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Software as a Service (SaaS) License Agreement
This Software as a Service Agreement (“SaaS
Agreement” or “Agreement”), effective on 1/13/20 (“Effective
Date”), is made by and between TouchPhrase Development,
LLC d/b/a Julota, which has a place of business at 102 S.
Tejon St., Ste. 1100, Colorado Springs, CO 80903 (“Julota”),
and the City of Auburn, WA , which has a place of business at
25 West Main Street, Auburn, WA 98001 (“Customer”), in
exchange for the mutual promises contained herein, the
receipt and legal sufficiency of which are acknowledged.
Julota and Customer shall be collectively referred by as the
“Parties”.
Julota provides a platform for organizations: a) to
provide services directly to individuals seeking assistance
through it; b) to coordinate with other individuals or
organizations to provide services to individuals seeking
assistance that it does not provide directly; c) to cooperate with
other organizations to identify services needed for individuals
seeking assistance; or d) to assemble, monitor and direct Care
Team(s) (defined below).
1. DEFINITIONS.
1.1 Care Team means an individual or an organization
used or assembled by or through Customer or on behalf of
Customer or in conjunction with Customer to assist Customer,
directly or indirectly, in providing to a Help Seeker (defined
below) the assistance he or she seeks or requires.
1.2 Customer Data means any data collected through the
provision of these services, excluding publicly available data
and data previously obtained by Julota. Customer Data may
include Personal Data.
1.3 Customer Website means the website owned and
operated by Customer as identified in the applicable Order
Schedule.
1.4 Documentation means any user guide, help
information and other documentation and information
regarding the Hosted Service that is delivered by Julota to
Customer in electronic or other form, if any, including any
updates provided by Julota from time to time.
1.5 Health Privacy Laws means (i) the Health Insurance
Portability and Accountability Act of 1996, as amended and
including any implementing regulations (“HIPAA”); (ii)
HITECH; (iii) 42 C.F.R. Part 2; and (iv) any other applicable
federal or state statute, regulation, administrative or judicial
ruling requiring a party to protect the confidentiality, privacy
and/or security of Personal Data and other healthcare-related
information pertaining to Help Seekers.
1.6 Help Seeker(s) means the individual seeking
assistance from or through the Customer for health or non-
health related assistance.
1.7 Hosted Service means the real-time website service
hosted by Julota and provided to Customer from time to time.
The Hosted Service includes any change, improvement,
extension or other new version thereof that is developed or
otherwise made available to Customer.
1.8 Julota API means the Julota application programming
interface, scripts, widgets, embeddable snippets and other
tools that allow Customer to integrate the Customer’s website
or any other system of Customer with all or part of the Hosted
Services.
1.9 Personal Data means any personal information that
Julota collects, receives, or obtains, from Customer that does
or can identify a specific individual or by or from which that
specific individual may be identified, contacted or located,
such as the individual’s name, address, social security
number, or any information that applicable law proscribes as
personally identifiable information. Personal Data may include
Protected Health Information (defined below).
1.10 Platform means all ideas, concepts, inventions,
systems, platforms, software, interfaces, tools, utilities,
templates, forms, content, graphics, techniques, methods,
processes, algorithms, code, know-how, trade secrets and
other technologies, implementations and information that are
used by Julota in providing the Julota services, including any
innovations, revisions, enhancements, upgrades or
improvements of the foregoing.
1.11 Protected Health Information or PHI shall have the
same meaning as the term “protected health information” as
defined in HIPAA.
1.12 Services means, collectively, the Hosted Service,
Platform, Julota API (if available or applicable), and
Documentation, as described in the applicable SOW (defined
below).
2. SERVICES. Subject to the terms and conditions of
this Agreement, Julota will provide Customer with access to
the Services as described in each Statement of Work “SOW”.
The first SOW will be Exhibit A-1 and each subsequent SOW
will be designated “Exhibit A-___”, completing the blank for
each subsequent SOW with the appropriate number, in
ascending numerical order. A sample form SOW is attached
as Exhibit A. Each SOW will be subject to the terms of this
Agreement. In the event of any conflict between the terms and
conditions of this Agreement and the terms and conditions of
a SOW, the terms and conditions of the SOW shall govern as
to that SOW only. Customer’s use of the Services is subject to
this Agreement and the applicable SOW.
3. LICENSE GRANT.
3.1 License Grant to Customer. Subject to the terms
and conditions of this Agreement, Julota grants Customer
(defined in the applicable SOW), during the term of the
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applicable SOW and the term of this Agreement (whichever
period is shorter), a non-exclusive, non-transferable right and
license to access and use the Services as provided for in the
applicable SOW. The Services will also be provided pursuant
to the service levels set forth in the Service Level Agreement
(“SLA”), which is attached as Exhibit B.
3.2 License Restrictions for Customer. Customer shall
not, directly or indirectly, permit any third party to: (i) reverse
engineer, decompile, disassemble or otherwise attempt to
discover the source code or underlying ideas or algorithms of
the Services; (ii) modify, translate, or create derivative works
based on the Services; (iii) rent, lease, distribute, sell, resell,
assign, or otherwise transfer its rights to use the Services; (iv)
make the use of the Services available to anyone other than
for its own internal purposes; (v) use the Services for
timesharing or service bureau purposes or otherwise for the
benefit of a third party; (vi) remove any proprietary notices
from the Services or any other Julota materials furnished or
made available hereunder; (vii) publish or disclose to third
parties any evaluation of the Services; (viii) use the Services
in automatic, semi-automatic or manual tools designed to
create virus signatures, virus detection routines, or any other
data or code for detecting malicious code or data; or (ix) use
the Services to build a competitive product or service, or copy
any features, functions or graphics of the Services.
3.3 API License. If provided for in the applicable SOW,
Julota hereby grants Customer, during the term of the
applicable SOW, a nonexclusive, nontransferable,
nonassignable, license to access and use the Julota API
solely in connection with its use of the Services.
3.4 License Grant to Julota. Customer grants Julota,
during the term of this Agreement and the applicable SOW, a
non-exclusive, non-transferable, non-sublicensable license
for it to use Customer Data and its trademarks (the “Marks”)
for the sole purpose of providing the Services or as otherwise
set forth in this Agreement. Customer reserves all ownership
and other rights in the Customer Data and the Marks not
expressly included herein and nothing in this Agreement shall
be deemed to convey or transfer to Julota any ownership
rights in or to the Customer Data or the Marks.
Notwithstanding the foregoing, Customer understands that it
may not be the exclusive owner of Customer Data.
3.5 License Restrictions for Julota. Julota’s license to
the Marks is subject to the following restrictions: (i) all of
Julota’s uses of the Marks must be preapproved by Customer;
(ii) Julota shall not use any Marks in such a way as to give the
impression that they are the property of anyone other than
Customer; and (iii) Julota shall comply with Customer’s
trademark guidelines, if any, and any other reasonable
requirements established by Customer concerning the style,
design, display, and use of its Marks. Customer’s trademark
guidelines, if any, are attached as Exhibit C.
4. PRIVACY. Julota may collect or store Customer Data,
which may contain Personal Data concerning Help Seekers in
connection with the provision of the Services. Julota will
comply with its non-disclosure obligations set forth in this
Agreement. The Parties agree to comply with the
requirements of all Health Privacy Laws. The Parties agree
that Julota will serve as a Business Associate with respect to
certain Services it provides to Customer. Accordingly, as it
applies to such Services, the Parties shall execute and abide
by the terms set forth in the business associate agreement
attached hereto and incorporated herein as Exhibit D (“BAA”).
5. PASSWORDS/SECURITY/DISCLOSURE.
5.1 Passwords. Customer is responsible for maintaining
the confidentiality of its passwords. Customer is solely
responsible for any and all activities that occur under its
account and all charges incurred from use of the Services
accessed with Customer’s passwords. Customer agrees to
immediately notify Julota of any unauthorized use of
Customer's account or any other breach of security known to
Customer. Julota shall have no liability for any loss or damage
arising from Customer's failure to comply with these
requirements.
5.2 Security. Julota will maintain the Services at a third-
party hosting facility and will implement industry standard
security precautions, which are intended to prevent
unauthorized access to Customer Data. Customer
acknowledges that, notwithstanding such security
precautions, use of, or in connection to, the internet provides
the opportunity for unauthorized third parties to circumvent
such precautions and gain access to the Services and
Customer Data.
5.3 Disclosure. Customer agrees that Julota and its
agents, which have agreed to confidentiality obligations at
least as restrictive as Julota’s obligations in this Agreement,
can access Customer Data and its account information in
order to respond to its service requests and/or as necessary,
in Julota’s sole discretion, to provide Customer with the
Service. Julota will not otherwise disclose such data except if
compelled by law, permitted by Customer, or pursuant to the
terms of the BAA and the terms of Julota’s Privacy Policy,
which is available at https://www.julota.com/privacy-policy
(the “Privacy Policy”) and is incorporated into this Agreement.
The terms of this Agreement shall supersede any inconsistent
terms in the Privacy Policy.
5.4 Permission to Disclose. By submitting any Help
Seeker’s Personal Data to the Hosted Services and providing
said Personal Data to Julota for processing, Customer
warrants that it has: (i) legal authority to disclose such
Personal Data in compliance with Health Privacy Laws and (ii)
if required by Health Privacy Laws, this Agreement, or Julota’s
Privacy Policy or other policies, the necessary permissions,
authorizations and consents from the Help Seekers that it
enters Personal Data about through the Services and for the
viewing and processing of their Personal Data and Customer
Data by Julota, its agents, third-party service providers, other
organizations utilizing the Hosted Services to provide
assistance to Help Seekers, and Care Teams as set forth
herein.
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6. OWNERSHIP.
6.1 With the exception of Customer Data, the Platform, the
Hosted Services, and all information, reports, studies, object
and source code (including without limitation the Services and
all modifications, enhancements, additions, upgrades, or other
works based thereon or related thereto), flow charts, product
documentation, diagrams, specifications, methods and other
tangible or intangible material of any nature whatsoever
produced through or as a result of or related to any product,
service or deliverable (collectively, “Works”) or development of
any data analytics or usage models hereunder, and all
patents, copyrights, trademarks and other proprietary rights
related to such Works and models, shall be the sole and
exclusive property of Julota, its Affiliates (defined below) or
their third party providers (collectively, “Julota Property”).
Nothing in the Agreement shall convey to Customer any title
to or ownership of any Julota Property. Customer hereby
irrevocably assigns and transfers to Julota, its Affiliates or their
third-party providers all rights, title, and interest in any such
Works and models. “Affiliate” means an entity that controls, is
controlled by, or under common control with a party, where
“control” means the direct or indirect ownership of more than
50% of the voting securities of such entity or party. No rights
are granted to Customer hereunder other than as expressly
set forth herein.
6.2 Customer acknowledges and agrees that Julota shall
have the right to utilize data capture, syndication, and analysis
tools, and other similar tools, to extract, compile, synthesize,
and analyze any non-personally and non-Customer
identifiable data or information resulting from Customer’s use
of the Service (“Statistical Data”). Statistical Data may be
collected by Julota for any lawful business purpose without a
duty of accounting to Customer, provided that the Statistical
Data is used only in an aggregated form, without specifically
identifying the source of the Statistical Data. Except for the
limited rights granted herein, at no time shall Julota acquire
any ownership, license, rights or other interest in or to the
Customer Data, all of which shall, as between Customer and
Julota, be and remain the confidential and proprietary
information of Customer.
6.3 Julota shall have a royalty-free, worldwide,
transferable, sub-licensable, irrevocable and perpetual license
to incorporate into the Service or otherwise use Statistical
Data, any suggestions, enhancement requests,
recommendations or other feedback Julota receives from
Customer.
7. CUSTOMER OBLIGATIONS.
7.1 Process. Customer shall assign two (2)
representatives who will be responsible for all communications
with Julota related to the use of the Services.
7.2 Conduct. Customer is and will be solely responsible
for its actions and the actions of its authorized users while
using the Services. Customer is and will also be solely
responsible for the actions of each Care Team and each of the
Care Team’s officers, directors, members, employees, agents,
contractors, subcontractors and individual(s) related to
Customer’s use of the Services or the provision of assistance
to any Help Seeker. Customer is and will be responsible for all
claims made by a Care Team related to any transaction
related to the Services. Customer acknowledges and agrees
that Julota is not liable for, or responsible to, remediate any
issues found on Customer’s network or in Customer’s web
traffic through the Services. In addition to the conduct
restricted in Section 3.2 (License Restrictions for Customer),
Customer agrees, on behalf of itself and its authorized user(s)
to: (i) abide by all laws and regulations including, without
limitation, all laws applicable to any service Customer provides
or any Care Team provides to a Help Seeker and all laws
applicable to the transmission of technical data exported from
the United States through the Services and to wireless e-mail
marketing and advertising; (ii) not to upload or distribute in any
way content that contain viruses, corrupted files, or any other
similar software or programs that may damage the operation
of the Services or another's computer or mobile device; (iii) not
to use the Services for illegal, fraudulent, unethical or
inappropriate purposes; (iv) not to interfere or disrupt networks
connected to the Services or interfere with the ability of others
to access or use the Services; (v) not to distribute, promote or
transmit through the Services any unlawful, harassing,
libelous, abusive, threatening, harmful, vulgar, obscene,
pornographic, indecent, defamatory, hateful, racially,
ethnically, unwanted or otherwise objectionable material of
any kind or nature; (vi) not to transmit or post any material that
encourages conduct that could constitute a criminal offense or
give rise to civil liability; (vii) not to interfere with another
customer's use and enjoyment of the Services or another
entity's use and enjoyment of similar services; (viii) not to
engage in, or permit others to engage in, contests, chain
letters or post or transmit "junk mail," "spam," "chain letters,"
or unsolicited mass distribution of e-mail; and (ix) to comply
with all regulations, policies and procedures of networks
connected to the Services, Julota, or Julota’s service
providers, as the same may be promulgated from time to time.
Julota may remove any violating data on the website posted
or stored using the Services or transmitted through the
Services, without notice to Customer; however, Julota has no
obligation to do so.
7.3 Customer shall maintain privacy policies on its website
and shall deliver printed hard copies of its privacy policies to
each Help Seeker prior to entering any information about the
Help Seeker through the Services. Customer will ensure that
its practices for storing and safeguarding Help Seeker related
information are consistent with industry privacy, security
standards and all applicable legal requirements. Customer
must obtain the necessary authorizations and its privacy policy
must include the following disclosures and terms sufficient to
allow for: (i) the collection and processing of data from Help
Seekers, including any Personal Data from a Help Seeker; (ii)
Julota’s processing of Help Seeker data; (iii) the use of
Personal Data belonging to Help Seekers as contemplated in
the provision of the Services and in the applicable SOW; (iv)
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the maintenance and retention of Personal Data after
assistance is rendered by Customer to a Help Seeker; v) the
processing and sharing of Personal Data and other data of
Help Seekers with other organizations utilizing the Hosted
Services and by Care Teams; and (vi) the sharing and utilizing
of each Help Seeker’s Personal Data and the aggregate data
derived therefrom by Julota. Customer shall be solely
responsible for obtaining and maintaining documentation of
any and all legally required written permissions, consents or
authorizations from Help Seekers before a Help Seeker’s
Personal Data is provided to Julota or placed on the Platform.
Any and all information provided by Customer to Julota via the
Hosted Services or any other Services relating to any Help
Seeker’s permissions, consents or authorizations shall be
accurate and valid. Customer shall notify Julota, on a form
provided and/or approved by Julota, of any restrictions on the
use or disclosure of a Help Seeker’s Personal Data that
Customer is required to abide by to the extent that such
restriction may affect Julota’s use or disclosure of that Help
Seeker’s Personal Data. Customer shall notify Julota of any
changes in, or revocation of, the permission, authorization or
consent by a Help Seeker for Customer to disclose such Help
Seeker’s Personal Data on the Platform. Notwithstanding the
foregoing revocation or change in authorization, Julota may
retain copies of that data in read only format in order to comply
with its statutory or regulatory requirements or to defend
against a claim or complaint.
8. FEES AND TAXES.
8.1 Fees. Customer agrees to pay Julota the fees set forth
on the applicable SOW for the Services, in accordance with
the fees, charges, and billing terms set forth in this Agreement
(collectively, “Fees”). All Fees are quoted in United States
currency. Except as otherwise provided in this Agreement,
Fees are non-refundable.
8.2 Additional Charges. Customer shall pay travel and
living expenses and other out-of-pocket expenses reasonably
incurred by Julota in connection with the Services. As
applicable, such out-of-pocket expenses shall be incurred in
accordance with Julota’s then-current corporate travel and
expense policy. If an out-of-pocket expense is listed in an
Exhibit, such expense may be changed to reflect changes
issued by the applicable vendor. All expenses incurred by
Julota for which it seeks reimbursement from Customer must
be preapproved in writing by Customer.
8.3 Payments. Unless stated otherwise on the applicable
SOW, all Fees are due and payable by Customer within thirty
(30) days after the invoice date. Any payment not received
from Customer by the due date shall accrue (except with
respect to charges then under reasonable and good faith
dispute), at the lower of one and a half percent (1.5%) of the
outstanding balance per month (being 18% per annum), or the
maximum rate permitted by law, from the date such payment
is due until the date paid. Customer shall also pay all sums
expended (including, without limitation, reasonable legal fees)
in collecting overdue payments.
8.4 Taxes. All fees set forth in this Agreement are
exclusive of all taxes and similar fees. Customer shall be
responsible for and shall pay in full all sales, use, excise or
similar governmental taxes imposed by any federal, state, or
local governmental entity upon the fees charged the Customer
under this Agreement, exclusive, however, of taxes based on
Julota’s income, which taxes shall be paid by Julota. If any
taxes for which Customer is responsible hereunder are paid
by Julota, Customer will promptly reimburse Julota upon
Customer’s receipt of proof of payment.
9. TERM. This Agreement commences on the Effective
Date and shall continue for one year, unless earlier terminated
in accordance with this Agreement. Following the initial Term,
this Agreement shall renew for successive twelve (12)-month
periods unless either party provides written termination notice
60 days prior to the end of the Term.
10. TERMINATION.
10.1 Breach. Except as otherwise provided in this Section
10, either party shall have the right to terminate this
Agreement or the applicable SOW upon written notice if the
other party has breached a material term of this Agreement or
the applicable SOW and has not cured such breach within
thirty (30) days of receipt of notice from the non-breaching
party specifying the breach.
10.2 Insolvency. Either party shall have the right to
terminate this Agreement if (i) the other party has a receiver
appointed for it or its property; (ii) any proceedings are
commenced by the other party under a Chapter 7 bankruptcy;
or (iii) the other party is liquidated or dissolved.
10.3 Failure to Pay/Customer Conduct. Julota shall have
the right to suspend or terminate access to the Services, at its
sole option, with or without notice to Customer, if: (i) any
payment is delinquent by more than sixty (60) days, or (ii) if
Customer breaches Sections 3.2, 5 or 7 of this Agreement
10.4 Immediate Termination. Julota may immediately
suspend or terminate this Agreement or the applicable SOW,
in its sole and absolute discretion, if Customer violates Section
7.2 of this Agreement or violates or misappropriates Julota’s
intellectual property rights related to the Services.
10.5 Effect of Termination. Termination of this Agreement
will terminate all SOWs. Termination of an individual SOW will
only terminate that SOW and will not result in the termination
of this Agreement, unless the SOW provides otherwise. Julota
shall not be liable to Customer or any third party for
suspension or termination of Customer’s access to, or right to
use, the Services under this Agreement. If Customer
terminates this Agreement or an SOW pursuant to Section
10.1 or if Julota terminates this Agreement or an SOW without
cause, Customer will be obligated to pay the balance due for
the Services up to the date of termination. If Julota terminates
this Agreement or an SOW pursuant to Section 10.1 or if
Customer terminates this Agreement or SOW without cause,
Customer shall pay any unpaid fees through the date of
termination and shall pay any unpaid fees covering the
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remainder of the term of all SOWs, if the Agreement is
terminated, or the applicable SOW, if only the SOW is
terminated. Upon the effective date of termination of this
Agreement for any reason, Customer’s access to the Services
will terminate and Customer shall cease accessing and using
the Services immediately and Julota shall cease use
immediately of any Marks. Sections 3.2, 4, 5, 6, 8 through 16
and 18 of this Agreement shall survive termination for any
reason.
11. CONFIDENTIALITY.
11.1 Obligations. Each of the Parties agrees to maintain
in confidence any proprietary or non-public information of the
other party, whether written or otherwise, disclosed by the
other party in the course of performance of this Agreement that
a party knows or reasonably should know is considered
confidential by the disclosing party (“Confidential
Information”). The Parties hereby agree the terms and
conditions of this Agreement, and any discussions related to
the Services shall be considered Confidential Information.
Confidential Information also includes: (i) trade secrets and
proprietary information (including that of any client, supplier or
licensor); (ii) customer lists, client lists, business plans,
information security plans, business continuity plans, requests
for proposals or requests for information and responses to
such requests that the Parties may change after the Effective
Date, and proprietary software programs; and (iii) any other
information received from or on behalf of a disclosing party
that is marked confidential or that the recipient of the
information could reasonably be expected to know is
confidential. The receiving party shall not disclose, use,
transmit, inform or make available to any entity, person or
body any of the Confidential Information, except as a
necessary part of performing its obligations hereunder, and
shall take all such actions as are reasonably necessary and
appropriate to preserve and protect the Confidential
Information and the Parties’ respective rights therein, at all
times exercising at least a reasonable level of care. Each
party agrees to restrict access to the Confidential Information
of the other party to those employees or agents who require
access in order to perform their obligations under this
Agreement and who agreed to be bound by these obligations
of confidentiality and non-disclosure. Except as otherwise
expressly provided in this Agreement, upon termination of this
Agreement for any reason, and at the request of the disclosing
party, the receiving party shall promptly return or destroy (at
the disclosing party’s option), all copies of the other party’s
Confidential Information. Notwithstanding the foregoing, each
party may maintain archival copies of Confidential Information
for the applicable statutory periods.
11.2 Exclusions. Confidential Information shall not include
any information that is (i) already known to the receiving party
at the time of the disclosure; (ii) publicly known at the time of
the disclosure or becomes publicly known through no wrongful
act or failure of the receiving party; (iii) subsequently disclosed
to the receiving party on a non-confidential basis by a third
party not having a confidential relationship with the other party
hereto that rightfully acquired such information; or (iv)
communicated to a third party by the receiving party with the
express written consent of the other party hereto. A disclosure
of Confidential Information that is legally compelled to be
disclosed pursuant to a subpoena, summons, order or other
judicial or governmental process, or in response to a request
under Washington’s Public Records Act, Chapter 42.56 RCW,
but only to the extent that the Public Records Act requires
disclosure, shall not be considered a breach of this
Agreement; provided the receiving party provides prompt
notice of any such subpoena, order, or the like to the other
party so that such party will have the opportunity to obtain a
protective order or otherwise oppose the disclosure.
12. WARRANTY.
12.1 Disclaimer of Warranties. EXCEPT AS EXPRESSLY
PROVIDED IN THIS AGREEMENT, THE SERVICES ARE
PROVIDED “AS IS,” AND, TO THE MAXIMUM EXTENT
PERMITTED UNDER APPLICABLE LAW, JULOTA MAKES
NO AND HEREBY DISCLAIMS ALL OTHER WARRANTIES,
REPRESENTATIONS, IMPLIED WARRANTIES OR
MERCHANTABILITY, WITH RESPECT TO THE USE,
MISUSE, OR INABILITY TO USE THE SERVICES (IN
WHOLE OR IN PART) OR ANY OTHER PRODUCTS OR
SERVICES PROVIDED TO CUSTOMER BY JULOTA, OR
OTHERWISE UNDER THESE TERMS. WITHOUT LIMITING
THE FOREGOING, JULOTA DOES NOT WARRANT THAT
ALL ERRORS CAN BE CORRECTED, OR THAT USE OF
THE SERVICES WILL BE UNINTERRUPTED OR ERROR
FREE. JULOTA DISCLAIMS ALL LIABILITY FOR ANY
MALFUNCTIONING, IMPOSSIBILITY OF ACCESS, OR
POOR USE CONDITIONS OF THE SERVICE DUE TO
INAPPROPRIATE OR DEFECTIVE EQUIPMENT,
DISTURBANCES RELATED TO INTERNET SERVICE
PROVIDERS, TO THE SATURATION OF THE INTERNET
NETWORK, ERROR, OMISSION, INTERRUPTION,
DELETION, DEFECT, DELAY IN OPERATION OR
TRANSMISSION, COMMUNICATIONS LINE FAILURE,
THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS
TO, OR ALTERATION OF, USER COMMUNICATIONS,
PROBLEMS RELATED TO THE SERVICES OR ITS USE,
LOSS OF PERSONAL CONTENT, OR ANY OTHER
REASONS. JULOTA ALSO EXPLICITLY DISCLAIMS ANY
WARRANTIES RELATED TO BUSINESS RESULTS THAT
MAY BE OBTAINED BY USE OF THE SERVICES AND
SPECIFICALLY STATES NO SUCH REPRESENTATIONS
ARE OR HAVE BEEN MADE TO CUSTOMER. CUSTOMER
WILL BE SOLELY RESPONSIBLE FOR (I) ESTABLISHING
AND MAINTAINING AN INTERNET CONNECTION
SUFFICIENT FOR THE SERVICES TO FUNCTION
PROPERLY, (II) THE CONTENT AND EFFICACY OF ALL
MARKETING INITIATIVES, AND (III) FULFILLING ALL ITS
OBLIGATIONS TO HELP SEEKERS IN CONNECTION WITH
THE USE OF THE SERVICES. CUSTOMER WILL FOLLOW
PROPER BACK-UP PROCEDURES FOR ANY OTHER
PROGRAMMING AND ALL DATA TO PROTECT AGAINST
LOSS OR ERROR RESULTING FROM THE USE OF ANY
EQUIPMENT OR THE SERVICES. CUSTOMER AGREES
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THAT JULOTA AND THE PLATFORM AND SERVICES DO
NOT MAKE CLINICAL, MEDICAL OR OTHER DECISIONS
OR RECOMMEND, ENDORSE OR MAKE ANY MEDICAL,
CLINICAL OR RELATED REPRESENTATIONS OR
WARRANTIES. CUSTOMER ASSUMES ALL
RESPONSIBILITY IN CONNECTION WITH DISCLOSING
CUSTOMER DATA ON THE PLATFORM.
12.2 Open Source. Parts of the software for the Services
may be subject to the GPL (General Public License) for open
source software, and all warranties are disclaimed for such
parts by the Free Software Foundation, Inc. See the GNU
General Public License for more details. Similarly, parts of
such software may be subject to the MIT License for open
source software, and therefore, the following restrictions: MIT
grants permission, free of charge to any person obtaining a
copy of the software and associated documentation files, to
deal in the software without restriction, including without
limitation the rights to use, copy, modify, merge, publish,
distribute, sublicense, and/or sell copies of the software, and
to permit persons to whom the software is furnished to do so,
subject to the following conditions and notwithstanding
anything to the contrary in this Agreement: the software is
provided “AS IS” without warranty of any kind, express or
implied, including but not limited to, the warranties of
merchantability, fitness for a particular purpose and non-
infringement, In no event shall the authors or copyright
holders be liable for any claim, damages or other liability,
whether in an action of contract, tort or otherwise, arising from,
out of or in connection with the software or the use of other
dealings in the software.
12.3 Mutual Warranties. Each party represents and
warrants that: (i) it does not have any contractual obligations
that would prevent it from entering into this Agreement; and (ii)
it will comply with all laws and regulations directly applicable
to its performance of its obligations under this Agreement or
its use of the Services.
13. INDEMNIFICATION.
13.1 By Customer. Unless expressly barred by state or
federal law, Customer shall indemnify, defend, hold harmless
Julota, its Subcontractors and Affiliates, and each of their
respective directors, officers, employees, agents, permitted
successors and assigns (each a Julota Indemnitee) or, at its
option, settle, any claim, charge, demand, action, audit, or suit,
whether in contract, tort, strict liability, negligence, or
otherwise, for any and all losses, costs, charges, claims,
demands, fees (including attorneys’ fees), expenses, or
damages of any nature or kind arising out of, connected with,
or resulting from or based on: (i) Customer’s negligent use of
the Service, or (ii) improper, negligent, or prohibited collection,
input, or disclosure of Customer Data by Customer or its Care
Team; (iii) negligent selection or supervision of any Care
Team Customer uses or any employment claim by a Care
Team or Customer employee that doesn’t involve a Julota
employee or agent; and/or (iv) any breach of this Agreement
by Customer, its affiliates, directors, officers, employees or
agents, and Customer shall pay any final judgment entered
against Julota in any such proceeding or settlement provided
(x) Customer is promptly notified in writing of such claim or
suit, (y) Customer or its designee has sole control of such
defense or settlement, and (z) Julota gives all information and
assistance requested by Customer or such designee. Julota
will promptly notify Customer in writing of such claim or suit
and give all information and assistance reasonably requested
by Customer or such designee.
13.2 By Julota. Julota shall indemnify, defend, or at its
option settle, any third party claim or suit based on (i) the
provision of the Services violate applicable law (ii) the
negligent performance of the Services, or (iii) the Services
(excluding any third party software) violate, infringe or
misappropriate any United States patent, copyright, trademark
or trade secret and Julota shall pay any final judgment entered
against Customer in any such proceeding or agreed to in
settlement; provided (i) Julota is promptly notified in writing of
such claim or suit, (ii) Julota or its designee has sole control of
such defense or settlement, and (iii) Customer gives all
information and assistance requested by Julota or such
designee. To the extent that use of the Services is enjoined,
Julota may at its option and sole cost (a) modify the Services
so as not to infringe or misappropriate any intellectual property
belonging to the complaining third party while providing
materially equivalent functionality (b) procure for Customer the
right to use the Services, (c) replace the Services with other
suitable products providing materially equivalent functionality,
or (d) refund the Initial Term portion of the Fee(s) paid by
Customer for the Services or the affected part thereof. Julota
shall have no liability under this Section 13.2 or otherwise to
the extent a claim or suit is based upon (1) use of the Services
in combination with software or hardware not provided by
Julota if infringement would have been avoided in the absence
of such combination, (2) modifications to the Services not
made by Julota, if infringement would have been avoided by
the absence of such modifications, (3) use of any version other
than a current release of the Services, if infringement would
have been avoided by use of a current release, or (4) any
action or omission of Customer for which Customer is
obligated to indemnify Julota under Section 13.1 above.
THIS SECTION 13.2 STATES JULOTA’S ENTIRE LIABILITY
AND CUSTOMER'S SOLE AND EXCLUSIVE REMEDY FOR
VIOLATION, INFRINGEMENT AND MISAPPROPRIATION
CLAIMS BASED ON THE SERVICES.
14. LIMITATION OF LIABILITY.
14.1 Limitation on Direct Damages. EXCEPT AS IT
RELATES TO JULOTA’S INDEMNIFICATION
OBLIGATIONS, IN NO EVENT SHALL JULOTA’S
AGGREGATE LIABILITY, IF ANY, ARISING OUT OF OR IN
ANY WAY RELATED TO THIS AGREEMENT EXCEED THE
FEES PAID BY CUSTOMER FOR THE SERVICES FOR THE
PERIOD OF TWELVE (12) MONTHS PRIOR TO THE EVENT
THAT DIRECTLY GAVE RISE TO THE DAMAGES
CLAIMED, WITHOUT REGARD TO WHETHER SUCH
CLAIM IS BASED IN CONTRACT, TORT (INCLUDING,
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WITHOUT LIMITATION, NEGLIGENCE), PRODUCT
LIABILITY OR OTHERWISE.
14.2 Waiver of Consequential Damages. IN NO EVENT
SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT,
SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES,
INCLUDING, WITHOUT LIMITATION, LOSS OF DATA OR
LOSS OF PROFITS, WITHOUT REGARD TO WHETHER
SUCH CLAIM IS BASED IN CONTRACT, TORT
(INCLUDING, WITHOUT LIMITATION, NEGLIGENCE),
PRODUCT LIABILITY OR OTHERWISE, EVEN IF A PARTY
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES.
15. MARKETING. Customer and Julota agree to issue a
press release announcing Customer’s participation and use of
the Services for publication within 30 days of the Effective
Date. Julota shall have the right to use Customer’s name as
part of a general list of customers and may refer to Customer
as a user of the Services on its website and in its general
advertising and marketing materials.
16. NON-SOLICITATION. During the term and for a
period of twelve (12) months thereafter, Julota and Customer
shall not knowingly, directly or indirectly, solicit, recruit, employ
or contract with any employees of one another.
17. INSURANCE. Julota will maintain (and shall cause
each of its agents, independent contractors and
subcontractors performing any services hereunder to
maintain) at its sole cost and expense at least the following
insurance covering its obligations under this Agreement:
17.1 Commercial General Liability. With coverage of not
less than One Million Dollars ($1,000,000) each occurrence
(for bodily injury and for damage to property); including
coverage for premises and operations, contractual liability,
broad form property damage and products and completed
operations and Three Million Dollars ($3,000,000) in the
aggregate.
17.2 Cyber Liability Insurance. With coverage of not less
than Three Million Dollars ($3,000,000) in the aggregate which
shall include at a minimum coverage for (i) unauthorized
access by an outside party, which may take the form of a
“hacker attack” or a “virus” introduced by a third party; (ii)
failure to prevent a party other than an insured from
unauthorized access to, use of, tampering with or introduction
of malicious code into data, programs or systems; and (iii)
breach of Customer’s data.
17.3 Policy Terms. Such insurance shall name Customer
as an additional insured. A blanket endorsement or an
additional insured endorsement evidencing the policy shall be
provided to Customer upon execution. Julota shall provide
Customer with written notice of any policy cancellation within
thirty (30) days of the receipt of such notice. Julota shall obtain
replacement insurance policies meeting the requirements of
this Section 17.
18. GENERAL.
18.1 Notices. All notices to a party shall be in writing and
sent to the addresses specified in this Agreement (and in the
case of Julota, to the attention of the Chief Operating Officer)
or such other address as a party notifies the other party, and
shall be deemed to have been duly given when received, if
personally delivered; when receipt is electronically confirmed,
if transmitted by facsimile or email; three days after it is sent,
if sent for next day delivery by recognized overnight delivery
service; and upon receipt, if sent by certified or registered mail,
return receipt requested.
18.2 Governing Law and Jurisdiction. This Agreement
shall be governed by the laws of the State of Colorado,
excluding its conflict of laws rules. Each party hereby
irrevocably submits to the exclusive jurisdiction of the Courts
within the County of El Paso located in the State of Colorado.
To the extent that Customer’s principal place of business is
outside of the State of Colorado and the jurisdiction that
Customer is located has implemented health care laws or
regulations, those health care laws and regulations will
govern. Any provision of this Agreement held to be
unenforceable shall not affect the enforceability of any other
provisions of this Agreement. Each party further hereby
waives any right to jury trial in connection with any action or
litigation in any way arising out of or related to this Agreement.
18.3 Dispute Resolution. Before initiating legal action
against the other party relating to a dispute herein, the Parties
agree to work in good faith to resolve disputes and claims
arising out of this Agreement. To this end, each party may
request that the other party designate an officer or other
management employee with authority to bind such party to
meet to resolve the dispute or claim. If the dispute is not
resolved within 30 days of the commencement of informal
efforts under this paragraph, either party may pursue formal
legal action. This paragraph will not apply if expiration of the
applicable time for bringing an action is imminent and will not
prohibit a party from pursuing injunctive or other equitable
relief to which it may be entitled.
18.4 Relationship of the Parties. The Parties to this
agreement are independent entities, and no agency,
partnership franchise, joint venture or employee-employer
relationship is intended or created by this Agreement.
18.5 Assignment. Customer may not assign any of its
rights or obligations hereunder, whether by operation of law or
otherwise, without the prior written consent of Julota (not to be
unreasonably withheld). Notwithstanding the foregoing,
Customer may assign this Agreement in its entirety (including
all SOWs), without consent of Julota, in connection w ith a
merger, acquisition, corporate reorganization, or sale of all or
substantially all of its assets not involving a direct competitor
of Julota. In the event that Customer assigns its rights or
obligations hereunder, in violation of this Section, Julota may
at its election, terminate this Agreement. Subject to the
foregoing, this Agreement shall bind and inure to the benefit
of the parties, their respective successors and permitted
assigns.
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18.6 Entire Agreement. This Agreement, including all
SOWs, exhibits and addenda hereto, constitutes the entire
agreement between the Parties and supersedes all prior and
contemporaneous agreements, proposals or representations,
written or oral, concerning its subject matter. No modification,
amendment, or waiver of any provision of this Agreement shall
be effective unless in writing and either signed or accepted
electronically by the party against whom the modification,
amendment or waiver is to be asserted. However, to the extent
of any conflict or inconsistency between the provisions in the
body of this Agreement and any SOW, exhibit or addendum
hereto, the terms of such SOW, exhibit, or addendum shall
prevail. Notwithstanding any language to the contrary therein,
no terms or conditions stated in a Customer purchase order or
other order documentation (excluding SOWs) shall be
incorporated into or form any part of this Agreement, and all
such terms or conditions shall be null and void. Further,
notwithstanding the foregoing, terms of the SOW that conflict
with or are inconsistent with this Agreement, which conflict
with statutory or regulatory requirements will not control or
supersede this Agreement and such terms will be deemed
waived.
18.7 Force Majeure. Neither party shall be in default if its
failure to perform any obligation under this Agreement is
caused solely by supervening conditions beyond that party’s
reasonable control including, without limitation, acts of God,
civil commotion, war, strikes, labor disputes, third party
Internet service interruptions or slowdowns, vandalism or
“hacker” attacks, acts of terrorism or governmental demands
or requirements.
18.8 No Third-Party Beneficiary Rights. This Agreement
is not intended to and shall not be construed to give any third-
party any interest or rights (including, without limitation, any
third-party beneficiary rights) with respect to or in connection
with any agreement or provision contained herein or
contemplated hereby.
18.9 Headings. The headings of the sections of this
Agreement are for reference only and shall not modify, define
or limit any of the terms or provisions of this Agreement.
18.10 Severability. If any provision of this Agreement shall
be held to be illegal, invalid or unenforceable, that provision
will be enforced to the maximum extent permissible so as to
affect the intent of the parties and the validity, legality and
enforceability of the remaining provisions shall not in any way
be affected or impaired thereby.
18.11 Construction. This Agreement has been negotiated
by the Parties and will be fairly interpreted in accordance with
its terms and without any strict construction in favor or against
any party.
18.12 Counterparts and Signatures. This Agreement and
any SOWs, exhibits, addenda and amendments may be
executed in counterparts, each of which shall be deemed an
original and which shall together constitute one instrument.
Each party may execute this Agreement and any SOWs,
exhibits, addenda Exhibit or amendment hereto in the form of
an electronic record utilizing electronic signatures, as such
terms are defined in the Electronic Signatures in Global and
National Commerce Act (15 U.S.C. § 7001 et seq.). Customer
and its affiliates will not dispute the validity or authenticity of
electronic signatures submitted to Julota by Customer or its
affiliates, nor will Customer or its affiliates dispute the legal
authority, validity or authenticity of those who sign with such
electronic signatures to bind Customer and its affiliates.
Electronic signatures by Customer and its affiliates, as well as
signatures by either party transmitted by facsimile or
electronically via PDF or similar file delivery method, shall
have the same effect as an original signature.
18.13 Federal Government End Use Provisions. If
Customer is a U.S. federal government end user, the Services
are a “Commercial Item” as that term is defined at 48 C.F.R.
§2.101, consisting of “Commercial Computer Software” and
“Commercial Computer Software Documentation”, as those
terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202.
Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1
through 227.7202-4, as applicable, these Services are
licensed to You with only those rights as provided under the
terms and conditions of this Agreement.
Each party hereto has caused this Agreement to be executed
by its authorized representative with effect from the Effective
Date.
TouchPhrase Development, LLC d/b/a Julota
By: _______________________ _______________
Name: DATE
Title:
City of Auburn, WA (“Customer”)
By: _______________________ _______________
Name: Nancy Backus, Mayor DATE
Attest:
By: _______________________ _______________
Name: Shawn Campbell, City Clerk DATE
Approved as to form:
By: _______________________ _______________
Name: Douglas Ruth, Assistant City Attorney DATE
DocuSign Envelope ID: F4E7F4AE-D198-405E-AB39-3639A9682EE8
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2/19/2020
CEO
2/19/2020
Scott Cravens
2/19/2020
Julota® SaaS Agreement
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EXHIBIT A
Statement of Work No. 1
Service and Fees
This Statement of Work No. 1 (“SOW”) is entered as of 1/13/2020 (the “Effective Date”) by and between TouchPhrase Development,
LLC d/b/a Julota (“Julota”) and City of Auburn, WA (“Customer”). Except as otherwise specifically provided herein, the terms and
conditions of the agreement between Julota and Customer dated 1/13/2020 (the “Agreement”) are incorporated herein by reference.
Any capitalized term used but not defined in this SOW shall have the meaning first assigned to it in the Agreement.
A. Term:
This SOW shall continue in full force beginning on the Effective Date and ending on 1/12/2021 (the "Initial Term"), after which date
this SOW shall automatically renew for successive 1-year periods (each, a "Renewal Term") until such time as either party elects
not to renew this SOW by providing written notice of non-renewal to the other party at least 60 days prior to the expiration of the
Initial Term or each Renewal Term.
B. License and Deliverables:
1. Services: Julota will license to Customer access to a web-based and mobile integrated software for tracking
services provided to Help Seekers on the Platform, which is called "Julota Impact." Customer and its authorized users may access
the Services for the purpose of providing short or long-term Help Seeker contact, tracking, monitoring and care. Customer will,
through the administration panel of Julota Impact, create and authorize new authorized users. Julota Impact software will allow
Customer and its authorized users to communicate action steps necessary to integrate and coordinate the care of Help Seekers.
2. Authorized users: Authorized users may be individuals from Customer's organization or Care Teams and their
employees. Customer may authorize an unlimited number of authorized users to access Julota Impact through Customer's license.
3. Usage and Storage: The amount of usage of the Hosted Services (not including enrollments) and data storage
is unlimited.
4. Excess Hosted Service Usage Fee: $0
5. Service Levels: Julota will provide general support for Julota Impact as provided for in the SLA attached as
Exhibit “B” to the Agreement.
C. Fees and Expenses:
1. Initial Term: The total fees and expenses, excluding applicable taxes, for unlimited new enrollments for the Initial
Term shall be $ 15,000.00 ( Fifteen thousand dollars) payable on 1/13/2020 . This includes 0 hours for
customization and 0 hour for legal fees. In addition, implementation services are $ 3,800.00 . To include:
a) Data Migration
b) Workflow understanding and guidance
c) Newly provided work flow documents as PDF and on application
d) Launch Support (Post Implementation Support)
e) 7 days of Elite Support Services
f) Two 60-minute training sessions
2. Renewal Terms:
For the second year (the first renewal term), from 1/13/2021 through 1/12/2022 and for subsequent yearly
terms, the fees shall be according to this schedule immediately below, payable within 30 days of the
commencement of the Renewal Term. The fees shall be assessed based on yearly enrollments and increases
in the consumer price index plus up to 2%.
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Schedule:
240 total yearly new enrollments … $15,000.00
360 total yearly new enrollments … $21,000.00
Over 360 total yearly new enrollments … to be negotiated
3. Payment: All payments shall be paid within 30 days of the date on the invoice. The fee for the Initial Term
shall be paid upon execution of this SOW. Payments should be made payable to “Julota” and sent to the
following address:
Julota
Attention: Accounting Department
102 S. Tejon St., Suite 1100
Colorado Springs, CO 80903
Julota may change the payment method provided it does so in writing to Customer.
C. Schedule:
Upon execution of the Agreement and this SOW, provided the fee for the Initial Term is paid upon execution of this SOW, Julota will
commence the planning and execution of the Services with the intent of launching the Services for Customer by TBD____.
D. Service Changes:
Julota reserves the right, in its sole discretion, to make any changes to the Services that it deems necessary or useful to:
1. maintain or enhance (i) the quality or delivery of the Services for its customers, (ii) the competitive strength of
or market for Julota’s services, or (iii) the cost efficiency or performance of the Services; or
2. to comply with applicable Law.
Notwithstanding the foregoing, in no event will such Julota initiated changes result in increased cost to Customer during the term of
this SOW.
Customer understands that daily and weekly Julota initiated changes may occur without advance notice and such changes are for
the purpose of bug fixes and minor improvements.
During the term of this SOW, Julota shall provide to Customer at no additional charge the following:
1. any and all changes that it develops with respect to the Services, unless such changes are considered optional
to the Customer and bear additional costs to Julota outside of costs for Julota initiated implementation and
development;
2. any and all changes required by federal or state governmental, or professional regulatory man dates related to
the Customer’s use of the Services; and
3. the Documentation associated with any changes.
Without limiting the foregoing, Customer may, at any time during the Term, request in writing changes to the Services. The Pa rties
shall evaluate the requested changes and, if agreed, implement all such requested changes in accordance with a mutually-agreed
change order. No requested changes will be effective unless and until memorialized in a written change order signed by both Parties.
E. Subcontractors:
Julota may from time to time in its discretion engage third parties to perform Services (each, a “Subcontractor”)
F. On-Site Resources:
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Any Julota personnel visiting Customer’s facilities shall comply with all applicable Customer policies regarding access to, use of,
and conduct within such facilities. Customer will provide copies of such policies to Julota upon request.
G. Customer Acknowledgments:
Customer shall be responsible for purchasing, acquiring and installing all hardware associated with the Agreement and this SOW.
Customer shall also be responsible for all training. Julota has no responsibility related to any of the hardware, including, but not
limited to, in-store hardware (iPads, cables, cases, etc.). Julota may advise Customer regarding proper deployment of Services,
but such advice is without warranty and provided “As Is”.
Each party hereto has caused this Statement of Work to be executed by its authorized representative as of the Effective Date.
TouchPhrase Development, LLC d/b/a Julota
By: _________________________
Name: ________________________
Title: ________________________
Date: _____________________
City of Auburn, WA (“Customer”)
By: _______________________ _______________
Name: Nancy Backus, Mayor DATE
Attest:
By: _______________________ _______________
Name: Shawn Campbell, City Clerk DATE
Approved as to form:
By: _______________________ _______________
Name: Douglas Ruth, Assistant City Attorney DATE
DocuSign Envelope ID: F4E7F4AE-D198-405E-AB39-3639A9682EE8
2/19/2020
2/19/2020
Scott Cravens
2/19/2020
CEO
2/19/2020
Julota® SaaS Agreement
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EXHIBIT B
Service Level Agreement
In performing the Services for Customer, Julota’s level of performance shall be at least equal to or exceed the Service Levels set
forth in this Service Level Agreement (this “SLA”) at all times during the Term of the applicable Statement of Work.
A. Definitions. Unless otherwise defined in this Addendum, the capitalized terms in this Addendum have the following
meaning. Defined terms that are not defined in this Addendum will have the same meaning as in the Agreement.
1. “Authorized User” is a person who has been granted authority to use the Services by the Customer
Representative.
2. “Availability” means that the Services are readily available to Customer and operating without material Error,
excluding any Outages and “Low” level incidents (defined below).
3. “Customer Representative” means the single person that Customer has designated in writing to Julota to be its
Customer Representative. Customer may change the Customer Representative by written notice to Julota. Only
one person may be designated as Customer Representative at any time. In addition to the authority designated in
this Addendum, the Customer Representative is awarded all rights designated to Authorized Users (e.g., the
ability to contact the Support Desk). Only the Authorized Users may contact the Support Desk.
4. “Emergency Maintenance” means the downtime required by Julota for upgrading or maintaining the Services;
provided, that Julota has given Customer at least twenty-four hours prior written notice of such downtime,
provided that Emergency Maintenance does not exceed five (5) hours per month, and provided that Emergency
Maintenance does not occur more than six (6) times per year.
5. “Failure” means any failure of Julota to meet a Service Level requirement; but excludes those failures attributable
to a Force Majeure event.
6. “Monthly Availability Percentage” means the amount equal to the total number of minutes (multiply the number
of calendar days in any given month by the product of 24 times 60) in the applicable calendar month, minus the
total Outage time for that month, then divided by the total number of minutes.
7. “Outage” means the period (measured in minutes) that the Services are not readily available to Customer and/or
are operating with material Error; but shall not include: (i) Scheduled Downtime (which will not exceed ten (10)
hours in aggregate per month); (ii) emergency maintenance activities which will not exceed five (5) hours per
month; (iii) periods of unavailability attributable to Customer’s negligent acts or omissions; or (iv) Customer’s
failure to timely respond to Julota in connection with the resolution of any Problem.
8. “Regular Release” means releases of minor product updates for upgrading or maintaining the Services;
provided that there shall be no more than two regular releases per week and downtime for these weekly releases
does not exceed sixty (60) minutes for each release.
9. “Scheduled Downtime” means the downtime required by Julota for upgrading or maintaining the Services;
provided, that (i) such downtime occurs between the hours of 22:00 MT USA and 5:00 MT USA (or such other
hours that Customer has previously and specifically approved in writing); and (ii) Julota has provided five (5)
business days prior written notice of such downtime. This may also be referred to as “Scheduled Maintenance”.
(iii) not to exceed 4 hours each month.
10. “Support Desk” is a resource that provides administrative support and technical support to Authorized Users.
B. Technical Support.
1. Contact Methods. Julota will make available to all the Authorized Users the ability to contact the Support Desk via
email (“Support Email”). For customers purchasing Elite Services, there will also be a telephone number (“Support
Hotline”).
2. User Support Hours. Standard user support hours are Monday – Friday from 9 AM to 9 PM Mountain Time with the
exception of state and Federal holidays. In the event calls or emails are received outside of User Support Hours,
Julota will address the Authorized User’s query during User Support Hours with the exception of Critical events (as
discussed below).
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3. Technical support will be limited to the permissions of the Authorized User, which will be determined by the
Customer Representative pursuant to the “Protocol Authorization Form,” a sample of which is attached as “Annex
A” in blank format. The permissions will be defined in the Protocol Authorization Form. The Protocol Authorization
Form will set forth the Authorized User’s permissions granted to him or her.
4. At the time that the Authorized User contacts the Support Desk, the Authorized Users permissions will be verified in
order to determine the scope of support that may be granted. If an Authorized User does not have sufficient
permissions (e.g., they are attempting to report an issue for an area that they do not have the authority to access,
the event will be deemed unreported).
C. Severity Levels and Response Times. The following are a description of the service levels and the service level
response times:
1. Critical. An incident with a severity level of “Critical” is defined as one that produces an emergency situation (e.g.,
system down) in which the Services are substantially or completely non-functional or inoperable. In the event of a
Critical incident, the Authorized User shall contact the Support Desk to report the problem. If the reported event is
Critical and outside of User Support Hours, the Authorized User shall contact the Support Desk via the Support
Email, which is monitored 24x7x365, excluding State and Federal holidays. The Support Desk will contact the
Authorized User, who reported the incident within four (4) hours to diagnose and begin remediation of the event,
and will use commercially reasonable efforts to resolve the event as soon as is reasonably possible under the
circumstances. Any Authorized User may contact the support desk to report a Critical incident, even if the issue in
question relates to a portion of Julota that is not under the purview of the Authorized User’s permissions. In this
case, the Support Desk will take the report of the issue, but will not contact the reporting user with resolution, but
instead, will contact the Customer Representative to report resolution.
2. High. An incident with a severity level of “High” is defined as one that produces a detrimental situation in which the
Services are usable, but materially incomplete; performance (response time) of the Services is degraded
substantially such that there is a severe impact on use under reasonable loads; one or more mainline functions or
commands is inoperable; or the use is otherwise significantly impacted. If the reported event is a High severity, the
Support Desk will contact the Authorized User who reported the event within eight (8) User Support Hours to
diagnose and begin remediation of the event and will use commercially reasonable efforts to resolve the event with
five (5) business days. Any authorized user may contact the support desk to report any issue, even if the issue in
question relates to a portion of Julota that is not under the purview of the authorized user’s permissions.
Notwithstanding the foregoing, if the Authorized User that reported the event is not under the purview of the
Authorized User’s permissions, the Support Desk will take the report of the issue, but will not contact the reporting
user with resolution, but instead, will contact the Customer Representative to report resolution.
3. Low. An incident with severity level of “Low” is defined as one that produces an inconvenient situation in which the
Services are usable but do not provide a function in the most convenient or expeditious manner and the Authorized
User suffers little or no significant impact. If the reported event is Low severity, Julota will attempt to resolve the
event in a commercially reasonable manner in future maintenance releases. Only the Authorized User may contact
the support desk to report the issue.
D. Availability
1. Availability Objective: Julota will provide 99.5% Availability (as defined below) for the Julota APIs within Julota’s
Immediate Control. For purposes hereof, "Availability” or “Available” means the Julota APIs are available for access
and use through Julota’s Internet connection.
“Immediate Control” includes Julota’s services within the Julota data center which extends to, includes and terminates
at the Internet Service Provider (“ISP”) circuit termination point on the router in Julota’s data center (i.e., public
Internet connectivity).
Specifically excluded from the definition of “Immediate Control” are the following:
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a) Equipment, data, materials, software, hardware, services and/or facilities provided by or on behalf of Customer
or a third party entity (or any of their vendors or service providers) and Customer’s or a third party entity’s network
services.
b) Acts or omissions of Customer, their employees, contractors, agents or representatives, third party vendors or
service providers or anyone gaining access to the Julota APIs at the request of Customer.
c) Issues arising from bugs or other problems in the software, firmware or hardware of third parties.
d) Delays or failures due to circumstances beyond Julota’s reasonable control that could not be avoided by its
exercise of due care.
e) Any outage, network unavailability or downtime outside the Julota data center.
2. Availability Calculation: Availability is based on a monthly calculation. The calculation will be as follows: ((a – b) /
a) x 100, where “a” is the total number of hours in a given calendar month, excluding Scheduled Maintenance (as
defined in A 9 above), and “b” is the total number of hours that service is not Available in a given month.
3. Remedies: In the event that Julota is unable to provide the Availability objective noted below in any given calendar
month, Customer will receive a credit on its next monthly invoice equal to the corresponding percentage noted below
of one (1) month’s fees for the Julota services for the month in which the Availability objective was not obtained,
which will not exceed 15% of the fees due to Julota for that calendar month.
Julota APIs Availability Credit
Uptime of 99.5% - 100% No Credit
Uptime of 99.0% - 99.5% 1%
Uptime of 98.0% - 98.9% 2%
Uptime of 97.0% - 97.9% 5%
Uptime of 95.0% - 96.9% 10%
Less than 95.0% 15%
Customer’s right to receive credit(s) (“Service Credits”) will be Customer’s exclusive remedy for Julota’s failure to
satisfy this Service Level Agreement. Remedies will not accrue (i.e., no Service Credits will be issued and an outage
will not be considered unavailability for purposes of this Service Level Agreement) if Customer is not current in its
payment obligations either when the outage occurs or when the credit would otherwise be issued. To receive Service
Credits, Customer must submit a written request, within fifteen (15) days after the end of the month in which the
Julota APIs were unavailable, or Customer’s right to receive Service Credits with respect to such unavailability will
be waived.
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EXHIBIT C
Customer Trademark Guidelines – left blank at this time
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Exhibit D
HEALTHCARE CONFIDENTIALITY COMPLIANCE AGREEMENT - HIPAA Business Associate Agreement
This HEALTHCARE CONFIDENTIALITY COMPLIANCE AGREEMENT - HIPAA Business Associate Agreement (“HCCA” or
“Agreement”) is entered into and effective on 1/13/2020 (“Effective Date”) by and between the City of Auburn, WA (“Customer”) and
TouchPhrase Development, LLC d/b/a Julota (“Provider” or “Business Associate”).
THE PARTIES THEREFORE AGREE TO THE FOLLOWING:
1. Preamble and Definitions
1.1. The Parties hereby acknowledge for purposes of this agreement that while Customer is not a Covered Entity under
HIPAA, Customer abides by equivalent standards included in Washington State Uniform Health Care Information Act of
1991 and amendments thereto codified at R.C.W. 70.02 (“RCW 70.02”). The Parties further acknowledge for purposes of
this agreement that while Provider is not Customer’s Business Associate under HIPAA, Provider is obligated to abide by
equivalent standards included in RCW 70.02.
1.2. Pursuant to HIPAA and RCW 70.02, the City of Auburn (“Customer”) a Washington State municipality and Julota, or
any of its corporate affiliates, (“Provider”), a Colorado limited liability company, enter into this Healthcare Confidentiali ty
Compliance Agreement (“HCCA”) as of the effective date of the Software as a Service Agreement ( the “Effective Date”)
that addresses the RCW 70.02 and HIPAA requirements with respect to “business associates,” as defined under the
privacy, security, breach notification, and enforcement rules at 45 C.F.R. Parts 160 and 164 (“HIPAA Rules”) and
“contractors” as referred to in RCW 70.02. A reference in this HCCA to a section in the HIPAA Rules means the section
as in effect or as amended.
1.3. This HCCA is intended to ensure that Provider will establish and implement appropriate safeguards for the Protected
Health Information (“PHI”) (as defined under the HIPAA Rules) that Provider may receive, create, maintain, use, or
disclose in connection with the functions, activities, and services that Provider performs for Customer. The functions,
activities, and services that Provider performs for Customer are defined in the Software as a Service Agreement entered
between Provider and Customer (the “Underlying Agreement”).
1.4. Pursuant to changes required under the Health Information Technology for Economic and Clinical Health Act of 2009
(the “HITECH Act”) and under the American Recovery and Reinvestment Act of 2009 (“ARRA”), this HCCA also reflects
federal breach notification requirements imposed on Provider when “Unsecured PHI” (as defined under the HIPAA Rules)
is acquired by an unauthorized party and the expanded privacy and security provisions imposed on business associates.
1.5. Unless the context clearly indicates otherwise, the following terms in this HCCA shall have the same meaning as
those terms in the HIPAA Rules: Breach, Data Aggregation, Designated Record Set, disclosure, Electronic Media,
Electronic Protected Health Information (ePHI), Health Care Operations, individual, Minimum Necessary, Notice of Privacy
Practices, Required By Law, Secretary, Security Incident, Subcontractor, Unsecured PHI, and use.
1.6. A reference in this HCCA to the Privacy Rule means the Privacy Rule, in conformity with the regulations at 45 C.F.R.
Parts 160-164 (the “Privacy Rule”) as interpreted under applicable regulations and guidance of general application
published by the HHS, including all amendments thereto for which compliance is required, as amended by the HITECH
Act, ARRA and the HIPAA Rules.
2. General Obligations of the Parties
2.1. The Parties agree that any defined term used in this HCCA which has different meanings under HIPAA Rules and
RCW 70.02, the meaning ascribed in RCW 70.02 will govern; and further, that any defined term used in this HCCA that is
not defined in RCW 70.02, the definition included in the HIPAA Rules will govern.
3. General Obligations of the Provider
3.1. Provider agrees not to use or disclose PHI, other than as permitted or required by this HCCA or as Required By Law,
or if such use or disclosure does not otherwise cause a Breach of Unsecured PHI.
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3.2. Provider agrees to use appropriate safeguards and comply with Subpart C of 45 C.F.R. Part 164 with respect to ePHI,
to prevent use or disclosure of PHI other than as provided for by the HCCA.
3.3. Provider agrees to mitigate, to the extent practicable, any harmful effect that is known to Provider as a result of a use
or disclosure of PHI by Provider in violation of this HCCA’s requirements or that would otherwise cause a Breach of
Unsecured PHI.
3.4. The Provider agrees to the following breach notification requirements:
(a) Provider agrees to report to Customer in writing any Breach of Unsecured PHI not provided for by the HCCA of
which it becomes aware within 5 calendar days of “discovery” within the meaning of the HITECH Act. Such notice shall
include (i) the identification of each individual whose Unsecured PHI has been, or is reasonably believed by Provider to
have been, accessed, acquired, or disclosed in connection with such Breach; (ii) a description of the types of Unsecured
PHI that were involved in the Breach; (iii) any recommended steps the individual(s) whose PHI was inappropriately
disclosed should take to protect themselves from potential harm; and, (iv) a brief description of what the Provider is doing
to investigate the unauthorized access or use of PHI. In addition, Provider shall provide any additional information
reasonably requested by Customer for purposes of investigating the Breach and any other available information that
Customer is required to include to the individual under 45 C.F.R. § 164.404(c) at the time of notification or promptly
thereafter as information becomes delayed. Provider’s notification of a Breach of Unsecured PHI under this Section shall
comply in all respects with each applicable provision of section 13400 of Subtitle D (Privacy) of ARRA, the HIPAA Rules
and related guidance issued by the Secretary or the delegate of the Secretary from time to time.
(b) In the event of Provider’s use or disclosure of Unsecured PHI in violation of HIPAA, the HITECH Act, or ARRA,
Provider bears the burden of demonstrating that notice as required under this Section 2.4 was made, including evidence
demonstrating the necessity of any delay, or that the use or disclosure did not constitute a Breach of Unsecured PHI.
3.5. Provider agrees, in accordance with 45 C.F.R. §§ 164.502(e)(1)(ii) and 164.308(b)(2), if applicable, to require that
any Subcontractors that create, receive, maintain, or transmit PHI on behalf of the Provider agree in writing to the same
restrictions, conditions, and requirements that apply to the Provider with respect to such information.
3.6. Provider agrees to make available PHI in a Designated Record Set to Customer as necessary to satisfy Customer’s
obligations under 45 C.F.R. § 164.524 and RCW 70.02.080.
(a) Provider agrees to comply with an individual’s request to restrict the disclosure of their personal PHI in a manner
consistent with 45 C.F.R. § 164.522, except where such use, disclosure, or request is required or permitted under
applicable law.
(b) Provider agrees that when requesting, using, or disclosing PHI in accordance with45 C.F.R. § 164.502(b) (1) that
such request, use, or disclosure shall be to the minimum extent necessary, including the use of a “limited data set” as
defined in 45 C.F.R. §164.514(e)(2), to accomplish the intended purpose of such request, use, or disclosure, as interpreted
under related guidance issued by the Secretary from time to time.
3.7. Provider agrees to make any amendments to PHI in a Designated Record Set as directed or agreed to by the
Customer pursuant to 45 C.F.R. § 164.526 or RCW 70.02.100, or take other measures as necessary to satisfy Customer’s
obligations under 45 C.F.R. § 164.526 and RCW 70.02.100.
3.8. Provider agrees to maintain and make available the information required to provide an accounting of disclosures to
Customer as necessary to satisfy Customer’s obligations under 45 C.F.R. § 164.528 and RCW 70.02.020.
3.9. Provider agrees to make its internal practices, books, and records, including policies and procedures regarding PHI,
relating to the use and disclosure of PHI and Breach of any Unsecured PHI received from Customer, or created or received
by the Provider on behalf of Customer, available to Customer (or the Secretary) for t he purpose of Customer or the
Secretary determining compliance with the Privacy Rule (as defined in Section 8).
3.10. To the extent that Provider is to carry out one or more of Customer’s obligation(s) under Subpart E of 45 C.F.R. Part
164, Provider agrees to comply with the requirements of Subpart E that apply to the Customer in the performance of such
obligation(s).
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3.11. Provider agrees to account for the following disclosures:
(a) Provider agrees to maintain and document disclosures of PHI and Breaches of Unsecured PHI and any information
relating to the disclosure of PHI and Breach of Unsecured PHI in a manner as would be required for Customer to respond
to a request by an individual or the Secretary for an accounting of PHI disclosures and Breaches of Unsecured PHI.
(b) Provider agrees to provide to Customer, or to an individual at Customer’s request, information collected in
accordance with this Section 2.11, to permit Customer to respond to a request by an individual or the Secretary for an
accounting of PHI disclosures and Breaches of Unsecured PHI.
(c) Provider agrees to account for any disclosure of PHI used or maintained as an Electronic Health Record (as defined
in Section 5) (“EHR”) in a manner consistent with 45 C.F.R. § 164.528 and related guidance issued by the Secretary from
time to time; provided that an individual shall have the right to receive an accounting of disclosures of EHR by the Provider
made on behalf of the Customer only during the three years prior to the date on which the accounting is requested from
Customer.
(d) In the case of an EHR that the Provider acquired on behalf of the Customer as of January 1, 2009, paragraph (c)
above shall apply to disclosures with respect to PHI made by the Provider from such EHR on or after January 1, 2014. In
the case of an EHR that the Provider acquires on behalf of the Customer after January 1, 2009, paragraph (c)above shall
apply to disclosures with respect to PHI made by the Provider from such EHR on or after the later of January 1, 2011 or
the date that it acquires the EHR.
3.12. Provider agrees to comply with the “Prohibition on Sale of Electronic Health Records or Protected Health
Information,” as provided in section 13405(d) of Subtitle D (Privacy) of ARRA, and the “Conditions on Certain Contacts as
Part of Health Care Operations,” as provided in section 13406 of Subtitle D (Privacy) of ARRA and related guidance issued
by the Secretary from time to time.
3.13. Provider acknowledges that, effective on the Effective Date of this HCCA, it shall be liable under the civil and criminal
enforcement provisions set forth at 42 U.S.C. 1320d-5 and 1320d-6, as amended, for failure to comply with any of the use
and disclosure requirements of this HCCA and any guidance issued by the Secretar y from time to time with respect to
such use and disclosure requirements.
4. Permitted Uses and Disclosures by Provider.
4.1. General Uses and Disclosures. Provider agrees to receive, create, use, or disclose PHI only in a manner that is
consistent with this HCCA, RCW 70.02, the Privacy Rule, Security Rule (as defined in Section 5), the Underlying
Agreement, and only in connection with providing services to Customer; provided that the use or disclosure would not
violate the Privacy Rule, including 45 C.F.R. § 164.504(e), if the use or disclosure would be done by Customer. For
example, the use and disclosure of PHI will be permitted for “treatment, payment and health care operations,” in
accordance with the Privacy Rule.
4.2. Provider may use or disclose PHI as Required By Law.
4.3. Provider agrees to make uses and disclosures and requests for PHI: Consistent with Customer’s Minimum Necessary
policies and procedures.
4.4. Provider may not use or disclose PHI in a manner that would violate Subpart E of 45 C.F.R. Part 164 if done by the
Customer.
4.5. Specific Other Uses and Disclosures:
(a) Except as otherwise limited in this HCCA, Provider may use PHI to provide Data Aggregation Services to Customer
as permitted by HIPAA.
(b) Except as otherwise provided in this HCCA, Provider may use PHI for its proper management and administration
or to carry out its legal responsibilities as permitted under applicable law.
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(c) Provider may use PHI to report violations of law to appropriate federal and state authorities, consistent with 45
C.F.R. § 164.502(j)(1).
(d) Pursuant to the Underlying Agreement, Provider is authorized to use PHI to de-identify the information in accordance
with 45 C.F.R. § 164.514(a)-(c) as Resultant Data (as defined in the Underlying Agreement) solely for the purpose of
providing services to Customer.
5. OBLIGATIONS OF CUSTOMER
5.1. Customer shall:
(a) Notify Provider of any restriction to the use or disclosure of PHI that Customer has agreed to or is required to abide
by under 45 C.F.R. § 164.522, to the extent that such restriction may affect Provider’s use or disclosure of PHI under this
HCCA.
(b) Notify Provider of any changes in or revocation of permission by an individual to use or disclose PHI, if such change
or revocation may affect Provider’s permitted or required uses and disclosures of PHI under this HCCA.
(c) Customer shall not request Provider to use or disclose PHI in any manner that would not be permissible under the
Privacy and Security Rule if done by Customer, except as provided under Section 3 of this HCCA.
6. Compliance with Security Rule
6.1. Provider shall comply with the HIPAA Security Rule, which shall mean the Standards for Security of Electronic
Protected Health Information at 45 C.F.R. Part 160 and Subparts A and C of Part 164, as amended by ARRA and the
HITECH Act. The term “Electronic Health Record” or “EHR” as used in this HCCA shall mean an electronic record of
health-related information on an individual that is created, gathered, managed, and consulted by authorized health care
clinicians and staff.
6.2. In accordance with the Security Rule, Provider agrees to:
(a) Implement the administrative safeguards set forth at 45 C.F.R. § 164.308, the physical safeguards set forth at 45
C.F.R. § 164.310, the technical safeguards set forth at45 C.F.R. § 164.312, and the policies and procedures set forth at
45 C.F.R. § 164.316 to reasonably and appropriately protect the confidentiality, integrity, and availability of the ePHI that
it creates, receives, maintains, or transmits on behalf of Customer as required by the Security Rule. Provider
acknowledges that, effective on the Effective Date of this HCCA, (a) the foregoing safeguards, policies, and procedures
requirements shall apply to Provider in the same manner that such requirements apply to Customer, and (b) Provider shall
be liable under the civil and criminal enforcement provisions set forth at 42 U.S.C.1320d-5 and 1320d-6, as amended from
time to time, for failure to comply with the safeguards, policies, and procedures requirements and any guidance issued by
the Secretary from time to time with respect to such requirements;
(b) Require that any agent, including a Subcontractor, to whom it provides such PHI agrees in writing to implement
reasonable and appropriate safeguards no less stringent than the obligations of Provider described herein to protect the
PHI; and
(c) Report to the Customer any Security Incident of which it becomes aware within five calendar days.
7. Indemnification
7.1. Provider will indemnify, hold harmless and defend Customer for any third party claims, losses, liabilities, costs and
expenses (including attorney fees) incurred as a result or arising directly or indirectly out of or in connection with (a) an y
breach, or non-fulfillment of any undertaking on the part of Provider under this HCCA; (b) any claims, demands, awards,
judgments, actions, penalties, and proceedings made by any person or organization, arising out of Provider’s obligations
under this HCCA; and (c) a breach of unsecured PHI caused by Provider or its subcontractors or agents.
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8. Term and Termination
8.1. This HCCA shall be in effect as of the date first written above, and shall terminate on the earlier of the date that:
(a) Either party terminates for cause as authorized under Section 10.
(b) All of the PHI received from Customer, or created or received by Provider on behalf of Customer, is destroyed or
returned to Customer. If it is not feasible to return or destroy PHI, protections are extended in accordance with Section 5.
(c) Upon either party’s knowledge of material breach by the other party, the non -breaching party may immediately
terminate this HCCA upon written notice to the non-breaching party. Alternatively, the non-breaching party may provide
an opportunity for the breaching party to cure the breach or end the violation. If the breaching party does not cure the
breach or end the violation within a reasonable timeframe not to exceed 30 days from the notification of the breach, or if
a material term of the HCCA has been breached and a cure is not possible, the non-breaching party may terminate this
HCCA and the Underlying Agreement, upon written notice to the other party.
8.2. Upon termination of this HCCA for any reason, the parties agree that Provider, with respect to PHI received from
Customer, or created, maintained, or received by Provider on behalf of Customer, shall:
(a) Retain only that PHI that is necessary for Provider to continue its proper management and administration or to carry
out its legal responsibilities.
(b) Return to Customer or, if agreed to by Customer, destroy the remaining PHI that the Provider still maintains in any
form.
(c) Continue to use appropriate safeguards and comply with Subpart C of 45 C.F.R. Part 164 with respect to ePHI to
prevent use or disclosure of the PHI, other than as provided for in this Section 5, for as long as Provider retains the PHI.
(d) Not use or disclose the PHI retained by Provider other than for the purposes for which such PHI was retained and
subject to the same conditions set out at Section 3.5 above which applied prior to termination.
(e) Return to Customer or, if agreed to by Customer, destroy the PHI retained by Provider when it is no longer needed
by Provider for its proper management and administration or to carry out its legal responsibilities.
(f) Recover any PHI in possession if its subcontractors or agents. If it is not feasible for Provider to obtain, from any
subcontractor or agent any PHI in possession of the subcontractor or agent, the Provider must provide a written
explanation to Customer and require the subcontractors and agents to agree to extend any and all protection, limitation
and restrictions contained in this HCCA, and to limit any further uses and/or disclosures to purposes that make the return
or destruction of the PHI infeasible.
If the destruction of PHI is reasonably determined to be infeasible by Provider, Provider shall notify Customer in writing.
Such notification shall include (i) a statement that the Provider has determined that it is not feasible to return or destroy
the PHI in its possession, and (ii) the specific reason for such determination. If the determination is made that return or
destruction of PHI is not feasible, Provider agrees to extend any and all protections, limitation and restrictions contained
in this HCCA to such PHI and shall take appropriate measures to segregate or protect the remaining PHI from further
uses and/or disclosures.
8.3. The obligations of Provider under this Section 7 shall survive the termination of this HCCA.
9. MISCELLANEOUS
9.1. The parties agree to take such action as is necessary to amend this HCCA to comply with the requirements of the
Privacy Rule, the Security Rule, HIPAA, ARRA, the HITECH Act, the HIPAA Rules, RCW 70.02, and any other applicable
law.
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9.2. The respective rights and obligations of Provider under Section 6 and Section 7 of this HCCA shall survive the
termination of this HCCA.
9.3. This HCCA shall be interpreted in the following manner:
(a) Any ambiguity shall be resolved in favor of a meaning that permits Customer to comply with the HIPAA Rules.
(b) Any inconsistency between the HCCA’s provisions and the HIPAA Rules, including all amendments, as interpreted
by the HHS, court, or another regulatory agency with authority over the Parties, shall be interpreted according to the
interpretation of the HHS, the court, or the regulatory agency.
(c) Any provision of this HCCA that differs from those mandated by the HIPAA Rules, but is nonetheless permitted by
the HIPAA Rules, shall be adhered to as stated in this HCCA.
(d) If any portion of this HCCA is inconsistent with the terms of the Underlying Agreement, the terms of the HCCA shall
be construed so as not to defeat the intent of the parties with respect to the Underlying Agreement, consistent with RCW
70.02, HIPAA and the HITECH Act. The execution of this HCCA shall in no event constitute a waiver by either party of
any rights or remedies it may have under the Underlying Agreement.
9.4. This HCCA constitutes the entire agreement between the parties related to the subject matter of this HCCA, except
to the extent that the Underlying Agreement relates to the use and protection of PHI upon Provider. This HCCA supersedes
all prior negotiations, discussions, representations, or proposals, whether oral or written. This HCCA may not be modified
unless done so in writing and signed by a duly authorized representative of both parties. If any provision of this HCCA, or
part thereof, is found to be invalid, the remaining provisions shall remain in effect.
9.5. This HCCA will be binding on the successors and assigns of the Customer and the Provider. However, this HCCA
may not be assigned, in whole or in part, without the written consent of the other party. Any attempted assignment in
violation of this provision shall be null and void.
9.6. This HCCA may be executed in two or more counterparts, each of which shall be deemed an original. Facsimile or
electronic PDF copies hereof shall be deemed to be originals.
9.7. Except to the extent preempted by federal law, this HCCA shall be governed by and construed in accordance with
the same internal laws as that of the Underlying Agreement.
9.8. Nothing in this HCCA shall confer upon any person other than the parties and their respective successors or assigns,
any rights, remedies, obligations, or liabilities whatsoever.
IN WITNESS WHEREOF, the parties hereto have executed this HCCA as of the date first above written.
City of Auburn, WA (“Customer”) TouchPhrase Development, LLC (“Provider”)
By: _______________________ _______________ By: _______________________
Name: Nancy Backus, Mayor DATE Name: _____________________
Attest: Title: ___________________
By: _______________________ _______________ Date: ____________________
Name: Shawn Campbell, City Clerk DATE
Approved as to form:
By: _______________________ _______________
Name: Douglas Ruth, DATE
Assistant City Attorney
DocuSign Envelope ID: F4E7F4AE-D198-405E-AB39-3639A9682EE8
2/19/2020
2/19/2020
Scott Cravens
2/19/2020
CEO
2/19/2020