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IMAGETREND ELITE PRODUCT UPGRADE
SOFTWARE LICENSING AGREEMENT
CONTRACT NO.: 219370
BETWEEN
CITY OF OSHKOSH FIRE DEPARTMENT
101 COURT STREET
OSHKOSH,WI 54901
AND
IMAGETREND, INC.
20855 KENSINGTON BLVD.
LAKEVILLE, MN 55044 IMAGETREND
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OVERVIEW
IMAGETREND is excited to release its new product platform, ImageTrend Elite. This platform will support
the NEMSIS version 3 standard.
As part of this release to the new product platform, IMAGETREND has renamed its product offerings as
detailed below.
ExistingProduct Name New Product Name
Service Bride Ima eTrend Elite EMS
Rescue Bride Ima eTrend Elite Rescue
Field Bride Ima eTrend Elite Field
The recurring fees that each CLIENT pays today will continue forward, however they will be established
under the new product names. If CLIENT would like to consolidate the recurring fees, please contact
IMAGETREND and we will work with you to complete this.
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ELITE PRODUCT UPGRADE AGREEMENT
SOFTWARE AS A SERVICE, IMAGETREND HOSTED SOLUTION
This AGREEMENT(hereinafter referred to as this"Agreement") is made as of the date executed by the
last of the parties named below:
BETWEEN: IMAGETREND, INC., a Minnesota corporation (hereinafter"IMAGETREND")
AND: CITY OF OSHKOSH FIRE DEPARTMENT (hereinafter"CLIENT").
The CLIENT and IMAGETREND mutually agree to the following between City of Oshkosh Fire
Department and ImageTrend, Inc. for Software Licensing Agreement.
1. The purpose of this Agreement is for CLIENT to upgrade to ImageTrend's Elite Platform and
receive the product(s) and module(s) as outlined in Exhibit B Pricing Agreement below.
2. This Agreement includes the following: Exhibit A—Software Licensing Agreement, Exhibit C—
ImageTrend Elite Upgrade Transition Process, Exhibit D-Service Level Agreement,Exhibit E—
HIPPA Business Associate Agreement and Exhibit F—Tax Exemption Certification.
3. Product functionality has been reviewed and no customization is anticipated. Out of Scope
customization is$130.00/hour and performed only under mutually agreed upon Statement of
Work.
4. IMAGETREND strongly advises against live data entry by CLIENT until your ImageTrend
Representative authorizes you to do so.
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WITNESS THE EXECUTION HEREOF on the day and year last written below.
APPROVED AS:
"CITY OF OSHKOSH FIRE EPARTMENT" "IMAETREND"
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By: By:
Name: / ti r7 ; ^c,4 Name: MicKaeI .,A°t cBrad
Title:
�--r dT Title: President
Dated: l i ( � Dated:
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EXHIBIT A—SOFTWARE LICENSING AGREEMENT
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'Perso n nel.
"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.
"Custom Development" means that CLIENT contracts IMAGETREND through a signed and accepted
Statement of Work to customize the software. Each CLIENT shall have the non-exclusive license to utilize
such software. Such software may then become a part of the core product and be distributed. Custom
Development may require ongoing support and/or hosting and shall be subject to support and/or hosting
fee increases. IMAGETREND maintains ownership of all Custom Development.
"ePCR" means an Electronic Patient Care Report.
"ImageTrend Elite Data Marts" means the relational database(s) that contain an enhanced and
simplified reporting-ready format of the transactional data collected within ImageTrend Elite. The Elite
Data Marts are available for use with the ImageTrend Elite Reporting Tools.
ImageTrend Elite Reporting Tools" means the Transactional Report Writer, Visual Informatics,
Analytical Chart Reporting Tool and Analytical Tabular Reporting Tool in the Software that are based on a
set of Elite Data Marts.
"Incident" means any time 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.
"Reference" means referral in the promotion of IMAGETREND'S software to other potential CLIENTS.
"Run(s)" means an incident where the CLIENTS 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
Licensed Information.
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"Statement of Work" means the technical document which outlines mutually agreed upon system
specification for Custom Development and associated costs, payment terms and acceptance procedures.
This document requires CLIENT acceptance and signature prior to beginning work.
"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.
"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 annual 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 D. 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.
B. IMAGETREND ELITE DATA MARTS NON-EXCLUSIVE USE LICENSE
In accordance with the terms and conditions hereof, IMAGETREND agrees to grant the use of the
ImageTrend Elite Data Marts only via ImageTrend Elite Reporting Tools as included and detailed in
Exhibit B. This AGREEMENT does not give the CLIENT the rights to access and query the
ImageTrend Elite Data Marts directly using SQL query tools, reporting tools, ETL tools, or any other
tools or mechanisms. Direct access to ImageTrend Elite Data Marts is available via separately-priced
product and service offerings from IMAGETREND. This Section 3.6, is subject to the Non-Exclusive
Use License as covered in Section 3.A and terms of this AGREEMENT.
C. 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,
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.
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CLIENT shall not, nor shall CLIENT permit any third-party to, modify, reverse engineer, disassemble,
or decompile 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.
D. DATA OWNERSHIP AND DATA PROTECTION.
All CLIENT data collected with IMAGETREND Software remains at all times the property of the
CLIENT. IMAGETREND will not to use or make available any personally identifiable information other
than for administering the CLIENT's account and collecting usage statistics in order to improve our
products and services specifications. During the term of this AGREEMENT and after termination or
expiration of this AGREEMENT, IMAGETREND will not in any way transfer to any third party or use in
direct or indirect competition with the other party any information or data posted by CLIENT's and
others on IMAGETREND's website and acknowledges that all such information is confidential.
CLIENT shall have access to creative tools within the Elite Software platform. Use of these features is
conditioned upon assignment to IMAGETREND of all copyrights in any work created within and using
the Elite software platform, the terms of use for such creative tool features will prompt all users upon
first use to agree to terms of use; those terms are hereby incorporated as part of this AGREEMENT
and valid whether accepted before or after execution of this AGREEMENT. Please contact
IMAGETREND for a copy of these terms prior to final acceptance of this AGREEMENT, if necessary.
E. CLIENT DATA.
Within thirty (30) days after the expiration of this AGREEMENT, the termination of this AGREEMENT,
or IMAGETREND is no longer in business, IMAGETREND will deliver to the CLIENT its data, in
machine readable format, on appropriate media, at the CLIENT's option. If the CLIENT wants the
data to be delivered in a medium other than tape or CD, IMAGETREND shall do its best to
accommodate the CLIENT, provided the CLIENT shall provide the medium on which the data is to be
provided and shall pay for any additional cost incurred by IMAGETREND in accommodating this
request.
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 Elite 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
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potentially owned by a number of nonprofit third party 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 detailed 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.
C. IMPLEMENTATION SERVICES
1. IMAGETREND shall provide CLIENT with initial services such as the system configuration
and installation into the IMAGETREND hosting infrastructure.
2. "Train-the-trainer" training for administrators as detailed in Exhibit A. Additionally, online
training videos and user guides in electronic format will be made available.
SECTION 6. MAINTAINENCE 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.
1. IMAGETREND will perform price increases of the recurring fees. The first price increase
will occur with the fees due for Year 3. 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 are as detailed in the attached Exhibit A.
C. At anytime 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
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an item-by-item basis. The CLIENT may contract Custom Development by IMAGETREND for
additional fees as outlined and agreed to in a signed and accepted Statement of Work.
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
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.
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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
which are the result of accident, abuse, misapplication, extreme power surge or extreme
electromagnetic field.
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.
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.
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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
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.
SECTION 14. COOPERATIVE USE
Public and nonprofit agencies that have entered into a Cooperative Purchasing Agreement with the
CLIENT are eligible to participate in any subsequent Agreement. The parties agree that these lists are
subject to change. Any such usage by other municipalities and government agencies must be in accord
with the ordinance, charter, rules and regulations of the respective political entity and with applicable
State and Federal laws.
Any orders placed to, or services required from IMAGETREND will be requested by each participating
agency. Payment for purchases made under this Agreement will be the sole responsibility of each
participating agency. The CLIENT shall not be responsible for any disputes arising out of transactions
made by others. IMAGETREND shall be responsible for correctly administering this Agreement in
accordance with all terms, conditions, requirements, and approved pricing to any eligible procurement
unit.
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.
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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: City of Oshkosh Fire Department
101 Court Street
Oshkosh, WI 54901
ATTENTION: Timothy Franz
TO IMAGETREND: Ima9 eTrend, Inc.
20855 Kensington Blvd.
Lakeville, MN 55044
ATTENTION: Mike McBrady
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 21. 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
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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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EXHIBIT B—PRICING AGREEMENT
Each client will get an included number of Project Management hours as identified below. Any additional
hours may be purchased at the rates listed below.
IMAGETREND will utilize a multi-faceted implementation process to best fit the needs of the CLIENT and
availability of system functionality. This process will include one-on-one phone/virtual correspondences
with implementation staff, live webinar trainings and supplemental educational curriculum such as training
documents, quick guides and pre-recorded trainings.
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RECURRING FEES PRICING AGREEMENT
Descri tion.
Units, Price Extended
Elite Platform
ImageTrend Elite Platform Upgrade 1 Included Included
ImageTrend Elite Rescue Upgrade Implementation Package 1 Included Included
` 1-10,000 annual EMS incidents: Project Management hours
include 4 hours with an Implementation staff member 1 Included Included
ImageTrend Elite Rescue Annual SaaS Fee (previously known
as Rescue Bridge- invoiced annually in January of each year as 1 $18,756.00 $18,756.00
contracted
ImageTrend Elite Field Site License Upgrade 1 Included Included
Other Contracted Recurring Fees
Service Bridge CAD Integrations Support 1 $500.00 $500.00
Initial Description Units Price 11 Extended
,Additional Optional Items
Upgrade to Hospital Hub Setup and Access (previously known
as Hospital Dashboard) TBD
Number of Hospitals Included: 5
Upgrade to Hospital Hub Annual Support(previously known TBD
as Hospital Dashboard
Visual Informatics—Analytics (EMS Cube) TBD
Visual Informatics—Analytics (EMS Cube)—Annual Support TBD
Visual Informatics—Analytics (Fire Cube) TBD
Visual Informatics—Analytics (Fire Cube)—Annual Support TBD
Project Management hours-block of 2 hours (Billed at
IMAGETREND's standard rate of$125.00/hour) $250.00
Onsite Training Sessions (Billed at IMAGETREND's standard
rate of$1,000/day, 1 Trainer) $1,000.00
Onsite Training Travel per Trainer(Billed at IMAGETREND's
standard rate of$1,500/day, 1 Trainer) $1,500.00
Custom Development requires separate Statement of Work—
(Billed at IMAGETREND's standard rate of$130.00/hour) $130.00
*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
rices above are valid for one year from contract signature.
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Payment Terms:
a. Payment Terms are net 30 days and based upon the existing invoice arrangement.
b. The recurring Annual Fees will be billed annually in advance.
c. 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.
d. 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
e. IMAGETREND will invoice sales tax to non-exempt CLIENTS where applicable.
Pricing escalation factors:
1. IMAGETREND will perform price increases of the recurring fees. The first price increase will
occur with the fees starting in 2017. These price increases will occur once every year and may
not exceed 3% of the price then currently in effect.
2. All Annual SaaS Fees are based upon anticipated usage and are subject to an annual usage
audit, which may affect future fees.
3. 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.
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---------------------------------------
j EXHIBIT C—IMAGETREND ELITE UPGRADE TRANSITION PROCESS
This document outlines the Elite Upgrade Transition Process for IMAGETREND and the CLIENT.
INCLUDED IMPLEMENTATION SERVICES
The scope of this migration is to provide a seamless multi-faceted experience for the CLIENT. The
CLIENT will receive all necessary documentation to support both the migration process with respective
timelines and educational materials. This project is dependent on active collaboration and clear
communications between both CLIENT and IMAGETREND.
Implementation Services include:
a) IMAGETREND will collaborate with the CLIENT to facilitate an effective implementation process
including system usage, data migration, and training. A gap analysis will be conducted between
CLIENT's existing NEMSIS v2.2.1 database and IMAGETREND's Elite development roadmap to
best assess feasibility of migration, timeline expectations, risk management and fostering
transparency of communication between IMAGETREND and the CLIENT.
b) IMAGETREND will utilize amulti-faceted implementation process to best fit the needs of the
CLIENT and availability of system functionality. This process will include one-on-one
€!; phone/virtual correspondences with implementation staff, live webinar trainings and supplemental
educational curriculum such as training documents, quick guides and pre-recorded trainings.
c) IMAGETREND will provide migration of select demographic and resource data from NEMSIS
v2.2.1 to the NEMSIS v3 product platform.
d) IMAGETREND will provide reporting capabilities for NEMSIS v2.2.1 and NEMSIS v3, including
canned reports that will be available for NEMSIS v3
e) Any existing Ad Hoc Reports will need to be recreated by the CLIENT for NEMSIS v3.
f) Standard integrations which have annual support fees will be covered under the support
agreement. IMAGETREND will work with the CLIENT to determine the schedule and timeline of
each integration.
g) Any additional training for the Elite upgrade can be contracted separately.
ADDITIONAL IMPLEMENTATION SERVICES TO BE PERFORMED BY CLIENT
IMAGETREND will provide migration of select demographic and resource data from NEMSIS v2.2.1 to
the NEMSIS v3 product platform. The following list provides a sample of key set up items needed to be
performed by the CLIENT:
■ Run Form templates Report Writer—Adhoc Reports
■ Data Element Manager Active Protocols
■ Data Element mappings (i.e. billing integrations) Auto-Narrative
■ Validation Rules CMS Billing Calculation Rules
■ PDF Reports Medications/Procedures By Certification
■ Power Tools Level
PROJECT COMPLETION
The Elite Upgrade Transition Process is considered complete once CLIENT is collecting live NEMSIS v3
data and IMAGETREND provides the Acceptance Form for CLIENT signature. Upon completion, the
CLIENT will be transferred to IMAGETREND's Support Team for any additional needs and will receive
communications of newly released functionalities as they are available.
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----------------------------- -------- ----------- -----
EXHIBIT D—SERVICE LEVEL AGREEM ENT----------------------------------------------------------------
SOFTWARE AS A SERVICE (SAAS)
VERSION 4.0
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 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 SaaS.
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 Compellent SAN has a fiber channel backend, currently hosts 8TB of storage, 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.
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 2012
o Microsoft Windows Server 2012
• Redundant Power Supplies
• Off-Site Idle Emergency Backup Servers (optional)
• Sonicwall VPN Firewall
• 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 INV 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
2. 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 Monday through Friday from 7:00 am to 6:00 pm CST via
the Support Suite, email or telephone.
Support Suite: www.imagetrend.com/support
Email: support@imagetrend.com
Toll Free: 1-888-730-3255
Phone: 952-469-1589
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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Action Expectation:'
Anticipated Error,
resolution
notification after
IMAGETREND
Notification Return Call to
Acknowledgement: Licensee of
IMAGETREND;Return Call Notification
to Licensee after initial Acknowledgement
Severity Level Examples of each Severity Level: notification of an Error of an error.
High/Site Down -Complete shutdown or partial shutdown Within one(1)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 m tually agreed upon.
Service 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 I 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 notified 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
specific 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.
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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.
i
E
i
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r----------------------_____–_____–______
� EX��I��IT �� - ��IPA�� ��UG|NEGS ASSOCIATE AGREEMENT
---------------------
BUSINESS ASSOCIATE AGREEMENT
This Business Associate Agreement("Agreement ) dated . 201
` —�
A`h
^EfncUveOaba�. ksentered into bvand between City of '
corporation (the"Covered Enhtv^) and |mogeTrend' Inc. aMinnesota corporation (the"Business
o
WHEREAS, Covered Entity and Business Associate have entered into, or are entering into, or
may subsequently enter
into, agreements or other documented arrangements (c�oUeutive|y, the"Business oaAnangenenbe^) purauanttowhichBua/neonAaoociabsnayprovideproductsormervi--aforCovensd
Entity that require Business Associate toaccess, create and use health information �hatisprotected byntabs and/or federal law; and
WHE8iEAS, pursuant to the Administrative Simplification provisions of the Health Insurance
Portability and Accountability Act of 1996 ("H1P/K). the U.G. Department ofHealth & Human Services
("HH8") promulgated the Standards for Privacy ofIndividually Identifiable Health Information /the"Phvaoy
3tandondo^>. at 45 C.F.R. Pada 160 and 184, requiring certain individuals and entities
iee subject`bo the
Privacy Standards (each a "Covered Entib". nrcollectively, "Covered EnUtiea^> boprob*ct^the pr�aoyof
oedainindividuaUyidenU�ab|ehealth infonneUon ("Protecb�dHealth InfonnaU 'n"` or^PH/"); and
WHEREAS. pursuant to H|PAA, HHG has issued the Security Standards 8he^Senu�x
8handando^\. at 45 C.F.R. Pada 180. 162 and 164. for the protection of' electronic (the
health
informuUon ("EPH/''); 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 o^buainena 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 orEPH|; 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 H|TECHAct requirements directly tobusiness 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 oofollows:
1. Business Associate Obligations. Business Associate may receive from Covered Entity, orcreate
or receive on behalf of Covered Entity, health information that is protected under applicable state
and/or federal |avv, including without |innibsUon. PHI and EPH/. 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 toPHI herein shall beconstrued toinclude EPH|. Business
Associate agrees not touse ordisclose (or permit the use ordisclosure o '� PHI inamanner that
would violate the Confidentiality Requirements if the PHI �na 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 (i) 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
e 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.
7. 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 Securitv 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 EPHL
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 HIPAA 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); (ii) 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 indemnify, 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.
i. 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.
ii. 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
ii. 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.
n
e. Upon the termination of all Business Arrangements, either Party may
terminate this
Agreement by providing written notice to the other Party.
f. 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
i 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.
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If to Covered Entity:
Compliance Office
If to Business Associate:
ImaoTrend, Inc.
Attn., Michael J. McBrady
20855 Kensington 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 30 201604G4er-3z0-16 www.imagetrend.com P a g e 126
^
a court of competent jurisdiction for specific performance and/or an orderrestraining and enjoining
any such further disclosure u/ breach and for such other relief~~the ^injured party -- --'
appropriate.' Such right is tobein addition to the remedies m � otherwia available to the parties law �
i equity. Each pa '
' expressly waives the defense that a remedy in damages willbe adequate and i
further waiveseny requirementinanaction for specific-performance orinjunction for the posting ofo |
bond. �
i
20. Nothing in this Agreement shallbe construedb/
create (i) a partnership,joint venture or other joint business relationship between the parties rany of
their affiliates, or(ii)'arelationship cf employer and employee between the parties. ousx/vsu
Associate isonindependent contnaobor. andnotanogantofCoveredEntih/. This Agreement does
not express orimply any commitment topurchase orsell goods orservices.
21. Counterparts. This Agreement may beexecuted inone nrmore counterparts, each ofwhich shall
be deemed an original, but all ofwhich together shall constitute one and the same document. |n
making proof of this Agreement, itshall not benecessary hoproduce oraccount for more than one
such counterpart executed by the party against whom enforcement of this Agreement is sought.
Signatures to this Aoreeman[transmitted by facsimile transmission, by electronic mail in portable
docunlentformat(".-' df') fonn. orbyany other electronic means intended topnsaemethe original
graphic and pictorial appearance ofadocument, will have the same force and effect oaphysical
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: BUSINESS ASSOCIATE:
"CITY OFOSHKOSH FIRE DEPARTMENT" ''|KAAGETREND"
By: By:
-\
(Print or Type Name) (Print or Type
President
CityManager
(Title)
)
Pamela K. UUrlg, City t|erK /
'Trend Larson, qFFin nce Director
- JO'� A. LOreO%�"/ �ity Attorney
| Puge |27
'
K
�
r � 7Qdr
1 � 32 1