HomeMy WebLinkAboutESO Solutions Inc. - ER Fire Historical Data Access (Quote #Q-197343)CUSTOMER CONTACT
Customer
Name
Email
Phone
BILLING CONTACT
Yakima City Fire Department Payor
(WA)
Susan Madrigal Name
susan.m ad rigal@yakimawa.gov Email
(509) 575-6060 Phone
Quote Date:
Customer Name:
Quote #:
Quote Expiration date:
ESO Account Manager:
Yakima City Fire Address
Department (WA)
Susan Madrigal
susan.madrigal@yakimaw Billing Frequency
a.gov
(509) 575-6060 Initial Term
03/28/2025
Yakima City Fire Department (WA)
Q-197343
06/26/2025
Mikayla Wieser
129 N 2nd St.
Yakima WA, 98901
Annual
12 months
ER Fire
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ER Fire - Historical Data Access 1
$500.00
Total Recurring Fees
Total One -Time Fees
Recurring
500.00
0.00
TOTAL FEES
500.00
Quote Date:
Customer Name:
Quote #:
Quote Expiration date:
ESO Account Manager:
TERMS AND CONDITIONS:
03/28/2025
Yakima City Fire Department (WA)
Q-197343
06/26/2025
Mikayla Wieser
1. If the Customer indicated above has an existing master agreement with ESO (Agreement)
dated on or after January 1, 2018, then that Agreement will govern this Quote. Otherwise,
Customer intends and agrees that this Quote adopts and incorporates the terms and conditions of
the ESA and associated HIPAA business associate agreement hosted at the following web
address, and that the products and services ordered above are subject thereto:
2. The Effective Date of this Quote shall be the final date of signature.
3. Customer is responsible for the payment of all Fees shown. ESO will accept Fee payment
from a payor (if indicated above) if ESO has an appropriate agreement with the Payor.
ESO reserves the right to not accept any Quote signed after the Quote Expiration Date.
Yakima City Fire
Signatu
Print Name:
Title:
Date:
CITY CONTRACT NO:
(WA)
RESOLUTION NO
The subscription term shall begin 15 calendar days after the Effective Date (Subscription Start Date).,
All Fees are invoiced on or about the Effective Date. After the Initial Term, Recurring Fees are due on
the anniversary of the Subscription Start Date.
eso
Quote Date:
Customer Name:
Quote #:
Quote Expiration date:
ESO Account Manager:
03/28/2025
Yakima City Fire Department (WA)
Q-197343
06/26/2025
Mikayla Wieser
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ER Fire - Historical Data Access
ESO. SUBSCRIPTION AGREEMENT
This ESO Subscription Agreement (this"Agreement") is entered into as of the date indicated on the duly executed Quote
("Effective Date"), by and between ESO Solutions, Inc., a Texas corporation having its principal place of business at 11500 Alterra
Parkway, Suite 100 Austin, TX 78758, including its controlled subsidiaries, (collectively, "ESO") and Customer (or the governing or
controlling authority thereof), as indicated on the Quote or other ordering document.. This Agreement consists of these terms and
conditions (the "General Terms & Conditions") below, the Quote adopting this Agreement, the Business Associate Agreement, and
any Order (as defined below) executed by the parties, including any attachments to such Order.
The parties have agreed that ESO will provide Customer certain technology products and/or services and that Customer will
pay ESO certain fees. Therefore, in consideration of the covenants, agreements and promises set forth below, and for other good and
valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties, intending to be legally bound, hereby
agree as follows.
GENERAL TERMS AND CONDITIONS
1. DEFINITIONS. Capitalized terms not otherwise defined in this Agreement have the meanings below:
"Add -On Software" means any complementary software components or reporting service(s) that ESO makes available to customer
through its Software.
"Customer Data" means information, data and other content in electronic form that is submitted, posted, or otherwise transmitted by or
on behalf of Customer through the Software.
"De -identified Data" means Customer Data which (i) if PHI, has been deidentified in accordance with HIPAA, or (ii) if not PHI, which
has had all personally identifiable information removed, as well as the names and addresses of Customer and any of its Users and/or
Customer's clients, and in each case as a consequence is neither PHI nor identifiable to or by Customer.
"DIIv ble" means software, report, or other work product created pursuant to a Statement of Work.
"Documentation" means the Software's user guides and operating manuals.
"Feedback" refers to any suggestion or idea for improving or otherwise modifying ESO's products or services.
"Integrated Service" means a third -party hardware, software, service, website, or data that is integrated with (or interoperates) with a
Service. Nonexclusive examples of Integrated Services include computer -aided dispatch (CAD), cardiac monitors and billing software.
"Intellectual Property" means trade secrets, copyrightable subject matter, patents and patent applications, and other proprietary
information, activities, and any ideas, concepts, innovations, inventions and designs.
"Licensed Software" means the executable, object code version of software that ESO provides to Customer for its use and installation
on Customer's own equipment. For the avoidance of doubt, Licensed Software does not include Add -on Software or SaaS.
"New Version" means any new version of Licensed Software (excluding SaaS Software) that ESO may from time to time introduce
and market generally as a distinct licensed product, as may be indicated by ESO's designation of a new version number, brand or
product.
"Order" means a document addressing the order of a specific set of products or services which is executed by authorized
representatives of each party. An Order may be (a) an ESO sales form or "Quote", (b) a Statement of Work, or (c) an addendum or
other writing which is attached or which the parties intend to be incorporated by reference into this Agreement. For the avoidance of
doubt, unilateral purchase orders and other similar documents do not constitute an Ordering Document.
"Outage" means Customer is unable to access SaaS, or such access is materially delayed, impaired or disrupted, in each case as
caused or controlled by ESO.
"Professional Services" means professional services provided by ESO under a Statement of Work.
"Protected Health Information" or "PHI" has the meaning set forth in HIPAA. All references herein to PHI shall be construed to
include electronic PHI, or ePHI, as that term is defined by HIPAA.
"Reporting Services" means, collectively, the different tools or features in the Software allowing Customer to generate compilations of
data, including but not limited to ad -hoc reports, analytics, benchmarking or any other reporting tool provided through the Software.
"SaaS" means software -as -a -service that ESO hosts (directly or indirectly) for Customer's use on a periodic subscription basis. For the
avoidance of doubt, SaaS does not include Licensed Software.
"Scheduled Downtime" means periods when ESO intentionally interrupts SaaS to perform system maintenance or otherwise correct
service errors during non -peak hours (except for critical circumstances), typically between midnight and 6 a.m. Central Time on a
fortnightly basis.
CONFIDENTIAL ESO ESA v230425 11
"Software" means any ESO computer program, programming or modules specified in the Agreement or any Order. For the avoidance
of doubt, Add -on Software, SaaS, and Licensed Software are collectively referred to as Software.
"Support Services" means those services described in Exhibit B.
"Third -Party Data" means data not owned by ESO but which is (or access to which is) provided by ESO under an Order (such as fire
codes or AAAM AIS codes).
"Third -Party Service" means a service not provided by ESO but which is made available by ESO in connection with its Software
under an Order.
"Third -Party Software" means software not owned by ESO but which is (or access to which is) provided by ESO under an or Order.
"Use Restrictions" means the restrictions imposed on Customer's use of Software as described in Section 3.3.
"User" means any individual who uses the Software on Customer's behalf through Customer's account or passwords.
2. SOFTWARE ORDERS. During the Term, Customer may order Software from ESO by signing an appropriate Order. Customer's
license to Licensed Software and its subscription to SaaS are set forth below. Each such Order is incorporated herein by reference.
3. LICENSE/SUBSCRIPTION TO SOFTWARE
3.1. Grant of Subs rife ion:. Seas. For SaaS, during the Term Customer may access and use the SaaS and Reporting Services, with
the access and volume limitations set forth on the applicable Order, subject to Customer's compliance with the Use Restrictions
and other limitations contained in this Agreement.
3.2. Grant of License: Licensed S. are. For Licensed Software, during the Term ESO hereby grants Customer a limited, non-
exclusive, non -transferable, non -assignable, non-sublicensable, revocable license to copy and use the Licensed Software, in
such quantities as are set forth on the applicable Order and as necessary for Customer's intemal business purposes, in each
case subject to Customer's compliance with the Use Restrictions and other limitations and obligations contained in this
Agreement.
3.3. Uae-Restrictions. Except as provided in this Agreement or as otherwise authorized by ESO, Customer has no right to, and shall
not: (a) decompile, reverse engineer, disassemble, print, copy or display the Software or otherwise reduce the Software to a
human -perceivable form in whole or in part; (b) publish, release, rent, lease, loan, sell, distribute or transfer the Software to
another person or entity; (c) reproduce the Software for the use or benefit of anyone other than Customer; (d) alter, modify or
create derivative works based upon the Software either in whole or in part; or (e) use or permit the use of the Software for
commercial time-sharing arrangements or providing service bureau, data processing, rental, or other services to any third party
(including any affiliate not specifically listed in the applicable Order).
3.4. Owns ' No. The rights granted under the provisions of this Agreement do not constitute a sale of the Software. ESO retains all
right, title, and interest in and to the Software, including without limitation all software used to provide the Software and all
graphics, user interfaces, logos and trademarks reproduced through the Software, and Feedback, except to the limited extent set
forth in this Agreement. This Agreement does not grant Customer any intellectual property rights in the Software or any of its
components., except to the limited extent that this Agreement specifically sets forth Customer's rights to access, use, or copy the
Software during the Term. Customer acknowledges that the Software and its components are protected by copyright and other
laws.
3.5. Third -Party Software and Services. This Section 3.5 applies to Third -Party Software and Services offered by ESO. Refer to the
product table following the Agreement for applicability.
3.5.1. ESO neither accepts liability for, nor warrants the functionality, utility, availability, reliability or accuracy of, Third -Party Software
or Third -Party Services. The Third -Party Software "EMS1 Academy" and/or "FireRescuel Academy' and/or "EMS1 &
FireRescuel Academy — Implementation and Configuration" and/or "Learning Management System" and/or "EVALS
Implementation" (collectively, "Education") is offered by ESO in collaboration with Lexipol, f/k/a The Praetorian Group. If
Customer subscribes to Education, Customer acknowledges and agrees to the terms and conditions of the Praetorian license
agreement, located at https l w lexi i. m/te s*an onditions/, which shall supersede this Agreement as it applies to
Customer's use of Education and any Customer Data stored therein.
3.5.2. Third -Party Date. If Customer (as indicated on an Order) elects to license Third -Party Data (e.g., fire codes), then subject to
the terms hereof, ESO hereby grants Customer a non-exclusive, non-sublicensable, and non -transferable license during the
Term to use such Third -Party Data via the Software solely for Customer's internal purposes. Customer will not (i) allow
greater access than that set forth in the applicable Order, (ii) disclose, release, distribute, or deliver Third -Party Data, or any
portion thereof, to any third party (iii) copy, modify, or create derivative works of Third -Party Data, (iv) rent, lease, lend, sell,
sublicense, assign, distribute, publish, transfer, or otherwise make available Third -Party Data, (v) attempt to output in any form
more than 10% of the Third -Party Data or otherwise circumvent the usage limitations included in the Software, (vi) remove any
proprietary notices included within Third -Party Data or Software, or (vii) use Third -Party Data in any manner or for any purpose
that infringes or otherwise violates any proprietary right of a person, or that violates applicable law. ESO does not warrant the
CONFIDENTIAL ESO ESA v230425 l 2
functionality, reliability, accuracy, completeness or utility of, Third -Party Data, or accept any liability therefor. Additional terms
and limitations applicable to Third -Party Data may be provided on the applicable Order.
3.6. inter rated Services. Customer is responsible for securing the right for ESO to receive, transmit, process, display, and store all
data ("Integrated Data") from and to any Integrated Service to the extent required for ESO to perform its obligations and exercise
its rights under this Agreement. ESO's obligation to support Integrated Services is contingent upon Customer securing such
rights. Customer's failure to secure such rights does not terminate or suspend Customer's obligation to pay Fees. Customer
bears (and shall hold ESO harmless from) all risks associated with access to and use of Integrated Services and Integrated
Data. Any Integrated Data made accessible by ESO in or through the Integrated Service is provided on an "as -is" and "as
available" basis without any warranty of any kind. Customer acknowledges that ESO is not responsible for and under no
obligation to control, monitor or correct Integrated Data; provided, however, ESO reserves the right to take remedial action if any
such data violates applicable law or this Agreement, including without limitation, the removal of, or disablement of access to,
such data and the Integrated Service. Customer acknowledges that ESO's ability to deliver each Service is contingent upon
Customer or User's compliance with this Agreement and any applicable third party's terms of use. Accordingly, if ESO's
performance under this Agreement is prevented or delayed by any act or omission of Customer or its agents, subcontractors, or
third party vendors (other than ESO) ("Customer Delay"), ESO shall not be deemed in breach of its obligations under this
Agreement or otherwise be liable for any costs or losses of Customer (in each case, to the extent arising directly or indirectly
from Customer Delay).
3.7. Third Party APIs. Customer acknowledges that: (i) the nature, type, quality and availability of Integrated Data and Integrated
Services may change at any time during the Term, and (ii) features of the Integrated Service that integrate or interoperate with
third parties and Integrated Data depend on the continuing availability of such third parties' respective application programming
interfaces ("APIs") for use with the Integrated Service. ESO may update, change or modify the Integrated Services under this
Agreement because of a change in, or unavailability of, such Integrated Data or APIs. If any third -party ceases to make its
Integrated Data or APIs available on reasonable terms for the Integrated Services, as determined by ESO in its sole discretion,
ESO may cease providing access to or support for the affected Integrated Data or Integrated Service without any liability to
Customer. Any changes to Integrated Data or APIs, including their availability or unavailability, during the Term does not affect
Customer's obligations under this Agreement or the applicable Order, and Customer will not be entitled to any reduction in fees,
refund, credit or other compensation due to any such changes.
4. HOSTING, SLA & SUPPORT SERVICES
4.1. Hosting & vfana ernent. Customer shall be responsible for hosting and managing any Licensed Software on systems meeting
the requirements specified by ESO. ESO shall be responsible for hosting and managing any SaaS.
4.2. Service Level +el Agreement. If an Outage, excluding Scheduled Downtime (as defined below), results in the service level uptime
falling below 99% for any three-month period (the "Uptime Commitment"), then Customer may immediately terminate this
Agreement, in which case ESO will refund any prepaid, unearned Fees to Customer. This is Customer's sole remedy for ESO's
breach of the Uptime Commitment.
4.3. Scheduled Downtime. ESO will endeavor to provide reasonable (72 hour) notice of Scheduled Downtime to Customer's Users.
Notice of Scheduled Downtime may be provided from within the Software or via email. Scheduled Downtime shall never
constitute a failure of performance or Outage by ESO. Notification timelines and the frequency of Scheduled Downtime are
subject to the emergence of security concerns outside of ESO's control.
4.4. Swoon and Updates. During the Term, ESO shall provide to Customer the Support Services, in accordance with Exhibit B,
which is incorporated herein by reference. ESO may update and revise its Software, providing reasonable notice in the case of
any material diminishment.
5. FEES
5.1. Fees. In consideration of the rights granted hereunder, Customer agrees to pay ESO the fees for the Software and Professional
Services as set forth in the Order(s)) (collectively, "Fees"). The Fees are non -cancelable and non-refundable, except as
expressly provided herein. Customer (or Third -Party Payer, if applicable) shall pay all invoices within 30 days of receipt.
5.2. Third -Party Payer. If Customer desires to use a third -party to pay some or all of the Fees on behalf of Customer (a "Thfr+rPerty
Payer"), then (i) each applicable Order will identify such arrangement, (ii) the Third -Party Payer will enter into a written
agreement with ESO regarding such arrangement, (iii) Customer may replace the Third -Party Payer by written notice to ESO
(provided that no such change shall be made until the then -current Term's renewal), (iv) references within this Section 5 to
Customer's responsibility for Fees shall be understood to refer to the Third -Party Payer when applicable, and (v) Customer shall
remain responsible for payment if the Third -Party Payer does not pay the Fees.
5.3. Wirt on Renewal. Fees for Software, which recur annually, shall increase by 8.75% each year this Agreement is in effect.
5.4. Taxes and Fees. The Fees are exclusive of all taxes and credit card processing fees, if applicable. Unless and until Customer
provides ESO a tax exemption certificate, Customer will be responsible for and will remit (or will promptly reimburse ESO for) all
taxes of any kind, including sales, use, duty, customs, withholding, property, value-added, and other similar federal, state or local
taxes (other than taxes based on ESO's income) related to this Agreement.
CONFIDENTIAL ESO ESA v230425 13
5.5. p +rooriation of Funds. if Customer is a city, county or other government entity, Customer may terminate the Agreement at the
end of the Customer's fiscal term if Customer provides evidence that its governing body did not appropriate sufficient funds for
the next fiscal year. Notwithstanding the foregoing, this provision shall not excuse Customer from past payment obligations or
other Fees earned and unpaid.
5.6. lease Monitoring. Customer is solely responsible for its own adherence to volume and use limitations indicated on the
applicable Order. ESO may monitor Customer's use of the Software, and if Customer's usage exceeds the level indicated in the
applicable Order (an "Overage"), Customer shall owe ESO the Fee corresponding to such usage level at a rate no higher than
ESO's then -standard pricing for new customers at an equivalent usage level. ESO may invoice for Overages immediately.
6. TERM AND TERMINATION
6.1. Term. The term of this Agreement (the "Term") commences on the Effective Date and continues for a period of one year (or any
longer period provided in an Order). Thereafter, the Term will renew for successive one-year periods unless written notice is
provided at least 60 days prior to the anniversary of the Effective Date.
6.2. Termination'for Cause. Either party may terminate this Agreement or any individual Order for the other party's uncured material
breach by providing written notice. The breaching party shall have 30 days from receipt to cure such breach to the reasonable
satisfaction of the non -breaching party.
6.3. Effect of Termination. If Customer terminates this Agreement or any Order as a result of ESO's material breach, then to the
extent Customer prepaid any Fees, ESO shall refund to Customer those prepaid Fees on a pro-rata basis from the date
Customer actually ceases use of the Software. Upon termination of this Agreement or any Order, Customer shall cease all use of
the Software and delete, destroy or return all copies of the Documentation and Licensed Software in its possession or control,
except as required by law. Customer shall remain obligated to pay appropriate Fees at ESO's then -current rates if Customer
continues to use or access Software after the termination or expiration of this Agreement. If Customer's Agreement includes a
multi -year discount plan with diminishing discounts, and Customer terminates the Agreement prior to the completion of the
discount plan, Customer shall promptly pay ESO's invoice recouping such discounts for a maximum of two years prior to the
date of termination. Termination of this Agreement is without prejudice to any other right or remedy and shall not release a party
from any liability.
6.4. Dethrone of Data. ESO will provide Customer its Customer Data in a searchable .pdf format upon request made within 60 days of
the expiration or termination of this Agreement. Customer acknowledges that ESO has no obligation to retain Customer Data
more than 60 days after expiration or termination of this Agreement.
7. REPRESENTATIONS AND WARRANTIES
7.1. Material P .armada of Software,. After it is fully implemented (and subject to Customer's adherence to Sections 3.3, 4.1 and
13.4), ESO warrants that the Software will reliably collect, transmit, store and/or permit access to data in compliance with
applicable law and industry standards.
7.2. Due Authority. Each party's execution, delivery and performance of this Agreement and each agreement or instrument
contemplated by this Agreement is duly authorized by all necessary corporate or government action.
7.3. Customer Cooperation. Customer agrees to use current operating systems and reasonably and timely cooperate with ESO,
including providing ESO reasonable access to its equipment, software and data as necessary for the implementation and
operation of the Software.
8. DISCLAIMER OF WARRANTIES. EXCEPT AS OTHERWISE PROVIDED IN SECTION 7, ESO DISCLAIMS ALL WARRANTIES,
EXPRESS OR IMPLIED, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, PERFORMANCE, SUITABILITY, TITLE, NON -INFRINGEMENT, OR ANY IMPLIED WARRANTY ARISING FROM
STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. EXCEPT AS EXPRESSLY
PROVIDED IN SECTION 7, CUSTOMER ACCEPTS THE SOFTWARE "AS -IS" AND "AS AVAILABLE."
9. CONFIDENTIALITY
9.1. "Confidential Information" refers to the following items: (a) any document marked "Confidential"; (b) any information orally
designated as "Confidential" at the time of disclosure, provided the disclosing party confirms such designation in writing within
five business days; (c) the Software and Documentation, whether or not designated confidential; (d) ESO's security controls,
policies, procedures, audits, or other information concerning ESO's intemal security posture; (e) any other nonpublic, sensitive
information reasonably treated as trade secret or otherwise confidential; and (f) Customer Data which does not comprise PHI .
Notwithstanding the foregoing, Confidential Information does not include infommation that: (i) is in the other party's possession at
the time of disclosure free of duty of non -disclosure; (ii) is independently developed without use of or reference to Confidential
Information; (iii) becomes known publicly, before or after disclosure, other than as a result of the receiving party's improper
action or inaction; (iv) is approved for release in writing by the disclosing party; (v) as to ESO, Customer's Feedback; or (vi) is
PHI (which shall be governed by the Business Associate Agreement rather than this Section).
9.2. Nondisclosure. Each party shall use Confidential Information of the other party solely to fulfill the terms of this Agreement (the
"Purpose"). Each party shall (a) ensure that its employees or contractors are bound by confidentiality obligations no less
CONFIDENTIAL ESO ESA v230425 14
restrictive than those contained herein, and (b) not disclose Confidential Information to any other third party without prior written
consent from the disclosing party. Without limiting the generality of the foregoing, the receiving party shall protect Confidential
Information with the same degree of care it uses to protect its own confidential information of similar nature and importance, but
with no less than reasonable care. A receiving party shall promptly notify the disclosing party of any misuse or misappropriation
of Confidential Information of which it is aware.
9.3. Termination & Return. With respect to each item of Confidential Information, the obligations of nondisclosure will terminate three
years after the date of disclosure; provided that, such obligations related to Confidential Information constituting ESO's trade
secrets shall continue so long as such information remains subject to trade secret protection pursuant to applicable law. Upon
termination of this Agreement, a party shall return all copies of Confidential Information to the other or certify the destruction
thereof.
9.4. Retention of Rights. This Agreement does not transfer ownership of Confidential Information or grant a license thereto.
9.5. Open Records and Other Laws: Notwithstanding anything in this Section to the contrary, the parties expressly acknowledge that
Confidential Information may be disclosed if such Confidential Information is required to be disclosed by law, a lawful public
records request, or judicial order, provided that prior to such disclosure, written notice of such required disclosure shall be given
promptly and without unreasonable delay by the receiving party in order to give the disclosing party the opportunity to object to
the disclosure and/or to seek a protective order. The receiving party shall reasonably cooperate in this effort. In addition,
Customer may disclose the contents of this Agreement solely for the purpose of completing its review and approval processes
under its local rules, if applicable.
10. INSURANCE. Throughout the Term (and for a period of at least three years thereafter for any insurance written on a claims -made
form) ESO shall maintain in effect the insurance coverage described below:
10.1. Commercial general liability insurance with a minimum of $1 million per occurrence and $1 million aggregate;
10.2. Commercial automobile liability insurance covering use of all non -owned and hired automobiles with a minimum limit of $1 million
for bodily injury and property damage liability;
10.3. Worker's compensation insurance and employer's liability insurance or any alternative plan or coverage as permitted or required
by applicable law, with a minimum employer's liability limit of $1 million each accident or disease; and
10.4. Computer processor/computer professional liability insurance (a/k/a technology errors and omissions) covering the liability for
financial loss due to error, omission or negligence of ESO, and privacy and network security insurance ("cyber coverage")
covering losses arising from a disclosure of confidential information (including PHI) with a combined aggregate amount of $1
million.
11. INDEMNIFICATION
11.1. (P Infringement. Subject to the limitations in Section 12, ESO shall defend and Indemnify Customer from any damages, costs,
liabilities, expenses (including reasonable attorney's fees) ("Damages") actually incurred or finally adjudicated as to any third-
party claim or action alleging that the Software delivered pursuant to this Agreement infringe or misappropriate any third party's
patent, copyright, trade secret, or other intellectual property rights enforceable in the applicable jurisdiction (each, an
"Indemnified Claim"). If Customer makes an Indemnified Claim under this Section or if ESO determines that an Indemnified
Claim may occur, ESO may at its option: (a) obtain a right for Customer to continue using such Software; (b) modify such
Software to make it a non -infringing equivalent or (c) replace such Software with a non -infringing equivalent. If (a), (b), or (c)
above are not reasonably practicable, either party may, at its option, terminate the relevant Order, in which case ESO will
refund any pre -paid Fees on a pro-rata basis for such Order. Notwithstanding the foregoing, ESO shall have no obligation
hereunder for any claim resulting or arising from (x) Customer's breach of this Agreement; (y) modifications made to the
Software not performed or provided by or on behalf of ESO or (z) the combination, operation or use by Customer (and/or
anyone acting on Customer's behalf) of the Software in connection with any other product or service (the combination or joint
use of which causes the alleged infringement). This Section 11 states ESO's sole obligation and liability, and Customer's sole
remedy, for potential or actual intellectual property infringement by the Software.
11.2. indemnification Procedures. Upon becoming aware of any matter which is subject to the provisions of Sections 11.1 (a "Claim"),
Customer must give prompt written notice of such Claim to ESO, accompanied by copies of any written documentation regarding
the Claim received by the Customer. ESO shall compromise or defend, at its own expense and with its own counsel, any such
Claim. Customer will have the right, at its option, to participate in the settlement or defense of any such Claim, with its own
counsel and at its own expense; provided, however, that ESO will have the right to control such settlement or defense. ESO will
not enter into any settlement that imposes any liability or obligation on Customer without the Customer's prior written consent.
The parties will cooperate in any such settlement or defense and give each other full access to all relevant information, at ESO's
expense.
12. LIMITATION OF LIABILITY
12.1. LIMITATION OF DAMAGES. NEITHER ESO NOR CUSTOMER SHALL BE LIABLE TO THE OTHER FOR ANY
CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE OR INCIDENTAL DAMAGES, INCLUDING CLAIMS FOR DAMAGES
CONFIDENTIAL ESO ESA v230425 15
FOR LOST PROFITS, GOODWILL, USE OF MONEY, INTERRUPTED OR IMPAIRED USE OF THE SOFTWARE,
AVAILABILITY OF DATA, STOPPAGE OF WORK OR IMPAIRMENT OF OTHER ASSETS RELATING TO THIS AGREEMENT.
12.2. SPECIFIC LIABILITY. LIABILITY SHALL BE LIMITED AS FOLLOWS:
(a) ESO'S OBLIGATIONS UNDER SECTION 11 SHALL BE LIMITED TO $500,000.
(b) DAMAGES ARISING FROM A PARTY'S BREACH OF CONFIDENTIALITY OBLIGATIONS (INCLUDING A BREACH OF
OBLIGATIONS REGARDING PROTECTED HEALTH INFORMATION), SHALL BE LIMITED TO $1,000,000.
(c) DAMAGES ARISING FROM A PARTY'S WILLFUL MISCONDUCT OR CRIMINAL CONDUCT SHALL NOT BE LIMITED.
12.3. GENERAL LIABILITY. EXCEPT AS EXPRESSLY PROVIDED "SPECIFIC LIABILITY," ESO'S MAXIMUM AGGREGATE
LIABILITY FOR ALL CLAIMS OF LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT SHALL NOT
EXCEED THE FEES PAID BY (OR ON BEHALF OF) CUSTOMER WITHIN THE PRECEDING 12-MONTH PERIOD UNDER
THE APPLICABLE ORDER OR EXHIBIT GIVING RISE TO THE CLAIM.
12.4. THE FOREGOING LIMITATIONS, EXCLUSIONS, DISCLAIMERS SHALL APPLY REGARDLESS OF WHETHER THE CLAIM
FOR SUCH DAMAGES IS BASED IN CONTRACT, WARRANTY, STRICT LIABILITY, NEGLIGENCE, TORT OR OTHERWISE.
INSOFAR AS APPLICABLE LAW PROHIBITS ANY LIMITATION HEREIN, THE PARTIES AGREE THAT SUCH LIMITATION
SHALL BE AUTOMATICALLY MODIFIED, BUT ONLY TO THE EXTENT SO AS TO MAKE THE LIMITATION PERMITTED TO
THE FULLEST EXTENT POSSIBLE UNDER SUCH LAW. THE PARTIES AGREE THAT THE LIMITATIONS SET FORTH
HEREIN ARE AGREED ALLOCATIONS OF RISK CONSTITUTING IN PART THE CONSIDERATION FOR ESO'S SOFTWARE
AND SERVICES TO CUSTOMER, AND SUCH LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF THE
ESSENTIAL PURPOSES OF ANY LIMITED REMEDY AND EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH LIABILITIES.
12.5. THIS SECTION 12 SHALL SURVIVE EXPIRATION OR TERMINATION OF THE AGREEMENT.
13. CUSTOMER DATA & PRIVACY
13.1. Ownership of Data. As between ESO and Customer, all Customer Data shall be owned by Customer.
13.2. Use of Customer Data. Unless it receives Customer's prior written consent, ESO shall not grant any third -party access to
Customer Data, except (a) subcontractors that are subject to a reasonable nondisclosure agreement or (b) authorized
participants in the case of Software designed to permit Customer to transmit Customer Data. ESO may only use and disclose
Customer Data to fulfill its obligations under this Agreement or as required by applicable law or legal or governmental authority.
ESO shall give Customer prompt notice of any such legal or governmental demand and reasonably cooperate with Customer in
any effort to seek a protective order or otherwise contest such required disclosure, at Customer's expense.
13.3. De -identified Data. CUSTOMER ACKNOWLEDGES AND AGREES THAT, NOTWITHSTANDING ANY OTHER PROVISION
HEREIN, ESO MAY USE DE -IDENTIFIED DATA FOR INTERNAL AND EXTERNAL PURPOSES (INCLUDING
BENCHMARKING AND RESEARCH), PROVIDED THAT ESO WILL NOT SELL DE -IDENTIFIED DATA TO THIRD PARTIES
FOR COMMERCIAL USE. Without limiting the foregoing, ESO will own all right, title and interest in all Intellectual Property of
any aggregated and de -identified reports, summaries, compilations, analysis, statistics or other information derived therefrom.
13.4. Internet Access. Customer is solely responsible for obtaining, maintaining, and securing its network connections, and
acknowledges such connections are essential to the effective operation of the Software. ESO makes no representations to
Customer regarding the reliability, performance or security of any network or service provider not provided or managed by ESO.
14. WORK PRODUCT
14.1. Work Product Qwnersltlp. In the event Customer hires ESO to perform Professional Services, ESO alone shall hold all right, title,
and interest to all proprietary and intellectual property rights of the Deliverables (including, without limitation, patents, trade
secrets, copyrights, and trademarks), as well as title to any copy of software made by or for Customer (if applicable). Customer
hereby explicitly acknowledges and agrees that nothing in this Agreement or a separate Order gives the Customer any right, title,
or interest to the intellectual property or proprietary know-how of the Deliverables.
15. GOVERNMENT PROVISIONS
15.1. Compliance With Laws. Both parties shall comply with and give all notices required by all applicable federal, state and local laws,
ordinances, rules, regulations and lawful orders of any public authority bearing on use of the Software and the performance of
this Agreement (provided that Customer shall be solely responsible for any such notice required to be given to its employees,
agents or patients). Customer acknowledges and agrees that it must fully and accurately report discounts or other incentives
under this Agreement on any cost reports or other applicable claims for payment submitted under any federal health care
program, including but not limited to Medicare and Medicaid, as required by federal law.
15.2. Buseh.. Associate Apreemert The parties agree to the terms of the Business Associate Agreement attached as Exhibit C and
incorporated herein by reference.
CONFIDENTIAL ESO ESA v230425 16
15.3. dual Ormortunity. The parties shall abide by the requirements of 41 CFR 60-1.4(a), 60-300.5(a) and 60-741.5(a), and the
posting requirements of 29 CFR Part 471, appendix A to subpart A, if applicable (prohibiting discrimination on the basis of
protected veteran status, disability, race, color, religion, sex, sexual orientation, gender identity or national origin).
15.4. Excluded PartiesList ESO agrees to report to Customer if an employee or contractor is listed by a federal agency as debarred,
excluded or otherwise ineligible for participation in federally funded health care programs.
16. PHI ACCURACY & COMPLETENESS
16.1. Customer Responsibilities. The Software allows Customer and its Users to enter, document, and disclose Customer Data, and
as such, ESO gives no representations or guarantees about the accuracy or completeness of Customer Data (including PHI)
entered, uploaded or disclosed through the Software. Customer is solely responsible for any decisions or actions taken involving
patient care or patient care management, whether those decisions or actions were made or taken using information received
through the Software.
16.2. HDE Customer Codifications. In the interest of furthering community health through the power of data, ESO encourages
Customers subscribing to ESO's Health Data Exchange ("HDE") Software to empower joint healthcare providers by incorporating
relevant, HIPAA-compliant data elements in Customer's outgoing patient care records delivered through HDE. ESO shall
annually accredit qualifying customers with Gold, Silver, or Bronze level certifications in accordance with Exhibit C, and
Customer may reference such certification in marketing materials.
17. MISCELLANEOUS
17.1. jnd oendent Contactors. actors. The parties are independent contractors. Neither party is the agent of the other, and neither may make
commitments on the other's behalf. The parties agree that no ESO employee or contractor is or will be considered an employee
of Customer.
17.2. Notices. Notices provided under this Agreement must be in writing and delivered by (a) certified mail, return receipt requested to
a party's principal place of business as forth in the recitals on page 1 of this Agreement, (b) hand delivered, (c) facsimile with
receipt of a "Transmission Confirmed" acknowledgment, (d) e-mail to a person designated in writing by the receiving party, or (e)
delivery by a reputable ovemight carrier service. In the case of delivery by facsimile or e-mail, the notice must be followed by a
copy of the notice being delivered by a means provided in (a), (b) or (e). The notice will be deemed given on the day the notice
is received.
17.3. Mercer Clause. In entering into this Agreement, neither party is relying upon any representations or statements of the other that
are not fully expressed in this Agreement; rather, each party is relying on its own judgment and due diligence and expressly
disclaims reliance upon any representations or statement not expressly set forth in this Agreement. In the event the Customer
issues a purchase order, letter or any other document addressing the Software or Services to be provided and performed
pursuant to this Agreement, it is hereby specifically agreed and understood that any such writing is for the Customer's internal
purposes only, and that any terms, provisions, and conditions contained therein shall in no way modify this Agreement.
17.4. Eeverabilitv. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any
clause of this Agreement invalid or otherwise unenforceable in any respect. If a provision of this Agreement is held to be invalid
or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by
applicable law, and the remaining provisions of this Agreement will continue in full force and effect.
17.5. Subcontracting: Except for Support Services, and training and implementation services related to the Software, neither party may
subcontract or delegate its obligations to each other hereunder, nor may it contract with third parties to perform any of its
obligations hereunder except as contemplated in this Agreement, without the other party's prior written consent.
17.6. modifications and Amendments. This Agreement may not be amended except through a written agreement signed by authorized
representatives of each party, provided that the Customer agrees that ESO may rely on informal writings (including emails) of
Customer's authorized representatives to (i) terminate Software products and services and (ii) approve or ratify rate or tier
increases for Software products and services then in use by Customer.
17.7. Force Moisture. No delay, failure, or default will constitute a breach of this Agreement to the extent caused by acts of war,
terrorism, hurricanes, earthquakes, other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil
disorder, embargoes, or other causes beyond the performing party's reasonable control (collectively, "Force Majeure"). In such
event, however, the delayed party must promptly provide the other party notice of the Force Majeure. The delayed party's time
for performance will be excused for the duration of the Force Majeure, but if the event last longer than 30 days, the other party
may immediately terminate the applicable Order.
17.8. Marketing. If requested by ESO, Customer agrees to reasonably cooperate with ESO's preparation and issuance of a public
announcement regarding the relationship of the parties.
17.9. Waiver & Srea h. Neither party will be deemed to waive any rights under this Agreement except through an explicit written
waiver made by an authorized representative. No waiver of a breach of this Agreement will constitute a waiver of any other
breach hereof.
CONFIDENTIAL ESO ESA v230425 17
17.10. Survival of Terms. Unless otherwise stated, all of ESO's and Customer's respective obligations, representations and warranties
under this Agreement which are not, by the expressed terms of this Agreement, fully to be performed while this Agreement is in
effect shall survive the termination of this Agreement.
17.11. AntiqUOUS Terms. This Agreement will not be construed against any party by reason of its preparation.
17.12. Governing. Law. This Agreement, any claim dispute or controversy hereunder (a "Dispute") will be governed by (i) the laws of
the State of Texas, or (ii) if Customer is a city, county, municipality or other governmental entity, the law of state where Customer
is located, in each case foregoing without regard to its conflicts of law. The UN Convention for the International Sale of Goods
and the Uniform Computer Information Transactions Act will not apply. In any Dispute, each party will bear its own attorneys'
fees and costs and expressly waives any statutory right to attorneys' fees.
17.13.J ew Versions & Sunset. If ESO releases a New Version of Licensed Software (Le., not SaaS), Customer may elect to receive
such New Version, subject to a relicense fee of 75% of the standard price for such new version. All New Versions provided under
this Agreement will constitute Licensed Software and be subject to the terms and conditions of this Agreement. ESO may
discontinue Support Services for Licensed Software upon 12 months' notice to Customer.
17.14. No Class Actions. NEITHER PARTY SHALL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER
ESO CUSTOMERS, OR PURSUE ANY CLAIM AS A REPRESENTATIVE OR CLASS ACTION OR IN A PRIVATE ATTORNEY
GENERAL CAPACITY.
17.15. Dispute Resplutlon. Customer and ESO will attempt to resolve any Dispute through negotiation or by utilizing a mediator agreed
to by the parties, rather than through litigation. Negotiations and mediations will be treated as confidential. If the parties are
unable to reach a resolution within 30 days of notice of the Dispute to the other party, the parties may pursue all other courses of
action available at law or in equity.
17.16.Technoi0PV EIPOrl. Customer shall not: (a) permit any third 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 in compliance with
all applicable U.S. laws and regulations. Without limiting the generality of the foregoing, Customer shall not permit any third party
to access or use the Software in, or export such software to, a country subject to a United States embargo (as of the Effective
Date - Cuba, Iran, North Korea, Sudan, and Syria).
17.17.Order of Precedence. In the event of any conflict between this Agreement, Addenda or other attachments incorporated herein,
the following order of precedence will govern: (1) the General Terms and Conditions; (2) any Business Associate Agreement; (3)
the applicable Order, with most recent Order taking precedence over earlier ones; and (4) any ESO policy posted online,
including without limitation its privacy policy. No amendments incorporated into this Agreement after execution of the General
Terms and Conditions will amend such General Terms and Conditions unless it specifically states its intent to do so and cites the
section or sections amended.
17.18. Counterparts. This Agreement may be executed in one or more counterparts. Each counterpart will be an original, and all such
counterparts will constitute a single instrument.
17.19. ' natures. Electronic signatures on this Agreement or on any Order (or copies of signatures sent via electronic means) are the
equivalent of handwritten signatures.
CONFIDENTIAL ESO ESA v230425 l 8
EXHIBIT B
SUPPORT SERVICES
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).
1.10. "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).
1.11. "Severity 4 Error" means any error related to Documentation or a Customer Enhancement request.
1.12. "Status Update" means if the initial Workaround or Fix cannot resolve the Error, notification of the Customer regarding the
progress of the Workaround or Fix.
1.13. "Online Support" means information available through ESO's website (, r,eso.con°t), including frequently asked questions
and bug reporting via Live Chat.
1.14. "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.
1.15. "Update" means an update or revision to Software, typically for Error Correction.
1.16. "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.
1.17. "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); (b) Enhancements, Updates and Upgrades that ESO,
in its discretion, makes generally available to its customers without additional charge; and (c) E-mail Support, telephone
support, and Online Support. ESO may use multiple forms of communication for purposes of submitting periodic status reports
CONFIDENTIAL ESO ESA v230425 19
to Customer, 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.
2.5. ESO will provide responses to a technology and/or security assessment of reasonable detail (a "Tech Assessment") upon
request prior to (or in connection with) implementation. ESO will provide responses to any subsequent Tech
Assessments provided that Customer compensates ESO at its then -current and standard consulting rates for all work
performed in connection with such Tech Assessments.
ERROR PRIORITY LEVELS. Customer will report all Errors to ESO via ESO's Support Request Form link (New Case Form -
ESO) 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.
2.6. Severity 1 Error. ESO shall (i) commence Error Correction promptly; (ii) provide an Initial Response within four hours; (iii)
initiate Management Escalation promptly; and (iv) provide Customer with a Status Update within four hours if ESO cannot
resolve the Error within four hours.
2.7. Seventy 2 Error. ESO shall (i) commence Error Correction promptly; (ii) provide an Initial Response within eight hours; (iii)
initiate Management Escalation within 48 hours if unresolved; and (iv) provide Customer with a Status Update within forty-eight
hours if ESO cannot resolve the Error within forty-eight hours.
2.8. 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.
2.9. Sever* 4 Erro . ESO shall provide an Initial Response within seven calendar days.
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.
EXCLUSIONS.
4.1. 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.
4.2. 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.
4.3. ESO is not required to perform any Error Correction unless ESO can replicate such Error on its own software and hardware or
through remote access to Customer's software and hardware.
4.4. 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.
5. 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.
CONFIDENTIAL ESO ESA v230425 110
EXHIBIT C
BUSINESS ASSOCIATE ABBE NIT
Customer and ESO Solutions, Inc. ("Business Associate") agree that this HIPAA Business Associate Agreement is entered into for the
benefit of Customer, which is a covered entity under the Privacy Standards ("Covered Entity"). Pursuant to the ESO Subscription
Agreement (the "Agreement") into which this HIPAA Business Associate Agreement (this "BAA") has been incorporated, Business
Associate may perform functions or activities involving the use and/or disclosure of PHI on behalf of the Covered Entity, and therefore,
Business Associate may function as a business associate. Business Associate, therefore, agrees to the following terms and conditions.
1. Scope. This BAA 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 BAA, 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").
3Compliance With Applicable Lew: The parties acknowledge and agree that, beginning with the relevant effective date, Business
Associate shall comply with its obligations under this BAA 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 BAA is executed and as they are
amended, for so long as this BAA 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, as required by law, or as permitted by the Agreement. 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 Limi %dons on Use and Disclosure of PIA. 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. - Rebuffed Safeguards to Protect PHI. Business Associate shall use appropriate safeguards, and comply with Subpart C of 45 C.F.R.
Part 164 ("Security Rule") with respect to electronic PHI, to prevent the use or disclosure of PHI other than pursuant to the terms
and conditions of this BAA.
7 Reporting to Covered Entity. Business Associate shall report to the affected Covered Entity without unreasonable delay: (a) any use
or disclosure of PHI not provided for by the Agreement of which it becomes aware; (b) any breach of unsecured PHI in accordance
with 45 C.F.R. Subpart D of 45 C.F.R. 164 ("Breach Notification Rule"); and (c) any security incident of which it becomes aware.
With regard to Security Incidents caused by or occurring to Business Associate, Business Associate shall cooperate with the
Covered Entity's investigation, analysis, notification and mitigation activities, and except for Security Incidents caused by Covered
Entity, shall be responsible for reasonable costs incurred by the Covered Entity for those activities. Notwithstanding the foregoing,
Covered Entity acknowledges and shall be deemed to have received advanced notice from Business Associate that there are
routine occurrences of: (i) unsuccessful attempts to penetrate computer networks or services maintained by Business Associate;
and (ii) immaterial incidents such as "pinging" or "denial of services" attacks.
8. Mitigation of Harmful Effects. Business Associate agrees to mitigate, to the extent practicable, any harmful effect of a use or
disclosure of PHI by Business Associate in violation of the requirements of the Agreement, including, but not limited to, compliance
with any state law or contractual data breach requirements.
9Aar . ents 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
BAA with respect to such PHI.
10. ,Access toPHI. Within five business days of a request by a Covered Entity for access to PHI about an individual contained in a
Designated Record Set, Business Associate shall make available to the Covered Entity such PHI for so long as such information is
maintained by Business Associate in the Designated Record Set, as required by 45 C.F.R. 164.524. In the event any individual
delivers directly to Business Associate a request for access to PHI, Business Associate shall within five (5) business days forward
such request to the Covered Entity.
CONFIDENTIAL ESO ESA v230425 111
11 Amendment of PH1. Within five business days of receipt of a request from a Covered Entity for the amendment of an individual's PHI
or a record regarding an individual contained in a Designated Record Set (for so long as the PHI is maintained in the Designated
Record Set), Business Associate shall provide such information to the Covered Entity for amendment and incorporate any such
amendments in the PHI as required by 45 C.F.R. 164.526. In the event any individual delivers directly to Business Associate a
request for amendment to PHI, Business Associate shall within five business days forward such request to the Covered Entity.
12. raentatiorr 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. Amounting Di Icisures. Within five business days of notice by a Covered Entity to Business Associate that it has received a
request for an accounting of disclosures of PHI, Business Associate shall make available to a Covered Entity information to permit
the Covered Entity to respond to the request for an accounting of disclosures of PHI, as required by 45 C.F.R. 164.528 and HITECH.
14. Other Chiloations. 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 Adrnir i five P +: endings. In the event Business Associate receives a subpoena, court or administrative order or
other discovery request or mandate for release of PHI, the affected Covered Entity shall have the right to control Business
Associate's response to such request, provided that, such control does not have an adverse impact on Business Associate's
compliance with existing laws. Business Associate shall notify the Covered Entity of the request as soon as reasonably practicable,
but in any event within seven business days of receipt of such request.
16. Avallatlillty of Books and Reasrds. 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. Br=:ch of Contract by Business Associate. In addition to any other rights a party may have in the Agreement, this BAA 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 BAA; or ii) at the non -breaching party's option, permit the breaching party to cure or end any such violation within the time
specified by the non -breaching party. The non -breaching party's option to have cured a breach of this BAA shall not be construed as
a waiver of any other rights the non -breaching party has in the Agreement, this BAA or by operation of law or in equity.
18. Effect of Termination ofAarement, Upon the termination of the Agreement or this BAA 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 BAA, even after termination of the Agreement or
BAA, until such time as all PHI has been returned or otherwise destroyed as provided in this Section. For the avoidance of doubt,
de -identified Customer Data shall not be subject to this provision.
19. Injunctive Relief. Business Associate stipulates that its unauthorized use or disclosure of PHI while performing services pursuant to
this BAA 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. Bafequards and Acoror Clete Use of Protected Health informed n. Covered Entity is responsible for implementing appropriate
privacy and security safeguards to protect its PHI in compliance with HIPAA. Without limitation, it is Covered Entity's obligation to:
21.1. Not include PHI in information Covered Entity submits to technical support personnel through a technical support request or to
community support forums. In addition, Business Associate does not act as, or have the obligations of a Business Associate
under the HIPAA Rules with respect to Customer Data once it is sent to or from Covered Entity outside ESO's Software over
the Internet; and
21.2. Implement privacy and security safeguards in the systems, applications, and software Covered Entity controls, configures and
connects to ESO's Software.
22. Third Party Rights. The terms of this BAA do not grant any rights to any parties other than Business Associate and the Covered Entity.
23. Ekmatures. The signatures to the Agreement (or the document evidencing the parties' adoption thereof) indicate agreement hereto
and shall be deemed signatures hereof, whether manual, electronic or facsimile.
CONFIDENTIAL ESO ESA v230425 112