24-15 emsCharts Agreement.pdf

days prior written notice of termination of this Agreement and to either find alternate means of providing the same or similar services to Customer or to provide any source code necessary for Customer to create software or transfer or download data to another software product that can produce similar functionality for Customer. The provisions of such source code for the limited purposes set forth in this paragraph shall not transfer to Customer any ownership interest in the source code and shall not affect Vendor’s ownership tights in the source code and the emsCharts System. 75 Termination of License. Upon termination of this Agreement for any reason, Customer’s license to access and use the emsCharts System and the right or authority of any other users designated or authorized by Customer to access and use emsCharts shall cease immediately. Thereafter, neither Customer nor any user designated or authorized by Customer emsCharts Service Agreement, v12.3 Page 5 of 19

shall access or use emsCharts for any reason or purpose without the express written authorization of Vendor. 7.6 Survival after Termination. The obligations, limitations and restrictions set forth in Sections 4.1, 4.2, 4.3, 4.4, 5, 6.1, 6.2, 6.4, 7.4, 7.5, 9.1, 9.2, 9.3, 9.4, 10.1, 10.2, 10.3 and 10.4 of this Agreement shall survive any termination of this Agreement. 8. WARRANTIES 8.1 Limited Warranty. Vendor represents and warrants that: (a) it is a corporation in good standing under the laws of Pennsylvania with full authority to execute and perform this Agreement; and (b) emsCharts, emsCharts Pocket, emsCharts Mobile, and emsCharts Modules will perform in accordance with the specifications provided as part of the User Manual and in accordance with the Maintenance and Service Level Guidelines set forth in Attachment A. 8.1.1 This limited warranty shall not apply if Customer has not complied with all the requirements of this Agreement, including the hardware and software requirements set forth in the User Manual. 8.2 No Other Warranties. THE LIMITED WARRANTIES CONTAINED IN THIS SECTION ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED (WHETHER ARISING BY COURSE OF DEALING, PERFORMANCE, CUSTOM, USAGE IN THE TRADE OR PROFESSION, OR OTHERWISE), INCLUDING, BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY, OR WARRANTY OF FITNESS FOR 4 PARTICULAR PURPOSE. 8.3 No Oral or Conflicting Warranties. No Vendor employee or representative is authorized to make any promise or warranty to Customer that differs from or adds to the warranties set forth in this Agreement, and no such promise or warranty shall be effective unless set forth in writing and signed by an officer of Vendor. 9, DAMAGES, LIABILITY, LEGAL REMEDIES 9.1 Limitation of Liability. Notwithstanding anything in this Agreement to the contrary, in no event shall Vendor (or any member, officer, employee, agent or other representative) have obligations or liability to Customer or any other person for loss of profits, loss of use, loss of good will, or incidental, special or consequential damages or costs associated therewith, whether based in contract, tort, strict liability, or any other theory or form of action arising out of or in connection with any service, product, act, inaction, duty, warranty, promise, obligation or representation of Vendor (or any member, officer, employee, agent or

or form of action arising out of or in connection with any service, product, act, inaction, duty, warranty, promise, obligation or representation of Vendor (or any member, officer, employee, agent or other emsCharts Service Agreement, v12.3 Page 6 of 19

representative), even if Vendor has been advised of, knew or should have known of the possibility thereof. 9.2 Limitation of Damages. Damages for non-performance are limited to the damages set forth in Attachment A. If for any reason it is determined that Vendor is liable to Customer for money damages, in no event shall the liability of Vendor (or any member, officer, employee, agent or other representative) in connection with any loss of data, service, product, act, inaction, duty, warranty, promise, obligation or representation, exceed the greater of (i) the actual amount paid by Customer to Vendor under this Agreement; or (ii) the amount of insurance proceeds payable to Customer under Vendor’s policies. 9.3 Applicable Law and Jurisdiction. Subject to the limitations of Section 9.4, the parties agree that any claim, action or dispute, whether at law or in equity, between them and arising out of this Agreement or the existence, use, condition, validity, function or operation of emsCharts, and emsCharts Mobile shall be governed by the laws of New Jersey and shall be brought only in the Superior Court of New Jersey, Essex County, or in the United States District Court for the District of New Jersey. By executing this Agreement, Customer, and Vendor submit themselves to the jurisdiction of the Superior Court of New Jersey, and/or the United States District Court for the District of New Jersey for all legal and equitable matters arising out of this Agreement and the existence, use, condition, validity, function or operation of emsCharts, and emsCharts Mobile. 9.4 Qptional Arbitration. In the event of a dispute arising in connection with this Agreement, including the breach thereof, if the parties agree in writing, the dispute may be resolved by binding arbitration according to the rules of the American Arbitration Association at an arbitration proceeding conducted in Pittsburgh, Pennsylvania. The award of the arbitrator(s) may thereafter be entered in any court having jurisdiction thercof. 10. ACCESS TO BOOKS AND RECORDS 10.1 Vendor Documents. Vendor agrees that it will retain and make available upon request of the Secretary of the Department of Health and Human Services, or the Comptroller General of the United States, or any of their authorized representatives, any agreements between health care providers and Vendor and all books, documents and records

uman Services, or the Comptroller General of the United States, or any of their authorized representatives, any agreements between health care providers and Vendor and all books, documents and records necessary to verify the nature and extent of the costs and the services provided under this Agreement. Vendor agrees to retain all such books, documents and records, and to hold them available for such inspection until the expiration of four years after the completion of this Agreement. Vendor agrees to promptly notify Customer of any request it receives for access to Vendor records and to furnish a copy of such request. The regulations require that access be given within twenty (20) days from the date of the request, unless written objection is made. If Customer deems such request to be inappropriate, then it may file an objection. Any proceeding regarding Customer objections will be pursued at Customer’s sole cost and expense, provided, however, that Vendor will provide reasonable cooperation with Customer. 10.2 Customer Documents. Customer agrees that it will retain and make available upon request of the Secretary of the Department of Health and Human Services, or the emsCharts Service Agreement, v12.3 Page 7 of 19

Comptroller General of the United States, or any of their authorized representatives, any agreements between health care providers and Customer, and all books, documents and records necessary to verify the nature and extent of the costs and the services provided under this Agreement. Customer agrees to retain such books, documents and records, and to hold them available for such inspection until the expiration of four years after the completion of this Agreement. Customer agrees to promptly notify Vendor of any request it receives for access to Customer records and to furnish a copy of such request. The regulations require that access be given within twenty (20) days from the date of the request, unless written objection is made. If Vendor deems such a request to be inappropriate, then it may file an objection. Any proceeding regarding Vendor objections will be pursued at Vendor’s sole cost and expense, provided, however, that Customer will provide reasonable cooperation with Vendor. 10.3. Subcontractors. Vendor and Customer agree that their subcontractors will similarly be required by them to retain and give access to similar books, documents and records. 10.4 Compliance with Requests. Compliance with any governmental request for information shall not provide a basis for a claim for any compensation under this Agreement. 11. MISCELLANEOUS 41.1 Assignment. The rights and obligations of either party under this Agreement shall not be assignable, whether by contract, merger, operation of law or otherwise, without the prior written consent of the other, Notwithstanding the foregoing, the rights and obligations of either party may be assigned to a successor corporation or entity of either party or a corporation or entity that purchases or obtains all or substantially all of the assets of cither party. Vendor may also assign its rights and obligations to a corporation or other entity wholly or partly owned by Vendor. 11.2 Force Majeure. If the performance of any party to this Agreement is prevented, hindered, delayed or otherwise made impracticable by reason of any flood, hurricane, tornado, snow, tiot, war, conflict, fire, judicial or governmental action, labor disputes, interruption of telephone lines or electronic delivery systems, software or computer hardware defect or viruses (not caused by Vendor or someone under the control of Vendor), acts or

, labor disputes, interruption of telephone lines or electronic delivery systems, software or computer hardware defect or viruses (not caused by Vendor or someone under the control of Vendor), acts or omissions of third parties outside the control of Vendor (including but not limited to acts or omissions of any third party service provider or equipment vendor, messenger service or telephone carrier), acts of God, or any other causes or conditions reasonably beyond the control of either party, that party shall be excused from such performance to the extent and for the time period that such performance is prevented, hindered or delayed by such causes. 11.3. Entire Agreement. This Agreement constitutes the full understanding and entire agreement between the parties. No terms, conditions, understandings or agreements purporting to modify or vary this Agreement shall be binding unless made in writing and signed by both parties. 11.4. Notices. All notices which either party may be required to give the other party shall be in writing and delivered personally, or sent registered or certified mail, postage prepaid, emsCharts Service Agreement, v12.3 Page 8 of 19

return receipt requested, or sent by facsimile or telecopier machine (provided no errors are reported in transmission) to the following: Customer: emsCharts, Inc.: Title: 125 Warrendale Bayne Rd, STE 100 Address: Warrendale, PA 15086 Tel: (412) 647-4895 Fax: (724) 933-9333 Phone: Fax: 11.5 No Third Party Beneficiaries. Nothing in this Agreement shall be construed as creating or granting rights or benefits hereunder to anyone other than Customer and Vendor. 11.6 Notification of Adverse Events. Each party shall be obligated to immediately notify the other if it is the subject of any investigatory action by any federal, state or local agency or affiliation/accreditation organization, or if it is sanctioned or disciplined by any such agency or organization. 11.7 Independent Provisions. Each provision of this Agreement shall be considered separable, and if for any reason any provision of this Agreement is determined to be invalid and/or contrary to any existing or future law, regulation, rule and/or order, such invalidity shall not impair the operations of, or affect those portions of this Agreement which are valid. 11.8 Independent Contractors. Neither party intends, and nothing contained herein shali be construed, to create a joint venture, partnership or principal and agent relationship between the parties, and accordingly, neither party shall have any right, power or authority to create any obligation, express or implied, on behalf of the other. IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first above written. Township of West Orange emsCharts, Inc. By: By: (Name) (Name) (Title) (Title) Dated: Dated: emsCharts Service Agreement, v12.3 Page 9 of 19

IE. ATTACHMENT A MAINTENANCE AND SERVICE LEVEL GUIDELINES DEFINITIONS A. “Regular or Peak Hours”: The hours of 7:00 a.m. to 11:00 p.m. (based on Eastern Standard Time or Eastem Daylight Savings Time, whichever is currently applicable) “Non-Peak Hours”: All other hours in a day that are not “Peak Hours.” “Non-Critical System Maintenance”: Maintenance that is not necessary to maintain the integrity of data or system stability. “Critical System Maintenance”: Maintenance that is necessary to maintain the integrity of data or system stability. “Critical Problem”: Any problem encountered by Customer that materially and adversely interferes with Customer’s use of emsCharts, and emsCharts Mobile “Non-Critical Problem”: Any problem encountered by Customer involving the use of emsCharts, and emsCharts Mobile that does not materially or adversely interfere with Customer’s use. MAINTENANCE AND REMEDIAL WORK A. Scheduled and Non-Scheduled Maintenance. 1, Non-Critical System Maintenance. Vendor will use best efforts to carry out Non-Critical System Maintenance during Non-Peak hours. If downtime is anticipated to be less than 15 minutes, at least 4 hours prior notice will be given as an application message on the system. If downtime is anticipated to be between 16 and 90 minutes, at least 24 hours prior notice will be given using both application messages and email notification to the service administrator as listed by Customer in the application configuration. If downtime is anticipated to be greater than 90 minutes, at least 72 hours prior notice will be made using both application messages and email notification to the service administrator as listed in the application configuration. 2. Critical System Maintenance. Critical system maintenance may be performed whenever it is deemed necessary by Vendor to maintain the integrity of data or the stability of the system. emsCharts Service Agreement, v12.3 Page 10 of 19

B. Remedial Work. 1. Critical Problem. In the event of a critical problem, Vendor will use all efforts to correct a verifiable, reproducible problem within 1 business day (i) after Customer reports such problem te Vendor; or (ii) after detection by Vendor. 2. Non-Critical Problem. In the event of a non-critical problem, Vendor will use reasonable efforts to correct a verifiable, reproducible non-critical problem within 5 business days (i) after Customer reports such problem to Vendor; or (ii) after detection by Vendor. 3. Exclusions. Vendor’s obligations to correct problems, make repairs, provide maintenance or provide other services (the “remedial work”) shall not include: {a) remedial work for anything other than to emsCharts, and emsCharts Mobile software. (b) | Any remedial work in any way required by or related to the following: (1) Customer or Customer’s representative’s designs, specifications or instructions; (2) Customer failure to fulfill any of Customer obligations or responsibilities under the Agreement; (3) Failure by Customer to comply with Vendor’s written instructions or recommendations; (4) Customer or any Customer’s designated third party using or combining any component of emsCharts, and emsCharts Mobile with any incompatible product or service that does not properly exchange data with emsCharts; (5) Alteration or improper use of emsCharts, and emsCharts Mobile by Customer or others; (6) A failure to use or install error corrections, repairs, updates or upgrades or take other reasonable actions recommended by Vendor so that products functions properly; (7) Customer’s own hardware, software, equipment or facilities (8) Design or manufacturing defects in any products or services not made and provided by Vendor; emsCharts Service Agreement, v12.3 Page 11 of 19