2017-537-E ES - ESO Solution, Inc. for EHR billing software

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DocuSign Envelope ID:5217DEC1-2EF1-4A49-AD1 F-F6CBCC3F8A9E In the event that public funds are unavailable and not 6.4.3. Termination of this Agreement is without prejudice appropriated for the performance of Customer's to any other right or remedy of the parties and shall obligations under this Agreement,then this not release either party from any liability(a)which Agreement shall automatically expire without at the time of termination,has already accrued to penalty to Customer immediately upon written notice the other party,(b)which may accrue in respect of any act or omission prior to termination,or(c)from to ESO of the unavailability and non-appropriation of any obligation which is intended to survive public funds.It is expressly agreed that Customer termination. shall not activate this non-appropriation provision for its convenience or to circumvent the requirements of 6.5. Delivery of Data. Upon the expiration or termination of this Agreement,but only as an emergency fiscal this Agreement,ESO will provide Customer access to measure during a substantial fiscal crisis. Customer Data in either,at Customer's request,searchable Portable Document Format or XML format file within a In the event of a change in the Customer's statutory reasonable time frame thereafter.After Customer authority,mandate and/or mandated functions,by acknowledges receipt of Customer Data,ESO is under no obligation to retain Customer Data more than one(1)year state and/or federal legislative or regulatory action, after expiration or termination of this Agreement. which adversely affects Customer's authority to continue its obligations under this Agreement,then 7. REPRESENTATIONS AND WARRANTIES this Agreement shall automatically terminate without penalty to Customer upon written notice to ESO of 7.1. Material Performance of Software.ESO warrants and such limitation or change in Customer's legal represents that the Software will materially perform in authority. accordance with the Documentation provided by ESO,if any. 6. TERM AND TERMINATION 7.2. Warranty of Services.ESO wan-ants that its personnel are 6.1. Term.The term of this Agreement(the"Term")shall adequately trained and competent to perform Professional commence on the Effective Date and continue for the period Services and/or Support Services and that each will be set forth in the applicable Software Schedule or,if none,for performed in a professional and workmanlike manner. one year.Thereafter,the Agreement and associated pricing may be renegotiated and renewed upon mutual written 7.3. Due Authority.Each party's execution,delivery and consent of the parties.The license period or subscription performance of this Agreement and each agreement or period shall begin on the date specified in the applicable instrument contemplated by this Agreement has been duly Software Schedule,and this Agreement shall automatically authorized by all necessary corporate or government action. be extended to ensure that the contract Term is coterminous with the subscription period or license period,as applicable. 7.4. Customer Cooperation.Customer agrees to reasonably and timely cooperate with ESO,including but not limited to 6.2. Termination for Cause.Either party may terminate this providing ESO with reasonable access to its equipment, Agreement or any individual Software Schedule for the software,data and using current operating system(s). other party's material breach by providing written notice. The breaching party shall have fifteen days from receipt to 8. DISCLAIMER OF WARRANTIES.EXCEPT AS cure such breach to the reasonable satisfaction of the non- OTHERWISE PROVIDED IN SECTION 7,ESO HEREBY breaching party,except for a breach of Section 4.2 where DISCLAIMS ALL WARRANTIES,EXPRESS OR IMPLIED, termination may be immediate. INCLUDING,WITHOUT LIMITATION,ALL IMPLIED WARRANTIES OF MERCHANTABILITY,FITNESS FOR A 6.3. Bankruptcy/Insolvency.This Agreement and any applicable PARTICULAR PURPOSE,PERFORMANCE,SUITABILITY, Software Schedule maybe terminated immediately upon the TITLE,NON-INFRINGEMENT,OR ANY IMPLIED following:(a)the institution of insolvency,receivership or WARRANTY ARISING FROM STATUTE,COURSE OF bankruptcy proceedings or any other proceedings for the DEALING,COURSE OF PERFORMANCE,OR USAGE OF settlement of debts of the other party;(b)the making of an TRADE.WITHOUT LIMITING THE GENERALITY OF THE assignment for the benefit of creditors by the other party;or FOREGOING:(a)ESO DOES NOT REPRESENT OR (c)the dissolution of the other party. WARRANT THAT THE SOFTWARE WILL PERFORM WITHOUT INTERRUPTION OR ERROR;AND(b)ESO 6.4. Effect of Termination. DOES NOT REPRESENT OR WARRANT THAT THE SOFTWARE IS SECURE FROM HACKING OR OTHER 6.4.1. If Customer terminates this Agreement or any UNAUTHORIZED INTRUSION OR THAT CUSTOMER Software Schedule as a result of ESO's breach,then DATA WILL REMAIN PRIVATE OR SECURE.CUSTOMER to the extent that Customer has prepaid any Fees, THEREFORE ACCEPTS THE SOFTWARE"AS-IS"AND"AS ESO shall refund to Customer any prepaid Fees on a AVAILABLE." pro-rata basis to the extent such Fees are attributable to the period after the termination date. 9. CONFIDENTIALITY 6.4.2. Upon termination of this Agreement or any 9.1. "Confidential Information"refers to the following items:(a) Software Schedule,Customer shall cease all use of any document marked"Confidential";(b)any information the Software and delete,destroy or return all copies orally designated as"Confidential"at the time of disclosure, of the Documentation and Licensed Software in its provided the disclosing party confirms such designation in possession or control,except as required by law. writing within five(5)business days;(c)the Software and