HomeMy WebLinkAboutC-5746-1 - Master Software and Services Agreementiviasier z)ortware ana-ervices Hgreemem
CONTRACT NUMBER: O00062O0.O
BETWEEN
City of Newport Beach
100 Civic Center
Newport Beach, California 92658
AND
MAG ETREND"
ImageTrend, LLC
20855 Kensington Blvd.
Lakeville, Minnesota 55044
Phone: 952-469-1589 1 Toll Free: 1-888-469-7789 1 Fax: 952-985-5671 1 www.imagetrend.com
MAG ETRENa
THIS MASTER SOFTWARE AND SERVICES AGREEMENT is made and entered into on the Effective
Date, by and between the ImageTrend, LLC, a Minnesota corporation (hereinafter "ImageTrend"), and
the City of Newport Beach, a California municipal corporation and charter city (hereinafter "Client") on
behalf of its Fire Department, together "the Parties."
RECITALS
WHEREAS, Client desires to purchase Custom Software Development and related services as
more fully described in this agreement from ImageTrend; and
WHEREAS, ImageTrend possesses technical skill, knowledge, and capability in consulting and
designing custom and off -the -shelf software solutions and performing technical software
services and Client desires such services.
NOW, THEREFORE, THE PARTIES HEREBY AGREE AS FOLLOWS:
SECTION 1. DEFINITIONS
"Agreement", "This Agreement", and "The Agreement" means this Master Software and Services
Agreement, the Work Orders issued hereunder, all Attachments and Exhibits attached hereto, or any
Amendments made in mutually executed hereto.
"Business Day" means a single 8 hour period occurring on a Monday, Tuesday, Wednesday, Thursday or
Friday, 9:00am CST to 5:00pm CST, excluding holidays per §17(b) below. Unless specified in a Service
Order, ImageTrend personnel will only perform services during Business Days.
"Business Week" means a 5 day period, beginning Monday at 9:00am CST and ending Friday at 5:00pm
CST, excluding holidays per below.
"Confidential information" means the proprietary products and trade secrets, including, but not limited
to, computer software, code, technical parameters, price lists, methods of pricing, customer lists,
designs, software documentations, manuals, models and account tables, and any and all information
maintained or developed. Information shall be considered Confidential Information if it is identified in
writing as confidential or proprietary, or if disclosed verbally or visually in discussion; upon written
notice specifying and describing the nature of the orally disclosed Confidential Information at that time,
or within fifteen (15) days of such disclosure.
"Commercial Off The Shelf' or "COTS" means pre -designed software products which are made available
for sale by ImageTrend to many customers. COTS is mutually exclusive to Custom Software or Custom IP.
MOTS means Modified Off The Shelf, and is a derivative work of ImageTrend COTS Software.
"Custom IP" or "Custom Software" means software products, or other Intellectual Property, which is
designed for a specific purpose, for a specific customer or CLIENT.
"Deliverable" means an intangible or tangible product, material, or service produced as a result of a
Work Order, and each Deliverable is specified in the corresponding Work Order from which it is
produced.
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"Disclosing Party" means the party disclosing Confidential Information to the other party, see also
Receiving Party.
"Effective Date" means the date upon which the last party has signed and executed this Agreement.
"Fixed Fee" means a fixed amount of compensation due in return for a fixed Deliverable.
"Governmental Entity" shall have the same meaning as "State and local government entities" as defined
in the General Services Administration Acquisition Manual (GSAM) at 538.7001, as updated.
"Intellectual Property" means any intellectual property or proprietary rights in any jurisdiction, whether
owned or held for use under license, whether registered or unregistered, including such rights in and to:
(i) trademarks, trade dress, service marks, certification marks, logos, trade names, brand names,
corporate names, assumed names and business names ("Trademarks", which term shall include the
items described in clause (viii) below); (ii) patents and any and all divisions, continuations,
continuations -in -part, reissues, continuing patent applications, reexaminations or extensions thereof,
any counterparts claiming priority therefrom, utility models, patents of importation/confirmation,
certificates of invention, certificates of registration and like statutory rights; inventions, invention
disclosures, discoveries and improvements, whether patentable or not; (iii) copyrights and works of
authorship; (iv) trade secrets (including those trade secrets defined in the Uniform Trade Secrets Act and
under corresponding federal, state or foreign statutory or common law), business, technical and know-
how information, non-public information, and confidential information and rights to limit the use or
disclosure thereof by any Person; (v) mask works; (vi) moral rights, author's rights or rights of publicity;
(vii) claims, causes of action and defenses relating to the enforcement of any of the foregoing; (viii) any
applications for registration of any of the foregoing, and all renewals or extensions of any of the
foregoing, whether now existing or hereafter arising; and (ix) the goodwill associated with each of the
foregoing. For the avoidance of doubt, "Intellectual Property Rights" includes any and all of the
foregoing related to computer software, data files, Source Code, Object Code, APIs, manuals,
documentation, specifications, databases or other materials or information.
"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.
"Local Travel" means travel to a destination in the Twin Cities Metro area, within 30 miles of Lakeville,
MN.
"Materials" and "Expenses" means but is not limited to third party software licenses, physical
hardware, test devices, or other items, reasonable travel expenses (including but not limited to food,
lodging, and transportation), printing, delivery of materials, or any other cost reasonably incurred arising
out of this Agreement.
"Master Services Agreement" means the Master Software and Services Agreement excluding Work
Orders issued thereunder.
"Pre -Existing Materials" means code, documentation, frameworks, development accelerators, tool sets
or any other materials owned by ImageTrend and not developed as part of the services performed for
Client. It may include, without limitation, Security Framework, Dashboard, ImageTrend Frameworks,
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Report Writer and any other tools or Intellectual Property made or used by ImageTrend unrelated to this
Agreement.
"On -Site Hour" means time an hour worked by ImageTrend personnel on Client premises, or other
premises of Client's choosing that are not ImageTrend's corporate offices.
"Statement of Work" means the technical document which outlines a mutually agreed upon
specification for particular Custom Development projects and associated costs, payment terms and
acceptance procedures. This document requires client acceptance and signature prior to beginning
work.
"Support" means technical support for the configuration and functioning of the products, including
taking and monitoring defect reports, as defined further below in the Service Level Agreement between
ImageTrend and Client.
"Software" means ImageTrend software provided to Client by ImageTrend, specifically software
developed and/or written by ImageTrend. Software developed by a third -party which is purchased on
behalf of Client is considered Third Party Material.
"System Administrator" means County of Orange.
"Receiving Party" means the party receiving Confidential Information from the Disclosing Party.
"Third Party Material(s)" means software or other materials owned by a party other than Client or
ImageTrend.
"Time and Materials Basis" means charges billable to the Client based upon each hour worked,
multiplied by the hourly rate for the work, plus the cost of any Materials necessary (including but not
limited to, the cost of third party software licenses, travel and accommodation expenses, or otherwise),
or Materials beneficial (conditioned upon mutual assent of the parties), billed on a monthly basis in
arrears.
"Work Order" means the document which outlines a mutually agreed upon set of services, products, or
Deliverables and associated costs, payment terms, and acceptance procedures.
SECTION 2. SYSTEM ADMINISTRATORS RIGHTS
To the degree this 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, Client's rights are subordinate to those of the System Administrator. To
the degree Client's requests require modification or otherwise impact the System Administrator, Client
must seek and obtain written permission from the 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 or modified without System Administrator's written consent.
SECTION 3. TERM OF AGREEMENT
The Term of this Agreement shall be 36 months from the Effective Date of this Agreement ("Initial
Term"), unless otherwise extended by formal written agreement.. If the System Administrator is to
terminate their contract with ImageTrend, this agreement shall also terminate.
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SECTION 4. WORK ORDERS
CREATION OF WORK ORDERS. The parties may, from time to time, work together to detail the specific
engagement scope, pricing, acceptance criteria, and terms of services to be performed and Deliverables
to be delivered by ImageTrend. ImageTrend will set forth these details as a Work Order. If the Work
Order is for the purchase of COTS Software, the Work Order shall also outline the quantity and SKU of
each product or service as applicable. Should a Work Order contain no term regarding a topic, the terms
of this Master Software and Services Agreement shall hold instead.
LIMITATIONS OF WORK ORDERS. Work Orders may include requirements on the Client. Such
requirements, when executed as part of a mutual agreed writing, form a material part of this Agreement
and of the Work Order where the requirement is presented. Additionally, either party may set forth
factual assumptions ("Assumption") in each Work Order. Notwithstanding anything in this Agreement or
the Work Order, a Work Order will be rendered void to the extent that ImageTrend is obligated to
perform services which are impossible or impracticable. Further, a Work Order will be rendered voidable
to the extent that ImageTrend is obligated to perform services materially different than originally set out
in that Work Order due to an inaccurate Assumption. The parties will make commercially reasonable
efforts to negotiate an alternative or modified Work Order in light of the inaccurate Assumption.
MODIFICATION OF WORK ORDERS. Any modification to the scope or tasks identified within the Work
Order that change the work budget by an estimated 10 hours of work or more shall require a new
modified written Work Order or written Change Order. ImageTrend shall not work on the new tasks in
the modified Work Order until the Client has provided signed written acceptance of the new Work
Order. The parties may waive this requirement on a case -by -case basis in writing. Modifications
requiring less than an estimated 10 hours of work may be proposed and accepted verbally, with such
modifications requiring less than 10 hours of work billed on a Time and Materials basis.
FEE MODEL. The Work Order will contain fee and payment terms. The following fee models are
contemplated:
Fixed Fee ImageTrend shall perform the work outlined in the Work Order for a
fixed flat fee, plus Expenses. The Fixed Fee is exclusive of Expenses
unless the Work Order outlines the Expenses. The Fixed Fee model
may include milestone payments, with such milestone payments
outlined in the Work Order.
Time and Materials ImageTrend shall perform the work outlined in the Work Order on a
Time and Materials basis, at the rate(s) specified in the Work Order.
LEGAL EFFECT. Work Orders issued under this Master Services Agreement are incorporated by reference
into this Master Services Agreement which collectively is called "the Agreement." Work Orders do not
override the terms of this Master Services Agreement unless specifically stated that they do so. Work
Orders may contain their own Fee/Payment Schedules and Payment Terms; those terms are binding
insofar as they concern the services or Deliverables contemplated by the Work Order. For Work Orders
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without their own fee and payment terms, the payment terms in the Price Sheet and Work Order
Attachment below control.
CUSTOMIZED SOFTWARE DEVELOPMENT. The parties may mutually agree to a Work Order also known
as a Statement of Work for the development of new or custom software, also known as "Modified Off
The Shelf' or MOTS. All normal requirements of the Work Order shall apply, but additionally the parties
must work together to mutually define a Statement of Work which outlines the tasks, and their
timelines, to be undertaken as part of the project. Any Customized Software or MOTS Software
developed under this Agreement will be Intellectual Property owned by ImageTrend. Should Client
desire ownership of any Intellectual Property developed by ImageTrend, this must be embodied by a
separate, mutually executed contract. For clarity, Client shall not and will not own any ImageTrend
Intellectual Property under any circumstance under this Agreement. Client may only receive a license
thereto as outlined in each Work Order.
SECTION 5. PERFORMANCE OF SERVICES
COMMENCEMENT. ImageTrend shall begin services described in the Work Order subsequent mutual
signed execution the Work Order. No services shall begin before mutual signed and written final
acceptance of each Work Order.
USE OF KNOW HOW. ImageTrend shall use its know-how, Intellectual Property, talent, skills, and
employees to perform the services. Client shall conditionally receive a license to any and all pre-existing
ImageTrend Intellectual Property and Know -How used in the creation of Deliverables and delivery of
services as outlined below in and the Software Licensing Terms Attachment.
MATERIALS. Materials (including, but not limited to, third party software licenses, physical hardware,
test devices, or other items and any other Material) that will be used in the development of the
Software will be identified by ImageTrend to Client. ImageTrend shall acquire such Materials as the
parties mutually agree should be acquired, and it shall be the Client's responsibility to pay for those
materials.
ACCEPTANCE OF SERVICES AND DELIVERABLES. ImageTrend shall deliver completed Deliverables and
services to Client for acceptance. Each Work Order must detail the acceptance criteria for each
Deliverable or service contained within that Work Order. If a Deliverable or services acceptance criteria
is measurable objectively, it shall be complete upon satisfaction of that objective measurement without
regard to either party's satisfaction with the Deliverable. If 1) a Deliverable's acceptance criteria is based
on Client's satisfaction with the Deliverable, or 2) no acceptance criteria is detailed, then the following
default clause shall apply:
After delivery of the Deliverable or performance of the service, Client shall have no more than 30
days to: 1) accept the deliverable or service, or 2) reject the deliverable or service by providing a
written rejection that reasonably sets forth the reason for the rejection and the changes required
to gain Client's acceptance, or 3) provide a written request for a 15 additional day extension to
review the Deliverable or service; ImageTrend shall not unreasonably withhold approval of such
15 day extension. If Client does not provide an acceptance within the above time frame inclusive
of extensions, the Deliverable or service will be deemed accepted. After delivery of the fourth
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revision of the service or Deliverable, the service or Deliverable shall be deemed accepted by
Client.
SECTION 6. FEES, INVOICING, AND PAYMENT TERMS
PROMPT PAYMENT ACTS. IF CLIENT IS A GOVERNMENTAL ENTITY THE FOLLOWING PARAGRAPH
APPLIES: To the degree any term in this Section 6, or any payment related term in any Work Order,
conflicts with the governing prompt payment act or similar procurement act which unambiguously limits
client's ability to agree or comply with any term in this section 6 or in any payment related term in any
work order ("The PPA"), the term in the PPA will instead control. For clarity, unless there is an
unambiguous conflict between the terms of this Section 6 or in any Work Order, the PPA shall not
control and this Agreement shall still control.
FEES. Client shall owe to ImageTrend such fees as set forth in each mutually executed Work Order. The
total amount of compensation payable to ImageTrend under to this Agreement, whether as fees, time
and materials rate, or travel costs, shall not exceed $120,000.00 without execution of a written
amendment.
SCHEDULING NON -LOCAL TRAVEL. For air travel Client may, and is strongly advised to, schedule travel
no less than 3 weeks in advance of the first on -site date by written request; ImageTrend reserves the
right to approve or deny travel requests on a per -request basis. Client may also request travel by writing
with 3 weeks or less advance notice; ImageTrend reserves the right to approve or deny such travel
requests, and to invoice costs to Client due to scheduling changes ImageTrend must make to
accommodate such a request if approved.
CANCELLATION, RESCHEDULE, OR DELAY. Client will provide to ImageTrend (10) ten business days prior
written notice of Client's intent to delay, reschedule, or cancel ("Staffing Change") any service in a Work
Order which requires an ImageTrend employee to perform work at a specific location or at a specific
time (e.g. face-to-face meetings, on -site visits, after hours on -call status). If Client fails to provide such
notice, Client shall reimburse ImageTrend for loss caused by the Staffing Change. ImageTrend shall use
commercially reasonable efforts to mitigate any losses that would be incurred by a Staffing Change and
due to ImageTrend by Client.
INVOICING. Unless otherwise specified in a Work Order, invoices must be paid on Net 30 terms. Any
objection to an invoice must be made in writing. Client may request up to an additional 15 days to
review Deliverables associated with an invoice, approval to which ImageTrend shall not unreasonably
withhold. If Client does not object to an invoice, or request an extension to review Deliverables, within
30 days after receipt of the invoice then the invoice is deemed accepted and any right to object to the
invoice is waived. Payment shall be made by check or by ACH transfer to ImageTrend.
REMEDIES FOR NON-PAYMENT. Should Client fail to pay per the terms of this Agreement and this
Section 6, ImageTrend may; 1) suspend services under all Work Orders until such payment is made in
full, and/or 2) charge a late fee at the lesser of 1.5% or the maximum allowed by law, and/or 3) invoice
Client for the costs of collection.
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TRAVEL COSTS. Should Client desire ImageTrend to send personnel to a location of Client's choosing in
the continental United States, Client may pay $1,800 per ImageTrend trainer per trip and a further
$1,750 per trainer per day spent at Client's chosen location. Travel outside of the continental US will be
quoted by ImageTrend upon request. Travel may only be scheduled for a maximum of one business
week of Monday through Friday per trip; however, Client may book consecutive trips. Non -local travel
scheduling which runs from one business week into a subsequent business week(s) (e.g. start date on
Friday at 8:00am, end date Wednesday at 5:00pm, "Overlapped Weekend") will result in ImageTrend
invoicing Client an additional trip for each Overlapped Weekend. ImageTrend staff will work 8 hours
each day, except on the first and last day of each trip ImageTrend may reserve up to 2 hours of the
Business Day for travel time.
TIME AND MATERIALS RATE. Unless otherwise specified in a Work Order, ImageTrend's Time and
Materials rate is $225.00 per hour.
PRICE ESCALATION. ImageTrend reserves the right to escalate the prices contained herein, and any
recurring fee, by no more than 5% of the then current price for each anniversary of the Effective Date
beginning one year from the last signature. ImageTrend further reserves the right to escalate travel
prices once per year upon written notice to Client. Such travel price increases will only affect future
travel prices and will not change the price or amount due to ImageTrend for previously rendered travel.
SECTION 7. DATA AND INTELLECTUAL PROPERTY
CLIENT DATA. All Client data provided to ImageTrend remains at all times the property of the Client
unless otherwise specified by a Work Order. ImageTrend will not to use or make available any personally
identifiable information or patient health information other than for performing the services outlined in
a Work Order, and for use in an aggregated manner to monitor, operate, train artificial intelligence, and
conduct statistical analyses relevant to the application's proper functioning, maintenance, optimization,
or improvement. ImageTrend will not in any way transfer to any third party any Confidential Information
of Client.
DE -IDENTIFICATION. ImageTrend may create a de -identified data set of Client's data ("the De -identified
Data Set") and ImageTrend may, in ImageTrend's discretion, transform, analyze, distribute and
redistribute, create derivative works of, license, make available to 3rd party researchers, or otherwise
use the De -identified Data Set except as limited by: 1) this Agreement, 2) applicable law and regulation,
e.g. State and Local data privacy law and HIPAA/HITECH, 3) notwithstanding any of the prior,
ImageTrend shall create the De -identified Data Set in accordance with the then current HIPAA Safe
Harbor Rule at 45 CFR § 164.514(2)(i) by removing the 18 listed data elements, and any additional data
element designated as 'Personal Information' by State and Local data breach law (or equivalent laws).
ImageTrend shall ensure its methods for creating the De -identified Data Set comport with industry best
practices and guidance such as NISTIR 8053 'De -Identification of Personal Information' (available at
http://dx.doi.org/10.6028/NIST.IR.8053). ImageTrend shall use reasonable administrative, technical, and
physical safeguards to protect and prevent unauthorized disclosure of the De -identified Data Set.
ImageTrend shall not attempt to re -identify any de -identified records.
GRANT OF LICENSE TO IMAGETREND'S PRE-EXISTING IP AND OWNERSHIP OF NEW IP. All Intellectual
Property Rights connected to the ImageTrend pre-existing materials such as architectural structure,
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modules, processes, and Know -How that may be used in Deliverables ("Pre-existing IP"), shall remain
owned by ImageTrend. ImageTrend agrees to grant to Client a royalty -free, worldwide, transferable,
non-exclusive, use license for these architectural structures, modules, and processes that may be used
solely in conjunction with the Deliverables and services performed under Work Orders and in
accordance with the license selected below in the Software Licensing Terms Attachment, conditioned
upon full payment of the Work Order from which the Deliverable containing Pre -Existing IP originates.
This license may not be transferred, and Client may not sublicense, use, reproduce, distribute or prepare
derivative works of ImageTrend's Pre -Existing IP except to the extent strictly necessary to fulfill the
purpose of a Work Order. New Deliverables utilizing the same Pre -Existing IP may require another
license for that new Deliverable, in ImageTrend's discretion. New Custom Intellectual Property authored
by the parties in the course of performing a Work Order shall be owned by the party that authored the
Intellectual Property and in the case of derivative works, it shall be owned by the party who owns the
work from which the derivative is made, or as otherwise set forth in the Work Order. In the case of
ImageTrend Software products licensed per in the Software Licensing Terms Attachment below, or
"Modified Off The Shelf Software" as defined above, ImageTrend shall own all Intellectual Property
related to or arising out of any Work Order. A Work Order may specify who owns the intellectual
property embodied in a Deliverable; however, absent such terms in the Work Order, the terms of this
Agreement shall control. Any right not hereby granted is reserved.
SECTION 8. CONFIDENTIALITY
CONFIDENTIALITY ACKNOWLEDGEMENT. Each party hereby acknowledges and agrees that the other
Party's Data, potential clients or customers, client or customer lists, business plans, pricing structures,
software and database designs, and any other information a Party has marked as Confidential,
constitute Confidential Information. Each party agrees to treat (and take precautions to ensure that its
authorized personnel treat) Confidential Information as confidential in accordance with the
confidentiality requirements and conditions set forth below. Orally transmitted information shall not be
Confidential Information unless specified as such in a writing transmitted from the Disclosing party to
the Receiving party within 15 days of the oral transmission, with such writing providing a reasonable
description and scope of the Confidential Information transmitted.
CONFIDENTIALITY OBLIGATIONS. 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 §8 shall not apply to information which: (i) is in the public domain;
(ii) has been acquired by a Party by means other than the disclosure of the information by the Disclosing
Party; (iii) is duly obtained by a Party directly or indirectly from a third party who has independently
developed the information and is entitled to disclose the information to the Party, and such disclosure
does not directly or indirectly violate the confidentiality obligation of such third party; (iv) becomes
known publicly, without fault on the part of a Party, subsequent to the receipt of the information by
Party, or (v) the disclosure of which is required under the California Public Records Act, Government
Code section 7920.000 et seq.
SURVIVAL. This §8 shall survive the termination of this Agreement or of any license granted under this
Agreement.
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SECTION 9. WARRANTIES
NO CONFLICTS OF INTEREST. ImageTrend does not have any express or implied obligation to a third
party which in any way conflicts with any of ImageTrend's obligations under this Agreement.
SERVICES. All services and will be provided in a professional and workmanlike manner in accordance
with applicable industry standards and will comply with all applicable laws. All Deliverables will
substantially conform to the agreed -upon specifications set forth in the applicable Work Order or as
otherwise set forth in this Agreement.
EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT ABOVE, THE SERVICES IMAGETREND PROVIDES
TO CLIENT ARE PROVIDED WITHOUT ADDITIONAL WARRANTY OF ANY KIND, EITHER EXPRESSED OR
IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE AND ANY ORAL OR WRITTEN REPRESENTATIONS, PROPOSALS, OR
STATEMENTS MADE PRIOR TO THIS AGREEMENT. IMAGETREND HEREBY EXPRESSLY DISCLAIM, AND
CLIENT HEREBY WAIVES, ANY REPRESENTATION OR WARRANTY OF ANY KIND WITH RESPECTTO THE
SERVICES, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON -
INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. THE REMEDIES PROVIDED IN THIS
AGREEMENT ARE CLIENT'S SOLE AND EXCLUSIVE REMEDIES.
SECTION 10. LIMITATION OF LIABILITY
EACH PARTY SHALL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO THE OTHER PARTY FOR
CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES OR LOSSES
ARISING OUT OF OR RELATED TO THIS AGREEMENT, EVEN IF THAT PARTY IS ADVISED OF THE
LIKELIHOOD OF SUCH DAMAGES OCCURING. EACH PARTY'S CUMULATIVE LIABILITY ARISING OUT OF OR
IN ANY MANNER RELATED TO THIS SHALL BE LIMITED TO THE AMOUNT OF THE FEES DUE UNDER THIS
AGREEMENT.
SECTION 11. DISPUTE RESOLUTION
DUTY TO NEGOTIATE IN GOOD FAITH PRIOR TO FORMAL DISPUTES. IF CLIENT IS A GOVERNMENTAL
ENTITY, THE FOLLOWING 2 PARAGRAPHS APPLY:
The parties shall attempt in good faith to resolve any dispute arising out of or relating to this agreement
promptly by negotiation between executives who have authority to settle the controversy and who are
at a higher level of management than the persons with direct responsibility for administration of this
agreement. Any party may give the other party written notice of any dispute not resolved in the normal
course of business. Within 15 days after delivery of the notice, the receiving party shall submit to the
other a written response. The notice and response shall include with reasonable particularity (a) a
statement of each party's position and a summary of arguments supporting that position, and (b) the
name and title of the executive who will represent that party and of any other person who will
accompany the executive. Within 30 days after delivery of the notice, the executives of both parties
shall meet at a mutually acceptable time and place, or by teleconference.
All offers, promises, conduct and statements, whether oral or written, made in the course of the
negotiation by any of the parties, their agents, employees, experts and attorneys are confidential,
privileged and inadmissible for any purpose, including impeachment, in arbitration or other proceeding
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involving the parties, provided that evidence that is otherwise admissible or discoverable shall not be
rendered inadmissible or non -discoverable as a result of its use in the negotiation.
SECTION 12. NON -EXCLUSIVITY
This Agreement does not establish any exclusivity of service, contract, customer relationship, or
otherwise between the parties.
SECTION 13. AMENDMENTS
This Agreement may only be modified by a mutually executed writing including but not limited to Work
Orders, signed by a person having authority to sign.
II SECTION 14. TERMINATION
Either Party may terminate this Agreement upon giving the other Party thirty days (30) days' prior
written notice to the other Party in addition to any other remedy or right contained in this Agreement.
This right of termination is additive to other rights of termination identified above in this Agreement and
does not preclude the exercise of those other rights.
SECTION 15. INDEMNIFICATION
IMAGETREND INDEMNITY. ImageTrend shall defend and indemnify Client from and against third party
claims, actions, suits, demands, damages, obligations, losses, settlements, judgments, costs, and
expenses ("Claims"), which arise out of any negligent act or omission, or willful misconduct of
ImageTrend. Client shall promptly notify ImageTrend for any actual or prospective Claim for which
indemnification is sought. In the event that any third -party Claim is made and Client invokes this clause,
ImageTrend shall have the right and option to undertake and control such defense of such action with
counsel of ImageTrend's choice with control to settle any such Claim. ImageTrend shall have no
obligation to defend or indemnify Client from Claims arising out of Client's negligent or intentional
wrongful acts or omissions. Because ImageTrend must provide its own insurers with notice of a claim
within 60 days of actual knowledge of a Claim, Client accordingly must provide ImageTrend written
notice no more than 60 days after Client has actual knowledge of a Claim else ImageTrend shall have no
obligation to indemnify Client.
SECTION 16. 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.
SECTION 17. GENERAL TERMS
a. INSURANCE REQUIREMENTS. ImageTrend will provide to Client a Certificate of Insurance upon
req uest.
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b. BUSINESS DAYS AND HOLIDAYS. The parties agree a business day is 8 hours long, and excludes
Saturdays, Sundays, and days reasonably considered a holiday by either party per each party's
written policies. Unless otherwise specified in a Work Order, ImageTrend shall perform services
only during business days, from 9:00am CST to 5:00pm CST.
c. COUNTERPARTS. This Agreement may be executed in counterpart originals, duly signed by both
parties, each of which will be deemed an original but all of which, together, will constitute one
and the same Agreement. Any terms not present in all counterpart copies are severed and void.
d. FORCE MAJEURE. Neither party will be liable for delays nor for non-performance due to an
unforeseeable event, external to this Agreement and the parties, where the occurrence of the
event beyond the non -performing or delayed party's reasonable control ("Force Majeure
Events.") This clause shall not apply to costs due to ImageTrend to reimburse cancellation,
reschedule, or modification of travel arrangements per §6 above. Force Majeure'Events may
include, but are not limited to: war, terrorism or threats of terrorism, civil disorder, labor strikes,
fire, disease, medical epidemics or outbreaks, events which curtail necessary transportation
facilities (e.g. airports), or other unforeseeable events where the occurrence of the event is
beyond the non -performing or delayed party's control.
e. REASONABLE COOPERATION. Client will reasonably cooperate with ImageTrend to the extent
reasonably necessary to enable ImageTrend to perform the Services contemplated in each Work
Order. Accordingly, Client will provide access, information or other materials in a fashion timely
to the schedule of each Work Order. ImageTrend shall have no liability to Client for delays
arising out the actions or non -actions of Client.
f. NON ASSIGNABILITY. A party shall not assign this Agreement or its rights hereunder without the
prior written consent of the other party.
g. JURISDICTION AND VENUE. 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. IF CLIENT IS A
GOVERNMENTAL ENTITY the law governing this Agreement shall be that of the Client's
jurisdiction without regard to its conflict of laws principles.
h. ENTIRE AGREEMENT. This Agreement constitutes the entire Agreement between the parties,
with respect to this subject matter, including, but not limited to the services, goods, products,
and Software provided by ImageTrend for Client and the compensation provided by Client for
said provision of such services therefore, and supersedes all previous proposals, both oral and
written, negotiations, representations, writings and all other communications between the
parties. This Agreement may not be released, discharged, or modified except by an instrument
in writing signed by the parties.
SEVERABILITY. If any provision of this Agreement is determined by a court of competent
jurisdiction to be invalid or unenforceable, such determination shall not affect the validity or
enforceability of any other part or provision of this Agreement.
5 July 2023 www.imagetrend.com Page 112 of 35
MAGETREND&
WAIVER. No waiver by either party of any of any provision hereof shall constitute a waiver of
any other term of this Agreement nor shall it preclude either party from enforcing its rights.
k. NONAPPROPRIATION. IF CLIENT IS A GOVERNMENTAL ENTITY THE FOLLOWING PARAGRAPH
APPLIES. The continuation of this Agreement is contingent upon the appropriation of funds by
the legislature or other sources as applicable to fulfill the requirements of the Agreement. If the
insufficient monies are appropriated to provide for the continuation of the Agreement, or if
such appropriation is reduced by the veto of the Governor or by any means provided in the
applicable appropriation laws or regulations for any lawful purpose, and the effect of such
reduction is to provide insufficient monies for the continuation of this Agreement or any Work
Order hereto, the Agreement or applicable Work Order(s) shall terminate on the date of the
beginning of the first fiscal year for which funds have not been appropriated. ImageTrend shall
be entitled to payment for deliverables in progress, to the extent work has been performed
pursuant to this Agreement or any Work Order hereto; obligations that have been incurred that
extend beyond the date of termination; and reasonable contract close-out costs.
INDEPENDENT CONTRACTORS. It is the express intention of Client and ImageTrend that
ImageTrend and its employees and agents will perform the services hereunder as independent
contractors to Client. Nothing in this Agreement shall in any way be construed to constitute
ImageTrend or its employees or agents as an agent, employee or representative of Client.
Without limiting the generality of the foregoing, ImageTrend is not authorized to bind Client to
any liability or obligation or to represent ImageTrend has any such authority. Client and
ImageTrend agree that neither ImageTrend employees nor its agents will receive Client -
sponsored benefits from Client.
m. NOTICES. Any notice required to be given by either party to the other shall be deemed given if
in writing on the date actually delivered (including electronic methods such as e-mail), or if
deposited in the United States mail in registered or certified form with return receipt requested,
postage prepaid, on the postmarked date and addressed to the notified party at the address set
forth below, or to such other address as a party may designate from time to time by means of
notice given hereunder to the other party.
If to Client:
Newport Beach Fire Department
Attn: Brian McDonough
100 Civic Center
Newport Beach, California 92658
If to ImageTrend:
ImageTrend, LLC
Attn: Legal Department
20855 Kensington Boulevard
Lakeville, MN 55044
SIGNATURES ON FOLLOWING PAGE
5 July 2023 www.imagetrend.com Page 113 of 35
MAGETRENU
IN WITNESS WHEREOF: the undersigned parties, each having authority to bind their respective
organizations, hereby agree.
Client
By: "/
Grace ng
City MK. ager ,��
Date: �� f V �22
J
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date: 7-S. 23
By:
ron C
Ci orneyey A/
ATTEST:
Date: O'�j
By:
Leilani I. Brown
City Clerk
ImageTrend
By: Signed in Counterpart
Joseph Graw
President
Date:
By: Signed in Counterpart
Daniel Quam
Secretary
Date:
[END OF SIGNATURES]
5 July 2023 www.imagetrend.com Page 114035
IMAGE TREND
IN WITNESS WHEREOF: the undersigned parties, each having authority to bind their respective
organizations, hereby agree.
Client ImageTr d
By: By: r
Grace K. Leung Joseph ra
City Manager President
Date: Date:
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date: 7• S • 23
By:
ro n C a rp A
City D orney
ATTEST:
Date:
By:
Leilani I. Brown
City Clerk
By: \�
Daniel Quam
Secretary
Date: V -/ 1 -3
[END OF SIGNATURES]
5 July 2023 www.imagetrend.com Page 114 of 35
IMAGETREND'
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 ImageTrend hereby grants Client a non-exclusive, non -transferable license to use
Service License the ImageTrend Software product(s) listed in the Work Order for such time as
(SaaS) or
listed in said Work Order. During the term of the Work Order, the Client shall
Integration as a
have access to the Software, which will be installed on servers at the ImageTrend
Service (laaS)
hosting facility and subject to the Service Level Agreement attached. All copies of
("SaaS")
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
5 July 2023 www.imagetrend.com Page 115 of 35
MAG ETREND
and/or Licensed Information or copies thereof except as provided in this
Agreement.
ImageTrend ImageTrend will grant Client a non-exclusive, non -transferable, perpetual use
Hosted License license without rights of resale or sublicensing, to the ImageTrend Software
("License") 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.
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
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. 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.
5 July 2023
www.imagetrend.com
Page I16of35
MAG ETREND
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. 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 4. 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
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 S. 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-
.......... _..... — — --
5 July 2023 www.imagetrend.com Page 17 of 35
IMAGETREND
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://ImageTrend.uservoice.com/.
SECTION 6. 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
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 7. 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
Hutnorizea user aetinitions a
Private Agency Client responds to emergency
medical incidents for -profit or
not -for -profit and the Client is
Public Agency, County,
Region, or City for its
own employed EMS
workers ("Public
Agency")
Hospital or Health
Network
not a Governmental Entity.
Client responds to emergency
All employees & contractors of Client
who respond to emergency medical
incidents in the regular scope of their
employment
All employees & contractors of Client
medical incidents and transports who respond to emergency medical
patients therefrom and is a incidents in the regular scope of their
Governmental Entity employment
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
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
5 July 2023 www.imagetrend.com Page 118 of 35
State, County, Region,
City for its constituents
Group Purchase (Multi -
Agency)
Financing Party (e.g.
billing company) on
behalf of
Agency/City/County
third party beneficiary
as a primary service of the
organization; and Client is
recognized and licensed as such
by the Client's governing State
Client is a Governmental Entity
with authority or an official
mandate to 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 Agency.
IMAGETRENU
Order, then it shall be interpreted as
the brick -and -mortar location from
which the Client primary contact,
Brian McDonough 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
emergency 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.
5 July 2023 www.imagetrend.com Page 119 of 35
IMAGE TREND
PRICE SHEET AND WORK ORDER ATTACHMENT
The prices below are based on the following SaaS transaction volumes, as provided by Client:
13,000 Incidents annually
Description
1.
Add CAD NFIRS to Existing CAD FEED
Upgrade EMS to Rescue SaaS Setup
Webinar Training 2hr Session
Agency Level Validation Fire Setup
Recurring Fees
Mobile Fire Inspections - SaaS
Agency Level Validation Fire
Investigations
Permits
Continuum' Fire Content Package
TeleStaff Distribution
Send Invoices To:
Price QtyW,
Extended
AmountUnit
ELT.002.007.069 $1,750.00 1
$1,750.00
ELT.003.002.017 $2,360.00 1
$2,360.00
ELT.006.003.009 $450.00
j 4
$1,800.00
ELT.003.002.013 $500.00 1
$500.00
Total One -Time Fees: $6,410.00
LL 1 .UUl.UUL.U33
ELT.001.002.014
$5,062.50
ELT.001.002.002
$3,750.00
ELT.001.002.018
$3,500.00
ELT.001.002.021
$3,500.00
CTM.001.002.003
$3,000.00
ELT.002.011.004
$5,000.00
Brian McDonough
bmcdonough@nbfd.net
100 Civic Center
Newport Beach, California 92658
Payment Terms:
•Extended
•
1 $11,805.00
1 $5,062.50
1 $3,750.00
1 $3,500.00
1 $3,500.00
1 $3,000.00
1 $5,000.00
Total Recurring Fees: $35,617.50
TOTAL YEAR 1:
$42,027.50
TOTAL YEAR 2:
$37,398.38
TOTAL YEAR 3:
$39,268.29
THREE YEAR NOT TO EXCEED TOTAL: $118,694.17
5 July 2023 www.imagetrend.com Page 120 of 35
IMAGETREND'
• "One Time Fees" are due once, as specified by the Milestone terms below.
• "Recurring Fees" are annual fees which recur each year. They are due on each anniversary of the
fee, with the start date beginning upon completion as specified by the Milestone terms below.
The Recurring Fees will escalate in price annually by 5% beginning one year from the last
signature hereto and each year thereafter.
• 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 where, in ImageTrend's
discretion, payments are consistently deficient or late.
• 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.
• ImageTrend will not be responsible for third -party fees related to this Agreement unless
specifically outlined by this Agreement.
• Data Migration is included as long as the following conditions are met:
o The legacy data import process follows a standard procedure with data workbooks that
the Client can use to supply data to be populated into the solution. The workbooks
contain multiple tabs to account for each data relationship associated with Elite data.
The three phases of the legacy data import process include; Phase 1: Initial Review and
Import, Phase 2: Secondary Review and Import, and Phase 3: Final Import. This
implementation does not include the premium legacy data import services where a
legacy data source (e.g. Access Database, SQL files, or Excel workbooks) is provided for
ImageTrend to evaluate for the required effort to be billed at an hourly rate.
h�ill���t•I►1�
Site Available. ImageTrend software is available via the Web. This Site Available Milestone is complete
when ImageTrend has provided Client: 1) at least one web URL to the ImageTrend software, and 2) a
system administrator account with login credentials, and 3) Client is able to log into the ImageTrend
software at that URL.
QuantityDescription Unit Price
Upgrade EMS to Rescue - SaaS
$11,805.00 1 $11,805.00
Additional Annual
Add CAD NFIRS to Existing CAD FEED $1,750.00 1 $1,750.00
Upgrade EMS to Rescue SaaS Setup $2,360.00 1 $2,360.00
Mobile Fire Inspections - SaaS $5,062.50 1 $5,062.50
Agency Level Validation Fire $3,750.00 1 $3,750.00
5 July 2023 www.imagetrend.com Page 121 of 35
Investigations
Permits
Agency Level Validation Fire Setup
Continuum° Fire Content Package
MAG ETREND
$3,500.00 1 $3,500.00
$3,500.00 1 $3,500.00
$500.00 1 $500.00
$3,000.00 1 $3,000.00
Milestone 1 Total $35,227.50
MILESTONE 2
Go Live. The parties understand that while the system can be infinitely configured and refined, that the
software system must reach a level of readiness and it must "go -live" for usage by the end -users in its
intended use cases. Client may desire staged roll out of different features or products for large
implementations, or Client may desire to have all functions go live all at once. In the interest of defining a
fair and objective measurement point, this Go Live Milestone will be complete when the Client's Software
system processes, receives, transmits, generates, or otherwise interacts with the first non -test data
record, excluding non -test data which is migrated on a one-time basis from another system.
Webinar Training 2hr Session
TeleStaff Distribution
$450.00 4 $1,800.00
$5,000.00 1 $5,000.00
Milestone 2 Total $6,800.00
5 July 2023 www.imagetrend.com Page 122 of 35
IMAGETRENay
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
Medium
Low
- wmNreLe anuwown ur pdnrdr snucaown
of one or more Software functions
- Access to one or more Software functions
not available
- Major subset of Software application
impacted that is necessary for usage of the
software
- Minor subsystem failure
-Data entry or access impaired on a limited
basis.
- User error (i.e. training) or forgotten
passwords
- Issue can or must be delegated to local
Client contact as a first level of response for
resolution
wanrn one iii nour or inmai nonncauon
during business hours or via
support.imagetrend.com
Within four (4) hours of initial notification
SIX ib) nours
24 Business
hours
Same day or next business day of initial As
notification appropriate
depending
on nature of
issue and
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.
5 July 2023 www.imagetrend.com Page 123 of 35
MAG ETREND1
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 24 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.
5 July 2023 www.imagetrend.com Page ( 24 of 35
MAG ETREND
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") dated06/15/2023 the "Effective Date"), is entered
into by and between City of Newport Beach, a California municipal corporation and charter city
located at 100 Civic Center, 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
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state and/or federal law, including without limitation, PHI and EPHI. All capitalized terms not
otherwise defined in this Agreement shall have the meanings set forth in the Privacy Standards,
Security Standards or the HITECH Act, as applicable (collectively referred to hereinafter as the
"Confidentiality Requirements"). All references to PHI herein shall be construed to include EPHI.
Business Associate agrees not to use or disclose (or permit the use or disclosure of) PHI in a
manner that would violate the Confidentiality Requirements if the PHI were used or disclosed by
Covered Entity in 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.
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,
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IMAGETREND'
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.
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
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to notify Covered Entity immediately upon receipt by Business Associate of any and all requests
by or on behalf of any and all federal, state and local government authorities served upon
Business Associate for PHI.
8. Implementation of Security Standards; Notice of Security Incidents. Business Associate will use
appropriate safeguards to prevent the use or disclosure of PHI other than as expressly permitted
under this Agreement. Business Associate will implement administrative, physical and technical
safeguards that reasonably and appropriately protect the confidentiality, integrity and
availability of the PHI that it creates, receives, maintains or transmits on behalf of Covered
Entity. Business Associate acknowledges that the HITECH Act requires Business Associate to
comply with 45 C.F.R. §§ 164.308, 164.310, 164.312, 164.314, and 164.316 as if Business
Associate were a Covered Entity, and Business Associate agrees to comply with these provisions
of the Security Standards and all additional security provisions of the HITECH Act. Furthermore,
to the extent feasible, Business Associate will use commercially reasonable efforts to
ensure that the technology safeguards used by Business Associate to secure PHI will render such
PHI unusable, unreadable and indecipherable to individuals unauthorized to acquire or
otherwise have access to such PHI in accordance with HHS Guidance published at 74 Federal
Register 19006 (April 17, 2009), or such later regulations or guidance promulgated by HHS or
issued by the National Institute for Standards and Technology ("NIST") concerning the
protection of identifiable data such as PHI. Business Associate acknowledges and agrees that the
HIPAA Omnibus Rule finalized January 25, 2013 at 78 Fed. Reg. 5566 requires Business Associate
to comply with new and modified obligations imposed by that rule under 45 C.F.R. §164.306, 45
C.F.R. § 164.308, 45 C.F.R. § 163.310, 45 C.F.R. § 164.312, 45 C.F.R. § 164.316, 45 C.F.R. §
164.502, 45 C.F.R. § 164.504. Lastly, Business Associate will promptly report to Covered Entity
any successful Security Incident of which it becomes aware. At the request of Covered Entity,
Business Associate shall identify: the date of the Security Incident, the scope of the Security
Incident, the Business Associate's response to the Security Incident and the 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.A, governs the determination of the date of a HIPAA Breach. In
the event of any conflict between this Section 9.A 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
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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.
Data Breach Notification and Mitigation Under Other Laws. In addition to the
requirements of Section 9.A, 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.
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,
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IMAGETRENDJ
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.
A. 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.
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:
A. 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
B. 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.
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MAG ETRENDJ
If to Covered Entity:
Newport Beach Fire Department
Attn: Brian McDonough
100 Civic Center
Newport Beach, California 92658
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
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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 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.
SIGNATURES ON FOLLOWING PAGE
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MAG ETRENU
IN WITNESS WHEREOF: the undersigned parties, each having authority to bind their respective
organizations, hereby agree.
Client
By:
Grace . eung
City nagerr `-
Date: I
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date: 7- 5.23
B ?�
A ro . Har
City Attorney 0� 2,
ATTEST:
Date:
By: C &�"
Leilani I. Brown
City Clerk
ImageTr d
By: TIgned in C
Joseph Graw
President
Date:
Signed in Counterpart
By:
Daniel Quam
Secretary
Date:
[END OF SIGNATURES]
5 July 2023 www.imagetrend.com Page i 35 of 35
IMAGETREND°
IN WITNESS WHEREOF: the undersigned parties, each having authority to bind their respective
organizations, hereby agree.
Client ImageT�rnd
By: By:
Grace K. Leung Joseph Gra
City Manager President
Date: Date: �A �a3
By:� ���
Daniel Quam
Secretary
Date:
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date: 7, S- 23
B: Y"
A ro 4Har�- - - � 3
City Attorney o�`GI-
ATTEST:
Date:
By:
Leilani I. Brown
City Clerk
[END OF SIGNATURES]
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