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DocuSign Envelope ID:5217DEC1-2EF1-4A49-AD1 F-F6CBCC3F8A9E
<br /> Documentation,whether or not designated confidential;and solely for the purpose of completing its review and approval
<br /> (d)any other nonpublic,sensitive information reasonably processes under its local rules,if applicable.
<br /> considered a trade secret or otherwise confidential.
<br /> Notwithstanding the foregoing,Confidential Information 10. INSURANCE.Throughout the term of this Agreement,and for a
<br /> does not include information that:(i)is in the other party's period of at least three(3)years thereafter for any insurance
<br /> possession at the time of disclosure;(ii)is independently written on a claims-made form,ESO shall maintain in effect the
<br /> developed without use of or reference to Confidential insurance coverage described below:
<br /> Information;(iii)becomes known publicly,before or after
<br /> disclosure,other than as a result of a party's improper
<br /> action or inaction;(iv)is approved for release in writing by 10.1. Commercial general liability insurance with a minimum of
<br /> the disclosing party;(v)is required to be disclosed by law; $1 million per occurrence and$1 million aggregate;
<br /> or(vi)PHI,which shall be governed by the Business
<br /> Associate Agreement rather than this Section. 10.2. Commercial automobile liability insurance covering use of
<br /> all non-owned and hired automobiles with a minimum limit
<br /> 9.2. Nondisclosure.The parties shall not use Confidential of$1 million for bodily injury and property damage
<br /> Information for any purpose other than to fulfill the terms of liability;
<br /> this Agreement(the"Purpose").Each party:(a)shall ensure
<br /> that its employees or contractors are bound by 10.3. Worker's compensation insurance and employer's liability
<br /> confidentiality obligations no less restrictive than those insurance or any alternative plan or coverage as permitted
<br /> contained herein and(b)shall not disclose Confidential or required by applicable law,with a minimum employer's
<br /> Information to any other third party without prior written liability limit of$1 million each accident or disease;and
<br /> consent from the disclosing party.Without limiting the
<br /> generality of the foregoing,the receiving party shall protect 10.4. Computer processor/computer professional liability
<br /> Confidential Information with the same degree of care it insurance("Technology Errors and Omissions")covering
<br /> uses to protect its own confidential information of similar the liability for financial loss due to error,omission or
<br /> nature and importance,but with no less than reasonable negligence of ESO,and Privacy and Network Security
<br /> care.A receiving party shall promptly notify the disclosing insurance("Cyber")covering losses arising from a
<br /> party of any misuse or misappropriation of Confidential disclosure of confidential information,with a combined
<br /> Information of which it is aware. aggregate amount of$5 million.
<br /> 9.3. Disclosure of ESO's Security Policies.Customer 11. INDEMNIFICATION
<br /> acknowledges that any information provided by ESO
<br /> pertaining to ESO's security controls,policies,procedures,
<br /> 11.1. IP Infringement.ESO shall defend and indemnify Customer
<br /> audits,or other information concerning ESO's internal from any damages,costs,liabilities,expenses(including
<br /> security posture are considered Confidential Information reasonable and actual attorney's fees)("Damages")actually
<br /> and shall be treated by Customer in accordance with the incurred or finally adjudicated as to any third-party claim or
<br /> terms and conditions of this Agreement.
<br /> action alleging that the Software delivered pursuant to this
<br /> Agreement infringe or misappropriate any third party's
<br /> 9.4. Injunction.Omitted. patent,copyright,trade secret,or other intellectual property
<br /> rights enforceable in the applicable jurisdiction(each an
<br /> 9.5. Termination&Return.With respect to each item of "Indemnified Claim").if an Indemnified Claim under this
<br /> Confidential Information,the obligations of nondisclosure Section occurs or if ESO determines that an Indemnified
<br /> will terminate three(3)years after the date of disclosure; Claim is likely to occur,ESO shall at its option:(a)obtain a
<br /> provided that,such obligations related to Confidential right for Customer to continue using such Software;(b)
<br /> Information constituting ESO's trade secrets shall continue modify such Software to make it a non-infringing
<br /> so long as such information remains subject to trade secret equivalent or(c)replace such Software with a non-
<br /> protection pursuant to applicable law.Upon termination of infringing equivalent.If(a),(b),or(c)above are not
<br /> this Agreement,a party shall return all copies of reasonably available,either party may,at its option,
<br /> Confidential Information to the other or certify,in writing, terminate this Agreement and/or relevant Software
<br /> the destruction thereof. Schedule.ESO will refund any pre-paid Fees on a pro-rata
<br /> basis for the allegedly infringing Software provided.
<br /> 9.6. Retention of Rights.This Agreement does not transfer Notwithstanding the foregoing,ESO shall have no
<br /> ownership of Confidential Information or grant a license obligation hereunder for any claim resulting or arising from
<br /> thereto. (x)Customer's breach of this Agreement;(y)modifications
<br /> made to the Software that were not performed or provided
<br /> by or on behalf of ESO or(z)the combination,operation or
<br /> 9.7. Open Records and Other Laws.Notwithstanding anything use by Customer or anyone acting on Customer's behalf of
<br /> in this Section to the contrary,the parties expressly the Software in connection with a third-party product or
<br /> acknowledge that Confidential Information may be service(the combination of which causes the infringement).
<br /> disclosed if such Confidential Information is required to be To the extent allowed by law,this Section 11 states ESO's
<br /> disclosed by law,a lawful public records request,or judicial sole obligation and liability,and Customer's sole remedy,
<br /> order,provided that prior to such disclosure,written notice for potential or actual intellectual property infringement by
<br /> of such required disclosure shall be given promptly and the Software.
<br /> without unreasonable delay by the receiving party in order
<br /> to give the disclosing party the opportunity to object to the
<br /> disclosure and/or to seek a protective order.The receiving 1 1.2. Indemnification Procedures. Notwithstanding the
<br /> party shall reasonably cooperate in this effort.In addition, following,in no circumstance will the Customer indemnify
<br /> Customer may disclose the contents of this Agreement ESO. Upon becoming aware of any matter which is subject
<br /> to the provisions of Sections 11.1 (a"Claim"),the party
<br /> seeking indemnification(the"Indemnified Party")must
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