, including customs, duties, costs, taxes and insurance. Risk of loss of the Services will pass to Cotiviti upon completion of delivery. Time is of the essence with respect to delivery or performance of the Services. Services shall be delivered and/or performed by the applicable date specified in the PO, an order form, or as specified in the Agreement (the “Delivery Date”). Vendor will not deliver in advance of schedule or make partial delivery unless authorized by Cotiviti in writing. Vendor must immediately notify Cotiviti if Vendor will or is likely to be unable to meet a Delivery Date or unable to conform to the specifications mentioned in the Agreement or that there is a known or expected deficiency in Services. Vendor will deliver any Services as specified in this PO or otherwise as directed by Cotiviti; however, at any time prior to the Delivery Date, Cotiviti may, upon notice to Vendor, cancel or change this PO, or any portion thereof, for any reason. Upon request by Cotiviti, Vendor shall initiate and expedite all claims for loss or damage during shipment. In addition to any other remedies available to Cotiviti, at Cotiviti's option, damaged Services and/or Materials will be replaced on a rush basis and at no extra cost to Cotiviti and deficiency of Services and/or Materials will be, at the option of Cotiviti, reworked at no extra cost. No invoices will be paid related to damaged Services until the claims are settled, and the payment discount period, if any, shall be extended accordingly.
Acceptance shall occur only when: (i) Vendor has completed or delivered the Services as required under a PO or Agreement and Vendor has provided to Cotiviti all deliverables and other tangible items to be provided in connection with the Services (“Materials”) as required under the PO or Agreement; and (ii) either Cotiviti notifies Vendor in writing that Cotiviti has accepted the Services, Materials and/or deliverables (" or no notice is provided by Cotiviti within thirty (30) days of receipt of the invoice ("Acceptance"). Nothing else, including Cotiviti’s use of either the Services, tangible items or deliverables, or any portion thereof, shall constitute Acceptance of any portion of the Services. Additionally, Cotiviti shall have the right to conduct a review of any Services, Materials and deliverables, as applicable. If Cotiviti, in its sole discretion, determines that any submitted Services, Materials or deliverable does not meet the agreed upon terms or specifications, Cotiviti will reject the Service, Materials or deliverable by giving notice to Vendor specifying the deficiencies in reasonable detail. Vendor shall use reasonable efforts to promptly cure any such deficiencies within five (5) days of such notice. After completing any such cure, Vendor shall resubmit the Service, Material or deliverable for review as set forth above. After three (3) unsuccessful resubmissions by Vendor to Cotiviti for review and acceptance, Cotiviti may, in its sole discretion, terminate the applicable PO or Agreement without penalty or liability to Vendor. If Cotiviti terminates the applicable PO or Agreement, pursuant to the terms of this Section, Vendor shall provide a refund of any amount paid by Cotiviti for such Services and Cotiviti shall have no obligation to pay Vendor for any reason.
Cotiviti will hold any Services rejected under this PO at Vendor’s expense, including storage charges, while awaiting Vendor’s return shipping instructions. Upon receipt of the shipping instructions from Vendor, Cotiviti will promptly return rejected Services under this PO. Vendor will be responsible for all return shipping and delivery charges incurred by Cotiviti.
Vendor represents and warrants as follows: (1) Vendor will have and maintain the requisite technical knowledge, skills, abilities, licenses, and qualifications to provide the Services hereunder; (2) Vendor's providing of Services does not and will not violate the terms and conditions of any other contract or obligation of Vendor; (3) any Materials and other deliverables at the time of delivery to Cotiviti will not contain, and Vendor and its employees will not introduce through data transmission via modem or any other medium or in the performance of any Service hereunder or under any other agreement entered into between the parties, any Malicious Code where "Malicious Code" is defined as any software code that contains any virus, “back door”, “time bomb”, “Trojan Horse”, “worm”, “drop dead device” or other software routine designed to (i) permit unauthorized access to, or use of, computing equipment, networks or Cotiviti data, (ii) replicate, transmit, or activate itself without control of a person operating the computing equipment on which it resides, (iii) alter, disable, damage, or erase any other software without authorization, or (iv) alter, delete, capture, change, transmit, damage or otherwise alter Cotiviti data without control of Cotiviti personal operating computing equipment on which it resides; (4) documentation, which is to be provided if needed for Cotiviti to fully enjoy the Services, will be materially accurate, complete and sufficient in detail to enable Cotiviti and its employees to use all of the functionality without assistance from Vendor or any third party; (5) no professional services will be performed outside of the United States unless expressly directed by Cotiviti, and no Cotiviti Confidential Information (defined herein), including Cotiviti client data, will be stored, accessed from, or disclosed to any individuals outside of the United States; (6) Vendor’s software, if any, will not capture, log, aggregate, transmit, or otherwise send any usage data or information without Cotiviti’s knowledge and consent; (7) Vendor represents and warrants that no open source code is contained in, embedded in or otherwise used within the software, if any, without Cotiviti’s knowledge and written consent; (8) Vendor represents and warrants that the software, if any, documentation, Materials, work product or other deliverables provided by Vendor do not infringe on any third party intellectual property or other rights; (9) Vendor represents and warrants that for one (1) year following Acceptance, or the warranty period offered by Vendor, whichever is later, the Services, Materials, and deliverables shall perform in accordance with the applicable specifications and Vendor shall promptly correct any failure to operate in accordance with this performance warranty at no additional cost to Cotiviti; (10) Vendor represents, warrants and agrees that at no time during the term of this PO shall the Vendor be excluded, debarred or otherwise ineligible for participation in any federal health care programs; (11) Vendor represents and warrants that it shall comply at all times, and shall render the Services in conformity with all laws, ordinances, orders, directions, rules and regulations of the federal, state, county and municipal governments applicable thereto; (12) Vendor agrees to maintain the confidentiality, privacy and security of Cotiviti Confidential Information that is nonpublic personal information (including personally identifiable information (“PII”) or personal health information (including PHI as defined herein)) as required by applicable laws and Vendor warrants that it shall comply at all times with all state and federal confidentiality, privacy and security requirements. Vendor shall notify Cotiviti immediately and in writing of any actual or suspected unauthorized access, use, disclosure, loss, theft or manipulation of Cotiviti’s Confidential Information;(13) Vendor shall obtain and pay for all necessary federal, state and local permits, licenses, exemptions, consents and approvals necessary to enable it to perform the Services. Upon request, Vendor shall furnish Cotiviti with copies of such licenses and permits; and (14) Vendor shall assign to Cotiviti all manufacturer’s warranties for Services not manufactured by or for Vendor, and shall take all necessary steps as required by such third party manufacturers to effect assignment of such warranties to Cotiviti.
Vendor will indemnify, defend and hold harmless Cotiviti, the Affiliates and their respective officers, directors, employees, agents, successors and assigns from and against any claims, causes of action, suits, investigations, and administrative or other proceedings, and all related demands, damages, liabilities, fines, penalties, assessments, costs and expenses (including attorneys’ fees), arising from (a) Vendor’s breach of any of its representations, warranties or obligations under this PO or (b) any negligent acts or omissions or willful misconduct of Vendor, its employees, agents and representatives.
If any of the Services provided under this PO become or are likely to become the subject of an infringement or misappropriation claim, Vendor will, in addition to its indemnification obligations and to Cotiviti’s other rights, promptly take the following actions at Cotiviti’s option and at no additional charge to Cotiviti: (i) procure for Cotiviti the right to continue using such Services; (ii) replace or modify such Services to make them non-infringing, provided that the replacement or modification will not degrade their capacity or performance; or (iii) remove such Services at Vendor’s expense and reimburse Cotiviti for all amounts paid. This indemnification section shall survive any termination of this PO.
IN NO EVENT WILL COTIVITI BE LIABLE TO VENDOR, WHETHER BASED ON WARRANTY, CONTRACT, STATUTE, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, FOR (A) ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOST REVENUE, PROFITS OR SAVINGS) OR (B) ANY PUNITIVE DAMAGES (TO THE EXTENT SUCH EXCLUSION IS ALLOWED UNDER APPLICABLE LAW). IN NO EVENT SHALL COTIVITI’S LIABILITY FOR ANY CLAIM ARISING FROM OR IN CONNECTION WITH THIS PURCHASE ORDER EXCEED THE PRICE PAID BY COTIVITI UNDER THIS PO WITHIN THE MOST RECENT TWELVE (12) MONTH PERIOD TO VENDOR.
The term “Cotiviti Confidential Information” means all information or proprietary materials not generally known in the relevant trade or industry which is disclosed or made available by Cotiviti to Vendor in connection with this PO. Vendor shall (i) hold the Cotiviti Confidential Information in trust and confidence and avoid the disclosure or release thereof to any other person or entity by using the same degree of care as it uses to avoid unauthorized use, disclosure, or dissemination of its own Confidential Information of a similar nature, but not less than reasonable care, and (ii) not use the Cotiviti Confidential Information for any purpose whatsoever except as expressly contemplated under this PO or any Agreement. Upon the termination of this PO or the written request of Cotiviti, the Vendor shall destroy or return all Cotiviti Confidential Information within its possession. Upon request, an officer of the Vendor shall certify such destruction in writing to Cotiviti.
Vendor agrees that if and to the extent that Vendor will create, receive, maintain, transmit, access or view, Protected Health Information (“PHI”) (as defined under HIPAA 45 C.F.R. 160.103) (i) for or on behalf of Cotiviti in connection with Cotiviti’s services to its clients, or (ii) in connection with Vendor’s performance of Services for Cotiviti, Vendor shall execute and comply with, in addition to other applicable documents (e.g., Cotiviti’s Master Services Agreement), the terms of Cotiviti's form of HIPAA Business Associate Subcontractor Agreement ("BASA") prior to creating, receiving, maintaining, transmitting, accessing or viewing any such PHI. If the terms and conditions of the BASA or Agreement conflict with any terms and conditions of this PO, the BASA's or Agreement’s terms and conditions shall supersede those of this PO.
Vendor acknowledges that Cotiviti has implemented information security, privacy, and governance programs (collectively, the Cotiviti “Information Security, Privacy and Governance Programs”, as the same may be amended) to protect Cotiviti’s information assets, such information assets as further defined and classified in the Information Security, Privacy and Governance Programs (collectively, the “Protected Data”). Where Vendor has access to Protected Data, Vendor acknowledges and agrees Vendor shall comply with all reasonable and applicable obligations set forth in the Information Security, Privacy and Governance Programs as they pertain to Vendor’s obligation to protect Protected Data. Cotiviti shall provide these Information Security, Privacy and Governance Programs to Vendor upon request. Vendor will keep and maintain full and accurate records of all data associated with this PO, if any, including but not limited to, operational and financial data sufficient to respond to any Cotiviti or government audit in accordance with all applicable laws.
Unless otherwise expressly agreed in an Agreement or otherwise expressly set forth in this PO, all specifications, information, data, drawings, software and other items supplied to Cotiviti by Vendor shall be disclosed to Cotiviti on a nonproprietary basis and may be used and/or disclosed by Cotiviti without restriction. Additionally, unless otherwise expressly agreed in an Agreement or otherwise expressly set forth in this PO, all specifications, information, data, drawings, software and other items which are (i) supplied to Cotiviti by Vendor, (ii) obtained or developed by Vendor in the performance of this PO, or (iii) paid for by Cotiviti shall be proprietary to Cotiviti, shall be used only for purposes of providing goods or services to Cotiviti pursuant to this PO, and shall not be disclosed to any third party without Cotiviti’s express written consent. All such items supplied by Cotiviti or obtained by Vendor in performance of this PO or paid for by Cotiviti shall be promptly provided to Cotiviti on request or upon completion of this PO.
Unless otherwise expressly agreed in an Agreement or otherwise expressly set forth in this PO, any invention or intellectual property first made or conceived by Vendor in the performance of this PO or which is derived from or based on the use of information supplied by Cotiviti (collectively, the “Foreground IP”) shall be considered to be the property of Cotiviti. Vendor hereby assigns its rights in the Foreground IP to Cotiviti and shall execute such documents necessary to perfect Cotiviti’s title thereto. Unless otherwise expressly agreed in an Agreement or otherwise expressly set forth in this PO, any work performed pursuant to this PO which includes any copyright interest shall be considered a “work made for hire”. To the extent any of such works do not qualify as a “work made for hire”, Vendor hereby assigns to Cotiviti all its intellectual property rights, including its copyright rights, in such works effective immediately upon creation of such works, including when they are first fixed in a tangible medium.
Cotiviti shall have the right to audit Vendor, which may include an assessment of the Vendor’s financial, security, privacy, compliance and operational information and data, prior to the commencement of Services and from time to time during the term of this PO provided that, except when there is cause or if such audit is required under the law, Cotiviti will not audit Vendor more than once in a twelve (12) month period. Cotiviti shall also be entitled to perform, or to have performed, an on-site risk assessment and/or audit of Vendor, at its own expense. In addition to an on-site risk assessment and/or audit, at the discretion of and upon request by Cotiviti, Vendor agrees to complete, within ten (10) business days of receipt, a risk assessment and/or audit questionnaire provided by Cotiviti. The Parties shall work together in good faith to complete the risk assessment and/or audit in a timely manner.
All notices required or permitted under this PO shall be in writing and shall be deemed effective upon personal delivery or upon receipt through the United States Post Office, by registered or certified mail, postage prepaid. If to Vendor, notice shall be sent to the address set forth on the signature page of this PO. If to Cotiviti, notice shall be sent to:
Cotiviti, Inc.
10701 S River Front Pkwy
South Jordan, UT, 84095
Attn: SVP, Legal
legal@cotiviti.com
This PO and the Agreement, if applicable, contain the entire agreement between the Vendor and Cotiviti with respect to the matters contemplated herein. Vendor may not assign this PO or any of its rights hereunder, or delegate or subcontract any of its obligations hereunder. This PO and all disputes or non-contractual obligations arising out of or in connection with it will be governed by and construed in accordance with the Laws of the State of Delaware, without reference to the principles of conflicts of law that would apply the substantive laws of another jurisdiction. Notwithstanding the foregoing, nothing shall prevent either party from commencing legal proceedings for the purpose of seeking immediate preventative relief (such as an injunction or the equivalent) in the appropriate jurisdiction. No delay or omission by Cotiviti in exercising any right under this PO shall operate as a waiver of that or any other right. Neither party hereto shall make any representations or warranties or incur any liability on behalf of the other. Neither party is the representative, partner, employee or any form of agent of the other party. Vendor shall, at all times, perform its obligations under this PO as an independent contractor. In the event that any provision of this PO shall be invalid, illegal, or otherwise unenforceable, the validity, legality, and enforceability of the remaining provisions shall in no way be affected or impaired thereby. However, if such provision of this PO is material to the Vendor’s ability to perform the Services in accordance with the terms of this PO or Agreement, in Cotiviti's discretion, Cotiviti may immediately terminate this PO. Cotiviti will then have no further liability hereunder. Upon the issuance of such a notice by Cotiviti, Vendor is not authorized to perform any other Services under this PO.
Without the prior written consent of Cotiviti, Vendor shall not issue or release any statement, article, advertisement, public or private announcement (including, without limitation, any announcement made via e-mail or any posting on the Internet or World Wide Web), media release, or other similar publicity relating in any manner to: (a) any aspect of this PO; (b) any aspect of the Services rendered or Materials or deliverables furnished hereunder; or (c) the fact that the parties have engaged in any discussions or negotiations regarding any of the foregoing. Vendor shall not use the name or any trademark or logo of Cotiviti without prior written consent. Cotiviti may disclose to prospective or current clients that Vendor is a vendor of Cotiviti and a description of the Services provided.
