R2022-095 2022-05-09RESOLUTION NO. R2022-95
A Resolution of the City Council of the City of Pearland, Texas, authorizing the
City Manager or his designee to enter into an Interlocal Agreement with the
City of Round Rock for the cooperative purchase of a department records
management system from ESO, Inc., in the estimated amount of $101,000.00.
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PEARLAND, TEXAS:
Section 1. That certain Interlocal Agreement by and between the City of Pearland and
the City of Round Rock, Texas, a copy of which is attached hereto as Exhibit “A” and made a part
hereof for all purposes, is hereby authorized and approved.
Section 2. That the City Manager or his designee is hereby authorized to execute and
the City Secretary to attest an Interlocal Agreement with the City of Round Rock, Texas.
Section 3. That the City Manager or his designee is hereby authorized to execute a
contract with ESO, Inc., for the purchase of a department records management system.
PASSED, APPROVED and ADOPTED this the 9th day of May, A.D., 2022.
________________________________
J.KEVIN COLE
MAYOR
ATTEST:
________________________________
LESLIE CRITTENDEN
CITY SECRETARY
APPROVED AS TO FORM:
________________________________
DARRIN M. COKER
CITY ATTORNEY
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INTERLOCAL AGREEMENT
BETWEEN THE CITY OF PEARLAND,TX AND
CITY OF ROUND ROCK, TX
This Agreement made this day of March 2022, between the City of
Pearland, Texas, a home-rule municipal corporation located in Brazona County
("Pearland"), Texas and City of Round Rock, Texas a home-rule municipal corporation
located in Williamson County ("Round Rock, TX").
Pursuant to the authority granted by the Texas Interlocal Cooperation Act (Tex
Gov't Code Ann §791,001, et seq) providing for the cooperation between local
governmental bodies, and pursuant to Subchapter F entitled "Cooperative Purchasing
Program" containing Sections 271 101 and 271 102 of the Texas Local Government
Code, the parties hereto, in consideration of the premises and mutual promises contained
herein agree to as follows,
WHEREAS,the contract is made under the authority of Section 791 .001-791 029 of the
Texas Government Code, and,
WHEREAS, the parties, in performing governmental functions or in paying for the
performance of government functions hereunder shall make that performance or those
payments from current revenues legally available to that party;
WHEREAS,the governing bodies of each party find that the subject of this contract is
necessary for the benefit of the public and that each party has the legal authority to
perform and to provide the governmental function or service which is the subject matter
of this contract, furthermore, the governing bodies find that the performance of this
contract is in the common interest of both parties, and that the division of cost fairly
compensates the performing party for the service performed under this contract
I
Each party hereby makes, constitutes and appoints the other party its true and
lawful purchasing agent for the purchase of various commodities using Annual Contracts
(Bids) Each party will maintain a listing of Annual Contracts which are available for the
other party's use To utilize one or more of these contracts, each party must request
authorization, in writing, to the other party. Upon receipt of request, the receiving party
will forward a copy of the appropriate Annual Contract to the requesting entity Each
party agrees that the bidding shall be conducted by the other party according to its usual
bidding procedures and in accordance with applicable State statues
II.
Each party agrees that all specifications for selected items shall be as determined
by the other party
4866-3068-3149/ss2
1
Neither Pearland nor Round Rock shall assume any responsibility or liability to
pay for matenals purchased or services performed for the benefit of the other entity. In
obtaining the services of Contractor through Pearland, Round Rock has relied solely on
its own inspections, investigations and due diligence regarding the services and Round
Rock acknowledges that Pearland has made no representations or warranties expressed or
implied with respect to the services to be rendered
III
Each party agrees to pay the supplier for all goods, equipment and products
pursuant to this agreement The successful bidder or bidders shall bill each respective
party directly for all items purchased and each party shall be responsible for vendor's
compliance with all conditions of delivery and quality of the purchased items
IV.
This Agreement shall be in effect from and after the March, 2022, the date
of execution until terminated by either party to the agreement
CITY OF PEARLAND CITY OF ROUND ROCK
By By.
ay Pears n City Manager Cra _ or g, Mayor
ATT . ATTEST
oan, City Secretary Meagan Spink City Cle _
0 51•a Ceviirrivibl
APPROVED AS TO FORM APPR V D AS T FORM.
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Darrm Coker, City Attorney Step L. Sheets, City Attorney
2
Mayor Councilmembers City Manager
Craig Morgan Michelle Ly Laurie Hadley
Matthew Baker
Frank Ortega
ROUND ROCK TEXAS Mayor Pro-Tem Kristin Stevens City Attorney
ADMINISTRATION Rene Flores Hilda Montgomery Stephan L Sheets
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March 30, 2022 S
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City of Pearland �d
Attn• Clay Pearson A/` �„✓��
3519 Liberty Drive r'UI
Pearland, TX 77581
Dear Mr. Pearson:
On March 24, 2022 the Round Rock City Council approved Resolution No R-2022-092 which approved an
Interlocal Agreement for participation in a cooperative purchasing program.
Enclosed are two originals Please sign both, keep one for your files, and return the second one to me at.
City of Round Rock
Attn• Davetta Edwards
Deputy City Clerk—3rd Floor
Round Rock, TX 78664
If you have any questions, please contact Susan Morgan, Finance Director at (512) 218-5431.
Sincerely, 64E
VAA5 14--
Davetta Edwards
Deputy City Clerk
cc R-2022-092
CITY OF ROUND ROCK 221 East Main Street, Round Rock,Texas 78664
[P] 512 218 5401 .[F] 512 218 7097.roundrocktexas gov
Please fill in your contact information below:
Name Email Phone
Primary Business
Contact
Invoicing Contact
Legal Contact
Software Administrator
Contact
Privacy HIPAA Contact
Tax Exempt YES OR NO If YES, return Exempt Certificate with
Agreement
Purchase Order
Required?
YES OR NO If YES, return PO with Agreement
DocuSign Envelope ID: C6CC23C3-630D-4D6E-8C23-72CADF4A217C
Darrin Coker
cburt@pearlandtx.
gov
X
713-248-5427
Justin Arnold jarnold@pearlandt
x.gov
X
Curtis Burt
281.997.4349
281.924.5387
dmcghinnis@pearla
ndtx.gov
Efuentes@pearland
tx.gov
Daniel McGhinnis
Eliana Fuentes
Vendor
Contact
ESO Solutions, INC
Joanna
PO Box 679449
Dallas, TX 75267-9449
Deliver by
Ship Via
Freight Terms
05/18/22
Eliana Fuentes
3519 Liberty Drive
PEARLAND, TX 77581
Accounts Payable
P.O. Box 2719
Pearland, TX 77588-2719
accountspayable@pearlandtx.gov
Reprint Purchase Order
Originator
Ship ToBill To
No. 2022-00001447
Resolution Number R2022-95
City of Pearland
Special Instructions
Vendor No.10578
Quantity U/M Description Unit Cost Total Cost
1.0000 EACH Computer - Software Purchase $66,141.0000 $66,141.00
Total Due $66,141.00
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Purchase Order Terms & Conditions
1. Acceptance: Acceptance of this order must be without qualifications. Buyer hereby objects to and will not be
bound by any different or additional terms and conditions contained in the acceptance unless each such different or
additional term is expressly agreed to in writing by city. Vendor’s action in (a) accepting this order, (b) delivering
materials, or (c) performing services called for hereunder shall constitute an acceptance of terms and conditions
below on this order.
2. Contractual Relationship: Vendor shall perform the work described independently and not as an employee of the
city. The city has no right to supervise, direct, or control the Vendor or the Vendor’s officers or employees in the
means, methods, or details of the work to be performed by Vendor. The city and Vendor agree that the work
performed is not inherently dangerous, that Vendor will perform the work in a workmanlike manner, and that Vendor
will take proper care and precautions to ensure the safety of Vendor’s officers and employees.
3. Insurance: All insurance requirements applicable shall be fulfilled prior to the issuance of this Purchase Order.
Vendor is responsible for keeping required insurance current until service is complete.
4. Packing Slips or other suitable shipping documents shall accompany each shipment and shall show:
Vendor company name and address
Name and address of the city department to which the shipment is being made
City Purchase Order number
Descriptive information as to the items delivered, including quantity and part numbers
5. Invoices for payment shall be addressed to City of Pearland and submitted to the e-mail address reflected in the
Bill To field of this Purchase Order (preferred), and shall reference this Purchase Order number. If impracticable for
Vendor to email, hard-copy invoice may be submitted to Accounts Payable, P.O. Box 2719, Pearland, Texas 77588-
2719, and shall reference this Purchase Order number. Payment will be made within 30 days of invoice date or
satisfactory delivery of the product or service, whichever is later, provided that all other requirements as detailed in
the contract have been fulfilled.
6. Taxes: This Purchase Order, when properly executed by the city, serves as a tax exemption certificate in that the
City, as a municipality, claims an exemption from payment of taxes (under Texas Tax Code Section 151.309). These
taxes must not be included on invoice.
7. Payment: All payments to be made by the City to Vendor, including the time of payment and the payment of
interest on overdue amounts, are subject to the applicable provisions of Chapter 2251 of the Texas Government
Code.
8. Changes / Quantities: No changes may be made to this order without written authorization from a City
Purchasing representative. Exact quantities ordered should be shipped, except in instances where this is impractical
such as material in bulk, uneven lengths, etc., in which case nearest amount available and not exceeding specified
quantity is acceptable.
9. Quality Control: Goods supplied as a result of this Purchase Order shall be subject to approval as to quality and
must conform to the highest standards of manufacturing practice. Items found defective or not meeting specifications
shall be replaced at the Vendor’s expense within a reasonable period of time. Payment for defective goods or goods
failing to meet specifications is not due until 30 days after satisfactory replacement has been made.
10. Warranty: Vendor shall warrant that all items or services shall conform to the proposed specifications and all
warranties as stated in the Uniform Commercial Code and be free from all defects in material, workmanship and title.
11. Warranty – Product: Vendor shall not limit or exclude any implied warranties and any attempt to do so shall
render this contract voidable at the option of the City. Vendor warrants that the goods provided hereto will conform to
all specifications, drawings and/or descriptions of any City solicitation for bid resulting in this order.
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12. Patents: Upon acceptance of this order, Vendor agrees to protect the city from any claim involving patent right
infringements, copyrights, or sale franchises.
13. Shipping: All prices must be F.O.B. destination. No boxing or packing charges will be allowed by city unless
specifically authorized on the face of this order.
14. Risk of Loss: Risk of loss, damage, or destruction of materials covered by this order, regardless of F.O.B. point,
shall be and remain with the Vendor until the goods are delivered to the destination set out in the order and accepted
by the city or city’s nominee.
15. Deliveries: Delivery shall not be made to any place other than the destination indicated on this Purchase Order,
except as subsequently stated in writing by authorized City Purchasing personnel, on a date prior to shipment by the
Vendor.
16. Cancellations: The city reserves the right to cancel purchase orders for failure on the part of the Vendor to
deliver as promised, or within a reasonable time if no delivery commitment is made, unless acceptable notification of
delay is given to the city by the Vendor.
17. Liability: Any person, firm or corporation performing services pursuant to this Purchase Order shall be liable for
all damages incurred while in performance of such services. Vendor assumes full responsibility for the work to be
performed hereunder, and hereby releases, relinquishes, and discharges the city, its officers, agents, and
employees, from all claims, demands, and causes of action of every kind and character including the cost of defense
thereof, for any injury to, including death of, any person whether that person be a third person, vendor, or an
employee of either parties hereto, and any loss of or damage to property, whether the same be that of either of the
parties hereto or of third parties, caused by or alleged to be caused by, arising out of or in connection with the
issuance of this order to vendor, whether or not said claims, demands and causes of action in whole or in part are
covered by insurance. Certificate of Insurance may be required for but not limited to Commercial General Liability,
Commercial Auto Liability, Workers Compensation, and Professional Liability Insurance.
18. Personal Interest in City Contracts: Vendor agrees to comply with the Personal Interest In City Contracts
provision of the Pearland City Charter, Section 10.07 latest amendment which states “Personal interest in city
contracts or any other actual or potential conflicts of interest shall be governed by applicable state law, including
Texas Local Government Code Chapter 171.” Vendor agrees to maintain current, updated disclosure of information
on file with the City Purchasing Department as appropriate throughout the term of this contract.
19. Conflict of Interest (Chapter 176 of Texas Local Government Code): By doing business or seeking to do
business with the city, Vendor acknowledges that they understand and accept the requirements of Chapter 176 of the
Texas Local Government Code and that they are solely responsible for compliance. Vendor may register and post
their Conflict of Interest questionnaires online by visiting the Supplier Registration page located on the City of
Pearland’s website, http://pearlandtx.gov/
20. Applicable Law: This Purchase Order shall be interpreted and enforced according to the provisions of the State
of Texas Law, and Vendor shall abide by, and be in compliance with, all applicable laws, statutes, ordinances, and
regulations.
21. Venue: Both parties agree that venue for any litigation arising from this contract shall lie in Pearland, Brazoria
County, Texas.
22. Arrears in Taxes: City shall be entitled to counterclaim and offset against any debt, claim, demand or account
owed by the City to any person, firm or corporation who is in arrears to the City of Pearland for taxes, in the amount
of taxes so in arrears, and no assignment or transfer of such debt, claim, demand or account after the said taxes are
due shall affect the right of the City to offset the said taxes against the same.
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MASTER SUBSCRIPTION AND LICENSE AGREEMENT
This Master Subscription and License Agreement (this “Agreement”) is entered into as of ___________________ (“Effective Date”), by and between
ESO Solutions, Inc., a Texas corporation having its principal place of business at 11500 Alterra Parkway, Suite 100 Austin, TX 78758, including its controlled
subsidiaries, (collectively, “ESO”) and Pearland Fire Department, having its principal place of business at 3519 Liberty Drive, Pearland, TX 77581 (“Customer”).
This Agreement consists of the General Terms & Conditions below and any Addenda (as defined below) executed by the parties, including any attachments to
such Addenda.
The parties have agreed that ESO will provide Customer certain technology products and/or services and that Customer will pay ESO certain fees.
Therefore, in consideration of the covenants, agreements and promises set forth below, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties, intending to be legally bound, hereby agree as follows.
GENERAL TERMS AND CONDITIONS
1. DEFINITIONS. Capitalized terms not otherwise defined in this Agreement
have the meanings below:
“Add-On Software” means any complementary software components or
reporting service(s) that ESO makes available to customer through its
Software.
“Addendum” means a document addressing the order of a specific set of
products or services which is executed by authorized representatives of each
party. An Addendum may be (a) an ESO sales form or “Quote”, (b) a Statement
of Work, or (c) another writing the parties intend to be incorporated by
reference into this Agreement.
“Anonymized Data” means Customer Data from which all personally
identifiable information is removed, as well as the names and addresses of
Customer and any of its Users and/or Customer’s clients (and which, as a
consequence, is neither PHI nor identifiable to or by Customer).
“Customer Data” means information, data and other content in electronic
form that is submitted, posted, or otherwise transmitted by or on behalf of
Customer through the Software.
“Deliverable” means software, report, or other work product created pursuant
to a Statement of Work.
“Documentation” means the Software’s user guides and operating manuals.
“Feedback” refers to any suggestion or idea for improving or otherwise
modifying ESO’s products or services.
“Intellectual Property” means trade secrets, copyrightable subject matter,
patents and patent applications, and other proprietary information, activities,
and any ideas, concepts, innovations, inventions and designs.
“Licensed Software” means the executable, object code version of software
that ESO provides to Customer for its use and installation on Customer’s own
equipment. For the avoidance of doubt, Licensed Software does not include
Add-on Software or SaaS.
“New Version” means any new version of Licensed Software (excluding SaaS
Software) that ESO may from time to time introduce and market generally as a
distinct licensed product, as may be indicated by ESO’s designation of a new
version number, brand or product.
“Outage” means Customer is unable to access SaaS, or such access is
materially delayed, impaired or disrupted, in each case as caused or controlled
by ESO.
“Professional Services” means professional services provided by ESO under a
Statement of Work.
“Protected Health Information” or “PHI” has the meaning set forth in HIPAA. All
references herein to PHI shall be construed to include electronic PHI, or ePHI,
as that term is defined by HIPAA.
“Reporting Services” means, collectively, the different tools or features in the
Software allowing Customer to generate compilations of data, including but
not limited to ad-hoc reports, analytics, benchmarking or any other reporting
tool provided through the Software.
“SaaS” means software-as-a-service that ESO hosts (directly or indirectly) for
Customer’s use on a periodic subscription basis. For the avoidance of doubt,
SaaS does not include Licensed Software.
“Scheduled Downtime” means periods when ESO intentionally interrupts SaaS
to perform system maintenance or otherwise correct service errors during
non-peak hours (except for critical circumstances), typically between midnight
and 6 a.m. Central Time on a fortnightly basis.
“Software” means any ESO computer program, programming or modules
specified in the Agreement or any Addendum. For the avoidance of doubt, Add-
on Software, SaaS, and Licensed Software are collectively referred to as
Software.
“Support Services” means those services described in Exhibit B.
“Third-Party Data” means data not owned by ESO but which is (or access to
which is) provided by ESO under a Software Schedule.
“Third-Party Service” means a service not provided by ESO but which is made
available by ESO in connection with its Software under a Software Schedule or
Addendum.
“Third-Party Software” means software not owned by ESO but which is (or
access to which is) provided by ESO under a Software Schedule or Addendum.
“Use Restrictions” means the restrictions imposed on Customer’s use of
Software as described in Section 3.3.
“User” means any individual who uses the Software on Customer’s behalf or
through Customer’s account or passwords.
2. SOFTWARE ORDERS. During the Term, Customer may order Software
from ESO by signing an appropriate Addendum. Customer’s license to
Licensed Software and its subscription to SaaS are set forth below. Each
such Addendum is incorporated herein by reference.
3. LICENSE/SUBSCRIPTION TO SOFTWARE
3.1. Grant of Subscription: SaaS. For SaaS, during the Term Customer may
access and use the SaaS and Reporting Services, with the access and
volume limitations set forth on the applicable Addendum, subject to
Customer’s compliance with the Use Restrictions and other limitations
contained in this Agreement. The Customer will have access to all
Reporting Services including but not limited to the ad-hoc Reporting
Service until such time as the new Reporting Service has full feature
parity with the ad-hoc Reporting Service.
3.2. Grant of License: Licensed Software. For Licensed Software, during the
Term ESO hereby grants Customer a limited, non-exclusive, non-
transferable, non-assignable, non-sublicensable, revocable license to
copy and use the Licensed Software, in such quantities as are set forth
on the applicable Addendum and as necessary for Customer’s internal
business purposes, in each case subject to Customer’s compliance with
the Use Restrictions and other limitations and obligations contained in
this Agreement. Customer will have access to all available APIs during
the subscription period.
3.3. Use Restrictions. Except as provided in this Agreement or as otherwise
authorized by ESO, Customer has no right to, and shall not: (a)
decompile, reverse engineer, disassemble, print, copy or display the
Software or otherwise reduce the Software to a human-perceivable form
in whole or in part; (b) publish, release, rent, lease, loan, sell, distribute
or transfer the Software to another person or entity; (c) reproduce the
Software for the use or benefit of anyone other than Customer; (d) alter,
modify or create derivative works based upon the Software either in
whole or in part; or (e) use or permit the use of the Software for
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Page2 ESO MSLAv20200415 CONFIDENTIAL
commercial time-sharing arrangements or providing service bureau,
data processing, rental, or other services to any third party (including
any affiliate not specifically listed in the applicable Addendum).
3.4. Ownership. The rights granted under the provisions of this Agreement
do not constitute a sale of the Software. ESO retains all right, title, and
interest in and to the Software, including without limitation all software
used to provide the Software and all graphics, user interfaces, logos
and trademarks reproduced through the Software, except to the limited
extent set forth in this Agreement. This Agreement does not grant
Customer any intellectual property rights in the Software or any of its
components, except to the limited extent that this Agreement
specifically sets forth Customer’s rights to access, use, or copy the
Software during the Term. Customer acknowledges that the Software
and its components are protected by copyright and other laws.
3.5. Third-Party Software and Services. This Section 3.5 applies to Third-
Party Software and Services offered by ESO. Refer to the product table
following the Agreement for applicability.
3.5.1. ESO neither accepts liability for, nor warrants the functionality,
utility, availability, reliability or accuracy of, Third-Party Software or
Third-Party Services. The Third-Party Software “EMS1 Academy”
and/or “FireRescue1 Academy” and/or “EMS1 & FireRescue1
Academy – Implementation and Configuration” and/or “Learning
Management System” and/or “EVALS Implementation” (collectively,
“Education”) is offered by ESO in collaboration with Lexipol, f/k/a
The Praetorian Group. If Customer subscribes to Education,
Customer acknowledges and agrees to the terms and conditions of
the Praetorian license agreement, located at
http://www.praetoriandigital.com/LMS-Master-Service-Agreement,
which shall supersede this Agreement as it applies to Customer’s
use of Education and any Customer Data stored therein.
3.5.2. Third-Party Data. If Customer (as indicated on an Addendum) elects
to license Third-Party Data (e.g., fire codes), then subject to the
terms hereof, ESO hereby grants Customer a non-exclusive, non-
sublicensable, and non-transferable license during the Term to use
such Third-Party Data via the Software solely for Customer’s internal
purposes. Customer will not (i) allow greater access than that set
forth in the applicable Addendum, (ii) disclose, release, distribute,
or deliver Third-Party Data, or any portion thereof, to any third party
(iii) copy, modify, or create derivative works of Third-Party Data, (iv)
rent, lease, lend, sell, sublicense, assign, distribute, publish,
transfer, or otherwise make available Third-Party Data, (v) attempt
to output in any form more than 10% of the Third-Party Data or
otherwise circumvent the usage limitations included in the
Software, (vi) remove any proprietary notices included within Third-
Party Data or Software, or (vii) use Third-Party Data in any manner
or for any purpose that infringes or otherwise violates any
proprietary right of a person, or that violates applicable law. ESO
does not warrant the functionality, reliability, accuracy,
completeness or utility of, Third-Party Data, or accept any liability
therefor. Additional terms and limitations applicable to Third-Party
Data may be provided on the applicable Addendum.
4. HOSTING, SLA & SUPPORT SERVICES
4.1. Hosting & Management. Customer shall be responsible for hosting and
managing any Licensed Software on systems meeting the requirements
specified by ESO. ESO shall be responsible for hosting and managing
any SaaS.
4.2. Service Level Agreement. If an Outage, excluding Scheduled Downtime
(as defined below), results in the service level uptime falling below 99%
for any three-month period (the “Uptime Commitment”), then Customer
may immediately terminate this Agreement, in which case ESO will
refund any prepaid, unearned Fees to Customer. This is Customer’s
sole remedy for ESO’s breach of the Uptime Commitment.
4.3. Scheduled Downtime. ESO will endeavor to provide reasonable (72
hour) notice of Scheduled Downtime to Customer’s Users. Notice of
Scheduled Downtime may be provided from within the Software or via
email. Scheduled Downtime shall never constitute a failure of
performance or Outage by ESO. Notification timelines and the frequency
of Scheduled Downtime are subject to the emergence of security
concerns outside of ESO’s control.
4.4. Support and Updates. During the Term, ESO shall provide to Customer
the Support Services, in accordance with Exhibit B, which is
incorporated herein by reference.
4.5. ESO supports high availability to ensure continuous use of Customer’s
applications.
5. FEES
5.1. Fees. In consideration of the rights granted hereunder, Customer
agrees to pay ESO the fees for the Software and Professional Services
as set forth in the Addendum(s)) (collectively, “Fees”). The Fees are non-
cancelable and non-refundable, except as expressly provided herein.
Customer (or Third-Party Payer, if applicable) shall pay all invoices
within 30 days of receipt.
5.2. Third-Party Payer. If Customer desires to use a third-party to pay some
or all of the Fees on behalf of Customer (a “Third-Party Payer”), then (i)
each applicable Addendum will identify such arrangement, (ii) the Third-
Party Payer will enter into a written agreement with ESO regarding such
arrangement, (iii) Customer may replace the Third-Party Payer by written
notice to ESO (provided that no such change shall be made until the
then-current Term’s renewal), (iv) references within this Section 5 to
Customer’s responsibility for Fees shall be understood to refer to the
Third-Party Payer when applicable, and (v) Customer shall remain
responsible for payment if the Third-Party Payer does not pay the Fees.
5.3. Uplift on Renewal. Fees for Software, which recur annually, shall
increase by 3% each year this Agreement is in effect.
5.4. Taxes and Fees. The Fees are exclusive of all taxes and credit card
processing fees, if applicable. Unless and until Customer provides ESO
a tax exemption certificate, Customer will be responsible for and will
remit (or will promptly reimburse ESO for) all taxes of any kind, including
sales, use, duty, customs, withholding, property, value-added, and other
similar federal, state or local taxes (other than taxes based on ESO’s
income) related to this Agreement.
5.5. Appropriation of Funds. If Customer is a city, county or other
government entity, Customer may terminate the Agreement at the end
of the Customer’s fiscal term if Customer provides evidence that its
governing body did not appropriate sufficient funds for the next fiscal
year. Notwithstanding the foregoing, this provision shall not excuse
Customer from past payment obligations or other Fees earned and
unpaid.
5.6. Usage Monitoring. Customer is solely responsible for its own adherence
to volume and use limitations indicated on the applicable Addendum.
ESO may monitor Customer’s use of the Software, and if Customer’s
usage exceeds the level indicated in the applicable Addendum (an
“Overage”), Customer shall owe ESO the Fee corresponding to such
usage level at a rate no higher than ESO’s then-standard pricing for new
customers at an equivalent usage level. ESO may invoice for Overages
before the next software subscription renewal.
6. TERM AND TERMINATION
6.1. Term. The term of this Agreement (the “Term”) commences on the
Effective Date and continues for a period of one year (or any longer
period provided in an Addendum). Thereafter, the Term will renew for
successive one-year periods unless written notice is provided at least
60 days prior to the anniversary of the Effective Date.
6.2. Termination for Cause. Either party may terminate this Agreement or
any individual Addendum for the other party’s uncured material breach
by providing written notice. The breaching party shall have 30 days from
receipt to cure such breach to the reasonable satisfaction of the non-
breaching party.
6.3. Effect of Termination.
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6.3.1. If Customer terminates this Agreement or any Addendum as a result
of ESO’s material breach, then to the extent Customer prepaid any
Fees, ESO shall refund to Customer those prepaid Fees on a pro-
rata basis from the date Customer actually ceases use of the
Software.
6.3.2. Upon termination of this Agreement or any Addendum, Customer
shall cease all use of the Software and delete, destroy or return all
copies of the Documentation and Licensed Software in its
possession or control, except as required by law. Customer shall
remain obligated to pay appropriate Fees at ESO’s then-current
rates if Customer continues to use or access Software after the
termination or expiration of this Agreement. If Customer’s
Agreement includes a multi-year discount plan with diminishing
discounts, and Customer terminates the Agreement prior to the
completion of the discount plan, Customer shall promptly pay ESO’s
invoice recouping such discounts for a maximum of two years prior
to the date of termination.
6.3.3. Termination of this Agreement is without prejudice to any other right
or remedy and shall not release a party from any liability.
6.4. Delivery of Data. ESO will provide Customer its Customer Data in a
searchable .pdf and NEMSIS Data file and NFIRS in xml, or mutually
agreed by the parties within 60 days of the expiration or termination of
this Agreement. Customer acknowledges that ESO has no obligation to
retain Customer Data more than 60 days after expiration or termination
of this Agreement.
7. REPRESENTATIONS AND WARRANTIES
7.1. Material Performance of Software. After it is fully implemented (and
subject to Customer’s adherence to Sections 3.3, 4.1 and 13.4), ESO
warrants that the Software will reliably collect, transmit, store and/or
permit access to data in compliance with applicable law and industry
standards.
7.2. Due Authority. Each party’s execution, delivery and performance of this
Agreement and each agreement or instrument contemplated by this
Agreement is duly authorized by all necessary corporate or government
action.
7.3. Customer Cooperation. Customer agrees to use current operating
systems and reasonably and timely cooperate with ESO, including
providing ESO reasonable access to its equipment, software and data
as necessary for the implementation and operation of the Software.
8. DISCLAIMER OF WARRANTIES. EXCEPT AS OTHERWISE PROVIDED IN
SECTION 7, ESO DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS
FOR A PARTICULAR PURPOSE, PERFORMANCE, SUITABILITY, TITLE, NON-
INFRINGEMENT, OR ANY IMPLIED WARRANTY ARISING FROM STATUTE,
COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE.
EXCEPT AS EXPRESSLY PROVIDED IN SECTION 7, CUSTOMER ACCEPTS
THE SOFTWARE “AS-IS” AND “AS AVAILABLE.”
9. CONFIDENTIALITY
9.1. “Confidential Information” refers to the following items: (a) any
document marked “Confidential”; (b) any information orally designated
as “Confidential” at the time of disclosure, provided the disclosing party
confirms such designation in writing within five business days; (c) the
Software and Documentation, whether or not designated confidential;
(d) ESO’s security controls, policies, procedures, audits, or other
information concerning ESO’s internal security posture; (e) any other
nonpublic, sensitive information reasonably treated as trade secret or
otherwise confidential; and (f) Customer Data which does not comprise
PHI . Notwithstanding the foregoing, Confidential Information does not
include information that: (i) is in the other party’s possession at the time
of disclosure free of duty of non-disclosure; (ii) is independently
developed without use of or reference to Confidential Information; (iii)
becomes known publicly, before or after disclosure, other than as a
result of the receiving party’s improper action or inaction; (iv) is
approved for release in writing by the disclosing party; (v) as to ESO,
Customer’s Feedback; or (vi) is PHI (which shall be governed by the
Business Associate Agreement rather than this Section).
9.2. Nondisclosure. Each party shall use Confidential Information of the
other party solely to fulfill the terms of this Agreement (the “Purpose”).
Each party shall (a) ensure that its employees or contractors are
bound by confidentiality obligations no less restrictive than those
contained herein, and (b) not disclose Confidential Information to any
other third party without prior written consent from the disclosing
party. Without limiting the generality of the foregoing, the receiving
party shall protect Confidential Information with the same degree of
care it uses to protect its own confidential information of similar
nature and importance, but with no less than reasonable care. A
receiving party shall promptly notify the disclosing party of any misuse
or misappropriation of Confidential Information of which it is aware.
9.3. Termination & Return. With respect to each item of Confidential
Information, the obligations of nondisclosure will terminate three years
after the date of disclosure; provided that, such obligations related to
Confidential Information constituting ESO’s trade secrets shall continue
so long as such information remains subject to trade secret protection
pursuant to applicable law. Upon termination of this Agreement, a party
shall return all copies of Confidential Information to the other or certify
the destruction thereof.
9.4. Retention of Rights. This Agreement does not transfer ownership of
Confidential Information or grant a license thereto.
9.5. Open Records and Other Laws. Notwithstanding anything in this Section
to the contrary, the parties expressly acknowledge that Confidential
Information may be disclosed if such Confidential Information is
required to be disclosed by law, a lawful public records request, or
judicial order, provided that prior to such disclosure, written notice of
such required disclosure shall be given promptly and without
unreasonable delay by the receiving party in order to give the disclosing
party the opportunity to object to the disclosure and/or to seek a
protective order. The receiving party shall reasonably cooperate in this
effort. In addition, Customer may disclose the contents of this
Agreement solely for the purpose of completing its review and approval
processes under its local rules, if applicable.
10. INSURANCE. Throughout the Term (and for a period of at least three
years thereafter for any insurance written on a claims-made form) ESO
shall maintain in effect the insurance coverage described below:
10.1. Commercial general liability insurance with a minimum of $1 million per
occurrence and $1 million aggregate;
10.2. Commercial automobile liability insurance covering use of all non-
owned and hired automobiles with a minimum limit of $1 million for
bodily injury and property damage liability;
10.3. Worker’s compensation insurance and employer’s liability insurance or
any alternative plan or coverage as permitted or required by applicable
law, with a minimum employer’s liability limit of $1 million each
accident or disease; and
10.4. Computer processor/computer professional liability insurance (a/k/a
technology errors and omissions) covering the liability for financial loss
due to error, omission or negligence of ESO, and privacy and network
security insurance (“cyber coverage”) covering losses arising from a
disclosure of confidential information (including PHI) with a combined
aggregate amount of $1 million. ESO will notify the Customer without
unreasonable delay of becoming aware of a data or cyber security
breach that has or could have an impact to Customer. If breach has a
Customer-impact, ESO will provide the Customer with a detailed
accounting and analysis of the breach. ESO will take reasonable
measures to reduce the potential of future breaches.
11. INDEMNIFICATION
11.1. IP Infringement. Subject to the limitations in Section 12, ESO shall
defend and indemnify Customer from any damages, costs, liabilities,
expenses (including reasonable attorney’s fees) (“Damages”) actually
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incurred or finally adjudicated as to any third-party claim or action
alleging that the Software delivered pursuant to this Agreement
infringe or misappropriate any third party’s patent, copyright, trade
secret, or other intellectual property rights enforceable in the
applicable jurisdiction (each, an “Indemnified Claim”). If Customer
makes an Indemnified Claim under this Section or if ESO determines
that an Indemnified Claim may occur, ESO shall at its option: (a) obtain
a right for Customer to continue using such Software; (b) modify such
Software to make it a non-infringing equivalent or (c) replace such
Software with a non-infringing equivalent. If (a), (b), or (c) above are
not reasonably practicable, either party may, at its option, terminate
the relevant Addendum, in which case ESO will refund any pre-paid
Fees on a pro-rata basis for such Addendum. Notwithstanding the
foregoing, ESO shall have no obligation hereunder for any claim
resulting or arising from (x) Customer’s breach of this Agreement; (y)
modifications made to the Software not performed or provided by or
on behalf of ESO or (z) the combination, operation or use by Customer
(and/or anyone acting on Customer’s behalf) of the Software in
connection with any other product or service (the combination or joint
use of which causes the alleged infringement). This Section 11 states
ESO’s sole obligation and liability, and Customer’s sole remedy, for
potential or actual intellectual property infringement by the Software.
11.2. Indemnification Procedures. Upon becoming aware of any matter
which is subject to the provisions of Sections 11.1 (a "Claim"),
Customer must give prompt written notice of such Claim to ESO,
accompanied by copies of any written documentation regarding the
Claim received by the Customer. ESO shall compromise or defend, at
its own expense and with its own counsel, any such Claim. Customer
will have the right, at its option, to participate in the settlement or
defense of any such Claim, with its own counsel and at its own
expense; provided, however, that ESO will have the right to control
such settlement or defense. ESO will not enter into any settlement
that imposes any liability or obligation on Customer without the
Customer’s prior written consent. The parties will cooperate in any
such settlement or defense and give each other full access to all
relevant information, at ESO’s expense.
12. LIMITATION OF LIABILITY
12.1. LIMITATION OF DAMAGES. NEITHER ESO NOR CUSTOMER SHALL BE
LIABLE TO THE OTHER FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL,
PUNITIVE OR INCIDENTAL DAMAGES, INCLUDING CLAIMS FOR
DAMAGES FOR LOST PROFITS, GOODWILL, USE OF MONEY,
INTERRUPTED OR IMPAIRED USE OF THE SOFTWARE, AVAILABILITY OF
DATA, STOPPAGE OF WORK OR IMPAIRMENT OF OTHER ASSETS
RELATING TO THIS AGREEMENT.
12.2. SPECIFIC LIABILITY. LIABILITY SHALL BE LIMITED AS FOLLOWS:
(a) ESO’S OBLIGATIONS UNDER SECTION 11 SHALL BE LIMITED TO
$500,000.
(b) DAMAGES ARISING FROM A PARTY’S BREACH OF
CONFIDENTIALITY OBLIGATIONS (INCLUDING A BREACH OF
OBLIGATIONS REGARDING PROTECTED HEALTH INFORMATION),
SHALL BE LIMITED TO $1,000,000.
(c) DAMAGES ARISING FROM A PARTY’S WILLFUL MISCONDUCT OR
CRIMINAL CONDUCT SHALL NOT BE LIMITED.
12.3. GENERAL LIABILITY. EXCEPT AS EXPRESSLY PROVIDED “SPECIFIC
LIABILITY,” ESO’S MAXIMUM AGGREGATE LIABILITY FOR ALL CLAIMS
OF LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS
AGREEMENT SHALL NOT EXCEED THE FEES PAID BY (OR ON BEHALF
OF) CUSTOMER WITHIN THE PRECEDING 12-MONTH PERIOD UNDER
THE APPLICABLE ADDENDUM OR EXHIBIT GIVING RISE TO THE CLAIM.
12.4. THE FOREGOING LIMITATIONS, EXCLUSIONS, DISCLAIMERS SHALL
APPLY REGARDLESS OF WHETHER THE CLAIM FOR SUCH DAMAGES IS
BASED IN CONTRACT, WARRANTY, STRICT LIABILITY, NEGLIGENCE,
TORT OR OTHERWISE. INSOFAR AS APPLICABLE LAW PROHIBITS ANY
LIMITATION HEREIN, THE PARTIES AGREE THAT SUCH LIMITATION
SHALL BE AUTOMATICALLY MODIFIED, BUT ONLY TO THE EXTENT SO
AS TO MAKE THE LIMITATION PERMITTED TO THE FULLEST EXTENT
POSSIBLE UNDER SUCH LAW. THE PARTIES AGREE THAT THE
LIMITATIONS SET FORTH HEREIN ARE AGREED ALLOCATIONS OF RISK
CONSTITUTING IN PART THE CONSIDERATION FOR ESO’S SOFTWARE
AND SERVICES TO CUSTOMER, AND SUCH LIMITATIONS WILL APPLY
NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSES OF
ANY LIMITED REMEDY AND EVEN IF A PARTY HAS BEEN ADVISED OF
THE POSSIBILITY OF SUCH LIABILITIES.
12.5. THIS SECTION 12 SHALL SURVIVE EXPIRATION OR TERMINATION OF
THE AGREEMENT.
13. CUSTOMER DATA & PRIVACY
13.1. Ownership of Data. As between ESO and Customer, all Customer Data
shall be owned by Customer.
13.2. Use of Customer Data. Unless it receives Customer’s prior written
consent, ESO shall not grant any third-party access to Customer Data,
except (a) subcontractors that are subject to a reasonable
nondisclosure agreement or (b) authorized participants in the case of
Software designed to permit Customer to transmit Customer Data.
ESO may only use and disclose Customer Data to fulfill its obligations
under this Agreement or as required by applicable law or legal or
governmental authority. ESO shall give Customer prompt notice of any
such legal or governmental demand and reasonably cooperate with
Customer in any effort to seek a protective order or otherwise contest
such required disclosure, at Customer’s expense.
13.3. Anonymized Data. CUSTOMER ACKNOWLEDGES AND AGREES THAT,
NOTWITHSTANDING ANY OTHER PROVISION HEREIN, ESO MAY USE
ANONYMIZED DATA FOR INTERNAL AND EXTERNAL PURPOSES
(INCLUDING BENCHMARKING AND RESEARCH), PROVIDED THAT ESO
WILL NOT SELL ANONYMIZED DATA TO THIRD PARTIES FOR
COMMERCIAL USE. Without limiting the foregoing, ESO will own all
right, title and interest in all Intellectual Property of any aggregated
and de-identified reports, summaries, compilations, analysis, statistics
or other information derived therefrom.
13.4. Internet Access. Customer is solely responsible for obtaining,
maintaining, and securing its network connections, and acknowledges
such connections are essential to the effective operation of the
Software. ESO makes no representations to Customer regarding the
reliability, performance or security of any network or service provider
not provided or managed by ESO.
14. WORK PRODUCT
14.1. Work Product Ownership. In the event Customer hires ESO to perform
Professional Services, ESO alone shall hold all right, title, and interest
to all proprietary and intellectual property rights of the Deliverables
(including, without limitation, patents, trade secrets, copyrights, and
trademarks), as well as title to any copy of software made by or for
Customer (if applicable). Customer hereby explicitly acknowledges and
agrees that nothing in this Agreement or a separate Addendum gives
the Customer any right, title, or interest to the intellectual property or
proprietary know-how of the Deliverables.
15. GOVERNMENT PROVISIONS
15.1. Compliance with Laws. Both parties shall comply with and give all
notices required by all applicable federal, state and local laws,
ordinances, rules, regulations and lawful orders of any public authority
bearing on use of the Software and the performance of this
Agreement.
15.2. Business Associate Addendum. The parties agree to the terms of the
Business Associate Addendum attached as Exhibit B and incorporated
herein by reference.
15.3. Equal Opportunity. The parties shall abide by the requirements of 41
CFR 60-1.4(a), 60-300.5(a) and 60-741.5(a), and the posting
requirements of 29 CFR Part 471, appendix A to subpart A, if
applicable (prohibiting discrimination on the basis of protected veteran
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Page5 ESO MSLAv20200415 CONFIDENTIAL
status, disability, race, color, religion, sex, sexual orientation, gender
identity or national origin).
15.4. Excluded Parties List. ESO agrees to report to Customer if an employee
or contractor is listed by a federal agency as debarred, excluded or
otherwise ineligible for participation in federally funded health care
programs.
16. PHI ACCURACY & COMPLETENESS
16.1. Customer Responsibilities. The Software allows Customer and its
Users to enter, document, and disclose Customer Data, and as such,
ESO gives no representations or guarantees about the accuracy or
completeness of Customer Data (including PHI) entered, uploaded or
disclosed through the Software. Customer is solely responsible for any
decisions or actions taken involving patient care or patient care
management, whether those decisions or actions were made or taken
using information received through the Software.
16.2. HDE Customer Certifications. In the interest of furthering community
health through the power of data, ESO encourages Customers
subscribing to ESO’s Health Data Exchange (“HDE”) Software to
empower joint healthcare providers by incorporating relevant, HIPAA-
compliant data elements in Customer’s outgoing patient care records
delivered through HDE. ESO shall annually accredit qualifying
customers with Gold, Silver, or Bronze level certifications in
accordance with Exhibit C, and Customer may reference such
certification in marketing materials.
17. MISCELLANEOUS
17.1. Independent Contractors. The parties are independent contractors.
Neither party is the agent of the other, and neither may make
commitments on the other’s behalf. The parties agree that no ESO
employee or contractor is or will be considered an employee of
Customer.
17.2. Notices. Notices provided under this Agreement must be in writing and
delivered by (a) certified mail, return receipt requested to a party’s
principal place of business as forth in the recitals on page 1 of this
Agreement, (b) hand delivered, (c) facsimile with receipt of a
"Transmission Confirmed" acknowledgment, (d) e-mail to a person
designated in writing by the receiving party, or (e) delivery by a
reputable overnight carrier service. In the case of delivery by facsimile
or e-mail, the notice must be followed by a copy of the notice being
delivered by a means provided in (a), (b) or (e). The notice will be
deemed given on the day the notice is received.
17.3. Merger Clause. In entering into this Agreement, neither party is relying
upon any representations or statements of the other that are not fully
expressed in this Agreement; rather, each party is relying on its own
judgment and due diligence and expressly disclaims reliance upon any
representations or statement not expressly set forth in this Agreement.
In the event the Customer issues a purchase order, letter or any other
document addressing the Software or Services to be provided and
performed pursuant to this Agreement, it is hereby specifically agreed
and understood that any such writing is for the Customer’s internal
purposes only, and that any terms, provisions, and conditions
contained therein shall in no way modify this Agreement.
17.4. Severability. To the extent permitted by applicable law, the parties
hereby waive any provision of law that would render any clause of this
Agreement invalid or otherwise unenforceable in any respect. If a
provision of this Agreement is held to be invalid or otherwise
unenforceable, such provision will be interpreted to fulfill its intended
purpose to the maximum extent permitted by applicable law, and the
remaining provisions of this Agreement will continue in full force and
effect.
17.5. Subcontracting. Except for training and implementation services
related to the Software, neither party may subcontract or delegate its
obligations to each other hereunder, nor may it contract with third
parties to perform any of its obligations hereunder except as
contemplated in this Agreement, without the other party’s prior written
consent.
17.6. Modifications and Amendments. This Agreement may not be amended
except through a written agreement signed by authorized
representatives of each party, provided that the Customer agrees that
ESO may rely on informal writings (including emails) of Customer’s
authorized representatives to (i) terminate Software products and
services and (ii) approve or ratify rate or tier increases for Software
products and services then in use by Customer.
17.7. Force Majeure. No delay, failure, or default will constitute a breach of
this Agreement to the extent caused by acts of war, terrorism,
hurricanes, earthquakes, other acts of God or of nature, strikes or
other labor disputes, riots or other acts of civil disorder, embargoes, or
other causes beyond the performing party’s reasonable control
(collectively, “Force Majeure”). In such event, however, the delayed
party must promptly provide the other party notice of the Force
Majeure. The delayed party’s time for performance will be excused for
the duration of the Force Majeure, but if the event last longer than 30
days, the other party may immediately terminate the applicable
Addendum.
17.8. Marketing. If requested by ESO, Customer agrees to reasonably
cooperate with ESO’s preparation and issuance of a public
announcement regarding the relationship of the parties.
17.9. Waiver & Breach. Neither party will be deemed to waive any rights
under this Agreement except through an explicit written waiver made
by an authorized representative. No waiver of a breach of this
Agreement will constitute a waiver of any other breach hereof.
17.10. Survival of Terms. Unless otherwise stated, all of ESO’s and
Customer’s respective obligations, representations and warranties
under this Agreement which are not, by the expressed terms of this
Agreement, fully to be performed while this Agreement is in effect shall
survive the termination of this Agreement.
17.11. Ambiguous Terms. This Agreement will not be construed against any
party by reason of its preparation.
17.12. Governing Law. This Agreement, any claim dispute or controversy
hereunder (a “Dispute”) will be governed by (i) the laws of the State of
Texas, or (ii) if Customer is a city, county, municipality or other
governmental entity, the law of state where Customer is located, in
each case foregoing without regard to its conflicts of law. The UN
Convention for the International Sale of Goods and the Uniform
Computer Information Transactions Act will not apply. In any Dispute,
each party will bear its own attorneys’ fees and costs and expressly
waives any statutory right to attorneys’ fees.
17.13. New Versions & Sunset. If ESO releases a New Version of Licensed
Software (i.e., not SaaS), Customer may elect to receive such New
Version, subject to a relicense fee of 75% of the standard price for
such new version. All New Versions provided under this Agreement will
constitute Licensed Software and be subject to the terms and
conditions of this Agreement. ESO may discontinue Support Services
for Licensed Software upon 12 months’ notice to Customer.
17.14. No Class Actions. NEITHER PARTY SHALL BE ENTITLED TO JOIN OR
CONSOLIDATE CLAIMS BY OR AGAINST OTHER ESO CUSTOMERS OR
PURSUE ANY CLAIM AS A REPRESENTATIVE OR CLASS ACTION OR IN A
PRIVATE ATTORNEY GENERAL CAPACITY.
17.15. Dispute Resolution. Customer and ESO will attempt to resolve any
Dispute through negotiation or by utilizing a mediator agreed to by the
parties, rather than through litigation. Negotiations and mediations will
be treated as confidential. If the parties are unable to reach a
resolution within 30 days of notice of the Dispute to the other party,
the parties may pursue all other courses of action available at law or in
equity.
17.16. Technology Export. Customer shall not: (a) permit any third party to
access or use the Software in violation of any U.S. law or regulation; or
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(b) export any software provided by ESO or otherwise remove it from
the United States except in compliance with all applicable U.S. laws
and regulations. Without limiting the generality of the foregoing,
Customer shall not permit any third party to access or use the
Software in, or export such software to, a country subject to a United
States embargo (as of the Effective Date - Cuba, Iran, North Korea,
Sudan, and Syria).
17.17. Order of Precedence. In the event of any conflict between this
Agreement, Addenda or other attachments incorporated herein, the
following order of precedence will govern: (1) the General Terms and
Conditions; (2) any Business Associate Agreement; (3) the applicable
Addendum, with most recent Addendum taking precedence over
earlier ones; and (4) any ESO policy posted online, including without
limitation its privacy policy. No amendments incorporated into this
Agreement after execution of the General Terms and Conditions will
amend such General Terms and Conditions unless it specifically states
its intent to do so and cites the section or sections amended.
17.18. Counterparts. This Agreement may be executed in one or more
counterparts. Each counterpart will be an original, and all such
counterparts will constitute a single instrument.
17.19. Signatures. Electronic signatures on this Agreement or on any
Addendum (or copies of signatures sent via electronic means) are the
equivalent of handwritten signatures.
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Page7 ESO MSLAv20200415 CONFIDENTIAL
IN WITNESS WHEREOF, the parties have executed this Agreement as of the Effective Date.
ESO Solutions, Inc. Customer
By: By:
(signature) (signature)
Name: Name:
(print name) (print name)
Title: Title:
(print title) (print title)
Robert Munden
Chief Legal & Compliance Officer
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CIO
Daniel McGhinnis
Page8 ESO MSLAv20200415 CONFIDENTIAL
EXHIBIT A-1
SAAS SOFTWARE SCHEDULE
(Applications - ESO EHR, ESO Fire, ESO PM, FIREHOUSE Cloud, IFC Codes, EMS1 Academy, FireRescue1 Academy, Staff Scheduling, Assets, Inventory, Checklist)
1. The SaaS subscription term shall begin 15 calendar days after the Effective Date (“SaaS Subscription Start Date”). Customer shall be deemed to have
accepted the SaaS on the SaaS Subscription Start Date. The parties will make reasonable efforts to ensure that Customer is able to use the SaaS as
contemplated as quickly as possible, but in no event will the SaaS Subscription Start Date be modified for implementation delays.
2. The following SaaS may be ordered under this Exhibit:
2.1. ESO Electronic Health Record (“EHR”) is a SaaS software application for prehospital patient documentation (http://www.eso.com/software/ehr).
2.2. ESO Personnel Management (“PM”) is a SaaS software application for tracking personnel records, training courses and education history
(http://www.eso.com/software/personnel-management).
2.3. ESO Fire is a SaaS software application for NFIRS reporting (http://www.eso.com/software/fire).
3. The following Third-Party Data and/or Software may be ordered under this Exhibit: 2018 International Fire Code, 2015 International Fire Code, 2012
International Fire Code, Education (see section 3.5).
4. Third-Party Payer is responsible for the following products and Fees:
N/A
5. Customer hereby agrees to timely pay for the following products according to the schedule below:
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6. All the Fees above will be invoiced by ESO as follows:
6.1. Training and Training Travel Fees shall be invoiced on the Effective Date.
6.2. During the first year, 100% of the remaining Fees shall be invoiced on the SaaS Subscription Start Date.
6.3. During the second year and any renewal years thereafter, 100% of the recurring Fees shall be due on the anniversary of the SaaS Subscription Start
Date.
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EXHIBIT B
SUPPORT SERVICES ADDENDUM
1. DEFINITIONS. Capitalized terms not defined below shall have the same meaning as in the General Terms & Conditions.
1.1. “Enhancement” means a modification, addition or new release of the Software that when added to the Software, materially changes its utility,
efficiency, functional capability or application.
1.2. “E-mail Support” means ability to make requests for technical support assistance by e-mail at any time concerning the use of the then-current release
of Software.
1.3. “Error” means an error in the Software, which significantly degrades performance of such Software as compared to ESO’s then-published
Documentation.
1.4. “Error Correction” means the use of reasonable commercial efforts to correct Errors.
1.5. “Fix” means the repair or replacement of object code for the Software or Documentation to remedy an Error.
1.6. “Initial Response” means the first contact by a Support Representative after the incident has been logged and a ticket generated. This may include
an automated email response depending on when the incident is first communicated.
1.7. “Management Escalation” means, if the initial Workaround or Fix does not resolve the Error, notification of management that such Error(s) have been
reported and of steps being taken to correct such Error(s).
1.8. “Severity 1 Error” means an Error which renders the Software completely inoperative (e.g., a User cannot access the Software due to unscheduled
downtime or an Outage).
1.9. “Severity 2 Error” means an Error in which Software is still operable; however, one or more significant features or functionality are unavailable (e.g., a
User cannot access a core component of the Software).
1.1. “Severity 3 Error” means any other error that does not prevent a User from accessing a significant feature of the Software (e.g., User is experiencing
latency in reports).
1.2. “Severity 4 Error” means any error related to Documentation or a Customer Enhancement request.
1.3. “Status Update” means if the initial Workaround or Fix cannot resolve the Error, notification of the Customer regarding the progress of the
Workaround or Fix.
1.4. “Online Support” means information available through ESO’s website (www.eso.com), including frequently asked questions and bug reporting via Live
Chat.
1.5. “Support Representative” shall be ESO employee(s) or agent(s) designated to receive Error notifications from Customer, which Customer’s
Administrator has been unable to resolve.
1.6. “Update” means an update or revision to Software, typically for Error Correction.
1.7. “Upgrade” means a new version or release of Software or a particular component of Software, which improves the functionality or which adds
functional capabilities to the Software and is not included in an Update. Upgrades may include Enhancements.
1.8. “Workaround” means a change in the procedures followed or data supplied by Customer to avoid an Error without substantially impairing Customer’s
use of the Software.
2. SUPPORT SERVICES.
2.1. Customer will provide at least one administrative employee (the “Administrator” or “Administrators”) who will handle all requ ests for first-level support
from Customer’s employees with respect to the Software. Such support is intended to be the “front line” for support and information about the
Software to Customer’s Users. ESO will provide training, documentation, and materials to the Administrator to enable the Administrator to provide
technical support to Customer’s Users. The Administrator will notify a Support Representative of any Errors that the Administrator cannot resolve and
assist ESO in information gathering.
2.2. ESO will provide Support Services consisting of (a) Error Correction(s); Enhancements, Updates and Upgrades that ESO, in its discretion, makes
generally available to its customers without additional charge; and (c) E-mail Support, telephone support, and Online Support. ESO may use multiple
forms of communication for purposes of submitting periodic status reports to Customer, including but not limited to, messages in the Software,
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Page11 ESO MSLAv20200415 CONFIDENTIAL
messages appearing upon login to the Software or other means of broadcasting Status Update(s) to multiple customers affected by the same Error,
such as a customer portal.
2.3. ESO’s support desk will be staffed with competent technical consultants who are trained in and thoroughly familiar with the Software and with
Customer’s applicable configuration. Telephone support and all communications will be delivered in intelligible English.
2.4. Normal business hours for ESO’s support desk are Monday through Friday 7:00 am to 7:00 pm CT. Customer will receive a call back from a Support
Representative after-hours for a Severity 1 Error.
2.5. ESO will provide responses to a technology and/or security assessment of reasonable detail (a “Tech Assessment”) upon request prior to (or in
connection with) implementation. ESO will provide responses to any subsequent Tech Assessments provided that Customer compensates ESO at its
then-current and standard consulting rates for all work performed in connection with such Tech Assessments.
3. ERROR PRIORITY LEVELS. Customer will report all Errors to ESO via e-mail (support@eso.com) or by telephone (866-766-9471, option #3). ESO shall
exercise commercially reasonable efforts to correct any Error reported by Customer in accordance with the priority level reasonably assigned to such Error by
ESO.
3.1. Severity 1 Error. ESO shall (i) commence Error Correction promptly; (ii) provide an Initial Response within four hours; (iii) initiate Management
Escalation promptly; and (iv) provide Customer with a Status Update within four hours if ESO cannot resolve the Error within four hours.
3.2. Severity 2 Error. ESO shall (i) commence Error Correction promptly; (ii) provide an Initial Response within eight hours; (iii) initiate Management
Escalation within 48 hours if unresolved; and (iv) provide Customer with a Status Update within forty-eight hours if ESO cannot resolve the Error within
forty-eight hours.
3.3. Severity 3 Error. ESO shall (i) commence Error Correction promptly; (ii) provide an Initial Response within three business days; and (iii) provide
Customer with a Status Update within seven calendar days if ESO cannot resolve the Error within seven calendar days.
3.4. Severity 4 Error. ESO shall (i) provide an Initial Response within seven calendar days.
4. CONSULTING SERVICES. If ESO reasonably believes that a problem reported by Customer is not due to an Error in the Software, ESO will so notify Customer.
At that time, Customer may request ESO to proceed with a root cause analysis at Customer’s expense as set forth herein or in a separate SOW. If ESO
agrees to perform the investigation on behalf of Customer, then ESO’s then-current and standard consulting rates will apply for all work performed in
connection with such analysis, plus reasonable related expenses incurred. For the avoidance of doubt, Consulting Services will include customized report
writing by ESO on behalf of Customer.
5. EXCLUSIONS.
5.1. ESO shall have no obligation to perform Error Corrections or otherwise provide support for: (i) Customer’s repairs, maintenance or modifications to
the Software (if permitted); (ii) Customer’s misapplication or unauthorized use of the Software; (iii) altered or damaged Software not caused by ESO;
(iv) any third-party software; (v) hardware issues; (vi) Customer’s breach of the Agreement; and (vii) any other causes beyond the ESO’s reasonable
control.
5.2. ESO shall have no liability for any changes in Customer’s hardware or software systems that may be necessary to use the Software due to a
Workaround or Fix.
5.3. ESO is not required to perform any Error Correction unless ESO can replicate such Error on its own software and hardware or through remote access
to Customer’s software and hardware.
5.4. Customer is solely responsible for its selection of hardware, and ESO shall not be responsible the performance of such hardware even if ESO makes
recommendations regarding the same.
6. MISCELLANEOUS. The parties acknowledge that from time-to-time ESO may update its support processes specifically addressed in this Exhibit and may do
so by posting such updates to ESO’s website or otherwise notifying Customer of such updates. Customer will accept updates to ESO’s support procedures
and any other terms in this Exhibit; provided however, that they do not materially decrease the level of Support Services that Customer will receive from
ESO. THESE TERMS AND CONDITIONS DO NOT CONSTITUTE A PRODUCT WARRANTY. THIS EXHIBIT IS AN ADDITIONAL PART OF THE AGREEMENT AND DOES
NOT CHANGE OR SUPERSEDE ANY TERM OF THE AGREEMENT EXCEPT TO THE EXTENT UNAMBIGUOUSLY CONTRARY THERETO.
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EXHIBIT C
HIPAA BUSINESS ASSOCIATE ADDENDUM
Customer and ESO Solutions, Inc. ("Business Associate") agree that this HIPAA Business Associate Addendum is entered into for the benefit of Customer,
which is a covered entity under the Privacy Standards ("Covered Entity").
Pursuant to the Master Subscription and License Agreement (the “Agreement”) into which this HIPAA Business Associate Addendum (this “Addendum”) has
been incorporated, Business Associate may perform functions or activities involving the use and/or disclosure of PHI on behalf of the Covered Entity, and
therefore, Business Associate may function as a business associate. Business Associate, therefore, agrees to the following terms and conditions.
1. Scope. This Addendum applies to and is hereby automatically incorporated into all present and future agreements and relationships, whether written, oral
or implied, between Covered Entity and Business Associate, pursuant to which PHI is created, maintained, received or transmitted by Business Associate
from or on behalf of Covered Entity in any form or medium whatsoever.
2. Definitions. For purposes of this Addendum, the terms used herein, unless otherwise defined, shall have the same meanings as used in the Health
Insurance Portability and Accountability Act of 1996 ("HIPAA"), or the Health Information Technology for Economic and Clinical Health Act ("HITECH"), and
any amendments or implementing regulations, (collectively "HIPAA Rules").
3. Compliance with Applicable Law. The parties acknowledge and agree that, beginning with the relevant effective date, Business Associate shall comply with
its obligations under this Addendum and with all obligations of a business associate under HIPAA, HITECH, the HIPAA Rules, and other applicable laws and
regulations, as they exist at the time this Addendum is executed and as they are amended, for so long as this Addendum is in place.
4. Permissible Use and Disclosure of PHI. Business Associate may use and disclose PHI as necessary to carry out its duties to a Covered Entity pursuant to the
terms of the Agreement and as required by law. Business Associate may also use and disclose PHI (i) for its own proper management and administration,
and (ii) to carry out its legal responsibilities. If Business Associate discloses Protected Health Information to a third party for either above reason, prior to
making any such disclosure, Business Associate must obtain: (i) reasonable assurances from the receiving party that such PHI will be held confidential and
be disclosed only as required by law or for the purposes for which it was disclosed to such receiving party; and (ii) an agreement from such receiving party to
immediately notify Business Associate of any known breaches of the confidentiality of the PHI.
5. Limitations on Use and Disclosure of PHI. Business Associate shall not, and shall ensure that its directors, officers, employees, subcontractors, and agents
do not, use or disclose PHI in any manner that is not permitted by the Agreement or that would violate Subpart E of 45 C.F.R. 164 ("Privacy Rule") if done by
a Covered Entity. All uses and disclosures of, and requests by, Business Associate for PHI are subject to the minimum necessary rule of the Privacy Rule.
6. Required Safeguards to Protect PHI. Business Associate shall use appropriate safeguards, and comply with Subpart C of 45 C.F.R. Part 164 ("Security Rule")
with respect to electronic PHI, to prevent the use or disclosure of PHI other than pursuant to the terms and conditions of this Addendum.
7. Reporting to Covered Entity. Business Associate shall report to the affected Covered Entity without unreasonable delay: (a) any use or disclosure of PHI not
provided for by the Agreement of which it becomes aware; (b) any breach of unsecured PHI in accordance with 45 C.F.R. Subpart D of 45 C.F.R. 164
("Breach Notification Rule"); and (c) any security incident of which it becomes aware. With regard to Security Incidents caused by or occurring to Business
Associate, Business Associate shall cooperate with the Covered Entity's investigation, analysis, notification and mitigation activities, and except for Security
Incidents caused by Covered Entity, shall be responsible for reasonable costs incurred by the Covered Entity for those activities. Notwithstanding the
foregoing, Covered Entity acknowledges and shall be deemed to have received advanced notice from Business Associate that there are routine occurrences
of: (i) unsuccessful attempts to penetrate computer networks or services maintained by Business Associate; and (ii) immaterial incidents such as “pinging”
or “denial of services” attacks.
8. Mitigation of Harmful Effects. Business Associate agrees to mitigate, to the extent practicable, any harmful effect of a use or disclosure of PHI by Business
Associate in violation of the requirements of the Agreement, including, but not limited to, compliance with any state law or contractual data breach
requirements.
9. Agreements by Third Parties. Business Associate shall enter into an agreement with any subcontractor of Business Associate that creates, receives,
maintains or transmits PHI on behalf of Business Associate. Pursuant to such agreement, the subcontractor shall agree to be bound by the same or greater
restrictions, conditions, and requirements that apply to Business Associate under this Addendum with respect to such PHI.
10. Access to PHI. Within five business days of a request by a Covered Entity for access to PHI about an individual contained in a Designated Record Set,
Business Associate shall make available to the Covered Entity such PHI for so long as such information is maintained by Business Associate in the
Designated Record Set, as required by 45 C.F.R. 164.524. In the event any individual delivers directly to Business Associate a request for access to PHI,
Business Associate shall within five (5) business days forward such request to the Covered Entity.
11. Amendment of PHI. Within five business days of receipt of a request from a Covered Entity for the amendment of an individual's PHI or a record regarding an
individual contained in a Designated Record Set (for so long as the PHI is maintained in the Designated Record Set), Business Associate shall provide such
information to the Covered Entity for amendment and incorporate any such amendments in the PHI as required by 45 C.F.R. 164.526. In the event any
individual delivers directly to Business Associate a request for amendment to PHI, Business Associate shall within five business days forward such request
to the Covered Entity.
12. Documentation of Disclosures. Business Associate agrees to document disclosures of PHI and information related to such disclosures as would be required
for a Covered Entity to respond to a request by an individual for an accounting of disclosures of PHI in accordance with 45 C.F.R. 164.528 and HITECH.
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13. Accounting of Disclosures. Within five business days of notice by a Covered Entity to Business Associate that it has received a request for an accounting of
disclosures of PHI, Business Associate shall make available to a Covered Entity information to permit the Covered Entity to respond to the request for an
accounting of disclosures of PHI, as required by 45 C.F.R. 164.528 and HITECH.
14. Other Obligations. To the extent that Business Associate is to carry out one or more of a Covered Entity's obligations under the Privacy Rule, Business
Associate shall comply with such requirements that apply to the Covered Entity in the performance of such obligations.
15. Judicial and Administrative Proceedings. In the event Business Associate receives a subpoena, court or administrative order or other discovery request or
mandate for release of PHI, the affected Covered Entity shall have the right to control Business Associate's response to such request, provided that, such
control does not have an adverse impact on Business Associate’s compliance with existing laws. Business Associate shall notify the Covered Entity of the
request as soon as reasonably practicable, but in any event within seven business days of receipt of such request.
16. Availability of Books and Records. Business Associate hereby agrees to make its internal practices, books, and records available to the Secretary of the
Department of Health and Human Services for purposes of determining compliance with the HIPAA Rules.
17. Breach of Contract by Business Associate. In addition to any other rights a party may have in the Agreement, this Addendum or by operation of law or in
equity, either party may: i) immediately terminate the Agreement if the other party has violated a material term of this Addendum; or ii) at the non-breaching
party’s option, permit the breaching party to cure or end any such violation within the time specified by the non-breaching party. The non-breaching party’s
option to have cured a breach of this Addendum shall not be construed as a waiver of any other rights the non-breaching party has in the Agreement, this
Addendum or by operation of law or in equity.
18. Effect of Termination of Agreement. Upon the termination of the Agreement or this Addendum for any reason, Business Associate shall return to a Covered
Entity or, at the Covered Entity's direction, destroy all PHI received from the Covered Entity that Business Associate maintains in any form, recorded on any
medium, or stored in any storage system. This provision shall apply to PHI that is in the possession of Business Associate, subcontractors, and agents of
Business Associate. Business Associate shall retain no copies of the PHI. Business Associate shall remain bound by the provisions of this Addendum, even
after termination of the Agreement or Addendum, until such time as all PHI has been returned or otherwise destroyed as provided in this Section. For the
avoidance of doubt, de-identified Customer Data shall not be subject to this provision.
19. Injunctive Relief. Business Associate stipulates that its unauthorized use or disclosure of PHI while performing services pursuant to this Adden dum would
cause irreparable harm to a Covered Entity, and in such event, the Covered Entity shall be entitled to institute proceedings in any court of competent
jurisdiction to obtain damages and injunctive relief.
20. Owner of PHI. Under no circumstances shall Business Associate be deemed in any respect to be the owner of any PHI created or received by Business
Associate on behalf of a Covered Entity.
21. Safeguards and Appropriate Use of Protected Health Information. Covered Entity is responsible for implementing appropriate privacy and security
safeguards to protect its PHI in compliance with HIPAA. Without limitation, it is Covered Entity’s obligation to:
21.1. Not include PHI in information Covered Entity submits to technical support personnel through a technical support request or to community support
forums. In addition, Business Associate does not act as, or have the obligations of a Business Associate under the HIPAA Rules with respect to
Customer Data once it is sent to or from Covered Entity outside ESO’s Software over the public Internet; and
21.2. Implement privacy and security safeguards in the systems, applications, and software Covered Entity controls, configures and connects to ESO’s
Software.
22. Third Party Rights. The terms of this Addendum do not grant any rights to any parties other than Business Associate and the Covered Entity.
23. Signatures. The signatures to the Agreement (or the document evidencing the parties’ adoption thereof) indicate agreement hereto and shall be deemed
signatures hereof, whether manual, electronic or facsimile.
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