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World Advancement of Technology for EMS; 2015-04-22;
Version 4.0 Software License Agreement Page 1 of 22 THIS SOFTWARE LICENSE AGREEMENT (this "Agreement") is entered into as of HiiJL f iS' (the "Effective Date") by and between World Advancement of Technology for EMS and Rescue, Inc., a Delaware corporation with offices at 1748 San Diego Ave, San Diego, CA 92110 ("CONTRACTOR"), and the CUSTOMER with offices at 1635 Faraday Avenue, Carlsbad, CA 92008 ("CUSTOMER"). In consideration of the mutual agreements contained herein and intending to be legally bound hereby, CONTRACTOR and CUSTOMER hereby agree to all of the following terms and conditions: 1. Definitions. "Documentation" means the manuals, documents and other related materials describing the Software listed in Exhibit A. "Error" means a failure of the Software to conform to the specifications set forth in the Documentation, resulting in the inability to use, or material restriction in the use of, the Software. "Proprietary Rights" means copyright, patent, trademark, trade secret and all other intellectual property and proprietary rights whatsoever, howsoever arising, existing now or in the future. "Prerequisites" means the prerequisites set forth in Exhibit B. "Software" means the software, in object code form, described in Exhibit A. "Update" means either a software modification or addition that, when made or added to the Software, corrects an Error, or a procedure or routine that, when observed in the regular operation of the Software, eliminates the practical adverse effect of the Error. "Upgrade" means a revision of the Software released by CONTRACTOR to its end user CUSTOMERS generally, during the term of this Agreement, to add new and different fiinctions or to increase the capacity of the Software. An "Upgrade" does not include the release of a new product or added features for which there may be a separate charge. 2. Delivery. At agreement execution CONTRACTOR will comply with the following deliverables and timelines: deliver one copy of Documentation in electronic form within 2 weeks of agreement execution; install Software in object code form on CUSTOMER'S test and production instances hosted and maintained by CONTRACTOR within 5 months of agreement execution (at which time CUSTOMER shall "go live" with Software); the post "go live" migration of data from the CUSTOMER'S existing FieldSaver system, within 7 months of agreement execution. The foregoing shall be used by CUSTOMER solely in accordance with the terms of this Agreement. 3. Support Services. Subject to CUSTOMER'S compliance with the terms and conditions of this Agreement, CONTRACTOR will provide support services under this Agreement in accordance with Exhibit C. 1748 San Diego Avenue, San Diego, CA 92110 • (619) 955-6488 / fax (619) 299-9946 Version 4.0 Software License Agreement Page 2 of 22 4. License Grant and Restrictions. Software and Documentation. Subject to the terms and conditions of this Agreement, CONTRACTOR hereby grants to CUSTOMER, for the term of this Agreement, a non- exclusive, non-transferable, non-sublicensable, limited license to use the Software and related Documentation for its internal business purposes. The maximum number of active devices supported by the Software is set forth on Exhibit B. CONTRACTOR reserves all rights not expressly granted to CUSTOMER hereunder and CUSTOMER will acquire no such rights, whether by implication, estoppel, or otherwise. Proprietary Rights. CUSTOMER acknowledges that, as between the parties, (i) CONTRACTOR is the exclusive licensee with respect to the Software and all Documentation; (ii) CONTRACTOR has all right, title, and interest to sublicense the Software and all Documentation as set forth in this Agreement; (iii) CUSTOMER has no ownership interest in the Software or Documentation, regardless of any participation or collaboration by CUSTOMER in the design, development or implementation of any such Software or Documentation; (iv) As between the parties, CONTRACTOR is the owner and holder of all Proprietary Rights in its capacity as a master licensee and sub-licensor of the Software and Documentation, and reserves all such Proprietary Rights to itself except as expressly licensed to CUSTOMER hereunder. The Software has been licensed and not sold to CUSTOMER. Proprietary Notices. CUSTOMER shall not remove any copyright, patent, trademark or other proprietary or restrictive notice or legend contained or included in any of the Software or Documentation, and CUSTOMER shall reproduce and copy all such notices and legends on all copies of the Software and Documentation that are permitted to be made hereunder. License Restrictions. Nothing in this Agreement shall be construed as an implied grant to CUSTOMER of any right to, and CUSTOMER shall not, and shall not permit any third party to: (i) use or reproduce any of the Software in source code form, (ii) distribute, disclose or allow use of any of the Software or Documentation by or for the benefit of any third party, whether through any timesharing service, service bureau, network or by any other means, (iii) decompile, disassemble, or otherwise reverse engineer or attempt to reconstruct or discover any source code or underlying ideas or algorithms of any of the Software by any means whatsoever, (iv) copy (except for one copy for back-up purposes), modify or alter any of the Software or Documentation in any manner whatsoever, or (v) assist or encourage any third party to take any action prohibited by this Agreement. CUSTOMER shall cause its employees (including, without limitation, systems administrator) to comply with the terms and conditions of this Agreement. CUSTOMER shall cooperate with CONTRACTOR, and shall render all reasonable assistance requested by CONTRACTOR, to assist CONTRACTOR in preventing and identifying any unauthorized use of or access to the Software or Documentation or any breach of this Agreement. 5. Fees and Payments. Fees. CUSTOMER shall pay to CONTRACTOR the license fees and expenses as set forth in Exhibit B ("Fees"). Taxes. All Fees are exclusive of any state, local, and other taxes and charges (other than income taxes payable by CONTRACTOR) applicable to the licensing, installation, support, or use of the Software. © • 1748 San Diego Avenue, San Diego, CA 92110 • (619) 955-6488 / fax (619) 299-9946 Version 4.0 Software License Agreement Page 3 of 22 Payments. All payments due under this Agreement shall be payable by CUSTOMER within thirty (30) calendar days after receipt by CUSTOMER of CONTRACTOR'S invoice. Payments remitted after such thirty (30) calendar day period shall bear interest at one and one- half percent (1.5%) per month or, if less, the maximum rate allowed by law. All monthly service payments will begin no later than thirty (30) calendar days after system acceptance by CUSTOMER. CUSTOMER'S timely payment of all sums due is a condition precedent to CONTRACTOR'S obligations under this Agreement. Except as explicitly provided herein, all Fees paid hereunder are non-refundable. 6. Confidentiality. Definition. "Confidential Information" means all information regarding a party's business or affairs, including, without limitation, business concepts, processes, methods, systems, know-how, devices, formulas, prices, CUSTOMER information, CUSTOMER lists, or other information, whether in oral, written, or electronic form, either: (a) designated as confidential or (b) that is disclosed under circumstances or is of a nature such that a reasonable person would know it is confidential. For clarity, the Software and Documentation is CONTRACTOR'S Confidential Information. The following information will not be considered Confidential Information: (i) information that is or was at the time it was disclosed, or becomes after disclosure, without fault of the party obligated to keep it confidential, generally available to the public; (ii) information with regard to the other party that is or was already known by a party at the time of its disclosure, as evidenced by the party's written records; (iii) information that is or becomes available to a party on a non-confidential basis from a source that is not bound by a confidentiality agreement or other obligation of confidentiality relating to such Confidential Information; and (iv) information that was independently developed by a party without use of the Confidential Information. Obligations. Any Confidential Information of one party (the "Disclosing party") received by the other party (the "Receiving party") under this Agreement shall be used, disclosed, or copied, only for the purposes of, and only as necessary to perform under, this Agreement. The Receiving party shall use the same degree of care as it uses to protect its own Confidential Information of a similar nature, but no less than reasonable care. Notwithstanding anything to the contrary in this Section, a party may disclose the Confidential Information to its CONTRACTOR'S who: (i) have a need to know such Confidential Information for purposes of carrying out this Agreement but only to the extent that such Confidential Information is needed to perform their obligations under this Agreement and (ii) have agreed in writing in advance to be bound by a written confidentiality agreement reasonably acceptable to the other party. Further, either party may disclose the terms of this Agreement to its board of directors or other similar governing body, its attorneys and accountants, and potential acquisition partners or funding sources, provided that such third parties are under written duties of confidentiality. The Receiving party shall notify the Disclosing party immediately in the event of any unauthorized use, disclosure, or publication of any Confidential Information. Either party shall have the right to disclose Confidential Information as required by law or legal process or under the applicable rules of a securities market or exchange; provided, however, that the disclosing party shall use reasonable efforts to give the other party a reasonable opportunity to intervene to prevent such disclosure or to obtain a protective order, and that any Confidential Information so disclosed otherwise remains subject to the confidentiality obligations set forth in this Section. However, nothing in this Agreement shall be construed so as to in any way prevent the CUSTOMER from © • 1748 San Diego Avenue, San Diego, CA 92110 • (619) 955-6488 / fax (619) 299-9946 Version 4.0 Software License Agreement Page 4 of 22 disclosing or releasing any Confidential Information pursuant to a subpoena, court order, civil, criminal, or administrative discovery request, or under the Public Records Act, Government Code § 6250 et seq.. Freedom of Information Act or similar provision of state or federal law. Further, notwithstanding any other provision in this Agreement, it shall not be considered a breach of this Agreement, nor shall any liability attach, nor shall injunctive or equitable relief be sought or awarded, should the CUSTOMER or any of its officers, directors, employees and/or agents, disclose or release any Confidential Information pursuant to a subpoena, court order, civil, criminal or administrative discovery request, or under the Public Records Act, Government Code § 6250 et seq.. Freedom of Information Act or similar provision of state or federal law, even if such request, subpoena or court order is found, held or determined to be invalid or inapplicable in any way. 7. Reserved 8. Reserved 9. Term and Termination. Term. This Agreement shall commence upon the Effective Date and shall continue in full force and effect thereafter for a period of one (1) year unless terminated in accordance with Section 9 (Termination). Thereafter, this Agreement shall automatically renew for successive one (1) year terms unless either party gives ninety (90) days advance written notice of termination prior to the end of the then-current term of the Agreement. Termination. In the event of the CONTRACTOR'S failure to prosecute, deliver, or perform the Services, CUSTOMER may terminate this Agreement for nonperformance by notifying CONTRACTOR by certified mail of the termination. If CUSTOMER decides to abandon or indefinitely postpone the work or services contemplated by this Agreement, CUSTOMER may terminate this Agreement upon written notice to CONTRACTOR. Upon notification of termination, CONTRACTOR has five (5) business days to deliver any documents owned by CUSTOMER. Either party upon tendering thirty (30) days written notice to the other party may terminate this Agreement. CONTRACTOR will be paid for work performed to the termination date; however, the total will not exceed the lump sum fee payable under this Agreement. Events Upon Termination. Upon any termination of this Agreement for any reason, CUSTOMER shall immediately (i) cease all use of the Software and Documentation (ii) return to CONTRACTOR all copies of the Software and Documentation then in CUSTOMER'S possession or control; and (iii) certify to CONTRACTOR in writing that it has retained no copies of the Software. Upon any termination of this Agreement, CONTRACTOR shall invoice CUSTOMER for all accrued Fees, and CUSTOMER shall pay the invoiced amount immediately upon receipt of such invoice. CONTRACTOR will reimburse CUSTOMER a pro-rated amount for any remaining months of paid annual maintenance and support fees. Within 90 days of any termination of this Agreement, CONTRACTOR will provide CUSTOMER an electronic copy of CUSTOMER'S data in either a NEMSIS 3 format, or SQL Database format. CONTRACTOR will assist CUSTOMER in validating that CUSTOMER can successfully access CUSTOMER'S data. Once CUSTOMER has acknowledged receipt of its data, CONTRACTOR will destroy any Ci^ 1 UiVii^K datajnjy^^^j^y^^^gl^^^o^^^^^ll^^ ^ft^^a3ftS^^!g9^)^-9946 Version 4.0 Software License Agreement Page 5 of 22 Agreement. In the event of termination of this Agreement for any reason, the provisions of Sections I, 4 (Proprietary Rights) & (License Restrictions), 4, (Events Upon Termination), 9 (CONTRACTOR'S Obligations), 4, 6 shall survive. 10. Limited Warranties and Disclaimer. Software Warranty. CONTRACTOR warrants that, for a period of ninety (90) days after the Delivery Date (the "Warranty Period"), the Software shall conform materially to the applicable Documentation. If, during the Warranty Period, CUSTOMER discovers that any Software fail materially to conform to the warranty provided in this Section, CUSTOMER shall give CONTRACTOR written notice of such nonconformance promptly after such discovery (and, in any event, no later than five (5) business days after expiration of the Warranty Period). CUSTOMER'S sole and exclusive remedy and CONTRACTOR'S sole and exclusive liability for a breach of the warranty provided in this Section shall be for CONTRACTOR to use commercially reasonable efforts to repair or replace the Software without charge, or if, after such commercially reasonable efforts, CONTRACTOR does not repair or replace the non-conforming Software, CONTRACTOR shall refund to CUSTOMER the Fees paid for the Software and this Agreement shall terminate. Exclusions. The warranties set forth in Section 10 (Software Warranty) do not apply if alleged breach of warranty is based in whole or in part on (i) modifications to the Software or Documentation made by CUSTOMER or a third party; (ii) use of the Software or Documentation in combination with a product not supplied by CONTRACTOR; (iii) use of the Software other than in accordance with this Agreement or the Documentation; (iv) damaged from improper environment, abuse, misuse, accident or negligence; or (v) failure to use any Updates or Upgrades provided to CUSTOMER. Authority. Each party represents and warrants that it has full power and authority to enter into this Agreement. Each party further represents that it has not entered into nor will it enter into any agreements that would conflict with its obligations hereunder or render it incapable of satisfactorily performing hereunder. DISCLAIMER. OTHER THAN THE FOREGOING WARRANTIES, CONTRACTOR. MAKES NO REPRESENTATIONS OR WARRANTIES TO ANY PERSON OR ENTITY WITH RESPECT TO THE SOFTWARE, DOCUMENTATION OR ANY OTHER MATERIAL OR SERVICES PROVIDED BY CONTRACTOR. HEREUNDER. FURTHER, CONTRACTOR. DOES NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS REGARDING THE USE, OR THE RESULTS OF THE USE, OF THE SOFTWARE, DOCUMENTATION OR ANY INFORMATION CONTAINED THEREIN OR OTHERWISE PROVIDED PURSUANT TO THIS AGREEMENT, OR ANY SERVICES, IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, SECURITY, OR OTHERWISE. CONTRACTOR. DOES NOT WARRANT THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED, FAULT-TOLERANT, OR ERROR-FREE. WITHOUT LIMITING THE FOREGOING, CONTRACTOR. SPECIFICALLY DISCLAIMS ALL WARRANTIES NOT STATED HEREIN AND ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. 1748 San Diego Avenue, San Diego, CA 92110 • (619) 955-6488 / fax (619) 299-9946 Version 4.0 Software License Agreement Page 6 of 22 11. Indemnification. CONTRACTOR'S Obligation. CONTRACTOR shall indemnify, defend and hold harmless CUSTOMER and its officers, employees and agents from and against all costs, losses, damages, liabilities, and expenses (including reasonable attorneys' fees) arising from a third-party claim of infringement by the Software or Documentation of any third party's copyrights or trademarks or misappropriation of a trade secret. In the event of such a claim, CONTRACTOR may, at its sole option and expense, either (i) procure for CUSTOMER the rights necessary to continue using the Software or Documentation or (ii) replace or modify the same so that it no longer infringes or misappropriates the third party's rights. If CONTRACTOR, in its sole discretion, determines that neither of these options is commercially feasible, CONTRACTOR may terminate this Agreement for the affected Software. The indemnity set forth in this Section 11 shall be CUSTOMER'S sole and exclusive remedy and CONTRACTOR'S sole and exclusive liability for any claim of infringement or misappropriation in connection with the subject matter of this Agreement. CONTRACTOR'S indemnification obligations under Section 11 (CONTRACTOR'S Obligation) are contingent upon (i) CUSTOMER giving CONTRACTOR prompt written notice of such claim, (ii) CUSTOMER cooperating with CONTRACTOR in the defense and settlement thereof, and (iii) CONTRACTOR having an opportunity to assume control of such defense. CONTRACTOR shall not be responsible for or bound by any settlement that it does not approve in writing. Exclusions. CONTRACTOR'S indemnification obligations under Section 11 (CONTRACTOR'S Obligation) shall not apply where the claim is based in whole or in part on (i) modifications to the Software or Documentation made by CUSTOMER; (ii) use of the Software or Documentation in combination with a product not supplied by CONTRACTOR; (iii) use of the Software other than in accordance with this Agreement or the Documentation; or (iv) failure to use any Updates or Upgrades provided to CUSTOMER. 12. LIMITATION OF LIABILITY. CONTRACTOR SHALL NOT BE LIABLE TO CUSTOMER FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY OR SPECIAL DAMAGES ARISING OUT OF, RELATING TO, OR CONNECTED WITH THIS AGREEMENT, OR FOR ANY LOST DATA OR LOST PROFITS, REGARDLESS OF THE CAUSE OF ACTION ON WHICH THEY ARE BASED, EVEN IF CONTRACTOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OCCURRING. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, CONTRACTOR SHALL NOT BE LIABLE TO CUSTOMER OR END-USERS UNDER THIS AGREEMENT FOR ANY CLAIM ARISING FROM, RELATING TO, OR CONNECTED WITH THE SOFTWARE, DOCUMENTATION, ANY SERVICES OR ANY OTHER SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY AMOUNTS, IN THE AGGREGATE, IN EXCESS OF THE TOTAL AMOUNT OF FEES ACTUALLY PAID BY CUSTOMER TO CONTRACTOR HEREUNDER. 13. Publicity. CONTRACTOR shall be entitled to disclose and publicize, in the form of CUSTOMER lists and on its web site, marketing materials and otherwise, the identity of CUSTOMER as a client of CONTRACTOR and display CUSTOMER'S logo on its web site. Neither party shall issue a general press release disclosing the existence of this Agreement and naming the other party without the prior written consent of the other party; provided, however, that the parties agree to issue a mutually acceptable press release upon execution of this Agreement. © " 1748 San Diego Avenue, San Diego, CA 92110 • (619) 955-6488 / fax (619) 299-9946 Version 4.0 Software License Agreement Page 7 of 22 14. Export Controls: U.S. Government Restricted Rights. Export. Before using, sublicensing, or otherwise distributing the Software or Documentation outside the United States (which CUSTOMER shall not do without CONTRACTOR'S prior written permission), CUSTOMER shall: (a) take reasonable precautions to protect the proprietary rights of CONTRACTOR in each country in which the Software is to be used, sublicensed, or otherwise distributed; (b) fully comply with all then current regulations of the United States Office of Export Administration and other applicable governmental agencies; and (c) fully comply with all then current and applicable regulations of any government in whose country the Software is used, sublicensed, or distributed pursuant to this Agreement. The obligations of CONTRACTOR under this Agreement to license or otherwise deliver the Software is subject to compliance by CUSTOMER with applicable laws, rules, and regulations of the United States Office of Export Administration and other applicable governmental agencies. Restricted Rights. If the Software or Documentation is licensed by an agency of the United States Government subject to the DEAR, the Software and Documentation is commercial computer software and commercial computer software documentation under DEAR 227.7202 (or any successor regulation having similar effect) and the Government has only the rights specified in this Agreement. For other agencies of the United States Government, the Software and Documentation is restricted computer software and is provided with the rights under paragraph (c) of the Commercial Computer Software - Restricted Rights clause at FAR 52.227-19 (June 1987) or any successor provision having similar effect, and such a licensee acknowledges that it is not feasible to affix the notice set out in paragraph (c)(4) of that clause. 15. Software Escrow. Within three months of executing this agreement, CONTRACTOR shall deposit in escrow the latest version of the source code for the Software listed in Exhibit B of this Agreement with a third party escrow agent. CONTRACTOR shall add CUSTOMER as a named Beneficiary to its Escrow Agreement with the Escrow Agent. CONTRACTOR shall notify CUSTOMER of any change in the identity of the Escrow Agent, any termination or cancellation of the Escrow Agreement, and any material modification of the Escrow Agreement. In accordance with the terms and conditions of the Escrow Agreement, CONTRACTOR agrees that CUSTOMER shall have the right to obtain one (1) copy of the source code for the Software from the Escrow Agent upon any occurrence of the following circumstances, uncorrected for more than thirty (30) days: (a) an order is made or an effective resolution passed for CONTRACTOR'S winding-up or liquidation, or if a petition is filed for the winding-up of CONTRACTOR and such petition is not stayed, withdrawn or dismissed within thirty (30) days; (b) CONTRACTOR becomes insolvent; or (c) CONTRACTOR has a trustee in bankruptcy or general receiver appointed for its business or property. For clarity, if CUSTOMER receives a copy of the Software source code in accordance with this Section, CUSTOMER shall have a non-exclusive, perpetual, worldwide, fully paid-up, irrevocable royalty-free right and license to use and make copies of such source code for internal distribution to maintain the Software in accordance with this Agreement. © • 1748 San Diego Avenue, San Diego, CA 92110 • (619) 955-6488 / fax (619) 299-9946 Version 4.0 Software License Agreement Page 8 of 22 Notwithstanding the foregoing, the parties acknowledge and agree that CONTRACTOR shall be relieved of its obligations pursuant to the Escrow Agreement if CUSTOMER fails to keep current on support and maintenance for the Software. 16. General. Injunctive Relief. CUSTOMER acknowledges and agrees that the Software, and CONTRACTOR'S intellectual property rights therein, are of a unique and extraordinary character and that the unauthorized use thereof would cause CONTRACTOR irreparable harm, which could not be adequately remedied by monetary damages. Accordingly, if CUSTOMER breaches or threatens to breach any of the provisions of Section 4 or 6 or otherwise infringes or threatens to infringe CONTRACTOR'S intellectual property rights, CONTRACTOR shall have the right to obtain injunctive or other equitable relief on an expedited basis, without the need to post a bond or other security. Assignment. CUSTOMER shall not have the right to assign, transfer, or subcontract any obligations or benefit under this Agreement, by operation of law or otherwise, without the prior written consent of CONTRACTOR, and any such attempted transfer shall be void. CONTRACTOR will have the right to freely assign this Agreement in whole or in part. In the event of CONTRACTOR'S assignment, CONTRACTOR shall provide reasonable notice of such assignment to the CUSTOMER; and CUSTORMER may in its sole discretion terminate this Agreement. This Agreement shall be binding on and inure to the benefit of the respective successors and permitted assigns of the parties. Notices. All notices under this Agreement shall be in writing, and shall be deemed given when personally delivered, when mailed by prepaid certified or registered U.S. mail, when sent by commercial overnight courier service with tracking capabilities or by facsimile (if confirmed by one of the other methods permitted hereunder within 48 hours after such facsimile transmission), to the respective addressee of each party at the address or facsimile number below, or such other address or facsimile number as such party last provided to the other party by written notice: To CONTRACTOR: World Advancement of Technology for EMS and Rescue 1748 San Diego Ave San Diego, CA 92110 To CUSTOMER: CUSTOMER 1635 Faraday Avenue Carlsbad, CA 92008 Waiver. The failure of either party to enforce its rights under this Agreement at any time for any period shall not be construed as a waiver of such rights. The waiver of a breach of any provision of this Agreement will not operate or be interpreted as a waiver of any other or subsequent breach. Independent Contractors. Notwithstanding any provision hereof, for all purposes of this Agreement each party shall be and act as an independent contractor and not as a partner, joint venturer or agent of the other party and shall not bind nor attempt to bind the other party to any contract, warranty or other obligation. Amendment. No changes or modifications to or waivers of any provision of this © • 1748 San Diego Avenue, San Diego, CA 92110 • (619) 955-6488 / fax (619) 299-9946 Version 4.0 Software License Agreement Page 9 of 22 Agreement shall be effective unless evidenced in a written amendment that is signed by both parties. Severability. In the event that any provision of this Agreement shall be determined to be illegal or unenforceable, such provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. Governing Law and Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of the State of California without regard to the conflicts of laws provisions thereof The sole jurisdiction and venue for actions related to the subject matter of this Agreement shall be the state and federal courts located in the County of San Diego, California. Headings. Headings herein are for convenience of reference only and shall in no way affect interpretation of the Agreement. Force Majeure. A party shall not be liable for nonperformance or delay in performance (other than of obligations regarding payment of money or confidentiality) caused by any event reasonably beyond the control of such party including, but not limited to, wars, terrorism, hostilities, revolutions, riots, civil commotion, national emergency, strikes, lockouts, unavailability of supplies, epidemics, fire, flood, earthquake, force of nature, explosion, embargo, or any other Act of God, internet, electric power or communications outage, or any law, proclamation, regulation, ordinance of any court, government or governmental agency. Attorneys' Fees. The prevailing party in any action or proceeding arising from, relating to, or connected with this Agreement will be awarded its attorneys' and experts' fees. Entire Agreement. This Agreement, including all exhibits hereto, constitutes the entire agreement between the parties with respect to the subject matter of this Agreement and supersedes all proposals, oral or written, all negotiations, conversations, discussions or agreements between or among the parties relating to the subject matter. No terms, provisions or conditions of any purchase order, acknowledgment or other business form that CUSTOMER may use in connection with the licensing of the Software will have any effect on the rights, duties, or obligations of the parties hereunder, or otherwise modify this Agreement, regardless of any failure of CONTRACTOR to object to such terms, provisions or conditions. Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original but all of which together shall constitute one and the same Agreement. Facsimile signatures will have the same weight and effect as originals. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the Effective Date. CUSTOMER World Advancement of Technology for EMS and Rescue, Inc. Bv: Bv: ^ Name^jy ]XKA^A ^^rA%OJ^ Name: ^/KS^K 1^ Title: U^.'.lt.A GLL. (ha^ao^ Title: C pQ . . ' • 1748 San Diego Avenue, San Diego, CA 92110 • (619) 955-6488 / fax (619) 699-9946— Version 4.0 Software License Agreement Page 10 of 22 Approved as to Form: Celia A. Brewer, City Attorney Assistant City Attorney 1748 San Diego Avenue, San Diego, CA 92110 • (619) 955-6488 / fax (619) 299-9946 Version 4.0 Software License Agreement Page 11 of 22 EXHIBIT A SOFTWARE: Street EMS License for Carlsbad Street EMS Server License for Carlsbad INTERFACES (Included in license fees and on-going Maintenance and Support as shown in Exhibit B. not hilled senaratelv^: Zoll Monitor Interface License for Carlsbad Real-time CAD Interface to NorthCom for Carlsbad Export to Billing Interface for Carlsbad Batch QCS Upload Interface for Reporting to SD County for Carlsbad Export Interface to EMS Hub for Carlsbad SOFTWARE DOCUMENTATION: Street EMS Crew Guide Street EMS Server Manual Deployment Timeline TRAININGQncluded in license fees as shown in Exhibit B. not billed separately): Three (3) two-hour Administrative Training Sessions One (1) two-hour Train-the-Trainer Session MISCELLANEOUS: Migration of Fieldsaver data via NEMSIS 2 file provided by Fieldsaver to occur after system "go live" Software Escrow Account 1748 San Diego Avenue, San Diego, CA 92110 • (619) 955-6488 / fax (619) 299-9946 Version 4.0 Software License Agreement Page 12 of 22 EXHIBIT B SCHEDULE OF FEES CUSTOMER agrees to pay license fees to CONTRACTOR, as described below CONTRACTOR. Licenses for hosted production and test instances (one time): 4^ Street EMS License for Carlsbad (8 FR & 3 TR) ^ Street EMS Server License for Carlsbad *if- Zoll Monitor Interface License for Carlsbad * Street Sense License (11 Units, $12,982 total) 4t Street Analytics License (11 Units, $8,655 total) Migration of FieldSaver Data via NEMSIS2 provide by FieldSaver 4»- Initial Escrow Account Setup $25,793 one-time included $6,810 one-time waived for year one waived for year one $ 8,750 one-time $2,000 one-time Total License Fees $43,353 one-time CONTRACTOR. Devices 4- 11 Street EMS device slots for Carlsbad *4- Additional Street EMS device slots as needed Included Included CONTRACTOR. Maintenance & Support Services Street EMS Maintenance ^ Zoll Monitor Interface Maintenance (11 Units) ^ Street Sense Maintenance (11 Units) ^ Street Sense Maintenance waived for 1 st year of use Street Analytics Maintenance (11 Units) Street Analytics Maintenance waived for year of use Weekly Archiving of Offsite Backups ^ Escrow Maintenance 4 4 Included $ 1,405 per month $ 476 per month $ 511 per month $ (511) per month $ 340 per month $ (340) per month $ 750 per month $ 50 per month Total Maintenance Fees 1 $ 2,681 per month *The total cost for a year's support can be prepaid, with a 10% discount, for $28,955. Additional Terms 1. 50% of total license fees due upon contract signing 2. 25% of total license fees due at the start of onScene Administrator Training 3. 25% of total license fees due upon fmal system acceptance by CUSTOMER. 4. CONTRACTOR Maintenance & Support Services billed monthly, beginning one month after system acceptance by CUSTOMER. 5. Street Sense and Street Analytics fees are waived for the first year. On the anniversary of system acceptance by CUSTOMER, if Carlsbad wishes to continue the use of Street Sense and Street Analytics, license fees described in section 1 will be billed and monthly fees described in section 2 will henceforth be added to the monthly fees. 6. Any additional services rendered above those included in this agreement will be billed separately. A cost estimate will be submitted by CONTRACTOR for approval by CUSTOMER prior to rendering of services. Prerequisites: CUSTOMER shall provide all CAD and Street EMS devices. CUSTOMER shall execute a Business Associate Agreement. CUSTOMER shall provide NEMSIS 2 Extract from CUSTOMER FieldSaver System 1748 San Diego Avenue, San Diego, CA 92110 • (619) 955-6488 / fax (619) 299-9946 Version 4.0 Software License Agreement Page 13 of 22 SUPPORT TERMS Software Support Services. During the term of the Agreement, CUSTOMER shall receive standard Software Support Services from CONTRACTOR. Subject to payment of fees, CONTRACTOR shall provide the following Software Support Services for the CONTRACTOR software licensed by CUSTOMER ("Software"): 1. Standard Support. CONTRACTOR will provide reasonable email and phone support for problem determination and resolution as described further herein during CONTRACTOR'S normal working hours of 8:00 a.m. to 5:00 p.m. (business hours), Monday through Friday (excluding major holidays and CONTRACTOR recognized holidays) (business days). Pacific Time for all problems related to the Software ("Standard Support"). 2. Support Methods. CONTRACTOR maintains a support contact email address (supportfglwateronscene.com) and support phone number (619-955-6488). This contact information is subject to change upon written notice to CUSTOMER. 3. Updates and Upgrades. CONTRACTOR will, from time to time when and if available, make available to CUSTOMER Updates and Upgrades. Nothing herein shall require CONTRACTOR to develop or provide Upgrades or Updates except as necessary to comply with its Error Correction obligations described herein. Update and Upgrades will be treated as Software and subject to the terms of the License Agreement. Upon CUSTOMER'S request, CONTRACTOR will install updates and upgrades on CUSTOMER'S test instance. Once CUSTOMER has tested update/upgrade, CUSTOMER will schedule with CONTRACTOR a specific Maintenance Window to install update/upgrade to its production instance. CONTRACTOR will not apply any updates or upgrades to CUSTOMER'S production instance without first notifying CUSTOMER. 4. Maintenance Window. CONTRACTOR will, from time to time, be required to perform routine maintenance to the Street EMS application. The regular weekly maintenance window is Thursdays, from 9:00-10:00am, Pacific Standard Time. During the window Users may only be able to utilize Street EMS in offline mode. 5. Error Correction. CONTRACTOR will correct reproducible errors in the Software, and assist CUSTOMER in resolving operational issues pertaining to the CUSTOMER'S deployment and use of the Software as provided by CONTRACTOR according to the schedule below. CONTRACTOR'S obligations under this section shall not include error correction for any software written, provided or modified by CUSTOMER. 1748 San Diego Avenue, San Diego, CA 92110 • (619) 955-6488 / fax (619) 299-9946 Version 4.0 Software License Agreement Page 14 of 22 Priority Description Acknowledgement Resolution Standard Issues Issues that are not Priority Issues Within 3 days Commercially reasonable effort Priority Issues Issues that substantially degrade the performance of the Software or materially restrict the use of the Software Within 24 hours Commercially reasonable effort (A) Acknowledgement consists of an acknowledgement to the CUSTOMER, via email or telephone, as to the receipt of the problem as reported. (B) Resolution consists of providing, as appropriate, one of the following to CUSTOMER: an existing correction; a new correction; a viable detour, work around or temporary patch and, where the fix is temporary, a plan on how the problem will be finally corrected. 6. Services Bv Designated Parties. CONTRACTOR may designate third parties including distributors, OEMs, or VARs to provide any of the Software Support Services identified in this Exhibit C, provided, however, that CONTRACTOR shall at all times remain responsible to CUSTOMER for the performance of all Software Support Services. CONTRACTOR will not designate a third party to modify the source code of any software listed in exhibit B without the notification and concurrence of CUSTOMER. 7. Dispute Resolution If a dispute should arise regarding the performance of the Services the following procedure will be used to resolve any questions of fact or interpretation not otherwise settled by agreement between the parties. Representatives of CONTRACTOR or CUSTOMER will reduce such questions, and their respective views, to writing. A copy of such documented dispute will be forwarded to both parties involved along with recommended methods of resolution, which would be of benefit to both parties. The representative receiving the letter will reply to the letter along with a recommended method of resolution within ten (10) business days. If the resolution thus obtained is unsatisfactory to the aggrieved party, a letter outlining the disputes will be forwarded to the CUSTOMER Manager. The CUSTOMER Manager will consider the facts and solutions recommended by each party and may then opt to direct a solution to the problem. In such cases, the action of the CUSTOMER Manager will be binding upon the parties involved, although nothing in this procedure will prohibit the parties from seeking remedies available to them at law. 1748 San Diego Avenue, San Diego, CA 92110 • (619) 955-6488 / fax (619) 299-9946 Version 4.0 Software License Agreement Page 15 of 22 8. CUSTOMER'S Obligations for Operational Support. 8.1. Contact Person(sy CUSTOMER will designate up to two (2) Contact Person(s) (or such other replacement individuals as CUSTOMER may designate in writing) who shall be the sole contacts for the coordination and receipt of the Software Support Services set forth in this Agreement. Each Contact Person shall be knowledgeable about the Software. If CONTRACTOR is unable to contact any designated Contact Person after reasonable attempts to do so, and such contact is necessary for performing the Software Support Services, CONTRACTOR may delay performance of the services until CONTRACTOR is able to contact a designated Contact Person, in which case the times for Resolution set forth above will be adjusted for any such delay. 8.2. Supporting Data. CUSTOMER will provide reasonable supporting data to aid in the identification and resolution of the issue. 1748 San Diego Avenue, San Diego, CA 92110 • (619) 955-6488 / fax (619) 299-9946 Version 4.0 Software License Agreement Page 16 of 22 EXHIBIT D IMPLEMENTATION SCOPE OF WORK 1 EXECUTIVE SUMMARY 1.1 INTRODUCTION This Statement of Work ("SOW") contains the approach for the definition, configuration, and deployment of the software and services for the Electronic Patient Care Reporting (ePCR) system. 1.2 SCOPE OVERVIEW The scope of this project will include a migration from Carlsbad's FieldSaver system to OnScene software and related interfaces. 1.2.1 RESOURCES CONTRACTOR'S Project Manager will be available and respond to the CUSTOMER during regular business hours: Monday-Friday, 8:00 AM- 5:00 PM PST. 1.2.2 OUT OF SCOPE a) Any custom software enhancements such as; undocumented enhancements to source code. b) Extensions to the scope not documented in this Statement of Work. Fees related to any extensions to the scope must be approved through a Change Order. c) Anything not specifically stated in this SOW will be considered out of scope. 1.3 ASSUMPTIONS It is assumed that: a) CUSTOMER will make IT technical resources available to assist with the implementation. b) CONTRACTOR will provide personnel with the appropriate skills and experience with the Licensed Software. c) Adequate training space will be provided by the CUSTOMER for training throughout the project. d) All software failures, or data issues found during implementation —whether by CONTRACTOR or the CUSTOMER will be tracked to resolution. e) The CUSTOMER and CONTRACTOR will make the Project Team members available for meetings, consuhing and training sessions, discussions and conference calls. f) Whenever possible, CUSTOMER and CONTRACTOR may consider alternative meeting options such as WebEx, Video Conferencing, Remote Desktop and Conference Calls. g) CONTRACTOR resources will be available for the production go live during CONTRACTOR'S regular support hours. © • 1748 San Diego Avenue, San Diego, CA 92110 • (619) 955-6488 / fax (619) 299-9946 Version 4.0 Software License Agreement Page 17 of 22 h) The CUSTOMER and CONTRACTOR shall review their responsibilities before work begins to ensure that Services can be satisfactorily completed. i) CONTRACTOR shall initially implement the most current, in production version of the OnScene application available on the delivery date. During the implementation CONTRACTOR will provide patched releases of the software that meet or exceed the version available at contract signing. Within one year of Go-Live, CONTRACTOR will upgrade the CUSTOMER to the latest version of StreetEMS. New releases of licensed software will be provided to the CUSTOMER as part of their software maintenance agreement at no additional cost. Release notes are provided for all new versions. j) CONTRACTOR will provide/purchase/acquire the appropriate hardware assets to host all purchased CONTRACTOR software products in both the testing and production environments. k) CUSTOMER will provide/purchase/acquire the appropriate user hardware, based on the specifications provided by the CONTRACTOR necessary to fully utilize the Licensed Software's functionality. 2 Scope of Work 3 RACI Matrix R RESPONSIBLE Person responsible for completing the assigned deliverable R A ACCOUNTABLE Ultimate Owner, Accountable for final decision A C CONSULTED Person consulted before action or decision taken I INFORMED Person informed after action or decision taken Activity/ Deliverable Description CUSTOMER CUSTOMER Role CONTRAC TOR CUSTOME R Role Project Plan The high level project plan is an MS Project based visual representation of the summary activities, deliverables and milestones of the project. Participate Project Manager C I Own Project Manager R A 1748 San Diego Avenue, San Diego, CA 92110 • (619) 955-6488 / fax (619) 299-9946 Version 4.0 Software License Agreement Page 18 of 22 Issues Log Central place for all issues to Participate C Participate R be entered, tracked and managed towards. Will be modified and maintained by Project Manager I Project Manager A CONTRACTOR and CUSTOMER. Project status Periodic project team Participate C Participate R meetings meetings will have an agenda prepared at least 24 hours ahead of scheduled meeting. Project Manager 1 Project Manager A Crew Guide Manual designed to support None C Own R provided to CUSTOMER training of personnel that will use mobile application. Project Team I Project Manager A Server Manual Details administrative setup None C Own R provided to CUSTOMER of OnScene. Project Team I Project Manager A Test Plan Document that outlines a test plan for each module. Will be modified and owned by the CUSTOMER as needed. Own Project Team Members R A None 1 Cutover Strategy Document developed to outline Own R Advise C Document "Go Live" of OnScene Project Team A Project Manager Configure Test Test system setup and None I Own R System configured Project Team Technical Staff A Interface Functional Interfaces None I Own R configuration developed/configured per interface requirements Project Manager Technical Staff A Admin Training CUSTOMER Project Team Trained Participate Project Team R Own R A CONTRACTOR Test Environment available to Participate I Own R provide access to Test Environment CUSTOMER Project Manager C Project Manager A 1748 San Diego Avenue, San Diego, CA 92110 • (619) 955-6488 / fax (619) 299-9946 Version 4.0 Software License Agreement Page 19 of 22 Setup CUSTOMER Devices CUSTOMER iPads configured to connect to test environment. Own Project Manager Advise Technical Staff Test environment Configuration Test environment setup with CUSTOMER'S configuration Own Project Team Advise Project Manager System Testing Test plan executed and testing completed against test environment to validate: Own Project Team • Configuration • Interfaces Advise Project Manager Training Plan Training Scheduled and training materials developed. Participate Project Team Participate Project Manager Setup Production environment Production environment setup and configured None Project Manager Own Technical Staff Migrate configuration Production System completed with CUSTOMER Configuration migrated from the test environment Participate Project Manager Own Technical Staff System Testing Test plan executed and testing completed against production environment to validate: • Configuration • Interfaces Own Project Team R A Advise Project Manager Execute Training Plan End User Training conducted by CUSTOMER Own Project Team Advise Project Manager Close out Signoff CUSTOMER completes approval of system and validates user readiness for "Go Live" Own Project Manager None 1748 San Diego Avenue, San Diego, CA 92110 (619) 955-6488 /Tax (619) 299-9946 Version 4.0 Software License Agreement Page 20 of 22 "Go Live" Provide live system access to users and Email "Go Live" announcement. Production use of system begins. Own Project Sponsor R A Participate Project Team C CUSTOMER devices configured to point to Production instance CUSTOMER mobile devices that connect to Production instance Own Project Manager R A Advise Technical Staff C I System Acceptance CUSTOMER completes final system acceptance Own Project Team R A None I Post (lO Live Export File Provide NEMSIS export file for data load into Test environment Own Project Manager R A None I Conduct Test environment import of NEMSIS data export. Test System with CUSTOMER Data with data imported from CUSTOMER'S existing ePCR system. Participate Project Manager I Participate Technical Staff R A System Testing Test plan executed and testing completed against test environment to validate: • Data Migration Own Project Team R A Advise Project Manager C I Conduct Production environment import of NEMSIS data export. Test System with CUSTOMER Data with data imported from CUSTOMER'S existing ePCR system. Participate Project Manager I Participate Technical Staff R A 4. System Acceptance Final system acceptance will occur once the licensed software and all interfaces are in production use by the CUSTOMER for one consecutive month without any priority issues. 1748 San Diego Avenue, San Diego, CA 92110 • (619) 955-6488 / fax (619) 299-9946 Version 4.0 Software License Agreement Page 21 of 22 ADDENDUM 1. Hosting. Let's add in the SLA's for hosting and the up-times guaranteed under this agreement. CONTRACTOR will ensure that any hosted servers and network protocols that are used to deliver the licensed software reside in data centers that are located within the United States. CONTRACTOR will notify the CUSTOMER if it intends to relocate its hosted servers to another data center. CONTRACTOR will maintain the following hosting structure: Infrastructure Overview CONTRACTOR'S Datacenter is considered a Tier 2 • Expandable 10Mbps dual ring fiber connection to the Internet • 24/7 monitored environmental systems with A/C backup system • PV solar powered, grid tied, with diesel backup generator • Redundant UPS backed power to servers CONTRACTOR'S Server Hosts for Business Critical Applications • Dual Quad Core Processors • N+1 Redundant Power Supplies • RAID 10 and RAID 5 Storage Subsystems • Microsoft Windows Server 2008R2 • Microsoft SQL Server 2008 with database encryption Physical Security • External cameras record and provide video surveillance around the exterior of the building. • Internal cameras record 6 months of video surveillance of points of entry. Members of the Network Services department can view and delete footage. Member of the Office Management department can view and audit the video against the guest list. • Authorized personnel enter the building by RF keys and access is logged. • Guests are greeted at the door and log the visit into a logbook that can be matched to video surveillance. • Building security during closed hours are remotely monitored by a security company. • Additional Dual-factor authentication is required to enter the data center. • Access to the data center is electronically logged and recorded on video for 12 months. Log is audited monthly. • Guests to the data center have an escort while in the data center. © • 1748 San Diego Avenue, San Diego, CA 92110 • (619) 955-6488 / fax (619) 299-9946 Version 4.0 Software License Agreement Page 22 of 22 Network Security • All servers are protected by a Network Security Appliance firewall. Servers are never directly exposed to the Internet. Firewall logs are retained for a minimum of 30 days and rules are audited every 6 months. • Communication with the Web server over the Internet requires HTTPS, using 256-bit SSL encryption. • Database servers are not exposed to the Internet and access to data must go through an edge server. Access and event logs for the database server are retained for a minimum of 30 days. • Data at rest is stored encrypted with the AES-256 algorithm. • Application servers are on their own private network. Employee workstations are not connected to this network. • Unique User identification is required on all sensitive infrastructure and user access is logged. • Remote access to the building is by Virtual Private Network (VPN). VPN logs are retained for a minimum of 30 days and access is audited every 6 months. Additional HIPAA Security • All servers, workstations and laptops are protected by antivirus software. • OS patch management policy & procedures require that critical patches are applied within 30 days. • All servers and workstations have either an hourly, daily or weekly backup schedule. • Laptops hard drives are encrypted at rest. • Weekly archiving of offsite backups stored encrypted and over 50 miles away. • Security Administrator conducts HIPAA security training at start of employment and armually. • Every employee is trained to understand and follow HIPAA compliance standards. 1748 San Diego Avenue, San Diego, CA 92110 • (619) 955-6488 / fax (619) 299-9946 Business Associate Agreement This Business Associate Agreement ("Agreement") effective on ca?(D ^nfUui is entered into by and between World Advancement of Technology for EMS and Rescue, Inc. (the "Busi^s^ Associate") and the City of Carlsbad (collectively and individually the "Entity"). RECITALS A. The purpose of this Agreement is to comply with the business associate contract requirements set forth in the Standards for Privacy of Individually Identifiable Health Information, 45 C.F.R. Parts 160 and 164 ("HIPAA Privacy Rule") and state law requirements regarding the privacy of protected health information, and the Security Standards for Electronic Protected Health Information ("Security Regulations") at 45 C.F.R. Parts 160 and 164. B. The parties hereto may or may not have or will in the future have a prior oral or written agreement (the "Service Agreement"), under which the Business Associate regularly uses and/or discloses Protected Health Information in its performance of services for the Entity; C. This Agreement sets forth the terms and conditions pursuant to which Protected Health Information that is provided by the Entity to the Business Associate, or created or received by the Business Associate from or on behalf of the Entity, will be handled during the term of the Service Agreement and after its termination. DEFINITIONS Terms used, but not otherwise defined, in this Agreement shall have the same meaning as those terms in the HIPAA Privacy Rule. A. "Disclose" and "Disclosure" mean, with respect to Protected Health Information, the release, transfer, provision of access to, or divulging in any other manner of Protected Health Information outside Business Associate's internal operations or to other than its employees. B. "Electronic Media" means: Electronic storage media including memory devices in computers (hard drives) and any removable/transportable digital memory medium, such as magnetic tape or disk, optical disk, or digital memory card; or Transmission media used to exchange information already in electronic storage media. Transmission media include, for example, the internet (wide-open), extranet (using internet technology to link a business with information accessible only to collaborating parties), leased lines, dial-up lines, private networks, and the physical movement of removable /transportable electronic storage media. Certain transmissions, including of paper, via facsimile, and of voice, via telephone, are not considered to be transmissions via electronic media, because the information being exchanged did not exist in electronic form before the transmission. C. Electronic Protected Health Information" means Protected Health Information that is transmitted or maintained in Electronic Media. D. "Information Svstem" means an interconnected set of information resources under the same direct management control that shares common functionality. A system normally includes hardware, software, information, data, applications, communications, and people. E. "Protected Health Information" or "PHI" means information that (i) relates to the past, present or future physical or mental health or condition of an individual; the provision of health care to an individual, or the past, present or future payment for the provision of health care to an individual; (ii) identifies the individual (or for which there is a reasonable basis for believing that the information can be used to identify the individual); and (iii) is received by Business Associate from or on behalf of Entity, or is created by Business Associate, or is made accessible to Business Associate by Entity. "Protected Health Information" includes Electronic Protected Health Information. F. "Securitv Incident" means the attempted or successful unauthorized access, use, disclosure, modification, or destruction of information in, or interference with system operations of, an Information System which contains Electronic Protected Health Information. However, Security Incident does not include attempts to access an Information System when those attempts are not reasonably considered by Business Associate to constitute an actual threat to the Information System. Business Associate Agreement G. "Use" or "Uses" mean, with respect to Protected Health Information, the sharing, employment, application, utilization, examination or analysis of such Information within Business Associate's internal operations. H. Services. Pursuant to the Service Agreement, the Business Associate provides services for the Entity that involve the use and disclosure of Protected Health Information. NOW, THEREFORE, for and in consideration of the recitals above and the mutual covenants and conditions contained herein, the Business Associate and the Entity agree as follows: 1. Permitted Uses and Disclosures of Protected Health Information 1.1 Except as otherwise specified herein, the Business Associate shall: (a) Use or disclose Protected Health Information necessary to perform its obligations under the Services Agreement, provided that such use or disclosure would not violate the Privacy and Security Regulations if done by the Entity. All other uses not authorized by this Agreement are prohibited. (b) Additionally, the Business Associate may disclose Protected Health Information for the purposes authorized by this Agreement only (i) to its employees, subcontractors, and agents, in accordance with Section 2.1(e) hereof, (ii) as directed by the Entity, or (iii) as otherwise permitted by the terms of this Agreement including, but not limited to. Section 1.2(b) below. 1.2 Business Activities. Unless otherwise limited herein, the Business Associate may: (a) Use the Protected Health Information in its possession for its proper management and administration and to fulfill any present or future legal responsibilities of the Business Associate provided that such uses are permitted under applicable state and federal confidentiality laws. (b) Disclose the Protected Health Information in its possession to third parties for the proper management and administration of the Business Associate, provided that disclosures are required by law, or the Business Associate obtains reasonable assurances, as Entity determines to be sufficient, from the person to whom the information is disclosed that the information will remain confidential and will be used or fiirther disclosed only as required by law or for the purpose for which it was disclosed to the person, and the person notifies the Business Associate of any instances of which the person is aware in which the confidentiality of the information has been breached. (c) Aggregate the Protected Health Information in its possession with the protected health information (as that term is defined in 45 C.F.R. § 164.501) of other covered entities (as that term is defined in 45 C.F.R. § 160.103) that the Business Associate has in its possession through its capacity as a business associate (as that term is defined in 45 C.F.R., § 160.103) to such other covered entities, provided that the purpose of such aggregation is to provide the Entity with data analyses relating to the health care operations (as that term is defined in 45 C.F.R. § 164.501) of the Entity. Under no circumstances may the Business Associate disclose Protected Health Information of the Entity to another Entity absent the explicit written authorization of the Entity. 2. Responsibilities Of The Parties 2.1 With regard to its use and/or disclosure of Protected Health Information, the Business Associate hereby agrees to: (a) Not use or further disclose Protected Health Information other than as permitted or required by this Agreement or as otherwise required by law; Business Associate Agreement (b) Use appropriate safeguards, as World Advancement of Technology for EMS and Rescue determines to be appropriate, to prevent the use or disclosure of the Protected Health Information other than as provided for by this Agreement; (c) Establish and implement procedures for mitigating, to the extent practicable, any harmfiil effect that is laiown to the Business Associate of a use or disclosure of Protected Health Information that violated the requirements of this Agreement; (d) Specifically as to Electronic Protected Health Information, Business Associate warrants that it shall implement administrative, physical and technical safeguards that reasonably and appropriately protect the confidentiality, integrity and availability of Electronic Protected Health Information. (e) Report to the Entity, in writing, any use and/or disclosure of the Protected Health Information that is not permitted or required by this Agreement, as well as each Security Incident of which Business Associate becomes aware. Business Associate will also report, as required by law, the breach to the U.S. Department of Health and Human Services and any other required agencies. The initial notice shall be made within forty-eight (48) hours from the time the Business Associate becomes aware of the non-permitted Use, Disclosure or Security Incident, followed by a flill written report no later than five (5) business days from the date the Business Associate becomes aware of the non-permitted Use, Disclosure or Security Incident; (f) Require all of its employees, representatives, and agents, including subcontractors, that receive or use or have access to Protected Health Information under this Agreement to agree in writing to adhere to the same restrictions and conditions on the use and/or disclosure of Protected Health Information that apply herein, including the obligation to return or destroy the Protected Health Information as provided under Section 4.3 hereof; (g) Provide access, within ten (10) calendar days of receipt by the Business Associate of a request by the Entity, to Protected Health Information in a Designated Record Set, to the Entity or, as directed by the Entity, to an Individual in order to meet the requirements under 45 C.F.R. § 164.524 (the term "Designated Record Set" shall have the same meaning as the term "designated records set" in 45 C.F.R. § 164.501; the term "Individual" shall mean the person who is the subject of Protected Health Information); (h) Make any amendment(s) to Protected Health Information in a Designated Record Set that the Entity directs or agrees to pursuant to 45 C.F.R. § 164.526 at the request of the Entity or an Individual, within ten (10) calendar days of receipt by the Business Associate of such request; (i) Make available all records, books, agreements, and policies and procedures relating to the use and/or disclosure of Protected Health Information received from, or created or received by the Business Associate on behalf of, the Entity available to the Entity, or at the request of the Entity to the Secretary of the U.S. Department of Health and Human Services ("HHS"), in a time and manner designated by the Entity or the Secretary, for purposes of the Secretary determining the Entity's compliance with the Privacy and Security Regulations, subject to attorney-client and other applicable legal privileges; (j) Within ten (10) calendar days of receiving a written request from the Entity, make available to the Entity during normal business hours at the Business Associate's offices all records, books, agreements, and policies and procedures relating to the use and/or disclosure of Protected Health Information for purposes of enabling the Entity to determine the Business Associate's compliance with the terms of this Agreement; Business Associate Agreement (k) Document such disclosures of Protected Health Information and information related to such disclosures as would be required for the Entity to respond to a request by an Individual for an accounting of disclosures of Protected Health Information in accordance with 45 C.F.R. § 164.528; and (1) Within ten (10) calendar days of receiving a written request from the Entity, provide to the Entity such information as is requested by the Entity to permit the Entity to respond to a request by an Individual for an accounting of disclosures of the Individual's Protected Health Information in accordance with 45 C.F.R. § 164.528. 2.2 Responsibilities of the Entity. With regard to the use and/or disclosure of Protected Health Information by the Business Associate, the Entity hereby agrees to: (a) Inform the Business Associate of any changes in, or revocation of, the consent or authorization provided to the Entity to use Protected Health Information, if such changes affect the Business Associate's permitted or required uses and disclosures; and (b) Notify the Business Associate, in writing and in a timely manner, of any resfriction to the use and/or disclosure of Protected Health Information that the Entity agreed to as provided for in 45 C.F.R. § 164.522. 3. Mutual Representation and Warranty Each party hereto represents and warrants to the other party hereto that all of its employees, agents, representatives and members of its work force, whose services may be used to fulfill obligations under this Agreement, are or shall be appropriately informed of the terms of this Agreement and are under legal obligation to fully comply with all provisions of this Agreement. Term and Termination 4.1 Term. This Agreement shall become effective on the Effective Date, and shall terminate when all of the Protected Health Information provided by the Entity to the Business Associate, or created or received by the Business Associate on behalf of the Entity, is desfroyed or returned to the Entity, or, if it is infeasible to retum or desfroy the Protected Health Information, protections are extended to such information, in accordance with the termination provisions in this Section 4. 4.2 Termination. As provided for under 45 C.F.R. § 164.504(e)(2)(iii), the Entity may immediately terminate this Agreement and any related agreement if it determines that the Business Associate has breached a material term of this Agreement. Altematively, the Entity may choose to: (i) provide the Business Associate with ten (10) calendar days written notice of the existence of an alleged material breach; and (ii) afford the Business Associate an opportunity to cure such alleged material breach upon mutually agreeable terms. Failure to cure in the manner set forth in this Section 4.2 is grounds for the immediate termination by the Entity of the Agreement. If termination is not feasible, the Entity shall report the breach to the Secretary of HHS. This Agreement will automatically terminate without any further action of the parties upon the termination or expiration of the Service Agreement. 4.3 Effect of Termination. (a) Except as provided in paragraph (b) of this Section 4.3, upon termination of this Agreement, for any reason, the Business Associate shall retum or desfroy all Protected Health Information received from the Entity, or created or received by the Business Associate on behalf of Entity. This provision shall apply to Protected Health Information that is in the possession of subcontractors or agents of the Business Associate. The Business Associate shall retain no copies or back-up tapes of the Protected Health Information. Business Associate Agreement (b) In the event that the Business Associate determines that returning or destroying the Protected Health Information is infeasible, the Business Associate shall provide to the Entity written notification of the conditions that make retum or destruction infeasible. Upon mutual agreement of the parties hereto that retum or destraction of Protected Health Information is infeasible, the Business Associate shall extend the protections of this Agreement to such Protected Health Information and limit further uses and disclosures of such Protected Health Information to those purposes that make the retum or destmction infeasible, for so long as the Business Associate maintains such Protected Health Information. (c) In the event that it is infeasible for the Business Associate to obtain from a subconfractor or agent any Protected Health Information in the possession of the subcontractor or agent, the Business Associate shall provide to the Entity written notification of the conditions of such infeasibility and, require the subcontractor or agent to agree to extend the protections of this Agreement to such Protected Health Information and limit further uses and disclosures by the subconfractor or agent of such Protected Health Information to those purposes that make the retum or destmction infeasible, for so long as the subcontractor or agent maintains such Protected Health Information. (d) The respective rights and obligations of the Business Associate and the Entity under this Agreement shall survive the termination of this Agreement indefinitely. 5. Indemnification. The parties hereto agree to indemnify, defend and hold harmless each other and each other's respective employees, directors, officers, subcontractors, agents or other members of its workforce (each of the foregoing hereinafter referred to as "indemnified party") against all actual and direct losses suffered by the indemnified party and all liability to third parties arising from or in connection with any breach of this Agreement or of any warranty hereunder or from any negligence or wrongfiil acts or omissions, including failure to perform its obligations under the Privacy and Security Regulations, by the indemnifying party or its employees, directors, officers, subconfractors, agents or other members of its workforce. Accordingly, on demand, the indemnifying party shall reimburse any indemnified party for any and all actual and direct losses, liabilities, lost profits, fines, penalties, costs or expenses (including reasonable attomeys' fees) which may for any reason be imposed upon any indemnified party by reason of any suit, claim, action, proceeding or demand by any third party which results from the indemnifying party's breach hereunder. The obligation of the parties hereto to indemnify any indemnified party shall survive the expiration or termination of this Agreement for any reason. Miscellaneous. 6.1 Notices. Any notices required or permitted to be given hereunder by any party to the other shall be in writing and shall be deemed delivered upon personal delivery; twenty-four (24) hours following deposit with a courier for ovemight delivery; or seventy-two (72) hours following deposit in the U.S. Mail, registered or certified mail, postage prepaid, return-receipt requested, addressed to the parties at the following addresses or to such other addresses as the parties may specify in writing: If to the Business Associate: World Advancement of Technology for EMS and Rescue 1748 San Diego Avenue San Diego, CA92110 If to the Entity: City of Carlsbad 1635 Faraday Avenue Carlsbad, CA 92008 6.2 Government Law. This Agreement shall be governed by and consfrued in accordance with the laws of the State of California. Business Associate Agreement 6.3 Venue. In the event of any litigation under this Agreement, the parties agree that the venue for such litigation shall be the County of San Diego in the State of Califomia. 6.4 No Third Party Beneficiaries. Nothing express or implied in this Agreement is intended to confer, nor shall anything herein confer, upon any person other than the parties' hereto any rights, remedies, obligations, or liabilities whatsoever. 6.5 Regulation References. A reference in this Agreement to a section in the Privacy and Security Regulations means the section as in effect or as amended, and for which compliance is required. 6.6 Amendment. This Agreement may not be modified or amended, except by mutual written agreement. The parties hereto agree to take such action as is necessary to amend this Agreement from time to time as is necessary for the Entity to comply with the requirements of the Privacy and Security Regulations and HIPAA. 6.7 Enforcement. In the event that either party hereto shall be required to enforce the terms of this Agreement, whether with or without arbitration, the prevailing party shall be entitled to recover the costs of such action, including reasonable attomeys' fees. 6.8 Entire Agreement; Modification. This Agreement shall constitute the entire agreement of the parties hereto with respect to the subject matter hereof and supersedes all prior agreements, oral or written, and all other communications between the parties hereto relating to such subject matter. 6.9 Severabilitv. In the event any provision of this Agreement is held to be unenforceable or void for any reason, the remainder of the Agreement shall be unaffected and shall remain in full force and effect in accordance with its terms, unless such unenforceability or voidability defeats an essential business term hereof 6.10 Waivers. A waiver by either party of a breach or failure to perform hereunder shall not constitute a waiver of any subsequent breach or failure. 6.11 Interpretation. Any ambiguity in this Agreement shall be resolved in favor of a meaning that permits the Entity to comply with the Privacy and Security Regulations. 6.12 Counterparts. This Agreement may be executed in counterparts, each of which will be deemed to be an original, but all of which together will constitute one and the same agreement. Business Associate Agreement IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date and year above first written. "Business Associate": World Advancement of Technology for EMS and Rescue, Inc. Print: P^j^tOk S^icA^ Title Date: Of dti> 20l^ "Entity": City of Carlsbad Print: Tide: A-SSis|-W-d {[LJ (h/U^u.^ Date: ^ ' ^^' I AS TO FORM Assistant City Attorney City of Carlsbad CorpcH'ate Resoiution We, iohn Pringle md Kelin Buckley, the President and Secretary, respectively, of World Advancement of Technology for EMS and Rescue Inc., a Delaware corporation {the "Corporation"), do hereby certify that we are t*>e duly elected, qualified and acting President and Secretary of said Corporation and that the following is a true and correct copy of a resolution duly and legally adopted by the Board of Directors thereof convened and held In accordance with the law and the Bylaws of the Corporation the 10* day of March, 2015, at which a quorum was present, and that such resolution is now in full force and effect and duly recorded in the minutes of the Board of Directors: BE IT RESOLVED that Andrea Spindler, Compliance Officer, authorized for In the name of World Advancement of Technology for EMS and Rescue, Inc., and as its corporate act and deed to sign and execute any and all Business Associate Agreements entered into by the Corporation through December 31st, 2016. IN WITNESS WHEREOF, we have signed this instrument and caused the corporate seal of said corpor§Ji©frtq be hereyotp affixed this 10*^ day of March, 2015. Pringle, President Kelin Buckley, Secretary ( ^ www.wateronscene.com World Advancemerrt of Technology for EMS and Wmcm