ImageMover Data Hosting Agreement

Last Updated August 26, 2022

This Data Hosting Hosting Agreement (collectively this “Hosting Agreement”), is a binding agreement between ImageMoverMD, Inc., a Wisconsin corporation (“ImageMover”), maintaining an address at 2858 University Ave #265, Madison, WI 53705, and the person or entity identified on the Order Form as the licensee of the Software (“Customer”).

1. Definitions. The definitions of capitalized terms are set forth in this Section 1, and as elsewhere provided in this Hosting Agreement or the Test Kit End User Software License Agreement between Customer and ImageMover (“EULA”).

“Customer Data” means Personal Information, other information, data and other content, in any form or medium, that is collected or received directly by Customer or an Authorized User by or through the Licensed Software. Customer Data does not include Transaction Data or De-identified Data.

“Customer Systems” means the Customer’s information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by Customer or through the use of third-party services.  

“Data Subject” means an individual who is the subject of Personal Information that is Processed in accordance with this Agreement. 

“De-identified Data” means any information, including Customer Data or data derived from Customer Data, from which Personal Information has been removed such that it cannot reasonably be used, alone or in combination with other information, to identify, describe, or be linked to a particular  individual or Customer from where the data was derived.

“Hosted Data” means Customer Data and Processed Customer Data. 

“Hosting Services” means ImageMover’s storage and hosting of Hosted Data, pursuant to the terms of this Hosting Agreement. 

“ImageMover Systems” means the information technology infrastructure used by or on behalf of ImageMover in performing the Services, including all computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by ImageMover or through the use of third-party services.

“Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree or other requirement of any federal, state, province/territory, local or foreign government or political subdivision thereof, or any arbitrator, court or tribunal of competent jurisdiction. 

“Licensed Software” or “Software” means the software programs licensed to Customer under the EULA.  

“Losses” means any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys’ fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance provider. 

“Order Form” means the order form filled out and submitted by or on behalf of Customer with either ImageMover or a reseller authorized by ImageMover, for Customer’s purchase of the license for the Software granted under the EULA.

“Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association or other entity.

“Personal Information” means information that relates to an individual person and identifies or can be reasonably used to identify the particular individual alone or when combined with other personal or identifying information that is or can be associated with that specific individual.

“Process” or “Processing” or “Processed” means any Customer Data entered by the Customer or an Authorized User using the Licensed Software and converted as part of a deliverable feature of the Licensed Software and either transmitted by ImageMover Systems to the Customer Systems or hosted by ImageMover as part of the Hosting Services. 

“Service(s)” means any Processing done by ImageMover Systems including the Processing of a single test result using the Software from each Test Kit unit purchased by Customer, each a “Service Unit”.

 “Transaction Data” means data collected related to the Processing of the Customer Data, but not including the Customer Data.  Transaction Data includes, the date and time of the Processing of the Customer Data, and the identity of the Customer and/or Authorized User that submitted the Customer Data for Processing.

2. Hosting Services.

2.1 Hosting Services.  ImageMover will provide the Hosting Services for the Term of this Hosting Agreement. 

2.2 Access to Hosting Services.  Customer shall have access to the Hosted Data during the Term of the Hosting Agreement through use of the Licensed Software that has been licensed to the Customer pursuant to the EULA. 

2.3 Availability of Hosting Services.  ImageMover shall use commercially reasonable efforts to provide access to the Hosting Services during the Term, but provides no guarantees or warranties that the Hosting Services will be available 24 hours a day, seven days a week, and the Customer acknowledges and agrees that the Hosting Services may be inaccessible from time to time for scheduled Hosting Services downtime; degradation due to a Force Majeure Event; or other circumstances beyond ImageMover’s reasonable control, including Customer’s or any Authorized User’s misuse of the Licensed Software, or use of the Licensed Software other than in compliance with the express terms of the EULA; and any suspension or termination of Customer’s or any Authorized Users’ access to or use of the Licensed Software as permitted by the EULA.

3. ImageMover Security and Data Responsibility.

3.1 ImageMover Systems and Security Obligations.  ImageMover will employ security measures in accordance with applicable standard industry practices and in compliance with all Laws.  ImageMover does not promise that the Hosting Services will be uninterrupted, error-free, or completely secure.  Customers acknowledge that there are risks inherent in Internet connectivity that could result in the loss of the Hosted Data and/or its privacy and confidentiality.  

3.2 Data Breach.  If ImageMover becomes aware of any unauthorized third-party access to the Hosted Data requiring notification or reporting under any applicable Law, it will promptly notify Customer of such data breach and cooperate with Customer in providing information necessary for Customer to fulfill its notification and reporting obligations.  

3.3 Customer Control and Responsibility.  Customer has and will retain sole responsibility for: (a) all content and use of Hosted Data; (b) all information, instructions and materials provided by or on behalf of Customer or any Authorized User in connection with the Hosting Services; (c) Customer Systems; and (d) all access to and use of the Hosting Services directly or indirectly by or through the Customer Systems, with or without Customer’s knowledge or consent, including all results obtained from, and all conclusions, decisions and actions based on, such access or use.  

3.4 Customer Access and Security.  Customer shall employ all physical, administrative and technical controls, screening and security procedures and other safeguards necessary to: (a) securely administer the distribution and use of the Hosting Services and reasonably protect against any unauthorized access to or use of the Hosting Services; and (b) control the content and use of the Hosting Data.

3.5 Privacy.  All use by ImageMover of the Hosted Data will be subject to the Privacy Policy located at https://www.imagemovermd.com/test-result-privacy-policy.  Customer must use all Hosted Data in compliance with all applicable privacy laws, including the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), the Personal Information Protection and Electronic Documents Act (Canada) (“PIPEDA”) and applicable provincial privacy statutes including those related to personal health information (collectively, “Privacy Laws”), and ImageMover will not be responsible or liable for any use by the Customer of the Hosted Data. Customer will not instruct ImageMover to Process, use or disclose Personal Information in any manner that would not be permissible under applicable Privacy Laws if done by the Customer.

3.6 ImageMover is acting in the capacity as a service provider to Customer in the Processing of Personal Information of Data Subjects as part of the Hosting Services.  Customer retains control of the Personal Information and remains solely responsible for its compliance obligations under applicable Privacy Laws, including providing any required notices to and obtaining any required consents from Data Subjects with respect to the Personal Information Processed by ImageMover, and for the Processing instructions it provides to ImageMover.  Customer will notify ImageMover of any changes in, or revocation of, the consent by a Data Subject for the collection, use or disclose his or her Personal Information, to the extent that such changes or revocation may affect ImageMover’s Processing of such Personal Information in accordance with this Hosting Agreement. 

3.7 ImageMover will attempt to host Personal Information in the country in which Customer is located.  Customer, however, acknowledges that the Licensed Software may be hosted on Amazon Web Services and may store Personal Information in a U.S.-based cloud service and that to the extent ImageMover does so, such arrangement is a fundamental condition of this Hosting Agreement.  Customer is responsible for providing the appropriate notices to, or obtaining the requisite consents from, Data Subjects as required under Privacy Laws for the transfer of Personal Information outside the jurisdiction in which it was collected, where applicable. Customer will notify ImageMover of any data localization requirement or restriction on the transfer of Personal Information to the extent that such requirement or restriction may affect ImageMover’s Processing of such Personal Information in accordance with this Hosting Agreement. If Privacy Laws restrict the cross-border or trans-border transfer of Personal Information, Customer shall only transfer Personal Information to ImageMover if (a) Customer has obtained valid consent under Privacy Laws from the Data Subject to such transfer, or (b) the transfer otherwise complies with the Privacy Laws.

3.8 Customer will ensure that its Authorized Users are aware of and adhere to the terms and conditions of this Hosting Agreement.  Customer will control the use by its Authorized Users of the Licensed Software and Services, including by restricting access of Authorized Users to the Licensed Software and the Services, if Customer has revoked the authorization of such individual or such individual’s relationship with Customer has been suspended or terminated.

4. Term and Termination.

4.1 Term.  Unless terminated pursuant to the terms of this Hosting Agreement, the Hosting Agreement will be in effect for the term of the EULA (the “Term”).

4.2 Termination.  In addition to any other express termination right set forth elsewhere in this Hosting Agreement:

(a) ImageMover may terminate this Hosting Agreement for any reason upon providing Customer six (6) months written notice.  

(b) ImageMover may terminate this Hosting Agreement with fifteen (15) days written notice if the Customer is in breach of this Hosting Agreement and has not cured such breach within that time.  

(c) This Agreement will terminate automatically upon the termination of the EULA.  

4.3 Effect of Expiration or Termination.  On the expiration or earlier termination of this Hosting Agreement:

(a) ImageMover will have no obligation to retain the Hosted Data for a period longer than six (6) months from the termination of the Hosting Agreement. 

(b) ImageMover will provide such assistance as is reasonably requested by the Customer to transfer the Hosted Data to another host, subject to payment of the ImageMover’s expenses reasonably incurred with such a transfer.

4.4 Surviving Terms.  The provisions set forth in the following sections, and any other right or obligation of the parties in this Hosting Agreement that, by its nature, should survive termination or expiration of this Hosting Agreement, will survive any expiration or termination of this Hosting Agreement: Section 4.3 (Effect of Expiration and Termination), this Section 4.4 (Surviving Terms), Section 5 (Representations and Warranties), Section 6 (Limitations of Liability) and Section 8 (Miscellaneous).

5. Representations and Warranties.

5.1 Each of the parties warrants to the other that it has full power and authority to enter into and perform this agreement.

5.2 ImageMover shall perform the Hosting Services with reasonable care and skill.

5.3 This Hosting Agreement sets out the full extent of ImageMover’s obligations and liabilities in respect of the supply of the Hosting Services.  All conditions, warranties or other terms concerning the Hosting Services which might otherwise be implied into this agreement or any collateral contract (whether by statute or otherwise) are hereby expressly excluded.

6. Limitations of Liability.

6.1 EXCLUSION OF DAMAGES.  IN NO EVENT WILL IMAGEMOVER OR ANY OF ITS LICENSORS, SERVICE PROVIDERS OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE OR PROFIT OR DIMINUTION IN VALUE; (b) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION OR DELAY OF THE HOSTING SERVICES, (c) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY, OR (d) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

6.2 CAP ON MONETARY LIABILITY.  IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF IMAGEMOVER AND ITS AFFILIATES, LICENSORS, SERVICE PROVIDERS AND SUPPLIERS UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, EXCEED THE AGGREGATE AMOUNTS OF FEES PAID PURSUANT TO THE ORDER FORM IN THE THREE (3) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. 

6.3 IN NO EVENT WILL IMAGEMOVER BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR, AND CUSTOMER AGREES TO HOLD IMAGEMOVER HARMLESS FROM, ANY DAMAGES THAT RESULT FROM CUSTOMER’S USE OF ANY HOSTED DATA.

7. Force Majeure.

7.1 No Breach or Default.  In no event will ImageMover be liable or responsible to Customer, or be deemed to have defaulted under or breached this Hosting Agreement, for any failure or delay in fulfilling or performing any term of this Hosting Agreement, when and to the extent such failure or delay is caused by any circumstances beyond ImageMover’s reasonable control (a “Force Majeure Event”), including acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades in effect on or after the date of this Hosting Agreement, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of Law or any action taken by a governmental or public authority, including imposing an embargo, export or import restriction, quota or other restriction or prohibition or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation.  Either party may terminate this Hosting Agreement if a Force Majeure Event continues substantially uninterrupted for a period of thirty (30) days or more.

8. Miscellaneous.

8.1 Relationship of the Parties.  The relationship between the parties is that of independent contractors.  Nothing contained in this Hosting Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.

8.2 Entire Agreement.  This Hosting Agreement, together with the EULA any other documents incorporated into the EULA by reference, constitutes the sole and entire agreement of the parties with respect to the subject matter of this Hosting Agreement and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter. 

8.3 Assignment.  Customer shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Hosting Agreement, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without ImageMover’s prior written consent.  No delegation or other transfer will relieve Customer of any of its obligations or performance under this Hosting Agreement.  Any purported assignment, delegation or transfer in violation of this Section 8.3 is void.  This Hosting Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.

8.4 Amendment and Modification; Waiver.  No amendment to or modification of this Hosting Agreement is effective unless it is in writing and signed by an authorized representative of each party.  No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving.  Except as otherwise set forth in this Hosting Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Hosting Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

8.5 Severability.  If any provision of this Hosting Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Hosting Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.  Upon such determination that any term or other provision is invalid, illegal or unenforceable, the parties hereto shall negotiate in good faith to modify this Hosting Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

8.6 Governing Law; Submission to Jurisdiction.  This Hosting Agreement is governed by and construed in accordance with the internal laws of the State of Wisconsin without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Wisconsin.  Any legal suit, action or proceeding arising out of or related to this Hosting Agreement or the licenses granted hereunder shall be instituted exclusively in the federal courts of the United States or the courts of the State of Wisconsin in each case located in the city of Madison, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.  Service of process, summons, notice or other document by mail to such party’s address set forth on the Order Form shall be effective service of process for any suit, action or other proceeding brought in any such court. 

8.7 Language of Agreement.  The Parties have agreed that this contract and all related documents be drafted in English. Les parties aux présentes ont demandé et convenu que le présent contrat et tout document y afférent soient rédigés en anglais.