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Agreement A-19-467 with ESi.pdf
Agreement No. 19-467 1 AGREEMENT 2 3 THIS AGREEMENT("Agreement") is made and entered into this 24th day of September, 2019 4 ("Effective Date"), by and between the County of Fresno, a political subdivision of the State of California 5 ("COUNTY"), and ESi Acquisition, Inc., a Delaware corporation,with its principal business location located 6 at 235 Peachtree Street NE,Suite 2300, Atlanta, Georgia 30303 ("CONTRACTOR"). 7 WITNESSETH: 8 WHEREAS, COUNTY previously purchased from CONTRACTOR an electronic crisis management 9 software system that includes the WebEOC Professional, WebEOC Resource Manager, and WebEOC 10 Mapper Professional software applications(the "WebEOC Software Applications")for information and 11 resource tracking, situation analysis, communication, and dissemination of information during Emergency 12 Operations Center(EOC)events; 13 WHEREAS, CONTRACTOR has provided continuous maintenance and support for the WebEOC 14 Software Applications through Agreement No. 12-237, which expired on May 21, 2019; and 15 WHEREAS, COUNTY and CONTRACTOR desire to execute this Agreement for the continued 16 maintenance and support("Support Services")for the WebEOC Software Applications; 17 NOW,THEREFORE, in consideration of the mutual covenants, terms and conditions herein 18 contained,the parties hereto agree as follows: 19 1. DEFINITIONS 20 The following terms used throughout this Agreement shall be defined as follows: 21 Acceptance Criteria: 22 The performance and operating specifications that the System must meet at a minimum, as set 23 out or referred to in this Agreement. 24 11 Acceptance Test: 25 The process of testing a specific function or functions to determine if the operation or operations 26 are as stated in this Agreement. 27 Application Administrator: 28 A designated employee or contractor of COUNTY responsible for managing the COUNTY's use -1- 1 of the Hosted System and the non-production license of the WebEOC Software Application 2 installed on the COUNTY System Hardware. This role includes communicating with 3 CONTRACTOR staff for support, troubleshooting problems, and coordinating maintenance 4 tasks. 5 Change Control Process: 6 Process used by the Information Technology Services Division of COUNTY's Internal Services 7 Department (ISD)to inform staff of new or updated production use systems. 8 COUNTY System: 9 Collectively, the County Hardware and the non-production license to the WebEOC Software 10 Application installed therein by the County. 11 COUNTY System Hardware: 12 The central processing units owned or leased by COUNTY, on which COUNTY is licensed to 13 use the non-production license to the WebEOC Software Applications, any back-up equipment 14 for such central processing units, and any peripheral hardware such as terminals, printers, and 15 Personal Computers, as described in this Agreement. 16 COUNTY System Operation: 17 The general operation of COUNTY's hardware and all software including, but not limited to, 18 COUNTY System restarts, configuration and operation of System peripherals (such as printers, 19 modems, and terminals), installation of new software releases, and other related activities. 20 COUNTY System Software: 21 The operating system and database software installed on the COUNTY System Hardware. 22 Final System Acceptance: 23 When COUNTY determines in writing that all necessary deliverables have been delivered, the 24 data has been converted, the base WebEOC Software Applications have been successfully 25 installed and tested, and the WebEOC Software Applications perform all functions in accordance 26 with their specifications. 27 First Production Use: 28 Date of first use of the Hosted System in a production environment. -2- 1 Hosted System: 2 The System Software and Software Documentation, collectively. Reference to the "Hosted 3 System" shall include any component thereof. All modifications and enhancements to the Hosted 4 System shall be deemed to be part of the Hosted System and shall be subject to all terms and 5 conditions set forth in this Agreement. The Hosted System consists of the WebEOC Software 6 Applications, all CONTRACTOR-provided interfaces (if any), and CONTRACTOR-provided third- 7 party software (if any) required for the System Software to function, all installed in the 8 CONTRACTOR's shared hosted environment, known as the "Juvare Cloud." 9 License: 10 The meaning assigned to the term "License" as defined in Section 2(A) of this Agreement and the 11 rights and obligations it creates under the laws of the United States of America and the State of 12 California including without limitation, copyright and intellectual property law. 13 Monies: 14 The terms "Monies", "Charges", "Price", and "Fees" will be considered to be equivalent. 15 Public Records: 16 Public Records includes any writing containing information relating to the conduct of the public's 17 business that is prepared, owned, used, or retained by any state or local agency, regardless of 18 physical form or characteristics, with the exclusion of records expressly exempted from disclosure 19 by statute. 20 Software Documentation: 21 The documentation relating to the Software, and all manuals, reports, brochures, sample runs, 22 specifications and other materials comprising such documentation provided by CONTRACTOR in 23 connection with the System Software pursuant to this Agreement. 24 Software Updates: 25 The meaning of"Software Updates" is set forth in Section 2(A)(V) of this Agreement. 26 Supplier: 27 The terms "Supplier'", "Vendor", and "ESI Acquisition, Inc." all refer to CONTRACTOR, and are 28 considered to be equivalent throughout this Agreement. -3- 1 System Installation: 2 All software has been delivered, has been physically loaded on a COUNTY computer orthe Hosted 3 System, and COUNTY has successfully executed program sessions. 4 System Software: 5 The WebEOC Software Applications, that certain computer software described in this Agreement 6 provided by CONTRACTOR, and all CONTRACTOR-provided interfaces (if any), coding, tapes, 7 disks, modules and similar materials comprising such software or on which it is stored. 8 User: 9 The terms "User", "Client," "Customer" and "Licensee" all refer to COUNTY and are considered to 10 be equivalent throughout this Agreement. 11 User Profile: 12 A record of User-specific data that define the User's working environment. The record can include 13 display settings, application settings, and network connections. What the User sees on his or her 14 computer screen, as well as what files, applications and directories they have access to. 15 2. OBLIGATIONS OF CONTRACTOR 16 A. SOFTWARE LICENSE 17 I. GRANT OF LICENSE 18 CONTRACTOR grants to COUNTY, and COUNTY accepts, the license to the WebEOC Software 19 Application, as set forth in the End User License Agreement (the "EULK), attached as Attachment 1 to 20 this Agreement and incorporated by this reference. 21 ll. SCOPE OF LICENSE 22 The license granted herein shall consist solely of the non-exclusive, non-transferable right of 23 COUNTY to operate the System Software in support of COUNTY's Department of Public Health, subject 24 to the terms of this Agreement and the Attachment 1 - EULA. 25 III. OWNERSHIP 26 The parties acknowledge and agree that, as between CONTRACTOR and COUNTY,title and full 27 ownership of all rights in and to the System Software, Software Documentation, and all other materials 28 provided to COUNTY by CONTRACTOR under the terms of this Agreement shall remain with -4- 1 CONTRACTOR. COUNTY will take reasonable steps to protect trade secrets of the System Software and 2 System Documentation. CONTRACTOR retains ownership of all copies. COUNTY may not disclose or 3 make available to third parties the System Software or Software Documentation or any portion thereof. 4 CONTRACTOR shall own all right, We and interest in and to all corrections, modifications, enhancements, 5 programs, and work product conceived, created or developed, alone or with COUNTY or others, as a 6 result of or related to the performance of this Agreement, including all proprietary rights therein and based 7 thereon. Except and to the extent expressly provided herein, CONTRACTOR does not grant to COUNTY 8 any right or license, express or implied, in or to the System Software and Software Documentation or any 9 of the foregoing. The parties acknowledge and agree that, as between CONTRACTOR and COUNTY, full 10 ownership of all rights in and to all COUNTY data, whether in electronic or paper form, including, without 11 limitation, printed output from the System, are the exclusive property of COUNTY. 12 IV.POSSESSION, USE, AND UPDATE OF SOFTWARE 13 COUNTY agrees that COUNTY will only use the System Software for its own internal purposes. 14 CONTRACTOR may, at reasonable times, inspect COUNTY's (i) usage of the Hosted System, the 15 WebEOC Software Application(s), and its use of the Software Documentation; and (ii) premises and 16 equipment to verify that all of the terms and conditions of this license are being observed. CONTRACTOR 17 may create, from time to time, updated versions of the System Software and corresponding Software 18 Documentation ("Software Updates") and CONTRACTOR shall make such Software Updates available 19 to COUNTY. CONTRACTOR shall be responsible for installing all Software Updates onto the System 20 Software installed on the Hosted System. COUNTY shall be responsible for installing all Software Updates 21 onto the COUNTY System Hardware. All Software Updates shall be licensed under the terms of this 22 Agreement. COUNTY agrees to follow the prescribed instructions for updating System Software installed 23 on COUNTY System Hardware provided to COUNTY by CONTRACTOR. 24 V. TRANSFER OF SOFTWARE 25 COUNTY shall not rent, lease, license, distribute, sell, transfer, or assign this license, the System 26 Software, orthe Software Documentation, or any of the information contained therein otherthan COUNTY 27 data, to any other person or entity, whether on a permanent or temporary basis, and any attempt to do so 28 will constitute a breach of this Agreement. No right or license is granted under this Agreement for the use -5- 1 or other utilization of the System Software or any of the licensed programs therein, directly or indirectly, 2 for the benefit of any other person or entity, except as provided in this Agreement. 3 VI. POSSESSION AND USE OF SOURCE CODE 4 Source code and other material that results from custom programming by CONTRACTOR 5 released to COUNTY under this Agreement shall be deemed CONTRACTOR-owned software subject to 6 all of the terms and conditions of the license to the WebEOC Software Application set forth in this 7 Agreement. The scope of COUNTY's permitted use of such custom source code under this Agreement 8 shall be limited to maintenance and support of the System Software. For purposes of this Section, the 9 term "maintenance and support" means correction of System Software errors and preparation of System 10 Software modifications and enhancements. If COUNTY creates computer code in the process of 11 enhancing the System Software, that specific new code shall be owned by COUNTY, and may be used 12 by COUNTY's employees, officers, or agents for COUNTY's own internal business operations. However, 13 if COUNTY's enhancement results in the creation of a derivative work from the System Software, the 14 copyright to such derivative work shall be owned by CONTRACTOR, and COUNTY's rights to use such 15 derivative work shall be limited to those granted with respect to the System Software in this Agreement. 16 VII. RESTRICTIONS ON USE 17 COUNTY shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise 18 commercially exploit or make available to any third -party the System Software or the Software 19 Documentation in any way; (ii) modify or make derivative works based upon the System Software or the 20 Software Documentation; (iii) create Internet "links" to the System Software or "frame" or "mirror" any 21 Software Documentation on any other server or wireless or Internet-based device; (iv) send spam or 22 otherwise duplicative or unsolicited messages in violation of applicable law; (v) send or store infringing, 23 obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to 24 children or violative of third -party privacy rights; (vi) send or store material containing software viruses, 25 worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (vii) interfere 26 with or disrupt the integrity or performance of the System Software orthe data contained therein, including, 27 but not limited to, COUNTY Data; (viii) attempt to gain unauthorized access to the System Software or its 28 related systems or networks; and (ix) reverse engineer or access the System Software. -6- 1 VIII. INTELLECTUAL PROPERTY, TRADEMARK, AND COPYRIGHT 2 CONTRACTOR retains ownership of the System Software, any portions or copies thereof, and all 3 rights therein. CONTRACTOR reserves all rights not expressly granted to COUNTY. This Agreement 4 does not grant COUNTY any rights in connection with any trademarks or service marks of 5 CONTRACTOR, its suppliers or licensors. All right, title, interest and copyrights in and to the System 6 Software and the accompanying System Software Documentation and any copies of the System Software 7 are owned by CONTRACTOR, its suppliers or licensors. All title and intellectual property rights in and to 8 the content which may be accessed through use of the System Software are the property of the respective 9 content owner and may be protected by applicable copyright or other intellectual property laws and 10 treaties. This Agreement grants COUNTY no rights to use such content. 11 B. SERVICES TO BE PROVIDED BY CONTRACTOR TO COUNTY 12 I. USER AND ADMINISTRATOR DOCUMENTATION 13 CONTRACTOR shall provide to COUNTY the Software Documentation, which shall consist of 14 electronic media files. The electronic media files must be printable using PC software that can print a PDF 15 file. CONTRACTOR shall provide new Software Documentation corresponding to all new Software 16 Updates. COUNTY may print additional copies of all Software Documentation. All Software 17 Documentation is to be used by COUNTY only for the purposes identified within this Agreement. All rights, 18 title, and intellectual property in the Software Documentation shall remain with CONTRACTOR and shall 19 be considered CONTRACTOR's Confidential Information as defined in the EULA. 20 C. SYSTEM MAINTENANCE AND SUPPORT BY CONTRACTOR 21 System maintenance and support includes Software Updates as they are released by 22 CONTRACTOR, including updates as required as a result of "Federal Regulatory Changes." COUNTY 23 shall identify and communicate to CONTRACTOR the first day of production use. CONTRACTOR shall 24 support day-to-day operation of the System as follows: 25 1. SUPPORT HOURS/SCOPE 26 During the Term of this Agreement, CONTRACTOR shall provide unlimited Support Services, as 27 defined and set forth in the EULA incorporated herein. The object of Support Services will be to answer 28 specific questions related to the System Software and the application thereof. Support provided pursuant -7- 1 to this Agreement does not include training, operation of or technical support for the COUNTY System, 2 including, without limitation, COUNTY Hardware, the O/S in the County System, or other third-party 3 software the County may have installed in the County System, or solving other hardware/software 4 problems unrelated to the System Software. 5 II. SUPPORT RESPONSE 6 During the Term of this Agreement, CONTRACTOR shall (a) correct any error or malfunctions in the 7 System as supplied by CONTRACTOR that prevents it from operating in accordance with the 8 specifications set forth in this Agreement, or (b) provide a commercially reasonable alternative that will 9 conform to the specifications set forth in this Agreement. 10 If analysis by CONTRACTOR indicates a reported problem is caused by a reproducible error or 11 malfunction in the then-current release of the System Software as supplied and maintained by 12 CONTRACTOR that significantly impacts effective use of the System by COUNTY, CONTRACTOR will, 13 if the System is inoperable, as reported by COUNTY, provide continuous effort to correct the error or to 14 resolve the problem by providing a circumvention. 15 In such cases, CONTRACTOR shall provide COUNTY with corrective information, such as corrective 16 documentation and/or program code. CONTRACTOR will respond to COUNTY's Notification of an Error, 17 problem, defect, or issue in the WebEOC Software Application, as set forth in Attachment 2 — Response 18 Time Objectives attached to this Agreement; Attachment 2 is incorporated herein and made part of this 19 Agreement by this reference. 20 III. Omitted. 21 IV. ERROR CORRECTION PROCESS 22 If, during the Term of this Agreement, COUNTY determines that an Error(s), as defined in 23 Attachment 2 exist, COUNTY will first follow the error procedures, if any, specified in the Software 24 Documentation. If following the error procedures does not correct the Error, COUNTY shall immediately 25 provide a Notification (as defined in Attachment 2)to CONTRACTOR, setting forth the defects noted with 26 specificity. Upon CONTRACTOR's receipt of such Notification, CONTRACTOR shall respond as set forth 27 in Attachment 2. 28 V. TECHNICAL INFORMATION I CONTRACTOR shall provide technical information to COUNTY from time to time. Such 2 information may cover areas such as the System usage, third-party software, and other matters 3 considered relevant to COUNTY by CONTRACTOR. Technical information shall be provided at the 4 discretion of CONTRACTOR, but will not be unreasonably withheld. 5 D. ADDITIONAL SYSTEM MAINTENANCE SERVICES BY CONTRACTOR 6 CONTRACTOR may provide additional maintenance services ("Additional Maintenance and 7 Support Services' or "Additional Maintenance Services") at an additional charge. Charges will be as 8 identified in Section 6(E); or, if not included in this Agreement and/or Exhibit F of Attachment 1, the 9 charges will be at CONTRACTOR's then-standard prices in effect at the time the goods or services are 10 provided. Any Additional Maintenance and Support Services requested by COUNTY and determined by 11 CONTRACTOR to be billable by CONTRACTOR must be identified as a chargeable service prior to the 12 service being performed and must be approved in writing in advance by COUNTY's Contract 13 Administrator. Additional Maintenance Services include, but are not limited to, the following: 14 1. ADDITIONAL TRAINING 15 Additional training at a COUNTY facility shall be available upon request by COUNTY at an 16 additional charge under the terms of this Agreement. Requests for additional training will be reviewed by 17 CONTRACTOR, and must be requested in writing in advance by the COUNTY's Contract Administrator. 18 Charges and terms for additional training will be at rates identified in this Agreement. 19 II. SYSTEM CORRECTIONS 20 System Corrections include any corrective actions accomplished by CONTRACTOR that are 21 necessary due to COUNTY errors or unauthorized source code or data access by COUNTY. Unauthorized 22 access to the data is defined as any COUNTY editing of data through other than normal system usage, 23 as defined in System Documentation. Unauthorized access to source code is defined as any COUNTY 24 access whatsoever to System source code. Services provided by CONTRACTOR are not billable to 25 COUNTY when they result from errors caused by the System or instruction provided by CONTRACTOR. 26 III. CUSTOMER SITE VISITS 27 Site visits to COUNTY sites, as may be requested in writing by COUNTY, and that are within the 28 scope of the project services, are available for reasons such as, but not limited to, (1) additional System -9- 1 training on hardware or software usage; (2) resolution of System difficulties not resulting from actions by, 2 or otherwise the responsibility of CONTRACTOR (as determined by mutual agreement between 3 CONTRACTOR and COUNTY); (3) installation of New Products and Software Updates; and (4) 4 assistance in equipment maintenance, movement or diagnosis. Site visits outside of the scope of project 5 services will be reviewed by CONTRACTOR, and must be requested in writing in advance by the 6 COUNTY's Contract Administrator. Charges will be at rates identified in this Agreement. 7 IV. CUSTOM PROGRAMMING 8 Requests for supplemental programming or customization of system features not covered under 9 this Agreement are available to COUNTY. Such requests will be reviewed by CONTRACTOR, and must 10 be requested in writing in advance by the COUNTY's Contract Administrator. Charges will be at rates 11 identified in this Agreement. 12 E. CONTRACTOR PROJECT COORDINATOR 13 Upon execution of this Agreement, CONTRACTOR shall appoint a Project Coordinator who will 14 act as the primary contact person to interface with COUNTY for implementation, maintenance and support 15 of the System. 16 F. SYSTEM UPDATES AND NEW PRODUCTS 17 I. SYSTEM UPDATES 18 From time to time CONTRACTOR will develop and provide Software Updates to COUNTY for the 19 COUNTY'S licensed WebEOC Software Application. Software Updates shall be subject to the terms and 20 conditions of this Agreement, shall be deemed licensed System Software hereunder, and will be made 21 available to COUNTY at no additional charge to COUNTY during the Term of this Agreement, provided 22 that the COUNTY is not in breach of its obligations under this Agreement, including, without limitation, its 23 payment obligations. Software Updates will be made available to COUNTY at the discretion of 24 CONTRACTOR, but will not be unreasonably withheld. 25 Il. NEW PRODUCTS 26 CONTRACTOR mayfrom time to time release new software with capabilities substantially different 27 from or greater than the System Software ("New Products"), which therefore do not constitute Software 28 Updates. These New Products will be made available to COUNTY at a cost not to exceed -10- I CONTRACTOR's then standard rates for similarly situated customers. 2 G. OPERATING SYSTEM UPDATES 3 The System must run on an operating system ("O/S") that is consistently and currently supported 4 by the operating system vendor. Systems under maintenance are expected to always be current in 5 regards to the required O/S. No outdated or unsupported O/S will be implemented on the production 6 network. COUNTY will apply patches to both the client O/S and security subsystems on COUNTY PCs 7 as releases are available from O/S vendors. 8 In order to support a secure environment, the System must run on the latest supported security 9 release of any required third-party software, such as JAVA, Flash, etc. COUNTY will actively run anti- 10 virus management on all COUNTY System Hardware, including, without limitation, its PCs. The System 11 is expected to perform adequately while anti-virus management is active. 12 H. ANTI-VIRUS MANAGEMENT 13 COUNTY shall actively run anti-virus management, where appropriate, on all COUNTY System 14 Hardware application servers and PCs. The non-production license to the WebEOC Software Application 15 on the COUNTY System Hardware is expected to perform adequately while anti-virus management is 16 active. 17 1. ADHERE TO CHANGE CONTROL PROCESS 18 Excluding emergency modifications, changes or updates/upgrades to the Hosted System, 19 CONTRACTOR must endeavor to adhere to COUNTY's Change Control Process, which COUNTY shall 20 be provided to CONTRACTOR in writing. COUNTY employs a procedure to implement updates, 21 upgrades, and version releases to a system that is in production use. This forum allows ISD to inform staff 22 (Help Desk, Network, Server, Database, Security, and Analysts) of upcoming changes to a production 23 system. CONTRACTOR must endeavor to inform ISD a minimum of two (2) weeks prior to any planned, 24 non-emergency changes to the Hosted System so that the Change Control Process may be followed. 25 J. OTHER 26 Unless otherwise specified, for third-party software, CONTRACTOR shall provide standard 27 documentation in electronic form (via the Internet or File Transfer Protocol (FTP)). The Hosted System 28 being provided by CONTRACTOR runs in a Local Area Network and Web environment. As such, the -11- 1 performance of the Hosted System is directly related to, among other things: available network bandwidth, 2 and the performance of other applications. For this reason, CONTRACTOR makes no guarantees as to 3 the Hosted System response time. 4 3. OBLIGATIONS OF COUNTY 5 A. COUNTY CONTRACT ADMINISTRATOR 6 COUNTY appoints its Director of Internal Services/Chief Information Officer(ISD Director/CIO) or 7 his or her designee, as COUNTY's Contract Administrator("Contract Administrator"), with full authority to 8 deal with CONTRACTOR in all matters concerning this Agreement. 9 B. CONTRACTOR RESPONSE COMMITMENT 10 COUNTY shall designate one or more Application Administrator(s), each of whom shall be an 11 employee or contractor of COUNTY. Only a designated Application Administrator that has completed the 12 required training as set forth in Attachment 1 hereto may request Support Services. It is the responsibility 13 of COUNTY to instruct Users to route Support Services requests through the Application Administrator. 14 CONTRACTOR shall not be obligated to provide Support Services with respect to any request made by 15 a person who is not an Application Administrator. 16 C. SAFEGUARDING SYSTEM SOFTWARE 17 COUNTY shall follow its present practices to safeguard System Software delivered to COUNTY 18 by CONTRACTOR; such present practices shall be no less than a reasonable standard of care. COUNTY 19 shall provide a copy of COUNTY'S "Information Technology (IT) Standards and Preferences" to 20 CONTRACTOR, upon request. 21 D. BACKUP AND RECOVERY MANAGEMENT 22 I. COUNTY utilizes a backup and recovery system written and maintained by Commvault Systems. 23 This application requires a backup agent to run on the COUNTY System Hardware server. 24 Notwithstanding the foregoing, in no event shall such backup application/agent run on or expected to be 25 on the Hosted System. 26 II. In order for the backup and recovery system to run on COUNTY supported servers, the non- 27 production license to the WebEOC Software Application must not require the Users to have administrative 28 rights on the servers. -12- 1 III. COUNTY, at all times, during and after the performance of the installation of the System 2 Software on the COUNTY System Hardware, is responsible for maintaining adequate data backups to 3 protect against loss of data. 4 E. ACCEPTANCE TESTING 5 Excluding the non-production license to the WebEOC Software Application, which shall not be 6 subject to Acceptance Testing, the COUNTY shall approve Final System Acceptance when the Hosted 7 System has been successfully tested and performs in material compliance with all specifications set forth 8 in this Agreement and the Software Documentation, and COUNTY has received all deliverables identified 9 in this Agreement as required for acceptance, as listed on Attachment 1, Exhibit E "Statement of Work", 10 Section 6 — "Deliverables". 11 F. ACCEPTING TESTING PROCESS 12 Following System Installation, COUNTY shall test the Hosted System. 13 G. FACILITIES AND PREPARATION 14 COUNTY shall, at its own expense, provide all necessary labor and materials for site preparation, 15 electrical services, and cabling required for the County System Hardware. COUNTY shall receive the non- 16 production license to the System Software and will follow instructions provided by CONTRACTOR to load 17 it on COUNTY's System Hardware to prepare the System for processing. 18 H. SYSTEM HARDWARE AND SYSTEM SOFTWARE 19 COUNTY shall, at its own expense, provide, properly maintain, and update on an ongoing basis, 20 all necessary COUNTY System Software and County System Hardware required to operate the non- 21 production license to the System Software. COUNTY System Software and County System Hardware 22 shall meet or exceed CONTRACTOR's recommendations. 23 As part of COUNTY's responsibility for computer infrastructure, COUNTY is responsible for 24 ensuring that data on the County infrastructure, including, without limitation, COUNTY System Hardware, 25 is secure and protected at all times. CONTRACTOR is not responsible for and cannot be held liable for 26 inadvertent data disclosure or theft from COUNTY facilities or County infrastructure, including, without 27 limitation, COUNTY System Hardware. 28 I. COUNTY PROJECT MANAGER -13- 1 Upon execution of this Agreement, COUNTY's Contract Administrator shall designate one 2 individual from ISD who will function as Project Manager with responsibility for day-to-day management 3 of the project for implementation of the System. The Project Manager and COUNTY personnel shall have 4 the necessary and appropriate training and experience to implement the terms of this Agreement. 5 COUNTY acknowledges CONTRACTOR'S reliance on same. 6 J. OTHER COUNTY OBLIGATIONS 7 COUNTY's ISD staff shall provide technical assistance to COUNTY personnel during the 8 performance of the installation of the non-production license to the System Software. 9 4. TERM 10 The Term of this Agreement, including the term of the license to the WebEOC Application Software 11 in the Hosted System, shall be as follows: 12 (i)The "Initial Term" of this Agreement shall retroactively commence on May 22,2019 and continue 13 through June 30, 2020. The Initial Term shall then continue annually from July 151 through June 30"' up 14 through June 30, 2022; and 15 (ii) Following expiration of the Initial Term, the Term may be extended for two (2) additional 16 consecutive twelve(12)month periods(each a"Renewal Period") upon written approval of both parties. The 17 Director of Internal Services/Chief Information Office (CIO) or his or her designee is authorized to execute 18 such written approval to renew for a Renewal Period on behalf of COUNTY, based on CONTRACTOR'S 19 satisfactory performance. 20 Collectively, the "Term" shall include the Initial Term and each Renewal Period, if any. 21 3. TERMINATION 22 A. Non-Allocation of Funds - The terms of this Agreement, and the services to be 23 provided hereunder,are contingent on the approval of funds by the appropriating govemment agency.Should 24 sufficient funds not be allocated, the services provided may be modified upon mutual agreement of the 25 parties, or this Agreement terminated without penalty at any time by the COUNTY giving the CONTRACTOR 26 thirty(30)days advance written notice. Upon such termination of the Agreement by COUNTY, COUNTY shall 27 remit to CONTRACTOR all amounts due and payable by COUNTY to CONTRACTOR prior to the effective 28 date of such termination, including, without limitation, for all professional services performed by -14- 1 CONTRACTOR and Travel Expenses incurred by CONTRACTOR. 2 B. Breach of Contract - The COUNTY may immediately suspend or terminate this 3 Agreement in whole or in part, upon providing the CONTRACTOR with no less than thirty (30) days to cure 4 such action, where in the determination of the COUNTY there is: 5 1) An illegal use of funds; 6 2) A failure by the CONTRACTOR to comply with any material term of this 7 Agreement; 8 3) A substantially incorrect or incomplete report submitted to the COUNTY; or 9 4) improperly performed service. 10 In no event shall any payment by the COUNTY constitute a waiver by the COUNTY of any breach of 11 this Agreement or any default which may then exist on the part of the CONTRACTOR. Neither shall such 12 payment impair or prejudice any remedy available to the COUNTY with respect to the breach or default. 13 Unless funds paid by the COUNTY to the CONTRACTOR are for the services and software for which "Final 14 System Acceptance" has been provided pursuant to the terms of this Agreement or the funds are for Support 15 Services hereunder, the COUNTY shall have the right to demand of the CONTRACTOR the repayment to 16 the COUNTY of any funds disbursed to the CONTRACTOR under this Agreement, in the event that the 17 CONTRACTOR is in breach of the terms of this Agreement. The CONTRACTOR shall promptly refund any 18 such funds upon demand. 19 C. Without Cause Under circumstances other than those set forth above, this 20 Agreement may be terminated by COUNTY upon the giving of thirty (30) days advance written notice of an 21 intention to terminate to CONTRACTOR. In the event of termination of this Agreement by 4he COUNTY 22 pursuant to this provision, (i) during the Initial Term, there shall be no refunds (including, without limitation, 23 any prorated refunds for the period of time following the effective date of termination) for any amounts paid 24 by COUNTY to CONTRACTOR or any amounts invoiced by CONTRACTOR to COUNTY, and the COUNTY 25 shall pay to the CONTRACTOR all remaining amounts due and payable for services already received by 26 COUNTY for the remainder of the Initial Term; and (ii) during an Option Year or Renewal Period, there shall 27 be no refunds (including, without limitation, any prorated refunds for the period of time following the effective 28 date of termination) for any amounts paid by COUNTY to CONTRACTOR or any amounts invoiced by -15- I CONTRACTOR to COUNTY. 2 4. COMPENSATION/INVOICING: COUNTY agrees to pay CONTRACTOR and 3 CONTRACTOR agrees to receive compensation as follows: 4 A. ONE-TIME FEES FOR MIGRATION TO VENDOR HOSTED ENVIRONMENT 5 ITEM DESCRIPTION COST 6 1. Solutions Services Project— Migrate current $8,750.00 7 Client Hosted WebEOC instance to Juvare Hosting 8 Total One Time Fees for Migration to Vendor $8,750.00 9 Hosted Environment(plus applicable taxes) 10 11 B. PAYMENT SCHEDULE FOR ONE-TIME FEES 12 1. The "Total One Time Fees for Migration to Vendor Hosted Environment" set forth above in 13 the amount of$8,750.00 USD (plus applicable taxes) shall be due and payable by COUNTY to 14 CONTRACTOR as follows: 15 (i) 50% or$4,375.00 USD (plus applicable taxes) shall be invoiced by CONTRACTOR to COUNTY 16 upon CONTRACTOR's receipt of this Agreement(executed by COUNTY); and 17 (ii) 50% or $4,375.00 USD (plus applicable taxes) shall be invoiced by CONTRACTOR to COUNTY 18 on the sooner to occur of(a) upon CONTRACTOR's receipt of notice of COUNTY's Final Acceptance, or 19 (b) COUNTY's use of the Hosted System in a productive environment for longer than thirty (30) days. 20 C. NOT TO EXCEED AMOUNT FOR ONE-TIME FEES 21 It is understood that and agreed that the dollar figures listed herein for one-time fees do not include 22 applicable taxes, which may be subject to change during the period for scheduled payments. In no event 23 shall compensation paid for services performed under this Agreement exceed $8,750.00 for such "Total 24 One-Time Fees for Migration to Vendor Hosted Environment." 25 D. ANNUAL FEES FOR WEBEOC SOFTWARE APPLICATION AND SUPPORT SERVICES 26 LINE ITEM YEAR 1 COST* 27 1. ASP Hosting --WebEOC —Annual (up to 250 users) $8,635.00 28 -16- 1 2. ASP Hosting—WebEOC Maps Add-On —Annual $4,345.00 2 3. ASP Hosting —WebEOC RRDM—Annual $1,320.00 3 4. WebEOC® Maps Add-On Support Services $4,290.00 4 5. Resource Request and Deployment Module Care $3,600.00 5 Plan (UP) 6 6. WebEOC Software Support Services $10,900.00 7 Total Annual Fees hor the Hosted WebEOC $33,090.00 8 Software Application and Support Services (plus 9 applicable waxes) 10 *ESi shall be, in its sole discretion, entitled to increase the fees set forth in this Agreement upon thirty (30) 11 days prior written notice to Client, provided that ESi shall not increase such fees more than once in any one 12 (1) year period, and provided further that (i) the fees applicable to the year 2 of the Initial Term shall not 13 exceed $37,378.70 USD, and (0) each increase for years 3, 4 and 5 during the Initial Term of the EULA will 14 not exceed the previous fees by the lesser of three percent (3%) per year or the cumulative percentage 15 increase in the Consumer Price Index, All Urban Consumers for the U.S., during the previous year. The 16 foregoing limitations in (1) and (ii) may not apply to any purchases agreed to by Client in a subsequent 17 amendment to this Agreement(including, without limitation,for adding new WebEOC Software applications). 18 E. PAYMENT SCHEDULE FOR ANNUAL FEES 19 For purposes of the "Annual Fees for the Hosted WebEOC Software Application and Support 20 Services," CONTRACTOR shall invoice, and COUNTY shall pay, the amounts set forth below according to 21 below payment schedule: 22 (i) The "Annual Fees for the Hosted WebEOC Software Application and Support Services" set forth 23 above in the amount of $33,090.00 USD (plus applicable taxes) shall be invoiced by CONTRACTOR to 24 COUNTY upon CONTRACTOR's receipt of this Agreement(executed by COUNTY); and 25 (ii) Subsequent annual charges, including any increase in such charges,fees and costs,for each annual 26 period during the Initial Term and each Renewal Period, if any, shall be invoiced by CONTRACTOR to 27 COUNTY so that such amounts are due and payable prior to the commencement of each annual period. 28 F. ADDITIONAL SERVICES FEES -17- 1 Additional Services Fees, as listed in Exhibit F —"Consulting Services Rates" of Attachment 1, shall 2 only be paid to CONTRACTOR if any such services set forth herein are performed by CONTRACTOR upon 3 COUNTY's written request. In no event shall Additional Services Fees exceed $20,000.00 USD per year for 4 each one-year period of this Agreement. 5 G. INVOICING AND PAYMENT TERMS 6 CONTRACTOR shall submit invoices referencing the contract number, either electronically or via 7 mail in triplicate to the County of Fresno, Internal Services Department, ATTN: Business Office, 333 W. 8 Pontiac Way, Clovis, CA 93612 (isd bus inessoffice ,,ffresnocount�a.,,ov). 9 In no event shall compensation paid for services performed under this Agreement exceed $56,158.34 10 for the first Renewal Period ("Year 4")and $57,243.09 for the second, final Renewal Period ("Year 5"). In no 11 event shall compensation paid for services performed under this Agreement exceed $298,218.54 during the 12 entire potential five-year Term of this Agreement, including the Initial Term and both potential one-year 13 Renewal Periods. Unless agreed to in writing by the parties, it is understood that all expenses incidental to 14 CONTRACTOR'S performance of services under this Agreement shall be borne by CONTRACTOR. 15 COUNTY shall pay CONTRACTOR within forty-five (45) days of receipt of an approved invoice. 16 5. INDEPENDENT CONTRACTOR: In performance of the work, duties and obligations 17 assumed by CONTRACTOR under this Agreement, it is mutually understood and agreed that 18 CONTRACTOR, including any and all of the CONTRACTOR'S officers, agents, and employees will at all 19 times be acting and performing as an independent contractor, and shall act in an independent capacity and 20 not as an officer, agent, servant, employee,joint venturer, partner, or associate of the COUNTY. Furthermore, 21 COUNTY shall have no right to control or supervise or direct the manner or method by which CONTRACTOR 22 shall perform its work and function. However, COUNTY shall retain the right to administer this Agreement so 23 as to verify that CONTRACTOR is performing its obligations in accordance with the terms and conditions 24 thereof. 25 CONTRACTOR and COUNTY shall comply with all applicable provisions of law and the rules and 26 regulations, if any, of governmental authorities having jurisdiction over matters the subject thereof. 27 Because of its status as an independent contractor, CONTRACTOR shall have absolutely no right to 28 employment rights and benefits available to COUNTY employees. CONTRACTOR shall be solely liable and -18- 1 responsible for providing to, or on behalf of, its employees all legally-required employee benefits. In addition, 2 CONTRACTOR shall be solely responsible for all matters relating to payment of CONTRACTOR'S 3 employees, including compliance with Social Security withholding and all other regulations governing such 4 matters. It is acknowledged that during the Term of this Agreement, CONTRACTOR may be providing 5 services to others unrelated to the COUNTY or to this Agreement. 6 6. MODIFICATION: Any matters of this Agreement may be modified from time to time by the 7 written consent of all the parties without, in any way, affecting the remainder. 8 7. NON-ASSIGNMENT: Neither party shall assign this Agreement nor their rights or duties 9 under this Agreement without the prior written consent of the other party; provided, however, COUNTY (1) 10 acknowledges that CONTRACTOR utilizes a hosted/cloud data services providers (a "subcontractor") in 11 CONTRACTOR's provision of the Hosted System and CONTRACTOR utilizes its affiliates in the provision of 12 the services, including, without limitation, Support Services, under this Agreement, and (F) agrees that 13 CONTRACTOR' use of such subcontractor and its affiliates shall not be considered to be in breach of this 14 "Non-Assignment" section or this Agreement. This Agreement shall be binding on each party's successors 15 and permitted assigns. 16 8. HOLD HARMLESS 17 A. CONTRACTOR agrees to indemnify, save, hold harmless, and at COUNTY'S request, 18 defend the COUNTY, its officers, agents, and employees from any and all costs and expenses (including 19 attorneys fees and costs), damages, liabilities, claims, and losses occurring or resulting to COUNTY in 20 connection with the performance, or failure to perform, by CONTRACTOR, its officers, agents, or employees 21 under this Agreement, and from any and all costs and expenses (including attorney's fees and costs), 22 damages, IiabiIities, claims, and losses occurring or resulting to any person, firm, or corporation who may be 23 injured or damaged by the performance, or failure to perform, of CONTRACTOR, its officers, agents, or 24 employees under this Agreement, provided that: (1)the COUNTY notifies CONTRACTOR in writing promptly 25 upon becoming aware of such a claim; and (2) the COUNTY, at CONTRACTOR' expense, provides 26 CONTRACTOR with reasonable assistance in the CONTRACTOR's defense and settlement of such claims. 27 This Section 8(A) does not require the CONTRACTOR to be responsible for or defend against claims or 28 damages arising solely from acts, errors, or omissions of the COUNTY, its Users, officers, agents, or -19- 1 employees. 2 B. In the event of a claim of alleged infringement of patent rights, copyright,trade secret rights, 3 or intellectual property rights, to the fullest extent permitted by law, CONTRACTOR agrees to and shall 4 indemnify, save, hold harmless, and at COUNTY's request, defend COUNTY, including its officers, officials, 5 agents, and employees from any and all demands, costs and expenses, penalties, attorney's fees and court 6 costs, damages of any nature whatsoever (including, without limitation, injury or damage to or loss or 7 destruction of property), judgments (including, without limitation, amounts paid in settlement and amounts 8 paid to discharge judgments), liabilities, claims and losses,suits, actions or proceedings of every name, kind 9 and description occurring or resulting to COUNTY, out of or in connection with any claim that is based on the 10 infringement(or assertions of infringement)of any of patent rights, copyright,trade secret rights,or intellectual 11 property rights with respect to services, software, or any Equipment provided by CONTRACTOR as part of 12 this Agreement, including, but not limited to, their materials, designs, techniques, processes and information 13 supplied or used by CONTRACTOR or any of CONTRACTOR's subcontractor of any tier in performing or 14 providing any portion of CONTRACTOR's obligations as outlined in this Agreement, provided that: (1) the 15 COUNTY notifies CONTRACTOR in writing promptly upon becoming aware of such a claim; and (2) the 16 COUNTY, at CONTRACTOR's expense, provides CONTRACTOR with reasonable assistance in the 17 CONTRACTOR's defense and settlement of such claims. If, in any suit, action, proceeding or claim relating 18 to the foregoing, a temporary restraining order or preliminary injunction is granted, CONTRACTOR shall 19 make every reasonable effort to secure the suspension of the injunction or restraining order. If, in any such 20 suit, action, proceeding or claim, the services, software or any Equipment provided by CONTRACTOR or 21 any part, combination or process thereof, is held to constitute an infringement and its use is enjoined, 22 CONTRACTOR shall immediately (a) pay the reasonable direct out-of-pocket costs and expenses to secure 23 a license to use such infringing work, replace the infringing work or modify the same so that it becomes non- 24 infringing, and (b) make every reasonable effort to secure for the COUNTY a license, at no cost to COUNTY, 25 authorizing COUNTY s continued use of the infringing work. If CONTRACTOR is unable to secure such 26 license within a reasonable time, CONTRACTOR, at its own expense and without impairing performance 27 requirements of the services, software, or any Equipment provided by CONTRACTOR as part of this 28 Agreement, shall either replace the affected services, software, or any Equipment provided by -20- 1 CONTRACTOR as part of this Agreement, combination or process thereof, with non-infringing services, 2 software, or other equipment, or modify the same so that they become non-infringing. This Section 8(13)does 3 not require the CONTRACTOR to be responsible fnr or defend against claims or damages arising solely from 4 (i)acts,errors, or omissions of the COUNTY, its Users, officers, agents, or employees,(ii)use of the Software, 5 or Services outside the scope of this Agreement; (iii) use of a superseded release of the Software; (iv) the 6 combination, operation, or use of any Software furnished under this Agreement with software, hardware, or 7 other materials not provided by CONTRACTOR or represented in the Documentation as interoperable with 8 the Software or Services; or(d) any modification of the Software not made by CONTRACTOR. This Section 9 states CONTRACTOR's entire liability, and the COUNTY's exclusive remedy,for any claims for infringement 10 or unlawful misappropriation,whether such action, claim or proceeding is based on breach of warranty or any 11 other cause of action. 12 C. The COUNTY shall defend, indemnify and hold CONTRACTOR harmless, at the 13 COUNTY's sole cost and expense, from and against any damages and third party claims that arise from (a) 14 infringement or contributory infringement to the extent caused in whole or in part by the COUNTY, its Users, 15 agents, representatives, employees or by third parties under the COUNTY's direction; (b) use of the Services 16 by COUNTY other than as permitted by the EULA and/or this Agreement or applicable Exhibits hereto; (c) 17 COUNTY'S breach of any of its obligations under the EULA and/or this Agreement or an applicable Exhibit; 18 (d) any personal injury or property damage caused by COUNTY; and (e) COUNTY's breach of any federal, 19 state or local law or regulation in connection with COUNTY's use of the Software or Services; provided that: 20 (1)the CONTRACTOR notifies the COUNTY in writing promptly upon becoming aware of such a claim; and 21 (2) the CONTRACTOR, at COUNTY's expense, provides COUNTY with reasonable assistance in the 22 COUNTY's defense and settlement of such claims. This Section 8(C) does not require the COUNTY to be 23 responsible for or defend against claims or damages arising solely from acts, errors, or omissions of the 24 CONTRACTOR, or its affiliates, officers, agents, subcontractors or employees. 25 The provisions of this Section 8 shall survive the termination of this Agreement. 26 9. INSURANCE 27 Without limiting the COUNTY's right to obtain indemnification from CONTRACTOR, CONTRACTOR, 28 at its sole expense, shall maintain in full force and effect, the following insurance policies or a program of self- -21- 1 insurance, including but not limited to, an insurance pooling arrangement or Joint Powers Agreement (JPA) 2 throughout the Term of the Agreement: 3 A. Commercial General Liability 4 Commercial General Liability Insurance with limits of not less than Two Million Dollars($2,000,000.00) 5 per occurrence and an annual aggregate of Four Million Dollars($4,000,000.00). This policy shall be issued 6 on a per occurrence basis. 7 B. (Omitted.) 8 C. Professional Liabili 9 If CONTRACTOR employs licensed professional staff, (e.g., Ph.D., R.N., L.C.S.W., M.F.C.C.) in 10 providing services, Professional Liability Insurance with limits of not less than One Million Dollars 11 ($1,000,000.00) per occurrence, Three Million Dollars ($3,000,000.00) annual aggregate. 12 D. Worker's Compensation 13 A policy of Worker's Compensation insurance as may be required by the California Labor 14 Code. 15 E. Cyber liability insurance with limits of not less than Two Million Dollars($2,000,000.00) 16 per occurrence. Coverage shall include, but not be limited to, any and all claims, damages, costs, fees, 17 regulatory fines and penalties, or forms of legal action involving Cyber Risks. The cyber liability policy shall 18 be endorsed to cover the full replacement value of, damage to, alteration of, loss of, theft of, ransom of, or 19 destruction of intangible property(including but not limited to information or data) that is in the care, 20 custody, or control of CONTRACTOR. 21 For purposes of the technology professional liability insurance and the cyber liability 22 insurance required under this Agreement, Cyber Risks include, but are not limited to, (i) security breaches, 23 which include disclosure of, whether intentional or unintentional, information provided by COUNTY, 24 information provided by or obtained from any inmate, or personakidentifying information relating to any 25 inmate, to an unauthorized third party; (ii) breach of any of C0NTRACTOR's obligations under this 26 Agreement relating to data security, protection, preservation, usage, storage, transmission, and the like; (iii) 27 infringement of intellectual property including, but not limited to, infringement of copyright, trademark, and 28 trade dress; (iv) invasion of privacy, including any release of private information; (v) information theft by any -22- 1 person or entity, whatsoever; (vi) damage to or destruction or alteration of electronic information; (vii) 2 extortion related to CONTRACTOR's obligations under this Agreement regarding electronic information,; 3 (viii) network security; (ix)data breach response costs, including security breach response costs; (x) 4 regulatory fines and penalties related to C0NTRACTOR's obligations under this Agreement regarding 5 electronic information, including information provided by COUNTY; and (xi) credit monitoring expenses. 6 Additional Requirements Relating to Insurance 7 CONTRACTOR shall obtain endorsements to the Commercial General Liability insurance naming the 8 County of Fresno, its officers, agents, and employees, individually and collectively, as additional insured, but 9 only insofar as the operations under this Agreement are concerned. Such coverage for additional insured 10 shall apply as primary insurance and any other insurance, or self-insurance, maintained by COUNTY, its 11 officers, agents and employees shall be excess only and not contributing with insurance provided under 12 CONTRACTOR's policies herein. This insurance shall not be cancelled or changed without a minimum of 13 thirty(30) days advance written notice given to COUNTY. 14 CONTRACTOR hereby waives its right to recoverfrom COUNTY, its officers, agents, and employees 15 any amounts paid by the policy of worker's compensation insurance required by this Agreement. 16 CONTRACTOR is solely responsible to obtain any endorsement to such policy that may be necessary to 17 accomplish such waiver of subrogation, but CONTRACTOR's waiver of subrogation under this paragraph is 18 effective whether or not CONTRACTOR obtains such an endorsement. 19 Within Thirty (30) days from the date CONTRACTOR signs and executes this Agreement, 20 CONTRACTOR shall provide certificates of insurance and endorsement as stated above for all of the 21 foregoing policies, as required herein,to the County of Fresno, Internal Services Department, 333 W. Pontiac 22 Way, Clovis, CA 93612 stating that such insurance coverage have been obtained and are in full force; that 23 the County of Fresno, its officers, agents and employees will not be responsible for any premiums on the 24 policies; that such Commercial General Liability insurance names the County of Fresno, its officers, agents 25 and employees, individually and collectively, as additional insured, but only insofar as the operations under 26 this Agreement are concerned; that such coverage for additional insured shall apply as primary insurance 27 and any other insurance,or self-insurance, maintained by COUNTY, its officers,agents and employees,shall 28 be excess only and not contributing with insurance provided under C0NTRACTOR's policies herein; and that -23- I this insurance shall not be cancelled or changed without a minimum of thirty(30)days advance,written notice 2 given to COUNTY. 3 In the event CONTRACTOR fails to keep in effect at all times insurance coverage as herein provided, 4 the COUNTY may, in addition to other remedies it may have, suspend or terminate this Agreement upon the 5 occurrence of such event. 6 All policies shall be issued by admitted insurers licensed to do business in the State of California, and 7 such insurance shall be purchased from companies possessing a current A.M. Best, Inc. rating of A FSC VI 8 or better. 9 10. AUDITS AND INSPECTIONS: Upon COUNTY's prior written request(not less than 10 days) 10 during the Term of this Agreement, and for 12 months immediately following the expiration of this Agreement, 11 CONTRACTOR shall make available to the COUNTY for examination all of its records and data with respect 12 to the following matters: (a) CONTRACTOR's policies and procedures regarding its security practices for the 13 Hosted System provided under this Agreement(provided that COUNTY shall not be entitled to review or see 14 any information about or belonging to other CONTRACTORS customers or information that CONTRACTOR 15 does not disclose to other similarly situated customers in connection with similar audits of CONTRACTOR's 16 security practices and procedures), and (b) CONTRACTOR's written records supporting the charges to 17 COUNTY under this Agreement(CONTRACTOR shall not be required to disclose any of its underlying costs 18 or charges by third parties (except where COUNTY is solely reimbursing CONTRACTOR for its actual costs 19 for Travel Expenses)). CONTRACTOR shall, upon request by the COUNTY, permit the COUNTY to audit 20 and inspect all of such records and data necessary to ensure CONTRACTOR'S compliance with the terms 21 of this Agreement. All such reviews/audits shall be subject to the following additional terms and conditions: 22 (i) such reviewslaudits shall occur not more than once during any 12 month period or as required by law 23 applicable to COUNTY, (ii) each review/audit shall be on days mutually agreed to COUNTY and 24 CONTRACTOR, and last no more than two (2) consecutive business days, (iii) such review/audit shall occur 25 during CONTRACTOR's standard business hours, and at a CONTRACTOR's designated business location, 26 and (iv) COUNTY will not unreasonably interfere with CONTRACTOR's normal business operations. 27 If this Agreement exceeds ten thousand dollars($10,000,00), CONTRACTOR shall be subject to the 26 examination and audit of the California State Auditor for a period of three (3)years after final payment under -24- 1 contract (Government Code Section 8546.7). 2 11. NOTICES: The persons and their addresses having authority to give and receive notices 3 under this Agreement include the following: 4 COUNTY CONTRACTOR COUNTY OF FRESNO ES! Acquisition, Inc. 5 Director of Internal Services/CIO Robert Watson, President and CEO 333 W. Pontiac Way 235 Peachtree Street NE, STE 2300 6 Clovis, CA 93612 Atlanta, GA 30303 7 All notices between the COUNTY and CONTRACTOR provided for or permitted under this 8 Agreement must be in writing and delivered either by personal service, by first-class United States mail, or 9 by an overnight commercial courier service. A notice delivered by personal service is effective upon service 10 to the recipient. A notice delivered by first-class United States mail is effective three COUNTY business days 11 after deposit in the United States mail, postage prepaid, addressed to the recipient. A notice delivered by an 12 overnight commercial courier service is effective one COUNTY business day after depositwith the overnight 13 commercial courier service, delivery fees prepaid, with delivery instructions given for next day delivery, 14 addressed to the recipient. For all claims arising out of or related to this Agreement, nothing in this section 15 establishes, waives, or modifies any claims presentation requirements or procedures provided by law, 16 including but not limited to the Government Claims Act (Division 3.6 of Title 1 of the Government Code, 17 beginning with section 810). 18 12. GOVERNING LAW: Venue for any action arising out of or related to this Agreement shall only 19 be in Fresno County, California. 20 The rights and obligations of the parties and all interpretation and performance of this Agreement 21 shall be governed in all respects by the laws of the State of California. 22 13. DISCLOSURE OF SELF-DEALING TRANSACTIONS 23 This provision is only applicable if the CONTRACTOR is operating as a corporation (a for-profit or 24 non-profit corporation) or if during the Term of the agreement, the CONTRACTOR changes its status to 25 operate as a corporation. 26 Members of the CONTRACTOR's Board of Directors shall disclose any self-dealing transactions 27 that they are a party to while CONTRACTOR is providing goods or performing services under this 28 agreement. A self-dealing transaction shall mean a transaction to which the CONTRACTOR is a party -25- 1 and in which one or more of its directors has a material financial interest. Members of the Board of 2 Directors shall disclose any self-dealing transactions that they are a party to by completing and signing a 3 Self-Dealing Transaction Disclosure Form, attached hereto as Attachment A and incorporated herein by 4 reference, and submitting it to the COUNTY prior to commencing with the self-dealing transaction or 5 immediately thereafter. 6 14. ENTIRE AGREEMENT: This Agreement, including all Attachments and Exhibits attached 7 hereto, constitutes the entire agreement between the CONTRACTOR and COUNTY with respect to the 8 subject matter hereof and supersedes all previous Agreement negotiations, proposals, commitments, 9 writings, advertisements, publications, and understanding of any nature whatsoever unless expressly 10 included in this Agreement. The waiver of a breach of any provision of this Agreement will not operate or be 11 interpreted as a waiver of any other or subsequent breach. Each party represents that the person signing this 12 Agreement has been properly authorized and empowered to execute and deliver this Agreement and any 13 Attachment, Exhibit, Statement of Work or Quotes hereto on behalf of such party. Any Attachments to this 14 Agreement and any Attachment, Exhibit, Statement of Work or Quote now existing and hereafter executed 15 or issued that are made pursuant to this Agreement shall be deemed to be part of this Agreement, and are 16 incorporated into this Agreement by reference. Except as otherwise provided herein or in an applicable 17 Attachment, Exhibit, Statement of Work or Quote,this Agreement and any Attachment, Exhibit, Statement of 18 Work or Quote may be changed or modified only in a written document signed by duly authorized 19 representatives of both parties. This Agreement may be executed by the parties in one or more counterparts 20 or duplicate originals, and each of which when so executed shall be an original, but all such counterparts 21 shall constitute one and the same document. 22 23 24 25 26 27 28 -26- 1 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year 2 first hereinabove written. 3 4 COUNTY OFFRESNO 5 777s5�-- Aut orized Signature) Nathan Magsig, Chairman of the Board of 6 Supervisors of the County of Fresno 7 Kdt, Meek{; , �Y LA Print Name & Title 8 2�� e-&OTC- 9 kf_LWA, &iA 30303 10 Mailing Address ATTEST: Bernice E. Seidel 11 Clerk of the Board of Supervisors 12 County of Fresno, State of California 13 14 15 By. 16 a ty FOR ACCOUNTING USE ONLY: 17 Fund: 0001 18 Subclass: 10000 19 ORG: 56201500 20 Account: 7309 21 22 23 24 25 26 27 28 -27- 1 Attachment 1 to Agreement 2 End User License Agreement("EULA") 3 (intentionally blank— the Attachment 1 follows hereafter) 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -28- ATTACHMENT 1 ESI ACQUISITION, INC. END USER LICENSE AGREEMENT HOSTING IMPLEMENTATION This End User License Agreement(the`EULA") is incorporated in and governed by the terms of the Agreement. In the event of a conflict between this Attachment 1 —EULA and the Agreement,this EULA and the terms herein shall control for purposes of the software,services,and hosting services.The following Exhibits are included herein: 1. Exhibit A—Term and Licensed Software/Products 2. Exhibit B—Description of Support Services 3. Exhibit C—Fees and Payment Terms 4. Exhibit D—Hosting Services 5. Exhibit E—Statement of Work 6. Exhibit F—Consulting Services Rates As of the Effective Date of the Agreement,the Parties acknowledge that the Licensee is currently licensed with the Software licenses set forth on Exhibit A hereto and no new Software licenses are being provided by ESi to Licensee upon execution of the Agreement Upon completion of the Services to migrate the Software licenses from Client's User Equipment on Client's premises to the ESI Hosted Services pursuant to the terms of the Exhibit D attached hereto,the previously agreed to End User Licensed Agreement("Prior Agreement"), by and between the Parties,for the Software to now be licensed under this EULA and the Agreement to which is this EULA is attached, shall be and be deemed null and void and of no force and effect with regards to the Software licenses set forth on Exhibit A hereto and such Software licenses shall be subject to and governed by this EULA and the Agreement Notwithstanding the foregoing,the Parties acknowledge that Client has a non-production development instance of the Software licenses installed locally on Client's User Equipment and such Software licenses shall be subject to the Agreement,and this EULA as far as a premise,non-production license. For good and valuable consideration,the receipt and sufficiency of which is hereby acknowledged,the parties agree as follows: 1. License Agreement. This is a license agreement and not an agreement for sale. As of the Effective Date of the Agreement (defined above), this EULA covers Software and services (including Support Services) that Client purchases from ESi as a provider of cloud/hosting services for the Software governed by this EULA ("Services") pursuant to Exhibits, Orders and Quotes hereto. The Agreement and all applicable Exhibits, and any attachments thereto and hereto are the complete agreement regarding ESi's Services hereunder and replace any prior oral or written communications between Client and ESi relating to such transactions. Client agrees that purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by ESi regarding future functionality or features. 2. Definitions. Unless otherwise specifically stated in this EULA or in any Exhibit or Quote hereto,the capitalized terms used In this EULA shall have the meanings set forth below: 2.1 "Administrator"means an employee,officer,director or consultant of Client to whom Client has provided a user account and certain rights to administer the Software on behalf of Client. 2.2 "AffiIiata" means an entity that controls,is controlled by,or is under common control with a party hereto. 2.3 "Hosting Services" means as set forth in Exhibit D to this EULA. 2.4 "Consulting Services" means all the professional services for installation or implementation of Hosting Services or Software,training services,or other non-recurring services as set forth on Exhibit E hereto; Consulting Services do not include Hosting Services or Support Services. 2.5 "Derivative Work(s)"means the work based on or derived from or modifications,enhancements or other functional extensions of the Software. 2.6 "Documentation" means the user manuals, requirements, specifications, training materials, and any other documents, materials, information or guidance, whether supplied as printed material or in electronic form, provided by ESi in conjunction with the purchase,training, use, maintenance or update of the Software. 2.7 "Installation"of the Software shall be deemed to be complete on the sooner to occur of(i)the day that the Software is available for production, (ii) the date of Client's first use of the Software in a live production environment, or (iii) ninety (90) days following the date of Client's execution of the Agreement(or if for an amendment, Exhibit or Statement of Work adding Software License(s) under the Agreement, the Client's execution of such subsequent amendment, Exhibit or Statement of Work). Confidential and Proprietary [CLEAN]Attch 1 EULA 00613335 final 07 10.2019-COF edits 7.10.19.docx Page 1 of 22 2.8 "License" means certain limited rights to use the proprietary ESi Software, Software Updates, online and/or hard-copy documentation and user guides as set forth in Section 4 of this EULA and for the Term set forth in Exhibit A. 2.9 "Module" means a proprietary set of status boards developed by ESi for use with selected WebEOC- branded software which are designed to address a common functional need. 2.10 "Party"means ESi or the Client individually and "Parties"shall mean ESi and the Client collectively. 2.11 "Software," means, individually and collectively, all of the software licensed to Client from ESi as identified on Exhibit A hereto and Software Updates to such software. 2.12 "Software Support Plan" means the Support Services plan provided by ESi pursuant to Exhibit C and Quotes to this EULA. 2.13 "Software Updates" means any technical correction, patch, bug fix, enhancement or other software release provided to Client pursuant to this License and the Software Support Plan purchased by Client. 2.14 "Standard Business Hours"shall mean 9:00 a.m.through 6:00 p.m. U.S.Eastern Time,Monday through Friday, excluding holidays, and are subject to change by ESi. 2.15 "Support Services"means the maintenance and support services provided by ESi pursuant to Section 12, Exhibit B and Exhibit C to this EULA. May also be referred to as"Software Support Services." 2.16 `Surge Capacity Plan" means an optional emergency response program which permits Client to increase the number of Users to support response to or recovery from an incident declared a disaster by a state or federal government agency. 2.17 `Term" means as set forth in Section 5 of this EULA. 2.18 "Travel Expenses"means travel, living and out of pocket expenses(including travel agent service fees and applicable internal per diems) incurred by ESi in connection with the performance of Services hereunder, including, without limitation, charges and fees incurred by ESi resulting from the cancellation/rescheduling of scheduled air travel or similar services based on changes requested by Client to the applicable dates for performance of the relevant Services. 2.19 "User" means an authorized employee, contractor or affiliate of Client to whom Client has provided a user account for the Software. 3. Ownership and Licensing Authority. 3.1 Ownership of, and title to, the Software and Documentation shall be held by ESi and its licensor(s)and is protected by United States law and applicable intemat]onal laws, treaties and conventions regarding intellectual property. ESi warrants that it has the power and authority to grant the license described herein. ESi and its licensor(s)shall retain all rights, title and ownership not granted herein to all copies of the Software and Documentation licensed under this EULA and the Agreement. 3.2 ESi represents and warrants that it is authorized to redistribute and license any third-party software delivered with the Software and Documentation provided under this EULA and the Agreement. The owner of such third-party software shall have the right to enforce such licenses to the extent permitted by applicable law. 4. Grant of License. ESi grants to Client, and Client accepts, subject to the following terms and conditions and payment of the applicable license fee, a limited non-exclusive, non-transferable, and non-sublicensable License, revocable term License according to the terms stated herein,to use the Software and Documentation for the stated Term. Except as expressly authorized in this EULA, Client shall not rent, lease, loan, sell, sublicense, distribute, transfer, copy, reproduce, display, modify, provide cemmercial hosting services, time share or dispose of the Software or Documentation or any part thereof, use the Software to provide any services to third parties or otherwise use the Software and Documentation to generate commercial revenue. 5. Term. The "Term" of this EULA shall commence on the Effective Date of the Agreement and shall continue through the sooner to occur of: (i)termination of this EULA pursuant to the terms hereof or termination of the Agreement pursuant to the terms thereof, or(ii)expiration of the"Term"of the License to the Software as set forth in Exhibit A(Exhibit A is herein incorporated and made part of this EULA by this reference). 6. Permitted Uses. Client's, and its User's, access and use of the Software shall be limited and subject to the following terms and conditions: a. Client may install and use one (1) Instance of the Software on one (1) Machine. As used herein, "Machine"means a single laptop, personal computer or web server,or a combined web and database server or multiple load-balanced web servers, configured to point to a single database and database server that is used operationally or'in production"(`Instance"). b. Client may use the Software and Documentation solely for Client's intemal business purposes. c. Client also may make one(1)copy of the Software for back-up or archival purposes. Confidential and Proprietary [CLEAN]Attch 1 -EULA 00613335 final 07.10.2019-COF edits 7.10.1g.docx Page 2 of 22 d. License also may install the Software to support "non-production" software development cycle activities if a non-production license is granted to the Client pursuant to this EULA as set forth In Exhibit A, e. If Client requires or desires operational use of more than one Instance of the Software,an additional License(s)shall be required. f. The Software is licensed on a named and active user basis. Each User shall have a unique user account. User accounts, usernames and passwords shall not be shared. Clierrt may provide access to the number of Administrators and Users set forth in Exhibit A to this EULA. User counts are based on the number of unique log-ins each month. ESi shall have the right to conduct regular audits of Client compliance with the number of Users permitted underthis EULA. Client agrees to provide ESi with the information required to complete such audits. Such audits shall be conducted at ESi expense,except that Client shall be responsible for reimbursing ESi for all reasonable audit expenses if Client shall be found in violation of the User limits set forth in this EULA. Client shall be in violation of User limits if the number of Users during any month covered by the audit is greater than the number of Users permitted in Exhibit A and such increase in Client is not supported by a Surge Capacity Plan, g. Administrators and Users shall have different rights to access the Software: i. Administrators may access all features of the Software. Certain features of the Software may only be accessed by named users who are granted status as an Administrator ("Administration Tools"). Administration Tools include, without limitation, the following: creation and administration of user accounts; creation and subsequent editing of incidents; software configuration; use of the WebEOCO BoardBuilder tool; installation and administration of board sets, plug-ins, modules, interfaces and Software Updates; and access to the Softwrare's Application Programming Interface. ii. Users may not be granted access to any Administration Tools, except that Administrators may grant designated Users rights to create or edit incidents and to add or edit maps in MapTac"A. h. Except where otherwise provided in this EULA, rights to access and use Administrative Tools are given exclusively to the Client and Client may not grant such rights to any third party. i. Client may provide its consultant(s) or independent contractor(s)with access to the Software and Documentation, provided that such consultants or independent contractors are using the Software and Documentation exclusively for the benefit of the Client. Client shall be responsible for compliance by its consultants and independent contractors with the terms and conditions of this EULA and the Agreement. j. If your licensed Software includes the Web EOCO Bo ardBuiIder tool, Client may use the WebEOC1� BoardBuiIdor tool to copy, modify and create Web EOCO forms and templates("Status Boards")and Client may distribute, in printed form or as electronic media,the Status Boards to Client's authorized users, provided that such Status Boards are used exclusively for the intemaI business purposes of Client.Status Boards shall be considered Derivative Work(s)of the Software and Client shall not sell, resell, license or otherwise transfer for value any Derivative Work(s) created using the WebEOC® Board Builder tool, and Client shall not distribute such Derivative Work(s) as part of any product or service for value to any third party. Any Derivative Work(s)prepared by Client shall remain subject to the terms of this EULA and the Agreement and shall clearly display the following copyright notice to property acknowledge the proprietary rights of ESi and its third-party licensors:"This work includes the intellectual property of ESi and its licensors and is provided under license. Copyright© 2002- 2016, ESi and its licensors. All rights reserved." k. Client may, at its option and according to the terms of the ESi standard price list,obtain a Disaster Recovery Software License to support replication of an active, source server to one or more redundant ("Target") servers which may be placed in use to support disaster recovery or fail-over activities. A Disaster Recovery Software License is required for each Target server. A Disaster Recovery Software License may be used to operate an"in production"instance of the Software only when the source server is inactive or inoperable;only one Instance of the Software shall be active at any one time. Client is not required to obtain additional licenses for Software plug-ins, modules or interfaces installed on a redundant licensed Machine. Permitted uses of WebEOC Fusion vary from the terms set forth in items(a)through (f)of this Section. Client may install and place in production one (1) copy of WebEOC Fusion on one (1) source server and one (1) Target server. Client may make one(1)copy of the Software for back-up or archival purposes, or Client may install a second copy of the WebEOC Fusion software on a second Machine if only one (1) copy of the WebEOC Fusion software is in use at any ona time. There is no limit to the number of licensed instances of WebEOC'(or number of WebEOC client)which may be connected by a single instance of WebEOC Fusion, provided that(i)only the Client of the WebEOC Fusion software has administrative privileges Confidential and Proprietary [CLEAN]Attch 1 LULA 00613335 final 07.10.2019-COF edits 7.10.19.docx Page 3 of 22 and administrative access to the WebEOC Fusion software and (d) the Client has paid to ESi all applicable connection fees. 7. Protection of Software.Client agrees to take all reasonable steps to protect the Software and Documentation from unauthorized copying or use. The Software source code represents and embodies trade secrets of ESi and/or its third-party licensors.The Software source code and embodied trade secrets are not licensed to the Client.Client agrees not to disassemble,decompile or otherwise reverse engineer the Software, use reflection or other mechanism to view, interpret,translate or try to understand the structure of the Software,orotherwise attempt to discover the source code and/or the trade secrets contained in the source code, and Client will not allow third parties to do so. Client may not, nor altow third parties to, modify or alter the Software in any way. B. Confidentiality. 8.1 CQnfidential Information Defined. During the term of this EULA and in connection with each party's performance of their respective duties and obligations hereunder and thereunder, each party will disclose to the other (`Disclosing Party") and the other party shall receive ("Receiving Party") certain Confidential Information of the Disclosing Party. The term `Confidential Information"shall mean any and all information that the Disclosing Party discloses to the Receiving Party in connection with or related to the Agreement, whether disclosed verbally,electronically,visually,or in a written or other tangible or intangible form, including, but is not limited to, trade secrets, customers, customer lists, intellectual property, computer programs, software, formulas, data, inventions, techniques, financial, marketing or product development plans, personnel, audit results,designs,performance data, as to ESi,the ESi Technology and any other deliverables (including, without limitation, data, information, computer code and reports) provided in connection with the Software, and, as to Client, the Client's Information, as well as any other information that the Disclosing Party clearly communicates to the Receiving Party as confidential. 8.2 Duties with Regard to Confidential Information. The Receiving Party agrees that it will only use the Disclosing Party's Confidential Information in the performance of its obligations hereunder or as otherwise expressly provided in this EULA and the Agreement, and that it will only disclose the Disclosing Party's Confidential Information only to those of its directors, officers, employees, consultants, agents, independent contractors, and professional advisers who need to know such information and who are subject to written agreements with the Receiving Party sufficient to enable the Receiving Party to require such persons to comply with the Receiving Party's confidentiality obligations hereunder. The Receiving Party agrees that it will treat all of the Disclosing Party's Confidential Information with the same degree of care (but no less than reasonable care)as it accords its own confidential information. Notwithstanding the foregoing or ESi's obligations elsewhere in this Section, Client understands that ESi does not require any information for the performance of Services hereunder other than telephone numbers and applicable account ID's, and that ESi cannot guarantee the security of Client Information when stored on Client's applicable equipment and hardware or transmitted or accessible when using the internet or other services providers. ESi shall not be liable or responsible to Client or any other party for any losses, damages, claims, costs or other obligations arising out of or relating to any unauthorized access to, disclosure or use of information stored by Client on the System or while such information is transmitted or accessible through the Software, the internet, or services providers. Additionally, ESi shall not be responsible for any breach of security or confidentiality caused by Client's failure to maintain the confidentiality and control of its user identification numbers or passwords related to its use of the Software provided hereunder. 8.3 Exclusions from Confidential Information, Confidential Information does not include information that (a) is or becomes generally available to the public other than as a result of an unauthorized disclosure by the Receiving Party or its personnel; (b) has been or is obtained by the Receiving Party from an independent source without accompanying obligations of confidentiality; (c) is independently developed by the Receiving Party without reliance in any way on the Disclosing Party's Confidential Information; or(d)has been approved for unrestricted release by the Disclosing Party in writing. Additionally, the Receiving Party may disclose the Disclosing Party's Confidential Information where the Receiving Party is required by lawto disclose information that is otherwise Confidential Information, provided (to the extent not prohibited by law)the Receiving Party has first notified the Disclosing Party in writing as soon as is commercially reasonable of such requirement to disclose the Disclosing Parry's otherwise Confidential Information in order to permit the Disclosing Party to seek confidential treatment of such information. ESi agrees to reimbursement to Client for services for the number of hours spent by Client responding to legal requests for ESi information in Client possession. Additionally, Client agrees to reimbursement to ESi at its then current hourly rate for such services for the number of hours spent by ESi responding to legal requests for Client Information in ESi possession. 8.4 Protection of Confidential Information. Notwithstanding the "Dispute Resolution" Section of this EULA,the Receiving Party acknowledges that the Disclosing Party shall have the right to take all reasonable steps to protect the Disclosing Party's confidential and proprietary interests, including, but not limited to, Confidential and Proprietary [CLEAN]Attch 1 -EULA 00613335 final 07.10.2019-COF edits 7.10.19.docx Page 4 of 22 injunctive relief in a court of law or equity and any other remedies as may be available at law or in equity in the event the Receiving Party does not fulfill its obligations under this Section. 8.5 Survival of Confidentiality Obligations. Each party's obligations of confidentiality pursuant to this Section 8 for all Confidential Information disclosed between the parties during the term of this EULA shall survive the expiration or termination of this EULA and/or the Agreement as follows: (i) for Confidential Information cons isling of trade secrets,for so long as such information remains a trade secret of the disclosing party or for five(5)years following the expiration or termination of this EULA and/or the Agreement,whichever is longer, (ii) for Confidential Information consisting of the disclosing party's Client information or ESi's suppliers' information, indofinitely, and(iii)for ail other Confidential Information,for five(5)years following the expiration ortermination of this EULA and/or the Agreement. 8.6 Termination of the Agreement. Upon termination of this EULA and/or the Agreement or upon the Disclosing Party's written request, the Receiving Party agrees to terminate all use of the Disclosing Party's Confidential Information and to either to return to the Disclosing Party all copies of the Disclosing Party's Confidential Information in its possession or under its control or to provide the Disclosing Party with a written notice from one of the Receiving Party's authorized representatives certifying that all copies of the Disclosing Party's Confidential Information in the Receiving Party's possession or control have been destroyed;provided, however, the Receiving Party may(at its option, but not its obligation) keep a copy of the Disclosing Party's Confidential Information in its archives, and the provisions of this Section shall continue with respect to such Confidential Information. 9. Proprietary Interests. The Software and Documentation, and all copies thereof, shall remain the exclusive property of ESi and/or its third-party licensors. All applicable rights to copyrights,trademarks, logos, patents and other intellectual property shall remain vested in ESi and/or its third-party licensors. Client shall not claim, register, alter or modify, any interest in such copyrights, trademarks, patents or other intellectual property, nor shall Client nor attempt to do any of the foregoing. Client shall not translate any of the ESi trademarks into any other language or alphabet. Notwithstanding the foregoing, Client shall always have title to data input and output arising out of the use of the Software, and any computer programs developed by or for Client using output of the Software as input to another source, and which do not include any logic and code of the Software, and such shall remain the exclusive property of the Client. Client acknowledges and agrees that ESi may seek equitable relief at any time to remedy a violation or threatened violation of the restrictions set forth herein regarding the use and protection of the Software and Documentation. 10. Copving of Documentation.Client may make as many copies of the Documentation as necessary for Client's internal purposes, provided the Client shall not modify or alter the content or appearance of the Documentation, modify or alter the appearance of any ESi trademark or logo in the Documentation, or eliminate any references to ESi,WebEOC®or other ESi Software in the Documentation and provided that the License shall reproduce and distribute the ESi copyright and notices page contained in the Documentation with all such copies and maintain the confidentiality of the copies and destroys or returns such copies in accordance with Section 8(Confidentiality)above. 11. Support Services. During the Term of this EULA and provided Client is not in violation of this EULA and the Agreement, ESi will provide Support Services (all as further defined in Exhibit B hereto; Exhibit B is herein incorporated and made part of this EULA by this reference)for the Software during the Standard Business Hours consisting of the following: (i) ESi will use reasonable efforts to maintain the Software to comply with the applicable Documentation in all material respects, and (ii) if and when made generally available through Support Services to ESI's other customers receiving Support Services, providing subsequent releeses and versions of the Software for use consistent with ESI's then current policies.All Software Updates received by Client shall be subject to the terms of this EULA. Support Services shall not include, and ESi shall not be responsible for, failures of the Software to perform consistent with the Documentation, specifications, requirements and other details set forth in Exhibit A or any subsequent amendments or quotes hereto in all material respects resulting from or caused by Client, Client's hardware and equipment, Client's connection to the Software, third party service providers, including, without limitation, communications services providers, or otherwise disclaimed elsewhere in this EULA. 12, Hosting Services. During the Term of this EULA and provided Client is not in violation of this EULA and the Agreement, ESi will provide Hosting Services, as set forth in Exhibit D hereto, for the Software during the Standard Business Hours. Exhibit D is herein incorporated and made part of this EULA by this reference. 13. Conaulting Services, ESi will provide the Consulting Services set forth in Exhibit E hereto for the Fees for such professional services as set forth in Exhibit C and Exhibit E, if any. Exhibit E is herein incorporated and made part of this EULA by this reference. Confidential and Proprietary [CLEAN]Attch t -EULA 00613335 final 07,10,2019-COF edits 7.10,19.docx Page 5 of 22 14. Warranty. 14.1 Warranty by ESi.For new Software licensed pursuant to this EULA(for instance,merely adding additional User licenses for use with the Software would not be considered new Software), ESi warrants that,for a period of 60 days from the Installation (the "Software Warranty Period"), the Software, when used in accordance with the applicable Documentation and the Agreement,will perform in compliance with the specifications for such Software as set forth in the Documentation in all material respects. In the event the Software fails to perform as warranted herein during such Software Warranty Period,and ESi receives written notice of such failure from Client following the first occurrence of such failure (and in all events prior to the expiration of the Software Warranty Period): a. ESi shall use all reasonable efforts to correct any reproducible error condition reported to ESi in such written notice during the Software Warranty Period as soon as reasonably possible (not to exceed thirty(30)days)following receipt of such written notice; b. if ESi is unable to resolve such failure to comply with the warranty as provided above through either a correction or reasonable work around, Client may terminate the applicable order only(in its entirety) without penalty or liability for any amounts payable(other than charges and fees incurred prior to the effective date of such termination)on written notice to ESi for any failure to comply with the warranty. Additionally, to the extent not already waived or expired as provided above, all rights of termination by Client pursuant to this Section shall expire to the extent ESi has not received a written notice of termination pursuant to this Section prior to the expiration of the Software Warranty Period. c. In the event of termination of an order as provided in this Section, Client shall not be obligated to pay any additional charges or fees payable pursuant to such terminated order for the period after the effective date of such termination;and d. The limited warranty provided hereunder(including ESi's obligations to restore Software and provide corrections and Client's rights of termination pursuant to this Section)shall not apply to Software to the extent it has been modified by other than ESi (or its contractors or agents), modified at Client's request, or not used in accordance with the requirements of the Agreement, the Documentation, specifications, and the Quotes or order forms. ESi does not warrant that the Software will operate uninterrupted or error free,that all errors can be corrected,or that it will satisfy Client's requirements. This Section sets forth Client's sole and exclusive remedy, and ESi's entire liability, for the failure of the Software to satisfy the warranty described in this Section.Any refunds pursuant to this Section shall be applied against any limitations of liability set forth in this EULA and the Agreement. ESi shall have no obligations pursuant to this Section for claims under this Section for which Client does not provide ESi written notice prior to the expiration of the Software Warranty Period. In addition to the terms above, any termination of an initial Quote or Order pursuant to this Section shalt also terminate the Agreement(and any termination of the Agreement,shall include termination of the EULA). 14.2 Warranty by Client. Client represents and warrants that it will not interfere with ESi's systems or the use of any services or systems by other ESi's customers or licenses. In the event of any breach of the foregoing Client warranty,in addition to any other remedies available at law or in equity, ESi will have the right, in its sole reasonable discretion, to terminate or suspend immediately any related Software if deemed reasonably necessary by ESi to prevent any harm to ESi, its customers and/or its business. ESi will provide to Client notice and an opportunity to cure the breach. Once cured, ESi will restore the Software or access to the Software. 15. Disclaimers. 15.1 ESI DISCLAIMS ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY,FITNESS FORA PARTICULAR PURPOSE, WITH RESPECT TO THE SOFTWARE AND/OR ACCOMPANYING DOCUMENTATION. NO ORAL OR WRITTEN ADVICE OR INFORMATION PROVIDED BY ESI OR ANY OF ITS AGENTS, EMPLOYEES OR CONTRACTORS SHALL CREATE A WARRANTY, AND CLIENT IS NOT ENTITLED TO RELY ON ANY SUCH ADVICE OR INFORMATION. ESI EXPRESSLY DISCLAIMS ANY WARRANTY THAT THE SOFTWARE WILL OPERATE UNINTERRUPTED OR FREE OF ERRORS. Confidential and Proprietary [CLEAN]Attch 1 -EULA 00613335 final 07.10.2019-COF edits 7.10.19.dorx Page 6 of 22 15.2 The Software is an information management application. The software is not fault-tolerant and is not designed, manufactured, or intended for use or resale in hazardous environments that require fail-safe performance such as in the operation of nuclear facilities, aircraft navigation or communications systems, air traffic control, emergency response, terrorism prevention or response, life support or weapons systems (collectively"High Risk Activities"),the failure of which could lead to death, personal injury, or severe physical or environmental damage. ESI EXPRESSLY DISCLAIMS ANY WARRANTY OF FITNESS FOR HIGH RISK ACTIVITIES.Client agrees to indemnify, defend and hold ESi,and its affiliates,officers,directors, employees, agents, subcontractors, licensors, successors, and assigns harmless from and against any and all liability, losses, claims, expenses (including attorneys' fees), demands or damages of any kind, including direct, indirect,special, punitive, incidental,or consequential damages,arising out of or in connection wlth the Client's use of the Software for High Risk Activities. 16. Fees and Payment Terms. 16.1 Travel Expenses and Additional Charges. To the extent that the Software and services provided hereunder may require ESi to travel, Client shall pay Travel Expenses reasonably incurred by ESi in connection with such travel. ESi shall invoice Client for Travel Expenses on a monthly basis as incurred. Travel Expenses are in addition to any charges set forth in this EULA and the Agreement or any Quote hereto. Other additional charges may be required should Client elect to: (a) use the Software on more than one (1) Licensed Machine; (b)increase the number of named users who may access the Software; (c) increase the number of non-production instances of the Software;(d) license additional Software; (e)upon renewal; or(f) as otherwise required by this EULA and the Agreement. Such additional charges shall be as set forth in such mutually agreed upon Quote or amended Exhibits or order form to this EULA and the Agreement. 16.2 Renewal Charges. At least sixty (60)days prior to the expiration of the Initial Period (as defined in Exhibit A of the Term, ESi shall notify Client of the current fees for Software and Software Support Services, and ESi shall invoice Client forsuch fees for the Renewal Period(as defined in Exhibit A so that such amount is due and payable prior to the commencement of such Renewal Period. 16.3 Suspension of the Software, Services and Support Services.Without limitation as to any other rights or remedies of ESi under this EULA and the Agreement, ESI reserves the right to immediately suspend Client's access to and use of the Software and the Services (including,without limitation Support Services), without notice to Client, if any charges or fees payable to ESI are past due and not paid within the time frame set forth in Section 16.1 or elsewhere in this EULA and the Agr-aernent or an Exhibit, Statement of Work or Quote hereto, as applicable. Client agrees that ESI shall have no liability to Client, and Client waives any claim or action against ESI in the event of suspension or termination of access to or use of the Software and the Services for Client's failure to timely pay Charges. Client's payment obligations shall continue during any period of suspension pursuant to this Section. 16.4 Taxes. All Charges charged by ESI are exclusive of, and Client shall be solely responsible for payment of, all taxes, except for any taxes based upon ESI's net income, assets or worth. ESI shall invoice Client for amounts it is obligated to collect or is allowed to recover as taxes as provided above. Client's obligations for the payment of taxes payable hereunder shall survive the expiration or termination of this EULA and/or the Agreement. 17. Limitations of Liability. ESI (INCLUDING ITS AFFILIATES) SHALL NOT BE LIABLE FOR SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS EULA OR THE AGREEMENT OR ANY EXHIBIT, QUOTES OR ORDERS HEREUNDER (HOWEVER ARISING, UNDER ANY THEORY INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, CONTRACT OR STRICT LIABILITY), INCLUDING, BUT NOT LIMITED TO, CLAIMS FOR INTERRUPTED COMMUNICATIONS, LOST DATA, LOST REVENUE, LOST PROFITS, LOSS OF TECHNOLOGY, LOSS OF RIGHTS OR SOFTWARE OR SERVICES AND/OR DAMAGES THAT RESULT FROM INCONVENIENCE, DELAY OR LOSS OF USE OF ANY INFORMATION OR DATA OR OF THE SOFTWARE OR SERVICES, EVEN IF ESI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY HEREIN. SUBJECT TO THE FOREGOING, FOR THIS EULA, THE AGREEMENT AND EACH OUOTE FOR SOFTWARE OR SERVICES HEREUNDER, IN NO CASE SHALL ESI'S (INCLUDING ITS AFFILIATES)AGGREGATE LIABILITY DURING ANY TWELVE(12)MONTH PERIOD DURING THE TERRA OF THIS EULA (THE FIRST OF WHICH SHALL COMMENCE ON THE EFFECTIVE DATE OF THE AGREEMENT) UNDER ANY CIRCUMSTANCES EXCEED THE AMOUNTS ACTUALLY PAID TO ESI BY CLIENT PURSUANT TO THIS EULA AND/OR THE AGREEMENT DURING SUCH TWELVE (12) MONTH PERIOD (EXCLUDING TRAVEL EXPENSES). THE PARTIES UNDERSTAND AND AGREE THAT THE Confidential and Proprietary [CLEAN]Attch 1 -EULA 00613335 final 07.10.2019-COF edits 7.10.18.docx Page 7 of 22 LIMITATION OF LIABILITY SET FORTH IN THIS EULA AND THE AGREEMENT REPRESENTS A REASONABLE ALLOCATION OF RISKS, AND EACH PARTY EXPRESSLY CONSENTS TO SUCH ALLOCATION. ESI SHALL HAVE NO LIABILITY OF ANY KIND IN THE EVENT CLIENT'S RECORDS OR OTHER DATA SUBMITTED FOR PROCESSING ARE LOST OR DAMAGED. 18. Termination. 18.1 Termination for Cause. This EULA and the Agreement or any Exhibit or Quotes hereto may be terminated as follows: a. by ESi upon the breach by Client of any of its payment obligations under this EULA and/or the Agreement or any Quote or Exhibit hereto,which breach has not been cured within five(5)days after Client has received written notice thereof, b. by one party upon the breach by the other party of any of such other party's material obligations under this EULA or the Agreement or any Quote or Statement of Work hereto that has not been cured within thirty(30)days after the breaching party has received written notice thereof(provided, however,that there shall be no cure period in the event of a breach by Client of its obligations related to ESi's intellectual property), or c. by ESi if all or a substantial portion of the assets of Client are transferred to an assignee for the benefit of creditors or Client files or has filed against it a petition for liquidation under bankruptcy or similar laws and such proceeding is not dismissed within sixty(60)days. If the basis for termination for cause applies only to a specific Quote or Statement of Work,the non-breaching party may elect to terminate only the affected Quote and associated Statement of Work, in which Casa this EULA and the Agreement and other Quotes will remain in full force and effect. A breach of the terms of this EULA or the Agreement or a Quote by a User shall be deemed to be a breach of the terms of the Agreement by Client. 18.2 Effective Date of Termination for Cause. Termination for cause based upon 17.1(a)above shall be effective on the 61h day after Client received the original written notice of breach if cure is not made or if some interim arrangement has not been reached between the parties (and agreed in writing)during the five(5)day cure period. Termination for cause based upon 17.1(b) above shell be effective on the 315r day after the breaching party received the original written notice of breach if cure is not made or if some interim arrangement has not been reached between the parties (and agreed in writing) during the thirty (30) day cure period; provided, however, if a breach under 17.1(b) is not subject to cure (e.g., disclosure of a party's Confidential Information), termination for cause is effective immediately upon the party providing written notice of termination to the breaching party consistent with the notices provision of the Agreement. Termination for cause based upon 17.1(c) above shall be effective immediately after the assignment for benefit of creditors has been made or the filing of a petition for liquidation under bankruptcy or other insolvency laws and such have not been dismissed, dissolved or the petition lifted or stayed. 1B.3 Effects of Termination. Termination of this EULA and/or the Agreement shall result in the termination of all outstanding Quotes, Statements of Work and Exhibits, and termination of the Agreement and/or all outstanding Quotes, Statements of Work and Exhibits shall result in the termination of this EULA, All Services and all Software licenses and rights granted under this EULA and all Quotes, Statements of Work and Exhibits hereto shall immediately terminate upon termination of this EULA and/or the Agreement. All Services and all licenses and rights granted pursuant to an applicable Quotes,Statements of Work and Exhibits shall terminate upon the expiration or termination of the applicable Quotes, Statements of Work and Exhibits. Upon termination of this EULA and/or the Agreement, ESi will immediately cease performing all Services and terminate Client's and its User access to the Software.ESi shall have no obligation for retaining or maintaining a copy of any such Client's Information or data from the Software following the date of expiration or termination of the Quotes, Statements of Work and Exhibits governing such information or(if sooner)the expiration or termination of this EULA and/or the Agreement. ESi shall be entitled, without further liability, to destroy all such Client's Information or data from the Software following the date of expiration or termination of the Quotes, Statements of Work and Exhibits governing such information or (if sooner) the expiration or termination of this EULA and/or the Agreement. 18.4 Other Termination/Sus ens ion of Services. In addition to all other remedies to which it may be entitled hereunder, ESi shall have the right,without notice to Client, to immediately suspend the provision of any and all Software and Services hereunder,including,without limitation,access to the Software and Support Services,in the event of(1)any breach orthreatened breach of this EULA and/or the Agreement or any Quotes, Statements of Work and Exhibits hereto by Client or its Users or contractors, (ii) any requirement or direction by any legal or regulatory body having jurisdiction over Client, ESi or its suppliers or third party service providers, or (iii) any change in taw that renders ESi provision of the Software unlawful or otherwise non- compliant with applicable law. Client's payment obligations shall continue during any period of suspension Confidential and Proprietary [CLEAN]Attch 1 -FULA 00613335 fnal 07.10.2019-COF edits 7,10.19.docx Page 8 of 22 pursuant to this Section where the suspension is due to the breach of the terms of the Agreement or this EULA by Client. Client agrees that ESi shall have no liability to Client, and Client waives any claim or action against ESi, in the event of termination of access to the Software as provided in this EULA and/or the Agreement where the suspension is due to the breach of the terms of the Agreement or this EULA by Client. ESi shall make reasonable efforts to restart such access upon Client's cure or correction of the event of default or breach unless it has already terminated this EULA and/or the Agreement or any Quotes, Statements of Work and Exhibits as provided hereunder. If Client receives Hosting Services from ESi, the following termination provisions also apply upon termination of this EULA and/or the Agreement for any reason: a. Client's access to the Hosting Services (including, without limitation, all access to the hosted environments and data)shall be suspended; b. Client shall immediately surrender to ESi any Internet protocol numbers, addresses or ESi-owned domain names assigned to Client in cennection with the Hosting Services delivered hereunder; c. Unless other arrangements are requested by Client within five (5) days of the effectnre date of termination and provided Client has paid all outstanding amounts due to ESi under this EULA and/or the Agreement, for the five (5) day period following the effective date of termination of this EULA and/or the Agreement ESi shall provide Client with eccess to its data or information within the Hosting Services for Client to download the Client data or information;and d. Any and all Client data shall be overwritten, erased,encrypted or otherwise rendered unrecognizable upon the sooner to occur of (i) Client's cenfirmation that I has downloaded the Client data or information, or(ii)expiration of the period of access as set forth in 18.4(c) above, or (ii) thirty (30) days from the effective date of termination of this EULA and/or the Agreement. 18.5 Omitted . 18.6 Survival. The provisions of this EULA and/or the Agreement that, by sense and context of the provision, are intended to survive performance by either or both parties shall also survive the completion, expiration,termination or cancellation of this EULA and/or the Agreement. 18.7 The termination of this EULA and/or the Agreement shall not relieve the Client of its obligation to pay any Charges and Fees incurred hereunder prior to the effective date of such termination or expiration. 19. Reserved. 20. Export Controls. Client acknowledges that the Software and Documentation are subject to United States export laws. Client shall not, nor shall Client authorize or permit its directors, employees, consultants, independent contractors or other persons, to export, re-export, disclose or otherwise provide the Software and/or Documentation to any country unless an appropriate license, exemption or authorization has been obtained from the U.S. Govemment. Client expressly agrees that Client shall not export, re-export, barter, or otherwise provide or disclose the Software and Documentation, in whole or in part,to:(a)any country covered by any United States trade embargo; (b)any person listed on the United States Department of Treasury's list of Specially Designated Nationals; (3) any person or entity listed on the United States Department of Commerce Denied Persons List;(4)any person or entity listed on the United States Department of Commerce Unverified or Entity Lists; (5) any person or entity listed on the United States Department of State Debarred List; or(6) any person or entity where such export, re-export, barter, disclosure or provision violates United State export control law or regulation. Client represents and warrants that neither it nor its directors, employees, consultants, nor any other persons or entities who may gain access to the Software and Documentation through the Client, are persons or entities subject to such U.S.export controls. Client agrees to defend, indemnify, and hold harmless ESi from and against any claim, loss, liability, damage or expense, including fines or legal fees incurred by ESi with respect to any of Client's export or re-export activities contrary to the foregoing instructions. 21. U.S. Government Rights. a. If Client is an agency, department, or other entity of the United States Government('Government"), or funded by the United States Government, Client's use, duplication, reproduction, release, modification, disclosure or transfer of the Software, Documentation,technical specifications, or any related materials of any kind, including technical data, is restricted in accordance with Federal Acquisition Regulation ('FAR') 12,212 for civilian agencies, Defense Federal Acquisition Regulation Supplement ("DFARS") 227.7202 for militery agencies and the equivalent regulations for the Department of Energy. The use of the Software and Documentation is further restricted in accordance with the terms of this EULA and/or the Agreement, or any modification thereto. b. The Software and Documentation are commercial computer software and commercial computer software documentation. Client shall ensure that each copy used or possessed by or for the Government is labeled with the following:"Manufacturer is ESi Acquisition,Inc.,235 Peachtree Street NE,Suite 2300,Atlanta, Confidential and Proprietary [CLEAN]Attch 1 -EULA 00613335 final 07.10.2019-COE edits 7,10.1g.docx Page 9 of 22 GA 30303. ALL RIGHTS RESERVED. PROPRIETARY PRODUCTS." For the purpose of any federal, state or local law,Client agrees that the Software and Documentation are trade secrets and proprietary commercial products of ESi and/or its third-party licensors and are not subject to disclosure. 22. General Terms and Conditions. a. Change in Subcontractors. ESi has the right to change, modify and otherwise convert services providers and subcontractors (including, without limitation, its affiliates) used to provide the Services and terms under which the Services are offered, provided that the basic functionality and quality of the Services will not be materially adversely affected. b. Interpretation. In the event of a conflict between this EULA and the terms of any Exhibit, Statement of Work or Ouote attached hereto, the terms of the Exhibit, Statement of Work or Quote shall prevail and control the interpretation of this EULA. The Agreement, the Exhibits, Statement of Work or Quote, attachments, and schedules together with this EULA shall be interpreted as a single document. c. Force M ale ure. Excluding payment obligations, no breach of any obligation of a party to this EULA, or the Agreement, or Exhibit, Statement of Work or Quote shall constitute an event of default or breach to the extent it arises out of a cause, existing or future, that is beyond the reasonable control and without negligence of the party otherwise chargeable with breach or default, including without limitation, flood, war,terrorists' acts, riot,theft, labor disputes, earthquake or natural disaster. Either party desiring to rely upon any of the foregoing as an excuse for non-performance, default or breach, shall, when the cause arises, give to the other party prompt notice of the facts that constitute such cause and when the cause ceases to exist, give prompt notice thereof to the other party. d. Independent Contractors. The parties are independent contractors, and no agency, partnership, franchise,joint venture or employment relationship is intended or created by this EULA or the Agreement. Neither party shall make any statement, representation, warranty or other commitment on behalf of the other party. e. No Implied Licenses. There are no implied licenses under this EULA or the Agreement. Neither party shall exceed the scope of the licenses granted hereunder. ESi reserves all rights not specifically granted to Client. f. Severability. If any provision herein is held to be invalid or unenforceable for any reason,the remaining provisions will continue in full force without being impaired or invalidated in any way. The parties agree to replace any invalid provision with a valid provision that most closely approximates the intent and economic effect of the invalid provision. g. No Third-Party Beneficiaries. ESi and Client agree that, except as otherwise expressly provided in this EULA or the Agreement, there shall be no third-party beneficiaries to this EULA or the Agreement. h. _Headings. The headings used in this EULA, the Agreement, Exhibits, Quotes and Statements of Work are solely for convenience and shall not be considered in its interpretation. i. Publicity/Use of Trademarks. ESi and Client herein agree to permit the occasional use of each other's name and logo as well as reference to this EULA and/or the Agreement and the System installation in their respective promotional advertising, press releases and public relations efforts. All such use will be only in a manner that reflects positively upon the other party and each such use shall be subject to the prior written agreement of the parties for each instance. ESi may, without obtaining Client's prior written consent, place Client's name on a list of ESi's customers/liconsees. j. Non-Solicitation. Client shall not, without ESi's prior written consent, directly or indirectly, solicit for employment or hire any Restricted Employee(as defined herein)while such person is employed by ESi and for the 12-month period starting on the earlier of: (1) termination of such Restricted Employee's employment with ESi, or (ii) termination or expiration of this EULA or the Agreement. 'Restricted Employee"means any former or current employee of ESi or its Affiliates that provided services on behalf of ESi hereunder or that Client became aware of or came into contact with during ESi's performance of its obligations under this EULA or the Agreement.This provision shall not apply in the case of an employee who responds to an open job listing posted by either party Confidential and Proprietary [CLEAN]Attch 1 -EULA 00613335 final 07 10.2018-CO edits 7.10.1g.docx Page 10 of 22 EXHIBIT A TO END USER LICENSE AGREEMENT 1 Term of the Software License The License to the Software set forth on this Exhibit A shall commence on the Effective Date of the Agreement and continue thereafter for an initial period of JhMe(3)years (the"Initial Period'). Thereafter,the License to the Software shall renew for two successive additional 12-month periods(each a`Renewal Period"), provided that either party may non-renew the License to the Software as of the end of the Initial Period or any subsequent Renewal Period, on not less than 60 days' prior written notice of non-renewal to other party. "Tenn"means tho Initial Period and any Renews! Period of the License to the Software as set forth herein. Any such non-renewal shall be effective as of the end of the Initial Period or subsequent Renewal Period, as applicable,following the expiration of such 60-day notice period. 2. Licensed Software Client has licensed the following Software: Number of Licensed Machines Software 1 ESi WebEOC®Software Professional,v8.6 Client also may install the Software to su ort"non-production"software development cycle activities: Number of Hosted Licensed Machines Purpose 0* Development/testing of Software Updates prior to placing it production internal use only) 0 Training internal use only) 0 Disaster Recove ' The parties hereby acknowledge that Client has a non-production license for purpose of development and testing of Software Updates prior to placing in production (internal use only)at Client's promises and Client is continuing to retain such non-production license. Such non-production license shall be subject to this terms and conditions of this EULA as set forth herein as applicable to an on-premise license. 3. Authorized Number of Users Client may provide access to the following number of Administrators and Users: User Type Qty of Users Administrators—per named user 12 Users—per named user 250 Jinclusive of Administrators 4. Surue Capacity Plan Surge Capacity Plan has been purchased for term: [X] Yes [ ] No 5. Emergency Response Program Client has enrolled in the Emergency Response Program: [ ] Yes [X] No Confidential and Proprietary [CLEAN]Attch 1 -EUTA 00613335 final 07 10,2019-COF edits 7.10.19.docx Page 11 of 22 EXHIBIT B TO END USER LICENSE AGREEMENT OESCRIPTION OF SUPPORT SERVICES FOR THE SOFTWARE Support Services for the Software shall include the following(in addition to what is stated in the EULA): 1} Tele hone Assistance:Client's Support Contact(as defined below)may contact the ESi's Support Center for telephone assistance to seek advice relating to the use of Hosting Services and/or to identify and work to provide a "workaround" for Software problems, if available. Telephone assistance for non-Emergency Support Services shall be available during Standard Business Hours. 2) Problem Assistance: Client may submit problem assislance requests for Software assistance via [he published FSi's support escalation procedures. ESi will notify Client if any request is beyond the scope of this FULA and is,therefore, subject to additional charges. Requests for problem assistance for non-Emergency Support Services shall be available during Standard Business Hours. 311 SoftwareUyclalra:ESi will updalo the Software as such updates and future versions of the applicable Software are made generally available to o[her ESi customersllicensees receiving Support Services at no additional charge. Any training required by Client related to such Software Updalas and subsequent versions of[he Software are provided for an additional charge. ESi shall provide Client with downloadable Software Updates to the Software, except for modules, as such Software Updates become available. Software Updates may include correction releases (i.e, patches provided to correct software anomalies), point releases(i.e. mod cations to current generation of software including enhancement and improvements),and level releases(i.e.new releases or new generation of Softwere),but shalt not include new products,modules or plug-ins released commercially by ESi as independently priced items. For Modules, ESi shall provide Client any Software Updates released by ESi to correct errors affecting the operation of the Module, whether such error is caused by [he Module itself or by an error in the Software, and any Software Updates required to maintain compatibility with the Software. FSi shall not provide for any enhancements to[he Module. Process to Obtain Support Services. To obtain Support Services or lslephone or problem assislance, Client's designated Support Contact(who has completed the training as required below)may contact ESi's Support Center as per ESi's published support procedures. Such support procedures include contacting ESI's Support Center via telephone,email and,when required,remote session support during Standard Business Hours and during Non-Standard Business Hours- "Routine"Support Services includes assislance with[he use and configuration of[he software; assistance with identification and resolution of errors or defects assistance with application and use of new releases;general support for Board Builder and boards built by client, ESi or an ESi-certified technician; and access to WebEOC best practices, community-use status boards, "help" resources and other content made available [hrough hthz:lhvwv iLivare,co lcustomersltechnical-su ,o , a `Licensee only' web forum. Support Services may be acceasad by Client by calling [he Support Center via(877)771-0911 or by electronic mail at support(o�iuvare.coru(subject to updates and changes by ESi). 'Emergency" Support Services shall be available 24 hours per day, 365 days per year. Emergency telephone support includes any assistance needed by Client while Software is in use operationally,whether for actual incidents or exercises excluding assistance with G I S interfaces, mapping or products,which is licensed by a third-party vendor is available only during Standard Business Hours.Emergency Support Services may be accessed by calling [he Support Center via(877)771-0911 (subject to updates and changes by ESi). Client may request performance of additional services by ESi. Such services shall be invoiced separately by ESi at ESi's then current rata for such services and Travel Expenses, if applicable. Limitations on Support ServiM. ESi will provide Support Services for only the current version of any Software. Client is obligated to promptly implement all Software Updates,work arounds and error corrections provided by ESi. Rroblems or Issues Not Covered by Support Services. The following issues/problems, and all issues or problems caused by the following,are not covered by Support Services: 1.Alterations to[he Software not au[horized by E.Si, 2. Software problems crealad by Client negligence or fault or failure to comply with any specifications, policies, procedures or requirements for use of the Software, including,wilhout limitation, [hose set forth in ESi's Acceptance Use Policy and Privacy Policy; 3. Software problems caused by or related to a change in Client's service provider or inte met access provider. Wi[hout limiting the generality ofthe foregoing,no reconfiguration of the Software due to a change in a service provider is covered under Support Services- Client should notify ESi prior to changing its service provider to enable ESi to provide configuration specifications to[he new service provider. Any programming and configuration changes will be charged to Client at the [hen-current ESi's dailylhoudy rates for such reconfiguration services; 4.Software problems that dc>not significantly impair or affect the operation of the Software; 5.Assistanco with third party products;Training; Installation of plug-ins,boards or modules;API support;Board building; and 6.Client's failure to allow for the prompt implementation of Error corrections, Software updates, or any work-around provided or made available by ESi(including,wilhout limitation and applicable at all times,implementation of more recently released,generally availabla versions or releases of the Software made available through Support Services that contain corrections to[he relevant Error or where such Error does not occur when using such more recently released version or release of the Software). Client Responsibilities. Chard agrees to limit its requests for Support Services after Standard Business Hours to occasions when the problem related to[he Software is critical to Client's operation and cannot wait to be addressed until Standard Business Hours on the next succeeding Contractor business day Confidential and proprietary [CLEAN]Attch 1 -FULA OO613335 final 07.10.2019-COF edits 7.10.19.docx Page 12 of 22 EXHIBIT C TO END USER LICENSE AGREEMENT FEES AND PAYMENT SCHEDULE FURTHER TO QUOTE#00014526 WebEOC Software, Hosting, Support Services and Migration Services Product Code Item Description Year 1 Fees ASP Hosting -WebEOC®-Annual (up to 250 users) ASP-WebEOC-250 $8,635.00 ASP Hosting-WebEOC®Maps Add-On-Annual ASP-Maps-ADD $4,345.00 ASP-RRDM ASP Hosting-WebEOC®RRDM-Annual $1,320.00 WebEOC Software Support Services SS-WEBEOC-EX $10,900.00 SS-MPR-ADD(P) WebEOCO Maps Add-On Software Support Services $4,290.00 SS-CIMS7-RRDM Resource Request and Deployment Module Care Plan (UP) $3,600.00 TS-SOL-PRJC Solutions Services Project Migrate current Client Hosted WebEOC instance to Juvare Hosting $8,750.00 Total Fees for ASP Hosting of the ESi WebEOC Software and Migration Services $41,840.00 (plus applicable taxes) Payment Terms For purposes of this Exhibit C, ESi shall invoice, and Client shall pay, the amounts set forth below according to below payment schedule: (i) The "Total Fees for ASP Hosting of the ESi WebEOC Software for Year 1 and Migration Services" set forth above of$41,840.00 USD (plus applicable taxes)shall be invoiced by ESi to Client upon ESi's receipt of the Agreement(executed by Client); (k) Subsequerd annual charges for each Renewal Period shall be invoiced by ESi to Client so that such amounts are due and payable prior to the commencement of each Renewal Period;and (iii) Client shall reimburse ESi for all travel, lodging, per diem and out of pocket expenses ("Travel Expenses") incurred by ESi personnel in the performance of services hereunder. All Travel Expenses will be invoiced to Client at actual cost(including associated travel agent and other service fees) and applicable per diems as such services are performed and such costs are incurred. All charges in this Exhibit C are exclusive of taxes and Travel Expenses incurred by ESi in the performance of services and are in addition to any charges set forth in any other Statement of Works or Addenda or Quotes to the EULA or in the Agreement. All invoices are due and payable forty-five(45)days from the date of the invoice. If Client is tax exempt, Client shall be responsible for providing all necessary documentation to show such tax-exempt status to ESi or to the taxing entity. Work cannot be started and dates for services cannot be secured until the applicable initial payment has been received by ESi. Confidential and Proprietary [CLEAN)Attch 1 -EULA 00613335 final 07 10.2019-COF edits 7.10.19.docx Page 13 of 22 Pricing contained herein is based on configuration outlined above. Some items may not be sold separately. Pricing is valid for 90 days from the date of Quote date. Notwithstanding anything to the contrary in this Exhibit C and the Agreement, Client has one hundred and twenty(120) days from execution of this Agreement by Client to permit ESi to perform the migration services as set forth above. Should Client fail to permit ESi to perform the migration services as set forth above within such 120-day period, all unpaid amounts set forth above shall be immediately due and payable by Client to ESi and the implementation shall be deemed complete as of the end of such 120-day period. Client may then provide ESi written notice when Client is ready to permit ESi to perform the migration services as set forth above. ESi shall not have any obligations for warranties applicable to the Software and services provided hereunder, and Support Services for such Software, shall not apply to issues experienced by Client,to the extent caused by Client's use of such Software prior to ESi's completion of the migration services as set forth above. Confidential and Proprietary [CLEAN]Attch 1 -EULA 0061333b final 07 10,2019-COF edits 7.10.19.docx Page 14 of 22 EXHIBIT D TO END USER LICENSE AGREEMENT HOSTING SERVICES 1. Definitions. For the purposes of this Exhibit,the following words have the meaning set forth below: a. 'Application Service Provider" means an entity that maintains a shared hardware environment for the purpose of hosting and maintaining software and data on behalf of customers. b. "Hosted System" means the combination of hardware, software and networking components used by the Application Service Provider to deliver the Hosting Services. c. "Hosting Services" means the installation and management of specified software applications by an Application Service Provider in a shared environment on behalf of a customer and exclusively for the benefit of permitted users of the Software. All other capitalized terms in this Exhibit D shall have the same meaning set forth in the EULA,except where otherwise stated in this Exhibit. 2. Scope of Services. ESi shall provide the following services to address the Software hosting needs: a. ESi, acting as an Application Service Provider, shall provide Hosting Services to Client according to the provisions set forth in the EULA. ESi shall notify Client promptly upon creation of Hosting Services account and provide Client with all information required to access such account. ESi,at its sole discretion, may provide and maintain such Hosted System and/or deliver such Hosting Services internally or through a qualified subcontractor. b. ESi shall provide and maintain the facilities,hardware,and networking components as it sees fit to operate a high-availability, shared ASP Environment for the benefit of Client. c. ESi shall perform, at its convenience and after notice to Client, scheduled updates of the hosting environment as ESi or its hosting subcontractor sees fit. Such updates shall be scheduled to enable the simultaneous update to all of ESi-hosted customers. d. ESi shall perform, as needed, emergency security updates to the Hosted System to protect the ASP Environment from newly identified and widespread threats to the intemet or intemet-based services posed by worms, viruses and Trojans,or to address other vulnerabilities,with little or no notice to Client. e. ESi shall provide and maintain a redundant ASP Environment at a location that is geographically separated from its primary ASP Environment to ensure continuity of Software access and operation in the event of any unforeseen outage,disaster or other event that may interrupt service at the primary location. Failover to the redundant ASP Environment is a manual process and service will be activated by ESi immediately upon notification of malfunction, unavailability orfailure of primary ASP Environment. f. ESi will notify (via ESi's Support Center) Client of any planned service outages, i.e., for the purpose of performing Software updates or testing,or other inability to perform the services outlined in the EULA. g. ESi shall schedule, perform and maintain a duplicate("backup")record of Client's data. ESi shall perforrn hourly SQL transaction log backups and daily full backups. Data backups are limited to SQL database server files (i.e., those files having a .mdf or.Idf file extension). Data backups shall be retained on-site for four weeks. h. In addition to the Support Services pursuant to the EULA and Exhibit B, ESi shall provide Client with Support Services for the Hosting Services which include assistance with problems related to ASP Environment, data access, Hosted System access, or similar problems. Such Support Services for the Hosting Services may be accessible to Client via the same contact information provided to Client for Support Services; provided, however, services to be provided by ESi under this Exhibit D and the EULA do not include assistance with third party products;training; installation of piug-ins, boards or modules; API support;or board building;or maintenance, repair or correction of errors,defects or other operational or performance defects caused by Software configuration, modification, enhancement or programming provided by any party other than ESi or an ESi-certified technician. Any professional services described in this Section 2(h),orservices required to repair or correct the errors and defects described in this Section 2(h), shall be provided on a fee-for-services basis at rates consistent with the ESi published price list in effect at the time services are rendered. i. Client may request performance of additional services by ESi. Such services shall be invoiced separately by FSi at the current published rate for labor and actual costs for materials and travel, if applicable. 3. Client Obligations a. The Client shall maintain, at Client's expense, a secure high-speed intemet connection through which to access its hosted Software. b. The Client shall appoint a designated point of contact and two altem ate points of contact for its interactions with ESi. Client shall provide ESi with the name,job title, physical address,telephone number, facsimile number and electronic mail address for each of the contact persons. Client shall keep such contact information up-to-date and promptly notify ESi, in writing via electronic mail, of any changes. Confidential and Proprietary [CLEAN]Attch 1 -EULA 00613335 final 07.10.2019-COF edits 7,1D.1g.docx Page 15 of 22 c. The Client shall use reasonable security precautions in connection with the use of Services provided under this Agreement. d. The Client is responsible for any and all use and access to the Hosted System and Hosting Services by its employees, agents, contractors and permitted users of the Software and Hosting Services. e. The Client shall make best efforts to notify ESi in writing, via electronic mail or facsimile, of any planned non-emergency use of its Software, such as the occurrence of training sessions, drills and exercises, to aid ESi with the planning of any scheduled outages. f. The Client shall promptly notify ESi Support Center of any identified Hosting Services outage that impairs Client's access to the Software so that ESi may manually activate the redundant ASP Environment and immediately commence worts to restore service to the primary ASP Environment. b. The Client shall not conduct any load testing, performance testing or any other test of the Hested System which may degrade performance or Ilmit or adversely impact availability of the ASP Environment for other customers. 4. Limitations on Use of Hosting Services. a. Access to the Hosted System may not be rented, leased, sold, sub-leased, assigned or otherwise transferred for value or for no value by Client Lo any third party. b. Hosted System and Hosting Services are provided to support the Software which is an information management tool. Hosting Services are not guaranteed to be fault-tolerant or to provide fail-safe performance. Hosting Services are not appropriate for use in ultra-hazardous environments where failure of the Hosted System or ASP Environment may lead to bodily injury, death or destruction of property. c. Installation of software applications in ASP Environment is limited to the Software licensed to Client by ESi and Software supplied by ESi either as a component of the Hosted System or to support delivery of Hosting Services. d. ESi shall only be responsible for performance of components of the Hosted System and Services under its control. ESi shall not be responsible for performance doficiencies caused by processes, hardware and software beyond its control including, but not limited to, information transmission delays due to excessive internet traffic, internet outages,or failure of Client to perform iIs obligations under this Agreement. e. The warranties set forth in the Agreement shall be void if any breach of this warranty or failure of the hosting environment or Software is caused by unauthorized use, improper use or modification to Software made by Client or its authorized users. Confidential and Proprietary [CLEAN]Attch 1 -EULA 00613335 fnal 07 10.2019-COE edits 7.10.19.docx Page 16 of 22 EXHIBIT E TO END USER LICENSE AGREEMENT STATEMENT OF WORK 20190412 This Statement of Worts ("SOW") is governed by, incorporated into, and supplements that certain End User License Agreement("Agreement ). This SOW shall be subject in all respects to the terms of the Agreement. In the event of any conflict between the terms of this SOW and the Agreement, the terms of this SOW shall govern for purposes of this SOW and the Services (as defined below) provided hereunder. 1.0 Services Overview ESi will provide Client with services needed to assist Client with the migration of its current, locally hosted WebEOC system to ESi's ASP hosting infrastructure(the "Services"), as further defined in Section 2.0 of this SOW. 2.0 WebEOC`'Migration to ASP Hosting ESi will provide the following services to assist Client with the migration of Client's current locally hosted WebEOC system to ESi's ASP hosting service: 2.1 ESi will setup a new ASP hosted instance of WebEOC version 8.6 for Client on ESi's ASP hosting infrastructure. The following modules will be installed and configured as part of this effort: 2.1.1 Maps Add-On 2.1.2 RRDM 2.1.3 Single Sign-On (SAML based) As part of this effort, ESi will worts with Client to establish a mutually agreeable URL(e.g. httiis:/ffresnoes.webeocasil.com) for use and deployment of Client's migrated WebEOC system. 2.2 ESi will work with Client's IT personnel to copy and migrate Client's current locally hosted WebEOC data base to Client's ASP hosted WebEOC instance. 2.2.1 Client is responsible for creating a physical backup of its current WebEOC database; 2.2.2 ESi will work with Client IT personnel to transfer the backup copy of Client's WebEOC data base to ESi for processing; 2.2.3 ESi will load and migrate the backup copy of Client's data base into the newly installed and configured ASP hosted WebEOC instance. 3.0 Assumptions a) Client is not using Browser Compatibility Mode. b) Client can access Zoom Video or similar web conferencing tool for any remote meetings and validation. c) Client will provide a named Project Manager who will serve as the primary point of contact("Client POC")for ongoing project planning and project communications efforts. Project Manager Name: Phone number: Email: d) Client will sign ESi's Implementation Completion Form, provided by ESi to Client, within 14 days of the completion of the Services by ESi. e) The Services provided by ESi under this SOW shall be conducted during Standard Business Hours (as defined in the EULA)at the Fees set forth in this SOW (any Services that the parties agree will be provided outside Standard Business Hours shall be subject to additional charges unless otherwise stated herein). Confidential and Proprietary ICLFANt AMh 1 -FULA 00613335 final 07.10.2019-COF edits 7.10.19.docx Page 17 of 22 f) Scheduling of resources and Services will be provided upon receipt of this signed SOW and, if required, a valid purchase order. The dates for the performance of all Services hereunder are subject to mutual written agreement of the parties. g) If Client requests that the project to be delayed for more than thirty(30)calendar days once project schedule has been agreed upon, Client must notify ESi in writing of such request. When Client is ready to reengage on project, written notice must be provided to ESi. All project resources will be unassigned from the project at the time project is put on hold. At time of reengagement, ESi will work with Client to determine a new, mutually agreeable project schedule. The original ESi project team is not guaranteed to be available for the new project schedule. h} On-site Services by ESi resources are not planned or expected for purposes of this SOW. All Travel Expenses incurred by ESi in the performance of Services hereunder shall be paid by Client to ESi, shall be invoiced by ESi on a monthly basis as incurred, and are due and payable by Client consistent with the terms applicable to other invoices pursuant to this SOW and the Agreement. i) ESi shall not be obligated to provide any Services hereunder on or after one(1)year from the SOW Effective Date. ESi will provide not more than twenty-four(24)man hours of labor assistance under this SOW. Any unused man hours of Services purchased by Client pursuant to this SOW will not be carried forward or available for use under other statements of work with ESi, and no paid amounts will be refunded. A change request may be used to extend these Services prior to the expiration date; provided, however, such change request is not enforceable unless and until executed by both parties. j) Client shall provide ESi with remote access to the Software thereto as a condition to the provision of all Services hereunder. k) No new Software licenses shall be provided pursuant to this SOW. 1) Client is responsible for the dissemination or modification of process documentation. m) Any additional man hours of Services required to be performed by ESi as a result of Client's failure to comply with its obligations hereunder, Client delays, or Client increases in the scope of Services under this SOW shall be invoiced to Client at ESi's then current rate for such Services (and such charges are in addition to the charges set forth below). All invoiced charges are due and payable pursuant to the payment terms set forth in this SOW (or, if none, then the terms of the Agreement). 4.0 Services Engagement Your ESi Project Manager will engage as follows: 4.1 Upon receipt of the purchase order from Client, the ESi Project Manager will contact the Client POC to schedule a project kick-off call and schedule the dates for the Services (if onsite Services are required, such onsite Services and travel arrangements will be coordinated by the ESi Project Manager with the Client POC). 4.2 Any project related calls will be scheduled through the ESi Project Managerwith the Client POC. 4.3 The ESi Project Manager will provide the Client POC with the overall project timeline and provide email status updates. 4.4 ESi will assign resources to the proposed project as soon as practical once the project contracting process has been completed by both Client and ESi. 4.5 Once the implementation is complete the ESi Project Manager will coordinate a closeout call with the Client POC to finalize the engagement and send the Implementation Completion Form for signature by Client. 5.0 Delivery Services will be deemed delivered twenty-four (24) hours after completion of the Services. Client will have fourteen (14) calendar days from receipt to review and identity defects. ESi shall perform the Services in a professional and workmanlike manner. Provided that Client provides ESi with written notice within fourteen (14) days' of the date of performance of Services that fail to comply Confidential and Proprietary [CLEAN]Attch 1 -EULA 00613335 final 07.10.2019-COF edits 7.10.1g.docx Page 18 of 22 with the foregoing, ESi shall re-perform such Services in compliance with this SOW at no additional charge; provided, however, delays or changes in scope will incur additional man hours of services by ESi and such additional man hours of services shall be invoiced as set forth in this SOW. The remedies in this Section 5.0 shall be Client's sole and exclusive remedy, and ESi's entire liability, for any failure of any Services to comply with this Section 5.0. 6.0 Deliverables 6.1 The following Deliverable(s) (as defined below)are required as part of this Statement of Work. a) ASP hosted WebEOC instance; b) Migrated WebEOC data base; and c) No other Deliverables. 7.0 Charges ESi's fixed price, fixed scope fees (the "Fees") for this effort is $8,750.00 USD (plus applicable taxes). All charges set forth above are exclusive of taxes,which shall be in addition to the set forth above and Client agrees to pay all taxes applicable to the provision of all Services hereunder. Additional charges, if any, under this SOW are set forth in Section 8 below. All charges, fees, and taxes are due and payable to ESi by Client pursuant to the terms of Section 8 below. 8.0 Invoicing and Payment Terms All Services under this SOW shall be charged to Client and paid by Client according to the following additional terms and conditions: a) The Fees are due and payable by Client to ESi as set forth in Exhibit C to the EULA; b) The charges (plus taxes) for man hours of Services performed by ESi under this SOW in outside Standard Business Hours, additional man hours of Services provided by ESi resulting from Client delays, and resulting from increases/changes in the scope of Services under this SOW shall be charged to Client as follows: (a)$250.00 per man hour(plus taxes)if performed during Standard Business Hours, and (b) $375.00 per man hour (plus taxes) if performed outside Standard Business Hours. These charges are in addition to any other charges payable under this SOW. Invoices for man hours of Services under this Section (b) shall be invoiced by ESi to Client on a monthly basis as performed by ESI; and c) Travel Expenses, where applicable, shall be invoiced by ESi to Client on a monthly basis as incurred by ESi. All invoices pursuant to this SOW (including, without limitation, invoices for Travel Expenses and taxes)are due and payable by Client to ESi within forty-five (45) days of the date of ESi's invoice. 9.0 Additional Terms and Conditions a) This SOW is valid for 90 days from the SOW Effective Date. b) Requests for modifications to this SOW after the Agreement with this SOW attached (executed by Client) has been received by ESi will require a written change order similar to the Appendix A attached hereto and executed by both parties. Significant changes in scope may require a new or revised SOW, as well as additional expenses. c) Receipt of the Agreement with this SOW attached (executed by Client) by ESi authorizes work to begin. d) Client requests to reschedule the Services once scheduled by ESi are subject to a $500.00 USD rescheduling fee in addition to any non-refundable Travel Expenses incurred by ESi. Rescheduling will be subject to ESi's standard scheduling policies based upon available resources. e) Nothing contained herein obligates either party to enter into engagements beyond that stated herein. Confidential and Propdelary [CLEAN]Atich 9 -FULA 00613335 final 07 M2019-COF edits 7.10A9.docx Page 19 of 22 f) Notwithstanding participation by members of the Client's user community in requirements development, payment or other project activities, Client rights and obligations under the Agreement may not be transferred or assigned. g) This SOW, the Agreement, and any mutually agreed upon change order(s), set forth the entire agreement of Client and ESi with respect to the Service and the Deliverables, if any,to be provided by ESi hereunder and supersede any and all oral or written agreements or understandings between the parties, as to the subject matter of this SOW and the Agreement. h) CLIENT EXECUTION OF AGREEMENT WITH THIS SOW ATTACHED INITIATES SCHEDULING OF THE SERVICES HEREIN.ACTUAL START TIME WILL BE SUPPLIED AFTER SCHEDULING IS DETERMINED. CANCELLATIONS (IF AGREED UPON) WILL INCUR SERVICES PERFORMED AND TRAVEL EXPENSES INCURRED TO DATE. Confidential and Proprietary [CLEAN]Attch 1 -EULA 00613335 final 07.10.2019-COF edits 7.10.19.docx Page 20 of 22 APPENDIX A - Change Order Change Change Description of Requestor Date Date Status ChangeNumber Type Submitted Approved Special Notes or Comments ESi Approvals Approved Signature Date (Yes/No) ESi ES! 1 Client Approvals Approved Signature Date (Yes/No) Position Position Confidential and Proprietary [CLEAN]Atich 1 -EULA 00613335 final 07.10.2418-COF edits 7.10.18.docx Page 21 of 22 EXHIBIT F TO END USER LICENSE AGREEMENT Consulting Services Rates As of the Effective Date of the Agreement, the following Consulting Services are available for purchase by Client from ESi at the man hourly rates set forth below: Pubtic Sector Price List for Consultln g Services Man Hour[Daily Rate in Product ID Consulting Service USD" TS-DEVD Developer, daily rate $1,480.00 TS-DEVH Developer, hourly rate $185.00 TS-PMD Project Management, daily rate $2,000.00 TS-PMH Project Management, hourly rate $250.00 TS-SCD Senior Consultant, daily rate $2,800.00 TS-SCH Senior Consultant, hourly rate $350.00 TS-SDD Senior Developer, daily rate $2,000.00 TS-SDH Senior Developer, hourly rate $250.00 TS-SIMD Solution Implementation Manager(SIM), daily rate $2.000.00 TS-SIMH Solution Implementation Manager(SIM), hourly rate $250.00 TS-DOCUM- Technical Writer/Documentation Development $185.00 ES TN-DR Training, daily rate $2,000.00 TN-TDH Training Development, hourly rate $250,00 ESi shall be, in its sole discretion, entitled to increase the hourly or daily rate upon thirty(30)days prior written notice to Client, provided that ESi shall not increase such fees more than once in any one(1)year period and provided further that each increase during the Initial Term of the EULA will not exceed the previous fees by the lesser of three percent (3%)per year or the cumulative percentage increase in the Consumer Price Index, All Urban Consumers for the U.S., during the previous year Confidential and Proprietary [CLEAN]Attch 1 -EULA 0 06133 35 final 07 1D.2019-CO edits 7.10.19.docx Page 22 of 22 1 Attachment 2 to Agreement 2 RESPONSE TIME OBJECTIVES 3 Capitalized terms not defined in this Attachment shall mean as set forth in the Agreement or in the Attachment 1 — EULA to the Agreement. 4 1. Issues with the Hosted System in the"Juvare Cloud"or the System Software reported by COUNTY to the Juvare 5 Support Center as provided below will be assigned a severity level by CONTRACTOR according to the description in the following table. CONTRACTOR will respond to COUNTY's Notification (as defined below) to the Juvare 6 Support Center as provided in the table below. All Severity 1, 2, and 3 issues must be reported to Juvare Support Center by telephone at the appropdate numbers published to COUNTY as part of the CONTRACTOR published 7 escalation procedures. All other Errors can be reported via telephone or by email as provided in such published 8 escalation procedures. Severity Level Initial Response Objective Follow up Response Objective 9 10 Severity 1 Acknowledgement within one (1) Delivery by CONTRACTOR of a patch, hour of receiving Notification. workaround, or temporary fix to COUNTY 11 within one (1) business day. Delivery by CONTRACTOR of the object code fix or other permanent fix and revised 12 documentation to COUNTY within ten (10) business days. 13 everity 2 Acknowledgement within four (4) Delivery by CONTRACTOR of a patch, 14 hours of receiving Notification. workaround, or temporary fix to COUNTY within three(3) business days. Delivery by 15 CONTRACTOR of the object code fix or other permanent fix and revised 16 documentation to COUNTY within twenty (20)business days. 17 Severity 3 Acknowledgement within eight (8) Delivery by CONTRACTOR of a patch, hours of receiving Notification workaround, or temporary fix to COUNTY 18 during Standard Business Hours. within ten (10) business days. Delivery by CONTRACTOR of the object code fix or 19 other permanent fix and revised documentation to COUNTY within forty-five 20 (45)business days. 21 Severity 4 Acknowfedgement within three (3) Delivery by CONTRACTOR of a patch, business days of receiving workaround, or temporary fix to COUNTY 22 Notification during Standard within thirty(30)business days. Delivery by Business Hours. CONTRACTOR of the object code fix or other permanent fix and revised 23 documentation to COUNTY as appropriate. 24 25 Severity levels are defined as follows: 26 Severity 1 Critical System Outage: COUNTY has lost complete use of the Hosted System or System Software or use of the Hosted System or System Software is materially and severely impaired. 27 28 -29- 1 Severity 2 Critical System Degradation: an intermittent interruption in or loss of COUNTY use of the Hosted System or System Software, or significantly diminished System Software functionality(i.e., results 2 in or is likely to result in more than a ten percent(10%) productivity loss). 3 Severity 3 Minor System Degradation: Minor loss of Hosted System or System Software functionality (i.e., results in or is likely to result in inability to use certain non-essential functions of the System 4 Software). 5 Severity 4 Minor System Degradation: All other errors not classified as Severity 1, 2, or 3 where there is limited impact on the Hosted System or System Software functionality. 6 7 Errors that do not arise to the level of one of the Severity Levels defined above shall be addressed and resolved as determined by CONTRACTOR. 8 2. "Error" shall mean a failure of the Hosted System or System Software to perform in accordance with the 9 Agreement, Software Documentation and specifications applicable thereto in all material respects. Errors may be "resolved" using reasonable temporary workarounds, provided any loss of functionality resulting from such 10 workaround will be subject to other applicable severity level classifications. COUNTY is not entitled to reject or 11 refuse a reasonable workaround or fix provided by CONTRACTOR to resolve and issue. 3. "Notification"shall mean the receipt of a telephone report by the Juvare Support Center from COUNTY(meaning 12 COUNTY speaks with the Support Center) at the then current telephone numbers (and applicable Support Center 13 escalation procedures) for the Juvare Support Center, as provided by CONTRACTOR. Failure to follow the CONTRACTOR published contact information (and applicable Support Center escalation procedures, including 14 COUNTY escalating such matters where matters are not being resolved in a timely manner)for the Juvare Support Center shall void the response time objectives and obligations of CONTRACTOR set forth in this Attachment. The 15 °initial response objective" shall be deemed satisfied where the initial response to a Notification is provided to the COUNTY by the Juvare Support Center during the COUNTY call providing the applicable Notification. 16 4. CONTRACTOR will not be responsible for any Errors related to or caused by(i)negligence or fault by COU NTY 17 or COUNTY's employees, (sub)contractors, affiliates, or agents when using or accessing the Hosted System or System Software, (ii) any version of the System Software other than those for which CONTRACTOR is obligated 18 to provide Support Services, (iii)failure to implement or utilize any work-around/error corrections provided or made available by CONTRACTOR(COUNTY's obligation to implement such work-around/error corrections shall include 19 the implementation of more recently released, generally available versions or releases of the System Software made available to COUNTY through Support Services that contain corrections to the relevant Error or where such 20 Error does not occur when using such more recently released version or release of the Software), (iv) related to (or a change in) services providers related to COUNTY's access to or use of the Hosted System or System 21 Software, (v)any equipment, hardware or software outside CONTRACTOR'S Juvare Cloud orthe Hosted System, including, without limitation, COUNTY equipment, hardware, and software, (vi) COUNTY's provision/use of 22 corrupted data to the Hosted System or System Software, (vii) COUNTY's failure to use the Hosted System or System Software in compliance with the Agreement, Documentation (including requirements of usage set forth in 23 any applicable specifications therein), (viii) any unforeseen change, modification, or addition by COUNTY to the COUNTY's environment,the Juvare Cloud (including, without limitation, changes to the data, hardware, networks, 24 software, or systems that interface with or on which the Juvare Cloud is dependent) not previously approved in writing by CONTRACTOR pursuant to CONTRACTOR'S then current change control procedures for changes to 25 COUNTY's environment or data that may impact COUNTY's usage of the Hosted System or System Software, or (ix)otherwise caused by items disclaimed in the Agreement or the EULA. 26 27 28 -30- Attachment A SELF-DEALJNG TRANSACTION DISCLOSURE FORM in order to conduct business with the County of Fresno (hereinafter referred to as "County"), members of a contractors board of directors (hereinafter referred to as "County Contractor"), must disclose any self-dealing transactions that they are a party to while providing goods, performing services, or both for the County. A self-dealing transaction is defined below: "A self-deaNng transaction means a transaction to which the corporation is a party and in which one or more of its directors has a material financial interest" The definition above will be utilized for purposes of completing this disclosure form. IN5TRUCTIONS (1) Enter board m ern ber's name,job title (if applicable), and date this disclosure is being made. (2) Enter the board member's company/agency name and address. (3) Describe in detail the nature of the self-dealing transaction that is being disclosed to the County. At a minimum, include a description of the following: a. The name of the agency/company with which the corporation has the transaction; and b. The nature of the material financial interest in the Corporation's transaction that the board member has. (4) Describe in detail why the self-dealing transaction is appropriate based on applicable provisions of the Corporations Code. (5) Form must be signed by the board member that is involved in the self-dealing transaction described in Sections (3) and (4). Attachment A (1)Company Board Member Information: Name: Date: Job Title: (2)Company/Agency Name and Address: (3) Disclosure(Please describe the nature of the Self-dealing transaction you are a party to): NIA- (4) Explain why this self-dealing transaction is consistent with the requirements of Corporations Code 5233(a): (5)Authorized Slgrjature Signature: i Date: