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whole or in part; or (e) use or permit the use of the Software for
<br />commercial time-sharing arrangements or providing service bureau,
<br />data processing, rental, or other services to any third party (including
<br />any affiliate not specifically listed in the applicable Software Schedule).
<br />3.4. Ownership. The rights granted under the provisions of this Agreement
<br />do not constitute a sale of the Software. ESO retains all right, title, and
<br />interest in and to the Software, including without limitation all software
<br />used to provide the Software and all graphics, user interfaces, logos
<br />and trademarks reproduced through the Software, except to the limited
<br />extent set forth in this Agreement. This Agreement does not grant
<br />Customer any intellectual property rights in the Software or any of its
<br />components, except to the limited extent that this Agreement
<br />specifically sets forth Customer's rights to access, use, or copy the
<br />Software during the Term. Customer acknowledges that the Software
<br />and its components are protected by copyright and other laws.
<br />3.5. Third -Party Software and Services. ESO neither accepts liability for, nor
<br />warrants the functionality, utility, availability, reliability or accuracy of,
<br />Third -Party Software or Third -Party Services. The Third -Party Software
<br />"EMS1 Academy" and/or "FireRescuel Academy" and/or "EMS1 &
<br />FireRescuel Academy - Implementation and Configuration" and/or
<br />"Learning Management System" and/or "EVALS Implementation"
<br />(collectively, "Education") is offered by ESO in collaboration with Lexipol,
<br />f/k/a The Praetorian Group. If Customer subscribes to Education,
<br />Customer acknowledges and agrees to the terms and conditions of the
<br />Praetorian license agreement, located at
<br />httip://www.r)raetoriandigital.com/LMS-Master-Service-Agreemen
<br />which shall supersede this Agreement as it applies to Customer's use of
<br />Education and any Customer Data stored therein.
<br />3.6. Third -Party Data. If Customer (as indicated on an Addendum) elects to
<br />license Third -Party Data (e.g., fire codes), then subject to the terms
<br />hereof, ESO hereby grants Customer a non-exclusive, non-
<br />sublicensable, and non -transferable license during the Term to use
<br />such Third -Party Data via the Software solely for Customer's internal
<br />purposes. Customer will not (i) allow greater access than that set forth
<br />in the applicable Software Schedule, (ii) disclose, release, distribute, or
<br />deliver Third -Party Data, or any portion thereof, to any third party (iii)
<br />copy, modify, or create derivative works of Third -Party Data, (iv) rent,
<br />lease, lend, sell, sublicense, assign, distribute, publish, transfer, or
<br />otherwise make available Third -Party Data, (v) attempt to output in any
<br />form more than 10% of the Third -Party Data or otherwise circumvent
<br />the usage limitations included in the Software, (vi) remove any
<br />proprietary notices included within Third -Party Data or Software, or (vii)
<br />use Third -Party Data in any manner or for any purpose that infringes or
<br />otherwise violates any proprietary right of a person, or that violates
<br />applicable law. ESO does not warrant the functionality, reliability,
<br />accuracy, completeness or utility of, Third -Party Data, or accept any
<br />liability therefor. Additional terms and limitations applicable to Third -
<br />Party Data may be provided on the applicable Addendum.
<br />3.7. New Versions & Sunset. If ESO releases a New Version of Licensed
<br />Software, Customer may elect to receive such New Version, subject to a
<br />relicense fee of 75% of the standard price for such new version. All New
<br />Versions provided under this Agreement will constitute Licensed
<br />Software and be subject to the terms and conditions of this Agreement.
<br />ESO may discontinue Support Services for Licensed Software upon 12
<br />months' notice to Customer.
<br />4. HOSTING, SLA & SUPPORT SERVICES
<br />4.1. Hosting & Management. Customer shall be solely responsible for
<br />hosting and managing any Licensed Software. ESO shall be responsible
<br />for hosting and managing any SaaS.
<br />4.2. Service Level Agreement. If an Outage, excluding Scheduled Downtime
<br />(as defined below), results in the service level uptime falling below 99%
<br />for three months in any rolling 12 -month period (the "Uptime
<br />Commitment"), then Customer may immediately terminate this
<br />Agreement, in which case ESO will refund any prepaid, unearned Fees
<br />to Customer. This is Customer's sole remedy for ESO's breach of the
<br />Uptime Commitment.
<br />4.3. Scheduled Downtime. ESO will provide reasonable notice to the
<br />Customer (Software Administrator Contact or otherwise) of Scheduled
<br />Downtime (usually at least 72 hours in advance), and will plan
<br />Scheduled Downtime to occur during non -peak hours (midnight to 6
<br />a.m. Central Time). Scheduled Downtime shall never constitute a
<br />failure of performance or Outage by ESO.
<br />A TRUE COPY
<br />CERTIFICATION ON LAST PAGE
<br />4.4. Support and Updates. During the Term,"&Si49 Oo to16ustomer
<br />the Support Services, in accordance with Exhibit B, which is
<br />incorporated herein by reference.
<br />5. FEES
<br />5.1. Fees. In consideration of the rights granted, Customer agrees to pay
<br />ESO the fees for the Software and Professional Services as set forth in
<br />the Software Schedule(s) or SOW(s) (collectively, "Fees"). The Fees are
<br />non -cancelable and non-refundable, except as expressly provided
<br />herein. Customer shall pay all invoices within 30 days of receipt.
<br />5.2. Third -Party Pager. If Customer desires to use a third -party to pay some
<br />or all of the Fees on behalf of Customer (a "Third -Party Payer"), then (i)
<br />each applicable Addendum will identify such arrangement, (ii) the Third -
<br />Party Payer will enter into a written agreement with ESO regarding such
<br />arrangement, (iii) Customer may replace the Third -Party Payer by written
<br />notice to ESO (provided that no such change shall be made until the
<br />then -current Term's renewal), and (iv) Customer shall remain
<br />responsible for payment if the Third -Party Payer does not pay the Fees.
<br />5.3. Uplift on Renewal. Fees for Software, which recur annually, shall
<br />increase by 3% each year this Agreement is in effect.
<br />5.4. Taxes and Fees. The Fees are exclusive of all taxes and credit card
<br />processing fees, if applicable. Unless and until Customer provides ESO
<br />a tax exemption certificate, Customer will be responsible for and will
<br />remit (or will promptly reimburse ESO for) all taxes of any kind, including
<br />sales, use, duty, customs, withholding, property, value-added, and other
<br />similar federal, state or local taxes (other than taxes based on ESO's
<br />income) related to this Agreement.
<br />5.5. Appropriation of Funds. If Customer is a city, county or other
<br />government entity, Customer will have the right to terminate the
<br />Agreement at the end of the Customer's fiscal term if Customer
<br />provides evidence that its governing body did not appropriate sufficient
<br />funds for the next fiscal year. Notwithstanding the foregoing, this
<br />provision shall not excuse Customer from past payment obligations or
<br />other Fees earned and unpaid.
<br />5.6. Usage Monitorin . Customer is solely responsible for its own adherence
<br />to volume and use limitations indicated on the applicable Software
<br />Schedule. ESO may monitor Customer's use of the Software, and if
<br />Customer's usage exceeds the level for which Customer has paid in the
<br />applicable Software Schedule (an "Overage"), Customer shall owe ESO
<br />the Fee corresponding to such usage level based on the Software
<br />Schedule (or if none, ESO's then -current rates). ESO may invoice for
<br />Overages immediately.
<br />6. TERM AND TERMINATION
<br />6.1. Term. The term of this Agreement (the "Term") shall commence on the
<br />Effective Date and continue for the period set forth in the applicable
<br />Software Schedule (or, if none, for one year); provided that the Term
<br />shall be automatically extended to match the end of the last
<br />subscription period or license period of any Software provided
<br />hereunder. Thereafter, the Term will renew for successive one-year
<br />periods unless written notice is provided at least 60 days prior to the
<br />applicable renewal date.
<br />6.2. Termination for Cause. Either party may terminate this Agreement or
<br />any individual Software Schedule for the other parry's uncured material
<br />breach by providing written notice. The breaching party shall have 30
<br />days from receipt to cure such breach to the reasonable satisfaction of
<br />the non -breaching party.
<br />6.3. TERMINATION IN REGARDS TO F S 287.135. ESO certifies that it and
<br />those related entities of ESO as defined by Florida law are not on the
<br />Scrutinized Companies that Boycott Israel List, created pursuant to s.
<br />215.4725 of the Florida Statutes, and are not engaged in a boycott of
<br />Israel. In addition, if this agreement is for goods or services of one
<br />million dollars or more, ESO certifies that it and those related entities of
<br />ESO as defined by Florida law are not on the Scrutinized Companies
<br />with Activities in Sudan List or the Scrutinized Companies with Activities
<br />in the Iran Petroleum Energy Sector List, created pursuant to Section
<br />215.473 of the Florida Statutes and are not engaged in business
<br />operations in Cuba or Syria. Customer may terminate this Contract if
<br />ESO is found to have submitted a false certification as provided under
<br />section 287.135(5), Florida Statutes, been placed on the Scrutinized
<br />Companies with Activities in Sudan List or the Scrutinized Companies
<br />with Activities in the Iran Petroleum Energy Sector List, or been engaged
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