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16.1. ESO provides the Software to allow Customer (and its respective
<br />Users) to enter, document, and disclose Customer Data, and as such,
<br />ESO gives no representations or guarantees about the accuracy or
<br />completeness of Customer Data (including PHI) entered, uploaded or
<br />disclosed through the Software.
<br />16.2. Customer is solely responsible for any decisions or actions taken
<br />involving patient care or patient care management, whether those
<br />decisions or actions were made or taken using information received
<br />through the Software.
<br />17. MISCELLANEOUS
<br />17.1. Independent Contractors. The parties are independent contractors.
<br />Neither party is the agent of the other, and neither may make
<br />commitments on the other's behalf. The parties agree that no ESO
<br />employee or contractor is or will be considered an employee of
<br />Customer.
<br />17.2. Notices. Notices provided under this Agreement must be in writing and
<br />delivered by (a) certified mail, return receipt requested to a party's
<br />principal place of business as forth in the recitals on page 1 of this
<br />Agreement, (b) hand delivered, (c) facsimile with receipt of a
<br />"Transmission Confirmed" acknowledgment, (d) e-mail to a person
<br />designated in writing by the receiving party, or (e) delivery by a
<br />reputable overnight carrier service. In the case of delivery by facsimile
<br />or e-mail, the notice must be followed by a copy of the notice being
<br />delivered by a means provided in (a), (b) or (e). The notice will be
<br />deemed given on the day the notice is received.
<br />17.3. Merger Clause. In entering into this Agreement, neither party is relying
<br />upon any representations or statements of the other that are not fully
<br />expressed in this Agreement; rather each party is relying on its own
<br />judgment and due diligence and expressly disclaims reliance upon any
<br />representations or statement not expressly set forth in this Agreement.
<br />In the event the Customer issues a purchase order, letter or any other
<br />document addressing the Software or Services to be provided and
<br />performed pursuant to this Agreement, it is hereby specifically agreed
<br />and understood that any such writing is for the Customer's internal
<br />purposes only, and that any terms, provisions, and conditions
<br />contained therein shall in no way modify this Agreement.
<br />17.4. Severability. To the extent permitted by applicable law, the parties
<br />hereby waive any provision of law that would render any clause of this
<br />Agreement invalid or otherwise unenforceable in any respect. If a
<br />provision of this Agreement is held to be invalid or otherwise
<br />unenforceable, such provision will be interpreted to fulfill its intended
<br />purpose to the maximum extent permitted by applicable law, and the
<br />remaining provisions of this Agreement will continue in full force and
<br />effect.
<br />17.5. Subcontracting. Except for training and implementation services
<br />related to the Software, neither party may subcontract or delegate its
<br />obligations to each other hereunder, nor may it contract with third
<br />parties to perform any of its obligations hereunder except as
<br />contemplated in this Agreement, without the other party's prior written
<br />consent.
<br />17.6. Modifications and Amendments. This Agreement may not be amended
<br />except through a written agreement signed by authorized
<br />representatives of each party, provided that the Customer agrees that
<br />ESO may rely on informal writings (including emails) of Customer's
<br />authorized representatives to (i) terminate Software products and
<br />services and (ii) approve or ratify rate or tier increases for Software
<br />products and services then in use by Customer.
<br />17.7. Force Majeure. No delay, failure, or default will constitute a breach of
<br />this Agreement to the extent caused by acts of war, terrorism,
<br />hurricanes, earthquakes, other acts of God or of nature, strikes or
<br />other labor disputes, riots or other acts of civil disorder, embargoes, or
<br />other causes beyond the performing party's reasonable control
<br />(collectively, "Force Majeure"). In such event, however, the delayed
<br />party must promptly provide the other party notice of the Force
<br />Majeure. The delayed party's time for performance will be excused for
<br />the duration of the Force Majeure, but if the event last longer than 30
<br />days, the other party may immediately terminate the applicable
<br />Software Schedule.
<br />A TRUE COPY
<br />CERTIFICATION ON LAST PAGE
<br />17.8. Marketing. If requested by ESO, Custor9,R aSfiffp â–ºera bly
<br />cooperate with ESO's preparation and issuance of 6 `p"u Ic\"
<br />announcement regarding the relationship of the parties.
<br />17.9. Waiver & Breach. Neither party will be deemed to have waived any
<br />rights under this Agreement unless it is an explicit written waiver made
<br />by an authorized representative. No waiver of a breach of this
<br />Agreement will constitute a waiver of any other breach hereof.
<br />17.10. Survival of Terms. Unless otherwise stated, all of ESO's and
<br />Customer's respective obligations, representations and warranties
<br />under this Agreement which are not, by the expressed terms of this
<br />Agreement, fully to be performed while this Agreement is in effect
<br />shall survive the termination of this Agreement.
<br />17.11. Ambiguous Terms. This Agreement will not be construed against any
<br />party by reason of its preparation.
<br />17.12. Governing Law. This Agreement, any claim dispute or controversy
<br />hereunder (a "Dispute") will be governed by (i) the laws of the State
<br />of Florida, or (ii) if Customer is a city, county, municipality or other
<br />governmental entity, the law of state where Customer is located, in
<br />each case foregoing without regard to its conflicts of law. The UN
<br />Convention for the International Sale of Goods and the Uniform
<br />Computer Information Transactions Act will not apply. In any Dispute,
<br />each parry will bear its own attorneys' fees and costs and expressly
<br />waives any statutory right to attorneys' fees.
<br />17.13. Vendor shall, at all times, comply with the Florida Public Records
<br />Law, the Florida Open Meeting Law and all other applicable laws,
<br />rules and regulations of the State of Florida.
<br />17.14. IF THE VENDOR HAS QUESTIONS REGARDING THE APPLICATION OF
<br />CHAPTER 119, FLORIDA STATUTES, TO THE VENDORS' DUTY TO
<br />PROVIDE PUBLIC RECORDS RELATING TO THIS AGREEMENT,
<br />CONTACT THE CUSTODIAN OF PUBLIC RECORDS AT 772-226-1424,
<br />Indian River County Office of County Attorney, 180127th St, Vero
<br />Beach, Florida 32960 or via email at publicrecords@ircgov.com.
<br />17.15. Bench Trial. The parties agree to waive, to the maximum extent
<br />permitted by law, any right to a jury trial with respect to any Dispute.
<br />17.16. No Class Actions. NEITHER PARTY SHALL BE ENTITLED TO JOIN OR
<br />CONSOLIDATE CLAIMS BY OR AGAINST OTHER ESO CUSTOMERS, OR
<br />PURSUE ANY CLAIM AS A REPRESENTATIVE OR CLASS ACTION OR IN
<br />A PRIVATE ATTORNEY GENERAL CAPACITY.
<br />17.17. Limitation Period. Neither party shall be liable for any claim brought
<br />more than two years after the cause of action for such claim first
<br />arose.
<br />17.18. Disoute Resolution. Customer and ESO will attempt to resolve any
<br />Dispute through negotiation or by utilizing a mediator agreed to by
<br />the parties, rather than through litigation. Negotiations and
<br />mediations will be treated as confidential. If the parties are unable to
<br />reach a resolution within 30 days of notice of the Dispute to the other
<br />party, the parties may pursue all other courses of action available at
<br />law or in equity.
<br />17.19. Technolo Export. Customer shall not: (a) permit any third party to
<br />access or use the Software in violation of any U.S. law or regulation;
<br />or (b) export any software provided by ESO or otherwise remove it
<br />from the United States except in compliance with all applicable U.S.
<br />laws and regulations. Without limiting the generality of the foregoing,
<br />Customer shall not permit any third party to access or use the
<br />Software in, or export such software to, a country subject to a United
<br />States embargo (as of the Effective Date - Cuba, Iran, North Korea,
<br />Sudan, and Syria).
<br />17.20. Order of Precedence. In the event of any conflict between this
<br />Agreement, Addenda or other attachments incorporated herein, the m
<br />following order of precedence will govern: (1) the General Terms and N
<br />Conditions; (2) any Business Associate Agreement; (3) the applicable
<br />Software Schedule or SOW, with most recent Software Schedule or o
<br />SOW taking precedence over earlier ones; and (4) any ESO policy
<br />posted online, including without limitation its privacy policy. No
<br />amendments incorporated into this Agreement after execution of the
<br />General Terms and Conditions will amend such General Terms and
<br />C
<br />Conditions unless it specifically states its intent to do so and cites
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<br />the section or sections amended.
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