|
ZOLL Data Systems, Inc. Sales Order #:
<br />MASTER SOFTWARE LICENSE AGREEMENT
<br />import fees, customs duties and similar charges. When applicable, ZOLL may include any taxes that it is required to collect as a separate line item on an invoice.
<br />6.6 Audit Rights. Upon 30 days written notice, ZOLL will have the right, during normal business hours, to have an independent audit firm inspect Customer's records relating to
<br />Customer's use of the Software to ensure it is in compliance with the terms of this MSLA. The costs of the audit will be paid by ZOLL, unless the audit reveals that Customer's
<br />underpayment of Fees exceeds 5 %. Customer will promptly pay to ZOLL any amounts shown by any such audit to be owing (which shall be calculated at ZOLL's standard,
<br />non - discounted rates) plus interest as provided in Section6.4 above. Such audits will be conducted no more than once in any period of 12 consecutive months.
<br />6.7 Third Party Fees. Customer is solely responsible for, and none of the fees set forth herein, shall be deemed to cover any amounts owed to third parties in connection with the use
<br />of the Software, including without limitation, clearinghouse fees.
<br />7. WARRANTIES.
<br />7.1 Performance. Subject to Customer's payment of the Software Fees, for a period of 90 days after the Deployment Date (the "Software Warranty Period "), ZOLL warrants that
<br />the Software, when installed by ZOLL and used as permitted and in accordance with the instructions in the Documentation, will operate substantially as described in the Documentation.
<br />ZOLL does not warrant the Customer's use of the Software will be error -free or uninterrupted. ZOLL will, at its own expense and as its sole obligation and Customer's exclusive remedy
<br />for any breach of this warranty, use commercially reasonable efforts to correct any reproducible error in the Software reported to ZOLL by Customer in writing (including e-mail) during
<br />the Software Warranty Period. Any such error correction provided to Customer will not extend the original Software Warranty Period.
<br />7.2 Services. ZOLL warrants that any Services provided to Customer will be performed with due care in a professional and workmanlike manner. ZOLL shall, as its sole obligation
<br />and Customer's sole and exclusive remedy for any breach of the warranty set forth in this Section7.2, re- perform the Services which gave rise to the breach or, at ZOLL's option, refund
<br />the Services Fees paid by Customer for the Services which gave rise to the breach; provided that Customer notify ZOLL in writing (including e-mail) of the breach within 30 days
<br />following performance of the defective Services, specifying the breach in reasonable detail.
<br />7.3 Disclaimers. The express warranties in this Section7 are in lieu of all other warranties, express, implied, or statutory, regarding the Software, Services and Maintenance Services,
<br />and ZOLL expressly disclaims all other warranties, including any warranties of merchantability, fitness for a particular purpose, title, and non - infringement of third party rights.
<br />Customer acknowledges that it has relied on no warranties other than the express warranties provided herein and that no warranties are made herein by any of ZOLL's suppliers.
<br />8. INFRINGEMENT CLAIMS. ZOLL will defend at its own expense any action against Customer brought by a third party alleging that the Software infringes any U.S. patents or
<br />any copyrights or misappropriates any trade secrets of a third party, and ZOLL will pay those costs and damages finally awarded against Customer in any such action that are specifically
<br />attributable to such claim or those costs and damages agreed to in a monetary settlement of such action. The foregoing obligations are conditioned on Customer: (a)notifying ZOLL
<br />promptly in writing of such action; (b)giving ZOLL sole control of the defense thereof and any related settlement negotiations; and (c)cooperating and, at ZOLL's request and expense,
<br />assisting in such defense. If the Software becomes, or in ZOLL's opinion is likely to become, the subject of an infringement claim, ZOLL may, at its option and expense, either: (i)
<br />procure for Customer the right to continue using the Software; (ii)replace or modify the Software so that it becomes non - infringing; or (iii)accept return of the Software, terminate this
<br />MSLA, in whole or in part, as appropriate, and refund Customer the Software Fees paid for such Software upon such termination, computed according to a 36 month straight -line
<br />amortization schedule beginning on the date of the signed Onsite Installation Verification and Exceptions Report. Notwithstanding the foregoing, ZOLL will have no obligation under
<br />this Section 8 or otherwise with respect to any infringement claim based upon: (w)any use of the Software not in accordance with this MSLA; (x)any use of the Software in combination
<br />with products, equipment, software, or data not supplied by ZOLL if such infringement would have been avoided but for the combination with other products, equipment, software or
<br />data; (y)any use ofany release of the Software other than the most current release made commercially available by ZOLL; or (z)any modification of the Software by any person other than
<br />ZOLL or its authorized agents or subcontractors. This Section8 states ZOLL's entire liability and the Customer's exclusive remedy for any claims of infringement.
<br />9. LIMITATION OF LIABILITY. ZOLL's total cumulative liability in connection with any Software, Services or Maintenance Services provided under this MSLA or any SOW,
<br />whether in contract, tort or otherwise, will not exceed the amount of fees paid to ZOLL under this MSLA during the 12 month period preceding the events giving rise to such liability. In
<br />no event will ZOLL be liable for any consequential, indirect, exemplary, special, or incidental damages, including without limitation any lost data, lost profits and costs of procurement of
<br />substitute goods or services, arising from or relating to the MSLA or any SOW, however caused and under any theory of liability (including negligence), even if ZOLL has been advised
<br />of the possibility of such damages. Customer acknowledges that the Fees reflect the allocation of risk between the parties and that ZOLL would not enter into the MSLA or any SOW
<br />without these limitations on ZOLL's liability. In addition, ZOLL disclaims all liability of any kind of its suppliers.
<br />10. CONFIDENTIALITY.
<br />10.1 Confidential Information. Subject to the applicable law regarding the customer's responsibility under the Texas Public Information Act, each party (the "Disclosing Party")
<br />may from time to time disclose to the other party (the "Recipient ") certain information regarding the business of the Disclosing Party and its suppliers, including technical, marketing,
<br />financial, employee, planning, and other confidential or proprietary information that is marked or identified as confidential, or disclosed under circumstances that would lead a reasonable
<br />person to believe such information is confidential ( "Confidential Information "). The Software, including without limitation any routines, subroutines, directories, tools, programs, or
<br />any other technology included therein, shall be considered ZOLL's Confidential Information. The Recipient will not use any Confidential Information of the Disclosing Parry for any
<br />purpose not expressly permitted by the MSLA, and will disclose the Confidential Information of the Disclosing Party only to the employees or contractors of the Recipient who have a
<br />need to know such Confidential Information for purposes of the MSLA and who are under a duty of confidentiality no less restrictive than the Recipient's duty hereunder. The Recipient
<br />will protect the Disclosing Party's Confidential Information from unauthorized use, access, or disclosure in the same manner as the Recipient protects its own confidential or proprietary
<br />information of a similar nature and with no less than reasonable care.
<br />10.2 Exceptions. The Recipient's obligations under Section10.1 with respect to any Confidential Information of the Disclosing Party will terminate if such information: (a)was
<br />already known to the Recipient at the time ofdisclosure by the Disclosing Party; (b)was disclosed to the Recipient by a third party who had the right to make such disclosure without any
<br />confidentiality restrictions; (c)is, or through no fault of the Recipient has become, generally available to the public; or (d)was independently developed by the Recipient without access to,
<br />or use of, the Disclosing Party's Confidential Information. In addition, the Recipient will be allowed to disclose Confidential Information of the Disclosing Party to the extent that such
<br />disclosure is: (i) approved in writing by the Disclosing Party; (ii)necessary for the Recipient to enforce its rights under the MSLA or a SOW in connection with a legal proceeding; or
<br />(iii)required by law or by the order ofa court of similar judicial or administrative body; provided that the Recipient notifies the Disclosing Party of such required disclosure promptly and
<br />in writing and cooperates with the Disclosing Party, at the Disclosing Party's request and expense, in any lawful action to contest or limit the scope of such required disclosure.
<br />10.3 Authority to Disclose Confidential Information. Prior to making any disclosure to ZOLL of private patient information, Customer represents that it has obtained, in accordance
<br />with federal, state and local laws relating to the privacy of patient health information, including but not limited to the Health Insurance and Portability and Accountability Act of 1996 and
<br />regulations, and guidelines related thereto, a properly executed, written authorization from each of its patient or the patient's authorized representative documenting the patient's express
<br />written consent to enable the disclosure by Customer to ZOLL of protected health information.
<br />11. TERM AND TERMINATION.
<br />11.1 Term. The term of this MSLA will begin on the Effective Date and will continue until terminated by either party as provided in Section 11.2 (the "Term "). The term for each
<br />subsequent SOW will be set forth in the applicable SOW unless this MSLA is terminated pursuant to Section 11.2.
<br />11.2 Termination. Either party may terminate this MSLA and all Statements of Work or terminate a particular SOW, as applicable, if the other party breaches any material provision
<br />of the MSLA or a SOW and does not cure such breach within 30 days after receiving written notice thereof. The City may terminate this agreement for convenience and without cause
<br />with at least fifteen (15) calendar days prior written notice.
<br />11.3 Effects of Termination. Upon termination or expiration of the MSLA for any reason: (a)any amounts owed to ZOLL under this MSLA and all Statements of Work before such
<br />termination or expiration will be immediately due and payable; (b)all licensed rights granted in the MSLA will immediately cease to exist; (c)Customer must promptly
<br />Page 4 of 7
<br />Customer Initials:
<br />
|