HomeMy WebLinkAboutResolution - 2022-R0526 - Agreement 17011 with ESO Solutions, Inc. 12.13.22Resolution No. 2022-RO526
Item No. 5.25
December 13, 2022
RESOLUTION
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK:
THAT the Mayor of the City of Lubbock is hereby authorized and directed to execute for and
on behalf of the City of Lubbock, Contract No. 17011, as per RFP 22-16295-MA, for an
integrated public system for Lubbock Fire Rescue, by and between the City of Lubbock and
ESO Solutions, Inc., of Austin, Texas, and all related documents. Said Contract is attached
hereto and incorporated in this resolution as if fully set forth herein and shall be included in the
minutes of the City Council.
Passed by the City Council on
ATTEST:
10 , &P'o , - )\I(,-
Rebec a Garza, City Secreid
APPROVED AS TO CONTENT:
Brooke Witcher, Assistant City Manager
APPROVED AS TO
Assistant City Attorney
RES.Contract No. 17011, ESO Solutions, Inc.
11.21.22
December 13, 2022
1
i
i
T ,MAYOR
Resolution No. 2022-R0526
City of Lubbock, TX
Integrated Public System
Agreement
Contract 17011
This Service Agreement (this "Agreement") is entered into as of the 13day of December 2022
("Effective Date") by and between ESO Solutions, Inc. (Contractor), and the City of Lubbock (the "City").
RECITALS
WHEREAS, the City has issued a Request for Proposals RFP 22-16295-MA, Integrated Public
System and
WHEREAS, the proposal submitted by the Contractor has been selected as the proposal which best
meets the needs of the City for this service; and
WHEREAS, Contractor desires to perform as an independent contractor to provide Integrated Public
System Solution, upon terms and conditions maintained in this Agreement; and
. NOW THEREFORE, for and in consideration of the mutual promises contained herein, the City and
Contractor agree as follows:
City and Contractor acknowledge the Agreement consists of the following exhibits which are
attached hereto and incorporated herein by reference, listed in their order of priority in the event of
inconsistent or contradictory provisions:
1. This Agreement
2. Exhibit A — Best and Final Offer
3. Exhibit B — Contractor's Master Subscription and License Agreement
4. Exhibit C — Insurance Requirements
Scope of Work
Contractor shall provide the services that are specified in Exhibit A. The Contractor shall comply with all
the applicable requirements set forth in Exhibit B and Exhibit C attached hereto.
Article 1
1.1 The contract shall be for a five years said date of term beginning upon formal approval. The
Contractor must maintain the insurance coverage required during the term of this contract
including any extensions. It is the responsibility of the Contractor to ensure that valid
insurance is on file with the Purchasing and Contract Management Department as required
by contract or contract may be terminated for non-compliance.
1.2 The Contractor shall not assign any interest in this Agreement and shall not transfer any
interest in the Agreement, whatsoever, without prior consent of the City.
1.3 All funds for payment by the City under this Agreement are subject to the availability of an
annual appropriation for this purpose by the City. In the event of non -appropriation of funds
by the City Council of the City of Lubbock for the goods or services provided under the
Agreement, the City will terminate the Agreement, without termination charge or other
liability, on the last day of the then -current fiscal year or when the appropriation made for
the then -current year for the goods or services covered by this Agreement is spent, whichever
event occurs first. If at any time funds are not appropriated for the continuance of this
Agreement, cancellation shall be accepted by the contractor on 30 days prior written notice,
but failure to give such notice shall be of no effect and the City shall not be obligated under
this Agreement beyond the date of termination.
1.4 This contract shall remain in effect until the first of the following occurs: (1) the expiration
date, (2) performance of services ordered, or (3) termination of by either party with a 30 day
written notice.
Article 2 Miscellaneous.
2.1 This Agreement is made in the State of Texas and shall for all purposes be construed in
accordance with the laws of said State, without reference to choice of law provisions.
2.2 This Agreement is performable in, and venue of any action related or pertaining to this
Agreement shall lie in, Lubbock, Texas.
2.3 This Agreement and its Exhibits contains the entire agreement between the City and
Contractor and supersedes any and all previous agreements, written or oral, between the
parties relating to the subject matter hereof. No amendment or modification of the terms of
this Agreement shall be binding upon the parties unless reduced to writing and signed by
both parties.
2.4 This Agreement may be executed in counterparts, each of which shall be deemed an original.
2.5 In the event any provision of this Agreement is held illegal or invalid, the remaining
provisions of this Agreement shall not be affected thereby.
2.6 The waiver of a breach of any provision of this Agreement by any parties or the failure of
any parties otherwise to insist upon strict performance of any provision hereof shall not
constitute a waiver of any subsequent breach or of any subsequent failure to perform.
2.7 This Agreement shall be binding upon and inure to the benefit of the parties and their
respective heirs, representatives and successors and may be assigned by Contractor or the
City to any successor only on the written approval of the other party.
2.8 All claims, disputes, and other matters in question between the Parties arising out of or
relating to this Agreement or the breach thereof, shall be formally discussed and negotiated
between the Parties for resolution. In the event that the Parties are unable to resolve the
claims, disputes, or other matters in question within 30 days of written notification from the
aggrieved Party to the other Party, the aggrieved Party shall be free to pursue all remedies
available at law or in equity.
2.9 At any time during the term of the contract, or thereafter, the City, or a duly authorized audit
representative of the City or the State of Texas, at its expense and at reasonable times,
reserves the right to audit Contractor's records and books relevant to all services provided to
the City under this Contract. In the event such an audit by the City reveals any errors or
overpayments by the City, Contractor shall refund the City the full amount of such
overpayments within 30 days of such audit findings, or the City, at its option, reserves the
right to deduct such amounts owing the City from any payments due Contractor.
2.10 The City reserves the right to exercise any right or remedy to it by law, contract, equity, or
otherwise, including without limitation, the right to seek any and all forms of relief in a court
of competent jurisdiction. Further, the City shall not be subject to any arbitration process
prior to exercising its unrestricted right to seek judicial remedy. The remedies set forth herein
are cumulative and not exclusive, and may be exercised concurrently. To the extent of any
conflict between this provision and another provision in, or related to, this provision, the
terms and conditions provided herein shall prevail.
2.11 The contractor shall not assign or sublet the contract, or any portion of the contract, without
written consent from the Director of Purchasing and Contract Management. Should consent
be given, the Contractor shall insure the Subcontractor or shall provide proof of insurance
from the Subcontractor that complies with all contract insurance requirements document, this
provision shall control.
2.12 Contractor acknowledges by supplying any Goods or Services that the Contractor has read,
fully understands, and will be in full compliance with all terms and conditions and the
descriptive material contained herein and any additional associated documents and
Amendments. The City disclaims any terms and conditions provided by the Contractor unless
agreed upon in writing by the parties. In the event of conflict between these terms and
conditions and any terms and conditions provided by the Contractor, the terms and conditions
provided herein shall prevail. The terms and conditions provided herein are the final terms
agreed upon by the parties, and any prior conflicting terms shall be of no force or effect.
2.13 Contractor acknowledges by supplying any Goods or Services that the Contractor has read,
fully understands, and will be in full compliance with all terms and conditions and the
descriptive material contained herein and any additional associated documents and
Amendments. The City disclaims any terms and conditions provided by the Contractor unless
agreed upon in writing by the parties. In the event of conflict between these terms and
conditions and any terms and conditions provided by the Contractor, the terms and conditions
provided herein shall prevail. The terms and conditions provided herein are the final terms
agreed upon by the parties, and any prior conflicting terms shall be of no force or effect.
2.14 Contracts with Companies Engaged in Business with Iran, Sudan, or Foreign Terrorist
Organization Prohibited. Pursuant to Section 2252.152 of the Texas Government Code,
prohibits the City from entering into a contract with a vendor that is identified by The
Comptroller as a company known to have contracts with or provide supplies or service with
Iran, Sudan or a foreign terrorist organization.
2.15 Texas Public Information Act. The requirements of Subchapter J, Chapter 552, Government
Code, may apply to this contract and the contractor or vendor agrees that the contract can be
terminated if the contractor or vendor knowingly or intentionally fails to comply with a
requirement of that subchapter. To the extent Subchapter J, Chapter 552, Government Code
applies to this agreement, Contractor agrees to: (1) preserve all contracting information
related to the contract as provided by the records retention requirements applicable to the
governmental body for the duration of the contract; (2) promptly provide to the governmental
body any contracting information related to the contract that is in the custody or possession
of the entity on request of the governmental body; and (3) on completion of the contract,
either: (A) provide at no cost to the governmental body all contracting information related to
the contract that is in the custody or possession of the entity; or (B) preserve the contracting
information related to the contract as provided by the records retention requirements
applicable to the governmental body.
2.16 No Boycott of Israel. Pursuant to Section 2271.002 of the Texas Government Code, a) This
section applies only to a contract that: (1) is between a governmental entity and a company
with 10 or more full-time employees; and (2) has a value of $100,000 or more that is to be
paid wholly or partly from public funds of the governmental entity. (b) A governmental entity
may not enter 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.
2.17 Texas Government Code 2274. By entering into this Agreement, Contractor verifies that: (1)
it does not, and will not for the duration of the contract, have a practice, policy, guidance,
or directive that discriminates against a firearm entity or firearm trade association or (2)
the verification required by Section 2274.002 of the Texas Government Code does not apply
to the contract. If Contractor is a company with 10 or more full-time employees and if this
Agreement has a value of at least $100,000 or more, Contractor verifies that, pursuant to
Texas Government Code Chapter 2274, it does not have a practice, policy, guidance, or
directive that discriminates against a firearm entity or firearm trade association; and will not
discriminate during the term of the contract against a firearm entity or firearm trade
association.
2.18 Contractor represents and warrants that: (1) it does not, and will not for the duration of the
contract, boycott energy companies or (2) the verification required by Section 2274.002 of
the Texas Government Code does not apply to the contract. If Contractor is a company with
10 or more full-time employees and if this Agreement has a value of at least $100,000 or
more, Contractor verifies that, pursuant to Texas Government Code Chapter 2274, it does
not boycott energy companies; and will not boycott energy companies during the term of the
Agreement. This verification is not required for an agreement where a governmental entity
determines that these requirements are inconsistent with the governmental entity's
constitutional or statutory duties related to the issuance, incurrence, or management of debt
obligations or the deposit, custody, management, borrowing, or investment of funds.
2.19 Confidentiality. The Contractor shall retain all information received from or concerning the
City and the City's business in strictest confidence and shall not reveal such information to
third parties without prior written consent of the City, unless otherwise required by law.
2.20 Indemnify. The Contractor shall indemnify and save harmless the city of Lubbock and its
elected officials, officers, agents, and employees from all suits, actions, losses, damages,
claims, or liability of any kind, character, type, or description, including without limiting the
generality of the foregoing, all expenses of litigation, court costs, and attorney's fees, for
injury or death to any person, or injury to any property, received or sustained by any person
or persons or property, to the extent arising out of, related to or occasioned by, the negligent
acts of the Contractor, its agents, employees, and/or subcontractors, related to the
performance, operations or omissions under this agreement and/or the use or occupation of
city owned property. The indemnity obligation provided herein shall survive the expiration
or termination of this agreement.
-----INTENTIONALLY LEFT BLANK-----
IN WITNESS WHEREOF, the parties hereto have caused this Contract to be executed the
day and year first above written. Executed in triplicate.
CITY OF LUBBOCK COrWCTOR
0 BY:
Tray Payne, Myy 4Auorized Representative
ATTEST:
Rebec Garza, City Secre
APPROVED AS TO CONTENT:
qJa C. Brown, Chief ormation Officer
APPROVED AS TO FORM
Ryan ok Assis nt eity Attorney
Robert Munden, Chief Legal & Compliance Officer
Print Name
11500 Alterra Parkway, Suite 100
Address
Austin, Texas 78758
City, State, Zip Code
Exhibit B
MASTER SUBSCRIPTION AND LICENSE AGREEMENT
This Master Subscription and License Agreement (this 'Agreement") is entered into as of December 13, 2022 ("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, "ESP) and the City of Lubbock on behalf of Lubbock Fire Rescue, having its principal place of business at 1515 East Ursuline Street,
Lubbock, TX 79403 ("Customer'). This Agreement consists of the General Terms & Conditions below and any Addenda (as defined below) executed by the
parties, including any attachments to such Addenda.
The parties have agreed that ESO will provide Customer certain technology products and/or services and that Customer will pay ESO certain fees.
Therefore, in consideration of the covenants, agreements and promises set forth below, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties, intending to be legally bound, hereby agree as follows.
GENERAL TERMS AND CONDITIONS
1. DEFINITIONS. Capitalized terms not otherwise defined in this Agreement 'Scheduled Downtime" means periods when ESO intentionally interrupts SaaS
have the meanings below:
'Add -On Software' means any complementary software components or
reporting service(s) that ESO makes available to customer through its
Software.
"Addendum" means a document addressing the order of a specific set of
products or services which is executed by authorized representatives of each
party. An Addendum may be (a) an ESO sales form or "Quote", (b) a Statement
of Work, or (c) another writing the parties intend to be incorporated by
reference into this Agreement.
"Anonym/zed Data" means Customer Data from which all personally
identifiable information is removed, as well as the names and addresses of
Customer and any of its Users and/or Customer's clients (and which, as a
consequence, is neither PHI nor identifiable to or by Customer).
"Customer Date" 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.
'Oellvereble' means software, report, or other work product created pursuant
to a Statement of Work.
"Documentation" means the Software's user guides and operating manuals.
"Feedback' refers to any suggestion or idea for improving or otherwise
modifying ESO's products or services.
"Intellectual Property' means trade secrets, copyrightable subject matter,
patents and patent applications, and other proprietary information, activities,
and any ideas, concepts, innovations, inventions and designs.
"Licensed Software'' means the executable, object code version of software
that ESO provides to Customer for its use and installation on Customer's own
equipment. For the avoidance of doubt, Licensed Software does not include
Add -on Software or SaaS.
"New Version" means any new version of Licensed Software (excluding SaaS
Software) that ESO may from time to time introduce and market generally as a
distinct licensed product, as may be indicated by ESO's designation of a new
version number, brand or product.
"Outage" means Customer is unable to access SaaS, or such access is
materially delayed, impaired or disrupted, in each case as caused or controlled
by ESO.
"Profession/Services" means professional services provided by ESO under a
Statement of Work.
"Protected Health Information" or "PH)" has the meaning set forth in HIPAX All
references herein to PHI shall be construed to include electronic PHI, or ePHI,
as that term is defined by HIPAA.
"ReportingServ/ces" 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.
"Sea.' 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.
to perform system maintenance or otherwise correct service errors during
non -peak hours (except for critical circumstances), typically between midnight
and 6 a.m. Central Time on a fortnightly basis.
'Software'' means any ESO computer program, programming or modules
specified in the Agreement or any Addendum. For the avoidance of doubt, Add -
on Software, SaaS, and Licensed Software are collectively referred to as
Software.
'Support Services" means those services described in Exhibit B.
"Tb/rd--Party Data' means data not owned by ESO but which is (or access to
which is) provided by ESO under a Software Schedule.
'Third-Pa*Service" means a service not provided by ESO but which is made
available by ESO in connection with its Software under a Software Schedule or
Addendum.
"Third -Party Software" means software not owned by ESO but which is (or
access to which is) provided by ESO under a Software Schedule or Addendum.
"Use Restrictions" means the restrictions imposed on Customer's use of
Software as described in Section 3.3.
"User' means any individual who uses the Software on Customer's behalf or
through Customer's account or passwords.
SOFTWARE ORDERS. During the Term, Customer may order Software
from ESO by signing an appropriate Addendum. Customer's license to
Licensed Software and its subscription to SaaS are set forth below. Each
such Addendum is incorporated herein by reference.
3. LICENSE/SUBSCRIPTION TO SOFTWARE
3.1. Grant of Subscription: SaaS. For SaaS, during the Term Customer may
access and use the SaaS and Reporting Services, with the access and
volume limitations set forth on the applicable Addendum, subject to
Customer's compliance with the Use Restrictions and other limitations
contained in this Agreement.
3.2. Grant of License: Licensed Software. For Licensed Software, during the
Term ESO hereby grants Customer a limited, non-exclusive, non-
transferable, non -assignable, non-sublicensable, revocable license to
copy and use the Licensed Software, in such quantities as are set forth
on the applicable Addendum and as necessary for Customer's internal
business purposes, in each case subject to Customer's compliance with
the Use Restrictions and other limitations and obligations contained in
this Agreement.
3.3. Use Restrictions. Except as provided in this Agreement or as otherwise
authorized by ESO, Customer has no right to, and shall not: (a)
decompile, reverse engineer, disassemble, print, copy or display the
Software or otherwise reduce the Software to a human -perceivable form
in whole or in part; (b) publish, release, rent, lease, loan, sell, distribute
or transfer the Software to another person or entity; ic7 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 Addendum).
3.4. Ownership. The rights granted under the provisions of this Agreement
do not constitute a sale of the Software. ESO retains all right, title, and
interest in and to the Software, including without limitation all software
used to provide the Software and all graphics, user interfaces, logos
and trademarks reproduced through the Software, except to the limited
extent set forth in this Agreement. This Agreement does not grant
Customer any intellectual property rights in the Software or any of its
components, except to the limited extent that this Agreement
specifically sets forth Customer's rights to access, use, or copy the
Software during the Term. Customer acknowledges that the Software
and its components are protected by copyright and other laws.
3.5. Third -Party Software and Services. This Section 3.5 applies to Third -
Party Software and Services offered by ESO. Refer to the product table
following the Agreement for applicability.
3.5.1. ESO neither accepts liability for, nor warrants the functionality,
utility, availability, reliability or accuracy of, Third -Party Software or
Third -Party Services. The Third -Party Software "EMS1 Academy"
and/or "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
http;ZZM w.praetorlandigs tal,comILMS-Mastera5eryice- greemenc
which shall supersede this Agreement as it applies to Customer's
use of Education and any Customer Data stored therein.
3.5.2. Third -Party Data. If Customer (as indicated on an Addendum) elects
to license Third -Party Data i e.g., fire codes), then subject to the
terms hereof, ESO hereby grants Customer a nonexclusive, non-
sublicensable, and non -transferable license during the Term to use
such Third -Party Data via the Software solely for Customer's internal
purposes. Customer will not (i) allow greater access than that set
forth in the applicable Addendum, (ii) disclose, release, distribute,
or deliver Third -Party Data, or any portion thereof, to any third party
(iii) copy, modify, or create derivative works of Third -Party Data, (iv)
rent, lease, lend, sell, sublicense, assign, distribute, publish,
transfer, or otherwise make available Third -Party Data, (v) attempt
to output in any form more than 10% of the Third -Party Data or
otherwise circumvent the usage limitations included in the
Software, (vi) remove any proprietary notices included within Third -
Party Data or Software, or (vii) use Third -Party Data in any manner
or for any purpose that infringes or otherwise violates any
proprietary right of a person, or that violates applicable law. ESO
does not warrant the functionality, reliability, accuracy,
completeness or utility of, Third -Party Data, or accept any liability
therefor. Additional terms and limitations applicable to Third -Party
Data may be provided on the applicable Addendum.
4. HOSTING, SLA & SUPPORT SERVICES
4.1. Hosting & Mana ement. Customer shall be responsible for hosting and
managing any Licensed Software on systems meeting the requirements
specified by ESO. ESO shall be responsible for hosting and managing
any SaaS.
4.2. Service Level Agreement. If an Outage, excluding Scheduled Downtime
(as defined below), results in the service level uptime falling below 99%
for any three-month period (the 'Upt(me Commitment'), then Customer
may immediately terminate this Agreement, in which case ESO will
refund any prepaid, unearned Fees to Customer. This is Customer's
sole remedy for ESO's breach of the Uptime Commitment.
4.3. Scheduled Downtime. ESO will endeavor to provide reasonable (72
hour) notice of Scheduled Downtime to Customer's Users. Notice of
Scheduled Downtime may be provided from within the Software or via
email. Scheduled Downtime shall never constitute a failure of
performance or Outage by ESO. Notification timelines and the frequency
of Scheduled Downtime are subject to the emergence of security
concerns outside of ESO's control.
4.4. Support and Updates. During the Term, ESO shall provide to Customer
the Support Services, in accordance with Exhibit B, which is
incorporated herein by reference.
5. FEES
5.1. FM. In consideration of the rights granted hereunder, Customer
agrees to pay ESO the fees for the Software and Professional Services
as set forth in the Addendum(s)) (collectively, 'Fees"). The Fees are non -
cancelable and non-refundable, except as expressly provided herein.
Customer (or Third -Party Payer, if applicable) shall pay all invoices
within 30 days of receipt.
5.2. Third -Party Paver. If Customer desires to use a third -party to pay some
or all of the Fees on behalf of Customer (a 'Tb/rdPa*Payer), then (i)
each applicable Addendum will identify such arrangement, (ii) the Third -
Party Payer will enter into a written agreement with ESO regarding such
arrangement, (iii) Customer may replace the Third -Party Payer by written
notice to ESO (provided that no such change shall be made until the
then -current Term's renewal), (iv) references within this Section 5 to
Customer's responsibility for Fees shall be understood to refer to the
Third -Party Payer when applicable, and (v) Customer shall remain
responsible for payment if the Third -Party Payer does not pay the Fees.
5.3. Uplift on Renewal. Fees for Software, which recur annually, shall
increase by 3% each year this Agreement is in effect.
5.4. Taxes and Fees. The Fees are exclusive of all taxes and credit card
processing fees, if applicable. Unless and until Customer provides ESO
a tax exemption certificate, Customer will be responsible for and will
remit (or will promptly reimburse ESO for) all taxes of any kind, including
sales, use, duty, customs, withholding, property, value-added, and other
similar federal, state or local taxes (other than taxes based on ESO's
income) related to this Agreement.
5.5. Appropriation of Funds. If Customer is a city, county or other
government entity, Customer may terminate the Agreement at the end
of the Customer's fiscal term if Customer provides evidence that its
governing body did not appropriate sufficient funds for the next fiscal
year. Notwithstanding the foregoing, this provision shall not excuse
Customer from past payment obligations or other Fees earned and
unpaid.
5.6. Usage Monitoring. Customer is solely responsible for its own adherence
to volume and use limitations indicated on the applicable Addendum.
ESO may monitor Customer's use of the Software, and if Customer's
usage exceeds the level indicated in the applicable Addendum (an
'Overage"), Customer shall owe ESO the Fee corresponding to such
usage level at a rate no higher than ESO's then -standard pricing for new
customers at an equivalent usage level. ESO may invoice for Overages
immediately.
6. TERM AND TERMINATION
6.1. Term. The term of this Agreement (the'Temf) commences on the
Effective Date and continues for a period of one year (or any longer
period provided in an Addendum). Thereafter, the Term will renew for
successive one-year periods unless written notice is provided at least
60 days prior to the anniversary of the Effective Date.
6.2. Termination for Cause. Either party may terminate this Agreement or
any individual Addendum for the other parry'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 parry.
6.3. Effect of Termination.
6.3.1. If Customer terminates this Agreement or any Addendum as a result
of ESO's material breach, then to the extent Customer prepaid any
Fees, ESO shall refund to Customer those prepaid Fees on a pro -
rats basis from the date Customer actually ceases use of the
Software.
6.3.2. Upon termination of this Agreement or any Addendum, Customer
shall cease all use of the Software and delete, destroy or return all
V.
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copies of the Documentation and Licensed Software in its
possession or control, except as required by law. Customer shall
remain obligated to pay appropriate Fees at ESO's then -current
rates if Customer continues to use or access Software after the
termination or expiration of this Agreement. If Customer's
Agreement includes a multi -year discount plan with diminishing
discounts, and Customer terminates the Agreement prior to the
completion of the discount plan, Customer shall promptly pay ESO's
invoice recouping such discounts for a maximum of two years prior
to the date of termination.
6.3.3. Termination of this Agreement is without prejudice to any other right
or remedy and shall not release a party from any liability
6.4. Deliveryof 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 Performance of Software. After it is fully implemented (and
subject to Customer's adherence to Sections 3.3, 4.1 and 13.4), ESO
warrants that the Software will reliably collect, transmit, store and/or
permit access to data in compliance with applicable law and industry
standards.
7.2. Due Authority. Each party's execution, delivery and performance of this
Agreement and each agreement or instrument contemplated by this
Agreement is duly authorized by all necessary corporate or government
action.
7.3. Customer Cooperation. Customer agrees to use current operating
systems and reasonably and timely cooperate with ESO, including
providing ESO reasonable access to its equipment, software and data
as necessary for the implementation and operation of the Software.
8. DISCLAIMER OF WARRANTIES. EXCEPT AS OTHERWISE PROVIDED IN
SECTION 7, ESO DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS
FOR A PARTICULAR PURPOSE, PERFORMANCE, SUITABILITY, TITLE, NON -
INFRINGEMENT, OR ANY IMPLIED WARRANTY ARISING FROM STATUTE,
COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE.
EXCEPT AS EXPRESSLY PROVIDED IN SECTION 7, CUSTOMER ACCEPTS
THE SOFTWARE "AS -IS" AND "AS AVAILABLE."
9. CONFIDENTIALITY
9.1. 'Con>Sdentia/lnfonnat/on" refers to the following items: (a) any
document marked "Confidential"; (b) any information orally designated
as "Confidential" at the time of disclosure, provided the disclosing party
confirms such designation In writing within five business days; (c) the
Software and Documentation, whether or not designated confidential;
(d) ESO's security controls, policies, procedures, audits, or other
information concerning ESO's internal security posture; (e) any other
nonpublic, sensitive information reasonably treated as trade secret or
otherwise confidential; and (f) Customer Data which does not comprise
PHI . Notwithstanding the foregoing, Confidential Information does not
include information that: (i) is in the other party's possession at the time
of disclosure free of duty of nondisclosure; (ii) is independently
developed without use of or reference to Confidential Information; (iii)
becomes known publicly, before or after disclosure, other than as a
result of the receiving party's improper action or inaction; (iv) is
approved for release in writing by the disclosing party; (v) as to ESO,
Customer's Feedback; or (vi) is PHI (which shall be governed by the
Business Associate Agreement rather than this Section).
9.2. Nondisclosure. Each party shall use Confidential Information of the
other party solely to fulfill the terms of this Agreement (the 'Purpose").
Each party shall (a) ensure that its employees or contractors are
bound by confidentiality obligations no less restrictive than those
contained herein, and (b) not disclose Confidential Information to any
other third party without prior written consent from the disclosing
party. Without limiting the generality of the foregoing, the receiving
party shall protect Confidential Information with the same degree of
care it uses to protect its own confidential information of similar
nature and importance, but with no less than reasonable care. A
receiving party shall promptly notify the disclosing party of any misuse
or misappropriation of Confidential Information of which it is aware.
9.3. Termination & Return. With respect to each item of Confidential
Information, the obligations of nondisclosure will terminate three years
after the date of disclosure; provided that, such obligations related to
Confidential Information constituting ESO's trade secrets shall continue
so long as such information remains subject to trade secret protection
pursuant to applicable law. Upon termination of this Agreement, a party
shall return all copies of Confidential Information to the other or certify
the destruction thereof.
9.4. Retention of Rights. This Agreement does not transfer ownership of
Confidential Information or grant a license thereto.
9.5. Open Records and Other Laws. Notwithstanding anything in this Section
to the contrary, the parties expressly acknowledge that Confidential
Information may be disclosed if such Confidential Information is
required to be disclosed by law, a lawful public records request, or
judicial order, provided that prior to such disclosure, written notice of
such required disclosure shall be given promptly and without
unreasonable delay by the receiving party in order to give the disclosing
party the opportunity to object to the disclosure and/or to seek a
protective order. The receiving party shall reasonably cooperate in this
effort. In addition, Customer may disclose the contents of this
Agreement solely for the purpose of completing its review and approval
processes under its local rules, if applicable.
10. INSURANCE. Throughout the Term (and for a period of at least three
years thereafter for any insurance written on a claims -made form) ESO
shall maintain in effect the insurance coverage described below:
10.1. Commercial general liability insurance with a minimum of $1 million per
occurrence and $1 million aggregate;
10.2. Commercial automobile liability insurance covering use of all non -
owned and hired automobiles with a minimum limit of $1 million for
bodily injury and property damage liability,
10.3. Worker's compensation insurance and employer's liability insurance or
any alternative plan or coverage as permitted or required by applicable
law, with a minimum employer's liability limit of $1 million each
accident or disease; and
10.4. Computer processor/computer professional liability insurance (a/k/a
technology errors and omissions) covering the liability for financial loss
due to error, omission or negligence of ESO, and privacy and network
security insurance ("cyber coverage") covering losses arising from a
disclosure of confidential information (including PHI) with a combined
aggregate amount of $1 million.
11. INDEMNIFICATION
11.1. IP Infrin¢ement. Subject to the limitations in Section 12, ESO shall
defend and indemnify Customer from any damages, costs, liabilities,
expenses (including reasonable attorney's fees) ('Damage.') 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'lndemn~C/alm"). If Customer
makes an Indemnified Claim under this Section or if ESO determines
that an Indemnified Claim may occur, ESO shall at its option: (a:F obtain
a right for Customer to continue using such Software; (b) modify such
Software to make it a non -infringing equivalent or (c) replace such
Software with a non -infringing equivalent. If (a), (b), or (c) above are
not reasonably practicable, either party may, at its option, terminate
the relevant Addendum, in which case ESO will refund any pre -paid
Fees on a pro-rata basis for such Addendum. Notwithstanding the
foregoing, ESO shall have no obligation hereunder for any claim
resulting or arising from (x) Customer's breach of this Agreement; (y)
modifications made to the Software not performed or provided by or
on behalf of ESO or (z) the combination, operation or use by Customer
(and/or anyone acting on Customer's behalf) of the Software in
connection with any other product or service (the combination or joint
use of which causes the alleged infringement). This Section 11 states
ESO's sole obligation and liability, and Customer's sole remedy, for
potential or actual intellectual property infringement by the Software.
11.2. Indemnification Procedures. Upon becoming aware of any matter
which is subject to the provisions of Sections 11.1(a "Claim"),
Customer must give prompt written notice of such Claim to ESO,
accompanied by copies of any written documentation regarding the
Claim received by the Customer. ESO shall compromise or defend, at
its own expense and with its own counsel, any such Claim. Customer
will have the right, at its option, to participate in the settlement or
defense of any such Claim, with its own counsel and at its own
expense; provided, however, that ESO will have the right to control
such settlement or defense. ESO will not enter into any settlement
that imposes any liability or obligation on Customer without the
Customer's prior written consent. The parties will cooperate in any
such settlement or defense and give each other full access to all
relevant information, at ESO's expense.
12. LIMITATION OF LIABILITY
12.1. LIMITATION OF DAMAGES. NEITHER ESO NOR CUSTOMER SHALL BE
LIABLE TO THE OTHER FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL,
PUNITIVE OR INCIDENTAL DAMAGES, INCLUDING CLAIMS FOR
DAMAGES FOR LOST PROFITS, GOODWILL, USE OF MONEY,
INTERRUPTED OR IMPAIRED USE OF THE SOFTWARE, AVAILABILITY OF
DATA, STOPPAGE OF WORK OR IMPAIRMENT OF OTHER ASSETS
RELATING TO THIS AGREEMENT.
12.2. SPEGFIC LIABILITY. LIABILITY SHALL BE LIMITED AS FOLLOWS:
(a) ESO'S OBLIGATIONS UNDER SECTION 11 SHALL BE LIMITED TO
$500,000.
(b) DAMAGES ARISING FROM A PARTY'S BREACH OF
CONFIDENTIALITY OBLIGATIONS (INCLUDING A BREACH OF
OBLIGATIONS REGARDING PROTECTED HEALTH INFORMATION),
SHALL BE LIMITED TO $1,000,000.
(c) DAMAGES ARISING FROM A PARTY'S WILLFUL MISCONDUCT OR
CRIMINAL CONDUCT SHALL NOT BE LIMITED.
12.3. GENERAL LIABILITY. EXCEPT AS EXPRESSLY PROVIDED "SPECIFIC
LIABILITY," ESO'S MAXIMUM AGGREGATE LIABILITY FOR ALL CLAIMS
OF LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS
AGREEMENT SHALL NOT EXCEED THE FEES PAID BY (OR ON BEHALF
OF) CUSTOMER WITHIN THE PRECEDING 12-MONTH PERIOD UNDER
THE APPLICABLE ADDENDUM OR EXHIBIT GIVING RISE TO THE CLAIM.
12.4. THE FOREGOING LIMITATIONS, EXCLUSIONS, DISCLAIMERS SHALL
APPLY REGARDLESS OF WHETHER THE CLAIM FOR SUCH DAMAGES IS
BASED IN CONTRACT, WARRANTY, STRICT LIABILITY, NEGLIGENCE,
TORT OR OTHERWISE. INSOFAR AS APPLICABLE LAW PROHIBITS ANY
LIMITATION HEREIN, THE PARTIES AGREE THAT SUCH LIMITATION
SHALL BE AUTOMATICALLY MODIFIED, BUT ONLY TO THE EXTENT SO
AS TO MAKE THE LIMITATION PERMITTED TO THE FULLEST EXTENT
POSSIBLE UNDER SUCH LAW. THE PARTIES AGREE THAT THE
LIMITATIONS SET FORTH HEREIN ARE AGREED ALLOCATIONS OF RISK
CONSTITUTING IN PART THE CONSIDERATION FOR ESO'S SOFTWARE
AND SERVICES TO CUSTOMER, AND SUCH LIMITATIONS WILL APPLY
NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSES OF
ANY LIMITED REMEDY AND EVEN IF A PARTY HAS BEEN ADVISED OF
THE POSSIBILITY OF SUCH LIABILITIES.
12.5. THIS SECTION 12 SHALL SURVIVE EXPIRATION OR TERMINATION OF
THE AGREEMENT.
13. CUSTOMER DATA & PRIVACY
13.1. Ownership of Data. As between ESO and Customer, all Customer Data
shall be owned by Customer.
13.2. Use of Customer Data. Unless it receives Customer's prior written
consent, ESO shall not grant any third -party access to Customer Data,
except (a) subcontractors that are subject to a reasonable
nondisclosure agreement or (b) authorized participants in the case of
Software designed to permit Customer to transmit Customer Data.
ESO may only use and disclose Customer Data to fulfill its obligations
under this Agreement or as required by applicable law or legal or
governmental authority. ESO shall give Customer prompt notice of any
such legal or governmental demand and reasonably cooperate with
Customer in any effort to seek a protective order or otherwise contest
such required disclosure, at Customer's expense.
13.3. Anonvmized Data. CUSTOMER ACKNOWLEDGES AND AGREES THAT,
NOTWITHSTANDING ANY OTHER PROVISION HEREIN, ESO MAY USE
ANONYMIZED DATA FOR INTERNAL AND EXTERNAL PURPOSES
INCLUDING BENCHMARKING AND RESEARCH), PROVIDED THAT ESO
WILL NOT SELL ANONYMIZED DATA TO THIRD PARTIES FOR
COMMERCIAL USE. Without limiting the foregoing, ESO will own all
right, title and interest in all Intellectual Property of any aggregated
and de -identified reports, summaries, compilations, analysis, statistics
or other information derived therefrom.
13.4. Internet Access. Customer is solely responsible for obtaining,
maintaining, and securing its network connections, and acknowledges
such connections are essential to the effective operation of the
Software. ESO makes no representations to Customer regarding the
reliability, performance or security of any network or service provider
not provided or managed by ESO.
14. WORK PRODUCT
14.1. Work Product Ownership. In the event Customer hires ESO to perform
Professional Services, ESO alone shall hold all right, title, and interest
to all proprietary and intellectual property rights of the Deliverables
(including, without limitation, patents, trade secrets, copyrights, and
trademarks), as well as title to any copy of software made by or for
Customer (if applicable). Customer hereby explicitly acknowledges and
agrees that nothing in this Agreement or a separate Addendum gives
the Customer any right, title, or interest to the intellectual property or
proprietary know-how of the Deliverables.
15. GOVERNMENT PROVISIONS
15.1. Compliance with Laws. Both parties shall comply with and give all
notices required by all applicable federal, state and local laws,
ordinances, rules, regulations and lawful orders of any public authority
bearing on use of the Software and the performance of this
Agreement.
15.2. Business Associate Addendum. The parties agree to the terms of the
Business Associate Addendum attached as Exhibit B and incorporated
herein by reference.
15.3. Eaual Opportunity. The parties shall abide by the requirements of 41
CFR 60-1.4(a), 60-300.5(a) and 60-741.5(a), and the posting
requirements of 29 CFR Part 471, appendix A to subpart A, if
applicable (prohibiting discrimination on the basis of protected veteran
status, disability, race, color, religion, sex, sexual orientation, gender
identity or national origin).
15.4. Excluded Parties List. ESO agrees to report to Customer if an employee
or contractor is listed by a federal agency as debarred, excluded or
otherwise ineligible for participation in federally funded health care
programs.
16. PHI ACCURACY & COMPLETENESS
16.1. Customer Responsibilities. The Software allows Customer and its
Users to enter, document, and disclose Customer Data, and as such,
ESO gives no representations or guarantees about the accuracy or
completeness of Customer Data (including PHI) entered, uploaded or
disclosed through the Software. Customer is solely responsible for any
decisions or actions taken involving patient care or patient care
management, whether those decisions or actions were made or taken
using information received through the Software.
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16.2. HOE Customer Certifications. In the interest of furthering community
health through the power of data, ESO encourages Customers
subscribing to ESO's Health Data Exchange ("HDE") Software to
empower joint healthcare providers by incorporating relevant, HIPAA-
compliant data elements in Customer's outgoing patient care records
delivered through HOE. 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
days, the other party may immediately terminate the applicable
Addendum.
17.8. M r in . If requested by ESO, Customer agrees to reasonably
cooperate with ESO's preparation and issuance of a public
announcement regarding the relationship of the parties.
17.9. Waiver & Breach. Neither party will be deemed to waive any rights
under this Agreement except through an explicit written waiver made
by an authorized representative. No waiver of a breach of this
17.1. Independent Contractors. The parties are independent contractors. 17.10.
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 mad, return receipt requested to a party's
principal place of business as forth in the recitals on page 1 of this
Agreement, (b) hand delivered, (c) facsimile with receipt of a
"Transmission Confirmed" acknowledgment, (d) e-mail to a person
designated in writing by the receiving party, or (e) delivery by a
reputable overnight carrier service. In the case of delivery by facsimile
or e-mail, the notice must be followed by a copy of the notice being
delivered by a means provided in (a), (b) or (e). The notice will be
deemed given on the day the notice is received.
17.3. Merger Clause. In entering into this Agreement, neither party is relying
upon any representations or statements of the other that are not fully
expressed in this Agreement; rather, each party is relying on its own
judgment and due diligence and expressly disclaims reliance upon any
representations or statement not expressly set forth in this Agreement.
In the event the Customer issues a purchase order, letter or any other
document addressing the Software or Services to be provided and
performed pursuant to this Agreement, it is hereby specifically agreed
and understood that any such writing is for the Customer's internal
Agreement will constitute a waiver of any other breach hereof.
Survival of Terms. Unless otherwise stated, all of ESO's and
Customer's respective obligations, representations and warranties
under this Agreement which are not, by the expressed terms of this
Agreement, fully to be performed while this Agreement is in effect shall
survive the termination of this Agreement.
17.11. Ambiguous Terms. This Agreement will not be construed against any
party by reason of its preparation.
17.12. Governing Law. This Agreement, any claim dispute or controversy
hereunder (a "DAspute") will be governed by (i) the laws of the State of
Texas, or (ii) if Customer is a city, county, municipality or other
governmental entity, the law of state where Customer is located, in
each case foregoing without regard to its conflicts of law. The UN
Convention for the International Sale of Goods and the Uniform
Computer Information Transactions Act will not apply. In any Dispute,
each party will bear its own attorneys' fees and costs and expressly
waives any statutory right to attorneys' fees.
17.13. New Versions & Sunset. If ESO releases a New Version of Licensed
Software (i.e., not SaaS), Customer may elect to receive such New
Version, subject to a relicense fee of 75% of the standard price for
such new version. All New Versions provided under this Agreement will
constitute Licensed Software and be subject to the terms and
conditions of this Agreement ESO may discontinue Support Services
for Licensed Software upon 12 months' notice to Customer.
purposes only, and that any terms, provisions, and conditions 17.14. No Class Actions. NEITHER PARTY SHALL BE ENTITLED TO JOIN OR
contained therein shall in no way modify this Agreement. CONSOLIDATE CLAIMS BY OR AGAINST OTHER ESO CUSTOMERS, OR
17.4. Severabdity. To the extent permitted by applicable law, the parties
hereby waive any provision of law that would render any clause of this
Agreement invalid or otherwise unenforceable in any respect If a
provision of this Agreement is held to be invalid or otherwise
unenforceable, such provision will be interpreted to fulfill its intended
purpose to the maximum extent permitted by applicable law, and the
remaining provisions of this Agreement will continue in full force and
effect.
17.5. Subcontracting. Except for training and implementation services
related to the Software, neither party may subcontract or delegate its
obligations to each other hereunder, nor may it contract with third
parties to perform any of its obligations hereunder except as
contemplated in this Agreement, without the other party's prior written
consent.
17.6. Modifications and Amendments. This Agreement may not be amended
except through a written agreement signed by authorized
representatives of each party, provided that the Customer agrees that
ESO may rely on informal writings (including emails) of Customer's
authorized representatives to (i) terminate Software products and
services and (ii) approve or ratify rate or tier increases for Software
products and services then in use by Customer.
17.7. Force Majeure. No delay, failure, or default will constitute a breach of
this Agreement to the extent caused by acts of war, terrorism,
hurricanes, earthquakes, other acts of God or of nature, strikes or
other labor disputes, riots or other acts of civil disorder, embargoes, or
other causes beyond the performing party's reasonable control
collectively, "Force Majeure"]. In such event, however, the delayed
party must promptly provide the other party notice of the Force
Majeure. The delayed party's time for performance will be excused for
the duration of the Force Majeure, but if the event last longer than 30
PURSUE ANY CLAIM AS A REPRESENTATIVE OR CLASS ACTION OR IN A
PRIVATE ATTORNEY GENERAL CAPACITY.
17.15. Dispute Resolution. Customer and ESO will attemptto resolve any
Dispute through negotiation or by utilizing a mediator agreed to by the
parties, rather than through litigation. Negotiations and mediations will
be treated as confidential. If the parties are unable to reach a
resolution within 30 days of notice of the Dispute to the other party,
the parties may pursue all other courses of action available at law or in
equity.
17.16. Technology Export. Customer shall not: (a) permit any third party to
access or use the Software in violation of any U.S. law or regulation; or
(b) export any software provided by ESO or otherwise remove it from
the United States except in compliance with all applicable U.S. laws
and regulations. Without limiting the generality of the foregoing,
Customer shall not permit any third party to access or use the
Software in, or export such software to, a country subject to a United
States embargo (as of the Effective Date - Cuba, Iran, North Korea,
Sudan, and Syria).
17.17. Order of Precedence. In the event of any conflict between this
Agreement, Addenda or other attachments incorporated herein, the
following order of precedence will govern: (1) the General Terms and
Conditions; (2) any Business Associate Agreement; (3) the applicable
Addendum, with most recent Addendum taking precedence over
earlier ones; and (4) any ESO policy posted online, including without
limitation its privacy policy. No amendments incorporated into this
Agreement after execution of the General Terms and Conditions will
amend such General Terms and Conditions unless it specifically states
its intent to do so and cites the section or sections amended.
17.18. Counterparts. This Agreement may be executed in one or more
counterparts. Each counterpart will be an original, and all such
counterparts will constitute a single instrument.
17.19. Signatures. Electronic signatures on this Agreement or on any
Addendum (or copies of signatures sent via electronic means) are the
equivalent of handwritten signatures.
7O�
IN WITNESS WHEREOF, the parties have executed this Agreement as of the Effective Date.
ES Sol ns, Inc.
By:
(s/gneture)
Name: Robert Munden
(vnereeme)
Title: Chief Legal & Compliance Officer
(Pfkt 00)
Customer
(s/gnetum)
Name: Tray Payne
(Print creme)
Title: Mayor
(Oft We)
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The SaaS subscription term shall begin 15 calendar days after the Effective Date (existing Renewal Date ("SaaS Subscription Start Date"). Customer shall
be deemed to have accepted the SaaS on the SaaS Subscription Start Date. The parties will make reasonable efforts to ensure that Customer is able to
use the SaaS as contemplated as quickly as possible, but in no event will the SaaS Subscription Start Date be modified for implementation delays.
The following SaaS may be ordered under this Exhibit:
2.1. ESO Electronic Health Record ("EHR") is a SaaS software application for prehospital patient documentation f.h',[± ww�:.cso. C^ `soliwarei A7r).
2.2. ESO Personnel Management ("PM") is a SaaS software application for tracking personnel records, training courses and education history
(htto://www.eso.com/software/r)ersonnel-manag2me ).
2.3. ESO Fire is a SaaS software application for NFIRS reporting (htto://www.eso.com/software/fire).
The following Third -Party Data and/or Software may be ordered under this Exhibit: 2018 International Fire Code, 2015 International Fire Code, 2012
International Fire Code, Education (see section 3.5).
Third -Party Payer is responsible for the following products and Fees:
N/A
Customer hereby agrees to timely pay for the following products according to the schedule below:
FIRE RMS Bundle
RMS Bundle - ESO Fire Incidents
RMS Bundle - ESO InSpeCUOns
RMS Bundle - ESO Properties
RMS Bundle - Personnel Management
RMS Bundle - ESO Hydrants
RMS Bundle - ESO Activities
$49.769.00 $7 132 05
ESO EHR
35000 Incidents
$50.990.00
r (SO.00 )
EHR Training Site
35000 Incidents
$3,595.00
(SO.00 )
EHR CAD Integration
35000 Incidents
$3,995.00
($3-995.00 )
EHR Cardiac Monitor Integration
35000 Incidents
$1,895.00
(S0.00 )
EHR - EMS XML Export
35000 Incidents
$1,895.00
(SO-00 )
EHR Training Travel Costs
3 Travel Cost
$1,800.00
(SO-00 )
EHR Training
3 Days
$3.585.00
1 $3,585.00 )
$42.636.95 Recurring
$50,990.00
Recurring
$3.595.00
Recurring
$0.00
Recurring
$1,895.00
Recurring
$1.895.00
Recurring
$1.800.00
One-time
$0.00
One-time
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Telestatt Integration
35000 Incidents
$2.595.00
150.00)
$2,595.00
Recurring
Fire Incidents CAD Integration
35000Incidents
$3,995.00
r $0.00
$3.995.00
Recurring
Fire - Training
3 Days
$3,585.00
1 $3.585.00
$0.00
One-time
Propertles/Inspections Data Import
20 Stations
$4.700.00
; $4.700,00
$0.00
OneVrne
Fire Incidents NFIRS Data Import
35000Incidents
$9,995.00
1 $9.995.00
$0.00
One-time
IFC 2018 - National Codeset
20 Stations
$2,300.00
r SO 00
$2,300.00
One-time
Fire - Training Travel Costs
3 Trava. Cost
$1.800 00
, SO.00
$1,800.00
One-time
Current EMSi and/or Fire ResCuei Integration 430 Employees $2,580.00 $2,580 00 Recurring
On Demand
On Demand Learning 430 Employees $6.495.00 $6,495 00 Recurring
Personnel Management Data Migration 430 Employees $450.00 SO.00 One-time
Total Recurring Fees $ 127,804.00
Total One -Time Fees $ 28,215.00
Discounts $ (33.442.05)
TOTAL FEES $ 122.576.95
Customeradmow/edges and agrees Mat &must fu//yand accuraft, reportdiscounts on any cost reports or oLberapp//cab/e da/ms
forpaymentsubm/tted under anyfedeia/heaKh care program, /nc/ud/ngbut not //m/ted to Medkore and Med/ce/d, as requ/red by
federa//aw.
All the Fees above will be invoiced by ESO as follows:
6.1. Training and Training Travel Fees shall be invoiced on the Effective Date.
6.2. During the first year, 100F. of the remaining Fees shall be invoiced on the SaaS Subscription Start Date.
6.3. During the second year and any renewal years thereafter, 100% of the recurring Fees shall be due on the anniversary of the SaaS Subscription Start
Date.
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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. "Seventy 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 ie.g., a
User cannot access a core component of the Software).
1.1. "Severity 3 Error" means any other error that does not prevent a User from accessing a significant feature of the Software �.e.g., User is experiencing
latency in reports).
1.2. "Severity 4 Error" means any error related to Documentation or a Customer Enhancement request.
1.3. "Status Update" means if the initial Workaround or Fix cannot resolve the Error, notification of the Customer regarding the progress of the
Workaround or Fix.
1.4. "Online Support" means information available through ESO's website (www. tsg ;pm), 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 F Error Correctioni s); Enhancements, Updates and Upgrades that ESO, in its discretion, makes
generally available to its customers without additional charge; and (c) E-mail Support, telephone support, and Online Support. ESO may use multiple
forms of communication for purposes of submitting periodic status reports to Customer, including but not limited to, messages in the Software,
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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 for in
connection with) implementation. ESO will provide responses to any subsequent Tech Assessments provided that Customer compensates ESO at its
then -current and standard consulting rates for all work performed In connection with such Tech Assessments.
3. ERROR PRIORITY LEVELS. Customer will report all Errors to ESO via e-mail (sucnort@esc.ccm] 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 J. Error. ESO shall (i) commence Error Correction promptly; ;u) 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; (il) provide an Initial Response within eight hours; (iii) initiate Management
Escalation within 48 hours if unresolved; and f ivy 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; (6) 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: f 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 (vip any other causes beyond the ESO's reasonable
control.
5.2. ESO shall have no liability for any changes in Customer's hardware or software systems that may be necessary to use the Software due to a
Workaround or Fix.
5.3. ESO is not required to perform any Error Correction unless ESO can replicate such Error on its own software and hardware or through remote access
to Customer's software and hardware.
5.4. Customer is solely responsible for its selection of hardware, and ESO shall not be responsible the performance of such hardware even if ESO makes
recommendations regarding the same.
6. MISCELLANEOUS. The parties acknowledge that from time -to -time ESO may update its support processes specifically addressed in this Exhibit and may do
so by posting such updates to ESO's website or otherwise notifying Customer of such updates. Customer will accept updates to ESO's support procedures
and any other terms in this Exhibit; provided however, that they do not materially decrease the level of Support Services that Customer will receive from
ESO. THESE TERMS AND CONDITIONS DO NOT CONSTITUTE A PRODUCT WARRANTY. THIS EXHIBIT IS AN ADDITIONAL PART OF THE AGREEMENT AND DOES
NOT CHANGE OR SUPERSEDE ANY TERM OF THE AGREEMENT EXCEPT TO THE EXTENT UNAMBIGUOUSLY CONTRARY THERETO.
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Customer and ESO Solutions, Inc. ("Business Associate") agree that this HIPAA Business Associate Addendum is entered into for the benefit of Customer,
which is a covered entity under the Privacy Standards ("Covered Entity").
Pursuant to the Master Subscription and License Agreement (the "Agreement") into which this HIPAA Business Associate Addendum (this "Addendum") has
been incorporated, Business Associate may perform functions or activities involving the use and/or disclosure of PHI on behalf of the Covered Entity, and
therefore, Business Associate may function as a business associate. Business Associate, therefore, agrees to the following terms and conditions.
1. Scope. This Addendum applies to and is hereby automatically incorporated into all present and future agreements and relationships, whether written, oral
or implied, between Covered Entity and Business Associate, pursuant to which PHI is created, maintained, received or transmitted by Business Associate
from or on behalf of Covered Entity in any form or medium whatsoever.
2. Definitions. For purposes of this Addendum, the terms used herein, unless otherwise defined, shall have the same meanings as used in the Health
Insurance Portability and Accountability Act of 1996 ("HIPAW), 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. Reauired Safeguards to Protect PHI. Business Associate shall use appropriate safeguards, and comply with Subpart C of 45 C.F.R. Part 164 ("Security Rule")
with respect to electronic PHI, to prevent the use or disclosure of PHI other than pursuant to the terms and conditions of this Addendum.
7. Reoorting to Covered Entity. Business Associate shall report to the affected Covered Entity without unreasonable delay: (a) any use or disclosure of PHI not
provided for by the Agreement of which it becomes aware; (b) any breach of unsecured PHI in accordance with 45 C.F.R. Subpart D of 45 C.F.R. 164
("Breach Notification Rule"); and (c) any security incident of which it becomes aware. With regard to Security Incidents caused by or occurring to Business
Associate, Business Associate shall cooperate with the Covered Entity's investigation, analysis, notification and mitigation activities, and except for Security
Incidents caused by Covered Entity, shall be responsible for reasonable costs incurred by the Covered Entity for those activities. Notwithstanding the
foregoing, Covered Entity acknowledges and shall be deemed to have received advanced notice from Business Associate that there are routine occurrences
of: (i) unsuccessful attempts to penetrate computer networks or services maintained by Business Associate; and (ii) immaterial incidents such as "pinging"
or "denial of services" attacks.
8. Mitigation of Harmful Effects. Business Associate agrees to mitigate, to the extent practicable, any harmful effect of a use or disclosure of PHI by Business
Associate in violation of the requirements of the Agreement, including, but not limited to, compliance with any state law or contractual data breach
requirements.
9. Agreements by Third Parties. Business Associate shall enter into an agreement with any subcontractor of Business Associate that creates, receives,
maintains or transmits PHI on behalf of Business Associate. Pursuant to such agreement, the subcontractor shall agree to be bound by the same or greater
restrictions, conditions, and requirements that apply to Business Associate under this Addendum with respect to such PHI.
10. Access to PHI. Within five business days of a request by a Covered Entity for access to PHI about an individual contained in a Designated Record Set,
Business Associate shall make available to the Covered Entity such PHI for so long as such information is maintained by Business Associate in the
Designated Record Set, as required by 45 C.F.R.164.524. In the event any individual delivers directly to Business Associate a request for access to PHI,
Business Associate shall within five (5) business days forward such request to the Covered Entity.
11. Amendment of PHI. Within five business days of receipt of a request from a Covered Entity for the amendment of an individual's PHI or a record regarding an
individual contained in a Designated Record Set (for so long as the PHI is maintained in the Designated Record Set), Business Associate shall provide such
information to the Covered Entity for amendment and incorporate any such amendments in the PHI as required by 45 C.F.R. 164.526. In the event any
individual delivers directly to Business Associate a request for amendment to PHI, Business Associate shall within five business days forward such request
to the Covered Entity.
12. Documentation of Disclosures. Business Associate agrees to document disclosures of PHI and information related to such disclosures as would be required
for a Covered Entity to respond to a request by an individual for an accounting of disclosures of PHI in accordance with 45 C.F.R. 164.528 and HITECH.
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13. Accounting of Disclosures. Within five business days of notice by a Covered Entity to Business Associate that it has received a request for an accounting of
disclosures of PHI, Business Associate shall make available to a Covered Entity information to permit the Covered Entity to respond to the request for an
accounting of disclosures of PHI, as required by 45 C.F.R. 164.528 and HITECH.
14. Other Obligations. To the extent that Business Associate is to carry out one or more of a Covered Entity's obligations under the Privacy Rule, Business
Associate shall comply with such requirements that apply to the Covered Entity in the performance of such obligations.
15. Judicial and Administrative Proceedings. In the event Business Associate receives a subpoena, court or administrative order or other discovery request or
mandate for release of PHI, the affected Covered Entity shall have the right to control Business Associate's response to such request, provided that, such
control does not have an adverse impact on Business Associate's compliance with existing laws. Business Associate shall notify the Covered Entity of the
request as soon as reasonably practicable, but in any event within seven business days of receipt of such request.
16. Availability of Books and Records. Business Associate hereby agrees to make its internal practices, books, and records available to the Secretary of the
Department of Health and Human Services for purposes of determining compliance with the HIPAA Rules.
17. Breach of Contract by Business Associate. In addition to any other rights a party may have in the Agreement, this Addendum or by operation of law or in
equity, either party may: i) immediately terminate the Agreement if the other party has violated a material term of this Addendum; or ii) at the non -breaching
party's option, permit the breaching party to cure or end any such violation within the time specified by the non -breaching party. The non -breaching party's
option to have cured a breach of this Addendum shall not be construed as a waiver of any other rights the non -breaching party has in the Agreement, this
Addendum or by operation of law or in equity.
18. Effect of Termination of Agreement. Upon the termination of the Agreement or this Addendum for any reason, Business Associate shall return to a Covered
Entity or, at the Covered Entity s direction, destroy all PHI received from the Covered Entity that Business Associate maintains in any form, recorded on any
medium, or stored in any storage system. This provision shall apply to PHI that is in the possession of Business Associate, subcontractors, and agents of
Business Associate. Business Associate shall retain no copies of the PHI. Business Associate shall remain bound by the provisions of this Addendum, even
after termination of the Agreement or Addendum, until such time as all PHI has been returned or otherwise destroyed as provided in this Section. For the
avoidance of doubt, de -identified Customer Data shall not be subject to this provision.
19. jpiunctive 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. Safeguards and Appropriate Use of Protected Health Information. Covered Entity is responsible for implementing appropriate privacy and security
safeguards to protect its PHI in compliance with HIPAA. Without limitation, it is Covered Entity's obligation to:
21.1. Not include PHI in information Covered Entity submits to technical support personnel through a technical support request or to community support
forums. In addition, Business Associate does not act as, or have the obligations of a Business Associate under the HIPAA Rules with respect to
Customer Data once it is sent to or from Covered Entity outside ESO's Software over the public Internet; and
21.2. Implement privacy and security safeguards in the systems, applications, and software Covered Entity controls, configures and connects to ESO's
Software.
22. Third Party Rights. The terms of this Addendum do not grant any rights to any parties other than Business Associate and the Covered Entity.
23. Signatures. The signatures to the Agreement for the document evidencing the parties' adoption thereof) indicate agreement hereto and shall be deemed
signatures hereof, whether manual, electronic or facsimile.
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CERTIFICATE OF INTERESTED PARTIES FORM 1295
toil
Complete Nos. 1- 4 and 6 if there are interested parties.
Complete Nos. 1, 2, 3, 5, and 6 if there are no interested parties.
OFFICE USE ONLY
CERTIFICATION OF FILING
Certificate Number:
2022-963739
Date Piled:
12/12/2022
Date Acknowledged:
1
Name of business entity filing form, and the city, state and country of the business entity's place
of business.
ESO Solutions, Inc.
Austin, TX United States
2
Name of governmental entity or state agency that is a party to the contract for which the form is
being filed.
City of Lubbock
3
Provide the identification number used by the governmental entity or state agency to track or identity the contract, and provide a
description of the services, goods, or other property to be provided under the contract.
17011
Subscription Software Solution for Electronic Health Records and Fire Records
4
Name of Interested Party
City, State, Country (place of business)
Nature of interest
(check applicable)
Controlling
I Intermediary
5
Check only if there is NO Interested Party. Q
6
UNSWORN DECLARATION
My name is Robert Munden and my date of birth is
My address is 11500 Alterra Parkway, Suite 100 Austin Texas 78758 USA
(street) (city) (state) (zip code) (country)
I declare under penalty of perjury that the foregoing is true and correct.
Executed in Travis County, State of Texas , on the 13th day of December 2022
(month) (year)
Signature of authorized agent of contracting business entity
(Declarant)
Forms provided by Texas Ethics Commission www.ethics.state.tx.us Version V3.5.1.3ac88bc0
CERTIFICATE OF INTERESTED PARTIES
FORM 1295
1 of 1
Complete Nos. 1 - 4 and 6 if there are interested parties.
OFFICE USE ONLY
Complete Nos. 1, 2, 3, 5, and 6 if there are no interested parties.
CERTIFICATION OF FILING
Certificate Number:
1
Name of business entity filing form, and the city, state and country of the business entity's place
of business.
2022-963739
ESO Solutions, Inc.
Austin, TX United States
Date Filed:
12/12/2022
2
Name of governmental entity or state agency that is a party to the contract for which the form is
being filed.
City of Lubbock
Date Acknowledged:
04/20/2023
g
Provide the identification number used by the governmental entity or state agency to track or identify the contract, and provide a
description of the services, goods, or other property to be provided under the contract.
17011
Subscription Software Solution for Electronic Health Records and Fire Records
4
Name of Interested Party
City, State, Country (place of business)
Nature of interest
(check applicable)
Controlling
Intermediary
5
Check only if there is NO Interested Party. ❑
X
6
UNSWORN DECLARATION
My name is and my date of birth is
My address is
(street) (city) (state) (zip code) (country)
I declare under penalty of perjury that the foregoing is true and correct.
Executed in County, State of on the day of , 20
(month) (year)
Signature of authorized agent of contracting business entity
(Declarant)
Forms provided by Texas Ethics Commission www.ethics.state.tx.us Version V3.5.1.3ac88bc0