SOW_and_Draft_Agreement.docx

This document is a DRAFT provided only for the purposes of furthering negotiations between the parties. No party will be legally bound unless and until this document is executed by the parties and any actions taken in anticipation of such formal execution is at the risk of the person taking them.

WebEOC Subscription Agreement (Hosted Implementation)

This WebEOC Subscription Agreement (the “Agreement”), effective this 1 day of August 2026 (“Effective Date”), is made by and between ESi Acquisition, Inc. (“ESi”), a Delaware corporation with its principal place of business located at 211 Perimeter Center Parkway, NE, Suite 700, Atlanta, GA 30346 and Pierce County, Washington (“Client”), a State of Washington, county jurisdiction having its principal place of business located at 2501 S. 35th At., Tacoma, WA 98409. ESi and Client may individually be referred to as a “Party” herein, or the “Parties” collectively.

Upon execution of this Agreement by both Parties, Client understands and acknowledges: (i) no new Software is being provided to Client pursuant to this Agreement as Client already received a subscription based access to the ESi WebEOC® Software identified on Exhibit A to this Agreement and this Agreement is for a renewal of the Subscription to such WebEOC Software; and (ii) any previously executed agreements, including, without limitation, the Prior Agreement by and between the Parties for the WebEOC Software License/Subscription and related services thereto shall be terminated and replaced by this Agreement in all effects. Any payment obligations set forth in such Prior Agreements shall remain due and payable and shall survive such termination.

For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:

1. Agreement. This is a Software-as-a-Service (“SaaS”) based subscription agreement and not an agreement for sale. As of the Effective Date of this Agreement, this Agreement covers the WebEOC® Software Subscription and services (including Support Services) that Client purchases from ESi as a provider of Hosted/hosting services for the Software governed by this Agreement (“Services”) pursuant to Exhibits, Orders and Quotes hereto that are executed and/or agreed upon by both parties and expressly references this Agreement. This Agreement and all applicable Exhibits, Orders and Quotes hereto for Services and any attachments hereto and thereto are the complete agreement regarding ESi’s Services hereunder and replace any prior oral or written communications between Client and ESi relating to such transactions. Client agrees that purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by ESi regarding future functionality or features.

2. Definitions. Unless otherwise specifically stated in this Agreement or in any Exhibit or Quote hereto, the capitalized terms used in this Agreement shall have the meanings set forth below:

2.1 “Administrator” means an employee, officer, director or consultant of Client to whom Client has provided a user account and certain rights to administer the Software on behalf of Client.

2.2 “Active User” means a User that has logged in to the Software at any time, for any period of time, within any given calendar month.

2.3 “Affiliate” means an entity that controls, is controlled by, or is under common control with a party hereto.

2.4 “Client Data” means data input by Client or its authorized Users into the Software.

2.5 “Confidential Information” means as set forth in Section 8 to this Agreement.

2.6 “Consulting Services” means all the professional services for installation or implementation of Hosted Services or Software, training services, or other non-recurring services as set forth on Exhibit E hereto (as applicable); Consulting Services do not include Hosted Services or Support Services.

2.7 "Derivative Work(s)" means the work based on or derived from or modifications, enhancements or other functional extensions of the Software.

2.8 “Documentation” means the user manuals, requirements, specifications, training materials, and any other documents, materials, information or guidance, whether supplied as printed material or in electronic form, provided by ESi in conjunction with the purchase, training, use, technical support or update of the Software and Services provided hereunder.

2.9 “Fee” means the amounts due and payable by Client to ESi for the Subscription and Services pursuant to this Agreement; the Fee may be set forth on Exhibit C, as amended from time to time, to this Agreement or Quotes or Orders.

2.10 “Hosted Services” means as set forth in Exhibit D to this Agreement.

2.11 “Hosted System” means as set forth in Exhibit D to this Agreement.

2.12 “Installation” of the Software shall be deemed to be complete on the sooner to occur of (i) the day that the Software is available for production, (ii) the date of Client’s first use of the Software in a live production environment, or (iii) 90 days following the date of Client’s execution of this Agreement (or if for an amendment, Exhibit or Statement of Work adding Software, Modules, or Services under this Agreement, the Client’s execution of such subsequent amendment, Exhibit or Statement of Work).

2.13 “Internal Business Purpose” means the primary business purpose of the Client as established by articles of incorporation, operating agreement, enabling statute, agency rule or regulation, or any other documentation that defines Client’s primary business purpose; however, such Internal Business Purposes will be construed as narrowly as legally allowed and any overly broad business purposes will require further refining and supplementation in this Agreement.

2.14 “Juvare Cloud” means as set forth in Exhibit D to this Agreement.

2.15 “Message Credit” means one SMS segment or one 1-minute voice call.

2.16 “Module” means a proprietary set of status boards developed by ESi for use with selected WebEOC Software which are designed to address a common functional need.

2.17 “Party” means as defined in the preamble above.

2.18 “SMS Segment” Each time a SMS message is sent, it consists of "segments" depending on the number of characters used. Each segment is equal to 160 characters.

2.19 “Software,” means, individually and collectively, all of the software granted to Client from ESi via the Subscription as identified on Exhibit A hereto and Software Updates to such software.

2.20 “Software Support Plan” means the Support Services plan provided by ESi pursuant to Exhibit C and Quotes to this Agreement.

2.21 “Software Updates” means any technical correction, patch, bug fix, enhancement or other software release to the Software that is provided to Client pursuant to the Software Support Plan or the Software Subscription purchased by Client.

2.22 “Standard Business Hours” shall mean 9:00 a.m. through 6:00 p.m. U.S. Eastern Time, Monday through Friday, excluding holidays, and are subject to change by ESi.

2.23 “Sub-Administrator” shall mean as set forth in Section 6 of this Agreement.

2.24 “Subscription” means a SaaS based subscription for Client to use and access the proprietary Software, Software Updates, online and/or hard-copy documentation and user guides as set forth in Section 4 of this Agreement and for the Term set forth in Exhibit A.

2.25 “Support Services” means the technical support services provided by ESi pursuant to Section 11, Exhibit B and Exhibit C to this Agreement. May also be referred to as “Software Support Services.”

2.26 “Term” means as set forth in Section 5 of this Agreement.

2.27 "Travel Expenses" means travel, living and out of pocket expenses (including travel agent service fees and applicable internal per diems) incurred by ESi in connection with the performance of Services hereunder, including, without limitation, charges and fees incurred by ESi resulting from the cancellation/rescheduling of scheduled air travel or similar services based on changes requested by Client to the applicable dates for performance of the relevant Services.

2.28 “User” means an authorized employee, contractor or affiliate of Client to whom Client has provided a user account for the Software; User includes Administrators and Sub-Administrators.

3. Ownership and Licensing Authority.

3.1 Ownership of, and title to, the Software and Documentation shall be held by ESi and its licensor(s) and is protected by United States law and applicable international laws, treaties and conventions regarding intellectual property. ESi and its licensor(s) shall retain all rights, title and ownership not granted herein to all copies of the Software and Documentation provided as part of the Subscription under this Agreement. “WebEOC” is a registered trademark of ESi Acquisition, Inc., all rights reserved.

3.2 ESi is authorized to redistribute, license and/or provide subscriptions to any third-party software delivered with the Software and Documentation provided under this Agreement. The owner of such third-party software shall have the right to enforce this Agreement to the extent permitted by applicable law.

4. Subscription. ESi grants to Client, and Client accepts, subject to the following terms and conditions and payment of the applicable Fees, a limited non-exclusive, non-transferable, and non-sublicensable revocable term Subscription according to the terms stated herein, to use and access the Software and Documentation for the stated Term. Except as expressly authorized in this Agreement, Client shall not rent, lease, loan, sell, sublicense, distribute, transfer, copy, reproduce, display, modify, provide commercial hosting services, time share or dispose of the Software or Documentation or any part thereof, use the Software to provide any services to third parties or otherwise use the Software and Documentation to generate commercial revenue.

5. Term. The “Term” of this Agreement shall commence on the Effective Date (as defined on page 1) of this Agreement and shall continue through the sooner to occur of: (i) termination of this Agreement pursuant to the terms hereof, or (ii) expiration of the “Term” of the Subscription to the Software as set forth in Exhibit A (Exhibit A is herein incorporated and made part of this Agreement by this reference).

6. Permitted Uses. Client’s, and its User’s, access and use of the Software shall be limited and subject to the following terms and conditions:

a. One (1) Instance of the Software on one (1) Machine. As used herein, “Machine” means a single laptop, personal computer or web server, or a combined web and database server or multiple load-balanced web servers, configured to point to a single database and database server that is used operationally or “in production” (“Instance”).

b. Client may use the Software and Documentation solely for Client’s internal business purposes.

c. Client also may make one (1) copy of the Software for back-up or archival purposes.

d. Client also may use the Software to support “non-production” software development cycle activities if a non-production Subscription is purchased, as set forth in Exhibit A hereto.

e. If Client requires or desires operational use of more than one Instance of the Software, an additional Subscription Fees shall be required.

f. The Client’s storage capacity is set to the maximum as set forth on Exhibit A hereto. ESi shall have the right to conduct regular audits of Client compliance with the storage capacity permitted under this Agreement. In the event Client’s storage usage exceeds such capacity, Client will receive a warning notice (via email being sufficient) from ESi and Client shall promptly remove the excess data from the Hosted System (as defined on Exhibit D) causing the capacity excess or Client shall promptly purchase from ESi additional storage capacity in sufficient quantity at ESi’s then current rates for such additional storage; provided, however, if Client does not either remove such data or purchase the additional storage capacity within the time period specified in the warning notice (if no time period is specified in the notice, then thirty (30) calendar days shall apply), then ESi shall be entitled to delete the Client’s Data within the Hosted System on a first in-first out approach, without any liability to ESi.

g. The Subscription is on a named and Active User basis. Each Administrator, Sub-Administrator, and User shall have a unique user account. User accounts, usernames and passwords shall not be shared. There shall be no limitation on how many User accounts that Client may create; however, Client may only provide access to the number of Administrators, Sub-Administrators, and Active Users set forth in Exhibit A to this Agreement. Active User counts are based on the number of unique logins each calendar month. ESi shall have the right to conduct regular audits of Client compliance with the number of Active Users permitted under this Agreement. Client agrees to provide ESi with the information required, if any, for ESi to complete such audits. Such audits shall be conducted at ESi expense. Client shall not have the number of Active Users restricted during the term of Agreement; however, Client shall be in violation of Active User limits if the number of Active Users during any month covered by the audit is greater than the number of Active Users permitted in Exhibit A. Client shall be given reprieve or “forgiveness” for the first Active User limit violation in a contractual year period; however, all additional violations shall incur additional fees. Clients that incur the additional fees for Active User limit violations may elect to either (a) pay the difference in their current user level and the appropriate user level plus a 20% convenience fee for each month in which the Active User limit was exceeded; (b) immediately increase the Active User count to the appropriate level and pay the pro-rata difference between the subscriptions plus a 10% convenience fee within 30 days of the increase; or (c) immediately increase the Active User count to the appropriate level but pay the pro-rata difference between the subscriptions plus a 10% convenience fee, plus late fees as defined in Paragraph 16 upon subsequent renewal term.

h. Administrators, Sub-Administrators, and Users shall have different rights to access the Software as follows:

i. Administrators may access all features of the Software. Certain features of the Software may only be accessed by named users who are granted status as an Administrator (“Administration Tools”). Administration Tools include, without limitation, the following: creation and administration of user accounts; creation and subsequent editing of incidents; software configuration; use of the WebEOC BoardBuilder tool; installation and administration of board sets, plug-ins, modules, interfaces and Software Updates; and access to the Software’s Application Programming Interface.

ii. “Sub-Administrator” is a subset of Administrator Users as set forth in this subsection (ii) and such Sub-Administrators are only active if set forth on Exhibit A to this Agreement and if Client has subscribed to the WebEOC Enterprise Software. Sub-Administrator rights also shall be available solely to support management of Sub-Organizations. Sub-Administrators may access the following Administration Tools: creation of user accounts; management of user accounts including definition of roles and permissions; and creation and subsequent editing of incidents. Maintenance of Sub-Administrator rights requires the purchase of an annual “Enterprise” Software Support Plan. If Client elects to discontinue the required Software Support Plan, access to Sub-Administrator features and any other benefits of Enterprise which ESi may elect to make available from time to time shall be discontinued.

iii. Users may not be granted access to any Administration Tools, except that Administrators may grant designated Users rights to create or edit incidents and to add or edit maps in MapTac™.

i. Except where otherwise provided in this Agreement, rights to access and use Administrative Tools are given exclusively to the Client and Client may not grant such rights to any third party.

j. Client may provide its consultant(s) or independent contractor(s) with access to the Software and Documentation, provided that such consultants or independent contractors are using the Software and Documentation exclusively for the benefit of the Client. Client shall be responsible for compliance by its consultants and independent contractors with the terms and conditions of this Agreement.

k. If Client has subscribed to the WebEOC Enterprise Software or the WebEOC Professional Software, then Client may use the WebEOC BoardBuilder tool and, if subscribed to, the DesignStudio® solution, to copy, modify and create forms and templates (“Status Boards”) and Client may distribute, in printed form or as electronic media, the Status Boards to Client’s authorized users, provided that such Status Boards are used exclusively for the internal business purposes of Client. Status Boards shall be considered Derivative Work(s) of the Software and Client shall not sell, resell, license or otherwise transfer for value any Derivative Work(s) created using the WebEOC BoardBuilder tool or the DesignStudio® solution, and Client shall not distribute such Derivative Work(s) as part of any product or service for value to any third party. Any Derivative Work(s) prepared by Client shall remain subject to the terms of this Agreement and shall clearly display the following copyright notice to properly acknowledge the proprietary rights of ESi and its third-party licensors: “This work includes the intellectual property of ESi Acquisition, Inc. and its licensors and is provided under subscription/license. Copyright © 2002-2024, ESi Acquisition, Inc. and its licensors. All rights reserved.”

l. Client may, at its option and according to the terms of the ESi standard price list, obtain a Disaster Recovery Software Subscription to support replication of an active, source server to one or more redundant (“Target”) servers which may be placed in use to support disaster recovery or fail-over activities. A Disaster Recovery Software Subscription is required for each Target server. A Disaster Recovery Software Subscription may be used to operate an “in production” instance of the Software only when the source server is inactive or inoperable; only one Instance of the Software shall be active at any one time. Client is not required to obtain additional subscriptions for Software plug-ins, modules or interfaces installed on a redundant non-production Instance.

m. Permitted uses of WebEOC Fusion Software vary from the terms set forth in subsection (a) through (l) of this Section 6; in the event Client has purchased WebEOC Fusion Software, this subsection 6(m) shall apply: Client may install and place in production one (1) copy of WebEOC Fusion Software on one (1) source server and one (1) target server. Client may make one (1) copy of the WebEOC Fusion Software for back-up or archival purposes, or Client may install a second copy of the WebEOC Fusion Software on a second Machine if only one (1) copy of the WebEOC Fusion software is in use at any one time. There is no limit to the number of the Subscription Instances of WebEOC Fusion Software® (or number of WebEOC Fusion Software clients) which may be connected by a single instance of WebEOC Fusion Software, provided that (i) only the Client of the WebEOC Fusion Software has administrative privileges and administrative access to the WebEOC Fusion Software and (ii) the Client has paid to ESi all applicable connection fees.

n. A high-speed Internet connection is required for proper transmission of the Client Data into the Hosting Services and Software. Client, at its sole cost and expense, is solely responsible for procuring and maintaining the network connections that connect the Client network to the Hosting Services and Software, including, but not limited to, "browser" software that supports protocols used by ESi, and to follow procedures for accessing services that support such protocols. ESi is not responsible for notifying Client and its Users of any upgrades, fixes, or enhancements to any such software or for any compromise of data, including Client Data, transmitted across computer networks or telecommunications facilities (including but not limited to the Internet) which are not owned, operated, or controlled by ESi. ESi assumes no responsibility for the reliability or performance of any connections as described in this subsection.

o. Client and its Users agree to not: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share, or otherwise commercially exploit or make the Software and Hosting Services available to any third party, other than authorized Users in furtherance of Client’s Internal Business Purposes as expressly permitted by this Agreement; (ii) use the Software and Hosting Services to process data on behalf of any third party other than Client; (iii) modify, adapt, or hack the Software and Hosting Services, or otherwise attempt to gain unauthorized access to the Software and Hosting Services or related systems or networks; (iv) falsely imply any sponsorship or association with ESi, (v) use the Software and Hosting Services in any unlawful manner, including but not limited to violation of any person's privacy rights; (vi) use the Software and Hosting Services to send unsolicited or unauthorized junk mail, spam, pyramid schemes, or other forms of duplicative or unsolicited messages; (vii) use the Software and Hosting Services to store or transmit files, materials, data, text, audio, video, images, or other content that infringes on any person's intellectual property rights; (viii) use the Software and Hosting Services in any manner that interferes with or disrupts the integrity or performance of the Software and Hosting Services and its components; (ix) attempt to decipher, decompile, reverse engineer, or otherwise discover the source code of any software making up the Software and Hosting Services; (x) use the Software and Hosting Services to knowingly post, transmit, upload, link to, send, or store any content that is unlawful, racist, hateful, abusive, libelous, obscene, or discriminatory; (xi) use the Software and Hosting Services to store or transmit any "protected health information" as that term is defined in U.S. 45 C.F.R. 160.103 or “personal data” as that term is utilized in the Regulation 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation); (xii) use the Software and Hosting Services to knowingly post transmit, upload, link to, send, or store any viruses, malware, trojan horses, time bombs, or any other similar harmful software; or (xiii) try to use, or use the Software and Hosting Services in violation of this Agreement.

p. Communication Notifications.

i. Client acknowledges that all content, data, text, messages and other material (“Content”) contained in a voice, text, e-mail, Short Message Service (“SMS”), or other telephonic or electronic communication or notification, including without limitation prerecorded and artificial voice and autodialed messages sent by Client or its Users through the Services, Software, and/or Hosted Services (such communication or notifications collectively referred to hereinafter as “Communication Notification”) are the sole responsibility of Client. Under no circumstances will ESi or any of its providers be responsible for any loss, damage, or liability arising out of the Content or any Communication Notification, including without limitation any mistakes contained in the Content, the use, transmission or delivery of the Content, or any service outages or transmission delays. Without limitation, Client acknowledges that Client, and not ESi, is solely responsible for the timing, integrity, quality, legality, and all claims, liabilities, and other effects resulting from any Content or Communication Notification.

ii. Client agrees not to use the Services, Software, and/or Hosted Services to send any unsolicited Communication Notification in which the recipient has not expressly consented to receive the message (“consentless messages”), except that this provision shall not restrict Client’s ability, if acting as a government agency, to send IPAWS and emergency messages as permitted under law and subject to all the other terms and conditions of this Agreement. Client also certifies that it will not send or target any Communication Notification on the basis of any rented or purchased lists, email append lists, “scraped” lists, or any other list that contains contact information captured in any other method than opt-in. Client will not send any Communication Notification unless (a) the recipient of the message is an employee of Client sending the message, (b) is using a device owned or paid for by Client sending the message, (c) using a personal device and the User has given Client permission to communicate with them via the device, or (d) Client has obtained adequate “opt-in” consent from the User. Client acknowledges that it is Client’s sole responsibility to obtain prior consent from its Users or obtain other legal authority prior to sending any SMS or voice call.

iii. Client represents, warrants, and covenants that:

1. Client’s provision of data to ESi complies with applicable laws and is legally sufficient to enable ESi’s provision of services on Client’s behalf, including all use and sharing of data contemplated hereunder and in connection the Services, Software, and Hosted Services;

2. Client has, as required by law, (i) provided notices to and (ii) collected consents from each individual messaging recipient, and, for each of (i) and (ii), such notices and/or consents are legally sufficient to enable transmission and all other messaging (including without limitation any prerecorded or autodialed messages) to or from each individual through the Services, Software, and Hosted Services;

3. Client will only send or cause to be sent Communication Notifications in accordance with this Agreement and law;

4. Client will ensure that any phone numbers to be called or messaged via Communication Notifications exclude emergency numbers and other numbers that may not be called under law; and

5. Client will ensure that Content and Communication Notifications which Client sends or causes to be sent fully comply with all law, including without limitation all international, U.S. federal, state, local, provincial and other law, and including without limitation the General Data Protection Regulation (“GDPR), the Fair Debt Collection Practices Act (“FDCPA”), Telephone Consumer Protection Act (“TCPA”), the Telemarketing Sales Rule (“TSR”), Controlling the Assault of Non-Solicited Pornography And Marketing Act (“CAN-SPAM”), the Federal Trade Commission Act, Federal Trade Commission guidance and regulation, the Health Insurance Portability and Accountability Act, state laws governing consumer privacy and rights, and all implementing guidance and regulations under the foregoing.

iv. Client further represents, warrants, and covenants that it will not:

1. violate any regulation of the U.S. Securities and Exchange Commission or any stock exchange, infringe any third party intellectual property rights, invade another’s right to privacy, or violate any privacy laws, privacy policies of Client or any other third parties or do anything that would justify a complaint to the Federal Communications Commission;

2. engage or facilitate any illegal, unethical, deceptive or misleading practices in connection with the use of the Services, Software, and Hosted Services, including, but not limited to, creating a false identity or forged email, phone or message header or otherwise attempt to mislead others as to the identity of the sender or the origin of the message;

3. use the Services, Software, and/or Hosted Services in connection with any junk email, junk phone messages, misinformation campaign, spamming or any unsolicited messages (commercial or otherwise);

4. transmit, or allow any third parties to transmit, Content or other material with or through the Services, Software, and/or Hosted Services which: (i) is defamatory, libelous, obscene, pornographic or is harmful to minors; (ii) promotes violence, discrimination, or illegal activities; (iii) contains viruses, worms, cancelbots or any other harmful code or computer programs designed to disrupt the functionality of any computer software or hardware or telecommunications equipment; and/or (iv) contains sensitive financial or identifying information (including government-identification numbers); (v) is targeted or aimed at children under the age of 13; or (vi) is not properly licensed or authorized;

5. violate any law, statute, ordinance or regulation, (including without limitation the laws and regulations governing export control);

6. use the Services, Software, and/or Hosted Services to develop a competitive service, create derivative works, reverse engineer, disassemble, decompile, make unauthorized copies, or circumvent any controls;

7. use the Services, Software, and/or Hosted Services except for Client’s own internal purposes;

8. resell, sublicense or timeshare the Services, Software, and Hosted Services;

9. utilize the Services, Software, and/or Hosted Services on behalf of anonymous third parties;

10. use the Services, Software, and/or Hosted Services to carry messages for or connect with emergency services personnel or public safety answering points (such as 911);

11. use the Services, Software, and/or Hosted Services in hazardous environments or to support critical systems, including situations where high availability or reliability is required to preserve human life or property (such as the operation of nuclear facilities, aircraft navigation, or any other use that may result in foreseeable risk of injury, death, or destruction of property);

12. use the Services, Software, and/or Hosted Services for any surveillance purposes;

13. use the Services, Software, and/or Hosted Services to process any biometric data;

14. use the Services, Software, and/or Hosted Services to record audio, except in compliance with all applicable laws, including proper notice and consent which Client shall be solely responsible for obtaining; and

15. use the Services, Software or Hosted Service, including the transmission of Communication Notifications, in a manner that fails to comply with the following third party terms and conditions applicable as agreed by ESi, as now or in the future existing:

(a) Twilio Agreement (https://www.twilio.com/en-us/legal/tos)

(b) Twilio Acceptable Use Policy (https://www.twilio.com/en-us/legal/aup)

(c) Twilio Documentation (https://www.twilio.com/docs), and

(d) Twilio Data Protection Addendum (https://www.twilio.com/en-us/legal/data-protection-addendum).

(e) Amazon Service Terms (https://aws.amazon.com/service-terms/)

v. Client acknowledges and agrees that ESi utilizes third party internet, mobile, telecommunication providers to provide the Services, Software and Hosted Services, including Communication Notifications, including AWS and/or Twilio, Whispr, or Rave. Client will not cause ESi to become non-compliant with any such third party restrictions regarding the content, delivery, or timing of Communication Notifications. Client acknowledges and agrees that its continued use of the Services, Software, and/or Hosted Services may be subject to additional acceptable use, anti-spam, or technical use policies made available to Client by ESi. Client acknowledges that ESi services may become unavailable if ESi agreements with its third party mobile carriers, telecommunication carriers and companies, internet service providers, service providers and/or our or their designees or service partners become terminated or expired.

vi. Client acknowledges and agrees that violations of any law or condition set forth herein may result in immediate suspension or cancellation of the Services in order to protect ESi’s ability to deliver Services, Software, and Hosted Services. ESi may immediately suspend, limit or terminate the availability of the Services, Software, and/or Hosted Services (and any elements and features of them), in whole or in part, for any reason, in ESi’s sole discretion, and without advance notice or liability, including without limitation in circumstances where: (i) one of ESi’s third party internet, mobile, telecommunication providers directs ESi to suspend, limit or terminate services; or (ii) where Client fails to provide evidence, upon request, of Client compliance with law or related text messaging practices (such as consent collection and management processes). Though it is not required to do so, ESi may at its sole discretion determine whether a Communication Notification meets acceptable criteria and will be uploaded to the Software. Client agrees that it will not construe any such determination by ESi as legal or other advice to Client.

vii. Client expressly acknowledges and agrees that ESi, third party mobile carriers, telecommunication carriers and companies, internet service providers, service providers and/or our or their designees or service partners are each authorized to monitor Client’s use of messaging services for fraud, abuse or non-compliance with law or their policies, and to take steps in their absolute and sole discretion, and without liability to Client, to prevent or limit such activity as assessed by them. Client agrees to cooperate and comply at Client’s sole expense with any audit or informational requests from ESi, third party mobile carriers, telecommunication carriers and companies, internet service providers and our or their auditors, designees or regulators, to audit, review, or gather information about Client’s use of ESi’s Services, Software, and Hosted Services, including to demonstrate Client’s compliance with applicable law. Client specifically understands and agrees that Client’s continued use of the Services, Software, and/or Hosted Services may be subject to Client’s provision of information, including in a form required by ESi, regarding the specific notice, consent, messaging content, recipient list, and other details of Client’s planned and other messaging campaigns. ESi may share such information with third parties, including third party mobile carriers, telecommunication carriers and companies, internet service providers and our or their auditors, service providers, designees or regulators, including in connection with reviews for compliance or best practices.

viii. Notwithstanding that ESi may offer or provide template notices, consents, or other materials supporting Client messaging, or may facilitate or conduct reviews of Client’s messaging practices, Client acknowledges and agrees that ESi is not and shall have no responsibility to advise or ensure that Client’s use of ESi services, including Communication Notification, complies with law. ESi does not provide legal advice. If using any artificial intelligence-related service or functionality available via the Services, Software and Hosted Services, Client acknowledges that it is solely responsible for all use or reliance (including action or inaction) with respect to the same. You are responsible for notifying us in the event that any content stored by artificial intelligence-related service or functionality must be deleted under applicable law.

ix. Client hereby acknowledges that ESi merely provides Software for facilitating the sending of Client’s Communication Notifications, and that Client shall have sole responsibility and liability for its messages and communications. Delivery, delivery timing, and deliverability of e-mail, voice notifications, and text/MMS/SMS messages are not guaranteed by ESi and may be impacted by third party internet, mobile or telecommunication carriers, service providers and/or their designees or service partners.

x. As between Client and ESi, Client affirms that it is solely responsible for complying with all laws, rules and regulations, including maintaining an accurate record of the status of a recipient’s consent, revocations of consent, and any Do Not Call obligations, including the language consented to and the date of consent and revocation, if applicable, and all such records will be retrievable. Upon request by ESi, Client will provide proof of any such recipient consent status.

xi. Client also agrees to defend, indemnify and hold harmless ESi and its employees, affiliates, agents, attorneys, and officers from and against any and all claims or damages which may result from the Client and its Authorized Users use of the Services, Software, and Hosted Services, including, but not limited to, claims, damages, liabilities, fines, assessments, penalties, suits, fees, judgments, costs, expenses (including attorneys’ fees) (collectively, “Losses”) as well as inquiries and investigations by local, state and federal regulators. Without limitation, Client’s obligation to defend, indemnify and hold harmless under the previous sentence shall extend to all Losses resulting from or relating to any and all of Client’s actions which constitute a failure to comply with this Section p, including without limitation a failure to comply with the TCPA and its implementing regulations, as well as any applicable federal or state law requirements in conjunction with the use of the Services, Software, and/or Hosted Services provided under this Agreement. ESi may assume control of the defense with counsel of its choice immediately upon written notice to Client. Client agrees to participate with ESi as requested and at Client’s own expense in any litigation, investigation or regulatory action impacting ESi that arises under or relates to Losses resulting from or relating to Client’s use of Services, Software, and/or Hosted Services to send Communication Notifications.

xii. If Communication Notifications are included in the Fees set forth on Exhibit C, such Fees are for Communication Notifications to U.S. based telephone numbers only; ESi will invoice Client, and Client shall pay such invoice, for any Communication Notifications sent to telephone numbers that are not U.S.-based. Additionally, each subscription of WebEOC Alerts is allocated a defined number of Message Credits that can be used for SMS notifications and voice calls, to be noted on Exhibit A, Exhibit C, and/or other documentation contemporaneously with this Agreement. If Client exceeds the allotment of Message Credits without purchasing an additional Message Credit Bundle, an overage penalty will be charged at the rate of $0.06 per Message Credit used for US-based telephone numbers. ESi shall invoice as appropriate for international telephone numbers.

xiii. Client shall promptly pay additional fees, including reimbursements to ESi, not otherwise reflected in this agreement or its exhibits which may now or in the future be charged by internet, mobile or telecommunication carriers, regulators, taxing authorities, service providers and/or their designees or service partners in connection with the delivery of Communication Notifications.

q. As part of its Services, Software and Hosted Services, ESi may provide or make available certain messaging features that permit communications between end users, such as the “JX® Collaborate” messaging feature, or similar features as may become available in the future (such features collectively, “Messaging Features”). Client understands and agree that it, not ESi, is solely responsible for the configuration and use of Messaging Features by its end-users in compliance with law. Client further understand and agrees that communications through Messaging Features may be stored and shared real-time with Juvare and its providers. Client will provide notice and obtain appropriate consent from its end-users having accessing to Messaging Features sufficient to legally enable the utilization of such Messaging Features by Client and its end-users.

r. As part of its Services, Software and Hosted Services hosted by ESi or its providers, ESi may deploy user monitoring, analytics, and session replay tools. These tools help ESi to understand how users experience its platform and can be used for other purposes such as troubleshooting, security monitoring, and to customize and enhance services. You understand and agree that ESi may use such tools, including storing and sharing information real-time from such tools about your end-users’ use of ESi services with ESi and its providers. Client will provide notice and obtain appropriate consent from its end-users accessing Services, Software and Hosted Services hosted by ESi or its providers sufficient to legally enable the utilization of such user monitoring, analytics, and session replay tools.

7. Protection of Software. Client agrees to take all reasonable steps to protect the Software and Documentation from unauthorized copying or use. The Software source code represents and embodies trade secrets of ESi and/or its third-party licensors. The Software source code and embodied trade secrets are not licensed to the Client. Client agrees not to disassemble, decompile or otherwise reverse engineer the Software, use reflection or other mechanism to view, interpret, translate or try to understand the structure of the Software, or otherwise attempt to discover the source code and/or the trade secrets contained in the source code, and Client will not allow third parties to do so. Client may not, nor allow third parties to, modify or alter the Software in any way.

8. Confidentiality.

8.1 Confidential Information Defined. During the Term of this Agreement and in connection with each party’s performance of their respective duties and obligations hereunder and thereunder, each party will disclose to the other (“Discloser”) and the other party shall receive (“Recipient”) certain Confidential Information of the Discloser. The term “Confidential Information” shall mean any and all information that the Discloser discloses to the Recipient in connection with or related to this Agreement, whether disclosed verbally, electronically, visually, or in a written or other tangible or intangible form, including, but is not limited to, trade secrets, pricing information, terms of this Agreement, customers, customer lists, intellectual property, computer programs, software, documentation, formulas, data, inventions, techniques, financial, marketing or product development plans, personnel, audit results, designs, performance data, as to ESi, the ESi Technology and any other deliverables (including, without limitation, data, information, computer code and reports) provided in connection with the Software, and, as to Client, the Client Data, as well as any other information that the Discloser clearly communicates to the Recipient as confidential.

8.2 Duties with Regard to Confidential Information. The Recipient agrees that it will only use the Discloser’s Confidential Information in the performance of its obligations hereunder or as otherwise expressly provided in this Agreement, and that it will only disclose the Discloser’s Confidential Information only to those of its directors, officers, employees, consultants, agents, independent contractors, and professional advisers who need to know such information and who are subject to written agreements with the Recipient sufficient to enable the Recipient to require such persons to comply with the Recipient’s confidentiality obligations hereunder. The Recipient agrees that it will treat all of the Discloser’s Confidential Information with the same degree of care (but no less than reasonable care) as it accords its own confidential information.

Notwithstanding the foregoing or ESi’s obligations elsewhere in this Section, Client understands that ESi does not require any information for the performance of Services hereunder, and that ESi cannot guarantee the security of Client Information when added to the Juvare Exchange®, stored on Client’s applicable equipment and hardware or transmitted or accessible when using the internet or other services providers. ESi shall not be liable or responsible to Client or any other party for any losses, damages, claims, costs or other obligations arising out of or relating to any unauthorized access to, disclosure or use of information stored by Client on the System, including, without limitation, within the Juvare Exchange, or while such information is transmitted or accessible through the Software, the internet, or services providers. Additionally, ESi shall not be responsible for any breach of security or confidentiality caused by Client’s failure to maintain the confidentiality and control of its user identification numbers or passwords related to its use of the Software provided hereunder.

8.3 Exclusions from Confidential Information. Confidential Information does not include information that (a) is or becomes generally available to the public other than as a result of an unauthorized disclosure by the Recipient or its personnel; (b) has been or is obtained by the Recipient from an independent source without accompanying obligations of confidentiality; (c) is independently developed by the Recipient without reliance in any way on the Discloser’s Confidential Information; or (d) has been approved for unrestricted release by the Discloser in writing. Additionally, the Recipient may disclose the Discloser’s Confidential Information where the Recipient is required by law to disclose information that is otherwise Confidential Information, provided (to the extent not prohibited by law) the Recipient has first notified the Discloser in writing as soon as is commercially reasonable of such requirement to disclose the Discloser’s otherwise Confidential Information in order to permit the Discloser to seek confidential treatment of such information. With respect to any disclosure made pursuant to this Section, the Recipient (or any of its Representatives) agrees to furnish only that portion of the Confidential Information that it reasonably determines, in consultation with its counsel, is necessary under applicable law. Additionally, Client agrees to reimbursement ESi at its then current hourly rate for such services for the number of hours spent by ESi responding to legal requests for Client Information in ESi possession.

8.4 Protection of Confidential Information. Notwithstanding the “Dispute Resolution” Section of this Agreement, the Recipient acknowledges that the Discloser shall have the right to take all reasonable steps to protect the Discloser’s confidential and proprietary interests, including, but not limited to, injunctive relief in a court of law or equity and any other remedies as may be available at law or in equity in the event the Recipient does not fulfill its obligations under this Section.

8.5 Survival of Confidentiality Obligations. Each party’s obligations of confidentiality pursuant to this Section for all Confidential Information disclosed between the parties during the term of this Agreement shall survive the expiration or termination of this Agreement as follows: (i) for Confidential Information consisting of trade secrets, for so long as such information remains a trade secret of the Discloser or for five (5) years following the expiration or termination of this Agreement, whichever is longer, (ii) for Confidential Information consisting of the Discloser’s customer information or ESi’s suppliers’ information, indefinitely, and (iii) for all other Confidential Information, for five (5) years following the expiration or termination of this Agreement.

8.6 Termination of This Agreement. Upon termination of this Agreement or upon the Discloser’s written request, the Recipient agrees to terminate all use of the Discloser’s Confidential Information and to either return to the Discloser all copies of the Discloser’s Confidential Information in its possession or under its control or to provide the Discloser with a written notice from one of the Recipient’s authorized representatives certifying that all copies of the Discloser’s Confidential Information in the Recipient’s possession or control have been destroyed; provided, however, the Recipient may (at its option, but not its obligation) keep a copy of the Discloser’s Confidential Information in its archives, and the provisions of this Section shall continue with respect to such Confidential Information. Notwithstanding the foregoing, in no event shall any Client Confidential Information, including, without limitation, the Client Data, that is entered into or shared in the Juvare Exchange be returned to Client or removed from the Juvare Exchange; Client understands and acknowledges that any Client Confidential Information, including, without limitation, the Client Data, entered into the Juvare Exchange is visible and viewable by other Juvare Exchange users and is not secure or held confidential.

9. Proprietary Interests. The Software and Documentation, and all copies thereof, shall remain the exclusive property of ESi and/or its third-party licensors. All applicable rights to copyrights, trademarks, logos, patents and other intellectual property shall remain vested in ESi and/or its third-party licensors. Client shall not claim, register, alter or modify, any interest in such copyrights, trademarks, patents or other intellectual property, nor shall Client nor attempt to do any of the foregoing. Client shall not translate any of the ESi trademarks into any other language or alphabet.