Document Imaging Services Agreement

Statement of Work and Scope

Tierfive will provide best practice document imaging and related services Organization (customer). Tierfive will extend comprehensive services including: secure transport and chain of custody tracking for weekly pick-up of paper records, file review, verification and reconciliation of records received, document preparation (i.e.: removal of paperclips, staples, unfold dog ears, repair tears, mounting small pages, smooth pages for clean feed) high resolution up to 300 dpi digital imaging services, electronic image enhancement, multi-level quality control, double blind data entry, data formatting, itemized compliance reporting, delivery of images, source records and corresponding indexes on WORM media, return or storage of source records and disposition via NAID guidelines with written authorization.

This Confidential Document Imaging Services Agreement (“Services Agreement”) is made by and between TIERFIVE, INC.(“Company”) and Organization (“Customer”). In consideration of the mutual covenants contained herein, Company and Customer hereby agree as follows: Both Customer and Company are a Party to this Agreement, and shall be collectively referred to as the “Parties.”

1. Obligations of Company.

1.1.    Services. Company shall provide the Services to Customer as defined within the scope of work and subject to the terms of this Agreement.  It is understood and agreed between the Parties hereto that Company will not provide any services to Customer not described in this Agreement unless defined and mutually agreed upon under separate cover.

1.2.    Limitations Company utilizes production class document scanners and industry best practices including electronic document enhancement to best ensure optimal image quality. However, we cannot guarantee the legibility of every document and assume no liability for images due to original paper condition such as but not limited to: water damage, age, dirt, fading, degradation.

1.3.    Deliverables at customer’s direction, company will either return deliverable in conjunction with original paper records or store while deliverable is verified after which time standard storage charges will be assessed. If customer requires disposition, then they will provide written authorization for documents to be destroyed in accordance with NAID guidelines. A certificate of destruction can be provided and standard service charges based upon paper volume weight will apply.

2. Obligations of Customer.

2.1.    Accessibility

(a)     ensure source records are accessible and pick-up ready (contained in boxes with lids)
(b)     designate a point of contact for communicating throughout each project or stage, execution of service agreement.
(c)     verify the quality and accuracy of the services performed
(d)     notify of any discrepancies for replacement within thirty calendar days after receiving deliverables
(e)     provide written approval for disposition of any records.

2.2.    Fees & Invoicing.

(a)     Fees. Customer shall pay related fees for services and any applicable taxes. Company may at its discretion adjust or modify the Fees or any other terms of this Agreement at any time by providing at least thirty (30) days written notice to Customer.
(b)     Invoicing. Company shall send invoices by email and/or regular mail.  Payment is due from Customer no later than thirty (30) days from the date of the invoice. All payments shall be made in U.S. Dollars. Payments shall be sent to Company’s address identified in the remittance advice section on each applicable invoice.
(c)     General Lien for Fees. The Company shall have a general lien upon any Customer Information now or hereafter released to or deposited with the Company for all Fees or other charges due, of any nature, in relation to such Customer Information or any part thereof.

3. Web Services.

3.1.    IF statement of work or addendum includes provision for company to provide services which also include the electronic delivery or accessibility of records via cloud, sftp email then those services will be delivered in accordance with current IT best practices which may include the use of SSL, strong layered encryption, 2FA logins passwords, and user session logging.

3.2.    Licensed Software. Subject to this Agreement and the terms of any software license granted by a third party to Company, Company grants and if Customer accepts then a personal, limited, non-transferable and non-exclusive right and license to use document imaging service management software (the “Licensed Software”) provided by Company as a part of the service. Customer shall not be entitled to copy such software. This license shall end when this Agreement expires or is otherwise terminated.

3.3.    Licensed Software Restrictions. Customer shall:

(a)     Allow only its own employees or agents to use or access the Licensed Software;
(b)     NOT apply any procedure or process to the Licensed Software in order to ascertain, derive, and/or appropriate for any reason or purpose, the source code for the Licensed Software or any algorithm, process, procedure or other information contained in the Licensed Software;
(c)     NOT reproduce copy, assign or transfer the Licensed Software.

3.4.   Terms of Use. The Terms of Use apply to the use of any company provided electronic services including any licensed software. Customer shall comply with the Terms of Use in all respects.

3.5.   Privacy Policy. The Privacy Policy applies to the use of any company provided electronic services including any licensed software. Customer shall comply with the Privacy Policy in all respects.

4. Ownership and Confidentiality

The ownership of the documents and delivered images for which payment has been received shall at all times remain the property of the customer. Company owners, agents, shareholders, partners and employees agree to review, examine, inspect, or obtain such information for only the purposes as described above and hold all confidential or proprietary information, trade secrets, in trust and confidence. It is also understood that customer will not disclose to 3rd party’s information about Company’s process, trade secrets, etc.

5. Business Information and Data Security Policy

Company provides secure document scanning services in an air-gapped network within a virtual environment which is purged overwritten destroyed in accordance with best practices at the end of each project. Thus, company does not archive, back-up or maintain electronic copies of customer deliverables. IF customer requires online cloud access or electronic delivery then those services would be defined under separate cover. Adherence to the terms of our standard Business Associates Agreement are part of our typical business process. IF the nature of the customers’ business requires formal execution of a BAA we are happy to cross execute that as well.

6. Downtime and Service Suspensions.

In addition to Company’s rights to terminate or suspend the Services as described elsewhere in this Agreement, Customer acknowledges that: (i) Services may be suspended for the duration of any unanticipated or unscheduled downtime or unavailability of any portion of the Services for any reason, including as the result of power outages, system failures, force majeure events as described in this Agreement or other interruptions; and (ii) Company shall also be entitled, without any liability to Customer, to suspend the Services at any time: (a) for scheduled downtime to permit Company to conduct maintenance or make modifications to any Services or computer systems; (b) in the event of an attack on Company’s computer systems or other event that Company determines, in its sole and absolute discretion, may create a risk to Company, Customer or other customers, or others; (c) in the event that Company determines that any Services are prohibited by law or Company otherwise determines that it is legally necessary or prudent to do so; or (d) in the event of an emergency as determined in Company’s sole and absolute discretion ((i) and (ii) collectively, “Service Suspensions”). Company shall have no liability whatsoever for any damage, liabilities, or loss (including any loss of data or loss of profits) that Customer may incur as a result of any Service Suspension. To the extent Company is able to do so, it will endeavor to provide Customer with email updates regarding resumption of the Services following any such suspension, but shall have no liability for any failure to do so.

7. Term and Termination.

7.1.       Term. As used throughout this Agreement, “Term” shall mean the period of time beginning on the Effective Date and ending upon the earlier of either the expiration of the Initial Term (or Renewal Term, as applicable) or the termination of the Agreement as described herein. Unless sooner terminated pursuant to this Agreement:
(a)    This Agreement shall commence on the Effective Date and shall remain in effect for a period of twelve (12) months (the “Initial Term”). Thereafter, this Agreement shall automatically renew for consecutive twelve (12) month periods (each such period a “Renewal Term”) unless and until such time as either Party hereto shall give notice to of Termination without Cause.

7.2.       Termination without Cause. Either Party may terminate the Term of this Agreement, by giving notice, not more than 60 days nor less than 30 days prior to the end of the Initial Term (or then current Renewal Term) of its intent to not renew this Agreement at the expiration of the Initial Term (or the then current Renewal Term).

7.3.       Termination for Cause by Customer. In the event of a material default by Company, Customer at its option shall have the right to terminate this Agreement by written notice to the Company unless the Company remedies the default within sixty (60) calendar days after receipt of written notice from Customer of such material default.

7.4.       Company Termination/Suspension Rights.
(a)     Company may, without notice to Customer, terminate this Agreement at any time, or terminate, suspend or block any Services at any time, if Company determines in its sole and absolute discretion that Customer has breached this Agreement, including without limitation by failing to timely pay Fees or other amounts due or required to be reimbursed, indemnified or paid under this Agreement.
(b)     In the event Customer fails to pay Fees on a timely basis, Company may terminate this Agreement on written notice to Customer.

7.5.       Upon any termination under Sections 7.2, 7.3, or 7.4, Customer shall retrieve and/or remove any Customer Information identified by Company before the earlier of (i) the end of the next succeeding calendar month or (ii) the end of the Term (“Removal Deadline”). If the Customer Information is not removed before the Removal Deadline, Company may, at Company’s option, deliver the Customer Information to Customer, delete and/or destroy it, in all events, at Customer’s expense, including without limitation, all standard service rates and/or retrieval fees.

7.6.       Effect of Termination.  Upon expiration of the Term or earlier termination, the Services will be immediately suspended.  Termination of this Agreement by either Party shall not act as a waiver of any breach of this Agreement and shall not act as a release of either Party from any liability for breach of such Party’s obligations under this Agreement. Neither Party shall be liable to the other for damages of any kind solely as a result of terminating this Agreement in accordance with its terms. Neither Party’s termination of this Agreement, nor any remedy sought by either Party in connection with this Agreement, shall prejudice any other right or remedy that such Party may have at law or in equity. No termination of this Agreement shall relieve either Party of breaches occurring prior to the effective date of such termination.  Upon termination or expiration for any reason, all Fees due to Company shall be immediately due and payable.

7.7.       Surviving Provisions and Duties. All terms and obligations of this Agreement which by their nature should survive termination or expiration of this Agreement, shall remain in effect after termination or expiration hereof, including without limitation, the terms and obligations set forth in the following sections and subsections of this Agreement: 3.1, 7, 8, 9 and 10.

8.        Warranties and Disclaimers.

8.1.    Customer Warranties.  Customer represents and warrants that:
(a)     Customer is the sole and exclusive owner, legal custodian or licensee of the Customer Information, and the information and intellectual property related thereto, has all right, title and interest in and to all Customer Information, and has the authority to provide Company with such Customer Information in accordance with the terms hereof.
(b)     The Customer Information has no commercial value and no value of any kind or nature except as waste paper or waste media products, to any person or persons.
(c)     Nothing comprising the Customer Information infringes upon the proprietary or intellectual property rights of any third party, and that Customer has secured all rights and licenses necessary for Company to perform Services, including without limitation any applicable copyrights necessary to allow Company to copy Customer Information without infringing on any proprietary or intellectual property rights of any third party.

8.2.    Warranty Disclaimer. the services are provided on an “as is” and “as available” basis. company does not make and, to the fullest extent permissible under applicable law, company expressly disclaims, and customer hereby waives, all warranties, guarantees and representations, express, implied, statutory or otherwise, including, but not limited to, all warranties, guarantees or representations:
(a)     of performance, merchantability, fitness for a particular purpose, accuracy, completeness, or timeliness,
(b)     that the services, website or data related thereto, or business records, company’s systems, hardware, software, data or networks will be secure, complete, accurate, bug- or error-free; that defects will be corrected, or that the services, data related thereto, or company’s systems, hardware, software, data or networks are free of viruses, malicious code, bugs or other harmful components.
(c)     that the company’s buildings are fireproof or waterproof, or that the contents of said buildings, including the customer information, cannot be damaged or destroyed by fire or water, and
(d)     of hipaa compliance.

9.        Indemnification.

9.1.    Customer agrees to indemnify, defend and hold harmless Company and its affiliates, subsidiaries, and permitted successors and assigns, and the officers, directors, employees, and agents of the Company, and its affiliates, subsidiaries, and permitted successors and assigns (all of whom, individually and collectively, the “Indemnitee”), from and against any and all actual or threatened claims, losses, demands, liabilities, damages, settlements, fines, penalties, expenses and costs (including without limitation reasonable attorneys’ fees and costs), arising from, in connection with, or based on allegations of, any:
(a)     claims by the Customer’s employees, agents or subcontractors;
(b)     personal/bodily injury or property damage that arises from the acts or omissions of the Customer, its employees, agents or subcontractors;
(c)     any breach of Customer’s agreements, representations, warranties or other obligations under this Agreement;
(d)     infringement, misappropriation or violation of any patent, copyright, trademark, trade secret, publicity right, privacy right or other proprietary rights, intellectual property right or other rights of any third party;
(e)     inaccurate, incomplete, damaged, lost, out-of-date or uncorrected Customer information;
(f)      defamation or violation of any right to privacy or publicity of a third party; and
(g)     possession or retention of any Customer information by Company.

All such claims, demands, etc., shall be referred to in this Section by the term “Claim” or “Claims.”

9.2.    From the first notification of the Claim and thereafter, Customer shall pay for the defense of the Indemnitee against the entire Claim by legal counsel. Such legal counsel shall be selected by Customer or Customer’s insurance company covering such claim, provided such legal counsel is approved by Indemnitee. In the event that Customer does not unconditionally and immediately indemnify the Indemnitee with respect to any Claim, the Indemnitee shall have the right, without waiving any other right or remedy otherwise available to the Indemnitee, to adjudicate or settle any such Claim in its sole discretion and at Customer’s sole expense.

9.3.    Customer shall not be obligated to indemnify Indemnitee for Claims arising from Indemnitee’s gross negligence or willful misconduct, but shall defend all such Indemnitees until and unless there is a final judicial or arbitral determination of such Indemnitee’s gross negligence or willful misconduct.

9.4.    Company shall provide the Customer with reasonable notice of any matter (including without limitation, claims, lawsuits, proceedings and actions) for which indemnification is sought; provided, however, that the failure to give such notice shall not relieve Customer of its obligations hereunder.

9.5.    Customer shall not enter into a settlement of or compromise any such matter without Company’s prior written consent or without an unconditional release of Company and its affiliates, subsidiaries, successors and assigns (and its and their owners, agents, offices, directors, employees, sublicenses, customers and agents).

9.6.    If any action is instituted by Indemnitee to enforce any provision of this indemnity, the Indemnitee shall be entitled to recover its attorneys’ fees, costs and expenses in any such action. Customer shall be liable and shall promptly reimburse Company upon demand for costs of suit and attorney fees in the event of any suit or adverse claims by or against Company, or interpleader, involving title, ownership, rights or possession of the Customer Information or intellectual property related thereto, or charges for services rendered.

10.      Limitation of Liability.

10.1. In no event shall Company be liable to Customer for any loss, damage, corruption, harm, delay or injury of any kind caused by any flood, riot, fire, judicial or governmental action, quarantine, act of military authority, electrical, Internet or telecommunications failure or delay, poor or non-performance of Customer or a third party performing Services, embargo, blockage, labor disputes, act of God, act of terrorism, acts of war, hostilities (whether war is declared or not) or any causes beyond the control of Company, deterioration, insects or vermin, leakage, heat, pilferage, theft, or sprinkler leakage or discharge. Customer shall be solely responsible and liable for the accuracy and completeness of Customer Information, including without limitation the accuracy and completeness of any information contained in such Customer Information or electronic files resulting from the Services.

10.2. It is agreed that the Customer Information, and media containing such Customer Information, from time to time, shall be moved, handled, processed, packed, unpacked, transmitted, delivered to or retained by the Company, or returned, transmitted or delivered to the Customer, at Customer’s sole risk and liability. Customer agrees that Company is not liable for any minor wear or damage to Customer Information: (i) arising out of Company’s transportation or preparation of Customer Information or Services, including without limitation, any wear or damage caused by removal of staples, paperclips, binders or other fastening device, or by folding or unfolding of documents to enable such documents to be fed into automatic document feeders or scanners; (ii) arising out of any imaging process, including without limitation any wear or damage caused by documents moving through an automatic document feeder or scanner; or (iii) arising out of loss or damage to such media.

10.3. Company shall not be liable for any loss, damage or delay in Services or Customer Information unless such loss, damage or delay is caused by Company’s gross negligence or willful misconduct.

10.4. In no event shall Company be liable for indirect, consequential, exemplary, punitive, multiple, incidental or special damages, however caused, whether in contract, tort, statute or any other theory of liability, even if Company has been advised of the possibility of such damages.

10.5. The foregoing exclusions and exculpations (Sections 10.1, 10.2, 10.3 and 10.4) include without limitation, loss, damage or delay relating in any way to the inability of Customer to access or use Customer Information; actual or alleged interruption, slow down, failure, delay or inaccessibility of Company’s systems, hardware, software, data or networks; security breach; damage to property; fines or penalties of any origin; lost profits, business or anticipated savings; work stoppage; personal injury, death or emotional distress; unauthorized access or use of the Company’s systems, hardware, software, data or networks; loss of use; business interruption; costs or procurement of any substitute goods, services or software; loss of business records; any corrupted, inaccurate, damaged, lost, incomplete or out-of-date business records; or any

10.6. As volume context for and requirements of source media is variable Company’s base price schedule for Services is based, in part, upon a declared value of the tangible Customer Information as declared herein by Customer, regardless of the actual value, whether known or unknown to Company. For purposes of this Agreement, unless otherwise expressly provided, the rate for Services is based upon Customer’s declared value, which is hereby agreed to be EIGHT DOLLARS (8$) PER POUND, which shall be the value of all tangible Customer Information for all purposes and in no event shall Company’s liability, if any, for loss, damage, or delay of any nature, exceed such declared value. For purposes of this Agreement to determine said value, an average weight of the tangible Customer Information shall govern and it is agreed that such average weight shall be a minimum and computed on the following basis:
(a)     Standard File Containers, 15″ x 12″ x 10″ at thirty (30) pounds each container;
(b)     Letter Size transfer files at fifty-five (55) pounds each container;
(c)     Legal Size transfer files at sixty (60) pounds each container;
(d)     Irregular containers at twenty-five (25) pounds per cubic foot; and
(e)     Any other container or file at a weight to be determined in Company’s sole and absolute discretion.

Where tangible Customer Information is retained on a container basis, the declared value of the container shall apply pro rata by weight in the event of partial loss or destruction of a container or its contents.

10.7. In no event shall the Company’s aggregate liability to the Customer arising out of or related to this Agreement or otherwise, whether in contract, tort, statute or any other theory of liability, exceed the lesser of ten thousand U.S. Dollars ($10,000.00) or the amount of fees actually paid directly by Customer to Company under this Agreement during the first six (6) months after the effective date of this Agreement. These limited liabilities are the Customer’s sole and exclusive remedies.

10.8. Customer agrees and acknowledges that the foregoing limitations of liability are an essential and bargained-for part of this Agreement and are essential factors in establishing the fees with respect to this Agreement.

11.      Timeliness of Claims

Any and all claims for loss, damage or delay with respect to Customer Information are waived, relinquished and discharged unless made in full compliance with the following requirements:

11.1.       Any such claim must be made in writing within the earliest to occur of (i) thirty (30) days after the Customer Information is delivered to Customer; or (ii) thirty (30) days after Company notifies Customer that a requested delivery of Customer Information cannot be made or that Customer Information has been lost, damaged or destroyed; or (iii) sixty (60) days after the date of any Customer request for delivery which Company has not satisfied.

11.2.       No action or arbitration may be maintained by the Customer or others against the Company for loss, damage or injury to Customer Information unless
(i) timely written notice of a claim has been given as provided in Section 10.1 and
(ii) such action is commenced within one year after the giving of a timely written notice under Section 10.1.

12.      General Provisions

12.1.       Waiver. Except as expressly provided in Section 10:

No failure or delay by either Party in exercising any right under this Agreement shall constitute a waiver of that right.  No waiver of any term, provision or condition of this Agreement, whether by conduct or otherwise, in any one or more instances, shall be deemed to be, or shall constitute, a waiver of any other term, provision or condition hereof, whether or not similar, nor shall such waiver constitute a continuing waiver of any such term, provision or condition hereof. No waiver shall be binding unless executed in writing by the Party making the waiver.

12.2.       Severability. If any provision of this Agreement is determined to be illegal or unenforceable by any court or arbitrator of competent jurisdiction, then such provision will be enforced to the maximum extent possible and the other provisions will remain fully effective and enforceable.

12.3.       No Benefit to Others. The representations, warranties, covenants, and agreements contained in this Agreement are for the sole benefit of the Parties and their respective heirs, executors, administrators, successors and permitted assigns, and they are not to be construed as conferring any rights on any other persons.  It is not the intention of this Agreement or of the Parties hereto to confer a third party beneficiary right of action upon any third party or entity whatsoever.  This Agreement shall be binding and inure to the benefit of the heirs, executors, administrators, successors and permitted assigns of the Customer and the Company.

12.4.       Relationship of the Parties. This Agreement does not create a partnership, franchise, agency, joint venture, fiduciary, or employment relationship between the Customer and Company. Neither Party, nor their agents, has any authority of any kind to bind the other Party in any respect whatsoever.

12.5.       Dispute Resolution. Any and all disputes arising out of or in connection with the subject matter of this agreement and any and all actions to enforce or interpret this Agreement or any of the terms hereof, including the determination of the scope or applicability of this agreement to arbitrate shall be submitted to binding arbitration before JAMS in Los Angeles, California, under its Comprehensive Arbitration Rules (JAMS Expedited Procedures shall not apply).  The proceedings shall be conducted before a single arbitrator.  The prevailing party shall be entitled, in addition to other relief, to an award of reasonable attorneys’ fees and costs. The losing party shall also pay all arbitration fees and arbitrator compensation and the arbitrator shall not allocate such fees or compensation. JAMS Optional Appeal Procedure shall apply. The parties hereby waive any and all other means of dispute resolution, including, without limitation, civil trial. Notwithstanding the foregoing, Owner and Indemnitee shall be free at all times to seek any and all available legal or equitable provisional remedies including, without limitation, restraining orders, injunctions, pre-judgment attachment and writs of possession from any court of competent jurisdiction. Further, nothing herein shall be deemed to restrict or in any way limit any of Company’s or Indemnitee’s applicable rights to exercise its “self-help” rights.

12.6.       Recovery of Attorney’s Fees and Legal Costs. In the event of any arbitration or action arising out of or relating to this Agreement, or the breach, termination, enforcement, interpretation or validity thereof, the prevailing Party shall be awarded, in addition to any other relief, its reasonable attorney’s fees and legal costs.

12.7.       Applicable Law, Jurisdiction and Forum Selection. This Agreement and its interpretation shall be governed by the law of the State of California, including its substantive law of contracts, without regard to conflicts of law provisions.

12.8.       Entire Agreement; Amendments. This Document Imaging Services Agreement, and all exhibits and order forms related hereto, constitute the entire agreement between the Parties as to its subject matter, and supersede all previous and contemporaneous agreements, proposals or representations, written or oral, concerning the subject matter of this Agreement. This Agreement may not be modified, amended or supplemented except by a writing signed by both the Customer and the Company. All order forms and the Terms of Use and Privacy Policy related to this Agreement are incorporated into and made part of this Agreement.

12.9.       Communications and Notices. All notices shall be in writing and delivered personally, properly mailed via certified or registered mail, return receipt requested, sent by facsimile transmission, or sent by nationally-recognized, private industry express courier service, to the addresses of the Parties set forth at the beginning of this Agreement or the facsimile numbers below (collectively “addresses”). Customer may change these addresses for purposes of notices under this Agreement only by providing Company with prior written notice of the change of address; provided, that such address shall not be considered changed for purposes of this Agreement until Company provides Customer with a written notice acknowledging Customer’s change of address. Any notice shall be deemed to be properly given: (a) when delivered personally; (b) when sent by facsimile, with written confirmation of receipt by the sending facsimile machine; (c) five (5) business days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (d) two (2) business days after deposit with a private industry express courier, with written confirmation of receipt.

12.10.     Headers and Titles. Headers and titles to the various sections and subsections of this Agreement are intended for the convenience of the reader and shall not control over the actual text of a given section or subsection.

12.11.     Draftsman. The Parties acknowledge that each has had access to independent legal counsel prior to entering into this Agreement and has actively participated in drafting this Agreement. In no event shall the rule of construction against a person causing an uncertainty to exist, including California Civil Code Section 1654, be applied in construing or interpreting this Agreement.

12.12.     Execution. The Parties agree that individuals named below their respective entities are authorized to enter into, execute and deliver this Agreement in the name and on behalf of their respective entities upon the terms and conditions as outlined herein. This Agreement may be executed in counterparts and by facsimile signature or by scanned signature sent by email. A facsimile or scanned signature shall be deemed to be a valid and binding original signature.

12.13.     Taxes. The Fees shall not be deemed to include, and Customer will be responsible for, all taxes, duties or other governmental charges (collectively “taxes”) levied against or imposed upon Company as a result of the provision of Services or any activities associated with or otherwise arising out of this Agreement.

By signing to accept the terms of this agreement; signer authorizes this purchase and receipt of consideration or goods or services as described above. The signer also warrants that he/she has the authority to bind purchasing company to these terms.

Signature Imaging Services Agreement
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