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, . _ ._._- ---.... ..� extent its defense is mate�iaily prejud�ed by tt►e de�y, {ii) sde c�ontrot over the defense and settlsment of the Claim, prov�ded that Mun3cipaliry wii!not admit fault by tltie Buiidingeye indemn�ees or agrse to any settlement that wouid impose obiigatians or restrictions on Buikiingeye (other than payment af sums whicfi would bs paid by Municipali#y under this Section 7.4)without Buildirtgeye's priar writCen cronsertt, rrot to be urtreasonabPy witt��ne�d, delayed or conditioned;and (iii) ail assistance, infwmation and authority reasanably requested by Municipality for the defense and/or settlement of ihe Claim. 8. CON�iDENTtALtTY.Eac4�pa�ty shaN keep costi�'�ttia1 arx�nflt dis�close to any thisd party a4t isti#ocmatinn and materiai provided ar made availabte by the other party that is rna►ked as conf'rdential or proprietary or (for orally disciosed informatio�) is identfied as co�ritial or proprietary at the time o# disdosure and oo�rmed in writing (inciuding e-maii) as such wkhin fifteen (15) days of #he disclosure {"ConfideMial Information°), Without limiti�g the foregoing, any infotmation reganding planned modifications or updates to the Piatfonn or refating to other Buildi�geye products and services constitutes Confidential Information of Buildingeye. Each party shall keep and instruct its employees anti agents to keep Conficientlal Infonnati�on confidendal by using at least the same care and discretion as used with that party's own c�nfidential infoRnation, but in no case less than a pruder�t and reasonable standard of care. Neither party st�aN use Confrdential Information ather than for purposes af performing its obiigat�ons hereunder or as autMorized by i#�e d�sdos+ng party. lr�formatian or materials shaN not oonstitute Co�rfideMial Ir�fortn�ion if it is: (i) in the public domain through no fauit of the receiv�ng party, (ii)known to tl3e receiving party prior to the time of discbsure by the disclasing paiiy. (iii)lawtuAy and righttulfy disctosed to ihe nec;etvin9 party by a thiM party on a non-confidentiat basis, (iv) devetoped by the receiving party without reference to Confidential I�foRnation or (v} requirsd to be disctosed by law or legal process, pror+ide� that the receiving party promptiy provides notice to the disciosing party of such request or requiremerrt as provided in this Sedion so the discbsing party may seek appropriate protective orders_ If any party, its employees ar agents breaches or threatens ta breach the oWigations of this Secticm 8, the affected party rnay seek injunciive re�ief irom a oourt of cornpetent jurisdiCtion, in addftion to its other reme�es, as the inadequacy of monetary damages and irreparable harm are adcnowledge�d_ Buildingeye acknowled�s that Munieipality is a public agency that is subject to the Srowrr Act arzd ti�at th�s Agreeme»!or portior�s thereof may be sUblad to pt�blic discbsure w'rtha�rt notice to Buiidingeye. Further, Buiid�geye adcnowledges that Municipality is subject to document requests pursuant to the Califomia Public Records Act and Freedom of Information Act('Acts"). Municipality shali notify Buiidingeye within five{5) business days of receiving a request under the Acts for any records which would constitute Cor�fidential Info�nation and to the extent allowed by law, Municipality shall apply exceptions to cfisclosurs of the Conf'idential Ir�formation that are applicable under the A�cts. If a suit is filed by a member of the public with respect to any such request, Municipality will �ooperate in any actian to inte�verte�led by Buildingeye. S. LtMtTATtOIY OF LIABItiTY. EXCEPT WtTH RESPECT TO E(THER PaRTY'S BREACH OF SECTIONS 7 OR 8AND EXCEPT WITH RESPECT TO AMOUNTS PAYABLE TO THIRD PARTIES UNDER SECTION 7, NEITHER PARTY SHALL BE LIABLE IN CONNECTION WITH THIS AGREEMENT FOR ANY PUNITIVE, INCIDENTAL, INDIRECT, SPECIAL, RELIANCE OR CONSEQUENTIAL DAMAGES, INCLUDING LOST BUSINESS, REVENUE, OR PROFITS, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING IdEGLIGENCE) OR OTHERWISE, AND WHETHER OR NOT THE PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. EXCEPT W1TN RESPECT TO AMOUNTS PAYABLE TO THIRD PARTIES UNDER SECTION 7, IN NO EVENT WILL THE AGGREGATE LIA8r�1TY 4F BU��DINGEYE�OR DAMAGES UhlDER THIS AGREEMENT EXC�ED THE SUM OF THE TOTAL FEES PAtD OR PAYABLE TO BUILDINGEYE UNDER THIS AGREEMENT DURING THE TWELVE MONTHS IMMEDIATELY PRECEDING THE DATE OF THE CLAIM. THE PARTIES AGREE THAT THE LIMfTATIONS AfdD OISCLAIMERS OF 11ABILITY SET FORTH IN THIS SECTION 9 WILL APPLY EVEN IF ANY LIMlTED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE AND REGARDLESS OF THE THEORY OF LIABILITY. 10. MISCELLANEOUS. 10.1 Publi ' . Du�ing the Term, 6uildingeye may list Mu�icipality as a Buildingeye client on its website and other mahceting and promotional materials, �ecluding through use of any tradematics or logos adopted by Municipality only with the prior express written approval of Municipality (such approval not to be unreasonably withheld, d+alayed or conditlo�ed). {n addition, durfng the Term BuHdh�geye may issue press refeases regardh�g ttte relatbnsfi�beiween the parties created by this Agreement, including up�n mutual execution of this Agreernent and upon complet�on of the lntegration, only with the prior express written approval of Municipality of the content of tt�e �ess refeass(s) (such approval not ta be unreasonably withheld, c�layed ar conditioned). 10.2 RelatiQnship of the Parties. The parties are independent contractors with respect to each other. This Agreement does�t constitute and shall not be construed as constituting a partnership or joint venture among the parties hereto, or an employee-employer relationship. No party shall have any right to obligate or bi�d any other parry in any REV:07-23-15 VR Page S of 13 ATTY/AGR.2015.145Bui1dingEye/Planning Application Web Map Service