#24-004 NS-WV (Image Trend, LLC.) • COLLIER COUNTY NON-STANDARD AGREEMENT #24-004-NS-WV
FOR
"Electronic Patient Care Reporting Services"
BETWEEN
COLLIER COUNTY
AND
IMAGETREND, LLC
ATTACHED:
1. ImageTrend Master Software and Services Agreement (38 pages)
Department/Division
Emergency Medical Services
8075 Lely Cultural Parkway, Suite 267
Naples, Florida 34113
Division Point of Contact
Cherie DuBock, Accounting Supervisor
Phone: 239-252-3756
Cheri e.Dubock(r)colliercountyfl.gov
Noemi Garcia, EMS Division Chief
Phone: (239) 252-3763
Noemi.Garcia'i colliercountvf1.gov
•
Master Software and Services Agreement
CONTRACT NUMBER: 00007832.0
BETWEEN
Collier County EMS
8075 Lely Cultural Parkway
Naples, FL 34113
AND
I MAG ETREND`
ImageTrend, LLC
20855 Kensington Blvd.
Lakeville, Minnesota 55044
Phone:952-469-1589 I Toll Free: 1-888-469-7789 I Fax:952-985-5671 I www.imagetrend.com AO
IMAGETREND`
THIS AGREEMENT is made and entered into on the date last written below, by and between the
ImageTrend, LLC, a Minnesota corporation (hereinafter"ImageTrend" or"Contractor"), and Collier
County, FL c/o Emergency Medical Services, a political subdivision of the State of Florida (hereinafter
"Client" or"County"), together"the Parties."
RECITALS
WHEREAS, Client desires to have services performed by ImageTrend; and
WHEREAS, Client desires to purchase Commercial-Off-The-Shelf Software from ImageTrend;
and
WHEREAS, Client desires to purchase Custom Software Development from ImageTrend; and
WHEREAS,the parties agree that this Agreement supersedes any and all agreements entered
between the parties prior to the execution of this Agreement including Contract No.17-7141 and
any amendments thereto.All superseded agreements and amendments are terminated in their
entirety upon the Effective Date of this Agreement; 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" and "This Agreement" means this Master Software and Services Agreement, the Work
Orders issued hereunder, all Attachments and Exhibits attached hereto, or any Amendments 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§14(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, 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. The
definition of Confidential Information shall be further subject to the restraints imposed by Florida law.
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"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.
"Disclosing Party" means the party disclosing Confidential Information to the other party, see also
Receiving Party.
"Effective Date" means the date is December 9, 2023.
"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,
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lodging, and transportation), printing, delivery of materials, or any other cost reasonably incurred arising
out of this Agreement.All travel expenses are limited to the costs allowed under Florida Statutes,
§112.061.
"Master Services Agreement" means this document excluding Work Orders issued from this document.
"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,
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.
"Receiving Party" means the party receiving Confidential Information from the Disclosing Party.
"The Agreement" means collectively this Master Services Agreement, its Exhibits, all Work Orders issued
from this Master Services Agreement, and all Exhibits to Work Orders.
"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 actual 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. TERM OF AGREEMENT
The Term of this Agreement shall be 60 months from the Effective Date of this Agreement("Initial
Term").
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SECTION 3. 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.
FEE MODEL. The Work Order will contain fee and payment terms.The following fee models are
contemplated:
Model Name Definition
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 4. PERFORMANCE OF SERVICES
COMMENCEMENT. ImageTrend shall begin services described in the Work Order subsequent to the
mutual signed execution of 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 §6 "Licensing and Intellectual Property" 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 15
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
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of extensions, the Deliverable or service will be deemed accepted. After delivery of the fourth
revision of the service or Deliverable, the service or Deliverable shall be deemed accepted by
Client.
SECTION 5. 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 5, 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 5 or in any payment related term in any
work order("The PPA"),the term in the PPA will instead control.
FEES. Client shall owe to ImageTrend such fees as set forth in each mutually executed Work Order.
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. All travel expenses are subject to Florida Statutes, § 112.061.
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, payments are due upon receipt of a proper
invoice and in compliance with Chapter 218, Fla. Stats., otherwise known as the "Local Government
Prompt Payment Act."
REMEDIES FOR NON-PAYMENT. Should Client fail to pay per the terms of this Agreement and this
Section 5, ImageTrend may; 1) suspend services under all Work Orders until such payment is made in
full. Any late interest fees shall be pursuant to Section 218.74, Fla. Stat.
SALES TAX. Collier County, Florida as a political subdivision of the State of Florida, is exempt from the
payment of Florida sales tax to its vendors under Chapter 212, Florida Statutes, Certificate of Exemption
#85-8015966531C-1.
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
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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.Travel expenses shall be reimbursed as per Section 112.061, Fla. Stat. and
must be pre-approved in writing.
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
ImageTrend trainer travel trip prices once per year upon written notice to Client. Such ImageTrend
trainer trip 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 6. 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 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,
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,
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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 7. 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, subject to Florida law. 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 §7 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; or(iv) becomes
known publicly, without fault on the part of a Party, subsequent to the receipt of the information by
Party, or (v) is otherwise not confidential as provided by Florida law or subject to disclosure by a judicial
order.
SURVIVAL. This §7 shall survive the termination of this Agreement or of any license granted under this
Agreement.
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SECTION 8. 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 RESPECT TO 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 9. 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 10. DISPUTE RESOLUTION
DUTY TO NEGOTIATE IN GOOD FAITH PRIOR TO FORMAL DISPUTES. IF CLIENT IS A GOVERNMENTAL
ENTITY,THE FOLLOWING 2 PARAGRAPHS APPLY:
Prior to the initiation of any action or proceeding permitted by this Agreement to resolve disputes
between the parties, the parties shall make a good faith effort to resolve any such disputes by
negotiation. The negotiation shall be attended by representatives of Contractor with full decision-
making authority and by County's staff person who would make the presentation of any settlement
reached during negotiations to County for approval. Failing resolution, and prior to the commencement
of depositions in any litigation between the parties arising out of this Agreement,the parties shall
attempt to resolve the dispute through Mediation before an agreed-upon Circuit Court Mediator
certified by the State of Florida. The mediation shall be attended by representatives of Contractor with
full decision-making authority and by County's staff person who would make the presentation of any
settlement reached at mediation to County's board for approval. Should either party fail to submit to
mediation as required hereunder, the other party may obtain a court order requiring mediation under
section 44.102, Fla. Stat.
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,
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privileged and inadmissible for any purpose, including impeachment, in arbitration or other proceeding
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.
ARBITRATION. If Client is NOT a Governmental Entity the following paragraph applies:
Any dispute between ImageTrend and Client under this Agreement shall be resolved by arbitration by an
arbitrator selected under the rules of the American Arbitration Association in the State of the defending
party and the arbitration shall be conducted in that same location under the rules of said Association. If
an arbitrator cannot be agreed upon by the parties, ImageTrend and Client shall each choose an
arbitrator, and those two chosen arbitrators shall choose a third arbitrator, that third arbitrator shall
preside over any dispute. ImageTrend and Client shall each be entitled to present evidence and
argument to the arbitrator.The arbitrator shall have the right only to interpret and apply the provisions
of this Agreement and may not change any of its provisions. The arbitrator shall permit reasonable pre-
hearing discovery of facts,to the extent necessary to establish a claim or a defense to a claim, subject to
supervision by the arbitrator.The arbitrator shall endeavor to keep costs as low as possible while still
allowing for the just and fair disposition of the dispute.The determination of the arbitrator shall be
conclusive, final and binding upon the parties and judgment upon the same may be entered in any court
having jurisdiction thereof.The arbitrator shall give written notice to the parties stating his
determination, and shall furnish to each party a signed copy of such determination. ImageTrend and
Client shall equally share the cost of the arbitrator(s) fees.The arbitrator may award reasonable costs
and expenses, including reasonable attorney fees,to the prevailing party.
SECTION 11. NON-EXCLUSIVITY
This Agreement does not establish any exclusivity of service, contract, customer relationship, or
otherwise between the parties.
SECTION 12. 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.
SECTION 13. 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 14. 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
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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.
CLIENT INDEMNITY. IF CLIENT IS A GOVERNMENTAL ENTITY THE FOLLOWING PARAGRAPH DOES NOT
APPLY. Client shall defend and indemnify ImageTrend 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 Client. ImageTrend shall promptly
notify Client 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, Client shall have the right and option to
undertake and control such defense of such action with counsel of Client's choice with control to settle
any such Claim. Client shall have no obligation to defend or indemnify ImageTrend from Claims arising
out of Client's negligent or intentional wrongful acts or omissions. ImageTrend accordingly must provide
Client written notice no more than 60 days after ImageTrend has actual knowledge of a Claim else Client
shall have no obligation to indemnify Client.
SECTION 15. 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 16. GENERAL TERMS
a. INSURANCE REQUIREMENTS. ImageTrend will provide to Client a Certificate of Insurance upon
request with the insurance coverages and limits as follows:
I. Commercial General Liability: Coverage shall have minimum limits of$1,000,000
Per Occurrence, $2,000,000 for aggregate for Bodily Injury Liability and Property
Damage Liability.The General Aggregate Limit shall be endorsed to apply per
project. This shall include Premise and Operations; Independent Contractors;
Products and Completed Operations and Contractual Liability.
II. Workers' Compensation: Insurance covering all employees meeting Statutory Limits
in compliance with the applicable state and federal laws.
The coverage must include Employers' Liability with a minimum limit of$1,000,000
for each accident.
III. Cyber Liability: $1,000,000 Per Occurrence.
IV. Technology E&O: 1,000,000 Per Occurrence.
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The Certificate Holder shall be named as Collier County Board of County Commissioners, OR
Collier County Government, OR Collier County.The Certificates of Insurance must state the
Contract Number, or Project Number, or specific Project description, or must read: For any and
all work performed on behalf of Collier County.
On all certificates, the Certificate Holder must read: Collier County Board of County
Commissioners, 3295 Tamiami Trail East, Naples, Florida 34112.
Thirty (30) Days Cancellation Notice required.
b. ELECTRONIC SIGNATURES.The parties agree to conduct transactions primarily via electronic
means. Accordingly, each party accepts electronic signatures and Deliverables as equivalent to
physical versions of the same, but not exclusively.
c. 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.
d. 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.
Electronic counterparts are equally as valid as original counterparts.
e. 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§5 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.
f. 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.
g. NON ASSIGNABILITY.A party shall not assign this Agreement or its rights hereunder without the
prior written consent of the other party.
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h. JURISDICTION AND VENUE. The parties agree that the law governing this Agreement shall be
that of the State of Florida 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. Venue shall be in the state and
federal courts in and for Collier County, Florida.
i. 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.
j. 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.
k. 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.
I. 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 Contract, 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.
m. ATTORNEYS' FEES. In any action between the parties to enforce any of the terms of this
Agreement,the prevailing party shall be entitled to recover reasonable expenses, including
reasonable attorneys' fees.
n. 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
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ImageTrend agree that neither ImageTrend employees nor its agents will receive Client-
sponsored benefits from Client.
o. NO DISCRIMINATION.The Contractor agrees that there shall be no discrimination as to race,
sex, color, creed or national origin or any other class protected by federal or Federal law.
p. PUBLIC ENTITY CRIME: By its execution of this Agreement, the Contractor acknowledges to
comply with the terms of Section 287.133 of the Florida Statutes and inform the County of the
conviction of a public entity crime.
q. PROHIBITION OF GIFTS TO COUNTY EMPLOYEES. No organization or individual shall offer or
give, either directly or indirectly, any favor, gift, loan, fee, service or other item of value to any
County employee, as set forth in Chapter 112, Part III, Florida Statutes, Collier County Ethics
Ordinance No. 2004-05, as amended, and County Administrative Procedure 5311. Violation of
this provision may result in one or more of the following consequences: a. Prohibition by the
individual, firm, and/or any employee of the firm from contact with County staff for a specified
period of time; b. Prohibition by the individual and/or firm from doing business with the County
for a specified period of time, including but not limited to: submitting bids, RFP, and/or quotes;
and, c. immediate termination of any Agreement held by the individual and/or firm for cause.
r. COMPLIANCE WITH LAWS. By executing and entering into this Agreement, the Contractor is
formally acknowledging without exception or stipulation that it agrees to comply, at its own
expense, with all federal, state and local laws, codes, statutes, ordinances, rules, regulations
and requirements applicable to this Agreement, including but not limited to those dealing with
the Immigration Reform and Control Act of 1986 as located at 8 U.S.C. 1324, et seq. and
regulations relating thereto, as either may be amended, as well as the requirements set forth in
Florida Statutes, §448.095; taxation, workers' compensation, equal employment and safety
including, but not limited to, the Florida Public Records Law Chapter 119, including specifically
those contractual requirements at F.S. § 119.0701(2)(a)-(b) as stated as follows:
IT IS THE CONTRACTOR'S DUTY TO PROVIDE PUBLIC RECORDS RELATING TO THIS CONTRACT. IF
THE CONTRACTOR HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER 119, FLORIDA
STATUTES, IT SHOULD CONTACT THE CUSTODIAN OF PUBLIC RECORDS AT:
Communications, Government& Public Affairs Division
3299 Tamiami Trail East,Suite 102
Naples, FL 34112-5746
Telephone: (239)252-8999
Email: PublicRecordRequest@colliercountvfl.gov
The Contractor must specifically comply with the Florida Public Records Law to:
1. Keep and maintain public records required by the public agency to perform the service.
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2. Upon request from the public agency's custodian of public records, provide the public
agency with a copy of the requested records or allow the records to be inspected or
copied within a reasonable time at a cost that does not exceed the cost provided in this
chapter or as otherwise provided by law.
3. Ensure that public records that are exempt or confidential and exempt from public
records disclosure requirements are not disclosed except as authorized by law for the
duration of the contract term and following completion of the contract if the Contractor
does not transfer the records to the public agency.
4. Upon completion of the contract, transfer, at no cost, to the public agency all public
records in possession of the Contractor or keep and maintain public records required by
the public agency to perform the service. If the Contractor transfers all public records to
the public agency upon completion of the contract, the Contractor shall destroy any
duplicate public records that are exempt or confidential and exempt from public records
disclosure requirements. If the Contractor keeps and maintains public records upon
completion of the contract, the Contractor shall meet all applicable requirements for
retaining public records. All records stored electronically must be provided to the public
agency, upon request from the public agency's custodian of public records, in a format
that is compatible with the information technology systems of the public agency.
If Contractor observes that the Contract Documents are at variance therewith, it shall promptly
notify the County in writing. Failure by the Contractor to comply with the laws referenced
herein shall constitute a breach of this Agreement and the County shall have the discretion to
unilaterally terminate this Agreement immediately.
s. 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:
Collier County EMS
Attn:Tabatha Butcher
Phone: (239) 252-3763
8075 Lely Cultural Parkway, Suite 267
Naples,FL 34113
If to ImageTrend:
ImageTrend, LLC
Attn: Legal Department
Email: Contracts@imagetrend.com
20855 Kensington Boulevard
Lakeville, MN 55044
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IN WITNESS WHEREOF,the Parties have executed this Agreement on the date and year first written
above by an authorized person or agent.
ATTEST:
Crystal K. Kinzel, Clerk of the Circuit BOARD OF COUNTY COMMISSIONERS
Court and C.-e . ;. It. COLLIER COUNTY, FLORIDA
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SOFTWARE LICENSING TERMS ATTACHMENT
To the degree any Work Order involves licensing ImageTrend Software, the following terms shall apply:
"ImageTrend Elite Data Marts" means the relational database(s)that contain an enhanced and
simplified reporting-ready format of the transactional data collected within ImageTrend Elite. The Elite
Data Marts are available for use with the ImageTrend Elite Reporting Tools.
"ImageTrend Elite Reporting Tools" means the Transactional Report Writer,Visual Informatics,
Analytical Chart Reporting Tool and Analytical Tabular Reporting Tool in the Software that are based on
a set of Elite Data Marts.
"Incident(s)" means an instance where the Client sends a vehicle or emergency responder to a situation
requiring emergency response, as measured by the number of incident reports within ImageTrend
Software systems.
"Licensed Information" means other Deliverables provided to Client by ImageTrend relating to the
operation or design of the Software, or other Deliverables provided to Client by ImageTrend which are
common to ImageTrend (e.g. such Deliverables are not unique to Client).A copy of the software
specification Licensed Information is available within the Software labeled as "ImageTrend University."
"The Software" means the sum of all software licenses granted by this Agreement or Work Order hereto
as provided in Section 1 below.
SECTION 1. GRANT OF LICENSE TO SOFTWARE.
Each Work Order for the sale of Software Licenses shall outline which of the below licenses are being
granted by the Work Order.The license selection will be evidenced by the title of each SKU in the Work
Order, e.g. "Elite EMS SaaS" shall be licensed under the Software as a Service License below. If the
license is not apparent by the name of the SKU, then the license shall default to Software as a Service.
ImageTrend may discontinue or replace a license in this table by providing Client reasonable written
notice of the change. Replacing this table shall not have the effect of revoking previously agreed
licenses, rather, ImageTrend's right to replace this table shall apply to only future Work Orders.
Name of License Terms of License
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
13 November 2023 www.imagetrend.com Page 1 18 of 38
IMAGETRENU
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.
Client Hosted ImageTrend will grant Client a non-exclusive, non-transferable, perpetual use
License license without rights of resale or sublicensing,to the ImageTrend Software
("On Premise product(s) listed in the Work Order. Client shall have access to the Software,
License") which will be installed on servers at the Client hosting facility and subject to the
attached Service Level Agreement. All copies of the Software and/or Licensed
Information in any form provided by ImageTrend to Client hereunder are the
sole property of ImageTrend and/or its suppliers, and that Client shall not have
any right, title, or interest to any such Software and/or Licensed Information or
copies thereof except as provided in this Agreement.
Initial set up will require direct access to Client servers by ImageTrend personnel.
However, after the installation is complete, management of non- ImageTrend
software, operating systems, ancillary systems and the responsibility for keeping
non- ImageTrend software updated will be the sole responsibility of Client.
ImageTrend disclaims any and all liability arising out of out-of-date or otherwise
insufficiently maintained non- ImageTrend software or hosting environment.
ImageTrend has no duty to maintain the Client's hosted environment's
cybersecurity. Client agrees to ensure that ImageTrend will have sufficient server
access to fulfill ImageTrend's duties hereunder. Maintenance of Client Hardware,
physical environment, storage, processing, patching, operating system
maintenance, network device maintenance, Client 3rd party licenses (as outlined
below), or any other task which is required to maintain the Client application
hosting environment and is not directly arising out of a requirement of or defect
to the ImageTrend application(s) are the sole responsibility of Client. It will not
be ImageTrend's responsibility to maintain or resolve problems with Client's
hosted environment. ImageTrend's sole responsibility shall be to provide
application support for ImageTrend developed applications. Tasks which are
ultimately discovered to be maintenance of the Client Hosting environment may
be charged to Client at ImageTrend's out-of-scope rate.
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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. IMAGETREND ELITE DATA MARTS NON-EXCLUSIVE USE LICENSE.
In accordance with the terms and conditions hereof, ImageTrend hereby grants the use of the
ImageTrend Elite Data Marts only via ImageTrend Elite Reporting Tools, unless an "Elite Data Mart
License" is included and detailed in a Work Order. Absent that license, this Agreement does not give the
Customer the rights to access and query the ImageTrend Elite Data Marts directly using SQL query tools,
reporting tools, ETL tools, or any other tools or mechanisms. Direct access to ImageTrend Elite Data
Marts is only available via the aforementioned separately-priced product and service offering from
ImageTrend.
SECTION 4. INSTALLATION, INTRODUCTORY TRAINING AND DEBUGGING.
IMPLEMENTATION. ImageTrend shall provide Client with start-up services such as the installation and
introductory training relating to the Software, and, if necessary, initial debugging services known as
"Implementation". During Implementation, Client must make available sufficient time and resources as
is necessary to accomplish the milestones and tasks per the party's project plans (as applicable),
typically between 4 and 15 hours a week. Depending on Client's objectives, Client may need to allocate
more time or resources to achieve Client's desired timelines.
TRAIN THE TRAINER. ImageTrend may provide "Train-the-trainer" training for administrators as detailed
in each Work Order. Additionally, online training videos and user guides in electronic format will be
made available via ImageTrend University.
INSTRUCTIONS. ImageTrend will provide installation instructions and assistance for installation of the
Software on the Servers appropriate to the License selection in the Work Order per the table above at
(e.g. Client Hosted on premise license) as detailed in Service Level Attachment, below.
SOFTWARE SUPPORT. ImageTrend shall provide Software Support as detailed in the Service Level
Attachment, below.
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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 5. SOFTWARE WARRANTIES.
PERFORMANCE WARRANTY. ImageTrend warrants that the Software will conform to the specifications
as set forth in the Licensed Information. However, this warranty shall be revoked in the event that any
person other than ImageTrend and its agents make any unauthorized modification or change to the
Software in any manner outside of the configuration available within the Software's built-in
functionality.This warranty does not apply to data extracted from the system.
OWNERSHIP WARRANTY. ImageTrend represents that it is the owner of the entire right, title, and
interests in and to the Software, and that it has the sole right to grant licenses thereunder, and that it
has not knowingly granted licenses thereunder to any other entity that would restrict rights granted
hereunder to Client.
LIMITATIONS ON WARRANTY. All of ImageTrend's obligations under this Section shall be contingent on
Client's use of the Software in accordance with this Agreement and in accordance with ImageTrend's
instructions as provided by ImageTrend in the Licensed Information, and as such instructions may be
amended, supplemented, or modified by ImageTrend from time to time. ImageTrend shall have no
warranty obligations with respect to usage which does not conform with ImageTrend's instructions as
provided by ImageTrend in the Licensed Information. ImageTrend shall have no warranty obligations
with respect to any failures of the Software which are the result of accident, abuse, misapplication,
extreme power surge or extreme electromagnetic field of a Client device. In addition to any other
limitation on warranty or liability; Client's sole remedy for breach of warranty related to or arising out of
the Software, or a defect with the Software, shall be at Client's option 1) repair of the Software or
defect, 2) termination of this Agreement for convenience as outlined elsewhere in this Agreement.
THE EXPRESS WARRANTIES PROVIDED HEREIN ARE THE ONLY WARRANTIES MADE BY ImageTrend WITH
RESPECT TO THE SOFTWARE AND SUPERSEDE ALL OTHER EXPRESS OR IMPLIED WARRANTIES,
INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY AND WARRANTIES FOR
ANY SPECIAL PURPOSE.
SECTION 6. MAINTENANCE.
ImageTrend shall provide scheduled updates and new releases for the Software, as well as defect
correction as needed per the Service Level Agreement, attached for so long as Client has contracted for
support (as indicated by a recurring fee containing the product name and word `Support'). Specific out-
of-scope system enhancement requests are excluded from support. Should Client desire specific source-
code level modifications to the system, Client may submit a request to ImageTrend's UserVoice page at
https://ImageTrend.uservoice.com/.
SECTION 7. RETURN OF DATA.
Upon termination of this Agreement for any reason, Client may request ImageTrend provide to Client a
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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 8. IMAGETREND ELITE AUTHORIZED USERS AND SCOPE OF USAGE
This Grant of License is strictly conditioned on the Software being used by only Authorized Users.
ImageTrend may audit Client's Software, users, and usage to ensure compliance with the scope of usage
detailed by this Agreement, in ImageTrend's discretion. Non-compliance with the scope of usage shall
be considered a material breach.
If this Agreement is for the licensing of ImageTrend Elite EMS, the following scope of usage and
Authorized User definitions apply.
Organization Type Organization Definition Authorized User Definition
Private Agency Client responds to emergency All employees&contractors of Client
medical incidents for-profit or who respond to emergency medical
not-for-profit and the Client is incidents in the regular scope of their
not a Governmental Entity. employment
Public Agency, County, Client responds to emergency All employees & contractors of Client
Region, or City for its medical incidents and transports who respond to emergency medical
own employed EMS patients therefrom and is a incidents in the regular scope of their
workers ("Public Governmental Entity employment
Agency")
Hospital or Health Client is a 1) hospital, 2) health All employees&contractors of Client
Network network, 3) or other medical who respond to emergency medical
institution that provides care incidents in their regular scope of
which does not involve employment at or from the named
responding to emergency Hospital brick-and-mortar locations. If
medical incidents and the specific brick-and-mortar
transporting patients therefrom location(s) is not named in a Work
as a primary service of the Order, then it shall be interpreted as
organization; and Client is the brick-and-mortar location from
recognized and licensed as such which the Client primary contact,
by the Client's governing State Noemi Garcia or their successor,
conducts their job duties most
frequently.
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State, County, Region, Client is a Governmental Entity Licensed individuals within Client's
City for its constituents with authority or an official legal or governing jurisdiction and
mandate to improve, facilitate, geographic boundary,who to respond
organize, surveil, investigate, to emergency medical incidents in the
report, collect reports of, or regular scope of their employment,
otherwise govern public health and not individuals whose primary job
matters; or another entity acting duty involves law enforcement.
under a grant or contract of and
for equivalent authority
Group Purchase (Multi- Client(s) are a plurality of Private All employees & contractors of each
Agency) Agencies and/or Public Agencies named organization, who respond to
emergency medical incidents
Financing Party(e.g. Client is an entity which does not All employees& contractors of third
billing company) on respond to emergency medical party beneficiary Public or Private
behalf of incidents or provide for the care Agency, who respond to emergency
Agency/City/County or transportation of patients; medical incidents in the regular scope
third party beneficiary rather Client is an entity who of their employment.
procures or pays for a third party
beneficiary who is a Private or
Public Agency.
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PRICE SHEET AND WORK ORDER ATTACHMENT
The prices below are based on the following SaaS transaction volumes, as provided by Client:
15,276 Incidents annually
Previously Contracted Recurring Fees
Description Description Unit Price Qty Extended Service Date
Amount
Elite Rescue Hosting Annual Fee $15,997.98 1 $15,997.98 10/1/2023
9/30/2024
Elite Rescue CAD Annual Fee $4,057.46 1 $4,057.46 10/1/2023—
Integration 9/30/2024
Elite Rescue Data Mart Annual Fee $5,796.38 1 $5,796.38 10/1/2023—
Support 9/30/2024
FirstWatch Distribution Annual Fee— $1,406.88 NA $1,406.88 6/23/2024—
Prorated 9/30/2024
Vault Records with Annual Fee— $728.48 NA $728.48 5/6/2024-
Attachments Prorated 9/30/2024
Newly Contracted Recurring Fees
Description SKU Unit Price Qty Extended
Amount
Open Platform Healthcare ELT.002.008.008 $12,045.00 1 $12,045.00
Connection
Total Recurring Fees: $12,045.00
TOTAL YEAR 1:$12,045.00
Send Invoices To:
Collier County Board of Commissioners
ATTN: Accounts Payable
3299 Tamiami Trl E Ste 700
Naples, FL 34112-5749
bccapclerk@collierclerk.com
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Payment Terms:
• "Newly Contracted Recurring Fees" are annual fees which recur each year.They are due on the
anniversary of the fee. Newly Contracted Recurring Fees will be prorated at$1,003.75 per
month from contract signature through September 31, 2024. Commencing October 1, 2024, the
Newly Contracted Recurring Fees of$12,045.00 will be due annually.
• All Recurring Fees are annual fees which recur each year beginning October 1st.
• All Recurring Fees will escalate in price annually by 5% beginning 10/1/2024 and each year
thereafter.
• TIME AND MATERIALS RATE. Unless otherwise specified in a Work Order, ImageTrend's Time
and Materials rate is$225.00 per hour.
• 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.
• Any late interest fees charged by Image Trend shall be pursuant to Section 218.74, Fla. Stats. .
• 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.
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IMAGETREND
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:
Severity Level Example Acknowledgement of Error Notice Response
Goal
High/Site Down -Complete shutdown or partial shutdown Within one(1)hour of initial notification Six(6)hours
of one or more Software functions during business hours or via
support.imagetrend.com
-Access to one or more Software functions
not available
-Major subset of Software application
impacted that is necessary for usage of the
software
Medium -Minor subsystem failure Within four(4)hours of initial notification 24 Business
hours
-Data entry or access impaired on a limited
basis.
Low -User error(i.e.training)or forgotten Same day or next business day of initial As
passwords notification appropriate
depending
-Issue can or must be delegated to local on nature of
Client contact as a first level of response for issue and
resolution
party
responsible
for
resolution
2. Data Ownership
All customer data collected and maintained by ImageTrend shall at all times remain the property
of the customer.
3. Data Protection
ImageTrend takes data privacy and cybersecurity very seriously. ImageTrend utilizes compliant
and industry recognized best practices to ensure data security, and does not use or make
available any personally identifiable information to third parties without customer consent or as
required by law. ImageTrend acknowledges that its handling of information on behalf of customers
may be subject to federal, state or local laws, rules, regulation and restrictions regarding the
privacy of consumer information. ImageTrend agrees to comply with all of such laws, rules,
regulations and restrictions at its sole cost and expense.
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4. Suspension of Service
ImageTrend reserves the right to suspend and limit network resources to customers failing to pay
the monthly fee in advance at its own discretion. In the event of service suspension, full service
delivery will be restored within 48 hours from the date and time that payment is received.
5. Availability
ImageTrend is fully committed to providing quality service to all customers. To support this
commitment, ImageTrend offers the following commitments related to application server
Availability:
Availability Objective: ImageTrend will provide 99.5% Availability (as defined below) for the
ImageTrend network services within ImageTrend's Immediate Control. For purposes, hereof,
"Availability" or "Available" means the ImageTrend Services are available for access and use
through the Internet.
"Immediate Control" includes ImageTrend's network services within the ImageTrend data center
which extends to, includes and terminates at the Internet Service Provider ("ISP") circuit
termination point on the router in ImageTrend's data center (i.e., public Internet connectivity).
Specifically excluded from the definition of"Immediate Control" are the following:
a. Equipment, data, materials, software, hardware, services and/or facilities provided by or on
behalf of Client or a third-party entity(or any of their vendors or service providers) and Client's
or a third party entity's network services or end-user hardware.
b. Acts or omissions of Client, their employees, contractors, agents or representatives, third
party vendors or service providers or anyone gaining access to the ImageTrend Services at
the request of Client.
c. Issues arising from bugs, defects, or other problems in the software, firmware, or hardware
of third parties.
d. Delays or failures due to circumstances beyond ImageTrend's reasonable control that could
not be avoided by its exercise of due care.
e. Any outage, network unavailability or downtime outside the ImageTrend data center.
Availability Calculation: Availability is based on a monthly calculation. The calculation will be
as follows: ((a — b) / a) x 100, where "a" is the total number of hours in a given calendar month,
excluding Scheduled Maintenance (as defined below), and "b" is the total number of hours that
service is not Available in a given month.
Offline Capability: The Software may have offline capability which provides redundancy when
network or server back-end capability is not available. Periods of time when the Software's
primary functions continue to function offline shall be excluded from the unavailability calculation
"b" above.
Scheduled Maintenance: ImageTrend conducts scheduled maintenance, as necessary, every
last Wednesday of the month. ImageTrend will perform scheduled maintenance within that
maintenance window between the hours of 9:00 p.m. CST to 11:00 p.m. CST. ImageTrend may
change the regularly scheduled maintenance window from time to time at ImageTrend's discretion
upon reasonable notice to Client.
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Service Disruption: Upon customer's written notice to ImageTrend, if Availability for the month
is below the guaranteed level, ImageTrend will issue a credit to customer in accordance with the
schedule below:
Availability: 99.0% - 99.5% = 5% of monthly hosting fee credited
95.0% - 98.99% = 10% of monthly hosting fee credited
90.0% - 94.99% = 15% of monthly hosting fee credited
89.99% or below = 2.5% for every 1% of lost Availability (in no event exceeding
50% of monthly hosting fees)
ImageTrend maintains precise and objective Availability metrics, which shall be determinative
when calculating any customer requested credit. ImageTrend maintained Availability metrics shall
only be requested in good faith to address material customer concerns. To receive a credit,
customers must specifically request it during the month following the month for which the credit
is requested. Credits shall not be issued if a customer account is past due, suspended or pending
suspension.
6. General
ImageTrend reserves the right to change or modify this SLA and the related services being
provided to benefit its customers, including changes to hosting environments and infrastructure,
provided that any such improvements shall adhere to the regulatory guidelines and best practices
referenced herein.
• 13 November 2023 www.imagetrend.com Page 1 28 of 38 A
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BUSINESS ASSOCIATE AGREEMENT ATTACHMENT
This Business Associate Agreement ("Agreement") is entered into between COLLIER COUNTY
("Covered Entity") and Imagetrend, LLC, whose address is: 20855 Kensington Blvd, Lakeville, MN 55044,
("Business Associate"), effective as of this 9th day of December, 2023 (the "Effective Date").
WHEREAS, Covered Entity and Business Associate have entered into, or plan to enter into, an
arrangement pursuant to which Business Associate may provide services for Covered Entity that require
Business Associate to access, create and use Protected Health Information ("PHI") that is confidential
under state and/or federal law; and
WHEREAS, Covered Entity and Business Associate intend to protect the privacy and provide for
the security of PHI disclosed by Covered Entity to Business Associate, or collected or created by Business
Associate, in compliance with the Health Insurance Portability and Accountability Act of 1996, Public Law
104-191 ("HIPAA"), and the regulations promulgated there under, including, without limitation, the
regulations codified at 45 CFR Parts 160 and 164 ("HIPAA Regulations"); the Health Information
Technology for Economic and Clinical Health Act, as incorporated in the American Recovery and
Reinvestment Act of 2009, and its implementing regulations and guidance issued by the Secretary of the
Department of Health and Human Services (the "Secretary") (the "HITECH Act"); and other applicable
state and federal laws, all as amended from time to time, including as amended by the Final Rule issued
by the Secretary on January 17, 2013 titled "Modifications to the HIPAA Privacy, Security, Enforcement,
and Breach Notification Rules under the Health Information Technology for Economic and Clinical Health
Act and the Genetic Information Nondiscrimination Act; Other Modifications to the HIPAA Rules"; and
WHEREAS, the HIPAA Regulations require Covered Entity to enter into an agreement with
Business Associate meeting certain requirements with respect to the Use and Disclosure of PHI,which are
met by this Agreement.
NOW, THEREFORE, in consideration of the mutual promises contained herein and the exchange
of information pursuant to this Agreement, the parties agree as follows:
1. Definitions.
Capitalized terms used herein without definition shall have the meanings ascribed to them
in the HIPAA Regulations or the HITECH Act, as applicable unless otherwise defined herein.
2. Obligations and Activities of Business Associate.
a. Permitted Uses and Disclosures. Business Associate shall only Use or Disclose PHI
for the purposes of(i) performing Business Associate's obligations under Contact#"00007832.0","Master
Software and Services Agreement" as permitted by this Agreement; or (ii) as permitted or Required By
Law;or(iii)as otherwise permitted by this Agreement. Business Associate shall not Use or further Disclose
PHI other than as permitted or required by this Agreement or as Required By Law.
Further, Business Associate shall not Use or Disclose PHI in any manner that would constitute a violation
of the HIPAA Regulations or the HITECH Act if so used by Covered Entity, except that Business Associate
may Use PHI (i)for the proper management and administration of Business Associate; and (ii)to carry out
the legal responsibilities of Business Associate. Business Associate may Disclose PHI for the proper
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management and administration of Business Associate, to carry out its legal responsibilities or for
payment purposes as specified in 45 CFR § 164.506(c)(1) and (3), including but not limited to Disclosure
to a business associate on behalf of a covered entity or health care provider for payment purposes of such
covered entity or health care provider, with the expectation that such parties will provide reciprocal
assistance to Covered Entity, provided that with respect to any such Disclosure either: (i)the Disclosure is
Required By Law; or (ii) for permitted Disclosures when Required By Law, Business Associate shall obtain
a written agreement from the person to whom the PHI is to be Disclosed that such person will hold the
PHI in confidence and will not use and further disclose such PHI except as Required By Law and for the
purpose(s) for which it was Disclosed by Business Associate to such person, and that such person will
notify Business Associate of any instances of which it is aware in which the confidentiality of the PHI has
been breached.
b. Appropriate Safeguards. Business Associate shall implement administrative,
physical and technical safeguards that (i) reasonably and appropriately protect the confidentiality,
integrity and availability of electronic PHI that it creates, receives, maintains or transmits on behalf of
Covered Entity; and (ii) prevent the Use or Disclosure of PHI other than as contemplated by the Master
Software and Services Agreement and this Agreement.
c. Compliance with Security Provisions. Business Associate shall: (i) implement and
maintain administrative safeguards as required by 45 CFR § 164.308, physical safeguards as required by
45 CFR§ 164.3 10 and technical safeguards as required by 45 CFR§ 164.3 12; (ii)implement and document
reasonable and appropriate policies and procedures as required by 45 CFR § 164.3 16; and (iii) be in
compliance with all requirements of the HITECH Act related to security and applicable as if Business
Associate were a "covered entity," as such term is defined in HIPAA.
d. Compliance with Privacy Provisions. Business Associate shall only Use and Disclose
PHI in compliance with each applicable requirement of 45 CFR § 164.504(e). Business Associate shall
comply with all requirements of the HITECH Act related to privacy and applicable as if Business Associate
were a "covered entity," as such term is defined in HIPAA.To the extent Business Associate is to carry out
one or more of Covered Entity's obligation(s) under Subpart E of 45 CFR Part 164, Business Associate shall
comply with the requirements of Subpart E that apply to Covered Entity in the performance of such
obligation(s).
e. Duty to Mitigate. Business Associate agrees to mitigate, to the extent practicable
and mandated by law, any harmful effect that is known to Business Associate of a Use or Disclosure of PHI
by Business Associate in violation of the requirements of this Agreement.
f. Encryption.To facilitate Business Associate's compliance with this Agreement and
to assure adequate data security, Covered Entity agrees that all PHI provided or transmitted to Business
Associate pursuant to the Master Software and Services Agreement shall he provided or transmitted in a
manner which renders such PHI unusable, unreadable or indecipherable to unauthorized persons,
through the use of a technology or methodology specified by the Secretary in the guidance issued under
section 13402(h)(2) of the HITECH Act. Covered Entity acknowledges that failure to do so could contribute
to or permit a Breach requiring patient notification under the HITECH Act and further agrees that Business
Associate shall have no liability for any Breach caused by such failure.
3. Reporting.
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a. Security Incidents and/or Unauthorized Use or Disclosure. Business Associate shall
report to Covered Entity a successful Security Incident or any Use and/or Disclosure of PHI other than as
provided for by this Agreement or permitted by applicable law within a reasonable time of becoming
aware of such Security Incident and/or unauthorized Use or Disclosure (but not later than five (5) days
thereafter), in accordance with the notice provisions set forth herein. Business Associate shall take (i)
prompt action to cure any such deficiencies as reasonably requested by Covered Entity,and (ii)any action
pertaining to such Security Incident and/or unauthorized Use or Disclosure required by applicable federal
and state laws and regulations. If such successful Security Incident or unauthorized Use or Disclosure
results in a Breach as defined in the HITECH Act, then Covered Entity shall comply with the requirements
of Section 3.b below.
b. Breach of Unsecured PHI. The provisions of this Section 3.b are effective with respect
to the Discovery of a Breach of Unsecured PHI occurring on or after September 23, 2009. With respect to
any unauthorized acquisition, access, Use or Disclosure of Covered Entity's PHI by Business Associate, its
agents or subcontractors, Business Associate shall (i) investigate such unauthorized acquisition, access,
Use or Disclosure; (ii) determine whether such unauthorized acquisition, access, Use or Disclosure
constitutes a reportable Breach under the HITECH Act; and (iii) document and retain its findings under
clauses (i) and (ii). If Business Associate Discovers that a reportable Breach has occurred, Business
Associate shall notify Covered Entity of such reportable Breach in writing within five (5) days of the date
Business Associate Discovers such Breach. Business Associate shall be deemed to have discovered a
Breach as of the first day that the Breach is either known to Business Associate or any of its employees,
officers or agents,other than the person who committed the Breach,or by exercising reasonable diligence
should have been known to Business Associate or any of its employees, officers or agents, other than the
person who committed the Breach. To the extent the information is available to Business Associate,
Business Associate's written notice shall include the information required by 45 CFR§ 164.410(c). Business
Associate shall promptly supplement the written report with additional information regarding the Breach
as it obtains such information. Business Associate shall cooperate with Covered Entity in meeting Covered
Entity's obligations under the HITECH Act with respect to such Breach.
4. Business Associate's Agents. To the extent that Business Associate uses one or more
subcontractors or agents to provide services under Master Software and Services Agreement, and such
subcontractors or agents receive or have access to PHI, Business Associate shall sign an agreement with
such subcontractors or agents containing substantially the same provisions as this Agreement.
5. Rights of Individuals.
a. Access to PHI. Within ten (10) days of receipt of a request by Covered Entity,
Business Associate shall make PHI maintained in a Designated Record Set available to Covered Entity or,
as directed by Covered Entity, to an Individual to enable Covered Entity to fulfill its obligations under 45
CFR § 164.524. Subject to Section 5.b below, (i) in the event that any Individual requests access to PHI
directly from Business Associate in connection with a routine billing inquiry, Business Associate shall
directly respond to such request in compliance with 45 CFR § 164.524; and (ii) in the event such request
appears to be for a purpose other than a routine billing inquiry, Business Associate shall forward a copy
of such request to Covered Entity and shall fully cooperate with Covered Entity in responding to such
request. In either case, a denial of access to requested PHI shall not be made without the prior written
consent of Covered Entity.
b. Access to Electronic Health Records. If Business Associate is deemed to use or
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maintain an Electronic Health Record on behalf of Covered Entity with respect to PHI, then,to the extent
an Individual has the right to request a copy of the PHI maintained in such Electronic Health Record
pursuant to 45 CFR § 164.524 and makes such a request to Business Associate, Business Associate shall
provide such individual with a copy of the information contained in such Electronic Health Record in an
electronic format and, if the Individual so chooses, transmit such copy directly to an entity or person
designated by the Individual. Business Associate may charge a fee to the individual for providing a copy of
such information, but such fee may not exceed Business Associate's labor costs in responding to the
request for the copy. The provisions of 45 CFR § 164.524, including the exceptions to the requirement to
provide a copy of PHI, shall otherwise apply and Business Associate shall comply therewith as if Business
Associate were the "covered entity," as such term is defined in HIPAA. At Covered Entity's request,
Business Associate shall provide Covered Entity with a copy of an Individual's PHI maintained in an
Electronic Health Record in an electronic format and in a time and manner designated by Covered Entity
in order for Covered Entity to comply with 45 CFR § 164.524, as amended by the HITECH Act.
c. Amendment of PHI. Business Associate agrees to make any amendment(s)to PHI
in a Designated Record Set that Covered Entity directs or agrees to pursuant to 45 CFR § 164.526 at the
request of Covered Entity or an Individual, and in the time and manner designated by Covered Entity.
d. Accounting Rights. This Section 5.d is subject to Section 5.e below. 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, incorporating exceptions to such accounting designated under such regulation. Such
accounting is limited to disclosures that were made in the six (6) years prior to the request and shall not
include any disclosures that were made prior to the compliance date of the HIPAA Regulations. Business
Associate shall provide such information as is necessary to provide an accounting within ten (10) days of
Covered Entity's request. Such accounting must he provided without cost to the Individual or to Covered
Entity if it is the first accounting requested by an Individual within any six (6) month period; however, a
reasonable, cost-based fee may be charged for subsequent accountings during that period if Business
Associate informs Covered Entity and Covered Entity informs the Individual in advance of the fee, the
Individual is afforded an opportunity to withdraw or modify the request and charging such fee is not
otherwise contrary to law. Such accounting obligations shall survive termination of this Agreement and
shall continue as long as Business Associate maintains PHI.
e. Accounting of Disclosures of Electronic Health Records. The provisions of this
Section 5.e shall be effective on the date specified in the HITECH Act. If Business Associate is deemed to
use or maintain an Electronic Health Record on behalf of Covered Entity, then, in addition to complying
with the requirements set forth in Section 5.d above, Business Associate shall maintain an accounting of
any Disclosures made through such Electronic Health Record for Treatment, Payment and Health Care
Operations, as applicable. Such accounting shall comply with the requirements of the HITECH Act. Upon
request by Covered Entity, Business Associate shall provide such accounting to Covered Entity in the time
and manner specified by Covered Entity and in compliance with the HITECH Act.Alternatively, if Covered
Entity responds to an Individual's request for an accounting of Disclosures made through an Electronic
Health Record by providing the requesting Individual with a list of all business associates acting on behalf
of Covered Entity, then Business Associate shall provide such accounting directly to the requesting
Individual in the time and manner specified by the HITECH. Act.
f. Agreement to Restrict Disclosure. If Covered Entity is required to comply with a
restriction on the Disclosure of PHI pursuant to Section 13405 of the HITECH Act, then Covered Entity
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shall,to the extent necessary to comply with such restriction, provide written notice to Business Associate
of the name of the Individual requesting the restriction and the PHI affected thereby. Business Associate
shall, upon receipt of such notification, not Disclose the identified PHI to any health plan for the purposes
of carrying out Payment or Health Care Operations, except as otherwise required by law. Covered Entity
shall also notify Business Associate of any other restriction to the Use or Disclosure of PHI that Covered
Entity has agreed to in accordance with 45 CFR § 164.522.
6. Remuneration and Marketing.
a. Remuneration for PHI.This Section 6.a shall be effective with respect to exchanges
of PHI occurring six (6) months after the date of the promulgation of final regulations implementing the
provisions of Section 13405(d) of the HITECH Act. On and after such date, Business Associate agrees that
it shall not, directly or indirectly, receive remuneration in exchange for any PHI of Covered Entity except
as otherwise permitted by the HITECH Act.
b. Limitations on Use of PHI for Marketing Purposes. Business Associate shall not
Use or Disclose PHI for the purpose of making a communication about a product or service that
encourages recipients of the communication to purchase or use the product or service, unless such
communication: (I) complies with the requirements of subparagraph (i), (ii) or(iii) of paragraph (1) of the
definition of marketing contained in 45 CFR § 164.501, and (2) complies with the requirements of
subparagraphs (A), (B) or (C) of Section 13406(a)(2) of the HITECH Act, and implementing regulations or
guidance that may be issued or amended from time to time. Covered Entity agrees to assist Business
Associate in determining if the foregoing requirements are met with respect to any such marketing
communication.
7. Governmental Access to Records. Business Associate shall make its internal practices,
books and records relating to the Use and Disclosure of PHI available to the Secretary for purposes of
determining Covered Entity's compliance with the HIPAA Regulations and the HITECH Act. Except to the
extent prohibited by law, Business Associate agrees to notify Covered Entity of all requests served upon
Business Associate for information or documentation by or on behalf of the Secretary. Business Associate
shall provide to Covered Entity a copy of any PHI that Business Associate provides to the Secretary
concurrently with providing such PHI to the Secretary.
8. Minimum Necessary. To the extent required by the HITECH Act, Business Associate shall
limit its Use, Disclosure or request of PHI to the Limited Data Set or, if needed,to the minimum necessary
to accomplish the intended Use, Disclosure or request, respectively. Effective on the date the Secretary
issues guidance on what constitutes "minimum necessary" for purposes of the HIPAA Regulations,
Business Associate shall limit its Use, Disclosure or request of PHI to only the minimum necessary as set
forth in such guidance.
9. State Privacy Laws. Business Associate shall comply with state laws to extent that such
state privacy laws are not preempted by HIPAA or the HITECH Act.
10. Termination.
a. Breach by Business Associate. If Covered Entity knows of a pattern of activity or
practice of Business Associate that constitutes a material breach or violation of Business Associate's
obligations under this Agreement, then Covered Entity shall promptly notify Business Associate. With
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respect to such breach or violation, Business Associate shall take reasonable steps to cure such breach or
end such violation, if possible. If such steps are either not possible or are unsuccessful, upon written notice
to Business Associate, Covered Entity may terminate its relationship with Business Associate.
b. Breach by Covered Entity. If Business Associate knows of a pattern of activity or
practice of Covered Entity that constitutes a material breach or violation of Covered Entity's obligations
under this Agreement,then Business Associate shall promptly notify Covered Entity.With respect to such
breach or violation, Covered Entity shall take reasonable steps to cure such breach or end such violation,
if possible. If such steps are either not possible or are unsuccessful, upon written notice to Covered Entity,
Business Entity may terminate its relationship with Covered Entity.
c. Automatic Termination. This Agreement will automatically terminate, without
any further action by the parties hereto, at such time as there are no longer any Service Agreements by
and between the parties hereto.
d. Effect of Termination. Upon termination of this Agreement for any reason,
Business Associate shall either return or destroy all PHI, as requested by Covered Entity, that Business
Associate or its agents or subcontractors still maintain in any form and shall retain no copies of such PHI.
If Covered Entity requests that Business Associate return PHI, such PHI shall be returned in a mutually
agreed upon format and timeframe. If Business Associate reasonably determines that return or
destruction is not feasible, Business Associate shall continue to 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 of such PHI not feasible. If Business Associate is asked to destroy the PHI, Business Associate
shall destroy PHI in a manner that renders the PHI unusable, unreadable or indecipherable to
unauthorized persons as specified in the HITECH Act.
11. Amendment. The parties acknowledge that state and federal laws relating to data
security and privacy are rapidly evolving and that amendment of this Agreement may be required to
ensure compliance with such developments. The parties specifically agree to take such action as is
necessary to implement any new or modified standards or requirements of HIPAA,the HIPAA Regulations,
the HITECH Act and other applicable laws relating to the security or confidentiality of PHI. Upon the
request of Covered Entity, Business Associate agrees to promptly enter into negotiation concerning the
terms of an amendment to this Agreement incorporating any such changes.
12. No Third-Party Beneficiaries. Nothing express or implied in this Agreement is intended to
confer, nor shall anything herein confer, upon any person other than Covered Entity, Business Associate
and their respective successors or assigns, any rights, remedies,obligations or liabilities whatsoever.
13. Effect on Underlying Arrangement. In the event of any conflict between this Agreement
and any underlying arrangement between Covered Entity and Business Associate, the terms of this
Agreement shall control.
14. Survival. The provisions of this Agreement shall survive the termination or expiration of
any underlying arrangement between Covered Entity and Business Associate.
15. Interpretation.This Agreement shall he interpreted as broadly as necessary to implement
and comply with HIPAA,the HIPAA Regulations and the HITECH Act.The parties agree that any ambiguity
in this Agreement shall be resolved in favor of a meaning that complies and is consistent with such laws.
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16. Governing Law. This Agreement shall be construed in accordance with the laws of the
State of Florida.
17. Notices. All notices required or permitted under this Agreement shall be in writing and
sent to the other party as directed below or as otherwise directed by either party, from time to time, by
written notice to the other. All such notices shall be deemed validly given upon receipt of such notice by
certified mail, postage prepaid, facsimile transmission, e-mail or personal or courier delivery:
If to Covered Entity: Collier County Government Center
3311 Tamiami Trail E.
Naples, FL 34112
Attn: Michael Quigley, Risk Management Director
Telephone no: 239-252-8461
Facsimile no: 239-252-8048
If to Business Associate:
ImageTrend, LLC
20855 Kensington Blvd
Lakeville, MN 55044
Attn: Legal Department
Telephone: 952-469-1589
Email:contracts@imagetrend.com
18. Indemnification. The Business Associate shall indemnify and hold harmless Covered Entity
and any of Covered Entity's affiliates, directors, officers, employees and agents from and against any
claim, cause of action, liability, damage, cost or expense (including reasonable attorney's fees) arising out
of or directly relating to any non-permitted disclosure of Protected Health Information or other breach of
this Agreement by Business Associate or any affiliate, director, officer, employee, agent or subcontractor
of Business Associate.
19. Miscellaneous.
a. Severability. In the event that any provision of this Agreement is adjudged by any court
of competent jurisdiction to be void or unenforceable, all remaining provisions hereof
shall continue to be binding on the parties hereto with the same force and effect as
though such void or unenforceable provision had been deleted.
b. Waiver. No failure or delay in exercising any right, power or remedy hereunder shall
operate as a waiver thereof; nor shall any single or partial exercise of any right, power or
remedy hereunder preclude any other further exercise thereof or the exercise of any
other right, power or remedy. The rights provided hereunder are cumulative and not
exclusive of any rights provided by law.
c. Entire Agreement. This Agreement constitutes the entire agreement between the parties
hereto relating to the subject matter hereof, and supersedes any prior or
contemporaneous verbal or written agreements, communications and representations
relating to the subject matter hereof.
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d. Counterparts. Facsimile. This agreement may be signed in two or more counterparts,
each of which shall be deemed an original and all of which taken together shall constitute
one and the same instrument. A copy of this Agreement bearing a facsimile signature
shall be deemed to be an original.
IN WITNESS WHEREOF,the parties hereto have caused this Agreement to be signed as of the date
first set forth above.
COVERED ENTITY:
BOARD OF COUNTY COMMISSIONERS OF
COLLIER COUNTY, FLORIDA By 6( On heh2I OP d eJ
MiVhael Quigley, Director of Risk Management QUl eC
Contractor's Witnesses: BUSINESS ASSOCIATE:
ImageTrend, LLC
first Witness
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Scott R.Teach
Deputy County Attorney
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MAGETREND`
DATA EXCHANGE AUTHORIZATION
Between ImageTrend, LLC ("ImageTrend"), a Minnesota Corporation located at 20855 Kensington Blvd.,
Lakeville, MN 55044 and Collier County EMS ("the Data Controller" and "Client") residing at 8075 Lely
Cultural Parkway Naples„ FL 34113 for transmitting ePHI data as identified below.
Whereas; ImageTrend is a provider of data management services and a current Business Associate to
the Data Controller; and
Whereas;the Data Controller wishes ImageTrend to exchange certain ePHI data from and to the Data
Controller's System, in ImageTrend's capacity as a Business Associate.
Data Exchange Purpose The purpose of this Data Exchange Authorization is to exchange Data
Controller's data in accordance with the table below that lists the data exchange work items to be
fulfilled by ImageTrend ("the Identified Data Exchanges"). It is Data Controllers sole obligation to ensure
the "Destination" column is accurate. ImageTrend will fulfill and exchange data with the listed
Destination party, and will not deviate from the identified destination unless ImageTrend is directed
otherwise in writing by Data Controller. Notwithstanding any term to the contrary, ImageTrend shall not
be liable in any manner for sending or receiving data as outlined below; Data Controller assumes all risk
for the data source(s) and destination(s) identified below.
Description Quote Description Data Source Data Destination
Open Platform ImageTrend's Open Platform Healthcare ImageTrend at ESO
Healthcare Connection allows for the sending of Elite Lakeville,
Connection ePCR data (via NEMSIS XML)to a third MN55044
party system that transmits that onto a
hospital system and consumes patient
outcome data back, reconciles it, and
inserts it back into the patients ePCR
record. Please refer to ImageTrend's
Open Platform Healthcare Connection
Implementation Guide for specific fields
and workflow.
Authorization. Data Controller hereby authorizes ImageTrend to transmit, import, and/or disclose in
accordance with the Identified Data Exchanges, and to transmit, import and/or disclose other data
reasonably necessary to achieve the purpose of each work line item outlined in the table above.This
Agreement modifies any prior agreements of the parties only to the extent necessary to effect this
agreement, and does not otherwise change the terms of any prior agreements between the parties.
Right to Revoke or Terminate. Data Controller may terminate or revoke the right to transmit or disclose
data granted to ImageTrend by this Agreement at any time by providing reasonable written notice to
ImageTrend and providing a commercially reasonable period of time in which to effect the termination.
The Parties hereby agree to this Data Exchange Authorization:
13 November 2023 www.imagetrend.com Page 137 of 38
IMAGETREND M '
IN WITNESS WHEREOF,the Parties have executed this Agreement on the date and year first written
above by an authorized person or agent.
ATTEST:
Crystal K. Kinzel,Cler of the Circuit BOARD OF COUNTY COMMISSIONERS
Court and Co • 4 . - COLLIER COUNTY, FLORIDA
," . .: /
Rick LoCastro, Chairman
Dated: l 401 / 202 3
(SEAL) "/ st as-to 'pp Oman's
"sigrfa'tige only
Contractor's Witnesses: IMAGETREND, LLC
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App e as to Form d egality:
Deputy County Attorney
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