ImageTrend Software AgreementSOFTWARE LICENSING AGREEMENT
CONTRACT No.: 276082
MODIFICATION TO SYSTEM OPERATED BY ADVOCATE GOOD SAMARITAN SYSTEM
BETWEEN
VILLAGE OF OAK BROOK FIRE DEPARTMENT
1200 OAK BROOK ROAD
OAK BROOK, IL 60523
AND
IMAGETREND, INC.
20855 KENSINGTON BLVD. I MAGE TREND
LAKEVILLE, MN 55044
THIS AGREEMENT is made and entered into on the date last written below, by and between the
ImageTrend, Inc., a Minnesota corporation (hereinafter "IMAGETREND"), and Village of Oak Brook
(hereinafter "CLIENT") for modification to a system operated by Advocate Good Samaritan System
(hereinafter "SYSTEM ADMINISTRATOR")
RECITALS
WHEREAS, IMAGETREND owns the software system known SOFTWARE; and
WHEREAS, CLIENT desires to obtain a modification of the Software mentioned above licensed
to SYSTEM ADMINISTRATOR; and
WHEREAS, IMAGETREND is willing to modify the Software for CLIENT;
NOW, THEREFORE, THE PARTIES HEREBY AGREE AS FOLLOWS:
SECTION 1. DEFINITIONS.
"Authorized personnel" means employees of CLIENT that use the Software in the scope of their
employment, or CLIENT's contractors where the contractor's services must necessarily require access to
the Software. Personnel who intend to: reverse engineer, disclose, or use or acquire for any purpose not
in the scope of the personnel's employment or necessary for contractor services, any Confidential
Information are not Authorized Personnel.
"Confidential information" means the proprietary products and trade secrets of IMAGETREND and/or
its suppliers, including, but not limited to, computer software, code, technical parameters, price lists,
customer lists, designs, software documentations, manuals, models and account tables, and any and all
information maintained or developed by CLIENT pursuant to this AGREEMENT which is deemed
confidential under existing state and/or federal law.
"ePCR" means an Electronic Patient Care Report
"Incident(s)" means an instance where the CLIENT sends a vehicle to a potential or actual patient.
"License" means an unlimited use license of the software, without rights for resale, for the duration of the
contract, defined as Software as a Service (SaaS) which expires when this AGREEMENT expires.
"Licensed Information" means any information pertaining to the Software which is owned by
IMAGETREND and is licensed to CLIENT. Licensed Information includes such information as input form,
user manuals and user documentation, interface format and input/output format, and any other materials
pertaining to the Software.
"Perpetual License" means an unlimited use of software without rights for resale.
"Reference" means referral in the promotion of IMAGETREND'S software to other potential CLIENTS.
"Run(s)" means an incident where the CLIENT sends a vehicle to a potential or actual patient.
"Software" means the computer program(s) in machine readable object code form listed in Exhibit "A",
including the executable processing programs comprising the various modules from the Software and the
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Licensed Information. CLIENT's license to the modification does not give CLIENT any right to the license
for the underlying system paid for by SYSTEM ADMINISTRATOR
"Support" means interactive telephone and e-mail support, computer based online training, product
upgrades and enhancements, along with defect corrections, delivered from IMAGETREND's offices.
"SYSTEM ADMINISTRATOR" refers to the party who holds a license to, and operates, the
IMAGETREND Software system that the CLIENT wishes to have modified under this AGREEMENT.
"Upgraded Version" means the Licensed Software and/or Licensed Information to which updates,
enhancements, corrections, installations of patches or other changes have been made. The exterior form
of the Updated Version is reflected by changes to the version numbers.
SECTION 2. TERM OF AGREEMENT.
The term of this AGREEMENT shall be one year(s) from signature date, subject to Section 13 of this
AGREEMENT. This AGREEMENT shall be subject to automatic renewal unless terminated by either
party as provided in Section 13, below.
SECTION 3. GRANT OF LICENSE.
A. NON-EXCLUSIVE USE LICENSE.
In accordance with the terms and conditions hereof, IMAGETREND agrees to grant to CLIENT and
CLIENT agrees to accept a non -transferable and non-exclusive use license of the Software. During
the term of the AGREEMENT, the CLIENT shall have access to the Software, which will be installed
on servers at the IMAGETREND hosting facility and subject to the Service Level Agreement attached
as Exhibit B. CLIENT expressly acknowledges that all copies of the Software and/or Licensed
Information in any form provided by IMAGETREND to CLIENT hereunder are the sole property of
IMAGETREND and/or its suppliers, and that CLIENT shall not have any right, title, or interest to any
such Software and/or Licensed Information or copies thereof except as provided in this
AGREEMENT. CLIENT shall not receive any right, title or interest in the SYSTEM
ADMINISTRATOR's Software license or system. CLIENT is receiving a license solely to the
modification or integration listed in Exhibit A — Pricing Agreement. CLIENT agrees and understands
that the underlying system license is under the sole control of SYSTEM ADMINISTRATOR and that
SYSTEM ADMINISTRATOR may terminate that system at any time without notice or consideration
for CLIENT, and that by the nature of the Software modification, CLIENT's ability to use the
modification will terminate simultaneously. CLIENT shall receive no replacement value, damages,
refund, or any other remuneration if SYSTEM ADMINISTRATOR chooses to terminate their license or
system. Nothing in this AGREEMENT shall be construed to imply that SYSTEM ADMINISTRATOR
has any right to use the Software modification or integration listed in Exhibit A beyond that which is
technically necessary for the modification or integration to function.
B. PROTECTION OF SOFTWARE AND LICENSED INFORMATION.
CLIENT agrees to respect and not to, nor permit any third -party to, remove, obliterate, or cancel from
view any copyright, trademark, confidentiality or other proprietary notice, mark, or legend appearing
on any of the Software or Licensed Information, and to reproduce and include the same on each
authorized copy of the Software and Licensed Information.
CLIENT shall not nor shall CLIENT permit any third -party to, copy or duplicate the Software or any
part thereof except for the purposes of system backup, testing, maintenance, or recovery. CLIENT
may duplicate the Licensed Information only for internal training, provided that all the names,
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November 20, 2017
trademark rights, product names, copyright statement, and other proprietary right statements of
IMAGETREND are reserved. IMAGETREND reserves all rights which are not expressly granted to
CLIENT in this AGREEMENT.
CLIENT shall not, nor shall CLIENT permit any third -party to, modify, reverse engineer, disassemble,
or decompiie the Software, or any portion thereof, and shall not use the software or portion thereof for
purposes other than as intended and provided for in this AGREEMENT.
SECTION 4. SOFTWARE ABSTRACT.
A. The IMAGETREND Elite contains and stores the data elements of an emergency medical
database, including data schema and values that may originate from traditional computer aided
dispatch (CAD) sources and data values that may be used in billing from pre -hospital patient
care. The emergency medical database may contain certain vehicle transport information but
does not contain data elements and/or values specific to the vehicle path tracking such as
automatic vehicle location (AVL) or third party AVL integrations. The emergency medical
database does support integrations to third party CAD and billing solutions. The emergency
medical database does not support any AVL, CAD or billing functions executed directly from the
database. CLIENT shall not use IMAGETREND Software to integrate patient information from a
clinical encounter associated with a patient incident requiring emergency medical care by the
emergency transport crew with flight information relating to an emergency transport crew dispatch
to produce an encounter record indicative of the patient's clinical encounter.
B. The IMAGETREND Service Bridge/State Bridge/Rescue Bridge contains and stores the data
elements of an emergency medical database as defined, described and mandated by the
National EMS Information System (NEMSIS). The dataset was adopted by IMAGETREND for
State and local regulatory authorities as required by NEMSIS. The NEMSIS data schema and
elements are the sole work of the NEMSIS organization in conjunction with the National Highway
Traffic Safety Administration (NHTSA). The NEMSIS dataset contains data elements and data
structures originating and potentially owned by a number of nonprofit third parry organizations
and government agencies such as the World Health Organization (ICD 9 and ICD 10),
International Health Terminology Standards Development Organization (SNOMED), U.S
Department of the Interior and U.S. Geological Survey (GNIS), National Institute of Standards
and Technology (FIPS), Health Level Seven International (HL7), Joint APCO/NENA Data
Standardization Working Group (AACN). The NEMSIS dataset offers customer driven
extensibility that allows the end user to extend and define the dataset at their own discretion.
SECTION 5. SERVICES PROVIDED BY IMAGETREND.
A. SUPPLY OF SOFTWARE AND LICENSED INFORMATION.
IMAGETREND shall provide CLIENT software and services as listed in Exhibit A.
B. MODIFICATIONS, IMPROVEMENTS AND ENHANCEMENTS.
During the terms of this AGREEMENT and any extensions under Section 2, IMAGETREND will
provide CLIENT with error corrections, bug fixes, patches or other updates to the Software in
object code form, to the extent available in accordance with IMAGETREND's release schedule. If
CLIENT desires to add new functions or make enhancements to the Software, CLIENT must, for
additional consideration, negotiate with IMAGETREND to develop new functions or improvements
to the existing Software. All such error corrections, bug fixes, patches, updates, or other
improvements or modifications shall be the sole property of IMAGETREND.
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C. INSTALLATION, INTRODUCTORY TRAINING AND DEBUGGING.
1. IMAGETREND shall provide CLIENT with start-up services such as the installation and
introductory training relating to the Software, and, if necessary, initial debugging services.
2. "Train -the -trained' training for administrators as detailed in Exhibit A. Additionally, online
training videos and user guides in electronic format will be made available.
3. Introductory training relating to the Software as detailed in Exhibit A. The parties may enter
into a supplemental written AGREEMENT in the event CLIENT desires that IMAGETREND
provide additional training.
SECTION 6. MAINTENANCE AND SUPPORT.
A. Application use support as detailed in Service Level Agreement Exhibit B.
B. Server hosting environment is monitored and supported 24/7. Emergency support information is
available on the IMAGETREND Support site for emergency purposes. Non -emergency related
contact may be charged to the CLIENT.
C. Maintenance of IMAGETREND software, which includes scheduled updates and new releases,
as well as defect correction as needed, is included. Specific out -of -scope system enhancement
requests will be reviewed with the CLIENT and subject to approval if additional charges are
necessary.
SECTION 7. FEES.
A. Except as otherwise provided in this AGREEMENT, IMAGETREND shall offer the Products and
the Services at the prices set forth on Exhibit A.
(i) IMAGETREND will perform price increases of the recurring fees. The first price increase
will occur with the fees due for Year 2. These price increases will occur once every year
and may not exceed 3% of the price then currently in effect.
B. The fees for this contract areas detailed in the attached Exhibit A.
C. At any time during this AGREEMENT, the CLIENT may contract with IMAGETREND for
additional software and services not covered in this AGREEMENT with fees to be negotiated on
an item -by -item basis. To the extent that CLIENT pays IMAGETREND to uniquely customize the
software, each CLIENT shall have the non-exclusive license to utilize such software without
additional cost or expense, however to the extent that such software is then distributed and
therefore becomes a product requiring ongoing support, as such it shall be subject to support fee
increases. Any product enhancements offered by IMAGETREND will be offered to all CLIENTS
as such and may be subject to licensure and support.
D. If there is a delay in acceptance on the remaining items for longer than 60 days, IMAGETREND
has the option to invoice the remaining balance on any or all of the open items for Year 1 and
begin the Recurring Fees schedule.
SECTION 8. PROTECTION AND CONFIDENTIALITY,
A. ACKNOWLEDGEMENT.
CLIENT hereby acknowledges and agrees that the Software and Licensed Information provided
hereunder constitute and contain valuable proprietary products and trade secrets of
IMAGETREND and/or its suppliers, embodying substantial creative efforts and confidential
information, ideas and expressions. Accordingly, CLIENT agrees to treat (and take precautions to
ensure that its authorized personnel treat) the Software and Licensed Information as confidential
in accordance with the confidentiality requirements and conditions set forth below. CLIENT
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November 20, 2017
acknowledges and agrees that CLIENT shall not permit any non -Authorized User from accessing
the Software made available to the CLIENT.
B. MAINTENANCE OF CONFIDENTIAL INFORMATION.
Each party agrees to keep confidential all confidential information disclosed to it by the other
party in accordance herewith, and to protect the confidentiality thereof in the same manner it
protects the confidentiality of similar information and data of its own (at all times exercising at
least a reasonable degree of care in the protection of confidential information); provided,
however, that the provisions of this Section 8 shall not apply to information which: (i) is in the
public domain; (ii) has been acquired by CLIENT by normal means upon the disclosure of the
information by IMAGETREND; (iii) is duly obtained by CLIENT directly or indirectly from a third
party who has independently developed the information and is entitled to disclose the information
to CLIENT, and such disclosure does not directly or indirectly violate the confidentiality obligation
of such third party; or (iv) becomes known publicly, without fault on the part of CLIENT,
subsequent to the receipt of the information by CLIENT.
C. SURVIVAL.
This Section 8 shall survive the termination of this AGREEMENT or of any license granted under
this AGREEMENT.
SECTION 9. WARRANTIES.
A. PERFORMANCE.
IMAGETREND warrants that the Software will conform to the specifications as set forth in the
Licensed Information. However, this warranty shall be revoked in the event that any person other
than IMAGETREND and its agents make any unauthorized amendment or change to the
Software in any manner.
B. OWNERSHIP.
IMAGETREND represents that it is the owner of the entire right, title, and interests in and to the
Software, and that it has the sole right to grant licenses thereunder, and that it has not knowingly
granted licenses thereunder to any other entity that would restrict rights granted hereunder to
CLIENT.
C. LIMITATIONS ON WARRANTY.
All of IMAGETREND's obligations under this Section 9 shall be contingent on CLIENT's use of
the Software in accordance with this AGREEMENT and in accordance with IMAGETREND's
instructions as provided by IMAGETREND in the Licensed Information, and as such instructions
may be amended, supplemented, or modified by IMAGETREND from time to time.
IMAGETREND shall have no warranty obligations with respect to any failures of the Software
The express warranties provided herein are the only warranties made by IMAGETREND with
respect to the Software and supersede all other express or implied warranties, including, but not
limited to, any warranties of merchantability and warranties for any special purpose.
SECTION 10. LIMITATION OF LIABILITY.
Unless otherwise provided in this Section 10, CLIENT's exclusive remedy for any damages or losses
arising out of IMAGETREND's breach of warranties shall be, at IMAGETREND's option, either (i)
immediate release from the AGREEMENT; or (ii) repair of the Software.
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November 20, 2017
SECTION 11. INDEMNIFICATION.
A. INDEMNITY
IMAGETREND (which includes its agents, employees and subcontractors, if any) agrees to
indemnify CLIENT, as well as any agents thereof from all damages, judgments, loss and
expenses, but not including consequential or incidental damages arising out of.
(i) any personal injuries, property damage, or death that CLIENT may sustain while using
IMAGETREND's, as well as any agents thereof, controlled property or equipment in the
performance of this AGREEMENT; or
(ii) any personal injury or death which results or increases by any action taken to medically
treat CLIENT agents, employees and subcontractors; or
(iii) any personal injury, property damage or death that CLIENT may sustain from any claim
or action brought against CLIENT, as well as any agents thereof arising out of the
negligence or recklessness of IMAGETREND in the performance of this AGREEMENT,
Except for the foregoing claims, CLIENT, as well as any agents thereof agrees to indemnify,
defend, and hold harmless IMAGETREND from all claims, lawsuits, damages, judgments, loss,
liability, or expenses, arising out of any claim or action brought against IMAGETREND arising out
of the negligence or recklessness of CLIENT, as well as any agents thereof in the performance of
this AGREEMENT.
B. ENTIRE LIABILITY
SECTION 11 (A) ABOVE STATES THE PARTIES ENTIRE LIABILITY THE PARTIES SOLE AND
EXCLUSIVE REMEDY FOR ANY CLAIMS OF INDEMNIFICATION. SECTION 9 OF THIS
AGREEMENT STATES THE FULL EXTENT OF IMAGETREND'S WARRANTY AND SECTION
11 (A) PROVIDES NO ADDITIONAL WARRANTY OF ANY KIND, ANY OTHER WARRANTY,
EXPRESS OR IMPLIED OUTSIDE OF THIS AGREEMENT, INCLUDING THOSE ARISING OUT
OF THE UNIFORM COMMERCIAL CODE, ARE WAIVED.
SECTION 12. INSURANCE REQUIREMENTS.
IMAGETREND will provide standard Insurance coverage as detailed in a Certificate of Insurance, if
requested.
SECTION 13. TERMINATION.
A. TERMINATION WITHOUT CAUSE.
Following the expiration of the original term of this AGREEMENT, either party shall have the right
to terminate this AGREEMENT, without cause, by giving not less than sixty (60) days written
notice of termination.
B. CUSTOM DEVELOPMENT TERMINATION
Either party shall have the right to terminate any Custom Development portion(s) of this
AGREEMENT, without cause, by giving not less than thirty (30) days written notice of termination.
C. TERMINATION FOR CAUSE.
This AGREEMENT may be terminated by the non -defaulting party by giving not less than thirty
(30) days written notice of termination if any of the following events of default occur. (i) if a party
materially fails to perform or comply with this AGREEMENT or any provision hereof; (ii) if either
party fails to strictly comply with the provisions of Section 8 , above, or makes an assignment in
violation of Section 15, below; (iii) if a party becomes insolvent or admits in writing its inability to
pay its debts as they mature, or makes an assignment for the benefit of creditors; (iv) if a petition
under any foreign, state, or United States bankruptcy act, receivership statute, or the like, as they
November 20, 2017 wwwJmaaetrend.com Page 17
now exist, or as they may be amended from time to time, is filed by a party; or (v) if such a petition
is filed by any third party, or an application for a receiver is made by anyone and such petition or
application is not resolved favorably within ninety (90) days.
CLIENT shall not receive any right, title or interest in the SYSTEM ADMINISTRATOR's Software license
or system. CLIENT receives a license solely to the modification or integration listed in Exhibit A — Pricing
Agreement. CLIENT agrees and understands that the underlying system license is under the sole control
of SYSTEM ADMINISTRATOR and that SYSTEM ADMINISTRATOR may terminate that system at any
time without notice or consideration for CLIENT. Due to the nature of the Software modification, CLIENT's
ability to use the modification will terminate if the underlying system operated by SYSTEM
ADMINISTRATOR terminates or otherwise ceases to operate. CLIENT shall receive no replacement
value, damages, refund, reactivation, replacement system or any other remuneration or replacement if
SYSTEM ADMINISTRATOR chooses to terminate their license or system.
SECTION 15. NONASSIGNABILITY.
CLIENT shall not assign this AGREEMENT or its rights hereunder without the prior written consent of
IMAGETREND.
SECTION 16. GOVERNING LAW.
The parties agree that the law governing this AGREEMENT shall be that of the State of Minnesota
without regard to its conflict of laws principles.
SECTION 17. COMPLIANCE WITH LAWS.
IMAGETREND shall comply with all applicable laws, ordinances, codes and regulations of the federal,
state and local governments.
SECTION 18. WAIVER.
Any waiver by either party of any default or breach hereunder shall not constitute a waiver of any
provision of this AGREEMENT or of any subsequent default or breach of the same or a different kind.
SECTION 19. NOTICES.
All notices and other communications required or permitted to be given under this AGREEMENT shall be
in writing and shall be personally served or mailed, postage prepaid and addressed to the respective
parties as follows:
TO CLIENT: Village of Oak Brook
1200 Oak Brook Road
Oak Brook, IL 60523
ATTENTION: Kevin Fleege
TO IMAGETREND: ImageTrend, Inc.
20855 Kensington Blvd.
Lakeville, MN 55044
ATTENTION: Mike McBrady
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Notice shall be deemed effective on the date personally delivered or, if mailed, three (3) days after
deposit in the mail.
SECTION 20. FORCE MAJEURE.
Neither party shall be liable in damages or have the right to terminate this AGREEMENT for any delay or
default in performing hereunder if such delay or default is caused by conditions beyond its control
including, but not limited to Acts of God, Government restrictions (including the denial or cancellation of
any export or other necessary license), wars, insurrections and/or any other cause beyond the
reasonable control of the party whose performance is affected.
SECTION 29. ARBITRATION.
Any dispute between IMAGETREND and CLIENT under this AGREEMENT shall be resolved by
arbitration by an arbitrator selected under the rules of the American Arbitration Association (MINNESOTA)
and the arbitration shall be conducted in that same location under the rules of said Association. If an
arbitrator cannot be agreed upon by the parties, IMAGETREND and CLIENT shall each choose an
arbitrator, and those two chosen arbitrators shall choose a third arbitrator, who shall preside over any
dispute. IMAGETREND and CLIENT shall each be entitled to present evidence and argument to the
arbitrator. The arbitrator shall have the right only to interpret and apply the provisions of this
AGREEMENT and may not change any of its provisions. The arbitrator shall permit reasonable pre -
hearing discovery of facts, to the extent necessary to establish a claim or a defense to a claim, subject to
supervision by the arbitrator. The determination of the arbitrator shall be conclusive, final and binding
upon the parties and judgment upon the same may be entered in any Minnesota court having jurisdiction
thereof. The arbitrator shall give written notice to the parties stating his determination, and shall furnish to
each party a signed copy of such determination. IMAGETREND and CLIENT shall equally share the cost
of the arbitrator(s) fees. The arbitrator may award reasonable costs and expenses, including reasonable
attorney fees, to the prevailing party.
SECTION 22. INTERPRETATION.
This AGREEMENT has been negotiated between persons sophisticated and knowledgeable in the
matters dealt with in this AGREEMENT. Each party further acknowledges that it has not been influenced
to any extent whatsoever in executing this AGREEMENT by any other party hereto or by any person
representing it, or both. Accordingly, any rule or law or legal decision that would require interpretation of
any ambiguities in this AGREEMENT against the party that has drafted it is not applicable and is waived.
The provisions of this AGREEMENT shall be interpreted in a reasonable manner to effect the purpose of
the parties and this AGREEMENT.
SECTION 23. SIGNATOR'S WARRANTY AND ACCEPTANCE BY PERFORMANCE
Each party warrants to each other party that he or she is fully authorized and competent to enter into this
AGREEMENT, in the capacity indicated by his or her signature and agrees to be bound by this
AGREEMENT. CLIENT understands and agrees that If CLIENT accepts any Software, goods, or services
from IMAGETREND prior to IMAGETREND receiving a final, mutually signed copy of this AGREEMENT,
that CLIENT has accepted this AGREEMENT and all of its terms and conditions.
SECTION 24. PRIOR AGREEMENTS AND AMENDMENTS.
This AGREEMENT, including all Exhibits attached hereto, represents the entire understanding of the
parties as to those matters contained herein. No prior oral or written understanding shall be of any force
or effect with respect to those matters covered hereunder. This AGREEMENT may only be modified by a
written amendment duly executed by the parties to this AGREEMENT.
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November 20, 2017
SECTION 25. SUBJECT TO SYSTEM ADMINISTRATOR AGREEMENT
A. SYSTEM ADMINISTRATOR CONSENT IS A CONDITION PRECEDENT
This AGREEMENT is expressly conditioned upon the SYSTEM ADMINISTRATOR's consent to
modification of their licensed system. IMAGETREND does not have, nor purports to have,
authority to obligate the SYSTEM ADMINISTRATOR to CLIENT in any manner. If SYSTEM
ADMINISTRATOR did not consent to the modifications to the system outlined in this
AGREEMENT at the Date of signature, then this AGREEMENT is void.
B. CLIENT DUTY TO OBTAIN CONSENT TO MODIFY
It is CLIENT's duty to obtain consent from SYSTEM ADMINISTRATOR to modify the system as
outlined in this AGREEMENT. CLIENT warrants to the best of its knowledge and ability that
SYSTEM ADMINISTRATOR consents to the modifications sought in this AGREEMENT. CLIENT
further understands IMAGETREND may verify SYSTEM ADMINISTRATOR consent, but
IMAGETREND is under no obligation to so verify the consent. IMAGETREND may rely on
CLIENT's warranty of SYSTEM ADMINISTRATOR consent. IMAGETREND shall not be in
breach of this AGREEMENT if SYSTEM ADMINISTRATOR does not consent, and
IMAGETREND took no action to verify SYSTEM ADMINISTRATOR's consent.
C. DATA REPRODUCTION
IMAGETREND, under contractual obligation to SYSTEM ADMINISTRATOR, and under
HIPAA/HITECH may not reproduce PHI under certain circumstances. Because this
AGREEMENT is for an integration or modification to a system operated by SYSTEM
ADMINISTRATOR, any request for data or data duplication which includes PHI (as defined in
Exhibit C below) requires SYSTEM ADMINISTRATOR's written consent in addition to any other
requirement imposed by contract or by law. It is CLIENT's duty to obtain this written consent.
IMAGETREND shall not be in breach of this AGREEMENT if SYSTEM ADMINISTRATOR denies
consent to produce data.
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WITNESS THE EXECUTION HEREOF on the day and year last written below.
APPROVED AS:
"CLIENT"
Dated:
"IMAGETREND"
Dated: It -070 --Ayl l
11
October 19. 20179ste6er-5-204 rnvw maitre d c Page
EXHIBIT A — Pricing Agreement
EXHIBIT B — Service Level Agreement
EXHIBIT C — HIPAA Business Associate Agreement
EXHIBIT D — Insurance Certificate
EXHIBIT E — Tax Exemption Certificate
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EXHIBIT A — PRICING AGREEMENT
IMAGETREND's license and annual support are based upon 2,290 annual incidents as provided by
CLIENT. IMAGETREND reserves the right to audit the annual incident volume and the option to increase
future support costs, with prior notification to the CLIENT, if the number of annual incidents increases
substantially and has a resulting effect of increased support calls to IMAGETREND.
Pricina Aareement
Description �k�jP�iceztenile(ti
U2grade to Ima eTrend Elite Rescue 1
2,290 $1.00 1 $2,290.00
image I rend Elite Field Site License Annual Support
$2,000.00
$2,000.00
Billing Integration Manual rt ON Setu Fee 1
No Cha a
No Char e
Webinar Training Sessions (a 2 Hour Session M -F During
Ima eTrend's Standard Business Hours 3
$250.00
$750.00
Scheduler Setup Fee 1
$750.00
$750.00
Ima eTrend Mobile Fire Inspections 1
Included
Included
TOTAL One -Time Fees
Upgrade to Image -Trend Elite Rescue Annual SaaS Fee
2,290 $1.00 1 $2,290.00
image I rend Elite Field Site License Annual Support
1
Included
Included
Billing Integration Annual Support
1
No Charge
No Char e
Scheduler Annual Support
1
$400.00
$400.00
TOTAL Recurring Fees
TOTAL Year 1
It)t o al�za��Y 'Sy a
x .z..x , .
Out of Scope billed at $175/Hour
Ewa
Units;,:?Prlce
u
4 Baa
Extended
$175.00
Onsite Training Sessions 0 $1,000/day
$1,000.00
Travel per Trainer (for Onsite Training at CLIENTS Facility
Training)*** $1,750/trainer/trip
$1,750.00
Webinar Training Sessions (2 hour session M -F during
Ima eTrend's Standard Business Hours) $250/session
$250.00
"The CLIENT may elect to purchase additional services as set forth in the options identified above at any
time during the contract term. The CLIENT shall exercise said options by written notice to IMAGETREND.
The prices above are valid for one year from contract signature.
Payment Terms:
a. Payment Terms are net 30 days.
b. Upon acceptance and signature of Contract, 100% of Total Year 1 will be invoiced. The Recurring
Annual Fees will be invoiced annually in advance.
c. The recurring Annual Fees will be billed annually in advance.
d. If there is a delay In acceptance on the remaining Items for longer than 60 days, IMAGETREND
has the option to invoice the remaining balance on any or all of the open items for Year 1 and
begin the Recurring Fees schedule.
e. CLIENT agrees IMAGETREND may, in IMAGETREND's discretion, cease to provide access,
hosting, support or otherwise disable the Software listed in Exhibit A due to CLIENT's breach of
contract, overdue payments, or missed payments,
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f. CLIENT agrees IMAGETREND may charge to CLIENT a late fee of 1.5% per month, or the
highest rate allowed under the law, whichever is lower, on any overdue amounts. CLIENT also
agrees IMAGETREND may charge to CLIENT all reasonable costs and expenses of collection,
including attorneys' fees where, in IMAGETREND's discretion, payments are consistently
deficient or late
g. IMAGETREND will invoice sales tax to non-exempt CLIENTS where applicable.
Pricing escalation factors:
a. IMAGETREND will perform price increases of the recurring fees, The first price increase will
occur with the fees due for Year 2. These price increases will occur once every year and may not
exceed 3% of the price then currently in effect.
b. All Recurring Annual Fees are based upon anticipated usage and are subject to an annual usage
audit, which may affect future fees.
c. All hosting fees are based upon anticipated usage and includes 30 GB of Storage total. These
fees are subject to annual usage audits, which may affect future fees at an increase of
$15/10GB/month for Storage.
Statements/Invoices should be mailed to:
Kevin Fleege
Village of Oak Brook
1200 Oak Brook Road
Oak Brook, IL 60523
Phone: (630) 368-5204
Email: kfleege@oak-brook.org
ImageTrend Salesperson Contact
Mike Tamasi
952-469-1589
mtamasi@imagetrend. com
contracts @i m ag etre nd. com
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November 20, 2017
EXHIBIT B — SERVICE LEVEL AGREEMENT
SOFTWARE AS A SERVICE (SAAS)
VERSION 4.1
This agreement exists for the purpose of creating an understanding between ImageTrend and CLIENT
who elect to host the application on ImageTrend's servers. It is part of our guarantee for exceptional
service levels for as long as the system annual support fee is contracted. The Licensed ImageTrend
Hosted Solution Service Level Agreement guarantees your web application's availability, reliability and
performance. This Service Level Agreement (SLA) applies to any site or application hosted on our
network as contracted.
1. Hosting at the ImageTrend's Datacenter
ImageTrend's hosting environment provides 99.9% availability and is comprised of state-of-the-art
Blade Servers and SAN storage that are configured with the no single point of failure through
software and infrastructure virtualization, blade enclosure redundancies and backup storage policies.
Our Microsoft SOFS SAN has a fiber channel backend, has dual storage controllers with redundant
power supplies and redundant paths to disk, and hot swappable drives. We do offsite replication to
disk on a second SAN. Scheduled maintenance and upgrades do not apply to the system availability
calculation and all CLIENTS are properly notified of such scheduled occurrences to minimize
accessibility interruptions. Maintenance occurs the last Wednesday of each month between 9 and
11 pm Central.
Hardware
ImageTrend server hardware is configured to prevent data loss due to hardware failure and utilize
the following to ensure a quick recovery from any hardware related problems.
• Independent Application and Database Servers
o Microsoft SQL Server 2014
o Microsoft Windows Server 2016
• Redundant Power Supplies
• Off -Site Idle Emergency Backup Servers (optional)
• Cisco 5516x ASA Firewall with IDS/IPS and VPN
• Redundant Disk configuration
• Disk Space allocation and Bandwidth as contracted
Physical Facility
The ImageTrend hosting facilities are located in downtown Minneapolis and Chicago with every
industry standard requirement for hosting not only being met, but exceeded. Requirements such
as power supply and power conditioning, normal and peak bandwidth capacity, security and fail
over locations are all part of an overall strategy to provide the most reliable hosting facility
possible.
• Redundant, high-speed Internet connections over fiber optics.
• Power protection via an in-line 80kVa UPS with a 150 KW backup diesel generator
• Temperature controlled
• Waterless Fire Protection and Clean agent fire suppression
• Secured site access
• Steel Vault Doors
• 21" concrete walls and ceiling
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Data Integrity
ImageTrend applications are backed up daily allowing for complete recovery of data to the most
recent backup:
• Daily Scheduled Database and Application Backups.
• Daily Scheduled backup Success/Failure notification to ImageTrend staff
Application and Hosting Support
ImageTrend provides ongoing support as contracted for their applications and hosting services,
including infrastructure. This includes continued attention to product performance and general
maintenance needed to ensure application availability. Support includes technical diagnosis and fixes
of technology issues involving ImageTrend software. ImageTrend has a broad range of technical
support services available in the areas of:
• Web Application Hosting and Support
• Subject Matter Expert Application Usage Support
• Web Application Development/Enhancement
• Database Administration/Support
• Project Management
• Systems Engineering/Architecture
ImageTrend offers multi-level technical support, based on level -two user support by accommodating
both the general inquiries of the administrators and those of the system users. We will give the
administrators the ability to field support for the system as the first level of contact while providing
them the option to refer inquiries directly to ImageTrend.
ImageTrend's Support Team is available 24/7 at www.imagetrend.com/support as well as Monday
through Friday from 7:30 am to 6:00 pm CST at:
Toll Free: 1-888-469-7789
Phone: 952469-1589
Online Support
ImageTrend offers an online support system which incorporates around-the-clock incident
reporting of all submitted tickets to ImageTrend's application support specialists. Once a client
submits a support ticket, he or she can track the progress with a secure login to the support
application. The system promotes speedy resolution by offering keyword -based self-help services
and articles in the knowledgebase, should clients wish to bypass traditional support services.
Ticket tracking further enhances the efforts of Support Desk personnel by allowing ImageTrend to
identify patterns which can then be utilized for improvements in production, documentation,
education and frequently asked questions to populate the knowledgebase. The support ticket
tracking system ensures efficient workflow for the support desk specialists while keeping users
informed of their incident's status. Support patterns can be referenced to populate additional
knowledgebase articles.
Incident Reporting Malfunctions
ImageTrend takes all efforts to correct malfunctions that are documented and reported by the
Client. ImageTrend acknowledges receipt of a malfunction report from a Client and acknowledges
the disposition and possible resolution thereof according to the chart below.
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November 20, 2017
Action Expectation:
Anticipated Error
resolution
notification after
Notification
ImageTrend Return
Acknowledgement:
Call to Licensee of
ImageTrend Return Call to
Notification
Licensee after initial
Acknowledgement
Severity Level
Exam les of each Severlty Level:
notification of an Error
of an error.
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November 20, 2017
High/Site Down
- Complete shutdown or partial shutdown
Within one (f) hour of initial
Six hours
of one or more Software functions
notification during business
- Access to one or more Software
hours or via
functions not available
support.imagetrend.com
- Major subset of Software application
impacted
Medium
- Minor subsystem failure
Within four (4) hours of initial
24 Business hours
-Data entry or access Impaired on a
notification
limited basis — usually can be delegated
to local client contact as a first level or
response for resolution — usually user
error i.e. training) or forgotten passwords
Low
- System operational with minor issues;
Same day or next business
Future Release
suggested enhancements as mutually
day of initial notification
agreed upon — typically covered in a
future release as mutually agreed upon.
Serv/ce Requests (enhancements)
Any service requests that are deemed to be product enhancements are detailed and presented to
the development staff, where the assessment is made as to whether these should be added to
the future product releases and with a priority rating. If an enhancement request is specific to one
client and deemed to be outside of the original scope of the product, then a change order is
written and presented to the Client. These requests are subject to our standard rates and mutual
agreement. Clients review and approve the scope, specification and cost before work is started to
ensure goals are properly communicated.
Product release management is handled by ImageTrend using standard development tools and
methodologies. Work items including, tasks, issues, and scenarios are all captured within the
system. Releases are based on one or more iterations during a schedule development phase.
This includes by not limited to: development, architecture, testing, documentation, builds, test and
use cases. Submissions of issues or requests are documented within our Product Management
system and from there workflow is created to track the path from initial request to resolution.
Out of Scope
Client may contract with ImageTrend for Out of Scope services. This will require a separate
Statement of Work and will be billed at ImageTrend's standard hourly rate.
Maintenance and Upgrades
System/product maintenance and upgrades, if applicable, are included in the ongoing support
and warranty as contracted. These ensure continued attention to product performance and
general maintenance. Scheduled product upgrades include enhancements and minor and major
product changes. Customers are noted in advance of scheduled maintenance. It is the Client's
responsibility to accept all offered updates and upgrades to the system. If the Client does not
accept these. Client should be advised that ImageTrend, at its discretion, may offer limited
support for previous versions. All code releases also maintain the integrity of any client speck
configurations (i.e. templates, addresses, staff information, active protocols, etc.) that have been
implemented either by ImageTrend's implementation staff or the client's administrative staff.
Escalation
Our support staff is committed to resolving your issues as fast as possible. If they cannot resolve
your issue, they will identify the course of action that they will be taking and indicate when an
answer will be available. They in turn will seek assistance from the designated developer. The
next level of escalation goes to the Project Manager, who also addresses all operational issues
on an ongoing basis and reviews the issue log regularly to assess product performance and
service levels. Senior Management will handle issues requiring further discussion and resolution.
Any issues to be determined to be of a critical nature are immediately escalated accordingly.
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--------------------------- .-...............
EXHIBIT C — HIPAA BUSINESS ASSOCIATE AGREEMENT
BUSINESS ASSOCIATE AGREEMENT
This Business Associate Agreement ("Agreement") dated , 201_ (the
"Effective Date"), is entered into by and between Village of Oak Brook, an Illinois corporation (the
"Covered Entity") and ImageTrend, Inc. a Minnesota corporation (the "Business Associate").
WHEREAS, Covered Entity and Business Associate have entered into, or are entering into, or
may subsequently enter into, agreements or other documented arrangements (collectively, the "Business
Arrangements) pursuant to which Business Associate may provide products and/or services for Covered
Entity that require Business Associate to access, create and use health information that is protected by
state and/or federal law; and
WHEREAS, pursuant to the Administrative Simplification provisions of the Health Insurance
Portability and Accountability Act of 1996 ("HIPAA"), the U.S. Department of Health & Human Services
("HHS") promulgated the Standards for Privacy of Individually Identifiable Health Information (the "Privacy
Standards"), at 45 C.F.R. Parts 160 and 164, requiring certain individuals and entities subject to the
Privacy Standards (each a "Covered Entity", or collectively, "Covered Entities") to protect the privacy of
certain individually identifiable health information ("Protected Health Information", or `PHI"); and
WHEREAS, pursuant to HIPAA, HHS has issued the Security Standards (the "Security
Standards"), at 45 C.F.R. Parts 160, 162 and 164, for the protection of electronic protected health
information ("EPHI"); and
WHEREAS, in order to protect the privacy and security of PHI, including EPHI, created or
maintained by or on behalf of the Covered Entity, the Privacy Standards and Security Standards require a
Covered Entity to enter into a "business associate agreement" with certain individuals and entities
providing services for or on behalf of the Covered Entity if such services require the use or disclosure of
PHI or EPHI; and
WHEREAS, on February 17, 2009, the federal Health Information Technology for Economic and
Clinical Health Act was signed into law (the "HITECH Act'), and the HITECH Act imposes certain privacy
and security obligations on Covered Entities in addition to the obligations created by the Privacy
Standards and Security Standards; and
WHEREAS, the HITECH Act revises many of the requirements of the Privacy Standards and
Security Standards concerning the confidentiality of PHI and EPHI, including extending certain HIPAA
and HITECH Act requirements directly to business associates; and
WHEREAS, Business Associate and Covered Entity desire to enter into this Business Associate
Agreement;
NOW THEREFORE, in consideration of the mutual promises set forth in this Agreement and the
Business Arrangements, and other good and valuable consideration, the sufficiency and receipt of which
are hereby severally acknowledged, the parties agree as follows:
Business Associate Obligations. Business Associate may receive from Covered Entity, or create
or receive on behalf of Covered Entity, health information that is protected under applicable state
and/or federal law, including without limitation, PHI and EPHI. All capitalized terms not otherwise
defined in this Agreement shall have the meanings set forth in the Privacy Standards, Security
Standards or the HITECH Act, as applicable (collectively referred to hereinafter as the "Confidentiality
Requirements"). All references to PHI herein shall be construed to include EPHI. Business
Associate agrees not to use or disclose (or permit the use or disclosure of) PHI in a manner that
would violate the Confidentiality Requirements if the PHI were used or disclosed by Covered Entity in
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the same manner
2. Use of PHI. Except as otherwise required by law, Business Associate shall use PHI in compliance
with 45 C.F.R. § 164.504(e). Furthermore, Business Associate shall use PHI (1) solely for Covered
Entity's benefit and only for the purpose of performing services for Covered Entity as such services
are defined in Business Arrangements, and (ii) as necessary for the proper management and
administration of the Business Associate or to carry out its legal responsibilities, provided that such
uses are permitted under federal and state law. Covered Entity shall retain all rights in the PHI not
granted herein. Use, creation and disclosure of de -identified health information by Business Associate
are not permitted unless expressly authorized in writing by Covered Entity.
3. Disclosure of PHI. Subject to any limitations in this Agreement, Business Associate may disclose
PHI to any third party persons or entities as necessary to perform its obligations under the Business
Arrangement and as permitted or required by applicable federal or state law. Further, Business
Associate may disclose PHI for the proper management and administration of the Business
Associate, provided that (i) such disclosures are required by law, or (ii) Business Associate: (a)
obtains reasonable assurances from any third party to whom the information is disclosed that it will be
held confidential and further used and disclosed only as required by law or for the purpose for which it
was disclosed to the third party; (b) requires the third party to agree to immediately notify Business
Associate of any instances of which it is aware that PHI is being used or disclosed for a purpose that
is not otherwise provided for in this Agreement or for a purpose not expressly permitted by the
Confidentiality Requirements. Additionally, Business Associate shall ensure that all disclosures of
PHI by Business Associate and the third party comply with the principle of "minimum necessary use
and disclosure,' i.e., only the minimum PHI that is necessary to accomplish the intended purpose
may be disclosed; provided further, Business Associate shall comply with Section 13405(b) of the
HITECH Act, and any regulations or guidance issued by HHS concerning such provision, regarding
the minimum necessary standard and the use and disclosure (if applicable) of Limited Data Sets. If
Business Associate discloses PHI received from Covered Entity, or created or received by Business
Associate on behalf of Covered Entity, to agents, including a subcontractor (collectively, "Recipients"),
Business Associate shall require Recipients to agree in writing to the same restrictions and conditions
that apply to the Business Associate under this Agreement. Business Associate shall report to
Covered Entity any use or disclosure of PHI not permitted by this Agreement, of which it becomes
aware, such report to be made within three.(3) business days of the Business Associate becoming
aware of such use or disclosure. In addition to Business Associate's obligations under Section 9,
Business Associate agrees to mitigate, to the extent practical and unless otherwise requested by
Covered Entity in writing or as directed by or as a result of a request by Covered Entity to disclose to
Recipients, any harmful effect that is known to Business Associate and is the result of a use or
disclosure of PHI by Business Associate or Recipients in violation of this Agreement.
4. Individual Rights Regarding Designated Record Sets. If Business Associate maintains a
Designated Record Set on behalf of Covered Entity, Business Associate shall (i) provide access to,
and permit inspection and copying of, PHI by Covered Entity or, as directed by Covered Entity, an
individual who is the subject of the PHI under conditions and limitations required under 45 CFR
§164.524, as it may be amended from time to time, and (ii) amend PHI maintained by Business
Associate as requested by Covered Entity. Business Associate shall respond to any request from
Covered Entity for access by an individual within five (5) days of such request and shall make any
amendment requested by Covered Entity within ten (10) days of such request. Any information
requested under this Section 4 shall be provided in the form or format requested, if it is readily
producible in such form or format. Business Associate may charge a reasonable fee based upon the
Business Associate's labor costs in responding to a request for electronic information (or a cost -
based fee for the production of non -electronic media copies). Covered Entity shall determine whether
a denial is appropriate or an exception applies. Business Associate shall notify Covered Entity within
five (5) days of receipt of any request for access or amendment by an individual. Covered Entity shall
determine whether to grant or deny any access or amendment requested by the individual. Business
Associate shall have a process in place for requests for amendments and for appending such
requests to the Designated Record Set, as requested by Covered Entity.
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5. Accounting of Disclosures. Business Associate shall make available to Covered Entity in response
to a request from an individual, information required for an accounting of disclosures of PHI with
respect to the individual in accordance with 45 CFR §164.528, as amended by Section 13405(c) of
the HITECH Act and any related regulations or guidance issued by HHS in accordance with such
provision. Business Associate shall provide to Covered Entity such information necessary to provide
an accounting within thirty (30) days of Covered Entity's request or such shorter time as may be
required by state or federal law. Such accounting must be provided without cost to the individual or to
Covered Entity if it is the first accounting requested by an individual within any twelve (12) month
period. For subsequent accountings within a twelve (12) month period, Business Associate may
charge a reasonable fee based upon the Business Associate's labor costs in responding to a request
for electronic information (or a cost -based fee for the production of non -electronic media copies) so
long as Business Associate informs the Covered Entity and the Covered Entity informs the individual
in advance of the fee, and the individual is afforded an opportunity to withdraw or modify the request.
Such accounting obligations shall survive termination of this Agreement and shall continue as long as
Business Associate maintains PHI.
6. Withdrawal of Authorization. If the use or disclosure of PHI in this Agreement is based upon an
individual's specific authorization for the use of his or her PHI, and (i) the individual revokes such
authorization in writing, (ii) the effective date of such authorization has expired, or (iii) the consent or
authorization is found to be defective in any manner that renders it invalid, Business Associate
agrees, if it has notice of such revocation or invalidity, to cease the use and disclosure of any such
Individual's PHI except to the extent it has relied on such use or disclosure, or where an exception
under the Confidentiality Requirements expressly applies.
Records and Audit. Business Associate shall make available to the U.S. Department of Health and
Human Services or its agents, its Internal practices, books, and records relating to the use and
disclosure of PHI received from, created, or received by Business Associate on behalf of Covered
Entity for the purpose of determining Covered Entity's compliance with the Confidentiality
Requirements or any other health oversight agency, in a time and manner designated by the
Secretary. Except to the extent prohibited by law, Business Associate agrees to notify Covered Entity
immediately upon receipt by Business Associate of any and all requests by or on behalf of any and all
federal, state and local government authorities served upon Business Associate for PHI.
8. Implementation of Security Standards: Notice of Security Incidents. Business Associate will use
appropriate safeguards to prevent the use or disclosure of PHI other than as expressly permitted
under this Agreement. Business Associate will implement administrative, physical and technical
safeguards that reasonably and appropriately protect the confidentiality, integrity and availability of
the PHI that it creates, receives, maintains or transmits on behalf of Covered Entity. Business
Associate acknowledges that the HITECH Act requires Business Associate to comply with 45 C.F.R.
§§ 164.308, 164.310, 164.312, 164.314, and 164.316 as if Business Associate were a Covered
Entity, and Business Associate agrees to comply with these provisions of the Security Standards and
all additional security provisions of the HITECH Act. Furthermore, to the extent feasible, Business
Associate will use commercially reasonable efforts to ensure that the technology safeguards
used by Business Associate to secure PHI will render such PHI unusable, unreadable and
indecipherable to individuals unauthorized to acquire or otherwise have access to such PHI in
accordance with HHS Guidance published at 74 Federal Register 19006 (April 17, 2009), or such
later regulations or guidance promulgated by HHS or issued by the National Institute for Standards
and Technology ("NIST") concerning the protection of identifiable data such as PHI. Business
Associate acknowledges and agrees that the HIPAA Omnibus Rule finalized January 25, 2013 at 78
Fed. Reg. 5566 requires Business Associate to comply with new and modified obligations imposed by
that rule under 45 C.F.R. §164.306, 45 C.F.R. § 164.308, 45 C.F.R. § 163.310, 45 C.F.R. § 164.312,
45 C.F.R. § 164.316, 45 C.F.R. § 164.502, 45 C.F.R. § 164.504. Lastly, Business Associate will
promptly report to Covered Entity any successful Security Incident of which it becomes aware. At the
request of Covered Entity, Business Associate shall identify: the date of the Security Incident, the
scope of the Security Incident, the Business Associate's response to the Security Incident and the
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identification of the party responsible for causing the Security Incident, if known. Business Associate
and Covered Entity shall take reasonable measures to ensure the availability of all affirmative
defenses under the HITECH Act, HIPAA, and other state and federal laws and regulations governing
PHI and EPHI.
9. Data Breach Notification and Mitigation.
a. HIPAA Data Breach Notification and Mitigation. Business Associate agrees to implement
reasonable systems for the discovery and prompt reporting of any "breach" of "unsecured
PHI" as those terms are defined by 45 C.F.R. §164.402 (hereinafter a "HIPAA Breach"). The
parties acknowledge and agree that 45 C.F.R. §164.404, as described below in this Section
9.1, governs the determination of the date of a HIPAA Breach. In the event of any conflict
between this Section 9.1 and the Confidentiality Requirements, the more stringent
requirements shall govern. Business Associate will, following the discovery of a HIPAA
Breach, notify Covered Entity immediately and in no event later than three (3) business days
after Business Associate discovers such HIPAA Breach, unless Business Associate is
prevented from doing so by 45 C.F.R. §164.412 concerning law enforcement investigations.
For purposes of reporting a HIPAA Breach to Covered Entity, the discovery of a HIPAA
Breach shall occur as of the first day on which such HIPAA Breach is known to the Business
Associate or, by exercising reasonable diligence, would have been known to the Business
Associate. Business Associate will be considered to have had knowledge of a HIPAA Breach
if the HI PAA Breach is known, or by exercising reasonable diligence would have been known,
to any person (other than the person committing the HIPAA Breach) who is an employee,
officer or other agent of the Business Associate. No later than seven (7) business days
following a HIPAA Breach, Business Associate shall provide Covered Entity with sufficient
information to permit Covered Entity to comply with the HIPAA Breach notification
requirements set forth at 45 C.F.R. §164.400 et seq. Specifically, if the following information
is known to (or can be reasonably obtained by) the Business Associate, Business Associate
will provide Covered Entity with: (i) contact information for individuals who were or who may
have been impacted by the HIPAA Breach (e.g., first and last name, mailing address, street
address, phone number, email address); (it) a brief description of the circumstances of the
HIPAA Breach, including the date of the HIPAA Breach and date of discovery; (iii) a
description of the types of unsecured PHI involved in the HIPAA Breach (e.g., names, social
security number, date of birth, address(es), account numbers of any type, disability codes,
diagnostic and/or billing codes and similar information); (iv) a brief description of what the
Business Associate has done or is doing to investigate the HIPAA Breach, mitigate harm to
the individual impacted by the HIPAA Breach, and protect against future HIPAA Breaches;
and (v) appoint a liaison and provide contact information for same so that the Covered Entity
may ask questions or learn additional information concerning the HIPAA Breach. Following a
HIPAA Breach, Business Associate will have a continuing duty to inform Covered Entity of
new information learned by Business Associate regarding the HIPAA Breach, including but
not limited to the information described in items (i) through (v), above.
b. Data Breach Notification and Mitigation Under Other Laws In addition to the requirements of
Section 9.1, Business Associate agrees to implement reasonable systems for the discovery
and prompt reporting of any breach of individually identifiable information (including but not
limited to PHI, and referred to hereinafter as "Individually Identifiable Information") that, if
misused, disclosed, lost or stolen, Covered Entity believes would trigger an obligation under
one or more State data breach notification laws (each a "State Breach") to notify the
individuals who are the subject of the information. Business Associate agrees that in the
event any Individually Identifiable Information is lost, stolen, used or disclosed in violation of
one or more State data breach notification laws, Business Associate shall promptly: (i)
cooperate and assist Covered Entity with any investigation into any State Breach or alleged
State Breach; (ii) cooperate and assist Covered Entity with any investigation into any State
Breach or alleged State Breach conducted by any State Attorney General or State Consumer
Affairs Department (or their respective agents); (iii) comply with Covered Entity's
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determinations regarding Covered Entity's and Business Associate's obligations to mitigate to
the extent practicable any potential harm to the individuals impacted by the State Breach; and
(iv) assist with the implementation of any decision by Covered Entity or any State agency,
including any State Attorney General or State Consumer Affairs Department (or their
respective agents), to notify individuals impacted or potentially impacted by a State Breach.
c. Breach Indemnification. Business Associate shall indemnity, defend and hold Covered Entity
and its officers, directors, employees, agents, successors and assigns harmless, from and
against all reasonable losses, claims, actions, demands, liabilities, damages, costs and
expenses (including costs of judgments, settlements, court costs and reasonable attorneys'
fees actually incurred) (collectively, "Information Disclosure Claims") arising from or related
to: (i) the use or disclosure of Individually Identifiable Information (including PHI) by Business
Associate in violation of the terms of this Agreement or applicable law, and (ii) whether in
oral, paper or electronic media, any HIPAA Breach of unsecured PHI and/or State Breach of
Individually identifiable Information by Business Associate. If Business Associate assumes
the defense of an Information Disclosure Claim, Covered Entity shall have the right, at its
expense and without indemnification notwithstanding the previous sentence, to participate in
the defense of such Information Disclosure Claim. Business Associate shall not take any
final action with respect to any Information Disclosure Claim without the prior written consent
of Covered Entity. Covered Entity likewise shall not take any final action with respect to any
Information Disclosure Claim without the prior written consent of Business Associate. To the
extent permitted by law and except when caused by an act of Covered Entity or resulting
from a disclosure to a Recipient required or directed by Covered Entity to receive the
information, Business Associate shall be fully liable to Covered Entity for any acts, failures or
omissions of Recipients in furnishing the services as if they were the Business Associate's
own acts, failures or omissions.
Covered Entity shall indemnify, defend and hold Business Associate and its officers,
directors, employees, agents, successors and assigns harmless, from and against all
reasonable losses, claims, actions, demands, liabilities, damages, costs and
expenses (including costs of judgments, settlements, court costs and reasonable
attorneys' fees actually incurred) (collectively, "Information Disclosure Claims")
arising from or related to: (i) the use or disclosure of Individually Identifiable
Information (including PHI) by Covered Entity, its subcontractors, agents, or
employees in violation of the terms of this Agreement or applicable law, and (ii)
whether in oral, paper or electronic media, any HIPAA Breach of unsecured PHI
and/or State Breach of Individually Identifiable Information by Covered Entity, its
subcontractors, agents, or employees.
U. Covered Entity and Business Associate shall seek to keep costs or expenses that the
other may be liable for under this Section 9, including Information Disclosure Claims,
to the minimum reasonably required to comply with the HITECH Act and HIPAA.
Covered Entity and Business Associate shall timely raise all applicable affirmative
defenses in the event a violation of this Agreement, or a use or disclosure of PHI or
EPHI in violation of the terms of this Agreement or applicable law occurs.
10. Term and Termination.
a. This Agreement shall commence on the Effective Date and shall remain in effect until
terminated in accordance with the terms of this Section 10, provided, however, that
termination shall not affect the respective obligations or rights of the parties arising under this
Agreement prior to the effective date of termination, all of which shall continue in accordance
with their terms.
b. Covered Entity shall have the right to terminate this Agreement for any reason upon thirty
(30) days written notice to Business Associate.
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c. Covered Entity, at its sole discretion, may immediately terminate this Agreement and shall
have no further obligations to Business Associate if any of the following events shall have
occurred and be continuing:
i. Business Associate fails to observe or perform any material covenant or obligation
contained in this Agreement for ten (10) days after written notice thereof has been
given to the Business Associate by Covered Entity; or
it. A violation by the Business Associate of any provision of the Confidentiality
Requirements or other applicable federal or state privacy law relating to the
obligations of the Business Associate under this Agreement.
d. Termination of this Agreement for either of the two reasons set forth In Section 10.c above
shall be cause for Covered Entity to immediately terminate for cause any Business
Arrangement pursuant to which Business Associate is entitled to receive PHI from Covered
Entity.
e. Upon the termination of all Business Arrangements, either Party may terminate this
Agreement by providing written notice to the other Party.
Upon termination of this Agreement for any reason, Business Associate agrees either to
return to Covered Entity or to destroy all PHI received from Covered Entity or otherwise
through the performance of services for Covered Entity, that is in the possession or control of
Business Associate or its agents. In the case of PHI which is not feasible to "return or
destroy," Business Associate shall extend the protections of this Agreement to such PHI and
limit further uses and disclosures of such PHI to those purposes that make the return or
destruction infeasible, for so long as Business Associate maintains such PHI. Business
Associate further agrees to comply with other applicable state or federal law, which may
require a specific period of retention, redaction, or other treatment of such PHI.
11. No Warranty. PHI IS PROVIDED TO BUSINESS ASSOCIATE SOLELY ON AN "AS IS" BASIS.
COVERED ENTITY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING,
BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, AND FITNESS FOR A
PARTICULAR PURPOSE.
12. Ineligible Persons. Business Associate represents and warrants to Covered Entity that Business
Associate (i) is not currently excluded, debarred, or otherwise ineligible to participate in any federal
health care program as defined in 42 U.S.C. Section 1320a-7b(f) ("the Federal Healthcare
Programs"); (ii) has not been convicted of a criminal offense related to the provision of health care
items or services and not yet been excluded, debarred, or otherwise declared ineligible to participate
in the Federal Healthcare Programs, and (iii) is not under investigation or otherwise aware of any
circumstances which may result in Business Associate being excluded from participation in the
Federal Healthcare Programs. This shall be an ongoing representation and warranty during the term
of this Agreement, and Business Associate shall immediately notify Covered Entity of any change in
the status of the representations and warranty set forth in this section. Any breach of this section shall
give Covered Entity the right to terminate this Agreement Immediately for cause.
13. Miscellaneous.
a. Notice. All notices, requests, demands and other communications required or permitted to
be given or made under this Agreement shall be in writing, shall be effective upon receipt or
attempted delivery, and shall be sent by (i) personal delivery; (ii) certified or registered United
States mail, return receipt requested; or (iii) overnight delivery service with proof of delivery.
Notices shall be sent to the addresses below. Neither party shall refuse delivery of any
notice hereunder.
If to Covered Entity:
Compliance Office
November 20. 2017 www.imanetrend.com Page 123
If to Business Associate:
ImageTrend Inc
Attn: Michael J MCBrady
20855 Kensinaton Blvd
Lakeville, MN 55044
14. Waiver. No provision of this Agreement or any breach thereof shall be deemed waived unless such
waiver is in writing and signed by the Party claimed to have waived such provision or breach. No
waiver of a breach shall constitute a waiver of or excuse any different or subsequent breach.
15. Assignment. Neither Party may assign (whether by operation or law or otherwise) any of its rights or
delegate or subcontract any of its obligations under this Agreement without the prior written consent
of the other Party. Notwithstanding the foregoing, Covered Entity shall have the right to assign its
rights and obligations hereunder to any entity that is an affiliate or successor of Covered Entity,
without the prior approval of Business Associate.
16. Severability. Any provision of this Agreement that is determined to be invalid or unenforceable will
be ineffective to the extent of such determination without invalidating the remaining provisions of this
Agreement or affecting the validity or enforceability of such remaining provisions.
17. Entire Agreement. This Agreement constitutes the complete agreement between Business
Associate and Covered Entity relating to the matters specified in this Agreement, and supersedes all
prior representations or agreements, whether oral or written, with respect to such matters. In the
event of any conflict between the terms of this Agreement and the terms of the Business
Arrangements or any such later agreement(s), the terms of this Agreement shall control unless the
terms of such Business Arrangements are more strict with respect to PHI and comply with the
Confidentiality Requirements, or the parties specifically otherwise agree in writing. No oral
modification or waiver of any of the provisions of this Agreement shall be binding on either Party;
provided, however, that upon the enactment of any law, regulation, court decision or relevant
government publication and/or interpretive guidance or policy that the Covered Entity believes in good
faith will adversely impact the use or disclosure of PHI under this Agreement, Covered Entity may
amend the Agreement to comply with such law, regulation, court decision or government publication,
guidance or policy by delivering a written amendment to Business Associate which shall be effective
thirty (30) days after receipt. No obligation on either Party to enter into any transaction is to be
implied from the execution or delivery of this Agreement. This Agreement is for the benefit of, and
shall be binding upon the parties, their affiliates and respective successors and assigns. No third
party shall be considered a third -party beneficiary under this Agreement, nor shall any third party
have any rights as a result of this Agreement.
18. Governing Law. This Agreement shall be governed by and interpreted in accordance with the laws
of the state in which Business Associate is located, excluding its conflicts of laws provisions.
Jurisdiction and venue for any dispute relating to this Agreement shall exclusively rest with the state
and federal courts in the county in which Business Associate is located.
19. Equitable Relief. The parties understand and acknowledge that any disclosure or misappropriation
of any PHI in violation of this Agreement will cause the other irreparable harm, the amount of which
may be difficult to ascertain, and therefore agrees that the injured party shall have the right to apply to
November 20, 2017 wwwJmaaetrendxom Page 124
a court of competent jurisdiction for specific performance and/or an order restraining and enjoining
any such further disclosure or breach and for such other relief as the injured party shall deem
appropriate. Such right is to be In addition to the remedies otherwise available to the parties at law or
in equity. Each party expressly waives the defense that a remedy in damages will be adequate and
further waives any requirement in an action for specific performance or injunction for the posting of a
bond.
20. Nature of Agreement: Independent Contractor. Nothing in this Agreement shall be construed to
create (I) a partnership, joint venture or other joint business relationship between the parties or any of
their affiliates, or (ii) a relationship of employer and employee between the parties. Business
Associate is an independent contractor, and not an agent of Covered Entity. This Agreement does
not express or imply any commitment to purchase or sell goods or services.
21. Counterparts. This Agreement may be executed In one or more counterparts, each of which shall
be deemed an original, but all of which together shall constitute one and the same document, in
making proof of this Agreement, it shall not be necessary to produce or account for more than one
such counterpart executed by the party against whom enforcement of this Agreement is sought.
Signatures to this Agreement transmitted by facsimile transmission, by electronic mail In portable
document format C.pdf") form, or by any other electronic means intended to preserve the original
graphic and pictorial appearance of a document, will have the same force and effect as physical
execution and delivery of the paper document bearing the original signature.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the Effective Date,
COVERED ENTITY:
Date! �ILVI I f
BUSINESS ASSOCIATE:
ImageTrend, Inc.
r,esiaem
(Title)
Date: 0 —
------------------------ --- --
EXHIBIT D — INSURANCE CERTIFICATE
Intentionally left blank
November 20, 2017 wwwJmaaetrend.mm Page 126
------------------------------- ------
EXHIBIT E — TAX EXEMPTION CERTIFICATE
CLIENT to provide completed Tax Exemption Form, Tax Exemption Certificate, or other applicable
documentation from the State Department regarding their Tax Exemption Status.
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