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Contract Negotiation:

By now you should have identified your number one choice for your EHR/PM purchase. You should have a second, or backup, preference as well. Since you still have to negotiate the contract and execute the purchase, there are still problems that can occur forcing you to select an alternate vendor.

The vendor will offer their "stock" purchase agreement and sales contract to you. Keep in mind that everything in life is negotiable. You, and probably your attorney, should thoroughly review both documents. Make any changes that you know you will not agree to and add clauses that you want in the contract. You will be bound to this contract for the entirety of your relationship with the vendor so now is the time to get it right. Here are some key points to address in the contract:

• Ensure that future changes to the contract must be in writing. This protects both parties.
• Document all costs, including recurring maintenance fees, licenses, fees, etc.
• Document all specifications and features for the products and services.
• Clearly spell out how long the current version of software will be supported, how often updates are to be issued and what they will contain, and what your rights are if the vendor releases a new major version number (such as a 2010 version of the 2009 software). You do not want to buy a software package that will become obsolete two years down the road. It is common for software vendors to revise their software to such an extent that they can call it a new product and then force customers to pay a significant fee to continue upgrading in the future. Annual maintenance fees of between 10 and 20 percent are normal. You should be able to receive all minor and major software updates every year as long as you keep the maintenance contract in force. However, you will need to keep that contract in force or risk losing your right to upgrade. These issues can occur no matter where you host your EHR/PM software.
• If you are purchasing the software, make sure that you own the right to use the software in perpetuity... even after your service contract has terminated.
• If you are using an ASP "hosted" EHR/PM implementation, the contract should clearly spell out who owns the data... you own it.
• Ensure that the ASP is obligated to provide a current copy of your data any time that you request a copy (within reason).
• The vendor contract will likely have a strong indemnity clause... that protects them. You should have one that protects you as well. Cross indemnity is common in final contracts but is not often provided in the initial contract that is offered to you.
• Ensure that your software license is transferrable in the event that you sell your system or business. The new owner will appreciate that they do not have to renegotiate a new contract with the EHR vendor.
• If you are requesting any special features in the software, or any ancillary services from the vendor, ensure that clauses pertaining to those are included in the contract.

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