HomeMy WebLinkAboutAgreement A-25-489 with ImageTrend LLC.pdf Agreement No. 25-489
ImageTrend
Master Subscription Agreement
This Master Subscription Agreement (the "MSA") is between the Customer listed in the signature block
below ("Customer") and ImageTrend, LLC ("ImageTrend"), a Minnesota entity. (each, a "Party" and
together,the"Parties.")
The purpose of this Agreement is to establish the terms and conditions under which Customer may purchase
ImageTrend's Services and Professional Services as described in an Order Form, Statement of Work or
other document signed or agreed to by the Parties.
In the event of any inconsistency or conflict between the terms of the MSA and the terms of any Order
Form or Statement of Work,the terms of the Order Form or Statement of Work shall control.
SECTION 1.ACCESS TO THE SERVICES
1.1 Service. ImageTrend will make the Services and Customer Data available pursuant to this Agreement
and the applicable Order Form(s) in accordance with Customer's Service Plan. ImageTrend will use
commercially reasonable efforts to make the Services available pursuant to the Service Level Agreement
which is located at https://www.imagetrend.com/le ag l/sla.
1.2 Support. ImageTrend will, at no additional charge, provide Customer standard customer support for
the Services as detailed on the Site at https://www.imagetrend.com/support/.
1.3 Implementation Services. ImageTrend may provide Implementation Services subject to the terms and
conditions stated in a Project Plan. Any education or training hours expire one year from the date of
execution of such Order Form.
1.4 Professional Services.ImageTrend may provide Professional Services,including education or training,
subject to the terms and conditions stated in a Project Plan or Statement of Work. Any education or training
hours expire one year from the date of execution of such Statement of Work.
1.5 Updates. Customer acknowledges that ImageTrend may update the features and functionality of the
Services during the Subscription Term. Customer will be notified prior to upgrade or maintenance releases.
ImageTrend will not materially decrease the overall functionality of the Services purchased by Customer
during the Subscription Term. ImageTrend shall provide Customer with thirty(30)days'advance notice of
any deprecation of any material feature or functionality.
SECTION 2.USE OF THE SERVICES
2.1 Compliance.Customer is responsible for compliance with the provisions of this Agreement for any and
all activities that occur under an Account.Without limiting the foregoing, Customer will ensure that its use
of the Services is compliant with all applicable laws and regulations as well as any and all privacy notices,
agreements or other obligations Customer may maintain or enter into.
1
ImageTrend It
2.2 System Requirements.Customer is responsible for procuring and maintaining the network connections
that connect Customer's network to the Services including, but not limited to, browser software that
supports protocols used by ImageTrend, including the Transport Layer Security (TLS) protocol or other
protocols accepted by ImageTrend.ImageTrend assumes no responsibility for the reliability or performance
of any connections as described in this Section.
2.3 No Competitive Access.Customer may not access the Services for competitive purposes or if Customer
is a competitor of ImageTrend,LLC.
2.4 Product Specific Terms.The provision and use of certain Services are subject to ImageTrend's Product
Specific Terms located at https://www.imagetrend.com/legal/productspecificterms.
SECTION 3.TERM,CANCELLATION AND TERMINATION
3.1 Term. The term of this Master Subscription Agreement begins on the date this MSA is fully executed
(the"Effective Date") and will remain in effect for a period of three years or until this MSA is terminated
in accordance with the terms hereof,whichever occurs first.Unless a subscription to a Service is terminated
in accordance with this MSA or the applicable Order Form, or unless otherwise stated in the applicable
Order Form, Customer's subscription to a Service will renew upon written approval for a one-year
Subscription Term at the end of each prior Subscription Term for no more than two successive years
following the initial term. The Director of the Department of Public Health or his or her designee is
authorized to sign the written approval on behalf of the Customer.
3.2 Cancellation. Either Party may elect to terminate an Account and subscription to a Service at the end
of the then-current Subscription Term by providing notice to revenueoperationsklmageTrend.com no less
than sixty(60)days prior to the end of such Subscription Term.
3.3 Termination for Cause.A Party may terminate this Agreement for cause(a)upon written notice to the
other Party of a material breach by the other Party if such breach remains materially uncured after thirty
(30) days from the date of receipt of such notice; or(b)if the other Party becomes the subject of a petition
in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for
the benefit of creditors.
ImageTrend will refund any prepaid fees covering the remainder of the Subscription Term as of the effective
date of termination if this Agreement is terminated by Customer in accordance with this Section 3.3 for
ImageTrend's uncured material breach.
Customer must pay any unpaid fees covering the remainder of the Subscription Term pursuant to all
applicable Service Order if ImageTrend terminates this Agreement for Customer's material breach in
accordance with this Section. In no event will ImageTrend's termination for cause relieve Customer of its
obligation to pay any fees payable to ImageTrend for the period prior to termination.
3.4 Non-appropriation. In the event Customer does not receive sufficient funds from the legislature that
appropriates its budget, Customer will provide ImageTrend with written notice of such non-appropriation.
In such event, the Agreement and any applicable Order Forms and Statements of Work will be terminated
at the end of the then-existing Term. ImageTrend will be entitled to payment for Services and any
Implementation Services or Professional Services provided through the date of notification or a date
determined by such legislature,whichever is later.
2
ImageTrend S
3.5 Export of Customer Data upon termination or expiration.Upon Customer's written request,ninety
(90) days after the effective date of termination or expiration, ImageTrend will make Customer Data
available to Customer.Thereafter,ImageTrend will delete Customer Data in accordance with MST 800-88
standards, unless prohibited by law or legal order. For clarity, Customer Data that has been de-identified
pursuant to section 6.5 or Aggregate Data Insights derived from Aggregate Data pursuant to section 6.6
shall not be subject to such deletion.
SECTION 4.USAGE AUDIT AND PLAN MODIFICATIONS
4.1 Usage Audit. Once per year, ImageTrend will conduct an audit of Customer's use of the Services. In
the event such audit shows increased usage beyond what is listed in the Order Form, ImageTrend will
provide 30 days'notice of an increase in fees related to such increased usage.
4.2 Payment Portals. If Customer mandates that ImageTrend use a vendor payment portal or compliance
portal that charges ImageTrend a subscription fee or a percentage of any uploaded invoice as a required
cost of doing business,Customer will be invoiced by ImageTrend for,and Customer is obligated to pay,the
cost of this fee.
4.3 Taxes.Unless otherwise stated,ImageTrend's Subscription Charges do not include any Taxes.Customer
is responsible for paying Taxes assessed in connection with the subscription to the Services except those
assessable against the ImageTrend Group measured by its net income. ImageTrend will invoice the
Customer for such Taxes if ImageTrend believes it has a legal obligation to do so and Customer agrees to
pay such Taxes if so invoiced. ImageTrend agrees to exempt Customer from any taxes for which Customer
provides to ImageTrend a tax exemption certificate prior to the issuance of an invoice;provided,however,
that no such exemption shall be extended to Customer following written notice to ImageTrend from a taxing
authority of appropriate jurisdiction that Customer does not qualify for the claimed exemption.
SECTION 5. CONFIDENTIAL INFORMATION
Each Party will protect the other's Confidential Information from unauthorized use,access or disclosure in
the same manner as each Party protects its own Confidential Information,but with no less than reasonable
care. Except as otherwise expressly permitted pursuant to this Agreement, each Party may use the other
Parry's Confidential Information solely to exercise its respective rights and perform its respective
obligations under this Agreement and shall disclose such Confidential Information (a) solely to the
employees and/or non-employee service providers and contractors who have a need to know such
Confidential Information and who are bound by terms of confidentiality intended to prevent the misuse of
such Confidential Information; (b)as necessary to comply with an order or subpoena of any administrative
agency or court of competent jurisdiction;or(c)as reasonably necessary to comply with any applicable law
or regulation. The provisions of this Section 5 shall control over any non-disclosure agreement by and
between the Parties and any such non-disclosure agreement shall have no further force or effect with respect
to the exchange of Confidential Information after the execution of this Agreement. This section shall not
apply to any information which (a) was publicly known prior to the time of disclosure by the disclosing
Party, or (b)becomes publicly known after such disclosure through no action or inaction of the receiving
Party in violation of this Agreement.Given the unique nature of Confidential Information,the Parties agree
that any violation or threatened violation by a Party to this Agreement with respect to Confidential
Information may cause irreparable injury to the other Party. Therefore, the Parties agree such violation or
3
ImageTrend 2
threatened violation shall entitle the other Party to seek injunctive or other equitable relief in addition to all
legal remedies.
SECTION 6. CUSTOMER DATA SECURITY,USE AND REQUIREMENTS
6.1 Safeguards. ImageTrend will maintain commercially reasonably administrative, physical, and
technical safeguards for protection of the security, confidentiality and integrity of Customer Data. Those
safeguards will include,but will not be limited to,measures designed to prevent unauthorized access to or
disclosure of Customer Data (other than by Customer). ImageTrend's compliance with such safeguards
shall be deemed compliance with ImageTrend's obligations to protect Customer Data as set forth in the
Agreement.
6.2 Customer Data. ImageTrend will, and Customer hereby instructs ImageTrend to, access Customer
Data to provide,secure and improve the Services. Customer is solely responsible for the accuracy,content,
and legality of all Customer Data.
6.3 Business Associate Agreement.To the extent Customer is considered a"covered entity"under 45 CFR
160.103 of the Health Insurance Portability and Accountability Act of 1996, and its implementing
regulations ("HIPAA"),the Parties shall execute a Business Associate Agreement,which shall be attached
hereto as Exhibit A and incorporated herein by reference into this Agreement once signed by the Parties.
6.4 Data Export Authorization
Customer hereby authorizes ImageTrend to transmit Customer Data to an end point as is required by the
Service in order for it to function as intended.
6.5 De-Identification. ImageTrend may use Customer Data to create de-identified data (a "De-identified
Data Set").Such De-identified Data Set shall no longer constitute,as applicable,identifiable Customer Data
or Protected Health Information, as defined under HIPAA at 45 CFR 160.103, and ImageTrend may, in its
discretion, transform, analyze, distribute and redistribute, create derivative works of, license, make
available to third party researchers, or otherwise use such De-identified Data Set except as limited by
applicable law and regulation. Notwithstanding any of the foregoing, ImageTrend shall create the De-
identified Data Set in accordance with the then current HIPAA standards for de-identification set forth at
45 CFR§ 164.514(b).
6.6 Data Aggregation. Customer hereby grants ImageTrend a non-exclusive license during the term of this
Agreement to use, reproduce, display, make derivative or collective works of and otherwise exploit
Customer Data, including the right to compile Customer Data collected and/or combine it with data
collected from other data sources to create Aggregate Data and to use such Aggregate Data to create
Aggregate Data Insights;
6.7 Data Ownership. Customer hereby irrevocably assigns, transfers, and conveys to ImageTrend all of
the Customer's right, title, and interest in and to a De-identified Data Set and Aggregate Data Insights,
including the right to sue, counterclaim, and recover for all past, present, and future infringement,
misappropriation, or dilution thereof, and all rights corresponding thereto throughout the world (the
"Assignment"). To the extent Customer cannot make the Assignment as a matter of applicable law,
Customer hereby irrevocably grants to ImageTrend,without further consideration, an exclusive,perpetual,
worldwide,transferable,sublicensable(through multiple tiers),royalty-free,fully paid-up license under any
4
ImageTrend 2
and all such rights to exercise any and all present or future rights in the De-identified Data Set and the
Aggregate Data Insights.
SECTION 7.TEMPORARY SUSPENSION
In the event ImageTrend detects or has reasonable suspicion of any Malicious Software connected to
Customer's Account or use of a Service by Customer, ImageTrend reserves the right to restrict
functionalities or suspend the Services (or any part thereof), Customer's Account or Customer's rights to
access and use the Services and remove,disable or quarantine any Customer Data or other content.Unless
legally prohibited from doing so or where ImageTrend is legally required to take immediate action,
ImageTrend will use commercially reasonable efforts to notify Customer as soon as practicable when taking
any of the foregoing actions. ImageTrend will use commercially reasonable efforts to (a) mitigate any
interruption to the Service,and(b)restore the Services as soon as practicable.ImageTrend will not be liable
to Customer or any other third party for any modification, suspension or discontinuation of Customer's
rights to access and use the Services under this Section 7. ImageTrend may refer any suspected fraudulent,
abusive, or illegal activity by Customer to law enforcement authorities at ImageTrend's sole discretion.
SECTION 8.NON-IMAGETREND SERVICES
If Customer decides to enable,access or use Non-ImageTrend Services,Customer's access and use of such
Non-ImageTrend Services shall be governed solely by the terms and conditions of such Non-ImageTrend
Services. ImageTrend does not endorse,is not responsible or liable for,and makes no representations as to
any aspect of such Non-ImageTrend Services,including,without limitation,their content or the manner in
which they handle,protect,manage or process data(including Customer Data),or any interaction between
Customer and the provider of such Non-ImageTrend Services. ImageTrend cannot guarantee the continued
availability of such Non-ImageTrend Service features. Customer irrevocably waives any claim against
ImageTrend with respect to such Non-ImageTrend Services. ImageTrend is not liable for any damage or
loss caused or alleged to be caused by or in connection with Customer's enablement, access or use of any
such Non-ImageTrend Services,or Customer's reliance on the privacy practices,data security processes or
other policies of such Non-ImageTrend Services.
SECTION 9.INTELLECTUAL PROPERTY RIGHTS
9.1 Intellectual Property Rights.Each Party shall retain all rights,title and interest in any of its respective
Intellectual Property Rights. The rights granted to Customer to use the Service(s)under this Agreement do
not convey any additional rights in the Service(s) or in any Intellectual Property Rights of ImageTrend
associated therewith. Subject only to limited rights to access and use the Service(s) as expressly stated
herein, all rights,title and interest in and to the Services and all hardware, Software and other components
of or used to provide the Services and ImageTrend's machine learning algorithms, including all related
Intellectual Property Rights,will remain with ImageTrend and belong exclusively to ImageTrend.
9.2 Feedback.ImageTrend shall have a fully paid-up,royalty-free,worldwide,transferable,sub-licensable
(through multiple layers), assignable, irrevocable and perpetual license to implement, use, modify, and
incorporate into the Services or otherwise use any suggestions,enhancement requests,recommendations or
other feedback regarding the Services that ImageTrend receives from Customer or other third parties acting
on Customer's behalf. ImageTrend also reserves the right to seek intellectual property protection for any
features, functionality or components that may be based on or that were initiated by suggestions,
5
ImageTrend S
enhancement requests,recommendations or other feedback regarding the Services that ImageTrend receives
from Customer or other third parties acting on Customer's behalf.
9.3 Use of ImageTrend Marks. Customer may only use the ImageTrend Marks in a manner permitted by
ImageTrend, provided Customer does not attempt, now or in the future, to claim any rights in the
ImageTrend Marks, dilute or degrade the distinctiveness of the ImageTrend Marks, or use the ImageTrend
Marks to disparage or misrepresent ImageTrend or ImageTrend Services. ImageTrend may use Customer
Marks with written agreement of Customer.
9.4 Ownership of Customer Data. Customer shall retain ownership rights, including all Intellectual
Property Rights,to all Customer Data.
SECTION 10.REPRESENTATIONS,WARRANTIES AND DISCLAIMERS
10.1 Warranties. Each Party represents and warrants to the other that (a) this Agreement has been duly
executed and delivered and constitutes a valid and binding agreement enforceable against such Party in
accordance with its terms; (b) no authorization or approval from any third party is required in connection
with such Parry's execution,delivery or performance of this Agreement;and(c)the execution,delivery and
performance of the Agreement does not and will not violate the terms or conditions of any other agreement
to which it is a party or by which it is otherwise bound.
10.2ImageTrend Warranties. ImageTrend warrants that during an applicable Subscription Term (a)
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; (b) the Services will perform materially in
accordance with the applicable documentation; and(c)all implementation services and will be provided in
a professional and workmanlike manner in accordance with applicable industry standards. For any breach
of a warranty in this section, Customer's exclusive remedies are those described in Section 3.3 herein. The
warranties herein do not apply to any misuse or unauthorized modification of the Services made by
Customer.
To the extent applicable, ImageTrend represents and warrants to Customer that ImageTrend (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 ImageTrend being
excluded from participation in the Federal Healthcare Programs. This shall be an ongoing representation
and warranty during the term of this Agreement,and ImageTrend shall immediately notify Customer of any
change in the status of the representations and warranty set forth in this section.
10.3 Disclaimers. EXCEPT AS SPECIFICALLY SET FORTH IN SECTION 10, THE SERVICES ARE
PROVIDED ON AN "AS IS"AND "AS AVAILABLE" BASIS, WITHOUT ANY WARRANTIES OF
ANY KIND TO THE FULLEST EXTENT PERMITTED BY LAW,AND IMAGETREND EXPRESSLY
DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING,
BUT NOT LIMITED TO,ANY IMPLIED WARRANTIES OF MERCHANTABILITY,TITLE,FITNESS
FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. CUSTOMER ACKNOWLEDGES
THAT IMAGETREND DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED,
6
ImageTrend S
TIMELY,SECURE,ERROR-FREE OR FREE FROM VIRUSES OR OTHER MALICIOUS SOFTWARE,
AND NO INFORMATION OR ADVICE OBTAINED BY CUSTOMER FROM IMAGETREND OR
THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN
THIS AGREEMENT.
SECTION 11.INDEMNIFICATION
11.1 Indemnification by ImageTrend. ImageTrend will indemnify and defend the Customer from and
against any claim brought by a third party against Customer alleging that Customer's use of a Service as
permitted hereunder (1) infringes or misappropriates a third parry's valid patent, copyright, trademark or
trade secret(an"IP Claim");(2)is grossly negligent or constitutes willful misconduct;(3)resulted in fraud;
(4) resulted in personal injury or death (any of (1) through (4) are a "Claim"). ImageTrend shall, at
ImageTrend's expense, defend such Claim and pay damages finally awarded against Customer in
connection therewith,including reasonable fees and expenses of attorneys engaged by ImageTrend for such
defense,provided that(a)Customer promptly notifies ImageTrend of the threat or notice of such Claim;(b)
ImageTrend will have sole,exclusive control and authority to select defense attorneys,defend and/or settle
any such Claim(however, ImageTrend shall not settle or compromise any claim that results in liability or
admission of any liability by Customer without Customer's prior written consent); and(c) Customer fully
cooperates with ImageTrend in connection therewith. If use of a Service by Customer has become, or, in
ImageTrend's opinion,is likely to become,the subject of any IP Claim,ImageTrend may, at ImageTrend's
option and expense(i)procure for Customer the right to continue using the Service(s)as set forth hereunder;
(ii)replace or modify a Service to make it non-infringing; or(iii)if options(i)or(ii) are not commercially
reasonable or practicable as determined by ImageTrend,terminate Customer's subscription to the Service(s)
and repay Customer, on a pro-rata basis, any Subscription Charges paid to ImageTrend for the unused
portion of Customer's Subscription Term for such Service(s). ImageTrend will have no liability or
obligation under this Section 11.1 with respect to any IP Claim if such claim is caused in whole or in part
by(x)compliance with designs,data,instructions or specifications provided by Customer;(y)modification
of the Service(s) by anyone other than ImageTrend or ImageTrend Personnel; or (z) the combination,
operation or use of the Service(s)with other hardware or software where a Service would not by itself be
infringing. The provisions of this Section 11.1 state the sole, exclusive and entire liability of ImageTrend
to Customer and Customer's sole remedy with respect to a Claim brought by reason of access to or use of
a Service by Customer.
11.2 Indemnification by Customer. Customer will indemnify, defend and hold ImageTrend harmless
against any claim brought by a third party against ImageTrend(a)arising from or related to Customer's use
of a Service in breach of this Agreement(and not arising solely from the Service itself); or(b)alleging that
Customer Marks or content selected by Customer in the design and implementation of the Services,
including but not limited to the URL, graphics, illustrations, logos, and marks, or Customer Data infringes
or misappropriates a third parry's valid patent, copyright, trademark or trade secret; provided that (i)
ImageTrend promptly notifies Customer of the threat or notice of such claim; (ii) Customer will have the
sole and exclusive control and authority to select defense attorneys, and to defend and/or settle any such
claim(however, Customer shall not settle or compromise any claim that results in liability or admission of
any liability by ImageTrend without ImageTrend's prior written consent); and (iii) ImageTrend fully
cooperates with Customer in connection therewith.
SECTION 12.LLMTATION OF LIABILITY
7
ImageTrend 2
12.1 EXCLUSION OF DAMAGES. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL
THEORY (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE) SHALL EITHER
PARTY TO THIS AGREEMENT, OR THEIR RESPECTIVE AFFILIATES, OFFICERS, DIRECTORS,
EMPLOYEES,AGENTS,SERVICE PROVIDERS,SUPPLIERS OR LICENSORS,BE LIABLE TO THE
OTHER PARTY OR ITS AFFILIATES FOR ANY LOST PROFITS,LOST SALES OR BUSINESS,LOST
DATA(WHERE SUCH DATA IS LOST IN THE COURSE OF TRANSMISSION VIA CUSTOMER'S
SYSTEMS OR OVER THE INTERNET THROUGH NO FAULT OF IMAGETREND), BUSINESS
INTERRUPTION, LOSS OF GOODWILL, COSTS OF COVER OR REPLACEMENT, OR FOR ANY
OTHER TYPE OF INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR
PUNITIVE LOSS OR DAMAGES, OR FOR ANY OTHER INDIRECT LOSS OR DAMAGES
INCURRED BY THE OTHER PARTY OR ITS AFFILIATES IN CONNECTION WITH THIS
AGREEMENT, THE SERVICES OR PROFESSIONAL SERVICES, REGARDLESS OF WHETHER
SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN
SUCH DAMAGES.
12.2 LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN
THIS AGREEMENT, IMAGETREND'S AGGREGATE LIABILITY TO THE CUSTOMER ARISING
OUT OF THIS AGREEMENT, THE SERVICES OR PROFESSIONAL SERVICES, SHALL IN NO
EVENT EXCEED THE SUBSCRIPTION CHARGES AND/OR PROFESSIONAL SERVICES FEES
PAID BY THE CUSTOMER DURING THE TWELVE (12) MONTHS PRIOR TO THE FIRST EVENT
OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. CUSTOMER ACKNOWLEDGES AND
AGREES THAT THE ESSENTIAL PURPOSE OF THIS SECTION 12.2 IS TO ALLOCATE THE RISKS
UNDER THIS AGREEMENT BETWEEN THE PARTIES AND LIMIT POTENTIAL LIABILITY
GIVEN THE SUBSCRIPTION CHARGES AND PROFESSIONAL SERVICES FEES,WHICH WOULD
HAVE BEEN SUBSTANTIALLY HIGHER IF IMAGETREND WERE TO ASSUME ANY FURTHER
LIABILITY OTHER THAN AS SET FORTH HEREIN. IMAGETREND HAS RELIED ON THESE
LIMITATIONS IN DETERMINING WHETHER TO PROVIDE CUSTOMER WITH THE RIGHTS TO
ACCESS AND USE THE SERVICES AND/OR THE PROFESSIONAL SERVICES PROVIDED FOR IN
THIS AGREEMENT. THE LIMITATIONS SET FORTH IN SECTION 12.2 SHALL NOT APPLY TO
CLAIMS OR DAMAGES RESULTING FROM IMAGETREND'S INDEMNITY OBLIGATIONS IN
SECTION 11.1 OF THIS AGREEMENT.
12.3 LIMITATION OF LIABILITY IN THE AGGREGATE. THE LIMITATION OF LIABILITY
PROVIDED FOR HEREIN APPLIES IN AGGREGATE TO ANY AND ALL CLAIMS BY CUSTOMER
AND ITS AFFILIATES,AND SHALL NOT BE CUMULATIVE.
12.4 Enforceable against ImageTrend. Any claims or damages that Customer may have against
ImageTrend shall only be enforceable against ImageTrend and not any other entity, nor any officers,
directors,representatives or agents of ImageTrend.
SECTION 13.ASSIGNMENT,ENTIRE AGREEMENT AND AMENDMENT
13.1 Assignment.Except as permitted herein,neither party may,directly or indirectly,by operation of law
or otherwise, assign all or any part of this Agreement or rights under this Agreement, or delegate
performance of its duties under this Agreement, without written prior consent of the other party, which
consent will not be unreasonably withheld.Notwithstanding the foregoing,(a)subject to Section 2.6 herein,
8
ImageTrend S
Customer may, without ImageTrend's consent, assign this Agreement in connection with any merger or
change of control of Customer or the sale of all or substantially all of Customer's assets provided that any
such successor agrees to fulfill its obligations pursuant to this Agreement;and(b)ImageTrend may,without
Customer's consent, assign this Agreement in connection with any merger or change of control of
ImageTrend or the sale of all or substantially all of ImageTrend's assets provided that any such successor
agrees to fulfill its obligations pursuant to this Agreement. Subject to the foregoing restrictions, this
Agreement will be fully binding upon, inure to the benefit of and be enforceable by the Parties and their
respective successors and assigns.
13.2 Entire Agreement. This Agreement constitutes the entire agreement and supersedes any and all prior
agreements between Customer and ImageTrend,with regard to the subject matter hereof. This Agreement
shall apply in lieu of the terms or conditions in any purchase order, request for information, request for
proposal, or other order documentation Customer provide(s) and all such terms or conditions in such
purchase order, request for information, request for proposal, or other order documentation are null and
void. Except as expressly stated herein, there are no other agreements, representations, warranties or
commitments which may be relied upon by either Party with respect to the subject matter hereof.There are
no oral promises, conditions,representations,understandings,interpretations or terms of any kind between
the Parties, except as may otherwise be expressly provided herein. The headings used herein are for
convenience only and shall not affect the interpretation of the terms of this Agreement.
13.3 Waiver. Either Party's failure to enforce at any time any provision of this Agreement does not
constitute a waiver of that provision or of any other provision of this Agreement.
SECTION 14. SEVERABILITY
If any term in this Agreement is determined to be invalid or unenforceable by a competent court or
governing body, such term shall be replaced with another term consistent with the purpose and intent of
this Agreement,and the remaining provisions of this Agreement shall remain in effect.
SECTION 15.RELATIONSHIP OF THE PARTIES
The Parties are independent contractors, and this Agreement does not create a partnership, franchise,joint
venture, general agency, fiduciary or employment relationship between the Parties. Customer is solely
responsible for determining whether the Services meet Customer's technical, business, or regulatory
requirements.
SECTION 16.NOTICE
16.1 Notices to Customer.All notices provided by ImageTrend to Customer under this Agreement may be
delivered in writing by (a) nationally recognized delivery service ("Courier") or U.S. mail to the contact
mailing address provided by Customer on any Order Form; or (b) electronic mail to the electronic mail
address provided for the Account owner.
16.2 Notices to ImageTrend.All notices provided by Customer to ImageTrend under this Agreement must
be delivered in writing by(a)Courier or U.S.mail to 1305 Corporate Center Drive, Suite 500,Eagan,MN
55121 Attn: Legal Department; or(b) electronic mail to contractsklmageTrend.com.
9
ImageTrend S
16.3 Timing of Notices. All notices provided by either Party to the other shall be deemed to have been
given immediately upon delivery by electronic mail; or upon the earlier of proof of receipt or two (2)
business days after being deposited in the mail or with a Courier as permitted above.
SECTION 17.GOVERNING LAW
This Agreement shall be governed by the laws of the State of Minnesota, without reference to conflict of
laws principles.Any disputes under this Agreement shall be resolved in a court of general jurisdiction in
Hennepin County, Minnesota. Customer hereby expressly agrees to submit to the exclusive personal
jurisdiction of this jurisdiction for the purpose of resolving any dispute relating to this Agreement or relating
to access to or use of the Services by Customer.
SECTION 18.ETHICAL CONDUCT AND COMPLIANCE
Neither Party,nor any of its employees or agents,has offered,received or been offered,directly or indirectly,
any illegal or improper bribe or kickback(whether in the form of a payment,gift,undue advantage,or thing
of value), or will offer or accept the same in connection with this Agreement.
SECTION 19. SURVIVAL
Sections 2.1, 3.5, 5, 6.5-6.7, 10-17 and 20 shall survive termination of this Agreement with respect to use
of the Services by Customer.Termination of this Agreement shall not limit a Party's liability for obligations
accrued as of or prior to termination or for any breach of this Agreement.
SECTION 20.INSURANCE
ImageTrend shall comply with all the insurance requirements in Exhibit B to this Agreement.
SECTION 21. STATE AUDIT REQUIREMENTS
If the compensation to be paid by the Customer under this Agreement exceeds $10,000, ImageTrend is
subject to the examination and audit of the California State Auditor, as provided in Government Code
section 8546.7, for a period of three years after final payment under this Agreement.This section survives
the termination of this Agreement.Additional Federal audit requirements may apply if any portion of the
compensation to be paid by the Customer under this Agreement is also provided by Federal funding.
SECTION 22.DEFINITIONS
When used in this Agreement with initial letters capitalized,these terms have the following meaning:
"Account"means any accounts or instances created by, or on behalf of, Customer within the Services.
"Aggregate Data"means the compilation of Customer Data collected over time and/or the combination of
Customer Data with data collected from other data sources,and the derived data resulting from the analysis
and processing of such compiled and combined data to create Aggregate Data Insights.
"Aggregate Data Insights"means the conclusions,patterns,trends,metrics,statistical models,predictions,
or other analytical outcomes derived from the processing,examination,or interpretation of Aggregate Data.
10
ImageTrend S
"Agreement"means the Master Subscription Agreement together with any and all Product Specific Terms,
Order Form and other mutually executed documents. The Master Subscription Agreement may also be
referred to as"MSA."
"Confidential Information"means all information disclosed by one Party to the other Party which is in
tangible form and designated as confidential or is information, regardless of form, which a reasonable
person would understand to be confidential given the nature of the information and circumstances of
disclosure, including but not limited to the pricing terms, product plans and designs, business processes,
security notifications, database structures, database schemas and customer communications.
Notwithstanding the foregoing,Confidential Information shall not include information that(a)was already
known to the receiving Party at the time of disclosure by the disclosing Party; (b)was or is obtained by the
receiving Party from a third party not known by the receiving Party to be under an obligation of
confidentiality with respect to such information; (c) is or becomes generally available to the public other
than by violation of this Agreement or another valid agreement between the Parties; or (d) was or is
independently developed by the receiving Party without the use of the disclosing Parry's Confidential
Information.
"Customer Data"means all electronic data,text,messages,communications or other materials submitted
to and stored within a Service by Customer in connection with Customer's use of such Service."Customer"
Data" does not include Protected Health Information that has been de-identified pursuant to section 6.5 of
this Agreement and Aggregate Data Insights derived from Aggregate Data pursuant section 6.6.
"Force Majeure Event"means any circumstances beyond ImageTrend's reasonable control, including,
but not limited to,an act of God,act of government,flood,fire,earthquake,civil unrest,act of terror,strike
or other labor problem(other than one involving ImageTrend employees),Internet service provider failure
or delay,Non-ImageTrend Services,or acts undertaken by third parties,including without limitation,denial
of service attack.
"ImageTrend Marks"means any trademarks, service marks, service or trade names, taglines, logos or
other designations of ImageTrend,whether registered or unregistered.
"Intellectual Property Rights"means any and all of a Parry's patents,inventions,copyrights,trademarks,
domain names,trade secrets,know-how and any other intellectual property and/or proprietary rights.
"Malicious Software"means any viruses, malware, Trojan horses, time bombs, or any other similar
harmful software.
"Non-ImageTrend Services"means third party products, applications, services, software, networks,
systems,directories,websites,databases and information which a Service links to,or which Customer may
connect to or enable in conjunction with a Service,including,without limitation,Non-ImageTrend Services
which may be integrated directly into an Account by Customer or at Customer's direction.
"Order Form"means ImageTrend's generated order form(s) executed by Customer with respect to
Customer's subscription to a Service.
"Personnel"means employees and/or non-employee contractors of ImageTrend engaged by ImageTrend
in connection with performance hereunder.
11
ImageTrend 2
"Planned Downtime"means planned downtime for upgrades and maintenance to the Services scheduled
in advance of such upgrades and maintenance.
"Product Specific Terms"means ImageTrend's Product Specific Terms located at
https://www.imagetrend.com/legal/productspecifictenns.
"Professional Services"means professional services(including any training,success and implementation
services)provided by ImageTrend Personnel as indicated on an Order Form or other written document such
as an SOW.
"Service(s)"means the products and services that are used or ordered by Customer via an Order Form
referencing this Agreement, and made available by ImageTrend, via the applicable Customer login.
"Services" exclude (a) Non-ImageTrend Services as that term is defined in this Agreement; and (b) any
Additional Features or Associated Services that are not provided under this Agreement or Customer's
Service Plan.From time to time,the names and descriptions of the Services or any individual Service may
be changed. To the extent Customer is given access to such Service as so described by virtue of a prior
Service Order or other prior acceptance of this Agreement,this Agreement shall be deemed to apply to such
Service as newly named or described.
"Site"means a website operated by ImageTrend, including https://www.ImageTrend.com, as well as all
other websites that ImageTrend operates(but does not include the Services).
"Subscription Charges"means all charges associated with Customer's access to and use of an Account.
"Subscription Term"means the period during which Customer has agreed to subscribe to a Service.
"Taxes" means taxes,levies,duties or similar governmental assessments,including value-added,sales,use
or withholding taxes assessable by any local,state,provincial or foreign jurisdiction.
IN WITNESS WHEREOF: the undersigned parties, each having authority to bind their respective
organizations,hereby agree.
Customer—County of Fresno ImageTrend,LLC
tno/r SGiGG
1
Jon Sachs(Sap 4,2025 12:09:33 MDT)
Signature Signature
Print Name: Ernest Buddy Mendes Print Name: Jon Sachs
Title: Chairman of the Board of Supervisors Title: CFO
of the County of Fresno
Date: -,z3 -aZ)� Date: 09/04/2025
ATTEST:
BERNICE E.SEIDEL
Clerk of the Board of Supervisors 12
county of Fresno,State of California
By— Deputy
IMAGETREND LICENSE MANAGEMENT STATEMENT OF WORK
ImageTrend License ManagementT" is a complete web-based,end-to-end license and certification management
solution that serves the needs of the emergency medical services community,scaling to statewide and regional
capacities. Often sold with License Management is our NREMT Integration,our Collaborative Fusion integration
and our Payment Gateway Integration.
.........................................................................................................................................................................................................................................................................................................................................
IMAGETREND RESPONSIBILITIES
• Create License Management site.
• Facilitate site setup.
• Complete setup of NREMT,Collaborative Fusion and Payment Gateway integrations.
• Provide client with education materials on using and managing their License Management site.
• Continue supporting the client with their License Management site and integrations.
........................................................................................................................................................................................................................................................................................................................................
CLIENT RESPONSIBILITIES
• Administer and manage License Management site, including end-user access and training.
• Provide required details for purchased integrations.
.........................................................................................................................................................................................................................................................................................................................................
PREREQUISITES
• Client has a NEMSIS v2 Service, EMS,or State Bridge with live incidents stored within the system.
• Client has an executed contract for License Management.
.........................................................................................................................................................................................................................................................................................................................................
IMAGETREND DELIVERABLES
• ImageTrend will facilitate the complete and successful transfer of all legacy data from the client's old site
to their new License Management site.
• ImageTrend will provide the client with login credentials for License Management administrators.
Business Private
Exhibit B
Insurance Requirements
1. Required Policies
Without limiting the Customer's right to obtain indemnification from ImageTrend or any third parties,
ImageTrend,at its sole expense, shall maintain in full force and effect the following insurance policies
throughout the term of this Agreement.
(A) Commercial General Liability. Commercial general liability insurance with limits of not less
than Two Million Dollars($2,000,000)per occurrence and an annual aggregate of Four Million
Dollars($4,000,000). This policy must be issued on a per occurrence basis. Coverage must
include products, completed operations,property damage,bodily injury,personal injury, and
advertising injury. ImageTrend shall obtain an endorsement to this policy naming the Customer
of Fresno,its officers, agents, employees, and volunteers,individually and collectively, as
additional insureds,but only insofar as the operations under this Agreement are concerned. Such
coverage for additional insureds will apply as primary insurance and any other insurance,or self-
insurance,maintained by the Customer is excess only and not contributing with insurance
provided under ImageTrend's policy.
(B) Automobile Liability.Automobile liability insurance with limits of not less than One Million
Dollars($1,000,000)per occurrence for bodily injury and for property damages. Coverage must
include any auto used in connection with this Agreement.
(C) Workers Compensation.Workers compensation insurance as required by the laws of the State
of California with statutory limits.
(D)Employer's Liability.Employer's liability insurance with limits of not less than One Million
Dollars($1,000,000)per occurrence for bodily injury and for disease.
(E) Technology Professional Liability(Errors and Omissions). Technology professional liability
(errors and omissions)insurance with limits of not less than Two Million Dollars($2,000,000)
per claim and in the aggregate. Coverage must encompass all of ImageTrend's obligations under
this Agreement,including but not limited to claims involving Cyber Risks.
(F) Cyber Liability.Cyber liability insurance with limits of not less than Two Million Dollars
($2,000,000)per claim. Coverage must include claims involving Cyber Risks. The cyber liability
policy must be endorsed to cover the full replacement value of damage to, alteration of,loss of,or
destruction of intangible property(including but not limited to information or data)that is in the
care, custody,or control of ImageTrend.
Definition of Cyber Risks."Cyber Risks"include but are not limited to(i) Security Breach,
which may include Disclosure of Personal Information to an Unauthorized Third Party; (ii)data
breach; (iii)breach of any of ImageTrend's obligations under this Agreement; (iv) system failure;
(v) data recovery; (vi)failure to timely disclose data breach or Security Breach; (vii)failure to
comply with privacy policy; (viii)payment card liabilities and costs; (ix)infringement of
intellectual property,including but not limited to infringement of copyright,trademark, and trade
dress; (x)invasion of privacy,including release of private information; (xi)information theft;
(xii)damage to or destruction or alteration of electronic information; (xiii) cyber extortion; (xiv)
extortion related to ImageTrend's obligations under this Agreement regarding electronic
information,including Personal Information; (xv) fraudulent instruction; (xvi)funds transfer
fraud; (xvii)telephone fraud; (xviii)network security; (xix)data breach response costs,including
B-1
Business Private
Exhibit B
Security Breach response costs; (xx)regulatory fines and penalties related to ImageTrend's
obligations under this Agreement regarding electronic information,including Personal
Information; and(xxi)credit monitoring expenses.
If ImageTrend is a governmental entity,it may satisfy the policy requirements above through a program
of self-insurance, including an insurance pooling arrangement or joint exercise of powers agreement.
2. Additional Requirements
(A)Verification of Coverage.Within 30 days after hnageTrend signs this Agreement, and at any
time during the term of this Agreement as requested by the Customer's Risk Manager or the
Customer Administrative Office,ImageTrend shall deliver,or cause its broker or producer to
deliver,to the County of Fresno,Department of Public Health,P.O. Box 11867,Fresno, CA
93775,Attention: Contracts Section—6th Floor,or email, DPHContracts@fresnocountyca.gov,
certificates of insurance and endorsements for all of the coverages required under this Agreement.
(i) Each insurance certificate must state that: (1)the insurance coverage has been obtained
and is in full force; (2)the Customer, its officers, agents, employees, and volunteers are
not responsible for any premiums on the policy; and(3)ImageTrend has waived its right
to recover from the Customer,its officers, agents, employees,and volunteers any
amounts paid under any insurance policy required by this Agreement and that waiver
does not invalidate the insurance policy.
(ii) The commercial general liability insurance certificate must also state,and include an
endorsement,that the Customer of Fresno,its officers,agents, employees, and volunteers,
individually and collectively, are additional insureds insofar as the operations under this
Agreement are concerned.The commercial general liability insurance certificate must
also state that the coverage shall apply as primary insurance and any other insurance,or
self-insurance,maintained by the Customer shall be excess only and not contributing
with insurance provided under ImageTrend's policy.
(iii) The automobile liability insurance certificate must state that the policy covers any auto
used in connection with this Agreement.
(iv) The technology professional liability insurance certificate must also state that coverage
encompasses all of ImageTrend's obligations under this Agreement,including but not
limited to claims involving Cyber Risks,as that term is defined in this Agreement.
(v) The cyber liability insurance certificate must also state that it is endorsed, and include an
endorsement,to cover the full replacement value of damage to,alteration of,loss of, or
destruction of intangible property(including but not limited to information or data)that is
in the care,custody, or control of ImageTrend.
(B) Acceptability of Insurers.All insurance policies required under this Agreement must be issued
by admitted insurers licensed to do business in the State of California and possessing at all times
during the term of this Agreement an A.M. Best,Inc.rating of no less than A: VII.
(C) Notice of Cancellation or Change.For each insurance policy required under this Agreement,
ImageTrend shall provide to the Customer,or ensure that the policy requires the insurer to
provide to the Customer,written notice of any cancellation or change in the policy as required in
this paragraph.For cancellation of the policy for nonpayment of premium, ImageTrend shall, or
B-2
Business Private
Exhibit B
shall cause the insurer to,provide written notice to the Customer not less than 10 days in advance
of cancellation.For cancellation of the policy for any other reason, and for any other change to
the policy,ImageTrend shall, or shall cause the insurer to,provide written notice to the Customer
not less than 30 days in advance of cancellation or change. The Customer in its sole discretion
may determine that the failure of ImageTrend or its insurer to timely provide a written notice
required by this paragraph is a breach of this Agreement.
(D)Waiver of Subrogation.ImageTrend waives any right to recover from the Customer, its officers,
agents, employees, and volunteers any amounts paid under the policy of worker's compensation
insurance required by this Agreement. ImageTrend is solely responsible to obtain any policy
endorsement that may be necessary to accomplish that waiver,but ImageTrend's waiver of
subrogation under this paragraph is effective whether or not ImageTrend obtains such an
endorsement.
(E) Customer's Remedy for ImageTrend's Failure to Maintain.If ImageTrend fails to keep in
effect at all times any insurance coverage required under this Agreement,the Customer may,in
addition to any other remedies it may have, suspend or terminate this Agreement upon the
occurrence of that failure,or purchase such insurance coverage, and charge the cost of that
coverage to ImageTrend. The Customer may offset such charges against any amounts owed by
the Customer to ImageTrend under this Agreement.
(F) Subcontractors. ImageTrend shall require and verify that all Subcontractors used by
ImageTrend to provide services under this Agreement maintain insurance meeting all insurance
requirements provided in this Agreement. This paragraph does not authorize ImageTrend to
provide services under this Agreement using Subcontractors.
B-3
Business Private
ImageTrend 1305 Corporate Center Drive, Suite 500, Eagan, MN 55121
Phone: (952) 469-1589 Tall Free: (888) 469-7789
ORDER FORM
Prepared For: Bill To:
County of Fresno (CA)
County of Fresno (CA) 2281 Tulare Street Room 304, Fresno, California, United States, 93721
Salesperson Quote Number Order Form
Date
Mike Tamasi Q-11041v4 Aug 4, 2025
Senior Enterprise Account Executive
Contract Effective Date Subscription Term (Months)
Date of the last signature on this Order Form 60
One Time
Description Qty Fee Type Unit Price Total
License Management Setup 1 One Time $16,000.00 $16,000.00
Onsite Training 1 One Time $1,800.00 $1,800.00
Travel 1 One Time $1,750.00 $1,750.00
Webinar Training 2hr Session 1 One Time $450.00 $450.00
Payment Gateway Setup 1 One Time $0.00 0
Total Net Price $20,000.00
Recurring
Description Qty Fee Type Unit Price Total
License Management SaaS 1 Recurring $68,000.00 $68,000.00
Investigations 1 Recurring $0.00 0
Payment Gateway 1 Recurring $5,000.00 $5,000.00
Total Net Price $73,000.00
Total Year 1: $93,000.00
1/3
ImageTrend 1305 Corporate Center Drive. Suite 500, Eagan, MN 55121
Phone: (952) 469-1589 Toll Free: (888) 469-7789
Total Recurring: $73,000.00
Total One time: $20,000.00
Total Contract Value: $423,371.08
Year Over Year Pricing
YR 1 YR 2 YR 3 YR 4 YR 5
Description YR 1 Cost YR 2 Cost YR 3 Cost YR 4 Cost YR 5 Cost
Uplift Uplift Uplift Uplift Uplift
License $68,000.00 5% $71,400.00 5% $74,970.00 5% $78,718.50 5% $82,654.43 5%
Management
SaaS
Investigations 0 5% 0 5% 0 5% 0 5% 0 5%
Payment $5,000.00 5% $5,250.00 5% $5,512.50 5% $5,788.12 5% $6,077.53 5%
Gateway
Incident Volume
Category Incidents
License Management 280
This Order Form is subject to the terms of the Master Subscription Agreement located at
http://www.imagetrend.com/legal/msa unless there is a separate agreement between County of Fresno
(CA) and ImageTrend.
This proposal is valid for 90 days from the date listed above.
Additional Terms:
• One-Time Fees will be due upon contract signature.
• Recurring fees will be invoiced annually in advance, beginning on the Effective Date, unless
Customer provides notice of cancellation in accordance with the MSA, no less than sixty(60)
days prior to the end of a Subscription Term.
• Customer's subscription to a Service will automatically renew for a one-year Subscription
Term at the end of each prior Subscription Term.
• Payments are due 30 days after receipt of an invoice.
2/3
ImageTrend 1305 Corporate Center Drive, Suite 500, Eagan, MN 55121
Phone: (952) 469-1589 Toll Free: (888) 469-7789
• Recurring fees are subject to price increases each year following the first year of the
Subscription Term, and will not exceed 5%of the then-current price in any given year.
• Any terms not defined herein shall have the same meaning as defined in the Master
Subscription Agreement.
• The Subscription Term for any Services added by Customer after the beginning of the then-
current Subscription Term will be coterminous with the then-current Subscription Term for
existing Services.
BILLING CONTACT INFORMATION
Full Name: DPH Accounts Payable
Phone: (559) 600-3387
Email: DPHBOAP@fresnocountyca.gov
Address: PO Box 11867
Fresno,CA 937775-1867
ImageTrend County of Fresno(CA)
Name Jon Sachs Name Ernest Buddy Mendes
Title Chief Financial Officer Title Chairman of the Board of Supervisors
Signature 304 Signature G
Jon Sachs(Sep 4,202512:09:33 MDT)
Date 09/04/2025 Date q_ ,23 _a0-2S
ATTEST:
BERNICE E.SEIDEL
Clerk of the Board of Supervisors
County of Fresno,State of California
By_ Deputy
3/3
Agreement between the County of Fresno and ImageTrend
Name/No.: Master Subscription Agreement with ImageTrend, LLC for License
Management System
Fund/Subclass: 0001/10000
Organization #: 56201696
Account #: 7309