HomeMy WebLinkAboutContract 53882-A1R5CSC No. 53882-A1R5
FIRST AMENDMENT AND FIFTH RENEWAL
TO
CITY OF FORT WORTH CONTRACT 53882
This First Amendment and Fifth Renewal ("First Amendment and Fifth Renewal") is
entered into by and between the City of Fort Worth ("City"), a home rule municipality, with its
principal place of business at 100 Fort Worth Trail, Fort Worth, Texas, and ImageTrend, LLC
("Vendor"). City and Vendor are each individually referred to herein as a "party" and collectively
referred to as the "parties."
WHEREAS, on May 6, 2020, the parties entered into that certain Addendum to Master
Software and Services Agreement, City Secretary Contract No. 53882 (the "Addendum");
WHEREAS, on April 9, 2024, the Vendor changed its name from "ImageTrend, Inc."
to "ImageTrend, LLC," as described in City Secretary Contract No. 53882-NCI;
WHEREAS, the current term of the Addendum expires on May 5, 2025;
WHEREAS, the parties wish to amend the Addendum to include a Master Subscription
Agreement; and
WHEREAS, the parties wish to renew the Addendum through May 5, 2026.
NOW, THEREFORE, the parties, acting herein by the through their duly authorized
representatives, enter into the following agreement:
1.
AMENDMENTS
The Addendum is hereby amended to include the attached Master Subscription Agreement,
attached hereto as "Exhibit A" and incorporated herein by reference for all purposes. In the event
of any conflict between terms and conditions in the attached Exhibit A and the terms and conditions
of the Addendum, the terms and conditions of the Addendum shall control. To the extent the
Master Subscription Agreement, in any way, 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 Master Subscription Agreement and shall have no force or
effect.
2.
RENEWALS
The Agreement is hereby renewed for a one-year Renewal Term beginning May 6, 2025.
3.
OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
First Amendment and Fifth Renewal to Fort Worth City Secretary Contract No. 53882 Pagel of 3
ALL OTHER TERMS SHALL REMAIN THE SAME
All other provisions of the Addendum which are not expressly amended herein shall
remain in full force and effect. If any provisions of the attached Exhibit A conflict with the terms
of the Addendum, are prohibited by applicable law, conflict with any applicable rule, regulation
or ordinance of City, the terms of the Addendum shall control.
4.
ELECTRONIC SIGNATURE
This First Amendment and Fifth Renewal may be executed in multiple counterparts,
each of which shall be an original and all of which shall constitute one and the same
instrument. A facsimile copy or computer image, such as a PDF or tiff image, or a signature,
shall be treated as and shall have the same effect as anoriginal.
[Signature Page Follows]
First Amendment and Fifth Renewal to Fort Worth City Secretary Contract No. 53882 Page 2 of 3
ACCEPTED AND AGREED:
CITY OF FORT WORTH:
By:
Name: Richard Zavala
Title: Interim Assistant City Manager
Date: Mar 11, 2025
APPROVAL RECOMMENDED:
By:
Name: Kevin Gunn
Title: Director, IT Solutions Department
ATTEST:
By:
Name: Jannette Goodall
Title: City Secretary
VENDOR:
Imagetrend, LLC
,7011 Sachr
By: Jon Sachs (Mar 4, 202514:50 MST)
Name: Jon Sachs
Title: CFO
Date: Mar4,2025
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: Mark(Ma r 5,202515:58 CST)
Name: Steven Vandever
Title: Sr. IT Solutions Manager
APPROVED AS TO FORM AND
LEGALITY:
By:
Name: Hye Won Kim
Title: Assistant City Attorney
CONTRACT AUTHORIZATION:
M&C: 20-0133
Approval Date: 03/17/2020
Form 1295: 2020-616803
ATTEST:
By:
Name:
Title:
OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
First Amendment and Fifth Renewal to Fort Worth City Secretary Contract No. 53882 Page 3 of 3
EXHIBIT A
ImageTrend S
Master Subscription Agreement
This Master Subscription Agreement (the "MSA") is between the Customer listed in the signature block
below ("Customer") and ImageTrend, LLC ("ImageTrend"), a Minnesota entity. (each, a "Party" and
together, the "Parties.")
The purpose of this Agreement is to establish the terms and conditions under which Customer may purchase
ImageTrend's Services and Professional Services as described in an Order Form, Statement of Work or
other document signed or agreed to by the Parties.
In the event of any inconsistency or conflict between the terms of the MSA and the terms of any Order
Form or Statement of Work, the terms of the Order Form or Statement of Work shall control.
SECTION 1. ACCESS TO THE SERVICES
1.1 Service. ImageTrend will make the Services and Customer Data available pursuant to this Agreement
and the applicable Order Form(s) in accordance with Customer's Service Plan. ImageTrend will use
commercially reasonable efforts to make the Services available pursuant to the Service Level Agreement
which is located at httns://www.ima2etrend.com/leaal/sla.
1.2 Support. ImageTrend will, at no additional charge, provide Customer standard customer support for
the Services as detailed on the Site at httDs://www.ima2etrend.com/suuport/.
1.3 Implementation Services. ImageTrend may provide Implementation Services subject to the terms and
conditions stated in a Project Plan. Any education or training hours expire one year from the date of
execution of such Order Form.
1.4 Professional Services. ImageTrend may provide Professional Services, including education or training,
subject to the terms and conditions stated in a Project Plan or Statement of Work. Any education or training
hours expire one year from the date of execution of such Statement of Work.
1.5 Updates. Customer acknowledges that ImageTrend may update the features and functionality of the
Services during the Subscription Term. Customer will be notified prior to upgrade or maintenance releases.
ImageTrend will not materially decrease the overall functionality of the Services purchased by Customer
during the Subscription Term. ImageTrend shall provide Customer with thirty (30) days' advance notice of
any deprecation of any material feature or functionality.
SECTION 2. USE OF THE SERVICES
2.1 Compliance. Customer is responsible for compliance with the provisions of this Agreement for any and
all activities that occur under an Account. Without limiting the foregoing, Customer will ensure that its use
of the Services is compliant with all applicable laws and regulations as well as any and all privacy notices,
agreements or other obligations Customer may maintain or enter into.
2.2 System Requirements. Customer is responsible for procuring and maintaining the network connections
that connect Customer's network to the Services including, but not limited to, browser software that
supports protocols used by ImageTrend, including the Transport Layer Security (TLS) protocol or other
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protocols accepted by ImageTrend. ImageTrend assumes no responsibility for the reliability or performance
of any connections as described in this Section.
2.3 No Competitive Access. Customer may not access the Services for competitive purposes or if Customer
is a competitor of ImageTrend, LLC.
2.4 Product Specific Terms. The provision and use of certain Services are subject to ImageTrend's Product
Specific Terms located at hops://www.ima2etrend.com/le2al/productspecificterms.
SECTION 3. TERM, CANCELLATION AND TERMINATION
3.1 Term. The term of this Master Subscription Agreement begins on the date this MSA is fully executed
(the "Effective Date") and will remain in effect until Customer no longer has a valid Order Form or
Statement of Work in effect, or until this MSA is terminated in accordance with the terms hereof, whichever
occurs first. The Subscription Term will be defined in each individual Order Form. Unless a subscription to
a Service is terminated in accordance with this MSA or the applicable Order Form, or unless otherwise
stated in the applicable Order Form, Customer's subscription to a Service will automatically renew for a
one-year Subscription Term at the end of each prior Subscription Term.
3.2 Cancellation. Either Party may elect to terminate an Account and subscription to a Service at the end
of the then -current Subscription Term by providing notice to revenueoperations(&Ima2eTrend.com no less
than sixty (60) days prior to the end of such Subscription Term.
3.3 Termination for Cause. A Party may terminate this Agreement for cause (a) upon written notice to the
other Party of a material breach by the other Party if such breach remains materially uncured after thirty
(30) days from the date of receipt of such notice; or (b) if the other Party becomes the subject of a petition
in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for
the benefit of creditors.
ImageTrend will refund any prepaid fees covering the remainder of the Subscription Term as of the effective
date of termination if this Agreement is terminated by Customer in accordance with this Section 3.3 for
ImageTrend's uncured material breach.
Customer must pay any unpaid fees covering the remainder of the Subscription Term pursuant to all
applicable Service Order if ImageTrend terminates this Agreement for Customer's material breach in
accordance with this Section. In no event will ImageTrend's termination for cause relieve Customer of its
obligation to pay any fees payable to ImageTrend for the period prior to termination.
3.4 Non -appropriation. In the event Customer does not receive sufficient funds from the legislature that
appropriates its budget, Customer will provide ImageTrend with written notice of such non -appropriation.
In such event, the Agreement and any applicable Order Forms and Statements of Work will be terminated
at the end of the then -existing Term. ImageTrend will be entitled to payment for Services and any
Implementation Services or Professional Services provided through the date of notification or a date
determined by such legislature, whichever is later.
3.5 Export of Customer Data upon termination or expiration. Upon Customer's written request, ninety
(90) days after the effective date of termination or expiration, ImageTrend will make Customer Data
available to Customer. Thereafter, ImageTrend will delete Customer Data in accordance with NIST 800-88
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standards, unless prohibited by law or legal order. For clarity, Customer Data that has been de -identified
pursuant to section 6.5 or Aggregate Data Insights derived from Aggregate Data pursuant to section 6.6
shall not be subject to such deletion.
SECTION 4. USAGE AUDIT AND PLAN MODIFICATIONS
4.1 Usage Audit. Once per year, ImageTrend will conduct an audit of Customer's use of the Services. In
the event such audit shows increased usage beyond what is listed in the Order Form, ImageTrend will
provide 30 days' notice of an increase in fees related to such increased usage.
4.2 Payment Portals. If Customer mandates that ImageTrend use a vendor payment portal or compliance
portal that charges ImageTrend a subscription fee or a percentage of any uploaded invoice as a required
cost of doing business, Customer will be invoiced by ImageTrend for, and Customer is obligated to pay, the
cost of this fee.
4.3 Taxes. Unless otherwise stated, ImageTrend's Subscription Charges do not include any Taxes. Customer
is responsible for paying Taxes assessed in connection with the subscription to the Services except those
assessable against the ImageTrend Group measured by its net income. ImageTrend will invoice the
Customer for such Taxes if ImageTrend believes it has a legal obligation to do so and Customer agrees to
pay such Taxes if so invoiced. ImageTrend agrees to exempt Customer from any taxes for which Customer
provides to ImageTrend a tax exemption certificate prior to the issuance of an invoice; provided, however,
that no such exemption shall be extended to Customer following written notice to ImageTrend from a taxing
authority of appropriate jurisdiction that Customer does not qualify for the claimed exemption.
SECTION 5. CONFIDENTIAL INFORMATION
Each Party will protect the other's Confidential Information from unauthorized use, access or disclosure in
the same manner as each Parry protects its own Confidential Information, but with no less than reasonable
care. Except as otherwise expressly permitted pursuant to this Agreement, each Parry may use the other
Party's Confidential Information solely to exercise its respective rights and perform its respective
obligations under this Agreement and shall disclose such Confidential Information (a) solely to the
employees and/or non -employee service providers and contractors who have a need to know such
Confidential Information and who are bound by terms of confidentiality intended to prevent the misuse of
such Confidential Information; (b) as necessary to comply with an order or subpoena of any administrative
agency or court of competent jurisdiction; or (c) as reasonably necessary to comply with any applicable law
or regulation. The provisions of this Section 5 shall control over any non -disclosure agreement by and
between the Parties and any such non -disclosure agreement shall have no further force or effect with respect
to the exchange of Confidential Information after the execution of this Agreement. This section shall not
apply to any information which (a) was publicly known prior to the time of disclosure by the disclosing
Party, or (b) becomes publicly known after such disclosure through no action or inaction of the receiving
Party in violation of this Agreement. Given the unique nature of Confidential Information, the Parties agree
that any violation or threatened violation by a Party to this Agreement with respect to Confidential
Information may cause irreparable injury to the other Party. Therefore, the Parties agree such violation or
threatened violation shall entitle the other Party to seek injunctive or other equitable relief in addition to all
legal remedies.
SECTION 6. CUSTOMER DATA SECURITY, USE AND REQUIREMENTS
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6.1 Safeguards. ImageTrend will maintain commercially reasonably administrative, physical, and
technical safeguards for protection of the security, confidentiality and integrity of Customer Data. Those
safeguards will include, but will not be limited to, measures designed to prevent unauthorized access to or
disclosure of Customer Data (other than by Customer). ImageTrend's compliance with such safeguards
shall be deemed compliance with ImageTrend's obligations to protect Customer Data as set forth in the
Agreement.
6.2 Customer Data. ImageTrend will, and Customer hereby instructs ImageTrend to, access Customer
Data to provide, secure and improve the Services. Customer is solely responsible for the accuracy, content,
and legality of all Customer Data.
6.3 Business Associate Agreement. To the extent Customer is considered a "covered entity" under 45 CFR
160.103 of the Health Insurance Portability and Accountability Act of 1996, and its implementing
regulations ("HIPAA"), the Parties shall execute a Business Associate Agreement, which shall be attached
hereto as Exhibit A and incorporated herein by reference into this Agreement once signed by the Parties.
6.4 Data Export Authorization
Customer hereby authorizes ImageTrend to transmit Customer Data to an end point as is required by the
Service in order for it to function as intended. The following products require data to be exported in order
to meet their functions:
• HIH DM Fax Treatment Query
• First Watch Distribution
• Transfers from site to site
• HDE open platform healthcare connection
6.5 De -Identification. ImageTrend may use Customer Data to create de -identified data (a "De -identified
Data Set"). Such De -identified Data Set shall no longer constitute, as applicable, identifiable Customer Data
or Protected Health Information, as defined under HIPAA at 45 CFR 160.103, and ImageTrend may, in its
discretion, transform, analyze, distribute and redistribute, create derivative works of, license, make
available to third party researchers, or otherwise use such De -identified Data Set except as limited by
applicable law and regulation. Notwithstanding any of the foregoing, ImageTrend shall create the De -
identified Data Set in accordance with the then current HIPAA standards for de -identification set forth at
45 CFR § 164.514(b).
6.6 Data Aggregation. Customer hereby grants ImageTrend a non-exclusive license during the term of this
Agreement to use, reproduce, display, make derivative or collective works of and otherwise exploit
Customer Data, including the right to compile Customer Data collected and/or combine it with data
collected from other data sources to create Aggregate Data and to use such Aggregate Data to create
Aggregate Data Insights;
6.7 Data Ownership. Customer hereby irrevocably assigns, transfers, and conveys to ImageTrend all of
the Customer's right, title, and interest in and to a De -identified Data Set and Aggregate Data Insights,
including the right to sue, counterclaim, and recover for all past, present, and future infringement,
misappropriation, or dilution thereof, and all rights corresponding thereto throughout the world (the
"Assignment"). To the extent Customer cannot make the Assignment as a matter of applicable law,
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Customer hereby irrevocably grants to ImageTrend, without further consideration, an exclusive, perpetual,
worldwide, transferable, sublicensable (through multiple tiers), royalty -free, fully paid -up license under any
and all such rights to exercise any and all present or future rights in the De -identified Data Set and the
Aggregate Data Insights.
SECTION 7. TEMPORARY SUSPENSION
In the event ImageTrend detects or has reasonable suspicion of any Malicious Software connected to
Customer's Account or use of a Service by Customer, ImageTrend reserves the right to restrict
functionalities or suspend the Services (or any part thereof), Customer's Account or Customer's rights to
access and use the Services and remove, disable or quarantine any Customer Data or other content. Unless
legally prohibited from doing so or where ImageTrend is legally required to take immediate action,
ImageTrend will use commercially reasonable efforts to notify Customer as soon as practicable when taking
any of the foregoing actions. ImageTrend will use commercially reasonable efforts to (a) mitigate any
interruption to the Service, and (b) restore the Services as soon as practicable. ImageTrend will not be liable
to Customer or any other third party for any modification, suspension or discontinuation of Customer's
rights to access and use the Services under this Section 7. ImageTrend may refer any suspected fraudulent,
abusive, or illegal activity by Customer to law enforcement authorities at ImageTrend's sole discretion.
SECTION 8. NON-IMAGETREND SERVICES
If Customer decides to enable, access or use Non-ImageTrend Services, Customer's access and use of such
Non-ImageTrend Services shall be governed solely by the terms and conditions of such Non-ImageTrend
Services. ImageTrend does not endorse, is not responsible or liable for, and makes no representations as to
any aspect of such Non-ImageTrend Services, including, without limitation, their content or the manner in
which they handle, protect, manage or process data (including Customer Data), or any interaction between
Customer and the provider of such Non-ImageTrend Services. ImageTrend cannot guarantee the continued
availability of such Non-ImageTrend Service features. Customer irrevocably waives any claim against
ImageTrend with respect to such Non-ImageTrend Services. ImageTrend is not liable for any damage or
loss caused or alleged to be caused by or in connection with Customer's enablement, access or use of any
such Non-ImageTrend Services, or Customer's reliance on the privacy practices, data security processes or
other policies of such Non-ImageTrend Services.
SECTION 9. INTELLECTUAL PROPERTY RIGHTS
9.1 Intellectual Property Rights. Each Party shall retain all rights, title and interest in any of its respective
Intellectual Property Rights. The rights granted to Customer to use the Service(s) under this Agreement do
not convey any additional rights in the Service(s) or in any Intellectual Property Rights of ImageTrend
associated therewith. Subject only to limited rights to access and use the Service(s) as expressly stated
herein, all rights, title and interest in and to the Services and all hardware, Software and other components
of or used to provide the Services and ImageTrend's machine learning algorithms, including all related
Intellectual Property Rights, will remain with ImageTrend and belong exclusively to ImageTrend.
9.2 Feedback. ImageTrend shall have a fully paid -up, royalty -free, worldwide, transferable, sub -licensable
(through multiple layers), assignable, irrevocable and perpetual license to implement, use, modify, and
incorporate into the Services or otherwise use any suggestions, enhancement requests, recommendations or
other feedback regarding the Services that ImageTrend receives from Customer or other third parties acting
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on Customer's behalf. ImageTrend also reserves the right to seek intellectual property protection for any
features, functionality or components that may be based on or that were initiated by suggestions,
enhancement requests, recommendations or other feedback regarding the Services that ImageTrend receives
from Customer or other third parties acting on Customer's behalf.
9.3 Use of ImageTrend Marks. Customer may only use the ImageTrend Marks in a manner permitted by
ImageTrend, provided Customer does not attempt, now or in the future, to claim any rights in the
ImageTrend Marks, dilute or degrade the distinctiveness of the ImageTrend Marks, or use the ImageTrend
Marks to disparage or misrepresent ImageTrend or ImageTrend Services. ImageTrend may use Customer
Marks with written agreement of Customer.
9.4 Ownership of Customer Data. Customer shall retain ownership rights, including all Intellectual
Property Rights, to all Customer Data.
SECTION 10. REPRESENTATIONS, WARRANTIES AND DISCLAIMERS
10.1 Warranties. Each Party represents and warrants to the other that (a) this Agreement has been duly
executed and delivered and constitutes a valid and binding agreement enforceable against such Party in
accordance with its terms; (b) no authorization or approval from any third party is required in connection
with such Parry's execution, delivery or performance of this Agreement; and (c) the execution, delivery and
performance of the Agreement does not and will not violate the terms or conditions of any other agreement
to which it is a parry or by which it is otherwise bound.
10.2ImageTrend Warranties. ImageTrend warrants that during an applicable Subscription Term (a)
ImageTrend does not have any express or implied obligation to a third party which in any way conflicts
with any of ImageTrend's obligations under this Agreement; (b) the Services will perform materially in
accordance with the applicable documentation; and (c) all implementation services and will be provided in
a professional and workmanlike manner in accordance with applicable industry standards. For any breach
of a warranty in this section, Customer's exclusive remedies are those described in Section 3.3 herein. The
warranties herein do not apply to any misuse or unauthorized modification of the Services made by
Customer.
To the extent applicable, ImageTrend represents and warrants to Customer that ImageTrend (i) is not
currently excluded, debarred, or otherwise ineligible to participate in any federal health care program as
defined in 42 U.S.C. Section 1320a-7b(f) ("the Federal Healthcare Programs"); (ii) has not been convicted
of a criminal offense related to the provision of health care items or services and not yet been excluded,
debarred, or otherwise declared ineligible to participate in the Federal Healthcare Programs, and (iii) is not
under investigation or otherwise aware of any circumstances which may result in ImageTrend being
excluded from participation in the Federal Healthcare Programs. This shall be an ongoing representation
and warranty during the term of this Agreement, and ImageTrend shall immediately notify Customer of any
change in the status of the representations and warranty set forth in this section.
10.3 Disclaimers. EXCEPT AS SPECIFICALLY SET FORTH IN SECTION 11.2, THE SERVICES ARE
PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT ANY WARRANTIES OF
ANY KIND TO THE FULLEST EXTENT PERMITTED BY LAW, AND IMAGETREND EXPRESSLY
DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING,
BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS
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FOR A PARTICULAR PURPOSE, AND NON -INFRINGEMENT. CUSTOMER ACKNOWLEDGES
THAT IMAGETREND DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED,
TIMELY, SECURE, ERROR -FREE OR FREE FROM VIRUSES OR OTHER MALICIOUS SOFTWARE,
AND NO INFORMATION OR ADVICE OBTAINED BY CUSTOMER FROM IMAGETREND OR
THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN
THIS AGREEMENT.
SECTION 11. INDEMNIFICATION
11.1 Indemnification by ImageTrend. ImageTrend will indemnify and defend the Customer from and
against any claim brought by a third party against Customer alleging that Customer's use of a Service as
permitted hereunder (1) infringes or misappropriates a third party's valid patent, copyright, trademark or
trade secret (an "IP Claim"); (2) is grossly negligent or constitutes willful misconduct; (3) resulted in fraud;
(4) resulted in personal injury or death (any of (1) through (4) are a "Claim"). ImageTrend shall, at
ImageTrend's expense, defend such Claim and pay damages finally awarded against Customer in
connection therewith, including reasonable fees and expenses of attorneys engaged by ImageTrend for such
defense, provided that (a) Customer promptly notifies ImageTrend of the threat or notice of such Claim; (b)
ImageTrend will have sole, exclusive control and authority to select defense attorneys, defend and/or settle
any such Claim (however, ImageTrend shall not settle or compromise any claim that results in liability or
admission of any liability by Customer without Customer's prior written consent); and (c) Customer fully
cooperates with ImageTrend in connection therewith. If use of a Service by Customer has become, or, in
ImageTrend's opinion, is likely to become, the subject of any IP Claim, ImageTrend may, at ImageTrend's
option and expense (i) procure for Customer the right to continue using the Service(s) as set forth hereunder;
(ii) replace or modify a Service to make it non -infringing; or (iii) if options (i) or (ii) are not commercially
reasonable or practicable as determined by ImageTrend, terminate Customer's subscription to the Service(s)
and repay Customer, on a pro-rata basis, any Subscription Charges paid to ImageTrend for the unused
portion of Customer's Subscription Term for such Service(s). ImageTrend will have no liability or
obligation under this Section 12.1 with respect to any IP Claim if such claim is caused in whole or in part
by (x) compliance with designs, data, instructions or specifications provided by Customer; (y) modification
of the Service(s) by anyone other than ImageTrend or ImageTrend Personnel; or (z) the combination,
operation or use of the Service(s) with other hardware or software where a Service would not by itself be
infringing. The provisions of this Section 12.1 state the sole, exclusive and entire liability of ImageTrend
to Customer and Customer's sole remedy with respect to a Claim brought by reason of access to or use of
a Service by Customer.
11.2 Indemnification by Customer. Customer will indemnify, defend and hold ImageTrend harmless
against any claim brought by a third party against ImageTrend (a) arising from or related to Customer's use
of a Service in breach of this Agreement (and not arising solely from the Service itself); or (b) alleging that
Customer Marks or content selected by Customer in the design and implementation of the Services,
including but not limited to the URL, graphics, illustrations, logos, and marks, or Service Data infringes or
misappropriates a third party's valid patent, copyright, trademark or trade secret; provided that (i)
ImageTrend promptly notifies Customer of the threat or notice of such claim; (ii) Customer will have the
sole and exclusive control and authority to select defense attorneys, and to defend and/or settle any such
claim (however, Customer shall not settle or compromise any claim that results in liability or admission of
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any liability by ImageTrend without ImageTrend's prior written consent); and (iii) ImageTrend fully
cooperates with Customer in connection therewith.
SECTION 12. LIMITATION OF LIABILITY
12.1 EXCLUSION OF DAMAGES. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL
THEORY (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE) SHALL EITHER
PARTY TO THIS AGREEMENT, OR THEIR RESPECTIVE AFFILIATES, OFFICERS, DIRECTORS,
EMPLOYEES, AGENTS, SERVICE PROVIDERS, SUPPLIERS OR LICENSORS, BE LIABLE TO THE
OTHER PARTY OR ITS AFFILIATES FOR ANY LOST PROFITS, LOST SALES OR BUSINESS, LOST
DATA (WHERE SUCH DATA IS LOST IN THE COURSE OF TRANSMISSION VIA CUSTOMER'S
SYSTEMS OR OVER THE INTERNET THROUGH NO FAULT OF IMAGETREND), BUSINESS
INTERRUPTION, LOSS OF GOODWILL, COSTS OF COVER OR REPLACEMENT, OR FOR ANY
OTHER TYPE OF INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR
PUNITIVE LOSS OR DAMAGES, OR FOR ANY OTHER INDIRECT LOSS OR DAMAGES
INCURRED BY THE OTHER PARTY OR ITS AFFILIATES IN CONNECTION WITH THIS
AGREEMENT, THE SERVICES OR PROFESSIONAL SERVICES, REGARDLESS OF WHETHER
SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN
SUCH DAMAGES.
12.2 LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN
THIS AGREEMENT, IMAGETREND'S AGGREGATE LIABILITY TO THE CUSTOMER ARISING
OUT OF THIS AGREEMENT, THE SERVICES OR PROFESSIONAL SERVICES, SHALL IN NO
EVENT EXCEED THE SUBSCRIPTION CHARGES AND/OR PROFESSIONAL SERVICES FEES
PAID BY THE CUSTOMER DURING THE TWELVE (12) MONTHS PRIOR TO THE FIRST EVENT
OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. CUSTOMER ACKNOWLEDGES AND
AGREES THAT THE ESSENTIAL PURPOSE OF THIS SECTION 13.2 IS TO ALLOCATE THE RISKS
UNDER THIS AGREEMENT BETWEEN THE PARTIES AND LIMIT POTENTIAL LIABILITY
GIVEN THE SUBSCRIPTION CHARGES AND PROFESSIONAL SERVICES FEES, WHICH WOULD
HAVE BEEN SUBSTANTIALLY HIGHER IF IMAGETREND WERE TO ASSUME ANY FURTHER
LIABILITY OTHER THAN AS SET FORTH HEREIN. IMAGETREND HAS RELIED ON THESE
LIMITATIONS IN DETERMINING WHETHER TO PROVIDE CUSTOMER WITH THE RIGHTS TO
ACCESS AND USE THE SERVICES AND/OR THE PROFESSIONAL SERVICES PROVIDED FOR IN
THIS AGREEMENT. THE LIMITATIONS SET FORTH IN SECTION 13.2 SHALL NOT APPLY TO
CLAIMS OR DAMAGES RESULTING FROM IMAGETREND'S INDEMNITY OBLIGATIONS IN
SECTION 12.1 OF THIS AGREEMENT.
12.3 LIMITATION OF LIABILITY IN THE AGGREGATE. THE LIMITATION OF LIABILITY
PROVIDED FOR HEREIN APPLIES IN AGGREGATE TO ANY AND ALL CLAIMS BY CUSTOMER
AND ITS AFFILIATES, AND SHALL NOT BE CUMULATIVE.
12.4 Enforceable against ImageTrend. Any claims or damages that Customer may have against
ImageTrend shall only be enforceable against ImageTrend and not any other entity, nor any officers,
directors, representatives or agents of ImageTrend.
SECTION 13. ASSIGNMENT, ENTIRE AGREEMENT AND AMENDMENT
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13.1 Assignment. Except as permitted herein, neither party may, directly or indirectly, by operation of law
or otherwise, assign all or any part of this Agreement or rights under this Agreement, or delegate
performance of its duties under this Agreement, without written prior consent of the other party, which
consent will not be unreasonably withheld. Notwithstanding the foregoing, (a) subject to Section 2.6 herein,
Customer may, without ImageTrend's consent, assign this Agreement in connection with any merger or
change of control of Customer or the sale of all or substantially all of Customer's assets provided that any
such successor agrees to fulfill its obligations pursuant to this Agreement; and (b) ImageTrend may, without
Customer's consent, assign this Agreement in connection with any merger or change of control of
ImageTrend or the sale of all or substantially all of ImageTrend's assets provided that any such successor
agrees to fulfill its obligations pursuant to this Agreement. Subject to the foregoing restrictions, this
Agreement will be fully binding upon, inure to the benefit of and be enforceable by the Parties and their
respective successors and assigns.
13.2 Entire Agreement. This Agreement constitutes the entire agreement and supersedes any and all prior
agreements between Customer and ImageTrend, with regard to the subject matter hereof. This Agreement
shall apply in lieu of the terms or conditions in any purchase order, request for information, request for
proposal, or other order documentation Customer provide(s) and all such terms or conditions in such
purchase order, request for information, request for proposal, or other order documentation are null and
void. Except as expressly stated herein, there are no other agreements, representations, warranties or
commitments which may be relied upon by either Party with respect to the subject matter hereof. There are
no oral promises, conditions, representations, understandings, interpretations or terms of any kind between
the Parties, except as may otherwise be expressly provided herein. The headings used herein are for
convenience only and shall not affect the interpretation of the terms of this Agreement.
13.3 Waiver. Either Party's failure to enforce at any time any provision of this Agreement does not
constitute a waiver of that provision or of any other provision of this Agreement.
SECTION 14. SEVERABILITY
If any term in this Agreement is determined to be invalid or unenforceable by a competent court or
governing body, such term shall be replaced with another term consistent with the purpose and intent of
this Agreement, and the remaining provisions of this Agreement shall remain in effect.
SECTION 15. RELATIONSHIP OF THE PARTIES
The Parties are independent contractors, and this Agreement does not create a partnership, franchise, joint
venture, general agency, fiduciary or employment relationship between the Parties. Customer is solely
responsible for determining whether the Services meet Customer's technical, business, or regulatory
requirements.
SECTION 16. NOTICE
16.1 Notices to Customer. All notices provided by ImageTrend to Customer under this Agreement may be
delivered in writing by (a) nationally recognized delivery service ("Courier") or U.S. mail to the contact
mailing address provided by Customer on any Order Form; or (b) electronic mail to the electronic mail
address provided for the Account owner.
141
ImageTrend 2
16.2 Notices to ImageTrend. All notices provided by Customer to ImageTrend under this Agreement must
be delivered in writing by (a) Courier or U.S. mail to 20855 Kensington Blvd., Lakeville, MN U.S.A. Attn:
Legal Department; or (b) electronic mail to contractsn,ImaQeTrend.com.
16.3 Timing of Notices. All notices provided by either Party to the other shall be deemed to have been
given immediately upon delivery by electronic mail; or upon the earlier of proof of receipt or two (2)
business days after being deposited in the mail or with a Courier as permitted above.
SECTION 17. GOVERNING LAW
This Agreement shall be governed by the laws of the State of Minnesota, without reference to conflict of
laws principles. Any disputes under this Agreement shall be resolved in a court of general jurisdiction in
Hennepin County, Minnesota. Customer hereby expressly agrees to submit to the exclusive personal
jurisdiction of this jurisdiction for the purpose of resolving any dispute relating to this Agreement or relating
to access to or use of the Services by Customer.
SECTION 18. ETHICAL CONDUCT AND COMPLIANCE
Neither Party, nor any of its employees or agents, has offered, received or been offered, directly or indirectly,
any illegal or improper bribe or kickback (whether in the form of a payment, gift, undue advantage, or thing
of value), or will offer or accept the same in connection with this Agreement.
SECTION 19. SURVIVAL
Sections 2.1, 3.5, 5, 6.5-6.7, 10-17 and 20 shall survive termination of this Agreement with respect to use
of the Services by Customer. Termination of this Agreement shall not limit a Party's liability for obligations
accrued as of or prior to termination or for any breach of this Agreement.
SECTION 20. DEFINITIONS
When used in this Agreement with initial letters capitalized, these terms have the following meaning:
"Account" means any accounts or instances created by, or on behalf of, Customer within the Services.
"Aggregate Data" means the compilation of Customer Data collected over time and/or the combination of
Customer Data with data collected from other data sources, and the derived data resulting from the analysis
and processing of such compiled and combined data to create Aggregate Data Insights.
"Aggregate Data Insights" means the conclusions, patterns, trends, metrics, statistical models, predictions,
or other analytical outcomes derived from the processing, examination, or interpretation of Aggregate Data.
"Agreement" means the Master Subscription Agreement together with any and all Product Specific Terms,
Order Form and other mutually executed documents. The Master Subscription Agreement may also be
referred to as "MSA."
"Confidential Information" means all information disclosed by one Party to the other Party which is in
tangible form and designated as confidential or is information, regardless of form, which a reasonable
person would understand to be confidential given the nature of the information and circumstances of
disclosure, including but not limited to the pricing terms, product plans and designs, business processes,
security notifications, and customer advocacy communications. Notwithstanding the foregoing,
10
ImageTrend S
Confidential Information shall not include information that (a) was already known to the receiving Party at
the time of disclosure by the disclosing Parry; (b) was or is obtained by the receiving Party from a third
party not known by the receiving Parry to be under an obligation of confidentiality with respect to such
information; (c) is or becomes generally available to the public other than by violation of this Agreement
or another valid agreement between the Parties; or (d) was or is independently developed by the receiving
Party without the use of the disclosing Party's Confidential Information.
"Customer Data" means all electronic data, text, messages, communications or other materials submitted
to and stored within a Service by Customer in connection with Customer's use of such Service. "Customer"
Data" does not include Protected Health Information that has been de -identified pursuant to section 6.5 of
this Agreement and Aggregate Data Insights derived from Aggregate Data pursuant section 6.6.
"Force Majeure Event" means any circumstances beyond ImageTrend's reasonable control, including,
but not limited to, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike
or other labor problem (other than one involving ImageTrend employees), Internet service provider failure
or delay, Non-ImageTrend Services, or acts undertaken by third parties, including without limitation, denial
of service attack.
"ImageTrend Marks" means any trademarks, service marks, service or trade names, taglines, logos or
other designations of ImageTrend, whether registered or unregistered.
"Intellectual Property Rights" means any and all of a Parry's patents, inventions, copyrights, trademarks,
domain names, trade secrets, know-how and any other intellectual property and/or proprietary rights.
"Malicious Software" means any viruses, malware, Trojan horses, time bombs, or any other similar
harmful software.
"Non-ImageTrend Services" means third party products, applications, services, software, networks,
systems, directories, websites, databases and information which a Service links to, or which Customer may
connect to or enable in conjunction with a Service, including, without limitation, Non-ImageTrend Services
which may be integrated directly into an Account by Customer or at Customer's direction.
"Order Form" means ImageTrend's generated order form(s) executed by Customer with respect to
Customer's subscription to a Service.
"Personnel" means employees and/or non -employee contractors of ImageTrend engaged by ImageTrend
in connection with performance hereunder.
"Planned Downtime" means planned downtime for upgrades and maintenance to the Services scheduled
in advance of such upgrades and maintenance.
"Product Specific Terms" means ImageTrend's Product Specific Terms located at
httns://www.ima2etrend.com/leLal/nroductsDecificterms.
"Professional Services" means professional services (including any training, success and implementation
services) provided by ImageTrend Personnel as indicated on an Order Form or other written document such
as an SOW.
11
ImageTrend 2
"Service(s)" means the products and services that are used or ordered by Customer via an Orde Form
referencing this Agreement, and made available by ImageTrend, via the applicable Customer login.
"Services" exclude (a) Non-ImageTrend Services as that term is defined in this Agreement; and (b) any
Additional Features or Associated Services that are not provided under this Agreement or Customer's
Service Plan. From time to time, the names and descriptions of the Services or any individual Service may
be changed. To the extent Customer is given access to such Service as so described by virtue of a prior
Service Order or other prior acceptance of this Agreement, this Agreement shall be deemed to apply to such
Service as newly named or described.
"Site" means a website operated by ImageTrend, including httDs://www.Ima2eTrend.com. as well as all
other websites that ImageTrend operates (but does not include the Services).
"Subscription Charges" means all charges associated with Customer's access to and use of an Account.
"Subscription Term" means the period during which Customer has agreed to subscribe to a Service.
"Taxes" means taxes, levies, duties or similar governmental assessments, including value-added, sales, use
or withholding taxes assessable by any local, state, provincial or foreign jurisdiction.
IN WITNESS WHEREOF: the undersigned parties, each having authority to bind their respective
organizations, hereby agree.
Customer
Signature:
Print Name: Richard Zavala
Title: Interim Assistant City Manager
Date: Mar 11, 2025
ImageTrend, LLC
Signature: 7M khr
Jon Sachs (Mar 4, 20251450 MST)
Print Name: Jon Sachs
Title: CFO
Date: Mar 4, 2025
IL
CSC 53882 Amendment 1 Renewal 5
Final Audit Report 2025-03-04
Created: 2025-03-04
By: Kayla Kimmes (kkimmes@imagetrend.com)
Status: Signed
Transaction ID: CBJCHBCAABAA2MnrgmCdzzhkl_-c3yi3TrctbulSoDSM
"CSC 53882 Amendment 1 Renewal 5" History
Document created by Kayla Kimmes (kkimmes@imagetrend.com)
2025-03-04 - 9:45:56 PM GMT
Document emailed to Jon Sachs (jsachs@imagetrend.com) for signature
2025-03-04 - 9:47:43 PM GMT
Email viewed by Jon Sachs (jsachs@imagetrend.com)
2025-03-04 - 9:50:14 PM GMT
Document e-signed by Jon Sachs (jsachs@imagetrend.com)
Signature Date: 2025-03-04 - 9:50:30 PM GMT - Time Source: server
�i Agreement completed.
2025-03-04 - 9:50:30 PM GMT
a Adobe Acrobat Sign
ACITY COUNCIL AGEND
Create New From This M&C
Official site of the City of Fort Worth, Texas
FoRTWORm
Ir-
REFERENCE **M&C 20- 361NCIDENT SOFTWARE
DATE: 3/17/2020 NO.: 0133 LOG NAME: PURCHASE AND MEDSTAR
ILA
CODE: C TYPE: CONSENT PUBLIC NO
HEARING:
SUBJECT. Authorize Purchase of Software, Maintenance, and Support with ImageTrend, Inc. for an
Electronic Patient Care Reporting and Incident Data Collection System, and Authorize
Execution of an Interlocal Agreement with MedStar Moblie Healthcare for Reimbursement
of Related Costs (ALL COUNCIL DISTRICTS)
RECOMMENDATION:
It is recommended that City Council:
1) Authorize the purchase of electronic patient care reporting and fire incident record management system software from
ImageTrend, Inc. using a sole source purchasing agreement; and
2) Authorize execution of an interlocal agreement with MedStar Mobile Healthcare for the reimbursement of hardware
costs and direct payment of software costs related to the implementation and ongoing maintenance of the system (City
Project No. 102578).
DISCUSSION:
The Fire Department currently utilizes an outdated records management system for the collection of incident data and
patient care records. This requires additional time for both the entry of routine incident data as well as the transfer of
clinical records from firefighters to MedStar Mobile Healthcare (MedStar) paramedics at the incident scene. The
Metropolitan Area EMS Authority Board of Directors authorized reimbursement of costs to purchase mobile devices for
use with the ImageTrend, Inc. (ImageTrend) electronic patient care reporting (ePCR) system software. MedStar Mobile
Healthcare is the trade name for Metropolitan Area EMS Authority (MAEMSA). Reimbursement was authorized for 100
devices in an amount not to exceed $130,000.00.
Further, MedStar will directly pay costs related to the initial purchase and ongoing support and maintenance of
ImageTrend, ePCR software. Use of a common software solution as our EMS provider will permit a seamless and timely
transfer of patient clinical data at the time care is transferred from Fort Worth Fire personnel to MedStar personnel.
Additionally, the utilization of the ImageTrend Fire Record Management System (RMS) product will allow for efficient
integration of EMS incident data with other incident data in a modern RMS capable of mobile data collection. The
opportunity to receive reimbursement for hardware and software costs related to this implementation enables the City to
procure a software solution that will increase efficiency and improve patient care. The Fire Department requests
authorization to purchase RMS and ePCR software, maintenance, and support from ImageTrend through a sole source
purchase agreement and authorize the execution of an Interlocal Agreement with MedStar to permit reimbursement for
related costs.
As indicated in the table below, total costs paid by the City of Fort Worth are estimated to be $165,355.00 for
implementation. These first -year costs have been budgeted in the ITS Capital Project Fund. Ongoing annual maintenance
costs in the second year will be $69,890.65 and are expected to increase 3\% annually thereafter. Maintenance costs will
be included in the General Fund budget for IT Solutions. These costs are associated with the RMS portion of the project.
Costs associated with the ePCR software will be paid by MedStar. In the first year, this totals $106,250.00 and will be paid
directly by MedStar to ImageTrend. Additionally, MedStar will reimburse the department up to $130,000 for the purchase
of 100 iPad devices for use with the ImageTrend products as indicated in the table below. The total cost of implementing
this system in the first year is estimated at up to $401,605.00. Of this, the City of Fort Worth will be responsible for
$165,355.00 with the balance paid by MedStar.
Item
First Year
100 iPad Devices
ePCR System and CAD Integration
Fort Worth Cost
$0 (after reimbursement)
MedStar Cost
Up to $130,000
$106,250.001
Elite EMS Setup $22,500.00
Data Mart One Time Fees $75,000.00
Records Management System (RMS) $34,105.00
Staffing system integration $15,000.00
DataMart License and Support $18,750.00
Total First Year Costs: $165,355.00
Up to $236,250.00
Ongoing (Year 2 and on)
ePCR System and CAD Integration
$109,437.501
Records Management System (RMS) $35,128.15
Staffing system integration $15,450.00
DataMart License and Support $19,312.50
Total Year 2 (Maintenance) Cost2: $69,890.65
$109,437.50
1lmageTrend will direct bill MedStar for these charges.
2 Ongoing charges subject to annual 3\% cost increase.
Bidding: This purchase is exempt from public bidding because it is being purchased from a sole source.
This project will serve ALL COUNCIL DISTRICTS.
FISCAL INFORMATION/CERTIFICATION:
The Director of Finance certifies that upon approval of the recommendations and execution of the agreements,
funds are available in the current operating budget and capital budget, as appropriated, of the General Fund and IT
Project Capital Fund and that reimbursement funds will be deposited into the General Fund. The Fire Department
(and Financial Management Services) is responsible for the collection and deposit of funds due to the City. Prior to
an expenditure being made, the participating department has the responsibility to validate the availability of funds.
TO
Fund
Department
Account Project
Program Activity
Budget
Reference # Amount
ID
ID
Year
(Chartfield 2)
FROM
Fund
Department
Account
Project
Program
Activity
Budget
Reference # Amount
ID
ID
Year
(Chartfield 2)
Submitted for Citv Manager's Office by:
Valerie Washington (6199)
Originating Department Head:
Additional Information Contact:
ATTACHMENTS
Jim Davis (6801)
Mark Rauscher (6803)
Addend um.CFW.ImaaeTrend.docx (CFW Internal)
ePCR Devices Medstar Approval 08 29 19.pdf (CFW Internal)
Fort Worth FD (TX) (with MedStar) - Elite EMS draft.docx (CFW Internal)
Fort Worth Fire Department (TX) - Form 1295 sianed.pdf (CFW Internal)
ImaaeTrend SAM search.PNG (CFW Internal)
Incident Software Fundina Availabilitv.docx (CFW Internal)
Interlocal Aareement.MedStarFinal.doc (CFW Internal)
iPad fundina availabilitv GF.PNG (CFW Internal)
MC361ncidentSoftwarePurchaseMedStarILAFIDtable.xlsx (CFW Internal)
RE M&C Approval 361NCIDENT SOFTWARE PURCHASE AND MEDSTAR ILA Fundina.,pdf (CFW Internal)