Loading...
HomeMy WebLinkAboutContract 51560-R3A3 CSC No.51560-R3A3 AMENDMENT NO. 3 AND RENEWAL NO. 3 TO CITY OF FORT WORTH CONTRACT NO. 51560 BETWEEN CITY OF FORT WORTH AND ESO SOLUTIONS This Amendment No. 3 and Renewal No. 3 ("Third Amendment") is entered into by and between the City of Fort Worth (hereafter"City"), a home rule municipal corporation organized under the laws of the State of Texas, with its principal place of business at 200 Texas Street, Fort Worth, Texas, and ESO Solutions, Inc., a Texas corporation (hereafter "ESO"). RECITALS WHEREAS,the City entered into a Master Subscription and License Agreement with ESO and given a City Secretary Contract No. 51560 ("Contract"); and WHEREAS, the Contract provided for a 1 year initial term with 4 one-year renewal options; WHEREAS, the Contract was amended and renewed on April 8, 2019 and December 6, 2019; WHEREAS, City and ESO both wish to renew the Contract for an additional one- year term; and WHEREAS, City and ESO wish to amend the Contract to amend the Sales Order and increase the total annual compensation not to exceed the amount of$10,006.45. NOW THEREFORE, KNOWN ALL BY THESE PRESENT, CITY and ESO, acting herein by the through their duly authorized representatives, enter into this Renewal and Third(3)Amendment, which amends the Contract as follows: 1. The term of the Contract shall be renewed a third(3)time for an additional one- year period beginning on January 1, 2021 and shall end on December 31, 2021. 2. The Contract is hereby amended by replacing Sales Order 79725 in its entirety with the Sales Order attached to this Third Amendment. 3. Total Compensation for this Contract shall not exceed Ten Thousand Six Dollars and Forty-Five Cents ($10,006.45). 4. All other terms,provisions, conditions, covenants and recitals of the Contract not expressly amended herein shall remain in full force and effect. 5. This Third Amendment may be executed in multiple counterparts, each of which shall be an original and all of which shall constitute one and the same instrument. A facsimile copy or computer image, such as a PDF or tiff image, or a signature, shall be treated as and shall have the same effect as an original. 3'd Renewal and 3'd Amendment of CSC 51560 OFFICIAL RECORD CoFW and ESO Solutions IN CITY SECRETARY FT. WORTH, TX IN WITNESS WHEREOF, the parties hereto have executed this agreement, to be effective this day of 120 ACCEPTED AND AGREED: CITY OF FORT WORTH: CONTRACT COMPLIANCE MANAGER: Valerie washingLon By signing I acknowledge that I am the By: Valerie Washington(Jan 8, 02111:32 CST) person responsible for the monitoring and Name: Valerie Washington administration of this contract, including Title: Assistant City Manager ensuring all performance and reporting Date: Jan 8, 2021 requirements. By:Mark Rauscher(Dec 29,2020 23:25 CST) APPROVAL RECOMMENDED: Name: Mark Rauscher Title: Assistant. Fire Director J sDavis(Jan4,202112:O5CST)By. APPROVED AS TO FORM AND Name: Jim Davis LEGALITY: Title: Fire Director ATTEST: ajffjf A6d2C Aaarav By: Christopher stria(Jan8,202110:53CST) i� P�� Name: Christopher Austria By: "Q Title: Assistant City Attorney Name: Mary J. Kayser 4.o�4na14 a FORA�a Title: City Secretary CONTRACT AUTHORIZATION: of°°°°°°°°00 �,�° � M&C:N/A 24089-03-2020(March 19,2020)and �o o�1G 24161-04-2020(April 7,2020) �v° ° 1295: N/A o a P °°°°°°°°°°°° a° * ESO Solutions, Inc. R0&H_4 0a&"P By: Robert Mu nden(Dec 29,2020 12:55 CST) Name: Robert Munden Title: General Counsel&Secretary Date: Dec 29, 2020 OFFICIAL RECORD CITY SECRETARY 3'd Renewal and 3'd Amendment of CSC 51560 FT. WORTH, TX CoFW and ESO Solutions IN at _� 'L CITY SECRETARY CONTRACT NO. �o��o�G�Py 11 V�S MASTER SUBSCRIPTION AND LICENSE AGREEMENT This Master Subscription and License Agreement(the"Agreement")is entered into as of 11':2 t 18("Effective Date"),by and between ESO Solutions,Inc.,a Texas corporation having its principal place of business at 11500 Alterra Parkway,Ste. 100,Austin,TX 78758 ("ESO")and the City of Fort Worth("Customer")having its principal place of business at 200 T.—SL.Fort Wonh.TX 76102.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 with certain technology products and/or services and that Customer will pay to 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 set forth in the pages that follow. GENERAL TERMS AND CONDITIONS 1. DEFINITIONS.Capitalized terms not otherwise defined in this 1.11. "Protected Health Information"or"PHI"shall have the Agreement shall have the meanings below: meaning set forth in HIPAA.All references herein to PHI shall be construed to include electronic PHI,or ePHI,as 1.1. "Add-On Software"means any complementary software that tern is defined by HIPAA. components or reporting service(s)that ESO makes available to customer through its Licensed Software, 1,12. "Reporting Services"means collectively the different Interoperability Software or SaaS. programs or tools ESO provides for Customer to generate compilations of data,including but not limited to ad-hoc 1.2. "Addendum"or"Addenda"means a writing addressing an reports,analytics,benchmarking or any other reporting tool order of a specific set of products or services executed by provided through the Software. authorized representatives of each party.An Addendum may be(a)a Sales Order(b)a Statement of Work,or(c) 1.13. "Sales Order"means a signed writing whereby Customer is another writing the parties intend to be incorporated by purchasing a license or access to Software,Professional reference into this Agreement. Services or other products and services from ESO. 1.3. "Customer Data"means data in electronic form managed or 1.14. "SaaS"means software-as-a-service that ESO hosts stored by ESO,which is entered into or transmitted through (directly or indirectly)for Customer's use.For the the Software. avoidance of doubt,SaaS does not include Licensed Software,but does include Add-on Software and 1.4. "Deliverable"means software,report,or other work product Interoperability Software. created pursuant to a Statement of Work. 1.15. "Software"means any computer program,programming or 1.5. "Documentation"means user guides,operating manuals, modules specified in each Sales Order or SOW.For the and written specifications regarding the Software covered avoidance of doubt,Add-on Software,SaaS; by this Agreement. Interoperability Software;and Licensed Software shall collectively be referred to as Software. 1.6. "Feedback"refers to any suggestion or idea for improving or otherwise modifying ESO's products or services. 1,16. "Statement of Work"or"SOW'refers to an Addendum in which Customer has ordered Professional Services or a LT `Intellectual Property"means trade secrets,copyrightable Deliverable from ESO. subject matter,patents,and patent applications and other proprietary information,activities,and any ideas,concepts, 1.17. "Support Services"means those services described in innovations,inventions and designs. Exhibit A. 1.8. `Interoperability Software"means software-as-a-service 1.18. "User"means any individual who uses the Software on that ESO hosts(directly or indirectly)for Customer to Customer's behalf or through Customer's account or exchange healthcare data with others.Some of ESO's passwords,whether authorized or not. Reporting Services may be made available to Customer via the Interoperability Software.For the avoidance of doubt, 2. SALES ORDER.During the Term of this Agreement,Customer Interoperability Software does not include Add-on may order Software from ESO by signing a Sales Order, Software,Licensed Software or SaaS. Customer's license to Licensed Software and its subscription to SaaS are set forth below.Each such Sales Order is incorporated 1.9. "Licensed Software"means on premise software that ESO herein by reference. provides to Customer for its reproduction and use.For the avoidance of doubt,Licensed Software does not include 3. LICENSE/SUBSCRIPTION TO SOFTWARE Add-on Software,Interoperability Software or SaaS. 3.1. Grant of License.In the case of Licensed Software,during 1.10. "Professional Services"means professional services that a the Tenn of this Agreement ESO hereby grants Customer a Statement of Work calls on ESO to provide. limited,non-exclusive,non-transferable,non-assignable, revocable license to copy and use the Licensed Software,in such quantities as are set forth on the applicable Sales Order ESO—MSLA v.20170519 Confidential&Proprietary CITY SECRETARY FT. WORTH,TX and as necessary for Customer's internal business purposes; Outage,excluding Scheduled Downtime(as defined below), provided that,Customer complies with the Restrictions on results in the service level uptime falling below 99%for Use(Section 3.3)and other limitations and obligations three consecutive months or three months in any rolling contained in this Agreement.Such internal business twelve-month period(collectively,"Uptime Commitment"), purposes do not include reproduction or use by any parent, then Customer shall have the option to immediately subsidiary,or affiliate of Customer,or any other third party, terminate this Agreement;and ESO will return any prepaid, and Customer shall not permit arty such use. unearned Fees to Customer or Third Party Payer,as applicable.This is Customer's sole remedy for ESO's 3.2. Grant of Subscription.In the case of SaaS,during the term breach of the Uptime Commitment. of this Agreement Customer may access and use the SaaS, in such quantities as are set forth on the applicable Sales 4.3. Scheduled Downtime. In the event ESO determines that it Order;provided that,Customer complies with the is necessary to intentionally interrupt the SaaS or that there Restrictions on Use(Section 3.3)and other limitations is a potential for the SaaS to be interrupted for the contained in this Agreement. performance of system maintenance(collectively, "Scheduled Downtime"),ESO will use good-faith efforts to 3.3. Restrictions on Use.Except as provided in this Agreement notify Customer of such Scheduled Downtime at least 72 or as otherwise authorized by ESQ Customer has no right hours in advance and will ensure Scheduled Downtime to:(a)decompile,reverse engineer,disassemble,print,copy occurs during non-peak hours(midnight to 6 a.m.Central or display the Software or otherwise reduce the Software to Time). In no event shall Scheduled Downtime constitute a a human perceivable form in whole or in part;(b)publish, failure of performance by ESO. release,rent,lease,loan,sell,distribute or transfer the Software to another person or entity;(c)reproduce the 4.4. Support and Updates. During the Term of this Agreement, Software for the use or benefit of anyone other than ESO shall provide to Customer the Support Services,in Customer;(d)alter,modify or create derivative works based accordance with Exhibit A.Exhibit A is incorporated herein upon the Software either in whole or in part;or(e)use or by reference. permit the use of the Software for commercial time-sharing arrangements or providing service bureau,data processing, 5. FEES rental,or other services to any third party.The rights granted under the provisions of this Agreement do not constitute a sale of the Software.ESO retains all right,title, 5.1. Fees.In consideration of the rights granted and except in the and interest in and to the Software,including without event there is a Third-Party Payer(as defined below), limitation all software used to provide the Software and all Customer agrees to pay ESO the fees for the Software graphics,user interfaces,logos and trademarks reproduced and/or Professional Services as set forth in the Sales through the Software,except to the limited extent set forth Order(s)or SOW(s)(collectively,"Fees").The Fees are in this Agreement.This Agreement does not grant non-cancelable and non-refundable.Customer shall pay all Customer any intellectual property rights in the Software or invoices within thirty(30)days of receipt.In the event a any of its components,except to the limited extent that this third-party is paying some or all of the Fees on behalf of Agreement specifically sets forth Customer's rights to Customer("Third-Party Payer"),the Sales Order will state access,use,or copy the Software during the Term of this that payment obligation.The parties agree that Customer Agreement.Customer recognizes that the Software and its may replace the Third-Party Payer by submitting to ESO components are protected by copyright and other laws. written notice memorializing the change.However,no such change shall be made until the then-current Term's renewal. 3.4. Delivery.In the case of Licensed Software,ESO shall Moreover,Customer is responsible for payment in the event �� the Third-Party Payer does not pay the Fees and Customer provide the Licensed Software to Customer through a continues using the Software.For the avoidance of doubt, reasonable system of electronic download.In the case of any such Addenda will become part of this Agreement. SaaS,ESO shall grant Customer access to SaaS promptly after the Effective Date. 5.2. Uplift on Renewal.Except in the instance of Overages(as defined below),Fees for Software,which recur annually, 3.5. Third-Party Software.Software may incorporate software shall increase by three percent(3%)each year this and other technology owned and controlled by third parties Agreement is in effect. ("Third-Party Software"). ESO is licensed to sublicense and distribute Third-Party Software.All Third-Party Software falls under the scope of this Agreement. 5.3. Taxes and Fees. This Agreement is exclusive of all taxes Moreover,ESO neither accepts liability,nor warrants the and credit card processing fees,if applicable.Customer is functionality,reliability or accuracy of Third-Party responsible for and will remit(or will reimburse ESO upon Software,including but not limited to third-party mapping ESO's request)all taxes of any kind,including sales,use, applications. duty,customs,withholding,property,value-added,and other similar federal,state or local taxes(other than taxes 4. HOSTING,SLA&SUPPORT SERVICES based on ESO's income)related to this Agreement. 5.4. Appropriation of Funds.If Customer is a city,county or 4.1. Hosting&Management.Customer shall be solely other government entity,the parties accept and agree that responsible for hosting and managing the Licensed Customer has the right to terminate the Agreement at the Software.ESO shall be responsible for hosting and end of the Customer's fiscal term for a failure by managing the SaaS. Customer's governing body to appropriate sufficient funds for the next fiscal year.Notwithstanding the foregoing,this 42. Service Level Ag ment.No credits shall be given in the provision shall not excuse Customer from past payment event Customer's access to SaaS is delayed,impaired or obligations or other Fees earned and unpaid.Moreover, otherwise disrupted(collectively,an"Outage").If such ESO—MSLA v.20180124 Confidential&Proprietary Page 2 Customer agrees to provide ESO reasonable documentation 6.4.4. Termination of this Agreement is without prejudice evidencing such non-appropriation of funds. to any other right or remedy of the parties and shall not release either party from any liability(a)which 5.5. Usage.ESO may regularly monitor Customer's use of the at the time of termination,has already accrued to Software and charge Customer a higher annual Fee if the other party,(b)which may accrue in respect of Customer's usage has increased beyond the tier contracted any act or omission prior to termination,or(c)from for in the current Sales Order or otherwise assess additional any obligation which is intended to survive fees(for example,Customer is uploading more records into termination. the Software than it has previously contracted for) (collectively,"Overages").ESO may invoice annually for 6.5. Delivery of Data. If Customer requests its data within sixty Overages after providing Customer reasonable notice that (60)days of expiration or termination of this Agreement, Customer is incurring Overages.Notwithstanding the ESO will provide Customer access to Customer Data in a foregoing,it is solely Customer's responsibility to report searchable.pdf format within a reasonable time frame Overages to ESO in a timely manner. thereafter.ESO is under no obligation to retain Customer Data more than sixty(60)days after expiration or 6. TERM AND TERMINATION termination of this Agreement. 6.1. Term.The term of this Agreement(the"Term")shall 7• REPRESENTATIONS AND WARRANTIES commence on the Effective Date and continue for the period set forth in the applicable Sales Order or,if none,for one 7.1. Material Performance of Software.ESO warrants and year.Thereafter,the Term will renew for successive one- represents that the Software will materially perform in year periods,unless either party opts out of such renewal by accordance with the Documentation provided by ESO,if providing at least sixty days'written notice before the any. scheduled renewal date.The license period or subscription period shall begin on the date specified in the applicable 72. Wamplyof Services.ESO warrants that its personnel are Sales Order,and this Agreement shall automatically be adequately trained and competent to perform Professional extended to ensure that the contract Term is coterminous Services and/or Support Services and that each will be with the subscription period or license period,as applicable. performed in a professional and workmanlike manner. 6.2. Termination for Cause.Either party may terminate this 7.3. Due Authority.Each parry's execution,delivery and Agreement or any individual Sales Order for the other performance of this Agreement and each agreement or parry's material breach by providing written notice.The instrument contemplated by this Agreement has been duly breaching party shall have thirty days from receipt to cure authorized by all necessary corporate or government action. such breach to the reasonable satisfaction of the non- breaching party. 7.4. Customer Cooperation.Customer agrees to reasonably and timely cooperate with ESO,including but not limited to 6.3. Bankruptcy solvency.This Agreement and any applicable providing ESO with reasonable access to its equipment, Sales Order may be terminated immediately upon the software,data and using current operating system(s). following:(a)the institution of insolvency,receivership or bankruptcy proceedings or any other proceedings for the settlement of debts of the other party;(b)the making of an 8. DISCLAIMER OF WARRANTIES.EXCEPT AS assignment for the benefit of creditors by the other party;or OTHERWISE PROVIDED IN SECTION 7,ESO HEREBY (c)the dissolution of the other party. DISCLAIMS ALL WARRANTIES,EXPRESS OR IMPLIED, INCLUDING,WITHOUT LIMITATION,ALL IMPLIED WARRANTIES OF MERCHANTABILITY,FITNESS FOR A 6.4. Effect of Termination. PARTICULAR PURPOSE,PERFORMANCE,SUITABILITY, TITLE,NON-INFRINGEMENT,OR ANY IMPLIED 6.4.1. If this Agreement or any Sales Order is terminated WARRANTY ARISING FROM STATUTE,COURSE OF by Customer prior to the expiration of its then- DEALING,COURSE OF PERFORMANCE,OR USAGE OF current term,for any reason other than ESO's TRADE.WITHOUT LIMITING THE GENERALITY OF THE breach,Customer agrees to immediately remit all FOREGOING:(a)ESO DOES NOT REPRESENT OR unpaid Fees as set forth on the applicable Sales WARRANT THAT THE SOFTWARE WILL PERFORM Order equal to the Fees that will become due during WITHOUT INTERRUPTION OR ERROR;AND(b)ESO the remaining Term. DOES NOT REPRESENT OR WARRANT THAT THE SOFTWARE IS SECURE FROM UNAUTHORIZED 6.4.2. If Customer terminates this Agreement or any Sales INTRUSION OR THAT CUSTOMER DATA WILL REMAIN Order as a result of ESO's breach,then to the extent PRIVATE OR SECURE.CUSTOMER THEREFORE that Customer has prepaid any Fees,ESO shall ACCEPTS THE SOFTWARE"AS-IS"AND"AS refund to Customer any prepaid Fees on a pro-rata AVAILABLE." basis to the extent such Fees are attributable to the period after the termination date. 9. CONFIDENTIALITY 6.4.3. Upon termination of this Agreement or any Sales 9.1. "Confidential Information"refers to the following items:(a) Order,Customer shall cease all use of the Software any document marked"Confidential";(b)any information and delete,destroy or return all copies of the orally designated as"Confidential"at the time of disclosure, Documentation and Licensed Software in its provided the disclosing party confirms such designation in possession or control,except as required by law. writing within five(5)business days;(c)the Software and Documentation,whether or not designated confidential;and ESO—MSLA v.20180124 Confidential&Proprietary Page 3 (d)any other nonpublic,sensitive information reasonably to give the disclosing party the opportunity to object to the considered a trade secret or otherwise confidential. disclosure and/or to seek a protective order.The receiving Notwithstanding the foregoing,Confidential Information party shall reasonably cooperate in this effort.In addition, does not include information that:(i)is in the other parry's Customer may disclose the contents of this Agreement possession at the time of disclosure;(ii)is independently solely for the purpose of completing its review and approval developed without use of or reference to Confidential processes under its local rules,if applicable. Information;(iii)becomes known publicly,before or after disclosure,other than as a result of a parry's improper 10. INSURANCE.Throughout the term of this Agreement,and for a action or inaction;(iv)is approved for release in writing by period of at least three(3)years thereafter for any insurance the disclosing party;(v)is required to be disclosed by law, written on a claims-made form,ESO shall maintain in effect the or(vi)PHI,which shall be governed by the Business insurance coverage described below: Associate Agreement rather than this Section. 10.1. Commercial general liability insurance with a minimum of 9.2. Nondisclosure.The parties shall not use Confidential $1 million per occurrence and$1 million aggregate; Information for any purpose other than to fulfill the terms of this Agreement(the"Purpose").Each party:(a)shall ensure that its employees or contractors are bound by 10.2. Commercial automobile liability insurance covering use of confidentiality obligations no less restrictive than those all non-owned and hired automobiles with a minimum limit contained herein and(b)shall not disclose Confidential of$1 million for bodily injury and property damage Information to any other third party without prior written liability; consent from the disclosing party.Without limiting the generality of the foregoing,the receiving party shall protect 10.3. Worker's compensation insurance and employer's liability Confidential Information with the same degree of care it insurance or any alternative plan or coverage as permitted uses to protect its own confidential information of similar or required by applicable law,with a minimum employer's nature and importance,but with no less than reasonable liability limit of$1 million each accident or disease;and care.A receiving party shall promptly notify the disclosing party of any misuse or misappropriation of Confidential 10.4. Computer processor/computer professional liability Information of which it is aware. insurance("Technology Errors and Omissions")covering the liability for financial loss due to error,omission or 9.3. Disclosure of ESO's Security Policies.Customer negligence of ESO,and Privacy and Network Security acknowledges that any information provided by ESO insurance("Cyber")covering losses arising from a pertaining to ESO's security controls,policies,procedures, disclosure of confidential information,with a combined audits,or other information concerning ESO's internal aggregate amount of$1 million. security posture are considered Confidential Information and shall be treated by Customer in accordance with the 11. INDEMNIFICATION terms and conditions of this Agreement. 11.1. IP Infrin eg ment.ESO shall defend and indemnify Customer 9.4. Injunction.Customer agrees that breach of this Section from any damages,costs,liabilities,expenses(including would cause ESO irreparable injury,for which monetary reasonable and actual attorney's fees)("Damages")actually damages would not provide adequate compensation,and incurred or finally adjudicated as to any third-party claim or that in addition to any other remedy,ESO will be entitled to action alleging that the Software delivered pursuant to this injunctive relief against such breach or threatened breach, Agreement infringe or misappropriate any third parry's without ESO proving actual damage or posting a bond or patent,copyright,trade secret,or other intellectual property other security. rights enforceable in the applicable jurisdiction(each an "Indemnified Claim").If an Indemnified Claim under this 9.5. Termination&Return.With respect to each item of Section occurs or if ESO determines that an Indemnified Confidential Information,the obligations of nondisclosure Claim is likely to occur,ESO shall at its option:(a)obtain a will terminate three(3)years after the date of disclosure; right for Customer to continue using such Software;(b) provided that,such obligations related to Confidential modify such Software to make it a non-infringing Information constituting ESO's trade secrets shall continue equivalent or(c)replace such Software with a non- so long as such information remains subject to trade secret infringing equivalent.If(a),(b),or(c)above are not protection pursuant to applicable law.Upon termination of reasonably available,either party may,at its option, this Agreement,a party shall return all copies of terminate this Agreement and/or relevant Sales Order.ESO Confidential Information to the other or certify,in writing, will refund any pre-paid Fees on a pro-rata basis for the the destruction thereof allegedly infringing Software provided.Notwithstanding the foregoing,ESO shall have no obligation hereunder for 9.6. Retention of Riehts.This Agreement does not transfer any claim resulting or arising from(x)Customer's breach of ownership of Confidential Information or grant a license this Agreement;(y)modifications made to the Software that thereto. were not performed or provided by or on behalf of ESO or (z)the combination,operation or use by Customer or anyone acting on Customer's behalf of the Software in 9.7. Open Records and Other Laws.Notwithstanding anything connection with a third-party product or service(the in this Section to the contrary,the parties expressly combination of which causes the infring ement).This acknowledge that Confidential Information may be Section I 1 states ESO's sole obligation and liability,and disclosed if such Confidential Information is required to be Customer's sole remedy,for potential or actual intellectual disclosed by law,a lawful public records request,or judicial property infringement by the Software. 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 11.2. Indemnification Procedures. Upon becoming aware of any matter which is subject to the provisions of Sections 11.1(a ESO—MSLA v.20180124 Confidential&Proprietary Page 4 "Claim"),the party seeking indemnification(the CONSIDERATION FOR ESO'S SOFTWARE AND "Indemnified Party")must give prompt written notice of SERVICES TO CUSTOMER,AND SUCH such Claim to the other party(the"Indemnifying Party"), LIMITATIONS WILL APPLY NOTWITHSTANDING accompanied by copies of any written documentation THE FAILURE OF THE ESSENTIAL PURPOSES OF regarding the Claim received by the Indemnified Party. The ANY LIMITED REMEDY AND EVEN IF A PARTY Indemnifying Party shall compromise or defend,at its own HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH expense and with its own counsel,arty such Claim. The LIABILITIES. Indemnified Party will have the right,at its option,to participate in the settlement or defense of any such Claim, 12.5. THIS SECTION 12 SHALL SURVIVE EXPIRATION OR with its own counsel and at its own expense;provided, TERMINATION OF THE AGREEMENT. however,that the Indemnifying Party will have the right to control such settlement or defense. The Indemnifying Party 13. CUSTOMER DATA&PRIVACY will not enter into any settlement that imposes any liability or obligation on the Indemnified Party without the Indemnified Parry's prior written consent. The parties will 13.1. Ownership of Data&Reports.As between ESO and cooperate in any such settlement or defense and give each Customer,all Customer Data shall be owned by Customer. other full access to all relevant information,at the Without limiting the foregoing,ESO will own all right,title Indemnifying Parry's expense. and interest in all Intellectual Property in any aggregated and de-identified reports,summaries,compilations,analysis 12. LIMITATION OF LIABILITY or other information made available through ESO's Reporting Services.If subscribed to by Customer,ESO 12.I. LIMITATION OF DAMAGES.UNDER NO grants to Customer a limited,non-exclusive license to use CIRCUMSTANCES SHALL ESO OR CUSTOMER BE its Reporting Services for Customer's internal purposes only during the Term of this Agreement.No other third LIABLE FOR ANY CONSEQUENTIAL,INDIRECT, party shall rely on ESO's Reporting Services or the contents SPECIAL,PUNITIVE OR INCIDENTAL DAMAGES, thereof.ESO disclaims all liability for any damages related INCLUDING CLAIMS FOR DAMAGES FOR LOST thereto.Customer acknowledges and agrees that any such PROFITS,GOODWILL,USE OF MONEY, license expires upon the expiration or termination of the INTERRUPTED OR IMPAIRED USE OF THE applicable Sales Order granting a license to ESO's SOFTWARE,AVAILABILITY OF DATA,STOPPAGE Reporting Services. OF WORK OR IMPAIRMENT OF OTHER ASSETS, I2.2. LIMITATION OF LIABILITY.WITH THE 13.2. Use of Customer Data.Unless it receives Customer's prior EXCEPTION OF SECTION 12.3(EXCEPTIONS TO THE written consent (a)shall not access,process, or LIMITATION OF LIABILITY),ESO'S MAXIMUM otherwise use Customer Data;and(b)shall not intentionally AGGREGATE LIABILITY FOR ALL CLAIMS OF grant any third-party access to Customer Data,including LIABILITY ARISING OUT OF OR IN CONNECTION without limitation are s other customers,except WITH THIS AGREEMENT,SHALL NOT EXCEED THE subcontractors that are subject to a reasonable nondisclosure FEES PAID BY CUSTOMER OR ON BEHALF OF agreement authorized participants in the case of Interoperabitility Software.Notwithstanding the foregoing, CUSTOMER IN THE CASE OF A THIRD-PARTY ESO may use and disclose Customer Data to fulfill its PAYER UNDER THE APPLICABLE SALES ORDER OR obligations under this Agreement or as required by SOW GIVING RISE TO THE CLAIM WITHIN THE applicable law or by proper legal or governmental authority. PRECEDING 12-MONTH PERIOD. ESO shall give Customer prompt notice of any such legal or governmental demand and reasonably cooperate with 12.3. EXCEPTIONS TO LIMITATION OF LIABILITY. Customer in any effort to seek a protective order or NOTWITHSTANDING SECTION 12.2,A PARTY'S otherwise to contest such required disclosure,at Customer's LIABILITY SHALL BE LIMITED TO THE AMOUNT expense. OF INSURANCE COVERAGE REQUIRED BY SECTION 10 FOR THE FOLLOWING TYPES OF 13.3. Anoamized Data.Notwithstanding any provision herein, CLAIMS:(I)CLAIMS ARISING FROM A PARTY'S ESO may use,reproduce,license,or otherwise exploit GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; Anonymized Data;provided that Anonymized Data does AND(II)CLAIMS ARISING FROM A BREACH OF not contain and is not PHI.("Anonymized Data"refers to CONFIDENTIAL INFORMATION,INCLUDING A Customer Data with the following removed:personally BREACH OF PROTECTED HEALTH INFORMATION. identifiable information and the names and addresses of Customer and any of its Users and/or Customer's clients.) 12.4. THE FOREGOING LIMITATIONS,EXCLUSIONS, DISCLAIMERS SHALL APPLY REGARDLESS OF I3.4. Risk of Exposure.Customer recognizes and agrees that WHETHER THE CLAIM FOR SUCH DAMAGES IS hosting data online involves risks of unauthorized BASED IN CONTRACT,WARRANTY,STRICT disclosure and that,in accessing and using the SaaS, LIABILITY,NEGLIGENCE,TORT OR OTHERWISE. Customer assumes such risks.Customer has sole INSOFAR AS APPLICABLE LAW PROHIBITS ANY responsibility for obtaining,maintaining,and securing its LIMITATION HEREIN,THE PARTIES AGREE THAT connections to the Internet.ESO makes no representations SUCH LIMITATION SHALL BE AUTOMATICALLY to Customer regarding the reliability,performance or MODIFIED,BUT ONLY TO THE EXTENT SO AS TO security of any network or provider. MAKE THE LIMITATION PERMITTED TO THE FULLEST EXTENT POSSIBLE UNDER SUCH LAW. THE PARTIES AGREE THAT THE LIMITATIONS SET 14. FEEDBACK RIGHTS&WORK PRODUCT FORTH HEREIN ARE AGREED ALLOCATIONS OF RISK CONSTITUTING IN PART THE 14.1. Feedback Rights.ESO does not agree to treat as confidential any Feedback that Customer provides to ESO. ESO—MSLA v.20180124 Confidential&Proprietary Page 5 Nothing in this Agreement will restrict ESO's right to use, 17.1. Independent Contractors.The parties are independent profit from,disclose,publish,keep secret,or otherwise contractors.Neither party is the agent of the other,and exploit Feedback,without compensation or crediting neither may make commitments on the other's behalf.The Customer.Feedback will not constitute Confidential parties agree that no ESO employee or contractor is or will Information,even if it would otherwise qualify as such be considered an employee of Customer. pursuant to Section 9(Confidential Information). 17.2. Notices.Notices provided under this Agreement must be in 14.2. Work Product Ownership.In the event Customer hires ESO writing and delivered by(a)certified mail,return receipt to perform Professional Services,ESO alone shall hold all requested to a parry's principal place of business as forth in right,title,and interest to all proprietary and intellectual the recitals on page 1 of this Agreement,(b)hand delivered, property rights of the Deliverables(including,without (c)facsimile with receipt of a"Transmission Confirmed" limitation,patents,trade secrets,copyrights,and acknowledgment,(d)e-mail,or(e)delivery by a reputable trademarks),as well as title to any copy of software made overnight carrier service.In the case of delivery by by or for Customer(if applicable).Customer hereby facsimile or e-mail,the notice must be followed by a copy explicitly acknowledges and agrees that nothing in this of the notice being delivered by a means provided in(a),(b) Agreement or a separate SOW gives the Customer any or(e). The notice will be deemed given on the day the right,title,or interest to the intellectual property or notice is received. proprietary know-how of the Deliverables. 17.3. Merger Clause. In entering into this Agreement,neither 15. GOVERNMENT PROVISIONS party is relying upon any representations or statements of the other that are not fully expressed in this Agreement; 15.1. Compliance with Laws. Both parties shall comply with and rather each party is relying on its own judgment and due give all notices required by all applicable federal,state and diligence and expressly disclaims reliance upon any local laws,ordinances,rules,regulations and lawful orders representations or statement not expressly set forth in this of any public authority bearing on the performance of this Agreement.In the event the Customer issues a purchase Agreement. 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 15.2. Business Associate Addendum.The parties agree to the that any such writing is for the Customer's internal terms of the Business Associate Addendum attached hereto purposes only,and that any terms,provisions,and as Exhibit B and incorporated herein by reference. conditions contained therein shall in no way modify this Agreement. 15.3. Equal Opportunity.The parties shall abide by the requirements of 41 CFR 60-1.4(a),60-300.5(a)and 60- 17.4. Severabili .To the extent permitted by applicable law,the 741.5(a),and the posting requirements of 29 CFR Part 471, parties hereby waive any provision of law that would render appendix A to subpart A,if applicable.'These regulations any clause of this Agreement invalid or otherwise prohibit discrimination against qualified individuals based unenforceable in any respect.If a provision of this on their status as protected veterans or individuals with Agreement is held to be invalid or otherwise unenforceable, disabilities and prohibit discrimination against all such provision will be interpreted to fulfill its intended individuals based on their race,color,religion,sex,sexual purpose to the maximum extent permitted by applicable orientation,gender identity or national origin. law,and the remaining provisions of this Agreement will continue in full force and effect. 15.4. Excluded Parties List.ESO agrees to immediately report to Customer if an employee or contractor is listed by a federal 17 5. Assienment&Successors.Neither party may assign, agency as debarred,excluded or otherwise ineligible for subcontract,delegate or otherwise transfer this Agreement participation in federally funded health care programs. or any of its rights or obligations hereunder,nor may it contract with third parties to perform any of its obligations 15.5. Procurement.Customer agrees that terms and conditions of hereunder except as contemplated in this Agreement, this Agreement may be utilized by other governmental without the other party's prior written consent. Except that entities should said governmental entities desire to benefit either party may,without the prior consent of the other, from Customer's procurement process. assign all its rights under this Agreement to(i)a purchaser of all or substantially all assets related to this Agreement,or I& PHI ACCURACY&COMPLETENESS (ii)a third party participating in a merger,acquisition,sale of assets or other corporate reorganization in which either 16.1. ESO provides the Software to allow Customer(and its part'is participating(collectively,a"Change in Control"), respective Users)to enter,document,and disclose Customer provided however,that the non-assigning party is given Data,and as such,ESO gives no representations or notice of the Change in Control. guarantees about the accuracy or completeness of Customer Data(including PHI)entered,uploaded or disclosed 17.6. Modifications and Amendments.This Agreement may not through the Software. be amended except through a written agreement signed by authorized representatives of each party. 16.2. Customer is solely responsible for arry decisions or actions taken involving patient care or patient care management, 17.7. Force Maieure.No delay,failure,or default,other than a whether those decisions or actions were made or taken failure to pay Fees when due,will constitute a breach of this using information received through the Software. Agreement to the extent caused by acts of war,terrorism, hurricanes,earthquakes,other acts of God or of nature, 17. MISCELLANEOUS strikes or other labor disputes,riots or other acts of civil disorder,embargoes,or other causes beyond the performing ESO—MSLA v.20180124 Confidential&Proprietary Page 6 parry's reasonable control(collectively,"Force Majeure"). other U.S.governmental entity,then any Dispute shall be In such event,however,the delayed party must promptly brought exclusively in the state or federal courts located in provide the other party notice of the Force Majeure.The the county where Customer is located. delayed parry's time for performance will be excused for the duration of the Force Majeure,but if the event last 17.14. Bench Trial.The parties agree to waive,to the maximum longer than thirty(30)days,the other party may extent permitted by law,any right to ajury trial with respect immediately terminate the applicable Sales Order. to any Dispute. 17.8. Marketing.Customer hereby grants ESO a license to 17.15. No Class Actions.NEITHER PARTY SHALL BE include Customer's primary logo in any customer list or ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY press release announcing this Agreement;provided ESO OR AGAINST THE OTHER CUSTOMERS,OR PURSUE first submits each such press release or customer list to ANY CLAIM AS A REPRESENTATIVE OR CLASS Customer and receives written approval,which approval ACTION OR IN A PRIVATE ATTORNEY GENERAL shall not be unreasonably withheld.Goodwill associated CAPACITY. with the logo inures solely to Customer,and ESO shall take no action to damage the goodwill associated with the logo or with Customer. 17.16. Limitation Period.NEITHER PARTY,shall be liable for any claim brought more than 2 years after the cause of action for such claim first arose. 17.9. Waiver&Breach.Neither party will be deemed to have waived any of its rights under this Agreement unless it is an explicit written waiver made by an authorized 17.17. Dispute Resolution.Customer and ESO will attempt to representative.No waiver of a breach of this Agreement resolve any Dispute through negotiation or by utilizing a will constitute a waiver of any other breach of this mediator agreed to by the parties,rather than through Agreement. litigation.Negotiations and mediations will be treated as confidential.If the parties are unable to reach a resolution within thirty(30)days of notice of the Dispute to the other 17.10. Survival of Terms.Unless otherwise stated,all of ESO's party,the parties may pursue all other courses of action and Customer's respective obligations,representations and available at law or in equity. 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 17.18. Technology Export.Customer shall not:(a)permit any third termination of this Agreement. party to access or use the Software in violation of any U.S. law or regulation;or(b)export any software provided by ESO or otherwise remove it from the United States except 17.11. Ambiguous Terms.This Agreement will not be construed in compliance with all applicable U.S.laws and regulations. against any party by reason of its preparation. Without limiting the generality of the foregoing,Customer shall not permit any third party to access or use the 17.12. Governing Law.This Agreement,any related Addenda,and Software in,or export such software to,a country subject to any CLAIM,DISPUTE,OR CONTROVERSY a United States embargo(as of the Effective Date-Cuba, (WHETHER IN CONTRACT,TORT,OR OTHERWISE, Iran,North Korea,Sudan,and Syria). INCLUDING STATUTORY,CONSUMER PROTECTION,COMMON LAW,INTENTIONAL TORT 17.19. Order of Precedence.In the event of any conflict between AND EQUITABLE CLAIMS)BETWEEN CUSTOMER this Agreement,Addenda or other attachments incorporated AND ESO,including their affiliates,contractors,and herein,the following order of precedence will govern:(1) agents,and each of their respective employees,directors, the General Terms and Conditions;(2)any Business and officers(a"Dispute")will be governed by the laws of Associate Agreement;(3)the applicable Sales Order or the State of Texas,without regard to conflicts of law. SOW,with most recent Sales Order or SOW taking Notwithstanding the foregoing,in the event Customer is a precedence over earlier ones;and(4)any ESO policy U.S.city,county,municipality or other U.S.governmental posted online,including without limitation its privacy entity,then any Dispute will be governed by the law of state policy.No amendments incorporated into this Agreement where Customer is located,without regard to its conflicts of after execution of the General Terms and Conditions will law.The UN Convention for the International Sale of amend such General Terms and Conditions unless it Goods and the Uniform Computer Information Transactions specifically states its intent to do so and cites the section or Act will not apply.In any Dispute,each party will bear its sections amended. own attorneys'fees and costs.The parties expressly waive any statutory right to attorneys'fees under§38.001 of the Texas Civil Practices and Remedies Code or other similar 17.20. CountMarts.This Agreement may be executed in one or state laws. more counterparts.Each counterpart will be an original,and all such counterparts will constitute a single instrument. 17.13. Venue.The parties agree that any Dispute shall be brought I7.21. Sip-natures.Electronic signatures at this Agreement or on exclusively in the state or federal courts located in Travis any Addendum County,Texas.The parties agree to submit to the personal copies of signatures sent via electronic jurisdiction of such courts.Notwithstanding the foregoing, means)are the equivalent of handwritten signatures. in the event Customer is a U.S.city,county,municipality or ESO—MSLA v.20180124 Confidential&Proprietary Page 7 IN WITNESS WHEREOF,the parties have executed this Agreement as of the Effective Date. ESO Solutions,Inc. Customer )OU"i [Signature] `"'� [Signature] Chris Ddhe [Printed Name] jprinw Name]CEO&President A-eS[s�-cuynf ff anal e,4/ [Title] [Title] OFFICIAL RE 4GRV, ESO—MSLA v.20180124 Confidential&Proprietary CITY SEGWARY FT WORTH,TX EXHIBIT A 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 ofthe Workaround or Fix. 1.4. "Online Support"means information available through ESO's website(www.csosolutions coin),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 requests 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(b)E-mail Support,telephone support,and Online Support.ESO may use multiple forms of communication for purposes of submitting periodic status reports to Customer, ESO—MSLA v.20180124 Confidential&Proprietary Page 9 including but not limited to,messages in the Software,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. 3. ERROR PRIORITY LEVELS.Customer will report all Errors to ESO via e-mail(supportlwesosolutions.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 I 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 forty-eight 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 responsible for 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 arty 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. ESO—MSLA v.20180124 Confidential&Proprietary Page 10 EXHIBIT B HIPAA BUSINESS ASSOCIATE ADDENDUM ESO Solutions,Inc.("Business Associate")and Customer agree that this HIPAA Business Associate Addendum("Addendum")is entered into for the benefit of Customer,which may be a covered entity("Covered Entity")under the HIPAA Rules(as defined below)and that this Addendum is effective as of the Effective Date of the Agreement. Pursuant to Business Associate's performance under the Agreement or other documented arrangements between Business Associate and Covered Entity,whether in effect as of the Effective Date or which become effective at any time during the term of this Addendum,Business Associate may perform functions or activities involving the creation,use,access,transmission or disclosure of PHI on behalf of the Covered Entity,and therefore,Business Associate may function as a business associate.The parties,therefore,agree to the following terms and conditions set forth in this Addendum for the scope of Business Associate's activities involving Covered Entity's PHI,if any. 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 PIII 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.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(5)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. ESO—MSLA v.20180124 Confidential&Proprietary Page 11 11. Amendment of PHI.Within five(5)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(5)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. 13. Accounting of Disclosures.Within five(5)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(7)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. Termination for Cause.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 parry'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 part'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. Imunctive Relief.Business Associate stipulates that its unauthorized use or disclosure of PHI while performing services pursuant to this Addendum 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. Data Usage Provision.Business Associate may aggregate and de-identify PHI and/or create limited data sets for use in research,evaluation and for publication or presentation of patient care quality improvement practices and outcomes.The Parties understand and agree that such aggregated and de-identified data is no longer PHI subject to the provisions of the HIPAA Rules and agree that Business Associate may retain such limited data sets indefinitely thereafter.Business Associate agrees that it will comply with all terns of this Agreement with respect to the limited data sets and that it shall not re-identify or attempt to re-identify the information contained in the limited data set,nor contact any of the individuals whose information is contained in the limited data set. 22. No Warranty. PHI IS PROVIDED SOLELY ON AN"AS IS"BASIS. THE PARTIES DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED,INCLUDING BUT NOT LIMITED TO,IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. 23. 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: 23.1. 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 ESO—MSLA v.20180124 Confidential&Proprietary Page 12 23,2. Implement privacy and security safeguards in the systems,applications,and software Covered Entity controls,configures and connects to ESO's Software. 24. Ibird�,The terms of this Addendum do not grant any rights to any parties other thou Business,Associate and the Covered Entity, 25. Chance in Iaw.Upon the enactment of any law,regulation,court decision or relevant government publication and/or interpretive guidance or policy that a party believes in good faith will adversely impact the use at disclosure of PHI under this Agreement,that patty may amend the Agreement to comply with such law,regulation,court decision or government publication,guidance or policy by delivering a written ameadme nt to the other party which shall be effective thirty(30)calendar days after receipt. IN WITNESS WHEREOF,the parties have executed this Agreement as of the Effective Date. ESO Solutions,Inc. Customer [ [St snare] Chris Dillie JLI.I ash [ [Printed None] [Pnnred Name] Q j CEO&President S�' P1 !Y le,✓ [mil [del ESO—MSIAv.201g0124 CITY ConfadenHal do Proprietary FT. 'M, 714 ESO Solutions, FH Software Sales Order 79725 2900 100th St Suite 309 Urbandale, Iowa 50322 Phone: 866.766.9471 CUSTOMER NO. 332554 E-Mail: FHSales@esosolutions.com BILL TO: SHIP TO: Fort Worth Fire Dept (TX) Fort Worth Fire Dept 1000 Throckmorton Street Chuck Caldwell Public Safety Bldg. 3rd Floor 1000 Throckmorton Street Fort Worth,TX 76102 Public Safety Bldg. 3rd Floor Fort Worth, TX 76102 Phone: (817)392-6956 REP P.O. NUMBER TERMS SALES ORDER DATE Katie Devitt Net 30 4/1/2018 Part Number Description Qty Each Amount 372505 FH Enterprise - Complete System Support 1 $970.00 $970.00 372501 FH Enterprise Additional User Support 44 $185.00 $8,140.00 372506 FH Enterprise A/R Module Support 1 $185.00 $185.00 372507 FH Enterprise A/R Additional User Support 7 $60.00 $420.00 376005 FH Platinum Support 1 $4,800.00 $4,800.00 Term Dates: January 1, 2018-December 31, 2018 Contract will auto renew annually per ESO MSLA terms and conditions. Sales Tax (0%) : $o.0� Quotation Total: $14,515.00 Pricing, Modifications&Taxes: 1. The Total Price is based on the Quantity and will be re-evaluated as described in the Master Subscription and License Agreement("MSLA").ESO's pricing for Quantity is discussed further within the MSLA. 2. Customer may be subject to a consumer price index adjustment annually("Uplift")as further described in the MSLA. 3. Customer expressly accepts that it may not reduce,cancel or otherwise modify this Sales Order except as provided by the MSLA prior to renewal. The products on this Sales Order Form may only be replaced by the parties signing a subsequent Sales Order modifying,replacing,or otherwise removing a product. 4. ESO's fees are exclusive of all taxes,levies or duties imposed by taxing authorities unless otherwise noted.If Customer is tax-exempt,Customer must provide a valid tax exemption certificate to ESO. S.Additional fees may be applied by your billing or CAD vendor for certain products and should be discussed with that vendor. By executing this Sales Order,Customer acknowledges having read and accepted the entire MSLA.Once this Sales Order is executed by Customer, the MSLA and this Sales Order(collectively,the"Agreement")govern your use of ESO's products.Any capitalized terms in this Sales Order that are not defined herein have the meaning defined in the MSLA.The Agreement is the entire agreement between the parties regarding this subject matter and supersedes any and all prior discussions and agreements(including,without limitation,any purchase order or unilateral document).In the event of any conflict between this Sales Order and the MSLA,this Sales Order will prevail. Sales Order 79725 Acceptance: Signature Igo Print Name: OFFICIAL RECORD CITY SECRETARY FT WORTH, TX ADDENDUM TO MASTER SUBSCRIPTION AND LICENSE AGREEMENT BETWEEN THE CITY OF FORT WORTH AND ESO SOLUTIONS, INC. This Addendum to Master Subscription and License Agreement ("Addendum") is entered into by and between the ESO Solutions, Inc. ("Seller") and the City of Fort Worth ("City"), collectively the"parties", for a purchase of licenses. The Contract documents shall include the following: 1. The Master Subscription and License Agreement; and 2. This Addendum. Notwithstanding any language to the contrary in the attached Master Subscription and License Agreement (the "Agreement"), the Parties hereby stipulate by evidence of execution of this Addendum below by a representative of each party duly authorized to bind the parties hereto, that the parties hereby agree that the provisions in this Addendum below shall be applicable to the Agreement as follows: 1. Term. The Agreement shall become effective upon the signing of the Agreement (the "Effective Date") and shall expire on December 31, 2018 (the Expiration Date"), unless terminated earlier in accordance with the provisions of the Agreement or otherwise extended by the parties. The Agreement may be renewed for three (3 ) renewals at City's option, each a "Renewal Term." City shall provide Seller with written notice of its intent to renew at least thirty (30) days prior to the end of each term. 2. Termination. a. Convenience.Either City or Seller may terminate the Agreement at any time and for any reason by providing the other party with 30 days written notice of termination. b. Breach. If either party commits a material breach of the Agreement,the non- breaching Party must give written notice to the breaching party that describes the breach in reasonable detail. The breaching party must cure the breach ten (10) calendar days after receipt of notice from the non-breaching party, or other time frame as agreed to by the parties. If the breaching party fails to cure the breach within the stated period of time, the non-breaching party may, in its sole discretion, and without prejudice to any other right under the Agreement, law, or equity, immediately terminate this Agreement by giving written notice to the breaching party. C. Fiscal Funding Out. In the event no funds or insufficient funds are appropriated by City in any fiscal period for any payments due hereunder, City will notify Addendum to Master Subscription and License Agreement Page 1 of 4 Seller of such occurrence and the Agreement shall terminate on the last day of the fiscal period.for which appropriations were received without penalty or expense to the City of any kind whatsoever, except as to the portions of the payments herein agreed upon for which funds have been appropriated. d. Duties and Obligations of the Parties. In the event that the Agreement is terminated prior to the Expiration Date,City shall pay Seller for services actually rendered up to the effective date of termination and Seller shall continue to provide City with services requested by City and in accordance with the Agreement up to the effective date of termination. Upon termination of the Agreement for any reason, Seller shall provide City with copies of all completed or partially completed documents prepared under the Agreement. In the event Seller has received access to City information or data as a requirement to perform services hereunder,Seller shall return all City provided data to City in a machine readable format or other format deemed acceptable to City. 3. Attorneys' Fees, Penalties, and Liquidated Damages. To the extent the attached Agreement requires City to pay attorneys' fees for any action contemplated or taken, or penalties or liquidated damages in any amount, City objects to these terms and any such terms are hereby deleted from the Agreement and shall have no force or effect. 4. Law and Venue.The Agreement and the rights and obligations of the parties hereto shall be governed by, and construed in accordance with the laws of the United States and state of Texas, exclusive of conflicts of laws provisions. Venue for any suit brought under the Agreement shall be in a court of competent jurisdiction in Tarrant County,Texas.To the extent the Agreement is required to be governed by any state law other than Texas or venue in Tarrant County, City objects to such terms and any such terms are hereby deleted from the Agreement and shall have no force or effect. 5. Sovereign Immunity. Nothing herein constitutes a waiver of City's sovereign immunity. To the extent the Agreement requires City to waive its rights or immunities as a government entity; such provisions are hereby deleted and shall have no force or effect. 6. Indemnity. To the extent the Agreement requires City to indemnify or hold Seller or any third party harmless from damages of any kind or character, City objects to these terms and any such terms are hereby deleted from the Agreement and shall have no force or effect. 7. No Debt. In compliance with Article 11 § 5 of the Texas Constitution, it is understood and agreed that all obligations of City hereunder are subject to the availability of funds. If such funds are not appropriated or become unavailable, City shall have the right to terminate the Agreement except for those portions of funds which have been appropriated prior to termination. 8. Confidential Information. City is a government entity under the laws of the State of Texas and all documents held or maintained by City are subject to disclosure under the Texas Public Information Act. To the extent the Agreement requires that City maintain records in violation of the Act,City hereby objects to such provisions and such provisions are hereby deleted from the Agreement and shall have no force or effect.In the event there is a request for information Addendum to Master Subscription and License Agreement Page 2 of 4 marked Confidential or Proprietary, City shall promptly notify Seller. It will be the responsibility of Seller to submit reasons objecting to disclosure. A determination on whether such reasons are sufficient will not be decided by City, but by the Office of the Attorney General of the State of Texas or by a court of competent jurisdiction. 9. Addendum Controlling. If any provisions of the attached Agreement,conflict with the terms herein, are prohibited by applicable law, conflict with any applicable rule, regulation or ordinance of City,the terms in this Addendum shall control. 10. Immigration Nationality Act. City actively supports the Immigration&Nationality Act(INA)which includes provisions addressing employment eligibility,employment verification, and nondiscrimination. Seller shall verify the identity and employment eligibility of all employees who perform work under the Agreement. Seller shall complete the Employment Eligibility Verification Form(I-9),maintain photocopies of all supporting employment eligibility and identity documentation for all employees, and upon request,provide City with copies of all I-9 forms and supporting eligibility documentation for each employee who performs work under the Agreement. Seller shall establish appropriate procedures and controls so that no services will be performed by any employee who is not legally eligible to perform such services. Seller shall provide City with a certification letter that it has complied with the verification requirements required by the Agreement. Seller shall indemnify City from any penalties or liabilities due to violations of this provision. City shall have the right to immediately terminate the Agreement for violations of this provision by Seller. 11. No Boycott of Israel. Seller acknowledges that in accordance with Chapter 2270 of the Texas Government Code, City is prohibited from entering into a contract with a company for goods or services unless the contract contains a written verification from the company that it: (1) does not boycott Israel; and (2) will not boycott Israel during the term of the contract. The terms"boycott Israel"and"company"shall have the meanings ascribed to those terms in Section 808.001 of the Texas Government Code. By signing this Addendum, Seller certifies that Seller's signature provides written verification to City that Seller: (1) does not boycott Israel; and(2) will not boycott Israel during the term of the Agreement. 12. Right to Audit. Seller agrees that City shall, until the expiration of three (3) years after final payment under the Agreement, have access to and the right to examine any directly pertinent books, documents, papers and records of Seller involving transactions relating to the Agreement. Seller agrees that City shall have access during normal working hours to all necessary Seller facilities and shall be provided adequate and appropriate workspace in order to conduct audits in compliance with the provisions of this section. City shall give Seller reasonable advance notice of intended audits. (signature page follows) Addendum to Master Subscription and License Agreement Page 3 of 4 Executed this the t� day of �, 2018. VV CITY: City of Fort Worth Contract Compliance Manager: By signing I acknowledge that I am the person responsible for the monitoring and administration of this contract,including ensuring all By: erformance and reporting requirements. Name: Title: Assistant City Manager Date: `�ll� I� By: C/ N Approval Recommended: Title: SQ Awe�r Approved as to Form and Legality: By: Name: Title: By: 4eo;c /bKme: o n B. S ong Attest: Title: Assist City Attorney '� Fp Tom. Q tta, Ci Authorization: By: ; a e:Va eTitle: ec a s retary SELLER: ESO Solutions, Inc. By: �- Name: Chris Di ie Title: CEO&President Date: 1 0/1 R/1 R OFFICIAL RECORV 9 Addendum to Master Subscription and License Agreement CITIES ETARX FT. WORTH,TX