14-30 Resolution No. 14-30
RESOLUTION
AUTHORIZING EXECUTION OF A MASTER SOFTWARE LICENSE AGREEMENT
WITH ZOLL DATA SYSTEMS, INC.
FOR ELECTRONIC PATIENT CARE REPORTING SOFTWARE
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS,
that pursuant to Elgin Municipal Code Section 5.02.020B(9) the City Council hereby finds that
an exception to the requirements of the procurement ordinance is necessary and in the best
interest of the city; and
BE IT FURTHER RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN,
ILLINOIS, that Sean R. Stegall, City Manager, be and is hereby authorized and directed to
execute a master software license agreement on behalf of the City of Elgin with Zoll Data
Systems, Inc. for electronic patient care reporting software, a copy of which is attached hereto
and made a part hereof by reference.
s/David J. Kaptain
David J. Kaptain, Mayor
Presented: March 19, 2014
Adopted: March 19, 2014
Omnibus Vote: Yeas: 9 Nays: 0
Attest:
s/Kimberly Dewis
Kimberly Dewis, City Clerk
ZOLL Data Systems,Inc. Sales Order#:
MASTER SOFTWARE LICENSE AGREEMENT
THIS MASTER SOFTWARE LICENSE AGREEMENT("MSLA")is made as of this 19th day of March,2014 by the City(the"Effective Date"),by
and between ZOLL Data Systems,Inc.,a Delaware corporation with offices at 11802 Ridge Parkway,Suite 400,Broomfield,CO 80021("ZOLL")and The
City of Elgin,Illinois,a municipal corporation(the"Customer").
Bill To: Elgin Fire Department Ship To: Elgin Fire Department
Address: 150 Dexter Court Attention: Dave Schmidt
Attn:Accounts Payable
Elgin, IL 60120 Email: schmidt_d @cityofelgin.org
Address: City of Elgin
150 Dexter Court
Elgin, IL 60120
Sales Rep: Glavanovits,Andy
Item License Description Qty List Price Disc. Adj.Price Ext.Price
RescueNet ePCR Suits
RFDS PL RescueNet ePCR Base System-New Customers 1 $8,500.00 4.00% $8,160.00 $8,160.00
TMUL NL TabletPCR Mobile Unit License 12 $3,000.00 4.00% $2,880.00 $34,560.00
TNUL CUL RescueNet WebPCR User License 1 $3,000.00 4.00% $2,880.00 $2,880.00
TFSU PL Fax Server Utility 1 $3,500.00 4.00% $3,360.00 $3,360.00
NEMIT PL RescueNet ePCR Extract-ImageTrend Standard Plug-In 1 $6,500.00 100.00% $0.00 $0.00
ZEPCRTU PPL ZOLL ePCR iOS User(Existing TabletPCR License) 12 $0.00 $0.00 $0.00
ZEPCRIOS PL ZOLL ePCR iOS to RescueNet ePCR Adapter 1 $0.00 $0.00 $0.00
NEMB PL RescueNet ePCR Extract-NEMSIS Base 1 $0.00 $0.00 $0.00
TABFRMS PL TabletPCR Interface to RescueNet FireRMS 1 $0.00 $0.00 $0.00
RescueNet FIreRMS
FSMSEPCR PL SMS Add-On FireRMS ePCR Interface 1 $0.00 $0.00 $0.00
Implementation-Deployment/Project Management I Other Special
RNT RescueNet ePCR Deployment(Excludes T&E) 1 $12,000.00 $12,000.00 $12,000.00
T&E Travel Expenses(Not to exceed) 1 $3,600.00 $3,600.00 $3,600.00
Total Software Discount Amount: $8,540.00 SUBTOTAL SOFTWARE: $48,960.00
SUBTOTAL SERVICES/IMPLEMENTATION: $15,600.00
TOTAL SOFTWARE&IMPLEMENTATION(EXCL MAINT): $64,560.00
Note:Taxes(if applicable)will be added at the appropriate rate upon invoicing.
MAINTENANCE FEES: $11,500.00
Payment Terms: Customer will pay to ZOLL an amount equal to 50%of the SUBTOTAL SOFTWARE amount indicated above within 30
days of the Effective Date.A second payment equal to 50%of the SUBTOTAL SOFTWARE amount shall be paid by Customer no later than
one week prior to the installation of Software.The remaining balance(100%of SUBTOTAL SERVICES/IMPLEMENTATION amount above)
will be paid within 30 days of Customer's receipt of ZOLL's invoice for such balance,which invoice shall be issued on the earlier of:(a)the
completion of services;or(b)6 months from the Effective Date(unless the Software has not been deployed due to a delay caused by ZOLL).
Any amounts not paid when due may result in the forfeiture of any discounts offered on the Effective Date.
Maintenance Fees: Maintenance is without charge for 90 days from the Deployment Date. Thereafter,Maintenance Fees are 20.00%of the
total combined Services Fees for customization of the Software performed by ZOLL pursuant to a Statement of Work(SOW),if any,and the
then-current list price for the Software,excluding discounts.Maintenance Fees for third party software are set by the software vendor.
Service Fees: Service Fees are specified in each SOW. Customer will also reimburse ZOLL for all reasonable(including travel and
accommodation expenses)incurred by ZOLL in providing the Services not to exceed the amount listed above.
Scone of License: Software is licensed based upon the License Type and quantity purchased,as more particularly set forth above and in
Exhibit C,attached hereto and made a part of.
Page 1 of 10 Customer Initials:
ZOLL Data Systems,Inc. Sales Order#:
MASTER SOFTWARE LICENSE AGREEMENT
Tax Exempt Status: If Customer is tax exempt or pays state taxes directly,then prior to invoicing,Customer must provide ZOLL with a copy
of a current tax exemption certificate issued by Customer's state taxing authority for the given jurisdiction.
Expiration: This Master Software License Agreement shall be subject to terms and conditions of the Master Software License agreement
terms and conditions;and Exhibits A,B and C,attached hereto and made a part hereof
The person signing below represents and warrants that she or he has the authority to bind Customer to the terms of this MSLA. By signing
below,the parties agree to the terms and conditions of this MSLA. Once signed,any reproduction of this MSLA,or any attachment or exhibit
hereto,made by reliable means(for example,photocopy or facsimile)is considered an original and all Software,Services and Maintenance
Services ordered and provided under this MSLA will be subject to it.
ZOLL Data Systems,Inc. (City of Elgin
Signature: - Signature:
Name: Kevin A. Ta p Name: Sean R. Stegall
Title: Vi r' i e President Title: City Manager
Date: 1.2-1 Date: March 19, 2014
Page 2 of 10 Customer Initials:
ZOLL Data Systems,Inc. Sales Order#:
MASTER SOFTWARE LICENSE AGREEMENT
Terms and Conditions
ZOLL shall provide Software and perform Maintenance Services and Services from time to time pursuant to this MSLA and any SOW executed by both parties. Each SOW
executed by the parties will include,and incorporate therein,the applicable terms and conditions of this MSLA. Except for the execution of SOWs for Services,any different or
additional terms of a related purchase order,confirmation or similar form signed by the parties after the date hereof shall have no force or effect.
1. DEFINITIONS.
1.1 THIS SECTION INTENTIONALLY LEFT BLANK
1.2 "Deployment Date"means the date upon which the deployment of the Software is complete and the Software is able to function as described in the Documentation.
1.3 "Documentation"means the user's manuals provided to Customer along with the Software.
1.4 "Executable Code"means the fully compiled version of a software program that can be executed by a computer and used by an end user without further compilation.
1.5 "Fees"means,collectively,the Software Fees,the Maintenance Fees and the Services Fees.
1.6 "Initial Order"means the written,mutually executed document preceding these terms and conditions.
1.7 "Intellectual Property Rights"means all existing and future worldwide copyrights,trademarks,service marks,trade secrets,patents,patent applications,moral rights,
contract rights and other proprietary rights.
1.8 "License Type"means the type of a Software license granted hereunder,as identified on the Initial Order and as described herein and on Exhibit C.
1.9 "Maintenance Fees"means ZOLL's then current standard fees for the Maintenance Services.
1.10 "Maintenance Services"means those maintenance and support services to be provided by ZOLL to Customer with respect to the Software pursuant to Section4 below.
1.11 THIS SECTION INTENTIONALLY LEFT BLANK
1.12 "Order Form"means a written document mutually agreed to and signed by the parties and made a part of this MSLA,setting forth such additional Software and/or user seats
to be provided to Customer under the terms of this MSLA during the Term.
1.13 "Service Fees"means the fees for the provision of Services set forth on the applicable SOW executed by the parties.
1.14 "Services"means those installation,professional and other services and assistance to be provided by ZOLL or its subcontractors to Customer as described in this MSLA and
any applicable SOW executed by the parties.
1.15 "Software"means the computer software program or programs described in the Initial Order and any Order Form,as well as any modified,updated or enhanced versions of
such programs that ZOLL may provide to Customer pursuant to the Services and/or Maintenance Services.
1.16 "Software Fees"means ZOLL's then current standard fees for the license of Software set forth in the Initial Order or any subsequent Order Form.
1.17 "Source Code"means the human readable version of a software program that can be compiled into Executable Code.
1.18 "SOW"means the engagement plan for Services to be performed by ZOLL and must be agreed to and signed by both parties before becoming effective.
2. LICENSE GRANT,RESTRICTIONS AND OWNERSHIP.
2.1 Software License Grant. Subject to the terms and conditions of this MSLA,ZOLL grants to Customer a perpetual(subject to Section 11 or a time-sensitive description in
the Line Item description itself if applicable),non exclusive,non transferable license to: (a)install and use the Software in Executable Code form only in accordance with the
License Type identified on the Initial Order,or a subsequent Order Form,only for Customer's internal business purposes,and subject to any limitations specified on the Initial Order;
(b)make 1 copy of the Software solely for backup or archival purposes;(c)copy and reproduce the Documentation provided to Customer solely for the purposes of facilitating
Customer's use of the Software;and(d)install a duplicate system solely for the purposes of training new staff members and/or testing configuration changes and software updates.
Maintenance Services as described in Exhibit A do not apply to this test/training system,and ZOLL reserves the right to charge additional fees for Maintenance Services on such
test/training systems in the future.
2.2 Restrictions On Use. Except as expressly permitted by this MSLA,Customer shall not,and shall not permit any third party,to:(a)use,reproduce,modify,adapt,alter,
translate,or create derivative works from the Software or the Documentation;(b)merge the Software with other software;(c)sublicense,distribute,sell,use for service bureau
use,lease,rent,loan,or otherwise transfer the Software or the Documentation to any third party;(d)reverse engineer,decompile,disassemble,or otherwise attempt to derive the
Source Code for the Software,except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation;(e)remove,alter,cover or
obfuscate any copyright notices or other proprietary rights notices included in the Software;or(f)otherwise use or copy the Software except as expressly permitted under Section2.1.
Customer agrees to install and use the Software only in strict compliance with the applicable License Type and all of the other terms of this MSLA.Without limiting the generality of
the foregoing,Customer covenants to comply with all limitations imposed by the applicable License Type with respect to the number of servers,personal computers and/or other
portable devices on which Customer may install the Software hereunder and/or the number of Customer users that may use the Software hereunder.
2.3 Proprietary Rights. The Software and Documentation,and all worldwide Intellectual Property Rights therein,are the exclusive property of ZOLL and its suppliers. All
rights in and to the Software not expressly granted to Customer in this MSLA are reserved by ZOLL and its suppliers.
2.4 Order Forms.During the Term,Customer may add Software and/or other License Types under this MSLA by request to ZOLL.All such additional Software and License Types
shall be set forth in an Order Form.No Order Form shall be valid unless it has been mutually agreed to and signed by authorized representatives of both ZOLL and Customer.
Neither party shall have any obligation to enter into any Order Form under this MSLA.The terms of this MSLA shall govern any Order Form issued under this MSLA.
3. DELIVERY. ZOLL shall deliver the Software and Documentation FOB ZOLL's shipping point.
4. SERVICES, If Customer has executed a SOW for the performance of Services,then subject to payment by Customer of the Service Fees in accordance with any payment
schedule agreed to by the parties,ZOLL will use commercially reasonable efforts to perform the Services in accordance with such SOW and the terms of Exhibit B. ZOLL shall
only be liable for failure to meet time frames or completion dates if such failure is due solely to ZOLL's negligence,and its liability will be limited to the Service Fees paid for the
deficient Services. If Customer fails to schedule installation within 6 months from the Effective Date,or postpones or cancels a scheduled installation with less than 30 days notice
or Customer requests a change in the timing or duration of the Services with less than 30 days'notice,ZOLL may charge,and Customer shall pay,an additional installation fee plus
any additional costs incurred as a result(including,without limitation,a$200 travel change fee to cover increased travel costs as a result of the rescheduling);provided,however,that
in no event shall such additional installation fee and additional costs incurred exceed a total of$200.00 per occurance. If either party proposes in writing a change to the scope,
timing,or duration of the Services,the other party will reasonably and in good faith consider and discuss with the proposing party the proposed change and a revised estimate of the
costs for such change.If Customer elects to have ZOLL develop custom software,Customer agrees that the functionality provided by the custom software is not essential to
Customer's use of the Software.If Customer does not use all of the Services purchased,unused Services will be credited.
5. MAINTENANCE SERVICES. At its option,Customer may procure Maintenance Services from ZOLL. Subject to Customer's payment of all applicable Maintenance
Fees,ZOLL shall provide Customer with those Maintenance Services described in Exhibit A.Attached hereto and made a part of hereof. ZOLL will provide the Maintenance
Services only for the most current release and the two immediately preceding major releases of the Software. ZOLL may elect to cease supporting a platform upon 6 month's notice
to Customer.Customer may cancel the maintenance agreement at any time without penalty;however,should the agreement be cancelled and at a future date Customer wishes to
reinstate maintenance,Customer will be required to all maintenance to cancellation date to requested reinstatement date.
Page 3 of 10 Customer Initials:
ZOLL Data Systems,Inc. Sales Order#:
MASTER SOFTWARE LICENSE AGREEMENT
6. FEES AND PAYMENT.
6.1 Software Fees. Customer will pay to ZOLL the Software Fees set forth in the Initial Order and any Order Form in accordance with the terms and conditions specified on the
order. Except as expressly provided in this MSLA,all Software Fees are non refundable.
6.2 Maintenance Fees.If Customer elects to procure Maintenance Services from ZOLL,then 60 days following the Deployment Date,ZOLL will invoice Customer for 1 quarter
of Maintenance Services to commence on the date of expiration of the Software Warranty Period(as defined in Section 7 below).ZOLL will invoice Customer on a quarterly basis
thereafter for all further Maintenance Fees unless Customer notifies ZOLL within 30 days of the end of the then-current Maintenance Services period.ZOLL will have no obligation
to provide Maintenance Services to Customer if any invoice issued under this Section 6.2 is past due.If Customer elects to discontinue Maintenance Services at any time,to reinstate
Maintenance Services and receive the applicable updates and new releases,Customer must pay the Maintenance Fees for all time periods missed.All Maintenance Fees are
non-refundable.
6.3 Service Fees and Expenses. Customer will pay all Service Fees to ZOLL in accordance with the payment schedule and terms set forth in the applicable SOW. Unless
otherwise provided in the applicable SOW Customer will reimburse ZOLL for all reasonable out of pocket expenses(including travel and accommodation expenses)incurred by
ZOLL in providing the Services.
6.4 Payment Terms. Unless otherwise expressly provided in this MSLA or an applicable SOW,Customer will pay ZOLL all amounts due under this MSLA within 30 days after
the date of the invoice. All payments must be made in U.S.dollars,unless otherwise agreed by the parties. Any amounts not paid when due will accrue interest at the lesser of
.75%per month or the maximum rate permitted by applicable law from the due date until paid.
6.5 Taxes. Fees exclude,and Customer will make all payments of the Fees to ZOLL free and clear of,all applicable sales,use,and other taxes and all applicable export and
import fees,customs duties and similar charges. When applicable and required by law, ZOLL may include any taxes that it is required to collect as a separate line item on an
invoice. Customer will be responsible for,and will indemnify and hold harmless ZOLL from,payment of all such taxes(other than taxes based on ZOLL's net income),fees,duties,
and charges,and any related penalties and interest,arising from the payment of the Fees or the delivery or license of the Software to Customer.
6.6 Audit Rights. During the Term and for a period of six(6)months following the termination or expiration of this MSLA,upon prior written notice,ZOLL will have the right,
during normal business hours,to inspect,or have an independent audit firm inspect,Customer's records relating to Customer's use of the Software to ensure it is in compliance with
the terms of this MSLA,including with any limitation on the number of servers,personal computers and/or other portable devices on which Customer may install the Software
hereunder and/or the number of Customer users that may use the Software hereunder. The costs of the audit will be paid by ZOLL,unless the audit reveals that Customer's
underpayment of Fees exceeds 5%. Customer will promptly pay to ZOLL any amounts reasonably shown by any such audit to be owing(which shall be calculated at ZOLL's
standard,non discounted rates)plus interest as provided in Section6.4 above.
6.7 Third Party Fees. Customer is solely responsible for,and none of the fees set forth herein,shall be deemed to cover any amounts owed to third parties in connection with
the use of the Software,including without limitation,clearinghouse fees;provided,however,that ZOLL shall not incur any fees or costs payable to any third party in
connection with the use of the Software,until ZOLL has provided Customer with not less than 30 days prior written notice of incurring any such costs or fees.In the event ZOLL
fails to provide such notice,Customer shall not be liable for any such fees or costs.In the event Customer objects in writing to any such fees or costs being incurred,Customer may
terminate this agreement upon written notice,which termination shall be effective 10 days from date of such notice,without penalty or further liability other than for services which
have already been provided to Customer by ZOLL.
7. WARRANTIES.
7.1 Performance. Subject to Customer's payment of the Software Fees,for a period of 90 days after the Deployment Date(the"Software Warranty Period"),ZOLL
warrants that the Software,when installed by ZOLL and used as permitted and in accordance with the instructions in the Documentation,will operate substantially as described in the
Documentation. ZOLL does not warrant the Customer's use of the Software will be error free or uninterrupted. ZOLL will,at its own expense and as its sole obligation and
Customer's exclusive remedy for any breach of this warranty,use commercially reasonable efforts to correct any reproducible error in the Software reported to ZOLL by Customer in
writing during the Software Warranty Period. Any such error correction provided to Customer will not extend the original Software Warranty Period.In the event such error or
correction is unsuccessful after 30 days,Customer may terminate this agreement upon written notice,without penalty or further liability other than for such services as have already
actually been provided by ZOLL on a pro rata basis.
7.2 Services. ZOLL warrants that any Services provided to Customer will be performed with due care in a professional and workmanlike manner. ZOLL shall,as its sole
obligation and Customer's sole and exclusive remedy for any breach of the warranty set forth in this Section 7.2,re perform the Services which gave rise to the breach or,at ZOLL's
option,refund the Services Fees paid by Customer for the Services which gave rise to the breach;provided that Customer notify ZOLL in writing of the breach within 30 days
following performance of the defective Services,specifying the breach in reasonable detail.
7.3 Disclaimers. The express warranties in this Section 7 are in lieu of all other warranties other than a warranty of merchantability,whether such other warranties are express,
implied,or statutory,regarding the Software,Services and Maintenance Services,and ZOLL expressly disclaims all other warranties,including warranties of fitness for a particular
purpose,title,and non-infringement of third party rights. Customer acknowledges that it has relied on no warranties other than the express warranties provided herein and a
warranty of merchantability,and that no warranties are made herein by any of ZOLL's suppliers.Customer acknowledges and agrees that,in entering into the this MSLA,it has not
relied upon the future availability of any new or enhanced feature or functionality,or any new or enhanced product or service,including,without limitation,updates or upgrades to
ZOLL's existing product and services.ZOLL's performance obligations hereunder are limited to those expressly enumerated herein,and payment for ZOLL's performance
obligations shall be due as described herein.
8. INFRINGEMENT CLAIMS. ZOLL will defend at its own expense any action against Customer brought by a third party alleging that the Software infringes any U.S.
patents or any copyrights or misappropriates any trade secrets of a third party,and ZOLL will pay those costs and damages finally awarded against Customer in any such action that
are specifically attributable to such claim or those costs and damages agreed to in a monetary settlement of such action. The foregoing obligations are conditioned on Customer:
(a)notifying ZOLL promptly in writing of such action;(b)giving ZOLL sole control of the defense thereof and any related settlement negotiations;and(c)cooperating and,at ZOLL's
request and expense,assisting in such defense. If the Software becomes,or in ZOLL's opinion is likely to become,the subject of an infringement claim,ZOLL may,at its option
and expense,either:(i)procure for Customer the right to continue using the Software;(ii)replace or modify the Software so that it becomes non infringing;or(iii)accept return of the
Software,terminate this MSLA,in whole or in part,as appropriate,and refund Customer the Software Fees paid for such Software upon such termination,computed according to a
36 month straight line amortization schedule beginning on the Effective Date. Notwithstanding the foregoing,ZOLL will have no obligation under this Section8 or otherwise with
respect to any infringement claim based upon: (w)any use of the Software not in accordance with this MSLA;(x)any use of the Software in combination with products,equipment,
software,or data not supplied by ZOLL if such infringement would have been avoided but for the combination with other products,equipment,software or data;(y)any use of any
release of the Software other than the most current release made commercially available by ZOLL;or(z)any modification of the Software by any person other than ZOLL or its
authorized agents or subcontractors. This Section 8 states ZOLL's entire liability and the Customer's exclusive remedy for any claims of infringement
9. LIMITATION OF LIABILITY. ZOLL's total cumulative liability to Customer,not inclusive of liability to third parties pursuant to the terms and provisions of this
agreement,in connection with any Software,Services or Maintenance Services provided under this MSLA or any SOW,whether in contract,tort or otherwise,will not exceed the
amount of Fees paid to ZOLL under this MSLA during the 12 month period preceding the events giving rise to such liability. In no event will ZOLL be liable for any consequential,
indirect,exemplary,special,or incidental damages,including without limitation any lost data,lost profits and costs of procurement of substitute goods or services,arising from or
relating to the MSLA or any SOW,however caused and under any theory of liability(including negligence),even if ZOLL has been advised of the possibility of such damages.
Customer acknowledges that the Fees reflect the allocation of risk between the parties and that ZOLL would not enter into the MSLA or any SOW without these limitations on
ZOLL's liability. In addition,ZOLL disclaims all liability of any kind of its suppliers.
10. CONFIDENTIALITY.
Page 4 of 10 Customer Initials:
ZOLL Data Systems,Inc. Sales Order#:
MASTER SOFTWARE LICENSE AGREEMENT
10.1 Confidential Information. Each party(the"Disclosing Party")may from time to time disclose to the other party(the"Recipient")certain information regarding the
business of the Disclosing Party and its suppliers,including technical,marketing,financial,employee,planning,and other confidential or proprietary information that is marked or
identified as confidential,or disclosed under circumstances that would lead a reasonable person to believe such information is confidential("Confidential Information"). The
Software,including without limitation any routines,subroutines,directories,tools,programs,or any other technology included therein,shall be considered ZOLL's Confidential
Information. The Recipient will not use any Confidential Information of the Disclosing Party for any purpose not expressly permitted by the MSLA,and will disclose the
Confidential Information of the Disclosing Party only to the employees or contractors of the Recipient who have a need to know such Confidential Information for purposes of the
MSLA and who are under a duty of confidentiality no less restrictive than the Recipients duty hereunder. The Recipient will protect the Disclosing Party's Confidential
Information from unauthorized use,access,or disclosure in the same manner as the Recipient protects its own confidential or proprietary information of a similar nature and with no
less than reasonable care.
10.2 Exceptions. The Recipient's obligations under Section 10.1 with respect to any Confidential Information of the Disclosing Party will terminate if such information: (a)was
already known to the Recipient at the time of disclosure by the Disclosing Party;(b)was disclosed to the Recipient by a third party who had the right to make such disclosure without
any confidentiality restrictions;(c)is,or through no fault of the Recipient has become,generally available to the public;or(d)was independently developed by the Recipient without
access to,or use of,the Disclosing Party's Confidential Information. In addition,the Recipient will be allowed to disclose Confidential Information of the Disclosing Party to the
extent that such disclosure is: (i)approved in writing by the Disclosing Party;(ii)necessary for the Recipient to enforce its rights under the MSLA or an SOW in connection with a
legal proceeding;or(iii)required by law or by the order of a court or similar judicial or administrative body;The Recipient shall use its best efforts to notify the Disclosing Party of
such required disclosure promptly and in writing,and shall cooperate.
10.3 Authority to Disclose Confidential Information. Prior to making any disclosure to ZOLL of private patient information,Customer represents that it has obtained,in
accordance with,and to the extent required by federal,state and local laws relating to the privacy of patient health information,including but not limited to the Health Insurance and
Portability and Accountability Act of 1996 and regulations,and guidelines related thereto,a properly executed,written authorization from each of its patient or the patient's
authorized representative documenting the patient's express written consent to enable the disclosure by Customer to ZOLL of protected health information.
11. TERM AND TERMINATION.
11.1 Term. The term of this MSLA will begin on the Effective Date and will continue until terminated by either party as provided in this Section 11(the"Term"). The term for
each SOW will be set forth in the applicable SOW unless terminated pursuant to this Section 11.
11.2 Termination for Cause. Either party may terminate this MSLA and all SOWs or terminate a particular SOW,as applicable,if the other party breaches any material provision
of the MSLA or an SOW and does not cure such breach within 30 days after receiving written notice thereof
11.3 Customer Termination for Convenience. Customer may terminate this MSLA at any time for any reason,or for no reason,in Customers'sole discretion,following 30 days'
written notice to ZOLL,subject to Customer's payment to ZOLL of the Early Termination Fee(as defined in Section 11.4(a)).
11.4 Effects of Termination. Upon termination or expiration of the MSLA for any reason: (a)any amounts owed to ZOLL for goods and/or services actually provided under this
MSLA and all Statements of Work before such termination or expiration will be immediately due and payable;(b)all licensed rights granted in this MSLA will immediately cease to
exist;(c)Customer must promptly discontinue all use of the Software,erase all copies of the Software from Customer's computers and the computers of its customers,and return to
ZOLL or destroy all copies of the Software and Documentation on tangible media in Customer's possession;and(d)each party shall promptly discontinue all use of the other party's
Confidential Information,and return to the other party or,at the other party's option,destroy,all copies of any such Confidential Information in tangible or electronic form. If
ZOLL terminates an SOW for cause,such termination will have no effect upon any other SOWs that may be in effect unless ZOLL terminates the MSLA for cause. Upon ZOLL's
request,Customer will provide a written certification certifying as to Customer's compliance with its post-termination obligations set forth in this Section 11.
11.5 Survival. Sections 1,2.2,6.4,6.5,6.6,7.3,8,9,10,11.4,11.5 and 12,together with any accrued payment obligations,will survive expiration or termination of the MSLA
for any reason.
12. GENERAL.
12.1 Compliance with Laws. Customer will comply with all applicable export and import control laws and regulations in its use of the Software. Customer will defend,
indemnify,and hold harmless ZOLL from and against any violation of such laws or regulations by Customer or any of its agents,officers,directors,or employees.
12.2 Assignments. Customer may not assign or transfer,by operation of law or otherwise,(including any connection with a sale of substantially all assets or equity,merger or
other change in control transaction),any of its rights under the MSLA or any SOW(including its licenses with respect to the Software)to any third party without ZOLL's prior
written consent. Any attempted assignment or transfer in violation of the foregoing will be null and void. ZOLL shall have the right to assign this MSLA or any SOW to any
successor to its business or assets to which this MSLA relates,whether by merger,sale of assets,sale of stock,reorganization or otherwise.
12.3 Force Majeure. Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder on account of strikes,shortages,riots,
insurrection,fires,flood,storm,explosions,acts of God,war,governmental action,labor conditions,earthquakes,material shortages or any other cause which is beyond the
reasonable control of such party.
12.4 U.S.Government End Users. If Customer is a branch or agency of the United States Govemment,the following provision applies. The Software and Documentation are
comprised of"commercial computer software"and"commercial computer software documentation"as such terms are used in 48 C.F.R. 12.212(SEPT 1995)and are provided to the
Government(i)for acquisition by or on behalf of civilian agencies,consistent with the policy set forth in 48 C.F.R. 12.212;or(ii)for acquisition by or on behalf of units of the
Department of Defense,consistent with the policies set forth in 48 C.F.R.227.7202 1(JUN 1995)and 227.7202 3(JUN 1995).
12.5 Notices. All notices,consents,and approvals under the MSLA and SOWs must be delivered in writing by courier,by electronic facsimile(fax),or by certified
or registered mail,(postage prepaid and retum receipt requested)to the other party at the address set forth on the cover page of this MSLA,and will be effective upon receipt or 3
business days after being deposited in the mail as required above,whichever occurs sooner. Either party may change its address by giving notice of the new address to the other
party in writing.
12.6 Governing Law and Venue. This MSLA and all SOWs will be subject to and governed by the laws of the State of Illinois,without reference to its choice of laws rules.
Venues for the resolution of any disputes or the enforcement of any rights arising out of,or in connection with this agreement shall be in the Circuit Court of Kane County,Illinois,
and each party irrevocable submits to the jurisdiction and venue of such court in any action or proceeding.ZOLL hereby irrevocably consents to effective services of process by
certified mail to ZOLL at 11802 Ridge Parkway,Suite 400,Broomfield,CO 8002,or such other address as provided.
12.7 Waivers;Severability. All waivers must be in writing. Any waiver or failure to enforce any provision of this MSLA or an SOW on one occasion will not be deemed a
waiver of any other provision or of such provision on any other occasion. If any provision of this MSLA or an SOW is unenforceable,such provision will be changed and
interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.
Without limiting the generality of the foregoing,Customer agrees that Section 9 will remain in effect notwithstanding the unenforceability of any provision in Section 7.
12.8 No Agency. Nothing contained herein shall be construed as creating any employment(other than that of an independent contractor),agency,partnership or other form of joint
enterprise between the parties.
12.9 Access to Insight Analytics.Provided the Customer is current on payments of Maintenance Fees hereunder,Customer may subscribe,at no additional charge,to ZOLL's
website www.ZOLLonline.com("ZOLL Online")by agreeing to the terms of the Application Service Provider Agreement available on ZOLL Online("The"ASP Agreement"),
pursuant to which Customer shall receive access,at no additional charge,to Insight Analytics product of ZOLL,subject to the terms of the ASP Agreement.
Page 5 of 10 Customer Initials:
ZOLL Data Systems,Inc. Sales Order#:
MASTER SOFTWARE LICENSE AGREEMENT
12.10 Entire Agreement.This MSLA,together with all exhibits hereto and the ASP Agreement,if any,constitutes the entire agreement between the parties regarding the subject
hereof and supersedes all prior or contemporaneous agreements,understandings,and communication,whether written or oral. This MSLA shall not be modified except by a
subsequently dated written amendment signed on behalf of ZOLL and Customer by their duly authorized representatives.
Page 6 of 10 Customer Initials:
ZOLL Data Systems,Inc. Sates Order#:
MASTER SOFTWARE LICENSE AGREEMENT
Amended Terms and Conditions
The following sections supersede or are in addition to sections in the existing MSLA.
6.6 Audit Rights. During the Term and for a period of six(6)months following the termination or expiration of this MSLA,ZOLL will have the right,during normal business
hours,to inspect(through remote access to Customer servers,reports,etc.or onsite if determined necessary),or have an independent audit firm inspect,Customer's records relating
to Customer's use of the Software to ensure it is in compliance with the terms of this MSLA,including with any limitation on the number of servers,personal computers and/or other
portable devices on which Customer may install the Software hereunder and/or the number of Customer users that may use the Software hereunder,and/or the number of PCRs
generated through the software hereunder. The costs of the audit will be paid by ZOLL,unless the audit reveals that Customer's underpayment of Fees exceeds 5%for products
other than ePCR Monthly Fees that are subject to adjustment as described on page 1.Customer will promptly pay to ZOLL any amounts shown by any such audit to be owing(which
shall be calculated at ZOLL's standard,non discounted rates)plus interest as provided in Section6.4 above.
12.9 Access to Insight Analytics.Provided the Customer is current on payments of Maintenance Fees hereunder,Customer may subscribe,at no additional charge,to ZOLL's
website www.ZOLLonline.com("ZOLL Online")by agreeing to the terms of the Application Service Provider Agreement available on ZOLL Online("The"ASP Agreement"),
pursuant to which Customer shall receive access,at no additional charge,to Insight Analytics product of ZOLL,subject to the terms of the ASP Agreement.
12.10 Entire Agreement.This MSLA,together with all exhibits hereto and the ASP Agreement,if any,constitutes the entire agreement between the parties regarding the subject
hereof and supersedes all prior or contemporaneous agreements,understandings,and communication,whether written or oral. This MSLA shall not be modified except by a
subsequently dated written amendment signed on behalf of ZOLL and Customer by their duly authorized representatives.
Page 7 of 10 Customer Initials:
ZOLL Data Systems,Inc. Sales Order#:
MASTER SOFTWARE LICENSE AGREEMENT
Exhibit A - MAINTENANCE SERVICES
1. Definitions. Capitalized terms used but not defined in the MSLA shall have the meanings set forth in this Section 1:
1.1 "Designated Interface"shall mean the contact person or group designated by Customer and agreed to by ZOLL who will coordinate all Maintenance Services requests by
Customer.
1.2 "Error"shall mean a reproducible defect in the Supported Program when operated on a Supported Environment,which causes the Supported Program not to operate
substantially in accordance with the Documentation.
1.3 "Resolution"shall mean a modification or workaround to the Supported Program and/or Documentation and/or other information provided by ZOLL to Customer intended to
resolve an Error.
1.4 "Emergency Support Hours"shall mean 24 hours a day,7 days a week.
1.5 "Business Hours"shall mean 6 am.to 6 p.m.,Monday to Friday(Mountain Time).
1.6 "Supported Environment"shall mean any hardware and operating system platform which ZOLL supports for use with the Supported Program.
1.7 "Supported Program"shall mean the current version of the Software,for which Customer has paid the then-current Maintenance Fees.
1.8 "Update"means a subsequent release of the Software which ZOLL generally makes available for Software licensees at no additional license fee other than shipping and
handling charges,provided Customer has paid the Maintenance Fees for such licenses for the relevant time period. Update shall not include any release,option or future product
which ZOLL licenses separately.
2. Maintenance Services Provided.
2.1 Telephone Support.
(a) Emergency Support.ZOLL will provide telephone support to the Designated Interface during the Emergency Support Hours to address Errors that prevent Customer from
using the RescueNet Dispatch program for a purpose for which the user has an immediate need(e.g.,all users unable to login to the system constitutes an emergency versus a single
user's inability to login,which does not constitute an emergency because there is an acceptable workaround available,logging in under a different account).
(b) Technical Support. ZOLL will provide telephone support to the Designated Interface during the Business Hours to address all other Errors relating to software. Such
telephone support will include the following:
(i) Clarification of functions and features of the Supported Program;
(ii) Clarification of the Documentation;
(iii) Guidance in operation of the Supported Program;
(iv) Assistance in identifying and verifying the causes of suspected Errors in the Supported Program;and
(v) Advice on bypassing identified Errors in the Supported Program,if reasonably possible.
ZOLL shall use commercially reasonable efforts to provide a Resolution to the Supported Program. ZOLL will acknowledge each Customer report of an Error by written
acknowledgment,in electronic form,setting forth a Service Request number(SR#)for use by Customer and ZOLL in all correspondence relating to such Error to track the Error until
it is resolved.
2.2 Travel and Other Expenses. Maintenance Services provided hereunder shall be provided at ZOLL's principal place of business,or at Customer's location at ZOLL's expense,
as determined in ZOLL's sole discretion. Should Customer request that ZOLL send personnel to Customer's location to resolve any Error in the Supported Program,ZOLL may
charge Customer for reasonable travel,meals and lodging expenses. Under such circumstances,ZOLL may also charge Customer for actual costs for supplies and other expenses
reasonably incurred by ZOLL,which are not of the sort normally provided or covered by ZOLL,provided that Customer has approved in advance the purchase of such supplies and
other expenses. If Customer so requires,ZOLL shall submit written evidence of each expenditure to Customer prior to receiving reimbursement of such costs and expenses.
2.3 Exceptions. ZOLL shall have no responsibility under this MSLA to fix any Errors arising out of or related to the following causes: (a)Customer's modification or
combination of the Supported Program(in whole or in part),(b)use of the Supported Program in an environment other than a Supported Environment;or(c)accident;unusual physical,
electrical or electromagnetic stress;neglect;misuse;failure or fluctuation of electric power,air conditioning or humidity control;failure of media not furnished by ZOLL;excessive
heating;fire and smoke damage;operation of the Supported Program with other media and hardware,software or telecommunication interfaces not meeting or not maintained in
accordance with the manufacturer's specifications;or causes other than ordinary use. Any corrections performed by ZOLL for such Errors shall be made,in ZOLL's reasonable
discretion,at ZOLL's then-current time and material charges.
3. Updates. ZOLL will provide Updates for the Supported Programs as and when developed for general release in ZOLL's sole discretion. Each Update will consist of a set of
programs and files made available on machine-readable media and will be accompanied by Documentation adequate to inform Customer of the problems resolved and any significant
operational differences resulting from installing the Update. Unless otherwise agreed by the parties,Customer will be solely responsible for the installation of any Updates in
accordance with the Documentation and the installation instructions provided by ZOLL to Customer. If Customer requests the ZOLL install updates,such Services shall be subject to
an SOW executed by the parties.
4. Customer Responsibilities.
4.1 Designated Interface. Only individuals who have been trained with respect to the Supported Programs shall serve as the Designated Interface with ZOLL for the Maintenance
Services provided hereunder.
4.2 Access to Personnel and Equipment. Customer shall provide ZOLL with access to Customer's personnel and its equipment during Support Hours. This access must include
the ability to remotely access the equipment on which the Supported Programs are operating and to obtain the same access to the equipment as those of Customer's employees having
the highest privilege or clearance level. ZOLL will inform Customer of the specifications of the remote access methods available and associated software needed,and Customer will
be responsible for the costs and use of said equipment.
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ZOLL Data Systems,Inc. Sales Order#:
MASTER SOFTWARE LICENSE AGREEMENT
Exhibit B-SERVICES
1. DEFINITIONS. Capitalized terms used in this Exhibit B but not defined in the MSLA shall have the meanings set forth herein.
2. SERVICES.
2.1 ZOLL Obligations. ZOLL agrees to provide the Services as more specifically described in,and in accordance with,any SOW executed under the MSLA.
2.2 Customer's Obligations.
(a) Access. Customer shall at its own expense provide or make available to ZOLL access to the Customer's premises,systems,telephone,terminals and facsimile machines
and all relevant information,documentation and staff reasonably required by ZOLL to enable ZOLL to perform the Services.
(b) Maintenance of Access Conditions. Customer is responsible for maintaining the conditions of access specified in clause 2.2(a)above and the SOW. ZOLL may suspend
its obligations during such period that such conditions of access are not maintained and Customer agrees to reimburse ZOLL for any reasonable costs incurred as a result of such
suspension at its then current time and materials rates.
(c) Other Obligations. Customer agrees to perform its obligations hereunder(including the SOW)in a timely manner and shall co-operate and provide ZOLL with requested
information to enable ZOLL to perform the Services. To the extent that ZOLL is performing work in accordance with specifications provided by Customer,Customer shall be solely
responsible for compliance with all laws and regulations.
3. EXTENSION OF TIME.
3.1 Delay. Customer acknowledges that time frames and dates for completion of the Services as set out in the SOW are estimates only and the ability to meet them is influenced by
a range of factors including: (a)the developing nature of the scope of work;(b)the performance of third party contractors involved in the process;(c)the contribution of resources by
the Customer;and(d)times of response by and level of co-operation of Customer. Obligations as to time are therefore on a"reasonable efforts"basis only and ZOLL shall not be
liable for failure to meet time frames or completion dates unless that is due to negligence of ZOLL.
3.2 Changes. Customer understands that ZOLL's performance is dependent in part on Customer's actions. Accordingly,any dates or time periods relevant to performance by
ZOLL hereunder will be appropriately and equitably extended to account for any delays resulting from changes due to Customer's acts or omissions. If either party proposes in
writing a change to the scope,timing,or duration of the Services,the other party will reasonably and in good faith consider and discuss with the proposing party the proposed change
and a revised estimate of the costs for such change.
3.3 Notification. Where in ZOLL's reasonable opinion there is likely to be a delay in the provision of Services under any SOW because of a cause beyond the reasonable control of
ZOLL(including default or delay of Customer in performing its obligations),ZOLL will: (a)notify Customer of the circumstances of the delay;(b)give details of the likely effect of
the delay and develop,at the Customer's expense,a strategy to manage the consequences of the delay;(c)request a reasonable extension of time;and(d)submit to Customer a
statement of the variations to the SOW resulting from the delay.
4. THIS SECTION INTENTIONALLY LEFT BLANK
5. OWNERSHIP AND LICENSE.
5.1 Ownership. ZOLL shall retain all right,title and interest in and to: (a)all software,tools,routines,programs,designs,technology,ideas,know-how,processes,techniques and
inventions that ZOLL makes,develops,conceives or reduces to practice,whether alone or jointly with others,in the course of performing the Services;(b)all enhancements,
modifications,improvements and derivative works of the Software and of each and any of the foregoing;and(c)all Intellectual Property Rights related to each and any of the foregoing
(collectively,the"ZOLL Property").
5.2 License. Provided that Customer is not in breach of any material term of the MSLA or any SOW,ZOLL grants Customer a non-exclusive,non-transferable license,without
rights to sublicense,to use the ZOLL Property that is incorporated into deliverables delivered pursuant to an SOW(each,a"Deliverable"),solely for Customer's own internal business
purposes in connection with the use of the Deliverable and the Software and solely for so long as the licenses to the Software granted pursuant to the MSLA remain in effect.
Page 8 of 10 Customer Initials:
ZOLL Data Systems,Inc. Sales Order#:
MASTER SOFTWARE LICENSE AGREEMENT
Exhibit C
DESCRIPTION OF LICENSE TYPES
The license to install and use the Software shall be in accordance with the following license options.The Software may contain a software license management tool(a"License
Manager")that regulates Customer's use of the Software.If so,all of the licensed activity described below must be subject to the control of the License Manager,and
Customer may not install or use the Software in a manner that circumvents or interferes with the operation of the License Manager or any other technological measure that
controls access to the Software.
'PL'-Principal License.Principal License grants Customer the right to install the Software on a Customer network drive or Customer owned compatible personal computer
that may be accessed and used by an unlimited number of employees,directors,principals,partners,consultants and agents of Customer(collectively,"Employees")as part
of the Customer's RescueNet System.Employees may not distribute the Software to persons and/or entities who are not Employees.
'NL'-Node License.Node License grants Customer the right to install the Software on an unlimited number of compatible personal computers/devices(each,a"Node"),but
the number of Nodes that can actively use the Software at any one time is limited by the total number of licenses purchased by the Customer.Once a license is made active
on a Node,it will remain active on that Node until either the Node times out,because no contact has been made between the Node and the server for a specified period of
time,or the local system administrator reassigns the license.When a license is reassigned from a Node,that Node will not be able to have another license assigned to it for a
defined period of time.When a Node drops a license because no contact has been made,that license becomes available to be assigned to a different Node by the local system
administrator.The Software may be accessed and used by an unlimited number of Customer users so long as the number of Nodes actively using the Software at any one
time does not exceed the total number of licenses purchased.
'CUL'-Concurrent User License.Concurrent User License grants Customer the right to install the Software on an unlimited number of servers for use concurrently by a
number of Customer users up to the number of user licenses Customer has purchased.The license is not limited to any specifically identified Customer users but is limited by
the total number of Customer users who may access the Software at any one time.
'PPL'-Population License.Population License grants Customer the right to install the Software on an unlimited number of compatible personal computers or servers for
use concurrently by an unlimited number of Customer users to manage a number of resources(i.e.crew members scheduled,vehicles tracked,etc.)which number of
resources is limited by the number of licenses Customer has purchased.The license is not limited to any specifically identified resources or users but is limited by the total
number of resource licenses that Customer has purchased as described above.
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