HomeMy WebLinkAboutContract 55602SERVICE AGREEMENT CSC No. 55602
(INNOCULATE�
This Service Agreement ("Agreement"), effective as of date of signatures below ("Effective Date"), is
made by and between Luminare Inc., with a place of business at TMC Innovation Institute, 2450
Holcombe Blvd., Suite X, Houston, Texas 77021 ("Luminare"), and the City of Ft Worth Texas with a
place of business at 200 Texas St. Fort Worth, TX 76102 ("Company").
The parties agree as follows:
Service. The parties intend for Company to use Luminare's Innoculate is identified in Exhibit B, which
is attached hereto and incorporated herein by reference, which services are will be provided to
Company as a hosted, software-as-a-service application (collectively, the "Service"). This agreement
is specifically for the Innoculate product. Subject to the terms and conditions of this Agreement,
Luminare grants to Company a nonexclusive and nontransferable license to use the Service far the
term of this Agreement. Company's use of the Service will be solely for its own internal purposes of
the Company, by its employees and any healthcare providers, pharmacists or other employees who are
involved either in patient care or quality management related to patient care and who are authorized
by the Company to use the Service at the Company's facilities and sites within the licensed
municipality. Company and Luminare shall each comply with their respective obligations that are set
forth on Exhibit A, which is attached hereto and incorporated herein by reference.
2. Payment. Company will pay to Luminare the fees and other amounts set forth on E�ibit B or as may
be specified in any mutually agreed upon SOW that is signed by both parties and incorporated by
reference into this Agreement. All fees and other amounts are exclusive of any sales use or other
similar taxes or charges, and Company is responsible for all taXes or charges assessed by any
governmental authority in connection with the provision and use of the Service under this Agreement,
except for income taxes payable by Luminare. Fees shall be invoiced as set forth in Exhibit B or in the
applicable SOW. Unless otherwise specified in Exhibit B or in the applicable SOW, any amount
invoiced is due and payable no later than 30 days after the date of invoice.
3. Term; Termination. This Agreement commences on the Effective Date and will remain in effect for
the term set forth on Exhibit B. The parties may extend this term by executing a signed modification
to this Agreement. Either party may terminate this Agreement if the other Party materially breaches
the terms and conditions set forth herein, provided however, that such breaching Party is provided no
less than thirty (30) days in which to cure such alleged material breach following actual receipt of the
written notice from the non-breaching Party describing the alleged breach in reasonable detail.
Sections 4 through 13 of this Agreement shall survive expiration or termination of this Agreement.
4. Ownership of Service IP. As between Company and Luminare, Company acknowledges and agrees
that the software and other intellectual property underlying the Service, as well as any Service user
materials, are the property of Luminare and are protected under U.S. and international intellectual
property laws, including copyrights, trademarks, service marks, patents, trade secrets or other
proprietary rights and laws. Luminare reserves all rights not expressly granted in this Agreement.
Luminare has the right, but not the obligation, to monitor the Service, Input Data (as defined herein)
and Service reports.
5. Ownership of Input Data; Permitted Use. "Input Data" means all information and data input into
Innoculate using the Service. As between Company and Luminare, Luminare acknowledges and
agrees that any Input Data is proprietary to Company and/or third parties, and not proprietary to
Luminare. Company represents and warrants that it has all necessary consents, or owns or otherwise
OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
controls all necessary rights, to supply Input Data in connection with the Service and that use of Input
Data for such purpose will not violate any applicable law or infringe or violate the rights of any third
party. Luminare will have no liability under this Agreement for any failure of the foregoing Company
representation and warranty. In addition, Company grants Luminare a nonexclusive license to use de-
identified and/or aggregated data uploaded to the Service and/or produced from Company's use of the
Service, for the purposes of evaluating effectiveness of the Service, making improvements to the
Service, and generating statistics regarding (i) any of the results of use of the Service or (ii) the general
effectiveness of inedications and other treatments, individually and in concert, on disease states.
6. Limitations of Liability. Except for any breaches of a party's obligations relating to confidentiality
or Company's obligations concerning its use of Luminare's intellectual property, in no event will
either party's aggregate liability hereunder to the other party exceed the total fees paid by Company
to Luminare for the twelve-month period preceding the date on which the subject liability arose.
EXCEPT FOR ANY BREACHES OF A PARTY'S OBLIGATIONS RELATING TO
CONFIDENTIALITY OR COMPANY'S OBLIGATIONS CONCERNING ITS USE OF
LUMINARE' S INTELLECTUAL PROPERTY HEREUNDER, IN NO EVENT SHALL EITHER
PARTY BE LIABLE, UNDER ANY LEGAL OR EQUITABLE THEORY OF LIABILITY, WITH
RESPECT TO THE SERVICE (EXCEPT TO THE EXTENT OTHERWISE REQUIRED BY
APPLICABLE LAW OR BY ANOTHER AGREEMENT BETWEEN THE PARTIES HERETO)
FOR ANY LOST DATA, LOST PROFITS, OR SPECIAL, 1NDIRECT, INCIDENTAL, PLINITIVE,
OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER REGARDLESS OF
WHETHER SUCH LOSS WAS FORESEEABLE OR THE PARTY SUFFERING THE LOSS OR
DAMAGE WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
7. Disclaimers. Company's access to and use of the Service is at Company's sole risk. Company
understands and agrees that the Service is provided to you on an "AS IS" and "AS AVAILABLE"
basis. Without limiting the foregoing, to the maximum extent permitted under applicable law,
LUMINARE DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND WITH
RESPECT TO THE SERVICE, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT
LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, OR NON-INFRINGEMENT
8. USE WARNINGS. THE COMPANY DOES NOT OFFER MEDICAL ADVICE, DIAGNOSES
OR OTHER HEALTH MANAGEMENT SERVICES OR ENGAGE IN THE PRACTICE OF
MEDICINE. THE SERVICE IS NOT INTENDED TO BE, AND DOES NOT CONSTITUTE,
A SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE BY PHYSICIANS OR
LICENSED INDEPENDENT PRACTITIONERS, OR A SUBSTITUTE FOR DIAGNOSIS,
TREATMENT OR HEALTH MANAGEMENT AND IS OFFERED FOR INFORMATIONAL
PURPOSES ONLY. FURTHERMORE, THE INFORMATION PRODUCED BY THE
SERVICE IS ONLY USEFUL TO THE EXTENT THAT THE INPUT DATA IS ACCURATE.
END USERS SHOULD ALWAYS RELY ON THEIR CLINICAL JUDGMENT WHEN
MAKING DECISIONS REGARDING PATIENT CARE. AT ALL TIMES, IT IS THE
RESPONSIBILITY OF COMPANY AND ITS END USERS TO ACCESS, REVIEW AND
RESPOND TO ALL RESULTS FROM USE OF THE SERVICE, INCLUDING WITHOUT
LIMITATION ANY ALERTS MADE AVAILABLE BY THE SERVICE (COLLECTIVELY,
SERVICE RESULTS�, IN A TIMELY AND CLINICALLY APPROPRIATE MANNER, AND
LUMINARE WILL HAVE NO LIABILITY TO COMPANY, ANY END USER OR ANY
THIRD PARTY FOR ANY FAILURE OF COMPANY, ANY END USER OR ANY OTHER
CLINICIAN TO APPROPRIATELY RESPOND TO ANY SERVICE RESULTS.
9. BUSINESS ASSOCIATE AGREEMENT: EXECUTION OF THIS CONTRACT WILL ALSO
RESULT IN EXECUTION OF THE ATTACHED BUSINESS ASSOCIATE AGREEMENT AND
THE TERMS INCLUDED THERE.
10. Any feedback provided by the Company regarding the Service ("Feedback") is the proprietary and
confidential information of Luminare, and the Company hereby assigns all right, title and interest in
and to such Feedback, including all intellectual property rights therein, to Luminare. The Company
agrees not to disclose or provide such Feedback to any third party.
11. This Agreement shall be governed by and interpreted in accordance with the laws of the State of Texas
exclusively, excluding its conflicts of laws principles. Both the Uniform Computer Information
Transactions Act and the United Nations Convention on Contracts for the International Sale of Goods
(1980) are excluded in their entirety from application to this Agreement. The parties consent to the
exclusive jurisdiction of and venue in the federal and/or state courts for Harris County, Texas, for all
claims arising out of or relating to this Agreement or the Company's use of the Service.
Notwithstanding any law, rule or regulation to the contrary, the Company agrees that any claim or
cause of action it may have arising out of this Agreement or the Company's use of the Service must
be filed within one (1) year after such claim or cause of action arose or be forever barred.
12. This Agreement, including all documents incorporated herein by reference, constitutes the complete
and exclusive agreement between the parties with respect to the subject matter hereof, and supersedes
and replaces any and all prior or contemporaneous discussions, negotiations, understandings and
agreements, written and oral, regarding such subject matter. Any additional or different terms in any
purchase order or other response by the Company shall be deemed objected to by Luminare without
need of further notice of objection, and shall be of no effect or in any way binding upon Luminare.
13. This Agreement may be executed in two or more counterparts, each of which will be deemed an
original, but all of which together shall constitute one and the same instrument. Once signed, any
reproduction of this Agreement made by reliable means (e.g., photocopy, PDF) is considered an
originaL This Agreement may be changed only by a written document signed by authorized
representatives of both parties.
IN WITNESS WHEREOF, the parties have caused their duly authorized officers to execute this
Agreement.
LUMINARE INC.
T. AIeX Fe�hqhdez
J. Alex Fernandez (Apr 19, 2021 08:49 CDT)
y•
Name: Alex Fernandez
Title: Chief Revenue Officer
Date: Apr 19, 2021
CLIENT: THE CITY OF FT WORTH
TEXAS
uq�e�ie wqsHih�rt-oh
By: Valerie Washington (Apr 2, 2021 06:00 CDT)
Name: Valerie Washington
Title: Assistant City Manager
Date: Apr 20, 2021
Attachments: BUSINESS ASSOCIATE AGREEMENT
�FFICIAL RECORD
CITY SECRETARY
FT. W�RTH, TX
EXHIBIT A
to Service Agreement
Service Use Requirements; Service Specifications
Part 1— Current Data Input and similar Technical Requirements
Company shall provide or supply, as applicable, the following: Administrative oversight to ensure
adequate overview of the use the Innoculate solution for the Company.
Part 2- Security Matters Concerning Use of Service
Input Data will be supplied to Luminare either by Company or on Company's behalf. In addition, in order
to access reports generated by the Service, Company will have access to certain Service web page(s).
Company will be responsible for maintaining the security and confidentiality of all activity (i) to supply
Input Data to the Service and (ii) to access reports generated for Company by the Service. Company will
take reasonable steps, including no less than industry standard security measures, to prevent unauthorized
use of the Service, and Company will immediately notify Luminare in writing of any unauthorized use of
any of its users' login names or passwords of which such user, or other Company party, becomes aware.
Luminare may suspend the Service (in whole or in part), including without limitation suspending access
for certain previously authorized users, in the event of the potential or actual compromise or unauthorized
use of the Service.
Part 3— Compliance with Applicable Law
Each party agrees to comply with all applicable federal, state and local laws, orders, regulations and
regulatory standards with respect to its respective obligations and performance under this Agreement and,
in the case of Company, with respect to Company's use of the Service.
Part 4 — Error Reporting
Company will follow Luminare's reasonable procedures and instructions to report any errors and
difficulties it encounters with regard to the Service so as to permit Luminare to recreate and evaluate same.
Part 5— Additional Restrictions on Company's Use of Service
Company will not (a) use the Service or any documentation, know-how or other information received
from Luminare or its representatives or licensors (the "Evaluation Materials'� to create any similar
application or service, (b) decompile, disassemble ar otherwise reverse engineer any technology employed
by the Service, or use any similar means to discover the source code or trade secrets embodied in the
Service, or otherwise circumvent any technical measure that controls access to the Service or (c) permit
any third party use the Service to do any of the foregoing. Except for the limited rights and licenses
expressly granted in this Agreement, no other license is granted, no other use is permitted and Luminare
and its licensors will retain all right, title and interest (including patents, copyrights, trade secrets and
trademarks) in and to the Service, Evaluation Materials and any underlying intellectual property
(acknowledging that none of the foregoing includes any Input Data). Company will not take any action
inconsistent with such ownership.
EXHIBIT B
to Service Agreement
Fee Schedule and Product Services
Contract term: 12-Month term from Contract Date. Will be auto renewed for 12-month terms unless
cancelled with 15 days' notice before the end of a term. Luminare will invoice Company on execution of
the Agreement listed in the below table.
Innoculate for COVID -19 (Note 1)
Reference Partner (Note 2)
$585,000
-$234,000
Prepaid 1-Year Discount -$87,750
License Subtotal $263,250
Annual State Vax integration (Note 3) $13,000
Pre-paid messaging bundle - 500,000 @$.015 per msg. (Note 4) $7,500
One time systems set up fee $1,500
Software Proposal Total $285,250
Notes:
1 Entire amount of this expense is 300% eligible for reimbursable by FEMA
1 Pricing valid until April 30, 2021 ( agreements and PO ). Priced for 15,000 vaccines per week
2 Reference Partners agree to a press release and promoting Innoculate within the TEDM and TACCHO community
3 Integration to state vaccination system is $6500 per year per Org Code
4 A message is a single email or SMS segment (160 characters). Messaging bundles will be billed
when available credits are less than 10%
Fees includes reasonable modifications
Optional Items:
Optional Waitlist License (Not Included)
Optional Dedicated phone/text/on-site Support team per month
Special Fees
• Messaging refers to all messaging modes (SMS Text Segment [160 Characters, Robocall, or
Email). Fees will billed in bundles in advance any time the remaining balance of unused
messages drops to below 10%.
• Customization and/or special project work beyond reasonable scope may be charged at an hourly
rate of $200/hr, with estimates provided for approval prior to proceeding.
Private and Confidential
tilling Information:
Billing Contact Phone
Billing Contact Email
Billing Address
PO Required (Y/N)?
Tax Exempt (Y/N)?
817-392-6170
Camillia.rvaY
exas.
200 Texas Street, Fort Worth, TX 76102
Y
Y If exempt please provide your tax certificate
BUSINESS ASSOCIATE AGREEMENT
This Business Associate Agreement (the `BAA"), is hereby entered into between the City of Ft Worth Texas
("Covered Entity"), with a place of business at 200 Texas St. Fort Worth, TX 76102 and Luminare Incorporated, a Delaware
GCorp (`Business Associate") on the date of signature below.
WHEREAS, Covered Entiry and Business Associate have executed the Agreement pursuant to which Business
Associate provides services (the "Agreement Services") for Covered Enriry that may require Business Associate to access or
create health information that is protected by state and/or federal law;
WHEREAS, Business Associate and Covered Entiry desire that Business Associate obtain access to such information
in accordance with the terms specified herein; and
NOW THEREFORE, in consideration of the mutual promises set forth in this BAA and other good and valuable
consideration, the sufficiency and receipt of which are hereby severally acknowledged, the parties agree as follows:
1.Definitions. Unless otherwise specified in this BAA, all capitalized terms not otherwise defined shall have the
meanings established in Title 45, Parts 160 and 164, of the United States Code of Federal Regulations, as amended from time
to time, and/or in the American Recovery and Reinvestment Act of 2009 ("ARRA"). For purposes of clarification, the
following terms shall have the definitions set forth below:
1.1 "Privacy Standards" shall mean the Standards for Privacy of Individually Identifiable Health Information
as set forth in 45 C.F.R. Parts 160 and 164.
12"Security Standards" shall mean the Security Standards for the Protection of Electronic Protected Health
Information as set forth in 45 C.F.R. Parts 160 and 164.
2.Business Associate Obli a�. Business Associate may receive from Covered Entity health information that is
protected under applicable state and/or federal law, including without limitation, Protected Health Information ("PHI").
Business Associate agrees not to Use or Disclose (or permit the Use or Disclosure o fl PHI in a manner that would violate the
requirements of the Privacy Standards or the Security Standards if the PHI were used or disclosed by Covered Entity in the
same manner. Business Associate shall use appropriate safeguards to prevent the Use or Disclosure of PHI other than as
expressly permitted under this BAA.
3.Use of PHL Business Associate may use PHI as necessary (i) for performing the Agreement Services, (ii) for the
proper management and administration of the Business Associate, or (iii) for carrying out its legal responsibilities, provided in
each case that such Uses are permitted under federal and state law. Covered Entity shall retain all rights in the PHI not granted
herein.
4.Disclosure of PHI. Business Associate may Disclose PHI as necessary (i) to perform the Agreement Services, (ii)
for the proper management and administration of the Business Associate, or (iii) to carry out its legal responsibilities, provided
that either (a) the Disclosure is Required by Law or (b) the Business Associate obtains reasonable assurances from the person
to whom the information is Disclosed that the information will be held confidenrial and further Used and Disclosed only as
Required by Law or for the purpose for which it was Disclosed to the person, and such person agrees to immediately notify the
Business Associate of any instances of which it is aware that the confidentiality of the information has been breached.
(i) S.Reports. Business Associate agrees to report to Covered Entity:
(ii) S.lAny Use or Disclosure of PHI not authorized by this BAA within five (5) days of the Business Associate
becoming aware of such unauthorized Use or Disclosure;
(iii) 5.2Any Security Incident within five (5) days of the Business Associate becoming aware of the Security
Incident; and
(iv) 5.3Each report of a Breach of Unsecured PHI Discovered by Business Associate, to the extent Business
Associate accesses, maintains, retains, modifies, records, stores, destroys or otherwise holds, Uses or
Discloses Unsecured PHI, unless delayed for law enforcement purposes, shall be made without delay and in
no case later than thirty (30) calendar days after Discovery of the Breach, and shall include the identificarion
of each Individual whose Unsecured PHI has been, or is reasonably believed by Business Associate to have
been, accessed, acquired or Disclosed during such Breach. Notwithstanding anything herein to the contrary,
the provisions of this Section 53 shall only be applicable to Breaches that are Discovered on or after the date
that is thirty (30) days after the date of publication of interim final regulations promulgated by the Secretary
that address notifications of Breaches of Unsecured PHI.
(v) 5.4Business Associate agrees to indemnify and hold harmless, Covered Entity, its Officers, directors,
shareholders, agents, and employees against all liability claims, damages, suits, demands, expenses, and civil
monetary penalties (including but not limited to, court costs and reasonable attorneys' fees) of every kind
arising out of the negligent errors and omissions or willful misconduct of Business Associate, its agents,
servants, employees and independent contractors (excluding Covered Entity) in the performance of or
conduct relating to this Section 5.
6.A�ents and Subcontractors. If Business Associate discloses PHI received from Covered Entity, or created or received
by Business Associate on behalf of Covered Entity, to agents, including a subcontractor (collectively, "Recipients"), Business
Associate shall require Recipients to agree in writing to the same restrictions and conditions that apply to the Business Associate
under this BAA.
7.Individual Ri,ghts to Access and Amendment.
7.lAccess. If Business Associate maintains a Designated Record Set on behalf of Covered Entity, Business
Associate shall permit an Individual to inspect or copy PHI contained in that set about the Individual in accordance with the
Privacy Standards set forth in 45 C.F.R. § 164.524, as it may be amended from time to time, unless excepted or a basis for
denial exists under 45 C.F.R. § 164.524, as determined by the Covered Entity. In the event a Business Associate uses or
maintains an Electronic Health Record on behalf of Covered Entity, then, as of the date required by ARRA, an Individual's
right of access under 45 C.F.R. § 164.524 shall include the right to obtain a copy of the PHI in an electronic format and, if the
Individual chooses in a clear, conspicuous and specific manner, to direct the Business Associate to transmit such copy to any
person designated by the Individual. Business Associate shall respond to any request from Covered Entity for access by an
Individual within five (5) days of such request unless otherwise agreed to by Covered Entity. The information shall be provided
in the form or format requested, if it is readily producible in such form or format, or in summary, if the Individual has agreed
in advance to accept the information in summary form. A reasonable, cost based fee may be charged for copying PHI or
providing a summary of PHI in accordance with 45 C.F.R. § 164.524(c)(4), provided that any such fee relating to a copy or
summary of PHI provided in an electronic form may not be greater than the labor costs incurred in response to the request for
the copy or summary.
72Amendment. Business Associate shall accommodate an Individual's right to amend PHI or a record about
the Individual in a Designated Record Set in accordance with the Privacy Standards set forth at 45 C.F.R. § 164.526, as it may
be amended from time to time, unless excepted or a basis for denial exists under 45 C.F.R. § 164.526, as determined by the
Covered Entity. Covered Entity shall determine whether a denial to an amendment request is appropriate or an exception
applies. Business Associate shall notify Covered Entity within five (5) days of receipt of any request for amendment by an
Individual and shall make any amendment requested by Covered Entity within ten (10) days of such request. Business
Associate shall have a process in place for requests for amendments and for appending such requests to the Designated Record
Set.
8.Accountin� of Disclosures.
8.1General Accounting Provisions. Business Associate shall make available to Covered Entiry 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 C.F.R. § 164.528, as it may be amended from time to time, unless an exception to such Accounting exists
under 45 C.F.R. § 164.528. Such Accounring 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 Privacy Standards. Business Associate
shall provide such information necessary to provide an accounting within thirty (30) days of Covered Entity's request.
8.2Special Provisions for Disclosures made through an Electronic Health Record. As of the date required by
ARRA, if Covered Entity uses or maintains an Electronic Health Record with respect to PHI and if Business Associate makes
Disclosures of PHI for Treatment, Payment or Health Care Operations purposes through such Electronic Health Record,
Business Associate will provide an accounting of Disclosures that Covered Entity has determined were for Covered Entity's
Treatment, Payment and/ar Health Care Operations purposes to Individuals who request an accounting directly from Business
Associate. Any accounting made pursuant to this Section 8.2 shall be limited to Disclosures made in the three (3) years prior
to the Individual's request for the accounting. The content of the accounting shall be in accordance with 45 C.F.R. § 164.528,
as it may be amended from time to time.
83Pees for an Accounting. Any accounting provided under Section 8.1 or Section 8.2 must be provided
without cost to the Individual or to Covered Entity if it is the first accounting requested by an Individual within any twelve (12)
month period; however, a reasonable, cost based fee may be charged for subsequent accountings if Business Associate informs
the Covered Entity and the Covered Entiry informs the Individual in advance of the fee, and the Individual is afforded an
opportuniry to withdraw or modify the request.
9.Withdrawal of Consent or Authorization. If the use or disclosure of PHI in this BAA is based upon an Individual's
specific consent or authorizarion for the use of his or her PHI, and (i) the Individual revokes such consent or authorizarion in
writing, (ii) the effecrive date of such authorization has expired, or (iii) the consent or authorizarion is found to be defective in
any manner that renders it invalid, Business Associate agrees, if it has notice of such revocation or invalidity, to cease the Use
and Disclosure of any such Individual's PHI except to the extent it has relied on such Use or Disclosure, or where an exception
under the Privacy Standards expressly applies.
lO.Records and Audit. Business Associate shall make available to Covered Entity and to the Secretary or her agents,
its internal practices, books, and records relating to the Use and Disclosure of PHI received from, or created or received by,
Business Associate on behalf of Covered Entity for the purpose of determining Covered Entiry's compliance with the Privacy
Standards and the Security Standards or any other health oversight agency, in a timely a manner designated by Covered Entity
or the Secretary. Except to the extent prohibited by law, Business Associate agrees to notify Covered Entity immediately upon
receipt by Business Associate of any and all requests served upon Business Associate by or on behalf of any and all government
authoriries relating to PHI received from, or created or received by, Business Associate on behalf of Covered Enrity.
11.Notice of Privacv practices. Covered Entity shall provide to Business Associate its Norice of Privacy Practices
("Notice"), including any amendments to the Notice. Business Associate agrees that it will abide by any limitations set forth
in the Norice, as it may be amended from time to time, of which it has knowledge. An amended Notice shall not affect permitted
Uses and Disclosures on which Business Associate has relied prior to receipt of such Notice.
12.Securitv. Business Associate will (i) implement Administrative, Physical and Technical Safeguards that reasonably
and appropriate protect the confidentiality, integrity and availability of the Electronic Protected Health Information that it
creates, receives, maintains, or transmits on behalf of Covered Entity; and (ii) ensure that any agent, including a subcontractor,
to whom it provides Electronic Protected Health Information agrees to implement reasonable and appropriate safeguards to
protect such information. Further, as of the date required by ARRA, Business Associate shall comply with the standards and
implementarion specifications set forth in 45 C.F.R. §§ 164.308, 164.310, 164.312 and 164.316 with respect to such
Administrative, Physical and Technical Safeguards.
13.Term and Termination.
13.1 This BAA shall commence on the effective date of the Agreement and shall remain in effect until
terminated in accordance with the terms of this Section 13, provided, however, that any terminarion shall not affect the
respective obligations or rights of the parties arising under this BAA prior to the effective date of termination, all of which shall
continue in accordance with their terms.
13.2Covered Entity shall have the right to terminate this BAA for any reason upon thirty (30) days written
notice to Business Associate.
13.3Covered Entity, at its sole discretion, may immediately terminate this BAA and shall have no further
obligations to Business Associate hereunder if any of the following events shall have occurred and be continuing:
(i)Business Associate shall fail to observe or perform any material covenant or agreement contained in this
BAA for ten (10) days after written notice thereof has been given to Business Associate by Covered Entity; or
(ii)A violation by Business Associate of any provision of the Privacy Standards, Security Standards, or other
applicable federal or state privacy law.
notice.
13.4Upon the terminarion of the Agreement, this BAA shall terminate simultaneously without additional
13.SUpon termination of this BAA for any reason, Business Associate agrees either to return to Covered
Entity ar to destroy all PHI received from Covered Entity or otherwise created through the performance of the Agreement
Services far Covered Entity, that is in the possession ar control of Business Associate or its agents. In the case of information
for which it is not feasible to "return or destroy," Business Associate shall continue to comply with the covenants in this BAA
with respect to such PHI and shall comply with other applicable state or federal law, which may require a specific period of
retention, redaction, or other treatment. Terminarion of this BAA shall be cause far Covered Entity to terminate the Agreement.
14.Compliance with Red Fla� Policies. Covered Entity shall provide to Business Associate any policies and
procedures adopted by the Covered Entity to detect, prevent and mitigate the risk of identity theft in accordance with the "Red
Flag Rules" promulgated by the Federal Trade Commission, as well as any amendments to such policies and procedures.
Business Associate agrees that it will abide by such policies and procedures, and any amendments to such policies and
procedures of which it is aware, in rendering the Agreement Services to Covered Entity.
15.Miscellaneous.
15.1Notice. All notices, requests, demands and other communications required or permitted to be given or
made under this BAA shall be in writing, shall be effective upon receipt or attempted delivery, and shall be sent by (i) personal
delivery; (ii) certified or registered United States mail, return receipt requested; or (iii) overnight delivery service with proof
of delivery. Notices shall be sent to the addresses below.
Business Associate:Luminare Incorporated
2450 Holcombe Blvd, Suite X Houston, Tx 77025
Attention:
Sarma Velamuri
Covered Entity:the City of Ft Worth Texas
200 Texas St. Fort Worth, TX 76102
Attention: Valerie Washington
15.2Waiver. No provision of this BAA or any breach thereof shall be deemed waived unless such waiver is
in writing and signed by the party claimed to have waived such provision or breach. No waiver of a breach shall constitute a
waiver of or excuse any different or subsequent breach.
15.3Assignment. Neither party may assign (whether by operarion or law or otherwise) any of its rights or
delegate or subcontract any of its obligations under this BAA without the prior written consent of the other parry.
Notwithstanding the foregoing, Covered Enriry shall have the right to assign its rights and obligations hereunder to any entity
that is an affiliate or successor of Covered Enriry, without the prior approval of Business Associate.
15.4Compliance with ARRA; Agreement to Amend BAA. The parties agree that it is their intention (i) to
comply with the privacy and securiry provisions contained in Title XIII of ARRA and (ii) to incorporate those provisions into
this BAA to the extent required by ARRA. The parties further agree to amend this BAA to the extent necessary to comply
with state and federal laws, including without limitation, the Health Insurance Portability and Accountability Act of 1996
("HIPAA") and ARRA, and any regulations promulgated or other guidance issued pursuant to HIPAA and ARRA.
15.SEntire Agreement. This BAA constitutes the complete agreement between Business Associate and
Covered Enriry relating to the matters specified in this BAA, and supersedes all prior representations or agreements, whether
aral or written, with respect to such matters. In the event of any conflict between the terms of this BAA and the terms of the
Agreement or any such later agreement(s), the terms of this BAA shall control unless the terms of such Agreement or later
agreement comply with the Privacy Standards and the Security Standards. No oral modification or waiver of any of the
provisions of this BAA shall be binding on either party. This BAA is for the benefit of, and shall be binding upon the parries,
their affiliates and respective successors and assigns. No third party shall be considered a third party beneficiary under this
BAA, nor shall any third party have any rights as a result of this BAA.
15.6Governing Law. This BAA shall be governed by and interpreted in accordance with the laws of the State
of Texas.
15.7Counterparts. This BAA may be executed in one or more counterparts, each of which shall be deemed
an original, but all of which together shall constitute one and the same document. In making proof of this BAA, it shall not be
necessary to produce or account for more than one such counterpart executed by the party against whom enforcement of this
BAA is sought.
ADDENDUM TO SERVICE AGREEMENT (INNOCULATE)
BETWEEN
THE CITY OF FORT WORTH
AND
LUMINARE INC.
This Addendum to Service Agreement ("Addendum") is entered into by and between
Luminare Inc. ("Vendor") and the City of Fort Worth ("Cit�'), collectively the "parties."
The Contract documents shall include the following:
1. The Service Agreement; and
2. This Addendum.
Notwithstanding any language to the contrary in the attached Service Agreement (the
"Agreement"), the parties stipulate by evidence of eXecution of this Addendum below by a
representative of each party duly authorized to bind the parties hereto, that the parties hereby agree
that the provisions in this Addendum below shall be applicable to the Agreement as follows:
1. Term. The Agreement shall commence upon the date signed by the Assistant City
Manager below ("Effective Date") and shall eXpire no later than one-year from the Effective Date
("EXpiration Date"), unless terminated earlier in accordance with the provisions of this Agreement
or otherwise extended by the parties. This Agreement may be renewed for a single one (1) year
renewal term at the City's option, each a"Renewal Term." The City shall provide Vendor with
written notice of its intent to renew at least thirty (30) days prior to the end of each term.
2. Termination.
a. Convenience. Either City or Vendor may terminate the Agreement at any
time and for any reason by providing the other party with 30 days written notice of
termination.
b. Breach. If either party commits a material breach of the Agreement, the non-
breaching Party must give written notice to the breaching party that describes the breach
in reasonable detail. The breaching party must cure the breach ten (10) calendar days after
receipt of notice from the non-breaching party, or other time frame as agreed to by the
parties. If the breaching party fails to cure the breach within the stated period of time, the
non-breaching party may, in its sole discretion, and without prejudice to any other right
under the Agreement, law, or equity, immediately terminate the Agreement by giving
written notice to the breaching party.
c. Fiscal Fundin� Out. In the event no funds or insufficient funds are
appropriated by City in any fiscal period for any payments due hereunder, City will notify
Vendor of such occurrence and the Agreement shall terminate on the last day of the fiscal
period for which appropriations were received without penalty or expense to the City of
Addendum Page 1 of 6
any kind whatsoever, except as to the portions of the payments herein agreed upon for
which funds have been appropriated.
d. Duties and Obli�ations of the Parties. In the event that the Agreement is
terminated prior to the EXpiration Date, City shall pay Vendor for services actually
rendered up to the effective date of termination and Vendor shall continue to provide City
with services requested by City and in accordance with the Agreement up to the effective
date of termination. Upon termination of the Agreement for any reason, Vendor shall
provide City with copies of all completed or partially completed documents prepared under
the Agreement. In the event Vendor has received access to City information or data as a
requirement to perform services hereunder, Vendor shall return all City provided data to
City in a machine readable format or other format deemed acceptable to City.
3. Attorneys' Fees, Penalties, and Liquidated Dama�es. To the extent the attached
Agreement requires City to pay attorneys' fees for any action contemplated or taken, or penalties
or liquidated damages in any amount, City objects to these terms and any such terms are hereby
deleted from the Agreement and shall have no force or effect.
4. Law and Venue. The Agreement and the rights and obligations of the parties hereto
shall be governed by, and construed in accordance with the laws of the United States and state of
Texas, exclusive of conflicts of laws provisions. Venue for any suit brought under the Agreement
shall be in a court of competent jurisdiction in Tarrant County, TeXas. To the eXtent the Agreement
is required to be governed by any state law other than Texas or venue in Tarrant County, City
objects to such terms and any such terms are hereby deleted from the Agreement and shall have
no force or effect.
5. Linked Terms and Conditions. If the Agreement contains a website link to terms
and conditions, the linked terms and conditions located at that website link as of the effective date
of the Agreement shall be the linked terms and conditions referred to in the Agreement. To the
extent that the linked terms and conditions conflict with any provision of either this Addendum or
the Agreement, the provisions contained within this Addendum and the Agreement shall control.
If any changes are made to the linked terms and conditions after the date of the Agreement, such
changes are hereby deleted and void. Further, if Vendor cannot clearly and sufficiently
demonstrate the exact terms and conditions as of the effective date of the Agreement, all of the
linked terms and conditions are hereby deleted and void.
6. Insurance. The City is a governmental entity under the laws of the state of Texas
and pursuant to Chapter 2259 of the TeXas Government Code, entitled "Self-Insurance by
Governmental Units," is self-insured and therefore is not required to purchase insurance. To the
extent the Agreement requires City to purchase insurance, City objects to any such provision, the
parties agree that any such requirement shall be null and void and is hereby deleted from the
Agreement and shall have no force or effect. City will provide a letter of self-insured status as
requested by Vendor.
Addendum Page 2 of 6
7. Sovereign ImmunitX. Nothing herein constitutes a waiver of City's sovereign
immunity. To the eXtent the Agreement requires City to waive its rights or immunities as a
government entity; such provisions are hereby deleted and shall have no force or effect.
8. Limitation of Liability and IndemnitX. To the eXtent the Agreement, in any way,
limits the liability of Vendor or requires City to indemnify or hold Vendor or any third party
harmless from damages of any kind or character, City objects to these terms and any such terms
are hereby deleted from the Agreement and shall have no force or effect.
9. IP Indemnification. Vendor agrees to indemnify, defend, settle, or pay, at its
own cost and expense, including the payment of attorney's fees, any claim or action against
the City for infringement of any patent, copyright, trade mark, service mark, trade secret,
or other intellectual property right arising from City's use of the Deliverable(s), or any part
thereof, in accordance with the Agreement, it being understood that the agreement to
indemnify, defend, settle or pay shall not apply if City modifies or misuses the
Deliverable(s). So long as Vendor bears the cost and expense of payment for claims or actions
against the City pursuant to this section 8, Vendor shall have the right to conduct the defense
of any such claim or action and all negotiations for its settlement or compromise and to settle
or compromise any such claim; however, City shall have the right to fully participate in any
and all such settlement, negotiations, or lawsuit as necessary to protect the City's interest,
and City agrees to cooperate with Vendor in doing so. In the event City, for whatever reason,
assumes the responsibility for payment of costs and expenses for any claim or action brought
against the City for infringement arising under the Agreement, the City shall have the sole
right to conduct the defense of any such claim or action and all negotiations for its settlement
or compromise and to settle or compromise any such claim; however, Vendor shall fully
participate and cooperate with the City in defense of such claim or action. City agrees to give
Vendor timely written notice of any such claim or action, with copies of all papers City may
receive relating thereto. Notwithstanding the foregoing, the City's assumption of payment of
costs or expenses shall not eliminate Vendor's duty to indemnify the City under the
Agreement. If the Deliverable(s), or any part thereof, is held to infringe and the use thereof
is enjoined or restrained or, if as a result of a settlement or compromise, such use is
materially adversely restricted, Vendor shall, at its own expense and as City's sole remedy,
either: (a) procure for City the right to continue to use the Deliverable(s); or (b) modify the
Deliverable(s) to make them/it non-infringing, provided that such modification does not
materially adversely affect City's authorized use of the Deliverable(s); or (c) replace the
Deliverable(s) with equally suitable, compatible, and functionally equivalent non-infringing
Deliverable(s) at no additional charge to City; or (d) if none of the foregoing alternatives is
reasonably available to Vendor, terminate the Agreement, and refund all amounts paid to
Vendor by the City, subsequent to which termination City may seek any and all remedies
available to City under law. VENDOR'S OBLIGATIONS HEREUNDER SHALL BE
SECURED BY THE REQUISITE INSURANCE COVERAGE REQUIRED BY CITY.
10. Data Breach. Vendor further agrees that it will monitor and test its data
safeguards from time to time, and further agrees to adjust its data safeguards from time to
time in light of relevant circumstances or the results of any relevant testing or monitoring. If
Vendor suspects or becomes aware of any unauthorized access to any financial or personal
Addendum Page 3 of 6
identifiable information ("Personal Data") by any unauthorized person or third party, or
becomes aware of any other security breach relating to Personal Data held or stored by
Vendor under the Agreement or in connection with the performance of any services
performed under the Agreement or any Statement(s) of Work ("Data Breach"), Vendor shall
immediately notify City in writing and shall fully cooperate with City at Vendor's expense
to prevent or stop such Data Breach. In the event of such Data Breach, Vendor shall fully
and immediately comply with applicable laws, and shall take the appropriate steps to remedy
such Data Breach. Vendor will defend, indemnify and hold City, its Affiliates, and their
respective officers, directors, employees and agents, harmless from and against any and all
claims, suits, causes of action, liability, loss, costs and damages, including reasonable
attorney fees, arising out of or relating to any third party claim arising from breach by
Vendor of its obligations contained in this Section, except to the extent resulting from the
acts or omissions of City. All Personal Data to which Vendor has access under the
Agreement, as between Vendor and City, will remain the property of City. City hereby
consents to the use, processing and/or disclosure of Personal Data only for the purposes
described herein and to the extent such use or processing is necessary for Vendor to carry
out its duties and responsibilities under the Agreement, any applicable Statement(s) of Work,
or as required by law. Vendor will not transfer Personal Data to third parties other than
through its underlying network provider to perform its obligations under the Agreement,
unless authorized in writing by City. Vendor's obligation to defend, hold harmless and
indemnify City shall remain in full effect if the Data Breach is the result of the actions of a
third party. All Personal Data delivered to Vendor shall be stored in the United States or
other jurisdictions approved by City in writing and shall not be transferred to any other
countries or jurisdictions without the prior written consent of City.
11. No Mandatory Arbitration. To the extent the Agreement requires mandatory
arbitration to resolve conflicts, City objects to these terms and any such terms are hereby deleted
from the Agreement and shall have no force or effect.
12. Insurance. Vendor agrees that insurance coverage provided to City by Vendor is
sufficient for purposes of the Agreement only.
13. No Debt. In compliance with Article 11 § 5 of the TeXas Constitution, it is
understood and agreed that all obligations of City hereunder are subject to the availability of funds.
If such funds are not appropriated or become unavailable, City shall have the right to terminate the
Agreement except for those portions of funds which have been appropriated prior to termination.
14. Public Information. City is a government entity under the laws of the State of TeXas
and all documents held or maintained by City are subject to disclosure under the Texas Public
Information Act. To the eXtent the Agreement requires that City maintain records in violation of
the Act, City hereby objects to such provisions and such provisions are hereby deleted from the
Agreement and shall have no force or effect. In the event there is a request for information marked
Confidential or Proprietary, City shall promptly notify Vendor. It will be the responsibility of
Vendor to submit reasons objecting to disclosure. A determination on whether such reasons are
sufficient will not be decided by City, but by the Office of the Attorney General of the State of
Texas or by a court of competent jurisdiction.
Addendum Page 4 of 6
15. Addendum Controllin�. If any provisions of the attached Agreement, conflict with
the terms herein, are prohibited by applicable law, conflict with any applicable rule, regulation or
ordinance of City, the terms in this Addendum shall control.
16. Immi�ration Nationality Act. Vendor shall verify the identity and employment
eligibility of its employees who perform work under the Agreement, including completing the
Employment Eligibility Verification Form (I-9). Upon request by City, Vendor shall provide City
with copies of all I-9 forms and supporting eligibility documentation for each employee who
performs work under the Agreement. Vendor shall adhere to all Federal and State laws as well as
establish appropriate procedures and controls so that no services will be performed by any Vendor
employee who is not legally eligible to perform such services. VENDOR SHALL INDEMNIFY
CITY AND HOLD CITY HARMLESS FROM ANY PENALTIES, LIABILITIES, OR
LOSSES DUE TO VIOLATIONS OF THIS PARAGRAPH BY VENDOR, VENDOR'S
EMPLOYEES, SUBCONTRACTORS, AGENTS, OR LICENSEES. City, upon written notice
to Vendor, shall have the right to immediately terminate the Agreement for violations of this
provision by Vendor.
17. No Boycott of Israel. If Vendor has fewer than 10 employees or the Agreement is
for less than $100,000, this section does not apply. Vendor acknowledges that in accordance with
Chapter 2270 of the Texas Government Code, City is prohibited from entering into a contract with
a company for goods or services unless the contract contains a written verification from the
company that it: (1) does not boycott Israel; and (2) will not boycott Israel during the term of the
contract. The terms "boycott Israel" and "company" shall have the meanings ascribed to those
terms in Section 808.001 of the TeXas Government Code. By signing this Addendum, Vendor
certifies that T�endor's signature provides written verification to City that T�endor: (1) does not
boycott Israel; and (2) will not boycott Israel during the term of the Agreement.
18. Ri�ht to Audit. Vendor agrees that City shall, until the eXpiration of three (3) years
after final payment under the Agreement, have access to and the right to examine any directly
pertinent books, documents, papers and records of Vendor involving transactions relating to the
Agreement. Vendor agrees that City shall have access during normal working hours to all
necessary Vendor facilities and shall be provided adequate and appropriate workspace in order to
conduct audits in compliance with the provisions of this section. City shall give Vendor reasonable
advance notice of intended audits.
(signature page follows)
Addendum Page 5 of 6
ACCEPTED AND AGREED:
CITY:
City of Fort Worth
uq�e�ie wqsHih�rt-oh
B Valerie Washington (Apr 2, 2021 06:00 CDT)
Y�
Name: Valerie Washington
Title: Assistant City Manager
Date: Apr 20, 2021
Approval Recommended:
Coa�� G�G�i�t��rb���
B Cody ittenburg (Apr 19, 2021 09: CDT)
y•
Name: Cody Whittenburg
Title: Environmental Manager
Attest:
�D� �D�'IGi�Gi � GD�'ITGi�G�f
By:
�for Ronald P. Gonzales (Apr 20, 2021 1L15 CDT)
�dp4C
Name: Mary Kayser a Fo
Title: City Secretary �,�,o�����
VENDOR:
o=
*F
Contract Compliance Manager:
By signing I acknowledge that I am the person
responsible for the monitoring and administration
of this contract, including ensuring all
performance and reporting requirements.
By:
J in Cox (Apr 19, 2021 08:5 CDT)
Name: ustin Cox
Title: Grants Manager
Approved as to Form and Legality:
�$ .SfYY/%ZA
B JB Strong (Apr , 2021 10:35 CDT)
Y�
Name: John B. Strong
Title: Assistant City Attorney
Contract Authorization:
M&C: N/A
Luminare Inc.
T. �1/eX Fe�narrdez
B�7; J. Alex Fernandez (Apr 19, 2021 08:49 CDT)
Name: J. AIeX Fernandez
Title: Chief Revenue Officer
Date: Apr19,zozi
�FFICIAL RECORD
CITY SECRETARY
Addendum
FT. W�RTH, TX