Loading...
HomeMy WebLinkAbout2015-079WebEOC® End User License Agreement Hosted Implementation 1 License Agreement. This is a license agreement and not an agreement for sale. This License Agreement effective this 2lstday of Apri 1 2015, is made by and between ESi Acquisition, Inc. ("ESi"), a Delaware Corporation with its principal place of business at 823 Broad Street, Augusta, GA 30901 and Indian River County ("Licensee"), a political subdivision organized under the laws of with principal business location at 1801 27th St., Vero Beach, FLs6 License Agreement ("Agreement") gives Licensee certain 29 limited rights to use the proprietary ESi So are, Software Updates, and Documentation including any updates thereto. 2 Definitions. (a) "Administrator" means an employee, officer, director or consultant of Licensee to whom Licensee has provided a user account and certain rights to administer the Software on behalf of Licensee. (b) "Affiliate" means a corporation or limited liability corporation in which (i) ESi owns a majority interest and/or has substantial control over assets, operations and management, or (ii) which owns or has substantial control over the assets, operations and management of ESi, or (iii) is under common control with ESi. (c) "Documentation" means the WebEOC® Administrator and User Manuals and any other documents, materials, information or guidance, whether supplied as printed material or in electronic form, provided by ESi in conjunction with the purchase, training, use, maintenance or update of the Software. (d) "ESi" means ESi Acquisition, Inc., a Delaware corporation, with its primary place of business at 823 Broad Street, Augusta, GA, USA, 30901 and/or its affiliates. (e) "License" means certain limited rights to use the proprietary ESi Software, Software Updates, online and/or hard -copy documentation and user guides as set forth in Section 4 of this Agreement. (f) "Licensee" means the person or legal entity accepting this License to use the Software, or for whom such License was obtained. (g) "Module" means a proprietary set of status boards developed by ESi for use with selected WebEOC-branded software which are designed to address a common functional need. (h) "Party" means ESi or the licensee individually and "Parties" shall mean ESi and the Licensee collectively (i) "Software," means, individually and collectively, all of the software licensed by Licensee from ESi including, but not limited to, WebEOC® Professional, WebEOC® Town SquareTm, software plug -ins, modules, interfaces, and software updates. (j) "Software Updates" means any technical correction, patch, bug fix, enhancement or other software release provided to Licensee pursuant to this License or under any Software Support Plan purchased by Licensee. Rev 01/13/2014 e.o. (k) "Surge Capacity Plan" means an optional emergency response program which permits Licensee to increase the number of Users to support response to or recovery from an incident declared a disaster by a state or federal government agency. (1) "Term" means the period of years for which Licensee has elected to license the Software. (m) "User" means any person to whom Licensee has provided a user account for the Software. 3 Ownership and Licensing Authority. (a) Ownership of, and title to, the Software and Documentation shall be held by ESi and its licensor(s) and is protected by United States law and applicable international laws, treaties and conventions regarding intellectual property. ESi warrants that it has the power and authority to grant the license described herein. ESi and its licensor(s) shall retain all rights, title and ownership not granted herein to all copies of the Software and Documentation licensed under this Agreement. (b) ESi represents and warrants that it is authorized to redistribute and license any third party software delivered with the Software and Documentation provided under this Agreement. The owner of such third party software shall have the right to enforce this Agreement to the extent permitted by applicable law. 4 Grant of License. ESi grants to Licensee, and Licensee accepts, subject to the following terms and conditions and payment of the applicable license fee, a limited non-exclusive, non -transferable, and non-sublicensable right, revocable according to the terms stated herein, to use the Software and Documentation for the stated Term. 5 Permitted Uses. (a) Licensee may install and use one (1) Instance of the Software on one (1) Machine. As used herein, Machine means a single laptop, personal computer or web server, or a combined web and database server or multiple load -balanced web servers, configured to point to a single database and database server that is used operationally or "in production" ("Instance"). (i) Licensee may use the Software and Documentation solely for Licensee's internal business purposes. (ii) Licensee also may make one (1) copy of the Software for back-up or archival purposes. (iii) License also may install the Software to support "non -production" software development cycle activities as set forth in Exhibit A to this Agreement (iv) If Licensee requires or desires operational use of more than one Instance of the Software, an additional License(s) shall be required. (b) The Software is licensed on a named and active user baser. Each User shall have a unique user account. User accounts shall not be shared. Licensee may provide access to the number of Administrators and Users set forth in Exhibit A to this Agreement. User counts are based on the average number of unique log -ins each month. ESi shall have the right to conduct regular audits of Licensee compliance with the number of Users permitted under this Agreement. Licensee agrees to provide ESi with the information required to complete such audits. Such audits shall be conducted at ESi expense, except that Licensee shall be responsible for reimbursing ESi for all reasonable audit expenses if Licensee shall be found in violation of the User limits set forth in this Agreement. Licensee shall be in violation of User Rev 01/13/2014 limits if the average number of Users during any month covered by the audit is greater than the number of Users permitted in Schedule A and such increase in Licensee is not supported by a Surge Capacity Plan. (c) Administrators and Users shall have different rights to access the Software: (i) Administrators may access all features of the Software. Certain features of the Software may only be accessed by named users who are granted status as an Administrator ("Administration Tools"). Administration Tools include, but are not limited to• creation and administration of user accounts; creation and subsequent editing of incidents; software configuration; use of the WebEOC® BoardBuilder tool; installation and administration of board sets, plug -ins, modules, interfaces and Software Updates; and access to the Software's Application Programming Interface. (ii) Users may not be granted access to any Administration Tools, except that Administrators may grant designated Users rights to create or edit incidents and to add or edit maps in MapTacT"'. Except where otherwise provided in this Agreement, rights to access and use Administrative Tools are given exclusively to the Licensee and Licensee may not grant such rights to any third party. (d) Licensee may provide its consultant(s) or independent contractor(s) with access to the Software and Documentation, provided that such consultants or independent contractors are using the Software and Documentation exclusively for the benefit of the Licensee. Licensee shall be responsible for compliance by its consultants and independent contractors with the terms and conditions of this Agreement. (e) If your licensed Software includes the WebEOC® BoardBuilder tool, Licensee may use the WebEOC® BoardBuilder tool to copy, modify and create WebEOC® forms and templates ("Status Boards") and Licensee may distribute, in printed form or as electronic media, the Status Boards to Licensee's authorized users, provided that such Status Boards are used exclusively for the internal business purposes of Licensee. Status Boards are derivative works of the Software. Licensee shall not sell, resell, license or otherwise transfer for value any derivative works created using the WebEOC® BoardBuilder tool, and Licensee shall not distribute such derivative works as part of any product or service for value to any third party. Any derivative works prepared by Licensee shall remain subject to the terms of this Agreement and shall clearly display the following copyright notice to properly acknowledge the proprietary rights of ESi and its third party licensors: "This work includes the intellectual property of ESi and its licensors and is provided under license. Copyright © 2002-2014, ESi and its licensors. All rights reserved." (f) Licensee may, at its option and according to the terms of the ESi standard price list, obtain a Disaster Recovery Software License to support replication of an active, source server to one or more redundant ("Target") servers which may be placed in use to support disaster recovery or fail -over activities. A Disaster Recovery Software License is required for each Target server. A Disaster Recovery Software License may be used to operate an "in production" instance of the Software only when the Source server is inactive or inoperable; only one Instance of the Software shall be active at any one time. Licensee is not required to obtain additional licenses for Software plug -ins, modules or interfaces installed on a redundant licensed machine. (g) Permitted uses of WebEOC Fusion vary from the terms set forth in Sections 5(a) through 5(0. Licensee may install and place in production one (1) copy of WebEOC Fusion on one (1) Source and one (1) Target server Licensee may make one (1) copy of the Software for back-up or archival purposes, or Licensee may install a second copy of the WebEOC Fusion software on a second machine as long as only one (1) copy of the WebEOC Fusion software is in use at any one time. There is no limit to the number of licensed instances of WebEOC® (or number of WebEOC licensees) which may be connected by a single instance of WebEOC Fusion, provided that (i) only the Licensee of the WebEOC Fusion software Rev 01/13/2014 has administrative privileges and administrative access to the WebEOC Fusion software and (ii) Licensee has paid to ESi all applicable connection fees. 6 Fees and Payment. (a) License fees are due and payable according to the payment schedule set forth in Exhibit C Additional license fees are required should Licensee elect to: (a) use the Software on more than one (1) Licensed Machine; (b) increase the number of named users who may access the Software; (c) increase the number of non -production instances of the Software; (d) license additional Software, (e) upon renewal; or (0 as otherwise required by this Agreement. Such license fees shall be determined by the price list in effect at the time of the transaction and are due and payable prior to installation of the Software or added capacity. (b) At least sixty (60) days prior to the expiration of this Agreement, ESi shall notify Licensee of the current fees for Software, software maintenance and technical support, and hosting services and invoice Licensee for an additional term of one (1) year at the stated price. Licensee shall pay to ESi the invoiced amount on or before the anniversary date of this Agreement. (c) ESi reserves the right to charge interest equal to one and one-half percent (1.5%) on all amounts past due with interest accruing as of the day after the due date, or the maximum rate allowable by law, whichever is less. Licensee shall reimburse ESi for all costs and expenses incurred by ESi in any actions taken to collect any past due amounts including, without limitation, attorney's fees. (d) ESi reserves the right to suspend Licensee access to Software and services if Licensee fails to pay all fees owed and due in a timely manner. 7 Protection of Sofilvare. Licensee agrees to take all reasonable steps to protect the Software and Documentation from unauthorized copying or use The Software source code represents and embodies trade secrets of ESi and/or its third party licensors The Software source code and embodied trade secrets are not licensed to the Licensee. Licensee agrees not to disassemble, decompile or otherwise reverse engineer the Software, use reflection or other mechanism to view, interpret, translate or try to understand the structure of the Software, or otherwise attempt to discover the source code and/or the trade secrets contained in the source code, and Licensee will not allow third parties to do so. Licensee may not, nor allow third parties to, modify or alter the Software in any way 8 Confidentiality. The Software and Documentation contain confidential information and trade secrets of ESi and/or its third party licensors. Licensee agrees to hold in confidence, not disclose and not use the Software and Documentation except as expressly provided herein, and Licensee shall ensure that there is no breach, compromise or violation of such confidentiality by Licensee's employees, consultants, or independent contractors. Licensee recognizes and agrees that there is no adequate remedy at law for a breach of this Section or of Section 9 of this Agreement, that such breach would irreparably harm ESi, that monetary damages would not be an adequate remedy, and that ESi is entitled to injunctive relief with respect to any such breach, or potential breach, in addition to any and all other remedies available at law or at equity. Rev 01/13/2014 9 Proprietary Interests. (a) The Software and Documentation, and all copies thereof, shall remain the exclusive property of ESi and/or its third party licensors. All applicable rights to copyrights, trademarks, logos, patents and other intellectual property shall remain vested in ESi and/or its third party licensors. Licensee shall not claim, register, alter or modify, any interest in such copyrights, trademarks, patents or other intellectual property, nor shall Licensee nor attempt to do any of the foregoing. Licensee shall not translate any of the ESi trademarks into any other language or alphabet. (b) Notwithstanding. Section 9(a) if this Agreement, Licensee shall have title at all times to data input and output arising out of the use of the Software, and any computer programs developed by or for Licensee using output of the Software as input to another source, and which do not include any logic and code of the Software, and such shall remain the exclusive property of the Licensee. 10 Restrictions Except as expressly authorized in this Agreement, Licensee shall not rent, lease, loan, sell, sublicense, distribute, transfer, copy, reproduce, display, modify, provide commercial hosting services, time share or dispose of the Software or Documentation or any part thereof, use the Software to provide any services to third parties or otherwise use the Software and Documentation to generate commercial revenue. 11 Assignment. Licensee may not assign or otherwise transfer, in whole or in part, or in any other manner, any rights, obligations, or any interest in or under this Agreement without the prior written consent of ESi and any attempted assignment will be void. A merger or other acquisition by a third party will be treated as an assignment. ESi may at any time and without Licensee's consent assign all or a portion of its rights and duties under this Agreement to a company or companies wholly owning, owned by, or in common ownership with ESi. 12 Copying of Documentation. Licensee may make as many copies of the Documentation as necessary for Licensee's internal purposes, provided that the Licensee shall not modify or alter the content or appearance of the Documentation, modify or alter the appearance of any ESi trademark or logo in the Documentation, or eliminate any references to ESi, WebEOC® or other ESi Software in the Documentation, and provided that Licensee shall reproduce and distribute the ESi copyright and notices page contained in the Documentation with all such copies, and maintain the confidentiality of the copies in accordance with Section 8 above 13 Software Maintenance and Technical Support, Module Care Plans. Hosting Services (a) Licensee shall receive software maintenance, technical support and hosting services set forth in Exhibit B from ESi or its authorized agent during the Term, provided that Licensee is not in violation of this Agreement. (b) All Software Updates received by Licensee shall be subject to the terms of this Agreement. 14 Limited Warranty and Disclaimers. (a) ESi warrants that the Software, except Modules, will perform in accordance with the accompanying Documentation for a period of one (1) year from the first day of the month following installation, if ESi or Rev 01/13/2014 its authorized agent, associate or contractor performs the Software installation, or on the first day of the month after the Software is shipped, if ESi or its authorized agent, associate or contractor ships the Software to the Licensee. ESi warrants that the Module will perform in accordance with the accompanying Documentation for a period of ninety (90) days from the first day of the month following installation, if ESi or its authorized agent, associate or contractor performs the Software installation, or on the first day of the month after the Software is shipped, if ESi or its authorized agent, associate or contractor ships the Software to the Licensee. (b) If programming errors or defects do occur during this period and ESi is promptly notified in writing of the nature of the error, ESi will correct the error without charge. (c) ESi's entire liability and Licensee's exclusive remedy shall be, at ESi's option, either (a) correction of the error or (b) return of the license fee. This limited warranty does not cover errors attributable to accident, abuse or misapplication, alteration, operation outside the parameters specified in this Agreement or the Documentation, failure to install Updates provided during the warranty period, installation, training or programming provided by an anyone other than ESi or an ESi-certified technician, or other breach of this Agreement by Licensee. (d) ESi DISCLAIMS ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE SOFTWARE AND/OR ACCOMPANYING DOCUMENTATION. NO ORAL OR WRITTEN ADVICE OR INFORMATION PROVIDED BY ESi OR ANY OF ITS AGENTS, EMPLOYEES OR CONTRACTORS SHALL CREATE A WARRANTY, AND LICENSEE IS NOT ENTITLED TO RELY ON ANY SUCH ADVICE OR INFORMATION. ESi EXPRESSLY DISCLAIMS ANY WARRANTY THAT THE SOFTWARE WILL OPERATE UNINTERRUPTED OR FREE OF ERRORS. (e) The Software is an information management application. The software is not fault-tolerant and is not designed, manufactured, or intended for use or resale' in hazardous environments that require fail-safe performance such as in the operation of nuclear facilities, aircraft navigation or communications systems, air traffic control, emergency response, terrorism prevention or response, life support or weapons systems (collectively "High Risk Activities"), the failure of which could lead to death, personal injury, or severe physical or environmental damage. ESi EXPRESSLY DISCLAIMS ANY WARRANTY OF FITNESS FOR HIGH RISK ACTIVITIES. (f) To the extent permitted by law, Licensee agrees to indemnify, defend and hold ESi, its officers, directors, employees, agents, subcontractors, licensors, successors, and assigns harmless from and against any and all liability, losses, claims, expenses (including attorneys fees), demands or damages of any kind, including direct, indirect, special, punitive, incidental, or consequential damages, arising out of or in connection with the Licensee's use of the Software for High Risk Activities. 15 Limited Liability. EXCEPT WITH RESPECT TO ITS OBLIGATIONS UNDER SECTION 17 OF THIS AGREEMENT, ESi AND ITS LICENSORS' AGGREGATE LIABILITY ARISING FROM OR RELATING TO THIS AGREEMENT OR THE SOFTWARE OR DOCUMENTATION IS LIMITED TO THE TOTAL OF ALL SUMS PAID OR PAYABLE TO ESi FOR THE LICENSE. ESi AND ITS LICENSORS SHALL NOT IN ANY CASE BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL (INCLUDING LOST PROFITS OR REVENUE, LOST SOFTWARE, LOSS OF DATA, COSTS OF RECREATING LOST DATA, OR THE COST OF ANY SUBSTITUTE SOFTWARE OR EQUIPMENT), INDIRECT OR PUNITIVE DAMAGES EVEN IF ESi HAS BEEN ADVISED OF THE Rev 01/13/2014 POSSIBILITY OF SUCH DAMAGES, WHETHER UNDER THEORY OF WARRANTY, TORT, PRODUCTS LIABILITY OR OTHERWISE. 16 License Term and Termination. (a) The initial term of this Agreement shall be the Term set forth in Exhibit A and its effective date shall be the date set forth in the first paragraph of this Agreement. This Agreement shall automatically renew for successive one (1) year terms unless terminated in writing by either party. (b) Termination for Cause. Either party may terminate this Agreement, upon thirty (30) days written notice to the other, if a party materially violates any provision of this Agreement and fails to remedy such violation within thirty (30) days after written notice thereof. Failure to pay the fees outlined in this Agreement in a timely manner shall be deemed a material breach. Licensee acknowledges and agrees that ESi may seek equitable relief at any time to remedy a violation or threatened violation of the restrictions set forth herein regarding the use and protection of the Software and Documentation. (c) Termination for Convenience. After expiration of the initial Term, either party may terminate this agreement without cause upon sixty (60) days written notice. (d) Upon termination, Licensee shall immediately destroy the original and all copies of the Software and Documentation, or return them to ESi. If Licensee elects to destroy the Software and Documentation, Licensee shall provide a certificate of destruction to ESi within five (5) business days of the termination date. (e) If Licensee receives Hosting Services from ESi, the following termination provisions also apply upon termination of this Agreement for any reason: (i) Licensee access to Software and Hosting Services shall be suspended, (ii) Licensee shall immediately surrender to ESi any Internet protocol numbers, addresses or ESi-owned domain names assigned to Licensee in connection with the Hosting Services delivered hereunder; (iii) ESi shall copy Licensee data to a portable storage medium and ship to Licensee via couner or other traceable delivery service within ten (10) days of termination date unless other arrangements are requested by Customer within five (5) days of the termination date; (iv) Any and all Licensee data shall be overwritten, erased, encrypted or otherwise rendered unrecognizable upon confirmation from Licensee that Licensee data has been received in machine-readable format; and (v) Any Licensee requesting restoration of Hosting Services post -termination shall pay a S2,400 reinstatement fee and all applicable fees for requested services including data restoration, and shall be liable to pay any outstanding, undisputed amounts due ESi prior to such restoration of services. (vi) In the event of early termination of the Agreement, Licensee may request a rebate for services purchased and not performed. The unit of measure for calculating any rebate shall be weeks and shall be calculating using the following formula: (contract price/52 weeks) x number of weeks of service Customer would have received if the Agreement had been fully performed. In the event that ESi terminates the agreement for cause, ESi Rev 01/13/2014 shall retain the balance as liquidated damages. 17 Infringement of Patent and Other Proprietary Rights. (a) ESi represents to Licensee that it has no knowledge of any existing or potential claims that the Software or Documentation violates or infringes upon any patent, copyright, trade secret or other propnetary right of a third party. (b) ESi shall indemnify, defend and hold harmless Licensee from and against all claims, damages, losses, liabilities and expenses, including reasonable attorneys' fees, arising out of any claim by a third party asserting that the Software, Documentation, services or any use thereof, infringes such third party's patent, copyright, trademark, trade secret, confidentiality or other right, provided that Licensee notifies ESi in writing within a reasonable time after Licensee first receives written notice of the claim and gives ESi reasonable assistance, at ESi's cost, in the defense or settlement of the claim. If any such infringement, claim or action is brought or threatened, ESi will, at its sole option and expense. (a) procure for Licensee the right to continue using the Software; or (b) modify or amend the Software, provided that such modified Software will have substantially the same or comparable capabilities, or replace the Software with other software having substantially the same or comparable capabilities; or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and repay Licensee a portion, if any, of any license fees for the Software, on a pro rata basis. If terminated, the parties will be released from any further obligation under this Agreement, except for obligations that survive termination. 18 No Disabling Codes, Timers, Counters, or Other Limitations. Except for technology controls designed to monitor or enforce the terms of this Agreement, the Software shall not include or contain any disabling code, timer, clock, counter or other limiting design or routine which causes the Software to be erased, inoperable or otherwise incapable of being used in the full manner for which it was designed and licensed pursuant to this Agreement. 19 General Conditions. (a) Governing Law. This Agreement shall be governed by, and interpreted in accordance with, the laws of the State of Georgia (United States of America) regardless of application of choice of law rules or principles. This Agreement expressly excludes the United Nations Convention on Contracts for the International Sale of Goods. Unless otherwise elected by ESi at its option and in writing for a particular instance, the sole jurisdiction and venue for actions related to the subject matter hereof shall be the state or United States District Court having within its jurisdiction the location of ESi's principal place of business in Augusta, Georgia. Both parties consent to the jurisdiction of such courts and agree that process may be served in any manner allowed by the laws of the State of Georgia or of the United States. If Licensee acquires this License in a country other than the United States or its territories, local law may apply. The original language of this Agreement is English. In case of any discrepancies or conflicts between the English text version of this Agreement and any translation, the English version shall prevail. (b) Entire Agreement. This Agreement sets forth the entire understanding and agreement between Licensee and ESi and may be amended only in a writing signed by both parties. This Agreement supersedes any and all other Software license agreements, including without limitation, any License previously granted for any prior version of the Software. In the event of any inconsistency between the terms and conditions of this Agreement and the terms and conditions of the Documentation or other licenses delivered with the Software, the terms and conditions of this Agreement shall govern and control. NO VENDOR, DISTRIBUTOR, DEALER, RETAILER, SALES PERSON, OR OTHER PERSON IS Rev 01/132014 AUTHORIZED TO MODIFY THIS AGREEMENT OR TO MAKE ANY WARRANTY, REPRESENTATION OR PROMISE WHICH IS DIFFERENT THAN, OR IN ADDITION TO, THE TERMS OF THIS AGREEMENT. (c) Waiver. No waiver of any right under this Agreement shall be effective unless in a writing, signed by a duly authorized representative of ESi. No waiver of any past or present right arising from any breach or failure to perform shall be deemed to be a waiver of any future right arising under this Agreement. (d) Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be void or unenforceable for any reason, that provision shall be reformed to the extent necessary to make the language enforceable. All other provisions of this Agreement shall remain in full force and effect. 20 Export Controls (a) Licensee acknowledges that the Software and Documentation are subject to United States export laws. Licensee shall not, nor shall Licensee authorize or permit its directors, employees, consultants, independent contractors or other persons, to export, re-export, disclose or otherwise provide the Software and/or Documentation to any country unless an appropriate license, exemption or authorization has been obtained from the U S. Government. (b) Licensee expressly agrees that Licensee shall not export, re-export, barter, or otherwise provide or disclose the Software and Documentation, in whole or in part, to: (a) any country covered by any United States trade embargo; (b) any person listed on the United States Department of Treasury's list of Specially Designated Nationals; (3) any person or entity listed on the United States Department of Commerce Denied Persons List; (4) any person or entity listed on the United States Department of Commerce Unverified or Entity Lists; (5) any person or entity listed on the United States Department of State Debarred List; or (6) any person or entity where such export, re-export, barter, disclosure or provision violates United State export control law or regulation. Licensee represents and warrants that neither it nor its directors, employees, consultants, nor any other persons or entities who may gain access to the Software and Documentation through the Licensee, are persons or entities subject to such U.S. export controls. (c) Licensee agrees to defend, indemnify, and hold harmless ESi from and against any claim, loss, liability, damage or expense, including fines or legal fees incurred by ESi with respect to any of Licensee's export or re-export activities contrary to the foregoing instructions 21 U.S. Government Rights. (a) If Licensee is an agency, department, or other entity of the United States Government ("Government"), or funded by the United States Government, Licensee's use, duplication, reproduction, release, modification, disclosure or transfer of the Software, Documentation, technical specifications, or any related materials of any kind, including technical data, is restricted in accordance with Federal Acquisition Regulation ("FAR") 12.212 for civilian agencies, Defense Federal Acquisition Regulation Supplement ("DFARS") 227 7202 for military agencies and the equivalent regulations for the Department of Energy. The use of the Software and Documentation is further restricted in accordance with the terms of this Agreement, or any modification thereto. (b) The Software and Documentation are commercial computer software and commercial computer software documentation. Licensee shall ensure that each copy used or possessed by or for the Government is labeled with the following: "Manufacturer is ESi Acquisition, Inc., 823 Broad Street, Augusta, GA 30901. ALL RIGHTS RESERVED. PROPRIETARY PRODUCTS." For the purpose of any federal, Rev 01/13/2014 state or local law, Licensee agrees that the Software and Documentation are trade secrets and proprietary commercial products of ESi and/or its third party licensors and are not subject to disclosure. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed in duplicate originals by their duly authorized representatives as of the day and year set forth above. ESi Acquisition, n_"�. (". ) Indian Ri Couuun_ty/ ("Licensee") By: , By' Name: Title CFO Date: April 7, 2015 Mike Wallace APPROVED ounty dministrator APPROVED AS TO FO AND - S" Fla.'s ,SY WILLIAM... DEPUTYCOUNTYA +o Y Rev 01/13/2014 Name: Wesley S. Davis Title: Date: Chairman April 21, 2015 Attest: Jeffrey R. mith, Clerk o Comptrjr e De!' Clerk Court EXHIBIT A 1 Term The initial Term of this Agreement is three (3) years. 2 Licensed Software Licensee has licensed the following Software: Number of Licensed Machines Software 1 (hosted instance) WebEOC Professional v7.0 0 Training (internal use only) 0 Disaster Recovery Licensee also may install the Software to support "non -production" software development cycle activities: Number of Licensed Machines Purpose 0 Development/testing of Software Updates prior to placing in production (internal use only) 0 Training (internal use only) 0 Disaster Recovery 3. Authorized Number of Users Licensee may provide access to the following number of Administrators and Users: Administrators 3 Users 250 (inclusive of Administrators) 4. Surge Capacity Plan Surge Capacity Plan has been purchased for term: 5. Emergency Response Program Client has enrolled in the Emergency Response Program: Rev 01/13/2014 [ ] Yes [ X ] No [ ] Yes [ X ] No EXHIBIT B Software Maintenance and Technical Support; Hosting Services 1. Definitions For the purposes of this Exhibit, the following words have the meaning set forth below: (a) "Application Service Provider" means an entity that maintains a shared hardware environment for the purpose of hosting and maintaining software and data on behalf of customers. (b) "Availability" means Software site availability, or the capability for the customer's website to access and deliver ".html" formatted pages successfully to any permitted end user through an internet connection exclusive of processes, hardware and software beyond the control of ESi. (c) "Hosted System" means the combination of hardware, software and networking components used by the Application Service Provider to deliver the Hosting Services. (d) "Hosting Services" means the installation and management of specified software applications by an Application Service Provider in a shared environment on behalf of a customer and exclusively for the benefit of permitted users of the Software. (e) All other defined terms in this Exhibit B shall have the same meaning set forth in Section 2 of the Agreement, except where otherwise stated in this Exhibit. 2. Scope of Services ESi shall provide' the following services to address Licensee's software maintenance, technical support and Software hosting needs: (a) ESi, acting as an Application Service Provider, shall provide Hosting Services to Licensee according to the provisions set forth in the Agreement. ESi shall notify Licensee promptly upon creation of Hosting Services account and provide Licensee with all information required to access such account. ESi, at its sole discretion, may provide and maintain such Hosted System and/or deliver such Hosted Services internally or through a qualified subcontractor. (b) ESi shall provide and maintain the facilities, hardware, and networking components necessary to operate a high -availability, shared ASP Environment for the benefit of Licensee. (c) ESi shall perform, at its convenience and after notice to Licensee, scheduled updates of Software as new releases become available. Such updates shall be scheduled to enable the simultaneous update of Software licensed to Licensee and all other ESi-hosted customers. Scheduled updates to Software, except for Modules, shall include correction releases (i.e. patches provided to correct software anomalies), point releases (i.e. modifications to current generation of software including enhancement and improvements), and level releases (i.e. new releases or new generation of software). ESi also shall install updates and security patches for other software, including operating system software, installed on hardware used to deliver Hosting Services. For Modules, ESi shall provide Licensee any updates released by ESi to correct errors affecting the operation of the Module, whether such error is caused by the Module itself or by an error in the WebEOC software, and any updates required to maintain compatibility with the WebEOC software. ESi shall not provide for any enhancements to the Module. Rev 01/13/2014 (d) ESi shall perform, as needed, emergency security updates to the Hosted System and Software to protect the ASP Environment from newly identified and widespread threats to the internet or internet- based services posed by worms, viruses and Trojans, or to address other vulnerabilities, with little or no notice to Licensee. Such updates shall be treated as scheduled outages and the outage period shall not be considered as service downtime in any performance assessment that may be conducted. (e) ESi shall provide and maintain a redundant ASP Environment at a location that is geographically separated from primary ASP Environment to ensure continuity of Software access and operation in the event of any unforeseen outage, disaster or other event that may interrupt service at the primary location. Failover to the redundant ASP Environment is a manual process and service will be activated by ESi immediately upon notification of malfunction, unavailability or failure of primary ASP Environment. (f) ESi shall notify Licensee in writing, via electronic mail or facsimile, of any planned service outages, i.e. for the purpose of performing Software updates or testing, or other inability to perform the services outlined in this Agreement. (g) ESi shall schedule, perform and maintain a duplicate ("backup") record of Licensee's data. ESi shall perform hourly SQL transaction log backup to disk, daily full backup to tape, and weekly full backup of data to a central data library. Data backups are limited to SQL database server files (i.e. those files having a .mdf or .ldf file extension). Data backups shall be retained on-site for one week and off-site for three additional weeks. (h) ESi shall provide Licensee with technical environmental support services. Such support services shall be available 24 hours per day, 7 days per week. Technical support services shall include assistance with problems related to ASP Environment, operating system and related software licensed by ESi on behalf of Licensee, data access, Hosted System access or similar problems. Technical support may be accessed by Licensee by calling the Technical Support Help Desk at (877) 771-0911 or paging the on-call technician at (888) 243-7204. International customers access Customer Support by calling (706) 823- 0911 or paging the on-call technician at (803) 240-0016. (i) ESi shall make routine software support available to Licensee by telephone, electronic mail and, when required, remote session support, Monday through Friday, during the regular business hours of 0830 to 1700 Eastern Standard Time (excluding holidays). Routine software support includes assistance with the use and configuration of the software; assistance with identification and resolution of errors or defects assistance with application and use of new releases; general support for Board Builder and boards built by client, ESi or an ESi-certified technician; and access to WebEOC best practices, community -use status boards, "help" resources and other content made available through www.webeoc.com, a "customer only" web forum. Software support may be accessed by Customer by calling the Technical Support Help Desk at (877) 771-0911 or by electronic mail at support@esi911.com. International customers access Customer Support by calling (706) 823-0911. (j) ESi shall use its best efforts to correct any and all verified, reproducible errors that materially affect the operation and performance of the Software. Licensee shall notify ESi of such errors in writing, via post, facsimile or electronic mail, and such written notice shall include a description of each claimed error and a statement of the conditions under which the claimed error occurred. ESi shall use the information provided by Licensee to verify the claimed error and once such error is verified, ESi shall work to correct the error or, if ESi determines that such error cannot be corrected within the current release version of the Software, to develop a "work around" for that error. In the event that an error is resolved through implementation of a "work around," ESi will use best efforts to correct or eliminate the error in the next release of the Software. Rev 01/13/2014 (k) Services to be provided by ESi under this Agreement do not include assistance with third party products; training; installation of plug -ins, boards or modules; API support; or board building; or maintenance, repair or correction of errors, defects or other operational or performance defects caused by Software configuration, modification, enhancement or programming provided by any party other than ESi or an ESi-certified technician. Any professional services described in this Section 2(k), or services required to repair or correct the errors and defects described in this Section 2(k), shall be provided on a fee -for -services basis at rates consistent with the ESi published price list in effect at the time services are rendered. (1) Licensee may request performance of additional services by ESi. Such services shall be invoiced separately by ESi at the current published rate for labor and actual costs for materials and travel, if applicable. Rev 01/13/2014 3. Licensee Obligations (a) The Licensee shall maintain, at Licensee's expense, a secure high speed internet connection through which to access its hosted Software. (b) The Licensee shall appoint a designated point of contact and two alternate points of contact for its interactions with ESi. Licensee shall provide ESi with the name, job title, physical address, telephone number, facsimile number and electronic mail address for each of the contact persons. Licensee shall keep such contact information up-to-date and promptly notify ESi, in writing via electronic mail, of any changes. (c) The Licensee shall use reasonable security precautions in connection with the use of services provided under this Agreement. (d) The Licensee is responsible for any and all use and access to the Hosted System and Hosting Services by its employees, agents, contractors and permitted users of the Software and Hosting Services. (e) The Licensee shall make best efforts to notify ESi in writing, via electronic mail or facsimile, of any planned non -emergency use of its Software, such as the occurrence of training sessions, drills and exercises, to aid ESi with the planning of any scheduled outages. (f) The Licensee shall promptly notify ESi Customer Support of any identified Hosting Services outage that impairs Customer access to its Software so that ESi may manually activate the redundant ASP Environment and immediately commence work to restore service to the primary ASP Environment. 4. Service Level Assurances; Service Warranty (a) All support calls received from Licensee shall be logged and tracked in the ESi customer support system as a "Customer Support Ticket." Each Customer Support Ticket shall include an initial assessment of the Severity Level of the request for support: Severity Level Definition ASP 1 Hosting Services are not accessible to Licensee via a public internet connection. ASP 2 Hosting Services are accessible, but performance is reduced or impaired. Software, Severity 1 Any and all errors which, individually or collectively with other errors, prevent Licensee or permitted users of Licensee from performing useful work or are deemed by Licensee or any of its permitted users to be fatal to the operation of the Software. Software, Severity 2 Any and all errors which, individually or collectively with other errors, disable major functions of the Software from being performed and are deemed by Licensee or any of its permitted users to have a severe impact on the operation of the Software. Rev 01/13/2014 Software, Severity 3 Any and all errors which, individually or collectively with other errors, disable only certain non-essential functions of the Resolution Software and are deemed by Licensee or any of its users to have degraded operation of the Software. Software, Severity 4 All other errors not appropriately classified as Severity 1, Severity 2 or Severity 3 and are deemed by Licensee or its permitted user as having a limited impact on the operation of the Software. (b) ESi shall make all commercially reasonable efforts to resolve Customer Support Tickets in accordance with the following schedule: Rev 01/13/2014 Acknowledgement of Customer Support Ticket Resolution ASP1 Within 30 minutes Failover to redundant ASP environment and/or correction of error as soon as possible. ASP2 Within 2 hours Failover to redundant ASP environment and/or correction of error as soon possible. Software, Severity 1 Within 1 hour Delivery by ESi of a patch, workaround or temporary fix and revised documentation to Licensee within 1 business day;and Delivery by ESi of the object code fix or other permanent fix and revised documentation to Licensee within 10 business days. Software, Severity 2 Within 4 hours Delivery by ESi of a patch, workaround or temporary fix and revised documentation to Licensee within 3 business days; and Delivery by ESi of the object code fix or other permanent fix and revised documentation to Licensee within 20 business days. Software, Severity 3 Within 1 business day Delivery by ESi of a patch, workaround or temporary fix and revised documentation to Licensee within 10 business days; and Delivery by ESi of the object code fix Rev 01/13/2014 (c) ESi represents and warrants that service availability of the ASP Environment will meet a "high availability" measure of 99.9 % system "up time," excluding scheduled outages. If ESi fails to meet this availability criteria within any month, upon Licensee request, ESi shall extend the term of this Agreement for one day for each day, or portion thereof, the ASP Environment is verified by Licensee and ESi to be unavailable in that month, up to a maximum of 30 days at no additional charge. (d) ESi shall only be responsible for performance of components of the Hosted System and Services under its control. ESi shall not be responsible for performance deficiencies caused by processes, hardware and software beyond its control including, but not limited to, information transmission delays due to excessive internet traffic, internet outages, or failure of Licensee to perform its obligations under this Agreement. (e) The warranties set forth in this Section shall be void if any breach of this warranty or failure of the hosting environment or Software is caused by unauthorized use, improper use or modification to Software made by Licensee or its authorized users. 5. Limitations on Use of Services (a) Access to the Hosted System may not be rented, leased, sold, sub -leased, assigned or otherwise transferred for value by Licensee to any third party. (b) Hosted System and Hosting Services are provided to support the Software which is an information management tool. Hosting Services are not guaranteed to be fault-tolerant or to provide fail- safe performance. Hosting Services are not appropriate for use in ultra -hazardous environments where failure of the Hosted System or ASP Environment may lead to bodily injury, death or destruction of property. (c) Installation of software applications in ASP Environment is limited to software licensed to Licensee by ESi and software supplied by ESi either as a component of the Hosted System or to support delivery of Hosting Services. (d) The Licensee shall not conduct any load testing, performance testing or any other test of the Hosted System which may degrade performance or limit or adversely impact availability of the ASP Environment for other customers. Rev 01/13/2014 or other permanent fix and revised documentation to Licensee within 45 business days. Software, Severity 4 Within 5 business days Delivery by ESi of a patch, workaround or temporary fix and revised documentation to Licensee within 30 business days; and Delivery by ESi of the object code fix or other permanent fix and revised documentation to Licensee as appropriate. (c) ESi represents and warrants that service availability of the ASP Environment will meet a "high availability" measure of 99.9 % system "up time," excluding scheduled outages. If ESi fails to meet this availability criteria within any month, upon Licensee request, ESi shall extend the term of this Agreement for one day for each day, or portion thereof, the ASP Environment is verified by Licensee and ESi to be unavailable in that month, up to a maximum of 30 days at no additional charge. (d) ESi shall only be responsible for performance of components of the Hosted System and Services under its control. ESi shall not be responsible for performance deficiencies caused by processes, hardware and software beyond its control including, but not limited to, information transmission delays due to excessive internet traffic, internet outages, or failure of Licensee to perform its obligations under this Agreement. (e) The warranties set forth in this Section shall be void if any breach of this warranty or failure of the hosting environment or Software is caused by unauthorized use, improper use or modification to Software made by Licensee or its authorized users. 5. Limitations on Use of Services (a) Access to the Hosted System may not be rented, leased, sold, sub -leased, assigned or otherwise transferred for value by Licensee to any third party. (b) Hosted System and Hosting Services are provided to support the Software which is an information management tool. Hosting Services are not guaranteed to be fault-tolerant or to provide fail- safe performance. Hosting Services are not appropriate for use in ultra -hazardous environments where failure of the Hosted System or ASP Environment may lead to bodily injury, death or destruction of property. (c) Installation of software applications in ASP Environment is limited to software licensed to Licensee by ESi and software supplied by ESi either as a component of the Hosted System or to support delivery of Hosting Services. (d) The Licensee shall not conduct any load testing, performance testing or any other test of the Hosted System which may degrade performance or limit or adversely impact availability of the ASP Environment for other customers. Rev 01/13/2014 6. Information Security and Business Continuity (a) ESi shall perform all services hereunder consistent with its ASP Information Security Program ("Security Program"). Such Security Program shall set forth, at a minimum, ESi policies and procedures with respect to data classification and management, data and system back-ups, account and password management, physical security and access, network configuration and access, change management, media management and destruction, security training and awareness, and continuity of ASP Environment operations. (b) Any sub -contractors used to deliver, or support delivery of the Hosting Services shall maintain an information security and business continuity program which is supportive of the Security Program. (c) A copy of the Security Program is available, upon request and after execution of the ESi Non - Disclosure Agreement. (d) Hosting Services are provided in a shared environment. Customization of information security, data management and/or business continuity practices to meet Licensee -specific needs is not supported. Rev 01/13/2014 EXHIBIT C Payment Schedule Description Amount Initial purchase, services, and year 1 software support / maintenance S54,500.00 Year 2 software support / maintenance $26,265.00 Year 3 software support / maintenance $27,052.95 This project will be intitiated upon execution of the End User License Agreement. Software support fees are prepaid annually. All invoices are payable NET30. Rev 01/13/2014