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A TRUE COPY
<br />CERTIFICATION ON LAST PAGE
<br />equivalent or (c) replace such Software with a non -infringing
<br />13.1. Ownership of Data. As between ESO and diRtcWrTH! �ssWr Data
<br />equivalent. If (a), (b), or (c) above are not reasonably practicable,
<br />shall be owned by Customer.
<br />either party may, at its option, terminate the relevant Software
<br />Schedule, in which case ESO will refund any pre -paid Fees on a pro-
<br />13.2. Use of Customer Data. Unless it receives Customer's prior written
<br />rata basis for such Software Schedule. Notwithstanding the
<br />consent, ESO shall not: (a) access, process, or otherwise use
<br />foregoing, ESO shall have no obligation hereunder for any claim
<br />Customer Data; and (b) intentionally grant any third -party access to
<br />resulting or arising from (x) Customer's breach of this Agreement; (y)
<br />Customer Data, including without limitation ESO's other customers,
<br />modifications made to the Software that were not performed or
<br />except subcontractors that are subject to a reasonable nondisclosure
<br />provided by or on behalf of ESO or (z) the combination, operation or
<br />agreement or authorized participants in the case of Interoperability
<br />use by Customer (and/or anyone acting on Customer's behalf) of the
<br />Software. Notwithstanding the foregoing, ESO may use and disclose
<br />Software in connection with any other product or service (the
<br />Customer Data to fulfill its obligations under this Agreement or as
<br />combination or joint use of which causes the alleged infringement).
<br />required by applicable law or legal or governmental authority. ESO
<br />This Section 11 states ESO's sole obligation and liability, and
<br />shall give Customer prompt notice of any such legal or governmental
<br />Customer's sole remedy, for potential or actual intellectual property
<br />demand and reasonably cooperate with Customer in any effort to seek
<br />infringement by the Software.
<br />a protective order or otherwise to contest such required disclosure, at
<br />Customer's expense.
<br />11.2.
<br />Indemnification Procedures. Upon becoming aware of any matter
<br />which is subject to the provisions of Sections 11.1(a "Claim"),
<br />13.3. Anonvmized Data. CUSTOMER ACKNOWLEDGES AND AGREES THAT,
<br />Customer must give prompt written notice of such Claim to ESO,
<br />NOTWITHSTANDING ANY OTHER PROVISION HEREIN, ESO MAY USE
<br />accompanied by copies of any written documentation regarding the
<br />ANONYMIZED DATA FOR INTERNAL AND EXTERNAL PURPOSES
<br />Claim received by the Customer. ESO shall compromise or defend, at
<br />(INCLUDING BENCHMARKING AND RESEARCH), PROVIDED THAT ESO
<br />its own expense and with its own counsel, any such Claim. Customer
<br />WILL NOT SELL ANONYMIZED DATA TO THIRD PARTIES FOR
<br />will have the right, at its option, to participate in the settlement or
<br />COMMERCIAL USE. Without limiting the foregoing, ESO will own all
<br />defense of any such Claim, with its own counsel and at its own
<br />right, title and interest in all Intellectual Property of any aggregated
<br />expense; provided, however, that ESO will have the right to control
<br />and de -identified reports, summaries, compilations, analysis, statistics
<br />such settlement or defense. ESO will not enter into any settlement
<br />or other information derived therefrom.
<br />that imposes any liability or obligation on Customer without the
<br />13.4. Risk of Exposure. Customer acknowledges and agrees that hosting
<br />Customer's prior written consent. The parties will cooperate in any
<br />data online involves risks of unauthorized disclosure and that, in
<br />such settlement or defense and give each other full access to all
<br />accessing and using the SaaS, Customer assumes such risks.
<br />relevant information, at ESO's expense.
<br />Customer has sole responsibility for obtaining, maintaining, and
<br />12. LIMITATION
<br />OF LIABILITY
<br />securing its network connections. ESO makes no representations to
<br />Customer regarding the reliability, performance or security of any
<br />12.1.
<br />LIMITATION OF DAMAGES. NEITHER ESO NOR CUSTOMER SHALL BE
<br />network or provider.
<br />LIABLE TO THE OTHER FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL,
<br />PUNITIVE OR INCIDENTAL DAMAGES, INCLUDING CLAIMS FOR
<br />14. FEEDBACK RIGHTS &WORK PRODUCT
<br />DAMAGES FOR LOST PROFITS, GOODWILL, USE OF MONEY,
<br />14.1. Feedback Rights. ESO does not agree to treat as confidential any
<br />INTERRUPTED OR IMPAIRED USE OF THE SOFTWARE, AVAILABILITY OF
<br />Feedback that Customer provides to ESO. Nothing in this Agreement
<br />DATA, STOPPAGE OF WORK OR IMPAIRMENT OF OTHER ASSETS
<br />will restrict ESO's right to use, profit from, disclose, publish, keep
<br />RELATING TO THIS AGREEMENT.
<br />secret, or otherwise exploit Feedback, without compensation or
<br />12.2.
<br />LIMITATION OF LIABILITY. WITH THE EXCEPTION OF SECTION 12.3
<br />crediting Customer. Feedback will not constitute Confidential
<br />(EXCEPTIONS TO THE LIMITATION OF LIABILITY), ESO'S MAXIMUM
<br />Information, even if it would otherwise qualify as such pursuant to
<br />AGGREGATE LIABILITY FOR ALL CLAIMS OF LIABILITY ARISING OUT OF
<br />Section 9 (Confidential Information).
<br />OR IN CONNECTION WITH THIS AGREEMENT, SHALL NOT EXCEED THE
<br />14.2. Work Product Ownershio. In the event Customer hires ESO to perform
<br />FEES PAID BY (OR ON BEHALF OF) CUSTOMER WITHIN THE
<br />Professional Services, ESO alone shall hold all right, title, and interest
<br />PRECEDING 12 -MONTH PERIOD UNDER THE APPLICABLE SOFTWARE
<br />to all proprietary and intellectual property rights of the Deliverables
<br />SCHEDULE OR SOW GIVING RISE TO THE CLAIM.
<br />(including, without limitation, patents, trade secrets, copyrights, and
<br />12.3.
<br />EXCEPTIONS TO LIMITATION OF LIABILITY. NOTWITHSTANDING
<br />trademarks), as well as title to any copy of software made by or for
<br />SECTION 12.2, (A) ESO'S LIABILITY FOR CLAIMS INVOLVING ITS
<br />Customer (if applicable). Customer hereby explicitly acknowledges and
<br />INDEMNIFICATION OBLIGATIONS UNDER SECTION 11 SHALL BE
<br />agrees that nothing in this Agreement or a separate SOW gives the
<br />LIMITED TO $500,000, AND (B) ESO'S LIABILITY SHALL BE LIMITED TO
<br />Customer any right, title, or interest to the intellectual property or
<br />THE AMOUNT OF INSURANCE COVERAGE REQUIRED BY SECTION 10
<br />proprietary know-how of the Deliverables.
<br />FOR THE FOLLOWING TYPES OF CLAIMS: (1) CLAIMS ARISING FROM
<br />15. GOVERNMENT PROVISIONS
<br />ESO'S WILLFUL MISCONDUCT OR CRIMINAL CONDUCT; AND (II)
<br />CLAIMS ARISING FROM A BREACH OF CONFIDENTIALITY OBLIGATIONS,
<br />15.1. Compliance with Laws. Both parties shall comply with and give all
<br />INCLUDING A BREACH OF OBLIGATIONS REGARDING PROTECTED
<br />notices required by all applicable federal, state and local laws,
<br />HEALTH INFORMATION.
<br />ordinances, rules, regulations and lawful orders of any public authority
<br />12.4.
<br />THE FOREGOING LIMITATIONS, EXCLUSIONS, DISCLAIMERS SHALL
<br />bearing on use of the Software and the performance of this Agreement
<br />APPLY REGARDLESS OF WHETHER THE CLAIM FOR SUCH DAMAGES IS
<br />15.2. Business Associate Addendum. The parties agree to the terms of the
<br />BASED IN CONTRACT, WARRANTY, STRICT LIABILITY, NEGLIGENCE,
<br />Business Associate Addendum attached hereto as Exhibit C and
<br />TORT OR OTHERWISE. INSOFAR AS APPLICABLE LAW PROHIBITS ANY
<br />incorporated herein by reference.
<br />LIMITATION HEREIN, THE PARTIES AGREE THAT SUCH LIMITATION
<br />SHALL BE AUTOMATICALLY MODIFIED, BUT ONLY TO THE EXTENT SO
<br />15.3. Equal Opportunity. The parties shall abide by the requirements of 41
<br />AS TO MAKE THE LIMITATION PERMITTED TO THE FULLEST EXTENT
<br />CFR 60-1.4(a), 60-300.5(a) and 60-741.5(a), and the posting
<br />POSSIBLE UNDER SUCH LAW. THE PARTIES AGREE THAT THE
<br />requirements of 29 CFR Part 471, appendix A to subpart A, if
<br />LIMITATIONS SET FORTH HEREIN ARE AGREED ALLOCATIONS OF RISK
<br />applicable. These regulations prohibit discrimination against qualified
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<br />CONSTITUTING IN PART THE CONSIDERATION FOR ESO'S SOFTWARE
<br />individuals based on their status as protected veterans or individuals
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<br />AND SERVICES TO CUSTOMER, AND SUCH LIMITATIONS WILL APPLY
<br />with disabilities, and prohibit discrimination against all individuals
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<br />NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSES OF
<br />based on their race, color, religion, sex, sexual orientation, gender
<br />ANY LIMITED REMEDY AND EVEN IFA PARTY HAS BEEN ADVISED OF
<br />identity or national origin.
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<br />THE POSSIBILITY OF SUCH LIABILITIES.
<br />15.4. Excluded Parties List. ESO agrees to immediately report to Customer if
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<br />12.5.
<br />THIS SECTION 12 SHALL SURVIVE EXPIRATION OR TERMINATION OF
<br />an employee or contractor is listed by a federal agency as debarred,
<br />THE AGREEMENT.
<br />excluded or otherwise ineligible for participation in federally funded
<br />health care programs.
<br />13. CUSTOMER DATA & PRIVACY
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<br />16. PHI ACCURACY & COMPLETENESS
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