HomeMy WebLinkAboutC-5746-2 - Piggyback Agreement (to County of Orange Agreement)X
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% PIGGYBACK AGREEMENT
V
Piggyback Contract
("Master Contract") I Number
This Piggyback Agreement (hereinafter referred to as this "Agreement" or "Piggyback") is binding as of
the date executed by the last of the parties named below:
BETWEEN: ImageTrend, LLC, a Minnesota corporation (hereinafter "ImageTrend")
AND: City of Newport Beach (hereinafter "Client")
The Client and ImageTrend mutually agree establish a contractual relationship between the City of
Newport Beach and ImageTrend, LLC based on the terms first established between County of Orange
("System Administrator") and ImageTrend.
Purpose. The purpose of this Piggyback is to procure the following items as outlined below in the Price
Sheet attachment. The good delivery date or service period(s) will begin on the date of the last signature
hereto ("the Effective Date"), and shall terminate on October 31, 2025, unless terminated earlier as set
forth herein.
Master Agreement Incorporated by Reference. The body of the Master Contract with the exception of
Section P Changes and Section 19 Notices as well as the attachments and exhibits, is hereby
incorporated by reference as the terms for this Piggyback. The attachments and exhibits to this
Agreement replace the exhibits and attachments of the Master Contract, for purposes of this
Agreement. Where the System Administrator's name appears in the Master Contract, for purposes of
this Agreement, all instances are replaced with the Client's name as detailed in this Agreement. The
attachments and exhibits to this Agreement, and the incorporated body of the Prime Contract as
detailed in this section, form the complete Agreement between the Parties related to the topics herein.
System Administrator's Rights. To the degree this Piggyback Agreement is made with Client to use
functionality or make decisions regarding the modification, disposition, operation, usage, or non -usage
of goods or services originally procured for Client by System Administrator or other party to the Master
Agreement (e.g. System Administrator's ImageTrend provided software systems), Client's rights are
subordinate to those of the parties to the Master Contract. To the degree Client's requests require
modification or otherwise impact the parties to the Master Contract, Client must seek and obtain
written permission from the affected parties in the Master Contract (i.e. System Administrator). Should
System Administrator deny this permission, ImageTrend may rightfully withhold performance under this
Agreement to the extent it is not permitted by System Administrator, or not permitted by law or
regulation in ImageTrend's sole interpretation. CLIENT is advised ImageTrend is a Business Associate
and/or under data confidentiality provisions to the System Administrator and has duties under HIPAA
and other data privacy laws which may not be waived ormodified without System Administrator's
written consent.
Out of Scope. Any service or good not described herein is out -of -scope. Out of Scope custom software
development is $225.00/hour and performed only under mutually agreed upon Statement of Work.
Other goods and services are available via separate quote from ImageTrend. Compensation for all
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services performed in accordance with this Agreement, shall not exceed Twenty Five Thousand Dollars
and 00/100 ($25,000.00), without prior written amendment to the Agreement.
IN WITNESS WHEREOF: the undersigned parties, each having authority to bind their respective
organizations, hereby agree.
Client
ImageTrend
Signature:4
�� Signature:
Print Name: (f)P� 13 Print Name:
Title: `1F-\\2--L C\'� \C-�- Title:
Date:
APPROVED AS TO FORM:
CITY AITORNEY'S OFFICE
Date: 7 / l K
By:Von C. karp,City Attorney
Date:
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services performed in accordance with this Agreement, shall not exceed Twenty Five Thousand Dollars
and 00/100 ($25,000.00), without prior written amendment to the Agreement.
IN WITNESS WHEREOF: the undersigned parties, each having authority to bind their respective
organizations, hereby agree.
Client ImageTrend
Signature: Signature: dulL
Print Name: Print Name: :�pStpk r 617raw
Title: Title: Cy 0
Date: Date: 7 D�02L1
APPROVED AS TO FORM:
CITY AT TORNEY'S OFFICE
Date, '7/i</?`4
By: ck�
on C. arp, Cite P,'fnrneY
-71 L5 011-Dc,
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PRICE SHEET AND WORK ORDER ATTACHMENT
The prices below are based on the following SaaS transaction volumes, as provided by Client:
13,500 Incidents annually
Recurring Fees
Total Recurring Fees: $12,000.00
TOTAL YEAR 1: $12,000.00
Send Invoices To:
Raymund Reyes
rreyes@nbfd.net
100 Civic Center PO Box 1768
Newport Beach, California 92658
Payment Terms:
1. "One Time Fees" are due once upon contract signature.
"Recurring Fees" are annual fees which recur each year. They are due on each anniversary of the
fee, with the start date beginning upon contract signature.
3. The Recurring Fees will escalate in price annually by 7% beginning one year from the last
signature hereto and each year thereafter.
4. ImageTrend may temporarily suspend performance (e.g. cease to provide access, hosting,
support) due to Client's breach of contract provided Client shall have 30 days to cure such
breach before ImageTrend may suspend performance.
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.
6. All Annual SaaS Fees are based upon anticipated transaction volumes (as provided by Client) and
are subject to an annual usage audit. ImageTrend reserves the right to increase fees in
accordance with increased transaction volume per the Unit Price listed in the tables above.
7. ImageTrend will not be responsible for third -party fees related to this Agreement unless
specifically outlined by this Agreement.
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SOFTWARE LICENSING TERMS ATTACHMENT
To the degree any Work Order involves licensing ImageTrend Software, the following terms shall apply:
"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(s)" means an instance where the Client sends a vehicle or emergency responder to a situation
requiring emergency response, as measured by the number of incident reports within ImageTrend
Software systems.
"Licensed Information" means other Deliverables provided to Client by ImageTrend relating to the
operation or design of the Software, or other Deliverables provided to Client by ImageTrend which are
common to ImageTrend (e.g. such Deliverables are not unique to Client). A copy of the software
specification Licensed Information is available within the Software labeled as "ImageTrend University."
"The Software" means the sum of all software licenses granted by this Agreement or Work Order hereto
as provided in Section 1 below.
SECTION 1. GRANT OF LICENSE TO SOFTWARE.
Each Work Order for the sale of Software Licenses shall outline which of the below licenses are being
granted by the Work Order. The license selection will be evidenced by the title of each SKU in the Work
Order, e.g. "Elite EMS SaaS" shall be licensed under the Software as a Service License below. If the
license is not apparent by the name of the SKU, then the license shall default to Software as a Service.
ImageTrend may discontinue or replace a license in this table by providing Client reasonable written
notice of the change. Replacing this table shall not have the effect of revoking previously agreed
licenses, rather, ImageTrend's right to replace this table shall apply to only future Work Orders.
Software as a Service
ImageTrend hereby grants Client a non-exclusive, non -transferable license to use the
License (SaaS) or
ImageTrend Software product(s) listed in the Work Order for such time as listed in said
Integration as a
Work Order. During the term of the Work Order, the Client shall have access to the
Service (IaaS)
Software, which will be installed on servers at the ImageTrend hosting facility and
("SaaS")
subject to the Service Level Agreement attached. 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.
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ImageTrend Hosted ImageTrend will grant Client a non-exclusive, non -transferable, perpetual use license
License ("License") without rights of resale or sublicensing, to the ImageTrend Software product(s) listed in
the Work Order. 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. 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 Hosted ImageTrend will grant Client a non-exclusive, non -transferable, perpetual use license
License without rights of resale or sublicensing, to the ImageTrend Software product(s) listed in
("on Premise the Work Order. Client shall have access to the Software, which will be installed on
License") servers at the Client hosting facility and subject to the attached Service Level Agreement.
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.
Initial set up will require direct access to Client servers by ImageTrend personnel.
However, after the installation is complete, management of non- ImageTrend software,
operating systems, ancillary systems and the responsibility for keeping non- ImageTrend
software updated will be the sole responsibility of Client. ImageTrend disclaims any and
all liability arising out of out-of-date or otherwise insufficiently maintained non-
ImageTrend software or hosting environment. ImageTrend has no duty to maintain the
Client's hosted environment's cybersecurity. Client agrees to ensure that ImageTrend
will have sufficient server access to fulfill ImageTrend's duties hereunder. Maintenance
of Client Hardware, physical environment, storage, processing, patching, operating
system maintenance, network device maintenance, Client 3rd party licenses (as outlined
below), or any other task which is required to maintain the Client application hosting
environment and is not directly arising out of a requirement of or defect to the
ImageTrend application(s) are the sole responsibility of Client. It will not be ImageTrend's
responsibility to maintain or resolve problems with Client's hosted environment.
ImageTrend's sole responsibility shall be to provide application support for ImageTrend
developed applications. Tasks which are ultimately discovered to be maintenance of the
Client Hosting environment may be charged to Client at ImageTrend's out -of -scope rate.
SECTION 2. 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 under Client's control to, copy, reverse engineer,
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
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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
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.
SECTION 3. IMAGETREND ELITE DATA MARTS NON-EXCLUSIVE USE LICENSE.
In accordance with the terms and conditions hereof, ImageTrend hereby grants the use of the
ImageTrend Elite Data Marts only via ImageTrend Elite Reporting Tools, unless an "Elite Data Mart
License" is included and detailed in a Work Order. Absent that license, this Agreement does not give the
Customer 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 only available via the aforementioned separately -priced product and service offering from
ImageTrend.
SECTION 4. INSTALLATION, INTRODUCTORY TRAINING AND DEBUGGING.
IMPLEMENTATION. 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 known as
"Implementation". During Implementation, Client must make available sufficient time and resources as
is necessary to accomplish the milestones and tasks per the party's project plans (as applicable),
typically between 4 and 15 hours a week. Depending on Client's objectives, Client may need to allocate
more time or resources to achieve Client's desired timelines.
TRAIN THE TRAINER. ImageTrend may provide "Train -the -trainer" training for administrators as detailed
in each Work Order. Additionally, online training videos and user guides in electronic format will be
made available via ImageTrend University.
INSTRUCTIONS. ImageTrend will provide installation instructions and assistance for installation of the
Software on the Servers appropriate to the License selection in the Work Order per the table above at
(e.g. Client Hosted on premise license) as detailed in Service Level Attachment, below.
SOFTWARE SUPPORT. ImageTrend shall provide Software Support as detailed in the Service Level
Attachment, below.
TRAINING USAGE AND EXPIRATION. When applicable, the training line items and quantities as detailed
in price table attached must be delivered within 2 years of the Effective Date. It shall be Client's
responsibility to request the training session(s). Training not used within the 2 year cut-off shall expire
and no refund or credit will be payable to Client.
SECTION 5. SOFTWARE WARRANTIES.
PERFORMANCE WARRANTY. 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 modification or change to the
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Software in any manner outside of the configuration available within the Software's built-in
functionality. This warranty does not apply to data extracted from the system.
OWNERSHIP WARRANTY. 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.
LIMITATIONS ON WARRANTY. All of ImageTrend's obligations under this Section 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 usage which does not conform with ImageTrend's instructions as
provided by ImageTrend in the Licensed Information. 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 of a Client device. In addition to any other
limitation on warranty or liability; Client's sole remedy for breach of warranty related to or arising out of
the Software, or a defect with the Software, shall be at Client's option 1) repair of the Software or
defect, 2) termination of this Agreement for convenience as outlined elsewhere in this Agreement.
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 6. MAINTENANCE.
ImageTrend shall provide scheduled updates and new releases for the Software, as well as defect
correction as needed per the Service Level Agreement, attached for so long as Client has contracted for
support (as indicated by a recurring fee containing the product name and word 'Support'). Specific out -
of -scope system enhancement requests are excluded from support. Should Client desire specific source -
code level modifications to the system, Client may submit a request to ImageTrend's UserVoice page at
https://lmageTrend.uservoice.com/.
SECTION 7. RETURN OF DATA.
Upon termination of this Agreement for any reason, Client may request ImageTrend provide to Client a
copy of Client's data. ImageTrend will produce this data by first using relevant export functionality
provided by the application, e.g. for ImageTrend Elite the data would be produced as a NEMSIS Version
3 XML file(s), or by other native data export format should the application provide no export
functionality. ImageTrend may redact or remove ImageTrend trade secret and confidential information,
such as database schema design details, or data which is used solely in an operational or administrative
fashion (e.g. data which was never entered by Client end -users). For clarity, ImageTrend may not redact
or remove data that Client or Client's end -users entered. ImageTrend will provide this exported data to
Client via secure electronic transfer, such as SFTP/FTPS. ImageTrend shall have 90 days from Client's
request to produce the native data export for Client. Should Client desire the data to come in any
alternative format, or be in any way different than as described in this section, Client must request those
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services from ImageTrend separately on a Time and Materials basis under its own time frame.
ImageTrend will make efforts to accommodate Client's request, but ImageTrend is under no obligation
to do so.
SECTION 8. IMAGETREND ELITE AUTHORIZED USERS AND SCOPE OF USAGE
This Grant of License is strictly conditioned on the Software being used by only Authorized Users.
ImageTrend may audit Client's Software, users, and usage to ensure compliance with the scope of usage
detailed by this Agreement, in ImageTrend's discretion. Non-compliance with the scope of usage shall
be considered a material breach.
If this Agreement is for the licensing of ImageTrend Elite EMS, the following scope of usage and
Authorized User definitions aooly.
Private Agency
Public Agency, County,
Region, or City for its own
employed EMS workers
("Public Agency")
Hospital or Health
Network
Client responds to emergency
medical incidents for -profit or not -
for -profit and the Client is not a
Governmental Entity.
Client responds to emergency
medical incidents and transports
patients therefrom and is a
Governmental Entity
Client is a 1) hospital, 2) health
network, 3) or other medical
institution that provides care which
does not involve responding to
emergency medical incidents and
transporting patients therefrom as a
primary service of the organization;
and Client is recognized and licensed
as such by the Client's governing
State
State, County, Region, City Client is a Governmental Entity with
for its constituents authority or an official mandate to
Group Purchase (Multi -
Agency)
Financing Party (e.g. billing
company) on behalf of
Agency/City/County third
party beneficiary
improve, facilitate, organize, surveil,
investigate, report, collect reports
of, or otherwise govern public health
matters; or another entity acting
under a grant or contract of and for
equivalent authority
Client(s) are a plurality of Private
Agencies and/or Public Agencies
Client is an entity which does not
respond to emergency medical
incidents or provide for the care or
transportation of patients; rather
Client is an entity who procures or
pays for a third party beneficiary
who is a Private or Public Aeencv.
All employees & contractors of Client who
respond to emergency medical incidents
in the regular scope of their employment
All employees & contractors of Client who
respond to emergency medical incidents
in the regular scope of their employment
All employees & contractors of Client who
respond to emergency medical incidents
in their regular scope of employment at or
from the named Hospital brick -and -
mortar locations. If the specific brick -and -
mortar location(s) is not named in a Work
Order, then it shall be interpreted as the
brick -and -mortar location from which the
Client primary contact, Raymund Reyes or
their successor, conducts their job duties
most frequently.
Licensed individuals within Client's legal or
governing jurisdiction and geographic
boundary, who to respond to emergency
medical incidents in the regular scope of
their employment, and not individuals
whose primary job duty involves law
enforcement.
All employees & contractors of each
named organization, who respond to
emergencv medical incidents
All employees & contractors of third party
beneficiary Public or Private Agency, who
respond to emergency medical incidents
in the regular scope of their employment.
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SERVICE LEVEL AGREEMENT ATTACHMENT
ImageTrend is committed to offering exceptional levels of service to our customers. This Service
Level Agreement ("SLA") guarantees your website or application's availability, reliability and
performance. This SLA applies to any site or application hosted on our network.
1. Customer Support
ImageTrend is committed in providing an exceptional level of customer support. ImageTrend's
servers are monitored 24 hours per day, 7 days per week, 365 days per year and our support
staff is available via phone (888.469.7789) and email (www.imagetrend.com/support) as posted
on the company's website. ImageTrend works to promptly resolve all issues reported by
customers, and will acknowledge the disposition and potential resolution according to the chart
below:
High/Site Down - Complete shutdown or partial shutdown
Within one (1) hour of initial notification
I Six (6) hours
jof one or more Software functions
during business hours or via
j
support. imagetrend.com
Access to one or more Software functions
not available
- Major subset of Software application
impacted that is necessary for usage of the
software
Medium - Minor subsystem failure
Within four (4) hours of initial notification
24 Business
hours
-Data entry or access impaired on a limited
basis.
Low - User error (i.e. training) or forgotten
Same day or next business day of initial
As
passwords
notification
appropriate
depending
Issue can or must be delegated to local
on nature of
Client contact as a first level of response for
issue and
resolution
I
party
responsible
for
resolution
2. Data Ownership
All customer data collected and maintained by ImageTrend shall at all times remain the property
of the customer.
3. Data Protection
ImageTrend takes data privacy and cybersecurity very seriously. ImageTrend utilizes compliant
and industry recognized best practices to ensure data security, and does not use or make
available any personally identifiable information to third parties without customer consent or as
required by law. ImageTrend acknowledges that its handling of information on behalf of customers
may be subject to federal, state or local laws, rules, regulation and restrictions regarding the
privacy of consumer information. ImageTrend agrees to comply with all of such laws, rules,
regulations and restrictions at its sole cost and expense.
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4. Suspension of Service
ImageTrend reserves the right to suspend and limit network resources to customers failing to pay
the monthly fee in advance at its own discretion. In the event of service suspension, full service
delivery will be restored within 48 hours from the date and time that payment is received.
5. Availability
ImageTrend is fully committed to providing quality service to all customers. To support this
commitment, ImageTrend offers the following commitments related to application server
Availability:
Availability Objective: ImageTrend will provide 99.5% Availability (as defined below) for the
ImageTrend network services within ImageTrend's Immediate Control. For purposes, hereof,
"Availability" or "Available" means the ImageTrend Services are available for access and use
through the Internet.
"Immediate Control" includes ImageTrend's network services within the ImageTrend data center
which extends to, includes and terminates at the Internet Service Provider ("ISP") circuit
termination point on the router in ImageTrend's data center (i.e., public Internet connectivity).
Specifically excluded from the definition of "Immediate Control" are the following:
a. Equipment, data, materials, software, hardware, services and/or facilities provided by or on
behalf of Client or a third -party entity (or any of their vendors or service providers) and Client's
or a third party entity's network services or end -user hardware.
b. Acts or omissions of Client, their employees, contractors, agents or representatives, third
party vendors or service providers or anyone gaining access to the ImageTrend Services at
the request of Client.
c. Issues arising from bugs, defects, or other problems in the software, firmware, or hardware
of third parties.
d. Delays or failures due to circumstances beyond ImageTrend's reasonable control that could
not be avoided by its exercise of due care.
e. Any outage, network unavailability or downtime outside the ImageTrend data center.
Availability Calculation: Availability is based on a monthly calculation. The calculation will be
as follows: ((a — b) / a) x 100, where "a" is the total number of hours in a given calendar month,
excluding Scheduled Maintenance (as defined below), and "b" is the total number of hours that
service is not Available in a given month.
Offline Capability: The Software may have offline capability which provides redundancy when
network or server back -end capability is not available. Periods of time when the Software's
primary functions continue to function offline shall be excluded from the unavailability calculation
"b" above.
Scheduled Maintenance: ImageTrend conducts scheduled maintenance, as necessary, every
last Wednesday of the month. ImageTrend will perform scheduled maintenance within that
maintenance window between the hours of 9:00 p.m. CST to 11:00 p.m. CST. ImageTrend may
change the regularly scheduled maintenance window from time to time at ImageTrend's discretion
upon reasonable notice to Client.
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Service Disruption: Upon customer's written notice to ImageTrend, if Availability for the month
is below the guaranteed level, ImageTrend will issue a credit to customer in accordance with the
schedule below:
Availability: 99.0% - 99.5% = 5% of monthly hosting fee credited
95.0% - 98.99% = 10% of monthly hosting fee credited
90.0% - 94.99% = 15% of monthly hosting fee credited
89.99% or below = 2.5% for every 1 % of lost Availability (in no event exceeding
50% of monthly hosting fees)
ImageTrend maintains precise and objective Availability metrics, which shall be determinative
when calculating any customer requested credit. ImageTrend maintained Availability metrics shall
only be requested in good faith to address material customer concerns. To receive a credit,
customers must specifically request it during the month following the month for which the credit
is requested. Credits shall not be issued if a customer account is past due, suspended or pending
suspension.
6. General
ImageTrend reserves the right to change or modify this SLA and the related services being
provided to benefit its customers, including changes to hosting environments and infrastructure,
provided that any such improvements shall adhere to the regulatory guidelines and best practices
referenced herein.
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BUSINESS ASSOCIATE AGREEMENT ATTACHMENT
This Business Associate Agreement ("Agreement") dated 07/10/2024 (the "Effective Date"), is entered
into by and between City of Newport Beach acting by and through the Newport Beach Fire Department
located at 100 Civic CenterPO Box 1768, Newport Beach, California 92658 (the "Covered Entity") and
ImageTrend, LLC, a Minnesota corporation (the "Business Associate").
WHEREAS, Covered Entity (also referred to as "Client") 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:
1. 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
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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 the same manner.
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.
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
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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.
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.
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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 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 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
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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.
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
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.
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
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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.
If Client is a Governmental Entity the following clause does not apply: 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.
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.
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.
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.
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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:
ATTN: EMS Division Chief or Desia
100 Civic CenterPO Box 1768
Newport Beach, California 92658
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If to Business Associate:
ImageTrend, LLC
Attn: Legal Department
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 Covered Entity 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 Covered Entity 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
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may be difficult to ascertain, and therefore agrees that the injured party shall have the right to apply
to 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 (".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 undersigned parties, each having authority to bind their respective
organizations, hereby agree.
Client ImageTrend
Signature: �Cr
Print Name: )-64 -V:"Uy 1-�C
Title: -!P � ;y-e C V1 � e
Date: `� � Zc '7-07(-
APPROVED AS TO FORM:
CITYATIFORN -/'S OFFICE
Date: ? / l � l � `(
By: t
A r n C. Harp, City Attorney
Signature:
Print Name: a ��
GO�r�eC
S`gre
Title:
Date:
Attest: SEW P0�T
4A?AAJ
�-
Leilani I. Brow , MMC, City Clerk _==
Date: 4:FoR�'�P
20 of 20
may be difficult to ascertain, and therefore agrees that the injured party shall have the right to apply
to 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 otherjoint 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 (".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 undersigned parties, each having authority to bind their respective
organizations, hereby agree.
Client
Signature:
Print Name:
Title:
Date:
APPROVED AS TO FORM:
CITY ATfORN 'S OFFICE
Date: 7/ I � /� `(
By:
A r n C. Harp, City Attorney
-7I)�51a-)-b,.-
ImaeeTrend
Signature:dl�z"-J
Print Name: K (, (1 r �i
Title: C 610
Date: [
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