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in business operations in Cuba or Syria, as defined by section 287.135,
<br />Florida Statutes. Customer may terminate this Agreement if ESO,
<br />including all wholly owned subsidiaries, majority-owned subsidiaries,
<br />and parent companies that exist for the purpose of making profit, is
<br />found to have been placed on the Scrutinized Companies that Boycott
<br />Israel List or is engaged in a boycott of Israel as set forth in section
<br />215.4725, Florida Statutes.
<br />6.4. Effect of Termination.
<br />6.4.1. If Customer terminates this Agreement or any Software Schedule as
<br />a result of ESO's material breach, then to the extent that Customer
<br />has prepaid any Fees, ESO shall refund to Customer any prepaid
<br />Fees on a pro -rata basis to the extent such Fees are attributable to
<br />the period after the latter to occur of the (i) termination date or (ii)
<br />the date on which Customer actually ceases use of the Software.
<br />6.4.2. Upon termination of this Agreement or any Software Schedule,
<br />Customer shall cease all use of the Software and delete, destroy or
<br />return all copies of the Documentation and Licensed Software in its
<br />possession or control, except as required by law. Customer shall
<br />remain obligated to pay appropriate Fees at ESO's then -current
<br />rates if Customer continues to use or access Software after the
<br />termination or expiration of this Agreement. If Customer received
<br />discounts for any of the two years prior to the date of termination,
<br />Customer shall promptly pay ESO's invoice recouping such
<br />discounts.
<br />6.4.3. Termination of this Agreement is without prejudice to any other right
<br />or remedy and shall not release a party from any liability.
<br />6.5. Delivery of Data. If Customer requests its data within 60 days of
<br />expiration or termination of this Agreement, ESO will provide Customer
<br />its Customer Data in a searchable .pdf format. Customer acknowledges
<br />that ESO is under no obligation to retain Customer Data more than 60
<br />days after expiration or termination of this Agreement.
<br />7. REPRESENTATIONS AND WARRANTIES
<br />7.1. Material Performance of Software. ESO represents and warrants that
<br />the Software will perform in material accordance with any
<br />Documentation provided by ESO.
<br />7.2. Due Authority. Each party's execution, delivery and performance of this
<br />Agreement and each agreement or instrument contemplated by this
<br />Agreement has been duly authorized by all necessary corporate or
<br />government action.
<br />7.3. Customer Cooperation. Customer agrees to use current operating
<br />systems and reasonably and timely cooperate with ESO, including
<br />providing ESO reasonable access to its equipment, software and data.
<br />DISCLAIMER OF WARRANTIES. EXCEPT AS OTHERWISE PROVIDED IN
<br />SECTION 7, ESO DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED,
<br />INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS
<br />FOR A PARTICULAR PURPOSE, PERFORMANCE, SUITABILITY, TITLE, NON -
<br />INFRINGEMENT, OR ANY IMPLIED WARRANTY ARISING FROM STATUTE,
<br />COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE.
<br />WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ESO DOES
<br />NOT REPRESENT OR WARRANT THAT CUSTOMER DATA WILL REMAIN
<br />PRIVATE OR SECURE, OR THAT THE SOFTWARE (X) WILL PERFORM
<br />WITHOUT INTERRUPTION OR ERROR, OR (Y) IS SECURE FROM HACKING
<br />OR OTHER UNAUTHORIZED INTRUSION. EXCEPT AS EXPRESSLY
<br />PROVIDED IN SECTION 7, CUSTOMER ACCEPTS THE SOFTWARE "AS -IS"
<br />AND "AS AVAILABLE."
<br />9. CONFIDENTIALITY
<br />9.1. "Confidential Information" refers to the following items: (a) any
<br />document marked "Confidential"; (b) any information orally designated
<br />as "Confidential" at the time of disclosure, provided the disclosing party
<br />confirms such designation in writing within five business days; (c) the
<br />Software and Documentation, whether or not designated confidential;
<br />(d) ESO's security controls, policies, procedures, audits, or other
<br />information concerning ESO's internal security posture; (e) any other
<br />nonpublic, sensitive information reasonably treated as trade secret or
<br />otherwise confidential; and (f) Customer Data which does not comprise
<br />PHI . Notwithstanding the foregoing, Confidential Information does not
<br />include information that: (i) is in the other party's possession at the time
<br />of disclosure free of duty of non -disclosure; (ii) is independently
<br />developed without use of or reference to Confidential Information; (iii)
<br />A TRUE COPY
<br />CERTIFICATION ON LAST PAGE
<br />becomes known publicly, before or afterJdRcI6UV6[-1pt&rdW as a
<br />result of the receiving party's improper action or inaction; (iv) is
<br />approved for release in writing by the disclosing parry; or (v) PHI (which
<br />shall be governed by the Business Associate Agreement rather than
<br />this Section).
<br />9.2. Nondisclosure. Each party shall use Confidential Information of the
<br />other party solely to fulfill the terms of this Agreement (the "Purpose").
<br />Each party shall (a) ensure that its employees or contractors are bound
<br />by confidentiality obligations no less restrictive than those contained
<br />herein, and (b) not disclose Confidential Information to any other third
<br />party without prior written consent from the disclosing party. Without
<br />limiting the generality of the foregoing, the receiving party shall protect
<br />Confidential Information with the same degree of care it uses to protect
<br />its own confidential information of similar nature and importance, but
<br />with no less than reasonable care. A receiving party shall promptly
<br />notify the disclosing party of any misuse or misappropriation of
<br />Confidential Information of which it is aware.
<br />9.3. Termination & Return. With respect to each item of Confidential
<br />Information, the obligations of nondisclosure will terminate three years
<br />after the date of disclosure; provided that, such obligations related to
<br />Confidential Information constituting ESO's trade secrets shall continue
<br />so long as such information remains subject to trade secret protection
<br />pursuant to applicable law. Upon termination of this Agreement, a party
<br />shall return all copies of Confidential Information to the other or certify
<br />the destruction thereof.
<br />9.4. Retention of Rights. This Agreement does not transfer ownership of
<br />Confidential Information or grant a license thereto.
<br />9.5. Open Records and Other Laws. Notwithstanding anything in this Section
<br />to the contrary, the parties expressly acknowledge that Confidential
<br />Information may be disclosed if such Confidential Information is
<br />required to be disclosed by law, a lawful public records request, or
<br />judicial order, provided that prior to such disclosure, written notice of
<br />such required disclosure shall be given promptly and without
<br />unreasonable delay by the receiving party in order to give the disclosing
<br />party the opportunity to object to the disclosure and/or to seek a
<br />protective order. The receiving party shall reasonably cooperate in this
<br />effort. In addition, Customer may disclose the contents of this
<br />Agreement solely for the purpose of completing its review and approval
<br />processes under its local rules, if applicable.
<br />10. INSURANCE. Throughout the Term (and for a period of at least three
<br />years thereafter for any insurance written on a claims -made form) ESO
<br />shall maintain in effect the insurance coverage described below:
<br />10.1. Commercial general liability insurance with a minimum of $1 million
<br />per occurrence and $1 million aggregate;
<br />10.2. Commercial automobile liability insurance covering use of all non -
<br />owned and hired automobiles with a minimum limit of $1 million for
<br />bodily injury and property damage liability;
<br />10.3. Worker's compensation insurance and employer's liability insurance or
<br />any alternative plan or coverage as permitted or required by applicable
<br />law, with a minimum employer's liability limit of $1 million each
<br />accident or disease; and
<br />10.4. Computer processor/computer professional liability insurance (a/k/a
<br />technology errors and omissions) covering the liability for financial loss
<br />due to error, omission or negligence of ESO, and privacy and network
<br />security insurance ("cyber coverage") covering losses arising from a
<br />disclosure of confidential information (including PHI) with a combined
<br />aggregate amount of $1 million.
<br />11. INDEMNIFICATION
<br />11.1. IP Infringement. Subject to the limitations in Section 12, ESO shall
<br />defend and indemnify Customer from any damages, costs, liabilities,
<br />m
<br />expenses (including reasonable attorney's fees) ("Damages")
<br />o
<br />actually incurred or finally adjudicated as to any third -party claim or
<br />m
<br />action alleging that the Software delivered pursuant to this
<br />o
<br />Agreement infringe or misappropriate any third party's patent,
<br />copyright, trade secret, or other intellectual property rights
<br />enforceable in the applicable jurisdiction (each, an "Indemnified
<br />i
<br />Claim"). If Customer makes an Indemnified Claim under this Section
<br />or if ESO determines that an Indemnified Claim may occur, ESO shall
<br />1U
<br />at its option: (a) obtain a right for Customer to continue using such
<br />Software; (b) modify such Software to make it a non -infringing
<br />a
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