R15-079 1 RESOLUTION NO. R15 -079
2
3 A RESOLUTION OF THE CITY OF BOYNTON BEACH,
4 FLORIDA, APPROVING AND AUTHORIZING THE CITY
5 MANAGER TO SIGN A MASTER SERVICES AND LICENSE
6 AGREEMENT WITH OPEN, INC., D/B /A SAFETYPAD TO
7 PROVIDE ELECTRONIC PATIENT CARE REPORTING
8 SOFTWARE AND TRAINING UTILIZING PALM BEACH
9 j COUNTY CONTRACT 15- 006R/LC WITH THE SAME TERMS,
10 ! CONDITIONS, SPECIFICATIONS AND PRICING; AND
11 PROVIDING AN EFFECTIVE DATE.
12
13 WHEREAS, the City of Boynton Beach has been awarded EMS Data Collection
14 j grant funding in the amount of $33,800 from the Bureau of Emergency Medical Oversight
15 ' (BEMO) and the Florida Department of Transportation (FDOT) to initiate an electronic
16 patient care reporting (ePCR) system for the City's Fire Rescue Department; and
17 WHEREAS, after thorough research, SafetyPad was the only company that could
18 provide the service required while remaining within the grant guidelines and costs; and
19 WHEREAS, upon recommendation of staff, the City Commission does hereby
20 approves and authorizes the City Manager to sign a Master Services and License
21 Agreement with oPen, Inc., d/b /a SafetyPad to provide electronic Patient Care Reporting
22 software and training utilizing Palm Beach County Contract 15- 006R/LC with the same
23 terms, conditions, specifications and pricing.
24 NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION
25 OF THE CITY OF BOYNTON BEACH, FLORIDA, THAT:
26 Section 1. The foregoing "Whereas" clauses are hereby ratified and confirmed as
27 being true and correct and are hereby made a specific part of this Resolution upon adoption
28 hereof.
29 Section 2. The City Commission hereby approves and authorizes the City
30 Manager to sign a Master Services and License Agreement with oPen, Inc., d /b /a
31 SafetyPad to provide electronic Patient Care Reporting software and training utilizing
32 Palm Beach County Contract 15- 006R/LC with the same terms, conditions, specifications
33 and pricing.
34 Section 3. That this Resolution shall become effective immediately.
35
1 PASSED AND ADOPTED this 7 day of July, 2015.
2
3 CITY OF BOYNTON BEACH, FLORIDA
4
5 YES NO
6
7 ! Mayor — Jerry Taylor
8
9 Vice Mayor — Joe Casello
10
11 Commissioner — David T. Merker ✓
12
13 Commissioner — Mack McCray ✓
14
15 Commissioner — Michael M. Fitzpatrick
16
17
18 VOTE 5-0
19
20 ATTEST:
21
22
23 r/I.. h A-11-Lti
24 J t M. Prainito, MMC
25 ty Clerk
26 G 1 Y Op
27
28
29 ( . o ,a eal)
30 c,
31 0 �.. `'
1
32 tiT N
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MASTER SERVICES AND LICENSE AGREEMENT BETWEEN
SAFETYPAD and BOYNTON BEACH FIRE RESCUE
THIS MASTER SERVICES AND LICENSE AGREEMENT ( "Agreement") is entered into
( "Effective Date ") by and between oPEN inc. d /b /a SafetyPAD, a Minnesota corporation with its
principal place of business located at 7760 France Avenue South, 11 Floor, Minneapolis
Minnesota 55435 ( "SafetyPAD ") and Boynton Beach Fire Rescue, a Municipal Fire Protection
and Emergency Medical Service with its principal place of business located at 2080 High Ridge
Road, Boynton Beach, FL 33426 ( "Licensee "). SafetyPAD and Licensee may be individually
referred to as a "Party" or collectively as "Parties."
RECITALS
A. SafetyPAD is the owner and licensor of an electronic patient care reporting
system that allows first responders to accurately generate pre - hospital care documentation.
B. Licensee provides first responder services.
C. Licensee wishes to license from SafetyPAD, and SafetyPAD wishes to license to
Licensee, a perpetual, non - exclusive license for that certain electronic patient care reporting
system and other software products and related maintenance and services associated with such
software products, as hereinafter provided.
NOW THEREFORE, the Parties agree as follows:
1.0 GRANT OF LICENSE
1.1 License. SafetyPAD grants a license to Licensee to use SafetyPAD's electronic
patient care reporting software (the "Software ") in conjunction with the Licensee's
performance of its first responder activities during the term of this Agreement, subject to the
use provisions contained herein. Except as otherwise provided herein, Licensee may not assign,
convey, license, re- license, sell, grant, distribute, pledge or otherwise transfer (in whole or in
part, whether for profit or not), this license to any other person, corporation, firm, partnership
or other entity.
1.2 Sole Right. Licensee acknowledges that SafetyPAD is the sole owner of the
Software and all rights and goodwill associated therewith. Nothing in this Agreement shall give
Licensee any right, title or interest in or to the Software other than those expressly provided
herein.
1.3 Adverse Claims. Licensee acknowledges SafetyPAD's ownership of the Software
and shall not claim adversely to SafetyPAD, or assist any third party in attempting to claim
adversely to SafetyPAD, with regard to such ownership.
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1.4 Infringement. During the term of this Agreement, Licensee shall notify
SafetyPAD promptly of all infringing or unauthorized uses of the Software of which Licensee
becomes aware.
2.0 TERMS OF USE
2.1 Title. Licensee and SafetyPAD agree that SafetyPAD owns all proprietary rights,
including patent, copyright, trade secret, trademark and other proprietary rights, in and to the
Software, and any corrections, bug fixes, enhancements, updates or other modifications,
including custom modifications, to the Software, whether made by SafetyPAD, Licensee, or any
third party.
2.2 Transfers. Licensee shall not sell, license, sub - license, publish, display,
distribute, or otherwise transfer to a third party the Software or any copy thereof, in whole or in
part, without SafetyPAD's prior written consent.
2.3 Marketing. Licensee shall not use the Software or any other SafetyPAD product
for its own marketing, sales, or other ancillary use without express written permission from
SafetyPAD. SafetyPAD may reference Licensee in its marketing materials or website with no
further notice to Licensee.
2.4 Database and Patient Care Report Ownership. SafetyPAD alone owns its
proprietary database. All patient care reports belong to the Licensee, and SafetyPAD by virtue of
this Agreement acquires no rights or licenses, including, without limitation, intellectual property
rights or licenses, to use the Licensee's data for its own purposes.
3.0 TERM
3.1 Duration. This Agreement and the license granted hereunder and pursuant to
the End User License Agreement attached hereto as Exhibit A shall take effect on the Effective
Date and remain in effect until terminated as provided for in Section 5.0 below.
3.2 Maintenance Agreement Term. The Maintenance Agreement set forth on the
attached Exhibit B shall remain in effect under the monthly application solutions provider pricing
model ( "ASP Pricing Model ") noted until otherwise terminated as provided for in Section 5.0
below.
4.0 COMPENSATION AND FEES
4.1 Compensation. Licensee shall pay SafetyPAD for the Software license
and all other additional services under the Monthly Pricing and Maintenance schedule,
attached hereto as Exhibit C. Charges will accrue from the specified "go -live" date or
when 100 or more billable runs have been submitted through the SafetyPAD system for
billing. Any additional requested on -site visits outside of those set forth in this
Agreement may be subject to per diem costs for all expenses, including, but not limited
to, lodging, transportation, meals, and incidentals.
4.2 Invoice. SafetyPAD shall submit to Licensee an invoice for amounts due to:
City of Boynton Beach
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4.3 Due Date. Licensee shall pay SafetyPAD within thirty (30) days of the invoice
date. Failure of Licensee to pay SafetyPAD within thirty (30) days of invoice date constitutes an
Event of Default and subjects such overdue amounts to a 2.5% late fee.
4.4 Archival Charge. Licensee agrees to pay SafetyPAD a charge of $0.20 per
gigabyte per month, beginning five (5) years after the Effective Date, for any archival storage of
Licensee data ( "Archival Charge "). Upon written request to SafetyPAD, Licensee may export
and save all records older than five (5) years in a Licensee - designated storage location to avoid
the Archival Charge. In the alternative, SafetyPAD will continue to store the records and add the
Archival Charge to Licensee's monthly invoice.
5.0 TERMINATION
5.1 Events of Default. Either Party may terminate this Agreement and the licenses
granted herein upon the occurrence of one or more of the following "Events of Default" by the
other Party:
a. violation of any material provision of this Agreement;
b. termination, suspension, winding up, or liquidation of a Party's business
operations, voluntarily or otherwise;
c. a Party becoming subject to any bankruptcy or insolvency proceeding
under federal or state law; or
d. a Party becoming insolvent or subject to direct control by a trustee,
receiver or similar authority.
5.2 Notice of Breach and Time to Cure. In case of an Event of Default, the non -
breaching Party shall provide written notice to the breaching Party of the Event of Default and
allow the breaching Party fourteen (14) days from receipt of notice to cure said breach prior to
the non - breaching party having the right to terminate this Agreement.
5.3 Licensee Termination. Notwithstanding Sections 5.1 and 5.2, Licensee may
terminate this Agreement, in its sole discretion, at any time, by giving written notice to
SafetyPAD at least sixty (60) days prior to the effective date of such termination. In the event of
such termination, Licensee shall pay to SafetyPAD compensation for all services rendered and
approved, and all expenses incurred up to the effective date of termination, including set -up
and training expenses. Licensee shall not be liable to SafetyPAD for additional compensation or
expenses incurred after the effective date of termination, other than as provided herein. In no
event shall Licensee be liable for any consequential or incidental damages.
5.4 SafetyPAD Termination. Notwithstanding Sections 5.1 and 5.2, Licensee's
failure to timely make any payments hereunder shall be an Event of Default that constitutes
good cause for SafetyPAD to terminate this Agreement with ten (10) days written notice to
Licensee.
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5.5 Return of Software. Within ten (10) days after termination of this Agreement,
Licensee shall (i) return to SafetyPAD, at Licensee's expense, the Software and all copies thereof,
(ii) delete or destroy all other copies of the Software, and (iii) deliver to SafetyPAD a
certification, in writing signed by an officer of Licensee, that the Software has been returned, all
copies deleted or destroyed, and use of the Software has been discontinued (the "Termination
Procedure "). The Termination Procedure shall include and extend to SafetyPAD mobile,
SafetyPAD Enterprise and any other SafetyPAD - related application. Continued use of any
SafetyPAD- related product after termination will result in Licensee remaining subject to
continued maintenance fees. In the event the Termination Procedure is not followed, SafetyPAD
shall be entitled to receive from Licensee additional compensation equal to the pricing
described in Exhibit C.
5.6 Export of Patient Care Reports. Upon termination of this Agreement, Licensee
shall utilize imbedded features within SafetyPAD 'Enterprise' to export its own data in .pdf form,
along with a corresponding data file (.xml). Proper planning must occur to ensure all data
transfer occurs prior to the ten (10) day period set forth above. Upon Licensee confirming
receipt and reconciliation of all patient care reports, SafetyPAD shall return, erase, destroy, or
render unreadable all Licensee data in its entirety in a manner that prevents its physical
reconstruction through the use of commonly available file restoration utilities, and upon request
from Licensee, certify in writing that these actions have been completed.
6.0 CONFIDENTIAL INFORMATION
6.1 Confidential Information. The Parties are each the individual owners of trade
secrets, copyrights, patent rights and other intellectual confidential rights in and to certain
products, software, and technology (the "Confidential Information "). The Parties have or will
disclose to one another the Confidential Information for the purposes contemplated by this
Agreement. Each Party has or will receive the Confidential Information under the terms and
conditions of this Agreement.
6.2 Protection of Confidential Information. The Parties shall each take all necessary
action to protect the confidentiality of the Confidential Information of the other Party, shall hold it
in strict confidence, and shall not disclose or publish or permit the disclosure or publication of it to
any person or entity except as provided for in this Agreement. Without limiting the generality of
the foregoing, each Party agrees to use at least the same degree of care to avoid unauthorized
disclosure, use or publication of the Confidential Information as it employs with respect to its own
confidential information.
6.3 Disclosure. The Parties may disclose the Confidential Information to their own
employees and agents, and to others for whom it is reasonably necessary to disclose for the
purposes of this Agreement; provided, however, said persons shall be advised of the provisions
of this Agreement and shall agree in writing to be bound by these provisions.
6.4 Ownership and Use of Confidential Information. The Confidential Information of
each Party will remain the property of that Party. No licenses or transfers of ownership or other
rights are expressed or implied by this Agreement, except that the Parties may use the Confidential
Information for the purposes contemplated by this Agreement. The Confidential Information shall
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not be used by the Parties, directly or indirectly, for any purpose other than the purposes set forth
in this Agreement. In addition, at no time shall the Confidential Information provided by the
disclosing Party be utilized directly or indirectly by the receiving Party contrary to the business
interests of the disclosing Party or contrary to the intellectual property rights of the disclosing Party.
The disclosing Party specifically prohibits and does not grant any right to the receiving Party to
disassemble or reverse engineer or decompile or otherwise fragmentize and recompile the
Confidential Information.
6.5 Return of Confidential Information. Upon termination of this Agreement, or upon
the request of the disclosing Party to whom the Confidential Information belongs, the Confidential
Information shall be returned to the disclosing Party, including all equipment, software, technical
materials, copies, notes, memoranda or other material related thereto. No copies of the
Confidential Information shall be retained by the other Party or any person or entity under its
direction and control.
6.6 Non- Confidential Information. Confidential Information does not include
information that: (i) was known by the receiving Party prior to receipt of the information from
the disclosing Party prior to the confidentiality obligation; (ii) becomes known through a third
party without a confidentiality obligation; (iii) becomes public knowledge through no wrongful
act of the receiving Party; or (iv) is disclosed pursuant to a requirement of a governmental
agency or law; provided, however that notification of such request is made to the disclosing
Party by the receiving Party.
6.7 Compliance with Law. SafetyPAD shall comply with Minnesota Statute, Chapter
325C, "Uniform Trade Secrets Act." Licensee shall comply with any applicable local, state and
federal laws pertaining to the protection of trade secrets then in effect and applicable to
businesses and /or government agencies operating within the state where the Licensee regularly
conducts its business operations.
7.0 CHANGE ORDER REQUEST. Licensee may request changes in the services provided
within the scope of this Agreement by completing a change order request. If such changes are
feasible, SafetyPAD, in its sole discretion, will provide Licensee with a Change Order, which shall
include the costs and time necessary to complete the Change Order. No claim for additional
compensation or services shall be recognized unless contained in a duly executed Change Order.
Any services added to the scope of this Agreement by a Change Order shall be executed subject
to all other terms of this Agreement.
8.0 HIPAA
8.1 The Parties shall carry out their obligations under this Agreement in compliance
with the privacy regulations pursuant to Public Law 104 -191 of August 21, 1996, known as the
Health Insurance Portability and Accountability Act of 1996, Subtitle F — Administrative
Simplification, Sections 261, et seq., as amended ( "HIPAA "), to protect the privacy of any
personally identifiable protected health information ( "PHI ") that is collected, processed or
learned as a result of the billing services provided hereunder. In conformity therewith, the
Parties agree that they will:
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a. Not use or further disclose PHI except as permitted under this Agreement or
required by law;
b. Use appropriate safeguards to prevent use or disclosure of PHI except as
permitted by this Agreement;
c. To mitigate, to the extent practicable, any harmful effect that is known to the
parties of a use or disclosure of PHI by the Parties in violation of this Agreement;
d. Report to the other Party any use or disclosure of PHI not provided for by this
Agreement of which either Party becomes aware;
e. Ensure that any agents or subcontractors to whom the parties provide PHI, or
who have access to PHI, agree to the same restrictions and conditions that apply
to the Parties with respect to such PHI;
f. Make PHI available to either Party and to the individual who has a right of
access as required under HIPAA within thirty (30) days of the request by either
Party regarding the individual;
g. Incorporate any amendments to PHI when notified to do so by either Party;
h. Provide an accounting of all uses or disclosures of PHI made by the Parties as
required under the HIPAA privacy rule within sixty (60) days;
Make their internal practices, books and records relating to the use and
disclosure of PHI available to the Secretary of the Department of Health and
Human Services for purposes of determining the parties compliance with HIPAA;
and
j. At the termination of the Agreement, return or destroy all PHI received from, or
created or received by either Party on behalf of the other Party, and if return is
infeasible, the protections of this Agreement will extend to such PHI.
8.2. The specific uses and disclosures of PHI that may be made by either Party on
behalf of the other Party include:
a. The preparation of invoices to patients, carriers, insurers and others responsible
for payment or reimbursement of the services provided by the Parties to its
patients;
b. Preparation of reminder notices and documents pertaining to collections of
overdue accounts;
c. The submission of supporting documentation to carriers, insurers and other
payers to substantiate the health care services provided by the Parties to its
patients or to appeal denials of payment for same;
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d. Uses required for the proper management of the parties as business associates;
and
e. Other uses or disclosures of PHI as permitted by the HIPAA privacy rule.
9.0 INDEMNIFICATION
9.1 Mutual Indemnification. Each Party shall indemnify and hold the other harmless
from any and all losses, damages, liabilities, claims, demands, suits, or causes of action,
including attorneys' fees and expenses of defending against such claims, demands, suits, or
causes of action, which may arise out of the performance of this Agreement as a result of an act
of negligence or intentional acts, omissions, or wrongdoings of the Party, its employees, agents,
representatives, consultants, or subcontractors.
9.2 Software Indemnification. To the extent permitted by law, SafetyPAD agrees to
indemnify and hold the Licensee and its officers, directors, employees, consultants, agents and
subcontractors harmless against any and all losses, damages, liabilities, claims, demands, suits,
or causes of action, including attorneys' fees and expenses of defending against such claims
demands, suits, or causes of action, resulting from (i) third -party claims for violations of patent
rights or other intellectual property rights against the Licensee or its customers, arising out of
the Software licensed pursuant to this Agreement, or (ii) third -party claims based on defects or
non - performance of the Software, or breach of warranty, or representations made by
SafetyPAD.
9.3 Indemnification Procedures. Promptly after receipt by either Party of notice of
any demand, action, proceeding, claim or potential claim (collectively, a "Claim "), which would
give rise to a right to indemnification, such Party shall give the Party who may become obligated
to provide indemnification (the "Indemnifying Party") written notice describing the Claim in
reasonable detail. Such Indemnifying Party shall have the right, at its option, to compromise or
defend, at its own expense and by its own counsel, any such matter involving the Claim. If the
Indemnifying Party shall undertake to compromise or defend any such Claim, it shall promptly
notify the Party seeking indemnification of its intention to do so, and the Party seeking
indemnification shall cooperate fully with the Indemnifying Party and its counsel in the
compromise of, or defense against, any such Claim. All costs and expenses incurred in
connection with such cooperation (other than the cost of internal personnel, and the fees and
expenses of any attorneys, of the Party seeking indemnification) shall be borne by the
Indemnifying Party. In any event, the Party seeking indemnification shall have the right, at its
own expense to participate in the defense of such Claim. In no event shall the Party seeking
indemnification compromise such Claim without the written consent of the Indemnifying Party.
9.4 Survival. The above provisions shall survive the termination of this Agreement
and shall pertain to any occurrence during the term of this Agreement, even though the claim
may be made after the termination hereof. No arbitration or other action under this Agreement
may be brought by either Party against the other more than one (1) year after the cause of
action arises.
10.0 NO AGENCY OR AUTHORITY. Nothing in this Agreement shall be construed to create an
agency, joint venture, partnership or other form of business association between the Parties.
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Neither Party has the right or authority to make any contract, representation, or binding
promise of any nature on behalf of the other Party, whether oral or written, without the express
written consent of the other Party.
11.0 UNCONTROLLABLE FORCES. Except for Licensee's obligation to make payment
hereunder, neither Party shall be considered to be in default of this Agreement if delays in or
failure of performance shall be due to any event which results in the prevention or delay of
performance by a Party of its obligations under this Agreement and which is beyond the
reasonable control of the non - performing Party, including, but not limited to, fire, flood,
earthquakes, storms, lightning, epidemic, war, riot, civil disturbance, sabotage, terrorism,
governmental actions, manufacturer's shortages or constraints on parts or products, or any
other cause beyond the reasonable control of such Party ( "Uncontrollable Force "). In the event
of such Uncontrollable Forces, the time for performance will be extended for a period of time
equal to the length of the delay or inability to perform, plus an additional reasonable period to
recommence performance.
12.0 ASSIGNMENT. Licensee shall not assign or otherwise transfer the Software or this
Agreement to anyone, including any parent, subsidiary, affiliated entity or third party, or as part
of the sale of any portion of its business, or pursuant to any merger, consolidation or
reorganization, without SafetyPAD's prior written consent. Nothing in this Agreement shall
prevent SafetyPAD from assigning or otherwise transferring any of its rights or obligations
herein so long as the assignee of this Agreement assumes all obligations and liabilities
hereunder.
13.0 NOTICES. All notices pertaining to this Agreement inin reement shall be delivered or mailed to such
g
Party at their respective address as follows:
If to: SafetyPAD
oPEN, inc. d /b /a SafetyPAD
Attn: Josh Austin, Chief Technology Officer
7760 France Avenue South, 11 Floor
Minneapolis, MN 55435
If to: LICENSEE
Boynton Beach Fire Rescue
2080 High Ridge Road
Boynton Beach, FL 33426
14.0 DISPUTE RESOLUTION; VENUE. All disputes and claims relating to this Agreement, the
rights and obligations of the Parties herein, and any claims or causes of action relating to the
performance of either Party, shall first be referred for resolution to each respective Party's
senior management. If such persons cannot resolve the matter within sixty (60) days of
commencing negotiations, then the aggrieved Party shall refer the dispute to arbitration to be
held at the office of the American Arbitration Association ( "AAA ") in Minneapolis, Minnesota or
the office of the AAA nearest Licensee's site. The arbitration shall be held in accordance with the
United States Arbitration Act (9 U.S.C. § 1 et seq.) and the AAA Commercial Arbitration Rules
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then in effect; provided, however, that the Parties agree that any arbitration shall be conducted
under AAA's expedited procedures then in effect, regardless of the amount in controversy. Each
Party may be represented by counsel in such arbitration proceeding.
The arbitration proceeding shall be conducted by one arbitrator who shall be selected by the
AAA. The Parties agree to request the arbitrator to render a written decision within three (3)
months of the request for arbitration or within two (2) months after appointment of the
arbitrator, whichever is earlier. To the extent permitted under applicable law, such award shall
be final and binding upon both Parties. Any costs, fees or expenses incident to enforcing the
award shall, to the maximum extent permitted by law, be charged against the Party resisting
such enforcement. Judgment upon an award rendered by the arbitrator may be entered in any
court of competent jurisdiction, or application may be made to such court for a judicial
acceptance of the award and an order of enforcement, as the law of such jurisdiction may
require or allow. Each Party shall be responsible for its own costs and expenses of arbitration.
15.0 CHOICE OF LAW. All questions pertaining to the validity and interpretations of this
Agreement shall be determined in accordance with the laws of the Licensee is located.
16.0 NO WAIVER. The failure on the part of either Party to exercise any right or remedy
hereunder will not operate as further waiver of such right or remedy in the future or any other
right or remedy.
17.0 SEVERABILITY. Should any part, term or provision of this Agreement be decided by a
court of competent jurisdiction to be illegal or in conflict with any law of the Licensee's state,
the validity of the remaining portions or provisions shall not be affected thereby.
18.0 SURVIVAL. Sections 5.5, 5.6, 6.0, 9.0, 14.0 and 15.0 shall survive the termination of this
Agreement.
19.0 ENTIRE AGREEMENT. This Agreement contains the entire agreement between the
Parties. The Licensee and SafetyPAD each represent that in entering into this Agreement each
has not relied on any previous oral and /or implied representations, inducements or
understandings of any kind or nature.
20.0 ATTACHMENTS. The following named attachments are made an integral part of this
Agreement:
Exhibit A: SafetyPAD End User License Agreement
Exhibit B Maintenance Agreement
Exhibit C Monthly Pricing and Maintenance
IN WITNESS OF THE FOREGOING, this Agreement is executed Effective Date first set forth
above.
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OPEN, INC. d /b /a SAFETYPAD, a LICENSEE
Minnesota corporation
A
BY — ���� ��� By Cfr /V/
/Josh Austin
Its Chief Technology Officer Its L..\ e,LY
1 +' FOR ,
CITY ATTORNEY
I
I
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Exhibit A
SafetyPAD End User License Agreement
This End -User License Agreement ( "EULA ") is a legal agreement between (a) Licensee (either an
individual or a single entity) and (b) SafetyPAD that governs Licensee's use of any Software
Product installed on or made available by SafetyPAD for use with Licensee's SafetyPAD mobile,
desktop applications or associated products (each a "SafetyPAD Product "). Other software
provided by third parties and used with a SafetyPAD Product may be subject to a separate EULA.
The term "Software Product," as used in this EULA, means computer software and may include
associated media, printed materials and "online" or electronic documentation. An amendment
or addendum to this EULA may accompany the SafetyPAD Product.
BY DOWNLOADING OR INSTALLING SAFETYPAD MOBILE, OR CONNECTING TO THE SAFETYPAD
DATABASE, LICENSEE AGREES TO BE BOUND BY THE TERMS OF THIS EULA. LICENSEE ALSO
ACCEPTS THIS EULA IF LICENSEE KEEPS THE SAFETYPAD PRODUCT FOR 30 DAYS. IF LICENSEE
DOES NOT ACCEPT THESE LICENSE TERMS, LICENSEE'S SOLE REMEDY IS TO DISCONTINNUE THE
INSTALLATION PROCESS OR RETURN UNUSED SAFETYPAD PRODUCT (HARDWARE AND
SOFTWARE) TO LICENSEE'S PLACE OF PURCHASE WITHIN 30 DAYS FOR A REFUND SUBJECT TO
THE REFUND POLICY OF LICENSEE'S VENDOR.
1. GRANT OF LICENSE. SafetyPAD grants Licensee the following non - exclusive rights provided
Licensee agrees to and complies with all terms and conditions of this EULA:
a.) Use. Licensee may use the Software Product license only as integrated with the
SafetyPAD Product and only on a single computer at one time ( "Licensee's Computer ").
Licensee may install with additional 3rd party application or software. Licensee may not
separate component parts of the Software Product from the SafetyPAD Product.
Licensee does not have the right to distribute the Software Product. Licensee may install
the Software Product into Licensee computer devices for purposes of using the
SafetyPAD Product.
b.) Storage. The Software Product may only be stored or copied into the SafetyPAD
Product and may not be separated from the SafetyPAD Product.
c.) Reservation of Rights. The Software Product is licensed, not sold, to Licensee by
SafetyPAD. SafetyPAD and its suppliers own all right, title and interest in and to the
Software Product and reserve all rights not expressly granted to Licensee in this EULA.
Licensee agrees to refrain from any action that would diminish such rights or would call
them into question.
d.) Freeware. Notwithstanding the terms and conditions of this EULA, all or any portion
of the Software Product which constitutes non - proprietary SafetyPAD software or
software provided under public license by third parties ( "Freeware "), is licensed to
Licensee subject to the terms and conditions of the software license agreement
accompanying such Freeware whether in the form of a discrete agreement, shrink wrap
license or electronic license terms accepted at time of download. Use of the Freeware
by Licensee shall be governed entirely by the terms and conditions of such license.
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2. UPGRADES. To use a Software Product identified as an upgrade, Licensee must first be
licensed for the original Software Product identified by SafetyPAD as eligible for the upgrade.
After upgrading, Licensee may no longer use the original Software Product that formed the basis
for its upgrade eligibility.
3. ADDITIONAL SOFTWARE. This EULA applies to updates or supplements to the original
Software Product provided by SafetyPAD unless SafetyPAD provides other terms along with the
update or supplement. In case of a conflict between such terms, the other terms will prevail.
Without limitation to the preceding terms, Licensee agrees to be bound by the terms of the
AirWatch End User License Agreement ( "AirWatch EULA "). The complete terms of the AirWatch
EULA are hereby incorporated by reference, and may be reviewed at:
www. air - watch .com /downloads /legal/20140701 AirWatch EULA.pdf
4. TRANSFER.
a.) Third Party. The Software Product may only be transferred to another end user as
part of a transfer of the SafetyPAD Product on which it is installed. Any transfer must include all
component parts, media, printed materials and this EULA. The transfer may not be an indirect
transfer, such as a consignment. Prior to the transfer, the end user receiving the transferred
product must agree to all the EULA terms. Upon transfer of the SafetyPAD Product, Licensee
license is automatically terminated.
b.) Restrictions.
i. Licensee shall not rent, lease or lend the Software Product or use the
Software Product for commercial timesharing or bureau use;
ii. Licensee shall not sublicense, assign or transfer the license or Software
Product except as expressly provided in this EULA;
iii. Licensee shall not employ any SafetyPAD competitor to use the Software on
Licensee's behalf, view the Software or documentation, or provide management, staging,
support, hosting or similar services with regard to the Software without prior written consent of
SafetyPAD; and
iv. Licensee shall not permit any party, whether acting directly or on behalf of
Licensee, to breach or violate any of these License Restrictions.
5. PROPRIETARY RIGHTS. All intellectual property rights in the Software Product and user
documentation are owned by SafetyPAD or its suppliers and are protected by law, including but
not limited to United States copyright, trade secret, and trademark law, as well as other
applicable laws and international treaty provisions. The structure, organization and code of the
Software Product are the valuable trade secrets and confidential information of SafetyPAD and
its suppliers. Licensee shall not remove any product identification, copyright notices or
proprietary restrictions from the Software Product or SafetyPAD Product.
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6. LIMITATION ON REVERSE ENGINEERING. Licensee may not reverse engineer, decompile,
disassemble or create derivative works of the Software Product, except and only to the extent
that the right to do so is mandated under applicable law. Nothing contained herein shall be
construed, expressly or implicitly, as transferring any right, license or title to Licensee other than
those explicitly granted under this EULA. Unauthorized copying of the Software Product or
failure to comply with the above restrictions will result in automatic termination of this
Agreement and will constitute immediate, irreparable harm to SafetyPAD for which monetary
damages would be an inadequate remedy, in which case injunctive relief will be an appropriate
remedy for such breach.
7. TERM. This EULA is effective unless terminated or rejected. This EULA will also terminate
upon conditions set forth elsewhere in this EULA or if Licensee fails to comply with any term or
condition of this EULA.
8. CONSENT TO USE OF DATA. Licensee agrees that SafetyPAD and its affiliates or suppliers may
collect and use technical information Licensee provides in relation to support services related to
the Software Product. SafetyPAD and its suppliers agree not to use this information in a form
that personally identifies Licensee except to the extent necessary to provide such services.
9. DISCLAIMER OF WARRANTIES. Licensee acknowledges that the SafetyPAD Product is for the
collection, documentation and reporting of Emergency Medical Services data. The Software
Product is offered on an "AS -IS" basis and SafetyPAD does NOT warrant that the functions
contained in the Software Product will meet Licensee's requirements or that the operation of
the Software Product will be uninterrupted or error free. Computer software is inherently
subject to bugs and potential incompatibility with other computer software and hardware.
Licensee should not use the Software Product for any applications in which failure could cause
any significant damage or injury to persons or tangible or intangible property.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SAFETYPAD AND ITS SUPPLIERS
PROVIDE THE SOFTWARE PRODUCT "AS IS" AND WITH ALL FAULTS, AND HEREBY DISCLAIM
ALL OTHER WARRANTIES AND CONDITIONS, EITHER EXPRESS, IMPLIED, OR STATUTORY,
INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE AND NON - INFRINGEMENT, ANY
IMPLIED WARRANTIES, DUTIES OR CONDITIONS OF MERCHANTABILITY, OF FITNESS FOR A
PARTICULAR PURPOSE, AND OF LACK OF VIRUSES ALL WITH REGARD TO THE SOFTWARE
PRODUCT. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY SAFETYPAD OR A
SAFTEYPAD AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY.
Some states /jurisdictions do not allow exclusion of implied warranties or limitations on the
duration of implied warranties, so the above disclaimer may not apply to Licensee in its entirety.
IN NO EVENT DOES SAFETYPAD PROVIDE ANY WARRANTY OR REPRESENTATIONS WITH RESPECT
TO ANY THIRD PARTY HARDWARE OR SOFTWARE WITH WHICH THE SAFETYPAD PRODUCT IS
DESIGNED TO BE USED, AND SAFETYPAD DISCLAIMS ALL LIABILITY WITH RESPECT TO ANY
FAILURES THEREOF.
10. LIMITATION OF LIABILITY. Notwithstanding any damages that Licensee might incur, the
entire liability of SafetyPAD and any of its suppliers under any provision of this EULA and
Licensee's exclusive remedy for all of the foregoing shall be limited to the greater of the amount
actually paid by Licensee for the SafetyPAD Product or US$100.00.
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TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL SAFETYPAD
OR ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL
DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF
PROFITS, FOR LOSS OF DATA OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, FOR
PERSONAL INJURY, FOR LOSS OF PRIVACY ARISING OUT OF OR IN ANY WAY RELATED TO THE
USE OF OR INABILITY TO USE THE SOFTWARE PRODUCT, OR OTHERWISE IN CONNECTION
WITH ANY PROVISION OF THIS EULA), EVEN IF SAFETYPAD OR ANY SUPPLIER HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF THE REMEDY FAILS OF ITS
ESSENTIAL PURPOSE.
Some states /jurisdictions do not allow the exclusion or limitation of incidental or consequential
damages, so the above limitation or exclusion may not apply to Licensee.
11. U.S. GOVERNMENT CUSTOMERS. Consistent with FAR 12.211 and 12.212, Commercial
Computer Software, Computer Software Documentation, and Technical Data for Commercial
Items are licensed to the U.S. Government under SafetyPAD's standard commercial license.
12. COMPLIANCE WITH EXPORT LAWS. Licensee shall comply with all laws and regulations of
the United States and other countries ( "Export Laws ") to ensure that the Software Product is
not (1) exported, directly or indirectly, in violation of Export Laws, or (2) used for any purpose
prohibited by Export Laws, including, without limitation, nuclear, chemical, or biological
weapons proliferation.
13. CAPACITY AND AUTHORITY TO CONTRACT. Licensee represents that it is duly authorized to
enter into this EULA.
14. APPLICABLE LAW. This EULA is governed by the laws of the United State law, State of
Minnesota exclusive of conflict of law provisions and Licensee's attorney to the jurisdiction of
the courts of the State of Minnesota with respect to any proceedings arising from this EULA. The
Parties hereby agree that this EULA is not governed by the United Nations Convention on
Contracts for the International Sale of Goods.
15. ENTIRE AGREEMENT. This EULA (including any addendum or amendment to this EULA
which is included with the SafetyPAD Product) is the entire agreement between Licensee and
SafetyPAD relating to the Software Product and it supersedes all prior or contemporaneous oral
or written communications, proposals and representations with respect to the Software Product
or any other subject matter covered by this EULA. To the extent the terms of any SafetyPAD
policies or programs for support services conflict with the terms of this EULA, the terms of this
EULA shall control. In the event of a conflict between the English and any non - English versions of
this EULA, the English version shall govern. If any provision of this EULA is held by a court of
competent jurisdiction to be contrary to law, such provision will be changed and interpreted so
as to best accomplish the objectives of the original provision to the fullest extent allowed by law
and the remaining provision of the EULA will remain in force and effect.
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Exhibit B
Maintenance Agreement
This Maintenance Agreement is incorporated into the Master Services and License
Agreement between SafetyPAD and Licensee.
A. Included Maintenance. Maintenance included in this agreement is as follows:
1. All Core Software and Customized Software, excluding potential ongoing 3` party
maintenance fees (such as medical device manufacturer).
2. Corrections of defects in SafetyPAD so that SafetyPAD will operate with reliable
functionality and without loss of data.
3. Periodic updates to SafetyPAD that may incorporate (i) corrections of any defects,
(ii) fixes of any bugs, and (iii) at the sole discretion of SafetyPAD, enhancements
to the SafetyPAD. Updates will be provided either remotely or on -site based on
the complexity of the upgrade.
4. 24 -hour telephone support to assist the Licensee in utilizing and managing the
overall use of SafetyPAD, subject to the terms set forth below. Standard
response times will be within 8 hours, excluding federal holidays. On federal
holidays, 24 -hour technical support with 8 -hour response times will be provided
for system -wide critical failure of the SafetyPAD system. Email and internet-
based maintenance and support are included in the Maintenance Agreement.
5. For support- related issues, Maintenance Level I is based on SafetyPAD being
contacted only after a support issue is unresolved by the Licensee's internal
support staff. The Licensee will follow support guidelines that have been
provided to the Licensee by SafetyPAD. In the event the issue is not resolved by
the Licensee using these guidelines, the issue will be escalated to SafetyPAD's
support team.
6. Maintenance - related problems are usually resolved by interfacing via phone (voice
or remote connection) or remote access software, such as Microsoft Terminal
Services or a similar product provided and installed by SafetyPAD onto the
Licensee's server.
7. Maintenance at SafetyPAD's office of a test version, including a test database, for
the most recent version of the Licensee's software release.
B. Excluded Maintenance. Maintenance excluded from this Maintenance
Agreement is as follows:
1. Custom Programming Services. These services may be necessary to accommodate
features or functionality unique to an agency's unique needs and requirements.
However, any software changes or enhancements to SafetyPAD that can be
utilized by most EMS agencies may be included as part of maintenance at no
additional charge.
2. End -users questions and issues pertaining to:
i. The general use of the hardware or non - SafetyPAD software products; and
ii. Licensee network functionality and performance.
3. On -site support. (See On -Site Support below).
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4. On -site training.
5. Hardware and related supplies. Warranty for hardware varies on manufacturer's
terms and conditions. SafetyPAD must be contacted by the Licensee in the
event any hardware defects occur. If equipment is procured through
SafetyPAD, defective equipment should be sent to SafetyPAD with a SafetyPAD-
issued return number, unless otherwise specified by SafetyPAD. Once repaired,
the hardware manufacturer or SafetyPAD will send properly configured
equipment back to the Licensee. The hardware manufacturer and the Licensee
will pay postage expenses.
Should SafetyPAD offer any maintenance enhancements for the Maintenance Agreement
procured by the Licensee to any of its existing or future clients, those enhancements will be
provided to the Licensee at no additional charge. Maintenance enhancements include any
modification to the existing inclusions and exclusions outlined above, or additions that result in
a greater level of maintenance and support for a particular maintenance plan.
On - Site Support
On -site support to Licensee is an optional add -on to this Maintenance Agreement. Any on -site
support plan will be billed to Licensee upon such terms and conditions agreed -upon by Licensee
and SafetyPAD.
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Exhibit C
Monthly Pricing and Maintenance
Software and Integration Costs
The prices set forth below shall apply for the term of the Master Services and License
Agreement between the Licensee and SafetyPAD.
Core Software and Integration.
** The following are "not to exceed" prices. At preparation of this exhibit several factors that may
impact pricing were unknown.
Description of Services / Product
Electronic Patient Care Reporting $ 1.15 per record
Unlimited mobile installations on Android ice cream
sandwich or newer OS.
Unlimited user access to web -based SafetyPAD Enterprise
SafetyPAD Hosted Virtual Servers
Airwatch Mobile Device Management $ 7.00 per device /per month
Per device fee- required for Android
Full administrative controls per agency
(http. / /www.air- watch.com/)
Electronic Health Information Exchange - Included
Hospital
Utilizing SafetyPAD API protocol specifications
CAD Interface $ 50.00 per month
SafetyPAD need scope Maximum price per month
Other:
NEMSIS 3.0 (ONLY) included
State Extract
Hosting, Back -Up, Archiving included
Data storage > 60 months $0.20 per GB /month
Fire RMS Interface $ TBD month
SafetyPAD need scope
Faxing (ePCR volume)
1 -20000 Included in MDFR contract
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20000 -40000 $ N /A
40000 -80000 $ N /A
* *note pricing based on current SafetyPAD hosted server,
may require eFax **
Training on - site:
Training $1500 per trainer /per trip
Per Day Fee $1900 per day (2- 3hr sessions per day)
Web Session $80.00 hr
One (1) field web session (3 hours training) $320.00 per session
Administrative training web sessions
Min 4 -6 Hours web Admin Training $960.00
Plus device configuration and set -up
xPlore Ranger X Hardware- Android SafetyPAD is a certified reseller for Xplore
Base unit, fully 'loaded'. products. Contact your representative for
pricing details
Mounting, accessories, etc available.
Pricing can be provided.
http. / /www.xploretech.com /products /rangerx
Fee Definitions
Annual ePCR Volume - invoices will be submitted based on the monthly total ePCR's in the
database. Records with a status of "inactive" are not billed. Year -end reconciliation may be
performed.
• Monthly volumes are calculated based on records written using SafetyPAD each
medical- rescue dispatch.
o An example of pricing is as follows:
• Engine, rescue and truck are dispatched to a "man down" call. Three
units are dispatched and three patient care reports are created. This is
billed as three separate charges.
• If a record is written and submitted to the SafetyPAD database, it is calculated as part of
the annual run volumes and applicable charges will apply.
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• SafetyPAD will calculate Annual Run Volumes for ALL records in the SafetyPAD database
to include Active and Inactive (or similar status) runs. Runs that are classified as "test"
or "training" type runs are not calculated in the annual run volumes.
• Every patient report (ePCR) for any dispatched unit is included in the Annual Run
Volume calculations when accounts are reconciled.
SafetyPAD Mobile and Enterprise - The monthly fee noted includes all components specified in
the Summary of SafetyPAD features EXCEPT State Extract, CAD Integration and Fire RMS
Integration. This includes but is not limited to:
• Project Management (included in base fee)
o Remote Implementation and Planning Meetings
o Up to 8 hours of initial Mobile and Enterprise configuration training and
support is included in the administrative fees
• Mobile Clinical Configuration
• Rules /Protocol Guidelines Set -Up and Configuration (To -do list)
• Initial Mobile Image Creation: Tablet Devices
• Guidelines Mobile Web Page
• Physio LifePAK12 /15 ECG Configuration set -up support
o Development, configure, Billing Extract, Auto Fax, Automation alerts
o Remote: Go -live and Post Go -live support
o Mobile to Mobile Configuration and Testing
o System End to End Testing and Modifications
o On -going maintenance upgrades: Mobile and Enterprise
o 24/7 Tier 2 support
• SafetyPAD Mobile
o ECG Interface with Medtronic LifePAK devices
• Philips MRx, Zoll medical devices for windows (not yet Android
supported)
o Wireless SafetyPAD to SafetyPAD Transfers
o Billing automation:
• Android: only NEMSIS 3 formatted .xml files are available.
o Patient Lookup module
• Android release expected by Q3 2015
o Autofax
• Currently provided via SafetyPAD hosting center. Phone company
changes may require pricing to be reevaluated and an eFax solution
provided
o Wireless data management- custom responsible for wireless
services /payments
o NFIRS basic Module if applicable
o CAD interface if applicable
o Access to all SafetyPAD mobile enhancements and releases.
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• SafetyPAD Enterprise (web -based application)
o Unlimited user access to all available modules
o Data hosting via Amazon Web Services - SafetyPAD provided
• Android offered ONLY in SafetyPAD hosted environments
o Web -based access to all reports
o Administrative tools for configuration
o Redundant back -up systems
• Vendor support for additional back -ups
o Billing XML or API
• Standard SafetyPAD formatted file - automated send
• Configured to generate on customer defined triggers /periods
• Can utilize SafetyPAD API for data extraction
o Automated Enterprise updates
• State Extract: NEMSIS 3
o For windows sites NEMSIS 2.2 and NEMSIS 3.0 are available.
o Only NEMSIS 3.0 offered for Android products.
o Includes up to 10 hrs of programming, review and configuration
o SafetyPAD provides the interface application- output is a State defined XML
file
o SafetyPAD supports ONLY NEMSIS structured XML outputs
o The Licensee is responsible for running, validating logs using SafetyPAD
tools and upload submissions to State where applicable.
• CAD Integration (If applicable)
o Includes up to 20 hrs of programming, review and configuration
o Excludes 3rd party fees (from CAD Vendor or similar)
o SafetyPAD specified XML or API structured files
• FIRE RMS Integration (If applicable)
o Includes up to 15 hrs of programming, review and configuration
o Excludes 3rd party fees (from CAD Vendor or similar)
Support Definitions
Tier 1 Support
This is the initial support level for basic customer issues. It is synonymous with first -line support,
level 1 support and front -end support. The first job of a Tier 1 specialist is to gather the
customer's information and to determine the customer's issue by analyzing the symptoms and
figure out the underlying problem based on SafetyPAD administrative level training. When
analyzing the symptoms, it is important for the technician to identify what the customer is trying
to accomplish so that time is not wasted on "attempting to solve a symptom instead of a
problem." Once identification of the underlying problem is established, the specialist can begin
sorting through the possible solutions available. Technical support specialists in this group
typically handle straightforward and simple problems while using knowledge of the SafetyPAD
management tools. This includes troubleshooting methods such as verifying physical layer
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issues, resolving username and password problems, uninstalling /reinstalling basic software
applications, verification of proper hardware and software set up, and assistance with
navigating around application menus. Personnel at this level have a basic to general
understanding of the product or service and may not always contain the competency required
for solving complex issues. Nevertheless, the goal for this group is to handle 80% -90% of the
user problems before finding it necessary to escalate the issue to a higher level. The billing
vendor will implement its own 1st level support process and define it to SafetyPAD and the
customer.
Tier 2 Support
SafetyPAD is responsible for Tier 2 support. The agency will submit a support ticket to
support@safetypad.com. Maintenance support is further set forth and detailed in Exhibit B of
the Master Services Agreement. Tier 2 support is synonymous with level 2 support, support
line 2, administrative level support, and various other headings denoting advanced technical
troubleshooting and analysis methods. Technicians working in Tier 2 support are responsible for
assisting Tier I personnel to solve basic technical problems and for investigating elevated issues
by confirming the validity of the problem and seeking known solutions related to more complex
issues.
Mobile Repair or Remote Mobile Computer Repair
The agency will be responsible for remote PC repair or remote computer repair. SafetyPAD
technicians will install mobile software or assist clients with installations that allows its
technician to access the user's desktop via the Internet or implement a hardware support
process only with the user's permission. The technician can take control of the user's mouse
and keyboard, transfer various diagnostic and repair applications to the user's desktop, run
scans, install antivirus programs, etc. This remote software is to be installed on SafetyPAD
Mobile platforms. If the remote service permits it, the technician can even reboot the PC and
reconnect remotely to continue his work without the user needing to assist. The agency will
implement its own hardware support process.
END OF AGREEMENT
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