Electronic records handbook

Appendix C: Contractual Provisions for Data Sharing in Electronic Medical Record/Electronic Health Record Agreements

Purpose of this document

The CMPA (together with the Canadian Medical Association) published “Data Sharing Principles for Electronic Medical Record/Electronic Health Record Agreements” (“Data Sharing Principles”) to provide guidance with respect to the implementation of an agreement for an electronic medical record (EMR) or electronic health record (EHR) system. The CMPA has also prepared sample contractual provisions that reflect each of the principles identified in the Data Sharing Principles document.

How to use

These sample provisions are intended to be used as a guide when a physician is entering into an agreement for an EMR/EHR system or where sharing patient information in electronic form. The principles and related contractual provisions will vary depending upon the circumstances. Consideration will need to be given to intended use, the system(s) in operation, the information to be shared, the parties and the type of agreement being developed. Due to data sharing complexities, physicians are encouraged to engage legal counsel to assist them in using these sample provisions to develop an agreement that suits their context. It will be necessary to select the sample provisions that apply and to adapt them to the particular circumstances in which patient information is being shared.

The contractual provisions within this document are generally intended for an arrangement where the physician is relying upon the services of another party (e.g. health region, hospital, service provider) to maintain an EMR/EHR system and to maintain patient information in the system on behalf of the physician. In some jurisdictions, the contractual provisions for data sharing within a health region or network may be determined at the provincial/territorial level with assistance from the provincial/territorial medical association or federation. The sample provisions are intended to assist physicians in circumstances where no data sharing framework has been developed at the provincial/territorial/regional level. The provisions could also be modified for use in an Inter-Physician Agreement where a physician will be contracting with other physicians.

It must be emphasized that the information contained in this document should not be considered a replacement for a legal agreement prepared in consultation with legal counsel.

Definitions

The appropriate list of definitions to be included in the agreement will depend upon the contracting scenario, which may include, but not be limited to, the following:

• Parties
• Physician [Comment: The parties will also want to consider whether the definition of physician should include the physician’s employees and agents.]
• Service Provider
• Personal Health Information (“PHI”) [Comment: The definition of PHI may not be limited to patient information, but may include audit trails and other data.]
• Patient
• Applicable Law
• Applicable Privacy Legislation
• Users and Designated Users
• System [Comment: The system may be a complex EHR or a simple one-way flow of patient information in electronic form, but should be defined in any case.]
• Health Services
• Data Stewardship Committee
• Quality Assurance Information

Each of these terms should be defined in a manner that reflects the particular contracting scenario.

1. Ownership of Personal Health Information/Data Stewardship

SAMPLE PROVISIONS:

• The Parties acknowledge that for the purposes of applicable privacy legislation, all PHI collected by the Physician remains in the custody of the Physician. [Comment: This may not always apply in hospital-based systems.]
• The Service Provider acknowledges and agrees that it shall not acquire any ownership of any PHI, and the Service Provider’s use of the PHI is solely for the purposes of providing the EMR/EHR System and for no other purpose.
• In collecting, using, or disclosing PHI, the Parties shall comply with all applicable law and any provincial/territorial regulatory authority (College) policies dealing with the creation, maintenance, or destruction of medical records.
• Notwithstanding any other provision of this Agreement, nothing in this Agreement nor any liens, claims, and encumbrances granted to any third party by the Service Provider or otherwise shall prevent the Physician from complying with applicable law and any provincial/territorial regulatory authority (College) policies, including without limitation the Physician’s: (i) obligations regarding the creation, maintenance, and destruction of patient medical records; (ii) ability to use patient medical records; and (iii) ability to transition medical records to another service provider in the event of a termination or expiry of the Agreement.
• A Party may disclose PHI in response to a subpoena, warrant, order, demand, or request by a Canadian court or other competent authority with jurisdiction to compel the disclosure, or as otherwise required or permitted by Canadian law. A Party shall promptly notify the other Party if it receives any such order so that the Parties can jointly determine whether to seek a protective order or other appropriate remedy. The Parties shall cooperate with each other as appropriate to help obtain a protective order. If a Party does not obtain a protective order, the Party subject to the subpoena, warrant, order, or demand shall:

1. furnish only that portion of the PHI which is legally required;
2. exercise reasonable efforts to obtain reliable assurance that the PHI will be accorded confidential treatment; and
3. promptly provide to the other Party, copies of the PHI that was disclosed, as well as the request made for the PHI.

2. Confidentiality and Privacy

SAMPLE PROVISIONS:

• The Physician may provide the Physician’s patients with access to their own PHI in accordance with applicable law.
• The collection, use, and disclosure of PHI will be undertaken in accordance with applicable privacy legislation on a “least information necessary to achieve the purpose” principle, with the highest degree of anonymity that is practical in the circumstances. Collection and use of PHI will be on a “need to know” basis.
• In collecting, using, or disclosing PHI, Users shall comply with applicable law and any provincial/territorial regulatory authority (College) policies dealing with the creation, use, maintenance, or destruction of medical records. [Comment: In a sophisticated system, the Parties may wish to establish a Data Stewardship Committee to assist in making decisions regarding the use of PHI in the System, including the use of Data for purposes other than the provision of health services.]
• The Data Stewardship Committee shall be responsible for determining whether and how PHI may be used or disclosed for purposes other than the provision of health services where such uses or disclosure are permitted by applicable privacy law.

3. Security and Access to the EMR/EHR

SAMPLE PROVISIONS:

• The Physician may use PHI on the System for the provision of health services where the use of such information is permitted under applicable law and any provincial/territorial regulatory authority (College) policies. The Physician may use PHI on the System when:
  1. the Physician is in a clinical relationship with the individual who is the subject of the PHI;
  2. the Physician is providing health services to the individual;
  3. the Physician’s use of the PHI is necessary for the provision of health services or for making a determination for a related health service; or
  4. the PHI is related to and necessary for the current session of care.
• The Physician may use PHI on the System for the purpose of obtaining advice from a liability protection provider and/or legal counsel.
• The Service Provider shall implement and maintain safeguards for the security and protection of the PHI consistent with applicable law and any provincial/territorial regulatory authority (College) policies, and shall protect the PHI against risks such as unauthorized use, disclosure, destruction, and alteration. The Service Provider shall permit the Physician, acting reasonably, to monitor the Service Provider’s compliance with the established security standards and the terms and conditions of this Agreement.
• The Service Provider will create a unique personal system account and profile for, and enable use of the system by each participating Physician.
• The Service Provider will manage, in a secure manner, any devices, codes, or other security measures it creates for enabling user access to the System.
• The Service Provider will develop, implement, operate, and manage a mechanism, which may include processes and technology, to detect and monitor unauthorized access to the System, and unauthorized use or disclosure of PHI.
• The Service Provider will develop, implement, operate, and manage an incident response process to deal with breaches or suspected breaches of the System or PHI access security.
• The Service Provider will immediately investigate any suspected breach of the System or PHI security where: (a) the suspected breach is identified by the Service Provider, or (b) such investigation is requested by a participant in its own investigation of a suspected breach.
• Where the Service Provider determines that a breach of the System or PHI security has occurred, it will immediately inform the Physician impacted by or likely to be impacted by the breach.
• With respect to any breach of the System or PHI security, the Service Provider will immediately act to: (a) remedy the breach; (b) manage and mitigate effects of the breach; and (c) develop a strategy for the prevention of a future breach under a similar circumstance.
• The Parties will not allow any person to use PHI in the System unless that person has been authorized as a designated User by the Service Provider.
• The Parties will use all reasonable efforts to protect the System and the PHI against any unauthorized access, use, disclosure, or modification. This obligation shall survive termination of the Agreement.
• The Service Provider shall, in accordance with the terms of this Agreement:
  1. comply with applicable law and any provincial/territorial regulatory authority (College) policies with respect to the security and protection of the PHI. More specifically, the Service Provider agrees to implement and maintain reasonable safeguards for the security and protection of the PHI and shall report regularly on its security measures and activities;
  2. ensure that its employees, agents, and those for whom it is otherwise in law responsible, use the PHI solely for the purposes of and as described in the Agreement;
  3. be fully and solely responsible for the actions of its employees, agents, and those for whom it is otherwise in law responsible respecting the use or disclosure of the PHI and for any unauthorized disclosure or use of the PHI as a result of carrying out its obligations under the Agreement;
  4. regularly monitor access to the System to ensure that only designated Users are permitted access; and
  5. provide the Physician with audit logs of the Physician’s designated Users’ activity in the System upon the Physician’s request, and cooperate with the Physician’s investigations of inappropriate System use by the Physician’s designated Users.
• The Parties shall only permit use of PHI if it is necessary to carry out a collection, use, or disclosure contemplated under this Agreement. Except as otherwise required in the Agreement, wherever possible the parties shall de-identify PHI before using or disclosing.
• The Parties agree that every User of the System shall use and disclose the minimum PHI that is essential to enable the User to carry out one or more of the purposes authorized by the Agreement. The Parties agree that PHI shall only be collected, stored, used, and disclosed as contemplated by this Agreement.
• The Service Provider will utilize technological practices and standards, such as encryption technology, that incorporate reasonable security measures, to protect confidentiality.
• The Service Provider shall ensure that the System can accommodate patient requests to limit access to PHI to specific Users.

4. Accuracy and PHI Quality

SAMPLE PROVISIONS:

• Corrections or amendments can be made to PHI by the Physician as required, including in response to a request from a patient for a correction to his/her PHI.
• Where a correction or amendment to the PHI the Physician has entered into the System is required after the Physician’s access to the System has been terminated or suspended, upon written notice to the Service Provider, the Service Provider shall forthwith make the correction or amendment and give written notice to the Physician that such correction or amendment has been made.
• The Service Provider shall promptly notify the Physician if the Physician has accessed any erroneous or outdated information.
• The Parties shall ensure that the PHI that is collected, used, or disclosed is accurate and not altered, modified, or enhanced except in accordance with this Agreement.
• Each of the Parties agrees, and shall ensure that the PHI that it has collected and makes available for disclosure to and use by the other Parties under this Agreement, should be accurate and no Party shall alter, modify, or enhance that PHI except in accordance with this Agreement.

5. Record Maintenance Requirements

SAMPLE PROVISIONS:

• A Physician may access the System and use PHI on the System for conducting practice self-audits as follows:
  1. to determine whether the requirements of an applicable professional regulatory body are being maintained and its guidelines adhered to;
  2. to determine whether the requirements of any other governing or overseeing body are being maintained;
  3. to determine whether the practice’s claims submissions are accurate and their claims practices are compliant with applicable requirements;
  4. to determine whether the practice’s own written standards and procedures are being effectively and efficiently executed; and
  5. for any other purpose essential to the practice’s effective operation in the provision of health services to individuals.
• The Service Provider shall not access records relating to a Physician’s self-practice audit or use or disclose the records relating to a self-practice audit without authorization from the Physician.
• PHI may be provided to a health professional body at the Physician’s request where:
  1. the Physician has complied with any other legislation authorizing or requiring the Physician to disclose that information for that purpose;
  2. the PHI is required with respect to an investigation, discipline proceeding, or practice review; and
  3. the PHI, i. has been entered by a member of the requesting health professional body, or ii. pertains to an activity of a member of the requesting health professional body.
• The Service Provider shall establish a data stewardship committee (“Data Stewardship Committee”) which shall have oversight of the collection, use, disclosure, management, and retention of PHI in the System. The Data Stewardship Committee shall include Physician representatives. [Comment: The Agreement should define the composition of the Committee and how/ whether the Committee will have access to the PHI in the System.]
• The Data Stewardship Committee shall periodically assess compliance with this Agreement by the Parties and shall create policies and procedures to facilitate such compliance.
• The Data Stewardship Committee shall conduct periodic and/or random audits of access to the System and use or disclosure of PHI including assessments of levels of access; the identity of individuals or entities accessing, using, or disclosing PHI; and the purposes of access, use, or disclosure.
• The Service Provider shall ensure that with respect to all PHI, PHI will be created, maintained, or retained with a view to satisfying a Physician’s legal requirements for authenticity and integrity of both the PHI and the process by which it was created. The System shall provide for an audit trail to supply a record of collection, use, access, disclosure, and corrections made to the PHI. [Comment: Agreement may specify additional requirements of audit trail.]
• In the event that the Physician becomes involved in a medico-legal matter, the Service Provider shall ensure that the Physician will have access to the PHI required by the Physician with respect to care provided by the Physician to the patient. PHI shall be created, maintained, or retained with a view to satisfying applicable requirements regarding the integrity of the PHI and the process by which the PHI was created. The PHI should be maintained for a period that is consistent with applicable record retention requirements, and the PHI shall be made available to the Physician in the event of a medico-legal matter.
• When, in accordance with applicable law and any provincial/territorial regulatory authority (College) policies, PHI is required to be destroyed, the Service Provider shall ensure that the PHI has been destroyed in an appropriate manner consistent with applicable law and any provincial/territorial regulatory authority (College) policies.
• The Service Provider shall ensure that the System can accommodate the storage of PHI such that the content and form of the PHI complies with applicable law and any provincial/territorial regulatory authority (College) policies or electronic record maintenance requirements.

6. Quality Assurance

SAMPLE PROVISIONS:

The Service Provider shall ensure that any PHI designated as “quality assurance information” shall be segregated in the System and made accessible only to specified Users who are involved in the quality assurance/quality improvement review.

7. Services and Functionality

SAMPLE PROVISIONS:

• SERVICES: The Service Provider shall provide the electronic medical record/electronic health record and related services, functions, as set forth and described in Schedule “A” attached hereto (the “EMR/EHR Services”). [Comment: The specific EHR/ EMR services will need to be described in detail in a service schedule.]
• SERVICE LEVELS: The Service Provider’s performance of the EMR/EHR Services shall comply with the terms and conditions of this Agreement; shall meet or exceed the service levels, response times, and other performance criteria set forth in Schedule “B” attached hereto (the “Service Levels”); and shall at all times be in compliance with applicable law and any provincial/territorial regulatory authority (College) policies. [Comment: The service level schedule will define specific service levels which must be met by the Service Provider. This may include an availability requirement and the schedule would detail how such a requirement would be calculated. Sample language is provided as an example.]

SERVICE LEVELS

• HOURS OF OPERATION; RESPONSE TIME: Physician support calls will be responded to by the Service Provider’s appropriate call centre on business days during the call centre’s normal hours of operation. The Service Provider will use reasonable efforts to respond to a service call promptly after the call is received by the Service Provider’s call centre representative. The Service Provider shall respond to support calls and remedy any and all problems within the time frames set forth in this Agreement.
• MAINTENANCE: The Service Provider shall provide scheduled maintenance (“Scheduled Maintenance”) for the purpose of general maintenance and upkeep of the System, including, without limitation, general adjustments to the System, the installation of bug fixes and patches, and the implementation of updates, upgrades, revisions, and new versions of software and hardware. The Service Provider shall also provide remedial maintenance (“Remedial Maintenance”), including responding to problems encountered by the Physician when the Physician reports problems to the Service Provider. The Service Provider shall give the Physician no less than [72] hours’ notice of any Scheduled Maintenance. Scheduled Maintenance shall be limited to no more than [8] hours per calendar month, unless the Physician requests additional Scheduled Maintenance or the parties otherwise agree additional Scheduled Maintenance is appropriate, and Scheduled Maintenance shall be conducted whenever practicable during non-peak hours.
• SYSTEM AVAILABILITY: ”System Availability” means the ratio of minutes that the System is available (excluding Scheduled Maintenance) in any rolling three (3) calendar month period to the total number of minutes in that three (3) month period. Problems or outages caused by systems or providers outside of the Service Provider’s control shall not be included in the calculation of System Availability. [Comment: There are numerous ways of measuring “system availability,” this Section is given as an example.] [Comment: Remedies of some sort are typically necessary for the Service Levels to have any real consequence. The types of consequences specified in an agreement for a failure to meet service levels need to be tailored to the particular agreement. In agreements where the Physician pays the Service Provider for the Services, it may be appropriate to provide for some sort of refund or service credit associated with a failure to meet service levels. Service Providers are generally more willing to provide credits than refunds. Such a provision can be more or less detailed depending on the needs of the Physician.]
• THIRD PARTY LICENCES: The Service Provider, at its sole cost and expense, shall obtain any and all third party licences on behalf of the Physician that are required for the provision of the Services and use of the System. At the Physician’s request, the Service Provider shall promptly provide written confirmation to Physician that all third party software licensors are aware that the Physician is a beneficiary of such third party software licences. [Comment: The Physician wants assurance that the Service Provider has obtained all necessary rights in connection with the operation of the EMR/EHR System.]
• BACKUPS: The Service Provider shall use storage media to perform a backup that involves nightly incremental and periodic full backups of the electronic medical record/electronic health records. The Service Provider shall store all backup storage media in a fire-proof area in the Service Provider’s facility. Backup storage media shall rotate to an offsite storage facility periodically.
• DISASTER RECOVERY: The Service Provider shall at all times implement and maintain the following disaster recovery measures:
  1. Fire. The Service Provider facility shall contain an automated fire suppression system that will not affect any of the equipment or systems but will immediately extinguish a fire.
  2. Power. The Service Provider shall use multiple power sources to ensure an uninterrupted power supply to the Service Provider facility in the event of a power failure.
  3. Server Failure. All Service Provider servers shall be either redundant or load balanced to allow for any system to go down and not in any way interrupt use of the System nor affect the functionality, capacity, availability, or performance of the System.
• SECURITY:

1. The Service Provider shall use appropriate best practices for security access control technology for all access to the System, with access restricted to authorized persons. The Service Provider shall provide adequate firewall protection and intrusion detection systems in order to secure the PHI from unauthorized access, alteration, or destruction by third parties, and shall use appropriate, industry best practice security technology to ensure the security of all transmissions to and from the System and to prevent the corruption, loss, destruction, or misdirection of such transmissions. The Service Provider shall immediately notify the Physician of any security or system integrity breaches or holes and shall take all reasonable steps to remedy the situation. [Comment: Agreement may specify appropriate levels of protection required, including encryption requirements.]
2. The Service Provider shall employ system security measures which meet or exceed any and all applicable standards required by applicable law and any provincial/territorial regulatory authority (College) policies for Physicians operating electronic medical record or electronic health record systems. The Service Provider shall keep all such systems maintained and current, and shall install all updates, upgrades, enhancements, new versions, and required patches in a timely manner. The Service Provider will promptly notify the Physician of any security breaches or known security vulnerability of the System.

• TRANSITION ASSISTANCE SERVICES: In the event this Agreement is terminated, regardless of the reason for such termination, or upon the expiration of this Agreement, the Service Provider shall cooperate in good faith with the Physician to assist the Physician and another service provider selected by the Physician in the orderly transition of the Services from the Service Provider’s System to the new service provider’s system. Such assistance will, upon the Physician’s request, include, without limitation, the following: (i) promptly developing with the Service Provider and its new service provider a transition plan setting forth the respective tasks and timetable to be performed by each party; (ii) backing up the Physician’s PHI and other information and data; (iii) assisting the Physician or the new service provider with the loading or transmission of the database; (iv) assisting the Physician or the new service provider in resolving any connectivity or configuration problems; (v) rendering such assistance as is reasonably necessary to enable all necessary or appropriate conversions of Physician PHI, and other information and data to the new system; and (vi) providing any and all other assistance to the Physician until the service is transitioned to the new service provider’s system.
• LIABILITY PROTECTION: The Service Provider shall maintain a policy of general and professional liability insurance in amounts that are sufficient to protect itself for the purposes of this Agreement. Such insurance shall name the Physician as an additional insured but only with respect to this Agreement and shall include at least the following: Products and completed operations; Personal injury; Cross liability; Contractual liability; and thirty (30) days prior written notice of material change to, cancellation, or non-renewal of the policy. The Service Provider shall provide evidence of insurance upon request.

8. Termination and the Continuity of Operation of the Electronic Medical System

SAMPLE PROVISIONS:

• Upon the termination or expiration of this Agreement: (a) the Data Stewardship Committee shall assume responsibility for the interim maintenance of the Data; (b) within sixty (60) days of termination, the Data Stewardship Committee shall ensure that all Physicians who have contributed PHI receive copies of such PHI, together with copies of all other PHI contributed subsequently that has altered, modified, enhanced, or is otherwise related to such PHI in such format as that the Physician requires; and (c) the Data Stewardship Committee shall not otherwise alter, modify, enhance or destroy the EMR without the approval of the Physician.

9. Termination for Convenience

SAMPLE PROVISIONS:

• Termination for Convenience: The Physician may terminate [this Agreement] or [its participation in the System] without cause by providing [thirty (30)] days written notice:
• Termination for Bankruptcy/Insolvency: Either Party may terminate this Agreement, upon written notice to the other Party, if the other Party is subject to proceedings in bankruptcy or insolvency, voluntarily or involuntarily; if a receiver is appointed with or without the other Party’s consent; if the other Party assigns its property to its creditors or performs any other act of bankruptcy; or if the other Party becomes insolvent and cannot pay its debts when they are due.
• Termination for Breach: In addition to any other rights and remedies available to it, the Physician may immediately terminate this Agreement in the event of a breach of this Agreement by the Service Provider provided that such breach is not cured within [# of days (e.g., seven)] days of notification by the Physician of such breach.

10. Indemnification

SAMPLE PROVISIONS:

• The Service Provider agrees to be liable to and to indemnify and hold the Physician, its employees, subcontractors, agents, and suppliers harmless from any and all claims, demands, suits, actions, causes of action, or liability of any kind whatsoever for damages, losses, costs, or expenses (including legal fees and disbursements), or other amounts that may arise, directly or indirectly, as a result of: (a) any breach of applicable law; (b) any breach of the Agreement; (c) any unauthorized collection, use, or disclosure, or alteration of PHI; (d) any unauthorized exchange of PHI; (e) any unauthorized access to the System; (f) any breach of the security or privacy of PHI the Physician has entered or has provided access to through the System; or (g) any unauthorized alteration (including, without limitation, unauthorized access) of the PHI the Physician has contributed to the System, or caused by the Service Provider, its employees, agents or others for whom the Service Provider is legally responsible.
• INDEMNIFICATION PROCESS: The indemnifying party will defend and settle, at the indemnifying party’s own expense, all such claims and will pay all awards, damages, costs, and other amounts awarded to the claimant or agreed to in a settlement, including the indemnified party’s reasonable legal fees and expenses prior to the indemnifying party assuming control of the defence to such claims and the reasonable and necessary expenses relating to cooperation requested by the Indemnifying Party under Section [insert section number].
• INDEMNIFICATION CONDITIONS: The indemnified party shall notify the indemnifying party of such claim without undue delay. The indemnifying party shall have control over the defence, final award, or settlement of such claim, provided that the indemnifying party shall not compromise or settle a claim in the name of the indemnified party without the indemnified party’s prior consent. The indemnified party shall cooperate with the indemnifying party in such defence and settlement.

11. Limitation of Liability

SAMPLE PROVISION:

In no event shall any provision of this Agreement limit or exclude the Service Provider’s liability for any unauthorized or unlawful collection, access, use, or disclosure of PHI.

12. Representations and Warranties

SAMPLE PROVISION:

• The Service Provider represents and warrants to the Physician that:
  1. it has the full power and authority to enter into and perform its obligations under this Agreement;
  2. there are no outstanding contracts, commitments, covenants, or agreements to which the Service Provider is a party which conflict with this Agreement or which may limit, restrict, or impair the rights of the ability of the Service Provider to provide the Services and perform its obligations hereunder;
  3. all of the Services to be performed by it hereunder shall be rendered in a competent, professional, workmanlike manner by knowledgeable, trained, and qualified personnel;
  4. the Services shall at all times be provided in conformance with the Service Levels and other performance criteria set forth in this Agreement and in any documentation and other materials provided by the Service Provider;
  5. the Service Provider’s technology does not and shall not violate any applicable law, or any provincial/territorial regulatory (College) policies;
  6. the Services do not and shall not violate, infringe, or misappropriate the patent, trade-mark, copyright, trade secret, or other intellectual or proprietary right of any third party; and the Service Provider owns or otherwise has the right to use the System in connection with providing the Services hereunder;
  7. it will comply with all applicable law and any provincial/territorial regulatory authority (College) policies in the performance of its obligations hereunder; and
  8. it shall remain primarily responsible for the performance of its obligations under this Agreement.

13. Dispute Resolution

SAMPLE PROVISIONS:

• DISPUTE RESOLUTION
  1. Escalation Procedure: If the Parties are unable to settle a dispute arising from this Agreement, then notice shall be provided to the Physician and the Service Provider. In the event the Parties are not able to resolve the dispute within five (5) Business Days of the receipt of such notice, then either Party may request that the matter proceed to arbitration in accordance with the laws of [province/territory of the Physician] then in effect. The decision of the arbitrator, which may include an award of costs in the matter, shall be final and binding upon the Parties.
  2. Continued Performance: Subject to the provisions of this Agreement and other than the specific subject matter of the dispute, the Parties shall continue the performance of their obligations during the resolution of any dispute or disagreement, including during any period of arbitration, unless and until this Agreement is terminated or expires in accordance with its terms.
  3. Injunctive Relief: Notwithstanding the provisions of this Section, each Party shall retain the right and nothing shall prevent either Party from seeking immediate injunctive relief if, in its business judgment, such relief is necessary to protect its interests prior to utilizing or completing the dispute resolution processes described in Section [ ], including without limitation, in respect of a claim by a Party based on a breach of the confidentiality obligations herein.

14. Governing Law/Forum

SAMPLE PROVISION:

• GOVERNING LAW/FORUM: The Parties hereby agree that their relationship and the resolution of any and all disputes arising therefrom, including any issues related to this Agreement, shall be governed by and construed in accordance with the laws of the Province or Territory of and the laws of Canada applicable therein.
• JURISDICTION: The Parties hereby acknowledge that the Services will be provided in the Province or Territory of [insert province or territory where Physician is located] and that the Courts of the Province or Territory of [insert province or territory where Physician is located] shall have exclusive and preferential jurisdiction to entertain any complaint, demand, claim, or cause of action whatsoever arising out of this Agreement. The parties hereby agree that if either of them commences any such legal proceedings they will only be commenced in the Province or Territory of [insert province or territory where Physician is located] and hereby irrevocably submit to the exclusive jurisdiction of the Courts of the Province or Territory of [insert province or territory where Physician is located].

15. Funding

[Comment: Each Physician will want to ensure that the funding and support infrastructure meets the Physician’s needs. No funding provision is recommended given the variability in which funding might be offered.]