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HomeMy WebLinkAbout20-0923 ImagetrendVIA E-MAIL Date: To: From: Subject: City of Elgin September 23, 2020 Dan Rink, Assistant Fire Chief Michael R. Gehrman, Assistant Corporation Counsel Purchase Agreement with Imagetrend Memorandum Attached pursuant to your request please find an agreement which I have renegotiated, redrafted, and had signed by Imagetrend. You should be sure to review the terms of the agreement, particularly as to price and materials to confirm that it conforms to your wishes and understanding. Once signed, you should return the signed agreement to Dylan Murphy at dmurphy@imagetrend.com, and provide a copy to Kim Dewis for her records. MRG/vlm Attachment cc: Christopher J. Beck (via e-mail w/attachment) Approved: W William A. Cogley LICENSE SUBSCRIPTION AGREEMENT THIS AGREEMENT is hereby made and entered into this day of , 2020, by and between the City of Elgin, Illinois, a municipal corporation (hereinafter referred to as "City") and ImageTrend, Inc., a Minnesota corporation, (hereinafter referred to as "Image Trend" or "Seller"). WHEREAS, ImageTrend is currently a provider of data management services and a current Business Associate to the City and the City wishes to permit ImageTrend to create a de -identified set of City's current and future data. This Agreement hereby expands the scope of permissible data use in all Agreements between Parties. 1. CONTRACTUAL RELATIONSHIP. City and ImageTrend mutually agree to establish a contractual relationship between the City and ImageTrend, Inc. based on the terms first established between Advocate Health Care Good Samaritan ("System Administrator") and ImageTrend #2140 ("Master Contract"). 2. PURPOSE. The purpose of this Agreement is to procure the following items as outlined in the Price Sheet attached hereto and made a part hereof as Attachment A. The good delivery date or service period(s) will begin on the date of the last signature hereto ("the Effective Date"). 3. MASTER AGREEMENT INCORPORATED BY REFERENCE. The body of the Master Contract (e.g. excluding the attachments and exhibits) is hereby incorporated by reference as the terms for this Agreement. The attachments and exhibits to this Agreement replace the exhibits and attachments of the Master Contract, for purposes of this Agreement. Where the System Administrator's name appears in the Master Contract, for purposes of this Agreement, all instances are replaced with City as detailed in this Agreement. The attachments and exhibits to this Agreement, 'and the incorporated body of the Prime Contract as detailed in this section, form the complete Agreement between the Parties related to the topics herein. 4. SYSTEM ADMINISTRATOR'S RIGHTS. To the degree this Agreement is made with the City to use functionality or make decisions regarding the modification, disposition, operation, usage, or non -usage of goods or services originally procured for the City by System Administrator or other party to the Master Agreement (e.g. System Administrator's ImageTrend provided software systems), the City's rights are subordinate to those of the parties to the Master Contract. To the degree the City's requests require modification or otherwise impact the parties to the Prime Contract, the City must seek and obtain written permission from the affected parties in the Prime Contract (i.e. System Administrator). Should System Administrator deny this permission, ImageTrend may rightfully withhold performance under this Agreement to the extent it is not permitted by System Administrator, or not permitted by law or regulation in ImageTrend's sole interpretation. City is advised ImageTrend is a Business Associate and/or under data confidentiality provisions to the System Administrator and has duties under HIPAA and other data privacy laws which may not be waived or modified without System Administrator's written consent. 5. OUT OF SCOPE. Any service or good not described herein is out -of -scope. Out of Scope custom software development is $175.00/hour. and performed only under mutually agreed upon Statement of Work. Other goods and services are available via separate quote from ImageTrend. 6. PURCHASE. City shall purchase, and Image Trend shall sell the goods and/or services described in Attachment A attached hereto and made a part hereof. 7. TERMS. This agreement shall be subject to the price, terms and conditions contained herein and as provided in Attachment A. 8. CONFLICT. In the event of any conflict between the terms and provisions of this purchase agreement and Attachment A or the Master Agreement, the terms and provisions of this license agreement shall supersede and control. In the event of a conflict between Attachment A and the Master Agreement, the terms and provisions of Attachment A shall supersede and control. 9. LAW/VENUE. This agreement is subject to and governed by the laws of the State of Illinois. Venue for the resolution of any disputes or the enforcement of any rights arising out of or in connection with this agreement shall be solely in the Circuit Court of Kane County, Illinois. ImageTrend hereby irrevocably consents to the jurisdiction of the Circuit Court of Kane County, Illinois for the enforcement of any rights, the resolution of any disputes and/or for the purposes of any lawsuit brought pursuant to this agreement or the subject matter hereof; and ImageTrend agrees that service by first class U.S. mail to ImageTrend, Inc., 20855 Kensington Blvd., Lakeville, Minnesota 55044 shall constitute effective service. Elgin agrees that service by first class U.S. mail to City of Elgin, 150 Dexter Court, Elgin, IL 60120 shall constitute effective service. Both parties hereto waive any rights to a jury. This agreement and the enforcement thereof shall not be subject to arbitration. Notwithstanding anything to the contrary in any attachment hereto, this agreement is subject to and governed by the laws of the State of Illinois. 10. NO MODIFICATION. There shall be no modification of this agreement, except in writing and executed with the same formalities as the original. 11. MERGER. This agreement embodies the whole agreement of the parties regarding the subject matter hereof. There are no promises, terms, conditions or obligations other than those contained herein regarding the subject matter hereof, and this agreement shall supersede, supplant and replace all previous communications, representations or agreements, either verbal, written or implied between the parties hereto regarding the subject matter hereof. 12. INTEREST. ImageTrend hereby waives any and all claims or rights to interest on money claimed to be due pursuant to this agreement, and waives any and all such rights to interest to which it may otherwise be entitled pursuant to law, including, but not limited to, pursuant to the Local Government Prompt Payment Act (50 ILCS 50511, et seq.), as amended, or the Illinois Interest Act (815 ILCS 205/1, et seq.), as amended. The provisions of this paragraph shall survive any expiration, completion and/or termination of this agreement. 13. SEVERABILITY. The terms of this agreement shall be severable. In the event any of the terms or the provisions of this agreement are deemed to be void or otherwise unenforceable for any reason, the remainder of this agreement shall remain in full force and effect. 14. COMPLIANCE WITH LAW. Notwithstanding any other provision of this agreement, it is expressly agreed and understood that in connection with the performance of this agreement, ImageTrend shall comply with all applicable federal, state, city and other requirements of law, including, but not limited to, any applicable requirements regarding prevailing wages, minimum N wage, workplace safety and legal status of employees. Without limiting the foregoing, ImageTrend hereby certifies, represents and warrants to the City that all of ImageTrend's employees and/or agents who will be providing products and/or services with respect to this agreement shall be legally authorized to work in the United States. ImageTrend shall also, at its expense, secure all permits and licenses, pay all charges and fees, and give all notices necessary and incident to the due and lawful prosecution of the work, and/or the products and/or services to be provided for in this agreement. The City shall have the right to audit any records in the possession or control of ImageTrend to determine ImageTrend's compliance with the provisions of this section. In the event the City proceeds with such an audit, ImageTrend shall make available to the City ImageTrend's relevant records at no cost to the City. City shall pay any and all costs associated with any such audit. 15. PAYMENT. City shall pay the total sum of $3,500 within thirty (30) days of delivery and any other full performance, or city's receipt of invoice, whichever is later. The aforementioned total sum is inclusive of all applicable freight, .shipping and taxes. 16. TERM. This agreement shall commence upon execution of this agreement and shall terminate one year following execution. 17. LIMITATION OF DAMAGES. In no event shall either party hereto be liable for any monetary damages in excess of the purchase price contemplated by this agreement. In no event shall either party hereto be liable for any consequential, special or punitive damages, or any damages resulting from loss of profit. 18. OWNERSHIP AND USE OF DATA. Notwithstanding anything to the contrary provided for herein, the City shall retain exclusive ownership .of all City generated and/or supplied data. In no event shall such City related data or information be used by ImageTrend without the prior written consent of the City. ImageTrend shall not sell the City's Data, nor sell the De -Identified Data, in a stand-alone fashion unconnected with other products, services, reports, or analysis. ImageTrend shall not use or disclose the City's Data, except as permitted by this Agreement. The purpose of this Agreement is to enable ImageTrend to conduct analysis across multiple Data Controllers; this will allow ImageTrend to provide comparative reporting. For example, cross - jurisdiction benchmarking of `lights and sirens' to on -scene time, and cross jurisdiction benchmarking of provider administration of naloxone. ImageTrend may create a de -identified data set of the City's data ("the De -identified Data Set"). City hereby grants ImageTrend: i. A non-exclusive perpetual, and revocable license to use, reproduce, display, make and distribute .derivative or collective works of and otherwise use the City's data, including the right to compile the data over time or combine it with other data sources and expose it to machine learning algorithms; and to create derivatives and/or collections thereof, and to license and sell De -Identified Data reports, services or analytics products as ImageTrend may develop pursuant to this Agreement. Nothing in this Agreement changes or is intended to change the fact that the City retains all ownership rights in the City's Data and ImageTrend acquires no right, title, or interest except those rights, licenses, and interests expressly provided for in this Agreement. ii. ImageTrend shall create the De -identified Data Set in accordance with the then current HIPAA Safe Harbor Rule at 45 CFR § 164.514(2)(i) by removing the 18 listed data elements, and any additional data element designated as `Personal Information' by State and Local data breach law (or equivalent laws). ImageTrend shall ensure its methods for creating the De -identified Data Set comport with industry best practices and guidance such as NISTIR 8053 `De -Identification of Personal Information' (available at httl2:Hdx.doi.org/10.6028/NIST.IR.8053). ImageTrend shall use reasonable administrative, technical, and physical safeguards to protect and prevent unauthorized disclosure of the De - identified Data Set. iii. City may terminate or revoke the right to transmit or disclose data granted to ImageTrend by this Agreement at any time by providing reasonable written notice to ImageTrend and providing a commercially reasonable period of time in which to effect the termination. 19. INDEMNIFICATION. To the fullest extent permitted by law, each party hereto shall indemnify and hold harmless each other, their officers, employees, boards and commissions, from and against any and all claims, suits, judgments, costs, excluding attorney's fees, damages or any and all other relief or liability arising out of or resulting from or through or alleged to arise out of any acts or negligent acts or omissions of either party hereto or their officers, employees, agents or subcontractors in the performance of this agreement, including but not limited to, all goods delivered or services or work performed hereunder. In the event of any action against either party hereto, their officers, employees, agents, boards or commissions covered by the foregoing duty to indemnify and hold harmless, such action shall be defended by legal counsel of each party's choosing at each party's own sole cost. 20. EXECUTION. This agreement may be executed in counterparts, each of which shall be an original and all of which shall constitute one and the same agreement. For the purposes of executing this agreement, any signed copy of this agreement transmitted by fax machine or e-mail shall be treated in all manners and respects as an original document. The signature of any party on a copy of this agreement transmitted by fax machine or e-mail shall be considered for these purposes as an original signature and shall have the same legal effect as an original signature. Any such faxed or e-mailed copy of this agreement shall be considered to have the same binding legal effect as an original document. At the request of either party any fax or e-mail copy of this agreement shall be re -executed by the parties in an original form. No party to this agreement shall raise the use of fax machine or e-mail as a defense to this agreement and shall forever waive such defense. IMAGETREND Jo pp.Grave(Sep 23,202009:00 CDT) Signature President Title F:1Legal DeptUgreementUrnageTrend Agr-8-19-20.docx 4 ATTACHMENT A PRICE SHEET AND WORK ORDER ATTACHMENT The prices below are based on the following SaaS transaction volumes, as provided by Client: 8,700 Incidents annually Recurring Fees Description CAD Distribution New World / Tyler Technologies Send Invoices To: Dan Rink rink — d@ cityofe Ig i n. org 550 ummit St. Elgin, Illinois 60120 Payment Terms: -- -e- __- ELT.002.007.017 $0.00 I Total Recurring Fees: $3,500.00 TOTAL YEAR 1: $3,500.00 1. "Recurring Fees" are annual fees which recur each year. They are due on each anniversary of the fee, with the start date beginning upon completion as specified by the Milestone terms below. The Recurring Fees will escalate in price annually by 3% beginning on 08/04/2021 and each year thereafter. 2. ImageTrend may temporarily suspend performance (e.g. cease to provide access, hosting, support) due to Client's breach of contract provided Client shall have 30 days to cure such breach before ImageTrend may suspend performance. 3. ImageTrend may charge to Client a late fee of 1.5% per month, or the highest rate allowed under the law, whichever is lower, on any overdue amounts. Client also agrees ImageTrend may charge to Client all reasonable costs and expenses of collection, including attorneys' fees where, in ImageTrend's discretion, payments are consistently deficient or late. 4. All Annual SaaS Fees are based upon anticipated transaction volumes (as provided by Client) and are subject to an annual usage audit. ImageTrend reserves the right to increase fees in accordance with increased transaction volume per the Unit Price listed in the tables above. 5. ImageTrend will not be responsible for third -party fees related to this Agreement unless specifically outlined by this Agreement MILESTONE 1 Contract Signature. This Contract Signature Milestone is complete when all parties to this Agreement have signed and executed this Agreement, regardless of whether any activity has occurred or any deliverable has been provided to Client by ImageTrend. CAD Distribution $3,500.00 1 $3,500.00 New World / Tyler Technologies $0.00 1 $0.00