CONTRACT 5642 Vender Agreement Agreement No. 5642
REDDINET°MASTER AGREEMENT
This Software License and Support Agreement(this "Agreement") is made by and
between the Hospital Association of Southern California ("HASC") and The El Segundo Fire
Department(the "Customer") as of the first day of December, 2018.
RECITALS
HASC has established the ReddiNete computerized emergency communications network
(the "System"), to provide an emergency communications link with all participating customers.
HASC is a trade association with the technical and centralized resources which enable it
to effectively administer ReddiNet® system-wide support, and Customer wishes to participate in
the System, subject to the terms and conditions set forth below.
Therefore, in consideration of the foregoing premises and the covenants and promises
described below, the parties agree as set forth below.
I. Deliverables. Customer and HASC hereby agree that, in accordance with and
subject to the terms and conditions of this Agreement, HASC will provide the following items
and services that are checked in the Deliverables Ordered column (the "Deliverables"):
DELIVERABLES OIZDEIZEI'
SOFTWARE MODULES
N\A Bed Capacity .... ......,., ..,.,. ... ..
X Status
N\A Mass Casualty Incident
N/A Messages
N\A Assessment
N\A Application Programming Interface
X Alerts
X Reports
..........M_ .....
HARDWARE SUPPORT SERVICES
N/A Alerting Hardware
... ..... . ...... ........
ADDITIONAL . _
FUNCTIONALITY
N/A Family Reunification Center
Fees and Payment. HASC will invoice Customer in advance for any initial fees and
annual fees hereunder, and on a monthly basis for any other fees hereunder, in accordance with
Appendix A for the Deliverables ordered by Customer, and Customer will pay HASC in
accordance with the payment terms described below:
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1.1 In the event HASC has not received payment in full due under this
Agreement within 30 days after Customer's receipt of an invoice, in addition to its other
remedies provided herein, HASC shall add a service charge to the amount due in an amount
equal to the lesser of one percent (1%)per month or the maximum allowed by law, which service
charge shall be prorated on a daily basis.
1.2 In addition to the fees described in Appendix A, Customer shall pay
HASC upon receipt of any invoice for any taxes, duties, excises or any other similar government
charges (except those based on HASC's net income),which HASC may be required to collect or
pay upon the sale, use, licensing, or delivery of the Deliverables or any other matter related to
this Agreement.
1.3 Fee Adjustments
1.3.1 HASC may, upon at least 60 days notice prior to any anniversary
date of the activation of the System for Customer, increase any or all of its fees as of such
upcoming anniversary date without any limitation pursuant to Section 2.3.1 or otherwise,
provided that(1) HASC provides written justification to Customer for such increase at the same
time as such notice, and (2) Customer may terminate this Agreement upon notice to HASC
within 30 days of its receipt of any such notice.
1.3.2 The parties hereto may upon mutual agreement at any time adjust
the fees hereunder.
2. Term and Termination
2.1 Term. This Agreement shall be effective (the "Effective Date") as of the
later of(1)the date referenced in the initial paragraph, and (2) the actual activation of ReddiNet.
HASC and Customer understand and agree that the Commencement Notification regarding the
term of this Agreement will automatically renew for one year periods unless either party gives
the other party at least 60 days' notice prior to any renewal date.
2.2 Termination by Either Party for Cause. Either HASC or Customer may
terminate this Agreement with prior notice to the other of any material breach of this Agreement,
provided the injured party has given the other party notice of such breach and there has been a
failure to cure such breach within 30 days after receipt of such notice.
2.3 Termination by HASC. HASC may also immediately terminate this
Agreement with prior notice to Customer if any of the following occur:
2.3.1 Customer fails to comply with its obligations under Section 4 of
Ap.-ped Ah 1 ;
2.3.2 Customer fails to make payments as required in this Agreement
2.4 Governmental or Vendor Actions. In the event any governmental body
having jurisdiction over any aspect of HASC's business, or any telecommunications carrier for
HASC's Communication Services or the System, issues any opinion, rule,tariff, schedule,
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guidelines, order, or other directive of any nature which prevents HASC from providing part or
all of HASC's Communication Services or the System or otherwise affects any aspect of
HASC's business, HASC may, upon 45 days' prior notice, terminate this Agreement without any
liability.
2.5 Modification or Discontinuance. HASC may modify or discontinue
Communication Services,the System or Customer's use of the System on 60 days notice. HASC
shall not be liable to Customer for any such modification or discontinuance. In addition, if
HASC loses its right to provide any or all of its Communication Services, HASC may terminate
this Agreement in whole or in part on 30 days' notice.
2.6 Termination for Convenience. Either party may terminate this
Agreement for any reason upon 60 days' written notice to the other party.
2.7 Customer's Return of Deliverables. Upon termination of this
Agreement, Customer shall immediately return to HASC any Deliverables in Customer's
possession. Customer shall also return proprietary training and service manuals and any
promotional or advertising materials relating to the Deliverables or System to HASC. Customer
shall notify HASC of other HASC proprietary materials that Customer is not able to return to
HASC, and upon HASC's request Customer shall destroy other HASC proprietary materials that
Customer does not return to HASC and certify such destruction in writing. Thereafter, Customer
shall not be permitted to participate in the System unless Customer enters into a new written
agreement under terms agreeable to HASC.
2.8 Customer's Obligation to Pay. Termination of this Agreement shall not
relieve Customer of its obligation to pay all HASC fees and invoices accruing prior to
termination.
2.9 Suspension of Performance. If either party defaults in the performance
of its obligations under this Agreement,the other party may, in addition to its other available
remedies in this Agreement, at law, or in equity, suspend performance of its obligations until
such default is corrected.
2.10 Survival. The termination of this Agreement shall not create any rights or
remedies that the parties did not have during the term of this Agreement. Any issues arising
under this Agreement shall be addressed in accordance with this Agreement both during and
following the term of this Agreement.
3. Indemnification. Customer shall, at its expense, indemnify,protect, defend and
hold harmless HASC, its employees, officers, directors, contractors and agents from and against
any losses, liability, damages, penalties, costs, and fees, including without limitation reasonable
attorneys' fees or expenses from any claim or action, including without limitation bodily injury
or death, caused by or arising from Customer's breach of any term or condition of this
Agreement, including without limitation Sections 3.4 or 4_2 of Anendix 13, or from the
negligence or willful misconduct of Customer, its officers, employees, agents or contractors.
3.1 Subject to the limitations set forth in Section 7 of Appendix B-Software of
the ReddiNet Master Agreement, HASC indemnifies and holds Customer harmless from and
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against any claim, action, damages, costs (including, without limitation, attorney's fees), injuries,
or liability, arising out of this Agreement, or its performance, except for such loss or damage
arising from Customer's sole negligence or willful misconduct. Should Customer be named in
any suit, or should any claim be brought against it by suit or otherwise,whether the same be
groundless or not, arising out of this Agreement, or its performance, HASC will defend
Customer(at Customer's request and with counsel satisfactory to Customer) and will indemnify
Customer for any judgment rendered against it or any sums paid out in settlement or otherwise.
3.2 For purposes of this section "Customer" includes the City of El Segundo
and its elected and appointed officials, officers, employees, and volunteers. However, only the
City of El Segundo Fire Department may use/access the ReddiNet software.
3.3 It is expressly understood and agreed that the foregoing provisions will
survive termination of this Agreement.
4. INSURANCE.
4.1 Before commencing performance under this Agreement, and at all other
times this Agreement is effective, HASC will procure and maintain the following types of
insurance with coverage limits complying, at a minimum, with the limits set forth below:
Tvpe of Insurance l.Jmits
Commercial general liability: $1,000,000
Workers compensation Statutory requirement
4.2 Commercial general liability insurance will meet or exceed the
requirements of ISO-CGL Form No. CG 00 01 11 85 or 88. The amount of insurance set forth
above will be a combined single limit per occurrence for bodily injury,personal injury, and
property damage for the policy coverage. Liability policies will be endorsed to name Customer,
its officials, and employees as "additional insureds" under said insurance coverage and to state
that such insurance will be deemed "primary" such that any other insurance that may be carried
by Customer will be excess thereto. Such insurance will be on an "occurrence," not a "claims
made,"basis and will not be cancelable or subject to reduction except upon thirty(30) days prior
written notice to Customer.
4.3 HASC will furnish to Customer duly authenticated Certificates of
Insurance evidencing maintenance of the insurance required under this Agreement and such
other evidence of insurance or copies of policies as may be reasonably required by Customer
from time to time. Insurance must be placed with insurers with a current A.M. Best Company
Rating equivalent to at least a Rating of"A:VII."
4.4 Should HASC, for any reason, fail to obtain and maintain the insurance
required by this Agreement, Customer may obtain such coverage at HASC's expense and deduct
the cost of such insurance from payments due to HASC under this Agreement or terminate.
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4.5 The requirements as to the types and limits of insurance coverage to be
maintained by HASC and any approval of said insurance by Customer, are not intended to and
will not in any manner limit or qualify the liabilities and obligations otherwise assumed by
HASC pursuant to this Agreement, including, without limitation,to the provisions concerning
indemnification.
4.6
5. Miscellaneous
5.1 Modifications. No modifications or amendments to this Agreement and
no waiver of any provisions hereof shall be valid unless in writing and signed by duly authorized
representatives of the parties.
5.2 Applicable Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of California. The parties agree that Los Angeles County
in the State of California shall be the exclusive forum for any action brought under this
Agreement.
5.3 Limitations on Actions. No actions or claims of any form arising from
this Agreement or the use of the Deliverables may be brought by either party more than two
years after the facts giving rise to the cause of action have arisen.
5.4 Notices. Notice will deemed to be given by the parties under this
Agreement if in writing and personally delivered or first sent via facsimile then mailed by
first-class registered or certified mail, postage prepaid,to the addresses noted below the
signatures on this Agreement. Each party will provide notice to the other of changes to such
addresses.
5.5 Section Headings. The Section headings throughout this Agreement are
for reference purposes only, and the words contained within such headings shall in no way be
held to explain, modify, amplify or aid in the interpretation, construction or meaning of the
provisions of this Agreement.
5.6 Force Majeure. Neither party to this Agreement shall be liable or in
default for any loss, damage, or delay in its performance of this Agreement, except for delays in
payment, if such loss, damage or delay shall be due to any cause whatsoever beyond its
reasonable control, including, but not limited to, acts of God, acts or regulations or decrees of
any government, earthquake, flood, fire,power blackout, unusually severe weather, acts of the
enemy, events or war, embargo, strike, lock-out, dispute with work persons, accidental delay in
transportation, shortage of fuel or supplies, inability to obtain materials, or other causes. In the
event of such delay, the time for performance under this Agreement shall be extended for the
time necessary to complete performance if the party incurring the delay exercises due diligence
as the circumstances require.
5.7 Severability. If any term or condition of this Agreement shall to any
extent be held invalid or unenforceable by a court of competent jurisdiction, the remainder of this
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Agreement shall not be affected thereby, and each term and condition shall be valid and
enforceable to the fullest extent permitted by law.
5.8 Assignment. Either party may assign this Agreement, convey its interests
in the Deliverables, delegate its duties, or assign the right to receive payments without the other
party's consent, except Customer may not assign this Agreement, delegate its duties or transfer
its interests under this Agreement to a competitor of HASC without HASC's prior written
consent. Any attempted assignment or transfer in contravention of this Section shall be null and
void. This Agreement shall be binding on successors and assigns of the parties, if any.
5.9 Nonwaiver. Any failure or delay by either party to exercise or partially
exercise any right under this Agreement shall not be deemed a waiver of any of the rights,
powers, or privileges under this Agreement.
5.10 Full Cooperation of Customer. Customer agrees that it will provide its
full cooperation to HASC with regard to all aspects of this Agreement, and understands that,
without such cooperation, the timely completion of this Agreement will be impossible. Such
cooperation includes, but is not limited to, access to all necessary personnel, procedures, data for
testing and documents of Customer on an as-needed basis.
5.11 Books,Records and Audit. HASC shall maintain books and records
relating to all transactions occurring pursuant to this Agreement for a period of three years
following termination of this Agreement. Customer and its duly authorized representatives shall
have the right upon reasonable notice and at all reasonable hours of normal business days to
examine and to copy such records and materials in the possession or under the control of HASC
with respect to this Agreement. The cost of such audit or inspection shall be borne by Customer.
All information examined,made available and copied by Customer and its representatives shall
be deemed to be HASC's confidential information and subject to the same protections as the
HASC Materials under Section 4.2 of Avvendix B.
5.12 Delegation of Authority to HASC.
5.12.1 Customer delegates to HASC the authority to enter into such
agreements with vendors or suppliers as are necessary to (1)provide, service and maintain the
Deliverables; (2)provide training of Customer employees in the use of the Software; (3)provide
administrative support; and(4)take other such additional steps as are appropriate to accomplish
the foregoing. Customer shall not directly contact any such vendor or supplier without HASC's
prior written approval, and shall promptly provide HASC with any copies of correspondence, in
any medium, between Customer and any such vendor or supplier.
5.13 Acknowledgment of Understanding—Entire Agreement. Customer
acknowledges that it has read this Agreement, understands it and agrees to be bound by its terms
and conditions. Customer and HASC agree that this Agreement is subject to the terms and
conditions of Atmendix A (Pricing Schedule) ; m)endix B (Standard Terms and Conditions)
and Appendix C (Hardware Purchase and Support Services) which are attached hereto and
incorporated herein by this reference as they apply to Customer. Customer also agrees that this
Agreement is the complete and exclusive statement of the agreement between HASC and
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Customer and supersedes all proposals, representations or prior agreements, oral or written, and
any other communications between HASC and Customer relating to the subject matter of this
Agreement, including without limitation prior agreements relating to the System. This
Agreement may not be amended, except by an agreement in writing which is signed by
authorized representatives of HASC and Customer. HASC may provide additional Deliverables
or modify the Deliverables provided under this Agreement, at then-current prices, where the
parties mutually agree to such modification in a purchase order or other signed writing.
5.14 Equipment
5.14.1 Equipment Provided Under This Agreement. To the extent
Customer obtains any equipment under this Agreement, Customer shall be responsible, at its sole
cost and expense,to replace any such equipment as may be necessary, except to the extent
expressly provided otherwise in this Agreement.
[Signatures on next page]
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ReddiNet Software License and Support Agreement
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IN WITNESS WHEREOF the parties hereto have executed this Agreement the day and
year first hereinabove written.
CUSTOMER: HOSPIT SSOCIATION OF
CITY OF EL SEGI O, SOUT � CA IFOR
FIRE DEP T
By: t� B,,
Date:
.213' /� Dat . ►L 1 L1
Printed Name: Chris Donovan Printed Name: George W. Greene
Title: Fire Chief Title: President and Chief Executive
Officer
Notice Address:
Notice of Address:
314 Main Street
El Segundo, CA 90245 515 South Figueroa Street, Suite 1300
Los Angeles,CA 90071-3300 -
A"I
City lerlc,
APPROVED AS TO FORM:
M4rD—�.Hensley,
City Attorney
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APPENDIX A—PAYPw ENT TERMS
Anoend'ia A-I --Software Fees
Reddiai gOO Pricing Schedule-Software 2018
'
1ORGANIZATION
Status Module-ED capacity updates and availability of $647* $250
emergency resources to support patient care and transport.
Mass Casualty Incident Module-Manage MCIs.Notify
responders;assess ED capacity;dispatch,re-route and $647
arrive ambulances;locate transported and walk-in patients.
............................. ......_..... ._._............. ...................:..................... _._...............w.
Messages Module-Send and receive written
communication directly with every participant in your $647
network and within your self-selected out of network
providers.Set message templates.
Assessment Module-Poll healthcare providers for
available resources,the status of property,personnel and $647
supplies,track trends,and coordinate resources. Create pre-
set and ad hoc polls.
......... .. ...............................................
Bed Capacity Module-Record and view current and
projected bed availability for hospitals and long term care $647
facilities including HAvBED data and patient census.
Family Reunification Center—Record and view missing
persons and unaccompanied minors to facilitate family TBD TBD
reunification and victim identification. Interfaces with MCI
Module.
Application Programming Interface-Link ReddiNet $1,591 $2,122
database tables for data exchange.
............ ...........I......_................. ........... ............................
Alerts-Via remote devices,receive self-selected alerts
including messages,ED status changes,MCI notifications, Included
and disaster warnings.
.................................................. ..............!............. ..........",..—.................
._......................
Reports-Produce point in time and historical reports from Included
your subscribed module(s).
.................... .
*NOTE:Access to ReddiNet modules for specific responders is granted with the consent of local EMS agencies.
Training: Resources include a User Guide,a simulation Training County for interactive practice,specialty
webinars and Help and Support documents.Basic training for the software program is billed at$125 per hour plus
travel expenses.
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Annendix A.2—thirdware and annual Fees
ANNUAL
Visual Alert $250 plus
Hardware— tax and None
optional for
internet only users shipping
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APPENDIX B—SOFTWARE
1. SOFTWARE LICENSE
1.1 Grant of License. HASC hereby grants, and Customer accepts, a
nontransferable, nonexclusive license to use the software modules ordered in the Agreement and
the Documentation(as defined below) only in accordance with the terms and conditions in this
Apendix B and the other parts of the Agreement(the "Software").
1.2 Limitations on License. Except as allowed under Section 1.3 of this
Annendix 13, Customer may not copy, disassemble, decompile, reverse engineer, modify,
translate, display, sell, sublicense, lease, rent, assign or otherwise transfer, use or make available
or disclose the Software in any form, in whole or in part,to any third party, without the prior
written consent of HASC. Customer will take appropriate action by instruction, agreement or
otherwise with persons permitted access to the Software to satisfy its obligations under the
Agreement with respect to protection of the Software.
1.3 Copies. If applicable, no more copies of the Software ("Copies")may be
produced by Customer in machine readable form than are necessary for the purposes of this
Agreement and for back-up purposes. Customer will maintain appropriate records of the
location of the Copies. Customer will reproduce and include the copyright notice or other
proprietary notices of HASC on the Copies, in whole or in part, or on any form of the Software.
All Copies are also subject to the provisions of this Agreement.
1.4 Title. Title to and all rights and interests in the Software and its code are the
exclusive proprietary property of HASC and are protected by copyright, patent and trade secret
laws. The original and any Copies, in whole or in part, including translations, compilations,
copies with modifications, enhancements, derivative works, and updated versions are and shall
remain the exclusive property of HASC. Customer will take all steps necessary to protect
HASC's proprietary rights and confidentiality in the Software, including, but not limited to,the
proper display of copyright,trademark,trade secret and other proprietary notices on any copies
of the Software. Except for the license granted under the Agreement, nothing in the Agreement
shall be construed as transferring to Customer any right, title, or interest in the Software or any
portions thereof, or as conferring any license or other right, by implication, estoppel or otherwise
under any trade secrets, trademark,proprietary right, copyright, patent or otherwise. Customer
shall not alter or remove from the Software or other proprietary HASC materials or data any
notices or identification which indicate ownership of HASC.
1.5 Documentation. HASC will provide to Customer User Guides.
2. SOFTWARE SUPPORT SERVICES
2.1 HASC agrees to provide the software support services described in this Section 2
("Software Support Services").
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2.2 The specifications for the Software shall be the documentation for the Software
provided by HASC to Customer(the "Software Specifications"). HASC will use commercially
reasonable efforts to correct all failures of the Software to operate substantially in accordance
with their Software Specifications ("Software Error(s)").
2.3 HASC will provide enhancements and modifications to the Software that are
made generally available at no additional charge to HASC's other ReddiNet®customers
receiving Software Support Services similar to the Software Support Services provided
hereunder. Customer must purchase any additional equipment and third-party software which
HASC deems required, in its reasonable technical and business judgment, to continue the basic
functionality of the Software. If Customer does not purchase such additional equipment and
third-party software, HASC shall be entitled to terminate the Agreement in accordance with
Section 3.2 of the Agreement. New releases and new versions of the Software (including, but
not limited to, significant new software functionality which are not made generally available to
HASC's other customers at no additional charge) are not provided hereunder, but will be made
available at HASC's then current fees for such items. Enhancements and modifications to, and
new releases and new versions of, the Software, shall be included in the definition of"Software"
for purposes of the Agreement.
2.4 HASC will provide commercially reasonable telephone assistance to Customer's
employees in identifying, verifying, isolating and resolving Software Errors. Such telephone
assistance will be provided as a supplement to, rather than a substitute for, adequate training for
Customer and its users.
2.5 HASC will not be required to correct or perform maintenance or Software
Support Services for the following:
(a) Software Errors caused by any modifications of the Software or related
hardware by any party other than HASC;
(b) problems related to hardware or software not provided by HASC;
(c) Customer's failure to use enhancements, programming Software Error
corrections, or the most current release of the Software provided by HASC;
(d) Customer's failure to use the Software in accordance with the terms of the
Agreement;
(e) problems related to Customer's combination, operation, or use of the
Software with non-HASC software or equipment unless such software or equipment was
authorized by HASC; or
(f) problems occurring in an operating environment outside of the
environment recommended by HASC as follows: Adobe Flash Player version 9.0 or greater and
512 megabytes of RAM or greater.
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2.6 HASC shall provide the Software Support Services in the following manner:
(a) Nonemergency Software Support Services between the hours of 9:00 a.m.
and 5:00 p.m. (Pacific Time), Monday through Friday, except during the following HASC
holidays: New Year's Day, Martin Luther King,Jr. Day, President's Day, Memorial Day,
Independence Day, Labor Day, Thanksgiving Day,the day after Thanksgiving Day, and
December 25 through December 31.
(b) Emergency Software Support Services via telephone, 24-hours-a-day, 7-
days-a-week. For purposes of the Agreement, "Emergency Software Support Services"will
mean Software Support Services required to maintain Software availability. Emergency
Software Support Services do not include operator instruction, user training, or other problems
which could be handled by Customer through adequate training. Customer may contact HASC
by telephone for the Emergency Software Support Services at any time and HASC will make
commercially reasonable efforts to respond within two hours after receiving a telephone request
from Customer.
(c) HASC shall be under no obligation to provide the Software Support
Services if the following occur:
(i) Customer fails to perform its obligations in Section 2.8;
(ii) any failure in performance or loss or damage under the Agreement
due to any cause beyond either party's reasonable control;
(iii) failure by Customer to maintain site specifications recommended
in writing by HASC;
(iv) failure by Customer to apply updates to the Software as requested
by HASC;
(v) Customer makes any addition of hardware or software for which
Customer has not received prior written approval from HASC; or
(vi) there is a failure of the Software or any part thereof which is
attributable to: (A) inappropriate or unauthorized use; (B) accident, neglect, misuse or abuse; or
(C) exposure of the Software to potentially harmful environmental, electrical, or operating
conditions.
2.7 HASC may, as it deems required in its reasonable technical and business
judgment, modify or enhance the Software.
2.8 HASC and Customer agree to the following:
(a) Customer shall designate one person and one alternate to serve as HASC's
support contact(the "ReddiNet(g Coordinator") and Customer's management representative, to
perform certain obligations of Customer under the Agreement, and to facilitate HASC's
performance of the Software Support Services. Only the ReddiNet® Coordinator will be
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authorized to request and receive Software Support Services provided hereunder on behalf of
Customer. Customer may change its ReddiNet® Coordinator at any time by notice to HASC;
(b) Customer understands and acknowledges the need for centralized
administration, maintenance, and support of the Software and agrees to utilize only the Software
Support Services of HASC and its subcontractors in connection with the Software Support
Services, unless otherwise approved in advance and in writing by HASC;
(c) Customer shall provide HASC with notice of changes to the Software or
any other vital Software component made by any employee, contractor or agent of Customer.
Such changes,without the prior express written consent of HASC,will relieve HASC of any and
all obligations to provide the Software Support Services; and
(d) Customer shall operate and maintain the most current release of the
Software which HASC has made available to Customer.
2.9 If HASC provides Software Support Services as a result of any of the causes
listed in Sections 2.5 or 2.6(c) of this Atveiidix B, such Software Support Services will be
provided at HASC's then-current time and materials rates, including reimbursement for travel
expenses. Such rates as of the Effective Date, which are subject to change, are set forth in
Att)taendix A.
2.10 Reinstatement Fee. If Customer desires to renew the Software Support Services
of HASC after a period of noncoverage under the Agreement, Customer will pay HASC a
reinstatement fee designated by HASC to update the Software to the then-current version.
Customer will be responsible for any additional hardware or third-party software which HASC
deems required to utilize the then-current version of the Software.
3. DATA AND DATA TRANSMISSION
3.1 Data Transmission. HASC will make commercially reasonable efforts to
provide access to and use of the System.
3.2 Data Sharing and Ownership. Customer and HASC may share data for the
purposes of this Agreement. Data that Customer produces and sends to HASC or another party
pursuant to this Agreement shall remain the exclusive property of Customer("Customer Data").
Data produced or modified by HASC, including the format and arrangement of such data, shall
remain the exclusive property of HASC. Each party understands and agrees that data transmitted
over the System (including Customer Data)may be shared with government and other entities
and customers, and it may be subject to disclosure under public records laws.
3.3 Data License. Customer grants to HASC a nonexclusive, royalty-free, perpetual,
worldwide license to use, reproduce, modify, sublicense and distribute Customer Data to
HASC's other customers and government entities subject to the applicable government laws,
regulations governing Customer Data.
3.4 Data Warranty. Customer shall be responsible for its Customer Data entry
activities, and for the accuracy of any Customer Data delivered to HASC or another party
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pursuant to the Agreement. Customer represents and warrants that Customer Data is true and
accurate data and information, to the best of Customer's knowledge. Customer shall promptly
correct any errors in such Customer Data. HASC shall not be responsible for errors in Customer
Data or data entry done by Customer, or for errors in the Deliverables that result from errors in
Customer Data, data entry done by Customer or Customer's failure to comply with the
Agreement. Customer is responsible for complying with applicable federal, state, or local laws
and/or regulations that apply to the delivery of Customer Data to HASC and that apply to the use
and/or disclosure of such Customer Data as set forth under the Agreement.
3.5 System Disclaimer. Customer understands and agrees that temporary
interruptions to the System may occur which will prevent access to and use of the data, including
during power outages, internet downtime, installation and/or maintenance of the System, and
other events described in Sectiot7 5.6 of the Avveernent (Force Majeure). HASC shall not be
liable to Customer or any other person or entity for any interruption in the System not caused by
HASC's willful misconduct.
3.6 Exclusive Remedy. In the event that data to be transmitted through the use of the
Software or by or through the System is interrupted, inaccurately transmitted, or not transmitted
directly as a result of HASC's failure to perform its obligations under the Agreement
(collectively, "Transmittal Error(s)"), Customer's sole and exclusive remedy shall be that HASC
will: (1)use commercially reasonable efforts to retransmit the data; or(2) if HASC is unable to
retransmit the data, in HASC's judgment, HASC will give Customer a pro rata refund of the fees
paid by Customer to HASC under this Agreement for the remainder of the term and the
Agreement will terminate; or(3) if the Transmittal Error(s) results in substantial damage to
Customer and HASC does not terminate the Agreement,then HASC's only obligation and sole
liability to Customer shall be limited to granting Customer credits equal to Customer's
reasonable out-of-pocket expenses, as reasonably mitigated by Customer, which Customer can
demonstrate are directly attributable to the Transmittal Error(s) by HASC or HASC's vendors,
but in no event shall such credits during any one calendar year in the aggregate exceed the lesser
of. (i)three times the average monthly revenue received by HASC from Customer for the
Deliverables which contained the Transmittal Error(s) over the preceding 12 months (or such
lesser time if this Agreement has been in effect for less than 12 months); or(ii) Five Thousand
Dollars ($5,000).
3.7 Claim Assertion. Any claim by Customer under this Section must be asserted by
Customer in writing within 30 calendar days after Transmittal Error(s), except that, if such
Transmittal Error(s) is not reasonably detectable within such 30-day period by Customer in the
exercise of due diligence, then such claim must be asserted no later than ten calendar days after
the actual discovery by Customer of such Transmittal Error(s) and within 180 calendar days after
the Transmittal Error(s). Customer agrees to supply the requested documentation necessary to
support any claim asserted under this Section.
4. OTHER OBLIGATIONS
4.1 Testing. When HASC delivers the Software to Customer, Customer will test the
Software to ensure that it operates substantially in accordance with the Software Specifications.
HASC will repair or replace any Software that does not operate substantially in accordance with
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such Software Specifications during these tests. Upon completion of these tests, HASC will turn
over operation of the Software to Customer.
4.2 Confidentiality and Protection
(a) Customer will maintain the confidentiality of, and protect from theft and
unauthorized copying,the Deliverables, any copy made of the Software, and any documentation
or information regarding the Deliverables ("HASC Materials")provided to Customer. Customer
shall limit access to the HASC Materials to Customer's employees, independent contractors,
directors and agents with authorization for and subject to written confidentiality obligations for
their use. Customer shall also maintain the confidentiality of any information or data retrieved
by Customer over the System regarding any other ReddiNet® customers ("ReddiNet Customer
Information"). Customer shall not disclose, publish or release any ReddiNet Customer
Information to any third party, and will keep all ReddiNet Customer Information in strict
confidence, unless otherwise authorized in writing by the specific ReddiNet®customer to which
such ReddiNet Customer Information relates or except for ReddiNet Customer Information
provided to HASC by Customer. HASC will maintain the confidentiality of, and protect from
theft and unauthorized copying, any proprietary documentation or information of Customer
("Customer Materials")provided to HASC. HASC shall limit access to the Customer Materials
to HASC's employees, independent contractors, directors and agents with authorization for their
use. Except as is necessary for the performance of its obligations under this Agreement, HASC
shall not disclose, publish or release any Customer Materials to any third party, and will keep all
Customer Materials in strict confidence, unless otherwise authorized in writing.
(b) Customer shall promptly provide notice to HASC after obtaining
knowledge of the existence of any circumstances surrounding any actual or suspected
unauthorized knowledge, possession or use of HASC Materials or ReddiNet Customer
Information and shall cooperate with HASC in taking action against unauthorized users, and
HASC shall promptly provide notice to Customer after obtaining knowledge of the existence of
any circumstances surrounding any actual or suspected unauthorized knowledge, possession or
use of Customer Materials and shall cooperate with Customer in taking action against
unauthorized users.
(c) Because of the unique nature of the HASC Materials, ReddiNet Customer
Information and Customer Materials, each party understands and agrees that, in the event that
either party fails to comply with any of the terms of this Section 4.2, the other party(the
"Nonbreaching Party")will suffer irreparable and extreme harm and monetary damages may be
inadequate to compensate the Nonbreaching Party for such breach. Accordingly each party
agrees that the Nonbreaching Party will, in addition to any other remedies available to it at law or
in equity, be entitled to injunctive relief to enforce the terms of this Section 4.2.
4.3 Protected Health Information. The parties shall comply with the provisions of
Appendix B-1 in connection with any Protected Health Information (as there defined)that HASC
creates, receives, maintains, or transmits on behalf of Customer under circumstances that cause
HASC to qualify as Customer's business associate for purposes of the Health Insurance
Portability and Accountability Act of 1996 (HIPAA) and the Standards for Privacy of Protected
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Health Information and the Security Standards for the Protection of Electronic Protected Health
Information, 45 CFR Parts 160 and 164.
5. LIMITED WARRANTY
HASC warrants that the Software shall perform substantially in accordance with the
Software Specifications for 90 days from delivery of the initial Software to Customer. HASC's
entire liability and Customer's exclusive remedy for breach of this warranty shall be for HASC,
at its option, either to: (a) return the fees paid for the Software; (b)replace Software that does
not meet the limited warranty described herein and which is returned to HASC or(c) make
commercially reasonable efforts to correct any Software Errors which Customer may find in the
Software during the above-described warranty period and which prevent the Software from
performing substantially in accordance with the Software Specifications.
6. WARRANTY DISCLAIMERS
HASC GRANTS TO CUSTOMER NO WARRANTIES UNDER THIS AGREEMENT,
EITHER EXPRESS OR IMPLIED, OTHER THAN WARRANTIES EXPRESSLY GRANTED
TO CUSTOMER IN THIS SECTION 6 OF APPENDIX B. HASC EXPRESSLY DISCLAIMS
THE WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
AND NONINFRINGEMENT FOR THE DELIVERABLES. HASC DOES NOT WARRANT:
THAT THE FUNCTIONS CONTAINED IN THE DELIVERABLES WILL MEET
CUSTOMER'S REQUIREMENTS; THAT THE OPERATION OF THE DELIVERABLES
WILL BE UNINTERRUPTED OR ERROR-FREE; OR THAT ALL ERRORS OR DEFECTS
IN THE DELIVERABLES WILL BE CORRECTED. HASC DOES NOT WARRANT THE
ACCURACY OR TIMELINESS OF THE DATA TRANSMITTED VIA THE INTERNET.
7. LIMITATION OF LIABILITIES
7.1 NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE
AGREEMENT, IT IS EXPRESSLY AGREED THAT HASC AND ITS SUPPLIERS SHALL
IN NO EVENT BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL OR
CONSEQUENTIAL DAMAGES RELATING TO OR ARISING OUT OF THE AGREEMENT,
EVEN IF HASC IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SUCH
EXCLUDED DAMAGES INCLUDE, BUT ARE NOT LIMITED TO, LOSS OF GOODWILL,
LOSS OF USE, LOSS OF PROFITS, TORTIOUS CONDUCT(INCLUDING BUT NOT
LIMITED TO NEGLIGENCE OR STRICT LIABILITY) OR INTERRUPTION OF
BUSINESS. HASC AND ITS SUPPLIERS SHALL NOT BE LIABLE FOR ANY DAMAGES
CAUSED BY DELAY IN DELIVERY, INSTALLATION OR OPERATION OF THE
DELIVERABLES UNDER THE AGREEMENT.
7.2 HASC'S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH
ITS PERFORMANCE UNDER THE AGREEMENT, INCLUDING WITHOUT LIMITATION
FAILURE OR NEGLIGENCE OF ITS EMPLOYEES, CONTRACTORS AND AGENTS,
DEFECTIVE DELIVERABLES, FAILURE OF THE ESSENTIAL PURPOSE OF THE
LIMITED WARRANTY AND REMEDIES PROVIDED HEREUNDER, AND ANY OTHER
CAUSE (INCLUDING BUT NOT LIMITED TO TORTIOUS CONDUCT, STRICT
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LIABILITY, AND BREACH OF CONTRACT)AND CUSTOMER'S SOLE REMEDY,
SUBJECT TO THE OTHER REMEDIES PROVIDED UNDER THIS AGREEMENT, SHALL
BE LIMITED TO DIRECT DAMAGES IN AN AMOUNT NOT IN EXCESS OF THE FEES
PAID FOR THE DELIVERABLES WHICH CAUSE SUCH LIABILITY. CUSTOMER
AGREES THAT SUCH LIMITATION OF LIABILITY, WITHOUT LIMITING THE
GENERALITY OF THE FOREGOING, EXTENDS TO LOSS OF DATA, LOSS OF ACTUAL
OR ANTICIPATED REVENUE, LOSS DUE TO FAILURE OF ANY SOFTWARE,
HARDWARE OR COMMUNICATIONS SERVICES COMPONENT, AND/OR DAMAGE TO
BUSINESS REPUTATION.
8. DEFENSE OF CLAIMS
HASC will defend Customer against any third party action against Customer that is based
on a third party claim that the Software infringes a United States registered patent or copyright as
of the Effective Date and shall pay any costs or damages that may be finally awarded against
Customer resulting from such action, subject to Customer promptly notifying HASC in writing
of any such action. HASC will not defend Customer, however, if the claim of infringement is
caused by: (1) Customer's misuse or modification of the Software or System; (2) Customer's
failure to use corrections or enhancements made available by HASC; (3) Customer's use of the
System or Software in combination with any product or information not developed or authorized
by HASC; (4) Customer's distribution, marketing or use for the benefit of third parties of the
System or Software not in accordance with this Agreement; or(5) information, direction,
specification or materials provided by Customer or any third party. If the Software is, or in
HASC's opinion is likely to be, held to be infringing, HASC shall at its expense and option
either(a)procure the right for Customer to continue using it, (b) replace it with a noninfringing
equivalent, (c)modify it to be noninfringing or(d) direct the return of the Software and have the
right to terminate the Agreement. The foregoing remedies constitute Customer's sole and
exclusive remedies and HASC's entire liability with respect to intellectual property claims and
actions.
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APPENDIX B-1 -HIPAA Requirements
To the extent that Customer is a covered entity or business associate under the Health
Insurance Portability and Accountability Act of 1996, as amended, and its implementing
regulations (collectively, "HIPAA"), HASC provides services to the Customer that may involve
Protected Health Information (PHI), as the term is defined at 45 CFR § 160.103, and therefore
HASC may qualify as the Customer's business associate under HIPAA.
For the purpose of both parties complying with HIPAA, HASC and Customer agree that:
1. Permitted Uses and Disclosures of Protected Health Information (PHI).
HASC may use and disclose PHI for the purposes contemplated by the Agreement, as the same
is amended or supplemented from time to time, and to the extent that such use or disclosure
would not violate HIPAA if done by Customer. HASC also may use and disclose PHI for the
proper management and administration of its business and to carry out its own legal
responsibilities, as long as, in the case of any such disclosure, either:
(a) The disclosure is required by law; or
(b) HASC obtains reasonable assurances from the person to whom the
information is disclosed that it will be held confidentially and used or further disclosed only as
required by law or for the purposes for which it was disclosed to such person, and that the person
will notify HASC of any instances of which it is aware in which the confidentiality of the
information has been breached.
2. HASC's Obligations. HASC shall:
2.1. Not use or further disclose Protected Health Information except as
permitted or required by this appendix, or required by law.
2.2. Use appropriate safeguards to prevent use or disclosure of PHI otherwise
than as permitted by this Appendix, including administrative,physical and technical safeguards
for e-PHI that reasonably and appropriately protect the confidentiality, integrity and availability
of Customer's electronic Protected Health Information.
2.3. Comply with the applicable requirements of the Security Standards for
Protection of Electronic Protected Health Information at 45 CFR Part 164 Subpart C.
2.4. Report to Customer as soon as possible any use or disclosure of PHI not
provided for by this Appendix of which HASC becomes aware.
2.5. Report to Customer as soon as possible any security incident involving
PHI, except that this section shall hereby serve as notice, and no further reporting shall be
required, of the regular occurrence of unsuccessful attempted security incidents.
2.6. Report to Customer a breach of unsecured PHI as required by 45 CFR §
164.410.
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2.7. Ensure that its agents, including any subcontractor,to whom it provides
PHI agree to the restrictions and conditions that apply to HASC with respect to such information
and implement the safeguards required above with respect to electronic Protected Health
Information.
2.8. Upon Customer's request, make available PHI in accordance with 45 CFR
§ 164.524 to the extent that HASC maintains PHI in a designated record set.
2.9. Upon Customer's request, make available PHI for amendment and
incorporate any amendments to PHI in accordance with 45 CFR § 164.526 to the extent that
HASC maintains PHI in a designated record set.
2.10. Upon Customer's request, make available the information necessary for
the Customer to provide an accounting of disclosures in accordance with 45 CFR § 164.528.
2.11. Make its internal practices, books, and records relating to the use and
disclosure of Protected Health Information available to the Secretary of the United States
Department of Health and Human Services, for purposes of determining the Customer's and
HASC's compliance with their legal obligations.
2.12. Upon termination of the Agreement, return or destroy all PHI to the extent
feasible, and,to the extent infeasible, extend the protections of this appendix to such information
that cannot be returned or destroyed, and limit further use and disclosure of such information to
those purposes that make the return or destruction of the information infeasible.
3. Customer's Obligations.
3.1. Customer warrants that its notice of privacy practices under 45 CFR§
164.520 authorizes HASC's uses and disclosures of PHI as contemplated by the Agreement.
Customer shall notify HASC of any limitation(s) in the notice of privacy practices of Customer
under 45 CFR § 164.520, to the extent that such limitation may affect HASC's use or disclosure
of PHI.
3.2. Customer shall notify HASC of any changes in, or revocation of,the
permission by an individual to use or disclose his or her PHI,to the extent that such changes may
affect HASC's use or disclosure of PHI.
3.3. Customer shall notify HASC of any restriction on the use or disclosure of
PHI that Customer has agreed to or is required to abide by under 45 CFR§ 164.522,to the extent
that such restriction may affect HASC's use or disclosure of PHI.
3.4. Customer shall not request or cause HASC to use or disclose PHI in any
manner that would not be permissible under the Standards for Privacy of Individually
Identifiable Health Information, 45 CFR Part 164 Subpart E.
4. No Third Party Beneficiaries. There are no third party beneficiaries of this
Appendix.
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5. Breach. Customer may immediately terminate the Agreement if it determines
that HASC has violated a material term of this Appendix, and HASC fails to remedy the
violation within thirty(30) days of receipt of written notice thereof.
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APPENDIX C -HARDWARE PURCHASE AND SUPPORT SERVICES
1. HARDWARE
1.1 Purchase of Hardware
HASC agrees to sell, and Customer agrees to purchase the hardware identified in
Anoendix A-2 or substantially similar hardware with the same functionality which is chosen by
HASC in its reasonable judgment as a substitute therefor(the "Hardware"), subject to the terms
and conditions of this Apnendix C and the Agreement.
1.2 Title to the Hardware
Title to the Hardware shall vest in Customer on receipt of the one time payment for the
Hardware described in ,A,nr)endi A-2 by HASC. Until payment in full is received by HASC, all
Hardware in Customer's possession shall:
(a) be kept free from liens and encumbrances;
(b) not be used in any manner likely to be injurious to it;
(c) not be removed from the installation site without HASC's prior written
consent;
(d) not be altered without HASC's prior written consent; and
(e) be subject to inspection by HASC at reasonable times upon 24-hours'
notice,provided, however, that HASC shall comply with Customer's reasonable safety, security,
and administrative procedures for such installation and support at Customer's site.
1.3 Configuration,Installation,Acceptance of Purchased Hardware
(a) Prior to installation, HASC shall configure all Hardware purchased by
Customer from HASC.
(b) Following installation of the Hardware, Customer will have up to 14
calendar days to test the Hardware to confirm that it operates substantially in accordance with the
Hardware Specifications. If Customer gives written notice to HASC that the Hardware does not
operate substantially in accordance with the Hardware Specifications, HASC will make
commercially reasonable efforts to repair or replace, at HASC's discretion, any Hardware that
does not operate substantially in accordance with such Hardware Specifications during these
tests. Upon completion of these tests, and if applicable, any repair or replacement of the
Hardware by HASC, HASC will turn over operation of the Hardware to Customer and the
Hardware shall be deemed accepted by Customer.
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2. HARDWARE SUPPORT SERVICES
2.1 HASC agrees to provide the Hardware Support Services ordered by Customer in
Section i of the Agreement as described in this Section 2 of App! cI dix C ("Hardware Support
Services").
2.2 HASC will provide Hardware Support Services for the Hardware identified in
Appendix A-2. The specifications for the Hardware shall be the documentation for the Hardware
provided by HASC to Customer(the "Hardware Specifications"). HASC will use commercially
reasonable efforts to correct all failures of the Hardware to operate substantially in accordance
with the Hardware Specifications ("Hardware Errors").
2.3 Customer must obtain and maintain the minimum Hardware configuration which
is described in Section II of Attachment 1 to this Appendix in order to operate the ReddiNet
Software. HASC may change this minimum Hardware configuration from time-to-time.
Customer must purchase and maintain in accordance with the manufacturers' specifications any
additional hardware and third-party software which HASC deems required, in its reasonable
technical and business judgment,to continue the basic functionality of the Hardware. If
Customer does not purchase and maintain in accordance with the manufacturers' specifications
such additional hardware and third-party software, HASC shall be entitled to terminate this
Agreement in accordance with Section 3.2 of the Mxcenletlt.
2.4 HASC will provide commercially reasonable telephone assistance to Customer's
employees in identifying, verifying, isolating and resolving Hardware Errors. Such telephone
assistance will be provided as a supplement to, rather than a substitute for, adequate training for
Customer and its users.
2.5 HASC will not be required to correct Hardware Errors or perform maintenance or
Hardware Support Services for the following:
(a) Hardware Errors caused by any modifications of the Hardware by any
party other than HASC;
(b) problems related to hardware or software not provided by HASC;
(c) Customer's failure to use Hardware Error corrections provided by HASC;
(d) Customer's failure to use the Hardware in accordance with the terms of
the Agreement;
(e) problems related to Customer's combination, operation, or use of the
Hardware with non-HASC software or hardware unless such software or hardware was installed
and integrated by HASC; and
(f) problems occurring in an operating environment outside of the
environment recommended by HASC.
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2.6 HASC shall provide the Hardware Support Services in the following manner:
(a) Nonemergency Hardware Support Services between the hours of 9:00 a.m.
and 5:00 p.m. (Pacific Time), Monday through Friday, except during the following HASC
holidays: New Year's Day, Martin Luther King, Jr. Day, President's Day, Memorial Day,
Independence Day, Labor Day, Thanksgiving Day,the day after Thanksgiving Day, and
December 25 through December 31.
(b) Emergency Hardware Support Services via telephone, 24-hours-a-day, 7-
days-a-week. For purposes of the Agreement, "Emergency Hardware Support Services"will
mean Hardware Support Services required to maintain Hardware availability. Emergency
Hardware Support Services do not include operator instruction, user training, or other problems
which could be handled by Customer through adequate training or other services. Customer may
contact HASC by telephone for the Emergency Hardware Support Services at any time and
HASC will make commercially reasonable efforts to respond within two hours after receiving a
telephone request from Customer.
(c) HASC shall be under no obligation to provide the Hardware Support
Services if the following occur:
(i) Customer fails to perform its obligations in Stiction 2.8;
(ii) any failure in performance or loss or damage under the Agreement
due to any cause beyond either party's reasonable control;
(iii) failure by Customer to maintain the Hardware Specifications or
other site specifications recommended in writing by HASC or the manufacturer of the Hardware;
(iv) Customer makes any addition of hardware or software for which
Customer has not received prior written approval from HASC; or
(v) there is a failure of the Hardware or any part thereof which is
attributable to: (A) inappropriate or unauthorized use; (B) accident, neglect, misuse or abuse; or
(C)exposure of the Hardware to potentially harmful environmental, electrical, or operating
conditions.
2.7 HASC may, as it deems required in its reasonable technical and business
judgment, modify, enhance or replace the Hardware.
2.8 HASC and Customer agree to the following:
(a) Customer shall designate one person and one alternate to serve as HASC's
support contact(the "ReddiNet(K Coordinator") and Customer's management representative,to
perform certain obligations of Customer under the Agreement, and to facilitate HASC's
performance of the Hardware Support Services. Only the ReddiNet®Coordinator will be
authorized to request and receive Hardware Support Services provided hereunder on behalf of
Customer. Customer may change its ReddiNet® Coordinator at any time by notice to HASC;
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(b) Customer understands and acknowledges the need for centralized
administration, maintenance, and support of the Hardware and agrees to utilize only the
Hardware Support Services of HASC and its subcontractors in connection with the Hardware
Support Services, unless otherwise approved in advance and in writing by HASC; and
(c) Customer shall provide HASC with notice of changes to the Hardware or
any other vital system component made by any employee, contractor or agent of Customer.
Such changes, without the prior express written consent of HASC,will relieve HASC of any and
all obligations to provide the Hardware Support Services.
2.9 If HASC provides Hardware Support Services as a result of any of the causes
listed in 'Sections 2. , or 2.6(c), such Hardware Support Services will be provided at HASC's
then-current time and materials rates. Such rates as of the Effective Date, which are subject to
change, are set forth in Aivendix A.
2.10 Reinstatement Fee
If Customer desires to renew the Hardware Support Services of HASC after a period of
noncoverage under the Agreement, Customer will pay HASC a reinstatement fee designated by
HASC to update the Hardware to the then-current version. Customer will be responsible for any
additional hardware or third-party software which HASC deems required to utilize the then-
current version of the Hardware.
3. HASC'S WARRANTY DISCLAIMERS
HASC GRANTS TO CUSTOMER NO WARRANTIES, EITHER EXPRESS OR
IMPLIED FOR THE HARDWARE OR HARDWARE SUPPORT SERVICES. HASC
EXPRESSLY DISCLAIMS THE WARRANTY OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, AND NONINFRINGEMENT FOR THE HARDWARE AND
HARDWARE SUPPORT SERVICES. HASC DOES NOT WARRANT: THAT THE
FUNCTIONS CONTAINED IN THE HARDWARE WILL MEET CUSTOMER'S
REQUIREMENTS; THAT THE OPERATION OF THE HARDWARE WILL BE
UNINTERRUPTED OR ERROR-FREE; OR THAT ALL ERRORS OR DEFECTS IN THE
HARDWARE OR HARDWARE SUPPORT SERVICES WILL BE CORRECTED.
4. LIMITATION OF LIABILITIES
4.1 NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS
AGREEMENT, IT IS EXPRESSLY AGREED THAT HASC OR ITS SUPPLIERS SHALL IN
NO EVENT BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL
DAMAGES RELATING TO OR ARISING OUT OF THE AGREEMENT, EVEN IF HASC IS
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SUCH EXCLUDED DAMAGES
INCLUDE, BUT ARE NOT LIMITED TO, LOSS OF GOODWILL, LOSS OF USE, LOSS OF
PROFITS, TORTIOUS CONDUCT(INCLUDING BUT NOT LIMITED TO NEGLIGENCE
OR STRICT LIABILITY) OR INTERRUPTION OF BUSINESS. HASC AND ITS
SUPPLIERS SHALL NOT BE LIABLE FOR ANY DAMAGES CAUSED BY DELAYS OR
ERRORS IN OPERATION OF THE HARDWARE UNDER THE AGREEMENT.
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4.2 HASC'S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH
ITS PERFORMANCE UNDER THIS APPENDIX C. INCLUDING WITHOUT LIMITATION
FAILURE OR NEGLIGENCE OF ITS EMPLOYEES, CONTRACTORS AND AGENTS,
DEFECTIVE HARDWARE OR HARDWARE SUPPORT SERVICES, FAILURE OF THE
ESSENTIAL PURPOSE OF THE LIMITED WARRANTY AND REMEDIES PROVIDED
UNDER THE AGREEMENT,AND ANY OTHER CAUSE (INCLUDING BUT NOT
LIMITED TO TORTIOUS CONDUCT, STRICT LIABILITY, AND BREACH OF
CONTRACT)AND CUSTOMER'S SOLE REMEDY, SHALL BE LIMITED TO DIRECT
DAMAGES IN AN AMOUNT NOT IN EXCESS OF THE TOTAL FEES FOR THE
HARDWARE SUPPORT SERVICES PAID BY CUSTOMER FOR THE CALENDAR YEAR
DURING WHICH ANY SUCH CLAIM FOR DAMAGES MAY HAVE ARISEN.
CUSTOMER AGREES THAT SUCH LIMITATION OF LIABILITY, WITHOUT LIMITING
THE GENERALITY OF THE FOREGOING, EXTENDS TO LOSS OF DATA, LOSS OF
ACTUAL OR ANTICIPATED REVENUE, LOSS DUE TO FAILURE OF ANY HARDWARE
COMPONENT, AND/OR DAMAGE TO BUSINESS REPUTATION/
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