HomeMy WebLinkAboutContract 51560-R4A4 DocuSign Envelope ID:890FDOOF-55AF-42FA-8668-5F3A899802EE
CSC No.51560-R4A4
RENEWAL 4 AND AMENDMENT 4 TO CITY OF FORT WORTH CONTRACT NO. 51560
BETWEEN THE CITY OF FORT WORTH AND ESO SOLUTIONS INC.
This Amendment No. 4 and Renewal No. 4 (the "Forth Amendment") is entered into by and
between the City of Fort Worth, a home-rule municipal corporation of the State of Texas,with its
principal place of business at 200 Texas Street, Fort Worth, Texas, (hereinafter referred to as the
"City"), acting by and through its duly authorized Assistant City Manager, and ESO Solutions,
Inc. (hereinafter referred to as the"ESO"),acting by and through its duly authorized representative.
Each party shall be individual referred to herein as Party and collectively as Parties.
RECITALS
WHEREAS, on or about November 21, 2018, the City entered into an Agreement with
ESO to purchase software licenses, City Secretary Office (CSO) Contract No. 51560 (the
"Contract"); and
WHEREAS, the initial term of the Contract was from November 21, 2018 to December
31, 2018 and could be renewed by the City at its sole option;
WHEREAS, the Contract provided for an initial I year term with 3 one-year renewal
options;
WHEREAS, the Contract was renewed for a Third Renewal Term from January 1, 2021
to December 2021;
WHEREAS,the Parties believed that the Contract provided for four(4) one-year renewal
options;
WHEREAS, the Parties intended to execute a fourth renewal option and still desire to
extend the Contract for a Fourth Renewal Term;
WHEREAS,the Parties have continued operating under the same terms and conditions of
the Contract since the expiration of the Third Renewal Term;
WHEREAS, the Parties wish to amend the Contract to accurately reflect their
understanding that the Contract had four(4) one-year renewal options
WHEREAS the Parties with to further Amend the Contract to amend the Sales Order and
increase the total annual compensation not to exceed the amount of$10,306.77; and
WHEREAS the Parties wish to renew the Contract for a Fourth Renewal Term.
NOW THEREFORE City and ESO do hereby agree to the following:
I. OFFICIAL RECORD
CITY SECRETARY
41'Renewal and 41'Amendment of CSC 51560
CoFW and ESO FT. WORTH, TX
DocuSign Envelope ID:890FDOOF-55AF-42FA-8668-5F3A899802EE
RENEWAL OF CONTRACT
1. The Contract, as amended herein, is hereby renewed and extended for a fourth renewal
term beginning on January 1, 2022, and ending on December 31, 2022.
II.
AMENDMENT TO CONTRACT
The following terms are hereby amended to either replace any conflicting terms in the
Contract or shall be added to the terms and shall be binding and enforceable as if they were
originally included therein and the amended agreement shall be referred to as the Contract in all
future documents.
1. The Contract is hereby amended by replacing Section 1 of the Addendum, titled Term,
with the following language:
1. Term. The Agreement shall become effective upon 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 four(4)renewals at City's option,the"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. The Contract is hereby amended by replacing Sales Order 79725 in its entirety with the
Sales Order Attached to this Fourth Amendment.
III.
ALL OTHER TERMS SHALL REMAIN THE SAME
All other provisions of the Contract which are not expressly amended herein shall remain
in full force and effect.
IV.
ELECTRONIC SIGNATURE
This Fourth Renewal and Fourth Amendment and 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 anoriginal.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
[SIGNATURE PAGE FOLLOWS]
4t'Renewal and 4t'Amendment of CSC 51560 Page 2 of 3
CoFW and ESO
DocuSign Envelope ID:890FDOOF-55AF-42FA-8668-5F3A899802EE
IN WITNESS WHEREOF,the parties hereto have executed this agreement, to be effective the
day the Assistant City Manager signs this Agreement.
CITY OF FORT WORTH:
CONTRACT COMPLIANCE
MANAGER:
By signing I acknowledge that I am the
By:Valerie Washington(Mar3,202215:34CST) person responsible for the monitoring and
Name: Valerie Washington administration of this contract, including
Title: Assistant City Manager ensuring all performance and reporting
requirements.
Date: Mar 3,2022
By:Mark Rauscher(M a r3,202214:17 CST)
APPROVAL RECOMMENDED: Name: Mark Rauscher
Title: Assistant. Fire Director
By: J sDavis(Mar3,202214:38CST) APPROVED AS TO FORM AND
Name: Jim Davis LEGALITY:
Title: Fire Director
ATTEST: �c��
By:
Tannette s. Goodall Name: Christopher Austria
By: Jannette S.Goodall(Mar 3,2022 15:47 CST) Title: Assistant City Attorney
Name: Jannette Goodall
Title: City Secretary pa4�oR a CONTRACT AUTHORIZATION:
O---°°00.0 � M&C: N/A
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ESO Solutions,INC Pd�*°°°°°°°°°°°°° *a
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DocuSigned by:
By: — F
Name:
Title: chief Legal & compliance officer
Date: 2/10/2022
OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
41b Renewal and 41b Amendment of CSC 51560 Page 3 of 3
CoFW and ESO
DocuSign Envelope ID:890FDOOF-55AF-42FA-8668-5F3A899802EE Quote Date: 11/18/2021
Customer Name: Fort Worth Fire Department
Quote#: Q-52467
e4s 4D Quote Expiration date: 12/18/2021
ESO Account Manager: Peter Quadrino
CUSTOMER CONTACT BILLING CONTACT
Customer Payor Fort Worth Fire Address Fire Administration
Department
Name Name Doug Zedler Fort Worth TX,76102
Email Email douglas.zedler@fortworth Billing Frequency Annual
texas.gov
Phone Phone (817)392-8463 Initial Term 12 months
Firehouse
Product Volume Tota I Fee Type
FH Enterprise-Bundled System Support 1 Seats $1,029.07 Recurring
FH Enterprise Additional User Support 44 Seats $8,635.88 Recurring
FH Enterprise Support-Accounts 1Seats $196.27 Recurring
Receivable Module
FH Enterprise-Additional User Support- 7 Seats $445.55 Recurring
Accounts Receivable Module
Total Recurring Fees $ 10,306.77
Total one-Time Fees $ 0.00
TOTAL FEES $ 10,306.77
DocuSign Envelope ID:890FDOOF-55AF-42FA-8668-5F3A899802EE Quote Date: 11/18/2021
Customer Name: Fort Worth Fire Department
Quote#: Q-52467
e4s 4D Quote Expiration date: 12/18/2021
ESO Account Manager: Peter Quadrino
TERMS AND CONDITIONS:
1. If the Customer indicated above has an ESO Master Subscription and License Agreement
(MSLA) dated on or after February 20, 2017, then that MSLA will govern this Quote. Otherwise,
Customer intends and agrees that this Quote adopts and incorporates the terms and conditions of
the MSLA and associated HIPAA business associate agreement hosted at the following web
address, and that the products and services ordered above are subject thereto:
https://www.eso.com/legal-terms/
2. The Effective Date of this Quote shall be the final date of signature.
3. Customer shall be responsible for the payment of all Fees listed herein. If Customer has
elected to use a Third Party Payor(as indicated above as Payor) and such party has executed an
appropriate agreement with ESO, ESO shall accept payment of Fees from
such Third Party Payor.
Fort Worth Fire Department
Signature:
Print Name:
Title:
Date:
For Firehouse, the following payment terms apply:
Fees are invoiced at the Billing Frequency 15 days after the Effective Date, with recurring fees due
on the anniversary.
DocuSign Envelope ID:890FDOOF-55AF-42FA-8668-5F3A899802EE Quote Date: 11/18/2021
Customer Name: Fort Worth Fire Department
Quote#: Q-52467
e4s 4D Quote Expiration date: 12/18/2021
ESO Account Manager: Peter Quadrino
Firehouse
Product Description
FH Enterprise - Bundled System
Support
FH Enterprise - Additional User
Support - Accounts Receivable
Module
FH Enterprise Support-Accounts
Receivable Module
FH Enterprise Additional User
Support
FORT WORTH
CITY OF FORT WORTH
CHAPTER 252 EXEMPTION FORM
Instructions: Fill out the entire form with detailed information. Once you have completed this form,
provide it to the Purchasing attorney for review. The attorney will review the information you have
provided to determine whether an exemption to Chapter 252's biding requirements is defensible.
If you are printing this form to provide to Legal, please do not provide the Primer portion. Failure
to provide sufficient information may result in follow up questions and cause a delay in the
attorney's determination.
Section l: General Information
Requesting Department: [Fire Dept.]
Name of Contract Manager: [Doug Zedler]
Department's Attorney: [Taylor, Paris]
Item or Service sought:
Goods: ❑
Service: ®.
Anticipated Amount: [$10,306.77]
Vendor: [ESO Solutions]
Current/Prior Agreement for item/service: Yes ® No ❑
CSC or Purchase Order#: 51560
Amount: [$10,306.77]
Projected M&C Date: [N/A]
How will this item or service be used? [ESO owns Firehouse software and is the only
company that provides maintenance and support for Firehouse software.]
Has your department started a requisition or otherwise contacted the Purchasing Division related
to obtaining this good/service? Yes ❑ No
If yes,please provide requisition number or brief explanation of contact with
Purchasing Division: [DETAILED DESCRIPTION]
Page 1 of 6
Section 2: Claimed Exemption and Justification (Other than sole source)
NOTE -For a claimed sole-source exemption, complete Section 3.
Please indicate the non-sole-source exemption you believe applies to the purchase and provide
information to support its applicability. Please refer to the Exemption Primer for detailed
information about common exemptions:
0 A procurement necessary to preserve or protect the public health or safety of the City
of Fort Worth's residents;
0 A procurement necessary because of unforeseen damage to public machinery,
equipment, or other property;
0 A procurement for personal, professional, or planning services;
0 A procurement for work that is performed and paid for by the day as the work
progresses;
0 A purchase of land or a right-of-way;
Q Paving drainage, street widening, and other public improvements, or related matters, if
at least one-third of the cost is to be paid by or through special assessments levied on
property that will benefit from the improvements;
Q A public improvement project, already in progress, authorized by the voters of the
municipality, for which there is a deficiency of funds for completing the project in
accordance with the plans and purposes authorized by the voters;
Q A payment under a contract by which a developer participates in the construction of a
public improvement as provided by Subchapter C, Chapter 212;
0 Personal property sold:
• at an auction by a state licensed auctioneer;
• at a going out of business sale held in compliance with Subchapter F,
Chapter 17, Business & Commerce Code;
• by a political subdivision of this state, a state agency of this state, or an
entity of the federal government; or
• under an interlocal contract for cooperative purchasing administered by a
regional planning commission established under Chapter 391;
0 Services performed by blind or severely disabled persons;
Q Goods purchased by a municipality for subsequent retail sale by the municipality;
0 Electricity; or
Page 2 of 6
0 Advertising, other than legal notices.
Please provide details and facts to explain why you believe the exemption applies to the
purchase. You may also attach documentation to this form.[
Section 3: Claimed Sole-Source Exemption and Justification
NOTE -For any non-sole-source exemption, complete Section 2.
Please indicate the sole-source exemption you believe applies to the purchase and provide
information to support its applicability. Please refer to the Exemption Primer for detailed
information about common exemptions
®. *A procurement of items that are available from only one source, including:
• items that are available from only one source because of patents,copyrights,
secret processes, or natural monopolies;
• films, manuscripts, or books;
• gas,water, and other utility services;
• captive replacement parts or components for equipment;
• books, papers, and other library materials for a public library that are
available only from the persons holding exclusive distribution rights to the
materials; and
• management services provided by a nonprofit organization to a municipal
museum, park, zoo, or other facility to which the organization has provided
significant financial or other benefits;
How did you determine that the item or service is only available from one source?
[ESO owns Firehouse software and is the only company that provides maintenance and support
for Firehouse software.
Attach screenshots and provide an explanation of any independent research you conducted,
through internet searches,searching cooperatives, or discussions with others knowledgeable on
the subject matter that corroborate that the item is available only from a single source.
[Searching the web for "ESO Firehouse software maintenance and support" returned ESO as the
only company that provides maintenance and support for Firehouse software.]
Did you attach a sole source justification letter? N Yes ❑ No
Page 3 of 6
Describe the uniqueness of the item or service (e.g. compatibility or patent issues, etc.).
owns Firehouse software and is the only company that provides maintenance and support for
Firehouse software.]
Section 4:Attorney De to rminatio n
With the facts provided by the department, is the use of the claimed exemption defensible if the
City were to be challenged on this purchase? N Yes 0 No.
Was there anything attached to this form that was relied on in making this determination?
0 Yes No.
If yes,please explain:[DESCRIBE ATTACHMENTS CONSIDERED]
Was there anything not included on this form or attached hereto that was relied on in making this
determination? 0 Yes N No.
If yes,please explain:[EXPLAIN OUTSIDE SOURCE OF INFORMATION]
Will the standard terms and conditions apply? N Yes 0 No.
Will the contract require special terms? 0 Yes No.
Will the contract require review by the department attorney? N Yes 0 No.
Approve d By:
Date: 3.3.22
Ta or Paris/Jessika Williams
Assistant City Attorney
Page 4of 6
EXEMPTION FORM PRIMER
Below are explanations and examples of common exemptions that could apply to City purchases.
If you have questions about the information provided or need additional information, please
contact your department's assigned attorney or the appropriate purchasing attorney.
1. A procurement necessary to preserve or protect the public health or safety of the
municipality's residents;
Examples of activities that have been found to fall within this exception include ambulance
services; solid waste collection and disposal; and first-responder safety equipment such as
breathing apparatus for firefighters and bullet-proof vests for police officers.
2. A procurement necessary because of unforeseen damage to public machinery, equipment,
or other property;
Examples of this type of procurement would include repairing or replacing roofs and
windows damaged by hail or a tornado. But parts and services for routine maintenance or
replacement of old, worn out roofs or windows would not meet this exception.
3. A procurement for personal, professional, or planning services;
Personal services are ones that are unique to the individual providing them. Therefore
personal services contract cannot generally be subcontracted or assigned.
Professional services are not defined under Chapter 252, so there is no precise definition
to follow. There is no universal definition of this term, however, "several cases suggest
that it... is `predominately mental or intellectual, rather than physical or manual."' Tex.
Atty Gen Op. JM-940 (1988) (quoting Maryland Casualty Co. v. Cray Water Co., 160
S.W. 2d 102 (Tex. Civ. App.—Eastland 1942, no writ). The Texas Attorney General has
also opined that "professional services" no longer includes only the services of lawyers,
physicians, or theologians, but also those members of disciplines requiring special
knowledge or attainment and a high order of learning, skill, and intelligence. Id.
Facts needed to support a professional service exemption include the specialized
requirements of that profession and the mental and intellectual skill required by the person
while performing the service. Purchases of goods are not professional services.
4. A procurement of items that are available from only one source.
This exemption is commonly referred to as the sole source exemption. In determining
whether a purchase is of a good or service that is available from one source, you should
not consider price or time to receive the good or service.A sole source does not exist solely
on the basis of personal or departmental preference or a desire to keep all units the same
brand or make. The information needed to support this exemption is that no other provider
Page 5 of 6
can provide the service or category of good except for the vendor you are proposing. Some
examples of sole source purchases include service agreements when only one vendor is
authorized to work on the equipment by the manufacturer and allowing another vendor
would void the warranty; purchase of a good that is copyrighted or trademarked and only
provided by one vendor.
Page 6 of 6
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
r By: Christopher stria(Jan8,202110:53CST)
0PV0a�� Name: Christopher Austria
By: "Q Title: Assistant City Attorney
Name: Mary J. Kayser
-Tza FORT'Qa Title: City Secretary CONTRACT AUTHORIZATION:
oF°°°°°°°°°kyza
° 0��� M&C:N/A 24089-03-2020(March 19,2020)and
�o $•�G 24161-04-2020(April 7,2020)
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ESO Solutions, Inc.
Ra�de�-tMu�u7er�
By:
Robert Mu nden(Dec 29,2020 12:55 CST)
Name: Robert Munden
Title: General Counsel&Secretary
Date: Dec 29, 2020
OFFICIAL RECORD
CITY SECRETARY
3'd Renewal and 3'd Amendment of CSC 51560 FT. WORTH, TX
CoFW and ESO Solutions IN
at •_
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CONTRACT NORM
�0V`yS MASTER SUBSCRIPTION AND LICENSE AGREEMENT
This Master Subscription and License Agreement(the"Agreement")is entered into as of %1':2 t 1$("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
I.I. "Add-On Software"means any complementary software that term 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
1.7. `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 Tenn 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 Term 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 OFFICIAL RECORL
Confidential&Proprietary CITY SCMILTARY
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 Ae 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
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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.I. 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 party'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
16. 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 party'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
[Signature] "� [Signature]
Chris Ddhe
[Printed Name] (Printed Name]CEO&President A-es[s�-ayo- C�i�A IVI ano9 e,✓
[Title] [Title] J
OFFICIAL RE 4GR
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(w�vw.csosolutionS.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 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(support(wesosolutions.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 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.
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.
l. 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 parry'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. hmldement privacy and security safeguards in the systems,applications,and software Covered Entity controls,configures and
connects to ESO's Software.
24. pried Partv,AjgML The terms of this Addendum do not grant any rights to any parties other than Business Associate and the Covered
Entity,
25. Change in Iaw.Upon the enactment of any law,regulation,court decision or relevant government publication and/or imerpreuve guidance
or policy that a party believes in good faith will adversely impact the use at disclosure of PHI under this Agreement,that party may amend
the Agreement to comply with such law,regulation,court decision or government publication,guidance air policy by delivering a written
amendment 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
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Chris D;llie VC, V 1 ash
[Printed None] [Pnnred Name]
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UFFMAL RECORD
ESO—MSI.Av.201g0124 CITY SECRETARY
Confrdenfial do Proprietary FT.. W V R t INt YX
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: 464V 2/
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 r 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:
Approved as to Form and Legality:
By:
Name:
Title: By:
me: o n B. S ong
Attest: Title: Assist City Attorney
�
Q, . tta, ci Authorization:
By: `
a e: Va4, e
Title: c a s retary
SELLER:
ESO Solutions, Inc.
B
Y: -
Name: Chris Di ie
Title: CEO&President
Date: t
OFFICIAL RECORD
Addendum to Master Subscription and License Agreement CIT1� TARX
FT. WORTH, TX