Terms and Conditions of Colorectal Cancer Screening Education Program
Updated April 16, 2025
1. Definitions.
a. “Affiliate” means, with respect to a specified entity, any other entity that, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, the specified entity. For purposes of this definition, “control” means the possession, direct or indirect, of the power to cause the direction of the management and policies of the applicable entity, whether through ownership of fifty percent (50%) or more of the voting securities of such entity, by contract or otherwise.
b. “Business Purpose” means providing the Services as specified in Exhibit A.
c. “Data Protection Laws” means all applicable laws, regulations, and other binding obligations that govern the Processing of Personal Data. Data Protection Laws include, without limitation, the California Consumer Privacy Act (Cal. Civ. Code §§ 1798.100-1798.199) as amended from time to time, together with any regulations or other guidance issued by the California Attorney General’s office related to the statute, collectively (the “CCPA”), and any other relevant state privacy or data protection laws; the Health Insurance Portability and Accountability Act of 1996, Pub. L. 104-191, as amended (“HIPAA”); and the European Union General Data Protection Regulation, Regulation 2016/679 and any applicable European Union or European Union member state law, regulation, or ordinance relating to data protection or the privacy of individuals.
d. “Deliverables” means goods, materials, and work product contemplated by the Services that are set forth as deliverables in a statement of work between Exact Sciences and ImageMover.
e. “Exact Sciences” means Exact Sciences Corporation.
f. “ImageMover Data” means electronic data or information (i) provided by ImageMover to Customer or (ii) Processed by Customer on ImageMover’s behalf, including without limitation, ImageMover’s Confidential Information and Personal Data and that of its customers, including Exact Sciences, provided, however, that Personal Data incorporated into a healthcare provider’s medical record or created or maintained on behalf of a healthcare provider is not ImageMover Data.
g. “Personal Data” means any information that identifies, relates to, describes, is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular individual or household. Personal Data includes but is not limited to: (i) all government-issued identification numbers, (ii) all financial account numbers (including payment card information and health insurance numbers), (iii) individual medical records and protected health information, and (iv) any information otherwise defined as “personal information”, “personal data”, “protected health information” or “nonpublic personal information” under applicable Data Protection Laws. As used in this Agreement, references to Personal Data shall be limited to that Personal Data that Customer Processes under this Agreement, including in connection with the provision Services for or on behalf of ImageMover and its customers.
h. “Process” means any operation or set of operations which is performed on Personal Data or on sets of Personal Data, whether or not by automated means, such as accessing, collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
i. “Services” means the services set forth in Exhibit A.
2. Customer Representations and Warranties.
a. Customer represents and warrants that (a) it shall, and shall cause its representatives and personnel to, provide the Services (i) in accordance with the terms and conditions set forth this Agreement, (ii) using personnel of required skill, experience, and qualifications, (iii) in a timely, workmanlike, and professional manner, (iv) in accordance with generally recognized industry standards in Customer’s field and (v) to the reasonable satisfaction of ImageMover and (b) it has not entered, and shall not enter, into any agreements with any third parties that contain obligations that conflict with Customer’s obligations hereunder.
b. Customer represents and warrants that it will not subcontract any of the Services to a third party other than an Affiliate without the express written consent of ImageMover.
c. Customer represents and warrants that during the term of this Agreement and a period of two (2) years after its termination, Customer shall not solicit, induce, or attempt to influence Exact Sciences to terminate its contractual arrangement with ImageMover or to work directly with Customer for any services arrangement similar to the Services.
d. Customer represents and warrants that it has all necessary licenses to perform the Services and provide the Deliverables.
e. Customer represents and warrants that it has obtained and will maintain throughout the Term all third-party permissions, rights, and consents required to perform the Services and provide the Deliverables to ImageMover.
3. Termination. Because ImageMover is a contractor of Exact Sciences for the Colorectal Cancer Screening Education Program, engaging Customer as a subcontractor, Services under this Agreement can be terminated without cause by ImageMover if the program is terminated by Exact Sciences by giving Customer at least 25 days’ advance written notice.
4. Intellectual Property. Except to the extent Deliverables incorporate ImageMover background intellectual property, all rights, title, and interest in and to the Deliverables, and all intellectual property rights therein, including any moral rights, shall be owned solely and exclusively by Exact Sciences. Customer agrees to, and hereby does, assign, and agrees to cause each other person or entity having any rights therein to assign, to Exact Sciences, without any further consideration and free from any claim, lien for balance due, or rights of retention thereto on the part of Customer, all rights, title and interests throughout the world in and to all such Deliverables immediately upon their creation. Customer agrees that all such Deliverables that are copyrightable shall constitute “works made for hire” under the copyright laws of the United States and, as such, acknowledges that Exact Sciences is the author of such Deliverables and owns all of the rights comprised in the copyright of such Deliverables. Customer agrees to perform or cause to be performed, at its expense, all acts reasonably deemed necessary or desirable by Exact Sciences to effectuate the intent of this Section. Without limiting the foregoing obligations, if any rights to the Deliverables are not assigned to Exact Sciences, Customer unconditionally and irrevocably: (a) waives, or agrees to cause the waiver of, the enforcement of such rights; and (b) grants to, or agrees to obtain for, Exact Sciences during the term of such rights an exclusive, irrevocable, perpetual, worldwide, royalty-free license to reproduce, create derivative works of, distribute, publicly perform and publicly display such Deliverables, by all means now known or later developed, with the right to sublicense such rights through multiple levels of sublicenses.
5. Compliance Requirements.
a. Each party represents and warrants that it will comply with any applicable laws, rules, ordinances, regulations, decrees and orders of any governmental authority, including, without limitation, any privacy and data security laws, anti-corruption and bribery laws, export and import laws, and communications common carrier tariffs, and all other applicable health care laws and regulation (collectively, the “Laws”).
b. Customer, and its employees, contractors, and agents, shall not use Exact Sciences’ Confidential Information for personal financial gain, such as for purposes of stock trading, or for any other purpose other than in the performance of Services, including the delivery of Deliverables, as required by this Agreement. Customer shall not, and shall not permit any of its employees, representatives, personnel, or agents to, engage in any transaction with respect to securities of Exact Sciences at any time if, at the time of such transaction, Customer or such employee, representative, personnel, or agent (as applicable) is aware of any material non-public Confidential Information relating to Exact Sciences or its securities. Customer, and its employees, contractors, and agents, shall comply with the Exact Sciences’ Insider Trading Policy, to the extent it is applicable (which is available at this link: https://exactsciences.box.com/s/y28idd8vj2v38d52ppx9u9ki62u5tze3).
c. Customer acknowledges and agrees that, pursuant to the Defend Trade Secrets Act of 2016, Customer may not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that is made (a) in confidence to a Federal, State, or local government official or to an attorney solely for the purpose of reporting or investigating a suspected violation of law; or (b) in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. If Customer files a lawsuit for retaliation by ImageMover for reporting a suspected violation of law, Customer may disclose the trade secret to its attorney and may use the trade secret information in the court proceeding, if: (i) Customer files the document containing the trade secret under seal; and (ii) Customer does not disclose the trade secret, except pursuant to court order.
d. Each party represents and warrants that it will comply with its Code of Ethics, which for ImageMover means the Advanced Medical Technology Association (“AdvaMed”) Code of Ethics, which can be found at http://www.advamed.org, and represents that it is aware of the Code of Ethics for AdvaMed and agrees that its employees and representatives shall comply with such Code of Ethics.
e. If applicable, each party represents and warrants that it will comply with the Physician Payments Sunshine Act (42 U.S.C. 1320a-7h) and its implementing regulations, and comparable state laws that require medical device manufacturers to adhere to compliance standards when marketing their products, implement compliance standards or certifications, and track and report payments or other transfers of value to health care professionals.
f. Customer represents and warrants that neither it nor any of its representatives, personnel, or agents performing any Services or other obligations of Customer hereunder are or have ever been sanctioned, suspended, excluded or debarred from participation in any federal or state government-funded health care or reimbursement program, (b) there are no pending or threatened exclusion actions against it and (c) it will notify ImageMover within two (2) business days if it or any such representatives, personnel, or agents performing any Services is sanctioned, suspended, excluded or debarred from participation in any government-funded health care or reimbursement program.
g. Customer represents and warrants that it will ensure that all individuals and entities engaged to perform services for and/or on behalf of ImageMover are screened against each of the following lists prior to engaging their services: (i) the HHS/OIG List of Excluded Individuals/Entities (available through the Internet at https://oig.hhs.gov/exclusions/); (ii) the System for Award Management (SAM) database (available through the Internet at https://www.sam.gov/SAM/; and (iii) the FDA Debarment List (available through the Internet at https://www.fda.gov/inspections-compliance-enforcement-and-criminal-investigations/compliance-actions-and-activities/fda-debarment-list-drug-product-applications).
h. Customer represents and warrants that it will require all prospective and current individuals and/or entities to disclose immediately any debarment, exclusion, suspension or other event that would make that person or entity otherwise meet the criteria defined in (d) above.
i. Customer represents and warrants that it has, and will comply with, its own internal policies and procedures, including, but not limited to, codes of conduct and ethics.
j. Each party further agrees to notify the other party immediately upon receiving any notice with respect to a violation or alleged violation of any of the above-mentioned Laws and any other laws or regulations, to the extent relating to this Agreement, the Services, or Deliverables. Each party reserves the right to take all actions, including immediate termination of this Agreement that it believes necessary to comply with applicable laws, if any violation is not cured within thirty (30) days after the breaching party receives written notice of such violation from the other party.
6. Data Requirements.
a. Customer represents and warrants that no protected health information, as defined in applicable Data Protection Laws (“PHI”) shall be transferred to, or accessed by, persons, entities or other third parties physically located outside the territorial boundaries of the United States of America (each an “Offshore Resource”). Accordingly, in no event shall Customer directly or indirectly (a) transfer to any Offshore Resource any PHI received or accessed by Customer pursuant to this Agreement or (b) allow any Offshore Resource to access (whether by remote access, VPN or otherwise) any PHI received or accessed by Customer pursuant to this Agreement.
b. Customer shall comply with all Data Protection Laws applicable to its Processing of Personal Data under this Agreement. All Personal Data that is ImageMover Data disclosed by ImageMover or collected by Customer on behalf of ImageMover shall be Processed solely for a specified Business Purpose, as described in this Agreement. Customer shall not (i) Process Personal Data that is ImageMover Data for any purpose other than for the specific purpose of performing the Services for ImageMover as specified in this Agreement, or as otherwise explicitly permitted by applicable Data Protection Laws in each case in accordance with ImageMover’s written instructions as set forth in this Agreement; (ii) disclose Personal Data that is ImageMover Data to any person other than Customer personnel who need to know such information provided that Customer remains responsible for the confidentiality of the information; (iii) sell, share (especially for purposes of targeted advertising), rent, lease, disseminate, make available, transfer, or otherwise communicate by any means Personal Data that is ImageMover Data for monetary or other valuable consideration, unless directed to do so in writing by ImageMover; (iv) Process Personal Data that is ImageMover Data outside of the direct relationship with ImageMover; or (v) combine Personal Data that is ImageMover Data with the personal data it receives from or on behalf of any other party. Customer acknowledges that in performing the Services under this Agreement it shall act as the “processor,” “business associate,” “service Customer” or “licensee” as those terms may be defined under applicable Data Protection Laws.
c. Customer certifies that it understands the restrictions set forth herein and under Data Protection Laws and will comply with them. Customer agrees to immediately notify ImageMover in writing if it can no longer comply with Data Protection Laws or its obligations under this Agreement with respect to the Processing of Personal Data. Customer agrees that ImageMover may take reasonable and appropriate steps to ensure that Customer Processes Personal Data in a manner consistent with Data Protection Laws. Customer hereby grants ImageMover the right, upon notice, to take reasonable and appropriate steps to stop and remediate any unauthorized use of Personal Data.
d. Customer shall provide all assistance reasonably necessary to enable ImageMover and its customers, including Exact Sciences, to comply with its obligations under Data Protection Laws, including, but not limited to, requirements to appropriately protect the privacy and security of Personal Data, conduct data protection impact assessments or consult with regulatory authorities.
e. Taking into account the state of the art, implementation costs, the nature of the ImageMover Data or Personal Data, and Processing risks, Customer shall implement and maintain reasonable and appropriate technical and organizational measures to protect ImageMover Data or Personal Data against accidental or unlawful destruction, loss, alteration, disclosure, unauthorized access, or other compromise of ImageMover Data or Personal Data (collectively, “Data Security Program”). Customer shall ensure that all employees, representatives, personnel, and agents of Customer comply with the applicable safeguards that govern the Services in the Data Security Program. The Data Security Program must: (i) meet current best industry standards; (ii) comply with all applicable Data Protection Laws; (iii) to the extent applicable, comply with the Payment Card Industry Data Security Standards (PCI DSS); and (iv) comply with the ISO 27000, NIST 800-53, CIS top 20 or HITRUST security standard. Customer shall document its Data Security Program in written form and shall make those documents available to ImageMover for review upon ImageMover’s request. Customer shall keep its Data Security Program current and up-to-date and shall regularly test, assess, evaluate, and improve the Data Security Program, but in no event render the Data Security Program less comprehensive, secure or robust. Any material decrease in the security safeguards shall be reported to ImageMover without delay. Customer bears full responsibility for the security of all ImageMover Data and Processing of Personal Data.
f. Customer shall, without undue delay, and in any event within one (1) business day, notify ImageMover if it receives any request from an individual concerning the Processing of Personal Data that is ImageMover Data, including a request to access, delete, and/or obtain a portable copy of their Personal Data that is ImageMover Data (a “Consumer Rights Request”). Customer shall not respond to any Consumer Rights Request unless and until expressly instructed to do so in writing by ImageMover. ImageMover will inform Customer of any Consumer Rights Request related to the Personal Data that requires Customer’s compliance or assistance. Upon notice to Customer from ImageMover, Customer will cooperate with ImageMover, and promptly (and in any event within three (3) business days following notice by ImageMover) provide any information and documents requested by ImageMover to respond to a Consumer Rights Request. Customer shall provide all reasonable assistance to ImageMover, to ensure ImageMover and its customers, including Exact Sciences, are compliant with their obligations to respond to Consumer Rights Requests under applicable Data Protection Law. Customer shall immediately inform ImageMover, in writing, if it is unable to respond to, or assist with, a Consumer Rights Request as directed by ImageMover. In such case, Customer shall provide a detailed explanation as to why Customer considers compliance with the request or instructions to be unlawful or otherwise impossible.
g. Customer shall make available to ImageMover all information necessary for Customer to demonstrate compliance with its obligations under this Agreement and Data Protection Laws. Customer agrees to cooperate with any reasonable and appropriate audits, inspections, or other steps that ImageMover deems reasonably necessary to confirm that Customer Processes ImageMover Data or Personal Data in a manner consistent with ImageMover’s obligations under applicable Data Protection Law, including without limitation, through measures such as ongoing manual reviews, automated scans, and regular assessments, audits, or other technical and operational testing at least once every twelve (12) months. Specifically, and without limiting the foregoing, Customer agrees to allow, and cooperate with, reasonable assessments by ImageMover or ImageMover’s designated assessor.
h. If Customer is required by law to disclose Personal Data to law enforcement or government authorities, Customer shall notify ImageMover in writing and liaise with ImageMover before complying with such disclosure request. If Customer, either directly or indirectly, receives any communication from any regulator, data protection authority, or other public authority (a “Regulator”) relating to Personal Data, Customer shall provide a copy to ImageMover within two (2) business days. ImageMover shall be responsible for all communications with Regulators that relate to Personal Data. Customer shall not respond to any communication from a Regulator relating to Personal Data without the express permission of ImageMover. Customer shall work in full cooperation with ImageMover on any permitted response(s) to Regulators without unreasonable delay.
7. Indemnification. Customer shall indemnify, defend and hold harmless ImageMover and its customers and their respective Affiliates, directors, officers, employees, agents, and representatives (each being a “ImageMover Indemnified Party”), from and against any and all losses, costs, expenses, actions, claims, proceedings, damages and liabilities (collectively, “Liabilities”) claimed by a third party to relate to or arise, out of (a) Customer’s negligence or willful misconduct in the performance of the Services, including Customer’s provision of the Deliverables, (b) infringement or misappropriation of third party intellectual property rights arising from the Services, provided that ImageMover has complied with the terms of this Agreement; (c) a Data Breach, or (d) Customer’s breach of this Agreement or the Subcontractor Business Associate Agreement entered in connection herewith, except to the extent also arising out of ImageMover’s negligence, willful misconduct, or breach of this Agreement. Customer shall reimburse the ImageMover Indemnified Party for all reasonable costs and expenses (including reasonable attorneys’ fees and expenses) as they are incurred in connection with the investigation of, preparation for or defense of any pending or threatened claim for which the ImageMover Indemnified Party would be entitled to indemnification under the terms of this Agreement, or any action or proceeding arising therefrom. An ImageMover Indemnified Party may, at its own expense, retain separate counsel in any action, claim, or proceeding in which it is, or is reasonably likely to become, a party. Customer shall not, without the prior written consent of each applicable ImageMover Indemnified Party, settle, compromise or consent to the entry of any judgment in any pending or threatened claim, action or proceeding indemnifiable hereunder unless such settlement, compromise or consent (a) requires only the payment of money, which will be satisfied in its entirety by Customer, (b) contains no finding or admission of any violation of law by any ImageMover Indemnified Party and (c) includes an unconditional release of each ImageMover Indemnified Party to which indemnification is owed from all liability arising or that may arise out of such claim, action or proceeding.
8. Insurance. During the Term of this Agreement and for three (3) years after termination, Customer shall obtain and maintain, at its own expense, the following insurance coverage purchased from a company or companies rated A-VI or better by AM Best and licensed to do business in the state(s) in which the Services are to be performed.
a. Commercial General Liability insurance written on an occurrence form and provides coverage for liabilities arising out of premises, operations, independent contractors, products, completed operations, personal & advertising injury, and liability assumed under an insured contract with limits of at least $1,000,000 per occurrence and $2,000,000 aggregate. This policy shall be endorsed to waive subrogation in favor of ImageMover.
b. Workers’ Compensation insurance that satisfies all state statutory requirements and limits in which the work is performed. Policy shall contain Employer’s Liability coverage with limits of at least $1,000,000 per person per accident. This policy shall be endorsed to waive subrogation in favor of ImageMover.
c. Commercial Automobile Liability insurance if the use of motor vehicles is required hereunder, with limits of at least $1,000,000 combined single limit per occurrence covering owned, hired, and non-owned vehicles.
d. Professional Liability (Errors & Omissions) insurance with limits of at least $5,000,000 per occurrence and aggregate. If this policy is written on a claims-made basis, such insurance shall continue through the Term and contain a retroactive date back to the date of, or prior to, the inception of this Agreement.
e. Umbrella insurance with limits of at least $4,000,000 per occurrence and aggregate providing excess follow-form coverage to the Commercial General Liability, Employer’s Liability, and Automobile Liability policies.
f. Cyber Liability insurance with limits of at least $5,000,000 per claim and aggregate with coverage sufficiently broad enough to respond to the duties and obligations defined in this Agreement, including, but not limited to, damage of electronic information, information theft, release of personally identifiable information (PII) or PHI, extortion, network security, and privacy liability. This policy shall include breach response coverage with a sublimit of at least $1,000,000 per claim.
g. An umbrella and/or excess liability policy may be used to meet the minimum liability requirements, provided that the coverage is written on a follow-form basis.
h. Customer shall name ImageMover, and their respective directors, officers, employees, agents, and representatives, as additional insureds on the Commercial General Liability, Automobile Liability, Umbrella, and Cyber Liability policies. These policies shall not contain any cross suits exclusions where a claim of one insured against another insured is excluded from coverage. The required insurance coverages shall be written on a primary/non-contributory basis to any other insurance.
i. Customer shall furnish ImageMover with a current certificate of insurance evidencing the coverage listed above. Customer’s insurance carriers shall give ImageMover thirty (30) days’ prior written notice of cancellation or material changes to such insurance. If any of the policies in this Section must be renewed during the Term in order to remain effective, Customer shall provide evidence of such renewal a minimum of thirty (30) days prior to expiration of the policy.
9. Miscellaneous.
a. ImageMover and Customer shall perform all obligations under this Agreement as independent contractors, and nothing contained herein will be deemed to create a partnership, or relationship of principal and agent, between the parties hereto.
b. This Agreement, including, without limitation, questions with respect to its execution, validity, interpretation, or performance and the rights and liabilities of the parties, shall be governed by, and construed in accordance with, the laws of the State of Wisconsin, without giving effect to the doctrine of conflict of laws or any rule of construction or interpretation based upon which party drafted this Agreement.
c. Customer and ImageMover submit to the exclusive, mandatory jurisdiction and venue of any state or federal court sitting in Dane County, Wisconsin, in any action or proceeding arising out of or relating to this Agreement and agree that all claims in respect of the action or proceeding will be heard and determined in any such court. Each party also agrees not to bring any action or proceeding arising out of or relating to this Agreement in any other court. Each party waives any objection which it may now or hereafter have to the laying of the venue of any such proceeding brought in such a court and any claim that any such proceeding brought in such a court has been brought in an inconvenient forum. Notwithstanding the foregoing, either party may seek injunctive relief in any court of competent jurisdiction for (a) any dispute regarding ongoing or future misuse of Confidential Information or misappropriation of a party’s intellectual property rights, (b) to preserve the status quo pending the outcome of any proceeding described in this Section or (c) to prevent the expiration of applicable statutes of limitation. Each party waives any bond, surety, or other security that might be required of a party with respect to any proceeding permitted by this Section.
d. Customer shall not refer to ImageMover or any of its Affiliates or customers in any media form, including, without limitation, in any advertising, publicity release, sales pitch or presentation, whether orally or in writing, without ImageMover’s prior written approval. Such reference would include, but not be limited to, a general reference or a specific reference to the name of ImageMover or that the Services were provided to or on behalf of ImageMover.Contact Us
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